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LIBRARY 

THE  UNIVERSITY 
OF  CALIFORNIA 

SANTA  BARBARA 


PRESENTED  BY 

Westwick  and    Col  1  i son 


BOUVIER'S  LAW  DICTIONARY 

A  CONCISE 

ENCYCLOPEDIA  OF  THE   LAW 

RAWLE'S  REVISION 


Digitized  by  the  Internet  Archive 
m     in  2008  with  funding  from 
Microsoft  Corporation 


http://www.archive.org/details/bouvierslawdicti01bouv 


JOHN  EOUVSER 


(Tltf/US}- 


W,  E.  ,:.  3A  BOUVIER'S 


LAW    DICTIONARY 


CONCISE  ENCYCLOPEDIA 


BY  JOHN  BOUVIER 


Iptoratis  terminis  ignoratur  et  ars. — Co.  Lnr.  2a 

Jt  safs  que  chaque  science  el  chaque  art  a  ses  termes  propres,  inconnus 
au  commun  des  hommes. — Fleury 


7 


THIRD   REVISION 

(BEING  THE  EIGHTH  EDITION) 

BY    FRANCIS    RAWLE 

OF  THE  PHILADELPHIA  BAR 


VOLUME    1 


KANSAS  CITY,  MO. 
VERNON  LAW  BOOK  COMPANY 


ST.  PAUL.  MINN. 

WEST  PUBLISHING  COMPANY 

1914 


Entered  according  to  Act  of  Congress,  in  the  year  1839,  by 
JOHN  BOUVIEK, 
in  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Eastern  District  of 

Pennsylvania. 


Entered  according  to  Act  of  Congress,  in  the  year  1843,  by 

JOHN  BOUVIER, 

in  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Eastern  District  of 

Pennsylvania. 


Entered  according  to  Act  of  Congress,  in  the  year  1848,  by 
JOHN  BOUVIER, 

in  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Eastern  District  of 

Pennsylvania. 


Entered  according  to  Act  of  Congress,  in  the  year  1852,  by 

ELIZA  BOUVIER  and  ROBERT  E.  PETERSON,  Trustees, 

in  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Eastern  District  of 

Pennsylvania. 


Entered  according  to  Act  of  Congress,  in  the  year  1867,  by 

ELIZA  BOUVIER  and  ROBERT  E.  PETERSON,  Trustees, 

in  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Eastern  District  of 

Pennsylvania. 


Entered  according  to  Act  of  Congress,  in  the  year  18S3,  by 

ROBERT  E.  PETERSON, 
in  the  Office  of  the  Librarian  of  Congress  at  Washington. 


Copyright,  1S97,  by  R.  Evans  Peterson,  Trustee. 
Copyright,  1914,  by  Louis  D.  Peterson,  Trustee. 

(1  Bouv.) 


PREFACE 


It  has  been  the  purpose  of  the  Editor  in  preparing  this  his  Third  Revision  to 
treat  much  more  fully  all  encyclopaedic  titles,  except  those  in  which  there  has  been 
no  development  in  recent  years,  while  adding  many  dictionary  and  other  minor 
titles  not  found  in  the  last  Revision.  These  objects  and  the  great  changes  since 
1898,  the  date  of  the  last  Revision,  in  the  questions  which  have  occupied  the 
courts,  have  required  the  extension  of  the  work  to  three  volumes.  The  titles  of 
both  State  and  Federal  cases  have  for  the  first  time  been  inserted,  as  well  as 
the  volumes  of  the  different  series  of  reports  other  than  those  of  the  official  series. 
Titles  of  a  statutory  and  changing  nature  have  been  treated  less  fully,  so  as  to 
avoid  purely  ephemeral  matter. 

Judge  Baldwin  (Modern  Political  Institutions  241)  quotes  Jeremiah  Mason 
as  saying  that  the  development  of  an  American  Jurisprudence  can  only  be  looked 
for  from  the  courts  of  the  National  Government.  The  Editor  has  been  guided  by 
that  thought  and  sees  in  it  a  hope  of  increasing  uniformity  of  law,  towards  which 
the  profession,  in  its  work  on  uniform  legislation,  is  making  real  progress.  He 
has  therefore  constantly  cited  the  decisions  of  the  Supreme  Court  of  the  United 
States  and  very  frequently  those  of  the  lower  Federal  Courts.  Of  course,  on 
many  of  the  questions  now  being  passed  upon  by  the  State  Courts,  the  decisions 
of  the  Supreme  Court  are  of  binding  authority. 

The  Editor  is  indebted  to  George  H.  Bates  for  many  important  titles,  such  as 
Constitutional  Law,  Constitution  of  the  United  States,  Restraint  of  Trade  and 
Equity ;  to  R.  C.  Wildes  for  valuable  assistance  throughout ;  to  Charles  G.  Fen- 
wick,  Ph.  D.  (Johns  Hopkins),  author  of  the  "Neutrality  Laws  of  the  United 
States,"  for  revising  and  in  many  cases  rewriting  the  titles  relating  to  Interna- 
tional Law;   and  to  Norman  B.  Gwyn,  M.  D.,  for  revising  the  titles  relating  to 

Medical  Jurisprudence.  ~  -^ 

Francis  Rawle. 

Philadelphia,  November  3,  1914. 

(v)» 


SA.M   . 


PREFACE  TO  THE  FIRST  EDITION 


To  THE  difficulties  which  the  author  experienced  on  his  admission  to  the  bar, 
the  present  publication  is  to  be  attributed.  His  endeavors  to  get  forward  in  his 
profession  were  constantly  obstructed,  and  his  efforts  for  a  long  time  frustrated, 
for  want  of  that  knowledge  which  his  elder  brethren  of  the  bar  seemed  to  possess. 
To  find  among  the  reports  and  the  various  treatises  on  the  law  the  object  of  his 
inquiry,  was  a  difficult  task:  he  was  in  a  labyrinth  without  a  guide;  and  much  of 
the  time  which  was  spent  in  finding  his  way  out  might,  with  the  friendly  assist- 
ance of  one  who  was  acquainted  with  the  construction  of  the  edifice,  have  been 
saved,  and  more  profitably  employed.  He  applied  to  law  dictionaries  and  digests 
within  his  reach,  in  the  hope  of  being  directed  to  the  source  whence  they  derived 
their  learning;  but  he  was  too  often  disappointed:  they  seldom  pointed  out  the 
authorities  where  the  object  of  his  inquiry  might  be  found.  It  is  true  such  works 
contain  a  great  mass  of  information,  but,  from  the  manner  in  which  they  have 
been  compiled,  they  sometimes  embarrassed  him  more  than  if  he  had  not  consulted 
them.  They  were  written  for  another  country,  possessing  laws  different  from 
our  own,  and  it  became  a  question  how  far  they  were  or  were  not  applicable  here. 
Besides,  most  of  the  matter  in  the  English  law  dictionaries  will  be  found  to  have 
been  written  while  the  feudal  law  was  in  its  full  vigor,  and  not  fitted  to  the  pres- 
ent times,  nor  calculated  for  present  use,  even  in  England.  And  there  is  a  great 
portion  which,  though  useful  to  an  English  lawyer,  is  almost  useless  to  the  Ameri- 
can student.  What,  for  example,  have  we  to  do  with  those  laws  of  Great  Britain 
which  relate  to  the  person  of  their  king,  their  nobility,  their  clergy,  their  navy, 
their  army;  with  their  game  laws;  their  local  statutes,  such  as  regulate  their 
banks,  their  canals,  their  exchequer,  their  marriages,  their  births,  their  burials, 
their  beer  and  ale  houses,  and  a  variety  of  similar  subjects? 

The  most  modern  law  dictionaries  are  compilations  from  the  more  ancient, 
with  some  modifications  and  alterations ;  and,  in  many  instances,  they  are  servile 
copies,  without  the  slightest  alteration.  In  the  mean  time  the  law  has  undergone 
a  great  change.  Formerly  the  principal  object  of  the  law  seemed  to  be  to  regulate 
real  property,  in  all  its  various  artificial  modifications,  while  little  or  no  attention 
was  bestowed  upon  the  rules  which  govern  personal  property  and  rights.  The 
mercantile  law  has  since  arisen,  like  a  bright  pyramid,  amid  the  gloom  of  the 
feudal  law,  and  is  now  far  more  important  in  practice  than  that  which  refers  to 
real  estate.  The  law  of  real  property,  too,  has  changed,  particularly  in  this  coun- 
try. 

The  English  law  dictionaries  would  be  very  unsatisfactory  guides,  even  in 
pointing  out  where  the  laws  relating  to  the  acquisition  and  transfer  of  real  es- 
tate, or  the  laws  of  descent  in  the  United  States,  are  to  be  found.  And  the  student 
who  seeks  to  find  in  the  Dictionaries  of  Cowel,  Manly,  Jacobs,  Tomlins,  Cun- 
ningham, Burn,  Montefiore,  Pott,  Whishaw,  Williams,  the  Termes  de  la  Ley,  or 
any  similar  compilation,  any  satisfactory  account  in  relation  to  international  law, 
to  trade  and  commerce,  to  maritime  law,  to  medical  jurisprudence,  or  to  natural 

(vii) 


yjy  PREFACE 

law.  will  probably  not  be  fully  gratified.  He  cannot,  of  course,  expect  to  find  in 
them  any  thing  in  relation  to  our  government,  our  constitutions,  or  our  political  or 
civil  institutions. 

It  occurred  to  the  author  that  a  law  dictionary,  written  entirely  anew,  and 
calculated  to  remedy  those  defects,  would  be  useful  to  the  profession.  Probably 
overrating  his  strength,  he  resolved  to  undertake  the  task ;  and,  if  he  should  not 
fully  succeed,  he  will  have  the  consolation  to  know  that  his  effort  may  induce 
some  more  gifted  individual,  and  better  qualified  by  his  learning,  to  undertake 
such  a  task,  and  to  render  the  American  bar  an  important  service.  Upon  an  ex- 
amination of  the  constitution  and  laws  of  the  United  States,  and  of  the  several 
states  of  the  American  Union,  he  perceived  many  technical  expressions  and  much 
valuable  information  which  he  would  be  able  to  incorporate  in  his  work.  Many 
of  these  laws,  although  local  in  their  nature,  will  be  found  useful  to  every  lawyer, 
particularly  those  engaged  in  mercantile  practice.  As  instances  of  such  laws  the 
reader  is  referred  to  the  articles  Acknowledgment,  Descent,  Divorce,  Letters  of 
Administration  and  Limitation.  It  is  within  the  plan  of  this  work  to  explain  such 
technical  expressions  as  relate  to  the  legislative,  executive,  or  judicial  departments 
of  the  government ;  the  political  and  the  civil  rights  and  duties  of  the  citizens ; 
the  rights  and  duties  of  persons,  particularly  such  as  are  peculiar  to  our  institu- 
tions, as,  the  rights  of  descent  and  administration;  of  the  mode  of  acquiring  and 
transferring  property;  to  the  criminal  law,  and  its  administration.  It  has  also 
been  an  object  with  the  author  to  embody  in  his  work  such  decisions  of  the  courts 
as  appeared  to  him  to  be  important,  either  because  they  differed  from  former  judg- 
ments, or  because  they  related  to  some  point  which  was  before  either  obscure  or 
unsettled.  He  does  not  profess  to  have  examined  or  even  referred  to  all  the 
American  cases :  it  is  a  part  of  the  plan,  however,  to  refer  to  authorities,  gen- 
erally, which  will  lead  the  student  to  nearly  all  the  cases. 

The  author  was  induced  to  believe  that  an  occasional  comparison  of  the  civil, 
canon,  and  other  systems  of  foreign  law,  with  our  own,  would  be  useful  to  the 
profession,  and  illustrate  many  articles  which,  without  such  aid,  would  not  appear 
very  clear ;  and  also  to  introduce  many  terms  from  foreign  laws,  which  may  sup- 
ply a  deficiency  in  ours.  The  articles  Condonation,  Extradition,  and  Novation 
are  of  this  sort.  He  was  induced  to  adopt  this  course  because  the  civil  law  has 
been  considered,  perhaps  not  without  justice,  the  best  system  of  written  reason; 
and  as  all  laws  are,  or  ought  to  .be,  founded  in  reason,  it  seemed  peculiarly  proper 
to  have  recourse  to  this  fountain  of  wisdom :  but  another  motive  influenced  this 
decision ;  one  of  the  states  of  the  Union  derives  most  of  its  civil  regulations  from 
the  civil  law ;  and  there  seemed  a  peculiar  propriety,  therefore,  in  introducing  it 
into  an  American  law  dictionary.  He  also  had  the  example  of  a  Story,  a  Kent, 
Mr.  Angell,  and  others,  who  have  ornamented  their  works  from  the  same  source. 
And  he  here  takes  the  opportunity  to  acknowledge  the  benefits  which  he  has  de- 
rived from  the  learned  labors  of  these  gentlemen,  and  of  those  of  Judge  Sergeant, 
Judge  Swift,  Judge  Gould,  Mr.  Rawle,  and  other  writers  on  American  law  and 
jurisprudence. 

In  the  execution  of  his  plan,  the  author  has,  in  the  first  place,  defined  and  ex- 
plained the  various  words  and  phrases,  by  giving  their  most  enlarged  meaning, 
and  then  all  the  shades  of  signification  of  which  they  are  susceptible;  secondly, 
he  has  divided  the  subject  in  the  manner  which  to  him  appeared  the  most  natural, 
and  laid  down  such  principles  and  rules  as  belong  to  it ;  in  these  cases  he  has  gen- 
erally been  careful  to  give  an  illustration,  by  citing  a  case  whenever  the  subject 


PREFACE  lx 

seemed  to  require  it,  and  referring  to  others  supporting  the  same  point;  thirdly, 
whenever  the  article  admitted  of  it,  he  has  compared  it  with  the  laws  of  other 
countries  within  his  reach,  and  pointed  out  their  concord  or  disagreement;  and, 
fourthly,  he  has  referred  to  the  authorities,  the  abridgments,  digests,  and  the 
ancient  and  modern  treatises,  where  the  subject  is  to  be  found,  in  order  to  facili- 
tate the  researches  of  the  student.  He  desires  not  to  be  understood  as  professing 
to  cite  cases  always  exactly  in  point ;  on  the  contrary,  in  many  instances  the  au- 
thorities will  probably  be  found  to  be  but  distantly  connected  with  the  subject  un- 
der examination,  but  still  connected  with  it,  and  they  have  been  added  in  order 
to  lead  the  student  to  matter  of  which  he  may  possibly  be  in  pursuit. 

To  those  who  are  aware  of  the  difficulties  of  the  task,  the  author  deems  it  un- 
necessary to  make  any  apology  for  the  imperfections  which  may  be  found  in  the 
work.  His  object  has  been  to  be  useful:  if  that  has  been  accomplished  in  any 
degree,  he  will  be  amply  rewarded  for  his  labor ;  and  he  relies  upon  the  generous 
liberality  of  the  members  of  the  profession  to  overlook  the  errors  which  may  have 
been  committed  in  his  endeavors  to  serve  them.  John  Bouvikr. 

Philadelphia,  September,  1S39. 


REVIEW 

OF   BOUVIER'S   LAW   DICTIONARY   AND    "INSTITUTES 

OF  AMERICAN  LAW" 

BY  S.AUSTIN  ALLIBONE,  LL.D. 

AUTHOR   OF  "THE  DICTIONARY  OF  AUTHORS" 


From  the  North  American  Review  for  Jul]),  1861 

The  author  of  these  volumes  taught  lawyers  by  his  books,  but  he  taught  all 
men  by  his  example,  and  we  should  therefore  greatly  err  if  we  failed  to  hold  up, 
for  the  imitation  of  all,  his  successful  warfare  against  early  obstacles,  his  uncon- 
querable zeal  for  the  acquisition  of  knowledge,  and  his  unsparing  efforts  to  dis- 
tribute the  knowledge  thus  acquired  for  the  benefit  of  his  professional  brethren. 
Torn  in  the  village  of  Codognan,  in  the  department  Du  Gard,  in  the  south  of 
France,  in  the  year  1787,  at  the  age  of  fifteen  he  accompanied  his  father  and 
mother — the  last  a  member  of  the  distinguished  family  of  Benezet — to  Philadel- 
phia, where  he  immediately  applied  himself  to  those  exertions  for  his  own  sup- 
port which  the  rapid  diminution  of  his  father's  large  property  had  rendered 
necessary.  In  1812  he  became  a  citizen  of  the  United  States,  and  about  the  same 
time  removed  to  West  Philadelphia,  where  he  built  a  printing-office,  which  still 
exists  as  an  honorable  monument  of  his  enterprise.  Two  years  later  we  find  him 
settled  at  Brownsville,  in  the  western  part  of  Pennsylvania,  where,  in  1814,  he 
commenced  the  publication  of  a  weekly  newspaper,  entitled  "The  American  Tele- 
graph." In  1818,  on  Mr.  Bouvier's  removal  to  Uniontown,  he  united  with  it 
"The  Genius  of  Liberty,"  and  thenceforth  issued  the  two  journals  in  one  sheet, 
under  the  title  of  "The  Genius  of  Liberty  and  American  Telegraph."  He  re- 
tained his  connection  with  this  periodical  until  July  18,  1820. 

It  was  while  busily  engaged  as  editor  and  publisher  that  Mr.  Bouvier  resolved 
to  commence  the  study  of  the  law.  He  attacked  Coke  and  Blackstone  with  the 
determination  and  energy  which  he  carried  into  every  department  of  action  or 
speculation,  and  in  1818  he  was  admitted  to  practice  in  the  Court  of  Common 
Pleas  of  Fayette  county,  Pennsylvania.  During  the  September  term  of  1822  he 
was  admitted  as  an  attorney  of  the  Supreme  Court  of  Pennsylvania,  and  in  the 
following  year  he  removed  to  Philadelphia,  where  he  resided  until  his  death.  In 
1836  he  was  appointed  by  Governor  Ritner  Recorder  of  the  City  of  Philadelphia, 
and  in  1838  was  commissioned  by  the  same  chief  magistrate  as  an  Associate 
Judge  of  the  Court  of  Criminal  Sessions.  But  the  heavy  draughts  upon  time  and 
strength  to  which  he  was  continually  subjected  had  not  been  permitted  to  divert 
his  mind  from  the  cherished  design  of  bestowing  upon  his  profession  a  manual 
of  which  it  had  long  stood  in  urgent  need.  While  laboring  as  a  student  of  law, 
and  even  after  his  admission  to  the  bar,  he  had  found  his  efforts  for  advance- 
ment constantly  obstructed,  and  often  frustrated,  by  the  want  of  a  conveniently 
arranged  digest  of  that  legal  information  which  every  student  should  have,  and 
which  every  practising  lawyer  must  have,  always  ready  for  immediate  use.  1  he 
English  Law  Dictionaries — based  upon  the  jurisprudence  of  another  country, 
incorporating  peculiarities  of  the  feudal  law,  that  are  to  a  great  extent  obsolete 
even  in  England,  only  partially  brought  up  to  the  revised  code  of  Great  Britain, 
and  totally  omitting  the  distinctive  features  of  our  own  codes — were  manifestly 
insufficient  for  the  wants  of  the  American  lawyer.  A  Law  Dictionary  for  the 
profession  on  this  side  of  the  Atlantic  should  present  a  faithful  incorporation  of 
the  old  with  the  new, — of  the  spirit  and  the  principles  of  the  earlier  codes,  and 

1  Bouv.  (xi) 


Xii  BOUVIER'S  LAW  DICTIONARY  AND  INSTITUTES 

the  "newness  of  the  letter"  of  modern  statutes.  The  Mercantile  Law,  with  the 
large  body  of  exposition  by  which  it  has  been  recently  illustrated ;  the  Law  of 
Real  Property  in  the  new  shape  which,  especially  in  America,  it  has  latterly  as- 
sumed ;  the  technical  expressions  scattered  here  and  there  throughout  the  Con- 
stitution of  the  United  States,  and  the  constitutions  and  laws  of  the  several  States 
of  the  American  Union, — all  these,  and  more  than  these,  must  be  within  the  law- 
yer's easy  reach  if  he  would  be  spared  embarrassment,  mortification,  and  de- 
cadence. 

A  work  which  should  come  up  to  this  standard  would  indeed  be  an  invaluable 
aid  to  the  profession ;  but  what  hope  could  be  reasonably  entertained  that  the 
requisites  essential  to  its  preparation — the  learning,  the  zeal,  the  acumen  to  an- 
alyze, the  judgment  to  synthesize,  the  necessary  leisure,  the,  persevering  industry, 
and  the  bodily  strength  to  carry  to  successful  execution — would  ever  be  combined 
in  one  man?  Mr.  Bouvier  determined  that  it  should  not  be  his  fault  if  such  a 
work  was  not  at  least  honestly  attempted.  Bravely  he  wrought,  month  in  and 
out,  year  in  and  out,  rewarded  for  his  self-denying  toil  by  each  well-executed  ar- 
ticle, and  rejoicing,  at  rare  and  prized  intervals,  over  a  completed  letter  of  the  al- 
phabet. 

In  1839  the  author  had  the  satisfaction  of  presenting  in  two  octavo  volumes 
the  results  of  his  anxious  toils  to  his  brethren  and  the  world  at  large;  and  the. 
approving  verdict  of  the  most  eminent  judges — Judge  Story  and  Chancellor  Kent, 
for  example — assured  him  that  he  had  "not  labored  in  vain,"  nor  "spent  his 
strength  for  naught."  This  was  well;  but  the  author  himself  was  the  most  rigid 
and  unsparing  of  his  critics.  Contrary  to  the  practice  of  many  writers,  consider- 
ing the  success  of  the  first  and  second  editions  as  a  proper  stimulus  to  additional 
accuracy,  fulness,  and  completeness  in  every  part,  in  1848,  when  the  third  edition 
was  called  for,  the  second  having  been  published  in  1843,  he  was  able  to  announce 
that  he  had  not  only  "remodelled  very  many  of  the  articles  contained  in  the  for- 
mer editions,"  but  also  had  "added  upwards  of  twelve  hundred  new  ones."  He 
also  presented  the  reader  with  "a  very  copious  index  to  the  whole,  which,  at  the 
same  time  that  it  will  assist  the  inquirer,  will  exhibit  the  great  number  of  subjects 
treated  of  in  these  volumes." 

He  still  made  collections  on  all  sides  for  the  benefit  of  future  issues,  and  it  was 
found  after  the  death  of  the  author,  in  1851,  that  he  had  accumulated  a  large 
mass  of  valuable  materials.  These,  with  much  new  matter,  were,  by  competent 
editorial  care,  incorporated  into  the  text  of  the  third  edition,  and  the  whole  was 
issued  as  the  fourth  edition  in  1852.  The  work  had  been  subjected  to  a  thorough 
revision, — inaccuracies  were  eliminated,  the  various  changes  in  the  constitutions 
of  several  of  the  United  States  were  noticed  in  their  appropriate  places,  and  un- 
der the  head  of  "Maxims"  alone  thirteen  hundred  new  articles  were  added. 

That  in  the  ensuing  eight  years  six  more  editions  were  called  for  by  the  pro- 
fession, is  a  tribute  of  so  conclusive  a  character  to  the  merits  of  the  work  that 
eulogy  seems  superfluous.  Let  us,  then,  briefly  examine  those  features  to  which 
the  great  professicnal  popularity  of  the  Law  Dictionary  is  to  be  attributed.  Some 
of  these,  specified  as  desiderata,  have  been  already  referred  to  with  sufficient  par- 
ticularity. But  it  has  been  the  aim  of  the  author  to  cover  a  wider  field  than  the 
one  thus  designated.  He  has  included  in  his  plan  technical  expressions  relating 
to  the  legislative,  executive,  and  judicial  departments  of  the  government;  the 
political  and  the  civil  rights  and  duties  of  citizens ;  the  rights  and  duties  of  per- 
sons, especially  such  as  are  peculiar  to  the  institutions  of  the  United  States, — 
for  instance,  the  rights  of  descent  and  administration,  the  mode  of  acquiring  and 
transferring  property,  and  the  criminal  law  and  its  administration. 

He  was  persuaded — and  here  as  elsewhere  he  has  correctly  interpreted  the 
wants  of  the  profession — that  an  occasional  comparison  of  the  civil,  canon,  and 
other  systems  of  foreign  law  with  our  own  would  be  eminently  useful  by  way  of 
illustration,  as  well  as  for  other  purposes  too  obvious  to  require  recital.  We  will 
barely  suggest  the  advantage  to  the  student  of  civil  law  or  canon  law  of  having  at 
hand  a  guide  of  this  character.  And  we  would  express  our  hope  that  the  student 
of  civil  or  of  canon  law  is  not  hereafter  to  be  that  vara  avis  in  the  United  States 
which,  little  to  our  credit,  he  has  long  been.     He  who  would  be  thoroughly  fur- 


BOUVIER'S  LAW  DICTIONARY  AND  INSTITUTES  X\U 

nished  for  his  high  vocation  will  not  be  satisfied  to  slake  his  thirst  for  knowledge 
even  at  the  streams  (to  which,  alas !  few  aspire)  of  Bracton,  Britton,  or  Fleta ;  he 
will  ascend  rather  to  the  fountains  from  which  these  drew  their  fertilizing  sup- 
plies. 

To  suppose  that  he  who  draws  up  many  thousands  of  definitions,  and  cites 
whole  libraries  of  authorities,  shall  never  err  in  the  accuracy  of  statement  or  the 
relevancy  of  quotation,  is  to  suppose  such  a  combination  of  the  best  qualities  of  a 
Littleton,  a  Fearne,  a  Butler,  and  a  Hargrave,  as  the  world  is  not  likely  to  behold 
while  law-books  are  made  and  lawyers  are  needed.  If  Chancellor  Kent,  after 
"running  over  almost  every  article  in"  the  first  edition  (we  quote  his  own  lan- 
guage), was  "deeply  impressed  with  the  evidence  of  the  industry,  skill,  learning, 
and  judgment  with' which  the  work  was  completed,"  and  Judge  Story  expressed  a 
like  favorable  verdict,  the  rest  of  us,  legal  and  lay,  may,  without  any  unbecoming 
humiliation,  accept  their  dicta  as  conclusive.  We  say  legal  and  lay;  for  the  lay 
reader  will  make  a  sad  mistake  if  he  supposes  that  a  Law  Dictionary,  especially 
this  Law  Dictionary,  is  out  of  "his  line  and  measure."  On  the  contrary,  the  Law 
Dictionarv  should  stand  on  the  same  shelf  with  Sismondi's  Italian  Republics,  Rob- 
ertson's Charles  the  Fifth,  Russell's  Modern  Europe,  Guizot's  Lectures,  Hallam's 
Histories,  Prescott's  Ferdinand  and  Isabella,  and  the  records  of  every  country  in 
which  the  influences  of  the  canon  law,  the  civil  law,  and  the  feudal  law,  separately 
or  jointly,  moulded  society,  and  made  men,  manners,  and  customs  what  they  were, 
and,  to  no  small  extent,  what  they  still  are. 

In  common  with  the  profession  on  both  sides  of  the  water,  Judge  Bouvier  had 
doubtless  often  experienced  inconvenience  from  the  absence  of  an  Index  to  Mat- 
thew Bacon's  New  Abridgment  of  the  Law.  Not  only  was  this  defect  an  objec- 
tion to  that  valuable  compendium,  but  since  the  publication  of  the  last  edition  there 
had  been  an  accumulation  of  new  matter  which  it  was  most  desirable  should  be 
at  the  command  of  the  law  student,  the  practising  lawyer,  and  the  bench.  In 
1841  Judge  Bouvier  was  solicited  to  prepare  a  new  edition,  and  undertook  the 
arduous  task.  The  revised  work  was  presented  to  the  public  in  ten  royal  octavo 
volumes,  dating  from  1842  to  1846.  With  the  exception  of  one  volume,  edited 
by  Judge  Randall,  and  a  part  of  another,  edited  by  Mr.  Robert  E.  Peterson.  Judge 
Bouvier's  son-in-law,  the  whole  of  the  labor,  including  the  copious  Index,  fell  up- 
on the  broad  shoulders  of  Judge  Bouvier.  This,  the  second  American,  was 
based  upon  the  seventh  English  edition,  prepared  by  Sir  Henry  Gwillim  and 
Messrs.  C.  E.  Dodd  and  William  Blanshard,  and  published  in  eight  royal  octavos 
in  1832.  In  the  first  three  volumes  Bouvier  confines  his  annotations  to  late  Ameri- 
can decisions ;  but  in  the  remaining  volumes  he  refers  to  recent  English  as  well 
as  to  American  Reports. 

But  this  industrious  scholar  was  to  increase  still  further  the  obligations  under 
which  he  had  already  laid  the  profession  and  the  public.  The  preparation  of_  a 
comprehensive  yet  systematic  digest  of  American  law  had  been  for  years  a  favorite 
object  of  contemplation  to  a  mind  which  had  long  admired  the  analytical  system 
of  Pothier.  Unwearied  by  the  daily  returning  duties  of  his  office  and  the  bench, 
and  by  the  unceasing  vigilance  necessary  to  the  incorporation  into  the  text  of  his 
Law  Dictionary  of  the  results  of  recent  trials  and  annual  legislation,  he  laid  the 
foundations  of  his  "Institutes  of  American  Law,"  and  perseveringly  added  block 
upon  block,  until,  in  the  summer  of  1851,  he  had  the  satisfaction  of  looking  upon 
a  completed  edifice.  Lawyers  who  had  hailed  with  satisfaction  the  success  of  his 
earlier  labors,  and  those  who  had  grown  into  reputation  since  the  results  of  those 
labors  were  first  given  to  the  world,  united  their  verdict  in  favor  of  this  last  work. 

It  is  hardly  necessary  to  remark  that  it  was  only  by  a  carefully  adjusted  appor- 
tionment of  his  hours  that  Judge  Bouvier  was  enabled  to  accomplish  so  large  an 
amount  of  intellectual  labor,  in  addition  to  that  "which  came  upon  him  daily."— 
the  still  beginning,  never  ending,  often  vexatious  duties  connected  with  private 
legal  practice  and  judicial  deliberation.  He  rose  every  morning  at  from  four  to 
five  o'clock,  and  worked  in  his  library  until  seven  or  eight ;  then  left  his  home  for 
his  office  (where,  in  the  intervals  of  business,  he  was  employed  on  his  "Law  Dic- 
tionary" or  "The  Institutes")  or  his  seat  on  the  bench,  and  after  the  labor  of  the 
day  wrought  in  his  library  from  five  o'clock  until  an  hour  before  midnight. 


PARTIAL  LIST  OF  WRITERS 

WHO  ASSISTED  IN  EDITING  THE 
EDITION  OF  1867 


Affidavit;  Codes;  Ex  Post  Facto;  Fal- 
cidian  Laze;  Feudal  Lazv;  Fiction; 
Foreign  Lazv,  &c.  ........ 


Bankrupt  Laws;    Damages;    Indorse-} 
merit;   Receipt,  &c J 

Corporations 

Parties,  &c 


Articles  upon  Maritime  Law  . 


Rescission  of  Contracts;   Specific  Per- 
formance,   &c 


} 


Letters   Testamentary; 
Will,  &c  .     .     .     . 


Probate   of 


"} 


Abbreviations;  Construction;  Costs,  &c. 


Austin  Abbott,  Esq.,  of  the  New 
York  Bar. 

Author  of  a  "Collection  of  Forms  arid 
Headings  in  Actions;"  "Reports  of  Cas- 
es in  Admiralty;"'  "Practice  Reports;" 
"Digest  of  Reports,"  &c 

'Benjamin  Vaughan  Abbott,  Esq.,  of 
the  New  York  Bar. 

Author  of  a  "Collection  of  Forms  and 
Pleadings  in  Actions;"  "Reports  of  Cas- 
es in  Admiralty;"  "Practice  Reports;" 
"Digest  of  Reports,"  &c 

Hon.  Samuel  Ames,  LL.D.,  Chief  Jus- 
tice of  Rhode  Island. 

Author  of  "Treatise  on  the  Law  of 
Private  Corporations,"  &c.  Editor  of 
Ames's  "Reports." 

Hon.  Oliver  Lorenzo  Barbour, 
Vice-Chancellor  of   New  York. 

Author  of  a  "Treatise  on  Chancery 
Practice;"  "Set-Off;"  "Criminal  Law;" 
&c.    Editor  of  Barbour's  "Reports." 

E.  C.  Benedict,  Esq.,  New  York  City. 

Hon.  William  H.  Battle,  LL.D.,  of 
the  Supreme  Court  of  North  Caro- 
lina; Professor  of  Law  in  the  Uni- 
versity of  North  Carolina. 

"Hon.  Alex.  W.  Bradford,  LL.D.,  Ex- 
Surrogate  of  New  York. 

Editor  of  Bradford's  "Surrogate  Re- 
ports," &c. 

'F.  C.  Brightly,  Esq.,  of  the  Philadel- 
phia Bar. 

Author  of  an  "Analytical  Digest  of  the 
Laws  of  the  United  States;"  "Treatise 
on  the  Law  of  Costs ;"  "Equity  Juris- 
diction of  the  Courts  of  Pennsylvania," 
&c. 


[Causten  Browne,  Esq.,  of  the  Boston 

Statute  of  Frauds,  &c.  .     .     .     .     .      \      Bar-  , 

'  Author 


Ejectment,  &c. 


of   a   "Treatise   on    the   Con- 
L      struction  of  the  Statute  of  Frauds." 

Hon.  T.  W.  ClERKE,  LL.D.,  of  the  Su- 
preme Court  of  New  York. 

Author  of  a  "Digest  of  Cases  Deter- 
mined in  Supreme  Court  of  New  York." 
Editor  of  "Adams  on  Ejectment." 


lBouv. 


(xiv) 


PARTIAL  LIST  OF  WRITERS 


XV 


Slave;  Slavery;  Slave-Trade,  &c. 


Abortion;  Birth;  Gestation;  InfantiA 
cide;  Medical  Jurisprudence;  Preg-  y 
nancy,  &c .J 


Abatement;  Attachment,  &c 

Ancient  Rights;  Backwater;  Bridge* 
Canal;  Child;  Chose  in  Action; 
Creek;  Dam;  Dedication;  Father; 
Ferry;  Fishery;  Highway;  Inunda- 
tion; Master;  River;  Roads;  Street; 
Thoroughfare;  Tide;  Tide-water; 
Turnpike;  Water-way;  Wharf; 
Wharfinger,  &c 


Crime;    Deed;    Deposition; 
Distribution;    Husband; 
Wife;    Will,  &c.     .    .    s 


Descent  f\ 
Marriage;  \ 


Reports;    Reporters,  &c 

Trusts;  Trustees;  Presumptive  Trusts, \ 
&c J 

Accessary;  Bargain  and  Sale;  Bidder; 
Conspiracy;  Court-Martial;  Escape; 
Fee;  Foreign  Lazvs;  Gift;  Habitual 
Drunkard;  Hue  and  Cry;  Labor; 
Letter  of  Attorney;  Letters  Rogato- 
ry; Misadventure;  Misprision;  Mis- 
recital;  Mistrial;  Monument;  Mute; 
Negative  Pregnant;  Nudum  Pactum; 
Offer;  Pamphlets;  Party-Wall;  Per 
Capita;  Per  Stirpes;  Perpetuating 
Testimony;  Poison;  Provisions; 
Public    Stores;     Quack;     Receiver. 


Bailee;   Bailments,  &c. 


on.  T.  R.  R.  Cobb,  of  Georgia. 

Author  of  the  'Law  of  Negro  S 
I      fte   in    the   United   States."     Editor  of 
y      "Cobb's  Reports,"  Digests,  &c. 

'Amos  Dean,  LL.D.,  President  of  the 
Law  Department  of  the  Albany  Uni- 
versity. 

Author  of  Dean's  "Medical   Jurispru- 
dence," &c 

[Hon.  Charles  D.  Drake,  of  the  St 
\      Louis  Bar,  United  States  Senator. 
Author  of  "Drake  on  Attachments." 


("Thomas  Durfee,  Esq.,  of  Rhode  Is- 
I      land. 

Author  of  a  "Treatise  on  the  Law  of 
[_     Highways,"  &a 


Experts;  Malpractice  of  Medical  Men;' 
Medical  Evidence;  Physicians;  Sur- 
geons,  &c m 


Computation;  Fraction  of  a  Day ;  GlosA 
sators;  Jus;   Negligence;   Time,  ecc.J 


'Hon.  Henry  Dutton,  LL.D.,  of  the 
Supreme  Court  of  Com  ecticut,  Kent 
Professor  of  Law  in  Yale  College. 

Author   of  a   "Digest   of   Connecticut 
Reports,"  &c. 

fHon.  Theodore  W.  Dwight,  LL.D., 
4  Professor  of  Law  in  Columbia  Col- 
[_     lege,  New  York. 

JDorman  B.  Eaton,  Esq.,  of  the  New 
\     York  Bar. 


'Charles  Edwards,  Esq.,  of  the  New 
York  Bar. 

Author  of  a  "Treatise  on  Receivers  in 
Equity,"  &c 


'Isaac  Edwards,  Esq.,  of  the  Albany 
Bar. 

Author  of  a  "Treatise  on  the  Law  of 
L      Bailments,  Bills,"   &c. 

J.    J.    Eewell,    M.  D.,    of    Cleveland, 
Ohio. 

Author  of  "Medico-Legal   Treat  s 
Malpractice,"  and  "Medical   Evidence.'' 


A.  I.   Fish,  Esq.,  of  the  Philadelphia 
Bar. 
Editor  of  the  "American  Law  Regis- 

Uliams  on  Executors;"   "I1 
Exchequer  Reports,"  kc 


-\  Editor 

ten"  -w 

t     of  Exehec 


XVI 


PARTIAL  LIST  OF  WRITERS 


Bar;   Plea;   Pleading,  &c. 


«      •      • 


Chancellor;  Chancery,  &c. 


Bottomry;  Captain;  Collision;  Freight;" 
Master;  Mate;  Respondentia;  and 
many  other  articles  relating  to  Ad- 
miralty and  Maritime  Law  .... 


Articles  relating  to  Criminal  Law 


Witness,  &c. 
Torts,  &c.  . 


Conflict  of  Laws,  &c. 


Extradition;     Fugitive    from    Justice ;\ 
Fugitive  Slave;    Habeas   Corpus     J 


Bondage;   Freedom,  &c. 


[Hon.  George  Gould,  LL.D.,  of  the 
-j      Supreme  Court  of  New  York. 

Editor  of  "Gould  on  Pleading,"  &c. 

/Hon.  Henry  W.  Green,  LL.D.,  Chan- 
\     cellor  of  New  Jersey. 


fHon.  Nathan  K.  Hall,  LL.D.,  Judge 
of  the  United  States  District  Court 
for  the  Northern  District  of  New 
York. 

F.  F.  Heard,  Esq.,  of  the  Middlesex 
Bar. 

Author  of  a  "Treatise  on  Slander  and 
Libel;"  Editor  of  "Leading  Criminal 
Cases;"  "Precedents  of  Indictments," 
&c. 

/Hon.  George  S.  Hillard,  LL.D.,  of 
\     the  Boston  Bar. 

("Francis  Hillard,  Esq.,  of  New  York. 
•{  Author  of  "Treatises  on  Real  Proper- 

{     ty;"    "Mortgages;"    "Sales;"    "Torts,"  &c. 

Hon.  Murray  Hoffman,  LL.D.,  Judge 
of  the  Superior  Court  of  New  York 
City  and  County. 

Author  of  a  "Treatise  on  the  Practice 
of  the  Court  of  Chancery,"  &c. 

'Hon.  R.  C.  Hurd,  of  Ohio. 

Author  of  a  "Treatise  on  the  Right  of 
Personal  Liberty,"  and  on  the  "Writ  of 
Habeas  Corpus,"  &c. 

'J.  C.  Hurd,  Esq.,  of  the  New  York 
Bar. 

Author  of  the  "Law  of  Freedom  and 
Bondage  in  the  United   States." 


Actio;  Actio  Personalis;  Advocati? 
Advocatus;  Curia;  Execution;  For- 
um;   Obligatio,  &c 


{ 


W.  A.  Ingham,  Esq.,  of  the  Philadel- 
phia Bar. 


Alimony;  Condonation;  Divorce;  NulA    jQ    Q    LangdELL,   Esq.,   of   the   New 
hty  of  Marriage;   Promise  of  Mar-V  1      York  Bar 
riage;  Separation  a  Mensa  et  Thoro) 


Absolutism;  Aristocracy ;  Civil  Liber- 
ty; Constitution;  Construction;  De- 
mocracy; Guerrilla  Party;  Herme- 
neutics;  Interpretation;  Liberty; 
Right;  Self -Government;  Sovereign- 
ty;  and  many  other  articles    .     .     . 


Executors,  &c. 


{Francis  LiEbEr,  LL.D.,  Professor  in 
Columbia  College,  New  York. 
Author  of  "Civil  Liberty,"  &c. 

'Hon.  J.  Tayloe  Lomax,  late  Professor 
in  the  Law  School  of  the  University 
of  Virginia. 

Author  of  a  "Treatise  on  the  Law  of 
Executors,"  &c. 


PARTIAL  LIST  OF  WRITERS 


XV11 


Prise;  Salvage;   Wreck;  and  other  ar-\ 
tides  relating   to  Admiralty     .     .      / 


Limitations 


'Hon.  William  Marvin.  Judge  of  the 
I  Fnited  States  District  Court  for  the 
Southern  District  of  Florida. 

Author  of  a  "Treatise  on  the  Law  of 
Wrecks  and  Salvage." 

[].  Wilder  May,  Esq.,  of  the  Boston 

Bar. 
[  Editor  of  Angell  on  "Limitations." 


Ancient  Lights;  Charities;  Easements;}    /Hon.  William  Curtis  Noyes,  LL.D., 
Eminent  Domain;  Torture,  &c.     .     J    {     of  the  New  York  Bar. 


Administrator,  &c.;  Agreement;  ApA 
propriation  of  Payments;  Condition;) 
Consideration;     Contract;    Executor] 


'Hon.  Theophilus  Parsons,  LL.D., 
Dane  Professor  of  Law  in  Harvard 
University. 

Author  of  Treatises  on  the  "Law  of 
Contracts;"  "Maritime  Law:'"  "Mercan- 
tile  Law;"     "Promissory   Notes,''    vv.-. 


Agency;  Bailment;  Equity;  Evidence}     fRon- J0^  Parker,  LL.D.,  Royal  Pro- 
&c  >■  1      fessor  of  Law  in  Harvard  Univer- 
J     [     sity. 

Hon.  J.  C.  Perkins,  LL.D.,  Chief  Jus- 
tice of  the  Court  of  Common  Pleas 
of  Massachusetts. 

Editor   of    Collyer    on   "Partnership;" 
I     Jarman  on  "Wills,"  &c. 


Firm;  Partners;  Partnership;  Profits;' 
&c 


Guaranty;     Suretyship C.  A.  Philips,  Esq.,  of  the  Boston  Bar. 

Abandonment;  Assignment;  Assignee;)     fHon.      Willard      Phillips,     LL.D., 
Assignor;   Assured;    Barratry;    andl    J      President  of  the  New   England  In- 


the  principal  articles  relating  to  the 
law  of  Insurance 


Idiocy;  Imbecility;  Insanity;  and  the" 
articles  relating  to  Insanity  through- 
out the  work 


surance  Company 
Author  of  Phillips  on  "Insurance,"  &c. 

Isaac  Ray,  M.D.,  LL.D.,  Superintend- 
ent of  the  Butler  Insane  Asylum, 
Providence,  R.  I. 

Author. of  the  "Medical  Jurisprudence 
of  Insanity,"  &c. 


Certiorari;  Codicil;  Common  Carriers;" 
Criminal  Lazv;  Devise;  Legacy;  Leg 
atee;   Mandamus;  Railways;  Revo 
cation;  Testament;  Will,  &c.  .     . 


'Hon.    Isaac   Redfield,  LL.D.,   Chief 
Justice  of  Vermont. 

Author  of  "Treatises  on  the  Law  of 
Railways,  Executors,  Administrators, 
Wills,"  &a 


Civil  Law;  Dominion;  Fidci  Commis-') 
sa;   Gens;  Interdiction;  Jus  ad  rem  ;\ 
Jus  in  re;  Louisiana;  Pater-familias; 
Substitutions,   &c 


'Christian  Roselius.  Esq.,  of  the 
New  Orleans  Bar,  Professor  of  Law 
in  the  University  of  Louisiana. 


fGusTAvus  Schmidt,  Esq.,  of  the  New 
Nezv  Definitions  of  Spanish  Law-Terms-\    J      Orleans  Bar. 

throughout  the  book \  Author  of  the  "Civil  Law  of  Spain  and 

[.      Mexico." 

Banks;   Bank-Notes;    Brokers;    Cash-}    /Robert    Sewe i.l,    Esq.,   of    the    New 


ier;  Finances;   financier;  Interest 
1  Bouv.— b 


i-\   /ROBER 

J    1     Yort 


York  Bar. 


S.V1U 


PARTIAL  LIST  OF  WRITERS 


Bills;  Foreign  Laws;   Gift,  &c. 


Assay;  Assay  Office;  Bullion;  Cent;' 
Dime;  Director  of  the  Mint ;  Dollar; 
Ducat;  Florin;  Foreign  Coins; 
Franc;  Guilder;  Half-Cent;  Half- 
Dime;    Thaler 


'Hon.  George  Sharswood,  LL.D.,  As- 
sociate Justice  of  the  Supreme  Court 
of  Pennsylvania ;  Professor  of  Law 
in  the  University  of  Pennsylvania. 

Author  of  "Sharswood's  Ethics;"  Edi- 
tor of  "Blackstone's  Commentaries," 
"Russell  on  Crimes,"  "Roscoe  on  Crimi- 
nal Evidence,"  &c. 

'J.  Ross  Snowden,  Esq.,  late  Director 
of  the  United  States  Mint  at  Phila- 
delphia. 

Author  of  "Coins  of  the  World,"  &c. 


Insolvency;  Insolvent  Estates,  &c. 


Foetus;  Quickening ;  Viability,  &c. 


Custom;  Entry;  Fixtures;  Joint-TenA 
ant;  Jury;  Landlord;  Magna  Char-[ 
ta;  Rent;  Sheriff;  Tenant;  Tenure  A 
&c J 

Quo   Warranto;    Scire  Facias    .    .     . 


Injunction,  &c. 


R.  D.  Smith,  Esq.,  of  the  Boston  Bar. 

f  James  Stewart,  M.D.,  of  New  York 
J      City. 

Author  of  a  Treatise  on  the  "Diseases 
I      of  Children." 

{John  N.  Taylor,  Esq.,  of  the  New 
York  Bar. 
Author  of  a  Treatise  on  the  "Law  of 
Landlord  and  Tenant,"  &c. 

/Samuel,  Tyler,  Esq.,  of  the  Maryland 
t     Bar. 

/Hon.  Reuben  H.  Walworth,  LL.D., 
I     Chancellor  of  New  York. 


Covenant;  Real;  Real  Property,  &c.     . 


Admiralty;  Master;  Privilege;  United'] 
States;  and  other  articles  relating  toV 
Admiralty J 


Agency;  Agent;  Authority;  Dele  go-' 
Hon;  Misdirection;  Newly  Discover- 
ed Evidence;  Nezv  Trial;  Price; 
Principal,    &c 


'Hon.  Emory  Washburn,  LL.D.,  Pro- 
fessor of  Law  in  Harvard  Univer- 
sity. 

Author  of  a  Treatise  on  the  "Law  of 
Real   Property,"   &c. 

'Hon.  Ashur  Ware,  LL.D.,  Judge  of 
the  United  States  District  Court  for 
Maine. 
Editor  of  Ware's  "Admiralty  Reports." 

Thomas  W.  Waterman,  Esq.,  of  the 
New  York  Bar. 

Author  of  Treatises  on  the  "Law  of 
New  Trials;"  Editor  of  Eden  on  "In- 
junctions," "American  Chancery  Digest," 
&c. 


Guarantor;  Sitrety,  &c. 


International  Law,  &c. 


/Joseph  Willard,  Esq.,  of  the  Boston 
t     Bar. 

f  Theodore  D.  Woolsey,  LL.D.,  Pres- 
I      ident  of  Yale  College. 

Author  of  a  Treatise  on  "Internation- 
L     al  Law,"  &c 


[DEDICATION  OF  THE  FIRST  EDITION] 


TO  THE  HONORABLE 


JOSEPH    STORY,    LL.D. 

ONE  OF  THE  JUDGES  OF   THE    SUPREME 
COURT  OF  THE   UNITED   STATES 


THIS  WORK  IS,  WITH  HIS  PERMISSION, 
MOST  RESPECTFULLY  DEDICATED,  AS 
A  TOKEN  OF  THE  GREAT  REGARD 
ENTERTAINED  FOR  HIS  TALENTS, 
LEARNING,  AND  CHARACTER, 
BY  THE  AUTHOR 


(iix)t 


A 


LAW  DICTIONARY 


CONCISE  ENCYCLOPEDIA 


A  TABLE  OF  ABBREVIATIONS  WILL  BE  FOUND  UNDER  THE  TITLE  ABBREVIATION 


A 


A.    The  first  letter  of  the  alphabet.  I.     In  Civil  Law  and  by  Bracton,  a  synonym 

It  is  used  to  distinguish  the  first  page  of'  for  e  transvcrso,  across;  Bract  fol.  G7u. 


a  folio,  the  second  being  marked  "fr,"  thus: 
Coke,  Litt.  114a,  l\4b.  It  is  also  used  as 
an  abbreviation  for  many  words  of  which 
it  is  the  initial  letter.     See  Abbreviation. 

In  Latin  phrases  it  is  a  preposition,  de- 
noting from,  by,  in,  on,  of,  at,  and  is  of 
common  use  as  a  part  of  a  title. 

In  French  phrases  it  is  also  a  preposition, 
denoting  of,  at,  to,  for,  in,  with. 

The  article  "a"  is  not  necessarily  a  singu- 
lar term,  it  is  often  used  in  the  sense  of 
"any,"  and  is  then  applied  to  more  than 
one  individual  object ;  National  Union  Bank 
v.  Copeland.  141  Mass.  20G,  4  N.  E.  794; 
Snowden  v.  Guion,  101  N.  Y.  458,  5  N.  E. 
322 ;  Thompson  v.  Stewart,  GO  la.  225,  14  N. 
W.  247;  sometimes  as  the;  23  Ch.  Div.  595. 

Among  the  Romans  this  letter  was  used  in  crim- 
inal trials.  The  judges  were  furnished  with  small 
tables  covered  with  wax,  and  each  one  inscribed  on 
It  the  initial  letter  of  his  vote:  A  (absoJvo)  when 
he  voted  to  acquit  the  accused;  C  (condemno) 
when  he  was  for  condemnation;  and  N  L  (non 
liquet),  when  the  matter  did  not  appear  clearly,  and 
he  desired  a  new  argument. 

The  letter  A  (1.  e.  antiquo,  "for  the  old  law") 
scribed  upon  Roman  ballots  under  the  Lex 
aria,  to  Indicate  a  negative  vote;  Tayl.  Civ. 
Law,  191,  192. 

An  abbreviation  of  adversus  used  for  ver- 
ms, indicating  the  parties  to  an  action. 

An  adulteress  among  the  Puritans  was 
condemned  to  wear  the  initial  letter  "A" 
in  red  cloth  on  her  dress. 

ACONSILIIS.   A  counsellor.    Spelin.  Gloss. 

A  FORTIORI  (Lat.).  With  stronger  rea- 
8on ;    much  more. 

A  LATERE  (Lat.  latus,  side).  Collateral. 
Used  in  this  sense  in  speaking  of  the  suc- 
cession to  property.     Bract.  206,  G2o. 

From,  on,  or  at  the  side ;  collaterally. 
llwrcdcs  a  latere  venicntes,  heirs  succeed- 
ing collaterally.  A  latere  ascendit  (jus). 
The  right  ascends  collaterally. 

Bouv.— 1  (1) 


Applied  also  to  a  process  or  proceeding ; 
Keihv.   159. 

Out  of  the  regular  or  lawful  course;  in- 
cidentally or  casually.  Applied  to  the  acta 
of  strangers,  or  persons  having  no  legal  in- 
terest; Bract,  fol.  42/;;  Fleta,  lib.  3,  c.  15, 
§  13.  Confirmatio  a  latere  facta,  a  continua- 
tion made  by  one  having  no  legal  inter, 
non  domino);    Bract,  fol.  58a. 

At  the  side  of  a  person ;    referring  to  or 
denoting    intimacy    of    connexion.      Jr. 
of  the  Curia  Regis  are  described  as  a  1 
regis   residentes,   sitting   at   the   side  of  the 
King;  Bract,  fol.  lOSa;  2  Reeves  Hist  Eng. 
L,  250. 

From  the  side  of ;  denoting  closeness  of 
intimacy  or  connexion ;  as  a  court  held  be- 
fore auditors  specialiter  a  latere  regis  des- 
tinatix;    Fleta.  lib.  2,  c.  2,  §  4. 

Apostolic ;  having  full  powers  to  repre- 
sent the  Pope  as  if  he  were  present.  Du 
Cange,  Legati  a  latere;   4  I'.la.  Com.  30G. 

A    ME    (Lat   ego,    I).     A    term    in    feudal 
grants  denoting  direct  tenure  of  the  su] 
lord.     2  Bell,  II.  L.  Sc.   133. 

Unjustly  detaining  from  me.  He  is  said 
to  withhold  a  me  (from  me)  who  has  ob- 
tained possession  of  my  property  unjustly. 
Calvinus,    Lex. 

To  pay  a  me,  is  to  pay  from  my  money. 

A    MENSA    ET    THORO    (Lat.    from    table 
and    bed,     but    more    commonly    : 
from   bed   and   board).      A    kind   of   dl 
which  Is  rather  a  separation  of  the  parties 
by    law,   than  a   dissolution  of  the  mar 
See  Drvo  ■ 


A 

Com. 


NATIVITATE. 


From 
2G66. 


birth.      3 


A   POSTERIORI    (Lat).     From  the  effeci 
to  the  cause;    from  what  con. 


A  PRENDRE 


AB  INITIO 


A  PRENDRE  (Fr.  to  take,  to  seize). 
Rightfully  taken  from  the  soil.  5  Ad.  &  E. 
764;  1  N.  &  P.  172;  Waters  v.  Lilley,  4  Pick. 
(Mass.)    145,  16  Am.  Dec.  333. 

Used  in  the  phrase  profit  a  prendre  (q.  v.)  which 
differs  from  a  right  of  way  or  other  easement  which 
confers  no  interest  in  the  land  itself.  5  B  &  C.  221 ; 
2  Washb.  R.  P.  25. 

A  PRIORI  (Lat).  From  the  cause  to  the 
effect ;    from  what  goes  before. 

A  QUO  (Lat.).  From  which.  A  court  a 
quo  is  a  court  from  which  a  cause  has  been 
removed.  The  judge  a  quo  is  the  judge  in 
such  court.  Clegg  v.  Alexander,  6  La.  339. 
Its  correlative  is  ad  quern. 

A  REND  RE  (Fr.  to  render,  to  yield). 
Which  are  to  be  paid  or  yielded.  Profits  & 
rendre  comprehend  rents  and  services;  Ham- 
mond, Nisi  P.  192. 

A  RETRO  (Lat).  In  arrear.  Fleta,  lib. 
2,  c.  55,  §  2 ;    id.  c  62,  §  14. 

A  RUBRO  AD  NIGRUM  (Lat.  from  red  to 
black).  From  the  (red)  title  or  rubric  to 
the  (black)  body  of  the  statute.  It  was  an- 
ciently the  custom  to  print  statutes  in  this 
manner;  Erskine,  Inst.  1,  1,  49. 

A.  JJ.  C.  Lat.  ab  urbe  condita.  From 
the  foundation  of  the  city,  Rome.  The  era 
from  which  Romans  computed  time,  being 
assumed  to  be  753  years  before  the  Christian 
Era. 

A  VINCULO  MATRIMONII  (Lat.  from  the 
bond  of  matrimony).  A  kind  of  divorce 
which  is  a  dissolution  of  the  marriage  con- 
tract or  relation.     See  Divorce. 

AB  ACTIS  (Lat  actus,  an  act).  A  no- 
tary ;  one  who  takes  down  words  as  they  are 
spoken.  Du  Cange,  Acta;  Spelm.  Gloss. 
Cancellar-ius. 

A  reporter  who  took  down  the  decisions 
or  acta  of  the  court  as  they  were  given. 

AB  ANTE  (Lat.  ante,  before).  In  ad- 
vance. 

A  legislature  cannot  agree  ab  ante  to  any 
modification  or  amendment  to  a  law  which 
a  third  person  may  make ;  Allen  v.  McKean, 
1  Sumn.  308,  Fed.  Cas.  No.  229. 

AB  ANTECEDENTE  (Lat  antecedens). 
Beforehand.     5  M.  &  S.  110. 

AB  EXTRA  (Lat  extra,  beyond,  without). 
From  without.  Lunt  v.  Holland,  14  Mass. 
151. 

AB  INCONVENIENT!  (Lat  inconveniens). 
From  hardship;  from  what  is  inconvenient. 
An  argument  ab  inconvenienti  is  an  argu- 
ment drawn  from  the  hardship  of  the  case. 

AB  INITIO  (Lat.  initium,  beginning). 
From  the  beginning;  entirely;  as  to  all  the 
acts  done ;    in  the  inception. 

An  estate  may  be  said  to  be  good,  an  agreement 
to  be  void,  an  act  to  be  unlawful,  a  trespass  to 
have  existed,  ab  initio;  Plowd.  6a;  11  East  395; 
Backrider  v.  M'Donald,  10  Johns.  (N.  Y.)  253 ;    Hop- 


kins v.  Hopkins,  id.  369  ;  1  Bla.  Com.  440.  See  Ad, 
Eq.  186.  Webb's  Poll.  Torts  Wald's  ed.  477.  See 
Trespass  ;    Trespasser. 

Before.  Contrasted  in  this  sense  with  ex 
post  facto,  2  Shars.  Bla.  Com.  308;  or  with 
postea,  Calvinus,  Lex.,  initium. 

AB  INTESTAT.  Intestate.  2  Low.  Can. 
219.     Merlin,  Repert. 

AB  INTESTATO  (Lat.  tcstatus,  having 
made  a  will).  From  an  intestate.  Used 
both  in  the  common  and  civil  law  to  denote 
an  inheritance  derived  from  an  ancestor  who 
died  without  making  a  will ;  2  Shars.  Bla. 
Com.  490 ;  Story,  Confl.  L.  4S0. 

AB  INVITO  (Lat.  invitum).  Unwillingly. 
See  Invitum. 

AB  IRATO  (Lat.  iratus,  an  angry  man). 
By  one  who  is  angry.  A  devise  or  gift  made 
by  a  man  adversely  to  the  interest  of  his 
heirs,  on  account  of  anger  or  hatred  against 
them,  is  said  to  be  made  ab  irato.  A  suit  to 
set  aside  such  a  will  is  called  an  action  ab 
irato;  Merlin,  Repert.  Ab  irato. 

AB    URBE    CONDITA.     See  A.   U.  C. 

ABACTOR  (Lat  ab  and  agcre,  to  lead 
away).  One  who  stole  cattle  in  numbers. 
Jacob,  Law  Diet.  One  who  stole  one  horse, 
two  mares,  two  oxen,  two  she-goats,  or  five 
rams.  Abigeus  was  the  term  more  common- 
ly used  to  denote  such  an  offender. 

ABADENGO.  Spanish  Law.  Lands,  town, 
and  villages  belonging  to  an  abbot  and  un- 
der his  jurisdiction.  All  lands  belonging  to 
ecclesiastical  corporations,  and  as  such  ex- 
empt from  taxation ;  Escriehe,  Dice.  Raz. 

Lands  of  this  kind  were  usually  held  in  mortmain, 
and  hence  a  law  was  enacted  declaring  that  no  land 
liable  to  taxation  could  be  given  to  ecclesiastical 
institutions  ("ningun  Realengo  non  pase  a  aba- 
dengo"),  which  is  repeatedly  insisted  on. 

ABALIENATI0  (Lat.  alienatio).  The 
most  complete  method  used  among  the  Ro- 
mans of  transferring  lands.  It  could  take 
place  only  between  Roman  citizens.  Cal- 
vinus,  Lex.,   Abalienatio;    Burr.    Law.   Die. 

ABAMITA  (Lat).  The  sister  of  a  great- 
great-grandfather.     Calvinus,  Lex. 

ABANDON.  To  relinquish;  forsake;  give 
up.  The  word  includes  the  intention.  And 
the  external  act  by  which  it  is  carried  into 
effect.     See  Abandonment. 

An  abandonee  is  the  person  in  whose  favor 
the  property  or  right  is  abandoned.  5  M. 
&  S.  79. 

ABANDONED  AND  CAPTURED  PROP- 
ERTY ACT.  The  act  of  Congress  of  March 
12,  1863,  relating  to  certain  property  in  the 
Confederate  States.  It  expressly  excludes 
from  its  operation  property  which  had  been 
used  to  carry  on  war  against  the  United 
States.  August  20,  1866,  is,  as  to  the  opera- 
tion of  the  act,  the  date  of  the  end  of  the 
war. 


ABANDONED 


ABANDONMENT 


Congress  constituted  the  government  trus- 
tee for  so  much  of  such  property  as  belonged 
to  the  faithful  Southern  people;  it  v 
I  i  to  lie  sold  and  the  proceeds  paid  into 
the  treasury,  claimants  having  two  years  to 
bring  suit  In  the  Court  of  Claims;  TJ.  S.  v. 
.  0  Wall.  (U.  S.)  50,  19  L.  Ed.  615. 
It  was  the  property  which  had  been  seized 
or  taken  from  the  enemy's  possession  by  the 

ed  states  forces;  Bigelow  v.  For 
Wall.  (U.  S.)   351,  19  L.  Ed.  096. 

ABANDONMENT.  Relinquishment;  re- 
nunciation:   current 

Relinq  ilshment  of  a  right  or  of  property 
with  the  Intention  of  not  reclaiming  it  or 
resuming  its  ownership  or  enjoyment.  The 
relinquishment  or  surrender  of  rights  or 
property  by  one  person  to  another.  This 
last  definition  was  adopted  in  Hickman  v. 
Link,  116  Mo.  123,  22  S.  \V.  472,  and  there- 
fore it  is  deemed  proper  to  leave  it  undis- 
turbed, although  it  is  not  technically  accu- 
rate as  to  all  the  sub-titles  of  Abandonment 
This  definition  first  appeared  in  the  edition 
of  1S67,  in  which  the  author  of  the  title  was 
Mr.  Phillips,  author  of  "Insurance,"  etc. 
Abandonment  of  rights  or  property  generally 
cannot  legally  be  made  to  a  specified  per- 
son. As  used  in  Insurance  Law,  however, 
it  does  involve  the  relinquishment  of  the 
property  insured  to  a  specified  person — the 
insurer.  As  Mr.  Phillips  was  not  only  an 
able  writer  on  Insurance  Law  but  also  pres- 
ident of  an  insurance  company,  he  doubtless 
had  the  particular  form  of  abandonment 
known  in  that  branch  of  the  law,  most  prom- 
inent in  his  mind,  and  it  is  not  improbable 
that  the  definition  was  not  intended  as  a 
general  one,  but  only  of  those  forms  of  aban- 
donment to  which  it  applied.  This  seems 
manifest  from  the  fact  that  the  term  is  cor- 
rectly defined  in  the  sub-titles  with  reference 
to  their  respective  subject  matters. 

It  is  a  matter  of  intention  and  consists  in 
giving  up  a  thing  without  reference  to  a 
particular  person  or  purpose ;  there  can  be 
none  to  a  definite  person ;  Norman  v.  Corb- 
ley,  32  Mont.  195,  79  Fac.  1059 ;  or  for  a  con- 
sideration ;  Watts  v.  Spencer,  51  Or.  2 
Pac.  39.  As  applied  to  property  rights  it  con- 
sists of  nonuser  and  intention;  Alamosa 
Creek  Canal  Co.  v.  Nelson,  42  Colo.  140,  93 
Pac.  1112.  A  transaction  which  fails  as  a 
sale  cannot  be  converted  Into  an  abandon- 
ment; Watts  v.  Spencer,  51  Or.  202,  94  Pac, 
39.  Abandonment  implies  a  relinquishment 
to  the  public  generally,  or  to  the  next  comer 
— a  surrender  to  a  particular  person  not  be- 
ing an  abandonment;  Stephens  v.  Mansfield, 
11  Cal.  363.  Of  two  persons  both  Intel 
in  a  water  right,  neither  party  can  abandon 
to  the  other;  Norman  v.  Corbley,  32  Mont. 
195,  79  Pac.  1059. 

In  Civil   Law.    The  act  by   which  a   debt- 
or surrenders  his  property  for  the  benefit  of 


his   creditors;    Merlin,    Repert      See 
donhent  for  Torts. 

In     Maritime     Law.     The     act     by 
the  owner  of  a  ship  surrenders  the  ship  and 

i    to  a  creditor   \v! 
by   contracts   made   by   I 
The  t  such  abandonment  is  to  re- 

the  owner  from  any  further 

bility.     The  privilege  in  case  of  contracts  is 
limited  to  those  of  a  maritime  haturi 
thier,  Chart.  Part.  sec.  2,  art. 

amerce,  lib.  2,  tit.  2,  art  21 
provisions  exist  in  England  and  the   I 

i    to    some   extent;    1    I'ar.    Mar.    Law, 
395;  rope  v.  Nlckerson,  3  Bto. 
No.  11,274;    American  Transp.   Co.  v.    > 
5  Mich.  368.     Under  the  Act  of  ('■ 
1851,  March  3   (Rev.  Stat  V.  S.  | 
liability    of    the    shipowners   for   a    col 
may   be  discharged  by  surrendering  ai 
signing  the  vessel  and  freight  to  a   trustee 
for  the  benefit  of  the  parties  injured,  though 
these  have  been  diminished  in  value  by   the 
collision;  when  they  are  totally  di 
would  seem  that  the  owners  are  dischi 
Norwich  Co.  v.  Wright,  13  Wall.  (U.  S. 
20    L.    Ed.    585;    Wright    v.    Transp.    Co.,    8 
Blatchf.  14,  Fed.  Cas.  No.  18,OS7:  overruling 
Walker   v.    Ins.   Co.,    14   Gray    (M 
Barnes  v.  Steamship  Co..  6  Phila.  47: 
Cas.  No.  1,021.     This  is  not  the  case  under 
the    English    statutes.      2    My.    &    Cr.    489; 
15  M.  &  W.  391;    2  B.  &  Ad 

Insurers  notified  that  vessel  is  abandoned 
to  them,  after  which  owner  and  master  take 
no  steps  to  save  vessel,  docs  not  relieve  the 
insurers  of  liability  on  pqliey  of  Insurance; 
The  Natchez,  42  Fed.  169.  A  schooner  was 
stranded  and  crew  taken  off  by  life-saving 
crew,  the  master  expecting  to  return  on 
board,  and  with  no  intention  of  abandoning 
her;  a  tug  took  schooner  in  tow  to  New 
York,  and  it  was  held  that  salvage  service 
should  be  allowed;  The  S.  A.  Rudolph,  39 
Fed.  331.  A  vessel  is  not  abandoned  unless 
its  possession  is  voluntarily  forsaken  by  its 
owner  or  master;  The  Mary,  2  Wheat  (U. 
S.)  123,  4  L.  Ed.  200. 

By    Husband  or    Wife.     The  act  of  a  hus- 
band or  wife  who  leaves  his  or  her  © 
willfully,  and  with  an  intention  of  causing 
perpetual  separation.     See  Deser; 

In  Insurance.  The  transfer  by  an  assured 
to  his  underwriters  of  his  interest  in  the 
Insured  subject  or  the  procot-ds  of  it.  or 
claims  arising  from  it.  so  far  as  the  Bi 
is  insured  by  :he  policy,  in  order  to  recover 
as  for  a  total  loss. 

"An  abandonment  is  an  act  on  the  part  of 
-  ured,  by  which  he  relinquishes  and 
transfers  to  the  underwriters  his  insurable 
int.  rest,  or  the  proceeds  of  It  or  the  claims 
arising  from  it,  so  far  as  it  is  insured  by 
the  policy."    2  Phil.  Ins.  §  1490. 

The  term  is  used  only  in  reference  to  risks 
in  navigation;  but   the  principle  is  applica- 


ABANDONMENT 


ABANDONMENT 


ble  in  fire  insurance,  where  there  are  rem- 
nants, and  sometimes  also  under  stipulations 
in  life  policies  in  favor  of  creditors ;  2  Phil. 
Ins.  §§  1490,  1514,  1515 ;  3  Kent  2G5 ;  Cincin- 
nati Ins.  Co.  v.  Duffield,  6  Ohio  St  200,  67 
Am.  Dec.  339;  6  East  72. 

The  doctrines  which  have  obtained  in  ma- 
rine insurance  of  constructive  total  loss  and 
abandonment,  salvage  and  general  average, 
are  not  applicable  in  fire  insurance;  May, 
Ins.  §  421  a ;  Hicks  v.  McGebee,  39  Ark.  264. 

The  object  of  abandonment  being  to  recov- 
er the  whole  value  of  the  subject  of  the  in- 
surance, it  can  occur  only  where  the  subject 
itself,  or  remains  of  it,  or  claims  on  account 
of  it,  survive  the  peril  which  is  the  occasion 
of  the  loss ;  2  Phil.  Ins.  §§  1507,  1516 ;  2  Pars. 
Mar.  Ins.  120;  36  Eng.  L.  &  Eq.  198;  3  Kent 
321;  3  Bing.  N.  C.  266.  In  such  case  the  as- 
sured must  elect,  immediately  on  receiving 
intelligence  of  a  loss,  whether  to  abandon, 
and  not  delay  for  the  purpose  of  speculating 
on  the  state  of  the  markets;  2  Phil.  Ins.  § 
16G7.  He  may  have  a  reasonable  time  to  in- 
spect the  cargo,  but  for  no  other  purpose ;  3 
Kent  320.  He  must  give  notice  promptly  to 
the  insurer  of  his  intention;  five  days  held 
too  late ;  5  M.  &  S.  47 ;  see  L.  R.  5  C.  P.  341. 
Notice  of  the  abandonment  of  a  vessel  need 
not  be  given  to  insurers  or  reinsurers  where 
there  is  a  constructive  total  loss;  15  Q.  B. 
D.  11 ;  and  delay  in  giving  notice,  if  it  does 
not  prejudice  the  insurer,  will  not  affect  the 
rights  of  the  insured;  Young  v.  Ins.  Co.,  24 
Fed.  279.  In  cases  of  actual  total  loss,  no- 
tice of  abandonment  is  unnecessary ;  Tyser, 
Mar.  Ins.  §  33. 

In  America,  it  appears  that  the  right  of 
abandonment  is  to  be  judged  by  the  facts 
of  each  particular  case  as  they  existed  at 
the  time  of  abandonment;  Peele  v.  Ins.  Co., 
3  Mas.  27,  Fed.  Cas.  No.  10,905 ;  2  Phil.  Ins. 
§  1536;  Bradlie  v.  Ins.  Co.,  12  Pet.  (U.  S.) 
378,  9  L.  Ed.  1123.  In  England,  the  aban- 
donment may  be  effected  by  subsequent  occur- 
rences, and  the  facts  at  the  time  of  action 
brought  determine  the  right  to  recover;  4 
M.  &  S.  394;  2  Burr.  1198.  But  this  rule 
has  been  doubted  in  England;  2  Dow  474; 
3  Kent  324. 

By  the  doctrine  of  constructive  total  loss, 
a  loss  of  over  one-half  of  the  property  in- 
sured, or  damage  to  the  extent  of  over  one- 
half  its  value,  by  a  peril  insured  against, 
may  be  turned  into  a  total  loss  by  abandon- 
ment;  2  Beach,  Ins.  §  948;  Dwpuy  v.  Ins. 
Co.,  3  Johns.  Cas.  (N.  Y.)  182;  Allen  v.  Ins. 
Co.,  1  Gray  (Mass.)  154.  This  does  not  ap- 
pear to  be  the  English  rule;  9  C.  B.  94;  1 
H.  of  L.  513.  See  Forbes  v.  Ins.  Co.,  1  Gray 
(Mass.)   371. 

The  right  is  waived  by  commencing  re- 
pairs ;  2  Pars.  Mar.  Ins.  140 ;  Humphreys  v. 
Ins.  Co.,  3  Mas.  429,  Fed.  Cas.  No.  6,871; 
Dickey  v.  Ins.  Co.,  3  Wend.  (N.  Y.)  658,  20 
Am.  Dec.  703;  Depau  v.  Ins.  Co.,  5  Cow.  (N. 


Y.)  63,  15  Am.  Dec.  431;  4  App.  Cas.  755; 
but  not  by  temporary  repairs ;  2  Phil.  Ins. 
§  1540;  but  is  not  lost  by  reason  of  the  en- 
hancement of  the  loss  through  the  mere  neg- 
ligence or  mistakes  of  the  master  or  crew. 
It  is  too  late  to  abandon  after  the  arrival 
in  specie  at  the  port  of  destination;  2  Pars. 
Mar.  Ins.  128 ;  4  H.  of  L.  24 ;  Pezant  v.  Ins. 
Co.,  15  Wend.  (N.  Y.)  453.  See  Peters  v. 
Ins.  Co.,  3  S.  &  R.  (Pa.)  25.  An  inexpedient 
or  unnecessary  sale  of  the  subject  by  the 
master  does  not  strengthen  the  right;  2 
Phil.  Ins.  §§  1547,  1555,  1570.  But  the  fact 
that  the  master  only  takes  steps  for  the  safe- 
ty or  recovery  of  the  thing  insured,  will  not 
deprive  the  owners  of  the  right  to  abandon ; 
Tyser,  Mar.  Ins.  §  28.  See  Salvage;  Total 
Loss. 

No  notice  of  abandonment  is  necessary 
where  owner  loses  his  rights  in  a  vessel  by 
sale  under  decree  of  court  of  competent  ju- 
risdiction, in  consequence  of  peril  insured 
against;  13  App.  Cas.  160. 

Abandonment  may  be  made  upon  informa- 
tion entitled  to  credit,  but  if  made  specula- 
tively upon  conjecture,  it  is  null. 

In  the  absence  of  any  stipulation  on  the 
subject,  no  particular  form  of  abandonment 
is  required ;  it  may  be  in  writing  or  oral,  in 
express  terms  or  by  obvious  implication  (but 
see  1  Campb.  541)  ;  but  it  must  be  absolute 
and  unconditional,  and  the  ground  for  it 
must  be  stated;  2  Phil.  Ins.  §§  1678,  1679 
et  seg.;  Bullard  v.  Ins.  Co.,  1  Curt.  C.  C. 
148,  Fed.  Cas.  No.  2,122;  Bell  v.  Beveridge, 
4  Dall.  (U.  S.)  272,  1  L.  Ed.  830;  Peirce 
v.  Ins.  Co.,  18  Pick.  (Mass.)  83,  29  Am.  Dec. 
567;  see  Macy  v.  Ins.  Co.,  9  Mete.  (Mass.) 
354;  Citizens  Ins.  Co.  v.  Glasgow,  9  Mo.  416. 
Acceptance  may  cure  a  defect  in  abandon- 
ment,  but  is  not  necessary  to  its  validity ; 

2  Phil.  Ins.  §  1689.  Nor  is  the  underwriter 
obliged  to  accept  or  decline.  He  may,  how- 
ever, waive  it;  2  Phil.  Ins.  §  1698.  But  it 
is  not  subject  to  be  defeated  by  subsequent 
events ;  2  Phil.  Ins.  §  1704 ;  Peele  v.  Ins.  Co., 

3  Mas.  27,  61,  Fed.  Cas.  No.  10,905 ;  Hum- 
phreys v.  Ins.  Co.,  3  Mas.  429,  Fed.  Cas.  No. 
6,871;  Rhinelander  v.  Ins.  Co.,  4  Cran.  (U. 
S.)  29,  2  L.  Ed.  540;  Schieffelin  v.  Ins.  Co., 
9  Johns.  (N.  Y.)  21.  See  supra.  And  the 
subject  must  be  transferred  free  of  incum- 
brance except  expense  for  salvage;  Allen  v. 
Ins.  Co.,  1  Gray  (Mass.)  154;  Depau  v.  Ins. 
Co.,  5  Cow.  (N.  Y.)  63,  15  Am.  Dec.  431. 
The  right  to  abandon  being  absolute  under 
proper  circumstances,  no  acceptance  is  nec- 
essary. It  is  only  when  the  circumstances 
do  not  warrant  abandonment  that  the  ques- 
tion of  the  validity  of  acceptance  arises.  If 
there  is  an  acceptance  it  must  be  by  some 
distinct  and  unequivocal  act ;  29  N.  B.  510 ; 
but  the  insurer  is  not  bound  to  signify  ac- 
ceptance and  his  silence  justifies  the  conclu- 
sion of  non-acceptance;  Peele  v.  Ins.  Co.,  3 
Mas.  27,  Fed.  Cas.  No.  10,905,  per  Story,  J., 


ABANDONMENT 


ABANDONMENT 


whose  ruling  was  followed  In  L.  R.  6  P.  C. 
224,  in  preference  to  3  Brod.  &  P..  07,  where 
it  was  held  that  the  insurer  must  elect  with- 
in a  reasonable  time  whether  to  accept  But 
if  the  insurer  does  not  accept,  either  express- 
ly or  by  some  act  amounting  to  it,  he  can- 
not hold  the  assured  to  the  abandonment; 
Child  v.  Ins.  Co.,  2  Sandf.  (N.  Y.)  76; 
whether  the  insurer  accepts  is  a  matter  of 
construction  of  his  words  and  conduct; 
Richelieu  &  O.  Nav.  Co.  v.  Ins.  Co.,  136  TT. 
S.  408,  10  Sup.  Ct.  934,  34  L.  Ed.  398;  Badg- 
er v.  Ins.  Co.,  2:"".  Pick.  (Mass.)  347;  Single- 
ton v.  Ins.  Co.,  132  N.  Y.  20S,  30  N.  E.  839. 
See  note.  45  E.  Ed.  1,  where  the  subject  is 
examined.  There  may  be  an  acceptance 
though  there  was  not  strictly  a  right  of 
abandonment;  Copelin  v.  Ins.  Co.,  9  Wall. 
(U.  S.)  461,  V.>  L.  Ed.  739.  It  may  be  con- 
structive and  is  implied  from  taking  posses- 
sion to  raise  and  repair;   Peele  v.  Ins.  Co., 

3  Mas.  27,  Fed.  Cas.  No.  10,905;  Gloucester 
Ins.  Co.  v.  Younger,  2  Curt  322,  Fed.  Cas. 
No.  5.4S7;  but  not  from  partial  repairs  and 
restoration  of  the  property;  Marmaud  v. 
Melledge,  12:;  Mass.  173;  Peele  v.  Ins.  Co., 
7  Pick.  (Mass.)  254,  19  Am.  Dec.  286;  though 
In  such  case  the  return  must  be  made  in  a 
reasonable  time;  id.;  Reynolds  v.  Ins.  Co., 
22  Pick.  (Mass.)  101,  33  Am.  Dec.  727;  Cop- 
elin v.  Ins.  Co.,  46  Mo.  211,  2  Am.  Rep.  504; 
Norton  v.  Ins.  Co.,  10  111.  235;  Copelin  v. 
Ins.  Co.,  9  Wall.  (U.  S.)  461,  19  L.  Ed.  739; 
Young  v.  Ins.  Co.,  24  Fed.  279.  The  effect  of 
a  valid  abandonment  is  to  put  the  insurer 
in  the  place  of  the  insured  with  no  greater 
right  but  entitled  to  all  that  can  be  saved ; 
:  i  nee  Co.  v.  Gossler,  96  IT.  S.  645,  24  L. 
Ed.  863;  and  the  owner  becomes  the  agent 
of  the  underwriter  and  is  bound  to  protect 
his  interest;   Columbian   Ins.  Co.   v.   Ashby, 

4  Pet  (U.  S.)  139,  7  L.  Ed.  809;  Richelieu 
&  O.  Nav.  Co.  v.  Ins.  Co.,  136  U.  S.  408,  10 
Sup.  Ct.  934;  34  L.  Ed.  398.    See  Total  Loss. 

Of  Public  Highway.  Non-user  of  public  al- 
ky for  over  40  years  in  connection  with  af- 
firmative acts  of  abandonment,  justifies  a 
finding  that  it  cease  to  be  a  public  highway ; 
Woodruff  v.  Paddock,  130  N.  Y.  618,  29  N.  E. 
1021,  id.,  56  Hun  288,  9  N.  Y.  Supp.  381.  En- 
croachment on  public  highway  outside  of 
traveled  track  and  use  thereof  by  a  private 
party  for  10  years  did  not  necessarily  show 
abandonment  of  the  highway;  Village  of 
Grandville  v.  Jenison,  S4  Mich.  54,  47  N.  W. 
600. 

Of  Public  Lands.  Title  from  the  state,  un- 
der a  patent,  is  not  affected  by  the  doctrine 
of  abandonment,  unless,  in  consequence,  title 
is  acquired  by  adverse  possession;  Kreamer 
v.  Voneida,  213  Ta.  74,  62  Atl.  51S.  .The  ti- 
tle once  passed  is  never  revested  by  aban- 
donment; id.,  24  Pa.  Super.  347. 

It  has  boon  held  that  the  use  of  property 
for  public  purposes  may  be  abandoned  for  so 
long  a  time  as  to  prevent  the  assertion  of  a 


private  proprietary  interest  as  against  an 
improving  possessor ;  Collett  v.  Board  of 
119  Ind.  27,  21  N.  E.  320.  4  L.  R.  A. 
321.  Failure  to  pay  interest  on  school  lands 
for  15  years  with  no  assertion  of  ownership 
will  prevent  assertion  of  title  as  ag 
sequent  purchaser  from  the  state  who  has 
been  in  possession  of  property  for  10  y. 
Richardson  v.  Doty,  25  Neb.  420,  41  N.  W. 
282. 

Of  Rights.  The  relinquishment  of  a  right. 
It  implies  some  act  of  relinquishment  done 
by  the  owner  without  regard  to  any  future 
possession  by  himself,  or  by  any  other  per- 
son, but  with  an  intention  to  abandon ;  14 
M.  &  W.  7S9;  Dyer  v.  Sanford,  9  Mete 
(Mass.)  395,  43  Am.  Dec.  399;  Dawson  v. 
Daniel,  2  Flip.  309,  Fed.  Cas.  No.  3,669. 
Mere  non-user  does  not  necessarily  or  usu- 
ally constitute  an  abandonment : 
v.  Wiley,  10  Pick.  (Mass.)  310;  Parkins  v. 
Dunham,  3  Strobh.  (S.  C.)  224;  Elliott  v. 
Rhett,  5  Rich.  (S.  C.)  405,  57  Am.  Dec.  750; 
Jewett  v.  Jewett,  16  Barb.  (N.  Y.)  150;  see 
Tud.  Lead.  Cas.  130;  2  Washb.  B. 
There  must  be  actual  relinquishment  and  in- 
tention to  abandon ;  Log-Owners'  Booming 
Co.  v.  Hubbell,  135  Mich.  65,  97  N.  W.  157, 
4  L.  R.  A.  (N.  S.)  573;  Fugate  v.  Pierce,  49 
Mo.  441 ;  Eisele  v.  Oddie,  128  Fed.  941 
ter  v.  Hobson,  131  la.  58,  107  N.  W.  1101: 
Carroll   County    Academy    v.  >    Co., 

104  Ky.  621,  47  S.  W.  617 ;  Watts  v.  Spencer, 
51   Or.   262,   94  Pac.   39.     Intention    may    be 

!  shown    by    Inferential    proof .     '  binder 

j  Mineral  Water  Co.  v.  Fishman,  127  Mo.  App. 

J  207,  104  S.  W.  1156:  United  Shoe  Mach.  Co. 

J  v.  Mach.  Co.,  197  Mass.  206,  83  N.  E.  412. 
It  cannot  be  inferred  from  non-user  alone : 
Doty  v.  Gillett,  43  Mich.  203,  5  N.  \ 
Nor  does  it  result  from  failure  to  take  pos- 
session of  land  for  a  period  less  than  would 
give  title  by  adverse  possession ;  Kreamer  v. 
Voneida,  24  Pa.  Super.  3-17 ;  from  failure  to 
pay  taxes;  id.;  or  from  mere  temporary  ab- 
sence; Hurt  v.  Hollingsworth,  100  U.  S.  104, 
25  L.  Ed.  569.     But  failure  to  pay  taxes  or 

I  exercise  rights  of  ownership  for  over  20  years, 
coupled  with  possession  of  and  improvement 
by  another  under  color  of  title  is  evidence 
of  abandonment;  Timber  v.  Desparois,  IS 
S.  D.  587,  101  N.  W.  S79;  or  coupled  with 
other  acts  showing  intention  not  to  repos- 
sess himself;  Alamosa  Creek  Canal  Co.  v. 
Nelson,  42  Colo.  140,  93  Pac.  1112.  For  old- 
er cases  see  5  L.  EL  A.  2r,:i,  note. 

Abandonment  is  properly  confined  to  in- 
corporeal hereditaments,  as  legal  rights  once 
vested  must  be  divested  according  to  law, 
though  equitable  rights  may  be  abandoned; 
Great  Falls  Co.  v.  Worster,  15  N.  H.  412; 
see  Cringan   v.    N;  n's    Ex'rs,   1    Hen.   & 

M.  iVa.)  420;  and  an  abandonment  combined 
with  sufficiently  lorn.'  possession  by  another 
party  destroys  the  ri^ht  of  the  original  own- 
er; Gregg  v.  Blackmore,  10  Watts  (Pa.)  192; 


ABANDONMENT 


ABANDONMENT 


Barker  v.  Salmon,  2  Mote.  (Mass.)  32;  In-] 
habitants  of  School  Dist.  No.  4  v.  Benson, 
31  Me.  3S1,  52  Am.  Dec.  CIS.  Fee  simple 
title  to  real  estate  cannot  be  lost  by  aban- 
donment :  Barrett  v.  Coal  Co.,  70  Kan.  649, 
TO  Pac.  150;  nor  transferred  by  it;  Sharkey 
v.  Candiani.  4S  Or.  112,  85  Pac  219,  7  L.  R. 
A.  (X.  S.)  701.  But  under  Spanish  Law  it 
may  be  divested,  although  the  question  of 
fact  is  for  the  jury  ;  Fine  v.  Public  Schools, 
30  Mo.  1GG. 

There  may  be  an  abandonment  of  an  ease- 
ment: Pope  v.  Devereux,  5  Gray  (Mass.)  409; 
Shelby  v.  State.  10  Humphr.  (Tcnu.)  105; 
Corning  v.  Gould,  10  Wend.  (N.  Y.)  531; 
Crain  v.  Fox,  10  Barb.  (N.  Y.)  1S4;  3  B.  & 
J;  of  a  mill  site;  French  v.  Mfg.  Co., 
23  Pick.  (Mass.  i  216;  Farrar  v.  Cooper,  34 
Me.  394;  Taylor  v.  Hampton.  4  McCord  (S. 
C.)  96,  17  Aim.  Dec.  710;  7  Bingh.  G82 ;  an 
application  for  land ;  Com.  v.  Rahm,  2  S.  & 
R.  (Pa.)  378;  of  an  improvement;  Fisher  v. 
Lariek,  3  S.  &  R.  (Pa.)  319;  of  a  trust  fund; 
Breedlore  v.  Stump,  3  Yerg.  (Tenn.)  258; 
of  an  invention  or  discovery ;  Wyeth  v. 
Stone.  1  Sto.  2S0,  Fed.  Cas.  No.  18,107 ;  Mel- 
ius v.  Silsbee,  4  Mas.  Ill,  Fed.  Cas.  No.  9,- 
404 ;  property  sunk  in  a  steamboat  and  un- 
claimed :  Creevy  v.  Breedlove,  12  La.  An. 
745 ;  a  mining  claim ;  Davis  v.  Butler,  6  Cal. 
510:  Paine  v.  Griffiths,  86  Fed.  452,  30  C.  C. 
A.  182;  a  right  under  a  land  warrant;  Em- 
ery v.  Spencer,  23  Pa.  271.  An  easement  ac- 
quired by  grant  is  not  lost  by  non-user; 
Butterfield  v.  Reed,  160  Mass.  361,  35  N.  E. 
1128. 

The  burden  of  proof  rests  on  the  party 
claiming  abandonment  of  an  easement ;  Hen- 
nessy  v.  Murdock,  137  N.  Y.  317,  33  N.  E. 
330. 

The  question  of  abandonment  is  one  of 
fact  for  the  jury ;  2  Washb.  R.  P.  82 ;  Wig- 
gins v.  McCleary,  49  N.  Y.  346;  Banks  v. 
Banks,  77  N.  C.  186 ;  Sample  v.  Robb,  16  Pa. 
320. 

The  effect  of  abandonment  when  acted 
upon  by  another  party  is  to  divest  all  the 
owner's  rights ;  Davis  v.  Butler,  6  Cal.  510 ; 
McGoon  v.  Ankeny,  11  111.  558. 

It  was  the  ancient  law  that  the  owner 
could,  by  abandoning  a  slave  or  animal 
which  was  a  cause  of  damage,  relieve  him- 
self of  liability,  and  there  is  a  trace  of  the 
application  of  this  principle  to  inanimate 
things;  the  new  owner  became  liable,  under 
the  doctrine  noxa  caput  sequitur.  The  cause 
of  offense  was  the  slave,  animal,  or  thing, 
and  only  as  a  means  of  getting  at  that  was 
the  liability  of  the  owner  considered;  Dig. 
9,  1,  1,  sec.  12;  Inst.  4,  8,  sec.  5;  Holmes, 
Com.  L.  8. 

Abandonment  is  to  be  distinguished  from 
Dedication,  Surrender.  Waiver.     See  Finder. 

Consult  2  Washb.  R.  P.  56,  82,  85,  253. 
See  also  Curtis.  Pat.  §  381;  Walk.  Patents  § 
87 ;    Ewell,   Fixt. ;   Thomp.   Homest. ;   Dicey, 


Dom.  90.  As  to  Abandonment  of  Patents, 
see  Patents. 

ABANDONMENT  FOR  TORTS.  In  Civil 
Law.  The  relinquisbment  of  a  slave  or  ani- 
mal who  had  committed  a  trespass  to  the 
person  injured,  in  discbarge  of  the  owner's 
liability  for  such  trespass  or  injury-  Lf  this 
were  done,  the  owner  could  not  be  held  to 
any  further  responsibility.  Just.  Inst.  4.  8, 
9.  A  similar  right  exists  in  Louisiana ;  Fitz- 
gerald v.  Ferguson,  11  La.  An.  396. 

ABANDUM  or  ABAND0NUM.  Anything 
sequestered,  proscribed  or  abandoned.  Cun- 
ningham. 

ABARNARE  (Lat.).  To  discover  and  dis- 
close to  a  magistrate  any  secret  crime. 
Leges  Canuii,  cap.  10. 

ABATAMENTUM  (Lat.  abatare).  An  en- 
try by  interposition.  Co.  Litt-  277.  An 
abatement.    Yelv.  151. 

ABATARE.    To  abate.     Yelv.   151. 

ABATE  (Fr.  ibattre,  L.  Fr.  abater).  To 
throw  down,  to  beat  down,  destroy,  quash. 
3  Shars.  Bla.  Com.  168;  Case  v.  Humphrey, 

6  Conn.  140.     See  Abatement  and  Revival. 

ABATEMENT  AND  REVIVAL.  In  Chan- 
cery Practice.  A  suspension  of  all  proceed- 
ings in  a  suit,  from  the  want  of  proper  par- 
ties capable  of  proceeding  therein. 

It  differs  from  an  abatement  at  law  in  this;  that 
in  the  latter  the  action  is  entirely  dead  and  can- 
not be  revived  ;  but  in  the  former  the  right  to  pro- 
ceed is  merely  suspended,  and  may  be  revived  by 
a  supplemental  bill  in  the  nature  of  a  bill  of  re- 
vivor ;  3  Bla.  Com.  301 ;  Boynton  v.  Boynton,  21 
N.  H.  246;  Sto.  Eq.  PI.  §  20  n.  §  354;  Ad.  Eq.  403; 
Mitf.  Eq.  PL,  by  Jeremy  57 ;  Brooks  v.  Jones,  5 
Lea  (Tenn.)  244 ;  Clarke  v.  Mathewson,  12  Pet.  (U. 
S.)  164,  9  L.  Ed.  1041 ;  Kronenberger  v.  Heinemann, 
104  111.  App.  156;  Zoellner  v.  Zoellner,  46  Mich.  511, 
9  N.  W.  831;  where  interest  is  transmitted  by  act 
of  law,  as  to  personal  representative  or  heir  a 
simple  bill  of  revivor  may  be  used ;  Story,  Eq.  PI. 
§  364 ;  Feemster  v.  Markham,  2  J.  J.  Marsh.  (Ky.) 
303,  19  Am.  Dec.  131 ;  Putnam  v.  Putnam,  4  Pick. 
(Mass.)  139;  but  where  by  virtue  of  act  of  party, 
as  to  devisee,  an  original  bill  in  the  nature  of  a 
bill  of  revivor  must  be  used;  Russell  v.  Craig,  3 
Bibb  (Ky.)  377  ;  Wood  v.  Dummer,  3  Mas.  308,  Fed. 
Cas.  No.  17,944.  ^ 

Generally  speaking,  if  any  property  or 
right  in  litigation  is  transmitted  to  another, 
he  is  entitled  to  continue  the  suit,  or  at  least 
have  the  benefit  of  it,  if  he  be  plaintiff; 
Talmage  v.  Pell,  9  Paige,  Ch.  (N.  Y.)  410; 
or  it  may  be  continued  against  him,  or  at 
least  perfected,  if  he  be  defendant;  Story, 
Eq.  PI.   §§  332,  442;   Sedgwick  v.  Cleveland, 

7  Paige.  Oh.  (N.  Y.)  290;  Sinclair  v.  Realty 
Co.,  99  Md.  223,  57  Atl.  664.     See  Pabties. 

Death  of  a  trustee  does  not  abate  a  suit, 
but  it  must  be  suspended  till  a  new  one  is 
appointed;  Shaw  v.  R.  Co.,  5  Gray  (Mass.) 
162 ;  and  the  further  proceedings  must  be  by 
supplemental  bill  in  the  nature  of  a  bill  of 
revivor,  setting  forth  the  proceedings  and 
requiring  an  answer  by  the  new  trustee; 
Greenleaf  v.  Queen,  1  Pet   (U.  S.)  138,  7  L. 


ABATEMENT  AND  REVIVAL 


ABATEMENT  AND  REVIVAL. 


Ed.  85.  And  where  there  was  a  failure  to 
perform  duties  of  a  fiduciary  nature,  carry- 
ing compensation,  the  remedy  therefor  sur- 
vived ;  Warren  v.  Shoe  Co.,  1GG  Mass.  97,  44 
N.  E.  112. 

The  death  of  the  owner  of  the  equity  of 
redemption  abates  a  foreclosure  suit;  Wright 
v.  Phipps,  58  Fed.  552;  but  the  i 
complainant  in  a  bill  to  redeem  was  held 
not  entitled  to  prosecute  it;  Smith  v.  Scan- 
ning, 0  Mass.  422;  though  now  the  rlghl  of 
an  administrator  to  redeem  is  given  by  stat- 
ute to  an  administrator;  and  in  a  late  case 
it  was  held  that  the  right  to  redeem  under 
a  deed  absolute  on  its  face,  but  in  fact  a 
mortgage,  Is  based  on  failure  to  perform  a 
duty  of  a  fiduciary  character  and  the  right 
of  action  survives;  Clark  v.  Seagraves,  18G 
Mass.  430,  71  N.  E.  813. 

There  are  some  cases,  however,  in  which 
a  court  of  equity  will  entertain  application 
notwithstanding  the  suit  is  suspended:  thus, 
proceedings  may  be  had  to  preserve  property 
in  dispute ;  Washington  Ins.  Co.  v.  Slee,  2 
Paige,  Ch.  (N.  Y.)  308;  to  pay  money  out 
of  court  where  the  right  is  clear ;  6  Ves.  2.~0 ; 
or  upon  consent  of  parties ;  2  Ves.  399 ;  to 
punish  a  party  for  breach  of  an  injunction ; 
Hawley  v.  Bennett,  4  Paige,  Ch.  (N.  Y.)  103; 
to  enroll  a  decree;  2  Dick.  612;  or  to  make 
an  order  for  the  delivery  of  deeds  and  writ- 
ings ;  1  Ves.  185.  On  a  bill  to  set  aside  a 
deed,  the  heirs  at  law  or  devisees  of  a  de- 
ceased complainant,  and  not  the  executor 
(unless  title  is  vested  in  him  under  the  will), 
should  file  the  bill  of  revivor;  Webb  v.  Jan- 
ney,  9  App.  D.  C.  41.  The  death  of  the  com- 
plainant in  a  bill  of  discovery  after  answer 
abates  it  and  the  suit  cannot  be  revived;  its 
purpose  is  accomplished ;  Horsburg  v.  Baker, 
1  Pet.   (U.  S.)   232,  7  L.  Ed.  125. 

Although  abatement  in  chancery  suspends 
proceedings,  It  does  not  put  an  end  to  them ; 
a  party,  therefore,  imprisoned  for  contempt 
Is  not  discharged,  but  must  move  that  the 
complaint  be  revived  in  a  specified  time  or 
the  bill  be  dismissed  and  himself  discharged ; 
Dan.  Ch.  Pr.  (6th  Am.  ed.)  *.1543.  Nor  will 
a  receiver  be  discharged  without  special  or- 
der of  court;  McCosker  v.  Brady,  1  Barb. 
Ch.  (N.  Y.)  329.  A  suit  in  equity  for  relief 
against  infringement  of  a  patent  does  not 
abate  by  the  death  of  the  plaintiff;  Illinois 
Cent.  R.  Co.  v.  Turrill,  110  U.  S.  301,  4  Sup. 
Ct.  5,  28  L.  Ed.  154;  nor  does  a  suit  in  Ad- 
miralty for  prize  money ;  Penhallow  v. 
Doane,  3  Dall.  (U.  S.)  54,  1  L.  Ed.  507. 
The  assignee  of  the  rights  of  a  complainant 
may  proceed  by  bill  of  revivor  in  the  old 
suit  or  begin  a  new  one;  Botts  v.  Coziue,  1 
Hoffni.  Ch.    (N.  Y.)  79. 

In  order  to  recover  damages  caused  by  in- 
junction, it  is  unnecessary  to  revive  a  cause 
In  which  a  preliminary  injunction  was  is- 
sued, bond  given,  and  judgment  on  demurrer 
for  defendant  who  died;  the  remedy  is  by 


action  on  the  bond;  Grissler  v.  Stuyvcsant, 
1  Hun  (N.  Y.)   116,  3  Thomp.  &  C. 

All  declinatory  and  dilatory  pleas  in  equi- 
ty are  said  to  be  pleas  in  abatement,  or  in 
the  nature  thereof;  see  Story,  EJq.  PL  I  708: 
Bea.  Eq,  55;  Coop.  Eq.  PL  236.  And  such 
He. is  must  be  pleaded  before  a  plea  in  bar. 
if  at  all;  Story,  Eq.  PI.  §  70!  'tus  v. 

,  7  Johns.  Ch.   (N.  Y.)  214;  Keudrick 
v.   Whitfield.   20  Ga.  379.      See   I' 

Of  Freehold.  The  unlawful  entry  upon 
and  keeping  possession  of  an  estate  by  a 
stranger,  after  the  death  of  the  a: 
and  before  the  heir  or  devisee  takes  j 
sion.  It  is  a  species  of  ouster  by  interven- 
tion between  the  ancestor  or  devisor  and 
the  heir  or  devisee,  thus  defeating  the  right- 
ful possession  of  the  latter;  3  Bla.  Com.  167; 
Co.  Litt.  277a.;  Cruise.  Dig.  P..  1,  60. 

By  the  ancient  laws  of  Normandy,  this 
term  was  used  to  signify  the  act  of  one  who, 
having  an  apparent  right  of  possession  to 
an  estate,  took  possession  of  it  lmmedj 
after  the  death  of  the  actual  possessor,  be- 
fore the  heir  entered.  Howard,  Ancicnncs, 
Lois  des  Franrais,  tome  1,  p.  539. 

Of    Legacies.    The   reduction   of   a   legacy, 
general  or  specific,  on  account  of  the  In 
clency   of  the  estate  of  the  testator  to   pay 
his  debts  and  legacies.  . 

Wh<  d  the  estate  of  a  testator  is  insufficient 
to  pay  both  debts  and  legacies,  it  is  thi 
that   the    general    le  te   pro- 

portionally   to   an    a  ,  nt    to  pay 

the  debts;  Towle  v.  Swasey,  106  Mas-. 
Appeal  of  Trustees  of  University  of  Pennsyl- 
vania,  97  Pa.    187.      If   the   general    leg 
are    exhausted    before    the    debts    are 
then,  and  not  till  then,  the  specif] 
abate,  and  proportionally;   2  B 
and  note;   Bacon,  Abr.  Leg.  II ;   2  P.    \ 
383;  1  Ves.  Sen.  564;  Brant  v. 
2S0;   Armstrong's   Appeal,   63  Pa.   312.     See 
Legacy. 

In  Revenue  Law.  The  deduction  from,  or 
the  refunding  of,  duties  sometimes  made  at 
the  custom  house,  on  account  of  damages  re- 
ceived by  goods  during  importation  or  while 
in  store.     See  R.  S.  §  28 

Of  Nuisances.  The  removal  of  a  nuisance. 
3  Bla.  Com.  5;  Poll.  Torts  210.  See  NUI- 
SANCE. 

Of  Actions  at  Law.  The  overthrow  of  an 
action  caused  by  the  defendant  ;  some 

matter  of  fact  tending  to   impeach   the  cor- 
rectness  of  the   writ   or  declaration,    which 
defeats  the  action  for  the  present,  bul 
not   debar   the  plaintiff    from   reconmn 
it  in  a  better  way.     Stephen.  PI.  47;  Pepper. 
PI.  15;  Webb,  Poll.  Torts;  3  Bla,  < 

t.   PI.    (Gth  Lond.  ed.)    446 ;  Gould,   PL 
ch.  5,  §  65. 

It  has  been  applied  rather  Inappropriately  aj 
a  generic  term  to  all  pleas  of  a  dilatory  nature; 
whereas  the  word  dilatory  would  seem  to  be  the 
more  proper  generic  term,  and  the  word  abatement 
applicable   to   a  certain   portion   of   dilatory    pleas ; 


ABATEMENT  AND  REVIVAL  i 

Com.  Dig.  Abt.  B;  1  Chit.  PI.  440  (6th  Lond.  ed.); 
Gould.  PI.  ch.  5,  §  65.  In  this  general  sense  it  has 
been  used  to  include  pleas  to  the  jurisdiction  of  the 
court.  This  usage,  being  technically  inaccurate,  re- 
sults in  some  contusion  in  the  use  of  the  word  by 
courts  with  respect  to  such  pleas;  Frohlich  v. 
Glass  Co..  144  Mich.  278,  107  N.  W.  889;  Bank  of 
Valley  v.  Gcttinger,  3  W.  Va.  309;  and  by  some 
approved  digests  and  text  writers.  The  distinction 
is  however  not  lost  sight  of;  Bishop  v.  Camp,  39 
Fla.  517,  22  South.  735;  Lewis  v.  Schwinn,  71  111. 
App.  265.    See  Jurisdiction  ;    Plea. 

Matter  in  abatement  dehors  the  record  is 
properly  presented  by  plea  in  abatement; 
Schofield  v.   Palmer,   134  Fed.  753. 

As  to  the  Person  of  the  Plaintiff  and 
dant.  It  may  be  pleaded,  as  to  the 
plaintiff,  that  there  never  was  such  a  person 
in  r,  rum  natura;  1  Chit.  PI.  (6th  Lond.  ed.) 
44S;  Guild  v.  Richardson,  6  Pick.  (Mass.)  370; 
Campbell  v.  Galbreath,  5  Watts  (Pa.)  423; 
Doe  v.  Penfleld,  19  Johns.  (N.  Y.)  308;  Boling- 
er  v.  Fowler,  14  Ark.  27;  Boston  Type  & 
Stereotype  Foundry  v.  Spooner,  5  Vt.  93  (ex- 
cept in  ejectment ;  Doe  v.  Penfield,  19  Johns. 
IN.  Y.]  SOS) ;  and  by  one  of  two  or  more  de- 
fendants as  to  one  or  more  of  his  co-defend- 
ants; Archb.  C.  P.  312.  That  one  of  the 
plaintiffs  is  a  fictitious  person,  to  defeat  the 
action  as  to  all;  Com.  Dig.  Abt.  B,  16;  1 
Chit.  PI.  44S ;  Archb.  C.  P.  304.  This  would 
also  be  a  good  plea  in  bar;  1  B.  &  P.  44. 
That  the  nominal  plaintiff  in  the  action  of 
ejectment  is  fictitious,  is  not  pleadable  in  any 
manner;  4  M.  &  S.  301;  Jones  v.  Gardner, 
10  Johns.  (N.  Y.)  269.  A  defendant  cannot 
plead  matter  which  affects  his  co-defendant 
alone;  Bonzey  v.  Redman,  40  Me.  336;  Har- 
ker  v.  Brink,  24  N.  J.  Law,  333;  Ingraham  v. 
Olcock,  14  N.  H.  243;  Shannon  v.  Comstock, 
21  Wend.  (N.  Y.)  457,  34  Am.  Dec.  262. 

An  action  on  contract  by  a  copartnership, 
the  avails  of  which  have  been  assigned  dur- 
ing its  pendency  to  a  third  person,  does  not 
abate  by  death  of  one  partner,  but  may  be 
prosecuted  to  judgment  without  change  on 
the  record;  Pennsylvania  Fire  Ins.  Co.  v. 
Carnahan,  19  Ohio  Cir.  Ct.  R.  97.  But  when 
the  suit  involves  an  adjustment  of  equities 
between  former  partners  and  new  ones,  it 
should  be  revived  as  against  the  representa- 
tives of  a  new  partner  who  died  pendente 
lite;  Hausling  v.  Rheinfrank,  103  App.  Div. 
517,  9.']  N.  Y.  Supp.  121. 

Certain  legal  disabilities  are  pleadable  in 
abatement,  such  as  outlawry;  Bac.  Abr.  Abt. 
B;  Co.  Litt.  12S  a;  attainder  of  treason  or 
felony ;  3  Bla.  Com.  301 ;  Com.  Dig.  Abt.  E. 
3;  also  praemunire  and  excommunication;  3 
Bla.  Com.  301 ;  Com.  Dig.  Abt.  E.  5.  The  law 
in  reference  to  these  disabilities  can  be  of 
no  practical  importance  in  the  United  States ; 
Gould,  PI.  ch.  5,  §  32. 

Alienage.  That  the  plaintiff  is  an  alien 
friend  is  pleadable  only  in  some  cases,  where, 
for  instance,  he  sues  for  property  which  he 
is  incapacitated  from  holding  or  acquiring; 
Co.  Litt.  129  o;  Stramburg  v.  Heckman,  44 
N.  C.  250*     By  the  common  law,  although  he 


abatement  and  revival 

could  not  inherit,  yet  he  might  acquire  by 
purchase,  and  hold  as  against  all  but  the 
sovereign.  Accordingly  he  has  been  allowed 
in  this  country  to  sue  upon  a  title  by  graitt 
or  devise;  Sheaffe  v.  O'Neil,  1  Mass.  256; 
Fairfax  v.  Hunter,  7  Cranch  (U.  S.)  603,  3 
L.  Ed.  453;  but  see  Siemssen  v.  Bofer,  6  Cal. 
250;  Wacker  v.  Wacker,  26  Mo.  426.  The 
early  English  authority  upon  this  point  was 
otherwise;  Bac.  Abr.  Abt  B,  3,  Aliens  D; 
Co.  Litt.  129  b.  He  Is  in  general  able  to 
maintain  all  actions  relating  to  personal  chat- 
tels or  personal  injuries;  3  Bla.  Com.  384; 
Cowp.  161;  Bac.  Abr.  Aliens  D;  2  Kent  34; 
Co.  Litt.  129  b.  But  an  alien  enemy  can 
maintain  no  action  except  by  license  or  per- 
mission of  the  government;  Bac.  Abr.  Abt. 
B,  3,  Aliens  D;  46;  1  Ld.  Raym.  282;  6 
Term  53,  49;  Russel  v.  Skipwith,  6  Binn 
(Pa.)  241;  Sewall  v.  Lee,  9  Mass.  363;  3  M. 
&  S.  533;  Hamersley  v.  Lambert,  2  Johns. 
Ch.  (N.  Y.)  50S;  Russel  v.  Skipwith,  1  S.  & 
R.  (Pa.)  310.  This  will  be  implied  from  the 
alien  being  suffered  to  remain,  or  to  come  to 
the  country,  afier  the  commencement  of  hos- 
tilities without  being  ordered  away  by  the 
executive;  Clarke  v.  Morey,  10  Johns.  (N.  Y.) 
69.  See  28  Eng.  L.  &  Eq.  319.  But  the  dis- 
ability occurring  after  suit  brought  simply 
suspends  the  right  of  action;  Hutchinson  v. 
Brock,  11  Mass.  119.  The  better  opinion 
seems  to  be  that  an  alien  enemy  cannot  sue 
as  administrator;  Gould,  PI.  ch.  5,  §  44. 
That  both  parties  were  aliens  is  no  ground 
for  abatement  of  a  suit  on  a  contract  made 
in  a  foreign  country;  Rea  v.  Hayden,  3 
Mass.  24.  See  also  Barrell  v.  Benjamin,  15 
Mass.  354;  Roberts  v.  Knights,  89  Mass.  (7 
Allen)  449. 

Corporations.  A  plea  in  abatement  is  the 
proper  manner  of  contesting  the  existence  of 
an  alleged  corporation  plaintiff;  Methodist 
E.  Church  v.  Wood,  Wright  (Ohio)  12 ;  Pro- 
prietors of  Kennebeck  Purchase  v.  Call,  1 
Mass.  4S5;  President,  etc.,  Hanover  Sav. 
Fund  Soc.  v.  Suter,  1  Md.  502;  Rheem  v. 
Wheel  Co.,  33  Pa.  356;  Pitman  v.  Perkins, 
28  N.  H.  93;  Yeaton  v.  Lynn,  5  Pet.  (U.  S.) 
231,  8  L.  Ed.  105.  To  a  suit  brought  in  the 
name  of  the  "Judges  of  the  County  Court," 
after  such  court  has  been  abolished,  the  de- 
fendant may  plead  in  abatement  that  there 
are  no  such  judges;  Judges  of  Fairfield 
County  v.  Phillips,  2  Bay  (S.  C.)  519. 

Where  a  general  incorporation  law  pro- 
vides for  winding  up  the  affairs  of  corpora- 
tions by  trustees,  after  dissolution,  pending 
suits  do  not  thereupon  abate;  Scott  v.  Oil 
Co.,  142  Fed.  287;  Gordon  v.  Pub.  Co.,  66  N. 
Y.  Supp.  828;  Piatt  v.  Ashman,  32  Hun 
(N.  Y.)  230;  until  the  expiration  of  the  pe- 
riod allowed  for  winding  up ;  Dundee  Mortg. 
&  Trust  Inv.  Co.  v.  Hughes,  77  Fed.  855 ;  or, 
if  abated,  they  may  be  revived  against  the 
trustees;  Shayne  v.  Pub.  Co.,  168  N.  Y.  70, 
61  N.  E.  115,  55  L.  R.  A.  777,  85  Am.  St.  Rep. 
654.    The  annulment  of  a  charter  for  non- 


ABATEMENT  AND  REVIVAL 


ABATEMENT  AND  EEVJ 


payment  of  taxes  will  not  abate  a  -suit  prop- 
erly brought  and  previously  prosecuted  to 
Judgment  before  a  referee;  Pyro-Gravure 
60.  v.  Staber,  30  Misc.  658,  64  N.  Y.  Supp. 
520. 

Public  Officers.  Where  a  commission  cre- 
ated by  state  law  Is  abolished  during  the 
pendency  of  a  suit  against  it,  the  officers  who 
are  by  law  authorized  to  wind  up  its  busi- 
are  proper  parties  against  whom  there 
may  be  proce<  dings  for  revival;  Hemingway 
v.  Stansell,  106  I.  S.  399,  1  Sup.  ("t.  473,  27 
L.  Ed,  245.  A  suit  against  a  public  oflicer  in 
his  official  capacity  does  not  as  a  general 
rule  abate  by  reason  of  a  change  in  the  In- 
cumbent of  the  office;  Murphy  v.  Uttei 
U.  S.  95,  22  Sup.  Ct.  776,  40  L.  Ed.  1070; 
Bheehan  v.  Osborn,  138  Cal.  512,  71  Pac.  622; 
Nance  v.  People,  25  Colo.  252,  54  Pac.  G31 ; 
People  v.  Coleman,  99  App.  Div.  88,  91  N.  Y. 
Supp.  432 ;  nor  does  a  suit  by  a  sheriff  for 
conversion  of  goods  levied  by  him  ;  Dickin- 
son v.  Oliver,  112  App.  Div.  806,  99  N.  Y. 
Supp.  432;  but  a  suit  against  the  Secretary 
of  the  Interior  to  compel  the  issue  of  patent 
for  public  lands,  does  abate  on  his  resigna- 
tion;  Warner  Valley  Stock  Co.  v.  Smith,  L65 
U.  S.  28,  17  Sup.  Ct.  225,  41  L.  Ed.  621; 
and  so  does  a  suit  against  a  town  treasurer 
if  his  successor  is  not  made  a  party  in  due 
time;  Saunders  v.  Pendleton,  19  R.  I.  659,  36 
AtL  425. 

A  suit  against  a  receiver  does  not  abate  by 
reason  of  his  discharge ;  Baer  v.  McCullough, 
170  N.  Y.  97,  68  N.  E.  129;  Dougherty  v. 
King,  165  N.  Y.  657,  59  N.  E.  1121;  or  his 
death;  Pickett  v.  Fidelity  &  Casualty  Co., 
GO  S.  C.  477,  38  S.  E.  160 ;  nor  of  an  order 
to  return  the  property  to  the  corporation 
owner ;  Cowen  v.  Merriman,  17  App.  D.  C. 
186. 

When,  pending  suit  by  a  guardian,  the  heir 
comes  of  age,  there  is  no  abatement  and  no 
need  of  revival;  the  guardian  may  be  dis- 
charged; Shattuck  v.  Wolf,  72  Kan.  366,  83 
Pac.  1093. 

Coverture  of  the  plaintiff  is  pleadable  in 
abatement;  Com.  Dig.  Abt.  E,  6;  Bac.  Abr. 
Abt.  G;  Co.  Litt.  132;  3  Term  631;  1  Chit. 
139;  Hayden  v.  Attleborough,  7  Gray 
(Mass.)  33S;  though  occurring  after  suit 
brought;  3  Bla.  Com.  316;  Bac.  Abr.  Abt. 
9:  Wilson  v.  Hamilton,  4  S.  &  R.  (Pa.)  238; 
Newell  v.  Marcy,  17  Mass.  342;  6  Term  265; 
Gerard  v.  Pierce,  5  N.  C.  161;  Guphill  v.  Is- 
bell,  1  Bailey  (S.  C.)  369;  and  see  Hastings 
v.  McKinley,  1  E.  D.  Sm.  (N.  Y.)  273;  but 
not  after  plea  in  bar,  unless  the  marriage 
arose  after  the  plea  in  bar;  Northum  v. 
Kellogg,  15  Conn.  5G9;  but  in  that  case  the 
defendant  must  not  suffer  a  continuance  to 
intervene  between  the  happening  of  this  new 
matter,  or  its  coming  to  his  knowledge,  and 
his  pleading  it;  McCoul  v.  Lekamp,  2  Wheat. 
(U.  S.)  Ill,  4  L.  Ed.  197;  Swan  v.  Wilkin- 
son. 14  Mass.  295;  Templeton  v.  Clary,  1 
Blackf.  (Ind.)  28S;    Perry  v.  Boileau,  10  S.  & 


R.    (Pa.)  20S ;    Lyman   v.   Albee,   7    Vt 
Gatewood  v.  Tunk,  3   Bibb    <Ky.)  2h-..    And 
it  cannot   be  otherwise 

for  a  cause  of  action  that  would  sur- 
vive to   her  on   the  death   ol  her  hus 
12  M.  &  W.  97;   Perry  v.  Boileau,  10  S.  ft  R. 
(Pa.)   20S.    An  action  for  damagt 
sault  by  a  female  plaintiff  doe  ;te  on 

her  marriage;    Stevens  v.   l'i 
Ya.  78,  51  S.  E.  132.     Where 
having   any  interest,   the   defl 
substance,  and  may  be  pleaded  In  ! 
murrer,   or  on    the   general    Issue;     4 
361;    1  H.  Bla.  10S;    Cro.  Jac.  644,  wh< 
she   sues   jointly   or   alone.     So   also    v 
coverture  avoids  the  contract  or  Instrui 
it  is  matter  in  bar;    Steer  v.  St,    :.   I 
R.   (Pa.)  379. 

Where  a  feme  covert  is  sued  without  her 
husband  for  a  cause  of  action  that  would 
survive  against  her,  as  upon  a  com 
before,  or  a  tort  committed  after,  mar. 
the  coverture  is  pleadable  in  abatement;  8 
Term  620;  and  not  otherwise;  9  M.  ft  W. 
290;  Com.  Dig.  Abt.  F,  2.  If  the  marriage 
takes  place  pending  the  action,  it  cannot  be 
id;  2  Ld.  Raym.  1525;  Crockett  v. 
Ross,  5  Greenl.  (Me.)  445;  City  Council  v. 
Van  Eoven,  2  McCord  (S.  C.)  4G9.  It  must 
be  pleaded  by  the  feme  iu  person;  2  Saund. 
209o.  Any  thing  which  suspends  the  cov- 
erture suspends  also  the  right  to  plead  it  : 
Com.  Dig.  Abt.  F,  2,  §  3 ;  Co.  Litt  132  6;  1 
B.  &  P.  358;  Gregory  v.  Paul.  15  Ma- 
Marriage  of  a  female  defendant  in  error  aft- 
er writ  has  been  duly  served,  will  not  abate 
suit,  but  it  will  proceed  as  if  sbe  were  still 
unmarried;  United  States  Mut.  A 
Weller,  30  Fla.  210,  11  South.  7 

Death  of  the  plaintiff  before  purch 
the  writ  may  be  pleaded   in  abatement:     1 
Archb.    C.    P.    304;     Com.    Dig.    Abt.    E,    17: 
Camden    v.    Robertson,    2    Scam.    (Ill 
Hurst  v.  Fisher,  1  W.  &  S.  (Pa.)  438  :  Humph- 
reys v.  Irvine,  6  Smedes  &  M.   (Miss 
Alexander  v.  Davidson,  2  McMul.  (S.  C.)  49. 
So   may   the  death    of  a  sole  plaintiff   who 
dies  pending  his  suit  at  common  law;    Bac. 
Abr.  Abt.  F;    Archer  v.  Colly.  A   Hen. 
(Ya.)  410;   Livingston  v.  Abel.  2  Koot  (Conn.^ 
57;    Smith  v.  Manning,  9  Mass.  422:    DragO 
v.  Stead,  2  Rand.  (Ya.)  454;    Ryder  v. 
inson,  2  Greenl.   (Me.)   127.      Otherwise  now 
by  statute,  in  most  cases,  in  most  if  not  all 
the  states,  and  in  England  since  ^s.-',;_,.     Un- 
der some  statutes  the  right  to  revive  depends 
upon  the  exercise  of  a  sound  discretion  by 
the  court;   Hayden  v.  Huff,  62  Neb. 
N.  W.  184;    Beach  v.  Reynolds.  64   Barb.  (N. 
Y.)  506. 

The  right  to  revive  an  action  is  solely  a 
statutory  right;  Ashby  v.  Harrison's  Com 
mittee,  1  Tat.  &  II.  (Ya.)  1.  It  is  a  qui 
of  right,  not  of  procedure,  and  is  governed 
by  the  lex  fori;  Martin's  Adm'r  v.  H.  Co., 
151  U.  S.  673,  14  Sup.  Ct.  533.  3S  L.  Ed.  311 ; 
Baltimore  &  O.  R.  Co.  v.  Joy,  173  U.  S.  226, 


ABATEMENT  AND  REVIVAL 


10 


ABATEMENT  AND  REVIVAL 


19  Sup.  CL  387,  43  L.  Ed  c>77;  Martin  v.  R. 
Co.,  142  Fed.  650,  73  C.  C.  A.  640,.  0  Ann. 
Cas.  5S2;  Sanders'  Adm'x  v.  R.  Co.,  ill  Fed. 
70S,  49  C.  C.  A.  565 ;  Richardson  v.  R.  Co.,  98 
Mass.  85;  Mexican  Cent.  Ry.  Co.  v.  Good- 
man, 20  Tex.  Civ.  App.  109,  4S  S.  W.  778; 
Austin's  Adm'r  v.  Ry.  Co.,  122  Ky.  304,  91 
S.  W.  742,  5  L.  R.  A.  (N.  S.)  750;  Stratton's 
Independence  v.  Dines,  126  Fed.  968;  Whit- 
ten  v.  Bennett,  77  Fed.  271. 

It  was  held  that  the  death  of  the  sole  com- 
plainant did  not  abate  the  suit  if  the  cause 
of  action  survives;  Keep  v.  Crawford,  92 
111.  App.  5S7 ;  but,  even  where  there  is  a 
statutory  provision  for  revival  all  proceed- 
ings are  suspended  until  it  is  complied  with  ; 
King  v.  Mitchell,  83  111.  App.  632,  judgment 
alarmed  1ST  111.  452,  58  N.  E.  310;  Street  v. 
Smith.  75  Neb.  434,  106  N.  W.  472.  Death 
of  either  party  abates  a  divorce  case;  Bell 
v.  Bell,  181  U.  S.  175,  21  Sup.  Ct.  551,  45  L. 
Ed.  S04 ;  McCurley  v.  McCurley,  60  Md.  189, 
45  Am.  Rep.  717;  In  re  Crandall,  196  N.  Y. 
127,  89  N.  E.  578,  134  Am.  St.  Rep.  830,  17 
Ann.  Cas.  S74;  L.  R.  11  P.  Div.  103.  The 
personal  representatives  are  usually  authoriz- 
ed to  act  in  such  cases.  The  personal  rep- 
resentatives of  a  deceased  plaintiff  are  the 
proper  parties  to  revive  in  replevin ;  Rex- 
road  v.  Johnson,  4  Kan.  App.  333,  45  Pac. 
100S ;  a  suit  to  redeem  property  from  a  tax 
sale;  Clark  v.  Lancy,  178  Mass.  460,  59  N. 
E.  1034;  foreclosure  of  mortgage;  Van 
Brocklin  v.  Van  Brocklin,  17  App.  Div.  226, 
45  N.  Y.  Supp.  541  (but  see  Stancill  v.  Spain, 
133  N.  C.  76,  45  S.  E.  466,  where  heirs  at 
law  or  devisees  were  held  necessary  par- 
ties) ;  on  a  delivery  bond  by  a  deputy  sheriff 
(he  having  no  official  successor  in  office); 
Tucker  v.  Potter,  22  R.  I.  4,  45  Atl.  741; 
ejectment,  when  the  land  was  devised  to  the 
executor  in  trust  to  sell  and  dispose  of  the 
proceeds ;  Bell's  Adm'r  v.  Humphrey,  8  W. 
Va.  1;  an  action  on  a  sick  benefit  policy; 
Columbian  Relief  Fund  Ass'n  v.  Walker,  26 
Ind.  App.  25,  59  N.  E.  36 ;  an  action  for  per- 
sonal injuries,  commenced  by  the  deceased, 
though  assigned  by  him ;  McCafferty  v.  R. 
Co.,  193  Pa.  339,  44  Atl.  435,  74  Am.  St.  Rep. 
690 ;  suit  under  contract  for  service  stip- 
ulating payment  for  passage  back  to  France; 
Bethmont  v.  Davis,  11  Mart.  O.  S.  (La.)  195; 
a  suit  by  a  married  man  against  a  railroad 
company  for  damages  to  homestead ;  South- 
ern Ry.  Co.  v.  Cowan,  129  Ala.  577,  29  South. 
985 ;  trespass  by  two,  where  one  dies ;  Rowe 
v.  Lumber  Co.,  133  N.  C.  433,  45  S.  E.  830; 
an  action  for  damages  to  land,  if  permitted 
to  survive  at  all  (but  see  infra) ;  Mast  v. 
Sapp,  140  N.  C.  533,  53  S.  E.  350,  5  L.  R.  A. 
(N.  S.)  379,  111  Am.  St  Rep.  864,  6  Ann. 
Cas.  3S4 ;  an  action  for  rescission  of  con- 
tract to  cut  and  remove  timber ;  Isham  v. 
Stave  Co.,  25  Oh.  Cir.  Ct.  167. 

The  heir  at  law  or  devisee  is  the  proper 
party  to  revive  in  an  action  for  injury  to 
real  estate;  Texas  &  N.  O.  R.  Co.  v.  Smith, 
35  Tex.  Civ.  App.  351,  80  S.  W.  247. 


If  the  cause  of  action  is  such  that  the 
right  dies  with  the  person,  the  suit  still 
ab;ites.  By  statute  8  &  9  Win.  IV.  ch.  2, 
sect.  7,  which  is  understood  to  enact  the 
common-law  rule,  where  the  form  of  action 
is  such  that  the  death  of  one  of  several 
plaintiffs  will  not  change  the  plea,  the  ac- 
tion does  not  abate  by  the  death  of  any  of 
the  plaintiffs  pending  the  suit. 

The  death  of  both  parties  does  not  abate 
an  action  under  a  statute  providing  that  no 
action  shall  abate  if  the  cause  of  action  sur- 
vives; McNulta  v.  Huntington,  62  App.  Div. 
257,  70  N.  Y.  Supp.  897;  or  under  one  pro- 
viding that  actions  for  injury  to  property 
shall  survive;  Northern  Trust  Co.  v.  Palm- 
er, 171  111.  383,  49  N.  E.  553,  in  cases  meet- 
ing those  conditions  respectively. 

A  Code  provision  forbidding  dismissal  of 
a  cause  by  plaintiff  without  consent  of  de- 
fendant, does  not  affect  the  right  of  revival 
by  personal  representatives  of  plaintiff  after 
his  death;  Kinzie  v.  Riely's  Ex'r,  100  Va. 
709,  42  S.  E.  872. 

In  some  cases  where  an  action  is  saved  by 
statute  from  abatement  on  death  of  plain- 
tiff, the  court  may  permit  the  continuance  of 
the  action  by  his  successor  in  interest ;  Over- 
all v.  Traction  Co.,  112  Mo.  App.  224,  90  S. 
W.  402. 

The  death  of  the  lessor  in  ejectment  never 
abates  the  suit;  Frier  v.  Jackson,  8  Johns. 
(N.  Y.)  495;  Ex  parte  Swan,  23  Ala.  193; 
Thomas  v.  Kelly,  35  N.  C.  43;  Hatfield  v. 
Bushnell,  1  Blatchf.  393,  Fed.  Cas.  No.  6,211 ; 
his  heirs  are  properly  substituted  on  defend- 
ant's petition;  Ballantine  v.  Negley,  158  Pa. 
475,  27  Atl.  1051. 

In  Wasserman  v.  United  States,  161  Fed. 
722,  88  C.  C.  A.  582,  it  was  held  that  the 
fine  of  one  found  guilty  of  contempt,  who 
had  sued  out  a  writ  of  error,  but  died  before 
the  submission  of  the  case  to  the  higher 
court,  should  be  considered  as  a  charge 
against  the  estate,  and  that  the  action  did 
not  abate  by  death. 

On  death  of  administrator  bringing  suit  it 
may  be  revived  by  his  administrator  or  by 
administrator  de  bonis  non;  Wood  v.  Tom- 
lin,  92  Tenn.  514,  22  S.  W.  206.  In  Missouri 
an  action  for  personal  injuries  cannot  be  re- 
vived by  the  administrator  after  plaintiff's 
death ;  Davis  v.  Morgan,  97  Mo.  79,  10  S.  W. 
881 ;  nor  is  such  action  impliedly  saved  in 
West  Virginia  by  the  statute  giving  a  right 
of  action  after  death  to  the  personal  repre- 
sentatives; Martin  v.  R.  Co.,  151  U.  S.  673, 
14  Sup.  Ct.  533,  3S  L.  Ed.  311.  In  New  York 
a  statutory  cause  of  action  for  death  by  neg- 
ligence abates  by  the  death  of  the  wrong- 
doer ;  Hegerich  v.  Keddie,  99  N.  Y.  25S,  1  N. 
E.  7S7,  52  Am.  Rep.  25.  In  Maryland  an  ac- 
tion by  husband  to  recover  damages  for  the 
killing  of  his  wife,  abates  on  his  death ;  Har- 
vey v.  R.  Co.,  70  Md.  319,  17  Atl.  88 ;  but  in 
Texas  a  suit  by  a  husband  for  personal  inju- 
ry to  his  wife  may  be  continued  by  her  after 


ABATEMENT  AND   REVIVAL 


11 


ABATEMENT  AND  REVIVAL 


his  death;  Mexican  Cent.  Ry.  Co.  v.  Good- 
man, 20  Tex.  Civ.  App.  109,  48  S.  W 
and  the  remedy  of  a  son  for  his  own  suffer- 
ing caused  hy  mutilation  of  his  fath  r's  body, 
is  by  new  action,  and  not  by  substitution  of 
himself  as  plaintiff  after  the  death  of  his 
mother  in  a  suit  begun  by  her  for  her  own 
suffering;  Jones  v.  Miller,  35  Wash.  499,  77 
l'ac.  811.  On  the  death  of  a  father  suing 
for  an  injury  causing  the  death  of  his  daugh- 
ter ad  nix  may  revive;  Meekin 
v.  R.  Co.,  1G4  N.  V.  1  15/58  N.  E.  50,  51  L.  R. 
A.  235,  79  Am.  St.  Rep.  635. 

The   death  of    a   party    pending    an    audit 
!S   a   mistrial   and  new  parties  must  be 
ht  in  and  the  case  tried  de  novo,  Car- 
roll v.  Barber,  119  Ga.  856,  47  S.  E.  181. 

The  death  of  plaintiff  after  judgment  and 
pending  motion  for  a  new  trial,  does  not 
abate  the  suit;  Fowden  v.  S.  S.  Co.,  149 
Cal.  151,  SO  Pae.  its;  and  a  decree  in  equity 
in  favor  of  husband  and  wife,  after  the 
death  of  the  husband  survives  to  the  wife. 
though  she  was  not  a  necessary  party;  Ed- 
gerton  v.  Muse,  Dud.  Eq.  (S.  C.)  170.  Where 
a  judgment  on  a  cause  of  action  which  does 
not  survive  was  recovered  against  a  decedent 
and  another,  it  abates  as  to  the  former;  Ham- 
mond v.  Hoffman,  2  Redf.  (N.  Y.)  \V2. 

On  the  death  of  one  of  three  partners 
plaintiff  the  remaining  two  may  prosecute 
to  final  judgment  in  their  own  names ;  Davis 
v.  Davis,  93  Ala.  173,  9  South.  736. 

An  action  by  two  tenants  in  common,  after 
the  death  of  one  who  bequeathed  to  the  sur- 
vivor his  interest  in  a  pending  action  and 
made  him  executor,  may  be  continued  by 
him  for  damages  sustained  by  both ;  McPhil- 
lips  v.  Fitzgerald,  177  N.  Y.  543,  69  N.  E. 
1126.  Under  U.  S.  Rev.  Stat.  §  956,  provid- 
ing that  an  action  may  be  continued  by  a 
surviving  plaintiff  against  a  surviving  de- 
fendant without  abatement,  where  the  cause 
of  action  survives  to  the  surviving  plaintiff 
or  against  the  surviving  defendant,  an  ad- 
ministrator can  neither  continue  nor  defend 
the  action;    Fox  v.  Mackay,  1  Alaska  329. 

The  death  of  sole  defendant  pending  an 
action  abates  it ;  Bac.  Abr.  Abt.  F ;  anony- 
mous, 2  N.  C.  500 ;  McKee  v.  Straub,  2  Binn. 
(Pa.)  1;  Carter  v.  Carr,  1  Gilm.  (Va.)  145; 
Parmer  v.  Frey,  4  McCord  (S.  C.)  1G0;  Mack- 
er  v.  Thomas,  7  Wheat.  (U.  S.)  530,  5  L.  Ed. 
515;  Nutz  v.  Reutter,  1  Watts  (Pa.)  229; 
Mellen  v.  Baldwin,  4  Mass.  4S0;  Merritt  v. 
Lumbert,  8  Greenl.  (Me.)  129;  Petts  v.  [son, 
il  Ga.  151,  56  Am.  Dec.  419;  but  not  after 
a  finding  for  the  plaintiff;  Wilklns  v.  Waln- 
wright,  173  Mass.  212,  53  N.  E3.  397 ;  or  lie- 
cause  of  the  death  of  a  party  after  verdict; 
Eaidley  v.  Jasper,  49  W.  Ya.  528  •".'.)  S.  E. 
169;  but  the  death  of  defendant  after  deci- 
sion, but  before  Judgment,  abates  the  suit; 
Fox  v.  Hopkinson,  19  R.  I.  704,  36  Atl.  824. 
After  abatement  by  reason  of  the  death  of 
defendant,  the  duty  of  instituting  proceedings 
for  revival  rests  upon  the  plaintiff  and  not 


on  the  other  defendants;    Wilkinson  v.  Yor- 
dermark,  v;2  ind.  App.  i 

on  v.  Bartletl  ss  n.  W. 

i   the  defendant  dl  •  serv- 

ice, no  jurisdiction   has  attached  and  the  ex- 
■  cannot  be  made  a  party;  Connaway 
:  ed.  r,7 1 ;    Crowdus'  Adm'r  v. 
Harrison,  9  Ky.  L.  Rep. 
An  action  against  a  surgeon  for  ma! 
with  the  death  of  the  d 
•cr  the  form   of   the  action;    Boor  v. 
Lowrey,  103  Ind.  468,  3  N.   B.   151,   53  Am. 

But   where   one   of   several    co  .' 
dies  pending  the  action,  his  death  Is  b 
eral  no  cause  of  abatement,  even  by  i 
law;  Cro.  Car.  426;  Bac  Abr.  Abt  F;  Gould, 
PI.  ch.  5,  §  93;    Tucker   v.   T'tley,  168 
415.  -17  N.  E.  19S.     If  the  cause  of  action  is 
such  as  would  survive  against  the  survivor 
or  survivors,    the  plaintiff  may  proceed   by 
suggesting  the  death  upon  the  record?;    Tor- 
ry  v.  Robertson,  24  Miss.  10:: ;  Gould,  PI.  ch. 
5,  §  93.     Where  one  of  several  plaintil 
defendants  in  error  dies,  the  sull 
abate  or  require  a   revival  in   th<     - 
Court;    Prior   v.  Kiso,  96  Mo.  316,   9   S.    W. 
898.     The    inconvenience    of    abatement    by 
death  of  parties  was  remedied  by  17  Car.  II. 
ch.  8,  and  8  &  9  Win.  III.  ch.  2,  88.  6,  7.     In 
the  U.  S.,  on  the  death  of  a  sole  defendant, 
his  personal   representatives  may  be  substi- 
tuted if  the  action  could  have  been  originally 
prosecuted  against   them;   Gould,  P 
95.     The  common  law  rule  Is  that  the 
of  action  against  a  tort-feasor  dies  with  him; 
Jones  v.  Barmm,  217  III.  381,  75  N 
Hedekin  v.  Gillespie,  33  Ind.  App.  650,  7_'  N. 
E.   I!:;;    Stratton's    Independence  v.    I 
135  Fed.  449,  68  C.  C.  A.  1C1  ;  and  - 
should  be  pleaded  in  abatement;  <  > 
Corbitt,  3  Cal.  370.     .Many  exceptions  to  this 
rule  exists  by  statute.     When  a  party   has 
been  so  long  dead  as  to  require  consent  to 
revive,    which   is   refused,    it   abates;     New 
Hampshire  Banking  Co.  v.  Ball,  57  Kan.  812, 
48  l'ac.  137. 

As  to  the  effect  of  death  of  parties  on  suit, 
see  5  L.  Ed.  256,  note.  And  as  to 
vival  of  personal  actions  after  the  death  of 
the  plaintiff,  see  Actio  Personalis  Moritub 
Cum  Persona.  As  to  the  effect  of  the  death 
of  a  party  in  suits  for  divorce,  see  that  title. 
Infancy  is  pleadable  in  abatement  to  the 
person  of  the  plaintiff,  unless  the  infant  ap- 
pear by  guardian  or  prochcin  ami;    Co.  Litt 

135    b;    2    Saund.    117;    3    Bla.    C 301  : 

Schemerhorn  v.  Jenkins,  7  Johns.  (N.  Y.)  373  ; 
Hinman  v.  Taylor,  2  Conn.  357;  Blood  v. 
Harrington,  8  Tick.  (Mass.)  552.  He  < 
appear  by  attorney,  since  he  cannot  m. 
power  of  attorney:  3  Saund.  2E.';  Young  v. 
Young,  3  N.  II.  345;  Blood  v.  Harrington,  8 
Pick.  (Mass.)  552;  Smith  v.  Yan  Houten,  9 
N.  J.  L.  381;  Schemerhorn  v.  Jenkins.  7 
Johns.  (X.  Y.)  373.  The  death  of  the  next 
friend    bringing   suit    for    minors   does    not 


ABATEMENT  AND  REVIVAL 


VI 


ABATEMENT  AND  REVIVAL 


abate  suit,  nor  does  the  attainment  of  ma- 
jority by  minors ;  Tucker  v.  Wilson,  G8  Miss. 
693,  9  South.  89S.  Where  an  infant  sues  as 
co-executor  with  an  adult,  both  may  appear 
by  attorney,  for,  the  suit  being  brought  in 
autre  droit,  the  personal  rights  of  the  in- 
fant are  not  affected,  and  therefore  the 
adult  is  permitted  to  appoint  an  attorney  for 
both;  3  Saund.  1212;  Cro.  Eliz.  542.  At  com- 
mon law,  judgment  obtained  for  or  against 
an  infant  plaintiff  who  appears  by  attorney, 
qo  plea  being  interposed,  may  be  reversed  by 
writ  of  error;  1  Rolle,  Abr.  2S7;  Cro.  Jac. 
441.  By  statute,  however,  such  judgment  is 
valid,  if  for  the  infant;  3  Saund.  212  (n. 
5).  A  suit  by  a  guardian  to  compel  an  ac- 
counting by  a  guardian  ad  litem  does  not 
abate  by  reason  of  the  death  of  the  guardian 
or  the  majority  of  the  ward ;  Smith  v.  Min- 
gey,  72  App.  Div.  103,  76  N.  Y.  Supp.  194, 
order  affirmed  172  N.  Y.  650,  65  N.  E.  1122. 

Imprisonment.  A  sentence  to  imprison- 
ment in  New  York,  either  of  plaintiff  or  de- 
fendant, abates  the  action  by  statute;  Gra- 
ham v.  Adams,  2  Johns.  Cas.  (N.  Y.)  408; 
O'Brien  v.  Hagan,  1  Duer  (N.  Y.)  664;  but 
see  Davis  v.  Duffle,  8  Bosw.  (N.  Y.)  617. 

Lunacy.  A  lunatic  may  appear  by  attor- 
ney, and  the  court  will  on  motion  appoint 
an  attorney  for  him ;  Faulkner  v.  McClure, 
16  Johns.  (N.  Y.)  134.  But  a  suit  brought  by 
a  lunatic  under  guardianship  shall  abate; 
Collard  v.  Crane,  Brayt.  (Vt.)  18;  but  it  is 
held  that  a  suit  brought  by  the  committee  of 
an  insane  person  may  be  revived  by  the  ad^ 
ministrator  of  the  latter  after  his  death; 
Straight  v.  Ice,  56  W.  Va.  60,  48  S.  E.  837. 
Quwre  whether  suit  against  committee  of  an 
insane  person  may  be  revived  against  the 
administrators  of  such  person;  Paradise's 
Adm'rs  v.  Cole,  6  Munf.  (Va.)  218. 

Mandamus,  when  brought  against  a  public 
officer,  is  a  personal  action  which  abates  at 
his  death  or  retirement  from  office,  and  his 
successor  cannot  be  substituted  without  stat- 
utory authority;  U.  S.  v.  Butterworth,  169 
U.  S.  600,  18  Sup.  Ct  441,  42  L.  Ed.  873,  cit- 
ing the  prior  cases. 

Misjoinder.  The  joinder  of  improper 
plaintiffs  may  be  pleaded  in  abatement; 
Archb.  C.  PL  304 ;  1  Chit.  PL  8.  Advantage 
may  also  be  taken,  if  the  misjoinder  appear 
on  record,  by  demurrer  in  arrest  of  judg- 
ment, or  by  writ  of  error.  If  it  does  not  ap- 
pear in  the  pleadings,  it  would  be  ground  of 
non-suit  on  the  trial;  1  Chit.  PL  66.  Mis- 
joinder of  defendants  in  a  personal  action  is 
not  subject  of  a  plea  in  abatement;  Wooten 
&  Co.  v.  Nail,  18' Ga.  609;  Archb.  C.  PL  68, 
310;  Durgin  v.  Smith,  115  Mich.  239,  73  N. 
W.  361 ;  otherwise  where  there  is  found  to 
be  no  joint  liability ;  Wright  v.  Reinelt,  118 
Mich.  638,  77  N.  W.  246.  When  an  action  is 
thus  brought  against  two  upon  a  contract 
made  by  one,  it  is  a  good  ground  of  defence 
under  the  general  issue ;  Clayt.  114 ;  Ander- 
son v.  Henshaw,  2  Day    (Conn.)   272;  Dib- 


lee  v.  Best,  11  Johns.  (N.  Y.)  104 ;  1  Esp.  363 ; 
for  in  such  case  the  proof  disproves  the  dec- 
laration- If  several  are  sued  for  a  tort  com- 
mitted by  one,  such  misjoinder  is  no  ground 
of  objection  in  any  manner,  as  of  co-deiend- 
ants  in  actions  ex  delicto,  some  may  be  con- 
victed and  others  acquitted ;  1  Saund.  291. 
In  a  real  action  against  several  persons,  they 
may  plead  several  tenancy ;  that  is,  that  they 
hold  in  severalty,  not  jointly  ;  Com.  Dig.  Abt. 
F,  12;  or  one  of  them  may  take  the  entire 
tenancy  on  himself,  and  pray  judgment  of  the 
writ ;  Com.  Dig.  Abt.  F,  13.  Misjoinder  of  ac- 
tion is  waived  unless  taken  before  defence; 
Organ  v.  R.  Co.,  51  Ark.  235,  11  S.  W.  96. 
Where  a  husband  is  improperly  joined  in  an 
action  concerning  his  wife's  separate  inter- 
est in  land,  the  action  should  be  abated; 
West  v.  Adams  (Va.)  27  S.  E.  496. 

Misnomer  of  plaintiff,  where  the  misnomer 
appears  in  the  declaration,  must  be  pleaded 
iu  abatement;  Jewett  v.  Burroughs,  15  Mass. 
469 ;  Porter  v.  Cresson,  10  S.  &  R.  (Pa.)  257 ; 
State  v.  Dines,  10  Humphr.  (Tenn.)  512; 
Barnes  v.  Perina,  9  Barb.  (N.  Y.)  202;  Pro- 
prietors of  Sunapee  v.  Eastman,  32  N.  H. 
470;  American  Bank  v.  Doolittle,  14  Pick. 
(Mass.)  123;  Trull  v.  Howland,  10  Cush. 
(Mass.)  109,  57  Am.  Dec.  82;  and  he  must 
disclose  his  true  name  and  thereby  enable 
the  plaintiff  to  amend  his  writ;  Com.  v. 
Lewis,  1  Mete.  (Mass.)  151 ;  McCrory  v.  An- 
derson, 103  Ind.  12,  2  N.  E.  211 ;  and  where 
parties  were  improperly  joined  in  suit  on 
covenants  of  indemnity  and  the  only  relief 
was  in  equity,  under  the  statute,  the  action 
was  abated  as  to  them  only ;  Mcllvane  v. 
Lumber  Co.,  105  Va.  613,  54  S.  E.  473.  It  is 
a  good  plea  in  abatement  that  the  party  sues 
by  his  surname  only;  Chappell  v.  Proctor, 
Harp.  (S.  C.)  49 ;  Labat  v.  Ellis,  1  N.  C.  172 ; 
Seely  v.  Boon,  1  N.  J.  L.  138.  A  mistake  in 
the  Christian  name  is  ground  for  abatement ; 
Moss  v.  Flint,  13  111.  570;  or  where  the  in- 
itials merely  are  used;  Smith  v.  Barrett, 
Morris  (la.)  492 ;  City  of  Menominee  v.  Lum- 
ber Co.,  119  Mich.  196,  77  N.  W.  704.  In 
England  the  effect  of  pleas  in  abatement  of 
misnomer  has  been  diminished  by  statute  3 
&  4  Wm.  IV.  ch.  42,  s.  11,  which  allows  an 
amendment  at  the  cost  of  the  plaintiff.  The 
rule  embodied  in  the  English  statute  prevails 
in  this  country. 

If  the  defendant  is  sued  or  declared  against 
by  a  wrong  name,  he  may  plead  the  mistake 
in  abatement ;  3  Bla.  Com.  302 ;  3  East  167 ; 
Bac.  Abr.  D ;  Louisville  &  N.  R.  Co.  v.  Hall, 
12  Bush  (Ky.)  131;  and  in  abatement  only, 
Thompson  v.  Elliott,  5  Mo.  118 ;  Salisbury  v. 
Gillett,  2  Scam.  (111.)  290;  Melvin  v.  Clark, 
45  Ala.  285 ;  Carpenter  v.  State,  8  Mo.  291 ; 
Com.  v.  Lewis,  1  Mete.  (Mass.)  151 ;  but  one 
defendant  cannot  plead  the  misnomer  of  an- 
other, Com.  Dig.  Abt  F,  18;  Archb.  C.  P. 
312;  1  Nev.  &  P.  26.  But  if  having  been 
sued  by  the  wrong  name,  he  is  served  with 
process,  and  fails  to  plead  the  misnomer  in 


ABATEMENT  AND  REVIVAL 


13 


ABATEMENT  AND  REVIVAL 


abatement,  he  will  be  bound  by  the  judg- 
ment; Blooiulield  R.  Co.  v.  Burress,  82  Ind. 
83.    And  a  corporation  setting  op  ;i  misnomer 

in  its  answer,  but  failing  to  state  its  true 
name,  will  be  bound  by  a  judgment  against 
it  in  the  name  by  which  it  was  sued;  Louis- 
ville &  X.  B.  Co.  v.  Hall,  12  Bush  (Ky.)  131. 

The  omission  of  the  initial  letter  between 
aristian  and  surname  of  the  party  is 
not  a  misnomer  or  variance;  Franklin  v. 
Talmadge,  5  Johns.  (N.  Y.)  84.  Since  oyer 
of  the  writ  has  been  prohibited,  the  misnom- 
er must  appear  in  the  declaration  ;  Williard 
v.  Missanl,  l  Cow.  (X.  Y.)  37.  Misnomer  of 
dant  was  never  pleadable  in  any  other 
manner  than  in  abatement;  Thompson  v. 
Elliott,  5  Mo.  118;  Salisbury  v.  Gillett,  2 
Scam.  (111.)  290;  Melvin  v.  Clark,  ir,  Ala.  285; 
Carpenter  v.  State,  8  Mo.  291;  Cum.  v.  Lewis, 
1  Mete.  (Mass.)  151.  In  England  this  plea 
has  been  abolished;  3  &  4  Wm.  IV.  ch.  42, 
s.  11.  And  in  the  states,  generally,  the  plain- 
tiff is  allowed  to  amend  a  misnomer.  The 
misnomer  of  one  of  two  defendants,  as  to  his 
Christian  name,  if  material  at  all  when  sued 
as  a  linn,  must  be  taken  advantage  of  by  plea 
in  abatement;  Whittier  v.  Gould,  S  Watts 
(Pa.)  485. 

In  criminal  practice  the  usual  pleas  in 
abatement  are  for  misnomer.  If  the  indict- 
ment assigns  to  the  defendant  no  Christian 
name,  or  a  wrong  one,  no  surname,  or  a 
wrong  one,  he  can  only  object  to  this  matter 
by  a  plea  in  abatement ;  2  Gabb.  Cr.  L.  327. 
As  to  the  evidence  necessary  in  such  case, 
see  1  M.  &  S.  453 ;  3  Greenl.  Ev.  §  221. 

Non-joinder.  If  one  of  several  joint  ten- 
ants sue,  Co.  Litt  ISO  b ;  Bacon,  Abr.  Joint 
Tenants,  K;  1  B.  &  P.  73 ;  one  of  several 
joint  contractors,  in  an  action  ex  contractu, 
Archb.  G.  P.  48,  53;  one  of  several  partners, 
Puschel  v.  Hoover,  16  111.  340;  Bellas  v. 
Fagely,  19  Pa.  273 ;  one  of  several  joint  exec- 
utors who  have  proved  the  will,  or  even  if 
they  have  not  proved  the  will;  Newton  v. 
Cocke,  10  Ark.  169 ;  1  Chit.  PI.  12,  13 ;  one  of 
several  joint  administrators ;  id.  13 ;  the  de- 
fendant may  plead  the  non-joinder  in  abate- 
ment; Com.  Dig.  Abt.  E;  1  Chit.  PI.  12.  The 
omission  of  one  or  more  of  the  owners  of 
the  property  in  an  action  ex  delicto  is  plead- 
ed in  abatement;  Chandler  v.  Spear,  22  Vt. 
388;  Weare  v.  Burge,  32  N.  C.  169;  Morley  v. 
French,  2  Cush.  (Mass.)  130;  Reading  K.  R. 
v.  Boyer,  13  Pa.  497 ;  Edwards  v.  Hill,  11  111. 
22.  Dormant  partners  may  be  omitted  in  suits 
on  contracts  to  which  they  are  not  privy; 
Clark  v.  Miller,  4  Wend.  (N.  Y.)  62S ;  Wilson  v. 
Wallace,  8  S.  &  R.  (Pa.)  55;  Lord  v.  Baldwin, 
6  Pick.  (Mass.)  352;  Clarkson  v.  Car 
Cow.  (N.  Y.)  85.  A  non-joinder  may  also  be 
taken  advantage  of  in  actions  ex  contractu, 
at  the  trial,  under  the  general  issue,  by  de- 
murrer, or  in  arrest  of  Judgment,  if  it  ap- 
pears on  the  face  of  the  pleadings;  Armine 
v.  Spencer,  4  Wend.  (N.  Y.)  409. 

Non-joinder  of  a  person  as  defendant  who 


is   jointly   interested    in   the   contract    upon 
which  the  action  is  brought  can  only  be  I 
advantage  of  by  plea  in  abatement;  5  Term 
651;   3  Campb.   50;  m    v.    Smith,   IS 

Johns.   (N.  Y.)  459,  9  Am.   Dee  227;   Iline  v. 
Houston,  2  G.   Greene  (la.)   161;  John- 
l  Conn.  531  :  Potter  v.  tic* 
158;   Gove   v.   Lawrence,   24    N.    H. 
Merrick  v.  Lank,  S  Gill  (Md.)  59;   Bend 
v.  Hammond,  1!)  Ala.  340;  Mershon  v.  1! 
sack,  22  N.  J.  L.  372;   Com.  v.   Davis, 
Monr.    (Ky.)    12!>:    Beaaley   v.   Allan.  23  Ga. 
600;  Prunty  v.  Mitchell,  76  Va.  169;  a 
the  mistake  appear  from  the  plaintiff 
pleadings,  when  it  may  be  taken  adv. 
of  by  demurrer  or  in  arrest  of  ju 
Saund.   271;   Robertson   v.   Smith,   18    Johns, 
(X.  Y. )  459,  9  Am.  Dec.  227.    Non-joinder  of 
a  co-tenant  may  be  pleaded   when  the  suit 
respects  the  land  held  in  common;  Son 
v.   Hill,  44  Me.  92.  69  Am.  Dee.  85;  stare  v. 
Townsend,  2  Harring.  (Del.)  277.     When  the 
contract  is  several  as  well  as  joint,  the  plain- 
tiff is  at  liberty  to  proceed  against  the  par- 
ties   separately    or   jointly;    and   where    one 
member  of  a  firm  is  sued  separately  on  an 
endorsement,    the   liability    being   joinl 
several,    lie    may    have    the    other    partners 
made  parties  but  cannot  abate  the  suit  for 
their  non-joinder:  .Jameson  v.  Smith.  19  Tex. 
Civ.  App.   90,   46   S.    W.    SOI.      In   actions   of 
tort  the  plaintiff  may  join   the  parties  con- 
cerned in  the  tort,  or  not,  at  his  el©  Hon;   1 
Saund.  291;  3  P..  &  P.  54;  Gould.  I",  ch,  2, 
§  IIS.    The  non-joinder  of  any  of  the  wrong- 
doers is  no  defence  in  any  form  of  a< 
Buddington  v.  Shearer,  22  Pick.  (Mass.)   127. 
'  When   husband  and    wife   should   be 
jointly,  and  one  is  sued  alone,  the  non-join- 
der may  be  pleaded  in  abatement;  Archb.  C. 
P.  309.     Non-joinder  of  co-executors  or  co- 
administrators   may    be    pleaded    in    abate- 
ment; Com.  Dig.  Abt.  F.    The  form  of  action 
is  of  no  account  where  the  action  is  substan- 
tially founded  in  contract:  6  Term  369.    The 
law  under  this  head  has  in  a  great  measure 
become  obsolete  in  many  of  the   States,   by 
statutory  provisions  making  contracts  which 
by   the  common  law   were  joint,   both   joint 
and  several. 

Pendency  of  another  action  must  be  plead- 
ed in  abatement  and  not  in  bar;  Mattel  v. 
Conant.  156  Mass.  418,  31  N.  E.  487;  Central 
Railroad  &  Banking  Co.  v.  Coleman.-  88 
294,  14  S.  B.  382;  Danforth  v.  R.  Co..  93  Ala. 
614.  11  South.  60;  and  the  Judgment  of  the 
court  below  thereon  is  not  subject  to  n 
Stephens  v.  Bank,  111  D.  S.  197, 
336,  28  L.  Ed.  399.  But  where  two  or  more 
tribunals  have  concurrent  jurisdiction  on  the 
same  subject-matter  between  the  same  par- 
ties, a  suit  commenced  in  any  one  of  them  is 
a  bar  to  an  action  for  the  same  car.se  in  any 
other;  Shelby  v.  Bacon,  10  How.  (TJ.  S.)  56, 
13  L.  Ed.  326.  The  rule  in  equity  is  analo- 
gous to  the  rule  at  law;  Insurance  Co.  v. 
Brune,  96  U.  S.  588,  24  L.  Ed.  737;  but  it  is 


ABATEMENT  AND  REVIVAL 


14 


ABATEMENT  AND  REVIVAL 


no  ground  for  abatement  of  an  action  at 
law,  that  a  suit  in  equity  is  pending  between 
the  same  parties  for  the  same  money  where 
the  result  of  the  action  at  law  may  be  re- 
quired to  perfect  the  decree  in  equity;  Kit- 
tredge  v.  Race,  92  U.  S.  116,  23  L.  Ed.  488. 
Prior  pendency  of  an  action  unless  both  are 
in  the  same  jurisdiction  is  not  cause  for 
abatement;  O'Reilly  v.  R.  Co.,  1G  R.  I.  388, 
17  Atl.  171,  900,  19  Atl.  244,  5  L.  R.  A.  364, 
G  L.  R.  A.  719;  Stanton  v.  Embry,  93  U.  S. 
548,  23  L  Ed.  9S3.  It  must  be  the  same 
cause,  founded  on  the  same  facts,  between 
the  same  parties,  for  the  same  rights  and  the 
same  relief;  Watson  v.  Jones,  13  Wall.  (U. 
S.)  679,  20  L.  Ed.  666 ;  Marchand  v.  Frellsen, 
105  U.  S.  423,  2G  L.  Ed.  1057;  Spencer  v. 
Johnston,  58  Neb.  44,  78  N.  W.  482 ;  Kansas 
City  S.  Ry.  Co.  v.  Railroad  Commission,  106 
La.  583,  31  South.  131;  Richardson  v.  Opelt, 
GO  Neb.  ISO,  82  N.  W.  377.  Pendency  of  suit 
in  a  state  court  is  no  ground  for  a  plea  in 
abatement  to  a  suit  upon  same  cause  in  a 
Federal  court;  Wilcox  &  Gibbs  Guano  Co.  v. 
Ins.  Co.,  61  Fed.  199;  Piquignot  v.  R.  Co., 
16  How.  (U.  S.)  104,  14  L.  Ed.  863;  and  see 
Gordon  v.  Gilfoil,  99  U.  S.  16S,  25  L.  Ed.  383 ; 
but  see  Wallace  v.  McConnell,  13  Pet  (U. 
S.)  136,  10  L.  Ed.  95;  Hunt  v.  Cotton  Ex- 
change, 205  U.  S.  322,  27  Sup.  Ct.  529,  51  L. 
21 ;  Barnsdall  v.  Waltemeyer,  142  Fed. 
415,  73  C.  C  A.  515;  Boatmen's  Bank  v. 
Fritzlen,  135  Fed.  650,  68  C  C.  A.  28S ;  Bar- 
ber Asphalt  Pav.  Co.  v.  Morris,  132  Fed. 
945,  66  C.  C.  A.  55,  67  L.  R.  A.  761;  City  of 
Mankato  v.  Paving  Co.,  142  Fed.  329,  73  C. 
C.  A.  439;  Gamble  v.  City  of  San  Diego,  79 
Fed.  487;  but  the  latter  court  will  stay  pro- 
ceedings until  the  other  suit  is  determined; 
Zimmerman  v.  So  Relle,  80  Fed.  417,  25  C. 
C.  A.  518;  Bunker  Hill  &  S.  Mining  &  C. 
Co.  v.  Mining  Co.,  109  Fed.  504,  47  C  C  A. 
200 ;  or  compel  an  election ;  Insurance  Co.  v. 
Brune,  96  U.  S.  OSS,  24  L.  Ed.  737.  Pend- 
ency of  prior  suit  in  one  state  cannot  be 
pleaded  in  abatement  of  suit  for  same  cause 
and  between  same  parties  in  another  state ; 
Sandwich  Mfg.  Co.  v.  Earl,  56  Minn.  390, 
57  N.  W.  938;  Renner  v.  Marshall,  1  Wheat. 
(U.  S.)  215,  4  L.  Ed.  74;  nor  is  a  libel  of  a 
vessel,  under  the  Chinese  Exclusion  Act,  for 
smuggling  opium,  barred  by  a  prior  libel  for 
similar  offenses  in  another  Federal  Court; 
The  Haytian  Republic.  154  U.  S.  118,  14 
Sup.  Ct.  992,  3S  L.  Ed.  930.  Pendency  of  a 
suit  in  a  foreign  country  between  the  same 
parties  and  for  same  cause  would  not  bar  or 
abate  an  action;  Insurance  Co.  v.  Brune,  96 
U.  S.  588,  24  L.  Ed.  737;  Stanton  v.  Embry, 
93  U.  S.  548,  23  L.  Ed.  983,  42  L.  R.  A.  449, 
note;  Crossman  v.  Rubber  Co.,  60  N.  Y.  Sup- 
er. Ct.  68,  16  N.  Y.  Supp.  609 ;  Harvey  v.  R. 
Co.,  50  Minn.  405,  52  N.  W.  905,  17  L.  R.  A. 
S4 ;  North  British  Mercantile  Ins.  Co.  v. 
Bank,  3  Tex.  Civ.  App.  293,  22  S.  W.  992. 
A  good  answer  to  plea  in  abatement  of  pend- 
ency of  prior  suit,  is  that  such  action  has 


been  dismissed  since  trial  of  second  action 
began  ;  Moore  v.  Hopkins,  S3  Cal.  270,  23  Pac. 
318,  17  Am.  St.  Rep.  248;  Nichols  v.  Clark, 
45  Minn.  102,  47  N.  W.  462;  Warder  v.  Hen- 
ry, 117  Mo.  530,  23  S.  W.  776;  Clark  v.  Corn- 
ford,  45  La.  Ann.  502,  12  South.  763. 

Privilege  of  defendant  from  being  sued 
may  be  pleaded  in  abatement ;  :>Iarr  v.  John- 
son, 9  Yerg.  (Tenn.)  1;  Bac.  Abr.  Abt.  C. 
See  Privilege.  A  peer  of  England  cannot, 
as  formerly,  plead  his  peerage  in  abatement 
of  a  writ  of  summons;  2  Wm.  IV.  ch.  39. 
It  is  a  good  cause  of  abatement  that  the  de- 
fendant was  arrested  at  a  time  when  he  was 
privileged  from  arrest;  Hubbard  v.  Sanborn, 
2  N.  H.  46S;  Legrand  v.  Bodinger,  4  T.  B. 
Monr.  (Ky.)  539;  or  that  he  was  served  with 
process  when  privileged  from  suits;  Van  Al- 
styne  v.  Dearborn,  2  Wend.  (N.  Y.)  586;  Ilal- 
sey  v.  Stewart,  4  N.  J.  L.  366;  Greening  v. 
Sheffield,  Minor  (Ala.)  276 ;  but  a  statute  al- 
lowing such  plea  applies  not  to  persons  im- 
providently  arrested,  but  only  to  the  privi- 
leged classes ;  Bank  of  Vergennes  v.  Barker, 
27  Vt.  243.  The  privilege  of  defendant  as 
member  of  the  legislature  has  been  pleaded 
in  abatement;  King  v.  Coit,  4  Day  (Conn.) 
129 ;  but  the  privilege  of  a  non-resident  wit- 
ness cannot  be;  Wilkins'  Adm'r  v.  Brock,  79 
Vt.  57,  64  Atl.  232. 

For  cases  where  the  defendant  may  plead  , 
non-tenure,  see  Archb.  C.  P.  310;  Cro.  Eliz. 
559;  Manning  v.  Laboree,  33  Me.  343. 

Where  he  may  plead  a  disclaimer,  see 
Archb.  C.  P.;  Com.  Dig.  Abt  F,  15;  Mills  v. 
Peirce,  2  N.  H.  10. 

Pleas  in  Abatement  to  the  Count  requir- 
ed oyer  of  the  original  writ ;  and,  as  this 
cannot  now  be  had,  these  pleas  are,  it  seems, 
abolished;  1  Chit.  PI.  405  (6th  Lond.  ed.) ; 
Saund.  PI.  Abatement. 

Pleas  in  Abatement  of  the  Writ. — In 
general,  any  irregularity,  defect,  or  infor- 
mality in  the  terms,  form,  or  structure  of 
the  writ,  or  mode  of  issuing  it,  is  a  ground 
of  abatement;  Gould,  PI.  ch.  5,  s.  132. 
Among  them  may  be  enumerated  want  of 
date,  or  impossible  date;  want  of  venue,  or, 
in  local  actions,  a  wrong  venue;  a  defective 
return;  Gould,  PI.  ch.  5,  s.  133.  Oyer 
of  the  writ  being  prohibited,  these  errors 
cannot  be  objected  to  unless  they  appear  in 
the  declaration,  which  is  presumed  to  cor- 
respond with  the  writ ;  Campbell  v.  Chaffee, 
6  Fla.  724;  3  B.  &  P.  399;  14  M.  &  W.  161. 
The  objection  then  is  to  the  writ  through 
the  declaration;  1  B.  &  P.  648;  there  being 
no  plea  to  the  declaration  alone,  but  in  bar ; 
2  Saund.  209.  A  variance  between  writ  and 
declaration  may  properly  be  pleaded  in 
abatement;  Weld  v.  Hubbard,  11  111.  573; 
Pierce  v.  Lacy,  23  Miss.  193. 

Such  pleas  are  either  to  the  form  of  the 
writ,  or  to   the  action   thereof. 

Those  of  the  first  description  were  former- 
ly either  for  matter  apparent  on  the  face  of 


ABATEMENT  AND  REVIVAL 


15 


ABATEMENT  AND  REVIVAL 


the  writ,  or  for  matter  dehors;  Com.  Dig. 
Abt.   H,  17. 

Pleas  iu  abatement  to  the  form  of  the 
writ  were  formerly  -allowed  for  very  trifling 
errors  apparent  on  the  face  of  the  writ; 
2  B.  &  P.  395,  but  since  oyer  has  been  pro- 
hibited, have  fallen  into  disuse;  Tidd,  Pr. 
636. 

Pleas  in  abatement  of  the  form  of  the 
writ  arc  now  principally  tor  matters  dehors; 
Com.  Dig.  Abt.  II,  17;  existing  at  the  time  ot 
suing  out  the  writ,  or  arising  afterwards; 
such  as  misnomer  of  the  plaintiffs  or  de- 
fendant's name;  Tidd,  Pr.  637. 

Pleas  in  Abatement  to  the  Action  ot  the 
Writ  are  thai  the  action  is  misconceived,  as 
if  assumpsit  is  brought  instead  of  account,  or 
iss  when  case  is  the  proper  action;  1 
Show.  71;  Tidd,  Pr.  579;  or  that  the  right 
of  action  had  not  accrued  at  the  commence- 
ment of  the  suit;  Cro.  Eliz.  325;  Com.  Dig. 
Action,  E,  1.  But  these  pleas  are  unusual, 
since  advantage  may  be  taken  for  the  same 
reasons  on  demurrer  or  under  the  general 
issue;  Gould,  PI.  ch.  5,  s.  137;  1  C.  &  M.  492, 
7G8. 

Variance.  Where  the  count  varies  from 
the  writ,  or  the  writ  varies  from  the  record 
or  instrument  on  which  the  action  is  brought, 
it  is  pleadable  in  abatement ;  Cro.  Eliz.  722 ; 
1  H.  Bla.  249;  McNeill  v.  Arnold,  17  Ark. 
154;  Carpenter  v.  Hoyt,  17  111.  529;  Smith 
v.  Butler,  25  N.  H.  521;  and  not  otherwise; 
Lovell  v.  Doble,  Quincy  (Mass.)  88.  If  the 
variance  is  only  in  matter  of  mere  form,  as 
in  time  or  place,  when  that  circumstance  is 
immaterial,  advantage  can  be  taken  only  by 
plea  in  abatement;  Riley  v.  Murray,  8  Ind. 
354;  Cruikshank  v.  Brown.  5  Oilman  (111.) 
7.-,;  Latch  173;  Gould,  PI.  ch.  5,  s.  97.  But 
if  the  variance  is  in  matter  of  substance,  as 
if  the  writ  sounds  in  contract  and  the  dec- 
laration in  tort,  advantage  may  also  be  taken 
by  motion  in  arrest  of  judgment;  Pitman  v. 
Perkins.  28  N.  H.  90;  Cro.  Eliz.  722.  Pleas 
under  this  head  have  been  virtually  abol- 
ished by  the  rule  refusing  oyer  of  the  writ ; 
and  the  operation  of  this  rule  extends  to  all 
pleas  in  abatement  that  cannot  be  proved 
without  examination  of  the  writ;  Gould.  PI. 
ch.  5,  s.  101.  It  seems  that  oyer  of  the  writ 
is  allowed  in  some  of  the  states  which  retain 
the  old  system  of  pleading,  as  well  as  in 
those  which  have  adopted  new  systems.  In 
such  states  these  rules  as  to  variance  are 
of  force;  Pitman  v.  Perkins,  28  N.  H.  90; 
Carpenter  v.  Hoyt,  17  111.  529;  Chapman  v. 
Spence,  22  Ala.  588;  Pierce  v.  Lacy,  23  -Miss. 
193;  Riley  v.  Murray,  8  Ind.  364;  Lary  v. 
Evans,  35  N.  II.  172;  McNeill  v.  Arnold,  17 
Ark.  J54:  Giles  v.  Perryman,  1  Ilarr.  &  <;. 
(Md.)  104;  White  v.  Walker,  1  T.  B.  Monr. 
(Ky.)  35;  Chirac  v.  Reinicker,  11  Wheat.  (U. 
S.)  2S0,  6  L.  Ed.  474;  Garland  v.  Chattle,  12 
Johns.  (N.  Y.)  430;  President,  etc.,  of  Bank 
of  New  Brunswick  v.  Arrowsmith,  9  N.  J.  L. 
2S4.     See  Variance. 


Qualities  of  Pleas  in  Abatement.     The 

defendant   may   plead  in   abatement  to 
and  demur  or  plead  in  bar  to  the  resin  . 

•laration  ;   2  Saund.  210.     rE 
rule  is   that   whatever  proves  the  writ 
at  the  time  of  suing  it   out    shall  abate  the 
writ  entirely;  1  Saund.  286  m.  7). 

As  this  plea  delays  the  ascertainment  of 
the  merits  of  the  action,  it  is  not  favored  by 
the  courts;   the  greatest  accuracy  and 

fore  required;  and  it  cannot 
be  amended;  2  Saund.  298;  Co.  Litt  392;  13 
.M.   &    W.    474;    Jenkins    v.    Pepoon,   2    ■' 
Cas.   (N.  Y.)  :,>\-\  8  Bingh.  416;  Getchell  v. 
Boyd,  44  Me.  482;   Mandel  v.   Peet,  18  Ark. 
236;    Anonymous,    1    Hemp.    215,    Fed. 
No.    18.221;   Roberts   v.    Beim,    27    Ala. 
It  must  contain   a   direct,   full,   and   positive 
averment  of  all  the  material  facts;  M 
Nash,  30  Vt.  70;   Lary   v.   Evans,   35  N.  II. 
172;  Ellis  v.  Ellis,  4  U.  I.  110;  Tweed  v.  Lib- 
bey,  37  Me.  49 ;   Dinsmore  v.  Pendexter,  2S 
N.    H.    18;   Townsend   v.   Jeffries'   Adn 
Ala.  329;  Wales  v.  Jones,  1  Mich.   254.     It 
must  give  enough  so  as  to  enable  the  plain- 
tiff  by  amendment  completely  to  supply   the 
defect   or   avoid   the   mistake   on    which   the 
plea  is  founded;  4  Term  224;   1    Saund.  271 
(n.    4);    Wadsworth    v.     Woodford,     1     Day 
(Conn.)  2S;  Rea  v.  Hayden,  3  Mass.  24;  Bur- 
row  v.    Sellers'    Ex'rs.    2    N.   C.   501  ;   2   Ld. 
Raym.  1178;  1  Bast  634. 

It  must  not  be  double  or  repugnant:  ::  M. 
&  W.  007.  It  must  have  an  apt  and  | 
beginning  and  conclusion;  3  Term  186  ; 
kins  v.  Pepoon,  2  Johns.  Caa  (N.  I.)  312; 
Schoonmakers'  Ex'rs  v.  Elmendorf,  10  Johns. 
(N.  Y.)  49;  2  Saund.  209.  The  whole  matter 
of  complaint  must  be  covered  by  the  plea;  2 
B.  &  P.  420.  It  cannot  he  pleaded  after 
making  full  defence;  1  Chit  PL  441  (6th 
Loud.  ed.). 

A  plea  in  abatement  and  a  plea  or  answer 
in  bar  cannot  be  pleaded  together:  Southern 
BldgL  &  Loan  Ass'n  v.  Ins.  Co..  23  Pa.  Super. 
Ct.  SS;  Huntington  Mfg.  Co.  v.  Schofield,  28 
Ind.   App.   95,   62   N.   E.   106;  Trentman   v. 
Fletcher,  100  Ind.  105;  Carmien  v.  Cornell, 
14S  Ind.  83,  47  N.  E.  216   (in  Indiana  U 
a  statute  forbidding  it;  Field  v.  Malom 
Ind.  251,  l  N.  E.  507)  :  conti  ■ 
prie,   125  Mass.  472;  O'Loughlin  v.  Bird.   128 
000;  Parks  v.  Smith,  155  Mass.  26,  28 
N.  E.  1044;  (where  expressions  other* 
Pratt  v.  Sanger,  4  Gray  [Mass.]  84  and  Mor- 
ton   v.    Sweetser,    12   Allen    [Mass.]    134 
characterized  as  obiter)  ;   Ilurlburt  v.   Palm- 
■   Neb.    L58,  57   \'.    W.    L018 :   T<       lin  v. 
Kimsey.   74   Neb.  614,   105   N.   W.  89   (citing 
many  intermediate  cases  and  establishing  the 
rule  that  a  plea  to  the  meri  filed 

with  one  to  the  Jurisdiction,  when  the  lat- 
ter sets  up  an  objection  dehors  thi 
and  see  Reynol  I      '-■  83  Va.  817,  3  S. 

E.  710,  5  Am.  St.  Bop.  :U7.  See  also  Duke 
V.  Duke.  70  N.  J.  Eq.  135,  62  Atl.  466;  and  a 
plea  to  the  merits  filed  simultaneously  with 


ABATEMENT  AND  REVIVAL 


16 


ABATEMENT  AND  REVIVAL. 


a  plea  In  abatement  waives  the  latter;  rut- 1 
nam  Lumber  Co.  v.  Ellis-Young  Co.,  50  Fla. 
251,  39  South.  193;  City  of  Covington  v.  Lim- 
erick, 40  S.  W.  254,  19  Ky.  L.  Rep.  330;  Las- 
sas  v.  McCarty,  47  Or.  474,  84  Pac.  70;  Mau- 
pin  v.  Ins.  Co.,  53  W.  Va.  557,  45  S.  E.  1003; 
Crowns  v.  Land  Co.,  99  Wis.  103,  74  N.  W. 
5-10. 

In  some  states  this  rule  is  changed  by  stat- 
ute; Moffitt  v.  Chronicle  Co.,  107  la.  407,  78 
N.  W.  45;  Little  Rock  Trust  Co.  v.  R.  Co., 
i!).i  Mo.  009,  93  S.  W.  944;  Thach  v.  Mut 
Ace.  Ass'n,  114  Tenn.  271,  S7  S.  W.  255; 
Pyron  &  Davidson  v.  Graef,  31  Tex.  Civ. 
App.  405,  72  S.  W.  101;  or  rule  of  court;  Na- 
tional Fraternity  v.  Circuit  Judge,  127  Mich. 
186,  S6  N.  W.  540. 

But  this  rule  was  held  not  to  apply  to  a 
special  plea  denying  partnership  of  the  plain- 
tiffs, filed  under  a  statute  requiring  denial 
of  the  character  in  which  the  plaintiff  sues 
in  order  to  control  it ;  Robinson  v.  Parker,  11 
App.  D.  C.  132. 

As  to  the  form  of  pleas  in  abatement,  see 
Harvey  v.  Hall,  22  Vt.  211;  1  Chit.  PI.  (6th 
Lond.  ed.)  454;  Com.  Dig.  Abt.  I,  19;  2 
Saund.  1  (n.  2). 

As  to  the  time  of  pleading  matter  in  abate- 
ment, it  must  be  pleaded  before  any  plea  to 
the  merits,  both  in  "civil  and  criminal  cases, 
except  in  cases  where  it  arises  or  comes  to 
the  knowledge  of  the  party  subsequently ; 
Turns  v.  Com.,  6  Mete.  (Mass.)  224;  Univer- 
sity of  Vermont  v.  Joslyn,  21  Vt.  52 ;  Inhab- 
itants of  Plantation  No.  9  v.  Bean,  40  Me. 
218;  Butts  v.  Grayson,  14  Ark.  445;  Hart  v. 
Turk,  15  Ala.  675;  Hatry  v.  Shuman,  13 
Mo.  547;  Ricker  v.  Scofield,  28  111.  App.  32; 
and  the  right  is  waived  by  a  subsequent  plea 
to  the  merits;  Sheppard  v.  Graves,  14  How. 
(U.  S.)  505,  14  L.  Ed.  518;  Hart  v.  Turk,  15 
Ala.  075;  Smith  v.  State,  19  Conn.  493; 
Saum  v.  Bd.  of  Corn's,  1  G.  Greene  (la.)  165; 
Chapman  v.  Davis,  4  Gill  (Md.)  166;  Cook 
v.  Burnley,  11  Wall.  (U.  S.)  659,  20  L.  Ed.  29. 
See  Plea  puis  darrein  continuance. 

Demurrer  to  complaint  for  insufficiency  of 
facts,  waives  all  matter  in  abatement;  Marx 
v.  Croisan,  17  Or.  393,  21  Pac.  310. 

Of  the  Affidavit  of  Truth.  Every  dilatory 
plea  must  be  proven  to  be  true,  either  by 
affidavit,  by  matter  apparent  upon  the  rec- 
ord, or  probable  matter  shown  to  the  court 
to  induce  them  to  believe  it;  3  B.  &  P.  397; 
Holden  v.  Scanlin,  30  Vt  177;  White  v.  Whit- 
man, 1  Curt.  494,  Fed.  Cas.  No.  17,561; 
Humphrey  v.  Whitten,  17  Ala.  30 ;  Knowl- 
ton  v.  Culver,  1  Chand.  (Wis.)  16;  Bank  of 
Tennessee  v.  Jones,  1  Swan  (Tenn.)  391; 
Saum  v.  Bd.  of  Corn's,  1  G.  Greene  (la.)  165. 
It  is  not  necessary  that  the  affidavit  should 
be  made  by  the  party  himself;  his  attorney, 
or  even  a  third  person,  will  do ;  1  Saund.  PL 
&  Ev.  3  (5th  Am.  ed.).  The  plaintiff  may 
waive  an  affidavit;  5  Dowl.  &  L.  737;  Rich- 
mond v.  Tallmadge,  16  Johns.  (N.  Y.)  307. 
The  affidavit  must  be  coextensive  with  the 


plea ;  3  Nev.  &  M.  200,  and  leave  nothing  to 
be  collected  by  inference;  Say.  293.  It 
should  state  that  the  plea  is  true  in  sub- 
stance and  fact,  and  not  merely  that  the 
plea  is  a  true  plea;  3  Stra.  705;  Day  v.  Ham- 
burgh, 1  Browne  (Pa.)  77;  Rapp  v.  Elliot,  2 
Dall.  (ra.)  184,  1  L.  Ed.  341. 

Plea  in  abatement  on  account  of  non-join- 
der of  joint  promisors  need  not  be  verified 
by  oath,  National  Niantic  liank  v.  Express 
Co.,   10  R,  I.  343,  15  Atl.  763. 

Judgment  on  Pleas  in  Abatement.  If  is- 
sue be  joined  on  a  plea  in  abatement,  a 
judgment  for  the  plaintiff  upon  a  verdict  is 
final;  1  Str.  532;  Moore  v.  Morton,  1  Bibb 
(Ky.)  234;  McCartee  v.  Chambers,  6  Wend. 
(N.  Y.)  649,  22  Am.  Dec.  556 ;  Good  v.  Lehan, 
8  Cush.  (Mass.)  301 ;  Dodge  v.  Morse,  3  N.  H. 
232;  Haight  v.  Holley,  3  Wend.  (N.  Y.)  258; 
but  judgment  for  plaintiff  upon  a  demurrer 
to  a  plea  in  abatement  is  not  final,  but  mere- 
ly respondeat  ouster;  Ld.  Rayrn.  699 ;  Whit- 
ford  v.  Flanders,  14  N.  H.  371;  Lambert  v. 
Lagow,  1  Blackf.  (Ind.)  388.  After  judgment 
of  respondeat  ouster,  the  defendant  has  four 
days'  time  to  plead,  commencing  after  the 
judgment  has  been  signed ;  8  Bingh.  177. 
He  may  plead  again  in  abatement,  provided 
the  subject-matter  pleaded  be  not  of  the 
same  degree,  or  of  any  preceding  degree  or 
class  with  that  before  pleaded;  Com.  Dig. 
Abt  I,  3 ;  1  Saund.  PI.  &  Ev.  4  (5th  Am.  ed.) ; 
Tidd,  Pr.  641. 

If  the  plea  is  determined  in  favor  of  the 
defendant  either  upon  an  issue  of  law  or 
fact,  the  judgment  is  that  the  writ  or  bill  be 
quashed;  Yelv.  112;  Bac.  Abr.  Abt.  P;  Gould, 
PL  ch.  5,  §  159;  2  Saund.  211  (n.  3). 

See  Judgment. 

As  to  abatement  and  revival  of  actions,  the 
power  and  practice  of  United  States  courts 
are  governed  by  the  law  of  the  state  in 
which  action  is  pending  at  death;  Wilhite  v. 
Skeleton,  149  Fed.  67,  78  C.  C.  A.  635. 

ABATOR.  One  who  abates  or  destroys 
a  nuisance.  One  who,  having  no  right  of 
entry,  gets  possession  of  the  freehold  to  the 
prejudice  of  an  heir  or  devisee,  after  the 
time  when  the  ancestor  died,  and  before  the 
heir  or  devisee  enters.  Litt  §  397 ;  Perk. 
Conv.  §  383:  2  Prest.  Abs.  296,  300.  See  Ad. 
Ej.  43;    1  Washb.  R.  P.  225. 

ABATUDA.  Anything  diminished;  as 
moncta  abatuda;  which  is  money  clipped  or 
diminished  in  value.     Co  well. 

ABAVIA.    A  great-great-grandmother. 

ABA  VITA.     Used  for  abamita,  which  see. 

ABAVUNCULUS.  A  great-great-grand- 
mother's brother.     Calvinus,  Lex. 

ABA V US.  A  great-great-grandfather,  or 
fourth  male  ascendant. 

ABBACY.  The  office  of  an  abbot.  The 
dignity  of  the  office. 

ABBAT,  ABBOT.     A  spiritual  lord  or  gov- 


ABBAT,  ABBOT 


17 


ABBREVIATION 


ernor  having  the  rule  of  a  religious  house. 
Cunningham. 

ABBEY.    A  monastery  or  convent  for  the 
use   of  an  association   of  religious   per. 
having  an  abbot  or  abbess  to  preside  over 
them. 

ABBOT.  They  were  prelates  in  the  13th 
century  who  had  had  an  Immemorial  right  to 
sit  in  the  national  assembly.  Taylor,  Science 
of  Jurispr.  287. 

ABBREVIATION.  A  shortened  form  of  a 
word,  obtained  by  the  omission. of  one  or 
more  letters  or  syllables  from  the  middle  or 
end  of  the  word. 

The  abbreviations  In  common  use  In  modern 
times  consist  of  the  initial  letter  or  letters,  syllable 
or  syllables,  of  the  word.  Anciently,  also,  contract- 
ed forms  of  words,  obtained  by  the  omission  of 
letters  intermediate  between  the  initial  and  final 
letters  were  much  in  use.  These  latter  forms  are 
now  more  commonly  designated  by  the  term  con- 
tract on. 

Abbreviations  are  of  frequent  use  in  referring  to 
text-books,  reports,  etc.,  and  in  indicating  dates, 
but  should  be  very  sparingly  employed,  if  at  all,  in 
formal-  and  important  legal  documents.  See  4  C. 
&  P.  51 ;  9  Co.  48.  No  part  of  an  indictment  should 
contain  any  abbn  viations  except  in  cases  whi 
facsimile  of  a  written  instrument  is  necessary  to 
be  set  out.  1  East  ISO,  n.  The  variety  and  num- 
ber of  abbreviations  are  as  nearly  illimitable  as 
the  ingenuity  of  man  can  make  them ;  and  the 
advantages  arising  from  their  use  are,  to  a  great 
extent,  counterbalanced  by  the  ambiguity  and  un- 
certainty resulting  from  the  usually  inconsiderate 
selection  which  is  made. 

As  to  how  far  a  judicial  record  may  con- 
tain abbreviations  of  English  words  without 
invalidating  it,  see  Stein  v.  Meyers,  253  111. 
199,  97  N.  E.  297. 

The  following  list  is  believed  to  contain  all 
abbreviations  in  common  use.  Where  a 
shorter  and  a  longer  abbreviation  are  in 
common  use,  both  are  given. 

A.  Alabama  ; — American,  see  Am. ; — Anonymous  ; 
—Arkansas;— Abbott  (see  Abb.);— Annuals  (Louisi- 
ana) ;— Atlantic   Reporter. 

A,  a,  B,  6.    "A"  front,  "B"  back  of  a  leaf. 

A.  B.  Anonymous  Reports  at  end  of  Benloe's  Re- 
ports, commonly  called  New  Benloe. 

A.  B.  R.    American  Bankruptcy  Reports. 

A'B.  R.  J.  N.  S.  W.  A'Beckett's  Reserved  (Equi- 
ty)  Judgments,  New  South   Wales. 

A'B.  R.  J.  P.  P.  A'Beckett's  Reserved  Judgments, 
Port  Philip. 

A.  C.  Appellate  Court;— Case  on  Appeal;— Appeal 
Cases,  English  Chancery;  Law  Reports  Appeal 
Cases. 

A.  C. 
[1391]  A.  C.    English    Appeal    Cases;     Law    Re- 
ports, 3d  Scries,  1891. 

.1.  C.    Same    for  1892,    etc. 

A.  C.  C.  American  Corporation  Cases  (With- 
row's). 

A.  C.  R.    American  Criminal   Reports. 

A.  D.  American  Decisions;— Anno  Domini;  in  the 
year  of  our  Lord;— Appellate  Division,  New  York 
Supreme  Court. 

A.  E.  C.    American   Electrical   Cases. 

A.  G.    Attorney  General. 

A.  G.  Dec.    Attorney    General's    Decisions. 

A.  G.  Op.    Attorney  General's  Opinions. 

A.  Ins.  R.    American   Insolvency  Reports. 

A.  K.  Marsh.    A.  K.   Marshall's  Reports,  Kentucky. 

A.  L.  C.    American   Leading   Cases. 

A.  L.  J.    Albany  Law  Journal. 

Bouv.— 2 


A.  Moo.  A,  Moore's  Reports,  in  vol.  1  Bosanque* 
&  Puller. 

A.  M.  d  O.  Armstrong,  Macartney  &  Ogle's  Irish 
Nisi  Prlus  Reports. 

A.  N.  0.  Abbott's  New  Cases,  New  York;— Amer- 
ican Negligence  Cases. 

A.  N.  R.  American  Negligence  Reports,  Current 
Series. 

A.  P.  B.  or  Ashurst  MSS.  L.  I.  L.    Ashurst's  Pa- 
per-books ;    the  manuscript  paper-books  of  Ashurst. 
J.,    Buller,    J.,    Lawrence,    J.,    and    Dampier, 
Lincoln's  Inn   Library. 

A.  lc.  American  Reports;— Anno  Rcgni;  in  the 
year  of  the  reign;— Atlantic  Reporter;— Appeal  Re- 
ports,  Ontario. 

A.  R.  C.    American  Railway  Cases. 

A.  R.  R.    American  Railway  Reports. 

A.  R.  V.  R.  tl.  Anno  Regni  Victoria  Reglna  Vi- 
cesimo  Secundo. 

A.  Rep.  American  Reports;— Atlantic  Reporter 
(Commonly  cited  Atl.  or  A.). 

A.  8.  Acts  of  Sederunt,  Ordinances  of  the  Court 
of  Session,  Scotland. 

A.  S.  R.    American    State   Reports. 

A.  d  A.  Corp.    Angell   &   Ames  on   Corporations. 

A.  d  E.  Adolphus  &  Ellis's  English  King's  Bench 
Reports;— Admiralty  and  Ecclesiastical. 

A.  d  E.  Corp.  Ca.  American  and  English  Corpora- 
tion Cases. 

A.  d  E.  Encyc.  American  and  English  Encyclo- 
paedia of  Law. 

A.  d  E.  N.  S.  Adolphus  &  Ellis's  Reports,  New 
Series,  English  Queen's  Bench,  commonly  cited 
Q.  B. 

A.  d  E.  R.  R.  C.    American      &      English     Railroad 
Cases. 
A.  d  F.  Fixt.    Amos  &  Ferrard  on   Fixtures. 
A.dH.    Arnold     &      Hodges's     English      Queens 
Bench  Reports. 

A.dN.    Alcock    &    Napier's    Irish    King's    Bench 
Reports. 
Ab.    Abridgment. 

Ab.  Adm.    Abbott's  Admiralty   Reports. 
Ab.  App.  Dec.    Abbott's    New    York    Court    of   Ap- 
peals  Decisions. 

Ab.  Ci.  App.    Abbott's  New  York  Court  of  Appeal 
Decisions. 

Ab.  Eq.  Cos.  Equity  Cases  Abridged,  English 
Chancery. 

Ab.  N.  Y.  Ct.  App.    Abbott's    New    York    Court    of 
Appeals  Decisions. 
Ab.  N.  Y.  Dig.    Abbott's  New  York  Digest. 
Ab.  N.  Y.  Pr.      Abbott's      Practice     Reports,      New 
York. 

Ab.  N.  Y.  Pr.  N.  S.      Abbott's       Practice      Reports, 
New  Series,  New  York. 
Ab.  Nat.  Dig.    Abbott's   National    Digest 
Ab.  New  Cos.    Abbott's    New    Cases,    various   New 
New  York  courts. 
Ab.  PI.    Abbott's  Pleadings  under  the  Code. 
Ab.  Pr.    Abbott's   Practice  Reports,   New  York. 
Ab.  Pr.  N.  S.    Abbott's  Practice   Reports,   New   Se- 
ries, New  York. 
Ab.  Sh.    Abbott   (Lord  Tenterden)  on   Shipping. 
Ab.  U.  S.    Abbott's  Reports,   United    States   Circuit 
Court, 

Ab.U.S.Pr.    Abbott's  United  States  Courts  Prac- 
tice. 
Abb.    Abbott.     See   below. 

Abb.  Ad.  or  Abb.  Adm.  Abbott's  Admiralty  Re- 
ports. 

Abb.  App.  Dec.  Abbott's  New  York  Court  of  Ap- 
peals  Decisions. 

Abb.  Beech.  Tr.  Abbott's  Report  of  the  Beech,  r 
Trial. 

Abb.  C.  C.  Abbott's  Reports,  United  States  Circuit 
Court. 

Abb.  Ct.  App.  Abbotts  New  York  Court  of  Ap- 
peals Decisions. 

Abb.  Dec.    Abbott's    New    York    Court    of   App. 
Decisions. 
Abb.  Dig.    Abbott's  New  York  Digest. 
Abb.  Dig.  Corp.    Abbott's   Digest    Law  of   Corpora- 
tions. 
Abb.  Mo.  Ind.    Abbott's   Monthly   Index. 


ABBREVIATION 


18 


ABBREVIATION 


Abb.  N.  C.    Abbott's    New   Cases.   New   York. 

Abb.  N.  8.  Abbott's  Practice  Reports,  New  Se- 
ries. 

Abb.  N.  Y.  App.  Abbott's  New  York  Court  of  Ap- 
peals Decisions. 

Abb.  N.  Y.  Dig.    Abbott's  New  York  Digest 

Abb.  Nat.  Dig.    Abbott's   National    Digest. 

Abb.  Pr.  or  Abb.  Prac.  Abbott's  New  York  Prac- 
tice Reports. 

Abb.  Pr.  ,V.  S.  Abbott's  New  York  Practice  Re- 
ports, New  Series. 

Abb.  Ship.    Abbott  (Lord  Tenterden)  on   Shipping. 

Abb.  Tr.  Ev.    Abbott's  Trial  Evidence. 

Abb.  U.  8.  Abbott's  United  States  Circuit  Court 
Reports. 

Abb.  Y.  Bk.    Abbott's  Year  Book  of  Jurisprudence. 

Abbott.    Abbott's   Dictionary. 

Abdy's  R.  C.  P.    Abdy's  Roman  Civil  Procedure. 

A'Beck.  Judg.  Vict.  A'Beckett's  Reserved  Judg- 
ments of  Victoria. 

Abr.    Abridgment;— Abridged. 

Abr.  Case.  Crawford  &  Dix's  Abridged  Cases, 
Ireland. 

Abr.  Case.  Eq.    Equity    Cases    Abridged    (English). 

Abr.  Cas.  Eq.  or  Abr.  Eq.  Cos.  Equity  Cases  Abridg- 
ed, English  Chancery. 

Abs.    Absolute. 

Ace.    Accord  or  Agrees. 

Act.  Acton's  Reports,  Prize  Causes,  English  Privy 
Council. 

Act.  Can.    Monro's    Acta    Cancellarioe. 

Act.  Pr.  C.  Acton's  Reports,  Prize  Causes,  Eng- 
lish Privy  Council. 

Act.  Reg.    Acta   Regia. 

Ad.  Cas.  Sales.  Adams's  Cases  on  the  Law  of 
Sales. 

Ad.  Con.    Addison  on   Contracts. 

Ad.  E.    Adams  on  Ejectment. 

Ad.  Eq.    Adams's  Equity. 

Ad  fin.    Ad  finem,   at  or  near  the  end. 

Ad.  Jus.    Adam's    Justiciary   Reports    (Scotch). 

Ad.  Rom.  Ant.    Adams's   Roman   Antiquities. 

Ad.  Torts.    Addison  on  Torts. 

Ad.  &  E.  or  Ad.  &  Ell.  Adolphus  &  Ellis's  English 
King's  Bench  Reports. 

Ad.  &  Ell.  N.  S.  Adolphus  &  Ellis's  Reports,  New 
Series; — English  Queen's  Bench  (commonly  cited 
Q.B.). 

Adams.  Adams's  Reports,  vols.  41,  42  Maine; — Ad- 
ams's Reports,  vol.  1  New  Hampshire. 

Adams,  Eq.    Adams's  Equity. 

Adorns,  Rom.  Ant.    Adams,    Roman    Antiquities. 

Add.  Addison's  Reports,  Pennsylvania; — Addams's 
English  Ecclesiastical  Reports. 

Add.  Abr.  Addington's  Abridgment  of  the  Penal 
Statutes. 

Add.  Con.    Addison  on   Contracts. 

Add.  Eccl.  Addams's  Ecclesiastical  Reports,  Eng- 
lish. 

Add.  Pa.    Addison's    Reports,   Pennsylvania. 

Add.  Torts.    Addison  on  Torts. 

Addams.  Addams's  Ecclesiastical  Reports,  Eng- 
lish. 

Addis.    Addison's   Pennsylvania  Reports. 

Adj.    Adjudged,   Adjourned. 

Adjournal,  Books  of.  The  Records  of  the  Court  of 
Justiciary,  Scotland. 

Adm.    Admiralty. 

Adm.&Ecc.  Admiralty  and  Ecclesiastical; — Eng- 
lish Law  Reports,   Admiralty  and  Ecclesiastical. 

Admr.    Administrator. 

Admx.    Administratrix. 

Adol.  &  El.  Adolphus  &  Ellis's  Reports,  English 
King's   Bench. 

Adol.  &  El.  (N.  S.).  Adolphus  &  Ellis's  Reports, 
New  Series,  English  Queen's  Bench,  commonly  cited 
Q.  B. 

Adolph.  &  E.  Adolphus  &  Ellis's  Reports,  English 
King's  Bench. 

Adolph.  &  E.  N.  S.    Adolphus     &     Ellis's     Reports, 
New   Series,  English  Queen's  Bench,  commonly  cit- 
ed Q.  B. 
Ads.    Ad  sectam,   at  suit  of. 
Adv.    Advocate. 
Adye  C.  H.    Adye  on   Courts-Martial. 


Aelf.  C.    Canons  of  Aelfrlc. 

Agn.    Pat.    Agnew  on   Patents. 

Agn.  St.  of  Fr.    Agnew   on   the   Statute   of   Frauds- 

Agra  H.  C.    Agra   High   Court    Reports,   India. 

Aik.    Aikens's    Vermont   Reports. 

A  i kens  (Vt.).    Aikens's    Reports,    Vermont. 

Ainsio.  or  Ainsworth.    Ainsworth's  Lexicon. 

Al.  Aleyn's  Select  Cases,  English  King's  Bench; 
—Alabama ; — Allen. 

Al.  Tel.  Cas.  Allen's  Telegraph  Cases,  American 
and  English. 

Al.  d  Nap.  Alcock  &  Napier's  Reports,  Irish 
King's  Bench  and  Exchequer. 

Ala.    Alabama;— Alabama  Reports. 

Ala.  N.  S.    Alabama   Reports,  New  Series. 

Ala.  Sel.  Cas.  Alabama  Select  Cases,  by  Shep- 
herd, see  Alabama  Reports,  vols.  37,  38   and  39. 

Ala.  St.  Bar  Assn.  Alabama  State  Bar  Associa- 
tion. 

Alaska  Co.    Alaska  Codes,  Carter. 

Alb.  Arb.  Albert  Arbitration,  Lord  Cairns's  De- 
cisions. 

A  lb.  L.  J.  or  A  lb.  Law  Jour.    Albany    Law    Journal. 

Ale.  or  Ale.  Reg.  or  Ale.  Reg.  Cas.  Alcock's  Irish 
Registry  Cases. 

Ale.  &  N.  Alcock  &  Napier's  Reports,  Irish  King's 
Bench  and  Exchequer. 

Aid.    Alden's  Condensed  Reports,  Pennsylvania. 

Aid.  Hist.  Aldridge's  History  of  the  Courts  of 
Law. 

Aid.  Ind.    Alden's  Index  of  U.  S.  Reports. 

Aid.  &  Van  Hoes.  Dig.  Alden  &  Van  Hoesen's  Di- 
gest,  Laws  of   Mississippi. 

Aldr.  Cas.  Cont.    Aldred's   Cases  on  Contracts. 

Alex.  Cas.  Report  of  "Alexandra"  case,  by  Dud- 
ley. 

Alex.  Ch.  Pr.    Alexander's    Chancery   Practice. 

Alexander.  Alexander's  Reports,  vols.  66-72  Mis- 
sissippi. 

Aleyn.  Aleyn's  Select  Cases,  English  King's 
Bench. 

Alls.  Prin.  Scotch.  Law.  Alison's  Principles  of  the 
Criminal    Law   of    Scotland. 

All.    Allen's   Massachusetts   Reports. 

All.  N.  B.    Allen's  New  Brunswick   Reports. 

All.  Ser.    Allahabad    Series,   Indian   Law    Reports. 

All.  Sher.    Allen  on  Sheriffs. 

AM.  Tel.  Cas.    Allen's  Telegraph  Cases. 

All.  &  Mor.  Tr.    Allen  &  Morris's  Trial. 

Allen.  Allen's  Massachusetts  Reports; — Allen's 
Reports,  New  Brunswick; — Allen's  Reports,  Wash- 
ington. 

Allen  (N.  B.).  Allen's  Reports,  New  Brunswick 
Supreme  Court. 

Allen  Tel.  Cas.    Allen's  Telegraph  Cases. 

Alleyne  L.  D.  of  Mar.  Alleyne's  Legal  Degrees  of 
Marriage  Considered. 

Allin.  Allinson,  Pennsylvania  Superior  and  Dis- 
trict Court. 

Alison  Prac.  Alison's  Practice  of  the  Criminal 
Law   of    Scotland. 

Alison  Princ.    Alison's   Principles   of   ditto. 

Alln.  Part.    Allnat   on    Partition. 

Am.    America,  American,  or  Americana. 

Am.  Bank.  R.  or  Am.  B'kc'y  Rep.  American  Bank- 
ruptcy Reports. 

Am.  Bar  Asso.    American   Bar  Association. 

Am.  C.  L.  J.  American  Civil  Law  Journal,  New 
York. 

Am.  Cent.  Dig.  American  Digest  (Century  Edi- 
tion). 

Am.  Ch.  Dig.    American   Chancery   Digest. 

Am.  Corp.  Cas.  Withrow's  American  Corporation 
Cases. 

Am.  Cr.  Rep.    American  Criminal  Reports. 

Am.  Crim.  Rep.  American  Criminal  Reports,  by 
Hawley. 

Am.  Cr.  Tr.  American  Criminal  Trials.  Chand- 
ler's. 

Am.  Dec.    American  Decisions. 

Am.  Dig.    American  Digest. 

Am.  Dig.  Cent.  Ed.  American  Digest  (Century 
Edition). 

Am.  Dig.  Dec.  Ed.  or  Am.  Dig.  Decen.  Ed.  Ameri- 
can Digest  (Decennial  Edition). 


ABBREVIATION 


19 


ABBREVIATION 


4m.  El.  Ca.  or  Am.  Elec.  Ca.  American  Electrical 
I 

Am.  Ins.  Rep.    American    Insolvency   Reports. 

Am.  Insolv.  Rep.    American   Insolvency    Reports. 

Am.  Jour.  Pol.    American   Journal  of  Politics. 

Am.  Jour.  Soc.    American   Journal  of  Sociology. 

Am.  Jur.    American  Jurist,  Boston. 

Am.L.O.R.P.  Sbarswood  and  Budd's  Leading 
Cases  on  Real  Property. 

Am.  L.  Cas.  American  Leading  Cases  (Hare  & 
Wallace's). 

Am.  L.  Elect.    American  Law  of  Elections. 

Am.  L.  J.  American  Law  Journal  (Hall's),  Phila- 
delphia. 

Am.  L.J.  (0.).    American    Law   Journal,    Ohio. 

Am.  L.J.N.  S.  American  Law  Journal,  New  Se- 
ries, Philadelphia. 

Am.  L.  M.    American  Law  Magazine,  Philadelphia. 

Am.  L.  R.    An:,  rican    Law    Register,    Phihi 

Am.  L.  Rec.    American    Law    Record,    Cincinnati. 

Am.  L.  Reg.  if  Rev.  American  Law  Register  and 
Review,  Philadelphia. 

Am.  L.  Rep.  American  Law  Reporter,  Davenport, 
Iowa. 

Am.  L.  Rev.    American   Law   Review,   St.   Louis. 

Am.  L.  T.  American  Law  Times,  Washington, 
D.    C. 

Am.  L.  T.  Bank.  American  Law  Times  Bankrupt- 
cy  Reports. 

Am.  L.  T.  R.    American    Law    Times    Reports. 

Am.  L.  T.  R.  N.  8.  American  Law  Times  Reports, 
New  Series. 

Am.  Law  Jour.  American  Law  Journal  (Hall's) 
Philadelphia. 

Am.  Laic  Jour.  N.  S.  American  Law  Journal,  New 
Series,   Philadelphia. 

Am.  Law  May.  American  Law  Magazine,  Phila- 
delphia. 

Am.  Law  Rec.    American  Law   Record,  Cincinnati. 

Am.  Law  Reg.  American  Law  Register,  Phila- 
delphia. 

Am.  Law  Rep.  American  Law  Reporter,  Daven- 
port,  Iowa. 

Am.  Law  Rev.    American  Law   Review,    St.    Louis. 

Am.  Law  Times.  American  Law  Times,  Washing- 
ton, D.  C. 

Am.  Lawy.    American  Lawyer,  New  York  City. 

Am.  Lead.  Cas.  Hare  &  Wallace's  American 
Leading  Cases. 

Am.  Neg.  Ca.  or  Am.  Ncg.  Cas.  American  Negli- 
gence Cases. 

Am.  Neg.  Rep.    American   Negligence    Reports. 

Am.  PI.  Ass.    American    Pleader's    Assistant. 

Am.  Pr.  Rep.  American  Practice  Reports,  Wash- 
ington, D.  C. 

Am.  Prob.  or  Am.  Prob.  Rep.  American  Probate 
Reports. 

Am.  R.    American   Reports. 

Am.  R.  R.  Cas.  American  Railway  Cases  (Smith 
£  Bates'). 

Am.  R.  R.  Rep.  American  Railway  Reports,  New 
York. 

Am.  R.  R.  d  C.  Rep.  American  Railroad  and  Cor- 
poration  Reports. 

Am.  Rail.  Cas.  Smith  and  Bates's  American  Rail- 
way Cases. 

Am.  Rail.  R.    American  Railway  Reports. 

Am.  Rep.    American  Reports  (Selected  Cases). 

Am.  Ry.  Ca.    American   Railway  Cases. 

Am.  Ry.  Rep.    American    Railway   Reports. 

Am.  St.  P.    American   State  Papers. 

Am.  St.  Rep.    American   State   Reports. 

Am.  St.  Ry.  Dec.  American  Street  Railway  Deci- 
sions. 

Am.  Them.    American  Themis,   New  York. 

Am.  Tr.  M.  Cas.  Cox's  American  Trade  Mark 
Cases. 

Am.  d  Eng.  Corp.  Cas.  American  and  English  Cor- 
poration Cases. 

Am.  d  Eng.  Dec.  in  Eq.  American  and  English 
Decisions  in  Equity. 

Am.  d  Eng.  Encyc.  Law.  American  and  English 
Encyclopedia  of  Law. 

Am.  rf  Eng.  Pat.  Ca.  American  and  English  Pat- 
ent Cases. 


Am.  d  Eng.  Pat.  Cas.  American  and  English  Pat- 
ent Ca 

Am.  d  Eng.  R.  Caa.  American  and  English  Rail- 
road Ci 

Am.  d  Eng.  R.  R.  Ca.  American  and  English  Rail- 
road  C 

Ry.  Ca.    American    and    English    Rail- 
way Cases. 

<>r  Ambl.    Ambler's    English     Chancery    Re- 
• 

Amer.  American;— Amerman,  vols.  1U-U5  Penn- 
sylvania. 

Amer.  Jur.    American   Jurist. 

Amer.  Law.    American   Lawyer,  New  York. 

Amer.  Law  Reg.  (N.  8.).  American  Law  Regis- 
ter, New  Series. 

(O.8.).    American    Law    Register, 
ries. 

Amer.  Law  Rev.    American   Law  Rev; 

Amer.  d  Eng.  Enc.  Law.  American  &  English  En- 
cyclopaedia  of   Law. 

Ames.  Ames's  Reports,  vol.  4-7  Rhode  Island;— 
Ames's   Reports,  vol.  1  Minnesota. 

Ames  Ca3.  B.  d  N.  Ames's  Cases  on  Bills  and 
Notes. 

Ames  Cas.  Par.    Ames's  Cases  on   Partnership. 

Ames  Cas.  Part.    Ames's   Cases  on  Partnership. 

Ames  Cas.  PI.    Ames's  Cases  on  I 

Ames  Cas.  Sur.    Ames's   Cases  on   Suretyship. 

Ames  Cas.  Trusts.    Ames's  Cases  on  Trusts. 

Ames,  K.  d  B.  Ames,  Knowles  &  Bradley's  Re- 
ports, vol.  8  Rhode  Island. 

Ames  d  Sm.  Cas.  Torts.  Ames  &  Smith's  Cases  on 
Torts. 

Amos  Jur.    Amos's  Science   of  Jurisprudence. 

Amoa  d  F.  or  Amos  d  F.  Fixt.  Amos  and  Ftrrard 
on  Fixtures. 

An.    Anonymous. 

And.  Anderson's  Reports,  English  Common  Pleas 
and  Court  of  Wards;— Andrews's  Reports,  vols.  63-72 
Connecticut;— Andrews's  English  King's  Bench  Re- 
ports. 

And.  Ch.  Ward.    Anderson  on   Church  Wardens. 

And.  Com.    Anderson's   Ili-tory  of  Comm>  I 

Anders,  or  Anderson.  Anderson's  Reports,  English 
Common  Pleas  and  Court  of  \V.  t 

An  dr.  Andrews's  Reports,  English  King's  Bench. 
See  also  And. 

Andr.  Pr.    Andrews's   Precedents  of   Leases. 

Ang.    Angell's  Reports,   Rhode  Island  Reports. 

Ang.  Adv.  Enj.    Angell  on  Adverse  Enjoyment 

Ang.  Ass.    Angell  on  Assignments. 

Ang.  B.  T.    Angell    on    Bank    Tax. 

Ang.  Carr.    Angell   on   Carriers. 

Ang.  Corp.    Angell   and   Ames  on   Corporations. 

Ang.  High.    Angell   on   Highways. 

Ang.  Ins.    Angell   on  Insurance. 

Ang.  Lim.    Angell  on  Limitations. 

Ang.  Tide  Wat.  or  Ang.  Tide  Waters.  Angell  on 
Tide  Waters. 

Ang.  Water  C.  or  Ang.  Water  Courses.  Angell  on 
Water  Courses. 

Ang.  d  A.  Corp.    Angell  and  Ames  on  Corporations. 

Ang.  d  D.  High.    Angell   and  Durfee  on  Highways. 

Ang.  d  Dur.  (R.I.)  Angell  &  Durfee's  Rhode  Is- 
land Reports,  vol.  1. 

Ann.    Queen   Ann;     as   1   Ann.   c  7. 

Ann.  C.    Annals  of  Congress. 

Ann.  Cas.  American  &  English  Annotated  Cases; 
— New  York  Annotated  Cases. 

Ajin.  de  la  Pro.  Annales  de  la  Propriete  Industri- 
elle. 

Ann.  de  Leg.  Annuaire  de  Legislation  Estrangere, 
Paris. 

Ann.  Jud.    Annuaire  Judiclaire,  Paris. 

Ann.  Reg.    Annual   Register,    London. 

Ann.  Reg.  N.  S.    Annual     Register,      New     Series, 
London. 
Ann.  St.    Annotated    Statutes. 

Annaly.  Annaly's  Edition  of  Hardwicke's  Reports. 
English.  Sometimes  cited  Cos.  temp.  Hardw.,  Lee's 
Cas.  temp.  Hard.,  or  Rep.  temp.  Hard. 

Anne.    Queen   Anne    Uhus   "1   Anne,"    denotes   the 
first  year  of  the  reign  of  Queen  Anne). 
Annes.  Ins.    Annesly  on   Insurance. 


ABBREVIATION 


20 


ABBREVIATION 


Anon.    Anonymous. 

Ans.  Contr.  or  Anson,  Cont.    Anson     on     Contracts. 
Anst.  or  Anstr.    Anstruther's  Reports,  English  Ex- 
chequer. 

A  nth.  Anthon's  New  York  Nisi  Prlus  Reports;— 
Anthony's    Illinois  Digest. 

Anth.  Abr.    Anthon's   Abridgment   of    Blackstone's 
Commentaries. 
Anth.  111.  Dig.    Anthony's  Illinois  Digest 
Anth.  L.  S.    Anthon's  Law  Student. 
Anth.  N.  P.    Anthon's    New    York    Nisi    Prlus    Re- 
ports. 
Anth.  Prec.    Anthon's  Precedents. 
Anth.  Shep.        Anthon's      edition      of      Sheppard's 
Touchstone. 

Ap.  Justin.  Apud  Justlnianum,  or  Justinian's  In- 
stitutes. 

App.  Appeal;  —  Apposition;  —  Appendix;  —  Ap- 
pleton's  Reports,  vols.  19,  20  Maine. 

App.  Cas.  Appeal  Cases,  English  Law  Reports;— 
Appeal  Cases,  United  States;— Appeal  Cases  of  the 
different  States;— Appeal  Cases,  District  of  Colum- 
bia. 

[1891]  App.  Cas.  Law  Reports,  Appeal  Cases, 
from  1S91  onward. 

App.  Cas.  (D.  C).  Appeal  Cases,  District  of  Co- 
lumbia. 

App.  Cas.  Beng.  Sevestre  and  Marshall's  Bengal 
Reports,    India. 

App.  Cas.  Rep.  Bradwell's  Illinois  Appeal  Court 
Reports. 

App.  Ct.  Rep.    Bradwell's     Illinois     Appeal     Court 
Reports. 
App.  D.  C.    Appeal    Cases,    District    of    Columbia. 
App.  Div.    Appellate  Division,  New  York. 
App.  Ev.    Appleton  on   Evidence. 
App.  Jur.  Act  1876.    Appellate     Jurisdiction     Act, 
1876,   39  &  40   Vict.    c.   59. 
App.  N.  Z.    Appeal    Reports,    New    Zealand. 
App.  Rep.  Ont.    Appeal  Reports,  Ontario. 
Appe.  Bre.    Appendix  to  Ereese's  Reports. 
Appleton.    Appleton's  Reports,  vols.  19,  20  Maine. 
Appx.    Appendix. 
Ar.    Arrete. 

Ar.  Rep.    Argus  Reports,  Victoria. 
Arabin.    Decisions  of   Seargeant  Arabin. 
Arbuth.    Arbuthnot's   Select   Criminal   Cases,   Ma- 
dras. 
Arch.    Court  of  Arches,  England. 
Arch.  P.  L.  Cas.    Archbold's    Abridgment    of    Poor 
Law  Cases. 

Arch.  Sum.    Archbold's  Summary  of  Laws  of  Eng- 
land. 
Archb.  B.  L.    Archbold's   Bankrupt   Law. 
Archb.  C.  P.    Archbold's  Civil   Pleading. 
Archb.  Civil  PI.    Archbold's   Civil   Pleading. 
Archb.  Cr.  L.    Archbold's    Criminal    Law. 
Archb.  Cr:  P.    Archbold's    Criminal    Pleading. 
Archb.  Cr.  P.  by  Pom.    Archbold's   Criminal  Plead- 
ing, by  Pomeroy. 
Archb.  Crim.  PI.    Archbold's     Criminal     Pleading. 
Archb.  F.    Archbold's  Forms. 
Archb.  F.  I.    Archbold's  Forms  of  Indictment. 
Archb.  J.  P.    Archbold's   Justice  of  the   Peace. 
Archb.  L.  &  T.    Archbold's    Landlord    and    Tenant. 
Archb.  Landl.  d  Ten.      Archbold's     Landlord      and 
Tenant. 
Archb.  N.  P.    Archbold's  Nisi  Prius  Law. 
Archb.    New    Pr.   or   Archb.    N.    Prac.    Archbold's 
New  Practice. 
Archb.  Pr.    Archbold's  Practice. 
Archb.  Pr.  by  Ch.    Archbold's  Practice,   by   Chitty. 
Archb.  "Pr.  C.  P.       Archbold's     Practice,     Common 
Pleas. 

Archb.  Pr.  K.  B.        Archbold's      Practice,      King's 
Bench. 

Archb.  Sum.    Archbold's    Summary    of    the    Laws 
of  England. 
Archer.    Archer's  Reports,  Florida  Reports,  vol.  2. 
Arg.    Arguendo,  in  arguing,  In  the  course  of  rea- 
soning. 

Arg.  Fr.  Merc.  Law.    Argles     (Napoleon),     Treatise 
upon  French  Mercantile  Law,   etc. 

Arg.  Inst.    Institution   au  Droit   Frangais,    par  M. 
Argou. 


Arg.  Rep.    Reports    printed    In    Melbourne   Argus, 
Australia. 
Ariz.    Arizona; — Arizona   Reports. 
Ark.    Arkansas; —Arkansas      Reports;  —  Arkley'i 
Justiciary  Reports,  Scotland. 
Ark.  L.  J.    Arkansas  Law  Journal,  Fort  Smith. 
Ark.  Rev.  Sts.    Arkansas    Revised    Statutes. 
Arkl.  or  Arkley.      Arkley's       Justiciary       Reports, 
Scotland. 

Arms.  Br.  P.  Cas.  Armstrong's  Breach  of  Privi- 
lege  Cases,  New  York. 

Anns.  Con.  Elec.  Armstrong's  New  York  Contest- 
ed  Elections. 

Arms.  Elect.  Cas.  Armstrong's  Cases  of  Contested 
Elections,  New  York. 

Arms.  M.  &  0.  or  Arms.  Mac.  &  Og.     Armstrong,  Ma- 
cartney &  Ogle's  Irish   Nisi  Prius  Reports. 
Arms.  Tr.    Armstrong's    Limerick   Trials,    Ireland. 
Am.    Arnolds   English   Common   Pleas  Reports;— 
Arnot's  Criminal   Trials,  Scotland. 
Am.  El.  Cas.    Arnold's    Election    Cases,   English. 
Am.  Ins.    Arnould  on  Marine  Insurance. 
Am.  &  II.  or  Am.  &  Hod.    Arnold  &  Hodges's  Eng- 
lish Queen's  Bench  Reports. 

Am.  &  II-  B.  C.  Arnold  and  Hodges's  English  Bail 
Court   Reports. 

Am.  &  Hod.  B.  C.  Arnold  &  Hodges's  English  Bail 
Court  Reports. 

Am.  &  Hod.  Pr.  Cas.  Arnold  &  Hodges's  Practice 
Cases,   English. 

Arnold.    Arnold's    Common    Pleas    Reports,    Eng- 
lish. 
Arnot.    Arnot's  Criminal  Cases,  Scotland. 
Arnot  Cr.  C.    Arnot's  Criminal  Cases,   Scotland. 
Art.    Article. 

Artie.  Cleri.    Articles  of  the  clergy. 
Articuli  sup.  Chart.    Articles   upon   the  charters. 
As7ie.    Ashe's    Tables    to    the    Year    Books    (or   to 
Coke's  Reports;— or   to  Dyer's  Reports). 
Ashl.  Cas.  Cont.    Ashley's  Cases  on  Contracts. 
Ashm.    Ashmead's  Pennsylvania  Reports. 
Ashton.    Ashton's    Reports,   vols.   9-12   Opinions   of 
the   United   States   Attorneys  General. 

Ashurst  MS.  Ashurst's  Paper  Books,  Lincoln's 
Inn  Library;— Ashurst's  Manuscript  Reports,  print- 
ed in  vol.  2  Chitty. 

Aso  &  Man.  Inst.    Aso   and    Manuel's   Institutes   of 
the   Laws  of  Spain. 
Asp.    Aspinall,   English  Admiralty. 
Asp.  Cas.  or  Asp.  Rep.       English     Maritime      Law 
Cases,  new  series  by  Aspinall. 
Asp.  M.  C.    Aspinall's  Maritime  Cases. 
Asp.  Mar.  L.  Cas.    Aspinall's  Maritime  Law  Cases. 
Ass.    Book  of  Assizes;— Liber  Assissarium,  Part  5 
of  the  Year  Books. 
Ass.  de  Jerus  or  Ass.  Jerus.    Assizes   of   Jerusalem. 
Ast.  Ent.    Aston's   Entries. 

Atch.  Atcheson's  Reports,  Navigation  and  Trade, 
English. 

Ath.  Mar.  Set.  or  Ath.  Mar.  Sett.    Atherly    on    Mar- 
riage Settlements. 
Atk.    Atkyn's  English  Chancery  Reports. 
Atk.  Ch.  Pr.    Atkinson's  Chancery  Practice. 
Atk.  Con.    Atkinson  on  Conveyancing. 
Atk.  P.  T.    Atkyn's  Parliamentary  Tracts. 
Atk.  Sher.    Atkinson   on  Sheriffs. 
Atk.  Tit.  or  Atk.  M.  T.    Atkinson      on      Marketable 
Titles. 
Atl.    Atlantic    Reporter. 
Atl.  Mo.    Atlantic  Monthly. 
Atl.  R.  or  Atl.  Rep.    Atlantic   Reporter. 
Ats.    At  suit  of. 
Atty.    Attorney. 
Atty.  Gen.    Attorney-General. 

Atty.  Gen.  Op.  Attorney-Generals'  Opinions,  Unit- 
ed States. 

Atty.  Gen.  Op.  N.  Y.  Attorney-Generals'  Opinions, 
New  York. 

Atw.  or  Atwater.  Atwater's  Reports,  vol.  1  Min- 
nesota. 

Auch.  Auchinleck's  Manuscript  Cases,  Scotch 
Court  of  Session. 

Auct.  Reg.  &  L.  Chron.  Auction  Register  and  Law 
Chronicle. 

Aul.  Gel.  Noctes  Atticce.  Aulus  Gelli-is,  Noctes  At- 
tica. 


ABBREVIATION 


21 


ABBREVIATION 


Aus.Jur.    Australian    Jurist,  Melbourne. 

Aust.  Austin's  English  County  Court  Cases;— 
Australia. 

Aunt.  Jur.  or  Aust.  Juris.  Austin's  Province  of 
Jui  i  prudence. 

Aust.  Jur.  Abr.  Austin'3  Lectures  on  Jurispru- 
dence, abridged. 

Aust.L.T.    Australian    Law   Times. 

n  (Ceylon).    Austin's  Ceylon  Reports. 

Austin  C.  C.  or  Austin  C.  C.  It.  Austin's  English 
County  Court  Reports. 

Austr.  Jur.    Australian  Jurist,  Melbourne. 

Austr.  L.  T.    Australian    Law   Times,   Melbourne. 

Auth.  Authentlca,  In  the  authentic;  that  Is,  the 
Summary  of  some  of  the  Novels  in  the  Civil  Law 
i  I  in  the  i  '".i'-  u    :  r  such 

Av.  d  11.  B.  Law.  Avery  and  Hobb's  Bankrupt 
Law  of   th  ttes. 

Ayck.  Ch.  1'.    Ayckbourn's   Chancery  Forms. 

Ayck.  Ch.  I'r.    Ayckbourn's   Chancery   Practice. 

Ayl.  Pan.    See    Ayll 

Ayl.  Pand.     See   Ayliffe. 

Ayl.  Par.    See  Aylil't'e. 

Ayliffe.  Ayliffe's  Pandects;— Ay  11  He's  Parergon 
Juris  Canonici  Angelicani. 

Ayliffe  Parerg.     See  Ayliffe. 

Azuni  Mar.  Laio.    Azuni   on    Maritime    Law. 

B.  Bancus;  the  Common  Bench;  the  back  of  a 
leaf;    Book. 

B.B.    Bail   Bond;    Bayley  on  Bills. 

B.  Bar.    Bench   and   liar,   Chli 

B.  C.  Bail  Court; — Bankruptcy  Cases; — Bell's 
Commentaries  on  the  Laws  of  Scotland. 

B.C.C.  Bail  Court  Reports  (Saunders  &  Cole);— 
Bail  Court  Cases  (Lowndes  &  Maxwell) ;— Brown's 
Chancery  Cases. 

B.  Ch.    Barbour's    Chancery    Reports,    New    York. 

B.  C.  R.  or  B.  C.  Rep.  Saunders  &  Cole's  Bail 
Court  Reports,  English; — British  Columbia  Reports. 

B.  D.  d  O.  Blackham,  Dundas  &  Osborne's  Nisi 
Prius  Reports,  Ireland. 

B.  Ecc.  Law.    Burns's   Ecclesiastical   Law. 

B.  Just.     Burns's   Justice. 

B.  L.  R.    Bengal  Law   Reports. 

B.  L.  T.    Baltimore    Law    Transcript. 

B.  M.  Burrow's  Reports  tempore  Mansfield; — Ben 
Monroe's  Reports,  Kentucky;— Moore's  Reports,  Eng- 
lish. 

B.  Mon.    Ben  Monroe's  Reports,  Kentucky. 

B.  Moore.    Moore's  Reports,  English. 

B.  N.  C.  Bingham's  New  Cases,  English  Common 
Pleas;— Brooke's  New  Cases,  English  King's  Bench: 
— Busbee's  North  Carolina   Law   Reports. 

B.  N.  P.     Buller's  Nisi   Prius. 

B.  P.  B.  Buller's  Paper  Book,  Lincoln's  Inn  Li- 
brary.    See  A.  P.  B. 

B.  P.  C.    Brown's  Parliamentary  Cases. 

B.  P.  L.  Cas.    Bott's  Poor  Law  Cases. 

B.  P.  N.  R.  Bosanquet  &  Puller's  New  Reports, 
English  Common  Pleas. 

B.  P.  R.    Brown's  Parliamentary  Reports. 

B.  R.  American  Law  Times  Bankruptcy  Reports; 
— Bancus  Regis;  the  King's  Bench; — Bankruptcy 
Reports;— Bankruptcy  Register,  New  York;— Na- 
tional   Bankruptcy   Register   Reports. 

B.  R.  Act.    Booth's    Real    Action. 

B.  Reg.    Bankruptcy    Register,    New   York. 

B.  R.  H.  Cases  in  King's  Bench,  temp.  Hard- 
• 

B.  S.    Upper   Bench. 

B.  Tr.    Bishop's    Trial. 

B.  W.  C.  C.  Butterworth's  Workmen's  Compen- 
sation Cases  (Br.  &  Col.). 

B.  d  A.  Barnewall  &.  Adolphus's  English  King's 
Bench  Reports; — Barnewall  &  Alderson's  English 
King's  Bench  Reports;— Baron  &  Arnold's  English 
Election  Cases;— Baron  &  Austin's  English  Election 
Cases; — Banning  &  Arden's  Patent  Cases. 

B.  d  Ad.  or  Adol.  Barnewall  &  Adolphus's  English 
King's  Bench  Reports. 

B.  d  Aid.  Barnewall  &  Alderson's  English  King's 
Bench   Reports. 

B.  &  Am.    Barron  &  Arnold's   Election   Cases. 

B.  d  Aust.  Barron  and  Austin's  Election  Cases, 
English. 

B.  d  B.    Broderip    &    Bingham's    English    Common 


Pleas  Reports  ;— Ball  &  Eeatty'a  Irish  Chancery  Re- 
ports;—Bowler  &  Bowers,  vols.  2,  t  United  Statev 
Comptroller's  Decisions. 

B.  d  Bar.    The  Bench  and  Bar,   Chicago. 

B.  d  C.  Barnewall  &  Cresswell's  English  King's 
Bench  Reports. 

B.  d  D.    Benloe  &   Dallson,   English. 

B.  d  F.  Broderip  &  Fremantle's  English  Ecclesi- 
astical  Reports. 

B.  d  11.  Blatchford  &  Howland's  United  States 
Di;  met  Court  Reports. 

B.  d  H.  Dig.    Bennett    &     Heard's    Massachusetts 

B.  d  H.  Lead.  Cas.  Bennett  &  Heard's  Leading 
Cases  on  Criminal  Law. 

B.  d  I.    Bankruptcy  and  Insolvency  Cases. 

B.  d  L.  Browning  &  Lushington's  Reports,  Eng- 
lish  Admiralty. 

'..  Prec.    Bullen     &     Leake's     Precedents     of 
Pleading. 

B.  d  M.  or  B.  &  Macn.  Browne  &  Macnamara's  Re- 
ports, English. 

B.  d  P.  Bosanquet  &  Puller's  English  Common 
Pleas  Reports. 

B.  d  I'.  K.  Ii.  Bosanquet  &  Puller's  New  Reports, 
English. 

B.  d  8.  Best  &  Smith's  English  Queen's  Bench 
Reports. 

B.  d  V.  Beling  &  Vanderstraaten's  Reports,  Cey- 
lon. 

Ba.  d  Be.    Ball  &  Beatty's  Irish  Chancery  Reports. 

Bab.  Auc.    Babington  on  Auctions. 

Bab.  Set-off.    Babington   on   Set-off. 

Bac.  Abr.     Bacon's  Abridgment. 

Bac.  Aph.  or  Bac.  Aphorisms.  Bacon's  (Sir  Fran- 
cis)  Aphorisms. 

Bac.  Comp.  Arb.    Bacon's  Complete  Arbitration. 

Bac.  Dig.    Bacon's  Georgia  Digest, 

Bac.  El.    Bacon's    Elements  of   the   Common    Law. 

Bac.  Gov.    Bacon  on  Government. 

Bac.  Ir.    Bacon    (Sir  Francis),    Law  Tracts. 

Bac.  Law  Tr.    Bacon's    Law    Tracts. 

Bac.  Lease.    Bacon  on  Leases  and  Terms  of  Years. 

Bac.  Lib.  Reg.    Bacon's   Liber   Regis,  vel    Th 
rus  Rerum  Ecclesiasticarum. 

Bac.  M.  or  Bar.  Max.    Bacon's    Maxims. 

Bac.  Read.  Uses.  Bacon  (Sir  Francis),  Reading 
upon  the  Statute  of  Uses. 

Bac.    St.    Uses  or    Bac.    U.    Bacon    (Sir    F: 
Reading  upon  the  Statute  of  Uses. 

Bac.  Works.    Bacon's    (Sir    Francis),    Works. 

Bach.    Bach's    Reports,   vols.   19-21   Montana. 

Bach.  Man.  Bache's  Manual  of  a  Pennsylvania 
Justice  of  the  Peace. 

Bacon.  Bacon's  Abridgment;— Bacon's  Aphorisms; 
— Bacon's  Complete  Arbitrator; — Bacon's  Elements 
of  the  Common  Law; — Bacon  on  Government; — Ba- 
con's Law  Tracts;— Bacon  on  Leases  and  Terms  of 
Years;— Bacon's   Maxims;— Bacon  on  Uses. 

Bag.  C.  Pr.    Bagley's  Chamber    Practice. 

Bage.  Const.  Bagehot  on  the  English  Constitu- 
tion. 

Bagl.    Bagley's    Reports,   vols.    16-19   California. 

Bagl.dH.  Bagley  &  Harmen's  Reports,  Cali- 
fornia. 

Bail.     Bailey's   Law  Reports,   South   Carolina. 

Bail  Ct.  Cas.  Lowndes  &  Maxwell's  English  Ball 
Court  Cases. 

Bail  Ct.  Rep.  Saunders  &  Cole's  English  Bail 
Court  Reports;— Lowndes  &  Maxwell's  English  Bail 
Court  Cases. 

Bail.  Dig.     Bailey's   North  Carolina  V 

Bail.  Eg.  Bailey's  Equity  Reports,  South  Caro- 
lina. 

Bailey.    Bailey's   Law    Reports,    South    Carolina. 

Bailey  Ch.  or  Bailey  Eq.  Bailey's  Equity  Reports, 
South  Carolina. 

Baill.  Dig.    Baillie's   Digest  of  Mohammedan  Law. 
or  Bainb.   Mines.    Bainbridge    on 
and   Minerals. 

Bale.  Bur.  .g  to  Burials. 

Bak.  Corp.    Baker  on  Corporations. 

Baker,  Quar.     Baker's    Law  of  Quarantine. 

Bald.  Baldwin's  United  States  Circuit  Court  Re- 
ports ;— Baldus  U'  n  on  the  Code) ;— Bald- 
asseroni  (on  Maritime  i 


ABBREVIATION 


22 


ABBREVIATION 


Bald.  App.  11  Pet.  Baldwin's  Appendix  to  11  Pe- 
ters. 

Bald.  C.  C.  Baldwin's  United  States  Circuit  Court 
Reports. 

Bald.  Con.  or  Bald.  C.  V.  Baldwin  on  the  Consti- 
tution. 

Baldw.  Dig.    Baldwin's    Connecticut   Digest. 

Balf.    Balfour's  Practice  of  the  Law  of  Scotland. 

Ball  Cas.  Tort.     Ball's   Cases   on   Torts. 

Ball.  Lim.    Ballantine   on   Limitations. 

Ball  &  B.  Ball  &  Beatty's  Reports,  Irish  Chan- 
cery. 

Bait.  L.  Tr.    Baltimore    Law   Transcript. 

Banc.  Sup.    Bancus  Superior,  or  Upper  Bench. 

Bank,  and  Ins.  R.  Bankruptcy  and  Insolvency  Re- 
ports,  English. 

Bank.  Ct.  Rep.  Bankrupt  Court  Reports,  New 
York;— The  American  Law  Times  Bankruptcy  Re- 
ports are  sometimes  thus  cited. 

Bank.  I.  or  Bank  Inst.  Bankter's  Institutes  of 
Scottish    Law. 

Bank.  Reg.  National  Bankruptcy  Register,  New 
York. 

Bank.  Rep.  American  Law  Times  Bankruptcy  Re- 
ports. 

Bank.  &  Ins.  or  Bank,  d  Ins.  R.  Bankruptcy  and 
Insolvency   Reports,    English. 

Banker's  Law  J.     Banker's    Law   Journal. 

Banker's  Mag.    Banker's  Magazine,  New  York. 

Banker's  Mag.  (Lon.).  Banker's  Magazine,  Lon- 
don. 

Banks.    Banks'  Reports,  vols.  1-5  Kansas. 

Bann.  Bannister's  Reports,  English  Common 
Pleas. 

Bann.  Br.  Bannister's  edition  of  O.  Bridgman's 
English  Common   Pleas  Reports. 

Bann.  Lim.    Banning  on  Limitation  of  Action. 

Bann.  d  A.  or  Bann.  &  A.  Pat.  Ca.  Banning  and 
Arden's   Patent  Cases. 

Bar.  Barnardiston's  English  King's  Bench  Re- 
ports;—Barnardiston's  Chancery;— Bar  Reports  in 
all  the  Courts,  English; — Barbour's  Supreme  Court 
Reports,  New  York; — Barrows's  Reports,  vol.  18 
Rhode  Island. 

Bar.  Ch.  or  Chy.  Barnardiston's  English  Chan- 
cery Reports.  / 

Bar  Ex.  Jour.    Bar  Examination   Journal,   London. 

Bar.  Mag.    Barrington's   Magna   Charta. 

Bar.  N.  Barnes's  Notes,  English  Common  Pleas 
Reports. 

Bar.  Obs.  St.  Barrington's  Observations  upon  the 
Statutes  from  Magna  Charta  to  21  James  I. 

Bar.  &  Ad.  Barnewall  &  Adolphus's  English 
King's   Bench   Reports. 

Bar.  &  Al.  Barnewall  &  Alderson's  English  King's 
Bench   Reports. 

Bar.  &  Am.  Barron  &  Arnold's  English  Election 
Cases. 

Bar.  &  Aust.  or  Au.  Barron  &  Austin's  English 
Election  Cases. 

Bar.  &  Cr.  Barnewall  &  Cresswell's  English 
King's  Bench  Reports. 

Barb.  Barbour's  Supreme  Court  Reports,  New 
York; — Barber's  Reports,  vols.  14-24  Arkansas. 

Barb.  Abs.  Barbour's  Abstracts  of  Chancellor's 
Decisions,  New  York. 

Barb.  App.  Dig.    Barber's  Digest,  New  York. 

Barb.  Ark.    Barber's  Reports,  vols.  14-24  Arkansas. 

Barb.  Ch.  Barbour's  Chancery  Reports,  New 
York. 

Barb.  Ch.  Pr.  Barbour's  Chancery  Practice  (Text 
Book). 

Barb.  Cr.  P.    Barbour's   Criminal    Pleadings. 

Barb.  Dig.    Barber's   Digest   of  Kentucky. 

Barb.  Grot.    Grotius  on  War  and  Peace,  Notes  by 
Barbeyrac. 
Barb,  on  Set-off.    Barbour  on  Set-off. 
Barb.  Puff.    Puffendorf's  Law  of  Nature  and   Na- 
tions, Notes  by  Barbeyrac. 

Barb.  S.  C.  Barbour's  Supreme  Court  Reports, 
New  York. 

Barbe.  or  Barber.      Barber's     Reports,     Arkansas. 
See  Barb.   Ark. 
Bare.  Dig.     Barclay's  Missouri  Digest. 
Barl.  Elect.  Cas.      Bartlett's    Congressional    Elec- 
tion Cases. 


Barn.  Barnardiston's  English  King's  Bench  Re- 
ports';—Barnes's  English  Common  Pleas  Reports;— 
Barnfleld's  Reports,  vols.  19-20,   Rhode  Island. 

Barn.  Ch.  Barnardiston's  Chancery  Reports,  Eng- 
lish. 

Barn.  No.  Barnes's  Note  of  Cases,  English  Com- 
mon  Pleas. 

Barn.  Sh.    Barnes's  Sheriff. 

£  A.     Barnewall  &  Alderson's  English  King's 
Bench    Reports. 

Barn.  &  Ad.  or  Barn.  &  Adol.  Barnewall  &  Adol- 
phus'   English  King's  Bench  Reports. 

Barn.  &  Aid.  Barnewall  &  Alderson's  English 
King's   Bench  Reports. 

Barn.  &  C.  or  Barn.  &  Cr.  or  Barn.  &  Cress. 
Barnewall  &  Cresswell's  English  King's  Bench  Re- 
ports. 

Barnard.  Ch.    Barnardiston's     Chancery     Reports. 

Barnard.  K.  B.  Barnardiston's  King's  Bench  Re- 
ports. 

Barnes.    Barnes's  Practice  Cases,   English. 

Barnes  N.  C.  Barnes's  Notes  of  Cases  in  Common 
Pleas. 

Barnet.  Barnet's  Reports,  vols.  27-29  English 
Central  Criminal   Courts  Reports. 

.  &  S.    Barnfield   and    Stiness's   Reports,   vol. 
20.     Rhode  Island. 

Barnw.  Dig.    Barnwall's  Digest  of  the  Year  Books. 

Barr.  Barr's  Reports,  vols.  1-10  Pennsylvania 
State; — Barrows's  Reports,  vol.  18  Rhode  Island;— 
Barr  Reports,  in  all  the  courts,  English. 

Barr.  Ob.  St.  or  Barr.  St.  Barrington's  Observa- 
tions upon  the  Statutes  from  Magna  Charta  to  21 
James  I. 

Barr.  Ten.    Barry  on  Tenures. 

Barr.  &  Am.  Barron  &  Arnold's  Election  Cases, 
English. 

Barr.  &  Aus.  Barron  &  Austin's  Election  Cases, 
English. 

Barring.  Obs.  St.  or  Barring.  St.  Barrington's  Ob- 
servations upon  the  Statutes  from  Magna  Charta 
to  21  James  I. 

Barron  Mir.    Barron's   Mirror   of   Parliament. 

Barrows.    Barrows's  Reports,  vol.  18  Rhode  Island. 

Barry  Ch.  Jur.    Barry's  Chancery  Jurisdiction. 

Barry  Conv.    Barry  on   Conveyancing. 

Bart.  Conv.    Barton's   Elements    of    Conveyancing. 

Bart.  El.  Cas.  Bartlett's  Congressional  Election 
Cases. 

Bart.  Eq.    Barton's   Suit  in  Equity. 

Bart.  Prec.    Barton's  Precedents  of  Conveyancing. 

Bat.  Dig.    Battle's  Digest,  North  Carolina. 

Bat.  Sp.  Per.    Batten  on    Specific   Performance. 

Batem.  Ag.    Bateman   on  Agency. 

Batem.  Auct.    Bateman  on  the  Law  of  Auctions. 

Batem.  Comm.  L.    Bateman's   Commercial   Law. 

Batem.  Const.  L.    Bateman's     Constitutional     Law. 

Batem.  Ex.  L.    Bateman's  Excise   Laws. 

Bates  Ch.    Bates's   Chancery   Reports,   Delaware. 

Bates  Dig.    Bates's  Digest,  Ohio. 

Batt.  or  Batty.  Batty's  Irish  King's  Bench  Re- 
ports. 

Baum.  Baum  on  Rectors,  Church  Wardens,  and 
Vestrymen. 

Bax.  or  Baxt.  Baxter's  Reports,  vols.  60-68  Ten- 
nessee. 

Bay.  Bay's  South  Carolina  Reports;— Bay's  Re- 
ports,  vols.   1,   2,   and  5-8   Missouri. 

Bay    (Mo.).    Bay's  Reports,   Missouri. 

Bayl.  Bill.    Bayley  on   Bills. 

Bayl.  Ch.  Pr.    Bayley's    Chancery    Practice. 

Bea.  C.  E.    Beame's   Costs   in  Equity. 

Bea.  Eq.  PI.    Beame's    Equity   Pleading. 

Bea.  Ne  Exeat.    Beame  on  the  Writ  of  Ne  Exeat. 

Bea.  Ord.    Beame's  Orders   in  Chancery. 

Bea.  PI.  Eq.    Beame's   Pleas   in    Equity. 

Beach.  Rec.    Beach  on   the  Law  of  Receivers. 

Beas.    Beasley's  Reports,   New   Jersey  Equity. 

Beat,  or  Beatt.  or  Beatty.  Beatty's  Irish  Chancery 
Reports. 

Beaum.  B.  of  S.    Beaumont  on  Bills  of   Sale. 

Beaum.  Ins.    Beaumont    on    Insurance. 
Beav.    Beavan's  Chancery  Reports,  English  Rolls 
Court. 

Beav.  R.  &  C.  Cas.  English  Railway  and  Canal 
Cases,  by  Beavan  and  others. 


ABBREVIATION 


23 


ABBREVIATION 


Beav.  dc  Wal.  Ry.  Cas.  Beavan  &  Walford's  Rail- 
way  and   Canal   Cases,   En 

Beaw.  or  Beaw.  Lex  Merc.  Beawes's  Lex  Merca- 
torla. 

Beawes.    Beawes's  Lex  Mercatorla. 

Becc.  Cr.     Beccaria    on    Crimes    and    Punishments. 

Beck.  Bock's  Reports,  vols.  12-18  Colorado;  also 
vol.  1  Colorado  Court  of  Appeals. 

Beck,  Med.  Jur.  or  Beck's  Med.  Jur.  Beck's  Medi- 
cal Jurisprudence. 

Bedell.     Bedell's   Reports,   vols.   163-191   New  York. 

Bee.    Bee's   United  States  District  Court   Reports. 
Bee  Adm.     Bee's  Admiralty.    An  Appendix  to  Bee's 
District  Court  Reports. 

Bee  C.  C.  R.  Bee's  Crown  Cases  Reserved,  Eng- 
lish. 

Beebe  Cit.    Beebe's  Ohio  Citations. 
Bel.    Bellewe's     English     King's     Bench     Reports 
t'litp.     Richard     II  ;— Bellasis's    Bombay    R  | 
Beling's   Ceylon   R  ..  Winger's  Reports,   vols. 

4-8  Oregon. 

Beling.    Beling's  Ceylon   Reports. 

Belinij  d  Van.  (Ceylon).  Beling  &  Vander  Straa- 
len's  Ceylon  Reports. 

Bell.  Bell's  Dictionary  and  Digest  of  the  Laws  of 
Scotland; — Bell's  English  Crown  Cases  Reserved; — 
Bell's  Scotch  Appeal  Cases;— Bell's  Scotch  Session 
Cases;— Bell's  Calcutta  Reports,  India;— Bellewe's 
English  King's  Bench  Report  Richard  II;— 

Brooke's    New    Cases,   by    Bellewe;— Bellinger's    Re- 
ports, vols.  4-8  Oregon; — Bellasis's  Bombay  Reports. 

Bell  Ap.  Ca.  or  Bell  Ap.  Cas.  or  Bell  App.  Cas. 
Bell's  Scotch   Appeals. 

Bell  Cas.    Bell's   Cases,    Scotch    Court   of    Session. 

Bell.  Cas.  t.  H.  VIII.  Brooke's  New  Cases  (col- 
lected by  Bellewe). 

Bell.  Cas.  t.  R.  II.  Bellewe's  English  King's  Bench 
Reports  (time  of  Richard  II). 

BellC.  C.  Bell's  English  Crown  Cases  Reserved; 
— Bellasis's  Civil  Cases,  Bombay  ;— Bellasis's  Crim- 
inal  Cases,   Bombay. 

Bell.  C.  Cas.  Bellasis's  Civil  Cases,  Bombay;  Bel- 
lasis's Criminal   Cases,    Bombay. 

BellC.H.C.    Bell's  Reports,  Calcutta  High  Court. 

Bell  Com.  or  Bell  Comm.  Bell's  Commentaries  on 
the  Laws  of  Scotland. 

Bell  Cr.  C.  Bell's  English  Crown  Cases;— Beller's 
Criminal   Cases,   Bombay. 

Bell  C.  T.    Bell   on    Completing    Titles. 

Bell.  Del.  U.  L.  Beller's  Delineation  of  Universal 
Law. 

Bell,  Diet.  Bell's  Dictionary  and  Digest  of  the 
Laws   of    Scotland. 

Bell  Diet.  Dec.  Bell's  Dictionary  of  Decisions, 
Court  of  Session,  Scotland. 

Bell  El.  L.    Bell's  Election   Law  of  Scotland. 

Bell  fol.  Bell's  folio  Reports,  Scotch  Court  of 
Session. 

Bell  H.  C.  or  Bell  H.  C.  Cal.  Bell's  Reports,  High 
Court  of  Calcutta. 

Bell  H.  L.  or  Bell,  H.  L.  Sc.  Bell's  House  of  Lord's 
Cases,  Scotch  Appeals. 

Bell  H.  £  W.    Bell  on  Husband   and  Wife. 

Bell  lllus.    Bell's  Illustration  of  Principles. 

Bell  (In.).     Bells  Reports,  India. 

Bell  L.    Bell  on  Leases. 

Bi  11  Med.  L.  J.     Bell's   Medico   Legal   Journal. 

Bell  Notes.  Bell's  Supplemental  Notes  to  Hume 
on  Crimes. 

Bell  Oct.  or  8vo.  Bell's  octavo  Reports,  Scotch 
Court   of   Session. 

Bell.  (Or.).     Bellinger's  Reports,  Oregon. 

Bell  P.  C.  Bell's  Cases  in  Parliament,  Scotch  Ap- 
peals. 

Bell  Prin.  Bell's  Principles  of  the  Law  of  Scot- 
land. 

Bell  Put.  Mar.  Bell's  Putative  Marriage  Cases, 
Scotland. 

Bell  S.     Bell  on  Sales. 

Bell  Sc.  App.  Bell's  Appeals  to  House  of  Lords 
from    Scotland. 

Bell  Sc.  Dig.    Bell's  Scottish  Digest. 

Bell  Ses.  Cas.  or  Bell  Sess.  Cas.  Bell's  Cases  in  the 
Scotch   Court   of    Session. 

Bell  Styles.     Bell's  System  of  the  Forms  of  Deeds. 


Bell  T.D.     Bell  on  the  Testing  of  Deeds. 

Bellas.  Bellasis's  Criminal  (or  Civil)  Cases,  Bom- 
bay. 

Bellewe.    Bellewe's  English  King's  Bench  Reports. 
IM    Cas.       Bellewe's  up.     Henry 

VIII.;     Brooke's  New  Cases;    Petit  Brooke. 

Bellewe  t.  U.  VIII.  Brooke's  New  Cases  (collected 
by  Bellewe). 

ger.    Bellinger's  Reports,  vols.  4-8  Or 

Bellingh.  Tr.     Report  of  the  Bellingham  T: 

Belt  Bro.  Belt's  edition  of  Brown's  Chancery  Re- 
ports. 

Belt  Sup.  or  Belt  Sup.  Vcs.  Belt's  Supplement  to 
Vesey   Senior's  English  Chancery  Reports. 

Bilt  Ves.  Sen.  Belt's  edition  of  Vesey  Senior's 
English  Chancery 

Benedict's  United  States  District  Court  Re- 
ports. 

Ben.  Adm.     Benedict's  Admiralty   Practice. 

Ben.  Av.     Benecke  on  Average. 

Ben.  F.  I.  Cas.    Bennett's  Fire  Insurance  Cases. 

Ben.  Ins.  Cas.     Bennett's  Insurance  Cases. 

Ben.  Just.     Benedict  on  Justices  of  the  Peace. 

Ben  Men.     Ben    Monroe's   Reports,    K<  ntucky. 

Ben.  d  Dal.  Benloe  &  Dalison's  English  Common 
Pleas   Reports. 

Ben.  &  H.  L.  C.  Bennett  &  Heard's  Leading  Crim- 
inal  Cases. 

Ben.  dc  S.  Dig.  Benjamin  &  Slidell's  Louisiana  Di- 
gest 

Bench  dc  B.     Bench  and   Bar  (periodical),  Chicago. 

Bendl.  or  Bendloe.  Bendloe  (see  Bcnl.)  ;— Bend- 
loe's  or  New  Benloe's  Reports,  English  Common 
Pleas,   Edition  of  1661. 

Bened.  Benedict's  United  States  District  Court 
Reports. 

Ct.  M.     Benet  on   Military   Law  and  Courts 
Martial. 

Beng.  L.  R.     Bengal  Law  Reports,  India. 

Beng.  S.D.  or  Beng.  S.  D.  A.  Bengal  Sudder  De- 
wany  Adawlut  Reports,  India. 

Ben].     Benjamin.     New  York  Annotated  Cases. 

Ben},  Chalm.  Bills  dc  N.  Benjamin's  Chalmer's 
Bills  and  Notes. 

Benj.  Sales.     Benjamin  on  Sales. 

Benl.  Benloe's  or  Bendloe's  English  King's  Bench 
Reports  ;     Benloe's  English  Common  Pleas   Reports. 

Benl.  in  Ashe.    Benloe  at  the  end  of  Ashe's  Tables. 

Benl.  in  Keil.  Benloe  or  Bendloe  In  Keihvay's  Re- 
ports. 

Benl.  New.  Benloe's  Reports,  English  Common 
Pleas,  Ed.  of  1661 ;— Benloe's  Reports,  English  King's 
Bench. 

Bi  al.  Old.  Benloe's  Reports,  English  Common 
Pleas,  of  Benloe  &  Dalison,  Ed.  of  1689. 

Benl.  dc  Dal.  Benloe  &  Dalison's  Common  Pleas 
Reports. 

Benn.  Cal.     Bennett's  Reports,  vol.  1  California. 

Benn.  (Dak.).     Bennett's  Dakota  Reports. 

Benn.  Diss.  Bennett's  Dissertation  on  the  Pro- 
ceedings in  the  Master's  Office  in  the  Court  of 
Chancery  of  England,  sometimes  cited  Benn.  Prac. 

Benn.  F.  I.  Cas.  or  Benn.  Fire  Ins.  Cas.  Bennett's 
Fire  Insurance  Cases. 

Benn.  (Mo.).     Bennett's   Reports,   Missouri. 

Benn.  Prac.     See  Benn.  Diss. 

Benn.  dc  H.  Cr.  Cas.  Bennett  &  Heard's  Leading 
Criminal   Cases. 

Benn.  dc  H.  Dig.  Bennett  &  Heard's  Massachusetts 
Digest. 

Benne.     Reporter  of  vol.  7,  Modern  Reports. 

Bennett.  Bennett's  Reports,  vol.  1  California; — 
Bennett's  Reports,  vol.  1  Dakota; — Beuuutt's  Re- 
ports, vols.   16-21   Missouri. 

Bennett  M.     See  H. 

Bent.     Bentley's   Reports,   Irish   Chancery. 

Benth.  Ev  or  Benth.  Jud.  Ev.  Bentbam  on  Ration- 
ale of  Judicial  Evidence. 

Benth.  Leg.     Bentham  on  Theory  of  Legislation. 

Bentl.  Atty.-Gen.  Bentley's  Reports,  vols.  13-19 
Attorneys-General's  Opinions. 

Beor.     Queensland   Law   Reports. 

Ber.    Berton's  New  Brunswick  Reports. 

Bern.     Bernard's  Church   Cases,    Ireland. 


ABBREVIATION 


24 


ABBREVIATION 


Berry.  Berry's  Reports,  vols.  1-28  Missouri  Court 
of  Appeals. 

Bert.    Berton's  Reports,  New  Brunswick. 

Bcsson  Prec.    Besson's  New  Jersey  Precedents. 
Ev.     Best  on  Evidence. 

Best  Pres.     Best  on  Presumptions. 

Best  &  S.  or  Best  &  Sm.  Best  &  Smith's  English 
Queen's  Bench  Reports. 

Betts  Adm.  Pr.    Betts's  Admiralty  Practice. 

Bett's  Dec.  Blatchford  and  Howland's  United 
States  District  Court  Reports ;— Olcott's  United 
States  District   Court  Reports. 

Bev.  (Ceylon).     Beven's  Ceylon  Reports. 

Bev.  Horn.     Bevill  on  Honu 

Bev.  Pat.     Bevill's  Patent  Cases,  English. 

Bev.&M.     Bevin    &    Mill's    Reports,    Ceylon. 

Beven.    Beven's  Ceylon  Reports. 

Bibb.    Bibb's  Reports,  Kentucky. 

Bick.  or  Bick.  &  H.  or  Bick.  &  Hawl.  Bicknell  & 
Hav.-ley's  Reports,  vols.  10-20  Nevada. 

Bick.  (In.).     Bieknell's   Reports,    India. 

Bick.  &  H.  or  Bick.  £  Hawl.  (Nev.).  Bicknell  & 
Hawley's  Nevada  Reports. 

Biddle  Retro.  Leg.  Biddle  on  Retrospective  Leg- 
islation. 

Big.     Bignell's  Reports,  India. 

J3i<7.  Bills  &  N.     Bigelow  on  Bills  and  Notes. 

Big.  Cas.  Bigelow's  Cases,  William  I.  to  Rich- 
ard  I. 

Big.  Eq.     Bigelow  on   Equity. 

Big.  Estop.     Bigelow   on    Estoppel. 

Big.  Frauds.     Bigelow  on  Frauds. 

Big.  Jarm.  Wills.  Bigelow's  Edition  of  Jarman  on 
Wills. 

Big.  Lead.  Cas.     Bigelow's  Leading  Cases  on  Torts. 

Big.  L.  I.  Cas.  or  Big-  L.  &  A.  Ins.  Cas.  Bigelow's 
Life  and  Accident  Insurance   Cases. 

Big.  Ov.  Cas.  or  Big.  Over-ruled  Cas.  Bigelow's 
Over-ruled   Cases. 

Bin.  Plac.  or  Big.  Placita.  Bigelow's  Placita  An- 
glo-Normannica. 

Bigelow,  Estop.    Bigelow  on  Estoppel. 

Bigg  Cr.  L.     Bigg's  Criminal  Law. 

Bign.     Bignell's  Indian  Reports. 

Bilb.  Ord.     Ordinances  of  Bilboa. 

Bill.  Aw.    Billing  on  the  Law  of  Awards. 

Bin.     Binney's  Pennsylvania  Reports. 

Bin.  Dig.     Binmore's  Digest,  Michigan. 

Bing.    Bingham's  Reports,  English  Common  Pleas. 

Bing.  Des.     Bingham  on  Descent. 

Bing.  Inf.     Bingham  on  Infancy. 

Bing.  Judg.  Bingham  on  Judgments  and  Execu- 
tions. 

Bing.  L.  &  T.     Bingham  on   Landlord   and   Tenant. 

Bing.  N.  C.  Bingham's  New  Cases,  English  Com- 
mon Pleas. 

Bing.  &  Colv.  Rents.  Bingham  &  Colvin  on  Rents, 
etc. 

Binn.     Binney's  Pennsylvania  Reports. 

Binn  Jus.  Binn's  Pennsylvania  Justice. 

Bird  Conv.     Bird  on   Conveyancing. 

Bird  L.  &  T.    Bird  on  Landlord  and  Tenant. 

Bird  Sol.  Pr.  Bird's  Solution  of  Precedents  of  Set- 
tlements. 

Birds.  St.     Birdseye's  Statutes,  New  York. 

Biret  de  I'Abs.  Traite  de  l'Absence  et  de  ses  effets, 
par  M.  Biret. 

Biret,  Vocab.  Biret,  Vocabulaire  des  Cinq  Codes, 
ou  definitions  simplifies  des  termes  de  droit  et  de 
jurisprudence   exprimes  dan   ces  codes. 

Bis.  Bissell's  United  States  Circuit  Court  Re- 
ports. 

Bish.  Contr.     Bishop  on  Contracts. 

Bish.  Cr.  L.  or  Bish.  Cr.  Law.  Bishop  on  Criminal 
Law.  ' 

Bish.  Crim.  Proc.  or  Bish.  Cr.  Proc.  Bishop  on 
Criminal   Procedure. 

Bish.  Mar.  &  D.  or  Bish.  Mar.  &  Div.  Bishop  on 
Marriage  and  Divorce. 

Bish.  Mar.  Woyn.     Bishop  on  Married  Women. 

Bish.  St.  Cr.  or  Bish.  St.  Crimes.  Bishop  on  Statu- 
tory  Crimes. 

Bishop  Dig.     Bishop's  Digest,  Montana. 

Bisp.  Eg.  or  Bisph.  Eq.     Bispham's  Equity. 


Blss.  or  Bi8.  Bissell's  United  States  Circuit  Court 
Reports. 

Biss.  Est.  or  Biss.  Life  Est.  BIssett  on  Estates  for 
Life. 

Biss.  Part.     Bissett  on  Partnership. 

Bitt.  or  Bitt.  Chamb.  Rep.  Bittleson'a  Chamber 
Reports,  England. 

Bitt.  Pr.  Cas.     Bittleston's  English  Practice  Cases. 

Bitt.  W.  &  P.  Bittleson,  Wise  &  Parnell's  Reports, 
vols.  2,  3  New  Practice  Cases. 

Bfc.  Black's  United  States  Supreme  Court  Re- 
ports. 

Bk.  Judg.     Book  of  Judgments  by  Townsend. 

Bl.  Black's  United  States  Supreme  Court  Re- 
ports ;— Blatchford's  United  States  Circuit  Court 
Reports  ;— Blackford's  Indiana  Reports  ;— Henry 
Blackstone's  English  Common  Pleas  Reports ;— W. 
Blackstone's  English  King's  Bench  Reports  ;— Black- 
stone. 

Bl.  C.  C.  Blatchford's  United  States  Circuit  Court 
Reports. 

Bl.  Com.  or  Bl.  Comm.    Blackstone's  Commentaries. 

Bl.  D.    Blount's  Law  Dictionary. 

Bl.  Diet.     Black's  Dictionary. 

Bl.  D.  &  O.  Blackham,  Dundas  &  Osborne's  Irish 
Nisi  Prius  Reports. 

Bl.  H.  Henry  Blackstone's  English  Common  Pleas 
Reports. 

Bl.  Judgm.    Black  on  Judgments. 

Bl.  Law  Tracts.    Blackstone's  Law  Tracts. 

Bl.  L.  D.    Blount's   Law   Dictionary. 

Bl.  L.  T.    Blackstone's   Law  Tracts. 

Bl.  Pr.  Ca.  or  Bl.  Prize  or  Bl.  Pr.  Cas.  Blatchford's 
Prize  Cases. 

Bl.  R.  or  Bl.  W.  Sir  William  Blackstone's  English 
King's    Bench   Reports. 

Bl.  &  H.  Blatchford  &  Howland's  United  States 
District  Court  Reports;— Blake  &  Hedges's  Reports, 
vols.  2-3  Montana. 

Bl.  &  How.  Blatchford  &  Howland's  Admiralty 
Reports,  U.  S.  Dist.   Court,  Southern  Dist.  of  N.   Y. 

Bl.  &  W.  Mines.  Blanchard  &  Weeks's  Leading 
Cases  on  Mines. 

Bla.  Ch.    Bland's   Maryland   Chancery   Reports. 

Bla.  Com.    Blackstone's    Commentaries. 

Bla.  H.  Henry  Blackstone's  English  Common 
Pleas   Reports. 

Bla.  R.  or  Bla.  W.  Sir  William  Blackstone's  Re- 
ports English  King's  Bench. 

Black.  Black's  United  States  Supreme  Court  Re- 
ports;— Black's  Reports,  vols.  30-53  Indiana;— H. 
Blackstone's  English  Common  Pleas  Reports;— W. 
Blackstone's  English  King's  Bench  Reports;— Black- 
ford's Indiana  Reports. 

Black.  Cond.  Rep.  Blackwell's  Condensed  Illinois 
Reports. 

Black,  Const.  Law.    Black   on    Constitutional    Law. 

Black,  Const.  Prohib.  Black's  Constitutional  Pro- 
hibitions. 

Black.  D.  &  O.  Blackham,  Dundas  &  Osborne's 
Irish   Nisi    Prius   Reports. 

Black.  H.  Henry  Blackstone's  English  Common 
Pleas   Reports. 

Black.  (Ind.).  Black's  Reports,  Indiana  Reports, 
vols.   30-53. 

Black,  Interp.  Laws.  Black  on  Interpretation  of 
Laws. 

Black,  Intox.  Liq.    Black  on   Intoxicating   Liquors. 

Black,  Judgm.    Black   on  Judgments. 

Black.  Jus.    Blackerby's  Justices'  Cases. 

Black.  R.  Black's  United  States  Supreme  Court 
Reports;— W.  Blackstone's  English  King's  Bench 
Reports.     See  Black. 

Black.  S.    Blackburn  on  Sales. 

Black  Ship.  Ca.  Black's  Decisions  In  Shipping 
Cases. 

Black,  Tax  Titles  or  Black  T.  T  Black  on  Tax  Ti- 
tles. 

Black.  W.  W.  Blackstone's  English  King's  Bench 
Reports. 

Blackf.    Blackford's  Reports,   Indiana. 

Blackst.  Com.    Blackstone's  Commentaries. 

Blackst.  R.    Wm.    Blackstone's    Reports,    English. 

Blackw.  Cond.  Blackwell'a  Condensed  Reports, 
Illinois, 


ABBREVIATION 


25 


ABBREVIATION 


Blake's     Chancery     Practice,     New 


Blak.  Ch.  Pr 
York. 

Blake.    Blake's  Reports,  vol.  1  Montana. 

a-  H.    Blake  and  Hedges's  Reports,  vols.  2-3 
Montana. 

Blan.  Annu.    Blaney  on  Life  Annuities. 

Blan.  Lim.    Blansbard   on    Limitations. 

.  d  \V.  L.  C.    Blanchard    &     Week's    Leading 
Cases  on  Mines,  etc. 

Bland  or  Bland's  Ch.  Bland's  Maryland  Chancery 
Reports. 

Blatchf.  Blatchford's  United  States  Circuit  Court 
Reports— United  States  Appeals. 

Blatchf.  Pr.  Ca.  or  Blatchf.  Pr.  Cas.  Blatchford's 
Prize   Cases. 

Blatchf.  d  H.  Blatchford  &  Howland's  United 
States  District  Court  Reports. 

Bleck.  or  Bleckley.  Bleckley's  Reports,  vols.  34, 
35  Georgia. 

Bli.  or  Bligh.  Bllgh's  Reports,  English  House  of 
Lords. 

Bli.  N.  S.  or  Bligh  N.  S.  Bllgh's  Reports,  New  Se- 
ries,  English  House  of  Lords. 

Bliss.    Delaware   County   Reports,    Pennsylvania. 

Bliss  L.  Ins.     Bliss   on    Life   Insurance. 

Bliss  N.  Y.  Co.    Bliss's  New  York  Code. 

Bloom.  Man.  or  Bloom.  Neg.  Can.  or  Bloomf.  Manu. 
Cos.  or  Bloomf.  N.  Cas.  BloomQeld's  Manumission 
(or  Negro)  Cases,  New  Jersey. 

Blount.     Blount's    Law    Dictionary. 

Blount  Tr.    Blount's  Impeachment  Trial. 

Boh.  Dec.    Bohun's  Declarations. 

BoTi.  Eng.  L.    Bohun's    English    Lawyer. 

Boh.  Priv.  Lon.    Bohun's  Privilegia  Lon   dlnl. 

Boil.  Code  N.    Boileux's  Code  NapolSon. 

Bomb.  II.  Ct.  or  Bomb.  H.  Ct.  Rep.  Bombay  High 
Court   Reports. 

Bomb.  L.  R.    Bombay    Law   Reporter. 

Bomb.  Sel.  Cas.    Bombay   Select  Cases. 

Bomb.  Ser.    Bombay    Series   Indian    Law   Reports. 

Bond.    Bond's   United    States  Circuit   Reports. 

Bone  Prec.    Bone's  Precedents  on  Conveyancing. 

Bonney  Ins.    Bonney  on  Insurance. 

Books  S.    Books  of  Sederunt. 

Boor,  or  Booraem.    Booraem's  Reports,   California. 

Boote  Ch.  Pr.    Boote's  Chancery  Practice. 

Boote  S.  or  Boote,  Suit  at  Law.    Boote's  Suit  at  Law. 

Booth  Act.  or  Booth  R.  A.  or  Booth,  Real  Act. 
Booth  on  Real  Actions. 

Boothley  Ind.  Off.    Boothley  on  Indictable  Oflences. 

Bo.  R.  Act.    Booth  on  Real  Actions. 

Borr.    Borradaile's  Reports,  Bombay. 

Borth.    Borthwick  on  Libel  and  Slander. 

Bos.  Bosworth's  New  York  Superior  Court  Re- 
ports. 

Bos.  d  P.  or  Bos.  d  P.  N.  R.  or  Bos.  d  Pul.  or  Bos. 
d  Pul.  N.  R.  Bosanquet  &  Puller's  New  Reports, 
English  Common  Pleas. 

Bost.  Law  Rep.    Boston  Law  Reporter. 

Bost.  Pol.  Rep.    Boston  Police  Court  Reports. 

Bosw.  Boswell's  Reports,  Scotch  Court  of  Ses- 
elon;— Bosworth's  New  York  Superior  Court  Reports. 

Bosw.  (N.  Y.J.     Bosworth's   New   York   City    Supe- 
rior  Court    Reports,   vols.   14-23. 
Bott's  Poor  Laws. 
Cas.    Bott's  Poor  Law  Cases. 
Const.    Const's    Edition    of    Bott's    Poor 


Bott's     Poor     Law 


Bott  P.  L. 

Bott  P.  L, 

Bott  P.  L. 
Law  Cases. 

Bott  Set.  Cas.  or  Bott  Sett.  Cos 
(Settlement)   Cases,   English. 

Bouch.  Ins.  Dr.  Mar.    Boucher,  Institutes  ou  Droit 
Maritime. 

Boulay  Paty  Dr.  Com.    Cours    de    Droit    Commer- 
cial Maritime,  par  P.  S.  Boulay  Paty. 

Bould.    Bouldln's   Reports,   vol.   119    Alabama. 

Bouln.  or  Boulnois.    Boulnois's    Reports,    Bengal. 

Bourke.    Bourke's   Reports,   Calcutta    High   Court 

Bourke  P.  P.    Bourke's   Parliamentary   Precedents. 

Bousq.  Diet,  de  Dr.      Bousquet,      Dlctlonnaire      de 
Droit. 

Bout.  Man.    Boutwell's    Manuel    of    the    Tax    Sys- 
tem of  the  U.  S. 

Bouv.  or  Bouv.  L.  D.    Bouvier's    Law    Dictionary. 

Bouv.  Inst.     Bouvier's  Institutes  of  American  Law. 

Bouv.  Inst.  Th.    Institutiones    Theologicse,    auctore 
J.  Bouvier. 


Bouvier.    Bouvier's  Law  Dictionary. 

Bov.  Pat.  Ca.    Bovills  Patent  I 

Boio.  Bowler  &  Bowers,  vols.  2,  3,  United  States 
Comptroller's  Decisions. 

Buu.cn,  Pol.  Leon.    Bowen's    Political    Economy. 

Bowy.  C.  L.    Bowyer's  Modern   Civil    Law. 

Bowy.  Com.  or  Buuy.  P.  L.  Bowyer'a  Commenta- 
ries on  Universal  Public  Law. 

Bowyer,  Mod.  Civil  Law.  Bowyer's  Modern  Civil 
Law. 

Boyce  Pr.    Boyce's   Practice   in  the   U.    8.   Courts 

Boyd  A  dm.    Boyd's  Admiralty  Law. 

Boyd  Sh.     Boyd's   Merchant   Shipping  Laws. 

Boyle  Char.    Boyle  on  Char. 

Br.  Bracton  or  Bracton  de  Lcgibus  et  Con3uetu- 
dinibus  Anglice ;— Bradford  ;— Bradwell;— Brayton;— 
Breese;  —  Brevard;  —  Brewster;  —  Bridgman;  — 
Brightly;  —  British;  —  Brltton;  —  Brockenbrough; 
—  Brooke;  —  Broom;  —  Brown;  —  Brownlow;  — 
Bruce.    See  below,  especially  under  Bro. 

Br.  Abr.    Brooke's   Abridgment. 

Br.  Brev.Jud.    Brownlow's    Brevia   Judicalia. 

Br.  C.  C.  British  (or  English)  Crown  Cases 
(American  reprint);— Brown's  Chancery  Cases,  Eng- 
land. 

Br.  Ch.  C.     Brown's   Chancery  Cases,   English. 

Br.  Cr.  Ca.    British    (or  English   Crown   Cases). 

Br.  Fed.  Dig.    Brightly's   Federal   Digest 

Br.  N.  C.  Brooke's  New  Cases,  English  King's 
Bench. 

Br.  P.  C.    Brown's    English    Parliamentary    Cases. 

Br.  Reg.    Braithwaite's    Register. 

Br.  Sup.  Brown's  Supplement  to  Morrison's  Dic- 
tionary, Sessions  Cases,  Scotland. 

Br.  Syn.  Brown's  Synopsis  of  Decisions,  Scotch 
Court  of  Session. 

Br.  dB.  Broderlp  &  Bingham,  English  Common 
Pleas. 

Br.  d  F.  Ecc.  or  Br.  d  Fr.  Broderlck  &  Freeman- 
tie's  Ecclesiastical  Cases,  English. 

Br.  d  Gold.  Brownlow  &  Goldesborough's  English 
Common  Pleas  Reports. 

Br.  d  L.  or  Br.  d  Lush.  Brownlow  &  Lushington's 
English  Admiralty  Reports. 

Br.dR.    Brown  &   Rader's  Missouri  Repo: 

Brae,  or  Bract,  or  Bracton.  Bracton  de  Legibus  et 
Consuetudinibus  Angliae. 

Brack.  L.  Mis.    Brackenbridge's     Law     Miscellany. 

Brack.  Trust.    Brackenbridge  on   Trusts. 

Brad.  Bradford's  Surrogate  Reports,  New  York;— 
Bradford's  Iowa  Reports;— Cradwell's  Illinois  Ap- 
peal Reports;— Bradley's  Reports,  Rhode  Island;— 
Brady's  History  of  the  Succession  of  the  Crown  of 
England. 

Bradby  Dist.    Bradby  on  Distresses. 

Bradf.  Bradford's  New  York  Surrogate  Reports; 
—Bradford's  Reports,  Iowa. 

Bradf.  (Iowa).    Bradford's   Reports,   Iowa. 

Bradf.  Sur.  or  Bradf.  Surr.  Bradford's  Surrogate 
Court  Reports,  New  York. 

Bradl.  (R.  I.).    Bradley's    Rhode    Island    Reports. 

Bradl.  P.  B.    Bradley's  Point  Book. 

Bradw.  Bradwell's  Reports,  Illinois  Appellate 
Courts. 

Brail;/  Ind.    Brady's    Index,    Arkansas    Reports. 

Braithw.  Pr.  Braithwaite's  Record  and  Writ 
Practice. 

Brame.    Brame's   Reports,   vols.    66-72   Mississippi. 

Branch.    Branch's  Reports,  Florida  Reports,  vol.  I. 

Branch  Max.    Branch's    Maxims. 

Branch  Pr.  or  Branch,  Princ.  Branch's  Princlpia 
Legis  et  ^Equitatls. 

Brand.  Brandenburg's  Reports,  vol.  21,  Opinions 
Attorneys-General. 

Brand.  F.  Attachm.  or  Brand.  For.  Attachm.  Bran- 
don   on  Foreign  Attachment 

Brande.    Brande's   Dictionary  of   Science. 

Brandt  Div.     Brandt  on   Divorce   Causes. 

Brandt  Sur.  O.  Brandt  on  Suretyship  and  Guar- 
anty. 

Brans.  Dig.    Branson's  Digest  of  Bombay  Reports. 

Brant.     Brantly's    Reports,    vols.   80-116   Maryland. 

Brayt.    Brayton's   Reports,   Vermont. 

86.    Breese's   Reports,  vol.   1' Illinois. 

Brett  Ca.  Eq.     Brett's   Cases  in   Modern  Equity. 

Brev.    Brevard's  Reports,  South  Carolina. 


ABBREVIATION 


26 


ABBREVIATION 


Brev.  Dig.    Brevard's  Digest. 

Brev.  Ju.    Brevia  Judicialia    (Judicial   Writs). 

Brev.  Sel.    Brevia  Selecta,  or  Choice  Writs. 

Brew.    Brewer's  Reports,  vols.  19-26  Maryland. 

Brew,  or  Brews,  or  Brewst.  Brewster's  Reports, 
Pennsylvania. 

Brew.  (Md.).    Brewer's  Reports,  Maryland. 

Brewst.    Brewster's    Pennsylvania    Reports. 

Brice  Pub.  Wor.  Brice's  Law  Relating  to  Public 
Worship. 

Brice  U.  V.    Brice's  Ultra  Vires. 

Brick.  Dig.    Brickell's    Digest,   Alabama. 

Bridg.  J.  Bridgmore's  Reports,  English  Common 
Pleas. 

Bridg.  Conv.    Bridgman  on  Conveyancing. 

Bridg.  Dig.  Ind.    Bridgman's    Digested    Index. 

Bridg.  J.  Sir  J.  Bridgman's  English  Common 
Pleas    Reports. 

Bridg.  Leg.  Bib.    Bridgman's    Legal    Bibliography. 

Bridg.  O.  Sir  Orlando  Bridgman's  English  Com- 
mon   Pleas   Reports — (sometimes   cited  as   Carter). 

Bridg.  Refl.  Bridgman's  Reflections  on  the  Study 
of  the  Law. 

Bridg.  Thes.  Jur.    Bridgman   Thesaurus    Juridicus. 

Bright.  Brightly's  Nisi  Prius  Reports,  Pennsyl- 
vania. 

Bright.  C.    Brightly   on    Costs. 

Bright.  Dig.  Brightly's  Digest,  New  York;— 
Brightly's  Digest,  Pennsylvania;— Brightly's  Digest, 
United    States. 

Bright.  Elec.  Cas.  or  Bright.  Elect.  Cas.  Brightly's 
Leading   Election   Cases. 

Bright.  Eq.    Brightly's   Equity  Jurisprudence. 

Bright.  Fed.  Dig.    Brightly's   Federal   Digest. 

Bright  H.  d  W.    Bright  on  Husband   and  Wife. 

Bright.  N.  P.  Brightly's  Nisi  Prius  Reports,  Penn- 
sylvania. 

Bright.  (Pa.).  Brightly's  Nisi  Prius  Reports, 
Pennsylvania. 

Bright.  Purd.  or  Brightly's  Purd.  Dig.  Brightly's 
Edition  of  Purdon's  Digest  of  Laws  of  Pennsyl- 
vania. 

Bright.  T.  &  H.  Pr.  Brightly's  Edition  of  Troubat 
&  Haly's  Practice. 

Bright.  V.  S.  Dig.    Brightly's  United  States  Digest. 

Brisb.  or  Brisbin  (Minn.).  Brisbin's  Minnesota  Re- 
ports. 

Brissonius.  De  verborum  qua?  ad  jus  civile  per- 
tinent slgnificatione. 

Brit.    Britton's  Ancient  Pleas  of  the  Crown. 

Brit.  Col.  S.  C.  British  Columbia  Supreme  Court 
Reports. 

Brit.  Cr.  Cas.    British    (or   English)    Crown   Cases. 

Brit.  Quar.  Rev.    British    Quarterly    Review. 

Britt.    Britton  on  Ancient  Pleading. 

Bro.  See,  also,  Brown  and  Browne.  Browne's 
Pennsylvania  Reports; — Brown's  Michigan  Nisi  Pri- 
us Reports; — Brown's  English  Chancery  Reports; — 
Brown's  Parliamentary  Cases; — Brown's  Reports, 
vols.  53-65  Mississippi; — Brown's  Reports,  vols.  80- 
136  Missouri. 

Bro.  A.  d  C.  L.  Browne's  Admiralty  and  Civil 
Law. 

Bro.  A.  &  R.  Brown's  United  States  District  Court 
Reports    (Admiralty  and  Revenue  Cases). 

Bro.  Abr.    Brooke's  Abridgments. 

Bro.  Abr.  in  Eq.  Browne's  New  Abridgment  of 
Cases  in  Equity. 

Bro.  Adm.  Brown's  United  States  Admiralty  Re- 
ports. 

Bro.  Car.    Browne  on  Carriers. 

Bro.  C.  C.  Brown's  English  Chancery  Cases,  or 
Reports. 

Bro.  Ch.  or  Bro.  Ch.  Cas.  or  Bro.  Ch.  R.  Brown's 
Chancery  Cases,  English. 

Bro.  Civ.  Law.    Browne's  Civil  Law. 

Bro.  Co.  Act.    Browne  on  the  Companies  Act. 

Bro.  Com.    Brown's  Commentaries. 

Bro.  Div.  Pr.    Browne's  Divorce  Court  Practice. 
Bro.  Ecc.    Brooke's    Six    Judgments    in    Ecclesias- 
tical Cases   (English). 
Bro.  Ent.    Browne's   Book  of   Entries. 
Bro.  Insan.    Browne's     Medical    Jurisprudence    of 
Insanity. 

Bro.  Leg.  Max.  or  Bro.  Max.  Broom's  Legal  Max- 
ims. 


Bro.  M.  N.    Brown's   Methodus  Novissima. 

Bro.  M.  d  D.    Browning  on  Marriage  and  Divorce. 

Bro.  N.  C.  Brooke's  New  Cases,  English  King's 
Bench. 

Bro.  N.  P.  Brown's  Michigan  Nisi  Prius  Reports; 
— Brown's  Nisi  Prius  Cases,  English. 

Bro.  N.  P.  Cas.    Browne's     National     Bank     Cases. 

Bro.  N.  P.  (Mich.).  Brown's  Nisi  Prius  Cases, 
Michigan. 

Bro.  Of.  Not.  Brooke  on  the  Office  of  a  Notary  in 
England. 

Bro.  P.  C.    Brown's   English  Parliamentary  Cases. 

Bro.  (Pa.).    Browne's    Pennsylvania   Reports. 

Bro.  Read.  Brooke's  Reading  on  the  Statute  of 
Limitations. 

Bro.  R.  P.  L.  Brown's  Limitation  as  to  Real  Prop- 
erty. 

Bro.  Sales.    Brown  on  Sales. 

Bro.  St.  Fr.    Browne  on  the  Statute  of  Frauds. 

Bro.  Stair.  Brodie's  Notes  and  Supplement  to 
Stair's   Institutions   of  the   Laws  of   Scotland. 

Bro.  Supp.  Brown's  Supplement  to  Morrison's 
Dictionary   of  the   Court  of   Session,  Scotland. 

Bro.  Syn.  Brown's  Synopsis  of  the  Decisions  of 
the  Scotch  Court  of   Session. 

Bro.  T.  M.    Browne    on    Trademarks. 

Bro.  V.  M.    Brown's  Vade   Mecum. 

Bro.  &  F.  or  Bro.  d  Fr.  Brodrick  &  Freemantle's 
Ecclesiastical   Cases. 

Bro.  &  G.  Brownlow  &  Goldesborough's  English 
Common  Pleas  Reports. 

Bro.  &  Lush.  Browning  &  Lushington's  English 
Admiralty  Reports. 

Brock,  or  Brock.  C.  C.  or  Brock.  Marsh.  Brocken- 
brough's  Reports  of  Marshall's  Decisions,  United 
States    Circuit   Court. 

Brock.  Cas.    Brockenbrough's    Virginia    Cases. 

Brock.  &  H.  or  Brock.  &  Hoi.  Brockenbrough  & 
Holmes's  Reports,  Virginia  Cases,  vol.  1. 

Brod.  Stair.  Brodie's  Notes  and  Supplement  to 
Stair's  Institutes  of  the  Laws  of  Scotland. 

Brod.  d  B.  or  Brod.  &  Bing.  Broderip  &  Bingham's 
English  Common  Pleas  Reports. 

Brod.  &  F.  or  Brod.  d  Fr.  Brodrick  &  Freemantle's 
Ecclesiastical  Cases. 

Brooke  or  Brooke  (Petit).  Brooke's  New  Cases, 
English  King's  Bench. 

Brooke  Abr.    Brooke's  Abridgment. 

Brooke  Ecc.  Brooke's  Ecclesiastical  Reports,  Eng- 
lish. 

Brooke  Eccl.  Judg.  Brooke's  Six  Ecclesiastical 
Judgments. 

Brooke  Lim.  Brooke's  Reading  on  the  Statute  of 
Limitations. 

Brooke  N.  C.  Brooke's  New  Cases,  English  King's 
Bench  (Bellewe's  Cases,  temp.  Henry  VIII). 

Brooke  Not.  Brooke  on  the  Office  of  a  Notary  in 
England. 

Brooke  Read.  Brooke's  Reading  on  the  Statute  of 
Limitations. 

Brooke  Six  Judg.  Six  Ecclesiastical  Judgments  of 
the  English  Privy  Council,  by  Brooke. 

Brooks.    Brooks's  Reports,   vols.  106-119   Michigan. 

Broom  C.  L.  or  Broom  Com.  Law  or  Broom  Comm. 
Broom's  Commentaries  on  the  Common  Law. 

Broom  Const.  L.    Broom's   Constitutional   Law. 

Broom  Leg.  Max.  or  Broom  Max.  Broom's  Legal 
Maxims. 

Broom  Part.    Broom's  Parties  to  Actions. 

Broom  &  H.  Com.  or  Broom  d  H.  Comm.  Broom  & 
Hadley's  Commentaries  on  the  Laws  of  England. 

Broun  or  Broun  Just.  Broun's  Reports,  Scotch 
Justiciary  Court. 

Brown.  Brown's  Reports,  vols.  53-65  Mississippi; 
—Brown's  English  Parliamentary  Cases;— Brown's 
English  Chancery  Reports  ;— Brown's  Law  Diction- 
ary;—Brown's  Scotch  Reports ;— Brown's  United 
States  District  Court  Reports;— Brown's  U.  S.  Ad- 
miralty Reports;— Brown's  Michigan  Nisi  Prius  Re- 
ports;—Brown's  Reports,  vols.  4-25  Nebraska;— 
Brownlow  (&  Goldesborough's)  English  Common 
Pleas  Reports  ;— Brown's  Reports,  vols.  80-136  Mis- 
souri.    See,  also,  Bro.   and  Browne. 

Brown,  Adm.  Brown's  United  States  Admiralty 
Reports. 


ABBREVIATION 


27 


ABBREVIATION 


Brown  A.  &  R.  Brown's  United  States  District 
Court    Reports    (Admiralty    and   Revenue   Cases). 

Brown  Car.    Brown  on   Carriers. 

Brown  Ch.  or  Brown  Ch.  C.  or  Brown  Ch.  Cas.  or 
Brown  Ch.  R.    Brown's   Chancery  Cases,  English. 

Brown,  Civ.  &  Adm.  Law.  Brown's  Civil  and  Ad- 
miralty   Law. 

Brown  Comm.     Brown's    Commentaries. 

Brown  Diet.    Brown's  Law  Dictionary. 

Brown  Ecc.  Brown's  Ecclesiastical  Reports,  Eng- 
lish. 

Brown  Ent.    Brown's  Ent; 

Brown  Fixt.     Brown   on    Fixtures. 

n  Lim.    Brown's   Law   of   Limitations. 

Brown.  M.  <£  D.  Browning  on  Marriage  and  Di- 
vorce. 

ion  Novis.    Brown's    Method   of    Novissima. 

Brown  N.  P.  Brown's  Michigan  Nisi  Prius  Re- 
ports. 

Brown  N.  P.  Cos.  Brown's  Nisi  Prius  Cases,  Eng- 
lish. 

Brown  N.  P.  (Mich.).  Brown's  Nisi  Prius  Reports, 
Michigan. 

Brown  P.  C.  or  Brown,  Pari.  C<U.  Brown's  Parlia- 
mentary Cases,  English  House  of  Lords. 

Brow7i  R.  P.  L.  Brown's  Limitations  as  to  Real 
Property. 

Brown  Sales.     Brown  on   Sales. 

Brown  Sup.  or  Brown  Brown's     Supple- 

ment to  Morrison's  Dictionary.  Session  Cases,  Scot- 
land. 

Brown  Syn.  Brown's  Synopsis  of  Decisions  of  the 
Scotch  Court  of  Session. 

Brown  V.  M.     Brown's  Vade  Mecum. 

Brown.  &  Cold.  Brownlow  &  Goldesborough's  Eng- 
lish Common  Pleas  Reports. 

Brown  <£  II.  ( Miss.).  Brown  &  Hemingway's  Re- 
ports, vols.  53-65  Mississippi. 

Brown  dc  L.  or  Brown  &  Lush.  Brown's  &  Lushing- 
ton's  Reports,   English  Admiralty. 

Browne.  Browne's  Pennsylvania  Reports  ;— 
Browne's  Reports,  vols.  97-1C9  and  112-114  Massachu- 
setts ;— Browne,  New  York  Civil  Procedure.  See 
also   Bro.   and   Brown. 

Browne  Adm.  C.  L.  Browne's  Admiralty  and  Civil 
Law. 

Browne  Bank  Cas.  or  Browne  Nat.  B.  C.  Browne's 
National    Bank  Cases. 

Browne  Car.    Browne  on  the  Law  of  Carriers. 

Browne  Civ.  L.     Browne  on  Civil  Law. 

Broione,  Div.  or  Browne  Div.  Pr.  Browne's  Divorce 
Court  Practice. 

Browne  Frauds.    Browne  on  the  Statute  of  Frauds. 

Browne  Insan.  Browne's  Medical  Jurisprudence 
of  Insanity. 

Browne  Mass.  Browne's  Reports,  Massachusetts, 
vols.   97-109  and  112-114. 

Browne  N.  B.  C.     Browne's   National    Bank    Cases. 

Browne,  Proo.  Pr.     Browne's  Probate  Practice. 

Browne  2'.  Af.     Browne  on  Trademarks. 

Browne  Usages.     Browne  on  Usages  and  Customs. 

Browne  &  G.  or  Browne  &  Gray.  Browne  &  Gray's 
Reports,  Massachusetts,  vols.  110-111. 

Browne  «£  Macn.  Browne  &  Macnamara's  English 
Railway  and  Canal  Cases. 

Broioning  Mar.  &  D.  Browning  on  Marriage  and 
Divorce. 

Browning  <£  L.  Browning  &  Lushington's  Reports, 
English  Admiralty. 

Brownl.  or  Brownl.  &  G.  or  Brownl.  &  Gold.  Brown- 
low  &  Goldesborough's  English  Common  Pleas  Re- 
ports. 

Brownl.  Brev.  Jud.     Brownlow's    Brevia   Judiciala. 

Brownl.  Ent.  or  Brownl.  Rediv.  Brownlow's  Redl- 
vivus  or  Entries. 

Bru.  or  Bruce  Bruce's  Reports,  Scotch  Court  of 
Session. 

Bruce  M.  L.     Bruce's   Military  Law,   Scotland. 

Brun.     Brunner's  Collective  Cases.   United   States. 

Brunk.  Ir.  Dig.  Brunker's  Irish  Common  Law  Di- 
gest. 

Brunner  Sel.  Cas.  Brunner's  Selected  Cases  Unit- 
ed  States  Circuit  Courts. 

Bt.  Benedict's  United  States  District  Court  Re- 
ports. 


Buch.     Buchanan's    (Eben   J.   or    James)    R 
Cape  of  Good  Hope. 

or  Tr.     Buchanan's    Remarkable    Crim- 
inal Cases,   Scotland. 

Buch.  Ct.  Ap.  Cape  G.  H.     Buchanan's  Court  of  Ap- 
peals Reports,  Cape  of  Good  1 

But  It.  B.  Cape  G.  H.     E.   Buchanan's  Reports,   Cape 
of  Good  Hope. 

Buch.  E.  D.  Cape  G.  H.      Buchanan's    Eastern    Dis- 
trict Reports,  Cape  of  Good  Hope. 

Buch.  J.  Cape  G.  II.     J.    Bucharjun's   Reports,  Cape 
of    Good   Hope. 

.  Rep.      Buchanan's    Reports,    Cape    of    Good 
Hope. 

Buck.      Buck's    English    Cases    In    Bankruptcy ; — 
Buck's  Reports,  vols.  7-8  Montana. 

Buck  Cas.     Buck's  Bankrupt  Cases,   English. 

Buck.  Co.  Act.     Buckley's  Law  and  Practice  under 
Companies  Act. 

Buck.  Cooke.     Bucknill's   Cooke's    Cases   of    Prac- 
tice, Common  Pleas. 

Buck.  Dec.     Buekner's     Decisions     (in     Freeman's 
Mississippi    Chancery    Reports). 

Buff.  Super.  Ct.  (N.  Y.).     Sheldon's  Superior  Court 
Reports,   Buffalo,   New  York. 

Bull.  N.  P.    Bullcr's  Law  of  Nisi  Prius,  English. 

Bull.  <£  C.  Dig.  or  Bull.  &  Cur.  Dig.     Bollard  &  Cur- 
ry's  Louisiana  Digest. 

Bull.  &  L.  Pr.     Bullen    &    Leake's    Precedents    of 
ng. 

BullerMSB.     J.    Buller's    Paper    Books,    Lincoln's 
Inn  Library. 

Bulling.  Eccl.     Bulllngbrooke's   Ecclesiastical  Law. 

Bulst.    Bulstrode's  Reports,  English  King's  Bench. 

Bump  Bkcy.     Bump's  Bankruptcy  Practice. 

Bump  Fed.  Proc.     Bump's  Federal  Procedure. 

Bump  Fr.  Conv.  or  Bump  Fraud.  Conv.      Bump    on 
Fraudulent  Conveyances. 

Bump  Inter.  Rev.  L.       Bump's     Internal     Revenue 
Laws. 

Bump  N.  C.  or  Bump  Notes.       Bump's      Notes      on 
Constitutional   Decisions. 

Bump  Pat.     Bump's  Law  of  Patents,  Trademarks, 
etc. 

Bu7ib.    Bunbury's  Reports,  English  Exchequer. 

Buny.  L.  A.     Bunyon  on  Life  Insurance. 

Bur.       Burnett's     Reports,     Wisconsin ;— Burrow's 
Reports,   English   King's   Bench. 

Bur.  M.     Burrow's  Reports  tempore  Mansfield. 

Burd.  Cas.  Torts.     Burdick's   Cases  on   Torts. 

Burf.     Burford's  Reports,  vols.  6-18  Oklahoma. 

Burg.  Dig.     Burgwyn's   Digest    Maryland    R 

Burge  Col.  Law.     Burge  on   Colonial   Law. 

Burge  Conft.  Law.    Burge  on  the  Conflict  of  Laws. 

Burge  For.  Laio.     Burge  on  Foreign  Law. 

Burge  Mar.  Int.  L.      Burge    on    Maritime    Interna- 
tional   Law. 

Burge  Sur.     Burge  on    Suretyship. 

Burgess.       Burgess's     Reports,     vols.     46-51     Ohio 
State. 

Burke  Tr.    Burke's  Celebrated  Trials. 

Burks.     Burks's  Reports,  vols.  91-98  Virginia. 

Burlam.  Nat.  Law  or  Burlamuqui.       Burlamaqul's 
Natural  and  Politic  Law. 

Burlesque  Reps.     Skillman's  New  York  Police  Re- 
ports. 

Burm.  L.  R.     Burmah  Law  Reports. 

Burn.     Burnett's  Reports,  Wisconsin. 

Burn.  Cr.  L.      Burnett    on    the    Criminal    Law    of 
Scotland. 

Burn  Diet.     Burn's  Law  Dictionary. 

Bum,  Ecc.  Law  or  Burn  Ec.  L.     Burn's   Ecclesiasti- 
cal  Law. 

Burn  Jus.     Burn's  Justice  of  the  Peace. 

Burnet.      Burnet's    Manuscript    Decisions,    Scotch 
Court  of  Session. 

Burnett.     Burnett's  Wisconsin  Reports  ;— Burnett's 
Reports,    vol 

Burr.      Burrow's  English    King's    Bench 

temp.   Mansfield. 

Burr.  Ass.     Burrlll  on   Assignments. 

Burr.  Circ.  Ev.       Burrill    on    Circumstantial    Evi- 
dence. 

Burr.  Diet.     Burrill's    Law   Dictionary. 


ABBREVIATION 


28 


ABBREVIATION 


Burr.  Prac.    Burrill's  Practice. 
Burr.  S.  C.  or  Sett.  Cas.     Burrows's  English  Settle- 
ment  Cases. 
Burr.  Taxation.     Burroughs  on  Taxation. 
Burr  Tr.    Burr's  Trial. 

Burr  Tr.  Rob.     Burr's   Trial,   reported   by   Robert- 
son. 
Burrill.     Burrill's  Law  Dictionary. 
Burrill,  Circ.  Ev.     Burrill  on   Circumstantial  Evi- 
dence. 
Burrill,  Pr.    Burrill's  Practice. 
Burrow.    Burrow's  Reports,  English  King's  Bench. 
Burrow,  Sett.  Cas.      Burrow's    English    Settlement 
Cases. 
Burt.  Bankr.     Burton  on  Bankruptcy. 
Burt.  Cas.    Burton's  Collection  of  Cases  and  Opin- 
ions. 
Burt.  Pari.     Burton's  Parliamentary  Diary. 
Burt.  R.  P.  or  Burt.  Real  Prop.       Burton     on     Real 
Property. 
Burt.  Sc.  Tr.    Burton's  Scotch  Trials. 
Busb.    Busbee's  Law  Reports,  North  Carolina  Re- 
ports,  vol.   44. 

Busb.  Cr.  Dig.     Busbee's    Criminal    Digest,    North 
Carolina. 

Busb.  Eq.     Busbee's  Equity   Reports,  North  Caro- 
lina. 
Bush.     Bush's  Reports,  Kentucky. 
Busw.  &  Wal.  Pr.     Buswell    &    Walcott's    Practice, 
Massachusetts. 

Butl.  Co.  Litt.     Butler's   Notes  to   Coke   on  Little- 
ton. 
Butl.  Hor.  Jur.     Butler  Horse  Juridica;   Subsecivsa. 
Butt's  Sh.      Butt's    Edition    of    Shower's    English 
King's   Bench   Reports. 

Buxton.      Buxton's    Reports,    vols.    123-129    North 
Carolina. 
Byles,  Bills.     Byles  on   Bills. 
Bynk.     Bynkershoek   on   the   Law   of  War. 
Bynk.  Jur.  Pub.      Bynkershoek    Qusestiones    Juris 
Publici. 

Bynk.  Obs.  Jur.  Rom.      Bynkershoek,    Observation- 
um    Juris   Roman!   Llbri. 
Bynk.  War.    Bynkershoek  on  the  Law  of  War. 
Byth.  Conv.    Bythewood's  Conveyancing. 
Byth.  Prec.     Bythewood's   Precedents. 
C.    Cowen's    Reports,    New    York;— Connecticut;— 
California ;— Colorado  ;— Canada      (Province) ;— Codex 
Juris  Civilis.    Code.    Chancellor.    Chancery.    Chap- 
ter.   Case. 

C.  of  S.  Ca.  1st  Series.  Court  of  Session  Cases, 
First  Series.  By  Shaw,  Dunlop  &  Bell.  Ct  Sess. 
(Sc). 

C.  of  S.  Ca.  2d  Series.  Court  of  Session  Cases,  Sec- 
ond Series.  By  Dunlop,  Bell  &  Murray.  Ct.  Sess. 
(Sc). 

C.  of  S.  Ca.  Sd  Series.  Court  of  Session  Cases, 
Third  Series.  By  Macpherson,  Lee  &  Bell.  Ct. 
Sess.   (Sc). 

C.  of  S.  Ca.  ith  Series.  Court  of  Session  Cases, 
Fourth  Series.  By  Rettie,  Crawford  &  Melville. 
Ct    Sess.   (Sc). 

C.  A.  Court  of  Appeal ;  Court  of  Arches  ;  Chan- 
cery Appeals. 

C.  B.  Chief  Baron  of  the  Exchequer;  Common 
Bench;  English  Common  Bench  Reports,  by  Man- 
ning, Granger  &  Scott. 

C.  B.  N.  S.  English  Common  Bench  Reports,  New 
Series,  by  Manning,  Granger  &  Scott. 
C.  B.  R.  Cour  de  Blanc  de  la  Reine,  Quebec. 
C.  C.  Circuit  Court;  Chancery  Cases;  Crown 
Cases;  County  Court;  City  Court ;  Cases  in  Chan- 
cery, English;  Civil  Code;  Civil  Code  Francais,  or 
Code  Napoleon;    Cepi  Corpus. 

C.  C.  A.  U.  S.  Circuit  Court  of  Appeals  Reports; 
—Circuit  Court  of  Appeals,  United  States ;— County 
Court  Appeals,  English. 

C.  C.  C.  Choice  Cases  in  Chancery,  English  ;— 
Crown   Circuit  Companion. 

C.  C.  Chr.  or  C.  C.  Chron.  Chancery  Cases  Chron- 
icle,  Ontario. 

C.  C.  E.    Caines's    Cases    In    Error,    New    York; — 
Cases  of  Contested  Elections. 
C.  C.  L.  C.    Civil   Code,   Quebec 
C.  Com.    Code  de  Commerce 


C.  C.  P.    Code  of  Civil   Procedure. 
C.  C.  R.    City    Courts   Reports,  New  York   City  ;— 
County  Court  Reports,  Pa.;— Crown  Cases  Reserved. 
C.  Cr.  P.    Code  of  Criminal   Procedure. 
C.  C.  Supp.    City  Court  Reports,  Supplement,  New 
York. 
C.  C.  &  B.  B.    Cepi  Corpus  and  Bail  Bond. 
C.  C.  d  C.    Cepi    Corpus    et   Conimittitur. 
C.  D.    Commissioner's     Decisions,     United     States 
Patent    Office  ;— Century   Digest;— Comyn's   Digest. 
C.  d'Et.    Conseil   d'Etat. 

C.  E.  Gr.    C.   E.   Greene's  New  Jersey  Equity  Re- 
ports. 
C.  F.    Code  Forestier. 

C.  H.  Bee.    City     Hall     Recorder     (Rogers),    New 
York  City. 

C.  H.  Rep.    City    Hall     Reporter     (Lomas),    New 
York   City. 

C.  H.  £  A.    Carrow,  Hamerton  &  Allen's  New  Ses- 
sions Cases,  English. 
C.  I.    Constitutions    Imperlales. 
C.  Instr.  Cr.    Code  Instruction  Crlminelle. 
C.  J.    Chief   Justice. 

C.  J-  C.    Couper's   Justiciary  Cases,  Scotland. 
C.  J.  Can.    Corpus    Juris   Canonic!. 
C.  J.  Civ.    Corpus    Juris   Civilis. 
C.  J.  C.  P.    Chief  Justice  of  the  Common  Pleas. 
C.  J.  K.  B.    Chief  Justice   of   the  King's    Bench. 
C.  J.  Q.  B.    Chief    Justice    of    the    Queen's    Bench. 
C.  J.  U.  B.    Chief  Justice  of  the  Upper   Bench. 
C.  L.    Common  Law.     Civil    Law. 
C.  L.  Ch.    Common    Law    Chamber    Reports,    On- 
tario. 

C.  L.  J.    Central    Law   Journal,    St.    Louis,   Mo.  ;— 
Canada  Law  Journal,  Toronto. 

C.  L.  J.  W.  S.    Canada    Law    Journal,    New   Series, 
Toronto. 
C.  L.  N.    Chicago  Legal  News. 

C.  L.  P.  Act.'  English  Common  Law  Procedure  Act. 
C.  L.  R.    Common   Law   Reports,   printed  by  Spot- 
tiswoode;— English  Common  Law  Reports. 

C.  M.  R.    Crompton,    Meeson    &    Roscoe's    Reports, 
English    Exchequer. 
C.  N.    Code  Napoleon. 

C.  N.  Conf.    Cameron  &  Norwood's  North  Carolina 
Conference  Reports. 
C.  N.  P.    Cases  at  Nisi  Prius. 

C.  N.  P.  C.    Campbell's  Nisi  Prius  Cases,  English. 
C.  O.    Commons'  Orders. 

C.  of  C.  E.    Cases    of    Contested    Elections,    United 
States. 

C.P.    Code   of   Procedure ;— Common   Pleas;— Code 
Penal. 

C.  P.  C.    Code  of   Civil   Procedure,   Quebec  ;— Coda 
de  Procedure  Civile;— Cooper's  Practice  Cases,  Eng- 
lish. 
C.  P.  Coop.    C.  P.  Cooper's   Reports,  English. 
C.  P.  C.  t.  Br.    C.    P.    Cooper's    English    Chancery 
Reports   tempore   Brougham. 

C.  P.  C.  t.  Cott.    C.   P.    Cooper's  English   Chancery 
Reports   tempore  Cottenham. 

C.  P.  D.  or  C.  P.  Div.     Common      Pleas      Division, 
English   Law   Reports   (1875-1880). 
C.  P.  Q.    Code  of  Civil  Procedure,  Quebec. 
C.  P.  Rep.  or  C.  P.  Rept.    Common   Pleas    Reporter, 
Scranton,   Pennsylvania. 
C.  P.  V.  C.    Common  Pleas  Reports,  Upper  Canada. 
C.  Pr.    Code    of    Procedure ;— Code    de    Procedure 
Civile. 

CR.    Chancery     Reports;— Code     Reporter,    New 
York. 
C.  R.  N.  S.    Code  Reports,  New  Series,  New  York. 
C.  Rob.  or  C.  Rob.  Adm.    Christopher  Robinson's 
Reports  on  English  Admiralty. 
C.  S.    Court  of  Session,  Scotland. 
C.  S.  B.  C.    Consolidated   Statutes,   British   Colum- 
bia. 
C.  S.  C.    Consolidated   Statutes   of   Canada,    18o9. 
C.  S.  L.  C.    Consolidated    Statutes,    Lower   Canada, 
C.  S.  M.    Consolidated   Statutes  of  Manitoba. 
C.  S.  N.   B.    Consolidated  Statutes  of  New  Bruns- 
wick. 

C.  S.  V.  C.    Consolidated    Statutes   of    Upper    Can- 
ada, 1859. 
C.  S.  &  J.    Cushlng,    Storey  &    Josselyn's    Election 


ABBREVIATION 


29 


ABBREVIATION 


Cases.     See  vol.  1  Cushing's  Election  Cases,  Massa- 
chusetts. 

&  P.    (Craigie,     Stewart    &)     Paton's    Scotch 
Appeal  Cases. 

C.  T.    Constitutiones  Tlberli. 

C.  Theod.    Codex   Theodosiani. 

C.  t.  /;.  Cases  tempore  King  (Macnaghten's  Se- 
lect Chancery  Cases,  English). 

C.  t.  Ar.  Cases  tempore  Norlhington  (Eden's  Eng- 
lish  Chanci  ry    Reports). 

C.  t.  T.  or  V.  t.  Tall).  Cases  tempore  Talbot,  Eng- 
lish Chani 

C.  W.  Dud.  C.  V»T.  Dudley's  Law  or  Equity  Re- 
ports, South  Carolina. 

Eq.    C.    W.    Dudley's    Equity    Reports, 
South  Carolina. 

C.  d  A.  Cooke  &  Alcock's  Reports,  Irish  King's 
Bench   and   Exchequer. 

C.  d  C.    Coleman    and    Calne's    Cases,    New    York. 

C.dD.  Corbett  &  Daniel's  English  Election  Cas- 
es;— Crawford  &  Dix's  Abridged  Cases,   Irish. 

i).  A.  C.    Crawford    &    Dix's    Abridged    Cases, 
Irish. 

!>.  C.  C.    Crawford  &  Dix's  Irish  Circuit  Cas- 
es:—Crawford  &   Dix's  Criminal  Cases,  Irish. 

C.dE.    Cababe  &  Ellis,  English. 

C.dF.  Clavk  &  Finnelly's  Reports,  English 
House  of  Lords. 

C.  d  H.  Dig.     Coventry   &    Hughes's   Digest. 

C.  d  J.  Cromptou  &  Jervis's  English  Exchequer 
Repoi 

t  .  ((  K.  Carrington  &  Kirwan's  Reports,  English 
Nisi  Prius. 

C.  d  L.  Connor  &  Lawson's  Irish  Chancery  Re- 
ports. 

C.  d  L.  C.  C.    Cane   &  Leigh's  Crown   Cases. 

C.  d  L.  Dig.    Cohen   &   Lee's   Maryland  Digest. 

C.  d  M.  Croinpton  &  Meeson's  English  Exchequer 
Reports;— Carrington  &  Marshman's  English  Nisi 
Prius   Reports. 

C.  d  Marsh.  Carrington  &  Marshman's  Reports, 
English  Nisi  Prius. 

C.  d  2V.  Cameron  &  Norwood's  North  Carolina 
Conference    Reports. 

C.  d  O.  R.  Cas.  or  C.  d  O.  R.  R.  C.  Cos.  Carrow  & 
Oliver's  English  Railway  and  Canal  Cases. 

C.  d  P.  Carrington  &  Payne's  English  Nisi  Prius 
Reports; — Craig   &  Phillips's  Chancery  Reports. 

C.  d  R.  Cockburn  &  Rowe's  Reports,  English  Elec- 
tion  Cases. 

C.  d  S.  Dig.  Connor  &  Simonton's  South  Carolina 
DiKest. 

Ca.    Case; — Placita  ; — Placitum; — Cases   (see  Cas.). 

Ca.  resp.    Capias  ad   respondendum. 

Ca.  sa.    Capias  ad  satisfaciendum. 

Ca.  t.  Hard.    Cases    tempore   Hardwicke. 

Ca.t.K.  Cases  tempore  King; — Cases  tempore 
King,   Chancery. 

Ca.  t.  Talb.    Cases   tempore  Talbot,    Chancery. 

Ca.  temp.  F.    Cases   tempore  Finch. 

Ca.  temp.  II.  Cases  tempore  Hardwicke,  King's 
Bench. 

Ca.  temp.  Holt.    Cases  tempore  Holt,  King's  Bench. 

Cab.  Lawy.    The   Cabinet    Lawyer. 

Cab.  d  E.  or  Cab.  d  El.    Cababe    &    Ellis,    English. 

Cadio.  Dig.  Cadwalader's  Digest  of  Attorney- 
Generals'    Opinions. 

Or.  Rents.    Cadwalader    on    Ground    Rents. 

Cui.  Caines's  Reports,  Supreme  Court,  N.  Y. ; — 
Calncs's   Term  Reports,   New  York   Supreme   Court 

Cai.  Cas.  or  Cai.  Cas.  Err.  Caines's  New  York  Cas- 
es in   Error. 

Cai.  Inst.    Call   or  Gaii   Institutiones. 

Cai.  Lex.  Mer.    Caines's   Lex  Mercatoria. 

Cai.  Pr.    Caines's    Practice. 

Cai.  T.  R.  Caines's  Term  Reports,  New  York  Su- 
preme  Court. 

Cai.  Visig.    Caines's   Visigothicum. 

Cain,  or  Caincs.  Caines,  New  York; — Caines's  Re- 
ports, New  York  Supreme  Court. 

Caines  Cas.  Caines's  Cases,  Court  of  Errors,  New 
York. 

Cairn's  Dec.  Cairn's  Decisions  in  the  Albert  Ar- 
bitration. 

Cairns  Dec.    Cairns's    Decisions,     Reilly,    English. 


Cai.    California;— California    Reports; — Calthrop's 
English  King's  Bench  Reports;— Caldecott's  English 
ut    Cases. 

Cai.  L.  J .    California  Law  Journal,  San  Fr;i- 

Cal.  J. eg.  Adv.     Calcutta    Legal    Advertiser,    India. 

Cai.  Leg.  Obs.     Calcutta    Legal    Observer. 

Cai.  Leg.  Rec.  California  Legal  Record,  San  FraD- 
cisco. 

Cal.Pmc.    Hart's   California   Practice. 

:cp.    California      Reports; — Calthrop's     Eng 
lish  King's  Bench  Reports. 

Cai.  i>.  D.  A.  Calcutta  Sudder  dewanny  Adawlui 
Reports. 

Cai.  Ser.    Calcutta  Series  Indian  Law  Reports. 

Cai.  S'W.    Callis  on   Sewers. 

Cal.W.B.    Calcutta   Weekly    Reporter,    India. 

Calc.  L.  O.    Calcutta   Legal   Obse 

Cnld.  Caldwell's  Reports,  vols.  25-36  West  Vir- 
ginia. 

Cald.  or  Cald.  J.  P.  or  Cold.  M.  Cas.  or  Cald.  S.  C. 
Caldecott's  Englisb  Magistrate's  (Justice  of  the 
Peace)   and  Settlement  Cases. 

Cald.  Arb.    Caldwell  on  Arbitration. 

Cald.  Sett.  Cas.    Caldecott's    Settlement    Cases. 

Call.    Call's  Reports,  Virginia. 

Call.  Mil.  L.    Callan's  Military  Laws. 

Call.  Sew.    Callis  on  Sewers. 

Calth.    Calthorpe's  Reports,  English  King's  Bench. 

Calth.  Coyyh.    Calthorpe   on    Copyholds. 

Calvin,  or  Calv.  Lex.  or  Calvin.  Lex.  Jurid.  Calvin- 
us  Lexicon  Juridicum. 

Calv.  Par.    Calvert  on  Parties  to  Suits  in  Equity. 

Cam.  Cameron's  Reports,  Upper  Canada  Queen's 
Bench. 

Cam.  Crit.    Camden's    Britannia. 

Cam.  Due.    Camera   Ducata,    Duchy    Chamber. 

Cam.  Op.    Cameron's    Legal    Opinions,   Toronto. 

Cam.  Scac.  or  Cam.  Scacc.  Camera  Scaccaria  (Ex- 
chequer Chamber). 

Cam.  Stell.    Camera    Stellata,   Star   Chamber. 

Cam.  d  N.  or  Cam.  d  Nor.  Cameron  &  Norwood's 
Reports,  North  Carolina  Conference  Reports,  vol.  3. 

Camd.  Brit,  or  Camden.    Camden's    Britannia. 

Camp.  Camp's  Reports,  vol.  1  North  Dakota;— 
Campbell's  English  Nisi  Prius  Reports;— Campbell's 
Reports,  vols.  27-58  Nebraska.    See  also  Campbell. 

Camp.  Dec.  or  Campt.  Dec.  Campbell's  Reports  of 
Taney's  Decisions,  U.  S.  Circuit  Court ;— Campbell's 
Decisions. 

Camp.  Ld.  Ch.  or  Camp.  Lives  Ld.  Ch.  Campbell's 
Lives  of  the  Lord  Chancellors. 

Camp.  N.  P.  Campbell's  Reports,  English  Nisi 
Prius. 

Campbell.  Campbell's  English  Nisi  Prius  Re- 
ports;— Campbell's  Reports  of  Taney's  United  States 
Circuit  Court  Decisions;— Campbell's  Legal  Gazette 
Reports,  Pennsylvania;— Campbell's  Reports,  vols. 
27-58   Nebraska. 

Camp.  Neg.    Campbell   on   Negligence. 

Can.    Canon.    Canada. 

Can.  Exch.    Canada  Exchequer  Reports. 

Can.  L.  J.    Canada  Law  Journal,  Toronto. 

Can.  L.  J.  (L.C.).  Lower  Canada  Law  Journal 
Montreal. 

Can.  L.  T.    Canadian  Law  Times,  Toronto,  Canada. 

Can.  Mun.  J.    Canadian    Municipal    Journal. 

Can.  S.  C.  Rep.    Canada    Supreme    Court    Reports 

Canad.  Mo.    Canadian  Monthly. 

Cane  d  L.    Cane  &  Leigh's  Crown  Cases  Reserved. 

Cap.    Capitulum.    Chapter. 

Cape  Law  J.  Cape  Law  Journal,  Grahamstown, 
Cape  of  Good  Hope. 

Car.  Carolina  ;— Carolus;  thus  13  Car.  II.,  signi- 
fies the  thirteenth  year  of  the  reign  of  King 
Charles  II. 

Car.  Cr.  L.    Carrington's  Criminal   Law. 

Car.,  H.  d  A.  Carrow,  Hamerton  &  Allen's  New 
Sessions  Cases,  English. 

Car.  L.  Jour.  Carolina  Law  Journal,  Charleston, 
S.  C. 

Car.  L.  Rep.  Carolina  Law  Repository,  Raleigh, 
N.  C. 

Car.  O.  d  B.  Carrow,  Oliver  &  Bevan's  English 
Railway   and    Canal    Cases. 

Car.  d  K.  or  Car.  &  Kir.  Carrington  It  Kirwan's 
English   Nisi    Prius    Reports. 


ABBREVIATION 


30 


ABBREVIATION 


Car.  &  M.  or  Car.  &  Mar.  Carrington  &  Marslinian's 
English  Nisi  Prius  Reports. 

Car.  &  O.  or  Car.  &  01.  Carrow  &  Oliver's  Railway 
and   Canal   Cases. 

Car.  &  P.  Carrington  &  Payne's  Reports,  English 
Nisi   Prius. 

Carl.    Carleton,   New  Brunswick. 

Carp.    Carpenter's   Reports,  California. 

Carp.  P.  C.    Carpmael's    English    Patent    Cases. 

Carpenter.  Carpenter's  Reports,  vols.  52-53  Cali- 
fornia. 

Carr.  Cas.    Carran's   Summary   Cases,  India. 

Carr.,  Ham.  &  Al.  Carrow,  Hamerton  &  Allen's 
New   Sessions   Cases,   English. 

Carr.  &  K.    Carrington  &  Kirwan. 

Carrau.  Carrau's  Edition  of  "Summary  Cases," 
Bengal. 

Cart.  Cartwright's  Cases,  Canada;— Carter's  Re- 
ports, English  Common  Pleas. 

Cart.  (Ind.).    Carter's   Reports,   Indiana. 

Carta  de  For.    Carta  de  Foresta. 

Carter.  Carter's  English  Common  Pleas  Reports, 
same  as  Orlando  Bridgman  ; — Carter's  Reports,  vols. 
1,  2,  Indiana. 

Carth.    Carthew's  Reports,   English  King's   Bench. 

Cartm.  Trade  M.  Cas.    Cartmell's  Trademark  Cases. 

Cartw.  Const.  Cas.  Cartwright's  Constitutional 
Cases. 

Cary.    Cary's  Reports,   English  Chancery. 

Gary  Part.    Cary  on  Partnership. 

Cas.  Casey's  Reports,  vols.  25-36  Pennsylvania 
State. 

Cas.  App.    Cases  on  Appeal  to  the  House  of  Lords. 

Cas.  Arg.  &Dec.  Ch.  Cases  Argued  and  Decreed 
iu   Chancery,  English. 

Cos.  B.  R.  Cases  Banco  Regis  tempore  William 
III.   (12  Modern  Reports). 

Cas.  B.  R.  Holt.  Cases  and  Resolutions  (of  set- 
tlements;    not  Holt's  King's   Bench  Reports). 

Cas.  Ch.  Cases  in  Chancery,  English;— Select  Cas- 
es in  Chancery; — Cases  in  Chancery  (9  Modern  Re- 
ports). 

Cas.  C.  L.    Cases  in  Crown  Law. 

Cas.  Ch.  1,  2,  8.    Cases  in  Chancery  temp.  Car.  II. 

Cas.  Eq.  Cases  in  equity,  Gilbert's  Reports ; — 
Cases  and  Opinions  in  Law,  Equity,  and  Convey- 
ancing. 

Cas.  Eq.  Abr.    Cases  in   Equity  Abridged,   English. 

Cas.  F.  T.  Cases  tempore  Talbot,  by  Forrester, 
English  Chancery. 

Cas.  H.  L.  or  Cas.  H.  of  L.  Cases  in  the  English 
House  of   Lords. 

Cas.  in  C.  Cases  in  Chancery; — Select  Cases  in 
Chancery. 

Cas.  in  P.  or  Cas.  Pari.    Cases    In   Parliament. 

Cas.  K.  B.  Cases  in  King's  Bench  (8  Modern  Re- 
ports). 

Cas.  K.  B.  t.  H.  or  Cas.  K.  B.  t.  Hardw.  Cases 
temp.  Hardwicke,  W.  Kelynge's  Reports,  English 
King's   Bench. 

Cas.  L.  &  Eq.  Cases  in  Law  and  Equity  (10  Mod- 
ern Reports); — Gilbert's  Cases  in  Law  and  Equity, 
English. 

Cas.  P.  or  Cos.  Pari.    Cases   in  Parliament. 

Cas.  Pr.  Cases  of  Practice  in  the  Court  of  the 
King's  Bench,   from  Eliz.   to  14  Geo.   III. 

Cas.  Pr.  or  Cas.  Pr.  C.  P.  (Cooke).  Cooke's  Practice 
Cases,   English   Common  Pleas. 

Cas.  Pr.  K.  B.  Cases  of  Practice,  English  King's 
Bench. 

Cas.  R.  Casey's  Reports,  Pennsylvania  State  Re- 
ports, vols.  25-36. 

Cas.  S.C.  (Cape  of  O.H.).  Cases  in  the  Supreme 
Court,   Cape  of  Good  Hope. 

Cas.  Self  Def.  Cases  on  Self  Defence,  Horrigan  & 
Thompson's. 

Cas.  Sett.    Cases   of   Settlement,   King's  Bench. 

Cas.  Six  Cir.    Cases   in   the   Six   Circuits,   Ireland. 

Cos.  t.  Ch.  II.  Cases  temp.  Charles  II.,  in  vol.  3 
of  Reports  in  Chancery. 

Cos.  t.  F.    Cases  tempore  Finch,  English  Chancery. 

Cos.  t.  Geo.  I.  Cases  tempore  George  I.,  English 
Chancery,  Modern  Reports,  vols.  8  and  9. 

Cas.  t.  H.  or  Cas.  t.  Hardwicke.  Cases  tempore 
Hardwicke,    English   King's    Bench   (Ridgway,    Lee, 


or    Annaly) ;— West's     Chancery     Reports,    tempore 
Hardwicke. 

Cas.  t.  Holt  or  Cas.  t.  H.  Cases  tempore  Holt. 
English   King's  Bench ;— Holt's  Reports. 

Cas.  t.  K.  Select  Cases  tempore  King,  English 
Chancery  (edited  by  Maenaghten)  ;— Moseley's  Chan- 
cery Reports,   tempore  King. 

Cas.  t.  Lee  (Phillimore's).  Cases  temp.  Lee,  Eng- 
lish  Ecclesiastical. 

Cos.  t.  Mac.  Cases  tempore  Macclesfield,  Modern 
Reports,   vol.  10,    Lucas's   Reports. 

Cas.  t.  Nap.  Cases  tempore  Napier,  by  Drury, 
Irish  Chancery. 

Cas.  t.  North.  Cases  temp.  Northington  (Eden's 
English  Chancery  Reports). 

Cas.  t.  Plunk.  Cases  tempore  Plunkett,  by  Lloyd 
&  Gould,  Irish   Chancery. 

Cas.  t.  Q.  A.  Cases  tempore  Queen  Anne,  Modern 
Reports,  vol.   11. 

Cas.  t.  Sugd.  Cases  tempore  Sugden,  Irish  Chan- 
cery. 

Cas.  t.  Tal.  Cases  tempore  Talbot,  English  Chan- 
cery, Forrester's  Reports. 

Cos.  t.  Wm.  III.  Cases  tempore  William  III.,  Mod- 
ern Reports,  vol.  12. 

Cas.  Tak.  &  Adj.  Cases  Taken  and  Adjudged  (first 
edition  of  Reports  in  Chancery). 

Cas.  Wm.  I.  Bigelow's  Cases,  William  I.  to  Rich- 
ard I. 

Cas.  w.  Op.  or  Cas.  &  Op.  Cases  with  Opinions  of 
Eminent  Counsel. 

Casey.  Casey's  Reports,  Pennsylvania  State  Re- 
ports, vols.  25-36; 

Cass.  Big.    Cassel's  Digest,   Canada. 

Cass.  Sup.  C.  Prac.  Cassel's  Supreme  Court  Prac- 
tice, 2d  edition  by  Masters. 

Castle  Com.    Castle   on    Law  of   Commerce. 

Cav.  Money  Sec.  Cavauaugh's  Law  of  Money  Se- 
curities. 

Cav.  Deb.  Cavendish's  Debates,  House  of  Com- 
mons. 

Cawl.    Cawley's    Laws    against   Recusants. 

Cay  Abr.    Cay's  Abridgment  of  the  Statutes. 

Cel.  Tr.     Burke's   Celebrated   Trials. 

Cent.  Diet.     Century  Dictionary. 

Cent.  Dig.     Century  Digest. 

Centr.  Cr.  C.  R.  Central  Criminal  Court  Reports, 
English. 

Centr.  L.  J.    Central  Law  Journals,  St.  Louis,  Mo. 

Ceyl.  Leg.  Misc.     Ceylon  Legal  Miscellany. 

Ch. 
[1891]    Ch.     English  Chancery   Cases ;    Law   Re- 
ports, 1st  Series,  1891. 
[1892]   Ch.     Same  for  1892,  etc. 

Ch.  App.  Cas.  Chancery  Appeal  Cases,  English 
Law   Reports. 

Ch.  Burn  J.     Chitty  Burn's  Justice. 

Ch.  Cal.     Chancery  Calendar. 

Ch.  Cas.     Cases   in  Chancery. 

Ch.  Cas.  Ch.     Choice  Cases  in  Chancery. 

Ch.  Ch.  or  Ch.  Cham.  (Ont.).  Chancery  Chambers's 
Reports,   Ontario. 

Ch.  Col.  Op.    Chalmers's  Colonial  Opinions. 

Ch.  D.     Chancery  Division   English   Law    Report*. 

Ch.  Dig.     Chaney's  Digest,  Michigan   Reports. 

Ch.  Div.    Chancery  Division,  English  Law  Reports. 

Ch.  J.     Chief   Justice.     Chief  Judge. 

Ch.  Pr.     Chancery   Practice. 

Ch.  Pre.  or  Ch.  Prec.     Precedents  in  Chancery. 

Ch.  R.  or  Ch.  Repts.     Reports  in  Chancery. 

Ch.  R.  M.     R.  M.  Charlton's  Georgia  Reports. 

Ch.  Rep.  Reports  in  Chancery  ;— Irish  Chancery 
Reports. 

Ch.  Sent.    Chancery  Sentinel,  Saratoga,  New  York. 

Ch.  T.  U.  P.     T.  U.   P.  Charlton's  Georgia  Report*. 

Ch.  &  CI.  Cas.     Cripp's   Church   and   Clergy   Cases. 

CTial.  Op.     Chalmer's   Colonial  Opinions. 

Chain,  or  Chamb.  Chamber  Reports,  Upper  Can- 
ada. 

Chamb.  Ch.  Jur.  Chambers's  Chancery  Jurisdic- 
tion. 

Chamb.  Dig.  P.  H.  C.  Chambers's  Digest  of  Public 
Health  Cases. 

Chamb.  L.  <£  T.  Chambers  on  Landlord  and  Ten- 
ant. 


ABBREVIATION 


31 


ABBREVIATION 


Chamb.  Rep.      Chancery    Chamber    Reports,     On- 
tario. 

Chamber.     Chamber   Reports,    Upper   Canada. 

Chan.     Cbaney's   Reports,   vols.   37-58   Michigan  ',— 
Chancellor  ;— Chancery    (see   Ch.). 

Chanc.     Chancery   (see  Ch.). 

Chance.    Chance  on  Powers. 

Ohamd.      Chandler's    Reports,    Wisconsin; — Chand- 
ler's  Hi  ports,   vols.  20,  38-44  New  Hampshire. 

Chand.   Cr.   Tr.   or  Chand.   Crim.   Tr.       Chandler's 
American  Criminal  Trials. 

Chand.  N.  11.     Chandler'a     Reports,     New    Hamp- 
shire,  vols.   20   and   3S-ii. 

ley.     Cbaney's   Reports,   vols.   37-58   Michigan. 
Caa.  Crim.  L.     Chaplin's  Cases  on  Criminal 
Law. 

Char.  Merc.     Charta  Mercatoria. 

Churl.  Pr.  Cas.     Charley's   English   Practice   Cases 
(Judicature  Act). 

Churl.  R.  P.  Stat.     Charley's    Real    Property    Stat- 
utes. 

Charlt.  R.  21.      R.    M.    Onrlton's    Georgia    Reports. 

Oia,  It.    T.  U.  P.  Charlton's  Reports,  Georgia. 

Chase.     Chase's   Decisions   by   Johnson,   U.    S.   4th 
Circuit. 

Chase  Tr.     Chase's  Trial  by  the  U.  8.   Senate. 

Cher.  Cas.     Cherokee   Case. 

Chest.  Cas.     Case  of  the  City  of  Chester,  on  Quo 
Warranto. 

Chev.     Cheves's  Law  Reports,   South   Carolina. 

Chcv.  Ch.  or  Chev.  Eq.  or  Cheves.      Cheves's    Chan- 
cery or  Equity  Reports,  South  Carolina. 

Chic.  L.  B.     Chicago  Law  Bulletin,  Illinois. 

Chic.  L.  J.     Chicago  Law   Journal. 

Chic.  L.  Rec.     Chicago    Law   Record. 

Chic.  L.  T.      Chicago   Law   Times. 

Chic.  Leg.  News.     Chicago    Legal   News. 

Chip.     Chipman's  Reports,  New  Brunswick. 

Chip.  Contr.     Chipman  on  Contracts. 

Chip.  D.     D.  Chipman's   Reports,  Vermont 

Chip.  MS.     Reports   printed  from  Chipman's  Man- 
uscript,   New    Brunswick. 

Chip.  N.     N.   Chipman's  Reports,   Vermont. 

Chip.  W.     Chipman's  New  Brunswick  Reports. 

Chit,  or  Chitt.      Chitty's    English    Bail    Court    Re 
ports. 

Chit.  App.     Chitty   on   Apprentices    and    Journey 
men. 

Chit.  Arch.  Pr.    Chitty's  Archbold's  Practice. 

Chit.  B.C.     Chitty's    Bail   Court   Reports,   English. 

Chit.  Bills.     Chitty  on  Bills. 

Chit.Bl.Cornm.oYChit.Bla.com.     Chitty's  Black- 
stone's  Commentaries. 

Chit.  Burn's  J.     Chitty  Burn's  Justice. 

Chit.  Car.     Chitty  on  Carriers. 

Chit.  Com.  L.  or  Chit.  Com.  Law.     Chitty    on    Com- 
mercial Law. 

Chit.  Cont.  or  Chit.  Contr.     Chitty  on  Contracts. 

Chit.  Cr.  L.  or  Chit.  Crim.  Law.    Chitty  on  Criminal 
Law. 

Chit.  Des.    Chitty  on  the  Law  of  Descent 

Chit.  Eq.  Dig.     Chitty's  Equity  Digest 

Chit.  F.     Chitty's  Forms. 

Chit.  O.  P.  or  Chit.  Gen.  Pr.    Chitty's  General  Prac- 
tice. 

Chit.  Jr.  Bills.     Chitty,  Junior,  on  Bills. 

Chit.  L.  of  N.     Chitty's  Law  of  Nations. 

Chit.  Med.  Jur.    Chitty   on   Medical    Jurisprudence. 

Chit.  PI.    Chitty  on  Pleading. 

Chit.  Pr.  or  Ch  it.  Prac.     Chitty's    General   Practice. 

Chit.  Prec.     Chitty's  Precedents  in  Pleading. 

Chit.  Prer.    Chitty's  Prerogatives  of  the  Crown. 

Chit.  Rep.    Chitty's    Reports,    English    Bail   Court 

Chit.  St.  or  Chit.  Stat.    Chitty's    Statutes    of    Prac- 
tical Utility. 

Chitt.    Chitty's  Reports.  English  Bail  Court 

Cho.  Cas.  Ch.    Choice  Cases  in  Chancery. 

Chr.  Br.  W.    Christie's   Precedents  of  Wills. 

Chr.  Rep.    Chamber  Reports,  Upper  Canada. 

Chr.  Rob.    Christopher  Robinson's  English  Admir- 
alty Reports. 

Christ.  B.  L.    Christian's  Bankrupt  Laws. 

Churchill  <£  Br.  Sh.    Churchill  and  Bruck  on  Sher- 
iffs. 


Chute,  Eq.  Chute's  Equity  under  the  Judicature 
Act. 

Cic.  Frag,  de  Repub.  Cicero.  Fragmenta  de  Repub- 
lica. 

C in.  Law  Bui.  Cincinnati  Law  Bulletin,  Cincin- 
nati, Ohio. 

Cm.  Man.  Dec.     Cincinnati  Municipal  Deci   . 

Cin.  Rep.  or  Cine.  (Ohio).  Cincinnati  Superior 
Court    Reports. 

Eq.     Circuit   Court  in  Equity. 

City  C.  Rep.  or  City  Ct.  R.  City  Court  Reports, 
New  York  City. 

City  Hall  Rec.  Rogers's  City  Hall  Recorder,  New 
York. 

City  Hall  Rep.  Lumas's  City  Hall  Reporter,  New 
York. 

City  Rec.     City  Record,  New  York 
.  Code.     Civil   Code. 

Civ.  Code  Prac.     Civil   Code  of   Practice. 

Civ.  Pro.  or  Civ.  Proc.  R.  or  Civ.  Proc.  Rep.  (N. 
Y.).     Civil   Procedure    Reports.   New   York. 

CI.  App.  Clark's  Appeal  Cases,  English  House  of 
Lords. 

CI.  Ass.     Clerk's  Assistant 

CI.  Ch.     Clarke's  Chancery  Reports,  N.  Y. 

CI.  Col.    Clark's  Colonial  Law. 

CI.  Cr.  L.     Clarke,  Criminal   Law. 

CI.  Elec.     Clark  on  Elections. 

CI.  Extr.     Clarke   on  Extradition. 

CI.  Home.    Clerk  Home,  Scotch  Session  Cases. 

CI.  Home  R.    Clerk  Home  Scotch  Reports. 

CI.  Ins.    Clarke  on  Insurance. 

CI.  R.  L.     Clarke's   Early    Roman    Law. 

CI.  &  F.  or  CI.  &  Fin.  Clark  &  Finnelly's  Reports. 
English  House  of  Lords. 

CI.  d  Fin.  N.  S.  Clark  &  Finnelly's  Reports,  New 
Series,    English   House  of   Lords. 

Clan.  H.  <£-  W.     Clancy  on  Husband  and  Wife. 

CI.  &  H.  Clarke  &  Hall's  Congressional  Election 
Cases. 

Clan.  Mar.  Worn.     Clancy  on  Married  Women. 

Clar.  Pari.  Chr.  Clarendon's  Parliamentary  Chron- 
icle. 

CI«rfc.  Clark's  Appeal  Cases,  English  House  of 
Lords. 

Clark  (Ala.).  Clark's  Reports,  Alabama  Reports, 
vol.  58. 

Clark  Dig.  Clark's  Digest,  House  of  Lords  Re- 
ports. 

CI  irk  Lease.  Clark's  Inquiry  into  the  Nature  of 
Leases. 

ClarA;  (Pa.).  Clark's  Pennsylvania  Law  Journal 
Reports. 

Clark  &  F.  or  Clark  £  Fin.  Clark  &  Finnelly's  Re- 
ports,   English   House   of    Lords. 

Clark  £  Fin.  N.  S.  Clark  &  Finnelly's  Reports, 
New  Series,  English  House  of  Lords. 

Clarke.  Clarke's  New  York  Chancery  Reports  ;— 
Clarke's  edition  of  vols.  1-8  Iowa ;  —Clarke's  Re- 
ports, vols.  19-22  Michigan  ;— Clarke's  Notes  of  Cas- 
es,  Bengal.     See,  also,   Clark. 

Clarke   (Iowa).     Clarke's  'Reports,   vols.  1-8  Iowa. 

Clarke  (Mich.).  Clarke's  Reports,  vols.  19-22 
Michigan. 

Clarke  (N.  Y.).  Clarke's  New  York  Chancery  Re- 
ports. 

Clarke  Adm.  Pr.    Clarke's  Admiralty  Practice. 

Clarke  Bills.     Clarke  on  Bills,  Notes,  and  Checks. 

ClarAre  Ch.  or  Clarke  Ch.  R.  Clarke's  New  York 
Chancery  Reports. 

Clarke  Cr.  L.    Clarke  on  Criminal  Law.  Canada. 

Clarke  Ins.    Clarke  on  Insurance,  Cai 

Clarke  Not.,  or  Clorfce  Not.  R.  d  0.  Clarke's  Notes 
of  Cases,  in  his  Rules  and  Orders,  Bengal. 

Clarke  Prax.     Clarke's  Praxis. 

Clarke  &  H.  Elec.  Cas.  Clarke  &  Hall's  Cases  of 
Contested  Elections  in  Congress. 

Clay.  Conv.     Clayton's  Conveyancing. 

Clayt.     Clayton's  Reports,  English  York  Assize, 

Clfir.  Vs  et  Cout.  Cleiruc,  Da  et  Coutumes  de  la 
Mer. 

Clem.     Clemens's  Reports,  vols.  57-59  Kansas. 

Corp.  Sec.    Clemens  on  Corporate  Securities. 

Clerk  Home.  Clerk  Home's  Decisions,  Scotch 
Court  of  Session. 


ABBREVIATION 


32 


ABBREVIATION 


Clerlce  Dig.     Clerke's  Digest,   New   York. 
ClerkePr.     Clerke's  Praxis  Admiralitatis. 

ice  Rud.    Clerke's  Rudiments  of  American  Law 
and  Practice. 
Clcv.  Bank.     Cleveland  on  the  Banking  System. 
Clev.  L.  Rec.     Cleveland  (Ohio)  Law  Record. 
Clev.  L.  Rep'r.     Cleveland  Law  Reporter. 
Clif,     Clifford's   United   States   Circuit   Court  Re- 
ports. * 

Clif.  (South.)  El.  Cas.     Clifford's    Southwlck   Elec- 
tion  Cases. 

Clif.  cC  R.      Clifford    &    Richard's    English    Locus 
Standi   Reports. 

Clif.  &  Rick.     Clifford  &   Rickard's  English   Locus 
Standi  Reports. 

Clif.  d-  St.      Clifford    b    Stephens's    English    Locus 
Standi   Reports. 
Cliff.     Clifford's  Reports,  U.  S.  1st  Circuit. 
Cliff.  El.  Cas.     Clifford's  Election  Cases. 
Clift  Ent.     Cliffs  Entries. 

Clin.  Dig.     Clinton's  Digest,  New  York  Reports. 
Clin.  &.  Sp.  Dig.    Clinton  &  Spencer's  Digest. 
Clk.  Mag.     Clerk's  Magazine,   London  ;— Rhode   Is- 
land Clerk's  Magazine. 
Clode.     Clode's  Martial  Law. 

Clow  L.  C.  on  Torts.       Clow's     Leading     Cases     on 
Torts. 
Clusk.  P.  T.    Cluskey's  Political  Text  Book. 
Co.    County  ;— Company  ;— Coke's  Reports,  English 
King's   Bench. 
Co.  B.  L.     Cooke's  Bankrupt  Law. 
Co.  Cop.     Coke's  Copyholder. 
Co.  Ct.  Cas.     County  Court  Cases,  English. 
Co.  Ct.  Ch.     County  Court  Chronicle,  English- 
Co.  Ct.  Rep.     County  Court  Reports,  Pa. 
Co.  Cts.    Coke  on  Courts  (4th  Inst.). 
Co.  Ent.    Coke's  Entries. 

Co.  G.    Reports  and  Cases  of  Practice  In  Common 
Pleas   tempore  Anne,  Geo.   I.,  and   Geo.   II.,  by   Sir 
G.  Coke.     (Same  as  Cooke's  Practice  Reports.) 
Co.  Jrist.     Coke's  Institutes. 

Co.  Litt.     The  First  Part  of  the  Institutes  of   the 
Laws  of  England,  or  a  Commentary  on  Littleton,  by 
Sir  Edward  Coke. 
Co.  M.  C.     Coke's  Magna  Charta  (2d  Inst.). 
Co.  P.  C.     Coke's  Pleas  of  the  Crown  (3d  Inst.)  ; — 
Coke's   Reports,  English  King's  Bench. 
Co.  Pal.     County  Palatine. 

Co.  PI.      Coke's    Pleadings    (sometimes    published 
separately). 
Co.  R.  (N.  Y.).    Code  Reporter,  New  York. 
Co.  Rep.    Coke's  Reports,  English  King's  Bench. 
Co.  R.  N.  S.     Code  Reporter,  New  Series. 
Cobb.     Cobb's  Reports,  vols.  4-20  Georgia ;— Cobb's 
Reports,  vol.  121  Alabama. 

Cobb.  Cas.  Int.  L.    Cobbett's  Cases  on  International 
Law. 
Cobb.  Pari.  Hist.    Cobbett's  Parliamentary  History. 
Cobb.  Pol.  Reg.    Cobbett's  Political  Register. 
Cobb  Slav.    Cobb  on  Slavery. 

Cobb.  St.  Tr.    Cobbett's  (afterwards  Howell's)  State 
Trials. 

Cochr.      Cochran's    Nova    Scotia    Reports ;— Coch- 
rane's  Reports,  vols.  3-10  North  Dakota. 
Cock.  Nat.    Cockburn  on  Nationality. 
Cocfc.  Tich.  Ca.    Cockburn's    Charge    in    the    Tich- 
borne  Case. 

Cock.  &  Rowe.    Cockburn      and      Rowe's      English 
Election   Cases. 

Cocke.    Cocke's    Reports,    vols.    16-18    Alabama;— 
Cocke's  Reports,  vols.   14,  15  Florida. 

Cocke  (Fla.).    Cocke's    Reports,    Florida    Reports, 
vols.  14,  15. 
Cocke  Const.  His.    Cocke's    Constitutional    History. 
Cocke  Pr.    Cocke's   Practice   in  the   U.    S.    Courts. 
Cod.    Codex  Justiniani. 

Cod.  Jur.  Civ.    Codex     Juris     Civilis;— Justinian's 
Code. 
Cod.  Theodos.    Codex  Theodorianus. 
Code.    Criminal  Code  of  Canada,  1892. 
Code  Civ.    Code  Civil,  or  Civil  Code  of  France. 
Code  Civ.  Pro.  or  Code  Civ.  Proc.    Code  of  Civil  Pro- 
cedure. 
Code  Civil.    Code  Civil  or  Civil  Code  ol  France. 
Code  Comm.    Code  de  Commerce- 


Code  Cr.  Pro.  or  Code  Cr.  Proc.    Code    of    Criminal 
Procedure. 
Code  de  Com.    Code  de   Commerce. 
Code  d'Instr.  Crim.    Code  d'Instruction  Criminelle. 
Code  F.    Code  Forestier. 
Code  I.    Code   d'Instruction   Criminelle. 
Code  La.    Civil   Code  of   Louisiana. 
Code  N.  or  Code  Nap.    Code  Napoleon,  French  Civil 
Code. 
Code  P.    Code  Penal. 

Code  Pro.    Code    de    Procedure    Civile;— Code    ot 
Procedure. 
Code  Rep.    Code   Reporter,   New   York. 
Code  Rep.  N.  S.  or  Code  R.  N.  S.    Code  Reports,  Now 
Series. 
Cof.  Dig.    Cofer's  Digest,   Kentucky. 
Coffey  Prov.  Dec.    Coffey's    Probate    Decisions. 
Cogh.  Epit.    Coghlan's    Epitome    of    Hindu     Law 
Cases. 

Coke.    Coke's  English  King's  Bench  Reports  (cited 
by  parts  and  not  by  volume). 
Coke  Inst.    Coke's   Institutes. 
Coke  Lit.    Coke  on  Littleton. 

Col.    Colorado  ;— Colorado  Reports;— Coldwell's  Re- 
ports,  Tennessee;— Coleman's   Reports,  vols.   99,  101- 
106,  110-142,  Alabama  ;— Column. 
Col.  App.    Colorado  Appeals. 

Col.  Cas.    Coleman's     Cases     (of    Practice),     New 
York. 
Col.  C.  C.    Collyer's  English   Chancery  Cases. 
Col.  L.  J.    Colonial    Law    Journal,    New    Zealand. 
Col.  L.  Rep.    Colorado  Law  Reporter. 
Col.  Law  Review.    Columbia  Law   Review. 
Col.  &  Cai.  or  Col.  &  Cat.  Cas.    Coleman   &    Caines't 
Cases,  New  York. 
Colb.  Pr.    Colby's    Practice. 
Cold,  or  Coldw.    Coldwell's   Tennessee  Reports. 
Cole.    Cole's  edition  of  Iowa  Reports ;— Coleman's 
Reports,  vols.  99,  101-106,  110-142  Alabama. 
Cole.  Cas.  Pr.    Coleman's  Cases,  New  York. 
Cole.  Dig.    Colebrooke's    Digest    of    Hindoo    Law. 
Cole  Eject.    Cole's  Law  and  Practice  in  Ejectment, 
Cole  Inf.    Cole  on  Criminal   Information. 
Cole.  &  C.    Coleman  &  Caines's  Cases,  New  York. 
Coll.    Colles's   Parliamentary   Cases. 
Coll.    or   Coll.   C.   C.    Collyer's   English    Chancery 
Cases. 

Coll.  Cans.  Cel.    Collection    des    Causes     Celebres, 
Paris. 
Coll.  Contrib.    Collier's   Law   of  Contributories. 
Coll.  Id.    Collinson  on  the  Law  Concerning  Idiots. 
Coll.  Jur.    Collectanea   Juridica. 
Coll.  Min.    Collier  on  Mines. 
Coll.  Part.    Collyer  on  Partnership. 
Coll.  P.  C.  or  Coll.  Pari.  Cas.    Colles's  English  Par- 
liamentary (House  of  Lords)  Cases. 
Coll.  Pat.    Collier  on  the   Law  of   Patents. 
Coll.  &  E.  Bank.    Collier     and    Eaton's     American 
Bankruptcy   Reports. 
Colles.    Colles's  English  Parliamentary  Cases. 
Collin.  Lun.    Collinson  on  Lunacy. 
Colly.    Collyer's    English    Vice    Chancellors's    Re- 
ports. 
Colly.  Partn.    Collyer  on  Partnerships. 
Colo.    Colorado  Reports. 

Colq.    Colquit's  Reports  (1  Modern  Reports). 
Colq.  C.  L.    Colquhoun's    Civil    Law. 
Colq.  R.    Golquit's  Reports   (1  Modern). 
Colq.  Rom.  Civil  Law.    Colquhoun's     Roman     Civil 
Law. 
Colt.    Coltman,  Reg.  App.  Cas. 
Colt.  Reg.  Ca.  or  Colt.  Reg.  Cas.    Coltman's     Regis- 
tration Cases. 
Colum.  Law  T.    Columbia  Law  Times. 
Colvil.    Colvil's      Manuscript     Decisions,      Scotch 
Court    of    Session. 

"Com.  Comyn's  Reports,  English  King's  Bench;— 
Comberbach's  English  King's  Bench  Reports;— 
Comstock's  Reports,  vols.  1-4  New  York  Court  of 
Appeals;— Communes,  or  Extravagantes  Communes; 
—Commissioner;— Commentary  ;— Blackstone's  C»;n- 
mentaries. 

Com.  B.    English     Common     Bench     Reports,     by 
Manning,  Granger  &  Scott. 

Com.  B.  N.  S.    English     Common    Bench     Reports, 
New  Series,  by  Manning,  Granger  &  Scott. 


ABBREVIATION 


33 


ABBREVIATION 


Com.  Cas.    Commercial  Cases,  England. 
Com.  Cont.    Comyn  on   Contracts. 
Com.  Dig.    Comyn's  Digest. 

Com.  Jour.    Journals  of  the  House  of  Commons. 
Com.  Law.    Commercial    Law  ;— Common   Law. 
Com.  L.  R.  or  (Join.  Law  R.  or  Com.  Law  Rep.     Eng- 
lish Common  Law  Reports;— Common   Law   Reports, 
published  by  Spottiswoode. 
Com.  L.  &  T.    Comyn  on   Landlord  and  Tenant 
Com.  I'.  Div.    Common     Pleas     Division,     English 
Law  Reports. 

i'l.    Common    Pleas,    English    Law    Reports. 
Com.  PI.  Div.    Common     Pleas     Division,     English 
Law   Reports. 

Com.  P.  Reptr.    Common    Pleas    Reporter,    Scran- 
ton,   Penna. 
Com.  U.    Comyn  on   Usury. 

Com.  &  Leg.  Rep.    Commercial    and    Legal   Report- 
er,  Nashville,   Tenn. 

Comb.    Comberbach's      Reports,     English     King's 
Bench. 
Comp.  Dec.    Comptroller's   Decisions. 
Comp.  Laws.    Compiled    Laws. 
Comp.  St.    Compiled   Statutes. 

Corns.    Comstock's  Reports,  New  York  Ct  of  Ap- 
peals Reports,  vols.  1-4. 
Corns.  Ex.    Comstock  on   Executors. 
Comst.    Comstock's   Reports,    New    York   Court  of 
Appeals,  vols.  1-4. 

Comyn.    Comyn's   Reports,   English   King's    Bench 
and  Common  Pleas. 
Comyns's  Dig.    Comyns's  Digest,   English. 
Con.    Conover's     Reports,     Wisconsin;— Continua- 
tion   of    Rolle's   Reports    (2    Rolle)  ;— Connoly,    New 
York  Criminal. 
Con.  Cus.    Conroy's   Custodian   Reports. 
Con.  Dig.    Connor's  Digest. 
Con.  Par.    Connell  on  Parishes. 
Con.  &  Law.    Connor    &    Lawson's    Reports,    Irish 
Chancery. 
Com.  &  Sim.    Connor  &   Simonton's   Equity  Digest. 
Cond.    Condensed. 

Cond.  Ch.  R.  or  Cond.  Eng.  Ch.  Condensed  English 
Chancery    Reports. 

Cond.  Eccl.  or  Cond.  Ecc.  R.  Condensed  Ecclesias- 
tical  Reports. 

Cond.  Eng.  Ch.  Condensed  English  Chancery  Re- 
ports. 

Cond.  Exch.  R.  or  Cond.  Ex.  R.  Condensed  Excheq- 
uer Reports. 

Cond.  Rep.  U.  S.    Peter's  Condensed  United   States 
Reports.         « 
Condy  Mar.    Marshall's   Insurance,  by  Condy. 
Conf.    Cameron  &   Norwood's  Conference  Reports, 
North  Carolina. 
Conf.  Chart.    Confirmatio    Chartarum. 
Con.<7.  El.  Cas.  or  Cong.  Elect.  Cas.        Congressional 
Election  Cases. 
Cong.  Rec.    Congressional    Record,    Washington. 
Congr.  Globe.    Congressional     Globe,     Washington. 
Congr.  Rec.    Congressional     Record,     Washington. 
Conk.  Adm.    Conkling's   Admiralty. 
Conk.  Jur.  &  Pr.  or  Conk.  Pr.    Conkling's    Jurisdic- 
tion and  Practice,  U.  S.  Courts. 

Conn.    Connecticut; — Connecticut      Reports; — Con- 
noly, New  York,  Surrogate. 
Connolly.    Connolly,  New  York  Surrogate. 
Conover.    Conover's  Reports,   vols.  1G-153  Wiscon- 
sin. 
Conr.    Conroy's  Custodian   Reports,  Irish. 
Cons,  del  Mare.    Consolato    del    Mare. 
Cons.  Ord.  in  Ch.    Consolidated   General   Orders   In 
Cha.ioery. 

ist.  or  Consist.  Rep.    English   Consistorial    Re- 
ports, by  Haggard. 

Consolid.  Ord.  Consolidated  General  Orders  In 
Chancery. 

Const.  Constitution;— Constitutional  Reports,  South 
Carolina,  by  Mill ;— Constitutional  Reports,  South 
Carolina,  by  Treadway;— Constitutional  Reports, 
vol.  1  South   Carolina,  by  Harper. 

Const.  Hist.  Hallam's  Constitutional  History  of 
England. 

Const.  N.  S.  Constitutional  Reports  (Mill),  South 
Carolina,  New   Series. 

Bouv.— 3 


Const.  Oth.    Constltutiones    Othonl    (found    at    th» 
end  of  Lyndewood's  Provinciale). 

Const.  S.  C.    Treadway's     Constitutional      Reports, 
South   Carolina. 

Const.  (N.  S.)  S.  C.    Mill's   Constitutional    R 
New  Series,  South  Carolina. 
Const.  U.  8.    Constitution  of  the  United  States. 
Consuet.  Feud.    Consuetudines    Feudorum,    or    the 
Book   of    Forms. 
Cont.    Contra. 

Coo.  &  Al.    Cooke  &    Alcock's    Irish    King's    Bench 
Reports. 

Cook  V.  Adm.       Cook's     Vice-Admiralty     Reports. 
Nova  Scotia. 

Cooke.    Cooke's   Cases   of  Practice,   English   Com- 
mon  Pleas;— Cooke's   Reports,   Tennessee. 
Cooke  (Tenn.).    Cooke's  Reports,  Tennessee. 
Cooke  Agr.  T.    Cooke    on    Agricultural    Tenancies. 
Cooke  B.  L.    Cooke's    Bankrupt    Law. 
Cooke  Cop.    Cooke's     Law    of     Copyhold     Enfran- 
chisements. 
Cooke  Def.    Cooke's   Law   of   Defamation. 
Cooke  I.  A.  or  Cooke,  Incl.  Acts.      Cooke's    Inclosure 
Acts. 

Cooke  Pr.  Cas.    Cooke's   Practice   Reports,   English 
Common    Pleas. 

Cooke  Pr.  Reg.    Cooke's   Practical   Register  of  the 
Common   Pleas. 

Cooke  &  Al.  or  Cooke  &  Ale.    Cooke  &   Alcock's  Re- 
ports,  Irish    King's  Bench. 

Cooke  <&  II.    Cooke   &    Harwood's   Charitable   Trust 
Acts. 
Cooley.    Cooley's  Reports,  vols.   5-12  Michigan. 
Cooley  Const.  L.    Cooley   on   Constitutional    Law.     , 
Const.  Lim.    Cooley  on  Constitutional   Lim- 
itations. 

<  Tax.    Cooley  on  Taxation. 
Cooley  Torts.    Cooley   on   Torts. 
Coop.    Cooper's    Tennessee    Chancery    Reports  ;— 
Cooper's   Reports,  vols.  21-24  Florida; — Cooper's  Eng- 
lish    Chancery    Reports     tempore    Eldon; — Cooper's 
English    Chancery    Reports    tempore    Cottenham;— 
Cooper's  English  Chancery  Reports  tempore  Brough- 
am ; — Cooper's    English    Practice    Cases,    Chancery. 
Coop.  (Tenn.).    Cooper's    Reports,    Tennessee. 
Coop.  C.  C.  or  Coop.  Cas.    Cooper's  Chancery   Cases 
temp.  Cottenham. 

Coop.  C.  <£  P.  R.    Cooper's    Chancery    and    Practice 
Reporter,  Upper  Canada. 
Coop.  Ch.    Cooper's    Tennessee    Chancery    Reports. 
Co-op.  Dig.    Co-operative     Digest,     United     States 
Reports. 
Coop.  Eq.  PI.    Cooper's   Equity    Pleading. 
Coop.   Inst,   or   Coop.  Jus.    Cooper's   Institutes    of 
Justinian. 
Coop.  Med.  Jur.    Cooper's    Medical    Jurisprudence. 
Coop.  Pr.  Cas.    Cooper's    Practice    Cases,    English 
Chancery. 

Coop.  Sel.  Cas.    Cooper's  Select  Cases  tempore  El- 
don,  English   Chancery. 

Coop.  t.  Br.  or  Coop.  t.  Brough.    Cooper's  Reports 
temp.    Brougham,    English   Chancery. 

Coop.  t.  Cott.  or  Coop.  t.   Cotten.    Cooper's  Cases 
tempore  Cottenham,  English  Chancery. 

Coop.  t.  Eld.    Cooper's  Reports   temp.   Eldon,    Eng- 
lish   Chancery. 

Coop.  Tenn.  Ch.    Cooper's  Tennessee  Chancery  Re- 
ports. 

Cooper.    Cooper's      Reports,      English      Chancery 
temp.  Eldon. 
Coote  Adm.    Coote's  Admiralty  Practice. 
Coofe  Ecc.  Pr.    Coote's   Ecclesiastical   Practice. 
Coote  L.  &  T.    Coote's  Landlord  and  Tenant 
Coote  Mart.    Coote  on   Mortgages. 
Coote  Pro.  Pr.  or  Coote,  Prob.'Pr.    Coote's     Probate 
Practice. 

Coote  &  Tr.    Coote    &     Tristram's    Probate     Court 
Practice. 
Cop.  Cop.    Copinger  on  Copyright 
Cop.  Ind.  Pr.    Copinger's  Index  to  Precedents. 
Cope.    Cope's  Reports,  vols.  C3-72  California. 
Copp  L.  L.    Copp's  Public  Land   Laws. 
Copp  Land.    Copp's   Land  Office  Decisions. 
Copp  Land  Off.  Bull.    Copp's    Land   Office   Bulletin. 
Copp  Min.  Dec.  or  Co;ip  U.  S.  Min.  Dec.   Copp's  Unit- 
ed States  Mining  Devious. 


ABBREVIATION 


34 


ABBREVIATION 


Ccpp  V.  8.  Min.  L.    Copp's    U.     S.     Mineral     Land 
Laws. 
Cor     Coram;— Cory  ton's   Bengal  Reports. 
Cork.  d  Dan.    Corbett    &    Daniel's    Parliamentary 
Diection   Cases. 
Cord  Mar.  Worn.    Cord  on   Married  Women. 
Corn.  D.    Cornish   on    Purchase  Deeds. 
Corn.  Dig.    Corn  well's  Digest. 
Corn.  Uses.    Cornish  on  Uses. 
Corn.  Rem.    Cornish  on   Remainders. 
Cornw.  Tab.    Cornwall's  Table  of  Precedents. 
Corp.  Jur.  Can.    Corpus   Juris   Canonlcl. 
Corp.  Jur.  Civ.    Corpus    Juris   Civilis. 
Corry.    Corryton's   Reports,  Calcutta. 
Corvin.    Corvinus's  Elementa  Juris   Clvllls. 
Cory.    Coryton's   Reports,  Calcutta. 
Cory.  Cop.    Coryton  on   Copyright. 
Cory.  Pat.    Coryton   on  Patents. 
Cot.  Abr.    Cottons   Abridgment  of  the  Records. 
Com.    Couper's   Justiciary  Reports,   Scotland. 
Coul.  &  F.  Waters.    Coulston  &   Forbes  on  Waters. 
Counsellor.    The  Counsellor,  New   York   City. 
County  Ct.  Rep.    County    Court    Reports,    English. 
County  Ct.  Rep.  N.  S.    County  Court  Reports,   New 
Series,    English. 
County  Cts.  Ch.    County  Courts  Chronicle,  London. 
County  Cts.  &  Bankr.  Cas.       County      Courts     and 
Bankruptcy    Cases. 

Coup,  or  Coup.  Just.    Couper's    Justiciary    Reports, 
Scotland. 
Court  CI.    U.  S.  Court  of  Claim  Reports. 
Court  J.  d  Dist.  Ct.  Rec.    Court    Journal    and    Dis- 
trict Court  Record. 
.     Court  Sess.  Ca.  or  Court  Sess.  Cas.    Court    of     Ses- 
sions  Cases,  Scotch. 

Court.  &  Mad.    Courteney    and    Maclean's    Scotch 
Appeals    (6-7    Wilson   and    Shaw). 
Cout.  Dig.    Coutlee's  Digest,  Canada  Supreme  Court. 
Gov.  Ev.    Coventry  on  Evidence. 
Cow.    Cowen's  New  York  Reports;— Cowper's  Eng- 
lish King's  Bench  Reports. 
Cow.  Cr.  Dig.    Cowen's   Criminal    Digest. 
Cow.  Cr.  or  Coiv.  Cr.  Rep.    Cowen's     Criminal    Re- 
ports,  New   York. 
Cow.  Die.    Cowell's   Law  Dictionary. 
Cow.  Dig.    Cowell's   East   India   Digest 
Cow.  Inst.    Cowell's  Institutes  of  Law. 
Cow.  Int.    Cowell's  Interpreter. 
Cow.  N.  Y.    Cowen's  New  York  Reports. 
Cowell.    Cowell's    Law    Dictionary;— Cowell's    In- 
terpreter. 
Cowp.    Cowper's    Reports,    English   King's    Bench. 
Cowp.  Cas.    Cowper's   Cases   (in  the  third   volume 
of  Reports  in  Chancery). 

Cox.  Cox's  English  Chancery  Reports ;— Cox's 
English  Criminal  Cases ;— Cox's  Reports,  vols.  25-27 
Arkansas. 

Coa;  Am.  Tr.  M.  Cas.    Cox's    American    Trademark 
Cases. 
Cox  (Ark.).    Cox's    Reports    vols.    25-27    Arkansas. 
Cox  C.  C.    Cox's    English    Criminal    Cases;— Cox's 
Crown    Cases ;— Cox's    County    Court    Cases. 
Cox  Ch.    Cox's   English    Chancery  Cases. 
Cox  Cr.  Cas.    Cox's  English  Criminal  Cases. 
Cox  Cr.  Dig.    Cox's  Criminal  Law  Digest. 
Cox  Elect.    Cox   on   Ancient    Parliamentary    Elec- 
tions. 
Coa;  Eq.    Cox's  Reports,  English  Chancery. 
Cox  Gov.    Cox's   Institutions   of  the   English   Gov- 
ernment. 

Cox  Inst.    Cox's  Institutions  of  the  English  Gov- 
ernment. 
Coa;  J.  S.    Cox  on   Joint   Stock  Companies. 
Cox  J.  8.  Cas.    Cox's  Joint  Stock  Cases. 
Cox  M.  C.    Cox's   Magistrate    Cases. 
Coa;,  MoC.  d  H.      Cox,  McCrae  and  Hertslett's  Coun- 
ty Court   Reports,   English. 
Cox  Mag.  Ca.    Cox's  Magistrate   Cases. 
Cox  Man.  Tr.  M.  or  Cox  Tr.  M.      Cox's     Manual     of 
Trade-Mark   Cases. 
Cox  Tr.  M.  Cas.   Cox's  American  Trade-Mark  Cases. 
Cox  d  Atk.    Cox  &  Atkinson,   English  Registration 
Appeal   Reports. 
Coxe.    Coxe's  Reports,  New  Jersey. 
Coxe  &  Melm.    Coxe    &    Melmoth    MSS.    Cases    on 
Fraud,  In   May  on  Fraudulent  Conveyances. 


Cr.  Cranch's  Reports,  United  States  Supreme 
Court ;— Cranch's  United  States  Circuit  Court  Re- 
ports;—Craig's   Jus  Feudale,   Scotland. 

Cr.  or  Cr.  C.  C.  or  Cra.  or  Cra.  C.  C.      Cranch's    Re- 
ports  U.   S.   Circuit   Court,   Dist.  of  Columbia. 
Cr.  Cas.  Res.    Crown  Cases  Reserved,  Law  Reports. 
Cr.  Code.    Criminal    Code. 
Cr.  Code  Prac.    Criminal   Code  of   Practice. 
Cr.  M.  d  R.    Crompton,    Meeson    &    Roscoe's    Eng- 
lish  Exchequer   Reports. 

Cr.  Pat.  Dec.  Cranch's  Decisions  on  Patent  Ap- 
peals. 

Cr.  S.  d  P.  Craigie,  Stewart  &  Paton's  Scotch 
Appeal  Cases   (same  as  Paton). 

Cr.  £  Dix.  Crawford  &  Dix's  Irish  Circuit  Court 
Cases. 

Cr.  &  Dix  Ab.  Cas.  Crawford  &  Dix's  (Irish) 
Abridged  Notes  of  Cases. 

Cr.  &  Dix  C.  C.    Crawford    &    Dix's    Irish    Circuit 
Court   Cases. 
Cr.  &  J.    Crompton  &  Jervis. 

Cr.  d  M.  Crompton  &  Meeson's  English  Exchequer 
Reports. 

Cr.  d  Ph.  Craig  &  Phillips's  English  Chancery 
Reports. 

Cr.  &  St.     Craigie    and    Stewart,    House    of    Lords 
(Sc.)   Reports. 
Cra.     Cranch's  Reports,  U.  S.  Supreme  Court. 
Cra.  C.  C.     Cranch's    Reports,   U.    S.    Circ.    Court, 
Dist.  of   Col. 

Crab.  Crabbe's  United  States  District  Court  Re- 
ports. 

Crabb  Com.  L.  or  Crabb  Com.  Law.     Crabb    on    the 
Common  Law. 
Crabb  Conv.     Crabb's  Conveyancing. 
Crabb.  Dig.    Crabb's  Digest  of  Statutes  from  Mag- 
na Charta  to  9  &  10  Victoria. 

Crabb,  Eng.  Law.  Crabb's  History  of  the  English 
Law. 

Crabb  Hist,  or  Crabb  Hist.  Eng.  Law.  Crabb's  His- 
tory of  the  English  Law. 

Crabb  R.  P.  or  Crabb  Real  Prop.  Crabb  on  the  Law 
of  Real  Property. 

Crabb,  Technol.  Diet.  Crabb's  Technological  Dic- 
tionary. 

Crabbe.    Crabbe's  United  States  District  Court  Re- 
ports ;— Crabbe's    Reports,   District    Court   of    U.    S., 
Eastern   District  of  Penna. 
Craig  Pr.     Craig's  Practice. 

Craig  &  P.  or  Craig  &  Ph.  Craig  and  Phillip's  Eng- 
lish Chancery. 

Craig.  &  St.     Craigie,  Stewart  and  Paton's  English 
House  of   Lords,  Appeals   from   Scotland. 
Craigius,  Jus  Feud.     Craigius  Jus  Feudale. 
Craik  or  Craik  C.  C.     Craik's  English  Causes  C§le- 
bres. 
Cranch.     Cranch's  Reports,  U.  S.   Supreme   Court. 
Cranch  C.  C.  or  Cranch  D.  C.     Cranch's  Reports,  U. 
S.   Circuit  Ct.,  District  of  Columbia. 
Cranch  Pat.  Dec.     Cranch's  Patent  Decisions. 
Crane.     Crane's  Reports,  vols.   22-29  Montana. 
Craw.     Crawford's  Reports,  vols.  53-69,  72-101  Ar- 
kansas. 

Craw,  d  D.  Crawford  and  Dix's  Reports,  Irish 
Circuit  Cases. 

Craw.  &  D.  Abr.  C.     Crawford   and  Dix's   Abridged 
Cases,  Ireland. 
Creasy  (Ceylon).     Creasy's  Ceylon  Reports. 
Creasy  Col.  C.     Creasy's  Colonial  Constitutions. 
Creasy  Int.  L.     Creasy  on  International  Law. 
Cress.  Ins.  Cas.  or  Cressw.  Ins.  Cas.      Cresswell's 
English  Insolvency  Cases. 
Crim.  Con.    Criminal  Conversation,  Adultery. 
Crim.  L.  Mag.  or  Crim.  Law  Mag.       Criminal      Law 
Magazine,  Jersey  City,  New  Jersey. 
Crim.  L.  Rec.     Criminal  Law  Recorder. 
Crim.  L.  Rep.     Criminal   Law  Reporter. 
Crim.  Rec.       Criminal     Recorder,     Philadelphia  ,— 
Criminal     Recorder,     London ;— Criminal     Recorder, 
vol.  1  Wheeler's  New  York  Criminal  Reports. 

Cripp  Ch.  Cas.  or  Cripp's  Ch.  Cas.      Cripp's    Church 
Cases. 
Cripp  Ecc.  L.     Cripp's  Ecclesiastical  Law. 
Critch.      Crltchfield's     Reports,     vols.     5-21     Ohio 
State. 


ABBREVIATION 


35 


Al'.lU     iVIATION 


Cro.  Croke's  English  King's  Bench  Reports  :— 
Kellway's  English  King's  Bench  Reports  by  Serj. 
Croke. 

Cro.  Car.  Croke's  Reports  temp.  Charles  I.  (3 
Cro.). 

Cro.  Eliz.  Croke's  Reports  temp.  Elizabeth  (1 
Cro.). 

Cro.  Jac.  Croke's  English  King's  Bench  Reports 
tempore   James    (Jacobus)   I.   (2  Cro.). 

Crock.  Notes.    Crocker's  Notes  on  Common  Forms. 

Crock.  Slier.    Crocker  on  Sheriffs. 

Crockford.  English  Maritime  Law  Reports,  pub- 
lished by  Crockford. 

Cromp.    Star  Chamber  Cases  by  Crompton. 

Cromp.  Cts.     Crouipton  on   Courts. 

n.  Exvh.  R.     Crompton's    Exchequer    Reports, 
English. 

Cromp.  J.  C.  or  Cromp.  Jur.  Crompton's  Jurisdic- 
tion of  Courts. 

Cromp.  Al.  d  R.  Crompton,  Meeson  and  Roscoe's 
Reports,  English  Exchequer. 

Cromp.  R.  d  C.  Pr.  Crompton's  Rules  and  Cases  of 
Practice. 

Cromp.  d  J.  or  Cromp.  d  Jerv.  Crompton  and  Jer- 
vis's  Reports,  English  Exchequer. 

Cromp.  d  M.  or  i  ees.     Crompton   &    Mee- 

son's  Reports,   English  Exchequer. 

Crosw.  Pat.  Ca.     Croswell's  Patent  Cases. 

Cross  Lien.     Cross  on   Liens. 

Crounse.     Crounse's  Reports,  vol.  3  Nebraska. 

Crown  C.  C.     Crown  Circuit  Companion. 

Crowth.  or  Crowther  (Ceylon).  Crowther's  Ceylon 
Reports. 

Cruise  Dig.  or  Cruise  R.  P.  Cruise's  Digest  of  the 
Law  of  Real  Property. 

Cruise  T-itles.     Cruise  on  Titles  of  Honor. 

Cruise  Uses.    Cruise  on  Uses. 

Crump  Ins.  or  Crump  Mar.  Ins.  Crump  on  Marine 
Insurance. 

Crumrine.  Crumrine's  Reports,  vols.  116-146  Penn- 
sylvania. 

Ct.  App.  N.  Z.  Court  of  Appeals  Reports,  New 
Zealand. 

Ct.  CI.  or  Ct.  of  CI.    Court  of  Claims,  United  States. 

Ct.  of  App.     Court  of  Appeals. 

Ct.  of  Err.     Court  of  Error. 

Ct.  of  Gen.  Sess.    Court  of   General   Sessions. 

Ct.  of  Sess.    Court  of  Session. 

Ct.  of  Spec.  Sess.    Court   of   Special  Sessions. 

Cujacius.     Cujacius,  Opera,  quae  de  Jure  fecit,  etc. 

Cul.    Culpabilis,  Guilty. 

Cull.  B.  L.    Cullen's  Bankrupt  Law. 

Cum.  C.  L.     Cumin's   Civil   Law. 

Cum.  &  Dun.  Rem.  Tr.  Cummins  &  Dunphy's  Re- 
markable Trials. 

Cummins.     Cummins's  Reports,  Idaho. 

Cun.  or  Cunn.  Cunningham's  Reports,  English 
King's   Bench. 

Cun.  Bills  of  Ex.  Cunningham  on  Bills  of  Ex- 
change. 

Cun.  Diet.     Cunningham's  Dictionary. 

Cunn.  or  Cunningham.  Cunningham's  English 
Bench  Reports. 

Cur.  Curtis'  United  States  Circuit  Court  Re- 
ports ;— Curia. 

Cur.  Adv.  Vult.    Curia  Advlsare  Vult. 

Cur.  Can.    Cursus  Cancellarlse. 

Cur.  Com.  Current  Comment  and  Legal  Miscel- 
lany. 

Cur.  Dec.  Curtis's  Decisions,  United  States  Su- 
preme Court. 

Cur.  Ov.  Ca.     Curwen's   Overruled    Cases,   Ohio. 

Cur.  Phil.     Curia  Phillpplca. 

Cur.  Scacc.     Currus  Scaccarii. 

Current  Com.  Current  Comment  and  Legal  Mis- 
cellany. 

Curry.  Curry's  Reports,  Louisiana  Reports,  vols. 
6-19. 

Curt.  Curtis'  United  States  Circuit  Court  Re- 
ports;— Curteis'  English  Ecclesiastical  Reports. 

Curt.  Adm.  Dig.     Curtis'  Admiralty  Dl| 

Curt.  C.  C.  Curtis'  United  States  Circuit  Court 
Decisions. 

Curt.  Com.    Curtis'  Commentaries. 


Curt.  Cond.  Curtis'  (Condensed)  Decisions,  United 
States  Supreme  Court. 

Curt.  Cop.     Curtis  on  Copyrights. 

Curt.  Dec.  Curtis'  United  States  Supreme  Court 
Decisions. 

Dig.    Curtis'   Digest,  United  States. 

Curt.  Ecc.    Curteis'  English  Ecclesiastical  Reports. 

Curt.  Eq.  Prec.    Curtis'  Equity  Precedents. 

Curt.  Jur.  Curtis  on  the  Jurisdiction  of  the  U.  8. 
Courts. 

Curt.  Mcr.  S.    Curtis  on  Merchant  Seamen. 

Curt.  Pat.     Curtis  on  Patents. 

Curtis.  Curtis'  United  States  Circuit  Court  Re- 
ports. 

Curw.  Curwen's  Overruled  Cases ;— Curwen's 
Statutes  of   Ohio. 

Curw.  Abs.  Tit.     Curwen  on  Abstracts  of  Title. 

Curio.  L.  O.    Curwen's  Laws  of  Ohio  1S54,  1   vol. 

Curw.  R.  S.    Curwen's  Revised  Statutes  of  Ohio. 

Cuah.  Cushlng's  Massachusetts  Reports; — Cush- 
man's  Mississippi   Reports. 

Cush.  Elec.  Cas.  Cushlng's  Election  Cases  In  Mas- 
sachusetts. 

Cush.  .Man.     Cushing's  Manual. 

Cush.  Pari.  L.     Cushing's  Parliamentary  Law. 

Cush.  Trust.  Pr.     Cushing   on   Trustee   Proc 
Foreign  Attachment. 

Cushing.     Cushing's  Massachusetts   Reports. 

Cuslim.  or  Cushman.  Cushman's  Reports,  Missis- 
sippi  Reports,  vols.  23-29. 

Cust.  de  Norm.     Custorne  de  Normandle. 

Cust.Rep.     Cust' i  -istical  Reports. 

Cutl.     Cutler  on  Naturalization. 

Cutl.  Ins.  L.  Cutler's  Insolvent  Laws  of  Massachu- 
setts. 

Cut.  Pat.  Cas.  Cutler's  Trademark  and  Patent 
Cases,  11  vols. 

Cyc.    Cyclopaedia  of   Law   and   Procedure. 

D.  Decree.  Decret.  Dictum  ;— Digest,  particular- 
ly the  Digest  of  Justinian ;— Dictionary,  particu- 
larly Morison's  Dictionary  of  the  Law  of  Scotland; 
— Delaware  ;— Dallas's  United  States  and  Pennsyl- 
vania Reports;— Denio's  Reports,  New  York;— Dun- 
lop,  Bell  &  Murray's  Reports,  Scotch  Session  Cases 
(Second  Series) ;— Digest  of  Justinian,  50  books, 
never  been  translated  into  English;— Disney,  Ohio; 
—Divisional  Court; — Dowling,  English  ;— Dominion 
of  Canada. 

D.  B.    Domesday  Book. 

D.  C.    District  Court.     District  of  Columbia. 

D.  C.  L.    Doctor    of    the    Civil    Law. 

D.  Chip.    D.   Chipman's    Reports,   Vermont. 

D.  Dec.    Dix's  School   Decisions,  New  York. 

D.  F.  d  J.  De  Gex,  Fisher,  and  Jones's  Reports, 
English   Chancery. 

D.  Q.  De  Gex;— De  Gex's  English  Bankruptcy  Re- 
ports. 

D.  G.  F.  d  J.  De  Gex,  Fisher,  &  Jones's  English 
Chancery  Reports. 

D.  G.  F.  d  J.  B.  De  Gex,  Fisher,  &  Jones's  English 
Bankruptcy  Reports. 

D.  G.  J.  d  S.  De  Gex,  Jones  &  Smith's  English 
Chancery  Reports. 

D.  G.  J.  d  S.  B.  De  Gex,  Jones  &  Smith's  English 
Bankruptcy  Reports. 

D.  G.  M.  d  G.  De  Gex,  Macnaghten,  &  Gordon's 
English    Chancery    Reports. 

D.  G.  M.  d  G.  B.  De  Gex,  Macnaghten,  &  Gordon's 
English   Bankruptcy   Reports. 

D.  J.  d  S.  De  Gex,  Jones,  and  Smith's  Reports, 
English  Chancery. 

D.  M.  d  G.  De  Gex,  Macnaghten,  and  Gordon's 
Reports,  English  Chancery. 

D.N.  8.    Dowling's    R  English 

Bail  Court ;— Dow,  New  Seri.  Clark,  Eng- 

lish   House    of    Lords    Cases) ;— Dowling's    Practice 
Cases,   New  Series,  English. 

D.  P.    Domus   Procerum,  House  of  Lords. 

D.  P.  B.    Damp!  Seei.  i'.  B. 

D.  P.  C.     Dowling's   Practice  Cases,  Old  Series. 

D.  Pr.    Darlings  Pra.  tice,  Court  of  Session. 

D.  S.    Deputy  SI. 

D.  S.  B.    Debit  sans  breve. 

D.  d  B.  or  D.  d  B.  C.  C.  Dearsly  &  Bell's  English 
Crown  Cases,  Reserved. 


ABBREVIATION 


36 


ABBREVIATION 


D.  d  C.  Dow  and  Clark's  English  House  of  Lords 
(Parliamentary    Cases). 

D.  d  C.  or  D.  d  Ch.  or  D.  d  Chit.  Deacon  and  Chit- 
ty's  Bankruptcy   Cases,   English. 

D.  d  E.  Durnford  and  East,  English  King's  Bench 
Term  Reports. 

D.  d  J.  De  Gex  and  Jones's  Reports,  English 
Chancery. 

D.  d  J.  B.  De  Gex  and  Jones's  English  Bankrupt- 
cy  Reports. 

D.  d  L.  Dowllng  and  Lowndes's  English  Bail 
3ourt  Reports. 

D.  d  M.  Davison  and  Merivale's  Reports,  English 
Queen's   Bench. 

D.  &  P.  Dennison  and  Pearce's  Crown  Cases,  Eng- 
lish. 

D.  d  R.  Dowling  and  Ryland's  Reports,  English 
King's   Bench. 

D.  d  R.  M.  C.    Dowling    and    Ryland's    Magistrate 

D.  d  R.  N.  P.  or  D.  d  R.  N.  P.  C.  Dowling  &  Ry- 
land's English  Nisi  Prius  Cases. 

D.&S.  Drewry  &  Smale's  Chancery  Reports;— 
Doctor  and  Student;— Deane  and  Swabey. 

D.dSm.  Drew  and  Smale's  English  V.  C.  Re- 
ports. 

D.  d  Sw.  Deane  and  Swabey,  English  Ecclesiasti- 
cal   Reports. 

D.  d  W.  Drury  &  Walsh's  Irish  Chancery  Re- 
ports;—Drury   &  Warren's   Irish  Chancery  Reports. 

D.  d  War.  Drury  and  Warren's  Reports,  Irish 
Chancery. 

Dag.  Cr.  L.    Dagge's  Criminal  Law. 

Dak.    Dakota  ;— Dakota  Territory  Reports. 

Dal.  Dallas's  United  States  Reports ;— Dalison's 
English  Common  Pleas  Reports  (bound  with  Ben- 
loe);— Dalrymple's    Scotch    Session    Cases. 

Dal.  Coop.  Dallas's  Report  of  Cooper's  Opinion 
on  the  Sentence  of  a  Foreign  Court  of  Admiralty. 

Dale.    Dale's  Reports,  vols.  2-4  Oklahoma. 

Dale  Ecc.    Dale's    Ecclesiastical   Reports,    English. 

Dale  Leg.  Rit.  Dale's  Legal  Ritual  (Ecclesiasti- 
cal)   Reports. 

Dalison.  Dalison's  English  Common  Pleas  Re- 
ports  (bound  with  Benloe). 

Dall.  Dallas's  Reports,  U.  S.  Supreme  Court  and 
Pennsylvania  Courts. 

Dall.  Dec.  or  Dall.  Dig.  Dallam's  Texas  Decisions, 
printed  originally   in  Dallam's  Digest. 

Dall.  L.    Dallas's  Laws  of  Pennsylvania. 

Dall.  in  Keil.  Dallison  in  Keilway's  Reports,  Eng- 
lish  King's   Bench. 

Dall.  S.  C.  Dallas's  United  States  Supreme  Court 
Reports. 

Dall.  Sty.    Dallas's    Styles,    Scotland. 

Dall.  (Tex.).    Dallam's    Texas    Reports. 

Dall.  Tex.  Dig.    Dallam's  Texas  Digest. 

Dallam.     Dallam's  Decisions,  Texas  Supreme  Court 

Dallas.  Dallas's  Pennsylvania  and  United  States 
Reports. 

Dalloz.  Dictionnalre  genSral  et  raisonne  de  leg- 
Jslatiou,  de  doctrine,  et  de  jurisprudence,  en  matiere 
civile,  commerciale,  criminelle,  administrative,  et 
de   droit   public. 

Dalr.  Dalrymple's  Decisions,  Scotch  Court  of 
Session;— (Dalrymple  of)  Stair's  Decisions,  Scotch 
Court  of  Session;— (Dalrymple  of)  Hailes's  Scotch 
Session    Cases. 

Dalr.  Ent.    Dalrymple    on    the    Polity   of    Entails. 

Dalr.  F.  L.  or  Dalr.  Feud.  Pr.  or  Dalr.  Feud. 
Prop.    Drlrymple  on   Feudal   Property. 

Dalr.  Ten.    Dalrymple  on   Tenures. 

Dalrymple.  (Sir  Hew)  Dalrymple's  Scotch  Ses- 
sion Cases;— (Sir  David  Dalrymple  of)  Hailes's 
Scotch  Session  Cases;— (Sir  James  Dalrymple  of) 
Stair's  Scotch  Session  Cases.  See,  also,  Dal.  and 
Dalr. 
Dalt.  Just.  Dalton's  Justice. 
Dalt.  Sh.    Dalton's    Sheriff. 

Daly.    Daly's  Reports,   N°ew  York  Common  Pleas. 
Dampier  MSS.    Dampier's    Paper    Book,    Lincoln's 
Inn   Library. 
D'An.    D'Anvers's  Abridgment. 

Dan.  Daniell's  Exchequer  and  Equity  Reports;— 
Dana's  Kentucky  Reports ; — Danner's  Reports,  vol. 
42   Alabama. 


Dan.  Ch.  Pr.    Daniel's  Chancery  Practice. 
Dan.  Neg.  Inst.    Daniel's    Negotiable    Instruments. 
Dan.  Ord.    Danish    Ordinance. 
Dan.  T.  M.    Daniels    on   Trademarks. 
Dan.  d  LI.  or  Dan.  d  Lid.    Dauson   &    Lloyd's    Mer- 
cantile Cases. 
Dana.    Dana's    Reports,   Kentucky. 
Dane  Abr.    Dane's  Abridgment. 
Daniel,    Neg.    Inst.    Daniel's    Negotiable    Instru- 
ments. 
Daniell,  Ch.  Pr.    Daniell's   Chancery   Practice. 
Dann.    Dann's     Arizona     Reports ; — Danner's    Re- 
ports, vol.  42  Alabama;— Dann's  California  Reports. 
Danner.    Danner's      Reports,     Alabama      Reports, 
vol.   42. 

Dans,  d  L.  or  Dans,  d  Lid.    Danson  &  Lloyd's  Eng- 
lish  Mercantile  Cases. 
D'Anv.  Abr.    D'Anvers's   Abridgment. 
Darb.  d  B.    Darby    &    Bosanquet    on    Limitations. 
Darl.  Pr.  Ct.  Sess.    Darling,   Practice  of  the  Court 
of  Session   (Scotch). 
Dart.  Col.  Cas.    Report  of  Dartmouth  College  Case. 
Dart  Vend.    Dart  on  Vendors  and  Purchasers. 
Das.    Dasent's    Bankruptcy    and    Insolvency    Re- 
ports ; — Common    Law    Reports,   vol.   3. 
Dass.  Dig.    Dassler's   Digest   Kansas    Reports. 
Dauph.  Co.  Rep.    Dauphin  County  Reporter,  Penn- 
sylvania. 

Dav.  Daveis's  United  States  District  Court  Re- 
ports (now  republished  as  2  Ware) ;— Davy's  or 
Davies's  Irish  King's  Bench  and  Exchequer  Re- 
ports;— Davies's  English  Patent  Cases; — Davis's  Re- 
ports (Abridgment  of  Sir  Edward  Coke's  Reports) ; 
— Davis's  Reports,  vol.  2  Hawaii ; — Davis's  United 
States  Supreme  Court  Reports. 

Dav.  Coke.    Davis's     Abridgment    of     Coke's     Re- 
ports. 
Dav.  Con.  or  Dav.  Conv.    Davidson's   Conveyancing. 
Dav.  Dig.    Davis's   Indiana    Digest. 
Dav.  Eng.  Ch.  Can.     Davis's  English  Church  Canon. 
Dav.  Ir.  or  Dav.  Ir.  K.  B.    Davies's    Reports,    Irish 
King's  Bench. 
Dav.  Jus.    Davis's  Justice  of  the  Peace. 
Dav.  Pat.  Cas.    Davies's    Patent     Cases,    English 
Courts. 

Dav.  Prec.  or  Dav.  Free.  Conv.  Davidson's  Prece- 
dents in  Conveyancing. 

Dav.  Rep.  Davies's  (Sir  John)  Reports,  King's 
Bench,  Ireland. 

Dav.  (U.  S.).  Daveis's  Reports,  U.  S.  Dist.  of 
Maine  (2d  Ware). 

Dav.  d  M.  or  Dav.  d  Mer.  Davison  &  Merivale's 
Reports,  English   Queen's  Bench. 

Daveis.  Daveis's  United  States  District  Court  Re- 
ports  (republished  as  2  Ware). 

Davidson.  Davidson's  Reports,  vols.  92-111  North 
Carolina. 

Danes.  Davies's  (or  Davis's  or  Davys's>  Irish 
King's  Bench  Reports. 

Davis.  Davis's  Hawaiian  Reports ;— Davies's  (or 
Davys's)  Irish  King's  Bench  Reports;— Davis's  Re- 
ports, vols.  108-176  United  States  Supreme  Court. 

Davis  (J.C.B.).  Davis's  United  States  Supreme 
Court  Reports. 

Davis  Bldg.  Soc.  or  Davis  Build.    Davis's    Law    of 
Building    Societies. 
Davis  Rep.    Davis's   Reports,    Sandwich   Island. 
Daw.  Arr.    Dawe  on   the   Law  of   Arrest  in   Civil 
Cases. 

Daw.  Land.  Pr.  Dawe's  Epitome  of  the  Law  of 
Landed  Property. 

Daw.  Real  Pr.  Dawe's  Introduction  to  the  Knowl- 
edge of  the  Law  on  Real  Estates. 

Day.    Day's  Connecticut   Reports;— Connecticut  Re- 
ports,   proper,    reported    by    Day. 
Day  Elect.  Cas.    Day's    Election    Cases. 
Day  Pr.    Day's  Common  Law  Practice. 
Dayt.  Surr.    Dayton   on   Surrogates. 
Dayt.  Term  Rep.    Dayton    Term    Reports,    Dayton, 
Ohio. 
De  Bois.  Halluc.    De   Bolsmont  on  Hallucinations. 
De  Burgh  Mar.  Int.  L.    De  Burgh  on  Maritime  In- 
ternational  Law. 

De  Colyar's  Quar.  De  Colyar's  Law  of  Quaran- 
tine. 


ABBREVIATION 


37 


ABI  ION 


D'Eiccs.  D'Ewes's  Journal  and  Parliamentary 
Collection. 

De  G.    De  Gex's   Reports,   English   Bankruptcy. 

Dc  G.  F.  d  J.  De  Gex,  Fisher,  &  Jones'  Reports, 
English   Chancery. 

De  G.  F.  d  J.  B.  App.  or  Dc  G.  F.  d  J.  By.  De 
Gex,  Fisher,  &  Jones's  Bankruptcy  Appeals,  Eng- 
lish. 

Dc  G.  J.  d  S.  De  Gex,  Jones,  &  Smith's  Reports, 
English    Chancery. 

Dc  G.  J.  d  S.  Bankr.  or  De  G.  J.  &  S.  By.  De  Gex, 
Jones,  &    Smith's    Bankruptcy  Appeals,   English. 

M.  d  (!.  De  Gex,  Macnaghten,  &  Gordon's 
English  Bankruptcy  Reports;— De  Gex,  Macnaghten, 
i    Gordon's   English    Chancery    Reports. 

De  G.  M.  &  G.  Bankr.  or  De  G.  M.  dc  G.  By.  De 
Gex,  Macnaghten,  &  Gordon's  Bankruptcy  Appeals, 
English. 

De  G.  dc  J.  De  Gex  &.  Jones's  Reports,  English 
Chancery. 

De  G.  dc  J.  Bankr.  or  De  Q.  dc  J.  By.  De  Gex  & 
Jones's   English    Bankruptcy    Appeals. 

De  G.  dc  Sin.  De  Gex  &  Smale's  Reports,  English 
Chancery. 

De  Gex.    De    Gex's    English    Bankruptcy    Reports. 

De  Gex,  M.  dc  G.  De  Gex,  Macnaghten  &  Gordon's 
Reports,  English. 

De  H.  M.  L.  or  De  Hart,  Mil.  Law.  De  Hart  on 
Military  Law. 

De  Jure  Mar.    Malloy's  De   Jure  Maritlmo. 

De  L.  Const.  De  Lolme  on  the  English  Constitu- 
tion. 

Dea.  Deady's  United  States  District  Court  Re- 
ports. 

Dea.  dc  Chit.  Deacon  &  Chitty's  English  Bank- 
ruptcy Reports. 

Dea.  d  Sw.  Deane  &  Swabey's  Reports,  English 
Ecclesiastical  Courts; — Deane  &  Swabey's  Reports, 
Probate  and  Divorce. 

Deac.    Deacon's    Reports,   English    Bankruptcy. 

Deac.  Bankr.     Deacon    on   Bankruptcy. 

Deac.  dc  C.  or  Deac.  dc  Chit.  Deacon  &  Chitty's  Eng- 
lish Bankruptcy  Reports. 

Dcady.    Deady's  Reports,  U.   S.   Dist.  of  Oregon. 

Dean  Med.  Jur.    Dean's    Medical    Jurisprudence. 

Deane.  Deane  (&  Swabey's)  English  Probate  and 
Divorce  Reports ;— Deane's  Reports  vols.  24-26  Ver- 
mont 

Deane  Conv.    Deane's   Conveyancing. 

Deane  Ecc.  or  Deane  Ecc.  Rep.  Deane  &  Swabey's 
.English   Ecclesiastical   Reports. 

Deane  N.    Deane   on  Neutrals. 

Deane  d  Sw.  Deane  &  Swabey's  English  Ecclesi- 
astical  Reports. 

Dears,  or  Dears.  C.  C.  or  Dears,  dc  B.  or  Dears,  d 
B.  C.  C.  Dearsly's  &  Bell's  English  Crown  Cases 
Reserved. 

Dcas  d  And.  Deas  &  Anderson's  Scotch  Court  of 
Session  Cases. 

Deb.  Jud.    Debates  on  the  Judiciary. 

Dec.  Coin.  Pat.  Decisions  of  the  Commissioner  of 
Patents. 

Dec.  Dig.    American  Digest,  Decennial   Edition. 

Dec.  Joint  Com.  Decisions  of  the  Joint  Commis- 
sion. 

Dec.  0.    Ohio  Decisions. 

Dec.  t.  H.  d-  M.  Decisions  In  Admiralty  tempore 
Hay  &  Marriott 

Decen.  Dig.     American  Digest,   Decennial   Edition. 

Deft.    Defendant. 

Degge.     Degge's  Parson's  Companion. 

Del.  Delaware  ;  —  Delaware  Reports;  —  Delane's 
English  Revision  Cases. 

Del.  Ch.     Delaware  Chancery  Reports,  by  Bates. 

Del.  Co.     Delaware  County  Reports,  Pennsylvania. 

Del.  Cr.  Cos.  Delaware  Criminal  Cases,  by  Hous- 
ton. 

Del.  El.  Cas.  Delane's  English  Election  (Revi- 
sion)   Cases. 

Deleg.    Court  of  Delegates. 

Dclchanty.  Delehanty's  New  York  Miscellaneous 
Reports. 

De  Lolme,  Eng.  Const.  De  Lolme  on  the  English 
Constitution. 

Dcm.  or  Dem.  Surr.  Demarest's  New  York  Surro- 
gate  Reports. 


Demol.  or  Demol.  C.  N.     Demolombe's    Code   Napo- 
leon. 

Den.      Denlo's    New    York    Reports ;— Denis's    Re- 
ports, vols.   32-46  Louisiana  Annual  ;— Denied. 

Den.  or  Denio.     Denlo's  Reports,   New   York. 

Den.  C.  C.    Denison's  English  Crown  C 

Den.  d  P.      Denison     &    Pearce's    English    Crown 
Cases,   vol.    2  Denison. 

Denio.     Denlo's  New   York  Rep 

Denis.     Denis's  Reports,  vols.  32-46  Louisiana. 

Dens.     Denslow's  Notes  to  second  edition,  vols.  1-3 
Michigan   Reports. 

Denver  L.  J.     Denver  Law  Journal. 

Denver  L.  N.    Denver  Legal  News. 

De  Orat.     Cicero,  De  Oratore. 

Des.,  Dess.,  or  Dessaus.  or  Desaus.  Eq.      Dessaus- 
sure's  Reports,  South  Carolina. 

Dest.  Cal.  Dig.     Desty's  California  Digest. 

Desty  Com.  d  Nav.    Desty  on  Commerce  and  Navi- 
gation. 

Desty  Fed.  Const.     Desty  on  the  Federal  Constitu- 
tion. 

Desty  Fed.  Proc.    Desty's  Federal  Procedure. 

Desty  Sh.  d  Adm.     Desty  on  Shipping  and  Admir- 
alty. 

Dev.     Devereux's  North  Carolina  Law  Reports  ;— 
Devereux's  Reports,  United  States  Court  of  Claims. 

Dev.   C.  C.  or  Dev.  Ct.  CI.      Devereux's    P^eports, 
United  States  Court  of  Claims. 

Dev.  Eq.    Devereux's  Equity  Reports,  North  Caro- 
lina, vols.  16-17. 

Dev.  L.  or  Dev.  (N.  C.).     Devereux's   Law   Reports, 
North   Carolina,   vols.  12-15. 

Dev.  d  B.  Eq.  or  Dev.  d  Bat.  Eq.     Devereux   &   Bat- 
tle's Equity  Reports,  North  Carolina. 

Dev.  d  B.  L.  or  Dev.  d  Bat.    Devereux  &   Battle's 
Law  Reports,  North  Carolina. 

Dew.    Dewey's  Reports,  vols.  60-70  Kansas ;— Dew- 
ey's Kansas  Court  of  Appeals  Reports. 

De  Witt.      De    Witt's     Reports,     vols.     24-42    Ohio 
State. 

Di.  or  Dy.     Dyer's  English  Reports,  King's  Bench. 

Dial,  de  Scac.    Dialogus  de  Scaccario. 

Dibb  F.     Dibb's  Forms  of  Memorials. 

Dice  (Ind.).     Dice's    Reports,    vols.    71-99    Indiana. 

Dicey,  Const.     Dicey,  Lectures  Introductory  to  tho 
Study  of  the  Law  of  the  English  Constitution. 

Dicey  Dom.     Dicey  on  Domicil. 

Dicey  Part.    Dicey  on  Parties  to  Actions. 

Dick.     Dickens's  English  Chancery  Reports;— Dick- 
inson's Reports,  vols.  46-59  New  Jers> . 

Dick.  Ch.  Prec.     Dickinson's  Chancery   Precedents. 

Dick.  Pr.  or  Dick.  Qr.  Si    8.     Dickinson's  Practice  of 
the  Quarter  and  other  Sessions. 

Diikson  Ev.     Dickson's  Law  of  Evidence. 

Diet.    Dictionary. 

Dig.     Digest ;— Digest     of     Justinian ;— Digest    of 
Writs. 

Dig.  Proem.    Digest  of  Justinian,  Proem. 

Digby  R.  P.     Digby  on  Real  Property. 

Dil.  or  Dill.     Dillon's   United  States  Circuit  Court 
Reports. 

Dill.  Mun.  Corp.     Dillon     on     Municipal    Corpora- 
tions. 

Dirl.     Dlrleton's  Decisions,   Scotch   Court  of    Ses- 
sion. 

Dis.  or  Disn.     Disney's     Superior     Court     Report" 
Cincinnati,  Ohio. 

Disn.  Gam.     Disney's   Law  of  Gaming. 
'..  Rep.     District  Reports. 

Div.     Division,   Courts  of   the  High  Court  of  Ju«- 
tlce. 

Div.  d  Matr.  C.     Divorce   and   Matrimonial    Causes 
Court 

Doer.  PI.    Doctrina  Placitanda. 

Doct.  d  Stud.     Doctor   and   Student 

Jhtj.  or  Dods.      Dodson's     English    Admiralty     Re- 
ports. 

Dod.  Adm.     Dodson's    Reports,    English   Admiralty 
Courts. 

Dods.       Dodson's      Reports,      English      Admiralty 
Courts 

Dom.  or  Domat.     Domat  on  Civil   Law. 

Dom.  Book.      Domesday    Book. 


ABBREVIATION 


38 


ABBREVIATION 


Dom.  Proc.  Domus  Piocerum.  In  the  House  of 
Lords. 

Domat.     Domat  on  Civil  Law. 

Domat  Supp.  au  Droit  Public.  Domat,  Les  Lois  Civ- 
llea,  Le  Droit  Public,  etc.  Augrnentee  des  3e  et 
4e  livres  du  Droit  Public,  par  M.  de  Hericourt,  etc. 

Domes,  or  Domesd.  or  Domesday.     Domesday   Book. 

Donaker.     Donaker's  Reports,  vol.  151  Indiana. 

Donn.  Donnelly's  Reports,  English  Chancery ; — 
Donnelly's  Irish  Land  Cases. 

Dor.  Q.  B.  or  Dorion  (Quebec).  Dorion's  Quebec 
Queen's  Bench  Reports  ;— (Dec.  de  la  Cour  D'Appel). 

Dos  Passos,  Stutk-Brok.  Dos  Passos  on  Stock- 
Brokers  and  Stock  Exchanges. 

Doug.  Douglas's  Michigan  Reports  ; — Douglas's 
English  King's  Bench  Reports ;— Douglas's  English 
Election  Cases. 

Doug.  El.  Ca.  or  Doug.  El.  Cos.  Douglas's  English 
Election   Cases. 

Dow.  Dow's  House  of  Lords  (Parliamentary) 
Cases,  same  as  Dow's  Reports  ;— Dowling's  English 
Practice   Cases. 

Dow  N.  S.  Dow  &  Clark's  English  House  of 
Lords  Cases. 

Dow  P.  C.  Dow's  Parliamentary  Cases  ; — Dowling's 
English  Practice  Cases. 

Dow  &  C.  Dow  &  Clark's  English  House  of  Lords 
Cases. 

Dow.  &  L.  Dowling  &  Lowndes's  English  Bail 
Court  Reports. 

Dow.  &  Ry.  Dowling  &  Ryland's  English  King's 
Bench  Reports  ; — Dowling  &  Ryland's  English  Nisi 
Prius  Cases. 

Dow.  &  Ry.  M.  C.  Dowling  &  Ryland's  English 
Magistrates'   Cases. 

Dow.  d  Ry.  N.  P.  Dowling  &  Ryland's  English  Nisi 
Prius  Cases.  (Often  bound  at  end  of  vol.  1  Dowling 
&  Ryland's   King's   Bench   Reports.) 

Dowl.  Dowling's  English  Bail  Court  (Practice) 
Cases. 

Dowl.  N.  S.  Dowling's  English  Bail  Court  Reports, 
New  Series. 

Dowl.  P.  C.  or  Dowl.  Pr.  C.  Dowling's  English  Bail 
Court   (Practice)  Ca^es. 

Dowl.  Pr.  C.  N.  S.  Dcwling's  Reports,  New  Series, 
English  Practice  Cases. 

Dowl.  &  L.  or  Dowl.  &  Lownd.  Dowling  &  Lown- 
des's English  Bail  Court  and  Practice  Cases. 

Dowl.  &  R.  or  Dowl.  &  Ry.  or  Dowl.  &  Ryl.  Dowling 
&  Ryland's  English  King's  Bench  Reports. 

Dowl.  &  Ry.  M.  C.  or  Dowl.  &  Ryl.  M.  C.  Dowling  & 
Ryland's   Magistrate   Cases,    English. 

Dowl.  &  Ry.  N.  P.  or  Dowl.  &  Ryl.  N.  P.  Dowling  & 
Ryland's  Nisi  Prius  Cases,  English. 

Down.  &  Lud.  Downton  &  Luder's  Election  Cases, 
English. 

Dr.  Drewry's  English  Vice  Chancellor's  Reports ; 
— Drury's  Irish  Chancery  Reports  tempore  Sugden  ; 
— Drury's   Irish   Chancery   Reports    tempore   Napier. 

Dr.  R.  t.  Nap.  Drury's  Irish  Chancery  Reports 
tempore  Napier. 

Dr.  R.  t.  Sug.  Drury's  Irish  Chancery  Reports 
tempore   Sugden. 

Dr.  &  Sm.  Drewry  &  Smale's  English  Vice  Chan- 
cellors' Reports. 

Dr.  &  Wal.  Drury  &  Walsh's  Irish  Chancery  Re- 
ports. 

Dr.  &  War.  Drury  &  Warren's  Irish  Chancery  Re- 
ports. 

Drake  Att.  or  Drake  Attachm.  Drake  on  Attach- 
ments. 

Draper.  Draper's  Upper  Canada  King's  Bench 
Reports,  Ontario. 

Drew.  Drewry's  English  Vice  Chancellors'  Re- 
ports ; — Drew's   Reports,  vol.  13  Florida. 

Drew.  Inj.     Drewry  on  Injunctions. 

Drew.  &  S.  or  Drew.  &  Sm.  or  Drewry  &  Sm.  Drew- 
ry &  Smale's  Reports,   English   Chancery. 

Drewry.    Drewry's  Reports,  English  Chancery. 

Drewry  T.  M.     Drewry  on  Trademarks. 

Drink,  or  Drinkw.  Drinkwater's  English  Common 
Pleas  Reports. 

Drone  Copyr.     Drone  on  Copyrights. 

Dru.  or  Drury.  Drury's  Irish  Chancery  Reports 
tempore  Sugden. 


Dru.  t.  Nap.     Drury's  Irish  Chancery  Reports  tem- 
pore Napier. 

Drury  t.  Sug.      Drury's     Irish     Chancery    Reports 
tempore  Sugden. 

Dru.  &  Wal.    Drury  &  Walsh's  Irish  Chancery  Re- 
ports. 

Dru.  &  War.     Drury    &    Warren's    Reports,    Irish 
Chancery. 

Du  Cor  DuCange.    Du    Cange's   Glossarium. 

Duane  Road  L.     Duane  on  Road   Laws. 

Dub.     Dubitatur.     Dubitante. 

Dub.  Rev.    Dublin  Review,  Dublin,  Ireland. 

Dud.  or  Dud.  O a.     Dudley's  Reports,  Georgia. 

Dud.  Ch.  or  Dud.  Eq.  (S.  C).     Dudley's  Equity  Re- 
ports, South  Carolina. 

Dud.  L.  or  Dud.  S.  C.    Dudley's  Law  Reports,  South 
Carolina. 

Duer.     Duer's  Reports,   New  York  Superior  Court, 
vols.  8-13. 

Duer  Const.     Duer's   Constitutional   Jurisprudence. 

Duer  Ins.     Duer  on  Insurance. 

Duer  Mar.  Ins.     Duer  on   Marine   Insurance. 

Duer  Repr.     Duer  on  Representation. 

Dufresne.    Dufresne's  [Law]   Glossary. 

Dugd.  Orig.    Dugdale's  Originates  Juridiciales. 

Dugd.  Sum.     Dugdale's  Summons. 

Duke  or  Duke  Uses.     Duke  on  Charitable  Uses. 

Dun.     Duncan    (see  Dune.)  ; — Dunlap    (see    Dun!.). 

Dun.  &  Cum.      Dunphy    &    Cummins's    Remarkable 
Trials. 

Dune.  Ent.  Cas.     Duncan's  Scotch  Entail  Cases. 

Dune.  N.  P.     Duncombe's  Nisi  Prius. 

Duncan's  Man.     Duncan's  Manual  of  Entail   Pro- 
cedure. 

Dungl.  Med.  Diet.     Dunglison,   Dictionary  of  Medi- 
cal  Science  and   Literature. 

Dunl.     Dunlop,    Bell,   &   Murray's   Reports,   Scotch 
Court  of  Session  (Second  Series,  1838-62). 

Dunl.  Abr.     Dunlap's    Abridgment    of    Coke's    Re- 
ports. 

Dunl.  Adm.  Pr.     Dunlop's   Admiralty   Practice. 

Dunl.  B.  &  M.     Dunlop,   Bell,   &   Murray's   Reports, 
Scotch  Court  of  Session  (Second  Series,  1838-62). 

Dunl.  F.     Dunlop's   Forms. 

Dunl.  L.  Penn.    Dunlop's  Laws  of  Pennsylvania. 

Dunl.  L.  U.  S.    Dunlop's  Laws  of  the  United  States. 

Dunl.  Paley  Ag.    Dunlop's  Paley  on  Agency. 

Dunl.  Pr.    Dunlop's  Practice. 

Dunlop  or  Dunl.  B.  &  M.     Dunlop,   Bell   &  Murray's 
Reports,  Second   Series,  Scotch  Session  Cases. 

Dunn.     Dunning's  English  King's   Bench   Reports. 

Duponc.  Const.     Duponceau  on  the  Constitution. 

Duponc.  Jur.     Duponceau  on  Jurisdiction. 

Dur.  Dr.  Fr.     Duranton's   Droit  Francais. 

Durf.  (R.  I.).     Durfee's   Reports,   vol.   2  Rhode   Is- 
land. 

Durie  or  Durie  Sc.     Durie's  Scottish  Court  of  Ses- 
sion  Cases. 

Durn.  &  E.  or  Durnf.  &  E.    Durnford  &  East's  Eng- 
lish King's  Bench  Reports  (Term  Reports). 

Dutch.    Dutcher's  Reports,  New  Jersey  Law. 

Duv.      Duvall's    Kentucky    Reports ; — Duval's    Re- 
ports,  Canada  Supreme   Court. 

Duv.  (Can.).     Duvall's  Canada  Supreme  Court  Re- 
ports. 

Duval.     Duval's  Reports,   Canada  Supreme  Court. 

Dwar.     Dwarris  on    Statutes. 

Divar.  St.     Dwarris  on  Statutes. 

Dwight.     Dwight's  Charity  Cases,  English. 

Dy.  or  Dyer.      Dyer's    English    King's    Bench    Re- 
ports. 

E.    Easter  Term.    King  Edward  ;— East's  Reports, 
English  King's  Bench. 

E.  B.    Ecclesiastical   Compensations   or   "Bots." 

E.  B.  &  E.    Ellis,    Blackburn,    and   Ellis's   Reports, 
English  Queen's   Bench. 

E.  B.  &  S.     (Ellis)   Best  &  Smith's  English  Queen's 
Bench   Reports. 

E.G.    English     Cases;— English    Chancery  ;— Eng- 
lish  Chancery   Reports; — Election  Cases,  Ontario. 
,  E.  C.  L.    English  Common  Law  Reports. 

E.  D.  C.    Eastern   District  Court,    South  Africa. 

E.  D.  S.  or  E.  D.  Smith  (N.  Y.).    E.   D.  Smith's  Re- 
ports,   New   York   Common    Pleas. 

E.  E.    English   Exchequer  Reports. 


ABBREVIATION 


39 


ABBREVIATION 


E.  E.  R.    English  Ecclesiastical  Reports. 

E.  I.    Ecclesiastical    Institutes. 

E.  I.  0.     East  India  Company. 

E.  L.  d  Eq.    English  Law   and  Equity   Reports. 

E.  of  Cov.    Earl  of  Coventry's  Case. 

E.  P.  C.    East's   Pleas  of  the  Crown. 

E.R.  East's  King's  Bench  Reports;— Election  Re- 
ports. 

E.  R.  C.    English    Ruling  Cases. 

E.  T.    Easter  Term. 

E.  d  A.  Ecclesiastical  and  Admiralty;— Error  and 
Appeal;— Spink's  Ecclesiastical  and  Admiralty  Re- 
ports;— Upper  Canada  Error  and  Appeal    Reports. 

E.dA.R.    Error  and  Appeal  Reports,   Ontario. 

E.  d  A.  W.  C.  Grant's  Error  and  Appeal  Reports, 
Ontario. 

E.  ct  B.  Ellis  &  Blackburn's  Reports,  English 
Queen's  Bench. 

E.  &  E.  Ellis  &  Ellis's  Reports,  English  Queen's 
Bench. 

E.  d  I.  English  and  Irish  Appeals,  House  of 
Lords. 

E.  d  Y.    Eagle    &    Tounge's    English   Tithe    Cases. 

Ea.     East's  English  King's  Bench  Reports. 

Eag.  T.    Eagle's  Commutation  of  Tithes. 

Eag.  d  Yo.     Eagle  &  Younge's  English  Tithe  Cases. 

East.  East's  King's  Bench  Reports  ;— East's  Notes 
of  Cases  In  Morley's  Indian  Digest ; — Eastern  Re- 
porter. 

East  N.  of  C.  East's  Notes  of  Cases  (In  Morley's 
East  Indian  Digest). 

East,  P.  C.  or  East,  PI.  Cr.  East's  Pleas  of  the 
Crown. 

East.  Rep.    Eastern    Reporter. 

East's  N.  of  C.    East's   Notes   of    Cases,    India. 

Ebersole.    Ebersole's   Reports,   vols.   59-80   Iowa. 

Ec.  d  Ad.  Spink's  Ecclesiastical  and  Admiralty 
Reports. 

Eccl.    Ecclesiastical. 

Eccl.  Law.    Ecclesiastical  Law. 

Eccl.  R.  or  .Eccl.  Rep.  English  Ecclesiastical  Re- 
ports. 

Eccl.  Stat.    Ecclesiastical   Statutes. 

Eccl.  d  Ad.  Ecclesiastical  and  Admiralty; — Spink's 
Ecclesiastical  and   Admiralty   Reports. 

Ed.  Edition.  •  Edited.  King  Edward;— Eden's  Eng- 
lish Chancery  Reports. 

Ed.  Bro.  Eden'a  edition  of  Brown's  English  Chan- 
cery Reports. 

Ed.  Cr.    Edwards's   New   York    Chancery   Reports. 

Ed.  et  Ord.    Edits  et  Ordonnances  (Lower  Canada). 

Eden.  Eden's  Reports,  High  Court  of  Chancery, 
England. 

Eden  B.  L.  or  Eden,  Bankr.    Eden's  Bankrupt  Law. 

Eden  Inj.    Eden  on   Injunctions. 

Eden  Pen.  L.    Eden's  Penal   Law. 

Edg.    Edgar's  Reports,  Scotch  Court  of  Session. 

Edg.  C.    Canons  enacted  under  King   Edgar. 

Edict.    Edicts  of  Justinian. 

Edin.  L.  J.  or  Edinb.  L.  J.  Edinburgh  Law  Jour- 
nal. 

Edin.  Exch.  Pr.    Edmund's    Exchequer   Practice. 

Edm.  Sel.  Cos.    Edmonds's  Select  Cases,  New  York. 

Edw.  Edwards's  New  York  Chancery  Reports ; — 
Edwards's  English  Admiralty  Reports; — Edwards's 
Reports,  vols.  2,  3  Missouri; — King  Edward;  thus  1 
Bdw.  I.  signifies  the  first  year  of  the  reign  of  King 
Edward  I. 

Edw.  Abr.  Edwards's  Abridgment  of  Cases  In 
Privy  Council ; — Edwards's  Abridgment  of  Preroga- 
tive Court  Cases. 

Edw.  Adm.  Edwards's  Admiralty  Reports,  Eng- 
lish. 

Edw.  Bail.    Edwards  on   Bailments, 

Edw.  Bill.    Edwards  on  Bills. 

Edw.  Ch.    Edwards's  Chancery  Reports,  New  York. 

Edw.  Jur.    Edwards's   Juryman's  Guide. 

Edw.  Lead.  Dec.  Edwards's  Leading  Decisions  In 
Admiralty ;     Edwards's    Admiralty    Reports. 

Edw.  (Mo.).     Edwards's    Reports,    Missouri. 

Edw.  Part.  Edwards  on  Parties  to  Bills  in  Chan- 
cery. 

Edw.  Pr.  Cas.  Edwards's  Prize  Cases  (English 
Admiralty  Reports). 

Edw.  Pr.  Ct.  Cas.  Edwards's  Abridgment  of  Pre- 
rogative Court  Cases. 


Edw.  Rec.    Edwards  on   Receivers  In  Chancery 

Edw.  St.  Act.    Edwards   on   the    Stam: 

Edw.  (Tho.).    Edwards's    English    Adc    iltj    Re- 
ports. 

E/ird.    Eflrd's   Reports,  vols.  45-61  South  Carolina. 
Lambert's   Eirenarcha. 

El.    Queen   Elizabeth;— Elchles's  Decisions,  Seotch 
Court   of    Session. 

El.  B.  d  II.     Ellis,    Blackburn,    ft    Ellis's    Reports. 
English  Queen's  Bench. 

El.  /»'.  d  S.     Ellis,  Best,  ft  Smith's  Reports,  English 
Queen's  Bench. 

El.  Cas.     Election  Cases. 

El.  Diet.    Elchies's  Dictionary  of  Decisions,   Court 
of    Session,    Scotland. 

El.  d  B.  or  El.  d  Bl.       Ellis     ft     Blackburn's     Re- 
ports,  English  Queen's  Bench. 

El.  c£  El.     Ellis  ft  Ellis's   Reports,  English  Queen's 
Bench. 

Elchie.  or  Elchies's  Diet.    Elchles'3     Dictionary    of 
Decisions,  Scotch  Court  of   Session. 

Elec.  Cas.  N.  Y.    New   York    Election   Cases    (Arm- 
strong's). 

Eliz.    Queen   Elizabeth. 

Ell.  Bl.  d  Ell.    Ellis,   Blackburn,  ft  Ellis's  English 
Queen's  Bench  Reports. 

Ell.  Deb.    Ellis's   Debates. 

Ell.  Dig.  Minn.     Eller's  Digest,  Minnesota  Reports. 

Ell.  D.  d  Cr.     Ellis  on   Debtor  and  Creditor. 

Ell.  Ins.    Ellis  on  Insurance. 

Ell.  d  Bl.    Ellis    ft    Blackburn's    English    Queen's 
Bench    Reports. 

Ell.  d  Ell.    Ellis  ft   Ellis's   English   Queen's  Bench 
Reports. 

:m.  Post  N.    Ellesmere's   Post  Natl. 

Elliott,  App.  Proc.    Elliott's    Appellate    Procedure. 

Elm.  Dig.     Elmer's   Digest,  New  Jersey. 

Elm.  Dilap.    Elmes     on    Ecclesiastical     and     Civil 
Dilapidation. 

Ehner,  Lun.    Elmer's   Practice  in   Lunacy. 

Els.  W.  Bl.    Elsley's  Edition   of   W'rn.    Blackstone* 
English  King's  Bench  Reports. 

Elsyn.  Pari.    Elsynge  on   Parliaments. 

Elt.  Ten.  of  Kent.    Elton's  Tenures  of  Kent 

Elton,  Com.     Elton  on  Commons  and  Waste  Lands. 

Elton,  Copyh.    Elton  on  Copyholds. 

Elw.  Med.  Jur.    Elwell's    Medical    Jurisprudence. 

Emer.  Ins.     Emerigon  on  Insurance. 

Emer.  Mar.  Loans  or  Emerig.  Mar.  Loans.      Emeri- 
gon on   Maritime  Loans. 

Emerig.  Tr.  des  Ass.  or  Emerig.  Traite  des  Assur. 
Emerigon,  Traite  des  Assurances. 

Enc.     Encyclopaedia. 

Enc.  Brit.    Encyclopaedia   Britannlca. 

Enc.  Forms.    Encyclopaedia  of   Forms.' 

Enc.  PI.  d  Pr.  or  Encyc.  PI.  d  Pr.    Encyclopaedia    of 
Pleading   and   Practice. 

Ency.  Law.    American    and    English  Encyclopaedia 
of  Law. 

Encyc.    Encyclopaedia. 

Encyc.  PI.  d  Pr.    Encyclopaedia  of  Pleading  ft  Prac- 
tice. 

Encycl.    Encyclopaedia. 

Eng.    English;— English's    Reports,   vols.    6-13    Ar- 
kansas;— English  Reports  by  N.   C.   Moak. 

Eng.  Ad.    English   Admiralty;— English    Admiralty 
Reports. 

Eng.  Adm.  R.     English  Admiralty    Reports. 

Eng.  C.  C,  or  Eng.  Cr.  Cos.      English    Crown    Cases 
(American    reprint). 

lb     Chancery  ;— English     Chancery 
Reports;— Co  English    Chancery    Reports. 

Eng.  C.  L.  or  Eng.  Com.  L.  R.    Engli-h  Common-Law 
Reports. 

Eng.  Ecc.  R.     English    Ecclesiastical    Reports. 

Eng.  EccL    English   Ecclesiastical   Reports. 

Eng.  Exch.    English  Exchequer  Reports. 

Eng.  Ir.  App.     English    Law   Reports,    English   and 
Irish   Appeal  Cases. 

Jud.  or  Eng.  Ju<l  :     Scotch    Court    of    Session 
Cases,  decided  by  the   English  Judges. 

Eng.  L.  d  Eq.  or  Eng.  L.  d  Eq.  R.     English  Law  and 
Equity  Reports. 

Eng.  Plead.    English    Pleader. 

Eng.  R.  d  C.  Cas.    English     Railroad     and     Canal 
Cases. 


ABBREVIATION 


40 


ABBREVIATION 


Sng.  Re.    English  Reports,  Full  Reprint 
Eng.  Rep.    Moak's      English      Reports ;— English's 
Reports,    vols.    6-13   Arkansas ;— English    Reports. 
Eng.  Rep.  R.    English   Reports,    Full   Reprint- 
Eng.  Ru.  Ca.    English  Ruling  Cases. 
Eng.  Ry.  &  C.  Cas.    English     Railway     and     Canal 
Cases. 

Eng.  Sc.  Ecc.  English  and  Scotch  Ecclesiastical 
Reports. 

Eng.  &  Ir.  App.    Law    Reports,    English    and    Irish 
Appeal  Cases. 
English.    English's    Reports,    vols.    6-13   Arkansas. 
En't.    Coke's    Entries;— Rastell's   Entries. 
Entries,  Ancient.    Rastell's  Entries  (cited  in  Rol- 
le's  Abridgment). 

Entries,  New  Book  of.    Sometimes    refers    to    Ras- 
tell's Entries,  and  sometimes  to  Coke's  Entries. 
Entries,  Old  Book  of.    Liber  Intrationum. 
Eod.    Eodem. 
Eq.    Equity. 

Eq.  Ab.  or  Eq.  Ca.  Abr.    Equity  Cases  Abridged. 
Eq.  Cas.    Equity   Cases,   vol.   9,  Modern   Reports. 
Eq.  Cas.  Abr.    Equity  Cases  Abridged    (English). 
Eq.  Draft.    Equity  Draftsman  (Hughes's). 
Eq.  Judg.    Equity  Judgments   (by  A'Beckett)   New 
South  Wales. 

Eq.  Rep.  Equity  Reports;— Gilbert's  Equity  Re- 
ports;—Harper's  South  Carolina  Equity  Reports; — 
Equity  Reports,  English  Chancery  and  Appeals 
from  Colonial  Courts,  printed  by  Spottiswoode. 

Err.  &  App.  Error  and  Appeals  Reports,  Upper 
Canada. 

Ersk.    Erskine's    Institutes    of   the   Law   of    Scot- 
land ;— Erskine's  Principles  of  the  Law  of  Scotland. 
Ersk.  Dec.    Erskine's  United  States  Circuit  Court, 
etc.,   Decisions,   in   vol.   35  Georgia. 

Ersk.  Inst.  Erskine's  Institutes  of  the  Law  of 
Scotland. 

Erskine,  Inst.  Erskine's  Institutes  of  the  Law  of 
Scotland. 

E7sk.  Prin.  Erskine's  Principles  of  the  Law  of 
Scotland. 

Escriche  or  Escriche,  Die.  Leg.  Escriche,  Diccion- 
pxio  Razonado  de  Legislacion  y  Jurisprudencia. 

Esp.  or  Esp.  N.  P.    Espinasse's  English  Nisi   Prius 
Reports. 
Esp.  Ev.    Espinasse   on   Evidence. 
Esp.  N.  P.    Espinasse's  Nisi   Prius  Law. 
Esp.  Pen.  Ev.    Espinasse  on  Penal   Evidence. 
Esprit  des  Lois.    Montesquieu,    Esprit  des    Lois. 
Esq.    Esquire. 
Et  al.    Et  alii,   and  others. 
Eth.  Nic.    Aristotle,    Nicomachean   Ethics. 
Euer.    Euer's  Doctrina   Placitandi. 
Eunom.    Wynne's   Eunomus. 

Europ.  Arb.    European    Arbitration,     Lord    West- 
bury's   Decisions. 
Ev.    Evidence. 
Ev.  Tr.    Evans's  Trial. 

Evans.    Evans's    Reports,    Washington    Territory. 
Evans  Ag.    Evans  on  Agency. 
Evans  PI.    Evans  on  Pleading. 
Evans  Pothier.    Evans's  Pothier  on  Obligations. 
Evans  R.  L.    Evans's    Road    Laws   of   South    Caro- 
lina. 
Evans  Stat.    Evans's   Collection   of  Statutes. 
Evans  Tr.    Evans's  Trial. 
Ewell  Fixt.    Ewell  on  Fixtures. 
Ewell  Lead.  Cas.    Ewell's    Leading    Cases    on    In- 
fancy, etc. 
Ewell's  Evans  Ag.    Ewell's  Evans  on  Agency. 
Ew.  &  H.  Dig.  (Minn.).    Ewell  and  Hamilton's  Di- 
gest, Minnesota  Reports. 
Ex.    Exchequer   Reports,  English. 
Ex.  or  Exr.    Executor. 

Ex.  C.  R.    Exchequer  Court  of  Canada  Reports. 
Ex.  Com.    Extravagantes  Communes. 
Ex.  D.  or  Ex.  Div.    Exchequer      Division,      English 
Law  Reports. 
Exam.    The  Examiner. 

Exch.    Exchequer ;— Exchequer     Reports     (Welsby, 
Hurlstone,   &    Gordon) ;— English    Law    Reports,   Ex- 
chequer ;— English    Exchequer   Reports. 
Exch.  Can.    Exchequer  Reports,  Canada. 


Exch.  Cas.    Exchequer  Cases  (Legacy  Duties,  etc.), 
Scotland. 
Exch.  Chamb.    Exchequer  Chamber. 
Exch.  Div.    Exchequer  Division,  English  Law   Re- 
ports. 
Exch.  Rep.    Exchequer   Reports. 
Exec.    Execution.    Executor. 
Exp.    Ex   parte.    Expired. 
Expl.    Explained. 
Ex  rel.    Ex   relatione. 
Ext.    Extended. 

Exton  Mar.  Dicael.    Exton's    Maritime    Dicaelogle. 
Eyre.    Eyre's     Reports,     English     King's     Bench, 
temp.  William  III. 

F.  Federal  Reporter  ;— Fitzherbert's  Abridgment ; 
— Finalls  ;— Consuetudines  Feudorum  ;— Fitzherbert's 
Abridgment. 

F.  Abr.    Fitzherbert's  Abridgment  is  commonly  re- 
ferred to  by  the  other  law  writers  by  the  title  and 
number  of  the  placita  only,  e.  g.  "coron,  30." 
F.  B.  C.     Fonblanque's  Bankruptcy   Cases. 
F.  B.  R.     Full  Bench  Rulings,  Bengal. 
F.  B.  R.  N.  W.  P.     Full   Bench   Rulings,   Northwest 
Provinces,  India. 

F.  C.      Faculty    of    Advocates    Collection,    Scotch 
Court  of  Session  Cases ; — Federal  Cases. 
F.  C.  R.     Fearne  on  Contingent  Remainders. 
F.  Diet.     Karnes    and    Woodhouselee's    Dictionary, 
Scotch  Court  of  Session  Cases. 
F.  N.  B.    Fitzherbert's  Natura  Brevium. 
F.  R.    Forum  Romanorum  ; — Federal  Reporter. 
F.  &  F.      Foster    and    Finlason's    Reports,    English 
Nisi   Prius. 

F.  &  Fitz.  Falconer  and  Fitzherbert's  English 
Election  Cases. 

F.  &  J.  Bank.  De  Gex.  Fisher  &  Jones'  English 
Bankruptcy  Reports. 

F.  &  O.     Fox    and    Smith's    Reports,    Irish    King's 
Bench. 
F.  &  W.  Pr.     Freud  and  Ward's  Precedents. 
Foe.  Col.     Faculty  of  Advocates  Collection,  Scotch 
Court   of   Session    Cases. 

Fair},  or  Fairfield.     Fairfield's   Reports,  vols.  10-12 
Maine. 
Falc.  Falconer's  Reports,  Scotch  Court  of  Session. 
Falc.  &  Fitz.     Falconer   and   Fitzherbert's   English 
Election  Cases. 

Fam.  Cas.  Cir.  Ev.  Famous  Cases  of  Circumstan- 
tial Evidence,  by  Phillips. 

Far.     Farresley's  Reports,   English  King's   Bench, 
Modern  Reports,  vol.  7. 
Far.  or  Farr.     Farresley  (see  Farresley). 
Farr  Med.  Jur.     Farr's  Elements  of  Medical  Juris- 
prudence. 

Farresley.    Farresley's  Reports,  vol.  7  Modern  Re- 
ports ;— Farresley's    Cases    in    Holt's    King's    Bench 
Reports. 
Farw.  Pow.    Farwell  on  Powers. 
Faw.  L.  &  T.      Fawcett's     Landlord     and     Tenant. 
Fearne  Rem.     Fearne   on   Contingent    Remainders. 
Fed.     The  Federalist ;— Federal  Reporter. 
Fed.  Ca.  or  Fed.  Cas.    Federal  Cases. 
Fed.  Cas.  No.     Federal   Case  Number. 
Fed.  R.  or  Fed.  Rep.    The  Federal  Reporter,  all  U. 
S.  C.  C.  &  D.  C.  and  C.  C.  A.  Cases,  St.  Paul,  Minn. 
District,  Circuit  and  Circuit  Court  of  Appeals  Re- 
ports. 
Fell  G-uar.    Fell  on  Mercantile  Guarantees. 
Fent.  (New  Zealand).     Fenton's  New  Zealand  Re- 
ports. 

Fent.  Imp.  Judg.     Fenton's   Important    Judgments, 
New  Zealand. 
Fent.  N.  Z.    Fenton's  New  Zealand  Reports. 
Fer.  Fixt.  or  Ferard,   Fixt.     Amos    and   Ferard    on 
Fixtures. 

Ferg.  or  Ferg.  Cons.  Fergusson's  Reports,  Scotch 
Consistorial   Court. 

Ferg.  M.  &  D.  Fergusson  on  Marriage  and  Di- 
vorce. 

Ferg.  Proc.  Ferguson's  Common  Law  Procedure 
Acts,    Ireland. 

Ferg.  Ry.  Cas.  Ferguson's  Five  Years'  Railway 
Cases. 

Fergusson.  (Fergusson  of)  Kilgerran's  Scotch  Ses- 
sion Cases. 


ABBREVIATION 


41 


ABI 


Fern.  Dec.     Decretos  del  Fernando,   Mexico. 

Ferr.  Hist.  Civ.  L.     Ferriere's  History  of  the  Civil 
Law. 

.  Mod.     Ferriere's  Dictlonnaire  de  Droit  et  de 
Pratique. 

■re.     Ferriere's  Dictlonnaire   de    Droit  et  de 
Pratique. 

Fess.  lJat.  or  Fesscn,  Pat.    Fessenden  on  Patents. 

Feud.  Lib.     The  Book  of  Feuds.     See  this  diction- 
ary, s.  v.  "Liber  Feudorum." 

Ff.     PandectaB   (Juris  Clvills)  ;— Pandects   of   Jus- 
tinian. 

Fi.  fa.    Fieri  facias. 

Field  Com.  Law.      Field    on    the   Common    Law   of 
England. 

Id  Corp.     Field  on  Corporations. 
1  Ev.    Field's  Law  of  Evidence,  India. 

Field  Int.  Code.    Field's  International  Code. 

Field  Ten.  L.     Field's   Penal  Law. 

Fil.     Filigcr's   Writs. 

Fin.     Finch's   English    Chancery   Reports  ;— Flnla- 
eon   (see  Flnl.). 

Fin.  Law.     Finch's  Law. 

Fin.  Pr.     Finch's   Precedents   in   Chancery. 

Fin.  Ren.     Finlay  on  Renewals. 

Finch.     English  Chancery  Reports  tempore  Finch. 

Finch  Cas.  Cont.    Finch's  Cases  on  Contract. 

Finch  Ins.  Dig.     Finch's  Insurance  Digest. 

Finch  L.  C.     Finch's   Land   Cases. 

Finl.  Dig.    Finlay's  Digest  and  Cases,  Ireland. 

FtnZ.  L.  C.     Flnlason's  Leading  Cases  on  Pleading, 
etc. 

Finl.  Mart.  L.     Finlason  on   Martial  Law. 

Finl.  Rep.    Flnlason's  Report  of  the  Gurney  Case. 

Finl.  Ten.     Finlason  on  Land  Tenures. 

t  pt.Edw.  III.    Part  II  of  the  Year  Books. 

First  pt.  II.  VI.     Part  VII  of  the  Year  Books. 

Fish.    Fisher's  United  States  Patent  Cases ;— Fish- 
er's United  States  Prize  Cases. 

Fish.  Cas.     Fisher's   Cases,   United   States  District 
Courts. 

Fish.  Cop.    Fisher  on  Copyrights. 

Fish.  Dig.     Fisher's  Digest,  English  Reports. 

Fish.  Mort.  or  Fish.  Mortg.     Fisher  on  Mortgages. 

Fish.  Pat.  or  Fish.  Pat.  Cas.    Fisher's  United  States 
Patent  Cases. 

Fish.  Pat.  Rep.    Fisher's  Patent  Reports,  U.  S.  Su- 
preme and  Circuit  Courts. 

Fish.  Pr.  Cas.  or  Fish.  Prize.     Fisher's  Prize  Cases, 
U.    S.    Courts,   Penna. 

Fitz.  or  Fitz.  Abr.      Fitzherbert's    Abridgment    (see 
F.  &  Fitz.). 

Fitz.  N.  D.     Fitzherbert's  Natura  Brevium. 

Fitzg.    Fitzgibbon's  English  King's  Bench  Reports. 

Fitzh.  Abr.     Fitzherbert's  Abridgment. 

Fitzh.   N.   B.   or  Fitzh.   Nat.   Brev.       Fitzherbert's 
New  Natura  Brevium. 

Fl.     Fleta  ;— Flanders  (see  Fland.)  ;—Commentari- 
us  Juris  Anglicani. 

Fl.  d  K.  or  Fl.  d  Kel.      Flanagan    &    Kelly's    Irish 
Rolls    Court    Reports. 

Fla.      Florida  ;— Florida   Reports. 

Flan.  d  K.  or  Flan.  &  Kcl.      Flanagan    and    Kelly's 
Reports,  Irish  Rolls  Court. 

Fland.  Ch.  J.     Flanders's  Lives  of  the   Chief  Jus- 
tices. 

Fland.  Const.     Flanders  on   the   Constitution. 

Fland.  Fire  Ins.     Flanders  on  Fire  Insurance. 

Fland.  Mar.  L.     Flanders  on  Maritime  Law. 

Fland.  Ship.    Flanders  on  Shipping. 

FI  Co.    FIcta,  Commentarius  Juris  Anglicani. 

Flip,  or  Flipp.       Flippin's     United     States     Circuit 
Court   Reports. 

Flor.     Florida  ;— Florida  Reports. 

x  Dr.  Int.    Foelix's  Droit  International  Priv6. 

Fogg.     Fogg's  Reports,  vols.  32-37  New  Hampshire. 

Fol.      Folio ;— Foley's    Poor    Laws    and    Decisions, 
English. 

Fol.  Diet.     Karnes   and    Woodhouslee's  Dictionary, 
Seoteh  Court  of   Session  Cases. 

Poor  L.     Foley's  Poor   Laws   and   Decisions, 
English. 

Fohv.  Laws.    Folwell's  Laws  of  the  United  States. 

Fonb.  Eq.     Fonblanque's  Equity. 


Fonb.  Med.  Jur.  Fonblanque  on  Medical  Jurispru- 
dence. 

Fonb.  N.  R.      Fonblanque's    New    Reports, 
Bankruptcy. 

Fonblanque's      Equity ;— Fucblanque      on 
Medical   Jurisprudence  ;— Fonblanque's  ."■ 
English  Bankruptcy. 

Fonbl.  Eq.     Fonblanque's  Equity. 

Fonbl.  R.      Fonblanque's    English    Cases    (or 
Reports)    In   Bankruptcy. 

Foote  Int.  Jur.  Foote  on  Private  International  Ju- 
risprudence. 

For.  Forrest's  Exchequer  Reports ;— Forrester's 
Chancery  Reports   (Cases  tempore  Talbot). 

For.  Cas.  d  Op.     Forsyth's  Cases  and  Opinions. 

For.  de  Laud.  Fortescue's  de  Laudibus  Legum  An- 
gliae. 

For.  Pla.     Brown's  Formulae  Placlta 

Foran  C.  C.  P.  Q.  Foran's  Code  of  Civil  Procedure, 
Quebec. 

Forb.    Forbes's  Decisions,  Scotch  Court  of  Session. 

Forb.  Inst.  Forbes's  Institutes  of  the  Law  of 
Scotland. 

Form.     Forman's  Reports,   Illinois. 

Forman.    Forman's  Reports,  Illinois. 

Form.  Pla.     Brown's  Formulas  Placitandl. 

Forr.  or  Forrest.  Forrest's  English  Exchequer  Re- 
ports ;— Forrester's  English  Chancery  Cases  (com- 
monly cited,  Cases  tempore  Talbot). 

For.  Cas.  &  Op.  or  Fors.  Cas.  d  Op.  Forsyth's  Cases 
and  Opinions  on  Constitutional  Law. 

Fors.  Comp.    Forsyth's  Composition  with  Creditors. 

Fors.  His.     Forsyth's  History  of  Trial  by  Jury. 

Fors.  Trial  by  Jury.  Forsyth's  History  of  Trial  by 
Jury. 

Fort,  or  Fortes.  Fortescue's  English  King's 
Bench    Reports. 

Fortes,  de  Laud.  Fortescue  de  Laudibus  Legum 
Anglice. 

Forum.  The  Forum,  by  David  Paul  Brown  ;— For- 
um (periodical).     Baltimore  and  New  York. 

Forum  L.  R.     Forum  Law  Review,    Baltimore. 

Foss,  Judg.     Foss's  Judges  of  England. 

Fost.     Foster's  English  Crown  Law  or  Crown  Cas- 
es ;— Foster's  New  Hampshire  Reports,  vols.  19,  and 
21-31 ;— Foster's    Legal   Clhronicle   Reports,    P 
vania  ;— Foster's    Reports,    vols.   5,   6  and   8   Hawaii. 

Fost.  (N.  H.).  Foster's  Reports,  New  Hampshire, 
vols.  19  and  21-31. 

Fost.  Cr.  Law.     Foster,    Crown  Law. 

Fost.  Elcm.  or  Fost.  Jur.  Foster's  Elements  of  Ju- 
risprudence. 

Fost.  S.  F.  or  Fost.  on  Sci.  Fa.  Foster  on  the  Writ 
of  Scire  Facias. 

Fost.  d  Fin.  Foster  and  Finlason's  Reports,  Eng- 
lish  Nisi  Prius  Cases. 

Foster.  Foster's  English  Crown  Law ;— Legal 
Chronicle  Reports  (Pennsylvania),  edited  by  Foster; 
—Foster's  New  Hampshire  Reports. 

Fount.  Fountainhall's  Reports,  Scotch  Court  of 
Session. 

Fowl.  L.  Cas.  Fowler's  Leading  Cases  on  Col- 
lieries. 

Fo.x.  Fox's  Decisions,  Circuit  and  District  Court, 
Maine  (Haskell's  Reports)  ;— Fox's  Reports,  English. 

Fox  Reg.  Ca.  or  Fox  Reg.  Cas.  Fox's  Registration 
Cases. 

FoxdSm.  Fox  &.  Smith's  Reports,  Irish  King's 
Bench. 

•  Fr.  Fragment,  or  Excerpt,  or  Laws  in  Titles  of 
Pandects ;— Freeman's  English  Kings  Bench  and 
Chancery  Reports  ;— Fragm- 

Fr.Ch.  Freeman's  English  Chancery  Reports; 
Freeman's  Mississippi  Chancery  Reports. 

Fr.  E.  C.     Fraser's  Election   Cases. 

Fr.  Ord.     French   Ordinances. 

Fra.  Max.     Francis's  Maxims  of  Equity. 

Fran.  Char.     Francis's  Law  of   Charities. 

Fran.  Max.     Francis's  Maxims  of  Eq:. 

Franc,  or  Franc.  J udg.  Franclllon's  Judgments, 
County   Courts. 

France.     France's  Reports,  vols.  3-11  Colorado. 

Fras.  Dom.  Rel.  Frasex  on  Personal  and  Domestic 
Relations. 


ABBREVIATION 


42 


ABBREVIATION 


Fras.  El.  Cas.  or  Fras.  Flee.  Cas.  or  Fraser.  Fra- 
ser's  English  Cases  of  Controverted  Elections. 

Fraz.  or  Fraz.  Adm.  Frazer's  Admiralty  Cases, 
Scotland. 

Fred.  Code.     Frederician  Code,  Prussia. 

Free.  Freeman's  English  King's  Bench  Reports, 
vol.  1  Freeman's  King's  Bench  Reports  and  vol.  2 
Freeman's  Chancery  Reports.     See  also  Freem. 

Free.  Ch.  Freeman's  English  Chancery  Reports; 
—Freeman's  Mississippi  Chancery  Reports. 

Freem.  (111.).     Freeman's  Reports,  Illinois. 

Freem.  C.  C.  or  Freem.  Ch.  Freeman's  Reports, 
English  Chancery.    (2d  Freeman.) 

Freem.  Compar.  Politics.  Freeman,  Comparative 
Politics. 

Freem.  Coten.  &  Par.  Freeman  on  Cotenancy  and 
Partition. 

Freem.  Ex.     Freeman  on  Executions. 

Freem.  (111.).    Freeman's  Reports,  Illinois. 

Freem.  Judg.     Freeman  on  Judgments. 

Freem.  K.  B.  Freeman's  Reports,  English  King's 
Bench.     (1st  Freeman.) 

Freem.  (Miss.).  Freeman's  Chancery  Reports, 
Mississippi. 

French.     French's  Reports,  New  Hampshire. 

Fries  Tr.    Trial  of  John  Fries   (Treason). 

Frith.     Opinions  Attorneys-General,   pt.  2,  vol.  21. 

Fry  Cont.  Fry  on  the  Specific  Performance  of 
Contracts. 

Full  B.  R.  Full  Bench  Rulings,  Bengal  (or  North- 
west Provinces). 

Fuller.    Fuller's  Reports,  vols.  59-105  Michigan. 

Fult.  or  Fulton.     Fulton's    Reports,    Bengal. 

G.  Gale's  Reports,  English  Exchequer;— King 
George;  thus  1  G.  I.  signifies  the  first  year  of  the 
reign  of   King  George  I. 

G.  B.    Great    Britain. 

G.  Coop,  or  Cooper.    G.  Cooper's  English  Chancery. 

G.  Gr.    George   Greene's   Reports,   Iowa. 

G.  M.  Dudl.    G.   M.   Dudley's  Reports,  Georgia. 

G.  O.    General  Orders,  Court  of  Chancery,  Ontario. 

G.  8.    General   Statutes. 

G.  d  D.  Gale  &  Davison's  Reports,  English  Ex- 
chequer ;— Gale  &  Davison's  English  Queen's  Bench 
Reports. 

G.  d  G.    Goldsmith    &   Guthrie,   Missouri. 

G.&J.  Gill  &  Johnson's  Maryland  Reports;— Glyn 
&   Jameson's   English    Bankruptcy   Reports. 

G.  d  T.  Gould  &  Tucker's  Notes  on  Revised  Stat- 
utes of  United   States. 

Ga.    Georgia  ; — Georgia  Reports. 

Ga.  Dec.    Georgia  Decisions,  Superior  Courts. 

Ga.  L.  J.    Georgia   Law   Journal. 

Ga.  L.  Rep.    Georgia    Law    Reporter. 

Ga.  Supp.    Lester's    Supplement,    vol.    33   Georgia. 

Gab.  Cr.  L.    Gabbett's    Criminal    Law. 

Gaii.    Gaii  Institutionum  Commentarii. 

Gains.    Gaius's  Institutes. 

Gal.  Gallison's  Reports,  United  States  Circuit 
Courts. 

Galb.  Galbraith's  Reports,  Florida  Reports,  vols. 
9-12. 

Galb.  d  M.  Galbraith  &  Meek's  Reports,  Florida 
Reports,    vol.    1-. 

Galbraith.    Galbraith's  Reports,  vols.  9-12  Florida. 

Gale.    Gale's  Reports,  English  Exchequer. 

Gale  E.  or  Gale,  Easem.    Gale   on    Easements. 

Gale  Stat.    Gale's  Statutes  of  Illinois. 

Gale  d  Dav.  Gale  &  Davison's  Queen's  Bench  Re- 
ports. 

Gale  &  W.    Gale  and  Whatley  on  Easements. 

Gall,  or  Gallis.  Gallison's  Reports,  United  States 
Circuit  Courts. 

Gall.  Cr.  Cas.  Gallick's  Reports  of  French  Crim- 
inal Cases. 

Gall.  Hist.  Col.  Gallick's  Historical  Collection  of 
French   Criminal   Cases. 

Gall.  Int.  L.    Gallaudet  on  International  Law. 

Gamb.  &  Barl.    Gamble    &    Barlow's   Digest,    Irish. 
Gantt  Dig.    Gantt's  Digest  Statutes,  Arkansas. 

Gard.  N.  Y.  Rept.     Gardenier's  New  York  Reporter. 

Garden,  or  Gardenhire.  Gardenhire's  Reports,  Mis- 
souri. 

Gardn.  P.  C.  or  Gardn.  P.  Cas.  Gardner  Peerage 
Case,  reported  by  Le  Marchant. 


Gaspar.  Gaspar's  Small  Cause  Court  Reports, 
Bengal. 

Gay.  (La.).    Gayarre's    Louisiana   Reports. 

Gayarre.  Gayarre's  Reports,  vols.  25-28  Louisi- 
ana Annual. 

Gaz.  B.  or  Gaz.  Bank.  Gazette  of  Bankruptcy,  Lon- 
don. 

Gaz.  Dig.  Gazzam's  Digest  of  Bankruptcy  Deci- 
sions. 

Gaz.  &  B.  C.  Rep.  or  Gaz.  d  Bank.  Ct.  Rep.  Gaz- 
ette &    Bankrupt  Court   Reporter,   New  York. 

Gazz.  Bank.    Gazzam  on   Bankruptcy. 

Geld,  d  M.  Geldart  &  Maddock's  English  Chan- 
cery   Reports,    vol.    6    Maddock's    Reports. 

Geld,  d  O.  or  Geld,  d  Ox.  (Nova  Scotia).  Geldert 
and  Oxley's  Decisions,  Nova  Scotia. 

Geld.  &  R.    Geldert  &   Russell,  Nova  Scotia. 

Geldart.  Geldart  &  Maddock's  English  Chancery 
Reports,   vol.   6   Maddock's    Reports. 

Gen.  Arb.    Geneva  Arbitration. 

Gen.  Abr.  Cas.  Eq.  General  Abridgment  of  Cases 
in  Equity  (Equity  Cases  Abridged). 

Gen.  Dig.  General  Digest  American  and  English 
Reports. 

Gen.  Laws.    General    Laws. 

Gen.  Ord.  General  Orders,  Ontario  Court  of  Chan- 
cery. 

Gen.  Ord.  Ch.  or  Gen.  Ord.  in  Ch.  General  Orders 
of  the  English  High   Court  of  Chancery. 

Gen.  Sess.    General    Sessions. 

Gen.  St.    General   Statutes. 

Gen.  Term.    General   Term. 

Geo.  Georgia  ;— Georgia  Reports;— King  George 
(as  13  Geo.    II.). 

Geo.  Coop.  George  Cooper's  English  Chancery 
Cases,    temp.   Eldon. 

Geo.  Dec.    Georgia  Decisions. 

Geo.  Dig.    George's  Mississippi  Digest. 

Geo.  Dig.    George's  Digest,   Mississippi. 

Geo.  Lib.    George  on   Libel. 

George.    George's  Reports,  Mississippi. 

Ger.  Real  Est.    Gerard    on    Titles    to    Real    Estate. 

Gib.  Cod.  Gibson's  Codex  Juris  Ecclesiastici  An- 
glicani. 

Gib.  Dec.    Gibson's    Scottish  Decisions. 

Gibb.  D.  d  N.  Gibbons  on  Dilapidations  and  Nui- 
sances. 

Gibbon,  Rom.  Emp.  Gibbon,  History  of  the  De- 
cline and  Fall  of  the  Roman  Empire. 

Gibbs.    Gibbs's    Reports,    Michigan. 

Gibbs  Jud.  Chr.    Gibbs's    Judicial   Chronicle. 

Gibs.    Gibson's  Decisions,   Scotland. 

Gibs.  Camd.  Gibson's  [edition  of]  Camden's  Bri- 
tannia. 

Gibson.  (Gibson  of)  Durie's  Decisions,  Scotch 
Court  of   Session. 

Gif.  or  Gift-  Giffard's  English  Vice-Chancellors's 
Reports. 

Gif.  d  Fal.  Gilmour  &  Falconer's  Scotch  Session 
Cases. 

Giff.    Giffard's    Reports,    English    Chancery. 

Giff.  &  H.  Giffard  and  Hemming's  Re-ports,  Eng- 
lish Chancery. 

Gil.  Gilfillan's  Edition,  vols.  1-20  Minnesota ; — 
Gilman's  Reports,  vols.  6-10  Illinois;— Gilmer's  Vir- 
ginia Reports; — Gilbert's  English  Chancery  Re- 
ports;—Gilbert's  English  Cases  in  Law  and  Equity. 

Gilb.    Gilbert's    Reports,    English    Chancery. 

Gilb.  Cas.  Gilbert's  Cases  in  Law  and  Equity, 
English   Chancery   and   Exchequer. 

Gilb.  Ch.    Gilbert's  Reports,  English  Chancery. 

Gilb.  Ch.  Pr.    Gilbert's  Chancery  Practice. 

Gilb.  C.  P.    Gilbert's  Common  Pleas. 

Gilb.  Com.  PI.    Gilbert's  Common  Pleas. 

Gilb.  Dev.    Gilbert    on    Devices. 

Gilb.  Dist.    Gilbert   on   Distress. 

Gilb.  Eq.  Gilbert's  English  Equity  or  Chancery 
Reports. 

Gilb.  Ev.    Gilbert's  Evidence. 

Gilb.  Ex.    Gilbert  on    Executions. 

Gilb.  Exch.    Gilbert's   Exchequer. 

Gilb.  For.  Rom.    Gilbert's   Forum    Romanum. 

Gilb.  K.  B.    Gilbert's   King's  Bench. 

Gilb.  Lex  Prce.    Gilbert's   Lex   Pretoria. 

Gilb.  Railw.  L.    Gilbert's   Railway  Law. 

Gilb.  Rem.    Gilbert   on   Remainders. 


ABBREVIATION 


43 


• 


Gilb.  Rents.    Gilbert  on   Rents. 

Gilb.  Rep.  Gilbert's  Reports,  English  Chancery. 
lb.  Repl.    Gilbert   on    Replevin. 

Gilb.  Ten.    Gilbert    on    Tenures. 

Gilb.  U.  or  Gilb.  Uses.    Gilbert  on  Uses  and  Trusts. 

Gild.  (N.M.J.  Gildersleeve's  New  Mexico  Reports, 
fan.    Gilflllan's  Edition  of  Minnesota  Reports. 

GUI.    Gill's    Reports,    Maryland. 

Gill  Pol.  Rep.  Gill's  Police  Court  Reports,  Bos- 
ton,  Mass. 

Gill  ci-  J.  or  Gill  £  Johns.  (Md.).  Gill  &  Johnson's 
Reports,  Maryland. 

Gihn.  Gilmau's  Reports,  vols.  6-10  Illinois; — Gil- 
mer's Reports,  Virginia  ;— Gilmour's  Reports,  Scotch 
Court  of  Session. 

Gilm.  Dig.    Oilman's   Digest,   Illinois   and  Indiana. 

Gihn.  (III.).    Oilman's   Reports,    Illinois. 

Gihn.  (Va.).    Gilmer's    Reports,    Virginia. 

Gilm.  dc  Fal.or  Gilm.  &  Fale.  Gilmour  and  Fal- 
coner's  Reports,  Scotch   Court   of  Session. 

Gilp.  Gilpin's  United  States  District  Court  Re- 
ports. 

Gilp.  Opin.  Gilpin's  Opinions  of  the  United  States 
Attorneys-General. 

Gir.  IV.  C.    Girard  Will  Case. 

Gl.    Glossa;    a  gloss  or  interpretation. 

Gl.dJ.  Glyn  &  Jameson's  English  Bankruptcy 
Reports. 

Glan.  lib.  Glanville,  De  Legibus  et  Consuetudinl- 
bus   Augliae. 

Glanv.  or  Glanvil.  Glanville,  De  Legibus  et  Con- 
suetudinibus  Angliaa. 

Glanv.  El.  Ca.  or  Glanv.  El.  Cas.  Glanville's  Elec- 
tion   Cases. 

Glas.  or  Glasc.  Clascock's  Reports  in  all  the 
Courts  of  Ireland. 

Glassf.    Glassford  on  Evidence. 

Glenn.    Glenn's    Reports,    Louisiana   Annual. 

Glov.  Mun.  Corp.  Glover  on  Municipal  Corpora- 
tions. 

Glyn  d  Jam.  Glyn  and  Jameson's  Bankruptcy 
Cases,    English. 

Go.    Goebel's   Probate  Court  Cases. 

Godb.    Godbolt's    Reports,    English    King's    Bench. 

Godd.  Eas.    Goddard  on   Easements. 

Godef.  d  S.  Godefroi  and  Shortt  on  Law  of  Rail- 
way Companies. 

Godo.  Godolphin's  Abridgment  of  Ecclesiastical 
Law  ; — Godolpbin  on  Admiralty  Jurisdiction  ;— Go- 
dolphin's  Orphan's  Legacy;— Godolphin's  Repertori- 
um  Cauonicum. 

Godol.  Ecc.  Law  or  Godolph.  Godolphin's  Abridg- 
ment   of    Ecclesiastical    Law. 

Godolph.  Adm.  Jur.  Godolphin  on  Admiralty  Ju- 
risdiction. 

Godolph.  Leg.    Godolphin's   Orphan's  Legacy. 

Godolph.  Rep.  Can.  Godolphin's  Repertorium  Ca- 
nonicum. 

Gods.  Pat.    Godson  on  Patents. 

Gocb.  or  Goeb.  Prob.  Ct.  Cas.  Goebel's  Probate 
Court  Cases. 

Gog.  Or.    Goguet's    Origin   of    Laws. 

Goirand.    Goi rand's  French  Code  of  Commerce. 

Gold,  or  Goldcs.  Goldusborough's  or  Gouldsbor- 
ough's  English  King's  Bench  Reports. 

Gold,  d  G.  Goldsmith  &  Guthrie's  Reports,  vols. 
36-67    Missouri    Appeals. 

Goldes.  Goldesborough's  Reports,  English  King's 
Bench. 

Golds.  Eq.    Goldsmith's    Equity    Practice. 

Good.  Pat.    Goodeve's  Abstract   of   Patent  Cases. 

Good,  d  Wood.  Full  Bench  Rulings,  Bengal,  edit- 
ed by  Goodeve  &   Woodman. 

Gord.  Dig.  Gordon's  Digest  of  the  Laws  of  the 
U.   S. 

Gord.  Tr.    Gordon's  Treason  Trials. 

Gordon.  Gordon's  Reports,  vols.  21-26  Colorado 
and  vols.   10-13   Colorado  Appeals. 

Gosf.  Gosford's  Manuscript  Reports,  Scotch  Court 
of  Session. 

Goad.  R.  L.    Goudsmit's  Roman  Law. 

Gould.  Gouldsborough's  English  King's  Bench  Re- 
ports. 

Gould,  PI.    Gould  on  Pleading. 

Gould  dT.  Gould  &  Tucker's  Notes  on  Revised 
Statutes  of  United  States. 


Gouldsb.    Gouldsborough's  Repor-  II  h  King's 

Bench. 

Gourick's      Washington     Digest 

Guw  or  Gow  N.  P.    Gow's    Nisi    Prius    i 
lish. 

Gow  Part.    Gow   on   Partnership. 

Gr.    Grant's    Cases,    Pennsylvania;— Green' 
Jersey    Reports;   —    Greeuleaf's    Maine    !. 
Grant's  Cases,  Canada ;— Grant's  Chancery  Reports, 
Ontario. 

:.  or  Gr.  Cas.    Grant's  Cases,   Pennsyh 
h.orGr.Eq.     (H-    W.)    Green's    . 
Equity    Reports; — Gresley's    Equity 

Gra.    Grant  (see  Grant)  ; — Graham's  Report 
98-139  Georgia. 

Grah.  Pr.    Graham's   Practice. 

Grah.  d  Wat.  N.  T.    Graham  &   Waterman  o 
Trials. 

Grain  Hip.    Grain's  Ley  Hlpotecaria,  of  Spain. 

Grand  Cuu.  or  Grand  Cuut.     Grand 
idie. 

.  or  Granger.    Granger's   Reports,   vols.    22-23 
Ohio   State. 

'.    Grant's  Upper   Canada   Chancery    Reports 
Ontario; — Grant's    Pennsylvania    Cases;— (Gr; 
Elchies's    Scotch    Session    Cases;— Grant's    Jamaica 
Reports. 

Grant  Bank.    Grant  on    Banking. 

Grant  Cas.    Grant's   Cases,   Pennsylvania   Supreme 
Court. 

Grant  Ch.    Grant's    Upper    Canada    Chancery    Re- 
ports. 

Grant  Ch.  Pr.    Grant's  Chancery  Practice. 

Grant  Corp.    Grant  on  Corporations. 

Grant  E.  dc  A.    Grant's  Error  and  Appeal   Reports, 
Ontario. 

Giant  (Jamaica).    Grant's  Jamaica   Reports. 

Grant  Pa.    Grant's    Cases,    Pennsylvania    Supreme 
Court. 

Grant  U.  C.    Grant's  Upper  Canada  Chancery  Re- 
ports. 

Grat.  or  Gratt.    Grattan's  Virginia  Reports. 

Grac.  de  Jur.  Nat.  Gent.    Gravina,    de    Jure    Natu- 
rale   Gentium,   etc. 

•         in.    Gravina,   Originum   Juris    Civilis. 

Gray.    Gray's  Massaeluisetts   Reports;— Gray's  Re- 
ports, vols.  112-122  North  Carolina. 

Gray  Cas.  Prop.    Gray's  Cases   on   Property. 

Gray  Perp.    Gray  on  Perpetuities. 

Gray's  Inn  J.    Gray's  Inn  Journal. 

Grayd.  F.    Graydon's  Forms. 

Greav.  R.  C.  or  Greav.  Russ.    Greave's     Edition     of 
Russell  on  Crimes. 

Green.    Green's   New    Jersey    Law   or   Equity   Re- 
ports;—Green's  Reports,  vols.   11-17  Rhode  Is! 
.G.     Greene's     Iowa     Reports;— Greenleaf's     Reports, 
vols.  1-9  Maine;— Green's  Reports,  vol.  1  Oklahoma. 

Green  Bag.    A   legal    Journal,    Boston. 

Green  C.  E.    C.    E.    Green's    Reports,    New    Jersey 
Equity,  vols.  16-27. 

Green  Ch.  or  Green  Eq.    Green's  Chancery  Reports, 
New  Jersey  Equity,  vols.   2-4. 

Green  Cr.  L.  Rep.    Green's  Criminal    Law   Reports. 
U.  S. 

Green  L.  or  Green  N.  J.    Green's  Law  Reports,  New 
Jersey  Law,  vols.  13-15. 

G  "Cas.    Greenleaf's   Overruled   Cases. 

Green  (R.  I.).    Green's     Reports,      Rhode      Island, 
vol.    11. 

Green  Sc.  Cr.  Cas.    Green's   Criminal    Cases,    Scot- 
land. 

Green  Sc.  Tr.    Green's  Scottish  Trials  for  Tr- 

4  //.    Greenwood   &    Horwood's    Conveyanc- 
ing. 

G.  Greene's  luwa  Reports; — C.  E.  Green's 
New  Jersey  Equity  Rep  irts,  vols.  16-27  New  Jersey 
Equity  .  Reports,  vol.   7  New  York  Anno- 

tated  »'. 

Greene's    Iowa    Reports. 
'.Hh.    Gr.  •  Shipping    Law  Manual. 

il.    Greenleaf's   Reports,   vols.   1-9   Maine. 

Greenl.  Cr.  or  Greenl.  Cruise.      Greenleaf's     Cruise 
on  Real  Property. 

Greenl.  Ev.    Greenleaf  on  Evidence. 

Grc<.nl.  Uv.  Cos.    Greenleaf's  Overruled  Cases. 


ABBREVIATION 


44 


ABBREVIATION 


Green's  Brice's  U.  V.  or  Green's  Brice,  Ultra  Vires. 
Green's  Edition  of  Brice's  Ultra  Vires. 

Greenw.  Courts.    Greenwood  on  Courts. 

Greenw.  &  M.    Greenwood  &  Martin's  Police  Guide. 

Grein.  Dig.    Greiner's  Digest,    Louisiana. 

Gren.  or  Gren.  (Ceylon).     Grenier's  Ceylon  Reports. 

Gresl.  Eq.  Ev.    Gresley's    Equity   Evidence. 

Grey  Deb.    Grey's   Debates   in  Parliament. 

Grif.  L.  Reg.  Griffith's  Law  Register,  Burlington, 
New  Jersey. 

Grif.  P.  R.  Cas.      Griffith's  English  Poor  Rate  Cases. 

Griff.  Cr.  Griffith  on  Arrangements  with  Credi- 
tors. 

Griff.  Ct.  Mar.    Griffith  on  Courts-Martial. 

Griff.  Inst.    Griffith's  Institutes  of  Equity. 

Griff.  L.  R.  Griffith's  Law  Register,  Burlington, 
N.  J. 

Griff.  Pat.  Cas.    Griffin's  Abstract  of  Patent  Cases. 

Griffith.  Griffith's  Reports,  vols.  1-5  Indiana  Ap- 
peals and  vols.  117-132  Indiana. 

Grimke  Ex.  Grimke  on  Executors  and  Adminis- 
trators. 

Grimke  Just.    Grimke's  Justice. 

Grimke  P.  L.  Grimke's  Public  Laws  of  South  Car- 
olina. 

Grisw.  (O.).    Griswold's   Reports,   Ohio. 

Grisio.  Und.  T.  B.  Griswold's  Fire  Underwriters' 
Text  Book. 

Gro.  or  Gro.  B.  et  P.,  or  Gro.  de  J.  B.  or  Grot,  or 
Grot,  de  Jur.  B.  Grotius,  De  Jure  Belli  et  Pacis. 
.     Grot.  Dr.  de  la  Guer.    Grotius  Le  Droit  de  la  Guerre. 

Gude  Pr.  Gude's  Practice  on  the  Crown  Side  of 
the   King's   Bench. 

Guern.  Eq.  Jur.  Guernsey's  Key  to  Equity  Juris- 
prudence. 

Guizot,  Hist.  Civilization.  Guizot,  General  History 
of  Civilization   in   Europe. 

Guizot,  Rep.  Govt.  Guizot,  History  of  Representa- 
tive Government. 

Gundry.  Gundry  Manuscripts  in  Lincoln's  Inn 
Library. 

Gath.  Sh.  Cas.  Guthrie's  Sheriff  Court  Cases, 
Scotland. 

Guthrie.  Guthrie's  Reports,  vols.  33-83  Missouri 
Appeals. 

Guthrie.    Guthrie's  Sheriff  Court  Cases,  Scotland. 

Guy,  Med.  Jur.    Guy  on  Medical  Jurisprudence. 

Guy  Reper.    Guy's  Repertoire  de  la  Jurisprudence. 

Guyot,  Inst.  Food.    Guyot,  Institutes  Feodales. 

Gwil.  Ti.  Cas.  or  Gwill.    Gwillim's   Tithe    Cases. 

H.  Howard's  United  States  Supreme  Court  Re- 
ports ;— Hill's  New  York  Reports  ;— Hilary  Term  ;— 
King  Henry ;  thus  1  H.  I.  signifies  the  first  year 
of  the  reign  of  King  Henry  I. 

h.  a.     Hoc  anno. 

H.  Bl.  or  H.  Bla.  Henry  Blackstone's  English 
Common   Pleas  Reports. 

H.  C.    House  of  Commons. 

H.  C.  R.     High  Court  Reports,   India. 

H.  C.  R.  N.  XV.  P.  High  Court  Reports,  Northwest 
Provinces,  India. 

H.  E.  C.    Hodgin's  Election  Cases,  Ontario. 

H.  H.  C.  L.     Hale's   History  of    the  Common   Law. 

H.  H.  P.  C.    Hale's  History,  Pleas  of  the  Crown. 

H.  L.     House  of   Lords. 

H.  L.  C.  or  H.  L.  Cas.  House  of  Lords  Cases 
(Clark's). 

H.  L.  F.     Hall's    Legal   Forms. 

H.  L.  Rep.  Clark  and  Finnelly's  House  of  Lords 
Reports,   New  Series. 

H.  P.  C.  Hale's  Pleas  of  the  Crown  ;— Hawkins' 
Pleas  of  the  Crown. 

H.  T.    Hilary  Term. 

h.  t.     Hoc  titulum,  or  hoc  titulo. 

7i.  v.    Hoc  verbum,  or  his  verbis. 

H.  W.  Gr.  H.  W.  Green's  New  Jersey  Equity  Re- 
ports. 

H.  &  B.  Hudson  &  Brooke's  Irish  King's  Bench 
Reports. 

H.  &  C.  Hurlstone  &  Coltman's  English  Exchequer 
Reports. 

H.  &  D.     Lalor's    Supplement   to   Hill   and  Denio's 
Reports,  New  York. 
H.  &  Disb.  Pr.    Holmes  and  Disbrow'a  Practice. 


H.  &  G.  Harris  &  Gill's  Maryland  Reports ;— Hurl- 
stone  &  Gordon's  English  Reports. 

H.  &  H.  Horn  &  Hurlstone's  English  Exchequer 
Reports  ;— Harrison  &  Hodgin's  Municipal  Reports, 
Upper  Canada. 

H.  &  J.  Harris  &  Johnson's  Maryland  Reports  ; — 
Hayes  &  Jones's  Exchequer  Reports,   Ireland. 

H.  &  J.  Forms.  Hayes  and  Jarman's  Forms  of 
Wills. 

H.  &  J.  It.  Hayes  and  Jones's  Reports,  Irish  Ex- 
chequer. 

H.  &  M.  Hening  &  Munford's  Virginia  Reports  ; — 
Hemming  &  Miller's  English  Vice-Chancellors'  Re- 
ports. 

H.  &  M.  Ch.  Hemming  &  Miller's  English  Vice- 
Chancellors'  Reports. 

H.  &  McH.  Harris  &  McHenry's  Maryland  Re- 
ports. 

H.  &  N.    Hurlstone  and  Norman's  Reports,  English 
Exchequer. 
H.  &  P.     Hopwood  and  Philbrick's  Election  Cases. 
H.  &  R.    Harrison  &  Rutherford's  English  Common 
Pleas  Reports. 
H.  &  S.     Harris  and  Simrall's  Mississippi  Reports. 
H.  &  T.    Hall  and  Twell's  Reports,  English  Chan- 
cery. 

H.  &  T.  Selj-Def.  Horrigan  &  Thompson's  Cases 
on  the  Law  of  Self-Defense. 

H.  &  W.      Harrison   &  Wollaston's   English   King's 
Bench    Reports ;— Hurlstone   &    Walmsley's    English 
Exchequer  Reports. 
Ha.     Hare's   Chancery  Reports  ;— Hall ; — Haggard. 
Ha.  &  Tw.      Hall    and     Twell's    Reports,    English 
Chancery. 
Hab.  Corp.     Habeas  Corpus. 
Hab.  fa.  poss.    Habere  facias  possessionem. 
Hab.  fa.  seis^    Habere  facias  seisinam. 
Had.     Haddington  ;— Hadley's   Reports,    vols.    45-48 
New  Hampshire. 

Hadd.  or  Haddington.  Haddington's  Reports, 
Scotch  Court  of  Session. 

Hadl.  Hadley's  Reports,  vols.  45-48  New  Hamp- 
shire. 

Hadl.  Int.  R.  L.  or  Hadl.  Rom.  Law.  Hadley's  In- 
troduction to  the  Roman  Law. 

Hadley.    Hadley's  Reports,  vols.  45-48  New  Hamp- 
shire. 
Hag.  Adm.    Haggard's  English  Admiralty  Reports. 
Hag.  Con.     Haggard's  English  Consistory  Reports. 
Hag.  Ecc.     Haggard's    English    Ecclesiastical    Re- 
ports. 
Hag.  (Utah).     Hagan's  Utah   Reports. 
Hag.  (W.  Va.).     Hagan's  Reports,   West  Virginia. 
Hagan.    Hagan's  Reports,  vols.  1-2  Utah. 
Hagans.    Hagans's    Reports,    vols.   1-5    West   Vir- 
ginia. 
Hagg.     See  Hag. 

Hagg.  Adm.  Haggard's  Admiralty  Reports,  Eng- 
lish. 

Hagg.  Con.  or  Hagg.  Consist.  Haggard's  Consistory 
Reports,   English. 

Hagg.  Ecc.  Haggard's  Ecclesiastical  Reports,  Eng- 
lish. 

Hagn.&M.  (Md.).  Hagner  and  Miller's  Maryland 
Reports. 

Hailes.     Hailes's  Decisions,   Scotch  Court  of   Ses- 
sion. 
Hailes  Ann.    Hailes's  Annals  of  Scotland. 
Haines  Am.  L.  Man.    Haines's  American  Law  Man- 
ual. 
Hal.  Law.    Halsted's  New  Jersey  Law  Reports. 
Hale.   Cas.  or  Hale.  Min.   Cas.    Halcomb's  Mining 
Cases,  London,  1826.' 
Hale.    Hale's  Reports,  vols.  33-37  California- 
Hale  Anal.     Hale's  Analysis  of  the  Law. 
Hale  C.  L.  or  Hale  Com.  Law.      Hale's    History    of 
the  Common  Law. 
Hale,  De  Jure  Mar.    Hale,  De  Jure  Maris. 
Hale  Ecc.     Hale's  Ecclesiastical   Reports,   English. 
Hale,  Hist.  Eng.  Law.     Hale's  History  of  the  Eng- 
lish Law. 

Hale  Jur.  H.  L.     Hale's  Jurisdiction  of  the  House 
of    Lords. 
Hale  P.  C.    Hale's  Pleas  of  the  Crown. 


ABBREVIATION 


45 


ABBREVIATION 


Hale  Prec.  Hale's  Precedents  in  (Ecclesiastical) 
Criminal   Cases. 

Hale  Sum.    Hale's  Summary  of  Pleas. 

I/alk.  Halkerston's  Compendium  of  Scotch  Facul- 
ty Decisions ;— Halkerston's  Digest  of  the  Scotch 
Marriage  Law  ;— Halkerston's  Latin  Maxims. 

Halle.  Comp.  Halkerston's  Compendium  of  Scotch 
Faculty   Decisions. 

Hulk.  Dig.  Halkerston's  Digest  of  the  Scotch  Mar- 
riage Law. 

Halle.  Lat.  Max.     Halkerston's  Latin  Maxims. 

Hall.  Hall's  New  York  Superior  Court  Reports;— 
Hall's  Reports,  vols.  66,  57  New  Hampshire  ;— Hal- 
loa's  Reports,  vols.  1,  2  Colorado. 

Uall  Adm.     Hall's   Admiralty   Practice. 

Hull  Am.  L.  J.    American  Law  Journal  (Hall's). 

Hall.  (Col.).     Hallett's  Colorado  Reports. 

Hull,  (joust.  Hist.  Hallam's  Constitutional  History 
of   England. 

Hall,  Emeriy.  Mar.  Loans.  Hall,  Essay  on  Mari- 
time Loans  from  the  French  of  Emerlgon. 

Hull,  Int.  Law.     Hall   on   International    Law. 

Hull  Jour.    Journal  of  Jurisprudence    (Hall's). 

Hall  L.J.    American  Law  Journal  (Hall's). 

Hall.  Law  of  W.  Halleck's  International  Law  and 
Law  of  War. 

Hall,  Marit.  Loans.  Hall,  Essay  on  Maritime 
Loans   from  the   French  of   Emerlgon. 

Hall,  Mex.  Law.  Hall,  Laws  of  Mexico  Relating 
to  Real  Property,  etc. 

Hall.  Middle  Ages.     Hallam's  Middle  Ages. 

Hall  Neut.    Hall  on  Neutrals. 

Hall  (N.H.).     Hall's  New  Hampshire  Reports. 

Hall,  Profits  d  Prendre.  Hall,  Treatise  on  the  Law 
Relating  to  Profits  a  Prendre,  etc. 

Hall  Sea  Sh.    Hall  on  the  Sea  Shore. 

Hall  d  Tw.  Hall  and  Twell's  Reports,  English 
Chancery. 

Hallam.    Hallam's  Middle  Ages. 

Hallam's  Const.  Hist.  Hallam's  Constitutional  His- 
tory of  England. 

Hallam,  Mid.  Ages.    Hallam's  Middle  Ages. 

Hallett.  Hallett's  Reports,  Colorado  Reports,  vols. 
1-2. 

Hallifax,  Anal,  or  Hallifax  Civil  Law.  Hallifax's 
Analysis  of  the  Civil  Law. 

Hals,  or  Halst.  or  Halst.  L.  Halsted's  New  Jersey 
Law  Reports,  vols.  6-12. 

Halst.  Ch.  or  Halst.  Eq.  Halsted's  Chancery  Re- 
ports, New  Jersey  Equity. 

Halst.  Ev.  Halsted's  Digest  of  the  Law  of  Evi- 
dence. 

Ham.  Hammond's  Nisi  Prius ; — Hammond's  Re- 
ports, vols.  1-9  Ohio ;— Hamilton's  Reports,  Scotch 
Court  of  Session. 

Ham.  A.  d  0.  Hammerton,  Allen  &  Otter,  English 
Magistrates'  Cases,  vol.  3  New  Sessions  Cases. 

Ham.  N.  P.     Hammond's  Nisi   Prius. 

Ham.  Parties.     Hammond  on  Parties  to  Action. 

Hamel,  Cust.     Hamel's  Laws  of  the  Customs. 

Hamilton.  (Hamilton  of)  Haddington's  Manu- 
script Cases,  Scotch  Court  of  Session ; — Hamilton, 
American  Negligence  Cases. 

Hamlin.     Hamlin's  Reports,  vols.  81-99   Maine. 

Hamm.  A.  d  O.  Hamerton,  Allen  &  Otter's  Magis- 
trate Cases,  English  Courts,  vol.  3  New  Session 
Cases. 

Hamm.  F.  Ins.    Hammond  on  Fire  Insurance. 

Hamm.  (Ga.).    Hammond's    Reports,    Georgia. 

Hamm.  Insan.    Hammond  on   Insanity. 

Hamm.  (Ohio).    Hammond's   Reports,   Ohio. 

Hamm.  N.  P.    Hammond's  Nisi  Prius. 

Hamm.  Part.    Hammond  on   Parties  to  Action. 

Hamm.  PI.    Hammond's  Principles  of  Pleading. 

Hamm.  d  J.  Hammond  and  Jackson's  Reports, 
Georgia,    vol.  45. 

Hammond.  Hammond's  Reports,  vols.  1-9  Ohio;— 
Hammond's   Reports,  vols.  36-45  Georgia. 

Hammond  &  Jackson.  Hammond  &  Jackson's  Re- 
ports, vol.  45  Georgia. 

Han.    Handy's   Ohio    Reports  ; — Hannay's   Reports, 
New  Brunswick. 
Han.  Ent.    Hansard's  Entries. 
Han.  Horse.    Hanover  on  the  Law  of  Horses. 


Han.  (N.  B.).  Hannay's  Reports,  vols.  12,  13,  New 
Brunswick. 

Hand's    Reports,    vols.    40-45   New    York;— 
Handy's  Ohio  Reports. 

Hand  Ch.  Pr.    Hand's  Chancery  Practice. 

Hand  Cr.  Pr.    Hand's   Crown   Practice. 

Handy.    Handy's  Ohio   Reports. 

Hanes.    Hanes's  English   Chancery. 

Hanmer.  Hanmer's  Lord  Kenyon's  Notes,  Eng- 
lish King's  Bench. 

Uann.    Hannay's   Reports,  New  Brunswick. 

Hans.    Hansard's   Entries. 

Hans.  Pari.  Deb.  Hansard's  Parliamentary  De- 
bates. 

Hansb.  Hansbrough's  Reports,  vols.  76-90  Vir- 
ginia. 

Hanson.    Hanson  on  Probate  Acts,  etc. 

Har.  Harmonized; — Harrison  (see  Harr.)  ; — Har- 
rington's Chancery  Reports,  Michigan. 

Har.  (Del.).  Harrington's  Reports,  vols.  1-5  Del- 
aware. 

Har.  St.  Tr.    Hargrave's   State    Trials. 

Har.  d  G.  or  Har.  d  Gill.  Harris  and  Gill's  Re- 
ports, Maryland. 

Har.  d  J.  or  Har.  d  John.  (Md.).  Harris  and  John- 
son's   Reports,   Maryland. 

Har.  d  McH.  Harris  and  McHenry's  Reports,  Ma- 
ryland. 

Har.  d  Ruth.  Harrison  &  Rutherford's  English 
Common   Pleas   Reports. 

Har.  d  W.  or  Har.  d-  Woll.  Harrison  and  Wollas- 
ton's   Reports,   English   King's   Bench. 

Hare.  Harcase's  Decisions,  Scotch  Court  of  Ses- 
sion. 

Hard.    Hardres's  Reports,   English  Exchequer. 

Hard,  or  Hardin  (Ky.).  Hardin's  Reports,  Ken- 
tucky. 

Hard.  Stat.  L.  Hardcastle's  Construction  and  Ef- 
fect  of    Statutory    Law. 

llardes.    Hardesty,  Delaware  Term    Reports. 

Hardr.  or  Hardres.  Hardres's  English  Exchequer 
Reports. 

Hardw.  Cases  tempore  Hardwicke,  by  Rldgeway; 
— Cases  tempore  Hardwicke,  by  Lee. 

Hare.    Hare's  Reports,  English  Chancery. 

Hare  Const.    Hare  on  the  Constitution  of  the  U.  S. 

Hare  Dis.  or  Hare  Ev.  Hare  on  Discovery  of  Evi- 
dence. 

Hare  d  W.  or  Hare  d  Wal.  L.  C.  American  Leading 
Cases,  edited  by  Hare  &  Wallace. 

Harg.  Hargrave's  State  Trials ;— Hargrove's  Re- 
ports, vols.  68-75  North  Carolina. 

Harg.  C.  B.  M.  Hargrave's  Collection,  British  Mu- 
seum. 

Harg.  Co.  Litt.  Hargrave's  Notes  to  Coke  on  Lit- 
tleton. 

Harg.  Coll.  Hargrave's  Judicial  Arguments  and 
Collection. 

Harg.  Exer.  Hargrave's  Jurisconsult  Exercita- 
tions. 

Harg.  Jud.  Arg.    Hargrave's     Judicial    Arguments. 

Harg.  Law  Tr.  or  Harg.  Law  Tracts.  Hargrave's 
Law   Tracts. 

Harg.  Th.    Hargrave  on  the  Thellusson  Act. 

Harg.  St.  Tr.  or  Harg.  State  Tr.  Hargrave's  State 
Trials. 

rove.    Hargrove's   Reports,   vols.    6S-75   North 
Carolina. 

Hurl.C.B.M.  Harleian  Collection,  British  Mu- 
seum. 

Harm.  Harmon's  Reports,  vols.  13-15  California; 
— Harmon's   Upper  Canada  Common  Pleas   Reports. 

Harm.  (V.  C).  Harman's  Common  Pleas  Reports, 
Upper  Canatla. 

Harp,  or  Harp.  L.  or  Harp.  L.  S.  C.  Harper's  South 
Carolina   Law    Reports. 

Harp.  Con.  Cos.  Harper's  Conspiracy  Cases,  Ma- 
ryland. 

Harp.  Eq.  Harper's  Equity  Reports,  South  Caro- 
lina. 

Harp.  L.  or  Harp.  L.  S.  C.  Harper's  Law  Reports, 
South   Carolina. 

Harr.  Harrison's  Reports,  New  Jersey  Law  ;— 
Harrington's  Reports,  Delaware;  —  Harrington's 
Chancery     Reports,     Michigan ;— Harris's     Reports, 


ABBREVIATION  46 


ABBREVIATION 


vols.  13-24  Pennsylvania;— Harrison's  Reports,  vols. 
15-17   and  23-29  Indiana. 

Harr.Ch.    Harrison's    Chancery    Reports,    Michi- 
gan. 


'Harr.Ch.Pr.    Harrison's   Chancery  Practice. 

Harr.  Con.  La.  R.  Harrison's  Condensed  Louisi- 
ana   Reports. 

Harr   (Del.).    Harrington's   Reports,  Delaware. 

Harr.  Dig.  Harrison's  Digest  of  English  Common 
Law  Reports. 

Harr.  Ent.    Harris's  Book  of  Entries. 

Harr.  (Ind.).    Harrison's   Reports,  Indiana. 

Harr.  (Mich.).  Harrington's  Chancery  Reports, 
Michigan. 

Harr.  (N.J.) .  Harrisons  Reports,  New  Jersey 
Law,  vols.  16-19. 

Harr.  (Pa.).    Harris's  Reports,  Pennsylvania. 

Harr.  Proc.  Harrison's  Common  Law  Procedure 
Act. 

Harr  &  O.    Harris   and  Gill's   Reports,    Maryland. 

Harr.  &  Hodg.  Harrison  &  Hodgin's  Upper  Can- 
ada   Municipal    Reports. 

Harr.  &  J.  Harris  and  Johnson's  Reports,  Mary- 
land. ,  . 

Harr.  &  McH.    Harris     and      McHenry  s     reports, 

Maryland. 

Harr.  d  R.  or  Harr.  £  Ruth.  Harrison  and  Ruther- 
ford's  Reports,   English  Common  Pleas. 

Harr.  c£-  S.  or  Harr.  &  Sim.  Harris  and  Simrall  s 
Reports,  Mississippi,  vols.   49-52. 

Harr.  &  W.  or  Harr.  <&  Woll.  Harrison  and  Woll- 
aston's  Reports,  English  King's  Bench. 

Barring.  Harrington's  Delaware  Reports;— Har- 
rington's Michigan  Chancery  Reports. 

Harris.    Harris's     Reports,     vols.     13-24     Pennsyl- 
vania. 
Harris  Dig.    Harris's    Digest,    Georgia. 
Harris  <£■  Simrall.    Harris     &     Simrall's     Reports, 
rols.    49-52   Mississippi. 

Harrison.  Harrison's  Reports,  vols.  15-17  and  Zi- 
29  Indiana.  TT 

Hart.    Hartley's  Reports,  vols.  4-10  Texas ;— Hart- 
ley's Digest  of  Texas  Laws. 
Hart.  Dig.    Hartley's  Digest  of  Laws,  Texas. 
Hartley.    Hartley's   Reports,  vols.   4-10  Texas. 
Hartley  £  Hartley.    Hartley    &   Hartley's    Reports, 
vols.  11-21  Texas. 
Harv.  Law  Rev.    Harvard    Law    Review. 
Hask.    Haskell's    Reports,    United    States    Courts, 
Maine  (Fox's  Decisions). 
Hasl  Med.  Jur.    Haslam's    Medical    Jurisprudence. 
Hast.    Hastings's   Reports,   vols.   69,   70  Maine. 
Hast.  Tr.  Sp.    Speeches    in    the    trial    of    Warren 
Hastings,  Ed.  by  Bond. 
Hats  Pr.    Hatsell's  Parliamentary  Precedents. 
Hav.  Ch.  Rep.    Haviland's  Chancery  Reports,  Prince 
Edward   Island. 

Hav.  P.  E.  I.    Haviland's  Reports,    Prince   Edward 
Island. 

Haw.  Hawkins  (see  Hawk.)  ;— Hawaiian  Reports; 
— Hawley's  Reports,  vols.  10-20  Nevada. 

Haw.   Am.    Cr.  Rep.   or  Haw.    Cr.   Rep.    Hawley's 
American    Criminal   Reports. 
Haw.  W.  C.  or  Haw.  W.  Cas.    Hawes's     Will     Case. 
Hawaii  or  Haicaiian  Rep.    Hawaii     (Sandwich     Is- 
lands)  Reports. 
Hawk.    Hawkin's  Reports,  Louisiana  Annual. 
Hawk.  Abr.  or  Hawk.  Co.  Litt.      Hawkins's  Coke  up- 
on Littleton. 

Hawk.  P.  C.  or  Hawk.  PI.  Cr.    Hawkins  s    Pleas    of 
the   Crown. 
Hawk.  W.    Hawkins  on  Construction  of  Wills. 
Hawkins.    Hawkins's    Reports,   vols.   19-24    Louisi- 
ana Annual. 
Hawks.    Hawks's  North  Carolina   Reports. 
Hawl.  Cr.  R.    Hawley's    American     Criminal     Re- 
ports. 

Hawl.  or  Hawley  (Nev.).  Hawley's  Nevada  Re- 
ports and  Digest. 

Hawley  Cr.  R.  Hawley's  American  Criminal  Re- 
ports. 

Hay.  Haywood's  North  Carolina  Reports ;— Hay- 
wood's Tennessee  Reports  (Haywood's  Reports  are 
sometimes  referred  to  as  though  numbered  consecu- 
tively  from   North   Carolina    through   Tennessee);— 


Hayes's  Irish  Exchequer  Reports.  See  also  Hayes  ■ 
—Hayes's  Reports,  Calcutta;— Hay's  Scotch  Deci- 
sions. 

Hay  Ace.  or  Hay  Dec.  or  Hay  Ace.  Cas.     Hay's    De- 
cisions on   Accidents  and  Negligence. 
Hay  (Calc).    Hay's  Reports,  Calcutta. 
Hay.  Conv.    Hayes's   Conveyancer. 
Hay  Dec.    Hay's  Decisions  on  Accidents  and  Neg- 
ligence. 

Hay.  Est.  or  Hay.  TJ.  D.  &  T.    Hayes    on     the     Law 
of  Uses,   Devises,  and  Trusts,  with  reference  to  the 
Creation  and  Conveyance  of  Estates. 
Hay.  Exch.    Hayes's    Reports,    Irish   Exchequer. 
Hay.  Lim.    Hayes  on  Limitations. 
Hay  P.  L.    Hay's  Poor  Law  Decisions. 
Hay.  V.  D.  &  T.    Hayes  on  the   Law   of  Uses,   De- 
vises,   and    Trusts,    with  reference    to   the   Creation 
and  Conveyance  of  Estates. 

Hay.  &  H.  or  Hay.  &  Haz.    Hayward    &     Hazelton's 
United  States  Circuit  Court  Reports. 

Hay.  &  J.    Hayes   and   Jones's   Reports,  Irish   Ex- 
chequer. 
Hay.  &  J.  Wills.    Hayes  and  Jarman  on  Wills. 
Hay  &  M.  or  Hay  &  Marr.    Hay    &     Marriott's    Ad- 
miralty Reports   (usually  cited,  Marriott's  Reports). 
Hayes  or  Hayes  Exch.    Hayes's     Irish     Exchequer 
Reports. 
Hayes  Conv.    Hayes  on   Conveyancing. 
Hayes  &  Jo.   or  Hayes   &  Jon.    Hayes  &   Jones's 
Irish  Exchequer  Reports. 

Haynes   Lead.    Cas.     Haynes's    Students'    Leading 
Cases. 
Haynes,  Eq.    Haynes's  Outlines  of  Equity. 
Hays  R.  P.    Hays  on  Real  Property. 
Hayw.    Haywood's  North  Carolina  Reports;— Hay- 
wood's Tennessee   Reports  (see  Hay.). 
Hayw.  L.  R.  ■  Hayward's   Law    Register,   Boston. 
Hayw.  (N.C.).    Haywood's    Reports,   North    Caro- 
lina. 
Hayw.  (Tenn.).    Haywood's    Reports,   Tennessee. 
Hayio.  &  H.  or  Hayw.  &  H.  (D.  C).    Hayward  & 
Hazelton's  United  States  Circuit  Court  Reports. 
Haz.  Pa.  Reg.    Hazard's  Pennsylvania  Register. 
Haz.  U.  S.  Reg.     Hazard's   United   States   Register. 
Haz.  &  Roch.  M.  War.     Hazlitt  and  Roche  on  Mari- 
time Warfare. 
Head.     Head's  Reports,  Tennessee. 
Heard  Civ.  PI.     Heard's  Civil  Pleading. 
Heard  Cr.  L.     Heard's    Criminal    Law,    Massachu- 
setts. 
Heard  Cr.  PI.     Heard's  Criminal  Pleading. 
Heard  L.  &  SI.     Heard  on  Libel  and  Slander. 
Heath.     Heath's   Reports,  Maine. 
Heath  Max.     Heath's  Maxims. 

Heck.  Cas.    Hecker's  Leading  Cases  on  Warranty. 
Hedges.    Hedges's  Reports,  vols.  2-6  Montana. 
Hein.     Heineccius  Opera. 

Heinecc.  Ant.  Rom.     Heineccius  (J.   G.)    Antiquita- 
tum  Romanarum  (Roman  Antiquities.) 

Heinecc.  de  Camo.     Heineccius    (J.    G.)    Elementa 
Juris  Cambialis. 

Heinecc.  Elcm.     Heineccius   (J.    G.)   Elementa  Ju- 
ris Civilis  (Elements  of  the  Civil  Law.) 
Heisk.     Heiskell's  Reports,  Tennessee. 
Helm.     Helm's  Reports,  Nevada  Reports. 
Hem.    Hempstead,     United     States ;— Hemingway, 
Mississippi. 

Hem.  &  M.  or  Hem.  &  Mil.       Hemming    &     Miller's 
English  Vice-Chancellors'   Reports. 

Heniing.  (Miss.).      Hemingway's    Mississippi     Re- 
ports. 

Hemp.     Hempstead's   United  States  Circuit  Court 
Reports. 

Hempst.     Hempstead's  Reports,  U.   S.  9th  Circuit 
Ct.   Reports. 

Hen.     King  Henry  ;     thus  1   Hen.   I.    signifies  the 
first  year  of  the  reign  of  King  Henry  I. 

Hen.  Bl.  or  Hen.  Bla.    Henry   Blackstone's   English 
Common  Pleas  Reports. 
Hen.  For.  Law.    Henry  on  Foreign  Law. 
Hen.  La.  Dig.     Hennen's  Louisiana  Digest. 
Hen.  Man.  Cas.     Henry's  Manumission  Cases. 
Hen.  Va.  J.  P.     Hening's    Virginia   Justice   of    the 
Peace. 


ABBREVIATION 


47 


ABBRKVIATWX 


lien,  d  M.  or  Hen.  &  Mun.  (Va.).  Hening  &  Mun- 
ford's  Virginia  Reports. 

Hcpb.     Hepburn's    Reports,    vols.   3,    4    California. 

llcr.     Heme's  Pleader. 

tier.  Char.  U.     Heme's  Law  of  Charitable  Uses. 

tier.  E  .top.     Herman  on  Estoppel. 

Her.  Ex.    Herman  on  Executions. 

Her.  Ilmt.  or  Her.  Jur.  Heron's  History  of  Juris- 
prudence. 

Het.  or  Hetl.  Hetley's  English  Common  Pleas  Re- 
ports. 

Heyle  Imp.  D.  Heyle's  United  States  Import  Du- 
ties. 

Heyw.  Ca.    Heywood's  Table  of  Cases,  Georgia. 

;/'/.(•.  7  7.     Heywood   on   Elections. 

Hibb.     Hibbard's  Reports,  vol.  20  Opinions   Attor- 
neys-General ;— Hibbard's      Reports,      vol.      C7 
Hampshire. 

Hig.  Dig.  Pat.  Cos.  Hlggln's  Digest  of  Patent 
Cases. 

High.  Bad.     Highmore  on  Ball. 

High  Ct.  or  High  Ct.  R.  High  Court  Reports, 
Northwest  Provinces  of  India. 

High  Inj.     High  on    Injunction. 

Hi<jh  Leg.  Rem.     High  on   Legal   Remedies. 

High.  Lun.     Highmore  on   Lunacy. 

High.  Mortm.     Highmore  on   Mortmain. 

High  Rec.     High  on  Receivers. 

Hight.     HIght's  Reports,  vols.  57-58  Iowa. 

Hil.  T      Hilary  Term. 

Hildy  M.  Ins.     Hlldy  on  Marine  Insurance. 

Hill.  Hill's  New  York  Reports  ;— Hill's  Law  Re- 
ports,  South  Carolina. 

Hill.  Abr.  Hilliard's  Abridgment  of  the  Law  of 
Real    Property. 

Hill.  Am.  Jur.     Hilliard's  American  Jurisprudence. 

Hill.  Am.  Law.    Hilliard's  American  Law. 

Hill.  3.  &  Ins.  Hilliard  on  Bankruptcy  and  In- 
solvency. 

Hill  Ch.    Hill's  Chancery  Reports,  South  Carolina. 

Hill  Ch.  Pr.     Hill's  Chancery  Practice. 

Hill.  Contr.    Hilliard  on  Contracts. 

Hill  Eq.     Hill's  Equity.  South  Carolina  Reports. 

HillFixt.     Hill   on    Fixtures. 

Hill.  Inj.     Hilliard  on  Injunction. 

Hill.  Mort.     Hilliard   on    Mortgages. 

Hill.  N.T.ot  Hill.  New  Trials.  Hilliard  on  New 
Trials. 

Hill  (N.  Y.).     Hill's  Reports,   New  York. 

Hill.  R.  P.  or  Hill.  Real  Prop.  Hilliard  on  Real 
Property. 

Hill.  Sales.     Hilliard  on  Sales. 

Hill  3.  C.  Hill's  South  Carolina  Reports  (Law  or 
Equity). 

Hill.  Tax.    Hilliard  on  the  Law  of  Taxation. 

Hill.  Tort.     Hilliard  on  Torts. 

HillTr.     Hill  on  Trustees. 

Hill.  Vend.     Hilliard  on   Vendors. 

Hill  &  D.  or  Hill  &  Den.  (N.  Y.).  Hill  and  Denlo's 
New  York  Reports. 

Hill  <Sc  Den.  Sup.  or  Hill  &  Den.  Supp.  Lalor's  Sup- 
plement to  Hill  and  Denio's  Reports,  New  York. 

Uillyer.     Hillyer's  Reports,  California  Reports. 

Hilt.     Hilton's  Reports,  Common  Pleas,  New  York. 

Hind.  Pat.     Hfndemarch  on   Patents. 

Hinde  Ch.  Pr.  Hinde,  Modern  Practice  of  the 
High  Court  of  Chrnicery. 

Hines.     Hines's  Reports,  vols.  83-98  Kentucky. 

Ho.  Lord  Cas.     House  of  Lords  Cases  (Clark's). 

Hob.  Hobart's  Reports,  English  Common  Pleas 
and  Chancery. 

Hod.     Hodge's  Reports,  English  Common  Pleas. 

Hod.  Raihi:.     Hodge  on  the  Law  of  Railways. 

Hodg.     Hodges's  English   Common   Pleas   Reports. 

Uodg.   Can  El.   Cas.    (Out.). 

Hodgin's  Canada  Election  Cases. 

Hoff.  Hoffman '8  Land  Cases,  United  States  Dis- 
trict Court ;— Hoffman's  New  York  Chancery  Re- 
ports. 

Hoff.  Ch.  Hoffman's  New  York  Chancery  Re- 
ports. 

Hoff.  Ch.  Pr.    Hoffman's  Chancery  Practice. 

Hoff.  Ecc.  L.     Hoffman's   Ecclesiastical    Law. 

Hoff.  Land  or  Hoff.  Land  Ca.  or  Hoff.  L.  C.  Hoff- 
man's Land  Cases,  U.  S.  DlsL  Ct.  of  California. 


Hoff.  Lead.  Ca  or  /  Cas.    Hoffman's  Lead- 

ing  Cases,   Commercial    Law. 

Hoff.  Leg.  tit.     Hoffman's   Legal   Studies. 

Hoff.  Mas.  Ch.  or  Hoff.  Mast.     Hoffman  -  In 

Chancery. 

Hoff.  or  Hoff.  Ch.  (N.  Y.).  Hoffman's  Chancery  Re- 
ports,   New    York 

Hoff.  Oull.     Hoffman's   Outlines   of    Legal    81 

Hoff.  Pull.  Pap.      Hoffman's    Public    Paper.-. 
York. 

Huff.  Ref.     Hoffman  on   Referees. 

Hoffm.  Ch.      Hoffman's    New    York    Chancer, 
ports. 

Hog.      Hogan's    Irish    Rolls  Court  .  —  (Ho- 

gan  of)   Harcarse'8  Scotch  Session  Ca 

Hog.Bt.Tr.      Hogan's    Pennsylvania   State    Trials. 

Hague.      HogUr  :  Ida. 

Hole.  D.  <£  C'r.  Holcombe's  Law  of  Debtor  and 
Creditor. 

Hole.  L.  Cas.  Holcombe's  Leading  Cases  of  Com- 
mercial   Law. 

//' tic.  Dig.     Holcombe's  Di 

Eq.  Jur.      Holcombe's    Equity    Jurisprudence. 

//'//'•.  Lend.  Cas.      Holcombe's     Leading    Ca 
Commercial  Law. 

//--/.  Inst.     Holland's  Institutes  of  Justinian. 

Holl.  Jur.      Holland's    Elements    of    Jurisprudence. 

Holl.  or  Hollinshcad  (Minn.).  Holllnshead's  Min- 
nesota Reports. 

Holm,  or  Holmes.  Holmes's  United  States  Circuit 
Court  Reports ; — Holmes's  Reports,  vols.  15-17  Ore- 
gon. 

Hoi*.  Holt's  English  King's  Bench  Reports  :— 
Holt's  English  Nisi  Prlus  Reports ;— Holt's  English 
Equity    Reports. 

Holt  Adm.  or  Holt  Adm.  Cas.  Holt's  Admiralty 
Cases.     (Rule  of  thf   Road  at  Sea.) 

Holt  Ch.     Holt's  Equity  V.   C.   Court 

Holt  Eq.  or  Holt  Eq.  Rep.  Holt's  English  Equity 
Reports. 

Holt  K   B.     Holt's    English    King's    n»neh    R 

Holt.  L.  Die.    Holthouse's  Law   Dictionary. 

Holt  N.  P.  Holt's  Nisi  Prius  Reports.  English 
Courts. 

Holt  R.  of  R.  or  Holt  Rule  of  R.  Holt's  Rule  of  the 
Road  Cases. 

Holt  Sh.    Holt  on   Shipping. 

Holthouse  or  Holthouse  Die.  Holthouse's  Law  Dic- 
tionary. 

H'-ltr.  F.nr.  Holtzerdorff.  Encyclopedic  der  Rcchts- 
wissenscbaft.     (Encyclopedia  of  Jurisprudei 

Home  or  Home  TI.  Dec.    Home's    Manu 
sions,    Scotch    Court   of    Session.      See    also    Karnes. 

Hood  Ex.    Hood  on  Executors. 

Hook.OT  Hooker.     Hooker's     Reports,     Connecticut. 

Hoon.  or  Hoonahan.    Hoonahan's  Sind 
dia. 

Hop.  <f  C.  Honwood  &  Coltman's  English  Regis- 
tration Appeal  Cases. 

Hop.  A  Ph.  Hopwood  ft  Philbrlck's  English  Reg- 
istration  Appeal   C 

Hope.  Hope  (of  Kerse)  Manuscript  Decisions, 
Scotch   Court  of  Session. 

Hope  Min.  Pr.    Hope's    Minor   Practicks,    Scotland. 

Hopk.    Hopkinson's  TV 

Hopk.  Adm.  Hopkinson's  Pennsylvania  Admiral- 
ty Judgments. 

Hopk.  Adm.  Dec.    Admiralty  Decisions  of   I' 
son  in   Gilpin's  Reports. 

.  Ch.    Hopkins's  Chancery  Ri 
Judg.    Hopkinson's   P 
Judgments. 

Ins.    Hopkins    on    Marine    Insurance. 
or  Hopto.  d  Colt.     Hopwood     and      Colt- 
man's   English  Registratioii  .=es. 

Hopw.  A  P.  or  Hopvo.  ;  wood     and     Phil- 

brick's  English  Registration 

Hot.  &  Th.  Cos.    Horrlgan  &   Thompson's  Cases  on 
;•  use. 

>.  //.    Horn    and    Hurlstone'e    Reports,    Eng- 
lish Exchequer. 

Home  Mir.  or  Home  M.  J.  Home's  Mirror  of  Jus- 
■ 

Homer.  Homer's  Reports,  vols.  11-28  South  Da 
kota. 


ABBREVIATION 


48 


ABBREVIATION 


Eorr.  £  Th.  or  Horr.  &  T.  Cas.  Horrigan  &  Thomp- 
son's Cases  on   Self-Defense. 

Eorw.  Y.  B.  (H  or  wood's).     Year-Books  of  Edward  I. 

Hoskins.    Hoskins's  Reports,  vol.  2  North  Dakota. 

Houard  Any. -Sax.  Laws.  Houard's  Anglo-Saxon 
Laws  and  Ancient  Laws  of  the  French. 

Houard  Diet.  Houard's  Dictionary  of  the  Cus- 
toms of   Normandy. 

Hough  Am.  Con.  Hough  on  the  American  Consti- 
tution. 

Hough  C.  M.    Hough  on  Court  Martial. 

Hough  C.-M.  Cas.  Hough's  Court-Martial  Case 
Book,  London,  1821. 

Houghton.    Houghton's  Reports,   vol.   97  Alabama. 

Hous.    Houston's   Delaware  Reports. 

Hous.  Pr.  Housman's  Precedents  in  Conveyanc- 
ing. 

House  of  L.  House  of  Lords,  House  of  Lords 
Cases. 

Houst.    Houston's  Reports,  Delaware. 

Houst.  Cr.  Cas.  Houston's  Criminal  Cases,  Dela- 
ware. 

Houst.  on,  St.  in  Tr.  Houston  on  Stoppage  in  Tran- 
situ. 

Hov.  Hovenden  on  Frauds; — Hovenden's  Supple- 
ment to  Vesey,   Jr.'s,   English  Chancery  Reports. 

Hov.  Ft.    Hovenden  on   Frauds. 

Hov.  Sup.  or  Hov.  Sup.  Yes.  Hovenden's  Supple- 
ment to  Vesey,  Jr.'s,  English   Chancery   Reports. 

Hoved.    Hoveden,    Chronica. 

Hoio.  Howard's  United  States  Supreme  Court  Re- 
ports;— Howard's  Mississippi  Reports  ; — Howard's 
New  York  Practice  Reports ;— Howell's  Reports, 
vols.  22-26  Nevada. 

How.  App.  or  How.  App.  Cas.  Howard's  New  York 
Court  of  Appeals  Cases. 

How.  Cas.  Howard's  New  York  Court  of  Appeals 
Cases;— Howard's  Popery  Cases,  Ireland. 

How.  Cr.  Tr.    Howison's  Criminal  Trials,  Virginia. 

How.  (Miss.).    Howard's   Reports,    Mississippi. 

How.  (N.  Y.).  Howard's  Reports,  N.  Y.  Court  of 
Appeals. 

How.  N.  S.  Howard's  New  York  Practice  Reports, 
New  Series. 

How.  Pop.  Cas.    Howard's    Popery    Cases,    Ireland. 

How.  Pr.    Howard's    New   York    Practice    Reports. 

How.  Pr.  N.  S.  Howard's  New  York  Practice  Re- 
ports, New  Series. 

How.  Prac.  or  How.  Pr.  R.  (N.  Y.J.  Howard's  New 
York  Practice  Reports. 

Hoiv.  S.  C.  Howard's  United  States  Supreme  Court 
Reports. 

How.  St.  Tr.  or  How.  State  Tr.  Howell's  English 
State  Trials. 

How.  U.  S.  Howard's  Reports,  U.  S.  Supreme 
Court. 

How.  &  Beat.    Howell  &  Beatty's  Reports,  Nevada. 

How.  &  Nor.  Howell  &  Norcross's  Reports,  Ne- 
vada. 

Howe  Pr.    Howe's    Practice,    Massachusetts. 

Howell  N.  P.  Howell's  Nisi  Prius  Reports,  Michi- 
gan. 

Hu.  Hughes's  United  States  Circuit  Court  Re- 
ports ; — Hughes's   Kentucky    Reports. 

Hub.  Leg.  Dir.  or  Hub.  Leg.  Direc.  Hubbell's  Le- 
gal Directory. 

Hub.  Prazl.  J.  C.  Huber,  Praelectiones  Juris  Civ- 
ilis. 

Hubb.    Hubbard's    Reports,    Maine. 

Hubb.  Succ.    Hubback's    Evidence    of    Succession. 

Hubbard.    Hubbard's  Reports,  Maine. 

Hud.  &  B.  or  Hud.  &  Br.  Hudson  and  Brooke's  Re- 
ports, Irish  King's  Bench. 

Hud.  &  Will.  Dig.  (U.  S.).  Hudson  and  William's 
United  States  Digest. 

Hugh.  Hughes's  United  States  4th  Circuit  Court 
Reports; — Hughes's   Kentucky   Reports. 

Hugh.  Con.    Hughes's  Precedents  in  Conveyancing. 

Hugh.  Ent.    Hughes's  Book  of  Entries. 

Hugh.  Ins.    Hughes  on  Insurance. 

Hugh.  (Ky.).    Hughes's   Reports,   Kentucky. 

Hugh.  Wills.    Hughes  on  Wills. 
Hugh.  Writs.    Hughes  on   Writs. 
Hughes.    Hughes's  United  States  Circuit  Court  Re- 
ports. 
Hughs  Abr.    Hughs's   Abridgment, 


Hugo,  Hist,  du  Droit  Rom.  Hugo,  Histolre  du 
Droit   Romain. 

Hum.  (Tenn.).    Humphrey's    Tennessee   Reports. 

Hume.  Hume's  Decisions,  Scotch  Court  of  Ses- 
sion. 

Hume  Com.  or  Hume  Cr.  L.  Hume's  Commentaries 
on  Criminal  Law  of  Scotland. 

Hume,  Hist.  Eng.    Hume's  History  of  England. 

Humph.  (Tenn.).    Humphrey's  Reports,  Tennessee. 

Humph.  R.  P.    Humphrey   on    Real    Property. 

Hun.  Hun's  New  York  Supreme  Court  Reports, 
also  Appellate  Division  Supreme  Court,  New  York. 

Hunt  or  Hunt  Ann.  Cas.  Hunt's  Collection  of  An- 
nuity Cases. 

Hunt  Bound.  Hunt's  Lav7  of  Boundaries  and 
Fences. 

Hunt  Cas.    Hunt's  Annuity  Cases. 

Hunt,  Eq.    Hunt's  Suit  in  Equity. 

Hunt  Fr.  Conv.    Hunt  on  Fraudulent  Conveyances. 

Hunt  Mer.  Mag.  Hunt's  Merchants'  Magazine,  New 
York. 

Hunt.  Rom.  L.  or  Hunter,  Rom.  Law.  Hunter  on 
Roman  Law. 

Hunter,  Suit  Eq.  Hunter's  Proceeding  In  a  Suit 
in  Equity. 

Hur.    Hurlstone  (see  Hurl.). 

Hurd  Hab.  Corp.    Hurd  on  Habeas  Corpus. 

Hurd  Pers.  Lib.    Hurd  on  Personal   Liberty. 

Hurl.  &  C.  or  Hurl.  &  Colt.  Hurlstone  &  Coltman's 
English    Exchequer  Reports. 

Hurl.  &  Gord.  Hurlstone  &  Gordon's  Reports,  vols. 
10,  11  English  Exchequer. 

Hurl.  &  N.  or  Hurl.  6c  Nor.  Hurlstone  &  Norman's 
English  Exchequer  Reports. 

Hurl.  &  Walm.  Hurlstone  &  Walmsley's  English 
Exchequer    Reports. 

Hurlst.  &  G.  Hurlstone  and  Coltman's  Reports, 
English  Exchequer. 

Hurlst.  &  G.  Hurlstone  and  Gordon's  Reports, 
English  Exchequer. 

Hurlst.  &  N.  Hurlstone  and  Norman's  Reports, 
English   Exchequer. 

Hurlst.  &  W.  Hurlstone  and  Walmsley's  Reports, 
English  Exchequer. 

Husb.  Mar.  Worn.    Husband    on    Married    Women. 

Hust.  L.  T.  Huston  on  Land  Titles  in  Pennsyl- 
vania. 

Hut.    Hutton's    Reports,    English    Common    Pleas. 

Hutch.    Hutcheson's   Reports,   vol.   81   Alabama. 

Hutch.  Car.    Hutchinson  on  Carriers. 

Hutt.    Hutton's    English    Common    Pleas    Reports. 

Hux.  Judg.    Huxley's  Judgments. 

Hyde.    Hyde's  Reports,  India. 

I.  Idaho; — Illinois; — Indiana; — Iowa; — Irish  (see 
Ir.); — The   Institutes   of  Justinian. 

/.  A.    Irish  Act. 

I.  C.  C.    Interstate  Commerce  Commission  Reports. 

I.  C.  L.  R.    Irish   Common   Law   Reports. 

I.  C.  R.  Irish  Chancery  Reports ; — Irish  Circuit 
Reports. 

I.  E.  R.    Irish  Equity  Reports. 

/.  J.  C.  or  I.  J.  Cas.  Irvine's  Justiciary  Cases, 
Scotch   Justiciary  Court. 

I.  Jur.    Irish   Jurist,   Dublin. 

I.  Jur.  N.  S.    Irish   Jurist,    New   Series,   Dublin. 

L  L.  T.    Irish  Law  Times,   Dublin. 

I.  O.  U.    I  owe  you. 

I.  P.    Institutes   of   Polity. 

J.  R.    Irish  Reports. 

I.  R.  G.  L.    Irish  Reports,  Common  Law  Series. 

J.  R.  Eq.    Irish  Reports,  Equity  Series. 

I.  R.  R.    Internal  Revenue  Record,   New  York. 

I.  T.  R.  Irish  Term  Reports,  by  Ridgway,  Lapp 
and    Schoales. 

la.    Iowa;— Iowa  Reports. 

lb.  or  Id.    Ibidem  or  Idem,  The  same. 

Ida.  or  Idaho.    Idaho;— Idaho    Reports. 

Iddings  T.  R.  D.    Iddings's    Dayton    Term   Reports. 

II  Cons,  del  Mar.  II  Consolato  del  Mare.  See 
Consolato  del  Mare,  in  the  body  of  this  work. 

III.    Illinois  ;— Illinois   Reports. 

III.  App.    Illinois  Appellate  Court  Reports. 

Imp.  C.  P.    Impey's  Practice,  Common   Pleas. 

Imp.  Fed.    Imperial    Federation,   London. 

Imp.  K.  B.    Impey's   Practice,   King's   Bench. 

Imp.  PL    Impey's  Pleader's  Guide. 


ABBREVIATION 


49 


ABBREVIATION 


Imp.  Pr.  C.  P.    Impcv'n  Practice  In  Cowmon  Pleas. 

Imp.  Pr.  K.  B.    Impey's  Practice   !n  King's  Bench. 

Imp  Sh.    Impey's  Office  of   Sheriff. 

In  Dom.  Proc.  In  the  House  of  Lords.  See  Dom. 
Proc. 

In  f.  In  fine.  At  the  end  of  the  title,  law,  or 
paragraph   quoted. 

In  pr.  In  principlo.  At  the  beginning  of  a  law, 
before  the  first  paragraph. 

In  sum.    In   summa.     In  the  summary. 

Ind.  Indiana;— Indiana  Reports  ;— India;— (East) 
Indian. 

Ind.  A  pp.  Law  Reports,  Indian  Appeals;— Indiana 
Appeals. 

Ind.  App.  Sup.  or  Ind.  App.  Supp.  Indian  Appeals 
Supplement,   P.    C. 

Ind.Jur.  Indian  Jurist,  Calcutta ;— Indian  Jurist, 
Madras. 

Ind.  L.  Mag.    Indiana   Law  Magazine. 

Ind.  L.  Ii.     (East)   Indian   Law   Reports. 

Ind.  L.  R.  All.  or  Ind.  L.  R.  Alia.  Allahabad  Se- 
ries of  Indian  Law  Reports. 

Ind.  L.  R.  Bomb.  Indian  Law  Reports,  Bombay 
Series. 

Ind.  L.  R.  Calc.  Indian  Law  Reports,  Calcutta  Se- 
ries. 

Ind.  L.  R.  Mad.  Indian  Law  Reports,  Madras  Se- 
ries. 

Ind.  L.  Reg.    Indiana  Legal   Register,   Lafayette. 

Ind.  L.  Rep.    Indiana  Law  Reporter. 

Ind.  Rep.    Indiana   Reports;— Index   Reporter. 

Ind.  Super.  Indiana  Superior  Court  Reports  (Wil- 
son's). 

Ind.  T.  Indian  Territory;— Indian  Territory  Re- 
ports. 

Inder.  Com.  L.  Indermaur's  Principles  of  the 
Common  Law. 

.  L.  C.  Com.  L.    Indermaur's     Leading     Com- 
mon  Law  Cases. 

Inder.  L.  C.  Eq.  Indermaur's  Leading  Equity 
Cases. 

Index  Rep.    Index    Reporter. 

Inf.    Infra.    Beneath  or  below. 

Ing.  Dig.  Ingersoll's  Digest  of  the  Laws  of  the 
U.    B. 

Ing.  Roc.    Ingersoll's  Roccus. 

Ing.  Ves.    Ingraham's  edition  of  Vesey,  Jr. 

Ingr.  Insolv.     Ingraham  on    Insolvency. 

Inj.    Injunction. 

Ins.    Insurance.    Insolvency. 

Ins.  L.  J.  Insurance  Law  Journal,  New  York  and 
St.  Louis. 

Ins.  L.  Mon.    Insurance    Law    Monitor    New   York. 

Ins.  Rep.    Insurance  Reporter,  Philadelphia. 

Inst.  Institutes ;  when  preceded  by  a  number 
denoting  a  volume  (thus  1  Inst.),  the  reference  is  to 
Coke's  Institutes;  when  followed  by  several  num- 
bers (thus  Inst.  4,  2,  1),  the  reference  Is  to  the  In- 
stitutes of  Justinian. 

1,  t,  Inst.     (1,   2)    Coke's  Inst. 

Inst. ,  1,  S,  S.    Justinian's  Inst.    lib.  1,  tit.  2,  S   3. 

Inst.,  1,  2,  SI.  Justinian's  Institutes,  lib.  1,  tit. 
2,  §  31. 

The  Institutes  of  Justinian  are  divided  Into  four 
books,— each  book  is  divided  into  titles,  and  each 
title  into  paragraphs,  of  which  the  first,  described 
by  the  letters  pr.,  or  princip.,  is  not  numbered.  The 
old  method  of  citing  the  Institutes  was  to  give  the 
commencing  words  of  the  paragraph  and  of  the 
title  ;  e.  g.,  §  si  advcrsus,  Inst,  de  Nuptiis.  Some- 
times the  number  of  the  paragraph  was  introduced, 
e.  g.,  §  12,  si  advcrsus,  Inst,  de  Nuptiis.  The  mod- 
ern way  is  to  give  the  number  of  the  book,  title, 
and  paragraph,  thus;— Inst.  I.  10,  12;  would  be  read 
Inst.,  Lib.  I.  tit.  10,  §  12. 

Inst.  Cler.    Instructor   Clericalis. 

Inst.  Com.  Com.  Interstate  Commerce  Commission 
Reports. 

Inst.  Epil.  Epilogue  to  [a  designated  part  or  vol- 
ume of]  Coke's  Institutes. 

Inst.  Jur.  Angl.  Institutiones  Juris  Anglicanl,  by 
Doctor    Cowell. 

Inst.  Proem.  Proeme  [introduction]  to  [a  designat- 
ed part  or  volume  of]  Coke's   Institutes. 

Instr.  Cler.    Instructor   Clericalis. 

BOUV.— 4 


Int.  Case.    Rowe's  Interesting  Cases,    English  and 
Irish. 

Int.  Com.  Rep.    Interstate  Commerce  Reports. 

Int.  Private  Law.    Westlake's  Private  Inte: 
al  Law. 

Int.  Rev.  Rec.     Internal  Revenue  Record,  New  Yori. 

Iowa.    Iowa  Reports. 

Iowa  Univ.  L.  Bui.    Iowa  University  Law  E 

Ir.    Irish;— Ireland  ;— Iredell's  North  Carol'; 
or   Equity   Reports. 

Ir.  Ch.  or  Ir.  Ch.  N.  S.    Irish    Chancery    Reports. 

Ir.  Cir.  or  Ir.  Cir.  Rep.    Irish   Circuit  Reports. 

Ir.   C.    L.    or  Ir.   Com.   Law   Rep.   or   Ir.   L. 
Irish  Common   Law  Reports. 

Ir.  Eccl.    Irish  Ecclesiastical  Reports,  by  Mllward. 

Ir.  Eq.    Irish  Equity  Reports. 

Ir.Jur.    Irish    Jurist,   Dublin. 

Ir.  L.    Irish  Law  Reports. 

Ir.  L.  N.  S.    Irish  Common   Law  Reports. 

Ir.  L.  R.    Irish    Law    Reports;— The    Law    Reports, 
Ireland,  now  cited  by  the  year. 

Ir.  Law  Rec.    Irish  Law  Recorder. 

Ir.  Law  Rep.    Irish   Law  Reports. 

Ir.  Law  Rep.  N.  S.    Irish    Common     Law     Reports. 

Ir.  L.  T.    Irish  Law  Times   and   Solicitors's   Jour- 
nal,  Dublin. 

Ir.  L.  T.  Rep.    Irish  Law  Times  Reports. 

Ir.  Law  d  Ch.    Irish  Law  and  Equity  Reports,  New 
Series. 

Ir.  Law  d  Eq.    Irish  Law  and  Equity  Reports,  01 1 
Series. 

//.  ft.  C.  L.     Irish  Reports,  Common  Law  Series. 

Ir.  R.  Eq.    Irish   Reports,   Equity   Series. 

Ir.  R.  Reg.  App.    Irish    Reports,    Registration    Ap- 
peals. 

Ir.  R.  Reg.  d  L.  or  Ir.  Reg.  d  Land   Cos.    Ir: 
Registry  and  Land  Cases. 

Ir.  lop.  Reg.  App.    Irish  Reports,   Registration  Ap- 
peals. 

Ir.  Rep.  Reg.  d  L.    Irish     Reports,     Registry     and 
Land  Cases. 

Ir.  St.  Tr.    Irish  State  Trials   (Ridgeway's). 

Ir.  T.  R.  or  Ir.  Term  Rep.    Irish  Term  Reports    (by 
Ridgeway,  Lapp   &   Sehoales). 

Ired.    Iredell's  North  Carolina  Law  Reports. 

Ired.  Dig.    Iredell's  Digest. 

Ired.  Eq.    Iredell's    Equity    Reports,    North    Caro- 
lina. 

Ired.  L.    Iredell's    Law    Reports,    North    Ca  r 

Irv.    Irvine's   Justiciary   Cases,   Scotch   Justiciary 
Court 

Iv.  Ersk.     Ivory's    Notes    on    Erskine's    InstituU-. 

Ir.R.189Jb.    Irish   Law    Reports   for   year   1894. 

J.    Justice  ; — Institutes     of     Justinian  ; — Johnson's 
New  York  Reports. 

J.  Adv.  Gen.    Judge  Advocate  General. 

J.  C.    Johnson's  Cases,  New  York  Supreme  Court ; 
— Juris  Consultus. 

J.  C.  P.    Justice  of  the  Common  Pleas. 

J.  Ch.  or  J.  C.  R.     Johnson's    New    York    Chancery 
Reports. 

J.  d'Ol.     Les  Jugemens  d'Oleron. 

J.etJ.     De  Justitia  et  Jure. 

J.  Olo.    Juncta  Glossa. 

J.  H.     Journal  of  the   House. 

JJ.     Justices. 

J.  J.  Mar.  or  J.  J.  Marsh.  (Ky.).      J.    J.    Marshall's 
Reports,  Kentucky. 

J.  K.  B.     Justice   of   the   King's    Bench. 

J.  Kel.     Sir  John    Kelyngs   English  Crown   Cases. 

J.  P.     Justice  of  the  1' 

J.  P.  Sm.     J.  P.  Smith's  English  King's  Bench  Re- 
ports. 

J.  Q.  B.     Justice  of  the  Queen's  Bench. 

J.  R.     Johnson's  New   York   Reports. 

J.  S.  Or.  (N.J.J.     J.    S.    Green's    New    Jersey    Re- 
ports. 

J.  Scott.      Reporter    English    Common    Bench    Re- 
ports. 

J.  U.  B.     Justice  of  the  Upper  Bench. 

./.  Voct,  Coin,  ad  Pand.     Voet   (Jan),  Commentarlus 
ad  Pandectas. 

J.  <i  II.     Johnson  and  Hemming's  Reports,  English 
Chancery. 


ABBREVIATION 


50 


ABBREVIATION 


J.  &  L.  or  J.  &  La  T.  Jones  &  La  Touche's  Irish 
Chancery    Reports. 

J.  <&,  S.  Jones  &  Spencer's  New  York  Superior 
Court  Reports. 

J.  &  S.  Jam.    Judah  &  Swan's  Jamaica  Reports. 

J.  &  W.  Jacob  and  Walker's  Reports,  English 
Chancery. 

Jac.  Jacobus ; — Jacob's  English  Chancery  Re- 
ports ; — Jacob's  Law  Dictionary  ;— King  James  ;  thus 
1  Jac.  I.  signifies  the  first  year  of  the  reign  of  King 
James  I. 

Jac.  Diet,  or  Jac.  L.  D.     Jacob's  Law  Dictionary. 

Jac.  Fish.  Dig.     Jacob's  Fisher's  Digest. 

Jac.  Int.  Jacob's  Introduction  to  the  Common, 
Civil  and  Canon  Law. 

Jac.  L.  G.    Jacob's  Law  Grammar. 

Jac.  Lex  Mer.  Jacob's  Lex  Mercatoria,  or  the  Mer- 
chant's Companion. 

Jac.  Sea  Law.    Jacobsen's  Law  of  the  Sea. 

Jac.  &  W.  or  Jac.  &  Walk.  Jacob  &  Walker's  Eng- 
lish Chancery  Reports. 

Jack.     Jackson's  Reports,  Georgia. 

Jack.  Tex.  App.  Jackson's  Texas  Court  of  Appeals 
Reports. 

Jack.  &  G.  Landl.  &  Ten.  Jackson  &  Gross,  Trea- 
tise on  the  Law  of  Landlord  and  Tenant  in  Penn- 
sylvania. 

Jackson.  Jackson's  Reports,  vols.  43-66  Georgia  ;— 
Jackson's  Reports,  vols.  1-29  Texas  Court  of  Ap- 
peals. 

Jackson  &  Lumpkin  (Ga.).  Jackson  &  Lumpkin's 
Georgia  Reports. 

Jacob.     Jacob's  Law  Dictionary. 

James.     James's  Reports,  Nova  Scotia. 

James.  Const.  Con.  Jameson  on  Constitutional 
Conventions. 

James  (N.  Sc).    James's  Reports,  Nova  Scotia. 

James  Op.  James's  Opinions,  Charges,  etc.,  Lon- 
don, 1820. 

James  Sel.  Cas.  or  James  Sel.  Cases.  James's  Select 
Cases,  Nova  Scotia. 

James.  &  Mont.  Jameson  and  Montagu's  English 
Bankruptcy  Reports  (in  2  Glyn  and  Jameson). 

Jan.  Angl.     Jani  Anglorum. 

Jar.  Ch.  Pr.     Jarman's  Chancery  Practice. 

Jar.  Cr.  Tr.    Jardine's  Criminal  Trials. 

Jar.  Pow.  Dev.  Powell  on  Devises,  with  Notes  by 
Jarman. 

Jar.  Prec.    Bythewood  and  Jarman's  Precedents. 

Jar.  Wills.     Jarman   on   Wills. 

Jard.  Tr.     Jardine's  Criminal  Trials. 

J  arm.  Ch.  Pr.    Jarman's  Chancery  Practice. 

Jarm.  Pow.  Dev.  Powell  on  Devises,  with  Notes 
by  Jarman. 

Jarm.  Wills.     Jarman  on  Wills. 

Jarm.  &  By.  Conv.  Jarman  and  Bythewood's  Con- 
veyancing. 

Jctus.    Jurisconsultus. 

Jebb  or  Jebb  C.  C.  or  Jebb  Cr.  Cas.  or  Jebb  Ir.  Cr. 
Cas.    Jebb's  Irish  Crown  Cases. 

Jebb  Cr.  &  Pr.  Cas.  Jebb's  Irish  Crown  and  Pre- 
sentment Cases. 

Jebb  &  B.  Jebb  and  Bourke's  Reports,  Irish 
Queen's   Bench. 

Jebb  &  S.  or  Jebb  &  Sym.  Jebb  and  Symes's  Re- 
ports, Irish  Queen's  Bench. 

Jeff.     Jefferson's  Reports,  Virginia. 

Jeff.  Man.  Jefferson's  Manual  of  Parliamentary 
Law. 

J enk.  or  J enk.  Cent.  Jenkins's  Eight  Centuries  of 
Reports,   English   Exchequer. 

Jenks.     Jenks's   Reports,  vol.   58  New  Hampshire. 

Jenn.    Jennison's  Reports,  vols.  14-18  Michigan. 

Jer.  Eq.  Jur.  or  Jeremy,  Eq.  Jur.  Jeremy's  Equity 
Jurisdiction. 

Jo.  T.     Sir  T.  Jones's  Reports. 

Jo.  Juris.     Journal  of  Jurisprudence. 

Jo.  &  La  T.  Jones  and  La  Touche's  Reports,  Irish 
Chancery. 

John.  Johnson's  New  York  Reports ; — Johnson's 
Reports  of  Chase's  Decisions; — Johnson's  Maryland 
Chancery  Decisions ;— Johnson's  English  Vice-Chan- 
cellors' Reports. 

John.  &  H.  Johnson  and  Hemming's  Reports,  Eng- 
lish Chancery. 


Johns.  Johnson's  Reports,  New  York  Supreme 
Court ; — Johnson's  Reports  of  Chase's  Decisions  ;— 
Johnson's  Maryland  Chancery  Decisions  ; — Johnson's 
English  Vice-Chancellors'   Reports. 

Johns.  Bills.    Johnson  on  Bills  of  Exchange,  etc. 

Johns.  Cas.  Johnson's  Cases,  New  York  Supreme 
Court, 

Johns.  Ch.  Johnson's  New  York  Chancery  Re- 
ports ;— Johnson's  English  Vice-Chancellors'  Re- 
ports ; — Johnson's  Maryland  Chancery  Decisions  ;— 
Johnston's  Reports,  New  Zealand. 

Johns.  Ch.  Cas.  Johnson's  Chancery  Reports,  New 
York. 

Johns.  Ct.  Err.  Johnson's  Reports,  New  York 
Court  of   Errors. 

Johns.  Dec.  Johnson's  Maryland  Chancery  Deci- 
sions. 

Johns.  Eccl.  Law.    Johnson's  Ecclesiastical  Law. 

Johns.  Eng.  Ch.  Johnson's  English  Chancery  Re- 
ports. 

Johns.  H.  B.  V.  Johnson's  English  Chancery  Re- 
ports. 

Johns.  (Md.).    Johnson's  Maryland  Reports. 

Johns.  (New  Zealand).  Johnson's  New  Zealand 
Reports. 

Johns.  Pat.  Man.     Johnson's  Patent  Manual. 

Johns.  Rep.  Johnson's  Reports,  New  York  Su- 
preme   Court. 

Johns.  Tr.     Johnson's  Impeachment  Trial. 

Johns.  U.  S.  Johnson's  Reports  of  Chase's  United 
States   Circuit  Court   Decisions. 

Johns.  V.  C.  or  Johns.  V.  Ch.  Cas.  Johnson's  Cases 
in  Vice-Chancellor  Wood's  Court. 

Johns.  &  H.  or  Johns.  &  Hem.  Johnson  &  Hem- 
ming's English   Chancery   Reports. 

Johnson.  Johnson's  Reports,  New  York ;— John- 
son's English  Vice-Chancellors'  Reports; — Johnson's 
Maryland    Chancery    Decisions. 

Johnst.  Inst.  Johnston's  Institutes  of  the  Law  of 
Spain. 

Johnst.  N.  Z.     Johnston's  Reports,  New  Zealand. 

Jon.  Thos.  Jones's  Reports,  English  King's  Bench 
and  Common  Pleas  ; — Wm.  Jones's  Reports,  English 
King's  Bench  and  Common  Pleas. 

Jon.  (Ala.).     Jones's  Reports,  Alabama,  62. 

Jon.  Bailm.     Jones's   Law   of   Bailments. 

Jon.  B.  &  W.  Jones,  Barclay,  and  Whittelsey's 
Reports,  Missouri,  vol.  31. 

Jon.  Corp.  Sec.    Jones  on  Corporate  Securities. 

Jon.  Eq.     Jones's  Equity  Reports,  North   Carolina. 

Jon.  Exch.     Jones's   Irish   Exchequer   Reports. 

Jon.  Inst.     Jones's  Institutes  of  Hindoo  Law. 

Jon.  Intr.     Jones's   Introduction   to   Legal   Science. 

Jon.  Ir.  Exch.    Jones's  Reports,  Irish  Exchequer. 

Jon.  L.  0.  T.     Jones  on  Land  Office  Titles. 

Jon.  (Mo.).     Jones's  Reports,  Missouri. 

Jon.  (N.  C.).  Jones's  Law  Reports,  North  Caro- 
lina. 

Jon.  (N.  C.)  Eq.  Jones's  Equity  Reports,  North 
Carolina. 

Jon.  Mort.    Jones  on  Mortgages. 

Jon.  (Pa.).    Jones's  Reports,  Pennsylvania. 

Jon.  Railw.  Sec.    Jones  on  Railway  Securities. 

Jon.  Salv.     Jones  on  Salvage. 

Jon.  T.  Thos.  Jones's  Reports,  English  King's 
Bench  and  Common  Pleas.  Sometimes  cited  as  2 
Jones. 

Jon.  (U.  C).    Jones's  Reports,  Upper  Canada. 

Jon.  W.  Wm.  Jones's  Reports,'  English  King's 
Bench  and  Common  Pleas.  Sometimes  cited  as  1 
Jones. 

Jon.  &  C.  or  Jon.  &  Car.  Jones  and  Cary's  Reports, 
Irish  Exchequer. 

Jon.  &  L.  or  Jon.  &  La  T.  Jones  and  La  Touche's 
Reports,  Irish  Chancery. 

Jon.  dc  S.  Jones  and  Spencer's  Reports,  New  York 
City  Superior  Court,  vols.  33-46. 

Jones.  Jones's  Reports,  vols.  43-48,  52-57,  61,  62  Ala- 
bama ; — Jones's  Reports,  vols.  11,  12  Pennsylvania  ; — 
Jones's  Reports,  vols.  22-31  Missouri ; — Jones's  Law 
or  Equity  Reports,  North  Carolina ; — Jones's  Irish 
Exchequer  Reports ; — Jones's  Upper  Canada  Com- 
mon Pleas  Reports  ; — Jones  &  Spencer's  New  York 
Superior  Court  Reports ;— Sir  Thomas  Jones's  Eng 


ABBREVIATION 


51 


ABBREVIATION 


llsh    King's    Bench    Reports;— Sir    William    Jones's 
English   King's   Bench    Reports  ;— See   Jon. 

Jones,  JJailm.     Jones's  Law  of  Bailments. 

Jones,  Barclay  dc  Whittelsey  or  Jones,  B.  &  W. 
(Mo. J.  Jones,  Barclay  and  Whittelsey's  Reports, 
Missouri   Supremo   Court   (31  Missouri). 

Jones,  Chat.  Mortg.     Jones  on  Chattel  Mortgages. 

Jones  Eq.    Jones's  North  Carolina  Equity   Reports. 

Jones,  French  Bar.  Jones's  History  of  the  French 
Bar. 

Jones  It.     Jones's  Irish  Exchequer  Reports. 

Jones  Law  or  Jones  N.  C.  Jones's  North  Carolina 
La"w  Reports. 

Jones  (Fa.).  Jones's  Reports,  vols.  11,  12  Pennsyl- 
vania. 

Jones  T.  Sir  Thomas  Jones's  English  King's 
Bench   Reports. 

Jones  U.  C.     Jones's  Reports,  Upper  Canada. 

Jones  W.  Sir  William  Jones's  English  King's 
Bench  Reports. 

Jones  dc  C.  Jones  &  Cary's  Irish  Exchequer  Re- 
ports. 

Jones  dc  La  T.  Jones  &  La  Touche's  Irish  Chan- 
cery  Reports. 

Jones  t£  McM.  (Pa.).  Jones  &  McMurtrie's  Penn- 
sylvania Supreme  Court  Reports. 

Jones  &  Spen.  Jones  &  Spencer's  New  York  Su- 
perior Court  Reports. 

Jord.  P.  J.    Jordan's  Parliamentary  Journal. 

Josephs.    Josephs's  Reports,  vol.  21  Nevada. 

Jour.  Jut.  (Sc.).  Journal  of  Jurisprudence  and 
Scottish  Law  Magazine,  Edinburgh. 

Jour.  Jur.  Journal  of  Jurisprudence  (Hall's), 
Philadelphia. 

Jour.  Law.    Journal  of  Law,  Philadelphia. 

Jour.  Trib.  Com.  Journal  des  Tribunaux  de  Com- 
merce, Paris. 

Joy  Chal.     Joy  on  Challenge  to  Jurors. 

Joy  Ev.  Ace.     Joy  on  the  Evidence  of  Accomplices. 

Jud.  Judgments.  Judicial.  Judicature; — Book  of 
Judgments,    English   Courts. 

Jud.  Chr.     Judicial   Chronicle. 

Jud.  Com.  of  P.  C.  Judicial  Committee  of  the 
Privy   Council. 

Jud.  Repos.     Judicial   Repository,    New  York. 

Jud.  dc  8w.  (Jamaica).  Judah  and  Swan's  Reports, 
Jamaica. 

Judd.     Judd's  Reports,  vol.  4  Hawaii. 

Jur.  The  Jurist  Reports  in  all  the  Courts,  Lon- 
don. 

Jur.  Eccl.     Jura  Ecclesiastlca. 

Jur.  Mar.    Molloy's  De  Jure  Maritimo. 

Jur.  N.  S.  The  Jurist,  New  Series,  Reports  in  all 
the  Courts,   London. 

Jur.  (N.  S.)  Ex.      Jurist    (New    Series)    Exchequer. 

Jur.  N.  Y.  The  Jurist  or  Law  and  Equity  Report- 
er,  New  York. 

Jur.  Ros.     Roscoe's  Jurist,  London. 

Jur.  Sc.  Scottish  Jurist,  Court  of  Session,  Scot- 
land. 

Jur.  Soc.  P.     Juridical  Society  Papers,  London. 

Jur.  St.    Juridical  Styles,  Scotland. 

Jur.  Wash.  D.  C.     The    Jurist,    Washington,    D.    C. 

Jurisp.    The  Jurisprudent,   Boston. 

Jus  Nav.  Rhod.    Jus   Navale    Rhodiorum. 

Just.  Dig.  Digest  of  Justinian,  50  books.  Never 
translated  into  English. 

Just.  Jnst.  Justinian's  Institutes.  See  note  follow- 
ing "Inst.  1,  2,  31." 

Just.  Itin.     Justice  Itinerant  or  of  Assize. 

Just.  P.    The  Justice  of  the  Peace,  London. 

Jitst.  S.  L.     Justice's   Sea   Law. 

Just.  T.     Justice  of  Trailbaston.  ■ 

Juta.     Juta's  Cape  of  Good  Hope  Reports. 

K.  Keyes's  New  York  Court  of  Appeals  Reports; 
— Kenyon's  English  King's  Bench  Reports;— Kansas 
(see  Kan.). 

A'.  B.  or  [1901]  K.  B.  Law  Reports,  King's  Bench 
Division,  from  1901  onward. 

K.B.(V.C).  King's  Bench  Reports,  Upper  Can- 
ada. 

K.  C.    King's   Council. 

K.C.R.    Reports    tempore    King,    English     Chan- 
»ery. 
K.  £  B.  Dig.    Kerford's  and  Box's  Victorian  Digest. 


K.  £  F.  N.  S.  W.      Knox  &  Fitzhardinge's  New  South 
Wales  Reports. 

K.  dc  G.  R.  C.    Keane   &   Grant's    English  ra- 

tion Appeal  Cases. 

K.dcJ.     Kay    &    Johnson's    English    V) 
ports. 

K.  &  O.    Knapp  and  Ombler's  Election  Cases,  Eng- 

Kam.    or    Kam.    Dec.    Karnes's    Decisions,    Scotch 
Court  of  Session. 

Kam.  Eluc.    Karnes's    Elucidations   of  the    Law  of 
Scotland. 

Kam.  Eq.    Karnes's    Principles   of   Equity. 

Kam.  Ess.    Karnes's    Essays. 

Kam.  Uist.  L.l'r.  or  Kam.  L.T.    Karnes's     Histori- 
cal   Law   Tracts. 

Kam.  Rem.  Dec.    Karnes's    Remarkable    Decisions, 
Scotch  Court  of  Session. 

Kam.  Set.  Dec.    Karnes's    Select    Decisions,    Scotch 
Court  of  Session. 

Kam.  Tr.     Karnes's  Historical   Law  Tracts. 

Karnes,  Eq.    Karnes's    Principles   of   Equity. 

Kan.  (or  Kans.) .    Kansas; — Kansas    Reports. 

Kan.  C.  L.  Rep.    Kansas   City   Law   Reporter. 

Kan.  L.  J.    Kansas   Law   Journal. 

Kan.  Univ.  Lawy.       Kansas      University      Lawyer, 
Lawrence. 

Kans.  App.    Kansas   Appeals    Reports. 

Kay.    Kay's   English    Vice-Chancellors'   Reports. 

Kay  Sh.    Kay  on   Shipping. 

Kay  &  J.  or  Kay  <£  Johns.    Kay   and   Johnson's    Re- 
ports,   English   Chancery. 

Ke.    Keen's   English    Rolls    Court   Reports. 

Keane  dc  G.  R.  C.  or  Keane  dc  Gr.    Keane  and  Grant's 
English  Registration  Appeal  Cases. 

Keat.  Fam.  Sett.    Keating  on   Family    Settlements. 

Keb.  or  Keble.    Keble's     Reports,     English     King's 
Bench. 

Keb.  J.    Keble's  Justice  of  the  Peace. 

Keb.  Stat.    Keble's   Statutes   of    England. 

Keen.    Keen's   Reports,   English  Rolls   Court. 

Keen.    Cas.    Qua.    Cont.   or    Keener,    Quasi    Contr. 
Keener's   Cases  on   Quasi    Contracts. 

Keil.  or  Keilw.    Keilway's  Reports,  English  King's 
Bench. 

Kel.  1.    Sir   John    Kelyng's   English   Crown   Cases. 

Kel.  2.    William   Kelynge's  English   Chancery  Re- 
ports. 

Kel.  Ga.    Kelly's   Reports,    Georgia    Reports,    vols. 
1-3. 

Kel.  J.  or  1  Kel.    Sir  John  Kelyng's  Reports,  Eng- 
lish Crown  Cases. 

Kel.  W.  or  S  Kel.    W.    Kelynge's    Reports,    English 
Chancery  and    King's    Bench. 

Kel.  dc  C.    Kelly   and   Cobb's   Reports,   Georgia. 

Kelh.  Norm.  L.  D.  op  Kelhatn.      Kelham's     Norman 
French  Law  Dictionary. 

Kellen.    Kellen's   Reports,   vols.   146-135   Massachu- 
setts. 

Kelly.    Kelly's  Reports,  vols.  1-3  Georgia. 

Kelly  dc  C.  or  Kelly  d  Cobb.    Kelly     &     Cobb's     Re- 
ports, vols.  4,  5  Georgia. 

Kclyng,J.    Kelyng's    English    Crown    Cases. 

Kelynge,  W.    Kelynge's     English     Chancery     Re- 
ports. 

Kemble,  Sax.    Kemble,  The  Saxons  in  England. 

Ken.    Kentucky  (see  Ky.)  ; — Kenyon  English  King's 
Bench   Reports. 

Ken.  Dec.    Kentucky  Decisions,  by  Sneed. 

Ken.  L.  Rep.    Kentucky    Law   Reporter. 

Kenan.    Kenan's  Reports,  vols.   76-91   North   Caro- 
lina. 

Kcnn.  Gloss.    Kennett's   Glossary. 

Kenn.  Imp.    Kennett   on   Impropriations. 

Kcnn.  Par.  Antiq.    Kennett,    Parochial   Antiquities. 

Kennett.    Kennett's  Glossary  ;— Kennett  upon   Im- 
propriations. 

Kennett,  Gloss.    Kennett's    Glossary- 
Kent  or  Kent  Com.  or  Kent  Comm.    Kent's  Commen- 
taries on  American  Law. 

Kcny.    Kenyon's   Noti        English   King's   Bench. 

Kcny.  C.  H.  (or  S  Kcny.).    Chancery      Reports      at 
the   end   of   2    Kenyon. 

Kern.     Kern's     Reports,     vols.     100-116     Indiana;- 
Kernan's    Reports,    vols.    11-14   New    York    Court    of 
Appeals. 


ABBREVIATION 


52 


ABBREVIATION 


Kerr.    Kerr's    Reports,    Indiana ;  —  Kerr's    New 
Brunswick   Reports  ;— Kerr's   Reports;— J.  M.   Kerr's 
Reports,  vols.  27-29  New  York  Civil  Procedure. 
Kerr  Act.    Kerr  on  Actions  at  Law. 
Kerr  Anc.  L.    Kerr   on  Ancient   Lights. 
Kerr  Disc.    Kerr  on  Discovery. 
Kerr  Extra.    Kerr   on    Inter-State   Extradition. 
Kerr  Fr.    Kerr    on   Fraud    and    Mistake. 
KerrJnj.    Kerr  on   Injunction. 
Kerr  (N.  B.J.    Kerr's     Reports,     New    Brunswick. 
Kerr  Rec.    Kerr  on   Receivers. 
Kerse.    Kerse's      Manuscript     Decisions,      Scotch 
Court  of  Session. 

Key.  or  Kcyes.    Keyes's  Reports,  New  York  Ct.  of 
Appeals.     Sometimes  cited  as  vols.  40-43  N.  Y. 

Keyes  F.  I.  C.    Keyes  on  Future  Interest  in  Chat- 
tels. 
Keyes  F.  I.  L.    Keyes  on  Future  Interest  In  Lands. 
Keyes  Rem.    Keyes  on  Remainders. 
Keyl.    Keilwey's    (or    Keylway's)    English   King's 
Bench  Reports. 

Kilk.    Kilkerran's   Reports,  Scotch   Court  of    Ses- 
sion. 

King.    King's    Reports,    vols.   5,   6   Louisiana   An- 
nual. 

King  Cas.  temp.    Select  Cases  tempore  King,  Eng- 
lish   Chancery. 
King's  Conf.  Ca.    King's  Conflicting   Cases. 
Kir.  (Kirb.or  Kiroy).    Kirby's      Connecticut     Re- 
ports. 

Kirt.  Sur.  Pr.    Kirtland  on  Practice  in  Surrogates' 
Courts. 

Hitch,   or   Kitch.    Courts   or   Kitchin.    Kitchin   on 
Jurisdictions  of  Courts-Leet,  Courts-Baron,   etc. 

Kn.  or  Kn.  A.  C.  or  Knapp  or  Knapp  A.  C.      Knapp's 

Appeal  Cases  (English  Privy  Council). 

Kn.  N.  S.  W.    Knox,    New     South    Wales    Reports. 

Kn.  &  M.  or  Kn.  &  Moo.  or  Knapp  &  M.     Knapp    and 

Moore's    Reports,    vol.    3    Knapp's    English    Privy 

Council. 

Kn.  <£•  O.  or  Knapp  &  Omb.      Knapp     and    Ombler's 
Election  Cases. 
Knapp-    Knapp's  Privy  Council  Reports,  England. 
Knowles.    Knowles's  Reports,  vol.  3  Rhode  Island. 
Knox.    Knox,  New  South  Wales  Reports. 
Knox  &  Fitz.    Knox    &    Fitzhardinge,    New    South 
Wales. 
Kolze.    Transvaal  Reports  by  Kolze. 
Kreider.    Kreider's  Reports,  vols.  1-23  Washington. 
Kress.    Kress's     Reports,    vols.     166-194     Pennsyl- 
vania;— Kress's    Pennsylvania    Superior   Court. 

Kulp.    Kulp's    Luzerne    Legal     Register    Reports, 
Pennsylvania. 
Ky.    Kentucky;— Kentucky    Reports. 
Ky.  Dec.    Kentucky    Decisions,    Sneed's    Reports. 
Ky.  L.  R.  or  Ky.  L.  Rep.    Kentucky    Law    Reporter. 
Kyd  Aw.    Kyd  on  the  Law  of  Awards. 
Kyd  Bills.    Kyd  on  Bills  of  Exchange. 
Kyd  Corp.    Kyd   on   Corporations. 
L.     Lansing's  Supreme  Court  Reports,  New  York; 
—Law.     Loi.     Liber. 
L.  A.     Lawyers'   Reports   Annotated. 
L.  Alam.     Law   of  the  Alamanni. 
L.  Baiwar.  or  L.  Boior.     Law   of  the-  Bavarians. 
L.  C.     Lord  Chancellor  ; — Lower  Canada  ; — Leading 
Cases. 
L.  C.  B.     Lord  Chief  Baron. 
L.  C.  C.  C.      Lower    Canada   Civil    Code. 
L.  C.C.  P.     Lower  Canada  Civil  Procedure. 
L.  C.  D.     Lower  Court  Decisions,  Ohio. 
L.  C.  Eq.     White    and   Tudor's    Leading    Cases    in 
Equity. 
L.  C.  G.     Lower   Courts  Gazette,  Toronto. 
L.  C.  J.    Lord  Chief  Justice. 

L.  C.  J.  or  L.  C.  Jur.     Lower   Canada   Jurist,   Mon- 
treal. 
L.  C.  L.  J.    Lower  Canada  Law  Journal,  Montreal. 
L.  C.  R.     Lower   Canada   Reports. 
L.  D.  or  L.  Dec.      Land     Office     Decisions,     United 
States. 
L.  Ed.     Lawyers'  Edition   Supreme  Court  Reports. 
L.  F.     Leges  Forestarum. 
L.  Fr.     Law  French. 
L.  H.  C.     Lord  High  Chancellor. 
L.  I.     Legal  Intelligencer,  Philadelphia. 


L.  I.  L.     Lincoln's   Inn    Library. 
L.  J.      House    of    Lords    Journal ; — Lord    Justices 
Court ;— The  Law  Journal,    London. 

L.  J.  or  L.  J.  O.  8.  Law  Journal  Reports,  In  all  the 
Courts. 

L.  J.  Adm.  Law  Journal  Reports,  New  Series, 
English  Admiralty. 

L.  J.  App.  Law  Journal  Reports,  New  Series, 
English  Appeals. 

L.  J.  Bank,  or  L.  J.  Bankr.  or  L.  J.  Bk.  Law 
Journal  Reports,  New  Series,  English  Bankruptcy 
(1831  onward). 

L.  J.  C.  or  L.  J.  C.  P.  Law  Journal  Reports,  New 
Series,  English  Common  Pleas. 

L.  J.  C.  C.  R.  Law  Journal,  New  Series,  Crown 
Cases   Reserved. 

L.  J.  Ch.  Law  Journal,  New  Series,  English 
Chancery  Division   (1831  on). 

L.J.Ch.(O.S.).  Law  Journal,  Old  Series,  1822,- 
1831. 

L.J.Chan.  Law  Journal  Reports,  New  Series, 
English  Chancery  Division   (1831  on). 

L.  J.  C.  P.  or  L.  J.  C.  P.  D.  Law  Journal,  New  Se- 
ries, Common  Pleas  Decisions. 

L.  J.  D.  &  M.  Law  Journal,  New  Series,  Divorce 
and   Matrimonial. 

L.  J.  Ecc.  Law  Journal  Reports,  New  Series,  Ec- 
clesiastical (1831  on). 

L.  J.  Ex.  or  L.  J.  Exch.  Law  Journal,  New  Series, 
Exchequer  Division  (1S31  on). 

L.  J.  H.  L.      Law    Journal    Reports,    New    Series, 
English  House  of  Lords. 
L.  J.  K.  B.     Law    Journal,   King's   Bench. 
L.  J.  L.  C.     Law  Journal,  Lower  Canada. 
L.  J.  L.  T.     Law  Journal,    Law   Tracts. 
L.  J.  M.  C.    Law  Journal,  New  Series,  Divorce  and 
Matrimonial ;— Law  Journal,  Magistrates'  Cases. 

L.  J.  M.  P.  A.  Law  Journal,  Matrimonial,  Probate 
and  Admiralty. 

L.  J.  (M.  &  W.).  Morgan  and  William's  Law 
Journal,  London. 

L.  J.  N.  S.  The  Law  Journal,  New  Series,  London 
(1831  onwards). 

L.  J.  N.  C.  or  L.  J.  Notes  Cases.  Law  Journal, 
Notes  of   Cases. 

L.  J.  O.  S.  The  Law  Journal,  Old  Series,  London 
(1822-1831). 

L.  J.  P.  or  L.  J.  P.  C.  Law  Journal,  New  Series, 
Privy  Council ;— Law  Journal,  Probate,  Divorce  and 
Admiralty. 

L.  J.  P.  D.  &  A.  Law  Journal  Reports,  New  Series, 
English  Probate,  Divorce,  and  Admiralty. 

L.  Jl  P.  &  M.  or  L.  J.  Prob.  or  L.  J.  Prob.  &  Mat. 
Law  Journal,  New  Series,  Probate  and  Matrimonial 
(1831  onward). 

L.  J.  Q.  B.      Law    Journal    Reports,    New    Series, 
English    Queen's  Bench    (1831  on). 
L.  J.  Rep.     Law  Journal   Reports. 
L.  J.  Rep.  N.  S.    Law  Journal  Reports,  New  Series 
(1S31  onward). 
L.J.(Sm.).     Smith's  Law  Journal,  London. 
L.  J.  V.  C.     Law   Journal,    Upper  Canada. 
LL.     Laws. 

L.  L.     Law    Latin.      Local    Law ;— Law    Library, 
Philadelphia  (reprint  of  English  treatises). 
L.  L.  N.  S.     Law  Library,  New  Series. 
L.  Lat.    Law  Latin. 

L.  M.  &  P.     Lowndes,    Maxwell,   and  Pollock's   Re- 
ports, English  Bail   Court. 
L.  Mag.     Law  Magazine,  London. 
L.  Mag.  &  L.  R.  or  L.  Mag.  &  R.     Law  Magazine  and 
Law  Review,  London. 
L.  N.     Liber  Niger,  or  the  Black  Book. 
L.  O.      Legal    Observer,    London. 
L.  P.  B.    Lawrence's  Paper  Book.     See  A.  P.  B. 
L.  P.  C.     Lord  of  the  Privy  Council. 
L.  P.  R.     Lilly's  Practical   Register. 
L.  R.       Law    Reports     (English)  ;— Law    Reporter 
(Law   Times   Reports,    New    Series)    Law    Review  ;— 
(Irish)     Law    Recorder,    Reports    in    all    the    Irish 
Courts  ;— Louisiana   Reports. 
L.  R.  A.    Lawyers'    Reports  Annotated. 
L.  R.  A.  &  E.      English     Law    Reports,    Admiralty 
and   Ecclesiastical   (1866-1875). 


ABBREVIATION 


53 


ABBREVIATION 


L.  R.  App.  or  L.  R.  App.  Cas.  English  Law  Reports, 
Appeal  Cases,  House  of  Lords. 

L.  R.  Uurm.     Law  Reports,  British  Burmah. 

L.  R.  C.  C.  or  L.  R.  C.  C.  R.  English  Law  Reports, 
Crown  Cases  Reserved  (1866-1875). 

C.  P.     English   Law    Reports,   Common   Pleas 
(1866-1875). 

L.B.O.P.D.  Law  Reports,  Common  Pleas  Divi- 
sion,  English   Supreme  Court  of  Judicature. 

L.  R.  Ch.  English  Law  Reports,  Chancery  Appeal 
Cases    (1866-1875). 

L.  R.  Ch.  D.  or  L.  R.  Ch.  Div.  Law  Reports,  Chan- 
cery Division,  English  Supreme  Court  of  Judicature. 

L.  R.  E.  <C-  I.  App.  or  L.  R.  E.  d  Ir.  App.  English 
Reports,    English  and  Irish  Appeals. 

L.  R.  Eq.  English  Law  Reports,  Equity  (1866- 
1875). 

L.  R.  Ex.  or  L.  R.  Exch.  English  Law  Reports,  Ex- 
chequer   (1866-18 

L.  R.  Ex.  D.  or  L.  R.  Ex.  Div.  Law  Reports,  Ex- 
chequer Division,  English  Supreme  Court  of  Judica- 
ture. 

L.  R.  H.  L.  Law  Reports,  English  and  Irish  Ap- 
peal  Cases,  House  of  Lords. 

L.  R.  H.  L.  Sc.  English  Law  Reports,  House  of 
Lords,   Scotch  and   Divorce  Appeal  Cases   (1866-1875). 

L.  R.  Ind.  App.  English  Law  Reports,  Indian  Ap- 
peals. 

L.  R.  Ir.     Law  Reports,  Ireland   (1879-1893). 

L.  R.  Misc.  D.  Law  Reports,  Miscellaneous  Divi- 
sion. 

L.  R.  N.  S.     Irish  Law  Recorder,  New  Series. 

L.  R.  N.  S.  W.     Law  Reports,  New  South  Wales. 

L.  R.  P.  C.  English  Law  Reports,  Privy  Council, 
Appeal  Cases   (1866-1875). 

L.  R.  Q.  B.  Law  Reports,  Queen's  Bench  (1866- 
1875). 

L.  R.  Q.  B.  Div.  Law  Reports,  Queen's  Bench  Divi- 
sion. 

L.  R.  P.  Div.  or  L.  R.  P.  d  D.  Law  Reports,  Pro- 
bate, Divorce,  and  Admiralty  Division,  English  Su- 
preme   Court. 

L.  R.  P.  &  M.  Law  Reports,  Probate  and  Matri- 
monial   (1866-1875). 

L.  R.  S.  A.     Law  Reports,   South  Australia. 

L.  R.  Sc.  Div.  App.  Cas.  or  L.  R.  Sc.  d  D.  Eng- 
lish Law  Reports,  Scotch  and  Divorce  Cases,  before 
the  House  of   Lords. 

L.  R.  Sess.  Cas.  English  Law  Reports,  Session 
Cases. 

L.  R.  Stat.     English  Law   Reports,  Statutes. 

L.  Rep.  (Mont.).     Law  Reporter  (Montreal). 

L.  Repos.     Law  Repository. 

L.  Rev.  &  Quart.  J.  Law  Review  and  Quarterly 
Journal. 

L.  liipar.     Law  of  the  Riparians. 

L.  S.     Locus  sigilli,  place  of  the  seal. 

L.  Salic.     Salic   Law. 

L.  Stu.  Mag.  N.  S.  Law  Student's  Magazine,  New 
Series. 

L.  T.  The  Law  Times,  Scranton,  Pa.  ;— The  Law 
Times,   London. 

L.  T.  B.  American  Law  Times  Bankruptcy  Re- 
ports. 

L.  T.  J.     Law  Times  Journal. 

L.  T.  N.  S.  or  L.  T.  R.  N.  S.  or  L.  T.  Rep.  N.  S. 
Law  Times  (New  Series)  Reports,  London  ;— Amer- 
ican  Law  Times   Reports. 

L.  T.  0.  S.      Law   Times,   Old   Series. 

L.  T.  R.    Law  Times  Reports,  in  all  the  Courts. 

L.  V.  Rep.     Lehigh  Valley  Reporter,  Pennsylvania. 

L.  d  B.  Bull.     Law  and  Bank  Bulletin. 

L.  d  B.  his.  Dig.  Littleton  and  Blatchley's  Insur- 
ance Digest. 

L.  <£•  C.  or  L.  d  C.  C.  C.  Leigh  &  Cave's  English 
Crown  Cases,   Reserved. 

L.  &  E.  English  Law  and  Equity  Reports,  Boston 
Edition. 

L.  d  E.  Rep.  Law  and  Equitv  Reporter,  New 
York. 

L.  d  O.  t.  Plunk.  Lloyd  and  Goold's  Cases  tempore 
Plunkett,   Irish  Chancery. 

L.  d  O.  t.  Sug.  Lloyd  and  Goold  temp.  Sugden, 
Irish   Chancery. 


L.  d  M.  Lowndes  &  Maxwell's  English  Practice 
Cases,  Bail  Court. 

L.  d  T.  Longfleld  and  Townsend's  Reports,  Irish 
Exchequer. 

L.  d  W.  or  L.  d  Wclsb.  Lloyd  and  Welsby's  Mer- 
cantile Cases,  English  Co 

La.     Lane's  Reports,   English  Excheq' 
ana  ;— Louisiana    Reports  ;— Lane's   English   L 
uer   Reports. 

La.  An.      Louisiana  Annual  Reports  ;— Lawyr  : 
ports,    Annotated. 

La.  Ann.     Louisiana  Annual  Reports. 

La  Laure  des  Ser.  Tralte  des  Servitudes  replies, 
par  M.   La   Laure. 

La.  L.  J.  or  La.  L.  J.  (Schm.).  Louisiana  Law 
Journal   (Schmidt's),  New  Orleans. 

La.  T.  R.  Martin's  Louisiana  Term  Reports,  vols. 
2-12. 

La  The~m.  L.  C.  La  Th6mis  (Periodical)  Lower 
Canada. 

Lab.  Labatt's  Reports,  U.  S.  District  Ct,  Califor- 
nia. 

Lac.  Dig.  Ry.  Dec.  or  Lacey  Dig.  Lacey's  Digest  of 
Railway   Decisions. 

Lack.  Leg.  R.  Lackawanna  Legal  Record,  Scran- 
ton, Pa. 

Ladd.     Ladd's  Reports,  vols.  59-64  New  Hampshire. 

Lai.  R.  P.     Lalor  on   Real  Property. 

Lalor.  Lalor's  Supplement  to  Hill  and  Denlo's 
Reports,  New  York. 

Lalor,  Pol.  Econ.  Lalor,  Cyclopaedia  of  Political 
Science,  Political   Economy,   etc. 

Lamar.     Lamar's  Reports,  vols.  25-42  Florida. 

Lamb.     Lamb's  Reports,   Wisconsin. 

Lamb.  Arch,  or  Lamb.  Archai.  Lambard's  Archai- 
onomia. 

Lamb.  Const.    Lambard,  Duties  of  Constables,  eta 

Lamb.  Eir.  or  Lamb.  Eiren.    Lambard's  Eirenarcha. 

Lane.  B.    The    Lancaster    Bar,    Pennsylvania- 
Lane.  L.  Rev.    Lancaster  Law  Review. 

Land  Com.  Rep.  Land  Commissioners  Reports, 
Ireland. 

Land.  Est.  C.    Landed   Estates   Court. 

Lane.    Lane's  Reports,  English  Exchequer. 

Lang.  Eq.  PI.  Langdell's  Summary  of  Equity 
Pleading. 

Lang.  Lead.  Cas.  Langdell's  Leading  Cases  on 
Contracts. 

Lang.  L.  C.  Sales.  Langdell's  Leading  Cases  on 
Sales. 

Langd.  Cont.  Langdell's  Leading  Cases  on  Con- 
tracts ;— Langdell's  Summary  of  the  Law  of  Con- 
tracts. 

Lans.  Lansing's  Reports,  New  York  Supreme 
Court  Reports,  vols.  1-7. 

Lans.  Ch.  or  Lans.  Sel.  Cas.  Lansing's  Select 
Chancery  Cases,  New  York. 

Laper.  Dec.  Laperrlere's  Speaker's  Decisions, 
Canada. 

Las  Partidas.    Las   Sicte   Partidas. 

Lat.  or  Latch.  Latch's  Reports,  English  King's 
Bench. 

Lath.  Lathrop's  Reports,  vols.  115-145  Massachu- 
setts. 

Lauder.  (Lauder  of)  Fountalnhall's  Scotch  Ses- 
sion Cases. 

Law.  H.  C.  Ca.  Lauren's  High  Court  Cases  (Kim- 
berly). 

Prim.    Laurence   on    the    Law    and    Custom 
of  Primogeniture. 

Lauss.  Eq.     Laussafs   Equity    in    Pennsylvania. 

Law  Bui.    Law    Bulletin,   San    Francisco. 

Law  Chron.  Law  Chronicle,  London  ; — Law  Chron- 
icle,  Edinburgh. 

Law.  Con.    Lawson   on  Contracts. 

Law  Ex.  J.    Law    Examination   Journal,    London. 

Law  Fr.  d  Lat.  Diet.  Law  French  and  Latin  Dic- 
tionary. 

Law  Int.    Law  Intelligencer. 

Law  J.  Ch.     Law    Journal,    New    Series,    Chancery. 

Law  J.  I.  B.  Law  Journal,  New  Series,  English 
Queen's  Bench. 

Law  J.  P.  D.     Law    Journal,    Probate   Division. 

Law  J.  R.,Q.  B.  Law  Journal  Reports,  English 
Queen's  Bench. 


ABBREVIATION 


54 


ABBREVIATION 


Law  Jour.    Law  Journal.    See  L.  J. 

Law  Jour.  (M.  &  W.).  Morgan  and  Williams's  Law 
Journal,   London. 

Law  Jour.  (Smith's).  J.  P.  Smith's  Law  Journal, 
London. 

Law  Jur.  Law's  Jurisdiction  of  the  Federal 
Courts. 

Law  Lib.  Law  Library,  Philadelphia  (reprint  of 
English   treatises).  4 

Law  Lib.  N.  S.  Law  Library,  New  Series,  Phila- 
delphia. 

Law  Mag.    Law    Magazine,    London. 

Law  Neius.    Law  News,  St.   Louis,  Mo. 

Law  Pat.  Dig.  Law's  Digest  of  Patent,  Copyright 
and  Trade-mark  Cases. 

Law.  PI.  Lawes's  Treatise  on  Pleading  in  As- 
sumpsit. 

Law  Pr.  Law's  Practice  in  the  Courts  of  the 
U.    S. 

Law  Quart.  Rev.    Law    Quarterly   Review,   London. 

Law  Rec.  Law  Recorder,  Reports  in  all  the  Irish 
Courts. 

Law  Rep.  Law  Reporter,  Boston; — Law  Reports. 
See  L.  R. 

Law  Rep.  A.  d  E.  Law  Reports,  Admiralty  and 
Ecclesiastical. 

Law  Rep.  App.  Cas.    Law    Reports,    Appeal    Cases. 

Law  Rep.  C.  C.    Law   Reports,   Crown  Cases. 

Law  Rep.  C.  P.  or  Law  Rep.  C.  P.  D.  Law  Reports, 
Common   Pleas  Division. 

Law  Rep.  Ch.  Law  Reports,  Chancery  Appeal 
Cases. 

Law  Rep.  Ch.  D.    Law  Reports,  Chancery  Division. 

Law  Rep.  Eq.    Law   Reports,    Equity    Cases. 

Law  Rep.  Ex.  or  Law  Rep.  Ex.  D.  Law  Reports,  Ex- 
chequer  Division. 

Law  Rep.  H.  L.  Law  Reports,  House  of  Lords, 
English   and    Irish    Appeal    Cases. 

Law  Rep.  H.  L.  Sc.  Law  Reports,  Scotch  and  Di- 
vorce Appeal    Cases,  House   of   Lords. 

Law  Rep.  Ind.  App.    Law  Reports,  Indian  Appeals. 

Law  Rep.  Ir.     Law  Reports,    Irish. 

Law  Rep.  Misc.  D.  Law  Reports,  Miscellaneous  Di- 
vision. 

Law  Rep.  N.  S.    Monthly     Law     Reporter,     Boston. 

Law  Rep.  P.  C.  Law  Reports,  Privy  Council,  Ap- 
peal Cases. 

Law  Rep.  P.  &  D.  Law  Reports,  Probate  and  Di- 
vorce Cases. 

Law  Rep.  Q.  B.  or  Law  Rep.  Q.  B.  D.  Law  Reports, 
Queen's  Bench  Division. 

Law  Repos.  Carolina  Law  Repository,  North  Car- 
olina. 

Law  Rep.  (Tor.).    Law    Reporter,    Toronto. 

Law  Repos.  Carolina  Law  Repository,  North  Car- 
olina. 

Law  Rev.    Law   Review,   London. 

Law  Rev.  Qu.  Law  Review  Quarterly,  Albany, 
N.  Y. 

Law  Rev.  &  Qu.  J.  Law  Review  and  Quarterly 
Journal,  London. 

Law  Stu.  Mag.    Law    Students'    Magazine,   London. 

Law  Times  or  Law  Times  N.  S.  or  Law  Times  Rep. 
N.  S.  Law  Times  Reports,  New  Series,  English 
Courts,  with  Irish  and  Scotch  Cases. 

Law  Times  (Scranton).     Law  Times,  Scranton,  Pa. 

Law  Weekly.     Law   Weekly,    New   York. 

Law  &  Mag.  Mag.  Lawyers'  and  Magistrates'  Mag- 
azine, London. 

Lawes  C.     Lawes  on  Charter  Parties. 

Lawes  PI.     Lawes  on  Pleading. 

Lawr.  or  Lawrence.  Lawrence's  Reports,  vol.  20 
Ohio. 

Lawrence  Comp.  Dec.  Lawrence's  First  Comptrol- 
ler's Decisions. 

Laws.  Cas.  Crim.  L.  Lawson's  Leading  Cases  in 
Criminal   Law. 

Laws.  Cas.  Eq.  Lawson's  Leading  Cases  in  Equity 
and  Constitutional   Law. 

Laws.  Lead.  Cas.  Simp.  Lawson's  Leading  Cases 
Simplified. 

Lawson  Cont.     Lawson  on  Contracts. 
Lawson,  Usages  &  Cust.     Lawson    on    the    Law    of 
Usages  and  Customs. 

Lawy.  Mag.     Lawyers'  Magazine. 

Lay.    Lay's  Reports,  English  Chancery. 


Ld.  Ken.  Lord  Kenyon's  English  King's  Bench 
Reports. 

Ld.  Raym.  Lord  Raymond's  English  King's 
Bench  Reports. 

Le  Mar.    Le  Marchant's  Gardner  Peerage  Case. 

Lea  or  Lea  B.  J.  Lea's  Tennessee  Reports ; — 
Leach. 

Leach  or  Leach  C.  C.  Leach's  Crown  Cases,  Eng- 
lish Courts. 

Leach  C.  L.     Leach,    Cases   in   Crown   Law. 

Leach  Cas.  or  Leach  CI.  Cas.  Leach's  Club  Cases, 
London. 

Lead.  Cas.  Am.  American  Leading  Cases,  by  Hare 
&   Wallace. 

Lead.  Cas.  Eq.  White  and  Tutor's  Leading  Cases 
in  Equity. 

Leake.  Leake  on  Contracts ; — Leake's  Digest  of 
the  Law  of  Property  in  Land. 

Leake,  Cont.  or  Leake  Contr.     Loake  on   Contracts. 

Leg.  El.  Dr.  Civ.  Rom.  or  Lee.  Elm.  Legons  E16- 
mentaries  du  Droit  Civil   Romain. 

Le  Droit  C.  Can.  Le  Droit  Civil  Canadian,  Mon- 
treal. 

Lee.  Lee's  English  Ecclesiastical  Reports; — 
Lee's  Reports,  vols.  9-12  California. 

Lee  Abs.     Lee  on  Abstracts  of  Title. 

Lee  (Cal.).     Lee's  Reports,  'California. 

Lee  Cas.  Ecc.  Lee's  Cases,  English  Ecclesiastical 
Courts. 

Lee  Cas.  t.  H.  or  Lee  &  E.  Lee's  Cases  tempore 
Hardwicke,   English  King's   Bench. 

Lee,  Diet,  or  Lee  Pr.     Lee's  Dictionary  of  Practice. 

Lee  G.  Sir  George  Lee's  English  Ecclesiastical 
Reports. 

Leese.    Leese's  Reports,  vol.  26  Nebraska. 

Lef.  Dec.  Lefevre's  Parliamentary  Decisions,  re- 
ported   by    Bourke. 

Lefroy.  Lefroy's  English  Railroad  and  Canal 
Cases. 

Leg.     Leges. 

Leg.  Adv.    Legal  Adviser,  Chicago,  111. 

Leg.  Alfred.     Leges  Alfredl   (laws  of  King  Alfred.) 

Leg.  Bibl.     Legal   Bibliography,    by   J.    G.   Marvin. 

Leg.  Burg.     Leges  Burgorum,  Scotland. 

Leg.  Canut.  Leges  Canuti  (laws  of  King  Canute 
or  Knut.) 

Leg.  Chron.  or  Leg.  Chron.  Rep.  Legal  Chronicle 
Reports,    Pottsville,    Pennsylvania. 

Leg.  Edm.  Leges  Edmundi  (laws  of  King  Ed- 
mund.) 

Leg.  Ethel.     Leges   Ethelredi. 

Leg.  Exam.     Legal  Examiner,  London. 

Leg.  Exam.  N.  S.  Legal  Examiner,  New  Series, 
London. 

Leg.  Exam.  &  L.  C.  Legal  Examiner  and  Law 
Chronicle,   London. 

Leg.  Exam.  &  Med.  J.  Legal  Examiner  and  Med- 
ical Jurist,  London. 

Leg.  Exam.  W.  R.  Legal  Examiner,  Weekly  Re- 
porter, London. 

Leg.  Exch.     Legal  Exchange,  Des  Moines,  Iowa. 

Leg.  G.     Legal  Guide,  London. 

Leg.  Gaz.  or  Leg.  Gaz.  R.  or  Leg.  Gaz.  Rep.  (Pa.). 
Legal   Gazette   Reports,   Pennsylvania. 

Leg.  H.  1.     Laws. of  [King]  Henry  the  First. 

Leg.  lnq.     Legal  Inquirer,   London. 

Leg.  Int.    Legal  Intelligencer,  Philadelphia. 

Leg.  News.     Legal  News,   Montreal. 

Leg.  Obs.     Legal    Observer,   London. 

Leg.  Oler.     The  Laws  of  Oleron. 

Leg.  Op.     Legal  Opinions,  Harrisburg,  Penna. 

Leg.  Out.     Legge  on  Outlawry. 

Leg.  Rec.  Rep.     Legal    Record   Reports. 

Leg.  Rem.  Legal  Remembrancer,  Calcutta  High 
Court. 

Leg.  Rep.     Legal  Reporter,  Nashville,   Tenn. 

Leg.  Rep.  (Ir.).     Legal    Reporter,    Irish  Courts. 

Leg.  Rev.     Legal  Review,  London. 

Leg.  Rhod.     Laws  of  Rhodes. 

Leg.  T.  Cas.     Legal   Tender  Cases. 

Leg.  Hit.     The  Last  Law. 

Leg.  Wisb.     Laws  of  Wisbuy. 

Leg.  Y.  B.     Legal  Year  Book,   London. 

Leg.  &  Ins  Rept.  Legal  and  Insurance  Reporter, 
Philadelphia. 


ABBREVIATION 


55 


ABBREVIATION 


Legg.     Leggett's  Reports,  Sind,  India. 

Legge.  Legge's  Supreme  Court  Cases,  New  South 
Wales. 

Lcgul.     The  Leguleian,   London. 

Lehigh  Val.  L.  Rep.     Lehigh  Valley  Law  Reporter. 

Leigh.     Leigh's  Reports,  Virginia. 

Leigh  N.  P.     Leigh's  Nisi  Prius   Law. 

Leigh  &  C.  Leigh  and  Cave's  Crown  Cases,  Eng- 
lish Courts. 

Leigh  d  D.  Conv.  Leigh  and  Dalzell  on  Conversion 
of  Property. 

Leith  R.  P.  St.  Leith's  Real  Property  Statutes, 
Ontario. 

Le  Mar.     Le  Marchant's  Gardner  Peerage  Case. 

Leo.  or  Leon.  Leonard's  Reports,  English  King's 
Bench. 

Lest.  P.  L.  or  Lest.  P.  L.  C.  Lester's  Decisions  in 
Public  Land   Cases.   U.  S.  1860-70. 

Lester.     Lester's   Reports,  vols.  31-33  Georgia. 

Lester  Supp.  or  Lest.  &  But.  or  Lester  d  B.  Lester  & 
Butler's  Supplement  to  Lester's  33d  Georgia  Reports. 

Lev.     Levinz's   Reports,   English   King's   Bench. 

Lew.  Lewln's  English  Crown  Cases  Reserved ; — 
Lewis,   Missouri ; — Lewis's   Reports,   Nevada. 

Lew.  C.  C.     Lewln's  Crown   Cases,  English  Courts. 

Lew.  C.  L.  or  Lew.  Cr.  Law.  Lewis's  Criminal  Law 
of  the  U.  S. 

Lew  L.  Cas.  or  Lew.  L.  Cas.  on  L.  L.  Lewis's  Lead- 
ing Cases  on  Public  Land   Law. 

Lew.  L.  T.  in  Phila.  Lewis  on  Land  Titles  in  Phil- 
adelphia. 

Lew.  Perp.    Lewis  on  the  Law  of  Perpetuities. 

Lew.  Pr.     Lewis's  Principles  of  Conveyancing. 

Lew.  Stocks.     Lewis  on    Stocks,   Bonds,   etc. 

Lew.  Tr.    Lewin  on  Trusts. 

Lewis.  Lewis's  Reports,  vols.  29-35  Missouri  Ap- 
peals ; — Lewis's  Reports,  vol.  1  Nevada  ; — Lewis's 
Kentucky  Law  Reporter. 

Lewis,  Perp.     Lewis  on  the  Law  of  Perpetuity. 

Lex  Cust.    Lex  Custumaria. 

Lex.  Jurid.  Calvinus,  Lexicon  Juridicum  Juris 
Cajsari   slmul  et  Canonici,   etc. 

Lex  Man.    Lex    Maneriorum. 

Lex  Mer.  or  Lex  Mer.  Bed.  Lex  Mercatorla,  by 
Beawcs. 

Lex  Mer.  Am.    Lex  Mercatoria  Americana. 

Lex  Pari.     Lex  Parliamentarla. 

Lex  Salic.    Lex  Salica. 

Ley.  Ley's  English  King's  Bench  Reports  ;— Ley's 
Reports,  English  Court  of  Wards  and  other  Courts. 

Lib.     Liber   (book)  ;— Library. 

Lib.  Ass.  Liber  Assisarum  (Part  5  of  the  Year 
Books). 

Lib.  Ent.     Old  Book  of   Entries. 

Lib.  Feud.  Liber  Feudorum;  Consuetudines  Feu- 
dorum,  at  end  of  Corpus  Juris  Chilis. 

Lib.  Intr.  Liber  Intrationum:  Old  Book  of  En- 
tries. 

Lib.  L.  d  Eq.     Library  of  Law  and  Equity. 

Lib.  Niger.     Liber  Niger,  or   the   Black   Book. 

Lib.  PI.     Liber  Placitandi,  Book   of  Pleading. 

Lib.  Reg.     Register  Books. 

hib.  Rub.     Liber  Ruber,  the  Red  Book. 

Lib.  Ten.     Liber  Tcncmentum. 

Lieb.  Civ.  Lib.  Lieber  on  Civil  Liberty  and  Self- 
Government. 

Lieb.  llerm.     Lleber's  Hermeneutics. 

Lieber  Civ.  Lib.  Lieber  on  Civil  Liberty  and  Self- 
Governmeut. 

Life  d  Ace.  Ins.  or  Life  d  Ace.  Ins.  R.  Life  and  Ac- 
cident  Insurance  Reports    (Bigelow's). 

Ug.  Dig.     Ligon's  Digest   (Alabama). 

Hi.  Lilly's  Reports  or  Entries,  English  Court  of 
Assize. 

Lil.  Abr.     Lilly's  Abridgment. 

Lit.  Reg.     Lilly's  Practical  Register. 

Lind.Jur.     Lindley's  Jurisprudence. 

Lind.  Part,  or  Lindl.  Partn.  Llndley  on  Partner- 
ship. 

Linn  Ind.     Linn's  Index  of  Pennsylvania   Reports. 

Linn,  Laws  Prov.  Pa.  Linn  on  the  Laws  of  the 
Province  of  Pennsylvania. 

Lit.  or  Litt.  Littell's  Kentucky  Reports  ;— Little- 
ton's English  Common  Pleas  and  Exchequer  Reports. 

Lit.  Sel.  Ca.    Littell's  Select  Kentucky  Cases. 


Lit.  8.     Littleton,   section. 
Lit.  Ten.     Littleton's  T< nures. 

Lit.  d  Bl.  Dig.  Littleton  &  Blatchley's  Insuranct 
Digest 

Litt.  (Ky.).     Littell's  Reports,  Kentucky. 

Litt.  Scl.  Cas.     Littell's  Select  Cases,  Kentucky. 

Litt.  Ten.    Littleton's  Ten  Ul 

Litt.  d  B.  Littleton  and  Blatchley's  Digest  of  In- 
surance Deci 

Littrll.     Littell's  Kentucky  Reports. 

Littleton.  Littleton's  English  Common  Pleas  and 
Exchequer  Reports. 

Lie.     Livre,  Book. 

Liv.  Cas.     Livingston's  Cases  In  Error,  New  York. 

Liv.Jud.Op.  Livingston's  Judicial  Opinions,  New 
York. 

Liv.  L.  Mag.  Livingston's  Law  Magazine,  New 
York. 

Liv.  L.  Reg.    Livingston's  Law  Register,  New  York. 
m.  Ag.    Livermore  on  Principal  and  Agent 

Liverm.  Diss.  Livermore's  Dissertation  on  the 
Contrariety  of  Laws. 

Liz.  Sc.  Exch.    Lizars's  Scotch  Exchequer  Cases. 

LI.     Leges,   Laws. 

LI.  d  G.  t.  P.  Lloyd  &  Goold's  Irish  Chancery  Re- 
ports tempore  Plunkett 

LI.  d  O.  t.  S.  Lloyd  &  Goold's  Irish  Chancery  Re- 
ports tempore  Sugden. 

LI.  d  W.  or  Lloyd  d  W.  Lloyd  &  Welsby's  English 
Mercantile    Cases. 

Llo.  Ch.  St.     Lloyd's  Chitty's  Statutes. 

Llo.  T.  M.     Lloyd  on  Trademarks. 

Llo.  d  G.  t.  P.  Lloyd  and  Goold's  Reports,  tem- 
pore Plunkett,  Irish  Chancery. 

Llo.  d  G.  t.  S.  Lloyd  and  Goold's  Reports,  tem- 
pore Sugden,  Irish  Chancery. 

Llo.  d  W.,  Lloyd  d  W.,  or  LZo.  d  TV.  Mer.  Cas. 
Lloyd  and  Welsby's  Mercantile  Cases,  English 
King's   Bench. 

Loc.  cit.     Loco  citato.  In  the  place  cited. 

Loc.  Ct.  Gaz.  Local  Courts  and  Municipal  Gazette. 
Toronto,    Ont 

Locc.  de  Jur.  Mar.  Loccenius,  de  Jure  Maritimo 
et   Navall. 

Lock.  Rev.  Ca.  or  Lock.  Rev.  Cas.  Lockwood's  Re- 
versed Cases,  New  York. 

Locus  Stayidi.     Locus  Standi  Reports,  English. 

Lofft.     Lofft's  Reports,  English  King's  Bench. 

Lotft,  Append.  Lofft's  Maxims,  appended  to  Lofft's 
Reports. 

Log.  Comp.  Logan's  Compendium  of  English. 
Scotch,  and  Ancient  Roman  Law. 

Lois  des  Batim.     Lois  des  Batiments. 

Lorn.  C.  H.  Rep.  Lomas's  City  Hall  Reporter,  New- 
York. 

Lorn.  Dig.  Lomax's  Digest  of  the  Law  of  Real 
Property  in  the  U.  S. 

Lond.     London   Encyclopedia. 

Lond.  Jur.  London  Jurist,  Reports  In  all  the 
Courts. 

Lond.  Jur.  N.  S.     London    Jurist,    New    Series. 

Lond.  L.  Mag.     London   Law   Magazine. 

Long  Q.  or  Long  Qu int.  Long  Quinto  (Year  Books, 
Part  X). 

Longf.  d  T.  or  Long,  d  Town.  Longfleld  &  Town- 
send's  Irish  Exeh<  quer  Hep  >rta 

Lor.  Inst.     Lorimer's   Insli. 

Lor.  d  Rush.  Loring  &  Russell,  Election  Cases. 
Massachusetts. 

Lords  Jour.    Journal  of  the  House  of  Lords. 

Lorenz  (Ceylon).     Lorenz's  I 

Loring  d  Russell.  Loring  &  Russell's  Massachu- 
setts Election  Ca 

Lou.  or  Louis.     Louisiana  (see  La). 

Louis.  Code.     Civil   Code  of  Lou 

Love.  Wills.    Lovelass  on  v. 

or  Low.  Dis.     Lowell's   Decisions,   TJ.   S.    Di>t. 
of   Massachusetts. 

Low.  Con.  or  Low.  Can.  R.     Lower  Canada  Reports. 

Low.  Can.  Jur.    Lower  Canada  Jurist,  Montreal. 

Loto.  Can.  L.  J.     Lower  Canada  Law  Journal. 

Low.  Can.  Repts.     Lower  Canada  Reports. 

Low.  C.  Scign.  or  Low.  Can.  Scign.  Lower  Canada 
Seignorial  Reports. 


ABBREVIATION 


56 


ABBREVIATION 


Lowell.    Lowell's  United  States  District  Court  Re- 
ports. 
Lown.  Av.     Lowndes  on   Average. 
Lovm.  Col.    Lowndes  on  Collisions  at  Sea. 
Lown.  Leg.    Lowndes  on  Legacies. 
Lown.  M.  &  P.      Lowndes,     Maxwell    and    Pollock's 
Bail  Court  Reports,  English. 

Lown.  &  M.     Lowndes    and    Maxwell's    Ball    Court 
Reports,  English. 
Lube  Eq.     Lube  on  Equity  Pleading. 
Luc.  or  Lucas.    Lucas's    Reports,    Part   X    Modern 
Reports. 
Lud.  El.  Cas.     Luder's  Election  Cases,  English. 
Ludd.  or  Ludden.     Ludden's    Reports,    vols.    43,    44 
Maine. 

Lum.  Cas.  or  Lum.  P.  L.  Cas.     Lumley's   Poor   Law 
Cases. 
Lum.  Pari.  Pr.     Lumley's   Parliamentary  Practice. 
Lum.  Set.     Lumley   on   Settlements    and    Removal. 
Lumpkin.    Lumpkin's  Reports,  vols.  59-77  Georgia. 
Lush,  or  Z,«s7i.  Adm.     Lushington's   Admiralty   Re- 
ports, English. 
Lush.  P.  L.     Lushington  on  Prize   Law. 
Lush  Pr.    Lush's  Common  Law  Practice. 
Lut.    Lutwyche's  Reports,  English  Common  Pleas. 
Lut.  Elec.  Cas.     Lutwyche's    Election    Cases,   Eng- 
lish. 
Lut.  Ent.    Lutwyche's  Entries. 

Lut.  R.  C.     Lutwyche's    English    Registration    Ap- 
peal  Cases. 

Lutw.  E.     Lutwyche's  English  Common  Pleas  Re- 
ports. 
Luz.  30.  J.     Luzerne   Law   Journal. 
Luz.  L.  T.     Luzerne  Law  Times. 
Luz.  Leg.  Ob.      Luzerne    Legal    Observer,    Carbon- 
dale    Pa. 

Luz.  Leg.  Reg.     Luzerne    Legal    Register,   Wilkes- 
barre,  Pa. 
Lynd.  Prov.     Lyndwood's  Provinciales. 
Lyne.     Lyne's  Reports,   Irish  Chancery. 
M.    Massachusetts;    —    Maryland;    —    Maine;    — 
Michigan;    —    Minnesota;    —    Mississippi;    —    Mis- 
souri ;— Montana  ;— Queen  Mary;    thus  1  M.  signifies 
the  first  year  of  the  reign  of  Queen  Mary;— Michael- 
mas Term.    Mortgage  ;— Morison's  Dictionary  of  De- 
cisions,   Scotch    Court    of    Session;— Session    Cases, 
3d  Series,  Scotland  (Macpherson) ;— See  Mc. 
M.  A.    Missouri  Appeals. 
M.  Cas.    Magistrates'    Cases. 

M.  G.  C.    Moody's  English  Crown  Cases,  Reserved. 
M.  D.  &  D.  or  M .  D.  &  De  G.    Montague,  Deacon  and 
DeGex's   Reports,    English   Bankruptcy. 

M.  G.  &  S.    Manning,    Granger     and     Scott's     Re- 
ports,  English  Common  Pleas,   Common  Bench  Re- 
ports, vols.  1-8. 
M.  L.    Mercian   Law. 

M.  L.  J.    Memphis   Law    Journal,   Tennessee. 
M.  L.  R.    Maryland  Law  Record,   Baltimore. 
M.  M.  R.    Mitchell's  Maritime   Register,   London. 
M.  P.  C.    Moore's    Privy    Council    Cases,    English. 
M.  R.    Master  of  the  Rolls. 
M.  St.    More's    Notes  on   Stair's   Institutes. 
M.  T.    Michaelmas  Term. 

M.  &  A.  or  M .  &  Ayr.  Montagu  &  Ayrton's  English 
Bankruptcy  Reports. 

M .  &  B.  Montagu  and  Bligh's  Reports,  English 
Bankruptcy. 

M.  &  C.  Mylne  &  Craig's  English  Chancery  Re- 
ports;—Montagu  &  Chitty's  English  Bankruptcy 
Reports. 

M.  &  C.  Banter,  or  M.  &  CM.  Bankr.  Montagu  and 
Chitty's  Bankruptcy  Reports,  English. 

M.  &  G.  Manning  &  Granger's  English  Common 
Pleas  Reports;— Maddock  &  Geldart's  English  Chan- 
cery  Reports,   vol.   6   Maddock's  Reports. 

M.  &  Gel.  Maddock  &  Geldart's  English  Chancery 
Reports,  vol.  6  Maddock's  Reports. 

M.  &  Gord.  Macnaghten  &  Gordon's  English  Chan- 
cery Reports. 

M.  &  H.  Murphy  and  Hurlstone's  Exchequer  Re- 
ports. 

M.  &  K.  Mylne  and  Keen's  Reports,  English  Chan- 
cery. 

M.  &  M.  Moody  and  Malkin's  Reports,  English 
Nisi   Prius. 


M.  &  McA.  Montague  and  McArthur's  Reports, 
English  Bankruptcy. 

M.  &  P.  Moore  and  Payne's  Reports,  English 
Common  Pleas  and  Exchequer. 

M.&R.  Manning  &  Ryland's  English  King's 
Bench  Reports  ;— Moody  &  Robinson's  English  Nisi 
Prius  Reports ;— Maclean  &  Robinson's  Scotch  Ap- 
peal Cases. 

M.  &  R.  M.  C.  Manning  and  Ryland's  Magistrate 
Cases,   English  King's  Bench. 

M.  &  Rob.  Moody  and  Robinson's  Nisi  Prius  Cas» 
es,  English   Courts. 

M.  &  S.    Maule  &   Selwyn's   English  King's   Bench    i 
Reports;— Moore   &    Scott's   English    Common    Pleas 
Reports;— Manning   &    Scott's    Reports,   vol.   9   Com- 
mon  Bench.    ' 

M.  &  Scott.  Moore  and  Scott's  Reports,  English 
Common  Pleas. 

M.  &  W.    Meeson    and    Welsby's    Reports,    English 
Exchequer. 
M.  <i  Y.    Martin  and  Yerger's  Reports,  Tennessee.    . 
Mac.    Macnaghten's  English   Chancery  Reports. 
MacAr.    MacArthur's    District    of    Columbia    Re- 
ports;—MacArthur's   Patent  Cases. 
MacAr.  Pat.  Cas.    MacArthur's   Patent   Cases. 
MacAr.  &  M.  or  MacAr.  &  Mackey.    MacArthur    and 
Mackey,   Reports  of  District  of  Columbia   Supreme 
Court. 

MacArth.  or  MacArthur.  MacArthur's  District  of 
Columbia  Reports  ;— MacArthur's  Patent  Cases. 

MacArth.  Pat.  Cas.    MacArthur,  Patent  Cases,  Dis- 
trict of   Columbia. 
Mac.  N.  Z.    Macassey's   New  Zealand   Reports. 
Mac.  Pat.  Cas.    Macrory's  Patent  Cases. 
Mac.  &  G.    Macnaghten  &  Gordon's  English  Chan- 
cery Reports. 

Mac.  &  Rob.    Maclean  &  Robinson's  Scotch  Appeal 
Cases. 
Macas.    Macassey's   Reports,   New  Zealand. 
Mace.  Cas.    Maccola's  Breach  of  Promise  Cases. 
Maccl.    Macclesfield's  Reports,  10  Modern  Reports. 
Maccl.  Tr.    Macclesfield's      Trial      (Impeachment), 
London,  1725. 
Maccles.    Macclesfield's    Reports    (10    Modern). 
Macd.  Jam.    Macdougall's    Jamaica    Reports. 
Macf.     or    Macfar.    Macfarlane's     Reports,     Jury 
Courts,  Scotland. 

Macf.  Pr.    Macfarlane's  Practice   of   the   Court   of 
Session. 
Slack.  C.  L.    Mackeldey   on   Civil   Law. 
Mack.  Cr.  L.    Mackenzie  on    the  Criminal   Law   of 
Scotland. 

Mack.  Inst.  Mackenzie's  Institutes  of  the  Law  of 
Scotland. 

Mqck.  Obs.  Mackenzie's  Observations  on  Acts  of 
Parliament. 

Mack.  Rom.  L.  Mackenzie's  Studies  in  Roman 
Law. 

Mackeld.  Mackeldey  on  Modern  Civil  Law  ;— 
Mackeldey   on    Roman    Law. 

Mackeld.  Civil  Law.    Mackeldey    on    Modern    Civil 
Law. 
Mackeld.  Rom.  Law.    Mackeldey  on  Roman  Law. 
Mackey.    Mackey's    Supreme    Court   Reports,    Dis- 
trict of  Columbia. 

Macl.    McLean's  United   States  Circuit  Court  Re- 
ports ;— Maclaurin's  Scotch   Criminal  Decisions. 
Macl.  Dec.    Maclaurin's  Decisions,    Scotch   Courts. 
Macl.  Sh.    Maclachlan  on  Merchant  Shipping. 
Macl.  d  R.    Maclean    and    Robinson's    Scotch    Ap- 
peals. 

Macn.    Macnaghten's    Select    Cases    in    Chancery 
tempore  King;— W.  H.  Macnaghten's  Reports,  India. 
Macn.  C.  M.    Macnaghten   on    Courts   Martial. 
Macn.  F.  or  Macn.  (Fr.).    Sir      Francis      Macnagh- 
ten's  Bengal   Reports. 

Macn.  N.  A.  Beng.  Macnaghten's  Nizamut  Adaw- 
lut  Reports,  Bengal. 

Macn.  Nul.  Macnamara  on  Nullities  and  Irregu- 
larities in  the  Practice  of  the  Law. 

Macn.  S.  D.  A.  Beng.  (W.  H.)  Macnaghten's  Sudder 
Dewanny  Adawlut  Reports,  Bengal. 

Macn.  &  G.    Macnaghten     and     Gordon's     Reports, 
English  Chancery. 
Macomb  C.  M.    Macomb    on  Courts    Martial. 


ABBREVIATION 


57 


ABBREVIATION 


Macph.  Macpherson,  Lee  &  Bell's  (Third  Series) 
Scotch  Court  of  Session .  Cases. 

Macph.  Inf.    Macpherson  on  Infancy. 

Macph.  Jud.  Com.  Macpherson,  Practice  of  the 
Judicial  Committee  of  the  Privy  Council. 

Macph.  Priv.  Coun.  Macpherson's  Privy  Council 
Practice. 

Macq.  Macqueen's  Scotch  Appeal  Cases  (House 
of  Lords). 

Macq.  Deb.  Macqueen's  Debates  on  Life  Peerage 
Question. 

Macq.  II.  L.  Cas.    Macqueen's   Scotch  Appeal   Cases 
of  Lords). 
/.  II.  &  W.    Macqueen    on   Husband   and    Wife. 

Macq.  M.  <£•  D.  Macqueen  on  Marriage  and  Di- 
vorce. 

Macr.  P.  Cas.    Macrory's  Patent  Cases. 

Macr.  <t  H.  Macrae  and  Hertslet's  Insolvency 
Cases. 

MacSwin.  Mines.  MacSwinney,  Law  of  Mines, 
Quarries,  and  Minerals. 

Mad.  Maddock's  English  Chancery  Reports;— Ma- 
dras;— Maddox's   Reports,   vols.  9-19   Montana. 

Mad.  Exch.    Madox's  History  of  the  Exchequer. 

Mad.  Form.    Madox's   Formulare  Anglicarum. 

Mad.  H.  C.  or  Mad.  H.  Ct.  Rep.  Madras  High  Court 
Reports. 

Mad.  Jur.    Madras   Jurist,   India. 

Mad.  Papers.    Madison's   (James)   Papers. 

Mad.  S.  D.  A.  R.  or  Mad.  S.  D.  R.  Madras  Sudder 
Dewanny  Adawlut  Reports. 

Mad.  Sel.  or  Mad.  Sel.  Dec.    Madras  Select  Decrees. 

Mad.  Ser.  Madras .  Series  (East)  India  Law  Re- 
ports. 

Mad.  &  B.  Maddox  &  Bach's  Reports,  vol.  19  Mon- 
tana. 

Mad.  &  Gel.  Maddock  &  Geldart's  English  Chan- 
cery  Reports,   vol.   6  Maddock's   Reports. 

Madd.  Maddock's  English  Chancery  Reports;— 
Maddox's  Reports,  vols.  9-18  Montana. 

Madd.  Ch.  Pr.    Maddock's  Chancery  Practice. 

Madd.  &  G.  Maddock  and  Geldart's  Reports,  Eng- 
lish Chancery  (vol.   6,  Maddock's  Reports). 

Mag.    The  Magistrate,   London. 

Mag.  Cas.  Magistrates's  Cases,  especially  the  se- 
ries edited  by  Bittleston,  Wise,  &  Paraell. 

Mag.  Char.  Magna  Carta  or  Charta.  See  Bar- 
rington/s  Revised  Statutes  of  England,  1870,  vol.  1, 
p.  84,  and  Coke's  Second  Institute,  vol.  1,  first  78 
pages. 

Mag.  Dig.    Magrath's   South   Carolina   Digest 
.  Ins.    Magen  on   Insurance. 

Mag.  (Md.).  Magruder's  Reports,  Maryland,  vols. 
1-2. 

Mag.  Rot.  Magus  Rotulus  (the  Great  Roll  of  the 
Exchequer). 

Mag.  &  M.  &  P.  L.  Magistrate  and  Municipal  and 
Parochial   Lawyer. 

Magr.  or  Magruder.  Magruder's  Reports,  vols.  1, 
2  Maryland. 

Maine.    Maine  Reports. 

Maine  Anc.  L.  or  Maine  Anc.  Law.  Maine  on  An- 
cient   Law. 

Maine,  Popular  Govt.    Maine,  Popular  Government. 

Maine  Vil.  Coin.    Maine    on    Village    Communities. 

Maitland.  Maitland's  Manuscript  Scotch  Session 
Cases. 

Mai.    Malyne's    Lex   Mercatoria. 

Mall.  Ent.    Mallory's   Modern   Entries. 

Malloy.    Malloy's   Irish   Chancery  Reports. 

Malone.  Editor,  vols.  6,  9,  and  10,  Heiskell's  Ten- 
nessee Reports. 

ilfan.  Manning's  Reports  (English  Court  of  Revi- 
sion) ;— Manitoba  ;— Manning's  Reports,  vol.  1  Mich- 
igan ;— Manuscript ;— Manson's  English  Bankruptcy 
Cases. 

Man.  Cas.  Manumission  Cases  In  New  Jersey,  by 
Bloomfleld. 

Man.  El.  Cas.  Manning's  English  Election  Cases 
(Court  of  Revision). 

Man.  Exch.  Pr.     Manning's  Exchequer  Practice. 

Man.  Gr.  &■  S.  Manning,  Granger  and  Scott's  Re- 
ports, English  Common  Pleas. 

Man.  Int.  Law.  Manning,  Commentaries  on  the 
Law  of  Nations. 


Man.  L.  R.    Manitoba  Law  Reports. 

Man.  <£-  Q.  Manning  and  Granger's  Reports,  Eng- 
lish Common  Pleas. 

Man.  d;  R.  or  Man.  i£  Ry.  Manning  and  Poland's 
Reports,   English  King's  Be; 

nlng  and  Ryland's  Magistrate  Cases,  English  King* 
Bench. 

Man.  <£■  S.    Manning  4i  Scott 
mon  Bench. 

Manb.  Coke.     Manby's   Abridgment   of    Cok 
ports. 

Manitoba.     Armour's   Queen's    Bench    and    County 
Court  Reports  tempore  Wood,  Manitoba  ;— M  . 
Law  Reports. 

Manl.  Fine3.     Manley  on  Fines. 

Mann.  Manning's  Reports,  Michigan  Reports, 
vol.  1. 

Mann.  Com.  Manning's  Commentaries  on  the  Law 
of   Nations. 

Manning.  Manning's  Unreported  Cases  ;— Louisi- 
ana ;— Manning's  Reports,  vol.  1  Michigan. 

Manning,  La.     Unreported  Cases,   Louisiana. 

Mans.  Mansfield's  Reports,  vols.  49-52  Arkansas  ; 
— Mauson,  English  Bankruptcy  Cases. 

Manaon.    Manson's  English  Bankruptcy  Cases. 

Manum.  Cas.  or  Manum.  Cases.  Manumission  Cas- 
es, New  Jersey   (Bloomfleld's). 

Manio.  or  Manw.  For.  Laws.  Manwood's  Forest 
Laws. 

Mar.  March's  English  King's  Bench  Reports  ;— 
Marshall's  United  States  Circuit  Court  Reports  ;— 
Marshall's  Kentucky  Reports  ; — Martin's  Louisiana 
Reports  ;— Martin's  North  Carolina  Reports  ;— Mar- 
shall's    Reports,     Bengal  ;— Maryland  ;— Maritime. 

Mar.  Br.  March's  Translation  of  Brook's  New 
Cases. 

Mar.  L.  C.  or  Mar.  L.  Cas.  or  Mar.  L.  Rep.    Maritime 
Law  Cases  (Crockford's),  English. 
'  Mar.  L.  C.  N.  S.  or  Mar.  L.  Cas.  N.  S.  or  Mar.  L. 
Rep.  N.  S.     Maritime  Law  Reports,  New  Scries  (As- 
pinall's),   English. 

Mar.  La.     Martin's   Louisiana  Reports. 

Mar.  N.  C.     Martin's  North   Carolina    Reports. 

Mar.  N.  S.  Martin's  Louisiana  Reports,  New  Se- 
ries. 

Mar.  R.     English  Maritime  Law  Reports. 

Mar.  Rec.  B.     Martin's  Recital  Book. 

Mar.  Reg.     Mitchell's    Maritime   Register,    London. 

March.  March's  Translation  of  Brooke's  New 
Cases,   King's  Bench. 

March  N.  C.  March's  New  Cases,  English  King's 
Bench. 

Marine  Ct.  R.  Marine  Court  Reporter  (McAdam's), 
New  York. 

Mark.  El.     Markley's   Elements  of   Law. 

Marks  £  Sayre.  Marks  &  Sayre's  Reports,  vol.  108 
Alabama. 

iWarr.  Marriott's  English  Admiralty  Decisions;— 
Marrack's  European  Assurance  Cases. 

Marr.  Adm.  Marriott's  Reports,  English  Admir- 
alty. 

Mars.     Marsden-*s  English  Admiralty  Reports. 

Marsh.  Marshall's  United  States  Circuit  Court 
Decisions; — Marshall's  English  Common  Pleas  Re- 
ports ; — Marshall's  Bengal  Reports  ;— Marshall,  Ken- 
tucky ;— Marshall's   Reports,   vol.   4   Utah. 

Marsh.  (A.  K.J.  A.  K.  Marshall's  Kentucky  Re- 
ports. 

Marsh.  Beng.     Marshall's  Reports,    Bengal. 

Marsh.  C.  P.  Marshall's  English  Common  Pleas 
Reports. 

Marsh.  Cole.     Marshall's  Reports,  Calcutta. 

Marsh.  Ceylon.     Marshall's  Ceylon  Reports. 

Marsh.  Dec.  Marshall's  United  States  Circuit 
Court  Decisions  (Brockenbrough)  ;— Marshall  on  the 
Federal  Constitution. 

Marsh.  Ins.     Marshall   on   Insurance. 

Marsh.  J.  J.      J.   J.    Marshall's    Reports.   Kentucky. 

Marsh.  (Ky.)  or  Marsh.  A.  K.  A.  K.  Marshall's  Re- 
ports, Kentucky. 

Marsh.  Op.  Marshall's  (Chief  Justice)  Constitu- 
tional Opinions. 

Mart,  or  Mart.  (La.).  Martin's  Reports,  Louisi- 
ana;— (see  Martin). 


ABBREVIATION 


58 


ABBREVIATION 


Mart.  Oond.  La.  Martin's  Condensed  Louisiana 
Reports. 

Mart.  Dec.  United  States  Decisions  in  Martin's 
North  Carolina  Reports. 

Mart.  (Ga.).    Martin's  Reports,  Georgia. 

Mart.  (Ind.).     Martin's  Reports,  Indiana. 

Mart.  (La.).    Martin's  Louisiana  Reports. 

Mart.  Law  Nat.     Martin's  Law  of  Nations. 

Mart.  (N.  C).     Martin's   Reports,   North   Carolina. 

Mart.  N.  S.  or  Mart.  (La.)  N.  S.  Martin's  Re- 
ports, New  Series,  Louisiana. 

Mart.  O.  S.  (La.).  Martin's  Louisiana  Reports,  Old 
Series. 

Mart.  U.  8.  C.  C.  Martin's  United  States  Circuit 
Court  Reports. 

Mart.  <£-  Y.  or  Mart.  &  Yeag.  Martin  and  Yeager's 
Reports,    Tennessee. 

Marth.  W.  Ca.  Martha  Washington  Case,  see  Unit- 
States  v.  Cole,   5  McLean,  513,  Fed.   Cas.   No.   14,832. 

Martin:  Martin's  Louisiana  Reports ;— Martin's 
North  Carolina  Reports ;— Martin's  Reports,  vols. 
21-30  Georgia ;— Martin's  Reports,  vols.  54-70  Indi- 
ana. 

Martin  Index.    Martin's  Index  to  Virginia  Reports. 

Marv.    Marvel's  Reports,  Delaware. 

Marv.  Av.    Marvin  on  General  Average. 

Marv.  Leg.  Bibl.    Marvin's  Legal  Bibliography. 

Marv.  Salv.  or  Marv.  Wr.  &  S.  Marvin  on  Wreck 
and  Salvage. 

Maryland.     Maryland  Reports. 

Mas.  or  Mason  (U.  S.).  Mason's  United  States  Cir- 
cuit Court  Reports. 

Mass.    Massachusetts  ;— Massachusetts  Reports. 

Mass.  Dr.  Com.    Masse's  Le  Droit  Commercial. 

Mass.  Elec.  Ca.     Massachusetts  Election  Cases. 

Mass.  L.  R.     Massachusetts   Law  Reporter,   Boston. 

Massey  v.  Headford.  An  Irish  Criminal  Conversa- 
tion Case,  1804.  Originally  printed  in  Ireland  and 
reprinted  both  in  New  York  and  Philadelphia. 

Mast.  Master's  Reports,  vols.  25-28  Canada  Su- 
preme Court. 

Mat.     Mathews. 

Mat.  Par.  or  Paris.  Matthew  Paris,  Historia  Mi- 
nor. 

Math.  Ev.     Matthews  on  Presumptive  Evidence. 

Mathews.  Mathews's  Reports,  vols.  6-9  West  Vir- 
ginia. 

Mats,  or  Matson.  Matson's  Reports,  vols.  22-24 
Connecticut. 

Matth.  (W.Va.).  Matthews's  Reports,  West  Vir- 
ginia  Reports,  vol.  6. 

Matth.  Com.  Matthews's  Guide  to  Commissions  In 
Chancery. 

Matth.  Dig.     Matthews's  Digest. 

Matthews.     Matthews's   Reports,   vol.   75  Virginia. 

Mau.  &  Pol.  Sh.  Maude  and  Pollock's  Law  of  Ship- 
ping. 

Man.  &  Sel.  Maule  &  Selwyn's  Reports,  English 
King's   Bench. 

Maude  &  P.  Mer.  Shipp.  Maude  &  Pollock's  Law  of 
Merchant   Shipping. 

Mavde  &  P.  Shipp.  Maude  &  Pollock's  Law  of  Mer- 
chant Shipping. 

Maug.  Lit.  Pr.     Maughan  on  Literary  Property. 

Maul.  &  Sel.  or  Maule  &  S.  Maule  &  Selwyn's  Eng- 
lish King's  Bench   Reports. 

Maur.  Dec.    Mauritius  Decisions. 

Max.     Maxims. 

Max.  Dig.    Maxwell's  Nebraska  Digest. 

Maxu).  Int.  Sts.  or  Maxw.  Interp.  St.  Maxwell  on 
the   Interpretation  of  Statutes. 

May  Const.  Hist.     May's  Constitutional  History  of 
England. 
May  Crim.  L.     May's  Criminal  Law. 
May  Fr.  Conv.    May  on  Fraudulent  Conveyances. 
May  Hist.     May's  Constitutional  History  of   Eng- 
land. 
May  Ins.    May  on  Insurance. 
May.  Merg.     Mayhew  on  Merger. 
May  P.  L.  or  May,  Pari.  Law.    May's  Parliamentary 
Law. 
May,  Pari.  Pr.    May's  Parliamentary  Practice. 
Maymo  Inst.     Maymo's  Romani  et   Hispani  Juris 
Institutiones. 


Mayn.  Maynard's  Reports,  Edward  II.  (Year 
Books,  Part  I). 

Mayne  Dam.     Mayne   on    Damages. 

Mayo  Just.     Mayo's  Justice. 

Mayo  &  Moul.     Mayo  and  Moulton's  Pension  Laws. 

McAl.  or  McAll.  McAllister's  United  States  Circuit 
Court   Reports. 

McArth.     McArthur's   Reports,   Dist.   of   Columbia. 

McArth.  C.  M.     McArthur  on  Courts  Martial. 

McBride.    McBride's  Reports,  vol.  1  Missouri. 

McCah.  or  McCahon.  McCahon's  Reports,  Supreme 
Court  of  Kansas  and  U.  S.  Courts,  Dist  of  Kansas. 

McCall  Pr.     McCall's  Precedents. 

McCar.  or  McCart.  McCarter's  New  Jersey  Equity 
Reports,  vols.  14,  19 ;— McCarty's  New  York  Civil 
Procedure    Reports. 

McCl.     McClelland's  English  Exchequer  Reports. 

McCl.  &  Y.  McClelland  &  Younge's  English  Ex- 
chequer  Reports. 

McClain  Cas.  Car.    McClain's  Cases  on  Carriers. 

McClel.    McClelland's  Reports,  English  Exchequer. 

McClel.  Pro.  Pr.    McClellan's    Probate    Practice. 

McClel.  &  Y.  McClelland  and  Younge's  Reports, 
English   Exchequer. 

McCook.    McCook's  Reports,  vol.  1  Ohio  State. 

McCord.    McCord's   Law    Reports,  South   Carolina. 

McCord  Ch.  or  McCord  Eq.  McCord's  Equity  Re- 
ports, South  Carolina. 

McCork.  or  McCorkle.  McCorkle's  Reports,  North 
Carolina,    vol.    65. 

McCr.  McCrary's  United  States  Circuit  Court  Re- 
ports. 

McCr.  Elect.  McCrary's  American  Law  of  Elec- 
tions. 

McCrary.  McCrary,  United  States  Circuit  Court 
Reports. 

McCul.  Diet.  McCullough's  Commercial  Diction- 
ary. 

McCul.  Pol.  Econ.    McCulloch,    Political    Economy. 

McCull.  Diet.  McCullough's  Commercial  Diction- 
ary. 

McDevitt.  McDevitt's  Land  Commissioner's  Re- 
ports,  Ireland. 

McDon.  Inst.  McDonall's  Institutes  of  the  Law  of 
Scotland. 

McFar.    McFarlane's  Reports  (Scotch  Jury  Court). 

McGill  or  McGill  Sc.  Sess.  McGill's  Manuscript 
Decisions  Scotch  Court  of  Session.  • 

McCl.  or  McGloin.    McGloin's   Louisiana  Reports. 

McKinn.  Jus.    McKinney's    Justice. 

McKinn.  Phil.  Ev.  McKinnon's  Philosophy  of  Ev- 
idence. 

McL.  or  McLean.  McLean's  United  States  Circuit 
Court  Reports. 

McL.  &  R.  McLean  &  Robinson's  Scotch  Appeal 
Cases. 

McM.  Com.  Dec.  McMaster's  Commercial  Deci- 
sions. 

McMas.  R.  L.  McMaster's  Railroad  Law,  New 
York. 

McMul.  or  McMull.  McMullan's  South  Carolina 
Law   Reports. 

McMul.  Eq.  or  McMull.  Ch.  or  McMull.  Eq.  Mc- 
Mullan's South  Carolina  Equity  Reports. 

McNagh.    McNaghten   (see  Macn.). 

McNagh.  Elem.  McNaghten's  Elements  of  Hindoo 
Law. 

McPherson.  McPherson,  Lee,  &  Bell's  (Third  Se- 
ries)   Scotch    Session   Cases. 

McWillie.  McWillie's  Reports,  vols.  73-76  Missis- 
sippi. 

M d.  Maryland  ;— Maryland  Reports  ;— Harris  & 
McHenry's  Maryland  Reports. 

Md.  Ch.  Maryland  Chancery  Decisions,  by  John- 
son. 

Md.  L.  Rec.    Maryland  Law  Record,   Baltimore. 

Md.  L.  Rep.    Maryland    Law    Reporter,    Baltimore. 

Md.  L.  Rev.    Maryland    Law    Review. 

Me.    Maine;— Maine  Reports. 

Means.    Means's   Kansas   Reports. 

Mechem.  Ag.    Mechem  on  Agency. 

Mech.  Cas.  Ag.    Mechem's    Cases  on   Agency. 

Med.  Jur.    Medical    Jurisprudence. 

Med.  L.  J.  or  Med.  Leg.  J.  Medico  Legal  Journal, 
New  York. 


ABBREVIATION 


59 


ABBREVIATION 


Med.  L.  N.    Medico    Legal    News,    New   York. 

Med.  L.  P.    Medico  Legal  Papers,  New  York. 

Mcdd.    Meddaugb's    Reports,    vol.    13    Michigan. 

Mees.  &  Ros.  Meeson  &  Roscoe's  English  Excheq- 
uer Reports. 

Mecs.  &  W.  or  Mees.  &  Wels.  Meeson  &  Welsby's 
English  Exchequer    Reports. 

Meg.    Megone's   Company   Case. 

Meigs.    Meigs's  Tennessee. 

Melv.  Tr.  Melville's  Trial  (Impeachment),  Lon- 
don. 

Mem.  in  Scacc.  Memorandum  or  memoranda  In  the 
Exchequer. 

Mem.  L.  J.    Memphis  Law  Journal,   Tennessee. 

Menken.  Menken's  Reports,  vol.  30  New  York 
Civil    Procedure    Reports. 

Menu.     Menzics's    Reports,   Cape  of  Good  Hope. 

Mer.    Merivale's    Reports,    English   Chancery. 

Merc.  Cas.    Mercantile   Cases. 

Merch.  Diet.     Merchant's     Dictionary. 

Meriv.    Merivale's   English  Chancery  Reports. 

Merl.  Quest.    Merlin,   Questions  de  Droit, 

Merl.  Rupert.  Merlin's  Repertoire  de  Jurispru- 
dence. 

Met.  or  Mete.  Metcalf's  Massachusetts  Reports; — 
Metcalfe's  Kentucky  Reports;— Metcalf's  Ri  ports, 
vol.  3  Rhode  Island. 

Mete.  Contr.    Metcalf   on    Contracts. 

Mete.  (Ky.).    Metcalfe's    Reports,   Kentucky. 

Mete.  (Mass.).  Metcalf's  Reports,  Massachusetts 
Reports,  vols.   42-54. 

Mefh.  Ch.  Ca.  or  Meth.  Ch.  Cas.  Report  of  Metho- 
dist Church  Case. 

Mich.   Michigan  ;— Michigan  Reports  ;— Michaelmas. 

Mich.  C.  C.  R.  or  Mich.  Cir.  Ct.  Rep.  Michigan  Cir- 
cuit Court  Reporter,  Marquette. 

Mich.  L.    Michigan    Lawyer,    Detroit,    Mich. 

Mich.  L.J.    Michigan  Law  Journal,  Detroit,  Mich. 

Mich.  Lawyer.    Michigan    Lawyer,    Detroit,    Mich. 

Mich.  Leg.  News.    Michigan   Legal   News. 

Mich.  N.  P.    Michigan  Nisi  Prius  Cases   (Brown's). 

Mich.  Pol.  Soc.  Michigan  Political  Science  Asso- 
ciation. 

Mich.  Rev.  St.    Michigan   Revised  Statutes. 

Mich.  T.    Michaelmas    Term. 

Mich.  Vac.    Michaelmas   Vacation. 

Middx.  Sit.    Middlesex  Sittings  at  Nisi  Prius. 

Mil.  Miles's  Pennsylvania  Reports ;— Miller  (see 
Mill.). 

Miles.  Miles's  District  Court  Reports,  City  and 
County  of  Philadelphia,  Pennsylvania. 

Mill.  Mill's  South  Carolina  Constitutional  Re- 
ports;—Miller's  Reports,  vols.  1-5  Louisiana; — Mil- 
ler's Reports,  vols.  3-18  Maryland;— Miller's  Deci- 
sions,   United   States. 

Mill.  Civ.  L.    Miller's    Civil    Law. 

Mill,  Const.  (S.  C).  Mill's  South  Carolina  Con- 
stitutional   Reports. 

Mill.  Dec.  or  Mill.  Dec.  (U.  S.).  Miller's  Decisions 
(Woolworth's  Reports)  United  States  Circuit  Court ; 
—Miller's  Decisions  United  States  Supreme  Court 
Reports,  Condensed   (Continuation  of  Curties). 

Mill.  Ins.  Miller's  Elements  of  the  Law  of  Insur- 
ances. 

Mill.  La.    Miller's    Reports,    vols.    1-5    Louisiana. 

Mill,  Log.    Mill's   Logic. 

Mill.  Md.    Miller's   Reports,  vols.   3-18  Maryland. 

Mill.  Op.  Miller's  Decisions,  U.  S.  Circuit  Court 
(Woolworth's    Reports). 

Mill.  Part.     Miller    on    Partition. 

Mill,  Pol.  Ec.     Mill's  Political  Economy. 

Mill.  &  C.  Bills.  Miller  and  Collier  on  Bills  of 
Sale. 

Miller.  Miller's  Reports,  vols.  1-5  Louisiana; — 
Miller's  Reports,  vols.   3-18   Maryland. 

Mills  Em.  D.    Mills  on   Eminent  Domain. 

Milw.  or  Milio.  Eccl.  Milward's  Reports,  Irish  Pre- 
rogative, Ecclesiastical. 

Min.     Miuor  ; — Minor's  Alabama  Reports. 

Min.  Dig.    Mlnot's  Digest,  Massachusetts. 

Min.  Ev.    Minutes  of  Evidence. 

Min.  Inst.    Minor's   Institutes    Statute   Law. 

Minn.    Minnesota; — Minnesota   Reports. 

Minn.  Ct.  Rep.    Minnesota    Court    Reporter. 

Minn.  Law  J.  Minnesota  Law  Journal,  SL  Paul, 
Minn. 


Minor.  Minor's  Alabama  Reports;— Minor's  In- 
stitutes. 

hew.  Minshew  (John),  "The  Guide  Into  the 
Tongues  also  the  Exposition  of  the  Terms  of  the 
Laws  of  this  Land."     (England.) 

Mir.  Jus.    Home's    Mirror   of    Justices. 

Mir.  Pari.     Mirror  of  Parliament,  London. 

Mir.  Pat.  Off.  Mirror  of  the  Patent  Office,  Wash- 
ington, D.  C. 

li.D.dS.    Mirchall's   Doctor   and   Student 
r.     Home's  Mirror  of   Justices. 

Misc.  R.  or  Miscel.  Miscellaneous  Reports,  New 
York. 

Miss.  Mississippi;  —  Mississippi  Reports;  —  Mis- 
souri. 

Miss.  Dec.     Mississippi   Decisions,  Jackson. 

St.   Ca.  or  Miss.  St.  Cos.    Mississippi   State 
Cases. 

J/ i.sfcr.  Mister's  Reports,  vols.  17-32  Missouri 
Appeals. 

Mitch.  M.  R.  Mitchell's  Maritime  Register,  Lon- 
don. 

Mitf.  Eq.  PI.    Mitford    on   Equity   Pleading. 

Mitf.  &Ty.Eq.  PI.  Mitford  and  Tyler's  Practice 
and   Pleading  in  Equity. 

M'Mul.  Ch.  (S.  C).  M'Mullan's  South  Carolina 
Equity   Reports. 

M'Mul.  L.  (S.  C).  M'Mullan's  South  Carolina  Law 
Reports. 

Mo.  Missouri ;— Missouri  Reports;— Moore's  Eng- 
lish King's  Bench  Reports;— Moore's  English  Com- 
mon Pleas  Reports  ;— Moore's  English  Privy  Council 
Reports  ;— Modern  Reports,  English  ;— English  King's 
Bench,  etc.,  (see  Mod.);— Monthly ;— Moore's  Indian 
Appeal  Cases  ;— J.  B.  Moore's  Reports,  English  Com- 
mon Pleas. 

Mo.  App.    Missouri    Appeal    Reports. 

Mo.  App.  Rep.    Missouri   Appellate    Reporter. 

Mo.  Bar.    Missouri  Bar,  Jefferson  City. 

Mo.  (F.).  Sir  Francis  Moore's  English  King's 
Bench    Reports. 

Mo.  I.  A.    Moore's  Indian  Appeals. 

Mo.  (J.  B.).  J.  B.  Moore's  English  Common  Pleas 
Reports. 

Mo.  Jur.    Monthly   Jurist,    Bloomlngton,   111. 

Mo.  Laic  Mag.     Monthly     Law     Magazine,    London. 

Mo.  Law  Rep.    Monthly  Law   Reporter,   Boston. 

Mo.  Leg.  Exam.  Monthly  Legal  Examiner,  New 
York. 

Mo.P.C.    Moore's  English  Privy  Council  Reports. 

Mo.  W.J.  Monthly  Western  Jurist,  Bloomington. 
111. 

Mo.  &  P.  Moore  &  Payne's  English  Common  Pleas 
Reports. 

Mo.  &  R.  Moody  &  Robinson's  English  Nisi  Prius 
Reports. 

Mo.  &  S.  Moore  &  Scott's  English  Common  Pleas 
Reports. 

Moakdc  Eng.  Rep.    Moak's  English  Reports. 

Mob.  or  Mool.  Mobley,  Contested  Election  Cases, 
U.  S.  House  of  Representatives.  18S2-9. 

Mod.  Modem  Reports,  English  King's  Bench,  etc.; 
—Modified. 

Mod.  Cas.  L.  &  Eq.  Modern  Cases  in  Law  and 
Equity  (8  and  9  Modern  Reports  I. 

Mod.  Cas.     Modern  Cases  (6  Modern  Reports). 

Mod.  Cas.  per  Far.  or  t.  Ilolt.  Casea    tem- 

pore Holt,  by  Farresley,  vol.  7  Modern  Reports. 

ilfod.  Ent.     Modern   Entries. 

Mod.  Int.     Modus   Intraudi. 

Mod.  Rep.  The  Modern  Reports,  English  King's 
Bench,  etc.  ; — Modern  Reports  by  Style  (Style's 
King's   Bench    Reports). 

Mol.  or  Moll.     Molloy'a  Irish  Chancery  Reports. 

Moly.  Molyneauxs  Reports,  English  Courts,  temp. 
Car.   I. 

Mol.  de  J.  M.  or  AfoJ.  de  Jure  Mar.  Molloy  de  Jure 
Maritimo   et  Navall. 

Mon.  Montana ;— T.  B.  Monroe's  Kentucky  Re- 
ports; — Ben  Monroe's  Kentucky  Reports ;— Mona- 
ghan's  Unreported  Cases  Supreme  Court  of  Penn- 
sylvania. 

Mon.  Angl.     Monasticon  Angllcanum. 

Mori.  B.     Ben   Monroe's  Reports,   Kentucky. 

Mon.  (T.B.J.     T.   B.    Monroe's   Kentucky    Reports. 


ABBREVIATION 


60 


ABBREVIATION 


Monagh.  or  Monaghan.  Monaghan's  Unreported 
Cases,  S.  C.  of  Pennsylvania ;— Monaghan's  Reports, 
vols.  147-165  Pennsylvania. 

ilonr.  Monroe  (see  Mon.)  ;— T.  B.  Monroe's  Re- 
ports, Kentucky. 

Mont.  Montana  ;— Montana  Reports  ;— Montagu's 
English  Bankruptcy  Reports ;— Montriou's  Bengal 
Reports. 

Mont.  B.  C.  or  Mont.  Bank.  Rep.     Montagu's    Re- 
ports,  English  Bankruptcy. 
Mont.  Cas.    Montriou's  Cases  in  Hindoo  Law. 
Mont.  Co.  L.  R.     Montgomery  County  Law   Report- 
er, Pennsylvania. 

Mont.  Comp.     Montagu   on   the   Law    of   Composi- 
tion. 
Mont.  Cond.  Rep.    Montreal  Condensed  Reports. 
Mont.  D.  &  De  G.     Montagu,   Deacon   and  De  Gex's 
Reports,   English   Bankruptcy. 

Mont.  Dig.  or  Mont.  Eq.  PI.  Montagu's  Digest  of 
Pleadings  in  Equity. 

Mont.  Ind.  Monthly  Index  to  Reporters  (Nation- 
al Reporter  System). 

Mont.  Inst.  Montriou's  Institutes  of  Jurispru- 
dence. 

Mont.  L.  R.  Montreal  Law  Reports,  Queen's 
Bench  ;— Montreal  Law  Reports,  Superior  Court. 

Mont.  L.  R.  Q.  B.  Montreal  Law  Reports,  Queen's 
Bench. 

Mont.  L.  R.  S.  C.  or  Mont.  L.  Rep.  Super.  Ct.     Mon- 
treal Law  Reports,  Superior  Court. 
Mont.  Set-Off.     Montagu  on   Set-Off. 
Mont.  &  A.  or  Mont  &  Ayr.      Montagu    and    Ayrton'B 
Reports,   English  Bankruptcy. 

Mont.  &  B.  or  Mont.  &  Bl.  Montagu  and  Bligh'8 
Reports,   English  Bankruptcy. 

Mont.  &  C.  Montagu  and  Chitty's  Reports,  Eng- 
lish Bankruptcy. 

Mont.  &  MacA.  Montagu  &  MacArthur's  English 
Bankruptcy    Reports. 

Montesq.  or  Montesq.  Esprit  des  Lois.  Montesquieu, 
Esprit   des   Lois. 

Montg.  Co.  L.  Rep.  or  Montg.  Co.  Law  Rep'r  (Pa.). 
Montgomery  County  Law  Reporter. 

Month.  J.  L.  Monthly  Journal  of  Law,  Washing- 
ton. 

Montr.  Montriou's  Reports,  Bengal ;—  Montriou's 
Supplement  to  Morton's  Reports. 
Montr.  L.  R.  Montreal  Law  Reports. 
Moo.  Francis  Moore's  English  King's  Bench  Re- 
ports. When  a  volume  is  given,  it  refers  to  J.  B. 
Moore's  Reports,  English  Common  Pleas ;— J.  M. 
Moore's  English  Common  Pleas  Reports ;— Moody's 
English  Crown  Cases. 

Moo.  A.  Moore's  Reports,  English  (1st  Bosanquet 
and  Puller's  Reports,  after  page  470). 

Moo.  C.  C.  or  Moo.  C.  Cas.  or  Moo.  Cr.  C.  Moody's 
English  Crown  Cases  Reserved. 

Moo.  C.  P.  J.  B.  Moore's  Reports,  English  Com- 
mon Pleas. 

Moo.  I.  App.  or  Moo.  Ind.  App.  Moore's  Reports, 
English  Privy  Council,  Indian  Appeals. 

Moo.  J.  B.  J.  B.  Moore's  Reports,  English  Com- 
mon Pleas. 

Moo.  K.  B.  Moore's  English  King's  Bench  Re- 
ports. 

Moo.  P.  C.  or  Moo.  P.  C.  Cas.  Moore's  Privy  Council 
Cases,  Old  and  New  Series. 

Moo.  P.  C.  Cas.  N.  S.    Moore's  Privy  Council  Cases, 
New  Series,  English, 
ilfoo.  Tr.    Moore's  Divorce  Trials. 
Moo.  &  M.  or  Moo.  &  Mai.     Moody  &  Malkin's  Eng- 
lish Nisi   Prius  Reports. 

Moo.  &  P.  or  Moo.  &  Pay.  Moore  and  Payne's  Re- 
ports, English  Common  Pleas. 

ilfoo.  &  R.  or  Moo.  &  Rob.  Moody  and  Robinson's 
Nisi  Prius  Cases,  English  Courts. 

ilfoo.  &  Sc.  Moore  and  Scott's  Reports,  English 
Common  Pleas. 

Mood,  or  Moody.  Moody's  English  Crown  Cases, 
Reserved. 

Mood.  &  Malk.  Moody  &  Malkin's  English  Nisi 
Prius   Reports. 

Mood.  &  R.  or  Mood.  &  Rob.  Moody  &  Robinson's 
English  Nisi  Prius  Reports. 


Moody,  Cr.  Cas.     Moody's  English  Crown  Cases. 
Moody  £  M.    Moody  &  Mackin's  English  Nisi  Prius 
Reports. 

Moon.  Moon's  Reports,  vols.  133-144  Indiana  and 
vols.  6-14    Indiana  Appeals. 

Moore.  Moore's  English  King's  Bench  Reports  ;— 
Moore's  English  Common  Pleas  Reports ;— Moore's 
English  Privy  Council  Reports ;— Moore's  Reports, 
vols.  28-34  Arkansas  ;— Moore's  Reports,  vol.  67  Ala- 
bama ;— Moore's  Reports,  vols.  22-24  Texas. 

Moore  (A.).     A.   Moore's   Reports   in   1   Bosanquet 
&  Puller,   after  page  470. 
Moore  (Ark.).     Moore's  Reports,  Arkansas. 
Moore  C.  P.     Moore's  English   Common   Pleas   Re- 
ports. 
Moore  E.  I.    Moore's  East  Indian  Appeals, 
ilfoore  O.  C.    Moore's  Gorham  Case  (English  Privy 
Council). 

Moore  K.  B.  Sir  F.  Moore's  English  King's  Bench 
Reports. 

Moore  P.  C.  Moore's  English  Privy  Council  Re- 
ports. 

Moore  P.  C.  N.  S.  Moore's  English  Privy  Council 
Reports,  New  Series. 

Moore  &  P.  Moore  &  Payne's  English  Common 
Pleas  Reports. 

Moore  &  S.  Moore  &  Scott's  English  Common 
Pleas  Reports. 

Moore  &  W.  or  Moore  &  Walker.  Moore  and  Walk- 
er's Reports,  Texas,  vols.  22-24. 

Mor.  Morison's  Dictionary  of  Decisions  In  the 
Court  of  Session,  Scotland  ;— Morris  (see  Morr.). 

Mor.  Die.  or  ilfor.  Diet.  Dec.      Morison's    Dictionary 
of  Decisions,   Scotch  Court  of  Session. 
Mor.  Dig.     Morley's  Digest  of  the  Indian  Reports. 
Mor.  la.    Morris'  Iowa  Reports. 
Mor.  Min.  Rep.     Morrison's  Mining  Reports. 
Mor.  Priv.  Corp.     Morawetz    on    Private    Corpora- 
tions, 
ilfor.  St.  Cas.    Morris'  Mississippi  State  Cases. 
Mor.  Supp.     Supplement   to   Morison's   Dictionary, 
Scotch  Court  of   Session. 

Mor.  Syn.  Morison's  Synopsis,  Scotch  Session 
Cases. 

ilfor.  Tran.  Morrison's  Transcript  of  United  States 
Supreme  Court  Decisions. 

More  St.  More's  Notes  on  Stair's  Institutes,  Scot- 
land. 

M org.  Ch.  A.  &  O.  Morgan's  Chancery  Acts  and 
Orders. 

Morg.  &  W.  L.  J.     Morgan     and     Williams's     Law 
Journal,   London. 
ilforZ.  Dig.    Morley's  East  Indian  Digest. 
Jforr.     Morris's    Iowa   Reports    (see,    also,   Morris 
and  Mor.)  ;— Morrow's  Reports,  vols.  23-36  Oregon  ;— 
Morrell's  English  Bankruptcy  Reports, 
ilforr.  (Bomb.).     Morris's   Reports,   Bombay, 
ilforr.  (Cal.).     Morris's  Reports,   California. 
Morr.  Jam.  (Jamaica).    Morris's  Jamaica  Reports, 
ilforr.  ilf.  R.     Morrison's  Mining  Reports,   Chicago. 
Morr.  (Miss.).     Morris's  Reports,   Mississippi, 
ilforr.  Repl.     Morris  on  Replevin, 
ilforr.  St.  Cas.    Morris's  State  Cases,  Mississippi. 
Morr.  Trans.    Morrison's  Transcript,  United  States 
Supreme  Court  Decisions. 
Morrell.    Morrell's  Bankruptcy  Cases. 
Morris.      Morris's     Iowa    Reports ;— Morris's    Re- 
ports, vol.  5  California ;— Morris's  Reports,  vols.  43- 
48    Mississippi ;— Morris's    Jamaica    Reports  ;— Mor- 
ris's   Bombay    Reports;— Morr issett's    Reports,   vols. 
80,  98  Alabama. 

Morris  &  Har.  Morris  and  Harrington's  Sudder 
Dewanny  Adawlut  Reports,  Bombay. 

Morse  Arb.  &  Aw.      Morse    on     Arbitration     and 
Award. 
Morse  Bk.    Morse  on  Banks  and  Banking, 
.flforse  Exch.  Rep.      Morse's     Exchequer    Reports, 
Canada. 
Morse  Tr.     Morse's  Famous  Trials,  Boston. 
Mort.  or  Morton.     Morton's   Reports,   Bengal. 
Mos.     Mosley's   Reports,    English   Chancery. 
Mos.  Man.     Moses  on  Mandamus. 
Moult.  Ch.  or  Moult.  Ch.  P.  (N.  Y.).    Moulton's  New 
York   Chancery   Practice. 


ABBREVIATION 


61 


ABBREVIATION 


Moy.  Ent.     Moyle's  Book  of  Entries. 

Moz.  <Sc  W.  or  Mozley  &  Whitcley.  Mozley  &  White- 
ley's  Law  Dictionary. 

MS.     Manuscript,   Manuscript  Reports. 

Mu.  Corp.  Cu.     Withrow's  Corporation  Cases,  vol.  2. 

Mulford,Nt      <   .     Mulford,  The  Nation. 

Mum.  Jam.     .Mumford's  Jamaica  Reports. 

Mumf.  (Jamaica).    Mumford's  Jamaica  Reports. 

Mxin.     Municipal  ;— Munford's  Virginia  Reports. 

Munf.     Munford's  Reports,  Virginia. 

Munic.  &  P.  L.  Municipal  and  Parish  Law  Cases, 
English. 

Murphey's  North  Carolina  Reports; — Mur- 
ray's Scotch  Jury  Court  Reports  ;— Murray's  Ceylon 
Reports  ;— Murray's  New   South  Wales  Reports. 

Mur.  U.  S.  Ct.  Murray's  Proceedings  in  the  United 
States  Courts. 

Mur.  <(•  //.  or  Mur.  £  Hurl.  Murphy  and  Hurl- 
stone's   Reports,   English   Exchequer. 

Murph.     Murphy's  Reports,  North  Carolina. 

Murr.  Murray's  Scotch  Jury  Trials ;— Murray's 
Ceylon  Reports ;— Murray'?  New  South  Wales  Re- 
ports. 

Murr.  Over.  Cas.     Murray's  Overruled  Cases. 

Murray.     Murray's   Scotch  Jury   Court  Reports. 

Murray  (Ceylon).     Murray's  Ceylon  Reports. 

Murray  (New  South  Wales).  Murray's  New  South 
Wales  Reports. 

Mut.  or  Mutukisna  (Ceylon).  Mutukisna's  Ceylon 
Reports. 

Myer  Dig.    Myer's  Texas  Digest. 

Myer  Fed.  Dec.  or  Myers  Fed.  Dec.  Myer's  Fed- 
eral  Decisions. 

Mid.  &  C.  or  Myl.  &  Cr.  Mylne  &  Craig's  English 
Chancery  Reports. 

Myl.  &  K.  or  Mylne  &  K.  Mylne  &  Keen's  English 
Chancery    Reports. 

or   Myr.    Prob.   or  Myrick    (Cal.).    Myrick's 
California  Probate  Court  Reports. 

N.  Nebraska  ;— fNevada  ;— 'Northeastern  Reporter 
(properly  cited  N.  E.); — Northwestern  Reporter 
(properly  cited  N.  W.)  ; — The  Novels  or  New  Con- 
stitutions. 

N.  A.    Non  allocatur. 

N.  B.    New   Brunswick    Reports  ; — Nulla   bona. 

N.  B.  Eg.  Ca.    New   Brunswick  Equity  Cases. 

N.  B.  Eq.  Rep.    New     Brunswick     Equity     Reports. 

N.  B.  N.  R.  National  Bankruptcy  News  and  Re- 
ports. 

N.  B.  R.  National  Bankruptcy  Register,  New 
York; — New  Brunswick   Reports. 

N.  B.  Rep.    New  Brunswick   Reports. 

N.  B.  V.  Ad.  New  Brunswick  Vice  Admiralty  Re- 
ports. 

N.  Benl.  New  Benloe's  Reports,  English  King's 
Bench,  Edition  of  1661. 

N.  C.  North  Carolina ;—  North  Carolina  Reports; 
— Notes  of  Cases  (English,  Ecclesiastical,  and  Mari- 
time);—New  Cases  (Bingham's  New  Cases). 

N.  C.  C.    New  Chancery  Cases  (Younge  &  Collyer). 

N.  C.  Conf.    North  Carolina  Conference  Reports. 

N.  C.  Ecc.  Notes  of  Cases,  English  Ecclesiastical 
and  Maritime  Courts. 

N.  C.  L.  Rep.    North  Carolina   Law  Repository. 

N.  C.  Law  Repos.  North  Carolina  Law  Reposi- 
tory. 

N.  C.  Str.    Notes  of  Cases,  by  Strange,  Madras. 

N.  C.  T.  Rep.  or  N.  C.  Term  R.  North  Carolina 
Term   Reports. 

N.  Car.    North  Carolina  ;— North  Carolina  Reports. 

N.  chip,  or  N.  Chip.  (Vt.).  N.  Chipman's  Vermont 
Reports. 

N.  D.    North    Dakota ;— North    Dakota    Reports. 

N.  E.  New  England;— New  edition;— Northeastern 
Reporter. 

N.  E.  I.    Non   est   inventus. 

N.  E.  R.  Northeastern  Reporter  (commonly  cited 
N.    E.)  ; — New   England   Reporter. 

N.  E.  Rep.    Northeastern   Reporter. 

N.  Eng.  Rep.    New   England  Reporter. 

N.  F.    Newfoundland;— Newfoundland    Reports. 

N.  II.    New  Hampshire  ; — New  Hampshire  Reports. 

N.  H.  R.    New   Hampshire   Reports. 

N.  H.  <£  C.  English  Railway  and  Canal  Cases,  by 
Nicholl,  Hare,  Carrow,  etc. 


N.J.    New  Jersey  ;— New  Jersey  Reports. 

N.J.Ch.orN.J.Eq.    New   Jersej  Reports. 

N.  J.  L.  J.    New    Jersey    Law   Journal,    So:u.  rville 
N.  J. 

N.  J.  Law.    New   Jersey   Law   Reports. 

N.  L.    Nelson's  Lutwyche,  English  Common 
Reports. 

N.  L.  L.    New    Library   of  Law   and    Equity, 
lish;— New    Library    of    Law,    etc.,    Harrisbu:, 

N.  M.    New    Mexico; — New   Mexico    Reports. 

N.  M.  St.  Bar  Ass'n.  New  Mexico  State  Bar  As- 
sociation. 

N.  Mag.  Ca.    New  Magistrates'  Cases. 

N.  Mex.    New    Mexico    Territorial    Courts. 

N.  of  Cas.  Notes  of  Cases,  English  Ecclesiastical 
and  Maritime  Courts ;— Notes  of  Cases  at  Madras 
(by     Strange). 

N.  of  Cas.  Madras.  Notes  of  Cases  at  Madras  (by 
Strange). 

N.  P.  Nisi  Prlus.  Notary  Public.  Nova  Placlta. 
New   Practice. 

N.  P.  C.    Nisi   Prlus   Cases. 

N.  P.  R.    Nisi    Prius    Reports. 

N.R.  New  Reports  (English,  1862-18G5);— Bosan- 
quet  &  Puller's  New  Reports;— Not  Reported. 

N.  R.  B.  P.    New    Reports   of   Bosanquet   &   Puller. 

N.  S.  New  Series ;— Nova  Scotia;— Nova  Scotia 
Reports. 

N.  S.  Dec.    Nova   Scotia  Decisions. 

N.  S.  L.  R.    Nova   Scotia   Law   Reports. 

N.  S.  R.    Nova   Scotia  Reports. 

N.  S.  W.  New  South  Wales  Reports,  Old  and  New- 
Series. 

N.  S.  W.  Eq.  Rep.  New  South  Wales  Equity  Re- 
ports. 

N.  S.  W.  L.  R.    New   South  Wales  Law  Reports. 

N.  Sc.  Dec.    Nova    Scotia    Decisions. 

N.  T.  Repts.    New   Term   Reports,   Q.   B. 

N.  W.  Law  Rev.  Northwestern  Law  Review,  Chi- 
cago,  111. 

N.  W.  P.    North    West    Provinces    Reports,    India. 

N.  W.  R.  or  N.  W.  Rep.  or  N.  W.  Reptr.  Northwest- 
ern  Reporter. 

N.  W.  T.  or  N.  W.  T.  Rep.  Northwest  Territories 
Reports,  Canada. 

N.  Y.  New  York;— New  York  Court  of  Appeals 
Reports. 

N.  Y.  Ann.  Ca.    New    York   Annotated   Cases. 

N.  Y.  App.  Dec.  New  York  Court  of  Appeals  De- 
cisions. 

N.  Y.  Cas.  Err.  New  York  Cases  in  Error  (Calnes's 
Cases). 

N.  Y.  Ch.  Sent.    New   York  Chancery   Sentinel. 

N.  Y.  City  H.  Rec.    New   York  City  Hall   Recorder. 

N.  Y.  Civ.  Pr.  Rep.  New  York  Civil  Procedure  Re- 
ports. 

N.  Y.  Code  Report,  or  N.  Y.  Code  Rept.  New  York 
Code    Reporter. 

N.  Y.  Code  Reports,  N.  S.  or  N.  Y.  Code  Repts.  -V. 
S.    New  York  Code  Reports,  New  Series. 

N.  Y.  Cond.    New  York   Condensed    Reports. 

N.  Y.  Cr.    New    York    Criminal   Reports. 

N.Y.Cr.  R.  or  N.Y.Cr.  Rep.  New  York  Criminal 
Reports. 

N.  Y.  Ct.  App.    New  York  Court  of  Appeals. 

N.  Y.  Daily  L.  Gaz.    New  York  Dally  Law  Gazette. 

N.  Y.  El.  Cas.  or  N.  Y.  Elec.  Cas.  New  York  Con- 
tested  Election    Cases. 

N.  Y.  Jud.  Rep.  New  York  Judicial  Repository, 
New  York   (Bacon's). 

N.  Y.  Jur.    New  York  Jurist 

N.  Y.  L.  J.  New  York  Law  Journal,  New  York 
City. 

N.  Y.  Law  Gaz.  New  York  Law  Gazette,  New 
York   City. 

N.  Y.  Law  Rev.  New  York  Law  Review,  Ithaca, 
N.  Y. 

N.  Y.  Leg.  N.     New  York  Legal  News, 

N.  Y.  Leg.  Obs.  New  York  Legal  Observer,  New 
York  City   (Owen's). 

N.  Y.  Leg.  Reg.  New  York  Legal  Register,  New 
York  City. 

N.T.Miac.    New   York  Miscellaneous  Reports. 

N.Y.Mo.L.R.     New   York   Monthly    Law    Reports. 

N.  Y.  Mo.  Law  Bull.  New  York  Monthly  Law  Bul- 
letin,  New    York   City. 


ABBREVIATION 


613 


ABBREVIATION 


IT.  Y.  Mun.  Gaz.  New  York  Municipal  Gazette, 
New  York  City. 

N.  Y.  Op.  Att.-Gen.  Sickels's  Opinions  of  the  At- 
torney-General  of  New    York. 

N.  Y.  P.  R.    New  York   Practice  Reports. 

N.  Y.  Pr.  Rep.    New    York    Practice    Reports. 

N.  Y.  Rec.    New   York   Record. 

N.  Y.  Reg.  New  York  Daily  Register,  New  York 
City. 

N.  Y.  Rep.    New    York    Court  of  Appeals   Reports. 

N.  Y.  Reptr.    New    York    Reporter    (Gardenier's). 

N.  Y.  S.  New  York  Supplement ;— New  York  State; 
—New   York    State    Reporter. 

N.  Y.  Spec.  Term  R.    Howard's     Practice     Reports. 

N.  Y.  St.  Rep.    New  York  State  Reporter,  1886-1896. 

N.Y.Sup.  New  York  Supreme  Court  Reports;— 
New  York  Supplement,  St.  Paul,  Minnesota. 

N.  Y.  Sup.  Ct.  or  N.  Y.  Super.  Ct.  New  York  Supe- 
rior Court  Reports. 

N.  Y.  Supp.    New  York   Supplement. 

N.  Y.  Supr.  or  N.  Y.  Supr.  Ct.  Repts.  New  York  Su- 
preme   Court   Reports. 

N.  Y.  Supr.  Ct.  Repts.  (T.  &  C).  New  York  Su- 
preme Court  Reports,  by  Thompson  and  Cook. 

N.  Y.  T.  R.  or  N.  Y.  Term  R.  New  York  Term  Re- 
ports (Caines's  Reports). 

N.  Y.  Them.    New   York   Themis,    New   York    City. 

N.  Y.  Trans.  New  York  Transcript,  New  York 
City. 

N.  Y.  Trans.  N.  S.  New  York  Transcript,  New  Se- 
ries,  New  York  City. 

N.  Y.  Week.  Dig.  New  York  Weekly  Digest,  New 
York  City. 

N.Z.    New  Zealand;— New  Zealand   Reports. 

N.  Z.  App.  Rep.    New    Zealand    Appeal    Reports. 

N.  Z.  Col.  L.  J.  New  Zealand  Colonial  Law  Jour- 
nal. 

N.  Z.  Jur.    New   Zealand    Jurist,    Dunedin,    N.    Z. 

N.  Z.  Jur.  N.  S.    New  Zealand  Jurist,    New   Series. 

N.  Z.  Rep.  New  Zealand  Reports,  Court  of  Ap- 
peals. 

N.  &  H.  Nott  and  Huntington's  Reports,  U.  S. 
Court  of  Claims  Reports,  vols.  1-7. 

N.  &  Hop.  Nott  and  Hopkins's  Reports,  U.  S. 
Court  of   Claims    Reports,   vols.    8-29. 

N.  &  M.  Neville  and  Manning's  Reports,  English 
King's    Bench. 

N.  d  M.  Mag.  Nevlle  &  Manning's  English  Mag- 
istrates' Cases. 

N.  &  Mc.  or  N.  &  McC.  Nott  &  McCord's  South  Car- 
olina Reports. 

N.  &  P.  Nevile  &  Perry's  English  King's  Bench 
Reports. 

N.  &  P.  Mag.  Nevile  &  Perry's  English  Magis- 
trates'   Cases. 

Nal.  St.  P.    Nalton's  Collection  of  State  Papers. 

Nam.  Dr.  Com.  Namur's  Cour  de  Droit  Commer- 
cial. 

Nap.     Napier. 

Napt.  or  Napton.  Napton's  Reports,  vol.  4  Mis- 
souri. 

Narr.  Mod.  Narrationes  Moderns,  or  Style's 
King's  Bench  Reports. 

Nas.  Inst.     Nasmith's    Institutes   of   English    Law. 

Nat.  B.  C.  or  Nat.  Bk.  Cos.  National  Bank  Cases, 
American. 

Nat.  B.  R.  or  Nat.  Bank.  Reg.  National  Bankruptcy 
Register  Reports. 

Nat.  Brev.    Natura  Brevium. 

Nat.  Corp.  Rep.  National  Corporation  Reporter, 
Chicago. 

Nat.  L.  Rec.     National   Law   Record. 

Nat.  L.  Rep.     National  Law  Reporter. 

Nat.  L.  Rev.     National   Law  Review,  Philadelphia. 

Nat.  Reg.    National  Register,  Edited  by  Mead,  1816. 

Nat.  Rept.  Syst.     National   Reporter  System. 

Nat.  Rev.     National   Review,  London. 

Nd.     Newfoundland  Reports. 

Weal  F.  &  F.     Neal's  Feasts  and  Fasts. 

Neb.     Nebraska  ; — Nebraska  Reports. 

Neg.  Cas.  Bloomfield's  Manumission  or  Negro 
Cases,  New  Jersey. 

Nel.    Nelson's  English  Chancery  Reports. 

Nell  (Ceylon).     Nell's  Ceylon  Reports. 

Nets.    Nelson's  Reports,  English  Chancery. 


Nels.  Abr.  Nelson's  Abridgment  of  the  Common 
Law. 

Nels.  Fol.  Rep.  Reports  temp.  Finch,  Edited  by 
Nelson. 

Nels.  Lex  Maner.     Nelson's   Lex   Maneriorum. 

Nels.  Rights  Cler.     Nelson's   Rights  of  the   Clergy. 

Nem.  con.     Nemine  contradicente. 

Nem.  dis.     Nemine  dissentiente. 

Nev.    Nevada  ; — Nevada  Reports. 

Nev.  &  M.  or  Nev.  &  Man.  Nevile  &  Manning's 
English  King's  Bench   Reports. 

Nev.  &  M.  M.  Cas.  Neville  and  Manning's  Magis- 
trate Cases,  English. 

Nev.  &M.R.&  C.  Cas.  Neville  and  McNamara's 
Railway  and  Canal   Cases. 

Nev.  &  Mac.  or  Nev.  &  Macn.  Neville  &  Macnam- 
ara's  English  Railway  and  Canal  Cases. 

Nev.  &  Man.  Mag.  Cas.  Nevile  &  Manning's  Eng- 
lish Magistrate's  Cases. 

Nev.  &  P.  Nevile  &  Perry's  English  King's  Bench 
Reports. 

Nev.  &  P.  M.  Cas.  or  Nev.  &  P.  Mag.  Cas.  Neville 
and  Perry's  Magistrate  Cases,  English. 

New.    Newell,  Illinois  Appeal  Reports. 

New  Ann.  Reg.     New  Annual  Register,   London. 

New  B.  Eq.  Ca.     New  Brunswick  Equity  Cases. 

New  B.  Eq.  Rep.  New  Brunswick  Equity  Reports, 
vol.  1. 

New  Benl.  New  Benloe's  Reports,  English  King's 
Bench,  Edition  of  1661. 

New  Br.     New  Brunswick   Reports. 

New  Cas.    New  Cases  (Bingham's  New  Cases). 

New  Cas.  Eq.  New  Cases  in  Equity,  vol3.  8,  • 
Modern  Reports. 

New  Eng.  Hist.  New  England  Historical  and 
Genealogical   Register. 

New  M.  Cas.  or  New  Mag.  Cas.  New  Magistrate 
Cases,  English  Courts   (Bittleston,  Wise  &  Parnell). 

New  Nat.  Brev.     New  Natura  Brevium. 

New  Pr.  Cas.  or  New  Pr.  Cases.  New  Practice  Cas- 
es, English  Courts. 

New  Rep.  New  Reports  In  all  the  Courts,  London  ; 
— Bosanquet  &  Puller's  New  Reports,  vols.  4,  5  Bo- 
sanquet  &   Puller. 

New  Sess.  Cas.  Carrow,  Hamerton  and  Allen's 
Reports,  English  Courts. 

New  So.  W.     New   South  Wales. 

New  Term  Rep.  New  Term  Reports  ; — Dowling  A 
Ryland's   King's  Bench  Reports. 

New  York.    See  N.  Y. 

New  York  Supp.    New  York  Supplement. 

Newb.  or  Newb.  Adm.  Newberry's  United  States 
District  Court,  Admiralty  Reports. 

Newbyth.  Newbyth's  Manuscript  Decisions,  Scotch 
Session  Cases. 

Newell.  Newell's  Reports,  vols.  48-90  Illinois  Ap- 
peals. 

Newf.     Newfoundland  Reports. 

New}.  Sel.  Cas.     Newfoundland  Select  Cases. 

Newl.  Contr.     Newland  on   Contracts. 

Newm.  Conv.    Newman  on  Conveyancing. 

Nich.  Adult.  Bast.  Nicholas  on  Adulterine  Bas- 
tardy. 

Nich.  H.  &  C.  or  Nicholl.  Nicholl,  Hare  and  Car- 
row's  English   Railway   and  Canal   Cases,   vols.   1-2. 

Nicholson.  Nicholson's  Manuscript  Decisions, 
Scotch  Session  Cases. 

Niebh.  Hist.  Rom.    Niebuhr,  Roman  History. 

Nient  Cul.     Nient  culpable.  Not  guilty. 

Nil.  Reg.  or  Niles  Reg.  Niles's  Weekly  Register, 
Baltimore. 

Nisbet.  (Nisbet  of)  Dirleton's  Scotch  Sessio» 
Cases. 

Nix.  F.     Nixon's  Forms. 

No.  Ca.  Ecc.  &  Mar.  or  No.  Cas.  Ecc.  &  M.  Notes 
of  Cases  in  the  English  Ecclesiastical  and  Maritime 
Courts. 

No.  East.  Rep.  Northeastern  Reporter  (commonly 
cited  N.  E.). 

No.  N.    Nova  Narrationes. 

No.  West.  Rep.  Northwestern  Reporter  (commonly 
cited  N.  W.). 

Nol.  M.  Cas.  or  Nol.  Mag.  or  Nol.  Just,  or  NoL 
Sett.  Cas.     Nolan's  English  Magistrates'  Cases. 

Nol.  Sett.     Nolan's   Settlement   Cases. 


ABBREVIATION 


63 


ABBREVIATION 


Non.  Cul.     Non  culpabllls.  Not  guilty. 
Nor.  Fr.     Norman   French. 

Nor.  L.  C.  lnh.  Norton's  Leading  Cases  on  Inher- 
itance,  India. 

Norc.     Norcross's  Reports,  vols.  23-24  Nevada. 

Norr.     Norris's    Reports,    vols.   82-96    Pennsylvania. 

Norr.  Peake.    Norris's  Peake's  Law  of  Evidence. 

North.  Northington's  Reports,  English  Chancery, 
Eden's   Reports. 

North.  Co.  Rep.  Northampton  County  Reporter, 
Pennsylvania. 

North  W.  L.J.     Northwestern    Law   Journal. 

North  £  Q.  North  &  Guthrie's  Reports,  vols.  68-80 
Missouri  Appeals. 

Northam.  Northampton  Law  Reporter,  Pennsyl- 
vania. 

Northum.  Northumberland  County  Legal  News, 
Pennsylvania. 

Northw.  Pr.     Northwest  Provinces,  India. 

Northw.  Rep.  or  Noithwcst.  Rep.  Northwestern  Re- 
porter   (commonly  cited   N.  W.). 

Not.  Cas.  Notes  of  Cases  In  the  English  Ecclesi- 
astical and  Maritime  Courts ; — Notes  of  Cases  at 
Madras   (Strange). 

Not.  Cas.  Etc.  £  M.  Notes  of  Cases  in  the  English 
Ecclesiastical   and   Maritime  Courts. 

Not.  Cas.  Madras.  Notes  of  Cases  at  Madras 
(Strauge). 

Not.  Dec.  Notes  of  Decisions  (Martin's  North 
Carolina  Reports). 

Not.  J.     Notaries  Journal. 

Not.  Op.  Wilmot's  Notes  of  Opinions  and  Judg- 
ments. 

Notes  of  Ca.     Notes  of   Cases,  English. 

Notes  on  U.  S.     Notes  on  United  States  Reports. 

Nott  Mech.  L.  L.  Nott  on  the  Mechanics'  Lien 
Law. 

Nott  £  H.  Nott  and  Huntington's  Reports,  U.  S. 
Court  of  Claims   Reports,  vols.  1-17. 

Nott  £  Hop.  Nott  &  Hopkins's  United  States  Court 
of  Claims  Reports,  vols.  8-29. 

Nott  £  Hunt.  Nott  &  Huntington's  Reports,  vols. 
1-7  United   States   Court  of  Claims. 

Nott  £  McC.  Nott  &  McCord's  South  Carolina  Re- 
ports. 

Nott  £  McC.  Nott  and  McCord's  Reports,  South 
Carolina. 

Nouv.  Den.  Denizart  Collection  de  Decisions 
Nouvelles. 

Nouv.  Rev.  Nouvelle  Revue  de  Droit  Francals, 
Paris. 

Nov.    Novelise.    The  Novels,  or  New  Constitutions. 

Nov.  Rec.  Novisiml  Recopilacion  de  las  Leyes  do 
Espana. 

Nov.  Sc.     Nova   Scotia  Supreme  Court  Reports. 

Nov.  Sc.  Dec.    Nova  Scotia  Decisions. 

Nov.  Sc.  L.  R.  or  Nova  Scotia  L.  Rep.  Nova  Scotia 
Law   Reports. 

Noy.     Noy's  English  King's  Bench  Reports. 

Noy  Max.     Noy's  Maxims. 

Noyes  Char  U.    Noyes  on  Charitable  Uses. 

Nye.     Nye's   Reports,   vols.  18-21  Utah. 

O.  Ohio  Reports;— Ontario; — Ontario  Reports; — 
Oregon  Reports ;— Otto's  United  States  Supreme 
Court  Reports  ;— Ordon nance  ; — Ohio  Reports.  Otto's 
Reports,  U.   S.   Supreme  Court   Reports,  vols.  81-107. 

0.  B.  Old  Bailey;— Old  Benloe;— Orlando  Brldg- 
man;— Session   Papers   of  the  Old   Bailey. 

O.  B.  S.    Old    Bailey's   Sessions  Papers. 

O.  B.  £  F.  N.  Z.  Olllvler,  Bell  &  Fitzgerald's  New 
Zealand  Reports. 

O.  Ben.  or  O.  Benl.  Old  Benloe's  Reports,  English 
Common  Pleas  (Benloe,  of  Benloe  and  Dahson, 
Edition  of  1689). 

O.  Bridg.  Orlando  Brldgman's  English  Common 
Pleas  Reports;— Carter's  Reports,  tempore  Brldg- 
man's   English    Common    Pleas. 

O'Brien  M.  L.    O'Brien's    Military    Law. 

O.  C.  Orphans*  Court ;— Old  Code  (Louisiana  Civ- 
il Code  of  1808). 

O.  C.  C.    Ohio  Circuit  Court  Reports. 

O.  C.  C.  N.  S.  Ohio  Circuit  Court  Reports,  New 
Series. 

O.  C.  D.    Ohio  Circuit  Decisions. 

O.  D.    Ohio  Decisions. 


O.D.C.C.  Ohio  Decisions,  Circuit  Court  (prop- 
erly  cited   Ohio   Circuit   Decisions). 

O.  O.  Official  Gazette,  U.  S.  Patent  Office.  Wash- 
ington, D.   C. 

0.  J.  Act.    Ontario    Judicature   Act 

O'Mal.  £H.    O'Malley    and    Hardcastle's    K 
Cases. 

O.N.B.    Old  Natura  Brevlum. 

ilNeg.L.    O'Neal's     Negro     Law     of     South 
Carolina. 

O.  R.    Ontario    Reports. 

O.  S.  Ohio  State  Reports  ;— Old  Series  ;— Old  Se- 
ries King's  &  Queen's  Bench  Reports,  Ontario,  (Up- 
per   Canada). 

O.  8.  C.  D.  or  O.  8.  U.  Ohio  Supreme  Court  Deci- 
sions, Unreported  Cases. 

O.  St.    Ohio   State   Reports. 

O.  S.  £  C.  P.  Dec.  Ohio  Superior  and  Common 
Pleas  Decisions. 

0.  d  T.    Oyer  and  Terminer. 

O'Brien.    O'Brien's    Upper    Canada    Reports. 

O'Callaghan,  New  Neth.  O'Callaghan's  History  of 
New   Netherland. 

Oct.  Str.  Octavo  Strange,  Select  Cases  on  Evi- 
dence. 

Odcneal.    Odeneal's    Reports,    vols.    9-11    Oregon. 

Off.  Br.    Offlclna  Brevium. 

Off.  Ex.  or  Off.  Exec.  Wentworth's  Office  of  Execu- 
tors. 

Off.  Gaz.  Pat.  Off.  Official  Gazette,  U.  S.  Patent 
Office,   Washington,    D.    C. 

Off.  Min.    Officer's   Reports,   Minnesota. 

Offtrcr.    Officer's    Reports,    vols.    1-9    Minnesota. 

Ogd.  or  Ogden.  Ogden's  Reports,  vols.  12-15  Lou- 
isiana. 

Ohio.    Ohio; — Ohio    Reports. 

O/u'o  C.  C.    Ohio    Circuit   Court  Reports. 

Ohio  L.  J.    Ohio  Law  Journal. 

Ohio  Leg.  N.    Ohio    Legal    News,   Norwalk,    Ohio. 

Ohio  N.  P.    Ohio   Nisi    Prius   Reports. 

O/iio  Prob.    Ohio   Probate   Court   Reports. 

Ohio  R.  Cond.    Ohio  Reports,  Condensed. 

Ohio  St.    Ohio  State  Reports. 

Ohio  Sup.  £  C.  P.  Dec.  Ohio  Superior  and  Com- 
mon  Pleas  Decisions. 

O'Keefe  Ord.  O'Keefe's  Orders  in  Chancery,  Ire- 
land. 

Oke  Mag.  Syn.    Oke's    Magisterial    Synopsis. 

Okla.    Oklahoma  Territorial   Reports. 

01.  Con.    Oliver's  Conveyancing. 
01.  Prec.    Oliver's  Precedents. 

Olc.  or  Olc.  Adm.  Olcott's  Admiralty  Reports,  U. 
S.   So.  Dlst.  of  N.  Y. 

Old  Ben.  Benloe  In  Benloe  £  Dallson,  English 
Common    Pleas  Reports. 

Old  Nat.  Brev.    Old   Natura   Brevium. 

Oliph.    Oliphant  on    Law  of  Horses. 

Oldr.    Oldright's   Reports,   Nova  Scotia. 

Oliv.  B.  £  L.  Oliver,  Beavan  and  Lefroy's  Reports, 
English  Railway  and  Canal  Cases,  vols.   5-7. 

Oil.  B.  £  F.  or  Oil.  B.  £  Fitz.  (New  Zealand).  Olll- 
vler, Bell  and  Fitzgerald's  New  Zealand  Reports. 

Oil.  Bell  £  Fitz.  Sup.  Olllvler,  Bell  and  Fitzger- 
ald   (Supreme   Ct.    N.   Z.). 

O'Mal.  £  H.  O'Malley  &  Hardcastle's  English 
Election  Cases. 

Onsl.  N.  P.    Onslow's   Nisi    Prius. 

Ont.    Ontario;— Ontario    Reports. 

Ont.  App.  R.  or  Ont.  App.  Rep.  Ontario  Appeal  Re- 
ports, Canada. 

Ont.  El.  Ca.    Ontario  Election   Cases. 

Ont.  P.  R.  or  Ont.  Pr.  or  Ont.  Pr.  Rep.  Ontario 
Practice    Reports. 

Op.  Att.  Gen.  Opinions  of  the  Attorneys  General 
of  the  United  States. 

Op.  Att. -Gen.  N.  Y.  Opinions  of  the  Attorney-Gen- 
erals, New  York   (Slckels's  Compilation). 

Op.  Att.-Qen.  (O.  S.).  Opinions  of  the  Attorney- 
Generals,    United    States. 

Op.N.Y.  Atty.  Gen.  Slckels's  Opinions  of  Attor- 
neys-General of  New  York. 

Or.    Oregon; — Oregon    Report*. 

Or.  T.  Rep.  Orleans  Term  Reports,  vols.  1,  2  Mar- 
tin,   Louisiana. 

Ord.    Ord  on   Usury. 

Ord.  Amst.    Ordinance  of  Amsterdam. 


ABBREVIATION 


64 


ABBREVIATION 


Ord.  Ant.    Ordinance  of  Antwerp. 
Ord.  Bilb.    Ordinance  of  Bilboa. 
Ord.  Ch.    Orders  in  Chancery. 
Ord.  Cla.    Lord  Clarendon's   Orders. 
Ord.  Copenh.    Ordinance  of  Copenhagen. 
Ord.  CU    Orders  of  Court. 

Ord.  de  la  Mar.  or  Ord.  Mar.    Ordonnance  de  la  Ma- 
rine de  Louis  XIV. 
Ord.  Flor.    Ordinances    of   Florence. 
Ord.  Gen.    Ordinance  of  Genoa. 
Ord.  Hamb.    Ordinance    of    Hamburg. 
Ord.  Kbnigs.    Ordinance  of  Konigsberg. 
Ord.  Leg.    Ordinances  of  Leghorn. 
Ord.  Port.    Ordinances  of  Portugal. 
Ord.  Prus.    Ordinances  of  Prussia. 
Ord.  Rott.    Ordinances   of   Rotterdam. 
Ord.  Siccd.    Ordinances  of  Sweden. 
Ord  U.    Ord  on  the  Law  of  Usury. 
Ordr.  Jud.  Ins.    Ordronaux  on  Judicial  Aspects  of 
Insanity. 

Ordr.  Med.  Jur.    Ordronaux's      Medical      Jurispru- 
dence. 
Or  eg.    Oregon;— Oregon  Reports. 
Orf.  M.  L.    Orfila's   Medecine  Legale. 
Orl.  Bridg.  or  Orl.  Bridgman.    Orlando    Brldgman's 
Reports,  English  Common  Pleas. 

Oil.  T.  R.  Orleans  Term  Reports,  vols.  1  and  2, 
Martin's   Reports,   Louisiana. 

Orm.  or  Ormond.    Ormond's     Reports,     vols.     12-15 
Alabama. 
Ort.  Inst.    Ortolan's  Institutes  of   Justinian. 
Ort.  R.  L.    Ortolan's  History  of  Roman  Law. 
Ot.  or  Otto.    Otto's   United    States    Supreme    Court 
Reports. 
Ought.    Oughton's  Ordo  Judiciorum. 
Out.    Outerbridge's     Reports,    vols.     97-110     Penn- 
sylvania  State. 
Over,  or  Overton.    Overton's  Tennessee  Reports. 
Ow.  or  Owen.    Owen's    English   King's    Bench    and 
Common    Pleas    Reports ;— New    South    Wales    Re- 
ports. 

Oxley.  Young's  Vice-Admiralty  Decisions,  Nova 
Scotia,   edited  by  Oxley. 

P.  Easter  (Paschal)  Term  ;— Pennsylvania  ;—  Pe- 
ters ;— Pickering's  Massachusetts  Reports  ;— Probate; 
— Pacific  Reporter. 

P.  1891,  or  1891  P.    English  Law  Reports,  Probate 
Division,   from  1891  onward. 
P.  A.  D.    Peters's  Admiralty  Decisions. 
P.  G.    Pleas  of  the  Crown  ;— Parliamentary  Cases ; 
—Practice     Cases;— Prize      Cases;— Patent     Cases; — 
Privy     Council;— Prize     Court ;— Probate     Court;— 
Precedents     in     Chancery;— Penal     Code;— Political 
Code; — Procedure  Civile. 
P.  C.  Act.    Probate   Court  Act. 

P.  C.  App.  Privy  Council  Appeals,  English  Law 
Reports. 

P.  C.  C.  Privy  Cases;— Peters's  Circuit  Court  Re- 
ports. 

P.  C.  L.  J.    Pacific  Coast  Law  Journal,  San  Fran- 
cisco. 
P.  C.  R.    Parker's  Criminal  Reports,  New  York. 
P.  C.  Rep.    Privy   Council    Reports,  English. 
P.  CI.  R.    Parker's  Criminal    Reports,    New   York; 
—Privy  Council  Reports. 

P.  D.  or  P.  Div.  Probate  Division,  English  Law 
Reports   (1876-1890). 

P.  E.  I.  or  P.  E.  I.  Rep.  Prince  Edward  Island  Re- 
ports (Haviland's). 

P.  F.  S.  P.  F.  Smith's  Reports,  vols.  51-81%  Penn- 
sylvania State. 

P.  Jr.  &  H.    Patton,    Jr.,    &    Heath's  Virginia   Re- 
ports. 
P.  L.    Pamphlet  Laws.     Public  Laws.    Poor  Laws. 
P.  L.  Com.    Poor    Law   Commissioners. 
P.  L.  J.    Pennsylvania    Law    Journal ;— Pittsburgh 
Legal  Journal,  Pa. 
P.  L.  R.    Pennsylvania  Law  Record,  Philadelphia. 
P.  N.  P.    Peake's    English  Nisi   Prlus   Cases. 
P.  O.  Cas.    Perry's  Oriental  Cases,  Bombay. 
P.  O.  G.    Patent   Office   Gazette. 
P.  O.  R.    Patent   Office    Reports. 
P.  P.    Parliamentary   Papers. 

P.  P.  A.  P.  Precedents  of  Private  Acts  of  Parlia- 
ment.  ' 


P.R.    Parliamentary    Reports;— Pennsylvania    Re- 
ports,   by    Penrose    &    Watts ;—  Pacific    Reporter;— 
Probate   Reports;— Pyke's    Reports,   Canada. 
P.  R.  C.  P.    Practical    Register   in    Common    Pleas. 
P.  R.  Ch.    Practical    Register   in   Chancery. 
P.  R.  U.  C.    Practice   Reports,   Upper   Canada. 
P.  R.  &  D.    Power,    Rodwell     and    Dew's    Election 
Cases,  English. 

P.  S.  C.  V.  S.  Peters's  United  States  Supreme 
Court  Reports. 

P.  S.  R.    Pennsylvania    State    Reports. 

P.  W.  or  P.  Wms.  Peere  Williams's  Reports,  Eng- 
lish Chancery. 

P.  &  B.  Pugsley  &  Burbridge's  Reports,  New 
Brunswick. 

P.  &  C.  Prideaux  &  Cole's  Reports,  English 
Courts,  vol.  4  New  Session  Cases. 

P.  d  D.  Perry  &  Davison's  English  Queen's  Bench 
Reports?— Probate  and  Divorce. 

P.  &  H.    Patton,   Jr.,  &   Heath's  Virginia   Reports. 

P.  &  K.    Perry  &  Knapp's  English  Election  Cases. 

P.  &  M.  Philip  and  Mary ;  thus  1  P.  &  M.  signi- 
fies the  first  year  of  the  reign  of  Philip  &  Mary  ;— 
Pollock  and  Maitland's  History  of  English    Law. 

P.  &  R.  Pigott  and  Rodwell's  Election  Cases,  Eng- 
lish. 

P.  &  W.  Penrose  and  Watt's  Pennsylvania  Re- 
ports. 

Pa.  Pennsylvania;  —  Pennsylvania  Reports,  by 
Penrose  &  Watts; — Pennsylvania  State  Reports; — 
Paine,   United   States. 

Pa.  Co.  Ct.  or  Pa.  Co.  Ct.  R.  Pennsylvania  County 
Court   Reports. 

Pa.  Dist.  or  Pa.  Dist.  R.  Pennsylvania  District 
Court  Reports. 

Pa.  L.  G.  or  Pa.  Leg.  Gaz.  Legal  Gazette  Reports 
(Campbell's),    Pennsylvania. 

Pa.  L.  J.  Pennsylvania  Law  Journal  Reports 
(Clark's) ;— Pennsylvania  Law  Journal,  Philadel- 
phia. 

Pa.  L.  J.  Rep.  Pennsylvania  Law  Journal  Reports 
(Clark's  Reports). 

Pa.  L.  Rec.  or  Pa.  La.  Rec.  Pennsylvania  Law  Rec- 
ord, Philadelphia. 

Pa.  Law  Jour.  Pennsylvania  Law  Journal,  Phila- 
delphia. 

Pa.  Law  Jour.  Rep.  Pennsylvania  Law  Journal 
Reports    (Clark's). 

Pa.  Law  Rec.  Pennsylvania  Law  Record,  Phila- 
delphia. 

Pa.  Law  Ser.    Pennsylvania   Law   Series. 

Pa.  N.  P.  Brightly's  Nisi  Prius  Reports,  Penn- 
sylvania. 

Pa.  Rep.    Pennsylvania   Reports. 

Pa.  St.    Pennsylvania   State   Reports. 

Pa.  St.  Tr.    Pennsylvania    State    Trials    (Hogan's) 

Pa.  Super.  Ct.    Pennsylvania   Superior    Court 

Pac.    Pacific   Reporter. 

Pac.  Coast  L.  J.  Pacific  Coast  Law  Journal,  San 
Francisco. 

Pac.  Law  Mag.  Pacific  Law  Magazine,  San  Fran- 
cisco. 

Pac.  Law  Reptr.  Pacific  Law  Reporter,  San  Fran 
cisco. 

Pac.  R.  or  Pac.  Rep.  Pacific  Reporter  (commonly 
cited  Pac.  or  P.). 

Page  Div.    Page  on  Divorce. 

Pai.  Paine's  United  States  Circuit  Court  Reports.i 
—Paige's   New  York   Chancery  Reports. 

Pai.  Ch.  or  Paige  Ch.  Paige's  New  York  Chancerj 
Reports. 

Paige  Cas.  Dom.  Rel.  Paige's  Cases  in  Domestic 
Relations. 

Paige  Cas.  Part.    Paige's  Cases  in  Partnership. 

Paine  or  Paine  C.  C.  Paine's  United  States  Cir- 
cuit   Court    Reports. 

Pal.  Ag.    Paley  on  Agency. 

Pal.  Conv.    Paley  on  Summary  Convictions. 

Paley,  Prin.  &  Ag.    Paley  on   Principal  and  Agent 

Palgrave.  Palgrave's  Proceedings  in  Chancery ; — 
Palgrave's  Rise  and  Progress  of  the  English  Com- 
monwealth. 

Palm.  Palmer's  English  King's  Bench  Reports ; 
—Palmer's  Reports,  vols.  53-60  Vermont. 

Palm.  Pr.  Lords.  Palmer's  Practice  in  the  House 
of  Lords. 


ABBREVIATION 


05 


ABBREVIATION 


Palm.  (Vt.).    Palmer's  Vermont  Reports. 
Pamph.    Pamphlets. 
Pand.    Pandects. 

f'apy.    Papy's  Reports,  vols.  5,  6  Florida. 
Par.    Paragraph;— Parker's      English      Exchequer 
Reports  ; — Parsons's  Reports,  vols.  65-CC  New  Hamp- 
shire;—Parker's  New  York  Criminal  Reports. 
Par.  Dec.    Parsons's  Decisions,   Massachusetts. 
Par.  Eq.  Cas.    Parsons's      Select      Equity      Cases, 
Pennsylvania. 
Par.  W.  C.    Parish  Will  Case. 

Par.  d  Forib.  M.  J.    Paris  and  Fonblanque  on  Med- 
ical Jurisprudence. 

Pard.  or  Pard.  Droit  Commer.    Pardessus-,  Cours  de 
Droit    Commercial. 
Paid.  Lois  Mar.    Pardessus's    Lois    Maritimes. 
Pard.  Scrv.     Pardessus's  Traites  des  Servitudes. 
Pardessus.    Pardessus,    Cours    de    Droit    Commer- 
cial;  —  Pardessus,    Lois    Maritimes;   —  Pardessus, 
Trait6s  des   Servitudes. 

Park.    Parker's    Now    York    Criminal    Reports ; — 
Parker's    English    Exchequer   Reports. 

Park.  Cr.  Cas.  or  Park.  Cr.  Rep.    Parker's   Criminal 
Reports,  New  York. 
Park.  Dig.    Parker's  California  Digest. 
Park  Dow.    Park  on  Dower. 

Park.  Exch.     Parker's  English  Exchequer  Reports. 
Park.  Llist.  Ch.    Parker's    History    of   Chancery. 
Park  Ins.    Park  on  Insurance. 

Park.  (N.  H.J.    Parker's  New  Hampshire  Reports. 
Park.  Pr.  Ch.    Parker's   Practice   in    Chancery. 
Park.  Rev.  Cas.    Parker's    English   Exchequer    Re- 
ports (Revenue  Cases). 
Park.  Sh.    Parker  on  Shipping  and  Insurance. 
Parker.    Parker's    English    Exchequer    Reports; — 
Parker's    New    York    Criminal    Reports ; — Parker's 
New  Hampshire  Reports. 

Parker,  Cr.  Cas.  or  Parker,  Cr.  R.  (N.  Y.).    Parker's 
New  York  Criminal  Reports. 
Pari.  Cas.    Parliamentary  Cases.    House  of  Lords. 
Pari.  Hist.    Parliamentary   History. 
Pari.  Reg.    Parliamentary    Register. 
Paroch.  Ant.    Kennett's   Parochial   Antiquities. 
Pars.    Parsons   (see  Par.). 

Pars.  Ans.    Parsons's   Answer    to    the    Fifth    Part 
of  Coke's  Reports. 
Pars.  Bills  d  N.    Parsons  on  Bills  and  Notes. 
Pars.  Cas.     Parsons's   Select  Equity   Cases,    Penn- 
sylvania. 

Pars.  Com.    Parsons's  Commentaries  on  American 
Law. 
Pars.  Con.  or  Pars.  Cont.    Parsons  on  Contracts. 
Pars.  Costs.     Parsons  on  Costs. 
Para.  Dec.    Parsons's  Decisions,  Massachusetts. 
Pci rs.  Eq.  Cas.      Parsons's     Select    Equity    Cases, 
Pennsylvania. 

Essays.     Parsons's  Essays  on    Legal   Topics. 
Pars.  Ins.     Parsons  on  Marine  Insurance. 
Pars.  Law  Bus.     Parsons's  Law   of  Business. 
Pars.  Mar.  Ins.    Parsons  on  Marine  Insurance. 
Par.  Mar.  L.  or  Pars.  Mar.  Law.     Parsons  on  Mari- 
time Law. 
Pars.  Merc.  L.     Parsons  on   Mercantile   Law. 
Pars.  Notes  &  B.     Parsons  on  Notes  and  Bills. 
Pars.  Part.     Parsons  on  Partnership. 
Pars.  Sh.  d  Adm.    Parsons  on  Shipping  and  Admir- 
alty. 
Pars.  Will3.     Parsons  on  Wills. 
Pas.    Terminus  Paschae.    Easter  Term. 
Pasch.     Paschal'8   Reports,  Texas. 
Pasch.  Ann.  Const.     Paschal's  Annotated  Constitu- 
tion of  the  U.  S. 

Paschal.  Paschal's  Reports,  vols.  28-31  Texas  and 
Supplement  to  vol.  25. 

Pat.  Patent ;— Paton's  Scotch  Appeal  Cases  ;— Pat- 
erson's  Scotch  Appeal  Cases ;— Paterson's  New  South 
Wales  Reports. 

Pat.  A  pp.  Cas.  Paton's  Scotch  Appeal  Cases 
(Craigie,  Stewart  &  Paton) ;— Paterson's  Scotch.  Ap- 
peal  Cases. 

Pat.  Com.  or  Pat.  Comp.      Paterson's    Compendium 
of  English  and  Scotch  Law. 
Pat.  Dec.     Patent  Decisions. 
Pat.  H.  L.  Sc.    See  Pat.  App.  Cat. 
BOTJV.— 5 


Pat.  Law  Rev.     Patent    Law    Rev!  v.      Waal 
D.    C. 

Pat.  Off.  Gaz.    Official  Gazette,  U.  S.  Patent  Office, 
ington,    D.    C. 

Pat.  St.  Ex.    Paterson's  Law  of  Stock 

Pat.£H.     Patton   and   Heath's    i. 

Pat.dMur.     Paterson  and  Murray's   R 
South  Wales. 

Pater.     Paterson's    Scotch    Appeal    Cases ;— Pater- 
son's New  South  Wales   Reports. 

Paters.  App.  Cas.    Paterson's  Scotch  Appeal  Cases. 

Paters.  Comp.    Paterson's  Compendium  of  English 
and   Scotch   Law. 

Paters.  St.  Ex.     Paterson's  Law  of  Stock  Exchange. 

Pattrson.    Paterson's  Compendium  of  E 
Scotch  Law  ;— Paterson  on  the  Game   Laws;- 
son's   Liberty   of   the   Press  ;— Paterson   on   the   Lib- 
erty of  the  Subject ;— Paterson's  Law  a        I 
the     Stock     Exchange ;— Paterson '8     Scotch     Appeal 
Cases. 

Paton.  Craigie,  Stewart,  &  Paton's  Scotch  Appeal 
Cases. 

Patr.  El.  Cas.  or  Patr.  Elect.  Cas.  Patrick's  Elec- 
tion Cases,  Upper  Canada. 

Patt.  d  H.  or  Patton  d  H.  Patton,  Jr.,  &  Heath's 
Virginia  Reports. 

Paul  Par.  Off.     Paul's  Parish  Officer. 

Paulus.     Julius  Paulus,  Sententia 

Pay.  Munc.  Rights.    Payne  on  Mui  ^hts. 

Pea.     Peake's  English  Nisi  Priu- 

Peach.  Mar.  Sett.  Peachey  on  Marriage  Settle- 
ments. 

Peake's  Nisi   Prlus   Cases,   English   Courts. 

Peak.  Add.  Cas.  Peake's  Additional  Cases,  Nisi 
Prius,    English. 

Peake  on  Evidence. 

Peak.  N.  P.  Cas.  Peake's  Nisi  Prius  Cases.  Eng- 
lish. 

Peake  Add.  Cas.  Peake's  Additional  Cases,  vol.  2 
of    Peake. 

Peake  N.  P.     Peake's  English   Nisi   Prlus  Cases. 

Pear.     Pearson's  Reports.  Pennsylvania. 

Pearce  C.  C.  Pearce's  Reports  in  Dearsly's  Crown 
Cases.     English. 

Pears.     Pearson's  Reports.   Pennsylvania. 

Peck.     Peck's  Tennessee  R. ■;■  ,'s  Reports, 

vols.     11-30     Illinois;— Peckwell's     Engl. 
Cases. 

Peck.  El.  Cas.     Peckwell's  Election  Cases,  English. 

Peck.  (III.).  Peck's  Reports,  Illinois  Supreme 
Court  (11-38  Illinois). 

Peck  Mun.  L.     Peck's  Municipal  Laws  of  Ohio. 

Peck  (Tenn.).     Peck's   Tennessee   Reports. 

Peck  Tr.     Peck's   Impeachment  Trial. 

Peckw.  or  Peckw.  Eng.  El.  Cas.  Peckwell's  English 
Election  Cases. 

Peeples.     Peeples'  Reports,  vols.  78,  79  Georgia. 

Peoples  d  Stevens.  Peeples  &  Stevens's  Reports, 
vols.   80-97   Georgia. 

Peere  Wms.  or  Peere  Williams.  Peere  Williams's 
Reports,   English  Chancery. 

Pemb.  J.  d  O.    Pemberton's  Judgments  and  Orders. 

Pen.    Pennington's  Reports,  New  Jersey  Law. 

Pen.  Code.    Penal  Code. 

Pen.  N.  J.     Pennington's  New  Jersey  Reports. 

Pen.  d  W.  Penrose  &  Watts's  Pennsylvania  Re- 
ports. 

Penn.  Pennsylvania ;— Pennsylvania  State  Re- 
ports ;— Pennypacker's  Unreported  Pennsylvania 
Cases  ; — Pennington's  New  Jersey  Reports  ;— Penne- 
will's   Delaware   Reports. 

Penn.  Bla.  Pennsylvania  Blackstone,  by  John 
Reed. 

Perm.  Co.  Ct.  Rep.  Pennsylvania  County  Court  Re- 
ports. 

Perm.  Del.     Pennewlll's  Delaware   Reports. 

Penn.  Dist.  Rep.    Pennsylvania  District  Reports. 

Penn.  L.  O.  Pennsylvania  Legal  Gazette  Reports 
(Campbell's). 

Penn.  L.J.  Pennsylvania  Law  Journal,  Philadel- 
phia. 

Penn.  L.  J.  R.  Pennsylvania  Law  Journal  Reports 
(Clark's). 

Penn.  Law  Jour.  Pennsylvania  Law  Journal,  Penn- 
sylvania, 


ABBREVIATION 


66 


ABBREVIATION 


Penn.  Law  Jour.  Rep.  Pennsylvania  Law  Journal 
Reports   (Clark's). 

Penn.  Law  Rec.  Pennsylvania  Law  Record,  Phila- 
delphia. 

Penn.  Leg.  Gaz.  Pennsylvania  Legal  Gazette  Re- 
ports  (Campbell's). 

Penn.  Pr.  Pennsylvania  Practice,  by  Troubat  and 
Haly. 

Penn.  R.  or  Penn.  Rep.     Pennsylvania  Reports. 

Penn.  St.  or  Penn.  St.  R.  Pennsylvania  State  Re- 
ports. 

Penna.  L.  R.  Pennsylvania  Law  Record,  Philadel- 
phia. 

Penning.     Pennington's  Reports,   New  Jersey. 

Penny.  Pennypacker's  Unreported  Pennsylvania 
Cases  ; — Pennypacker's  Pennsylvania  Colonial  Cases. 

Penr.  &  W.  Penrose  and  Watts's  Pennsylvania  Re- 
ports. 

Penrud.  Anal.  Penruddock's  Analysis  of  the  Crim- 
inal Law. 

Peo.  L.  Adv.    People's  Legal  Adviser,  Utica,  N.  T. 

Per.  Or.  Cas.    Perry's  Oriental  Cases,  Bombay. 

Per  T.  &  T.    Perry  on  Trusts  and  Trustees. 

Per.  <£•  Dav.  Perry  &  Davison's  English  King's 
Bench   Reports. 

Per.  &  K.  El.  Cas.  or  Per.  &  En.  Perry  and  Knapp's 
Election  Cases,  English. 

Perk.  Perkins  on  Conveyancing ; — Perkins  on 
Pleading ;— Perkins's  Profitable  Book  (Conveyanc- 
ing). 

Perk.  Prof.  Bk.     Perkins's  Profitable   Book. 

Perp.  Pat.   Perpigna  on   Patents. 

Perry.  Sir  Erskine  Perry's  Reports,  In  Morley'8 
(East)  Indian  Digest ; — Perry's  Oriental  Cases,  Bom- 
bay. 

Perry  &  D.  Perry  &  Davison's  English  King's 
Bench  Reports. 

Perry  &  Kn.  Perry  &  Knapp's  English  Election 
Cases. 

Pet.  Peters's  United  States  Supreme  Court  Re- 
ports ; — Peters's  United  States  Circuit  Court  Re- 
ports ;— Peters's  United  States  District  Court  Re- 
ports (Admiralty  Decisions)  ; — Peters's  Prince  Ed- 
ward Island  Reports. 

Pet.  Ad.  or  Pet.  Adm.  Peters's  United  States  Dis- 
trict  Court   Reports   (Admiralty   Decisions). 

Pet.  Br.  or  Pet.  Brooke.  Petit  Brooke  or  Brooke's 
New  Cases,  English  King's  Bench  (Bellewe's  Cases 
temp.  Hen.  VIII.). 

Pet.  C.  C.  Peters's  United  States  Circuit  Court 
Reports. 

Pet.  Cond.  Peters's  Condensed  Reports,  United 
States   Supreme   Court. 

■Pet.  Dig.  Peters's  United  States  Digest; — Petl- 
colas's  Texas  Digest. 

Pet.  S.  C.  Peters's  United  States  Supreme  Court 
Reports. 

Peters.    Peters's  Reports,  U.  S.  Supreme  Court. 

Peters  Adm.  Peters's  United  States  District  Court 
Reports   (Admiralty  Decisions). 

Peters  C.  C.  Peters's  Reports,  U.  S.  Circuit  Court, 
3d   Circuit. 

Petersd.  Air.     Petersdorff's  Abridgment. 

Petersd.  B.    Petersdorff  on  the  Law  of  Bail. 

Petersd.  L.  of  N.  Petersdorff  on  the  Law  of  Na- 
tions. 

Petersd.  Pr.    Petersdorff's  Practice. 

Peth.  Int.     Petheram  on   Interrogatories. 

Petit  Br.  Petit  Brooke,  or  Brooke's  New  Cases, 
English    King's    Bench. 

Ph.  Phillips'  English  Chancery  Reports  ;— Philli- 
more's  English  Ecclesiastical  Reports   (see  Phil.). 

Ph.  Ch.     Phillips's  English  Chancery  Reports. 

Ph.  St.  Tr.    Phillipps's  State  Trials. 

Phal.  C.  C.  or  Phalcn.     Phalen's  Criminal  Cases. 

Phear  W.     Phear  on   Rights   of  Water. 

Pheney  Rep.     Pheney's  New  Term  Reports. 

Phil.  Phillips's  English  Chancery  Reports  ; — Phil- 
lips's North  Carolina  Reports  ; — Phillips's  English 
Election  Cases  ; — Phillimore's  English  Ecclesiastical 
Reports  ; — Philadelphia  Reports  ; — Phillips's  Illinois 
Reports. 

Phil.  Ecc.  Judg.  Phillimore's  Ecclesiastical  Judg- 
ments. 


Phil.  Ecc.  R.  Phillimore's  English  Ecclesiastical 
Reports. 

Phil.  El.  Cas.    Phillips's  English  Election  Cases. 

I'hil.  Eq.  Phillips's  North  Carolina  Equity  Re- 
ports. 

Phil.  Ev.     Phillips  on  Evidence. 

Phil.  Earn.  Cas.  Phillipps's  Famous  Cases  in  Cir- 
cumstantial Evidence. 

Phil.  Ins.    Phillips  on  Insurance. 

Phil.  Law  or  Phil.  N.  C.  Phillips's  North  Carolina 
Law   Reports. 

Phil.  Pat.    Phillips  on  Patents. 

Phil.  St.  Tr.     Phillipps's  State  Trials. 

Phila.  Philadelphia  Reports,  Common  Pleas  of 
Philadelphia  County. 

Phila.  Law  Lib.     Philadelphia   Law   Library. 

Phila.  (Pa.).  Philadelphia  Reports,  Common  Pleas 
of   Philadelphia  County. 

Philippine  Co.     Philippine  Code. 

Phill.  Phillimore's  Reports,  English  Ecclesiastical 
Courts  ;— Phillips  (see  Phil,  and  Phillips). 

Phill.  Copyr.     Phillips  on  Copyright. 

Phill.  Cr.  L.  Phillimore's  Study  of  the  Criminal 
Law. 

Phill.  Dom.  Phillimore  on  the  Law  of  Domicll. 

Phill.  Eccl.     Phillimore  on  Ecclesiastical  Law. 

Phill.  Eccl.  Judg.  Phillimore's  Ecclesiastical  Judg- 
ments. 

Phill.  El.  Cas.     Phillips's   Election   Cases. 

Phill.  Eq.  Phillips's  Equity  Reports,  North  Caro- 
lina. 

Phill.  Ev.  Phillimore  on  Evidence  ;— Phillips  on 
Evidence. 

Phill.  Earn.  Cas.  Phillipps's  Famous  Cases  In  Cir- 
cumstantial  Evidence. 

Phill.  Ins.    Phillips  on  Insurance. 

Phill.  Insan.     Phillips  on  Insanity. 

Phill.  Int.     Phillimore  on   International  Law. 

Phill.  Jur.    Phillimore  on  Jurisprudence. 

Phill.  Law  (N.  C).  Phillips's  Law  Reports,  North 
Carolina. 

Phill.  Mech.  Hens.     Phillips  on   Mechanics'   Liens. 

Phill.  Prin.  Jur.  Phillimore's  Principles  and  Max- 
ims of  Jurisprudence. 

Phill.  Priv.  L.  Phillimore's  Private  Law  among 
the   Romans. 

Phill.  Rom.  L.  Phillimore's  Study  and  History  of 
the  Roman  Law. 

Phill.  St.  Tr.     Phillips's   State  Trials. 

Phillim.  Phillimore's  English  Ecclesiastical  Re- 
ports.     See,    also,    Phil.,    Phill. 

Phillim.  Dom.    Phillimore  on  the  Law  of  Domlcil. 

Phillim.  Ecc.  Law.  Phillimore's  Ecclesiastical 
Law. 

Phillips.  Phillips's  English  Chancery  Reports ; — 
Phillips's  North  Carolina  Reports,  Law  and  Equity ; 
—Phillips's  Reports,  vols.  152-187  Illinois. 

Pick.     Pickering's  Reports,  Massachusetts. 

Pickle.    Pickle's  Reports,  vols.  85-108  Tennessee. 

Pierce  R.  R.     Pierce  on  Railroads. 

Pig.  Rec.    Pigott  on  Common   Recoveries. 

Pig.  &  R.  Pigott  and  Rodwell's  Registration  Ap- 
peal Cases,  English. 

Pike.    Pike's  Reports,  vols.  1-5  Arkansas. 

Pin.  or  Pinn.     Plnney's  Wisconsin  Reports. 

Pist.  or  Piston.     Piston's   Reports,   Mauritius. 

Pitc.  Crim.  Tr.  Pitcairn's  Ancient  Criminal  Trials, 
Scotland. 

Pitc.  Tr.  Pitcairn's  Ancient  Criminal  Trials,  Scot- 
land. 

Pitm.  Prin.  &  Sur.  Pitman  on  Principal  and 
Surety. 

Pitm.  S.     Pitman  on  Suretyship. 

Pitts.  L.  J.  or  Pitts.  Leg.  Jour.  Pittsburg  Legal 
Journal,  Pittsburg,   Penn. 

Pitts.  Rep.  or  Pitts.  Repts.  Pittsburgh  Reports, 
Pennsylvania   Courts   (reprinted   from   the   Journal). 

Pittsb.  Leg.  J.  (O.  S.).  Pittsburg  Legal  Journal, 
Old  Series. 

Pittsb.  R.  (Pa.).  Pittsburg  Reports,  Pennsylvania 
Courts  (reprinted  from  the  Journal). 

PI.  Placiti  Generalia  ;— Plowden's  Commentaries 
or  Reports,  English  King's  Bench,  etc. 

PI.  C.     Placita  CoronaB  (Pleas  of  the  Crown). 


ABBREVIATION 


67 


ABBREVIATION 


PI.  Com.     Plowden's     Commentaries    or     Reports, 
■  ii   King's  Bench. 

PI.  U.     Plowden  on  Usury. 
tlatt  Gov.     Piatt  on  the  Law  of  Covenants. 

Piatt  on  Leases. 
PW>.     Plebiscite. 
tiff.     Plaintiff. 

or  timed,  or  Plowd.  Com.     Plowden's   English 
King's    Bench    Commentaries   or   Reports. 

Crim.  Con.  Trials. 

Plum.  Contr.     Plmnptre  on  Contracts. 

Po.  Ct.     Police  Court. 

Pol.     Pollexfen's   English    King's    Bench    Reports, 
etc.  ; — Police. 

Pol.  Code.     Political  Code. 

Pol.  Cont.     Pollock  on   Contracts. 

Pol.  Set.  Qwar.     Political  Science  Quarterly. 

Poll.    Pollexfen's  English  King's  Bench  Reports. 

Poll.  C.  C.  Pr.      Pollock's    Practice    of    the    County 
Courts. 

Poll.  Contr.     Pollock  on  Contracts. 

Poll.  Dig.  Part.     Pollock's   Digest   on    the  Law    of 
Partnership. 

Poll.  Doc.     Pollox  on  Production  of  Documents. 

Poll.  Lead.  Cas.     Pollock's  Leading  Cases. 

Poll.  Part.     Pollock   on   Partnership. 

Poll.  &  Maitl.      Pollock    &    Maitland's    History    of 
English   Law. 

Pollex.      Pollexfen's    English    King's    Bench     Re- 
ports, etc. 

Pols.  Int.  or  Pols.  Law  of  Nat.     Poison  on  Law  of 
Nations. 

Pom.  Con.  L.  or  Pom.  Const.  Law.     Pomeroy'a   Con- 
stitutional Law  of  the  United  States. 

Pom.  Contr.     Pomeroy  on  Contracts. 

Pom.  Mun.  L.     Pomeroy's  Municipal  Law. 

Pomeroy.    Pomeroy's  Reports,  vols.  73-128  Califor- 
nia. 

Poorc  Const.     Poore's  Federal  and  State  Constitu- 
tions. 

Pop.     Popham's  English  King's  Bench  Reports. 

Pop.  Sci.  Mo.     Popular  Science  Monthly. 

Pope.      (Pope)    Opinions   Attorney   General,    pL    1, 
vol.  22. 

Pope  C.  &  E.    Pope  on  Customs  and  Excise. 

Pope,  Lun.     Pope  on  Lunacy. 

Poph.     Popham's   Reports,   English    King's   Bench. 

Poph.  (2).    Cases  at  the  end  of  Popham's  Reports. 

Port.  (Ala.).     Porter's  Alabama   Reports. 

Port.  (Ind.).     Porter's   Reports,   Indiana. 

Porter.     Porter's  Alabama   Reports  ; — Porter's   Re- 
ports,  vols.   3-7   Indiana. 

Posey.    Unreported  Commissioner  Cases,  Texas. 

Posf.    Post's  Reports,  vols.  23-26  Michigan;— Post's 
Reports,  vols.  42-61  Missouri. 

Posters  Gaius  Inst.    Poste's   Translation    of    Galus. 

Postl.  Diet.     Postlethwaite's    Commercial    Diction- 
ary. 

Pot.  Dwar.    Potter's  Dwarrls  on  Statutes. 

Poth.  Bail  d  Rente.    Pothier,  TraitS  du  Contrat  do 
Ball   a    Rente. 

Poth.  Cont.     Pothier  on   Cpntracts. 

Poth.  Cont.  de  Change.      Pothier,     Traite    du    Con- 
trat  de   Change. 

Poth.  Cont.  Sale  or  Poth.  Contr.     Sale.      Pothier, 
Treatise  on  the  Contract  of  Sale. 

Poth.  de  Change.     Pothier,    Traite    du    Contrat    de 
Change. 

Poth.  de  VUsure.     Pothier,   Tralte  de   l'Usure. 

Poth.  de  SociHC  App.     Pothier,    Tralte    du    Contrat 
de  Society. 

Poth.  du  Depot.     Pothier,    Traltfi    du    D6p6t 

Poth.  CEuv.     Pothier's   CEuvres. 

Poth.  Louage.    Pothier,  Tralte  du  Contrat  de  Lou- 
age. 

Poth.  Mar.  Cont.     Pothier's    Treatise   on   Maritime 
Contracts. 

Poth.  Mar.  Louage.  Pothier,   Tralte  du  Contrat   de 
Louage. 

Poth.  Obi.     Pothier,  Traite  des  Obligations. 

Poth.  Pand.     Pothier's    Pandects. 

Poth.  Part.     Pothier   on    Partnership. 

Poth.   Proc.   Civ.   or  Poth.   Pruc.   Civil,       Pothier, 
Traite  de  la  Procedure  Civile. 


Poth.  Proc.  Crim.     Pothier,  Tralte  de 
Crlmlnale. 
Poth.  Sociiti.     Pothier,   Tralte   da  iQ  So- 

ciete. 

toth.Traitide  Change.     Pothier.    Traite    du    Con- 
trat de  Change. 

Poth.  Vente.     Pothier.  Traite  du  Contrat  de 

Pothier,  Pand.    Pothier,  Pandecuw  . 

Potter.     Potter'  vols.  -1-7  Wyoming. 

Potter  Corp.    Potter  on  Corporations. 

'.     Potter's  Dwarrls  on  Statutes. 

Potts  L.  D.    Potts's  Law  Dictionary. 
Ltn.  /.     Powell's  American  Law. 

Pow.  Apr.  Pr.     Powell's  Appellate  Proceedings. 

Pom?.  Con.     Pdwell  on  Contracts. 

Povf.  Conv.     Powell  on  Conveyancing. 

Poto.  Dev.     Powell,    Essay    upon    the    Learning   of 
I,   etc. 

Pow.  Ev.    Powell  on   Evidence. 

Poto.  Mort.  or  Pow.  Mortff.    Powell  on  Mortgages. 

Pow.  Powers.     Powell  on  P 

Pow.  Pr.     Powell's  Precedents  In  Conveyancing. 

Pow.  R.  &  D.     Power,  Rodwell  and  Dew's  Election 
Cases,  English. 

Poyn.  M.  di  D.     Poynter  on   Marriage  and   Divorce. 

Pr.      Price's    English    Exchequer    Reports  ;— Prin- 
(the  beginning  of  a  title,  law,  or  section);— 
Practice   Reports   (Ontario). 

Pr.C.K.B.     Practice   Cases   In   the  King's   Bench. 

Pr.  Ch.    Precedents  In  Chancery,  by  Finch  ;— Prac- 
tice in  the  High  Court  of  Chancery. 

Pr.  Ct.     Prerogative  Court. 

Pr.  Dec.    Printed  Decisions  (Sneed's),  Kentucky. 

Pr.  Div.      Probate    Division,    Law    Reports  ;— Prlt- 
chard's   Divorce   and    Matrimonial    Cases. 

Pr.  Exch.    Price's  Exchequer  Reports,  English. 

Pr.  Falo.      President    Falconer's    Reports,     Scotch 
Court  of  Session. 

Pr.  L.     Private  Law  or  Private  Laws. 

Pr.  Min.     Printed   Minutes  of  Evidence. 

Pr.  R.     Practice  Reports. 

Pr.  Reg.  B.  C.      Practical     Register     In    the     Ball 
Court.  * 

Pr.  Reg.C.P.     Practical   Register  in   the  Common 
Pleas. 

Pr.  Reg.  Ch.      Practical     Register     in     Chancery 
(Styles's). 

Pr.  St.     Private   Statutes. 

Pr.&Div.    Probate  and  Divorce,  English  Law  Re- 
ports. 

Pra.  Cas.    Prater's  Cases  on  Conflict  of  Laws. 

Pract.     The  Practitioner. 

Prat.  Cos.     Prater's  Cases  on  Conflict  of  Laws. 

Prat.  H.  &  W.     Prater  on  the  Law  of  Husband  and 
Wife. 

Pratt  B.  S.     Pratt  on  Beneficial  Building  Societies. 

Pratt  C.  W.     Pratt  on   Contrabai   I 

Pratt  Cont.  Cas.    Pratt's  Contraband-of-War  Cases. 

Preb.  Dig.     Preble   Digest,   Patent   Cases. 

Prec.  Ch.  -Precedents  in  Chancery. 

Pref.     Preface. 

Prel.    Prgliminaire. 

Prer.    Prerogative  Court 

Pres.  Abs.    Preston  on  Abstracts. 

Pres.  Conv.    Preston  on  Conveyancing. 

Pies.  Est.    Preston  on  Estates. 

Pres.  Falc.     President    Falconer's    Scotch    Session 
Cases  (Gilmour  &  Falconer). 

Pres.  Leg.     Preston  on  Legacies. 

Pres.  Merg.     Preston  on  Merger. 

Pres.  Shcp.  T.    Preston's  Sheppard's  Touchstone, 

Prest.  Conv.    Preston  on  Conveyancing. 

1'ri  *t.  Est.    Preston  on  Esta 

Prest.  Mcrg.     Preston  on  Merger. 

Pri.  or  trice.     Price's   Exchequer    Reports. 

Price   Exch.     Price's  Reports,  Exchequer,   English. 

Price  Liens.     Price  on    Liens. 

Price  Notes  P.  P.  or  Price  P.  P.     Price's     Notes     of 
Points  of  Practice,   English  Exchequer  Cases. 

II.  Est.    Price  on  Acts  Relating  to  Real  Es- 
tate   (Pa.). 

Price  <£  St.  Price  and  Steuart  Trade-mark  Cases. 
Prick,  or  trickett  (Id.).  Prickett's  Idaho  Reports. 
Prid.  CIlu.  Gui.     Prldeaux's  Churchwarden's  G>ide. 


ABBREVIATION 


68 


ABBREVIATION 


Prid.  Free.  Prldeaux's  Precedents  in  Convey- 
ancing. 

L'r.d.  &  C.  Prideaux  and  Cole's  Reports,  English, 
N'dW  Sessions  Cases,  vol.  4. 

Prin.  Principium.  The  beginning  of  a  title  or 
law. 

Prin.  Dec.    Printed  Decisions  (Sneed's),  Kentucky. 

Prior  Lim.     Prior  on  Construction  of  Limitations. 

Pritch.  Ad.  Dig.     Pritchard's  Admiralty   Digest. 

Pritch.  M.  &  D.  Pritchard  on  Marriage  and  Di- 
vorce. 

Pritch.  Quar.  Sess.    Pritchard,  Quarter  Sessions. 

Priv.  Counc.  App.     Privy   Council   Appeals. 

Priv.  Lond.     Customs  or   Privileges  of   London. 

Pro.  L.      Province   Law. 

Pro.  quer.     Pro  querentem.     For  the  plaintiff. 

[1891]  Prob.  Law  Reports,  Probate  Division, 
from  1891  onward. 

Prob.  Code.     Probate  Code. 

Prob.  Div.  Probate  Division,  English  Law  Re- 
ports. 

Prob.  Rep.     Probate  Reports. 

Prob.  Rep.  Ann.  Probate  Reports  Annotated. 

Prob.  &  Adm.  Div.  Probate  and  Admiralty  Divi- 
sion, Law  Reports. 

Prob.  &  Div.  Probate  and  Divorce,  English  Law 
Reports. 

Prob.  &  Mat.  or  Prob.  &  Matr.  Probate  and  Matri- 
monial  Cases. 

Proc.  Ch.     Proceedings  in  Chancery. 

Proc.  Pr.  or  Proc.  Prac.     Proctor's   Practice. 

Proff.  Corp.     Proffatt  on  Corporations. 

Proff.  Jury  Tr.    Proffatt  on   Jury  Trials. 

Proff.  Not.     Proffatt  on  Notaries. 

Proff.  Wills.     Proffatt  on  Wills. 

Prop.  Lawyer  N.  S.  Property  Lawyer,  New  Series 
(periodical),   England. 

Proud.  Dom.  Pub.    Proudhon's  Domaine  Public. 

Proud! .  Land  Dec.  (U.  S.).  Proudflt's  United 
States  Land  Decisions. 

Prouty.     Prouty's  Reports,  vols.  61-68  Vermont. 

Prt.  Rep.     Practice  Reports. 

Psych.  &  M.  L.  J.  Psychological  and  Medico-Legal 
Journal,  New  York. 

Puff.    Puffendorf's  Law  of  Nature  and  Nations. 

Pugs.     Pugsley's  Reports,  New  Brunswick. 

Pugs.  &  Bur.  or  Pugs.  &  Burb.  Pugsley  and  Bur- 
bridge's   Reports,    New   Brunswick. 

Pull.  Accts.    Pulling's  Law  of  Mercantile  Accounts. 

Pull.  Attor.     Pulling  on  the  Law  of  Attorneys. 

Pull.  Laios  &  Cust.  Lond.  Pulling's  Treatise  on  the 
Laws,  Customs,  and  Regulations  of  the  City  and 
Port  of  London. 

Pull.  Port  of  London.  Pulling,  Treatise  on  the 
Laws,  Customs,  and  Regulations  of  the  City  and 
Port  of   London. 

Puis,  or  Pulsifer.  Pulsifer's  Reports,  vols.  65-63 
Maine. 

Pult.     Pulton  de  Pace  Regis. 

Pump  Ct.     Pump  Court  (London). 

Punj.  Rec.     Punjab   Record. 

Purd.  Dig.  (Pa.).  Purdon's  Digest  of  Pennsylvania 
Laws. 

Purd.  Dig.  (U.  S.).  Purdon's  Digest  of  United 
States  Laws. 

Puter.  PI.    Puterbauch's  Pleading.' 

Pyke.  Pyke's  Lower  Canada  King's  Bench  Re- 
ports. 

Q.  Question;  —  Quorum;  —  Quadragesms  (Year 
Books  Part  IV)  ;—  Quebec;  —  Queensland;  —Attach. 
Quoniam  Attachiamenta. 

Q.  B.  Queen's  Bench;— Queen's  Bench  Reports 
(Adolphus  &  Ellis,  New  Series,  English)  ;— English 
Law  Reports,  Queen's/  Bench  (1841-1852)  ;— Queen's 
Bench  Reports,  Upper  Canada;— Queen's  Bench  Re- 
ports, Quebec;— English  Law  Reports,  Queen's 
Bench   Division,   1891. 

11891]  Q.  B.  Law  Reports,  Queen's  Bench  Divi- 
sion, from  1891  onward. 

Q.  B.  Div.  or  Q.  B.  D.  Queen's  Bench  Division, 
English  Law  Reports   (1876-1890). 

Q.  B.  R.    Queen's   Bench   Reports,   by   Adolphus   & 
Ellis    (New   Series). 
Q.  B.  U.  C.    Queen's  Bench  Reports,  Upper  Canada. 
Q.  C.    Queen's    Counsel. 


Q.  L.  R.  Quebec  Law  Reports;— Queensland  Law 
Reports. 

Q.  P.  R.    Quebec    Practice   Reports. 

Q.  R.    Official   Reports,   Province  of  Quebec 

Q.  R.  Q.  B.    Quebec   Queen's    Bench   Reports. 

Q.  S.    Quarter  Sessions. 

Q.  t.    Qui  tarn. 

Q.v.    Quod  vide;    Which  see. 

Q.  Vict.  Statutes  of  Province  of  Quebec  (Reign 
of  Victoria). 

Q.  War.    Quo  Warranto. 

Qu.  L.  Jour.  Quarterly  Law  Journal,  Richmond, 
Va. 

Qu.  L.  Rev.  Quarterly  Law  Review,  Richmond, 
Va. 

Qua.  cl.  fr.    Quare  clausum  fregit  (q.  v.). 

Quadr.    Quadragesms    (Year    Books,  Part   IV). 

Quart.  Rev.  Quarterly  Law  Review,  Richmond, 
Virginia. 

Qucb.  L.  R.  Quebec  Law  Reports,  two  series. 
Queen's   Bench  or   Superior  Court. 

Queb.  Q.  B.    Quebec   Queen's  Bench   Reports. 

Quebec  L.  Rep.  Quebec  Law  Reports,  two  series, 
Queen's  Bench  or  Superior  Court. 

Queens.  L.  J.    Queensland  Law  Journal. 

Queens.  L.  R.    Queensland  Law   Reports. 

Quin.  or  Quincy.    Quincy's   Massachusetts   Reports. 

Quinti,  Quinto.    Year  Book,  6  Hen.  V. 

Quo  War.    Quo  Warranto. 

R.  Resolved.  Repealed.  Revised.  Revision, 
Rolls  ; — King  Richard  ;  thus  1  R.  III.  signifies  tho 
first  year  of  the  reign  of  King  Richard  'ill. ; — 
Rawle's   Reports,    S.   C.   of  Pennsylvania. 

R.  A.     Regular  Appeals.     Registration  Appeals. 

Re.  Rescriptum  ; — Rolls  of  Court ; — Record  Com- 
missioners ; — Railway  Cases  ; — Registration  Cases  ;— 
Revue  Critique,   Montreal. 

R.  C.  £  C  R.  Revenue,  Civil  and  Criminal  Re- 
porter, Calcutta. 

R.  O.     Regulae  Generales,  Ontario. 

R.  I.     Rhode   Island  ;— Rhode   Island    Reports. 

R.  J.  &  P.  J.  Revenue,  Judicial  and  Police  Jour- 
nal, Calcutta. 

R.  L.  Roman  Law; — Revised  Laws; — Revue  Le- 
gale. 

R.  L.  &  S.  Ridgeway,  Lapp  and  Schoales's  Reports, 
Irish  King's  Bench. 

R.  L.  &  W.  Roberts,  Learning  and  Wallis's  County 
Court  Reports,  English. 

R.  M.  Ch.  or  R.  M.  Charlt.  R.  M.  Charlton's  Geor- 
gia Reports. 

R.  P.  C.  Real  Property  Cases,  English  ;— Reports 
Patent  Cases. 

R.  P.  Cas.    Real  Property  Cases,  English. 

R.  P.  &  W.  (Pa.).  (Rawle)  Penrose  and  Watt's 
Pennsylvania   Reports. 

R.  R.  &  Can.  Cas.  Railway  and  Canal  Cases,  Eng- 
lish. 

R.  S.     Revised  Statutes. 

R.  S.  L.    Reading  on  Statute  Law. 

R.t.F.  Reports  tempore  Finch,  English  Chan- 
cery. 

R.  t.  H.  Reports  tempore  Hardwicke  (Lee)  Eng- 
lish King's  Bench ; — Reports  tempore  Holt  (Cases 
Concerning  Settlement). 

R.  t.  Bardic.  Reports  tempore  Hardwicke,  English 
King's  Bench. 

R.  t.  Holt.  Reports  tempore  Holt,  English  King's 
Bench. 

R.  t  Q.  A.  Reports  tempore  Queen  Anne,  vol.  11 
Modern  Reports. 

R.  &  B.  Cas.  Redfleld  and  Bigelow's  Leading  Cases 
on   Bills   and   Notes. 

R.  &  C.  Cas.    Railway  and  Canal  Cases,  English. 

R.  &  C.  N.  8c.  Russell  &  Chesley's  Reports,  Nova 
Scotia. 

R.  &  G.  N.  Sc.  Russell  &  Geldert's  Reports,  Nova 
Scotia. 

R.  &  H.  Dig.  Robinson  &  Harrison's  Digest,  On- 
tario. 

R.  &  J.  Dig.     Robinson  &  Joseph's  Digest,  Ontario. 

R.  &  M.  Russell  &  Mylne's  English  Chancery  Re- 
ports ;— Ryan  &  Moody's  English  Nisi  Prius  Reports. 

R.  &  My.  Russell  and  Mylne's  Reports,  English 
Chancery. 


ABBREVIATION 


69 


ABBIClIVIA'i 


R.  £  M.  C.  C.  Ryan  and  Moody's  Crown  Cases  Re- 
served, English. 

R.£M.Dig.  Rapalje  &  Mack's  Digest  of  Railway 
Law. 

R.  £  M.  N.  P.  Ryan  and  Moody's  Nisi  Prius  Cas- 
es, English. 

R.  d-  R.  C.  C.  Russell  and  Ryan's  Crown  Cases  Re- 
served,   English. 

Ra.  Co.     English  Railway  and  Canal  Cases. 

Ruder.     Radcr's  Reports,  vols.  13S-163  Missouri. 

Raff  Pens.  Man.     Raff's  Pension  Manual. 

Rail.  £  Can.  Cas.  English  Railway  and  Canal  Cas- 
es ;— Railway    and   Canal   Traffic   Cases. 

Railw.  Cas.     Railway  Cases. 

Railw.  £  C.  Cas.  Railway  and  Canal  Cases,  Eng- 
lish. 

Railw.  £  Corp.  Law  J.  Railway  and  Corporation 
Law  Journal. 

.1.     Ram  on  Assets. 

<'as.  P.  £  E.     Ram's    Cases    of    Pleading    and 
Evidence. 

RamF.     Ram  on   Facts. 

Judgm.   Ram  on   Science  of  Legal  Judgment. 

Ram  Leg.  Judgm.  (Towns.  Ed.).  Ram's  Science  of 
Legal   Judgment,   Notes  by  Townslimd. 

Ram  W.    Ram  on  Exposition  of  Wills. 

Ru7>i.  £  Mor.  Ramsey  &  Morln's  Montreal  Law 
Reporter. 

Rand.  Randolph's  Virginia  Reports  ;— Randolph's 
Reports,  vols.  21-56  Kansas ;— Randolph's  Reports, 
vols.  7-11  Louisiana  Annual ; — Randall's  Reports, 
vols.  52-71  Ohio  State. 

Rand.  (Kan. J.      Randolph's    Reports,    Kansas. 

Rand.  (La.).  Randolph's  Reports,  Louisiana  An- 
nual Reports,  vols.  7-11. 

Rand.  Perp.     Randall  on  Perpetuities. 

Raney.     Raney's   Reports,   vols.  16-20  Florida. 

Rang.  Dec.  Sparks's  Rangoon  Decisions,  British 
Burmah. 

/:.  P.     Rankin  on  Patents. 

Rap.  Fed.  Re}.  Dig.  Rapalje's  Federal  Reference 
Digest. 

Rap.  Jud.  Q.  B.  R.  Rapport's  Judiciaries  de  Quebec 
Cour  du   Banc  de  la  Reine. 

Rap.  Jud.  Q.  C.  S.  Rapport's  Judiciaries  de  Quebec 
Cour  Superieure. 

Rap.  Lar.     Rapalje  on  Larceny. 

Rap.  N.  Y.  Din.     Rapalje's  New  York  Digest. 

Rap.  £  L.  or  Rap.  £  Law.  or  Rapal.  £  L.  Rapalje  & 
Lawrence,   American    and   English   Cases. 

Rast.      Rastell's   Entries   and    Statutes. 

Ratt.  L.  C.  Rattigan's  Leading  Cases  on  Hindoo 
Law. 

Ratt.  R.  Li     Rattigan's  Roman  Law. 

Raiv.  or  Rawle.     Rawle's   Pennsylvania  Reports. 

Rawle  Const.     Rawle  on  the  Constitution. 

Ruwlc,  Cov.  or  Rawle  Cov\.  Rawle  on  Covenants 
for  Title. 

Rawle  Eq.    Rawle's  Equity  in  Pennsylvania. 

Raxole  Pen.  £  W.  (Rawle)  Penrose  &  Watts,  Penn- 
sylvania. 

Ray  Med.  Jur.  Ray's  Medical  Jurisprudence  of 
Insanity. 

Ray  Men.  Path.    Ray's  Mental  Pathology. 

Raym.  or  Raym.  Ld.  Lord  Raymond's  Reports, 
English  King's  Bench. 

Raym.  B.  of  Ex.     Raymond  on  Bill  of   Exceptions. 

Raym.  Ch.  Dig.     Raymond's   Chancery    Digest. 

Raym.  Ent.     Raymond's  Book  of  Entries. 

Raym.  Sir  T.  or  Raym.  T.  Sir  Thomas  Raymond's 
English   King's   Bench   Reports. 

:ond.     Raymond's    Reports,   vols.   81-89    Iowa. 

Rayn.     Rayner's  English  Tithe  Cases,   Exchequer. 

Re-af.     Re-affirmed. 

Re.  de  J.    Revue   de    Jurisprudence,   Montreal. 

Be.  de  L.  Revue  de  Jurisprudence  et  Legislation, 
Montreal. 

Real  Est.  Rec.     Real   Estate  Record,   New  York. 

Real  Pr.  Cas.     Real  Property  Cases   (English). 

Rec.  Records  ;— Recorder  :— American  Law  Rec- 
ord. 

Rec.  Com.     Record  Commission. 

Rec.  Dec.  Vaux's  Recorder's  Decisions,  Philadel- 
phia. 


Red.  Redfleld's  New  York  Surrogate  Reports  ;— 
Reddlngton,   Maine. 

Red.  Am.  R.  R.  Cas.  or  Red.  Cas.  R.  A*,  Red field's 
Leading  American  Railway  Cases. 

B  i.  Cas.  Wills.  Redfleld's  Leading  O^ses  on 
Wills. 

.'.  L.     Reddle's  Roman  Law. 

Red.  R.  R.  Cas.  Redfleld's  Leading  American  Rail- 
way  Cases. 

Red.  £  Big.  Cas.  B.  &  N.  Redfleld  ft  Blgelow's 
Leading  Cases  on  Bills  and   Notes. 

Redes.  PI.     Mitford's  Chancery  Pleading. 

Red}.     Redfleld's    Surrogate   Court   Reports,   N.   Y. 

Red}.  Am.  Railw.  Cas.  Redfleld's  American  Rail-, 
way   Cases. 

Red}.  Bailm.     Redfleld  on  Carriers  and  Bailments. 

Red}.  L.  Cas.  With.      Redfleld's    Leading   Cases    on 
Wills. 
.  Red}.  Pr.     Redfleld's  Practice,  New  York. 

7.'' .//.  R.  Cas.     Redfleld's  American  Railway  Cases. 

Red}.  Railw.    Redfleld  on  Railways. 

Red}.  Railw.  Cas.  Redfleld's  American  Railway 
Cases. 

Red}.  Sur.  or  Red}.  Surr.  (N.  7.).  Redfleld's  New 
York  Surrogate  Court  Reports. 

Red}.  Wills.      Redfleld's    Leading    Cases    on    Wills. 

Red}.  £  Big.  L.  Cas.  Redfleld  and  Bigelow's  Lead- 
ing Cases  on  Notes  and  Bills. 

Rrding.  or  Rcdington.  Redington's  Reports,  vols. 
31-35  Maine. 

Redm.     Redman  on   Arbitrations  and  Awards. 

Reed  Fraud  or  Reed  Lead.  Cas.  Reed's  Leading 
Cases  in  Law  of  Statute  of  Frauds. 

Reese.  Reporter,  vols.  5,  U  Heiskell's  Tennessee 
Reports. 

Reeve  Des.    Reeve  on  Descents. 

Reeve  Dom.  R.    Reeve    on    Domestic   Relations. 

Reeve,   Eng.   Law  or   Reeve   H.   E.  L.   or    i 
Hist.    Eng.    Law.    Reeve's    History   of    the    English 
Law. 

Reeve  Sh.  Reeve  on  the  Law  of  Shipping  and 
Navigation. 

Reg.    The  Daily  Register,  New  York  City. 

Reg.  App.    Registration  Appeals. 

Reg.  Brev.    Register  of  Writs. 

Reg.  Cas.    Registration   Cases. 

Reg.  Deb.  (Gales).  Register  of  Debates  in  Con- 
gress,  1789-91   (Gales's). 

Reg.  Deb.  (G.  £  S.).  Register  of  Debates  in  Con- 
gress, 1824-37  (Gales  and  Seaton's). 

Reg.  Gen.    Regulse   Generales. 

Reg.  Jud.    Registaem  Judiciale. 

Reg.  Lib.    Register  Book. 

Reg.  Ma).    Books  of  Regiam  Majestatem. 

Reg.  Om.  Brev.    Registrum  Omnium  Brevlum. 

Reg.  Orig.    Registrum  Originate. 

Reg.  PI.    Regula   Placitandi. 

Reg.  Writ.     Register  of  Writs. 

Reilly.    Reilly's   English   Arbitration   Cases. 

Rem.  Cr.  Tr.    Remarkable   Criminal  Trials. 

Rem.  Tr.  Cummins  &  Dunphy's  Remarkable  Tri- 
als. 

Rem.  Tr.  No.  Ch.  Benson's  Remarkable  Trials  and 
Notorious   Characters. 

Remy.  Remy's  "Reports,  vols.  115-151  Indiana; 
also  Indiana  Appellate  Court  Reports. 

Report;  —  Reports;  —  Reporter;  —  Repeal- 
ed;—Wallace's  The  Reporters  ;— Repertoire.  Coke's 
Reports,  English  King's  Bench. 

Rep.  (I,  S,  etc.).  Coke's  English  King's  Bench 
Reports. 

Rep.  Ass.  Y.  Clayton's  Reports  of  Assizc6  at 
Yorke. 

Rep.  Cas.  Eq.    Gilbert's  Chancery  Reports. 

Rep.  Cas.  Madr.  Reports  of  Cases,  Dewanny 
Adawlut,  Madras. 

Rep.  Cas.  Pr.  Reports  of  Cases  of  Practice 
(Cooke's). 

Rep.  Ch.    Reports   in    Chancery,   English. 

Rep.  Ch.  Pr.    Reports    ou    the    Chancery    Practice. 

Rep.  Com.  Cas.  Reports  .  of  Commercial  Cases, 
Bengal. 

Rep.  Const,  or  Rep.  Const.  Ct.  Reports  of  the  Con- 
stitutional Court,  South  Carolina  (Treadway,  Mill, 
or  Harper). 


ABBREVIATION 


70 


ABBREVIATION 


Rep.  Cr.  h.  Com.  Reports  of  Criminal  Law  Com- 
missioners. 

Rep.  de  Jur.    Repertoire    de    Jurisprudence,    Paris. 

Rep.  deJur.  Com.    Repertoire      de      Jurisprudence 

onimerciale,    Paris. 

Rep.  du  Not.    Repertoire   du    Notarise,    Paris. 

Rep.  Ec.  C.  C.  Repetitions  Eerites  sur  le  Code 
Civil. 

Rep.  Eq.    Guilbert's  Reports  in   Equity,  English. 

Rep.  in  Ch.    Reports    in   Chancery,    English. 

Rep.  (N.  Y.J.  The  Reporter,  Washington  and  New 
York. 

Rep.  Q.  A.  Report  tempore  Queen  Anne,  vol.  11 
Modern. 

Rep.  Sel.  Cos.  Ch.  or  Rep.  Sel.  Cas.  in  Ch.  Kel- 
ynge's  (W.)  Reports,  English  Chancery. 

Rep.  t.  Finch.  Reports  tempore  Finch,  English 
Chancery. 

Rep.  t.  Hard.  Lee's  Reports  tempore  Hardwicke, 
English  King's  Bench  Reports. 

Rep.  t.  Holt.  Reports  tempore  Holt,  English 
King's  Bench;— Reports  tempore  Holt  (English  Cas- 
es of   Settlement). 

Rep.  t.  O.  Br.  Carter's  English  Common  Pleas 
Reports  tempore  O.  Bridgman. 

Rep.  t.  Q.  A.  Reports  tempor^  Queen  Anne  (11 
Modern). 

Rep.  t.  Talb.  Reports  tempore  Talbot,  English 
Chancery. 

Rep.  (Wash.).  The  Reporter,  Washington  and 
New   York. 

Rep.  Yorke  Ass.  Clayton's  Reports  of  Assizes  at 
Yorke. 

Report  or  Reports.  Coke's  Reports,  English  King's 
Bench. 

Reptr.    The  Reporter,  Boston,  Mass. 

Res.  Cas.    Reserved  Cases. 

Ret.  Brev.    Retorna   Brevium. 

Rettie.  Rettie,  Crawford  &  Melville's  Scotch  Ses- 
sion Cases   (4th   Series). 

Rev.    Reversed.    Revised.    Revenue. 

Rev.  C.  &  C.  Rep.  Revenue,  Civil,  and  Criminal 
Reporter,  Bengal. 

Rev.  Cas.    Revenue  Cases. 

Rev.  Crit.    La  Revue  Critique,  Montreal. 

Rev.  Crit.  de  Leg.  Revue  Critique  de  Legislation, 
Paris. 

Rev.  de  Leg.    Revue   de  Legislation,   Montreal. 

Rev.  Dr.  Int.    Revue  de  Droit  International,  Paris. 

Rev.  Dr.  Leg.    Revue   de   Droit   Legislation,  Paris. 

Rev.  Laws.    Revised  Laws. 

Rev.  Leg.    La  Revue   Legale,  Sorel,   Quebec. 

Rev.  Ord.  N.  W.  T.  Revised  Ordinances,  North- 
west Territories  (Canada)  1888. 

Rev.  St.  or  Rev.  Stat.    Revised    Statutes. 

Reyn.    Reynolds's   Reports,  vols.  40-42  Mississippi. 

Reyn.  Steph.    Reynolds's    Stephens   on   Evidence. 

Rho.  L.    Rhodian  Law. 

Rice.    Rice's  Law   Reports,   South  Carolina. 

Rice  Ch.    Rice's   Equity    Reports,    South    Carolina. 

Rice.  Dig.  Pat.  Rice's  Digest  of  Patent  Office  De- 
cisions. 

Rice  Eq.    Rice's    South    Carolina    Equity    Reports. 

Rich.  Richardson's  South  Carolina  Law  Reports  ; 
—Richardson's   Reports,  vols.  2-5  New  Hampshire. 

Rich.  Cas.  Ch.  or  Rich.  Ch.  Richardson's  South 
Carolina   Equity   Reports. 

Rich.  Ct.  CI.  Richardson's  Court  of  Claims  Re- 
ports. 

Rich.  Eq.  Richardson's  South  Carolina  Equity 
Reports. 

Rich.  Eq.  Cas.  Richardson's  South  Carolina  Eq- 
uity Reports. 

Rich.  Law  (S.  C).  Richardson's  South  Carolina 
Law  Reports. 

Rich.  (N.  H.J.  Richardson's  Reports,  New  Hamp- 
shire Reports,  vols.  3-5. 

Rich.  N.  S.  Richardson's  Reports,  New  Series, 
South  Carolina. 

Rich.  P.  R.  C.  P.  Richardson's  Practical  Register, 
Common  Pleas. 

Rich.  Pr.  C.P.  Richardson's  Practice  Common 
Pleas. 

Rich.  Pr.  K.  B.  Richardson's  Practice  in  the 
King's  Bench. 


Rich.  Pr.  Reg.  Richardson's  Practical  Register. 
English   Common   Pleas. 

Rich,  cf  H.  or  Rich.  <£  Hook.  Richardson  &  Hook's 
Street  Railway  Decisions. 

Rich.  &  W.  Richardson  &  Woodbury's  Reports, 
vol.  2  New  Hampshire. 

Ridg.  Ridgeway's  Reports  tempore  Hardwicke, 
Chancery  and  King's  Bench. 

Ridg.  Ap.  or  Ridg.  App.  Ridgeway's  Irish  Appeal 
(or  Parliamentary)  Cases. 

Ridg.  Cas.  Ridgeway's  Reports  tempore  Hard- 
wicke, Chancery  and  King's  Bench. 

Ridg.  L.  if-  S.  Ridgeway,  Lapp  and  Schoales's  Re- 
ports (Irish  Term  Reports). 

Ridg.  P.  C.  or  Ridg.  Pari.  Ridgeway's  Irish  Appeal 
(or   Parliamentary)    Cases. 

Ridg.  Rep.  or  Ridg.  St.  Tr.  Ridgeway's  (Individu- 
al) Reports  of  State  Trials  in  Ireland. 

Ridg.  t.  Hard,  or  Ridg.  &  Hard.  Ridgeway's  Re- 
ports tempore  Hardwicke,  Chancery  and  King's 
Bench. 

Ridgew.    Ridgeway  (see  Ridg.). 

Ridley,  Civil  &  Ecc.  Law.  Ridley's  Civil  and  Ec- 
clesiastical Law. 

Ried.  Riedell's  Reports,  vols.  68,  69  New  Hamp- 
shire. 

Ril.  Riley's  South  Carolina  Law  Reports;— Ri- 
ley's  Reports,   vols.   37-42   West   Virginia. 

Ril.  Ch.  or  Ril.  Eq.  Riley's  South  Carolina  Chan- 
cery  Reports. 

Ril.  Harp.  Riley's  Edition  of  Harper's  South 
Carolina  Reports. 

Riley.  Riley's  South  Carolina  Chancery  Reports  ; 
—Riley's  South  Carolina  Law  Reports; — Riley's  Re- 
ports,  vols.   37-42  West  Virginia. 

Riley  Ch.  or  Riley  Eq.  Riley's  Chancery  Reports, 
South  Carolina. 

Finer.    Riner's  Reports,   vol.  2  Wyoming. 

Riv.  Ann.  Reg.    Rivington's    Annual    Register. 

Rob.  Robinson's  Virginia  Reports; — Robinson's 
Louisiana  Reports; — Robinson's  Reports,  vols.  2-9 
and  17-23  Colorado  Appeals; — Robertson's  New  York 
Superior  Court  Reports ; — Robinson's  English  Ec- 
clesiastical Reports; — Chr.  Robinson's  English  Ad- 
miralty Reports  ; — W.  Robinson's  English  Admiralty 
Reports ; — Robinson's  Reports,  English  House  of 
Lords  Scotch  Appeals; — Robertson's  Scotch  Appeal 
Cases; — Robinson's  Reports,  vol.  38  California; — 
Robinson's  Reports,  vols.  1-4  Louisiana  Annual  ; — 
Roberts's  Reports,  vols.  29-31  Louisiana  Annual; — 
Robards's  Reports,  vols.  12,  13  Missouri ; — Robards's 
Conscript  Cases,  Texas ; — Chr.  Robinson's  Upper 
Canada  Reports; — J.  L.  Robinson's  Upper  Canada 
Reports; — Robertson's  Reports,  vol.  1  Hawaii; — Rob- 
inson's Reports,  vol.  1  Nevada. 

Rob.  Adm.  Chr.  Robinson's  English  Admiralty 
Reports. 

Rob.  Adm.  Chr.  Robinson's  Reports,  English  Ad- 
miralty. 

Rob.  Adm.  d  Pr.    Roberts  on  Admiralty  and  Prize. 

Rob.  App.  Robinson's  Scotch  Appeals,  English 
House  of  Lords. 

Rob.  (Cal.).    Robinson's    Reports,    California. 

Rob.  Car.  V.  Robertson's  History  of  the  Reign  of 
the  Emperor  Charles  V. 

Rob.  Cas.    Robertson's  Scotch  Appeal  Cases. 

Rob.  Chr.  Chr.  Robinson's  English  Admiralty  Re- 
ports. 

Rob.  Chr.  Adm.  Chr.  Robinson's  Reports,  English 
Admiralty. 

Rob.  Consc.  Cas.  or  Rob.  Conscr.  Cas.  Robard's 
Conscript   Cases,    Texas. 

Rob.  Ecc.  Robertson's  Ecclesiastical  Reports/Eng- 
lish. 

Rob.  Ent.    Robinson's   Entries. 

Rob.  Eq.    Roberts's  Principles  of  Equity. 

Rob.  Fr.     Roberts  on  Frauds. 

Rob.  Fr.  Conv.  Roberts  on  Fraudulent  Convey- 
ances. 

Rob.  Gavelk.    Robinson  on  Gavelkind. 

Rob.  (Hawaiian).      Robinson's    Hawaiian    Reports. 

Rob.  Jr.  or  Rob.  Jun.  William  Robertson's  English 
Admiralty  Reports. 

Rob.  Jus.     Robinson's  Justice  of  the  Peace. 

Rob.  L.  &  W.  Roberts,  Learning  &  Wallis's  County 
Court  Reports. 


ABBREVIATION 


71 


ABBREVIATION 


Rob.  (La.).     Robinson's  Reports,  Louisiana. 
Rob.  (La.  Ann.).      Robinson's    Reports,    Louisiana 
Annual,    vols.   1-4. 

Rub.  Mar.  (N.  Y.).    Robertson  &  Jacob's  New  York 
Marine  Court  Reports. 
Hob.  (Mo.).     Uobard's  Reports,  Missouri. 
Rob.  (N.  Y.).     Robertson's  Reports,  New  York  City 
Superior  Court  Reports,  vole.   24-30. 

Rob.  (Nev.).    Robinson's  Reports,  Nevada  Report*, 
vol.  1. 
Rob.  Pr.     Robinson's  Practice. 

Rob.  S.  I.    Robertson's  Sandwich  Island  (Hawaiian) 
Reports 

Rob.  Sc.  App.     Robinson's  Scotch  Appeals,  English 
House  of  Lords. 

Rob.  Sr.  Ct.    Robertson's  New  York  Superior  Court 
Reports. 
Rob.  St.  Fr.     Roberts  on  the  Statute  of  Frauds. 
Rob.  U.  C.     Robinson's   Reports,   Upper  Canada, 
Rob.  (Ya.).     Robinson's  Reports,  Virginia. 
Rob.  Wills.     Roberts  on   Wills. 

Rob.  Wm.  or  Rob.  Wm.  Adm,     Wm.  Robinson's   Re- 
ports, English  Admiralty. 

Rob.  &  J.     Robard   and    Jackson's    Reports,    Texas 
Reports,  vols.  26-27. 

Robards.    Robards's  Reports,  vols.  12,  13  Missouri ; 
— Robards's    Texas   Conscript   Cases. 

Robards  &  Jackson.     Robards  &  Jackson's  Reports, 
vols.  26-27  Texas. 

Robb  or  Robb  Pat.  Cas.     Robb's  United  States  Pat- 
ent Cases. 

Robert.       Robertson's     Scotch     Appeals,     English 
House  of  Lords. 

Roberts.     Roberts'   Reports,   vols.    29-31   Louisiana 
Annual. 

'tson.  Robertson's  Scotch  Appeal  Cases ; — 
Robertson's  New  York  Superior  Court  Reports  ;— 
Robertson's  New  York  Marine  Court  Reports  ; — 
Robertson's  English  Ecclesiastical  Reports  ; — Robert- 
eon's  Hawaiian  Reports.  See,  also,  Rob. 
Robin.  App.  Robinson's  Scotch  Appeal  Cases. 
Robinson.  Chr.  Robinson's  English  Admiralty  Re- 
ports ;—  W.  Robinson's  English  Admiralty  Reports  ; 
—Robinson's  Virginia  Reports :— Robinson's  Louisi- 
ana Reports  ;— Robinson's  Scotch  Appeal  Cases  ;— 
Robinson's  Reports,  vol.  38  California ;— Chr.  Rob- 
inson's Reports,  Upper  Canada ; — J.  L.  Robinson's 
Reports,  Upper  Canada  ; — Robinson's  Reports,  Colo- 
rado ; — Robinson's  Reports,  vol.  1  Nevada. 

Robs.  Bankr.    Robson's    Bankrupt    Practice; — Rob- 
ertson's Handbook  of  Bankers'  Law. 
Robt.    Robert ;— Robertson. 

Robt.  (N.  Y.).      Robertson's     Reports,     New    York 
City  Superior  Court  Reports,  vols.  24-30. 
Roc.  Ins.     Roccus  on  Insurance. 
Roc.  Mar.  L.     Roccus  on  Maritime  Law. 
Roc.  &  H.  Bank.    Roche  and  Hazlitt  on  Bankruptcy. 
Roccus,  Ins.     Roccus  on   Insurance. 
Rockvo.  Sp.  d  Mex.  L.    Rockwell's  Spanish  and  Mex- 
ican Law. 

Rodm.  (Ky.).     Rodman's   Kentucky   Reports,   vols. 
78-82. 
Rodman.     Rodman's  Reports,  vols.  78-82  Kentucky. 
Roclk.  Man.    Roelker's    Manual    for    Notaries    and 
Bankers. 

Rog.  Ecc.  or  Rog.  Ecc.  Law.      Rogers's    Ecclesiasti- 
cal Law. 
Rog.  Rec.    Rogers's  City  Hall  Recorder,  New  York. 
Rogers.      Rogers's    Reports,    vols.    47-51    Louisiana 
Annual. 
Rol.      Rolle's   English  King's  Bench    Reports. 
Roll.     Roll  of  the  Term ;— Rolle's   English  King's 
Bench  Reports. 
Rolle.    Rolle's  Reports,  English  King's  Bench. 
Rolle  Abr.     Rolle's  Abridgment 
Rolle  R.    Rolle's  English  King's  Bench  Reports. 
Bolls  Ct.  Rep.     Rolls   Court   Reports,   English. 
Rom.    Romllly's  Notes  of  Cases,  English  Chancery. 
Rom.  Cr.  L.    Romilly's  Criminal  Law. 
Rom.  Law.     Mackeldy's   Handbook   of   the   Roman 
Law. 
Root.    Root's  Reports,  Connecticut. 
Rop.  H.  &  W.  or  Rop.  Husb.  £  Wife.     Roper  on  Hus- 
band  and  Wife. 
Rop.  Leg.    Roper  on  Legacies. 


Rop.  Prop.     Roper  on  Property. 

Rop.  Rev.     Roper  on  Revocation  of  Wills. 

Int.  St.  L.     Rorer  on  Inter-. 
Rorer  Jud.  Sales.     Rorer  on  Judicial  Sales. 
Rose.  Adm.     Roscoe's   Admiralty   Jarisdiuion   and 
Practice. 
Rose.  Bills.     Roscoe  on  Bills  and  Notes. 
Rose.  Civ.  Ev.     Roscoe  on  Civil  Evidence. 
Rose.  Cr.  Ev.  or  Rose.  Crim.  Ev.     Roscoe  on    Crim- 
inal Evidence. 
Rose.  Jur.     Roscoe's  Jurist,  London. 
Rose.  N.  P.     Roscoe  on  N* I s- i  Prius  Evidence. 
Rose.  PI.     Roscoe  on  Pleading. 
Rose.  R.  Ac.  or  Rose.  Real  Act.    Roscoe  on  Real  Ac- 
tions. 
Rose.  St.  D.     Roscoe  on  Stamp  Duties. 
Rose  or  Rose  B.  C.     Rose's   Reports,  English  Bank- 
ruptcy. 

Rose  Notes.     Rose's    Notes  on    United    States    Re- 
ports. 
Rose  W.  C.   Rose  Will  Case,  New  York. 
Ross,  Conv.      Ross's     Lectures     on     Conveyancing, 
etc.,  Scotland. 

Ross  Ldg.  Cas.     Ross's  Leading  Cases  on  Commer- 
cial Law. 

Ross  Lead.  Cas.      Ross's    Leading    Cases   on    Com- 
mercial  Law. 
Ross  V.  &  P.    Ross  on  Vendors  and  Purchasers. 
Rot.  Chart.     Rotulus  Chartarum. 
Rot.  Cur.  Reg.     Rotuli  Curiae  Regis. 
Rot.  Flor.      Rota   Florentine    (Reports   of    the    Su- 
preme Court,  or  Rota,  of  Florence). 
Rot.  Pari.     Rotulae  Parliamentarian 
Rouse  Cop.      Rouse's    Copyhold    Enfranchisement 
Manual. 

Rouse  Pr.  Mort.      Rouse    on    Precedents    of    Mort- 
gages. 

Rome.      Rowe's    Reports,    English    Parliamentary 
and  Military  Cases. 
Rowe  Rep.      Rowe's    Reports    (Irish). 
Roxoe  Sci.  Jur.     Rowe's   Scintilla  Juris. 
Rowell.     Rowell's  Contested  Election  Cases,   U.   S. 
House    of    Representatives,    1889-1S91 ;— Rowell's    Re- 
ports, vols.  45-52  Vermont 
Roy.  Dig.     Royall's   Digest  Virginia    Report*. 
Royle  Stock  Sli.       Royle     on     the     Law     of     Stock 
Shares,  etc. 
Rt.  Law  Rcpts.     Rent  Law   Reports,   India. 
Rub.    Rubric. 

Rucker.     Rucker's   Reports,   vols.  43-46   West  Vir- 
ginia. 

Ruff,  or  Ruff.  &  H.     Ruffln  &  Hawks's  North  Caro- 
lina Reports. 

Ruffh.  or  Ruffh.  St.      Ruffhead's    Statutes-at-Large 
of  England. 
Rules  Sup.  Ct.    Rules  of  the  Supreme  Court 
Runn.     Runnell's  Reports,  Iowa. 
Runn.   Stat.      Runnington's     Statutes-at-Large    of 
England. 
Runiiells.     Runnells's  Reports,  vols.  38,  56  Iowa. 
Rus.     Russell. 

Rush.    Rushworth's  Historical  Collection. 
Russ.     Russell's  Reports,  English  Chancery. 
Russ.  Arb.     Russell  on  Arbitrators. 
Russ.  Cr.  or  Russ.  Crimes.     Russell  on  Crimes  and 
Misdemeanors. 

Russ.  Elect.  Cas.      Russell's    Election    Cases,    Nova 
Scotia  ; — Russell's  Election  Cases,   Massachu- 

Russ.  Eq.  Rep.      Russell's   Equity    Decisions,    Nova 
Scotia. 
Russ.  Merc.  Ag.     Russell   on   Mercantile  Agency. 
Russ.  N.  Sc.     Russell's  Equity  Ca  .   Scotia. 

Russ.  t.  Eld.     Russell's   English   Chancery   Reports 
tempore  Elden. 

Russ.  it  Ches.    Russell  and  Chesley's  Reports,  Nova 
Scotia. 

Russ.  d  Ches.  Eq.    Russell     and    Chesley's     Equity 
Reports.  Nova  Scntla. 

Russ.  &  Geld.     Russell  and  Geldert's  Reports,  Nova 
Scotia. 

Russ.  if-  M.     Russell   and  Mylne's  Reports,   English 
Chancery. 

£  R.  or  Russ.   <f   Ry.      Russell    and    Ryan'B 
Crown  Cases  Reserved,  English. 


ABBREVIATION 


72 


ABBREVIATION 


Rutg.  Cos.  or  Rutger  Cas.  Rutger-Waddington 
Case,  New  York  City,  1784  (First  of  New  York  Re- 
I 

i  ..tli.  Inst,  or  Ruth.  Nat.  L.    Rutherford's  Institutes 
of  Natural   Law. 
Ry.  Cas.     Reports  of  Railway  Cases. 
Ry.  F.     Rynier's   Fcedera,   Conventiones,  etc 
Ry.Med.Jur.     Ryan's  Medical  Jurisprudence. 

Ry.  &  Can.  Cas.  Railway  and  Canal  Cases,  Eng- 
land. 

Ry.  &  Can.  Traf.  Ca.  Railway  and  Canal  Traffic 
Cases. 

Ry.  &  Corp.  Law  Jour.  Railway  and  Corporation 
Law  Journal. 

Ry.  &  M.  Ryan  &  Moody's  Nisi  Prius  Reports, 
English. 

Ry.  cf-  M.  C.  C.  Ryan  and  Moody's  Crown  Cases 
Reserved,  English. 

Ry.  &  M.  N.  P.  Ryan  and  Moody's  Nisi  Prius  Re- 
ports,  English. 

Rymer.    Rymer's  Fcedera. 

S.  Shaw,  Dunlop  &  Bell's  Scotch  Court  of  Ses- 
sion Reports  (1st  Series)  ;— Shaw's  Scotch  House  of 
Lords  Appeal  Cases  ;— Southeastern  Reporter  (prop- 
erly cited  S.  E.) ;— Southwestern  Reporter  (properly 
cited  S.  W.);— New  York  Supplement;— Supreme 
Court  Reporter; — Section. 

S.  A.  L.  R.    South  Australian  Law   Reports. 

S.  App.    Shaw's  Appeal  Cases,  Scotland. 

S.  Aust.  L.  R.    South  Australian   Law  Reports. 

S.  B.    Upper  Bench,  or  Supreme  Bench. 

S.  C.  South  Carolina ;— South  Carolina  Reports, 
New  Series  ;— Same  Case  ;— Superior  Court;— Su- 
preme Court;— Sessions  Cases; — Samuel  Carter  (see 
Orlando  Bridgman)  ;— Senatus-Consulti. 

S.  C.  A.  Supreme  and  Exchequer  Courts  Act,  Can- 
ada. 

S.  C.  Bar  Assn.    South    Carolina    Bar    Association. 

S.  C.  C.  Select  Chancery  Cases  (part  3  of  Cases 
in    Chancery)  ;— Small    Cause    Court,    India. 

S.  C.  Dig.  Cassell's  Supreme  Court  Digest,  Can- 
ada. 

S.  C.  E.    Select  Cases  relating  to  Evidence. 

S.C.R.  South  Carolina  Reports,  New  Series; — 
Harper's  South  Carolina  Reports ;— Supreme  Court 
Reports; — Supreme  Court  Rules; — Supreme  Court 
of   Canada   Reports. 

S.  C.  Rep.    Supreme    Court    Reports. 

S.  Car.  South  Carolina; — South  Carolina  Reports, 
New   Series. 

S.  Ct.    Supreme    Court   Reporter. 

S.  D.    South    Dakota;— South  Dakota    Reports. 

S.  D.  A.    Sudder  Dewanny  Adawlut  Reports,  India. 

S.  Dak.    South    Dakota    Reports. 

S.  D.  &  B.  Shaw,  Dunlop  &  Bell's  Scotch  Court  of 
Session  Reports  (1st  Series). 

S.  D.  &  B.  Sup.  Shaw,  Dunlop  &  Bell's  Supple- 
ment, containing  House  of  Lords  Decisions. 

S.  E.  or  S.  E.  R.  or  S.  E.  Rep.  Southeastern  Re- 
porter. 

S.  F.  A.  Sudder  Foujdaree  Adawlut  Reports,  In- 
dia. 

S.  J.    Solicitors'    Journal. 

S.  Just.    Shaw's  Justiciary  Cases,   Scotch. 

S.  L.  Session  Law; — Solicitor  at  Law; — Statute 
Law. 

S.  L.  C.    Smith's  Leading  Cases. 

5.  L.  C.  App.    Stuart's  Lower  Canada  Appeal  Cases. 

S.  L.  D.  '  Sudder  Dewanny  Adawlut  Reports,  India. 

S.  L.  Ev.    Select   Laws    relating    to   Evidence. 

S.  L.  J.    Scottish  Law  Journal,  Edinburgh. 

S.  L.  R.  Scottish  Law  Reporter,  Edinburgh ; — 
Southern   Law   Review,   St.  Louis. 

S.  P.    Same  Point; — Same  Principle. 

S.  R.    State  Reporter,  New  York. 

S.  S.    Synopsis  Series  of  U.  S.  Treasury  Decisions. 

S.  S.  C.  Sandford's  New  York  City  Superior  Court 
Reports. 

S.  T.    State   Trials. 

S.  T.  D.    Synopsis  Treasurer's  Decisions. 

S.  Teind.  or  S.  Teinds.  Shaw's  Teinds  Cases,  Scotch 
Courts. 

S.  Y.  A.  R.  Stuart's  Vice- Admiralty  Reports,  Que- 
bec. 

S.  W.    Southwestern;— Southwestern    Reporter. 


S.  W.  L.  J.  Southwestern  Law  Journal,  Nashville, 
Tenn. 

S.  W.  Rep.  Southwestern  Reporter  (commonly 
cited  S.  W.). 

S.  &  B.  Smith  and  Batty's  Reports,  Irish  King's 
Bench. 

S.  &  C.  Saunders  &  Cole's  English  Bail  Court  Re- 
ports ;— Swan  &   Critchfield,   Revised  Statutes,  Ohio. 

S.  &  D.  Shaw,  Dunlop  &  Bell's  Scotch  Court  of 
Session  Reports  (1st  series). 

S.  &  G.    Smale  &  Giffard,  English. 

S.  &  L.  Schoales  and  Lefroy's  Reports,  Irish 
Chancery. 

S.  <£•  M.  Shaw  &  Maclean's  Appeal  Cases,  House 
of  Lords;— Smedes  &  Marshall's  Mississippi  Reports. 

S.  &  M'L.  Shaw  and  Maclean's  Appeal  Cases,  Eng- 
lish House  of  Lords. 

S.  &  Mar.  Smedes  and  Marshall's  Reports,  Mis- 
sissippi  Reports,  vols.  9-22. 

S.  &  M.  Ch.  or  S.  &  Mar.  Ch.  Smedes  and  Marshall's 
Chancery   Reports,  Mississippi. 

S.  &  R.  Sergeant  and  Rawle's  Reports,  Pennsyl- 
vania. 

S.  &  S.  Sausse  &  Scully's  Irish  Rolls  Court  Re- 
ports ; — Simons  &  Stuart,  English  Vice-Chancellors' 
Reports;— Swan  &  Sayler,  Revised  Statutes  of  Ohio. 

S.  &  Sc.  Sausse  and  Scully's  Reports,  Irish  Chan- 
cery. 

S.  &  Sm.  Searle  and  Smith's  Reports,  English 
Probate  and  Divorce  Cases. 

S.  &  T.  Swabey  and  Tristram's  Reports,  English 
Probate  and  Divorce  Cases. 

Sal.    Salinger's   Reports,   vols.    90-117   Iowa. 

Salk.    Salkeld's    Reports,    English    Courts. 

Salm.  Abr.  or  Salm.  St.  R.  Salmon's  Abridgment  of 
State   Trials. 

San  Fr.  L.  J.  San  Francisco  Law  Journal,  Cali- 
fornia. 

San.  V.    Sanders  on  Uses  and  Trusts. 

Sand.  Sandford's  New  York  Superior  Court  Re- 
ports. 

Sand.  Ch.  Sandford's  New  York  Chancery  Re- 
ports. 

Sand.  Eg.    Sands's  Suit  In  Equity. 

Sand.  Essays.     Sanders's   Essays. 

Sand.  Inst.    Sandars's  Institutes   of  Justinian. 

Sand.  I.  Rep.  Sandwich  Island  (Hawaiian)  Re- 
ports. 

Sand.  Jus.  or  Sandars,  Just.  Inst.  Sandars's  Edi- 
tion of  Justinian's  Institutes. 

Sand.  U.  &  T.    Sanders  on  Uses   and   Trusts. 

Sandf.  Sandford's  New  York  Superior  Court  Re- 
ports. 

Sandf.  Ch.  Sandford's  Chancery  Reports,  New 
York. 

Sandf.  Ent.    Sandford  on  Entails. 

Sandl.  St.  Pap.    Sandler's   State  Papers. 

Sanf.  (Ala.).    Sanford's   Reports,   Alabama. 

Sant.  de  Assec.    Santerna  de  Assecuratlonibus. 

Sar.  Ch.  Sen.    Saratoga   Chancery   Sentinel. 

Sau.  &  Sc.  Sausse  &  Scully's  Irish  Rolls  Court 
Reports. 

Sauls.    Saulsbury's    Reports,    vols.    5-6    Delaware. 

Saund.    Saunders's  Reports,  English  King's  Bench. 

Saund.  Bank.  Pr.    Saunders's     Bankrupt     Practice. 

Saund.  Neg.    Saunders  on  the  Law  of  Negligence. 

Saund.  PI.    Saunders  on  Civil  Pleading. 

Saund.  PI.  &  Ev.  Saunders's  Pleading  and  Evi- 
dence. 

Saund.  &  G.  Saunders  and  Cole's  Reports,  Eng- 
lish  Bail   Court. 

Saund.  &  Mac.  Saunders  &  Macrae's  English 
County  Court  Cases. 

Sausse  &  Sc.  Sausse  &  Scully's  Irish  Rolls  Court 
Reports. 

Sav.    Savile's   English   Common   Pleas  Reports. 

Sav.  Dr.  Rom.    Savigny,  Droit  Romain. 

Sav.  His.  Rom.  L.  Savigny's  History  of  the  Ro- 
man  Law. 

Sav.  Obi.    Savigny  on   Obligations. 

Sav.  Priv.    Trial    of   the   Savannah   Privateers. 

Sav.  Priv.  Int.  L.  Savigny  on  Private  Internation- 
al Law. 

Sav.  Syst.  Savigny,  System  des  Heutigen  Rom- 
ischen  Richts. 


ABBREVIATION 


73 


ABBREVIATION 


Sato,  or  Savoy.    Sawyer's     United     States     Circuit 
Court   Reports. 

Sax.  or  Saxt.  or  Saxt.  Ch.    Saxton's    Chancery     Re- 
ports, New  Jersey  Equity  Reports,  vol.  1. 

Sayer's  Reports,  English  King's  Bench. 
Say.  Costs.    Sayer  on  Costs. 
Say.  Pr.    Sayle's  Practicf  in  Texas. 
Sayer.     Sayer's  English  King's  Bench  Reports. 
8c.     Scilicet     (that     Is    to    say); — Scott's    Reports, 
English    Common     Pleas  ;— Scotch;— Scammon's    Re- 
ports,   vols.    2-5    Illinois ;— Liber    Rubeus    Scaccarll, 
Scottish. 

tr.    Scottish   Jurist,    Edinburgh. 
£>V.  L.  J.     Scottish   Law  Journal,   Glasgow. 
Sc.  L.  if.    Scottish    Law    Magazine,    Edinburgh. 
Sc.  L.  R.    Scottish    Law    Reporter,    Edinburgh. 
Sc.  N.  R.    Scoit's  New   Reports. 
Sc.  Sess.  Cas.    Scotch   Court  of  Session   Cases. 
Sc.  <&  Div.  App.    Scotch  and  Divorce  Appeals  (Law 
Reports). 
.Scac.  or  Scaccaria  Curia.     Court  of  Exchequer. 
Scum.    Scammon's   Reports,  vols.   2-5  Illinois. 
Scan.  Mag.    Scandal um   Magnatum. 
Boh.  &  Lcf.     Schoales  and   Lefroy's    Reports,   Irish 
Chancery. 

Scli.  &  Lef.     Schoales   &    Lefroy's    Irish    Chancery 
Reports. 

Schalck  or  Schalk  (Jam.).    Schalck's  Jamaica    Re- 
ports. 
Scheiff.  Pr.     Scheiffer's  Practice. 
Seller.     Scherer,  New  York  Miscellaneous  Reports. 
Schm.  C.  L.  or  Schm.  Civil  Law.      Schmidt's    Civil 
Law  of   Spain   and   Mexico. 
Schm.  L.  J.    Schmidt's  Law  Journal,  New  Orleans. 
Schomberg,  Mar.  Laws  Rhodes.     Schomberg,  Trea- 
tise on  the  Maritime  Laws  of  Rhodes. 

Schoul.  Bailm.    Schouler   on    Bailments,    including 
Carriers. 

1 1.  Dom.  Rel.    Schouler  on  Domestic  Relations. 
Schoul.  Per.  Pr.  or  Shouler,  Pers.  Prop.    Schouler 
on  Personal  Property. 
Schouler,  Wills.    Schouler  on  Wills. 
Schuyl.  Leg.  Rec.     Schuylkill  Legal  Record,  Potts- 
ville.   Pa. 
Bet.  fa.    Scire  facias. 

Sei.  fa.  ad  dis.  deb.     Scire  facias  ad   disprobandum 
debitum. 
Scil.     Scilicet,  That  is  to  say. 
Bco.     Scott's    Reports,    English   Common    Pleas. 
Sco.  Costa.     Scott  on  Costs. 
Sco.  Int.     Scott's  Intestate  Laws. 
Sco.  Nat.     Scott  on  Naturalization  of  Aliens. 
Sco.  N.  R.     Scott's  New  Reports,   English  Common 
Pleas. 

Sco.  &  J.  Tel.     Scott  and  Jarnigan  on  the  Law  of 
Telegraphs. 
Scot.     Scotland  ;— Scottish. 
Scot.  Jur.     Scottish  Jurist,  Edinburgh. 
Scot.  L.  J.     Scottish    Law  Journal,   Glasgow. 
Scot.  L.  M.     Scottish  Law  Magazine,  Edinburgh. 
Scot.  L.  R.     Scottish   Law   Reporter,   Edinburgh  ;— 
Scottish  Law  Review,  Glasgow. 
Scot  L.  T.     Scot  Law  Times,   Edinburgh. 
Scott.     Scott's  English   Common  Pleas   Reports  ;— 
Scott's  New  York  Civil  Procedure. 

Scott  J.     Reporter,    English    Common    Bench    Re- 
ports. 

Scott  N.  R.    Scott's  New  Reports,  English  Common 
Pleas. 
Scr.  L.  T.     Scranton   Law  Times,  Pennsylvania. 
Scrat.  Life  As.     Scratchley  on   Life  Assurance. 
Scrib.  Dow.     Scribner   on   Dower. 
Scrtv.  Cop.    Scrlven  on  Copyholds. 
Seab.  V.  &  P.     Seaborne  on  Vendors  and  Purchas- 
ers. 

Scarle  &  Sm.    Scarle  and  Smith's  Reports,  English 
Probate  and  Divorce. 
Scat.  F.  Ch.     Seaton's    Forms   In    Chancery. 
Seb.  T.  M.  or  Seb.  Trade-Marks.      Sebastian     on 
Trademarks. 
Sec.      Section. 

Sec.  leg.    Secundum  legum  (according  to  law). 
Sec.  reg.     Secundum  rcgulam   (according  to   rule). 
Seed.  pt.  Edw.  III.     Part  3  of  the  Year  Books. 
Seed.  pt.  H.  VI.    Part  8  of  the  Year  Books. 


Sedg.  L.Cas.      Sedgwick's    Leading    Cat        on    the 
Measure  of  Damages;— Sedgwick  's  L  »s  on 

Property. 

St  dj.  Jicos.  D.     Sedgwick  on  the  Measure  ol 
ages. 

Sedg.  St.  L.  or  Scdg.  St.  <£  Const.  Law.    Sedgwick 
on   Statutory  and  Constitutional  Law. 

t.  or  Scign.  Rep.     Seigniorial  Quebec 

Sel.  Cas.     Select  Cases  In   Chan 
Sel.  Cas.  A.  S.  Law.     Select   Cases   in   Anglo-Saxon 
Law. 

■:s.  Ch.     Select  Cases  in  Chancery  (part  3  of 
Cases  in   Chancery). 

Bel.  Cas.  D.  A.      Select     Cases,     Sudder     Dewanny 
Adawlut,   India. 
Sel.  Cas.  Ev.    Select  Cases  in  Evident 

OS.  N .  F.     Select  Cases,  Newfoundland  Courts. 
Bel.  Cas.  N.  W.  P.     Selected  Cases,  Northwest  Prov- 
inces,   India. 
Sel.  Cas.  N.  Y.     Yates's    Select    Cases,    New    York. 
Sel.  Cas.  t.  Br.      Cooper's     Select  tempore 

Brougham. 

Bel.  Cas.  t.  King.  Select  Cases  in  Chancery  tem- 
pore King. 

Sel.  Cas.  t.  Nap.  (Drury's)  Select  Cases  tempore 
Napier,  Irish  Chancery. 

Sel.  Cas.  with  Opin.      Select    Cases    with    Opinions, 
by  a   Solicitor. 
Sel.  Ch.  Cas.     Select   Cases   In   Chancery,    English. 
Sel.  Dec.  Bomb.      Selected    Decisions,    Sudder    De- 
wanny Adawlut,  Bombay. 

Sel.  Dec.  Mad.  or  Sel.  Dec.  Madr.     Selected  Decrees, 
Suder  Udawlut,   Madras. 
Sel.  L.  Cas.     Select  Law  Cases. 
Sel.  Pr.     Sellon's  Practice. 

Seld.  or  Seld.  (N.  Y.).  Selden's  Reports,  New  York 
Ct.  of  Appeals  Reports,  vols.  5-10. 

Seld.  Notes.      Selden's   Notes   of   Cases,    New    York 
Court  of  Appeals. 
Seld.  Tit.  Hon.     Selden's  Titles  of  Honor. 
Selden.      Selden's    Reports,    New    York    Court    of 
Appeals. 
Self.  Tr.     Selfridge's  Trial. 

Sell.  Pr.    Sellon's  Practice  In  the  King's  Bench. 
Selw.N.P.     Selwin's  Nisi  Prius. 
Selw.  &  Barn.      The    First    Part    of    Barnewall    & 
Alderson's  English  King's   Bench   Reports. 
Serg.  Attach.     Sergeant   on   Attachment    Law,    Pa. 
Serg.  Const.  L.      Sergeant    on    Constitutional    Law. 
Serg.  Land  L.  or  Scro.  Land  Laws  Pa.     Sergeant  on 
the  Land  Laws  of  Pennsylvania. 

Serg.  Mech.  L.  L.  Sergeant  on  Mechanics'  Lien 
Law. 

Serg.  &  Lowb.  Rep.  English  Common  Law  Re- 
ports, American  reprints  edited  by  Sergeant  &  Low- 
ber. 

Serg.  &  R.  or  Serg.  &  Rawle.  Sergeant  &  Rawle's 
Pennsylvania  Reports. 

Sess.  Cas.  Sessions  Cases  (English  King's  Bench 
Reports) ;— Scotch  Court  of  Session  Cases. 

Sess.  Cas.  Sc.  Session  Cases,  Scotch  Court  of  Ses- 
sion. 

Sess.  Pap.  C.  C.  C.  Session  Papers,  Central  Crim- 
inal Court. 

1'ap.O.B.     Session  Papers,  Old  B 
Set.  Cas.     English   Settlement  and   Removal  Cases 
(Burrow's  Settlement   Cases). 

Set.  Dec.  or  Set.  F.  Dec.     Seton's    Forms   of    Equity 
Decrees. 
Sett.  Cas.     Settlement  Cases. 

Sett.  <jf  Rem.  Cas.     English    Settlement   4    Removal 
Cases   (Burrow's   Settlement  Ca- 
Sev.     Sevestre's   Reports,  Calcutta. 
Sev.  H.  C.    Sevestre's  High  Court  Reports,  Bengal. 
Sev.  S.  D.  A.     Sevestre's  Sudder  Dewanny  Adawlut 
Reports,   Bengal. 
Sewell,  Sheriffs.    Sewell  on  the  Law  of  Sheriffs. 
Sh.       Shower's     English     Parliamentary     Ca 
Shower's  English  King's  ;— Shepley's 

Reports,  vols.  13-18  and  21-30  Maine  ;— Shaw's  Scotch 
Appeal  Cases ;— Shaw's,  etc.,  Decisions  in  the  Scotch 
Court  of  Session  (1st  Series)  ;— Shaw's  Scotch  Jus- 
ticiary Cases  ;— Shaw's  Scotch  Teind  Court  Reports  ; 
— G.  B.  Shaw's  Reports,  vols.  10,  11  Vermont  ;— 
W.    G.   Shaw'8  Reports,   vols.  30-35  Vermont ;— Shir- 


ABBREVIATION 


74 


ABBREVIATION 


ley's  Reports,  vols.  49-55  New  Hampshire  ;— Sheldon's 
Buffalo,  New  York,  Superior  Court  Reports; — Shep- 
herd's Reports,  Alabama  ;— Shipp's  Reports,  vols.  66, 
67  North  Carolina ;— Shand's  Reports,  vols.  11-44 
South  Carolina ;— Shadforth's  Reserved  Judgments, 
Victoria. 

Sh.  App.  Shaw's  Appeal  Cases,  English  House  of 
Lords,    Appeals   from    Scotland. 

Sh.  Crim.  Cas.  Shaw's  Criminal  Cases  (Justiciary 
Court). 

Sh.  Dig.     Shaw's  Digest  of  Decisions,  Scotland. 

Sh.  Jus.     Shaw's    Justiciary    Cases,    Scotland. 

Sh.  W.  &  C.  Shaw,  Wilson  and  Courtnay's  Re- 
ports, English  House  of  Lords,  Scotch  Appeals  (Wil- 
son and  Shaw's  Reports). 

Sh.  &  Dunl.  Shaw  and  Dunlop's  Reports,  First 
Series,   Scotch  Court  of  Session. 

Sh.  i£  Macl.  Shaw  and  Maclean's  Appeal  Cases, 
English  House  of  Lords. 

Shad.     Shadford's  Victoria  Reports. 

Shan.     Shannon's  Tennessee  Cases. 

Shand.     Shand's  Reports,  South  Carolina. 

Shand  Pr.     Shand's  Practice,  Court  of  Session. 

Sharp.  Sharpstein's  Digest  of  Life  and  Accident 
Insurance    Cases. 

Shars.  Bl.  Comm.  Sharswood's  Blackstone's  Com- 
mentaries. 

Sliars.  Tab.fia.  Sharswood's  Table  of  Cases,  Con- 
necticut. 

Sharsw.  Bla.  Com.  Sharswood's  Blackstone's  Com- 
mentaries. 

Sharsw.  Comm.  Law.  Sharswood  on  Commercial 
Law. 

Sharsw.  Law  Lee.  *  Sharswood's  Law  Lectures. 

Sharsw.  Leg.  Eth.     Sharswood's  Legal  Ethics. 

Sharsw.  &  B.  R.  P.  Cos.  Sharswood  &  Budd  Real 
Property  Cases. 

Shaw.  Shaw's  Reports,  First  Series,  Scotch  Court 
of  Session. 

Shaw.  Shaw's  Scotch  Appeal  Cases ;— Shaw's  etc., 
Decisions  in  the  Scotch  Court  of  Session  (1st  Se- 
ries) ; — Shaw's  Scotch  Justiciary  Cases  ; — Shaw's 
Scotch  Teind  Court  Reports  ;— G.  B.  Shaw's  Reports, 
vols.  10,  11  Vermont ;— W.  G.  Shaw's  Reports,  vols. 
30-35  Vermont. 

Shaw  App.  Shaw's  Appeal  Cases,  English  House 
of  Lords,  Appeals  from  Scotland. 

Shaw,  Dec.  Shaw's,  etc.,  Decisions  in  the  Scotch 
Court  of  Session  (1st  Series). 

Shaw  Dig.  Shaw's  Digest  of  Decisions,  Scotch 
Courts. 

Shaw,  Dunl.  &  B.  Shaw,  Dunlop  &  Bell's  (1st  Se- 
ries)  Scotch  Session  Cases. 

Shaw  (G.B.).  G.  B.  Shaw's  Reports,  vols.  10,  11 
Vermont. 

Shaw,  H.  L.  Shaw's  Scotch  Appeal  Cases,  House 
of  Lords. 

Shaw  Jus.    Shaw's  (John)  Scotch  Justiciary  Cases. 

Shaw  T.  Cas.    Shaw's  Scotch  Teind  Court  Reports. 

Shaw  (Yt.).     Shaw's    Reports,   Vermont. 

Shaw  (W.  G.).  W.  G.  Shaw's  Reports,  30-35  Ver- 
mont. 

Shaw,  W.  &  C.  Shaw,  Wilson  and  Courtnay's  Re- 
ports, English  House  of  Lords,  Scotch  Appeals  (Wil- 
son and  Shaw's  Reports). 

Shaw  &  Dunl.  Shaw  and  Dunlop's  Reports,  First 
Series,  Scotch  Court  of  Session. 

Shaw  &  Macl.  Shaw  and  Maclean's  Scotch  Ap- 
peal Cases,  English  House  of  Lords. 

Shearm.  &  Red.  Neg.  Shearman  and  Redfleld  on 
the   Law  of  Negligence. 

Shel.    Sheldon    (see  Sheld.). 

Shel.  Co.    Shelley's  Case  in  vol.  1  Coke's  Reports. 

Sheld.  or  Sheldon.  Sheldon's  Reports,  Superior 
Court  of  Buffalo,  New  York. 

Shelf.  Copy.    Shelford    on    Copyholds. 

Shelf.  J.  S.  Co.  Shelford  on  Joint  Stock  Compa- 
nies. 

Shelf.  Lun.    Shelford  on  Lunacy. 

Shelf.  M.  &  D.  or  Shelf.  Mar.  &  Div.  Shelford  on 
Marriage  and  Divorce. 

Shelf.  Mort.    Shelford  on  Mortmain. 

Shelf.  Railw.    Shelford  on   Railways. 

Shelf.  R.  Pr.    Shelford's    Real     Property    Statutes. 

Shep.  Shepley's  Reports,  vols.  13-18  and  21-30 
Maine  ; — Shepherd's  Reports,   Alabama. 


Shep.  Abr.    Sheppard's  Abridgment. 

Shcp.  Sel.  Cas.    Shepherd's  Select  Cases,  Alabama. 

Shep.  Touch.    Sheppard's   Touchstone. 

Shepl.    Shepley's  Reports,   Maine. 

Shepp.  Abr.    Sheppard's    Abridgment. 

Shepp.  Act.    Sheppard's    Action    upon    the    Case. 

Shepp.  Cas.     Sheppard's*  Cases    on    Slander. 

Shepp.  Touch.    Sheppard's    Touchstone. 

Sher.  Ct.  Rep.  Sheriff  Court  Reports,  Scotland;— 
Sheriff  Court  Reporter. 

Shiel.    Shiel's    Reports,   Cape    Colony. 

Ship.  Gaz.    Shipping  Gazette,  London. 

Shipp.    Shipp's  Reports,  North  Carolina. 

Shirl.    Shirley's  Reports,  New  Hampshire. 

Shirl.  L.  C.    Shirley's   Leading    Crown    Cases. 

Shortt  Copy.    Shortt  on  Copyrights. 

Sliow.  Shower's  English  Parliamentary  Cases;— 
Shower's  English  King's  Bench  Reports. 

Show.  K.  B.  Shower's  English  King's  Bench  Re- 
ports. 

Show.  P.  C.  Shower's  English  Parliamentary 
Cases. 

Sick.  Sickels's  Reports,  N.  Y.  Court  of  Appeals 
Reports. 

Sick.  Min.  Dec.  or  Sick.  Min.  Laws  &  D.  Sickels's 
Mining  Laws  and  Decisions. 

Sick.  Op.  Sickels's  Opinions  of  the  New  York  At- 
torneys-General. 

Sid.     Siderfin's  Reports,    English  King's  Bench. 

Sid.  Gov.    Sidney  on  Government. 

Sieye.    Sieye  Traite  sur  l'Adultere. 

Silv.  Silvernail's  Unreported  Cases,  New  York 
Court  of  Appeals ; — Unreported  Cases,  New  York 
Supreme  Court ; — Criminal  Reports,  New  York. 

Silv.  Cit.    Silvernail's  New    York  Citations. 

Silvern.  N.  Y.  Silvernail's  New  York  Court  of 
Appeals. 

Silvern.  N.  Y.  Sup.  Ct.  Silvernail's  New  York  Su- 
preme Court. 

Sim.  Simons's  English  Vice-Chancery  Reports ; 
— Simmons's  Reports,   vols.  99,  100  Wisconsin. 

Sim.  Dig.  Simond's  Digest  of  Patent  Office  Deci- 
sions. 

Sim.  Int.    Simon  on  the  Law  of  Interpleader. 

Sim.  N.  S.  Simons's  English  Vice-Chancery  Re- 
ports, New  Series. 

Sim.  Pat.  L.    Simond's  Manual  of  Patent  Law. 

Sim.  Pr.  Ct.  M.  Simmon's  Practice  of  Courts  Mar- 
tial. 

Sim.  R.  A.  Simon's  Law  relating  to  Railway  Ac- 
cidents. 

Sim.  &  C.  Simmons  &  Conover's  Reports,  vols. 
99,  100  Wisconsin. 

Sim.  &  S.  or  Sim.  &  Stu.  Simon  and  Stuart's  Eng- 
lish Chancery  Reports. 

Sinclair.  Sinclair's  Manuscript  Decisions,  Scotch 
Session   Cases. 

Sir  T.  J.    Sir   Thomas   Jones's   Reports. 

Six  Circ.  or  Six  Circ.  Cas.  Cases  on  the  Six  Cir- 
cuits, Irish  N.  P. 

Skene  or  Skene  Verb.  Sign.  Skene's  De  Verborum 
Significatione.  , 

Skill.  Pol.  Rep.  or  Skillm.  Skillman's  New  York 
Police  Reports. 

Skin.    Skinner's    English    King's    Bench    Reports. 

Skink.  or  Skinker.    Skinker's    Reports,    Missouri. 

Skinn.    Skinner's   Reports,  English  King's   Bench. 

Slade.    Slade   Reports,  Vermont. 

Sloan  Leg.  Reg.      Sloan's  Legal  Register,  New  York. 

Sm.    Smith's  Reports,    English    King's   Bench. 

Sm.  Ac.  or  Sm.  Act.    Smith's   Actions   at  Law. 

Sm.  C.  C.  M.  Smith's  Circuit  Courts-Martial  Re- 
ports, Maine. 

Sm.  Ch.  Pr.    Smith's  Chancery  Practice. 

Sm.  Cond.  Ala.  Smith's  Condensed  Alabama  Re- 
ports. 

Sm.  Cont.    Smith  on    Contracts. 

Sm.  E.  D.  or  Sm.  (E.  D.).  E.  D.  Smith's  Reports, 
New  York  Common  Pleas. 

Sm.  Eng.    Smith's  Reports,  English  King's  Bench. 

Sm.  Eq.  Smith's  (J.  W.)  Manual  of  Equity;— 
Smith's  Principles  of  Equity. 

Sm.  Ex.  Int.    Smith  on    Executory   Interest. 

Sm.  For.  Med.    Smith's    Forensic    Medicine, 

Sm.  Forms.    Smith's  Forms  of  Procedure. 

Sm.  (Ind.J.    Smith's  Reports,  Indiana. 


ABBREVIATION 


75 


ABU  iON 


Sm.  (K.  B.).  Smith's  Reports,  English  King's 
Bench. 

Sm.  L.  C.    Smith's    Leading   Cases. 

Sm.  L.  C.  Comm.  L.  or  Sm.  L.  Cas.  Com.  L.  Smith's 
Leading  Cases  on  Commercial  Law. 

Sm.  L.  J.     Smith's   Law  Journal. 

Sm.  Law  of  Prop.  Smith  on  Real  and  Personal 
Property. 

Sm.  Lead.  Cas.    Smith's    Leading    Cases. 

Sm.  L.  d  T.     Smith   on   Landlord   and   Tenant. 

Sm.  Mast.  d  S.     Smith    on    Master    and    Servant. 

Sm.  (Me.).    Smith's    Reports,    Maine. 

Sm.  Merc.  L.    Smith's    Mercantile    Law. 

Sm.  (N.  IT.).    Smith's    Reports,     New    Hampshire. 

Sm.  (N.  Y.).  Smith's  Reports,  New  York  Court 
of  Appeals  .Reports,   vols.   15-27. 

Sm.  or  Sm.  (P.P.)  (Pa.).  Smith's  Reports,  Penn- 
sylvania  State   Reports,   vols.   51-S1. 

Sm.  Pat.    Smith   on   Patents. 

Sm.  Prob.  L.     Smith's    Probate    Law   and   Practice. 

Sm.  Real  &  P.  Pr.  Smith  on  Real  and  Personal 
Property. 

Sm.  Rcc.    Smith's  Law  of  Receivers. 

Sm.  Rcpar.    Smith's  Law  of  Reparation. 

Sm.  Stat.  L.  Smith's  Statutory  and  Constitutional 
Law. 

Sin.  (Wis.).    Smith's  Reports,  Wisconsin. 

Sm.  &  B.  R.  R.  Cas.  or  Sm.  d  B.  Railw.  Cas. 
Smith  and  Bates's  Railway  Cases,  American  Courts. 

Sm.  d  Bat.  or  Smi.  d  Bat.  Smith  &  Batty's  Irish 
King's  Bench  Reports. 

Sm.  d  G.  Smale  &  Glffard's  English  Vice-Chan- 
cellors' Reports;— Smith  &  Guthrie's  Reports,  vols. 
81-101   Missouri  Appeals. 

Sm.  d  M.  Smedes  &  Marshall's  Mississippi  Re- 
ports. 

Sm.  d  M.  Ch.  Smedes  and  Marshall's  Chancery 
Reports,   Mississippi. 

Sma.  d  Gift.  Smale  &  Giffard's  English  Vice-Chan- 
cellors' Reports. 

Smale  &  Gift.  Smale  and  Giffard's  Reports,  Eng- 
lish Chancery. 

Smcd.  &  M.  Smedes  &  Marshall's  Mississippi  Re- 
ports. 

Smcd.  &  M.  Ch.  Smedes  &  Marshall's  Mississippi 
Chancery    Reports. 

Smedes  d  M.  (Miss.).  Smedes  &  Marshall's  Mis- 
sissippi Reports. 

Sm.  d  8.  Dig.  Vict.  Smith  &  Skinner's  Digest  of 
Victorian    Reports. 

Sm.  d  Sod.  L.  &  T.  Smith  and  Soden  on  Landlord 
and  Tenant. 

Swedes  d  M.  Smedes  and  Marshall's  Reports,  Mis- 
sissippi  Reports. 

Smedes  d  M.  Ch.  Smedes  and  Marshall's  Chan- 
cery Reports,  Mississippi. 

Smith.  See  Sm.  Smith's  New  Hampshire  Re- 
ports; Smith's  Reports,  vols.  2-4  Dakota;— J.  P. 
Smith's  English  King's  Bench  Reports;— Smith,  in 
continuation  of  Fox  &  Smith  ;— Smith,  English  Reg- 
istration ;— P.  F.  Smith's  Pennsylvania  State  Re- 
ports;—E.  P.  Smith's  Reports,  vols.  15-27  New  York 
Court  of  Appeals  ;— E.  D.  Smith's  New  York  Com- 
mon Pleas  Reports;— E.  H.  Smith's  Reports,  vols. 
147-162  New  York  Court  of  Appeals;— Smith's  Re- 
ports, vols.  54-62  California;— Smith's  Indiana  Re- 
ports ;— Smith's  Reports,  vols.  61-64  Maine  ;— Smith's 
Reports,  vols.  1-11  Wisconsin;— E.  B.  Smith's  Re- 
ports, vols.  21-47  Illinois  Appeals  ;— Smith,  Report- 
er vols.  7,  12  Heiskell's  Tennessee  Reports;— Smith's 
Reports,  vols.  81-101  Missouri  Appeals. 

Smith,  Act.    Smith's  Actions  at  Law. 

Smith  C.  P.  E.  D.  Smith's  Common  Pleas  Re- 
ports,  New  York. 

Smith,  Ch.  Pr.    Smith's    Chancery    Practice. 

Smith,  Cont.    Smith  on  Contracts. 

Smith  de  Rep.  An  pi.  Smith  (Sir  Thomas),  De  Re- 
publica  Anglica  [The  Commonwealth  of  England 
and  the  Manner  of  Government  Thereof.    1621.] 

Smith,  Diet.  Antiq.  Smith's  Dictionary  of  Greek 
and  Roman   Antiquities. 

Smith  E.  H.  Smith's  (E.  H.)  Reports,  vols.  147- 
162  New  York  Court  of  Appeals. 

Smith  E.  P.  or  Smith  E.  P.  Ct.  App.  E.  P.  Smith's 
Reports,  vols.  15-27  New  York  Court  of  Appeals. 

Smith  Ind.    Smith's   Indiana  Reports. 


Smith  J.  P.    J.    P.    Smith's    English   King's    Ben  h 
Reports. 

Smith  L.  C.    Smith's  Leading  Cases. 

,  Laws  Pa.    Smith's    Laws    of    Penn  :ylvanls- 

Smith,  Lead.  Cas.    Smith's    Leading    C 

h  Me.    Smith's  Reports,  vols.  61-64  Maine. 

Smith,  Merc.  Law.     Smith   on   Mercantile    Law. 

Smith  N.  H.    Smith's    New    Hampshir-. 

Smith   N.  Y.     Smith's   Reports,   vols.   15-27   and  147- 
162  New  York  Court  of  Appeals. 

Smith  P.  F.  or  Smith  P.  F.  Pa.     P.  F.  Smith's  Penn- 
sylvania State  Reports. 

Smith,  Wealth  Nat.    Smith,    Inquiry   Into   the    Na- 
ture and  Causes  of  the  Wealth  of  NaMons. 

Smith  Wis.     Smith's  Reports,  vol  .    1-11   Wisconsin. 

Smith  d  B.    Smith    &    Batty's    Irish    King's    Bench 
Reports  ;— Smith  &  Bates's  American  Railway  I 

h  d  B.  R.  R.C.    Smith     &     Bates's     American 
Railway  Cases. 

d  G.    Smith   &    Guthrie's    Missouri    Appeals 
Reports. 

It.    Notes  of  cases  In   Smoult's  Collection  of 
Orders,    Calcutta. 

Smy.  or  Smt/the.    Smythe's     Irish    Common     Pleas 
Reports. 

Sn.  or  Sneed.     Sneed's  Tennessee  Reports; — Sneed's 
Kentucky  Decisions. 

Sneed  Dec.  or  Snccd  Ky.    Sneed's    Kentucky    Deci- 
sions. 

Snell  Eq.    Snell's  Principles  of  Equity. 

Snell.Eq.    Snell's   Principles    in    Equity. 

Snow.     Snow's   Reports,  Utah. 

Snow  Cas.  Int.  L.    Snow's    Cases    on    International 
Law. 

Snyder  Rel.  Corp.    Snyder    on    Religious    Corpora- 
tions. 

So.  Ans.  L.  R.  or  So.  Austr.  L.  R.    South    Australian 
Law  Reports. 

So.  Car.    South     Carolina ;— South     Carolina     Re- 
ports. 

So.  Car.  Const.    South  Carolina  Constitutional   Re- 
ports  (by  Treadway,  by  Mill,  or  by  Harper). 

So.  Car.  L.  J.    South    Carolina    Law    Journal,    Co- 
lumbia. 

So.  East.  Rep.     Southeastern   Reporter. 

So.  L.  J.    Southern     Law    Journal    and     Reporter, 
Nashville,    Tenn. 

So.  L.  R.    Southern   Law  Review,   Nashville,   Tenn. 

So.  L.  R.  N.  S.    Southern  Law  Review,  New  Series, 
St.   Louis,  Mo. 

So.  L.  T.    Southern    Law   Times. 

So.  Rep.    Southern      Reporter      (commonly      cited 
South,  or  So.). 

So.  West.  L.  J.    Southwestern   Law   Journal,  Nash- 
ville,   Tenn. 

So.  West.  Rep.    Southwestern    Reporter   (commonly 
cited  S.   W.). 

Soc.  Econ.    Social  Economist. 

Sol.  Gen.    Solicitor    General. 

Sol.  J.     Solicitor's  Journal,   London. 

Sol.  J.  d  R.    Solicitors'    Law    Journal   and   Report- 
er, London. 

Sown.  Gavelkind  or  Somner.    Somner     on      Gavel- 
kind. 

Son.  Aus.  L.  R.     South  Australian    Law   Reports. 

South.     Southard's    Reports,   New  Jersey  Law. 

South.    Southern    Reporter. 

South  Car.    South  Carolina. 

South.  L.  J.  it-  Rep.     Southern     Law     Journal     and 
Reporter,  Nashville,  Tenn. 

South.  L.  Rev.    Southern    Law    Review,    Nashville, 
Trim. 

South.  L.  Rev.  N.  S.    Southern    Law    Review,    New 
St.    Louis.   Mo. 

Southard.    Southard's    New   Jersey   Reports. 

Southw.  L.  J.    Southwestern  Law  Journal  and   Re- 
porter. 

Sp.    Spink's  English  Ecclesiastical  and  Admiralty 
Reports;— Spears's   South   Carolina   Law    Reports. 
Special  Appeal. 

sp.  Ch.  or  Sp.  Eq.    Spears'a  South  Carolina  Equity 
Reports. 

Sp.  Laics.    Spirit  of   Laws,  by  Montesquieu. 

Sp.  Pr.  Cas.    Spink's  Prize   Cases. 

Sp.  T.     Special    Term. 

Sp.  d  Sel.  Cas.    Special   and   Selected  Law  Cases. 


ABBREVIATION 


76 


ABBREVIATION 


Sparks.    Sparks's   Reports,   British   Burmah. 
Spaulding.    Spaulding's  Reports,  vols.  71-80  Maine. 

or.    Spear's  Reports,  South  Carolina. 
Spear  Ch.  or  Spear  Eq.    Spear's  Chancery   Reports, 
South  Carolina. 
Spear  Extr.    Spear's  Law  of  Extradition. 
Spears  Eq.  or  Speers  Eq.    Spears's   (or   Speers's) 
South    Carolina  Equity   Reports. 
Spel.    Spelman's  Glossary. 
Spel.  Feud  or  Spel.  Feuds.    Spelman  on  Feuds. 
Spel.  Rep.    Spelman's    Reports,    Manuscript,    Eng- 
lish King's  Bench. 
Spelman.    Spelman,  Glossarium  Archalologicum. 
Spenc.    Spencer's  Reports,  New  Jersey  Law. 
Spenc.  (Minn.).    Spencer's   Reports,   Minnesota. 
Spence,  Ch.    Spence's  Equitable  Jurisdiction  of  the 
Court   of   Chancery. 

Spence,  Eq.  Jur.    Spence's    Equitable    Jurisdiction 
of  the  Court  of  Chancery. 
Spence  Or.  L.    Spence's  Origin  of    Laws. 
Spencer.    Spencer's    New    Jersey    Reports;— Spen- 
cer's Reports,  vols.  10-20  Minnesota. 
Spens  Sel.  Cas.    Spens's    Select   Cases,    Bombay. 
Spink.    Spink's    Reports,    English    Admiralty    and 
Ecclesiastical. 
Spink  P.  C.    Spink's  Prize  Cases,   English. 
Spinks.    Spinks's    English   Ecclesiastical   and   Ad- 
miralty  Reports. 
Spinks,  P.  C.    Spinks's  English  Prize  Cases. 
Spoon,  or  Spooner.    Spooner's    Reports,    Wisconsin, 
vols.  12-15. 

Spott.    Spottiswoode's    Reports,    Scotch    Court    of 
Session. 

Spott.  C.  L.  Rep.    Spottiswoode's  Common  Law  Re- 
ports. 

Spott.  Eq.  Rep.    Spottiswoode's  English  Equity  Re- 
ports. 
Spott.  St.    Spottiswoode's    Styles,    Scotland. 
Spottis.    Sir    R.     Spottiswoode's    Reports,     Scotch 
Court   of   Session. 

Spottis.  C.  L.  &  Eq.  Rep.    Common   Law   and    Equi- 
ty Reports,  published  by  Spottiswoode. 

Spr.  or  Sprague.    Sprague's  United   States  District 
Court  (Admiralty)  Decisions. 

St.    State;— Story's    United    States    Circuit    Court 
Reports  (see  Sto.)  ;— Stair's  Scotch  Court  of  Session 
Reports  ;— Stuart's    (Milne  &   Peddie)  Scotch  Session 
Cases;— Statutes  ;— Statutes   at    Large. 
St.  Abm.    Statham's  Abridgment. 
St.  Armand.    St.  Armand  on  the  Legislative  Pow- 
er of  England. 
St.  at  Large.    South  Carolina  Session  Laws. 
St.  Cas.    Stillingfleet's   Ecclesiastical    Cases,    Eng- 
lish. 
St.  Ch.  Cas.    Star  Chamber  Cases. 
St.  Clem.    St.    Clement's    Church    Case,    Philadel- 
phia. 

St.  Ecc.  Cas.  or  St.  Eccl.  Cas.    Stillingfleet's     Eccle- 
siastical Cases,  English. 
St.  hist.    Stair's  Institutes  of  the  Law  of  Scotland. 
St.  Mark  or  St.  Marks.    St.  Mark's  Church  Case, 
Philadelphia. 
St.  Mario.    Statute  of  Marlbridge. 
St.  Mert.    Statute  of  Merton. 
St.  M.  &  P.    Stuart,  Milne  &  Peddie,  Scotch. 
■  St.  P.    State  Papers. 
St.  Rep.    State    Reports;— State    Reporter. 
St.  Tr.  or  St.  Tri.    State  Trials. 
St.  Westm.    Statute  of  "Westminster. 
Stafford.     Stafford's   Reports,   vols.   69-71   Vermont. 
Stair.    Stair's  Reports,  Scotch  Court  of  Session. 
Stair  Inst.    Stair's  Institutes  of  the  Laws  of  Scot- 
land. 

Stair  Pr.    Stair's  Principles  of  the  Laws  of  Scot- 
land. 

Stant.  or  Stanton.    Stanton's    Reports,    Ohio,    vols. 
11-13. 
Star.    Starkie's  English  Nisi  Prius  Reports. 
Star  Ch.  Ca.  or  Star  Ch.  Cas.    Star  Chamber  Cases. 
Stark.  Cr.  L.    Starkie  on  Criminal  Law. 
Stark.  Cr.  PI.     Starkie    on    Criminal    Pleading. 
Stark.  Ev.    Starkie  on  Evidence. 
Stark.  Jury  Tr.    Starkie  on  Trial  by   Jury. 
Stark.  N.  P.    Starkie's  Reports,  English  Nisi  Prius. 
Stark.  Slan.    Starkie  on  Slander  and  Libel. 
Starkie,  Ev.    Starkie  on  Evidence. 


Stat.    Statute. 

Stat,  at  L.  or  Stat,  at  L.  U.  S.    Statutes  at  Large. 
Stat.  Glo.    Statute  of  Gloucester. 
Stot.  Marl.    Statute  of  Marlbridge. 
Stat.  Mcr.    Statute  of  Merton. 
Stat.  Westm.    Statute   of   Westminster. 
Stat.  Winch.    Statute  of  Winchester. 
State  Tr.    State   Trials. 

Stath.  Abr.    Statham's   Abridgment  of  the   Law. 
Staundef.    Staundeforde,  Exposition  of  the  King's 
Prerogative. 
Staundef.  P.  C.    Staundeforde,  Les  Plees  del  Coron. 
Staunf.  P.  C.  &  Pr.    Staunforde's      Pleas      of      the 
Crown  and  Prerogative. 

Stearns  R.  A.  or  Stearns,  Real  Act.     Stearns  on  Real 
Actions. 

Steph.  Com.  or  Steph.  Comm.    Stephen's      Commen- 
taries on  English  Law. 

Steph.  Const.     Stephens  on  the  English   Constitu- 
tion. 
Steph.  Cr.  L.     Stephen  on  Criminal   Law. 
Steph.  Crim.  Dig.     Stephen's  Digest  of    the  Crim- 
inal Law. 

Steph.  Dig.    Stephen's  Digest,  New  Brunswick  Re- 
ports. 
Steph.  Elect.     Stephens  on  Elections. 
Steph.  Ev.     Stephen's  Digest  of  Evidence. 
Steph.  Led.      Stephen,     Lectures    on    History    of 
France. 
Steph.  N.  P.     Stephens's  Nisi  Prius. 
StepTt.  PI.    Stephen  on  Pleading. 
Stev.  Dig.     Stevens's  New  Brunswick  Digest. 
Stev.  &  Ben.  Av.    Stevens  and  Benecke  on  Average 
and  Insurance. 

Stevens  &  G.     Stevens  &   Graham's   Reports,    vols. 
98-139  Georgia.  ' 

Stew.       Stewart's     Alabama     Reports ;— Stewart's 
New  Jersey  Equity  Reports ;— Stewart's  (R.  W.)  Re- 
ports, vols.  1-10  South  Dakota. 
Stew.  (Ala.).     Stewart's  Reports,  Alabama. 
Stew.  Adm.       Stewart's     Vice-Admiralty     Reports, 
Nova  Scotia. 

Steiy.  Eq.     Stewart's  Reports,  vols.  28-45  New  Jer- 
sey Equity. 

Stew.   (N.  J.).      Stewart's    Reports,    New    Jersey 
Equity  Reports,  vqls.  28-45. 

Stew.  N.  Sc.     Stewart's    Admiralty    Reports,    Nova 
Scotia. 

Stew.  V.  A.      Stewart's    Vice-Admiralty    Reports, 
Nova  Scotia. 

Stew.  &  P.  or  Stew.  &  Port.       Stewart     &     Porter's 
Alabama  Reports. 
Stiles.     Stiles's  Reports,  Iowa. 

Still.  Eccl.  Cas.  or  Stillingfl.  Ecc.    Stillingfleet's  Ec- 
clesiastical Cases. 

Stim.  Gloss,  or  Stim.  Law  Gloss.      Stimson's     Law 
Glossary. 
Stimson.     Stimson's  Law  Glossary. 
Stiness.     Stiness's   Reports,   vols.    20-34   Rhode   Is- 
land. 

Sto.  or  Sto.  C.  C.      Story's    United    States     Circuit 
Court  Reports. 

Sto.  &  H.  Cr.  Ab.     Storer   and   Heard   on   Criminal 
Abortion. 

Stocfc.     Stockton's  New  Jersey  Equity  Reports  ;— 
Stockton,    New    Brunswick    (same    as    Berton's    Re- 
ports). 
Stock.  (Md.).    Stockett's  Reports,  Maryland. 
Stock  Non  Com.    Stock  on  the  Law   of  Non   Com- 
potes Mentis. 
Stockett.    Stockett's  Reports,  vols.  27-79  Maryland. 
Stockt.  Ch.    Stockton's  New   Jersey  Chancery  Re- 
ports. 
Stokes  L.  of  A.     Stokes  on  Liens  of  Attorneys. 
Stone  B.  B.  S.    Stone  on  Benefit  Building  Societies. 
Storer  &  H.  Cr.  Ab.     Storer    and    Heard    on    Crim- 
inal  Abortion. 

Story.     Story's   United   States    Circuit   Court    Re- 
ports.    See,  also,   Sto. 
Story  Ag.    Story  on  Agency. 
Story  Bailm.     Story  on  Bailments. 
Story  Bills.     Story  on  Bills. 
Story  Comm.    Story's  Commentaries. 
Story  Confl.  L.  or  Story,  Confl.  Laws.     Story  on  Con- 
flict of  Laws. 


ABBREVIATION 


77 


ABI:I1KVIA'1T0N 


Story  Const.     Story  on  the  Constitution. 
Story  Cont.  or  Story  Contr.     Story  on  Contract*. 
Story  Eq.  Jur.     Story's   Ec;uity   Jurisprudence. 
Story  Eq.  PI.     Story's  Equity   Pleading. 

I  or  Story  L.  U.  S.     Story's    Laws  of   the 
United   States. 
Story  Part,  or  Story  Partn.     Story  on  Partn 
Story  From.   X.  or  Story  Prom.  Notes.     Story   on 

ory  Notes. 
Story  Sales.     Story  on  Sales  of  Personal  Property. 
/,  U.  S.  Laws.      Story's    Laws    of    the    United 
States. 
Sir.    Strange's  English  King's  Bench  Reports. 
8tr.Ca8.Ev.OTStr.8vo.     Strange's    Cases  of   Evi- 
dence ("Octavo  Strange"). 
Str.  U.  L.     Strange's  Hindoo  Laws. 
Str.  N.  C.     Strange's  Notes  of  Cases,  Madras. 
Stra.      Strange;— Strange's  Ri  ports,  Bng 
Straao.  de  Mer.     Straacha  de  .Mercatura,    Navlbus 
Assecuratiouibus. 

Strah.Dom.      Strahan's    Translation    of    Domat's 
Civil  Law. 
Stratum,     Strahan's  Reports,  vol.  19  Oregon. 
Stran.     Strange. 

Strange.     Strange's  Reports,   English  Courts. 
Strange,  Madras.    Strange's    Notes    of    Cases,   Ma- 
dias. 

Stratton.     Stratton's   Reports,   vols.   12-14,   19   Ore- 
gon. 
Stringf.     Strlngfellow's  Reports,   Missouri. 
St  r,ny  fellow.      Stringfellow's     Reports,     vols.     9-11 
Missouri. 
st rub.     Strobhart's  Law   Reports,  South  Carolina. 
Strob.  Ch.  or  Strob.  Eq.       Strobhart's     Equity     Re- 
ports, South  Carolina. 

Struve.     Struve's  Reports,  vol.  3  Washington  Ter- 
ritory. 

Stuart,    Milne  and  Peddle's  Reports,   Scotch 
Court  of  Session. 

Stu.Adm.     Stuart's  Lower  Canada  Vice-Admiralty 
Reports. 

ip.      Stuart's    Appeal    Cases    (Lower    Canada 
i  Bench  Reports). 

St  a.  K.  B.  or  Stu.  L.  C.    Stuart's      Reports,      Lower 
Canada  King's  Bench. 

Stu.  Mil.  &  Ped.     Stuart,    Milne  &   Peddie's    Scotch 
Court  of  Session  Reports. 

.'/.  &  P.     Stuart,   Milne  and   Peddie's   Reports, 
Scotch  Court  of  Session. 

Stu.  V.  A.     Stuart's  Vice-Admiralty  Reports,  Low- 
er Canada. 

Stuart.     Stuart's  Lower  Canada  King's  Bench  Re- 
ports ;— Stuart's   Lower  Canada  Vice-Admiralty   Re- 
ports ;— Stuart,    Milne    &    Peddie's    Scotch    Court    of 
m   Reports. 
Stuart  L.  C.  K.  B.     Stuart's   Lower  Canada   King's 
Bench   Reports. 

Stuart  L.  C.  V.  A.      Stuart's    Lower    Canada    Vice- 
Admiralty  Reports. 

Stud.  Hist.      Studies    In    History,    Economics    and 
Public   Law. 
Sty.     Style's  English  King's  Bench  Reports. 
Sty.  Pr.  Keg.     Style's   Practical   Register. 
Slid.  Dew.  Ad.  or  Sud.  Dew.  Adul.    Sudder   Dewanny 
Adawlut  Reports,  India. 

Sud.  Dew.  Rep.     Sudder   Dewanny   Reports,  N.    W. 
Provinces,   India. 
Bugd.  Est.     Sugden  on  the  Law  of  Estates. 
Sugd.  Pow.  or  Sugd.  Powers.    Sugden  on  Powers. 
Sugd.  Pr.     Sugden  on  the  Law  of  Property. 
Sugd.  Pr.  St.     Sugden  on   Property   Statutes. 
Sugd.  Vend,  or  Sugd.  Vend.  &  P.     Sugden    on    Ven- 
dors  and    Purchasers. 

Bull.  Land  Tit.     Sullivan  on  Land  Titles  in  Massa- 
chusetts. 

Bull.  Lect.      Sullivan's    Lectures    on    Constitution 
and  Laws  of  England. 

Summa,  the  summary  of  a  law  ;— Sumner's 
United   States   Circuit  Court   Reports. 
Sum.Vcs.    Sumner's    1  ey's    Reports. 

Bumm.  Dec.     Summary   Dei     Ions,  Bengal. 
Summerfield,  S.    Summerfleld'a  (S.)  Reports,  vol.  21 
Nevada. 

Sumn.     Sumner's    Reports,    U.    S.    Circuit    Court, 
1st  Circuit. 


Sumn.  Ves.     Sumner'.-   I  -ts. 

Sup.      Superseded  ;—Su;. ■:•;••!  .   -Supreme;— S 

Sup.  Ct.  or  Sup.  Ct.  Rep.      Supreme   Court     '.eportei 
of  Decisions  of  United  Stat'  s  Supreme  Oi 
Super.     Superior   Court ;— Superior  Co 
Supp.    Supplement;— New     York    Supjj. 
ports. 

Supp.  Ves.  Jun.  or  Supp.  Ves.  Jr.    Suppleu. 
Vesey,  Jr.'s  Reports. 
Supr.     Supreme  ;— Superior  Court  Reports. 
Supr.  Ct.  l;  I   &■  Supreme  Court  Report- 

er.   All  the  Federal  Courts. 
Surr.     Surrogate. 

Susq.  L.  C.     Susquehanna  Leading  Chronicle. 
Suth.     Sutherland's    Reports,    Calcutta. 
Suth.  Bengal.     Sutherland's    High    Court    Reports, 
Bengal. 

Ham.     Sutherland  on  the  Law   of  Damages. 
Suth.  F.  B.  R.      Sutherland's    Full    Bench    Rulings, 
Bengal. 

Suth.  P.  C.  A.  or  Suth.  P.  C.  J.  Sutherland's  Privy 
Council  Judgments  or  Appeals. 

Suth.  W.  R.  or  Suth.  W.  Rep.  Sutherland's  Weekly 
Reporter,  Calcutta. 

Sw.      Swanston's     English     Chancery     Rei 
Swabey's    English     Admiralty     Reports ;— Sw 
New  York  Superior  Court  Reports  ;— Swan's  Ti 
see   Reports  ;— Swinton's  Scotch   Justiciary   Ca 
Swan  ;— Sweet ;— Swift 

Swab,  or  Swab.  Adm.  or  Swab.  Admr.  Swabey's 
Admiralty   Reports,    English. 

Swab,  d  Tr.  or  Swal.  &  Trist.  Swabey  and  Trist- 
ram's Reports,  English  Probate  and  Divorce. 

Swan.  Swan's  Tennessee  Reports ;— Swanston's 
English  Chancery  Reports. 

Swan'il.     Swan's   Revised   Statutes  of  Ohio.   1841. 
Swan'oJi.     Swau's   Revised   Statutes  of  Ohio,   lv'l. 
Swan.  Ch.     Swanston's  English  Chancery   Reports. 
Swan  Ecc.  Cas.     Swan  on   the  Jurisdiction  of   Ec- 
clesiastical Courts. 
Sioan  Just.     Swan's    Justice. 
Swan  PI.  £  Pr.     Swan's  Pleading  and  Practice. 
Swan  Pr.     Swan's  Pr; 
Swan  Tr.     Swan's   Treatise,   Ohio. 
Swans.     Swanston's  Reports,  English  Chancery. 
Swans,  or  Swanst.      Swanston's    English    Chancery 
Reports. 

Sween.  or  Sweeney.  Sweeney's  New  York  Superior 
Court  Reports,  vols.  31,  32. 

Sweet.  Sweet's  Law  Dictionary ;— Sweet  on  the 
Limited  Liability  Act ;— Sweet's  Marriage  Settlement 
Cases  ;— Sweet's  Precedents  in  Conveyancing  ;— Sweet 
on  Wills. 

Sweet  M.  Sett.  Cas.  Sweet's  Marriage  Settlement 
Cases. 

Sweet  Pr.  Conv.      Sweet's    Precedents    in    Convey- 
ancing. 
Swift  Dig.     Swift's  Digest,  Connecticut 
Swift  Sys.     Swift's   System   of    the   Laws   of    Con- 
necticut. 

Swin.  or  Stem.  Jus.  Cas.  Swinton's  Scotch  Justici- 
ary Cases. 

Swin.  Reg.  App.    Swinton's  Scotch  Registration  Ap- 
peal   Cases. 
Swinb.  Des.      Swinburne  on   the   Law  of   Descents. 
Swinb.  Mar.     Swinburne  on  Marriage. 
Swinb.  Spo.     Swinburne  on  Spousals. 
Swinb.  Wills.     Swinburne   on    Wills. 
Swint.     Swinton's  Justiciary  Cases,   Scotland. 
Syd.  App.    Sydney  on  Appi 
Byrne.     Syme's  Justiciary  Cases.  Scotland. 
Syn.  Ser.     Synopsis   Series  of   the  U.   S.  Treasury 

>ns. 
T.    Territory;— Tappan's  Ohio  Reports;— Temp*  >rc  ; 
—Title  ;— Trinity  Term. 

T.  V..  Mon.  or  T.  B.  Monr.    T.  B.  Monroe's  Kentucky 
Reports. 
T.  1>.  .1  M.     Tracewell.    Bowers   A    Mitchell,    United 

Comptroller's  Decisions,  1S98. 
f.  E.  R.  Tempore  Regis  Edwardl. 
T.  Joins  or  mes'a     English     King's, 

Bench  and  Common  Pleas  Reports. 
T.  L.     Tonnes  de  la  L<  y. 
T.  L.  R.     Times  Law  Reports. 


ABBREVIATION 


78 


ABBREVIATION 


T.  R.  Term  Reports,  Durnford  &  East ;— Teste 
Rege  ;— Dayton  Term   Reports. 

T.  R.  E.  or  T.  E.  R.     Tempore   Regis   Edwardi. 

T.R.  (N.  Y.).    Caines's  (Term)  Reports,  New  York. 

T.  R.  N.  8.  Term  Reports,  New  Series  (East's  Re- 
ports). 

T.  Raym.  T.  Raymond's  Reports,  English  King's 
Bench. 

T.  T.     Trinity  Term. 

T.  T.  R.    Tarl  Town  Reports,  New  South  Wales. 

T.  V.  P.  Charlt.  T.  U.  P.  Charlton's  Reports,  Geor- 
gia. 

T.  &  C.  Thompson  and  Cook's  Reports,  New  York 
Supreme  Court. 

T.  &  G.  Tyrwhitt  and  Granger's  Reports,  English 
Exchequer. 

T.  &  M.    Temple  &  Mew's  Crown  Cases,  English. 

T.  &  P.  Turner  and  Phillips's  Reports,  English 
Chancery. 

T.  <£  R.  Turner  and  Russell's  Reports,  English 
Chancery. 

Tait.  Tait's  Manuscript  Decisions,  Scotch  Session 
Cases. 

Tait  Ev.     Tait  on  Evidence. 

Tal.  or  Tall.  Cases  tempore  Talbot,  English  Chan- 
cery. 

Tarn.     Tamlyn's  English  Rolls  Court  Reports. 

Taml.     Tamlyn's  Reports,   English  Chancery. 

Taml.  Ev.     Tamlyn  on  Evidence. 

Taml.  T.  Y.    Tamlyn  on  Term  of  Years. 

Tan.  or  Tan.  Dec.  or  Taney.  Taney's  Decisions,  by 
Campbell,    United  States  Circuit  Court,  4th  Circuit. 

Tann.  or  Tanner.  Tanner's  Reports,  vols.  8-14  In- 
diana ; — Tanner's    Reports,   vols.   13-17    Utah. 

Tap.    Tappan's  Nisi  Prius  Reports,  Ohio. 

Tap.  C.  it.     Tapping's  Copyholder's  Manual. 

Tap.  Man.     Tapping  on  the  Writ  of  Mandamus. 

Tapp.    Tappan's  Nisi  Prius  Reports,  Ohio. 

Tapp  M.  &  C.  Tapp  on  the  Law  of  Maintenance 
and  Champerty. 

Tarl.  Term  R.  Tarleton's  Term  Reports,  New 
South    Wales. 

Tas.-Lang.  Const.  His.  Taswell-Langmead's  Con- 
stitutional History  of  England. 

Taun.  or  Taunt.  Taunton's  English  Common  Pleas 
Reports. 

Tax  Law  Rep.    Tax  Law  Reporter. 

Tay.  Taylor  (see  Taylor) ; — Taylor's  Reports,  On- 
tario. 

Tay.  J.  L.  or  Tay.  N.  C.  J.  L.  Taylor's  North  Caro- 
lina   Reports. 

Tay.  V.  C.     Taylor's  Upper  Canada  Reports. 

Tay.  &  B.     Taylor  &  Bell's  Bengal  Reports. 

Tayl.  Bank.  L.      Taylor    on    the    Bankruptcy    Law. 

Tayl.  Civ.  L.  or  Tayl.  Civil  Law.  Taylor  on  Civil 
Law. 

Tayl.  Ev.     Taylor  on   Evidence. 

Tayl.  Gloss.     Taylor's    Law   Glossary. 

Tayl.  Gov.     Taylor  on  Government. 

Tayl.  Hist.  Gav.  Taylor  (Silas),  History  of  Gavel- 
kind. 

Tayl.  (J.  L.).  Taylor's  Reports,  North  Carolina 
Term  Reports. 

Tayl.  L.  <Sc  T.     Taylor  on  Landlord  and  Tenant. 

Tayl.  Law  Glos.     Taylor's  Law  Glossary. 

Tayl.  Med.  Jur.    Taylor's  Medical  Jurisprudence. 

Tayl.  Pois.     Taylor  on  Poisons. 

Tayl.  (V.  C).  Taylor's  Reports,  Upper  Canada 
King's  Bench. 

Tayl.  Wills.     Taylor  on  Wills. 

Taylor.  Taylor's  North  Carolina  Reports  ; — Tay- 
lor's Upper  Canada  Reports  ; — Taylor's  Bengal  Re- 
ports. 

Taylor  U.  C.  Taylor's  King's  Bench  Reports,  Up- 
per Canada  (now  Ontario). 

Tech.  Diet.     Crabb's  Technological  Dictionary. 

Techn.  Diet.     Crabb's  Technological   Dictionary. 

Tel.     The  Telegram,  London. 

Temp.     Tempore   (in  the  time  of). 

Temp.  Geo.  II.  Cases  in  Chancery  tempore  George 
II. 

Temp.  &  M.    Temple  &  Mew's  English  Crown  Cases. 

Ten.  Cas.  Thompson's  Unreported  Cases,  Tennes- 
see ; — Shannon's  Cases,  Tennessee. 

Tenn.    Tennessee ;— Tennessee  Reports  (Overton's). 


Tenn.  Ch.    Tennessee  Chancery  Reports  (Cooper's). 

Tenn.  Leg.  Rep.  Tennessee  Legal  Reporter,  Nash- 
ville. 

Term.  Term  Reports,  English  King's  Bench 
(Durnford   and  East's  Reports). 

Term  N.  C.  Term  Reports,  North  Carolina,  by 
Taylor. 

Term  R.  Term  Reports,  English  King's  Bench 
(Durnford  &  East's  Reports). 

Termes  de  la  Ley.     Les  Termes  de  la  Ley. 

Terr.  Territory ; — Terrell's  Reports,  vols.  52-71 
Texas. 

Terr.  &  Wal.  or  Terr.  &  Walk.  Terrell  and  Walk- 
er's  Reports,  Texas  Reports,  vols.  38-51. 

Tex.     Texas  ; — Texas  Reports. 

Tex.  App.  Texas  Court  of  Appeals  Reports  (Crim- 
inal   Cases)  ; — Texas    Civil    Appeals   Cases. 

Tex.  Civ.  App.  or  Tex.  Civ.  Rep.  Texas  Civil  Ap- 
peals Reports. 

Tex.  Cr.  App.     Texas  Criminal  Appeals. 

Tex.  Crim.  Rep.     Texas   Criminal    Reports. 

Tex.  Ct.  Rep.     Texas  Court  Reporter. 

Tex.  L.  J.     Texas   Law  Journal,  Tyler,   Texas. 

Tex.  Supp.     Supplement  to  vol.  25,  Texas   Reports. 

Tex.  Unrep.  Cas.  Texas  Unreported  Cases,  Su- 
preme   Court. 

Th.  Thomas  (see  Thorn.)  ; — Thomson  (see  Thorn.)  ; 
—Thompson  (see  Thomp.). 

Th.  B.  &  N.     Thomson  on  Bills  and  Notes. 

Th.  Br.     Thesaurus   Brevium. 

Th.  C.     Theodon  Capitula  et   Fragmenta. 

Th.  C.  C.  Thacher's  Criminal  Cases,  Massachu- 
setts. 

Th.  C.  Const.  Law.  Thomas's  Leading  Cases  in 
Constitutional  Law. 

Th.  Dig.     Theloall's  Digest. 

Th.  Ent.     Thompson's  Entries. 

Th.  &  C.  Thompson  &  Cook's  New  York  Supreme 
Court   Reports. 

Thac.  Cr.  Cas.  or  Thach.  Cr.  Cas.  Thacher's  Crim- 
inal  Cases,    Massachusetts. 

Thayer.     Thayer's   Reports,   vol.   18  Oregon. 

Thayer  Cas.  Ev.  Thayer's  Select  Cases  on  Evi- 
dence. 

Thayer  Cont.  L.  Thayer's  Cases  on  Constitutional 
Law. 

The  Rep.  The  Reporter  ; — The  Reports  (Coke's 
Reports). 

Them.  La  Themis,  Montreal,  Quebec  ; — The  Amer- 
ican Themis,   New  York. 

Themis.    The  American  Themis,  New  York. 

Theo.  Pr.  &  S.    Theobald  on  Principal   and  Surety. 

Theo.  Wills.    Theobald  on  Construction  of  Wills. 

Thes.  Brev.     Thesaurus  Brevium. 

Tho.  Thomas  (see  Thom.)  ; — Thomson  (see 
Thorn.)  ; — Thompson  (see  Thomp.). 

Thom.  Thomson's  Reports,  Nova  Scotia  ; — Thom- 
as's  Reports,    vol.   1   Wyoming. 

Thom.  Bills.     Thomson  on  Bills  and  Notes. 

Thom.  Co.  Litt.  Thomas's  Edition  of  Coke  upon 
Littleton. 

Thom.  Const.  L.  Thomas's  Leading  Cases  on  Con- 
stitutional Law. 

Thom.  Dec.    1  Thomson,  Nova  Scotia  Reports. 

Thom.  L.  C.  Thomas's  Leading  Cases  on  Constitu- 
tional Law. 

Thom.  Mort.     Thomas  on  Mortgages. 

Thom.  Rep.     2  Thomson,  Nova  Scotia  Reports. 

Thom.  8c.  Acts.     Thomson's  Scottish   Acts. 

Thom.  Sel.  Dec.  Thomson's  Select  Decisions,  Nova 
Scotia. 

Thom.  U.  Jur.  Thomas  on  Universal  Jurispru- 
dence. 

Thom.  CWy.).     Thomas's  Reports,  Wyoming. 

Thom.  &  Fr.  Thomas  &  Franklin's  Reports,  Mary- 
land  Ch.   Dec,   vol.   1. 

Thomas.    Thomas's    Reports,    Wyoming    Territory. 

Thomas,  Mortg.    Thomas  on   Mortgages. 

Thomp.  B.  B.  8.  Thompson  on  Benefit  Building 
Societies. 

Thomp.  (Cal.).  Thompson's  Reports,  California 
Reports,  vols.  39-40. 

Thomp.  Car.    Thompson  on  Carriers. 

Thomp.  Ch.  Jury.     Thompson  on  Charging  the  Jury. 


ABBREVIATION 


79 


ABBRI.."      "HON 


Thomp.  Cit.    Thompson's     Citations,     Ohio ;— Indi- 
ana. 
Thomp.  Corp.    Thompson  on  Corporations. 
Thomp.  Ent.     Thompson's    Entries. 
Thump,  High.    Thompson    on    the    Law    of    High- 
ways. 

Thomp.  Home,  d  Excm.    Thompson    on    Homestead 
and   Exemption. 

Thomp.  Liab.  Off.    Thompson's   Cases   on    Liability 
of  Ollicers  of  Corporations. 

Thomp.  Liab.  Stuckh.    Thompson    on     Liability    of 
Stockholders. 

Thomp.    N.    B.    Cas.    Thompson's    National    Bank 
Cases. 

Thomp.  (N.  S.).    Thompson's    Reports,    Nova    Sco- 
tia. 
Thomp.  Neg.    Thompson's  Cases  on  Negligence. 
Thomp.  licm.    Thompson's     Provisional     Remedies. 
Thump.  Term.  Cas.    Thompson's    Unreported    Ten- 
nessee Cases. 

Thomp.  d  C.    Thompson   &    Cook's   New    York    Su- 
preme Court  Reports. 

Thompson.    Thompson's  Reports,   vols.   39,  40  Cal- 
ifornia ;— Thompson's   Nova  Scotia  Reports. 
Thor.    Thorington's  Reports,  vol.  107  Alabama. 
Thorn.    Thornton's   Notes   of    Cases   Ecclesiastical 
and  Maritime,   English. 
Thorn.  Conv.    Thornton's  Conveyancing. 
Thorpe.    Thorpe's  Reports,   vol.   52  Louisiana  An- 
nual. 
Thos.    Thomas    (see  Thom.). 

Throop  Ag.   or  Throop   V.   Ag.    Throop  on  Verbal 
Agreements. 

Tich.  Tr.  or  Tichb.  Tr.    Report     of     the     Tlchborne 
Trial,   London. 
Tidd.    Tidd's  Costs;— Tidd's  Practice. 
Tidd  Pr.    Tidd's  Practice. 

Tidd  Pr.    Tidd's  Practice  in  the  King's  Bench. 
Tiff.    Tiffany's     Reports,     vols.     28-39     New     York 
Court  of  Appeals. 

Tiff.    Tiffany's   Reports,   New   York   Court  of   Ap- 
peals Reports,  vols.  28-39. 

Tiff.  d  B.  Tr.    Tiffany   and  Bullard  on   Trusts   and 
Trustees. 

Tiff,  d  S.  Pr.    Tiffany    and   Smith's   Practice,    New 
York. 

Tiffany.    Tiffany's   Reports,  vols.    28-39   New   York 
Court  of    Appeals. 
Till.  Prec.    Tillinghast's   Precedents. 
Till.  d  Sh.  Pr.    Tillinghast  and    Shearman's   Prac- 
tice. 

Till.  d  Yates  App.    Tillinghast    and    Yates   on   Ap- 
peals. 

Tillman.    Tillman's  Reports,  vols.  68,  69,  71,  73,  75 
Alabama. 
Times  L.  R.    Times  Law  Reports. 
Tinw.    Tinwald's    Reports,    Scotch    Court   of    Ses- 
sion. 
Tit.    Title. 

To.  Jo.    Sir  Thomas  Jones's  English  King's  Bench 
Reports. 
Tobey.    Tobey's   Reports,   vols.   9-10   Rhode  Island. 
Toll.  Ex.    Toller  on  Executors. 

Tomk.  Inst,  or  Tomk.  R.  L.    Tompkins's      Institutes 
of  Roman   Law. 

Tomk.  d  J.  R.  L.    Tompkins   and    Jeckens's   Roman 
Law. 

Tomkins  <£  J.  Mod.  Rom.  Law.    Tomklns  &      Jenck- 
en,   Compendium  of  the  Modern   Roman    Law. 

Toml.  or  Toml.  Cas.    Tomlins's     Election    Evidence 
Cases. 
Toml.  L.  D.    Tomlin's   Law  Dictionary. 
Toml.  Supp.  Br.    Tomlin's    Supplement   to   Brown's 
Parliamentary  i 
Tor.  Deb.    Torbuck's  Reports  of  Debates. 
Tot.  or  Toth.    Tothill's   English    Chancery  Reports. 
Touch.    Sheppard's  Touchstone. 
Toull.  or  Toull.  Dr.  Civ.  or  Toull.  Droit  Civil  Fr. 
or    Toullier,    Dr.    Civ.    Fr.    Toullier's    Droit    Civil 
Frangais. 
Town.  SI.  d  L.    Townshend   on    Slander   and    Libel. 
Town.  8t.  Tr.    Townsend'a    Modern    State   Trials. 
Town.  Sum.  Proc.    Townshend's  Summary  Proceed- 
ings  by    Landlords  against  Tenants. 
Townsh.  PI.    Townshend's   Pleading. 
Tr.    Translation;— Translator. 


Tr.  App.    New  York  Transcript   Appeals. 
Tr.  Ch.    Transactions  of  the  High  C  >urt  of  I'hau 
eery    (To  thill 'a   R<  ; 
Tr.  Eq.    Treatise  of    Equity,    by   Font, 
Tr.  d  H.  Pr.    Troubat  and    Haly's    -  Penn 

sylvania. 

Tr.  d  H.  Prec.    Troubat   and   Haly's   Pr 
Indictments. 

d  M.    Tracewell  and  Mitchell,  United 
Comptroller's  Decisions. 
Traill  Med.  Jur.    Traill  on  Medical  Jurispru  . 
Train  d  II.  Prec.    Train    and     Heard's     Pre: 
of   Indictments. 

Uu  Mar.    Pothler,     Traite     du     Contrat    de 
Manage. 
Trans.  App.    Transcript  Appeals,   New  York. 
Trat.  Jur.  bier.    Trat.ide    de    Jurisprudentia    Mer- 
cautil. 

Tmv.Tw.  L.  of  N.    Travers   Twiss   on   the   Law   of 
Nations. 

Tray.  Lat.  Max.  or  Leg.  Max.    Trayncr,  Latin  Max- 
ims and   Phrases,  etc.. 

or  Tread.  Const.  (S.  C).    Treadway's    South 
Carolina    Constitutional    Reports. 

Treb.  Jur.  de  la  Med.    Trebuchet,   Jurisprudence  de 
la  Medecine. 
Tred.    Tredgold's    Reports,    Cape    Colony. 
Trem.    Tremaine's    Pleas   of   the   Crown. 
Trev.  Tax.  Sue.    Trevor    on    Taxes    on    Succession. 
Tri.  Bish.    Trial  of  the   Seven   Bishops. 
Tri.  E.  of  Cov.    Trial   of  the  Earl  of  Coventry. 
Tri.  per  Pais.    Trials   per    Pais. 
Trib.  Civ.    Tribunal    Civil. 
Trib.  de  Com.    Tribunal  de  Commerce. 
Trin.  or  Trin.  T.     Trinity    Term. 
Tripp.    Tripp's   Reports,  vols.  5-6  Dakota. 
Tristram.    Tristram's   Supplement   to   vol.    4   Swa- 
bey  &  Tristram. 
Trop.  Dr.  Civ.    Troplong's    Droit    Civil. 

Lim.  Part,  or  Troub.  Lim.  Partn.    Troubat 
on   Limited  Partnerships. 

Troub.  d  H.  Pr.    Troubat      and      Haly's      Practice. 
Pennsylvania. 
Tru.  Raiho.  Rep.    Truman's    Railway   Reports. 
True.    Trueman's    New    Brunswick    Reports     and 
Equity    Cases. 

.  Tuck.  Tucker's  New  York  Surrogate  Reports;— 
Tucker's  Select  Cases,  Newfoundland;— Tucker's 
Reports,  vols.  156-175  Massachusetts  ;— Tucker's  Dis- 
trict of    Columbia    Appeals    Reports. 

Tuck.  Bla.  Com.    Blackstone's     Commentaries,     by 
Tucker. 
Tuck.  Lect.    Tucker's  Lectures. 
Tuck.  PI.    Tucker's    Pleadings. 

Tuck.  Sel.  Cas.    Tucker's    Select   Cases,   Newfound- 
land   Courts. 

Tuck.  Surr.    Tucker's    Surrogate   Reports,    City   of 
New  York. 

Tuck,  d  CI.    Tucker  and  Clephane's  Reports,  D.  of 
Col.,   vol.    21. 

Tud.  Cas.  Merc.  Law.    Tudor's    Leading    Cases    on 
Mercantile    Law. 

Tud.  Cas.  R.  P.    Tudor's    Leading    Cases    on    Real 
Property. 

Tud.    Char.    Tr.   or   Tud.   Char.    Trusts.    Tudor  on 
Charitable  Trusts. 

Tud.  L.  Cas.  or  Tud.  L.  Cas.  M.  L.    Tudor's  Lead- 
ing Cases  on  Mercantile   Law. 

Tud.  L.  Cas.  R.  P.    Tudor's  Leading  Cases  on  Real 
Property. 

Od.    Cas.    Real    Prop.    Tudor's    Leading 
Cases    on   Real    Property. 
Tup.  App.    Tupi  ports,    Ontario. 

Tupper.    Tupper's     R  tarlo     Appeals;— 

Tupper's  Upper  Canada  Practice  Itep  > 

Turner    &    Russell's   English   Chancery    Re- 
ports. 

Turn.    Turner's  Reports,   vols.  99-101   Kentucky  ;— 
Turner's    Reports,   vols.   35,  48   Arkansas. 

Turn.  Anglo  Sax.    Turner,    History    of    the    Anglo 
Saxons. 

Turn.  (Ark.).    Turner's    Reports,    Arkansas,    vols. 
35-48. 
Turn.  Ch.  Pr.    Turner  on   Chancery   Practice, 
Turn.  Pr.    Turnbull's  Practice,  New  York. 


ABBREVIATION 


80 


ABBREVIATION 


Turn.  &  Ph.    Turner    and   Phillip's    Reports,    Eng- 
lish Chancery. 

Turn,    dc   R.   or  Turn.    <£•   Rus.    or    Turn.    &   Russ. 
Turner  &  Russell's   English   Chancery  Reports. 

Tutt.    Tuttle's  Reports,  California. 

Tutt.  &  Carp.    Tuttle     and      Carpenter's     Reports, 
California  Reports,  vol.  5^. 

Tuttle.    Tuttle's  Reports,  vols.  23-32  and  41-52  Cal- 
ifornia. 

Tuttle  <£•  Carpenter.    Tuttle  &  Carpenter's  Reports, 
vol.  52   California. 

Twiss  L.  of  Nat.    Twlss's   Law  of   Nations. 

Ty.    Tyler. 

Tyl.  or  Tyler.    Tyler's  Vermont  Reports. 

Tyler  Bound,  i.  Fences.    Tyler's    Law    of    Bounda- 
ries and  Fences. 

Tyler  Ecc.    Tyler  on  American  Ecclesiastical  Law. 

Tyler  Ej.    Tyler   on    Ejectment    and    Adverse    En- 
joyment. 

Tyler  Fixt.    Tyler   on    Fixtures. 

Inf.    Tyler  on  Infancy  and  Coverture. 

Tyler  Vs.    Tyler  on  Usury. 

Tyng.    Tyng's   Reports,   vols.  2-17  Massachusetts. 

Tyr.  or  Tyrw:    Tyrwhitt  &   Granger's   English  Ex- 
chequer  Reports. 

Tyr.  &  Gr.    Tyrwhitt  &  Granger's  English  Excheq- 
uer Reports. 

Tyrio.    Tyrwhitt's  Reports,  English  Exchequer. 

Tyrw.  &  G.    Tyrwhitt  and  Granger's  Reports,  Eng- 
lish   Exchequer. 

Tytler,  Mil.  Law.    Tytler    on    Military     Law     and 
Courts-Martial. 

U.     Utah  ;— Utah   Reports. 

V.  B.     Upper  Bench. 

V.  B.  Pr.  or  U.  B.  Prec.      Upper    Bench    Precedents 
tempore  Car.   I. 

V.  C.     Upper  Canada. 

V.  C.  App.     Upper  Canada  Appeal  Reports. 

U.  C.  C.  P.    Upper  Canada  Common  Pleas  Reports. 

V.  C.  Ch.     Upper   Canada   Chancery   Reports. 

U.  C.  Cham-.     Upper  Canada  Chambers  Reports. 

V.  C.  Chan.    Upper  Canada  Chancery  Reports. 

V.  C.  E.  &  A.     Upper    Canada    Error   and    Appeals 
Reports. 

V.  C.  Jur.     Upper  Canada  Jurist. 

U.  C.  K.  B.     Upper  Canada  King's   Bench   Reports, 
Old   Series. 

V.  C.  L.  J.     Upper  Canada  Law  Journal,   Toronto. 

U.  C.  O.  S.    Upper  Canada  Queen's  Bench  Reports, 
Old  Series. 

U.  C.  P.  R.     Upper  Canada  Practice  Reports. 

V.  C.  Pr.    Upper  Canada  Practice  Reports. 

U.  C.  Q.  B.     Upper  Canada  Queen's  Bench  Reports. 

V.  C.  Q.  B.  O.  S.      Upper    Canada    Queen's    (King's) 
Bench  Reports,   Old   Series. 

U.  C.  R.     Queen's  Bench  Reports,  Ontario. 

U.  C.  Rep.     Upper  Canada  Reports. 

V.  K.     United   Kingdom. 

V.  S.     United  States  ; — United  States  Reports. 

V.  S.  Ap.     United  States  Appeals  Reports. 

U.  S.  App.     United   States   Appeals,   Circuit  Courts 
of  Appeals. 

V.  S.  C.  C.     United    States   Circuit   Court ;— United 
States  Court  of  Claims. 

V.  S.  C.  S.     United    States   Civil    Service   Commis- 
sion. 

U.  S.  Comp.  St.     United    States   Compiled    Statutes. 

V.  S.  Comp.  St.  Sv.pp.        United      States      Compiled 
Statutes   Supplement. 

V.  S.  Crim.  Dig.   '  United    States    Criminal    Digest, 
by   Waterman. 

V.  S.  Ct.  CI.     Reports   of   the   United   States  Court 
of  Claims. 

U.  S.  D.  C.     United   States  District  Court ;— United 
■States  District  of  Columbia. 

U.  S.  Dig.     Abbott's  United  States  Digest. 

V.  S.  Eq.  Dig.     United  States  Equity  Digest. 

V.  S.  Jur.    United  States  Jurist,  Washington,  D.  C. 

U.  S.  L.  Int.    United  States  Law  Intelligencer  (An- 
gell's),  Providence  and  Philadelphia. 

U.  S.  L.  J.    United  States  Law  Journal,  New  Haven 
and  New  York. 

V.  S.  L.  M.  or  U.  S.  Law  Mag.      United    States    Law 
Magazine  (Livingston's),  New  York. 

V.  S.  R.    United  States  Supreme  Court  Reports. 


U.  S.  Reg.    United  States  Register,  Philadelphia. 

V.  S.  R.  S.     United  States  Revised  Statutes. 

V.  S.  Rev.  St.     United  States  Revised  Statutes. 

V.  S.  S.  C.  Rep.  United  States  Supreme  Court  Re- 
ports. 

V.  S.  St.  at  L.  or  V.  S.  Stat.  United  States  Statutes 
at  Large. 

V.  S.  St.  Tr.  United  States  State  Trials  (Whar- 
ton's). 

V.  S.  Sup.  Ct.  Rep.  United  States  Supreme  Court 
Reporter. 

Vim.  L.  Rec.    Ulman's  Lawyer's  Record,  New  York. 

Ulp.     Ulpian's  Fragments. 

Vnderh.  Torts.     Underhill  on  Torts. 

Vp.  Ben.  Pre.  Upper  Bench  Precedents,  tempore 
Car.  I. 

Vp.  Can.     Upper  Canada  (see  U.   C). 

Vpt.  Mar.  W.  &  Pr.  Upton  on  Maritime  Warfare 
and   Prize. 

Vrl.  Trust.    Urling   on  Trustees. 

Vtah.     Utah    Reports. 

V.  Vermont;— Vermont  Reports; — Virginia; — Vir- 
ginia Reports  ; — Versus.     Victoria.     Victorian. 

V.  A.  C.  or  V.  Adm.     Vice-Admiralty    Court 

V.  C.      Vice-Chancellor.     Vice-Chancellor's    Court. 

V.  C.  C.    Vice-Chancellor's  Court. 

V.  C.  Rep.    Vice-Chancellor's   Reports,  English. 

V.  L.  R.  Victorian  Law  Reports,  Australia.  (For 
Victorian  see  Vict.) 

V.  N.     Van  Ness's  Prize  Cases. 

V.  O.    De  Verborum  Obligationibus. 

V.  R.     Vermont  Reports. 

V.  S.    De  Verborum  Signiflcatione. 

V.  t£-  B.  Vesey  &  Beames'  English  Chancery  Re- 
ports. 

V.  &  S.  Vernon  and  Scriven's  Reports,  Irish 
King's  Bench. 

Va.  Virginia  ; — Virginia  Reports  ; — Gilmer's  Vir- 
ginia  Reports. 

Va.  Bar  Assn.    Virginia   State  Bar  Association. 

Va.  Cas.  Virginia  Cases  (by  Brockenbrough  A 
Holmes). 

Va.  Ch.  Dec.    Chancery  Decisions,  Virginia. 

Va.  L.  J.     Virginia    Law   Journal,    Richmond. 

Va.  R.  Virginia  Reports  ;— Gilmer's  Virginia  Re- 
ports. 

Val.  Com.     Valen's   Commentaries. 

Vail.  Ir.  L.    Vallencey's   Ancient  Laws  of  Ireland. 

Van  Hay.  Eq.  Van  Haythuysen's  Equity  Drafts- 
man. 

Van  Hay.  Mar.  Ev.  Van  Haythuyer  on  Maritime 
Evidence. 

Van  K.  Van  Koughnet's  Reports,  vols.  15-21  Upper 
Canada   Common  Pleas. 

Van.  L.     Vander   Linden's   Practice,    Cape   Colony. 

Van  N.  or  Van  Ness.  Van  Ness's  Prize  Cases, 
United  States  District  Court  New  York. 

Van  Sunt.  Eq.  Pr.  Van  Santvoord's  Equity  Prac- 
tice. 

Van  Sant.  PI.     Van   Santvoord's  Pleadings. 

Van  Sant.  Prec.     Van  Santvoord's  Precedents. 

Vanderstr.     Vanderstraaten's  Ceylon  Reports. 

Vatt.     Vattel's  Law  of   Nations. 

Vatt.LaxoNat.(orVattel).  Vattel's  Law  of  Na- 
tions. 

Vaug.  or  Vaugh.  or  Vaughan.  Vaughan's  English 
Common  Pleas  Reports. 

Vaux.     Vaux's  Recorder's  Decisions,   Philadelphia. 

Vaz.  Extrad.    Vazelhes's  Etude  sur  l'Extradition. 

Ve.  or  Ves.    Vesey's  English  Chancery  Reports. 

Ve.  &  B.  or  Ves.  &  B.  Vesey  &  Beames's  English 
Chancery  Reports. 

Veaz.  or  Veazey.  Veazey's  Reports,  vols.  36-46  Ver- 
mont. 

Vend.  Ex.    Venditioni  Exponas. 

Vent,  or  Ventr.  Ventris's  English  Common  Pleas 
Reports  ; — Ventris's   English   King's   Bench    Reports. 

Ver.  or  Verm.     Vermont  Reports. 

Vern.     Vernon's  Reports,  English  Chancery. 

Vern.  &  Sc.  or  Vern.  &  Scr.  or  Vern.  &  Scriv. 
Vernon  &  Scriven's  Irish  King's  Bench  Reports. 

Verpl.  Contr.     Verplanck  on   Contracts. 

Verpl.  Ev.     Verplanck  on  Evidence. 

Ves.     Vesey,   Senior's  Reports,  English   Chancery. 


ABBREVIATION 


til 


ABB..  [ON 


Ves.  Jr.  or  Ves.  Jun.  Vesey,  Junior's  Reports,  Eng- 
lish  Chancery. 

Ves.  Jun.  Hupp.  Supplement  to  Vesey,  Jr. 'a,  Eng- 
lish  Chancery  Reports,    by  Hovenden. 

Ves.  Sen.  or  Ves.  Sr.  Vesey,  Sr.'s,  English  Chan- 
cery  Reports. 

Ves.  d  B.  or  Ves.  &  Bea.  or  Ves.  &  Beam.  Vesey  & 
Beames's  English  Chancery  Reports. 

Vet.  Entr.     Old   Book  of  Entries. 

Vet.  N.  B.  or  Vi  t.  Na.  B.     Old  Natura  Brevium. 

Vez.    Vezey's  (Vesey's)  English  Chancery  Reports. 

Vic.  or  Vict.     Queen    Victoria. 

Vicat.  or  Vicat.  Voc.  Jur.  Vocabularium  Jurlsutri- 
usque,  ex  variis  editis. 

Vict.     Queen   Victoria. 

Vi't.C.S.    Victorian  Consolidated  Statutes. 

Vict.  L.  li.  Victorian  Law  Reports,  Colony  of  Vic- 
toria, Australia. 

Vict.  L.  R.  Uin.     Victorian  Mining  Law  Reports. 

Vict.  L.  T.     Victorian   Law   Times,    Melbourne. 

Vict.  Rep.     Victorian   Reports,   Colony  of  Victoria. 

Vict.  Rev.     Victorian    Review. 

Vict.  St.  Tr.     Victorian   State  Trials. 

Vid.  Entr.     Vidian's  Entries. 

Vil.  d  Br.  Vilas  &  Bryant's  Edition  of  the  Wis- 
consin  Reports. 

Vilas.     Vilas's  New  York  Criminal  Reports. 

Vin.  Abr.     Viner's   Abridgment. 

Via.  Supp.     Supplement  to  Viner's  Abridgment. 

Vinccus  Leg.  Com.  Vincens's  Legislation  Commer- 
clale. 

Vinn.     Vinnius. 

Vint.  Can.  L.     Vinton  on  American  Canon  Law. 

Vir.     Virgin's   Reports,  Maine. 

Virg.     Virginia  (see  Va.)  ; — Virgin. 

Virg.  Cas.     Virginia  Cases. 

Virg.  L.  J.    Virginia  Law  Journal. 

Virgin.  Virgin's  Reports,  vols.  52-60  Maine  ;— Vir- 
ginia (see  Va.). 

Viz.    Videlicet,  That  Is  to  say. 

Vo.     Verbo. 

Voct,  Com.  ad  Pand.  Voet,  Commentarius  ad  Pan- 
dectas. 

Von  Hoist  Const.  His.  Von  Hoist's  Constitutional 
History  of  the  U.  S. 

Voor7i.  Code.     Voorhies's  Code,  New  York. 

Voorh.  Cr.  Jur.  Voorhies  on  the  Criminal  Juris- 
prudence of  Louisiana. 

Vr.  or  Vroom.  Vroom's  Reports,  New  Jersey  Law 
Reports,   vols.  30-56. 

Vroom  (O.  D.  W.).  G.  D.  W.  Vroom's  Reports, 
vols.   36-63   New   Jersey   Law. 

Vroom  (P.  D.)  P.  D.  Vroom's  Reports,  vols.  30-35 
New  Jersey  Law. 

Vs.     Versus. 

Vt.     Vermont  ;— Vermont  Reports. 

W.  King  William  ;  thus  1  W.  I.  signifies  the  first 
year  of  the  reign  of  King  William  I.  ;— Wheaton's 
United  States  Supreme  Court  Reports ;— Wendell's 
New  York  Reports;— Watts'  Reports,  Pennsylvania; 
—Weekly  ;— Wisconsin  ; — Wyoming  ; — Wright's  Ohio 
Reports  ;— Statute  of  Westminster. 

W.  .1.     Western  Australia. 

W.  Bl.  or  W.  Bla.  Sir  William  Blackstone's  Eng- 
lish  King's  Bench  and  Common  Pleas   Reports. 

W.  C.  C.  Washington's  United  States  Circuit  Court 
Reports. 

W.  Coast  Rep.    West  Coast  Reporter. 

W.  Ent.     Winch's  Book  of  Entries. 

W.  H.  Chron.  Westminster  Hall  Chronicle,  Lon- 
don. 

W.  II.  d  G.  Welsby,  Hurlstone  and  Gordon's  Re- 
ports,  English   Exchequer  Reports,   vols.   1-9.       , 

W.  J.     Western   Jurist,  Des  Moines.   Iowa. 

1'.'.  Jo.  or  W.  Jones.  Wm.  Jones's  Reports,  English 
Courts. 

II'.  Eel.  Wm.  Kelynge's  Reports,  English  King's 
Bench  and   Chancery. 

W.  L.  Gaz.     Western    Law   Gazette,    Cincinnati,   O. 

TV.  L.  Jour.     Western   Law  Journal,   Cincinnati,  O. 

W.  L.  M.    Western  Law  Monthly,  Cleveland,  O. 

TV.  L.  R.     Washington  Law  Reporter,   Washington, 
D.   C. 
TV.  N.    Weekly  Notes,  London. 
W.  N.  Cas.     Weekly  Notes  of  Cases,  Philadelphia. 
Bouv.— 6 


TV.  P.  Cas.    Wollaston's  English  Bail  C    irt  (Prac- 
tice)  Cases. 

W.  R.     Weekly     Reporter,     Lend 
porter,    Bengal ;— Wendell's    New    fork    B 

Bin  Reports;— West's  Repor. 
eery  j. 

W.K.Calc.     Southerland's  Weekly   Reporter,   Cal- 
cutta. 

p.     West's   Reports   temp.    Hardwlcke,   Eng- 
nancery. 
b.     W.    Robinson's    English    Admiralty    Re- 
ports. 

I'.'.  T.  R.     Weekly  Transcript  Reports,   New  York. 
:.     Wright's  Tenures. 

ington    Territory 

11'.  la.      West    Virginia  ;— West    Virginia    Reports. 

W.    W.   d  A'B.    Vict.    Wyatt,    Wei 
Reports,    Victoria. 

W.  W.  d  I).      Willmore,    Wollaston    and    Davison's 
s,  English   Queen's  Bench. 

W.  W.dH.    Willmore,  Wollaston  and  Hodge's  Re- 
ports, English  Queen's  Bench. 

W.dB.Dig.     Walker  &  Bates's  Digest,   Ohio. 

IV.  d  Buh.      West    &    Buhler's    Collection    of    Fut- 
wahs,  India. 

W,  ii-  C.    Wilson  &  Courtenay's  Scotch  Appeal  Cas- 
es  (see  Wilson   &  Shaw). 

W.  d  L.  Dig.    Wood  &  Long's  Digest,   Illinois. 

W.  d  M.     Woodbury  &   Minot's  United   States  Cir- 
cuit Court  Reports  ;— William   &  Mary. 

TV.  if-  S.    Watts    &     Sergeant's     Pennsylvania    Re- 
ports;— Wilson  &.  Shaw's  Scotch  Appeal  Cases. 

H'.  a  .Ison   and  Shaw's  Scotch  Appeals, 

English   House   of   Lor 

W.  &  T.  Eq.  Ca.  or  W.  d  T.  L.  C.      White    &    Tudor's 
Leading  Cases  in  Equity. 

W.dW.     White   .k    Wilson's   Texas    Court  of   Ap- 
peals,  Civil  Cases. 

TV.  d  W.  Vict.     Wyatt  &  Webb's  Victorian  Reports. 

Wa.    Watts's   Reports,    Pennsylvania  ;— Wal 

Wadd.  Dig.     Waddilove's    Digest    of   English    Ec- 
clesiastical Cases. 

Wade  Notice.     Wade  on  the   Law  of  Notice. 

Wade  Retro.  L.    Wade  on  Retroactive  Laws. 

Watt  Act.  d  Def.    Wait's  Actions  and  Defence. 

Wait  Dig.     Wait's  Digest,   New   York. 

Watt  Pr.    Wait's   New  York  Practice. 

Wait  St.  Pap.     Wait's   State  Papers  of  the  United 
States. 

Wnl.     Wallace  (see  Wall.). 

11';/.  by  L.     Wallis's  Irish    Reports,   by   Lyne. 

Wal.Jr.     Wallace's   (J.  W.)  United  States  Circuit 
Court  Reports. 

Wal.  Sr.     Wallace's   (J.   B.)    United   States  Circuit 
Court  Reports. 

Waif.  Railto.     Walford  on   Railways. 

Walker's  Mississippi  Reports ;— Walker's 
Michigan  Chancery  Reports;— Walker's  Reports, 
vols.  25,  72-88  Texas;— Walker's  Reports,  vols.  1-10 
Texas  Civil  Appeals ; — Walker's  Reports,  vols.  96, 
109  Alabama;— Walker's   Pennsylvania   Reports. 

Walk.  Am.  L.     Walker's  Introduction  to  American 
Law. 

TValfc.  Bank.  L.    Walker  on  Banking  Law. 

Walk.  Ch.  or   Walk.  Ch.  Cas.      Walker's    Chancery 
Cases,   Michigan. 

Walk.  Com.  L.     Walker's    Theory   of    the   Common 
Law. 

Walk.  (Mich.).    Walker's  Reports.  Michigan  Chan- 
cery. 

Walfc.  (Miss.).     Walker's   Reports,   Mississippi   Re- 
ports,  vol.   1. 

r.     II:.  (Pa.).     Walker's  Pennsylvania  Reports. 

Walk:  (Tex.).     Walker's   Reports,    Texas    R 
vol.   25. 

.  Will*.     Walki  r  on  Wilis. 
sr.    Walker's  Reports,  vols.  96.  109.  Alabama  ; 
—Walker's    Michigan    Chancery    Reports ; — Walker's 
•;  ippi     Reports ;— Walker's     Pennsylvania     Re- 

Walker's    Reports,    \  '  S8    Texas;— 

Walker's  Reports,  vols.  1-10  Texas  Civil  Appeals. 

Wall.      Wallace'  States    Supreme    Court 

e's     (Sr.)      United     States     Circuit 
Court    Reports;— V-  I  'hiladelphia    Reports;-- 

Wallis's  Irish  Chancery  Reports, 


ABBREVIATION 


82 


ABBREVIATION 


Wall.  C.  C.  Wallace's  United  States  Circuit  Court 
Reports,  Third   Circuit. 

Wall.  Jr.  or  Wall.  Jun.  Wallace,  Junior's,  Reports, 
U.  S.  Circuit  Court,  3d  Circuit. 

Wall.  Pr.  Wallace's  Principles  of  the  Laws  of 
Scotland. 

Wall.  Rep.  Wallace  on  the  Reporters  ;— Wallace's 
United    States   Supreme   Court   Reports. 

Wall.  S.  C.  Wallace's  United  States  Supreme 
Court   Reports. 

Wall.  Sen.  Wallace's  (J.  B.)  United  States  Circuit 
Court    Reports. 

Wallis.     Wallis's  Reports,   Irish  Chancery. 

Wallis  by  L.  Wallis's  Irish  Chancery  Reports,  by 
Lyne. 

Walsh.    Walsh's  Registry  Cases,  Ireland. 

Ward.  Warden's  Reports,  Ohio ;— Warden  & 
Smith's   Reports,   Ohio. 

Ward,  Leg.     Ward   on   Legacies. 

Ward  Nat.    Ward  on  the  Law  of  Nations. 

Ward.  &  Sm.  Warden  and  Smith's  Reports,  Ohio 
State   Reports,   vol.   3. 

Warden.     Warden's  Reports,  vols.  2,  4  Ohio  State. 

Warden  &  Smith.  Warden  &  Smith's  Reports,  vol. 
3  Ohio  State. 

Ware.  Ware's  Reports,  United  States  District 
Court,  Maine. 

Warr.  Bla.     Warren's   Blackstone. 

Warr.  L.  S.     Warren's  Law   Studies. 

Warth  Code.     West  Virginia  Code,  1899. 

Warv.  Abst.    Warvelle  on  Abstracts  of  Title. 

Wash.     Washington  State  Reports. 

Wash.  Washington  ;  —  Washington's  Reports  ;  — 
Washington's  United  States  Circuit  Court  Reports; 
—Washington's  Virginia  Reports  ;— Washburn's  Re- 
ports, vols.   16-23  Vermont. 

Wash.  C.  C.  Washington's  United  States  Circuit 
Court  Reports. 

Wash.  L.  Rep.  Washington  Law  Reporter,  Wash- 
ington, D.  C. 

Wash.  Ter.     Washington    Territory    Reports. 

Wash.  Ter.  N.  S.  Allen's  Washington  Territory 
Reports,    New    Series. 

Wash.  Ty.     Washington  Territory  Reports. 

Wash.  (Va.).     Washington's    Reports,  Virginia. 

Wash.  &  Haz.  P.  E.  I.  Washburton  &  Hazard's  Re- 
ports, Prince  Edward  Island. 

Washb.     Washburn's    Reports,    Vermont. 

Washb.  Cr.  L.     Washburn    on    Criminal    Law. 

Washb.  Easem.  Washburn  on  Easements  and 
Servitudes. 

Washb.  R.  P.  or  Washb.  Real  Prop.  Washburn  on 
Real  Property. 

Washburn.  Washburn's  Reports,  vols.  16-23  Ver- 
mont. 

Wat.    Watkins  ; — Watson. 

Wot.  (C.  G.  H.).  Watermeyer's  Cape  of  Good  Hope 
Supreme   Court   Reports. 

Wat.  Cr.  Dig.  Waterman's  Criminal  Digest,  Unit- 
ed   States. 

Wat.  Cr.  Proc.    Waterman's  Criminal   Procedure. 

Wat.  Jus.    Waterman's   Justice. 

Wat.  Set-Off.    Waterman   on   Set-Off,    etc. 

Wat.  Tres.    Waterman  on  Trespass. 

Watermeyer.  Watermeyer's  Cape  of  Good  Hope 
Supreme  Court  Reports. 

Watk.  Conv.    Watkins's    Conveyancing. 

Watk.  Copyh.    Watkins's    Copyholds. 

Wats.  Arb.  .Watson  on    Arbitration. 

Wats.  Cler.  Law.    Watson's   Clergyman's   Law. 

Wats.  Comp.  or  Wats.  Comp.  Eq.  Watson's  Com- 
pendium of   Equity. 

Wats.  Const.  Hist.  Watson's  Constitutional  Histo- 
ry of  Canada. 

Wats.  Eq.    Watson's  Compendium  of  Equity. 

Wats.  Part.    Watson    on    Partnership. 

Wats.  Sher.    Watson  on   Sheriffs. 

Watts.  Watts's  Pennsylvania  Reports ; — Watts's 
Reports,  vols.  16-24  West  Virginia. 

Watts  &  S.  or  Watts  &  Ser.  or  Watts  &  Serg.  Watts 
&  Sergeant's  Pennsylvania  Reports. 

Web.  Pat.    Webster    on    Patents. 
Web.  Pat.  Cos.    Webster's    Patent    Cases,    English 
Courts. 

Web.  Tr.  The  Trial  of  Professor  Webster  for 
Murder. 


Webb.  Webb's  Reports,  vols.  6-20  Kansas ;— \ 
Webb's   Reports,   vols.    11-.0    Texas   Civil   Appeals. 

Webb,  A'B.  d  W.  Webb,  A'Beckett  &  Williams's 
Victorian    Reports,   Australia. 

Webb,  A'B.  &  W.  Eq.  Webb,  A'Beckett  and  Wil- 
liams's Equity  Reports,  Victoria. 

Webb,  A'B.  &  W.  J.  P.  &  M.  Webb,  A'Beckett 
and  Williams's  Insolvency,  Probate  and  Matrimo- 
nial  Reports,  Victoria. 

Webb,  A'B.  &  W.  Min.  Webb,  A'Beckett  and  Wil- 
liams's  Mining    Cases,   Victoria. 

Webb.  &  D.  or  Webb  &  Duval.  Webb  &  Duval's  Re- 
ports,  vols.    1-3    Texas. 

Webs.    Webster. 

Webs.  Pat.  Cas.  Webster's  Patent  Cases,  English 
Courts. 

Webst.  Diet,  or  Webster.    Webster's   Dictionary. 

Wedg.  Gov.  &  Laws.  Wedgwood's  Government  and 
Laws  of  the  U.   S. 

Week.  Reptr.  Weekly  Reporter,  London  ; — Weekly 
Reporter,  Bengal. 

Week.  Trans.  Repts.  Weekly  Transcript  Reports, 
New  York. 

Weekl.  Cin.  L.  B.  Weekly  Cincinnati  Law  Bulle- 
tin. 

Weekl.  Dig.    Weekly  Digest,  New  York. 

Weekl.  Jur.    Weekly  Jurist,   Illinois. 

Weekl.  L.  Record.    Weekly   Law    Record. 

Weekl.  L.  Rev.  Weekly  Law  Review,  San  Fran- 
cisco,  Cal. 

Weekl.  No.    Weekly   Notes   of   Cases,  London. 

Weekl.  No.  Cas.  Weekly  Notes  of  Cases,  Phila- 
delphia. 

Weekl.  Reptr.    Weekly  Reporter,  London. 

Weekl.  Trans.  Repts.  Weekly  Transcript  Reports, 
New  York. 

Weeks  Att.  at  Law  or  Weeks,  Attys.  at  Law. 
Weeks  on  Attorneys  at  Law. 

Weeks  D.  A.  Inj.    Weeks,  Damnum  Absque  Injuria. 

Weeks  Dep.    Weeks  on  the  Law  of  Deposition. 

Weight.  M.  &  L.  Weightman's  Marriage  and  Le- 
gitimacy. 

Weight.  Med.  Leg.  Gaz.  Weightman's  Medico-Le- 
gal Gazette,    London. 

Wei.    Welsh's   Irish  Registry   Cases. 

Welf.  Eq.  PI.    Welford    on    Equity    Pleading. 

Wells  L.  &  F.    Wells's  Questions  of  Law  and  Facts. 

Wells,  Repl.    Wells  on   Replevin. 

Wells  Res.  Ad.  &  St.  D.  Wells  on  Res  Adjudicata 
and  Stare  Decisis. 

Wells  Sep.  Pr.  of  Mar.  Worn.  Wells  on  Separate 
Property  of  Married  Women. 

Wellw.  Abr.    Wellwood's  Abridgment  of  Sea  Laws. 

Welsb.,  H.  &  G.  or  Welsby,  H.  &  G.  Welsby,  Hurl- 
stone  &  Gordon's  Reports,  English  Exchequer  Re- 
ports, vols.  1-9. 

Welsh.  Welsh's  Registry  Cases,  Ireland; — Welsh's 
Irish  Cases  at  Sligo;— Welsh's  (Irish)  Case  of 
James  Feighny,  1838. 

Welsh  Reg.  Cas.    Welsh's    Irish    Registry    Cases. 

Wend.  Wendell's  Reports,  New  York  Supreme 
Court. 

Wendt  Mar.  Leg.    Wendt  on  Maritime   Legislation. 

Went.  Ex.  or  Went.  Off.  Ex.  Wentworth  on  Execu- 
tors. 

Went.  PI.    Wentworth  on  Pleading. 

Wenz.    Wenzell's  Reports,  vols.  60-  —  Minnesota. 

Wesk.  Ins.    Weskett  on   Insurance. 

West.  West's  Reports,  English  Chancery,  tempore 
Hardwicke. 

West.  West's  Reports,  English  House  of  Lords  ;— 
West's  Reports,  English  Chancery  ;— Western  Tithe 
Cases  ;— Weston's   Reports,   vols.   11-14  Vermont. 

West.  Aus.    Western  Australia. 

West  Ch.    West's   English   Chancery   Cases. 

West  Co.  Rep.    West    Coast    Reporter. 

West  Coast  Rep.    West  Coast    Reporter. 

West.  Confl.    Westlake  on  Conflict  of  Laws. 

West  H.  L.  West's  Reports,  English  House  of 
Lords. 

West.  Jur.    Western  Jurist,   Des  Moines,   Iowa. 

West.  L.  J.  or  West.  Law  Jour.  Western  Law  Jour- 
nal,   Cincinnati,    Ohio. 

West.  L.  Mo.  or  West.  Law  Mo.  Western  Law 
Monthly,    Cleveland,   Ohio. 

West.  L.  O.    Western  Legal  Observer,  Quincy,   111. 


ABBREVIATION 


83 


ABBREVIATION 


West.  L.  T.    Western  Law  Times. 

West.  Leg.  Obs.  Western  Legal  Observer,  Quin- 
cy,  111. 

West.  Rep.    Western  Reporter,  St.   PauL 

West  Symb.    West's    Symbol-eographie. 

West.  T.  Cas.    Western's   Tithes   Cases. 

West  t.  H.  West's  Reports,  English  Chancery 
tempore  Hardwicke. 

West  Va.    West  Virginia;— West  Virginia  Reports. 

Westl.  Priv.  Int.  Law  or  Westlakc  Int.  Private 
Law.    Westlake's    Private    International    Law. 

Westm.    Statute   of   Westminster. 

Westm.  Rev.    Westminster  Review. 

Weston.    Weston's    Reports,    vols.    11-14    Vermont 

Weth.  (V.  C).  Wethey's  Upper  Canada  Reports, 
Queen's   Bench. 

Wh.  vVheaton'a  United  States  Supreme  Court  Re- 
ports ; — Wharton's  Pennsylvania  Reports;— Wheel- 
er's   New    York   Criminal    Reports. 

Wh.  Cr.  Cas.  Wheeler's  Criminal  Cases,  New 
York. 

Wh.  d  T.  L.  C.  or  Wh.  d  T.  L.  Cas.  White  and  Tu- 
dor's  Leading  Cases,  Equity. 

Whar.    Wharton's  Pennsylvania  Reports. 

Whar.  Dig.    Wharton's   Digest,   Pennsylvania. 

Whar.  St.  Tr.  Wharton's  State  Trials,  United 
States. 

Whart.    Wharton's   Reports,  Pennsylvania. 

Whart.  Ag.    Wharton  on  Agency  and  Agents. 

Whart.  Confl.    Wharton  on  Conflict  of  Laws. 

Whart.  Conv.    Wharton's  Conveyancing. 

Whart.  Cr.  Law  or  Whart.  Critn.  Law.  Wharton's 
Criminal    Law. 

Whart.  Ev.    Wharton  on  Evidence  in  Civil  Issues. 

Whart.  Horn.    Wharton    on    Homicide. 

Whart.  Law  Die.  or  Whart.  Lex.  Wharton's  Law 
Lexicon. 

Whart.  Neg.    Wharton  on  Negligence. 

Whart.  (Pa.).    Wharton's    Pennsylvania     Reports. 

Whart.  Prec.  Wharton's  Precedents  of  Indict- 
ments. 

Whart.  St.  Tr.  or  Whart.  State  Tr.  Wharton's 
State  Trials  of  the  United  States. 

Whart.  d  S.  Med.  Jur.  or  Whart.  &  St.  Med.  Jur. 
Wharton   &   Stillo's   Medical    Jurisprudence. 

Wheat.  Wheaton's  United  States  Supreme  Court 
Reports. 

Wheat.  Cap.  d  Pr.  Wheaton  on  Maritime  Captures 
and    Prizes. 

Wheat.  Hist.  L.  of  N.  or  Wheat.  Hist.  Law  Nat. 
Wheaton's  History  of  the  Law  of  Nations. 

Wheat.  Int.  L.  or  Wheat.  Int.  Law.  Wheaton's  In- 
ternational   Law. 

Wheel.  Wheeler's  New  York  Criminal  Cases  ;— 
Wheelock's  Reports,  vols.  32-37  Texas. 

Wheel.  Abr.     Wheeler's  Abridgment. 

Wheel.  Br.  Cas.     Wheeling   Bridge  Case. 

Wheel.  Cr.  C.  or  Wheel.  Cr.  Cas.  or  Wheeler,  Cr. 
Cas.    Wheeler's  Criminal  Cases,  New  York. 

Wheel.  Cr.  Rec.  Wheeler's  Criminal  Recorder, 
New   York,    vol.    1   Wheeler's   Criminal    Cases. 

Whish.  L.  D.     Whishaw's    Law    Dictionary. 

Whishaw.     Whishaw's    Law    Dictionary. 

Wliit.  Eq.  Pr.    Whitworth's  Equity  Precedents. 

Whit.  Pat.  Cas.  Whitman's  Patent  Cases,  United 
States. 

Whit.  War  P.  Whiting  on  War  Powers  under  the 
Constitution. 

Whitak.  Liens.    Whitaker    on    Liens. 

White.  White's  Reports,  vols.  10-15  West  Virginia; 
—White's  Reports,  vols.  30-40  Texas  Court  of  Ap- 
peals ;—  White,   Scotch   Justiciary    Reports. 

White,  Coll.  White's  New  Collection  of  the  Laws, 
etc.,   of   Great   Britain,   France   and   Spain. 

White  L.  L.    White's  Land  Law  of  California. 

White,  New  Recop.  or  White  Nov.  Recop.  See 
White,    Recop. 

White  Rec.  or  White,  Recop.  White,  New  Recop- 
ilacion.  A  New  Collection  of  Laws  and  Local  Or- 
dinances of  Great  Britain,  France,  and  Spain,  Re- 
lating to  the  Concessions  of  Land  in  Their  Re- 
spective Colonies,  with  the  Laws  of  Mexico  and  Tex- 
as on   the  Same   Subjects. 

While  Supp.     White   on   Supplement    and    Revivor. 

White  <£  T.  L.  Cas.  White  &  Tudor's  Leading  Cases 
in  Equity. 


White  d  W.  White  &  Willson's  Reports,  vol.  142 
Texas  Civil  Appeals. 

Whitm.  Lib.  Cas.  Whitman's  Massachusetts  Libel 
Cases. 

Whitm.Pat.Caa.     Whitman's  Patent  Cases. 

Whitm.  Pot.  L.    Whitman'-   P   I 

Whitman's  Patent  Law  Re- 
view,   Washington,   D.  C. 

Whitney.     Whitney's  Land  Laws,  Tennessee. 

Whitt.     W;  Reports,  vols.  31-41  Missouri. 

Whitt.  Co.     Whittaker'e  Codes,  Ohio. 
•:ram  on  Discovery. 
Wills      Wigram  on  Wills. 

Wight,  or  Wightw.  Wightwick's  English  Excheq- 
uer   Ri  ports. 

Wight  LI.  Cos.     Wight's   Election    Cases,   Scotland. 

Wil.      Williams    (see    Will.)  ;— Wilson    (see    \ 

Wile.    Wilcox's  Reports.  Ohio. 

Wile.  Cond.    Wilcox's  Condensed  Reports,  Ohio. 

Wile.  Mun.  Corp.  Wilcox  on  Municipal  Corpora- 
tions. 

r.     Wilcox's  Reports,  vol.  10  Ohio  ;— Wilcox, 
Pennsylvania. 

H       ox  Cond.    Wilcox,  Condensed  Ohio   Reports. 
I.  Int.  L.      Wildman's     International     Law. 

Wild.  S.  C.  d  P.  Wildman  on  Search,  Capture  and 
Prize. 

Wilde  Sup.  Wilde's  Supplement  to  Barton's  Con- 
veyancing. 

Wildm.  Int.  Law.   Wildman's  International  Law. 

Wilk.  Wilkinson's  Texas  Court  of  Appeals  and 
Civil  Appeals  ;— Wilkinson's  Reports,  Australia. 

Wilk.  Leg.  Ang.  Sax.  Wilkins's  Leges  Anglo-Sax- 
onica?. 

Wilk.  Lim.     Wilkinson  on  Limitations. 

Wilk.  P.  & M.  Wilkinson,  Paterson  and  Murray's 
Reports,    New   South   Wales. 

Wilk.  Prec.  Wilkinson's  Precedents  in  Convey- 
ancing. 

Wilk.  Pub.  Funds.  Wilkinson  on  the  Law  Relat- 
ing to  Public  Funds. 

Wilk.  Repl.    Wilkinson   on   Replevin. 

Wilk.  Ship.     Wilkinson  on   Shipping. 

Wilk.  d  Mur.  or  Wilk.  d  Ow.  or  Wilk.  d  Pat 
Wilkinson,  Owen,  Paterson  &  Murray's  New  South 
Wales  Reports. 

Will.     Willes's  English  Common  Pleas  Reports  ;— 
Willson's    Reports,    vols.    29-30    Texas   Appeal 
vols.  1,  2  Texas  Civil  Appeals  ;— Williams  on  Execu- 
tors ;— See,   also,  Williams. 

Will.  Ann.  Reg.  Williams's  Annual  Register,  New 
York. 

Will.  Auct.    Williams  on  the  Law  of  Auctions. 

Will.  Bankt.  L.     Williams   on    the   Bankrupt   Law. 

Will. -Bund  St.  Tr.  Willis-Bund's  Cases  from  State 
Trials. 

Will.  Just.     Williams's  Justice. 

Will.  L.  D.    Williams's  Law  Dictionary. 

Will.  (Mass.).  Williams's  Reports,  Massachusetts 
Reports,   vol.   1. 

Will.  P.  or  Will.  (Pcere).  Peere-Williams's  Eng- 
lish Chancery   Ret 

Will.  Per.  Pr.    Williams  on  Personal  Property. 

Will.  Real  As.     Williams   on   Real  Assets. 

Will.  Real  Pr.     Williams   on   Real   Property. 

Will.  Saund.  Williams's  Notes  to  Saunders's  Re- 
ports. 

Will.  (Vt.).     Williams's   Reports.   Vermont. 

Will.,  Wall.  &  Dav.  Willmore,  Wollaston  &  Davi- 
son's English  Queen's  Bench  Reports. 

Will.,  Woll.  &  Uodg.  Willmore.  Wollaston  &  Hodg- 
es,  English   Queen's   Bench   Repo. 

Will,  d  Br.  Adm.  Jur.  Williams  and  Bruce  on  Ad- 
miralty Jurisdiction. 

Willard  Eq.     Willard's  Equity. 

Willar&Ex.     Willard  on   Executors. 

J  Real  Est.  d  Con.       Willard's     Real     Estate 
and  Conveyancing. 

.  Const.     Willcock,  The  Office  of  Constable. 

Willc.  L.Med.  Pr.  Willcock'a  Law  Relating  to  the 
Mi  dical   Profession. 

W  lie  .  or   WUlCoek,  Mun.   Corp.     Will- 

cock  on  Municipal  Corporations. 

Willes.  Will' ■ 's  Reports,  English  King'*  Bench 
and  Common   Pleas. 


ABBREVIATION 


84 


ABBREVIATION 


Williams.  Peere-Williams's  English  Chancery  Re- 
ports ;— Williams's  Reports,  vols.  27-29  Vermont  ;— 
Williams's  Reports,  vol.  1  Massachusetts ;— Wil- 
liams's  Reports,    vols.    10-12   Utah. 

Williams,  Common.     Williams  on  Rights  of  Com- 
mon. 
Williams,  Ex'rs.    Williams  on  Executors. 
Williams  P.  or  WilliamSj  Peere.    Peere  Williams's 
Reports,  English  Chancery. 

Williams,  Pers.  Prop.  Williams  on  Personal  Prop- 
erty. 

Williams,  Satind.     Williams's  Notes  to  Saunders's 
Reports. 
Williams,  Seis.     Williams   on   Seisin. 
Williams  a.-  B.  Adm.  Jur.    Williams  &  Bruce  on  Ad- 
miralty Jurisdiction. 
Willis  Eq.     Willis  on   Equity   Pleadings. 
Willis  Int.     Willis  on   Interrogatories. 
Willis  Trust,  or  Willis,  Trustees.     Willis   on   Trus- 
tees. 

Willtn.W.&D.  Willmore,  Wollaston  and  Davi- 
son's   Reports,    English    Queen's   Bench. 

Willm.  W.  &  H.  Willmore,  Wollaston  &  Hodges's 
English  Queen's  Bench  Reports. 

Wills  Cir.  Ev.  or  Wills,  Circ.  Ev.  Wills  on  Circum- 
stantial Evidence. 

Willson.  Willson's  Reports,  vols.  29-30  Texas  Ap- 
peals, also  vols.  1,  2  Texas  Court  of  Appeals,  Civil 
Cases. 

Wilm.  or  Wilm.  Op.  or  Wilm.  Judg.  Wilmot's 
Notes  of  Opinions  and  Judgments,  English  King's 
Bench. 

Wils.      Wilson's    Reports,    English    King's    Bench 
and  Common  Pleas. 
Wils.  (Cal.).  Wilson's  Reports,   California. 
Wils.  Ch.     Wilson's  Reports,  English  Chancery. 
Wils.  Ent.     Wilson's  Entries  and  Pleadings   (same 
as  vol.  3  Lord  Raymond). 
Wils.  Exch.    Wilson's  Reports,  English  Exchequer. 
Wils.  Fines  &  Bee.     Wilson   on    Fines    and    Recov- 
eries. 

Wils.  (Ind.).  Wilson's  Indiana  Superior  Court  Re- 
ports. 

Wils.  Ind.  Gloss.  Wilson,  Glossary  of  Indian 
Terms. 

Wils.  K.  B.  Sergeant  Wilson's  English  King's 
Bench   Reports. 

Wils.  (Oreg.).    Wilson's   Reports,  Oregon. 
Wils.  Pari.  L.    Wilson's    Parliamentary    Law. 
Wils.  Uses.    Wilson  on    Uses. 

Wils.  &  C.  or  Wils.  &  Court.  Wilson  and  Courte- 
nay's  Reports,  English  House  of  Lords,  Appeals 
from  Scotland. 

Wils.  &  S.  or  Wils.  d  Sh.  Wilson  and  Shaw's  Re- 
ports, English  House  of  Lords,  Appeals  from  Scot- 
land   (Shaw,  Wilson  &    Courtenay). 

Wilson.  Wilson's  English  Common  Pleas  Reports; 
—Wilson's  English  Chancery  Reports;— Wilson's 
English  Exchequer  Equity  Reports  ; — Wilson's  In- 
diana Superior  Court  Reports ;— Wilson's  Reports, 
vols.  1,  3  Oregon ;— Wilson's  Reports,  vols.  48-59 
Minnesota. 

Win.    Winston's   Law   Reports,  North   Carolina;— 
Winch's    English    Common  Pleas   Reports. 
Win.  Ent.    Winch's  Entries. 

Win.  Eq.    Winston's  Equity  Reports,   North   Caro- 
lina. 
Winch.    Winch's  Reports,  English  Common  Pleas. 
Wing,  or  Wing.  Max.    Wingate's  Maxims. 
Wins.    Winston's    Reports,    North   Carolina. 
Wins.  Eq.    Winston's   Equity  Reports,   North  Car- 
olina. 

Winst.  or  Winst.  Eq.    Winston's     Law     or     Equity 
Reports,    North   Carolina. 
Wis.    Wisconsin;— Wisconsin    Reports. 
Wis.  Bar  Assn.    Wisconsin    State   Bar  Association. 
Wis.  Leg.  N.    Wisconsin    Legal    News,    Milwaukee. 
With.    Withrow's  Reports,   Iowa. 
With.  Corp.  Cas.    Withrow's     American     Corpora- 
tion Cases. 
Withrow.    Withrow's  Reports,  vols.  9-21  Iowa. 
Wkly.  Notes  Cas.  (Pa.).    Weekly    Notes    of    Cases, 
Philadelphia,  Pennsylvania. 

Wm.  Bl.  William  Blackstone's  Reports,  English 
Courts. 


Wm.  Rob.    William     Robinson's     New     Admiralty 
Reports,    English. 

Wins.    Williams  (see  Will.). 

Wms.  Ann.  Reg.    Williams's  Annual  Register,  New 
York. 

Wms.  Auct.    Williams  on  the  Law  of  Auctions. 

Wms.  Ex.    Williams   on  Executors. 

Wma.  Just.    Williams's    Justice. 

Wms.  L.  D.    Williams's    Law   Dictionary. 

Wms.  (Mass.).    Williams's  Reports,  Massachusetts 
Reports,  vol.  L 

Wins.  Notes.    Williams's    Notes   to   Saunders'    Re- 
ports. 

Wms.  P.  or  Wms.  Peere.    Peere      Williams's      Re- 
ports,  English  Chancery. 

Wms.  Peere.    Peere-Williams's    English    Chancery 
Reports. 

Wms.  Per.  Pr.    Williams   on    Personal    Property. 

Wms.  Real  As.    Williams  on   Real   Assets. 

Wms.RealPr.    Williams  on   Real    Property. 

Wm  i.  Saund.    Williams's   Notes   to   Saunders'   Re- 
ports. 

Wms.Vt.    Williams's  Reports,  vols.  27-29  Vermont 

Wms.  d-  Br.  Adm.  Jur.    Williams     and     Bruce     on 
Admiralty   Jurisdiction. 

Wol.    Wollaston's   English    Bail    Court    Reports; — 
Wolcott's  Reports,  vol.   7  Delaware  Chancery- 

Wolf.  Inst.    Wolfflus's   Institutiones   Juris   Naturae 
et   Gentium. 

Wolf.  <&  B.    Wolferstan     and     Bristow's     Election 
Cases. 

Wolf.  &  D.    Wolferstan  and  Dew's  Election  Cases. 

Wolff,  Dr.  de  la  Nat.    Wolffius,  Droit  de  la  Nature. 

Wolff.  Inst,  or  Wolff.  Inst.  Nat.    Wolffius,      Institu- 
tiones  Juris    Naturse   et   Gentium. 

Wolffius  or  Wolffius,  Inst.    Wolffius,   Institutiones 
Juris  Naturae  et  Gentium. 

Woll.    or    Woll.    P.    C.    Wollaston's    English    Bail 
Court   Reports   (Practice   Cases). 

Wood.    Woods's  United   States   Circuit  Court   Re- 
ports;—Wood's   English  Tithe  Cases. 

Wood  Civ.  L.    Wood's  Institutes  of  the  Civil  Law. 

Wood  Com.  L.    Wood's    Institutes  of   the    Common 
Law. 

Wood  Conv.    Wood  on  Conveyancing. 

Wood  Deer.    Wood's   (Decrees  in)   Tithe  Cases. 

Wood  Fire  Ins.    Wood  on  Fire  Insurance. 

Wood  (H.).    Hutton  Wood's  Decrees  in  Tithe  Cas- 
es, English. 

Wood,  Ins.    Wood  on 'Fire  Insurance; — Wood's  In- 
stitutes of  English  Law. 

Wood,  Inst,  or  Wood,  Inst.  Com.  Law.    Wood's  In- 
stitutes of  the  Common  Law. 

Wood  Inst.  Eng.  L.    Wood's    Institutes    of    English 
Law. 

Wood.  Lect.    Wooddeson's    Lectures    on    Laws    of 
England. 

Wood  Man.    Wood  on    Mandamus. 

Wood  Mast.  &  St.    Wood    on    Master   and    Servant. 

Wood  Mayne  Dam.    Wood's    Mayne    on    Damages. 

Wood  Nuis.    Wood   on   Nuisances. 

Wood  Ti.  Cas.    Wood's  Tithe  Cases. 

Wood.  &  M.  or  Woodb.  &  M.    Woodbury  &  Minot's 
United  States  Circuit  Court  Reports. 

Woodd.  Jur.    Wooddeson's    Elements   of    Jurispru- 
dence. 

Woodd.  Lect.    Wooddeson's  Lectures  on   the   Laws 
of   England. 

Woodf.  Cel.  Tr.    Woodfall's   Celebrated    Trials. 

Woodf.  L.  &  T.  or  Woodf.  Landl.  &  Ten.    Woodfall 
on    Landlord   and    Tenant. 

Woodf.  Pari.  Deb.    Woodfall's    Parliamentary    De- 
bates. 

Woodm.  Cr.  Cas.    Woodman's  Reports  of  Thacher's 
Criminal    Cases,    Massachusetts. 

Woodm.  &  T.  on  For.  Med.    Woodman   and  Tidy  on 
Forensic   Medicine. 

Woods   or   Woods   C.   C.    Woods's  Reports,  United 
States   Circuit   Courts,  5th   Circuit. 

Woodw.  Dec.  Pa.    Woodward's   Common  Pleas   De- 
cisions, Pennsylvania. 

Wool.    Woolworth's    United    States    Circuit    Court 
Reports  ;— Woolrych. 

Wool.  C.  C.    Woolworth's    Reports,    United    States 
Circuit   Courts,   8th   Circuit  (Fuller's   Opinions). 

Woolr.  Com.    Woolrych  on  Commons. 


ABBREVIATION 


^ 


ABBREVIATION 


Woolr.  Comm.  L.    Woolrycb   on    Commercial    Law. 
Woolr.  P.  W.    Woolrych  on   Party    Walls. 
Wo  ■'>> .  Set*.    Woolrych  on  Sew 

.  Waters.    Woolrych   on    Law   of   Waters. 
Woolr.  Ways.    Woolrych  on  Law   of  Ways. 
Woolr.  Window  L.    Woolrych   on   Law    of    Window 
.  Lights. 

Wools.  Div.    Woolsey  on   Divorce. 
Wools.  Int.  L.    Woolsey's  International   Law. 
Wools.    Pol.    Science   or    Woolsey,   Polit.   Science. 
Woolsey's   Political  Science. 

Woolw.  Woolworth's  United  States  Circuit  Court 
Reports ;— Woolworth's  Reports,   vol.  1   Nebn 

Worcester.  Worcester,  Dictionary  of  the  English 
Language. 

rd.  Elect.    Wordsworth's   Law  of   Election. 
Word.  is.  or   Words.  Elect.  Cos.    Words- 

worth's  Election   Cases. 

d.  Min.    Wordsworth  on  the  Law  of  Mining. 
it.Jur.    Worthington   on    the    Powers    of    Ju- 
ries. 

Worth.  Prec.  Wills.  Worthington's  Precedents  for 
Wills. 

Wr.    Wright      (see     Wright) ;— Wright's     Reports, 
vols.  37-50  Pennsylvania   State. 
Wr.  Ch.    Wright's    Chancery    Reports,    Ohio. 
Wr.  Cr.  Consp.    Wright  on   Criminal   Conspiracies. 
Wr.N.P.    Wright's  Nisi   Prlus    Reports,   Ohio. 
Wr.  Ohio.    Wright's  Chancery    Reports,   Ohio. 
Wr.  Pa.    Wright's     Reports,     Pennsylvania     State 
Reports,   vols.  37-50. 
Wr.  Ten.    Wright  on  Tenures. 

Wri.  or  Wrii/lit.    Wright's      Reports,      vols.      37-50 
Pensylvania   State;— Wright's   Ohio   Reports. 
Wright  N.  P.    Wright's   Nisi   Prius   Reports,   Ohio. 
Wright,  Ten.    Wright   on    Tenures. 

Wyoming;  —  Wyoming  Reports;  —  Wythe's 
Virginia    Chancery    Reports. 

Wy.  Die.    Wyatt's    Dickens's    Chancery    Reports. 
Wyatt  P.  R.    Wyatt's  Practical   Register  in  Chan- 
cery. 

Wyatt,  W.  d  A'B.  Wyatt,  Webb  and  A'Beckett's 
Reports,    Victoria. 

Wyatt,  W.  d  A'B.  Eq.  Wyatt,  Webb  and  A'Beck- 
ett's   Equity    Reports,   Victoria. 

Wyatt,  W.  d  A'B.  I.  P.  d  M.  Wyatt,  Webb  and 
A'Beckett's  Insolvency,  Probate  and  Matrimonial 
Reports,    Victoria. 

Wyatt,  W.  d  A'B.  Min.    Wyatt,  Webb  and   A'Beck- 
ett's  Mining  Cases,  Victoria. 
Wyatt  d  W.    Wyatt  and"  Webb's  Reports,  Victoria. 
Wyatt  d \W.  Eq.    Wyatt    and    Webb's    Equity    Re- 
ports, Victoria. 

Wyatt  d  W.  I.  P.  d  M.    Wyatt    and    Webb's    Insol- 
vency,  Probate   and  Matrimonial   Reports,    Victoria. 
Wyatt  d  W.  Min.    Wyatt  &  Webb's   Mining   Cases, 
Victoria. 

Wyatt  d  Webb.  Wyatt  &  Webb's  Reports,  Vic- 
toria. 

Wym,  or  Wyman.    Wymau's    Reports,     India. 
Wyn.  or  Wynne,  or  Wynne  Bov.    Wynne's  Bovill's 
Patent  Cases. 

Wyo.     Wyoming ;— Wyoming    Reports. 
Wyo.  T.     Wyoming  Territory. 

W,/the  or  Wythe  Ch.    Wythe's    Virginia    Chancery 
Reports. 
Y.     Yeates's  Pennsylvania  Reports. 
Y.  J:.     Year  Book,  English  King's  Bench,  etc. 
y.  B.  Ed.  I.     Year  Books  of  Edward  I. 
Y.B.P.  l.Edw.ll.      Year    Books,    Part   1,    Edward 
II. 
Y.  B.  S.  C.     Year  Books,   Selected  Cases,  1. 
y.  L.  R.     York   Legal   Record. 

y.  d  C.  Younge  &  Collyer's  English  Chancery  or 
Exchequer  Reports. 

7.  d  C.  C.  C.  Younge  and  Collyer's  Chancery  Cas- 
es,  English. 

y.  d  J.  Younge  &  Jervis's  English  Exchequer  Re- 
ports. 

lr.  d  J.    Younge  and  Jervis's  Reports,  English  Ex- 
chequer. 
Yale  Law  J.     Yale  Law  Journal. 
Yates  Sel.  Cas.     Yates's  New  York  Select  Cases. 
Yea.     Yeates's  Pennsylvania  Reports. 
Yearb.    Year   Book,   English  King's   Bench,  etc. 


Yearb.  P.  7,  Ucn.  VI.      Year    Books,    Part   7, 
ry   VI. 

Ycatcs.     Yeates's   Reports,  Pennsylvania. 

Yel.  or  Yclv.      Yelverton's    English    King's 
Reports. 

Yerg.     Yerger's  Tennessee  Reports. 

Yo.    Young  (see  You.). 

1'ooJ  Waste.     Yool  on  Waste,  Nuisance  and 
pass. 

Yurk  Ass.     Clayton'.  <  York  Assizes). 

York  Leg.  Rcc.    York  nl. 

You.      Younge's    English    Exchequer    Equity    Re- 
ports. 

You.  d  Coll.  Ch.    Younge  &  Collyer's  English  Chan- 

You.  d  Coll.  Ex.    Younge   &    Collyer's    Engli: 
y   Reports. 

You.  dJerv.    Younge  &  Jervis's  English  Exchequer 
Reports. 

Young.    Young's  Reports,  vols.  31-47  '.-' 

Young  Adin.      Young's     Nova     Scotia     Ad 
Cases. 

Young  Adm.  Dec.    Young's  Admiralty  Decisions. 

flf.  L.  Cas.     Young's    Maritime    Law    Cases, 
Englii  U. 

Young,  Naut.  Diet.    Young,  Nautical  Dictionary. 

Younge.     Younge's  English  Exchequer  Equity  Re- 
ports. 

Younge  d  Coll.      Younge    and    Collyer's     Reports, 
English  Exchequer  Equity. 

Younge  d  Coll.  Ch.    Younge's    fi    Collyer's    English 
Chancery  Cases. 

Younge  d  Coll.  Ex.      Younge    &    Collyer's    English 
Exchequer  Equity  Reports. 

e  d  J.  or    Younge  d  Jr.    Younge  &   JerVis, 
English  Exchequer. 

Yuk.    Yukon  Territory. 

Zab.    Zabriskie's  New  Jersey  Law  Reports. 

Zach.  Dr.  Civ.    Zachariae   Droit  Civil   Francals. 

Zone.     Zane's   Reports,  vols.  4-9   Utah. 

Zinn  Co.  Tr.      Zinn's    Select  Cases   in    the   Law  of 
Trusts. 

Zinn,L.C.    Zinn's  Leading  Cases  on  Tr>i 

Z ouch  Adm.     Zouch's   Admiralty   Jurisdiction. 

ABBREVIATORS.     Eccl.   Law.     Ofl 
whose  duty  it  is  to  assist  In  drawing  up  the 
Pope's    briefs,    and    reducing    petitions    Into 
proper    form,    to    be    converted    into    Papal 

Hulls. 

ABBROCHMENT.     Old      Eng.      Law.     The 
forestalling  of  a  market  or  fair. 
ABBUTTALS.     See  Abuttals. 

abdication.  A  simple  renunciation  of 
an  office;  generally  understood  of  a  supreme 
office. 

James  II.  of  England,  Charles  V.  of  Germany, 
and  Christiana.  Queen  of  Sweden,  are  said  to  have 
abdicated.  When  James  II.  of  England  left  the 
kingdom,  the  Commons  voted  that  he  had  aba 
the  government,  and  that  thereby  the  throne  had 
become  vacant.  The  House  of  Lords  preferred  the 
word  deserted:  but  the  Commons  thought  it  not 
comprehensive  enough,  for  then  the  king  might 
have  the   liberty   of   returning. 

It  was  also   declared  that  abdication   meant  more 
■sertion    and    amounted    to    a    forfeiture    by 
acts   and  deeds   of   whir'  n    part. 

In  England,   the  constitutional   relation  between   Un- 
crown   and    the    nation  the    nature    of   a 

;,  the  king  cann  i  without  th( 

sent  of  parliament.     The  House  of  Lords  finally  as- 
sented  to  the  word   abdicate. 

ABDITORIUM.  An  abditory  or  hiding 
place,  to  hide  and  preserve  goi  ds,  p 

Jacob. 
ABDUCTION.      Forcibly    taking    away     a 
man's  wife,    his  obild,  or  his  ward. 
Com.  139-141;   Slate  v.  George,  93  N.  ( 


ABDUCTION 


86 


ABDUCTION 


The  unlawful  taking  or  detention  of  any 
female  for  purposes  of  marriage,  concubin- 
age, or  prostitution.     4  Steph.  Com.  84. 

In  many  states  this  offence  is  created  by 
statute  and  in  most  cases  applies  to  females 
under  a  given  age.  The  definitions  of  the 
crime  differ  in  terms,  but  not  in  general  re- 
sults. They  usually  forbid  the  taking  away 
or  detaining  or  enticing  of  a  female  under  a 
specified  age,  for  purposes  of  concubinage  or 
prostitution.  In  Minnesota  the  taking  away 
for  the  purpose  of  marriage  under  the  age  of 
15  is  forbidden;  and  the  statute  is  valid  al- 
though some  females  are  authorized  by  the 
law  of  that  state  to  marry  at  that  age ;  State 
v.  Sager,  99  Minn.  54,  108  N.  W.  812. 

The  important  element  of  the  offence  is  the 
taking  for  the  unlawful  purpose,  which  is 
accomplished  when  the  female  is  removed 
from  the  custody  of  parents  or  others  having 
control  of  her,  by  means  of  any  device,  en- 
ticement or  persuasion;  State  v.  Tucker,  72 
Kan.  481,  84  Pac.  126.  Unlawful  detention 
and  intention  of  having  carnal  knowledge 
are  the  necessary  facts;  Com.  v.  Littrell,  4 
Ky.  L.  Rep.  251. 

In  some  states  the  fact  that  a  female  tak- 
en for  concubinage  was  not  chaste  is  no  de- 
fence; State  v.  Johnson,  115  Mo.  4S0,  22  S. 
VY*.  463;  People  v.  Dolan,  96  Cal.  315,  31  Pac. 
107;  the  law  presumes  a  woman's  previous 
life  to  have  been  chaste,  and  the  burden  of 
proof  to  show  otherwise  rests  on  the  de- 
fendant; Slocum  v.  People,  90  111.  274;  Peo- 
ple v.  Parshall,  6  Park.  Cr.  (N.  Y.)  129 ;  Car- 
penter v.  People,  8  Barb.'  (N.  Y.)  603;  State 
v.  Jones,  191  Mo.  653,  90  S.  W.  465 ;  State  v. 
Bobbst,  131  Mo.  32S,  32  S.  W.  1149. 

The  offence  is  complete  when  there  is  a 
criminal  intent  at  the  time  of  the  taking 
away,  though  there  may  be  a  subsequent 
purpose  to  marry;  State  v.  Adams,  179  Mo. 
334,  78  S.  W.  588;  State  v.  Sager,  99  Minn. 
54,  108  N.  W.  812. 

Ignorance  of  the  girl's  age  is  no  defence; 
Riley  v.  State  (Miss.)  18  South.  117;  Tores 
v.  State  (Tex.  Cr.  App.)  63  S.  W.  880;  nor  is 
her  request;  Griffin  v.  State,  109  Tenn.  17,  70 
S.  W.  61;  State  v.  Bussey,  58  Kan.  679,  50 
Pac.  891 ;  nor  that  he  believed  and  with  good 
reason  that  she  was  over  the  statutory  age; 
L.  R.  2  C.  C.  154 ;  Beckham  v.  Nacke,  56  Mo. 
546;  State  v.  Ruhl,  8  la.  447 ;  nor  the  early 
abandonment  of  the  relation  and  the  return 
of  the  girl  to  her  father  with  the  man's  as- 
sistance; State  v.  Neasby,  1S8  Mo.  467,  87  S. 
W.  468.  It  must  appear  that  it  was  against 
her  will;  Hoskins  v.  Com.,  7  Ky.  L.  Rep.  41; 
State  v.  Hromadko,  123  la.  665,  99  N.  W. 
560. 

It  is  stated  to  be  the  better  opinion,  that 
if  a  man  marries  a  woman  under  age,  with- 
out the  consent  of  her  father  or  guardian, 
that  act  is  not  indictable  at  common  law; 
but  if  children  are  taken  from  their  parents 
or  guardians,  or  others  intrusted  with  the 
care  of  them,  by  any  sinister  means,  either 


by  violence,  deceit,  conspiracy,  or  any  cor- 
rupt or  improper  practices,  as  by  intoxica- 
tion, for  the  purpose  of  marrying  them, 
though  the  parties  themselves  consent  to  the 
marriage,  such  criminal  means  will  render 
the  act  an  offence  at  common  law;  1  East," 
PI.  Cr.  458;  1  Rus.  Cr.  902;  Rose.  Cr.  Ev. 
260. 

A  mere  attempt  to  abduct  is  not  sufficient ; 
People  v.  Parshall,  6  Park.  Cr.  (N.  Y.)  129. 

Solicitation  or  inducement  is  sufficient, 
and  the  taking  need  not  be  by  force ;  People 
v.  Seeley,  37  Hun  (N.  Y.)  190;  Slocum  v. 
People,  90  111.  274;  People  v.  Carrier,  46 
Mich.  442,  9  N.  W.  487. 

The  remedy  for  taking  away  a  man's  wife  was 
by  a  suit  by  the  husband  for  damages,  and  the 
offender  was  also  answerable  to  the  king;  3  Bla. 
Com.   139. 


See  Kidnapping  ;  Entice  ;  and  as  to 
whether  criminals  abducted  from  another 
state  may  be  prosecuted,  see  Fugitive  Faoii 
Justice  ;   Extradition. 

Civil    Action.    At  common  law   the  father 
had  no  right  of  civil  action  for  the  abduc- 
tion of  a  child,  except  in  case  of  the  heir,  in 
which  case  there  was  an  action  because  of 
the  interest  in  his  marriage ;    Cro.  Eliz.  770 ; 
but  afterwards  the  right  of  action  was  sus- 
tained upon  the  theory  of  loss  of  services ;   1 
Wood.  Lect.  270;    3  Bla.  Com.  140;    and  on 
that  ground  it  has  been  generally  recognized 
in  this  country ;    Caughey  v.  Smith,  47  N.  Y. 
244;    Wodell  v.   Coggeshall,  2  Mete.  (Mass.) 
89,  35  Am.  Dec.  391 ;    Hills  v.  Hobert,  2  Root 
(Conn.)  48;    Plummer  v.  Webb,  4  Mas.  380, 
Fed.  Cas.  No.  11,233;    Cutting  v.  Seabury,  1 
Sprague   522,  Fed.  Cas.  No.  3,521;    Steele  v. 
Thacher,  1  Ware  (Dav.  91)  85,  Fed.  Cas.  No. 
13,348;    Kirkpatrick    v.    Lockhart,    2    Brev. 
(S.  C.)  276 ;   and  the  action  lies  by  one  stand- 
ing in  loco  parentis,  as  the  grandfather  of  an 
illegitimate  child  who  has  assumed  the  care 
of   it;     Moritz   v.   Garnhart,   7   Watts   (Pa.) 
302,  32  Am.  Dec.  762.     The  proper  form  of 
action  is  in  some  states  held  to  be  trespass 
on  the  case;    Sargent  v.  Mathewson,  38  N. 
H.  54;    Jones  v.  Tevis,  4  Lift.  (Ky.)  25,  14 
Am.  Dec.  98;  in  others,  trespass  vi  et  armis; 
Yaughan  v.  Rhodes,  2  McCord  (S.  C.)  227,  13 
Am.  Dec.  713;   Schoul.  Dom.  Rel.  354.     Ex- 
emplary damages  may  be  recovered;    Magee 
v.  Holland,  27  N.  J.  L.  86,  72  Am.  Dec.  341 ; 
Stowe  v.  Heywood,  7  Allen  (Mass.)  118;  and 
mental  pain  inflicted  on  the  child   may   be 
considered;    Brown  v.  Crockett,  8  La.  Ann. 
30.     It  is  no  defence  that  the  abducted  girl 
and  her  whole  family  were  of  loose  and  im- 
moral character;   Dobson  v.  Cothran,  34  S. 
C.  518.  13  S.  E.  679.    The  right  of  action  of 
the  mother  after  the  death  of  the  father  has 
been  doubted,  but  is  said  to  be  sustained  by 
the  better  opinion ;   13  Am.  Dec.  716,  n. ;    see 
also  Com.  v.  Murray.  4  Bin.  (Pa.)  487,  5  Am. 
Dec.  412;    Coon  v.  Moffet,  3  N.  J.  Law    583, 
4  Am.  Dec.  405. 

ABEARANCE.     Behavior;    as    a    recogni- 


ABEARANCE 


87 


ANCE 


zance  to  be  of  good  abearance,  signiGes  to  be 
of  good  behavior.  4  Bla.  Com.  251,  256.  See 
Penna.  Register  377,  where  William  Penn, 
sitting  judicially,  used  the  term. 

ABEREMURDER.  In  Old  Eng.  Law.  An 
apparent,  plain,  or  downright  murder,  it 
was  used  to  I'Lstiuguish  a  wilful  murder  from 
chance-medley,  or  manslaughter.  SpeL;  Cow- 
ell;    Blount. 

ABET.  To  encourage  or  set  another  on  to 
commit  a  crime.  This  word  is  always  ai>- 
plied  to  aiding  the  commission  of  a  crime. 
To  abet  another  to  commit  a  murder,  Is  to 
command,  procure,  or  counsel  him  to  commit 
it.  Old  Nat.  Brev.  21;  Co.  Litt.  475.  See 
Aiding  and  Abetting. 

ABETTOR.  An  instigator,  or  setter  on; 
one  who  promotes  or  procures  the  commis- 
sion of  a  crime.     Old  Nat.  Brev.  21. 

The  distinction  between  abettors  and  accessaries 
is  the  presence  or  absence  at  the  commission  of  the 
crime ;  Cowell ;  Fleta,  lib.  1,  cap.  34.  Presence  and 
participation  are  necessary  to  constitute  a  person 
an  abettor;  4  Sharsw.  Bla.  Com.  33;  Russ.  &  R. 
99;  9  Bingh.  N.  C.  440;  Green  v.  State,  13  Mo.  382; 
Connaughty  v.  State,  1  "Wis.  159,  60  Am.  Dec.  370; 
White  v.  People,  81  111.  333  ;  Doan  v.  State,  26  Ind. 
495;    King  v.  State,  21  Ga.  220. 

ABEYANCE  (Fr.  abbayer,  to  expect). 
In  expectation,  remembrance,  and  contempla- 
tion of  law;  the  condition  of  a  freehold 
when  there  is  no  person  in  being  in  whom  it 
is  vested. 

In  such  cases  the  freehold  has  been  said  to  be  in 
nubibus  (in  the  clouds),  in  pendenti  (in  suspen- 
sion), and  in  gremio  legis  (in  the  bosom  of  the 
law).  It  has  been  denied  by  some  that  there  is 
such  a  thing  as  an  estate  In  abeyance ;  Fearne, 
Cont.  Rem.  513.  See  also  the  note  to  2  Sharsw. 
Bla.  Com.  107;    1  P.  Wms.  516;    1  Plowd.  29. 

The  law  requires  that  the  freehold  should 
never,  if  possible,  be  in  abeyance.  Where 
there  is  a  tenant  of  the  freehold,  the  remain- 
der or  reversion  in  fee  may  exist  for  a  time 
without  any  particular  owner,  in  which  case 
it  is  said  to  be  in  abeyance;  Lyle  v.  Rich- 
ards, 9  S.  &  R.  (Pa.)  367;  3  Plowd.  29  a,  6, 
36  a;  1  Washb.  R.  P.  47. 

It  is  a  maxim  of  the  common  law  that  a 
fee  cannot  be  in  abeyance.  It  rests  upon 
reasons  that  now  have  no  existence,  and  it 
is  not  now  of  universal  application.  But  if 
it  were,  being  a  common-law  maxim,  it  must 
yield  to  statutory  provisions  inconsistent 
'with  it;  Wallach  v.  Van  Riswick,  92  U.  S. 
212,  2.3  L.  Ed.  173. 

A  glebe,  parsonage  lands,  may  be  in  abey- 
ance ;  Terrett  v.  Taylor,  9  Cra.  (IT.  S.)  47,  3 
I..  Ed.  650;  Weston  v.  Hunt,  2  Mass.  500; 
1  Washb.  R.  P.  4S;  or  a  grant  of  land  to 
charity;  Town  of  Pawlet  v.  Clark,  9  Cra. 
(TJ.  S.)  292,  332,  3  L.  Ed.  735.  So  may  the 
franchise  of  a  corporation ;  Trustees  of  Dart- 
mouth College  v.  Woodward,  -1  Wheat  (U.  S.) 
691,  4  L.  Ed.  629.  So,  too,  personal  proper- 
ty may  be  in  abeyance  or  Legal  sequesl ' 
as  in  case  of  a  vessel  captured  at  sea  from 
its  captors  until  it  becomes  invested  with  the 
character  of  a  prize;  1  Kent  102;  1  C.  Rob. 


Adm.  139 ;   3  id.  97,  n. ;   or  the  right    r,f  pj 
erty   of   a    bankrupt,    pending   adjudication; 
Bank  v.  Sherman,   101    D.  B.  403,  25    L    Kd. 
m;»-..     See  Dillingham  v.   Snow,   5  W 
Jewett  v.  Burroughs,   13  Mass.  4 

ABIATICUS      (Lat).       A     son's     son;     a 
.-n  in  the  male  line.     Bpel.     B 
spelled  Aviations,     bu  Cange,  Avius. 

ABIDE.  To  accept  the  consequences  of; 
to  rest  satisfied   with.     With  :    I  to  an 

order,  judgment,  or  decree  of  a  court,  to 
form,  to  execute.    Taylor  v.  Hughes, 
(Me.)    4:;.J;     Hodge    v.     Hodgdon,    8    I 
(Mass.)  294;  Jackson  v.  State.  30  Kan. 
Pac.  317;    Petition  of  Griswold,  13  R.  I.  125. 
Where  a  statute  provides  for  a  recognizance 
"to  abide  the  judgment  of  the  court,"   one 
conditioned  "to  await  the  action  of  the  court'' 
is    not  sufficient;     Wilson    v.    State,    7 
App.  38. 

To  abide  by  an  aicard.  To  await  the 
award  without  revoking  the  submission.  It 
does  not  mean  to  "acquiesce  in"  or  "not  dis- 
pute," in  the  sense  of  not  being  at  liberty  to 
contest  the  validity  of  the  award  when 
made;  Hunt  v.  Wilson,  6  X.  H.  36;  Quimby 
v.  Melvin,  35  N.  H.  198;  Marshall  v.  Reed, 
4S  N.  H.  36,  40. 

To  abide  the  decision.  An  agreement  in  a 
cause  of  partition  "to  abide  the  decision"  of 
a  suit  in  equity  involving  the  title  to  the 
same  lands  did  not  mean  to  postpone  tl  • 
mer  suit  until  a  final  decree  in  the  latter, 
but  only  that  the  partition  should  be  in  ac- 
cordance with  the  title  as  determined  by  it : 
Hodges  v.  Pingree,  108  Mass. 

To  abide  and  satisfy  is  used  to  express  the 
execution  or  performance  of  a  judgment  or 
order   by  carrying   it   into   complete   i 
Erickson  v.  Eider,   34   Minn.  371,  25  N.    W. 
804. 

ABIDING  BY.  In  Scotch  Law.  A  judicial 
declaration  that  the  party  abides  by  the  deed 
on  which  he  founds,  in  an  action  where  the 
deed  or  writing  is  attacked  as  forged.  Un- 
less this  be  done,  a  decree  that  the  deed  is 
false  will  be  pronounced.  Pat  Comp.  It 
has  the  effect  of  pledging  the  party  to  stand 
the  consequences  of  founding  on  a  i" 
deed.     Bell,  Diet 

ABIDING  CONVICTION.  A  definite  con- 
viction of  guilt  derived  from  a  thorough  cx- 

Lon  Of  the  whole  case.     Hopt   V. 
120  U.  S.  439,  7  Sup.  Ct  614,  30  L.  Ed.  708. 

ABIGEAT0RES.     See  Ahigeos. 

ABIGEATUS.  The  offence  of  driving 
away  and  stealing  cattle  iu  numbers.  See 
Abigetjs. 

ABIGEI.     See  Atugeus. 

ABIGERE.     See    Auickus. 

ABIGEUS  ( I. at.  abigere).  One  who  steals 
cattle  in  numbers. 

This  is  the  common  word  used  to  denote  a  stealer 
of  cattle    In    large    numbers,    which    latter    circum- 


ABIG  EUS 


88 


ABJURATION 


stance  distinguishes  the  abigeus  from  the  fur,  who 
was  simply  a  thief.  He  who  steals  a  single  animal 
may  be  called  fur  (q.  v.)  ;  he  who  steals  a  flock  or 
herd  is  an  abigeus.  The  word  is  derived  from 
abigercj  to  lead  or  drive  away,  and  is  the  same  in 
signification  as  Abactor  (q.  v.),  Abigcatores,  Abiga- 
tores,  Abigei.  Du  Cange;  Guyot,  Rep.  Univ.;  4 
Bla.    Com.   239. 

A  distinction  Is  also  taken  by  some  writers  de- 
pending upon  the  place  whence  the  cattle  are  tak- 
en ;  thus,  one  who  takes  cattle  from  a  stable  Is 
called   fur.     Calvinus,   Lex,  Abigei. 

ABILITY.  When  the  word  is  used  in  stat- 
utes, it  is  usually  construed  as  referring  to 
pecuniary  ability,  as  in  the  construction  of 
Lord  Tenterden's  Act  (q.  v.) ;  1  M.  &  W.  101. 

A  Wisconsin  Act  (1885),  making  a  husband 
"being  of  sufficient  ability"  liable  for  the  sup- 
port of  an  abandoned  wife,  contemplates  as 
well  earning  capacity  as  property  actually 
owned ;  State  v.  Witham,  70  Wis.  473,  35 
N.  W!  934;  a  contrary  view  was  taken  in 
Washburn  v.  Washburn,  9  Cal.  475. 

ABJUDICATIO  (Lat.  abjudicare).  A  re- 
moval from  court.  Calvinus,  Lex.  It  has 
the  same  signification  as  foris-judicatio  both 
in  the  civil  and  canon  law.  Co.  Litt.  100  b. 
Calvinus,  Lex. 

Used  to  indicate  an  adverse  decision  in  a 
writ  of  right :  Thus,  the  land  is  said  to  be 
ab judged  from  one  of  the  parties  and  his 
heirs.    2  Poll.  &  Maitl.  62. 

ABJURATION  (Lat  abjuratio,  from  ab- 
jurare,  to  forswear).  A  renunciation  of  al- 
legiance, upon  oath. 

In  Am.  Law.  Every  alien,  upon  application 
to  become  a  citizen  of  the  United  States, 
must  declare  on  oath  or  affirmation  before 
the  court  where  the  application  is  made, 
amongst  other  things,  that  he  doth  absolute- 
ly and  entirely  renounce  and  abjure  all  al- 
legiance and  fidelity  which  he  owes  to  any 
foreign  prince,  state,  etc.,  and  particularly, 
by  name,  the  prince,  state,  etc.,  whereof  he 
was  before  a  citizen  or  subject.  Rawle, 
Const.  93;  Rev.  Stat.  U.  S.  §  2165. 

In  Eng.  Law.  The  oath  by  which  any  per- 
son holding  office  in  England  was  formerly 
obliged  to  bind  himself  not  to  acknowledge 
any  right  in  the  Pretender  to  the  throne  of 
England ;  1  Bla.  Com.  368 ;  13  and  14  W.  Ill, 
c.  6,  repealed  by  30  and  31  Vic.  c.  09. 

It  also  denotes  an  oath  abjuring  certain  doctrines 
of  the  church  of  Rome. 

In  the  ancient  English  law,  it  was  a  renunciation 
of  one's  country  and  taking  an  oath  of  perpetual 
banishment.  A  man  who  had  committed  a  felony, 
and-  for  safety  fled  to  a  sanctuary,  might  within 
forty  days  confess  and  take  the  oath  of  abjuration 
and  perpetual  banishment ;  he  was  then  transport- 
ed. This  was  abolished  in  1624;  Ayliffe,  Pareg.  14; 
Burr.  L.  Die,  Abjuration  of  the  Realm;  §  4  Bla. 
Com.  332. 

But  the  doctrine  of  abjuration  has  been  referred 
to,  at  least,  in  much  later  times ;  4  Sharsw.  Bla. 
Com.  56,  124,  332;  11  East  301;  2  Kent  156,  n.  ; 
Termes  de  la  Ley. 

In  medieval  times,  every  consecrate^  r-'V-rch  was 
a  sanctuary.  If  a  malef'-  Uor  took  refu^v.  therein, 
he  could  not  be  extracts  he  had  a  choice  between 
abjuring  the  realm  and  Aibmitting  to  trial.  If  he 
chose  the  former  he  left  England,  bound  by  his 
oath  never  to  return.    His  lands  were  escheated,  his 


chattels  were  forfeited,  and  if  he  came  back  he 
was  an  outlaw;  2  Poll.  &  Maitl.  588;  Reville,  V Ab- 
juratio regni,  Revue  historique.  7  Val.  50,  p.  1. 
See   Sanctuary. 

ABLE  BODIED.  An  absence  of  those 
palpable  and  physical  defects  which  evident- 
ly incapacitate  a  person  from  performing 
the  ordinary  duties  of  a  soldier.  Darling 
v.  Bowen,  10  Vt.  148.  Ability  to  perform 
ordinary  labor  is  not  the  test.  Town  of 
Marlborough  v.  Sisson,  26  Conn.   57. 

ABLEGATI.  Papal  ambassadors  of  the 
second  rank,  who  are  sent  with  a  less  ex- 
tensive commission  to  a  court  where  there 
are  no  nuncios.  This  title  is  equivalent  to 
envoy,  which  see. 

ABNEP0S  (Lat.).  A  great-great-grand- 
son. The  grandson  of  a  grandson  or  grand- 
daughter.   Calvinus,  Lex. 

ABNEPTIS  (Lat.).  A  great-great-grand- 
daughter. The  granddaughter  of  a  grand- 
son or  granddaughter.    Calvinus,  Lex. 

ABODE.  The  place  in  which  a  person 
dwells.  See  Vanderpoel  v.  O'Hanlon,  53  la. 
246,  5  N.  W.  119,  36  Am.  Rep.  216.  It  is  the 
criterion  determining  the  residence  of  a  legal 
voter,  and  which  must  be  with  the  present 
intention  not  to  change  it.  Fry's  Election 
Case,  71  Pa.  302,  10  Am.  Rep.  698;  Dale  v. 
Irwin,  78  111.  181.     See  Residence  ;  Domicil. 

ABO  GAD  0  (Sp.).  An  advocate.  See 
Bozero. 

ABOLITION  (Lat.  abolitio,  from  abolere, 
to  utterly  destroy).  The  extinguishment, 
abrogation,  or  annihilation  of  a  thing. 

In  the  Civil,  French  and  German  law,  abolition  is 
used  nearly  synonymously  with  pardon,  remission, 
grace.  Dig.  39.  4.  3.  3.  There  is,  however,  this  dif- 
ference: grace  is  the  generic  term;  pardon,  ac- 
cording to  those  laws,  Is  the  clemency  which  the 
prince  extends  to  a  man  who  has  participated  in  a 
crime,  without  being  a  principal  or  accomplice ; 
remission  is  made  in  cases  of  involuntary  homicides, 
and  self-defence.  Abolition  is  different:  it  is  used 
when  the  crime  cannot  be  remitted.  The  prince 
then  may,  by  leters  of  abolition,  remit  the  punish- 
ment, but  the  infamy  remains,  unless  letters  of 
abolition  have  been  obtained  before  sentence.  En- 
cycl.   de  D'Alembcrt. 

As  to  abolition  of  slavery,  see  Bondage  ; 
Slave. 

AB0RDAGE  (Fr.).  The  collision  of  ves- 
sels. See  Admiralty  ;  Code;  Collision;  Nav- 
igation,  Rules  of. 

ABORTION.  The  expulsion  of  the  foetus 
at  a  period  of  utero-gestation  so  early  that 
it  has  not  acquired  the  power  of  sustaining 
an  independent  life. 

The  unlawful  destruction,  or  the  bringing 
forth  prematurely,  of  the  human  fcetus  be- 
fore the  natural  time  of  birth;  State  v.  Mag- 
nell,  3  Pennewill   (Del.)   307,  51  Atl.  606. 

Its  natural  and  innocent  causes  are  to  be  sought 
either  in  the  mother— as  in  a  nervous,  irritable  tem- 
perament, disease,  malformation  of  the  pelvis,  im- 
moderate veneral  indulgence,  a  habit  of  miscar- 
riage, plethora,  great  debility;  or  in  the  fcetus  or 
its  dependencies ;    and  this  is  usually  disease  exist- 


ABORTION 


89 


aix.rtion 


lng   in  the  ovum,   In  the  membranes,  the  placenta, 
or  the  fcetus  Itself. 

The  criminal  means  of  producing  abortion  are  of 
two  kinds.  General,  or  those  which  seek  to  pro- 
duce the  expulsion  through  the  constitution  of  the 
mother,  which  are  venesection,  emetics,  cathartics, 
diuretics,  emmenagogues,  comprising  mercury,  sav- 
in, and  the  secale  cornutum  (spurred  rye,  ergot), 
to  which  much  importance  has  been  attached  ;  or 
Zotal  or  mechanical  means,  which  consist  either  of 
external  violence  applied  to  the  abdomen  or  loins, 
or  of  Instruments  introduced  into  the  uterus  for 
the  purpose  of  rupturing  the  membranes  and  thus 
bringing  on  premature  action  of  the  womb.  The 
latter  Is  the  more  generally  resorted  to,  as  being 
the  most  effectual.  These  local  or  mechanical  means 
not  unfrequently  produce  the  death  of  the  mother, 
as  well  as  that  of  the  foetus. 

At  common  law,  an  attempt  to  destroy  a 
child  en  t"<  ntre  sa  mere  appears  to  have  been 
held  In  England  to  he  a  misdemeanor; 
Cr.  Ev.  4th  Lond.  ed.  200;  1  Russ.  Cr.  3d 
Lond.  ed.  671;  3  Co.  Inst  50;  1  Hawk.  c.  13, 
s.  1G;  1  Whart.  Crim.  L.  §  392;  though 
Green,  C.  J.,  in  State  v.  Cooper,  22  X.  J.  L. 
52,  51  Am.  Dec.  248,  declares  that  he  can 
find  "no  precedent,  no  authority,  not  oven  a 
dictum  (prior  to  Lord  Ellenborough's  act,  43 
Geo.  III.  c.  5S)  which  recognizes  the  mere 
procuring  of  an  abortion  as  a  crime  known 
to  the  law."  It  was  said  to  be  a  misde- 
meanor only  if  the  child  were  born  dead,  but 
if  it  were  born  alive  and  afterwards  died, 
from  injury  received  in  the  womb,  it  would 
be  homicide;  1  Mood.  C.  C.  346;  3  Inst.  50; 
and  this  was  true  even  if  the  child  were 
still,  at  the  time  of  death,  attached  to  the 
mother  by  the  umbilical  cord;  1  C.  &  M.  650; 
2  Mood.  C.  C.  260;  see  infra.  In  this  coun- 
try, it  has  been  held  that  it  is  not  an  indict- 
able offence  at  common  law  to  administer 
a  drug,  or  perform  an  operation  upon  a 
pregnant  woman  with  her  consent,  with  the 
Intention  and  for  the  purpose  of  causing  an 
abortion  and  premature  birth  of  the  fcetus 
of  which  she  is  pregnant,  by  means  of  which 
an  abortion  is  in  fact  caused,  unless,  at  the 
time  of  the  administration  of  such  drug  or 
the  performance  of  such  operation,  such  wo- 
man was  quick  with  child;  Com.  v.  Wood,  11 
Gray  (Mass.)  So;  Hatfield  v.  Gano,  15  la. 
177;  Evans  v.  People,  40  N.  Y.  S6;  Smith  v. 
State.  33  Me.  48,  54  Am.  Dec.  607 ;  State  v. 
Cooper,  22  N.  J.  L.  52,  51  Am.  Dec.  248; 
Sullivan  v.  State,  121  Ga.  183,  48  S.  E.  949; 
Barrow  v.  State,  121  Ga.  1S7,  48  S.  E.  950; 
Mitchell  v.  Com.,  78  Ky.  204,  39  Am.  Rep. 
227.  In  Idaho  the  common  law  rule  is  as 
stated,  but  by  statute  the  crime  may  be  com- 
mitted before  quickening;  State  v.  Alcorn,  7 
Ida.  509,  64  1'ac.  1014,  97  Am.  St.  Rep.  252. 
But  in  Pennsylvania  a  contrary  doctrine  has 
been  held;  Mills  v.  Com.,  13  Pa.  631;  Com. 
v.  Demain,  6  Pa.  L.  J.  29.  Wharton  sup- 
ports the  latter  doctrine  on  principle;  1  Cr. 
L.  §  592  See  also  Com.  v.  Boynton,  116 
Mass.  S43 .  Com.  v.  Brown,  121  Mass.  69 ; 
Com.  v.  Corkin,  136  Mass.  429.  Under  the 
Massachusetts  statute  forbidding  the  procur- 
lug  of  a  miscarriage,  it  is  not  necessary  to 


allege  that  the  child  was  born  aK       6r  t. 
the   woman  was  "quick  with  i  .m.  v. 

Wood,  11  Gray  (Mass.)  85;   or    . 
did  or  did  not  die;  Com.   v. 
Mass.   461.     In   other   Btatefi   it    is 
the  death  of  the  mother  is  not  a  c 
element  of  the  offence  of  abortion  ;  Worthing- 
ton  v.  State,  92  Md.  222,  48  Atl.  ■ 
R.  A.  353,  84  Am.   St.    Rep.  506;    Etai 
Com.,  110  Pa.  100,  1  Atl.  314.     - 
isc.     The  Iowa  tpra  wi-i 

suits   by   husband   and  wife  for  slander  in 
charging  the  latter  with  having  procuri 
abortion,  and  it  was  held  that  no  crime  was 
committed    unless    the    woman    was    "quick 
with   child." 

The  former  English  statutes  on  this  sub- 
ject, 43  Geo.  III.  c.  58,  and  \>  Geo.  IV. 
§  14,  distinguished  between  the  case  where 
the  woman  was  quick  and  was  not 
with  child;  and  under  both  acts  the  woman 
must  have  been  pregnant  at  the  time;  1 
Mood.  Cr.  Cas.  216  ;  ll  G  &  P.  605.  The  terms 
of  the  act  of  24  and  25  Vict  c.  100,  B.  62,  are, 
"with  intent  to  procure  the  miscarriage  of 
any  woman  whether  she  be  with  child  or 
not."     See  1  Den.  Cr.  Cas.  18 ;  2  C.  &  1 1 

When,  in  consequence  of  the  m 
to  secure  an  abortion,  the  death  of  the  wo- 
man ensues,  the  offence  is  criminal  homicide, 
and  though  the  cases  are  not  uniform 
the  degree,  the  preponderance  of  authority 
is  that  the  crime  is  murder;  State  v.  1 
son,  41  Wis.  309;    Com.   v.   Parker,    9 
(Mass.)  263,  43  Am.   Dec.  396;  1  Hale  P.   Q 
430;  1  East  P.   C.  230;   People  v.    S 
5S  Mich.  594,  26  X.  W.  U01 ;  Wilson  v.  I 
60  S.   W.  400,  22   Ky.  Law    Rep.   1251; 
v.  Moore,  25  la.  128,  95  Am.  Dec.  776 ;  Smith 
v.  State,  33  Me.  48,  54  Am.  Dec  607;  I 
&  B.  C.   C.  2S8;  Mood.  C.  C.  imon- 

wealth   v.   Keeper  of  Prison.   2  Ashm.   (Pa.) 
227;   Montgomery  v.  State,  SO  Ind.  33 
Am.   Rep.   815;    but  the  defendant   may   be 
prosecuted    under    the    special    statute    for 
procuring  a  miscarriage;  id.     Where  the  of- 
fence is  held  to  be  murder,  it  is  usually  of 
the  second  degree,   as  in  State  v. 
Houst.  (Del.)  542.  33  Atl.  312,  where  tl 
fendant  was  convicted  under  an  indictment 
specifically  for  that  degree;  so  also  In  state 
v.  Moore,  25  la.  128,  95  Am.  Dec.  77C.  where 
Dillon,  C.  J.,  upon  a  careful  examination  of 
the  authorities,  sustained  the  indictment  and 
held   that  the  death  of  the  mother   w 
common   law,   murder,   and   under   the    iowa 
statutes  murder  in  the  second  deg 
viction  upon  an  indictment  for  manslau 
will  be  sustained;  People  v.  Abbott.  11<>  Mich. 
263.  74  X.  W.  529;   Yundt  v.  People,  65  111. 
372;  Dears.  &  B.  C.  C  161:  7  Cox  C.  C.  404. 
The  common  law  rule  that  homicide  in  an 
attempt  to  commit  a  felony  is  murder,  and 
in  the  attempt  to  commit  a  misd< 
manslaughter,  has  been  much  discussed  and 
was  applied  in  Worthhogton  v.  State,  92  Md. 
222,  48  Atl.  355,  50  L.  R,  A  353,  84  Am.   St. 


ABORTION 


90 


ABORTION 


Rep.  506,  where  an  attempt  to  procure  an 
abortion  resulting  in  death  was  held  man- 
slaughter. Under  the  Pennsylvania  act  one 
causing  the  death  of  a  woman  in  attempting 
to  procure  a  miscarriage  cannot  be  indicted 
for  murder;  Com.  v.  Railing,  113  Pa.  37,  4 
Atl.  459.  In  Wisconsin  it  was  held  that  from 
murder  at  common  law,  the  crime  was  re- 
duced to  manslaughter  by  statute;  State  v. 
Dickinson,  41  Wis.  299,  309.  A  person  may 
be  convicted  of  manslaughter  for  causing  the 
death  of  a  woman  in  attempting  an  abortion, 
under  a  statute  making  it  manslaughter  to 
kill  another  in  the  performance  of  an  un- 
lawful act ;  the  statute  making  the  attempt 
to  procure  an  abortion  a  misdemeanor  does 
not  take  the  offence  out  of  the  provisions 
of  the  other  act;  State  v.  Power,  24  Wash. 
34,  63  Pac.  1112,  63  L.  R  A.  902.  Homicide 
in  attempting  an  abortion  may  be  either 
murder  or  manslaughter,  but  if  the  latter, 
it  must  be  held  to  be  voluntary,  and  not 
involuntary ;  People  v.  Com.,  87  Ky.  487,  9 
S.  W.  509.  Dr.  Wharton  suggests  that 
where  there  was  no  intent  to  do  the  mother 
serious  bodily  harm,  it  is  proper  to  indict 
separately  for  the  manslaughter  and  the  per- 
petration of  the  abortion;  1  Cr.  L.  390.  In 
North  Carolina  it  was  held  a  misdemeanor, 
and  that  a  count  for  it  may  be  joined  with 
a  count  for  murder ;  State  v.  Slagle,  82  N.  C. 
653.  In  New  York,  under  a  statute  declar- 
ing it  manslaughter  to  administer  drugs,  etc., 
to  a  pregnant  woman  with  intent  to  destroy 
the  child,  an  indictment  in  which  the  intent 
was  not  so  alleged,  but  only  to  produce  a 
miscarriage,  was  held  not  good  as  an  indict- 
ment for  manslaughter,  but  the  jury  could 
convict  of  misdemeanor;  Lohman  v.  People, 
1  N.  T.  379,  49  Am.  Dec.  340. 

In  East  P.  C.  230,  it  is  said  that  if  death 
ensue  it  is  murder,  "though  the  original  in- 
tent, had  it  succeeded,  would  not  have  been 
so  but  only  a  great  misdemeanor,"  but  the 
modern  English  decisions  are  by  no  means 
uniform.  In  a  late  edition  of  a  book  of 
great  authority  the  annotator  says :  'And 
there  appears  to  be  considerable  divergence 
of  opinion  amongst  the  judges  as  to  the  prop- 
er direction  to  the  jury  in  these  cases.  See 
33  L.  J.  Newsp.  546,  615;"  Archb.  Cr.  PI.  & 
Pr.  (23d  Eng.  Ed.)  798.  A  recent  English 
case  held  that  if  the  woman  died  as  the  re- 
sult of  the  operation,  it  was  murder,  but  if 
the  jury  were  of  the  opinion  that  if  the  pris- 
oner could  not  as  a  reasonable  man  have 
expected  death  to  result,  it  was  manslaugh- 
ter; 62  J.  P.  711.  A  note  in  13  Harv.  L.  Rev. 
51,  criticizes  a  decision,  then  recent,  remark- 
ing that  the  settled  English  rule  holding  that 
it  is  murder  if  death  result  from  an  attempt 
to  procure  an  abortion,  was  not  followed  by 
Mr.  Justice  Dowling  in  a  case  at  the  Ches- 
ter assizes,  March  6,  1899. 

Even  if  the  wound  or  injury  were  not  of 
itself  sufficient  to  cause  death,  if  it  did  so 
result,  owing  to  the  condition  of  the  woman, 


it  is  to  be  treated  as  the  cause  of  her  death ; 
Clark  v.  Com.,  Ill  Ky.  443,  63  S.  W.  740. 
See  an  exhaustive  note  on  "Homicide  in  the 
Commission  of  or  Attempt  to  Commit  an 
Abortion";  03  L.  R.  A.  902. 

If  a  person,  intending  to  procure  abor- 
tion, does  an  act  which  causes  a  child  to  be 
born  so  much  earlier  than  the  natural  time 
that  it  is  born  in  a  state  much  less  capable 
of  living,  and  afterwards  dies  in  consequence 
of  its  exposure  to  the  external  world,  such 
person  is  guilty  of  murder;  and  the  mere  ex- 
istence of  a  possibility  that  something  might 
have  been  done  to  prevent  the  death  will  not 
render  it  less  murder ;  2  C.  &  K.  7S4.  Under 
statutes  the  offence  of  abortion  is  generally 
made  punishable  whether  the  woman  be 
"quick  with  child,"  or  no;  Smith  v.  State,  33 
Me.  48,  54  Am.  Dec.  607;  People  v.  Abbott, 
116  Mich.  263,  74  N.  W.  529;  and  in  an  in- 
dictment for  causing  death  in  an  attempt  to 
procure  an  abortion  it  is  unnecessary  so  to 
allege;  People  v.  Com.,  87  Ky.  487,  9  S.  W. 
509.  It  is  immaterial  whether  or  not  the 
woman  was  pregnant;  Eggart  v.  State,  40 
Fla.  527,  25  South.  144;  the  intent  is  the 
gravamen  of  the  offence ;  State  v.  Jones,  .4 
Pennewill  (Del.)  109,  53  Atl.  858. 

The  crime  may  be  committed  by  one  who, 
though  prescribing  medicine  and  giving  di- 
rections, wTas  not  present  when  it  was  taken; 
McCaughey  v.  State,  156  Ind.  41,  59  N.  E. 
169;  or  by  sending  it  through  the  mail; 
State  v.  Morthart,  109  la.  130,  80  N.  W.  301 ; 
or  if  the  pregnant  woman  consented  to  or 
urged  the  operation  and  the  defendant  was 
reluctant  to  do  it;  State  v.  Magnell,  3  Penne- 
will (Del.)  307,  51  Atl.  606;  the  consent  of 
the  woman  is  no  defense;  Barrow  v.  State, 
121  Ga.  187,  48  S.  E.  950;  State  v.  Lodge, 
9  Houst.  (Del.)  542,  33  Atl.  312;  Peoples  v. 
Com.,  87  Ky.  487,  9  S.  W.  509;  even  where 
the  indictment  charges  force  and  violence 
and  the  evidence  showed  consent ;  People  v. 
Abbott,  116  Mich.  263,  74  N.  W.  529;  nor  is 
it  an  excuse  that  prior  to  the  attempt  the 
woman  had  tried  to  do  it  herself,  unless 
such  effort  by  her  contributed  to  her  death; 
State  v.  Glass,  5  Or.  73. 

A  child  en  ventre  sa  mere  ["an  unborn 
quick  child"]  is  not  a  human  being  within 
the  meaning  of  a  statute  providing  that 
whoever  kills  any  human  being,  with  malice 
aforethought,  is  guilty  of  murder;  Abrams 
v.  Foshee,  3  la.  274,  66  Am.  Dec.  77. 

The  woman  who  takes  the  drug  or  on 
whom  the  criminal  operation  is  performed, 
to  procure  an  abortion,  is  not  an  accomplice ; 
Com.  v.  Boynton,  116  Mass.  343;  Com.  v. 
Follansbee,  155  Mass.  274,  29  N.  E.  471; 
State  v.  Hyer,  39  N.  J.  D.  598;  People  v.  Mc- 
Gonegal,  136  N.  Y.  62,  75,  32  N.  E.  616;  and 
if  she  had  lived  would  not  have  been  indict- 
able for  that  offense,  her  action  constituted 
a  different  one;  id.;  nor  is  one  who  attempts 
to  procure  it  on  herself  indictable  under  a 
statute  providing  "that  any  person  who  shall 


ABORTION 


91 


ABRIDGE 


administer  to  any  pregnant  woman,  etc."; 
Hatfield  v.  Gano,  15  la.  177;  Smith  v.  Gaf- 
fard,  31  Ala.  45. 

In  New  York  if  a  person  advises  a  woman 
to  take  medicine  to  procure  a  miscarriage 
the  crime  of  abortion  is  not  complete  unless 
the  advice  is  acted  on;  People  v.  Phelps,  KJ.'J 
N.  Y.  207,  30  N.  E.  1012;  id.,  01  Hun  115,  15 
N.  Y.  Supp.  440;  but  in  New  Jersey  It  is  by 
statute  criminal  to  advise  a  woman  to  take 
a  drug  for  the  purpose  and  it  is  unnecessary 
either  to  allege  or  prove  that  the  drug  was 
actually  taken;  Stale  v.  Murphy,  27  X.  J.  L. 
112;  one  furnishing  a  residence  for  a  woman 
who  procures  an  abortion  is  an  accessory  be- 
fore the  fact ;  12  Cox  C.  C.  403.  An  offer  of 
proof  by  physicians  that  it  is  the  universal 
custom  for  unmarried  women,  illegitimately 
pregnant,  to  take  any  character  of  drug  to 
procure  a  miscarriage  was  properly  rejected; 
Clark  v.  Com.,  Ill  Ky.  I  i.:.  63  S.  W.  740. 
One  who  induces  a  woman  to  take  a  harm- 
less drug  is  not  guilty  of  inciting,  but  the 
woman  who  takes  it  believiug  that  it  will 
bring  on  an  abortion  is  guilty  of  an  attempt; 
63  J.  P.  790.     See  Fcetus;  Pregnancy;  i:m- 

MENAQOGUE8;   EN  VENTRE   SA   MERE. 

ABORTIVE  TRIAL.  A  phrase  used 
"when  a  case  has  gone  off  and  no  verdict  has 
been  pronounced,  without  the  fault,  contriv- 
ance, or  management  of  the  parties."  Jebb  & 
B.  51. 

ABORTUS.  The  fruit  of  an  abortion ;  the 
child  born  before  its  time,  incapable  of  life. 
See  Abortion  ;  Birtii;  Breath;  Dead-born; 
Gestation  ;  Life. 

ABOUT.  Almost  or  approximately;  near 
in  time,  quantity,  number,  quality  or  degree. 
The  import  of  the  qualifying  word  "about"  is 
simply,  that  the  actual  quantity  is  a  near 
approximation  to  that  mentioned,  and  its  ef- 
fect is  to  provide  against  accidental  varia- 
tions; Norrington  v.  Wright,  115  U.  S.  1SS, 
8  Sup.  Ct.  12,  29  L.  Ed.  .'500.  When  there  is 
a  material  and  valuable  variation,  a  court 
of  equity  upon  a  petition  for  specific  per- 
formance will  give  the  word  its  proper  ef- 
fect; Stevens  v.  McKnight,  40  Ohio  St.  341. 

In  a  charter  party  "about  to  sail"  imports 
just  ready  to  sail;  [1893]  2  Q.  B.  271. 

ABOUTISSEMENT  (Fr.).  An  abuttal  or 
abutment  See  Guyot.  Report.  Univ.  Abou- 
tissims. 

ABOVE.  Higher;  superior.  As,  court 
above,  bail  above,  plaintiff  or  defendant 
above.  Above  all  incumbrances  means  in  ex- 
cess thereof;  Williams  v.  McDonald,  42  N. 
J.  Eq.  395,  7  Atl.  SCI!. 

ABPATRUUS  (Lat.).  A  great-great-uncle  ; 
or,  a  great-great-grandfather's  brother.  Du 
Cange,  Pat  runs.  It  sometimes  means  uncle, 
and  sometimes  great-uncle. 

ABRIDGE.  To  shorten  a  declaration  or 
count  by  taking  away   or  severing  some  of 


the  substance  of  it.  Brooke,  Abr.,  Com.,  Dig 
Abridgment;  1  Viner,  Abr.  109. 

To  abridge  a  plaint  is  to  strike  out  a  part 
of  the  demand  and  pray  that  the  tenant  an- 
swer to  the  rest.    This  was  allowable 
ally  in  real  actions  where  the  writ   v. 
Ubero    tenemento,    as    assize,    d< 

demandant  claimed  land  of  which 
the    tenant    was    not    seized.      See    i 

:.  207,  n.  2;  2  id.  24,  330;  Br< 
Abridgment',  .Minor  v.  Bank,  1  Pet  (U. 
7  L.  Ed.  47;  Stearns,  Real  Act. 

abridgment.  Condensation;  contrac- 
tion. An  epitome  or  compendium  of  anoth- 
er   and    larger    work,    wherein    the    principal 

ideas  of  the  larger  work  are  summarily  con- 
tained. 

Abridgments  of  the  law  or  dipests  of  ad- 
judged cases  serve  the  very  useful  purpose 
of  an  index  to  the  cases  abridged  ;  5  Co.  25. 
Coke  says  they  are  most  profitable  to  those 
who  make  them;  Co.  Litt,  in  preface  to  the 
table  at  the  end  of  the  work.  With  few  ex- 
ceptions, the  old  abridgments  are  not  en- 
titled to  be  considered  authoritative.  See 
Authority.  See  2  Wils.  1,  2 ;  1  Burr.  304; 
1  W.  Bla.  101;  3  Term  64,  2  11  :  and  an  ar- 
ticle in  the  North  American  Review,  July, 
L826,  p.  8,  for  an  account  of  the  principal 
abridgments,  whir])  was  written  by  the  late 
Justice  Story,  and  is  reprinted  in  his  "Mis- 
cellaneous Writings,"  p.  79;  Warren,  Law 
Stud.  TVs. 

See  Copyright. 

ABROGATION.  The  destruction  of  or  an- 
nulling a  former  law,  by  an  act  of  the  leg- 
islative power,  or  by  usage. 

A  law  may  be  abrogated,  or  only  derogated  from: 
It  Is  abrogated  when  it  is  totally  annulled;  it  is 
derogated  from  when  only  a  part  is  abrogated; 
derogatur  legi,  cum  pars  detrahiturj  abrogatur 
legi,  cum  prorsus  tollitur.  Dig.  50.  17.  L  1  < • 
rogatur  dum  fcrtur  (when  it  is  passed);  abrogatur 
dutn  tollitur  (when  it  is  rep  i 

dum  quoddam   <jus  caput  r  (when    any  part 

of  it  is  abolished)  ;  subrogatur  dum  aliquid  ei  a<%- 
/!< -itur    (when    anything   la   added  to   it);     abrogatur 

'.  quotiea  aliquid  in  ea  mutatur  (as  o 
anything    in    it    Is    changed).      Dupin,    Proleg.    Jur. 
art.    iv. 

Express  abrogation  is  that  literally  pro- 
nounced by  the  new  law  either  in  general 
terms,  as  when  a  final  clause 
repeals  all  laws  contrary  to  the  provisions 
of  the  new  one,  or  in  particular  term 
when  it  abrogates  certain  preceding  laws 
which  are  named. 

Implied  abrogation  tales  place  when  the 
new  law  contains  provisions  which  are  posi- 
tively contrary  to  former  laws,  without  ex- 
,  abrogating  such  laws;  Cor  it  is  a 
maxim,  poateriora  derogant  prioribvt;  De 
Annas-  Case,  10  Mart  O.  S.  (La.)  L72;  Ber- 
nard v.  Vignaud,  10  Mart.  O.  S.  (La  I 
and  also  when  the  order  of  things  for  which 
the  law  has  been  made  no  longer  exists,  and 
hence  the  motives  which  have  I   Its  en- 

actment   have    ceased    to    operate;     ratione 


ABROGATION 


92 


ABSENT 


legis  omnino  cessante,  cessat  lex;  Toullior, 
Dr.  Civ.  Fr.  tit.  prel.  §  11,  n.  151;  Merlin, 
Repert    Abrogation. 

As  to  the  repeal  of  statutes  by  nonuser, 
see  Obsolete. 

ABSCOND.  To  go  in  a  clandestine  man- 
ner out  of  the  jurisdiction  of  the  courts,  or 
to  lie  concealed,  in  order  to  avoid  their  pro- 
cess. Malvin  v.  Christoph,  54  la.  502,  7  N. 
W.  6.  It  has  been  held  synonymous  with  con- 
ceal ;  Johnstone  v.  Thompson,  2  La.  411.  See 
Absconding  Debtor. 

ABSCONDING  DEBTOR.  One  who  ab- 
sconds from  his  creditors.  One  who  with  in- 
tent to  defeat  or  delay  his  creditors  departs 
out  of  England,  or  being  out,  remains  out. 
Bankcy.  Act,  1883,  §  4.  The  statutes  of  the 
various  states  and  the  decisions  upon  them 
have  defined  absconding  debtors.  A  person 
who  has  been  in  a  state  only  transiently,  or 
has  come  into  it  without  any  intention  of  set- 
tling therein,  cannot  be  treated  as  such ;  In 
re  Fitzgerald,  2  Caines  (N.  Y.)  318;  Dudley 
v.  Staples,  15  Johns.  (N.  Y.)  196;  nor  can 
one  who  openly  changes  his  residence;  Dunn 
v.  Myres,  3  Yerg.  (Tenn.)  414;  Fitch  v.  Waite, 
5  Conn.  117 ;  House  v.  Hamilton,  43  111.  185 ; 
In  re  Proctor,  27  Vt.  118 ;  Mandel  v.  Peet,  18 
Ark.  236.  It  is  not  necessary  that  the  debtor 
should  actually  leave  the  state ;  Field  v.  Ad- 
reon,  7  Md.  209.  If  he  depart  from  his  usual 
place  of  abode  secretly  or  suddenly,  or  re- 
tire or  conceal  himself  from  public  view  in 
order  to  avoid  legal  process ;  Bennett  v. 
Avant,  2  Sneed  (Tenn.)  152 ;  Ives  v.  Curtiss, 
2  Root  (Conn.)  133;  he  is  an  absconder.  It 
is  essential  that  there  should  be  an  intention 
to  delay  and  defraud  creditors.  The  fact  of 
converting  a  large  amount  of  goods  into 
money  by  auction  sales,  at  a  sacrifice  and 
clandestinely,  furnishes  a  reasonable  pre- 
sumption that  the  debtor  intended  to  abscond 
to  avoid  service  of  process  upon  him ;  Ross 
v.  Clark,  32  Mo.  296.  It  has  been  held  to 
mean  more  than  "absent  debtor"  and  that  to 
state  that  a  debtor  absents  himself  is  not  a 
compliance  with  a  statute  relating  to  ab- 
sconding debtors ;  Conard  v.  Conard,  17  N. 
J.  L.  154.     See  Absentee. 

ABSENCE.  The  state  of  being  away  from 
one's  domicil  or  usual  place  of  residence.  It 
may  mean  non-appearance.  L.  R.  1  P.  &  D. 
169;  14  L.  t;  604;  Strine  v.  Kaufman,  12 
Neb.  423,  11  N.  W.  867. 

ABSENT.  Being  away  from;  at  a  dis- 
tance from ;  not  in  company  with.  Paine  v. 
Drew,  44  N.  H.  306,  where  it  was  held  that 
the  word  when  used  as  an  adjective  referred 
only  to  the  condition  or  situation  of  the  per- 
son or  thing  spoken  of  at  the  time  of  speak- 
ing without  any  allusion  or  reference  to  any 
prior  condition  or  situation  of  the  same  per- 
son or  thing,  but  when  used  as  a  verb  im- 
plies prior  presence.  It  has  also  been  held 
to  mean  "not  being  in  a  particular  place  at 


the  time  referred  to,"  and  not  to  import  pri- 
or presence ;  [1893]  A.  C.  339 ;  62  L.  J.  C.  P. 
107;  62  L.  T.  159.  The  term  absent  d< 
ants  does  not  embrace  non-resident  defend- 
ants but  has  reference  to  parties  resident  in 
the  state,  but  temporarily  absent  therefrom ; 
Wash  v.  Heard,  27  Miss.  400;  Wheeler  v. 
Wheeler,  35  111.  App.  123.  Although  there 
is  a  difference  between  the  act  of  "absenting 
oneself,"  which  is  purely  voluntary,  and  the 
fact  of  "being  absent,"  which  is  voluntary  or 
involuntary  as  the  case  may  be,  yet  the  fact 
that  a  person  is  absent  under  some  strong 
compulsion,  which  does  not  amount  to  physi- 
cal necessity,  does  not  necessarily  negative 
the  voluntary  aspect  of  his  act;  [1901]  1 
Ch.  728. 

ABSENTE  (Lat).  Being  absent;  used  of 
one  of  the  judges  not  present  at  the  hearing 
of  a  cause.  2  Mod.  14.  Absente  Keo  (Lat). 
The  defendant  being  absent. 

ABSENTEE.  A  landlord  who  resides  in  a 
country  other  than  that  from  which  he  draws 
his  rents.  McCulloch,  Polit.  Econ. ;  33  Brit- 
ish Quart.  Rev.  455.  One  who  has  left  his 
residence  in  a  state  leaving  no  one  to  repre- 
sent him ;  Bartlett  v.  Wheeler,  31  La.  Ann. 
540 ;  or  who  resides  in  another  state  but  has 
property  in  Louisiana ;  Penn  v.  Evans,  2S  id. 
576.  It  has  been  also  defined  as  one  who  has 
never  been  domiciled  in  the  state  and  who 
resides  abroad.  Morris  v.  Bienvenu,  30  id. 
878. 

As  to  grant  of  administration  upon  proper- 
ty of  persons  long  absent,  see  Administka- 
tion. 

ABS0ILE.  To  pardon;  to  deliver  from 
excommunication.  Staunford,  PI.  Cr.  72 ; 
Kelham.  Sometimes  spelled  assoile,  which 
see. 

ABSOLUTE  (Lat  absolvere).  Complete; 
perfect ;  final ;  without  any  condition  or  en- 
cumbrance; as  an  absolute  bond  (simplex 
obligatio)  in  distinction  from  a  conditional 
bond;  an  absolute  estate,  one  that  is  free 
from  all  manner  of  condition  or  incumbrance. 
See  Condition. 

A  rule  is  said  to  be  absolute  when  on  the 
hearing  it  is  confirmed  and  made  final.  A 
conveyance  is  said  to  be  absolute,  as  dis- 
tinguished from  a  mortgage  or  other  condi- 
tional conveyance;   1  Powell,  Mort.  125. 

Absolute  rights  are  such  as  appertain  and 
belong  to  particular  persons  merely  as  in- 
dividuals or  single  persons,  as  distinguished 
from  relative  rights,  which  are  incident  to 
them  as  members  of  society ;  1  Sharsw.  Bla. 
Com.  123 ;    1  Chit.  Pr.  32. 

Absolute  property  ^s  where  a  man  hath 
solely  and  exclusively  the  right  and  also  the 
occupation  of  movable  chattels;  distinguish- 
ed from  a  qualified  property,  as  that  of  a 
bailee;  2  Sharsw.  Bla.  Com.  388;  2  Kent 
347. 

An  absolute  estate  in  land  is  an  estate  in 


ABSOLUTE 


93 


ABSQUE  IMPETITIONE   VASTI 


fee  simple;  Johnson  v.  Mcintosh,  8  Wheat. 
(U.  S.)  543,  5  1,  Ed.  GS1 ;  Fuller  v.  Misaroon, 
35  S.  C.  314,  14  S.  E.  714;  Columbia  Water 
Power  Co.  v.  Tower  Co.,  172  U.  S.  i'->-,  19 
Sup.  Ct.  247,  4::  L.  Ed.  521. 

In  the  law  of  insurance  that  is  an  abso- 
lute interest   in  property   which  is  so  com- 
pletely  vested    in   the  individual   that  there 
could  be  no  danger  of  his  being  deprived  of 
it  without  his  own  consent;    Hough   v.   Ins. 
Co.,  29  Conn.  10,  7(5  Am.  Dec.  581  : 
v.  Ins.  Co.,  2  Grant,  Cas.  (Pa.)  •';-<"<;    Wash- 
ington Fire  Ins.  Co.  v.  Kelly,  :i2  Md. 
Am.  Rep.  L49;    Columbia  Water  Power  Co.  v. 
Power  Co.,   1T_'   !'.  S.  492,  It)  Sup.  Ct.  2 
L.  Ed.  521. 

It  may  lie  used  in  the  sense  of  vested;  Wil- 
liams v.  Ins.  Co.,  17  Fed.  65;  Hough  v.  Ins. 
Co.,  29  Conn.  20,  76  Am.  Dec.  581. 

ABSOLUTELY.  Completely.  Absolutely 
void  means  utterly  void;  Pearsoll  v.  Chapln, 
44  Pa.  9.  Absolutely  necessary  may  he  used 
to  make  the  idea  of  necessity  more  emphatic; 
State  v.  Tetrick,  34  W.  Va.  137,  11  S.  E.  1002. 

ABSOLUTION.  In  Civil  Law.  A  sentence 
win  rehy  a  party  accused  is  declared  innocent 
of  the  crime  laid  to  his  charge. 

In  Canon  Law.  A  juridical  act  wherehy 
the  clergy  declare  that  the  sins  of  such  as 
me  penitent  are  remitted.  The  formula  of 
ahsolution  in  the  Roman  Church  is  absolute; 
in  the  Greek  Church  it  is  deprecatory;  in 
the  Reformed  Churches,  declaratory.  Among 
Protestants  it  is  chiefly  used  for  a  sentence 
by  which  a  person  who  stands  excommuni- 
cated is  released  or  freed  from  that  punish- 
ment.    Encyc.  Brit. 

In  French  Law.  The  dismissal  of  an  ac- 
cusation. 

'I'll-  term  acquitment  is  employed  when  the  ac- 
cusal is  declared  not  guilty,  and  absolution  when 
he  is  recognized  as  guilty  but  the  act  is  not  punish- 
able by  law  or  he  Is  exonerated  by  some  defect  of 
int    ntion    or  will.     Merlin,   Report. 

ABSOLUTISM.  In  Politics.  A  govern- 
ment in  which  public  power  is  vested  in 
some  person  or  persons,  unchecked  and  un- 
controlled by  any  law  or  institution. 

The  word  was   first  used  at  the  beginning  of  this 
century,  in   Spain,  where  one  who  was  in  favor  of 
the  absolute  power  of  the  king,  and  opposed  to  the 
I  utional     system     introduced     by     the     Cortes 
the    struggle    with   the    French,    was    called 
absohttista.     The  term   Absolutist   spread   over   Eu- 
rope, and  was  applied  exclusively  to   absolute  mou- 
rn ;    but  absolute  power  may  exist  In  an  aris- 
tocracy  and    in    a  democracy    as  well.     Dr.    Lleber, 
uses    in    his    works    the    term    Absolute 
Democracy  for  that  government  in  which   the  pub- 
■  or  rests  unchecked  in  the  multitude   (practi- 
cally  speaking,   in   the  majority). 

ABSQUE      ALIQUO      INDE      REDDENDO 

(Eat.  without  reserving  any  rent  therefrom). 
A  term  used  of  a  free  grant  by  the  crown. 
2  Rolle,  Abr.  502. 

ABSQUE  HOC  (Lat).  Without  this.  See 
Traverse. 

ABSQUE  IMPETITI0NE  VASTI  (Lat 
without  impeachment  of  waste).     A  term  in- 


dicating freedom   from  any  liability   on   the 
part    of   the   tenant   or    lessee   to    I  in 

damages  for  the  waste  he  may  commit 
Waste. 

ABSQUE     TALI      CAUSA      (Lat.     without 
such  cause).     A  form  of  replication  in 
tion  ex  delicto  which  works  a  general  >. 
of  the  whole  matter  of  the  del 
of  de  injuria.    Gould,  PI.  c.  7,  §  10. 

ABSTENTION.     In  French  Law.     i 
renunciation    of    a    succession    by    an    heir. 
Merlin,  RCpert. 

ABSTRACT    OF    A    FINE.     A   part   of  the 
record  of  a  line,  consisting  of  an  abstri 
the  writ  of  covenant  and.  the  concord;    nam- 
ing the  parties,   the  parcel  of  land,  and  the 
agreement.     2  Bla.  Com.  35L 

ABSTRACT  OF  TITLE.  An  epitome,  or 
brief  statement  of  the  evidences  of  owner- 
ship of  real  estate  and  its  encumbra 
See  Smith  v.  Taylor,  82  Cal.  533 
217;  Simon  Safe  Deposit  Co.  v.  Chisholm. 
33  111.  App.  647;  Heinsen  v.  Lamb,  117  111. 
549,  7  N.  E.  75. 

An  abstract  should  set  forth  briefly,  hut 
clearly,  every  deed,  will,  or  other  instru- 
ment, every  recital  or  fact  relating  to  the 
devolution  of  the  title,  which  will  enable  a 
purchaser,  or  mortgagee,  or  his  counsel,  to 
form  an  opinion  as  to  the  exact  state  of  the 
title.  See  Hi  E.  .7.  Oh.  466;  Kane  v.  Rippey, 
22  Or.  296,  23  Pac.  ISO. 

In  England  this  is  usually  prepared  al 
expense  of  the  owner;    1   Dart,    V 
The  failure  to  deliver  an   ahstract  in 
land   relieves   the  purchaser   from    his 
tract  in  law;    id.  305.     It  should  run 
for  sixty  years;    or.  since  the  Act  of  ::- 
39  Vict.  c.   7S.  forty   years  prior  to  the  In- 
tended sale.  etc. 

In    the    United    States,    where    office 
registering  deeds  are  universal,  and  convey- 
ancing much  less  complicated,  absl 
much  simpler  than  in  England,  and  an 
ally    prepared    at    the   expense   of    the   pur- 
chaser, etc.,  or  by  his  conveyancer.     A  per- 
son preparing  (he  abstract  must  understand 
fully  all  the  laws  that  can  affect  r< 
Banker  v.  Caldwell,  r,  Minn.  91  (Gil.  4*1)  ;  and 
will  be  held  to  a  strict  responsibility  in  the 
exercise  of  the  confidence   reposed    in   him  : 
Vallette  v.  Tedens,  il'u  111.  607,  14  N. 
3  Am.  St  Rep.  502;   Brown  v. 
App.  317,  53  N.  E.  779.  72  Am.  St.  Rep. 
Young  v.   T.ohr,  US  la.  62 1.  02  N.    W 
Security   Abstract  of  Tit 

b.  469,  7<;  N.  w.  iot:;-.   but  his  liability 
is  not  that  of  a  guarantor  of  the  title: 

Trust  Inv.  Co.  v.   ! 
Fed.  "9:    Waceb  v.  Frink,  51  Minn.  2 
X.  W.  <;:'.:•..  .".^  Am.  St.  Rep.  502;    and  will  ex- 
tend only  to  his  en  3:  mns  v.  Cutter, 
9    Kan.    App.    21",  nitahle 
Building  &  Loan  Ass'n  v.   Bank,  118 
678,    L02   s.   W.  901,   12  L.  R.  A.  (N.  S.)  449, 
12  Ann.  Cas.  4G7. 


ABSTRACT  OF  TITLE 


94 


ABUT 


Where  an  abstract  of  title  is  made  for  a 
vendor,  warranted  to  be  true  and  perfect, 
the  vendee  refusing  to  take  the  property 
without  it,  the  company  making  it  was  held 
liable  for  omissions  in  it ;  Dickie  v.  Abstract 
Co.,  89  Tenn.  431,  14  S.  W.  S96,  24  Am.  St 
Rep.  616.  It  is  not  necessary  to  state  that 
the  descriptions  of  the  premises  in  the  vari- 
ous instruments  are  inconsistent;  American 
Trust  Inv.  Co.  v.  Abstract  Co.  (Tenn.  Ch. 
App.)  39  S.  W.  877.  Where  the  register  of 
deeds  records  full  satisfaction  instead  of  a 
partial  release  on  the  margin  of  the  mort- 
gage record,  an  abstract  maker  relying  on 
the  marginal  entry  is  guilty  of  negligence; 
Wacek  v.  Frink,  51  Minn.  282,  53  N.  W.  633, 
38  Am.  St.  Rep.  502. 

See  Equitable  Bldg.  &  L.  Ass'n  v.  Bank, 
118  Tenn.  67S,  102  S.  W.  901,  12  L.  R.  A. 
(N.  S.)  449,  12  Ann.  Cas.  407 ;  Ward.  Abstr. ; 
Title. 

ABSURDITY.  That  which  is  both  physi- 
cally and  morally  impossible.  State  v. 
Hayes,  81  Mo.  574. 

ABUSE.  Everything  which  is  contrary  to 
good  order  established  by  usage.  Merlin, 
Repert 

Among  the  civilians,  abuse  has  another  significa- 
tion, which  is  the  destruction  of  the  substance  of  a 
thing  in  using  it.  For  example,  the  borrower  of 
wine  or  grain  abuses  the  article  borrowed  by  using 
it,  because  he  cannot  enjoy  it  without  consuming  it. 

The  word  is  used  in  statutes  as  applied  to 
women  with  reference  only  to  sexual  inter- 
course, and  imports  an  offence  of  that  na- 
ture; 6  H.  &  N.  193;  and  is  held  synonymous 
with  ravish ;  Palin  v.  State,  38  Neb.  862,  57 
N.  W.  743. 

It  has  been  held  to  include  misuse;  Erie 
&  North-East  R  Co.  v.  Casey,  26  Pa.  287; 
to  signify  to  injure,  diminish  in  value,  or 
wear  away  by  improper  use;  id.;  to  be  syn- 
onymous with  injure;  Dawkins  v.  State,  58 
Ala.  376,  29  Am.  Rep.  754. 

Abuse  of  a  female  child  is  an  injury  to  the 
genital  organs  in  an  attempt  at  carnal  knowl- 
edge, falling  short  of  actual  penetration; 
Dawkins  v.  State,  58  Ala.  376,  29  Am.  Rep. 
754.     See  Rape. 

Abuse  of  distress  is  such  use  of  an  animal 
or  chattel  distrained  as  makes  the  distrainer 
liable  to  prosecution  as  for  wrongful  ap- 
propriation. 

Abuse  of  discretion.  A  discretion  exercis- 
ed to  an  end  or  purpose  not  justified  by  and 
clearly  against  reason  and  evidence.  Sharon 
v.  Sharon,  75  Cal.  1,  16  Pac.  345 ;  Murray  v. 
Buell,  74  Wis.  14,  43  N.  W.  549 ;  and  see  Peo- 
ple v.  R.  Co.,  29  N.  Y.  418. 

Abuse  of  process.  Intentional  irregular- 
ity for  the  purpose  of  gaining  an  advantage 
over  one's  opponent. 

ABUT.    To  reach,  to  touch. 
In  old  law,  the  ends  were  said  to  abut,  the  sides 
to  adjoin.     Cro.  Jac.  184. 

To  take  a  new  direction ;  as  where  a 
bounding  line  changes  its  course.     Spelman, 


Gloss.     Abuttare.      In    the   modern   law,   to 
bound  upon.    2  Chit  PL  660. 

In  Hughes  v.  R.  Co.,  130  N.  Y.  14,  28  N. 
E.  705,  an  abutting  lot  was  defined  as  a  lot 
bounded  on  the  side  of  a  public  street  in  the 
bed  or  soil  of  which  the  owner  of  the  lot  has 
no  title,  estate,  interest,  or  private  right  ex- 
cept such  as  are  incident  to  a  lot  so  situated. 
And  see  Abendroth  v.  R.  Co.,  122  N.  Y.  1, 
25  N.  E.  496,  11  L.  R.  A.  634,  19  Am.  St.  Rep. 
461.  Though  the  usual  meaning,  of  the  word 
is  that  the  things  spoken  of  do  actually  ad- 
join, "bounding  and  abutting"  have  no  such 
inflexible  meaning  as  to  require  lots  assess- 
ed or  improved  actually  to  touch  the  im- 
provement; Cohen  v.  Cleveland,  43  Ohio  St. 
190,  1  N.  E.  589;  1  Ex.  D.  336;  contra,  Holt 
v.  City  Council,  127  Mass.  408. 

Bounding  or  abutting  on  a  street  will  in- 
clude the  soil  of  a  private  road  opening  into 
the  street;  7  Q.  B.  183.  Where  a  strip  of 
ground  from  one  side  of  a  street  is  appro- 
priated for  the  purpose  of  widening  such 
street,  the  lots  fronting  on  the  opposite  sides 
of  the  street  at  the  part  widened  will  be 
deemed  to  abut  on  the  improvement,  though 
the  street  intervenes  between  the  abutting 
lots  and  the  strip  appropriated;  Cincinnati 
v.  Batsche,  52  Ohio  St.  324,  40  N.  E.  21,  27 
L.  R.  A.  536;  and  where  a  sidewalk  interven- 
ed between  the  street  improvement  and  lots 
bounding  on  the  sidewalk,  such  lots  were 
subject  as  "contiguous"  to  the  proposed  im- 
provement, to  special  taxation  to  defray  the 
expense  of  the  latter;  Chicago,  B.  &  Q.  R. 
Co.  v.  City  of  Quincy,  136  111.  563,  27  N.  E. 
192,  29  Am.  St.  Rep.  334. 

ABUTMENT.  The  walls  of  a  bridge  ad- 
joining the  land  which  support  the  end  of 
the  roadway  and  sustain  the  arches.  See 
Board  of  Chosen  Freeholders  of  Sussex 
County  v.  Strader,  18  N.  J.  L.  108,  35  Am. 
Dec.  530;  Bardwell  v.  Town  of  Jamaica,  15 
Vt.  438. 

ABUTTALS  (Fr.).  The  buttings  or  bound- 
ings  of  lands,  showing  to  what  other  lands, 
highways,  or  places  they  belong  or  are  abut- 
ting.   Termes  de  la  Ley. 

It  has  been  used  to  express  the  end 
boundary  lines  as  distinguished  from  those 
on  the  sides,  as  "buttals  and  sidings" ;  Cro. 
Jac.  183. 

ABUTTER.  One  whose  property  abuts,  is 
contiguous  or  joins  at  a  border  or  boundary, 
as  where  no  other  land,  road  or  street  in- 
tervenes. 

ABUTTING  OWNER.  An  owner  of  land 
which  abuts  or  adjoins.  The  term  usually 
implies  that  the  relative  parts  actually  ad- 
join, but  is  sometimes  loosely  used  without 
implying  more  than  close  proximity.  See 
Eminent  Domain;  Highway. 

AC  ETIAM  (Lat  and  also).  The  intro- 
duction of  the  statement  of  the  real  cause 
of  action,  used  in  those  cases  where  it  was 


AC  ETIAM 


95 


ACCEPTANCE 


necessary  to  allege  a  fictitious  cause  of  ac- 
tion to  give  the  court  jurisdiction,  and  also 
the  real  cause  in  compliance  with  the  stat- 
utes. It  was  first  used  in  the  K.  B.,  and 
wms  afterwards  adopted  by  C.  J.  North  in 
addition  to  the  quare  clausum  frcyit  writs 
of  his  court  upon  which  writs  of  capias 
might  issue  Be  balanced  for  a  time  whether 
he  should  not  use  the  words  nee  nan  Instead 
of  ao  ctiam.  it  is  sometimes  written  aceti- 
am.  2  Stra.  022.  This  clause  is  DO  I 
need  In  the  English  courts,  2  Will  iv.  <•. 
89.     S  Bla.  Com.  288.     See  Bill  of  B 

SEX. 

AC    ETIAM    BILL/€.     And  also   to  a   bill. 

See  Ac  En  am. 

ACADEMY.     An    institution    of    learning. 

An  association  of  experts  in  some  particular 
branch  of  art,  literature  or  science.  See 
School. 

ACCEDASAD  CURIAM  (Lat.  that  you  go 
to  court).  An  original  writ  issuing  out  of 
chancery  and  directed  to  the  sheriff,  for  the 
purpose  of  removing  a  suit  from  a  Court 
Baron  before  one  of  the  superior  courts  of 
law.  It  directs  the  sheriff  to  go  to  the  lower 
court,  and  enroll  the  proceedings  and  send 
up  the  record.     See  Fitzh.  N.  B.  18 ;  Dy.  169. 

ACCEDAS  AD  VICECOMITEM  (Lat 
that  you  go  to  the  sheriff).  A  writ  directed 
to  the  coroner,  commanding  him  to  deliver 
a  writ  to  the  sheriff,  when  the  latter,  having 
had  a  pone  delivered  him,  suppressed  it. 
Reg.  Orig.  83. 

ACCELERATION.  The  shortening  of  the 
time  for  the  vesting  in  possession  of  an  ex- 
pectant interest.     Wharton. 

ACCEPTANCE  (Lat.  accipere,  to  receive). 
The  receipt  of  a  thing  offered  by  another 
with  an  intention  to  retain  it,  indicated  by 
some  act  sulhcient  for  the  purpose.  2  Par- 
sons, Contr.  221.  It  is  necessary  that  each 
party  should  do  some  act  by  which  he  will 
be  bound;  3  B.  &  Aid.  GSO. 

The  element  of  receipt  must  enter  into  every  ac- 
ceptance, though  receipt  does  not  necessarily  mean 
in  this  sense  some  actual  manual  taking.  To  this 
element  there  must  be  added  an  intention  to  retain. 
This  intention  may  exist  at  the  time  of  the  receipt, 
or  subsequently  ;  It  may  be  indicated  by  words,  or 
■eta,  or  any  medium  understood  by  the  parties; 
and  an  acceptance  of  goods  will  be  implied  from 
mere  detention,  in  many  Instances. 

An  acceptance  involves  very  generally  the  Idea 
of  a  receipt  in  consequence  of  u  previous  under- 
taking on  the  part  of  the  person  offering  to  deliver 
such  a  thing  as  the  party  accepting  is  in  some  man- 
ner bound  to  receive.  It  is  through  this  meaning 
that  the  term  acceptance,  as  used  in  reference  to 
bills  of  exchange,  has  a  relation  to  the  more  gen- 
eral use  of  the  term.  As  distinguished  from  assent, 
acceptance  would  denote  receipt  of  something  in 
compliance  with,  and  satisfactory  fulfilment  of,  a 
Contract  to  which  assent  had  been  previously  given, 
and  the  word  has  been  held  to  mean  sonnthim: 
more  than  receive;  Hall  v.  Los  Angeles  County,  74 
Cal.  502,  16  Pac.   313.     See  Assent. 

Under  the  statute  of  frauds  delivery  and 
acceptance  are  necessary  to  complete  an  oral 


contract  for  the  sale  of  goods,  in  i 

In  such  cases  it  is  said  the  a< 

be   absolute  and  past  recall ;   2    I 

McCulloch  v.  Ina  I 

Mahan  v.   United   States,   16  Wall.    (1 

146,  21    l.  Ed  307.     if  an  article  Is  found 

I ve,    hut    Is   retained  and   used,    11 
sufficient  acceptance;    Logan    v.    Apartment 
::  Misc.  Rep.  296,  22  N.  Y.  Sup] 
Ivered  to  a  third  ; 
order  of  the  purchaser  they  ed  to 

.in  received  and  accepted  by  the  ha- 
ter through  his  agent ;  S< b  Hardware 
Co.,  88  Ga.  578,  15  S.   B.  327.     Where 
lial  contract  was  made  for  the  sale  of  goods 
to  be   delivered   at  a   sp                  int   where 
purchaser  was  to  pay  freight  for  the 
it   was  held  tliat  the  acceptance  by  the  car- 
rier and  possession  of  freight  after  reaching 
its  destination,  was  not  such  an  acceptance 
by    purchaser   as    would    take   it  out  of  the 
statute;    Agnew  v.    Dumas,   '"-l    Vt.    147,   23 
Atl.  <;:!4.     As  to  how  far  a  right  to  make  fu- 
ture   objections    Invalidates    an    acceptance, 
see  3  B.  &  Aid.  6S0;  10  Q.  B.  Ill  ;  6  I 
903.     See  Delivery;    Bailment;   Sale. 

Of  a  Dedication.     See  that  title. 

Of  Bills  of  Exchange.  An  engagement  to 
pay  the  bill  In  money  when  due.  4  Ea^  72  : 
Byles,  Bills  288. 

An  acceptance  is  said  to  be: 

Absolute,  which  is  a  positive  engagement 
to  pay  the  bill  according  to  Its  tenor. 

Conditional,  which  is  an  undertaking  to 
pay  the  bill  on  a  conting 

The  holder  is  not  bound  to  receive  such  an  accept- 
ance,   but   if  he   does   receive    it,    t 
terms;    4  M.   &  S.  466;    Freeman   v 
C.   C.  485,  Fed.   Cas.  No.  5,087  ;    Dan.  Neg.   Ir; 
For    some   examples   of   what   do  and   what    do    not 
constitute    conditional    acceptances,    see    6    C.    &    P. 
218  ;    3  C.  B.  841  ;    Heaverin  v.  Donnell,  7  Snv 
M.    (Miss.)   245,   45   Am.   Dec.  302 ;    Campbell    i 
tengill,  7  Greenl.   (Me.)  12C,  '20  An:.    .  Swan- 

sey   v.    Breck,   10  Ala.   533;     Hunt'in    v.    Ingraham,  1 
Strob.    (S.   C.)   271;     Tassey   v.    Church. 
(Pa.)  346;    Cook  v.  Wolfendale,  105  Ma.- 
shall    v.    Clary,   44    Ga.    513 ;      Ray    v.    Faulkner.    73 
111.   469;     Stevens  v.    Power    Co.,    ■  Pope 

v.  Huth,  14   Cal.  407;    Palmer   v.      . 
55    N.    W.    256;     Vanstrum    v.    Liljengren,   37    Minn. 
191,   33  N.    W.   555  ;     Gerow  v.    Riffe,  29   W.   Va.   4C2. 
2  S.   E.   104. 

Express  or  absolute,  which  is  an  undertak- 
ing in  direct  and  express  terms  to  pay  the 
bill. 

Implied,  which  is  an  undertal  I 
the  bill  Inferred  from  acts  of  a 
Which    fairly   warrant    such   an    Inference, 

Where  one  recti  ■ 
knowing   that  a   draft  b 

their  price,  t  la  is  equiva- 

lent to   an   ac  of  tho  draft;    Hall   v.   Bank, 

133  111.  234,  21   N.    E.  546. 

if  the   payee   writes  upon  a   bill  of  ex- 

■    drawn    uihui    him    the    words    "pay- 
able the    l"'th   day    of   May,   1883,"   and 
it,  it  constitutes  a  qualified  acceptance;  Yan- 
Btrum  v.  Liljengren,  37  Aliun.  191,  33  N.  YV. 


ACCEPTANCE 


96 


ACCEPTANCE 


Partial,  which  is  one  varying  from  the 
tenor  of  the  bill. 

An  acceptance  to  pay  part  of  the  amount  lor 
which  the  bill  is  drawn,  1  Strange  214;  Freeman  v. 
Perot,  2  Wash.  C.  C.  485,  Fed.  Cas.  No.  5,087;  or 
to  pay  at  a  different  tims.  14  Jur.  806;  Hatcher  v. 
Stolworth,  25  Miss.  376;  Molloy,  b.  2,  c.  10,  §  20; 
or  at  a  different  place,  4  M.  &  S.  462,  would  be  par- 
tial. 

Qualified,  which  is  either  conditional  or 
partial,  and  introduces  a  variation  in  the 
sum,  time,  mode,  or  place  of  payment;  1 
Dan.  Neg.  Inst.  414. 

Supra  protest,  which  is  the  acceptance  of 
the  bill  after  protest  for  non-acceptance  by 
the  drawee,  for  the  honor  of  the  drawer  or 
a  particular  indorser.  See  Acceptob  Supba 
Protest. 

When  a  bill  has  been  accepted  supra  protest  for 
the  honor  of  one  party  to  the  bill,  it  may  be  accept- 
ed supra  protest  by  another  individual  for  the  hon- 
or of  another;  Beawes,  Lex  Merc.  Bills  of  Ex- 
change, pi.  52;    5  Camp.  447. 

J  The  acceptance  must  be  made  by  the 
drawee  or  some  one  authorized  to  act  for 
him.  The  drawee  must  have  capacity  to  act 
and  bind  himself  for  the  payment  of  the 
bill,  or  it  may  be  treated  as  dishonored.  See 
Acceptob   Stjpba  Protest  ;  2  Q.  B.  16. 

The  acceptance  and  delivery  of  negotia- 
ble paper  on  Sunday  is  void  between  the 
parties,  but  if  dated  falsely  as  of  another 
day,  it  is  good  in  the  hands  of  an  innocent 
holder;  Harrison  v.  Powers,  76  Ga.  218. 

It  may  be  made  before  the  bill  is  drawn, 
in  which  case  it  must  be  in  writing;  Wilson 
v.  Clements,  3  Mass.  1 ;  Goodrich  v.  Gordon, 
15  Johns.  (N.  Y.)  6;  Kendrick  v.  Campbell, 
1  Bail.  (S.  C.)  522;  Williams  v.  Winans,  14 
N.  J.  L.  339;  Vance  v.  Ward,  2  Dana  (Ky.) 
95;  Read  v.  Marsh,  5  B.  Monr.  (Ky.)  8,  41 
Am.  Dec.  253;  Howland  v.  Carson,  15  Pa. 
453;  Beach  v.  Bank,  2  Ind.  488;  Lewis  v. 
Kramer,  3  Md.  265 ;  Coolidge  v.  Payson,  2 
Wheat  (U.  S.)  66,  4  L.  Ed.  185;  Cassel  v. 
Dows,  1  Blatchf.  335,  Fed.  Cas.  No.  2,502. 
It  may  be  made  after  it  is  drawn  and  before 
it  comes  due,  which  is  the  usual  course,  or 
after  it  becomes  due;  1  H.  Bla.  313;  Wil- 
liams v.  Winans,  14  N.  J.  L.  339 ;  or  even 
after  a  previous  refusal  to  accept;  5  East 
514;  Mitchell  v.  Degrand,  1  Mas.  170,  Fed. 
Cas.  No.  9,661.  It  must  be  made  within 
twenty-four  hours  after  presentment,  or  the 
holder  may  treat  the  bill  as  dishonored; 
Chit.  Bills,  212,  217.  And  upon  refusal  to 
accept,  the  bill  is  at  once  dishonored,  and 
should  be  protested;  Chit.  Bills,  217. 

It  may  be  in  writing  on  the  bill  itself  or 
on  another  paper ;  4  East  91 ;  Nimocks  v. 
Woody,  97  N.  C.  1,  2  S.  E.  249,  2  Am.  St. 
Rep.  268 ;  and  it  seems  that  the  holder  may 
insist  on  having  a  written  acceptance,  and  in 
default  thereof  consider  the  bill  as  dishonor- 
ed ;  1  Dan.  Neg.  Inst.  406 ;  or  it  may  be  oral ; 
6  C.  &  P.  218;  Leonard  v.  Mason,  1  Wend. 
(N.  Y.)  522;  Williams  v.  Winans,  14  N.  J. 
L.  339;  Walker  v.  Lide,  1  Rich.  (S.  C.) 
249,   44  Am.   Dec.   252;    Edson  v.   Fuller,  22 


N.  H.  183;  Pierce  v.  Kittredge,  115  Mass. 
374;  Scudder  v.  Bank,  91  U.  S.  406,  2:]  L. 
Ed.  245;  Sturges  v.  Bank,  75  111.  595;  11 
Moore  320  (by  the  Law  Merchant;  PolL 
Contr.  164)  ;  an  acceptance  by  telegraph 
has  been  held  good;  Coffman  v.  CarnpbelL 
87  111.  98;  Central  Sav.  Bank  v.  Richards, 
109  Mass.  414;  Garrettson  v.  Bank,  39  Fed. 
163,  7  L.  R.  A.  428;  In  re  Armstrong,  41  Fed. 
381 ;  Garrettson  v.  Bank,  47  Fed.  8C>7 ;  North 
Atchison  Bank  v.  Garretson,  51  Fed.  168,  2 
C.  C.  A.  145 ;  but  must  now  be  in  writing  in 
many  states.  The  usual  form  is  by  writing 
"accepted"  across  the  face  of  the  bill  and 
signing  the  acceptor's  name ;  1  Pars.  Contr. 
223;  1  Man.  &  R.  90;  but  the  drawee's  name 
alone  is  sufficient,  or  any  words  of  equiva- 
lent foroe  to  accepted.  See  Byles,  Bills  147 ; 
1  Atk.  611;  1  Man.  &  R.  90;  Parkhurst  v. 
Dickerson,  21  Pick.  (Mass.)  307;  Orear  v. 
McDonald,  9  Gill.  (Md.)  350,  52  Am.  Dec. 
703.  So  if  the  drawee  writes  the  word  "ac- 
cept" and  signs  his  name;  Cortelyou  v.  Ma- 
ben,  22  Neb.  697,  36  N.  W.  159,  3  Am.  St 
Rep.  2S4. 

The  drawee  cannot  make  his  acceptance 
after  the  bill  has  been  delivered  to  the  hold- 
er's agent,  though  it  had  not  been  communi- 
cated to  the  holder ;  Fort  Dearborn  Bank  v. 
Carter,  152  Mass.  34,  25  N.  E.  27.  See  Trent 
Tile  Co.  v.  Bank,  54  N.  J.  L.  599,  25  Atl.  411. 

Unless  forbidden  by  statute,  a  parol  prom- 
ise upon  sufficient  consideration  to  accept 
a  bill  of  exchange  binds  the  acceptor ;  Scud- 
der v.  Bank,  91  U.  S.  406,  23  L.  Ed.  245; 
Hall  v.  Cordell,  142  U.  S.  116,  12  Sup.  Ct 
154,  35  L.  Ed.  956;  Sturges  v.  Bank,  75  111. 
595 ;  11  M.  &  W.  3S3 ;  Neumann  v.  Schroeder, 
71  Tex.  81,  8  S.  W.  632;  Short  v.  Blount,  99 
N.  C.  49,  5  S.  E.  190;  Kelley  v.  Greenough, 
9  Wash.  659,  38  Pac.  158;  Barney  v.  Worth- 
ington,  37  N.  Y.  112;  Bank  of  Rutland  v. 
Woodruff,  34  Vt  92;  [1894]  2  Q.  B.  S85; 
contra,  Haeberle  v.  O'Day,  61  Mo.  App.  390; 
Erickson  v.  Inman,  34  Or.  44,  54  Pac.  949; 
but  the  Uniform  Negotiable  Instruments  Act 
in  force  in  nearly  all  the  states  (see  Nego- 
tiable Instruments)  requires  a  written  ac- 
ceptance; see  much  learning  in  Walker  v. 
Lide,  1  Rich.  (S.  C.)  249,  44  Am.  Dec.  253; 
Allen  v.  Leavens,  26  Or.  164,  37  Pac.  488, 
26  L.  R.  A.  620,  46  Am.  St  Rep.  613;  Lind- 
ley  v.  Bank,  76  la.  629,  41  N.  W.  381,  2  L. 
R.  A.  709,  14  Am.  St.  Rep.  254. 

As  to  what  law  governs  the  mode  of  ac- 
ceptance, see  61  L.  R.  A.  196,  n.,  where  the 
cases  are  examined  and  the  conclusion 
reached  that  the  weight  of  authority  is  in 
favor  of  the  law  of  the  place  where  the 
agreement  to  accept  was  made,  rather  than 
that  of  the  place  of  payment. 

Where  the  holder  of  an  overdue  bill  of  ex- 
change agrees  by  parol  to  accept  payment  in 
instalments,  the  failure  of  acceptor  to  carry 
out  his  contract  does  not  release  the  drawer ; 
Trotter  v.  Phillips,  2  Pa.  Dist.  R.  279. 

An  acceptance  made  payable  at  a  bank  au- 


ACCEPTANCE 


97 


ACCEPTOR  SUPRA  PROTEST 


thorizcs  its  payment  and  charge  to  the  ac- 
ceptor's  account;  18  L.  J.  Q.  B.  218;  Byles, 
Bills  198.  But  the  acceptor  is  not  liable  un- 
less he  i  to  its  being  so  made  paya- 
ble; id.  188;  1 1  East  5S2;  and  he  may  prove 
that  he  was  ready  to  pay  at  the  place  nam- 
ed;  Green   v.  Goings,  7   Barb.    (N.   Y.)    652. 

The  acceptance  of  forged  paper  and  its 
payment  by  the  drawer  to  a  bona  fide  hold- 
er gives  no  right  of  action  to  recover  back 
the  money;  Hortsman  v.  Henshaw,  11  How. 
(TJ.  s.i  177,  13  L.  Ed.  653;  so  also  of  bills 
accompanied  by  a  forged  bill  of  lading: 
Hoffman  &  Co.  v.  Bank,  12  Wall.  fU.  S.) 
181,  20  L,  Ed.  366. 

See  Check.  As  to  acceptance  of  offer, 
see  Offer. 

See  Bill  of  Exchange;  Protest;  AC- 
CEPTOR. 

ACCEPTILATION.  |n  Civil  Law.  A  re- 
lease made  by  a  creditor  to  his  debtor  of  his 
debt  without  receiving  any  consideration. 
Ayl.  Pand.  tit.  26,  p.  ."",7)1.  It  is  a  spec 
donation,  but  not  subject  to  the  forms  of  the 
latter,  and  is  valid  unless  in  fraud  of  credi- 
tors.    Merlin,   Ropert. 

Acceptilation  may  be  defined  verborum  conceptio 
qua  creditor  debitori,  quod  debet,  acccptum  fcrt; 
or,  a  certain  arrangement  of  words  by  which,  on 
the  question  of  the  debtor,  the  creditor,  wishing 
to  dissolve  the  obligation,  answers  that  he 
as  received  what  in  fact  he  has  not  received.  The 
acceptilation  is  an  imaginary  payment;  Dig.  46.  4. 
1.  19;    Dig.  2.   14.  27.   9;    Inst.   3.  30.   1. 

ACCEPTOR.  One  who  accepts  a  bill  of 
exchange.     3  Kent  75. 

The  party  who  undertakes  to  pay  a  bill  of 
exchange  in  the  first  instance. 

The  drawee  is  in  general  the  acceptor; 
and  unless  the  drawee  accepts,  the  bill  is 
dishonored.  The  acceptor  of  a  bill  is  the 
principal  debtor,  and  the  drawer  the  surety. 
He  is  bound,  though  he  accepted  without 
consideration  and  for  the  sole  accommoda- 
tion of  the  drawer.  By  his  acceptance  he 
admits  the  drawer's  handwriting;  for  before 
acceptance  it  was  incumbent  upon  him  to  in- 
quire into  the  genuineness  of  the  drawer's 
handwriting;  3  Kent  75;  3  Burr.  1384;  1 
W.  Bla.  390;  Levy  v.  Bank,  4  Dall.  (U.  S.) 
234,  1  L.  Ed.  814. 

The  drawee  by  acceptance  only  vouches 
for  the  genuineness  of  the  signature  of  the 
drawer  and  not  of  the  body  of  the  instru- 
ment; White  v.  Bank,  64  N.  Y.  31G,  21  Am. 
Pep.  612;  Young  &  Son  v.  Lehman,  Durr  & 
Co..  G3  Ala.  51«  i. 

See  Acceptance. 

ACCEPTOR  SUPRA  PROTEST.  One  who 
accepts  a  bill  which  has  been  protested,  for 
the  honor  of  the  drawer  or  any  one  of  the 
endorsers. 

Any  person,  even  the  drawee  himself,  may 
accept  a  bill  supra  protest;  Byles,  Bills  *262, 
and  two  or  more  persons  may  become  ac- 
ceptors supra  protest  for  the  honor  of  differ- 
ent persons.  A  general  acceptance  supra 
Bouv.— 7 


protest  is  taken  to  be  for  the  honor  of 
drawer;  P.yles,  Bills  *2G3.     The  obligation  of 
an  acceptor  supra  protest  is  not  abs         •  but 
only  to  pay  if  the  drawee  do  not 
391.     See  Schofield  v.  Bayard,  •".  V, 
Y.)    491;   Paring  v.  Clark,   19   : 
220;  Exeter  Bank  v.  cordon,  8  N.  II.  •  ;<;.    An 
acceptor     supra     protest     has     his     re 
against   the   person   for  whose  honor  he  ae- 
cepted,  and  against  all   persons     ■ 
prior  to  that  person.     If  he  takes  up  the  bill 
for  the  honor  of  the  endorser,   he  stands  in 
the  light  of  an  endorsee  paying  full   value 
for  the  bill,  and   has  the  same  n 
which  an  endorsee  would  be  entitl 
all   prior  parties,  and   be  can,  of  cour 
the   drawer   and    endorser;    l    Esp.    112;    3 
Kent  75;  Chit.    Bills  312.     The  acceptor  su- 
pra protest  is  required  to  give  the       me  no- 
tice,   in   order  to   charge  a    party,    which   is 
necessary    to    be    given    by    other    holders; 
Baring  v.  Clark,  19  Pick.   (Ml 

If  a  bill  is  accepted  and  is  subsequently 
dishonored,  the  acceptor  cannot  then  accept 
for  the  honor  of  the  endorser,  as  he  is  al- 
ready bound;  13  Ves.  Jr.  180. 

See  Acceptance. 

ACCESS.  Approach,  or  the  means  or  pow- 
er of  approaching. 

Sometimes  by  access  is  understood  sexual  Inter- 
course ;  at  other  times,  the  opportunity  of  commu- 
nicating together  so  that  sexual  intercourse  may 
have  taken  place,  Is  also  called  access. 

In   this  sense  a  man  who  can  readily  be  In   com- 
pany with  his  wife  is   said   to  have  access    i 
and  in  that  case  her  issue  are  presumed  to   be  his 
Issue.     But   this    presumption   may  be    rebut- 
positive    evidence   that    no    sexual    intercourse    took 
place;    1  Turn.  &  R.  141. 

Parents  are  not  allowed  to  prove  non-ac- 
cess for  the  purpose  of  bastard!  issue 
of  the  wife,   whether  the  action  be  civil  or 
criminal,  or  whether  the   proceeding   is  one 
of  settlement  or  bastardy,  or  to  recover  prop- 
erty claimed  as  heir  at  law;    Bull.  N.  P.  113; 
Bowles   v.    Bingham,   2   Muni    (Ya.) 
Am.  Dec.  497;    State  v.  Pettaway,  10 
G23;    Cross  v.  Cross,  3  Pai.  Ch.  (N.  Y.)  139, 
23   Am.    Dec.    77s;     Mink   v.    State,    GO    Wis. 
5S4,  19  N.  W.    115,  50  Am.  Rep.  386;    Bell  v. 
Territory,  8  Okl.  7.'.,  56  Pac.   853;    State  v. 
Bavin,  SO  la.  555,  46  N.   W.  E                 ert  v. 
Greenwalt,   44   Mich,    -15,   6  N.   W.   6 
Am.  Pep.  266;    Tioga  County  v.  South  I 
Township,    75    Pa.    43G,    where    the   common 
law  rule  was  applied  in  an   extreme 
and  was  held  not  to  be  affected  by  the  stat- 
ute abolishing  the  disqualification 
by   reason   of   interest     The   rule  has   been 
held  to  be  modified  by  statutes;    Evans  v. 
siate.    165   Iml.  36§,  74  N.   10.  244,   75   N.   B. 
651,  6  Ann.  Cas.  S13,  2  L.  K.  A.  ( N.  S.)   619 
(where   the  cases  are  collected   in   a   note) ; 
v.  McDowell,   101   N.   C.  734,   7   s.    El 
785,  which  changes  the  rule  as  laid  down  in 
Boykln  v.  Boykin,  70  N.  C.  263,  1G  Am.  Rep. 
776. 

Non-access  is  not  presumed  from  the  mere 


ACCESS 


98 


ACCESSION 


fact  that  husband  and  wife  lived  apart;  1 
Gale  &  D.  7.  See  3  C.  &  P.  215 ;  1  Sim.  & 
S.  153 ;   1  Greenl.  Ev.  §  28. 

In  Canon  Law.  The  right  to  some  bene- 
fice at  some  future  time. 

ACCESSIO  (Lat).  An  increase  or  addi- 
tion; that  which  lies  next  to  a  thing,  and 
is  supplementary  and  necessary  to  the  prin- 
cipal thing:  that  which  arises  or  is  produced 
from  the  principal  thing.     Calvinus,  Lex. 

A  manner  of  acquiring  the  property  in  a 
thing  which  becomes  united  with  that  which 
a  person  already  possesses. 

The  doctrine  of  property  arising  from  accessions 
Is  grounded  on  the  rights  of  occupancy.  It  is  said 
to  be  of  six  kinds  in  the  Roman  law. 

First.  That  which  assigns  to  the  owner  of  a 
thing  its  products,  as  the  fruit  of  trees,  the  young 
of   animals. 

Second.  That  which  makes  a  man  the  owner  of 
a  thing  which  is  made  of  another's  property,  upon 
payment  of  the  value  of  the  material  taken.  See 
La.  .Civ.  Code,  art.  491.  As  where  wine,  bread,  or 
oil  is  made  of  another  man's  grapes  or  olives;  2 
Bla.  Com.  404;  Babcock  v.  Gill,  10  Johns.  (N.  T.) 
288. 

Third.  That  which  gives  the  owner  of  land  new 
land  formed  .by  gradual  deposit.  See  Accretion  ; 
Alluvion. 

Fourth.  That  which  gives  the  owner  of  a  thing 
the  property  in  what  is  added  to  it  by  way  of 
adorning  or  completing  it;  as  if  a  tailor  should  use 
the  cloth  of  B.  in  repairing  A.'3  coat,  all  would 
belong  to  A.  ;  but  B.  would  have  an  action  against 
both  A.  and  the  tailor  for  the  cloth  so  used.  This 
doctrine  holds  in  the  common  law;  F.  Moore  20; 
Poph.   38 ;    Brooke,  Abr.  Properties  23. 

Fifth.  That  which  gives  Islands  formed  in  a 
stream  to  the  owner  of  the  adjacent  lands  on  either 
side. 

Sixth.  That  which  gives  a  person  the  property  in 
things  added  to  his  own  so  that  they  cannot  be 
separated   without    damage.     Guyot,    Repert.    Univ. 

Accessio  includes  both  accession  and  ac- 
cretion as  used  in  the  common  law. 

An  accessory  obligation,  and  sometimes 
also  the  person  who  enters  into  an  obligation 
as  surety  in  which  another  is  principal.  Cal- 
vinus, Lex. 

ACCESSION.  Coming  into  possession  of 
a  right  or  office ;  increase ;  augmentation ; 
addition. 

The  right  to  all  which  one's  own  property 
produces,  whether  that  property  be  movable 
or  immovable,  and  the  right  to  that  which  is 
united  to  it  by  accessary,  either  naturally  or 
artificially.    2  Kent  360 ;   2  Bla.  Com.  404. 

If  a  man  hath  raised  a  building  upon  his 
own  ground  with  the  material  of  another,  or 
If  a  man  shall  have  built  with  his  own  ma- 
terials upon  the  ground  of  another,  in  either 
case  the  edifice  becomes  the  property  of  him 
to  whom  the  ground  belongs ;  for  every 
building  is  an  accession  to  the  ground  upon 
which  it  stands;  and  the  owner  of  the 
ground,  if  liable  at  all,  is  only  liable  to  the 
owneri  of  the  materials  for  the  value  of  them  ; 
Inst.  2.  1.  29,  30 ;  2  Kent  362.  And  the  same 
rule  holds  where  trees,  vines,  vegetables,  or 
fruits  are  planted  or  sown  in  the  ground  of 
another;    Inst.  2.  1.  31,  32. 

The  building  of  a  rail  fence  on  another's 


land  vests  the  rails  in  the  owner  of  the  land ; 
Wentz  v.  Fincher,  34  N.  C.  297,  55  Am.  Dec. 
416.  And  see  Merritt  v.  Johnson,  7  Johns. 
(N.  Y.)  473,  5  Am.  Dec.  2S9 ;  Pulcifer  v.  Page, 
32  Me.  404,  54  Am.  Dec.  582. 

If  the  materials  of  one  person  are  united 
by  labor  to  the  materials  of  another,  so  as 
to  form  a  single  article,  the  property  in  the 
joint  product  is,  in  the  absence  of  any  agree- 
ment, in  the  owner  of  the  principal  part  of 
the  materials  by  accession ;  Merritt  v.  John- 
son, 7  Johns.  (N.  Y.)  473,  5  Am.  Dec.  2S9; 
Stevens  v.  Briggs,  5  Pick.  (Mass.)  177;  Glo- 
ver v.  Austin,  6  id.  209 ;  Pulcifer  v.  Page,  32 
Me.  404,  54  Am.  Dec.  5S2,  and  note  (where  the 
whole  subject  is  treated) ;  Beers  v.  St.  John, 
16  Conn.  322 ;  Inst.  2.  1.  26 ;  Eaton  v.  Lynde, 
15  Mass.  242 ;  Wetherbee  v.  Green,  22  Mich. 
311,  7  Am.  Rep.  653;  Ryder  v.  Hathaway,  21 
Pick.  (Mass.)  305;  Stephens  v.  Santee,  49 
N.  Y.  35;  Mack  v.  Snell,  140  N.  Y.  193,  35 
N.  E.  493,  37  Am.  St.  Rep.  534.  But  a  ves- 
sel built  of  materials  belonging  to  different 
persons,  it  has  been  said,  will  belong  to  the 
owner  of  the  keel,  according  to  the  rule,  pro- 
prietas  totius  navis  carinw  causam  sequitur; 
2  Kent  361 ;  Glover  v.  Austin,  6  Pick.  (Mass.) 
209;  Merritt  v.  Johnson,  7  Johns.  (N.  Y.) 
473,  5  Am.  Dec.  2S9;  Johnson  v.  Hunt,  11 
Wend.  (N.  Y.)  139;  but  see  Coursin's  Ap- 
peal, 79  Pa.  220.  It  is  said  to  be  the  doc- 
trine of  the  civil  law,  that  the  rule  is  the 
same  though  the  adjunction  of  materials 
may  have  been  dishonestly  contrived;  for, 
in  determining  the  right  of  property  in  such 
a  case,  regard  is  had  only  to  the  things  join- 
ed, and  not  to  the  persons,  as  where  the  ma- 
terials are  changed  in  species ;  Wood,  Inst. 
93 ;   Inst.  2.  1.  25.     And  see  Aojunction. 

The  tree  belongs  to  the  owner  of  the  land 
on  which  the  root  is,  and  its  fruit  is  to  the 
owner  of  the  tree;  1  Ld.  Raym.  737;  al- 
though limbs  overhang  a  neighbor's  land; 
Hoffman  v.  Armstrong,  46  Barb.  (N.  Y.)  337. 
The  original  title  to  ice  is  in  the  possessor 
of  the  water  where  it  is  formed;  State  v. 
Pottmeyer,  33  Ind.  402,  5  Am.  Rep.  224 ;  Hig- 
gins  v.  Kusterer,  41  Mich.  318,  2  N.  W.  13, 
32  Am.  Rep.  160 ;  but  the  sale  of  ice  in  the 
water  is  a  sale  of  personalty;  id. 

Where,  by  agreement,  an  article  is  manu- 
factured for  another,  the  property  in  the 
article,  while  making  and  when  finished, 
vests  in  him  who  furnished  the  whole  or 
the  principal  part  of  the  materials;  and 
the  maker,  if  he  did  not  furnish  the  same, 
has  simply  a  lien  upon  the  article  for  his 
pay;  Jones  v.  Gardner,  10  Johns.  (N.  Y.) 
268;  Eaton  v.  Lynde,  15  Mass.  242;  Worth 
v.  Northam,  26  N.  C.  102;  Foster  v.  Warner, 
49  Mich.  641,  14  N.  W.  673;  Eaton  v.  Mun- 
roe,  52  Me.  63. 

The  increase  of  an  animal,  as  a  general 
thing,  belongs  to  the  owner  of  the  dam  or 
mother;  Arkansas  Valley  Land  and  Cattle 
Co.  v.  Mann,  130  U.  S.  69,  9  Sup.  Ct.  458,  32 
L.  Ed.  854 ;    Stewart  v.  Ball's  Adin'r,  33  Mo. 


ACCESSION 


99 


SION 


L54;  Hanson  v.  Millett,  55  Me.  184;  Hazel- 
baker  v.  Goodfellow,  64  111.  238;  but,  if  it 
be  let  to  another,  tbe  person  who  thus  be- 
comes the  temporary  proprietor  will 
titled  to  its  Increase;  Putnam  v.  Wyley,  8 
Johns.  (X.  Y.)  435,  5  Am.  Dec.  346;  Inst.  2.  l. 
3S;  Hanson  v.  Millett,  65  Me.  184;  Stewart 
v.  Ball's  Adm'r,  33  Mo.  154;  Kellogg  v. 
ly,  46  Mich.  131,  8  N.  W.  699,  -11  Am. 
Rep.  151;  though  it  bus  been  held  that  this 
would  not  be  Uie  consequence  of  simply  put- 
ting a  mare  to  pasture,  in  consideration  of 
her  services;  Heartley  v.  P..  .aim,  2  Pa,  166. 
The  increase  of  a  female  animal  held  under 
a  bailment  or  executory  contract  In  longs  to 
the  hailor  or  vendor  until  the  agreed  price 
is  paid;  Allen  v.  Delano,  55  Me.  113,  92  Am. 
Dec.  573;  Elmore  v.  Fitzpatrlck,  56  Ala.  400. 
See  note  as  to  title  to  increase  of  animals; 
17  L.  EL  A.  81.  The  Civil  Code  of  Louisiana, 
following  the  Roman  law,  made  a  distinc- 
tion in  respect  of  the  issue  of  slaves,  which, 
though  horn  during  the  temporary  use  or 
hiring  of  their  mothers,  belonged  not  to  the 
hirer,  but  to  the  permanent  owner;  Inst.  2. 
1.  37;  and  see  Jordan  v.  Thomas,  31  Miss. 
557 ;  Seay  v.  Bacon,  4  Sneed  (Tenn.)  99,  67 
Am.  Dec.  G01 ;  2  Kent  3G1 ;  Fowler  v.  Mer- 
rill, 11  How.  (U.  S.)  396,  13  E.  Ed.  736.  But 
the  issue  of  slaves  horn  during  a  tenancy  for 
life  belonged  to  the  tenant  for  life;  Bohn  v. 
Headley,  7  Harr.  &  J.  (Md.)  257. 

If  there  be  a  sale,  mortgage,  or  pledge  of 
a  chattel,  carried  into  effect  by  delivery  or 
by  a  recording  of  the  mortgage  where  that 
is  equivalent  to  a  delivery,  and  other  ma- 
terials are  added,  afterward-,  by  the  labor 
of  the  vendor  or  mortgagor,  these  pass  with 
the  principal  by  accession;  Farwell  v.  Smith, 
12  Tick.  (Mass.)  83;  Jenckes  v.  Goffe,  1  R.  I. 
511. 

If,  by  the  labor  of  one  man,  the  property 
of  another  has  been  converted  into  a  thing 
of  different  species,  so  that  its  identity  is  de- 
stroyed, the  original  owner  can  only  recover 
the  value  of  the  property  in  its  unconverted 
state,  and  the  article  itself  will  belong  to  the 
person  who  wrought  the  conversion,  if  he 
wrought  it  believing  the  material  to  be  his 
oun.  Such  a  change  is  said  to  be  wrought 
when  wheat  is  made  into  bread,  olives  into 
oil,  or  grapes  into  wine;  Inst.  2.  1.  25;  Sils- 
hury  v.  McCoon,  4  Denio  (N.  Y.)  332;  Year 
B.  5  II.  VII.  15;  Brooke,  Abr.  Property  23; 
or  bricks  out  of  clay;  Baker  v.  Meisch,  29 
Neb.  227,  45  N.  W.  685. 

But,  if  there  be  a  mere  change  of  form  or 
value,  which  does  not  destroy  the  identity  of 
the  materials,  the  original  owner  may  still 
reclaim  them  or  recover  their  value  as  thus 
Improved;  Brooke,  Abr.  Property  23;  E. 
Moore  20;  Wright  v.  Douglass,  2  X.  Y.  379; 
Frost  v.  Willard,  9  Barb.  (N.  Y.)  440.  So, 
if  the  change  have  been  wrought  by  a  wilful 
trespasser,  or  by  one  who  knew  that  the  ma- 
terials were  not  his  own;  in  such  case,  how- 
ever radical  the  change  may  have  been,  the 


owner   may  reclaim   them,   or 

value  in  their  new  shape:    Wooden-Wai 

v.  !  .  s  ,  106  i".  B.  432,  1  Su]  , 

Ed.  230,  thus,  where  whi 

of  am  .'ii,  Wrigb 

9;     Bhingles    out    of    ai 
Chandler  v.  Edson,  U  Johns.  (N.  Y.)  ! 
out    of    another's    Wood,    Curtis    v. 
Johns.  (N.  Y.)  168,  6  Am. 
Driver,  12  Ala.  590;    Leather  ■ 
hides,  Hyde  v.  Cookson,  21  Barb.  (N.  S 
in  all   these  cases,   the  ( 

by  one  who  knew   the  mat- 
another's,  the  original  owner  was  |  ,  id  to   !e 
entitled  to  recover  the  property,  or  its  value 
in    the    improved    or   convert'  i 
see   Snyder   v.    Yaux,  2    Rawle   (Pa.)   427,   21 
Am.  Dec.   166;   Betta  v.  Lee,  5  J  (N.  V.) 

348,  4  Am.   Dec.   368;     Williard    v.    Rl 
Mete.  (Mass.)  4'X),  45  Am.  I 

An  aerolite  which  is  imbedded  to  a 
of  3  feet  is  the  property  of  the  ov. 
land  on  which   it  falls,    rather  than   of  the 
person   who  finds  it;    Goddard   v.   Wi 
SG  la.  71,  52  X.  W.  1124,  17  L.  R.  A.  7    3,    11 
Am.  St.  Rep.  481 

In     International     Law.     The    absolute    or 
conditional    acceptance,    by    one    or    several 
states,  of  a  treaty  already  com 
Other  sovereignties.     Merlin,  Repert     A 
$  ion. 

It  may  be  of  two  kinds:    First,  the  f 
entrance   of  a   third   state   into   a 
that  such  state  becomes  a  party  to  it;    and 
this   can   only   be  with    the   consent   of   the 
original  parties.     The  accession    > 
self  a    treaty,   and'  is  frequently   invited  or 
provided  for  in  the  original  treaty,  as  in  tbe 
Declaration  of  Paris  and  the  Convention  of 
Geneva,  1S64,  Art.  9,  and  that  of  1868,  Art. 
15.     To  the  first  Geneva  Convention  the  ac- 
cession of  Great  Britain   was 
IS,  1865.     So  the  Declaration  of  81 
burg,   1S6S,   relative  to   explosive   bullets   is 
said  to  have  "been  acceded  to  by  all  the  civ- 
ilized  states   of   the   world."     Higgina,   The 
Hague  and  Other  Conferences  2! 
state  may  accede  to  a  treaty  between  other 
states  solely  for  the  purpose  of  guar 
in  which  case,  though  a  party,  it.  i- 
by  the  treaty  only  as  a  guarantor.     1  <  I 
heim,  Int.  L.  sec.  E 

ACCESSORY.     Any  thing  which   is  J 
to  another  thing  as  an  ornament,  or  to  ren- 
der it  more  perfect. 

For  example,  the  halter  of  a  horse,  the  frame  of 
a  picture,  the   keys  of  a  house,  and   the   lik . 
belong  to  the   principal  thing.     The  sale  of  the  ma- 
terials of  a  newspaper  establishment  will  carry  with 
it,   as  an   accessory,   the   subscription    1 
land  v.  Stewart.  2  Watts  (Fa.)  Ill,  2G  Am.   D.  i 
but  a  bequest  of  a  house  would  not  carry  the  fur- 
niture In  It,  as   accessory  to   1L     Domat,    Lois  Civ. 
Part.   2,  llv.    4,   tit.    2,   8.    4.   n.   1.  ;i   non 

duett  sed  scquit;.:  Litt        ..   a. 

See    Accession;     Adjunction;     Appubte- 

NAN<   I 

In    Criminal     Law.      He    who    is    not    the 


ACCESSORY 


100 


ACCESSORY 


chief  actor  in  the  perpetration  of  the  offence, 
nor  present  at  its  performance,  but  is  some 
way  concerned  therein,  either  before  or  aft- 
er the  fact  committed. 

An  accessory  before  the  fact  is  one  who, 
being  absent  at  the  time  of  the  crime  com- 
mitted, yet  procures,  counsels,  or  commands 
another  to  commit  it.     1  Hale,  PL  Cr.  615. 

Any  one  wbo  incites  persons  or  commands 
another  to  commit  a  felony  is  an  accessory 
before  fact  and  punishable  as  the  principal 
felon.  An  accessory  is  never  present  at  the 
commitment  of  the  crime;    Odger,  C.  L.  132. 

In  some  states  an  accessory  before  the  fact 
is  treated  as  a  principal,  as  also  in  England 
by  statute;  2  C.  &  K.  8S7;  L.  R.  1  C.  C.  R.  77. 

With  regard  to  those  cases  where  the 
principal  goes  beyond  the  terms  of  the  so- 
licitation, the  approved  test  is,  "Was  the 
event  alleged  to  he  the  crime  to  which  the 
accused  is  charged  to  be  accessory,  a  prob- 
able effect  of  the  act  which  he  counselled?" 
1  F.  &  F.  Cr.  Cas.  242;  Rose.  Cr.  Ev.  181. 
When  the  act  is  committed  through  the  agen- 
cy of  a  person  who  has  no  legal  discretion  or 
will,  as  in  the  case  of  a  child  or  an  insane 
person,  the  incitor.  though  absent  when  the 
crime  was  committed,  will  be  considered,  not 
an  accessory,  for  none  can  be  accessory  to 
the  acts  of  a  madman,  but  a  principal  in  the 
first  degree;  1  Hale,  PL  Cr.  514;  U.  S.  v. 
Gooding,  12  Wheat.  (U.  S.)  469,  6  L.  Ed.  693. 
But  if  the  instrument  is  aware  of  the  con- 
sequences of  his  act,  he  is  a  principal  in  the 
first  degree,  and  the  employer,  if  he  is  ab- 
sent when  the  act  is  committed,  is  an  acces- 
sory before  the  fact ;  1  R.  &  R.  Cr.  Cas.  363 ; 
1  Den.  Cr.  Cas.  37;  1  C.  &  K.  589;  or  if  he 
is  present,  as  a  principal  in  the  second  de- 
gree ;  1  Fost.  Cr.  Cas.  349 ;  unless  the  instru- 
ment concur  in  the  act  merely  for  the  pur- 
pose of  detecting  and  punishing  the  employ- 
er, in  which  case  he  is  considered  as  an  in- 
nocent agent. 

An  accessory  after  the  fact  Is  one  who, 
knowing  a  felony  to  have  been  committed, 
receives,  relieves,  comforts,  or  assists  the 
felon;   4  Bla.  Com.  37. 

In  England  one  who  harbors  a  felon,  know- 
ing him  to  be  a  felon  (unless  it  is  a  wife 
harboring  her  husband).  This  does  not  ap- 
ply to  a  misdemeanant.  In  treason  such  per- 
son is  deemed  a  principal  traitor ;  Odger,  C. 
L.  132. 

No  one  who  is  a  principal  can  be  an  ac- 
cessory ;  but  if  acquitted  as  principal  he  may 
be  indicted  as  an  accessory  after  the  fact ; 
State  v.  Davis,  14  R.  I.  2S3. 

In  certain  crimes,  there  can  be  no  accesso- 
ries; all  who  are  concerned  are  principals, 
whether  they  were  present  or  absent  at  the 
time  of  their  commission.  These  are  treason, 
and  all  offences  below  the  degree  of  felony; 
4  Bla.  Com.  35 ;  2  Den.  Cr.  Cas.  453 ;  Com. 
v.  McAtee,  8  Dana  (Ky.)  28;  Williams  v. 
State,  12  Smedes  &  M.  (Miss.)  5S ;  Com.  v. 
Ray,  3  Gray  (Mass.)  448;    Schmidt  v.  State, 


14  Mo.  137;  Sanders  v.  State,  18  Ark.  198; 
Com.  v.  Burns,  4  J.  J.  Marsh.  (Ky. )  1S2  ;  Stev- 
ens v.  People,  67  111.  587;  Griffith  v.  State, 
90  Ala.  583,  8  South.  812 ;  U.  S.  v.  Boyd,  45 
Fed.  851.  Such  is  the  English  rule;  but  in 
the  United  States  it  appears  not  to  be  deter- 
mined as  regards  the  cases  of  persons  assist- 
ing traitors;  Sergeant,  Const  Law  382;  In 
re  Burr,  4  Cr.  472,  501 ;  U.  S.  v.  Fries,  3  Dall. 
515,  1  L.  Ed.  701.  See  Charge  to  Grand  Jury, 
2  Wall.  Jr.  134,  Fed.  Cas.  No.  18,276 ;  U..  S. 
v.  Hanway,  2  Wall.  Jr.  139,  Fed.  Cas.  No. 
15,299 ;  Carlisle  v.  U.  S.,  16  Wall.  (U.  S.)  147, 
21  L.  Ed.  426;  Hanauer  v.  Doane,  12  Wall. 
(U.  S.)  347,  20  L.  Ed.  439.  That  there  cannot 
be  an  accessory  in  cases  of  treason,  see 
Davis,  Cr.  L.  38.  Contra,  1  Whart.  Cr.  L. 
§  224. 

There  can  be  no  accessory  when  there  is 
no  principal ;  if  a  principal  in  a  transaction 
be  not  liable  under  our  laws,  no  one  can  be 
charged  as  a  mere  accessory  to  him;  U.  S. 
v.  Libby,  1  Woodb.  &  M.  221,  Fed.  Cas.  No. 
15,597;  Armstrong  v.  State,  28  Tex.  App. 
526,  13  S.  W.  864.  But  see  Searles  v.  State, 
6  Ohio  Cir.  Ct.  R.  331.  This  rule  was  chang- 
ed by  the  Stat.  1  Anne,  2,  c.  9,  so  that  if  the 
principal  felon  was  delivered  in  any  way 
after  conviction  and  before  attainder,  as  by 
pardon  or  being  admitted  to  benefit  of  clergy, 
the  accessory  might  be  tried;  and  that  rule 
is  substantially  enacted  by  the  Ga.  Penal 
Code  §  49,  but  the  common  law  is  otherwise 
unchanged  in  this  country;  Smith  v.  State, 
46  Ga.  298. 

Where  two  persons  are  indicted,  one  as 
principal  and  the  other  as  aider  or  abettor, 
the  latter  may  be  convicted  as  principal, 
where  the  evidence  shows -he  was  the  per- 
petrator of  the  deed ;  Benge  v.  Com.,  92  Ky. 
1,  17  S.  W.  146. 

At  common  law,  an  accessory  cannot  be 
tried,  without  his  consent,  before  the  convic- 
tion of  the  principal ;  (unless  they  are  tried 
together;  Fost.  Cr.  Cas.  360;  Com.  v.  Wood- 
ward, Thatch.  Cr.  Cas.  (Mass.)  63;  Baron  v. 
People,  1  Park.  Cr.  Cas.  (N.  Y.)  246 ;  State  v. 
Groff,  5  N.  C.  270;  Whitehead  v.  State,  4 
Humph.  (Tenn.)  278;  at  least  not  without 
some  special  reason,  recognized  by  law,  why 
the  principal  has  not  been  tried ;  Smith  v. 
State,  46  Ga.  298).  This  is  altered  by  stat- 
ute in  most  of  the  states.  This  rule  is  said 
to  have  been  the  outcome  of  strict  medieval 
logic.  The  trial  of  the  accused  being  by 
sacred  or  supernatural  processes,  it  would 
be  a  shame  to  the  law  if  the  principal  were 
acquitted  after  the  accessory  had  been  hang- 
ed.    2  Poll.  &  Maitl.  508. 

But  an  accessory  to  a  felony  committed 
by  several,  some  of  whom  have  been  con- 
victed, may  be  tried  as  accessory  to  a  felony 
committed  by  these  last;  but  if  he  be  in- 
dicted and  tried  as  accessory  to  a  felony 
committed  by  them  all,  and  some  of  them 
have  not  been  proceeded  against,  it  is  error ; 
Stoops  v.  Com.,  7  S.  &  R.  (Pa.)  491,  10  Am. 


ACCESSORY 


101 


ACCESSORY  CONTRACT 


Dec.  482;    Com.  v.  Knapp,  10  Pick.  (Mass.) 
484,   20   Am.    Dec.   534.     If   the   principal    is 
dead,  the  accessory  cannot,   by  the  common 
law,    be   tried   at   all.     Com.    v.    Philli] 
Mass.  423;    State  v.  McDaniel,  41  T< 

If  the  principal  has  been  tried  and  acquit- 
ted, a  person  charged  as  accessory  should  be 
discharged  on  motion,  but  If  the  former  is 
not  found  the  latter  may  by  statute  be  tried 
and  convicted;  United  States  v.  Crane,  4  Mc- 
Lean, 317,  Fed.  Cas.  No.  14,888.  The  trial  of 
an  accessory  may  proceed  where  the  prin- 
cipal enters  a  plea  of  guilty,  and  his  with- 
drawal of  it  during  the  trial  of  the  former 
does  not  affect  the  validity  of  a  conviction. 

One  Indicted  as  an  aider  and  abettor  of 
the  crime  of  murder  may  be  convicted  and 
sentenced  for  that  offence,  notwithstanding 
the  principal  offender  had  been  tried  pre- 
viously, and  convicted  and  sentenced  for 
manslaughter  only;  Goins  v.  State,  46  Ohio 
St.  457,  21  N.  E.  476. 

.  In  offenses  less  than  felony  all  are  prin- 
cipals, and  on  information  charging  one  as 
principal  he  may  be  convicted  of  aiding  and 
abetting;   [1907]  1  K.  B.  40. 

See  Abettor;  Aiding  and  Abetting; 
Pbincipaj  . 

ACCESSORY    ACTIONS.     In    Scotch    Law. 

Those  which  are  in  some  degree  subservient 
to  others.     Bell  Diet. 

ACCESSORY  CONTRACT.  One  made  for 
assuring  the  performance  of  a  prior  contract, 
either  by  the  same  parties  or  by  others;  such 
as  suretyship,  mortgages,  and  pledges. 

It  is  a  general  rule  that  payment  or  release 
of  the  debt  due,  or  the  performance  of  a 
thing  required  to  be  performed  by  the  first 
or  principal  contract,  is  a  full  discharge  of 
such  accessory  obligation;  Fothier,  Ob.  1,  c. 
1,  s.  1,  art.  2,  n.  14 ;  id.  n.  182,  1S6 ;  see  8 
Mass.  551 ;  Waring'  v.  Smyth,  2  Barb.  Ch. 
(X.  Y.)  119,  47  Am.  Dec.  299;  Blodgett  v. 
Wadhams,  Lalor's  Supp.    (N.  Y.)    65;  Ackla 

.la,  0  Pa.  228;  Whittemore  v.  Gil 
N.  If.  4S4;  and  that  an  assignment  of  the 
principal  contract  will  carry  the  accessory 
contract  with  it;  Donley  v.  Hays,  17  S.  &  R. 
(Pa.)  400;  Jackson  v.  Blodget,  5  Cow.  (X. 
Y.)  202 ;  Ord  v.  McKee.  5  Cal.  515 ;  Crow  v. 
Vance,  4  la.  434;  Whittemore  v.  Gibbs,  24 
N.  II.  484. 

If  the  accessory  contract  be  a  contract 
by  which  one  is  to  answer  for  the  debt,  de- 
fault or  miscarriage  of  another,  it  must,  un- 
der the  statute  of  frauds,  be  in  writing,  and 
disclose  the  consideration,  either  explicitly, 
or  by  the  use  of  terms  from  which  it  may 
be  implied;  5  M.  &  W.  128;  5  B.  &  Ad.  1109; 
Bickford  v.  Gibbs,  8  Cush.  (Mass.)  156; 
Campbell  v.  Knapp,  15  Pa.  27;  Gates  v.  Mc- 
Kee, 13  N.  Y.  232,  64  Am.  Dec.  545;  Sp 
v.  Carter,  49  X.  C.  287;  Schoch  v.  McLane, 
62  Mich.  454,  29  X.  W.  7G.  Such  a  contract 
is  not  assignable  so  as  to  enable  the  assignee 
to  sue  thereon  in  his   own  name;    True  v. 


Fuller,  21  Pick.  (Mass.)   1  rfeox  v. 

Hewlt,    5    Wend.    (X.    Y.< 

does 
not  come  within  the  statute  of  frau< 
v.  Mott,  76  Cal.  171,  18  1 

ACCIDENT     (1 
cadere,  to  fall).     An  event  which,  under  the 
circumstances,    is    unusual    and    a 
An  event  the  real  cause  of  which  cannot  he 
traced,  or  is  at  least  not  apparent.     Wa 
St.  L,  &  I'ac.  Ry.  Co.  v.  Locke,  112 
14  X.  B.  391,  2  Am.  St  Rep.  i'.'::. 

The  happening  of  an  event  without  the 
concurrence  of  the  will  of  the  person  by 
whose*. agency  it  was  caused;  or  the  happen- 
ing of  an  event  without  any  hum 
The  burning  of  a  house  in  consequence  of  a 
fire  made  for  the  ordinary  purposes  of  cook- 
ing or  warming  the  house  is  au  accident  of 
the  first  kind;  the  burning  of  the  same  house 
by    lightning   would    be  nt   of   the 

second  kind;  1  Fonbl.  Eq.  374,  37.",.  n. ;  Mor- 
ris v.  Piatt,  32  Conn.  85;  Crutchfield  v.  i:. 
Co.,  76  X.  C.  322;  Hutchcraft's  Ex'r  v.  Ins. 
Co.,  87  Ky.  300,  8  S.  W.  570,  12  Am.  St  Rep. 
An  accident  may  proceed  or  result  from 
negligence;  McCarty  v.  Ry.  Co.,  30  Pa.  247; 
Schneider  v.  Ins.  Co.,  24  Wis.  28,  1  Am.  Rep. 
257;  and  see  11  Q.  B.  347;  but  a  misfortune 
in  business  is  not  an  accident:  Langdon  v. 
Bowen,  46  Vt.  512.  As  to  what  the  term  in- 
cludes see  Insurance,  sub-tit.  Accident  In- 
surance.    See  Inevitable  Accident. 

In    Equity    Practice.     Such   an   unforeseen 
event,    misfortune,   loss,   act,,  or  omission  as 
is  not  the  result  of  any  negligence  or  mis- 
conduct  in   the   party.     Francis,    Ma: 
Story,  Eq.  Jur.  §  78. 

An  occurrence  in  relation  to  a  contract 
which  was  not  anticipated  by  the  parties 
when  the  same  was  entered  Into,  and 
gives  an  undue  advantage  to  one  of  them 
over  the  other  in  a  court  of  law;  Jeremy, 
Eq.   358.     This  definition  is  ol  >,   he- 

cause,  as  accidents  may  arise  in  relation  to 
other  things  besides  contracts,  it  is  inac- 
curate in  confining  accidents  to  cont  r 
besides,  it  does  not  exclude  cases  of  unan- 
ticipated occurrence  resulting  from  th 
ligence  or  misconduct  of  the  party  seeking 
relief.  See  also  1  Spence,  Eq.  Jur.  628.  In 
many  instances  it  closely  resembles  Mistake, 
which  see. 

In  general,  courts  of  equity  will  relieve  a 
party  who  cannot  obtain  justice  at  law  from 
the  COT  &  of  an   accident    which   will 

justify  the  interposition  of  a  i  iuity. 

The  jurisdiction  which  equity  exei 
case  of  accident  is  mainly  of  two  sorts: 
over  bonds  with  penalties  to  prevent  a  for- 
feiture where  the  failure  is  the  result  of 
accident;  2  Freem.  Oh.  128;  1  Spew  . 
Jur.  629;  Rives  v.  Toulmin,  25  Ala.  452;  Gar- 
vin v.   Squires.  9  Al 

Chase  v.  Barrett,  4  Paige,  Ch.    (X.  Y.)    148; 
Prices  Ex'r  v.  Fuqua's  Adin'r,  4  Munf.  (Va.) 


ACCIDENT 


102 


ACCIDENTAL 


68;  Streeper  v.  Williams,  48  Pa.  450;  as 
sickness;  Jones  v.  Woodhull,  1  Root  (Conn.) 
29S;  Doty  v.  Whittlesey,  1  Root  (Conn.) 
olO;  or  where  a  bond  has  been  lost;  Deans 
v.  Dorteh,  40  N.  C.  331;  but  if  the  penalty  be 
liquidated  damages,  there  can  be  no  relief; 
Merwin,  Eq.  §  409.  And,  second,  where  a 
negotiable  or  other  instrument  has  been  lost, 
in  which  case  no  action  lay  at  law,  but 
where  equity  will  allow  the  one  entitled  to 
recover  upon  giving  proper  indemnity ;  4 
Price  170 ;  7  B.  &  C. .  90 ;  Savannah  Nat. 
Bank  v.  1  la  skins,  101  Mass.  370,  3  Am.  Rep. 
373;  P.isph.  Eq.  §  177.  In  some  states  it  has 
been  held  that  a  court  of  law  can  gender 
judgment  for  the  amount,  requiring  the  de- 
fendant to  give  a  bond  of  indemnity;  Bridge- 
ford  v.  Mfg.  Co.,  34  Conn.  540,  91  Am.  Dec. 
744;  Swift  v.  Stevens,  8  Conn.  431;  Almy 
v.  Reed,  10  Cush.  (Mass.)  421.  Relief  against 
a  penal  bond  can  now  be  obtained  in  almost 
all  common-law  courts ;  Merwin,  Eq.  §  411. 

The  ground  of  equitable  interference 
where  a  party  has  been  defeated  in  a  suit  at 
law  to  which  he  might  have  made  a  good 
defence  had  he  discovered  the  facts  in  sea- 
son, may  be  referred  also  to  this  head ; 
Jones  v.  Kilgore,  2  Rich.  Eq.  (S.  C.)  63; 
Pearce  v.  Chastain,  3  Ga.  226,  46  Am.  Dec. 
423;  Brandon  v.  Green,  7  Humphr.  (Tenn.) 
130;  Meek  v.  Howard,  10  Sruedes  &  M. 
(Miss.)  502;  Davis  v.  Tileston,  6  How.  (U. 
S.)  114,  12  L.  Ed.  366;  see  Pemberton  v. 
Kirk,  39  N.  C.  178,  but  in  such  case  there 
must  have  been  no  negligence  on  the  part 
of  the  defendant;  Semple  v.  McGatagan,  10 
Smedes  &  M.  (Miss.)  98;  Brandon  v.  Green, 
7  Humphr.  (Tenn.)  130;  Miller  v.  McGuire, 
Morr.  (la.)  150;  Cosby's  Heirs  v.  Wickliffe, 
7  B.   Monr.    (Ky.)    120. 

Ender  this  head  equity  will  grant  relief 
in  cases  of  the  defective  exercise  of  a  power 
in  favor  of  a  purchaser,  creditor,  wife,  child, 
or  charity,  but  not  otherwise;  Bisph.  Eq.  § 
182.  So  also  in  other  cases,  viz.,  where  a 
testator  cancels  a  will,  supposing  that  a 
later  will  is  duly  executed,  which  it  is  not; 
where  boundaries  have  been  accidentally 
confused;  where  there  has  been  an  acciden- 
tal omission  to  endorse  a  promissory  note, 
etc.;   id.  §  183. 

It  is  exercised  by  equity  where  there  is 
not  a  plain,  adequate,  and  complete  remedy 
at  law;  Tucker  v.  Madden,  44  Me.  206;  but 
not  where  such  a  remedy  exists;  Hudson  v. 
Kline.  9  Gratt.  (Va.)  379;  Grant  v.  Quick, 
5  Sandf.  (N.  Y.)  612;  and  a  complete  excuse 
must  be  made ;  English  v.  Savage,  14  Ala. 
342. 

See  Inevitable  Accident;  Mistake;  For- 
tuitous Event  ;  Negligence  ;  Insubance  ; 
Act  of  God. 

ACCIDENT  INSURANCE.  See  Instjb- 
ance. 

ACCIDENTAL.  Not  according  to  the  usu- 
al   course    of    things;     casual;    fortuitous. 


United  States  Mat.  Ace.  Ass'n  v.  Barry,  131 
U.  S.  100,  9  Sup.  Ct.  755,  33  L.  Ed.  60. 

ACCIDENTAL  DEATH.  See  Death;  In- 
surance. 

ACCOMENDA.  A  contract  which  takes 
place  when  an  individual  intrusts  personal 
property  with  the  master  of  a  vessel,  to  be 
sold  for  their  joint  account, 

In  such  case,  two  contracts  take  place:  first,  the 
contract  called  mandatum,  by  which  the  owner  of 
the  property  gives  the  master  power  to  dispose  of 
it;  and  the  contract  of  partnership,  in  virtue  of 
which  the  profits  are  to  be  divided  between  them. 
One  party  runs  the  risk  of  losing  his  capital,  the 
other  his  labor.  If  the  sale  produces  no  more  than 
first  cost,  the  owner  takes  all  the  proceeds:  it  is 
only  the  profits  which  are  to  be  divided ;  Emerigon, 
Mar.  Loans,  s.  5. 

ACCOMMODATION  PAPER.  Promissory 
notes  or  bills  of  exchange  made,  accepted, 
or  endorsed  without  any  consideration  there- 
for. 

Such  paper,  in  the  hands  of  the  party  to 
whom  it  is  made  or  for  whose  benefit  the 
accommodation  is  given,  is  open  to  the  de- 
fence of  want  of  consideration,  but  when 
taken  by  third  parties  in  the  usual  course 
of  business,  is  governed  by  the  same  rules 
as  other  paper ;  2  Kent  86 ;  1  M.  &  W.  212 
33  Eng.  L.  &  Eq.  282;  Pierson  v.  Boyd,  2 
Duer  (N.  Y.)  33;  Farmers'  &  Mechanics 
Bank  v.  Rathbone,  26  Vt.  19,  58  Am.  Dec 
200;  Yates  v.  Donaldson,  5  Md.  3S9,  61  Am 
Dec.  283;  Mosser  v.  Criswell,  150  Pa.  409 
24  Atl.  018. 

Where  an  accommodation  note  is  purchas 
ed  from  the  payee  at  a  usurious  rate,  it  is 
void  as  against  the  accommodation  maker, 
though  it  was  represented  as  business  paper ; 
Whedon  v.  Hogan,  8  Misc.  Rep.  323,  28  N. 
Y.  Supp.  554. 

An  endorsement  on  accommodation  paper 
may  be  withdrawn  before  it  is  discounted 
unless  rights  have  in  the  meantime,  for  val- 
uable consideration,  attached  to  others ; 
Berkeley  v.  Tinsley,  88  Va.  1001,  14  S.  E. 
842. 

The  Neg.  Instr.  Acts  do  not  change  the 
former  rules  as  to  who  may  become  accom- 
modation parties.     Selover,  Neg.  Instr.   105. 

ACC0MM0DATUM.  The  same  as  commo- 
datum,  q.  v.;  Anders.  Law  Diet,  quoting  Sir 
William  Jones.  The  word  is  not  found  in 
Kent,  or  in  Edw.  Bailments. 

ACCOMPLICE  (Lat.  ad  and  complicare — 
con,  with,  together,  plicare,  to  fold,  to  wrap, 
— to  fold  together) . 

In  Criminal  Law.  One  who  Is  concerned 
In  the  commission  of  a  crime. 

"One  who  is  in  some  way  concerned  in 
the  commission  of  a  crime,  though  not  as  a 
principal."  Cross  v.  People,  47  111.  152,  95 
Am.  Dec.  474. 

"One  of  many  equally  concerned  in  a  fel- 
ony, the  term  being  generally  applied  to 
those  who  are  admitted  to  give  evidence 
against  their  fellow   criminals  for  the  fur- 


ACCOMPLICE 


103 


ACCOMPLICE 


therance  of  justice,  which  might  otherwise 
be  eluded."  Cross  v.  People,  47  III  152,  'J.. 
Am.  Dec.  474. 

"One  who  being  present  aids  by  acts  or 
encourages  by  words  the  principal  offender 
In  tbe  commission  of  the  offense,"  Is 
neous  as  :i  definition;  such  person  is  a  prin- 
cipal; Smith  v.  State,  13  Tex.  App.  607.  He 
must  in  some  manner  assist  or  participate 
In  the  criminal  act,  and  by  that  connection 
he  becomes  equally  involved  in  guilt  with 
the  other  party;  People  v.  Smith.  28  Hum 
(N.  T.)  626;  Cross  v.  People.  47  111.  152,  95 
Am.  Dee.  474.  The  purchaser  of  li  iuor  sold 
in  violation  of  the  law  is  not  an  accomplice; 
State  v.  Teahan,  50  Conn.  92;  People  v. 
Smith,  28  Hun  (N.  Y.)  626;  nor  is  a  minor 
child  who  is  coerced  into  assisting  in  an 
unlawful  act;  People  v.  Miller,  66  Cal.  ^OS, 
6  Pac.  99;  Beal  v.  State.  72  Ga.  200;  nor  one 
who  does  not  immediately  disclose  the  fact 
that  a  homicide  has  been  committed;  Bird 
T.  U.  S.,  187  U.  S.  118,  23  Sup.  Ct  42,  47 
L.  Ed.  100;  nor  one  who  joins  in  a  game 
with  others  who  are  betting,  but  does  not 
bet  himself;  Bass  v.  State,  37  Ala.  409. 

The  term  In  its  fulness  Includes  In  Its  meaning  all 
persons  who  have  been  concerned  in  the  <■■ 
sion  of  a  crime,  all  participes  criminis,  v 
they  are  considered  in  strict,  legal  propriety  as  prin- 
cipals in  the  first  or  second  degree,  or  merely  as 
accessaries  before  or  after  the  fact;  Fost.  Or.  Cas. 
341 ;  1  Russ.  Cr.  21 ;  4  Bla.  Com.  331 ;  1  Phil.  Ev. 
28;    Merlin,  Repert.   Complice. 

It  has  been  questioned,  whether  one  who  was  an 
accomplice  to  a  suicide  can  be  punished  as  such.  A 
case  occurred  in  Prussia  where  a  soldier,  at  the  re- 
quest of  his  comrade,  had  cut  the  latter  in  pieces; 
for  this  he  was  tried  capitally.  In  the  year  1817,  a 
young  woman  named  Leruth  received  a  recompense 
for  aiding  a  man  to  kill  himself.  He  put  the  point 
of  a  bistoury  on  his  naked  breast,  and  used  the 
hand  of  the  young  woman  to  plunge  it  with  greater 
force  into  his  bosom;  hearing  some  noise,  he  or- 
dered her  away.  The  man,  receiving  effectual  aid, 
was  soon  cured  of  the  wound  which  had  been  in- 
flicted, and  she  was  tried  and  convicted  of  having 
inflicted  the  wound.  Lepage,  Science  du  Droit,  ch. 
2,  art.  3,  §  5.  The  case  of  Saul,  the  King  of  Israel, 
and  his  armor-bearer  (1  Sam.  xxxi.  4),  and  of  David 
and  the  Amakkite  (2  Sam.  1.  2),  will  doubtless  oc- 
cur  to  the  reader. 

It  has  been  held,  that,  if  one  counsels  another  to 
commit  suicide,  he  is  principal  in  the  murder  ;  for 
it  is  a  presumption  of  law  that  advice  has  the  Influ- 
ence and  effect  intended  by  the  adviser,  unless  It  is 
shown  to  have  been  otherwise,  as,  for  example,  that 
it  was  received  with  scoff  or  manifestly  rejected 
and  ridiculed  at  the  time;  Commonwealth  v.' Bow- 
en,  13  Mass.  350,  7  Am.   Dec.  154. 


the   accomplice   should   be   confirmed,   : 

one  or   more  of  the  pri»  'ify   a 

conviction  of  those  prisoners  with 

whom  there  is  no  confirmation;  1   I 

:;1    Bow.   St   Tr.   967;    7   Cox,   Cr.   i 

Com.  v.  Savory,  10  Cush.  (M 

lins  v.   I  98  111.  584,  38  Am.   i 

Flanagin    v.  25   Ark.  le   v. 

Jenness,  5  Midi.  305;  Carroll  v.  Com..  - 

11.7.    See  1   Post  >.v  F.  388;  Com.  v.  : 

127   M  '-'A  Am.   Bep. 

Tin 'Ugh  the  evidence  <>f  an  accomplice  un- 
corroborated   is    sufficient,    if    the    jur; 
fully   convinced   of    the    truth    of   his 
:    Linsday    v.    People,    63    N.    Y. 
i  v.  People,  98  111. 
105;    it   is   the   settled   course   of   pi 
England  not  to  convict  a  prisoner,  exo 
under  very  special  circumstances,  upon  the 
uncorroborated  testimony  of  an  accon 

2  K.  P..  680;  C.  of  Cr.  App.  In  the 
federal  courts  the  testimony  of  an  accomplice 
need  not  necessarily  be  corroborated  ;  A 
v.  U.  S.,  158  Fed.  606,  85  C.  C.  A.  42 
should  be  received  with  caution;  U.  S.  v. 
Ybanez,  53  Fed.  536;  State  v.  Minor.  117  Mo. 
2  s.  W.  1085;  state  v.  Patterson,  52 
Kan.  335,  34  Tac.  784. 

This    general    statement    is    substantially 
the  result  of  tl  :i  both  countries  as 

to  the  treatment  of  the  testimony  of  an  ac- 
complice.    As  to  the  corrobor  aired, 
the  cases  may  be  divided  into  throe  c 
requiring  corroboration — 1.  Of   that   part   of 
the   testimony   which   connects   the  pi 
with  the  crime.    2.  Of  a  material  part  of  the 
testimony.     3.  Of   any   portion  of   the 
mony.     The  cases  may  be  found  in  an  able 
note  in  71  Am.  Dec.  071. 

An  accomplice,  upon  making  a  full  di 
sure,  has  a  just  claim  hut  not  a  legal 
to  recommendation  for  a  pardon,  whi< 
not  however  be  pleaded  in  bar  to  the 
ment;  U.  S.  v.  Ford.  99  O.  S.  594,  25  L,  Ed. 
399;    Ex  parte  Wells.  18   How.    (U.   S 
15  L.  Ed.  421  ;  but  he  may  use  it  to  put  off 
the  trial,  in  order  to  give  him  time  to  apply 
for  a  pardon;  id.;  Cowp.  331;  l  Leach  115. 
An  accomplice  is  not  incompetent  when  in- 
dicted  separately;   State  v.   Umble,   115   Mo. 
452,  22  S.  W.  378. 

See  Kino's  Evidence;  Trover;  Accessory; 
Abortion. 


It  is  now  finally  settled  that  it  Is  not  a 
rule  of  law  but  of  practice  only  that  a  jury 
should  not  convict  on  the  unsupported  tes- 
timony of  an  accomplice.  Therefore,  if  a 
jury  choose  to  act  on  such  evidence  only, 
the  conviction  cannot  be  quashed  as  had  in 
law.  The  better  practice  is  for  the  Judge 
to  advise  the  jury  to  acquit,  unless  the  tes- 
timony of  the  accomplice  is  corroborated,  not 
only  as  to  the  circumstances  of  the  offence, 
but  also  as  to  the  participation  of  the  accus- 
ed in  the  transaction;  and  when  several  par- 
ties are  charged,  that  it  is  not  sufficient  that 


ACCORD       AND      SATISFACTION, 
aenl   between  two  parties  t 
accept  something  in  satisfaction  of  a   right 
of  action   which  one  has  against   the 
which    when   performed   is   a    bar  to   all  ac- 
tions upon   this  account;    generally   used    in 
the    pi  ord   and    satisfaction." 

Bla.  Com.  15;  Bacon,  Abr.  Accord;  Franklin 
Fire  Ins.  Co.  v.  Hamill,  5  Bid.  170.  It  may 
be  pleaded  to  all  acti  r  real  actions; 

Bacon,  Abr.  Accord  (B)  ;  Pulliam  v.  Taylor, 
50  Miss.  257. 

Though    here    correctly    defined    as    now 


ACCORD  AND  SATISFACTION 


104 


ACCORD  AND  SATISFACTION 


recognized  as  "an  agreement,"  it  should  be 
borne  in  mind  that  the  acceptance  of  satis- 
faction for  damages  caused  by  a  tort  was 
recognized  as  a  bar  to  a  subsequent  action 
long  before  the  recognition  of  the  validity 
of  contracts.  This  is  shown  by  Professor 
Ames  in  9  Harv.  L.  Rev.  285,  by  authorities 
as  far  back  as  the  time  of  Edward  I.  The 
recognition  of  an  accord  as  a  valid  bilateral 
contract  was  a  tardy  one  as  shown  by  the 
early  cases  collected  in  17  Harv.  L.  Rev. 
459,  though  it  may  now  be  considered  as  a 
contract  lor  the  breach  of  which  an  action 
will  lie;  Very  v.  Levy,  13  How.  (U.  S.)  345, 
14  L.  Ed.  173;  Savage  v.  Everman,  70  Pa. 
310,  10  Am.  Rep.  GSO ;  Schweider  v.  Lang,  29 
Minn.  254,  13  N.  W.  33,  43  Am.  Rep.  202; 
White  v.  Gray,  OS  Me.  579;  Hunt  v.  Brown, 
140  Mass.  253,  15  N.  E.  587;  Chicora  Ferti- 
liser Co.  v.  Dunan,  91  Md.  144,  46  Atl.  347, 
50  L.  R.  A.  401;  15  Q.  B.  677;  10  C.  B.  (N. 
S.)   259. 

It  must  be  legal.  An  agreement  to  drop 
a  criminal  prosecution,  as  a  satisfaction  for 
an  assault  and  imprisonment,  is  void;  5 
East  294;  Smith  v.  Grable,  14  la.  429;  Walan 
v.  Kerby,  99  Mass.  1. 

It  must  be  advantageous  to  the  creditor, 
and  he  must  receive  an  actual  benefit  there- 
from which  he  would  not  otherwise  have 
had;  Keeler  v.  Neal,  2  Watts  (Pa.)  424; 
Davis  v.  Noaks,  3  J.  J.  Marsh.  (Ky.)  497; 
Hutton  v.  Stoddart,  83  Ind.  539.  Restoring 
to  the  plaintiff  his  chattels  or  his  land,  of 
which  the  defendant  has  wrongfully  dispos- 
sessed him,  will  not  be  any  consideration  to 
support  a  promise  by  the  plaintiff  not  to  sue 
him  for  those  injuries;  Bacon.  Abra.  Accord, 
A;  Jones  v.  Bullitt,  2  Litt.  (Ky.)  49;  Blinn 
v.  Chester,  5  Day  (Conn.)  300;  Williams  v. 
Stanton,  1  Root  (Conn.)  426;  Le  Page  v. 
McCrea,  1  Wend.  (N.  Y.)  164,  19  Am.  Dec. 
469.  The  payment  of  a  part  of  the  whole 
debt  due  is  not  a  good  satisfaction,  even  if 
accepted;  1  Stra.  426;  2  Greenl.  Ev.  §  28; 
10  M.  &  W.  367;  12  Price,  Ex.  183;  Hardey 
v.  Coe,  5  Gill  (Md.)  189;  Warren  v.  Skinner, 
20  Conn.  559;  Hayes  v.  Davidson.  70  N.  C. 
573;  Foster  v.  Collins,  6  Heisk.  (Tenn.)  1; 
Smith  v.  Bartholomew,  1  Mete.  (Mass.)  276, 
35  Am.  Dec.  365;  Hinckley  v.  Arey,  27  Me. 
362;  White  v.  Jordon,  27  Me.  370;  Eve  v. 
Mosoly,  2  Strobh.  (S.  C.)  203;  Williams  v. 
Lang/ord,  15  B.  Monr.  (Ky.)  566;  Line  v. 
Nelson,  38  N.  J.  L.  358 ;  Gussow  v.  Beineson, 
76  N.  J.  L.  209,  68  Atl.  907 ;  Schlcssinger  v. 
Schlessinger,  39  Colo.  44,  S8  Pac.  970,  8  L. 
R.  A.  (N.  S.)  863;  Hayes  v.  Davidson.  70 
N.  C.  573;  Curran  v.  Rummell,  118  Mass. 
482;  Tucker  v.  Murray,  2  Pa.  List  R.  497; 
otherwise,  however,  if  the  amount  of  the 
claim  is  disputed;  Cro.  Eliz.  429;  3  M.  &  W. 
651 ;  McDaniels  v.  Lapham,  21  Vt.  223 ; 
Stockton  v.  Frey,  4  Gill  (Md.)  406,  45  Am. 
Dec.  138;  Palmerton  v.  Huxford,  4  Denio 
(N.   Y.)    166;   Howard   y.   Norton,   65   Barb. 


(N.  Y.)  161;  Bull  v.  Bull,  43  Conn.  455; 
Tyler  Cotton  Press  Co.  v.  Chevalier,  56  Ga. 
194;  McCall  v.  Nave,  Wl  Miss.  494;  Childs  v. 
Lus.  Co.,  56  Vt.  609;  Brooks  v.  Moore,  67 
Barb.  (N.  Y.)  393;  Stimpson  v.  Poole,  141 
Mass.  502,  6  N.  E.  705;  Perkins  v.  Headley, 
49  Mo.  App.  556;  or  contingent;  Bryant  v. 
Proctor,  14  B.  Monr.  (Ky.)  451;  even  if  a 
favorable  result  of  a  suit  could  not  have 
been  predicted;  Zoebisch  v.  Von  Minden,  120 
N.  Y.  400,  24  N.  E.  795;  or  there  is  a  release 
under  seal;  Redmond  &  Co.  v.  Ry.,  129  Ga. 
133,  58  S.  E.  874;  Gordon  v.  Moore,  44  Ark. 
349,  51  Am.  Rep.  606;  or  a  receipt  in  full 
upon  payment  of  an  undisputed  part  of  the 
claim  after  a  refusal  to  pay  what  is  disput- 
ed ;  Chicago,  M.  &  St.  P.  R.  Co.  v.  Clark,  178 
U.  S.  353,  20  Sup.  Ct.  924,  44  L.  Ed.  1099 
(citing  a  long  line  of  cases)  ;  Tanner  v.  Mer- 
rill, 108  Mich.  58,  05  N.  YV.  664,  31  L.  R.  A. 
171,  62  Am.  St  Rep.  687 ;  Ostrander  v.  Scott, 
161  111.  339,  43  N.  E.  10S9 ;  or  the  debtor  is 
insolvent;  Shelton  v.  Jackson,  20  Tex.  Civ. 
App.  443,  49  S.  W.  415;  or  even  thought  to 
be  insolvent  but  found  not  to  be;  Rice  v. 
Mortgage  Co.,  70  Minn.  77,  72  N.  W.  826 
(see  criticism  of  the  last  two  cases  in  12 
Harv.  L.  Rev.  515,  521)  ;  or  in  contempla- 
tion of  bankruptcy;  Melroy  v.  Kemmerer, 
218  Pa.  381,  67  Atl.  699,  11  L.  R.  A  (N.  S.) 
101S,  120  Am.  St.  Rep.  888 ;  or  there  are  mu- 
tual demands ;  6  El.  &  B.  691 ;  and  if  the 
negotiable  note  of  the  debtor,  15  M.  &  W. 
23,  or  of  a  third  person,  Brooks  v.  White,  2 
Mete.  (Mass.)  2S3,  37  Am.  Dec.  95;  Bank  of 
Montpelier  v.  Dixon,  4  Vt.  587,  24  Am.  Dec. 
640  (where  the  cases  are  collected)  ;  Boyd 
v.  Hitchcock,  20  Johns.  (N.  J.)  76,  11  Am. 
Dec.  247 ;  Kellogg  v.  Richards,  14  Wend.  ( N. 
Y.)    116;    Sanders  v.   Bank,    13  Ala.  353;   4 

B.  &  C.  506;  Brassell  v.  Williams,  51  Ala. 
349;  for  part,  be  given  and  received,  it  is  ' 
sufficient;  or  if  a  part  be  given  at  a  differ- 
ent place,  Jones  v.  Perkins,  29  Miss.  139, 
64  Am.  Dec.  136,  or  an  earlier  time,  it  will 
be  sufficient;  Goodnow  v.  Smith,  18  Pick. 
(Mass.)  414,  29  Am.  Dec.  C00;  and,  in  gen- 
eral, payment  of  part  suffices  if  any  addi- 
tional benefit  be  received;  Bowker  v.  Har- 
ris, 30  Vt.  424;  Rose  v.  Hall,  26  Conn.  392, 
68  Am.  Dec.  402;  Keeler  v.  Salisbury,  27 
Barb:   (N.  Y.)   485;  Mathis  v.  Bryson,  49  N. 

C.  508;  Cool  v.  Stone,  4  la.  219;   Potter  v. 
Douglass,  44  Conn.  541. 

"The  result  of  the  modern  cases  is  that 
the  rule  only  applies  when  the  larger  sum  is 
liquidated,  and  where  there  is  no  considera- 
tion whatever  for  the  surrender  of  part  of 
it;  and  while  the  general  rule  must  be  re- 
garded as  well  settled,  it  is  considered  so 
far  with  disfavor  as  to  be  confined  strictly 
to  cases  within  it;"  Chicago,  M.  &  St.  P.  R. 
Co.  v.  Clark,  178  U.  S.  .".:.:;,  20  Sup.  Ct.  924, 
44  L.  Ed.  1099,  reversing  92  Fed.  9GS,  35  C. 
C.  A.  120. 

Acceptance  by  several  creditors,  by  way  of 


ACCORD  AND  SATISFACTION 


105 


ACCORD  AND  SA  :TON 


composition  of  sums  respectively  less  than 
their  demands,  held  to  bar  actions  for  the 
residue;  Murray  v.  Snow,  37  la.  410;  and 
it  makes  no  difference  that  one  creditor  re- 
fuses to  sigu,  where  the  agreement  is  not 
upon  condition  that,  all  should  sign:  Craw- 
ford v.  Krueger,  201  Pa.  348,  50  Atl.  931. 
The  receipt  of  specific  property,  or  the  per- 
formance of  serviic,,,  If  agreed  to,  is  suffi- 
cient, whatever  its  value;  Reed  v.  Bartlett, 
19  Tick.  (Mass.)  273;  Blinn  v.  Chester,  5 
Day  (Conn.)  3G0 ;  Brassell  v.  Williams,  51 
Ala.  349;  provided  the  value  be  not  agreed 
upon;  Howard  v.  Norton,  G5  Barb.  (N.  Y. ) 
101  ;  but  both  delivery  and  acceptance  must 
be  proved  ;  Mare  v.  Miller,  1  Wash.  C.  C.  328, 
Fed.  Cas.  No.  J).: '.02 ;  Sinard  v.  Patterson,  3 
Blackf.  (Ind.)  354;  State  Bank  v.  Littlejohn, 
18  N.  C.  565;   Stone  v.  Miller,  1G  Pa.  450; 

4  Eng.  L.  &  Eq.  185.  See  full  notes  in  20 
L.  It.  A.  785;  11  L.  R.  A.  (N.  S.)  1018;  14 
id.  954. 

It  must  be  certain.  An  agreement  that 
tfye  defendant  shall  relinquish  the  possession 
of  a  house  in  satisfaction,  etc.,  is  not  valid, 
unless  it  is  agreed  at  what  time  it  shall  be 
relinquished;  Yelv.  125.  See  4  Mod.  SS; 
Bird  v.  Caritat,  2  Johns.  (N.  Y.)  342,  3  Am. 
Dec.  433;  Frentress  v.  Markle,  2  G.  Greene 
(la.)  553;  United  States  v.  Clarke,  1 
Hempst.  315,  Fed.  Cas.  No.  14,812;  Costello 
v.  Cady,  102  Mass.  140. 

It  must  be  complete.  That  is,  everything 
must  be  done  which  the  party  undertakes 
to  do ;  Comyns,  Dig.  Accord,  B,  4 ;  Cro.  Eliz. 
40  ;  Eng.  L.  &  Eq.  296  ;  Frentress  v.  Markle, 
2  G.  Greene  (la.)  553 ;    Clark  v.   Dinsmore, 

5  N.  H.  136;  Watkinson  v.  Inglesby,  5  Johns. 
(N.  Y.)  386;  Bigelow  v.  Baldwin,  1  Gray 
(Mass.)  245;  Frost  v.  Johnson,  8  Ohio  393; 
Woodruff  v.  Dobbins,  7  Blackf.  (Ind.)  582; 
Bryant  v.  Proctor,  14  B.  Monr.  (Ky.)  459; 
Ballard  v.  Noaks,  2  Ark.  45 ;  Cushing  v.  Wy- 
nian,  44  Me.  121;  Reed  v.  Martin,  29  Pa. 
179;  Flack  v.  Garland,  8  Md.  1S8;  Overton 
v.  Conner,  50  Tex.  113 :  Young  v.  Jones,  G4 
Me.  563,  18  Am.  Rep.  279 ;  but  this  perform- 
ance may  be  merely  the  substitution  of  a 
new  undertaking  for  the  old  by  way  of  no- 
vation if  the  parties  so  intended,  whereby  the 

il  claim  is  extinguished;  2  B.  &  Ad. 
32S;  Nassoiy  v.  Tomlinson,  14S  N.  Y.  326, 
42  N.  E.  715,  51  Am.  St.  Rep.  695:  Gerhart 
Realty  Co.  v.  Assurance  Co.,  94  Mo.  App. 
356,  68  S.  W.  S6:  Brunswick  &  Western  R, 
Co.  v.  Clem,  SO  Ga.  534,  7  S.  E.  84 ;  Yazoo  & 
Mississippi  Yal.  R.  Co.  v.  Fulton,  71  Miss. 
3S5,  14  South.  271;  Goodrich  v.  Stanley,  24 
Conn.  613;  Creager  v.  Link,  7  Md.  259;  10 
Q.  B.  1039. 

The  doctrine  that  payment  by  or  with  the 
money  of  a  third  person  is  not  a  discharge 
of  the  debtor  was  established  in  Cro.  Eliz. 
541,  which  was  followed  in  the  early  Ameri- 
can cases,  but  its  doctrine  was  much  limited 
in  9  C.  B.  173,  and  10  Exch.  845.  where  it 
was   held   that   payment   would   be  good   if 


made  either  with  previous  authority  or  sub- 
sequent ratification  of  the  del  I  that 
the  latter  could  be  made  at  the  trial.     This 
view  has  prevailed  in  England  and  it  i 
that  a  plea  of  payment  is  sufficient  r. 
tion;  L.  R.  0  Exch.  124. 

In  this  country  the  weight  of  authority  is 
in   favor  of  recognizing  such   pa- 
defense,    special    recognition    being    R© 
to   facts  showing  that  the  payment  was  on 
behalf  of  the  debtor  ami    ratified   by  him; 
Snyder   v.    Pharo,   25   Fed.    398;     Hartley   v. 
Sandford,  68  X.  J.  L.  632,  50  AM.  454,  55  L 
R.  .\.  206.     In  New  York  the  early  cas< 
was  followed  in  Bleakley  v.  Wbi1 
(N.  Y.)  654;   Daniels  v.  Hallenbeck,  V.)  ' 
(N.  Y.)  40S;    Atlantic  Dock  Co.  v.  Ma 
N.  Y.  64;    but  in  Wellington  v.  Kelly. 
Y.   513,   the  question    was  not   decided,    but 
I  with  a  reference  to  the  limitation  in 
England  which  had   been  followed  in   Clow 
v.  Borst,  0  Johns.  (X.  Y.)  37.  which  liar]  "not 
been  authoritatively  overruled,  and  we  need 
not  'now   determine   whether   it    should   any 
longer   be  regarded   as   authority."     An 
City  of  Albany  v.  McNamara,  117  N.  Y.  168, 
22  N.  E.  931,  6  L.  R.  A.  212;    Windnmller  v. 
Rubber  Co.,    123   App.    Div.    424,    107    X.    Y. 
Supp.  1095.     In  Kentucky  the 
pra  from  Stark's  Adm'r  v.  Thompson's  Kx'rs. 
3  T.  B.  Monr.  (Ky.)  302.  stands  without  any 
subsequent  ruling  on  the  point. 

The  cases  are  collected  in  2.')  L.  R.  A.  120. 
and  17  Harv.  L.  Rev.  472. 

It  is  a  question  for  the  jury  whether  the 
agreement  or  the  performance  wae 
in  satisfaction;  Bahrenburg  v.  Fruil  Co.,  128 
Mo.  App.  526,  107  S.  W.  440;    It;  Q.  B 
and  in  some  cases  it  is  sufficient  if  pel 
ance  be  tendered  and  refused  :    2  P..  &  Ad. 
32S.      If,   however,   it   was   the    performance 
of  the  accord  which  was  to  be  the  satisfac- 
tion, the  creditor  may  sue  on  either  the  old 
cause  of  action  or  the  accord ;    Babcock  v. 
Hawkins,  23  Vt.  501;    but  if  he  sues  on  the 
original  claim  without  giving  time  for  per- 
formance, the  debtor  must  not  go  into  equi- 
ty, but  may  have  his  action  on  the  accord: 
Hunt  v.  Brown,  146  M a  ss.  253,  15  X    I 

An  accord   with  tender  of   satisfaction   is 
not  sufficient,  but  it  must  be  executed;    3 
Bingh.    N.    C.    715;     Brooklyn    Bank    v.    De 
Grauw,  23  Wend.  (N.  Y.)   342,  35   Am. 
509;    Simmons  v.  Clark,  56  D  ishing 

v.  Wyman,  44  Me.  121;  Hosier  v.  Hursh.  151 
Pa.  415,  25  Atl.  52;  Phinizy  v.  Bush,  129 
Ga.  479,  59  S.  E.  259;  Clarke  v.  Hawkh 
II.  T.  219;  hut  where  there  is  a  sufficient  con- 
sideration to  support  the  agreement,  it  may 
be  that  a  tender,  though  unaccepted,  would 
bar  an  action;  Story,  Contr.  §  1357;  Coit  v. 
Houston,  3  Johns.  Cas.  (X.  Y.)  213.  Satis- 
faction without  accord  is  not  sufficient :  0 
M.  &  W.  596;  nor  is  accord  without  satisfac- 
tion; 3  B.  &  C.  257. 

The  burden  of  proving  accord  and  satis- 
faction is  on  him  who  alleges  it;    but  it  may 


ACCORD  AND  SATISFACTION 


IOC 


ACCORD  AND  SATISFACTION 


be  established  by  conduct  and  circumsl 
such  as  the  silence  of  the  debtor  after  notice 
that  tbe  creditor  will  not  accept  a  tender  in 
full  payment;    Bahrenburg  v.  Fruit  Co.,  12S 
Mo.  App.  520,  107  S.  W.  440. 

A  case  of  very  frequent  occurrence  is 
where  the  amount  is  disputed  or  unliquidat- 
ed and  the  debtor  sends  a  check  for  part  of 
the  amount  as  in  full  if  accepted,  which  the 
creditor  retains  and  protests  tbat  it  is  re- 
ceived only  in  part  payment  The  weight  of 
American  authority  now  holds  that  there  is 
an  accord  and  satisfaction;  Fuller  v.  Kemp, 
l.'.s  X.  Y.  231,  33  N.  E.  1034,  20  L.  R.  A.  7S5 ; 
Nassoiy  v.  Tomlinson,  148  N.  Y.  326,  42  N. 
E.  715,  51  Am.  St.  Rep.  09."):  Tollman  &  Bros. 
Coal  &  Sprinkling  Co.  v.  City  of  St.  Louis, 
145  Mo.  651,  47  S.  W.  563;  McCormick  v. 
City  of  St.  Louis,  166  Mo.  315,  65  S.  W.  1038; 
Bingham  v.  Browning,  197  111.  122,  64  N.  E. 
317;  Anderson  v.  Granite  Co.,  92  Me.  429,  43 
Atl.  21,  09  Am.  St.  Rep.  522;  Connecticut 
River  Lumber  Co.  v.  Brown,  68  Yt.  239.  35 
Atl.  56;  Potter  v.  Douglass,  44  Conn.  541; 
Talbott  v.  English,  156  Ind.  299,  59  N.  E. 
857;  Hamilton  &  Co.  v.  Stewart,  108  Ga. 
472,  34  S.  E.  123;  Neely  v.  Thompson,  68 
Kan.  193.  75  Lac.  117;  Cooper  v.  R.  Co.,  82 
Miss.  634,  35  South.  162  (where  a  receipt  in 
full  was  signed  and  a  verbal  protest  made 
to  the  creditor's  agent  that  no  rights  were 
waived);  Hull  v.  Johnson  &  Co.,  22  R.  I.  66, 
46  Atl.  1S2  (where  the  check  was  specifically 
marked  good  only  if  accepted  in  full,  and 
those  words  were  stricken  out  before  cash- 
ing it).  Some  cases  explicitly  require  the 
statement  that  the  payment  is  in  full  or  cir- 
cumstances amounting  to  it  in  effect;  Fre- 
mont Foundry  &  Mach.  Co.  v.  Norton,  3  Neb. 
(Unof .)  804.  92  N.  W.  1058 ;  Whitaker  v.  Eil- 
enberg,  70  App.  Div.  489,  75  N.  Y.  Supp.  106 ; 
Van  Dyke  v.  Wilder,  66  Vt.  579,  29  Atl.  1016. 

One  New  York  case  requires  separate  no- 
tice. The  indebtedness  was  for  legal  serv- 
ices and  a  check  was  sent  for  less  than  the 
amount  named ;  plaintiff  wrote  that  under 
no  circumstances  would  he  accept  it  in  full 
but  would  apply  it  on  account ;  having  wait- 
ed two  days  for  a  reply  and  received  none,  he 
collected  the  check ;  held  no  accord  and  sat- 
isfaction ;  Mack  v.  Miller,  87  App.  Div.  359, 
84  N.  Y.  Supp.  440.  See  17  narv.  L.  Rev. 
272.  469. 

In  other  states  it  is  held  to  be  no  satisfac- 
tion, but  only,  as  tendered,  a  payment  on 
account;  Krauser  v.  McCurdy,  174  Pa.  174, 
34  Atl.  518 ;  Louisville,  N.  A.  &  C.  Ry.  Co.  v. 
.  Helm,  109  Ky.  388,  59  S.  W.  323;  Demeules 
v.  Tea  Co..  103  Minn.  150,  114  N.  W.  733,  14 
L.  R.  A.  (N.  S.)  954,  123  Am.  St.  Rep.  315; 
and  with  these  courts  is  the  English  Court 
of  Appeal;  22  Q.  B.  D.  610,  where  it  was 
held  that  the  keeping  of  the  check  sent  in 
satisfaction  of  a  claim  for  a  larger  amount 
was  not  in  law  conclusive,  but  that  whether 
there  was  an  accord  and  satisfaction  was  a 
question  for  the  jury. 


It  must  be  by  the  debtor  or  his  agent; 
Booth  v.  Smith.  3  Wend.  (N.  Y.)  66;  Ellis  v. 
Bibb,  2  Stew.  (Ala.)  84;  and  if  made  by  a 
stranger,  will  not  avail  the  debtor  in  an  ac- 
tion at  law;  Stra.  592;  Stark's  Adm'r  v. 
Thompson's  Ex'rs,  3  T.  B.  Monr.  (Ky.)  302; 
Clow  v.  Borst,  6  Johns.  (N.  Y.)  37.  Hi;;  rem- 
edy in  such  a  case  is  in  equity;  3  Taunt. 
117;  5  East  294.  It  is  often  difiicult  to  dis- 
tinguish whether  an  agreement  for  compro- 
mise is  an  accord  without  satisfaction  or  a 
novation.  It  is  the  tendency  of  the  courts 
to  construe  a  doubtful  case  as  the  latter, 
which  extinguishes  the  old  contract;  see  16 
Y.  L.  J.  133.  It  was  held  that  an  agreement 
to  pay  less  than  the  amount  contemplated  in 
an  unmatured  and  contingent  obligation,  for 
which  the  plaintiff  had  no  cause  of  action, 
was  a  novation  and  that  no  recovery  could  be 
had  on  the  original  contract;  'Sandman  v. 
Finn,  185  N.  Y.  508,  78  N.  E.  175,  12  L.  R. 
A.  (N.  S.)  1134.  The  new  undertaking  may 
be  executory ;  Morehouse  v.  Bank,  98  N.  Y. 
503;  but  if  it  appears  directly  or  inferen- 
tially  that  it  is  accepted  in  satisfaction,  the 
original  cause  of  action  is  extinguished; 
Kromer  v.  Heim,  75  N.  Y.  574,  31  Am.  Rep. 
491;  as  also  if  the  new  contract  is  incon- 
sistent with  the  old;  Renard  v.  Sampson,  12 
N.  Y.  561;  Stow  v.  Russell,  36  111.  18.  The 
original  claim  need  not  have  been  valid,  but 
must  have  been  bona  fide;  Flegal  v.  Hoover. 
156  Pa.  276,  27  Atl.  162;  Wehrum  v.  Kuhn, 
61  N.  Y.  623.  The  cases  are  collected  in 
Clark,  Cont.  125.  When  the  consideration  is 
executory,  the  original  obligation  continues 
until  the  new  agreement  is  executed ;  and  if 
that  fails,  it  is  revived ;  Ramborger's  Adm'r 
v.  Ingraham,  38  Pa.  147.  It  is  not  the  new 
agreement,  but  its  execution,  which  discharg- 
es the  old  one;  Rogers  v.  Rogers,  139  Mass. 
440,  1  N.  E.  122;  Thomson  v.  Poor,  147  N. 
Y.  402,  42  N.  E.  13. 

Where  an  accord  and  satisfaction  is  the 
substitution  of  a  new  contract  for  an  old 
]  one,  and  the  promise  is  accepted  without  per- 
formance, it  is  a  novation ;  Harrison  v.  Hen- 
derson, 67  Kan.  194,  72  Pac.  875,  62  L.  R.  A. 
760,  100  Am.  St.  Rep.  393.  In  case  of  a  dis- 
puted claim,  an  agreement  to  pay  part  to  a 
third  person  in  satisfaction  of  the  whole  is 
a  good  consideration;  Mitchell  v.  Knight,  7 
Ohio  Cir.  Ct.  R.  204. 

Certain  English  rules  are  thus  stated: 
Where  there  has  been  no  performance  and  a 
right  of  action  has  accrued  to  one  party,  the 
other  party  may  offer  a  different  perform- 
ance and  other  amends,  which  if  accepted 
and  executed  will  discharge  his  liability. 

Where  performance  is  to  be  the  payment  of 
a  sum  of  money,  payment  of  a  smaller  sum 
is  not  accord  and  satisfaction.  There  must 
be  some  other  consideration.  But  if  paid  at 
an  earlier  date,  or  in  a  different  place  than 
that  agreed,  it  is  a  discharge.  A  negotiable 
instrument  for  a  less  amount  may  be  a  sat- 


ACCORD  AND  SATISFACTION 


107 


ACCOUNT 


isfaction  if  accepted  for  the  purpose;  Odger, 
C.  L.  757. 

Accord  with  satisfaction,  when  completed, 
has  two  effects:  it  is  a  payment  of  the  deht; 
and  it  is  a  species  of  sale  of  the  thing  given 
by  the  debtor  to  the  creditor,  in  satisfaction; 
hut  it  differs  from  it  in  this,  that  it  is  not 
valid  until  the  delivery  of  the  article,  and 
there  is  no  warranty  of  the  tiling  thus  sold, 
except  perhaps  the  title;  for  in  regard  to 
this  it  cannot  lie  doubted  that  if  the  debtor 
gives  on  an  accord  and  satisfaction  the  goods 
of  another,  there  would  be  no  satisfs 
But  the  intention  of  the*  parties  is  of  the 
utmost   coii  .     Bowker   v.    Harris.    30 

Vt.  421;  Sutherlin  v.  Bloomer,  50  Or.  398, 
93  Pac.  135;  as  the  debtor  will  be  required 
only  to  execute  the  new  contract  to  that 
point  whence  it  was  to  operate  a  satisfac- 
tion of  the  pre-existing  liability. 

An  accord  and  satisfaction  may  be  rescind- 
ed by  subsequent  agreement;  Heavenrich  v. 
Steele,  57  Minn.  221,  58  N.  W.  982;  Alex- 
ander v.  R.  Co.,  54  Mo.  App.  66;  it  may  be 
avoided  on  account  of  fraud ;  Butler  v.  R. 
Co.,  88  Ga.  594,  15  S.  E.  668;  Ball  v.  Mc- 
Geoch,  81  Wis.  160,  51  N.  W.  443. 

In  America  accord  and  satisfaction  may 
be  given  in  evidence  under  the  general  issue 
in  assumpsit,  but  it  must  be  pleaded  specially 
in  debt,  covenant  and  trespass;  2  Greenl.  Ev. 
(15th  ed.)  §  29.  In  England  it  must  be  plead- 
ed specially  in  all  cases ;  Rose.  N.  P.  569. 
See  Payment;  Acceptance;  Agreement;  No- 
vation. 

ACCOUCHEMENT.  The  act  of  giving  birth 
to  a  child.  It  is  frequently  important  to 
prove  the  fdiation  of  an  individual ;  this  may 
be  done  in  several  ways.  The  fact  of  the 
accouchement  may  be  proved  by  the  direct 
testimony  of  one  who  was  present,  as  a  phy- 
sician, a  midwife,  or  other  person;  1  Bou- 
vier,  Inst.  n.  314.     See  Birth. 

ACCOUNT.  A  detailed  statement  of  the 
mutual  demands  in  the  nature  of  debit  and 
credit  between  parties,  arising  out  of  con- 
tracts or  some  fiduciary  relation;  Whit  well 
v.  Willard,  1  Mete  (Mass.)  216;  Blakeley  v. 
Biscoe,  1  Ilempst.  114,  Fed.  Cas.  No.  1S,239; 
Portsmouth  v.  Donaldson,  32  Pa.  202,  72  Am. 
Dec.  782;  Turgeon  v.  Cote,  8S  Me.  108,  33 
Atl.  787. 

A  statement  of  the  receipts  and  payments 
of  an  executor,  administrator,  or  other  trus- 
tee of  the  estate  confided  to  him. 

An  open  account  is  one  in  which  some 
term  of  the  contract  is  not  settled  by  the 
parties,  whether  the  account  consists  of  one 
item  or  many;  Sheppard  v.  Wilkins,  1  Ala. 
02:  Goodwin  v.  Hale.  6  Ala.  438;  Dunn  v. 
Fleming's  Estate,  73  Wis.  545,    11    X.  W.  TUT. 

A  form  of  action  called  also  account  ren- 
der, in  which  such  a  statement,  and  the 
recovery  of  the  balance  which  thereby  ap- 
pears to  be  due,  is  sought  by  the  party  bring- 
ing it 


In   Practice.     In  Equity.     Ji  a  con- 

current with  courts  of  law  is  taken  over  mat- 
ters of  account;    Posl    v.   Kimberly.   :•  . 
(N.  Y.)  ITU:    Bruce  v.  Burdet,  1  J.  J.  h 

Nelson    v.    Alii 
360;   McLaren  v.  Steapp,  l  Ga 
grounds:    mutual   accounts;    18   B 
dealings  so  complicated  that  they  cannot  be 
adjusted  in  a  court  of  law;    1  Sen.  &  1 
2  II.   L.   Cas.  28;    Hickman  v. 
(Va.)  •;-,   Whltwell  v.  Willard,  I 
21*;:   Cullum  v.  Bloodgood,  15  Ala. ::! ;  Print- 
up  v.  Mitchell.  17  Cm.  558,  63  Am.  De 
Kaston  v.  Paxton,  46  Or.  308,  80 
11  1  Am.  St.  Rep.  871  ;    McMullen  I.: 
v.   Strother,    136   Fed.  295,  69   C.   « '.  A 
Chase  v.  Phosphate  Co.,  32  App.  Div.    I 
X.  Y.  Supp.  220;   the  existence  of  a  fidi 
relation  between  the  parties;    1  Sim.  <'h.  n. 
s.  573;    Massachusetts  General   Hospital   v. 
Assur.  Co.,  4  Cray  (Mass.i  L'127 ;    Kilbourn  v. 
Sunderland,  130  D.  8.  505,  9  Sup.  Ct.  594,  32 
L.  Ed.  1005.    A  bill  for  an  account  must  show 
by  specific  allegations  one-  of  these  grounds 
lity;    Walker  v.  Brooks.  125  Mass.  241; 
and  it  must  appear  in  the  stating  part  of  the 
bill;    a  prayer  for  an  account  is  not   suffi- 
cient;   Bnshnell  v.  Avery,  121  Mass.  lis. 

In  addition  to  these  peculiar  grounds  of 
jurisdiction,  equity  will  grant  a  discovery  in 
cases  of  account  on  the  general  principles 
regulating  di  coveries;  Knotts  v.  Tarver,  8 
Ala.  743;  Wilson  v.  Mallett,  1  Sandf.  (X.  Y.i 
112;  Waller  v.  Cheever.  3.1  X.  IT.  339;  Sher- 
idan v.  Ferry  Co..  214  Pa.  117.  63  Atl.  418; 
Sanborn  v.  Kittredge,  20  Yt.  632,  50  Am.  Dec. 
58;  and  will  afterwards  proceed  to  grant 
I  full  relief  in  many  cases;  6  Yes.  136;  Rath- 
bone  v.  Warren,  10  Johns.  iX".  Y.)  r,s7;  Fowle 
v.  Lawrason,  5  ret.  (U.  SO  495,  S  L.  Ed.  204. 
But  "to  say  that  whenever  there  is  a  right 
of  discovery  there  must  be  an  account  al- 
lowed is  rather  reversing  the  thing.  Discov- 
ery, on  the  contrary,  is  incident  to  the  order 
to  account.  The  two  things  are  sepal 
2  II.  L.  Cas.  28. 

The  remedy  of  part  owners  of  a  ship  for 
adjustments  of  accounts  between  themselves 
is  in  equity;  Milium  v.  Guyther,  8  Oill  (Md.) 
92,  50  Am.  Dec.  681  :  State  v.  Watts.  7  La. 
440.  26  Am.  Dec.  507 ;  and  so  it  is  when 
business  is  carried  on  upon  joint  account, 
whether  as  partners  or  not;  Clarke  v.  Pierce, 
52  Mich.  157,  17  X.  W.  7S0;  Coward  V. 
Clanton,  122  Cal.  451,  55  Tac.  1-17. 

Equitable  jurisdiction  over  accounts  ap- 
plies to  the  appropriation  of  payme* 
Story,  Hq.Jur.  (8thBd.)  §459;  agency;  Hen- 
derson v.  McClure,  2  McCord,  Eq.  I 8.  0.) 
469;  Including  factors,  bailiffs,  consignees, 
receivers,  and  stewards,  where  there  are 
mutual  or  complicated  accounts;  9  Beav. 
■  H.  L.  Cas.  28  I  where,  however,  it  was 
held  that  the  relation  of  banker  and  cus- 
tomer is  not  such  fiduciary  relation  as  to 
give  jurisdiction:  id.  35);  Rembert  v. 
Brown,    17   Ala.   6G7;    trustees'   accounts;   1 


ACCOUNT 


108 


ACCOUNT 


Story,  Eq.  Jur.  §  4G5 ;  2  M.  &  K.  GG4 ;  Scott 
v.  Gamble,  9  N.  J.  Eq.  218;  administrators 
and  executors;  Adams'  Heirs  v.  Adams,  22 
Vt.  50;  Stong  v.  Wilkson,  14  Mo.  116;  Flem- 
ing v.  McKesson.  56  N.  C.  316;  Colbert  v. 
Daniel,  32  Ala.  314;  (luardians,  etc.;  Moore 
v.  Hood,  9  Rich.  Eq.  (S.  C.">  311,  70  Am.  Dec. 
210;  Johnson  v.  Miller,  33  Miss.  553;  tenants 
in  cowman,  joint  tenants  of  real  estate  or 
chattels;  4  Ves.  752;  1  Yes.  &  B.  114;  part- 
ners; Perkins  v.  Perkins'  Kx'r,  3  Gratt.  (Va.) 
364;  Carter  v.  Holbrook,  3  Cush.  (Mass.) 
Washburn  v.  Washburn,  23  Vt.  576; 
Hough  v.  Chaffin,  4  Sneed  (Tenn.)  238; 
Long  v.  Majestre,  1  Johns.  Ch.  (N.  Y.)  305; 
directors  of  companies,  and  similar  officers; 
1  Y.  &  C.  326;  apportionment  of  apprentice 
fees;  2  Bro.  C.  C.  78;  or  rents;  2  P.  Wms. 
176,  501;  see  1  Story,  Eq.  Jur.  §  4S0;  con- 
tribution to  relieve  real  estate;  3  Co.  12;  2 
Bos.  &  P.  270;  Cheesebrough  v.  Millard,  1 
Johns.  Ch.  (N.  Y.)  409,  7  Am.  Dec.  494; 
Stevens  v.  Cooper,  1  Johns.  Ch.  (N.  Y.)  425, 
7  Am.  Dec.  499;  Taylor  v.  Porter,  7  Mass. 
355;  general  average;  4  Kay  &  J.  367;  Stur- 
gess  v.  Cary,  2  Curt.  59,  Fed.  Cas.  No.  13,- 
572;  between  sureties;  1  Story,  Eq.  Jur.  § 
492;  liens;  Skeel  v.  Spraker,  8  Paige  Ch. 
(N.  Y.)  182;  Patty  v.  Pease,  8  Paige  Ch. 
(N.  Y.)  277,  35  Am.  Dec.  683;  rents  and 
profits  between  landlord  and  tenant;  1  Sch. 
&  L.  305 ;  Livingston  v.  Livingston,  4  Johns. 
Ch.  (N.  Y.)  287,  8  Am.  Dec.  562;  in  case  of 
torts;  Bacon,  Abr.  Accompt,  B ;  a  levy ;  1 
Ves.  Sen.  250;  1  Eq.  Cas.  Abr.  285;  and  in 
other  cases ;  McClandish  v.  Edloe,  3  Gratt. 
(Va.)  330;  ivaste;  1  P.  Wms.  407;  6  Ves. 
88;  tithes  and  moduses;  Com.  Dig.  Chancery 
(3  C),  Distress   (M.  13). 

But  equity  will  not  entertain  a  suit  for 
a *  naked  account  of  profits  and  damages 
against  an  infringer  of  a  patent ;  Waterman 
v.  Mackenzie,  138  U.  S.  252.  11  Sup.  Ct.  334, 
34  L.  Ed.  923;  Root  v.  Railway  Co.,  105  U. 
S.  189,  26  L.  Ed.  975;  nor  will  an  account 
for  infringing  a  trademark  be  ordered  where 
the  infringer  acted  in  good  faith,  or  the 
profits  were  small ;  Saxlehner  v.  Siegel-Coop- 
er  Co.,  179  U.  S.  42,  21  Sup.  Ct.  16,  45  L.  Ed. 
77.  Neither  will  an  account  be  ordered 
merely  to  establish  by  testimony  the  allega- 
tions of  the  bill ;  Tilden  v.  Maslin,  5  W.  Va. 
377;  nor  when  the  accounts  are  all  on  one 
side  and  no  discovery  is  needed ;  Graham  v. 
Cummings,  208  Pa.  516,  57  Atl.  943. 

On  a  bill  for  an  account  the  right  of  the 
defendant  to  affirmative  relief  is  as  broad 
as  that  of  complainant;  Wilcoxon  v.  Wilcox- 
on,  111  111.  App.  90;  even  if  the  answer  con- 
tains no  demand  for  it;  Consolidated  Fruit 
Jar  Co.  v.  Wisner,  110  App.  Div.  99,  97  N. 
Y.  Supp.  52,  affirmed  188  IN.  Y.  624,  81  N.  E. 
1162. 

A  decree  for  an  accounting  under  a  decree 
is  not  necessarily  delayed  or  prevented  by 
the  fact  that  it  may  affect  the  interests  of 


persons  not  then  In  being,  as  after-born  chil- 
dren, and  the  latter  may  be  bound  by  it; 
as  in  the  case  of  trustees  of  land  subject  to 
a  life  tenancy;  2  Vera.  526;  Harrison  v. 
Wallton's  Ex'r,  95  Va.  721,  30  S.  E.  372,  41 
L.  R.  A.  703,  64  Am.  St.  Rep.  830;  decrees 
of  probate  courts  construing  a  will ;  Ladd 
v.  Weiskopf,  62  Minn.  29,  64  N.  W.  99,  09 
L.  R.  A.  785 ;  or  distributing  a  decedent's  es- 
tate; Rhodes  v.  Caswell,  41  App.  Div.  232, 
58  N.  Y.  Supp.  470. 

Equity  follows  the  analogy  of  the  law  in 
refusing  to  interfere  with  stated  accounts; 
2  Sch.  &  L.  629 ;  3  Bro.  C.  C.  639,  n. ;  Lewis 
v.  Baird,  3  McLean  83,  Fed.  Cas.  No.  8,316; 
Robinson  v.  Hook,  4  Mas.  143,  Fed.  Cas.  No. 
11,956;  Piatt  v.  Vattier,  9  Pet.  (U.  S.)  405, 
9  L.  Ed.  173.     See  Account  Stated. 

Equity  does  not  deal  with  accounts  upon 
the  principle  of  mercantile  bookkeeping.  It 
requires  the  items  of  charge  and  discharge; 
Langd.  Eq.  PI.  §  75,  n.  Producing  books  of 
account  is  not  stating  an  account 

The  approved  practice  is  to  enter  an  inter- 
locutory decree  for  an  account,  but  a  failure 
to  do  so  is  not  error;  Hollahan  v.  Sowers, 
111  111.  App.  263;  but  see  Silliman  v.  Smith, 
72  App.  Diy.  621,  76  N.  Y.  Supp.  65 ;  but  the 
court  has  power  to  pass  on  the  account  with- 
out the  intervention  of  a  master;  Glover  v. 
Jones,  95  Me.  303,  49  Atl.  1104;  Davis  v. 
Hofer,  38  Or.  150,  63  Pac.  56;  Darby  v.  Gil- 
ligan,  43  W.  Va.  755,  28  S.  E.  737.  A  refer- 
ence will  not  be  ordered  to  afford  opportuni- 
ty for  evidence  to  support  the  bill ;  Beale  v. 
Hall,  97  Va.  383,  34  S.  E.  53;  Ammons  v. 
Oil  Co.,  47  W.  Va.  610,  35  S.  E.  1004. 

At  Law.  The  action  lay  against  bailiffs, 
receivers  and  guardians,  in  socage  only,  at 
the  common  law,  and,  by  a  subsequent  ex- 
tension of  the  law,  between  merchants ;  11 
Co.  89;  Sargent  v.  Parsons,  12  Mass.  149. 

Privity  of  contract  was  required,  and  it 
did  not  lie  by  or  against  executors  and  ad- 
ministrators ;  1  Wms.  Saund.  216,  n. ;  until 
statutes  were  passed  for  that  purpose,  the 
last  being  that  of  3  &  4  Anne,  c.  16 ;  1  Story, 
Eq.  Jur.  §  445. 

In  several  states,  the  action  has  received 
a  liberal  extension ;  Curtis  v.  Curtis,  13  Vt, 
517 ;  Dennison  v.  Goehring,  7  Pa.  175,  47  Am. 
Dec.  505;  Barnum  v.  Landon,  25  Conn.  137; 
Knowles  v.  Harris,  5  R.  I.  402,  73  Am.  Dec. 
77. 

In  general  it  lies  "in  all  cases  where  a 
man  has  received  money  as  the  agent  of  an- 
other, and  where  relief  may  be  had  in  chan- 
cery"; Bredin  v.  Kingland,  4  Watts  (Pa.) 
421.  It  is  said  to  be  the  proper  remedy  for 
one  partner  against  another;  Irvine  v.  Han- 
lin,  10  S.  &  R.  (Pa.)  220;  Beach  v.  Hotch- 
kiss,  2  Conn.  425;  Wiswell  v.  Wilkins,  4  Vt 
137;  Kelly  v.  Kelly,  3  Barb.  (N.  Y.)  419; 
Young  v.  Pearson,  1  Cal.  448;  for  money 
used  by  one  partner  after  the  dissolution  of 
the    firm;     Fowle    v.     Kirkland,    18    Pick. 


ACCOUNT 


109 


ACCOUNT 


(Mass)  299;  though  equity  seems  to  be 
properly  resorted  to  where  a  separate  tribu- 
nal exists;  Calloway  v.  Tate,  1  Hen.  &  M. 
(Va.)  9;  Long  v.  Majestre,  1  Johns.  Ch.  (N. 
Y.)  305.  The  action  lies  for  salary  of  an  of- 
ficer of  a  corporation;  Talbotton  R.  Co.  v. 
Gibson,  106  Ga.  229,  32  S.  B.  151;  timber 
taken  from  land;  Bernstein  v.  Smith,  10 
Kan.  GO;  club  dues;  Elm  City  Club  v.  Howes, 
82  Me.  211,  42  At).  392;  for  materials  fur- 
nished and  superintendence  of  work  under 
an  agreement  existing  for  so  long  as  both 
parties  should  see  fit;  Quin  v.  Distilling  Co., 
171  Mass.  283,  50  N.  E.  637;  commissions  to 
a  real  estate  agent  on  a  sale;  Reynolds-Mc- 
Ginness  Co.  v.  Green,  78  Vt.  28,  61  Atl.  556 ; 
work  and  labor  and  money  lent ;  Miller  v. 
Armstrong,  123  la.  80,  98  N.  W.  5G1 ;  Horn- 
ing v.  Poyer,  18  Ohio  Cir.  Ct.  R.  732;  Hart- 
sell  v.  Masterson,  132  Ala.  275,  31  South. 
616 ;  use  and  occupation  of  land ;  Ketcham 
v.  Barbour,  102  Ind.  576,  20  N.  E.  127;  the 
price  of  land  sold  and  conveyed;  Curran  v. 
Curran,  40  Ind.  473;  money  received  by  an 
attorney  for  his  client;  Bredin  v.  Kingland, 
4  Watts  (Pa.)   421. 

In  other  states,  reference  may  be  made  to 
an  auditor  by  order  of  the  court,  in  the  com- 
mon forms  of  actions  founded  on  contract 
or  tort,  where  there  are  complicated  ac- 
counts or  counter-demands ;  Pierce  v.  Thomp- 
son, 6  Pick.  (Mass.)  193;  King  v.  Lacey,  S 
Conn.  499;  Brewster  v.  Edgerly,  13  N.  H. 
275;  Farley  v.  Ward,  1  Tex.  646;  and  see 
Cozzens  v.  Hodges,  1  R.  I.  491.  See  Auditor. 
In  the  action  of  account,  an  interlocutory 
judgment  of  quod  computet  is  first  obtained; 
McPherson  v.  McPherson,  33  N.  C.  391,  53 
Am.  Dec.  416;  Lee  v.  Abrams,  12  111.  Ill,  on 
which  no  damages  are  awarded  except  rati- 
one  interplacitationis;  Cro.  Eliz.  83;  Gratz 
v.  Phillips,  5  Binn.   (Pa.)  564. 

The  account  is  then  referred  to  an  auditor, 
who  now  generally  has  authority  to  exam- 
ine parties;  Iloyt  v.  French,  24  N.  II.  .198 
(though  such  was  not  the  case  formerly)  ; 
before  whom  issue  of  law  and  fact  may  be 
taken  in  regard  to  each  item,  which  he  must 
report  to  the  court;  2  Ves.  388;  Thompson 
v.  Arms,  5  Vt.  546;  King  v.  Hutchins,  26  N. 
H.  139;  Crousillat  v.  McCall,  5  Binn.  (Pa.) 
433;  on  their  decision  the  auditors  make  up 
the  account,  report  it  and  are  discharged; 
id.  Upon  the  facts  reported  by  the  auditor 
the  court  decides  the  law  of  the  case;  Mat- 
thews v.  Townr,  39  Vt  433.  Only  the  con- 
troverted items  need  be  proved  in  an  action 
on  a  verified  account ;  Shuford  v.  Chinski 
(Tex.)  26  S.  W.  141. 

A  final  judgment  quod  recuperet  is  entered 
for  the  amount  found  by  him  to  be  due ;  and 
the  auditor's  account  will  not  be  set  aside 
except  upon  a  very  manifest  case  of  error; 
Appeal  of  Stehman,  5  Pa.  413 ;  Tourne  v. 
Riviere,  1  La.  Ann.  380.     See  Auditor. 

In  case  of  mutual  accounts  the  statute  of 


limitations  commences  to  run  from  the  date 

of  the  last  item  on  either  side;  2  \\ i,  Lim. 

714 ;  where  the  last  item  of  a  mutual  run- 
ning account  is  within  six  years  from  the 
commencement  of  a  suit,  the  statute 
not  apply;  McFarland  v.  O'Neil,  155  Pa 
25  Atl.  756;  Chadwlek  v.  Chadwick,  115  Mo. 
581,  22  S.  W.  479 ;  but  in  Vermont  the  debt 
runs  from  the  date  of  the  last  credit,  and 
nut  from  the  last  debit;  George  v.  Mach.  Co., 
05  Vt.  287,  20  Atl.  TS2. 

If  the  defendant  is  found  in  surplusage, 
that  is,  is  creditor  of  the  plaintiff  on  balanc- 
ing f  lie  accounts,  he  cannot  in  this  action 
recover  judgment  for  the  balance  so  due. 
He  may  bring  an  action  of  debt,  or,  by  some 
authorities,  a  sci.  fa.,  against  the  plaintiff, 
whereon  he  may  have  judgment  and  execu- 
tion against  the  plaintiff.  See  Palm.  512; 
1  Leon.  219;  3  Kebl.  302;  1  Rolle,  Abr.  599, 
pi.  11 ;  Brooke,  Abr.  Accord,  62 ;  1  Rolle  87. 

As  the  defendant  could  wage  his  law ;  2 
Wms.  Saund.  65  a;  Cro.  Eliz.  479;  and  as 
the  discovery,  which  is  the  main  object 
sought;  5  Taunt.  431;  can  be  more  readily 
obtained  and  questions  in  dispute  more  read- 
ily settled  in  equity,  resort  is  generally  bad 
to  that  jurisdiction  in  those  states  wbere  a 
separate  tribunal  exists,  or  under  statutes 
to  the  courts  of  law;  Gay  v.  Rogers'  Estate, 
18  Vt.  345;  Brewster  v.  Edgerly,  13  N.  II. 
275;  King  v.  Lacey,  8  Conn.  499;  Whitwell 
v.  Willard.  1  Mete.  (Mass.)  216. 

The  fact  that  one  possesses  an  open  ac- 
count in  favor  of  another  is  not  presumptive 
evidence  of  the  holder's  ownership;  Gregg 
v.  Mallett,  111  N.  C.  74,  15  S.  E.  936.  In  a 
statement  of  account  it  is  not  necessary  to 
say  "E.  &  O.  E." ;  that  is  implied ;  6  El.  & 
Bl.  69. 

ACCOUNT  BOOK.  A  book  kept  by  a 
merchant,  trader,  mechanic,  or  other  person, 
in  which  are  entered  from  time  to  time  the 
transactions  of  his  trade  or  business.  Such 
books,  when  regularly  kept,  may  be  admitted 
in  evidence;  Greenl.  Ev.  §§  115-118;  Bick- 
nell  v.  Mellett,  160  Mass.  328,  35  N.  E.  1130; 
Kohler  v.  Lindenmeyr,  129  N.  Y.-49S,  29  N. 
E.  957. 

See  Original  Entries,  Book  of. 

ACCOUNT  CURRENT.  An  open  or  run- 
ning account  between  two  parties. 

ACCOUNT  RENDER.     See  Account. 

ACCOUNT  STATED.  An  agreed  balance 
of  accounts.  An  account  which  has  been  ex- 
amined and  accepted  by  the  parties.  2  Atk. 
251. 

An  account  cannot  become  an  account 
stated  with  reference  to  a  debt  payable  on 
a  contingency;  Tuggle  v.  Minor,  76  Cal  '■"■'>. 
18  Pac.  131.  Although  an  item  of  an  ac- 
count may  be  disputed,  it  may  become  an 
account  stated  as  to  the  items  admittedly 
correct;  Mulford  v.  Cn?sar,  53  Mo.  App.  263. 

In    Equity.     Acceptance    may    be   inferred 


ACCOUNT  STATED 


110 


ACCOUNT  STATED 


from  circumstances,  as  where  an  account  Is 
rendered  to  a  merchant  and  no  objection  is 
made,  after  sufficient  time ;  1  Sim.  &  S.  333 ; 
Murry  v.  Toland,  3  Johns.  Ch.  (N.  Y.)  5G0; 
Freeland  v.  Heron,  7  Cra.  147,  3  L.  Ed.  297 ; 
Pratt  v.  Weyman,  1  McCord  Ch.  (S.  C.)  156; 
Wood  v.  Ganlt.  2  Md.  Ch.  Dec.  433;  Dows  v. 
Durfee,  10  Barb.  (N.  C.)  213.  Such  an  ac- 
count is  deemed  conclusive  between  the  par- 
ties;  2  Bro.  C.  C.  62,  310;  Desha  v.  Smith, 
20  Ala.  747;  Consequa  v.  Fanning,  3  Johns. 
Ch.  (N.  Y.)  5S7;  Stiles  v.  Brown,  1  Gill. 
(Md.)  350;  Farmer  v.  Barnes,  56  N.  C.  109; 
to  the  extent  agreed  upon ;  Troup  v.  Haight, 
1  Hopk.  Ch.  (N.  Y.)  239;  unless  some  fraud, 
mistake,  or  plain  error  is  shown;  Barrow  v. 
Rhinelander,  1  Johns.  Ch.  (N.  Y.)  550;  Pratt 
v.  Weyman,  1  McCord  Ch.  (S.  C.)  156;  and 
in  such  case,  generally,  the  account  will  not 
be  opened,  but  liberty  to  surcharge  or  falsi- 
fy will  be  given ;  9  Ves.  265 ;  1  Sch.  &  L.  192 ; 
Hutchins  v.  Hope,  7  Gill  (Md.)  119.  A  con- 
sideration and  legal  liability  for  each  item, 
aside  from  the  stated  account,  is  not  essen- 
tial to  sustain  an  action  for  the  balance; 
Patillo  v.  Commission  Co.,  131  Fed.  6S0,  65 
C.  C.  A.  508. 

At  Law.  An  account  stated  is  conclusive 
as  to  the  liability  of  the  parties,  with  refer- 
ence to  the  transactions  included  in  it ;  Mur- 
ray v.  Toland,  3  Johns.  Ch.  (N.  Y.)  569;  ex- 
cept in  cases  of  fraud  or  manifest  error;  1 
Esp.  159;  Goodwin  v.  Insurance  Co.,  24  Conn. 
591;  Martin  v.  Beckwith,  4  Wis.  219;  White 
v.  Walker,  5  Fla.  478.  See  Ogden  v.  Astor, 
4  Sandf.  (N.  Y.)  311;  Neff  v.  Wooding,  83 
Va.  432,  2  S.  E.  731. 

Acceptance  by  the  party  to  be  charged 
must  be  shown  ;  Bussey  v.  Gant's  Adm'r,  10 
Humphr.  (Tenn.)  238;  Lee  v.  Abrams,  12 
111.  111.  The  acknowledgment  that  the  sum 
is  due  is  sufficient ;  2  Term  4S0 ;  though  there 
be  but  a  single  item  in  the  account ;  13  East 
249;  5  M.  &  S.  65. 

The  acceptance  need  not  be  in  express 
terms;  Powell  v.  R.  R.,  65  Mo.  658;  Volken- 
ing  v.  De  Graaf,  81  N.  Y.  268.  Acceptance 
may  be  inferred  from  retaining  the  account 
a  sufficient  time  without  making  objection ; 
Freeland  v.  'Heron,  7  Cra.  (U.  S.)  147,  3 
L.  Ed.  297;  Jones  v.  Dunn,  3  W.  &  S.  (Pa.) 
109;  Dows  v.  Durfee,  10  Barb.  (N.  Y.)  213; 
Ogden  v.  Astor,  4  Sandf.  (N.  Y.)  311;  Patil- 
lo v.  Commission  Co.,  131  Fed.  680,  65  C.  C. 
A.  508 :  and  from  other  circumstances ;  Ber- 
ry v.  Pierson,  1  Gill   (Md.)  234. 

If  the  parties  had  already  come  to  a  dis- 
agreement when  the  account  is  rendered,  as- 
sent cannot  be  inferred  from  silence;  Ed- 
wards v.  Hoeffinghoff,  38  Fed.  635. 

A  definite  ascertained  sum  must  be  stated 
to  be  due;  Andrews  v.  Allen,  9  S.  &  R.  (Pa.) 
241. 

It  must  be  made  by  a  competent  person, 
excluding  infants  and  those  who  are  of  un- 
sound mind;  1  Term  40. 


Husband  and  wife  may  join  and  state  an 
account  with  a  third  person;  2  Term  483; 
16  Eng.  L.  &  Eq.  290. 

An  agent  may  bind  his  principal;  Murray 
v.  Toland,  3  Johns.  Ch.  (N.  Y.)  569;  but  he 
must  show  his  authority ;  Thallhimer  v. 
Brinckerhoff,  4  Wend.  (N.  Y.)  394,  21  Am. 
Dec.  155;  Harvey  v.  Ry.  Co.,  13  Hun  (N.  Y.) 
392.  Partners  may  state  accounts;  and  an 
action  lies  for  the  party  entitled  to  the  bal- 
ance; Ozeas  v.  Johnson,  4  Dall.  (Pa.)  434, 
1  L.  Ed.  897;  Lamalere  v.  Caze,  1  Wash. 
C.  C.  435,  Fed.  Cas.  No.  8,003;  Kidder  v. 
Rixford,  16  Vt.  169,  42  Am.  Dec.  504. 

The  acceptance  of  the  account  is  an  ac- 
knowledgment of  a  debt  due  for  the  balance, 
and  will  support  assumpsit.  It  is  not,  there- 
fore, necessary  to  prove  the  items,  but  only 
to  prove  an  existing  debt  or  demand,  and 
the  stating  of  the  account ;  Ware  v.  Dudley, 
16  Ala.  742;  Auzerais  v.  Naglee,  74  Cal.  60, 
15  Pac.  371. 

Facts  known  to  a  party  when  he  settles 
an  account  stated  cannot  be  used  later  to 
impeach  it;  Marmon  v.  Waller,  53  Mo.  App. 
610;  and  it  should  not  be  set  aside  except 
for  clear  showing  of  fraud  or  mistake ; 
Greenhow  v.  Edler,  51  Fed.  117;  Marmon  v. 
Waller,  53  Mo.  App.  610. 

On  an  account  stated  and  a  balance  due, 
a  promise  is  implied  to  pay  this  balance  on 
demand ;  a  subsequent  promise  differing 
therefrom  is  nudum  pactum.  Odger,  C.  L. 
683. 

ACCOUNTANT.  One  who  is  versed  in 
accounts.  A  person  or  officer  appointed  to 
keep  the  accounts  of  a  public  company. 

He  who  renders  to  another  or  to  a  court 
a  just  and  detailed  statement  of  the  prop- 
erty which  he  holds  as  trustee,  executor, 
administrator,  or  guardian.  See  16  Viner, 
Abr.  155. 

ACCOUNTANT  GENERAL.  An  officer  of 
the  English  Court  of  Chancery,  by  whom  the 
moneys  paid  into  court  are  received,  depos- 
ited in  bank,  and  disbursed.  The  office  ap- 
pears to  have  been  established  by  an  order 
of  May  26,  1725,  and  12  Geo.  I.  c.  32,  before 
which  time  the  effects  of  the  suitors  were 
locked  up  in  the  vaults  of  the  Bank  of  Eng- 
land, under  the  care  of  the  masters  and  two 
of  the  six  clerks ;  1  Smith,  Ch.  Pr.  22. 

ACCOUNTANTS,  CHARTERED.  Persons 
skilled  in  the  keeping  and  examination  of 
accounts,  who  are  employed  for  the  purpose 
of  examining  and  certifying  to  the  correct- 
ness of  accounts  of  corporations  and  others. 
The  business  is  usually  carried  on  by  corpo- 
rations.    See  Auditob. 

ACC0UPLE.    To   unite;     to    marry. 

ACCREDIT.     In      International      Law.     To 

acknowledge;  send   (an  envoy)   with  creden- 
tials. 

Used  of  the  act  by  which  a  diplomatic  agent  is 
acknowledged    by    the  government   to    which    he   Is 


ACCREDIT 


111 


ACCRETION 


sent.  This  at  once  makes  his  public  character 
known  and  becomes  his  protection.  It  Is  used  also 
of  the  act  by  which  his  sovereign  commissions  him. 
This  latter  use  is  now  the  accepted  one. 

ACCRESCERE  (Lat).  To  grow  to;  to  be 
united  with  ;    to  increase. 

The  term  is  used  in  speaking  of  Islands  which  are 
formed  in  rivers  by  deposit;  Calvinus,  Lex.;  3 
Kent  428. 


It  is  used  in  a  related  sense  in  the  com- 
mon-law phrase  jus  accrescendi,  the  right  of 
survivorship ;   1  Washb.  R.  P.  426. 

In  Pleading.  To  commence;  to  arise;  to 
accrue.  Quod  actio  non  accrevit  infra  sex 
annos,  that  the  action  did  not  accrue  within 
six  years ;    3  Chit.  PL  914. 

ACCRETION  (Lat.  accrescere,  to  grow  to). 
The  increase  of  real  estate  by  the  addition 
of  portions  of  soil,  by  gradual  deposition 
through  the  operation  of  natural  causes,  to 
that  already  in  possession  of  the  owner.  3 
Washb.  R.  P.    (5th  ed.)   50. 

The  term  alluvion  is  applied  to  the  deposit  itself, 
while  accretion  rather  denotes  the  act. 

If  an  island  in  a  non-navigable  stream  re- 
sults from  accretion,  it  belongs  to  the  owner 
of  the  bank  on  the  same  side  of  the  filum 
aquw;  3  Washb.  R.  P.  60;  2  Bla.  Com. 
261,  n.;  3  Kent  428;  Hargrave,  Law  Tracts 
5;  Hale,  de  Jur.  Mar.  14;  3  Barn.  &  C.  91, 
107;  Ex  parte  Jennings,  6  Cow.  (N.  Y.)  537, 
16  Am.  Dec.  417;  Ingraham  v.  Wilkinson,  4 
Pick.  (Mass.)  268,  16  Am.  Dec.  342;  Wood- 
bury v.  Short,  17  VL  3S7,  44  Am.  Dec.  344. 

"It  is  generally  conceded  that  the  riparian 
title  attaches  to  subsequent  accretions  to  the 
land  effected  by  the  gradual  and  impercepti- 
ble operation  of  natural  causes.  But  wheth- 
er it  attaches  to  land  reclaimed  by  artificial 
means  from  the  bed  of  the  river,  or  to  sud- 
den accretions  produced  by  unusual  floods,  is 
a  question  which  each  state  decides  for  it- 
self;" Barney  v.  Keokuk,  94  U.  S.  337,  24 
L.  Ed.  224;  Missouri  v.  Nebraska,  196  U.  S. 
23,  25  Sup.  Ct.  155,  49  L.  Ed.  372 ;  Goddard 
v.  Winchell,  S6  la.  71,  52  N.  W.  1124,  17  L. 
R.  A.  788,  41  Am.  St.  Rep.  481.  As  a  general 
rule,  such  accretions  do  not  belong  to  the 
riparian  owner ;  City  of  Victoria  v.  Sehott, 
9  Tex.  Civ.  App.  332,  29  S.  W.  681;  Cox  v. 
Arnold,  129  Mo.  337,  31  S.  W.  592,  50  Am. 
St.  Rep.  450;  Cooley  v.  Golden,  117  Mo.  33, 
23  S.  W.  100,  21  L.  R.  A.  300 ;  but  if,  after  an 
avulsion,  an  accretion  forms  within  the  orig- 
inal land  line,  it  belongs  to  the  riparian  own- 
er, though  separated  from  the  main  land 
by  a  slough;  Minton  v.  Steele,  125  Mo.  1S1, 
28  S.  W.  746.  Land  remade  by  accretion 
after  it  has  been  washed  away  1  elongs  to  the 
original  proprietor;  Ocean  City  Ass'n  v. 
Shriver,  64  N.  J.  L.  550,  46  Atl.  690,  51  L. 
R.  A.  425,  n.,  which  see  as  to  the  right  of 
the  owner  to  follow  accretions  across  a  di- 
vision line  previously  submerged  by  the  ac- 
tion of  the  water. 

However  accretions  may  be  commenced  or 
continued,  the  right  of  one  who  is  the  owner 


of  uplands  to  follow  and  appropriate  them 
ceases  when  the  formation  passes  laterally 
the  land  of  his  conterminous  neighbor;    Mul- 
ry  v.  Norton,  100  N.  Y.  425,  3  N.   I 
Am.  Rep.  206,  where  a  bar  separated  from 
the  mainland  by  a  lagoon  was  claimed  as  an 
accretion  by  the  owner  of  the  portion  of  the 
bar   where  the   formation   began.     This   bar 
merely  replaced  a  formation  which  had  been 
in  part  washed  away,  and  the  court  said  tha 
the  owner  of  the  nucleus  of  the  liar  could 
not,  even  if  the  process  of  its  extension  v. 
effected  by  accretion,  claim  beyond  the  | 
where  such  accretions  began  to  be  adjaci 
to  the  property  of  adjoining  owners.     See  51 
L.  R.  A.  425,  n. 

An  accretion  formed  on  the  other  side  of 
a  public  str<  et  which  bounds  the  property  of 
an  individual  belongs  to  the  street,  if  the 
fee  of  that  is  in  the  public;  Ellinger  v.  R. 
Co.,  112  Mo.  525,  20  S.  W.  S00;  City  of  SL 
Louis  v.  R.  Co.,  114  Mo.  13,  21  S.  W.  202.  A 
reliction  formed  by  the  gradual  drying  up  of 
a  lake  belongs  to  the  riparian  owners;  Po: 
ter  v.  Chipman,  8  Utah,  442,  32  Pac.  690; 
Olson  v.  Huntamer,  6  S.  D.  364,  61  N.'  W. 
479;  but  not  one  formed  by  artificial  drain- 
age; Noyes  v.  Collins,  92  la.  no;,  in  N.  W. 
250,  26  L.  R.  A.  609,  54  Am.  St.  Rep.  571. 

See  Avulsion  ;  Alluvion ;  Riparian  Pbo- 
prietor;    Island;    Reliction. 

ACCROACH.  To  attempt  to  exercise  roy- 
al power.    4  Bla.  Com.  76. 

A  knight  who  forcibly  assaulted  and  detained  one 
of  the  king's  subjects  till  he  paid  him  a  sum  of 
money  was  held  to  have  committed  treason  on  the 
ground  of   accroachment ;    1   Hale,    PI.   Cr. 

In    French   Law.     To   delay.     Whishaw. 

ACCRUAL,  CLAUSE  OF.  A  clause  in  a 
deed  of  settlement  or  a  will  providing  that 
the  share  of  one  dying  shall  vest  in  the  sur- 
vivor or  survivors. 

ACCRUE.  To  grow  to;  to  be  added  to; 
to  become  a  present  right  or  demand,  as  the 
interest  accrues  on  the  principal.  Accruing 
costs  are  those  which  become  due  and  are 
created  after  judgment;  as  the  costs  of  an 
execution.  See  Johnson  v.  Ins.  Co.,  91  [1L95, 
33  Am.  Rep.  47;  Strasser  v.  Staats,  59  Hun 
143,  13  N.  Y.  Supp.  107. 

To  rise,  -to  happen,   to  come  to  pass;    as 
the  statute  of  limitation  does  not  commence 
running   until    the   cause   of   action    hi 
crued;    Scheerer   v.    Stanley,   2   Rawle 
277;    Braddee  v.  Wiley,  10  Watts  (Pa.) 
Bacon,    Abr.    Limitation    of    Actions    (D 
Emerson  v.  The  Shawano  City,  10  Wis. 
A  cause  of  action  accrues  when  suit  may  be 
commenced  for  a  breach  of  contract ;   Amy  v. 
Dubuque.  98  U.  S.  470,  25  L.  Ed.  228.     It  is 
distinguished  from  sustain;   Adams  v.  Brown. 
4  Litt.  (Ky.)  7;    and  from  owing;    6  C.  B.  N. 
s.  429;   Gross  v.  Partenheimer,  L59  Pa.  556, 
28  Ail.  .".TO;    but  see  Cutcliff  v.  McAnally,  88 
Ala.  507,  7  South.  331;   Fay  v.  Llolloran,  So 
Barb.  (N.  Y.)  205. 


ACCUMULATION,  TRUST  FOIl 


11H 


ACKNOWLEDGMENT 


ACCUMULATION,  TRUST  FOR.     So. 

TETUITT. 

ACCUMULATIVE   LEGACY.     See  Legacy. 

ACCUSATION.  A  charge  made  to  a  com- 
petent officer  against  one  who  has  committed 
a  crime,  so  that  he  may  be  brought  to  justice 
and  punishment 

A  Dt  may  In  some  case*  be  consid- 

ered a  nor,  or  misprision   (which  see) ;    1 

Brown,  Civ.  Law  847;    2  id.  889;    Inst.    lib.   4,   tit.  '18. 

It  is  a  rule  that  no  man  Is  bound  to  accuse  him- 
self or  tc?tify  against  himself  in  a  criminal  case; 
7  Q.  B.  126.  A  man  Is  competent,  though  not  com- 
pellable, to  prove  his  own  crime ;  14  Mees.  &  W. 
256.     See  Evidence  ;    Interest;    Witness. 

ACCUSE.  To  charge  or  impute  the  corn- 
cm  of  crime  or  immoral  or  disgraceful 
conduct  or  official  delinquency.  It  does  not 
necessarily  import  the  charge  of  a  crime  by 
judicial  procedure;  State  v.  South,  5  Rich. 
(S.  C.)  489,  493;  Com.  v.  O'Brien.  12  Cush. 
(Mass.)  84;  Robbins  v.  Smith,  47  Conn.  182; 
1  C.  &  P.  479.  See  People  v.  Braman,  30 
Mich.  4G0,  where  the  court  was  divided  as 
to  the  meaning  of  the  term,  Cooley,  C.  J.,  and 
Ghristiancy,  J.,  holding  that  it  meant  any 
public  accusation  of  crime  as  well  as  a  for- 
mal complaint,  and  Graves  and  Campbell, 
J  J.,  contra;  and  Com.  v.  Cawood,  2  Va.  Cas. 
527  where,  Barbour,  J.,  dissenting,  it  was 
held  that  one  is  not  accused  until  indicted. 

ACCUSED.  One  who  is  charged  with  a 
crime  or  misdemeanor.  See  People  v.  Bra- 
man,  30  Mich.  468.  The  term  cannot  be  said 
to  apply  to  a  defendant  in  a  civil  action ; 
Castle  v.  Houston,  19  Kan.  417,  37  Am.  Rep. 
127;  and  see  Mosby  v.  Ins.  Co.,  31  Gratt. 
(Ya.)  629. 

ACCUSER.  One  who  makes  an  accusa- 
tion. 

ACCUSTOMED.  Habitual;  often  used, 
synonymous  with  usual;  Farwell  v.  Smith, 
16  N.  J.  L.  133. 

ACEQUIA.  A  canal  for  irrigation ;  a  pub- 
lic ditch. 

Where  irrigation  is  necessary,  as  in  New 
Mexico,  there  is  much  legislation  respecting 
public  ditches  and  streams,  and  those  used 
for  the  purpose  of  irrigation  are  declared  to 
be  "public  ditches  or  acoquias" ;  Comp.  L. 
N.  Mex.  tit  1,  ch.  1,  §  6. 

ACHAT,  also  ACHATE,  ACHATA,  ACH- 
ET.     In    French    Law.     A   purchase. 

It  is  used  in  some  of  our  law-books,  as  well  as 
nchctor,  a  purchaser,  which  in  some  ancient  stat- 
utes means  purveyor.  Stat.  36  Edw.  ,111.  ;  Merlin, 
Repert. 

ACHERSET.  An  ancient  English  measure 
of  grain,  supposed  to  be  the  same  with  our 

quarter,  or  eight  bushels. 

ACKNOWLEDGMENT.  The  act  of  one 
who  has  executed  a  deed,  in  going  before 
some  competent  officer  or  court  and  declar- 
ing it  to  be  his  act  or  deed. 

The  acknowledgment  is  certified  by  the  officer  or 
court;  and  the  term  acknowledgment  is  sometimes 
used  to  designate  the  certificate. 


The  function  of  an  acknowledgment  Is  two-fold: 
to  authorize  the  deed  to  be  given  in  evidence  with- 
out further  proof  of  its  execution,  and  to  entitle  it 
to  be  recorded.  The  same  purposes  may  be  accom- 
plished by  a  subscribing  witness  going  before  the 
officer  or  court  and  making  oath  to  the  fact  of  the 
execution,  which  is  certified  in  the  same  manner ; 
but  in  some  states  this  is  only  permitted  in  case  of 
the  death,  absence,  or  refusal  of  the  grantor.  In 
.  the  states  a  deed  is  void  except  as  between 
the  parties  and  their  privies,  unless  acknowledged 
or  proved. 

Nature  of.  In  some  states  the  act  is  held 
to  be  a  judicial  or  quasi-judu-ial  one;  Was- 
son  v.  Connor,  54  Mis  .  351;  Harmon  t. 
Magee,  57  Miss.  410;  Grider  v.  Mortgage  Co., 
99  Ala.  281,  12  South.  775,  42  Am.  St.  Rep. 
5S  (changing  the  rule  of  earlier  cases); 
Thompson  v.  Mortgage  Security  Co.,  110  Ala. 
400,  18  South.  315,  55  Am.  St.  Rep.  29 ;  Heil- 
man  v.  Kroh,  155  Pa.  1,  25  Atl.  751 ;  Murrell 
v.  Diggs,  84  Va.  900,  6  S.  E.  461,  10  Am.  St 
Rep.  893;  while  in  others  it  is  held  to  be  a 
ministerial  act;  Lynch  v.  Livingston,  6  N. 
Y.  422 ;  Loree  v.  Abner,  57  Fed.  159,  6  C.  C. 
A.  302;  Ford  v.  Osborne,  45  Ohio  St  1,  12 
N.  E.  526 ;  Learned  v.  Riley,  14  Allen  (Mass.) 
109. 

Who  may  take.  An  officer  related  to  the 
parties;  Lynch  v.  Livingston,  6  N.  Y.  422; 
Remington  Paper  Co.  v.  O'Dougherty,  SI  N. 
Y.  474.  The  presumption  is  that  the  officer 
took  it  within  his  jurisdiction;  Morrison  v. 
White,  16  La.  Ann.  100 ;  Rackleff  v.  Norton, 
19  Me.  274;  Bradley  v.  West,  60  Mo 
and  that  it  was  duly  executed;  Albany 
County  Savings  Bank  v.  McCarty,  71  Hun 
227,  24  N.  Y.  Supp.  991. 

In  some  states  a  notary  cannot  take  ac- 
knowledgment in  another  county  than  the 
one  within  which  he  was  appointed  and  re- 
sides; Utica  &  Black  River  R.  Co.  v.  Stew- 
art, 33  How.  Pr.  (N.  Y.)  312;  Rehkoph  v. 
Miller,  59  111.  App.  662;  nor  the  attorney  of 
record;  Gilmore  v.  Hempstead,  4  How.  Pr. 
(X.  Y.)  153  ;  Thurman  v.  Cameron,  24  Wend. 
(X.  Y.)  91  ;  Hucrhes  v.  Wilkinson's  Lessee.  37 
Miss.  482  ;  Hedger  v.  Ward,  15  B.  Mon.  (Ky.) 
106;  nor  if  his  term  has  expired ;  Gilbraith 
v.  Gallivan,  78  Mo.  452;  Carlisle  v.  Carlisle, 
78  Ala.  542.  In  Pennsylvania,  by  statute,  a 
notary  may  act  anywhere  within  the  state; 
Acts,  1893,  p.  323. 

Taking  an  acknowledgment  is  not  public 
business  such  as  may  not  be  transacted  on  a 
legal  holiday:  Slater  v.  Schack,  41  Minn. 
2G9.  43  N.  W.  7. 

One  cannot  take  an  acknowledgment  of 
a  deed  in  which  he  has  any  interest;  Bea- 
mau  v.  Whitney,  20  Mo.  413;  Groesbeck  v. 
Seeley,  13  Mich.  329;  Wasson  v.  Connor,  54 
Miss.  351;  Brown  v.  Moore,  38  Tex.  645; 
Withers  v.  Baird,  7  Watts  (Pa.)  227,  32  Am. 
Dec.  754.  Contra,  Davis  v.  Beazley,  75  Va. 
491 :  Dail  v.  Moore,  51  Mo.  589 ;  West  v. 
Krebaum,  SS  111.  263;  Green  v.  Abraham,  43 
Ark.  420. 

Sufficiency  of.  Certificate  need  only  sub- 
stantially comply  with  the  statute.    The  fact 


ACKNOWLEDGMENT 


113 


ACKNOWLEDG  M 1  N'T 


of  acknowledgment  and  the  lueniity  of  the 
parties  are  the  essential  parts,  and  must  be 
stated;  Bryan  v.  Ramirez,  8  OaL  461,  68 
Am.  Dec.  340;  Morse  v.  Clayton,  13  Smedes 
&  M.  (Miss.)  373;  Alexander  v  Merry,  <J  Mo, 
514. 

The  general  rule  applied  in  cases  of  gram- 
matical or  clerical 'errors  is  that  the  courts 
will  disregard  obvious  mistakes,  and  read 
into  the  acknowledgment  the  proper  won1.  If 
such  word  can  he  easily  ascertained ;  Merritt 
v.  Yates,  71  111.  636,  23  Am.  Rep.  128;  Cairo 
&  St.  L.  K.  Co.  v.  Parrott,  02  111.  194  ;  Durst 
v.  Daugherty,  81  Tex.  650,  17  s.  w.  388;  Mc- 
Oardla  v.  Hillings,  10  N.  D.  373,  87  N.  W. 
1008,  88  Am.  St.  Rep.  720;  Frostburg  Mut. 
Bldg.  Ass'n  v.  Brace,  51  Md.  50S ;  Hug! 
Wright,  100  Tex.  511,  101  S.  W.  789,  11  L. 
R.  A.  (X.  S.)  643,  123  Am.  St.  Rep.  827;  but 
it  is  held  that  important  words  omitted  can- 
not be  supplied  by  intendment;  Jackway  v. 
Gault,  20  Ark.  190,  73  Am.  Dec.  494;  Hayden 
v.  Westcott,  11  Conn.  129;  Newman  v.  Sam- 
uels, 17  la.  52S;  Wetmore  v.  Laird,  5  Biss. 
160,  Fed.  Cas.  No.  17,467. 

In  the  following  cases  it  was  held  that 
the  statute  must  be  strictly  complied  with ; 
Buell  v.  Irwin,  24  Mich.  145 ;  Rogers  v. 
Adams,  66  Ala.  GOO;  Myers  v.  Boyd,  96  Pa. 
427;  Wetmore  v.  Laird,  5  Biss.  160,  Fed. 
Cas.  No.  17,467;  Tully  v.  Davis,  30  111.  103, 
83  Am.  Dec.  170:  Ridgely  v.  Howard,  3  H. 
&  McK.  (Md.)  321.  Where  a  notary  takes 
the  acknowledgment  and  attaches  his  seal, 
but  fails  to  sign  his  name,  it  is  not  suffi- 
cient; Clark  v.  Wilson,  127  111.  420,  19  N.  E. 
800.  11  Am.  St.  Hop.  !  13. 

Effect  of.  Only  purchasers  for  value  can 
take  advantage  of  defects ;  Mastin  v.  Halley, 
61  Mo.  196. 

An  acknowledged  deed  is  evidence  of  seizin 
in  the  grantee,  and  authorizes  recording  it; 
Kellogg  v.  Loomis,  16  Gray  (Mass.)  48. 

An  unacknowledged  deed  is  good  between 
the  parties  and  subsequent  purchasers  with 
actual  notice;  Gray  v.  Ulrich,  8  Kan.  112; 
Kellogg  v.  Loomis,  16  Gray  (Mass.)  48;  Ste- 
vens v.  Hampton,  40  Mo.  404 ;  Bishop  v. 
Schneider,  46  Mo.  472,  2  Am.  Rep.  533;  Ryan 
v.  Carr.  40  Mo.  483. 

The  certificate  will  prevail  over  the  un- 
supported denial  of  the  grantor;  Lickmon 
v.  Harding,  65  111.  505. 

Identification  of  Grantor.  An  introduction 
by  a  common  friend  is  sufficient  to  justify 
officer  in  making  certificate;  Carpenter  v. 
Dexter,  S  Wall.  (U.  S.)  513,  19  L.  Ed.  126. 
Contra,  Jones  v.  Bach,  48  Barb.  (N.  Y.)  568T 
Nippel  v.  Hammond,  4  Col.  211.  See  Ac- 
quainted. 

A  notary  imposed  upon  by  a  personation 
is  liable  only  for  clear  negligence.  It  is  a 
legal  presumption  that  he  acted  on  reason- 
able information,  and  his  absence  of  mem- 
ory as  to  details  of  what  occurred  does  not 
destroy  that  presumption;  Com.  v.  Haines, 
97  Pa.  22S. 

Bouv.— 8 


The  certificate  is  not  invalidated  by  wau* 
of    recollection    of    the    officer;     looker    v. 
Sloan,  30  N.  J.  Eq.  394 ;    nor  by  □ 
or  omission  of,  the  date;   Huxley  v.  Har 
62  Mo.  510;    Kelly  v.  I  k,  45  Md 

WeWb  v.   Buff,  'W   Tex.  C77  ;    Yorty  v.  Paine. 
01'  Wis.  15!,  22  N.  W.  137. 

It  is  always  permissible  to  show  thai 
party  never  appeared  before  the  officer 
acknowledged  the  deed;    Donahue  v.   Mills, 
41  Ark.  421;    Pickens  v.  Knisely,  29  A'.' 
1,  11  s.  E.  932,  8  Am.  St  Rep.  622;    but  if 
he  appeared,  the  rtiflcate  of 

acknowledgment  can  only  be  6  for 

fraud  or  imposition,  with  knowledge  bro 
home   to   the  grantee:     Bouvier-Iaeger 
Land  Co.  v.  Sypher,  180  Fed.  I 

Correction.  Where  a  notary  fails  to  set 
forth  the  necessary  facts,  he  may  correct  his 
certificate,  and  may  be  compelled  by  manda- 
mus, but  equity  has  no  jurisdiction  to  cor- 
rect it;  Wannall  v.  Kem,  51  Mo.  150 ;  Hutch- 
inson v.  AinsWorth,  63  Cal.  286;  Merritt  v. 
Yates,  71  111.  636,  23  Am.  Rep.  1- 

See  paper  by  Judge  Cooley,  4  Amer.  Bar 
Assoc.  1SS1. 

ACKNOWLEDGMENT     MONEY.      A    Bum 
paid  by  tenants  of  copyhold  in  some  pai 
England,  as  a  recognition  of  their  sup 
lords.      Cowell;    Blount.      Called    a    fine   by 
Blackstone ;   2  Bla.  Com.  98. 

ACOLYTE.  An  inferior  church  servant. 
who,  next  under  the  sub-deacon,  follows  and 
waits  upon  the  priests  and  deacons,  and  i per- 
forms the  offices  of  lighting  the  candles,  car 
rying  the  bread  and  wine,  and  paying  other 
servile  attendance.     Spelman  ;    Cowell. 

ACQUAINTED.      Having   personal    knowl- 
edge of.     Kelly  v.  Calhoun.  9">  U.  S.  710.  24 
L.  Ed.  544.    Acquaintance  expresses  less  than 
familiarity;     In    re    Carpenter's    Estab 
Cal.  406.  29  Pac.  1101.    It  is  "familiar  knowl- 
edge" ;    Wyllis  v.  Ilann,  47  la.  014;    Chauvin 
v.  Wagner,  18  Mo.  531.     To  be  "personally 
acquainted  with."  and  to  '"know  perso.. 
are  equivalent  terms:    Kelly  v.  Calhoun.  95 
U.   S.   710,  24  L.   Ed.   •",!!.     When   used   with 
reference  to  a  paper  to  which  a  certificate  or 
affidavit  is  attached,  it  indicates  a   si:' 
tial  knowledge  of  the  subject-matter  thereof. 
Bohan   v.   Casey,  5  Mo.   App.   101;    D.   S.    v. 
Jones,  14  Blatchf.  90,  Fed.  <'as.  No.  15,491. 

ACQUEREUR.     In     French    and     Canadian 
Law.    One  who  acquires  title,  particulai 
immovable  property,  by  pure! 

ACQUEST.  An  estate  acquired  by  pur- 
chase,   l  Reeves,  Hist.  ling.  Law 

ACQUETS.  In  Civil  Law.  Property 
Which  has  been  acquired  by  purchase,  gift,  or 
otherwise  than  by  succession.  Immovable 
property  which  has  been  acquired  otherwise 
than  by  succession.     Merlin.  Repert 

The  profits  of  all  the  effects  of  which  the 
husband  has  the  administration  and  enjoy- 
ment, either  of  right  or  in  fact,  of  the  prod- 


ACQUETS 


114 


ACQUIESCENCE 


uce  of  the  joint  industry  of  both  husband 
and  wife,  and  of  the  estates  which  they  may 
acquire  during  the  marriage,  either  by  dona- 
tions made  jointly  to  them  Loth,  or  by  pur- 
chase, or  in  any  other  similar  way,  even  al- 
though the  purchase  be  only  in  the  name  of 
one  of  the  two.  and  not  of  both. 

This  is  the  signification  attached  to  the 
word  in  Louisiana;  La.  Civ.  Code  2371.  The 
rule  applies  to  all  marriages  contracted  in 
that  state,  or  out  of  it,  when  the  parties  aft- 
erward go  there  to  live,  as  to>  acquets  after- 
ward made  there.  The  acquets  are  divided 
into  two  equal  portions  between  the  husband 
and  wife,  or  between  their  heirs  at  the  dis- 
solution of  their  marriage. 

The  parties  may,  however,  lawfully  stipu- 
late there  shall  be  no  community  of  profits 
or  -rains;  but  have  no  right  to  agree  that 
they  shall  be  governed  by  the  laws  of  anoth- 
er country ;  Bourcier  v.  Lanusse,  3  Mart. 
O.  S.  (La.)  581;  Saul  v.  His  Creditors,  5 
Mart.  N.  S.  (La.)  571,  16  Am.  Dec.  212.  See 
2  Kent  153,  n.     See  Community;    Conquets. 

As  to  the  sense  in  which  it  is  used  in  Can- 
ada, see  2  Low.  Can.  175. 

ACQUIESCENCE.  A  silent  appearance  of 
consent.     Worcester,  Diet. 

Failure  to  make  any  objections.  2  Phil. 
117;  S  Ch.  Div.  2S6;  Scott  v.  Jackson,  89 
Cal.  258,  26  Pac.  898.  Submission  to  an  act 
of  which  one  had  knowledge.  See  Pence  v. 
Langdon,  99  U.  S.  578,  25  L.  Ed.  420.  It 
imports  full  knowledge;  3  De  G.  F.  &  J.  58. 
Tacit  assent  to  an  ultra  vires  act,  after 
knowledge  of  it,  causing  innocent  third  per- 
sons to  assume  positions  of  which  they  can- 
not be  deprived  without  loss.  Rabe  -v.  Dun- 
lap,  51  N.  J.  Eq.  40,  25  Atl.  959;  Kent  v. 
Mining  Co.,  78  N.  Y.  159. 

It  is  to  be  distinguished  from  avowed  consent,  on 
the  one  hand,  and  from  open  discontent  or  opposi- 
tion, on  the  other.  It  amounts  to  a  consent  which 
is  impliedly  given  by  one  or  both  parties  to  a  prop- 
osition, a  clause,  a  condition,  a  judgment,  or  to  any 
yiet  whatever. 

It  implies  active,  as  distinguished  from 
laches,  which  implies  passive  assent;  Lux 
v.  Haggin,  69  Cal.  255,  4  Pac.  919,  10  Pac. 
074. 

When  a  party  is  bound  to  elect  between  a 
paramount  right  and  a  testamentary  dispo- 
sition, his  acquiescence  in  a  state  of  things 
which  indicates  an  election,  when  he  was 
aware  of  his  rights,  will  be  prima  facie  evi- 
dence of  such  election.  See  2  Rop.  Leg.  439 ; 
1  Ves.  335 ;  12  id.  136 ;  3  P.  Wms.  315.  The 
acts  of  acquiescence  which  constitute  an  im- 
plied election  must  be  decided  rather  by  the 
circumstances  of  each  case,  than  by  any  gen- 
eral principle;  1  Swans.  382,  note,  and  the 
numerous  cases  there  cited. 

Acquiescence  in  the  acts  of  an  agent,  or 
one  who  has  assumed  that  .character,  will 
be  equivalent  to  an  express  authority ;  2 
Kent  47S;  Story,  Eq.  Jur.  §  255;  U.  S.  v. 
Snyder,   4  Wash.   C.   C.  559,   Fed.   Cas.   No. 


1 16,351;  Richmond  Manuf'g  Co.  v.  Starks,  4 
Mas.  296,  Fed.  Cas.  No.  1LS02 ;  Bell  v.  Cun- 
ningham, 3  Pet.  (U.  S.)  69,  81,  7  D.  Ed.  606; 
Erick  v.  Johnson,  6  Mass.  193;  Towle  v. 
Stevenson,  1  Johns.  Cas.  (N.  Y.)  110;  Manna 
V.  Barclay,  3  Cow.  (N.  Y.)  281. 

Mere  delay  in  repudiating  an  agent's  un- 
authorized contract  will  not  ratify  it,  but  is 
evidence  from  which  the  jury  may  so  infer ; 
Meyer  v.  Smith,  3  Tex.  Civ.  App.  37,  21  S. 
W.  995 ;  but  the  disapproval  must  be  within 
a  reasonable  time ;  Johnson  v.  Carrere,  45 
La.  Ann.  847,  13  South.  193 ;  and  if  payment 
has  been  made  to  an  agent  after  his  author- 
ity has  been  revoked,  the  presumption  is  that 
he  has  accounted  to  the  principal  when  there 
is  long-continued  silence  on  the  latter's  part; 
Long  v.  Thayer,  150  U.  S.  520,  14  Sup.  Ct. 
1S9,  37  L.  Ed.  1167. 

See  Agency;   Estoppel. 

ACQUIETANDIS  PLEGIIS.  A  writ  of 
justices,  formerly  lying  for  the  surety 
against  a  creditor  who  refuses  to  acquit  him 
after  the  debt  has  been  satisfied.  Reg.  of 
Writs  158;    Cow  ell;    Blount. 

ACQUIRE  (Lat.  ad,  for,  and  queerer e,  to 
seek).  To  make  property  one's  own.  To 
gain  permanently. 

It  is  regularly  applied  to  a  permanent  ac- 
quisition. A  man  is  said  to  obtain  or  pro- 
cure a  mere  temporary  acquisition.  It  has 
been  held  to  include  a  taking  by  devise ; 
Santa  Clara  Female  Academy  v.  Sullivan, 
|  116  111.  375,  6  N.  E.  183,  56  Am.  Rep.  776. 

ACQUISITION.  The  act  by  which  a  per- 
son procures  the  property  in  a  thing. 

The  thing  the  property  in  which  is  se- 
cured. 

Original  acquisition  is  that  by  which  a 
man  secures  a  property  in  a  thing  which  is 
not  at  the  time  he  acquires  it,  and  in  its 
then  existing  condition,  the  property  of  any 
other  individual.  It  may  result  from  oc- 
cupancy; 2  Kent  289;  accession;  2  Kent 
293;  intellectual  labor — namely,  for  inven- 
tions, which  are  secured  by  patent  rights; 
and  for  the  authorship  of  books,  maps,  and 
charts,  which  is  protected  by  copyrights;  1 
Bouv.  Inst.  508,  n. 

Derivative  acquisitions  are  those  which 
are  procured  from  others,  either  by  act  of 
law  or  by  act  of  the  parties.  Goods  and 
chattels  may  change  owners  by  act  of  law 
in  the  cases  of  forfeiture,  succession,  mar- 
riage, judgment,  insolvency,  and  intestacy ; 
or  by  act  of  the  parties,  as  by  gift  or  sale. 

An  acquisition  may  result  from  the  act  of 
the  party  himself,  or  those  who  are  in  his 
power  acting  for  him,  as  his  children  while 
minors ;  Gale  v.  Parrot,  1  N.  H.  28.  See  Dig. 
41.  1.  53 ;    Inst.  2.  9.  3. 

ACQUITMENT.    See  Absolution. 

ACQUITTAL.  A  release  or  discharge 
from  an  obligation  or  engagement. 

According  to  Lord  Coke,  there  are  three  kinds  of 
acquittal,    namely:     by    deed,    when    the    party    re- 


ACQUITTAL 


115 


ACRE 


leases  the  obligation;    by  prescription;    by  tenure; 
Co.   Lltt    100  a. 

The  absolution  of  a  party  charged  with  a 
crime  or  misdemeanor. 

The  absolution  of  a  party  accused  on  a 
trial  before  a  traver.se  jury.  Shaekloford  v. 
Smith,  1  Nott  &  McO.  (S.  C.)  36 ;  Teague  v. 
Wilks,  3  McCord  (S.  C.)  461.  Though  fre- 
quently expressed  as  "by  .the  jury,"  it  is  in 
fact  by  the  judgment  of  the  court ;  7  M.  &  G. 
481. 

Acquittals  in  fact  are  those  which  take 
place  when  the  jury,  upon  trial,  finds  a  ver- 
dict of  not  guilty. 

Acquittals  in  law  are  those  which  take 
place  by  mere  operation  of  law ;  as  where 
a  man  has  been  charged  merely  as  an  ac- 
cessary, and  the  principal  has  been  acquit- 
ted.    Coke,  2  Inst.  364. 

An  acquittal  is  a  bar  to  any  future  prose- 
cution for  the  offence  alleged  in  the  first  in- 
dictment. 

If  accused  Is  placed  upon  trial  under  a 
valid  indictment  before  a  legal  jury,  and 
the  latter  is  discharged  by  the  court  without 
good  cause  and  without  defendant's  consent, 
it  is  equivalent  to  an  acquittal ;  State  v. 
Walker,  26  Ind.  346;  Mount  v.  State,  14 
Ohio  295,  45  Am.  Dec.  542 ;  Klock  v.  People, 
2  Parker  Cr.  R.  (N.  Y.)  676.  There  may  be 
an  acquittal  by  reason  of  a  discharge  with- 
out a  trial  on  the  merits;  Junction  City  v. 
Keeffe,  40  Kan.  275,  19  Pac.  735.  Acquittal 
discharges  from  guilt,  pardon  only  from  pun- 
ishment; Younger  v.  State,  2  W.  Va.  579,  9S 
Am.  Dec.  791. 

When  a  prisoner  has  been  acquitted,  he 
becomes  competent  to  testify  either  for  the 
government  or  for  his  former  co-defendants; 
7  Cox,  Cr.  Cas.  341.  And  it  is  clear,  that 
where  a  married  defendant  is  entirely  re- 
moved from  the  record  by  a  verdict  pro- 
nounced in  his  favor,  his  wife  may  testify 
either  for  or  against  any  other  persons  who 
may  be  parties  to  the  record;  12  M.  &  W. 
49;' 8  Carr.  &  P.  2S4.  See  Jeopardy;  Autre- 
fois Acquit  ;   Autrefois   Convict. 

ACQUITTANCE.  An  agreement  in  writ- 
ing to  discharge  a  party  from  an  engagement 
to  pay  a  sum  of  money.  It  is  evidence  of 
payment,  and  differs  from  a  release  in  this, 
that  the  latter  must  be  under  seal,  while  an 
acquittance  need  not  be  under  seal.  Pothier, 
Oblig.  n.  781.  See  3  Salk.  29S;  Co.  Litt. 
212  a,  273  a;  Milliken  v.  Brown,  1  Bawle 
(Pa.)  391. 
ACQUITTED.     See   Acquittal. 

ACRE.  A  quantity  of  land  containing  one 
hundred  and  sixty  square  rods  of  laud,  in 
whatever  shape.  Cro.  Eliz.  47H,  ('.•;.">;  6  Co. 
67 ;  Co.  Litt.  5  b.  The  word  formerly  signi- 
fied an  open  field;  whence  acre-fight,  a  con- 
test in  an  open  field.    Jacob,  Diet. 

The  measure  seems  to  have  been  variable 
in  amount  in  its  earliest  use,  but  was  fixed 
by  statute  at  a  remote  period.    As  originally 


used,  it  was  applicable  especially  to  meadow- 
lauds;    Cowell.      Originally    a    strip    In    the 
fields    that    was    ploughed    in    the 
Maitland,  Domesday  and  Beyond 

ACRE  RIGHT.     "The  share  of  a  cit i'/eu  of 
a  New  England  town  in  the  common   li 
The    value    of    i  right    was 

quantity  in  each  town,  but  varied  in  d 
ent  towns.     A  10-a<  re  Lot  or  right  in  a 
tain   town   was  equivalent  to   113 
upland  and  12  acres  of  meadow,  and   a 
tain   exact   proportion    was    main; 
tween  the  acre  right  and  salable  lands."    Mes- 

etc,   of   the   Presidents,    Richar 
X,  230. 

ACROSS.     From  side  to  side.    Tram 
to  the  length  of.     Hannibal  &  St.  J.  R,  Co. 
v.  Packet  Co.,  125  V.  S.  260,  8  Sup.  CI 
31  L.   Ed.   7.->.l  ;   but  inett's 

Branch  Imp.   Co.,  65   Pa.   242.     It   may   mean 
over;  Brown  v.  Meady,   10  M<  25  Am. 

Dec.  248.  See  Comstock  v.  Van 
Pick.  ("Mass.)  1<;:;,  where  a  grant  of  a  right 
of  way  across  a  lot  of  land  was  held  not  to 
mean  a  right  to  enter  at  one  side,  go  partly 
across  and  come  out  at  a  place  on  the  same 
side. 

ACT  (Lat.  agcre,  to  do;  actus,  done). 
Something  done  or  established. 

In  its  general  legal  sense,  the  word  may  denote 
something  done '  by  an  individual,  as  a  private 
citizen,  or  as  an  officer;  or  by  a  body  ot  men,  as  a 
legislature,  a  council,  or  a  court  of  justice;  includ- 
ing not  merely  physical  acts,  but  also  d' 
edicts,  laws,  judgments,  resolves,  awards,  and  de- 
terminations. Some  general  laws  made  by  the  Con- 
gress of  the  United  States  are  styled  joint  resolu- 
tions, and  these  have  the  same  force  and  ei 
those  styled   acts. 

An  instrument  in  writing  to  verify  facts. 
Webster,  Diet. 

It  is  used  in  this  sense  of  the  publi  ;hed  acts  of 
assembly,    congress,    etc.     In    a    sense    appr.> 
this,    it    has    been   held    in    trials   for    treason    that 
letters   and   other  written   documents  were  acts;    1 
Fost.   Cr.  Cas.  19S ;    2  Stark.   116. 

In  Civil  Law.  A  writing  which  states  in  a 
legal  form  that  a  thing  has  been  done.  said, 
or  agreed.     Merlin.  Report. 

Private  acts  are  those  made  by  private 
persons  as  registers  in  relation  to  their  re- 
ceipts and  expenditures,  schedules,  acquit- 
tances, and  the  like.  Nov.  73  >de  7. 
32.  6;  4.  21;  Dig.  22.  4;  La.  Civ.  Code  art. 
2231  to  2254;  8  Toullier,  Droit  Civ.  Franoais 
94. 

Acts  under  private  signature  are  those 
which  have  been  made  by  private  Individ- 
uals under  their  hands.  An  act  of  this  kind 
does  not  acquire  the  force  of  an  authentic 
act  by  being  registered  in  the  office  of  a  no- 
tary; Marie  Louise  v.  Cauchoix.  11  Mart. 
O.  S.  (La.)  243;  Prl  i  v.  Adams.  5  Mart.  N. 
S.  (La.)  693 ;  unless  it  has  been  properly  ac- 
knowledged before  the  officer  by  the  parties 
to  it;  Billiard  v.  Wilson,  5  Mart.  N.  S.  (La.) 
19G. 

Public  acts  are  those  which  have  a  public 


ACT 


116 


ACT  OF  GOD 


authority,  and  which  have  been  made  be- 
fore public  oliicers,  are  authorized  by  a  pub- 
lie  seal,  have  been  made  public  by  the  au- 
thority of  a  magistrate,  or  which  have  been 
extracted  and  been  properly  authenticated 
from  public  records. 

In    Evidence.     The   act  of   one  of  several 

Irators,  performed  in  pursuance  of  the 

common  design,    is   evidence   against  all   of 

them.     And   see  Treason;    Partner;   1'abt- 

jhip;  Agent;  Agency. 

In  Legislation.  A  statute  or  law  made  by 
a  legislative  body;  an  approved  bill. 

The  words  bill  and  law  are  frequently 
used  synonymously  with  act,  but  incorrectly ; 
Sedgwick  County  Com'rs  v.  Bailey,  13  Kan. 
600;  a  bill  being  only  the  draft  or  form  of 
the  act  presented  to  the  legislature  but  not 
enacted;  Southwark  Bank  v.  Com.,  26  Pa. 
440. 

General  or  public  acts  are  those  which 
bind  the  whole  community.  Of  these  the 
courts  :dicial  cognizance. 

Private  or  special  acts  are  those  which 
operate  only  upon  particular  persons  and 
private  concerns. 

The  recitals  of  public  acts  are  evidence 
of  the  facts  recited,  but  in  private  acts  they 
are  only  evidence  against  the  parties  secur- 
ing them;  Branson  v.  Wirth,  17  Wall.  (U. 
S.)  32.  21  L.  Ed.  566. 

Judicial  Act.  An  act  performed  by  a 
court  touching  the  rights  of  parties  or  prop- 
erty brought  before  it  by  voluntary  appear- 
ance, or  by  the  prior  action  of  ministerial 
officers;  in  short  by  ministerial  acts.  Flour- 
noy  v.  Jeffersonville,  17  Ind.  173,  79  Am. 
Dec.  4GS ;  Union  Pac.  R.  Co.  v.  U.  S.,  99  U. 
S.  700,  761,  25  L.  Ed.  496. 

See  Statute;  Constitutional;  Construc- 
tion ;  Interpretation  ;  Punctuation. 

Act  in  pais.  An  act  performed  out  of 
court,  and  which  is  not  a  matter  of  record. 

A  deed  or  an  assurance  transacted  be- 
tween two  or  more  private  persons  in  the 
country,  that  is,  according  to  the  old  com- 
mon law,  upon  the  very  spot  to  be  trans- 
ferred, is  matter  in  pais.     2  Bla.  Com.  294. 

ACT  OF  BANKRUPTCY.  An  act  which 
subjects  a  person  to  be  proceeded  against  as 
a  bankrupt.  See  Bankrupt;  Bankrupt 
Laws  ;  Insolvency. 

ACT  OF  GOD.  Any  accident  due  to  nat- 
ural causes  directly  and  exclusively  without 
human  intervention,  such  as  could  not  have 
been  prevented  by  any  amount  of  foresight 
and  pains,  and  care  reasonably  to  have  been 
expected.  L.  R.  1  C.  P.  D.  423.  See  also 
L.  R.  10  Ex.  255.  The  civil  law  employs,  as 
a  corresponding  term,  vis  major. 

The  term  generally  applies,  broadly,  to 
natural  accidents,  such  as  those  caused  by 
lightning,  earthquakes,  and  tempests;  Story, 
Bailm.  §  511;  Fish  v.  Chapman,  2  Ga.  349,  46 
Am.  Dec.  30.°>.  A  severe  snow-storm,  which 
blocked  up  railroads,  held  within  the  rule; 


Ballcntine  v.  R.  Co.,  40  Mo.  491,  93  Am.  Dec. 
315.      So   where   fruit-trees   were   frozen,    in 
transit,  it  was  held  to  be  by  the  act  of  Cod, 
unless  there  had  been  improper  delay  on  the 
part  of  the  carrier;   Vail  v.  R.  Co.,  63  Mo. 
230.     Also  where  fruit  is  in  transit;    Swet- 
land  v.  R.  Co.,  102  Mass.  276.    The  freezing 
of   a   canal   or  river  held   within   the   rule; 
Parsons  v.  Hardy,  14  Wend.  (N.  Y.)  215,  28 
Am.  Dec.  521;   Bowman  v.  Teall,  23   Wend. 
(N.    Y.)    306,    35   Am.    Dec.   562;    Harris    v. 
Rand,  4  N.   H.  259,  17  Am.  Dec.  421 ;  Allen 
v.  Ins.  Co.,  44  N.  Y.  437,  4  Am.  Rep.  700.    A 
frost  of  extraordinary  severity;  11  Ex.  7S1; 
and  an  extraurdinary  fall  of  snow;  28  L.  J. 
Ex.  51 ;  have  been  held  to  be  the  act  of  God. 
A  sudden  failure  of  wind  has  been  held  to 
be  an  act  of  God ;  Colt  v.  McMechen,  6  Johns. 
(N.  Y.)    160,  5  Am.  Dec.  200;  but  this  case 
has  been  doubted;  1  Sm.  L.  C.  Am.  ed.  417; 
and    Kent,    Ch.   J.,   substantially    dissented ; 
see  also  McArthur  v.  Sears,  21  Wend.    (N. 
Y.)    190.     Also   a   sudden  gust   of   wind   or 
tempest;  Gillett  v.  Ellis,  11  111.  579;  City  of 
Allegheny  v.  Zimmerman,  95  Pa.  287,  40  Am. 
Rep.  649.     Losses  by  fire  have  not  generally 
been  held  to  fall  under  the  act  of  God ;  1  T. 
R.  33;  Miller  v.  Navigation  Co.,  10  N.  Y.  431; 
Chicago  &  N.  W.  R.  Co.  v.   Sawyer,  69  111. 
285,  18  Am.  Rep.  613;  Merchants'  Dispatch 
Co.  v.  Smith,  76  111.  542   (the  Chicago  fire)  ; 
though  otherwise  when  the  fire  is  caused  by 
lightning;   Parker  v.   Flagg,  26   Me.  181,  45 
Am.  Dec.   101;   but  where  a   distant  forest 
fire  was  driven  by  a  tornado,  to  where  a  car- 
rier's cars  were  on  the  track  awaiting  a  lo- 
comotive, their  destruction  was  held  to  be  by 
the  act  of  God ;  Pennsylvania  R.  Co.  v.  Fries, 
87  Pa.  234;  but  see  Chevallier  v.  Straham,  2 
Tex.  115,  47  Am.  Dec.  639,  contra.     When  a 
flood  had  risen  higher  than  ever  before,  de- 
struction of  goods  thereby   was  held   to   be 
by  act  of  God;  Read  v.  Spaulding,  30  N.  Y. 
630,  86  Am.  Dec.  426,  or  where  there  is  a 
flood;   Long  v.  R.   Co.,   147  Pa.  343,   23  Atl. 
459,  14  L.  R.  A*.  741,  30  Am.   St.  Rep.   732; 
Livezey   v.   Philadelphia,   64  Pa.  106,  3  Am. 
Rep.  578.     The  bursting  of  a  boiler  does  not 
come  within  the  act  of  God ;  M'Call  v.  Brock, 
5  Strob.  (S.  C.)  119.    See  Sherman  v.  Wells, 
28  Barb.  (N.  Y.)  403;  Fergusson  v.  Brent,  12 
Md.  9,  71  Am.  Dec.  582 ;  Sprowl  v.  Kellar,  4 
Stew.  &  P.    (Ala.)   3S2;  Hill  v.  Sturgeon,  28 
Mo.    323.      If    water    in   a   spring    failed    by 
reason  of  drouth,  there  is  no  breach  of  con- 
tract for  its  supply;  Ward  v.  Vance,  93  Pa. 
502.     If  a  person  is  thrown  from  his  horse 
and  injured,  the  resulting  illness  was  con- 
sidered an  act  of  God ;  People  v.  Tubbs,  37 
N.  Y.  586;  so  where  a  railroad  engineer  be- 
came insane;  Central. of  Georgia  Ry.  Co.  v. 
Hall,  124  Ga.  322,  52*  S.   E.   679,  4  L.  R.  A. 
(N.   S.)    898,  110  Am.  St.  Rep.  170,  4  Ann. 
Cas.  128. 

In  1  C.  P.  D.  34,  423,  Cockburn,  C.  J.,  held, 
in  an  action  for  the  loss  of  a  horse  on  ship- 
board, that  if  a  carrier  "uses  all  the  known 


ACT  OF  GOD 


117 


ACT  OF  HONOR 


means  to  which  prudent  and  experienced 
carriers  usually  have  recourse,  he  does  all 
thai  can  be  reasonably  required  of  him,  and 
if  under  such  circumstances  he  is  overpow- 
ered by  storm  or  other  natural  agency,  he  is 
within  the  rule  which  gives  immunity  from 
the  effects  of  such  vis  major  as  the  act  of 
God."  The  accident,  to  come  within  the  rule, 
must  be  due  entirely  to  natural  causes  with- 
out human  intervention ;  ibid.,  also  Mershon 
v.  Hobensack,  22  N,  J.  L.  373;  Backhouse  v. 
Sneed,  5  N.  C.  173;  Ewart  v.  Street,  2  Bail- 
ey (S.  C.)  157,  23  Am.  Dec.  143;  Smyrl  v. 
Niolon,  2  Bailey  (S.  C.)  421,  23  Am.  Dec.  146. 

The  term  is  sometimes  defined  as  equiva- 
lent to  inevitable  accident;  Neal  v.  Sauuder- 
son,  2  Sin.  &  M.  (Miss.)  572,  41  Am.  Dec. 
609;  Fish  v.  Chapman,  2  Ga.  349,  46  Am.  Dec. 
393;  but  incorrectly,  as  there  is  a  distinc- 
tion between  the  two;  although  Sir  William 
Jones  proposed  the  use  of  inevitable  acci- 
dent instead  of  Act  of  God;  Jones,  Bailm. 
104.  See  Story,  Bailm.  §  25;  2  Bla.  Com. 
122;  4  Dougl.  287;  McArthur  v.  Sears,  21 
Wend.  (N.  Y.)  190;  Neal  v.  Saund< 
2  Smedes  &  M.  (Miss.)  572,  41  Am.  Dec.  609; 
Bolton  v.   Burnett,  5   Blackf.   (Ind.)    222. 

Where  the  law  casts  a  duty  on  a  party, 
the  performance  shall  be  excused  if  it  be 
rendered  impossible  by  the  act  of  God ;  lex 
neminem  cogit  ad  impossibilia;  1  Q.  B.  D. 
548;  but  where  the  party  by  his  own  con- 
tract engages  to  do  an  act,  it  is  deemed  to 
be  his  own  fault  that  he  did  not  thereby 
provide  against  contingencies,  and  exempt 
himself  from  responsibilities  in  certain 
events;  and  in  such  case  (that  is,  in  the  in- 
stance of  an  absolute  general  contract)  the 
non-performance  is  not  excused  by  an  in- 
evitable accident,  or  other  contingency,  al- 
though not  foreseen  by,  nor  within  the  con- 
trol of,  the  party;  3  M.  &  S.  2(37;  L.  R.  5 
C.  P.  5S6 ;  L.  R.  4  Q.  B.  134 ;  Leake,  Contr. 
683. 

As  to  goods  destroyed  after  delay  in  trans- 
it, see  Alabama  G.  S.  R.  Co.  v.  Quarles,  145 
Ala.  436,  40  South.  120,  5  L.  R.  A.  (N.  S.) 
867,  117  Am.  St.  Rep.  54,  8  Ann.  Cas.  308; 
Green-Wheeler  Shoe  Co.  v.  R.  Co.,  130  la. 
123.  106  N.  W.  498,  5  L.  R.  A.  (N.  S.)  SS2, 
8  Ann.  Cas.  45. 

See  Bailment;  Common  Carrier;  Inevi- 
taele  Accident  ;  Peril  of  the  Sea  ;  Specific 
Performance. 

ACT  OF  GOVERNMENT.  The  usual  name 
of  Cromwell's  Constitution  vesting  the  su- 
preme  power  in  a  Protector  and  two  houses 
of  Parliament,  passed  March  2.~>,  1657. 

ACT  OF  GRACE.  A  term  sometimes  ap- 
plied to  a  general  pardon  or  the  granting  or 
extension  of  some  privilege  at  the  beginning 
of  a  new  reign  or  the  coming  of  age  or  mar- 
riage of  a  sovereign. 

ACT    OF    HONOR.     An  instrument  drawn 


of  exchange,  when  a  third  party  is  desirous 
of  paying  or  accepting  the  bill  for  the  honor 
of  any  or  all  of  the  parties  to  it. 

The  instrument  describes  the  bill,  recites  its  pro- 
test, and  the  fact  of  a  third  person  coming  forward 
to  accept,  and  the  person  or  persons  for  whose  hon- 
or the  acceptance  Is  made.  The  right  to  pay  the 
debt  of  another,  and  still  hold  him,  Is  allowed  by 
the  law  merchant  in  this  instance,  and  is  an  ex- 
ception to  the  general  rule  of  law  ;  and  the  right 
can  only  be  gained  by  proceeding  in  the  form  and 
manner  sanctioned  by  the  law;  Gazzam  v.  Arm- 
strong's Ex'r,  3  Dana  (Ky.)  554;    Bayley,  Bills. 

ACT  OF  INDEMNITY.  An  act  or  decree 
absolving  a  public  officer  or  other  person 
who  has  used  doubtful  powers  or  usurped 
an  authority  not  belonging  to  him  from  the 
technical  legal  penalties  or  liabilities  there- 
for or  from  making  good  losses  incurred 
thereby.     Cent.  Diet 

ACT  OF  INSOLVENCY.  Within  the  mean- 
ing of  the  national  currency  act,  an  act 
which  shows  a  bank  to  be  insolvent ;  such 
as  non-payment  of  its  circulating  I 
failure  to  make  good  the  Impairment  of  cap- 
ital or  to  keep  good  its  surplus  or  reserve; 
any  act  which  shows  the  bank  is  unable  to 
meet  its  liabilities  as  they  mature  or  to  per- 
form those  duties  which  the  law  Imposes  for 
the  purpose  of  sustaining  its  credit;  In  re 
Manufacturers'  Nat.  Bank,  5  Biss.  504,  Fed.. 
Cas.  No.  9,051  ;  Irons  v.  Bank,  6  Biss.  301, 
Fed.  Cas.  No.  7.0US.    See  Insolvency. 

ACT    OF    PARLIAMENT.     See   Statute. 

ACT  ON  PETITION.  A  form  of  summary 
proceeding  formerly  in  use  in  the  High  Court 
of  Admiralty,  in  England,  in  which  the  par- 
ties stated  their  respective  cases  briefly,  and 
supported  their  statements  by  affidavit.  2 
Dods.  Adm.  174,  184;  1  Ilagg.  Adin.  1,  note. 

The  suitors  of  the  English  Admiralty  were,  jjna«.r 
the  former  practice,  ordinarily  entitled  to  elect  to 
proceed  either  by  act  on  petition,  or  by  the  ancient 
and  more  formal  mode  of  "plea  and  proof  ;"  that 
is,  by  libel  and  answer,  and  the  examination  of  wit- 
nesses;   W.   Rob.   Adm.  169,   171,  172. 

ACT  OF  SETTLEMENT.  In  English  Law. 
The  statute  of  12  &  13  Will.  III.  c.  2,  by 
which  the  crown  of  England  was  limited  to 
the  present  royal  family.  1  P.la.  Com.  128; 
2  Steph.  Com.  290.  It  excluded  the  sons  and 
successors  of  James  II.  and  all  other  Roman 
Catholics,  entailed  the  crown  on  the  Elector- 
ess  Sophia  of  Hanover  as  the  nearest  Prot- 
estant heir  in  case  neither  William  III.  nor 
Anne  (afterwards  queen)  should  leave  issue. 
The  electoress  was  a  daughter  of  Elizabeth, 
sister  of  Charles  I.  One  clause  of  it  made 
the  tenure  of  judges'  office  for  life  or  good 
behavior  independent  of  the  crown. 

ACT  OF  STATE.     See  Govebnmentai,  Act. 

ACT  OF  SUPREMACY.  An  act  of  26 
Hen.  VIII.  c.  1,  which  recognized  the  king  as 
the  only  supreme  head  on  earth  of  the 
Church  of  England  having  full  power  to  cor- 
rect   all    errors,    heresies,    abuses,    off* 


up  by  a  notary  public,  after  protest  of  a  bill    contempts  and  enormities.     The  oath,  taken 


ACT  OF  SUPREMACY 


118 


ACTIO 


under  the  act,  denies  to  the  Pope  any  other 
authority  than  that  of  the  Bishop  of  Koine. 

ACT  OF  UNIFORMITY.  An  act  for  the 
regulation  of  public  worship  obli.^i nu:  all  the 
clergy  to  use  only  the  Book  of  Common 
Prayer;  13  &  14  Car.  II.  c.  4. 


ACT  OF  UNION.  The  statutes  uniting 
England  and  Wales,  27  Hen.  VTII.  c.  26,  con- 
firmed by  34  &  35  Hen.  VIII.  c.  20;  England 
and  Scotland,  5  Anne,  c.  8;  Great  Britain 
and  Ireland,  30  &  40  Geo.  HI.  c.  67. 

The  act  uniting  the  three  lower  counties 
(now  Delaware)  to  the  province  of  Pennsyl- 
vania, passed  at  Upland,  Dec.  7,  1G82,  is  so 
called. 

ACTA  DIURNA  (Lat).  A  formula  often 
used  in  signing.     Du  Cange. 

Daily  transactions,  chronicles,  journals, 
registers.  I  do  not  find  the  thing  published 
in  the  acta  diurna  (daily  records  of  affairs)  ; 
Tacitus,  Ann.  3,  3;  Ainsworth,  Lex.;  Smith, 
Lex. 

ACTA  PUBLICA  (Lat).  Things  of  gener- 
al knowledge  and  concern;  matters  transact- 
ed before  certain  public  officers.  Calvinus, 
Lex. 

ACTING.  Performing;  operating.  See 
Meyer  v.  Johnston,  64  Ala.  603,  665.  When 
applied  to  a  supervising  executive,  it  desig- 
nates, not  an  appointed  incuinbent,  but  mere- 
ly a  locum  tcnens.  Fraser  v.  U.  S.,  16  Ct. 
CI.  507.     See  Ad  Interim. 

ACTIO.  In  Civil  Law.  A  specific  mode  of 
enforcing  a  right  before  the  courts  of  law : 
e.  g.  Icr/is  actio;  actio  sacramenti.  In  this 
sense  we  speak  of  actions  in  our  law,  e.  g. 
the  action  of  debt.  The  right  to  a  remedy, 
thus;  ex  nudo  pacto  non  oritur  actio;  no 
right  of  action  can  arise  upon  a  naked  pact. 
In  this  sense  we  rarely  use  the  word  action; 
3  Ortolan,  Inst.  §  1830;  5  Savigny,  System 
10;  Mackeldey,  Civ.  L.   (13th  ed.)  §  193. 

The  first  sense  here  given  is  the  older  one.  Jus- 
tinian, following  Celsus,  gives  the  well-known  defi- 
nition: Actio  nihil  aliud  est  quam  jus  persequendi 
in  judicio  quod  sibi  debetur,  which  may  be  thus 
rendered:  An  action  is  simply  the  right  to  enforce 
one's  demands  in  a  court  of  law.  See  Inst.  Jus.  4. 
6,  de  Actionibus ;    Pollock,  Expansion  of  C.   L.  92. 

In  the  sense  of  a  specific  form  of  remedy, 
there  are  various  divisions  of  actiones. 

Actiones  chiles  are  those  forms  of  reme- 
dies which  were  established  under  the  rigid 
and  inflexible  system  of  the  civil  law,  the 
jus  civilis.  Actiones  honoraria?  are  those 
which  were  gradually  introduced  by  the 
pnetors  and  axliles,  by  virtue  of  their  equi- 
table powers,  in  order  to  prevent  the  failure 
of  justice  which  too  often  resulted  from  the 
employment  of  the  actiones  civiles.  These 
were  found  so  beneficial  in  practice  that 
they  eventually  supplanted  the  old  remedies, 
of  which  in  the  time  of  Justinian  hardly  a 
trace  remained.  Mackeldey,  Civ.  L.  §  101; 
5  Savigny,  System. 


Direct rr  artiones,  as  a  class,  were  forms 
of  remedies  for  cases  clearly  defined  and 
recognized  as  actionable  by  the  law.  Utiles 
actiones  were  remedies  granted  by  the  mag- 
istrate in  cases  to  which  no  actio  direcla 
was  applicable.  They  were  framed  for  the 
special  occasion,  by  analogy  to  the  existing 
forms,  and  were  generally  fictitious;  that 
is,  they  proceeded  upon  the  assumption  that 
a  state  of  things  existed  which  would  have 
entitled  the  party  to  an  actio  directa,  and 
the  cause  was  tried  upon  this  assumption, 
which  the  other  party  was  not  allowed  to 
dispute.    5  Savigny,  System  §  215. 

Again,  there  are  actiones  in  personam  and 
actiones  in  rem.  The  former  class  includes 
all  remedies  for  the  breach  of  an  obligation, 
and  are  considered  to  be  directed  against 
the  person  of  the  wrong-doer.  The  second 
class  comprehends  all  remedies  devised  for 
the  recovery  of  property,  or  the  enforcement 
of  a  right  not  founded  upon  a  contract  be- 
tween the  parties,  and  are  therefore  consid- 
ered as  rather  aimed  at  the  thing  in  dis- 
pute, than  at  the  person  of  the  defendant. 
Mackeldey,  Civ.  L.  §  195 ;  5  Savigny,  System, 
§  206;  3  Ortolan,  Inst.  §  1952. 

In  respect  to  their  object,  actions  are  ei- 
ther actiones  rei  persequendi  causa  com- 
paratce,  to  which  class  belong  all  in  rem 
actiones,  and  those  of  the  actiones  in  per- 
sonam which  were  directed  merely  to  the  re- 
covery of  the  value  of  a  thing,  or  compen- 
sation for  an  injury;  or  they  are  actiones 
paznales,  called  also  actiones  ex  delicto,  in 
which  a  penalty  was  recovered  of  the  delin- 
quent, or  actiones  mixta;,  in  which  were  re- 
covered both  the  actual  damages  and  a  pen- 
alty in  addition.  These  classes,  actiones 
pcenales  and  actiones  mixtw,  comprehended 
cases  of  injuries,  for  which  the  civil  law 
permitted  redress  by  private  action,  but 
which  modern  civilization  universally  re- 
gards as  crimes;  that  is,  offences  against, 
society  at  large,  and  punished  by  proceed- 
ings in  the  name  of  the  state  alone.  Thus, 
theft,  receiving  stolen  goods,  robbery,  mali- 
cious mischief,  and  the  murder  or  negligent 
homicide  of  a  slave  (in  which  case  an  injury 
to  property  was  involved),  gave  rise  to  pri- 
vate actions  for  damages  against  the  delin- 
quent. Inst.  4.  1.  De  obligationibus  qua;  ex 
delicto  nascuntur;  id.  2.  De  bonis  vi  raptis; 
id.  3.  De  lege  Aquilia.  And  see  Mackeldey, 
Civ.  L.  §  196;  5  Savigny,  System  §  210. 

In  respect  to  the  mode  of  procedure;  ac- 
tiones in  personam  are  divided  into  strict i 
juris,  and  bonce  fldei  actiones.  In  the  for- 
mer the  court  was  confined  to  the  strict  let- 
ter of  the  law;  in  the  latter  something  was 
left  to  the  discretion  of  the  judge,  who  was 
governed  in  his  decision  by  considerations 
of  what  ought  to  be  expected  from  an  honest 
man  under  circumstances  similar  to  those 
of  the  plaintiff  or  defendant  Mackeldey, 
Civ.  L.  §  197  a. 


ACTIO 


119 


ACTIO 


In  Savlgny's  System  there  are  more  than 
a  hundred  different  species  of  actio  mention- 
ed, and  even  in  the  succinct  treatise  of 
Mackeldey  nearly  eighty  are  enumerated. 

In  addition  to  the  works  cited  may  be  add- 
ed the  Introduction  to  Sandars'  Justinian, 
which  may  be  profitably  consulted. 

To  this  brief  explanation  of  the  most  important 
classes  of  actionem  we  subjoin  an  outline  of  the 
Roman  system  of  procedure.  From  the  time  of  the 
twelve  tables  (and  probably  from  a  much  earlier 
period)  down  to  about  the  middle  of  the  sixth  cen- 
tury of  Rome,  the  system  of  procedure  was  that 
known  as  the  actiones  leijis.  Of  these  but  Ave  have 
come  down  to  us  by  name ;  the  actio  sacramenti, 
the  actio  per  judicis  postulationem,  the  actio  per 
condictioncm,  the  actio  per  manus  injectionem,  and 
the  actio  per  pignoris  ca/ptionem.  The  first  three  of 
these  were  actions  in  the  usual  sense  of  the  term; 
the  last  two  were  modes  of  execution.  Th 
sacramenti  is  the  best  known  of  all,  because  from 
the  nature  of  the  questions  decided  by  means  of  it, 
which  Included  those  of  status,  of  property  ex  jure 
Quiritium,  and  of  successions  ;  and  from  the  great 
popularity  of  the  tribunal,  the  centumviri,  which 
had  cognizance  of  these  questions,  it  was  retained 
in  practice  long  after  the  other  actions  had  suc- 
cumbed to  a  more  liberal  system  of  procedure. 
As  the  actio  sacramenti  was  the  longest-lived,  so  It 
was  also  the  earliest,  of  the  actiones  leges;  and  it 
is  not  only  in  many  particulars  a  type  of  the  whole 
class,  but  the  other  species  are  conceived  to  have 
been  formed  by  successive  encroachments  upon  Its 
field.  The  characteristic  feature  of  this  action  was 
the  sacramentum,  a  pecuniary  deposit  made  in 
court  by  each  party,  which  was  to  be  forfeited  by 
the  loser.  Subsequently,  however,  the  parties  were 
allowed,  instead  of  an  actual  deposit,  to  give  secu- 
rity in  the  amount  required.  Our  knowledge  of  all 
these  actions  is  exceedingly  slight,  being  derived 
from  fragments  of  the  earlier  jurisprudence  pre- 
served in  literary  works,  laboriously  pieced  togeth- 
er by  commentators,  and  the  numerous  gaps  filled 
out  by  aid  of  ingenious  and  most  copious  conjec- 
tures. They  abounded  in  sacramental  words  and 
significant  gestures,  and,  while  they  were  inflexibly 
rigid  in  their  application,  they  possessed  a  charac- 
ter almost  sacred,  so  that  the  mistake  of  a  word 
or  the  omission  of  a  gesture  might  cause  the  loss  of 
a  suit.  In  the  nature  of  things,  such  a  system  could 
not  maintain  itself  against  the  advance  of  civiliza- 
tion, bringing  with  it  increased  complications  in  all 
the  relations  of  man  to  man ;  and  accordingly  we 
find  that  it  gradually,  but  sensibly,  declined,  and 
that  at  the  time  of  Justinian  not  a  trace  of  it  ex- 
isted in  practice.  See  3  Ortolan,  Justinian  467  et 
seq. 

About  the  year  of  Rome  507  began  the  introduc- 
tion of  the  system  known  as  the  procedure  per 
formulam,  or  ordinaria  judicia.  An  important  part 
of  the  population  of  Rome  consisted  of  foreigners, 
whose  disputes  with  each  other  or  with  Roman 
citizens  could  not  be  adjusted  by  means  of  the  ac- 
tiones leges,  these  being  entirely  confined  to  ques- 
tions of  the  strict  Roman  law,  which  could  only 
arise  between  Roman  citizens. 

To  supply  the  want  of  a  forum  for  foreign  resi- 
dents, a  magistrate,  the  praetor  peregrinus,  was 
constituted  with  jurisdiction  over  this  class  of  suits, 
and  from  the  procedure  established  by  this  new 
court  sprang  the  formulary  system,  which  proved 
so  convenient  in  practice  that  it  was  soon  adopted 
in  suits  where  both  parties  were  Roman  citizens, 
and  gradually  withdrew  case  after  case  from  the 
domain  of  the  Icgis  actiones,  until  few  questions 
were  left  in  which  that  cumbrous  procedure  con- 
tinued to  be  employed. 

An  important  feature  of  the  formulary  syst>  m, 
though  not  peculiar  to  that  system,  was  the  distinc- 
tion between  the  jus  and  the  judicium,  between  the 
magistrate  and  the  judge.  The  magistrate  was 
vested  with  the  civil  authority,  imperium,  and  that 
jurisdiction  over  law-suits  which  in  every  state  is 
Inherent   In   the    supreme   power;     he    received   the 


parties,  heard  their  conflicting  statements,  and    re- 
ferred the  case  to  a  special  tribunal  of  one  or  more 
persons,    judex,    arbiter,    recuperatores.      The    func- 
tion of  this  tribunal  was  to  ascertain  thi 
pronounce  Judgment  thereon,   In   confor:: 
special    authorization    to    that    effect    conferr 
the   magistrate.     Here   the    authority    of   the 
ended ;     if    the    defeated    party    refused    to    comply 
with   the  sentence,   the  victor  must  again  resort  to 
the  magistrate  to  enforce  the  Judgment.    From  this 
it  would  appear  that  the  functions  of  the  judge  or 
judges    under    the    Roman   system   correspond 
many    respects   with    those  of   the   Jury   at   common 
law.     They   decided  the   question   of   fact   sub' 
to  them  by  the  magistrate,  as  the  Jury  deci'i 
issue  eliminated  by   the   pleadings  ;     and,   the  deci- 
sion made,  their  functions  ceased,  like  those  of  the 
jury. 

As  to  the  amount  at  stake,  the  magistrate.  In  cas- 
es admitting  it,  had  the  power  to  fix  the  sum  in 
dispute,  and  then  the  Judge's  duties  were  confined 
to  the  simple  question  whether  the  sum  sp< 
was  due  the  plaintiff  or  not;  and  if  he  i 
diminished  this  amount  he  subjected  himself  to  an 
action  for  damages.  In  other  cases,  instead  of  a 
precise  sum,  the  magistrate  fixed  a  maximum  sum, 
beyond  which  the  judge  could  not  go  in  ascertain- 
ing the  amount  due;  but  in  most  cases  the  magis- 
trate left  the  amount  entirely  to  the  discretion  of 
the  judge. 

The  directions  of  the  magistrate  to  the  judge  were 
made  up  in  a  brief  statement  called  the  formula, 
which  gives  its  name  to  this  system  of  procedure. 
The  composition  of  the  formula  was  governed  by 
well-established  rules.  When  complete,  it  consisted 
of  four  parts,  though  some  of  these  were  frequently 
omitted,  as  they  were  unnecessary  in  certain  class-  . 
es  of  actions.  The  first  part  of  the  formula, 
the  demonstrate,  recited  the  subject  submitted  to 
the  judge,  and  consequently  the  facts  of  which  he 
was  to  take  cognizance.  It  varied  of  course,  with 
the  subject-matter  of  the  suit,  though  each  class 
of  cases  had  a  fixed  and  appropriate  form.  This 
form,  in  an  action  by  a  vendor  against  his  ven- 
dee, was  as  follows:  "Quod  Aulas  Ajjcrius  Numerio 
Negidio  hominem  vendidit ;"  or,  in  case  of  a  bail- 
ment, "Quod  Aulus  Agerius  apud  Numerium 
dium  hominem  deposuit."  The  second  part  of  the 
formula  was  the  intentio:  in  this  was  stated  the 
claim  of  the  plaintiff,  as  founded  upon  the  facts  set 
out  in  the  demonstrate.  This,  in  a  question  of  con- 
tracts, was  in  these  words:  "Si  parct  yumcrium 
Negidium  Aulo  Agerio  sestertium  X  milia  dare  opor- 
tere,"  when  the  magistrate  fixed  the  amount ;  or, 
"Quidquid  paret  Nuinerium  Negidium  Aulo  Agerio 
dare  facere  oportere,"  when  he  left  the  amount  to 
the  discretion  of  the  judge.  In  a  claim  of  property 
the  form  was,  "Si  paret  hominem  ex  jure  Quiritium 
Auli  Agerii  esse."  The  third  part  of  the  complete 
formula  was  the  adjudkatio,  which  contained  the 
authority  to  the  judge  to  award  to  one  party  a  right 
of  property  belonging  to  the  other.  It  was  i: 
words:     '■Quantum    adjudicari    oportct,    fudes 

ato."  The  last  part  of  the  formula  was  the 
condi  mnatio,  which  gave  the  judge  authority  to 
pronounce  his  decision  for  or  against  the  defendant. 
It    was    as    follow:- 

Aulo  Agerio  sestertium  X  milia  condemna:     si  non 
absolve,"   when   the   amount   was    fixed ;    or, 
Numcrium    Negidium    Aulo    Agerio    dum- 
demna:    si  non  pari :. 
when  the  magistrate  fixed  a  maxi 
ea    res    erit,    taritayn    pecuniam, 
Negidium  Aulo  Agerio  condemna:    si  non  pai 

,"  when  it  was  left  to  the  discretion  of  the 
judge. 

Of  these  parts,  the  intentio  and  the   condctnnati' 
were  always  employed:    the  •  '   >  was  some- 

times found  unnecessary,  and  the  adjudicatio  only- 
occurred  in  three  species  of  actions— familial  ercis- 
cundce  communi  diiidundo,  and  finium  rcgundorum 
—which  were  actions  for  division  of  an  inheritance, 
actions  of  partition,  and  suits  for  the  rectification 
of    boundaries. 

The  above  are  the  essential   parts  of  the  formula 
in  their  simplest  form ;    but  they  are  often  enlarged 


ACTIO 


120 


ACTIO  JiSTIMATORIA 


by  the  insertion  of  clauses  In  the  demonstratio,  the 
intentio,  or  the  condcmnatio,  which  were  useful  or 
necessary  In  certain  cases:  these  clauses  are  called 
odjectiones.  When  such  a  clause  was  Inserted  for 
the  benefit  of  the  defendant,  containing  a  statement 
of  his  defence  to  the  claim  set  out  In  the  intentio,  it 
was  called  an  exceptio.  To  this  the  plaintiff  might 
have  an  answer,  which,  when  inserted,  constituted 
the  replicatio,  and  so  on  to  the  dupUcatio  and  tripli- 
cate. These  clauses  like  the  intentio  in  which  they 
were  inserted,  were  all  framed  conditionally,  and 
not,  like  the  common-law  pleadings,  affirmatively. 
Thus:  "St  paret  Numerium  Negidium  Aulo  Agerio 
X  milia  dare  oportere  (intentioj  ;  si  in  ea  re  riihil 
dolo  malo  Auli  AgerU  factum  sit  neque  fiat  (ex- 
ceptio) ;     Si   non,  etc.    (replicatio). 

In  preparing  the  formula  the  plaintiff  presented 
to  the  magistrate  his  demonstratio,  intentio,  etc., 
which  was  probably  drawn  in  due  form  under  the 
advice  of  a  jurisconsult;  the  defendant  then  pre- 
sented his  adjcctiones,  the  plaintiff  responded  with 
his  replications  and  so  on.  The  magistrate  might 
modify  these,  or  insert  new  adjectiones,  at  his  dis- 
cretion. After  this  discussion  in  jure,  pro  tribunali, 
the  magistrate  reduced  the  results  to  form,  and 
sent  the  formula  to  the  judge,  before  whom  the 
parties  were  confined  to  the  case  thus  settled.  See 
3  Ortolan,  Justinian,  §§  1909  et  seq. 

The  procedure  per  formulam  was  supplanted  In 
course  of  time  by  a  third  system,  extraor  dinar  ia 
judicia,  which  in  the  days  of  Justinian  had  become 
universal.  The  essence  of  this  system  consisted  in 
dispensing  with  the  judge  altogether,  so  that  the 
magistrate  decided  the  case  himself,  and  the  dis- 
tinction between  the  jus  and  the  judicium  was  prac- 
tically abolished.  This  new  system  commenced 
with  usurpation  by  the  magistrates,  in  the  exten- 
sion of  an  exceptional  jurisdiction,  which  had  exist- 
ed from  the  time  o£  the  leges  actiones,  to  cases  not 
originally  within  its  scope.  Its  progress  may  be 
traced  by  successive  enactments  of  the  emperors, 
and  was  so  gradual  that,  even  when  it  had  com- 
pletely undermined  its  predecessor,  the  magistrate 
continued  to  reduce  to  writing  a  sort  of  formula 
representing  th£  result  of  the  pleadings.  In  time, 
however,  this  last  relic  of  the  former  practice  was 
abolished  by  an  imperial  constitution.  Thus  the 
formulary  system,  the  creation  of  the  great  Roman 
jurisconsults,  was  swept  away,  and  carried  with  it 
in  its  fall  all  those  refinements  of  litigation  in 
which  they  had  so  much  delighted.  Thenceforth  the 
distinctions  between  the  forms  of  actions  were  no 
longer  regarded,  and  the  word  actio,  losing  its  sig- 
nification of  a  form,  came  to  mean  a  right,  jus  per- 
sequendi   in  judicio   qv.nd   sibi  debetur. 

See  Ortolan,  Hist.  no.  392  et  seq.;  id.  Instit.  nos. 
1833-2067  ;  5  Savigny,  System  §  6  ;  Sandars,  Justin- 
ian, Introduction;    Gaius,  by  Abdy  &  Walker. 

The  English  "formulary  system"  of  actions  Is 
"distinctively  English  but  also  in  a  certain  sense 
very  Roman."  It  was  not  "invented  in  one  piece 
by  some  all-wise  legislator,"  but  "grew  up  little 
by  little."  The  age  of  its  rapid  growth  was  between 
1154  and  1272.  The  similarity  between  the  Roman 
and  English  formulary  systems  is  so  patent  that 
it  has  naturally  aroused  the  suggestion  that  one 
must  have  been, the  model  for  the  other,  and  It  is 
very  true  that  between  1150  and  1250,  or  thereabouts, 
the  old  Roman  law  in  its  medieval  form  exercised 
a  powerful  influence-  on  some  of  the  English  rules. 
But  the  differences  in  the  system  were  as  remarka- 
ble as  the  resemblances.  Thus  the  Praetor  hcnrd 
both  parties  before  he  composed  his  formula,  while 
the  chancellor  issues  the  writ  before  he  hears  the 
defendant's  story.  It  is  usually  "as  of  course." 
The  English  forms  of  action  were  therefore  not 
mere  rubrics,  but  were  Institutes  of  the  law.  There 
were  in  common  use  some  thirty  or  forty  actions 
between  which  there  were  large  differences.  2  Poll. 
&  Maitl.   556. 

See  Jus  Ad  Rem. 

ACTIO  /ESTIMAT0R1A,  ACTIO  QUANTI 
.VI I N  0  R  IS.  In  the  civil  law  two  names  of 
an  action   which  lay  on  behalf  of  a  buyer 


to  reduce  the  contract  price  proportionately 
to  the  defects  of  the  object,  not  to  cancel  the 
sale;  the  judex  had  power,  however,  to  can- 
cel the  sale ;   Hunter,  Rom.  Law  505. 

ACTIOARBITRARIA.  An  action  depend- 
ing on  the  discretion  of  the  judge.  In  this, 
unless  the  defendant  makes  amends  to  the 
plaintiff  at  the  judge's  discretion,  he  must  be 
condemned;   Hunter,  Rom.  Daw  9S7. 

ACTIO  BON/E  FIDEI  (Lat.  an  action  of 
good  faith).  A  class  of  actions  in  which  the 
judge  might  at  the  trial  take  into  account 
any  equitable  circumstances  affecting  either 
of  the  parties  to  the  action.  1  Spence,  Bq. 
Jur.  210. 

ACTIO  CALUMNIvE.  An  action  to  re- 
strain the  defendant  from  prosecuting  a 
trumped  up  charge  against  the  plaintiff. 
Hunter,  Rom.  Law  1020.  An  action  for  ma- 
licious prosecution.     So.  Afr.  Leg.  Diet. 

ACTIO  CIVILIS.  A  civil  as  distinguished 
from  a  criminal  action. 

ACTIO    C0MM0DATI    CONTRARIA.      An 

action  by  the  borrower  against  the  lender, 
to  compel  the  execution  of  the  contract  Po- 
thier,  Pret  d  Usage  n.  75. 

ACTIO  C0MM0DATI  DIRECTA.  An  ac- 
tion by  a  lender  against  a  borrower,  the  prin- 
cipal object  of  which  is  to  obtain  a  restitu- 
tion of  the  thing  lent  Pothier,  Pret  d  Usage 
nn.  65,  68. 

ACTIO  COMMUNI  DIVIDUNDO.  An  ac- 
tion for  a  division  of  the  property  held  in 
common.     Story,  Partn.  Bennett  ed.  §  352. 

ACTIO     C0NDICTI0     INDEBITATI.      An 

action  by  which  the  plaintiff  recovers  the 
amount  of  a  sum  of  money  or  other  thing 
he  paid  by  mistake.  Pothier,  Promutuum  n. 
140;    Merlin,  Rep. 

ACTIO  EX  CONDUCTO.  An  action  which 
the  bailor  of  a  thing  for  hire  may  bring 
against  the  bailee,  in  order  to  compel  him 
to  re-deliver  the  thing  hired.  Pothier,  du 
Contr.  de  Louage  n.  59;   Merlin,  Rep. 

ACTIO  C0NFESS0RIA.  An  affirmative 
petitory  action  for  the  enforcement  of  a  serv- 
itude.   Hunter,  Rom.  Law  425. 

ACTIO    EX   CONTRACTU.     See  Action. 

ACTIO  DAMNI  INJURIA.  The  name  of  a 
general  class  of  actions  for  damages. 

ACTIO   EX  DELICTO.     See  Action. 

ACTIO  DEPOSITI  CONTRARIA.  An  ac- 
tion which  the  depositary  has  against  the 
depositor,  to  compel  him  to  fulfil  his  engage- 
ment towards  him.     Pothier,  Du  Dep6t  n.  69. 

ACTIO  DEPOSITI  DIRECTA.  An  action 
which  is  brought  by  the  depositor  against 
the  depositary,  in  order  to  get  back  the  thing 
deposited.     Pothier,  Du  D6p6t  n.  60. 

ACTIO  DIRECTA.  A  direct  action;  an 
action  founded  on  strict  law  and  conducted 


ACTIO  DIRECT  A 


121 


ACTIO  JUDICATI 


according  to  fixed  forms  founded  on  certain 
legal  obligations. 

ACTIO  DE  DOLO  MALO.  An  action  of 
fraud.  It  lay  for  a  defrauded  person  against 
the  defrauder  and  his  heirs  who  had  been 
enriched  by  the  fraud,  to  obtain  restitution 
of  the  thing  of  which  he  had  been  fraudu- 
lently deprived  with  all  its  accessions,  or, 
where  this  was  not  practicable,  for  compen- 
sation iu  damages;  Black,  citing  MacUeldy, 
Rom.  Law  §  2127. 

ACTIO  EMPTI.  An  action  to  compel  a 
seller  to  perform  his  obligations  or  pay  com- 
pensaiit.ii  :  also  to  enforce  any  special  agree- 
ments by  him  embodied  in  a  contract  of  sale. 
Hunter,  Rom.  L.  505. 

ACTIO  EXERCITORIA.  An  action 
against  the  exereitor  or  employer  of  a  ves- 
sel.    Black  D.  Diet. 

ACTIO  AD  EXHIBENDUM.  An  action  in- 
stituted for  the  purpose  of  compelling  the 
person  against  whom  it  was  brought  to  ex- 
hibit some  thing  or  title  in  his  power. 

It  was  always  preparatory  to  another  ac- 
tion, which  lay  for  the  recovery  of  a  thing 
movable  or  immovable ;  1  Merlin,  Quest,  de 
Droit  84. 

ACTIO  IN  FACTUM.  An  action  adapted 
to  the  particular  case  which  had  an  analogy 
to  some  actio  in  jus  which  was  founded  on 
some  subsisting  acknowledged  law.  1  Spence, 
Eq.  Jur.  212.  The  origin  of  these  actions  is 
strikingly  similar  to  that  of  actions  on  the 
case  at  common  law.     See  Case. 

ACTIO  FAMILI/E  ERCISCUND/E.  An  ac- 
tion for  the  division  of  an  inheritance.  Inst 
4.  G.  20 ;    Bracton  100  &. 

ACTIO  FURTI.  An  action  of  theft.  Just 
4,  1,  13-17.  This  could  only  be  brought  for 
the  penalty  attached  to  the  offence,  and  not 
to  recover  the  thing  stolen,  for  which  other 
actions  were  provided.  Just.  4,  1,  13.  An 
appeal  of  larceny.  The  old  process  by  which 
a  thief  can  be  pursued  and  the  goods  vindi- 
cated.    2  Holdsw.  Hist  Eng.  L.  202. 

ACTIO  HONORARIA.  An  honorary  or 
praetorian  action.     Dig.  44,  7,  25,  35. 

ACTIO  JUDICATI.  An  action  instituted, 
after  four  months  had  elapsed  after  the  ren- 
dition of  judgment,  in  which  the  judge  is- 
sued his  warrant  to  seize,  first,  the  movables, 
which  were  sold  within  eight  days  after- 
wards; and  then  the  immovables,  which 
were  delivered  in  pledge  to  the  creditors,  or 
put  under  the  care  of  a  curator,  and  if,  at 
the  end  of  two  months,  the  debt  was  not 
paid,  the  land  was  sold.  Dig.  42.  1 ;  Code, 
8.  34. 

According  to  some  authorities,  if  the  de- 
fendant then  utterly  denied  the  rendition  of 
the  former  judgment,  the  plaintiff  was  driven 
to  a  new  action,  conducted  like  any  other 
action,  which  was  called  actio  judicati,  and 
which  had  for  its  object  the  determination 


of  the  question  whether  such  a  judgment  had 
been  rendered.  The-  exact  meaning  of  the 
term    Is   by   no   means  clear.  ,  igny, 

Byst  305,  411;   3  Ortolan,  Just  §  2 

ACTIO  LEGIS  AQUILI>€.  In  Civil  Law. 
An  action  under  the  Aquilian  law  to  re- 
cover damages  for  maliciously  Injuring  In 
any  way  a  thing  belonging  to  another.  Drop- 
sie's  Mackeldey's  Bom.  Law,  § 

ACTIO    EX    L0CAT0.     An  action  which  a 
i    who  let  a   thing  for  hire  to  an 
might  have  against  the  hirer.     Dig.  19,  2. 

ACTIO  MAN  D ATI.  An  action  founded  up- 
on a  mandate.     Dig.  17.  1. 

ACTIO  MIXTA.  A  mixed  action  for  the 
recovery  of  a  thing,  or  compensation  for 
damages  and  also  for  the  payment  of  a  pen- 
alty partaking  of  the  nature  of  an  action 
in  rem  and  in  i><  rsonam.  Hunter,  Rom.  L. 
340. 

ACTIO  N0N.  In  Pleading.  The  declara- 
tion in  a  special  plea  "that  the  said  plaintiff 
ought  not  to  have  or  maintain  his  aforesaid 
action  thereof  against"  the  defendant  (in 
Latin,  actionem  non  habere  debet). 

It  follows  immediately  after  the  statement 
of  appearance  and  defence;  1  Chit  Plead: 
531;   2  id.  421;    Stephens,  Plead.  394. 

ACTIO  N0N  ACCREVIT  INFRA  SEX 
ANN  OS  (Lat).  The  action  did  not  accrue 
within  six  years. 

A  plea  of  the  statute  of  limitation 
which  the  defendant  insists  that  the  plain- 
tiff's action  has  not  accrued  within  six  j 
It  differs  from  non  assumpsit  in  this:  non 
assumpsit  is  the  proper  plea  to  an  action  on 
a  simple  contract,  when  the  action  accrues 
on  the  promise;  but  when  it  does  not  accrue 
on  the  promise,  but  subsequently  to  it.  the 
proper  plea  is  actio  non  accrevit,  etc. ;  Law.  g, 
Plead.  733;  Meade  v.  M'Dowell,  5  Binn  (Pa.) 
200,  203 ;    2  Salk.  422 ;    2  Saund.  63  0. 

ACTIO  NON  ULTERIUS.  A  name  given 
in  English  pleading  to  the  distinctive  clause 
in  the  plea  to  the  further  maintenance  of 
the  action;  introduced  in  place  of  the  plea 
puis  darrein  continuance.  Steph.  PI.  64 
401 ;    Black,  Law  Diet 

ACTIO  DE  PECULI0.  An  action  concern- 
ing or  against  the  peoulium  or  separate  prop- 
erty of  a  party. 

ACTIO   DE   PECUNIA  C0NSTITUTA.     An 

action  for  money  due  under  a  promise. 
Campbell,  Rom.  L.  150. 

ACTIO  PERSONALIS.  A  personal  action. 
The  proper  term  in  the  civil  law  is  actio  in 
personam.    See  that  title  and  Actio. 

ACTIO  PERSONALIS  M0RITUR  CUM 
PERSONA  (Lat).  A  personal  action  dies 
with  the  person. 

In     Practice.     A    maxim    which    exp; 
the  law   in   regard  to  the  surviving  of  per- 
sonal actions. 


ACTIO  PERSONALIS 


122 


ACTIO  PERSONALIS 


This  maxim  does  not  apply  in  case  of  tbe 
civil  death  of  either  persons  or  corporal 
Shayne  v.  Publishing  Co.,  16S  N.  V.  70,  61   N. 
E.  115,  55  L.  R.  A.  777.  85  Am.  St.  Rep,  654. 

To  render  the  maxim  perfectly  true,  the 
expression  "personal  actions"  must  be  re- 
stricted very  mucb  within  its  usual  limits. 
In  the  most  extensive  sense,  all  actions  are 
personal  which  are  neither  real  nor  mind, 
and  in  this  sense  of  the  word  personal  the 
maxim  is  not  true.  A.  further  distinction, 
moreover,  is  to  be  made  between  personal 
actions  actually  commenced  and  pending  at 
the  death  of  the  plaintiff  or  defendant,  and 
causes  of  action  upon  which  suit  might  have 
been,  but  was  not,  brought  by  or  against  the 
•  l  in  his  lifetime.  In  the  case  of  ac- 
tions actually  commenced,  the  old  rule  was 
that  the  suit  abated  by  the  death  of  either 
party.  In  re  Connaway,  ITS  U.  S.  421,  20 
Sup.  Ct.  951,  44  L.  Ed.  1134 ;  Maeker's  Heirs 
v.  Thomas,  7  Wheat.  (U.  S.)  530,  5  L.  Ed.  515. 
But  the  inconvenience  of  this  rigor  of  the 
common  law  has  been  modified  by  statutory 
provisions  in  England  and  the  states  of  this 
country,  which  prescribe  in  substance  that 
when  the  cause  of  action  survives  to  or 
against  the  personal  representatives  of  the 
deceased,  the  suit  shall  not  abate  by  the 
death  of  the  party,  but  may  proceed  on  the 
substitution  of  the  personal  representatives 
on  the  record  by  scire  facias,  or  in  some 
states  by  simple  suggestion  of  the  facts  on 
the  record.  See  Green  v.  Watkins,  6  Wheat. 
(U.  S.)  260,  5  L.  Ed.  256. 

Contracts. — It  is  clear  that,  in  general, 
a  man's  personal  representatives  are  liable 
for  his  breach  of  contract  on  the  one  hand, 
and,  on  the  other,  are  entitled  to  enforce 
contracts  made  with  him.  This  is  the  rule; 
but  it  admits  of  a  few  exceptions ;  Stiinp- 
son  v.  Sprague,  6  Greenl.  (Me.)  470;  Wright 
v.  Eldred,  2  D.  Chipm.  (Vt.)  41. 

No  action  lies  against  executors  upon  a 
covenant  to  be  performed  by  the  testator  in 
person,  and  which  consequently  the  execu- 
tor cannot  perform,  and  the  performance 
of  which  is  prevented  by  the  death  of  tes- 
tator ;  3  Wils.  Ch.  99 ;  Cro.  Eliz.  553 ;  Howe 
Sewing  Mach.  Co.  v.  Rosensteel,  24  Fed.  5S3 ; 
as  if  an  author  undertakes  to  compose  a 
work,  or  a  master  covenants  to  instruct  an 
apprentice,  but  is  prevented  by  death.  See 
Wins.  Exec.  1467.  But,  for  a  breach  commit- 
ted by  deceased  in  his  lifetime,  his  executor 
would  be  answerable ;  1  M.  &  W.  423,  per 
Parke,  B. ;  Dickinson  v.  Calahan's  Adm'rs,  19 
Pa.  2 

As  to  what  are  such  contracts,  see  2  Perr. 
&  D.  251 ;  10  Ad.  &  E.  45 ;  1  M.  &  W.  423 ; 
Dempsey  v.  Hertzfield,  30  Ga.  866;  Siler  v. 
Gray,  86  N.  C.  566.  But  whether  the  con- 
tract is  of  such  a  nature  is  a  mere  question 
of  construction,  depending  upon  the  inten- 
tion of  the  parties ;  Cro.  Jac.  282 ;  1  Bingh. 
225;    unless   the   intention   be   such   as   the 


law  will  not  enforce;  Dickinson  v.  Calahan's 
Adm'rs,  19  Pa.  233. 

Under  a  statute  recognizing  as  surviving 
causes  of  action  those  which  survived  at 
•  ii  law,  a  cause  of  action,  on  a  covenant 
on  which  a  decedent  might  have  been  sued, 
may  be  enforced  against  his  representatives, 
and  it  was  held  that  the  rule  of  common  law 
that  a  suit  abated  though  the  cause  of  ac- 
tion survived,  was  modified  by  the  statute, 
and  a  suit  pending  against  decedent  on  a 
covenant  did  not  abate;  Sprague  v.  Greene, 
20  R.   I.  153,  37  Atl.  699. 

Again,  an  executor,  etc.,  cannot  maintain 
an  action  on  a  promise  made  to  decedent 
where  the  damage  consisted  entirely  in  the 
personal  suffering  of  the  deceased  without 
any  injury  to  his  personal  estate,  as  a  breach 
of  promise  of  marriage;  2  M.  &  S.  408;  Smith 
v.  Sherman,  4  Cush.  (Mass.)  408 ;  Hovey  v. 
Page,  55  Me.  142 ;  L.  R.  10  C.  P.  189 ;  Latti- 
more  v.  Simmons,  13  S.  &  R.  (Pa.)  183;  Mil- 
ler v.  Wilson,  24  Pa.  115;  Wade  v.  Kalb- 
fleisch,  58  N.  Y.  282,  17  Am.  Rep.  250 ;  Steb- 
bins  v.  Palmer,  1  Pick.  (Mass.)  71,  11  Am. 
Dec.  146;  Hayden  v.  Vreeland,  37  N.  J.  L. 
372,  18  Am.  Rep.  723 ;  Grubb's  Adm'r  v.  Suit, 
32  Grat.  (Va.)  203,  34  Am.  Rep.  765.  But  in 
Louisiana  the  action  survives  if  there  has 
been  a  default,  on  the  ground  that  the  ob- 
ligation to  fulfill  the  engagement  is  merged 
in  the  obligation  to  respond  in  damages  for 
the  default;  Johnson  v.  Levy,  118  La.  447, 
43  South.  46,  9  L.  R.  A.  (N.  S.)  1020,  118 
Am.  St.  Rep.  378,  10  Ann.  Cas.  722. 

Upon  the  question  whether  the  action  sur- 
vives where  there  is  not  only  personal  in- 
jury but  damage  to  property  also — where 
the  latter  is  the  chief  element  of  the  dam- 
ages sought,  the  action  survives;  2  M.  &  S. 
409;  Lattimore  v.  Simmons,  13  S.  &  R.  (Pa.) 
183;  Hovey  v.  Page,  55  Me.  142;  but  when 
the  damages  to  the  property  are  incidental 
merely  to  the  personal  injury  there  is  less 
certainty.  That  the  action  survives  is  the 
inclination  of  English  cases;  L.  R.-C.  P.  189; 
30  L.  T.  Rep.  N.  S.  765 ;  S.  C.  32  id.  36 ;  so 
also  in  Lattimore  v.  Simmons,  13  S.  &  R. 
(Pa.)  183;  Hovey  v.  Page,  55  Me.  142;  at 
least  to  the  extent  of  damage  to  property; 
Hegerich  v.  Keddie,  99  N.  Y.  269,  1  N.  E. 
787,  52  Am.  Rep.  25;  Vittuin  v.  Gilman,  48 
N.  H.  416;  Cravath  v.  Plympton,  13  Mass. 
454.  To  the  contrary  are  Smith  v.  Sherman, 
4  Cush.  (Mass.)  408;  Wade  v.  Kalbfleisch,  5S 
N.  Y.  282,  17  Am.  Rep.  250,  which,  however, 
was  for  breach  of  promise  of  marriage,  and 
therefore,  sui  generic;  and  on  this  ground  it 
is  distinguished  in  Cregin  v.  R.  Co.,  75  N.  Y. 
192,  31  Am.  Rep.  459,  where  an  action  by  a 
husband  against  a  carrier  for  personal  in- 
juries to  his  wife  was  held  to  survive  as  for 
a  wrong  to  property  rights  or  interests.  Nor 
will  an  action  of  breach  of  promise  of  mar- 
riage survive  against  the  executor  of  the 
promisor  where  no  special  damage  to  prop- 
erty is  alleged;   Chase  v.  Fitz,  132  Mass.  359; 


ACTIO  PERSONALIS 


123 


ACTIO  PERSONALIS 


Kelley  v.  Riley,  106  Mass.  339,  8  Am.  Rep. 
336;  Stebbins  v.  Palmer,  1  Pick.  (Mass.)  71. 
11  Am.  Dec.  146;  Laroeque  v.  Conbeim,  42 
Misc.  G13,  87  N.  Y.  Supp.  625;  and  this  role 
is  not  changed  by  statutes  providing  ti 
lions  for  persona]  injuries  shall  not  abate; 
Wade  v.  Kalbfleisch,  58  X.  Y.  282,  17  Am. 
Rep.  250;  Hayden  v.  Vreeland,  37  N.  J.  L. 
372,  18  Am.  Rep.  TS\ ;  Smith  v.  Sherman,  4 
Gush.  (Mass.)  408;  Ilullett  v.  Baker,  101 
Tenn.  080,  -1!)  S.  \V.  7.17.  This  action  does 
not  survive  the  death  of  either  party  ;  French 
v.  Merrill,  27  App.  Div.  <;iL\  .",•)  X.  Y.  Supp. 
77f..  .son  v.   Levy,    US  La.    117,   43 

South.  46,   :»   L.   R.   A.   (X.  S.)   1020,   US  Am. 
St.  Rep.  378,  "10  Ann.  ('as.  722. 

Xor  does  a  right  of  action  against  a  sur- 
geon for  malpractice  survive  his  death  :  Boor 
v.  Lowrey,  103  Ind.  468,  •';  N.  B.  151,  53  Am. 
Rep.  510;  Vittum  v.  Oilman,  48  X.  II.  416; 
ins  v.  French,  58  X.  II.  532;  \Xo\t  v. 
Wall,  40  Ohio  St.  Ill;  Lest  v.  Yedder,  58 
v.  Pr.  (X.  Y.)  1S7. 

But  a  right  of  action  for  work  and  labor 
survives  against  one  who  induced  plaintiff 
to  marry  and  live  with  him  on  the  false 
representation  that  he  was  a  widower  ;  Ilig- 
gins  v.  Breen,  9  Mo.  407;  as  also  the  right 
to  recover  as  for  goods  sold  and  delivered 
for  goods  transferred  in  consideration  of  a 
promise  of  marriage;  Frazer  v.  Boss,  GO 
Ind.  1.  And  as  to  the  right  of  an  executor 
or  administrator  to  sue  on  a  contract  hrokeu 
in  the  testator's  lifetime,  where  no  damage 
to  the  personal  estate  can  be  stated,  see  2 
Or.  M.  &  R.  588;  5  Tyrvvh.  9S5.  and  the  cases 
there  cited.  The  right  to  redeem  survives: 
Clark  v.  Seagraves,  ISO  Mass.  430,  71  X.  E. 
S13 ;  and  so  does  the  statutory  right  of  ac- 
tion for  money  paid  on  purchase  or  sale  of 
securities  with  intention  of  no  actual  deliv- 
ery ;  Anderson  v.  Stock  Exchange,  191  Mass. 
117,  77  N.  E.  70G;  and  the  statutory  action 
by  a  married  woman  for  damages  from  sale 
of  liquor  to  her  husband  survives  after  the 
death  of  the  saloon  keeper;  Garrigan  v. 
Iluntimer,  20  S.  D.  182,  105  N.  W.  278. 

Divorce  proceedings  being  a  personal  ac- 
tion, death  of  either  of  the  parties  before 
decree  abates  the  proceedings;  Ewald  v. 
Corbett,  32  Cal.  493;  Pearson  v.  Darrington, 
32  Ala.  257;  Danforth  v.  Danforth,  111  111. 
230;  Swan  v.  Harrison,  2  Cold.  (Tenn.)  534; 
and  the  court  will  not  require  the  executor 
to  become  a  party  in  order  to  answer  the 
wife's  demand  for  additional  allowance  for 
counsel  fees;  McCurley  v.  McCurley,  60  Md. 
185,  45  Am.  Rep.  717.  But  defendant's  death 
after  trial  but  before  judgment,  will  not 
abate  the  suit;'  Danforth  v.  Danforth,  111 
111.  236. 

The  fact  whether  or  not  the  estate  of  the 
deceased  has  suffered  loss  or  damage  would 
seem  to  be  the  criterion  of  the  right  of  the 
personal  representative  to  sue  in  another 
class  of  cases,  that  is,  where  there  is  a 
breach  of  an  implied  promise  founded  on  a 


'  tort.     For  where  the  action,  though  in  form 
ex  contractu,  is  founded  upon  a   -  the 

".  it  does  not  in  general  survive 
executor.    Thus,  with  respect  to  injur 
fecting  the  life  and  health  of  the 
all  such  a-  the  unskilful!  • 

medical  practitioners;  or  the  imprisonment 
of  the  party  occasioned  by  the  negligence  of 
his  attorney,   n<  iking, 

can  I  e  sustained  by  admin- 

istrator on  a  breach  of  the  implied  \,< 
by  the  person  employed  to  exhibit  a  proper 
I  portion  of  skill   and  attention;    such  cases 
being    in   substance   actions    for   injur! 

son;  2  M.  &  S.  415;  8  M.  &  W.  854  ; 
Jenkins  v.  French,  58  x.  BL  532.  And  it  has 
been  held  that  for  the  breach  of  an  Implied 
promise  of  an  attorney  to  Investigate  I 
tie  to  a  freehold  estate,  the  executor  of  the 
purchaser  cannot  sue  without  stating  that 
the  testator  sustained  some  actual  damag 
to  his  estate;  4  J.  It.  Moore  532.  But  the 
law  on  this  point  has  been  considerably  modi- 
fied by  statute. 

On  the  other  hand,  where  the  breach  of 
the  implied  promise  has  occasioned  dl 
to  the  personal  estate  of  the  deceased, 
though  it  has  been  said  that  an  action  in 
form  ex  contractu  founded  upon  a  tort 
whereby  damage  has  been  occasioned  to  the 
es;ate  of  the  deceased,  as  debt  against  the 
sheriff  for   an   est  a  not   survive  at 

common  law;  Xeal  v.  Haygood,  1  Qa.  514 
(though  in  this  case  the  rule  is  altered  in 
that 'State  by  statute),  yet  the  better  opinion 
is  that,  if  the  executor  can  show  that  dam- 
age has  accrued  to  the  person  of  the 
deceased  by  the  breach  of  an  express  or  im- 
plied promise,  he  may  well  sustain  an  action 
at  common  law,  to  recover  such  da 
though  the  action  is  in  some  sort  founded  on 
a  tort;  Wms.  Exec.  676;  citing,  in  citenso, 
2  Brod.  &  B.  102;  4  J.  B.  Moore  532.  And 
see  3  Woodd.  Lect  78.  So.  by  waiving  the 
tort  in  a  trespass,  at  id  going  for  the  value  of 
the  property,  the  action  of  assumpsit  U 
well  for  as  against  executors;  Middleton's 
Ex'rs  v.  Robinson,  1  Lay  (S.  C.)  58,  1  Am. 
Dec.  596. 

A  claim  for  money  paid  as  usury  survives 
against  the  estate  of  the  person  to  whom  it 
was  paid:  Roberts  v.  Burton's  Estat  -7 
Vt.  396;  and  so  does  an  action  against  a  jus- 
tice of  the  peace  on  his  official  load  lor  neg- 
lect of  duty;  State  v.  Houston,  4  Blackf. 
(Ind.)  291.  The  liability  of  a  deceased  joint 
debtor  survives;  Megrath  v.  Gilinore,  15 
Wash.  558,  46  Lac  1032;  and  the  right  of 
action  of  a  joint  payee:  Semper  v.  < 
93  Minn.  76,  100  X.  \Y.  662;  and  of  th 
vivor  of  two  joint  parties  to  a  contract; 
Northness  v.  Hillestad,  87  Minn.  .301.  91  N. 
W.  llli'. 

In    an    action    on    a    contract    commi 
against  joint  defendants,  one  of  whom  dies 
pending  the  suit,   the   rule  varies.     In  some 
of  the  states  the  persoual  representatives  of 


ACTIO  PERSONALIS 


124 


ACTIO  PERSONALIS 


the  decease!  defendant  may  be  added  as  par- 
ties and  the  judgment  taken  against  them 
jointly  with  the  survivors;  Smith  v.  Crutch- 
er,  27  Miss.  455 ;  Bennett  v.  Spillars,  9  Tex. 
519;  Ewell  v.  Tye,  76  S.  W.  875,  25  Ky.  L. 
Rep.  970;  Strause  v.  Braunreuter,  14  Pa. 
Super.  Ct  125.  In  others  the  English  rule 
obtains  which  requires  Judgment  to  be  taken 
against  the  survivors  only;  and  this  is  con- 
ceived  to  t»e  the  better  rule,  because  the  judg- 
ment against  the  original  defendants  is  de 
l>o)i in  propriis,  while  that  against  the  ex- 
ecutors is  de  bonis  testatoris;  New  Haven  & 
N.  Co.  v.  Hayden,  119  Mass.  361. 

The  death  of  one  of  several  defendants 
works  a  severance  and  the  plaintiff  should 
either  dismiss  as  to  all  except  the  adminis- 
trator, or  proceed  against  the  living  de- 
fendant only;  Marcy  v.  Whallon,  115  111. 
App.  435. 

Where  action  is  pending  against  two  part- 
ners, and  the  death  of  one  is  not  suggested 
before  judgment,  the  judgment  is  a  lien  on 
the  partnership  assets  and  binds  the  surviv- 
ing partner  personally;  Sullivan  v.  Susong, 
40  S.  C.  154,  18  S.  E.  2G8.  On  the  death  of 
a  joint  owner  of  a  mortgage  debt,  it  sur- 
vives at  law  to  the  remaining  owners  who 
alone  can  sue  for  it;  Cote  v.  Dequindre, 
Walk.  Ch.  (Mich.)  64 ;  Martin  v.  McReynolds, 
6  Mich.  70.  This  is  under  a  statute  whereby 
mortgages  are  excepted  from  the  provision 
that  grants  to  two  or  more  persons  are  to 
be  constx-ued  to  create  estates  in  common.  In 
a  comment  upon  an  English  case  where1  the 
personal  representative  was  held  to  be  a 
necessary  party,  as  he  would  in  equity  be 
entitled  to  the  decedent's  share  of  the  debt 
when  collected  (1  Beav.  539),  the  Michigan 
court  says:  "The  reason  given  for  the  deci- 
sion is  true  in  point  of  fact,  .but  the  conse- 
quence deduced  from  it  does  not  follow." 

In  an  action  commenced  against  directors, 
where  one  dies  after  the  suit  commenced, 
his  executor  need  not  be  joined;  Githers  v. 
Clark,  158  Pa.  616,  28  Atl.  232.  On  the  death 
of  a  joint  guarantor,  the  action  cannot  be 
revived  against  his  representatives;  Ameri- 
can Copper  CoT  v.  Lowther,  25  Misc.  441,  54 
N.  Y.  Supp.  9G0,  affirmed,  and  in  a  joint  bond, 
if  one  obligor  die,  the  debt  survives,  but  the 
facts  must  be  pleaded;  Bentley  v.  Harman- 
son's  Ex'rs,  1  Wash.  (Va.)  273. 

Torts. — The  ancient  maxim  which  we  are 
discussing  applies  more  peculiarly  to  cases 
of  tort.  It  was  a  principle  of  the  common 
law  that,  if  an  injury  was  done  either  to 
the  person  or  property  of  another  for  which 
damages  only  could  be  recovered  in  satis- 
faction,— where  the  declaration  imputes  a 
tort  done  either  to  the  person  or  property  of 
another,  and  the  plea  must  be  not  guilty, — 
the  action  died  with  the  person  to  whom  or 
by  whom  the  wrong  was  done.  See  Wms. 
Exec.  668;  3  Bla.  Com.  302;  1  Saund.  210, 
217,  n.  (1) ;  Viner,  Abr.  Executors  123;  Comyn, 
Dig.  Administrator,  B.  13. 


But  if  the  goods,  etc.,  of  the  testator  taken 
away  continue  in  specie  in  the  hands  of  the 
wrong-doer,  it  has  long  been  decided  that 
replevin  and  detinue  will  lie  for  the  executor 
to  recover  back  the  specific  goods,  etc. ;  W. 
Jones  17.°.,  174;  1  Saund.  217;  Trigg  v.  Con- 
way, 1  Hempst  711,  Fed.  Cas.  No.  14,173; 
Noland  v.  Leech,  10  Ark.  504;  or,  in  case 
they  are  sold,  an  action  for  money  had  and 
received  will  lie  for  the  executor  to  recover 
the  value;  1  Saund.  217.  And  actions  ex 
>,  where  one  has  obtained  the  property 
of  another  and  converted  it,  survive  to  the 
representatives  of  the  injured  party,  as  re- 
plevin, trespass  de  bonis  asport.  But  where 
the  wrong-doer  acquired  no  gain,  though  the 
other  party  has  suffered  loss,  the  death  of 
either  party  destroys  the  right  of  action; 
Taylor  v.  Lowell,  3  Mass.  351,  3  Am.  Dec. 
141;  U.  S.  v.  Daniel,  6  How.  (U.  S.)  11,  12 
L.  Ed.  323;  Middleton's  Ex'rs  v.  Robinson, 
1  Bay  (S.  C.)  58,  1  Am.  Dec.  596;  Mellen 
v.  Baldwin,  4  Mass.  480;  McEvers  v.  Pitkin, 
1  Root  (Conn.)  216. 

Successive  innovations  upon  this  rule  of 
the  common  law  have  been  made  by  various 
statutes  with  regard  to  actions  which  sur- 
vive to  executors  and  administrators. 

The  stat.  4  Ed.  III.  c.  7,  gave  a  remedy  to 
executors  for  a  trespass  done  to  the  per- 
sonal estate  of  their  testators,  which  was  ex- 
tended to  executors  of  executors  by  the  stat 
25  Ed.  III.  c.  5.  But  these  statutes  did  not 
include  wrongs  done  to  the  person  or  freehold 
of  the  testator  or  intestate ;  Wms.  Exec.  670. 
By  an  equitable  construction  of  these  stat- 
utes, an  executor  or  administrator  shall  now 
have  the  same  actions  for  any  injury  done  to 
the  personal  estate  of  the  testator  in  his 
lifetime,  whereby  it  has  become  less  bene- 
ficial to  the  executor  or  administrator,  as 
the  deceased  himself  might  have  had,  what- 
ever the  form  of  action  may  be;  1  Saund. 
217 ;  1  Carr.  &  K.  271 ;  W.  Jones  173 ;  2  M. 
&  S.  416 ;  5  Co.  27  a;  Cro.  Car.  297.  These 
statutes  are  a  recognized  part  of  the  com- 
mon law  in  this  country;  Hegerich  v.  Ked- 
die,  99  N.  Y.  200,  1  N.  E.  787,  52  Am.  Rep. 
25 ;  they  are  followed  by  many  state  statutes 
and  both  these  and  the  English  statutes 
have  been  liberally  construed  in  favor  of 
survival  im;  both  countries;  7  East  134;  Bak- 
er's Adm'r  v.  Crandall,  7S  Mo.  584,  47  Am. 
Rep.  126;  Ten  Eyck  v.  Runk,  31  N.  J.  L.  428; 
Withee  v.  Brooks,  65  Me.  18;  Aldrich  v. 
Howard,  8  R.  I.  125,  86  Am.  Rep.  615 ;  Fried 
v.  R.  Co.,  25  How.  Pr.  (N.  Y.)  2S7 ;  Nettles' 
Ex'rs  v.  D'Oyley,  2  Brev.  (S.  C.)  27.  And 
the  laws  of  the  different  states,  either  by 
express  enactment  or  by  having  adopted  the 
English  statutes,  give  a  remedy  to  executors 
in  cases  of  injuries  done  to  the  personal  prop- 
erty of  their  testator  in  his  lifetime.  At 
common  law  an  action  of  replevin  was  abat- 
ed by  the  death  of  the  defendant,  but  not 
by  the  death  of  the  -plaintiff ;  Potter  v.  Van 
Vranken,  36  N.  Y.  619,  627 ;  Mellen  v.  Bald- 


ACTIO   PERSONALIS 


L25 


ACTIO  PERSONALIS 


win,  4  Mass.  480;  1  And.  I'll;  and  see  Reist 
v.  Heibrenner,  11  S.  &  R.  (Pa.)  131 ;  Keite  v. 
Boyd,  16  id.  300;  but  the  effect  of  the  death 
of  defendant  is  generally  dependent  upon  the 
construction  of  state  statutes  under  which, 
in  most  Btates,  the  action  is  saved,  as  in 
Kingsbury's  Ex'rs  v.  Lane's  Ex'rs,  21  Mb. 
115;  McCrory  v.  Hamilton,  39  ill.  App.  490; 
O'Neill  v.  Murry,  6  Dak.  107.  50  N.  W.  G19. 
In  Handily  v.  Trott,  Cowp.  37,  Lord  Mansfield 
held  that  in  actions  ex  delicto,  the  liability 
for  the  tort  died  with  the  person,  hut  that  if 
thereby  property  was  acquired,  the  personal 
representatives  were  liable,  and  this  prin- 
ciple has  been  extensively  applied  in  connec- 
tion with  the  stat.  4  Edw.  III.  both  in  the 
enactment  and  construction  of  the  state  stat- 
utes. The  cases  are  collected  and  classified 
in  53  Am.  Rep.  525,  note. 

Trover  for  a  conversion  in  the  lifetime  of 
the  testator  may  be  brought  by  his  executor; 
Parrott's  Adm'rs  v.  Dubignon,  T.  U.  P.  Charlt 
((hi.)  261;  Eubanks  v.  Dobbs,  4  Ark.  173; 
Nations  v.  Hawkins'  Adm'rs,  11  Ala.  S59. 
But  an  executor  cannot  sue  for  expenses  in- 
curred by  his  testator  in  defending  against 
a  groundless  suit ;  Deming  v.  Taylor,  1  Day 
(Conn.)  2S5;  nor  in  Alabama  (under  the  Act 
of  1820)  for  any  injury  done  in  the  lifetime 
of  deceased;  Garey  v.  Edwards,  15  Ala.  109; 
nor  in  Vermont  can  he  bring  trespass  on  the 
case,  except  to  recover  damages  for  an  in- 
jury to  some  specific  property;  Barrett's 
Adm'r  v.  Copeland,  20  Vt.  244.  And  he  can- 
not bring  case  against  a  sheriff  for  a  false 
return  in  testator's  action;  ibid.  But  he 
may  have  case  against  the  sheriff  for  not 
keeping  property  attached,  and  delivering  it 
to  the  officer  holding  the  execution  in  his 
testator's  suit;  Barrett's  Adm'r  v.  Copeland, 
20  Vt.  214,  n.;  and  case  against  the  sheriff 
for  the  default  of  his  deputy  in  not  paying 
over  to  testator  money  collected  in  execu- 
tion :  Bellows  v.  Allen's  Adm'r,  22  Vt.  10S. 
An  action  in  the  nature  of  an  action  on  the 
case  for  injuries  resulting  from  breach  of 
carrier's  contract  to  transport  a  passenger 
safely,  survives  to  the  personal  representa- 
tive; YVinnegar's  Adm'r  v.  Ry.  Co.,  85  Ky. 
547,  4  S.  W.  237.  An  executor  may  revive 
an  action  against  the  sheriff  for  misfeasance 
of  his  deputy,  but  not  an  action  against  the 
deputy  for  his  misfeasance;  Valentine  v. 
Norton,  30  Me.  194.  So,  where  the  action  is 
merely  penal,  it  does  not  survive;  Estis'  Ex'x 
v.  Lenox,  1  N.  C.  292 ;  as  to  recover  penalties 
for  taking  illegal  fees  by  an  officer  from  the 
intestate  in  his  lifetime;  Reed  v.  Cist,  7  S.  & 
R.  (Pa.)  183.  Hut  in  such  case  the  adminis- 
trator may  recover  back  the  excess  paid 
above  the  legal  charge;   ibid. 

Under  the  common  law  an  action  to  re- 
cover a  penalty  or  forfeiture  dies  with  the 
person;  U.  S.  v.  De  Goer,  3S  Fed.  SO.  The 
actum  will  not  abate  upon  death  of  the  re- 
lator, if  it  is  brought  by  the  state  upon  an 


official  bond;    Davenport  v.  M  \    <■ 

500,  4  S.  E.  545. 

The  stat.  3  ft  4   W.   IV.  c.  4 
remedy  to  executors,  etc.,   for  Injuries  done 
in  the  lifetime  of  the  testator  or  i 
his   real   property,    which  as   not  em- 

braced   in   the   Mat.    Ed.    III.      This    statute 
introduced  a  material  alteration  in  the 
im  actio  personalis  moritur  cum   \ 
well  in  favor  of  executors  and   a 
tors  of  the  party  injured  as  against   the  per- 
sonal representatives  of  the  \  r,  but 

ts  only  injuries  to  person;.! 
property;  Chit.  PI.  Parties  to  Actions  in 
form  ex  delicto.  Similar  statutory  provi- 
sions have  been  made  in  most  of  the  states. 
Thus,  trespass  quare  clausum  fregit  sur- 
vives; Dobbs  v.  Gullidge,  20  X.  C.  197;  Mc- 
Pherson  v.  Seguine,  14  N.  O.  153;  Ken 
v.  Wilson,  1  M,l.  102;  Winters  v.  McGhee,  3 
Sneed  128;  Mustek  v.  Ry.  Co.,  114  M 
21  S.  W.  491;  Wilbur  v.  Gilmore,  21  Pick. 
(Mass.)  250;  even  if  action  was  begun  after 
the  death  of  the  injured  party;  Goodridge  v. 
Rogers,  22  Pick.  (Mass.)  495  :  Herbert  v.  Hen- 
drickson,  38  N.  J.  L.  296;  proceedings  to  re- 
cover damages  for  injuries  to  land  by  over- 
flowing; Ilowcott's  Ex'rs  v.  Warren.  29 
20;  Upper  Appomattox  Co.  v.  Harding,  11 
Gratt.  (Va.)  1  ;  contra,  McLaughlin  v.  Dor- 
sey,  1  Ilarr.  &  McII.  (Md.)  224.  Bjt 
the  United  States  circuit  court  does  not  abate 
by  death  of  plaintiff;  Hatfield  v.  BushnelL  22 
Vt.  G59,  Fed.  Cas.  No.  0,211.  In  Illinois  the 
statute  law  allows  an  action  to  executors 
only  for  an  injury  to  the  personalty,  or  per- 
sonal wrongs,  leaving  injuries  to  really  as  at 
common  law;    Reed  v.  R.  Co.,  18  111.  40.J. 

Injuries  to  the  person.     In  cases  of  inju- 
ries to  the  person,  whether  by  assault, 
tery,  false  imprisonment,  slander,  negligence, 
or  otherwise,  if  either  the  party  who  r 
ed  or  he  who  committed  the  injury  die,  the 
maxim  applies  rigidly,  and  no  action  at  com- 
mon   law    can    be    supported    either    by    or 
against  the  executors  or  other  personal  rep- 
resentatives;   3  Bla.   Com.  302;    2   M.   &   S. 
408;   Mobile  Life  Ins.  Co.  v.  Brame,  95  U.  S. 
l    L.    Ed.   5S0;    Connecticut   Mut.    Life 
Ins.  Co.  v.  R.  Co.,  25  Conn.  265,  65  Am. 
571;    Indianapolis.  P.  &  C.  R.  Co.  v.  K 
Adm'r,    23    Ind.    133;     Hyatt    v.    Adams 
Mich.  ISO:    Winnegar's  Adm'r  v.   R,  Co 
Ky.  547,  4  S.  W.  237;    Roche  v.  Carroll.  «  1 ». 
C.  79;    Thayer  v.  Dudley.  3  Mass.  296;    and 
the  action  is  not  impliedly  saved  by  a  stat- 
ute giving  a  right  of  action  after 
the  personal  representatives;  Martin's  Adm'r 
v.  R.  Co.,  151  U.  s.  673,  14  Sup.  Ct  r 
L.  Ed.  311.     A  case  for  the  seduction  of  a 
man's  daughter;    Brawner  v.   Sterdevant,  9 
Ga.  69;    for  libel;    Wallers  v.   Nettle; 
Cush.  (Mass.)  544;   for  malicious  prosecution  ; 
Nettleton  v.  Dinehart,  5  Cush.  (Mass.) 
are  instances  of  the  general  rule  stated.    The 
death  of  one  defendant,  where  partners  are 


ACTIO  PERSONALIS 


12G 


ACTIO  PERSONALIS 


sued  for  libel,  does  not  abate  tbe  action, 
even  aside  from  tbe  statute;  Brown  v.  Kel- 
logg, 182  Mass.  297,  65  N.  E.  378.  But  in 
one  respect  tbis  rule  bas  been  materially 
modified  in  England  by  Lord  Campbell's  Act, 
and  in  tbis  country  by  like  acts  in  many 
states.  These  provide  for  tbe  case  where  a 
wrongful  act,  neglect,  or  default  has  caused 
the  death  of  the  injured  person,  and  the  act 
is  of  such  a  nature  that  the  injured  person, 
had  he  lived,  would  have  bad  an  action 
against  the  wrong-doer.  In  such  cases  the 
-doer  is  rendered  liable,  in  general,  not 
to  the  executors  or  administrators  of  the  de- 
ceased, but  to  his  near  relations,  husband, 
at  or  child.  In  tbe  construction 
given  to  these  acts,  the  courts  have  held  that 
the  measure  of  damages  is  in  general  the 
pecuniary  value  of  the  life  of  the  person 
killed  to  the  person  bringing  suit,  and  that 
vindictive  or  exemplary  damages  by  reason 
of  gross  negligence  on  the  part  of  the  wrong- 
doer are  not  allowable;   Sedg.  Damages. 

Most  states  have  statutes  founded  on  Lord 
Campbell's  Act.     In  some  states,  by  statute, 
an  action  may  be  brought  against  a  city  or 
town  for  damages  to  the  person  of  deceased 
occasioned  by  an  assault  by  another's  dogs; 
Wilkins  v.  Wainwright,  173  Mass.  212,  53  N. 
E.  397;  or  by  reason  of  a  defect  in  a  highway; 
Demond  v.   City  of  Boston,  7  Gray   (Massj 
544;    Roberts  v.  City  of  Detroit,  102  Mich. 
64,  60  N.  W.  450,  27  L.  R.  A.  572 ;    but  it  is 
otherwise  in   South   Carolina;    All  v.  Barn- 
well County,  29  S.   C.   161,  7  S.  E.  58.     In 
Ohio  it  is  considered  to  be  an  action  "for  a 
nuisance"  and  abates   at   the  death  of   the 
party    injured;     Village    of    Cardington    v. 
Fredericks,  46  Ohio  442.  21  N.  E.  766.     But 
where  the  death,  caused  by  a  railway  col- 
lision,  was  instantaneous,   no  action  can  be 
maintained  under  tbe  statute  of  Massachu- 
setts;    for   the   statute   supposes   the   party 
deceased  to   have  been  once  entitled  to   an 
action   for    the   injury,   and  either   to   have  j 
commenced  the  action  and  subsequently  died, 
or,  being  entitled  to  bring  it,  to  have  died  j 
before    exercising    the    right ;     Kearney    v, 
R.  Co.,  9  Cush.  (Mass.)  108.     Where  a  per- 
son  during   his  lifetime   commenced  an    ac- ] 
tion  for  damages  for  injuries,  and  the  action 
was  pending  at  his  death,  an  action  to  re- 
cover damages  for  his  death  by  his  repre- 
sentative was  barred;    but  such  representa- 
tives had  the  right  to  continue  the  action 
commenced  by  the  decedent  in  his  lifetime; 
Edwards  v.  Ginibel,  202  Pa.  30,  51  Atl.  357 
But  it  has  been  held    hat  an  administrator 
cannot   continue   an  action   brought  by    the 
decedent  in  his  lifetime,  as  the  only  action 
maintainable  is  by  the  administrator  under 
the  statute  for  the  benefit  of  the  heirs ;  Mar- 
tin v.  R.  Co.,  58  Kan.  475,  49  Pac.  605.    But 
the  accruing  of  the  right  of  action  does  not 
depend   upon   intelligence,   consciousness,   or 
mental  capacity  of  any  kind  on  the  part  of 
the  person  injured ;    Hollenbeck  v.  R.  Co.,  9  | 


Cush.  (Mass.)  478.  By  the  removal  of  a  case 
to  the  Federal  Court,  the  right  to  revive  an 
action  for  personal  injuries,  upon  the  death 
of  the  plaintiff,  is  not  lost ;  In  re  Connaway, 
178  U.  S.  421,  20  Sup.  Ct.  951,  44  L.  Ed.  1134 ; 
Baltimore  &  Ohio  R.  Co.  v.  Joy,  173  U.  S. 
226,  19  Sup.  Ct.  3S7,  43  L.  Ed.  677. 

In  some  of  the  states  the  statutes  vest 
the  right  of  action  in  the  personal  representa- 
tives, but  the  damages  recovered  accrue  to 
the  benefit  of  the  widow  and  next  of  kin ; 
City  of  Chicago  v.  Major,  18  111.  349,  68  Am. 
Dec.  553;  Whiton  v.  R.  Co.,  21  Wis.  305; 
Needham  v.  R.  Co.,  38  Vt.  294.  And,  by  act 
of  May  30,  1908,  provision  is  made  for  com- 
pensation to  government  employes  for  in- 
juries, or,  in  case  of  death,  to  the  widow  and 
children ;    Comp.  Laws  (1911)  46S. 

Damages  may  be  recovered  by  the  parents 
in  an  action  for  death  of  minor  child;    Balti- 
more &  O.  R.  Co.  v.  State,  24  Md.  271;    Ihl 
v.  R.  Co.,  47  N.  Y.  317,  7  Am.  Rep.  450;   Ewen 
v.  R.  Co.,  38  Wis.  613;    Pennsylvania  R.  Co. 
v.  Bantom,  54  Pa.  495 ;   but  there  must  have 
been  a   prospect  of  some  pecuniary  benefit 
had  the  child  lived ;   11  Q.  B.  D.  160 ;   Rains 
v.  R.  Co.,  71  Mo.  164,  36  Am.  Rep.  459;    3 
H.  &  N.  211.     Where  a  father  and  daughter 
were  injured  by  the  same  accident,  and  he 
died  within  an  hour,  held  that  the  cause  of 
action  in  him  for  his  daughter's  death  did 
not  survive  to  the  mother,  no  action  having 
been  brought  by  him ;    King  v.   R.   Co.,  126 
Ga.  794,  55  S.  E.  965,  8  L.  R.  A.  (N.  S.)  544. 
Actions  against  the  executors  or  adminis- 
trators of  the  wrong-doer.    The  common-law 
principle  was  that  if  an  injury  was  done  ei- 
ther to  the  person  or  property  of  another, 
for  which  damages  only  could  be  recovered 
in  satisfaction,  the  action  died  with  the  per- 
son by  whom  the  wrong  was  committed ;    1 
Saund.  216  a,  note  (1) ;    McLaughlin  v.  Dor- 
sey,  1  H.  &  McH.  (Md.)  224.    And  where  the 
cause   of  action  is  founded  upon  any  mal- 
feasance or  misfeasance,  is  a  tort,  or  arises 
ex  delicto,  such  as  trespass  for  taking  goods, 
etc.,  trover,  false  imprisonment,  assault  and 
battery,    slander,  deceit,   diverting   a  water- 
course,  obstructing  lights,   and  many   other 
cases  of  the  like  kind,  where  the  declaration 
imputes  a  tort  done  either  to  the  person  or 
the  property  of  another,  and  the  plea  must 
be  not  guilty,  the  rule  of  the  common  law  is 
actio  personalis  moritur  cum  persona;    and 
if  the  person  by  whom  the  injury  was  com- 
mitted die,   no   action  of  that  kind  can  be 
brought  against  his  executor  or  administra- 
tor.   But  now  in  England  the  stat.  3  &  4  W. 
IV.  c.  42,  §  2,  authorizes  an  action  of  tres- 
pass, or  trespass  on  the  case,  for  an  injury 
committed  by   deceased   in  respect  to  prop- 
erty real  or  personal  of  another.     And  sim- 
ilar provisions  are  in  force  in  most  of  the 
states  of  this  country-     Thus,  in  Alabama, 
by  statute,  trover  may  be  maintained  against 
an  executor  for  a  conversion  by  his  testator ; 
Nations   y.   Hawkins'   Adm'rs,   11    Ala.   859. 


ACTIO  PERSONALIS 


127 


ACTIO  PERSONALIS 


So  in  Nac  Jersey,  Terhune  v.  Bray's  Ex'rs, 
16  N.  J.  L.  54  ;  Georgia,  Woods  v.  Howell,  17 
Ga.  495;  and  North  Carolina;  Weare  v. 
Burge,  32  N.  C.  169. 

In  Virginia,  by  statute,  detinue  already 
commenced  against  the  wrongdoer  survives 
against  bis  executor,  if  the  chattel  actually 
came  into  the  executor's  possession ;  other- 
wise not;  Allen's  Ex'r  v.  Harlan's  Adru'r,  6 
Leigh  (Va.)  42,  29  Am.  Dec.  205;  Catlett's 
Ex'r  v.  Russell,  6  Leigh  (Va.)  311.  So  in 
Kentucky,  Gentry's  Adm'r  v.  McKehen,  5 
Dana  (Ky.)  -4.  Replevin  in  Missouri  does 
not  abate  on  the  death  of  defendant  ;  Kins- 
bury's  Ex'rs  v.  Lane's  Ex'r,  21  Mo.  115 ;  nor 
does  an  action  on  a  replevin  bond  in  Dela- 
xcare,  Waples  v.  Adkins,  5  Harr.  (Del.)  3S1. 
It  has,  indeed,  been  said  that  where  the 
wrongdoer  has  secured  no  benefit  to  himself 
at  the  expense  of  the  sufferer,  the  cause  of 
action  does  not  survive,  but  that  where,  by 
means  of  the  offence,  property  is  acquired 
which  benefits  the  testator,  then  an  action  for 
the  value  of  the  property  survives  against  the 
executor;  U.  S.  v.  Daniel,  6  How.  (U.  S.)  11, 
12  L.  Ed.  323 ;  Coburn  v.  Ansart,  3  Mass. 
321 ;  Troup  v.  Smith's  Ex'r,  20  Johns.  (N.  Y.) 
43 ;  McEvers  v.  Pitkin,  1  Root  (Conn.)  216 ; 
Cummins  v.  Cummins,  8  N.  J.  Eq.  173;  Mid- 
dleton's  Ex'rs  v.  Robinson,  1  Bay  (S.  C.)  58, 
1  Am.  Dec.  596;  and  that  where  the  wrong- 
doer has  acquired  gain  by  his  wrong,  the  in- 
jured party  may  waive  the  tort  and  bring  an 
action  ex  contractu  against  the  representa- 
tives to  recover  compensation  ;  Jones  v.  Hoar, 
5  Pick.  (Mass.)  2S5 ;  Cummins  v.  Cummins, 
8  N.  J.  Eq.  173. 

But  this  rule,  that  the  wrongdoer  must 
have  acquired  a  gain  by  his  act  in  order  that 
the  cause  of  action  may  survive  against 
his  representatives,  is  not  universal.  Thus, 
though  formerly  in  New  York  an  action 
would  not  lie  for  a  fraud  of  deceased  which 
did  not  benefit  the  assets,  yet  it  was  other- 
wise for  his  fraudulent  performance  of  a 
contract;  Troup  v.  Smith's  Ex'r,  20  Johns. 
(N.  Y.)  43 ;  and  now  the  statute  of  that  state 
gives  an  action  against  the  executor  for  every 
injury  done  by  the  testator,  whether  by  force 
or  negligence,  to  the  property  of  another ;  El- 
der v.  Bogardus,  Lalor's  Supp.  (N.  Y.)  116; 
as  for  fraudulent  representations  by  the  de- 
ceased in  the  sale  of  land ;  Haight  v.  Hayt, 
19  N.  Y.  464 ;  or  wasting,  destroying,  taking, 
or  carrying  away  personal  property ;  Snider 
v.  Croy,  2  Johns.  (N.  Y.)  227.  Cases  in  which 
the  survival  of  actions  is  fully  considered 
are :  Right  of  action  against  a  sheriff  does 
survive ;  Lynn's  Adm'r  v.  Sisk,  9  B.  Monr. 
135;  Paine  v.  Ulmer,  7  Mass.  317;  Cravath 
v.  Plympton,  13  Mass.  454  (but  not  one 
against  a  deputy  sheriff ;  id.) ;  one  for  a 
false  return  of  execution;  Jewett  v.  Weaver, 
10  Mo.  234  (but  not  one  against  a  consta- 
ble for  unnecessary  assault  in  an  arrest; 
Melvin  v.  Evans,  48  Mo.  App.  421)  ;  case 
for  injury  to  property;  Jones  v.  Vanzandt, 


4    McLean,   599,    Fed.    Cas.    No.    7 
pass;     Hamilton    v.    Jeffries,    15    Mo. 
(both  under  statutes);   suit  against 
for  criminal  act  of  slave;   Phillips  v.    : 
er's  Adm'rs,    23    Mo.    401;     deceit    in 
of  chattels;   1  Car.  L.  Rev.  529;    the  re 
by    petition    for    damages    by    overfly 
lands;    Raleigh  &  G.  R.  Co.  v.  Jones.  'S.',  X.  < '. 
24;    against  an  attorney  for  neglect ;    Miller 
v.  Wilson.  24  Pa.  11!  :    :;  Stark.  151;    1  I  >.  & 
R.  30 ;    damages  by  reason  of  false  represen- 
tations as  to  value  of  land;    Hen 
Hensnall,  54  Fed.  320,  4  < '.  C.  A.  357.    i 
in  which  the  right  of  action  was  held  not  to 
survive  the  death  of  the   wrongdoer  or  de- 
fendant are:   For  torts  unconnected  with  con- 
tract;   Watson  v.   Loop,   12   Tex.    11;    tres- 
pass;   O'Conner  v.  Corbitt,  3  Cal.  370;    ac- 
tions   for   malicious    prosecution;     Conly    v. 
Conly,  121  Mass.  550 ;    whether  brought  in 
the  lifetime  of  the  wrongdoer  or  not;    • 
v.   Littlefield,  3   Yerg.   (Teun.)   133;    McDer- 
mott   v.    Doyle,    17    Mo.    362 ;     trespass   for 
mesne  profits;    Harker  v.  Whitaker,  5  Watts 
(Pa.)  474;    Means  v.  Presbyterian  Church.  3 
Pa.  93;   Burgess  v.  Gates,  20  Vt.  326;    In  re 
Renwick's  Estate,  2  Bradf.  Sur.  (N.  Y.)  80; 
(but  the  representative  may  be  sued  on  con- 
tract;     id.) ;     contra,    Molton    v.    Munford's 
Adm'r,  10  N.  C.  490;    Burgess  v.   Gates,  20 
Vt.  326  (by  statute) ;   case  for  false  repi 
tation :    Henshaw  v.  Miller,  17  How.  ( l 
212,  15  L.  Ed.  222.     Trespass  for  crim.  con., 
where  defendant  dies  pending  the  suit,  does 
not  survive  against  his  personal  representa- 
tives ;  Clarke  v.  McClelland,  9  Pa.  12S.    Where 
an  action  of  trespass  is  brought  by  a  widow 
for  killing  her  husband,  it  abates  with  death 
of  defendant ;  Weiss  v.  Hunsicker,  14  Pa.  Co. 
Ct  398. 

Where  the  intestate  had  falsely  pretended 
that  he  was  divorced  from  his  wife,  w 
by  another  was  induced  to  marry  him,   the 
latter  cannot  maintain  an  action  against  his 
personal    representatives;     Grim    v.    Carr's 
Adm'rs,  31  Pa.  533.     Case  for  nuisance  does 
not  lie   against   executors  of  a   wrongdoer; 
Hawkins'   Ex'rs  v.  Glass,  1  Bibb.  (Ky.)  246; 
Knox  v.  Sterling,  73  111.  214 ;    nor  for  fraud 
in  the  exchange  of  horses ;    Coker  v.  Crozier, 
5  Ala.  369;    nor,  under  the  statute  of  Vir- 
ginia, for  fraudulently  recommending  a  per- 
son as  worthy  of  credit;   Henshaw  v.  Miller, 
17  How.  (U.  S.)  212,  15  L.  Ed.  222;    no 
negligence  of  a  constable,  whereby  he 
to  make  the  money  on  an  execution ;    1 
v.  Barclay,  3  Ala.  361 ;  nor  for  misfeasance  of 
constable;    Gent   v.   Gray,   29   Me.   402;   nor 
against   the   personal    representatives    of    a 
sheriff  for  an  escape,  or  for  taking  insulb- 
cient  bail  bond;    Cunningham  v.  Jaqu< 
X.  J.  L.  42;  nor  against  the  administrators  of 
the  marshal  for  a  false  return  of  execution. 
or  imperfect  and  insufficient  entries  th< 
U.  S.  v.  Daniel,  6  How.  (U.  S.)  11,  12  L.  Ed. 
323 ;    nor   does   debt  for  an   escape  survive 
against   the   sheriff's   executors;    Martin   v. 


ACTIO  PERSONALIS 


128 


ACTIO  DE  TIGNO  JUNCTO 


Bradley,  1  Caines  (N.  Y.)  124;  alitor  in 
Georgia,  by  statute;  Neal  v.  Haygood,  1  Ga. 
.",14.  An  action  against  the  sheriff  to  recover 
penalties  for  his  failure  to  return  process 
does  not  survive  against  his  executors ;  Ma- 
son v.  Ballew,  35  N.  C.  4S3 ;  nor  does  an  ac- 
tion lie  against  the  representatives  of  a  de- 
ceased postmaster  for  money  feloniously  tak- 
en out  of  letters  by  his  clerk;  Franklin  v. 
Low,  1  Johns.  (N.  Y.)  396.    See  Abatement. 

ACTIO  IN  PERSONAM  (Lat  an  action 
against  the  person). 

A  personal  action. 

This  is  the  term  in  use  in  the  civil  law  to  denote 
the  actions  which  in  the  common  law  are  called 
personal.  In  modern  usage  it  is  applied  in  English 
and  American  law  to  those  suits  in  admiralty  which 
are  directed  against  the  person  of  the  defendant,  as 
distinguished  from  those  in  rem  which  are  directed 
against  the  specific  thing  from  which  (or  rather  the 
proceeds  of  the  sale  of  which)  the  complainant  ex- 
pects and  claims  a  right  to  derive  satisfaction  for 
the  injury  done  to  him;    2  Pars.  Mar.  Law.  663. 

ACTIO  PIGNERATITIA.  An  action  for 
a  thing  pledged  after  payment  of  the  debt. 
Hunter,  Rom.  L.  448. 

ACTIO  PR/ESCRIPTIS  VERBIS.  A  form 
of  action  which  derived  its  force  from  contin- 
ued usage  or  the  responsa  prudentium,  and 
was  founded  on  the  unwritten  law.  1 
Spence,  Eq.  Jur.  212. 

The  distinction  between  this  action  and  an  actio 
in  factum  is  said  to  be,  that  the  latter  was  founded 
not  on  usage  or  the  unwritten  law,  but  by  analogy 
to  or  on  the  equity  of  some  subsisting  law ;  1 
Spence,   Eq.  Jur.  212. 

ACTIO  REALIS  (Lat).  A  real  action. 
The  proper  term  in  the  civil  law  was  Rei 
Vindication  Inst.  4.  6.  3. 

ACTIO  REDHIBITORY.  An  action  to 
compel  a  vendor  to  take  back  the  thing  sold 
and  return  the  price  paid.  See  Redhibitory 
Actions. 

ACTIO  IN  REM.  An  action  against  the 
thing.    See  Actio  in  Personam  ;   Actio. 

ACTIO  RESCISSORIA.  An  action  for  re- 
scinding a  title  acquired  by  prescription  in  a 
case  where  the  party  bringing  the  action  was 
entitled  to  exemption  from  the  operation  of 
the  prescription. 

ACTIO  PRO  SOCIO.  An  action  by  which 
either  partner  could  compel  bis  co-partners 
to  perform  the  partnership  contract.  Story, 
Partn.,  Bennett  ed.  §  352 ;  Pothier,  Contr.  de 
Societe,  n.  34. 

ACTIO  EX  STiPULATU.  An  action 
brought  to  enforce  a  stipulation. 

ACTIO  STRICTI  JURIS  (Lat.  an  action 
of  strict  right).  An  action  in  which  the 
judge  followed  the  formula  that  was  sent  to 
him  closely,  administered  such  relief  only  as 
that  warranted,  and  admitted  such  claims 
as  were  distinctly  set  forth  by  the  pleadings 
of  the  parties.    1  Spence,  Eq.  Jur.  218. 

ACTIO  DE  TIGNO  JUNCTO..  An  action 
by  the  owner  of  material  built  by  another 


into  bis  building.  If  so  used  in  good  faith 
double  their  value  could  be  recovered;  if 
in  bad  faith,  the  owner  could  recover  suit- 
able damage  for  the  wrong,  and  recover 
the  property  when  the  building  came  down. 
So.  African  Leg.  Diet 

ACTIO  UTILIS.  An  action  for  the  bene- 
fit of  those  who  had  the  beneficial  use  of 
property,  but  not  the  legal  title;  an  equita- 
ble action.     1  Spence,  Eq.  Jur.  214. 

It    was    subsequently    extended    to    include 
other  instances  where  a   party  was  equitably   enti- 
tled to  relief,  although  he  did  not  come  within   the 
strict  letter  of  the  law  and  the  formulae  appropriate 
thereto. 

ACTIO  VENDITI.  Where  a  person  selling 
seeks  to  secure  the  performance  of  a  special 
obligation  found  in  a  contract  of  sale  or  to 
compel  the  buyer  to  pay  the  price  through 
an  action.    Hunter,  Roman  Law  332. 

ACTIO  VULGARIS.  A  legal  action;  a 
common  action.  Sometimes  used  for  actio 
directa.    1  Mackeldey,  Civ.  L.  189. 

ACTION  (Lat.  agere,  to  do).  A  doing  of 
something;  something  done. 

The  formal  demand  of  one's  right  from 
another  person,  made  and  insisted  on  in  a 
court  of  justice.  In  a  quite  common  sense, 
action  includes  all  the  formal  proceedings  in 
a  court  of  justice  attendant  upon  the  de- 
mand of  a  right  made  by  one  person  of  an- 
other in  such  court,  including  an  adjudica- 
tion upon  the  right  and  its  enforcement  or 
denial  by  the  court. 

In  the  Institutes  of  Justinian  an  action  is  defined 
as  jus  persequendi  in  judicio  quod  sibi  debetur  (the 
right  of  pursuing  in  a  judicial  tribunal  what  is  due 
one's  self);  Inst.  4.  6.  In  the  Digest,  however, 
where  the  signification  of  the  word  is  expressly 
treated  of,  it  is  said,  Actio  generaliter  sumitur :  vel 
pro  ipso  jure  quod  quis  habet  persequendi  in  judicio 
quod  suum  est  sibive  debetur;  vel  pro  hac  ipsa  per- 
secutione  seu  juris  exercitio  (Action  in  general  is 
taken  either  as  that  right  which  each  one  has  of 
pursuing  in  a  judicial  tribunal  his  own  or  what  is 
due  him;  or  as  the  pursuit  itself  or  exercise  of  the 
right)  ;  Dig.  50.  16.  16.  Action  was  also  said  con- 
tinere  formam  agendi  (to  include  the  form  of  pro- 
ceeding);   Dig.  1.  2.  10. 

This  definition  of  action  has  been  adopted  by  Tay- 
lor (Civ.  Law,  p.  50).  These  forms  were  prescribed 
by  the  praetors  originally,  and  were  to  be  very 
strictly  followed.  The  actions  to  which  they  applied 
were  said  to  be  stricti  juris,  and  the  slightest  vari- 
ation from  the  form  prescribed  was  fatal.  They 
were  first  reduced  to  a  system  by  Appius  Claudius, 
and  were  surreptitiously  published  by  his  clerk, 
Cneius  Flavius.  The  publication  was  so  pleasing  to 
the  people  that  Flavius  was  made  a  tribune  of  the 
people,  a  senator,  and  a  curule  edile  (a  somewhat 
more  magnificent  return  than  is  apt  to  await  the 
labors  of  the  editor  of  a  modern  book  of  forms)  ; 
Dig.  1.  2*5. 

These  forms  were  very  minute,  and  included  the 
form  for  pronouncing  the  decision.     See  Actio. 

In  modern  law  The  signification  of  the  right  of 
pursuing,  etc.,  has  been  generally  dropped,  though 
it  is  recognized  by  Bracton,  98  b ;  Coke,  Td  Inst.  40; 
3  Bla.  Com.  116  ;  while  the  two  latter  senses  of  the 
exercise  of  the  right  and  the  means  or  method  of 
its  exercise  are  still  found. 

The  vital  idea  of  an  action  is  a  proceeding  on  the 
part  of  one  person  as  actor  against  another,  for  the 
infringement  of   some   right  of   the    first,    before  a 


ACTION 


129 


ACTION 


court  of  justice,  In  the  manner  prescribed  by  the 
court  or  the  law. 

Subordinate  to  this  is  now  connected  in  a  quite 
common  use,  the  idea  of  the  answer  of  the  defend- 
ant or  person  proceeded  against;  the  adducing  evi- 
dence by  each  party  to  sustain  his  position ;  the 
adjudication  of  the  court  upon  the  right  of  the 
plaintiff;  and  the  means  taken  to  enforce  the  right 
or  recompense  the  wrong  done,  in  case  the  right  is 
established  and  shown  to  have  been  injuriously  af- 
fected. 

Actions  are  to  be  distinguished  from  those  pro- 
ceedings, such  as  writ  of  error,  scire  facias,  man- 
damus, and  the  like,  where,  under  the  form  of  pro- 
ceedings, the  court,  and  not  the  plaintiff,  appears  to 
be  the  actor ;  Com.  v.  Commissioners  of  Lancaster 
County,  6  Blnn.  (Pa.)  9.  And  the  term  is  not  regu- 
larly applied,  it  would  seem,  to  proceedings  in  a 
court  of  equity;  Allen  v.  Partlow,  3  S.  C.  417;  Ul- 
shafer  v.   Stewart,  71  Pa.  170. 

In  the  Civil  Law. 

Civil  Actions. — Those  personal  actions 
which  are  instituted  to  compel  payments  or 
do  some  other  thine;  purely  civil.  Pothier, 
In  trod.  Gen.  aux  Coutumcs  110. 

Criminal  Actions. — Those  personal  actions 
in  which  the  plaintiff  asks  reparation  for  the 
commission  of  some  tort  or  injury  which  he 
or  those  who  belong  to  him  have  sustained. 

Mixed  Actions  are  those  which  partake  of 
the  nature  of  both  real  and  personal  actions  ; 
as,  actions  of  partition,  actions  to  recover 
property  and  damages.  Just.  Inst.  4,  6,  18- 
20;  Domat,  Supp.  des  Lois  Civiles  liv.  4,  tit. 
1,  n.  4. 

Mixed  Personal  Actions  are  those  which 
partake  of  both  a  civil  and  a  criminal  char- 
acter. 

Personal  Actions  are  those  in  which  one 
person  {actor)  sues  another  as  defendant 
(reus)  in  respect  of  some  obligation  which 
he  is  under  to  the  actor,  either  ex  contractu 
or  ex  delicto,  to  perform  some  act  or  make 
some  compensation. 

Real  Actions. — Those  by  which  a  person 
seeks  to  recover  his  property  which  is  in 
the  possession  of  another. 

In  the  Common   Law. 

The  action  properly  is  said  to  terminate 
at  judgment;  Co.  Litt.  2S9a;  Rolle,  Abr. 
291;  3  Bla.  Com.  116. 

Civil  Actions. — Those  actions  which  have 
for  their  object  the  recovery  of  private  or 
civil  rights,  or  of  compensation  for  their 
infraction. 

Criminal  Actions. — Those  actions  prosecut- 
ed in  a  court  of  justice,  in  the  name  of  the 
government,  against  one  or  more  individuals 
accused  of  a  crime.  See  1  Chitty,  Criin. 
Law. 

Local  Actions. — Those  civil  actions  which 
can  be  brought  only  in  the  county  or  other 
territorial  jurisdiction  in  which  the  cause 
of  action  arose.     See  Local  Action. 

Mixed  Actions. — Those  which  partake  of 
the  nature  of  both  real  and  personal  actions. 

Personal  Actions. — Those  civil  actions 
which  are  brought  for  the  recovery  of  per- 
sonal property,  for  the  enforcement  of  some 
contract,  or  to  recover  damages  for  the  com- 
Bouv.— 9 


mission  of  an  injury  to  the  person  or  prop- 
erty.    See  Personal  Action. 

Real  Actions. — Those  brought  for  the  spe- 
cific recovery  of  lands,  tenements,  or  her- 
editaments.    Steph.  PL  3.     See  Real  A 

Transitory    Actions. —  Those    civil    a< 
the  cause  of  which   might  well  have 
in  one  place  or  county  as  well  as  another. 
See  Transitory  Action. 

ACTION  OF  BOOK  DEBT.  A  form  of 
action  in  Connecticut  and  Vermont  for  the 
recovery  of  claims,  such  as  are  usual* 
denced  by  a  book  account  Bradley  v.  Good- 
year,  1  Day  (Conn.)  105;  Smith  v.  Gilbert, 
4  Day  (Conn.)  105;  Newton  v.  Biggins,  2 
Vt.  366. 

ACTION  ON  THE  CASE.  This  v 
remedy  given  by  the  common  law,  but  it  ap- 
pears to  have  existed  only  in  a  limited  form 
and  to  a  certain  extent  until  the  statute  of 
Westminster  2d.  In  its  most  comprehensive 
signification  it  includes  assumpsit  as  well  as 
an  action  in  form  ex  delicto;  at  pr 
when  it  is  mentioned  it  is  usually  understood 
to  mean  an  action  in  form  ex  delicto. 

It  is  founded  on  the  common  law  or  upon 
acts  of  Parliament,  and  lies  generally  to  re- 
cover damages  for  torts  not  committed  with 
force,  actual  or  implied ;  or  having  been  oc- 
casioned by  force  where  the  matter  aft* 
was  not  tangible,  or  the  injury  was  not  im- 
mediate but  consequential ;  or  where  the  in- 
terest in  the  property  was  only  in  reversion, 
in  all  of  which  cases  trespass  is  not  sustain- 
able ;  1  Chit  PI.  132.     See  Case  ;  Assumpsit. 


ACTION     REDHIBITORY. 

tort  Action. 


See    IU'Mur.i- 


ACTI0N    RESCISSORY.    See    Rescissory 

Actions. 

ACTIONABLE.  For  which  an  action  will 
lie.    3  Bla.  Com.  23. 

ACTI0NARY.  A  commercial  term  used  in 
Europe  to  denote  a  proprietor  of  shares  or 
actions  in  a  joint  stock  company. 

ACTI0NES  N0MINAT/E  (Lat  named  ac- 
tions) . 

In  English  Law.  Those  writs  for  which 
there  were  precedents  in  the  English  Chan- 
cery prior  to  the  statute  13  Edw.  I.  (Westm. 
2d)   c.  34. 

Prior  to  this  statute,  the  clerks  would  is- 
sue no  writs  except  in  such  actions.  Steph. 
PI.  8;  Barnet  v.  Ihrie,  17  S.  &  R.  (Pa.)  195. 
See  Case  ;  Action. 

ACTIONS     (Fr.).      Shares     of    corporate 

stock. 

ACTIONS  ORDINARY.  In  Scotch  Law. 
All  actions  which  are  not  rescissory.  Ersk. 
Inst  4,  1,  18. 

ACTIVE   TRUST.     See  Trust. 

ACTON  BURNELL.  An  ancient  English 
statute,  so  called  because  enacted  by  a  par- 


ACTON  BURNELL 


130 


ACTUAL 


liament  held  at  the  village  of  Acton  Burnell. 
11  Edw.  I. 

It  is  otherwise  known  as  statutum  tnercatorum  or 
de  mercatoribus,  the  statute  of  the  merchants.  It 
was  a  statute  for  the  collection  of  debts,  the  earliest 
of  its  class,  being  enacted  in  1283. 

A  further  statute  for  the  same  object,  and  known 
as  De  Mercatoribus,  was  enacted  13  Edw.  I.  (c.  3.). 
See  Statutk   Merchant. 

ACTOR  (Lat  agcrc).  In  Civil  Law.  A 
patron,  pleader,  or  advocate.  Du  Cange; 
Cowell ;  Spelnian. 

Actor  ecclesiae.—  An  advocate  for  a  church ;  one 
who  protects  the  temporal  interests  of  a  church. 
Actor  villce  was  the  steward  or  head-bailiff  of  a 
town  or  village.     Cowell. 

One  who  takes  care  of  his  lord's  lands. 
Du  Cange. 

A  guardian  or  tutor.  One  who  transacts 
the  business  of  his  lord  or  principal ;  nearly 
synonymous  with  agent,  which  conies  from 
the  same  word. 

The  word  has  a  variety  of  closely-related  mean- 
ings, very  nearly  corresponding  with  manager. 
Thus,  actor  dominai,  manager  of  his  master's  farm; 
actor  ecclesice,  manager  of  church  property  ;  adores 
provincial- urn,  tax-gatherers,  treasurers,  and  man- 
agers of  the  public  debt. 

A  plaintiff;  contrasted  with  reus,  the  de- 
fendant A  proctor  in  civil  courts  or  causes. 
Adores  regis,  those  who  claimed  money  of 
the  king.  Du  Cange,  Actor;  Spelman,  Gloss. ; 
Cowell. 

ACTRIX  (Lat).  A  female  plaintiff.  Cal- 
vinus,  Lex. 

ACTS  OF  COURT.  Legal  memoranda 
made  in  the  admiralty  courts  in  England, 
in  the  nature  of  pleas. 

For  example,  the  English  court  of  admi- 
ralty disregards  all  tenders  except  those 
formally  made  by  acts  of  court;  Abbott 
Shipp.  403;  Dunlop,  Adm.  Pr.  104,  105;  4 
C.  Rob.  Adm.  103;  1  Hagg.  Adm.  157. 

ACTS  OF  SEDERUNT.  In  Scotch  Law. 
Ordinances  for  regulating  the  forms  of  pro- 
ceeding, before  the  court  of  session,  in  the 
administration  of  justice,  made  by  the  judg- 
es, who  have  the  power  by  virtue  of  a  Scotch 
Act  of  Parliament  passed  in  1540.  Erskine, 
Pract  book  1,  tit  1,  §  14. 


ACTUAL.  Real,  in  opposition  to  construc- 
tive or  speculative,  something  "existing  in 
act;"  State  v.  Wells,  31  Conn.  213;  real  as 
opposed  to  nominal ;  Astor  v.  Merritt,  111  U. 
S.  202,  4  Sup.  Ct  413,  28  L  Ed.  401.  Wear- 
ing apparel  "in  actual  use"  is  not  confined  to 
what  is  worn  at  the  time  or  what  has  been 
worn,  but  includes  what  is  set  apart  to  be 
used  as  a  part  of  one's  wardrobe ;  id.,  where 
the  phrase  is  carefully  examined  and  defined. 

It  is  used  as  a  legal  term  in  contradistinc- 
tion to  virtual  or  constructive  as  of  posses- 
sion or  occupation;  Cleveland  v.  Crawford, 
7  Hun  (N.  Y.)  616;  or  an  actual  settler, 
which  implies  actual  residence;  Mclntyre  v. 
Sherwood,  82  Cal.  139,  22  Pac.  937.  An  ac- 
tual    seizure     means     nothing    more     than 


seizure,  since  there  was  no  fiction  of  con- 
structive seizure  before  the  act;  L.  R.  6 
Exch.  203. 

Actually  is  opposed  to  seemingly,  pretend- 
edly,  or  feignedly,  as  actually  engaged  in 
farming  means  really,  truly,  in  fact;  In  re 
Strawbridge  &  Mays,  39  Ala.  367. 

ACTUAL  CASH  VALUE.  The  term  means 
the  sum  of  money  the  insured  goods  would 
have  brought  for  cash,  at  the  market  price, 
at  the  time  when,  and  place  where,  they  were 
destroyed  by  fire.  Mack  v.  Ins.  Co.,  4  Fed. 
59.    See  Insubance. 

ACTUAL  COST.  The  true  and  real  price 
paid  for  goods  upon  a  genuine  bona  fide  pur- 
chase. Alfonso  v.  U.  S.,  2  Sto.  421,  Fed.  Cas. 
No.  188.  Money  actually  paid  out.  Lexing- 
ton &  W.  R.  Co.  v.  R.  Co.,  9  Gray  (Mass.) 
226.  It  is  said  not  to  include  interest  on 
capital  during  construction ;  [1906]  A.  C.  368 ; 
nor  "wasted  expenditure"  such  as  that  on  a 
condemned  culvert,  under  a  government  con- 
tract; 20  S.  C.  133,  416  (South  African). 
Under  a  contract  to  supply  electric  light  to 
a  municipality,  for  which  it  was  to  pay  such 
sum  as  would  yield  a  return  of  10  per  cent, 
on  the  "actual  cost  of  generating  the  light," 
it  was  held  that  this  did  not  include  inter- 
est on  capital,  but  did  include  depreciation 
of  plant  and  rents,  taxes  and  insurance; 
[1908]  A.  C.  241. 

ACTUAL  DAMAGES.  The  damages 
awarded  for  a  loss  or  injury  actually  sus- 
tained; in  contradistinction  from  damages 
implied  by  law,  and  from  those  awarded  by 
way  of  punishment.     See  Damages. 

ACTUAL  DELIVERY.  It  is  held  common- 
ly to  apply  to  the  ceding  of  the  corporal 
possession  by  the  seller,  and  the  actual  ap- 
prehension of  corporal  possession  by  the  buy- 
er, or  by  some  person  authorized  by  him  to 
receive  the  goods  as  his  representative  for 
the  purpose  of  custody  or  disposal,  but  not 
for  mere  conveyance.  Bolin  v.  Huffnagle,  1 
Rawle  (Pa.)   19.     See  Delivery. 

ACTUARIUS  (Lat).  One  who  drew  the 
acts  or  statutes. 

One  who  wrote  in  brief  the  public  acts. 

An  officer  who  had  charge  of  the  public 
baths ;  an  officer  who  received  the  money  for 
the  soldiers,  and  distributed  it  among  them ; 
a  notary. 

An  actor,  which  see.     Du  Cange. 


ACTUARY.  The  manager  of  a  joint  stock 
company,  particularly  an  insurance  company. 

An  officer  of  a  mercantile  or  insurance 
company  skilled  in  financial  calculations,  es- 
pecially respecting  such  subjects  as  the  ex- 
pectancy of  the  duration  of  life. 

A  clerk,  in  some  corporations  vested  with 
various  powers. 

In  Ecclesiastical  Law.  A  clerk  who  regis- 
ters the  acts  and  constitutions  of  the  convo- 
cation. 


ACTUM 


131 


AD  DAMNUM 


ACTUM  (Lat.  agere) .  A  deed;  something 
done. 

Datum  relates  to  the  time  of  the  delivery  of  the 
instrument;  actum,  the  time  of  making  it;  factum, 
the  thing  made.  Gestum,  denotes  a  thing  done 
without  writing;  actum,  a  thing  done  In  writing. 
See  Du  Cange;    Actus. 

ACTUS    (Lat.   agere,  to  do;   actus,  done). 

In  Civil  Law.  A  thing  done.  See  Actum. 
A  servitude  which  carried  the  right  of  driv- 
ing animals  and  vehicles  across  the  lands  of 
another. 

It  included  also  the  iter,  or  right  of  pass- 
ing across  on  foot  or  on  horseback. 

In  English  Law.  An  act  of  parliament  8 
Coke  40. 

A  foot  and  horse  way.     Co.  Litt.  56  a. 

AD  (Lat).  At;  by;  for;  near;  on  ac- 
count of ;  to ;  until ;  upon ;  with  relation  to 
or  concerning. 


ABUNDANTIOREM 

For  greater  caution. 


CAUTELAM 


To  another 


AD 

(Lat) 

AD  ALIUD    EXAMEN    (Lat). 
tribunal.     Calvinus,   Lex. 

AD  ASSISAM  CAPIENDAM.  To  take  an 
assize.     Bract  110  6. 

AD  AUDIENDAM  CONSI  D  E  RATI  ON  EM 
C  U  R I  /E.  To  hear  the  judgment  of  the  court. 
Bract  383  o. 

AD  AUD1ENDUM  ET  DETERM1NAN- 
DUM.  To  hear  and  determine.  4  Bla.  Com. 
278. 

AD  BARRAM  EVOCATUS.  Called  to  the 
bar.    1  Ld.  Raym.  59. 

AD  CAMPI  PARTEM.  For  a  share  of  the 
land.    Fleta,  II,  c.  3G,  §  4. 

AD  CAPIENDAS  ASSISAS.  To  try  writs 
of  assize.     3  Bla.  Com.  352. 

AD  COLLIGENDUM.  For  collecting;  as 
an  administrator  or  trustee  ad  colligendum. 
2  Kent  414. 

AD  COMMUNE  NOCUMENTUM.  To  the 
common  nuisance.     Broom  &  H.  Com.  196. 

AD  COMMUNEM  LEGEM.  At  common 
law.    2  Eden  39. 

AD  COMPARENDUM.  To  appear.  Cro. 
Jac.  67. 

AD    CULPAM.     Until  misbehavior. 

AD  CURIAM.  At  court  1  Salk.  195;  1 
Ld.  Raym.  638. 

AD  CU  ST  AG  I  A.  At  the  costs.  Toullier; 
Cowell;  Whishaw. 

AD  CUSTUM.  At  the  cost  1  Sharsw. 
Bla.  Com.  314. 

AD  DAMNUM  (Lat).  To  the  damage. 
The  technical  name  of  that  part  of  the  dec- 
laration or  statement  of  claim  which  con- 
tains a  statement  of  the  amount  of  the  plain- 
tiff's  injury.     The   plaintiff   cannot    recover 


greater  damages  than  he  has  laid  In  the  ad 
damnum;  2  Greenl.   Kv.  §  260.     T: 
claimed   may    be   amended    by    the  court   on 
motion.    In  Bierce  v.  Waterhouse,  219 
320,  31   Sup.  Ct  241,  55  L.   Ed.  237,   U 
held  that  in  replevin,  the  ad  damnum 
be  increased  to  conform  to  the  proofs  with- 
out discharging  the  sureties. 

AD  DIEM.  At  the  day.  Ad  alium  diem. 
At  another  day.  Y.  B.  7  Hen.  VI,  13.  Ad 
certum  diem.    At  a  certain  day.     2  Str.  747. 

AD  EVERSIONEM  JURIS  NOSTRI.  To 
the  overthrow  of  our  right.     2  Kent  91. 

AD   EXCAMBIUM    (Lat).     For  exchange; 

for   compensation.     Bracton,   fol.   12  6,  37  o. 

AD  EXH/CREDATIONEM.  To  the  dis- 
herison, or  disinheritim'. 

The  writ  of  waste  calls  upon  the  tenant 
to  appear  and  show  cause  why  he  hath  com- 
mitted waste  and  destruction  in  the  place 
named,  ad  exharedationem,  etc.;  3  Bla.  Com. 
228;  Fitzherbert  Nat  Brev.   ",. 

AD   FACIENDUM.     To  do.    Co.  Litt.  204  a. 

AD  FACTUM  PR/ESTANDUM.  In  Scotch 
Law.  The  name  given  to  a  class  of  obliga- 
tions of  great  strictness. 

A  debtor  ad  Jac.  prws.  is  denied  the  benefit 
of  the  act  of  grace,  the  privilege  of  sanctu- 
ary, and  the  cessio  bonorum;  Erskine,  Inst, 
lib.  3,  tit  3,  §  62 ;  Karnes,  Eq.  216. 

AD  FID  EM.  In  allegiance.  2  Kent  56. 
Subjects  borti  in  allegiance  are  said  to  be 
born  ad  fidem. 

AD  FILUM  AQU/E.  To  the  thread  of  the 
stream  ;  to  the  middle  of  the  stream.  Knight 
v.  Wilder,  2  Cush.  (Mass.  i  207,  48  Am.  Dec. 
660;  Child  v.  Starr,  4  Hill  (N.  Y.)  369; 
Claremont  v.  Carlton,  2  N.  II.  309.  9  Am. 
Dec.  88;  2  Washb.  R.  P.   632;   3  Kent  428. 

A  former  meaning  seems  to  have  been,  to 
a  stream  of  water.  Cowell ;  Blount  Ad  me- 
dium filum  aqum  would  be  etymologically 
more  exact ;  2  Eden,  Inj.  260 ;  and  is  often 
used;  but  the  common  use  of  ad  filum  aqu& 
is  undoubtedly  to  the  thread  of  the  stream ; 
Thomas  v.  Hatch,  3  Sumn.  170,  Fed.  Cas.  No. 
13.S99;  Cates'  Ex'rs  v.  Wadlington,  1  Mc- 
Cord  (S.  C.)  580,  10  Am.  Dec.  699;  3  Kent 
431;  Starr  v.  Child,  20  Wend.  (N.  Y.)  149; 
Ingraham  v.  Wilkinson,  4  Pick.  (Mass 
16  Am.  Dec.  342;  State  v.  Canterbury,  28  N. 
H.  195. 

AD  FILUM  Vl/E  (Lat).  To  the  middle 
of  the  way.  Parker  v.  Inhabitants  of  Frarn- 
ingham,  8  Mete.   (Mass.)    200. 

AD    FIRMAM.     To  farm. 

Derived  from  an  old  Saxon  word  denoting  rent, 
according  to  Blackstone,  occurring  in  the  phrase, 
decli  concessi  et  ad  firmam  tradidi  (I  have  given, 
granted,  and  to  farm  let):  2  Bla.  Com.  317.  Ad 
firmam  noctis  was  a  fine  or  penalty  equal  in  amount 
to  the  estimated  cost  of  entertaining  the  king  for 
one  night.  Cowell.  Ad  feodi  firmam,  to  fee  farm. 
Spelman,  Gloss. ;    CowelL 


AD  FUNDANDAM  JURISDICTIONEM      132 


AD  QUiERIMONIAM 


AD       FUNDANDAM       JURISDICTIONEM. 

To  make  the  basis  of  jurisdiction-  [1905]  2 
K.  B.  555. 

AD  GAOLAS  D  ELIBERAND  AS.  To  de- 
liver the  gaols.     Bract.  109  b. 

AD    HOC.     As  to  this. 

AD   IDEM.    To  the  same  point 

AD  INQUIRENDUM  (Lat.  for  inquiry). 
A  judicial  writ,  commanding  inquiry  to  be 
made  of  anything  relating  to  a  cause  de- 
pending in  court. 

AD  INSTANT  I  AM.  At  the  instance.  2 
Mod.  43. 

AD    INTERIM    (Lat).     In  the  meantime. 

An  officer  Is  sometimes  appointed  ad  interim,  when 
the  principal  officer  is  absent,  or  for  some  cause 
Incapable   of  acting  for  the  time.     See  Acting. 

AD  JURA  REGIS  (Lat).  To  the  rights 
of  the  king.  An  old  English  writ  to  enforce 
a  presentation  by  the  king  to  a  living  against 
one  who  sought  to  eject  the  clerk  presented. 

AD  LARGUM.  At  large:  as,  title  at 
large;  assize  at  large.  See  Dane,  Abr.  a 
144,  art  16,  §  7. 

AD  LIBITUM.  At  pleasure.  3  Bla.  Com. 
292. 

AD    LITEM    (Lat.  lites).     For  the  suit 

Every  court  has  the  power  to  appoint  a  guardian 
ad  litem;    2  Kent  229;    2  Bla.  Com.  427. 

AD  LUCRANDUM  VEL  PERDENDUM. 

For  gain  or  loss. 

AD  MAJOREM  CAUTELAM  (Lat).  For 
greater  caution. 

AD  MEDIUM  FILUM  AQU/E.  See  Ad 
Felum  Aqtj.e.  ' 

AD  NOCUMENTUM  (Lat).  To  the  hurt 
or  injury. 

In  an  assize  of  nuisance,  it  must  be  al- 
leged by  the  plaintiff  that  a  particular  thing 
has  been  done,  ad  nocumentum  liberi  tene- 
menti  sui  (to  the  injury  of  his  freehold)  ;  3 
Bla.  Com.  221. 


AD  OMISSA  VEL  MALE  APPRETIATA. 

With  relation  to  omissions  or  wrong  inter- 
pretations.    3  Ersk.  Inst.  9,  §  36. 

AD  OPUS.  To  the  work.  See  21  Harv.  L. 
Rev.  264,  citing  2  Poll  &  Haiti.  232  et  seq.; 
Use. 

AD  OSTIUM  ECCLESI/E  (Lat).  At  the 
church-door. 

One  of  the  five  species  of  dower  formerly 
recognized  at  the  common  law.  1  Washb. 
R.  P.  149 ;  2  Bla.  Com.  132.  It  was  in  com- 
mon use  in  the  time  of  Glanville.  Glanv. 
lib.  6,  c.  1 ;  4  Kent  36.     See  Doweb. 

AD    PIOS    USUS.     To    religious   purposes. 

AD  PROSEQUENDAM.  To  prosecute.  11 
Mod.  362. 

AD  PUNCTUM  TEMPORIS.  At  the  point 
of  time.     Sto.  Baihn.  §  263. 


AD     QU/ERIMONIAM.     On    complaint    of. 

AD    QUEM    (Lat).     To  which. 

The  correlative  term  to  a  quo,  used  in  the 
computation  of  time,  definition  of  a  risk, 
etc.,  denoting  the  end  of  the  period  or  jour- 
ney. 

The  terminus  a  quo  Is  the  point  of  beginning  or 
departure  ;  the  terminus  ad  quern,  the  end  of  the 
period  or  point  of  arrival. 

AD  QUOD  DAMNUM  (Lat).  What  in- 
Jury.  .    . 

A  writ  issuing  out  of  and  returnable  into 
chancery,  directed  to  the  sheriff,  command- 
ing him  to  inquire  by  a  jury  what  damage 
it  will  be  to  the  king,  or  any  other,  to  grant 
a  liberty,  fair,  market,  highway,  or  the  like. 
The  name  is  derived  from  the  characteristic  words 
denoting  the  nature  of  the  writ,  to  inquire  how 
great  an  injury  it  will  be  to  the  king  to  grant  the 
favor  asked;  Whishaw,  Fitzherbert,  Nat.  Brev.  221; 
Termes  de  la  Ley. 

AD  RATIONEM  PONERE.  To  cite  a  per- 
son to  appear. 

AD  RECTUM  (L.  Lat).  To  right.  To  do 
right.  To  meet  an  accusation.  To  answer 
the  demands  of  the  law.  Eabeant  cos  ad 
rectum.  They  shall  render  themselves  to 
answer  the  law,  or  to  make  satisfaction. 
Bract,  fol.  124  6. 

AD  RESPONDENDUM.  To  make  answer. 
Fleta,  lib.  II,  c.  65.  It  is  used  in  certain 
writs  to  bring  a  person  before  the  court  in 
order  to  make  answer,  as  in  habeas  corpu* 
ad  respondendum  or  capias  ad  responden- 
dum. 

AD  SATISFACIENDUM.  To  satisfy.  It 
is  used  in  the  writ  capias,  ad  satisfaciendum 
and  is  an  order  to  the  sheriff  to  take  the 
person  of  the  defendant  to  satisfy  the  claims 
of  the  plaintiff. 

AD   SECTAM.     At  the  suit  of. 

It  is  commonly  abbreviated.  It  is  used  where  it 
is  desirable  to  put  the  name  of  the  defendant  first, 
as  in  some  cases  where  the  defendant  is  filing  his 
papers;  thus,  Roe  ads.  Doe,  where  Doe  is  plaintiff 
and  Roe  defendant.  It  is  found  in  the  indexes  to 
cases  decided  in  some  of  our  older  American  books 
of  reports,  but  has  become  pretty  much  disused. 


AD      TERMINUM      QUI      PR/ETERIT.     A 

writ  of  entry  which  formerly  lay  for  the  les- 
sor or  his  heirs  when  a  lease  had  been  made 
of  lands  and  tenements  for  a  term  of  life  or 
years,  and,  after  the  term  had  expired,  the 
lands  were  withheld  from  the  lessor  by  the 
tenant  or  other  person  possessing  the  same. 
Fitzherb.  Nat.  Brev.  201. 

AD  TUNC  ET  IBIDEM.  The  technical 
name  of  that  part  of  an  indictment  contain- 
ing the  statement  of  the  subject-matter  "then 
and  there  being  found."  Bacon,  Abr.  Indict- 
ment, G.  4 ;  1  No.  C.  93. 

In  an  indictment,  the  allegation  of  time  and  place 
must  be  repeated  in  the  averment  of  every  distinct 
material  fact ;  but  after  the  day,  year,  and  place 
have  once  been  stated  with  certainty,  it  is  after- 
wards, in  subsequent  allegations,  sufficient  to  refer 
to  them  by  the  words  et  ad  tunc  et  ibidem,  and  the 
effect  of  these  words  is  equivalent  to  an  actual  rep- 


AD  TUNC  ET  IBIDEM 


133 


ADDITION 


ctitlon  of  the  time  and  place.  The  ad  tunc  et  ibi- 
dem must  be  added  to  every  material  fact  in  an  in- 
dictment ;  Saund.  95.  Thus,  an  indictment  which 
alleged  that  J.  S.  at  a  certain  time  and  place  made 
an  assault  upon  J.  N.,  et  eum  cum  yladio  felonice 
percussit,  was  held  bad,  because  it  was  not  said,  ad 
tunc  et  ibidem  percussit ;  Dy.  68,  69.  And  where, 
In  an  indictment  for  murder,  It  was  stated  that  J. 
S.  at  a  certain  time  and  place,  having  a  sword  In 
his  right  hand,  percussit  J.  N.,  without  saying  ad 
tunc  et  ibidem  percussit,  it  was  held  insufficient; 
for  the  time  and  place  laid  related  to  the  having  the 
sword,  and  consequently  it  was  not  said  when  or 
where  the  stroke  was  given;  Cro.  Eliz.  738;  2  Hale, 
PI.  Cr.  178.  And  where  the  indictment  charged  that 
A.  B.  at  N.,  in  the  county  aforesaid,  made  an  as- 
sault upon  C.  D.  of  F.  in  the  county  aforesaid,  and 
him  ad  tunc  et  ibidem  quodam  gladio  percussit,  this 
indictment  was  held  to  be  bad,  because  two  places 
being  named  before,  if  it  referred  to  both,  it  was 
impossible ;  if  only  to  one,  it  must  be  to  the  last, 
and  then  it  was  insensible  ;    2  Hale,   PI.  Cr.  §  180. 

AD  ULTIMAM  VIM  TERMINORUM.  To 
the  most  extended  import  of  the  term.  2 
Eden  39. 

AD  VALOREM  (Lat).  According  to  the 
valuation. 

Duties  may  be  specific  or  ad  valorem.  Ad  valorem 
duties  are  always  estimated  at  a  certain  per  cent, 
on  the  valuation  of  the  property;  3  U.  S.  Stat.  L. 
732  ;    Bailey  v.  Fuqua,  24  Miss.  50L 

AD  VITAM  AUT  CULPAM.  For  life  or 
until  misbehavior. 

Words  descriptive  of  a  tenure  of  office 
"for  life  or  good  behavior,"  equivalent  to 
quamdiu  bene  se  gesserit. 

ADD.  To  unite;  attach;  annex;  join. 
Board  of  Com'rs  of  Hancock  County  v.  State, 
119  Ind.  473,  22  N.  E.  TO. 

ADDICERE     (Lat).      In    Civil     Law.      To 

condemn.     Calvinus,   Lex. 

Addictio  denotes  a  transfer  of  the  goods  of  a  de- 
ceased debtor  to  one  who  assumes  his  liabilities; 
Calvinus,  Lex.  Also  used  of  an  assignment  of  the 
person  of  the  debtor  to  the  successful  party  in  a 
suit. 

ADDITION    (Lat.   additio,  an  adding  to). 

Whatever  is  added  to  a  man's  name  by 
way  of  title  or  description,  as  additions  of 
mystery,  place,  or  degree.  Cowell ;  Termes 
de  la  Ley;  10  Wentw.  PI.  371;  Salk.  5;  2 
Ld.  Raym.  9S8;  1  Wils.  244. 

Additions  of  estate  are  esquire,  gentleman, 
and  the  like. 

These  titles  can  be  claimed  by  none,  and  may  be 
assumed  by  any  one.  In  Nash  v.  Battersby  (2  Ld. 
Raym.  986;  6  Mod.  80),  the  plaintiff  declared  with 
the  addition  of  gentleman.  The  defendant  pleaded 
in  abatement  that  the  plaintiff  was  no  gentleman. 
The  plaintiff  demurrer,  and  it  was  held  ill  ;  for, 
Baid  the  court,  it  amounts  to  a  confession  that  the 
plaintiff  is  no  gentleman,  and  then  not  the  person 
named  in  the  count.  He  should  have  replied  that 
he  is  a  gentleman. 

Additions  of  mystery  are  such  as  scrivener, 
painter,   printer,   manufacturer,  etc. 

Additions  of  place  are  deseriiitinns  by  the 
place  of  residence,  as  A.  B.  of  Philadelphia, 
and  the  like.  See  Bacon,  Abr.  Addition; 
Doctr.  Plac.  71;  2  Viner,  Abr.  77;  1  Lilly, 
Reg.  39;  Com.  v.  Lewis.  1  Mete.  (Mass.)   151. 

The  statute  of  additions  extends  only  to 


the  party  indicted.  An  indictment,  there- 
fore, need  not  describe,  by  any  additi ■■•  the 
person  upon  whom  the  offence  the  re  i  a  set 
forth  is  alleged  to  have  been  committed ;  2 
Leach,  Cr.  Cas.  (4th  ed.)  8G1 ;  Com.  \ 
ney,  10  Cush.  (Mass.)  402.  And  if  an  addi- 
tion is  stated,  it  need  not  be  proved  ;  1  Leach, 
Cr.  Cas.  (4th  ed.)  547;  2  Carr.  &  1 
But  where  a  defendant  was  indicted  for 
marrying  E.  C,  "widow,"  his  first  wife  be- 
ing alive,  it  was  held  that  the  addition  was 
material;  1  Mood.  Cr.  Cas.  303;  4  C.  &  P. 
579.  At  common  law  there  was  no  need  of 
addition  in  any  case;  2  Ld.  Raym.  988;  it 
was  required  only  by  stat  1  Hen.  V.  c.  5, 
in  cases  where  process  of  outlawry  lies.  In 
all  other  cases  it  is  only  a  description  of  the 
person,  and  common  reputation  is  sufficient; 
2  Ld.  Raym.  849.  No  addition  is  necessary 
in  a  Eomine  Replegiando  ;  2  Ld.  Raym.  987; 
Salk.  5;  1  Wils.  244,  245;  6  Co.  67.  See 
Woman. 

Addition  in  the  law  of  mechanics'  liens. 
An  addition  erected  to  a  former  building  to 
constitute  a  building  within  the  meaning  of 
the  mechanics'  lien  law  must  be  a  lateral 
addition.  It  must  occupy  ground  without 
the  limits  of  the  building  to  which  it  con- 
stitutes an  addition ;  so  that  the  lien  shall 
be  upon  the  building  formed  by  the  addition, 
and  not  the  land  upon  which  it  stands.  An 
alteration  in  a  former  building  by  adding 
to  its  height,  or  its  depth,  or  to  the  extent 
of  its  interior  accommodations,  is  an  altera- 
tion merely,  and  not  an  addition ;  Updike  v. 
Skillman,  27  N.  J.  L.  132.  See  Lien  ;  Acces- 
sion. 

In  addition  to  means  not  exclusive  of.  but 
by  way  of  increase  or  accession  to.  In  re 
Daggett's  Estate,  9  N.  Y.  Supp.  652. 

In  French  Law.  A  supplementary  process 
to  obtain  additional  information;  Guyot,  /,v- 
pert. 

ADDITIONAL.  This  term  embraces  the 
idea  of  joining  or  uniting  one  thing  to  an- 
other, so  as  thereby  to  form  one  aggregate. 
We  add  by  bringing  things  together;  State 
v.  Hull,  53  Miss.  626,  645. 

ADDITIONAL  BURDEN.  See  Eminent 
Domain. 

ADDITIONALES.  Additional  terms  or 
propositions  to  be  added  to  a  former  agree- 
ment. 

ADDLED  PARLIAMENT.  The  parliament 
which  met  in  1614  was  so  called.  It  sat  for 
but  two  months  and  none  of  its  bills  received 
the  royal  assent.     Taylor,   Jurispr.  359. 

ADDRESS.  That  part  of  a  bill  in  equity 
which  contains  the  appropriate  description 
of  the  court  where  the  plaintiff  seeks  his 
remedy.  Cooper,  Kq.  Tlead.  S;  Story,  Eq. 
Plead.  §  26;  Van  Heyth.  Eq.  Draft  2. 

In  Legislation.  A  formal  request  address- 
ed to  the  executive  by  one  or  both  branches 


ADDRESS 


134 


ADEMPTION 


of   the  legislative    body,    requesting  him   to 
I  jrform   some  act 

It  is  provided  as  a  means  for  the  removal  of  judg- 
es who  are  deemed  unworthy  longer  to  occupy  their 
situations,  although  the  causes  of  removal  are  not 
such  as  would  warrant  an  impeachment.  It  is  not 
provided  for  in  the  Constitution  of  the  United 
States ;  and  even  in  those  states  where  the  right 
exists  it  is  exercised  but  seldom,  and  generally  with 
great  unwillingness. 

ADDRESS  TO  THE  CROWN.  When  the 
royal  speech  has  been  read  in  Parliament, 
an  address  in  answer  thereto  is  moved  in 
both  houses.  Two  members  are  selected  in 
each  house  by  the  administration  for  moving 
and  seconding  tbe  address.  Since  the  com- 
mencement of  the  session  1890-1891,  it  has 
been  a  single  Resolution  expressing  their 
thanks  to  the  sovereign  for  his  gracious 
speech. 

ADELANTADO.  In  Spanish  Law.  The 
military  and  political  governor  of  a  frontier 
province.  This  office  has  long  since  been 
abolished. 

ADEMPTION  (Lat.  ademptio,  a  taking 
away).  The  extinction  or  withholding  of  a 
legacy  in  consequence  of  some  act  of  the  tes- 
tator which,  though  not  directly  a  revoca- 
tion of  tbe  bequest,  is  considered  in  law  as 
equivalent  thereto,  or  indicative  of  an  inten- 
tion to  revoke. 

It  is  a  distinction  between  the  revocation 
of  a  will  and  the  ademption  of  a  legacy  that 
the  former  cannot  be  done  wholly  or  partly 
by  words,  but  parol  evidence  is  admissible  to 
establish  the  latter ;  2  Tayl.  Ev.  §  1146  ;  and 
it  may  also  be  rebutted  by  parol;   id.  §  1227. 

The  question  of  ademption  of  a  general  leg- 
acy depends  entirely  upon  the  intention  of 
the  testator,  as  inferred  from  his  acts  under 
the  rules  established  in  law ;  Cowles  v. 
Cowles,  56  Conn.  240,  13  Atl.  414;  Richards 
v.  Humphreys,  15  Pick.  (Mass.)  133.  Where 
the  relations  of  the  parties  are  such  that  the 
legacy  is,  in  law,  considered  as  a  portion,  an 
advancement  during  the  life  of  the  testator 
will  be  presumed  an  ademption,  at  least, 
to  the  extent  of  the  amount  advanced ;  5  M. 
&  C.  29 ;  3.  Hare  509 ;  Roberts  v.  Weather- 
ford,  10  Ala.  72;  Moore  v.  Hilton,  12  Leigh 
(Va.)  1;  Hansbrough's  Ex'rs  v.  Hooe,  12 
Leigh  (Va.)  316,  37  Am.  Dec.  659;  Carmichael 
v.  Latbrop,  108  Mich.  473,  66  N.  W.  350,  32 
L.  R.  A.  232 ;  and  see  3  C.  &  F.  154 ;  18  Ves. 
151,  but  this  presumption  may  be  rebutted ; 
Jones  v.  Mason,  5  Rand.  (Va.)  577,  16  Am. 
Dec.  761 ;  and  to  raise  the  presumption,  the 
donor  must  put  himself  in  loco  parentis;  2 
Bro.  C.  C.  499.  There  is  no  ademption  where 
the  advancement  and  portion  are  not  ejus- 
d<em  generis;  1  Bro.  C.  C.  555;  or  where 
the  advancement  is  contingent  and  the 
portion  certain;  2  Atk.  493;  3  M.  &  C. 
374 ;  or  where  the  advancement  is  expressed 
to  be  in  lieu  of,  or  compensation  for,  an  in- 
terest ;  1  Ves.  Jr.  257 ;  or  where  the  bequest 
is  of  uncertain  amount;   15  Ves.  513;   4  Bro. 


C.  C.  494;  but  see  2  H.  L.  Cas.  131;  or 
where  the  legacy  is  absolute  and  the  advance- 
ment for  life  merely ;  2  Ves.  38 ;  7  Ves.  516; 
or  where  the  devise  is  of  real  estate;  3 
Y.  &  C.  397;  but  in  the  Virginia  case  above 
cited  the  doctrine  was  held  to  apply  as  well 
to  devises  of  realty  as  to  bequests  of  per- 
sonalty; Hansbrough's  Ex'rs  v.  Hooe,  12 
Leigh  (Va.)  316,  37  Am.  Dec.  659.  See  Mar- 
shall v.  Rench,  3  Del.  Ch.  239,  where  Bates, 
C,   treats   this   subject  in   an   able  opinion. 

It  was  treated  as  a  settled  rule  in  5  Ves. 
79,  and  in  1  Cox  1S7,  that  a  residuary  be- 
quest to  wife  or  children  is  never  adeemed 
by  an  advancement,  not  being  the  gift  of  a 
portion ;  but  in  some  cases  there  has  been 
a  tendency  to  qualify  this  doctrine,  as  also 
that  of  requiring  the  advancement  and  the 
legacy  to  be  ejusdem  generis,  as  above  stated, 
and  as  bearing  upon  one  or  both  of  these 
points  these  cases  should  be  consulted ;  10 
Ves.  1;  15  id.  507;  2  Bro.  C.  C.  394 ;  Car- 
michael v.  Lathrop,  108  Mich.  473,  66  N.  W. 
350,  32  L.  R.WA  232;  and  see  10  Harv.  L. 
Rev.  52.  The  doctrine  will  not  be  applied  to 
a  gift  of  residue  to  an  adopted  child  and  a 
stranger  jointly;  [1906]  2  Ch.  230;  L.  R.  7 
Ch.  App.  670.  See  note  on  these  cases  in 
20  Harv.  L.  Rev.  72. 

Where  deposits  are  made  in  a  bank  by  a 
father  for  the  use  of  his  daughter  and  in 
her  name  and  the  passbook  is  delivered  to 
her,  it  will  not  work  an  ademption  of  a 
pecuniary  legacy,  although  deposits  are  made 
partly  after  the  execution  of  the  will ;  In  re 
Crawford,  113  N.  Y.  560,  21  N.  E.  692,  5  L. 
R.  A.  71. 

But  where  the  testator  was  not  a  parent 
of  the  legatee,  nor  standing  in  loco  parentis, 
the  legacy  is  not  to  be  held  a  portion,  but  a 
bounty,  and  the  rule  as  to  ademption  does 
not  apply;  2  Hare  424;  2  Story,  Eq.  Jur.  § 
1117;  Wms.  Exrs.  1338;  except  where  there 
is  a  bequest  for  a  particular  purpose  and 
money  is  advanced  by  the  testator  for  the 
same  purpose;  2  Bro.  C.  C.  166;  1  Ball  &  B. 
303;  see  6  Sim.  528;  3  M.  &  C.  359;  2  P. 
Wms.  140;  1  Pars.  Eq.  Cas.  139;  Richards 
v.  Humphreys,  15  Pick.  (Mass.)  133;  a  legacy 
of  a  sum  of  money  to  be  received  in  lieu  of 
an  interest  in  a  homestead  is  satisfied  by 
money  amounting  to  the  legacy  during  tes- 
tator's lifetime;  Roquet  v.  Eldridge,  118  Ind. 
147,  20  N.  E.  733. 

The  ademption  of  a  specific  legacy  is  effect- 
ed by  the  extinction  of  the  thing  or  fund,  as 
it  is  generally  stated,  without  regard  to  the 
testator's  intention  ;  3  Bro.  C.  C.  432  ;  2  Cox, 
Ch.  182;  Blackstone  v.  Blackstone,  3  Watts 
(Pa.)  338,  27  Am.  Dec.  359 ;  and  see  White  v. 
Winchester,  6  Pick.  (Mass.)  48;  Richards  v. 
Humphreys,  15  Pick.  (Mass.)  133;  Stout  v. 
Hart,  7  N.  J.  L.  414;  Bell's  Estate,  8  Pa.  Co. 
Ct.  454 ;  but  not  where  the  extinction  of  the 
specific  thing  is  by  act  of  law  and  a  new 
thing  takes  its  place  ;  Ambl.  59  ;  9  Hare  666  ; 
Cas.  temp.  Talbot  226;    Walton  v.  Walton, 


ADEMPTION 


135 


ADEMPTION 


7  Johns.  Ch.  258,  11  Am.  Dec.  456 ;  but  see  i 
4  C.  P.  D.  336;  Kay  &  J.  341;  [1906]  2  Ch.  ! 
4S0 ;  and  note  thereon  in  20  Harv.  L.  Rev. 
239.  The  last  cited  case  is  rather  a  departure 
from  the  rule  of  the  cases  cited  supra  as  to 
extinction  of  the  legacy  by  act  of  law  which 
does  not  rest  on  intention,  but  see  Mahoney  v. 
Holt,  19  R.  I.  660,  36  Atl.  1,  where  the  sup- 
posed intention  of  the  testator  was  held 
to  require  the  substitution  of  a  money  equiv- 
alent for  certain  stock  bequeathed.  Where 
a  breach  of  trust  has  been  committed  or  any 
trick  or  device  practised  with  a  view  to  de- 
feat the  specific  legacy;  8  Sim.  171;  or 
where  the  fund  remains  the  same  in  sub- 1 
stance,  with  some  unimportant  alterations; 
1  Cox,  Ch.  427 ;  3  Bro.  C.  C.  416 ;  3  M.  &  K. 
296 ;  Havens  v.  Havens,  1  Sandf.  Ch.  (N.  Y.) 
334 ;  Ford  v.  Ford,  23  N.  H.  212 ;  as  a  lease 
of  ground  rent  for  99  years  after  a  devise  of 
it;  Eberhardt  v.  Perolin,  49  N.  J.  Eq. ' 
57.0,  25  Atl.  511;  or  where  the  testator 
lends  the  fund  on  condition  of  its  being  re- 
placed; 2  Bro.  C.  C.  113.  A  devise  of  a  lease- 
hold estate  is  adeemed  if  the  lease  expire 
and  is  renewed;  1  Bro.  C.  C.  261;  2  Ves. 
418 ;  16  Ves.  197;  2  Atk.  593 ;  or  where  it  is 
assigned  upon,  other  trusts;  22  Beav.  223; 
but  a  bequest  of  an  interest  in  profits  of  a  { 
firm  is  not  lost  by  the  expiration  and  renewal 
of  the  partnership  agreement ;  Amb.  260.  A 
specific  legacy  is  not  adeemed  by  a  pledge  of 
the  subject;  3  Bro.  C.  C.  108;  3  Myl.  &  K. 
358 ;  but  the  legatee  is  entitled  to  have  it 
redeemed ;  id.  A  specific  legacy  of  a  debt 
due  testator  from  a  third  party  is  adeemed 
by  its  payment;  2  P.  Wins.  328 ;  3  Bro.  C.  C. 
431;  2  id.  108;  2  Cox  C.  C.  ISO;  Ludlam's 
Estate,  1  Pars.  Eq.  (Pa.)  116 ;  or  partially  to 
the  extent  of  part  payment ;  Gardner  v. 
Printup,  2  Barb.  (N.  Y.)  83 ;  but  not  by  sub- 
stitution of  a  new  security  or  a  change  in  its 
form;  Ford  v.  Ford,  23  N.  H.  212;  New 
Hampshire  Bank  v.  Willard,  10  N.  H.  210; 
Dunham  v.  Dey,  15  Johns.  (N.  Y.)  555,  8  Am. 
Dec.  282.  But  courts  have  been  astute  to 
construe  a  legacy  to  be  demonstrative,  if 
possible,  to  avoid  an  ademption ;  Walton  v. 
Walton,  7  Johns.  Ch.  (N.  Y.)  258,  11  Am.  Dec. 
456.  See  infra,  subhead  Demonstrative  Leg- 
acies. 

But  when  a  mortgage  specifically  bequeath- 
ed was  foreclosed  and  a  new  bond  and 
mortgage  taken  from  the  purchaser,  and  a 
memorandum  was  found  after  testator's 
death  in  his  handwriting  to  the  effect  that 
it  was  but  a  renewal  of  the  old  bond  and 
that  it  was  his  intention  that  it  should  pass 
to  the  legatee,  there  was  held  an  ademption ; 
Beck  v.  McGillis,  9  Barb.  (N.  Y.)  35.  In  this 
case  the  hardship  and  defeat  of  intention 
was  admitted,  but  it  was  considered  that  the 
rule  could  not  be  relaxed  that  if  the  subject 
of  a  specific  legacy  did  not  exist  at  the  death 
of  the  testator  it  was  adeemed  and  nothing 
else  could  be  substituted. 


A  legacy  of  stock  is  adeemed  by  its  sale 
though    testator    purchased    back    an        ual 
amount  of  similar  but  not  identical 
ties ;    1  Myl.  &  K.  12. 

The  removal  of  goods  from  a  place  named 
in  the  legacy  will  work  an  ademption ;  1  Bro. 
C.  C.  129,  n. ;  3  Madd.  276 ;  21  Beav.  548 ; 
contra,  27  Beav.  138 ;  and  it  makes  no  differ- 
ence if  the  removal  was  because  a  lease  had 
expired  ;  6  Sim.  19.  Ademption  is  not  worked 
by  a  mere  temporary  or  accidental  removal ; 
4  Bro.  C.  C.  537 ;  or  for  repairs ;  2  De  G.  & 
Sm.  425 ;  or  "for  a  necessary  purpose,"  or  on 
account  of  fire ;   1  Ves.  271. 

In  the  case  of  demonstrative  legacies,  to  be 
paid  out  of  a  particular  fund  pointed  out, 
there  is  no  ademption,  and  if  the  fund  does 
not  exist,  they  are  payable  from  the  general 
assets ;  Armstrong's  Appeal,  63  Pa.  312 ;  Gid- 
dings  v.  Seward,  16  N.  Y.  365 ;  4  Hare.  276 ; 
1  P.  Wms.  777 ;  Walton  v.  Walton,  7  Johns. 
Ch.  (N.  Y.)  258,  11  Am.  Dec.  456;  T.  Raym. 
335;  2  Bro.  C.  C.  114;  Kenaday  v.  Sinnott, 
179  U.  S.  606,  21  Sup.  Ct.  233,  45  L.  Ed.  339 ; 
Ives  v.  Canby,  48  Fed.  718;  Gelbach  v.  Shive- 
ly,  67  Md.  498,  10  Atl.  247.  The  statement 
that  the  testator's  intention  has  no  bearing 
on  the  question  of  the  ademption  of  specific 
legacies,  made  in  2  Cox  180,  has  been  so  fre- 
quently repeated  as  to  be  commonly  accepted 
as  a  rule  of  decision ;  but,  as  remarked  by 
Chancellor  Kent  in  Walton  v.  Walton,  7 
Johns.  Ch.  (N.  Y.)  258,  these  words  are  to  be 
taken  with  considerable  qualification.  It  is 
certainly  true  that  when  it  is  necessary  to  la- 
bel the  legacy  as  general  or  specific,  which  is 
necessarily  done  in  the  case  of  demonstrative 
legacies,  the  question  of  intention  is  material 
and  in  2  Ves.  Jr.  639,  Lord  Loughborough 
makes  the  matter  of  intention  the  criterion, 
and  there  are  few  cases  in  which  it  is  not 
discussed.  In  Kenaday  v.  Sinnott.  179  U.  S. 
606,  21  Sup.  Ct  233,  45  L.  Ed.  339,  it  was 
said  that  "the  ademption  of  a  specific  l< 
is  effected  by  the  extinction  of  the  thing  or 
fund  bequeathed,  and  the  intention  that  the 
legacy  should  fail  is  presumed" ;  but  there  a 
legacy  to  the  wife  of  deposits  in  a  bank 
"amounting  to  $10,000  more  or  less"  was  held 
not  adeemed  by  purchasing  bonds  after  the 
will  was  made,  reducing  the  amount  in  bank, 
and  the  wife  was  awarded  the  amount  of  the 
legacy,  which  was  held  to  be  demonstrative 
upon  the  "manifest  general  intention  of  the 
testator"  as  shown  by  the  whole  will. 

The  courts  lean  against  holding  that  there 
is  an  ademption  unless  the  intention  is  clear- 
ly shown,  and,  to  avoid  it,  favor  the  construc- 
tion of  a  legacy  as  demonstrative  rather  than 
specific;  Norris  v.  Thomson's  Ex'rs,  16  N. 
J.  Eq.  218 ;  Cogdell's  Ex'rs  v.  Cogdell's  Heirs, 
3  Desaus.  (S.  C.)  373 ;  In  re  Foote,  22  Pick. 
(Mass.)  302;  Bradford  v.  Haynes,  20  Me. 
105;  Boardman  v.  Boardman,  4  Allen  (Mass.) 
179;  8  Ves.  413;  Appeal  of  Balliet,  14  Pa. 
461.    See  11  Am.  Dec.  470,  note. 


ADEMPTION 


136 


ADITUS 


Republication  of  a  will  may  prevent  the 
effect  of  what  would  otherwise  work  an 
ademption:    1  Rop.  Leg.  351. 

A  specific  legacy  which  has  been  adeemed 
will  not  be  revived  by  a  republication  of  the 
will  after  the  ademption;  Trustees  of  Uni- 
tarian Society  in  Harvard  v.  Tufts,  151  Mass. 
76,  23  N.  E.  100G,  7  L.  R.  A.  390.  See  Leg- 
acy ;  Advancement;  Gift;  37  Am.  Dec.  667, 
note. 

ADEQUATE  CAUSE.  Sufficient  cause  for 
a  particular  purpose.  Pennsylvania  &  N.  Y. 
Canal  &  R.  Co.  v.  Mason,  109  Pa.  296,  58  Am. 
Rep.  722.  Such  a  cause  as  would  commonly 
produce  a  degree  of  anger,  rage,  resentment, 
or  terror  in  a  person  of  ordinary  temper,  suf- 
ficient to  render  the  mind  incapable  of  cool 
reflection.  Boyett  v.  State,  2  Tex.  App.  100. 
It  is  to  be  determined  by  the  particular  cir- 
cumstances of  each  particular  case;  Wil- 
liams v.  State,  7  id.  396. 

ADEU.  Without  day,  as  when  a  matter 
is  finally  dismissed  by  the  court  Alez  adeu, 
go  without  day.    Y.  B.  5  Edw.  II.  173. 

ADHERING  (Lat.  adhcerere,  to  cling  to). 
Cleaving  to,  or  joining;  as,  adhering  to  the 
enemies  of  the  United  States. 

The  constitution  of  the  United  States,  art  3,  s.  3, 
defines  treason  against  the  United  States  to  consist 
only  in  levying  war  against  them,  or  in  adhering  to 
their  enemies,  giving  them  aid  and  comfort. 

A  citizen's  cruising  in  an  enemy's  ships 
with  a  design  to  capture  or  destroy  Ameri- 
can ships,  would  be  an  adhering  to  the  en- 
emies of  the  United  States;  4  State  Trials 
328 ;    Salk.  634 ;   2  Gilbert,  Ev.  Lofft  ed.  798. 

ADHESION.  The  entrance  of  another 
state  into  an  existing  treaty  with  respect 
only  to  a  part  of  the  principles  laid  down  or 
the  stipulations  agreed  to.  Opp.  Int.  L.  § 
533. 

Though,  properly  speaking,  by  adhesion 
the  third  state  becomes  a  party  only  to  such 
parts  as  are  specifically  agreed  to,  and  by  ac- 
cession it  accepts  and  is  bound  by  the  whole 
treaty,  the  distinction  between  the  two  terms 
is  not  always  observed,  as  appears  even  in 
the  Hague  "Convention  with  Respect  to  the 
Laws  and  Customs  of  War  on  Land"  1899, 
which  in  art.  iv  authorizes  non-signatory 
powers  "to  adhere"  and  provides  how  they 
shall  make  known  their  "adhesion" ;  while, 
as  is  remarked  by  the  writer  above  cited,  "ac- 
cession" is  meant.     See  Accession. 

ADIT.  In  mining  law,  an  entrance  or  ap- 
proach. A  horizontal  excavation  used  as  an 
entrance  to  a  mine,  or  a  vent  by  which  ores 
and  water  are  carried  away. 

An  excavation  "in  and  along  a  lode,"  which 
in  statutes  of  Colorado  and  other  mining 
states  is  made  the  equivalent  of  a  discovery 
shaft.  Snyder,  Mines  1296,  App.  B.  I.  §  6; 
Gray  v.  Truby,  6  Col.  278 ;  Electro-Magnetic 
M.  &  D.  Co.  v.  Van  Auken,  9  CoL  204,  11 
Pac.  80. 


ADITUS  (Lat).  An  approach;  a  way;  a 
public  way.    Co.  Litt  56  c. 

ADJACENT.  Next  to,  or  near,  neighbor- 
ing.    29  Alb.  L.  J.  24. 

Two  of  three  lots  of  land  might  be  described  as 
adjacent  to  the  first,  while  only  the  second  could  be 
said  to  be  adjoining;  1  Cooke  128;  Municipality  No. 
2,  For  Opening  Rofflgnac  St.,  7  La.  Ann.  76  ;  Con- 
tinental Imp.  Co.  v.  Phelps,  47  Mich.  299,  11  N. 
W.  167. 

Land  is  adjacent  to  the  line  of  a  railroad, 
where  by  reason  of  its  proximity  thereto  it  is 
directly  and  materially  benefitted  by  the  con- 
struction thereof;  U.  S.  v.  Chaplin,  31  Fed. 
S90.  Where  a  statute  authorized  the  taking 
of  material  for  building  a  railroad  from  pub- 
lic lands  "adjacent"  to  the  line  thereof,  what 
is  adjacent  land  must  depend  on  the  circum- 
stances of  the  particular  case  ;  where  the  ad- 
jacent ends  and  the  non-adjacent  begins  may 
be  difficult  to  determine.  It  is  a  word  of 
flexible  meaning,  depending  upon  context  and 
subject  matter.    U.  S.  v.  R.  Co.,  31  Fed.  886. 

ADJECTIVE  LAW.  Rules  of  procedure  or 
administration  as  distinguished  from  rules  of 
substantive  law.    See  Holland,  Jurispr.  76. 

See  Substantive  Law. 

ADJOINING.  The  word  in  its  etymologi- 
cal sense,  means  touching  or  contiguous,  as 
distinguished  from  lying  near  or  adjacent. 
In  re  Ward,  52  N.  Y.  397 ;  Miller  v.  Mann,  55 
Vt  479 ;  Akers  v.  Canal  Co.,  43  N.  J.  L.  110. 
It  is  held  that  a  yard  may  be  separated  by  a 
street  and  yet  adjoin;  Com.  v.  Curley,  101 
Mass.  25.  Towns  touching  at  corners  adjoin ; 
Holmes  v.  Carley,  31  N.  Y.  289.  The  words 
"along"  and  "adjoining"  are  used  as  synony- 
mous terms  and  as  used  in  a  statute  imply 
contiguity,  contact;  Walton  v.  Ry.  Co.,  67 
Mo.  58. 

ADJOINING  LANDOWNERS.  See  Emi- 
nent Domain  ;  Lateral  Support  ;  Fence  ; 
Window. 

ADJOURN.  To  put  off;  to  dismiss  till  an 
appointed  day,  or  without  any  such  appoint- 
ment But  it  has  also  acquired  the  meaning 
of  suspending  business  for  a  time — deferring, 
delaying.  Probably,  as  to  a  sale  or  judicial 
proceeding,  it  would  include  the  fixing  of  an- 
other day ;  La  Farge  v.  Van  Wagenen,  14 
How.  Pr.  (N.  Y.)  54.     See  Adjournment. 

ADJOURNED  TERM.  A  continuation  of 
a  previous  or  regular  term.  Harris  v.  Gest, 
4  Ohio  St.  473 ;  Van  Dyke  v.  State,  22  Ala. 
57. 

ADJOURNMENT.  The  dismissal  by  som<3 
court,  legislative  assembly,  or  properly  au- 
thorized officer,  of  the  business  before  them, 
either  finally  (which,  as  popularly  used,  i3 
called  an  adjournment  sine-  die,  without  day), 
or  to  meet  again  at  another  time  appointed 
(which  is  called  a  temporary  adjournment). 

The  constitution  of  the  United  States,  art 
1,  s.  5,  4,  directs  that  "neither  house,  during 
the  session  of  congress,   shall,   without  the 


ADJOURNMENT 


137 


ADJUNCTION 


consent  of  the  other,  adjourn  for  more  than 
three  days,  nor  to  any  other  place  than  that 
In  which  the  two  houses  shall  be  sitting." 

An  adjournment  of  an  annual  town  meet- 
ing to  another  place  or  a  later  hour  of  the 
same  day  was  held  valid,  but  with  hesitation 
as  involving  possible  hardship ;  and  the  pow- 
er should  not  be  exercised  except  in  extreme 
necessity ;   People  v.  Martin,  5  M.  Y.  22. 

In  Civil  Law.  A  calling  into  court;  a 
summoning  at  an  appointed  time.    Du  Cange. 

ADJOURNMENT  DAY.  In  English 
Practice.  A  day  appointed  by  the  judges 
at  the  regular  sittings  for  the  trial  of  causes 
at  nisi  prius. 

ADJOURNMENT  DAY  IN  ERROR.  In 
English  Practice.  A  day  appointed  some 
days  before  the  end  of  the  term  at  which 
matters  left  undone  on  the  affirmance  day 
are  finished.    2  Tidd,  Pract  1224. 

ADJOURNMENT  IN  EYRE.  The  appoint- 
ment of  a  day  when  the  justices  in  eyre 
mean  to  sit  again.    1  Bla.  Com.  186. 

ADJUDGE.  To  decide  or  determine.  It 
is  sometimes  used  with  "considered,  ordered, 
determined,  decreed  as  one  of  the  operative 
words  of  a  final  judgment,"  but  is  also  ap- 
plicable to  interlocutory  orders.  It  is  syn- 
onymous with  "decided,"  "determined,"  etc., 
"and  may  be  used  by  a  judge  trying  a  case, 
without  a  jury  with  reference  to  his  findings 
of  fact,  but  they  would  not  be  a  judgment"; 
Edwards  v.  Hellings,  99  Cal.  214,  33  Pac.  799. 
"Convicted  and  adjudged"  not  to  be  lawfully 
entitled  to  remain  in  the  United  States,  un- 
der the  Chinese  Exclusion  Act,  means  "found, 
decided  by  the  Commissioner,  representing, 
not  the  administration  of  criminal  law,  but 
the  political  department  of  the  government;" 
U.  S.  v.  Hing  Quong  Chow,  53  Fed.  233. 

Adjudged  does  not  mean  the  same  as 
deemed,  nor  is  one  disqualified  as  a  witness 
who  "shall,  upon  conviction,  be  adjudged 
guilty  of  perjury"  merely  by  verdict  of 
guilty  or  until  sentence;  Blaufus  v.  People, 
69  N.  T.  107,  25  Am.  Rep.  148.  It  was  said 
by  Gibson,  C.  J.,  that  the  word  "can  be  pred- 
icated only  of  an  act  of  the  court" ;  Sea- 
right  v.  Com.,  13  S.  &  R.  (Pa.)  301. 

ADJUDICATAIRE.  In  Canadian  Law. 
A  purchaser  at  a  sheriff's  sale.  See  1  Low: 
Can.  241 ;    10  id.  325. 

ADJUDICATION.  A  judgment;  giving  or 
pronouncing  judgment  in  a  case.  Determina- 
tion in  the  exercise  of  judicial  power.  Street 
v.  Benner,  20  Fla.  700;  Joseph  C.  Irwin  & 
Co.  v.  U.  S.,  23  Ct  CI.  149. 

In  Scotch  Law.  A  process  for  transfer- 
ring the  estate  of  a  debtor  to  his  creditor. 
Erskine,  Inst.  lib.  2,  tit  12,  §§  39-55. 

ADJUNCTION  (Lat.  adjungere,  to  join  to). 
In  Civil  Law.  The  attachment  or  union 
permanently  of  a  thing  belonging  to  one 
person  to  that  belonging  to  another.  This 
union  may  be  caused  by  inclusion,  as  if  one 


man's  diamond  be  set  in  another's  rii 
■v >l<l *  ring,  as  if  one's  guard   be 
another's  sword  ;    by  tewing,   as   1. 
Ing  the  silk  of  one  to  make  the  coat 
olhor;     by    construction,   as   by  buildi: 
another's   land;    by    writing,   as   when   one 
writes  on  another's  parchment;    or  by  paint- 
ing, as  when  one  paints  a  picture  on  anoth 
er's  canvas. 

In  these  cases,  as  a  general  rule,  the  ac- 
cessory follows  the  principal;  hence  those 
things  which  are  attached  to  the  things  of 
another  become  the  property  of  the  Latter. 
The  only  exception  which  the  civilians  made 
was  in  the  case  of  a  picture,  which,  alt 
an  accession,  drew  to  itself  the  canvas,  on 
account  of  the  importance  which  was  at- 
tached to  it;  Inst.  2.  1.  34;  Dig.  41.  1.  9.  2. 
The  common  law  implicitly  adopts  the  dvU 
law  doctrines.  See  2  Bla.  Com.  404.  See 
Accession. 

ADJUNCTS.  Additional  judges  sometimes 
appointed  in  the  Court  of  Delegates,  q.  v. 
See  Shelford,  Lun.  310;  1  Hagg.  Eccl.  Rep. 
384  ;   2  id.  84 ;    3  id.  471. 

ADJUST.  To  put  in  order;  to  determine 
an  amount  due.  See  State  v.  Staub,  61  Conn. 
553,  23  Atl.  924;  State  v.  Moore,  40  Neb.  854, 
59  N.  W.  755,  25  L.  R.  A.  774.  Accounts  are 
adjusted  when  they  are  settled  and  a  bal- 
ance struck ;  Townes  v.  Birchett,  12  Leigh 
(Va.)  173,  201.  It  is  sometimes  used  in  the 
sense  of  pay ;  see  Lynch  v.  Nugent,  SO  la. 
422,  46  N.  W.  61. 

ADJUSTMENT.  The  determining  of  the 
amount  of  a  loss.  2  Phillips,  Ins.  85  1S14, 
1815.  To  settle  or  bring  to  a  satisfactory 
state  so  that  parties  are  all  agreed.  Mayor  of 
New  York  v.  Ins.  Co.,  39  N.  Y.  45,  100  Am. 
Dec.  400. 

There  is  no  specific  form  essentially  req- 
uisite to  an  adjustment.  To  render  it  bind- 
ing, it  must  be  intended,  and  understood  by 
the  parties  to  a  policy,  to  be  absolute  and 
final.  It  may  be  made  by  indorsement  on 
the  policy,  or  by  payment  of  the  loss,  or  the 
acceptance  of  an  abandonment;  4  Burr.  1966; 
1  Campb.  134,  274;  Barlow  v.  Ins.  Co.,  4 
Mete.  (Mass.)  270;  Reynolds  v.  Ins.  Co.,  22 
Pick.  (Mass.)  191,  33  Am.  Dec.  727.  It  must 
be  made  with  full  knowledge  of  all  the  facts 
material  to  the  right  of  the  insured  to  re- 
cover, and  the  adjustment  can  be  lmpeai  bed 
only  for  fraud  or  mistake  of  such  material 
fact;  Remington  v.  Ins.  Co..  It  R.  I.  i'!T. 
If  there  is  fraud  by  either  party  to  an  ad- 
justment, it  does  not  hind  the  other;  Tan- 
gier v.  Hallett,  2  Johns,  (as.  i\.  V.)  233;  3 
Campb.  319.  If  one  party  is  led  into  a  ma- 
terial mistake  of  fact  by  fault  of  the  other, 
the  adjustment  will  not  bind  him;  2  Mast 
469;  Elting  v.  Scott,  2  Johns.  (N.  Y.)  157; 
Faugier  v.  Hallett,  2  Johns.  Cas.  (X.  Y.)  L'.;.:. 

It  is  a  sufficient  adjustment  if  the  party 
employed  by  an  insurance  company  goes  up- 
on   the   premises,    makes    calculations,    and 


ADJUSTMENT 


138 


ADMINISTERING  POISON 


states  the  loss;    Fame  Ins.  Co.  v.  "Norris,  IS 
111.  App.  570. 

See  Insurable  Interest;  Abandonment; 
Insurance;  Policy. 

ADMEASUREMENT  OF  DOWER.  A 
remedy  which  lay  for  the  heir  on  reaching 
his  majority,  to  rectify  an  assignment  of 
dower  made  during  his  minority,  by  which 
the  doweress  had  received  more  than  she 
was  legally  entitled  to.  2  Bla.  Com.  136; 
Gilbert,  Uses  379. 

The  remedy  is  still  subsisting,  though  of 
rare  occurrence.  See  1  Washb.  R.  P.  225, 
226;  Jones  v.  Brewer,  1  Pick.  (Mass.)  314; 
McCormick  v.  Taylor,  2  Ind.  336. 

In  some  of  the  states,  the  special  proceed- 
ing which  is  given  by  statute  to  enable  the 
widow  to  compel  an  assignment  of  dower, 
is  termed  an  admeasurement  of  dower. 

ADMEASUREMENT  OF  PASTURE.  A 
remedy  which  lay  in  certain  cases  for  sur- 
charge of  common  of  pasture.  It  lay  where 
a  common  of  pasture  appurtenant  or  in  gross 
was  certain  as  to  number ;  or  where  one  had 
common  appendant  or  appurtenant,  the  quan- 
tity of  which  had  never  been  ascertained. 
The  sheriff  proceeded,  with  the  assistance  of 
a  jury  of  twelve  men,  to  admeasure  and  ap- 
portion the  common  as  well  of  those  who  had 
surcharged  as  those  who  had  not,  and,  when 
the  writ  was  fully  executed,  returned  it  to 
the  superior  court.    Termes  de  la  Ley. 

The  remedy  is  now  abolished  in  England; 
3  Sharsw.  Bla.  Com.  239,  n.;  and  in  the  Unit- 
ed States;    3  Kent  419. 

In  English  Law.  Aid;  support.  Stat.  1 
Edw.  IV.  c.  1. 

In  Civil  Law.  Imperfect  proof.  Merlin, 
Rupert. 

ADMINICULAR.  Auxiliary  and  subordi- 
nate to.  The  Marianna  Flora,  3  Mas.  116, 
121,  Fed.  Cas.  No.  9.0S0.  Adminicular  evi- 
dence, as  used  in  ecclesiastical  law,  is  evi- 
dence to  explain  and  complete  other  evidence. 
2  Lee,  Eccl.  595.     See  1  Gr.  Ev.  Sec.  606. 

ADMINISTER.  To  give,  to  direct  or  cause 
to  be  taken.  Gilchrist  v.  Comfort,  34  N.  Y. 
239 ;  Brinson  v.  State,  89  Ala.  105,  8  South. 
527. 

ADMINISTERING  POISON.  An  offence 
of  an  aggravated  character,  punishable  un- 
der the  various  statutes  defining  the  offence. 

The  stat  9  G.  IV.  c.  31,  s.  11,  enacts  "that  if  any 
person  unlawfully  and  maliciously  shall  administer, 
or  attempt  to  administer,  to  any  person,  or  shall 
cause  to  be  taken  by  any  person,  any  poison  or  oth- 
er destructive  thing,"  etc.,  every  such  offender,  etc. 
In  a  case  under  this  statute,  it  was  decided  that,  to 
constitute  the  act  of  administering  the  poison,  it 
was  not  absolutely  necessary  that  there  should  have 
been  a  delivery  to  the  party  poisoned,  but  that  if 
she  took  it  from  a  place  where  it  had  been  put  for 
her  by  the  defendant,  and  any  part  of  it  went  into 
her  stomach,  it  was  an  administering;  4  Carr.  & 
P.  369;  1  Mood.  Cr.  Cas.  114;  Brown  v.  State,  88 
Ga.  257,  14  S.  E.  578;  Bell  v.  Com.,  88  Va.  365,  13 
S.  E.  742;  Blackburn  v.  State,  23  Ohio  St.  146;  La 
Beau  v.  People,  34  N.  Y.  223. 
The  statute  7  Will.  IV.  &  1  Vict  c.  85  enacts  that 


"Whosoever,  with  intent  to  procure  the  miscarriage 
of  any  woman,  shall  unlawfully  administer  to  her, 
or  cause  to  be  taken  by  her,  any  poison,  or  other 
noxious  thing,"  shall  be  guilty  of  felony.  Upon  an 
indictment  under  this  section,  it  was  proved  that 
the  woman  requested  the  prisoner  to  get  her  some- 
thing to  procure  miscarriage,  and  that  a  drug  was 
both  given  by  the  prisoner  and  taken  by  the  woman 
with  that  intent,  but  that  the  taking  was  not  in  the 
presence  of  the  prisoner.  It  was  held,  nevertheless, 
that  the  prisoner  had  caused  the  drug  to  be  taken 
within  the  meaning  of  the  statute;  1  Dears.  &  B.  127, 
164.  It  is  not  sufficient  that  the  defendant  merely 
imagined  that  the  thing  administered  would  have 
the  effect  intended,  but  it  must  also  appear  that  the 
drug  administered  was  either  a  "poison"  or  a 
"noxious  thing." 

See  Accessory;   Abortion. 

ADMINISTRATION  (Lat.  administrare,  to 
assist  in). 

Of  Estates.  See  Executors  and  Admin- 
istrators. 

Of  Government.  The  management  of  the 
executive  department  of  the  government. 

Those  charged  with  the  management  of 
the  executive  department  of  the  government. 

ADMINISTRATOR.  See  Executors  and 
Administrators. 

See  Ordinary. 

ADMINISTRATRIX.  A  woman  to  whom 
letters  of  administration  have  been  granted 
and  who  administers  the  estate. 

When  an  administratrix  marries,  that  fact 
does  not  prevent  her  from  suing  as  such ; 
Cosgrove  v.  Pitman,  103  Cal.  268,  37  Pac. 
232 ;  nor  does  the  marriage  of  a  feme  sole 
annul  her  appointment;  Hamilton  v.  Levy, 
41  S.  C.  374,  19  S.  E.  610. 

ADMIRAL  (Fr.  amiral).  A  high  officer  or 
magistrate  that  hath  the  government  of  the 
king's  navy,  and  the  hearing  of  all  causes 
belonging  to  the  sea.  Co  well.  See  Admi- 
ralty. 

By  statute  of  July  25,  1866,  the  active  lists  of  line- 
officers  of  the  navy  of  the  United  States  were  divid- 
ed into  ten  grades,  of  which  the  highest  is  that  of 
admiral,  and  the  next  that  of  vice-admiral.  By 
statute  of  Jan.  24,  1873,  these  grades  ceased  to  exist 
when  the  offices  became  vacant,  and  the  highest 
rank   is   rear-admiral. 

ADMIRALTY.  A  court  which  has  a  very 
extensive  jurisdiction  of  maritime  causes, 
civil  and  criminal. 

On  the  revival  of  commerce  after  the  fall  of  the 
Western  empire,  and  the  conquest  and  settlement 
by  the  barbarians,  it  became  necessary  that  some 
tribunal  should  be  established  that  might  hear  and 
decide  causes  that  arose  out  of  maritime  commerce. 
The  rude  courts  established  by  the  conquerors  had 
properly  jurisdiction  of  controversies  that  arose  on 
land,  and  of  matters  pertaining  to  land,  that  being 
at  the  time  the  only  property  that  was  considered 
of  value.  To  supply  this  want,  which  was  felt  by 
merchants,  and  not  by  the  government  or  the  people 
at  large,  on  the  coast  of  Italy  and  the  northern 
shores  of  the  Mediterranean,  a  court  of  consuls  was 
established  in  each  of  the  principal  maritime  cities. 
Contemporaneously  with  the  establishment  of  these 
courts  grew  up  the  customs  of  the  sea,  partly  bor- 
rowed, perhaps,  from  the  Roman  law,  a  copy  of 
which  had  at  that  time  been  discovered  at  Amalfi, 
but  more  out  of  the  usage  of  trade  and  the  practice 
of  the  sea.  These  were  collected  from  time  to  time, 
embodied  in  the  form  of  a  code,  and  published  under 
the  name  of  the  Consolato  del  Mare.     See  that  sub- 


ADMIRALTY 


139 


ADMIRALTY 


title  under  Code.  The  first  collection  of  these  cus- 
toms Is  said  to  be  as  early  as  the  eleventh  century  ; 
but  the  earliest  authentic  evidence  we  have  of  their 
existence  is  their  publication,  in  1266,  by  Alphonso 
X.,  King  of  Castile-  ;  1  Pardessus,  Lois  ilaiUimes, 
201.     See   3  Kent   16. 

On  Christmas  of  each  year,  the  principal  mer- 
chants made  choice  of  judges  for  the  ensuing  year, 
and  at  the  same  time  of  judges  of  appeal,  and  their 
courts  had  jurisdiction  of  all  causes  that  arose  out 
of  the  custom  of  the  sea,  that  is,  of  all  maritime 
causes  whatever.  Their  judgments  were  carried  in- 
to execution,  under  proper  officers,  on  all  movable 
property,  ships  as  well  as  other  goods,  but  an  ex- 
ecution from  these  courts  did  not  run  against 
land;    Ordonnunce  de  Valcntia,  12S3,  c.  1,  §§  22, 

When  this  species  of  property  came  to  be  of  suf- 
ficient importance,  and  especially  when  trade  on  the 
sea  became  gainful  and  the  merchants  began  to 
grow  rich,  their  jurisdiction  in  most  maritime  states 
was  transferred  to  a  court  of  admiralty  ;  and  this 
is  the  origin  of  admiralty  jurisdiction.  The  admiral 
was  originally  more  a  military  than  a  civil  officer, 
for  nations  were  then  more  warlike  than  commer- 
cial; Ordonnance  de  Louis  XIV.,  liv.  1;  2  Lirown, 
Civ.  &  Adm.  Law,  c.  1.  The  court  had  jurisdiction 
of  all  national  affairs  transacted  at  sea,  and  partic- 
ularly of  prize;  and  to  this  was  added  jurisdiction 
of  all  controversies  of  a  private  character  that 
grew  out  of  maritime  employment  and  commerce ; 
and  this,  as  nations  grew  more  commercial,  became 
in   the  end   its  most  important  jurisdiction. 

The  admiralty  is,  therefore,  properly  the  succes- 
sor of  the  consular  courts,  which  were  emphatically 
the  courts  of  merchants  and  sea-going  persons.  The 
most  trustworthy  account  of  the  jurisdiction  thus 
transferred  is  given  in  the  Ordonnance  de  Louis 
XIV.,  published  in  1681.  This  was  compiled  under 
the  inspiration  of  his  great  minister  Colbert,  by  the 
most  learned  men  of  that  age,  from  information 
drawn  from  every  part  of  Europe,  and  was  uni- 
versally received  at  the  time  as  an  authoritative 
exposition  of  the  common  maritime  law;  Valin, 
Preface  to  his  Commentaries ;  3  Kent  16.  They 
have  been  recognized  as  authority  in  maritime 
causes  by  the  courts  of  this  country,  both  federal 
and  state ;  The  Seneca,  3  Wall.  Jr.  395,  Fed.  Cas. 
No.  12,670;  Morgan  v.  Ins.  Co.,  4  Dall.  (U.  S.)  455, 
1  L.  Ed.  907,  where  Tilghman,  C.  J.,  referred  to 
them  "not  as  containing  any  authority  in  them- 
selves but  as  evidence  of  the  general  marine  law." 
The  changes  made  in  the  Code  de  Commerce  and 
in  the  other  maritime  codes  of  Europe  are  unim- 
portant and  inconsiderable.  This  ordinance  de- 
scribes the  jurisdiction  of  the  admiralty  courts  as 
embracing  all  maritime  contracts  and  torts  arising 
from  the  building,  equipment,  and  repairing  of  ves- 
sels, their  manning  and  victualling,  the  government 
of  their  crews  and  their  employment,  whether  by 
charter-party  or  bill  of  lading,  and  from  bottomry 
and  insurance.  This  was  the  general  jurisdiction 
of  the  admiralty;  it  took  all  the  consular  jurisdic- 
tion which  was  strictly  of  a  maritime  nature  and 
related  to  the  building  and  employment  of  vessels 
at  sea.     See  Code. 

In  English  Law.     The  court  of  the  admiral. 

This  court  was  erected  by  Edward  III.  At  least 
so  it  is  affirmed  by  Blackstone,  3  Com.  69 ;  but 
Judge  Story  cited  Selden  as  having  collected  much 
evidence  to  carry  back  the  origin  of  the  jurisdic- 
tion more  than  two  centuries  before  that,  to  the  time 
of  Henry  I.;  De  Lovio  v.  Boit,  2  Gall.  398,  Feci.  Cas. 
No.  3,776;  and  Coke,  the  bitterest  enemy  of  the  Ad- 
miralty, refers  to  the  jurisdiction  as  "so  ancient 
that  its  commencement  cannot  be  known"  ;  12  Rep. 
80.  The  question,  however,  is  merely  academic,  ex- 
cept as  the  jurisdiction  of  the  Continental  Courts  at 
the  period  of  its  origin  may  aid  in  determining  the 
extent  and  limitations  of  the  early  English  Court. 
Authorities  are  collected  in  66  L.  R.  A.  193,  note,  to 
show   that   Blackstone  was   mistaken. 

It  Is  said  in  Halsbury's  Laws  of  England,  §  86, 
that  prior  to  the  Judicature  Act  of  1873  the  seal 
of  the  Judicial  Committee  of  the  Privy  Council, 
affixed  to  orders  in  Admiralty  appeals,  bears  upon 


Its    face    the    words  "Ab    Ed.jarc    i .';,  lico,    thus   pic- 
turesquely  suggesting   a  very   ancient   origin  of  Ju- 
risdiction,"   but   whether    Its    origin    was    in    Saxon 
times  or  those  of  Henry  I.,  the  jurisdiction  of  this 
court    In   the    reign    of    Edw.    III.    was 
It   was  held    by    the   Lord  High  Admiral,    an 
called  the  High  Court  of  Admiralty,  or  b<-fore  his 
deputy,  the  Judge  of   the  Admiralty,  by  which   lat- 
ter officer  it   has  for  a  time  been  exclusively 
It    sat   as    two    courts,    with    separate    commissions, 
known  as  the  Instance  Court  and  the  Prize  Court, 
the  former  of  which  was  commonly  intended  by  the 
term    admiralty.     At    its   origin    the   jurisdiction  of 
this  court  was  very  extensive,  embracing  all  mari- 
time matters.     By  the  statutes  13  Rich.   II.  c.  5,  and 
15    Rich.    II.    c.    3,    especially    as   explained    by    the 
common   law  courts,    its   jurisdiction  was   much   re- 
stricted;   and  this   restriction  was  further  p: 
for   by   the  statute   of  2  Hen.    IV.    c.   11,    pro 
penalties  for  wrongfully  suing  in  admiralty, 
lent    and    long-continued    contest    between    the    ad- 
miralty and  common  law  courts  resulted  in  the  es- 
tablishment of  the  restriction  which  continued  with- 
out interruption,   except   that   abortive   efforts   were 
made    to    compromise    the    differences    between    the 
two  jurisdictions,  in  1575  and  163:',  until  the  statutes 
3  &  4  Vict.  c.   65,  and  9  &  10   Vict.   c.   99,   and   :!    & 
25  Vict.   c.  10,  materially   enlarged   its  powers.     See 

2  Pars.  Mar.  Law  479;  1  Kent  Lect.  XVII  ;  Smith. 
Adm.  1;  De  Lovio  v.  Boit,  2  Gall.  398.  Fed.  Cas.  No. 
3,776;  Ramsey  v.  Allegre,  12  Wheat.  W.  S.)  611,  6 
L.  Ed.  746;  Bains  v.  The  James,  1  Laldw.  514,  Fed. 
Cas.  No.  756  ;  Davies  93.  This  court  was  abolished 
by  the  Judicature  Act  of  1873,  and  its  functions 
transferred  to  the  High  Court  of  Justice  (Probate, 
Divorce,  and  Admiralty  Division),  with  appeal  to 
the  Court  of  Appeal  and  thence  to  the  House  of 
Lords ;  Halsbury,  Laws  of  Eng.  §  93.  As  to  the 
effect  of  the  early  English  restriction  statutes,  see 
Judge  Story's  opinion  in  De  Lovio  v.  Boit,  2  Gall. 
398,  Fed.  Cas.  No.  3,776,  and  also  the  L.  R.  A.  note 
cited  supra,  which  contains  a  review  of  English  and 
American  Admiralty  jurisdiction. 

For  a  historical  review  of  the  English  Admiralty 
jurisdiction  and  how  it  was  administered  from  time 
to  time  and  the  legislation  on  the  subject,  see  the 
introduction  to  Williams  &  Bruce,  Adm.  Jur.  & 
Prac.  3d  Ed. 

The  civil  jurisdiction  of  the  court  extends 
to  torts  committed  on  the  high  seas,  includ- 
ing personal  batteries  and  false  representa- 
tions; 4  C.  Rob.  Adm.  73;  collision  of  ships; 
Abbott,  Shipp.  230;  [1S93]  A.  C.  46S;  Lush. 
539;  restitution  of  possession  from  a  claim- 
ant withholding  unlawfully;    2  B.  &  C.  244; 

1  Hagg.  81,  240,  342;  p.  Dods.  Adm.  38;  3 
C.  Rob.  Adm.  93,  133,  213 ;  4  id.  275,  2S7 ;  5 
id.  155 ;  to  dispossess  masters ;  4  C.  Rob. 
2S7;  but  not  when  title  is  to  be  decided  as 
between  conflicting  claims  or  ownership,  in 
which  case  the  jurisdiction  is  in  the  Common 
Law  Courts ;  2  Dods.  289  ;  cases  of  piratical 
and  illegal  taking  at  sea  and  contracts  of  a 
maritime  nature,  including  suits  between 
part  owners;  1  Hagg.  30G ;  3  id.  299;  1  Ld. 
Raym.  223;  2  id.  L235;  2  B.  &  C.  218;  for 
mariners'  and  officers'  wages;    2  Ventr.  1S1 ; 

3  Mod.  379;    1  Ld.  Raym.  632;    2  id.  1206; 

2  Str.  85S,  937;  1  id.  7<>7  ;  Swab.  S6;  2  Dods. 
11;  master's  disbursements  for  which  there 
is  a  lien;  [19041  P.  422;  seaman's  suit  for 
wrongful  dismissal :  L.  K.  1  A.  ft  K.  384; 
pilotage;  [1898]  P.  36;  2  Hagg.  Adm.  326; 
Abbott.  Shipp.  19S,  200 ;  towage ;  3  W.  Rob. 
138;  5  P.  D.  227  ;  bottomry  and  respondentia 
bonds;  6  Jur.  241;  3  Hagg.  Adm.  66;  3 
Term  207;    2  Ld.   Raym.  982;    Rep.   temp. 


ADMIRALTY 


140 


ADMIRALTY 


Holt,  48;  3  Ch.  Rob.  240;  3  Moo.  P.  C.  C. 
1 ;  [1S99]  P.  293 ;  and  by  statute  to  ques- 
tions of  title  arising  in  a  bottomry  suit; 
Halsb.  L.  En?.  Sec.  101 ;  and  salvage  claims ; 
2  Hagg.  Adm.  3;  3  C.  Rob.  Adm.  355;  1  W. 
Rob.  Adm.  18;  [1901]  P.  304;  %d.  243;  [1898] 
P.  179;  id.  206;  life  salvage,  if  tbere  is  some 
property  saved;  8  P.  D.  115;  damage  to 
cargo;  Lush.  45S ;  Br.  &  L.  102;  necessa- 
ries; [1895]  P.  95;  13  P.  D.  82.  It  has  no 
jurisdiction  over  an  action  in  personam 
against  a  pilot  for  damages  arising  from  a 
collision  between  ships  on  the  high  seas, 
due  to  his  negligence;    [1S92]  1  Q.  B.  273. 

Formerly  the  remedy  in  rem  could  not  be 
enforced  beyond  the  property  proceeded 
against,  but  when  owners  appeared  in  such 
an  action  it  was  said  by  Sir  F.  Jeune,  that 
the  judgment  can  be  enforced  to  the  full 
amount  although  exceeding  the  value  of  the 
property  ;  [1S92]  P.  304  ;  [1S99]  P.  2S5 ;  but 
see  extended  comment  on  these  cases  in 
Wms.  &  Br.  Adm.  Pr.  Introd.  19,  where  it 
is  pointed  out  that  the  point  did  not  arise 
for  decision. 

In  Gager  v.  The  A.  D.  Patchin,  1  Am.  L. 
J.  (N.  S.)  529,  Fed.  Cas.  No.  5,170,  Conk- 
ling,  D.  J.,  said :  "But  by  a  long  series  of 
American  decisions  terminating  with  that  in 
New  Jersey  Steam  Nav.  Co.  v.  Bank,  6  How. 
(U.  S.)  344,  12  L.  Ed.  4G5,  the  principle  is 
now  firmly  established  that  the  jurisdiction 
of  the  American  courts  of  Admiralty  does 
not  depend  on  the  decisions  of  the  English 
Common  Law  Courts,  relative  to  the  juris- 
diction of  the  high  court  of  admiralty  of 
England,  but  that  all  contracts  in  their  na- 
ture strictly  maritime  are  cognizable  in  the 
Admiralty."  It  was  a  suit  in  rem  for  sal- 
vage and  as  there  was  a  special  agreement,  it 
was  objected  that  it  was  a  mere  case  of  con- 
tract and  not  within  the  admiralty  jurisdic- 
tion, but  the  decision  was  otherwise  and  was 
aflirmed ;  The  A.  D.  Patchin,  1  Blatchf.  414, 
Fed.  Cas.  No.  87. 

It  was  therefore  not  practicable  to  rest  the 
American  jurisdiction  upon  the  English  sys- 
tem and  ignore  those  decisions.  The  strug- 
gle in  our  courts  was  not  so  much  between 
the  two  contentions  which  had  distracted  the 
English  courts,  as  whether  the  narrow  juris- 
diction finally  imposed  upon  the  admiralty 
in  England  was  that  which  our  Constitution 
contemplated.  While  some  of  our  judges 
contended  for  this  view,  the  weight  of  au- 
thority was  finally  given  to  the  more  logical 
conclusion  that  the  Admiralty  and  Maritime 
jurisdiction  which  was  by  the  Constitution 
included  within  the  judicial  power  of  the 
United  States  was  not  limited  by  the  Ad- 
miralty jurisdiction  of  England  but  is  to  be 
determined  by  the  general  maritime  law. 

The  criminal  jurisdiction  of  the  court  was 
transferred  to  the  Central  Criminal  Court 
by  the  4  &  5  Will.  IV.  c.  36.  It  extended  to 
all  crimes  and  offences  committed  on  the 
high  seas,  or  within  the  ebb  and  flow  of  the 


tide,  and  not  within  the  body  of  a  county.  A 
conviction  for  manslaughter  committed  on  a 
German  vessel,  by  reason  of  negligent  colli- 
sion with  an  English  vessel,  within  two  and 
a  half  miles  of  the  English  coast,  whereby 
a  passenger  on  the  English  vessel  was  lost, 
is  not  wifhin  the  jurisdiction  of  the  English 
criminal  courts;  46  L.  J.  M.  C.  17. 

The  first  step  in  the  process  in  a  plenary 
action  may  be  the  arrest  of  the  person  of 
the  defendant,  or  of  the  ship,  vessel,  or  fur- 
niture; in  which  cases  the  defendant  must 
find  bail  or  fidejussors  in  the  nature  of  baiL 
and  the  owner  must  give  bonds  or  stipula- 
tions equal  to  the  value  of  the  vessel  and 
her  immediate  earnings;  or  the  first  step 
may  be  a  monition  to  the  defendant.  In 
1840,  the  form  of  proceeding  in  this  court 
was  very  considerably  changed.  The  ad- 
vocates, surrogates,  and  proctors  of  the 
Court  of  Arches  were  admitted  to  practice 
there ;  the  proceedings  generally  were  assimi- 
lated to  those  of  the  common-law  courts, 
particularly  in  respect  of  the  power  to  take 
vivd  voce  evidence  in  open  court;  power  to 
compel  the  attendance  of  witnesses  and  the 
production  of  papers;  to  ordering  iasues  to 
be  tried  in  any  of  the  courts  of  Nisi  Prius, 
and  allowing  bills  of  exception  on  the  trial 
of  such  issues,  and  the  grant  of  power  to  ad- 
miralty to  direct  a  new  trial  of  such  issues; 
to  make  rules  of  court,- and  to  commit  for 
contempt  The  judge  may  have  the  assist- 
ance of  a  jury,  and  in  suits  for  collision  he 
usually  decides  upon  his  own  view  of  the 
facts  and  law,  after  having  been  assisted  by, 
and  hearing  the  opinion  of,  two  or  more 
Trinity  Brethren. 

A  court  of  admiralty  exists  in  Ireland; 
but  the  Scotch  court  was  abolished  by  1 
Will.  IV.  c.  69.     See  Elder  Brethren. 

In  American  Law.  A  tribunal  exercising 
jurisdiction  over  all  maritime  contracts, 
torts,  injuries,  or  offences.  2  Pars.  Mar. 
Law  508. 

After  a  somewhat  protracted  contest  the  jurisdic- 
tion of  admiralty  was  extended  beyond  that  of  the 
English  admiralty  court  and  has  been  said  to  be  co- 
equal with  that  of  the  English  court  as  defined  by 
the  statutes  of  Rich.  II.,  under  the  construction 
given  to  them  by  the  contemporaneous  or  immedi- 
ately subsequent  courts  of  admiralty  ;  2  Pars.  Mar. 
Law  508;  Bened.  Admir.  §g  7,  8.  There  is  early 
English  authority,  mainly  collected  by  Judge  Story 
in  his  famous  opinion  in  De  Lovio  v.  Boit,  2  Gall. 
398,  Fed.  Cas.  No.  3,776,  that  the  common  law  courts 
were  wrong  when,  in  their  controversy  with  the 
admiralty  court,  they  contended  for  the  original 
narrow  limit  of  the  jurisdiction.  It  would  seem, 
however,  to  be  the  more  accurate  view  that  the 
-cases  which  settled  the  American  jurisdiction  estab- 
lished it  not  so  much  upon  the  basis  of  any  con- 
struction of  the  English  restraining  statutes  as  up- 
on the  theory  that  they  were  not  to  be  recognized 
as  having  force  in  this  country,  either  in  Colonial 
times  or  after  the  Revolution.  In  Waring  v.  Clarke, 
5  How.  (U.  S.)  441,  12  L.  Ed.  226,  it  was  held  that 
"the  statutes  of  Richard  II.  were  never  in  force 
In  any  of  the  colonies,  except  as  they  were  adopted 
by  the  legislatures  of  some  of  them."  And  in  a 
judgment  much  referred  to  and  commended  in  sub- 
sequent cases,  Judge  Winchester,  characterized  by 
Judge  Peters  as  "a  distinguished  ornament"  of  his 


ADMIRALTY 


141 


ADMIRALTY 


profession,  In  Stevens  v.  The  Sandwich,  1  Pet.  Adm. 
233  n,  was  of  opinion  that  "the  statutes  H  &  15 
Rich.  II.  have  received  in  England  a  construction 
which  must  at  all  times  prohibit  their  extension  to 
this  country."  So  Judge  Wilson  in  Kynock  v.  The 
Propeller  S.  C.  Ives,  Newb.  -05,  Fed.  Cas.  No.  7,958, 
said:  "The  district  courts  of  the  United  States,  sit- 
ting as  courts  of  admiralty,  are  not  embarn. 
the  restraining  statutes  of  Richard  II.  and  Henry 
IV.,  but  exercise  as  large  jurisdiction  and  are 
governed  by  the  same  principles  of  maritime  law  as 
are  recognized  by  the  courts  of  admiralty  lu  the- 
maritime  nations  of  continental   Europe." 

It  came  to  be  generally  conceded  that  at  the  time 
of  the  Revolution  the  English  admiralty  jurisdic- 
tion was  emasculated  by  the  construction  put  upon 
the  restrictive  statutes  by  the  common  law  courts, 
but  it  must  likewise  be  admitted  that  the  decisions 
of  those  courts  were  the  paramount  law  of  Eng- 
land. It  was  therefore  not  practicable  to  rest  the 
American  jurisdiction  upon  the  English  system  and 
ignore  those  decisions.  The  struggle  in  our  courts 
was  not  so  much  between  the  two  contentions  which 
had  distracted  the  English  courts,  as  whether  the 
narrow  jurisdiction  finally  Imposed  upon  the  admi- 
ralty court  in  England  was  that  which  our  consti- 
tution contemplated.  While  some  of  our  judges 
contended  for  this  view,  the  weight  of  authority 
was  finally  given  to  the  more  logical  conclusion 
that  the  admiralty  and  maritime  jurisdiction  which 
was  by  the  constitution  included  within  the  Judicial 
power  of  the  United  States  was  not  limited  by  the 
admiralty  Jurisdiction  of  England,  but  is  to  be  de- 
termined by  the  recognized  principles  of  the  mari- 
time law  which  were  invoked  by  Mr.  Justice  Wash- 
ington in  Davis  v.  Brig  Seneca,  3  Wall.  Jr.  395,  Fed. 
Cas.  No.  12,670,  as  having  "been  respected  by  marl- 
time  courts  of  all  nations  and  adopted  by  most,  if 
not  by  all  of  them  on  the  continent  of  Europe." 

Finally,  in  a  note  to  The  Huntress,  2  Ware  (Dav. 
93)  10.',  Fed.  Cas.  No.  6,914,  which  is  considered  an 
authoritative  discussion  of  the  American  admiralty 
Jurisdiction,  attention  is  directed  to  "contemporane- 
ous declarations  of  every  branch  of  the  government, 
and  the  quiet  assent  of  the  people  to  an  unbroken 
and  unvarying  practice  of  more  than  half  a  cen- 
tury, all  concurring  in  one  point,  that  the  admiralty 
and  maritime  jurisdiction,  under  the  constitution, 
is  of  larger  extent  than  that  of  the  English  court 
of  admiralty,  and  all  repudiating  the  assumption 
that  we  are  to  look  to  the  laws  of  England  for  the 
definition  of  these  terms  in  the  constitution."  See 
De  Lovio  v.  Boit,  2  Gall.  398,  Fed.  Cas.  No.  3,776; 
The  Huntress,  2  Ware  (Dav.  93)  102,  Fed.  Cas.  No. 
6,914;  Peele  v.  Ins.  Co.,  3  Mas.  23,  Fed.  Cas.  No. 
10,905;  Read  v.  Hull  of  a  New  Brig,  1  Sto.  244, 
Fed.  Cas.  No.  11,609;  Hale  v.  Ins.  Co.,  2  Sto.  176, 
Fed.  Cas.  No.  5,916;  Ramsey  v.  Allegre,  12  Wheat. 
(U.  S.)  611,  6  L.  Ed.  74G;  U.  S.  v.  The  Sally,  2  Cr. 
(U.  S.)  406,  2  L.  Ed.  320;  U.  S.  v.  The  Betsey,  4 
Cr.  (U.  S.)  444,  2  L.  Ed.  673;  U.  S.  v.  La  Vengeance, 
3  Dall.  (U.  S.)  297,  1  L.  Ed., 610;  New  Jersey  Steam 
Nav.  Co.  v.  Bank,  6  How.  (U.  S.)  311,  12  L.  Ed.  463; 
Bogart  v.  The  John  Jay,  17  How.  (U.  S.)  399,  15  L. 
Ed.  95;    Minturn  v.   Maynard,  17  How.    (U.   S.)  477, 

15  L   Ed.   235;    Ward  v.   Peck,  18  How.   (U.   S.)   267, 

16  L.  Ed.  383;  Thomas  v.  Osborn,  19  How.  (U.  S.) 
22,  15  L.  Ed.  534;  Schuchardt  v.  Babbage,  19  How. 
(U.  S.)  239,  15  L.  Ed.  625;  Jackson  v.  The  Magnolia, 
20  How.  (U.  fi.)  296,  15  L.  Ed.  909;  Taylor  v.  Carryl, 
20  How.  583,  15  L.  Ed.   1028. 

The  court  of  original  admiralty  jurisdiction  in  the 
United  States  is  the  United  States  District  Court. 
From  this  court  causes  could  formerly  be  removed, 
In  certain  cases,  to  the  Circuit  and  ultimately  to 
the  Supreme  Court. 

So  much  of  the  foregoing  as  relates  to  appeals 
from  Circuit  and  District  Courts  of  the  United 
States  to  the  Supreme  Court  was  changed  by  chap. 
617,  1  Sup.  Rev.  Stats.,  so  that  appeals  may  be  taken 
direct  from  those  courts  to  the  Supreme  Court  from 
the  final  sentences  and  decrees  in  prize  causes  ;  in 
other  admiralty  cases  appeals  will  now  lie  from 
the  District  Court  to  the  Circuit  Court  of  Appeals, 
the  decision  of  the  latter  court  being  final.     la  cer- 


tain cases,  however,  the  decisions  of  the  Circuit 
Courts  of  Appeals  may  be  reviewed  by  the  Supreme 
Court,  for  which  see  U^iied  States  Courts. 

It  extends  to  the  navigable  rivers  of  the 
"United  States,  whether  tidal  or  not,  the 
lakes,  and  the  waters  connecting  them; 
The  Propeller  Genesee  Chief  v.  Fif/.hugh,  12 
How.  (U.  S.)  443,  13  L.  Ed.  1058;  The 
Moses  Taylor,  4  Wall.  (U.  S.)  411,  18  L.  Ed. 
397;  The  Eagle,  8  Wall.  (U.  S.)  15,  19  L. 
Ed.  365;  The  Belfast,  7  Wall.  (U.  S.  ■ 
19  L.  Ed.  266;  Garcia  y  Leon  v.  Gal 
11  Wall.  (U.  S.)  185,  20  L.  Ed.  74;  Ameri- 
can Steamboat  Co.  v.  Chace,  10  Wall.  (U.  S.) 
522,  21  L.  Ed.  869;  Assante  v.  Bridge  Co., 
40  Fed.  765;  to  rivers  which  either  alone  or 
with  others  are  highways  for  commerce  with 
other  states  or  foreign  countries;  The  Dan- 
iel Ball,  10  WalL  (U.  S.)  557,  19  L.  Ed.  999; 
U.  S.  v.  Ferry  Co.,  21  Fed.  332 ;  to  a  stream 
tributary  to  the  lakes,  but  lying  entirely 
within  one  state;  The  General  Cass,  1  Brown. 
Adm.  334,  Fed.  Cas.  No.  5,307;  to  a  ferry 
boat  plying  between  opposite  sides  of  the 
Mississippi  River;  The  Gate  City,  5  Biss. 
200,  Fed.  Cas.  No.  5,207;  to  a  steam  ferry- 
boat to  carry  railway  ears  across  the  1 
sippi;  The  St.  Louis,  4S  Fed.  312;  to  the 
Illinois  and  Lake  Michigan  Canal ;  The  Oler, 
2  Hughes  12,  Fed.  Cas.  No.  10,485;  Ex  parte 
Boyer,  109  U.  S.  629,  3  Sup.  Ct  434,  27  L 
Ed.  1056;  to  the  Welland  Canal;  The  Avon, 

I  Brown,  Adm.  170,  Fed.  Cas.  No.  680;  Scott 
v.  The  Young  America,  Newb.  101,  Fed.  Cas. 
No.  12,549;  to  the  Erie  Canal;  The  B.  M. 
McChesney,  8  Ben.  150,  Fed.  Cas.  No. 

The  Robert  W.  Parsons,  191  U.  S.  17,  24 
Sup.  Ct.  8,  48  L.  Ed.  73 ;  to  the  Detroit  Riv- 
er, out  of  the  jurisdiction  of  any  particular 
state  and  within  the  territorial  limits  of 
Canada ;  U.  S.  v.  Rodgers,  150  U.  S.  249,  14 
Sup.  Ct.  109,  37  L.  Ed.  1071.  But  it  does 
not  extend  to  a  creek  which,  though  acces- 
sible from  the  sea,  has  no  public  wharf  or 
terminus  for  travel ;  Manigault  v.  S.  M. 
Ward  &  Co.,  123  Fed.  707;  nor  to  a  river 
which  is  not  of  itself  a  highway  for  inter- 
state  or   foreign   commerce;    The   Montello, 

II  Wall.  411,  20  L.  Ed.  191.  For  specific 
enumeration  of  certain  navigable  waters  6ee 
notes,  48  L.  Ed.  74 ;  22  id.  391,  and  42  L.  R. 
A.  305.  The  Judiciary  Act  of  17S9  (R.  S.  § 
563),  while  conferring  admiralty  Jurisdiction 
upon  the  Federal  courts,  saves  to  suitors 
their  common-law  remedy,  which  has  always 
existed  for  damages  for  collision  at  sea; 
Schoonmaker  v.  Gilmore,  102  V.  s.  118,  26 
L.  Ed.  95;  where  a  vessel  is  outside  of  the 
territorial  limitation  of  the  civil  process  of  a 
court,  jurisdiction  by  stipulation  or  consent 
of  the  master  cannot  be  obtained  for  the 
purpose  of  a  libel  t>  rem;  The  Hungaria,  41 
Fed.  109. 

Admiralty  has  jurisdiction  of  a  libel  by 
mariners  for  wages  against  a  vessel  plying 
on  navigable  waters,  even  though  lying  en- 


ADMIRALTY 


142 


ADMIRALTY 


tirely  within  one  state;  The  Sarah  Jane, 
2  Am.  L.  Rev.  455,  Fed.  Cas.  No.  12,349;  but 
see  The  Scotia,  3  Am.  L,  Rev.  610,  Fed.  Cas. 
No.  12,513,  where  the  then  cases  on  admiral- 
ty jurisdiction  by  reason  of  locality  are 
fully  treated.  Also  for  services  as  engineer 
on  a  tug-boat ;  The  W.  F.  Brown,  4G  Fed.  290. 
Its  civil  jurisdiction  extends  to  cases  of 
salvage;  Mason  v.  The  Blaireau,  2  Cr.  (U. 
S.)  240,  2  L  Ed.  266;  American  Ins.  Co.  v. 
Canter,  1  Pet  (U.  S.)  511,  7  L.  Ed.  242;  U. 
S.  v.  Coombs,  12  Pet.  (U.  S.)  72,  9  L.  Ed. 
1004;  The  Louisa  Jane,  2  Low.  302,  Fed. 
Cas.  No.  8,5:32;  The  Roanoke,  50  Fed.  574; 
McMullin  v.  Blackburn,  59  Fed.  177;  De  Le- 
on v.  Leitch,  65  Fed.  1002;  bonds  of. bottom- 
ry, respondentia,  or  hypothecation  of  ship 
and  cargo;  The  Ann  C.  Pratt,  1  Curt.  C.  C. 
340,  Fed.  Cas.  No.  409;  The  Fortitude,  3 
Sumn;  228,  Fed.  Cas.  No.  4,953;  The  Aurora, 
1  Wheat.  (U.  S.)  96,  4  L  Ed.  45;  Blaine  v. 
The  Charles  Carter,  4  Cr.  (U.  S.)  328,  2 
L.  Ed.  63G;  The  Virgin  v.  Vyfhius,  8  Pet. 
(U.  S.)  538,  8  L.  Ed.  1036;  Carrington  v. 
The  Ann  C.  Pratt,  18  How.  (U.  S.)  63,  15 
L.  Ed.  267 ;  seamen's  wages ;  The  Sarah  Jane, 

1  Low.  203,  Fed.  Cas.  No.  12,349;  2  Pars. 
Mar.  Law  509;  The  Karoo,  49  Fed.  651; 
Sheppard  v.  Taylor,  5  Pet.  (U.  S.)  675,  8 
L.  Ed.  269 ;  The  Thomas  Jefferson,  10  Wheat 
(U.  S.)  428,  6  L  Ed.  358;  seizures  under  the 
laws  of  impost,  navigation,  or  trade;  1  U. 
S.  Stat,  at  Large,  76 ;  The  Lewellen,  4  Biss. 
156,  Fed.  Cas.  No.  8,307 ;  U.  S.  v.  The  Queen, 
11  Blatchf.  416,  Fed.  Cas.  No.  16,108;  Two 
Hundred  and  Fifty  Barrels  of  Molasses  v. 
U.  S.,  Chase,  Dec.  503,  Fed.  Cas.  No.  14,293; 
The  North  Cape,  6  Biss.  505,  Fed.  Cas.  No. 
10,316 ;  cases  of  prize  or  ransom ;  Glass  v. 
The  Sloop  Betsey,  3  Dall.  (Pa.)  6,  1  L.  Ed. 
485 ;  charter-parties ;  The  Volunteer,  1  Sumn. 
551,  Fed.  Cas.  No.  16,991;  Certain  Logs  of 
Mahogany,  2  Sumn.  589,  Fed.  Cas.  No.  2,559 ; 
Arthur  v.  The  Cassius,  2  Sto.  81,  Fed.  Cas. 
No.  564 ;  Drinkwater  v.  The  Spartan,  1  Ware 
149,  Fed.  Cas.  No.  4,085;  contracts  of  af- 
freightment between  different  states  or  for- 
eign ports ;  The  Maggie  Hammond,  9  Wall. 
(U.  S.)  449,  19  L.  Ed.  772;  The  Queen  of 
the  Pacific,  61  Fed.  213;  Church  v.  Shelton, 

2  Curt.  C.  C.  271,  Fed.  Cas.  No.  2,714;  Oakes 
v.  Richardson,  2  Low.  173,  Fed.  Cas.  No.  10,- 
390 ;  The  Reeside,  2  Sumn.  567,  Fed.  Cas.  No. 
11,657;  The  Rebecca,  1  Ware  188,  Tex.  Cas. 
No.  11,619 ;  The  Phebe,  1  Ware  263,  Fed.  Cas. 
No.  11,064;  The  Paragon,  1  Ware  322,  Fed. 
Cas.  No.  10,708;  New  Jersey  Steam  Nav.  Co. 
v.  Bank,  6  How.  (U.  S.)  344,  12  L.  Ed.  465; 
and  upon  a  canal-boat  without  powers  of 
propulsion,  upon  an  artificial  canal ;  The  E. 
M.  McChesney,  21  Int.  Rev.  Rec.  221,  Fed. 
Cas.  No.  4,463;  but  not  to  coal  barges,  not 
licensed  or  enrolled ;  Wood  v.  Two  Barges, 
46  Fed.  204;  for  injury  to  vessel  in  passing 
through  a  drawbridge  over  a  navigable  riv- 
er ;  Assante  v.  Charleston  Bridge  Co.,  40  Fed. 
765;  Hill  v.  Board  of  Chosen  Freeholders  of 


Essex  County,  45  Fed.  260;  but  not  against 
schooner  for  damages  done  to  drawbridge; 
The  John  C.  Sweeney,  55  Fed.  540;  but  see 
also,  contra,  Greenwood  v.  Town  of  West- 
port,  60  Fed.  560;  contracts  for  conveyance 
of  passengers;  The  New  World  v.  King,  16 
How.  (U.  S.)  469,  14  L.  Ed.  1019;  The  Pacif- 
ic, 1  Blatchf.  569,  Fed.  Cas.  No.  10,643;  The 
Zenobia,  1  Abbott  Adm.  48,  Fed.  Cas.  No. 
18,208;  Walsh  v.  Wright,  1  Newb.  494,  Fed. 
Cas.  No.  17,115;  The  Hammonia,  10  Ben. 
512,  Fed.  Cas.  No.  6,006;  and  suits  for  loss 
of  their  baggage  ;  Walsh  v.  Wright,  Newb.  494, 
Fed.  Cas.  No.  17,115 ;  The  Priscilla,  106  Fed. 
739;  contracts  with  material-men;  The  Gen- 
eral Smith,  4  Wheat  (U.  S.)  438,  4  L.  Ed.  609  ; 
The  Onore,  6  Ben.  564,  Fed.  Cas.  No.  10,538 ; 
see  People's  Ferry  Co.  v.  Beers,  20  How.  (U. 
S.)  393,  15  L.  Ed.  961;  21  Bost  Law  Rep. 
601 ;  jettisons,  maritime  contributions,  and 
averages ;  Dike  v.  The  St.  Joseph,  6  McLean 
573.  Fed.  Cas.  No.  3,908;  Cutler  v.  Rae,  7 
How.  (U.  S.)  729,  12  L.  Ed.  890;  Dupont  de 
Nemours  v.  Vance,  19  How.  (U.  S.)  162,  15 
L.  Ed.  584 ;  21  Bost.  Law  Rep.  87,  96 ;  pilot- 
age; The  Anne,  1  Mas.  508,  Fed.  Cas.  No. 
412;  Hobart  v.  Drogan,  10  Pet  (U.  S.)  108, 
9  L.  Ed.  363 ;  Cooley  v.  Board  of  Wardens  of 
Port  of  Philadelphia,  12  How.  (U.  S.)  299, 
13  L.  Ed.  996;  see  Wave  v.  Hyer,  2  Paine, 
C.  C.  131,  Fed.  Cas.  No.  17,300;  Gibbons  v. 
Ogden,  9  Wheat.  (U.  S.)  1,  207,  6  L.  Ed.  23; 
Ex  parte  McNiel,  13  Wall.  (TL  S.)  236,  20 
L.  Ed.  624;  The  America,  1  Low.  177,  Fed. 
Cas.  No.  289;  The  California,  1  Sawy.  463, 
Fed.  Cas.  No.  2,312 ;  Low  v.  Com'rs  of  Pilot- 
age, R.  M.  Charlt  (Ga.)  302,  314;  Smith  v. 
Swift,  8  Mete.  (Mass.)  332 ;  4  Bost.  Law  Rep. 
20 ;  contracts  for  wharfage ;  Ex  parte  East- 
on,  95  U.  S.  68,  24  L.  Ed.  373;  The  Kate 
Tremaine,  5  Ben.  60,  Fed.  Cas.  No.  7,622; 
Banta  v.  McNeil,  5  Ben.  74,  Fed.  Cas.  No. 
966;  The  J.  H.  Starin,  15  Blatchf.  473,  Fed. 
Cas.  No.  7,320;  Upper  Steamboat  Co.  v. 
Blake,  2  D.  C.  App.  51 ;  to  injuries  to  a  ves- 
sel by  reason  of  a  defective  dock ;  Ball  v. 
Trenholm,  45  Fed.  588;  but  not  to  injuries 
to  wharves;  The  Ottawa,  1  Brown,  Adm. 
356,  Fed.  Cas.  No.  10,616 ;  contracts  for  tow- 
age ;  The*  W.  J.  Walsh,  5  Ben.  72,  Fed.  Cas. 
No.  17,922 ;  surveys  of  ship  and  cargo ;  Story, 
Const.  §  1665 ;  The  Tilton,  5  Mas.  465,  Fed. 
Cas.  No.  14,054 ;  Janney  v.  Ins.  Co.,  10 
Wheat.  (U.  S.)  411,  6  L.  Ed.  354;  but  see 
2  Pars.  Mar.  Law  511,  n. ;  and  generally  to 
all  assaults  and  batteries,  damages,  and  tres- 
passes, occurring  on  the  high  seas ;  2  Pars. 
Mar.  Law;  see  Thomas  v.  Lane,  2  Sumn.  1, 
Fed.  Cas.  No.  13,902;  The  Sea  Gull,  Chase, 
Dec.  145,  Fed.  Cas.  No.  145 ;  Chase,  Dec.  150, 
Fed.  Cas.  No.  6,477 ;  The  Normannia,  62  Fed. 
469;  Jervey  v.  The  Carolina,  66  Fed.  1013; 
but  not  where  the  injury  was  received  on 
land  though  the  wrongful  action  was  done 
on  ship;  The  Mary  Garrett,  63  Fed.  1009; 
Price  v.  The  Belle  of  the  Coast,  66  Fed.  62 ; 
The  Haxby,  95  Fed.  170 ;  or  where  the  origin 


ADMIRALTY 


143 


ADMIRALTY 


of  the  wrong  is  on  the  water  but  the  sub- 
stance or  consummation  of  the  injury  on 
land;  The  Plymouth,  3  Wall.  (U.  S.)  20,  18 
L.  Ed.  125;  Ex  parte  Phenix  Ins.  Co.,  118 
U.  S.  610,  7  Sup.  Ct  25,  30  L.  Ed.  274 ;  John- 
son v.  Elevator  Co.,  119  U.  S.  388,  7  Sup.  Ct 
254,  30  L.  Ed.  447 ;  Cleveland  T.  &  V.  R.  Co. 
v.  Steamship  Co.,  208  U.  S.  316,  28  Sup.  Ct 
414,  52  L.  Ed.  508,  13  Ann.  Cas.  1215;  The 
Troy,  208  U.  S.  321,  28  Sup.  Ct  416,  52  L. 
Ed.  512;  and  see  The  Blackheath,  195  U.  S. 
361,  25  Sup.  Ct  46,  49  L.  Ed.  236 ;  for  injury 
to  seamen  in  consequence  of  negligence  of 
master  or  owner;  The  A.  Heaton,  43  Fed. 
592 ;  Grimsley  v.  Hankins,  46  Fed.  400 ;  con- 
tract for  supplies  to  a  vessel;  The  Electron, 
48  Fed.  689 ;  The  Ella,  4S  Fed.  569 ;  but  see 
The  H.  E.  Willard,  53  Fed.  599;  Diefenthal 
v.  Hamburg-Amerikanische  Packetfahrt  Ac- 
tien-Gesellschaf t,  46  Fed.  397 ;  and  to  enforce 
a  lien  for  repairs  on  a  canal  boat  in  a  dry 
dock ;  The  Robert  W.  Parsons,  191  U.  S.  17, 
24  Sup.  Ct  8,  48  L.  Ed.  73 ;  but  not  for  sup- 
plies to  a  pile-driver ;  Pile  Driver  E.  O.  A., 
69  Fed.  1005 ;  for  labor  and  material  in  com- 
pleting and  equipping  a  new  vessel  after  she 
has  been  launched  and  named ;  The  Manhat- 
tan, 46  Fed.  797 ;  but  not  to  contracts  to  pro- 
cure insurance;  Marquardt  v.  French,  53 
Fed.  603  ;  for  insurance  premium  ;  The  Daisy 
Day,  40  Fed.  603 ;  nor  to  reform  a  policy  of 
marine  insurance;  Williams  v.  Ins.  Co.,  5(5 
Fed.  159.  It  also  includes  actions  for  dam- 
ages for  death  caused  by  collision  on  naviga- 
ble waters;  The  City  of  Norwalk,  55  Fed. 
98 ;  and  for  injury  to  a  seaman  from  the  ex- 
plosion of  a  steamtug  boiler  due  to  negli- 
gence ;  Grimsley  v.  Hankins,  46  Fed.  400 ; 
or  to  a  laborer,  working  in  the  hold  of  a 
vessel,  from  a  piece  of  timber  sent  without 
warning  down  a  chute  by  a  person  working 
on  a  pier;  Hermann  v.  Mill  Co.,  69  Fed.  646. 
It  extends  to  a  bath-house  built  on  boats  but 
designed  for  transportation;  The  Public 
Bath  No.  13,  61  Fed.  692. 

With  respect  to  the  cases  in  which  the 
cause  of  action  arises  partly  on  shipboard 
and  partly  on  land,  the  admiralty  jurisdic- 
tion of  the  "United  States  is  much  more  liber- 
al than  that  of  England,  and  the  different 
classes  of  cases  are  enumerated  in  the  opin- 
ion of  Thomas,  D.  J.,  in  The  Strabo,  90  Fed. 
110,  where  he  lays  down  what  seem  to  be  the 
settled  principles  as  to  the  jurisdiction  with 
respect  to   maritime   torts. 

(1)  Where  the  cause  arises  on  the  ship 
and  is  communicated  to  the  property  on 
la i!d.  as  fire;  The  Plymouth,  3  Wall.  (U.  S.) 
20,  18  L.  Ed.  125;  Ex  parte  Phenix  Ins.  Co., 
118  U.  S.  610,  7  Sup.  Ct.  25,  30  L.  VA.  274  ; 
when  missives  are  sent  from  the  ship  and 
take  effect  elsewhere;  TJ.  S.  v.  Davis,  2 
Sumn.  482,  Fed.  Cas.  No.  14,932;  The  Ep- 
silon,  6  Ben.  378,  Fed.  Cas.  No.  4,506;  where 
some  part  of  the  ship  comes  in  contact  with 
the  land  to  the  injury  of  persons  or  proper- 
ty ;  Johnson  v.  Elevator  Co.,  119  U.  S.  3SS, 


7   Sup.   Ct  254,   30   L.   Ed.   447;   The   Maud 
Webster,   8   Ben.   547,   Fed.   Cas.    N 
and  herein  where  the  vessel  does  >: 
wharves ;  The  C.  Accame,  20  Fed.  642 ; 
er  Ramsdell  T.  Co.   v.   Compagnie  Generate 
Transatlantique,    63    Fed.    845 ;    also    where 
material   discharged    from   a  ship   con; 
contact  with  persons  on  land ;  The  Mai 
rett,   63   Fed.    1009;    see   also   Price    v.    The 
Belle  of  the  Coast,  66  Fed.  62.     In  all 
under  this  class  there  is  no  jurisdiction,  the 
injured   person  or  thing  being  on  the  land 
when  the  negligent   act  operates  upon   him 
or  it. 

(2)  Cases  where  the  primal  cause  ari~'- 
on  land  and  is  injuriously  communicated  to 
the  ship,  as  structures  wrongfully  maintain- 
ed and  interrupting  navigation ;  Atlee  v. 
Packet  Co.,  21  Wall.  (U.  S.)  3S9,  22  L.  Ed. 
619;  The  Maud  Webster,  8  Ben.  547,  Fed. 
Cas.  No.  9,302 ;  Greenwood  v.  Town  of  West- 
port,  60  Fed.  560;  Oregon  City  Transp.  Co. 
v.  Bridge  Co.,  53  Fed.  549;  City  of  Boston 
v.  Crowley,  38  Fed.  202,  204;  The  Ark. 
17  Fed.  383 ;  where  material  discharged  from 
the  land  into  the  ship  does  injury  to  persons 
on  the  ship;  Hermann  v.  Mill  Co.,  09  Fed. 
646.  In  this  class  admiralty  has  jurisdiction. 
The  case  of  The  H.  S.  Pickands,  42  Fed.  2.59, 
was  said  to  be  different  from  those  last  men- 
tioned, the  injury  to  the  libellant  being  caus- 
ed by  the  falling  of  a  ladder  against  the  side 
of  the  ship,  and  there  was  held  to  be  no  ju- 
risdiction since  the  negligence  was  an  act 
done  on  the  wharf;  but  in  The  Stral 
Fed.  998,  39  C.  C.  A.  375,  a  fall  from  a  lad 
der  was  caused  by  its  being  negligently  lefi 
fastened  from  the  rail  of  the  vessel  so  that 
libellant  was  thrown  to  the  wharf  and  in- 
jured, and  there  was  jurisdiction.  The  ulti- 
mate authority  to  which  all  cases  referred 
was  that  of  The  Plymouth,  3  Wall.  (T\  S.) 
20,  18  Li.  Ed.  125,  cited  supra.  In  The  Mary 
Stewart,  10  Fed.  137,  it  was  said  that  there 
must  be  two  ingredients,  the  wrong  on  the 
water  and  the  damage  resulting,  both  of 
which  must  concur  to  constitute  a  maritime 
cause.  This  was  criticized  in  City  of  Mil- 
waukee v.  The  Curtis,  37  Fed.  705,  where  it 
was  said  that  "it  suffices  if  the  damage,  the 
substantial  cause  of  action  arising  out  of  the 
wrong,  is  complete  upon  navinaMe  waters." 
So  in  Hermann  v.  Mill  Co.,  69  Fed.  646,  cited 
supra,  it  was  thought  that  the  langua 
The  Mary  Stewart,  10  Fed.  137,  was  too 
broad.  It  is  said  that  the  proper  solution  >>f 
the  question  of  Jurisdiction  "is  to  ascertain 
the  place  of  the  consummation  and  subs 
of  the  injury" 

There  is  no  jurisdiction  in  Admiralty  To 
administer  relief  as  courts  of  equity,  and  an 
executory  contract  for  the  purchase  of  a 
vessel  could  not  be  enforced :  Kynoch  v.  The 
S.  C.  Ives,  Newb.  205,  Fed.  Cas.  No.  7 

The  jurisdiction  may  be  invoked  by  one  of 
two  vessels,  both  held  in  fault  for  collision, 
to   enforce   contribution   against   the    other' 


ADMIRALTY 


144 


ADMISSIONS 


Erie  R.  Co.  v.  Transp.  Co.,  204  U.  S.  220,  27 
Sup.  Ct.  246,  51  L.  Ed.  450. 

The  jurisdiction  extends  to  all  maritime 
torts,  q.  v.,  and  as  to  maritime  contracts,  see 
that  title. 

Its  criminal  jurisdiction  extends  to  all 
crimes  and  offences  committed  on  the  high 
seas  or  beyond  the  jurisdiction  of  any  coun- 
try. The  criminal  jurisdiction  of  the  United 
States  courts  is  extended  to  the  Great  Lakes 
by  2G  St.  L.  424.  The  open  waters  of  the 
Great  Lakes  are  high  seas  within  the  mean- 
ing of  R.  S.  §  5346;  U.  S.  v.  Rodgers,  150 
U.  S.  249,  14  Sup.  Ct.  109,  37  L.  Ed.  1071. 
See  Jurisdiction. 

A  civil  suit  is  commenced  by  filing  a  libel, 
upon  which  a  warrant  for  arrest  of  the  per- 
son, or  attachment  of  his  property  if  he 
cannot  be  found,  even  though  in  the  hands 
of  third  persons,  or  a  simple  monition  to 
appear,  may  issue;  or,  in  suits  in  rem,  a 
warrant  for  the  arrest  of  the  thing  in  ques- 
tion ;  or  two  or  more  of  these  separate  pro- 
cesses may  be  combined.  Thereupon  bail 
or  stipulations  are  taken  if  the  party  offer 
them. 

In  most  cases  of  magnitude,  oral  evidence 
is  not  taken ;  but  it  may  be  taken,  and  it  is 
the  general  custom  to  hear  it  in  cases  where 
smaller  amounts  are  involved.  The  decrees 
are  made  by  the  court  without  the  interven- 
tion of  a  jury. 

A  suit  in  rem  and  a  suit  in  personam  may 
be  brought  concurrently  in  the  same  court, 
when  arising  on  the  same  cause  of  action; 
The  Normandie,  40  Fed.  590;  The  Baracoa, 
44  Fed.  102. 

In  criminal  cases  the  proceedings  are 
similar  to  those  at  common  law. 

See  United  States  Coubts;  Bottomry; 
Salvage;  Collision;  Court  of  Lord  High 
Admiral  ;  Courts  of  England  ;  Elder  Breth- 
ren ;  Abandonment  ;   Maritime  Cause. 

ADMIRALTY,     FIRST     LORD     OF     THE. 

At  the  head  of  the  British  Navy  are  five 
Lords  Commissioners.  The  First  Lord  is  a 
member  of  the  Cabinet,  the  others  are  called 
Sea  Lords. 

ADMISSIBLE.  Pertinent  and  proper  to 
be  considered  in  reaching  a  decision.  Used 
with  reference  to  the  issues  to  be  decided  in 
any  judicial  proceeding. 

ADMISSION  (Lat.  ad,  to,  miltere,  to 
send).  The  act  by  which  attorneys  and 
counsellors  become  recognized  as  officers  of 
the  court  and  are  allowed  to  practise.  The 
qualifications  required  vary  widely  in  the 
different  states.     See  Attorney. 

ADMISSIONS.  Confessions  or  voluntary 
acknowledgments  made  by  a  party  of  the  ex- 
istence of  certain  facts. 

As  distinguished  from  confessions,  the  term  is  ap- 
plied to  civil  transactions  and  to  matters  of  fact  in 
criminal    cases  where   there   is   no   criminal   intent. 

As  distinguished  from  consent,  an  admission  may 


be  said  to  be  evidence  furnished  by  the  party's  own 
act  of  his  consent  at  a  previous  period. 

Direct,  called  also  express,  admissions  are 
those  which  are  made  in  direct  terms. 

Implied  admissions  are  those  which  re- 
sult from  some  act  or  failure  to  act  of  the 
party. 

Incidental  admissions  are  those  made  in 
some  other  connection,  or  involved  in  the 
admission  of  some  other  fact. 

As  to  the  parties  by  whom  admissions 
must  have  been  made  to  be  considered  as 
evidence: — 

They  may  be  made  by  a  party  to  the  rec- 
ord, or  by  one  identified  in  interest  with 
him ;  9  B.  &  C.  535 ;  Morris'  Lessee  v.  Van- 
deren,  1  Dall.  (U.  S.)  65,  1  L.  Ed.  38.  Not, 
however,  where  the  party  of  record  is  mere- 
ly a  nominal  party  and  has  no  active  inter- 
est in  the  suit;  1  Campb.  392;  3  B.  &  C. 
421 ;  Appleton  v.  Boyd,  7  Mass.  131 ;  Head  v. 
Shaver,  9  Ala.  791 ;  Frear  v.  Evertson,  20 
Johns.  (N.  Y.)  142;  Owings  v.  Low,  5  Gill  &  J. 
(Md.)  134;  nor  by  one  of  several  devisees  on 
a  contest  of  a  will  for  incapacity  and  undue 
influence ;  O'Connor  v.  Madison,  98  Mich.  183, 
57  N.  W.  105. 

They  may  be  made  by  one  of  several  hav- 
ing a  joint  interest,  so  as  to  be  binding  upon 
all;  8  B.  &  C.  36;  Hunt  v.  Bridgham.  2 
Pick.  (Mass.)  5S1,  13  Am.  Dec.  458 ;  Beitz  v. 
Fuller,  1  McCord  (S.  C.)  541,  10  Am.  Dec. 
693;  Patterson  v.  Choate,  7  Wend.  (N.  Y.) 
441 ;  Bound  v.  Lathrop,  4  Conn.  336,  10  Am. 
Dec.  147;  Getchell  v.  Heald,  7  Greenl.  (Me.) 
26;  Owings  v.  Low,  5  Gill  &  J.  (Md.)  144; 
Van  Reimsdyk  v.  Kane,  1  Gall.  635;  Fed. 
Cas.  No.  16,872.  Mere  community  of  interest, 
however,  as  in  case  of  coexecutors ;  1  Greenl. 
Ev.  §  176;  Hammon  v.  Huntley,  4  Cow.  (N. 
Y.)  493;  James  v.  Hackley,  16  Johns.  (N.  Y) 
277;  trustees;  3  Esp.  101 ;  co-tenants;  Dan 
v.  Brown,  4  Cow.  (N.  Y.)  4S3,  15  Am.  Dec. 
395;  Smith  v.  Vincent,  15  Conn.  1,  38  Am. 
Dec.  59;  is  not  sufficient.  Admissions  of 
one  of  several  defendants  against  his  inter- 
ests will  be  receivable  in  evidence  against 
him  only;  Kiser  v.  Dannenberg,  SS  Ga.  541, 
15  S.  E.  17. 

The  interest  in  all  cases  must  have  siu> 
sisted  at  the  time  of  making  the  admissions ; 
2  Stark.  41 ;  Plant  v.  McEwen,  4  Conn.  544 ; 
Packer's  Lessee  v.  Gonsalus,  1  S.  &  R.  (Pa.) 
526.  Admissions  made  by  one  subsequently 
appointed  administratrix  are  not  admissible 
against  her  when  suing  as  such  nor  against 
her  successor  in  office;  Gooding  v.  Ins.  Co., 
46  111.  App.  307;  More  v.  Finch,  65  Hun  404, 
20  N.  Y.  Supp.  164.  An  admission  of  debt  by 
an  executor  does  not  bind  the  estate ;  Orr's 
Appeal,  7  W.  N.  C.  (Pa.)  126. 

They  may  be  made  by  any  person  inter- 
ested in  the  subject-matter  of  the  suit, 
though  the  suit  be  prosecuted  in  the  name 
of  another  person  as  a  cestui  que  trust;  1 
Wils.  257;    1  Bingh.  45;    but  see  3  N.  &  P. 


ADMISSIONS 


145 


ADMISSIONS 


598 ;  6  M.  &  G.  261 ;  or  by  an  indemnifying 
creditor  in  an  action  against  the  sheriff ;  7 
C.  &  P.  629. 

They  may  be  made  by  a  third  person,  a 
stranger  to  the  suit,  where  the  issue  is  sub- 
stantially upon  the  rights  of  such  a  person 
at  a  particular  time ;  1  Greenl.  Ev.  §  1S1 ; 
or  one  who  has  been  expressly  referred  to 
for  information ;  3  C.  &  P.  532 ;  or  where 
there  is  a  privity  as  between  ancestor  and 
heir;  5  B.  &  Ad.  223;  assignor  and  assignee; 
Inhabitants  of  West  Cambridge  v.  Inhab- 
itants of  Lexington,  2  Pick.  (Mass.)  536 ;  Lit- 
tle v.  Libby,  2  Greenl.  (Me.)  242,  11  Am.  Dec. 
68;  Gibblehouse  v.  Strong,  3  Rawle  (Pa.)  437; 
Snelgrove  v.  Martin,  2  McCord  (S.  C.)  241; 
Smith  v.  Martin,  17  Conn.  399 ;  intestate  and 
administrator ;  1  Taunt.  141 ;  grantor  and 
grantee  of  land ;  Jackson  v.  Bard,  4  Johns. 
(N.  Y.)  230,  4  Am.  Dec.  267 ;  Norton  v.  Petti- 
bone,  7  Conn.  319,  18  Am.  Dec.  116;  Weid- 
man  v.  Kohr,  4  S.  &  R.  (Pa.)  174;  and  oth- 
ers. Letters  written  by  a  third  person  at  de- 
fendant's request  about  the  matter  in  con- 
troversy, are  admissible;  Holley  v.  Knapp, 
45  111.  App.  372.  Statements  by  a  third  per- 
son used  by  a  party  are  evidence  against  him 
as  admissions  in  a  subsequent  controversy; 
4  Best  &  S.  641. 

They  may  be  made  by  an  agent,  so  as  to" 
bind  the  principal;  Steph.  Ev.  17;  declara- 
tions of  an  architect  to  the  contractor  in  di- 
recting operations  are  admissible  against  the 
owner  in  an  action  for  price  of  work  and 
material ;  Wright  v.  Reusens,  133  N.  Y.  29S, 
31  N.  E.  215 ;  so  far  only,  however,  as  the 
agent  has  authority ;  Western  Union  Tele- 
graph Co.  v.  Way,  83  Ala.  542,  4  South.  844 ; 
Barry  v.  Insurance  Co.,  62  Mich.  424,  29  N. 
W.  31;  Ruggles  v.  Insurance  Co.,  114  N.  Y. 
415,  21  N.  B.  1000,  11  Am.  St.  Rep.  674 ;  and 
not,  it  would  seem,  in  regard  to  past  trans- 
actions; 11  Q.  B.  46;  liaven  v.  Brown,  7 
Greenl.  (Me.)  421,  22  Am.  Dec.  208;  Thall- 
himer  v.  Brinckerhoff,  4  Wend.  (N.  Y.)  394, 
21  Am.  Dec.  155;  City  Bank  of  Baltimore  v. 
Bateman,  7  Harr.  &  J.  (Md.)  104;  Parker  v. 
Green,  8  Mete.  (Mass.)  142.  Declarations  of 
an  agent  not  in  the  course  of  the  business  of 
the  agency,  will  not  prove  agency  or  ratifi- 
cation ;  Ransom  v.  Duckett,  48  111.  App.  659. 
One  cannot  prove  agency  by  the  declarations 
of  an  alleged  agent  only;  Sier  v.  Bache,  7 
Misc.  165,  27  N.  Y.  Supp.  255;  nor  will  acts 
and  conduct  of  an  alleged  agent  not  ac- 
quiesced in  by  the  principal,  establish  agen- 
cy;  Martin  v.  Suber,  39  S.  C.  525,  IS  S.  E. 
125. 

The  admissions  of  the  wife  bind  the  hus- 
band so  far  only  as  she  has  authority  in  the 
matter ;  1  Carr.  &  P.  621 ;  and  so  the  formal 
admissions  of  an  attorney  bind  his  client;  7 
C.  &  P.  6;  but  not  a  necessarily  fatal  ad- 
mission unintentionally  made;  Nesbitt  v. 
Turner,  155  Pa.  429,  26  Atl.  750;  nor  when 
not  within  the  scope  of  his  authority ;  Lewis 
v.  Duane,  69  Hun  28,  23  N.  Y.  Supp.  433;  and 
Bouv.— 10 


see  2  C.  &  K.  216;  3  C.  B.  608.  Declara- 
tions of  a  husband  in  the  absence  of  h: 
are  not  admissible  to  affect  the  title  ot  his 
wife  to  personal  property ;  Leedom  v.  Lee- 
dom,  160  Pa.  273,  28  Atl.  1024 ;  nor  will  his 
admissions  affect  the  wife's  separate  estate; 
Clapp  v.  Engledow,  82  Tex.  290,  18  S.  W.  146. 
See  Evidk.n'ce. 

Implied  admissions  may  result  from  assum- 
ed character ;  1  B.  &  Aid.  677 ;  from  con- 
duct; 6  C.  &  P.  241;  Tilgham  v.  Fisher,  9 
Watts  (Pa.)  4-il ;  from  acquiescence;  which  is 
positive  in  its  nature;  Carter  v.  Bennett,  4 
Fla.  340;  from  possession  of  document^  in 
some  cases;  5  C.  &  I*.  7"i ;   25  State  Tr.  120. 

The  omission  to  answer  a  letter  is  not  ev- 
idence of  the  truth  of  statements  made  in 
the  letter;    see  16  Cyc.  960. 

In  civil  matters,  constraint  will  not  avoid 
admissions,  if  imposition  or  fraud  were  not 
made  use  of. 

Admissions  of  one  in  possession  of  lands, 
made  to  others  than  the  owner,  are  to  be 
considered  in  determining  whether  his  pos- 
session is  adverse  to  the  owner;  Lochausen 
v.  Laughter,  4  Tex.  Civ.  App.  291,  23  S.  \V. 
513. 

Judicial  admissions ;  2  Campb.  341 ;  Boy- 
den  v.  Moore,  5  Mass.  365;  Jones  v.  Hoar,  5 
Pick.  (Mass.)  285 ;  those  which  have  been 
acted  on  by  others ;  Commercial  Bank  v. 
King,  3  Rob.  (La.)  243;  Kinney  v.  Farns- 
worth,  17  Conn.  355 ;  13  Jur.  253 ;  and  those 
contained  in  deeds  as  between  parties  and 
privies ;  Crane  v.  Morris,  6  Pet.  (U.  S.)  611. 
8  L.  Ed.  514;  are  conclusive  evidence  against 
the  party  making  them. 

Declarations  and  admissions  are  admis- 
sible to  prove  partnership,  if  made  by  al- 
leged  partners;  Schulberg  v.  Gutterman,  8 
Misc.  502,  .28  N.  Y.  Supp.  763;  admission  of 
one  that  he  is  in  partnership  with  another,  is 
not  binding  on  the  latter;  Bank  of  Osceola 
v.  Outhwaite,  50  Mo.  App.  124. 

It  frequently  occurs  in  practice,  that,  in 
order  to  save  expenses  as  to  mere  formal 
proofs,  the  attorneys  on  each  side  consent 
to  admit,  reciprocally,  certain  facts  in  the 
cause  without  requiring  proof  of  them. 
These  are  usually  reduced  to  writing. 
admissions  are  in  general  conclusive;  1  Gr. 
Ev.  §  1S6,  205;  Holley  v.  Young,  OS  Me.  215, 
28  Am.  Rep.  40;  Woodcock  v.  City  of  Calais. 
'OS  Me.  244;  Marsh  v.  Mitchell.  26  X.  J.  Eq. 
497;  Perry  v.  Mfg.  Co..  40  Conn.  31i 
Camp.  139;  1  M.  &  W.  507;  and  may  be  used 
in  evidence  on  a  new  trial:  State  v.  Bryan, 
3  Gill  (Md.)  389;  Merchants*  Rank  v.  Rank. 
3  Gill  (Md.)  96,  43  Am.  Dec.  300:  Farmers' 
Rank  v.  Sprigg,  11  Md.  389;  Elwood  v.  Lan- 
non's  Lessee,  27  Md.  209;  5  C.  &  P.  386; 
but  may  be  withdrawn  if  Improvidently 
made,  but  only  in  a  clear  case  of  mistake; 
1  Gr.  Ev.  §  200:  Marsh  v.  Mitchell.  20  N.  J. 
Eq.  501;  and  on  timely  notice;  IIar;croves 
v.  Redd,  43  Ga.  150;  5  C.  &  P.  3S6 ;  and  up- 
on leave  granted  in  the  exercise  of  a  sound 


ADMISSIONS 


146 


ADMITTANCE 


discretion;  Perry  v.  Mfg.  Co.,  40  Conn.  313; 
7  id.  6;  but  not  after  the  position  of  the  par- 
ties has  been  changed,  as  by  the  death  of  a 
party  or  witness ;   Wilson  v.  Bank,  55  Ga.  98. 

Admissions  against  interest  in  a  bill  In 
equity  cannot  be  used  as  such  in  another 
case ;   Gresl.  Eq.  Ev.  323  ;  Wigm.  Evid.  §  1005. 

As  to  admissions  during  negotiations  for 
a  compromise,  see  Compromise. 

In  Pleading.  The  acknowledgment  or  rec- 
ognition by  one  party  of  the  truth  of  some 
matter  alleged  by  the  opposite  party. 

In  Equity. 

Partial  admissions  are  those  which  are 
delivered  in  terms  of  uncertainty,  mixed 
up  with  explanatory  or  qualifying  circum- 
stances. 

Plenary  admissions  are  those  which  ad- 
mit the  truth  of  the  matter  without  qualifi- 
cation, whether  it  be  asserted  as  from  in- 
formation and  belief  or  as  from  actual 
knowledge. 

At  Law. 

In  all  pleadings  in  confession  and  avoid- 
ance, admission  of  the  truth  of  the  opposite 
party's  pleading  is  made.  Express  admis- 
sions may  be  made  of  matters  of  fact  only. 

The  usual  mode  of  making  an  express  ad- 
mission in  pleading  is,  after  saying  that  the 
plaintiff  ought  not  to  have  or  maintain  his 
action,  etc.,  to  proceed  thus,  "Because  he 
says  that,  although  it  be  true  that,"  etc.,  re- 
peating such  of  the  allegations  of  the  ad- 
verse party  as  are  meant  to  be  admitted ; 
Lawes,  Civ.  PI.  143,  144.  See  1  Chitty,  PI. 
600;    Archb.  Civ.  PI.  215. 

Pleadings  which  have  been  withdrawn 
from  a  court  of  law  may  be  offered  in  evi- 
dence subject  to  explanation,  to  prove  ad- 
missions of  the  pleader:  Soaps  v.  Eichberg, 
42  111.  App.  375 ;  but  admissions  contained  in 
an  original  answer  are  not  conclusive,  where 
an  amended  answer  has  been  filed  excluding 
such  matter;  Baxter  v.  R.  Co.  (Tex.)  22  S. 
W.  1002.  The  plea  of  the  general  issue  ad- 
mits the  corporate  existence  of  the  plaintiff 
corporation ;  Bailey  v.  Bank,  127  111.  332,  19 
N.  E.  695.  In  many  states,  in  a  suit  against 
a  firm  or  corporation,  the  partnership  or  cor- 
porate existence  is  taken  as  admitted  unless 
denied  by  affidavit  filed  with  the  plea.  'Where 
complainant  sets  a  plea  down  for  argument, 
he  admits  its  truth,  but  denies  its  sufficiency ; 
Burrell  v.  Haekley,  35  Fed.  833.  Allegations 
of  the  complaint  not  denied  by  the  answer 
are  to  be  taken  as  true ;  Robertson  v.  Per- 
kins, 129  U.  S.  233,  9  Sup.  Ct  279,  32  L  Ed. 
686.  Where  two  defences  are  set  up,  a  de- 
nial in  one  is  qualified  by  an  admission  in 
the  other ;  Northern  Pac.  R.  Co.  v.  Paine, 
119  U.  S.  564,  7  Sup.  Ct.  323,  30  L.  Ed.  513. 
See  Confession  and  Avoidance. 

ADMITTANCE.  The  act  of  giving  posses- 
sion of  a  copyhold  estate.  It  is  of  three 
kinds:  namely,  upon  a  voluntary  grant  by 
the   lord,    upon   a   surrender  by   the  former 


tenant,  and  upon  descent  2  Bla.  Com.  366. 
See  Copyhold. 

ADMITTEND0  CLERIC0.  An  old  Eng- 
lish writ  issuing  to  the  bishop  to  establish 
the  right  of  the  Crown  to  make  a  presenta- 
tion to  a  benefice. 

ADMITTEND0  IN  S0CIUM.  A  writ  as- 
sociating certain  persons  to  justices  of  as- 
size.    CowelL 

ADM0NITI0  TRINA.  The  three  fold 
warning  given  to  a  prisoner  who  stood  mute, 
before  he  was  subjected  to  peine  forte  et 
dure  (q.  v.). 

ADMONITION.  A  reprimand  from  a  judge 
to  a  person  accused,  on  being  discharged, 
warning  him  of  the  consequences  of  his  con- 
duct, and  intimating  to  him  that,  should  he 
be  guilty  of  the  same  fault  for  which  he  has 
been  admonished,  he  will  be  punished  with 
greater  severity.  Merlin,  Rtpert.  The  ad- 
monition was  authorized  as  a  species  of  pun- 
ishment for  slight  misdemeanors. 

AD N EPOS.  The  son  of  a  great-great- 
grandson.     Calvinus,  Lex. 

ADNEPTIS.  The  daughter  of  a  great- 
great-granddaughter.    Calvinus,  Lex. 

ADN0TATI0  (Lat  notare).  A  subscrip- 
tion or  signing. 

In  the  civil  law,  casual  homicide  was  excused  by 
the  indulgence  of  the  emperor,  signed  with  his  own 
sign-manual,  called  adnotatio;  Code,  9.  16.  5;  4 
Bla.    Com.  187.     See  Rescript. 

ADOLESCENCE.  That  age  which  fol- 
lows puberty  and  precedes  the  age  of  ma- 
jority. It  commences  for  males  at  fourteen, 
and  for  females  at  twelve  years  completed, 
and  continues  until  twenty-one  years  com- 
plete.    Wharton. 

ADOPTION.  The  act  by  which  a  person 
takes  the  child  of  another  into  his  family, 
and  treats  him  as  his  own. 

A  juridical  act  creating  between  two  per- 
sons certain  relations,  purely  civil,  of  pater- 
nity and  filiation.     6  Demolombe,  §  1. 

Adoption  was  practised  in  the  remotest  antiquity. 
Cicero  asks,  "Quod  est  jus  adoptionis?  nempe  ut  is 
adoptet,  qui  neque  procreare  jam  liberos  posstt,  et 
cum  potuerit,  sit  expertus."  At  Athens,  he  who  had 
adopted  a  son  was  not  at  liberty  to  marry  without 
the  permission  of  the  magistrates.  Gaius,  Ulpian, 
and  the  Institutes  of  Justinian  only  treat  of  adop- 
tion as  an  act  creating  the  paternal  power.  Orig- 
inally, the  object  of  adoption  was  to  introduce  a 
person  into  the  family  and  to  acquire  the  paternal 
power  over  him.  The  adopted  took  the  name  of  the 
adopter,  and  only  preserved  his  own  adjectively,  as 
Scipio  Mmilianus ;  Ccesar  Octavianus,  etc.  Accord- 
ing to  Cicero,  adoptions  produced  the  right  of  suc- 
ceeding to  the  name,  the  property,  and  the  lares: 
"hereditates  nominis,  pecunias,  sacrorum  secutce 
sunt;"    Pro  Dom.  §  13. 

The  first  mode  of  adoption  was  in  the  form  of  a 
law  passed  by  the  comitia  curiata.  Afterwards,  it 
was  effected  by  the  mancipatio,  alienatio  per  ces  et 
libram,  and  the  in  jure  cessio ;  by  means  of  the 
first  the  paternal  authority  of  the  father  was  dis- 
solved, and  by  the  second  the  adoption  was  complet- 
ed. The  mancipatio  was  a  solemn  sale  made  to  the 
emptor  in  presence  of  five  Roman  citizens  (who  rep- 
resented the  five  classes  of  the  Roman  people),  and 


ADOPTION 


147 


ADOPTION 


a  libripens,  or  scalesman,  to  weigh  the  piece  of 
copper  -which  represented  the  price.  By  this  6ale 
the  person  sold  became  subject  to  the  viancipium  of 
the  purchaser,  who  then  emancipated  him  ;  where- 
upon he  fell  again  under  the  paternal  power  ;  and 
In  order  to  exbaust  it  entirely  it  was  necessary  to 
repeat  the  mancipatio  three  times:  si  pater  fllium 
ter  venumdabit,  fllius  a  patre  liber  esto.  After  the 
paternal  power  was  thus  dissolved,  the  party  who 
desired  to  adopt  the  son  instituted  a  fictitious  suit 
against  the  purchaser  who  held  him  in  mancipium, 
alleging  that  the  person  belonged  to  him  or  was 
subject  to  his  paternal  power ;  the  defendant  not 
denying  the  fact,  the  praetor  rendered  a  decree  ac- 
cordingly, which  constituted  the  cessio  in  jure,  and 
completed  the  adoption.  Adoptantur  autem,  cum 
a  parente  in  cujus  potestate  sunt,  tertia  mancipa- 
tione  in  jure  ceduntur,  atque  ab  eo,  qui  adoptat, 
apud  eum  apud  quern  legis  actio  est,  vindicantur; 
Gell.  5.  19. 

Towards  the  end  of  the  Republic  another  mode  of 
adoption  had  been  introduced  by  custom.  This  was 
by  a  declaration  made  by  a  testator,  in  his  will,  that 
he  considered  the  person  whom  he  wished  to  adopt 
as  his  son:  In  this  manner  Julius  Caesar  adopted 
Octavius. 

It  is  said  that  the  adoption  of  which  we  have  been 
speaking  was  limited  to  persons  alieni  juris.  But 
there  was  another  species  of  adoption,  called  adro- 
gation, which  applied  exclusively  to  persons  who 
were  sui  juris.  By  the  adrogation  a  pater-familias, 
with  all  who  were  subject  to  his  patria  potestas,  as 
well  as  his  whole  estate,  entered  into  another  fam- 
ily, and  became  subject  to  the  paternal  authority  of 
the  chief  of  that  family.  Quce  species  adoptionis 
dicitur  adrogatio,  quia  et  is  qui  adoptat  rogatur,  id 
est  interrogatur,  an  velit  eum  quern  adopturus  sit 
justum  sibi  filium  esse;  et  is,  qui  adoptatur  roga- 
tur an  id  fieri  patiatur;  et  populus  rogatur  an  id 
fieri  jubeat;  Gaius,  1.  99.  The  formulas  of  these  in- 
terrogations are  in  Aul.  Gell.  (see  Hunter,  Rom. 
Law  205):  "Velitis,  jubeatis,  Quirites,  uti  L.  Va- 
lerius L.  Titio  tarn  jure  legeque  filius  sibi  sict, 
quam  si  ex  eo  patre  matreque  familias  ejus  natus 
esset,  utique  ei  vita  necisque  in  eo  potestas  siet 
uti  pariendo  filio  est;  hoc  ita  ut  dixi  vos,  Quirites, 
rogo."  This  public  and  solemn  form  of  adoption 
remained  unchanged,  with  regard  to  adrogation, 
until  the  time  of  Justinian:  up  to  that  period  It 
could  only  take  place  populi  auctoritate.  Accord- 
ing to  the  Institutes,  1.  11.  1,  adrogation  took  place 
by  virtue  of  a  rescript  of  the  emperor, — principali 
rescripto,  which  only  issued  causa  cognita;  and  the 
ordinary  adoption  took  place  in  pursuance  of  the 
authorization  of  the  magistrate, — imperio  magistra- 
tus.  The  effect  of  the  adoption  was  also  modified 
in  such  a  manner,  that  if  a  son  was  adopted  by  a 
stranger,  extranea  persona,  he  preserved  all  the 
family  rights  resulting  from  his  birth,  and  at  the 
same  time  acquired  all  the  family  rights  produced 
by  the  adoption. 

There  is  no  law  of  adoption  in  Scotland; 
Bell's  Diet.;  nor  in  England.  In  the  latter 
country  any  renunciation  by  parents  of  their 
legal  rights  and  liabilities  is  a  mere  empty 
form ;    [1901]  2  K.  B.  3S5 ;    3  M.  &  G.  547. 

In  the  United  States,  adoption  exists  only 
by  statute;  In  re  Thorne,  155  N.  Y.  140,  49 
N.  E.  661;  Ballard  v.  Ward,  89  Pa.  358.  One 
of  the  first  states  to  introduce  it  was  Mas- 
sachusetts in  1851;  Ross  v.  Ross,  129  Mass. 
243,  37  Am.  Rep.  321.  Its  object  is  to  change 
the  succession  of  property  and  to  create  re- 
lations of  paternity  and  affiliation  not  be- 
fore existing;  Morrison  v.  Sessions'  Estate, 
70  Mich.  297,  38  N.  W.  249,  14  Am.  St.  Rep. 
500.  In  Louisiana  it  was  abolished  by  the 
Code  of  1S08,  art.  35,  p.  50.  See  Vidal  v. 
Commagere,  13  La.  Ann.  517,  but  the  right 
has   since   been   restored ;     Civ.    Code   1870, 


Art  214.     In   Clarkson  v.  Hatton,   143   Mo. 
47,  44  S.  W.  701,  39  L.  R.  A.  74s  • 
Rep.  635,  it  was  said  to  exist  in  ev< 
In  many  of  the  continental  states  of  Europe 
it   Is   .still  permitted   under   various  restric- 
tions. 

Adoption  is  Dever  sustained  by  mere  pre- 
sumption;   Saekman  v.   Campbell,  10   Wash. 
633,  39  Pac.  145;    In  re  Romero,  75  CaL 
17  Pac.  4:;4;   Henry   v.   Taylor,    If,   S.   L).  A-li. 

93  N.  W.  641;  even  though  the  child  had 
been  taken  from  an  asylum  at  the  age  of 
seven,  given  the  name  of  the  people  with 
whom  he  lived  and  treated  by  them  as  a 
son  until  majority;  In  re  Hayek,  49  Misc. 
391,  99  N.  Y.  Supp.  502;  and  where  the  meth- 
od of  adoption  is  provided  by  statute,  it  can 
be  done  in  no  other  way;    Taylor  v.  I>< 

81  Tex.  246,  16  S.  W.  1008 ;  Foley  v.  I 
61  111.  App.  577.  There  must  be  a  substan- 
tial compliance  with  all  statutory  require- 
ments; Smith  v.  Allen,  101  N.  Y.  478.  55  N. 
E.  1050 ;  Bresser  v.  Saarman,  112  la.  720,  84 
N.  W.  920. 

A  husband  and  wife  may  adopt  a  child 
jointly;  Markover  v.  Krauss,  132  Ind.  294,  31 
N.  E.'  1017,  17  L.  R.  A.  806  (but  not  if  the 
husband  be  insane;  Walts  v.  Dull,  1S4  111. 
86,  56  N.  E.  303,  75  Am.  St.  Rep.  141) ;  or  an 
unmarried  person  of  suitable  age:  Krug  v. 
Davis,  87  Ind.  590.  The  mere  fact  that  one 
is  in  the  senile  age  of  life  will  not  render 
him  incompetent  to  adopt  one  in  the  prime 
and  vigor  of  life ;  Collamore  v.  Learned,  171 
Mass.  99,  50  N.  E.  51S.  It  is  held  that  a  non- 
resident may  not  adopt  a  child ;  Knight  v. 
Gallaway,  42  Wash.  413,  85  Pac.  21.  An 
adult  may  be  an  adopted  child ;  Sheffield  v. 
Franklin,  151  Ala.  492.  44  South.  373,  VJ.  L. 
R.  A.  (N.  S.)  8S4,  125  Am.  St.  Rep.  :;7.  1", 
Ann.  Cas.  90;  In  re  Moran's  Estate.  151  Mo. 
555,  52  S.  W.  377;  Succession  of  Caldwell, 
114  La.  195,  38  South.  140,  108  Am.  St.  Rep. 
341 ;  Markover  v.  Krauss,  132  Ind.  294,  31 
N.  E.  1047,  17  L.  R.  A.  806;  Collamore  v. 
Learned,  171  Mass.  99,  50  N.  E.  518 ;  but  see 
contra;  Petition  of  Moore,  14  R.  I.  38;  Wil- 
liams v.  Knight,  IS  R.  I.  333,  27  Atl.  210. 
Where  the  word  "child"  was  used,  the  stat- 
ute was  held  not  to  include  an  adult. 

Usually  the  consent  of  the  natural  parents 
is  required;    Hopkins  v.  Antrobus,  120  la.  21, 

94  N.  W.  251;  In  re  Estate  of  McCormbk, 
108  Wis.  234,  84  N.  W.  14S,  SI  Am.  St.  Rep. 
S90;   Succession  of  Vollmer,  40  La.  Ann 

4  South.  254;  Luppie  v.  Winans,  37  N.  J.  Eq. 
245;  In  re  Bastin,  10  Pa.  Super.  Ct.  570; 
and  in  some  states  the  consent  of  the  child, 
when  he  is  above  a  certain  age ;  In  re 
son,  98  Cal.  531,  33  Pae.  460,  21  L.  R.  A.  380; 
Morrison  v.  Sessions"  Estate,  70  Mich.  297, 
38  N.  W.  249,  14  Am.  St.  Rep.  500. 

If  the  child  be  a  foundling,  the  parents 
have  no  authority  over  it  and  the  situation 
is  as  if  the  parents  were  dead;  Succession 
of  Dupre,  116  La.  1090,  41  South.  324.  A 
charitable  society  which  maintains  and  cares 


ADOPTION 


148 


ADOPTION 


for  a  child  may  consent  to  Its  adoption; 
Booth  v.  Van  Allen,  7  Phlla.  (Pa.)  401;  and 
a  probate  court  may  appoint  a  guardian  ad 
litem  with  power  to  give  or  withhold  con- 
sent to  adoption,  where  the  parents  are  un- 
known and  tbere  is  no  guardian  ;  In  re  Edds, 
137  Mass.  340.  To  constitute  abandonment 
there  must  be  some  act  on  the  part  of  the 
parent  evincing  a  settled  purpose  to  forego 
all  parental  duties;  Winans  v.  Luppie,  47 
N.  J.  Eq.  302,  20  Atl.  969. 

If  the  court  be  satisfied  that  the  proceed- 
ings are  for  his  benefit,  the  consent  of  a 
minor  will  be  presumed ;  Morrison  v.  Ses- 
sions' Estate,  70  Mich.  297,  38  N.  W.  249,  14 
Am.  St.  Rep.  500. 

The  surrender  of  the  child  by  its  parents 
constitutes  a  valuable  consideration  for  a 
promise  of  adoption;  Healy  v.  Simpson,  113 
Mo.  340,  20  S.  W.  S81;  Godine  v.  Kidd,  64 
Hun  5S5,  19  N.  Y.  Supp.  335;  Lynn  v.  Hock- 
aday,  162  Mo.  Ill,  61  S.  W.  8S5,  85  Am.  St. 
Hep.  4S0- 

Where  there  is  a  contract  for  adoption 
and  a  sufficient  consideration  therefor  on 
the  part  of  the  child,  such  contract  will  be 
enforced ;  McElvain  v.  McElvain,  171  Mo. 
214,  71  S.  W.  142;   8  Hawaii  40. 

When  an  infant  child  has  been  released 
to  another,  such  release  is  not  revocable 
without  sufficient  legal  reasons ;  Janes  v. 
Cleghorn,  54  Ga.  10;  and  unless  proceedings 
to  revoke  are  made  promptly,  it  will  be  fatal 
to  their  maintenance;  Brown  v.  Brown,  101 
Ind.  340. 

The  Tight  of  inheritance.  In  the  District 
of  Columbia  the  right  of  inheritance  is  not 
included  in  the  rights  acquired  by  adoption ; 
Moore  v.  Hoffman,  Fed.  Cas.  No.  9,764a; 
In  New  York  it  is;  Theobald  v.  Smith,  103 
App.  Div.  200,  92  N.  Y.  Supp.  1019.  In  Ohio 
an  adopted  child  inherits  from  the  adopting 
parent  but  not  through  him ;  Phillips  v.  Mc- 
Conica,  59  Ohio  St.  1,  51  N.  E.  445,  69  Am. 
St.  Rep.  753;  in  Illinois  such  child  can  take 
by  descent  only  from  the  person  adopting 
him  and  not  from  lineal  or  collateral  kin- 
dred of  the  adopting  parent;  Van  Matre  v. 
Sankey,  148  111.  536,  36  N.  E.  628,  23  L.  R.  A. 
665,  39  Am.  St.  Rep.  196;  Keegan  v.  Ger- 
aghty,  101  111.  26 ;  and  see  Van  Derlyn  v. 
Mack,  137  Mich.  146,  100  N.  W.  278,  66  L.  R. 
A.  437,  109  Am.  St.  Rep.  669,  4  Ann.  Cas. 
S79.  In  Pennsylvania  an  adopted  child  can 
not  take  under  a  devise  to  "children"  as  it 
is  not  a  child  by  nature;  Schafer  v.  Eneu, 
54  Pa.  304.  He  is  held  not  to  be  within  a 
conveyance  to  "bodily  heirs";  Balch  v.  John- 
son, 106  Tenn.  249,  61  S.  W.  289 ;  nor  is  he 
a  lineal  descendant ;  Com.  v.  Ferguson,  137 
Pa.  595,  20  Atl.  ST0,  10  L.  R.  A.  240;  or 
lineal  issue ;  Kerr  v.  Goldsborough,  150  Fed. 
289,  SO  C.  C.  A.  177.  The  word  "child"  in  a 
statute  relating  to  adoption  has  a  broader 
signification  than  "issue";  Virgin  v.  Mar- 
wick,  97  Me.  57S,  55  Atl.  520;  and  the  adopt- 
ed child  has  the  same  right  of  inheritance  as 


a  natural  child ;  id.  In  Massachusetts  an 
adopted  child  was  held  to  be  entitled  to  take 
from  the  deceased  son  of  one  of  the  adopting 
parents;  Stearns  v.  Allen,  183  Mass.  404,  67 
N.  E.  349,  97  Am.  St.  Rep.  441. 

The  right  of  inheritance  from  adoption 
arises  by  operation  of  law  from  the  acts  of 
the  parties  in  compliance  with  the  statute 
and  not  from  contract;  Jordan  v.  Abney,  97 
Tex.  296,  78  S.  W.  4S6. 

As  an  adopted  child  is  not  a  lineal  de- 
scendant, a  legacy  to  him  will  not  be  exempt- 
ed from  payment  of  the  collateral  inheri- 
tance tax;  Com.  v.  Ferguson,  137  Pa.  595, 
20  Atl.  870,  10  L.  R.  A.  240;  otherwise  in 
New  York  by  statute;  In  re  Butler,  58  Hun 
400,  12  N.  Y.  Supp.  201 ;  but  see  In  re  Bird's 
Estate,  11  N.  Y.  Supp.  895,  where  payment 
of  such  a  tax  was  required,  in  the  case  of 
a  legacy  to  the  child  of  an  adopted  child. 

The  adoptive  parent  may  disinherit  the 
child ;  Logan  v.  Lennix,  40  Tex.  Civ.  App. 
62,  88  S.  W.  364;  and  he  has  the  same  un- 
limited power  of  disposition  of  his  property 
that  a  natural  father  has ;  Burnes  v.  Burnes, 
132  Fed.  485. 

Adopting  parents  inherit  from  the  child  in 
preference  to  the  natural  parents;  Swick  v. 
Coleman,  218  111.  33,  75  N.  E.  807;  Paul  v. 
Davis,  100  Ind.  422;  see  Hyatt  v.  Pugsley, 
33  Barb.  (N.  Y.)  373 ;  Estate  of  Foley,  1  W. 
N.  C.  (Pa.)  301 ;  but  this  rule  is  not  always 
followed.  In  many  cases  the  estate  of  the 
deceased  child  goes  to  his  relatives  by  blood ; 
Upson  v.  Noble,  35  Ohio  St.  655;  Com.  v. 
Powel,  16  W.  N.  C.  (Pa.)  297;  Hole  v.  Rob- 
bins,  53  Wis.  514,  10  N.  W.  617 ;  Hill  v.  Nye, 
17  Hun  (N.  Y.)  457.  In  Pennsylvania,  al- 
though the  act  does  in  express  words  con- 
fer the  right  of  inheritance  upon  the  child 
from  the  adopting  parent,  the  latter  cannot 
inherit  from  the  adopted  child,  because  "the 
act  does  not  so  declare" ;  Com.  v.  Powel,  16 
W.  N.  C.  (Pa.)  297. 

A  child  adopted  in  one  state,  where  both 
it  and  its  adopted  parent  are  domiciled,  can 
inherit  land  in  another  state  having  sub- 
stantially similar  adoption  laws  and  per- 
mitting adopted  children  to  inherit;  Finley 
v.  Brown,  122  Tenn.  316,  123  S.  W.  359,  25 
L.  R.  A.  (N.  S.)  1285 ;  see  cases  in  65  L.  R.  A. 
1S6,  note;  contra,  Brown  v.  Finley,  157  Ala. 
424,  47  South.  577,  21  L.  R.  A.  (N.  S.)  679,  131 
Am.  St  Rep.  6S,  16  Ann.  Cas.  778. 

To  "enact"  implies  the  creating  anew  of  a 
law  which  did  not  exist  before ;  but  "adopt," 
no  doubt,  implies  the  making  that  their  own 
which  was  created  by  another,  as  the  adop- 
tion of  our  statute  laws  of  Great  Britain,  as 
they  stood,  by  the  Colonial  Government; 
Williams  v.  Bank,  7  Wend.  (N.  Y.)  539. 

The  word  "adoption"  in  a  state  constitu- 
tion providing  for  a  continuance  in  office  of 
judges  in  office  at  the  adoption  of  the  con- 
stitution means  when  it  is  fully  consummated 
and  complete — not  inchoate  and  imperfect; 
People  v.  Norton,  59  Barb.  (N.  Y.)  169. 


ADOPTION 


149 


ADULTERATION 


"The  primary  and  natural  signification  of 

the  word  adoption includes  both  take 

effect  and  in  force" ;  People  v.  Norton,  59 
Barb.   (N.  Y.)  169. 

ADPROMISSOR  (Lat  promittere).  One 
who  binds  himself  for  another ;  a  surety ;  a 
peculiar  species  of  fidejussor.    Calvinus,  Lex. 

The  term  is  used  in  the  same  sense  in  the 
Scotch  law.  The  cautionary  engagement  was 
undertaken  by  a  separate  act:  hence,  one 
entering  into  it  was  called  adpromissor 
(promisor  in  addition  to).  Erskine,  Inst.  3. 
3.  1. 

ADROGATION.  One  of  two  procedures 
for  adoption  under  the  Roman  Law,  i.  e.  by 
bill  (rogatio)  passed  by  the  comitia  cur  lata, 
with  the  formal  consent  of  the  intended  fa- 
ther and  son.  1  Roby,  Rom.  Priv.  Law  GO. 
See  Aooption. 

ADS.     See  Ad  Sectam. 

AD  SCRIPT  I  (Lat.  scribere).  Joined  to  by 
writing ;  ascribed ;  set  apart ;  assigned  to ; 
annexed  to. 

AD  SCRIPT  I  GLEB/E.  Slaves  who  served 
the  master  of  the  soil ;  who  were  annexed  to 
the  land,  and  passed  with  it  when  it  was  con- 
veyed.    Calvinus,  Lex. 

These  servi  adscripti  (or  adscriptitii)  glebes  held 
the  same  position  as  the  villeins  regardant  of  the 
Normans  ;    2  Bla.  Com.  93.     See  1  Poll.  &  Mait.  372. 

ADSCRIPTI  CM  (Lat.).  A  species  of  serfs 
or  slaves.    See  1  Poll.  &  Mait.  372. 

Those  persons  who  were  enrolled  and  lia- 
ble to  be  drafted  as  legionary  soldiers.  Cal- 
vinus, Lex. 

ADSESSORES  (Lat.  seder e).  Side  judges. 
Those  who  were  joined  to  the  regular  magis- 
trates as  assistants  or  advisers ;  those  who 
were  appointed  to  supply  the  place  of  the 
regular  magistrates  in  certain  cases.  Cal- 
vinus, Lex.    See  Assessors. 

ADSTIPULATOR.  In  Civil  Law.  One 
who  supplied  the  place  of  a  procurator  at 
a  time  when  the  law  refused  to  allow  stip- 
ulations to  be  made  by  procuration.  Sand. 
Inst.  354. 

ADULT.  In  Civil  Law.  A  male  infant 
who  has  attained  the  age  of  fourteen ;  a 
female  infant  who  has  attained  the  age  of 
twelve.     Domat.  Liv.  Prel.  tit.  2,  §  2,  n.  8. 

In  Common  Law.  One  of  the  full  age  of 
twenty-one.  Swanst  Ch.  553;  George  v. 
State,  11  Tex.  App.  95. 

ADULTER  (Lat).  One  who  corrupts;  one 
who  corrupts  another  man's  wife. 

Adulter  solidorum.  A  corrupter  of  metals; 
a  counterfeiter.     Calvinus,  Lex. 

ADULTER  A  (Lat).  A  woman  who  com- 
mits adultery.    Calvinus,  Lex. 

ADULTERATION.  The  act  of  corrupting 
or  debasing;  the  act  of  mixing  something 
impure  or  spurious  with  something  pure  or 
genuine,  or  an  inferior  article  with  a  superior 


one  of  the  same  kind.     See  16  ML  &  W.  644 ; 
State  v.  Norton,  24  N.  C.  40. 
See  Food  and  Drug  Laws. 

ADULTERATOR    (Lat.).     A  corrupter;    a 
counterfeiter. 
Adulterator  monetw.    A  forger.    Du  Cange. 

ADULTERINE.  The  issue  of  adulterous 
intercourse. 

Those  are  not  deemed  adulterine  who  are 
begotten  of  a  woman  openly  married  through 
ignorance  of  a  former  wife  being  alive. 

Adulterine  children  are  regarded  more  un- 
favorably than  the  illegitimate  offspring  of 
single  persons.  The  Roman  law  refused  the 
title  of  natural  children,  and  the  canon  law 
discouraged  their  admission  to  orders. 

ADULTERINE  GUILDS.  Companies  of 
traders  acting  as  corporations,  without  char- 
ters, and  paying  a  fine  annually  for  the  priv- 
ilege of  exercising  their  usurped  privi 
Smith,  Wealth  of  Nat.  book  1,  c.  10;  Whar- 
ton, Diet. 

ADULTERIUM.  A  fine  imposed  for  the 
commission  of  adultery.  Barrington,  Stat 
62,  n. 

ADULTERY.  The  voluntary  sexual  inter- 
course of  a  married  person  with  a  person 
other  than  the  offender's  husband  or  wife. 
Bishop,  Mar.  &  D.  §  415;  Moore  v.  Com.,  6 
Mete.  (Mass.)  243,  39  Am.  Dec.  724;  State  v. 
Hutchinson,  36  Me.  261;  Cook  v.  State,  11 
Ga.  56,  56  Am.  Dec.  410;  Hull  v.  Hull,  2 
Strobh.  Eq.  (S.  C.)  174. 

Unlawful  voluntary  sexual  intercourse  be- 
tween two  persons,  one  of  whom  at  least  is 
married,  is  the  essence  of  the  crime  in  all 
cases.  In  general,  it  is  sufficient  if  either 
party  is  married  ;  and  the  crime  of  the  mar- 
ried party  will  be  adultery,  while  that  of  the 
unmarried  party  will  be  fornication ;  Re- 
spublica  v.  Roberts,  1  Teates  (Pa.)  6 ;  id. ;  2 
Dall.  (Pa.)  124,  1  L.  Ed.  316;  State  v.  Par- 
ham,  50  N.  C.  416;  Smitherman  v.  St.. 
Ala.  23;  State  v.  Thurstin,  35  Me.  205,  58 
Am.  Dec.  69."3;  Cum.  v.  Cregor,  7  Gratt  (Va.) 
591;  Com.  v.  Lafferty,  6  Gratt.  (Va.)  673; 
Banks  v.  State,  96  Ala.  7S,  11  South.  404; 
Hunter  v.  U.  S.,  1  Pinney  (Wis.)  91,  .".'.>  Am. 
Dec.  277.  In  Massachusetts,  however,  and 
some  of  the  other  states,  by  statute,  if  the 
woman  be  married,  though  the  man  be  unmar- 
ried, he  is  guilty  of  adultery;  Com.  v.  <  'all. 
21  Pick.  (Mass.)  509,  ::2  Am.  Dec  284,  and 
note;  Com.  v.  Elwell,  2  Mete.  190,  39  Am. 
Dec.  398  (where  the  man  was  ignorant  that 
the  woman  was  married)  :  Suite  v.  Pearce,  2 
Blackf.  (Ind.)  318;  Wasden  v.  State,  IS  Ga. 
264;  State  v.  Wallace,  9  N.  IT.  516;  aud  see 
State  v.  Lash,  1(!  N.  J.  I..  380,  32  Am.  Dec. 
:;97:  Mosser  v.  Mosser,  29  Ala.  313.  In  Con- 
necticut and  some  other  states,  it  seems  that 
to  constitute  the  offence  of  adultery  it  is 
necessary  that  the  uoman  should  be  mar- 
ried ;  that  if  the  man  only  is  married,  it  is 
not  the  crime  of  adultery  at  common  law  or 


ADULTERY 


150 


ADULTERY 


under  the  statute,  so  that  an  indictment  for 
adultery  could  be  sustained  against  either 
party ;  though  within  the  meaning  of  the 
law  respecting  divorces  it  is  adultery  in  the 
man.  Cohabitation  with  a  man  after  mar- 
riage is  not  adultery,  unless  the  woman 
knows  of  such  marriage ;  Banks  v.  State,  90 
Ala.  78,  11  South.  404 ;  Vaughan  v.  State,  83 
Ala.  55,  3  South.  530 ;  it  is  not  necessary  to 
prove  emission  on  prosecution  for  adultery ; 
Com.  v.  Hussey,  157  Mass.  415,  32  N.  E.  362. 

A  charge  of  open  and  notorious  adultery 
is  not  sustained  by  proof  of  occasional  il- 
licit intercourse;  Wright  v.  State,  5  Blackf. 
(Ind.)  358,  35  Am.  Dec.  126,  and  note ;  State 
v.  Crowner,  56  Mo.  147;  Brevaldo  v.  State, 
21  Fla.  7S9;  Searls  v.  People,  13  111.  597; 
nor  by  merely  living  together  as  man  and 
wife  without  any  circumstances  to  cause 
scandal  or  suspicion ;  People  v.  Salmon,  148 
Cal.  303,  83  Pac.  42,  2  L.  R.  A.  (N.  S.)  1186, 
113  Am.  St.  Rep.  268 ;  Schoudel  v.  State,  57 
N.  J.  L.  209,  30  Atl.  598.  While  ordinarily 
marriage  may  be  proved  by  admission  or 
matrimonial  cohabitation  there  is  some  con- 
flict as  to  whether  the  fact  of  marriage  can 
be  proved  by  admission  of  a  party  so  as  to 
render  him  guilty  of  a  crime,  as  of  adultery. 
In  many  courts  such  evidence  is  held  insuffi- 
cient; People  v.  Humphrey,  7  Johns.  (N.  Y.) 
314;  State  v.  Roswell,  6  Conn.  446;  State 
v.  Medbury,  8  R,  I.  543;  People  v.  Isham, 
109  Mich.  72,  67  N.  W.  819;  State  v.  Arm- 
strong, 4  Minn.  335  (Gil.  251) ;  but  the  weight 
of  authority  is  against  that  rule;  Cameron 
v.  State,  14  Ala.  546,  48  Am.  Dec.  Ill,  and 
note;  State  v.  Libby,  44  Me.  469,  69  Am. 
Dec.  115 ;  Com.  v.  Holt,  121  Mass.  61 ;  Cook 
v.  State,  11  Ga.  53,  56  Am.  Dec.  410;  Mur- 
phy v.  State,  50  Ga.  150;  State  v.  Sanders, 
30  la.  582. 

It  was  not,  by  itself,  indictable  at  common 
law;  4  Bla.  Com.  65;  Whart.  Cr.  Law  1717; 
Anderson  v.  Com.,  5  Rand.  (Va.)  627,  16  Am. 
Dec.  776 ;  Com.  v.  Isaacs,  5  Rand.  (Va.)  634 ; 
but  was  left  to  the  ecclesiastical  courts  for 
punishment.  In  the  United  States  it  is  usu- 
ally punishable  by  fine  and  imprisonment 
under  various  statutes. 

Parties  to  the  crime  may  be  jointly  in- 
dicted ;  Com.  v.  Elwell,  2  Mete.  (Mass.)  190, 
35  Am.  Dec.  39S ;  or  one  may  be  convicted 
and  punished  before  or  without  the  convic- 
tion of  the  other;  2  Whart.  Cr.  L.  §  1730; 
"but  when  one  has  been  previously  tried  and 
acquitted,  or  when  both  are  tried  together 
and  the  verdict  is  for  one,  the  other  cannot 
be  found  guilty;"  State  v.  Mainor,  28  N.  C 
340;  State  v.  Parham,  50  N.  C.  416;  contra; 
State  v.  Caldwell,  8  Bast  (Tenn.)  576 ;  Alon- 
zo  v.  State,  15  Tex.  App.  378,  49  Am.  Rep. 
207;  Solomon  v.  State,  39  Tex.  Cr.  R.  140, 
45  S.  W.  706;  and  see  12  Harv.  L.  R.  282. 
The  adultery  of  the  wife  will  not  avoid  a 
previous  voluntary  settlement ;  Lister  v.  Lis- 
ter, 35  N.  J.  Eq.  49 ;  but  if,  in  contemplation 
of  future  adultery,  she  induce  a  gift  of  prop- 


erty, it  is  revocable;  2  De  G.  F.  &  J.  481; 
Evans  v.  Evans,  118  Ga.  890,  45  S.  E.  612, 
98  Am.  St.  Rep.  ISO.  The  equitable  jurisdic- 
tion is  founded  on  fraud  in  concealing  a  ma- 
terial fact  which,  by  reason  of  the  relation, 
there  was  a  duty  to  disclose;  17  Harv.  L. 
Rev.  202.  Where  the  petitioner  in  divorce 
was  only  able  to  prove  acts  of  familiarity, 
suggestive  of  adultery,  before  the  date  of 
the  petition,  he  was  permitted  to  prove  ac- 
tual adultery  after  that  date  as  showing 
what  inferences  should  be  drawn  from  the 
prior  conduct ;    [1900]  P.  63. 

As  to  civil  remedies,  see  Ckim.  Con. 

ADVANCE.  To  supply  beforehand;  to 
furnish  something  before  an  equivalent  is 
received ;  to  loan.  Rogers  v.  Bank,  108  N. 
C.  574,  13  S.  E.  245. 

ADVANCEMENT.  A  gift  by  anticipation 
from  a  parent  to  a  child  of  the  whole  or  a 
part  of  what  it  is  supposed  such  child  will 
inherit  on  the  death  of  the  parent.  Hengst's 
Estate,  6  Watts  (Pa.)  87 ;  Sampson  v.  Samp- 
son, 4  S.  &  R.  (Pa.)  333 ;  Osgood  v.  Breed's 
Heirs,  17  Mass.  358;  Jackson  v.  Matsdorf, 
11  Johns.  (N.  Y.)  91,  6  Am.  Dec.  355 ;  Parish 
v.  Rhodes,  Wright  (Ohio)  339;  Dames'  Ex'r 
v.  Lloyd,  82  Va.  859,  5  S.  E.  87,  3  Am.  St 
Rep.  123.  The  doctrine  applies  only  to  in- 
testate estates,  and  proceeds  upon  the  pre- 
sumption, in  the  absence  of  a  will,  that  the 
gift  is  in  anticipation  of  the  parent's  death, 
and  that  he  intended  equality ;  but  a  subse- 
quent disposal  by  will  rebuts  the  presump- 
tion ;  Marshall  v.  Rench,  3  Del.  Ch.  239,  per 
Bates,  Ch. 

But  an  advancement,  properly  so  called, 
though  a  thing  known  under  certain  ancient 
customs  in  England,  is  now  a  creature  of 
statute,  and,  by  the  statute,  is  confined  to 
intestate  estates,  and  never  applied  to  lands 
devised;  Marshall  v.  Rench,  3  Del.  Ch.  239, 
253,  where  the  opinion  states  fully  the  Eng- 
lish statutes  and  policy. 

An  advancement  can  only  be  made  by  a 
parent  to  a  child;  Callender  v.  McCreary, 
4  How.  (Miss.)  356;  Shiver  v.  Brock,  55  N. 
C.  137;  Bisph.  Eq.  84;  or  in  some  states,  by 
statute,  to  a  grandchild ;  4  Kent  419 ;  Dick- 
inson v.  Lee,  4  Watts  (Pa.)  82,  28  Am.  Dec. 
GS4 ;  4  Ves.  437.  It  must  be  ejusdem  gener- 
is; 3  Yo.  &  Coll.  397;  as  is  the  rule  with  re- 
spect to  ademption,  q.  v. 

It  is  held  that  a  gift  to  a  husband  by 
wife's  father  is  considered  an  advancement 
to  the  wife;  Bruce  v.  Slemp,  82  Va.  352,  4 
S.  E.  692;  and  that  it  is  a  question  of  fact, 
where  decedent  in  his  lifetime  made  a  con- 
veyance to  his  daughter-in-law ;  Palmer  v. 
Culbertson,  65  Hun  625,  20  N.  Y.  Supp.  391. 

The  intention  of  the  parent  is  to  decide 
whether  a  gift  is  intended  as  an  advance- 
ment; Lawson's  Appeal,  23  Pa.  85;  Jackson 
v.  Matsdorf,  11  Johns.  (N.  Y.)  91,  6  Am.  Dec. 
355;  McPaw  v.   Blewit,  2  McCord    Ch.   (S. 


ADVANCEMENT 


151 


ADVANCES 


C.)    103.     See  Weatherhead  v.  Field,  26  VL 
665. 

A  mere  gift  is  presumptively  an  advance- 
ment, but  the  contrary  intention  may  be 
shown;  Brown  v.  Burke,  22  Ga.  574;  Grat- 
tan  v.  Grattan,  18  111.  167,  65  Am.  Dec.  726 ; 
Lawrence  v.  Mitchell,  48  N.  C.  190;  Hatch 
v.  Straight,  3  Conn.  31,  8  Am.  Dec.  152; 
Scott  v.  Scott,  1  Mass.  527;  Bruce  v.  Slemp, 
82  Va.  352,  4  S.  E.  602 ;  Culp  v.  Wilson,  133 
Ind.  204,  32  N.  E.  928.  The  maintenance  and 
education  of  a  child,  or  the  gift  of  money 
without  a  view  to  a  portion  or  settlement  in 
life,  is  not  deemed  an  advancement ;  Ison 
v.  Ison,  5  Rich.  Eq.  (S.  C.)  15;  Sherwood  v. 
Smith,  23  Conn.  516.  If  security  is-  taken  for 
repayment,  it  is  a  debt  and  not  an  advance- 
ment;  High's  Appeal,  21  Pa.  283;  West  v. 
Bolton,  23  Ga.  531 ;  Barton  v.  Rice,  22  Pick. 
(Mass.)  508;  and  see  Procter  v.  Newhall,  17 
Mass.  93 ;  Osgood  v.  Breed's  Heirs,  17  Mass. 
359;  Stewart  v.  State,  2  Harr.  &  G.  (Md.) 
114.  Payment  of  a  son's  debts  will  be  con- 
sidered an  advancement ;  Steele  v.  Frierson, 
85  Tenn.  430,  3  S.  W.  649;  or  the  payment 
by  the  father  as  surety  of  the  notes  of  his 
son  who  had  no  estate;  Reynolds'  Adm'r  v. 
Reynolds,  92  Ky.  556,  18  S.  W.  517. 

No  particular  formality  is  requisite  to  in- 
dicate an  advancement ;  1  Madd.  Ch.  Pr. 
507;  4  Kent  418;  Brown  v.  Brown,  16  Vt 
197;  unless  prescribed  by  statute;  4  Kent 
418;  Hartwell  v.  Rice,  1  Gray  (Mass.)  587; 
Mowry  v.  Smith,  5  R.  I.  255 ;  Sayles  v.  Bak- 
er, 5  R,  I.  457. 

Where  a  father  divides  his  property  equal- 
ly between  two  sons,  conveying  to  one  his 
share,  it  is  considered  an  advancement  where 
no  deed  is  delivered  to  the  other;  O'Connell 
v.  O'Connell,  73  la.  733,  36  N.  W.  764. 

The  effect  of  an  advancement  is  to  reduce 
the  distributive  share  of  the  child  by  the 
amount  so  received,  estimating  its  value  at 
the  time  of  receipt;  Oyster  v.  Oyster,  1  S.  & 
R.  (Ta.)  422;  Nelson  v.  Wyan,  21  Mo.  347; 
Burton  v.  Dickinson,  3  Yerg.  (Tenn.)  112; 
War  field  v.  Warfield,  5  Harr.  &  J.  (Md.) 
459;  Beckwith  v.  Butler,  1  Wash.  (Va.) 
224;  Hall  v.  Davis,  3  Pick.  (Mass.)  450;  in 
some  states  the  child  has  his  option  to  retain 
the  advancement  and  abandon  his  distribu- 
tive share;  Clark  v.  Fox,  9  Dana  (Ky.)  193; 
Taylor  v.  Reese,  4  Ala.  121 ;  to  abandon  his 
advancement  and  receive  his  equal  share  of 
the  estate;  Knight  v.  Oliver,  12  Gratt.  (Va.) 
33;  Andrews  v.  Hall,  15  Ala.  85;  Phillips  v. 
McLaughlin,  20  Miss.  592;  Grattan  v.  Grat- 
tan, 18  111.  167,  65  Am.  Dec.  726;  but  this 
privilege  exists  only  in  case  of  intestacy ; 
Newman  v.  Wilbourne,  1  Hill,  Ch.  (S.  C.)  10; 
Sturdevant  v.  Goodrich,  3  Yerg.  (Tenn.)  95; 
Howland  v.  Heckscher,  3  Sandf.  Ch.  (N.  Y.) 
520;  Hawley  v.  James,  5  Paige,  Ch.  (N.  Y.) 
450;  Ves.  Ch.  323.     See  Ademption;  Gift. 

It  is  not  chargeable  with  interest ;  Miller's 
Appeal.  31  Pa.  337;  until  the  settlement  of 
the  estate. 


ADVANCES.  Payments  made  to  the  own- 
er of  goods  by  a  factor  or  agent,  who  has 
or  is  to  have  possession  of  the  goods  for  the 
purpose  of  selling   them. 

An  agent  is  entitled  to  reimburse  himself 
from  the  proceeds  of  the  goods,  and  has  a 
lien  on  them  for  the  amount  paid ;  Liverm. 
Ag.  38;  Merchants'  National  Lank  v.  Pope, 
19  Or.  35,  26  Par.  622;  and  an  action  over 
for  the  balance,  against  his  principal,  if  the 
sales  are  insufficient  to  cover  the  advances ; 
Parker  v.  Brancker,  22  Pick.  (Mass.)  40; 
Marfield  v.  Goodhue,  3  N.  Y.  62;  Frothing- 
ham  v.  Everton,  12  N.  H.  239;  Harrison, 
Frazier  &  Co.  v.  Mora,  150  Pa.  481,  24  Atl. 
705;  Eichel  v.  Sawyer,  44  Fed.  845;  but  he 
must  first  exhaust  the  property  in  his  hands; 
Balderston  v.  Rubber  Co.,  18  R.  I.  338,  27 
Atl.  507,  49  Am.  St.  Rep.  772.  Where  to  save 
himself  from  loss  the  factor  buys  the  goods 
himself,  the  consignor  may  elect  whether 
he  will  ratify  the  sale  or  demand  the  value 
of  the  goods;  Sims  v.  Miller,  37  S.  C.  402, 
16  S.  E.  155,  34  Am.   St.  Rep.  762. 

See  Agent;  Factor. 

In  the  case  of  a  contract  for  the  manu- 
facture and  sale  of  merchandize,  a  stipula- 
tion to  advance  money  on  account  means  to 
supply  beforehand,  to  loan  before  the  work 
is  done  or  the  goods  made;  Powder  Co.  v. 
Burkhardt,  97  U.   S.  110,  24  L.  Ed.  97.3. 

It  also  refers  to  a  case  where  money  is 
paid  before,  or  in  advance  of,  the  proper 
time  of  payment;  it  may  characterize  a  loan 
or  a  gift,  or  money  advanced  to  be  repaid 
conditionally;  Vail  v.  Vail,  10  Barb.  (N.  Y.) 
73. 

Though  in  its  strict  legal  sense  the  word 
does  not  mean  gifts  or  advancements,  but 
rather  a  sort  of  loan,  in  its  ordinary  and 
usual  sense  it  includes  both  loans  and  ^rif ts — 
rather  the  former  than  the  latter;  Prouty  v. 
Swift,  51  N.  Y.  597;  Nolan's  Ex'rs  v.  Bolton, 
25  Ga.  352. 

As  to  mortgages  to  secure  future  advance- 
ments, see  Mortgage. 

ADVANTAGE.  Preference  or  priority. 
United  States  v.  Preston,  4  Wash.  446.  Fed. 
Cas.  No.  10.0S7. 

ADVENA  (Lat.  venire).  In  Roman  Law. 
One  of  foreign  birth,  who  has  left  his  own 
country  and  settled  elsewhere,  and  who  has 
not  acquired  citizenship  in  bis  new  locality; 
often  called  albanus.     Du  Gange. 

ADVENT.  The  period  commencing  on 
Sunday  falling  on  St.  Andrew's  day  (30th 
of  November),  or  the  nearest  Sunday  to  it. 
and  continuing  till  Christmas.     Blount 

It  took  its  name  from  the  fact  that  it  imm< 
preceded   the   day    set    apart    to    commemorate    the 
birth  or  coming  (advent)  of  Christ.     Cowel  ;    Termes 
de  la  Ley. 

Formerly,  during  this  period,  "all  conten- 
tions at  law  were  omitted."  But,  by  statute 
13  Edw.  1.  i  Westui.  2)  c  48,  certain  actions 
were  allowed. 


ADVENTITIOUS 


152 


ADVERSE  POSSESSION 


ADVENTITIOUS  (Lat.  advent  it  ius). 
That  which  comes  incidentally,  or  out  of  the 
regular  course. 

ADVENTITIUS  (Lat).  Foreign;  coming 
from  an  unusual  source. 

Adventitia  bona  are  goods  which  fall  to  a 
man  otherwise  than  by  inheritance. 

Adventitia  dos  is  a  dowry  or  portion  given 
by  some  friend  other  than  the  parent 

ADVENTURE.  Sending  goods  abroad  un- 
der charge  of  a  supercargo  or  other  agent 
which  are  to  be  disposed  of  to  the  best  ad- 
vantage for  the  benefit  of  the  owners. 

The  goods  themselves  so  sent. 

It  is  used  synonymously  with  "perils" ;  It 
Is  often  used  by  writers  to  describe  the  en- 
terprise or  voyage  as  a  "marine  adventure" 
insured  against;  Moores  v.  Louisville  Un- 
derwriters, 14  Fed.  233.  See  Insurance; 
Bill  of  Adventure. 

ADVENTURER.  One  who  undertakes  un- 
certain or  hazardous  actions  or  enterprises. 
It  is  also  used  to  denote  one  who  seeks  to 
advance  his  own  interests  by  unscrupulous 
designs  on  the  credulity  of  others.  It  has 
been  held  that  to  impute  that  a  person  is  an 
adventurer  is  a  libel ;  18  L.  J.  O.  P.  241. 

ADVERSE  CLAIM.  See  Adverse  Posses- 
sion. 

ADVERSE  ENJOYMENT.  The  possession 
or  exercise  of  an  easement  or  privilege  un- 
der a  claim  of  right  against  the  owner  of 
the  land  out  of  which  the  easement  is  de- 
rived.    2  Washb.  R.  P.  42. 

Such  an  enjoyment,  if  open,  4  M.  &  W. 
500;  4  Ad.  &  B.  369,  and  continued  unin- 
terruptedly; Powell  v.  Bagg,  8  Gray  (Mass.) 
441,  69  Am.  Dec.  262;  Colvin  v.  Burnet,  17 
Wend.  (X.  Y.)  564 ;  Pierre  v.  Fernald,  26  Me. 
440,  46  Am.  Dec.  573;  Bullen  v.  Runnels, 
2  N.  H.  255,  9  Am.  Dec.  55 ;  Watt  v.  Trapp, 
2  Rich.  (S.  C.)  136 ;  11  Ad.  &  E.  7SS ;  Grace 
Methodist  Episcopal  Church  v.  Dobbins,  153 
Pa.  294,  25  Atl.  1120,  34  Am.  St.  Rep.  706, 
for  the  term  of  twenty  years,  raises  a  con- 
clusive presumption  of  a  grant,  provided  that 
there  was,  during  the  time,  some  one  in  ex- 
istence, in  possession  and  occupation,  who 
was  not  under  disability  to  resist  the  use; 
'2  Washb.  R.  P.  48.  See  Presumption;  Ease- 
ment ;    Adverse  Possession. 

ADVERSE  POSSESSION.  The  enjoyment 
of  land,  or  such  estate  as  lies  in  grant,  un- 
der such  circumstances  as  indicate  that  such 
enjoyment  has  been  commenced  and  contin- 
ued under  an  assertion  or  color  of  right  on 
the  part  of  the  possessor.  3  East  394 ;  Wal- 
lace v.  Duffield,  2  S.  &  R.  (Pa.)  527,  7  Am. 
Dec.  660 ;  French  v.  Pearce,  8  Conn.  440,  21 
Am.  Dec.  680;  Robinson  v.  Douglass,  2  Aik. 
(Vt)  364 ;  Smith  v.  Burtis,  9  Johns.  (N.  Y.)  174; 
Jackson  v.  Huntington,  5  Pet.  (U.  S.)  402,  8 
L.  Ed.  170;  Bowles  v.  Sharp,  4  Bibb  (Ky.) 
550.     See  15  L.  R.  A.  (N.  S.)  1178,  note. 


A  prescriptive  title  rests  upon  a  different 
principle  from  that  of  a  title  arising  under 
the  statute  of  limitations.  Prescription  op- 
erates as  evidence  of  a  grant  and  confers  a 
positive  title;  Cruise,  Dig.  tit  31,  ch.  1,  § 
4.  The  statute  of  limitations  operates  not 
so  much  to  confer  positive  title  on  the  oc- 
cupant, as  to  bar  the  remedy.  Hence  it  is 
said  to  be  properly  called  a  negative  pre- 
scription; id.  It  applies  only  when  there 
has  been  a  disseisin  or  some  actionable  in- 
vasion of  the  real  owner's  possession ;  Claw- 
son  v.  Primrose,  4  Del.  Ch.  670  n. 

When  such  possession  has  been  actual, 
Mather  v.  Ministers  of  Trinity  Church,  3  S. 
&  R.  (Pa.).  517,  8  Am.  Dec.  663,  and  has  been 
adverse  for  twenty  years,  the  law  raises  the 
presumption  of  a  grant;  Angell,  Wat.  Cour. 
85.  But  this  presumption  arises  only  when 
the  use  or  occupation  would  otherwise  have 
been  unlawful;  Tlnkham  v.  Arnold,  3 
Greenl.  (Me.)  120;  Jackson  v.  Richards,  6 
Cow.  (N.  Y.)  617;  Jackson  v.  Vermilyea,  id. 
677;  Hall  v.  Powel,  4  S.  &  R.  (Pa.)  456,  8 
Am.  Dec.  722. 

The  statute  of  limitations  is  the  source  of 
title  by  adverse  possession;  Armijo  v.  Ar- 
mijo,  4  N.  M.  (Gild.)  57,  13  Pac.  92.  It  is 
held  to  be  not  grounded  upon  the  presump- 
tion of  a  grant ;  but  is  the  fiat  of  the  legis- 
lature cutting  off  the  right  to  maintain  suit ; 
Louisville  &  N.  R.  Co.  v.  Smith,  125  Ky.  336, 
101  S.  W.  317,  31  Ky.  L.  Rep.  1,  128  Am.  St. 
Rep.  254 ;  and  is  for  the  interest  of  the  sta- 
bility of  titles ;  Northern  Pac.  R.  Co.  v.  Ely, 
25  Wash.  384,  65  Pac.  555,  54  L  R.  A.  526,  87 
Am.  St.  Rep.  766.  It  protects  the  disseisor 
in  his  possession  not  out  of  regard  to  the 
merits  of  his  title,  but  because  the  real  own- 
er has  acquiesced  in  his  possession;  Foulke 
v.  Bond,  41  N.  J.  L.  527.  It  must  be  com- 
plied with  in  every  substantial  particular; 
Brokel  v.  McKechnie,  69  Tex.  33,  6  S.  W.  623. 

A  mere  possession,  without  color  or  claim 
of  an  adverse  title,  will  not  enable  one  in  an 
action  of  right  to  avail  himself  of  the  statute 
of  limitations;  Clagett  v.  Conlee,  16  la. 
487 ;  Jasperson  v.  Scharnikow,  150  Fed.  571, 
80  C.  C.  A..  373,  15  L.  R.  A.  (N.  S.)  1178 ; 
Jackson  v.  Huntington,  5  Pet.  (U.  S.)  402, 
8  L.  Ed.  170 ;  Stevens  v.  Brooks,  24  Wis.  329 ; 
Harvey  v.  Tyler,  2  Wall.  (U.  S.)  328,  17  L. 
Ed.  S71.  The  terms  "color  of  title"  and 
"claim  of  title"  are  not  synonymous;  Her- 
bert v.  Hanrick,  16  Ala.  581.  To  constitute 
the  former  there  must  be  a  paper  title,  but 
the  latter  may  rest  wholly  in  parol ;  Hamil- 
ton v.  Wright,  30  la.  4S0.  The  claim  of 
right  may  be  made  inferentially  by  unequivo- 
cal acts  of  ownership ;  Barnes  v.  Light,  116 
N.  Y.  34,  22  N.  E.  441 ;  Wilbur  v.  R.  Co.,  116 
la.  65,  89  N.  W.  101;  as  by  the  occupation 
and  use  of  land  by  a  railroad  for  a  right  of 
way;  Illinois  Cent.  R.  Co.  v.  Houghton,  126 
111.  235,  18  N.  E.  301,  1  L.  R.  A.  213,  9  Am. 
St.  Rep.  581;  or  by  visible,  hostile,  exclusive, 
and   continuous  appropriation  of  the   land; 


ADVERSE  POSSESSION 


153 


ADVERSE  POSSESSION 


Cox  v.  Hotel  Co.  (Tex.)  47  S.  W.  808.  It 
need  not  be  a  valid  claim,  so  long  as  it  is 
made  and  relied  on  by  the  person  in  posses- 
sion ;  Jackson  v.  Ellis,  13  Johns.  (N.  Y.)  118 ; 
Clapp  v.  Bromagham,  9  Cow.  (N.  Y.)  530; 
Grant  v.  Fowler,  39  N.  H.  101 ;  Cornelius  v. 
Giberson,  25  N.  J.  L.  1 ;  Montgomery  Coun- 
ty v.  Severson,  64  la.  326,  17  N.  W.  197,  20 
N.  W.  458 ;  Virginia  Midland  R.  Co.  v.  Bar- 
bour, 97  Va.  118,  33  S.  E.  554;  Dothard  v. 
Denson,  72  Ala.  541 ;  and  where  all  the  oth- 
er elements  of  an  adverse  possession  have 
concurrently  and  persistently  existed  for  the 
statutory  time,  color  of  title  has  been  usual- 
ly held  not  essential ;  Moore  v.  Brownfield, 
7  Wash.  23,  34  Pac.  199;  Dibble  v.  Land 
Co.,  103  U.  S.  63,  16  Sup.  Ct.  939,  41  L.  Ed. 
72;  and  see  the  cases  collected  on  this  point, 
15  L.  R.  A.  (N.  S.)  1178,  n. 

The  intention  must  be  manifest;  Lewis  v. 
Railroad  Co.,  162  N.  Y.  202,  56  N.  E.  540; 
Haney  v.  Breeden,  100  Va.  781,  42  S.  E.  916 ; 
Marcy  v.  Marcy,  6  Mete.  (Mass.)  360.  It 
guides  the  entry  and  fixes  its  character ; 
Jasperson  v.  Scharnikow,  150  Fed.  571,  80 
C.  C.  A.  373,  15  L.  R.  A.  (N.  S.)  1178,  citing 
Ewing  v.  Burnet,  11  Pet.  (U.  S.)  51,  9  L.  Ed. 
624.  Possession  taken  under  claim  of  title 
shows  such  intention ;  .Probst  v.  Trustees, 
129  U.  S.  182,  9  Sup.  Ct.  263,  32  L.  Ed.  642. 
But  if  by  mistake  one  oversteps  his  bounds 
and  encroaches  upon  his  neighbor's  lands,  not 
knowing  the  location  of  the  true  line  and  in- 
tending to  claim  no  more  than  he  really  is 
entitled  to  possess,  his  possession  is  not  ad- 
verse, and  will  not  give  him  title  no  matter 
how  long  he  actually  holds  it;  Shirey  v. 
Whitlow,  80  Ark.  444,  97  S.  W.  444 ;  Gordon 
v.  Booker,  97  Cal.  586,  32  Pac.  593 ;  Mills  v. 
Penny,  74  la.  172,  37  N.  W.  135,  7  Am.  St. 
Rep.  474;  Silver  Creek  Cement  Corp.  v.  Ce- 
ment Co.,  138  Ind.  297,  35  N.  E.  125,  37  N.  C. 
721;  Preble  v.  Railroad  Co.,  85  Me.  200,  27 
Atl.  149,  21  L.  R.  A.  829,  35  Am.  St.  Rep.  366; 
Kirkman  v.  Brown,  93  Tenn.  476,  27  S.  W. 
709.  In  such  a  case  the  intent  to  claim  title 
exists  only  upon  the  condition  that  his  be- 
lief as  to  his  boundary  is  true.  The  intention 
is  not  absolute,  but  provisional,  and  the  pos- 
session is  not  adverse ;  Preble  v.  Railroad 
Co.,  85  Me.  260,  27  Atl.  149„  21  L.  R.  A.  S29, 
35  Am.  St.  Rep.  366.  When  a  boundary  line 
between  adjoining  landowners  is  perpetually 
in  dispute,  and  neither  has  actual  occupa- 
tion to  any  definite  line,  there  is  no  adverse 
possession  beyond  the  true  line;  Liddle  v. 
Blake,  131  la.  165,  105  N.  W.  649 ;  nor  will 
the  encroachment  of  one  in  the  erection  of 
his  building  on  neighboring  property  through 
mistake  constitute  such  a  possession  as  will 
ripen  into  title  by  the  lapse  of  time ;  Davis 
v.  Owen,  107  Va.  283,  58  S.  E.  581,  13  L.  R.  A. 
(N.  S.)  728,  nor  where  a  deed,  by  mistake, 
covered  land  not  intended  to  be  conveyed ; 
Garst  v.  Brutsche,  129  la.  501,  105  N.  W.  452. 

Where  one  enters  into  possession  of  real 
property  by  permission  of  the  owner,  with- 


out   any    tenancy    whatever    being    created, 
except  at  sufferance,  possession  being 
as  a  mere  matter  of  favor,  he  can  never  ac- 
quire title  by  adverse  possession,  no  i 
how  long  continued  against  the  true  < 
thereof,  unless  there  is  a  clear,  positiv 
equivocal    disclaimer   and   disavowal    of   the 
owner's  title  and  an  assertion  by  the  occu- 
pant  of  a  title   in   hostility   thereto,    notice 
thereof  being  brought  home  to  the  landowner. 
See  McCutchen  v.  McCutehen,  77  B.   C.   129, 
57   S.  E.  678,  12  L.  R.  A.   (N.   S.)  1140,  and 
cases  cited. 

The  adverse  possession  must  be  "actual, 
continued,  visible,  notorious,  distinct, 
hostile;"  P.oaz  v.  Heister,  6  S.  &  R.  (Pa.)  21  ; 
Evans  v.  Templeton,  69  Tex.  375,  6 
S43,  5  Am.  St.  Rep.  71;  HaQindnrfer  v. 
Gault,  84  Ky.  124 ;  Paldi  v.  Paldi,  95  Mich. 
410,  54  N.  W.  903;  Chastang  v.  Chastang, 
141  Ala.  451,  37  South.  799,  109  Am.  St.  Rep. 
45;  Foulke  v.  Bond,  41  N.  J.  L.  527:  Jasper- 
son  v.  Scharnikow,  150  Fed.  571,  80  C.  C.  A. 
373,  15  L.  R.  A.  (N.  S.)  1178.  It  is  founded 
in  trespass  and  disseisin,  an  ouster  and  con- 
tinued exclusion  of  the  true  owner  for  the 
period  prescribed  by  the  statute ;  Olewine  v. 
Messmore,  128  Pa.  470.  18  Atl.  495;  Ward  v. 
Cochran,  150  U.  S.  597,  14  Sup.  Ct.  230,  37 
L.  Ed.  1195.  Xepean  v.  Doe,  2  Sm.  Lead. 
Cas.  597;  16  Harv.  L.  Rev.  224.  Even  the 
sole  possession  by  one  tenant  in  common  is 
not  presumed  adverse  to  a  cotenant ;  the  or- 
dinary presumption  is  that  such 
is  held  in  the  right  of  both  tenants;  Farm- 
ers' &  Merchants'  Nat.  Bank  v.  Wallace,  45 
Ohio  St.  152,  12  N.  E.  439 ;  mere  occui 
and  appropriation  of  rents;  Todd  v.  Todd, 
117  111.  92,  IN.  R  583 ;  Blackaby  v.  Black- 
aby,  185  111.  94,  56  N.  E.  1053;  or  acquiesc- 
ing in  an  adverse  claim  of  a  sub-tenant; 
Lee  v.  Livingston,  143  Mich.  203,  106  N.  W. 
713;  will  not  affect  the  rights  of  the  co- 
tenants;  and  see  Velott  v.  Lewis,  102  Pa.  320. 
There  must  be  an  actual  ouster;  Morris  v. 
Davis,  75  Ga.  169 ;  or  exclusive  possession 
after  demand ;  or  express  notice  of  adverse 
possession;  or  acts  of  exclusive  ownership 
of  an  unequivocal  character;  Rodney  v.  Mc- 
Laughlin, 97  Mo.  426,  9  S.  W.  726;  Lindley 
v.  Groff ,  37  Minn.  33S,  34  N.  W.  26 ;  Breden 
v.  Mcl.aurin,  9S  N.  C.  307,  4  S.  E.  136;  Kill- 
mer  v.  Wuchner,  74  la.  359,  37  N.  W.  778. 
The  receipt  of  the  entire  profits,  the  exclu- 
sive possession  for  twenty-one  years,  and  a 
claim  of  right  for  that  time,  will  constitute 
an  ouster;  Abrams  v.  Rhoner,  44  Hun  (X. 
Y.)  507;  Dobbins  v.  Dobbins,  141  N.  C.  210, 
53  S.  E.  870,  10  L.  R.  A.  (N.  S.)  1S5,  115  Am. 
St.  Rep.  682;  or  where  a  co-tenant  asserts 
possession  under  a  deed  purporting  to  con- 
vey the  whole  title,  he  will  be  deemed  to 
have  ousted  his  co-tenant;  Wright  v.  Kley- 
la,  104  Ind.  223,  4  N.  E.  16 ;  or  where  he  de- 
vises by  will  read  in  the  presence  of  his  co- 
tenant;  Miller  v.  Miller,  60  Pa.  16,  100  Am. 
Dec.   53S.     The  registration  of  a  deed  pur- 


ADVERSE  POSSESSION 


154 


ADVERSE  POSSESSION 


porting  to   vest  title  to  the  entire  tract  in 
the  grantee  is  notice  to  the  co-tenant  of  an 
adverse    holding;     McCann    v.    Welch,    106 
Wis.   142,  81  N.   W.   996.     One  claiming  by 
adverse  possession  cannot  avail   himself  of 
the   previous   possession   of   another   person 
with  whose  title  he  is  in  no  way  connected ; 
Stout   v.   Taul,   71    Tex.    438,  9    S.    W.   329; 
Heflin  v.   Burns,  70  Tex.   347,   8   S.  W.  48; 
Witt  v.  Ry.  Co.,  3S  Minn.  122,  35  N.  W.  862. 
If  the  combined  periods  of  adverse  posses- 
sion of  two  successive  holders  equal  twenty 
years,  the  true  owner  will  be  deprived  of  his 
title;    but  there  must  be  a  privity  of  estate 
such  as  a  devise  or  conveyance;    Sawyer  v. 
Kendall,    10    Cush.    (Mass.)    241;     Frost    v. 
Courtis,  172  Mass.  401,  52  N.  E.  515.     Where 
privity  is  required,  a  defective  deed  or  even 
a  mere  oral  transfer  is  sufficient;    Weber  v. 
Anderson,  73  111.  439;    and  see  13  Harv.  L. 
Rev.   52.     There  can  be  no  adverse  posses- 
sion  a  sain  st  a  state;    Hurst  v.  Dulany,  84 
Va.  701,  5   S.  E.  802;    but  a  state  may  ac- 
quire a  title  by  adverse  possession ;   Attorney 
General  v.  Ellis,  198  Mass.  91,  84  N.  E.  430, 
15  L.  R.  A.  (N.  S.)  1120 ;    Eldridge  v.  City  of 
Binghamton,   120  N.   Y.  309,  24  N.    E.   462; 
Birdsall  v.   Cary,  66  How.  Pr.   (N.  Y.)  358; 
but  see  Whatley  v.  Patten,  10  Tex.  Civ.  App. 
77,  31  S.  W.  60.    No  length  of  adverse  posses- 
sion by  user  on  the  side  of  a  highway  by 
an  abutting  owner  gives  title  to  him;    Par- 
sons v.  Village  of  Rye,  140  N.  Y.  Supp.  961. 
When  both  parties  claim  under  the  same 
title ;    as,  if  a  man  seised  of  certain  land  in 
fee  have  issue  two  sons,  and  die  seised,  and 
one  of  the  sons  enter  by  abatement  into  the 
land,  the  statute  of  limitations  will  not  op- 
erate against  the  other  son ;   Co.  Litt.  s.  396. 
There   can   be  no   adverse   possession   be- 
tween husband  and  wife  while  the  marital 
relation  continues  to  exist;    Bell  v.  Bell,  37 
Ala.  536,  79  Am.  Dec.  73 ;    Veal  v.  Robinson, 
70  Ga.  809;    Hendricks  v.  Rasson,  53  Mich. 
575,  19  N.  W.  192. 

As  against  the  purchaser  at  an  execution 
sale  subject  to  dower,  the  possession  of  the 
widow  is  not  adverse;  Robinson  v.  Allison, 
124  Ala.  325,  27  South.  461;  see  14  Harv. 
L.  Rev.  157. 

When  the  possession  of  the  one  party  is 
consistent  with  the  title  of  the  other;  as, 
where  the  rents  of  a  trust  estate  were  re- 
ceived by  a  cestui  que  trust  for  more  than 
twenty  years  without  any  interference  of 
the  trustee,  it  was  held  not  to  be  adverse  to 
the  title  of  the  trustee;  8  East  248.  See 
Poston  v.  Balch,  69  Mo.  117.  When  trust 
property  is  taken  possession  of  by  a  trustee, 
it  is  the  possession  of  the  cestui  que  trust 
and  cannot  be  adverse  until  the  trust  is  dis- 
avowed, to  the  knowledge  of  the  cestui  que 
trust;  Reynolds  v.  Sumner,  126  111.  58,  18 
N.  E.  334,  1  L.  R.  A.  327,  9  Am.  St.  Rep.  523. 
When  the  occupier  has  acknowledged  the 
claimant's  title;  as,  if  a  lease  be  granted 
for  a  term,  and,  after  paying  the  rent  for 


the  land  during  such  term,  the  tenant  hold 
for  twenty  years  without  paying  rent,  his 
possession  will  not  be  adverse.  See  1  B.  & 
P.  542 ;  8  B.  &  C.  717. 

The  possession  of  the  tenant  becomes  ad- 
verse where,  to  the  knowledge  of  the  land- 
lord, the  tenant  disclaims  the  tenancy,  and 
sets  up  a  title  adverse  to  the  landlord ;  Wil- 
lison  v.  Watkins,  3  Pet.  (U.  S.)  43,  7  L.  Ed. 
596,  where  it  was  held  that  the  rule  that  a 
tenant  cannot  dispute  his  landlord's  title 
during  the  existence  of  his  lease  would  not 
defeat  the  right  of  tenant  to  acquire  title 
by  adverse  possession,  after  a  repudiation  of 
the  tenancy  brought  home  to  the  landlord. 
If  a  tenant  disclaims  the  tenure,  and  claims 
in  his  own  right,  of  which  the  landlord  has 
notice,  the  tenancy  is  terminated  and  the 
tenant  becomes  a  trespasser,  though  the 
period  of  the  lease  has  not  expired ;  Walden 
v.  Bodley,  14  Pet.  (U.  S.)  156,  10  L.  Ed. 
398 ;  Fusselman  v.  Worthington,  14  111.  145 ; 
and  the  statute  of  limitations  begins  to  run 
from  the  time  of  the  tenant's  disclaimer  and 
the  landlord's  knowledge  of  it;  Tillotson  v. 
Doe,  5  Ala.  407,  39  Am.  Dec.  330;  Duke  v. 
Harper,  6  Yerg.  (Tenn.)  280,  27  Am.  Dec. 
462;  Farrow's  Heirs  v.  Edmundson,  4  B. 
Monr.  (Ky.)  606,  41  Am.  Dec.  250;  and  if 
continued  will  ripen  into  title;  Sherman  v. 
Transp.  Co.,  31  Vt  162.  There  must  be  a 
disclaimer  by  the  tenant  and  hostile  posses- 
sion to  the  landlord's  knowledge,  or  such 
open  and  notorious  possession  as  to  raise 
a  presumption  of  notice;  Dothard  v.  Denson, 
72  Ala.  541.  See  generally  Townsend  v. 
Boyd,  217  Pa.  386,  66  Atl.  1099,  12  L.  R.  A. 
(N.  S.)  1149.  And  see  Jasperson  v.  Scharni- 
kow,  150  Fed.  571,  80  C.  C.  A.  373,  15  L.  R. 
A.  (N.  S.)  1178.  See  Landlord  and  Tenant; 
Coloe  of  Title. 

The  title  by  adverse  possession  for  such  a 
period  as  is  required  by  statute  to  bar  an 
action,  is  a  fee-simple  title,  and  is  as  effect- 
ive as  any  otherwise  acquired;  Cox  v.  Cox, 
17  Wash.  L.  Rep.  53;  Northern  Pac.  R.  Co. 
v.  Hasse,  197  TL  S.  9,  25  Sup.  Ct.  305,  49  L. 
Ed.  642. 

When  there  has  been  a  severance  of  the 
title  to  the  surface  and  that  to  the  minerals 
beneath  it,  adverse  possession  of  the  surface 
will  not  affect  the  title  to  the  minerals; 
Moreland  v.  Frick  Coke  Co.,  170  Pa.  33,  32 
Atl.  634;  Lulay  v.  Barnes,  172  Pa.  331,  34 
Atl.  52. 

It  is  not  material  that  a  break  in  the 
continuity  of  possession  has  been  due  to 
outside  causes;  Holliday  v.  Cromwell,  37 
Tex.  437 ;  but  in  such  a  case  it  was  held  that 
the  running  of  the  statute  was  suspended ; 
Western  v.  Flanagan,  120  Mo.  61,  25  S.  W, 
531. 

ADVERTISEMENT.  Information  or  knowl- 
edge communicated  to  individuals  or  the  pub- 
lic in  a  manner  designed  to  attract  general 
attention. 


ADVERTISEMENT 


155 


ADVISE 


A  notice  published  in  handbills,  placards, 
a.  newspaper,  etc. ;  cited  in  Darst  v.  Doom, 
38  111.  App.  397. 

The  law  in  many  instances  requires  par- 
ties to  advertise  in  order  to  give  notice  of 
acts  which  are  to  be  done;  in  these 
the  advertisement  is  in  general  equivalent 
to  notice.  But  there  are  cases  in  which 
such  notice  is  not  sufficient,  unless  brought 
home  to  the  actual  knowledge  of  the  party. 
Thus,  notice  of  the  dissolution  of  partner- 
ship by  advertisement  in  a  newspaper  print- 
ed in  the  place  where  the  business  is  carried 
on,  although  it  is  of  itself  notice  to  all  per- 
sons who  have  had  no  previous  dealings  with 
the  firm,  yet  is  not  notice  to  those  who  have 
had  such  previous  dealings;  it  must  be 
shown  that  persons  of  the  latter  class  have 
received  actual  notice ;  Watkinson  v.  Bank, 
4  Whart.  (Pa.)  484,  34  Am.  Dec.  521.  See 
Vernon  v.  Manhattan  Co.,  17  Weud.  (N.  Y.) 
526;  id.,  22  Wend.  (N.  Y.)  183;  Lind.  Part. 
♦222;  Mauldin  v.  Bank,  2  Ala.  502;  Hutchins 
v.  Bank,  8  Humphr.  (Tenn.)  418;  3  Bingh. 
2.  It  has  been  held  that  the  printed  condi- 
tions of  a  line  of  public  coaches  are  suffi- 
ciently made  known  to  passengers  by  being 
posted  up  at  the  place  where  they  book  their 
names;  Whitesell  v.  Crane,  8  W.  &  S.  (Pa.) 
373;  3  Esp.  271.  An  advertisement  by  a  rail- 
road corporation  in  a  newspaper  in  the  Eng- 
lish language  of  a  limitation  of  its  liability 
for  baggage  is  not  notice  to  a  passenger  who 
does  not  understand  English ;  Camden  &  A. 
R.  Co.  v.  Baldauf,  16  Pa.  68,  55  Am.  Dec.  481. 

An  ordinary  advertising  sheet  is  not  a 
newspaper  for  the  purpose  of  advertisement 
as  required  by  law,  and  when  notice  is  re- 
quired to  6e  published  in  two  newspapers, 
English  papers  are  presumed  to  be  intended ; 
Tyler  v.  Bowen,  1  Pittsb.  (Pa.)  225;  the 
posting  up  of  a  page  of  a  newspaper,  con- 
taining a  large  number  of  separate  adver- 
tisements, will  not  be  considered  a  handbill ; 
Clark  v.  Chambers,  1  Pittsb.   (Pa.)   224. 

When  an  advertisement  contains  the  terms 
of  sale,  or  description  of  the  property  to  be 
sold,  it  will  bind  the  seller. 

Advertisements  published  bona  fide  for  the 
apprehension  of  a  person  suspected  of  crime, 
or  for  the  prevention  of  fraud,  are  privileg- 
ed ;  Heard,  Lib.  &  Sland.  §  131. 

A  sign-board,  at  a  person's  place  of  busi- 
ness, giving  notice  of  lottery-tickets  being 
for  sale  there,  is  an  "advertisement" ;  Com. 
v.  Hooper,  5  Pick.   (Mass.)  42. 

See  Notice;  Flag. 

ADVICE.  Information  given  by  letter  by 
one  merchant  or  banker  to  another  in  regard 
to  some  business  transaction  which  concerns 
him.     Chit.  Bills  1S5. 

AD V ISA R I  (Lat).  To  advise;  to  consid- 
er ;  to  be  advised ;  to  consult.  See  Curia 
Advisari  Vult. 

ADVISE.    To     give    advice;     to    counsel. 


Long  v.  State,  23  Neb.  33,  36  N.  W.  310.  It 
is  different  in  meaning  from  instruct ;  Peo- 
ple v.  Horn,  70  Cal.  17,  11  Pac.  470;  or  per- 
suade; Wilson  v.  State,  38  Ala.  411. 

ADVISEDLY.  With  deliberation;  inten- 
tionally.    15  Moore  P.  C.  147. 

ADVISEMENT.  Consideration;  delibera- 
tion ;  consultation.  "Upon  deliberate  advise- 
ment, we  are  of  opinion,"  etc.  In  re  Iluhorst, 
150  U.  S.  662,  14  Sup.  Ct.  221,  37  L.  Ed.  1211. 

ADVISORY.  Suggestive,  but  not  conclu- 
sive. 

ADVISORY  OPINION.  See  Opinion  of 
Judges. 

ADVOCATE.  An  assistant;  adviser;  a 
pleader  of  causes. 

Derived  from  advocare,  to  summon  to  one's  as- 
sistance ;  advocatus  originally  signified  an  assistant 
or  helper  of  any  kind,  even  an  accomplice  in  the 
commission  of  a  crime;  Cicero,  Pro  Caecina,  c.  8; 
Llvy,  lib.  11.  55;  ill.  47;  Tertullian,  De  Idolatr.  cap. 
xxiii.;  Petron.  Satyric.  cap.  xv.  Secondarily,  It 
was  applied  to  one  called  in  to  assist  a  party  in  the 
conduct  of  a  suit;  Inst  1,  11,  D,  50,  13.  de  extr.  cogn. 
Hence,  a  pleader,  which  is  its  present  signification. 

In  Scotch  and  Ecclesiastical  Law.  An  offi- 
cer of  the  court,  learned  in  the  law,  who  is 
engaged  by  a  suitor  to  maintain  or  defend 
his  cause.  Advocates,  like  counsellors,  have 
the  exclusive  privilege  of  addressing  the 
court  either  orally  or  in  written  pleadings ; 
and,  in  general,  in  regard  to  duties,  liabili- 
ties, and  privileges,  the  same  rules  apply 
mutatis  mutandis  to  advocates  as  to  counsel- 
lors.    See  Counsellor. 

In  the  English  ecclesiastical  and  admiralty 
courts,  advocates  had  the  exclusive  right  of 
acting  as  counsel.  They  were  incorporated 
(8  Geo.  III.)  under  the  title  of  "The  College 
of  Doctors  of  Law  Exercent  in  the  Ecclesi- 
astical and  Admiralty  Courts."  In  1857,  on 
the  creation  of  the  new  court  of  probate  and 
matrimonial  causes,  this  college  was  empow- 
ered to  surrender  its  charter  and  sell  its 
real  estate. 

In  Scotland  all  barristers  are  called  advo- 
cates. 

Lord  Advocate. — An  officer  in  Scotland  ap- 
pointed by  the  crown,  during  pleasure,  to 
take  care  of  the  king's  interest  before  the 
courts  of  session,  justiciary,  and  exchequer. 
All  actions  that  concern  the  king's  interest. 
civil  or  criminal,  must  be  carried  on  with 
concourse  of  the  lord  advocate.  He  also  dis- 
charges the  duties  of  public  prosecutor,  ci- 
ther in  person  or  by  one  of  his  four  deputies, 
who  are  called  advocates-depute.  Indict- 
ments for  crimes  must  be  in  his  name  as  ac- 
cuser. He  supervises  the  proceedings  in  im- 
portant criminal  cases,  and  has  the  right  to 
appear  in  all  such  cases.  He  is,  in  fact,  sec- 
retary of  state  for  Scotland,  and  his  princi- 
pal duties  are  connected  directly  with  the 
administration  of  the  government. 

Inferior  courts  have  a  procurator  fiscal. 
who  supplies  before  them   the  place  of  the 


ADVOCATE 


15G 


ADVOCATI 


lord  advocate  in  criminal  cases.  See  2 
Bankt.  Inst.  492. 

College  or  Faculty  of  Advocates.— &  cor- 
porate body  in  Scotland,  consisting  of  the 
members  of  the  bar  in  Edinburgh.  A  large 
portion  of  its  members  are  not  active  prac- 
titioners, however;  2  Bankt.  Inst.  4S6. 

Queen's  Advocate. — A  member  of  the  Col- 
lege of  Advocates,  appointed  by  letters  pat- 
ent to  advise  the  crown  on  questions  of  civil, 
canon,  and  ecclesiastical  law.  He  takes  pre- 
cedence  next  after  the  solicitor  general. 

Church  or  Ecclesiastical  Advocates. — 
Pleaders  appointed  by  the  church  to  main- 
tain its  rights. 

In  Ecclesiastical  Law.  A  patron  of  a  liv- 
ing; one  who  has  the  advowson,  advocatio. 
Tech.  Diet.;  Ayliffe,  Par.  53;  Dane,  Abr.  c. 
81,.  §  20;  Erskine,  Inst.  79,  9. 

Those  persons  whom  we  now  call  patrons 
of  churches,  and  who  reserved  to  themselves 
and  their  heirs  a  license  to  present  on  any 
avoidance.  The  term  originally  belonged  to 
the  founders  of  churches  and  convents  and 
their  heirs,  who  were  bound  to  protect  their 
churches  as  well  as  to  nominate  or  present 
to  them.  But  when  the  patrons  grew  negli- 
gent of  their  duty  or  were  not  of  ability  or 
interest  in  the  courts  of  justice,  then  the 
religious  began  to  retain  law  advocates,  to 
solicit  and  prosecute  their  causes.  Spelm. ; 
Jacob,  Daw  Diet. 

A  person  admitted  by  the  Archbishop  of 
Canterbury  to  practise  in  the  court  of  arches 
in  the  same  manner  as  barristers  in  the  com- 
mon law  courts.    Rap.  &  Daw.  Daw  Diet. 

ADVOCATI  (Dat).  In  Roman  Law.  Pa- 
trons; pleaders;  speakers. 

Originally  the  management  of  suits  at  law  was 
undertaken  by  the  patronus  for  his  cliens  as  a  mat- 
ter of  duty  arising  out  of  their  reciprocal  relation. 
Afterwards  it  became  a  profession,  and  the  rela- 
tion, though  a  peculiarly  confidential  one  while  It 
lasted,  was  but  temporary,  ending  with  the  suit. 
The  profession  was  governed  by  very  stringent 
rules:  a  limited  number  only  were  enrolled  and 
allowed  to  practise  In  the  higher  courts — one  hun- 
dred and  fifty  before  the  prcefectus  prcetorio;  Dig. 
8,  11 ;  Code  2,  7 ;  fifty  before  the  prcef .  aug.  and 
dux  JSgypticus  at  Alexandria;  Dig.  8,  13;  etc., 
etc.  The  enrolled  advocates  were  called  advocati 
ordinarii.  Those  not  enrolled  were  called  adv.  su- 
pernumerarii  or  extraordinarii,  and  were  allowed  to 
practise  in  the  Inferior  courts;  Dig.  8, 13.  From  their 
ranks  vacancies  In  the  list  of  ordinarii  were  filled; 
Ibid.  The  ordinarii  were  either  fiscales,  who  were 
appointed  by  the  crown  for  the  management  of 
suits  in  which  the  Imperial  treasury  was  concerned, 
and  who  received  a  salary  from  the  state ;  or 
privati  whose  business  was  confined  to  private  caus- 
es. The  advocati  ordinarii  were  bound  to  lend 
their  aid  to  every  one  applying  to  them,  unless  a 
just  ground  existed  for  a  refusal;  and  they  could 
be  compelled  to  undertake  the  cause  of  a  needy 
party  ;  1.  7,  c.  2,  6.  The  supernumerarii  were  not 
thus  obliged,  but,  having  once  undertaken  a  cause, 
were  bound  to  prosecute  or  defend  it  with  diligence 
and  fidelity. 

The  client  must  be  defended  against  every  per- 
son, even  the  emperor,  though  the  advocati  fiscales 
could  not  undertake  a  cause  against  the  fiscus  with- 
out a  special  permission;  11.  1  et  2,  C.  2,  9;  unless 
such  cause  was  their  own,  or  that  of  their  parents, 
children,  or  ward;   L  10,  pr.  C.  U,  D.  3,  1. 


An  advocate  must  have  been  at  least  seventeen 
years  of  age;  1.  1,  §  3,  D.  3,  1 ;  he  must  not  be 
blind  or  deaf;  1.  1,  §§  3  et  5,  D.  3,  1;  he  must  be 
of  good  repute,  not  convicted  of  an  infamous  act; 
1.  1,  §  8,  D.  3,  1 ;  he  could  not  be  advocate  and 
judge  in  the  same  cause;  1.  6,  pr.  C.  2,  6;  he  could 
not  even  be  a  judge  in  a  suit  In  which  he  had  been 
engaged  as  advocate;  L  17,  D.  2,  1;  1.  14,  C.  1,  51; 
nor  after  being  appointed  judge  could  he  practise 
as  advocate  even  in  another  court;  1.  14,  pr.  C.  1, 
51;  nor  could  he  be  a  witness  in  the  cause  in  which 
he  was  acting  as  advocate;  1.  ult.  D.  22,  5;  22 
Gliick,  Pand.  p.  161,  et  seq. 

He  was  bound  to  bestow  the  utmost  care  and  at- 
tention upon  the  cause,  nihil  studii  reliquentes  quod 
sibi  possibile  est;  1.  14,  §  1,  C.  3,  1.  He  was  liable 
to  his  client  for  damages  caused  in  any  way  by 
his  fault;  5  Gliick,  Pand.  110.  If  he  had  signed  the 
concepit,  he  was  responsible  that  it  contained  no 
matter  punishable  or  Improper ;  Boehmer,  Cons,  et 
Decis.  t.  ii.  p.  1,  resp.  cviii.  no.  5.  He  must  clearly 
and  correctly  explain  the  law  to  his  clients,  and 
honestly  warn  them  against  transgression  or  neg- 
lect thereof.  He  must  frankly  inform  them  of  the 
lawfulness  or  unlawfulness  of  their  cause  of  action, 
and  must  be  especially  careful  not  to  undertake  a 
cause  clearly  unjust,  or  to  let  himself  be  used  as 
an  instrument  of  chicanery,  malice,  or  other  un- 
lawful action;  1.  6,  §§  3,  4,  C.  2,  6;  1.  13,  §  9;  1. 
14,  §  1,  C.  3,  1.  In  pleading,  he  must  abstain  from 
invectives  against  the  judge,  the  opposite  party  or 
his  advocate  ;  1.  6,  §  1,  C.  2,  6.  Should  it  become 
necessary  or  advantageous  to  mention  unpleasant 
truths,  this  must  be  done  with  the  utmost  forbear- 
ance, and  in  the  most  moderate  language ;  5  Gliick, 
Pand.  HI.  Conscientious  honesty  forbade  his  be- 
traying secrets  confided  to  him  by  his  client  or 
making  any  Improper  use  of  them;  he  should  ob- 
serve inviolable  secrecy  in  respect  to  them;  ibid.; 
he  could  not,  therefore,  be  compelled  to  testify  in 
regard  to  such  secrets ;    1.  ult.  D.  22,  5. 

If  he  violated  the  above  duties,  he  was  liable,  In 
addition  to  compensation  for  the  damage  thereby 
caused,  to  fine,  or  imprisonment,  or  suspension,  or 
entire  removal  from  practice,  or  to  still  severer 
punishment,  particularly  where  he  had  been  guilty 
of  a  prajvaricatio,  or  betrayal  of  his  trust  for  the 
benefit  of  the  opposite   party;    5   Gliick,   Pand.  111. 

Compensation. — By  the  lex  Cincia,  A.  U.  C.  549, 
advocates  were  prohibited  from  receiving  any  re- 
ward for  their  services.  In  course  of  time  this  be- 
came obsolete.  Claudius  allowed  It,  and  fixed  ten 
thousand  sesterces  as  the  maximum  fee.  Trajan 
prohibited  this  fee,  called  honorarium,  from  being 
paid  before  the  termination  of  the  action.  This,  too, 
was  disregarded,  and  prepayment  had  become  law- 
ful In  the  time  of  Justinian;  5  Gliick,  Pand.  U7. 
The  fee  was  regulated  by  law,  unless  the  advocate 
had  made  a  special  agreement  with  his  client,  when 
the  agreement  fixed  the  amount.  But  a  pactum  de 
quota  litis,  i.  e.,  an  agreement  to  pay  a  contingent 
fee,  was  prohibited,  under  penalty  of  the  advocate's 
forfeiting  his  privilege  of  practising;  1.  5,  C.  2, 
6.  A  palmarium,  or  conditional  fee  in  addition  to 
the  lawful  charge  and  depending  upon  his  gaining 
the  cause,  was  also  prohibited ;  5  Gliick,  Pand.  120 
et  seq.  But  an  agreement  to  pay  a  palmarium 
might  be  enforced  when  it  was  not  entered  into  till 
after  the  conclusion  of  the  suit;  1.  1,  §  12,  D.  50,  13. 
The  compensation  of  the  advocate  might  also  be 
in  the  way  of  an  annual  salary ;  5  Gliick,  Pand. 
122. 

Remedy. — The  advocate  had  the  right  to  retain 
papers  and  instruments  of  his  client  until  payment 
of  his  fee ;  1.  26,  Dig.  3,  2.  Should  this  fail,  he 
could  apply  for  redress  to  the  court  where  the  cause 
was  tried  by  petition,  a  formal  action  being  unnec- 
essary;   5  Gliick,  Pand.  122. 

Anciently,  any  one  who  lent  his  aid  to  a  friend, 
and  who  was  supposed  to  be  able  in  any  way  to  In- 
fluence a  Judge,  was  called  advocatus. 

Causidicus  denoted  a  speaker,  or  pleader  merely; 
advocatus  resembled  more  nearly  a  counsellor;  or, 
still  more  exactly,  causidicus  might  be  rendered 
barrister,    and     advocatus    attorney,     or    solicitor. 


ADVOCATI 


157 


ADVOWTRY,  ADVOUTRY 


though  the  duties  of  an  advocatus  were  much  more 
extended  than  those  of  a  modern  attorney ;  Du 
Cange;    Calvinus,   Lex. 

A  witness. 

ADVOCATI      ECCLESI/E.     Advocates     of 

the  church. 

These  were  of  two  eorta:  those  retained  as 
pleaders  to  argue  the  cases  of  the  church  and  at- 
tend to  its  law-matters  ;  and  advocates,  or  patrons 
of  the  advowson.     Cowell ;    Spelman,  Gloss. 

ADVOCATI  FISCI.  In  Civil  Law.  Those 
chosen  by  the  emperor  to  argue  his  cause 
whenever  a  question  arose  affecting  his  rev- 
enues.    3  Bla.  Com.  27. 

ADVOCATIA.  In  Civil  Law.  The  func- 
tions, duty,  or  privilege  of  an  advocate.  Du 
Cange,  Advocatia. 

ADVOCATUS.  A  pleader;  a  narrator. 
Bracton,  412  a,  372  b. 

ADVOWSON.  A  right  of  presentation  to 
a  church  or  benefice. 

He  who  possesses  this  right  is  called  the  patron 
or  advocate.  When  there  is  no  patron,  or  he  neg- 
lects to  exercise  his  right  within  six  months,  it  is 
called  a  lapse,  and  a  title  is  given  to  the  ordinary 
to  collate  to  a  church:  when  a  presentation  is  made 
by  one  who  has  no  right,  it  is  called  a  usurpation. 

Advowsons  are  of  different  kinds;  as  ad- 
vowson appendant,  when  it  depends  upon 
a  manor,  etc. ;  advowson  in  gross,  when  it 
belongs  to  a  person  and  not  to  a  manor ;  ad- 
vowson presentative,  where  the  patron  pre- 
sents to  the  bishop;  advowson  donative, 
where  the  king  or  patron  puts  the  clerk  into 
possession  without  presentation;  advowson 
collative,  where  the  bishop  himself  is  a  pa- 
tron; advowson  of  the  moiety  of  the  church, 
where  there  are  two  several  patrons  and 
two  incumbents  in  the  same  church;  a  moie- 
ty of  advowson,  where  two  must  join  the 
presentation  of  one  incumbent;  advowson  of 
religious  Iwuses,  that  which  is  vested  in  the 
person  who  founded  such  a  house.  2  Bla. 
Com.  21;  Mirehouse,  Advowsons;  Comyns, 
Dig.  Advowson,  Qua  re  Impedit ;  Bacon,  Abr. 
Simony;  Burns,  Eccl.  Law.  See  2  Poll.  & 
Maitl.  135. 

An  advowson  in  modern  times  and  in  or- 
dinary language  has,  no  doubt,  been  used  to 
mean  the  perpetual  right  of  presentation  to 
a  church  or  ecclesiastical  benefice.  An  ad- 
vowson in  the  limited  sense  of  the  word  may 
be  separated  from  the  manor  to  which  it  is 
attached  and  perpetual  right  of  presentation 
to  a  church  may  be  severed  from  the  lord- 
ship of  the  manor.  Where  an  almshouse  has 
been  established  by  a  lord  of  the  manor, 
which  afterwards  became  vested  in  the 
Crown  by  attainder,  the  charity  also  vested 
in  the  Crown  by  attainder  and  the  right,  of 
nominating  a  master  was  analogous  to  an 
advowson  separable  from  the  manor  and 
capable  of  being  passed  by  grant  from  the 
Crown  subsequent  to  the  attainder;  22  L.  J. 
Ch.  84G. 

ADVOWTRY,  ADVOUTRY.  The  crime 
committed  by  a  woman  who,  having  commit- 


ted adultery,  continued  to  live  with  the  adul- 
terer.    Cowell. 

/EDES.     In     Civil     Law.     A     dwelling;     a 

house;  a  temple.  In  the  country  everything 
upon  the  surface  of  the  soil  passed  under  the 
term  ades.     Du  Cange. 

/EDILE.  In  Roman  Law.  An  officer  who 
attended  to  the  repairs  of  the  temples  and 
other  public  buildings;  the  repairs  and  clean- 
liness of  the  streets;  the  care  of  the  we 
and  measures;  the  providing  for  funerals 
and  games;  and  to  regulating  the  prices  of 
provisions.  Ainsworth,  Lex. ;  Smith,  Lex. ; 
Du  Cange. 

/EDILITIUM  EDICTUM.  In  Roman  Law. 
That  provision  by  which  the  buyer  of  a  dis- 
eased or  imperfect  slave,  horse,  or  other  ani- 
mal was  relieved  at  the  expense  of  the 
dor  who  had  sold  him  as  sound  knowing 
him  to  be  imperfect.    Calvinus,  Lex. 

AEL  (Norman).  A  grandfather.  Spelled 
also  aieul,  ayle.    Kelham. 

/EQUITAS.  In  Roman  Law.  Referring  to 
the  use  of  this  term,  Prof.  Gray  says  (Na- 
ture and  Sources  of  the  Law  290)  :  "Austin 
and  Maine  take  wquitas  as  having  an  anal- 
ogous meaning  to  equity ;  they  apply  the 
term  to  those  rules  which  the  praetors  intro- 
duced through  the  Edict  in  modification  of 
the  jus  civile,  but  it  seems  to  be  an  error  to 
suppose  that  cequitas  had  this  sense  in  the 
Roman  Law."  He  quotes  Prof.  Clark  (Juris- 
prudence 367)  as  doubting  "whether  cequitas 
is  ever  clearly  used  by  the  Roman  jurists  to 
indicate  simply  a  department  of  Law"  and 
expresses  the  opinion  that  an  examination  of 
the  authorities  more  than  justifies  his  doubt. 
2E  quit  as  is  opposed  to  strictum  jus  and  va- 
ries in  meaning  between  reasonable  modifica- 
tion of  the  letter  and  substantial  justice.  It 
is  to  be  taken  as  a  frame  of  mind  in  dealing 
with  legal  questions  and  not  as  a  source  of 
law. 

See  ^Equum  et  Bonum. 

/EQUUM  ET  BO  NUM.  "The  Roman  con- 
ception involved  in  'mquum  et  bonum'  or 
'wquitas'  is  identical  with  what  we  mean  by 
'reasonable'  or  nearly  so.  On  the  whole,  the 
natural  justice  or  'reason  of  the  thing'  which 
the  common  law  recognizes  and  applies  dne* 
not  appear  to  differ  from  the  'law  of  nature' 
which  the  Romans  identified  with  jw 
Hum,  and  the  medieval  doctors  of  the  civil 
and  common  law  boldly  adopted  as  being  di- 
vine law  revealed  through  man's  natural  rea- 
son." Sir  F.  Pollock,  Expans.  of  C.  L.  ill. 
citing  [1902]  2  Ch.  GG1,  where  jus  naturale 
and  wquum  ct  bonum  were  taken  to  have  the 
same  meaning. 

AERIAL   NAVIGATION.     See  Aviation. 

/ES  ALIENUM.     In    Civil   Law.     A  debt 

Literally  translated,  the  money  of  another;  the 
civil  law  considering  borrowed  money  as  the  prop- 


J3S  ALIENUM 


158 


AFFIDARE 


erty  of  another,  as  distinguished  from  as  suum, 
one's   own. 

/ESNEClUS.     See  Anecitjs. 

/ESTIMATIO  CAPITIS  (Lat  the  value  of 
a  head).  The  price  to  be  paid  for  taking  the 
life  of  a  human  being. 

King  Athelstan  declared,  in  an  assembly  held  at 
Exeter,  that  mulcts  were  to  be  paid  per  oestima- 
tionem  capitis.  For  a  king's  head  (or  life),  30,000 
thuringse;  for  an  archbishop's  or  prince's,  15,000; 
for  a  priest's  or  thane's,  2,000 ;    Leg.  Hen.  L 

/ETAS  INFANTILI  PROXIMA  (Lat.).    The 

age  next  to  infancy.  Often  written  cetas  in- 
fantia  proximo,.  This  lasted  until  the  age 
of  twelve  years;    4  Bla.  Com.  22.     See  Age. 

/ETAS  PUBERTATI  PROXIMA  (Lat). 
The  age  next  to  puberty.  This  lasted  until 
the  age  of  fourteen,  in  which  there  might  or 
niight  not  be  criminal  responsibility  accord- 
ing to  natural  capacity  or  incapacity.  Un- 
der twelve,  an  offender  could  not  be  guilty  in 
will,  neither  after  fourteen  could  he  be  sup- 
posed innocent,  of  any  capital  crime  which 
he  in  fact  committed.  4  Bla.  Com.  ch.  ii. 
See  Age. 

AFFAIR  (Fr.).    A  law  suit. 

AFFECT.  To  lay  hold  of,  to  act  upon,  im- 
press or  influence.  It  is  often  used  in  the 
sense  of  acting  injuriously  upon  persons  and 
things.  Ryan  v.  Carter,  93  U.  S.  84,  23  L. 
_Ed.  807;  Baird  v.  Hospital  Ass'n,  116  Mo. 
419,  22  S.  W.  726. 

AFFECTION.  The  making  over,  pawn- 
ing, or  mortgaging  a  thing  to  assure  the  pay- 
ment of  a  sum  of  money,  or  the  discbarge  of 
some  other  duty  or  service.  Crabb,  Techn. 
Diet. 

As  to  affection  as  a  consideration,  see  Con- 

SIDEBA.TION. 

AFFECTUS  (Lat).  Movement  of  the 
mind ;  disposition ;  intention.  See  Chal- 
lenge. 

A  F  F  E  E  R.  To  fix  in  amount ;  to  liquidate ; 
to  settle. 

To  affeer  an  amercement.  To  establish 
the  amount  which  one  amerced  in  a  court- 
leet  should  pay.     See  Amercement. 

To  affeer  an  account.  To  confirm  it  on 
oath  in  the  exchequer.     Cowell ;  Blount 

AFFEERORS.  Those  appointed  by  a 
court-leet  to  mulct  those  punishable,  not  by  a 
fixed  fine,  but  by  an  arbitrary  sum  called 
amercement,  q.  v.;   4  Bla.  Com.  379. 

AFFIANCE.  To  assure  by  pledge.  A 
plighting  of  troth  between  man  and  woman. 
Littleton,  §  39. 

An  agreement  by  which  a  man  and  woman 
promise  each  other  that  they  will  marry  to- 
gether. Pothier,  Traits  du  Mar.  n.  24.  Co. 
Litt.  34  a.    See  Dig.  23,  1.  1 ;   Code,  5.  1.  4. 

AFFIANT.  A  deponent;  one  who  makes 
an  affidavit. 

AFFIDARE     (Lat    ad    fidem    dare).      To 


pledge  one's  faith   or  do   fealty  by  making 
oath.     Cowell. 

Used  of  the  mutual  relation  arising  between  land- 
lord and  tenant;  1  Washb.  R.  P.  19;  1  Bla.  Com. 
367;  Termes  de  la  Ley,  Fealty.  Affidavit  Is  of  kin- 
dred meaning. 

AFFIDATUS.  One  who  is  not  a  vassal, 
but  who  for  the  sake  of  protection  has  con- 
nected himself  with  one  more  powerful. 
Spelman,  Gloss. ;    Jacob,  L.  Diet 

AFFIDAVIT.  A  statement  or  declaration 
reduced  to  writing,  and  sworn  to  or  affirmed 
before  some  officer  who  has  authority  to  ad- 
minister an  oath  or  affirmation.  Quoted  and 
approved  in  Shelton  v.  Berry,  19  Tex.  154, 
70  Am.  Dec.  326. 

It  differs  from  a  deposition  in  this,  that  in  the  lat- 
ter the  opposite  party  has  an  opportunity  to  cross- 
examine  the  witness,  whereas  an  affidavit  is  always 
taken  ex  parte;  Gresley,  Eq.  Ev.  413;  Stimpson  v. 
Brooks,  3  Blatch.  456,  Fed.  Cas.  No.  13,454. 

An  affidavit  includes  the  oath,  and  may 
show  what  facts  the  affiant  swore  to,  and 
thus  be  available  as  an  oath,  although  un- 
available as  an  affidavit ;  Burns  v.  Doyle,  28 
Wis.  460. 

By  general  practice,  affidavits  are  allow- 
able to  present  evidence  upon  the  hearing 
of  a  motion,  although  the  motion  may  in- 
volve the  very  merits  of  the  action ;  but 
they  are  not  allowable  to  present  evidence 
on  the  trial  of  an  issue  raised  by  the  plead- 
ings. *  Here  the  witnesses  must  be  produced 
before  the  adverse  party.  They  are  gener- 
ally required  on  all  motions  to  open  defaults 
or  to  grant  delay  in  the  proceedings  and  in 
other  applications  by  the  parties  addressed 
to  the  favor  of  the  court. 

Formal  parts. — An  affidavit  must  intelli- 
gibly refer  to  the  cause  in  which  it  is  made. 
The  strict  rule  of  the  common  law  is  that 
it  must  contain  the  exact  title  of  the  cause. 
This,  however,  is  not  absolutely  essential; 
Harris  v.  Lester,  80  111.  307.  If  not  entitled 
in  the  cause  it  cannot  be  considered  in  op- 
position to  a  motion  for  preliminary  injunc- 
tion ;   Goldstein  v.  Whelan,  62  Fed.  124. 

The  place  where  the  affidavit  is  taken 
must  be  stated,  to  show  that  it  was  taken 
within  the  officer's  jurisdiction;  1  Barb.  Ch. 
Pr.  601 ;  if  the  officer  in  signing  the  jurat 
fails  to  add  the  name  of  the  county  for  which 
he  is  appointed,  if  it  already  appears  in  the 
caption,  it  will  not  be  defective;  Smith  v. 
Runnells,  94  Mich.  617,  54  N.  W.  375.  The 
deponent  must  sign  the  affidavit  at  the  end ; 
Hathaway  v.  Scott,  11  Paige  Ch.  (N.  Y.)  173. 
Tbe  jurat  must  be  signed  by  the  officer  with 
the  addition  of  his  official  title.  In  the  case 
ot  some  officers  the  statutes  conferring  au- 
thority to  take  affidavits  require  also  his  seal 
to  be  affixed. 

In  the  absence  of  a  rule  of  court  or  statute 
requiring  it,  if  affiant's  name  appears  in  an 
affidavit  as  the  person  who  took  the  oath, 
the  subscription  to  it  by  affiant  is  not  nec- 
essary;   Norton  v.  Hauge,  47  Minn.  405,  50 


AFFIDAVIT 


159 


AFFIDAVIT  OF  DEFENCE 


N.  W.  368 ;  Shelton  v.  Berry,  19  Tex.  154,  70 
Am.  Dee.  326,  or  if  his  name  is  omitted  in 
the  body  of  the  verification  but  it  is  properly 
signed,  it  is  sufficient ;  Cunningham  v.  Doyle, 
5  Misc.  Rep.  219,  25  N.  Y.  Supp.  476.  If  the 
notary  fails  to  attach  his  seal  to  an  affidavit 
of  an  assignee  in  insolvency,  it  is  not  void ; 
Clement  v.  Bullens,  159  Mass.  193,  34  N.  E. 
173  ;  if  he  omits  to  add  his  name  in  the  jurat 
In  an  affidavit  for  a  writ  of  certiorari,  the 
court  may  permit  it  to  be  done  nunc  pro 
tunc;  State  v.  Cordes,  87  Wis.  373,  58  N.  W. 
771;  if  he  omit*  to  add  his  title  it  is  not 
invalid;  Jackman  v.  Gloucester,  143  Mass. 
3S0,  9  N.   E.  740. 

In  an  affidavit  which  is  to  be  the  basis  of 
Judicial  action  the  nature  and  quality  and 
perhaps  the  source  of  information  must  be 
set  forth,  so  that  the  court  may  be  able  to 
ascertain  whether  the  party  is  right  in  en- 
tertaining the  belief  to  which  he  deposes; 
Whitlock  v.  Koth,  10  Barb.  (N.  Y.)  78. 

A  "denial  upon  information  and  belief, 
without  stating  the  sources  of  information 
and  belief,  can  have  no  weight  as  against  the 
appellant's  positive  affidavit  as  to  what  is 
still  due  him";  Harris  v.  Taylor,  35  App. 
Div.  462,  54  N.  Y.  Supp.  S64.  So-called  evi- 
dence on  information  and  belief  "ought  not 
to  be  looked  at  at  all,  not  only  unless  the 
court  can  ascertain  the  sources  of  the  infor- 
mation and  belief,  but  also  unless  the  de- 
ponent's statements  are  corroborated  by 
someone  who  speaks  from  his  own  knowl- 
edge";  [1900]  2  Ch.  753.  Such  an  affidavit 
should  show  that  the  persons  from  whom 
the  information  is  obtained  are  absent  or 
that  their  deposition  cannot  be  obtained; 
Steuben  County  Bank  v.  Alberger,  78  N.  Y. 
252. 

In  general,  an  affidavit  must  describe  the 
deponent  sufficiently  to  show  that  he  is  en- 
titled to  offer  it;  for  example,  that  he  is  a 
party,  or  agent  or  attorney  of  a  party,  to 
the  proceeding;  Ex  parte  Bank  of  Monroe, 
7  Hill  (N.  Y.)  177,  42  Am.  Dec.  61 ;  Cunning- 
ham v.  Goelet,  4  Denio  (N.  Y.)  71 ;  Ex  parte 
Shumway,  id.  258,  and  this  matter  must  be 
stated,  not  by  way  of  recital  or  as  mere  de- 
scription, but  as  an  allegation  in  the  affi- 
davit; Staples  v.  Fairchild,  3  N.  Y.  41;  Payne 
v.  Young,  8  N.  Y.  15S. 

See  Jurat. 

AFFIDAVIT  OF  DEFENCE.  A  sworn 
statement  made  in  proper  form  that  the  de- 
fendant has  a  good  ground  of  defence  to  the 
action  upon  the  merits. 

The  statements  required  In  such,  an  affidavit  vary 
considerably  in  the  different  states  where  they  are 
required.  In  some,  it  must  state  a  ground  of  de- 
fence ;  McCarney  v.  McCamp,  1  Ashm.  (Pa.)  4;  in 
others,  a  simple  statement  of  belief  that  a  defence 
exists  Is  sufficient.  Called  also  an  affidavit  of  mer- 
its, as  in  Massachusetts.  See  as  to  its  salutary 
effect,  Lord  v.  Bank,  20  Pa.  387,  59  Am.  Dec.  728 ; 
Taggart  v.  Fox,  1  Grant   (Pa.)  190. 

It  must  be  made  by  the  defendant,  or  some 
person  in  his  behalf  who  possesses  a  knowl- 


edge of  the  facts ;  McCarney  v.  McCamp,  1 
Ashm.  (Pa.)  4.  In  a  suit  against  a  corpora- 
tion an  affidavit  of  defence  made  by  a  mere 
stockholder  should  set  out  some  reason  why 
it  is  not  made  by  an  officer  or  director ;  Erie 
Boot  &  Shoe  Co.  v.  Eichenlaub,  127  Pa.  164, 
17  Atl.  889. 

The  effect  of  a  failure  to  make  such  affi- 
davit is,  in  a  case  requiring  one,  to  default 
the  defendant;  Slocum  v.  Slocum,  8  Watts 
(Pa.)  367.  It  was  first  established  in  Phila- 
delphia by  agreement  of  members  of  the  bar ; 
Vanatta  v.  Anderson,  3  Binn.  (Pa.)  417;  and 
afterwards  by  act  of  assembly.  A  law  per- 
mitting judgment  in  default  of  such  an  af- 
fidavit is  constitutional;  Lawrance  v.  Borm, 
86  Pa.  225. 

It  is  no  part  of  the  pleadings ;  it  Is  merely 
to  prevent  a  summary  judgment;  the  case 
may  be  put  at  issue  on  other  grounds  than 
those  stated  therein;  Muir  v.  Ins.  Co.,  203 
Pa.  33S,  53  Atl.  158. 

AFFIDAVIT  TO  HOLD  TO  BAIL.  An  af- 
fidavit which  is  required  in  many  cases  be- 
fore a  person  can  be  arrested. 

Such  an  affidavit  must  contain  a  state- 
ment, clearly  and  certainly  expressed,  by 
some  one  acquainted  with  the  fact,  of  an 
indebtedness  from  the  defendant  to  the  plain- 
tiff, and  must  show  a  distinct  cause  of  ac- 
tion ;   1  Chit  PI.  165.    See  Bail. 

AFFILARE.  To  put  on  record;  to  file 
8  Coke  319 ;  2  M.  &  S.  202. 

AFFILIATION.  The  act  of  imputing  or 
determining  the  paternity  of  a  child. 

A  species  of  adoption  which  exists  by  cus- 
tom in  some  parts  of  France.  The  person  af- 
filiated succeeded  equally  with  other  heirs 
to  the  property  acquired  by  the  deceased  to 
whom  he  had  been  affiliated,  but  not  to  that 
which  he  inherited. 

In  Ecclesiastical  Law.  A  condition  which 
prevented  the  superior  from  removing  the 
person  affiliated  to  another  convent  Guyot, 
Re'pert. 

AF FINES.  In  Civil  Law.  Connections  by 
marriage,  whether  of  the  persons  or  their 
relatives.     Calvinus,  Lex. 

From  this  word  we  have  affinity,  denoting  rela- 
tionship by  marriage;    1  Bla.  Com.  434. 

The  singular,  affinis,  is  used  in  a  variety  of  re- 
lated significations— a  boundary ;  Du  Cange  ;  a  par- 
taker or  sharer,  affi)iis  culpce  (an  aider  or  one  who 
has  knowledge  of  a  crime);    Calvinus,  Lex. 

AFFINITAS.     In    Civil    Law.     Affinity. 

AFFINITAS  AFFINITATIS.  That  con- 
nection between  parties  arising  from  mar- 
riage which  is  neither  consanguinity  nor  af- 
finity. 

This  term  signifies  the  connection  between  the 
kinsmen  of  the  two  persons  married,  as,  for  exam- 
ple, the  husband's  brother  and  the  wife's  sister ; 
Erskine,  Inst  1.  «.  8. 

AFFINITY.  The  connection  existing,  In 
consequence  of  marriage,  between  each  of 
the  married  persons  and  the  kindred  of  the 


AFFINITY 


100         AFFIRMANCE-DAY-GENERAL 


other.     Solinger  v.   Earle,   45  N.  Y.   Super. 
Ct.  84. 

It  is  distinguished  from  consanguinity,  which  de- 
notes relationship  by  blood.  Affinity  is  the  tie  which 
exists  between  one  of  the  spouses  with  the  kindred 
of  the  other:  thus,  the  relations  of  my  wife,  her 
brothers,  her  sisters,  her  uncles,  are  allied  to  me  by 
affinity,  and  my  brothers,  sisters,  etc.,  are  allied  in 
the  same  way  to  my  wife.  But  my  brother  and  the 
sister  of  my  wife  are  not  allied  by  the  ties  of  af- 
finity. 

A  person  cannot,  by  legal  succession,  re- 
ceive an  inheritance  from  a  relation  by  af- 
finity; neither  does  it  extend  to  the  nearest 
relations  of  husband  and  wife,  so  as  to  cre- 
ate a  mutual  relation  between  them.  The 
degrees  of  affinity  are  computed  in  the  same 
way  as  those  of  consanguinity.  See  1  Bla. 
Com.  435;  Pothier,  Traite1  du  Mar.  pt.  3,  c. 
3,  art.  2 ;  Inst.  1,  10,  6 ;  Dig.  38,  10,  4,  3 ;  1 
Phill.  Eccl.  210;  Poydras  v.  Livingston,  5 
Mart.  O.  S.  (La.)  296. 

AFFIRM  (Lat.  aflirmare,  to  make  firm ;  to 
establish). 

To  ratify  or  confirm  a  former  law  or  judg- 
ment.    Cowell. 

Especially  used  of  confirmations  of  the  judgments 
of  an  inferior  by  an  appellate  tribunal. 

To  ratify  or  confirm  a  voidable  act  of  the 
party. 

To  make  a  solemn  religious  asseveration 
in  the  nature  of  an  oath.     See  Affirmation. 

AFFIRMANCE.  The  confirmation  of  a 
voidable  act  by  the  party  acting,  who  is  to 
be  bound  thereby. 

The  term  is  in  accuracy  to  be  distinguished  from 
ratification,  which  is  a  recognition  of  the  validity 
or  binding  force  as  against  the  party  ratifying,  of 
some  act  performed  by  another  person ;  and  from 
confirmation,  which  would  seem  to  apply  more  prop- 
erly to  cases  where  a  doubtful  authority  has  been 
exercised  by  another  in  behalf  of  the  person  ratify- 
ing ;  but  these  distinctions  are  not  generally  ob- 
served with  much  care;    1  Pars.  Contr.  243. 

Express  affirmance  takes  place  where  the 
party  declares  his  determination  of  fulfilling 
the  contract;  Martin  v.  Byrom,  Dudl.  (Ga!) 
203. 

A  mere  acknowledgment  that  the  debt  existed,  or 
that  the  contract  was  made,  is  not  an  affirmance  ; 
Robbins  v.  Eaton,  10  N.  H.  5G1;  2  Esp.  628;  Cham- 
bers v.  "Wherry,  1  Bail.  (S.  C.)  28 ;  Benham  v. 
Bishop,  9  Conn.  330,  23  Am.  Dec.  358;  Alexander  v. 
Hutcheson,  9  N.  C.  535 ;  Ford  v.  Phillips,  1  Pick. 
(Mass.)  203 ;  Martin  v.  Byrom,  Dudl.  (Ga.)  203 ; 
it  must  be  a  direct  and  express  confirmation,  and 
substantially  (though  it  need  not  be  in  form)  a 
promise  to  pay  the  debt  or  fulfill  the  contract; 
Goodsell  v.  Myers,  3  Wend.  (N.  Y.)  479  ;  Rogers  v. 
Hurd,  4  Day  (Conn.)  57,  4  Am.  Dec.  182;  Wilcox 
v.  Roath,  12  Conn.  550;  Hale  v.  Gerrish,  8  N.  H. 
874;  Bigelow  v.  Grannis,  2  Hill  (N.  Y.)  120;  Mil- 
lard v.  Hewlett,  19  Wend.  (N.   Y.)   301. 

Implied  affirmance  arises  from  the  acts  of 
the  party  without  any  express  declaration; 
Boston  Bank  v.  Chamberlin,  15  Mass.  220. 
See  Aldrich  v.  Grimes,  10  N.  H.  194;  Curtin 
v.  Patton,  11  S.  &  R.  (Pa.)  305;  1  Bla.  Com. 
466,  n.  10.  See  Confirmation;  Ratifica- 
tion. 

The  confirmation  by  an  appellate  court  of 
the  judgment  of  a  lower  court. 


AFFIRMANCE-DAY-GENERAL.  In  the 
English  Court  of  Exchequer,  is  a  day  ap- 
pointed by  the  judges  of  the  common  pleas 
and  barons  of  the  exchequer,  to  be  held  a 
few  days  after  the  beginning  of  every  term 
for  the  general  affirmance  or  reversal  of 
judgments.    2  Tidd,  Pract.  1091. 

AFFIRMANT.  One  who  makes  affirma- 
tion instead  of  making  oath  that  the  evi- 
dence which  he  is  about  to  give  shall  be  the 
truth,  as  if  he  had  been  sworn. 

He  is  liable  to  all  the  pains  and  penalty  of  per- 
jury, if  he  shall  be  guilty  of  willfully  and  mali- 
ciously violating  his  affirmation.     See  Perjury. 

AFFIRMATION.  A  solemn  religious  as- 
severation in  the  nature  of  an  oath.  1 
Greenl.  Ev.  §  371. 

Quakers,  as  a  class,  and  other  persons  who  have 
conscientious  scruples  against  taking  an  oath,  are 
allowed  to  make  affirmation  in  any  mode  which 
they  may  declare  to  be  binding  upon  their  con- 
sciences, in  confirmation  of  the  truth  of  testimony 
which  they  are  about  to  give ;  1  Atk.  21,  46 ;  Cowp. 
340,  389;  1  Leach  Cr.  Cas.  64;  1  Ry.  &  M.  77;  Vail 
v.  Nickerson,  6  Mass.  262;  Com.  v.  Buzzell,  16  Pick. 
(Mass.)  153  ;  Buller,  N.  P.  292;  1  Greenl.  Ev.  §  371. 
See  oaths  and  affirmations  in  Great  Britain  and 
Ireland,   etc.,   reviewed  in   25  Law  J.   169  ;    Oath. 

AFFIRMATIVE.  That  which  establishes; 
that  which  asserts  a  thing  to  be  true. 

It  is  a  general  rule  of  evidence  that  the 
affirmative  of  the  issue  must  be  proved ; 
Buller,  N.  P.  298;  Peake,  Ev.  2.  But  when 
the  law  requires  a  person  to  do  an  act,  and 
the  neglect  of  it  will  render  him  guilty  and 
punishable,  the  negative  must  be  proved,  be- 
cause every  man  is  presumed  to  do  his  duty, 
and  in  that  case  they  who  affirm  he  did  not 
must  prove  it;  1  Rolle  83;  3  Bos.  &  P.  307. 
See  Burden  of  Proof. 

AFFIRMATIVE  PREGNANT.  An  affirma- 
tive allegation  implying  some  negative  in 
favor  of  the  adverse  party. 

For  example,  if  to  an  action  of  assumpsit, 
which  is  barred  by  the  statute  of  limita- 
tions in  six  years,  the  defendant  pleads  that 
he  did  not  undertake,  etc.,  within  ten  years, 
a  replication  that  he  did  undertake,  etc., 
within  ten  years  would  be  an  affirmative 
pregnant ;  since  it  would  impliedly  admit 
that  the  defendant  had  not  promised  within 
six  years.  Such  a  plea  should  be  demurred 
to ;  Gould,  PI.  c.  6,  §§  29,  37 ;  Steph.  PI.  381 ; 
Bacon,  Abr.  Pleas  (n.  6). 

AFFIX.  To  attach  or  annex.  See  Fix- 
tures. 

AFF0RCE  THE  ASSIZE.  To  compel 
unanimity  among  the  jurors  who  disagree. 

It  was  done  either  by  confining  them  with- 
out meat  and  drink,  or,  more  anciently,  by 
adding  other  jurors  to  the  panel,  to  a  lim- 
ited extent,  securing  the  concurrence  of 
twelve  in  a  verdict.  See  Bracton,  1S5  &, 
292  a;  Fleta,  book  4,  c.  9.  §  2. 

The  practice  is  now  discontinued. 

AFFORESTATION.  The  turning  of  a  part 
of  a  country  into  forest  or  woodland  or  sub- 
jecting it  to  forest  law.    g.  v. 


AFFRANCHISE 


161 


AFORETHOUGHT 


AFFRANCHISE.    To  make  free. 

AFFRAY.  The  fighting  of  two  or  more 
persons  in  a  public  place  to  the  terror  of  the 
people. 

Mere  words  cannot  amount  to  an  affray. 
Any  person  is  justified  in  using  force  to  part 
the  combatants ;   1  Cr.  M.  &  R.  1~>7. 

It  differs  from  a  riot  in  not  being  premed- 
itated ;  for  if  any  persons  meet  together 
upon  any  lawful  or  innocent  occasion,  and 
happen  on  a  sudden  to  engage  in  fighting, 
they  are  not  guilty  of  a  riot,  but  an  affray 
only;  and  in  that  case  none  are  guilty  ex- 
cept those  actually  engaged  in  it;  4  Bla.  Com. 
140;    1  Russell,  Cr.  271;   2  Bish.Cr.  L.  1150. 

Fighting  in  a  private  place  is  only  an  as- 
sault; 1  C.  M.  &  R.  757;  1  Cox,  Cr.  Cas. 
177;  it  must  be  in  a  public  place;  Gamble 
v.  State,  113  Ga.  701,  39  S.  E.  301;  and  the 
indictment  need  not  describe  it;  State  v. 
Baker,  83  N.  C.  049  ;  State  v.  Heflin,  8  Humph. 
(Tenn.)  84;  State  v.  Sumner,  5  Strobh.  (S. 
C.)  53;  and  that  fact  must  be  avowed; 
State  v.  Woody,  47  N.  C.  335.  But  it  will  be 
an  affray  if  commenced  in  a  private  place  and 
continued  in  a  public  one  or  if  the  disturb- 
ance is  so  continuous  as  not  to  be  distin- 
guishable ;  State  v.  Billings,  72  Mo.  002 ;  or 
if  continued  in  public  after  pursuit;  Wilson 
v.  State,  3  Heisk.   (Tenn.)  278. 

Going  about  armed  with  unusual  or  deadly 
weapons  is  an  affray,  though  there  is  no 
actual  violence  or  fighting;  Hawk.  P.  C.  b. 
1,  c.  28,  §  1;  State  v.  Huntly,  25  N.  C.  418, 
40  Am.  Dec.  410;  and  the  statute  of  North- 
ampton, 2  Edw.  III.  c.  3,  4  Bla.  Com.  149, 
forbidding  it  was  declaratory  of  the  com- 
mon law ;  State  v.  Huntly,  25  N.  C.  418,  40 
Am.  Dec.  410.  For  constituting  this  offense 
a  gun  is  an  unusual  weapon  ;   id.    See  Riot. 

The  fighting  of  two  persons  in  the  pres- 
ence of  seven  others  was  held  an  affray,  the 
presence  of  the  seven  constituting  the  place 
a  public  one;  State  v.  Fritz,  133  N.  C.  725, 
45  S.  E.  957. 

AFFRECTAMENTUM.     Affreightment. 
The  word  fret  means  tons,  according  to  Cowell. 
Affreightamentum      was      sometimes      used.        Du 
Cange. 

AFFREIGHTMENT.  The  contract  by 
which  a  vessel,  or  the  use  of  it,  is  let  out 
to  hire.     See  Freight;  General  Ship. 

AFORESAID.  Before  mentioned;  already 
spoken  of  or  described. 

Whenever  in  any  instrument  a  person  has 
once  been  described,  all  subsequent  referenc- 
es therein  may  be  made  by  giving  his  name 
merely  and  adding  the  term  "aforesaid"  for 
the  purpose  of  identification.  The  same  rule 
holds  good  also  as  to  the  mention  of  places 
or  specific  things  described,  and  generally  as 
to  any  description  once  given  which  it  is  de- 
sirable to  refer  to.  So  also  as  to  a  place  in 
an  indictment;  1  Gabbett,  Cr.  Law  212;  5 
Term  010.  See  Identity. 
Bouv.— 11 


AFORETHOUGHT.  Premeditated;  pre- 
pense. 

The  length  of  time  during  which  the  ac 
cused  has  entertained  the  thought  of  com 
mitting  the  offence  is  not  very  material,  pro- 
vided he  has  In  fact  entertained  such 
thought ;  he  is  thereby  rendered  criminal  in 
a  greater  degree  than  if  he  had  committed 
the  offence  without  premeditation.  See 
Malice  Aforethought;  Premeditation;  2 
Chit.  Cr.  Law,  785;  4  Bla.  Com.  199;  Fost 
Cr.  Cas.  132,  291;  Respubliea  v.  Mulatto  Bob, 
4  Dall.  (Pa.)  140,  1  L.  Ed.  770;  Edwards  v. 
State,  25  Ark.  440;  U.  S.  v.  Cornell,  2  Mas. 
91,  Fed.  Cas.  No.  14,808. 

AFTER.  Behind,  following,  subsequent 
to  an  event  or  date. 

There  is  no  invariable  sense,  however,  to 
be  attached  to  the  word,  but  like  "from," 
"succeeding,"  "subsequent,"  and  similar 
words,  where  it  is  not  expressly  declared  to 
be  exclusive  or  inclusive,  it  is  susceptible  of 
different  significations  and  is  used  in  differ- 
ent senses,  as  will  in  the  particular  case  ef- 
fectuate the  intention  of  the  parties.  Its 
true  meaning  must  be  collected  from  its  con- 
text and  the  subject-matter ;  Sands  v.  Lyon, 
IS  Conn.  27. 

AFTER  ACQUIRED  PROPERTY.  See  Fu- 
ture Acquired. 

AFTER  BORN  CHILD.  See  En  Vi:mki: 
Sa  Mere;  Posthumous  Child. 

AFTERMATH.    The  second  crop  of  grass. 
A  right  to  have  the  last  crop  of  grass  or 
pasturage.    1  Chit.  Prac.  1S1. 

AFTERNOON.  The  word  has  two  senses. 
It  may  mean  the  whole  time  from  noon  to 
midnight,  or  it  may  mean  the  earlier  part 
of  that  time,  as  distinguished  from  the  eve- 
ning; 2  El.  &  Bl.  447,  where  an  act  forbid- 
ding innkeepers  to  have  their  houses  open 
on  Sunday  during  the  usual  hours  of  after- 
noon Divine  Service  was  taken  in  the  latter 
sense.     See  Day;  Time. 

AGAINST.  Adverse  or  in  opposition  to. 
The  meaning  of  the  word  varies  according 
to  the  context ;  State  v.  Prather,  54  Ind.  03. 

To  marry  "'against  one's  consent"  means 
without  the  consent;  2  Sim.  &  Stu.  179;  2 
Vern.  572. 

A  verdict  in  disobedience  of  the  instruc- 
tions of  the  court  upon  a  point  of  law  is  a 
verdict  "against  the  law" ;  Declez  v.  Save, 
71  Cal.  552,  12  Pac.  722;  Bunten  v.  Ins.  Co., 
4  Bosw.   (N.  Y.)   254. 

A  statute  providing  that  in  an  action  by 
an  administrator  "neither  party  shall  be  al- 
lowed to  testify  against  the  other,"  or  as  to 
transactions  with  the  deceased,  does  not  pre 
elude  either  party  from  being  called  to  tes- 
tify for  the  other;  Dudley  v.  Steele,  71  Ala. 
423. 

AGAINST  THE  FORM  OF  THE  STAT 
UTE.    Technical  words  which  must  be  used 


AGAINST  THE  FORM  OF  STATUTE      162 


AGE 


in  framing  an  indictment  for  a  breach  of  the 
statute  prohibiting  the  act  complained  of. 
The  Latin  phrase  is  contra  formam  statuti, 
g.  v. 

AGAINST   THE   PEACE.     Pee  PEACE. 

AGAINST  THE  WILL.  Technical  words 
which  must  be  used  in  framing  an  indict- 
ment for  robbery  from  the  person.  1  Chit. 
Cr.  Law  244. 

In  the  statute  of  13  Edw.  I.  (Westm.  2d) 
c.  34,  the  offence  of  rape  is  described  tojbe 
ravishing  a  woman  "where  she  did  not  con- 
sent," and  not  ravishing  against  Tier  will. 
Per  Tindal,  C.  J.,  and  Parke,  B.,  in  the  ad- 
denda to  1  Den.  Cr.  Cas.  1.  And  in  Eng- 
land this  statute  definition  was  adopted  by 
all  the  judges ;  Bell,  Cr.  Cas.  03,  71. 

AGARD.     Award.     Burrill,   Diet. 

AGE.  The  length  of  time  a  person  has 
lived.  Full  age  or  majority  is  the  age  at 
which  the  law  allows  persons  to  do  acts  or 
discharge  functions  which  for  want  of  years 
they  were  prohibited  from  doing  or  under- 
taking before. 

As  to  the  age  of  consent  in  prosecution 
for  rape,  see  Rape,  as  to  the  age  of  respon- 
sibility see  Infant,  and  see  also  Parent  and 
Child. 

In  the  United  States,  at  twenty-five,  a  man 
may  be  elected  a  representative  in  congress; 
at  thirty,  a  senator;  and  at  thirty-five,  he 
may  be  chosen  president.  He  is  liable  to 
serve  in  the  militia  from  eighteen  to  forty- 
five  inclusive,  unless  exempted  for  some  par- 
ticular reason.  In  England  no  one  can  be 
chosen  member  of  parliament  till  he  has  at- 
tained twenty-one  years ;  nor  be  ordained  a 
priest  under  the  age  of  twenty-four;  nor 
made  a  bishop  till  he  has  completed  his 
thirtieth  year.  The  age  of  serving  in  the 
militia  is  from  sixteen  to  forty-five  years. 
The  law,  according  to  Blackstone,  recognizes 
no  minority  in  the  heir  to  the  throne.  See 
1  Bla.  Com.  224,  note,  and  2  id.  208,  note, 
where  this  appears  to  result  from  the  char- 
ter under  which  the  king's  oldest  son  be- 
comes Duke  of  Cornwall  by  inheritance. 

In  French  Law.  A  person  must  have  at- 
tained the  age  of  forty  to  be  a  member  of 
the  legislative  body;  twenty-five,  to  be  a 
judge  of  a  tribunal  de  premiere  instance; 
twenty-seven,  to  be  its'  president,  or  to  be 
judge  or  clerk  of  a  cour  royale;  thirty,  to  be 
its  president  or  procureur-general;  twenty- 
five,  to  be  a  justice  of  the  peace ;  thirty,  to  be 
Judge  of  a  tribunal  of  commerce,  and  thirty- 
five,  to  be  its  president;  twenty-five,  to  be  a 
notary  public ;  twenty-one,  to  be  a  testa- 
mentary witness ;  thirty,  to  be  a  juror.  At 
sixteen,  a  minor  may  devise  one-half  of  his 
property  as  if  he  were  a  major.  A  male  can- 
not contract  marriage  till  after  the  eighteenth 
year,  nor  a  female  before  full  fifteen  years. 
At  twenty-one,  both  males  and  females  are 


capable  to  perform  all  the  acts  of  civil  life; 
Touillier,  Droit  Civ.  liv.  1,  Intr.  n.  188. 

In  Roman  Law.  Infancy  (infantia)  ex- 
tended to  the  age  of  seven;  the  period  of 
childhood  (pueritia)  which  extended  from 
seven  to  fourteen,  was  divided  into  two  pe- 
riods; the  first,  extending  from  seven  to  ten 
and  a  half,  was  called  the  period  nearest 
childhood  (wtas  infantia;  proxima)  ;  the  oth- 
er, from  ten  and  a  half  to  fourteen,  the 
period  nearest  puberty  (wtas  pubertati  prox- 
ima) ;  puberty  (pubertas)  extended  from 
fourteen  to  eighteen;  full  puberty  extended 
from  eighteen  to  twenty-five;  at  twenty-five, 
the  person  was  major.  See  Taylor,  Civ.  Law 
254;  Lecon  El.  du  Droit  Civ.  22. 

A  witness  may  prove  his  own  age ;  Cheever 
v.  Congdon,  34  Mich.  296;  State  v.  McClain, 
49  Kan.  730,  31  Pac.  790 ;  Morrel  v.  Morgan, 
65  Cal.  575,  4  Pac.  5S0;  State  v.  Best,  108 
N.  C.  747,  12  S.  E.  907;  Hill  v.  Eldridge,  126 
Mass.  234 ;  without  giving  his  sources  of  in- 
formation except  on  cross-examination;  Cen- 
tral R.  R.  v.  Coggin,  73  Ga.  689 ;  even  if  the 
parent  from  whom  it  is  admitted  that  the 
knowledge  was  derived  is  present;  Loose  v. 
State,  120  Wis.  115,  97  N.  W.  526 ;  or  is  liv- 
ing in  the  county  where  suit  is  brought; 
Pearce  v.  Kyzer,  84  Tenn.  (16  Lea)  521,  57 
Am.  Rep.  240;  but  when  the  statement  was 
made  to  a  teacher  for  entry  on  school  regis- 
try, that  record  is  not  admissible;  Simpson 
v.  State,  46  Tex.  Cr.  R.  551,  81  S.  W.  320. 
The  date  of  one's  birth  may  be  proved  by 
himself  or  members  of  his  family ;  Houlton 
v.  Manteuffel,  51  Minn.  185,  53  N.  W.  541; 
Chicago  &  A.  R.  Co.  v.  Lewandowski,  190 
111.  301,  60  N.  E.  497;  but  not  when  the 
knowledge  is  acquired  from  another  person, 
the  witness  being  an  orphan ;  People  v.  Col- 
bath,  141  Mich.  189,  104  N.  W.  633.  One's 
own  statement  of  his  age  has  been  said  to 
be  the  best  evidence;  Morrison  v.  Emsley, 
53  Mich.  564,  19  N.  W.  187. 

In  a  trial  for  rape  of  a  female  under  six- 
teen years,  her  testimony  as  to  her  age  was 
held  competent;  Com.  v.  Phillips,  162  Mass. 
504,  39  N.  E.  109;  but  a  conviction  for  se- 
duction under  the  age  of  eighteen  could  not 
be  maintained  when  the  oral  evidence  of  the 
girl  was  contradicted  by  the  church  record 
of  her  birth  on  which  she  had  stated  her 
evidence  was  based ;  State  v.  Cougot,  121 
Mo.  458,  26  S.  W.  566. 

A  statement  in  a  will  that  testator's  daugh- 
ter was  born  on  a  certain  day  is  admissible; 
3  To.  &  Coll.  Ex.  82 ;  and  in  2  R.  &  Myl.  169, 
a  person's  age  was  proved  by  the  declara- 
tions of  a  deceased  relative. 

The  federal  census  returns  have  been  held 
admissible  on  the  question  of  age;  Priddy 
v.  Boice,  201  Mo.  309,  99  S.  W.  1055,  9  L.  R. 
A.  (N.  S.)  718,  119  Am.  St.  Rep.  762,  9  Ann. 
Cas.  874;  contra,  Campbell  v.  Everhart,  139 
N.  C.  503,  52  S.  E.  201 ;  see  Wigm.  Ev.  1671 ; 
and  the  testimony  of  an  enumerator  after 
refreshing   his    memory   by   examination   of 


AGE 


103 


AGGRAVATION 


his  hook  and  then  stating  particulars  from 
recollection  has  been  admitted;  Battles  v. 
Tallman,  96  Ala.  403,  11  South.  247:  but  a 
school  census  is  inadmissible  to  prove  age 
for  any  other  than  school  purposes;  Edwards 
v.  Logan,  114  Ky.  312,  70  S.  W.  852,  75  S.  W. 
257. 

There  is  no  presumption  of  law  that  at 
any  age  a  woman  is  past  the  age  of  child 
bearing,  hut  courts  have  recognized  a  pre- 
sumption of  fact  as  to  a  married  woman  of 
l'.)::,  years  who  had  never  home  a  child; 
L.  R.  14  Eq.  215;  widow  of  55%;  L.  R.  11 
Eq.  408;  a  spinster  of  53;  35  L.  J.  C'h.  303; 
and  the  presumption  was  refused  in  the  case 
of  a  woman  of  54%,  married  three  years, 
who  had  never  had  a  child:  9  Ch.  D.  3SS. 
But  in  List  v.  Rodney,  83  Pa.  48::,  it  was 
held  that  (quoting  2  Bla.  Corn.  125)  "a  pos- 
sihility  of  issue  is  always  supposed  to  exist 
in  law  .  .  .  even  though  the  donees  be 
each  of  them  one  hundred  years  old."  and 
that  the  law  would  not  consider  the  physical 
impossihility  of  a  woman's  hearing  children 
after  she  was  seventy-five  years  old. 

AGE-PRAYER.  A  statement  made  in  a 
real  action  to  which  an  infant  is  a  party, 
of  the  fact  of  infancy  and  a  request  that 
the  proceedings  may  he  stayed  until  the  in- 
fant hecornes  of  age. 

It  is  now  abolished ;  stat.  11  Geo.  IY. ; 
1  Will.  IV.  c.  37,  §  10;  1  Lilly,  Reg.  54;  3 
Bla.  Com.  300. 

AGENCY.     See   Principal  and   Agent. 

AG  ENS   (Lat.   agere,  to  do;   to  conduct). 
A  conductor  or  manager  of  affairs. 
It  is  distinguished  from  factor,  a  workman. 

A  plaintiff.     Fleta,  lib.  4,  c.  15,  §  8. 

AGENT.     See  Principal  and  Agent. 

AGENT  AND  PATIENT.  A  phrase  indi- 
cating the  state  of  a  person  who  is  required 
to  do  a  thing,  and  is  at  the  same  time  the 
person  to  whom  it  is  done;  as,  when  a  man 
is  indebted  to  another,  and  he  appoints  him 
his  executor,  the  latter  is  required  to  pay 
the  debt  in  his  capacity  of  executor,  and  en- 
titled to  receive  it  in  his  own  right ;  he  is 
then  agent  and  patient.     Termes  de  la  Ley. 

AGER  (Lat).  In  Civil  Law.  A  field; 
land  genei'ally. 

A  portion  of  land  enclosed  by  definite 
boundaries. 

Used  like  the  word  acre  in  the  old  English  law, 
denoting  a  measure  of  undetermined  and  variable 
value.      Spelman,    Gloss.;     Du    Cange;     3    Kent    411. 

AGGRAVATION.  That  which  increases 
the  enormity  of  a  crime  or  the  injury  of  a 
wrong. 

One  of  the  rules  respecting  variances  is, 
that  cumulative  allegations,  or  such  as  mere- 
ly operate  in  aggravation,  are  immaterial, 
provided  that  sufficient  is  proved  to  estab- 
lish some  right,  offence,  or  justification  in- 
cluded in  the  claim,  charge,  or  defence  speci- 


fied on  the  record.     This  rule  runs  tl 
the  whole  criminal  law:   that   it  is  i- 
bly  enough  to  prove  so  much  of  I 
ment  as  shows  that  the  defendant 
mitted  a  substantive  crime  therein  - 
•2  Campb.*583;  -I  B.  &  <'.  329;  C<  i  i.  v. 
more,  4  day  i  Mass.)   18;  1  Bish.  Cr.  I 
Thus,  on  an  Indictment  for  murder  the  pris- 
oner may  lie  convicted  of  manslaughter,  for 
the  averment  of  malice  aforethoughl  Is 
ly  matter  of  aggravation;  Co.  Litt.  282a. 

The  introduction  of  matter  into  the  d 
ration   which   tends  to  increase  the  amount 
of  damages,  hut  does  not  affect  the  right  of 
action  itself.     Steph.  PI.  257;  Gould,  PL  42; 
12  Mod.  597. 

An  example  of  this  Is  found  in  the  case  where  a 
plaintiff  declares  in'  trespass  for  entering  his  house, 
and  breaking  his  close,  and  tossing  his  goods  about; 
try  of  the  house  is  the  principal  ground  and 
foundation  of  the  action,  and  the  rest  is  only  stated 
by  way  of  aggravation;  3  Wils.  294;  Hathaway  v. 
Rice,  ID  Vt.  107  ;  and  this  matter  need  not  be  prov- 
ed by  the  plaintiff  or  answered  by  the  defendant. 

See  Alia  Enormia. 

AGGREGATE.  Consisting  of  particular 
persons  or  items,  formed  into  one  body.  A 
combined  whole. 

See  Corporation. 

AGGREGATIO       MENTIUM        (Lat).       A 

meeting  of  minds.     See  Agreement. 

AGGRIEVED.  Having  a  grievance,  or 
suffered  loss  or  injury. 

The  "parties  aggrieved"  are  those  against 
whom  an  appealable  order  or  judgment  has 
been  entered;  Ely  v.  Frishie,  17  CaL  260. 
One  cannot  be  said  to  be  aggrieved  unless 
error  has  been  committed  against  him;  Kine- 
aly  v.  Macklin,  G7  Mo.  95;  Wiggin  v.  Swett, 
(J  Mete.  (Mass.)  197,  39  Am.  Dec.  716; 
Swackhamer  v.  Kline's  Adm'r,  25  N.  J.  Eq. 
503;  4  Q.  B.  Div.  90. 

AGIO.  An  Italian  word  for  accommoda- 
tion. A  term  used  in  commercial  transac- 
tions to  denote  the  difference  of  price  be- 
tween the  value  of  bank-notes  or  other  nom- 
inal  money  and  the  coin  of  the  country. 

AGISTMENT.  The  taking  of  another  per- 
son's cattle  into  one's  own  ground  to  he  fed. 
for  a  consideration  to  he  paid  by  the  owner. 
Williams  v.  Miller,  68  Cal.  290,  9  Pac.  166. 

Tithe  of  Agistment  was  a  small  tithe  paid 
to  the  rector  or  vicar  on  cattle  or  other 
produce  of  grass  lands.  It  was  paid  by  the 
occupier  of  the  land  and  not  by  the  person 
who  put  in  his  cattle  to  graze.  Rawle,  Ex- 
moor  31. 

In  Canon  Law.  A  composition  or  mean 
rate  at  which  some  right  or  due  might  be 
reckoned. 

AGISTOR.     An  officer  who  had  the  charge 
of  cattle   pastured    for   a    certain  stipn 
sum   in   the   king's   forest   and  who  collected 
the  money  paid  for  them.     One  who  takes  in 
horses  or  other  animals  to  pasture  at  certair 


AGISTOR 


164 


AGNATI 


rates.  Story,  Bailm.  §  443;  Skinner  v. 
Caughey,  64  Minn.  375,  67  N.  W.  203. 

He  is  not,  like  an  innkeeper,  bound  to  take 
all  horses  offered  to  him,  nor  is  he  liable  for 
any  injury  done  to  such  animals  in  his  care, 
unless  he  has  been  guilty  of  negligence,  or 
from  his  ignorance,  negligence  may  be  infer- 
red; Holt  547.  See  Schroeder  v.  Faires,  49 
Mo.  App.  470 ;  Brush  v.  Land  Co.,  2  Tex.  Civ. 
App.  1SS,  21  S.  W.  3S9. 

In  the  absence  of  an  express  contract  as 
to  the  degree  of  care  to  be  taken,  he  is 
bound  to  provide  reasonable  feed  and  use 
ordinary  care  to  protect  cattle;  Calland  v. 
Nichols,  30  Neb.  532,  46  N.  W.  631. 

Where  a  number  of  animals  are  taken  to 
pasture  for  an  agreed  compensation,  one  of 
them  cannot  be  taken  away  without  pay- 
ment for  all ;  Yearsley  v.  Gray,  140  Pa.  238, 
21  Atl.  517;  Kroll  v.  Ernst,  34  Neb.  4S2,  51 
N.  W.  1032.  The  lien  of  an  agistor  is  prior 
to  the  claim  of  an  assignee  of  overdue  notes 
secured  by  mortgage  on  the  horses;  Blain  v. 
Manning,  36  111.  App.  214.  That  he  has  no 
lien,  see  Prof.  J.  B.  Ames  in  3  Sel.  Essays 
in  Anglo-Amer.  Leg.  Hist.  290,  citing  5  M. 
&  W.  342,  which  followed  Cro.  Car.  271. 

See  Bailment;  Animal;   Lien. 

AGNATES.  In  Scotch  Law.  Relations  on 
the  father's  side.     See  Agnati. 

AGNATI.  In  Civil  Law.  All  individuals 
subject  for  the  time  being  to  the  same  pa- 
tria  potesta»,  or  who  would  be  so  subject 
were  the  common  ancestor  alive.  Brothers 
and  sisters,  with  their  uncles,  aunts,  neph- 
ews, nieces,  and  other  collaterals  (not  hav- 
ing been  received  by  adoption  or  marriage 
into  another  family),  if  related  through 
males,  were  agnates.  The  civil  issue  of  the 
state  was  the  Agnatic  Family.  Cognates 
were  all  persons  who  could  trace  their  blood 
to  a  single  ancestor  or  ancestress,  and  ag- 
nates were  those  cognates  who  traced  their 
connection  exclusively  through  males.  Maine, 
Anc.  Law. 

"The  agnates  were  that  assemblage  of  per- 
sons who  would  have  been  under  the  patri- 
archal authority  of  some  common  ancestor 
if  he  had  lived  long  enough  to  exercise  it." 
Maine,  Early  Hist,  of  Inst.  106.  A  son  eman- 
cipated by  his  father  lost  all  rights  of  agna- 
tion. 

They  were  called  agnati— adgnati,  from  the  words 
ad  eum  nati.  Ulpianus  says:  "Adgnati  autem  sunt 
cognati  virilis  sexus  ab  eodem  orti:  nam,  post  suos 
et  consanguineos  statim  mihi  proximus  est  con- 
sanguinei  mei  films,  et  ego  ei;  patris  quoque  f rater 
qui  patruus  appellatur ;  deincepsque  ceteri,  si  qui 
sunt,  hinc  orti  in  infinitum;"  Dig.  38,  18.  De  suis, 
2,  §  1.  Thus,  although,  the  grandfather  and  father 
being  dead,  the  children  become  sui  juris,  and  the 
males  become  the  founders  of  new  families,  still 
they  all  continue  to  be  agnates  ;  and  the  agnatio 
spreads  and  is  perpetuated  not  only  in  the  direct 
but  also  in  the  collateral  line.  Marriage,  adoption, 
and  adrogation  also  create  the  relationship  of  the 
agnatio.  In  the  Sentences  of  Paulus,  the  order  of 
inheritance  is  stated  as  follows:  Intestatorum  he- 
reditas,    lege    Duodecim    Tabularum    primum    suis 


heredibus,  deinde  adgnatis  et  aliquando  quoqu* 
gentibus  deferebatur.     See  Cognati. 

AGNATIO.  In  Civil  Law.  The  relation- 
ship of  Agnati. 

AGNOMEN.  A  name  or  title  which  a  man 
gets  by  some  action  or  peculiarity ;  the  last 
of  the  four  names  sometimes  given  a  Roman. 
Thus,  Scipio  Africanus,  from  his  African  vic- 
tories. Ainsworth,  Lex. ;  Calvinus,  Lex.  See 
Nomen. 

AGNOSTIC.     See  Oath. 

AGRARIAN    LAWS.     In    Roman   Law*. 

Those  laws  by  which  the  commonwealth  dis- 
posed of  its  public  land,  or  regulated  the 
possession  thereof  by  individuals  were  term- 
ed Agrarian  Laws. 

The  greater  part  of  the  public  lands  acquired  by 
conquest  were  laid  open  to  the  possession  of  any 
citizen,  but  the  state  reserved  the  title  and  the 
right  to  resume  possession.  The  object  of  many  of 
the  agrarian  laws  was  to  limit  the  area  of  public 
land  of  which  any  one  person  might  take  posses- 
sion. The  law  of  Cassius,  b.  c.  486,  is  the  most  not- 
ed of  these  laws. 

It  was  long  assumed  that  these  laws  were  framed 
to  reach  private  property  as  well  as  to  restrict  pos- 
session of  the  public  domain,  and  hence  the  term 
agrarian  is,  in  legal  and  political  literature,  to  a 
great  degree  fixed  with  the  meaning  of  a  confisca- 
tory law,  intended  to  reduce  large  estates  and  in- 
crease the  number  of  landholders.  Harrington,  in 
his  "Oceana,"  and  the  philosophers  of  the  French 
Revolution,  have  advocated  agrarian  laws  in  this 
sense.  The  researches  of  Heyne,  Op.  4,  351 ;  Nieh- 
buhr,  Hist.  vol.  ii.  trans.  ;  and  Savigny,  Das  Recht 
des  Besitzes,  have  redeemed  the  Roman  word  from 
the  burden  of  this  meaning. 

AGREAMENTUM.     Agreement. 
Spelman  says  that  it  is  equivalent  In  meaning  to 
aggregatio  mentium,  though  not  derived  therefrom. 

AGREE.  To  concur  with  or  assent. 
Thornton  v.  Kelly,  11  R.  I.  498;  to  promise 
or  engage;  Packard  v.  Richardson,  17  Mass. 
122,  9  Am.  Dec.  123;  to  contract;  McKisick 
v.  McKisick,  6  Meigs  (Tenn.)  427.  To  say 
that  a  jury  agrees  upon  a  verdict  is  equiva- 
lent to  find;  Benedict  v.  State,  14  Wis.  423. 

It  sometimes  means  a  grant  or  covenant, 
as  when  a  grantor  agrees  that  no  building 
shall  be  erected  on  an  adjoining  lot;  Hogan 
v.  Barry,  143  Mass.  538,  10  N.  E.  253. 

AGREE  (Fr.).  A  person  authorized  to 
represent  a  litigant  before  the  Tribunals  of 
Commerce  in  France.  If  such  person  be  a 
lawyer,  he  is  called  an  avocat-agre'e'.  Coxe, 
Manual  of  French  Law. 

AGREED   STATEMENT    OF    FACTS.     See 

Case  Stateo. 

AGREEMENT.  A  coming  together  of  par- 
ties in  opinion  or  determination;  the  union 
of  two  or  more  minds  in  a  thing  done  or  to 
be  done ;  a  mutual  assent  to  do  a  thing. 
Comyn,  Dig.  Agreement,  A  1 ;  Plowd.  5  o,  6  o. 

Aggregatio  mentium. — When  two  or  more 
minds  are  united  in  a  thing  done  or  to  be 
done. 

It  ought  to  be  so  certain  and  complete  that  either 
party  may  have  an  action  on  it,  and  there  must  be 
a  quid  pro  quo;    Dane,  Abr.  c.  11. 


AGREEMENT 


165 


AGREEMENT 


The  consent  of  two  or  more  persons  con- 
curring, the  one  in  parting  with,  the  other 
in  receiving,  some  property,  right,  or  bene- 
fit; Bacon,  Abr.  An  act  in  the  law  where- 
by two  or  more  persons  declare  their  assent 
as  to  any  act  or  thing  to  be  done  or  forborne 
by  some  or  one  of  those  persons  for  the  use 
of  the  others  or  other  of  them.  Poll.  Contr. 
3,  adopted  in  [1SS7]  36  Ch.  D.  698.  It  must  be 
concerned  with  duties  or  rights  which  can 
be  d<;ilt  with  in  a  court  of  justice;  Poll. 
Contr.  3. 

"The  expression  by  two  or  more  persons 
of  a  common  intention  to  affect  the  legal 
relations  of  those  persons."    Anson,  Contr.  3. 

An  agreement  "consists  of  two  persons  be- 
ing of  the  same  mind,  intention,  or  mean- 
ing concerning  the  matter  agreed  upon." 
Leake,  Contr.  12. 

"Agreement"  is  seldom  applied  to  specialties ; 
"contract"  is  generally  confined  to  simple  contracts; 
"promise"  refers  to  the  engagement  of  a  party 
without  reference  to  the  reasons  or  considerations 
for  it,  or  the  duties  of  other  parties;    Pars.  Contr.  6. 

An  agreement  ceases  to  be  such  by  being  put  in 
writing  under  seal,  but  not  when  put  in  writing 
for  a  memorandum ;    Dane,  Abr.   c.  11. 

It  is  a  wider  term  than  "contract ;"  Anson, 
Contr.  4;  an  agreement  might  not  be  a  con- 
tract, because  not  fulfilling  some  requirement 
of  the  law  of  the  place  in  which  it  is  made. 

The  meaning  of  the  contracting  parties 
Is  their  agreement;  Whitney  v.  Wyman,  101 
U.  S.  396,  25  L.  Ed.  1050. 

An  agreement  of  sale  may  imply  not  mere- 
ly an  obligation  to  sell,  but  an  obligation  on 
the  part  of  the  other  party  to  purchase, 
while  an  agreement  to  sell  is  simply  an  ob- 
ligation on  the  part  of  the  vendor  or  promis- 
or to  complete  his  promise  of  sale ;  Treat  v. 
White,  181  U.  S.  264,  21  Sup.  Ct  611,  45  L. 
Ed.  853. 

In  its  correct  sense,  as  used  in  the  statute 
of  frauds,  it  signifies  a  mutual  contract  up- 
on a  consideration,  between  two  or  more 
parties ;  5  East  10  ;  although  frequently  Aised 
in  a  loose,  incorrect,  sense  as  synonymous 
with  promise  or  undertaking;  id.;  but,  in 
its  popular  signification  it  means  no  more 
than  concord,  the  union  of  two  or  more 
minds,  concurrence  of  views  and  intention. 
Everything  done  or  omitted  by  the  compact 
of  two  or  more  minds  is  universally  and 
familiarly  called  an  agreement.  Whether  a 
consideration  exists  is  a  distinct  idea  which 
does  not  enter  into  the  popular  notion.  In 
most  instances  any  consideration  except  the 
voluntary  impluse  of  minds  cannot  be  ascrib- 
ed to  the  numberless  agreements  that  are 
made  daily;  Marcy  v.  Marcy,  9  Allen  (Mass.) 
11 ;  Sage  v.  Wilcox,  6  Conn.  85.  Taken  alone, 
it  is  sufficiently  comprehensive  to  embrace 
all  forms  of  stipulations,  written  or  verbal ; 
Wharton  v.  Wise,  153  U.  S.  155,  14  Sup.  Ct. 
783,  38  L.  Ed.  669. 

The  writing  or  instrument  which  is  evi- 
dence of  an  agreement. 

The  agreement  may  be  valid,  and  yet  the  written 
evidence  thereof   insufficient;     as,    If   a   promissory 


note  be  given  for  twenty  dollars,  the  amount  of  a 
previous  debt,  where  the  note  may  generally  be 
neglected  and  the  debt  collected  by  means  o- 
evidence  ;  or,  again,  If  a  note  good  in  form  be  given 
for  an  Illegal  consideration,  in  which  case  the  in- 
strument Is  good  and  the  agreement  void. 

See  Accobd  and  Satisfaction  ;  Accept- 
ance ;  Consideration  ;  Contract  ;  Novation  ; 
Performance  ;    Rescission  ;    Interpretation. 

The  parties  must  agree  or  assent  There 
must  be  a  definite  offer  by  one  party  accepted 
by  the  other;  Ives  v.  Hazard,  4  R.  I.  14,  67 
Am.  Dec.  500 ;  Emerson  v.  Graff,  29  Pa.  358. 
There  must  be  a  communication  of  assent  by 
the  party  accepting ;  a  mere  mental  assent 
to  the  terms  in  his  own  mind  is  not  enough ; 
L.  R.  2  App.  Ca.  691.  See  Allen  v.  Chouteau, 
102  Mo.  309,  14  S.  W.  869.  But  the  assent 
need  not  be  formally  made ;  it  can  be  infer- 
red from  the  party's  acts ;  L.  R.  6  Q.  B.  (JOT ; 
L.  R.  10  C.  P.  307 ;  Smith  v.  Ingram,  90  Ala. 
529,  8  South.  144.  They  must  assent  to  the 
same  thing  in  the  same  sense;  Eliason  v. 
Henshaw,  4  Wheat.  (U.  S.)  225,  4  L.  Ed.  556 ; 
Greene  v.  Bateman,  2  Woodb.  &  M.  359,  Fed. 
Cas.  No.  5,762 ;  9  M.  &  W.  535;  L.  R.  6  Q. 
B.  597;  New  York  Life  Ins.  Co.  v.  Levy's 
Adm'r,  122  Ky.  457,  92  S.  W.  325,  5  L.  R.  A. 
(N.  S.)  739.  The  assent  must  be  mutual  and 
obligatory;  there  must  be  a  request  on  one 
side,  aud  an  assent  on  the  other;  5  Bingh. 
N.  C.  75 ;  Abbott  v.  Hapgood,  150  Mass.  248, 
22  N.  E.  907,  5  L,  R.  A.  5S6,  15  Am.  St.  Rep. 
193.  Where  there  is  a  misunderstanding  as 
to  the  date  of  performance  there  is  no  con- 
tract, for  want  of  mutual  assent;    Pittsburg 

6  S.  Coal  Co.  v.  Slack  &  Co.,  42  La.  Ann.  107, 

7  South.  230 ;  or  where  there  is  a  misunder- 
standing as  to  the  manner  of  payment;  Rob- 
inson &  Farrell  v.   Estes,  53  Mo.  Ap] 

The  assent  must  comprehend  the  whole  of 
the  proposition ;  it  must  be  exactly  equal  to 
its  extent  and  provision,  and  it  must  not 
qualify  them  by  any  new  matter;  1  Pars. 
Contr.  400 ;  and  even  a  slight  qualification 
destroys  the  assent;  5  M.  &  W.  535;  Horn- 
beck's  Ex'r  v.  American  Bible  Society,  2 
Sandf.  Ch.  (N.  Y.)  133.  The  question  of  as- 
sent when  gathered  from  conversations  is 
for  the  jury ;  Thruston  v.  Thornton,  1  Cush. 
(Mass.)  S9;  De  Bidder  v.  MeKnight,  13 
Johns.  (N.  Y.)  294. 

A  sufficient  consideration  for  the  agree- 
ment must  exist;  2  Bla.  Com.  444;  2  Q.  B. 
S51 ;  5  Ad.  &  E.  54S ;  as  against  third  par- 
ties this  consideration  must  be  good  or  valu- 
able; 10  B.  &  C.  606:  as  between  the  par- 
ties it  may  be  equitable  only;  1  Pars.  Contr. 
431. 

But  it  need  not  be  adequate,  if  only  it  have 
some  real  value;  2  Sch.  &  L.  395,  n.  a;  11  Ad. 
&  E.  9S3  ;  Hubbard  v.  Coolidge,  1  Mete.  (Mass.) 
S4;  Judy  v.  Louderman,  48  Ohio  St.  562,  29  X. 
E.  1S1,  refraining  from  use  of  tobacco  and 
liquor  for  a  period  is  sufficient  consideration 
for  a  promise  to  pay  the  party  a  sum  of  mon- 
ey ;  Bamer  v.  Sidway,  3L'4  N.  Y.  538,  27  N. 
E.  256,  12  L.  R.  A.  463,  21  Am.  St.  Rep.  693. 


AGREEMENT 


ICO 


AGREEMENT 


Tf  the  consideration  be  illegal  in  whole  or  in 
part,  the  agreement  will  be  void  :  Donallen 
»-.  Lennox.  6  Dana  (Ky.)  ".U  ;  Town  of  Hines- 
burgh  v.  Sumner,  9  Vt.  23,  31  Am.  Hoc.  599; 
Filson's  Trustees  v.  Bimes,  5  Pa.  452,  47  Am. 
Dec.  422;    Deering  v.  Chapman,  22  Me.  -Ins. 

39  Am.  Dec.  592;  Ashbroofe  v.  Dfcle,  27  Mb. 
App.  649;  Smith  v.  Steely,  SO  [a.  738,  45  N. 
\v.  oil'.  A  contract  to  regulate  the  price  of 
commodities  at  a  certain  specified  amount  is 
a  contract  in  restraint  of  trade,  without  con- 
sideration and  cannot  be  enforced;    03  Law 

5;  Vulcan  Powder  Co.  v.  Powder  Co.,  96 
Cal.  510,  :;i  pac.  581,  31  Am.  St  Rep.  242; 
so  also  if  the  consideration  be  impossible;  5 
Viner,  Abr.  1 10.  Condition;  Co.  Litt  206  a; 
Shepp.  Touchst.  164;  L.  11.  5  C.  P.  5SS;  2 
Lev.  161.     See  Consideration. 

The  agreement  may  he  to  do  anything 
which  is  lawful,  as  to  sell  or  buy  real  estate 
or  personal  property.  lint  the  evidence  of 
the  sale  of  real  property  must  generally  be 
by  deed,  sealed;  and  in  many  cases  agree- 
ments in  regard  to  personal  property  must 
be  in  writing.     See  Statute  of  Frauds. 

The  construction  to  be  given  to  agree- 
ments is  to  be  favorable  to  upholding  them, 
and  according  to  the  intention  of  the  parties 
at  the  time  of  making  it,  as  nearly  as  the 
meaning  of  the  words  used  and  the  rules  of 
law  will  permit;  2  Kent  555;  1  H.  Bla.  569, 
614;  30  Eng.  L.  &  E.  479;  Potter  v.  Ins. 
Co.,  5  Hill  (N.  Y.)  147;    Richer  v.  Fairbanks, 

40  Me.  43;  10  A.  &  E.  326;  Thrall  v.  New- 
ell, 19  Vt.  202,  47  Am.  Dec.  682.  This  in- 
tent cannot  prevail  against  the  plain  mean- 
ing of  words ;  5  M.  &  W.  535.  Neither  will 
it  be  allowed  to  contravene  established  rules 
of  law. 

And  that  the  agreement  may  be  support- 
ed, it  will  be  construed  so  as  to  operate  in  a 
way  somewhat  different  from  that  intended, 
if  this  will  prevent  the  agreement  from  fail- 
ing altogether;  Brewer  v.  Hardy,  22  Pick. 
(Mass.)  376,  33  Am.  Dec.  747;  Rogers  v.  Fire 
Co..  9  Wend.  (N.  Y.)  611 ;  Bryan  v.  Bradley, 
16  Conn.  474. 

Agreements  are  construed  most  strongly 
against  the  party  proposing  (i.  e.,  contra  pro- 
ferentem); 6  M.  &  W.  662;  2  Pars.  Contr. 
20 :  3  B.  &  S.  929 :  Deblois  v.  Earle,  7  R.  I. 
-*>.     See  Contracts. 

The  effect  of  an  agreement  is  to  bind  the 
parties  to  the  performance  of  what  they 
have  thereby  undertaken.  In  case  of  fail- 
ure, the  common  law  provides  a  remedy  by 
damages,  and  equity  will  in  some  , cases  com- 
pel a  specific  performance. 

The  obligation  may  be  avoided  or  destroy- 
ed by  performance  (q.  v.),  which  must  be  by 
him  who  was  bound  to  do  it;  and  whatso- 
ever is  necessary  to  be  done  for  the  full  dis- 
charge of  this  duty,  although  only  incidental 
to  it,  must  be  done  by  him;  11  Q.  B.  36S; 
4  B.  &  S.  556;  Fauble  v.  Davis,  48  la.  462; 
Jennings  v.  Lyons,  :;;)  Wis.  553,  20  Am.  Rep. 
57 ;    by  tender  of  exact  performance  accord- 


ing to  the  terms  of  the  contract,  which  is 
sufficient  when  the  other  party  refuses  to 
accept  performance  under  the  contract;  6 
M.  &  G.  610;  Benj.  Sales  563;  Ans.  Contr. 
:J7l;  an  agreement  to  pay  a  sum  of  money 
upon  receipt  of  certain  funds  is  not  broken 
on  refusal  to  pay  on  receipt  of  part  of  the 
funds;  Fox  v.  Walker,  62  N.  H.  419;  by 
acts  of  the  party  to  be  benefited,  which  pre- 
vent the  performance,  or  where  some  act  is 
to  be  done  by  one  party  before  the  act  of  the 
other,  the  second  party  is  excused  from  per- 
formance, if  the  first  fails;  15  M.  &  W.  109; 
8  Q.  B.  35S;  6  B.  &  C.  325;  10  East  359;  by 
rescission  (q.  v.),  which  may  be  made  by  the 
party  to  be  benefited,  without  any  provision 
therefor  in  the  agreement,  and  the  mere  ac- 
quiescence of  the  other  party  will  be  evi- 
dence of  sufficient  mutuality  to  satisfy  the 
general  rule  that  rescission  must  be  mutual ; 
Hill  v.  Green,  4  Pick.  (Mass.)  114;  Quincy  v. 
Tilton,  5  Greenl.  (Me.)  277;  1  W.  &  S.  442; 
rescission,  before  breach,  must  be  by  agree- 
ment; Leake,  Contr.  7S7 ;  2  H.  &  N.  79; 
6  Exch.  39;  by  acts  of  law,  as  confusion, 
merger  ;  Baxter  v.  Downer,  29  Vt.  412  ;  death, 
as  when  a  master  who  has  bound  himself  to 
teach  an  apprentice  dies;  inability  to  per- 
form a  personal  service,  such  as  singing  at 
a  concert;  L.  R.  6  Exch.  269;  or  extinction 
of  the  subject-matter  of  the  agreement.  See 
also  Assent;  Contract;  Discharge  of  Con- 
tracts;   Parties;    Payment;    Rescission. 

AGREEMENT   FOR   INSURANCE.   An 

agreement  often  made  in  short  terms  pre- 
liminary to  the  filling  out  and  delivery  of  a 
policy  with  specific  stipulations. 

Such  an  agreement,  specifying  the  rate  of 
premium,  the  subject,  and  risk,  and  amount 
to  be  insured,  in  general  terms,  and  being 
assented  to  by  the  parties,  is  binding ;  Tyler 
v.  Insurance  Co.,  4  Rob.  (N.  Y.)  151 ;  Oliver 
v.  Insurance  Co.,  2  Curt.  277,  Fed.  Cas.  No. 
10,498;  Trustees  of  First  Baptist  Church  v. 
Insurance  Co.,  19  N.  Y.  305.  It  is  usually  in 
writing,  but  may  be  by  parol  or  by  parol  ac- 
ceptance of  a  written  proposal ;  Union  Mut. 
Ins.  Co.  v.  Insurance  Co.,  2  Curt.  524.  Fed. 
Cas.  No.  14,372 ;  Commercial  Mut.  Marine 
Ins.  Co.  v.  Insurance  Co.,  19  How.  (U.  S.) 
318,  15  L.  Ed.  636;  Mobile  Marine  Dock  & 
Mutual  Ins.  Co.  v.  McMillan,  31  Ala.  711; 
Ellis  v.  Insurance  Co.,  50  N.  Y.  402,  10  Am. 
Rep.  495;  Ela  v.  French,  11  N.  H.  356.  It 
must  be  in  such  form  or  expression  that  the 
parties,  subject,  and  risk  can  be  thereby  dis- 
tinctly known,  either  by  being  specified  or  by 
references  so  that  it  can  be  definitely  re- 
duced to  writing;  Trustees  of  First  Baptist 
Church  v.  Insurance  Co.,  19  N.  Y.  305. 

Such  an  agreement  must  have  an  express 
or  implied  reference  to  some  form  of  policy. 
The  ordinary  form  of  the  underwriters  in 
like  cases  is  implied,  where  no  other  is  speci- 
fied or  implied ;  Eureka  Ins.  Co.  v.  Robin- 
son, 56  Pa.  256,  94  Am.  Dec.  65;    2  C.  &  P. 


AGREEMENT  FOE,  INSURANCE        1G7 


AGRICULTURE 


91;  3  B.  &  Ad.  90G;  Hubbard  v.  Insurance 
Co.,  33  la.  325,  11  Am.  Rep.  125;  Barre  v. 
Insurance  Co.,  76  la.  609,  41  N.  \V.  373; 
Oliver  v.  Insurance  Co.,  2  Curt.  277,  Fed.  Cas. 
No.   10,498. 

Wbere  tbe  agreement  is  by  a  communica- 
tion between  parties  at  a  distance,  an  oiler 
by  eitber  will  be  binding  upon  both  on  a 
despatch  by  tbe  otber  of  bis  acceptance 
within  a  reasonable  or  the  prescribed  time, 
and  prior  to  the  offer  having  been  counter- 
manded; 1  Phil.  Ins.  §§  17,  21;  Myers  v.  In- 
surance Co.,  27  Pa.  268,  07  Am.  Dee.  4G2. 

It  is  a  common  practice  to  "bind"  insur- 
ance against  fire  for  a  short  period  by  mere 
oral  communication. 

See  Policy;    Insurance. 

AGRICULTURAL  HOLDING.  Land  culti- 
vated for  profit  in  some  way.  Within  the 
meaning  of  the  English  Agricultural  Hold- 
ings act  of  1SS3,  the  term  will  not  include 
natural  grass  lands.  Such  lands  are  pastoral 
holdings.    32  S.  J.  630. 

AGRICULTURAL  PRODUCT.  That  which 
is  the  direct  result  of  husbandry  and  the 
cultivation  of  the  soil.  The  product  in  its 
natural  unmanufactured  condition;  Getty 
v.  .Milling  Co..  40  Kan.  2S1,  19  Pac.  617.  It 
has  been  held  not  to  include  beef  cattle; 
Davis  &  Co.  v.  City  of  Macon,  64  Ga.  128,  37 
Am.  Rep.  60. 

AGRICULTURAL  SOCIETY.  One  for  the 
promotion  of  agricultural  interests,  such  as 
the  improvement  of  land,  breeds  of  cattle, 
etc.  Downing  v.  State  Board  of  Agriculture, 
129  Ind.  443,  28  N.  E.  123.  614,  12  L.  R.  A. 
664.  It  is  held  a  private  corporation;  Selinas 
v.  State  Agricultural  Society,  60  Vt,  249,  15 
Atl.  117,  6  Am.  St.  Rep.  114:  Esmon  v.  Loder, 
135  Mich.  345,  97  N.  W.  7(59 ;  Brown  v.  Agri- 
cultural Society,  47  Me.  275.  74  Am.  Dec.  484 ; 
Lane  v.  Agricultural  Society,  62  Minn.  175, 
64  N.  W.  382,  29  L.  R.  A.  708 ;  but  where  its 
organization  and  the  powers  of  its  board  of 
directors  are  provided  for  by  statute,  and  it 
is  not  a  society  for  pecuniar;  benefit,  it  is  a 
public  corporation :  Hern  v.  State  Agricul- 
tural Soc,  91  la.  97,  58  N.  W.  1092. 

As  to  their  liability  for  negligence,  see 
Dangerous  Premises. 

AGRICULTURE.  The  cultivation  of  soil 
for  food  products  or  any  other  useful  or  val- 
uable growths  of  the  field  or  garden;  till- 
age, husbandry ;  also,  by  extension,  farm- 
ing, including  any  industry  practised  by  a 
cultivator  of  the  soil  in  connection  with 
such  cultivation,  as  breeding  and  roaring  of 
stock,  dairying,  etc.  The  science  that  treats 
of  the  cultivation  of  the  soil.  Stand.  Diet. 
The  term  refers  to  the  field  or  farm,  with  all 
Its  wants,  appointments  and  products,  as  dis- 
tinguished from  horticulture,  which  refers 
to  the  garden,  with  its  less  important  though 
varied  products;  Dillard  v.  Webb.  55  Ala. 
46S. 

A  person  is  actually  engaged  in   agricul- 


ture when  he  derives  the  support  of  hiinselr 
and  family  in  whole  or  in  part  from  tin    cul- 
tivation of  land;    it  must  i:iug  more 
than  a  garden,  though  it  may  be  l< 
field,   and  the  uniting  of  any  oth<  I    bu 
with  this  is  not  Inconsistent  with  the  pursuit 
of  agriculture;    Springer   v.   Lewis,   22   Pa. 
L93.    See  Bachelder  v.  Bickford,  62  M< 
Simons  v.  Lovell,  7  Heisk.  (Tenn.)  515. 

Within  the  meaning  of  an  exemption  law, 
one  who  cultivates  a  one  acre  lot  and  is  also 
a  butcher  and  day  laborer  is  not  engaged  In 
agriculture. 

AID  AND  ABET.  See  Aiding  and  Abet- 
tino. 

AID  AND  COMFORT.  Help;  support; 
assistance;    counsel;    encouragement. 

The  constitution  of  the  United  States,  art.  3,  s.  3, 
declares  that  adhering  to  the  enemies  of  the  United 
States,  giving  them  aid  and  comfort,  shall  be  trea- 
son. These  words,  as  they  are  to  be  understood  In 
the  constitution,  have  not  received  a  full  judicial 
construction  ;  but  see  Young  v.  U.  S.,  &7  U.  S.  39. 
24  L.  Ed.  992,  as  to  their  meaning  in  the  Act  of  Con- 
gress, March  12,  1863.  See  also  Lamar  v.  Browne, 
92  U.  S.  187,  23  L.  Ed.  650;  U.  S.  v.  Klein.  13  Wall 
(U.  S.)  1L8,  20  L.  Ed.  519 ;  Hanauer  v.  Doane,  12 
Wall.  (U.  S.)  317,  20  L.  Ed.  4119;  Carlisle  v.  U.  S., 
U    Wall.    (U.    S.)    147,    21    L.    Ed.    ■!.  -ki    v. 

U.  S.,  7  Ct.  of  CI.  398;  Bond  v.  U.  S.,  2  Ct.  of  CI. 
533.  They  import  help,  support,  assistance,  counte- 
nance, encouragement.  The  voluntary  execution  of 
an  official  bond  of  a  commissioned  officer  of  the 
Confederacy  from  motives  of  personal  friendship,  Is 
giving  aid  and  comfort;  U.  S.  v.  Padelford,  9  Wall. 
(U.  S.)  539,  19  L.  Ed.  788;  as  is  the  giving  of  me- 
chanical skill  to  build  boats  for  the  Confederacy  ; 
Gearing  v.  U.  S.,  3  Ct.  of  CI.  172.  The  word  aid, 
which  occurs  in  the  stat.  Westm.  I.  c.  14. 
plained  by  Lord  Coke  (2  Inst.  1SJ)  as  comprehend- 
ing all  persons  counselling,  abetting,  plotting,  as- 
senting, consenting,  and  encouraging  to  do  the  act 
(and  he  adds,  what  is  not  applicable  to  the  crime 
of  treason),  who  are  not  present  when  the  act  is 
done.  See  also  1  Burn,  Just.  5,  6 ;  4  Bla.  Com. 
37,  3S. 

To  constitute  aid   and   comfort   It  is  not  c 
that  the  effort  to  aid  should  be  successful   and  ac- 
tually   render    assistance;     U.    S.    v.    Greathouse,    4 
Sawy.  472,  Fed.   Cas.  No.  15,2.",;. 

AID    BONDS.     See  Bonds. 

AID  OF  THE  KING.  A  city  or  borough 
that  holds  a  fee  farm  of  the  king,  if  any- 
thing be  demanded  against  them  which  be- 
longs thereto,  may  pray  in  aid  of  the  king. 
In  these  cases  the  proceedings  are  stopped 
until  the  king's  counsel  is  heard  to  say  what 
they  think  fit  for  avoiding  the  Icing's  preju- 
dice; and  this  aid  shall  not  in  any  ease  be 
granted  after  issue:  because  the  king  ought 
not  to  rely  on  the  defence  made  by  another. 
Terines  de  la  Ley. 

AID  PRAYER.  A  petition  to  the  court 
calling  in  help  from  another  person  who  has 
an  interest  in  the  matter  in  dispute.  For 
example,  a  tenant  for  life,  by  the  cu 
or  for  years,  being  impleaded,  may  pray  aid 
Of  him  in  reversion;  that  is,  desire  the 
court  that  he  may  be  called  by  writ,  to  allege 
what  be  thinks  proper  for  the  maintenance 
Of  the  right  of  the  person  calling  him,  and 
of  his  own.     Fitzh.  .Nat  Brev.  50. 


AIDER  BY  VERDICT 


1G8 


AIDING  AND  ABETTING 


AIDER  BY  VERDICT.  The  presumption  [ 
which  arises  after  verdict,  whether  in  a  civil 
or  criminal  case,  that  those  facts,  without 
proof  of  which  the  verdict  could  not  have 
been  found,  were  proved,  though  they  are 
not  distinctly  alleged  in  the  record;,  pro- 
vided it  contains  terms  sutliciently  general 
to  comprehend  them  in  reasonable  intend- 
ment 

The  rule  is  that  where  a  matter  is  so  es- 
sentially necessary  to  be  proved  that,  had  it 
not  been  in  evidence,  the  jury  could  not  have 
given  such  a  verdict  as  that  recorded,  there 
the  want  of  stating  that  matter  in  express 
terms  in  a  declaration,  provided  it  contains 
terms  sufficiently  general  to  comprehend  it 
in  fair  and  reasonable  intendment,  will  be 
cured  by  the  verdict;  and  where  a  general 
a  negation  must,  in  fair  construction,  so  far 
require  to  be  restricted  that  no  judge  and 
no  jury  could  have  properly  treated  it  in  an 
unrestrained  seuse,  it  may  reasonably  be  pre- 
sumed after  verdict  that  it  was  so  restrained 
at  the  trial ;  1  Maule  &  S.  234 ;  1  Saund. 
(6th  Ed.)  227,  228;  1  Den.  Cr.  Cas.  356;  2 
M.  &  G.  405:  13  M.  &  W.  377 ;  6  C.  B.  136; 
Worster  v.  Proprietors  of  Canal  Bridge,  16 
Pick.  (Mass.)  541;  Wilson  v.  Coffin,  2  Cush. 
(Mass.)  310;  Bartlett  v.  Crozier,  17  Johns. 
(N.  Y.)  439,  458,  8  Am.  Dec.  428;  Kain  v.  R. 
Co.,  29  Mo.  App.  53 ;  Bronnenburg  v.  Rinker, 
2  Ind.  App.  391,  28  N.  E.  568. 

AIDING  AND  ABETTING.  The  offence 
committed  by  those  persons  who,  although 
not  the  direct  perpetrators  of  a  crime,  are 
yet  present  at  its  commission,  doing  some  act 
to  render  aid  to  the  actual  perpeti-ator  there- 
of. 4  Bla.  Com.  34;  Russ.  &  R.  363,  421; 
State  v*  Hildreth,  31  N.  C.  440,  51  Am.  Dec. 
369 ;  U.  S.  v.  Libby,  1  Woodb.  &  M.  221,  Fed. 
Cas.  No.  15,597;  Com.  v.  Knapp,  10  Pick. 
(Mass.)  477,  20  Am.  Dec.  534;  McCarty  v. 
State,  26  Misc.  299.  They  are  principals  in 
tbe  crime;  U.  S.  v.  Boyd,  45  Fed.  851;  En- 
geman  v.  State,  54  N.  J.  L.  247,  23  Atl.  676. 
A  common  purpose  to  subserve  the  joint  in- 
terests of  the  principal  offender  and  his 
aider  and  abettor  by  misapplication  of  the 
funds  of  a  bank  is  not  necessary  to  create  the 
offence  of  aiding  and  abetting  a  bank  officer 
in  misapplying  its  funds  in  violation  of  U. 
S.  Rev.  Stat.  §  5209.  It  is  immaterial  whom 
they  may  have  intended  to  benefit,  if  there 
existed  the  intent  to  defraud  specified  in 
the  act ;  Coffin  v.  U.  S.,  162  U.  S.  664,  16 
Sup.  Ct.  943.  40  L.   Ed.  1109. 

A  principal  in  the  second  degree  is  one 
who  is  present  aiding  and  abetting  the  fact 
to  be  done.  1  Hale,  PL  Cr.  615 ;  1  Bish.  Cr. 
L.  648  (4).  See  State  v.  M'Gregor,  41  N.  H. 
407,  Hill  v.  State,  28  Ga.  604;  Doan  v.  State, 
26  Ind.  490;  State  v.  Squaires,  2  Nev.  22G; 
State  v.  Fley,  2  Brev.  (S.  C.)  338,  4  Am.  Dec. 
583.  Actual  presence  is  not  necessary:  it  is 
sufficient  to  be  so  situated  as  to  come  readily 
to  the  assistance  of  his  fellows;  Green  v. 
State,  13  Mo.  382. 


One  cannot  be  convicted  as  aider  and  abet- 
tor unless  the  principal  is  jointly  indicted 
with  him,  or  if  indicted  alone,  the  indictment 
should  give  the  name  and  description  of  the 
principal;  Mulligan  v.  Com.,  84  Ky.  229,  1 
S.  W.  417,  and  the  one  charged  as  an  abettor 
may  be  convicted  as  principal ;  Benge  v. 
Com.,  92  Ky.  1,  17  S.  W.  146,  and  the  abettor 
may  be  convicted  of  murder  in  the  second 
degree,  though  the  principal  has  been  acquit- 
ted ;  State  v.  Whitt,  113  N.  C.  716,  18  S.  E. 
715;    State  v.  Bogue,  52  Kan.  79,  34  Pac.  10. 

The  aider  and  abettor  in  a  misdemeanor 
is  chargeable  as  principal;  Com.  v.  Ahearn, 
160  Mass.  300,  35  N.  E.  853 ;  U.  S.  v.  Sykes, 
58  Fed.  1000. 

To  aid  or  abet  a  breach  of  an  injunction 
decree  is  contempt  of  court;  [1897]  1  Ch. 
545.    See  Accessoby;  Pbincipal;  Abettor. 

AIDS.  In  English  Law.  A  species  of  tax 
payable  by  the  tenant  of  lands  to,  his  supe- 
rior lord  on  the  happening  of  certain  events. 

They  were  originally  mere  benevolences  granted 
to  the  lord  in  certain  times  of  danger  and  distress, 
but  soon  came  to  be  claimed  as  a  right.  They  were 
originally  given  in  three  cases  only,  and  were  of 
uncertain  amount.  For  a  period  they  were  de- 
manded in  additional  cases;  but  this  abuse  was 
corrected  by  Magna  Carta  (of  John)  and  the  stat. 
25  Bdw.  I.  ( conftrmatio  cartarum) ,  and  they  were 
made  payable  only, — to  ransom  the  lord's  person, 
when  taken  prisoner;  to  make  the  lord's  eldest  son 
a  knight;  to  marry  ihe  lord's  eldest  daughter,  by 
giving  her  a  suitable  portion.  The  first  of  these  re- 
mained uncertain  ;  the  other  two  were  fixed  by  act 
of  parliament  (25  Edw.  III.  c.  11)  at  twenty  shillings 
each,  being  the  Supposed  twentieth  part  of  a 
knight's  fee;  2  Bla.  Com.  64.  They  were  abolished 
by  the  12  Car.  II.  c.  24 ;  2  Bla.  Com.  77,  n.  See  1 
Poll.   §   Maitl.   330. 

AIEL   (spelled  also  Ayel,  Aile,  and  Ayle). 

A  writ  which  lieth  where  the  grandfather 
was  seized  in  his  demesne  as  of  fee  of  any 
lands  or  tenements  in  fee  simple  the  day 
that  he  died,  and  a  stranger  abateth  or  en- 
tereth  the  same  day  and  dispossesseth  the 
heir.  Fitzh.  Nat.  Brev.  222;  Termes  de  la 
Ley;  3  Bla.  Com.  186;  2  Poll.  &  Maitl.  57. 
See  Abatement. 

AIELESSE  (Norman).  A  grandmother. 
Kelham. 

AILE.  A  corruption  of  the  French  word 
aieul,  grandfather,    see  Aiel. 

AIR.  No  property  can  be  had  in  the  air; 
it  belongs  equally  to  all  men,  being  indispen- 
sable to  their  existence.  But  this  must  be 
understood  with  this  qualification,  that  no 
man  has  a  right  to  use  the  air  over  another 
man's  land  in  such  a  manner  as  to  be  inju- 
rious to  him.  To  poison  or  materially  to 
change  the  air,  to  the  annoyance  of  the  pub- 
lic, is  a  nuisance ;  Cro.  Car.  510 ;  1  Burr. 
333 ;    see  Nuisance. 

That  abutting  landowners  have  rights  of 
light  and  air  over  a  public  highway  is  held 
in  many  cases ;  Townsend  v.  Epstein,  93  Md. 
537,  49  Atl.  629,  52  L.  R.  A.  409,  86  Am.  St. 
Rep.  441;  Story  v.  R.  R.  Co.,  90  N.  Y.  122, 
43  Am.  Rep.  146;    Adams  v.  R-  R.  Co.,  39 


AIR 


169 


AIR 


Minn.  2SG,  39  N.  W.  620,  1  L.  R.  A.  493,  12  i  95  Wis.  10,  09  N.  W.  818;  Rome  Build'       & 

Am.  St.  Rep.  044;   Baruett  v.  Johnson,  15  N.  Conveyance  Co.   v.  City  of  Roanoke,  91   Va 

J.  Eq.  481;    Field  v.  Barling,  149  111.  550,  37  52,  20  S.   B.  895,  U7  L.  It.  A. 

N.  E.  850,  24  L.  R.  A.  400,  41  Am.   St.  Rep.  Richmond,  17L'   U.   S.  82,  19  Sup.  Ct.   II 

311.     This  right  is  said  in  Barnett  v.  John-  l.    Ed,    37-1 ;    Willets    Mfg.    Co.    v.    Board    of 

son,  15  N.  J.  Eq.  481,  to  be  founded  in  such  Chosen    Freeholders   of    Mercer   ( 

an  urgent  necessity  -that  all  laws  and  legal  x.  J.  L.  95,  40  Atl.  782;  Brand  v.  M 

proceedings  take  It  for  granted;    a  right  so  !  County,  38  Or.  79,  00  Pac.  39 

strong  that  it  protects  Itself,  so  urgent  that  50  l.  R.  A.  389,  84  Am.  St  Rep    772;   Mead 

upon  any  attempt  to  annul  or  infringe  it,  it  v.  Portland,  45  Or.   1,  70  Pac.  347,   afl 

would   set  at   defiance  all    legislative   enact-  in  200  O.  S.  148,  20  Sup.  Ct.   171    5     I 

ments  and  all  judicial  decisions.     This  case,  .11:;.   Scars  v>  Crockcr)  1S4  MaSs.  5S8    69  x 

it    has   been    said,   anticipated   the   principle  gj   ;;oj    jqq  Am    <-t    j,        -T7 


upon  which  compensation  was  at  last  secured 
in  the  elevated  railroad  cases  in  New  York; 
1  Lewis,  Em.  Doin.  1S3 ;  Muhlker  v.  R.  Co., 
197  U.  S.  544,  25  Sup.  Ct.  522,  49  E.  Ed.  872, 
where  it  is  said:  "It  is  manifest  that  ease- 
ments of  light  and  air  cannot  be  made  de- 
pendent upon  easement  of  access,  and  wheth- 
er they  can  be  taken  away  in  the  interest  of 
the  public  under  the  conditions  upon  which 
the  city  obtained  title  to  the  streets"  depends 
upon  the  cases  of  Story  v.  R.  Co.,  90  N.  Y. 
122.  43  Am.  Rep.  140,  and  Lahr  v.  R.  Co.,  104 
N.  Y.  208,  10  N.  E.  528. 

In  the  Story  Case,  the  extent  of  the  abut- 
ting owner's  right  was  defined  to  be  not  only 
access  to  the  lot,  but  light  and  air  from  the 
street.     The   court  said:    "The   street  oecu 


In  some  jurisdictions  it  is  also  held  that 
recovery  cannot  be  had  by  an  abutting  own- 
er because  of  the  interference  with  the  light, 
air  or  prospect  of  his  property  through  an 
elevation  of  railroad  tracks,  in  the  absence 
of  any  taking  of  his  land  or  destruction  of 
his  easements,  under  a  statute  requiring 
compensation  to  be  made  for  all  d 
caused  by  the  taking  of  land,  by  the  < 
or  discontinuance  of  a  private  way,  or  by 
the  taking  of  an  easement;  McKeon  v.  R. 
Co.,  199  Mass.  292,  85  X.  K.  475,  20  L.  R.  A. 
(N.  S.)  1001;  Egerer  v.  R.  Co.,  49  Hun  605, 
2  N.  Y.  Supp.  09;  and  to  the  same  effect, 
Austin  v.  R.  Co.,  108  Ga.  <">7i.  34  S.  ! 
47  L.  R.  A.  755;  Pennsylvania  R.  Co.  v.   Lip- 


pies  the  surface,  and  to  its  uses  the  rights    Pmcott,  110  Pa.  472,   9  Atl.  871,  2  Am.   St. 
of   the   adjacent   lots   are   subordinate,    but    ReP-   G18;    Jones  v.   R.   Co.,   151   Pa. 
above   the  surface   there  can   be   no   lawful    AtL  134i  17  L-  R-  A-  7r,s-  -0'1  Am.  St.  Re] 
obstruction  to  the  access  of  light  and  air,  to    In    Selden   v.    City   of  Jacksonville.   28 
the  detriment  of  the  abutting  owner;'*    and    558>  10  South.  457,  14  L.  R.  A.  370,  29  Am. 
"The  elements  of  light  and  air  are  both  to  |  St-  ReP-  278-  cited  and  approved  in  Saner  v. 
be  derived  from  the  space  over  the  land  on;  City   of  New  York,  200   1".    S.   544,   27   Sup. 


the  surface  of  which  the  street  is  construct- 
ed, and  which  is  made  servient  for  that  pur- 
pose." It  is  said  that  in  that  case  a  dis- 
tinction was  clearly  made  hetween  the  rights 
of  abutting  owners  in  the  surface  of  the 
street  and  their  rights  in  the  space  above 
the  street ;  Muhlker  v.  R.  Co.,  197  U.  S.  544, 
25  Sup.  Ct.  522,  49  L.  Ed.  S72,  where  it  was 
held  that  the  owner  was  protected  against 
impairment  of  his  easements  of  light  and  air 
by  the  substitution  by  a  railway  company 
of  an  elevated  structure  in  lieu  of  its  sur- 
face or  partly  depressed  roadbed  which  oc- 
cupied the  street  at  the  time  of  his  purchase. 


Ct.  686,  51  L.  Ed.  1170,  it  is  said  that  there 
are,  incident  to  property  abutting  on  a  street 
certain  property  rights  which  the  public 
generally  do  not  possess,  viz.:  the  right  of 
ingress  and  egress  to  and  from  the  lot  by 
the  way  of  the  street,  and  of  light  and  air. 
These  incidental  rights  are,  under  a  consti- 
tutional prohibition  simply  against  the  "tak- 
ing" or  "appropriation"  of  private  property, 
subordinate  to  the  right  of  the  state  to  al- 
ter a  grade  or  otherwise  improve  a  street. 
The  original  and  all  subsequent  purchasers 
of  abutting  lots  take  with  the  implied  un- 
derstanding that  the  public  shall   have  the 


The  erection  over  a  street  of  an  elevated  right  to  improve  or  alter  the  street  so  far  as 
viaduct,  intended  for  general  public  travel,  \  may  be  necessary  for  its  use  as  a  street,  and 
and  not  devoted  to  the  exclusive  use  of  a  j  that  they  can  sustain  no  claim  for  da 
private  transportation  company,  is  a  legiti-  \  resulting  to  their  lots  or  property  from  the 
mate  street  improvement  equivalent  to  a  improvement  or  destruction  of  such  inei- 
change  of  grade;  and  as  in  the  case  of  a  dental  rights  as  a  mere  consequence  of  the 
change  of  grade,  an  owner  of  land  abutting    lawful  use  or  improvement  of  the 


on  the  street  is  not  entitled  to  damages  for 
the  impairment  of  access  to  his  land  and  the 
lessoning  of  the  circulation  of  light  and  air 


a   highway. 

One  may  erect  a   high   fence  shutting   off 
light    and    air    from    his   neighbor;    Saddler 


over  it;    Selden   v.   City  of  Jacksonville,  28    v.  Alexander   (Ky.)   50  S.  W.  518;  Giller  v 
Fla.  558,  10  South.  457,  14  L.  R.  A.  370,  29    West,  102  Ind.  17.  69  X.  B.  548;  Metz  v.  Tier- 


Am.  St.  Rep.  27S;  Willis  v.  Winona  City, 
59  Minn.  27,  60  N.  W.  814,  20  L.  R.  A.  142 ; 
Colclough  v.  City  of  Milwaukee,  92  Wis.  182, 
65  N.  W.  1039 ;  Walish  v.  City  of  Milwaukee, 


ney,  13  X.  M.  363,  83  Pac.  7SS;  Metzger  v. 
Hochrein,  107  Wis.  267,  83  N.  W.  308,  50  L. 
R.  A.  305,  81  Am.  St.  Rep.  841 ;  even  though 
his  motive  is  to  annoy;  Metzger  v.  Hochrein, 


AIR 


170 


ALASKA 


107  Wis.  207,  83  N.  W.  308,  50  L.  R.  A.  305, 
81  Am.  St.  Rep.  841 ;  Bordeaux  v.  Greene,  22 
Mont  254,  56  Pac.  218,  74  Am.  St.  Rep.  600. 
See  Easement;  Eminent  Domain;  An- 
Cient  Lights. 

AIR    SHIP.     See  Aviation. 

AISIAMENTUM  (spelled  also  Esamenttun, 
Aismentum).    An  easement    Spelman  Gloss. 

AJUAR.  In  Spanish  Law.  The  jewels  and 
furniture  which  a   wife  brings  in  marriage. 

AJUTAGE  (spelled  also  Adjutage).  A 
conical  tube  used  in  drawing  water  through 
an  aperture,  by  the  use  of  which  the  quan- 
tity of  water  drawn  is  much  increased. 

When  a  privilege  to  draw  water  from  a 
canal,  through  the  forebay  or  tunnel,  by 
means  of  an  aperture,  has  been  granted,  it 
is  not  lawful  to  add  an  ajutage,  unless  such 
was  the  intention  of  the  parties;  Schuylkill 
Nav.  Co.  v.  Moore,  2  Whart   (Pa.)   477. 

ALABAMA.  One  of  the  United  States  of 
America,  being  the  ninth  admitted  into  the 
Union.  It  was  formerly  a  part  of  Georgia, 
but  in  1798  the  territory  now  included  in  the 
states  of  Alabama  and  Mississippi  was  or- 
ganized as  a  territory  called  Mississippi, 
which  was  cut  off  from  the  Gulf  coast  by 
Florida,  then  Spanish  territory,  extending  to 
the  French  possessions  in  Louisiana.  Dur- 
ing the  war  of  1812,  part  of  Florida  lying 
between  the  Perdido  and  Pearl  rivers  was 
occupied  by  United  States  troops  and  after- 
wards annexed  to  Mississippi  territory,  form- 
ing part  of  the  present  state  of  Alabama, 
which  was  occupied  principally  by  Creek  In- 
dians. The  country  becoming  rapidly  set- 
tled by  the  whites,  the  western  portion  was 
admitted  into  the  Union  as  the  state  of  Mis- 
sissippi, and,  by  act  of  Congress  of  March  3, 
1S17,  the  eastern  portion  was  organized  as 
the  territory  of  Alabama;  3  U.  S.  Stat  L. 
371. 

An  act  of  Congress  was  passed  March  2,  1819,  au- 
thorizing the  inhabitants  of  the  territory  of  Ala- 
bama to  form  for  themselves  a  constitution  and 
state  government.  In  pursuance  of  that  act,  the 
constitution  of  the  state  of  Alabama  was  adopted 
by  a  convention  which  met  at  Huntsville,  July  5, 
and  adjourned  August  2,  1819.  Amendment  prohib- 
iting sale  and  manufacture  of  intoxicating  liquors, 
adopted  1909. 

ALASKA.  Territory  acquired  by  the 
United  States  under  treaty  with  Russia 
dated  March  30,  ratified  May  28,  18G7.  15 
Stat.  L.  530.  By  this  treaty  the  inhabitants 
of  the  territory  were  admitted  to  the  enjoy- 
ment of  all  the  rights,  advantages  and  im- 
munities of  citizens  of  the  United  States. 
The  status  of  Alaska  as  an  incorporated  ter- 
ritory was  contemplated  by  its  provisions 
and  has  been  since  so  declared  by  the  courts ; 
Rassmussen  v.  U.  S.,  197  U.  S.  516,  25  Sup. 
Ct  514,  49  L.  Ed.  862. 

The  general  laws  of  the  state  of  Oregon 
were  declared  to  be  the  laws  of  the  terri- 
tory, so  far  as  applicable  and  not  in  con- 


flict with  the  laws  of  the  United  States. 
By  act  of  May  7,  1000,  a  delegate  to  congress 
was  provided.  By  an  order.  May  11,  1891, 
under  the  Act.  of  March'  .">,  1891,  Alaska  was 
assigned  to  the  ninth  judicial  circuit  See 
Territory. 

ALBA  FIRM  A.  White  rents;  rents  re- 
served payable  in  silver,  or  white  money. 

They  were  so  called  to  distinguish  them  from 
reditus  nitjri,  which  were  rents  reserved  payable  in 
work,   grain,  and  the  like.     Coke,  2d   Inst.  19. 

ALBINATUS  JUS.  The  droit  d'aubaine 
in  France  whereby  the  king  at  the  death  of 
an  alien  was  entitled  to  all  his  property, 
unless  he  had  a  peculiar  exemption.  Re- 
pealed in  1791. 

ALCALDE.  A  judicial  officer  in  Spain, 
and  in  those  countries  which  have  received 
the  body  of  their  laws  from  those  of  Spain. 
His  powers  and  duties  are  similar  to  those 
of  a  justice  of  the  peace. 

ALDERMAN.  Equivalent  to  senator  or 
senior.     Cowell. 

In  English  Law.  An  associate  to  the  chief 
civil  magistrate  of  a  corporate  town  or  city. 

The  word  was  formerly  of  very  extended  significa- 
tion. Spelman  enumerates  eleven  classes  of  alder- 
men. Their  duties  among  the  Saxons  embraced 
both  magisterial  and  executive  power,  but  would 
seem  to  have  been  rather  an  appellation  of  honor, 
originally,  than  a  distinguishing  mark  of  office. 
Spelman,    Gloss. 

Aldermannus  civitatus  burgi  seu  castellce  (alder- 
man of  a  city,  borough,  or  castle).  1  Bla.  Com. 
475,  n. 

Aldermannus  comitatus  (alderman  of  the  coun- 
ty), who  is  thought  by  Spelman  to  have  held  an  in- 
termediate place  between  an  earl  and  a  sheriff;  by 
others,  held  the  same  as  the  earl.     1  Bla.  Com.  116. 

Aldermannus  hundredi  seu  wapentachii  (alder- 
man of  a  hundred  or  wapentake).      Spelman. 

Aldermannus  regis  (alderman  of  the  king)  was  so 
called,  either  because  he  was  appointed  by  the  king, 
or  because  he  gave  the  judgment  of  the  king  in  the 
premises   allotted  to  him. 

Aldermannus  totius  Anglice  (alderman  of  all  Eng- 
land). An  officer  of  high  rank  whose  duties  cannot 
be   precisely  determined.     See  Spelman,  Gloss. 

The  aldermen  of  the  city  of  London  were  prob- 
ably originally  the  chiefs  of  guilds.  See  1  Spence, 
Eq.  Jur.  54,  56.  For  an  account  of  the  selection  and 
installation  of  aldermen  of  the  guild  merchant  of  a 
borough,  see  1   Poll.  &  Maitl.  648. 

In  American  Cities.  The  aldermen  are  gen- 
erally a  municipal  legislative  body ;  though 
in  many  cities  they  hold  separate  courts, 
and  have  magisterial  powers  to  a  considera- 
ble extent. 

Consult  1  Sharsw.  Bla.  Com.  116;  Reeve, 
Hist   Eng.  Law;   Spence,  Eq.  Jur. 

ALE-CONNER  (also  called  ale-taster). 
An  officer  appointed  by  the  court-leet,  sworn 
to  look  to  the  assize  and  goodness  of  ale  and 
beer  within  the  precincts  of  the  leet.  Kitch- 
in,  Courts  46;  Whishaw. 

An  officer  appointed  in  every  court-leet. 
and  sworn  to  look  to  the  assize  of  bread,  ale, 
or  beer  within  the  precincts  of  that  lordship. 
Cowell. 

This    officer    is    still    continued    in   name, 


ALE-CONNER 


171 


ALIAS 


though  the  duties  are  changed  or  given  up ; 
l  Crabb,  Real  Prop.  501. 

ALE  SILVER.  A  duty  anciently  paid  to 
rhe  Lord  Mayor  of  London  by  the  sellers  of 
ale. 

ALE  AT  OR  fLat.  a  lea,  dice.)  A  diceplay- 
er ;  a  gambler. 

"The  more  skilful  a  player  he  is,  the  wick- 
eder he  is."    Calvlnus,  Lex. 

ALEATORY     CONTRACT.      In     Civil     Law. 

A  mutual  agreement,  of  which  the  effects, 
with  respect  hoth  to  the  advantages  and 
losses,  whether  to  all  the  parties  or  to  some 
of  them,  depend  on  an  uncertain  event.  La. 
Civ.  Code,  art.  2982.  See  Moore  v.  Johnston, 
8  La.  Ann.  488:  May,   Ins.  §  5. 

The  term  includes  contracts,  such  as  in- 
surance, annuities,  and  the  like.  See  Gam- 
ing; Majbgin;  Option. 

An  aleatory  sale  is  one  the  completion  of 
which  depends  on  the  happening  of  an  un- 
certain  event. 

ALER  SANS  JOUR  (Fr.  aller  sans  jour, 
to  go  without  day).  A  phrase  formerly 
used  to  indicate  the  final  dismissal  of  a  case 
from  court.  The  defendant  was  then  at  lib- 
erty to  go,  without  any  day  appointed  for 
his  subsequent  appearance;  Kitchin,  Courts 
146;  Tonnes  de  la  Ley. 

ALFET.  The  vessel  in  which  hot  water 
was  put,  for  the  purpose  of  dipping  a  crimi- 
nal's arm  in  it  up  to  the  elbow  in  the  ordeal 
by  water.    Cowell.     See  Ordeal: 

ALIA    (Lat).     Other  things. 

ALIA  ENORMIA  (Lat.  other  wrongs).  A 
general  allegation,  at  the  end  of  a  declara- 
tion, of  wrongful  acts  committed  by  the  de- 
fendant to  the  damage  of  the  plaintiff.  In 
form  it  is,  "and  other  wrongs  then  and  there 
did  against  the  peace,"  etc.  Under  this  al- 
legation, damages  and  matters  which  natu- 
rally arise  from  the  act  complained  of  may 
be  given  in  evidence;  2  Greenl.  Ev.  §  678; 
including  battery  of  servants,  etc.,  in  a  dec- 
laration for  breaking  into  and  entering  a 
house;  2  Term  ICG;  Shafer  v.  Smith,  7  Ilarr. 
&  J.  (Md.)  GS ;  and  all  matters  in  general 
which  go  in  aggravation  of  damages  merely, 
but  would  not  of  themselves  be  ground  for 
an  action;  Bull.  N.  P.  89;  Ileminway  v.  Sax- 
ton,  3  Mass.  222;  Dimmett  v.  Esk  ridge,  6 
Munf.   (Va.)  308. 

But  matters  in  aggravation  may  be  stated 
specially;  Moore  v.  Fenwick,  Gilm.  (Va.) 
227;  and  matters  which  of  themselves  would 
constitute  a  ground  of  action  must  be  so 
stated:  1  Chit.  PI.  348;  Loker  v.  Damon,  17 
Pick.    (Mass.)    2S4.     See  Aggravation. 

ALIAS  (Lat.  alius,  another).  At  another 
time ;  otherwise. 

The  term  is  sometimes  used  to  indicate 
an  assumed  name.     See  Alias  Dictus. 

An  alias  writ  is  a  writ  issued  where  one 
of  the  same  kind  has  been  issued  before  in 


the  same  cause.     See  lioberts  v.  I  '7 

Conn.   14.". 

The   second   writ   runs,  in   such 
command  you  as  we  have 

.  i tin  word 
is    used    to  both    the    writ    and    the 

clause  in  which  it  or  its  corresponding 
lish  word  is  found.  It  is  used  of  all  E 
of  writs. 

No  waiver  can  make  an  alias  attachment 
writ  good  and  it  Is  unauthorized;  DennisOD 
v.  r.lumenthal.  ?,1  111.  App.  385;  an  alius  ex- 
ecution should  not  issue  on  return  of  the 
original  which  had  been  deli  g   prior 

to,  except  it  be  shown  that  it  had 
delivered    to   an   officer   during   its   life 
had   not  been  satisfied ;   People   v.    Brayton, 
37  111.  App.  319. 

ALIAS  0  ICTUS  (Lat  otherwise  called). 
A  description  of  the  defendant  by  adding  to 

his  real  name  that  by  which  be  is  known  in 
some  writing  on  which  be  is  to  be  charged, 
or  by  which  be  is  known.  Reid  v.  Lord.  4 
Johns.    (X.    Y.)    118;    Meredith    v.    Hinsdale. 

2  Caines  (N.  Y. )   3®;  Petrie  v.  Woodwprth, 

3  Caines  ( X.  Y.)  219.  From  long  usag 
word  alias  alone  is  now  considered  sufl  ■ 
Kennedy  v.  People,  39  X.  Y.  245.     See  Name. 

ALIBI  (Lat.  elsewhere).  Presence  in  an- 
other place  than  that  described. 

When  a  person,  charged  with  a  crime,  proves  ( se 
caclcm  die  fuisse  alibi)  that  he  was,  at  the  time  al- 
leged, in  a  different  place  from  that  in  which  it  was 
committed,  he  is  said  to  prove  an  alibi,  I 
which  is  to  lay  a  foundation  for  the  necessary  in- 
ference that  he  could  not  have  committed  it.  See 
Bracton  140. 

This  proof  is  usually  made  out  by  the  testimony 
of  witnesses,  but  it  is  presumed  it  might  be  made 
out  by  writings;  as  if  the  party  could  prove  by  a 
record,  properly  authenticated,  that  on  the  day  or 
at   the   time    in   question    he   was  in   another    place. 

It  has  been  said  that  this  defence  must  be 
subjected  to  a  most  rigid  scrutiny,  and  that 
it  must  be  established  by  a  preponderance 
of  proof;  Com.  v.  Webster.  5  Cush.  (W 
324,  52  Am.  Dec.  711;  Washington  Ben.  Soc. 
v.  Bacher,  20  Ta.  429;  Creed  v.  People,  81  111. 
505;  State  v.  Reed,  62  la.  40,  17  N.  W.  150. 
See  remarks  of  Shaw,  C.  J.,  in  Webster's 
Case,  and  2  Alison's  Cr.  L.  of  Scotl.  624; 
Bish.  Crim.  L.  1061.  In  many  states  the  de- 
fence is  established  if  the  evidence  raises  in 
the  minds  of  the  jury  a  reasonable  doubt 
as  to  the  guilt  of  the  defendant:  State  v. 
Howell.  100  Mo.  628,  14  S.  W.  I:  Adams  v. 
State,  28  Fla.  511,  10  South.  106;  Pi 
State.    94    Ala.    1  I.    1(1    South.    I  pie   v. 

Fong  Ah  Sing.  64  CaL  253,  28 
Landis  v.  state.  70  Ga.  651,  48  Am.  Hep.  588; 
Howard  v.  State.  50  Ind.  190;  People  v. 
Pearsall,  50  Mich.  233,  15  X.  W.  98;  and  if 
the  testimony  tends  to  prove  an  alibi,  failure 
to  instruct  thereon  is  error;  Fletcher  v. 
State.  85  Ga.  666,  11  S.  E.  872.  An  instruc- 
tion that  an  alibi  need  not  be  established  be- 
yond a  reasonable  doubt,  but  it  should  be  to 
the  satisfaction  of  the  jury,  is  correct;  Peo- 


ALIBI 


172 


ALIEN 


pie  v.  Stone,  117  N.  Y.  4S0,  23  N.  E.  13; 
Caldwell  v.  State,  28  Tex.  App.  5G6,  14  S.  W. 
122;  Garrity  v.  People,.  107  111.  162;  State  v. 
Jennings,  81  Mo.  1S5,  51  Am.  Rep.  236 ;  Ware 
v.  State,  67  Ga.  349.  It  is  peculiarly  liable 
to  be  supported  by  perjury  and  false  testi- 
mony of  all  sorts.  Tbere  must  be  satisfac- 
tory proof  that  the  prisoner  could  not  have 
been  at  the  place  where  the  crime  was  com- 
mitted, but  the  proof  need  not  be  higher 
than  is  required  as  to  other  facts ;  Johnson 
v.  State,  59  Ga.  142.  See  State  v.  Northrup, 
48  la.  583,  30  Am.  Rep.  408;  People  v.  Gam, 
69  Cal.  552,  11  Pac.  183. 

ALIEN  (Lat  alienus,  belonging  to  anoth- 
er; foreign).  A  foreigner;  one  of  foreign 
birth. 

In  England,  one  born  out  of  the  allegiance 
of  the  king. 

In  the  United  States  one  born  out  of  the 
jurisdiction  of  the  "United  States  and  who 
has  not  been  naturalized  under  their  consti- 
tution and  laws.     2  Kent  50. 

The  alien  minor  child  of  a  naturalized  cit- 
izen who  has  never  dwelt  in  the  United 
States  is  not  invested  with  citizenship  by 
the  provision  of  §  2172,  U.  S.  R.  S.  1901,  p. 
1334,  that  minor  children  of  naturalized  citi- 
zens shall  if  dwelling  in  the  U.  S.  be  con- 
sidered citizens  thereof;  Zartarian  v.  Bill- 
ings, 204  U.  S.  170,  27  Sup.  Ct.  182,  51  L.  Ed. 
428. 

Citizens  of  Porto  Rico  are  not  aliens ;  Gon- 
zales v.  Williams,  192  U.  S.  1,  24  Sup.  Ct. 
177,  48  L.  Ed.  317. 

As  to  right  to  sue,  see  Abatement. 

An  American  woman  who  marries  a  for- 
eigner takes  her  husband's  nationality,  but 
not  if  she  continues  to  reside  in  the  United 
States;  Wallenburg  v.  R.  Co.,  159  Fed.  217. 
If  she  resides  abroad  at  the  termination  of 
the  marriage  relation,  she  may  resume  her 
citizenship  by  registering  as  an  American 
citizen  with  a  consul  of  the  United  States 
or  by  returning  to  the  United  States;  Act 
of  March  2,  1907. 

A  treaty  with  Japan  securing  to  her  sub- 
jects full  liberty  to  enter,  travel  or  reside  in 
any  part  of  the  United  States  will  not  in- 
clude such  persons  as  are  likely  to  become  a 
public  charge,  or  those  forbidden  to  enter  by 
the  immigrant  acts;  The  Japanese  Immi- 
grant Case,  189  U.  S.  86,  23  Sup.  Ct.  611,  47 
L.  Ed.  721 ;  nor  will  any  treaty  give  to  a 
British  subject  any  different  measure  of  jus- 
tice from  our  own ;  Barrington  v.  Missouri, 
205  U.  S.  487,  27  Sup.  Ct.  582,  51  L.  Ed.  890. 

An  alien  cannot  in  general  acquire  title 
to  real  estate  by  descent,  or  by  other  mere 
operation  of  law;  7  Co.  25a;  Jackson  v. 
Lunn,  3  Johns.  Cas.  (N.  Y.)  109;  Hunt  v. 
Warnir-ke's  Heirs,  Hard.  (Ky.)  61;  Geofroy 
v.  Riggs,  133  U.  S.  205,  10  Sup.  Ct.  295,  33 
L.  Ed.  642 ;  and  if  he  purchase  land,  he  may 
be  divested  of  the  fee,  upon  an  inquest  of 
office  found;  but  until  this  is  done  he  may 


sell,  convey,  or  devise  the  lands  and  pass  a 
good  title  to  the  same;  Orr  v.  Hodgson,  4 
Wheat.  (U.  S.)  453,  4  L.  Ed.  613;  Fox  v. 
Southack,  12  Mass.  143;  Mooers  v.  White, 
6  Johns.  Ch.  (N.  Y.)  365;  Montgomery  v. 
Dorion,  7  N.  H.  475;  1  Washb.  R.  P.  49; 
Oregon  Mtg.  Co.  v.  Carstens,  16  Wash.  165, 

47  Pac.  421,  35  L.  R.  A.  841.  The  state 
alone  can  question  his  right  to  hold  land; 
Belden  v.  Wilkinson,  33  Misc.  659,  68  N.  Y. 
Supp.  205 ;  Madden  v.  State,  68  Kan.  658,  75 
Pac.  1023.  The  disabilities  of  aliens  in  re- 
spect to  holding  lands  are  removed  by  stat- 
ute in  many  of  the  states  of  the  United 
States  and  by  United  States  treaties;  Bahu- 
aud  v.  Bize,  105  Fed.  485,  and  cases  cited. 
The  California  Act  of  May  19,  1913,  permits 
that  aliens  not  eligible  to  citizenship  may 
hold  land  to  the  extent  provided  by  any  ex- 
isting treaty  between  the  United  States  and 
such  aliens'  nation  (and  also  may  hold  land 
for  agricultural  purposes  for  a  term  of  not 
over  three  years). 

Provisions  in  regard  to  the  transfer,  devise 
or  inheritance  of  property  by  aliens  are  fit- 
ting subjects  of  regulation  under  the  treaty- 
making  power  of  the  United  States,  and  a 
treaty  will  control  or  suspend  the  statutes 
of  the  individual  states  whenever  it  differs 
from  them  and,  for  that  reason,  if  the  sub- 
ject of  a  foreign  government  is  disqualified, 
under  the  laws  of  a  state,  from  taking, 
holding  or  transferring  real  property,  such 
disqualification  will  be  removed  if  a  treaty 
between  the  United  States  and  such  foreign 
government  confers  the  right  to  take,  hold, 
or  transfer  real  property ;  Wunderle  v.  Wun- 
derle,  144  111.  40,  33  N.  E.  195,  19  L.  R.  A. 
84.  So  by  virtue  of  treaties  existing  be- 
tween the  United  States  and  France  and 
Bavaria,  citizens  of  the  latter  countries  are 
exempt  from  the  payment  of  a  state  tax  im- 
posed on  foreign  heirs  and  legatees;  Succes- 
sion of  Dufour,  10  La.  Ann.  391 ;  Succession 
of  Crusius,  19  id.  369;  and  by  the  "most  fa- 
vored nation"  clause  of  the  treaty  with  Italy, 
a  subject  of  that  country  is  likewise  exempt 
from   the  same  tax ;    Succession  of  Rixner, 

48  La.  Ann.  552,  19  South.  597,  32  L.  R.  A. 
177. 

The  right  of  a  state,  in  the  absence  of  a 
treaty,  to  declare  an  alien  capable  of  inher- 
itance or  taking  property  and  holding  the 
same  within  its  borders,  is  not  precluded  by 
the  constitution  of  the  United  States;  Art 
I,  §  10,  declaring  that  no  state  shall  enter 
into  any  treaty,  alliance  or  confederation ; 
Blythe  v.  Hinckley,  180  U.  S.  333,  21  Sup. 
Ct.  390,  45  L.  Ed.  557. 

An  alien  woman  acquires  citizenship  by 
her  marriage  to  an  American,  though  she  be 
an  immigrant  about  to  be  deported ;  Hop- 
kins v.  Fachant,  130  Fed.  839,  65  C.  C.  A.  1. 

After  the  termination  of  the  marital  re- 
lation, a  woman  who  has  acquired  citizen- 
ship by  marriage  may  retain  it  by  continu- 


ALIEN 


173 


ALIEN 


lng  in  the  United  States.  She  may  renounce 
it  before  a  court  having  jurisdiction  to 
naturalize  aliens.  If  she  reside  abroad  she 
may  retain  her  citizenship  by  registering 
with  a  United  States  consul  within  the  year ; 
Act  of  March  2,  '07. 

The  right  to  exclude  or  to  expel  aliens  in 
war  or  in  peace  is  an  inherent  and  inaliena- 
ble right  of  every  independent  nation;  Fong 
Yue  Ting  v.  U.  S.,  149  U.  "S.  698,  13  Sup.  Ct. 
1016,  37  L.  Ed.  905;  so  in  England;  [1891] 
A.  C.  272.  Congress  may  exclude  aliens  alto- 
gether  and  prescribe  the  conditions  upon 
which  they  may  come  to  this  country;  U.  S. 
v.  Bitty,  208  U.  S.  393,  28  Sup.  Ct  396,  52 
L.  Ed.  543 ;  and  may  have  its  policy  in  that 
respect  enforced  exclusively  through  execu- 
tive officers  without  judicial  intervention; 
The  Chinese  Exclusion  Case,  130  U.  S.  581, 
9  Sup.  Ct.  623,  32  L.  Ed.  10G8;  Nishiinura 
Ekin  v.  U.  S.,  142  U.  S.  651,  12  Sup.  Ct.  336, 
35  L.  Ed.  1146;  Lem  Moon  Sing  v.  U.  S., 
158  U.  S.  538,  15  Sup.  Ct.  967,  39  L.  Ed.  1082; 
Fok  Ying  Yo  v.  U.  S.,  185  U.  S.  296,  22  Sup. 
Ct.  6S6,  46  L.  Ed.  917;  Kaoru  Yainataya  v. 
Fisher,  189  U.  S.  86,  23  Sup.  Ct.  611,  47  L. 
Ed  721. 

What  classes  are  excluded:  Alien  anar- 
chists; U.  S.  v.  Williams.  194  U.  S.  279, 
24  Sup.  Ct.  719,  48  L.  Ed.  979 ;  all  idiots,  in- 
sane persons,  paupers,  or  persons  likely  to 
become  a  public  charge,  persons  suffering 
from  a  loathsome  disease,  persons  who  have 
been  convicted  of  a  felony  or  other  infamous 
crime  or  misdemeanor  involving  moral  turpi- 
tude, poly ga mists,  and  also  any  person  whose 
ticket  or  passage  is  paid  for  with  the  money 
of  another,  or  who  is  assisted  by  others  to 
come,  unless  it  is  satisfactorily  shown  that 
such  person  does  not  belong  to  one  of  the 
foregoing  excluded  classes  or  to  the  class  of 
contract  laborers;  26  Stat.  L.  1084,  U.  S. 
Comp.  Stat.  1901,  p.  1294;  Kaoru  Yamataya 
v.  Fisher,  189  U.  S.  86,  23  Sup.  Ct.  611,  47 
L.  Ed.  721 ;  alien  women  for  the  purpose  of 
prostitution  or  for  any  other  immoral  pur- 
pose are  excluded;  U.  S.  v.  Bitty,  20S  U.  S. 
393,  28  Sup.  396,  52  L.  Ed.  543;  and  their 
importation  is  a  crime  against  the  United 
Stales;   Act  Feb.  20,  1907,   34  Stat.   L.  898. 

As  to  the  exclusion  of  Chinese  and  Japan- 
ese, see  those  titles. 

As  to  the  nature  of  an  alien's  relation  to 
the   government,   see   Allegiance. 

It  is  unlawful  for  any  alien  person  or  cor- 
poration to  acquire,  hold  or  own  real  estate 
or  any  interest  therein  in  any  of  the  terri- 
tories of  the  United  States,  or  in  the  Dis- 
trict of  Columbia,  except  such  as  may  be 
acquired  by  inheritance  or  in  good  faith  in 
the  ordinary  course  of  justice  in  the  collec- 
tion of  debts,  except  where  the  right  to  hold 
and  dispose  of  lands  in  the  United  States  is 
secured  by  existing  treaties  with  such  for- 
eign countries.  Corporations  of  which  more 
than  twenty  per  cent,  of  the  stock  is  held 
by   aliens  come  within  the  same  category ; 


24  U.  S.  Stat.  L.  470 ;    1  R.  S.  Suppl.  p.  556. 

Foreign  governments  and  their  i 
tives  may  own   real  estate  for  legatb 
residences   in   the   District  of   Columbia ;     1 
It  S.  Suppl.  582. 

An  alien  has  a  right  to  acquire  per 
estate,  make  and  enforce  contracts  in  rela- 
tion to  the  same ;  he  is  protected  from  in- 
juries and  wrongs  to  bis  person  and  prop- 
erty; he  may  sue  and  be  sued;  7  Co.  17; 
Dyer  2  b;  Judd  v.  Lawrence,  1  Cnsh.  (1 
531;  Slatter  v.  Carroll,  2  Sandf.  Ch.  (X.  Y.) 
582;  Taylor  v.  Carpenter,  2  Woodb.  &  M.  1, 
Fed.  Cas.  No.  13,785;  I>e  Laveaga  v.  Wil- 
liams, 5  Sawy.  573,  Fed.  Cas.  No.  3,759;  Air- 
hart  v.  Massieu,  98  U.  S.  491,  25  L.  Ed.  213 ; 
Carlisle  v.  U.  S.,  16  Wall.  (U.  S.)  147,  21 
L.  Ed.  426;  McNair  v.  Toler,  21  Minn.  175; 
Crashley  v.  Pub.  Co.,  179  N.  Y.  27,  71  N.  E. 
258,  1  Ann.  Cas.  196.  A  state  may  debar  an 
alien  from  holding  stock  in  its  corporations 
or  admit  him  to  that  privilege  on  such  terms 
as  it  may  prescribe ;  State  v.  Ins.  Co.,  70 
Conn.  590,  40  Atl.  465,  66  Am.  St.  Rep.  L38. 

He  may  be  an  executor  or  administrator 
unless  prohibited  by  statute ;  Cutler  v.  How- 
ard, 9  Wis.  309 ;  1  Schouler's  Ex'rs,  270.  537  ; 
Carthey  v.  Webb,  6  N.  C.  26S. 

Discrimination  in  favor  of  local  creditors 
is  not  unconstitutional  where  the  effect  of 
judgment  in  favor  of  an  alien  creditor  would 
be  to  remove  a  fund  to  a  foreign  country 
there  to  be  administered  in  favor  of  for- 
eign creditors;  The  Disconto  Gesellschaft  v. 
Umbreit,  208  U.  S.  570,  28  Sup.  Ct.  337,  52 
L.  Ed.  625.     See  21  H.  L.  R.  537. 

In  England  no  alien  can  own  a  British 
ship  or  any  share  of  one.  He  has  no  Legal 
remedy  in  respect  of  an  act  of  state.  He 
will  not  be  heard  in  an  English  court  of  law 
to  complain  of  the  acts  of  the  English  gov- 
ernment. He  has  the  protection  of  the  laws 
of  England  against  all  private  persons  who 
do  him  an  injury,  but  between  him  and  the 
servants  of  the  Crown,  the  laws  are  silent; 
18  L.  Q.  Rev.  47. 

See  Pollock,  Torts,  as  to  what  extent  a 
resident  alien  is  or  ought  to  be  protected 
against  acts  of  state;  See  Goveh.nmi.mai. 
Acts. 

An  alien  may  hold  lands  in  Mexico,  as  a 
native,  except  that  if  within  twenty  leagues 
of  the  Northern  frontier,  he  must  have  the 
consent  of  the  government  and  if  within  five 
leagues  of  the  coast  the  consent  of  Con- 
gress; Taylor,  Mex.  Code,  1902,  313.  The 
ordinary  case  of  a  sailor  deserting  while  on 
shore  leave  is  not  comprehended  by  the  pro 
visions  of  the  immigration  act  of  March  3, 
1903,  making  it  the  duty  of  any  officer  in 
charge  of  any  vessel  bringing  an  alien  to 
the  United  States  to  adopt  precautions  to 
prevent  the  landing  of  such  alien;  Taylor  v. 
U.  S.,  207  U.  S.  120,  28  Sup.  Ct  53,  52  L. 
Ed.  130. 

An  alien,  even  after  being  naturalized,  is 
ineligible   to   the   office  of  president   of   the 


ALIEN 


174 


alii:nation 


United  States,  and  in  some  states,  as  in  New 
fork,  to  that  of  governor;  he  cannot  he  a 
member  of  Congress  till  the  expiration  of 
seven  years  after  his  naturalization.  An 
alien  can  exercise  no  political  rights  what- 
ever; he  cannot,  therefore,  vote  at  any  po- 
litical election,  fill  any  office,  or  serve  as  a 
juror.  See  Bryee,  Am.  Com.;  Collins  v.  Ev- 
ans, 6  Johns.  (N.  Y.)  333.  The  disabilities  of 
aliens  may  he  removed  and  they  may  become 
citizens,  under  the  provisions  of  the  acts  of 
Congress. 

As  to  the  case  of  alien  enemies,  see  that 
title.  As  to  contracts  for  alien  labor,  see 
Labor. 

As  to  their  right  to  bring  actions  for  death 
by  wrongful  act,  see  Death.  See  Chinese; 
DEroKTATioN;  Immigration;  Japanese;  Cit- 
izen: Naturalization;  Treaty;  Expatria- 
tion: Parties. 

ALIEN  ENEMY.  One  who  owes  allegiance 
to  the  adverse  belligerent.     1  Kent  78. 

He  who  owes  a  temporary  but  not  a  per- 
manent allegiance  is  an  alien  enemy  in  re- 
spect to  acts  done  during  such  temporary 
allegiance  only;  and  when  his  allegiance 
terminates,  his  hostile  character  terminates 
also ;   1  B.  &  P.  163. 

Alien  enemies  are  said  to  have  no  rights, 
no  privileges,  unless  by  the  king's  special 
favor,  during  time  of  war;  1  Bla.  Com.  372; 
Bynkershoek  195;  8  Term  166.  But  the  ten- 
dency of  modern  law  is  to  give  them  pro- 
tection for  person  and  property  until  or- 
dered out  of  the  country.  If  resident  with- 
in the  country,  they  may  sue  and  be  sued ; 
2  Kent  63 ;  Clarke  v.  Morey,  10  Johns.  (N.  Y.) 
69;  Russel  v.  Skipwith,  6  Binn.  (Pa.)  241;  Zaeh- 
arie  v.  Godfrey,  50  111.  1S6,  99  Am.  Dec.  506 ; 
they  may  be  sued  as  nonresident  defendants ; 
McVeigh  v.  U.  S.,  11  Wall.  (U.  S.)  259,  20  L. 
Ed.  80;  Dorsey  v.  Kyle,  30  Md.  512,  96  Am. 
Dec.  617 ;  and  may  be  served  by  publication, 
even  though  they  had  no  actual  notice,  be- 
ing within  the  hostile  lines;  Dorsey  v. 
Thompson,  37  Md.  25.  Partnership  with  a 
foreigner  is  dissolved  by  the  same  event  that 
makes  him  an  alien  enemy;  Hanger  v.  Ab- 
bott, 6  Wall.  (U.  S.)  532,  18  L.  Ed.  939.  See 
War. 

ALIEN  AND  SEDITION  LAWS.  See  Se- 
dition. 

ALIENAGE.  The  condition  or  state  of  an 
alien. 

ALIENATE.  To  convey;  to  transfer.  Co. 
Litt.  118  h.  Alien  is  very  commonly  used  in 
the  same  sense;    1  Washb.  R.  P.  53. 

ALIENATION.  The  transfer  of  the  prop- 
erty and  possession  of  lands,  tenements,  or 
other  things,  from  one  person  to  another. 
Termes  de  la  Ley. 

It  is  particularly  applied  to  absolute  con- 
veyances of  real  property;  Conover  v.  Ins. 
Co.,  1  N.  Y.  290,  291.  See  Conveyance; 
Dr.  ed. 


By  matter  of  record  may  be:  Private  acts 
of  the  legislature;  grants,  patents  of  lands, 
lines,  common  recovery.  See  Conveyam  i:; 
Deed;  Grant;  Fine;  Common  Recovery; 
Devise;  Will. 

In  Medical  Jurisprudence.  A  generic  term 
denoting  the  different  kinds  of  aberration  of 
the  human  understanding.  1  Beck,  Med.  Jur. 
~>-)~j.     See  Insanity. 

ALIENATION      OF     AFFECTIONS.       The 

rank  and  condition  of  the  defendant  cannot 
be  considered  in  assessing  damages,  though 
his  occupation  and  perhaps  his  social  posi- 
tion may  be  shown ;  Bailey  v.  Bailey,  91  la. 
598,  63  N.  W.  311 ;  and  evidence  of  the  con- 
dition of  defendant  as  to  means  is  not  ad- 
missible. Such  evidence  must  be  confined  to 
general  reputation  and  not  extended  to  par^ 
ticulars;  Kniffen  v.  McConnell,  30  N.  Y.  285 ; 
Chellis  v.  Chapman,  125  N.  Y.  214,  26  N.  E. 
SOS,  11  L.  R.  A.  784 ;  2  Fost  &  F.  160.  In 
other  cases  it  is  said  that  "evidence  of  the 
defendant's  property  was  admissible  to  show 
the  extent  of  the  injury"  ;  Lawrence  v.  Cooke, 
56  Me.  187,  96  Am.  Dec.  443;  Bennett  v. 
Beam,  42  Mich.  346,  4  N.  W.  8,  36  Am.  Rep. 
442 ;  Allen  v.  Baker,  86  N.  C.  91,  41  Am.  Rep. 
444. 

See  Entice. 

ALIENATION  OFFICE.  An  office  in  Eng- 
land to  which  all  writs  of  covenants  and  en- 
tries were  carried  for  the  recovery  of  fines 
levied   thereon. 

ALIENEE.  One  to  whom  an  alienation  is 
made. 

ALIENI  GENERIS  (Lat).  Of  another 
kind. 

ALIENI  JURIS  (Lat).  Subject  to  the  au- 
thority of  another.  An  infant  who  is  under 
the  authority  of  his  father,  or  guardian,  and 
a  wife  under  the  power  of  her  husband,  are 
said  to  be  alieni  juris.    See  Sui  Juris. 

ALIENIGENA  (Lat).  One  of  foreign 
birth;    an  alien.     7  Coke  31. 

ALIENOR.  He  who  makes  a  grant  or 
alienation. 

ALIGNMENT.  The  act  of  laying  out  or 
adjusting  a  line.  The  state  of  being  so  laid 
out  or  adjusted.  The  ground  plan  of  a  rail- 
way or  other  road  or  work  as  distinguished 
from  its  profile  or  gradients.  Village  of 
Chester  v.  Leonard,  68  Conn.  495,  37  Atl. 
897. 

ALIMENT.     In    Scotch    Law.     To   support; 
to    provide     with     necessaries.       Paterson, 
Coinp.   §§  845,   850. 

Maintenance ;  support ;  an  allowance 
from  the  husband's  estate  for  the  support 
of  the  wife.    Paterson,  Comp.  §  S93. 

In  Civil  Law.  Food  and  other  things  nec- 
essary to  the  support  of  life ;  money  allowed 
for  the  purpose  of  procuring  these.  Dig.  50. 
16.  43. 


ALIMENT 


175 


ALIMONY 


In  Common  Law.  To  supply  with  neces- 
saries, rurcell  \.  rurcell,  3  Edw.  Ch.  (N.  Y.) 
194. 

ALIMENTA  (Lat.  aloe,  to  support). 
Thirds  necessary  to  sustain  life. 

Under  the  term  are  included  food,  clothing,  and  a 
house;  water  also,  it  is  said,  in  those  regions 
where  water  is  sold;    Calvinus,  Lex.;    Dig.  50.  16.  43. 

ALIMONY.  The  allowance  which  a  hus- 
band by  order  of  court  pays  to  his  wife,  liv- 
ing separate  from  him,  for  her  maintenance. 
2  Lish.  Marr.  &  D.  351;  Chase  v.  Chase,  55 
Me.  21;   Odom  v.  Odom,  3G  Ga.  286. 

It  is  also  commonly  used  as  equally  ap- 
plicable to  all  allowances,  whether  annual 
or  in  gross,  made  to  a  wife  upon  a  decree  of 
divorce.  Burrows  v.  1'urple.  L07  -Mass.  4.VJ. . 
Parsons  v.  Larsons,  9  N.  II.  309,  32  Am.  Dec. 
362 ;  Buckminster  v.  Buckminster,  38  Yt 
24S.  SS  Am.  Dec.  652;  lledrick  v.  Ilcdrick, 
28  Ind.  291. 

Alimony  pendente  lite  is  that  ordered  dur- 
ing the  pendency  of  a  suit  in  divorce. 

Permanent  alimony  is  that  ordered  for  the 
use  of  the  wife  after  the  termination  of  the 
suit  for  divorce  during  their  joint  lives. 

To  entitle  a  wife  to  permanent  alimony, 
the  following  conditions  must  be  complied 
with: 

First,  a  legal  and  valid  marriage  must  be 
proved ;  1  Rob.  EccL  484 ;  Pureed  v.  Pur- 
cell,  4  Hen.  &  M.  (Ya.)  507;  McGee  v.  McGee, 
10  Ga.  477;  5  Sess.  Cas.  N.  S.  Sc.  L288; 
Bowman  v.  Bowman,  24  111.  App.  165.  It 
will  not  be  allowed  where  the  marriage  is  de- 
nied ;  Hite  v.  Hite,  124  Cal.  389,  57  Pac.  227, 
45  L.  It.  A.  793,  71  Am.  St.  Rep.  S2 ;  McKen- 
na  v.  McKenna,  70  111.  App.  340;  Vreeland 
v.  Vreeland,  IS  N.  J.  Eq.  43;  Collins  v.  Col- 
lins. 71  N.  Y.  269;  but  see  Schonwald  v. 
Schonwald,  62  N.  C.  219.  But  it  has  been  held 
that  where  there  had  been  a  marriage  which 
was  void  because  the  woman  had  another 
husband,  alimony  would  be  allowed;  Cray 
v.  Cray,  32  N.  J.  Eq.  25.  So  where  there 
had  been  marriage  ceremony,  but  its  legality 
was  questioned;  Reifschneider  v.  Reif- 
schneider,  241  III.  92,  S9  N.  E.  255.  In  Brink- 
ley  v.  Brinkley,  50  N.  Y.  1S4,  10  Am.  Rep. 
460,  it  was  held  that  where  the  marriage  is 
denied,  the  court  will  pass  upon  the  ques- 
tion for  the  purpose  of  an  application  for 
alimony,  and  grant  it  if  there  is  a  fair  pre- 
sumption of  marriage. 

Second,  by  the  common  law  the  relation  of 
husband  and  wife  must  continue  to  subsist ; 
Cor  which  reason  no  alimony  could  be  award- 
ed upon  a  divorce  a  vinculo  matrimonii,  or 
a  sentence  of  nullity;  1  Lee,  Eccl.  621;  Fisch- 
li  v.  Fischli,  1  Blackf.  (Ind.)  360,  12  Am. 
Dec.  251 ;  Davol  v.  Davol,  13  Mass.  264 ; 
Jones  v.  Jones,  IS  Me.  30S,  36  Am.  Dec  72:: : 
Holmes  v.  Holmes,  4  Barb.  (N.  Y.)  295 ;  Crane 
v.  Meginnis,  1  Gill  &  J.  (Md.)  4(33,  19  Am. 
Dec.  237;  Richardson  v.  Wilson,  8  Yerg. 
(Tenn.)    67.     This   rule,   however,    has   been 


very    generally    changed    by    statute   In    this 
country;    2  Bish.  M.  &  I).  § 

Third,    the   wife   must    ' 

ed  and    board  of   her   husband    (i 
divorce     a    vinculo     matrimonii)     by    judi- 
cial decree;   voluntary  separation,  for  what- 
ev<  r  ''.-.use.  Is  insuffii  Lent    And.  as  a  | 
rule,  the  alimony   must   be  awarded   by   the 
same  decree  which  grants  the  separation,  or 
at    least  in   the  same  suit,  it   not   1 
orally   competent    to   maintain   a    SUbse 
and  independent  suit  for  that  purpose;   Law- 
son  v.  Shotwell,  27  Miss.  630;    Bankston  v. 
Bankston,  id.  692;    Lyon  v.   Lyon,  21   ■■ 
185;    Fischli  v.  Fischli,  1  Blackf.  (Ind.) 
12  Am.  Dec.  251;    Richardson  v.   Wilson,  8 
Yerg.  (Tenn.)  67.     The  right  to  alimony  need 
not  be  determined   in  the  suit   for  divorce,  if 
such  right  is  reserved  in  the  judgment  ;    Ga- 
lusha    v.   Galusha,    13S   N.   Y.   272,   33   N.    E. 
1062. 

Fourth,  the  wife  must  not  be  the  guilty 
party;  Palmer  v.  Palmer,  1  Paige.  Ch.  (N.  Y.) 
276;  Dailey  v.  Dailey,  Wright  (Ohio)  514; 
Pence  v.  Pence,  6  B.  Monr.  (Ky.)  496;  L 
v.  Lovctt,  11  Ala.  763;  Sheafe  v.  Sheafe,  24 
X.  II.  564;  Hickling  v.  Ettckling,  40  111.  App. 
73;  Spaulding  v.  Spaulding,  133  Ind.  122,  32 
N.  E.  224,  36  Am.  St  Rep.  534;  but  in  some 
states  there  are  statutes  in  terms  which  per- 
mit the  court,  in  its  discretion,  to  decree  ali- 
mony to  the  guilty  wife;  2  Bish.  M.  &  D. 
378;  [1892]  Prob.  Div.  1:  and  continued 
adultery  of  wife  after  divorce,  is  no  ground 
for  vacating  a  previous  order  allowing 
permanent  alimony;  Cole  v.  Cole,  •">•">  111.  App. 
544;  Brooks  v.  Brooks.  18  W.  N.  C.  1  Pa.)   11.".. 

It  is  said  to  be  usual  in  a  divorce  decree 
in  England  to  add  the  words  ilum  Kola  ct 
casta  (while  she  remains  unmarried  and 
chaste),  "no  doubt  for  the  reason  that  it 
would  seem  a  parody  of  justice  to  suggest 
that 'a  woman  should  lose  her  allowance  if 
she  marries  again,  but  should  not  lose  it  if 
she  lives  with  a  man  as  his  mistress.  When 
indeed  the  reputation  of  the  wife  is  spotless, 
these  words  may  be  omitted."   [1898]  P.   13a 

It  may  he  that  a  divorce  is  refused  and  yet 
alimony  allowed  to  the  wife,  but  not  if  the 
husband  is  willing  to  be  reconciled  on  prop- 
er terms  and  has  not  abandoned  her;  Lath- 
am v.  Latham.  30  Gratt.    (Va.)    ""7. 

In  California,  a  divorce  having  been  de- 
creed against  a  non-resident,  an  order  for 
alimony  and  for  custody  of  children  was  va- 
cated on  appeal:  .".0  Am.  Law  Lev.  GUI,  with 
elaborate  discussion  and  criticism  of  this 
ruling.  A  decree  for  it  cannot  be  made 
against  a  defendant  who  is  not  served  with 
process  for  appearance,  dees  not  appear,  or 
has  no  property  within  control  of  the  court: 
Lynde  v.  Lynde.  54  N.  J.  Eq.  473,  35  Atl.  641. 
Whether  it  can  be  had  after  a  final  decree 
in  the  divorce  case  which  is  silent  as  to  it,  ex- 
cept through  amendment  of  decree,  queer* 

Where  a  judgment  for  alimony  is  rendered 
in  a  court  of  one  state,  its  enforcement  in 


ALIMONY 


17G 


ALIMONY 


another,  according  to  the  laws  of  the  latter, 
is  not  a  deprivation  of  property  without  due 
process  of  law;  T.ynde  v.  Lynde,  181  U.  S. 
1S3,  21  Sup.  Ct.  555,  45  L.  Ed.  S10. 

Alimony  pendente  lite  is  granted  much 
more  freely  than  permanent  alimony,  it  be- 
ing very  much  a  matter  of  course  to  allow 
the  former,  unless  the  wife  has  sufficient 
separate  property,  upon  the  institution  of  a 
suit;  1  Hagg.  Eccl.  773;  1  Curt.  Eccl.  444; 
Logan  v.  Logan,  2  B.  Monr.  (Ky.)  142;  Col- 
lins v.  Collins,  2  Paige  Ch.  (N.  Y.)  9;  Rose 
v.  Rose,  11  Paige  Ch.  (N.  Y.)  166;  Harding 
v.  Harding,  40  111.  App.  202;  either  for  the 
purpose  of  obtaining  a  separation  from  bed 
and  board ;  Smith  v.  Smith,  1  Edw.  Ch.  (N. 
Y.)  255 ;  a  divorce  a  vinculo  matrimonii; 
Ryan  v.  Ryan,  0  Mo.  539 ;  Jones  v.  Jones,  18 
Me.  SOS,  36  Am.  Dec.  723 ;  Hewitt  v.  Hewitt, 
1  Bland  Ch.  (Md.)  101 ;  or  a  sentence  of  nul- 
lity, and  whether  the  wife  is  plaintiff  or  de- 
fendant. The  reason  is  that  it  is  improper 
for  the  parties  to  live  in  matrimonial  co- 
habitation during  the  pendency  of  such  a 
suit,  whatever  may  be  its  final  result.  She 
need  only  show  probable  ground  for  divorce 
to  entitle  her  to  alimony ;  Wooley  v.  Wooley, 
24  111.  App.  431.  Upon  the  same  principle, 
the  husband  who  has  all  the  money,  while 
the  wife  has  none,  is  bound  to  furnish  her, 
whether  plaintiff  or  defendant,  with  the 
means  to  defray  her  expenses  in  the  suit; 
Jones  v.  Jones,  2  Barb.  Ch.  (N.  Y.)  146 ;  Story 
v.  Story,  Walk.  Ch.  (Mich.)  421;  Daiger  v. 
Daiger,  2  Md.  Ch.  Dec.  335 ;  Tayman  v.  Tay- 
man,  2  Md.  Ch.  Dec.  393.  See  Taylor  v.  Tay- 
lor, 46  N.  C.  528.  This  alimony  ceases  as 
soon  as  the  fault  of  the  wife  is  finally  deter- 
mined; Dawson  v.  Dawson,  37  Mo.  App.  207. 

It  has  been  held  that  a  court  of  chancery 
has  jurisdiction  to  grant  alimony  to  a  wife 
when  the  conduct  of  the  husband  renders  it 
unsafe  for  her  to  live  with  him  or  he  turns 
her  out  of  doors ;  Almond  v.  Almond,  4  Rand. 
(Va.)  662,  15  Am.  Dec.  781;  but  there  is  a 
conflict  of  decisions  as  to  whether,  without 
a  statute,  an  independent  suit  for  alimony 
can  be  sustained ;  see  12  Am.  Dec.  257,  note, 
where  the  cases  supporting  both  views  are 
collected.  Is  not  a  matter  of  independent 
claim  or  right,  but  is  incidental  to  a  suit 
for  divorce  or  other  relief  between  husband 
and  wife ;  Lynde  v.  Lynde,  54  N.  J.  Eq.  473, 
35  Atl.  641. 

Alimony  is  not  a  sum  of  money  nor  a  spe- 
cific proportion  of  the  husband's  estate  giv- 
en absolutely  to  the  wife,  but  it  is  a  con- 
tinuous allotment  of  sums  payable  at  regu- 
lar intervals,  for  her  support  from  year  to 
year ;  Wallingsford  v.  Wallingsford,  6  Harr. 
&  J.  (Md.)  4S5;  Parsons  v.  Parsons,  9  N.  H. 
309,  32  Am.  Dec.  362 ;  Clark  v.  Clark,  6  W.  & 
S.  (Pa.)  85;  Miller  v.  Miller,  75  N.  C.  70; 
Phelan  v.  Phelan,  12  Fla.  449 ;  Crain  v.  Ca- 
vana,  62  Barb.  (N.  Y.)  109;  but  in  some 
states  statutory  allowances  of  a  gross  sum 
have  been  given  to  the  wife  under  the  name 


of  alimony ;  see  Parsons  v.  Parsons,  9  N.  H. 
309,  32  Am.  Dec.  362 ;  Lyon  v.  Lyon,  21  Conn.  • 
1S5;  Herron  v.  Herron,  47  Ohio  St.  544,  25 
N.  E.  420,  9  L.  R.  A.  667,  21  Am.  St.  Rep.  854 ; 
Burrows  v.  Purple,  107  Mass.  428;  McClung 
v.  McClung,  40  Mich.  493 ;  Ross  v.  Ross,  78 
111.  402;  Williams  v.  Williams,  36  Wis.  362; 
Miller  v.  Clark,  23  Ind.  370;  Blankenship  v. 
Blankenship,  19  Kan.  159 ;  Ex  parte  Spencer, 
83  Cal.  460,  23  Pac.  395,  17  Am.  St.  Rep.  266. 
This  would  be  enforced  by  the  courts ;  Wil- 
son v.  Hinman,  182  N.  Y.  40S,  75  N.  E.  236,  2 
L.  R.  A.  (N.  S.)  232,  108  Am.  St.  Rep.  S20, 
citing  to  the  same  effect  Storey  v.  Storey, 
125  111.  608,  IS  N.  E.  329,  1  L.  R.  A.  320,  8 
Am.  St.  Rep.  417;  followed  in  Whitney  v. 
Warehouse  Co.,  183  Fed.  .678,  106  C.  C.  A.  28 ; 
if  in  gross  it  should  not  ordinarily  exceed 
one-half  the  husband's  estate ;  McCartin  v. 
McCartin,  37  Mo.  App.  471.  It  must  secure  to 
her  as  wife  a  maintenance  separate  from 
her  husband ;  an  absolute  title  in  specific 
property,  or  a  sale  of  a  part  of  the  husband's 
estate  for  her  use,  cannot  be  decreed  or  con- 
firmed to  her  as  alimony ;  3  Hagg.  Eccl.  322  ; 
Maguire  v.  Maguire,  7  Dana  (Ky.)  1S1 ;  Wal- 
lingsford v.  Wallingsford,  6  Harr.  &  J.  (Md.) 
4S5;  Purcell  v.  Purcell,  4  Hen.  &  M.  (Va.) 
507 ;  Rogers  v.  Vines,  28  N.  C.  293.  Nor  is 
alimony  regarded,  in  any  general  sense,  as 
the  separate  property  of  the  wife.  Hence 
she  can  neither  alienate  nor  charge  it ;  Ro- 
maine  v.  Chauncey,  60  Hun  477,  15  N.  Y. 
Supp.  198;  if  she  suffers  it  to  remain  in 
arrear  for  more  than  one  year,  it  has  been 
held  that  she  cannot  generally  recover  such 
arrears  ;  3  Hagg.  Eccl.  322  ;  if  she  saves  any- 
thing from  her  annual  allowance,  upon  her 
death  it  will  go  to  her  husband;  Clark  v. 
Clark,  6  W.  &  S.  (Pa.)  85 ;  Sterling  v.  Ster- 
ling, 12  Ga.  201 ;  if  there  are  any  arrears  at 
the  time  of  her  death,  they  cannot  be  recov- 
ered by  her  executors;  8  Sim.  321;  S  Term 
545;  Clark  v.. Clark,  6  W.  &  S.  (Pa.)  S5 ;  as 
the  husband  is  only  bound  to  support  his 
wife  during  his  own  life,  her  right  to  alimony 
ceases  with  his  death;  Smith  v.  Smith,  1 
Root  (Conn.)  349 ;  Sloan  v.  Cox,  4  Hay w. 
(Tenn.)  75 ;  Jamison  v.  Jamison,  4  Md.  Ch. 
Dec.  2S9;  Wilson  v.  Hinman,  182  N.  Y.  408, 
75  N.  E.  236,  2  L.  R.  A.  (N.  S.)  232,  108  Am. 
St.  Rep.  820 ;  Wagoner  v.  Wagoner,  132  Mich. 
343,  93  N.  W.  889;  Lockwood  v.  Krum,  34 
Ohio  St.  1;  Whitney  v.  Elevator  &  Ware- 
house Co.,  183  Fed.  67S,  106  C.  C.  A.  2S ;  Mar- 
tin v.  Martin,  33  W.  Va.  695,  11  S.  E.  12; 
Storey  v.  Storey,  23  111.  App.  558;  Stahl  v. 
Stahl,  114  111.  375,  2  N.  E.  160;  Casteel  v. 
Casteel,  38  Ark.  477;  and  see  Miller  v.  Mil- 
ler, 64  Me.  484;  In  re  Lawton,  12  R.  I.  210; 
and  it  ceases  upon  reconciliation  and  co- 
habitation. The  cases  upon  the  effect  of  the 
husband's  death  upon  a  decree  for  alimony 
involve  the  question  whether  alimony  is  to 
be  considered  merely  as  support  to  which 
the  wife  is  entitled  by  virtue  of  the  marital 
relation,  or  as  her  interest  in  the  joint  prop- 


ALIMONY 


177 


ALIMONY 


erty.  They  are  collected  in  a  note  in  2  L.  R. 
A  (N.  S.)  232,  where  it  is  said  that  they  can- 
not be  satisfactorily  harmonized  on  either 
theory. 

Its  amount  is-  liable  at  any  time  to  be  in- 
creased or  diminished  at  the  discretion  of 
the  court;  8  Sim.  315;  Clark  v.  Clark,  6  W. 
&  S.  (Pa.)  85;  and  the  court  may  insert  a 
provision  in  the  decree  allowing  any  inter- 
ested party  thereafter  to  apply,  on  account 
of  changed  conditions,  for  a  modification  of 
the  amount  allowed;  Stahl  v.  Stahl,  59  Hun 
621,  12  N.  Y.  Supp.  854.  If,  however,  the 
right  is  not  reserved  in  the  decree  or  given 
by  statute,  the  amount  cannot  subsequently 
be  varied  in  the  case  of  absolute  divorce; 
Howell  v.  Howell,  104  Cal.  45,  37  Pac.  770, 
43  Am.  St.  Rep.  70;  Walker  v.  Walker,  155 
N.  Y.  77,  49  N.  E.  663;  otherwise  under  a 
decree  for  separation ;  Taylor  v.  Taylor,  93 
N.  C.  418,  53  Am.  Rep.  4G0.  And  where  a 
statute  authorizes  the  amount  decreed  for 
alimony  to  be  changed,  it  cannot  operate 
retrospectively,  as  thereby  it  would  deprive 
the  person  of  property  without  due  process 
of  law ;  Livingston  v.  Livingston,  173  N.  Y. 
377,  66  N.  E.  123,  61  L.  R.  A.  S00,  93  Am. 
St.  Rep.  600. 

Equity  has  power  to  modify  provisions  as 
to  alimony  and  to  retain  jurisdiction  over 
such  decrees.  Where  an  agreement  between 
the  parties  provides  for  something  more  than 
alimony  (as  where  it  binds  the  husband  to 
pay  the  wife  a  certain  sum  until  her  death, 
irrespective  of  whether  she  survives  him  or 
not,  and  transfers  certain  property  to  her 
absolutely  and  to  trustees  to  pay  her  an  al- 
lowance during  her  life  and  such  agreement 
is  embodied  in  the  divorce  decree),  equity 
should  not  afterwards  destroy  the  agreement 
although  the  wife  marries  again;  but  three 
judges  dissented  on  the  ground  that  the  in- 
sertion of  such  an  agreement  in  the  decree 
was  improper  and  that  the  decree  should  be 
set  aside,  the  wife  retaining  her  rights  at 
law  for  the  breach  of  the  agreement ;  Emer- 
son v.  Emerson,   120  Md.   5S4,   87  Atl.   1033. 

The  preceding  observations  respecting  the 
nature  and  incidents  of  alimony  should  be 
received  with  some  caution  in  this  country, 
where  the  subject  is  so  largely  regulated  by 
statute;  Burr  v.  Burr,  10  Paige,  Ch.  (N.  Y. ) 
20;  id.,  7  Hill  (N.  Y.)  207.  It  is  said  that 
alimony  cannot  be  regarded  as  a  debt  owing 
from  a  husband  to  wife;  Barclay  v.  Barclay, 
1S4  111.  375,  56  N.  E.  030,  51  L.  R.  A.  351  : 
but  that  it  is  rather  to  be  considered  as  a 
penalty  imposed  for  the  failure  to  perform 
a  duty ;  Wetmore  v.  Markoe,  196  U.  S.  74, 
25  Sup.  Ct.  172,  49  L.  Ed.  390,  2  Ann.  Cas. 
2G5;  Romaine  v.  Chauncey,  129  N.  Y.  560, 
29  N.  E.  826,  14  L.  R.  A.  712,  26  Am.  St. 
Rep.  544.  Nor  is  it  a  debt  within  the  mean- 
ing of  the  constitutional  inhibition  against 
imprisonment  for  debt ;  State  v.  Cook,  60 
Ohio  St.  566,  64  N.  E.  507,  58  L.  R.  A.  625. 
Bouv.— 12 


And  a  discharge  in  bankruptcy  does  not  bar 

the  collection  of  arrears  of  alimony  and  the 

allowance  for  the  support  of  minor  children ; 

Dunbar   v.    Dunbar,   190  U.    S.   340,    - 

Ct.  7.",7,  47  L.  Ed.  10S4 ;  Wetmore  v.  Markoe, 

196  U.  S.  OS,  25  Sup.  ct.  171',  49  I 

2  Ann.  Cas.  2<;r, ;  ]>een  v.  Bloomer,  191   111. 

416,  61   N.  E.  131;  and  see  Beach  v.  Beach, 

29   Hun    (N.    Y.)    181  ;    contra,    Arlington    v. 

Arrington,  131  N.  C.   143,  42  S.   E.  554,  !>2 

Am.  st.  Rep.  7oo. 

The  amount  to  be  awarded  depends  upon 
a  great  variety  of  considerations  and  is  gov- 
erned by  no  fixed  rules;  Rieketts  v.  Ricketts, 
4  Gill  (Md.)  105;  Burr  v.  Burr,  7  Hill  (X. 
Y.)  207;  Richmond  v.  Richmond,  2  N.  J.  Bq. 
90;  McGee  v.  McGee,  10  Ga.  477;  Muir  v. 
Muir,  133  Ky.  125,  !»l'  S.  W.  314,  28  Ky.  L. 
Rep.  1355,  4  L.  R.  A.  (N.  S.)  909.  The  abili- 
ty of  the  husband,  however,  is  a  circum- 
stance of  more  importance  than  the  necessi- 
ty of  the  wife,  especially  as  regards  perma- 
nent alimony  ;  and  in  estimating  his  ability 
his  entire  income  will  be  taken  into  consid- 
eration, whether  it  is  derived  from  his  prop- 
erty or  his  personal  exertions;  3  Curt.  Eccl. 
3,  41  ;  McCrocklin  v.  McCrocklin,  2  B.  Monr. 
( Ky. »  370 ;  Bursler  v.  Bursler,  5  Pick. 
(.Mass.)  427;  Battey  v.  Battcy,  1  R.  I.  212; 
Small  v.  Small.  28  Neb.  843,  45  X.  W.  248; 
McGrady  v.  McGrady,  4S  Mo.  App.  008. 

Future  expectations  may  be  taken  into 
consideration;  Cralle  v.  Cralle,  S4  Ya.  198, 
6  S.  E.  12;  Horning  v.  Homing,  107  Mich. 
587,  65  X.  W.  555;  Muir  v.  Muir.  133  Ky.  125, 
92  S.  W.  314,  4  L.  R.  A.  (N.  S.)  909  an.'. 
note.  But  if  the  wife  has  separate  property : 
2  Phill.  40;  or  derives  income  from  her  per- 
sonal exertions,  this  will  also  be  taken  into 
account.  If  she  has  sufficient  means  to  sup- 
port herself  in  the  rank  of  life  in  which  she 
moved,  she  is  entitled  to  no  alimony:  sev- 
ens v.  Stevens,  49  Mich.  504,  13  X.  W.  835; 
Miller  v.  Miller,  75  X.  C.  70 ;  2  Hagg.  Consis. 
203.  The  method  of  computation  is.  to  add 
the  wife's  annual  income  to  her  husband's ; 
consider  what,  under  all  the  circumstances, 
should  be  allowed  her  out  of  the  aggr 
then  from  •  the  sum  so  determined  deduct 
her  separate  income,  and  the  remainder  will 
be  the  annual  allowance  to  be  made  bur. 
There  are  various  other  circumstances,  how- 
ever, beside  the  husband's  ability,  to  be  tak- 
en into  consideration  :  as.  whether  the  bulk 
of  the  property  came  from  the  wife,  or  be- 
longed originally  to  the  husband;  Fishli  v. 
Fishli,  2  Litt  (Ky.)  337;  Bobbins  v.  Robbins, 
101  111.  416;  or  was  accumulated  by  the  joint 
exertions  of  both,  subsequent  to  the  mar- 
riage; Lovett  v.  Lovctt,  11  Ala.  70:;;  Jeans 
v.  Jeans,  2  Harr.  (Del.)  142;  whether  there 
are  children  to  be  supported  and  educated, 
and  upon  whom  their  support  and  education 
devolves;  Amos  v.  Amos,  4  X.  J.  Eq.  171; 
Fishli  v.  Fishli,  2  Litt.  (Ky.)  337;  McGee  v. 
McGee,  10  Ga.  477;  Emerson  v.  Emerson,  OS 


ALIMONY 


178 


ALIMONY 


Ilun  (N.  Y.)  37,  22  N.  Y.  Supp.  684;  Park- 
hurst  v.  Race,  100  111.  570;  Call  v.  Call,  65 
Me.  407;  Halleman  v.  Halleman,  65  Ga.  476; 

the  nature  and  extent  of  the  husband's  de- 
lictum ;  3  Hagg.  EccL  657;  Turrel  v.  Turrel, 
2  Johns.  Ch.  (N.  Y.)  301  ;  Williams  v.  Wil- 
liams. 4  Dec.  Eq.  (S.  C.)  183;  Sheafe  v. 
Sheafe,  24  N.  II.  564;  the  demeanor  and  con- 
duct of  the  wife  towards  the  husband  who 
desires  cohabitation;  Burr  v.  Burr,  7  Hill 
(N.  Y.)  207:  Dejarnet  v.  Dejarnet,  5  Dana 
(Ky.)  400;  Stewartson  v.  Stewartson,  15  111. 
145;  Jones  v.  Jones,  05  Ala.  443,  11  South. 
11,  18  L.  R.  A.  95 ;  the  condition  in  life,  place 
of  residence,  health,  and  employment  of  the 
husband,  as  demanding  a  larger  or  smaller 
sum  for  his  own  support;  1  Hagg.  Eccl.  526, 
532 ;  the  condition  in  life,  circumstances, 
health,  place  of  residence,  and  consequent 
necessary  expenditures  of  the  wife;  Bursler 
v.  Bursler,  5  Pick.  (Mass.)  427;  Ricketts  v. 
Ricketts,  4  Gill  (Md.)  105;  Lovett  v.  Lovett, 
11  Ala.  7G3;  the  age  of  the  parties;  Miller 
v.  Miller,  6  Johns.  Ch.  (N.  Y.)  91;  Ricketts 
v.  Ricketts,  4  Gill  (Md.)  105;  Schlosser  v. 
Sehlosser,  29  Ind.  488;  the  ability  of  the 
husband  to  work ;  Canine  v.  Canine,  16  S. 
W.  367,  13  Ky.  L.  Rep.  124 ;  Snedager  v.  Kin- 
caid,  GO  S.  W.  522,  22  Ky.  L.  Rep.  1347; 
Furth  v.  Furth  (N.  J.)  39  Atl.  12S;  and 
whatever  other  circumstances  may  address 
themselves  to  a  sound  judicial  discretion. 
•  So  far  as  any  general  rule  can  be  deduced 
from  the  decisions  and  practice  of  the  courts, 
the  proportion  of  the  joint  income  to  be 
awarded  for  permanent  alimony  is  said  to 
range  from  one-half,  where  the  property 
came  from  the  wife  (2  Phill.  235),  to  one- 
third,  which  is  the  usual  amount ;  29  L.  J. 
Mat.  Cas.  150;  Ricketts  v.  Ricketts,  4  Gill 
(Md.)  105:  Forrest  v.  Forrest,  8  Bosw.  (N. 
Y.)  640;  Musselman  v.  Musselman,  44  Ind. 
106;  Turner  v.  Turner,  44  Ala.  437;  or 
even  less ;  Draper  v.  Draper,  68  111.  17 ; 
Garner  v.  Garner,  38  Ind.  139.  In  case 
of  alimony  pendente  lite,  it  is  not  usual  to 
allow  more  than  about  one-fifth,  after  de- 
ducting the  wife's  separate  income ;  2  Bish. 
Mar.  Div.  &  Sep.  §  945 ;  and  generally  a  less 
proportion  will  be  allowed  out  of  a  large  es- 
tate than  a  small  one;  for,  though  no  such 
rule  exists  in  respect  to  permanent  alimony, 
there  may  be  good  reasons  for  giving  less 
where  the  question  is  on  alimony  during  the 
suit;  when  the  wife  sbould  live  in  seclusion, 
and  needs  only  a  comfortable  subsistence ; 
2  Phill.  Eccl.  40.  See  Llamosas  v.  Llamosas, 
4  Thomp.  &  C.  (N.  Y.)  574;  Briggs  v.  Briggs, 
36  la.  383;  Harrell  v.  Harrell,  39  Ind.  185; 
Williams  v.  Williams,  29  Wis.  517. 

Courts  will  take  judicial  notice  that'  it  is 
not  infrequent  in  divorce  proceedings  for 
parties  to  agree  on  details  of  alimony; 
Whitney  v.  Warehouse  Co.,  183  Fed.  678,  106 
C.  C.  A.  28. 

An  action  upon  a  decree  for  alimony  may 


be  maintained  in  a  court  of  another  state 
where  the  amount  is  fixed  and  presently  due 
and  enforceable,  but  not  when  payable  in 
future  instalments ;  Hunt  v.  Monroe,  32 
Utah,  428,  91  Pac.  269,  11  L.  R.  A.  (N.  S.) 
249,  where  the  cases  are  critically  reviewed ; 
Page  v.  Page,  ISO  Mass.  85,  75  N.  E.  92,  4 
Ann.  Cas.  296 ;  contra,  where  there  is  power 
to  change  the  decree  for  payments;  Mayer 
v.  Mayer,  154  Mich.  386,  117  N.  W.  890,  19 
L.  R.  A.  (N.  S.)  245,  129  Am.  St.  Rep.  477. 
Generally  speaking,  when  a  decree  is  ren- 
dered for  alimony  payable  in  instalments, 
the  right  to  such  instalments  becomes  abso- 
lute and  vested  upon  becoming  due  and  is 
protected  by  the  full  faith  and  credit  clause 
of  the  United  States  constitution,  provided, 
that  no  modification  of  the  decree  has  been 
made  prior  to  the  maturity  of  the  instal- 
ments. This  general  rule  does  not  obtain 
where,  by  the  law  of  the  state  in  which  such 
judgment  is  rendered,  the  right  to  such  fu- 
ture alimony  is  discretionary  with  the  court 
which  made  the  decree,  to  such  an  extent 
that  no  absolute  or  vested  right  attaches  to 
receive  the  instalments  ordered  to  be  paid ; 
even  although  no  application  to  annul  or 
modify  the  decree  in  respect  to  alimony  had 
been  made  prior  to  the  instalments  becoming 
due;  Sistare  v.  Sistare,  218  U.  S.  1,  30  Sup. 
Ct.  682,  54  L.  Ed.  905,  28  L.  R.  A.  (N.  S.) 
1068,  20  Ann.  Cas.  1061. 

Though  an  action  on  a  decree  for  alimony 
rendered  in  one  state  may  be  maintained  in 
another  state  if  the  amount  payable  is  fixed 
and  presently  due,  yet  a  decree  for  alimony 
becoming  due  in  the  future  and  payable  in 
instalments  is  not  a  final  decree  enforceable 
in  another  state,  within  the  full  faith  and 
credit  clause,  until  the  court  which  rendered 
it  fixes  the  specific  amount  due ;  Hunt  v. 
Monroe,  32  Utah,  428,  91  Pac.  269,  11  L.  R. 
A.  (N.  S.)  249;  Israel  v.  Israel,  148  Fed. 
576,  79  C.  C.  A.  32,  9  L.  R.  A.  (N.  S.)  1168, 
8  Ann.  Cas.  697. 

Although  judgments  are,  by  statute,  liens 
on  the  defendant's  real  estate,  a  decree  for 
alimony  payable  by  instalments  does  not 
create  a  lien  unless  the  record  affirmatively 
shows  that  the  court  so  intended ;  Scott  v. 
Scott,  80  Kan.  489,  103  Pac.  1005,  25  L.  R.  A, 
(N.  S.)  132,  133  Am.  St.  Rep.  217,  18  Ann. 
Cas.  564,  and  note.  It  is  held  that  a  decree 
for  alimony  in  gross  operates  as  a  lien  on  the 
husband's  lands;  Holmes  v.  Holmes,  29  N. 
J.  Eq.  9 ;  Coffman  v.  Finney,  65  Ohio  St.  61, 
61  N.  E.  155,  55  L.  R.  A.  794 ;  so  of  a  month- 
ly allowance;  Raymond  v.  Blancgrass,  36 
Mont.  449,  93  Pac.  648,  15  L.  R.  A.  (N.  S.) 
976 ;  but  it  is  held  that  in  the  absence  of  a 
statute  there  is  no  lien ;  Kerr  v.  Kerr,  216 
Pa.  641,  66  Atl.  107,  9  Ann.  Cas.  89 ;  Swansen 
v.  Swansen,  12  Neb.  210,  10  N.  W.  713; 
Kurtz  v.  Kurtz,  38  Ark.  119 ;  In  re  Lawton, 
12  R.  I.  210;  Campbell  v.  Trosper,  108  Ky. 
602,  57  S.  W.  245.     A  New  York  decree  di- 


ALIMONY 


179 


ALLEGATA  ET  PRi  »BATA 


recti  ng  the  husband  to  mortgage  his  New 
Jersey  lands  to  secure  alimony  will  not  be 
enforced  in  New  Jersey;  Bollock  v.  Bullock, 
52  N.  J.  Eq.  561,  30  Atl.  670,  27  L.  R.  A.  213, 
46  Am.  St.  Rep.  528. 

Alimony,  suit  money  and  counsel  fees  can- 
not be  allowed  to  the  husband;  State  v.  Tera- 
pleton,  18  N.  D.  525,  123  X.  W.  283,  25  L.  R. 
A.  (X.  S.)  '_'::4:  Hoagland  v.  Hoagland,  19 
Utah  103,  57  Pac.  20.  Some  allowance  was 
made  in  Casey  v.  Casey,  116  la.  655,  88  X. 
W.  '•••"•T,  and  ."".  Quebec  Pr.  Rep.  137,  under 
peculiar  circumstances. 

I'.ir  an  outside  agreement  for  support  of 
wife,  not  made  pail  » >  1'  a  decree,  see  Dunbar 
v.  Dunbar,  190  U.  S.  340,  23  Sup.  Ct.  757,  47 
L.  Ed.  1084. 

See  notes  in  34  L.  R.  A.  110,  and  25  L.  R. 
A.   (N.  S.)   234. 

ALIO  INTUITU.  Under  a  different  as- 
pect; with  respect  to  another  case  or  condi- 
tion.    6  M.  &  S.  231.     See  Diverso  Intuitu. 

ALITER  (Lat.).  Otherwise  ;  as  otherwise 
held  or  decided. 

ALIUNDE  (Lat.).  From  another  place. 
Evidence  aliunde  (i.  e.  from  without  the 
will)  may  be  received  to  explain  an  ambigui- 
ty in  a  will.  1  Greenl.  Ev.  §  291.  The  word 
is  also  used  in  the  same  sense  with  respect 
to  the  admission  of  evidence  to  modify  or 
explain  other  documents,  generally  treated 
as  conclusive. 

ALL.  Completely,  wholly,  the  whole 
amount,   quantity  or  number. 

It  is  frequently  used  in  the  sense  of  "each" 
or  "every  one  of ;"  Sherburne  v.  Sischo,  143 
Mass.  442,  9  N.  E.  797 ;  Towle  v.  Delano.  144 
Mass.  100,  10  N.  E.  769;  54  L.  J.  Q.  B.  539; 
and  is  a  general  rather  than  a  universal 
term,  to  be  understood  in  one  sense  or  the 
other  according  to  the  demands  of  sound  rea- 
son ;  Kieffer  v.  Ehler,  18  Pa.  391 ;  9  Ves.  Jr. 
137.     As  to  its  use  in  a  will,  see  Devise. 

ALL  AND  SINGULAR.  All  without  ex- 
ception. 

ALL  FAULTS.  A  term  in  common  use  in 
the  trade.  A1  sale  of  goods  with  "all  faults," 
in  the  absence  of  fraud  on  the  part  of  the 
vendor,  covers  all  such  faults  and  defects  as 
are  not  inconsistent  with  the  identity  of  the 
goods  as  the  goods  described;  Whitney  v. 
Boardman,  US  Mass.  242;  5  B.  &  Aid.  240. 

ALL  FOURS.  A  metaphorical  expression, 
signifying  that  a  case  agrees  in  all  its  cir- 
cumstances with  another. 

ALLEGATA.  A  word  which  the  emperors 
formerly  signed  at  the  bottom  of  their  re- 
scripts and  constitutions;  under  other  instru- 
ments they  usually  wrote  signata  or  testata. 
Encyc.  Lond. 

ALLEGATA  ET  PROBATA  (Lat.  things 
alleged  and  proved).     The  allegations  made 


by  a  party  to  a  suit,  and  the  proof  -d. 
in   their  support 

It  is  a  general  rule  of  evidence  that  the 
allegata  and  probata  must  corres] 
is,  the  proof  must  at  least  be  suffi 
tensive  to   cover   all    the   alb-.    |  of    the 

party  which  are  material;   1    Greenl.    Ev.   $ 
51;  The   Sarah   Ann,  -J  Siinm.  206,    Fed 
Xo.  12,342;  White  v.  Noland,  3  Mart  X.  S. 
(La.)    636;  Boone  v.  Chiles,  10  Pet.   (1 
177,  9  L  Ed.  3S8. 

ALLEGATION.     The     assertion,      declara- 
tion, or  statement  of  a  party  of  what  b 
prove. 

In  Ecclesiastical  Law.  The  statement  of 
the  facts  Intended  to  be  relied  on  in  support 
of  a  contested  suit. 

It  is  applied  either  to  the  libel,  or  to  the  answer 
of  the  respondent  setting  forth  new  facts,  the  latter 
being,  however,  generally  called  the  defensive  alle- 
gation.    See   1   Browne,   Civ.    Law,  472,   473,    n. 

ALLEGATION  OF  FACULTIES.  A 

ment  made  by  the  wife  of  the  property  of  her 
husband,  for  the  purpose  of  obtaining  ali- 
mony. Lovett  v.  Lovett,  11  Ala.  763;  Wright 
v.  Wright,  3  Tex.  168. 

To  such  an  allegation  the  husband  makes 
answer,  upon  which  the  amount  of  alimony 
is  determined;  2  Lee,  Eccl.  593;  3  Pbill. 
Eccl.  387;  or  she  may  produce  other  proof, 
if  necessary  in  consequence  of  his  failure  to 
make  a  full  and  complete  disclosure;  2  Bagg. 
Cons.  199;  2  Bish.  M.  &  Div.  §  10S2. 

ALLEGIANCE.  The  tie  which  binds  the 
citizen  to  the  government,  in  return  for  the 
protection  which  the  government  affords 
him.  The  duty  which  the  subject  owes  to 
the  sovereign,  correlative  with  the  protec- 
tion received. 

It  is  a  comparatively  modern  corruption  of 
ligeance  (ligeantia) .  which  is  derived  from 
liege  (ligius),  meaning  absolute  or  unquali- 
fied. It  signified  originally  liege  fealty,  i.  e. 
absolute  and  unqualified  fealty.  18  L.  Q. 
Rev.  47. 

Acquired  allegiance  is  that  binding  a  citi- 
zen who  was  horn  an  alien,  but  has  been 
naturalized. 

Local  or  actual  allegiance  is  that  which  is 
due  from  an  alien  while  resident  in  a  coun- 
try in  return  for  the  protection  afforded  by 
the  government.  From  this  are  e.v 
foreign  sovereigns  and  their  representatives, 
naval  and  armed  forces  when  permitted  to 
remain  in  or  pass  through  the  country  or  it< 
waters. 

Natural  allegiance  is  that  which  results 
from  the  birth  of  a  person  within  the  terri- 
tory and  under  the  obedience  of  the  govern- 
ment.    -  Kent   -12. 

Allegiance  may  be  an  absolute  and  perma- 
;  obligation,  or  it  may  bo  a  qualified  and 

temporary  one;   the  citizen  or  subject  owes 
the  former  to  his  government  or  sovereign, 
until  by  some  act  he  distinctly  renoun- 
whilst    the   alien    domiciled    in   the    country 


ALLEGIANCE 


180 


ALLISION 


ewes  a  temporary  and  local  allegiance  con- 
tinuing during  such  residence;  Carlisle  v. 
U.  S.,  16  Wall.   (U.  S.)   154,  21  L.  Ed.  426. 

At  common  law,  in  England  and  America, 
natural    allegiance   could    not  be   renounced 
except  by  permission  of  the  government  to 
which  it  was  due;  1  Bla.  Com.  370,  371;  1 
East,  Tl.  Cr.  SI ;  Inglia  v.  Sailor's  Snug  Har- 
bor, 3  Pet.   (U.  S.)   99,  7  L.  Ed.  617;  Shanks 
v.  Dupont,  3  Pet.   (U.  S.)   242,  7  L.  Ed.  666; 
but  see  8  Op.  Att.-Gen.  TJ.  S.  139;  9  id.  356. 
Held  to  be  the  law  of  Great  Britain  in  1868; 
Cockb.  Nationality.    After  many  negotiations 
between  tbe  two  countries,  the  rule  has  been 
changed  in  the  United  States  by  act  of  July 
27,  1S6S.  and  in  England  by  act  of  May  14, 
1870.      Whether    natural    allegiance    revives 
upon  the  return  of  tbe  citizen  to  the  country 
of  his  allegiance  is  an  open  question ;  Whart. 
Confl.  L.  §  6.     See  Cockb.  Nationality;  Web- 
ster,   Citizenship;    Webster,    Naturalization; 
2  Whart.  Int.  L.  Dig.  ch.  vii. ;  Whart.  Confl. 
L. ;    Lawrence's    Wheat.    Int.    L.    App.      It 
is  said  to  be  due  to  the  king  in  his  politi- 
cal,   not   his   personal,    capacity;     L.   R.   17 
Q    B.  D.  54,  quoted  in  U.   S.  v.  Wong  Kim 
Ark,  169  U.  S.  663,  18  Sup.  Ct.  456,  42  L.  Ed. 
890 ;  and  so  in  this  country  "it  is  a  political 
obligation"   depending  not   on  ownership   of 
land,  but  on  the  enjoyment  of  the  protection 
of  government ;  Wallace  v.  Harmstad,  44  Pa. 
492 ;  and  it  "binds  the  citizen  to  the  observ- 
ance   of    all   laws"    of    his   own    sovereign; 
Adams  v.  People,  1  N.  Y.  173.     See  Alien; 
Naturalization  ;  Expatriation. 

ALLEGING   DIMINUTION.      See  Diminu- 
tion of  the  Record. 

ALLEVIARE.    To  levy  or  pay   an  accus- 
tomed fine.     Cowell. 

ALLEY.     See  Street. 


ALLIANCE.  The  union  or  connection  of 
two  persons  or  families  by  marriage;  affin- 
ity. 

In  International  Law.  A  contract,  treaty, 
or  league  between  two  or  more  sovereigns  or 
states,  made  for  purposes  of  aggression  or 
defence. 

Defensive  alliances  are  those  in  which  a 
nation  agrees  to  defend  her  ally  in  case  the 
latter  is  attacked. 

Offensive  alliances  are  those  in  which  na- 
tions unite  for  the  purpose  of  making  an  at- 
tack, or  jointly  waging  the  war  against  an- 
other nation. 

The  term  is  also  used  in  a  wider  sense, 
embracing  unions  for  objects  of  common  in- 
terest to  tbe  contracting  parties,  as  the 
"Holy  Alliance"  entered  into  in  1815  by 
Prussia,  Austria  and  Russia  for  the  purpose 
of  counteracting  tbe  revolutionary  movement 
in  the  interest  of  political  liberalism. 

ALLISION.  Running  one  vessel  against 
another. 

To  be  distinguished  from  collision,  which  denotes 
the  running  of  two  vessels  against  each  other. 


The  distinction  Is  not  very  carefully  observed,  but 
collision  is  used  to  denote  cases  strictly  of  allision. 

ALL0CATI0  NE  FACIENDA.  In  English 
Law.  A  writ  directed  to  the  lord  treasurer 
and  barons  of  the  exchequer,  commanding 
that  an  allowance  be  made  to  an  accountant 
for  such  moneys  as  he  has  lawfully  expended 
in  his  office. 

ALLOCATION.  An  allowance  upon  an  ac- 
count in  the  English  Exchequer.  Cowell. 
Placing  or  adding  to  a  thing.    Encyc.  Loud. 

ALL0CAT0  COMITATU.  A  new  writ  of 
exigent,  allowed  before  any  other  county 
court,  issued  on  the  former  not  being  fully 
served  or  complied  with.    Fitz.  Exigent  14. 

ALLOCATUR    (Lat,  it  is  allowed). 

A  Latin  word  formerly  used  to  denote  that 
a  writ  or  order  was  allowed.  See  State  v. 
Vanderveer,  7  N.  J.  L.  38. 

A  word  denoting  the  allowance  by  a  mas- 
ter or  prothonotary  of  a  bill  referred  for  his 
consideration,  whether  touching  costs,  dam- 
ages, or  matter  of  account.  Lee,  Diet; 
Archb.  Pr.  129. 

Where  an  appeal  can  be  taken  only  by 
permission  of  the  court,  it  is  said  to  be  by 
special  allocatur. 

ALLOCATUR  EXIGENT.  A  writ  of  exi- 
gent which  issued  in  a  process  of  outlawry, 
upon  the  sheriff's  making  return  to  the  orig- 
inal exigent  that  there  were  not  five  county 
courts  held  between  the  teste  of  the  original 
writ  and  the  return  day.    1  Tidd,  Pr.  12S. 

ALLOCUTION.  The  formal  address  of 
the  judge  to  the  prisoner,  asking  him  if  he 
has  anything  to  say  why  sentence  should 
not  be  pronounced  against  him. 

In  case  of  conviction  of  an  offence  not  cap- 
ital the  omission  is  not  fatal  and  the  judg- 
ment will  not  be  reversed  therefor;  State  v. 
Ball,  27  Mo.  324. 

In  England  it  was  held  error,  "for  it  is  a 
necessary  question,  because  he  may  have  a 
pardon  to  plead,  or  may  move  in  arrest  of 
judgment,"  and  for  that  reason  the  attainder 
was  reversed;  3  Salk.  35S ;  2  id.  630.  But 
in  this  country  it  is  not  material  "whether  a 
pardon  was  produced  before  or  after  judg- 
ment, as  no  attainder  or  other  such  conse- 
quences result  from  a  capital  conviction  here, 
which  a  pardon  may  not  remove" ;  State  v. 
Ball,  27  Mo.  324.  Form  of  entry  was:  "And 
thereupon  it  is  forthwith  demanded  of  the 
said  J.  S.,  if  he  hath  or  knoweth  anything  to 
say  why  the  said  justices  here  ought  not 
upon  the  premises  and  verdict  aforesaid  to 
proceed  to  judgment  against  him;  who  noth- 
ing further  saith,  unless  as  he  had  before 
said.  Whereupon,"  etc.  Arch.  Cr.  PI.  &  Pr. 
(23d  ed.)   226. 

ALLODIAL.  Held  in  alodum.  See  Alod, 
where  the  more  recent  understanding  of  tho 
meaning  and  the  accepted  spelling  of  these 
words  are  found. 


ALLONGE 


181 


ALLOW 


ALLONGE  (Fr.).  A  piece  of  paper  an- 
nexed to  a  bill  of  exchange  or  promissory 
note,  on  which  to  write  endorsements  for 
which  there  is  no  room  on  the  instrument 
itself.  Pardessus,  n.  343;  Story,  Prom. 
Notes,  §§  121,  151;  Tied,  on  Com.  Paper  264. 
See  Indorskmknt. 

ALLOTMENT.  A  share  or  portion;  that 
which  is  allotted. 

The  division  or  distribution  of  land. 

AIM  in  nit  System.  A  system  in  Kngland 
of  assigning  small  portions  of  land,  from  the 
eighth  of  an  acre  to  four  or  five  acres,  to  be 
cultivated  by  day-laborers  after  their  ordi- 
nary day's  work,     Brande. 

Allotment  Certificate.  A  document  issued 
to  nn  applicant  for  shares  in  a  company  or 
public  loan  announcing  the  number  of  shares 
allotted  or  assigned  and  the  amounts  and  due 
dates  of  the  calls  or  different  payments  to 
be  made  on  the  same.  Where  a  letter  with- 
drawing an  application  for  shares  was  re- 
ceived after  the  shares  had  been  allotted,  but 
before  the  notice  of  allotment  was  mailed, 
the  applicant  was  held  entitled  to  have  his 
name  removed  from  the  register  of  share- 
holders and  to  have  the  deposit  returned;  81 
L.  T.  It.  512.     See  Shareholder. 

To  constitute  a  public  allotment  of  shares 
there  must  be  an  issue  to  persons  other  than 
those  taking  shares  in  payment  of  wares  or 
for  work  done,  or  as  a  qualification  for  a 
seat  on  the  board ;    19  T.  L.  R.  614. 

An  allotment  of  shares  is  an  appropriation 
by  the  directors  of  a  company  of  shares  to  a 
particular  person,  but  it  does  not  necessarily 
create  the  status  of  membership;  SO  L.  T. 
347. 

ALLOTMENT  NOTE.  "A  writing  by  a 
seaman,  whereby  he  makes  an  assignment  of 
part  of  his  wages  in  favor  of  his  wife,  father 
or  mother,  grandfather  or  grandmother, 
brother  or  sister.  Every  allotment  note 
must  be  in  a  form  sanctioned  by  the  Board 
of  Trade.  The  allottee,  that  is  the  person  in 
whose  favor  it  is  made,  may  recover  the 
amount  before  justices  of  the  peace."  Moz. 
&  Wh. 

ALLOW.  To  sanction,  either  directly  or 
indirectly ;  as  opposed  to  merely  suffering  a 
thing  to  be  done.  [1S94]  2  Q.  B.  412.  A 
claim  is  said  to  be  allowed  by  a  court. 

To  permit;  Kearns  v.  Kearns,  107  Pa.  575; 
Doty  v.  Lawson,  14  Fed.  892;  3  II.  &  C.  75; 
to  yield;  Doty  v.  Lawson,  14  Fed.  S92;  to 
suffer,  to  tolerate ;  Gregory  v.  U.  S.,  17 
Blatchf.  325,  Fed.  Cas.  No.  5.S03;  to  fix; 
Hinds  v.  Marmolejo,  60  Cal.  229 ;  to  substi- 
tute by  way  of  compensation  something  for 
another;  Glenn  v.  Glenn,  41  Ala.  571.  I  al- 
low to  give  is  equivalent  to  I  intend  to  give; 
Harmon  v.  James,  7  Ind.  263;  Hunter  v. 
Stembridge,  12  Ga.  192 ;  it  is  used  as  a 
synonym  of  intent  by  unlearned  persons  in 
wills;  id.;  it  is  also  used  as  an  equivalent  of 


I  will  ;    Ramsey  v.  Ilanlon,  33  Fed.  42,1.     In 
the  National  Banking  Act,  providin- 
terest  may  be  taken  at  a  rate  "allowed  by 
the  laws  of  the  state  or  territory,"  it  :: 
fixed;    Hinds  v.  Marmolejo,  CO  Cal.  229. 

ALLOWANCE.  A  definite  sum  or  quanti- 
ty set  apart  or  granted.  The  share  or  por- 
tion given  to  a  married  woman,  child,  trus- 
tee, etc.  Smith  v.  Smith,  45  Ala.  264.  It  is 
said  to  include  what  is  awarded  to  a  trustee 
fur  expenses,  etc.,  in  addition  to  his 
fees;  Downing  v.  Marshall,  37  N.  Y.  380;  <>r 
a  perquisite  to  an  officer  in  addition  to  his 
salary,  as  for  room,  fire  or  light;  14  Q.  B. 
I).  735;  23  id.  66,  531.  The  term  is  ordina- 
rily only  another  name  for  a  gift  or  gratuity 
to  a  child  or  other  dependent;  Taylor  v. 
Staples,  8  R.  I.  170,  5  Am.  Rep.  556. 

The  term  is  not  properly  used  to  express 
contractual  relation  or  regular  compensation, 
but  applies  rather  to  the  case  of  voluntary 
action  in  favor  of  dependents,  servants  or 
the  poor ;  Mangam  v.  City  of  Brooklyn,  98 
N.  Y.  585,  50  Am.  Rep.  705,  where  the  mean- 
ing of  the  word  is  discussed  critically  and  at 
length.  It  has  been  used  in  a  judge's  cer- 
tificate as  the  equivalent  of  settlement:  At- 
chison, T.  &  S.  F.  R.  Co.  v.  Cone,  37  Kan. 
5G7,  15  Pac.  499 ;  or  to  express  the  approval 
of  the  court;  Gildart's  Heirs  v.  Starke,  1 
How.  (Miss.)  450. 

ALLUVI0  MARIS  (Eat).  Soil  formed  by 
the  washing-up  of  earth  from  the  sea. 
Schultes,  Aq.  Rights  138. 

ALLUVION.  That  increase  of  the  earth 
on  a  bank  of  a  river,  or  on  the  shore  of  tin- 
sea,  by  the  force  of  the  water,  as  by  a  cur- 
rent or  by  waves,  or  from  its  recession  in  a 
navigable  lake,  which  is  so  gradual  that  no 
one  can  judge  how  much  is  added  at  each 
moment  of  time.  Inst.  1.  2,  t.  1,  §  20;  3  B.  & 
C.  91;  Ang.  Watercourses  53;  Trustees  of 
Hopkins  Academy  v.  Dickinson,  9  Cush. 
(Mass.)  551;  Lovingston  v.  St.  Clair  County, 
04  111.  58,  16  Am.  Rep.  516;  Gould,  Waters 
§  155. 

Conversely,  where  land  is  submerged  by 
the  gradual  advance  of  the  sea,  the  sover- 
eign acquires  the  title  to  the  part  thereby 
covered  and  it  ceases  to  belong  to  the  for- 
mer owner;  Wilson  v.  Shiveley,  11  Or.  '_M7, 
4  Pac.  324;  5  Mees  &  W.  327,  4  C.  P.  D.  438  : 
Trustees,  etc.,  of  Town  of  East  Hampton  v. 
Kirk.  tsl  N.  Y.  218,  38  Am.  Rep.  505. 

The  proprietor  of  the  bank  increased  by 
alluvion  is  entitled  to  the  addition,  this  be- 
ing regarded  as  the  equivalent  for  the  loss 
he  may  sustain  from  the  encroachment  of 
the  waters  upon  his  land;  Chapman  v.  Hos- 
kins,  2  Bid.  Ch.  Dec.  4s~:  Ingraham  v.  Wilk- 
inson, 4  Pick.  (Mass.)  273,  16  Am.  Dec.  342; 
Murry  v.  Sermon,  s  N.  C.  56;  Lamb  v.  Rick- 
ets, 11  Ohio,  311 :  Municipality  No.  2  v 
ton  Press.  18  La.  122,  36  Am.  Dec.  624;  Iland- 
ly  v.  Anthony,  5  Wheat  (U.  S.)  380,  5  L.  Ed. 


ALLUVION 


182 


ALLUVION 


113;  Gerrish  v.  dough,  4S  N.  II.  0,  97  Am.  | 
Dec.  5S1,  2  Am.  Rep.  165;  Lovingston  v.  \ 
County  of  St.  Clair,  64  111.  56,  16  Am.  Rep. 
516;  Niehaus  v.  Shepherd,  26  Ohio  St  40; 
Cook  v.  McClure,  5S  N.  Y.  437,  17  Am.  Rep. 
270;  Kraut  v.  Crawford,  IS  la.  549,  87  Am. 
Dec.  414;  Jefferis  v.  Land  Co.,  134  U.  S.  17S, 
10  Sup.  Ct  518,  33  L  Ed.  872;  Freehand  v. 
R.  R.  Co.,  197  Pa.  529,  47  Atl.  745,  58  L.  R. 
A.  20G,  SO  Am.  St.  Rep.  850;  Rutz  v.  Seeger, 
35  Fed.  18S;  Goodsell  v.  Lawson,  42  Md.  348. 
The  increase  is  to  be  divided  among  riparian 
proprietors  by  the  following  rule:  measure 
the  whole  extent  of  their  ancient  line  on  the 
river,  and  ascertain  how  many  feet  each 
proprietor  owned  on  this  line;  divide  the 
newly-formed  river-line  into  equal  parts,  and 
appropriate  to  each  proprietor  as  many  of 
these  parts  as  he  owned  feet  on  the  old  line, 
and  then  draw  lines  from  the  points  at 
which  the  proprietors  respectively  bounded 
on  the  old  to  the  points  thus  determined  as 
the  points  of  division  on  the  newly-formed 
shore.  In  applying  this  rule,  allowance 
must  be  made  for  projections  and  indenta- 
tions in  the  old  line;  Inhabitants  of  Deer- 
field  v.  Pling  Arms.  17  Pick.  (Mass.)  41,  2S 
Am.  Dec.  276;  Emerson  v.  Taylor,  9  Greenl. 
(Me.)  44,  23  Am.  Dec.  531;  Batchelder  v.  Ken- 
iston,  51  N.  H.  496.  12  Am.  Rep.  143;  Wood- 
bury v.  Short,  17  Vt.  387,  44  Am.  Dec.  344; 
see  Clark  v.  Campau,  19  Mich.  325;  John- 
ston v.  Jones,  1  Black.  (U.  S.)  209,  17  L.  Ed. 
117 ;  Kehr  v.  Snyder,  114  111.  313,  2  N.  E.  68, 
55  Am.  Rep.  806.  Where  the  increase  is  in- 
stantaneous, it  belongs  to  the  sovereign,  up- 
on the  ground  that  it  was  a  part  of  the  bed 
of  the  river  of  which  he  was  proprietor; 
Hagen  v.  Campbell,  8  Port.  (Ala.)  9,  33  Am. 
Dec.  267;  2  Bla.  Com.  269;  the  character  of 
alluvion  depends  upon  the  addition  being 
imperceptible;  3  B.  &  C.  91;  County  of  St. 
Clair  v.  Lovingston,  23  Wall.  (U.  S.)  46,  23  L. 
Ed.  59 ;  Municipality  No.  2  v.  Cotton  Press, 
18  La.  122,  36  Am.  Dec.  624. 

Sea-weed  thrown  upon  a  beach,  as  par- 
taking of  the  nature  of  alluvion,  belongs  to 
the  owner  of  the  beach;  Phillips  v.  Rhodes, 
7  Mete.  (Mass.)  322;  Emans  v.  Turnbull,  2 
Johns.  (N.  Y.)  322,  3  Am.  Dec.  427;  3  B.  & 
Ad.  967;  Mather  v.  Chapman,  40  Conn.  382, 
16  Am.  Rep.  46;  Clement  v.  Burns,  43  N.  II. 
609;  Trustees  of  East  Hampton  v.  Kirk,  68 
N.  Y.  459  ;  id.,  84  N.  Y.  215,  38  Am.  Rep.  505. 
But  sea-weed  below  low-water  mark  on  the 
bed  of  a  navigable  river  belongs  to  the  pub- 
lic ;  Chapman  v.  Kimball,  9  Conn.  38,  21  Am. 
Dec.  707;  Mather  v.  Chapman,  40  Conn.  382, 
16  Am.  Rep.  46;  Nudd  v.  Ilobbs,  17  N.  H. 
527;   Peck  v.  Lockwood,  5  Day  (Conn.)  22. 

The  doctrine  as  to  alluvion  is  equally  ap- 
plicable to  tide-waters,  non-tidal  rivers  and 
lakes;  Gould,  Waters  §  155;  Barney  v.  Keo- 
kuk, 94  U.  S.  324,  24  L.  Ed.  224 ;  County  of 
St.  Clair  v.  Lovingston,  23  Wall.  (U.  S.)  46, 
23  L.  Ed.  59;  Lovingston  v.  County,  64  111. 
56,  16  Am.  Rep.  516;    Benson  v.  Morrow,  61 


Mo.  345;    Ridgway  v.   Ludlow,  5S  Ind.  248; 
4  C.  P.  D.  438;   7  II.  &  N.  151. 

Alluvion  differs  from  avulsion  in  this,  that 
the  latter  is  sudden  and  perceptible ;  County 
of  St.  Clair  v.  Lovingston,  23  Wall.  (U.  S.) 
46,  23  L.  Ed.  59.  See  Avulsion.  And  see  2 
Ld.  Raym.  7M7  ;  Cooper,  Inst.  1.  2,  t.  1 ;  Ang. 
Waterc.  §  53;  Phill.  Int.  Law  255;  Aug.  Tide 
Waters  249;  Inst.  2.  1.  20;  Dig.  41.  1.  7; 
id.  39.  2.  9 ;  id.  6.  1.  23 ;  id.  41.  1.  5.  For  an 
interesting  English  case  involving  the  jus 
<i  l!  it  ion,  see  address  of  M.  Crackanthorpe 
before  Am.  Bar  Assn.  Report  1S96.  See 
Accretion  ;    Riparian  Proprietors. 

ALLY.  A  nation  which  has  entered  into 
an  alliance  with  another  nation.     1  Kent  69. 

A  citizen  or  subject  of  one  of  two  or  more 
allied  nations.  4  C.  Rob.  Adm.  251;  6  id. 
205;  Miller  v.  The  Resolution,  2  Dall.  (U.  S.) 
15,  1  L.  Ed.  263;   Dane,  Abr.  Index. 

ALMANAC.  A  book  or  table  containing  a 
calendar  of  daj^s,  weeks,  and  months,  to 
which  various  statistics  are  often  added, 
such  as  the  times  of  the  rising  and  setting 
of  the  sun  and  moon,  etc.     Whewell. 

The  court  will  take  judicial  notice  of  an 
almanac;  3  Bla.  Com.  333;  State  v.  Morris, 
47  Conn.  179 ;  Munshower  v.  State,  55  Md. 
11,  39  Am.  Rep.  414;  Reed  v.  Wilson,  41  N. 
J.  L.  29 ;   People  v.  Chee  Kee,  61  Cal.  404. 

A  L  MAR  I  A.  The  archives,  or,  as  they  are 
sometimes  styled,  muniments  of  a  church  or 
library. 

ALMOIN.     Alms.     See  Frankalmoin. 

ALMONER.  One  charged  with  the  dis- 
tribution of  alms.  The  office  was  first  in- 
stituted in  religious  houses  and  although  for- 
merly one  of  importance  is  now  in  England 
almost  a  sinecure.    See  Lord  High  Almoner. 

ALMS.  Any  species  of  relief  bestowed  up- 
on the  poor. 

That  which  is  given  by  public  authority 
for  the  relief  of  the  poor.  Shelf.  Mortal. 
802,  note  (X);  Hayw.  Elect.  263;  1  Dougl. 
El.  Cas.  370;  2  id.  107.  As  to  its  meaning 
historically,  see  1  Poll.  &  Maitl.  219. 

ALMS   FEE.     Peter's  pence,  which  see. 

ALMSHOUSE.  A  house  for  the  publicly 
supported  paupers  of  a  city  or  county.  Peo- 
ple v.  City  of  New  York,  36  Hun  (N.  Y.)  311. 
In  England  an  almshouse  is  not  synonymous 
with  a  workhouse  or  poorhouse,  being  sup- 
ported by  private  endowment. 

ALNAGER  (spelled  also  Vlnager).  A 
public  sworn  officer  of  the  king,  who,  by 
himself  or  his  deputy,  looks  to  the  assize  of 
woollen  cloth  made  throughout  the  land,  and 
to  the  putting  on  the  seals  for  that  purpose 
ordained.  Statute  17  Rlc.  II.  c.  2;  Cowell ; 
Blount;   Termes  de  la  Ley. 

AL0D,  ALODIUM.  It  is  a  term  used  in 
opposition  to  feodum  or  fief,  which  means 
property,  the  use  of  which  was  bestowed  up- 


ALOD,  ALODIUM 


183 


ALOLIA11II 


on  another  by  the  proprietor,  on  condition 
that  the  grantee  should  perform  certain  serv- 
ices for  the  grantor,  and  upon  the  failure  of 
which  the  property  should  revert  to  the  orig- 
inal possessor.     See  1  Poll.  &  Maltl.  45. 

A  kind  of  tenure  in  England,  not  Infre- 
quently mentioned  in  Domesday  Book.  It  is 
a  French  term  and,  in  Continental  law,  is  up- 
posed  to  feud  urn.  But  no  such  opposition  can 
be  traced  in  the  English  common  law  after 
the  Conquest.  All  ownership  of  land  in  lam- 
land  resolved  itself  into  tenure,  derived  from 
a  royal  grant  in  consideration  of  service. 
There  was  no  independent  property  in  Eng- 
lish feudal  law  like  the  dominium  of  Roman 
law.  or  like  the  alien  of  Southern  Fiance. 
Vinogradoff,  Engl.  Soc.  in  Eleventh  Cent.  L':;r,. 
Maitland  (Domesday  Book  and  Beyond  lot) 
takes  the  same  view:  "Such  sparse  evidence 
as  we  can  obtain  from  Normandy  strengthens 
our  belief  that  the  wide,  the  almost  insup- 
erable gulf  that  modern  theorists  have  found 
or  set  between  'alodial  ownership'  and  'feud- 
al tenure'  was  not  perceptible  in  the  11th 
( tentury." 

These  writers  express  the  result  of  modern 
research  on  alod  in  early  English  institu- 
tions. But  a  different  meaning  has  been 
given  it  from  Coke  down  to  recent  times 
and,  in  that  sense,  has  become  fixed,  as  a 
mode  of  expression,  in  our  law7.  This  will 
appear  from  the  following  (from  the  last 
edition  of  this  work): 

An  estate  held  by  absolute  ownership, 
without  recognizing  any  superior  to  whom 
any  duty  is  due  on  account  thereof.  1 
Washb.  R.  P.   (5th  ed.)    *16. 

In  the1  United  States  the  title  to  land  is 
essentially  allodial,  and  every  tenant  in  fee- 
simple  has  an  absolute*  and  unqualified  do- 
minion over  it;  yet  in  technical  language  his 
estate  is  said  to  be  in  fee,  a  word  which  im- 
plies a  feudal  relation,  although  such  a  re- 
lation has  ceased  to  exist  in  any  form,  while 
in  several  of  the  states  the  lands  have  been 
declared  to  be  allodial  ;  Wallace  v.  llarm- 
stad.  44  Pa.  492;  Matthews  v.  Ward,  10  Gill 
&  J.  (Md.)  443;  but  see  Com.  v.  Alger,  7 
<"ush.  (Mass.)  92;  2  Sharsw.  Bla.  Com.  77,  n. ; 
I  Washb.  R.  P.  (5th  ed.)  *41,  *42 ;  Sharsw. 
Lect.  on  Feudal  Law  Q870).  In  some  states, 
the  statutes  have  declared  lands  to  be  al- 
lodial. See  also  Barker  v.  Dayton,  28  Wis. 
367. 

In  England  there  is  no  allodial  tenure,  for 
all  land  is  held  mediately  or  immediately  of 
the  king;  but  the  wrords  tenancy  in  fee-sim- 
ple are  there  properly  used  to  express  the 
most  absolute  dominion  which  a  man  can 
have  over  his  property ;  3  Kent  Com.  *487 ; 
Cruise,  Trelim.  Dis.  c.  1,  §  13;  2  Bla.  Com. 
105. 

ALOD  IAN.  Sometimes  used  for  alodial, 
but  not  well  authorized.     Co  well. 

ALOD  I AR 1 1.  Those  who  own  alodial 
lands.     Tho.se  who  have  as  large  an  estate 


as  a  subject  can  have.     Co.  Litt.: 
Tenure  A.    But  see  Alod. 

ALONE.  Apart  from  others;  singly; 
Salem  Capital  Flour  Mills  Co.  v.  V. 
Ditch  &  Canal  Co.,  33  Fed.  154. 

ALONG.  By,  on,  up  to  or  over,  according 
to  the  subject-matter  and  context  Church 
v.  Meeker,  34  Conn.  425;  Walton  v.  B 
67  Mo.  58;  l  B.  &  AdoL  448;  Benton  v.  Hora- 
ley,  71  Ga.  619;  Stevens  v.  k.  Co.,  34  N.  J. 
L.  532,  3  Am.  Rep.  269;  id.,  21  X.  J.  Eq.  259; 
but  not  necessarily  touching  at  all  points; 
Com.  v.  Franklin,  133  Mass.  569. 

ALSO.  The  word  imports  no  more  than 
"item"  and  may  mean  the  same  as  "more- 
over"; but  not  the  same  as  "in  like  manner"; 
Evans  v.  Knorr.  4  Rawle  (Pa.)  68.  It  may  be 
(1)  the  beginning  of  an  entirely  different 
sentence,  or  (2)  a  copulative  carrying  on  the 
sense  of  the  immediately  preceding  words  in- 
to those  immediately  succeeding.  Stroud, 
Jud.  Diet.,  citing  1  Jarm.  497  n.;   1  Salk.  239. 

ALT  A  PROD  ITIO.     High  treason. 

ALT  A   VIA.     The  highway. 

ALTARAGE.  Offerings  made  on  the 
altar;  all  profits  which  accrue  to  the  priest 
by  means  of  the  altar.     Ayliffe,  Par.  Gl. 

ALTERATION.  A  change  in  the  terms  of 
a  contract  or  other  written  instrument  by  a 
party  entitled  under  it,  without  the  consent 
of  the  other  party,  by  which  its  meaning  or 

language  is  changed. 

The  term  is  properly  applied  to  the  change  in  the 
language  of  instruments,  and  is  not  used  of  changes 
in  the  contract  itself.  And  it  is  in  strictness  to  be 
distinguished  from  the  act  of  a  stranger  in  chang- 
ing the  form  or  language  of  the  instrument,  which 
is  called  a  spoliation.  This  Jatter  distinction  is  not 
always  observed   in   practice,   however. 

Also  sometimes  applied  to  a  change  made  in  a 
written  instrument,  by  agreement  of  the  parties  ; 
but  this  use  of  the  word  is  rather  colloquial  than 
technical.  Such  an  alteration  becomes  a  new  agree- 
ment, superseding  the  original  one ;  Leake,  Cont. 
430. 

An  alteration  avoids  the  instrument;  11 
Coke  27;  5  C.  B.  1S1 ;  Lewis  v.  Payn,  8  Cow. 
(N.  Y.)  71,  18  Am.  Dec.  427;  Wright  v. 
Wright,  7  X.  J.  L.  175,  11  Am.  Dec.  546; 
Weguer  v.  State,  28  Tex.  App.  U9,  13  S.  W. 
G08;  Palmer  v.  Poor,  121  Ind.  135,  22  X.  E. 
9S4,  6  L.  K.  A.  469;  but  not.  it  seems,  if  the 
alteration  be  not  material:    Lowers  v.  Jewell. 

2  N.  H.  543;  Nichols  v.  Johnson.  10  Conn. 
L92;  smith  v.  Crooker,  5  Mass.  540;  Lang- 
don  v.  Paul,  20  Vt.  217:   Huntington  v.  Finch, 

3  Ohio  St.  4  15;  Palmer  v.  Largeiit.  5  Neb. 
22.".,  li.~i  Am.  Rep.  47'. > :  Oliver  v.  llawley.  5 
Neb.  139;  Morrill  v.  Otis,  L2  X.  II.  466;  King 
v.  Lea.  13  Colo.  69,  21  I'ac.  1084;  Harper  v. 
Reaves,  132  Ala.  625,  32  Smith.  721  (a  deed'  ; 
Warder,  Bushnell  «fc  Glessner  Co.  v.  Stewart. 
2  Marv.  (Del.)  275,  36  Atl.  SS ;  Crowe  v. 
Beem,  36  Ind.  App.  207,  75  X.  E.  302.  The 
insertion  of  such  words  as  the  law  supplies 
is  said  to  be  not  material ;   Granite  Ry.  Co.  v. 


ALTERATION 


184 


ALTERATION 


Bacon,  15  Pick.  (Mass.)  239 ;  Thornton  v.  Ap- 
pleton,  29  Me.  29S.  As  to  whether  tearing 
and  putting  on  a  seal  is  material,  see  Powers 
v.  Ware,  2  Pick.  (Mass.)  451;  Truett  v.  Wain- 
wright,  4  Gilm.  (111.)  411;  11  M.  &  W.  778. 
The  question  of  materiality  is  one  of  law  for 
the  court;  Martendale  v.  Follet,  1  N.  H.  95; 
Brackett  Ex'r  v.  Mountfort,  11  Me.  115; 
Wheelock  v.  Freeman,  13  Pick.  (Mass.)  165, 
23  Am.  Dec.  674:  Hill  v.  Calvin,  4  How. 
(Miss.)  231;  Pritchard  v.  Smith,  77  Ga.  463; 
and  depends  upon  the  facts  of  each  case; 
L.  R.  1  Ex.  D.  176.  The  principle  seems  to 
be  that  a  party  "is  discharged  from  his  lia- 
bility, if  the  altered  instrument,  supposed  to 
be  genuine,  would  operate  differently  to  the 
original  instrument,  whether  it  be  or  be  not 
to  his  prejudice;"  Anson,  Contr.  (2d  Am. 
Ed.)  *327;  5  E.  &  B.  89.  For  instances,  see 
Schwarz  v.  Oppold,  74  N.  Y.  307;  Leonard 
v.  Phillips,  39  Mich.  1S2,  33  Am.  Rep.  370; 
Toomer  v.  Rutland,  57  Ala.  379,  29  Am.  Rep. 
722 ;  Robinson  v.  State,  66  Ind.  331 ;  Moore 
v.  Hutchinson,  69  Mo.  429;  Express  Pub.  Co. 
v.  Aldine  Press,  126  Pa.  347,  17  Atl.  60S; 
Warder  v.  Willyard,  46  Minn.  531,  49  N.  W. 
300,  24  Am.  St.  Rep.  250.  Alteration  of  a 
deed  will  not  defeat  a  vested  estate  or  in- 
terest acquired  under  the  deed;  11  M.  &  W. 
800;  2  II.  Bla.  259;  Chessman  v.  Whitte- 
more,  23  Pick.  (Mass.)  231 ;  Barrett  v.  Thorn- 
dike,  1  Greenl.  (Me.)  73;  Withers  v.  Atkin- 
son, 1  Watts  (Pa.)  236;  Smith  v.  McGowan, 
3  Barb.  (N.  Y.)  404;  see  Bliss  v.  Mclntyre,  18 
Vt.  466,  46  Am.  Dec.  165;  but  as  to  an  action 
upon  covenants,  has  the  same  effect  as  alter- 
ation of  an  unsealed  writing;  11  M.  &  W. 
S00;  Chessman  v.  Whittemore,  23  Pick. 
(Mass.)  231;  Waring  v.  Smyth,  2  Barb.  Ch. 
(N.  Y.)  119,  47  Am.  Dec.  299.  As  to  filling 
blanks,  see  Blank. 

The  same  rule  as  to  alterations  applies  to 
negotiable  promissory  notes  as  to  other  in- 
struments ;  Wilson  v.  Hayes,  40  Minn.  531, 
42  N.  W.  467,  4  L.  R.  A.  19G,  12  Am.  St.  Rep. 
754.  The  unauthorized  insertion  of  "or  bear- 
er" in  a  note,  if  made  innocently,  will  not 
make  the  note  void;  Croswell  v.  Labree,  81 
Me.  44,  1G  Atl.  331,  10  Am.  St.  Rep.  238;  but 
the  insertion  of  "or  order"  will  avoid;  Tay- 
lor v.  Moore  (Tex.)  20  S.  W.  53. 

Where  the  alteration  of  a  promissory  note, 
though  made  by  the  holder,  is  prompted  by 
honest  motives,  the  instrument  retains  its 
legal  validity  and  a  bill  in  equity  will  lie  to 
recover  thereon ;  Wallace  v.  Tice,  32  Or.  283, 
51  Pac.  733 ;  the  fraudulent  detaching  a  stub 
containing  conditions  favorable  to  maker, 
from  a  note,  avoids  the  note;  Stephens  v. 
Davis,  85  Tenn.  271,  2  S.  W.  382. 

A  spoliation  by  a  third  party  without  the 
knowledge  or  consent  of  a  party  to  the  in- 
strument will  not  avoid  an  instrument  even 
if  material,  if  the  original  words  can  be  re- 
stored with  certainty;  1  Greenl.  Ev.  §  566; 
Andrews  v.  Calloway,  50  Ark.  358,  7  S.  W. 


449;  but  the  material  alteration  of  an  in- 
strument by  a  stranger,  while  it  is  in  the 
custody  of  the  promisee,  avoids  his  rights 
under  it;  11  Coke  27  6;  L.  R.  10  Ex.  330; 
because  one  who  "has  the  custody  of  an  in- 
strument made  for  his  benefit,  is  bound  to 
preserve  It  in  its  original  state;"  13  M.  & 
W.  352;  3  E.  &  B.  687;  Leake,  Cont.  425; 
but  see  Clapp  v.  Shephard,  23  Pick.  (Mass.) 
231. 

When  a  note  was  given  by  a  corporation 
payable  to  its  manager's  wife  for  his  salary, 
an  alteration  making  it  payable  to  the  man- 
ager himself  is  material;  Sneed  v.  Milling 
Co.,  73  Fed.  925,  20  C.  C.  A.  230. 

Where  there  has  been  manifestly  an  al- 
teration of  a  parol  instrument,  the  party 
claiming  under  it  is  bound  to  explain  the 
alteration ;  Wilde  v.  Armsby,  6  Cush.  (Mass.) 
314;  Simpson  v.  Stackhouse,  9  Pa.  186,  49 
Am.  Dec.  554;  Hills  v.  Barnes,  11  N.  H.  395; 
McMicken  v.  Beauchamp,  2  La.  290;  Warren 
v.  Layton,  3  Har.  (Del.)  404;  Commercial  & 
R.  Bank  of  Vicksburg  v.  Lum,  7  How.  (Miss.) 
414;  Tillou  v.  Ins.  Co.,-  7  Barb.  (N.  Y.)  564; 
6  C.  &  P.  273.  As  to  the  rule  in  case  of 
deeds,  see  Co.  Litt.  225  b;  1  Kebl.  22;  5  Eng. 
L.  &  Eq.  349 ;   Den  v.  Farlee,  21  N.  J.  L.  280. 

Under  the  common  law  erasures  and  al- 
terations of  written  instruments  were  pre- 
sumed to  have  been  made  at  the  time  of,  or 
anterior  to,  their  execution,  the  law  presum- 
ing the  honesty  of  purpose  and  action  until 
the  contrary  is  shown;  Paramore  v.  Lindsey, 
63  Mo.  66;  Gooch  v.  Bryant,  13  Me.  3S6 ;  Her- 
rick  v.  Malin,  22  Wend.  (N.  Y.)  3S8;  North 
River  Meadow  Co.  v.  Christ  Church,  22  N.  J. 
L.  424,  53  Am.  Rep.  258. 

See  Interlineation  ;    Spoliation. 

ALTERNAT.  A  usage  among  diplomatists 
by  which  the  rank  and  places  of  different 
powers,  who  have  the  same  right  and  pre- 
tensions to  procedence,  are  changed  from 
time  to  time,  either  in  a  certain  regular  or- 
der, or  one  determined  by  lot  In  drawing 
up  treaties  and  conventions,  for  example,  it 
is  the  usage  of  certain  powers  to  alternate, 
both  in  the  preamble  and  the  signatures,  so 
that  each  power  occupies,  in  the  copy  intend- 
ed to  be  delivered  to  it,  the  first  place. 
Wheat.  Int.  Law  §  157. 

ALTERNATIVE.  Allowing  a  choice  be- 
tween two  or  more  things  or  acts  to  be  done. 
In  contracts,  a  party  has  often  the  choice  which 
of  several  things  to  perform.  A  writ  is  in  the  alter- 
native which  commands  the  defendant  to  do  the 
thing  required,  or  show  the  reason  wherefore  he  has 
not  done  it ;  Finch  257 ;  3  Bla.  Com.  273.  Under 
the  common-law  practice,  the  first  mandamus  is  an 
alternative  writ ;  3  Bla.  Com.  Ill ;  but  in  modern 
practice  this  writ  is  often  dispensed  with  and  its 
place  is  taken  by  a  rule  to  show  cause.  See  Mak- 
damus. 

ALTIUS  N0N  T0LLENDI.  In  Civil  Law. 
A  serviture  by  which  the  owner  of  a  house 
is  restrained  from  building  beyond  a  certain 
height. 


ALTIUS  TOLLEXDI 


185 


AMBASSADOR 


ALTIUS     TOLLENDI.     In     Civil     Law.     A 

servitude  which  consists  in  the  right,  to  him 
who  is  entitled  to  it,  to  build  his  house  as 
high  as  he  may  think  proper.  In  general, 
every  one  enjoys  this  privilege,  unless  he  Is 
restrained  by  some  contrary  title. 

ALTO    ET   BASSO.     High  and  low. 
This  phrase  is  applied  to  an  agreement  made  be- 
tween two  contending  parties  to  submit  all  matters 
In   dispute,   alto  et  basso  to  arbitration.     Cowell. 

ALTUIYI    MERE.     The  high  sea. 

ALUMNUS.     A  foster-child. 
Also  a  graduate  from  a  school,  college,  or 
other  institution  of  learning. 

ALVEUS  (Lat).  The  bed  or  channel 
through  which  the  stream  flows  when  it  runs 
within  its  ordinary'  channel.     Calvinus,  Lex. 

Alveus  derelictus,  a  deserted  channel.  1 
Mackeldey,  Civ.  Law  280. 

AMALGAMATION.  Union  of  different 
races,  or  diverse  elements,  societies,  or  corpo- 
rations, so  as  to  form  a  homogeneous  whole 
or  new  body  ;  interfusion ;  intermarriage ; 
consolidation ;  coalescence ;  as  the  amalga- 
mation of  stock.    Stand.  Diet 

In  England  it  is  used  in  the  case  of  the 
merger  of  two  incorporated  companies. 

The  word  has  no  definite  meaning ;  it  in- 
volves the  blending  of  two  concerns  into 
one ;    [1904]  2  Ch.  268. 

See  Merger;   Shareholder. 

AMALPHITAN  TABLE.  A  code  of  sea 
laws  compiled  for  the  free  and  trading  re- 
public of  Amalphi  toward  the  end  of  the 
eleventh  century.    3  Keut  9. 

It  consists  of  the  laws  on  maritime  subjects  which 
were  or  had  been  in  force  in  countries  bordering  on 
the  Mediterranean  ;  and,  on  account  of  its  collecting 
them  into  one  regular  system,  it  was  for  a  long 
time  received  as  authority  in  those  countries.  1 
Azuni,  Mar.  Law  376.  It  became  a  part  of  the  law 
of  the  sea  ;  The  Scotia,  14  Wall.  (U.  S.)  170,  20  L. 
Ed.  822.     See  Code. 

AMBACTUS  (Lat.  amUre,  to  go  about). 
A  servant  sent  about;  one  whose  services 
his  master  hired  out     Spelman,  Gloss. 

AMBASSADOR  IN  INTERNATIONAL 
LAW.  Ambassadors  formed  the  first  class 
of  the  public  ministers  (q.  v.)  who  were  sent 
abroad  by  sovereign  states  with  authority  to 
represent  their  government  and  to  transact 
business  with  the  government  to  which  they 
were  sent. 

A  distinction  was  formerly  made  between 
Ambassadors  Extraordinary,  who  were  sent 
to  conduct  special  business  or  to  remain  for 
an  indeterminate  period,  and  Ambassadors  Or- 
dinary, who  were  sent  on  permanent  mis- 
sions ;  but  this  distinction  is  no  longer  ob- 
served. 

Ambassadors  are  regarded  as  the  personal 
representatives  of  the  head  of  the  state 
which  sends  them,  and  in  consequence  they 
are  entitled  to  special  honors,  and  have  spe- 
cial privileges,  chiefly  that  of  negotiating 
personally  with  the  head  of  the  state,  though 


this  privilege  is  of  little  value  at  the  i  :      -nt 
day,  owing  to  the  general  adoption  of 
tutional    forms    of    government.      Onl\ 
pires,   Kingdoms,  Grand  Duchies,  and 
Republics  are   entitled   to  send  and   re 
Ambassadors.      Until     recently    the     l 
States   was  represented   by  Ministers  Pleni- 
potentiary, never  having  sent  persons  of  the 
rank  of  Ambassador  in  the  diplomatic 
On    March   3,    1893,    a    law   was   passed    au- 
thorizing the  President  to  designate  as  Am- 
bassadors the  representatives  of  the  United 
States  to  such  countries  as  he  might  be  ad- 
vised were  so  represented  or  about  to  be  rep- 
resented  in   the   United    States.      In   conse- 
quence of  this  law  the  United  States  is  now 
represented  by  Ambassadors  in  Great  Britain, 
Germany,    Austria-Hungary,    France,    Italy, 
Mexico,  Brazil,  Russia,  Japan,  Turkey,   and 
Spain. 

Before  an  Ambassador  is  sent  to  a  foreign 
country,  it  is  the  custom  to  inquire  if  the 
designated  person  will  be  a  persona  grata  to 
the  government  of  that  country.  No  reasons 
need  be  given  by  the  foreign  government  for 
refusing  to  receive  a  given  individual.  After 
an  appointment  the  Ambassador  is  provided 
with  a  letter  of  credence  (q.  v.)  which  iden- 
tifies him  at  the  foreign  court 

The  duties  of  an  Ambassador  are  varied; 
he  is  the  mouthpiece  of  communications 
from  his  state  to  the  foreign  country ;  he 
must  keep  his  government  informed  upon  all 
.questions  of  interest  to  it ;  he  must  see  to 
the  protection  of  citizens  of  his  eountr. 
dent  in  the  foreign  state ;  and  he  may  nego- 
tiate treaties  when  his  government  specially 
empowers  him  to  do  so  by  giving  him  a  docu- 
ment called  Full  Poicers  (q.  v.). 

The  person  of  an  Ambassador  is  inviolable. 
He  is  exempt  from  both  the  criminal  and 
civil  jurisdiction  of  the  country  to  which  he 
is  sent.  As  early  as  1708  an  act  was  passed 
by  the  British  Parliament  confirming  the 
immunity  of  Ambassadors  from  arrest  and 
imposing  heavy  penalties  upon  any  persons 
who  should  serve  a  writ  or  process  upon 
them.  They  can  not  be  arrested  for  debt, 
nor  for  violation  of  the  law,  except  in  cases 
where  it  may  be  necessary  to  prevent  them 
from  committing  acts  of  violence.  If,  how- 
ever, they  should  be  so  regardless  of  their 
duty  and  of  the  object  of  their  immunity  as 
to  injure  or  openly  attack  the  laws  of  the 
foreign  government,  their  functions  may  be 
suspended  by  a  refusal  to  treat  with  them, 
or  application  can  be  made  to  their  own 
sovereign  for  their  recall,  or  they  may  be 
dismissed  or  required  to  depart  within  a 
reasonable  time. 

By  what  is  called  the  fiction  of  ex-tcrri- 
toriality,  the  exemption  of  an  ambassador 
from  the  jurisdiction  of  the  country  in  which 
he  resides  has  been  extended  to  his  house 
and  his  suite.  His  house  cannot  be  entered 
by  officers  of  police,  nor  can  his  servants  be 
arrested  by  the  ordinary  writ  or  process.    In 


AMBASSADOR 


ISO 


AMBIGUITY 


consequence,  the  Ambassador's  house  has 
sometimes  been  used  as  an  asylum  (q.  v.) 
for  criminals.  Much  diplomatic  controversy 
has  taken  place  upon  Ibis  point,  and  at  pres- 
ent asylum  is  not  given,  except  occasionally, 
in  times  of  revolution,  to  political  refugees. 
An  ambassador's  children  born  abroad  re- 
tain the  citizenship  of  their  father;  Geofroy 
v.  Riggs,  133  V.  S.  25S,  10  Sup.  Ct.  295,  33  L. 
Ed.  642;   Moore,  IV,  §§  623-695. 

AMBIDEXTER  (Lat.).  Skilful  with 
both  hands. 

Applied  anciently  to  an  attorney  who  took  pay 
from  both  sides,  and  subsequently  to  a  juror  guilty 
of  the  same  offence ;    Cowell. 

AMBIGUITY.  Duplicity,  indistinctness  or 
uncertainty  of  meaning  of  an  expression  used 
in  a  written  instrument. 

The  word  "uncertainty"  in  a  suit  refers  to 
the  uncertainty  defined  in  pleading  and  does 
not  include  ambiguity ;  Kraner  v.  Halsey,  82 
Cal.  209,  22  Pac.  1137. 

Latent  is  that  which  arises  from  some  col- 
lateral circumstance  or  extrinsic  matter  in 
cases  where  the  instrument  itself  is  suffi- 
ciently certain  and  intelligible.  Inhabitants 
of  Jay  v.  Inhabitants  of  East  Livermore,  50 
Me.  107;  Tilton  v.  Bible  Society,  60  N.  H. 
377,  49  Am.  Rep.  321;  Simpson  v.  Dix,  131 
Mass.  179;    Clark  v.  Woodruff,  83  N.  Y.  518. 

Patent  is  that  which  appears  on  the  face 
of  the  instrument ;  that  which  occurs  when 
the  expression  of  an  instrument  is  so  defec- 
tive that  a  court  which  is  obliged  to  place 
a  construction  upon  it,  cannot,  placing  itself 
in  the  situation  of  the  parties,  ascertain 
therefrom  the  parties'  intention.  Williams 
v.  Hichborn,  4  Mass.  205 ;  U.  S.  v.  Cantril, 
4  Cra.  (U.  S.)  167,  2  L.  Ed.  584;  1  Greenl. 
Ev.  §  292 ;  Ans.  Contr.  24S ;  Peisch  v.  Dick- 
son, 1  Mas.  9,  Fed.  Cas.  No.  10,911;  Cham- 
bers v.  Ringstaff,  69  Ala.  140;  Palmer  v. 
Albee,  50  la.  429;  Nashville  Life  Ins.  Co. 
v.  Mathews,  8  Lea  (Tenn.)  499. 

The  term  does  not  include  mere  inaccu- 
racy, or  such  uncertainty  as  arises  from  the 
use  of  peculiar  words,  or  of  common  words 
in  a  peculiar  sense;  Wigr.  Wills  174;  3  Sim. 
24 ;  3  M.  &  G.  452 ;  Brown  v.  Brown,  8  Mete. 
(Mass.)  576;  Farmers'  &  Mechanics'  Bank  v. 
Day,  13  Vt.  36;  see  Fish  v.  Hubbard's 
Admr's,  21  Wend.  (N.  Y.)  651;  8  Bing.  244; 
and  intends  such  expressions  as  would  be 
found  of  uncertain  meaning  by  persons  of 
competent  skill  and  information ;  1  Greenl. 
Ev.  §  298. 

Latent  ambiguities  are  subjects  for  the 
consideration  of  a  jury,  and  may  be  explain- 
ed by  parol  evidence;  1  Greenl.  Ev.  §  301; 
and  see  Wigr.  Wills  48;  5  Ad.  &  E.  302; 
3  B.  &  Ad.  728:  Brown  v.  Brown,  8  Mete. 
(Mass.)  576;  Astor  v.  Ins.  Co.,  7  Cow.  (N. 
Y.)  202;  Peisch  v.  Dickson,  1  Mas.  9,  Fed. 
Cas.  No.  10,911.  Patent  ambiguity  cannot  be 
explained  by  parol  evidence,  and  renders  the 
instrument  as  far  as  it  extends  inoperative; 


Williams  v.  Hichborn,  4  Mass.  205;  New 
Jersey  v.  Wilson.  7  Cra.  (U.  S.)  167,  3  L.  Ed. 
303;  Jarm.  Wills  (6th  Am.  Ed.)  *400.  See 
Xeal  v.  Reams,  SS  6a.  298,  14  S.  E.  617; 
Whaley  v.  Neill,  44  Mo.  App.  320;  Horner 
v.  Still  well,  35  N.  J.  L.  307;  Ilollen  v.  Davis, 
59  la.  444,  13  N.  W.  413,  44  Am.  Rep.  088; 
Pickering  v.  Pickering,  50  N.  H.  349;  Hyatt 
v.  Pugsley,  23  Barb.  (N.  Y.)  285;  Crooks  v. 
Whitford,  47  Mich.  283,  11  N.  W.  159;  Mar- 
shall v.  Gridley,  46  111.  247. 

See  Latent  Ambiguity;  Patent  Ambig- 
uity. 

AMBIT.  A  boundary  line.  Ellicott  v. 
Pearl,  10  Pet.  (U.  S.)  412,  442,  9  L.  Ed.  475. 

AMBITUS  (Lat).  A  space  beside  a  build- 
ing two  and  a  half  feet  in  width,  and  of  the 
same  length  as  the  building ;  a  space  two 
and  a  half  feet  in  width  between  two  ad- 
jacent buildings ;  the  circuit,  or  distance 
around.     Cicero ;    Calvinus,  Lex. 

AMBULANCE.  A  vehicle  for  the  convey- 
ance of  the  sick  or  wounded.  In  time  of 
war  they  are  considered  neutral  and  must  be 
respected  by  the  belligerents.  Oppenheim, 
Int.  L.  126. 

AMBULATORY  (Lat.  ambulare,  to  walk 
about).  Movable;  changeable;  that  which 
is  not  fixed. 

Amlndatorm  voluntas  (a  changeable  will) 
denotes  the  power  which  a  testator  possesses 
of  altering  his  will  during  his  lifetime. 

AMBUSH.  The  act  of  attacking  an  enemy 
unexpectedly  from  a  concealed  station;  a 
concealed  station,  where  troops  or  enemies 
lie  in  wait  to  attack  by  surprise;  an  ambus- 
cade ;  troops  posted  in  a  concealed  place,  for 
attacking  by  surprise.  To  lie  in  wait,  to  sur- 
prise, to  place  in  ambush. 

AMELIORATIONS.  Betterments.  6  Low. 
Can.  294 ;    9  id.  503. 

AMENABLE.  Responsible;  subject  to  an- 
swer in  a  court  of  justice ;  liable  to  punish- 
ment. 

AMENDE  HONORABLE.  A  penalty  im- 
posed upon  a  person  by  way  of  disgrace  or 
infamy,  as  a  punishment  for  any  offence,  or 
for  the  purpose  of  making  reparation  for  any 
injury  done  to  another,  as  the  walking  into 
church  in  a  white  sheet,  with  a  rope  about 
the  neck  and  a  torch  in  the  hand,  and  beg- 
ging the  pardon  of  God,  or  the  king,  or  any 
private  individual,  for  some  delinquency. 

In  French  Law.  A  punishment  somewhat 
similar  to  this,  which  bore  the  same  name, 
was  common  in  France ;  it  was  abolished  by 
the  law  of  the  25th  of  September,  1791 ;  Mer- 
lin, Rcpert.  In  1826  it  was  re-introduced  in 
cases  of  sacrilege  and  was  finally  abolished 
in  1S30. 

For  the  form  of  a  sentence  of  Amende 
Honorable,  see  D'Aguesseau,  CEuvres,  43e 
Plaidayer,  torn.  4,  p.  246. 

In  modern  usage,  an  apology. 


AMENDMENT 


187 


AMENDS 


AMENDMENT.     In    Legislation.     An  alter-  j 
ation  or  change  of  something  proposed  in  a 
bill  or  established  as  law. 

Thus  the  senate  of  the  United  States  may 
amend  money-biils  passed  by  the  house  of 
representatives,  but  cannot  originate  such 
bills.  The  constitution  of  the  United  States  ! 
contains  a  provision  for  its  amendment ;. U. 
S.  ('oust.  art.  5. 

In  Practice.  The  correction,  by  allowance 
of  the  court,  of  an  error  committed  in  the 
progress  of  a  cause. 

Amendments,  at  common  law,  independent- 
ly of  any  statutory  provision  on  the  subject, 
are  in  all  cases  in  the  discretion  of  the  court, 
for  the  furtherance  of  justice.  Under  stat- 
utes in  modern  practice,  they  are  very  liberal- 
ly allowed  in  all  formal  and  most  substantial 
matters,  either  without  costs  to  the  party 
amending,  or  upon  such  terms  as  the  court 
think  proper  to  order.     See  Jeofaille. 

An  amendment,  where  there  is  something 
to  amend  by,  may  be  made  in  a  criminal  as 
in  a  civil  case;  12  Ad.  &  E.  217;  Com.  v. 
Parker,  2  Pick.  (Mass.)  550.  But  an  indict- 
ment, which  is  a  finding  upon  the  oaths  of 
the  grand  jury,  can  only  be  amended  with 
their  consent  before  they  are  discharged; 
2  Hawk.  PL  Cr.  c.  25,  §§  97,  OS;  Com.  v. 
Child,  13  Pick.  (Mass.)  200;  State  v.  Mc- 
Carthy, 17  R.  I.  370,  22  Atl.  282;  but  see 
Miller  v.  State,  08  Miss.  221,  8  South.  273. 
In  many  states  there  are  statutory  provi- 
sions relative  to  the  amendment  of  indict- 
ments; State  v.  Curtis,  44  La.  Ann.  320,  10 
South.  784.  A  bill  of  exceptions  when  signed 
and  filed  becomes  a  part  of  the  record  and 
may  be  amended  like  any  other  record;  Mar- 
tin v.  R.  Co.,  53  Ark.  250,  13  S.  W.  7G5 ;  Lef- 
ferts  v.  State.  -It)  N.  J.  Law  26,  6  Atl.  521; 
Pollard  v.  Rutter,  35  111.  App.  370;  Burdoin 
v.  Town  of  Trenton,  116  Mo.  358,  22  S.  W. 
728. 

An  information  may  be  amended  after 
demurrer ;  4  Term  457 ;  4  Burr.  25(i8.  At 
common  law  a  mistake  in  an  information 
may  be  amended  at  any  time;  State  v. 
White,  64  Vt.  372,  24  Atl.  250. 

Where  a  verdict  is  supported  by  evidence, 
a  pleading  will  be  considered  as  amended ; 
Haley  v.  Kilpatrick,  104  Fed.  647,  44  C.  C. 
A.  102. 

Where,  in  the  course  of  a  trial,  it  appears 
that  the  pleadings  should  be  amended,  the 
usual  practice  is  to  move  that  "the  declara- 
tion (or  other  pleading)  be  amended  to  con- 
form to  the  facts."  Ordinarily  no  further 
action  is  required. 

An  amended  pleading  speaks  as  of  the 
time  of  the  original;  Baltimore  &  O.  R.  Co. 
v.  McLaughlin,  7:;  Fed.  519,  19  C.  C.  A.  551. 

It  is  not  permitted  by  amendment  to  make 
an  entirely  new  case;  In  re  Sims,  9  Fed. 
440. 

AMENDS.  A  satisfaction  given  by  a 
wrong-doer  to  the  party  injured,  for  a  wrong 
committed-     1  Lilly,  Reg.  81. 


By  statute  24  Geo.  II,  c.  44,   In  I 

and  by  similar  statutes  in  some  of  the  l 
•    of    the    peace,    upon 
notified   of  an    Intended  ast   them, 

may  tender  amends  for  the   wrong  al 
as  doin    by  them  in  their  official  chat 
and,  if  found  sufficient,  the  tender  bars  the 
action;    Like  v.  Shaw,  5  S.  &  Et.    (Pa.)    517. 

AMERCEMENT.  A  pecuniary  penalty 
imposed  upon  an  offender  by  a  judicial  tri- 
bunal. 

The  judgment  of  the  court  is,  that  the  party  be 
at  the  mercy  of  the  court  (.sit  in  m  a),  up- 

on which  the  affeerora — or,  in  the  superior  courts, 
the  coroner — liquidate  the  penalty.  As  distinguished 
from  a  fine,  at  the  old  law  an  amercement  was  for 
a  lesser  offence,  might  be  imposed  by  a  court  not 
of  record,  and  was  for  an  uncertain  amount  un- 
til it  had  been  affeered.  Either  paity  to  a  suit  who 
failed  was  to  be  amerced  pro  clamore  Jalso  (for  his 
false  claim) ;  but  these  amercements  have  been 
long  since  disused  ;  4  Bla.  Com.  379  ;  Bacon,  Abr. 
and  Amercements. 

The  officers  of  the  court,  and  any  person  who 
committed  a  contempt  of  court,  was  also  liable  to 
be  amerced. 

Formerly,  if  the  sheriff  failed  in  obeying 
the  writs,  rules,  or  orders  of  the  court,  he 
might  be  amerced;  but  this  practice  has 
been  generally  superseded  by  attachment. 
In  some  of  the  United  states,  however,  the 
sheriff  may,  by  statutory  provision,  be 
amerced  for  making  a  return  contrary  to  the 
provision  of  the  statute ;  Coxe  136,  169 ; 
Stephens  v.  Clark,  8  N.  J.  L.  270;  Wright  v. 
Green,  11  N.  J.  L.  334  :  President,  etc..  of 
Paterson  Bank  v.  Hamilton,  13  N.  J.  L  159; 
Le  Roy  v.  Blauvelt,  13  N.  J.  L.  341  ;  Daw- 
son v.  Holcomb,  1  Ohio,  275,  13  Am.  Dec 
618;  McLin  v.  Bardie,  25  N.  C.  407;  Cam.  & 
N.  477;  or  if  he  fails  to  make  a  return  with- 
in the  proper  time;  Sharp  v.  Ross,  7  Ohio 
Cir.  Ct.  55. 

AMERCEMENT  ROYAL.  In  Great  Brit- 
ain a  penalty  imposed  on  an  officer  for  a 
misdemeanor  in  his  office. 

AMERICAN.  Pertaining  to  the  western 
hemisphere  or  in  a  more  restricted  sense  to 
the  United  States.  See  Beardsley  v.  Select- 
men of  Bridgeport,  53  Conn.  4U3,  3  Atl.  557, 
55  Am.   Rep.   152. 

AMEUBLISSEMENT.  A  species  of  agree- 
ment which  by  a  fiction  gives  to  immovable 
goods  the  quality  of  movable.  Merl.  Rep. ;  1« 
Low.  Can.  25,  58. 

AMI  (Fr.).    A  friend.    See  Pbocheot  Amy. 

AMICABLE    ACTION.     An   action    e 
by  agreement  of  parties. 

This  practice  prevails  in  Pennsylvania.  When  en- 
tered, such  action  is  considered  as  if  it  had  been 
adversely  commenced  and  the  defendant  had  been 
regularly  summoned. 

It  presupposes  that  there  is  a  real  dispute 
between  the  panics,  an  actual  controversy 
and  adverse  interests.  The  parties,  to  save 
needless  expense  and  troul  le,  agree  to  con- 
duct the  suit  in  an  amicable  manner;  Lord 
v.    Veazie,   S   How.    (U.    S.)    255,    12   L.   Ed. 


AMICABLE  ACTION 


188 


AMICUS  CURIAE 


10G7 ;  Adams  v.  R.  Co.,  21  R,  I.  134,  42  Atl. 
515,  44  L.  R.  A.  275;  Ex  parte  Steele,  102 
Fed.  094.  It  differs  entirely  from  a  "Moot" 
Case  (q.  v.). 

An  agreement  between  a  county  and  a  pro- 
posed buyer  of  its  bouds  to  prosecute  a 
made-up  case  to  settle  the  question  of  the 
validity  of  the  bonds,  prior  to  issue,  at  the 
expense  of  the  couuty,  is  void;  Van  Horn  v. 
Kittitas  County,  112  Fed.  L 

See  Case  Stated. 

AMICUS  CURI/E  (Lat.  a  friend  of  the 
court).     In  Practice.     A  friend  of  the  court 

One  who,  for  the  assistance  of  the  court, 
gives  information  of  some  matter  of  law  in 
regard  to  which  the  court  is  doubtful  or 
mistaken;  such  as  a  case  not  reported  or 
which  the  judge  has  not  seen  or  does  not, 
at  the  moment,  recollect;  2  Co.  Inst  17S; 
2  Viner,  Abr.  475. 

This  custom  cannot  be  traced  to  Its  origin,  but  is 
immemorial  in  the  English  law.  It  Is  recognized  in 
the  Year  Books,  and  it  was  enacted  in  4  Hen.  IV. 
(1403)  that  any  stranger  as  "amicus  curiae"  might 
move  the  court,  etc.  Under  the  Roman  system  the 
Judex,  "especially  if  there  was  but  one,  called  some 
lawyer  to  assist  him  with  their  counsel"  "sibi  advo- 
cavit  ut  in  consilio  adessent ;"  Cic.  Quint.  2  Gell. 
xiv.  2 ;  Suet.  Lib.  33.  There  was  in  that  day  also 
the  "amicus  consiliari,"  who  was  ready  to  make 
suggestions  to  the  advocate,  and  this  "amicus"  was 
called  a  "ministrator ;"  Cic.  de  Orat.  II.  75.  This 
custom  became  incorporated  in  the  English  system, 
and  it  was  recognized  throughout  the  earlier  as  well 
as  the  later  periods  of  the  common  law.  At  first 
suggestions  could  come  only  from  the  barristers  or 
counsellors,  although  by  the  statute  of  Hen.  IV. 
a  "bystander"  had  the  privilege.  The  custom  in- 
cluded instructing,  warning,  informing,  and  moving 
the  court.  The  information  so  communicated  may 
extend  to  any  matter  of  which  the  court  takes  ju- 
dicial cognizance  ;    8  Coke  15. 

It  is  not  the  function  of  amicus  curia  to 
take  upon  himself  the  management  of  a 
cause;  Taft  v.  Transp.  Co.,  50  N.  H.  410; 
In  re  Pina's  Estate,  112  Cal.  14,  44  Pac.  332 ; 
Parker  v.  State,  133  Ind.  178,  32  N.  E.  830, 
33  X.  E.  110,  18  L.  R.  A.  507;  or  to  proceed 
by  error  or  appeal ;  Martin  v.  Tapley,  119 
Mass.  110 ;  or  demurrer ;  Ex  parte  Hender- 
son, 84  Ala.  30,  4  South.  2S4;  or  for  a  re- 
hearing; People  v.  Loan  Ass'n,  127  Cal.  400, 
58  Pac.  822,  59  Pac.  092. 

Any  one  as  amicus  curice  may  make  ap- 
plication to  the  court  in  favor  of  an  infant, 
though  he  be  no  relation ;  1  Ves.  Sen.  313 ; 
and  see  Williams  v.  Blunt,  2  Mass.  215;  In 
re  Green's  Estate,  3  Brewst.  (Pa.)  427;  In 
re  Guernsey's  Estate,  21  111.  443.  Any  attor- 
ney as  amicus  curice  may  move  the  dismis- 
sal of  a  fictitious  suit;  Haley  v.  Bank,  21 
Nev.  127,  20  Pac.  04,  12  L.  R.  A.  815; 
Birmingham  Loan  &  Auction  Co.  v.  Bank, 
100  Ala.  249,  13  South.  945,  40  Am.  St. 
Rep.  45;  Judson  v.  Jockey  Club,  14  Misc. 
Rep.  5G2,  30  N.  Y.  Supp.  128;  In  re  Guern- 
sey's Estate,  21  111.  443;  or  one  in  which 
there  is  no  jurisdiction;  Williams  v.  Blunt, 
2  Mass.  215;  In  re  Columbia  Real  Estate 
Co.,  101  Fed.  905;  Jones  v.  City  of  Jef- 
ferson, GO  Tex.  570,  1  S.  W.  903;  2  Show. 


590 ;  or  move  to  quash  a  vicious  indictment 
for  in  case  of  trial  and  verdict  judgment 
must  be  arrested ;  Comberb.  13 ;  or  suggest 
an  error  which  would  prevent  judgment  when 
the  absence  of  the  party  prevented  a  motion 
in  arrest ;  2  Show.  297.  He  may  be  allowed 
a  reasonable  compensation  to  be  taxed  by  the 
court;  In  re  St  Louis  Institute  of  Christian 
Science,  27  Mo.  App.  033. 

The  intervention  may  be  by  affidavit;  Ex 
parte  Guernsey's  Estate,  21  111.  443 ;  motion ; 
Haley  v.  Bank,  21  Nev.  127,  20  Pac.  04,  12 
L  R.  A.  815 ;  or  oral  statement ;  Olsen  v. 
Ins.  Co.,  11  Tex.  Civ.  App.  371,  32  S.  W.  440; 
or  it  may  be  requested  by  the  court;  Ex 
parte  Randolph,  2  Brock.  447,  Fed.  Cas.  No. 
11,558. 

The  term  is  sometimes  applied  to  counsel 
heard  in  a  cause  because  interested  in  a 
similar  one;  Ex  parte  Yeager,  11  Grat  (Va.) 
050;  State  v.  Rost,  49  La.  Ann.  1451,  22 
South.  421 ;  and  occasionably  to  strangers 
suggesting  the  correction  of  errors  in  the 
proceedings ;  Year  Books  4  Hen.  VI.  10 ;  11 
Mod.  137 ;  U.  S.  v.  Gale,  109  U.  S.  08,  3  Sup. 
Ct.  1,  27  L.  Ed.  857. 

Leave  to  file  briefs  as  amicus  curiw  will 
be  denied  when  it  does  not  appear  that  the 
applicant  is  interested  in  any  other  case  that 
will  be  affected  by  the  decision  and  the  par- 
ties are  represented  by  competent  counsel, 
whose  consent  has  not  been  secured;  North- 
ern Securities  Co.  v.  U.  S.,  191  U.  S.  555, 
24  Sup.  Ct  119,  48  L.  Ed.  299 ;  where  many 
cases  are  cited  in  the  argument. 

The  Attorney  General  of  the  United  States 
has  appeared  in  the  Supreme  Court  in  The 
Income  Tax  Cases,  158  U.  S.  001,  15  Sup. 
Ct  912,  39  L.  Ed.  1108;  The  Corporation 
Tax  Cases,  220  U.  S.  107,  31  Sup.  Ct.  342,  55 
L.  Ed.  389,  Ann.  Cas.  1912B,  1312;  The 
Safety  Appliance  Case,  190  U.  S.  1,  25  Sup. 
Ct.  158,  49  L.  Ed.  303,  and  the  Second  Em- 
ployers' Liability  Cases,  223  U.  S.  1,  32  Sup. 
Ct  109,  50  L.  Ed.  327,  38  L.  R.  A.  (N.  S.) 
44.  In  cases  where  the  United  States  is 
not  a  party,  but  is  substantially  interested, 
it  is  the  practice  to  ask  leave  to  intervene,  or 
to  be  heard  as  amicus  curiw,  or  he  is  heard 
by  leave  of  court 

In  the  Reading  Receivership  (U.  S.  C.  C. 
E.  D.  of  Pa.,  1893,  Dallas,  C.  J.)  certain 
Union  employees  petitioned  the  Court  for 
an  order  restraining  the  receivers  from  dis- 
charging the  petitioners  unless  they  would 
dissolve  their  connections  with  their  Union. 
The  Attorney  General,  Mr.  Olney,  sent  the 
Court  an  argument  on  behalf  of  the  petition- 
ers. The  Court  said  at  bar  that,  if  counsel 
for  the  petitioners  saw  proper  to  offer  it  as 
part  of  their  argument,  it  would  be  re- 
ceived. Opposing  counsel  did  not  object  to  it 
if  so  offered. 

Where  the  question  of  the  constitutionality 
of  the  Employers'  Liability  Act  of  1900  was 
involved  the  court  permitted  an  Assistant 
Attorney   General   to   intervene   and   to    be 


AMICUS  CURIAE 


189 


AMN, 


heard,  though  considering  that  such  a  prac- 
tice in  a  litigation  strictly  inter  partes  with 
which  the  United  States  had  no  concern, 
ought  not  to  be  encouraged,  in  the  absence 
of  any  statute  or  law  authorizing  or  direct- 
ing the  Attorney  General  to  support  by 
argument  in  the  courts  generally  the  legis- 
lation of  Congress  where  the  United  States 
is  not  a  party  nor  its  interests  involved  in 
any  tangible  way;  Brooks  v.  Southern  Pac. 
Co.,  148  Fed.  986. 

In  Mason  v.  Ry.,  197  Mass.  349,  83  X.  B. 
871 ;,  10  L  R.  A.  (N.  S.)  27(3,  125  Am.  St. 
Rep.  371,  14  Ann.  Cas.  574,  on  motion  of  a 
member  of  the  bar  suggesting  that  the  action 
be  dismissed  as  being  virtually  brought 
against  the  King  of  England,  accompanied  by 
an  affidavit  establishing  that  fact,  it  was 
held  that  the  action  could  not  be  maintained. 
There  was  no  appearance  for  defendant. 

AMITA  (Lat).  An  aunt  on  the  father's 
side. 

Amita  magna.  A  great-aunt  on  the  fa- 
ther's side. 

Amita  major.  A  great-great-aunt  on  the 
father's  side. 

Amita  maxima.  A  great-great-great- 
aunt,  or  a  great-great-grandfather's  sister. 
Calvinus,  Lex. 

A  Ml  TIN  US.  The  child  of  a  brother  or 
sister ;  a  cousin ;  one  who  has  the  same 
grandfather,  but  different  father  and  mo- 
ther.    Calvinus,  Lex. 

AMITTERE  CURIAM  (Lat.  to  lose  court). 
To  be  excluded  from  the  right  to  attend 
court.     Stat.  Westm.  2,  c.  44. 

AMITTERE  LIBERAM  LEGEM.  To  lose 
the  privilege  of  giving  evidence  under  oath 
in  any  court ;  to  become  infamous,  and  in- 
capable of  giving  evidence.     Glanville  2. 

If  either  party  in  a  wager  of  battle  cried 
"craven"  he  was  condemned  amittere  liber- 
am  legem;  3  Bla.  Com.  340. 

AMNESTY.  An  act  of  oblivion  of  past  of- 
fences, granted  by  the  government  to  those 
who  have  been  guilty  of  any  neglect  or 
crime,  usually  upon  condition  that  they  re- 
turn to  their  duty  within  a  certain  period. 

Express  amnesty  is  one  granted  in  direct 
terms. 

Implied  amnesty  is  one  which  results 
when  a  treaty  of  peace  is  made  between  con- 
tending parties.     Vattel,  1,  4,  c.  2,  §  20. 

Amnesty  and  pardon  are  very  different.  The 
former  is  an  act  of  the  sovereign  power,  the  object 
of  which  is  to  efface  and  to  cause  to  be  forgotten  a 
crime  or  misdemeanor  ;  the  latter  is  an  act  of  the 
same  authority,  which  exempts  the  individual  on 
whom  it  is  bestowed  from  the  punishment  the  law 
inflicts  for  the  crime  he  has  committed  ;  U.  S.  v. 
Wilson,  7  Pet.  (U.  S.)  1G0,  8  L.  Ed.  640.  Amnesty 
is  the  abolition  and  forgetfulness  of  the  offence; 
pardon  is  forgiveness.  A  pardon  Is  given  to  one 
who  is  certainly  guilty,  or  has  been  convicted;  am- 
nesty, to  those  who  may  have  been  so ;  State  v. 
Blalock,    61    N".    C.   242. 

Their  effects  are  also  different.  That  of  pardon  Is 
the  remission  of  the  whole  or  a  part  of  the  punish- 


ment awarded  by  the  law,— the  conviction  remaiu 
ing  unaffected  when  only  a  partial  pardon  is  grant- 
ed; an  amnesty,  on  the  contrary,  has  the  el 
destroying  the  criminal  act,  so  that  it  is  as  If  it  had 
not  been  committed,  as  far  as  the  public  interests 
are  concciw 

Their  application  also  differs.  Pardon  is  always 
given  to  individuals,  and  properly  only  after  judg- 
ment or  conviction  ;  amnesty  may  be  granted  either 
before  judgment  or  afterwards,  and  it  is  in  general 
given  to  whole  classes  of  criminals,  or  BU] 
criminals,  for  the  purpose  of  restoring  tranquility 
in  the  state.  But  sometimes  amnesties  are  limited, 
and  certain  classes  are  excluded  from  their  opera- 
tion. 

The  term  amnesty  belongs  to  international  law, 
and  is  applied  to  rebellions  which,  by  their  magni- 
tude, are  brought  within  the  rules  of  international 
law,  but  has  no  technical  meaning  in  the  common 
law,  but  is  a  synonym  of  oblivion,  which,  in  the 
English  law,  is  the  synonym  of  pardon;  Knote  v. 
U.   S.,   10  Ct.    CI.   397. 

The  distinction  here  taken  between  pardon  and 
amnesty  was  formerly  drawn  rather  in  a  philosoph- 
ical than  legal  sense,  and  it  doubtless  has  its  origin 
in  the  civil  law.  It  is,  however,  not  recognized  in 
American  law,  and  it  is  thus  referred  to:  "Some 
distinction  has  been  made,  or  attempted  to  be  made, 
between  pardon  and  amnesty.  •  •  •  This  dis- 
tinction is  not,  however,  recognized  in  our  law. 
The  constitution  does  not  use  the  word  'amnesty'; 
and,  except  that  the  term  is  generally  employed 
where  pardon  is  extended  to  whole  classes  or  com- 
munities instead  of  individuals,  the  distinction  be- 
tween them  is  one  rather  of  philological  interest 
than  of  legal  importance."  Knote  v.  U.  S.,  95  U. 
S.  149,  24  L.  Ed.  442.  Amnesty,  therefore,  may  be 
rather  characterized  as  a  general  pardon  granted 
to  a  class  of  persons  by  law  or  proclamation.  The 
act  in  such  case  is  as  properly  a  pardon  as  if 
simply  granted  to  an  individual.  Indeed,  it  seems 
to  be  generally  conceded  in  the  United  States  that 
the  word  "pardon"  includes  the  word  "amnesty"; 
Davies  v.  McKeeby,   5   Nev.  369,  373. 

As  to  the  amnesty  proclamation  of  29th 
May,  1865,  see  Hamilton's  Case,  7  Ct.  CL 
444. 

The  general  amnesty  granted  by  Presi- 
dent Johnson  on  Dec.  25,  1S68,  did  not  en- 
title one  receiving  its  benefits  to  the  pro- 
ceeds of  his  property  previously  condemned 
and  sold  under  the  act  of  17th  July,  1S62,  the 
proceeds  having  been  paid  into  the  treasury  ; 
Knote  v.  U.  S.,  95  U.  S.  149,  24  L.  Ed.  41:'. 
As  to  amnesty  in  cases  arising  out  of  the 
War  of  Secession,  see  Armstrong's  Foundry, 
G  Wall.  (U.  S.)  766,  IS  L.  Ed.  882;  Ex  parte 
Garland,  4  Wall.  (U.  S.)  333,  IS  L.  Ed.  366  :  V. 
S.  v.  Klein,  13  Wall.  (U.  S.)  12S,  20  L.  Ed.  519  ; 
Armstrong  v.  U.  S.,  13  Wall.  (U.  §.)  154.  20  L. 
Ed.  (114;  Carlisle  v.  U.  S.,  16  Wall.  (1  .  S.) 
147,  21  L.  Ed.  426;  Witkowski's  Case,  7  Ct. 
CI.  398;  Haym's  Case,  7  Ct.  CI.  443;  War- 
lag's  Case,  7  Ct.  CI.  501;  Meldrims  l 
7  Ct.   CI.  595;    Scott's   Case,   8  Ct.  CI.    457. 

As  to  the  power  of  the  president  to  grant 
a  general  amnesty,  and  whether  there  is  any 
legislative  power  to  grant  pardon  and  amnes- 
ty, see  Executive  Power;  Pardon;  Consti- 
tution of  the  United  States  ;  34  L.  R.  A. 
251,  note. 

AMONG.  Mingled  with  or  in  the  same 
group  or  class. 

As  used  in  the  commercial  clause  of  the 
federal   constitution   C  J.   Marshall   defines 


AMONG 


100 


AMOTION 


it  as  "intermingled  with";  Gibbons  v.  Og- 
den,  9  Wheat.  (U.  S.)  1,  194,  0  L.  Ed.  28; 
una  it  is  sometimes  held  to  be  equivalent 
to  between;  Hick's  Estate,  134  Pa.  507,  19 
Atl.  703;  Records  v.  Fields,  155  Mo.  314. 
55  S.  W.  1021;  Senger  v.  Sender's  Ex'r,  81 
Va.  6S7. 

AMORTISE.     To  alien  lands  in  mortmain. 

AMORTISSEMENT  (Fr.).  The  redemp- 
tion of  a  debt  by  a  sinking  fund. 

AMORTIZATION.  An  alienation  of  hinds 
or  tenements  in  mortmain. 

It  is  used  colloquially  in  reference  to  pay- 
ing off  a  mortgage  or  other  debt  by  install- 
ments, or  by  a  sinking  fund. 

AMOTION    (Lat.  amovere,   to  remove;  to 

lake  away). 

An  unlawful  taking  of  personal  chattels 
out  of  the  possession  of  the  owner,  or  of 
one  who  has  a  special  authority  in  them. 

A  turning  out  of  the  proprietor  of  an  es- 
tate in  realty  before  the  termination  of  his 
estate.    3  Bla.  Com.  198.     See  Ouster. 

In  Corporations.  A  removal  of  an  official 
agent,  of  a  corporation  from  the  station  as- 
signed to  him,  before  the  expiration  of  the 
term  for  which  he  was  appointed.  8  Term 
356 ;  1  East  562  ;  Fuller  v.  Trustees,  6  Conn. 
532;  Dill.  Mun.  Corp.   (4th  ed.)    §  238. 

The  term  is  distinguished  from  disfranchisement, 
which  deprives  a  me?nber  of  a  public  corporation  of 
all  rights  as  a  corporator;  while  amotion  applies 
only  to  officers  ;  Richards  v.  Clarksburg,  30  W.  Va. 
491,  4  S.  E.  774 ;  White  v.  Brownell,  4  Abb.  Pr. 
N.  S.  (N.  Y.)  162,  192.  In  Bagg's  Case,  recognized 
as  a  leading  one,  the  distinction  between  amotion 
and  disfranchisement  was  not  quite  clearly  noted; 
11  Co.  93  ;  and  see  the  observations  upon  it  in  Wil- 
cock,  Mun.  Corp.  270.  See  24  Cent.  L.  J.  99,  as  to 
the  difference  between  amotion  and  disfranchise- 
ment. 

Expulsion  is  the  usual  phrase  in  reference  to  loss 
of  membership  of  private  corporations.  The  term 
seems  in  strictness  not  to  apply  properly  to  cases 
where  officers  are  appointed  merely  during  the  will 
of  the  corporation,  and  are  superseded  by  the  choice 
of  a  successor,  but,  as  commonly  used,  includes  such 
cases. 

See  Disfranchisement  ;  Expulsion  ;  As- 
sociation. 

The  right  of  amotion  of  an  officer  for  just 
cause  is  a  ''common-law  incident  of  all  cor- 
porations ;  i  Burr.  517 ;  2  Kent  297 ;  1  Dill. 
Mun.  Corp.  (4th  ed.)  §  251;  Richards  v. 
Clarksburg,  30  W.  Va.  491,  4  S.  E.  774; 
State  v.  Judges,  35  La.  Ann.  1075;  and 
the  power  is  inherent;  Fawcett  v.  Charles, 
13  Wend.  (N.  Y.)  473 ;  Evans  v.  Philadelphia 
Club,  50  Ta.  107,  127;  T.  Raym.  435;  Burrs 
Ex'r  v.  McDonald,  3  Graft.  (Va.)  215  (and 
see  2  Ld.  Raym.  1564,  wThere  the  contrary 
was  asserted,  though  it  may  be  considered 
settled  as  above  stated) ;  and  in  case  of 
mere  ministerial  officers  appointed  durante 
bene  placito,  at  the  mere  pleasure  of  those 
appointing  him,  without  notice:  Primm  v. 
City     of    Carondelet,    23     Mo.    22;      see    1 


Ventr.  77;  2  Show.  70 ;  11  Mod.  403 ;  Field 
v.  Field,  0  Wend.  (N.  Y.)  394;  O'Dowd  v. 
City  of  Boston,  149  Mass.  443,  21  N.  E.  949. 
Power  to  remove  is  necessarily  incidental  to 
the  power  of  appointment  and  the  trustees 
may  remove  without  assigning  any  specific 
cause  whenever  it  is  in  their  judgment  in 
the  interest  of  the  corporation;  People  v. 
Higgins,  15  111.  110.  Notice  and  an  oppor- 
tunity to  be  heard  are  requisite  where  the 
appointment  is  during  good  behavior,  or  the 
removal  is  for  a  specified  cause;  Field  v. 
Com.,  32  Pa.  478;  Page  v.  Hardin,  8  B. 
Monr.  (Ky.)  648;  City  of  Hoboken  v.  Gear, 
27  N.  J.  L.  265;  City  of  Madison  v.  Korbly. 
32  Ind.  74;  Stadler  v.  City  of  Detroit,  13 
Mich.  346 ;    10  H.  L.  Cas.  404. 

Before  amotion  the  officer  is  entitled  to 
notice  of  hearing,  an  accusation  to  be  an- 
swered, reasonable  time  for  answer,  repre- 
sentation by  counsel  and  an  adjudication 
after  hearing ;  Murdock  v.  Trustees,  12  Pick. 
(Mass.)  244.  Mere  acts,  which  are  a  cause 
for  amotion,  do  not  create  a  vacancy  till  the 
amotion  takes  place;  State  v.  Trustees,  5 
Ind.  77;  Murdock  v.  Trustees,  12  Pick. 
(Mass.)  244. 

Directors  themselves  have  no  implied  pow- 
er to  remove  one  of  their  own  number  from 
office  even  for  cause;  nor  to  exclude  him 
from  taking  part  in  their  proceedings ;  Com. 
v.  Detwiller,  131  Pa.  614,  18  Atl.  990,  992,  7 
L.  R.  A.  357.  In  the  absence  of  a  statute 
authorizing  amotion  by  the  directors  of  one 
of  their  number,  the  power  can  only  be  ex- 
ercised by  the  stockholders;  Scott  v.  De-  • 
troit  Young  Men's  Society's  Lessee,  1  Dougl. 
(Mich.)  149 ;  Fuller  v.  Trustees,  6  Conn.  532 ; 
and  see  Com.  v.  Detwiller,  131  Pa.  614,  18 
Atl.  9»0,  992,  7  L.  R.  A.  357,  360;  State  v. 
Trustees,  5  Ind.  77. 

The  causes  for  amotion  are  said  by  Lord 
Mansfield  (1  Burr.  53S)  to  be:— "first,  such 
as  have  no  immediate  relation  to  the  office, 
but  are  in  themselves  of  so  infamous  a 
nature  as  to  render  the  offender  unfit  to 
execute  any  public  franchise  (but  indict- 
ment and  conviction  must  precede  amotion 
for  such  causes,  except  where  he  has  left 
the  country  before  conviction ;  1  B.  &  Ad. 
936) ;  second,  such  as  are  only  against  his 
oath  and  the  duty  of  his  office  as  a  corpo- 
rator, and  amount  to  breaches  of  the  tacit 
condition  annexed  to  his  office;  third,  such 
as  are  offences  not  only  against  the  duty  of 
his  office,  but  also  matter  indictable  at 
common  law."  See  Com.  v.  Society,  2  Binn. 
(Pa.)  448,  4  Am.  Dec.  453;  Evans  v.  Phila- 
delphia Club,  50  Pa.  107 ;    11  Mod.  379. 

Sufficient  grounds  of  removal:  Poverty 
and  inability  to  pay  taxes;  3  Salk.  229; 
total  desertion  of  duty;  Bull.  N.  P.  206;  1 
Burr.  541 ;  as  to  neglect  of  duty,  see  1  B. 
&  Ad.  936;  4  Burr.  2004;  2  Stra.  819;  1 
Vent.  146;  habitual  drunkenness;  3  Salk. 
231;    3    Bulst    190;     official   misconduct   in 


AMOTION 


191 


AMPARO 


the  office ;  4  Burr.  1990 ;  habitual  but  not 
mere  casual  non-attendance ;  Murdock  v. 
Trustees,  12  Tick.  (Mass.)  244;  Fuller  v. 
Trustees,  6  Conn.  532. 

Insufficient  grounds  of  removal:  Bank- 
ruptcy; 2  Burr.  723;  Atlas  Nat  Bank  v. 
Gardner,  8  Biss.  .".::t.  Fed.  Cas.  No.  635;ca«- 
vtii  intoxication;  3  Sails.  2"l ;  l  Rolle  409; 
old  age;  2  Rolle  11;  threats,  insulting  lan- 
guage, or  libel  upon  the  mayor  or  officers; 
11  Coke  93;   1  C.  &  P.  257;  10  Ad.  &  E.  374. 

The  K.  B.  in  England  will  see  that  a  right 
of   amotion    of    an    officer   is    lawfully 
cised;   but  it  will  not  control  the  discretion 
of  the  corporation,  if  so  exercised;    L.  R.  5 
H.  L.  636. 

AMOUNT  IN  CONTROVERSY.  See  Ju- 
risdiction. 

AMOUNT  COVERED.  The  amount  that 
is  insured,  and  for  which  underwriters  are 
liable  for  loss   under  a  policy  of  insurance. 

It  is  limited  by  that  specified  in  the  policy 
to  be  insured,  and  this  limit  may  be  applied 
to  an  identical  subject  only,  as  a  ship,  a 
building,  or  a  life;  or  to  successive  subjects, 
as  successive  cargoes  on  the  same  ship,  or 
successive  parcels  of  goods  transmitl 
a  certain  canal  or  railroad  duriug  a  speci- 
fied period  :  and  it.  may  also  be  limited  by 
the  terms  of  the  contract  to  a  certain  pro- 
portion, as  a  quarter,  half,  etc.,  of  the  value 
of  the  subject  or  interest  on  which  the  in- 
surance is  made;  Jackson  v.  Ins.  Co.,  16 
B.  Monr.  (Ky.)  242;  Estabrook  v.  Smith,  (i 
Gray  (Mass.)  574,  G6  Am.  Dec.  443;  Louisiana 
Mut.  Ins.  Co.  v.  Ins.  Co.,  13  La.  Ann.  24G ; 
Cushman  v.  Ins.  Co.,  34  Me.  4S7 ;  39  Eng. 
L.  &  Eq.  228. 

AMOUNT  OF  LOSS.  The  diminution,  de- 
s'truction,  or  defeat  of  the  value  of,  or  of 
the  charge  upou,  the  insured  subject  to  the 
assured,  by  the  direct  consequence  of  the 
operation  of  the  risk  insured  against,  ac- 
cording to  its  value  in  the  policy,  or  in  con- 
tribution for  loss,  so  far  as  its  value  is  cov- 
ered by  the  insurance.  2  Phill.  Ins.  c.  xv., 
xvi.,  xvii. ;  Forbes  v.  Ins.  Co.,  1  Gray, 
(Mass.)  371 ;  Crombie  v.  Portsmouth  Ins. 
Co.,  26  N.  H.  389;  Flanagan  v.  Ins.  Co.,  25 
N.  J.  L.  506;  Cincinnati  v.  Duffield,  6  Ohio 
St.  200,  67  Am.  Dec.  339 :  Eddy  St.  Foundry  v. 
Ins.  Co.,  5  R.  I.  426;  Merchants'  Mut.  Ins. 
Co.  v.  Wilson,  2  Md.  217;  7  Ell.  &  B.  172. 
See  Loss. 

AM0VEAS  MANUS  (Lat.  that  you  remove 
your  hands).  After  office  found,  the  king 
was  entitled  to  the  things  forfeited,  either 
lands  or  personal  property;  the  remedy  for 
a  person  aggrieved  was  by  "petition,"  or 
"monstrous  <lc  droit,"  or  "trarcrses,"  to  es- 
tablish his  superior  right.  Thereupon  a  writ 
issued,  quod  manus  domini  regis  amovean- 
tur;   3  Bla.  Com.  2G0. 

AMPARO    (Span.).     A    document   protect- 


ing  the  claimant  of  land    till  properly  au- 
thorized  papers  can  be  Issued.     Trim 
Smithers'  Adm'r,  l  Tex. 

AMPLIATION.     In     Civil     Law.     A 

of  judgment  until  the  cause  is  further 
examined. 

In    this    case,    the    Judges    pronounced    the    word 
amplius,   or    by   writing    the    letters    N.    L.    i 
[g.    v.),    signifying    that    the    cause   \s .. 
It   is  very  similar  to  the  common-law 
tlce  of  entering  cur.  adv.  vult  in  similar  cases. 

In  French  Law.  A  duplicate  of  au  acquit- 
tance or  other  instrument. 

A  Qotary's  copy  of  acts  passed  before  him 
delivered  to  the  parties. 

AMUSEMENT.  Pastime;  diversion;  en- 
joyment. See  Kxtiuiai.nmext;  PLACE  of 
Amusement;   Theatre. 

AMY  (Fr.).  Friend.  See  Prociii.in  Amy; 
Next  Friend. 

AN,  JOUR  ET  WASTE.  Year,  day  and 
waste.     See  that  title. 

ANALOGY.  The  similitude  of  relation-; 
which  exist  between  things  compared.  See 
Smith  v.  State,  63  Ala.  58. 

Analogy  has  been  declared  to  be  an  argu- 
ment or  guide  in  forming  legal  judgments, 
and  is  very  commonly  a  ground  of  such  judg- 
ments; 3  Bingh.  265;  4  Burr.  1962,  2022, 
2068;  6  Ves.  675;  3  Swanst  561;  3  P. 
Will.  391;   3  Bro.  C.  C.  639,  n. 

ANALYTICAL  JURISPRUDENCE.  A  the- 
ory and  system  of  jurisprudence  wrought 
out  neither  by  inquiring  for  ethical  prin- 
ciples or  the  dictates  of  the  sentiments  of 
justice  nor  by  the  rules  which  may  be  ac- 
tually in  force,  but  by  analyzing,  classifying 
and  comparing  various  legal  conceptions. 

See  Jurisprudence. 

ANARCHY.  The  absence  of  all  political 
government;  by  extension,  Coufusiou  in  gov- 
ernment. 

The  absence  of  government ;  a  state  of  so- 
ciety where  there  is  no  law  or  supreme  pow- 
er. Spies  v.  People,  122  111.  253,  12  N.  E. 
865,  17  N.  E.  89S,  3  Am.  St.  Hep. 

A  social  theory  which  regards  the  union 
of  order  with  the  absence  of  all  direct  gov- 
ernment of  man  by  man  as  the  political 
ideal;  absolute  individual  liberty.  Cent 
Diet. 

Taken  in  its  proper  sense,  the  word  has 
nothing  to  do  with  disorder  or  crime,  but  in 
•the  Act*  of  Congress  of  March  .:.  1903,  the 
word  '•anarchists"  is  used  synonymously 
with  "persons  who  believe  in  or  advocate  the 
overthrow  by  force  or  violence  of  the 
ernment  of  the  United  States  or  of  all  govern- 
ment or  of  all  forms  of  law  or  the  assassina- 
tion of  public  officials,"  and  this  would 
to  be  the  popular  sense  attaching  to  the 
word.  In  the  address  of  U.  M.  Rose,  Presi- 
dent of    the   American   Bar  "Association    in 


ANARCHY 


192 


ANCESTRAL 


1902,  criminal  anarchy  is  defined  as  the  doc- 
trine that  organized  government  should  be 
overthrown  by  force  and  violence,  or  by  as- 
sassination of  the  executive  head  or  of  any 
of  the  executive  officials  of  the  government, 
by  any  unlawful  means.  15  Rep.  Am.  Bar 
Assn.  210. 

In  U.  S.  v.  Williams,  194  U.  S.  294,  24  Sup. 
Ct.  719,  48  L.  Ed.  979,  it  was  held  that 
oven  though  an  alien  anarchist  only  regard- 
ed the  absence  of  government  as  a  political 
ideal,  yet  when  he  sought  to  attain  it  by  ad- 
vocating a  universal  strike  and  discoursing 
upon  "the  legal  murder  of  1SS7"  (Spies  v. 
People,  122  111.  1,  12  N.  E.  SG5,  17  N.  E.  898, 
3  Am.  St.  Rep.  320)  there  was  a  justifiable 
inference  that  he  contemplated  the  ultimate 
realization  of  his  ideal  by  the  use  of  force, 
or  that  his  speeches  were  incitements  to  that 
end.  And  further,  that  even  if  "anarchists" 
should  be  interpreted  to  mean  political 
philosophers  innocent  of  evil  intent,  yet  the 
tendency  of  the  general  exploitation  of  such 
views  is  so  dangerous  to  the  public  weal  that 
aliens  who  hold  and  advocate  them  would 
be  undesirable  additions  to  the  population 
and  their  exclusion  infringes  none  of  the 
constitutional  guaranties  respecting  freedom 
of  speech,  etc.     See  Alien. 

ANATHEMA.  A  punishment  by  which  a 
person  is  separated  from  the  body  of  the 
church,  and  forbidden  all  intercourse  with 
the  faithful. 

It  differs  from  excommunication,  which  simply 
forbids  the  person  excommunicated  from  going  into 
the  church  and  taking  the  communion  with  the 
faithful. 

ANATOCISM.  In  Civil  Law.  Taking  in- 
terest on  interest;  receiving  compound  in- 
terest, 

ANCESTOR.  One  who  has  preceded  an- 
other in  a  direct  line  of  descent ;  an  ascend- 
ant. 

A  former  possessor ;  the  person  last  seised. 
Termes  de  la  Ley ;    2  Bla.  Com.  201. 

In  the  common  law,  the  word  is  understood  as 
well  of  the  immediate  parents  as  of  those  that  are 
higher  ;  as  may  appear  by  the  statute  25  Edw.  III., 
De  natis  ultra  mare,  and  by  the  statute  6  Ric.  II. 
c.  6,  and  by  many  others.  But  the  civilians'  rela- 
tions in  the  ascending  line,  up  to  the  great-grand- 
father's parents,  and  those  above  them,  they  term 
majores,  which  common  lawyers  aptly  expound  ante- 
cessors or  ancestors,  for  in  the  descendants  of  like 
degree  they  are  called  poster  lor  es ;  Cary,  Litt.  45. 
The  term  ancestor  is  applied  to  natural  persons. 
The  words  predecessors  and  successors  are  used  in 
respect  to  the  persons  composing  a  body  corporate. 
See  2  Bla.  Com.  209 ;  Bacon,  Abr. ;  Ayliffe,  Pand. 
58. 

It  designates  the  ascendants  of  one  in  the  right 
line,  as  father  and  mother,  grandfather  and  grand- 
mother, and  does  not  include  collateral  relatives  as 
brothers  and  sisters ;  Valentine  v.  Wetherill,  31 
Barb.   (N.  Y.)  659. 

ANCESTRAL.  What  relates  to  or  has 
been  done  by  one's  ancestors;  as  homage  an- 
cestral (see  Homage)  and  the  like. 

That  which  belonged  to  one's  ancestors. 


Ancestral  estates  are  such  as  come  to  the 
possessor  by  descent.  3  Washb.  R.  P.  (5th 
Ed.)  411,  412. 

ANCESTRAL  ACTIONS.     See  Abatement. 

ANCHOR.  A  measure  containing  ten  gal- 
lons. 

The  instrument  used  by  which  a  vessel  or 
other  body  is  held.  See  The  Lady  Franklin, 
2  Low.  220,  Fed.  Cas.  No.  7,9S4 ;  Walsh  v. 
Dock  Co.,  77  N.  Y.  448;  Reid  v.  Ins.  Co., 
19  Hun  (N.  Y.)  284. 

An  Anchor  Watch  is  one  kept  by  a  reduc- 
ed number  of  men  on  a  vessel  in  port  or  at 
anchor;  The  Lady  Franklin,  2  Low.  220, 
Fed.  Cas.  No.  7,9S4;  it  may  consist  of  one 
man  on  deck;  The  Rival,  1  Sprague  128, 
Fed.  Cas.  No.  11,867. 

ANCHORAGE.  A  toll  paid  for  every 
anchor  cast  from  a  ship  in  a  port. 

Such  a  toll  is  said  to  be  incident  to  almost 
every  port;  1  W.  Bla.  413;  4  Term  260; 
and  is  sometimes  payable  though  no  anchor 
is  cast;   2  Chit.  Com.  Law  16. 

ANCIENT  DEEDS.  See  Ancient  Whit- 
ings. 

ANCIENT  DEMESNE.  Manors  which  in 
the  time  of  William  the  Conqueror  were  in 
the  hands  of  the  crown  and  are  so  recorded 
in  the  Domesday  Book.  Fitzh.  Nat.  Brev. 
14,  56. 

Tenure  in  ancient  desmesne  may  be  plead- 
ed in  abatement  to  an  action  of  ejectment; 
2  Burr.  1046. 

Tenants  of  this  class  had  many  privileges ; 
2  Bla.  Com.  99. 

ANCIENT  DOCUMENTS.  See  Ancient 
Writings. 

ANCIENT  HOUSE.  One  which  has  stood 
long  enough  to  acquire  an  easement  of  sup- 
port. 3  Kent  437 ;  2  Washb.  R.  P.  (5th  ed.) 
*74,  *76.     See  Easement  ;   Lateral  Support. 

ANCIENT  LIGHTS.  Windows  or  open- 
ings which  have  remained  in  the  same  place 
and  condition  twenty  years  or  more.  Wright 
v.  Freeman,  5  Harr.  &  J.  (Md.)  477;  Story 
v.  Odin,  12  Mass.  157,  7  Am.  Dec.  46 ;  Thurs- 
ton v.  Hancock,  12  Mass.  220,  7  Am.  Dec.  57. 

In  England,  a  right  to  unobstructed  light 
and  air  through  such  openings  is  secured  by 
mere  user  for  that  length  of  time  under  the 
same  title. 

Until  the  last  forty  years  there  was  no 
right  of  action  merely  because  there  was 
less  light  than  formerly,  but  only  where 
material  inconvenience  was  caused  in  ordi- 
nary occupations;  1  Dick.  163;  2  C.  &  P. 
465;  5  id.  438.  This  rule  was  followed  in 
L.  R.  4  Eq.  421 ;  [1897]  2  Ch.  214 ;  Ir.  Rep. 
11  Eq.  541.  It  is  held  that  one  is  entitled  to 
as  much  light  as  his  building  may  ordinarily 
require  for  habitation  or  business;  [1900] 
2  K.  B.  722.  In  L.  R.  [1904]  A.  C.  179,  it  is 
said:    "To  constitute  actionable  deprivation 


ANCIENT  LIGHTS 


193 


ANCIENT  LIGHTS 


of  light,  it  is  not  enough  that  there  be  less 
light  than  before;  there  must  be  a  sub- 
stantial deprivation  of  light, — enough  to  ren- 
der occupation  uncomfortable  according  to 
ordinary  notions  of  mankind."  This  has 
been  said  to  be  the  leading  case ;  23  L.  Q.  R. 
254.  In  [1902]  1  K.  B.  15,  the  plaintiffs  had 
an  easement  of  light  and  needed  an  extraor- 
dinary amount  in  their  business;  a  newly 
erected  building  cut  off  a  substantial  amount 
of  it,  but  enough  was  left  for  all  ordinary 
purposes  of  habitation  or  business ;  it  was 
held  they  were  entitled  to  relief.  This  case 
was  approved  ;  L.  R.  6  Ch.  809 ;  and  disap- 
proved ;  L.  R.  4  Eq.  21;  28  L.  T.  186.  In 
[1907]  A.  C.  1,  there  had  been  a  large  ob- 
struction of  light  by  the  erection  of  the  de- 
fendant's house,  and  a  large  interference 
with  the  cheerfulness  of  a  room  in  the  plain- 
tiff's house,  so  that  the  character  of  such 
room  had  been  altered,  and  it  had  lost  oue 
of  its  chief  advantages,  causing  a  substantial 
depreciation  in  the  rental  value.  It  was 
held  that  an  actionable  nuisance  had  been 
committed.  It  is  said  the  decision  of  the 
House  of  Lords  in  [1904]  A.  C.  179,  has  left 
the  obstruction  of  ancient  lights  still,  as  it 
always  has  been,  a  question  of  nuisance  or 
no  nuisance,  but  has  readjusted  the  law  in 
respect  to  the  test  of  nuisance,  and  that  the 
test  now  is,  not  how  much  light  has  been 
taken,  and  whether  that  is  enough  material- 
ly to  lessen  the  enjoyment  and  use  of  the 
house  which  the  owner  previously  had,  but 
how  much  light  is  left,  and  whether  that  is 
enough  for  the  comfortable  use  and  enjoy- 
ment of  the  house  according  to  the  ordinary 
requirements  of  mankind;  74  L.  J.  Ch.  621; 
[1905]  2  Ch.  210. 

In  the  United  States,  such  right  is  not  ac- 
quired without  an  express  grant,  in  most 
of  the  states;  2  Washb.  R.  P.  (5th  ed.)  62, 
63;  3  Kent  446,  n.  See  Cherry  v.  Stein, 
11  Md.  1 ;  Hulley  v.  Safe  Deposit  Co.,  5  Del. 
Ch.  578 ;  Parker  v.  Foote,  19  Wend.  (N.  Y.) 
309;  Ward  v.  Neal,  37  Ala.  501;  Pierre  v. 
Fernald,  26  Me.  436,  46  Am.  Dec.  573  :  Keats 
v.  Hugo,  115  Mass.  204,  15  Am.  Rep.  80; 
and  cases  under  Air.  This  same  doctrine 
has  been  upheld  in  Illinois  and  Louisiana  ; 
Gerber  v.  Grabel,  16  111.  217 ;  Taylor  v.  Boul- 
ware,  35  La.  Ann.  469.  It  is  said  not  to  be 
suited  to  the  conditions  of  a  growing  coun- 
try and  that  it  never  became  part  of  our 
common  law;  Myers  v.  Gemmel,  10  Barb. 
(N.  Y.)  537.  Other  courts  decline  to  adopt 
the  English  doctrine;  Keats  v.  Hugo,  115 
Mass.  204,  15  Am.  Rep.  80;  Randall  v.  San- 
derson, 111  Mass.  119;  Hoy  v.  Sterrett,  2 
Watts  (Pa.)  327,  27  Am.  Dec.  313 ;  Doyle  v. 
Lord,  64  N.  Y.  439,  21  Am.  Rep.  629;  Powell 
v.  Sims,  5  W.  Va.  1,  13  Am.  Rep.  629;  In- 
graham  v.  Hutchinson,  2  Conn.  597 ;  Gerber 
v.  Grabel,  16  111.  217 ;  and  even  where  it  is 
accepted,  its  application  should  be  limited 
to  cases  where  the  easement  is  strictly  nec- 
Bouv.— 13 


essary  to  the  beneficial  user  of  the  property 
granted;    Turner  v.  Thompson,  58  Gi 
24  Am.  Rep.  497  ;    15  Harv.  L.  Rev.  305. 

One  who  claims  that  the  land  adjoining 
his  shall  remain  unimproved  should  show 
an  express  grant  or  covenant;  Morrison  v. 
Marquardt,  24  la.  35,  92  Am.  Dec.  444.  There 
can  be  no  such  easement  by  implication  over 
adjoining  unimproved  land  of  the  grantor; 
id. ;  Stein  v.  Hauck,  56  Ind.  68,  26  Am.  Rep. 
10;  Keating  v.  Springer,  140  111.  481,  34  N. 
E.  805,  22  L.  R.  A.  544,  37  Am.  St.  Rep.  175  ; 
Mullen  v.  Strieker,  19  Ohio  St.  135,  2  Am. 
Rep.  379;  Rennyson's  Appeal,  94  Pa.  147. 
39  Am.  Rep.  777;  Wilmurt  v.  McGrane,  16 
App.  Div.  412,  45  N.  Y.  Supp.  32.  But  it 
has  been  held  that  a  grantee  of  land  has 
an  easement  of  light  by  implied  grant  over 
the  adjoining  unimproved  land  of  his  gran- 
tor; Sutphen  v.  Therkelson,  38  N.  J.  Eq. 
318;  Knoxville  Water  Co.  v.  Knoxville,  200 
U.  S.  25,  26  Sup.  Ct.  224,  50  L.  Ed.  353; 
Janes  v.  Jenkins.  34  Md.  1,  6  Am.  Rep.  300. 
In  15  L.  Q.  R.  317,  it  is  said  that  American 
courts,  in  declining  to  follow  the  English 
doctrine,  have  assumed  that  it  was  unknown 
prior  to  Independence.  It  was  so  said  by  Bron- 
son,  J.,  in  Parker  v.  Foote,  19  Wend.  (N.  Y.) 
309.  But  this  is  said  to  be  incorrect.  There 
is  a  dictum  of  Wray,  C.  J.,  in  Mosely  v.  Bland 
(1611),  cited  in  9  Ptop.  58  6..  and  a  reference 
to  it  as  an  established  doctrine  in  1443  Y. 
B.,  32  Hen.  VI.  f.  15,  and  in  4  Del.  Ch. 
643.  it  was  hold  that  the  doctrine  was  part 
of  the  common  law  of  England  and  of  the 
colonies  at  the  time  of  American  Independ- 
ence, and  as  such  continued  to  be  the  law 
of  Delaware  under  the  constitution  adopted 
in  1776.    See  Are. 

As  between  landlord  and  tenant  it  is  held 
that  a  lease  of  a  tenement  carries  with  it  an 
implied  grant  of  the  right  to  light  and  air 
from  the  adjoining  land  of  the  landlord 
where  the  situation  and  habitual  use  of  the 
demised  tenement  are  such  that  the  right 
is  essential  to  its  beneficial  enjoyment ; 
Darnell  v.  Show-Case  Co.,  129  Ca.  02.  58  S. 
E.  631,  13  L.  R.  A.  (N.  S.)  333.  121  Am.  St. 
Rep.  206;  Ware  v.  Chew,  43  N.  J.  Eq.  49.!. 
11  Atl.  746;  Case  v.  Minot.  158  Mass.  577, 
33  N.  E.  700,  22  L.  R.  A.  536  (where  the  ten- 
ant of  an  upper  floor  was  held  entitled  to 
light  and  air  from  a  well) ;  Doyle  v.  Lord, 
64  X.  Y.  432,  21  Am.  Rep.  629;  Hazlett  v. 
Powell,  30  Pa.  293;  contra,  Keating  v. 
Springer,  146  111.  484,  34  N.  E.  80.1,  22  L.  R. 
A.  544,  37  Am.  St.  Rep.  175 ;  Myers  v.  Gem- 
mel, 10  Barb.  (N.  Y.)  537. 

As  to  the  right  of  an  abutting  owner  to 
light  and  air  over  the  highway,  see  Are. 

ANCIENT  READINGS.  Essays  on  the 
early  English  statutes.     Co.  Litt.  280. 

ANCIENT  RECORDS.  See  Ancient 
Writings. 

ANCIENT    RENT.     The  rent  reserved  at 


ANCIENT  RENT 


194 


ANCIENT  WRITINGS 


the  time  the  lease  was  made,  if  the  build- 
ing was  not  then  under  lease.    2  Vera.  542. 

ANCIENT  WRITINGS.  Deeds,  wills,  and 
other  writings,  more  than  thirty  years  old. 

They  may,  in  general,  be  read  in  evidence 
without  any  other  proof  of  their  execution 
than  that  they  have  been  in  the  possession 
of  those  claiming  rights  under  them ;  1 
Greenl.  Ev.  §  141 ;  12  M.  &  W.  205 ;  8  Q.  B. 
158;  7  Beaf.  93;  Barr  v.  Gratz,  4  Wheat 
(U.  S.)  213,  4  L.  Ed.  553;  Lessee  of  Clarke  v. 
Courtney,  5  Pet.  (U.  S.)  319,  8  L.  Ed.  140; 
Winn  v.  Patterson,  9  Pet.  (U.  S.)  6G3,  9  L. 
Ed.  266;  Jackson  v.  Blanshan,  3  Johns.  (N. 
Y.)  292,  3  Am.  Dec.  485 ;  Middleton  v.  Mass, 
2  Nott  &  McC.  (S.  C.)  55;  Duncan  v.  Beard, 
id.  400;  Tolman  v.  Emerson,  4  Pick.  (Mass.) 
160;  Crane  v.  Marshall,  16  Me.  27,  33  Am. 
Dec.  631;  Dodge  v.  Briggs,  27  Fed.  170; 
O'Donnell  v.  Johns  &  Co.,  76  Tex.  362,  13  S. 
W.  376;  Pettingell  v.  Boynton,  139  Mass. 
244,  29  N.  E.  655;  McClaskey  v.  Barr,  47 
Fed.  154 ;  King  v.  Sears,  91  Ga.  577,  18  S.  E. 
830;  Whitman  v.  Heneberry,  73  111.  109.  As 
to  the  admission  of  duplicate  copies,  see  Na- 
tional Commercial  Bank  v.  Gray,  71  Hun  295, 
24  N.  Y.  Supp.  997.  See  Declaration;  Ev- 
idence. 

The  rule  is  broad  enough  to  admit  ancient 
deeds  purporting  to  have  been  signed  by  an 
agent  without  production  of  the  power  of 
attorney;  Wilson  v.  Snow,  228  U.  S.  217,  33 
Sup.   Ct  487,  57  D.  Ed.  . 

Spanish  documents  produced  to  and  in- 
spected by  the  court,  coming  from  official  cus- 
tody and  bearing  on  their  face  every  evi- 
dence of  age  and  authenticity,  and  otherwise 
entitled  to  admissibility  as  ancient  docu- 
ments, will  not  be  excluded  because  subjected 
to  various  changes  of  possession  during  the 
transition  of  the  government  of  Florida  from 
Spain  to  the  United  States  and  during  the 
Civil  War,  it  not  appearing  that  they  were 
ever  out  of  the  custody  of  a  proper  custodian, 
that  the  originals  were  lost,  or  that  there 
had  been  any  fraudulent  substitution ;  Mc- 
Guire  v.  Blount,  199  U.  S.  142,  26  Sup.  Ct 
1,  50  L.  Ed.  125. 

Ancient  documents  are  not  admissible  in 
evidence  as  "public  documents"  where  they 
were  not  intended  to  be  so,  but  to  serve  tem- 
porary purposes  only.  Also  where  the  rec- 
ords were  made  by  a  deceased  official,  there 
being  nothing  to  show  that  they  were  made 
contemporaneously  with  the  doing  of  some- 
thing which  it  was  the  duty  of  the  deceased 
official  to  record.  In  this  case  it  was  at- 
tempted to  prove  that  certain  land,  within 
legal  memory,  had  been  covered  by  the  sea. 
A  survey  made  in  1616  by  the  Lord  Warden 
of  the  Cinque  Ports  and  an  estimate  by  the 
King's  engineer  for  the  reparation  of  certain 
castles  were  rejected  for  the  above  reasons; 
[1905]  2  Ch.  538. 

Where  an  instrument  itself  would  be  ad- 
missible without  proof  of  execution,  being 
orer  thirty  years  old,  and  its  absence  is  sat- 


isfactorily accounted  for,  held  that  evidence 
of  its  contents  was  likewise  admissible  with- 
out proof  of  execution ;  Walker  v.  Peterson 
(Tex.)  33  S.  W.  269,  Dec.  18,  1S95. 

A  deed  signed  by  the  grantor  by  his  mark 
and  not  witnessed  or  acknowledged,  and 
therefore  insufficient  on  its  face,  is  inad- 
missible as  an  ancient  deed  without  proof 
of  execution ;  O'Neal  v.  Railroad  Co.,  140 
Ala.  378,  37  South.  275,  1  Ann.  Cas.  319.  As 
a  general  rule  in  the  case  of  ancient  writ- 
ings, proof  of  execution  is  not  necessary ; 
Fulkerson  v.  Holmes,  117  U.  S.  389,  6  Sup. 
Ct  780,  29  L.  Ed.  915;  Whitman  v.  Heneber- 
ry, 73  111.  109 ;  such  documents  when  ad- 
mitted are  to  be  construed  as  duly  executed ; 
Brown  v.  Wood,  6  Rich.  Eq.  (S.  C.)  155 ;  and 
the  genuineness  must  be  established ;  Mc- 
Cleskey's  Adm'rs  v.  Leadbetter,  1  Ga.  551 ; 
mere  antiquity  is  not  enough  if  the  paper 
appears  defective  upon  its  face ;  Reaume  v. 
Chambers,  22  Mo.  36;  Williams  v.  Bass,  22 
Vt  352 ;  mere  production  is  not  sufficient ; 
Fogal  v.  Pirro,  23  N.  Y.  Super.  Ct  100 ;  when 
no  consideration  is  expressed  and  the  words 
"this  indenture"  are  omitted,  it  is  insuffi- 
cient; Gitting's  Lessee  v.  Hall,  1  Har.  &  J. 
(Md.)  14,  2  Am.  Dec.  502.  Deeds  were  admit- 
ted, though  defective  in  form  and  execution, 
in  Hoge  v.  Hubb,  94  Mo.  4S9,  7  S.  W.  443; 
Hill  v.  Lord,  48  Me.  83;  White  v.  Hutchings, 
40  Ala.  253,  88  Am.  Dec.  766. 

ANCIENTS.  Gentlemen  in  the  Inns  of 
Courts  who  are  of  a  certain  standing. 

In  the  Middle  Temple,  all  who  have  passed  their 
readings  are  termed  ancients.  In  Gray's  Inn,  the 
ancients  are  the  oldest  barristers ;  besides  which, 
the  society  consists  of  benchers,  barristers,  and 
students;  in  the  Inns  of  Chancery,  it  consists  of 
ancients  and   students  or  clerks. 

The  Council  of  Ancients  was  the  upper 
Chamber  of  the  French  legislature  under  the 
constitution  of  1795,  consisting  of  250,  each 
required  to  be  at  least  forty  years  old. 

A  N  C I  E  N  T  Y.  Eldership  ;  seniority.  Used 
in  the  statute  of  Ireland,  14  Hen.  VIII; 
Cowel. 

ANCILLARY  (Lat  ancilla,  a  handmaid). 
Auxiliary,  subordinate. 

As  it  Is  beneath  the  dignity  of  the  king's  courts 
to  be  merely  ancillary  to  other  inferior  jurisdic- 
tions, the  cause,  when  once  brought  there,  receives 
its  final  determination  ;    3   Bla.  Com.   98. 

Used  of  deeds,  and  also  of  an  administration  of 
an  estate  taken  out  in  the  place  where  assets  are 
situated,  which  is  subordinate  to  the  principal  ad- 
ministration, which  is  that  of  the  domicil;  1  Story, 
Eq.  Jur.  13th  ed.  §  583.  See  Administration.  And 
in  the  same  way  in  the  case  of  receiverships.  See 
Receiver. 

ANCIPITIS  USUS  (Lat).  Of  use  for  va- 
rious purposes. 

As  it  is  impossible  to  ascertain  the  final  use  of  an 
article  ancipitis  usus,  it  is  not  an  injurious  rule 
which  deduces  the  final  use  from  its  immediate  des- 
tination;   1  Kent  140. 

AND.  A  conjunction  connecting  words  or 
phrases  expressing  the  idea  that  the  latter  is 
to  be  added  to  or  taken  along  with  the  first 


AND 


195 


ANGARY,  RIGHT  OF 


It  is  said  to  be  equivalent  to  "as  well  as"; 
Porter  v.  Moores,  4  Heisk.  (Tenn.)  16. 

It  is  sometimes  construed  as  meaning  "or," 
and  has  been  so  treated  in  the  construction 
of  statutes;  Bay  State  Iron  Co.  v.  Goodall, 
39  N.  H.  223,  75  Am.  Dec.  219;  U.  S.  v. 
Fisk,  3  Wall.  (U.  S.)  445,  18  L.  Ed.  243;  1 
U.  C.  Q.  B.  357,  deeds;  Jackson  v.  Topping, 
1  Wend.  (N.  Y.)  388,  19  Am.  Dec.  515 ;  reso- 
lutions of  a  corporate  board  of  directors; 
Brown  v.  Furniture  Co.,  58  Fed.  286,  7  C.  C. 
A.  225,  22  L.  R.  A.  817  (per  Taft,  C.  J.) ;  and 
wills;  Sayward  v.  Say  ward,  7  Groenl.  (Me.) 
210,  22  Am.  Dec.  191 ;  1  Ves.  217 ;  7  id.  453 ;  4 
Bligh  U.  R.  321;  Jackson  v.  Blanshan,  6 
Johns.  (N.  Y.)  54,  5  Am.  Dec.  188  (per  Kent, 
O.  J.)  ;  Janney  v.  Sprigg,  7  Gill  (Md.)  197, 
48  Am.  Dec.  557,  where  the  cases  are  re- 
viewed, as  also  in  a  note  thereto  in  48  Am. 
Dec.  565. 

That  the  power  to  change  the  words  is 
not  arbitrary,  but  only  to  effectuate  the  in- 
tention, see  Armstrong  v.  Moran,  1  Bradf. 
Surr.  (N.  Y.)  314. 

The  character  &  has  been  recognized  as 
"sanctioned  by  age  and  good  use  for  per- 
haps centuries,  and  is  used  even  at  this 
day  in  written  instruments,  in  daily  transac- 
tions, and  with  such  frequency  that  it  may 
be  said  to  be  a  part  of  our  language"  ;  Brown 
v.  State,  16  Tex.  App.  245.  So  the  abbrevia- 
tion &c.  is  said  to  have  "been  naturalized  in 
English  for  ages,"  and  was  constantly  used 
by  Lord  Coke  without  a  suggestion  from  any 
quarter  that  it  is  not  English ;  Berry  v.  Os- 
born,  28  N.  H.  279. 

See  Or. 

A  N  D  R  0  L  E  PSY.  The  taking  by  one  nation 
of  the  citizens  or  subjects  of  another  in  or- 
der to  compel  the  latter  to  do  justice  to  the 
former.  Wolfflus,  §  1164;  Molloy,  de  Jure 
Mar.  26. 

AN  EC  I  US  (Lat.  Spelled  also  cesnecius, 
cnitius,  arneas,  eneyus  Fr.  aisne).  The  eld- 
est-born; the  first-born;  senior,  as  contrast- 
ed with  the  puis-ne  (younger);  Burrill,  Law 
Diet.  99  ;    Spelman,  Gloss.    JEsneoia. 

ANGARIA.  In  Roman  and  Feudal  Law.  A 
service  exacted  by  the  government  for  public 
purposes;  in  particular,  the  right  of  a  pub- 
lic officer  to  require  the  service  of  vehicles 
or  ships;  personal  service  exacted  from  a 
villein  by  his  lord.  Dig.  50,  4,  18,  §  29 ;  Spel- 
man, Gloss. 

ANGARY,  RIGHT  OF.  In  International 
Law.  Formerly  the  right  (jus  angaria;) 
claimed  by  a  belligerent  to  seize  merchant 
vessels  in  the  harbors  of  the  belligerent  and 
to  compel  them,  on  payment  of  freight,  to 
transport  troops  and  supplies  to  a  designated 
port.  It  was  frequently  exercised  by  Louis 
XIV.  of  France,  but  as  a  result  of  specific 
treaties  entered  into  by  states  not  to  exercise 
the  right,  it  has  now  come  to  be  abandoned. 
2  Opp.  446. 


At  the  present  day,  the  right  of  a  bellig- 
erent to  appropriate,  either  for  use,  or  for 
destruction  in  case  of  necessity,  neutral  prop- 
erty temporarily  located  in  his  own  territory 
or  in  that  of  the  other  belligerent  The  prop- 
erty may  be  of  any  description  whatever, 
provided  the  appropriation  of  it  be  for  mili- 
tary or  naval  purposes. 

Requisition  of  neutral  property  is  justified 
by  military  necessity,  and  accordingly  the 
right  of  angary  is  a  belligerent  right,  al- 
though the  claim  of  the  neutral  owner  to  In- 
demnity properly  comes  under  the  law  of 
neutrality  {q.  v.). 

An  indirect  recognition,  a  fortiori,  of  the 
duty  of  the  belligerent  to  pay  indemnity  may 
be  found  in  Arts.  52-53  of  IV  Hague  Conf. 
1907,  which  requires  the  payment  of  such  in- 
demnity when  private  enemy  property  Is 
requisitioned.  Art.  19  of  V  Hague  Conf. 
1907,  provides  that  railway  material  coming 
from  the  territory  of  neutral  powers  shall 
not  be  requisitioned,  except  in  case  of  abso- 
lute necessity,  and  neutral  powers  may,  un- 
der similar  necessity,  retain  railway  ma- 
terial coming  from  the  territory  of  the  bel- 
ligerent, due  compensation  being  made  by 
both  sides. 

ANGEL.  An  ancient  English  coin,  of  the 
value  of  ten  shillings  sterling.  Jacobs,  Law 
Diet.;   Cunningham. 

AN  GILD  (Sax.).  The  bare,  single  valua- 
tion or  estimation  of  a  man  or  thing,  accord- 
ing to  the  legal  estimates. 

When  a  crime  was  committed,  before  the 
Conquest,  the  angild  was  the  money  com- 
pensation that  the  person  who  had  been 
wronged  was  entitled  to  receive.  Maitl. 
Domesday  Book  &  Beyond  274. 

The  terms  twigild,  trigild,  denote  twice,  thrice, 
etc.  angild.     Leges  Ince,  c.   20;    Cowell. 

ANHL0TE  (Sax.).  A  single  tribute  or 
tax.  Cunningham.  The  sense  is,  that  every 
one  should  pay,  according  to  the  custom  of 
the  country,  Ms  respective  part  and  share. 
Spelman,  Gloss. 

ANIENS.  Void;  of  no  force.  Fitzherbert, 
Nat.  Brev.  214. 

ANIENT  (Fr.  aneantir).  Abrogated,  or 
made  null.    Littleton,  §  741. 

ANIMAL.  Any  animate  being  which  is 
not  human,  endowed  with  the  power  of  vol- 
untary motion. 

Domitce  are  those  which  have  been  tamed 
by  man ;    domestic. 

Ferce  natures  are  those  which  still  retain 
their  wild  nature. 

A  man  may  have  an  absolute  property  In 
animals  of  a  domestic  nature;  2  Mod.  319 ;  2 
Bla.  Com.  390 ;  but  not  so  in  animals  fcrce 
natures,  which  belong  to  him  only  while  in 
his  possession;  Wallis  v.  Mease,  3  Binn.  (Pa.) 
546;  Pierson  v.  Post,  3  Caines  (N.  Y.)  175,  2 
Am.  Dec.  264;  Gillet  v.  Mason,  7  Johns.  (N. 
Y.)  16;    State  v.  Murphy,  8  Blackf.   (Ind.) 


ANIMAL. 


196 


ANIMAL 


498 ;  2  B.  &  C.  934.  Yet  animals  which  are 
sometimes  ferce  naturw  may  be  tamed  so  as 
to  become  subjects  of  property;  as  an  otter; 
State  v.  House,  65  N.  C.  315,  6  Am.  Rep.  744; 
pigeons  which  return  to  their  house ;  2  Den. 
Cr.  Cas.  362;  4'  C.  &  P.  131;  Com.  v.  Chace, 
9  Pick.  (Mass.)  15,  19  Am.  Dec.  348;  or 
pheasants  hatched  under  a  hen;  1  Fost.  & 
F.  350.  And  the  flesh  of  animals  fer<z  na- 
tures may  be  the  subject  of  larceny;  3  Cox, 
Cr.  Cas.  572;  1  Den.  Cr.  Cas.  501;  2  C.  &  K. 
9S1 ;  State  v.  House,  65  N.  C.  315,  6  Am.  Rep. 
744. 

Animals  ferce  nature?  were  considered  by 
the  Roman  law  as  belonging  in  common  to 
all  the  citizens  of  the  state;   Geer  v.   Con- 
necticut, 161  U.  S.  319,  16  Sup.  Ct.  600,  40 
L.   Ed.   793;    and   by   the   common   law   the 
property  in  game  was  based  on  common  own- 
ership and  subject  to  governmental  author- 
ity;    2   Bla.   Com.   14.     One   may   have  the 
privilege  of  hunting  wild  animals  to  the  ex- 
clusion of  other  persons;  7  Co.  18  a;  but  only 
by  grant  of  the  king  or  of  his  officers  or  by 
prescription;   id.  (the  case  of  the  swans).     In 
the  United  States  the  ownership  of  such  ani- 
mals is  vested  in  the  state,  not  as  proprietor, 
but  in  its  sovereign  capacity,  as  representing 
the  people  and  for  their  benefit;    Ex  parte 
Maier,  103  Cal.  476,  37  Pac.  402,  42  Am.  St. 
Rep.  129;    State  v.  Repp,  104  la.  305,  73  N. 
W.  829,  40  L.  R.  A.  687,  65  Am.  St.  Rep.  463. 
It   alone   has   power   to   control   the   killing 
and  ownership  of  wild  game;    Geer  v.  Con- 
necticut, 161  U.  S.  532,  16  Sup.  Ct.  600,  40 
L.  Ed.  793.    Animals  wild  by  nature  are  sub- 
jects of  ownership   while   living   only   when 
on   the   land   of  the  person    claiming   them; 
Cal.  Civ.  Code  §  656.    Under  this  provision  it 
was  held  that  one  has  a  right  in  wild  game 
birds  within  his  game  preserves,  which  en- 
titles him  to  protect  them  against  trespassers; 
Kellogg  v.  King,  114  Cal.  378,  46  Pac.  166,  55 
Am.  St.  Rep.  66.    Deer,  when  reclaimed  and 
enclosed,  are  property,  Dietrich  v.  Fargo,  194 
N.  Y.  359,  87  N.  E.  518,  22  L.  R.  A.  (N.   S.) 
696. 

Bees  are  /era?  naturw;  Goff  v.  Kilts,  15 
Wend.  (N.  Y.)  550;  but  when  hived  or  re- 
claimed one  may  have  a  qualified  property 
in  them;  Goff  v.  Kilts,  15  Wend.  (N.  Y.)  550; 
Rexroth  v.  Coon,  15  R.  I.  35,  23  Atl.  37,  2  Am. 
St.  Rep.  863;  because  they  "have  a  local 
habitation,  more  often  in  a  tree  than  else- 
where, and  while  there  they  may  be  said  to 
be  within  control,  because  the  tree  may  at 
any  time  be  felled.  But  the  right  to  cut  it 
down  is  in  the  owner  of  the  soil,  and  there- 
fore such  property  as  the  bees  are  susceptible 
of  is  in  him  also";  Cooley  on  Torts  435; 
State  v.  Repp,  104  la.  305,  73  N.  W.  829,  40 
L.  R.  A.  687,  65  Am.  St.  Rep.  463.  The  mere 
finder  of  them  on  the  land  of  another  ac- 
quires no  title  to  the  tree  or  the  bees;  State 
▼.  Repp,  104  la.  305,  73  N.  W.  829,  40  L. 
R.  A.  687,  65  Am.  St.  Rep.  463;  Gillet  v. 
Mason,  7  Johns.  (N.  Y.)  16 ;   Merrils  y.  Good- 


win, 1  Root  (Conn.)  209.  In  a  suit  against 
the  owner  of  bees  for  injuries  caused  by 
them  to  horses,  it  was  held  that  however  it 
might  have  been  anciently,  in  modern  days 
the  bee  has  become  almost  as  completely  do- 
mesticated as  the  ox  or  the  cow;  Earl  v. 
Van  Alstine,  8  Barb.  (N.  Y.)  630. 

But  the   ancient   rule  that   animals   ferce 
naturae  can  only  be  the  subject  of  property 
while  in  actual  possession,  and  that  loss  of 
possession  without  intention  to  return  on  the 
part  of  the  animal  carries  with  it  the  loss  of 
property  by  the  owner;    Mullett  v.  Bradley, 
24  Misc.  Rep.  (N.  Y.)  695,  53  N.  Y.  Supp.  781 ; 
seems  inconsistent  with  the  related  law  gov- 
erning the  responsibility  of  owners  for  inju- 
ries done  by  such  animals ;   12  Harv.  L.  Rev. 
346;   as  where  a  bear  slipped  his  collar  and 
in  his  escape  to  the  woods  injured  a  man, 
the  owner  was   held   liable;    Vredeuburg   v. 
Behan,  33  La.  Ann.  627;  but  where  a  sea  lion 
escaped  from  the  possession  of  its  owner  and 
was   abandoned    by   him   and    recaptured    a 
year  afterwards  seventy  miles  from  the  place 
of  its  escape,  the  owner  was  held  to  have  lost 
his  property,  expressly  on  the  ground  of  loss 
of  possession;    Mullett  v.  Bradley,  24  Misc. 
695,  53  N.   Y.  Supp.  781;    12  Harv.  L.   Rev. 
346.     In  Manning  v.  Mitcherson,  69  Ga.  447, 
47  Am.  Rep.  764,  it  was  said  that  to  hold  that 
wild  animals  of  a  menagerie,  should  they  es- 
cape  from   their  owner's    immediate   posses- 
sion,  would  belong  to  the  first  person   who 
should  subject  them  to  his  dominion,  would 
be  an  injustice. 

The  common  law  recognized  a  property  in 
dogs;  State  v.  Sumner,  2  Ind.  377;  Chapman 
v.  Decrow,  93  Me.  378,  45  Atl.  295,  74  Am. 
St.  Rep.  357;  Uhlein  v.  Comack,  109  Mass. 
273;  and  in  the  United  States  it  is  generally 
recognized  by  the  law;  Fisher  v.  Badger,  95 
Mo.  App.  289,  69  S.  W.  26;  Harrington  v. 
Hall,  6  Pennewill  (Del.)  72,  63  Atl.  875;  Jones 
v.  R.  Co.,  75  Miss.  970,  23  South.  358;  Reed 
v.  Goldneck,  112  Mo.  App.  310,  86  S.  W.  1104. 
Such  property,  however,  is  held  to  be  of  a 
peculiar  character;  Chunot  v.  Larson,  43 
Wis.  536,  28  Am.  Rep.  567;  and  of  a  qualified 
nature;  Woolf  v.  Chalker,  31  Conn.  121,  81 
Am.  Dec.  175;  City  of  Hagerstown  v.  Wit- 
mer,  86  Md.  293,  37  Atl.  965,  39  L.  R.  A.  649. 
The  owner  may  recover  for  its  wrongful  in- 
jury; Louisville  &  N.  R.  Co.  v.  Fitzpatrick, 
129  Ala.  322,  29  South.  859,  87  Am.  St.  Rep. 
64;  Chapman  v.  Decrow,  93  Me.  378,  45  Atl. 
295,  74  Am.  St.  Rep.  357;  Moore  v.  Electric 
Co.,  136  N.  C.  554,  48  S.  E.  822,  67  L.  R.  A. 
470;  or  its  conversion ;  Graham  v.  Smith, 
100  Ga.  434,  28  S.  E.  225,  40  L.  R.  A.  503,  62 
Am.  St.  Rep.  323;  or  unlawful  killing; 
Wheatley  v.  Harris,  4  Sneed  (Tenn.)  468,  70 
Am.  Dec.  258;  Smith  v.  Ry.  Co.,  79  Minn. 
254,  82  N.  W.  577;  State  v.  Coleman,  29  Utah, 
417,  82  Pac.  465;  Harrington  v.  Hall,  6  Pen- 
newill (Del.)  72,  63  Atl.  875.  At  common  law 
it  was  not  larceny  to  steal  a  dog;  4  Bla. 
Com.  235;   Mullaly  v.  People,  86  N.  Y.  365; 


ANIMAL 


197 


ANIMAL 


State  v.  Jenkins,  78  N.  C.  481 ;  Jenkins  v. 
Ballantyne,  8  Utah,  245,  30  Pac.  700,  1G  L. 
R.  A.  089  (see  note  in  15  Ami  Rep.  356) ;  be- 
cause larceny  was  a  crime  punishable  by 
death,  and  it  was  thought  not  fit  that  a  man 
should  die  for  a  dog;  Brainard  v.  Knapp,  9 
Misc.  207,  29  N.  Y.  Supp.  678;  but  by  statute 
in  many  of  the  states  it  is  now  made  larceny; 
Com.  v.  Depuy,  148  Pa.  201,  23  Atl.  S96 ;  Pat- 
ton  v.  State,  93  Ga.  Ill,  L9  S.  K.  734,  lit  L. 
R.  A.  732;  Johnson  v.  McConnell,  80  Cal.  545, 
22  Pac.  219;  Harrington  v.  Miles,  11  Kan. 
481,  15  Am.  Rep.  355;  City  of  Carthage  v. 
Rhodes,  101  Mo.  175,  14  S.  W.  181,  9  L.  R. 
A.  352;  State  v.  Mease,  69  Mo.  App,  581; 
Harris  v.  Eaton,  20  R.  I.  84,  37  Atl.  308. 
There  is  a  conflict  of  opinion  as  to  whether 
statutes  against  taking  goods  or  other  prop- 
erty shall  be  construed  to  include  dogs.  In 
subjecting  them  to  taxation  they  are  there- 
by made  the  subject  of  larceny  under  the 
generic  term  personal  property  or  chattel; 
Com.  v.  Hazelwood,  84  Ky.  681,  2  S.  W.  489; 
and  see  Hurley  v.  State,  30  Tex.  App.  335,  17 
S.  W.  455,  28  Am.  St.  Rep.  916;  Mullaly  v. 
People,  86  N.  Y.  365;  but  by  other  courts  it 
is  held  that  taxes  are  not  imposed  on  the 
theory  that  they  are  property,  but  as  police 
regulations;  State  v.  Doe,  79  Ind.  9,  41  Am. 
Rep.  599;  State  v.  Lymus,  26  Ohio  St.  400, 
20  Am.  Rep.  772. 

A  statute  requiring  dogs  to  be  put  on  the 
assessment  rolls,  and  limiting  any  recovery 
by  the  owner  to  the  value  fixed  by  himself 
for  the  purpose  of  taxation,  is  constitutional; 
Sentell  v.  Railroad  Co.,  166  U.  S.  698,  17  Sup. 
Ct.  693,  41  L.  Ed.  1169.  In  this  case  the  ani- 
mal was  a  valuable  Newfoundland  bitch  kept 
by  the  owner  for  breeding  purposes  and  was 
killed  by  an  electric  car.  The  court  held 
that  the  statute  put  a  premium  upon  valuable 
dogs  by  giviug  them  a  recognized  position  and 
permitting  the  owner  to  put  his  own  valua- 
tion upon  them. 

They  are  embraced  in  the  term  "all  brute 
creatures";  State  v.  Giles,  125  Ind.  124,  25 
N.  E.  159;  or  "animals";  Warner  v.  Perry, 
14  Hun  (N.  Y.)  337;  State  v.  Coleman,  29 
Utah,  417,  82  Pac.  465;  or  "domestic  ani- 
mal"; Shaw  v.  Craft,  37  Fed.  317  (contra, 
State  v.  Harriman,  75  Me.  562,  46  Am.  Rep. 
423);  and  have  been  held  to  be  included  in 
the  term  "chattel";  Com.  v.  Hazelwood,  84 
Ky.  6S1.  2  S.  W.  489;  see  40  L.  R.  A.  503  n.; 
not  within  the  term  "other  beasts" ;  U.  S.  v. 
Gideon,  1  Minn.  292  (Gil.  226). 

They  are  not  considered  as  being  upon  the 
same  plane  with  horses,  cattle,  sheep  and 
other  domesticated  animals  (see  State  v. 
Harriman,  75  Me.  562),  but  rather  in  the 
category  of  cats,  monkeys,  parrots,  singing 
birds,  etc.,  kept  for  pleasure.  They  are 
peculiar  in  that  they  differ  among  themselves 
more  widely  than  any  other  class  of  animals. 
and  can  hardly  be  said  to  have  a  characteris- 
tic common  to  the  entire  race.  They  stand 
between  animals  ferae  natures,  in  which,  until 


killed,   there   is    no   property,   and   do        -ic 
animals,    in    which   the  right  of  pi 
complete;     Sentell   v.   R.   Co.,   100   U.   S. 
17  Sup.  Ct.  693,   11  L.  Ed.  1169. 

A  dog  cannot  lawfully  be  killed  merely  for 
trespassing;  Marshall  v.  Blackshire,  44  la. 
475;  Brent  v.  Kimball,  00  111.  nil.  14  Am. 
Rep.  35;  Dinwiddle  v.  State,  103  Ind.  101,  u 
N.  E.  290;  Rowers  v.  Horen,  U.',  Mich.  420,  :,:; 
N.  W.  5.^.5,  17  L.  R.  A.  773,  32  Am.  St 
513;  Fenton  v.  Bisel,  80  Mo.  App.  135;  but 
killing  a  trespassing  dog  is  justifiable  if  it 
he  necessary  to  protect  one's  property;  King 
v.  Kline,  6  Pa.  318;  Fisher  v.  P.adger,  95 
Mo.  App.  289,  69  S.  W.  20  ;  and  where  dogs 
congregated  on  one's  premises  at  night  and 
by  their  noise  interfered  with  the  rest  of  a 
family,  shooting  among  them  was  justified, 
as  a  reasonable  and  necessary  means  to  pro- 
tect the  family  from  a  nuisance;  Hubbard 
v.  Preston,  90  Mich.  221,  51  X.  \V.  209,  15  L. 
R.  A.  249,  30  Am.  St.  Rep.  426. 

The  owner  of  any  animal,  tame  or  wild, 
is  liable  for  the  exercise  of  such  dangerous 
tendencies  as  generally  belong  to  its  nature, 
but  not  of  any  not  in  accordance  with  its 
nature,  unless  the  owner  or  keeper  knew,  or 
ought  to  have  known,  of  the  existence  of 
such  dangerous  tendency;  Whart.  NegL  § 
923.  To  recover  for  damages  inflicted  by  a 
ferocious  dog,  it  is  not  necessary  actually  to 
prove  that  it  has  bitten  a  person  before;  L. 
R.  2  C.  P.  1 ;  Linnehan  v.  Sampson,  126  Mass. 
511,  30  Am.  Rep.  092;  Rider  v.  White,  65  X. 
Y.  54,  22  Am.  Rep.  (iOO ;  Rowe  v.  Ehrmann- 
traut,  92  Minn.  17,  99  X.  W.  I'll  ;  Barclay  v. 
Hartman,  2  Marv.  (Del.)  351,  43  Atl.  174; 
McConnell  v.  Lloyd,  9  Pa.  Super.  Ct.  25. 

The  owner  of  a  mischievous  animal,  known 
to  him  to  be  so,  is  responsible,  when  be  per- 
mits him  to  go  at  large,  for  the  damage  he 
may  do;  Spring  Co.  v.  Edgar,  99  U.  S.  045, 
25  L.  Ed.  487;  Lyons  v.  Merrick,  105  Mass. 
71;  Partlow  v.  Haggarty,  35  Ind.  178;  Kight- 
linger  v.  Egan,  75  111.  141;  Meibus  v.  Dodge, 
38  Wis.  300,  20  Am.  Rep.  6;  Snyder  v.  Pat- 
terson, 161  Pa.  98,  28  Atl.  1006;  Shaw  v. 
Craft,  37  Fed.  317;  Harvey  v.  Buchanan.  121 
Ga.  384,  49  S.  E.  281;  Burleigh  &  Jackson 
v.  Hiues,  124  la.  199,  99  N.  W.  723;  he  Is 
liable,  though  not  negligent,  in  the  matter 
of  his  escape  from  a  close;  Hammond  v. 
Melton,  42  111.  App.  186;  Vredenburg  v. 
Behan,  33  La.  Ann.  CL'7;  Manger  v.  Shipuian, 
30  Neb.  352,  46  N.  W.  527;  19  Out.  Rep.  39. 
In  Muller  v.  McKesson,  73  N.  Y.  105,  29  Am. 
Rep.  123,  it  is  said  that  though  it  may  be,  in 
a  certain  sense,  that  the  action  for  injury 
by  vicious  animals  is  based  upon  negligence, 
such  negligence  consists  not  in  the  manner  of 
keeping  the  animal,  or  the  care  exercised  in 
respect  to  confining  him,  but  in  the  fact  that 
he  is  ferocious  and  the  owner  knows  it  The 
negligence  consists  in  keeping  such  an  ani- 
mal. See  Speckmann  v.  Kreig,  79  Mo.  App. 
376.  This  rule  is  old:  "If  an  ox  gore  a  man 
or  woman,  that  they  die;    then  the  ox  shall 


ANIMAL 


198 


ANIMAL 


be  surely  stoned,  and  his  flesh  shall  not  be 
eaten;  but  the  owner  of  the  ox  shall  be  quit. 
But  if  the  ox  were  wont  to  push  with  his 
horn  in  time  past,  and  it  hath  been  testified 
to  his  owner,  and  he  hath  not  kept  him  in, 
but  that  he  hath  killed  a  man  or  a  woman; 
the  ox  shall  be  stoned,  and  his  owner  also 
shall  be  put  to  death."    Exodus  xxi,  28,  29. 

One  knowingly  harboring  a  vicious  and 
dangerous  dog  is  liable  for  damages  sustain- 
ed by  others  from  its  bite;  McGurn  v.  Grub- 
nau,  37  Pa.  Super.  Ct.  454,  459.  In  [1908] 
2  K.  B.  Div.  352,  Channel,  J.,  said  that 
keeping  a  dog  known  to  be  savage  stands  on 
the  same  footing  as  keeping  a  wild  beast.  It 
is  enough  if  he  occasionally  attacks  human 
beings  without  provocation ;  Merritt  v.  Mat- 
chett,  135  Mo.  App.  176,  115  S.  W.  1066;  the 
owner  must  have  had  actual  knowledge ; 
Muller  v.  Shufeldt,  114  N.  Y.  Supp.  1012; 
Alexander  v.  Crosby,  143  la.  50,  119  N.  W. 
717;  but  constructive  knowledge  has  been 
held  sufficient;  Merritt  v.  Matchett,  135  Mo. 
App.  176,  115  S.  W.  1066;  the  mere  fact  of 
the  attack  does  not  raise  a  presumption  that 
the  dog  was  vicious,  but  it  can  be  established 
by  proof  that  on  previous  occasions  it  had 
attacked  people  without  provocation;  id.; 
and  one  who  has  long  harbored  a  vicious  dog 
is  presumed  to  know  its  propensities ;  id. 
Running  out  and  barking  at  horses  and  per- 
sons passing  is  not,  as  a  matter  of  law,  evi- 
dence of  viciousness;  Muller  v.  Shufeldt,  114 
N.  Y.  Supp.  1012.  Where  one  kept  dogs  of 
the  same  family  and  appearance,  a  person 
bitten  by  one  of  them  is  not  required  to  prove 
which  one,  nor  to  prove  that  previous  at- 
tacks on  others  were  made  by  the  same  dog; 
McGurn  v.  Grubnau,  37  Super.  Ct.  Pa.  454, 
459. 

On  the  other  hand  it  has  been  held  that 
when  wild  animals  are  kept  for  a  purpose 
recognized  as  not  censurable,  all  that  can  be 
demanded  of  their  keeper  is  that  he  shall 
take  that  superior  precaution  to  prevent 
their  doing  mischief  which  their  propensities 
in  that  direction  justly  demand  of  him ;  Cool- 
ey,  Torts  (3d  ed.)  707,  n. ;  11  L.  R.  A.  (N. 
S.)  748,  n.  One  who  knowingly,  voluntarily 
and  unnecessarily  places  himself  within 
reach  of  a  ferocious  animal  which  is  chained 
up  cannot  recover  for  injuries  received; 
Ervin  v.  Woodruff,  119  App.  Div.  603,  103  N. 
Y.  Supp.  1051;  Molloy  v.  Starin,  113  App. 
Div.  852,  99  N.  Y.  Supp.  603.  An  injunction 
will  lie  against  keeping  a  vicious  dog  with- 
out appropriate  restraint;  it  is  a  nuisance; 
Rider  v.  Clarkson,  77  N.  J.  Eq.  469,  78  Atl. 
676,  140  Am.  St  Rep.  614. 

Any  person  may  justify  the  killing  of  fero- 
cious animals;  Leonard  v.  Wilkins,  9  Johns. 
(N.  Y.)  233;  Putnam  v.  Payne,  13  Johns.  (N. 
Y.)  312;  Nehr  v.  State,  35  Neb.  638,  53  N. 
W.  589,  17  L.  R.  A.  771. 

Running  at  large  is  defined  as  strolling 
about  without  restraint  or  confinement. 
Morgan  v.  People,  103  111.  App.  257. 


An  animal  untethered  and  unattended  in 
the  street  in  front  of  its  owner's  premises 
was  held  to  be  running  at  large ;  Decker  v. 
McSorley,  111  Wis.  91,  86  N.  W.  554;  or  tres- 
passing upon  the  premises  of  another  and 
not  under  the  immediate  control  of  the  own- 
er;  Gilbert  v.  Stephens,  6  Okl.  673,  55  Pac. 
1070;  but  a  domestic  animal  which  has  es- 
caped from  its  inclosure  without  the  fault  of 
the  owner;  Briscoe  v.  Alfrey,  61  Ark.  196,  32 
S.  W.  505,  30  L.  R.  A.  607,  54  Am.  St.  Rep. 
203;  Myers  v.  Lape,  101  111.  App.  182;  and 
to  recover  which  such  owner  is  making  rea- 
sonable efforts,  is  not  running  at  large ;  My- 
ers v.  Lape,  101  111.  App.  182. 

It  is  unlawful  to  kill  a  dog  because  he  is 
in  the  street  outside  of  a  poultry  yard,  in- 
closed by  an  impassable  fence,  though  the 
dog  had  harassed  the  poultry  before,  or  be- 
cause of  his  predatory  habits ;  State  v. 
Smith,  156  N.  C.  628,  72  S.  E.  321,  36  L.  R, 
A.   (N.  S.)   910. 

It  is  the  duty  of  the  owner  of  domestic 
animals  to  keep  them  upon  his  own  premises; 
Klenberg  v.  Russell,  125  Ind.  531,  25  N.  E. 
596 ;  Robinson  v.  R.  Co.,  79  Mich.  323,  44  N. 
W.  779,  19  Am.  St.  Rep.  174.  It  is  the  nature 
of  cattle  and  other  animals  to  stray  and  to 
do  damage,  and  the  owner  is  bound  to  keep 
them  from  straying  at  his  peril ;  Haigh  v. 
Bell,  41  W.  Va.  19,  23  S.  E.  666,  31  L.  R.  A. 
131.  The  common  law  doctrine  is  that  the 
owner  of  cattle  must  fence  them  in;  Taber 
v.  Cruthers,  59  Hun  619,  13  N.  Y.  Supp.  446; 
Bulpit  v.  Matthews,  145  111.  345,  34  N.  E.  525, 
22  L.  R.  A.  55.  He  is  not  compelled  to  fence 
the  cattle  of  others  out.  Owing  to  change  of 
circumstances,  due  in  part  to  the  settlement 
of  a  new  country,  in,  many  states  a  different 
rule  prevails.  The  owner  of  land  must  fence 
out  the  cattle  of  others.  He  need  not  fence 
in  his  own.  He  takes  the  risk  of  loss  of  or 
injury  to  them  from  their  running  at  large 
and  wandering  into  danger;  Haigh  v.  Bell, 
41  W.  Va.  19,  23  S.  E.  666,  31  L.  R.  A.  131; 
Sprague  v.  R.  Co.,  6  Dak.  86,  50  N.  W.  617; 
Buford  v.  Houtz,  133  U.  S.  320,  10  Sup.  Ct 
305,  33  L.  Ed.  618;  Kerwhaker  v.  R.  Co.,  3 
Ohio  St.  179,  62  Am.  Dec.  246 ;  Muir  v.  Thix- 
ton,  119  Ky.  753,  78  S.  W.  466.  To  leave  un- 
cultivated lands  uninclosed  is  an  implied  li- 
cense to  cattle  to  graze  on  them ;  Kerwhaker 
v.  R.  Co.,  3  Ohio  St.  179,  62  Am.  Dec.  246; 
Seeley  v.  Peters,  5  Gilman  (111.)  142;  Comer- 
ford  v.  Dupuy,  17  Cal.  308;  Chase  v.  Chase, 
15  Nev.  259 ;  Delaney  v.  Errickson,  10  Neb. 
492,  6  N.  W.  600,  35  Am.  Rep.  487 ;  Burgwyn 
v.  Whitfield,  81  N.  C.  261;  Moore  v.  White, 
45  Mo.  206;  Little  Rock  &  F.  S.  Ry.  Co.  t. 
Finley,  37  Ark.  562;  Lee  County  v.  Yar- 
brough,  85  Ala.  590,  5  South.  341;  Frazier  v. 
Nortinus,  34  la.  82;  Faut  v.  Lyman,  9  Mont. 
61,  22  Pac.  120;  Meyers  v.  Menter,  63  Neb. 
427,  88  N.  W.  662.  The  keeping  of  live  stock 
is  usually  under  police  regulation ;  Reser  v. 
Umatilla  County,  48  Or.  326,  86  Pac.  595,  120 
Am.  St  Rep.  815;    and  in  many  states  stat- 


ANIMAL 


199 


ANIMAL 


utes  forbidding  animals  to  run  at  large,  or 
restricting  them  or  limiting  such  rights,  are 
in  force.  By  statute  in  Illinois  the  common 
law  liability  is  now  restored;  Fredrick  v. 
White,  73  111.  590;  as  it  is  in  Pennsylvania; 
Barber  v.  Mensch,  157  Pa.  390,  27  Atl.  708. 
A  statute  in  Idaho  prohibits  sheep  from 
grazing  on  the  public  domain  within  two 
miles  of  a  dwelling  house.  This  was  held 
not  an  unreasonable  discrimination  against 
the  sheep  industry,  but  rather  as  a  matter  of 
protection  to  the  owners  of  other  grazing 
cattle,  as  cattle  will  not  graze  and  will  not 
thrive  upon  lauds  where  sheep  .ire  grazed  to 
any  extent;  Bacon  v.  Walker,  204  U.  S.  .ill, 
27  Sup.  Ct.  2S0,  51  L.  Ed.  -19!);  and  the  act 
was  held  to  be  a  valid  exercise  of  the  police 
power;  Sifers  v.  Johnson,  7  Ida.  798,  65  Pac. 
709,  54  L.  R.  A.  785,  97  Am.  St.  Rep.  271; 
Sweet  v.  Ballentyne,  8  Ida.  431,  G9  Tac.  995. 
See  Fence. 

In  the  western  states  cattle  are  required 
to  be  branded.  Such  marks  and  brands  are 
evidence  of  ownership  and  are  a  matter  of 
statutory  regulation,  and  the  court  will  take 
judicial  notice  that  in  some  states  cattle  run 
at  large  in  great  stretches  of  country  with  no 
other  means  of  determining  their  separate 
ownership  than  by  the  marks  and  brands 
upon  them  ;  New  Mexico  v.  R.  Co.,  203  U.  S. 
51,  27  Sup.  Ct.  1,  51  L.  Ed.  78. 

As  to  the  right  to  impound  estrays,  see 
Estray;   Pound. 

Acts  of  congress  have  established  a  bureau 
of  animal  industry,  and  the  Secretary  of 
Agriculture  is  authorized  to  use  such  means 
as"  he  may  deem  necessary  for  the  prevention 
of  the  spread  of  pleuro-pneumonia  and  other 
diseases  of  animals.  Carriers  are  forbidden 
to  receive  for  transportation  any  live  stock 
affected  by  any  contagious  or  infectious  dis- 
ease. A  state  statute  for  the  protection  of 
domestic  animals  from  contagious  diseases  is 
not  a  regulation  of  commerce  between  the 
states  simply  because  it  may  incidentally  or 
indirectly  affect  such  commerce ;  Missouri, 
K.  &  T.  Ry.  v.  Ilaber,  1(59  U.  S.  627,  18  Sup. 
Ct  488,  42  L.  Ed.  878.  citing  Hennington  v. 
Georgia,  163  U.  S.  299,  16  Sup.  Ct.  1086,  41 
L.  Ed.  166 ;  New  York,  N.  H.  &  II.  R.  R.  v. 
New  York,  165  U.  S.  628,  17  Sup.  Ct.  418,  41 
L.  Ed.  853 ;  and  where  a  statute  provides  a 
right  of  action  for  injuries  arising  from  dis- 
ease communicated  to  domestic  cattle  by  cat- 
tle of  a  particular  kind  brought  into  a  state, 
it  does  not  conflict  with  any  regulation  es- 
tablished under  the  authority  of  congress  to 
prevent  the  spread  of  contagious  or  infec- 
tious diseases  from  one  state  to  another; 
Missouri,  K.  &  T.  Ry.  v.  Haber,  169  U.  S.  627, 
18  Sup.  Ct.  488,  42  L.  Ed.  878.  See  Com- 
merce; Inspection  Laws;  Common  Car- 
biers. 

See  Agistor  ;  Accession  ;  Cruelty. 
Animals  of  a  base  nature  are   those  ani- 
mals which,  though  they  may  be  reclaimed, 
are  not  such  that  at  common  law  a  larceny 


may  be  committed  of  them,  by  reason  of  the 
baseness  of  their  nature. 

Some  animals  which  are  now  usually  tamed  come 
within  this  class,  as  dogs  and  cats ;  and  others 
which,  though  wild  by  nature  and  often  reclaimed 
by  art  and  industry,  clearly  fall  within  the  Bame 
rule,  as  bears,  foxes,  apes,  monkeys,  ferrets,  and  the 
like;  Coke,  3d  Inst.  109;  1  Hale,  PI.  Cr.  511,  512; 
1  Hawk.  PI.  Cr.  33,  §  36  ;  4  Bla.  Com.  236;  2  East, 
PI.  Cr.  614.    See  1  Wms.  Saund.  84,  note  2. 

ANIMAL    INDUSTRY,    BUREAU    OF.     See 

Health. 

ANIMO  (Lat).  With  intention.  See  Ani- 
mus, used  with  various  other  words. 

ANIMUS  (Lat,  mind).  The  intention 
with  which  an  act  is  done.    See  I.mm  .vr. 

ANIMUS  CANCELLANDI.  An  intention 
to  destroy  or  cancel.     See  Cancellation. 

ANIMUS  CAPIENDI.  The  intention  to 
take.    4  C.  Rob.  Adm.  126,  155. 

ANIMUS  FURANDI.  The  intention  to 
steal. 

In  order  to  constitute  larceny,  the  thief  must  take 
the  property  animo  furandi;  but  this  is  expressed 
in  the  definition  of  larceny  by  the  word  felonious  ; 
Coke,  3d  Inst.  107;  Hale,  PI.  Cr.  503;  4  Bla.  Com. 
229.  See  2  Russell,  Crimes  96;  Rapalje,  Larceny, 
§  18.  When  the  taking  of  property  is  lawful,  al- 
though it  may  afterwards  be  converted  animo  fu- 
randi to  the  taker's  use,  it  is  not  larceny;  Bacon, 
Abr.  Felony,  C  ;  People  v.  Anderson,  14  Johns.  (N. 
Y.)  294,  7  Am.  Deer.  402;  Ry.  &  M.  160,  137;  State  v. 
Shermer,  55  Mo.  83;  [1S95]  2  Ir.  709.  See  Larceny; 
Mens   Rea;    Motive;    Intent. 

ANIMUS  LUCRANDI.  The  intention  to 
gain  or  profit.    3  Kent  357. 

ANIMUS  MANENDI.  The  intention  of  re- 
maining. 

To  acquire  a  domicil,  the  party  must  have  his 
abode  in  one  place,  with  the  intention  of  remaining 
there ;  for  without  such  intention  no  new  domicil 
can  be  gained,  and  the  old  will  not  be  lost.  See 
Domicil. 

ANIMUS  M0  RAND  I.  The  intention  to  re- 
main or  delay. 

ANIMUS  RECIPIENDI.  The  intention  of 
receiving. 

ANIMUS  REPUBLICANDI.  The  intention 
of  republishing  (as  a  will). 

ANIMUS  RESTITUENDI.  An  intention  of 
restoring.     Fleta,  lib.  3,  c.  2,  §  3. 

ANIMUS  REVERTENDI.  The  intention 
of  returning. 

A  man  retains  his  domicil  if  ho  leaves  it  animo 
revertendi;  In  re  Miller's  Estate,  3  Rawle  (Pa.) 
312,  24  Am.  Dec.  345  ;  4  Bla.  Com.  -:'.">  ;  2  Russ.  Cr. 
23;    Poph.   42,  52;    4  Coke  40.     See  Domicil. 

ANIMUS  REV0CANDI.  An  intention  to 
revoke.     1  Powell,  Dev.  695. 

ANIMUS  TESTANDI.  An  Intention  to 
make  a  testament  or  will. 

This  is  required  to  make  a  valid  will ;  for,  what- 
ever form  may  have  been  adopted,  if  there  was  no 
animus  testandi,  there  can  be  no  will.  An  idiot, 
for  example,  can  make  no  will,  because  be  can  have 
no  Intention;    Beach,  Wills  77. 


ANNALES 


200 


ANNONA 


ANNALES.  A  title  given  to  the  Year 
Books.  Burrill,  Law  Diet  Young  cattle; 
yearlings.     Cowell. 

ANNALS.  Masses  said  in  the  Romish 
church  for  the  space  of  a  year  or  for  any 
other  time,  either  for  the  sonl  of  a  person 
deceased,  or  for  the  benefit  of  a  person  liv- 
ing, or  for  both.     Aylif.  Parerg. 

ANNATES.  First-fruits  paid  out  of  spir- 
itual benefices  to  the  pope,  being  the  value 
of  one  year's  profit.     Cowell. 

ANNEXATION.  The  union  of  one  thing 
to  another. 

It  conveys  the  Idea,  properly,  of  fastening  a 
smaller  thing  to  a  larger;  an  incident  to  a  princi- 
pal. It  has  been  applied  to  denote  the  union  of 
Texas  to  the  United  States. 

Actual  annexation  includes  every  move- 
ment by  which  a  chattel  can  be  joined  or 
united  to  the  freehold.  Mere  juxtaposition, 
or  the  laying  on  of  an  object,  however  heavy, 
does  not  amount  to  annexation ;  Merritt  v. 
Judd,  14  Cal.  04. 

Constructive  annexation  is  the  union  of 
such  things  as  have  been  holden  parcel  of 
the  realty,  but  which  are  not  actually  an- 
nexed, fixed,  or  fastened  to  the  freehold. 
Sheppard,  Touchst.  4G9;  Amos  &  F.  Fixt. 
3d  ed.     See  Fixtures. 

ANNI  NUBILES  (Lat.  marriageable 
years).  The  age  at  which  a  girl  becomes  by 
law  fit  for  marriage;  the  age  of  twelve. 

ANNICULUS  (Lat).  A  child  of  a  year 
old.    Calvinus,  Lex. 

ANNO  DOMINI  (Lat  in  the  year  of  our 
Lord;  abbreviated  A.  D.).  The  computation 
of  time  from  the  birth  of  Christ. 

In  a  complaint,  the  year  of  the  alleged  of- 
fence may  be  stated  by  "A.  D.,"  followed  by 
words  expressing  the  year;  Com.  v.  Clark, 
4  Cush.  (Mass.)  590.  But  an  indictment  or 
complaint  which  states  the  year  of  the  com- 
mission of  the  offence  in  figures  only,  with- 
out prefixing  the  letters  "A.  D.,"  is  insuffi- 
cient; Com.  v.  McLoon,  5  Gray  (Mass.)  91, 
66  Am.  Dec.  354.  The  letters  "A.  D.,"  fol- 
lowed by  figures  expressing  the  year,  have 
been  held  sufficient ;  State  v.  Hodgeden,  3  Vt. 
481;  State  v.  Seamons,  1  G.  Greene  (la.) 
418;  State  v.  Reed,  35  Me.  489,  58  Am.  Dec, 
727;  1  Bennett  &  H.  Lead.  Cr.  Cas.  512;  but 
the  phrase,  or  its  equivalents,  may  be  dis- 
pensed with;  12  Q.  B.  834;  Engleman  v. 
State,  2  Ind.  91,  52  Am.  Dec.  494;  State  v. 
Munch,  22  Minn.  67;  but  see  Whitesides  v. 
People,  Breese  (111.)  21.  See  Whart  Prec. 
4th  ed.  (2)  n.  g. ;  Yeab  of  Oub  Lobd;  Induc- 
tion. 

ANNONA.  Barley;  corn;  grain;  a  yearly 
contribution  of  food,  of  various  kinds,  for 
support. 

Annona  porcum,  acorns;  annona  frumentum  hor- 
deo  admixtum,  corn  and  barley  mixed ;  annona 
panis,  bread  without  reference  to  the  amount.  Du 
Cange ;    Spelman,  Gloss. ;    Cowell. 


The  term  is  used  in  the  old  English  law, 
and  also  in  the  civil  law  quite  generally,  to 
denote  anything  contributed  by  one  person 
towards  the  support  of  another;  as,  si  quia 
mancipio  annonam  dederit  (if  any  shall  have 
given  food  to  a  slave)  ;  Du  Cange. 

ANNON/E  CIVILE S.  Yearly  rents  issuing 
out  of  certain  lands  and  payable  to  monas- 
teries. 

ANNOTATION.  In  Civil  Law.  The  an- 
swers of  the  prince  to  questions  put  to  him 
by  private  persons  respecting  some  doubtful 
point  of  law.     See  Rescript. 

Summoning  an  absentee ;  Dig.  1.  5. 

The  designation  of  a  place  of  deportation- 
Dig.  32.  1.  3. 

ANNOYANCE.  Discomfort;  vexation.  It 
is  held  to  mean  something  less  than  nuisance. 
25  S.  J.  30.     See  Nuisance, 

ANNUAL  ASSAY.  An  annual  trial  of  the 
gold  and  silver  coins  of  the  United  States,  to 
ascertain  whether  the  standard  fineness  and 
weight  of  the  coinage  is  maintained. 

At  every  delivery  of  coins  made  by  the  coiner  to 
a  superintendent,  it  is  made  the  duty  of  the  super- 
intendent, in  the  presence  of  the  assayer,  to  take 
indiscriminately  a  certain  number  of  pieces  of  each 
variety  for  the  annual  trial  of  coins,  the  nunioer  for 
gold  coins  being  not  less  than  one  piece  for  each  one 
thousand  pieces,  or  any  fractional  part  of  one 
thousand  pieces  delivered;  and  for  silver  coins,  one 
piece  for  each  two  thousand  pieces,  or  any  fractional 
part  of  two  thousand  pieces  delivered.  The  pieces 
so  taken  shall  be  carefully  sealed  up  in  an  envelope, 
properly  labelled,  stating  the  date  of  the  delivery, 
the  number  and  denominations  of  the  pieces  en- 
closed, and  the  amount  of  the  delivery  from  which 
they  were  taken.  These  sealed  parcels  containing 
the  reserved  pieces  shall  be  deposited  in  a  pyx,  des- 
ignated for  the  purpose  at  each  mint,  which  shall 
be  under  the  joint  care  of  the  superintendent  and 
assayer,  and  be  so  secured  that  neither  can  have 
access  to  its  contents  without  the  presence  of  the 
other,  and  the  reserved  pieces  in  their  envelopes 
from  the  coinage  of  each  mint  shall  be  transmitted 
quarterly  to  the  mint  at  Philadelphia.  A  record 
shall  also  be  kept  of  the  number  and  denomination 
of  the  pieces  so  delivered,  a  copy  of  which  shall  be 
transmitted  quarterly  to  the  director  of  the  mint; 
Sect.  40,  Act  of  Feb.  12,  1873  ;    U.  S.  R.  S.  §  3539. 

To  secure  a  due  conformity  In  the  gold  and  silver 
coins  to  their  respective  standards  and  weights,  it 
is  provided  by  law  that  an  annual  trial  shall  be 
made  of  the  pieces  reserved  for  this  purpose  at  the 
mint  and  its  branches,  before  the  judge  of  the  dis- 
trict court  of  the  United  States  for  the  eastern 
district  of  Pennsylvania,  the  comptroller  of  the  cur- 
rency, the  assayer  of  the  assay  office  at  New  York, 
and  such  other  persons  as  the  president  shall  from 
time  to  time  designate  for  that  purpose,  who  shall 
meet  as  assay  commissioners,  on  the  second  Wednes- 
day in  February  annually,  at  the  mint  in  Philadel- 
phia, to  examine  and  test,  in  the  presence  of  the 
director  of  the  mint,  the  fineness  and  weight  of  the 
coins  reserved  by  the  several  mints  for  this  pur- 
pose, and  may  continue  their  meetings  by  adjourn- 
ment, if  necessary  ;  and  if  a  majority  of  the  com- 
missioners shall  fail  to  attend  at  any  time  appoint- 
ed for  their  meeting,  then  the  director  of  the  mint 
shall  call  a  meeting  of  the  commissioners  at  such 
other  time  as  he  may  deem  convenient,  and  if  It 
shall  appear  that  these  pieces  do  not  differ  from  the 
standard  fineness  and  weight  by  a  greater  quantity 
than  is  allowed  by  law,  the  trial  shall  be  considered 
and  reported  as  satisfactory ;  but  If  any  greater 
deviation  from  the  legal  standard  or  weight  shall 
appear,  this  fact  shall  be  certified  to  the  president 


ANNUAL  ASSAY 


201 


ANNUITY 


of  the  United  States,  and  if,  on  a  view  of  the  cir- 
cumstances of  the  case,  he  shall  so  decide,  the  offi- 
cer or  officers  Implicated  in  the  error  shall  be 
thenceforward  disqualified  from  holding  their  re- 
spective offices;  §  48,  Act  of  Feb.  12,  1873  (U.  S.  R. 
S.  §  3547);  id.  §§  49,  50  (R.  S.  §§  3548,  3549).  As  to 
the  standard  weight  and  fineness  of  the  gold  and 
silver  coins  of  the  United  States,  see  sections  of  the 
last-cited  act.  The  limit  of  allowance  for  wastage 
is  fixed;     §  43,  Act  of  Feb.  12,  1873;    R.  S.  §  3542. 

For  the  purpose  of  securing  a  due  conformity  in 
the  weight  of  the  coins  of  the  United  States,  the 
brass  troy  pound  weight  procured  by  the  minister  of 
the  United  States  (Mr.  Gallatin)  at  London,  in  the 
year  1827,  for  the  use  of  the  mint,  and  now  in  thu 
custody  of  the  director  thereof,  shall  be  the  stand- 
ard troy  pound  of  the  mint,  of  the  United  States, 
conformably  to  which  the  coinage  thereof  shall  be 
regulated  ;  and  it  is  made  the  duty  of  the  director 
of  the  mint  to  procure  and  safely  keep  a  series  of 
standard  weights  corresponding  to  the  aforesaid 
troy  pound,  and  the  weights  ordinarily  employed  in 
the  transactions  of  the  mint  shall  be  regulated  ac- 
cording to  such  standards  at  least  once  in  every 
year  under  his  inspection,  and  their  accuracy  test- 
ed annually  In  the  presence  of  the  assay  commis- 
sioners on  the  day  of  the  annual  assay ;  Act  of 
Feb.  12,  1873;    R.   S.  §  3548. 

In  England,  the  accuracy  of  the  coinage  is  re- 
viewed once  in  about  every  four  years;  no  specific 
period  being  fixed  by  law.  It  Is  an  ancient  custom 
or  ceremony,  and  is  called  the  Trial  of  the  Pyx; 
which  name  it  takes  from  the  pyx  or  chest  in  which 
the  specimen-coins  are  deposited.  These  specimen- 
pieces  are  taken  to  be  a  fair  representation  of  the 
whole  money  coined  within  a  certain  period.  It 
having  been  notified  to  the  government  that  a  trial 
of  the  pyx  is  called  for,  the  lord  chancellor  issues 
his  warrant  to  summon  a  jury  of  goldsmiths  who, 
on  the  appointed  day,  proceed  to  the  Exchange 
Office,  Whitehall,  and  there,  in  the  presence  of  sev- 
eral privy  councillors  and  the  officers  of  the  mint, 
receive  the  charge  of  the  lord  chancellor  as  to 
their  Important  functions,  who  requests  them  to 
deliver  to  him  a  verdict  of  their  finding.  The  jury 
proceed  to  Goldsmiths'  Hall,  London,  where  assay- 
ing apparatus  and  all  other  necessary  appliances 
are  provided,  and,  the  sealed  packages  of  the  speci- 
men-coins being  delivered  to  them  by  the  officers  of 
the  mint,  they  are  tried  by  weight,  and  then  a  cer- 
tain number  are  taken  from  the  whole  and  melted 
into  a  bar,  from  which  the  assay  trials  are  made, 
and  a  verdict  is  rendered  according  to  the  results 
which  have  been  ascertained;  Encyc.  Brit,  titles 
Coinage,  Mint,  Money,  Numismatics. 

ANNUAL  INCOME.  The  annual  receipts 
from  property.     See  Income;  Tax. 

ANNUAL  RENT.  In  Scotch  Law.  Inter- 
est. 

To  avoid  the  law  agafnst  taking  interest,  a  yearly 
rent  was  purchased  ;  hence  the  term  came  to  sig- 
nify Interest ;  Bell,  Diet.  ;  Patcrson,  Comp.  §§  19, 
265. 

ANNUALLY.  Yearly;  returning  every 
year. 

As  applied  to  interest  it  is  not  an  under- 
taking to  pay  interest  at  the  end  of  one 
year  only,  but  to  pay  interest  at  the  end  of 
each  and  every  year  during  a  period  of  time, 
either  fixed  or  contingent;  Sparhawk  v. 
Wills,  6  Gray   (Mass.)   164. 

ANNUITY  (Lat.  annum,  yearly).  A  yearly 
sum  stipulated  to  be  paid  to  another  in  fee, 
or  for  life  or  years,  and  chargeable  only  on 
the  person  of  the  grantor.  Co.  Litt.  144  6; 
2  Bla.  Com.  40 ;  Lumley,  Ann.  1 ;  Mayor,  etc., 
of  City  of  New  Orleans  v.  Duplessis,  5  Mart. 
O.  S.  (La.)  312;  Dav.  Ir.  14;  Stephens'  Ex'rs 


v.    Milnor,    24    N.    J.    Eq.    358;    Wagstaff   t. 
Lowerre,  23  Barb.    (N.   Y.)    216. 

An  annuity  is  different  from  a  rent-charge, 
with  which  it  is  sometimes  confounded, — the 
annuity  being  chargeable  on  the  I 
merely,  and  so  far  personalty;  while  a  rent- 
charge  is  something  reserved  out  of  realty, 
Or  fixed  as  a  bunion  upon  the  estate  in  land; 
2  Bla.  Com.  40;  Rolle,  Abr.  226;  Horton  v. 
Cook,  10  Watts  (Pa.)  127,  36  Am.  Dec.  151. 
An  annuity  in  fee  is  said  to  be  a  per 
fee;  for,  though  transmissible,  as  is  real  es- 
tate of  inheritance;  Ainbl.  Ch.  782;  Challis. 
R.  P.  40;  liable  to  forfeiture  as  a  heredita- 
ment; 7  Coke,  34  a;  and  not  constitute 
sets  in  the  bands  of  an  executor,  it  lacks 
some  other  characteristics  of  realty.  The 
husband  is  not  entitled  to  curtesy,  nor  the 
wife  to  dower,  in  an  annuity ;  Co.  Litt.  32  a. 
It  cannot  be  conveyed  by  way  of  i; 
Wils.  224;  is  not  within  the  statute  of  frauds, 
and  may  be  bequeathed  and  assigned  as  per- 
sonal estate;  2  Ves.  Sen.  70;  4  B.  &  Aid.  59; 
Roscoe,  Real  Act.  68,  35;  3  Kent  460. 

To  enforce  the  payment  of  an  annuity,  an 
action  of  annuity  lay  at  common  law,  but 
when  brought  for  arrears  must  be  before  the 
annuity  determines;  Co.  Litt.  285.  In  case 
of  the  insolvency  or  bankruptcy  of  the  debt- 
or, the  capital  of  the  constituted  annuity  be- 
comes exigible;  La.  Civ.  Code,  art.  2760; 
stat.  6  Geo.  IV.  c.  16,  §§  54,  108;  5  Yes.  70S; 
4  id.  763;  1  Belt,   Snpp.  Ves.  30S,  431. 

Land  charged  with  an  annuity,  having  de- 
scended to  heirs  at  law  of  which  the  annu- 
itant is  one,  is  relieved  of  the  annuity  only 
pro  tanto;  but  queer e  if  the  annuitant  had 
acquired  the  same  right  by  purchase;  Ad- 
dams  v.  Heffernan,  9  Watts  (Pa.)   529. 

See  Chabge;  Life  Tables. 

ANNUL.  To  abrogate,  nullify,  or  abolish ; 
to  make  void. 

It  is  not  a  technical  word  and  there  is 
nothing  which  prevents  the  idea  from  being 
expressed  in  equivalent  words;  Woodson  v. 
Skinner,  22  Mo.  24. 

ANNULUS  ET  BACULUS  (Lat.  ring  and 
staff).  The  investiture  of  a  bishop  was  per 
annulum  et  oaculum  by  the  prince's  deliver- 
ing to  the  prelate  a  ring  and  pastoral  staff, 
or  crozier.    1  Sharsw.  Bla.  Com.  378. 

ANNUM,  DIEM  ET  VASTUM.  See  Year, 
Day  and  Waste. 

ANNUS  LUCTUS  (Lat).  The  year  of 
mourning.     Code,  5.  9.  2. 

It  was  a  rule  among  the  Romans,  and  also 
the  Danes  and  Saxons,  that  the  widows 
should  not  marry  infra  annum  luctus  (with- 
in the  year  of  mourning)  ;  1  Bla.  Com.  457. 

In  the  Transvaal  a  widower  may  not  re- 
marry within  three  months  and  a  widow 
within  300  days,  unless  by  dispensation.  In 
the  Orange  River  Colony  the  period  for  a 
widow  is  2S0  days. 


ANNUS  UTILIS 


202 


ANSWER 


ANNUS  UTILIS.  A  year  made  up  of 
available  or  serviceable  days.  Brissonius ; 
Calvinus,  Lex.  In  prescription,  the  period  of 
incapacity  of  a  minor,  etc.,  was  not  counted ; 
it  was  no  part  of  the  anni  utiles. 

ANNUUS  REDITUS.  A  yearly  rent;  an- 
nuity. 2  Sharsw.  Bla.  Com.  41 ;  Reg.  Orig. 
158  b. 

ANONYMOUS.     Without  name. 

Books  published  without  the  name  of  the  author 
are  said  to  be  anonymous:  Cases  in  the  reports  of 
■which  the  names  of  the  parties  are  not  given  are 
said  to  be  anonymous. 

An  anonymous  society  in  the  Mexican 
code  is  one  which  has  no  firm  name  and  is 
designated  by  the  particular  designation  of 
the  object  of  the  undertaking.  The  share- 
holders are  liable  for  debts  only  to  the  ex- 
tent of  their  shares. 

ANSWER.  A  defence  in  writing,  made  by 
a  defendant  to  the  charges  contained  in  a 
bill  or  information  filed  by  the  plaintiff 
against  him  in  a  court  of  equity. 

In  case  relief  is  sought  by  the  bill,  the 
answer  contains  both  the  defendant's  de- 
fence to  the  case  made  by  the  bill,  and  the 
examination  of  the  defendant,  on  oath,  as 
to  the  facts  charged  in  the  bill,  of  which 
discovery  is  sought;  Gresley,  Eq.  Ev.  19; 
Jeremy's  Mitf.  Eq.  PL  15,  16.  These  parts 
were  kept  distinct  from  each  other  in  the 
civil  law;  their  union,  in  chancery,  has 
caused  much  confusion,  in  equity  pleading ; 
Langd.  Eq.  PL  41;  Story,  Eq  PL  §  850; 
Dan.  Ch.  PL  &  Pr.  *711. 

As  to  the  form  of  the  answer,  it  usually 
contains,  in  the  following  order:  the  title, 
specifying  which  of  the  defendants  it  is  the 
answer  of,  and  the  names  of  the  plaintiffs 
in  the  cause  in  which  it  is  filed  as  answer; 
8  Ves.  79;  11  id.  62;  1  Russ.  441;  see  Mc- 
Lure  v.  Colclough,  17  Ala.  89 ;  a  reservation 
to  the  defendant  of  all  the  advantages  which 
might  be  taken  by  exception  to  the  bill, 
which  is  mainly  effectual  in  regard  to  other 
suits;  Beames,  Eq.  PL  46;  Surget  v.  Byers, 
1  Hempst.  715,  Fed.  Cas.  No.  13,629;  O'Niell 
v.  Cole,  4  Md.  107 ;  the  suostanee  of  the  an- 
swer, according  to  the  defendant's  knowl- 
edge, remembrance,  information,  and  belief, 
in  which  the  matter  of  the  bill,  with  the  in- 
terrogatories founded  thereon,  are  answered, 
one  after  the  other,  together  with  such  ad- 
ditional matter  as  the  defendant  thinks  nec- 
essary to  bring  forward  in  his  defence,  ei- 
ther for  the  purpose  of  qualifying  or  adding 
to  the  case  made  by  the  bill,  or  to  state  a 
new  case  on  his  own  behalf ;  a  general  trav- 
erse or  denial  of  all  unlawful  combinations 
charged  in  the  bill,  and  of  all  other  matters 
therein  contained  not  expressly  answered. 

The  answer  must  be  upon  oath  of  the  de- 
fendant, or,  if  of  a  corporation,  under  its 
seal ;  Langd.  Eq.  PL  §  78 ;  Bisp.  Eq.  9 ;  Roys- 
ton  v.  Royston,  21  Ga.  161 ;  Lahens  v.  Fielden, 
1  Barb.    (N.  Y.)   22;  see  Maryland  &  N.  Y. 


Coal  &  Iron  Co.  v.  Wingert,  8  Gill  (Md.) 
170;  1  Dan.  Ch.  PL  &  Pr.  *734;  Van  Valten- 
burg  v.  Alberry,  10  la.  264 ;  unless  the  plain- 
tiff waives  an  oath;  Story,  Eq.  PL  §  824; 
Bingham  v.  Yeomans,  10  Cush.  (Mass.)  58; 
Chace  v.  Holmes,  2  Gray  (Mass.)  431;  Clem- 
ents v.  Moore,  6  Wall.  (U.  S.)  299,  18  L.  Ed. 
786;  Brown  v.  Bulkley,  14  N.  J.  Eq.  306; 
Wallwork  v.  Derby,  40  111.  527;  in  which 
case  it  must  generally  be  signed  by  the  de- 
fendant; 6  Ves.  171,  285;  Cooper,  Eq.  PL 
326;  Van  Valtenburg  v.  Alberry,  10  la.  2G4 ; 
and  must  be  signed  by  counsel;  Story,  Eq. 
PL  §  876 ;  unless  taken  by  commissioners ; 
Davis  v.  Davidson,  4  McL.  136,  Fed.  Cas.  No. 
3,631 ;  1  Dan.  Ch.  PL  &  Pr.  *732.  It  is  held 
that  a  corporation  cannot  be  compelled  to 
answer  under  oath ;  Colgate  v.  Compagnie 
Franchise  du  Telegraphe  De  Paris  a  N.  Y., 

23  Fed.  82;  Coca-Cola  Co.  v.  Gay-Ola  Co., 
200  Fed.  720,  119  C.  C.  A.  164.  Where  the 
bill  waives  an  answer  under  oath,  the  waiv- 
er is  ineffectual  unless  accepted ;  Heath  v. 
Ry.  Co.,  Fed.  Cas.  No.  6,306 ;  and  if  the  de- 
fendant, notwithstanding  the  waiver,  an- 
swers under  oath,  the  answer  has  the  same 
effect  as  if  there  had  been  no  waiver;  Con- 
ley  v.  Nailor,  118  U.  S.  127,  6  Sup.  Ct.  1001, 
30  L.  Ed.  112;  Woodruff  v.  R.  Co.,  30  Fed. 
91 ;  but  it  is  held  that  even  if  its  answer 
when  sworn  to  is  evidence  under  the  equity 
rule,  it  cannot  prove  an  affirmative  defence ; 
Coca-Cola  Co.  v.  Gay-Ola  Co.,  200  Fed.  720, 
119  C.  C.  A.  164  (C.  C.  A.  6  Circ). 

Where  bill  waives  answer  under  oath,  the 
bill  ceases  to  be  a  bill  of  discovery,  and  the 
defendant  need  not  answer  interrogatories 
therein;  McFarland  v.  Bank,  132  Fed.  399. 
An  averment  that  "defendant  has  no  knowl- 
edge or  belief"  as  to  defendant's  corporate 
capacity  is  sufficient  to  put  plaintiff  on  proof 
thereof;  W.  L.  Wells  Co.  v.  Mfg.  Co.,  198 
U.   S.   177,  25  Sup.   Ct.  640,  49  L.   Ed.  1003. 

As  to  substance,  the  answer  must  be  full 
and  perfect  to  all  the  material  allegations  of 
the  bill,  confessing  and  avoiding,  denying  or 
traversing,  all  the  material  parts ;  Comyns. 
Dig.  Chauncery,  K,  2 ;  Mayer  v.  Galluchat,  6 
Rich.  Eq.  (S.  C.)  1 ;  Beall  v.  Blake,  10  Ga.  449 ; 
Shotwell's  Adm'r  v.  Struble,  21  N.  J.  Eq.  31 ; 

24  Beav.  421 ;  not  literally  merely,  but  an- 
swering the  substance  of  the  charge;  Mitf. 
Eq.  PL  309 ;  Grady  v.  Robinson,  28  Ala.  289 ; 
Pitts  v.  Hooper,  16  Ga.  442 ;  Smith  v.  Loomis, 
5  N.  J.  Eq.  60 ;  and  see  Hogencamp  v.  Acker- 
man,  10  N.  J.  Eq.  267;  must  be  responsive; 
Howell  v.  Robb,  7  N.  J.  Eq.  17;  Chambers  v. 
Warren,  13  111.  318 ;  Mann  v.  Betterly,  21  Vt. 
326 ;  and  must  state  facts,  and  not  arguments, 
directly  and  without  evasion ;  Story,  Eq.  PL  § 
852 ;  Spivey  v.  Frazee,  7  Ind.  661 ;  Gates  v. 
Adams,  24  Vt.  70;  Thompson  v.  Mills,  39  N. 
C.  390;  Gamble  &  Johnston  v.  Johnson,  9 
Mo.  605 ;  without  scandal ;  Langdon  v.  Pick- 
ering, 19  Me.  214;  Burr  v.  Burton,  18  Ark. 
215;  or  impertinence;  Langdon  v.  Goddard, 


ANSWER 


203 


ANSWER 


3  Sto.  13,  Fed.  Cas.  No.  8,061;  6  Beav.  558; 
Gier  v.  Gregg,  4  McL.  202,  Fed.  Cas.  No.  5,- 
406;  Conwell  v.  Claypool,  8  Blackf.  (Ind.) 
124.  See  10  Sim.  345 ;  17  Eng.  L.  &  Eq.  509 ; 
Saltmarsh  v.  Bower  &  Co.,  22  Ala.  221  ;  Mc- 
Intyre  v.  Trustees  of  Union  College,  6  Paige 
(N.  Y.)  239;  U.  S.  v.  McLaughlin,  24  Fed. 
823;  Crammer  v.  Water  Co.,  39  N.  J.  Eq.  76; 
6  Ves.  456. 

Under  the  modern  English  practice  the 
form  of  the  answer  has  been  much  simpli- 
fied;  15  &  16  Vict.  c.  86,  §  17.  Under  the 
General  Orders  of  1852  a  form  was  adopted, 
though  scarcely  necessary  in  view  of  the 
absence  of  all  technicality ;  2  Dan.  Ch.  Pr. 
724;  3  id.  2139.  In  the  United  States  gener- 
ally the  answer  has  been  simplified,  but  the 
variations  from  the  old  practice  consist 
mainly  in  dividing  the  answer  into  numbered 
paragraphs,  adjusting  its  general  form  to 
the  bill  as  now  drawn  (see  Bill),  and  in 
omitting  the  clause  reserving  exceptions 
(though  in  practice  this  is  very  frequently 
retained),  and  the  clause  denying  combina- 
tion, retaining  merely,  to  form  an  issue  on 
them,  a  general  traverse  of  all  allegations 
not  expressly  answered. 

A  material  allegation  in  a  bill,  which  is 
neither  expressly  admitted  or  denied,  is 
deemed  to  be  controverted  ;  Glos  v.  Randolph, 
133  111.  197,  24  N.  E.  426;  rates  v.  Thomp- 
son, 44  111.  App.  145. 

Insufficiency  of  answer  is  a  ground  for  ex- 
ception when  some  material  allegation, 
charge,  or  interrogatory  is  unanswered  or 
not  fully  answered ;  West  v.  Williams,  1 
Md.  Ch.  Dec.  358;  Hardeman  v.  Harris,  7 
How.  (U.  S.)  726,  12  L.  Ed.  889;  Lea  v. 
Vanbibber,  6  Humph  r.  (Tenn.)  18.  See 
Lanum  v.  Steel,  10  Humphr.  (Tenn.)  280; 
McCormick  v.  Chamberlin,  11  Paige  (N.  Y.) 
543;  American  Loan  &  Trust  Co.  v.  R.  Co., 
40  Fed.  3S4;  1  Dan.  Ch.  PI.  &  Pr.  700; 
Blaisdell  v.  Stevens,  16  Vt.  179. 

Where  the  defendant  in  equity  suffers  a 
default  he  does  not  admit  facts  not  alleged 
in  the  bill  nor  conclusions  of  the  pleader 
from  the  facts  stated;  Cramer  v.  Bode,  24 
111.  App.  219. 

An  answer  may,  in  some  cases,  be  amend- 
ed ;  2  Bro.  C.  C.  143 ;  2  Ves.  85 ;  to  correct  a 
mistake  of  fact ;  Ambl.  292 ;  1  P.  Wms.  297 ; 
but  not  of  law ;  Ambl.  65 ;  nor  any  mistake 
in  a  material  matter  except  upon  evidence 
of  surprise ;  Howe  v.  Russell,  36  Me.  124 ; 
Smith  v.  Babcock,  3  Sumn.  5S3,  Fed.  Cas. 
No.  13,008;  1  Bro.  C.  C.  319;  and  not,  it 
seems,  to  the  injury  of  others ;  Story,  Eq.  PI. 
§  904;  Bell's  Adm'r  v.  Hall,  5  N.  J.  Eq.  49. 
The  court  may  permit  an  answer  to  be 
amended  even  after  the  announcement  of  the 
decision  of  the  cause;  Arnett  v.  Welch's 
Ex'rs,  46  N.  J.  Eq.  543,  20  Atl.  48.  A  supple- 
mental answer  may  be  filed  to  introduce  now 
matter ;  Suydam  v.  Truesdale,  6  McL.  459,  j 
Fed.    Cas.    No.    13,656;    U.    S.    v.    Morris,   1\ 


Mackey  (D.  C.)  8;  or  correct  mlstal  1 
Coll.  133;  Graham  v.  Tankersley,  15  Ala. 
634;  Carey  v.  Ector,  7  Ga  millard  v. 

Suydam,  S  Blackf.  (Ind.)  24;  which  I 
sidered  as  forming  a  part  of  the  origii 
swer.    See  Discoveby  ;  Mitt.  Eq.  PL  24 

The  effect  of  an  answer  must  be  • 
by  two  witnesses  or  by  one  witness  and  cor- 
roborating evidence ;  but  the  answer  of  a 
corporation  is  not  entitled  to  the  same  pro- 
bative force  as  that  of  an  individual  ;  I 
Eq.  PI.  §  87,  citing  Union  Bank  v.  Geary,  5 
Pet  (U.  S.)  Ill,  8  L.  Ed.  60;  and  the  rule 
does  not  apply  where  there  is  a  mere  denial 
made  for  want  of  knowledge;  Blair  v.  Silver 
Peak  Mines,  93  Fed.  332. 

For  an  historical  account,  see  2  Brown, 
Civ.  Law  371,  n. ;  Barton,  Suit  in  Eq. ;  Lang- 
dell's  Summary  of  Equity  41. 

By  the  Equity  Rules  of  the  Supreme  Court 
of  the  United  States,  In  effect  Febru; 
1913  (198  Fed.  xix;  226  U.  S.  appendix) 
every  defence  to  a  bill  in  point  of  law,  which 
might  heretofore  have  been  made  by  demur- 
rer or  plea,  shall  be  made  by  motion  to  dis- 
miss or  by  answer.  Defences  formerly  pre- 
sentable by  plea  in  bar  or  abatement  shall 
be  made  in  the  answer.  It  shall  in  short 
and  simple  terms  set  out  the  defence  to  each 
claim  in  the  bill,  omitting  any  mere  statement 
of  evidence  and  avoiding  any  general  denial 
of  the  averments  of  the  bill,  but  specifically 
admitting  or  denying  or  explaining  the  facts 
upon  which  the  plaintiff  relies,  unless  defend- 
ant is  without  knowledge,  in  which  case  he 
shall  so  state,  such  statement  operating  as  a 
denial.  It  may  state  as  many  defences  in  the 
alternative,  regardless  of  consistency,  as  the* 
defendant  deems  essential.  Counter-claims 
arising  out  of  the  transaction  must  be  stated. 
Any  set-off  or  counter-claim,  which  might  be 
the  subject  of  any  independent  equity  suit, 
may   be  set  up  without  cross-bill. 

In  Practice.  The  declaration  of  a  fact  by 
a  witness  after  a  question  has  been  put, 
asking  for  it. 

ANTAP0CHA  (Lat).  An  instrument  by 
which  the  debtor  acknowledges  the  debt  due 
the  creditor,  and  binds  himself.  A  copy  of 
the  apocha  signed  by  the  debtor  and  deliv- 
ered to  the  creditor.     Calvinus,  Lex. 

ANTE  JURAMENTUM  (Lat;  called  also 
J  ur  amentum  Calumnies).  The  oath  former- 
ly required  of  the  parties  previous  to  a  suit, 
— of  the  plaintiff  that  he  would  prosecute, 
and  of  the  defendant  that  he  was  innocent. 
Jacobs,  Diet;  Whishaw. 

ANTE  LITEM  M0TAM.  Before  suit 
brought. 

ANTE-NUPTIAL.  Before  marriage;  be- 
foi'e  marriage,  with  a  view  to  entering  into 
marriage.     See  Contemplation  of  Mabbiage. 

ANTE-NUPTIAL      CONTRACT.      A      con- 
tract made  before  marriage. 
The  term  is  most  generally  applied  to  a 


ANTE-NUPTIAL  CONTRACT 


204 


ANTE-NUPTIAL  CONTRACT 


contract  entered  into  between  a  man  and  wo- 
man in  contemplation  of  their  future  mar- 
riage, and  in  that  case  it  is  called  a  mar- 
riage contract. 

A  wife  may  waive  all  right  to  any  portion 
of  the  estate  of  her  husband  by  an  ante-nup- 
tial contract,  and  this  is  binding  on  her  un- 
less fraud,  advantage  or  collusion  can  be 
shown;  Edwards  v.  Martin,  39  111.  App.  145. 
An  ante-nuptial  agreement  that  the  wife 
shall  claim  no  right  of  dower  does  not  de- 
prive her  of  her  distributive  share  in  the 
husband's  personal  property:  Pitkin  v.  Peet, 
87  la.  268,  54  N.  W.  215.  A  contract  by  which 
each  agreed  to  make  no  claim  to  the  prop- 
erty of  the  one  dying  first  is  void  so  far  as 
dower  is  concerned,  as  it  makes  no  provision 
in  lieu  thereof;  Brandon  v.  Dawson,  51  Mo. 
App.  237. 

Conveyances  made  by  one  of  two  persons 
about  to  be  married,  usually  called  mar- 
riage settlements. 

They  are  usually  made  in  contemplation 
of  marriage,  for  the  benefit  of  the  married 
pair,  or  one  of  them,  or  for  the  benefit  of 
some  otber  persons  ;  as  their  children.  They 
may  be  of  either  personal  or  real  estate. 
Such  settlements  vest  the  property  in  trus- 
tees upon  specified  terms,  usually,  for  the 
benefit  of  the  husband  and  wife  during  their 
joint  lives,  and  then  for  the  benefit  of  the 
survivor  for  life,  and  afterwards  for  the 
benefit  of  children. 

Ante-nuptial  agreements  of  this  kind  will 
be  enforced  in  equity  by  a  specific  perform- 
ance of  them,  provided  they  are  fair  and 
valid  and  the  intention  of  the  parties  is  con- 
sistent with  the  principles  and  policy  of 
law ;  Barnett  v.  Goings,  8  Blackf.  (Ind.)  284, 
44  Am.  Dec.  766;  Eaton  v.  Tillinghast.  4  R. 
I.  276;  Whichcote  v.  Lyle's  Ex'rs,  28  Pa. 
73;  Magniac  v.  Thompson,  7  Pet.  (U.  S.)  348, 
8  L.  Ed.  709;  Neves  v.  Scott,  9  How.  (U.  S.) 
196,  13  L.  Ed.  102.  Settlements  after  mar- 
riage, if  made  in  pursuance  of  an  agreement 
In  writing  entered  into  prior  to  the  mar- 
riage, are  valid  both  against  creditors  and 
purchasers ;  Reinhart  v.  Miller,  22  Ga.  402, 
68  Am.  Dec.  506. 

A  conveyance  by  the  husband  or  wife 
prior  to  marriage,  which,  if  permitted,  would 
deprive  the  other  of  his  or  her  marital  rights 
in  the  property  conveyed. 

In  Chandler  v.  Hollingsworth,  3  Del.  Ch. 
99,  considering  equitable  relief  against  ante- 
nuptial agreements,  Bates,  Ch.,  held  that  the 
husband  will  be  protected  against  a  vol- 
untary conveyance  or  settlement,  by  his  in- 
tended wife,  of  all  her  estate,  to  the  exclu- 
sion of  the  husband,  made  pending  an  en- 
gagement of  marriage,  without  his  knowledge, 
even  in  the  absence  of  express  misrepresen- 
tation or  deceit,  and  whether  the  husband 
knew  of  the  existence  of  the  property  or 
not;  and  that  the  wife's  dower  will  be  pro- 
tected, against  the  voluntary  conveyance  of 


the  husband,  under  like  circumstances.  A 
settlement  after  marriage  conveying  prop- 
erty in  execution  of  an  oral  ante-nuptial 
agreement  is  void  as  against  creditors;  2  De 
G.  &  J.  76.  But  they  have  been  allowed; 
Hussey  v.  Castle,  41  Cal.  239;  Brown  v. 
Lunt,  37  Me.  423.  By  an  oral  ante-nuptial 
agreement  a  husband  agreed  to  convey  to 
trustees,  when  it  should  come  into  posses- 
sion, a  reversion  belonging  to  his  wife  to  be 
held  on  certain  trusts,  which  under  volun- 
tary settlements  would  not  be  valid  as 
against  creditors.  In  a  post-nuptial  writing 
the  husband  covenanted  to  perform  the  oral 
agreement.  He  afterwards  became  bank- 
rupt. It  was  held  that,  the  one  agreement 
being  oral  and  the  other  gratuitous,  the 
trustee  in  bankruptcy  would  not  be  order- 
ed to  perform;  [1901]  2  Ch.  145.  It  has 
been  held  that  marriage  is  sufficient  part 
performance  to  make  the  contract  binding; 
Nowack  v.  Berger,  133  Mo.  24,  34  S.  W.  489, 
31  L.  R.  A.  810,  54  Am.  St.  Rep.  6G3;  Chand- 
ler v.  Hollingsworth,  3  Del.  Ch.  99. 
See  Marriage  Settlement. 

ANTEDATE.  To  put  a  date  to  an  instru- 
ment of  a  time  before  the  time  it  was  writ- 
ten. 

A  NT  EN  AT  I  (Lat.  born  before).  Those 
born  in  a  country  before  a  change  in  its 
political  condition  such  as  to  affect  their  al- 
legiance. 

The  term  is  ordinarily  applied  by  American 
writers  to  denote  those  born  in  this  country  prior 
to  the  Declaration  of  Independence.  It  is  distin- 
guished from  postnati,  those  born  after  the  event. 

As  to  the  rights  of  British  antenati  in  the 
United  States,  see  Apthorp  v.  Backus,  Kirby 
(Conn.)  413,  1  Am.  Dec.  26;  Miller  v.  Eng- 
lish, 6  N.  J.  Eq.  305;  Adams  v.  Ryerson,  6 
N.  J.  Eq.  337 ;  Kilham  v.  Ward,  2  Mass.  236, 
244;  Jackson  v.  Wright,  4  Johns.  (N.  Y.)  75; 
Hunter  v.  Fairfax's  Devisee,  1  Munf.  (Va.) 
218;  Com.  v.  Bristow,  6  Call  (Va.)  60; 
Jackson's  Lessee  v.  Burns,  3  Binn.  (Pa.)  75 ; 
Dawson  v.  Godfrey,  4  Cra.  (U.  S.)  321,  2  L. 
Ed.  634;  Inglis  v.  Sailor's  Snug  Harbor,  3 
Pet.  (U.  S.)  99,  7  L.  Ed.  617.  As  to  the  use 
of  the  term  in  England,  see  7  Coke  1,  27; 
2  B.  &  C.  779;  5  id.  771;.  1  Wood.  Lect. 
382;  Postnati. 

ANTHROPOMETRY.  A  word  given  by  a 
French  savant,  Alphonse  Bertillon,  to  a  sys- 
tem of  identification  depending  on  the  un- 
changing character  of  certain  measurements 
of  parts  of  the  human  frame.  It  was  largely 
adopted  after  its  introduction  in  France  in 
1SS3,  but  fell  into  disfavor  as  being  costly 
and  as  liable  to  error.  It  has  given  place  to 
the  "finger  print"  system  devised  by  Francis 
Galton,  which  was  adopted  in  Bengal  by  the 
Indian  government  in  1S97  and  in  England 
three  years  later.  Encycl.  Br.  Anthropom- 
etry.    This  method  is  in  use  also  in  Ger- 


ANTHROPOMETRY 


205 


ANTINOMIA 


many    and    Italy;    in   other    countries   both 
systems  are  used ;  4  Towns.  Cr.  Law  301. 

See  report  of  United  States  Commissioner 
of  Education,  1S95-G,  vol.  2,  c.  28,  where  the 
Bertillon  system  is  fully  described  ami  stat- 
utes of  Massachusetts,  New  York  Pennsyl- 
vania, etc.,  are  collected.  See  also  Wigmore, 
Jud.  Proof  79. 

The  Bertillon  system  was  based  upon:  (1) 
The  almost  altsolute  immutability  of  the  hu- 
•  man  frame  after  the  twentieth  year  of  age; 
the  growth  thereafter,  being  only  of  the 
thigh  bone,  is  so  little  that  it  is  easy  to  make 
allowance  for  it.  (2)  The  diversity  of  di- 
mension of  the  human  skeleton  of  different 
subjects  is  so  great  that  it  is  difficult,  if  not 
impossible,  to  find  two  individuals  whose 
bony  structure  is  even  sufficiently  alike  to 
make  confusion  between  them  possible.  (3) 
The  facility  and  comparative  precision  with 
which  certain  dimensions  of  the  skeleton  may 
be  measured  in  the  living  subject  by  calipers 
of  simple  construction.  The  measurements 
which,  as  the  result  of  minute  criticism,  have 
been  preferred,  are  as  follows:  (1)  Height 
(man  standing) ;  (2)  reach  (finger  tip  to  finger 
tip);  (3)  trunk  (man  sitting);  (4)  length;  (5) 
width;  (G)  length  of  right  ear;  (7)  width  of 
right  ear;  (8)  length  of  left  foot;  (9)  length 
of  left  middle  finger;  (10)  length  of  left  little 
finger;  (11)  length  of  left  forearm. 
See  Rogues'  Gallery. 

ANTI-MANIFESTO.  The  declaration  of 
the  reasons  which  one  of  the  belligerents 
publishes,  to  show  that  the  war  as  to  him  is 
defensive.     Wolffius  §  1187. 

ANTI-TRUST  ACTS.  Federal  and  state 
statutes  to  protect  trade  and  commerce  from 
unlawful  restraints  and  monopolies.  See  U. 
S.  v.  Knight  Co.,  156  U.  S.  1,  15  Sup.  Ct.  249, 
39  L.    Ed.  325;    Restraint  of  Trade. 

ANTICHRESIS.  In  Civil  Law.  An  agree- 
ment by  which  the  debtor  gives  to  the  cred- 
itor the  income  from  the  property  which  he 
has  pledged,  in  lieu  of  the  interest  on  his 
debt.     Guyot,  Rupert.;   Story  Bailm.  §  344. 

It  is  analogous  to  the  Welsh  mortgage  of  the 
common  law.  In  the  French  law,  if  the  income  was 
more  than  the  interest,  the  debtor  was  entitled  to 
demand  an  account  of  the  income,  and  might  claim 
any  excess  ;  La.  Civ.  Code,  2085.  See  Dig.  20.  1.  11  ; 
id.  13.  7.  1;  Code,  8.  28.  1;  Livingston's  Ex'x  v 
Story,  11  Pet.  (U.  S.)  351,  9  L.  Ed.  74G  ;  1  Kent  137; 
Calderwood  v.   Calderwood,  23   La.  Ann.  658. 

ANTICIPATION  (Eat.  ante,  before,  caprre, 
to  take).  The  act  of  doing  or  taking  a  thing 
before  its  proper  time. 

In  deeds  of  trust  there  is  frequently  a  provision 
that  the  income  of  the  estate  shall  be  paid  by  the 
trustee  as  it  shall  accrue,  and  not  by  way  of  antici- 
pation. A  payment  made  contrary  to  such  pro- 
vision would  not  be  considered  as  a  discharge  of  the 
trustee;    Bisp.   Eq.  104. 

As  to  the  use  of  the  term  in  patent  law, 
see  Patent. 

ANTICIPATORY  BREACH  OF  CON- 
TRACT.    See  Breach. 


ANTINOMIA.  In  Roman  Law.  A  r  ox 
apparent   contradiction    or   inconsisten 

the  laws.     Merlin,  liipert. 

It  Is  sometimes  used  as  an  English  word,  and 
spelled    Antinomy. 

ANTIQUA  CUSTUMA  (L.  Eat  ancient 
custom).  The  duty  due  upon  wool,  woolfeils, 
and  bather  under  the  statute  3  Edw.  I. 

The  distinction  between  antiqua  and  nova  <uttuma 
arose  upon  the  imposition  of  an  increased  duty  up- 
on the  same  articles,  in  the  twenty-second  year  of 
his   reign  ;     Bacon,    Abr.    Smuggling,   C.  1. 

ANTIQUA   STATUTA.     Also  called    I 
Statute.     English  statutes  from  the  time  of 
Richard    First    to    Edward    Third.       B 
Hist.  Eng.   Law  227.     See  Nova   Statlta. 

ANTIQUARE.  In  Roman  Law.  To  resolve 
a  Conner  law  or  practice;  to  reject  or  vote 
against  a  new  law;  to  prefer  the  old  law. 
Those  who  voted  against  a  proposed  law 
wrote  on  their  ballots  the  letter  "A,"  the  in- 
itial of  antiquo,  I  am  for  the  old  law;  Cal- 
vin ;    Black,  Diet 

ANTIQUITIES.  The  act  of  June  8,  190G, 
provides  for  the  punishment  of  any  person 
who  shall  injure  or  destroy,  etc.,  any  historic 
or  prehistoric  ruin,  or  object  of  antiquity,  on 

any  government  lands.     See  La.ndmakks. 

ANTITHETARIUS.  In  Old  English  Law. 
A  man  who  endeavors  to  discharge  himself 
of  the  crime  of  which  he  is  accused,  by  re- 
torting the  charge  on  the  accuser.  lie  dif- 
fers from  an  approver  in  this,  that  the  lat- 
ter does  not  charge  the  accuser,  but  others; 
Jacobs,  Law  Diet 

ANY.  Some;  one  out  of  many;  an  in- 
definite number. 

It  is  synonymous  with  "either;"  State  v. 
Antonio,  3  Brev.  (S.  C.)  5C2.  3  Wheel.  Trim. 
Law  ('as.  508;  and  is  given  the  full  force  of 
'(very"  or  "all";  Logan  v.  Small,  43  Mo. 
254;  4  Q.  B.  D.  400;-  MeMurray  v.  Brown, 
91  U.  S.  2G5,  23  L.  Ed.  321;  L.  B.  5  II.  L. 
134;  but  its  generality  may  be  restricted  by 
the  context;   6  Q.  B.  D.  GC7. 

ANY  TERM  OF  YEARS.  In  Massachu- 
setts, this  term,  in  the  statutes  relating  to 
additional  punishment,  means  not  less  than 
two  years.  Ex  parte  Seymour.  11  Pick. 
(Mass.)  40:  Ex  parte  Dick,  id.  86;  Ex  parte 
White,  id.  90;    Ex  parte  Stevens,  id.  !M. 

APANAGE.  In  French  Law.  A  portion 
set  apart  for  the  use  and  support  of  the 
younger  ones,  upon  condition,  however,  that 
it  should  revert,  upon  failure  of  male  issue, 
to  his  original  donor  and  his  heirs.  Spel- 
man,  Gloss. 

APARTMENT.  A  part  of  a  house  occupied 
by  a  person,  while  the  rest  is  occupied  by 
another  or  others.  7  M.  &  G.  95 ;  6  Mod. 
214 ;  Woodf.  L.  &  T.  (1st  Am.  ed.)  6G0. 
"Apartments  is  a  proper  description  of  the 
premises  so  occupied  :"   7  M.  &  G.  95. 

The  occupier  of  part  of  a  house,  where  the 


APARTMENT 


206 


APICES  LITIGANDI 


landlord  resides  on  the  premises  and  retains 
the  key  of  the  outer  door,  is  held  a  mere 
lodger,  and  is  not  a  person  occupying  "as 
owner  or  tenant;"    7  M.  &  G.  85. 

If  a  house,  originally  entire,  be  divided 
into  several  apartments,  with  an  outer  door 
to  each  apartment,  and  no  communication 
with  each  other,  the  several  apartments 
shall  lie  rated  as  distinct  mansion  houses; 
but  if  the  owner  live  therein,  all  the  unten- 
anted apartments  shall  be  considered  as 
parts  of  his  house;  G  Mod.  214. 

A  flat  or  flat  house  is  a  building  consisting 
of  more  than  one  story  in  which  there  are 
one  or  more  suites  of  rooms  on  each  floor 
equipped  for  private  house-keeping  purposes. 
An  apartment  house  is  either  a  building  oth- 
erwise termed  a  flat  or  it  is  a  building  di- 
vided into  separate  suites  of  rooms  intended 
for  residence,  but  commonly  without  facili- 
ties for  cooking ;  Lignot  v.  Jaekle,  72  N.  J. 
Eq.  233,  65  Atl.  221. 

By  the  lease  of  apartments  in  a  building, 
in  a  town,  for  the  purpose  of  trade,  the 
lessee  takes  only  such  interests  in  the  sub- 
jacent lands  as  is  dependent  upon  the  en- 
joyment of  the  apartments  rented  and  neces- 
sary thereto ;  and  if  they  are  totally  destroy- 
ed by  fire,  this  interest  ceases;  McMillan  v. 
Solomon,  42  Ala.  356,  94  Am.  Dec.  654.  See 
Cunningham  v.  Entrekin,  34  W.  N.  C.  (Pa.) 
353. 

In  an  indictment  for  "entering  a  room  or 
apartment,  with  the  intention  to  commit  lar- 
ceny," it  is  right  to  charge  the  ownership  of 
the  room  to  be  his  who  rented  it  from  one 
who  had  the  general  supervision  and  control 
of  the  whole  house,  and  occupied  the  same 
as  a  lodger ;   People  v.  St.  Clair,  38  Cal.  137. 

See  Flat. 

APERTA  BREVIA.  Open,  unsealed  writs. 
Rap.  &  Lawr.  Law  Diet. 

APEX  JURIS  (Lat.  the  summit  of  the 
law).  A  term  used  to  indicate  a  rule  of  law 
of  extreme  refinement.  A  term  used  to  de- 
note a  stricter  application  of  the  rules  of 
law  than  is  indicated  by  the  phrase  summum 
jus.  Dennis  v.  Ludlow,  2  Caines  (N.  Y.)  117; 
Ex  parte  Foster,  2  Sto.  143,  Fed.  Cas.  No. 
4,960;  Hinsdale  v.  Miles,  5  Conn.  334;  1 
Burr.  341 ;  14  East  522.  See  Co.  Litt.  3046 ; 
Wing.  Max.  19 ;  Maxims,  apices  juris,  etc. 

APHASIA.  Loss  of  the  power  of  using 
words  properly,  of  comprehending  them 
when  spoken  or  written  or  of  remembering 
the  nature  and  uses  of  familiar  objects. 
Sensory  aphasia  or  apraxia  is  an  inability 
to  recognize  the  use  or  import  of  objects  or 
the  meaning  of  words,  and  includes  word 
blindness  and  word  deafness,  visual  and 
auditory  asphasia.  Motor  asphasia  is  a  loss 
of  memory  of  the  efforts  necessary  to  pro- 
nounce words,  and  often  includes  agraphia. 
or  the  inability  to  write  words  of  the  desired 
meaning. 


APICES  LITIGANDI.  Extremely  fine 
points  or  subtleties  of  litigation  neurly  equiv- 
alent to  the  modern  phrase  "sharp  practice." 
Rap.  &  Lawr.  Law  Diet.,  citing  3  Burr.  1243. 

APOCA  (Lat).  A  writing  acknowledging 
payments;    acquittance. 

It  differs  from  acceptilation  In  this,  that  accepti- 
lation  imports  a  complete  discharge  of  the  former 
obligation  whether  payment  be  made  or  not ;  apoca 
discharge  only  upon  payment  being  made.  Calvi- 
nus,    Lex. 

APOCRISARIUS  (Lat.).  In  Civil  Law. 
A  messenger;    an  ambassador. 

Applied  to  legatees  or  messengers,  as  they  car- 
ried the  messages  (.arronpioeig)  of  their  principals. 
They  performed  several  duties  distinct  in  character, 
but  generally  pertaining  to  ecclesiastical  affairs. 

A  messenger  sent  to  transact  ecclesiastical 
business  and  report  to  his  superior ;  an  of- 
ficer who  had  charge  of  the  treasury  of  a 
monastic  edifice;  an  officer  who  took  charge 
of  opening  and  closing  the  doors.  Du  Cange; 
Spelman,  Gloss. ;    Calvinus,  Lex. 

Apocrisarius  Oancellarius.  An  officer  who 
took  charge  of  the  royal  seal  and  signed 
royal  despatches. 

Called,  also,  secretarius,  consiliarius  (from  his 
giving  advice)  ;  referendarius ;  a  consiliis  (from 
his  acting  as  counsellor) ;  a  responsis,  or  respon- 
salis. 

APOGRAPH  I  A.  In  Civil  Law.  An  exam- 
ination and  enumeration  of  things  possessed; 
an  inventory.     Calvinus,  Lex. 

APOPLEXY.       In     Medical     Jurisprudence. 

The  group  of  symptoms  arising  from  rupture 
of  a  minute  artery  and  consequent  hem- 
orrhage into  the  substance  of  the  brain  or 
from  the  lodgment  of  a  minute  clot  in  one 
of  the  cerebral  arteries. 

The  symptoms  consist  usually  of  sudden 
loss  of  consciousness,  muscular  relaxation, 
lividity  of  the  face  and  slow  stertorous  res- 
piration, lasting  from  a  few  hours  to  several 
days.  Death  frequently  ensues.  If  con- 
sciousness returns,  there  is  found  paralysis 
of  some  of  the  voluntary  muscles,  very  fre- 
quently of  the  muscles  of  the  face,  arm,  and 
leg  upon  one  side,  giving  the  symptom  of 
hemiplegia.  There  is  usually  more  or  less 
mental  impairment. 

The  mental  impairment  presents  no  uniform  char- 
acters, but  varies  indefinitely,  in  extent  and  sever- 
ity, from  a  little  failure  of  memory,  to  an  entire 
abolition  of  all  the  intellectual  faculties.  The  pow- 
er of  speech  is  usually  more  or  less  affected;  it 
may  be  a  slight  difficulty  of  utterance,  or  an  in- 
ability to  remember  certain  words  or  parts  of 
words,  or  an  entire  loss  of  the  power  of  articula- 
tion. This  feature  may  arise  from  two  different 
causes— either  from  a  loss  of  the  power  of  language, 
or  a  loss  of  power  in  the  muscles  of  the  larynx. 
This  fact  must  be  borne  in  mind  by  the  medical 
jurist,  and  there  can  be  little  difficulty  in  distin- 
guishing between  them.  In  the  latter,  the  patient 
is  as  capable  as  ever  of  reading,  writing,  or  under- 
standing spoken  language.  In  the  former,  he  is 
unable  to  communicate  his  thoughts  by  writing,  be- 
cause they  are  disconnected  from  their  articulate 
signa.  He  recognizes  their  meaning  when  he  sees 
them,  but  cannot  recall  them  by  any   effort  of  the 


APOPLEXY 


207 


APOPLEXY 


perceptive  powers.  This  affection  of  the  faculty  of 
language  Is  manifested  In  various  ways.  One  per- 
son loses  all  recollection  of  the  names  of  persons 
and  things,  while  other  parts  of  speech  are  still  at 
command.  Another  forgets  everything  but  substan- 
tives, and  only  those  which  express  some  mental 
quality  or  abstract  idea.  Another  loses  the  memory 
of  all  words  but  yes  or  no.  In  these  cases  the  pa- 
tient Is  able  to  repeat  the  words  on  hearing  them 
pronounced,  but,  after  a  second  or  third  repetition, 
loses  them  altogether. 

See  Aphasia. 

Wills  and  contracts  are  not  unfrequently 
made  in  that  equivocal  condition  of  mind 
which  sometimes  follows  an  attack  of  apo- 
plexy or  paralysis;  and  their  validity  is 
contested  on  the  score  of  mental  incompeten- 
cy. In  cases  of  this  kind  there  are,  gene- 
rally, two  questions  at  issue,  viz.,  the  abso- 
lute amount  of  mental  impairment,  and  the 
degree  of  foreign  influence  exerted  upon  the 
party.  They  cannot  be  considered  independ- 
ently of  each  other.  Neither  of  them  alone 
might  be  sufficient  to  invalidate  an  act,  while 
together,  even  in  a  much  smaller  degree,  they 
would  have  this  effect. 

In  testing  the  mental  capacity  of  para- 
lytics, reference  should  be  had  to  the  nature 
of  the  act  in  question.  The  question  is  not, 
had  the  testator  sufficient  capacity  to  make 
a  will?  but,  had  he  sufficient  capacity  to 
make  the  will  in  dispute?  A  capacity  which 
might  be  quite  adequate  to  a  distribution  of 
a  little  personal  property  among  a  few  near 
relatives  would  be  just  as  clearly  inadequate 
to  the  disposition  of  a  large  estate  among  a 
host  of  relatives  and  friends  possessing  very 
unequal  claims  upon  the  testator's  bounty. 
Here,  as  in  other  mental  conditions,  all  that 
is  required  is  mind  sufficient  for  the  purpose, 
neither  more  nor  less.  See  Dementia;  De- 
lirium; Imbecility;  Mania.  In  order  to 
arrive  at  correct  conclusions  on  this  point, 
we  must  be  careful,  among  other  things,  not 
to  confound  the  power  to  appreciate  the 
terms  of  a  proposition  with  the  power  to 
discern  its  relations  and  consequences. 

In  testing  the  mental  capacity  of  one  who 
has  lost  the  power  of  speech,  it  is  always 
difficult,  and  often  impossible,  to  arrive  at 
correct  results.  If  the  person  is  able  and 
willing  to  communicate  his  thoughts  in  writ- 
ing, his  mental  capacity  may  be  clearly  re- 
vealed. If  not  disposed  to  write,  he  may 
communicate  by  constructing  words  and  sen- 
tences by  the  help  of  a  dictionary  or  block 
letters.  Failing  in  this,  the  only  other  in- 
tellectual manifestation  possible  is  the  ex- 
pression of  assent  or  dissent  by  signs  to  prop- 
ositions made  by  others.  Any  of  these  means 
of  communication,  other  than  that  of  writing, 
must  leave  us  much  in  the  dark  respecting 
the  amount  of  intellect  possessed  by  the  par- 
ty. If  the  act  in  question  is  complicated  in 
its  relations,  if  it  is  unreasonable  in  its  dis- 
positions, if  it  bears  the  slightest  trace  of 
foreign  influence,  it  cannot  but  be  regarded 
with  suspicion.     If  the  party  has  only  the 


power   of   assenting   or    dissenting,   it    must 
always  be  impossible  to  decide  whether  this 

not  refer  to  the  terms  rather 
merits   of    the    proposition;     and,    the:' 
an  act  which  bears  no  i  lence  than 

this  of  the  will  of  the  person  certainly  ought 
not  to  be  established.     B<  3ides,  it  must  be 
considered  that  a  will  drawn  up  In  Oils 
ner  is,  actually,  not  the  will  of  the 
since  every  disposition  has  originated  in  the 
minds  of  others;    Ray,  Med.  Jur. 
phenomena  and  legal  consequences  of  para- 
lytic affections  are  extensively   discussed   in 
Clark  v.  Fisher,  1  Paige  (N.  Y.)  171.  1. 
Dec.  402;    1  Hagg.  BccL  502,  ."77;    -J.  id.  84; 
1  Curt.  Eccl.  7S2;    Parish  Will  Case,  4  vols. 
N.  Y.  1S5S.    And  see  Death;  Insanity. 

APOSTASY.  A  total  renunciation  of 
Christianity  by  embracing  either  a  false  re- 
ligion or  having  no  religion  at  all.  4  Bla. 
Com.  43.     See  Blasphemy;    Christianity. 

APOSTLES.  Brief  letters  of  dismissal 
granted  to  a  party  who  takes  an  appeal  from 
the  decision  of  an  English  court  of  admi- 
rality,  stating  the  case,  and  declaring  that 
the  record  will  be  transmitted.  2  Brown, 
Civ.  and  Adm.  Law  438;  Dig.  49.  6.  It  is 
used  in  Adm.  Rule  6,  of  the  2d  Circ.  90  Fed. 
lxix. 

This  term  was  used  in  the  civil  law.  It  is  derived 
from  apostolos,  a  Greek  word,  which  signifies  one 
sent,  because  the  Judge  from  whose  sentence  an  ap- 
peal was  made,  sent  to  the  superior  judge  these 
letters  of  dismission,  or  apostles;  Merlin,  Rcpert. 
mot  Apotres ;    1  Pars.  Marit   Law  745. 

AP0ST0LI.  In  Civil  Law.  Certificates  of 
the  inferior  judge  from  whom  a  cause  is  re- 
moved, directed  to  the  superior.  Dig.  49.  6. 
See  Apostles. 

Those  sent  as  messengers.     Spelman,  Gloss. 

APOTHECARY.  "Any  person  who  keeps 
a  shop  or  building  where  medicines  are  com- 
pounded or  prepared  according  to  prescrip- 
tions of  physicians,  or  where  medicines  are 
sold,  shall  be  regarded  as  an  apothecary." 
14  Stat.  L.  119,  §  23. 

In  England  and  Ireland  an  apothecary  is  a 
member  of  an  inferior  branch  of  the  mi 
profession  and  is  licensed  by  the  Apotheca- 
ries Company  to  practice  medicine  as   well 
as  to  sell  drugs. 

See  Druggist. 

APPARATOR  (Lat).  A  furnisher;  a  pro- 
vider. 

The  sheriff  of  Bucks  had  formerly  a  considerable 
allowance  as  apparator  co7nitatus  (apparator  for 
the  county);    Cowell. 

APPARENT.  That  which  appears;  that 
which  is  manifest;  what  is  proved.  It  is  re- 
quired that  all  things  upon  which  a  court 
must  pass  should  be  made  to  appear,  if  mat- 
ter in  pais,  under  oath;  if  matter  of  rec- 
ord, by  the  record.  It  is  a  rule  that  those 
things  which  do  not  appear  are  to  be  con- 
sidered as  not  existing:  de  non  appttrentibus 
et  non  existcntibus  cadem  est  ratio;    Broom, 


APPARENT 


208 


APPEAL 


Max.  20.  What  does  not  appear  does  not 
exist:  quod  rum  apparct,  non  est;  La  From- 
bois  v.  Jackson,  8  Cow.  (N.  Y.)  600,  18  Am. 
Dec.  463 ;   1  Term  404 ;   12  M.  &  W.  316. 

In  case  of  homicide  when  the  term  "ap- 
parent danger"  is  used  it  means  such  overt 
actual  demonstration,  by  conduct  and  acts,  of 
a  design  to  take  life  or  do  some  great  per- 
sonal injury  as  would  make  the  killing  ap- 
parently necessary  for  self-preservation;  Ev- 
ans v.  State,  44  Miss.  762. 

APPARITOR.  An  officer  or  messenger  em- 
ployed to  serve  the  process  of  the  spiritual 
courts  in  England  and  summon  offenders. 
Cowell. 

APPARURA.  In  Old  English  Law.  Fur- 
niture or  implements. 

Curiicarkr  apparura,  plough-tackle.  Cow- 
ell ;    Jacob,  Diet. 

APPEAL.  In  Criminal  Practice.  A  formal 
accusation  made  by  one  private  person 
against  another  of  having  committed  some 
heinous  crime.     4  Bla.  Com.  312. 

Anciently,  appeals  lay  for  treason  as  well 
as  felonies ;  but  appeals  for  treason  were 
abolished  by  statutes  5  Edw.  III.  c.  9,  25 
Edw.  III.  c.  24,  and  1  Hen.  IV.  c.  14,  and  for 
all  other  crimes  by  the  statute  59  Geo.  III. 
c.  46. 

An  appeal  lay  for  the  heir  male  for  the 
death  of  his  ancestors ;  for  the  widow  while 
unmarried  for  the  death  of  her  husband ; 
and  by  the  party  injured,  for  certain  crimes, 
as  ^  robbery,  rape,  mayhem,  etc.;  Co.  Litt. 
2S7  b;    2  Bish  Cr.  Law  1001,  note,  par.  4. 

It  might  be  brought  at  any  time  within 
a  year  and  a  day,  even  though  an  indictment 
had  been  found.  If  the  appellee  was  found 
innocent,  the  appellor  was  liable  to  imprison- 
ment for  a  year,  a  fine,  and  damages  to  the 
appellee. 

The  appellee  might  claim  wager  of  battel. 
This  claim  was  last  made  in  the  year  1818 
in  England;  1  B.  &  Aid.  405.  And  see  2 
W.  Bla.  713;  5  Burr.  2643,  2793;  4  Sharsw. 
Bla.  Com.  312-318,  and  notes. 

In  the  12th  and  13th  centuries  and  for 
some  time  thereafter,  the  Crown  relied  as 
much  upon  the  Appeal  of  the  private  accuser 
as  upon  the  presentment  of  a  jury.  The  in- 
dictment came  to  take  its  place  and  at  the 
end  of  the  13th  century  the  action  of  tres- 
pass was  an  efficient  substitute  for  the  ap- 
peal, and  it  gradually  decayed  as  a  mode  of 
criminal  prosecution.  It  lived  long  in  the 
law  because  it  came  to  "be  forgotten.  Ap- 
peals of  treason  brought  in  Parliament  were 
abolished  in  1400.  Other  appeals  were  grad- 
ually abolished.  It  was  considered  that  cer- 
tain appeals  alleging  felony  were  good  in 
Coke's  day;  Co.  Litt.  127;  2  Hawk.  P.  C. 
157.  The  appeal  of  murder  had  the  longest 
history  and  was  only  abolished  by  59  Geo. 
III.  c.  46.     2  Holdsw.  Hist.  E.  L.  155. 

In   Legislation.    The  act  by  which  a  mem- 


ber of  a  legislative  body  who  questions 
the  correctness  of  a  decision  of  the  presid- 
ing officer,  procures  a  vote  of  the  body  upon 
the  decision.  In  the  House  of  Representa- 
tives of  the  United  States  the  question  on  an 
appeal  is  put  to  the  House  in  this  form: 
"Shall  the  decision  of  the  chair  stand  as  the 
judgment  of  the  House?"  Rob.  R.  of  O.  14, 
66. 

If  the  appeal  relates  to  an  alleged  breach 
of  decorum,  or  transgression  of  the  rules  of 
order,  the  question  is  taken  without  debate. 
If  it  relates  to  the  admissibility  or  relevancy 
of  a  proposition,  debate  is  permitted,  except 
when  a  motion  for  the  previous  question  is 
pending. 

As  to  Appeal,  in  practice,  as  one  of  the 
methods  of  appellate  jurisdiction,  see  Ap- 
peal and  Error. 

APPEAL  AND  ERROR.  The  methods  of 
exercising  appellate  jurisdiction  for  "the  re- 
view by  a  superior  court  of  the  final  judg- 
ment, order,  or  decree  of  some  inferior 
court."  Ex  parte  Batesville  &  Brinkley  R. 
Co.,  39  Ark.  82. 

"The  most  usual  modes  of  exercising  ap- 
pellate jurisdiction  *  *  *  are  by  a  writ 
of  error,  or  by  an  appeal,  or  by  some  process 
of  removal  of .  a  suit  from  an  inferior  tri- 
bunal. An  appeal  is  a  process  of  civil  laW 
origin,  and  removes  a  cause,  entirely  sub- 
jecting the  facts  as  well  as  the  law  to  a  re- 
view and  a  retrial.  A  writ  of  error  is  a  pro- 
cess  of  common  law  origin,  and  it  removes 
nothing  for  re-examination  but  the  law.  The 
former  mode  is  usually  adopted  in  cases  of 
equity  and  admiralty  jurisdiction ;  the  latter 
in  suits  at  common  law  tried  by  a  jury." 
Sto.  Const.  §  1762 ;  Behn  v.  Campbell,  205  U. 
S.  403,  27  Sup.  Ct.  502,  51  L.  Ed.  857 ;  U.  S. 
v.  Goodwin,  7  Cra.  (U.  S.)  108,  3  L.  Ed.  284. 

The  appellate  jurisdiction  "is  exercised  by 
revising  the  action  of  the  inferior  court,  and 
remanding  the  cause  for  the  rendition  and 
execution  of  the  proper  judgment" ;  Dodds 
v.  Duncan,  12  Lea  (Tenn.)  731,  734.  It  "im- 
plies a  resort  from  an  inferior  tribunal  of 
justice,  to  a  superior,  for  the  purpose  of  re- 
vising the  judgments"  of  the  former ;  Smith 
v.  Carr,  Hard.  (Ky.)  305 ;  and  it  was  said  in 
Marbury  v.  Madison,  that  its  essential  cri- 
terion is  "that  it  revises  and  corrects  the 
proceedings  in  a  cause  already  instituted, 
and  does  not  create  that  cause" ;  1  Cra.  (U. 
S.)  137,  175,  2  L.  Ed.  60.  Auditor  of  State 
v.  R.  Co.,  6  Kan.  500,  505,  7  Am.  Rep.  575; 
Sto.  Const.  Sec.  1761;  Tierney  v.  Dodge,  & 
Minn.  166  (Gil.  153). 

The  methods  of  obtaining  a  review  are  dif- 
ferent in  law  and  equity.  In  the  latter  the 
legal  process  by  which  it  is  obtained  is  terim 
ed  an  appeal,  which  is  the  removal  of  a  cause 
from  a  court  of  inferior  to  one  of  superior 
jurisdiction,  for  the  purpose  of  obtaining  a 
review  and  retrial ;  Wiscart  v.  Dauchy,  3- 
Dall.  (U.  S.)  321,  1  L.  Ed.  619 ;   U.  S.  v.  Good- 


APPEAL  AND  ERROR 


209 


APPEAL  AND  ERROR 


win,  7  Cra.  (U.  S.)  110,  3  L.  Ed.  284 ;  Boone 
v.  Cblles,  10  Pet.  (U.  S.)  205,  9  L.  Ed.  388; 
Wetherbee  v.  Johnson,  11  Mass.  414;  King 
v.  Sloan,  1  S.  &  K.  (Pa.)  7&  When  taken  in 
open  court  it  docs  not  need  the  formalities  of 
ancient  law  to  indicate  that  it  is  taken 
against  all  adverse  interests;  Taylor  v.  Lees- 
nitzer,  220  U.  S.  93,  31  Sup.  Ct.  371,  55  L.  Ed. 
382. 

An  appeal  generally  supersedes  the  judg- 
ment of  the  inferior  court  so  far  that  no 
action  can  be  taken  upon  it  until  after  the 
final  decision  of  the  cause;  Archer  v.  Hart, 
5  Fla.  234;  Danforth,  Davis  &  Co.  v.  Carter, 
4  la.  L'.'IO ;  Waterman  v.  Raymond,  5  Wis. 
185;  Frederick  v.  Bank,  106  111.  147;  Lam- 
phear  v.  Lamprey,  4  Mass.  107;  Walker  v. 
Spencer,  86  N.  Y.  162.  A  decree  is  final  for 
the  purposes  of  an  appeal  when  it  terminates 
the  litigation  between  the  parties  on  the 
merits  of  the  case  and  leaves  nothing  to  be 
done  but  to  enforce  what  has  been  determin- 
ed; St.  Louis,  I.  M.  &  S.  R.  R.  Co.  v.  South- 
ern Co.,  108  U.  S.  24,  2  Sup.  Ct.  6,  27  L.  Ed. 
638;  Bostwick  v.  P.rinkerhoff,  106  U.  S.  3,  1 
Sup.  Ct.  15.  27  L.  Ed.  73 ;  Grant  v.  Ins.  Co., 
106  U.  S.  429,  1  Sup.  Ct.  414,  27  L.  Ed.  237. 
Before  an  appeal  can  be  prosecuted  by  one 
of  several  defendants,  the  case  should  be 
determined  as  to  all ;  Meagher  v.  Mfg.  Co., 
145  U.  S.  611,  12  Sup.  Ct.  876,  36  L.  Ed.  834. 
In  equity  cases  all  parties  against  whom  a 
joint  decree  is  rendered  must  join  in  an  ap- 
peal, if  any  be  taken ;  and  when  only  one 
takes  an  appeal,  and  there  is  nothing  in  the 
record  to  show  that  the  others  were  applied 
to  and  refused  to  appeal,  and  no  order  is 
entered  by  court,  on  notice,  granting  him  a 
separate  appeal,  his  appeal  cannot  be  sus- 
tained; Beardsley  v.  R.  Co.,  158  U.  S.  123, 
15  Sup.  Ct.  7S6,  39  L.  Ed.  919. 

A  writ  of  error  is  the  means  of  bringing 
under  review  by  an  appellate  court,  for  re- 
vision and  correction,  the  judgment  in  an 
action  at  law  of  an  inferior  court  of  record, 
when  the  proceedings  are  according  to  the 
course  of  the  common  law.  See  Writ  of 
Error.  In  cases  in  which  the  proceedings 
are  summary  or  different  from  the  course  of 
the  common  law  they  are  reviewed  by  Cer- 
tiorari. See  that  title.  And  in  England  the 
judgments  of  inferior  courts  not  of  record 
were  brought  up  for  review  by  writ  of  false 
judgment.  See  False  Judgment.  4  Archb. 
Pr.  4,  quoted  in  Ex  parte  Henderson,  6  Fla. 
279. 

A  writ  of  error  is  considered,  generally,  as 
a  new  action ;  Gregg  v.  Bethea,  6  Porter 
(Ala.)  9.  It  does  not  vacate  the  judgment1 
of  the  court  below ;  that  continues  in  force 
until  reversed ;  Railway  Co.  v.  Twombly, 
100  U.  S.  81,  25  L.  Ed.  550.  If  such  writ  can 
ever  be  issued  nunc  pro  tunc  after  the  lapse 
of  time  allowed  by  law  for  bringing  suits  in 
error,  the  default  must  be  attributable  solely 
to  official  delinquency ;  Knight  &  Knight  v. 
Towles,  32  Fla.  473,  14  South.  91. 
Bouv.— 14 


If  the  common  law  is  adopted  in  a  state, 
the  writ  of  error  is  introduced  i 
that  system;  Moore  v.  Harris,  l  Te 
but  it  is  said  that  it  is  not  a  new  . 
but  a  continuation  of  the  Bame  one  trausfer- 
red  to  the  appellate  court  for  review;  Cor- 
Itett  v.  Territory,  1  Wash.  T.  •!•".!  j  tin-  allow- 
ance of  such  a  writ  is  a  matter  of  ju«li<  ial 
determination  on  consideration  of  the  Buffi- 
dency  of  the  grounds  for  it  stated  in  the  pe- 
tition and  assignment  of  errors  :  Simpson  v. 
Hank,  iu:»  Fed.  257,  63  C.  < '.  a.  371;  an  ap- 
peal is  a  matter  of  right;  Lockman  v.  Lang, 
K12  led.  1,  65  C.  C.  A.  <J21  :  Simpson  v.  : 
l-'i  Fed.  257,  63  C.  C.  A.  371;  where  it  was" 
said,  in  reference  to  the  rule  requiring  filing 
of  an  assignment  of  error,  "no  court  or  judge 
has  any  jurisdiction  or  power  to  condition 
allowance  of  an  appeal  upon  his  considera- 
tion or  determination  of  the  question  whether 
or  not  the  applicant  presents  alleged  errors. 
which  form  reasonable  grounds  for  the  re- 
view of  the  decision  below.  That  question  is 
reserved  for  the  consideration  of  the  appel- 
late court  exclusively" ;  and  it  was  held 
that,  notwithstanding  the  rule,  the  assign- 
ment of  errors  need  not  be  filed  before  an  al- 
lowance of  appeal. 

Where  one  court  administers  law  and  equi- 
ty, an  appeal  and  writ  of  error  are  some- 
times taken  in  a  case,  because  of  doubt 
whether  it  is  strictly  legal  or  equitable.  An 
appeal  and  writ  of  error  to  review  the  saint- 
adjudications  is  not  only  proper,  but  com- 
mendable, where  there  i^  just  reason  tr>  doubt 
which  is  the  proper  proceeding  to  give  juris- 
diction to  the  appellate  court  and  that  one 
will  be  dismissed  which  is  ineffective,  and 
the  case  will  be  reviewed  according  to  the 
rules  of  the  method  applicable  to  it :  Lock- 
man  v.  Lang,  132  Fed.  1,  65  C.  C.  A.  621;  but 
some  courts  hold  that  the  two  remedies  can- 
not be  pursued  simultaneously,  but  that  an 
appeal  must  be  dismissed  before  a  writ  of 
error  is  taken;  State  v.  Thompson,  30  Mo. 
App.  503. 

While  the  word  appeal  has  a  strict  tech- 
nical definition,  it  is  frequently  used  as  ein- 
braclng  all  kinds  of  proceedings  for  the  re- 
view of  causes;  City  of  Rockford  v.  Conip- 
ton,  115  111.  App.  40»i;  but  in  states  adhering 
to  common  law  forms  an  appeal  will  not  lie 
from  a  judgment  at  law;  Files  v.  Brown. 
124  Fed.  133,  59  C.  C.  A.  40:; ;  Roberts  v.  Ry. 
Co.,  138  Fed.  711,  71  C.  C.  A.  127;  Trabue  v. 
Williams,  46  Fla.  228,  35  South.  sTl' ;  liv- 
ings v.  Hotline,  67  Neb.  26,  '.'•':  X.  W.  1S6; 
and  in  jurisdictions  where  the  same  courts 
administer  both  law  and  equity  appeals  and 
proceedings  for  review  for  errors  of  law  are 
frequently  governed  by  like  rules ;  Traders' 
Ins.  Co.  v.  Carpenter,  85  Ind.  350.  A  writ 
of  error  is  the  proper  method  of  reviewing  a 
judgment  of  the  supreme  court  of  a  territo- 
ry in  an  action  at  law  tried  without  a  jury  ; 
National    Live    Stock    Bank    of   Chicago    v. 


APPEAL  AND  ERROR 


210 


APPEAL  AND  ERROR 


Bank,  203  U.   S.  296,  27  Sup.  Ct.  79,  51  L. 
Ed.  192. 

Where  a  common  law  form  of  reviewing 
statutory  proceedings  does  not  exist  or  is  not 
resorted  to,  the  conditions  and  form  of  ap- 
peal depend  entirely  upon  statute  and  can- 
not  be  changed  or  aided  by  judicial  action; 
People's  Ice  Co.  v.  The  Excelsior,  43  Mich. 
336,  5  N.  W.  398.  An  appeal  is  a  continuation 
of  a  suit,  whereas  a  writ  of  error  is  consid- 
ered a  new  action;  Macklin  v.  Allenberg, 
100  Mo.  337,  13  S.  W.  350 ;  the  right  of  ap- 
peal in  civil  actions  being  unknown  to  the 
common  law  and  of  statutory  origin,  it  is 
necessary  that  the  requirements  of  the  stat- 
ute be  strictly  complied  with  to  confer  ju- 
risdiction on  the  appellate  courts;  Arkansas 
&  O.  R.  Co.  v.  Powell,  101  Mo.  App.  362,  80 
S.  W.  336. 

A  writ  of  error  is  a  writ  of  right  which  is 
grantable    ex    debito    justitiw;    Skipwith   v. 
Hill,   2  Mass.  35.     The  right   to  an  appeal 
or    writ    of    error   cannot   be    refused,   how- 
ever indifferent  or  baseless  the  demand  on  the 
merits  may  be ;  People  v.  Knickerbocker,  114 
111.  539,  2  N.  E.  507,  55  Am.  Rep.  879 ;  State  v. 
Judge  of  Superior  District  Court,  2S  La.  Ann. 
547  ;  McCreary  v.  Rogers,  35  Ark.  298  ;  Ridge- 
ly  v.  Bennett,  13  'Lea  (Tenn.)  206.     It  is  the 
constitutional  right  of  every  citizen  to  have 
his  case  reviewed  in  one  form  or  another  by  a 
court  of  error;    1  Bland.  5;    but  in  another 
state  it  is  said  not  to   be  a   constitutional 
right  but  subject  to  legislative  control ;    Mes- 
senger v.  Teagan,  106  Mich.  654,  64  N.  W. 
499.    A  suit  at  law  can  be  reviewed  only  on 
writ  of  error;    Behn,  M.  &  Co.  v.  Campbell, 
205  U.  S.  403,  27  Sup.  Ct  502,  51  L.  Ed.  857; 
and  an  equity  cause  cannot  be  reviewed  on 
writ  of  error;    Files  v.  Brown,  124  Fed.  133, 
59  C.  C.  A.  403;    Nelson  v.  Lowndes  County, 
93   Fed.    538,  35   C.    C.   A.   419;     Grooms   v. 
Wood,  43  Fla.  50,  29  South.  445;    Ex  parte 
Sanford,  5  Ala.  562;    Delaplaine  v.   City  of 
Madison,  7  Wis.  407;    Evans  v.  Hamlin,  164 
Mass.  239,  41  N.  EL  267;    Hayes  v.  Fischer, 
102  U.  S.  121,  26  L.  Ed.  95.     But  see  contra, 
Woodard  v.  Glos,  113  111.  App.  353 ;   but  the 
error  of  a  chancellor  in  refusing  to  grant  an 
appeal  on  dismissal  of  injunction  bill  should 
be  corrected  by  writ  of  error ;   Boyd  v.  Knox 
(Tenn.)  53  S.  W.  972.     A  writ  of  error  will 
not  lie  in  a  divorce  case,  an  appeal  is  the 
only  remedy;    Miller  v.  Miller,  3  Binn.  (Pa.) 
30;   Parmenter  v.  Parmenter,  3  Head  (Tenn.) 
225.    But  this  does  not  apply  to  a  decree  for 
alimony,  which  is  subject  to  revision  by  writ 
of  error;   McBee  v.  McBee,  1  Heisk.  (Tenn.) 
558;    an  appeal  and  not  a  writ  of  error  is 
the  proper  proceeding  to  review  probate  or- 
ders;   Horner  v.  Goe,  54  111.  285;    Peckham 
v.  Hoag,  92  Mich.  423,  52  N.  W.  734 ;    Shay 
v.   Henk,   49   Pa.   79;    but   a    writ  of   error 
lies  to  revise  probate  proceedings  which  are 
strictly  according  to  the  course  of  the  com- 
mon law;   Fitzgerald  v.  Com.,  5  Allen  (Mass.) 
509;    or  a  proceeding  for  the  probate  of  a 


will  in  which  the  parties  have  a  right  to  a 
jury  trial ;  Ormsby  v.  Webb,  134  U.  S.  47,  10 
Sup.  Ct.  478,  33  L.  Ed.  805 ;  or  where  a  case 
had  been  appealed  from  the  probate  court  to 
a  law  court  and  the  decree  affirmed ;  Brun- 
son  v.  Burnett,  1  Chand.  (Wis.)  9.  A  writ  of 
error  will  lie  in  cases  where  an  appeal  is  not 
allowed;  Ex  parte  Thistleton,  52  Cal.  220; 
Haines  v.  People,  97  111.  161;  or  if  the  ag- 
grieved party  cannot  avail  himself  of  an  ap- 
peal ;   Valier  v.  Hart,  11  Mass.  300. 

In  an  appellate  court  it  is  the  general 
rule  that  findings  of  fact  in  the  trial  court 
are  conclusive;  E.  Bement  &  Son  v.  Harrow 
Co.,  186  U.  S.  70,  22  Sup.  Ct.  747,  46  L.  Ed. 
1058;  American  Bridge  Co.  v.  R.  Co.,  135 
Fed.  323,  68  C.  C.  A.  131 ;  Smith  v.  City  of 
Buffalo,  159  N.  Y.  427,  54  N.  E.  62;  Fitch- 
burg  R.  Co.  v.  Freeman,  12  Gray  (Mass.)  401, 
74  Am.  Dec.  600;  Hoffman  v.  Silverthorn, 
137  Mich.  60,  100  N.  W.  183 ;  Jersey  City  v. 
Tallman,  60  N.  J.  L.  239,  37  Atl.  1026;  Ap- 
peal of  Melony,  78  Conn.  334,  62  Atl.  151; 
and  when  the  case  is  tried  by  the  court,  with- 
out a  jury,  the  findings  of  the  trial  judge 
are  as  conclusive  as  the  verdict  of  a  jury ; 
York  v.  Washburn,  129  Fed.  564,  64  C.  C.  A. 
132 ;  Bell  v.  Wood,  87  Ky.  56,  7  S.  W.  550 ; 
Rademacher  v.  Greenwood,  114  111.  App.  542; 
Rauen  v.  Ins.  Co.,  129  la.  725,  106  N.  W.  198 ; 
but  when  the  appellate  court  is  convinced 
that  the  premise  upon  which  the  lower  court 
acted  is  without  any  support  in  the  evidence, 
and  that  its  finding  is  clearly  erroneous,  it 
may  be  disregarded ;  Darlington  v.  Turner, 
202  U.  S.  195,  26  Sup.  Ct.  630,  50  L.  Ed.  992 ; 
U.  S.  v.  Puleston,  106  Fed.  294,  45  C.  C.  A. 
297;  Petition  of  Barr,  188  Pa.  122,  41  Atl. 
303;  Brown  v.  Brown,  174  Mass.  197,  54  N. 
E.  532,  75  Am.  St.  Rep.  292 ;  Menz  v.  Beebe, 
102  Wis.  342,  77  N.  W.  913,  78  N.  W.  601. 

Cross  appeals  in  equity  must  be  prosecuted 
like  other  appeals ;  Farrar  v.  Churchill,  135 
U.  S.  609,  10  Sup.  Ct.  771,  34  L.  Ed.  246. 
Where  defendant  appeals  from  part  of  the 
decree,  which  is  affirmed,  and  the  plaintiff 
thereafter  appeals  from  the  other  part  of 
the  decree,  a  motion  to  dismiss  will  be  de- 
nied;  State  v.  R.  Co.,  99  Minn.  280,  109  N. 
W.  238,  110  N.  W.  975. 

A  federal  appellate  court  in  reversing  a 
judgment  for  the  plaintiff  cannot  direct  a 
judgment  for  defendant,  notwithstanding  a 
verdict  for  the  plaintiff,  since  under  the 
VHth  Amendment  of  the  Constitution  the 
only  course  is  to  order  a  new  trial,  and  this 
is  true  notwithstanding  the  state  statute  and 
practice  authorizes  such  action ;  Slocum  v. 
Ins.  Co.,  228  U.  S.  364,  33  Sup.  Ct.  523,  57  L. 

Ed.  ;    Pederson  v.  R.  Co.,  229  U.  S.  146, 

33    Sup.   Ct.    648,   57    L.    Ed.   ;     but  this 

amendment  is  not  applicable  to  the  state 
courts ;    Slocum  v.  Ins.  Co.,  228  U.  S.  364,  33 

Sup.  Ct.  523,  57  L.  Ed. ;   and  the  reversal 

of  a  cause  upon  the  facts  and  rendition  of 
final  judgment  by  the  appellate  court  is  gen- 
erally held  not  to  be  an  infringement  of  the 


APPEAL  AND  ERROR 


211 


APPEAL  AND  ERROR 


right  of  trial  by  jury  secured  by  the  state 
constitutions;    Borg  v.   R.   Co.,  102   111.   348, 

44  N.  E.  722;  Guun  v.  R.  Co.,  27  R.  I.  320, 
62  Atl.  118,  2  L.  R.  A.  (N.  S.)  362  :  id.,  27  R. 
I.  432,  63  Atl.  239,  2  L.  R.  A.  (X.  S.  i  883  ;  nor 
is  the  constitutional  guaranty  infringed  by 
a  statute  authorizing  the  appellate  court  to 
make  findings  of  facts  "which  shall  be  fiual 
and  conclusive  as  to  all  mutters  of  fact  in 
controversy  in  such  cause";  Larkins  v.  R. 
Ass'n,  221  111.  428,  77  X.  E5.  <;7s;  nor  does  it 
imply  that  a  verdict  on  an  issue  of  fact  is 
beyond  the  controlling  power  of  the  trial  or 
appellate  court,  to  be  exercised  to  prevent  in- 
justice;  Chitty  v.  By.  Co.,  148  Mo.  04,  49  S. 
W.  808;  nor  does  a  statute  authorizing  the 
appellate  court  to  reverse  for  excessive  dam- 
ages ;  Smith  v.  Pub.  Co.,  178  Pa.  481,  30  Atl. 
290,  35  L.  R.  A.  819 ;  nor  an  act  authorizing 
such  court  to  affirm,  reverse,  amend  or  modi- 
fy a  judgment  without  returning  the  record 
to  the  court  below ;  or  to  order  a  verdict  and 
judgment  to  be  set  aside  and  a  new  trial 
had;  Nugent  v.  Traction  Co.,  183  Pa.  142,  38 
Atl.  5S7 ;  where  the  damages  are  excessive 
the  appellate  court  may  require  the  plaintiff 
to  remit  the  excess  as  a  condition  of  affirm- 
ance without  depriving  either  party  of  his 
right  to  trial  by  jury  ;  Burdict  v.  Ry.  Co., 
123  Mo.  221,  27   S.  W.  453,  20  L.  R.  A.  384, 

45  Am.  St  Rep.  52S ;  Texas  &  N.  O.  R.  Co. 
v.  Syfan,  91  Tex.  502,  44  S.  W.  1004;  but 
where  the  jury  finds  the  charge  of  negligeuce 
not  sustained  by  the  facts,  the  court  cannot 
disturb  the  verdict,  though  it  be  of  a  differ- 
ent opinion ;  Gibson  v.  City  of  Huntington, 
38  W.  Va.  177,  18  S.  E.  447,  22  L.  R.  A.  501. 
45  Am.  St  Rep.  853. 

Harmless  error  is  no  cause  for  reversal ; 
Tpwnsend  v.  Bell.  107  N.  Y.  402,  00  X.  E. 
757 ;  Springer  v.  Lipsis,  209  111.  204,  70  X.  E. 
041 ;  O'Dounell  v.  Ins.  Co.,  73  Mich.  1,  41  X. 
W.  95 ;  nor  intermediate  error  where  the  ul- 
timate judgment  is  right;  Orr  v.  Leathers, 
27  Ind.  App.  572,  01  N.  E.  941;  Inhabitants 
of  Winslow  v.  Troy.  97  Me.  130,  53  Atl.  1008; 
nor,  when  the  losing  party  is  not  entitled  to 
recover  in  any  event,  can  he  be  heard  to 
complain  of  error  at  the  trial ;  Wood  v. 
Wyeth,  100  App.  Div.  21,  94  N.  Y.  Supp.  300; 
nor  where,  if  the  error  did  not  prejudice  the 
party  against  whom  it  was  committed:  Ar- 
mour &  Co.  v.  Russell,  144  Fed.  014,  75  C.  C. 
A.  410,  0  L.  R.  A.  (N.  S.)  002;  Strever  v. 
Ry.  Co.,  100  la.  137,  70  X.  W.  513. 

Judgments  will  be  reversed  where  the 
court  below  erred  in  failing  to  sustain  a  de- 
murrer to  one  of  several  paragraphs  of  the 
declaration  or  complaint,  and  it  cannot  be 
determined  on  which  paragraph  or  count 
the  verdict  was  based ;  Gendron  v.  St.  Pierre, 
72  N.  H.  400,  50  Atl.  915;  Bohler  v.  Hicks, 
120  Ga.  800,  48  S.  E.  300 ;  or  where  evidence 
was  improperly  admitted,  prejudice  being 
presumed ;  Xational  Biscuit  Co.  v.  Xolan,  138 
Fed.  0,  70  C.  C.  A  430 ;  Inhabitants  of  Way- 
land  v.  Inhabitants  of  Ware,  109  Mass.  248; 


or   on   the   exclusion   of   e.-i<] 
presumption   applying;    Westall    v.    Osl 
115    Fed.    2  !.    C.    A.  74;    H 

Ehrich,  178  X.  Y.  474,  71  X.  E.  12;  so  also 
an  erroneous  Instruction  on  a  ma;, 
(unless  it  clearly  appears  to  1: 
harmless  i  ;  Podhaisky  v.  city  of  Cedar  Rap- 
ids, 106  la.  643,  76  X.  W.  s!7:  Ward  v. 
Ward,  47  W.  Va.  7<;.;,  35  S.  B.  873;  Nea]  v. 
Brandon,  70  Ark.  7!».  66  S.   W.   200. 

A   party    cannot   complain   of   error   in   Ins 
own  favor;  Copeland  v.  Dairy  Co..  is:i  [ 
342,  75  X.  E.  7u4;  Drown  v.  Hamilton,  I 
H.  23.  44  Atl.  79;  Fredrick  Mfg.  Co.  v.  Dev- 
lin, 127  Fed.  71,  02  C.  C.  A.  53;  Lowenthal 
v.  Lowenthal,   157   X.   Y.  2.';«;.   51    X.    E 
Questions  not  presented  by  the  record  can- 
not be  considered  on  appeal;  Inhabit.'!' 
New  Marlborough  v.  Brewer,  17o  Masa   162, 
48    X.    E.   3089;    Huff   v.    Cole's    1 
Mich.  351,  80  X.  W.  835;  Lewis  7.  L< 
X.  J.  L.  251.  49  Atl.  453 :    Morgan  v.  m 
Ind.  390;    otherwise,  sometimes,  in  criminal 
cases:    Crawford  v.  U.  S.,  I'll'  U.   S.   I 
Sup.  Ct  200,  53  L.  Ed.  405,  15  Ann.  Cas.  392. 

When  a  cause  comes  before  the  court  on  a 
second  appeal  all  matters  passed  on  in  the 
former  decision  are  res  judicata;  Chapman 
v.  Ry.  Co.,  140  Mo.  4S1,  48  S.  W.  040;  a  re- 
hearing will  be  denied ;  Pretzfelder  v.  Ins. 
Co.,  12:;  x.  c.  301,  ::i  S.  E.  470,  44  L.  R.  A. 
424;  the  law  as  determined  in  the  former 
decision  whether  right  or  wrong  binds  the 
court  on  a  suhsequent  appeal;  Hopkins  v. 
Grocery  Co.,  105  Ky.  357,  4'.)  S.  W.  is:  Mead 
v.  Tzschuck,  57  Xeb.  015,  7S  X.  W.  262. 
See  Law  op  the  Case. 

Where  the  supreme  court  affirms  the  decree 
in  all  respects  but  one,  on  subsequent  appeal 
only  this  one  particular  point  can  be  review- 
ed; Illinois  v.  R.  Co.,  184  U.  S.  77,  22  Sup. 
Ct.  300,  40  L.  Ed.  440.  Ordinarily  when  the 
court  is  equally  divided  on  appeal,  the  decree 
of  the  lower  court  is  aliirmed.  But  see  39 
Nova  Scotia  1,  where  the  appeal  was  al- 
lowed. 

It  is  a  general  rule  of  the  law  that  all  the 
judgments,  decrees,  or  orders,  however  con- 
clusive in  their  character,  are  under  the  con- 
trol of  the  court  which  pronounces  them  dur- 
ing the  term  at  which  they  are  rendered  or 
entered  of  record,  and  may  then  be  set  aside, 
vacated,  modified,  or  annulled  by  that  court; 
Bronson  v.  Schulten,  104  U.  S.  415,  26  L.  lid. 
797. 

The  Supreme  Court  disapproves  the  prac- 
tice in  an  appellate  court  of  reserving  a  judg- 
ment on  one  of  a  number  of  assigned  errors 
without  passing  on  the  others,  as  likely  to 
involve  duplicate  appeals:  Bierce  v.  Water- 
house,  219  U.  S,  320,  21  Sup.  Ct.  241,  55  L. 
Ed.  237. 

As  to  the  practice  when  the  appellant  is 
deprived  of  his  bill  of  exceptions  by  the 
death  of  the  judge,  etc.,  see  New  Trial. 

See  Bill  of  Exceptions;  Jrr.isnicTiON; 
Wiiir  of  Ebeob;  United  States  Coukts. 


APPEAL  AND  ERROR 


212 


APPEARANCE 


In  the  United  States  Supreme  Court  a 
defendant  in  error  or  appellee  may  file  a 
confession  of  error,  and  thereupon  the  judg- 
ment will  be  reversed  and  the  cause  remand- 
ed, with  proper  directions. 

APPEARANCE.  A  coming  into  court  as 
party  to  a  suit,  whether  as  plaintiff  or  de- 
fendant. 

The  former  proceeding  by  which  a  defend- 
ant submits  himself  to  the  jurisdiction  of  the 
court.     Tr.  &  H.  I'rac.  226,  271. 

Appearance  anciently  meant  an  actual  coming 
into  court,  either  in  person  or  by  attorney.  It  is 
so  used  both  in  the  civil  and  the  common  law.  It 
is  indicated  by  the  word  "comes,"  "and  the  said 
C.  D.  comes  and  defends,"  and,  in  modern  practice, 
is  accomplished  by  the  entry  of  the  name  of  the 
attorney  of  the  party  in  the  proper  place  on  the 
record,  or  by  filing  bail  where  that  is  required.  It 
was  a  formal  matter,  but  necessary  to  give  the 
court   jurisdiction  over  the  person  of  the  defendant. 

A  time  is  generally  fixed  within  which  the  de- 
fendant must  enter  his  appearance;  formerly  in 
England  and  elsewhere,  the  quarto  die  post  (q.  v.). 
If  the  defendant  failed  to  appear  within  this  period, 
the  remedy  in  ancient  practice  was  by  distress 
infinite  when  the  injuries  were  committed  without 
force,  and  by  capias  or  attachment  when  the  inju- 
ries were  committed  against  the  peace,  that  is, 
were  technical  trespasses.  But,  until  appearance, 
the  courts  could  go  no  further  than  apply  this  pro- 
cess to  secure  appearance.     See  Process. 

In  modern  practice,  a  failure  to  appear  generally 
entitles  the  plaintiff  to  judgment  against  the  de- 
fendant by  default,  if,  of  course,  the  court  has  ju- 
risdiction of  the  cause. 

It  may  be  of  the  following  kinds: — 

Compulsory. — That  which  takes  place  in 
consequence  of  the  service  of  process. 

Conditional. — One  which  is  coupled  with 
conditions  as  to  its  becoming  general. 

De  bene  esse. — One  which  is  to  remain  an 
appearance,  except  in  a  certain  event.  See 
De  Bene  Esse. 

General. — A  simple  and  absolute  submis- 
sion to  the  jurisdiction  of  the  court.  See 
infra. 

Gratis. — One  made  before  the  party  has 
been  legally  notified  to  appear. 

Optional. — One  made  where  the  party  is 
not  under  any  obligation  to  appear,  but  does 
so  to  save  his  rights.  It  occurs  in  chancery 
practice,  especially  in  England. 

Special. — That  which  is  made  for  certain 
purposes  only,  and  does  not  extend  to  all 
the  purposes  of  the  suit;  as  to  contest  the 
jurisdiction,  or  the  sufficiency  of  the  service. 
See  infra. 

Subsequent— An  appearance  by  the  de- 
fendant after  one  has  already  been  entered 
for  him  by  the  plaintiff.     See  Dan.  Ch.  Pr. 

Voluntary. — That  which  is  made  in  an- 
swer to  a  subpoena  or  summons,  without  pro- 
cess;   1  Barb.  Ch.  Pr.  77. 

Hoiv  to  be  made. — On  the  part  of  the  plain- 
tiff no  formality  is  required.  On  the  part  of 
the  defendant  it  may  be  effected  by  making 
certain  formal  entries  in  the  proper  office  of 
the  court,  expressing  his  appearance ;  Zion 
Church  v.  Church,  5  W.  &  S.  (Pa.)  215 ;  Eas- 
ton  v.  Altum,  1  Scam.  (111.)  250;  Griffin  v. 
Samuel,  6  Mo.  50;    Bennett  v.  Stickney,  17 


Vt.  531;  Rose  v.  Ford,  2  Ark.  26,  Scott  v. 
Hull,  14  Ind.  136;  or  in  case  of  arrest,  is 
effected  by  giving  bail ;  or  by  putting  in  an 
answer;  Livingston  v.  Gibbons,  4  Jobns.  Ch. 
(N.  T.)  94;  Hayes  v.  Shattuck,  21  Cal.  51; 
President,  etc.,  of  Insurance  Co.  of  North 
America  v.  Swineford,  2S  Wis.  257 ;  or  a 
demurrer;  State  v.  People,  6  Pet.  (U.  S.)  323, 
8  L.  Ed.  414;  Kegg  v.  Welden,  10  Ind.  550; 
or  notice  to  the  other  side;  Livingston  v. 
Gibbons,  4  Johns.  Ch.  (N.  Y.)  94 ;  or  motion 
for  continuance;  Shaffer  v.  Trimble,  2 
Greene  (la.)  464;  or  taking  an  appeal;  Wea- 
ver v.  Stone,  2  Grant  (Pa.)  422;  appearance 
and  offer  to  file  answer;  Tennison  v.  Tenni- 
son,  49  Mo.  110 ;  or  motion  to  have  an  inter- 
locutory order  set  aside;  Tallman  v.  McCar- 
ty,  11  Wis.  401. 

A  general  appearance  waives  all  question 
as  to  the  service  of  process  and  is  equivalent 
to  a  personal  service;  Piatt  v.  Manning,  34 
Fed.  817 ;  Continental  Casualty  Co.  v.  Sprad- 
lin,  170  Fed.  322,  95  C.  C.  A.  112 ;  Moulton  v. 
Baer,  78  Ga.  215,  2  S.  E.  471 ;  Birmingham 
Flooring  Mills  v.  Wilder,  85  Ala.  593,  5 
South.  307 ;  but  it  does  not  cure  want  of 
jurisdiction  of  subject  matter ;  Wheelock  v. 
Lee,  74  N.  Y.  495 ;  St.  Louis  &  S.  F.  R.  Co. 
v.  Loughmiller,  193  Fed.  6S9 ;  a  general  ap- 
pearance in  a  federal  court  waives  the  de- 
fence that  the  defendant  was  not  served  in 
the  district  of  which  he  was  an  inhabitant; 
Foote  v.  Ben.  Ass'n,  39  Fed.  23;  Betzoldt  v. 
Ins.  Co.,  47  Fed.  705.  A  general  appearance 
may  be  amended  so  as  to  make  it  special; 
Hohorst  v.  Packet  Co.,  38  Fed.  273. 

It  is  not  a  general  appearance  where  the 
question  of  jurisdiction  of  the  person  is  rais- 
ed by  motion  to  quash  for  want  of  jurisdic- 
tion ;  McGillin  v.  Claflin,  52  Fed.  657;  or 
petition  to  quash  the  writ;  Turner  v.  Larkin, 
12  Pa.  Sup.  Ct.  284.  In  general,  however, 
when  that  objection  is  raised,  the  appear- 
ances should  be  specially  restricted ;  Nich- 
oles  v.  People,  165  111.  502,  46  N.  E.  237; 
Reed  v.  Chilson,  142  N.  Y.  152,  36  N.  E.  884 ; 
if  by  motion  or  otherwise  he  seeks  to  bring 
into  action  the  powers  of  the  court,  he  will 
be  deemed  to  have  appeared  generally ;  New- 
love  v.  Woodward,  9  Neb.  502,  4  N.  W.  237. 
If  a  special  appearance  is  entered  to  contest 
jurisdiction,  it  becomes  general  if  a  defense 
is  made  to  the  merits ;  Sanderson  v.  Bishop, 
171  Fed.  769. 

A  special  appearance  to  raise  the  question 
of  judicial  action  does  not  amount  to  a  gen- 
eral appearance;  Commercial  Mut.  Accident 
Co.  v.  Davis,  213  U.  S.  245,  29  Sup.  Ct.  445,  53 
L.  Ed.  782.  A  special  appearance  entered 
to  contest  the  jurisdiction  will  not  operate 
to  waive  objection  to  illegal  or  insufficient 
service;  Lathrop-Shea  &  Henwood  Co.  v. 
Const.  Co.,  150  Fed.  666  (citing  many  Su- 
preme Court  cases  where  such  appearance  is 
recognized) ;  Remington  v.  Ry.  Co.,  198  U.  S. 
95,  25  Sup.  Ct.  577,  49  L.  Ed.  959;  Powers 
v.  Ry.  Co.,  169  U.  S.  92,  18  Sup.  Ct.  264,  42 


APPEARANCE 


213 


APPEARANCE 


L.  Ed.  673;  Courtney  v.  Pradt,  196  U.  S.  89, 
25  Sup.  Ct.  208,  49  L.  Ed.  398;  and  the  effect 
of  such  appearance  is  not  enlarged  by  dis- 
cussion of  the  merits  in  connection  with  the 
plea  ;  Citizens'  Savings  &  Trust  Co.  v.  R.  Co., 
205  U.  S.  46,  27  Sup.  Ct.  425,  51  L.  Ed.  703; 
nor  by  the  removal  of  the  cause;  Goldey  v. 
Morning  News,  L56  I'.  S.  518,  15  Sup.  Ct  559, 
39  L.  Ed.  517;  even  if  the  petition  for  re- 
moval does  not  specify  or  restrict  the  pur- 
pose of  the  appearance  and  is  not  accom- 
panied by  a  plea  in  abatement;  National  Ac- 
cident Society  v.  Spiro,  104  U.  S.  2S1,  17  Sup. 
Ct.  990,  41  L.  Ed.  435.  Filing  a  petition  to 
remove  is  not  a  general  appearance;  Spreen 
v.  Delslgnore,  91  Fed.  71.  ' 

Where  defendant  hies  a  formal  appearance 
and  simultaneously  an  exception  to  the  ju- 
risdiction, the  two  papers  should  be  consid- 
ered together  and  cannot  be  regarded  as  con- 
sent to  the  jurisdiction  where  consent  is  nec- 
essary; Wood  v.  Lumber  Co.,  226  U.  S.  384, 
33  Sup.  Ct  125,  57  L.  Ed.  . 

It  does  not  amount  to  a  general  appear- 
ance that  a  defendant  not  served  is  examined 
as  a  witness;  Nixon,  v.  Downey,  42  la.  78; 
Schroeder  v.  Lahrman.  26  Minn.  S7,  1  N.  W. 
801;  or  is  present  when  depositions  are  tak- 
en; Bentz  v.  Eubanks,  32  Kan.  321.  4  Pac. 
269;  Anderson  v.  Anderson,  55  Mo.  App.  26S; 
Scott  v.  Hull,  14  Ind.  136;  or  in  the  court 
room  during  the  trial ;  Tiffany  v.  Gilbert,  4 
Barb.  (N.  Y.)  320;  Newlove  v.  Woodward,  9 
Neb.  502,  4  N.  W.  237;  Crary  v.  Barber,  1 
Colo.  172. 

Actual  or  formal  appearance  is  now  un- 
necessary ;  Gardiner  v.  McDowell's  Adin'r, 
Wright  (Ohio)  762;  Byrne  v.  Jeffries,  38 
Miss.  533 ;  and  a  formal  entry  of  one  is  un- 
known in  Louisiana  ;  Stoker  v.  Leavenworth, 
7  La.  390.  It  need  not  be  by  any  formal  act 
or  words  in  court ;  Harrison  v.  Morton,  87 
Md.  671,  40  Atl.  897;  Salina  Nat.  Bank  v. 
Prescott,  60  Kan.  490,  57  Pac.  121;  Rhoades 
v.  Delauey,  50  Ind.  46S.  It  is  generally  done 
by  entry  of  the  attorney's  name  on  the  dock- 
et opposite  the  party's  name;  Romaine  v. 
Ins.  Co.,  28  Fed.  625  (where  the  practice  is 
examined  at  large);  Scott  v.  Israel,  2  Binn. 
(Pa.)  145  (where  the  entry  of  the  attorney's 
name  on  the  docket  opposite  the  names  of 
two  defendants,  is  good  as  to  both,  though 
one  was  not  served);  or  the  initials  merely; 
Kennedy  v.  Fairman,  2  N.  C.  405;  or  by  en- 
dorsement on  the  declaration;  Byrne,  Vance 
&  Co.  v.  Jeffries,  38  Miss.  533 ;  or  on  the  writ 
waiving  service;  Harrison  v.  Morton,  S7  Md. 
671.  40  Atl.  S97 ;  or  any  action  in  court  in 
the  case  except  to  object  to  the  jurisdiction  ; 
Audretsch  v.  Hurst  126  Mich.  301.  85  N.  W. 
746;  Warren  v.  Cook,  116  111.  199,  5  N.  E. 
538;  Tippack  v.  Briant,  63  Mo.  580;  People 
v.  Cowan,  146  N.  Y.  34S,  41  N.  E.  26,  and 
see  a  variety  of  cases  collected  in  3  Cyc.  504, 
n.  28. 

By  whom  to  be  made. — In  civil  cases  it 
may  in  general  be  made  either  by  the  party 


or  his  attorney ;  and  in  those  cases  where 
it  i-  said  that  the  party  must  appear  in  per- 
son, it  is  sufficient  if  it  is  so  entered  on  the 
record;  although,  in  fact,  the  appearance 
is  by  attorney;  Mockey  v.  Grey,  2  Johns. 
(N.  1.)  192;  Arnold  v.  Bandford,  1-4  Johns. 
(X.  Y.)  417.  The  unauthorized  appearance 
of  an  attorney  will  not  give  the  court  juris- 
diction: Great  West  Min.  Co.  v.  Min  C 
Colo.  -16.  20  Pac.  771.  1.",  Am.  St.  Rep.  204; 
McNamara  v.  Carr,  m  Me.  299,  24  Atl.  856. 
An  appearance  by  attorney  is,  in  strict- 
iinproper  where  a  party  wishes  to 
plead  to  the  jurisdiction  of  the  court,  be- 
cause the  appointment  of  an  attorney  of  the 
court  admits  its  jurisdiction:   ]  Chit.  I'!    398; 

2  Wins.  Saund.  209  b;  and  is  Insufficient  in 
those  cases  where  the  party  has  not  suffi- 
cient capacity  to  appoint  an  attorney.  Thus 
an  idiot  can  appear  only  in  person,  and  as  a 
plaintiff  he  may  sue  in  person  or  by  his  next 
friend. 

An  infant  cannot  appoint  an  attorney;  he 
must,  therefore,  appear  by  guardian  or  pro- 
chein  ami. 

A  lunatic,  if  of  full  age,  may  appear  by 
attorney;  if  under  age,  by  guardian  only.  2 
Wins.  Saund.  335;  Id.  232(a),  n.  (4) ;  but  if 
so  insane  as  to  be  Incapable  of  knowing  his 
mental  state  he  cannot  authorize  appearance 
by  an  attorney;  Chase  v.  Chase,  1»',::  Ind. 
178,  71  N.  E.  4S5.  Process  should  be  served 
on  defendant  and  the  appearance  for  him 
should  be  entered  by  the  guardian  or 
mittee;  Stoner  v.  Riggs,  128  Mich.  129,  87 
N.  W.  109;  Rutherford's  lessee  v.  Folger,  20 
N.  J.  L.  115. 

A  married  woman,  when  sued  without  her 
husband,  should  defend  in  person;  1  Wins. 
Saund.  209  b.  When  sued  jointly  with  him 
under  a  statute  providing  for  such  suit  on 
their  joint  contract  and  that  she  may  defend 
separately  or  jointly,  an  appearance  by  coun- 
sel employed  by  her  husband  to  defend  does 
not  bind  her:  Taylor  v.  Welslager,  90  Md. 
414,  45  Atl.  478. 

The  effect  of  an  appearance  by  the  defend- 
ant is,  that  both  parties  are  considered  to 
be  in  court. 

In  criminal  cases  the  personal  appearance 
of  the  accused  in  court  is  often  necessary. 
See  2  Burr.  931:  id.  Use,-  i  w.  Bla.  198 
The  verdict  of  the  jury  must,  in  all  cases  of 
treason  and  felony,  be  delivered  in  open 
court,  in  the  presence  of  the  defendant.  In 
cases  of  misdemeanor,  the  presence  of  the 
defendant  during  the  trial  is  not  essential  : 
Bacon,  Abr.  Verdict,  B;  Arch.  Cr.  PI.  (14th 
ed.)    M0. 

No  motion  for  a  new  trial  is  allowed  un- 
less the  defendant  or,  if  more  than  one,  the 
defendants,  who  have  been  convicted,  are 
present  in  court  when   the  motion  is  made: 

3  M.  &  S.  10,  note:  17  Q.  B.  503;  2  Den.  Cr. 
Cas.  372,  note.  But  this  rule  does  not  apply 
where  the  offence  of  which  the  defendant 
has  been   convicted  is  punishable  by  a  fine 


APPEARANCE 


214 


APPLICATION 


only ;  2  Den.  Cr.  Cas.  459 ;  or  where  the  de- 
fendant is  in  custody  on  criminal  process ;  4 
B.  &  C.  329.  On  a  charge  of  felony,  a  party 
suing  out  a  writ  of  error  must  appear  in  per- 
son to  assign  errors  :  and  it  is  said  that  if 
the  party  is  in  custody  in  the  prison  of  the 
county  or  city  in  which  the  trial  has  taken 
place,  he  must  be  brought  up  by  habeas  cor- 
pus, for  the  purpose  of  this  formality,  which 
writ  must  be  moved  for  on  affidavit  This 
course  was  followed  in  2  Den.  Cr.  Cas.  287 ; 
17  Q.  B.  317;   8  E.  &  B.  54 ;   1  D.  &  B.  375. 

Where  a  defendant  is  not  liable  to  per- 
sonal' punishment,  but  to  a  fine,  sentence 
may  be  pronounced  against  him  in  his  ab- 
sence; 1  Chit,  Cr.  L.  695;  2  Burr.  931;  3 
id.  1780. 

APPELLANT.  He  who  makes  an  appeal 
from  one  court  to  another. 

APPELLATE  JURISDICTION.  The  ju- 
risdiction which  a  superior  court  has  to  re- 
hear causes  which  have  been  tried  in  in- 
ferior courts.     See  Appeal  and  Error. 

APPELLATIO.     In  Civil   Law.    An  appeal. 

APPELLEE.  In  Practice.  The  party  in 
a  cause  against  whom  an  appeal  has  been 
taken. 

APPELLOR.  A  criminal  who  accuses  his 
accomplices;    one  who  challenges  a  jury- 

APPENDAGE.  Something  added  as  an 
accessory  to  or  the  subordinate  part  of  an- 
other thing.  State  Treasurer  v.  R.  Co.,  28  N. 
J.  L  26 ;  School  Dist.  No.  29,  Bourbon  Coun- 
ty v.  Perkins,  21  Kans.  536,  30  Am.  Rep.  447. 

APPENDANT.  Annexed  or  belonging  to 
something  superior ;  an  incorporeal  inheri- 
tance belonging  to  another  inheritance. 
Cowell ;   Termes  de  la  Ley. 

Appendant  in  deeds  includes  nothing  which  is  sub- 
stantial corporeal  property,  capable  of  passing  by 
feoffment  and  livery  of  seisin.  Co.  Litt.  121 ;  4 
Coke  86 ;  S  B.  &  C.  150 ;  6  Bingh.  150.  A  matter 
appendant  must  arise  by  prescription;  while  a  mat- 
ter appurtenant  may  be  created  at  any  time;  2 
Viner,  Abr.  594;    3  Kent  404. 

APPENDITIA  (Lat.  appendere,  to  hang  to 
or  on).  The  appendages  or  pertinances  of 
an  estate;  the  appurtenances  to  a  dwelling, 
etc. ;  thus,  pent-houses  are  the  appenditid 
domus. 

APPERTAINING.  Connected  with  in  use 
or  occupancy.  Miller  v.  Mann,  55  Vt.  475, 
479.  It  does  not  necessarily  import  con- 
tiguity, as  does  "adjoining,"  and  is  there- 
fore not  synonymous  with  it ;   id. 

Peculiar  to.  Herndon  v.  Moore,  18  S.  C. 
339,  where  business  "appertaining  to  minors" 
is  defined  as  meaning  peculiar  to  minors. 

APPLICATION.  The  act  of  making  a  re- 
quest for  something.  It  need  not  be  in  writ- 
ing;   State  v.  Stiles,  12  N.  J.  L.  296. 

A  written  request  to  have  a  certain  quan- 
tity of  land  at  or  near  a  certain  specified 
place,  under  a  statute  for  location  of  public 
land  of  the  state.    Duncan's  Lessee  v.  Curry, 


3  Binn.  (Pa.)  14 ;  Biddle's  Lessee  v.  Dougal, 
5  Binn.  (Pa.)  142. 

A  petition.  Scott  v.  Strobach,  49  Ala.  477, 
489. 

The  use  or  disposition  made  of  a  thing. 

In  Insurance.  The  preliminary  statement 
made  by  a  party  applying  for  an  insurance 
on  life,  or  against  fire.  It  usually  consists 
of  written  answers  to  interrogatories  pro- 
posed by  the  company  applied  to,  respecting 
the  proposed  subject.  It  corresponds  to  the 
"representations"  preliminary  to  maritime 
insurance.  It  is  usually  referred  to  express- 
ly in  the  policy  as  being  the  basis  or  a  part 
of  the  contract,  and  this  reference  creates  in 
effect  a  warranty  of  the  truth  of  the  state- 
ments. In  an  action  on  a  policy,  the  applica- 
tion and  policy  must  be  construed  as  one  in- 
strument; Studwell  v.  Association,  19  N.  Y. 
Supp.  709.  If  the  policy  does  not  make  the 
answers  a  part  of  the  contract,  this  will  have 
only  the  effect  of  representation;  May,  Ins. 
§  159;  Columbia  Ins.  Co.  v.  Cooper,  50  Pa. 
331.  To  constitute  a  warranty  it  must  be 
made  a  part  of  the  policy ;  Goddard  v.  In- 
surance Co.,  67  Tex.  69,  1  S.  W.  906,  60  Am. 
Rep.  1.  A  mere  reference  in  the  policy  to 
the  application  does  not  make  its  answers 
warranties ;  it  is  a  question  of  intention ; 
Jefferson  Ins.  Co.  v.  Cotheal,  7  Wend.  (N.  Y.) 
72,  22  Am.  Dec.  567 ;  Sheldon  &  Co.  v.  Insur- 
ance Co.,  22  Conn.  235,  58  Am.  Dec.  420; 
Commonwealth's  Ins.  Co.  v.  Monninger,  18 
Ind.  352;  the  courts  tend  to  consider  the 
answers  representations,  rather  than  warran- 
ties, except  in  a  clear  case ;  Campbell  v.  In- 
surance Co.,  98  Mass.  381;  Miller  v.  Insur- 
ance Co.,  31  la.  216,  7  Am.  Rep.  122 ;  Wilson 
v.  Insurance  Co.,  4  R.  I.  141.  An  oral  mis- 
representation of  a  material  fact  will  defeat 
a  policy  on  life  or  against  fire,  no  less  than  in 
maritime  insurance,  on  the  ground  of  fraud; 

1  Phill.  Ins.  §  650.  Misrepresentation  as  to 
one  of  several  buildings  all  being  in  one 
policy  cannot  defeat  a  recovery  on  another; 
Rogers  v.  Insurance  Co.,  121  Ind.  570,  23  N. 
E.  498.  See  Representation;  Misrepre- 
sentation; Insurance. 

Of  Purchase-Money.  The  disposition  made 
of  the  funds  received  by  a  trustee  on  a  sale 
of  real  estate  held  under  the  trust. 

Where  there  is  a  general  power  to  sell  for 
the  payment  of  debts,  or  debts  and  legacies, 
the  purchaser  need  not  look  to  the  applica- 
tion of  the  purchase-money;    Bruch  v.  Dantz, 

2  Rawle  (Pa.)  392,  21  Am.  Dec.  458 ;  Andrews 
v.  Sparhawk,  13  Pick.  (Mass.)  393 ;  1  Beas. 
69 ;  Hauser  v.  Shore,  40  N.  C.  357 ;  Gardner 
v.  Gardner,  3  Mas.  178,  Fed.  Cas.  No.  5,227 ; 
or  so  as  to  legacies  where  there  is  a  trust 
for  reinvestment;  Wormley  v.  Wormley,  8 
Wheat.  (U.  S.)  421,  5  L.  Ed.  651 ;  Grosvenor 
&  Co.  v.  Austin's  Adm'rs,  6  Ohio  114,  25  Am. 
Dec.  743 ;  where  the  trust  is  to  pay  speci- 
fied debts,  the  purchaser  must  see  to  the 
application  of  the  purchase-money;  Gardner 
v.  Gardner,  3  Mas.  178,  Fed.  Cas.  No.  5,227; 


APPLICATION 


215 


APPOINTMENT 


Cadbury  v.  Duval,  10  Pa.  207 ;  1  Pars.  Eq. 
57;  Duffy  v.  Calvert,  6  Gill  (Md.)  487.  See 
note  to  Elliot  v.  Merryman,  1  Lead.  Cas.  Eq. 
74;  Perry,  Trusts;  Adams,  Eq.  *153.  The 
doctrine  is  abolished  in  England  by  23  &  24 
Vict.  c.  145,  §  29,  and  is  of  little  importance 
in  the  United  Stales;  Bisp.  Eq.  278. 
Of  Payments.     See  Appropriation. 

APPOINT.  To  designate,  ordain,  pre- 
scribe, nominate;  People  v.  Fitzsimmons,  68 
N.  Y.  519. 

APPOINTEE.  A  person  who  is  appointed 
or  selected  for  a  particular  purpose;  as,  the 
appointee  under  a  power  is  the  person  who  is 
to  receive  the  benefit  of  the  power. 

APPOINTMENT.  The  designation  of  a 
person,  by  the  person  or  persons  having  au- 
thority therefor,  to  discharge  the  duties  of 
some  office  or  trust. 

The  making  out  a  commission  is  conclusive 
evidence  of  an  appointment  to  an  office  for 
holding  which  a  commission  is  required ; 
Marbury  v.  Madison,  1  Cr.  (U.  S.)  137,  2  L. 
Ed.  60;  U.  S.  v.  Bradley,  10  Pet.  (U.  S.)  343, 
9  L.  Ed.  44S.  For  a  discussion  of  constitu- 
tional and  statutory  limitations  of  executive 
and  legislative  functions  in  respect  to  ap- 
pointments to  office,  see  30  Amer.  &  Eng. 
Corp-  Cas.  321,  note. 

The  governor  cannot  make  a  valid  appoint- 
ment to  an  office  which  at  the  time  is  right- 
fully held  by  an  incumbent  whose  term  has 
not  expired ;  State  v.  Peelle,  124  Ind.  515, 
24  N.  E.  440,  8  L.  R.  A.  228. 

As  distinguished  from  an  election,  it  seems  that 
an  appointment  is  generally  made  by  one  person,  or 
a  limited  number  acting  with  delegated  powers, 
while  an  election  Is  made  by  all  of  a  class. 

The  word  is  sometimes  used  in  a  sense  quite  akin 
to  this,  and  apparently  derived  from  it  as  denoting 
the  right  or  privilege  conferred  by  an  appoint- 
ment: thus,  the  act  of  authorizing  a  man  to  print 
the  laws  of  the  United  States  by  authority,  and  the 
right  thereby  conferred,  are  considered  such  an  ap- 
pointment, but  the  right  is  not  an  office;  Com.  v. 
Binns,  17  S.  &  R.  (Pa.)  219,  233.  And  see  Com.  v. 
Sutherland,  3  S.  &  R.  (Pa.)  157  ;  Cooper,  Justin.  599, 
604. 

In  Chancery  Practice.  The  exercise  of  a 
right  to  designate  the  person  or  persons  who 
are  to  take  the  use  of  real  estate.  2  Washb. 
R.  P.  302. 

By  whom  to  be  made. — It  must  be  made 
by  the  person  authorized ;  2  Bouv.  Inst.  § 
1922 ;  who  may  be  any  person  competent  to 
dispose  of  an  estate  of  his  own  in  the  same 
manner;  4  Kent  324;  Including  a  married 
woman;  1  Sngd.  Pow.  182;  3  C.  B.  578;  5 
id.  741 ;  Ladd  v.  Ladd,  8  How.  (U.  S.)  27,  12 
L.  Ed.  967;  even  though  her  husband  be  the 
appointee ;  Rush  v.  Lewis,  21  Pa.  72 ;  or  an 
infant,  if  the  power  be  simply  collateral;  2 
Washb.  R.  P.  (5th  ed.)  *317.  Where  two  or 
more  are  named  as  donees,  all  must  in  gen- 
eral join ;  Franklin  v.  Osgood,  14  Johns. 
(N.  Y.)  553 ;  but  where  given  to  several  who 
act  in  a  trust  capacity,  as  a  class,  it  may 
be  by  the  survivors;    Peter  v.  Beverly,   10 


Pet  (U.  S.)  564,  9  L.  Ed.  522;  Talnter  t. 
Clark,  13  Mete.  (Mass.)  220.  When  such  a 
right  is  devolved  upon  two  executors  and 
two  others  are  named  as  successors  In 
of  their  death,  no  others  can  execute  the 
trust  so  long  as  any  one  of  the  four  is  liv- 
ing and  has  not  declined  the  trust,  and  an 
administrator  c.  t.  a.  will  lie  liable  to  suit 
by  the  succeeding  trustee  for  trust  property 
with  which  he  intermeddles;  Hayes  v.  Pratt, 
147  U.  S.  557,  13  Sup.  Ct  503,  37  L.  Ed.  27'.). 

How  to  be  made. — A  vt  iy  precise  compli- 
ance with  the  directions  of  the  donor  is  nec- 
essary; 1  P.  Will.  740;  6  Mann.  &  G.  386; 
Ladd  v.  Ladd,  8  How.  (U.  S.)  30,  12  L.  EkL 
967;  having  regard  to  the  intention,  especial- 
ly in  substantial  matters;  Tudor,  Lead.  Cas. 
306;  3  Ves.  Ch.  421.  It  may  be  a  partial 
execution  of  the  power  only,  and  yet  be  val- 
id;  4  Cruise,  Dig.  205;  or,  if  excessive,  may 
be  good  to  the  extent  of  the  power;  2  Ves. 
Sen.  040;  3  Dru.  &  W.  339.  It  must  come 
within  the  spirit  of  the  power;  thus,  if  the 
appointment  is  to  be  to  and  amongst  several, 
a  fair  allotment  must  be  made  to  each  :  4 
Ves.  Ch.  771;  2  Vera.  Ch.  513;  otherwise, 
where  it  is  to  be  made  to  such  as  the  donee 
may  select;    5  Ves.  Ch.  857. 

The  effect  of  an  appointment  is  to  vest 
the  estate  in  the  appointee,  as  if  conveyed 
by  the  original  donor  ;•  2  Washb.  R.  P.  (5th 
ed.)  *320;  2  Crabb.  R.  P.  726,  741:  2  Sngd. 
Pow.  22;  Jackson  v.  Veeder,  11  Johns.  (X. 
Y.)  169.  Thus  where  the  appointment,  after 
an  estate  for  life,  is  to  a  lineal  descendant  of 
the  testator,  but  who  is  a  collateral  relation 
of  the  party  exercising  the  power,  the  gift 
is  not  subject  to  a  collateral  inheritance  tax ; 
Com.  v.  Williams'  Ex'rs,  13  Pa.  29. 

See  Illusory  Appointment;  Power.  Con- 
sult 2  Washb.  R.  P.  (5th  ed.)  *29S,  337;  Tu- 
dor, Lead.  Cas. ;  Chance,  Pow. ;  4  Greenl. 
Cruise,  Dig. 

APPOINTOR.  One  authorized  by  the 
donor,  under  the  statute  of  uses,  to  execute 
a  power.    2  Bouv.  Inst.  n.  1923. 

APPORTIONMENT.  The  division  or  dis- 
tribution of  a  subject-matter  in  proportion- 
ate parts.  Co.  Litt.  147:  1  Swanst  37,  n. ; 
1  Story,  Eq.  Jur.  (13th  ed.)   §  475  a. 

Of  Contracts.  The  allowance,  in  case  of 
the  partial  performance  of  a  contract,  of  a 
proportionate  part  of  what  the  party  would 
have  received  as  a  recompense  for  the  en- 
tire performance  of  the  contract  See  gen- 
erally Ans.  Contr.  291. 

Where  the  contract  is  to  do  an  entire  thing 
for  a  certain  specified  compensation,  there 
can  be  no  apportionment:  9  B.  &  C.  92 ; 
Quigley  v.  De  Haas.  82  Pa.  267;  Cox  v.  R. 
Co.,  44  Cal.  IS;  Cobum  v.  Hartford.  38  Conn. 
290;  Barker  v.  Reagan,  4  Helsk.  (Tenn.)  590; 
1  Washb.  B.  Pi  133,  549,  555;  2  id.  302;  but 
see  contra,  Ilollis  v.  Chapman,  36  Tex.  1. 
A  contract  for  the  sale  of  goods  is  entire; 
9  B.  &  C.  3S6 ;    Shinn  v.  Bodine,  60  Pa.  1S2, 


APPORTIONMENT 


216 


APPORTIONMENT 


100  Am.  Dec.  560 ;  but  where  there  has  been 
a  part  delivery  of  the  goods,  the  buyer  is  lia- 
ble on  a  quantum  valebant  if  he  retain  the 
pari  delivered.  9  B.  &  C.  3S6;  10  id.  441; 
Bowker  v.  Hoyt,  18  Pick.  (Mass.)  555  (but 
contra  in  New  York  and  Ohio;  Champlin 
v.  Rowley,  13  Wend.  (N.  Y.)  25S ;  Witherow 
v.  Witherow,  1G  Ohio,  238);  though  he  may 
return  the  part  delivered  and  escape  liabili- 
ties. A  contract  consisting  of  several  dis- 
tinct items,  and  founded  on  a  consideration 
apportioned  to  each  item,  is  several ;  Lueesco 
Oil  Co.  v.  Brewer,  66  Pa.  351.  The  question 
of  entirety  is  one  of  intention,  to  be  gathered 
from  the  contract.  2  Pars.  Contr.  (8th  ed.) 
*517.  Where  no  compensation  is  fixed,  the 
contract  is  usually  apportionable;  3  B.  & 
Ad.  404;  Cutter  v.  Powell,  2  Sm.  Lead.  Cas. 
22,  note  (q.  v.  on  this  whole  subject). 

Of  Annuities.  Annuities,  at  common  law, 
are  not  apportionable;  Wiggin  v.  Swett,  6 
Mete.  (Mass.)  194,  39  Am.  Dec.  716 ;  2  P.  W. 
501;  so  that  if  the  annuitant  died  before 
the  day  of  payment,  his  representative  is  en- 
titled to  no  proportionate  share  of  the  an- 
nuity for  the  time  which  has  elapsed  since 
last  payment;  16  Q.  B.  357;  12  Ves.  484; 
Heizer  v.  Heizer,  71  Ind.  526,  36  Am.  Rep. 
202;  Nading  v.  Elliott,  137  Ind.  261,  36  N.  E. 
695;  5  U.  C.  C.  P.  364;  Mower  v.  Sanford, 
76  Conn.  504,  57  Atl,  119,  63  L.  R.  A.  625, 
100  Am.  St.  Rep.  1008 ;  Henry  v.  Henderson, 
81  Miss.  743,  33  South.  960,  63  L.  R.  A.  616; 
Irving  v.  Rankine,  13  Hun  (N.  Y.)  147;  Stew- 
art v.  Swaim,  13  Phila.  (Pa.)  185;  but  by 
statute  11  Geo.  II.  it  was  enacted  that  an- 
nuities, rents,  dividends,  etc.,  and  all  other 
payments  of  every  description  made  payable 
at  fixed  periods,  should  be  apportioned ;  2 
P.  Wms.  501;  Gheen  v.  Osborn,  17  S.  &  R. 
(Pa.)  173  ;  3  Kent  471.  This  has  been  adopt- 
ed by  statute  or  decision  in  many  of  the 
states.  Equity  introduced  some  exceptions 
to  the  general  rule  that  annuities  are  not  ap- 
portionable, as  in  the  case  of  those  created 
for  maintenance  of  infants  and  married  wo- 
men living  apart  from  their  husbands;  Fish- 
er v.  Fisher,  5  Clark  (Pa.)  178;  Clapp  v. 
Astor,  2  Edw.  Ch.  (N.  Y.)  379;  Kearney  v. 
Cruikshank,  117  N.  Y.  95,  22  N.  E.  580;  Chase 
v.  Darby,  110  Mich.  314,  68  N.  W.  159,  64 
Am.  St.  Rep.  347;  2  P.  Wms.  501 ;  the  rea- 
son being  that  by  reason  of  legal  disabili- 
ties the  annuitants  might  be  unable  to  get 
credit  for  necessaries ;  Tracy  v.  Strong,  2 
Conn.  659 ;  and  the  exception  has  been  ex- 
tended to  eleemosynary  establishments;  16 
Beav.  385.  Another  exception  is  of  an  an- 
nuity accepted  in  lieu  of  dower ;  Gheen  v. 
Osborn,  17  S.  &  R.  (Pa.)  171;  In  re  Lacka- 
wanna Iron  &  Coal  Co.,  37  N.  J.  Eq.  26 ;  but 
not  when  payable  at  the  termination  of  the 
yearly  periods  commencing  with  the  death 
of  testator;  Mower  v.  Sanford,  76  Conn. 
504,  57  Atl.  119,  63  L.  R  A.  625,  100  Am.  St. 
Rep.  1008.     See  63  L.  R.  A.  616,  note. 

Of   Wages.    Wages  are  not  apportionable 


where  the  hiring  takes  place  for  a  definite 
period;  5  B.  &  P.  651;  11  Q.  B.  755;  Olm- 
stead  v.  Beale,  19  Pick.  (Mass.)  528;  Hansell 
v.  Erickson,  28  111.  257;  Miller  v.  Goddard, 
34  Me.  102,  56  Am.  Dec.  638;  Sickels  v.  Pat- 
tison,  14  Wend.  (N.  Y.)  257,  28  Am.  Dec. 
527;  Hawkins  v.  Gilbert,  19  Ala.  54;  contra, 
Britton  v.  Turner,  6  N.  H.  481,  26  Am.  Dec. 
713. 

Of  Incumbrances.  The  ascertainment  of 
the  amounts  which  each  of  several  parties 
interested  in  an  estate  shall  pay  towards 
the  removal  or  in  support  of  the  burden  of 
an  incumbrance. 

As  between  a  tenant  for  life  and  the  re- 
mainderman, the  tenant's  share  is  limited 
to  keeping  down  the  interest ;  but  not  be- 
yond the  amount  of  rent  accruing ;  Doane's 
Ex'r  v.  Doane,  46  Vt.  485 ;  31  E.  L.  &  E.  345 ; 
if  the  principal  is  paid,  the  tenant  for  life 
must  pay  a  gross  sum  equivalent  to  the 
amount  of  all.  the  interest  he  would  pay, 
making  a  proper  estimate  of  his  chances  of 
life ;  1  Washb.  R.  P.  (5th  ed.)  *96 ;  1  Story, 
Eq.  Jur.  (13th  ed.)  §  487.  See  Jones  v.  Sher- 
rard,  22  N.  C.  179 ;  Swaine  v.  Perine,  5  Johns. 
Ch.  (N.  Y.)  482,  9  Am.  Dec.  318 ;  Houghton  v. 
Hapgood,  13  Pick.  (Mass.)  158. 

Of  Rent.  The  allotment  of  their  shares 
in  a  rent  to  each  of  several  parties  owning  it. 

The  determination  of  the  amount  of  rent 
to  be  paid  when  the  tenancy  is  terminated 
at  some  period  other  than  one  of  the  regu- 
lar intervals  for  the  payment  of  rent. 

An  apportionment  of  rent  follows  upon  ev- 
ery transfer  of  a  part  of  the  reversion ;  Mon- 
tague v.  Gay,  17  Mass.  439;  Nellis  v.  Lath- 
rop,  22  Wend.  (N.  Y.)  121,  34  Am.  Dec.  285; 
Reed  v.  Ward,  22  Pa.  144 ;  see  Blair  y.  Clax* 
ton,  18  N.  Y.  529;  or  where  there  are  sev- 
eral assignees,  as  in  case  of  a  descent  to 
several  heirs ;  Bank  of  Pennsylvania  v.  Wise, 
3  Watts  (Pa.)  394;  Crosby  v.  Loop,  13  111. 
625 ;  Cole  v.  Patterson,  25  Wend.  (N.  Y.)  456 ; 
10  Coke  128;  Comyn,  Land.  &  Ten.  422; 
where  a  levy  for  debt  is  made  on  a  part  of 
the  reversion,  or  it  is  set  off  to  a  widow  for 
dower ;  1  Rolle,  Abr.  237 ;  but  whoever  owns 
at  the  time  the  rent  falls  due  is  entitled  to 
the  whole;  Martin  v.  Martin,  7  Md.  368,  61 
Am.  Dec.  364;  Burden  of  Thayer,  3  Mete. 
(Mass.)  76,  37  Am.  Dec.  117.  See  Williams, 
Ex.  (7th  Am.  ed.)  *730.  If  a  tenancy  at  will 
is  terminated  between  two  rent  days  by  a 
conveyance  of  the  premises  from  the  land- 
lord to  a  third  person,  the  tenant  is  not  lia- 
ble and  the  rent  cannot  be  apportioned ;  Em- 
mes  v.  Feeley,  132  Mass.  346. 

Rent  is  not,  at  common  law,  apportion- 
able as  to  time;  Smith,  Land.  &  T.  134;  3 
Kent  470;  Menough's  Appeal,  5  W.  &  S.  (Pa.) 
432;  Perry  v.  Aldrich,  13  N.  H.  343,  38 
Am.  Dec.  493;  Stilwell  v.  Doughty,  3  Bradf. 
Surr.  (N.  Y.)  359.  It  is  apportionable  by 
statute  11  Geo.  II.  c.  19,  §  15;  and  similar 
statutes  have  been  adopted  in  this  country 
to  some  extent ;  ,  2  Washb.  R,  P.   (5th  ed.) 


APPORTIONMENT 


217 


APPOSAL,  OF  SHERIFFS 


♦289;  Perry  v.  Aldrich,  13  N.  H.  343,  38 
Am.  Dec.  493 ;  Codman  v.  Jenkins,  14  Mass. 
94;  1  Hill,  Abr.  c.  1G,  §  50.  In  the  absence- 
of  express  statute  or  agreement,  it  is  not; 
Dexter  v.  Phillips,  121  Mass.  178,  23  Aim 
Rep.  261.  See  Landlord  and  Tenant.  As 
to  apportionment  of  dividends  on  stock  as 
between  life  tenant  and  remainderman,  see 
Dividend. 

Of  Representatives.  Representatives  sball 
be  apportioned  among  the  several  states  ac- 
cording to  their  respective  numbers,  count- 
ing the  whole  number  of  persons  in  each 
state,  excluding  Indians  not  taxed.  But 
when  the  right  to  vote  at  any  election  for 
the  choice  of  electors  for  president  and  vice- 
president  of  the  I'nited  States,  representa- 
tives in  congress,  the  executive  and  judicial 
officers  of  a  state,  or  the  members  of  the  leg- 
islature thereof,  is  denied  to  any  of  the  male 
inhabitants  of  such  state,  being  twenty-one 
years  of  age,  and  citizens  of  the  United 
States,  or  in  any  way  abridged,  except  for 
participation  in  rebellion,  or  other  crime, 
the  basis  of  representation  therein  shall  be 
reduced  to  the  proportion  which  the  number 
of  such  male  citizens  shall  bear  to  the  whole 
number  of  male  citizens  twenty-one  years  of 
age  in  such  state;  Art.  14,  §  2,  U.  S.  Const. ; 
Story,  Const.  1963. 

The  actual  enumeration  shall  be  made 
within  three  years  after  the  first  meeting 
of  the  congress  of  the  United  States,  and 
within  every  subsequent  term  of  ten  years, 
in  such  manner  as  they  shall  by  law  direct. 
The  number  of  representatives  shall  not  ex- 
ceed one  for  every  30,000;  but  each  state 
shall  have  at  least  one  representative;  U. 
S.  Const  Art.  1,  §  2. 

The  Revised  Statutes  of  the  United  States 
provide  that  from  and  after  March  3,  1893, 
the  house  of  representatives  shall  be  com- 
posed of  356  members,  and  provide  the  num- 
ber to  which  each  state  is  entitled.  Upon 
the  admission  of  a  new  state,  the  representa- 
tives to  be  assigned  to  it  are  in  addition  to 
the  above  356. 

The  first  house  of  representatives  consisted  of  65 
members,  or  one  for  every  30,000  of  the  represent- 
ative population.  By  the  census  of  1790,  it  con- 
sisted of  106  representatives,  or  one  for  every  33,000  ; 
by  the  census  of  1800,  142  representatives,  or  one 
for  every  33,000  ;  by  the  census  of  1810,  183  repre- 
sentatives, or  one  for  every  35,000  ;  by  the  census  of 
1820,  213  representatives,  one  for  every  40,000;  by 
the  census  of  1830,  242  representatives,  or  one  for 
•very  47,700;  by  the  census  of  1840,  223  representa- 
tives, or  one  for  every  70,680;  by  the  census  of 
1850,  and  under  the  act  of  May  23,  1S50,  the  number 
of  representatives  was  increased  to  233,  or  one  for 
every  93,423  of  the  representative  population. 

Under  the  census  of  1860,  the  ratio  was  ascertained 
to  be  for  124,183,  upon  the  basis  of  233  members  ;  but 
by  the  act  of  4th  March,  1862,  the  number  of  repre- 
sentatives was  increased  to  241.  This,  by  the  act 
of  1872,  Feb.  2,  Rev.  Stat.  U.  S.  1878,  §§  20,  21,  was 
Increased  to  292  members,  and  by  act  of  1891,  Feb. 
7,  the  number  was  increased  to  356.  By  act  of  Jan. 
16,  1901,  the  number  was  increased  to  386 ;  and  by 
Act  of  August  8,  1911,   to  433. 

See  Representative. 


APPOSAL  OF  SHERIFFS.  The  charging 
them  with  money  received  upon  account  of 
the   Exchequer.     22  &  23  Car.  II.;    Co  well. 

APPOSE  R.     An  officer  of  the  Exchequer, 

whose  duty  it  was  to  examine  the  sheriffs  in 
regard  to  their  accounts  handed  in  to  the 
exchequer.  He  was  also  called  the  foreign 
apposer.    The  office  is  now  abolished. 

APPOSTILLE.  In  French  Law.  An  ad- 
dition, or  annotation,  made  in  the  margin 
of  a  writing.    Merlin,  Rupert. 

APPRAISE.  To  value  property  at  what 
it  is  worth.  In  a  statute  directing  certain 
officers  to  "appraise  all  taxable  property  <;■' 
its  full  and  true  value  in  money,"  the  words 
italicized  are  superfluous  and  add  no  mean- 
ing which  the  statute  would  not  have  had 
without  them  ;  Cocheco  Mfg.  Co.  v.  Strafford, 
51   N.   H.  455,  482. 

APPRAISEMENT.  A  just  valuation  of 
property. 

Appraisements  are  required  to  be  made 
of  the  property  of  decedents,  of  insolvents, 
and  others;  an  inventory  (q.  v.)  of  the  goods 
ought  to  be  made,  and  a  just  valuation  put 
upon   them. 

APPRAISER.  A  person  appointed  by  com- 
petent authority  to  value  goods  or  real  es- 
tate. An  importer  is  entitled  to  have  a  mer- 
chant appraiser  who  is  familiar  with  the 
character  and  value  of  the  goods  in  ques- 
tion, and  in  a  suit  brought  to  recover  an 
excess  of  duties  he  may  raise  the  question  of 
want  of  qualification  of  the  appraiser;  Oel- 
bermann  v.  Merritt,  123  U.  S.  356,  8  Sup.  Ct 
151,  31  L.  Ed.  164.  As  to  Board  of  General, 
Appraisers,  see  Customs  Duties.  As  early 
as  Edw.  I.  the  judges  were  ordered  to  make 
provision  for  appraisers. 

APPRECIATE.  To  estimate  justly.  The 
ability  of  a  testator  to  appreciate  his  rela- 
tion to  those  who  had  a  claim  upon  his  boun- 
ty is  said  to  be  an  element  of  testamentary 
capacity;  Brace  v.  Black,  125  111.  oo,  17  N. 
E.  GO. 

APPREHEND.  To  understand,  conceive, 
believe.     Golden  v.  State,  25  Ga.  527,  531. 

APPREHENSION.  The  capture  or  arrest 
of  a  person  on  a  criminal  charge. 

The  word  strictly  construed  means  the 
seizing  or  taking  hold  of  a  man  and  detain- 
ing him  with  a  view  to  his  ultimate  sur- 
render. It  may  be  used  when  he  is  already 
in  custody;    L.  R.  9  Q.  B.  U.  701,  705. 

The  term  apprehension  is  more  often  applied  to 
criminal  cases,  aud  arrest  to  civil  cases;  as,  one 
having  authority  may  arrest  on  civil  process,  and 
apprehend  on  a  criminal  warrant.     See  Arrest. 

APPRENTICE.  A  person  bound  in  the 
form  of  law  to  a  master,  to  learn  from  him 
his  art,  trade,  or  business,  and  to  serve  him 
during   the  time   of    his   apprenticeship.     1 


APPRENTICE 


218 


APPRENTICESHIP 


Bla.  Com.  426 ;   2  Kent  211 ;   Altemus  v.  Ely, 
3  Rawle  (Pa.)  307. 

Formerly  the  name  of  apprentice  en  la  ley  was 
given  indiscriminately  to  all  students  of  law.  In 
the  reign  of  Edward  IV.  they  were  sometimes  called 
apprenticii  ad  barras.  And  in  some  of  the  ancient 
law-writers  the  terms  apprentice  and  barrister  are 
synonymous ;  Co.  2d  Inst.  214 ;  Eunomus,  Dial.  2, 
§  53,  p.  155;    21  L.  Q.   R.  353.     See  Barrister. 

APPRENTICESHIP.  A  contract  by  which 
one  person  who  understands  soine  art,  trade, 
or  business,  and  is  called  the  muster,  under- 
takes to  teach  the  same  to  another  person, 
commonly  a  minor,  and  called  the  appren- 
tice, who,  on  his  part,  is  bound  to  serve  the 
master,  during  a  definite  period  of  time,  in 
such  art,  trade,  or  business. 

The  term  during  which  an  apprentice  is 
to  serve.     Pardessus,  Droit  Comm.  n.  34. 

A  contract  of  apprenticeship  is  not  invalid 
because  the  master  to  whom  the  apprentice 
is  bound  is  a  corporation ;    [1S91]  1  Q.  B.  75. 

At  common  law,  an  infant  may  bind  him- 
self apprentice  by  indenture,  because  it  is 
for  his  benefit;  5  M.  &  S.  257;  5  D.  &  R. 
339.  But  this  contract,  both  in  England 
and  in  the  United  States,  on  account  of  its 
liability  to  abuse,  has  been  regulated  by 
statute,  and  is  not  binding  upon  the  infant 
unless  entered  into  by  him  with  the  consent 
of  the  parent  or  guardian  (the  father,  if 
both  parents  be  alive,  being  the  proper  party 
to  such  consent;  Com.  v.  Crommie,  8  W.  & 
S.  [Pa.]  339),  or  by  the  parent  and  guardian 
for  him,  with  his  consent,  such  consent  to  be 
made  a  part  of  the  contract ;  2  Kent  261 ; 
Matter  of  M'Dowle,  8  Johns.  (N.  Y.)  328; 
Whitmore  v.  Whitcomb,  43  Me.  458;  Balch 
v.  State,  12  N.  H.  437;  Pierce  v.  Massen- 
"burg,  4  Leigh  (Va.)  493,  26  Am.  Dec.  333; 
Harney  v.  Owen,  4  Blackf.  (Ind.)  337,  30  Am. 
Dec.  662;  or,  if  the  infant  be  a  pauper,  by 
the  proper  authorities  without  his  consent ; 
Com.  v.  Jones,  3  S.  &  R.  (Pa.)  158;  Vinal- 
haven  v.  Ames,  32  Me.  299;  Baker  v.  Win- 
frey, 15  B.  Monr.  (Ky.)  499;  Glidden  v. 
Town  of  Unity,  30  N.  H.  104;  Brewer  v. 
Harris,  5  Gratt.  (Va.)  285.  The  contract  need 
not  specify  the  particular  trade  to  be  taught, 
but  is  sufficient  if  it  be  a  contract  to  teach 
such  manual  occupation  or  branch  of  busi- 
ness as  shall  be  found  best  suited  to  the 
genius  or  capacity  of  the  apprentice ;  Fowl- 
er v.  Hollenbeck,  9  Barb.  (N.  Y.)  309;  Peo- 
ple v.  Pillow,  1  Sandf.  (N.  Y.)  672.  Where 
the  apprentice  is  bound  to  accept  employ- 
ment only  from  the  master,  but  there  is  no 
covenant  by  the  latter  to  provide  employ- 
ment, and  the  contract  may  be  terminated 
only  by  him,  it  is  invalid  as  being  unreason- 
able and  not  for  the  benefit  of  the  infant; 
45  Ch.  Div.  430.  In  a  common  indenture  of 
apprenticeship  the  father  is  bound  for  the 
performance  of  the  covenants  by  the  son; 
3  B.  &  Aid.  59.  But  to  an  action  of  covenant 
against  the  father  for  the  desertion  of  the 
son,  it  is  a  sufficient  answer  that  the  master 


has  abandoned  the  trade  which  the  son  was 
apprenticed  to  learn,  or"  that  he  has  driven 
the  son  away  by  cruel  treatment;  4  Eng.  L. 
&  Eq.  412;  Coffin  v.  Bassett,  2  Pick.  (Mass.) 
357. 

This  contract  must  generally  be  entered 
into  by  indenture  or  deed;  4  M.  &  S.  383; 
Com.  v.  Wilbank,  10  S.  &  R.  (Pa.)  416; 
Squire  v.  Whipple,  1  Vt.  69;  and  is  to  con- 
tinue, if  the  apprentice  be  a  male,  only  dur- 
ing minority,  and  if  a  female,  only  until  she 
arrives  at  the  age  of  eighteen;  2  Kent  264; 
5  Term  715.  An  apprenticeship  other  than 
one  entered  into  by  indenture  in  conformity 
with  the  statute  is  not  binding:  Lally  v. 
Cantwell,  40  Mo.  App.  44.  The  English  stat- 
ute law  has  been  generally  adopted  in  the 
United  States,  with  some  variations ;  2  Kent 
264. 

An  infant's  deed  of  apprenticeship  under 
the  English  Employers  and  Workmen  Act  of 
1875,  will  not  bind  him  unless  reasonable 
and  for  his  benefit;  but  this  does  not  mean 
as  to  all  its  terms,  since  provision  for  sus- 
pension of  wages  during  a  lockout,  due 
solely  to  the  master,  is  bad ;  [1893]  1  Q.  B. 
310 ;  but  one  confined  to  stoppage  by  reason 
of  accident  beyond  control  of  master  is  good  ; 
[1899]  2  Q.  B.  1. 

The  duties  of  the  master  are  to  instruct 
the  apprentice  by  teaching  him  the  knowl- 
edge of  the  art  which  he  has  undertaken  to 
teach  him,  though  he  will  be  excused  for 
not  making  a  good  workman  if  the  appren- 
tice is  incapable  of  learning  the  trade,  the 
burden  of  proving  which  is  on  the  master ; 
Barger  v.  Caldwell,  2  Dana  (Ky.)  131 ;  Clan- 
cy v.  Overman,  18  N.  C.  402.  He  ought  to 
watch  over  the  conduct  of  the  apprentice, 
giving  him  prudent  advice  and  showing  him 
a  good  example,  and  fulfilling  towards  him 
the  duties  of  a  father,  as  in  his  character 
of  master  he  stands  in  loco  parentis.  He 
is  also  required  to  fulfil  all  the  covenants  he 
has  entered  into  by  the  indenture.  He  must 
not  abuse  his  authority,  either  by  bad  treat- 
ment or  by  employing  his  apprentice  in 
menial  employments  wholly  unconnected 
with  the  business  he  has  to  learn,  or  in  any 
service  which  is  immoral  or  contrary  to  law ; 
4  Clark  &  F.  234;  Hall  v.  Gardner,  1  Mass. 
172 ;  but  may  correct  him  with  moderation 
for  negligence  and  misbehavior ;  Com.  v. 
Baird,  1  Ashm.  (Pa.)  267;  4  Keb.  661,  pi.  50; 
People  v.  Sniffen,  1  Wheel.  Cr.  Cas.  (N.  Y.) 
502.  He  cannot  dismiss  his  apprentice  ex- 
cept by  consent  of  all  the  parties  to  the  in- 
denture; Graham  v.  Graham,  1  S.  &  R.  (Pa.) 
330;  Nickerson  v.  Easton,  12  Pick.  (Mass.) 
110 ;  2  Burr.  766,  801 ;  or  with  the  sanction 
of  some  competent  tribunal;  Powers  v. 
Ware,  2  Pick.  (Mass.)  451 ;  Warner  v.  Smith, 
8  Conn.  14;  Carmand  v.  Wall,  1  Bail.  (S.  C.) 
209  ;  even  though  the  apprentice  should  steal 
his  master's  property,  or  by  reason  of  incur- 
able illness  become  incapable  of  service,  the 


APPRENTICESHIP 


219 


APPRENTICESHIP 


covenants  of  the  master  and  apprentice 
being  independent;  Powers  v.  Ware,  2  Pick. 
(Mass.)  451;  2  Dowl.  &  R.  465;  1  B.  &  C. 
460;  5  Q.  B.  447.  If  the  apprentice  proves 
to  be  an  habitual  thief,  he  may  be  properly 
dismissed ;  [1891]  1  Q.  B.  431.  The  master 
cannot  remove  the  apprentice  out  of  the 
state  under  the  laws  of  which  he  was  ap- 
prenticed, unless  such  removal  is  provided 
for  in  the  contract  or  may  be  implied  from 
its  nature;  and  if  he  do  so  remove  him,  the 
contract  ceases  to  be  obligatory ;  Com.  v. 
Edwards,  6  Binn.  (Pa.)  202;  Com.  v.  Dea- 
con, 6  S.  &  R.  (Pa.)  526;    Coffin  v.  Bassett. 

2  Pick.  (Mass.)  357;  Vickere  v.  Pierce,  12 
Me.  315 ;  Walters  v.  Morrow,  1  Houst.  (Del.) 
527.  An  infant  apprentice  is  not  capable  in 
law   of   consenting    to    his   own    discharge ; 

3  B.  &  C.  4S4 ;  nor  can  the  justices  order 
money  to  be  returned  on  the  discharge  of 
an  apprentice;  Stra.  69;  contra,  Salk.  67, 
68,  490 ;  11  Mod.  110 ;  12  id.  498,  553.  After 
the  apprenticeship  is  at  an  end,  the  master 
cannot  retain  the  apprentice  on  the  ground 
that  he  has  not  fulfilled  his  contract,  unless 
specially  authorized  by  statute. 

An  apprentice  is  bound  to  obey  his  master 
in  all  his  lawful  commands,  take  care  of  his 
property,  and  promote  his  interest,  endeavor 
to  learn  his  trade  or  business,  and  perform 
all  the  covenants  in  his  indenture  not  con- 
trary to  law.  He  must  not  leave  his  mas- 
ter's service  during  the  terms  of  his  appren- 
ticeship ;  James  v.  Le  Roy,  6  Johns.  (N.  Y.) 
274;  Coffin  v.  Bassett,  2  Pick.  (Mass.)  357. 
The  apprentice  is  entitled  to  payment  for 
extraordinary  services  when  promised  by  the 
master ;  Ex  parte  Steiner,  1  Penn.  L.  Jour. 
Rep.  368 ;  see  Bailey  v.  King,  1  Whart.  (Pa.) 
113,  29  Am.  Dec.  42;  and  even  when  no  ex- 
press promise  has  been  made,  under  peculiar 
circumstances ;  Mason  v.  The  Blaireau,  2 
Cra.  (U.  S.)  240,  270,  2  L.  Ed.  266 ;  3  C.  Rob. 
Adm.  237 ;  but  see  Bailey  v.  King,  1  Whart. 
(Pa.)  113,  29  Am.  Dec.  42.  Upon  the  death 
of  the  master,  the  apprenticeship,  being  a 
personal  relation,  is  dissolved ;  Strange  284 ; 
Eastman  v.  Chapman,  1  Day  (Conn.)  30. 

To  be  binding  on  the  apprentice,  the  con- 
tract must  be  made  as  prescribed  by  statute ; 
Harper  v.  Gilbert,  5  Cush.  (Mass.)  417;  but 
if  not  so  made,  it  can  only  be  avoided  by  the 
apprentice  himself;  Fowler  v.  Hollenbeck, 
9  Barb.  (N.  Y.)  309 ;  In  re  McDowle,  8  Johns. 
(N.  Y.)  328;  Austin  v.  McCluney,  5  Strobh. 
(S.  C.)  104 ;  and  if  the  apprentice  do  elect 
to  avoid  it,  he  will  not  be  allowed  to  recover 
wages  for  his  services,  the  relation  being 
sufficient  to  rebut  any  promise  to  pay  which 
might  otherwise  be  implied ;  Maltby  v.  Har- 
wood,  12  Barb.  (N.  Y.)  473;  Williams  v. 
Finch,  2  id.  208;  but  see  Himes  v.  Howes, 
13  Mete.  (Mass.)  80.  The  master  will  be 
bound  by  his  covenants,  though  additional 
to  those  required  by  statute ;  Davis  v.  Brat- 
ton,  10  Humphr.  (Tenn.)  179. 


Where  an  apprentice  is  employed  by  a 
third  person  without  the  knowledge  or  con- 
sent of  the  master,  the  master  is  entit: 
his  earnings,  whether  the  person  who  employ- 
ed him  did  or  did  not  know  that  he  was  an 
apprentice;  James  v.  Le  Roy,  <;  Johns.  (N. 
Y.)  274;  Bowes  v.  Tibbets,  7  GreenL  (Me.) 
457;  but  in  an  action  for  harboring  or  en- 
ticing away  an  apprentice,  a  knowledge  of 
the  apprenticeship  by  the  defendant  is  a 
prerequisite  to  recovery ;  Ferguson  v.  Tuck- 
er, 2  Harr.  &  G.  (Md.)  182;  Smart  v.  Simp- 
son, 1  Wend.  (N.  y.)  376;  McKay  v.  Bryson, 
27  N.  C.  21G.  A  master  is  not  entitled  to  the 
extraordinary  earnings  which  do  not  inter- 
fere with  his  services ;  an  apprentice  is 
therefore  entitled  to  salvage,  in  opposition 
to  his  master's  claim ;  Mason  v.  The  Blai- 
reau, 2  Cra.  (U.  S.)  270,  2  L.  Ed.  266. 

The  master  has  a  right  of  action  against 
any  one  injuring  his  apprentice  causing  a 
loss  of  his  service;  Ames  v.  Ry.  Co.,  117 
Mass.  541,  19  Am.  .Rep.  426;  11  Ad.  &  El. 
301. 

Apprenticeship  is  a  relation  which  cannot 
be  assigned  at  common  law ;  Com.  v.  Bark- 
er, 5  Binn.  (Pa.)  423 ;  Dougl.  70 ;  Tucker  v. 
Magee,  18  Ala.  99 ;  1  Ld.  Raym.  6S3 ;  though, 
if  under  such  an  assignment  the  apprentice 
continue  with  his  new  master,  with  the  con- 
sent of  all  the  parties  and  his  own,  it  will 
be  construed  as  a  continuation  of  the  old 
apprenticeship;  Dougl.  70;  Town  of  Guild- 
erland  v.  Town  of  Knox,  5  Cow.  (N.  Y.)  363  : 
Shoppard's  Adm'r  v.  Kelly,  2  Bail.  (S.  C.)  93. 
But  in  some  states  the  assignment  of  in- 
dentures of  apprenticeship  is  authorized  by 
statute;  Com.  v.  Vanlear,  1  S.  &  R.  (Pa.) 
249;  Com.  v.  Jones,  3  S.  &  R.  (Pa.)  161; 
Phelps  v.  Culver,  6  Vt.  430.  See,  generally, 
2  Kent  261;-  Bacon,  Abr.  Master  and  Serv- 
ant; 1  Saund.  313.  The  law  of  France  is 
very  similar  to  our  own ;  Pardessus,  Droit 
Comm.  nn.  51S,  522. 

See  Binding  Out. 

APPROACH,  RIGHT  OF.  In  International 
Law.  The  right  to  draw  near  to  a  vessol 
in  order  to  ascertain  the  nationality  of  its 
flag.  In  The  Marianna  Flora,  11  Wheat 
(U.  S.)  43,  44,  6  L.  Ed.  405,  it  was  held 
that  the  right  of  approach  in  time  of 
peace  was  indispensable  for  the  exercise  by 
public  vessels  of  their  authority  to  arrest 
pirates  and  other  offenders.  Kent  under- 
stood it  to  be  equivalent  to  the  right  of  visit 
(q.  v.).  1  Kent  153.  At  present  the  right 
of  approach  has  no  existence  apart  from 
the  right  of  visit.     See  Visit  ;    Search. 

APPROBATE  AND  REPROBATE.  In 
Scotch  Law.  To  approve  and  reject.  To  at- 
tempt to  take  advantage  of  one  part  of  a 
deed  and  to  reject  the  rest. 

The  doctrine  of  approbate  and  reprobate 
is  the  English  doctrine  of  election.  A  party 
cannot    both   approbate    and    reprobate  the 


APPROBATE  AND  REPROBATE   220  APPROPRIATION  OF  PAYMENTS 


same  deed;  4  Wils.  &  S.  Hou.  L.  460;  1 
Ross,  Lead.  Cas.  617;  Pat.  Comp.  710;  1 
BeU,  Comm.  146. 

APPROPRIATION.  The  perpetual  annex- 
ation of  an  ecclesiastical  benefice  which  is 
the  general  property  of  the  church,  to  the  use 
of  some  spiritual  corporation,  either  sole  or 
aggregate.     See  Impropriation. 

It  corresponds  with  impropriation,  which  is  set- 
ting apart  a  benefice  to  the  use  of  a  lay  corporation. 
The  name  came  from  the  custom  of  monks  in  Eng- 
land to  retain  the  churches  in  their  gift  and  all  the 
profits  of  them  in  proprio  usu  to  their  own  imme- 
diate benefit.     1   Burns,  Bccl.   Law  71. 

To  effect  a  good  appropriation,  the  king's 
license  and  the  bishop's  consent  must  first 
be  obtained.  When  the  corporation  having 
the  benefice  is  dissolved,  the  parsonage  be- 
comes disappropriate  at  common  law ;  Co. 
Litt.  46;  1  Bla.  Com.  3S5;  1  Hagg.  Eccl. 
162.  Tbere  have  been  no  appropriations 
since  the  dissolution  of  monasteries.  For 
the  form  of  an  appropriation,  see  Jacob,  In- 
trod.  411. 

APPROPRIATION  OF  PAYMENTS.  The 
application  of  a  payment  made  to  a  creditor 
by  his  debtor,  to  one  or  more  of  several 
debts. 

The  debtor  has  the  first  right  of  appropri- 
ation ;   2  B.  &  C.  72.    No  precise  declaration 
is  required  of  him,  his  intention    (Terhune 
v.  Colton,  12  N.  J.  Eq.  233;    id.  312),  when 
made    known,    being    sufficient;     Bayley    v. 
Wynkoop,    5   Gilman    (111.)    449;    Randall   v. 
Parramore,  1  Fla.  409;   7  Beav.  10;    King  v. 
Andrews,   30   Ind.    429;    Jones  v.   Williams, 
39  Wis.  300;    Hansen  v.  Rounsavell,   74  111. 
238;     Levystein    v.    Whitman,    59    Ala.   345; 
Adams  Exp.  Co.  v.  Black,  62  Ind.  128 ;    Bean 
v.   Brown,   54  N.    H.  395.     Still,   such  facts 
must  be  proved  as  will  lead  a  jury  to  infer 
that  the  debtor  did  purpose  the  specific  ap- 
propriation claimed  ;    4  Ad.  &  E.  840 ;    Self- 
ridge  v.  Bank,  8  W.  &  S.  (Pa.)  320 ;    Pindall's 
Ex'r  v.  Bank,  10  Leigh  (Va.)  481 ;  Rackley  v. 
Pearce,  1  Ga.  241 ;    Hall  v.  Marston,  17  Mass. 
575 ;    Runyon  v.  Latham,  27  N.  C.  551 ;    Mil- 
ler v.  Trevilian,  2  ;Rob.  (A7a.)  2,  27;    Boutell 
v.    Mason,    12' Vt.    608;     Franklin    Bank    v. 
Cooper,  36  Me.  222 ;    Bosley  v.  Porter,  4  J.  J. 
Marsh.    (Ky.)    621;  Mitchell  v.  Dall,   4  Gill 
&  J.  (Md.)  361.     An  entry  made  by  the  debt- 
or in  his  own  book  at  the  time  of  payment 
is  an   appropriation,  if  made  known  to  the 
creditor;    but  otherwise,  if  not  made  known 
to  him.     The  same  rule  applies  to   a  cred- 
itor's entry  communicated  to  his  debtor;  2 
B.  &  C.  65;   Van  Rensselaer's  Ex'rs  v.  ;Rob- 
erts,  5  Denio  (N.  Y.)  470;    Seymour  v.  Mar- 
vin, 11  Barb.  (N.  Y.)  80.     The  appropriation 
must  be  made  by  the  debtor  at  or  before  the 
time  of  payment;    suit  fixes  the  appropria- 
tion;   Haynes  v.  Waite,  14  Cal.  446;    Frazer 
v.    Miller,    7   Wash.   521,  35   Pac.  427.     The 
intention  to  appropriate  may  be  referred  to 
the  jury   on  the  facts  of  the   transaction ; 


West  Branch  Bank   v.  Moorehead,  5  W.  & 
S.  (Pa.)  542. 

The  creditor  may  apply  the  payment,  as  a 
general  rule,  if  the  debtor  does  not ;    Jones 
v.  TJ.  S.,  7  How.  6S1,  12  L.  Ed.  870;    Presi- 
dent, etc.,  of  Washington  Bank  v.  Prescott, 
20  Pick.  (Mass.)  339;    Watt  v.  Hoch,  25  Pa. 
411 ;    Forretier  v.  Guerrineau's  Creditors,  1 
McCord  (N.  C.)  308 ;  Blinn  v.  Chester,  5  Day 
(Conn.)  166;    Brady's  Adm'r  v.  Hill,  1  Mo. 
315,    13  Am.   Dec.  503;    Arnold   v.  Johnson, 
1  Scam.  (111.)  196;    Whitaker  v.  Groover,  54 
Ga.   174;    Jones  v.   Williams,  39  Wis.  300; 
Bell   v.   Radcliff,  32  Ark.   645;    Burbank  v. 
McCluer,  54  N.  H.  345;    Frazer  v.  Miller,  7 
Wash.  521,  35  Pac.  427;    Farren  v.   McDon- 
nell, 74  Hun   176,  26  N.  Y.  Supp.  619 ;  North- 
ern Nat.  Bank  v.  Lewis,  78  Wis.  475,  47  N. 
W.  834 ;    Green  v.  Ford,  79  Ga.  130,  3  S.  E. 
624.     In  the  absence  of  directions,  the  cred- 
itor  may  apply  credits  to  the  least   secure 
items  of  his    claim ;     Hildreth   v.   Davis,   6 
Kulp  (Pa.)  336.    But  there  are  some  restric- 
tions upon  this  right.    The  debtor  must  have 
known  and  waived  his  right  to  appropriate. 
Hence    an   agent   cannot    always   apply   his 
principal's  payment.     He  cannot,  on  receipt 
of  money  due  his  principal,  apply  the  funds 
to  debts  due  himself  as  agent,  selecting  those 
barred    by    the    statute    of    limitations;    1 
Mann.  &  G.  54 ;   Colby  v.  Cressy,  5  N.  H.  237. 
A  prior  legal  debt  the  creditor  must  prefer 
to  a  posterior  equitable  debt.     Where  only 
one  of   several  debts  is  valid,  all   the   pay- 
ments must  be  applied  to  this,   irrespective 
of  its   order   in   the   account;     Backman  v. 
Wright,  27  Vt.  187,  65  Am.  Dec.  187.    Wheth- 
er, if  the  equitable  be  prior,  it  must  first  be 
paid,  see  Baker  v.  Stackpoole,  9  Cow.  (N.  Y.) 
420,  18  Am.  Dec.  508 ;    1  C.  &  M.  33. 

If  the  creditor  is  also  trustee  for  another 
creditor  of  his  own  debtor,  he  must  apply 
the  unappropriated  funds  pro  rata  to  his 
own  claims  and  those  of  his  cestui  que 
trust;  Scott  v.  Ray,  18  Pick.  (Mass.)  361. 
But  if  the  debtor,  besides  the  debts  in  his 
own  right,  owe  also  debts  as  executor  or 
administrator,  the  unappropriated  funds 
should  first  be  applied  to  his  personal  debt, 
and  not  to  his  debts  as  executor;  Fowke  v. 
Bowie,  4  Harr.  &  J.  (Md.)  566;  Sawyer  y. 
Toppan,  14  N.  H.  352;  2  Dowl.  Pari.  Cas. 
477.  A  creditor  cannot  apply  unappropriat- 
ed funds  to  such  of  his  claims  as  are  illegal 
and  not  recoverable  at  law;  3  B.  &  C.  165; 
4  M.  &  G.  860;  4  Dowl.  &  R.  783;  2  Deac. 
&  C.  534 ;  Rohan  v.  Hanson,  11  Cush.  (Mass.) 
44;  Caldwell  v.  Wentworth,  14  N.  H.  431. 
But  in  the  case  of  some  debts  illegal  by 
statute — namely,  those  contracted  by  sales 
of  spirituous  liquors — an  appropriation  to 
them  has  been  adjudged  good ;  2  Ad.  &  E. 
41;  Treadwell  v.  Moore,  34  Me.  112.  And 
the  debtor  may  always  elect  to  have  his 
payment  applied  to  an  illegal  debt. 

If  some  of  the  debts  are  barred  by  the 


APPROPRIATION  OF  PAYMENTS      221      APPROPRIATION  OF  PAYMENTS 


statute  of  limitations  the  creditor  cannot  ; 
first  apply  the  unappropriated  funds  to  i 
them,  and  thus  revive  them ;  2  Cr.  M.  &  R.  I 
723;  2  C.  B.  476;  Washington  v.  State,  13 
Ark.  754;  Pond  v.  Williams,  1  Gray  (Mass.)  | 
630.  Still,  a  debtor  may  waive  the  bar  of 
the  statute,  just  as  he  may  apply  his  funds 
to  an  illegal  debt;  and  the  creditor  may  in- 
sist, in  the  silence  of  the  debtor,  unless  other 
facts  controvert  it,  that  the  money  was  paid 
on  the  barred  debts;  5  M.  &  W.  300;  Liver- 
more  v.  Rand,  26  N.  H.  85 ;  Watt  v.  Hoch, 
25  Pa.  411.  See  Beck  v.  Haas,  31  Mo.  App. 
180.  Proof  of  such  intent  on  the  debtor's 
part  may  be  deduced  from  a  mutual  ad- 
justment of  accounts  before  the  money  is 
sent,  or  from  his  paying  interest  on  the 
barred  debt.  But,  in  general,  the  creditor 
cannot  insist  that  a  part-payment  revives 
the  rest  of  the  debt.  He  can  only  retain 
such  partial  payment  as  has  been  made; 
Pond  v.  Williams,  1  Gray  (Mass.)  630.  It 
has  been  held  that  the  creditor  may  first 
apply  a  general  payment  to  discharging  any 
one  of  several  accounts  all  barred,  and  by  so 
doing  he  will  revive  the  balance  of  that  par- 
ticular account,  but  he  is  not  allowed  to 
distribute  the  funds  upon  all  the  barred 
notes,  so  as  to  revive  all ;  Ayer  v.  Hawkins, 
19  Vt.  26. 

Wherever  the  payment  is  not  voluntary, 
the  creditor  has  not  the  option  in  appropria- 
tion, but  he  must  apply  the  funds  received 
ratably  to  all  the  notes  or  accounts.  This 
is  the  rule  wherever  proceeds  are  obtained 
by  judicial  proceedings.  So,  in  cases  of  as- 
signment by  an  insolvent  debtor,  the  share 
received  by  a  creditor,  a  party  to  the  assign 
ment,  must  be  applied  pro  rata  to  all  his 
claims,  and  not  to  such  debts  only  as  are 
not  otherwise  secured ;  Blackstone  Bank  v. 
Hill,  10  Pick.  (Mass.)  129;  1  M.  &  G.  54 ; 
Stamps  v.  Brown,  Walk.  (Miss.)  526;  Mer- 
rimack County  Bank  v.  Brown,  12  N.  H. 
320;  Bank  of  Portland  v.  Brown,  22  Me. 
295;  Cowperthwaite  v.  Sheffield,  1  Sandf. 
(N.  Y.)  416. 

A  creditor  having  several  demands  may 
apply  the  payments  to  a  debt  not  secured 
by  sureties,  where  other  rules  do  not  pro- 
hibit it;  Upham  v.  Lefavour,  11  Mete. 
(Mass.)  185.  Where  appropriations  are  made 
by  a  receipt,  prima  facie  the  creditor  has 
made  them,  because  the  language  of  the  re- 
ceipt is  his ;  U.  S.  v.  Bradbury,  Dav.  Dist. 
Ct  146,  Fed.  Cas.  No.  14,635. 

It  is  sufficiently  evident  from  the  fore- 
going rules  that  the  principle  of  the  civil 
law  which  required  the  creditor  to  act  for 
his  debtor's  interest  in  appropriation  more 
than  for  his  own,  is  not  a  part  of  the  com- 
mon law ;  Logan  v.  Mason,  6  W.  &  S.  (Pa.)  9. 
The  nearest  approach  to  the  civil-law  rule 
is  the  doctrine  that  when  the  right  of  ap- 
propriation falls  to  the  creditor  he  must 
make  such  an  application  as  his  debtor  could 


not  reasonably  have  objected  to;  Bancroft 
v.  Dumas,  21  Vt.  456;  Parcbman  v.  Mc- 
Kinney,  12  Smedes  &  M.  (Miss.)  631.  See 
Imittation  of  Payments. 

The  law  will  apply  part-payments  in  ac- 
cordance with  the  justice  and  equity  of 
the  case;  U.  S.  v.  Kirkpatrick,  9  Wheat. 
(U.  S.)  720,  6  L.  Ed.  199;  Harker  v.  Coma.!. 
12  S.  &  R.  (Pa.)  301,  14  Am.  Dec.  691  ; 
v.  II. .Hand,  6  Cra.  (U.  S.)  28,  3  L.  E<1.  136; 
Sheehy  v.  Mandeville,  6  Cra.  (T\  S.)  li.",:;.  264, 
3  L.  Ed.  215;  U.  S.  v.  Ward  well.  5  Mas. 
82,  Fed.  Cas.  No.  16,640;  Campbell  v.  Ved- 
der,  1  Abb.  App.  Dec.  (N.  Y.)  295;  IMcker- 
ing  v.  Day,  2  Del.  Ch.  333;  Leef  v.  Good- 
win, Taney   460,  Fed.  Cas.  No.  s.207. 

Unappropriated  funds  are  always  applied 
to  a  debt  due  at  the  time  of  payment,  rather 
than  to  one  not  then  due;  2  Esp.  666;  Bak- 
er v.  Stackpoole,  9  Cow.  (N.  Y.)  420,  18  Am. 
Dec.  50S ;  Harrison  &  Robinson  v.  Johns- 
ton, 27  Ala.  445;  Seymour  v.  Sexton.  10 
Watts  (Pa.)  255;  Stone  v.  Talbot,  4  Wise. 
442;  Kline  v.  Ragland,  47  Ark.  Ill,  14  S. 
W.  474.  Rut  an  express  agreement  with  the 
debtor  will  make  good  an  appropriation  to 
debts  not  due;  Shaw  v.  Pratt,  22  Pick. 
(Mass.)  305.  The  creditor  should  refuse  a 
payment  on  an  account  not  yet  due,  if  be  be 
unwilling  to  receive  it;  but  if  he  do  receive 
it  he  must  apply  it  as  the  debtor  directs; 
Wetherell  v.  Joy,  40  Me.  325;  Levystein  & 
Simon  v.  Whitman,  59  Ala.  345.  A  payment 
is  applied  to  a  certain  rather  than  to  a  con- 
tingent debt,  and,  therefore,  to  a  debt  on 
which  the  payer  is  bound  directly,  rather 
than  to  one  which  binds  him  collaterally; 
President,  etc.,  of  Bank  of  Portland  v. 
Brown,  22  Me.  295.  And  where  the  amount 
paid  is  precisely  equal  to  one  of  several 
debts,  a  jury  is  authorized  to  infer  its  in- 
tended application  to  that  debt;  Seymour  & 
Bouck  v.  Van  Slyck,  8  Wend.  (N.  Y.)  403; 
Moody  v.  U.  S.,  1  Woodb.  &  M.  150,  Fed.  Cas. 
No.  1,636.  Where  one  holds  two  notes,  one 
of  which  is  secured,  and  he  receives  further 
security  with  express  agreement  that  he 
may  apply  proceeds  thereof  to  either  note, 
he  may  make  such  application  to  the  unse- 
cured note  notwithstanding  the  objection  of 
second  mortgagee;  Case  v.  Fant,  53  Fed.  41, 
3  C.  C.  A.  418.  Where  a  creditor  is  secured 
by  both  chattel  and  real  estate  mortgagee, 
he  may  apply  proceeds  of  sale  of  chattels 
first  to  the  chattel  mortgage  ami  then  to  pay- 
ment of  debts  otherwise  secured;  Schloss  v. 
Solomon,  97  Mich.  526,  56  N.  W.  753. 

The  law,  as  a  general  rule,  will  apply  a 
payment  in  the  way  most  beneficial  to  the 
debtor  at  the  time  of  payment ;  Neal  v.  Al- 
lison, 50  Miss.  175 ;  Moore  v.  Kill.  78  Pa.  96. 
This  rule  seems  to  be  similar  to  the  civil- 
law  doctrine.  Thus,  e.  g.,  courts  will  apply 
money  to  a  mortgage  debt  rather  than  to  a 
simple  contract  debt ;  see  12  Mod.  559  ;  Dor- 
sey  v.  Gassaway,  2  Harr.  &  J.  (Md.)  402,  3 


APPROPRIATION  OP  PAYMENTS     222      APPROPRIATION  OF  PAYMENTS 


Am.  Dec.  557 ;  Bussey  v.  Gant's  Adin'r,  10 
Humphr.  (Tenn.)  238;  Robinson  v.  Doolittle, 
12  Vt.  246 ;  Pattison  v.  Hull,  9  Cow.  (N.  Y.) 
747,  765;  McTavish  v.  Carroll,  1  Md.  Ch. 
Dec.  160;  Hamer  v.  Kirkwood,  25  Miss.  95. 
In  the  absence  of  specific  appropriation,  the 
law  will  apply  payments  to  unsecured  in- 
debtedness in  preference  to  the  secured ; 
Gardner  v.  Leek,  52  Minn.  522,  54  N.  W.  746. 
Yet,  on  the  other  hand,  in  the  pursuit  of 
equity,  courts  will  sometimes  assist  the  cred- 
itor. Hence,  of  two  sets  of  debts,  courts  al- 
low the  creditor  to  apply  unappropriated 
funds  to  the  debts  least  strongly  secured; 
Planters'  Bank  v.  Stockman,  1  Freem.  Ch. 
(Miss.)  502;    Baine  v.  Williams,  10   Smedes 

6  M.  (Miss.)  113;  Stamford  Bank  v.  Bene- 
dict, 15  Conn.  438 ;  Ramsour  v.  Thomas,  32 
N.  C.  165 ;  Jones  v.  Kilgore,  2  Rich.  Eq.  (S. 
C.)  63 ;  Emery  v.  Tichout,  13  Vt.  15 ;  Field 
v.  Holland,  6  Cr.  (U.  S.)  S,  3  L.  Ed.  136; 
Smith  v.  Loyd,  11  Leigh  (Va.)  512,  37  Am. 
Dec.  621 ;  Byer  v.  Fowler,  14  Ark.  86 ;  Har- 
groves  v.  Cooke,  15  Ga.  321 ;  Pattison  v. 
Hull,  9  Cow.  (N.  Y.)  747,  765;  The  D.  B. 
Steelman,  48  Fed.  5S0. 

Interest.  Payments  made  on  account  are 
first  to  be  applied  to  the  interest  which  has 
accrued  thereon.  And  if  the  payment  ex- 
ceed the  amount  of  interest,  the  residue 
goes  to  extinguish  the  principal ;  Peebles  v. 
Gee,  12  N.  C.  341 ;  Jencks  v.  Alexander,  11 
Paige,  Ch.  (N.  Y.)  619;  Bond  v.  Jones,  8 
Smedes  &  M.  (Miss.)  368;  Hearn  v.  Cut- 
berth,  10  Tex.  216;  Righter  v.  Stall,  3  Sandf. 
Ch.  (N.  Y.)  60S;  Miami  Exporting  Co.  v. 
Bank,  5  Ohio  260 ;  Hart  v.  Dorman,  2  Fla. 
445,  50  Am.  Dec.  285;  Spires  v.  Hamot,  8 
W.  &  S.  (Pa.)  17 ;  Mills  v.  Saunders,  4  Neb. 
190;  Jacobs  v.  Ballenger,  130  Ind.  231,  29 
N.  E.  782,  15  L.  R.  A.  169.  Funds  must  be 
applied  by  the  creditor  to  a  judgment  bear- 
ing interest,  and  not  to  an  unliquidated 
account ;  Scott  v.  Fisher,  4  T.  B.  Monr. 
(Ky.)  3S9 ;  nor  to  usurious  interest ;  Dun- 
can v.  Helm,  22  La.  Ann.  418;  Bank  of  Ca- 
diz v.  Slemmons,  34  Ohio  St.  142,  32  Am. 
Rep.  364. 

Priority.  When  no  other  rules  of  ap- 
propriation intervene,  the  law  applies  part- 
payments  to  debts  in  the  order  of  time,  dis- 
charging the  oldest  first ;  Whetmore  v.  Mur- 
dock,  3  Woodb.  &  M.  390,  Fed.  Cas.  No.  17,- 
510;  Huger's  Ex'rs  v.  Bocquet,  1  Bay  (S.  C.) 
497 ;  Thurlow  v.  Gilmore,  40  Me.  378  ;  Dows 
v.  Morewood,  10  Barb.  (N.  Y.)  183;  Allstan's 
Adm'r  v.  Contee's  Ex'r,  4  Harr.  &  J.  (Md.) 
351 ;     Ross's    Ex'r  v.    McLauchlan's    Adm'r, 

7  Gratt.  (Va.)  86;  Shedd  v.  Wilson,  27  Vt. 
478;  Berghaus  v.  Alter,  9  Watts  (Pa.)  386; 
Harrison  v.  Johnston,  27  Ala.  445;  Town  of 
St.  Albans  v.  Failey,  46  Vt  448;  Allen  v. 
Brown,  39  la.  330;  Worthley  v.  Emerson, 
116  Mass.  374 ;  The  Barges  2  and  4,  58  Fed. 
425.  Where  the  payment  is  upon  an  ac- 
count, the   law  will  apply  it  to   the  oldest 


items;  The  Tom  Lysle,  48  Fed.  690.  So 
strong  is  this  priority  rule  that  it  has  been 
said  that  equity  will  apply  payments  to  the 
earliest  items,  even  where  the  creditor  has 
security  for  these  items  and  none  for  later 
ones;  Truscott  v.  King,  6  N.  Y.  147.  But 
this  is  opposed  to  the  prevailing  rule. 

Sureties.  The  general  rule  is  that  neither 
debtor  nor  creditor  can  so  apply  a  payment 
as  to  affect  the  liabilities  of  sureties,  with- 
out their  consent;  Merrimack  County  Bank 
v.  Brown,  12  N.  H.  320;  Myers  v.  U.  S.,  1 
McLean  493,  Fed.  Cas.  No.  9,996;  Brander 
v.  Phillips,  16  Pet.  (U.  S.)  121,  10  L.  Ed.  909 ; 
Postmaster  General  v.  Norvell,  Gilp.  106, 
Fed.  Cas.  No.  11,310.  Where  a  principal 
makes  general  payments,  the  law  presumes 
them,  prima  facie,  to  be  made  upon  debts 
guaranteed  by  a  surety,  rather  than  upon 
others ;  though  circumstances  and  intent 
will  control  this  rule  of  surety,  as  they  do 
other  rules  of  appropriation ;  1  C.  &  P.  600 ; 
8  Ad.  &  E.  855 ;  10  J.  B.  Moore  362;  Mitch- 
ell v.  Dall,  4  Gill  &  J.  (Md.)  361;  Donally 
v.  Wilson,  5  Leigh  (Va.)  329. 

Continuous  accounts.  In  these,  payments 
are  applied  to  the  earliest  items  of  account, 
unless  a  different  intent  can  be  inferred;  4 
B.  &  Ad.  766;  4  Q.  B.  792;  U.  S.  v.  Kirk- 
pa  trick,  9  Wheat.  (U.  S.)  720,  6  L.  Ed.  199; 
Gass  v.  Stinson,  3  Sumn.  98,  Fed.  Cas.  No. 
5,262;  Miller  v.  Miller,  23  Me.  24,  39  Am. 
Dec.  597;  Morgan  v.  Tarbell,  28  Vt.  498; 
Dulles  v.  De  Forest,  19  Conn.  191 ;  Harri- 
son v.  Johnston,  27  Ala.  445 ;  Home  v.  Bank, 
32  Ga.  1 ;  Shuford  v.  Chinski  (Tex.)  26  S.  W. 
141 ;  Winnebago  Paper  Mills  v.  Travis,  56 
Minn.  480,  58  N.  W.  36.  Where  one  is  in- 
debted on  two  different  accounts  and  money 
is  paid  without  directions,  the  creditor  may 
apply  it  to  the  later  account ;  Henry  Bill 
Pub.  Co.  v.  Utley,  155  Mass.  366,  29  N.  E. 
635;  Perot  v.  Cooper,  17  Colo.  80N  28  Pac. 
391,  31  Am.  St.  Rep.  258;  or  he  may  apply 
half  the  amount  paid  on  each  of  two  debts, 
where  neither  is  barred  by  the  statute  of 
limitations;  Beck  v.  Haas,  111  Mo.  264,  20 
S.  W.  19,  33  Am.  St.  Rep.  516. 

Partners.  Where  a  creditor  of  the  old 
firm  continues  his  account  with  the  new 
firm,  payments  by  the  latter  will  be  ap- 
plied to  the  old  debt,  prima  facie,  the  pre- 
ceding rule  of  continuous  accounts  guiding 
the  appropriations.  As  above,  however,  a 
different  intent,  clearly  proved,  will  pre- 
vail ;  5  B.  &  Ad.  925 ;  2  B.  &  Aid.  39 ;  Lo- 
gan v.  Mason,  6  W.  &  S.  (Pa.)  9.  When  a 
creditor  of  the  firm  is  also  the  creditor  of 
one  partner,  a  payment  by  the  latter  of 
partnership  funds  must  be  applied  to  the 
partnership  debts.  Yet  circumstances  may 
allow  a  different  application ;  1  Mood.  & 
M.  40;  Fairchild  v.  Holly,  10  Conn.  175; 
McKee  v.  Stroup,  1  Rice  (S.  C.)  291;  Sneed 
v.  Wiester,  2  A.  K.  Marsh.  (Ky.)  277;  Cod- 
man   v.   Armstrong,  28  Me.  91;    Johnson  v. 


APPROPRIATION  OF  PAYMENTS      223      APPROPRIATION  OF  PAYMENTS 


Boone's  Adm'r,  2  Harr.  (Del.)  172.  See  Too- 
tle v.  Jenkins,  82  Tex.  29,  17  S.  W.  519. 
And  so,  unappropriated  payments  made  by  a 
party  indebted  severally  and  also  jointly 
with  another  to  the  same  creditor,  for  items 
of  book-charges,  are  to  be  applied  upon  the 
several  debts;  Livermore  v.  Claridge,  33  Me. 
428. 

The  rules  of  appropriation,  it  has  now 
been  seen,  apply  equally  well  whether  the 
debts  are  of  the  same  or  of  different  orders, 
and  though  some  are  specialties  while  oth- 
ers are  simple  contracts;  Town  of  Alex- 
andria v.  Tatten,  4  Cra.  (U.  S.)  317,  2  L.  Ed. 
633 ;  Bennett  v.  Woolfolk,  15  Ga.  221 ;  Pen- 
nypacker  v.  Umberger,  22  Pa.  492 ;  Hamil- 
ton v.  Benbury,  3  N.  C.  3S5. 

As  to  the  time  during  which  the  applica- 
tion must  be  made  in  order  to  be  valid,  there 
is  much  discrepancy  among  the  authorities, 
but  perhaps  a  correct  rule  is  that  any  time 
will  be  good  as  between  debtor  and  creditor, 
but  a  reasonable  time  only  when  third  par- 
ties are  affected ;  G  Taunt.  597 ;  Combs  v. 
Little,  4  N.  J.  Eq.  314,  40  Am.  Dec.  207; 
Starrett  v.  Barber,  20  Me.  457;  Heilbron  v. 
Bissell,  Bail.  Eq.  (S.  C.)  430;  Reynolds  v. 
McFarlane,  1  Overt.  (Tenn.)  488;  Moss  v. 
Adams,  39  N.  C.  42;  Robinson  v.  Doolittle, 
12  Vt  249 ;    Fairchild  v.  Holly,  10  Conn.  184. 

When  once  made,  the  appropriation  can- 
not be  changed  but  by  consent;  and  render- 
ing an  account,  or  bringing  suit  and  declar- 
ing in  a  particular  way.  is  evidence  of  an 
appropriation ;  Hill  v.  Southerland's  Ex'rs, 
1  Wash.  (Va.)  128;  Hopkins  v.  Conrad,  2 
Rawle  (Pa.)  316;  Bank  of  North  America 
v.  Meredith,  2  Wash.  C.  C.  47,  Fed.  Cas.  No. 
893;  Jackson  v.  Bailey,  12  111.  159 ;  Codman 
v.  Armstrong,  28  Me.  91 ;  Pearce  v.  Walker, 
103  Ala.  250,  15  South.  568.  If  the  debtor 
receives  without  objection  an  account  ren- 
dered, he  cannot  afterward  question  the  im- 
putation ;  Flower  v.  O'Bannon,  43  La.  Ann. 
1042,  10  South.  376 ;  Sawyer  v.  Harrison,  43 
Minn.  298,  45  N.  W.  434. 

Of  Government.  No  money  can  be  drawn 
from  the  treasury  of  the  United  States  but 
in  consequence  of  appropriations  made  by 
law ;  Const,  art.  1,  s.  9.  Under  this  clause 
it  is  necessary  for  congress  to  appropriate 
money  for  the  support  of  the  federal  gov- 
ernment ;  this  is  done  annually  by  acts  of 
appropriation,  some  of  which  are  for  the 
general  purposes  of  government,  and  others 
special  and  private  in  their  nature.  These 
general  appropriation  bills,  as  they  are  com- 
monly termed,  extend  to  the  30th  of  June  in 
the  following  year,  and  usually  originate  in 
the  house  of  representatives,  being  prepared 
by  the  committee  of  ways  and  means ;  but 
they  are  distinct  from  the  bills  for  raising 
revenue,  which  the  constitution  declares 
shall  originate  in  the  house  of  representa- 
tives. A  rule  of  the  house  gives  appropria- 
tion bills  precedence  over  all  other  business, 
and  requires  them  to  be   first  discussed  in 


committee  of  the  whole.  Where  money  once 
appropriated  remains  unexpended  for  more 
than  two  years  after  the  expiration  of  the 
fiscal  year  in  which  the  act  shall  have  been 
passed,  such  appropriations  are  deemed  to 
have  ceased,  and  the  moneys  so  unexpend- 
ed are  immediately  thereafter  carried  to  the 

'surplus  fund,"  and  it  is  not  lawful  there- 
after to  pay  them  out  for  any  purptj.se  with- 
out further  and  specific  appropriations  by 
law.  Certain  appropriations,  however,  are 
excepted  from  the  operation  of  this  law, 
viz.:  moneys  appropriated  for  payment  of 
the  interest  on  the  funded  debt,  or  the  pay- 
ment of  interest  and  reimbursement  accord- 
ing to  contract  of  any  loan  or  loans  made 
on  account  of  the  United  States;  as  like- 
wise moneys  appropriated  for  a  pni 
in  respect  to  which  a  longer  duration  is 
specially  assigned  by  law.  No  expenditure 
is  allowed  in  any  department  in  any  year  in 
excess  of  the  appropriation  for  that  year; 
R.   S.  §§  36G0-3092.   7  O.   A.   G.   1. 

The  term  "appropriation"  was  also  used  in 
13  Stat  at  L.  381,  to  include  all  taking  and 
use  of  property  by  the  army  and  navy  in  the 
course  of  the  war  not  authorized  by  contraet 
with  the  government;  Filor  v.  U.  S.,  9  Wall. 

(U.   S.)   45,  19  L.  Ed.  549;  U.  S.  v.  It 

13  Wall.  (U.  S.)  <;•_>:'..  20  L.  Ed.  474;  Waters 

v.  U.  S.,  4  Ct.  CI.  389. 

It  is  also  used  in  reference  to  taking  prop- 
erty under  eminent  domain  (q.  v.)  and  par- 
ticularly to  taking  water  in  connection  with 
irrigation   (q.  v.). 

APPROVE.  To  increase  the  profits  upon 
a  thing. 

Used  of  common  or  waste  lands  which  were  en- 
closed and  devoted  to  husbandry;  3  Kent  406  ;  Old 
Nat.  Brev.  79. 

While  confessing  crime  one's  self,  to  ac- 
cuse another  of  the  same  crime. 

It  Is  so  called  because  the  accuser  must  prove 
what  he  asserts;  Staundf.  PI.  Cr.  142;  Crompton, 
Jus.   Peace  250. 

To  vouch.     To  appropriate.     To  improve. 
Kelham. 
To  commend;  be  satisfied  with. 

APPROVED  ENDORSED  NOTES.  Notes 
endorsed  by  another  person  than  the  maker, 
for  additional  security,  the  endorser  being 
satisfactory  to  the  payee. 

Public  sales  are  sometimes  made  on  approved 
endorsed  notes.  The  meaning  of  the  term  is  that 
the  purchaser  shall  give  his  promissory  note  for 
the  amount  of  his  purchases,  endorsed  by  another, 
which,  if  approved  of  by  the  seller,  shall  be  receiv- 
ed in  payment.  If  the  party  approve  of  the  notes, 
he  consents  to  ratify  the  sale;  Mills  v.  Hunt,  20 
Wend.    (N.   Y.)    431. 

APPROVER.  One  confessing  himself 
guilty  of  felony,  and  accusing  others  of  the 
same  crime  to  save  himself.  Crompton,  lust. 
250;  Co.  3d  Inst.  129;  Myers  v.  People,  26 
111.  173 ;  Gray  v.  Teople.  20  id.  344 ;  1  Cowp- 
er  331.     See  ANTrrnETABius. 

Such  an  one  was  obliged  to  maintain  the  truth 
of  his  charge,  by  the  old  law;    Cowell.    If  he  failed 


APPROVER 


224 


APPURTENANCES 


to  convict  those  he  accused  he  was  at  once  hung. 
Lea,  Force  &  Superstition  243.  It  is  said  that  they 
usually  failed.  1  Pike,  Hist,  of  Cr.  286.  The  ap- 
provement must  have  taken  place  before  plea  plead- 
ed;   4    Bla.    Com.   330. 

Certain  men  sent  into  the  several  counties 
to  increase  the  farms  (rents)  of  hundreds 
and  icapentakes,  which  formerly  were  let  at 
a  certain  value  to  the  sheriffs.     Cowell. 

Sheriffs  are  called  the  king's  approvers. 
Termes  de  la  Ley. 

Approvers  in  the  Marches  were  those  who 
had  license  to  sell  and  purchase  beasts  there. 

APPURTENANCES.  Things  belonging  to 
another  thing  as  principal,  and  which  pass 
as  incident  to  the  principal  thing.  Harris 
v.  Elliott,  10  Pet.  (U.  S.)  25,  9  L.  Ed.  333; 
Blaine's  Lessee  v.  Chambers,  1  S.  &  R.  (Pa.) 
169;  Cro.  Jac.  121,  526;  1  P.  Wms.  603;  2 
Coke  32 ;  Co.  Litt.  5  b,  56  a,  b;  2  Saund.  401,  n. 
2 ;  1  B.  &  P.  371 ;  Grubb  v.  Grubb,  74  Pa.  25. 
See  13  Am.  Dec.  657,  note. 

The  word  has  a  technical  signification, 
and,  when  strictly  considered,  is  employed 
in  leases  for  the  purpose  of  including  any 
easements  or  servitudes  used  or  enjoyed 
with  the  demised  premises.  When  thus  used, 
to  constitute  an  appurtenance  there  must 
exist  a  propriety  of  relation  between  the 
principal  or  dominant  subject  and  the  ac- 
cessory or  adjunct,  which  is  to  be  ascertain- 
ed by  considering  whether  they  so  agree 
in  nature  or  quality  as  to  be  capable  of  un- 
ion without  incongruity ;  Riddle  v.  Little- 
field,  53  N.  H.  50S,  16  Am.  Rep.  388;  Hum- 
phreys v.  McKissock,  140  U.  S,  304,  11  Sup. 
Ct.  779,  35  L.  Ed.  473. 

Thus,  if  a  house  and  land  be  conveyed, 
everything  passes  which  is  necessary  to  the 
full  enjoyment  thereof  and  which  is  in  use 
as  incident  or  appurtenant  thereto ;  U.  S.  v. 
Appleton,  1  Sumn.  492,  Fed.  Cas.  No.  14,403. 
Under  this  term  are  included  the  curtilage ; 
2  Bla.  Com.  17 ;  a  right  of  way ;  4  Ad.  &  E. 
749;  water-courses  and  secondary  easements, 
under  some  circumstances ;  Angell,  Wat  C. 
(7th  ed.)  §  153a;  a  turbary;  3  Salk.  40; 
and  generally,  anything  necessary  to  the  en- 
joyment of  a  thing ;  4  Kent  468,  n. ;  Simmons 
v.  Cloonan,  81  N.  Y.  557;  but  it  is  the 
general  rule  that  land  cannot  pass  as  appur- 
tenant to  land;  Harris  v.  Elliott,  10  Pet.  (U. 
S.)  25,  9  L.  Ed.  333;  Helme  v.  Guy,  6  N.  C. 
341;  Woodhull  v.  Rosenthal,  61  N.  Y.  390; 
but  it  may  pass,  in  order  to  give  effect  to 
the  intent  of  a  will;  Otis  v.  Smith,  9  Pick. 
(Mass.)  293;  and  in  Pennsylvania  where 
first  purchasers  of  5000  acres  from  William 
Penn,  the  Proprietary,  obtained  city  lots  as 
an  incident  to  their  purchase,  it  was  held 
that  the  lots  passed  as  appurtenant  to  a 
grant  of  5000  acres;  Hill's  Lessee  v.  West, 
4  Yeates  (Pa.)  142;  also  flats  pass  as  ap- 
purtenant to  the  fast  land  on  a  river  front ; 
Risdon  v.  City  of  Philadelphia,  18  W.  N.  C. 
(Pa.)  73;  and  the  land  covered  by  the  wa- 
ter used  for  water  power  will  pass  as  ap- 


purtenant to  a  saw-mill ;  Grubb  v.  Grubb,  74 
Pa.  25.  See  also  Scheetz  v.  Fitzwater,  5  Pa. 
126;  Ott  v.  Kreiter,  110  Pa.  370,  1  Atl.  724. 

The  mere  use  of  the  term  "appurtenances," 
without  more,  will  not  pass  a  right  of  way 
established  over  one  portion  of  land  merely 
for  convenience  of  the  owner,  it  not  being  a 
way  of  necessity ;  Parsons  v.  Johnson,  68  N. 
Y.  62,  23  Am.  Rep.  149. 

An  elevator  is  not  a  common  appurtenance 
to  the  railroads  of  the  several  companies 
having  the  stock  of  the  elevator  company ; 
a  certificate  of  stock  in  an  independent  cor- 
poration cannot  be  an- appurtenance  to  a 
railroad ;  Humphreys  v.  McKissock,  140  U. 
S.  304,  11  Sup.  Ct.  779,  35  L.  Ed.  473,  where, 
under  a  mortgage  made  by  a  railroad  com- 
pany, the  term  "appurtenances"  was  held  to 
mean  only  such  property  as  is  indispensable 
to  the  use  and  enjoyment  of  the  franchises 
of  the  company. 

If  a  house  is  blown  down,  a  new  one 
erected  there  shall  have  the  old  appurte- 
nances; 4  Coke  86.  The  word  appurtenanc- 
es in  a  deed  will  not  usually  pass  any  cor- 
poreal real  property,  but  only  incorporeal 
easements,  or  rights  and'  privileges ;  Co.  Litt. 
121 ;  8  B.  &  C.  150 ;  2  Washb.  R.  P.  317,  327 ; 
3  id.  418.     See  Appendant. 

Appurtenances  of  a  ship  include  whatever 
is  on  board  a  ship  for  the  objects  of  the  voy- 
age and  adventure  in  which  she  is  engaged, 
belonging  to  her  owner.  Ballast  was  held 
no  appurtenance;  1  Leon.  46.  Boats  and  ca- 
ble are  such;  Briggs  v.  Strange,  17  Mass. 
405;  also,  a  rudder  and  cordage;  5  B.  &  Aid. 
942;  1  Dods.  Adm.  278;  fishing-stores;  1 
Hagg.  Adm.  109 ;  chronometers ;  6  Jur.  910 ; 
see  Richardson  v.  Clark,  15  Me.  421.  For  a 
full  discussion,  see  1  Pars.  Marit.  Law  71. 
See  In  re  Bailey,  2  Sawy.  201,  Fed.  Cas.  No. 
723. 

APPURTENANT.  Belonging  to;  pertain- 
ing to. 

The  thing  appurtenant  must  be  of  an  in- 
ferior nature  to  the  thing  to  which  it  is  ap- 
purtenant; 2  Bla.  Com.  19;  U.  S.  v.  Harris, 
1  Sumn.  21,  Fed.  Cas.  No.  15,315;  Williams 
v.  Baker,  41  Md.  523.  A  right  of  common 
may  be  appurtenant,  as  when  it  is  annexed 
to  lands  in  other  lordships,  or  is  of  beasts 
not  generally  commonable ;  2  Bla.  Com.  33. 
Such  can  be  claimed  only  by  immemorial 
usage  and  prescription.     See  Appurtenances. 

APUD  ACTA  (Lat.).  Among  the  record- 
ed acts.  This  was  one  of  the  verbal  appeals 
(so  called  by  the  French  commentators),  and 
was  obtained  by  simply  saying,  appello. 

AQUA  (Lat).  Water.  It  is  a  rule  that 
water  belongs  to  the  land  which  it  covers 
when  it  is  stationary.  Aqua  ccdit  solo  (wa- 
ter follows  the  soil)  ;  2  Bla.  Com.  18.  But 
the  owner  of  running  water  cannot  obstruct 
the  flow  to  the  injury  of  an  inheritance  be- 
low him.  Aqua  currit  et  currere  debet  (wa- 
ter runs,  and  ought  to  run);  3  Kent  439; 


AQUA 


225 


ARBITRAMENT  AND  AWARD 


Kauffman  v.  Griesemer,  26  Pa.  413,  67  Am. 
Dec.  437 ;  2  Washb.  R.  P.  340.  See  Riparian 
Proprietobs. 

AQU/E  DUCTUS.  In  Civil  Law.  A  servi- 
tude which  consists  in  the  right  to  carry 
water  by  means  of  conduits  over  or  through 
the  estate  of  another.  Dig.  8.  3.  1 ;  Inst  2. 
3;  Lalaure,  Des  Serv.  c.  5,  p.  23. 

AQU/E  HAUSTUS.  In  Civil  Law.  A  serv- 
itude which  consists  in  the  right  to  draw 
water  from  the  fountain,  pool,  or  spring  of 
another.    Inst  2.  3.  2;  Dig.  8.  3.  1.  1. 

AQU/E  IMMITTEND/E.  In  Civil  Law.  A 
servitude  which  frequently  occurs  among 
neighbors. 

It  was  the  right  which  the  owner  of  a 
house,  built  in  such  a  manner  as  to  be  sur- 
rounded with  other  buildings,  so  that  it  has 
no  outlet  for  its  waters,  had  to  cast  water 
out  of  his  windows  on  his  neighbor's  roof, 
court,  or  soil.  Lalaure,  Des  Serv.  23.  It  is 
recognized  in  the  common  law  as  an  ease- 
ment of  drip ;  Wadsworth  v.  Hydraulic 
Ass'n,  15  Barb.  (N.  Y.)  95;  Gale  &  Whatley, 
Easements.     See  Easements  ;  Drip. 

AQUAGIUM  (Lat).  A  water-course. 
Cowell.  Canals  or  ditches  through  marshes. 
Spelman.  A  signal  placed  in  the  aquagium 
to  indicate  the  height  of  water  therein. 
Spelman. 

AQUATIC  RIGHTS.  Rights  which  indi- 
viduals have  in  water. 

ARALIA.  Land  fit  for  the  plough.  De- 
noting the  character  of  land,  rather  than  its 
condition.  Spelman.  Kindred  in  meaning 
arare,  to  plough;  arator,  a  ploughman;  ara- 
trum  tcrrce,  as  much  land  as  could  be  culti- 
vated by  a  single  arator;  araturia,  land  fit 
for  cultivation. 

ARBITER.  A  person  bound  to  decide  ac- 
cording to  the  rules  of  law  and  equity,  as 
distinguished  from  an  arbitrator,  who  may 
proceed  wholly  at  his  own  discretion,  so  that 
it  be  according  to  the  judgment  of  a  sound 
man.     Cowell. 

This  distinction  between  arbiters  and  arbitrators 
is  not  observed  in  modern  law.  Russell,  Arbitrator 
112.     See  Arbitrator. 

One  appointed  by  the  Roman  praetor  to  de- 
cide by  the  equity  of  the  case,  as  distinguish- 
ed from  the  judex,  who  followed  the  law. 
Calvinus,  Lex. 

One  chosen  by  the  parties  to  decide  the 
dispute;   an  arbitrator.     Bell,  Diet. 

ARBITRAGE.  Transactions  of  bankers 
and  mercantile  houses  by  which  stocks  or 
bills  are  bought  in  one  market  and  sold  in 
another  for  the  sake  of  the  profit  arising 
from  a  difference  in  price  in  the  two  mar- 
kets. 

ARBITRAMENT    AND    AWARD.     A    plea 
to    an   action   brought   for   the    same   cause 
which  had  been  submitted  to  arbitration  and 
Bouv.— 15 


on  which  an  award  had  been  made.     Wat- 
son, Arb.  256. 

ARBITRARY  PUNISHMENT.  That  pun- 
ishment which  is  left  to  the  decision  of  the 
judge,  in  distinction  from  those  defined  by 
statute.     See  Discretion. 

ARBITRATION  AND  AWARD.  Arbitra- 
tion is  the  investigation  and  determination 
of  a  matter  or  matters  of  difference  between 
contending  parties,  by  one  or  more  unofficial 
persons,  chosen  by  the  parties,  and  called 
arbitrators,  or  referees. 

1.  Character  of  the  Proceeding.  Arbitra- 
tion is  the  hearing  and  determination  of  a 
cause  between  the  parties  in  controversy  by 
a  tribunal  selected  by  them.  Duren  v.  Get- 
chell,  55  Me.  241.  At  common  law  it  is  en- 
tirely voluntary,  and  depends  upon  the  agree- 
ment of  the  parties,  to  waive  the  right  of  tri- 
al in  court  by  a  jury. 

"An  arbitration  is  a  domestic  tribunal 
created  by  the  will  and  consent  of  the  par- 
ties litigant,  and  resorted  to  to  avoid  ex- 
pense, delay  and  ill  feeling  consequent  upon 
litigating  in  courts  of  justice."  Reily  v.  Rus- 
sell, 34  Mo.  524. 

"Arbitration  is  where  the  parties  injuring 
and  injured  submit  all  matters  in  dispute 
concerning  any  personal  chattels  or  personal 
wrong  to  the  judgment  of  two  or  more  arbi- 
trators, who  are  to  decide  the  controversy ; 
and  if  they  do  not  agree  it  is  usual  to  add 
that  another  person  be  called  in  as  umpire 
(imperator  or  tmpar)  to  whose  sole  judg- 
ment it  is  then  referred;  or  frequently  there 
is  only  one  arbitrator  originally  appointed. 
The  decision  in  any  of  these  cases  is  called 
an  award,  and  thereby  the  question  is  as 
fully  determined  and  the  right  transferred 
or  settled  as  it  could  have  been  by  the  agree- 
ment of  the  parties  or  a  judgment  of  a  court 
of  justice."  3  Bla.  Com.  16,  adopted  in  Fargo 
v.  Reighard,  13  Ind.  App.  39,  3!)  X.  E.  888,  41 
N.  E.  74;  Germania  Fire  Ins.  Co.  of  City  of 
New  York  v.  Warner,  13  Ind.  App.  4<;  ;.  41 
N.  E.  969. 

'Arbitration  is  a  substitution  by  consent 
of  the  parties  of  another  tribunal  for  those 
provided  by  the  ordinary  processes  of  law; 
but  that  such  a  substitution  should  be  estab- 
lished, the  consent  of  the  parties  thereto 
should  be  proved  in  the  usual  way."  Boyden 
v.  Lamb.  152  .Mass.  416,  25  X.  E.  609. 

"An  arbitration  at  common  law  was  but  a 
judicial  investigation  out  of  court,"  and  as 
such  it  required  notice  of  hearing  and  ex- 
amination of  the  witnesses  under  oath,  un- 
less expressly  waived.  People  v.  Board  of 
Sup'rs,  15  N.  Y.  Supp.  74S. 

"Arbitration  is  an  arrangement  for  taking 
and  abiding  by  the  judgment  of  selected  per- 
sons in  some  disputed  matter,  instead  of 
carrying  it  to  the  established  tribunals  of 
justice,  and  is  intended  to  avoid  the  formali- 
ties, the  delay,  the  expense  and  vexation  of 
ordinary  litigation.    When  the  submission  is 


ARBITRATION  AND  AWARD 


22G 


ARBITRATION  AND  AWARD 


made  a  rule  of  court,  the  arbitrators  are  not 
officers  of  the  court,  but  are  the  appointees  of 
the  parties,  as  in  cases  where  there  is  no 
rule  of  court."  In  re  Curtis-Castle  Arbitra- 
tion, 64  Conn.  501,  30  Atl.  709,  42  Am.  St 
Rep.  200. 

To  constitute  an  arbitration,  the  matter 
submit  ted  must  be  one  in  dispute  between 
the  parties  and  not  some  matter  which  it 
is  expected  may  arise  between  them  or  a 
matter  of  accounting  or  appraisal.  Toledo  S. 
S.  Co.  v.  Zenith  Transp.  Co.,  184  Fed.  391, 
100  C.  C.  A.  501. 

Compulsory  arbitration  is  when  the  con- 
sent of  one  of  the  parties  is  enforced  by 
statutory  provisions.  Wood  v.  City  of  Seat- 
tle, 23  Wash.  1,  02  Pac.  135,  52  L.  R.  A.  309. 

Voluntary  arbitration  is  by  mutual  and 
free  consent  of  the  parties.  It  usually  takes 
place  in  pursuance  of  an  agreement  (com- 
monly in  writing)  between  the  parties,  term- 
ed a  submission;  the  person  to  whom  the 
reference  is  made  is  an  arbitrator;  and  the 
determination  of  the  arbitrators  is  called  an 
award;  Garr  v.  Gomez,  9  Wend.  (N.  Y.)  049; 
but  a  parol  submission  is  good  at  common 
law;  Cady  v.  Walker,  02  Mich.  157,  28  N.  W. 
805,  4  Am.  St.  Rep.  834. 

A  submission  to  arbitration  made  pending 
an  action  thereon,  operates  as  a  discontinu- 
ance of  the  suit;  Draghicevich  v.  Vulicevich, 
70  Cal.  378,  18  Pac.  400;  and  it  is  a  bar  to 
any  future  action  thereon ;  Baltes  v.  Ma- 
chine Works,  129  Ind.  185,  28  N.  E.  319.  If 
the  submission  is  not  made  under  an  order 
of  court,  the  award  cannot  be  made  a  judg- 
ment of  the  court  unless  it  be  by  consent ; 
Long  v.  Fitzgerald,  97  N.  C.  39,  1  S.  E.  S44. 

At  common  law  it  was  either  in  pais, — 
that  is,  by  simple  agreement  of  the  parties, 
— or  by  the  intervention  of  a  court  of  law 
or  equity.  The  latter  was  called  arbitration 
by  rule  of  court;   3  Bla.  Com.  10. 

Besides  arbitration  at  common  law,  there 
exists  arbitration,  in  England  as  well  as  the 
United  States,  under  various  statutes. 

Most  of  them  are  founded  on  the  9  &  10 
Will.  III.  c.  15,  and  3  &  4  Will.  IV.  ch.  42,  § 
49,  by  which  it  is  allowed  to  refer  a  matter 
in  dispute,  not  then  in  court,  to  arbitrators, 
and  agree  that  the  submission  be  made  a 
rule  of  court.  This  agreement,  being  proved 
on  the  oath  of  one  of  the  witnesses  thereto, 
is  enforced  as  if  it  had  been  made  at  first 
under  a  rule  of  court;  3  Bla.  Com.  18;  Kyd, 
Aw.  22.  Some  of  the  state  statutes,  however, 
provide  for  compulsory  arbitration. 

This  is  somewhat  similar  to  the  arbitra- 
tions of  the  Romans.  There  the  prretor  se- 
lected, from  a  list  of  citizens  made  for  the 
purpose,  one  or  more  persons,  who  were  au- 
thorized to  decide  all  suits  submitted  to 
them,  and  which  had  been  brought  before 
him.  The  authority  which  the  prsetor  gave 
them  conferred  on  them  a  public  character, 
and  their  judgments  were  without  appeal. 
Toullier,  Droit  Civ.  Fr.  liv.  3,  t.  3,  c.  4,  n.  820. 


Although  at  common  law  arbitrators  were 
unofficial  persons  selected  by  the  parties,  it 
is  in  the  power  of  a  state  legislature  to  pro- 
vide for  statutory  arbitrators  to  be  selected 
from  a  class  learned  in  the  law,  and  that,  in 
their  proceedings,  they  shall  be  governed  by 
certain  rules  and  regulations.  Such  a  com- 
mission is  not  an  arbitrary  one  to  which 
litigants  are  forced  to  submit  their  differ- 
ences, but  can  only  act  by  the  express  con- 
sent of  the  parties,  which  gives  validity  and 
vitality  to  the  statute,  and  a  judgment  en- 
tered thereon  is  like  other  consent  judg- 
ments;   Henderson  v.  Beaton,  52  Tex.  29. 

It  is  a  general  rule  that  in  an  arbitration 
as  to  matters  of  "public  concern"  a  majority 
is  sufficient  to  make  an  award;  this  rule  was 
laid  down  by  Eyre,  C.  J.,  in  1  Bos.  &  Pul.  229, 
and  applied  in  Omaha  Water  Co.  v.  Omaha, 
102  Fed.  225,  89  C.  C.  A.  205,  15  Ann.  Cas. 
498,  where  the  appraisal  of  a  water  works, 
preparatory  to  their  being  taken  over  by  a 
city,  was  held  to  be  a  matter  of  "public  con- 
cern," and  the  decision  of  a  majority  bind- 
ing ;  in  Colombia  v.  Cauca  Co.,  190  U.  S.  524, 
23  Sup.  Ct.  704,  47  L.  Ed.  1159,  where  there 
had  been  an  arbitration  between  the  Repub- 
lic of  Colombia  and  a  railroad  company,  and 
after  the  three  arbitrators  had  heard  and 
discussed  the  case,  the  Colombia  representa- 
tive withdrew,  and  there  not  being  time  un- 
der the  treaty  for  proceedings  to  supply  his 
place,  the  remaining  arbitrators  signed  the 
award  and  it  was  held  binding,  among  other 
reasons,  because  it  was  of  "public  concern" ; 
in  People  v.  Nichols,  52  N.  Y.  478,  11  Am. 
Rep.  734,  where  an  appropriation  having 
been  made  (of  $20,000,  or  so  much  thereof 
as  might  be  necessary)  for  the  purchase  of 
relics  of  George  Washington  to  be  paid  only 
on  a  certificate  of  genuineness  and  value  of 
three  named  persons,  it  was  held  that  a  mat- 
ter between  a  state  and  an  individual  is  a 
matter  of  "public  concern"  and  that  a  cer- 
tificate signed  by  two  wras  sufficient,  the 
third  having  refused  to  sign.  The  rule  was 
also  applied  in  Morgan  v.  Ins.  Ass'n,  52  App. 
Div.  01,  64  N.  Y.  Supp.  873. 

2.  Submission.  The  submission  is  an 
agreement,  parol  (oral  or  wrritten)  or  sealed, 
by  which  parties  agree  to  submit  their  differ- 
ences to  the  decision  of  a  referee  or  arbitra- 
tors. It  is  sometimes  termed  a  reference; 
Kyd,  Arb.  11;  3  M.  &  W.  810;  McManus  v. 
McCulloch,  0  Watts  (Pa.)  357;  Stewart  v. 
Cass,  16  Vt.  663,  42  Am.  Dec.  534;  Howard 
v.  Sexton,  4  N.  Y.  157. 

It  is  the  authority  given  by  the  parties  to 
the  arbitrators,  empowering  them  to  inquire 
into  and  determine  the  matters  in  dispute. 

It  may  be  in  puis,  or  by  rule  of  court,  or 
under  the  various  statutes;  Williams  r. 
Wood,  12  N.  C.  82.  ■ 

It  may  be  oral,  but  this  is  inconvenient, 
because  open  to  disputes ;  by  written  agree- 
ment not  under  seal  (in  some  states  the  sub- 
mission must  be  in  writing;    De  Armas  v. 


ARBITRATION  AND  AWARD 


227 


ARBITRATION  AND   AWARD 


City  of  New  Orleans,  5  La.  133  ;  Smith  v. 
Pollock,  2  Cal.  92);  by  Indenture,  with  mu- 
tual covenants  to  abide  by  the  decision  of 
the  arbitrator;  by  deed-poll,  or  by  bond,  each 
party  executing  an  obligation  to  the  other 
conditioned  to  be  void  respectively  upon  the 
performance  of  the  award;  Caldw.  Arb.  16; 
McManus  v.  McCulloch,  6  Watts  (Pa.)  :;.".". 
A  parol  submission  followed  by  a  valid 
award,  though  not  in  writing,  may  be  bind- 
ing and  conclusive  upon  the  parties,  if  the 
arbitrators  act  fairly,  but.  before  a  party  is 
so  bound,  the  agreement  to  arbitrate  must  bo 
duly  established;  Childs  v.  State,  97  Ala.  52, 
12  South.  441. 

An  offer  to  arbitrate  not  accepted  by  the 
other  party  cannot  affect  his  right  to  sue; 
Funsten  v.  Commission  Co.,  67  Mo.  App.  559; 
where  a  submission  was  provided  for  in  a 
lease,  and  by  failure  of  the  parties  to  agree 
upon  arbitrators,  nothing  had  been  done  and 
suit  was  brought,  the  action  could  be  defeat- 
ed by  an  offer  at  the  trial  to  proceed  with 
the  arbitration;  Van  Beurcn  v.  Wotherspoon, 
12  App.  Div.  421,  42  N.  Y.  Supp.  404.  A  stat- 
utory provision  for  arbitration  has  been  held 
not  to  be  exclusive  of  the  common-law  riu'lit 
to  arbitrate;  Burkland  v.  Johnson,  50  Neb. 
858,  70  N.  W.  388.  See  also,  as  to  the  effect 
of  statutory  provisions  upon  common-law  ar- 
bitration, New  York  Lumber  &  Wood  Work- 
ing Co.  v.  Schneider,  119  N.  Y.  475,  24  N.  E. 
4;   Ehrman  v.  Stanfield,  80  Ala.  118. 

When  to  bo  made.  A  submission  may  be 
made  at  any  time  of  causes  not  in  court, 
and  at  common  law,  where  a  cause  was  de- 
pending, submission  might  be  made  by  rule 
of  court  before  the  trial,  or  by  order  of  nisi 
prius  after  it  had  commenced,  which  was 
afterwards  made  a  rule  of  court ;  2  B.  &  Aid. 
395;   Craig  v.  Craig,  9  N.  J.  L.  19S. 

Who  may  make.  Any  one  capable  of  mak- 
ing a  disposition  of  his  property  or  release 
of  his  right,  or  capable  of  suing  or  being 
sued,  or  of  making  a  valid  and  binding  con- 
tract with  regard  to  the  subject,  may,  in 
general,  be  a  party  to  a  reference  or  arbitra- 
tion;  but  one  under  civil  or  natural  incapac- 
ity cannot  be  bound  by  his  submission;  2  P. 
Wms.  45;  Furbish  v.  Hall,  8  Greenl.  (Me.) 
315;  Eastman  v.  Burleigh,  2  N.  H.  484; 
Schoff  v.  Bloomfield,  8  Vt  -172;  Inhabitants 
of  Buckland  v.  Inhabitants,  l<>  .Mass.  396; 
Inhabitants  of  Griswold  v.  Xorth-Stonington, 
5  Conn.  367;  Brady  v.  Brooklyn,  1  Barb.  (N. 
Y.)  584;  Street  v.  St.  Clair,  6  Munf.  (Va.) 
458;  Alexandria  Canal  Co.  v.  Swaun.  5  How. 
(U.  S.)  S3,  12  L.  Ed.  60;  Lathers  v.  Fish,  4 
Lans.  (N.  Y.)  213.  Every  one  is  so  far,  and 
only  so  far,  bound  by  the  award  as  he  would 
be  by  an  agreement  of  the  same  kind  made 
directly  by  him.  For  example,  the  submis- 
sion of  a  minor  is  not  void,  but  voidable; 
Millsaps  v.  Estes,  137  N.  C.  535,  50  S.  E. 
227,  70  L.  R.  A.  170,  107  Am.  St.  Rep.  496, 
where  on  motion  for  rehearing  (after  hold- 
ing it  yoid;  id.,  134  N.  C.  486,  46  S.  E.  988) 


the  court  said  that  there  wa3  a  conrlkt  of 

authority,    in    which  they    were   "inclin 

concur  with  those  courts  and  the  t 

who  maintain  the  proposition  that 

tracts  are  voidable  only"  and  that  there  is 

no  reason  to  take  it  out  of  the  general  rule 

as  to  contracts  of  infants.     See 

In  general,  in  cases  of  incapacity  of  the 
real  owner  of  property,  as  well  as  in  many 
of   agency,    the    person    who    has   the 
legal  control  of  the  property  may  make  sub- 
mission,  Including  a   husband   for  his  wife; 

5  Ves.  846  (before  the  Married  Women's 
Acts)  ;  a  parent  or  guardian  for  an  infant; 
Weston  v.  Stuart,  11  Me.  326;  Hutchins  v. 
Johnson,  12  Conn.  376,  30  Am.  I  ».•■•. 
Weed  v.  Ellis,  3  Caines  (N.  I.)  253  1  hut  not 
a  guardian  ml  litem;  Hannum's  Heirs  v. 
Wallace, 9  Humphr.  (Tenn.)   129);  a  ft 

for  his  cestui  que  trust;  3  Esp.  101;  an 
attorney  for  bis  client;  1  Ld.  Raym.  246; 
Scarborough  v.  Reynolds,  12  Ala.  252;  Wil- 
son v.  Young,  9  Pa.  101;  Diedrick  v.  Richley, 
2  Hill  (N.  y.)  271;  Talbot  v.  McGee,  I  T.  B. 
Monr.  (Ky.)  375;  Holker  v.  Parker,  7 
(U.  S.)  436,  3  L.  Ed.  396  (but  see  6 
Rep.  10);  an  agent  duly  authorized  for  his 
principal;  8  B.  &  C.  16 ;  Schoff  v.  Bloom- 
field,  8  Vt  472;  Inhabitants  of  Boston  v. 
Brazer,  11  Mass.  449;  Furber  v.  Chamber- 
lain, 29  N.  II.  405;  Wood  v.  R.  Co.,  S  X.  V. 
160;  an  executor  or  administrator  at  his  own 
peril,  but  not  thereby  necessarily  admitting 
assets;  Wheatley  v.  Martin's  Adm'r,  6  Leigh 
(Va.)  62;  Lea  v.  Colston,  5  T.  B.  Monr. 
(Ky.)  240;  Ireland  v.  Smith,  1  Barb.  (N.  Y.) 
419;  McKeen  v.  Oliphant,  IS  N.  J.  L.  442; 
assignees  under  bankruptcy  and  insolvency 
laws,   under  the  statutory  restrictions,   stat 

6  Geo.  IV.  c.  16,  and  state  statutes;  the  right 
being  limited  in  all  cases  to  that  which  the 
person  acting  can  control  and  legally  dispose 
of;    Baker  v.  Lovett.  6  Mass.  78,  4  An 

88;  Britton  v.  Williams's  Devisees,  6  Munf. 
(Va.)  453;  Milner  v.  Turner's  Heirs,  4  T.  B. 
Monr.  (Ky.)  240;  Fort  v.  Battle.  13  Smedes 
&  M.  (Miss.)  13B;  but  not  including  a  part- 
ner, for  a  partnership;  1  Cr.  M.  ..V  R,  681  ; 
Karthaus  v.  Ferrer,  1  Pet.  (U.  S.)  222,  7  I,. 
Bd.  121;  Buchanan  v.  Curry.  19  Johi 
Y.)  137,  10  Am.  Dec.  200;  Pillsbury  v.  Cam- 
mett,  2  N.  II.  284;  Armstrong  v.  Robinson,  5 
Gill  &  J.  (Md.)  412;  Taylor  v.  Coryell 
&  R.  (Pa.)  243;  Lind.  l'artn.  129,  - 
Kent  40;  the  administratrix  of  a  public 
contractor  may  join  in  a  submission  to  ar- 
bitration of  a  controversy  arising  out  of  the 
contract;  Bailey  v.  District  of  Columbia,  9 
App.   (D.  C.)   360. 

What  may  be  included  in  a  submission. 
Generally,  any  matter  which  the  parties 
might  adjust  by  agreement,  or  which  may 
be  the  subject  of  an  action  or  suit  at  law, 
except  perhaps  actions  (qui  tarn)  on  penal 
statutes  by  common  informers ;  for  crime? 
cannot  be  made  the  subject  of  adjustment 
and    composition    by   arbitration,    this    beinji 


ARBITRATION  AND  AWARD 


228 


ARBITRATION  AND  AWARD 


against  the  most  obvious  policy  of  the  law ; 
McMullen  v.  Mayo,  8  Sinedes  &  M.  (Miss.) 
298;  Akely  v.  Akely,  16  Vt  450;  Caton  v. 
MacTavish,  10  Gill  &  J.  (Md.)  192;  Ligon  v. 
Ford,  5  Munf.  (Va.)  10;  Partridge  v.  Hood, 
120  Mass.  403,  21  Am.  Rep.  524  ;  Stanwood 
v.  Mitchell,  59  Me.  121;  Davenport  v.  Fulker- 
son,  70  Mo.  417;  including  a  debt  certain  on 
a  specialty,  any  question  of  law,  the  con- 
struction of  a  will  or  other  instrument,  any 
personal  injury  on  which  a  suit  will  lie  for 
damages,  although  it  may  be  also  indictable; 
9  Ves.  3G7;  Smith  v.  Thorndike,  8  Greenl. 
(Me.)  119;  Walker  v.  .Sanborn,  8  Greenl. 
(Me.)  2S8;  Jones  v.  Mill  Corp.,  6  Pick. 
(Mass.)  148.  All  controversies  of  a  civil 
nature,  including  disputes  concerning  real 
estate,  may  be  the  subject  of  a  submission 
for  arbitration;  Finley  v.  Funk,  35  Kan.  668, 
12  Pac.  15;  "and  in  all  cases  of  injury,  ei- 
ther to  the  person  or  property,  where  damag- 
es 'would  be  recoverable  by  action,  the  ar- 
rangement of  the  matter  may  be  left  to  arbi- 
tration;" Miller  v.  Brumbaugh,  7  Kan.  343, 
349. 

An  agreement  to  refer  future  disputes  will 
not  be  enforced  by  a  decree  of  specific  per- 
formance, nor  will  an  action  lie  for  refusing 
to  appoint  an  arbitrator  in  accordance  with 
such  an  agreement ;  2  B.  &  P.  135 ;  Tobey  v. 
County  of  Bristol,  3  Sto.  800,  Fed.  Cas.  No. 
14,065;  Leonard  v.  House,  15  Ga.  473.  It  is 
considered  against  public  policy  to  exclude 
from  the  tribunals  of  the  state  disputes  the 
nature  of  which  cannot  be  foreseen;  4  Bro. 
C.  C.  312,  315.  See  Lauman  v.  Young,  31  Pa. 
306. 

An  agreement  to  arbitrate  any  dispute 
which  may  arise  is  ineffectual,  under  the 
settled  rules  of  law,  to  oust  the  jurisdiction 
of  the  courts  or  debar  either  party  from  re- 
sorting thereto ;  The  Excelsior,  123  U.  S.  40, 
8  Sup.  Ct.  33,  31  L.  Ed.  75;  Seward  v.  City  of 
Rochester,  109  N.  Y.  164,  16  N.  E.  348; 
Mentz  v.  Ins.  Co.,  79  Pa.  478,  21  Am.  Rep. 
80;  Supreme  Council  of  Order  of  Chosen 
Friends  v.  Forsinger,  125  Ind.  52,  25  N.  E. 
129,  9  L.  R.  A.  501,  21  Am.  St.  Rep.  196; 
Randel  v.  Canal  Co.,  1  Harr.  (Del.)  233; 
Chippewa  Lumber  Co.  v.  Ins.  Co.,  80  Mich. 
116,  44  N.  W.  1055;  Hager  v.  Shuck,  120  Ky. 
574,  87  S.  W.  300,  27  Ky.  L.  Rep.  957;  5  H. 
L.  Cas.  811;  8  Term  139;  Straits  of  Dover 
S.  S.  Co.  v.  Munson,  100  Fed.  1005,  41  C.  C. 
A.  156,  affirming  id.,  99  Fed.  787,  where  it  is 
said  that  "such  agreements  ever  since  Lord 
Coke's  time,  and  even  before,  have  been  held 
to  be  no  defense  to  an  action  in  the  courts." 
Such  an  agreement  does  not  oust  the  courts 
of  jurisdiction,  and  if  such  is  its  intent,  it 
is  invalid;  White  v.  R.  Co.,  135  Mass.  216; 
Chamberlain  v.  R.  Co.,  54  Conn.  472,  9  Atl. 
244;  Dugan  v.  Thomas,  79  Me.  221,  9  Atl. 
354 ;  Hurst  v.  Litchfield,  39  N.  Y.  377.  Agree- 
ments to  submit  questions  of  fact  to  arbitra- 
tion have  been  sustained;  5  H.  L.  Cas.  811; 
President,   etc.,   Delaware  &   Hudson  Canal 


Co.  v.  Coal  Co.,  50  N.  Y.  250,  where  it  was 
held  that  the  general  rule  stated  should  be 
applied  to  contracts  only  when  coming  strict- 
ly within  the  letter  and  spirit  of  decisions 
already  made,  and  that  it  is  contrary  to  the 
spirit  of  later  times  and  not  to  be  extended. 
Where,  however,  the  agreement  covers  a  case 
of  mixed  law  and  fact  and  its  effect  is  to 
oust  the  jurisdiction  of  a  court,  it  falls  with- 
in the  general  rule  and  is  void;  Ison  v. 
Wright,  55  S.  W.  202,  21  Ky.  L.  Rep.  1368; 
Vass  v.  Wales,  129  Mass.  38;  1  Exch.  Div. 
257.  A  provision  in  articles  of  an  associa- 
tion, that  any  dispute  between  it  and  any 
member  should  be  decided  by  arbitration  in 
lieu  of  legal  proceedings,  was  held  not  to 
oust  the  primary  jurisdiction  of  the  courts ; 
McMahon  v.  Ben.  Ass'n,  17  Phila.  (Pa.)  216; 
nor  did  a  provision  providing  for  submission 
of  disputes,  not  to  a  particular  person  or 
tribunal,  but  to  one  or  more  persons  to  be 
mutually  chosen ;  Home  Fire  Ins.  Co.  of 
Omaha  v.  Kennedy,  47  Neb.  138,  66  N.  W. 
278,  53  Am.  St.  Rep.  521. 

Revocation.  The  general  principle  with  re- 
spect to  voluntary  arbitrations  is  that  a  sub- 
mission is  subject  to  revocation  by  either 
party;  Chippewa  Lumber  Co.  v.  Ins.  .Co.,  80 
Mich.  116,  44  N.  W.  1055;  People  v.  Nash,  13 
Civ.  Pro.  (N.  Y.)  301;  before  the  making 
and  publication  of  the  award ;  Paulsen  v. 
Manske,  126  111.  72,  18  N.  E.  275,  9  Am.  St 
Rep.  532;  Oregon  &  W.  M.  Sav.  Bank  v.  Mtg. 
Co.,  35  Fed.  22;  Williams  v.  Mfg.  Co.,  153  N. 
C.  7,  68  S.  E.  902,  31  L.  R.  A.  (N.  S.)  679, 
138  Am.  St.  Rep.  637,  21  Ann.  Cas.  954; 
Mead's  Adm'x  v.  Owen,  83  Vt.  132,  74  Atl. 
1058 ;  Memphis  Trust  Co.  v.  Iron  Works,  166 
Fed.  398,  93  C.  C.  A.  162;  Boston  &  L.  R.  Co. 
v.  R.  Corp.,  139  Mass.  463,  31  N.  E.  751;  Sid- 
linger  v.  Kerkow,  82  Cal.  42,  22  Pac.  932; 
Levy  v.  Ins.  Co.,  58  W.  Va.  546,  52  S.  E.  449; 
but  not  under  a  clause  in  a  lease ;  Atterbury 
v.  Trustees,  66  Misc.  273,  123  N.  Y.  Supp.  25 ; 
nor  (under  a  statute)  after  final  submission 
to  the  arbitrators;  id.;  People  v.  Nash,  111 
N.  Y.  310,  18  N.  E.  630,  2  L.  R.  A.  180,  7  Am. 
St.  Rep.  747;  Thomas  W.  Finucane  Co.  v. 
Board  of  Education,  190  N.  Y.  76,  82  N.  E. 
737;  but  the  "final  submission"  is  held  to  be 
when  the  allegations  and  proofs  of  both  par- 
ties are  closed  and  the  matter  finally  sub- 
mitted to  the  arbitrators  for  their  decision ; 
In  re  Gitt,  140  App.  Div.  382,  125  N.  Y.  Supp. 
369;  Atterbury  v.  Trustees  of  Columbia  Col- 
lege, 66  Misc.  273,  123  N.  Y.  Supp.  25. 

Revocation  of  a  submission  may  take  place 
at  any  time  previous  to  the  award,  though  it 
be  expressed  in  the  agreement  to  be  irrevoca- 
ble. See  infra.  The  remedy  of  the  injured 
party  is  by  an  action  for  breach  of  the  agree- 
ment; Morse,  Arb.  &  Aw.  230;  4  B.  &  C. 
103;  Rowley  v.  Young,  3  Day  (Conn.)  118; 
Oregon  &  W.  Mortg.  Sav.  Bank  v.  Mortgage 
Co.,  35  Fed.  22. 

A  submission  under  rule  of  court  or  a 
statutory   submission   in   a    pending   suit   is 


ARBITRATION  AND  AWARD 


229 


ARBITRATION  AND  AWARD 


generally  irrevocable,  both  in  England  and 
the  United  States;  5  Burr.  497;  Haskell  v. 
Whitney,  12  Mass.  47;  Inhabitants  of  Cum- 
berland v.  North  Yarmouth,  4  Greenl.  (Me.) 
459;  Hunt  v.  Wilson,  6  N.  H.  3G ;  Bloomer 
v.  Sherman,  5  Paige  (N.  Y.)  575;  Tyson  v. 
Robinson,  25  N.  C.  333;  Carey  v.  County 
Com'rs,  19  Ohio,  245 ;  Poppers  v.  Knight,  09 
111.  App.  578;  Zehner  v.  Nav.  Co.,  187  Pa. 
487,  41  Atl.  4G4,  G7  Am.  St.  Rep.  586;  with- 
out leave  of  the  court.  But  "the  mere  fact 
that  the  controversies  agreed  to  be  submit- 
ted were  the  subject  of  a  pending  action 
would  not  make  it  a  submission  by  rule  of 
court";  Minneapolis  &  St.  L.  It.  Co.  v.  Coop- 
er, 59  Minn.  290,  01  N.  W.  143. 

There  are  cases,  apparently  only  in  Penn- 
sylvania, which  hold  that  where  the  submis- 
sion assumes  the  form  of  a  contract,  upon  a 
sufficient  consideration,  it  becomes  irrevoca- 
ble; McCune  v.  Lytle,  197  Pa.  404,  412,  47 
Atl.  190,  where  Brown,  J.,  says  of  this  state- 
ment, "So  well  is  it  settled  *  *  *  that 
reference  is  hardly  necessary  to  the  *  *  * 
authorities,"  and  then  quotes  from  several 
cases,  all  of  that  state. 

A  right  of  revocation  must  be  exercised 
before  the  publication  of  the  award ;  Butler 
v.  Greene,  49  Neb.  280,  68  N.  W.  496;  and 
before  the  party  seeking  to  revoke  has  no- 
tice that  the  award  is  made;  Coon  v.  Allen, 
156  Mass.  113,  30  N.  E.  83;  but  where  the 
submission  provides  for  a  written  award, 
it  may  be  revoked  after  the  arbitrators  have 
communicated  to  strangers  their  views,  but 
before  they  have  signed  an  award ;  Butler 
v.  Greene,  49  Neb.  280,  68  N.  W.  496;  but 
not  after  the  award  is  made  and  published ; 
Levy  v.  Ins.  Co.,  58  W.  Va.  546,  52  S.  E.  449. 

A  submission  is  revocable  even  if  it  pro- 
vides that  it  shall  be  irrevocable ;  8  Coke, 
81  b,  where  the  reason  is  given  that  "a  man 
cannot  by  his  act  make  such  authority,  pow- 
er or  warrant  not  counterinandable,  which 
is  by  the  law  and  of  its  own  nature  counter- 
inandable"; 5  B.  &  Aid.  507;  People  v.  Nash, 
111  N.  Y.  310,  18  N.  E.  630,  2  L.  R.  A.  180, 
7  Am.  St.  Rep.  747;  Power  v.  Power,  7  Watts 
(Pa.)  205;  Sartwell  v.  Sowles,  72  Vt.  270, 
48  Atl.  11,  82  Am.  St.  Rep.  943;  Tobey  v. 
Bristol  County,  3  Sto.  800,  Fed.  Cas.  No. 
14,065;  Heritage  v.  State,  43  Ind.  App.  595, 
88  N.  E.  114. 

The  formality  of  the  revocation  must  fol- 
low and  conform  to  that  of  the  submission, 
so  a  submission  under  seal  can  only  be  revok- 
ed by  writing  under  seal ;  Home  v.  Welsh,  35 
Pa.  Super.  Ct  569 ;  Mullins  v.  Arnold,  4  Sneed 
(Tenn.)  262;  Van  Antwerp  v.  Stewart,  8 
Johns.  (N.  Y.)  125;  Jacoby  v.  Johnston,  1 
Hun  (N.  Y.)  242;  Wallis  v.  Carpenter,  13 
Allen  (Mass.)  19;  McFarlane  v.  Cushman, 
21  Wis.  401 ;  Brown  v.  Leavitt,  26  Me.  251 ; 
one  in  writing  only  by  writing;  New  York 
Lumber  &  Wood-Working  Co.  v.  Schneider, 
1   N.  Y.   Supp.  441    (so,   by  statute,  of  any 


revocation)  ;  Shisler  v.  Keavy,  75  Pa.  79; 
Keyes  v.  Fulton,  42  Vt.  159;  Mand  v.  Pat- 
terson, 19  Ind.  App.  619,  49  N.  B.  974  ;  so  if 
it  be  oral  it  may  be  in  like  mi  oked ; 

Sutton  v.  Tyrrell,  10  Vt.  91 ;  Dexter  v. 
Young,  40  N.  H.  130. 

The  question  whether  a  revocation  was 
made  before  the  award  is  for  the  jury ; 
Hunt's  Lessee  v.  Guilford,  4  Ohio  310.  The 
institution  of  a  suit  by  one  party,  before 
award,  generally  revokes  by  Implication  the 
Submission;  State  v.  Jenkins.  4<i  N.  J.  L.  288, 
29  Am.  Rep.  237;  Commercial  Union  A 
ance  Co.  of  London  v.  Hooking,  115  Pa.  4n7, 
8  Atl.  5S9,  2  Am.  St.  Bep.  562;  Peters'  Adm'r 
v.  Craig,  6  Dana  (Ky.)  307 J  Kimball  v.  Gil- 
man,  60  N.  H.  54;  Paulsen  v.  Manske,  126 
111.  72,  18  N.  E.  275,  9  Am.  St.  Rep.  532. 

A  submission  is,  however,  not  revoked  by 
the  commencement  of  an  action  unless  the 
suit  covers  the  whole  subject  matter  sub- 
mitted, and  until  a  complaint  is  filed  by  a 
party  to  the  submission  the  adverse  party 
has  no  legal  notice  of  the  cause  of  action, 
and  the  arbitrators  may  proceed  with  the 
arbitration  and  render  an  award  though  a 
summons  has  been  issued;  Williams  v.  Mfg. 
Co.,  153  N.  C.  7,  68  S.  E.  902,  31  L.  R.  A.  I  N 
S.)  679,  138  Am.  St.  Rep.  637,  21  Ann.  Cas. 
954. 

Though  counsel  may  submit  his  client's 
cause  to  arbitration,  the  latter  may  revoke 
it  before  action  upon  it ;  Coleman  v.  Grubb, 
23  Pa.  393. 

As  to  arbitration  as  a  condition  precedent, 
see  11  Harv.  L.  Rev.  234. 

A  submission  at  common  law  is  generally 
revoked  by  the  death  of  either  party  (unless 
it  be  stipulated  otherwise),  or  of  the  arbi- 
trator, or  his  refusal  to  act ;  2  P..  &  Aid.  394 ; 
Dexter  v.  Young,  40  N.  H.  130;  Gregory  v. 
Pike,  94  Me.  27,  46  Atl.  793;  but  see  Bacon 
v.  Crandon,  15  Pick.  (Mass.)  79;  Freeborn 
v.  Denman,  8  N.  J.  L.  116;  Price's  Adm'r  v. 
Tyson's  Adm'rs,  2  Gill  &  J.  (Md.)  479: 
Leonard  v.  House,  15  Ga.  473;  by  the  death 
of  the  umpire,  or  the  setting  aside  of  the 
award  by  a  decree  of  a  court;  Parsons  v. 
Anibos,  121  Ga.  98,  48  S.  E.  696 ;  so  also  by 
marriage  of  a  feme  sole,  and  the  husband 
and  wife  may  then  be  sued  on  her  arbitra- 
tion bond ;  5  East  266.  It  is  not  revoked  by 
the  bankruptcy  of  the  party  or  by  the  death 
of  the  arbitrator  after  publication  of  the 
award;  4  B.  &  Aid.  2?>0;  Cartledge  v.  Cutliff, 
21  Ga.  1.  A  submission  in  a  pending  action 
at  law  falls  where  the  award  fails  for  mis- 
conduct of  the  arbitrators ;  Rand  v.  Peel, 
74  Miss.  305,  21  South.  10. 

Where  the  submission  makes  no  provision 
for  filling  a  vacancy,  if  one  occurs  by  the 
death  of  an  arbitrator  or  refusal  to  act,  it 
is  a  revocation ;  Wolf  v.  Augustine,  1S1  Pa. 
576,  37  Atl.  574. 

A  revocation  may  be  good  at  law  but  bad 
in   equity,    and   revocation  of   a   submission 


ARBITRATION  AND  AWARD 


230 


ARBITRATION  AND  AWARD 


which  has  been  made  a  rule  of  court  Is  a 
contempt;  1  Jac.  &  W.  4S5. 

Effect  of.  A  submission  of  a  case  in  court 
works  a  discontinuance  and  a  waiver  of  de- 
fects in  the  process;  Camp  v.  Root,  18  Johns. 
(N.  Y.)  22;  Bigelow  v.  Goss,  5  Wis.  421; 
Crooker  v.  Buck,  41  Me.  355 ;  and  the  bail 
or  sureties  on  a  replevin  bond  are  discharg- 
ed; Hill  v.  Hunnewell,  1  Tick.  (Mass.)  192; 
Cunningham  v.  Howell.  2.".  N.  C.  9 ;  2  B.  & 
Ad.  774.  But  see  0  Taunt.  37'.) ;  10  Bingh. 
118.  But  this  rule  has  been  modified  in  Eng- 
land by  stat.  17  &  18  Vict.  c.  125,  §  11 ;  8 
Exch.  327. 

The  submission  which  defines  and  limits, 
as  well  as  confers  and  imposes,  the  duty  of 
the  arbitrator  must  be  followed  by  him  in 
his  conduct  and  award;  but  a  fair  and  lib- 
eral construction  is  allowed  in  its  interpre- 
tation; 1  Wms.  Saund.  65;  Hume  v.  Hume, 
3  Pa.  144  :  Cheshire  Bank  v.  Robinson,  2  N. 
H.  126r  Karthaus  v.  Ferrer,  1  Pet.  (U.  S.) 
222,  7  L.  Ed.  121.  If  general,  it  submits  both 
law  and  fact ;  Indiana  Cent.  R.  Co.  v.  Brad- 
ley, 7  Ind.  49;  if  limited,  the  arbitrator  can- 
not exceed  his  authority ;  Barrows  v.  Copen, 
11  Cush.   (Mass.)   37. 

The  statutes  of  many  of  the  states  of  the 
United  States  provide  for  submissions  by 
the  parties  before  a  justice  of  the  peace, 
in  which  case  the  award  will  be  enforced 
as  if  it  had  been  made  under  jule  of  court; 
and  statutes  also  regulate  submissions  made 
under  rule  of  court. 

3.  The  Arbitrators.  A  private  extraor- 
dinary judge  chosen  by  the  parties  who  have 
a  matter  in  dispute,  invested  with  power  to 
decide  the  same.  Adopted  from  Bouv.  L. 
Diet,  in  Gordon  v.  U.  S.,  7  Wall.  188,  194, 
19  L.  Ed.  35;  also  in  Miller  v.  Canal  Co.,  53 
Barb.  (N.  Y.)  590,  595,  with  this  additional 
sentence  from  the  same  work :  "Arbitrators 
are  so  called  because  they  have  generally  an 
arbitrary  power,  there  being,  in  common,  no 
appeal  from  their  sentences,  which  are  call- 
ed awards." 

A  private  extraordinary  judge,  to  whose 
decision  matters  in  controversy  are  referred 
by  consent  of  the  parties. 

"Referee"  is  of  frequent  modern  use  as  a 
synonym  of  "arbitrator,"  but  it  is  in  its 
origin  of  broader  significance  and  it  is  less 
accurate  than  arbitrator. 

An  arbitrator  at  common  law  "is  to  be 
considered  as  a  judge  ^ar  tribunal  of  the  par- 
ties' own  choosing,  and  his  decision  or  judg- 
ment cannot  be  set  aside  unless  for  partiali- 
ty or  corruption,  which  will  not  be  presum- 
ed on  slight  grounds,  but  must  be  clearly 
shown ;"  McManus  v.  McCulloch,  6  Watts 
(Pa.)   357. 

Arbitrators  are  judges  chosen  by  the  par- 
ties to  decide  matters  submitted  to  them, 
finally  and  without  appeal;  Burchell  v. 
Marsh,  17  How.  (U.  S.)  344,  15  L.  Ed.  96; 
Miller  v.  Canal  Co.,  53  Bdrb.  (N.  Y.)  590; 
and  they   must  be  taken  as  they  are  with 


their  weaknesses  and  frailties,  and  their  ac- 
tion if  honest  and  fair,  is  binding;  Silver 
v.  Lumber  Co.,  40  Fed.  192 ;  but  the  power  to 
appoint  them  is  not  judicial,  but  executive; 
Kean  v.  Ridgway,  16  S.  &  R.   (Pa.)   65. 

They  are  sometimes  considered  as  the  sub- 
stitutes and  sometimes  as  the  judges  of  the 
parties;  they  can  do  what  the  parties  can 
and  more  than  the  courts,  and  their  power 
is  revocable  as  a  power  of  attorney ;  Dixon 
v.  Morehead,  Add.   (Pa.)   216. 

Arbitrators  have  the  powers  of  a  court 
and  jury ;  Kennedy  v.  Luhman,  13  Montg. 
Co.  L.  Rep.  (Pa.)  131.  They  are  judges,  not 
agents  of  the  parties  appointing  them;  1  Ves. 
226;  9  Ves.  69;  and  their  duties  are  more 
judicial  than  fiduciary ;  Collins  v.  Oliver,  4 
Humph.  (Tenn.)  439;  quasi-judicial  officers; 
Hoosac  Tunnel,  Dock  &  Elevator  Co.  v. 
O'Brien,  137  Mass.  424,  50  Am.  Rep.  323; 
per  contra,  it  is  said  that  they  are  the 
agents  of  both  parties  and  their  acts  are  to 
be  considered  as  the  acts  of  the  parties 
themselves;  Hays  v.  Hays,  23  Wend.  (N. 
Y.)  363;  Strong  v.  Strong,  9  Cush.  (Mass.) 
560. 

An  arbitrator  must  be  a  disinterested  per- 
son to  whom  a  matter  in  dispute  is  submit- 
ted for  decision ;  Garr  v.  Gomez,  9  Wend. 
(N.  Y.)  649;  Miller  v.  Canal  Co.,  53  Barb. 
(N.  Y.)  590;  State  v.  Appleby,  25  S.  C. 
100,  104;  Perry  v.  Cobb,  88  Me.  435,  34  Atl. 
278,  49  L.  R.  A.  389.  "In  order  to  clothe  a 
person  with  the  authority  of  an  arbitrator, 
the  parties  must  mutually  agree  to  be  bound 
by  the  decision  of  the  person  chosen  to  de- 
termine the  matter  in  controversy ;"  Gordon 
v.  U.  S.,  7  Wall.  188,  194,  19  L.  Ed.  35.  Like 
jurors  impannelled  for  the  trial  of  a  cause, 
arbitrators  are  invested  pro  hac  vice  with 
judicial  functions,  the  rightful  discharge  of 
which  calls  for  and  presupposes  the  most 
absolute  impartiality ;"  Strong  v.  Strong,  9 
Cush.  (Mass.)  560;  Grosvenor  v.  Flint,  20 
R.  I.  21,  37  Atl.  304 ;  where  an  appraiser  un- 
der an  insurance  policy  was  not  disinterest- 
ed, and  that  fact  was  concealed,  a  suit  was 
held  maintainable  to  set  aside  the  appraise- 
ment; Bradshaw  y.  Ins.  Co.,  137  N.  Y.  137, 
32  N.  E.  1055,  where  it  was  held  unnecessary 
to  decide  whether  it  was  an  arbitration. 

Appointment  and  Qualifications.  Usually  a 
single  arbitrator  is  agreed  upon,  or  the  par- 
ties each  appoint  one,  with  a  stipulation  that, 
if  they  do  not  agree,  another  person,  called 
an  umpire,  named,  or  to  be  selected  by  the 
arbitrators,  shall  be  called  in,  to  whom  the 
matter  is  to  be  referred ;  Cald.  Arb.  ch.  IV ; 
Smith  v.  Morse,  9  Wall.  (U.  S.)  76,  19  L.  Ed. 
597. 

In  general,  any  objection  to  the  appoint- 
ment of  an  arbitrator ;  Estice  v.  Cockerell, 
26  Miss.  127;  Indiana  Ins.  Co.  v.  Brehm,  88 
Ind.  578;  Robb  v.  Brachman,  38  Ohio  St 
423 ;  or  umpire  will  be  waived  by  attending 
before  him;    9  Ad.  &  E.  679;    Anderson  v. 


ARBITRATION  AND  AWARD 


231 


ARBITRATION  AND  AWARD 


Burchett  &  Farley,  48  Kan.  153,  29  Pac.  315;  j 
and  an  objection  should  be  made  at  the  trial ;  ! 
Cones  v.  Vanosdol,  4  Ind.  248;  Madison  Ins. 
Co.  v.  Griffin,  3  Ind.  277;  Graham  v.  Gra- 
ham, 9  Pa.  254,  49  Am.  Dec.  557  ;  Christman 
v.  Moran,  9  Pa.  4N7 ;  one  who  goes  to  trial 
before  a  referee  without  requiring  an  oath 
waives  the  oath  ;  Newcomb  v.  Wood,  97  U. 
S.  581,  24  L.  Ed.  1085;  Maynard  v.  Frederick, 
7  Cush.  (Mass.)  2-17.  It  is  said  that  any  per- 
son may  be  chosen  as  an  arbitrator;  Morse. 
Arh.  &  Aw.  99;  and  it  is  no  objection  that 
one  has  been  formerly  counsel  for  the  party 
in  whose  favor  he  found,  that  fael  not  being 
known  to  the  other  party;  Goodrich  v.  Hul- 
bert,  123  .Mass.  190,  25  Am.  Rep.  60;  or  that 
one  had  been  intimate  with  the  party  and 
had  heard  his  version  of  the  dispute  before; 
Morville  v.  Tract  Soc,  123  Mass.  129;  an 
employe  of  one  party;  Howard  v.  R.  Co.,  24 
Fla.  5G0,  5  South.  356;  a  stockholder  of  a 
corporation  party;  Williams  v.  Ry.  Co.,  112 
Mo.  4G3,  20  S.  W.  631,  34  Am.  St.  Rep.  403; 
Inhabitants  of  Leominster  v.  R.  Co.,  7  Allen 
(Mass.)  38;  a  woman,  married  or  single; 
Evans  v.  Ives,  15  rhila.  (ra.)  635 ;  or  a  judge, 
if  named  by  the  parties;  Hopkins  v.  So- 
douskie,  1  Bibb  (Ivy.)  14S;  Galloway's  Heirs 
v.  Webb,  Hard.  (Ky.)  31S  (but  not  under  the 
civil  law;  Doin.  Civ.  L.  sec.  Ill3) ;  or  one 
who  has  acted  as  an  arbitrator  before  in  the 
same  capacity;  Stemmer  v.  Ins.  Co.,  33  Ore. 
65,  49  Pac.  5S8,  53  Pac.  498 ;  Van  Winkle  v. 
Ins.  Co.,  55  W.  Va.  286,  47  S.  E.  82.  The  re- 
lation of  landlord  and  tenant  subsisting  be- 
tween an  arbitrator  and  one  of  the  parties 
does  not  disqualify  him  ;  Fisher  v.  Towner, 
14  Conn.  26;  nor  does  the  fact  that  the  ref- 
eree and  the  attorney  for  one  of  the  parties 
had  an  office  together  and  were  in  daily  and 
friendly  intercourse ;  Perry  v.  Moore,  2  E.  D. 
Smith  (N.  Y.)  32. 

Whether  natural  or  legal  disabilities  are 
a  disqualification  appears  not  to  be  authori- 
tatively settled.  It  is  said  that  they  do  not 
so  operate;  Viner,  Ahr.  Arbitrcnunt  (A.  2); 
Russ.  Arb.  &  Aw.  (9th  Ed.)  92  (citing  only 
Viner) ;  Morse,  Arh.  &  Aw.  99  (citing  only 
Russell);  contra,  Com.  Dig.  Arbitrament 
(C),  who  says  that  persons  of  nonsane  mem- 
ory, lunatics,  infants,  persons  not  sui  juris 
as  a  villein,  persons  dead  in  law,  as  a  monk, 
one  attainted  of  treason  or  felony,  cannot  be 
arbitrators  (citing  no  case  but  only  West, 
Symb.  163  &.).  There  appears  to  be  no  de- 
cided case  on  the  subject  and  no  definite  or 
modern  authority  to  indicate  that  a  person 
who  is  not  sui  juris  for  any  other  purpose 
would  be  qualified  to  act  in  this  capacity. 
The  rule  of  the  civil  law  seems  to  be  def- 
inite to  the  effect  that  all  persons  may  be 
arbitrators  except  such  as  are  under  some 
incapacity  or  infirmity  which  renders  them 
unfit  for  that  function ;  Dom.  Civ.  L.  sec. 
1112.  The  only  case  cited  to  support  the 
right  of  parties  to  appoint  any  one  without , 


qualification  is  simply  a  that  it  is 

immaterial  whether  the  arbitrator  he  a 
fessional  man  or  not  ;  8  D 

There  are  certain   facts  which,   as  In   the 
case  of  judges  or  jurors,  will  render  a  per- 
son incapable  of  being  an  arbitrator,  if  they 
are  unknown  to  the  party  ol .: 
example,  interest  in  the  subject  mat 
nor  v.  Simpson.  4  Sadler  (Pa.)  105,  7  Atl.  161  ; 
Pearson  v.  Barringer,  109  N.  I 
942;    strong  v.  Strong,  12  rush.  (Mass.)  135 
(where  the  question  of  the  arbitrator's  Im- 
partiality was  submitted  to  the  jury  in  an 
action  on  a  bond  to  abide  the  award);    kin- 
ship to  cither  party;    Brown  v.  Leavi 
Me  251  (hut  not  equal  relationship  to  both 
parties;  McGregor  v.  Sprott,  59  Hun,  <;i7,  13 
X.  Y.  191) ;   a  transfer  to  an  arbitrator 
pending   arbitration;     Spearman    v.    Wilson. 
1 1  (hi.  473  ;   free  judgment  of  the  c. 
Me  v.  Billiard,  55  N.  II.  428  (but  not  an  opin- 
ion  expressed   five  years  before;     Brush    v. 
Fisher,  70  Mich.  469,  38  N.  W.  446,  14  Am. 
St    Rep.   510) ;     previous  conviction    of  per- 
jury;    Colics,    P.    C.    257;     strong   bias    and 
prejudice;    Bash  v.  Christian,  77  Ind.  290, 

Proceedings.  Arbitrators  should  give  no- 
tice of  the  time  and  place  of  hearing  to  the 
parties  interested  ;  Lutz  v.  Linthicum,  8  Pet 
(U.  S.)  165,  178,  8  L.  Ed.  904;  Klmendorf  v. 
Harris,  23  Wend.  (N.  Y.i  628,  35  A  in.  Dec. 
587;  Bushey  v.  Culler.  26  Md.  534;  Crowell 
v.  Davis,  12  Mete.  (Mass.)  293;  Vessel  Own- 
ers' Towing  Co.  v.  Taylor,  126  111.  250,  18  N. 
B.  663;  Curtis  v.  City  of  Sacramento,  64 
Cal.  102,  28  Pac.  10S ;  an  award  mule  with- 
out such  notice  of  the  hearing  is  a  nullity; 
Peters  v.  Newkirk,  6  Cow.  (X.  Y.)  103 ;  it  is 
not  binding  on  the  party  having  no  notice; 
Cobb  v.  Wood,  32  Me.  4",;  M  Kinney  v. 
Page,  32  Me.  513;  Dormoy  v.  Knower,  55  la. 
722,  8  N.  W.  670;  but  where  the  BubmJ 
is  by  written  agreement  a  surety  in  the  agree- 
ment need  not  be  notified  of  the  hearing; 
Farmer  v.  Stewart,  2  X.  H.  97;  and  where 
the  respective  attorneys  of  the  parties  were 
arbitrators  and  notice  was  unnecessary;  Hill 
v.  Hill,  11  Smedes  &  M.  (Miss.)  616;  and 
where  notice  was  given  and  the  party  Bought 
to  set  aside  the  award  on  the  ground  that  he 
was  unavoidably  prevented  from  attending 
by  the  obstruction  of  roads  caused  by  high 
water,  it  was  not  error  to  refuse  the  mo- 
tion; Shroyer  v.  Barkley,  24  Mo.  346.  Where 
one  party  had  ineffectually  at  tempted  to  re- 
voke his  submission  and  refused  to  attend, 
the  arbitrator  may  proceed  ex  parte,  without 
giving  him  notice;  1  Jac.  &  W.  485,  !'.>2  ;  and 
the  refusal  of  a  party  to  attend  or  concern 
himself  with  the  matter  is  a  waiver  of  no- 
tice; Vincent  v.  Ins.  Co.,  120  la.  272.  94  X. 
W.  45S.  In  England  the  practice  seems  to 
be  that  the  arbitrators  are  not  required  to 
give  notice,  but  that  the  party  obtaining  an. 
appointment  of  the  time  for  hearing  should 
serve  it  on  the  solicitors  of  the  other  party ; 


ARBITRATION  AND  AWARD 


232 


ARBITRATION  AND  AWARD 


Russ.  Arb.  &  Aw.  132;  Morse  Arb.  &  Aw. 
117 ;  and  in  one  case  Lord  Hardwicke  held 
that  no  notice  from  the  arbitrators  was  re- 
quired;  3  P.  Wms.  529.  The  power  of  the 
arbitrators  is  not  determined  by  their  neg- 
lect to  attend  at  the  time  designated  and  they 
may  appoint  another  session  within  any  rea- 
sonable time ;  Harrington  v.  Rich,  6  Vt.  666. 

They  should  all  conduct  the  investigation 
together,  and  should  sign  the  award  in  each 
other's  presence ;  Smith  v.  Smith,  28  111.  56 ; 
Thompson  v.  Mitchell,  35  Me.  281;  Hills  v. 
Ins.  Co.,  129  Mass.  345;  but  a  majority  is 
held  sufficient;  Parker  v.  Ins.  Co.,  3  R.  I. 
192 ;  Robinson  v.  Bickley,  30  Pa.  384 ;  Hoff- 
man v.  Hoffman,  26  N.  J.  L.  175;  Kile  v. 
Chapin,  9  Ind.  150;  Henderson  v.  Buckley, 
14  B.  Monr.  (Ky.)  292;  Cartledge  v.  Cutliff, 
21  Ga.  1 ;  Doherty  v.  Doherty,  148  Mass.  367, 
19  N.  El  352.  An  award  by  two  of  three  ar- 
bitrators is  binding;  Doyle  v.  Patterson,  84 
Va.  800,  6  S.  E.  138 ;  Hewitt  v.  Craig,  86  Ky. 
23,  5  S.  W.  280;  contra,  Kent  v.  French,  76 
la.  187,  40  N.  W.  713.  See  supra  as  to  mat- 
ters of  "public  concern." 

In  investigating  matters  in  dispute,  they 
are  allowed  the  greatest  latitude;  1  B.  &  P. 
91;  Langley  v.  Hickman,  1  Sandf.  (N.  Y.) 
681 ;  Hollingsworth  v.  Leiper,  1  Dall.  (U.  S.) 
161,  1  L.  Ed.  82 ;  Jones  v.  Boston  Mill  Corp., 
6  Pick.  (Mass.)  148;  Mulder  v.  Cravat,  2 
Bay  (S.  C.)  370;  Askew  v.  Kennedy,  1  Bail 
(S.  C.)  46.  But  see  Fennimore  v.  Childs,  6 
N.  J.  L.  3S6 ;  McAlister  v.  McAlister,  1  Wash. 
(Va.)  193 ;  Fowler  v.  Thayer,  4  Cush.  (Mass.) 
Ill;  Forbes  v.  Frary,  2  Johns.  Cas.  (N.  Y.) 
224;  Latimer  v.  Ridge,  1  Binn.  (Pa.)  458. 
They  are  judges  both  of  law  and  of  fact,  and 
are  not  bound  by  the  rules  of  practice  adopt- 
ed by  the  courts ;  1  Ves.  Ch.  369 ;  Burchell 
v.  Marsh,  17  How.  (U.  S.)  344,  15  L.  Ed.  96 ; 
Skeels  v.  Chickering,  7  Mete.  (Mass.)  316; 
Ward  v.  Bank,  7  Mete.  (Mass.)  486;  Kendall 
v.  Power  Co.,  36  Me.  19 ;  Long  v.  Rhodes,  36 
Mie.  108;  Ebert  v.  Ebert,  5  Md.  353;  In  re 
Riddle's  Estate,  19  Pa.  431 ;  Sargeant  v.  Butts, 
21  Vt.  99 ;  White  v.  White,  21  Vt.  250 ;  Ben- 
nett v.  Bennett,  25  Conn.  66 ;  Smith  v.  Doug- 
lass, 16  111.  34;  Ross  v.  Watt,  16  111.  99; 
Lunsford  v.  Smith,  12  Gratt.  (Va.)  554;  In- 
diana Cent.  Ry.  Co.  v.  Bradley,  7  Ind.  49; 
Hotaling  v.  Cronise,  2  Cal.  64;  Tyson  v. 
Wells,  id.  122;  Sessions  v.  Bacon,  23  Miss. 
272;  Price  v.  Brown,  98  N.  Y.  3S8;  King  v. 
Mfg.  Co.,  79  N.  C.  360;  Adams'  Adm'r  v. 
Ringo,  79  Ky.  211.  Thus,  the  witnesses  were 
not  sworn  in  Bergh  v.  Pfeiffer,  Lalor's  Supp. 
(N.  Y.)  110;  Woodrow  v.  O'Conner,  28  Vt. 
776.  They  may  decide  ex  wquo  et  bono,  and 
need  not  follow  the  law ;  the  award  will  be 
set  aside  only  when  it  appears  that  they 
meant  to  be  governed  by  the  law  but  have 
mistaken  it;  2  C.  B.  705;  Kleine  v.  Catara, 
2  Gall.  61,  Fed.  Cas.  No.  7,869 ;  Pringle  v. 
McClenachan,  1  Dall.  (U.  S.)  486,  1  L.  Ed. 
235;    Jones  y.   Corp.,  6  Pick.   (Mass.)   148; 


White  v.  White,  21  Vt.  250;  Greenough  v. 
Rolfe,  4  N.  H.  357 ;  but  if  they  decide  a  mat- 
ter honestly  and  fairly  according  to  their 
judgment,  the  award  will  not  be  set  aside 
because  they  decide  the  facts  erroneously,  or 
were  mistaken  in  the  law  they  applied  to 
them,  or  decide  on  an  erroneous  theory ;  God- 
dard  v.  King,  40  Minn.  164,  41  N.  W.  659; 
Hall  v.  Ins.  Co.,  57  Conn.  105,  17  Atl.  356; 
Baltimore  &  O.  R.  Co.  v.  Canton  Co.,  70  Md. 
405,  17  Atl.  394;  Thornton  v.  McCormick, 
75  la.  285,  39  N.  W.  502 ;  Burchell  v.  Marsh, 
17  How.  (U.  S.)  344,  15  L.  Ed.  96. 

Under  submissions  in  pais,  the  attendance 
of  witnesses  and  the  production  of  papers 
was  entirely  voluntary  at  common  law ;  2 
Sim.  &  S.  418 ;  2  C.  &  P.  550.  It  was  other- 
wise when  made  under  a  rule  of  court. 

Duties  and  powers  of.  Arbitrators  can- 
not delegate  their  authority;  Cro.  Eliz.  726; 
6  C.  B.  258;  Sutton  v.  Horn,  7  S.  &  R.  (Pa.) 
228 ;  Kingston  v.  Kincaid,  1  Wash.  C.  C.  448, 
Fed.  Cas.  No.  7,821;  Shipman  v.  Fletcher, 
82  Va.  601;  Hicks  v.  McDonnell,  99  Mass. 
459.  The  power  ceases  with  the  publication 
of  the  award ;  Newman  v.  Labeaume,  9  Mo. 
30;  and  death  after  publication  and  before 
delivery  does  not  vitiate  it;  Cartledge  v. 
Cutliff,  21  Ga.  1.  They  cannot  be  compel- 
led to  make  an  award ;  in  which  respect 
the  common  law  differs  from  the  Roman; 
Story,  Eq.  Jur.  §  1457;  or  to  disclose  the 
grounds  of  their  judgment ;  3  Atk.  644 ;  Ebert 
v.  Ebert,  5  Md.  353 ;  State  v.  Peticrew's  Ex'r, 
19  Mo.  373. 

An  arbitrator  may  retain  the  award  till 
paid  for  his  services,  but  cannot  maintain 
assumpsit  in  England  without  an  express 
promise;  2  M.  &  G.  847,  870;  3  Q.  B.  466, 
928.  But  see  1  Gow.  7;  1  B.  &  P.  93.  In 
the  United  States  he  may ;  Hinman  v.  Hap- 
good,  1  Den.  (N.  Y.)  1S8,  43  Am.  Dec.  663; 
Goodall  v.  Cooley,  29  N.  H.  48. 

A  submission  to  arbitration  by  one  of  sev- 
eral parties  without  the  consent  of  the  oth- 
ers, whether  by  rule  of  court  or  otherwise, 
is  void ;   Gregory  v.  Trust  Co.,  36  Fed.  408. 

4.  The  Umpire.  Sometimes  a  submission 
provides  for  the  appointment  of  one  arbitra- 
tor by  each  party  with  authority,  if  they  dis- 
agree, to  call  in  a  third  person,  usually  des- 
ignated as  the  umpire.  This  term  "denotes  one 
who  is  to  decide  the  controversy  in  case  the 
others  cannot  agree;"  Keans  v.  Rankin,  2 
Bibb  (Ky.)  88.  The  jurisdiction  of  the  um- 
pire and  arbitrators  cannot  be  concurrent; 
Morse,  Arb.  &  Aw.  241 ;  if  the  arbitrators 
make  an  award,  it  is  binding;  if  not,  the 
award  of  the  umpire  is  binding;  T.  Jones 
167.  If  the  umpire  sign  the  award  of  the 
arbitrators,  it  is  still  their  award,  and  vice 
versa;  Rigden  v.  Martin,  6  Harr.  &  J.  (Md.) 
403.  He  determines  the  issue  submitted  to 
the  arbitrators  on  which  they  have  failed  to 
agree,  which  is  his  sole  award ;  and  neither 
of   the   original   arbitrators   is    required    to 


ARBITRATION  AND  AWARD 


233 


ARBITRATION  AND  AWARD 


Join  in  the  award ;  Haven  v.  Winnisimmet 
Co.,  11  Allen  (.Mass.)  384,  87  Am.  Dec.  72:;; 
Ingrahain  v.  WMtmore,  75  111.  30.  Some- 
times the  third  person  called  in  so  to  decide 
is  called  a  "special  arbitrator."  The  distinc- 
tion is  that,  when  the  special  or  third  arbi- 
trator is  called  In,  the  authority  to  make  an 
award  is  vested  in  the  three  jointly,  and 
even  if  an  award  by  two  is  good,  it  must  be 
the  result  of  deliberations,  but  when,  upon 
a  disagreement  between  arbitrators,  an  um- 
pire is  called  in,  the  powers  of  the  former 
are  functus  officio,  and  the  latter  has  exclu- 
sive authority  to  make  a  decision  ;  Day  v. 
Hammond,  57  N.  Y.  479,  15  Am.  Rep.  522, 
quoting  Lyon  v.  Blossom,  4  Duer  (N.  Y.)  318 ; 
Ohandos  v.  Ins.  Co.,  84  Wis.  184,  54  N.  W. 
390,  19  L.  R.  A.  321 ;  Hartford  Fire  Ins.  Co. 
v.  Mercantile  Co.,  56  Fed.  378, -5  C.  C.  A.  524. 

The  power  to  appoint  an  umpire  "must  be 
given  in  express  words"  and  is  not  to  be 
implied  even  from  "power  given  to  two  ar- 
bitrators in  the  event  of  their  disagreement 
to  select  a  third  person,"  as  in  such  case  the 
latter  "is  a  joint  arbitrator  and  not  an  um- 
pire" ;  Gaffy  v.  Bridge  Co.,  42  Conn.  143, 
quoting  Lyon  v.  Blossom,  4  Duer.  (N.  Y.)  328. 

A  third  or  special  arbitrator  must  be  ap- 
pointed before  the  hearing  unless  the  ap- 
pointment of  one  is  waived  either  expressly 
or  tacitly  by  appearance  of  the  parties  before 
the  two;  Badders  v.  Davis,  88  Ala.  367,  6 
South.  834 ;  Phipps  v.  Tompkins,  50  Ga.  G41 ; 
14  TJ.  C.  Q.  B.  495 ;  but  an  umpire  may  be 
appointed  either  before;  Peck  v.  Wakely,  2 
McCord  (S.  C.)  279;  Van  Cortlandt  v.  Un- 
derbill, 17  Johns.  (N.  Y.)  405  ;  Rigden  v.  Mar- 
tin, 6  Harr.  &  J.  (Md.)  403;  or  after  a  dis- 
agreement between  the  arbitrators ;  Rogers 
v.  Corrothers,  26  W.  Va.  238;  Chandos  v. 
Ins.  Co.,  84  Wis.  184,  54  N.  W.  390,*  19  L. 
R.  A.  321 ;  unless  otherwise  provided  by 
statute;  In  re  Grening,  74  Hun  62,  26  N.  Y. 
S.  117. 

Arbitrators  may  appoint  an  umpire  after 
their  term  of  service  has  expired,  if  the 
time  is  not  gone  within  which  the  umpire 
was  to  make  his  award ;  McKinstry  v.  Solo- 
mons, 2  Johns.  (N.  Y.)  57.  Subsequent  dis: 
sent  of  the  parties,  without  just  cause,  will 
have  no  effect  upon  the  appointment;  but 
they  should  have  notice ;  Crowell  v.  Davis, 
12  Mete.  (Mass.)  293.  If  an  umpire  refuses 
to  act,  another  may  be  appointed  toties  quo- 
tics;  11  East  367.  If  the  arbitrators  and 
umpire  act  together  and  make  a  joint  award, 
it  will  be  good ;  Rison  v.  Berry,  4  Rand. 
(Va.)  275;    Bulstr.  184. 

Under  an  agreement  to  arbitrate,  the  sub- 
sequent proceeding  of  one  arbitrator  and 
the  umpire  to  make  an  award  without  the 
presence  of  the  other  arbitrator  is  unau- 
thorized and  illegal ;  Cravens  v.  Estes,  144 
Ky.  511.  139  S.  W.  701  ;  and  so  is  the  .hoi-,. 
of  an  umpire  by  lot,  and  the  award  will  be 
set  aside ;   9  B.  &  C.  624 ;   9  Ad.  &  El.  699. 


The  umpire  is  called  into  the  arbitral 
act  only  after  a  disagreement  between   the 
arbitrators,   and   his   opinion   and   ju<i_ 
must  control  the  award;  Mullins  v.  Arnold,  4 
(Tenn.)   202 ;    but  he  cannot,   in   the 
absence  of  one  of  the  parties  and  one  of  the 
arbitrators,  act  on  information  from  t.. 
er   parly   and   arbitrator;     Cravens    v.    . 
144  Ky.  511,  139  S.  \V.  76L 

Where  the  agreement  permits  a  majority 
decision,  the  withdrawal  of  one  arbitrator 
and  his  refusal  to  act,  after  one  party  has 
attempted  to  withdraw,  will  not  affect  an 
award  made  the  same  day  by  the  oth< 
bitrators;  Atterbury  v.  Trustees  of  Colum- 
bia College,  <;<;  Misc.  Rep.  27::.  iu::  N.  v. 

At  common  law  all  the  arbitrators  idu.h 
agree  unless  the  submission  provides  to  the 
contrary;  Washburn  v.  White.  197 
540,  84  X.  B.  106;  Tennessee  Lumber  Mfg. 
Co.  v.  Clark  Bros.  Co..  182  Fed.  618,  105  C. 
C.  A.  156 ;  even  where  by  statute  or  under 
a  contract  a  majority  may  make  a  report, 
all  the  proceedings  must  be  participated  in 
by  all  the  members;  Heritage  v.  State,  43 
Ind.  App.  595,  88  N.  E.  114;  but  where  the 
agreement  provided  for  an  award  by  two  of 
three,  the  fact  that  one  refused  to  sign  the 
award,  or  to  participate  in  a  further  ascer1 
tainment  of  damages  which  the  settlement 
required,  did  not  invalidate  a  subsequent  pro- 
ceeding for  ascertaining  damages;  Toledo  S. 
S.  Co.  v.  Transp.  Co.,  1S4  Fed.  801,  106  C.  C. 
A.  501.  And  where  the  contract  provided 
that  one  arbitrator  should  be  selected  by 
each  party  and  they  tw.o  have  power  to  Be 
lect  a  third,  it  was,  held  that  by  clear  impli- 
cation two  were  authorized  to  make  a  bind- 
ing and  final  award;  Clark  Bros.  Co.  v. 
Mfg.  Co.,  176  Fed.  929;  but  this  ease  was 
reversed  in  Tennessee  Lumber  Mfg.  Co.  v. 
Clark  Bros.  Co.,  1S2  Fed.  618,  105  C.  C.  A 
156,  where  the  distinction  is  well  put  be- 
tween cases  where  the  power  given  to  two 
to  appoint  a  third  is  conditioned  upon  their 
disagreement  or  no;  in  the  former  case,  the 
third  is  an  umpire,  and  a  majority  award 
would  be  valid,  but  in  the  latter  case,  "the 
three  constituted  the  board,  *  *  •  (and) 
their  award,  to  be  valid,  must  be  unani- 
mous;" and  to  the  same  effect  is  Weaver  v. 
Powel,  148  Pa.  372,  23  Atl.  1070.  Both 
courts  cite  Hobson  v.  McArthur,  16  Pet.  (U. 
S.)  1S2,  10  L.  Ed.  9"0,  where  the  agreement 
was  that  "if  the  two  could  not  agree  on 
the  value  of  the  land  or  any  part  thereof, 
they  should  choose  a  third  person,  who 
should  agree  on  the  value  of  the  land,"  and 
it  was  held  "a  more  reasonable  construction 
to  consider  the  third  man  in  the  character 
of  an  umpire,  to  deride  between  the  two  that 
should  disagree,"  and  the  award  of  two  was 
held  good.  This  case  is  contrary  to  the  ap- 
parently well  settled  rule  that,  when  there 
is  an  umpire,  he  a -one  decides  and  the  arbi- 
trators do   not   participate.     But   there   are 


ARBITRATION  AND  AWARD 


234 


ARBITRATION  AND  AWARD 


other  cases  "'on  all  fours"  with  that  in  Hob- 
son  v.  McArthur,  16  Pet.  (U.  S.)  1S2,  10  L. 
Ed.  930,  as  Quay  v.  Westcott,  60  Pa.  103. 
See  supra. 

5.  The  Award.  The  award  is  the  judgment 
or  decision  of  arbitrators  or  referees  on  a 
matter  submitted  to  them.  It  is  also  the 
writing  containing  such  judgment.  Cowell ; 
Termes  de  la  Ley;  Jenk.  137;  Watson,  Arb. 
174;    Russell,  Arb.  234. 

The  word  is  derived  from  the  Latin, 
aicarda,  awardum,  Old  French,  agarda  from 
d  garder,  to  keep,  preserve,  to  be  guarded,  or 
kept:  so  called  because  it  is  imposed  on  the 
parties  to  be  observed  or  kept  by  them.  Spel- 
man,  Gloss. 

Requisites  of.  To  be  conclusive,  the  award 
should  be  consonant  with  and  follow  the  sub- 
mission, and  affect  only  the  parties  to  the 
submission ;  otherwise,  it  is  an  assumption 
of  power,  and  not  binding ;  Lutw.  530  ( On- 
yons  v.  Cheese) ;  24  E.  L.  &  Eq.  346 ;  8  Beav. 
361;  Martin  v.  Williams,  13  Johns.  (N.  Y.) 
268;  Howard  v.  Edgell,  17  Vt.  9;  Barrows 
v.  Capen,  11  Cush.  (Mass.)  37;  McNear  v. 
Bailey,  18  Me.  251;  Gates  v.  Treat,  25  Conn. 
71 ;  Fountain  v.  Harrington,  3  Harr.  (Del.) 
22;  State  v.  Stewart,  12  Gill  &  J.  (Md.)  456; 
Jessee  v.  Cater,  25  Ala.  351 ;  Thornton  v. 
Carson,  7  Cra.  (U.  S.)  599,  3  L.  Ed.  451.  See 
Humphreys  v.  Gardner,  11  Johns.  (N.  Y.)  61; 
Scott  v.  Barnes,  7  Pa.  134 ;  Leslie  v.  Leslie, 
50  N.  J.  Eq.  103,  24  Atl.  319;  Buntain  v. 
Curtis,  27  111.  374.  Where  it  exceeds  the 
terms  of  the  submission,  it  is  not  void,  where 
the  judge  on  confirmation  excludes  as  much 
as  is  incompetent ;  McCall  v.  McCall,  36  S. 
C.  80,  15  S.  E.  348 ;  but  it  is  so  where  dam- 
ages are  allowed  in  a  lump  sum,  in  which  are 
included  matters  not  submitted  to  them; 
Dodds  v.  Hakes,  114  N.  Y.  260,  21  N.  E.  398. 

It  must  be  final  and  certain;  Morse,  Arb. 
383;  5  Ad.  &  E.  147;  Barnet  v.  Gilson,  3 
S.  &  R.  (Pa.)  340;  Nichols  v.  Ins.  Co.,  22 
Wend.  (N.  Y.)  125;  Whitcomb  v.  Preston, 
13  Vt.  53;  Hanson  v.  Webber,  40  Me.  194; 
Hazen  v.  Addis,  14  N.  J.  L.  333 ;  Carter  v. 
Calvert,  4  Md.  Ch.  Dec.  199;  Bannister  v. 
Read,  1  Gilm.  (111.)  92;  Thomas  v.  Molier,  3 
Ohio  266 ;  Parker  v.  Eggleston,  5  Blackf.  (Ind.) 
128 ;  Montiflori  v.  Engels,  3  Cal.  431 ;  Lee  v. 
Onstott,  1  Ark.  206 ;  Ingraham  v.  Whitmore, 
75  111.  24;  Rhodes  v.  Hardy,  53  Miss.  587; 
Peck  v.  Wakely,  2  McCord  (S.  C.)  279;  Dyle 
v.  Rodgers,  5  Wheat.  (U.  S.)  394,  5  L.  Ed. 
117;  Perkins  v.  Giles,  50  N.  Y.  228;  Carson 
v.  Carter,  64  N.  C.  332  ;  Parker  v.  Parker,  103 
Mass.  167 ;  Burns  v.  Hendrix,  54  Ala.  78 ; 
and  see  Patterson  v.  Leavitt,  4  Conn.  50,  10 
Am.  Dec.  98;  Green  v.  Miller,  6  Johns.  (N. 
Y.)  39,  5  Am.  Dec.  184;  Towne  v.  Jaquith, 
6  Mass.  46,  4  Am.  Dec.  84 ;  conclusively  ad- 
judicating all  the  matters  submitted ;  Cal- 
vert v.  Carter,  6  Md.  135 ;  Cox  v.  Gent,  1  Mc- 
Mull.  (S.  C.)  302;  Pierson  v.  Norman,  2  Cal. 
599;  De  Groot  v.  U.  S.,  5  Wall.  (U.  S.)  419, 


18  L.  Ed.  700 ;  Frison  v.  De  Peiffer,  83  Me. 
71,  21  Atl.  746 ;  and  stating  the  decision  in 
such  language  as  to  leave  no  doubt  of  the 
arbitrator's  intention,  or  the  nature  and  ex- 
tent of  the  duties  imposed  by  it  on  tbe  par- 
ties ;  Pierson  v.  Norman,  2  Cal.  599,  and 
cases  above.  An  award  reserving  the  de- 
termination of  future  disputes ;  Calvert  v. 
Carter,  6  Md.  135 ;  an  award  directing  a 
bond  without  naming  a  penalty ;  5  Co.  77 ; 
Rolle,  Abr.  Arbitration  2,  4;  an  award  that 
one  shall  give  security  for  the  performance 
of  some  act  or  payment  of  money,  without 
specifying  the  kind  of  security,  is  invalid; 
Viner,  Abr.  Arbit.  2,  12 ;  Bacon,  Abr.  Arbit. 
E.  11,  and  cases  above.  So  is  one  that  finds 
that  a  party  is  entitled  to  receive  his  final 
payment  and  fails  to  ascertain  the  amount ; 
Flannery  v.  Sahagian,  134  N.  Y.  85,  31  N.  E. 
319. 

It  must  be  possible  to  be  performed,  and 
must  not  direct  anything  to  be  done  which 
is  contrary  to  law;  2  B.  &  Aid.  528;  Yea- 
mans  v.  Yeamans,  99  Mass.  585.  It  will  be 
void  if  it  direct  a  party  to  pay  a  sum  of  mon- 
ey at  a  day  past,  or  direct  him  to  commit 
a  trespass,  felony,  or  an  act  which  would 
subject  him  to  an  action ;  1  M.  &  W.  572 ; 
or  if  it  be  of  things  nugatory  and  offering 
no  advantage  to  either  of  the  parties ;  6  J. 
B.  Moore  713. 

It  must  be  without  palpable  or  apparent 
mistake;  Kleine  v.  Catara,  2  Gall.  61,  Fed. 
Cas.  No.  7,869;  3  B.  &  P.  371;  Pringle  v. 
McClenachan,  1  Dall.  (U.  S.)  487,  1  L.  Ed. 
235 ;  Boston  Water  Power  Co.  v.  Gray,  6 
Mete.  (Mass.)  131.  For  if  the  arbitrator  ac- 
knowledges that  he  made  a  mistake,  or  if  an 
error  (in  computation,  for  instance)  is  appar- 
ent on  the  face  of  the  award,  it  will  not  be 
good  ;  Taylor  v.  Sayre,  24  N.  J.  L.  647  ;  Good- 
ell  v.  .Raymond,  27  Vt.  241 ;  Roloson  v.  Car- 
son, 8  Md.  208 ;  Goodrich  v.  City  of  Marys- 
ville,  5  Cal.  430;  Spoor  v.  Tyzzer,  115  Mass. 
40;  Eisenmeyer  v.  Sauter,  77  111.  515 ;  Amer- 
ican Screw  Co.  v.  Sheldon,  12  R.  I.  324;  for, 
although  an  arbitrator  may  decide  contrary 
to  law,  yet  if  the  award  attempts  to  follow 
the  law,  but  fails  to  do  so  from  the  mistake 
of  the  arbitrator,  it  will  be  void ;  Kendrick 
v.  Tarbell,  26  Vt.  416;  Ennos  v.  Pratt,  id. 
630 ;  Burchell  v.  Marsh,  17  How.  (U.  S.)  344, 
15  L.  Ed.  96. 

A  parol  award  is  sufficient  notwithstanding 
the  submission  is  in  writing,  if  the  submis- 
sion does  not  in  terms  require  an  award  in 
writing ;  Marsh  v.  Packer,  20  Vt.  198 ;  an 
award  determined  by  lot  is  vitiated  thereby ; 
Luther  v.  Medbury,  18  R.  I.  141,  26  Atl.  37, 
49  Am.  St.  Rep.  753;  and  where  the  umpire 
was  chosen  by  lot  a  rule  to  set  it  aside  was 
made  absolute ;  9  B.  &  Cr.  624 ;  9  Ad.  &  El. 
699.' 

An  award  may  be  in  part  good  and  in  part 
void,  in  which  case  it  will  be  enforced  so  far 
as  valid,  if  the  good  part  is  separable  from 


ARBITRATION  AND  AWARD 


235 


ARBITRATION  AND  AWARD 


the  bad  ;  10  Mod.  204  ;  Cro.  Jac.  604  ;  Martin 
v.  Williams,  L3  Johns.  (X.  Y.i  264;  Orcutt  v. 
Butler,  4'2  Me.  83;  Barrows  v.  Capen,  11 
Cush.  (Mass.)  37;  Richards  v.  Brocken- 
brough's  Adm'r,  1  Rand.  (Va.i  449;  Taylor  v. 
Nicolson,  1  Hen.  &  M.  (Va.i  67;  Blown  v. 
Warnock,  5  Dana  (Ky.)  492;  Dalrymple  v. 
Whitingham,  26  Vt.  345;  Cones  v.  Vanosdol, 
4  Ind.  248;  Cromwell  v.  Owings,  6  Harr.  & 
J.  (Md.)  10;  Lyle  7.  Rodgers,  5  Wheat  (U. 
S.)  301,  5  L.  Ed.  117. 

As  to  form,  the  award  should,  in  general, 
follow  the  terms  of  the  submission,  which 
frequently  provides  the  time  and  manner  of 
making  and  publishing  the  award.  Jt  may 
be  by  parol  (oral  or  written),  or  by  deed;  3 
Bulstr.  311;  Marsh  v.  Packer,  20  Vt.  198.  It 
should  be  signed  by  all  the  arbitrators  In  the 
presence  of  each  other ;  Leavitt  v.  Inv.  Co., 
54  Fed.  439,  4  C.  C.  A.  425;  Kent.  v.  French. 
70  la.  187,  40  N.  W.  713.  See  Godfrey  v.  Kno- 
dle,  44  111.  App.  638  ;  Barr  v.  Chandler,  47  N.  J. 
Eq.  532,  20  Atl.  733 ;  contra,  Doyle  v.  Patter- 
son, 84  Va.  800,  6  S.  E.  138 ;  Hewitt  v.  Craig, 
86  Ky.  23,  5  S.  W.  280.  Where  the  submis- 
sion requires  the' concurrence  of  the  three 
arbitrators,  recovery  cannot  be  had  where 
but  two  sign,  though  the  third  says  it  is 
right,  but  refuses  to  sign ;  Weaver  v.  Powel, 
148  Pa.  372,  23  Atl.  1070.     See  Arbitrator. 

An  award  will  he  sustained  by  a  liberal 
construction,  ut  res  magis  valeat  quam  per- 
eat;  Dolph  v.  Clemens,  4  Wis.  1S1 ;  Rolo- 
son  v.  Carson,  8  Md.  208 ;  Allen  v.  Hiller,  8 
Ind.  310;  Haywood  v.  Harmon,  17  111.  477; 
Bemus  v.  Clark,  29  Pa.  251 ;   [Reed  Aw.  170. 

Effect  of.  An  award  is  a  final  and  con- 
elusive  judgment  between  the  parties  on  all 
the  matters  referred  by  the  submission; 
Reizenstein  v.  Hahn,  107  N.  C.  156,  12  S.  E. 
43;  Leonard  v.  Reservoir  Co.,  113  Mass.  235; 
Spencer  v.  Curtis,  57  Ind.  221 ;  Ford  v.  Bur- 
leigh, 60  N.  H.  278 ;  Evars  v.  Kamphaus,  59 
Pa.  379.  It  transfers  property  as  much  as 
the  verdict  of  a  jury,  and  will  prevent  the 
operation  of  the  statute  of  limitations;  3 
Bla.  Com.  16 ;  Hunt's  Lessee  v.  Guilford,  4 
Ohio  310 ;  Jackson  v.  Gager,  5  Cow.  (N.  Y.) 
383;  Davis  v.  Havard,  15  S.  &  R.  (Pa.)  166, 
16  Am.  Dec.  537.  See  Gray  v.  Reed.  65  Vt. 
178,  26  Atl.  52(1.  A  parol  award  following  a 
parol  submission  will  have  the  same  effect 
as  an  agreement  of  the  same  form  directly 
between  the  parties;  Houghton  v.  Houghton, 
37  Me.  72 ;  Wells  v.  Lain,  15  Wend.  (N.  Y.) 
99;  Goodell  v.  Raymond,  27  Vt.  211  ;  Smith 
v.  Douglass,  16  111.  34;  Smith  v.  Stewart.  5 
Ind.  220;    Martin  v.  Chapman,  1  Ala.   278; 

2  Coxe  369 ;    Davy  v.  Faw,  7  Cra.  (U.  S.)  171, 

3  L.  Ed.  305. 

The  right  of  real  property  cannot  thus 
pass  by  mere  award ;  but  no  doubt  an  arbi- 
trator may  award  a  conveyance  or  release 
of  land  and  require  deeds,  and  it  will  be  a 
breach  of  agreement  and  arbitration  bond 
to  refuse  compliance;  and  a  court  of  equity 


i  will    sometimes    enforce    this  lly;    3 

East  15  ;    Jones  v.  Mill  Corp., 
L48;    Calhoun's  Lessee  v.   Dunni:  . 
(Pa.)  120,  1  L.  LI.  767;    Akely  v 
Vt.  450;    Smith  v.  Bullock,    • 
v.  Addams,  15  Johns  (N.  v.i   L97 
Gratz,  4  Bawle  (Pa.)    c  I 

.240;    Mi  Near  v. 
Me.  251;    Jesse  v.  Cater,  28  Ala.  475  ;    Mur- 
ray  v.  Blackledge,  71  N.  C.  492;    Girdler  v. 
Carter,  47  X.  II.  305.    Where  there 
troversy  as  to  the  claims  embraced  within  a 
mortgage,  and  the  award   merely  flx« 
amount  due,  it  does  not  vest  the  legal  title 
to  the  mortgaged  property  in  the  morl  - 
Collier  v.  White,  97  Ala.  615,  12  South.  385. 

Arbitrament  and  award  may  be  regularly 
pleaded  at  common  law  or  equity  to  an 
action  concerning  the  same  Bubject-matter, 
and  will  bar  the  action;  Brazil]  v.  Isham, 
12  N.  Y.  9;  Crooker  v.  Buck,  11  Me.  355. 
To  an  action  on  the  award  at  common  law, 
in  general,  nothing  can  be  pleaded  ddinrs 
the  award ;  not  even  fraud ;  Owen  v. 
urn,  23  Barb.  (N.  Y.)  187;  Shepherd  v. 
Briggs,  28  Vt  81;  Woodrow  v.  O'Conner, 
id.  77(1;  contra,  Strong  v.  Strong,  9  Cush. 
(Mass.)  560.  Where  an  action  has  been  re- 
ferred under  rule  of  court  and  the  reference 
fails,  the  action  proceeds. 

Enforcement  of.  An  award  may  be  en- 
forced by  an  action  at  law,  which  Is  the 
only  remedy  for  disobedience  when  the  sub- 
mission is  not  made  a  rule  of  court,  and  no 
statute  provides  a  special  mode  of  enforce- 
ment; 5  B.  &  Aid.  507;  4  B.  &  C.  103;  3 
C.  B.  745.  Assumpsit  lies  when  the  submis- 
sion is  not  under  seal;  Piersons  v.  Hobbes, 
33  N.  II.  27;  and  debt  on  an  award  of  mon- 
ey and  on  an  arbitration  bond :  Nolte  v. 
Lowe,  18  111.  437;  covenant  where  the  sub- 
mission is  by  deed  for  breach  of  any  part  of 
the  award,  and  case  for  the  non-perform- 
ance of  the  duty  awarded.  Equity  will  en- 
force specific  performance  when  all  remedy 
fails  at  common  law  ;  Com.  Dig. 
2  K;  Story,  Eq.  Jur.  §  1458;  2  Hare  198; 
Bouck  v.  Wilber,  4  Johns.  Ch.  (N.  Y.I  405; 
Ballance  v.  Underbill,  3  Seam.  (IU.)  453;  3 
P.  Wins.  137.  But  see  1  T.  &  R.  187  :  B 
846.  An  award  must  he  sued  upon  only  he- 
cause  the  arbitrator  is  not  rested  with  power 
to  enforce  his  decrees  by  execution,  which  is 
the  end  of  the  law;  Collins  v.  Oliver,  4 
Humph.   (Tenn.i  439. 

An  award  under  a  rule  of  court  may  he 
enforced  by  the  court  Issuing  execution  upon 
it  as  if  it  were  a  verdict  of  a  jury,  or  by 
attachment  for  contempt;  7  East  607.  By 
the  various  state  statutes  regulating  arbi- 
trations, awards,  where  submission  Is  made 
before  a  magistrate,  may  be  enforced  and 
judgment  rendered   thereon. 

Amendment  and  setting  aside.  A  court 
has  no  power  to  alter  or  amend  an  award  ; 
Jackson  v.  Todd.  25  N.  J.  L.  130;  Jarvis  y. 


ARBITRATION  AND  AWARD 


236 


ARBITRATION  AND  AWARD 


Water  Co.,  5  Cal.  170 ;  Brazill  v.  Isham,  12 
N.  Y.  9;  Crooker  v.  Buck,  41  Me.  355 ;  Smith 
v.  Kron,  109  N.  C.  103,  13  S.  E.  839;  but 
may  recommit  to  the  referee  in  some  cases ; 
Swift  v.  Faris,  11  Tex.  18 ;  18  Can.  S.  C  R. 
338.  The  court  has  no  general  supervisory 
power  Aver  an  award  and,  if  arbitrators 
keep  within  their  jurisdiction,  it  will  not 
be  set  aside  for  error  of  judgment  either  of 
law  or  facts,  but  it  may  for  palpable  error 
of  fact  or  miscalculation  of  figures  or  of 
law  when  it  appears  on  its  face;  Fudickar 
v.  Ins.  Co.,  02  N.  Y.  392. 

"An  arbitration  partakes  of  judicial  pro- 
ceedings," and  the  award  is  regarded  with 
great  respect  by  the  courts  as  the  decision 
of  persons  chosen  by  the  parties  to  settle 
their  differences;  but  it  can  hardly  be  con- 
sidered of  equal  dignity  with  the  judgment 
of  a  court,  which  speaks  by  force  and  power 
of  the  law ;  while  an  award  speaks  by  con- 
sent and  contract  of  the  parties ;  Shively  v. 
Knobloc-k,  8  Ind.  App.  433,  35  N.  E.  1028.  A 
court  will  not  revise  an  award  for  mere  errors 
of  judgment;  Offut  v.  Proctor,  4  Bibb  (Ky.) 
252;  Vaughn  v.  Graham,  11  Mo.  576;  Ches- 
ley  v.  Chesley,  10  N.  H.  327;  and  miscon- 
duct or  misbehavior  of  arbitrators  in  a  stat- 
utory arbitration  must  be  to  do  an  inten- 
tional wrong;  Smith  v.  Cutler,  10  Wend. 
(N.  Y.)  5S9,  25  Am.  Dec.  580;  Vaughn  v. 
Graham,  11  Mo.  576. 

It  is  not  essential  to  an  arbitration  that 
it  should  adjust  all  matters  in  controversy ; 
an  award  determining  a  single  one  of  several 
may  be  conclusive  so  far;  Pearce  v.  Mc- 
Intyre,  29  Mo.  423. 

An  award  will  not  be  disturbed  except 
for  very  cogent  reasons.  It  will  be  set  aside 
for  misconduct,  corruption,  or  irregularity 
of  the  arbitrator,  which  has  or  may  have 
injured  one  of  the  parties;  5  B.  &  Ad.  488; 
Jenkins  v.  Liston,  13  Gratt.  (Va.)  535;  Payne 
v.  Metz,  14  Tex.  56;  Walls  v.  Wilson,  2S  Pa. 
514;  Cutting  v.  Carter,  29  Vt.  72;  it  will 
not  be  set  aside  because  one  of  the  arbitra- 
tors was  a  relative ;  McGregor  v.  Sprott,  59 
Hun  617,  13  N.  Y.  Supp.  191 ;  so  where  one, 
after  publishing  his  award,  admits  that  it 
had  been  improperly  obtained  from  him ; 
[1891]  1  Ch.  55S;  it  will  be  set  aside  for 
error  in  fact,  or  in  attempting  to  follow  the 
law,  apparent  on  the  face  of  the  award ;  see 
supra;  Arbitrator  ;  for  uncertainty  or  in- 
consistency ;  for  an  exceeding  of  his  author- 
ity by  the  arbitrator;  Shearer  v.  Handy,  22 
Pick.  (Mass.)  417;  Stewart  v.  Ahrenfeldt,  4 
Denio  (N.  Y.)  191 ;  where  it  is  made  solely 
at  the  direction  of  one  of  the  parties  and  not 
upon  the  arbitrator's  own  judgment;  Hart- 
ford Fire  Ins.  Co.  v.  Mercantile  Co.,  44  Fed. 
151,  11  L.  R.  A.  623;  when  it  is  not  final 
and  conclusive,  without  reserve ;  when  It  is 
a  nullity;  when  a  party  or  witness  has  been 
at  fault,  or  has  made  a  mistake;  or  when 
the  arbitrator  acknowledges  that  he  has 
made  a  mistake  or  error  in  his  decision. 


Where  arbitrators  have  once  made  ar>. 
award  they  are  functus  officio  and  cannot 
afterwards  make  a  second  award,  though 
the  first  was  void  because  of  defects ;  Flan- 
nery  v.  Sahagian,  134  N.  Y.  85,  31  N.  E.  319 ; 
Herbst  v.  Hagenaers,  137  N.  Y.  290,  33  N.  E. 
315. 

Equity  has  jurisdiction  to  set  aside  an 
award,  on  any  of  the  enumerated  grounds, 
when  the  submission  cannot  be  made  a  rule 
of  a  common-law  court.  As  to  the  circum- 
stances under  which  awards  may  be  ex- 
amined in  equity,  see  1  Raithby's  Vernon 
158,  note  (1),  where  many  English  cases  are 
collected. 

In  general,  in  awards  under  statutory  pro- 
visions, as  well  as  in  those  under  rules  of 
court,  questions  of  law  may  be  reserved  for 
the  opinion  of  the  court,  and  facts  and  evi- 
dence reported  for  their  opinion  and  de- 
cision. 

ARBITRIUM  (Lat.).  Decision;  award; 
judgment. 

For  some  cases  the  law  does  not  prescribe  an  ex- 
act rule,  but  leaves  them  to  the  judgment  of  sound 
men ;  or  in  the  language  of  Grotius,  lex  non  exacte 
deflnitj  sed  arbitrio  boni  viri  permittit ;  1  Bla.  Com. 
61.  The  decision  of  an  arbiter  is  arbitrium,  as  the 
etymology  indicates;  and  the  word  denotes,  in  the 
passage  cited,  the  decision  of  a  man  of  good  judg- 
ment who  is  not  controlled  by  technical  rules  of 
law,  but  is  at  liberty  to  adapt  the  general  princi- 
ples of  justice  to  the  peculiar  circumstances  of  the 
case. 

ARBOR  (Lat).  A  tree;  a  plant;  some- 
thing larger  than  an  herb;  a  general  term 
including  vines,  osiers,  and  even  reeds.  The 
mast  of  a  ship.  Brissonius.  Timber.  Ains- 
worth;    Calviuus,  Lex. 

Arbor  civilis.  A  genealogical  tree.  Coke, 
Inst. 

A  common  form  of  showing  genealogies  is  by 
means  of  a  tree  representing  the  different  branches 
of  the  family.  Many  of  the  terms  in  the  law  of  de- 
scent are  figurative,  and  derived  hence.  Such  a  tree 
is  called,  also,  arbor  consanguinitatis. 

ARCARIUS  (Lat.  area).  A  treasurer; 
one  who  keeps  the  public  money.  Spelman, 
Gloss. 

ARCHAI0N0MIA.  The  name  of  a  collec- 
tion of  Saxon  laws  published  during  the 
reign  of  Queen  Elizabeth,  in  the  Saxon  lan- 
guage, with  a  Latin  version  by  Lambard. 
Dr.  Wilkins  enlarged  this  collection  in  his 
work  entitled  Leges  Anglo- Saxonies;,  contain- 
ing all  the  Saxon  laws  extant,  together  with 
those  ascribed  to  Edward  the  Confessor,  in 
Latin;  those  of  William  the  Conqueror,  in 
Norman  and  Latin,  and  of  Henry  I.,  Ste- 
phen, and  Henry  II.,  in  Latin. 

ARCHBISHOP.  The  chief  of  the  clergy 
of  a  whole  province. 

He  has  the  inspection  of  the  bishops  of  that  prov- 
ince, as  well  as  of  the  inferior  clergy,  and  may  de- 
prive them  on  notorious  cause.  The  archbishop  has 
also  his  own  diocese,  in  which  he  exercises  episcopal 
jurisdiction,  as  in  his  province  he  exercises  archi- 
episcopal  authority;  1  Bla.  Com.  380;  1  Ld.  Raym. 
541.    In  England  he  Is  addressed  as  Most  Reverend. 


ARCHDEACON 


237      ARGUMENTUM  AB  INCO.WENIENTI 


ARCHDEACON.  A  ministerial  officer  sub- 
ordinate to  the  bishop. 

In  the  primitive  church,  the  archdeacons  were 
employed  by  the  bishop  in  the  more  servile  duties  of 
collecting  and  distributing  alms  and  offerings. 
Afterwards  they  became,  in  effect,  "eyes  to  the 
overseers  of  the  Church  ;"    Cowell. 

His  jurisdiction  is  ecclesiastical,  and  immediately 
subordinate  to  that  of  the  bishop  throughout  the 
whole  or  a  part  of  the  diocese.  He  is  a  ministerial 
officer ;  1  Bla.  Com.  383.  He  is  addressed  as  Ven- 
erable. 

ARCHDEACON'S  COURT.  The  lowest 
court  of  ecclesiastical  jurisdiction  in  Eng- 
land. Originally  the  archdeacon  held  a  court 
as  deputy  of  the  bishop.  Early  in  the  12th 
century  the  archdeacons  possessed  them- 
selves of  a  customary  jurisdiction.  An  ap- 
peal lay  to  the  Consistory  Court.  Rept.  Eccl. 
Com.  (1883)  25. 

ARCHES  COURT.     See  Court  of  Abches. 

ARCHIVES.  The  Rolls;  any  place  where 
ancient  records,  charters,  and  evidences  are 
kept.  In  libraries,  the  private  depositary. 
Cowell ;    Spelman,  Gloss. 

The  records  need  not  be  ancient  to  constitute  the 
place  of  keeping  them  the  Archives. 

ARCHIVIST.  One  to  whose  care  the 
archives   have   been  confided. 

ARCTA  ET  SALVA  CUSTODIA  (Lat). 
In  safe  and  close  custody  or  keeping. 

When  a  defendant  is  arrested  on  a  capias  ad  sat- 
isfaciendum (ca.  sa.),  he  is  to  be  kept  in  arcta  et 
salva   custodia;    3   Bla.    Com.   415. 

AREA.  An  enclosed  yard  or  opening  in 
a  house ;  an  open  place  adjoining  to  a  house. 
1  Chit.  Pr.  176. 

ARENTARE    (Lat).     To  rent;  to  let  out 
at  a  certain  rent.    Cowell. 
Arentatio.     A  renting. 

ARGENTARII  (Lat.  argentum).  Money- 
lenders. 

Called,  also,  nummular ii  (from  nummus,  coin) 
tnensarii  (lenders  by  the  month).  They  were  so 
called  whether  living  in  Rome  or  in  the  country 
towns,  and  had  their  shops  or  tables  in  the  forum. 
Argentarius  is  the  singular.  Argentarium  denotes 
the  instrument  of  the  loan,  approaching  in  sense  to 
our  note  or  bond. 

Argentarius  miles  was  the  porter  who  car- 
ried the  money  from  the  lower  to  the  upper 
treasury  to  be  tested.     Spelman,  Gloss. 

ARGENTUM  ALBUM  (Lat).  Unstamped 
silver;     bullion.      Spelman,    Gloss.;     Cowell. 

ARGENTUM  DEI  (Lat).  God's  money; 
God's  penny ;  money  given  as  earnest  in 
making  a  bargain.     Cowell. 

ARGUMENT.  An  effort  to  establish  belief 
by  a  course  of  reasoning. 

See  33  Amer.  L.  Rev.  476 ;  State  v.  Burns, 
119  Iowa,  (]()?>,  94  N.  W.  239;  Hopkins  v. 
Hopkins,  132  N.  C.  25,  43  S.  E.  506. 

ARGUMENTATIVE.  By  way  ot  reason- 
ing. 

A  plea  must  be  (among  other  things)  direct  and 
positive,  and  not  argumentative;  3  Bla.  Com.  30S; 
Steph.   PI.    Andrew's  ed.    §   201. 


ARGUMENTUM      AB      INCONVENIENT!. 
An  argument  arising  from  the  lnco 
which  the  opposite  construction  of   thi 
would  create. 

It  is  to  have  effect  only  In  a  case  where  the  law 
Is  doubtful:  where  the  law  Is  certain,  such  an 
argument  Is  of  no  force.  Bacon,  Abr.  Baron  and 
feme  11. 

ARIBANNUM.  A  fine  for  not  setting  out 
to  join  the  army  in  obedience  to  the  sum- 
mons of  the  king. 

A  Rl  MANN  I  (Lat.).  The  |  is  of  lands 

holdeu  or  derived  from  their  lords.  Clients 
joined  to  some  lord  for  protection.  By  some, 
said  to  be  soldiers  holding  lands  from  a  lord; 
but  the  term  is  also  applied  to  women  and 
slaves.     Spelman,  Gloss. 

ARISE.  To  come  into  existence  or  action. 
A  case  arising  in  the  land  or  naval  forces  Is 
a  case  proceeding,  issuing  or*  springing  from 
acts,  in  violation  of  the  laws  and  regulations, 
committed  while  in  the  forces  or  service.  In 
re  Bogart,  2  Sawy.  396,  Fed.  Cas.  No.  1,596. 

ARISTOCRACY.  A  government  in  which 
a  class  of  men  rules  supreme. 

Aristotle  classified  governments  according  to  the 
person  or  persons  in  whom  the  supreme  power  is 
vested:  In  monarchies  or  kingdoms,  in  which  one 
rules  supreme  ;  in  aristocracies,  in  which  a  class  of 
men  rules  supreme  ;  and  in  democracies,  In  which 
the  people  at  large,  the  multitude,  rule.  The  term 
aristocracy  is  derived  from  the  Greek  word  aptaroq, 
which,  although  finally  treated  as  the  superlative  of 
aya(J6gf  good,  originally  meant  the  strongest,  the 
most  powerful;  and  in  the  compound  term  aristoc- 
racy it  meant  those  who  wielded  the  greatest  power 
and  had  the  greatest  influence,— the  privileged  ones. 
The  aristocracies  in  ancient  Greece  were,  in  many 
cases,  governments  arrogated  by  violence.  If  the 
number  of  ruling  aristocrats  was  very  small,  the 
government  was  called  an  oligarchy.  Aristotle  says 
that  in  democracies  the  "demagogues  lead  the  people 
to  place  themselves  above  the  laws,  and  divide  the 
people,  by  constantly  speaking  against  the  rich;  and 
in  oligarchies  the  rulers  always  speak  in  the  interest 
of  the  rich.  At  present,"  he  says,  "the  rulers,  in 
some  oligarchies,  take  an  oath,  'And  I  will  be  hostile 
to  the  people,  and  advise,  as  much  as  is  in  my  pow- 
er, what  may  be  injurious  to  them.'  "  (Politics,  v. 
ch.  9.)  There  are  circumstances  which  may  make  an 
aristocracy  unavoidable;  but  it  has  always  this  in- 
herent deficiency,  that  the  body  of  aristocrats,  being 
set  apart  from  the  people  indeed,  yet  not  sufficiently 
so,  as  the  monarch  is  (who,  besides,  being  but  one, 
must  needs  rely  on  the  classes  beneath  him),  shows 
itself  severe  and  harsh  so  soon  as  the  people  become 
a  substantial  portion  of  the  community.  The  strug- 
gle between  the  aristocratic  and  the  democratic  ele- 
ment is  a  prominent  feature  of  the  middle  ages ; 
and  at  a  later  period  It  Is  equally  remarkable  that 
the  crown,  in  almost  every  country  of  the  European 
continent,  waged  war,  generally  with  the  assistance 
of  the  commonalty,  with  the  privileged  class,  or  ar- 
istocracy. The  real  aristocracy  is  that  type  of  gov- 
ernment which  has  nearly  entirely  vanished  from 
our  cis-Caucasian  race ;  although  the  aristocratic 
element  Is  found,  like  the  democratic  element,  in 
various  degrees,  in  most  of  the  existing  govern- 
ments. The  term  aristocracy  Is  at  present  fre- 
quently used  for  the  body  of  privileged  persons  in 
the  government  of  any  institution,— for  instance,  in 
the  church.  In  the  first  French  Revolution,  Aristo- 
crat came  to  mean  any  person  not  belonging  to  the 
levellers,  and  whom  the  latter  desired  to  pull  down. 
The  modern  French  communists  use  the  slang  term 
Aristo  for  aristocrat.  The  most  complete  and  con- 
sistently   developed   aristocracy   in  history  was   the 


ARISTOCRACY 


238 


ARM  OF  THE  SEA 


Republic  of  Venice, — a  government  considered  by 
many  early  publicists  as  a  model:  it  Illustrated, 
however,  in  an  eminent  degree,  the  fear  and  conse- 
quent severity  Inherent  in  aristocracies.  See  Gov- 
ernment;    Absolutism;      Monarchy. 

ARISTO-DEMOCRACY.  A  form  of  gov- 
ernment where  the  power  is  divided  be- 
tween the  more  powerful  men  of  the  nation 
»nd  the  people. 

ARIZONA.  One  of  the  states  of  the  Ameri- 
can Union. 

This  region  was  first  visited  by  the  Spanish  in 
1526,  and  was  afterwards  explored  under  the  direc- 
tion of  the  viceroy  of  Mexico  in  1540;  nothing  was 
done,  however,  towards  settling  the  country  until 
the  year  15S0,  when  a  military  post  was  established 
by  the  Spanish  on  the  site  of  the  present  city  of 
Tucson.  Under  the  untiring  efforts  of  the  Jesuits, 
an  unbroken  line  of  settlements  sprung  up  from 
Tucson  to  the  Sonora  line,  the  northern  boundary 
of  Mexico,  a  distance  of  about  one  hundred  miles  ; 
but  owing  to  the  frequent  attacks  of  the  Indians, 
and  the  Mexican  revolution  of  1821,  these  settlements 
were  abandoned.  The  first  United  States  settlers 
were  persons  on  their  way  to  California  in  1819. 
The  United  States  acquired,  by  the  treaty  of  Gua- 
dalupe Hidalgo,  Feb.  2,  1848,  a  large  extent  of  coun- 
try from  Mexico,  including  California  and  the  ad- 
jacent territories,  and  by  the  Gadsden  purchase, 
Dec.  30,  1853,  another  large  tract  south  of  the  for- 
mer. Until  1863,  the  territory  of  New  Mexico  in- 
cluded Arizona  and  also  about  12,225  acres,,  which 
were  detached  and  included  in  Nevada.  Arizona 
was  organized  as  a  separate  territory  by  the  act  of 
congress  of  Feb.  24,  1863,  U.  S.  Stat,  at  Large,  664. 
By  this  act,  the  territory  embraced  "all  that  part 
of  the  territory  of  New  Mexico  situated  west  of  a 
line  running  due  sotith,  from  the  point  where  the 
southwest  corner  of  the  territory  of  Colorado  joins 
the  northern  boundary  of  the  territory  of  New  Mex- 
ico, to  the  southern  boundary  of  the  territory  of 
New  Mexico."  The  frame  of  government  was  sub- 
stantially the  same  as  that  of  New  Mexico,  and  the 
laws  of  New  Mexico  were  substantially  extended  to 
Arizona. 

The  Enabling  Act  for  its  admission  to  the  Union 
was  passed  by  Congress  June  20,  1910.  On  August 
21,  1911,  the  joint  resolution  of  Congress  for  its  ad- 
mission was  passed,  to  take  effect  upon  Proclama- 
tion by  the  President  that  certain  conditions  had 
been  complied  with.  The  Proclamation  was  made 
February  14,  1912.  Arizona  became  a  state  and 
adopted  the  constitution  proposed  for  it  by  the  con- 
stitutional convention  held  in  the  fall  of  1910.  The 
constitution  was  amended  in  1912  by  providing  for 
the  recall  of  public  officers  and  granting  to  each 
municipal  corporation  within  the  state  the  right  to 
engage  in  industrial  pursuits,  and  providing  for 
woman   suffrage. 

ARKANSAS.  One  of  the  United  States  of 
America ;  being  the  twelfth  admitted  to  the 
Union. 

It  was  formed  of  a  part  of  the  Louisiana  Territory, 
purchased  of  France  by,  the  United  States,  by  treaty 
of  April  30,  1803,  and  from  that  time  until  1812  it 
formed  part  of  the  Louisiana  Territory;  from  1812 
to  1819  It  was  part  of  the  Missouri  Territory.  By 
act  of  congress  of  March  2,  1819,  a  separate  terri- 
torial government  was  established  for  Arkansas; 
3  Stat.  L.  493.  It  was  admitted  to  the  Union  by  act 
of  congress  of  June,  1836,  and  the  first  constitution 
of  the  state  was  adopted  on  the  30th  January,  1836. 
Section  16,  article  5,  amended  February  10,  1913, 
which  provides  for  a  sixty  day  session  of  Legisla- 
ture ;  section  1,  article  5,  amended,  providing  for 
the  initiative  and  referendum,  February  19,  1909. 

ARLES.     Earnest. 

Used  in  Yorkshire  in  the  phrase  Aries-penny. 
Cowell.  In  Scotland  it  has  the  same  signification. 
Bell,   Diet.     See  Earnest. 


ARM  OF  THESEA.  A  portion  of  the  sea 
projecting  inland,  in  which  the  tide  ebbs  and 
Hows. 

It  includes  bays,  roads,  creeks,  coves, 
ports,  and  rivers  where  the  water  flows  and 
reflows.  An  arm  of  the  sea  is  considered  as 
extending  as  far  into  the  interior  of  a  coun- 
try as  the  water  of  fresh  rivers  is  propelled 
backward  by  the  tide;  Ang.  Tide  Wat.  (2d 
ed.)  73;  Peyroux  v.  Howard,  7  Pet.  (U.  S.) 
324,  8  L.  Ed.  700;  2  Dougl.  441;  G  CI.  &  F. 
G28;  Tinicum  Fishing  Co.  v.  Cart,  61  Pa.  21, 
100  Am.  Dec.  597;  Olc.  Adm.  18.  Arms  of 
the  sea,  so  closely  embraced  by  land  that  a 
man  standing  on  one  shore  can  reasonably 
discern  with  the  naked  eye  objects  and  what 
is  done  on  the  opposite  shore,  are  within 
county  limits ;  Bish.  Cr.  L.  §  146 ;  2  East,  P. 
C.  805;  Russ.  &  R.  243.  Lord  Coke  said 
(Owen  122)  that  the  admiral  has  no  juris- 
diction when  a  man  may  see  from  one  side 
to  another.  This  was  followed  by  Cockburn, 
C.  J.,  in  L.  R.  2  Ex.  164,  1GS.  See  Creek; 
Navigable  Waters  ;  River  ;  Sea  ;  Fauces 
Terr^e  ;   Territorial  Waters  ;   Admiralty. 

ARMED.  Furnished  with  weapons  of 
offence  or  defence ;  furnished  with  the  means 
of  security  or  protection.     Webster's  Diet. 

The  fact  that  there  was  on  board  a  vessel 
but  one  musket,  a  few  ounces  of  powder, 
and  a  few  balls,  would  not  make  her  an 
armed  vessel ;  Murray  v.  The  Charming  Bet- 
sy, 2  Cra.   (U.  S.)    121,  2  L.  Ed.  208. 

ARMED  NEUTRALITY.  An  attitude  of 
neutrality  between  belligerents  which  the 
neutral  state  is  prepared  to  maintain  by 
armed  force  if  necessary. 

ARMED  PEACE.  A  situation  in  which 
two  or  more  nations,  while  actually  at  peace 
with  each  other,  are  armed  for  possible  or 
probable  hostilities. 

ARMIGER  (Lat.).  An  armor-bearer;  an 
esquire.  A  title  of  dignity  belonging  to  gen- 
tlemen authorized  to  bear  arms.  Kennett, 
Paroch.  Antiq. ;    Cowell. 

In  its  earlier  meaning,  a  servant  who  car- 
ried the  arms  of  a  knight.     Spelman,  Gloss. 

A  tenant  by  scutage ;  a  servant  or  valet ; 
applied,  also  to  the  higher  servants  in  con- 
vents.    Spelman,  Gloss ;  Wishaw. 

ARMISTICE.  An  agreement  between  bel- 
ligerent forces  for  a  temporary  cessation  of 
hostilities.  The  condition  of  war  between 
the  parties  continues  in  all  other  respects 
and  produces  its  usual  legal  effects. 

An  armistice  differs  from  a  mere  "suspen- 
sion of  arms"  (q.  v.)  in  that  the  latter  is 
concluded  for  very  brief  periods  and  for  local 
military  purposes  only,  whereas  an  armistice 
not  only  covers  a  longer  period,  but  is 
agreed  upon  for  political  purposes.  It  is 
said  to  be  general  if  it  relates  to  the  whole 
area  of  the  war,  and  partial  if  it  relates  to 
only  a  portion  of  that  area.  Partial  armis- 
tices are  sometimes  called  truces  (g.  v.)   but 


ARMISTICE 


239 


ARMS 


there  Is  no  hard  and  fast  distinction  be- 
tween armistices  and  truces.  Arts.  :;i">-41  of 
IV  Hague  Conf.  1907  lay  down  certain  in- 
ternational rules  on  the  subject  of  armistic- 
es, their  duration,  their  general  or  local 
character,  the  necessary  notification,  and  the 
consequences  of  a  violation  of  the  armistice. 
As  these  rules  do  not  cover  the  whole  field, 
they  need  to  be  supplemented  by  customary 
law.     2  Opp.  290-2!  »:•. 

ARMS.  Anything  that  a  man  wears  for 
his  defence,  or  tikes  in  his  hands,  or  uses 
in  his  anger,  to  cast  at  or  strike  at  another. 
Co.  Litt.  101  o,  102a;  Cromp.  Just.  P.  65; 
Cunning,   Diet. 

The  constitution  of  the  United  States, 
Amend,  art  2,  declares  that,  "a  well-regulat- 
ed militia  being  necessary  to  the  security  of 
a  free  state,  the  right  of  the  people  to  keep 
and  bear  arms  shall  not  be  infringed."  This 
is  said  to  be  not  a  right  granted  by  the  con- 
stitution, and  not  dependent  upon  that  in- 
strument for  its  existence.  The  amendment 
means  no  more  than  that  this  right  shall  not 
be  infringed  by  congress ;  it  restricts  the 
powers  of  the  national  government,  leaving 
all  matters  of  police  regulations,  for  the  pro- 
tection of  the  people,  to  the  states ;  U.  S.  v. 
Cruikshank,  92  U.  S.  553,  23  L.  Ed.  588. 

An  act  forbidding  the  carrying  of  pistols, 
dirks,  etc.,  is  not  repugnant  to  this  article ; 
the  "arms"  referred  to  are  the  arms  of  a 
soldier,  etc. ;  English  v.  State,  35  Tex.  473, 
14  Am.  Rep.  374.  A  statute  prohibiting  the 
wearing  of  concealed  deadly  weapons  is  con- 
stitutional ;  Wright  v.  Com.,  77  Pa.  470;  An- 
drews v.  State,  3  Heisk.  (Tenn.)  105,  8  Am. 
Rep.  8;  Hill  v.  State,  53  Ga.  472;  Fife  v. 
State,  31  Ark.  455,  25  Am.  Rep.  550;  Walls 
v.  State,  7  Blackf.  (Ind.)  572;  Owen  v. 
State,  31  Ala.  387;  contra,  Bliss  v.  Com.,  2 
Litt.  (Ky.)  90,  13  Am.  Dec.  251.  See  Story, 
Const.  5th  ed.  §  1895;  Rawle,  Const.  125. 

A  provision  in  a  state  bill  of  rights  that 
"the  people  have  a  right  to  bear  arms  for 
their  defense  and  security"  is  a  limitation 
on  legislative  power  to  enact  laws  prohibit- 
ing the  bearing  of  arms  in  the  militia,  or 
any  other  military  organization  provided  for 
by  law,  but  it  is  not  a  limitation  on  legisla- 
tive power  to  prohibit  and  punish  the  pro- 
miscuous carrying  of  arms  or  other  deadly 
weapons;  City  of  Salina  v.  Blaksley,  72 
Kan.  230,  83  Pac.  019,  3  L.  R.  A.  (N.  S.)  108, 
115  Am.  St.  Rep.  190.  This  right  is  not  vio- 
lated by  a  statute  prohibiting  unauthorized 
bodies  of  men  to  associate  together  as  a  mil- 
itary organization,  or  to  drill  and  parade 
with  arms  in  cities  and  towns ;  Com.  v. 
Murphy,  100  Mass.  171,  44  N.  E.  138,  32  L. 
R.  A.  000. 

One  who  carries  a  pistol  concealed  in  a 
satchel  supported  and  carried  by  a  strap 
over  his  shoulder,  is  guilty  of  carrying  a 
concealed  weapon  about  his  person,  although 
the  satchel  is  locked  and  the  key  is  in  his 


pocket;    Warren   v.    State,    94    Ala.    79.    10 
South.   838;    Boles  v.    State,  80  Ga.    '_■ 
S.   B.  301.     The  fact  that  one  carri   - 
cealed  weapon  for  the  purpose  of 
does  not  excuse  his  act;  State  v.  I>i\   a.   114 
N.  C.  850,  19  s.  B.   364;  nor  does  the  fact 
that  he  has  repaired  it  and  is  returning  it 
in   his   pocket;    Strahan   v.    Btal 
347,  8  South.  844:  contra,  state  v.  Roberts, 
39  Mo.  App.  47.     The  carrying  of  a  pistol  in 
the  pocket  for  target  practice  does  not  con- 
stitute the  offence  of  carrying   a 
weapon;   State  v.    Murray.  ■".'.•   Mo.  App.    l'JT. 
See  Dangerous  Weapon;  Weapon. 

Signs  of  arms,  or  drawings,  painted  on 
shields,  banners,  and  the  like.  Heraldic 
bearings. 

The  arms  of  the  United  States  are  de- 
scribed in  the  resolution  of  congress  of  June 
20,    17S2. 

ARMY.  A  large  force  of  armed  men  de- 
signed and  organized  for  military  service  on 
land. 

The  term  "army"  or  "armies"  has  never 
been  used  by  congress  to  include  the  navy  or 
marines;  In  re  Bailey,  2  Sawy.  205,  Fed. 
Cas.  No.  728. 

See  Articles  of  War  ;  Military  Law  ;  Mar- 
tial Law;  Courts-Martial;  Rank;  Regu- 
lations. 

ARPENNUS.  A  measure  of  land  of  un- 
certain amount.  It  was  called  arpent  also. 
Spelman,   Gloss. ;   Cowell. 

In  French  Law.  A  measure  of  different 
amount  in  each  of  the  sixty-four  provinces. 
Guyot,  Repert.     Arpcntcur. 

The  measure  was  adopted  in  Louisiana; 
Strother  v.  Lucas,  6  Pet.  (U.  S.)  703,  8  L. 
Ed.  573. 

ARPENT.  A  quantity  of  land  containing 
a  French  acre.     4  Hall,  L.  J.   518. 

ARPENTAT0R.  A  measurer  or  surveyor 
of  land. 

ARRA.     See  Abrh,e. 

ARRAIGN.  To  call  a  prisoner  to  the  bar 
of  the  court  to  answer  the  matter  charged 
in  the  indictment.  2  Hale,  PL  Cr.  216.  To 
set  in  order.  An  assize  may  be  arraigned. 
Littleton,  §  242 ;  3  Mod.  273;  Termes  de  la 
Ley;  Cowell. 

ARRAIGNMENT.  Calling  the  defendant 
to  the  bar  of  the  court,  to  answer  the  accu- 
sation contained  in  the  indictment. 

The  first  step  in  the  proceeding  consists 

in  calling  the  defendant  to  the  bar  by  his 
name,  and  commanding  him  to  hold  up  his 
hand. 

This  Is  done  for  the  purpose  of  completely  Iden- 
tifying the  prisoner  as  the  person  named  in  the 
indictment.  The  holding  up  his  hand  is  not,  how- 
ever, indispensable  ;  for  if  the  prisoner  should  re- 
fuse to  do  so,  he  may  be  identified  by  any  admission 
that  he  is  the  person  Intended;  1  W.  Bla.  33.  See 
Archb.  Cr.  PI.  128. 


ARRAIGNMENT 


240 


ARRANGEMENT 


The  second  step  is  the  reading  the  indict- 
ment to  the  accused  person. 

This  is  done  to  enable  him  fully  to  understand  the 
charge  to  be  produced  against  him.  The  mode  in 
which  it  is  read  is,  after  saying,  "A  B,  hold  up  your 
hand,"  to  proceed,  "you  stand  indicted  by  the  name 
of  A  B,  late  of,  etc.,  for  that  you,  on,  etc.,"  and 
then  go  through  the  whole  of  the  indictment. 

The  third  step  is  to  ask  the  prisoner, 
"How  say  you  (A  B),  are  you  guilty,  or  not 
guilty? " 

Upon  this,  if  the  prisoner  confesses  the  charge, 
aod  it  appears  to  the  satisfaction  of  the  judge  that 
h«.'  rightly  comprehends  the  effect  of  his  plea,  the 
confession  is  recorded,  and  nothing  further  is  done 
till  judgment.  If,  on  the  contrary,  he  answers, 
"Not  guilty,"  that  plea  is  entered  for  him,  and  the 
clerk  or  attorney-general  replies  that  he  is  guilty; 
when  an  issue  is  formed;  Com.  v.  Battis,  1  Mass. 
95  ;  se>e  4  Bla.  Com.  c.  xxv.  The  holding  up  of  the 
hand  iu  no  longer  obligatory  in  England,  though 
still  maintained  in  some  of  the  United  States  with 
the  qualification  that  if  the  defendant  refuses  to 
hold  up  his  hand,  but  confesses  that  he  is  the  per- 
son named,  it  is  enough;  Whart.  Cr.  PL  &  Pr.  (9th 
ed.)  §  699.  In  cases  where  arraignment  of  the  de- 
fendant is  required,  a  failure  to  arraign  is  fatal; 
Graeter  v.  State,  54  Ind.  159 ;  Grigg  v.  People,  31 
Mich.  471;  Anderson  v'.  State,  3  Pinn.  (Wis.)  367; 
Smith  v.  Suite,  1  Tex.  App.  408;  People  v.  Gaines, 
52  Cal.  480.  See,  contra,  State  v.  Cassady,  12  Kan. 
550.  In  cases  of  a  mistrial  (Hayes  v.  State,  58  Ga. 
35),  or  removal  to  another  court  (Davis  v.  State,  39 
Md.    355),    there   need   not   be    a    fresh   arraignment. 

If  the  defendant,  when  called  upon,  makes  no  an- 
swer, and  it  is  a  matter  of  doubt  whether  or  not  he 
is  mute  of  malice,  the  court  may  direct  a  jury  to  be 
forthwith  impanelled  and  sworn,  to  try  whether  the 
prisoner  is  mute  of  malice  or  ex  visitatione  Dei; 
and  such  jury  may  consist  of  any  twelve  men  who 
may  happen  to  be  present.  If  a  person  is  found  to 
be  mute  ex  visitatione  Dei,  the  court  in  its  discre- 
tion will  use  such  means  as  may  be  sufficient  to  en- 
able the  defendant  to  understand  the  charge  and 
make  his  answer;  and  if  this  is  found  impracti- 
cable, a  plea  of  not  guilty  will  be  entered,  and  the 
trial  proceed.  But  if  the  jury  return  a  verdict  that 
he  is  mute  fraudulently  and  willfully,  the  court  will 
pass  sentence  as  upon  a  conviction;  Ellenwood  v. 
Com.,  10  Mete.  (Mass.)  222;  Archb.  Cr.  PI.  129; 
3  C.  &  K.  121 ;  Rose.  Cr.  Ev.  (8th  ed.)  199.  See  the 
case  of  a  deaf  person  who  could  not  be  induced  to 
plead;  1  Leach,  Cr.  Cas.  451;  of  a  person  deaf  and 
dumb;  id.  102;  Com.  v.  Hill,  14  Mass.  207;  7  C. 
&  P.  503  ;  6  Cox,  Cr.  Cas.  386  ;  3  C.  &  K.  328  ;  State 
v.  Draper,  1  Houst.  Del.  Cr.  Cas.  291.  See  Deaf 
and  Dumb  ;  Guilty  ;  God  and  My  Country  ; 
Mute  ;    Peine  Forte  et  Dure. 

ARRAMEUR.  An  ancient  officer  of  a  port, 
whose  business  was  to  load  and  unload  ves- 
sels. 

There  were  formerly,  in  several  ports  of  Guyenne, 
certain  officers,  called  arrameurs,  or  stowers,  who 
were  master-carpenters  and  were  paid  by  the  mer- 
chants, who  loaded  the  ship.  Their  business  was 
to  dispose  properly,  and  stow  closely,  all  goods  in 
casks,  bales,  boxes,  bundles,  or  otherwise  ;  to  bal- 
ance both  sides,  to  fill  up  the  vacant  spaces,  and 
arrange  everything  to  the  best  advantage.  It  was 
not  but  that  the  greatest  part  of  the  ship's  crew 
understood  this  as  well  as  these  stowers,  but  they 
would  not  meddle  with  it,  nor  undertake  it,  to 
avoid  falling  under  the  merchant's  displeasure,  or 
being  accountable  for  any  ill  accident  that  might 
happen  by  that  means.  There  were  also  sacquiers, 
who  were  very  ancient  officers,  as  may  be  seen  in 
the  Theodosian  code,  Unica  de  Scaccariis  Portus 
RomcB,  lib.  14.  Their  business  was  to  load  and  un- 
load vessels  loaded  with  salt,  corn,  or  fish,  to  pre- 
vent the  ship's  crew  defrauding  the  merchant  by 
false  tale,  or  cheating  him  of  his  merchandise  other- 
wise; Laws  of  Oleron,  in  1  Pet.  Adm.  App.  xxv. 
See  Stevedore. 


ARRANGEMENT.  The  natural  meaning 
of  the  word  is  "setting  in  order."  1  El.  & 
Bl.  540. 

ARRANGEMENT,  DEED  OF.  A  term 
used  in  England  to  express  an  assignment 
for  the  benefit  of  creditors. 

ARRAS.  In  Spanish  Law.  The  donation 
which  the  husband  makes  to  his  wife,  by 
reason  or  on  account  of  marriage,  and  in 
consideration  of  the  dote,  or  portion,  which 
he  receives  from  her.  Aso  &  Man.  Inst  b. 
1,  t.  7,  c.  3. 

The  property  contributed  by  the  husband 
ad  sustinenda  onera  matrimonii  (for  bear- 
ing the  expenses). 

The  husband  is  under  no  obligation  to  give  arras ; 
but  it  is  a  donation  purely  voluntary.  He  is  not 
permitted  to  give  in  arras  more  than  a  tenth  of  his 
property.  The  arras  is  the  exclusive  property  of 
the  wife,  subject  to  the  husband's  usufruct  during 
his   life;    Burge,   Confl.   Laws   417. 

ARRAY.  The  whole  body  of  jurors  sum- 
moned to  attend  a  court,  as  they  are  array- 
ed or  arranged  on  the  panel.  See  Challeng- 
es ;  Dane,  Abr.  Index;  1  Chit.  Cr.  Law  536; 
Comyns,   Dig.    Challenge,   B. 

ARRAY ER.  An  English  military  officer 
in  the  early  part  of  the  fifteenth  century. 
His  duties  were  similar  to  those  of  the  mod- 
ern Lord  Lieutenant  of  a  county. 

ARREARAGES.     Arrears. 

ARREARS.  The  remainder  of  an  account 
or  sum  of  money  in  the  hands  of  an  account- 
ant. Any  money  due  and  unpaid  at  a  given 
time.     Cowell;  Spelman,  Gloss. 

"In  arrear"  means  overdue  and  unpaid. 
Hollingsworth  v.  Willis,  64  Miss.  157,  8 
South.  170. 

ARREST.  To  deprive  a  person  of  his  lib- 
erty by  legal  authority. 

The  taking,  seizing  or  detaining  the  person 
of  another,  touching  or  putting  hands  upon 
him  in  the  execution  of  process,  or  any  act 
indicating  an  intention  to  arrest.  U.  S.  v. 
Benner,  Bald.  234,  239,  Fed.  Cas.  No.  14,568. 

"A  restraint  of  the  person,  a  restriction  of 
the  right  of  locomotion  which  cannot  be  im- 
plied in  the  mere  notification,  or  summons 
on  petition,  or  any  other  service  of  such  pro- 
cess, by  which  no  bail  is  required  nor  re- 
straint of  personal  liberty."  Hart  v.  Flynn's 
Ex'r,  8  Dana  (Ky.)  190.  "An  arrest  is  an 
imprisonment."  Blight  v.  Meeker,  7  N.  J. 
D.  97.  The  term  implies  restraint  of  liberty 
by  an  officer  of  the  law,  but  touching  the 
person  is  not  necessary  unless  required  to 
acquire  control  of  the  person  of  the  one  ar- 
rested. State  v.  Buxton,  102  N.  C.  129,  8 
S.  E.  774 ;  McAleer  v.  Good,  216  Pa.  473,  65 
Atl.  934,  10  L.  R.  A.  (N.  S.)  303,  116  Am. 
St.  Rep.  782;  Butler  v.  Washburn,  25  N.  H. 
251;  Bissell  v.  Gold,  1  Wend.  (N.  Y.)  210,  19 
Am.  Dec.  480;  5  U.  C.  Q.  B.  341;  Strout  v. 
Gooch,  8  Me.  126;  4  C.  B.  N.  S.  180,  205, 
where  the  subject  is  examined  by  Willes,  J., 
who    expressly    dissents    from    Sir    James 


ARREST 


241 


ARREST 


Mansfield  In  2  B.  &  P.  N.  R.  211,  the  authori- 
ty usually  relied  upon  contra.  What  is  ac- 
tually required  is  more  tersely  expressed  in 
Lawson  v.  Buzines,  3  Ilarr.  (Del.)  410,  when 
he  says  that  the  officer  "must  make  him  his 
prisoner  in  an  unequivocal  form." 

As  ordinarily  used,  the  terms  arrest  and  attach- 
ment coincide  In  meaning  to  some  extent;  though 
in  strictness,  as  a  in,  an  arrest  may  be  said 

to  be  the  act  resulting  from  the  service  of  an  at- 
tachment. And  in  the  more  extended  sense  which 
is  sometimes  given  to  attachment,  including  the  act 
of  taking,  it  would  seem  to  differ  from  arrest  in  that 
it  is  more  peculiarly  applicable  to  a  taking  of  prop- 
erty, while  arrest  is  more  commonly  used  in  speak- 
ing of  persons. 

The  terms  are,  however,  often  interchanged  when 
speaking  of  the  taking  a  man  by  virtue  of  legal  au- 
thority. Arrest  is  also  applied  in  some  instances  to 
a  seizure  and  detention  of  personal  chattels,  espe- 
cially of  ships  and  vessels;  but  this  use  of  the  term 
is  not  common  in  modern   law. 

In  Civil  Practice.  The  apprehension  of  a 
person  by  virtue  of  a  lawful  authority  to 
answer  the  demand  against  him  in  a  civil 
action.     Gentry  v.  Griffith,  27  Tex.  4G2. 

One  of  the  means  which  the  law  gives  the 
creditor  to  secure  the  person  of  his  debtor 
while  the  suit  is  pending,  or  to  compel  him 
to  give  security  for  his  appearance  after 
judgment.     La.   Civ.   Code  art.   211. 

Acts  which  amount  to  a  taking  into  cus- 
tody are  necessary  to  constitute  an  arrest; 
but  there  need  be  no  actual  force  or  manual 
touching  the  body:  it  is  enough  if  the  party 
be  within  the  power  of  the  officer  and  sub- 
mit to  the  arrest;  Cas.  temp.  Hardw.  301; 
5  B.  &  P.  211;  Huntington  v.  Blaisdell,  2 
N.  H.  318;  Hart  v.  Flynn's  Ex'r,  8  Dana 
(Ky.)  190;  Strout  v.  Gooch,  8  Me.  127;  Bis- 
sel  v.  Gold,  1  Wend.  (N.  Y.)  215,  19  Am. 
Dec.  4S0;  Field  v.  Ireland,  21  Ala.  240; 
Courtoy  v.  Dozier,  20  Ga.  309;  Cooper  v. 
Adams,  2  Blackf.  (Ind.)  294;  but  mere 
words  without  submission  are  not  sufficient; 
2  Hale,  PI.  Cr.  129;  Jones  v.  Jones,  35  N.  C. 
448;  State  v.  Buxton,  102  N.  C.  129,  8  S. 
E.   774. 

Whom  to  be  made  by.  It  must  be  made 
by  an  officer  haying  proper  authority.  This 
is,  in  the  United  States,  the  sheriff,  or  one 
of  his  deputies,  general  or  special,  or  by  a 
mere  assistant  of  the  officer,  if  he  be  so  near 
as  to  be  considered  as  acting,  though  he  do 
not  actually  make  the  arrest ;  Cowp.  05. 

The  process  of  the.  United  States  courts  is 
executed  by  a  marshal.  As  to  the  power  of 
the  sergeant-at-arms  of  a  legislative  body 
to  arrest  for  contempt  or  other  cause,  see  1 
Kent  230.  An  order  of  the  United  States 
House  of  Representatives  declaring  a  wit- 
ness before  one  of  its  committees  in  con- 
tempt for  not  answering  certain  questions, 
and  ordering  his  arrest  and  imprisonment 
is  void  and  affords  no  defence  to  the  ser- 
geant-at-arms in  an  action  for  false  impris- 
onment against  him;  Kilbourn  v.  Thompson, 
103  r.  S.  108,  20  L.  Ed.  377,  where  there  is 
a  full  review  of  the  cases. 

Who  is  liable  to.  All  persons  found  with- 
Bouv.— 16 


in  the  jurisdiction  are  liable  to   arrest,   ex- 
cepting   certain    specified    classes,    including 
ambassadors  and  their  servants;    1    I 
554;  3  D.  &  R.  25,  833;   Holbrook, 
Co.    v.    Henderson,    4    Sandf. 
attorneys  at  law;  barristers  attending 
or  on  circuit;   1   II.    Bla.   836  im   v. 

Lewis,    19  Ga.  008;  8  Sim.  :;77  ;    16   V.  -.  412; 
Secor  v.  Bell,  18  Johns.  (N.  v  /  at- 

tending  court    as  such;    1    H.    Ilia.    6 
Maule  &  s.  638;  bankrupts  until  the  time  for 
surrender   is   passed,    and   under    some   other 
circumstances;  8  Term  47.".  634;  in  re  Kim- 
ball, 2  Ben.  38,  Fed.  Cas.  No.  7.707;  bishops 
(but  not  in  U.  S.  1  :  consuls-general;  0 
447;  though  doubtful,  and  the  privilege  does 
not  extend  to  consuls;  1  Taunt.  100;  3  Maule 
&  S.  2S4;  McKay  v.  Garcia,  <;  Ben 
Cas.  No.  8,844;  clergymen  in   England  while 
performing  divine  service;  Bacon.  Abr.  Tres- 
pass; 24   &  25  Vict.  c.  100   (which   extended 
the  provisions  of  9  Geo.   IV.   c.  31,   E   - 
as  to  include  ministers  not  of  the  Establish- 
ed Church)  ;  electors  attending  a  public  elec- 
tion;   Swift   v.    Chamberlain.    3    Conn.    537; 
executors    sued    on   the    testator's   liability; 
heirs    sued    as    such;    hundredors    sued    as 
such;  insolvent  debtors  lawfully  discharged; 
3   Maule  &  S.   595;   and   see  4  Taunt.  631; 
Duncan  v.    Klinefelter,  5    Watts    (Pa.)    141, 
30  Am.  Dec.  295;  Wilmarth  v.  Burt,  7  Mete. 
(Mass.)   257;  not  when  sued  on  subsequent 
liabilities    or    promises,    G(  Taunt. 
Glazier  v.  Stafford,  4  Ilarr.  (Del.)  - W;  Irish 
peers;   stat.  39  &  40  Geo.   III.   c.   07,  §  4; 
judges    on    process    from    their    own    court; 
Tracy    v.    Whipple,    8   Johns.    (X.    Y.  1    381; 
Gratz  v.  Wilson,  0  N.  J.  L.  419;  marshal  of 
the  King's  Bench;  members  of  congress  and 
state  legislatures  while  attending  the  1  ■ 
tive  assemblies  to  which  they  belong;  U.  S. 
v.  Cooper,  4  Dall.   (Pa.)   341,  Fed.   ('as.   No. 
14,801,    1   L.    Ed.   859;   King   v.   Coit.   4    Day 
(Conn.)   133;  Gibbes  v.  Mitchell,  2  Bay    (S. 
C.)    400;    McPherson    v.    Nesmith,    3    Gratt. 
(Va.)    237;    Lewis    v.    Elmendorf.   2    Julius. 
Cas.    (N.  Y.)    222;   Hoppin   v.   Jenckes,   8  R. 
I.   453,   5  Am.   Rep.   597    (but  the   exemption 
does  not  apply  while  a  member  of  Congress 
is  in  his  state  on  private  business  with  leave 
of  absence;  Worth  v.  Norton,  50  S.  C.  56,  :':'• 
S.   E.  792,  45  L.  R.  A.   503.  70  Am.   St.  Rep. 
524;  nor  does  it  give  a  privilege  from  serv- 
ice of  summons  in  a   civil  action;   Rhodes  v. 
Walsh.  55  Minn.  542,  57  N.  W.  211'.  23  L.  R. 
A.  632;  Gentry  v.  Griffith,  27  Tex.  461 1  ;  mili- 
tiamen while  engaged  in  the  performance  of 
military  duty  ;  officers  of  the  army  and  mili- 
tia, to  some  extent;  4  Taunt.  557;  but  see  8 
Term  105;  Morgan  v.  Eckart,  1  Dall.  (U.  S.) 
295,  1  L.  Ed.  144;  White  v.  Lowther,  3  Ga. 
397;  Ex  parte  McRoberts,  16  la.   600;   Peo- 
ple v.  Campbell,  40  N.  Y.  133;  parties  to  a 
suit  attending  court;  11  East  439;  Coxe  142; 
Richards  v.  Goodson,  2  Va.  Cas.  381 ;  Hurst's 
Case,  4  Dall.   (U.  S.)   387,  1  L.  Ed.  87S :  Ex 
parte  McNeil,  6  Mass.  245;  id.,  204;  Wilson 


ARREST 


242 


ARREST 


v.  Nettleton,  12  111.  61;  Sadler  v.  Ray,  5 
Rich.  (S.  C.)  523;  including  a  court  of  in- 
solvency; 2  Marsh.  57;   G  Taunt.  336;   1  V. 

6  B.  316;  Wood  V.  Neale,  5  Gray  (Mass.) 
538;  or  a  reference;  Vincent  v.  Watson,  1 
Rich.  (S.  C.)  194;  the  former  president  of 
a  foreign  republic  while  residing  in  one  of 
the  U.  S.;  Hatch  v.  Baez,  7  Hun  (N.  Y.) 
596;  but  a  party  arrested  on  a  criminal 
charge,  and  discharged  on  bail,  may  be  ar- 
rested on  civil  process  before  he  leaves  the 
court  room ;  Moore  v.  Green,  73  N.  C.  394, 
21  Am.  Rep.  470;  soldiers;  White  v.  Lowther, 
3  Ga.  397;  sovereigns,  including,  undoubtedly, 
governors  of  the  states;  the  Warden  of  the 
Fleet;  icitnesses  attending  a  judicial  tribu- 
nal ;  3  B.  &  Aid.  252 ;  Bowes  v.  Tuckerrnan, 

7  Johns.  (N.  Y.)  5.')8 ;  In  re  Dickenson,  3 
Harr.  (Del.)  517;  by  legal  compulsion;  Ex 
parte  McNeil,  6  Mass.  264;  U.  S.  v.  Edme, 
9  S.  &  R.  (Pa.)  147;  Page  v.  Randall,  6  Cal. 
32;  Sanford  v.  Chase,  3  Cow.  (N.  Y.)  381; 
women;  O'Boyle  v.  Brown,  Wright  (Ohio) 
465;  Wheeler  v.  Hartwell,  17  N.  Y.  Super. 
Ct.  684;  but  see  Eypert  v.  Bolenius,  2  Abb. 
N.  C.  193;  Blight  v.  Meeker,  7  N.  J.  L.  97; 
and  perhaps  other  classes,  under  local  stat- 
utes; married  women,  on  suits  arising  from 
contracts;  1  Term  486;  6  id.  451;  7  Taunt. 
55 ;  but  the  privilege  may  be  forfeited  by  her 
conduct;  1  B.  &  P.  8;  5  id.  380;  and  the 
grounds  of  these  early  decisions  are  neces- 
sarily affected  by  the  modern  statutes  per- 
mitting married  women  to  contract  and  sue 
and  be  sued  as  if  sole,  but  although  the 
Pennsylvania  act  of  1887  in  section  2  author- 
izes her  so  to  be  sued  on  her  contract  and 
for  all  torts,  it  has  been  held  that  a  married 
woman  is  notwithstanding  that  section  priv- 
ileged from  arrest  under  a  capias;  Lorenz  v. 
Betz,  2  W.  N.  C.  (Pa.)  274.  Reference  must 
be  had  in  many  of  the  above  cases  to  stat- 
utes for  modifications  of  the  privilege.  In  all 
cases  where  the  privilege  attaches  in  consid- 
eration of  an  attendance  at  a  specified  place 
in  a  certain  character,  it  includes  the  stay 
and  a  reasonable  time  for  going  and  return- 
ing; 2  W.  Bla.  1113;  Smythe  v.  Banks,  4 
Dall.  (Pa.)  329,  1  L.  Ed.  854;  Lewis  v.  Elm- 
endorf,  2  Johns.  Cas.  (N.  Y.)  222;  Crocker 
v.  Duncan,  6  Blackf.  (Ind.)  278;  In  re  Dick- 
enson, 3  Harr.  (Del.)  517;  but  not  including 
delays  in  the  way ;  3  B.  &  Aid.  252 ;  Smythe 
v.  Banks,  4  Dall.  (Pa.)  329,  1  L.  Ed.  854; 
or  deviations ;  Chaffee  v.  Jones,  19  Pick. 
(Mass.)  260.  A  person  brotight  from  one 
state  into  another  under  federal  process  in 
an  extradition  proceeding,  and  discharged 
therefrom,  cannot  be  arrested  under  civil 
process  until  he  has  reasonable  time  to  re- 
turn to  the  state  from  which  he  came;  In 
re  Baruch,  41  Fed.  472. 

Where  and  when  it  may  be  made.  An 
arrest  may  be  made  in  any  place,  except  in 
the  actual  or  constructive  presence  of  a 
court,  where  the  defendant  is  necessarily  in 
attendance  on  business,  the  privilege  extend- 


ing to  going  thereto  and  returning;  3  Bla. 
Com.  289;  but  this  privilege  does  not  avail 
one  brought  into  court  on  criminal  process 
and  discharged  on  bail ;  Moore  v.  Green,  73 
N.  C.  394,  21  Am.  Rep.  470.  An  officer  may 
not  break  open  an  outer  door  to  arrest  one 
whose  domicile  is  there;  Oystead  v.  Shed, 
13  Mass.  520,  7  Am.  Dec.  172 ;  Gordon  v.  Clif- 
ford, 28  N.  H.  402;  aliter,  under  statute; 
Hawkins  v.  Com.,  14  B.  Mon.  (Ky.)  395,  61 
Am.  Dec.  147;  Phillips  v.  Ronald,  3  Bush 
(Ky.)  244,  96  Am.  Dec.  216;  but  he  may 
break  inner  doors  to  find  the  defendant  when 
the  outer  door  is  open;  Williams  v.  Spencer, 

5  Johns.  (N.  Y.)  352;  8  Taunt.  250;  Cowp. 
1 ;  and  this  includes  the  door  of  the  room  of 
a  lodger ;  id. ;  but  not  the  inner  door  of  the 
house  of  a  stranger  upon  suspicion  that  the 
defendant  is  there;  6  Taunt.  246.  He  may 
break  the  outer  door  of  the  house  of  defend- 
ant, who  has  escaped  after  arrest  and  taken 
refuge  there;  Allen  v.  Martin,  10  Wend.  (N. 
Y.)  300,  25  Am.  Dec.  564.  It  could  not  be 
made  on  Sunday  or  any  public  holiday ;  Stat. 
29  Car.  II.  c.  7;  contra  (under  a  statute), 
King  v.  Strain,  6  Blackf.  (Ind.)  447. 

An  officer  with  a  proper  writ  may  stop  a 
train  to  arrest  the  railroad  engineer  running 
it ;  20  Ohio  L.  J.  464 ;  St.  Johnsbury  &  L. 
C.  R.  Co.  v.  Hunt,  60  Vt.  588,  15  Atl.  186, 
1  L.  R.  A.  189,  6  Am.  Rep.  138. 

Discharge  from  arrest  on  mesne  process 
may  be  obtained  by  giving  sufficient  bail, 
which  the  officer  is  bound  to  take;  3  Maule 

6  S.  283;  6  Term  355;  15  East  320;  but 
when  the  arrest  is  on  final  process,  giving 
bail  does  not  authorize  a  discharge. 

If  the  defendant  otherwise  withdraw  him- 
self from  arrest,  or  if  the  officer  discharge 
him,  without  authority,  it  is  an  escape;  and 
the  sheriff  is  liable  to  the  plaintiff.  See 
Escape.  If  the  party  is  withdrawn  forcibly 
from  the  custody  of  the  officer  by  third  per- 
sons, it  is  a  rescue.     See  Rescue. 

Extended  facilities  are  offered  to  poor 
debtors  to  obtain  a  discharge  under  the  stat- 
utes of  most  if  not  all  of  the  states  of  the 
United  States.  In  consequence,  except  in 
cases  of  apprehended  fraud,  as  in  the  con- 
cealment of  property  or  an  intention  to  ab- 
scond, arrests  are  infrequently  made.  See, 
as  to  excepted  cases,  Armstrong  v.  Ayres,  19 
Conn.  540;   Bramhall  v.   Seavey,   28  Me.  45. 

Generally.  An  unauthorized  arrest,  as  un- 
der process  materially  irregular  or  informal ; 
Russell  v.  Hubbard,  6  Barb.  (N.  Y.)  654; 
Welch  v.  Scott,  27  N.  C.  72  ;  Somervell  v.  Hunt, 
3  H.  &  McH.  (Md.)  113;  Tackett  v.  State,  3 
Yerg.  (Tenn.)  392,  24  Am.  Dec.  582;  Lough  v. 
Millard,  2  R.  I.  436;  Grumon  v.  Raymond,  1 
Conn.  40,  6  Am.  Dec.  200 ;  or  process  issuing 
from  a  court  which  has  no  general  jurisdic- 
tion of  the  subject-matter;  10  Co.  68;  10  B. 
&  C.  28;  Fisher  v.  McGirr,  1  Gray  (Mass.) 
1,  61  Am.  Dec.  381;  Tracy  v.  Williams,  4 
Conn.  107,  10  Am.  Dec.  102 ;  Flack  v.  Ankeny, 
Breese    (111.)    187;   Duckworth  v.  Johnston, 


ARREST 


243 


ARK  EST 


7  Ala.  5S1  :  Camp  v.  Moseley,  2  Fla.  171; 
State  v.  McDonald,  14  N.  0.  471;  Rodman 
v.  Ilarcourt,  4  B.  Monr.  (Ky.)  230;  state  v. 
Weed,  LM  x.  II.  262,  53  Am.  Dec.  L88;  Brady 
v.  Davis,  9  Ga.  7::;  Gurney  v.  Tufts,  37  Me. 
130,  58  Am.  Dec.  777;  Ex  parte  Burford,  :: 
Cra.  (U.  S.)  4  is.  2  L.  Ed.  495;  Greene  v. 
Brlggs,  l  curt,  c  C.  311,  Fed.  <'as.  No.  5,- 
764;  is  void;  but  il'  the  failure  of  jurisdic- 
tion be  as  to  person,  place,  or  process,  it 
must  appear  on  the  warrant,  to  have  this 
effect;  Bull.  N.  P.  83;  Bavacool  v.  Boughton, 

5  Wend.  (N.  Y.)  17">,  21  Am.  Dec.  181; 
Churchill  v.  Churchill,  12  Vt.  661;  Barnes 
v.  Barber,  1  Gilman  (111.)  401  ;  .Miller  v. 
Grice,  1  Rich.  (S.  C.)  147;  Reed  v.  Rice,  2 
J.  J.  Marsh.  (Ky.)  44,  19  Am.  Dec.  122; 
Grumou  v.  Raymond,  1  Conn.  40,  6  Am.  Dec. 
200;  Tuell  v.  Wrink,  6  Blackf.  (Ind.)  249; 
State  v.  Tuell,  id.  344;  Wells  v.  Jackson,  3 
Munf.  (Va.)  458;  Halsted  v.  Brice,  13  Mo. 
171;  Conner  v.  Com.,  3  Binn.  (Pa.)  38;  Don- 
ahoe  v.  Shed,  8  Mete.  (.Mass.)  326;  Humes 
v.  Taber,  1  R.  I.  464;  3  Burr.  1766;  1  W. 
Bla.  555.  The  arrest  of  the  wrong  person; 
2  Scott  N.  S.  86;  1  M.  &  G.  77.'.;  Melvln  v. 
Fisher,  8  N.  H.  406;  Scott  v.  Ely,  4  Wend. 
(N.  Y.)  565;  Gurnsey  v.  Lovell,  9  id.  319; 
renders  the  officer  liable  for  a  trespass  to 
the  party  arrested.  See  1  Bennett  &  H. 
Lead.  Crim.   Cas.   180-184. 

In  Criminal  Cases.  The  apprehending  or 
detaining  of  the  person  in  order  to  be  forth- 
coming to  answer  an  alleged  or  suspected 
crime.  Quoted  and  adopted,  as  is  also  the 
distinction  which  follows,  in  County  of  Mont- 
gomery v.  Robinson,  85  111.  174 ;  Ilogan  v. 
Stophlet,  179  111.  150,  53  N.  E.  604,  44  L. 
R.  A.  809 ;  Ex  parte  Sherwood,  29  Tex.  App. 
334,  15  S.  W.  812. 

The  word  arrest  is  said  to  be  more  properly  used 
in  civil  cases,  and  apprehension  in  criminal.  Thus, 
a  man  is  arrested  under  a  capias  ad  respondendum, 
and  apprehended  under  a  warrant  charging  him 
with  larceny. 

^Yho  may  make.  The  person  to  whom 
the  warrant  is  addressed  is  the  proper  per- 
son in  case  a  warrant  hasi  been  issued, 
whether  he  be  described  by  name;  Salk. 
17G;  Frost  v.  Thomas,  24  Wend.  (N.  Y.) 
418;  State  v.  Kirby,  24  N.  C.  201;  or  by  his 
office;    1  B.  &  C.  288;    Russell  v.  Hubbard, 

6  Barb.  (N.  Y.)  654.  But,  if  the  authority 
of  the  warrant  is  insufficient,  he  may  be  lia- 
ble as  a  trespasser.  See  supra.  A  known 
officer  need  not  show  a  warrant  in  making 
an  arrest,  but  a  special  officer  must  if  de- 
manded; State  v.  Dula,  100  N.  C.  423,  6  S.  E. 
89. 

Any  peace  officer,  as  a  justice  of  the  peace; 
1  Hale,  PI.  Cr.  86;  sheriff;  1  Saund.  77;  1 
Taunt.  46;  coroner;  4  Bla.  Com.  292;  con- 
stable; 32  Eng.  L.  &  Eq.  783;  Danovan  v. 
Jones,  36  N.  H.  246;  or  watchman;  3  Taunt. 
14;  3  Campb.  420;  may  without  a  warrant 
arrest  any  person  committing  a  felony  in 
his  presence;   Wakely  v.  Hart,  6  Binn.  (Pa.)  | 


3    Hawkins.    PI.   Cr.   164;    8 
Wells,  71  111.  7S;    Mate  v 
231;     Boyd    v.    State,    17    Ga.    194; 
mittlng  a  in-each  of  the  peact  .during 
tinuance  or  immediately    aft 
&  P.  40;   Taylor  v.   - 
384  ;    Knot  \.  Gay,  1  Root   1 1  '■ 
Council  v.  Payne,  2  Nott  &  M'< 
U.  s.  v.  Hart,  Pet.  C.  C.  390,   I 
L5.316;    or  if  he  is  sufficiently  near  to 
what  Is  said  and  the  sound  <>f  the  blows,  al- 
though he  cannot  Bee  Cor  the  darkne  s;   state 
v.  .Mr. vice,  107  N.  0.  812,  12  S.  E.  435,   LO  L. 
R.   a.  607;    Johnson   v.   State,  30  Ga 
White    v.    Kent,    11    Ohio   St.  >ks   V. 

Com.,  61  la.  352,  100  Am.  Dec.  645;  oi 
to  prevent  the  commission;  and  such  officer 
may  arrest  any  one  whom  be  rea  sonably  sus- 
of  having  committed  a  felony,  whether 
i  naiiy  been  committed  <>r  not ; 
::  Campb.  420;  Rohan  v.  Sawin,  5  Cush. 
(Mass.)  281;  Eanes  v.  state,  i;  Eumphr. 
(Tenn.)  53,  44  Am.  Dec.  289;  Wakely  v. 
Hart,  6  Binn.  (Pa.)  316;  Bolley  v.  Mix,  3 
Wend.  (X.  Y.)  350,  20  Am.  Dec.  702;  wheth- 
er acting  on  his  own  knowledge  or  facts  com- 
municated by  others;  6  B.  &  C.  u';."> ;  hut  not 
unless  the  offence  amount  to  a  felony;  5 
Exch.  378;  Rohan  V.  Sawin.  5  Cush.  I  M 
281;  Com.  v.  Carey,  L2  id.  246;  Com.  v.  Mc- 
Laughlin, 12  id.  615.  See  Russ.  &  R.  329; 
Wright  v.  Com.,  85  Ky.  123,  2  S.  W.  904.  But 
a  constable  cannot  arrest  for  an  ordinary 
misdemeanor  without  a  warrant,  unless  pres- 
ent at  the  time  of  the  offeuce;  Winn  v.  Hob- 
son,  54  N.  Y.  Super.  Ct.  330;  North  v.  Peo- 
ple, 139  111.  SI,  28  N.  E.  966;  Ross  v.  Leg- 
gett,  61  Mich.  44.",,  28  X.  W.  695,  1  Am.  St. 
Rep.  608;  Scott  v.  Eldridge,  154  Mass.  25, 
27  N.  E.  677,  12  L.  R.  A.  37'J;  State  v.  David- 
son, 44  Mo.  App.  513. 

A  police  constable  may  arrest  for  a  breach 
of  the  peace  committed  in  bis  sightj  4  11.  & 
X.  265.  If  upon  probable  suspicion  or  a  rea- 
sonable charge  made  by  a  third  person,  be 
believes  that  a  felony  (but  not  a  misdemean- 
or; 5  Exch.  378)  has  been  committed  he  may 
arrest  the  person  whom  he  believes  to  have 
committed  the  felony;  3  II.  &  X*.  417.  To  do 
this  he  may  break  open  doors.  Blackstone 
(4  Com.  492)  sa.vs  he  may  kill  the  felon  if 
necessary. 

Mere  impudence  or  abusive  language  to  an 
officer  does  not  justify  arrest  wit i nit  a  war- 
rant; Pinkerton  v.  Verberg,  78  Mich.  573,  44 
N.  W.  579,  7  L.  R.  A.  507,  18  Am.  St.  Rep. 
473?  Jenkins  v.  State,  3  Ga.  App.  146,  59  S. 
E.  435;  or  threats  of  injury  to  another  offi- 
cer; Giroux  v.  State.  40  Tex.  98;  otherwise 
if  there  is  interference  with  the  performance 
of  his  duty;  Montgomery  v.  Sutton.  t;7  la. 
497,  25  X.  W.  7  IS;  Myers  v.  Dunn.  126  Ky. 
548,  104  S.  W.  352,  13  L.  R.  A.  (N.  S.)  881, 
and  note;  or  if  the  language  amounts  to  a 
breach  of  the  peace  ou  a  public  street;  State 
v.  Appleton,  70  Kan.  217.  78  Pac.  4l."» ;  Davis 
v.  Burgess,  51  Mich.  514,  20  N.  W.  510,  52  Am. 


ARREST 


244 


ARREST 


Rep.  828.  Threats  alone,  unaccompanied  by 
any  effort  or  apparent  intention  to  execute 
them,  do  not  constitute  the  offence  of  resist- 
ing an  officer  in  the  execution  of  lawful  pro- 
cess; Statham  v.  State,  41  Ga.  507;  nor  do 
mere  derogatory  remarks  addressed  by  a  by- 
stander to  a  policeman;  City  of  Chicago  v. 
Brod,  141  111.  App.  500;  nor  is  it  resistance 
to  step  in  front  of  a  policeman  making  an 
arrest,  demand  his  number  and  remonstrate 
with  him  for  ill  treating  the  prisoner;  Com. 
v.  Sheriff,  3  Brewst.  (Pa.)  343.  A  mere  state- 
ment by  one  about  to  be  arrested  that  he 
will  die  first  is  not  within  a  statute  making 
it  a  crime  to  oppose  arrest;  State  v.  Scott, 
123  La.  1085,  49  South.  715,  24  L.  R.  A.  (N. 
S.)  199,  17  Ann.  Cas.  400. 

An  officer  may  arrest  without  warrant  for 
the  violation  of  a  municipal  ordinance  com- 
mitted in  his  presence;  Village  of  Oran  v. 
Bles,  52  Mo.  App.  509;  but  in  such  case  the 
offender  must  have  a  speedy  trial  or  hearing; 
State  v.  Freeman,  80  N.  C.  683;  Judson  v. 
Reardon,  16  Minn.  431  (Gil.  387)  ;  and  the 
right  exists  whether  sucb  arrest  is  author- 
ized by  ordinance  or  not;  Scircle  v.  Neeves, 
47  Ind.  289;  or  if  the  charter  confers  on  the 
officer  the  powers  of  a  constable;  State  v. 
Castieny,  34  Minn.  1,  24  N.  W.  458;  and  a 
municipal  ordinance  authorizing  such  ar- 
rests is  valid ;  White  v.  Kent,  11  Ohio  St. 
550;  as  is  also  a  charter  or  general  statute ; 
Mayo  v.  Wilson,  1  N.  H.  53;  Burroughs  v. 
Eastman,  101  Mich.  419,  59  N.  W.  817,  24  L. 
R.  A.  859,  45  Am.  St.  Rep.  419;  Jones  v.  Root, 
6  Gray  (Mass.)  435;  but  such  arrest  is  not 
authorized  if  the  offense  is  not  committed  in 
the  presence  of  the  officer ;  Pesterfield  v. 
Vickers,  3  Coldw.  (Tenn.)  205;  State  v.  Belk, 
76  N.  C.  10,  where  it  was  also  said  that  the 
right  to  arrest  in  such  cases  does  not  neces- 
sarily exist.  But  an  ordinance  authorizing 
arrest  at  the  will  of  the  officer  without  pro- 
viding an  opportunity  for  trial  or  prelim- 
inary examination  is  void  and  will  not  pro- 
tect the  officer  even  if  acting  in  good  faith ; 
State  v.  Hunter,  106  N.  C.  796,  11  S.  E.  366, 
8L.E.A.  529. 

As  to  the  power  to  make  arrest  without  a 
warrant,  see  Porter  v.  State,  124  Ga.  297,  52 
S.  E.  283,  2  L.  R.  A.  (N.  S.)  730  and  note. 
A  private  person  who  is  present  when  a 
felony  is  committed;  1  Mood.  93;  Holley  v. 
Mix,  3  Wend.  (N.  Y.)  353,  20  Am.  Dec.  702; 
Long  v.  State,  12  Ga.  293;  or  during  the 
commission  of  a  breach  of  the  peace;  10  C. 
&  F.  28;  In  re  Powers,  25  Vt.  261;  or  sees 
another  in  the  act  of  carrying  away  prop- 
erty he  has  stolen ;  Hershey  v.  O'Neill,  36 
Fed.  168;  may  and  should  arrest  the  felon, 
and  may  upon  reasonable  suspicion  that  the 
person  arrested  is  the  felon,  if  a  felony  has 
been  committed;  1  Price,  Exch.  525;  United 
States  v.  Boyd,  45  Fed.  851;  but  in  defence 
to  an  action  he  must  allege  and  prove  the 
offence  to  have  been  committed;  6  C.  &  P. 
684,  723;    Holley  v.  Mix,  3  Wend.    (N.  X.) 


353;  Rohan  v.  Sawin,  5  Cush.  (Mass.)  281; 
and  also  that  he  had  reasonable  grounds  for 
suspecting  the  person  arrested;  3  Campb. 
35;  2  Q.  B.  169;  Hall  v.  Suydam,  6  Barb. 
(N.  Y.)  84;  Winebiddle  v.  Porterfield,  9  Pa. 
137;  Wasson  v.  Canfield,  6  Blackf.  (Ind.) 
406;  Hall  v.  Hawkins,  5  Huinphr.  (Tenn.) 
357;  Wills  v.  Noyes,  12  Pick.  (Mass.)  324; 
Wilmarth  v.  Mountford,  4  Wash.  C.  C.  82, 
Fed.  Cas.  No.  17,774.  If  a  felony  has  been 
committed  and  there  is  reasonable  cause  to 
believe  that  A.  committed  it,  a  private  person 
is  justified  in  arresting  A.,  though  it  turns 
out  that  B.  was  guilty;  8  C.  &  P.  522.  See 
Russel  v.  Shuster,  8  W.  &  S.  (Pa.)  308;  2  C. 
&  P.  361,  565;  1  Benn.  &  H.  L.  Cas.  143; 
a  private  person  may  arrest  if  there  be  a 
breach  of  the  peace,  or  if  he  has  reasonable 
ground  to  believe  that  a  breach  of  the  peace 
that  has  been  committed  will  be  renewed ;  10 
CI.  &  F.  28. 

As  to  arrest  to  prevent  the  commission  of 
crimes,  see  2  B.  &  P.  260;   9  C.    P.  262. 

Where  a  private  party  attempts  to  make 
an  arrest  for  riot  on  the  order  of  a  justice 
after  offenders  have  dispersed,  he  becomes  a 
trespasser  and  may  be  resisted ;  State  v. 
Campbell,  107  N.  C.  948,  12  S.  E.  441.  Any 
person  may  arrest  an  affrayer  and  detain 
him  till  his  passion  has  cooled  and  then  de- 
liver him  to  an  officer ;  1  Cr.  M.  &  R.  762 ;  but 
not  after  the  affray  has  ceased ;  2  Q.  B.  375. 

A  private  detective,  in  pursuit  of  a  fugi- 
tive from  justice  in  another  state,  cannot 
arrest  without  a  warrant  by  merely  procur- 
ing a  policeman  to  make  the  arrest;  Harris 
v.  R.  Co.,  35  Fed.  116 ;  nor  can  such  detective 
forcibly  detain  the  defendant  to  await  a 
legal  order  of  arrest;  Harland  v.  Howard,  57 
Hun  113,  587,  10  N.  Y.  Supp.  449.  As  to  ar- 
rest by  hue  and  cry,  see  Hue  and  Cry.  As 
to  arrest  by  military  officers,  see  Luther  v. 
Borden,  7  How.   (U.  S.)  1,  12  L.  Ed.  581. 

Who  liable  to.  Any  person  is  liable  to 
arrest  for  crime,  except  ambassadors  and 
their  servants;  Cooke  v.  Gibbs,  3  Mass.  197; 
Scott  v.  Curtis,  27  Vt.  762;  U.  S.  v.  Kirby,  7 
Wall.   (U.  S.)  483,  19  L.  Ed.  278. 

It  has  been  held  that  no  legal  arrest  of  a 
voter  can  be  made  on  election  day  for  cause 
relating  to  his  suffrage;  U.  S.  v.  Small,  38 
Fed.  103. 

When  and  where  it  may  be  made.  An  ar- 
rest may  be  made  at  night  as  well  as  by  day ; 
and,  for  treason,  felony,  breach  of  the  peace, 
or  generally  for  an  indictable  offence,  on 
Sunday  as  well  as  on  other  days;  16  M.  & 
W.  172;  Pearce  v.  Atwood,  13  Mass.  347; 
Wright  v.  Keith,  24  Me.  158.  And  the  offi- 
cer may  break  open  doors  even  of  the  crim- 
inal's own  house ;  Barnard  v.  Bartlett,  10 
Cush.  (Mass.)  501,  57  Am.  Dec.  123;  Haw- 
kins v.  Com.,  14  B.  Monr.  (Ky.)  395,  61  Am. 
Dec.  147  (even  to  arrest  a  person  therein, 
not  the  owner;  Com.  v.  Reynolds,  120  Mass. 
190,  21  Am.  Rep.  510)  ;  although  he  must 
first  demand  admission  and  be  refused  after 


ARREST 


245 


ARREST 


giving  notice  of  his  business;  Russ.  Cr.  840; 
McLennon  v.  Richardson,  15  Gray  (Mass.) 
74,  77  Am.  Dec.  .':.".:;;  State  v.  Shaw,  1  Rout 
(Conn.)  134;  as  may  a  private  person  in 
fresh  pursuit,  under  circumstances  which  au- 
thorize him  to  make  an  arrest;  4  Bla.  Com. 
293. 

It  must  be  made  within  the  jurisdiction 
of  the  court  under  whose  authority  the  offi- 
cer acts;  People  v.  M.Leod,  1  Hill  (N.  Y.) 
377,  37  Am.  Dec  328;  Church  v.  Hubbart,  2 
Cra.  (U.  S.)  187,  2  L.  Ed.  249;  Bromley  v. 
Hutchhft,  8  Vt.  194,  30  Am.  Dee.  465;  Law- 
son  v.  Buzines,  3  Harr.  (Del.)  4H!;  and  ju- 
risdiction for  this  purpose  can  be  extended 
to  foreign  countries  only  by  virtue  of  treaties 
or  express  laws  of  those  countries;  1  Dish. 
Cr.  Law  §  598;  Wheat.  Int.  Law  (3d  Eng. 
ed.)  §  113;  Com.  v.  Deacon,  10  S.  &  R.  (Pa.) 
125;  Ex  parte  Holmes,  12  Vt.  631;  In  re 
Sheazle,  1  W.  &  M.  66,  Fed.  Cas.  No.  12,734; 
In  re  Metzger,  1  Barb.  (N.  Y.)  248.  And 
see,  as  between  the  states  of  the  United 
States,  Jones  v.  Van  Zandt,  5  How.  (U.  S.) 
215,  12  L.  Ed.  122;  Com.  v.  Tracy,  5  Mete. 
(Mass.)  536;  State  v.  Howell.  II.  M.  Cbarlt 
(Ga.)  120;  State  v.  Allen,  2  Humphr. 
(Tenn.)  258;  as  to  arrest  in  a  different 
county;    Sturm  v.  Potter,  41  Ind.  181. 

Manner  of  making.  An  officer  authorized 
to  make  an  arrest,  whether  by  warrant  or 
from  the  circumstances,  may  use  necessary 
force ;  2  Bish.  Cr.  Law  37 ;  Findlay  v.  Pruitt, 
9  Port.  (Ala.)  195;  State  v.  Mahon,  3  Harr. 
(Del.)  5G8;  Wright  v.  Keith,  24  Me.  158; 
Henry  v.  Lowell,  16  Barb.  (N.  Y.)  268; 
State  v.  Stalcup,  24  N.  C.  52;  4  B.  &  C.  596; 
Skidmore  v.  State,  43  Tex.  93  (but  he  may 
not  strike  except  in  self-defence)  ;  he  may 
kill  the  felon  if  he  cannot  otherwise  be 
taken;    1  Russ.  Cr.  6G5-7  (7th  Eng.  ed.)  813; 

I  Bish.  N.  Cr.  L.  §  647;  Starr  v.  U.  S.,  153  U. 
S.  614,  14  Sup.  Ct  919,  38  L.  Ed.  844 ;  North 
Carolina  v.  Gosnell,  74  Fed.  734;  U.  S.  v. 
Jailer,  2  Abb.  (U.  S.)  265,  Fed.  Cas.  No. 
15,463;  State  v.  Anderson,  1  Hill  (S.  C.) 
327;  State  v.  Rhodes,  Houst.  Cr.  Cas.  (Del.) 
476;  Cousins  v.  State,  50  Ala.  117,  20  Am. 
Rep.  290  (but  not  "in  any  case  where,  with 
diligence  and  caution,  the  prisoner  could  be 
otherwise  held";  Reneau  v.  State,  2  Lea 
(Tenn.)  720,  31  Am.  Rep.  628;  State  v.  Cole- 
man, 186  Mo.  151,  84  S.  W.  978,  69  L.  R.  A. 
381 ;  nor  if  the  original  difficulty  is  caused 
by  the  officer;  Johnson  v.  State,  58  Ark.  .".7, 
23  S.  W.  7)  ;  and  so  may  a  private  person  in 
making  an  arrest  which  he  is  enjoined  to 
make;  4  Bla.  Com.  293 ;  and  if  the  officer  or 
a  private  person  is  killed,  in  such  case  it  is 
murder.  In  making  an  arrest  for  misde- 
meanor, an  officer  can  kill  or  inflict  bodily 
harm  upon  the  person  only  when  he  is  placed 
in  like  danger;  Dilge>  v.  Com.,  88  Ky.  550, 

II  S.  W.  651,  11  Ky.  Law  Rep.  til;  Thomas 
v.  Kinkead,  55  Ark.  502,  18  S.  W.  854,  15  L. 
R.  A.  558,  29  Am.  St.  Rep.  68. 

When    an    offender    is    not    resisting    but 


fleeing,  an  officer  in  making  an  arrest  for 
a  misdemeanor  has  no  right  to  kill  or 
although  he  may  do  so  in  case  of  f< 
Head  v.  Martin,  85  Ky.  480,  :;  S.  W 
He  cannot  kill  a  fleeing  misdemeanant  to  pre- 
vent escape ;  Thomas  v.  Kb  55  Ark. 
502,  is  S.  \V.  854,  L5  L.  It.  A.  558,  29  Am.  SI 
Rep.  68;  Brown  v.  Weaver,  7>;  Miss.  7.  23 
South.  388,  42  L.  R.  A.  423,  71  Am.  St.  Rep. 
512  (where  the  sheriff's  official  boi  ■ 
were  held  liable  for  the  shooting  by  l  i-  depu- 
ty); contra,  l  Blah.  Cr.  Proc  §  161,  which 
is  criticised  by  the  Arkansas  court  (which 
in  its  turn  is  reviewed  in  a  later  edition  of 
the  same  work)  and  also  by  the  Mississippi 
court.  See  also  12  Harv.  L.  Rev.  I'll,  which 
approves  the  cases  cited  supra  and  Btrongly 
criticises  Mr.  Bishop.  If  the  officer  kill  his 
prisoner  in  such  case  he  is  guilty  of  man- 
slaughter; Reneau  v.  state,  L'  Lea  (Tenn.) 
720,  31  Am.  Rep.  626.  If  a  person  kill  an 
officer  in  resisting  an  illegal  arrest,  without 
warrant,  it  is  reduced  from  murder,  which  it 
would  have  been  if  the  officer  had  a  right  to 
arrest,  to  manslaughter,  or  it  may  be  no  of- 
fence, if  the  person  arrested  had  the  right 
to  use  such  force  as  was  necessary  in  re- 
sisting; John  Bad  Elk  v.  U.  S.,  177  T'.  S. 
529,  20  Sup.  Ct.  729,  44  L.  Ed.  874  :  Jenkins 
v.  State.  :;  (.a.  A  pp.  146,  59  S.  B.  435.  For 
unnecessarily  rough  treatment  in  making  an 
arrest  an  officer  has  been  held  liable  in  ex- 
emplary damages;  McConathy  v.  Deck.  34 
Colo.  461,  83  Pac.  135,  4  L.  R.  A.  (N.  S.)  358, 
7  Ann.  Cas.  896. 

Reading  a  warrant  and  directing  defend- 
ant to  appear,  is  not  an  arrest;  Baldwin  v. 
Murphy,  82  111.  4S5 ;  but  see  Shannon  v. 
Jones,  76  Tex.  141,  13  S.  \Y.  -177.  Arresting 
the  body  and  exhibiting  the  process  is 
enough ;   McNeice  v.   Weed,  50  Vt.   728. 

See  Justii'Iahle  Homicide;  Homicide;  Re- 
ward; full  notes  in  19  Am.  Dec.  485;  61  id. 
151. 

ARREST    OF    JUDGMENT.     The  act  of  a 

court  by  which  the  judges  refuse  to  ^rivo 
judgment  for  the  plaintiff,  because  upon  the 
face  of  the  record  it  appears  that  the  plain- 
tiff is  not  entitled  to  it. 

A  motion  for  arrest  of  judgment  must  be 
grounded  on  some  objection  arising  on  the 
face  of  the  record  itself:  state  v.  Casey,  if 
La.  Ann.  969,  11  South.  583;  McGill  v.  Roth- 
geb,  45  111.  App.  511 ;  and  no  defect  in  the 
evidence  or  Irregularity  at  the  trial  can  be 
urged  in  this  stage  of  the  proceedings.  But 
any  want  of  sufficient  certainty  in  the  in- 
dictment, as  in  the  statement  of  time  or 
place  (where  material),  of  the  person  against 
whom  the  offence  was  committed,  or  of  the 
facts  and  circumstauces  constituting  the  of- 
fence, or  otherwise,  which  Is  not  aided  by 
the  verdict,  is  a  ground  for  arresting  the 
judgment  In  criminal  cases,  an  arrest  of 
judgment  is  founded  on  exceptions  to  the 
indictment.  In  civil  cases  whatever  is  al- 
leged  in   arrest  of  judgment  must  be  such 


ARREST  OF  JUDGMENT 


246 


ARRESTMENT 


matter  as  would  on  demurrer  have  been  suf- 
ficient to  overturn  the  action  or  plea.  In  the 
applicability  of  the  rule  there  is  no  differ- 
ence between  civil  and  criminal  cases ;  Dela- 
ware Division  Canal  Co.  v.  Com.,  GO  Ta.  367, 
100  Am.  Dec.  570.  Although  the  defendant 
himself  omits  to  make  any  motion  iu  arrest 
of  judgment,  the  court,  if,  on  a  review  of  the 
case,  it  is  satisfied  that  the  defendant  has 
not  been  found  guilty  of  any  offence  in  Law, 
will  of  itself  arrest  the  judgment;  1  East 
146.  Where  a  statute  upon  which  an  indict- 
ment is  founded  was  repealed  after  the  find- 
ing of  the  indictment,  but  before  plea  plead- 
ed, the  court  arrested  the  judgment;  18  Q. 
B.  761;  Dearsl.  3.  See  also  8  Ad.  &  E.  496; 
1  Russ.  &  R.  429;  Com.  v.  Marshall,  11  Pick. 
(Mass.)  350,  22  Am.  Dec.  377;  Com.  v.  Pat- 
tee,  12  Cush.  (Mass.)  501.  If  the  judgment 
is  arrested,  all  the  proceedings  are  set  aside, 
and  judgment  of  acquittal  is  given ;  but  this 
will  be  no  bar  to  a  new  indictment;  Comyns. 
Dig.  Indictment,  N. ;    1  Bish.  Cr.  Law  998. 

Where  a  judgment  rendered  has  been  re- 
versed, and  a  new  trial  granted,  which  is 
had  upon  the  same  indictment  in  the  same 
court,  a  motion  in  arrest  of  judgment  on 
the  ground  of  a  former  acquittal  of  a  higher 
offence  charged  in  the  indictment,  is  good 
where  such  facts  appear  in  the  record  ;  Gold- 
ing  v.  State,  31  Fla.  262,  12  South.  525. 

ARRESTANDIS  BONIS  NE  DISSIPEN- 
TUR.  A  writ  for  him  whose  cattle  or  goods, 
being  taken  during  a  controversy,  are  likely 
to  be  wasted  and  consumed. 

ARRESTEE.  In  Scotch  Law.  He  in  whose 
hands  a  debt,  or  property  in  his  possession, 
has  been  arrested  by  a  regular  arrestment. 

If,  in  contempt  of  the  arrestment,  he  make  pay- 
ment of  the  sum  or  deliver  the  goods  arrested  to 
the  common  debtor,  he  is  not  only  liable  criminally 
for  breach  of  the  arrestment,  but  he  must  pay  the 
debt   again   to   the   arrester;     Erskine,   Inst.   3.   6.   6. 

ARRESTER.      In    Scotch    Law.     One   who 

sues  out  and  obtains  an  arrestment  of  his 
debtor's  goods  or  movable  obligations.  Ers- 
kine, Inst.  3.  6.  1. 

ARRESTMENT.  In  Scotch  Law.  Securing 
a  criminal's  person  till  trial,  or  that  of  a 
debtor  till  he  give  security  judicio  sisti.  The 
order  of  a  judge,  by  which  he  who  is  debtor 
in  a  movable  obligation  to  the  arrester's 
debtor  is  prohibited  to  make  payment  or  de- 
livery till  the  debt  due  to  the  arrester  be 
paid  or  secured.  Erskine,  Inst.  3.  6.  1;  1.  2. 
12. 

This  word  is  used  interchangeably  with  at- 
tachment in  the  act  for  the  protection  of  sea- 
man's wages;  TJ.  S.  R.  S.  §  4536;  which  it 
is  said  must  be  liberally  construed;  Wilder 
v.  Navigation  Co.,  211  U.  S.  239,  29  Sup.  Ct. 
58,  53  L.  Ed.  164,  15  Ann.  Cas.  127.  The 
court,  after  quoting  the  above  definition,  held 
that,  though  not  literally  so,  the  prohibition 
against  "attachment  or  arrestment"  must  ap- 


ply to  execution  after  judgment  as  well  as 
attachment  before  it. 

ARRET  (Fr.).  A  judgment,  sentence,  or 
decree  of  a  court  of  competent  jurisdiction. 

The  term  is  derived  from  the  French  law,  and  is 
used  in  Canada  and  Louisiana. 

Saisie  arret  is  an  attachment  of  property 
in  the  hands  of  a  third  person.  La.  Code  Pr. 
art.  209;   2  Low.  C.  77 ;    5  id.  198,  218. 

ARRETTED  (arrectatus,  i.  e.  ad  rectum 
vocatus) . 

Convened  before  a  judge  and  charged  with 
a  crime. 

Ad  rectum  malefactorem  is,  according  to  Bracton, 
to  have  a  malefactor  forthcoming  to  be  put  on  his 
trial. 

Imputed  or  laid  to  one's  charge;  as,  no 
folly  may  be  arretted  to  any  one  under  age. 
Bracton,  1.  3,  tr.  2,  c.  10;  Cunningham, 
Diet. 

ARRH/E.  Money  or  other  valuable  things 
given  by  the  buyer  to  the  seller,  for  the  pur- 
pose of  evidencing  the  contract ;   earnest. 

There  are  two  kinds  of  arrhse:  one  kind  given 
when  a  contract  has  only  been  proposed;  the  other 
when  a  sale  has  actually  taken  place.  Those  which 
are  given  when  a. bargain  has  been  merely  proposed, 
before  it  has  been  concluded,  form  the  matter  of 
the  contract,  by  which  he  who  gives  the  arrhas  con- 
sents and  agrees  to  lose  them,  and  to  transfer  the 
title  to  them  in  the  opposite  party,  in  case  he  should 
refuse  to  complete  the  proposed  bargain;  and  the 
receiver  of  arrhas  is  obliged  on  his  part  to  return 
double  the  amount  to  the  giver  of  them  in  case  he 
should  fail  to  complete  his  part  of  the  contract ; 
Pothier,  Contr.  de  Vente,  n.  498.  After  the  contract 
of  sale  has  been  completed,  the  purchaser  usually 
gives  arrhse  as  evidence  that  the  contract  has  been 
perfected.  Arrha?  are  therefore  denned  quod  ante 
pretium  datur,  et  fidem  fecit  contractus,  facti  toti- 
usque  pecunias  solvendw.  Id.  n.  506;  Cod.  4.  45.  2. 
3  Sand.  Just,   xxiii.     See  Earnest. 

Arrhw  sponsalitice  were  the  earnest  or  present 
given  by  one  betrothed  to  the  other  at  the  betrothal. 

ARRIER  BAN.  A  second  summons  to  join 
the  lord,  addressed  to  those  who  had  neg- 
lected the  first.  A  summons  of  the  inferiors 
or  vassals  of  the  lord.     Spelman,  Gloss. 

ARRIERE  FIEF  (Fr.).  An  inferior  fee 
granted  out  of  a  superior. 


ARRIVE.  To  come  to  a  particular  place; 
to  reach  a  particular  or  certain  place.  See 
cases  in  Leake,  Contr.,  and  in  Abb.  Diet. ; 
Thompson  v.  U.  S.,  1  Brock.  411,  Fed.  Cas. 
No.  13,985;  Meigs  v.  Ins.  Co.,  2  Cush.  (Mass.) 
439;  8  B.  &  C.  119 ;  U.  S.  v.  Open  Boat,  5 
Mas.  132,  Fed.  Cas.  No.  15,967;  Harrison  v. 
Vose,  9  How.   (U.  S.)  372,  13  L.  Ed.  179. 

ARR0GATI0N.  The  adoption  of  a  person 
sui  juris.  1  Brown,  Civ.  Law  119 ;  Dig.  1.  7. 
5;   Inst.  1.  11.  3. 

ARSER  IN  LE  MAIN  (Fr.  Burning  in 
the  hand).  The  punishment  inflicted  on 
those  who  received  the  benefit  of  clergy. 
Termes  de  la  Ley. 

ARSON  (Lat.  ardere,  to  burn).  The  ma- 
licious burning  of  the  house  of  another.  Co. 
3d  Inst.  66;   Bish.  Cr.  L.  §  415;   4  Bla.  Com. 


ARSON 


247 


ARSON 


220;  Curran's  Case,  7  Gratt  (Va.)  619; 
Ritcbey  v.  State,  7  Blaekf.  (Ind.)  108;  Mary 
v.  State,  24  Ark.  44,  81  Am.  Dec.  60 ;  1  Leach, 
Cr.  Cas.  218;  People  v.  Fisher,  51  Cal.  319; 
Young  v.  Coin.,  12  Bush  (Ky.)  243;  but  it 
is  not  arson  to  demolish  the  house  first  and 
then  burn  the  material;  Mulligan  v.  State,  25 
Tex.  App.  199,  7  S.  W.  664,  8  Am.  St.  Rep. 
435. 

In  some  states  by  statute  there  are  degrees 
of  arson.  The  house,  or  some  part  of  it, 
however  small,  must  be  consumed  by  fire; 
9  C.  &  P.  45;  Com.  v.  Van  Schaack,  16  Mass. 
105;  State  v.  Mitchell,  27  N.  C.  350.  Where 
the  house  is  simply  scorched  or  smoked  and 
the  fire  is  not  communicated  to  the  building; 
Woolsey  v.  State,  30  Tex.  App.  340,  17  S.  W. 
546;  or  where  parts  of  a  house  already  de- 
tached are  burned;  Mulligan  v.  State,  25 
Tex.  App.  199,  7  S.  W.  0(54,  8  Am.  St  Rep. 
435 ;  it  is  not  arson ;  nor  where  a  house  was 
blown  up  by  dynamite  and  splinters  were 
torn  from,  the  roof  and  fired  by  the  explo- 
sion; Landers  v.  State,  39  Tex.  Cr.  R.  671, 
47  S.  W.  1008;  12  Ilarv.  L.  Rev.  433.  The 
question  of  burning  is  one  of  fact  for  the 
jury;  1  Mood.  Cr.  Cas.  39S;  Com.  v.  Betton, 
5  Cush.  (Mass.)  427. 

It  must  be  another's  house;  1  Bish.  Cr. 
Law  §  3S9;  but  alitor  under  the  N.  H.  stat- 
ute; State  v.  Hurd,  51  N.  H.  176;  but  if  a 
man  set  fire  to  his  own  house  with  a  view  to 
burn  his  neighbor's,  and  does  so,  it  is,  at 
least,  a  great  misdemeanor ;  1  Hale,  PI.  Cr. 
~>r>s;  W.  Jones  351;  Bloss  v.  Tobey,  2  Pick. 
(Mass.)  325;  Erskine  v.  Com.,  8  Gratt.  (Va.) 
624.  See  People  v.  Henderson,  1  Park.  Cr. 
Cas.  (N.  Y.)  560;  People  v.  Van  Blarcum,  2 
Johns.  (N.  Y.)  105;  Ritcbey  v.  State,  7 
Blaekf.  (Ind.)  168;  and  under  statutes  in 
some  states  a  tenant  who  sets  fire  to  a  house 
occupied  by  himself  is  guilty  of  the  crime; 
State  v.  Moore,  61  Mo.  270 ;  People  v.  Simp- 
son, 50  Cal.  304.  If  one  sets  fire  to  a  school- 
house  with  the  intention  of  burning  an  ad- 
joining dwelling,  which  actually  happens,  he 
is  guilty  of  arson;  Combs  v.  Com.,  93  Ky. 
313,  20  S.  W.  221. 

The  house  of  another  must  be  burned,  to 
constitute  arson  at  common  law;  but  the 
term  "house"  comprehends  not  only  the  very 
mansion-house,  but  all  out-houses  which  are 
parcel  thereof,  though  not  contiguous  to  it, 
nor  under  the  same  roof,  such  as  the  barn, 
stable,  cow-house,  sheep-house,  dairy-house, 
mill-house,  and  the  like,  being  within  the 
curtilage,  or  same  common  fence,  as  the  man- 
sion itself;  4  C.  &  P.  245;  State  v.  McGow- 
an,  20  Conn.  245,  52  Am.  Dec.  336;  People 
v.  Butler.  16  Johns.  (N.  Y.)  203;  State  v. 
Sandy,  25  N.  C.  570;  Chapman  v.  Com.,  5 
Whart  (Pa.)  127,  34  Am.  Dec.  565;  Stevens 
v.  Com.,  4  Leigh  (Va.)  683;  Com.  v.  Posey, 
4  Call  (Va.)  109.  2  Am.  Dec.  560;  State  v. 
Roper,  88  N.  C.  050;  Quinn  v.  People,  71  N. 
Y.  501,  27  Am.  Rep.  87;  Ratekln  v.  Slate,  26 
Ohio  St.  420.    And  it  has  also  been  said  that 


the  burning  of  a  barn,  though  no  part  of  the 
mansion,  if  it  has  corn  or  hay  in  it,  is  ( 
at  common  law ;    l  Bale,  P. 
P.  245;    Sampson  v.  Com.,  5  (Pa.) 

385;   contra,  Creed  v.  P<  ople,  81  in.  '■■ 
Massachusetts,     the    statute     i  i     the 

dwellini  strictly;    Com.   v.  i 

Cush.  (Mass.)  17s.  Where  a  p: 
fire  to  his  cell,  In  order  to  effe  t  an  • 
hold,  not  arson  ;  People  v.  Cotteral,  Is.  Johns. 
(N.  Y.)  115;  but  sec  l  Whart  Cr.  L. 
ed.)  §  829;  Luke  v.  State,  49  Ala.  30,  20  Am. 
Rep.  269;  Willis  v.  state,  32  Tex.  Cr.  R. 
534,  25  S.  W.  123.  The  burning  must  have 
been  both  malicious  and  wilful;  1  Bishop, 
Cr.  L.  §  259;  Maxwell  v.  State,  68  Miss.  339, 
8  South.  540.  And  generally,  if  the  act  is 
proved  to  have  been  done  wilfully,  it  may  be 
inferred  to  have  been  done  maliciously,  un- 
less the  contrary  is  proved;  1  Russ.  &  R.  Cr. 
Cas.  26.  On  a  charge  of  arson  for  setting 
fire  to  a  mill,  an  intent  to  injure  or  defraud 
the  mill-owners  will  be  conclusively  inferred 
from  the  wilful  act  of  firing;  2  B.  &  C.  264. 
But  this  doctrine  can  only  arise  where  the 
act  is  wilful,  and  therefore,  if  the  lire  ap- 
pears to  be  the  result  of  accident,  the  party 
who  is  the  cause  of  it  will  not  be  liable; 
Jenkins  v.  State.  53  Ga.  33,  31  Am.  Rep.  255; 
McDonald  v.  People,  47  111.  533. 

In  some  states  by  statute  a  wife  may  be 
guilty  of  arson  by  burning  a  husband's  prop- 
erty ;  Emig  v.  Daum,  1  Ind.  App.  140,  27  N. 
E.  322. 

It  is  a  felony  at  common  law,  and  origi- 
nally punishable  with  death;  Co.  3d  Inst.  •  ;<;; 
2  East  PI.  Cr.  1015;  Sampson  v.  Com.,  5  W. 
&  S.  (Pa.)  3S5;  State  v.  Seaborn,  15  N.  C. 
305;  but  this  is  otherwise  by  statute;  State 
v.  Bosse,  8  Rich.  (S.  C.)  27C :  Com.  v.  Posey, 
4  Call  (Va.)  109,  2  Am.  Dec.  560;  U.  S.  v. 
White,  5  Cra.  C.  C.  73,  Fed.  Cas.  No.  16,67a 
If  homicide  result,  the  act  is  murder;  State 
v.  Cooper,  13  N.  J.  L.  361,  25  Am.  Dec 
1  Bish.  Cr.  Law  361. 

It  is  not  an  indictable  offence  at  common 
law  to  burn  one's  own  house  to  defraud  in- 
surers; 1  Whart.  Cr.  L.  (9tb  ed.  i  $  843; 
otherwise  in  most  states  by  statute:  State  v. 
Hurd,  51  N.  H.  17<i;  Shepherd  v.  People,  1!> 
N.  Y.  537;  People  v.  Schwartz.  32  Cal.  I60i 
See  Crimes. 

ARSURA.  The  trial  of  money  by  beating 
it  after  it  was  coined.     Now  obsolete. 

ART.  In  Patent  Law.  A  principle  put  in 
practice  and  applied  to  some  art.  machine, 
manufacture,  or  composition  of  matter. 
Earle  v.  Sawyer.  4  .Mas.  1,  Fed  Cas.  No.  4,- 
241.     See  COPYKTQH  I' :    l'.\ 

Under  the  tariff  laws  an  artist's  copies  of 
antique  masterpieces  are  works  of  art  of 
as  high  a  grade  as  those  exe  ated  by  the 
same  hand  from  original  models  of  modern 
sculptors:  Tutton  v.  Viti,  108  U.  S.  312,  2 
Sup.  Ct.  687,  27  I..  Ed.  7^7. 

The  word  statuary  as  used  in  the  import 


ART 


248 


ARTICLES 


laws  includes  professional  productions  of 
statuary  or  of  a  sculptor  only ;  U.  S.  R.  S. 
478.  This  definition  is  held  to  embrace  such 
works  of  art  as  are  the  result  of  the  artist's 
own  creation  or  are  copies  of  them  made  un- 
der his  supervision,  as  distinguished  from 
the  productions  of  the  manufacturer  or  me- 
chanic. 

For  most  practical  purposes  works  of  art 
may  be  divided  into  four  classes:  1.  The 
fine  arts  properly  so  called,  intended  solely 
for  ornamental  purposes  and  including  paint- 
ings in  oil  and  water,  upon  canvas,  plaster 
or  other  material,  and  original  statuary  of 
marble,  bronze,  or  stone.  2.  Minor  objects 
of  art  intended  also  for  ornamental  purposes, 
such  as  statuettes,  vases,  drawings,  etchings 
and  articles  whicb  pass  under  the  general 
name  of  bric-a-brac,  and  are  susceptible  of 
an  indefinite  number  of  reproductions  from 
the  original.  3.  Objects  of  art  which  serve 
primarily  an  ornamental,  and  incidentally  a 
useful  purpose,  such  as  painted  or  stained 
glass  windows,  tapestry,  paper  hangings,  etc. 
4.  Objects  primarily  designed  for  a  useful 
purpose,  but  made  ornamental  to  gratify  the 
taste,  such  as  ornamented  clocks,  the  higher 
grade  of  carpets,  curtains,  gas  fixtures  and 
household  and  table  furniture;  U.  S.  v.  Per- 
ry, 146  U.  S.  74,  13  Sup.  Ct.  26,  36  L.  Ed.  890. 
No  special  favor  is  extended  by  congress  to 
any  of  these  classes  except  the  first,  which 
is  alone  recognized  as  belonging  to  the  do- 
main of  high  art ;  id.,  where  stained  glass 
windows  were  held  not  to  be  exempt  from 
duty  as  paintings  imported  for  the  use  of  a 
religious  society  and  not  intended  for  sale. 

Under  the  tariff  act  of  1897,  plaster  casts 
of  clay  models,  though  gilded  and  painted 
and  produced  in  unlimited  quantities,  are 
"casts  of  sculpture"  and  entitled  to  free  en- 
try when  specially  imported  in  good  faith 
for  the  use  and  by  the  order  of  any  society 
established  solely  for  religious,  philosophical, 
scientific,  educational  or  literary  purposes; 
Benziger  v.  U.  S.,  192  U.  S.  38,  24  Sup.  Ct. 
189,  48  L.  Ed.  331. 

ARTICLED  CLERK.  A  person  bound  by 
indenture  to  a  solicitor  that  he  may  acquire 
a  knowledge  pertaining  to  that  business. 

ARTICLES  (Lat.  articuius,  a  joint).  Di- 
visions of  a  written  or  printed  document  or 
agreement. 

A  specification  of  distinct  matters  agreed 
upon  or  established  by  authority  or  requir- 
ing judicial  action. 

The  fundamental  idea  of  an  article  is  that  of  an 
object  comprising  some  integral  part  of  a  complex 
whole.  See  Worcester,  Diet.  The  term  may  be  ap- 
plied, for  example,  to  a  single  complete  question  in 
a  series  of  interrogatories ;  the  statement  of  the 
undertakings  and  liabilities  of  the  various  parties 
to  an  agreement  in  any  given  event,  where  several 
contingencies  are  provided  for  in  the  same  agree- 
ment; a  statement  of  a  variety  of  powers  secured 
to  a  branch  of  government  by  a  constitution ;  a 
statement  of  particular  regulations  in  reference  to 
one  general  subject  of  legislation  in  a  system  of 
laws;   and  in  many  other  instances  resembling  these 


In  principle.  It  is  also  used  in  the  plural  of  the 
subject  made  up  of  these  separate  and  related  ar- 
ticles as  articles  of  agreement,  articles  of  war,  the 
different  divisions  generally  having,  however,  some 
relation  to  each  other,  though  not  necessarily  a  de- 
pendence upon  each  other. 

In  Chancery  Practice.  A  formal  written 
statement  of  objections  to  the  credibility  of 
witnesses  in  a  cause  in  chancery,  filed  by  a 
party  to  the  proceedings  after  the  deposi- 
tions have  been  taken  and  published. 

The  object  of  articles  is  to  enable  the 
party  filing  them  to  introduce  evidence  to 
discredit  the  witnesses  to  whom  the  objec- 
tions apply,  where  it  is  too  late  to  do  so  in 
any  other  manner;  1  Dan.  Ch.  Pr.  (6th  Am. 
ed.)  *957;  and  to  apprize  the  party  whose 
witnesses  are  objected  to  of  the  nature  of  the 
objections,  that  he  may  be  prepared  to  meet 
them;    1  Dan.  Ch.  Pr.  (6th  Am.  ed.)  *958. 

Upon  filing  the  articles,  a  special  order  is 
obtained  to  take  evidence;  2  Dick.  Ch.  532; 
which  is  sparingly  granted;  1  Beam.  Ord. 
187. 

The  interrogatories  must  be  so  shaped  as 
not  to  call  for  evidence  which  applies  direct- 
ly to  facts  in  issue ;  Wood  v.  Mann,  2  Siunn. 
316,  Fed.  Cas.  No.  17,953;  Gass  v.  Stinson, 
2  Sumn.  605,  Fed.  Cas.  No.  5,261;  Troup  v. 
Sherwood,  3  Johns.  Ch.  (N.  Y.)  558;  10  Ves. 
Ch.  49.  The  objections  can  be  taken  only  to 
the  credit  and  not  to  the  competency  of  the 
witnesses ;  3  Atk.  643;  Troup  v.  Sherwood,  3 
Johns.  Ch.  (N.  Y.)  558;  and  the  court  are 
to  hear  all  the  evidence  read  and  judge  of  its 
value ;  2  Ves.  Ch.  219.  See,  generally,  10 
Ves.  Ch.  49;  2  Ves.  &  B.  207;  1  Sim.  &  S. 
467.  / 

In  Ecclesiastical  Law.  A  complaint  in  the 
form  of  a  libel  exhibited  to  an  ecclesiastical 
court. 

ARTICLES  OF  AGREEMENT.  A  written 
memorandum  of  the  terms  of  an  agreement. 

They  may  relate  either  to  real  or  personal 
estate,  or  both,  and  if  in  proper  form  will 
create  an  equitable  estate  or  trust  such  that 
a  specific  performance  may  be  had  in  equity. 

The  instrument  should  contain  a  clear  and 
explicit  statement  of  the  names  of  the  par~ 
ties,  with  their  additions  for  purposes  of  dis* 
tinction,  as  well  as  a  designation  as  parties 
of  the  first,  second,  etc.,  part;  the  subject- 
matter  of  the  contract,  including  the  time, 
place,  and  more  important  details  of  the  man- 
ner of  performance;  the  promises  to  be  per- 
formed by  each  party;  the  date,  which 
should  be  truly  stated.  It  should  be  signed 
by  the  parties  or  their  agents.  When  signed 
by  an  agent,  the  proper  form  is,  A  B,  by  his 
agent  [or  attorney  in  fact],  C  D. 

ARTICLES  OF  ASSOCIATION,  OR  OF 
INCORPORATION.  The  certificate  filed  in 
conformity  with  a  general  law,  by  persons 
who  desire  to  become  a  corporation,  setting 
forth  the  rules  and  conditions  upon  which 
the  association  or  corporation  is  founded. 
Cent.  Diet 


ARTICLES  OF  CONFEDERATION      249       ARTICLES  OF  CONFEDERATION 


ARTICLES  OF  CONFEDERATION.  The 
title  of  the  compact  which  was  made  by  the 
thirteen  original  slates  of  the  United  States 
of  America.     Story,  Const.  215,  223. 

The  full  title  was  "Articles  of  Confedera- 
tion and  perpetual  union  between  the  states 
of  New  Hampshire,  Massachusetts  Bay, 
Rhode  Island  and  Providence  Plantations, 
Connecticut,  New  York,  New  Jersey,  Penn- 
sylvania, Delaware,  Maryland,  Virginia, 
North  Carolina,  South  Carolina,  and  Geor- 
gia." It  was  adopted  and  went  into  force  on 
the  first  day  of  March,  1781,  and  remained 
as  the  supreme  law  until  the  first  Wednes- 
day of  March,  1789;  Owings  v.  Speed,  5 
Wheat  (U.  S.)  420,  5  L.  Ed.  124. 

The  accompanying  analysis  of  this  important  in- 
strument is  from  Judge  Story's  Commentaries  on 
the  Constitution  of  the   United   States. 

The  style  of  the  confederacy  was,  by  the  first  ar- 
ticle, declared  to  be,  "The  United  States  of  Amer- 
ica." The  second  article  declared  that  each  state 
retained  its  sovereignty,  freedom,  and  independence, 
and  every  power,  jurisdiction,  and  right  which 
was  not  by  this  confederation  expressly  delegated 
to  the  United  States,  in  congress  assembled.  The 
third  article  declared  that  the  states  severally  en- 
tered into  a  firm  league  of  friendship  with  each 
other,  for  their  common  defence,  the  security  of 
their  liberties,  and  their  mutual  and  general  wel- 
fare; binding  themselves  to  assist  each  other 
against  all  force  offered  to  or  attacks  made  upon 
them,  or  any  of  them,  on  account  of  religion,  sover- 
eignty, trade,  or  any  other  pretence  whatever.  The 
fourth  article  declared  that  the  free  inhabitants  of 
each  of  the  states  (vagabonds  and  fugitives  from 
justice  excepted)  should  be  entitled  to  all  the  priv- 
ileges of  free  citizens  in  the  several  states ;  that 
the  people  of  each  state  should  have  free  ingress 
and  regress  to  and  from  any  other  state,  and  should 
enjoy  all  the  privileges  of  trade  and  commerce,  sub- 
ject to  the  same  duties  and  restrictions  as  the  in- 
habitants; that  fugitives  from  justice  should,  upon 
the  demand  of  the  executive  of  the  state  from 
which  they  fled,  be  delivered  up ;  and  that  full 
faith  and  credit  should  be  given,  in  each  of  the 
states,  to  the  records,  acts,  and  judicial  proceedings 
of  the  courts  and  magistrates  of  every  other  state. 

Having  thus  provided  for  the  security  and  inter- 
course of  the  states,  the  next  article  (5th)  provided 
for  the  organization  of  a  general  congress,  declar- 
ing that  delegates  should  be  chosen  in  such  manner 
as  the  legislature  of  each  state  should  direct;  to 
meet  in  congress  on  the  first  Monday  in  every  year, 
with  a  power,  reserved  to  each  state,  to  recall  any 
or  all  of  the  delegates,  and  to  send  others  in  their 
stead.  No  state  was  to  be  represented  in  congress 
by  less  than  two  nor  more  than  seven  members. 
No  delegate  was  eligible  for  more  than  three  in  any 
term  of  six  years  ;  and  no  delegate  was  capable  of 
holding  office  of  emolument  under  the  United  States. 
Each  state  was  to  maintain  its  own  delegates,  and, 
in  determining  questions  in  congress,  was  to  have 
one  vote.  Freedom  of  speech  and  debate  in  con- 
gress was  not  to  be  impeached  or  questioned  in  any 
other  place;  and  the  members  were  to  be  pro- 
tected from  arrest  and  imprisonment  during  the 
time  of  their  going  to  and  from  and  attendance 
on  congress,  except  for  treason,  felony,  or  breach 
of  the  peace. 

By  subsequent  articles,  congress  was  invested 
with  the  sole  and  exclusive  right  and  power  of  de- 
termining on  peace  and  war,  unless  in  case  of  an 
Invasion  of  a  state  by  enemies,  or  an  imminent  dan- 
ger of  an  Invasion  by  Indians;  of  sending  and  re- 
ceiving ambassadors ;  entering  into  treaties  and 
alliances,  under  certain  limitations  as  to  treaties  of 
commerce;  of  establishing  rules  for  deciding  all 
cases  of  capture  on  land  and  water,  and  for  the 
division   and   appropriation   of  prizes   taken  by   the 


land  or  naval  forces,  in  the  service  of  the  i 
States ;  of  granting  letters  of  marque  and  r. 
in  times  of  peace;  of  appointing  courts  f 
trial  of  piracies  and  felonies  committed  on  tb> 
seas  ;  and  of  establishing  courts  for  receiving  and 
finally  determining  appeals  in  all  cases  of  ca; 

Congress  was  also  invested  with  power  to  decide 
in  the  last  resort,  on  appeal,  all  disputes  and  differ- 
ences between  two  or  more  states  concerning  bound- 
ary, jurisdiction,  or  any  other  cause  whatsoever; 
and  the  mode  of  exercising  that  authority  was 
specially  prescribed.  And  all  controversies  con- 
cerning the  private  right  of  soil,  claimed  under 
different  grants  of  two  or  more  states  before  the 
settlement  of  their  jurisdiction,  were  to  be  finally 
determined  in  the  same  manner,  upon  the  petition 
of  either  of  the  grantees.  But  no  state  was  to  be 
deprived  of  territory  for  the  benefit  of  the  United 
States. 

Congress  was  also  Invested  with  the  sole  and  ex- 
clusive right  and  power  of  regulating  the  alloy  and 
value  of  coin  struck  by  their  own  authority,  or  that 
of  the  United  States;  of  fixing  the  standard  of 
weights  and  measures  throughout  the  United  States  ; 
of  regulating  the  trade  and  managing  all  affairs 
with  the  Indians,  not  members  of  any  of  the  states, 
provided  that  the  legislative  right  of  any  state 
within  its  own  limits  should  not  be  infringed 
or  violated;  of  establishing  and  regulating  post- 
offices  from  one  state  to  another,  and  exacting 
postage  to  defray  the  expenses;  of  appointing  all 
officers  of  the  land  forces  in  the  service  of  the 
United  States,  except  regimental  officers ;  of  ap- 
pointing all  officers  of  the  naval  forces,  and  com- 
missioning all  officers  whatsoever  in  the  service  of 
the  United  States;  and  of  making  rules  for  the 
government  and  regulation  of  the  land  and  naval 
forces,   and  directing   their   operations. 

Congress  was  also  invested  with  authority  to  ap- 
point a  committee  of  the  states  to  sit  in  the  recess 
of  congress,  and  to  consist  of  one  delegate  from  each 
state,  and  other  committees  and  civil  officers,  to 
manage  the  general  affairs  under  their  direction;  to 
appoint  one  of  their  number  to  preside,  but  no  per- 
son was  to  serve  in  the  office  of  president  more  than 
one  year  in  the  term  of  three  years  ;  to  ascertain 
the  necessary  sums  for  the  public  service,  and  to 
appropriate  the  same  for  defraying  the  public  ex- 
penses; to  borrow  money  and  emit  bills  on  credit  of 
the  United  States;  to  build  and  equip  a  navy;  to 
agree  upon  the  number  of  land  forces,  and  make 
requisitions  upon  each  state  for  its  quota,  in  pro- 
portion to  the  number  of  white  inhabitants  in  such 
state.  The  legislatures  of  each  state  were  to  ap- 
point the  regimental  officers,  raise  the  men,  and 
clothe,  arm,  and  equip  them  at  the  expense  of  the 
United   States. 

Congress  was  also  invested  with  power  to  adjourn 
for  any  time  not  exceeding  six  months,  and  to  any 
place  within  the  United  States;  and  provision  was 
made  for  the  publication  of  its  journal,  and  for  en- 
tering the  yeas  and  nays  thereon  when  desired  by 
any  delegate. 

Such  were  the  powers  confided  in  congress.  But 
even  these  were  greatly  restricted  in  their  exercise  ; 
for  it  was  expressly  provided  that  congress  should 
never  engage  in  a  war ;  nor  grant  letters  of  marque 
or  reprisal  in  time  of  peace;  nor  enter  into  any 
treaties  or  alliances;  nor  coin  money  or  regulate 
the  value  thereof;  nor  ascertain  the  sums  or  ex- 
penses necessary  for  the  defence  and  welfare  of  the 
United  States;  nor  emit  bills;  nor  borrow  money 
on  the  credit  of  the  United  States;  nor  appropriate 
money;  nor  agree  upon  the  number  of  vessels  of 
war  to  be  built,  or  purchased,  or  the  number  of 
land  or  sea  forces  to  be  raised  ;  nor  appoint  a  com- 
mander-in-chief of  the  army  or  navy;  unless  nine 
states  should  assent  to  the  same.  And  no  question 
on  any  other  point,  except  for  adjourning  from  day 
to  day,  was  to  be  determined,  except  by  vote  of  the 
majority  of  the  states. 

The  committee  of  the  states,  or  any  nine  of  them, 
were  authorized  in  the  recess  of  congress  to  exercise 
such  powers  as  congress,  with  the  assent  of  nine 
states,  should  think  it  expedient  to  vest  them  with, 
except   powers    for   the   exercise    of    which,    by    th*> 


ARTICLES  OF  CONFEDERATION      250         ARTICLES  OF  IMPEACHMENT 


articles  of  confederation,  the  assent  of  nine  states 
was    required,    which    could  not   be   thus    delegated. 

It  was  further  provided  that  all  bills  of  credit, 
moneys  borrowed,  and  debts  contracted  by  or  under 
the  authority  of  congress  before  the  confederation, 
should  be  a  charge  against  the  United  States  ;  that 
when  land  forces  were  raised  by  any  state  for  the 
common  defence,  all  officers  of  or  under  the  rank  of 
colonel  should  be  appointed  by  the  legislature  of  the 
state,  or  in  such  manner  as  the  state  should  direct ; 
and  all  vacancies  should  be  filled  up  in  the  same 
manner  ;  that  all  charges  of  war,  and  all  other  ex- 
penses for  the  common  defence  or  general  welfare, 
should  be  defrayed  out  of  a  common  treasury, 
which  should  be  supplied  by  the  several  states,  in 
proportion  to  the  value  of  the  land  within  each  state 
granted  or  surveyed,  and  the  buildings  and  im- 
provements thereon,  to  be  estimated  according  to  the 
mode  prescribed  by  congress;  and  the  taxes  for 
that  proportion  were  to  be  laid  and  levied  by  the 
legislatures  of  the  states  within  the  time  agreed 
upon   by  congress. 

Certain  prohibitions  were  laid  upon  the  exercise 
of  powers  by  the  respective  states.  No  state,  with- 
out the  consent  of  the  United  States,  could  send  an 
embassy  to,  or  receive  an  embassy  from,  or  enter 
Into  any  treaty  with  any  king,  prince,  or  state  ;  nor 
could  any  person  holding  any  office  under  the 
United  States,  or  any  of  them,  accept  any  present, 
emolument,  office,  or  title  from  any  foreign  king, 
prince,  or  state;  nor  could  congress  itself  grant  any 
title  of  nobility.  No  two  states  could  enter  into  any 
treaty,  confederation,  or  alliance  with  each  other, 
without  the  consent  of  congress.  No  state  could  lay 
any  imposts  or  duties  which  might  interfere  with 
any  proposed  treaties.  No  vessels  of  war  were  to 
be  kept  up  by  any  state  in  time  of  peace,  except 
deemed  necessary  by  congress  for  its  defence  or 
trade  ;  nor  any  body  of  forces,  except  as  should  be 
deemed  requisite  by  congress  to  garrison  its  forts 
and  necessary  for  its  defence.  But  every  state  was 
required  always  to  keep  up  a  well-regulated  and 
disciplined  militia,  sufficiently  armed  and  accoutred, 
ajjd  to  be  provided  with  suitable  field-pieces,  and 
tents,  and  arms,  and  ammunition,  and  camp  equi- 
page. No  state  could  engage  in  war  without  the 
consent  of  congress,  unless  actually  invaded  by 
enemies  or  in  danger  of  invasion  by  the  Indians. 
Nor  could  any  state  grant  commissions  to  any  ships 
of  war,  nor  letters  of  marque  and  reprisal  except 
after  a  declaration  of  war  by  congress,  unless  such 
state  were  infested  by  pirates,  and  then  subject  to 
the  determination  of  congress.  No  state  could  pre- 
vent the  removal  of  any  property  imported  into  any 
state  to  any  other  state,  of  which  the  owner  was  an 
inhabitant.  And  no  imposition,  duties,  or  restric- 
tion could  be  laid  by  any  state  on  the  property  of 
the  United  States  or  of  either  of  them. 

There  was  also  provision  made  for  the  admission 
of  Canada  into  the  Union,  and  of  other  colonies, 
with  the  assent  of  nine  states.  And  it  was  finally 
declared  that  every  state  should  abide  by  the  deter- 
minations of  congress  on  all  questions  submitted  to 
it  by  the  confederation;  that  the  articles  should  be 
inviolably  observed  by  every  state  ;  that  the  union 
should  be  perpetual  ;  and  that  no  alterations  should 
be  made  in  any  of  the  articles,  unless  agreed  to  by 
congress  and  confirmed  by  the  legislatures  of  every 
state. 

ARTICLES  OF  IMPEACHMENT.  Accusa- 
tions in  writing  which  form  the  basis  of  a 
trial  by  impeachment. 

They  are  called  by  Blackstone  a  kind  of  bills  of 
indictment,  and  perform  the  same  office  which  an 
indictment  does  in  a  common  criminal  case.  They 
do  not  usually  pursue  the  strict  form  and  accuracy 
of  an  indictment,  but  are  sometimes  quite  general 
in  the  form  of  the  allegations.  Woodd.  Lect.  605; 
Sto.  Const.  5th  ed.  §  807;  Com.  Dig.  Parliament,  L. 
21;  Foster,  Cr.  L.  389.  They  should,  however,  con- 
tain so  much  certainty  as  to  enable  a  party  to  put 
himself  on  the  proper  defence,  and  in  case  of  an  ac- 
quittal to  avail  himself  of  it  as  a  bar  to  another 
impeachment.     Additional  articles  may  perhaps  be 


exhibited  at  any  stage  of  the  proceedings ;    Rawle, 
Const.  216. 

The  answer  to  articles  of  impeachment  need  not 
observe  great  strictness  of  form;  and  it  may  con- 
tain arguments  as  well  as  facts.  It  is  usual  to  give 
a  full  and  particular  answer  to  each  article  of  the 
accusation  ;  Story,  Const.  5th  ed.  §  810;  Jeff.  Man. 
§  53.     See   Impeachment. 

ARTICLES  OF  PARTNERSHIP.  A  writ- 
ten agreement  by  which  the  parties  enter  in- 
to a  partnership  upon  the  conditions  therein 
mentioned. 

These  are  to  be  distinguished  from  agreements  to 
enter  into  a  partnership  at  a  future  time.  By  arti- 
cles of  partnership  a  partnership  is  actually  estab- 
lished; while  an  agreement  for  a  partnership  is 
merely  a  contract,  which  may  be  taken  advantage 
of  in  a  manner  similar  to  other  contracts.  Where 
an  agreement  to  enter  into  a  partnership  is  broken, 
an  action  lies  at  law  to  recover  damages;  and 
equity,  in  some  cases,  to  prevent  frauds  or  mani- 
festly mischievous  consequences,  will  enforce  spe- 
cific performance;  Story,  Partn.  §  109;  3  Atk.  383; 
1  Swanst.  513,  n.  ;  Lindl.  Partn.  *475 ;  17  Beav. 
294  ;  but  not  when  the  partnership  may  be  immedi- 
ately dissolved ;  9  Ves.  Ch.  360.  Specific  perform- 
ance was  decreed  in  Whitworth  v.  Harris,  40  Miss. 
483;  Birchett  v.  Boiling,  5  Munf.  (Va.)  442;  and 
refused  in  Wadsworth  v.  Manning,  4  Md.  60.  See 
8   Beav.   129;    30  id.   376. 

The  instrument  should  contain  the  names 
of  the  contracting  parties  severally  set  out; 
the  agreement  that  the  parties  do  by  the 
instrument  enter  into  a  partnership,  express- 
ed in  such  terms  as  to  distinguish  it  from  a 
covenant  to  enter  into  partnership  at  a  sub- 
sequent time ;  the  date,  and  necessary  stip- 
ulations, some  of  the  more  common  of  which 
follow. 

The  commencement  of  the  partnership 
should  be  expressly  provided  for.  The  date 
of  the  articles  is  the  time,  when  no  other 
time  is  fixed  by  them ;  5  B.  &  C.  108 ;  Lindl. 
Part.  (2d  Am.  Ed.)  *201,  *412;  Ingraham  v. 
Foster,  31  Ala.  123 ;  Beaman  v.  Whitney,  20 
Me.  413;  Everit  v.  Watts,  10  Paige  (N.  Y.) 
82;  if  not  dated,  parol  evidence  is  admis- 
sible to  show  that  they  were  not  intended  to 
take  effect  at  the  time  of  their  execution; 
17  C.  B.  625. 

The  duration  of  the  partnership  should  be 
stated.  It  may  be  for  life,  for  a  limited  pe- 
riod of  time,  or  for  a  limited  number  of  ad- 
ventures. When  a  term  is  fixed,  it  endures 
until  that  period  has  elapsed ;  when  no  term 
or  limitation  is  fixed,  the  partnership  may 
be  dissolved  at  the  will  of  either  partner; 
17  Ves.  298;  Carlton  v.  Cummins,  51  Ind. 
478 ;  McElvey  v.  Lewis,  76  N.  Y.  373 ;  Lindl. 
Partn.  *121,  *413 ;  see  Williams  v.  Ins.  Co., 
150  Pa.  20,  24  Atl.  346.  Dissolution  follows 
immediately  and  inevitably  on  the  death  of 
a  partner ;  Hoard  v.  Clum,  31  Minn.  186,  17 
N.  W.  275 ;  but  provision  may  be  made  for 
the  succession  of  the  executors  or  adminis- 
trators or  a  child  or  children  of  a  deceased 
partner  to  his  place  and  rights;  Burwell  v. 
Cawood,  2  How.  (U.  S.)  560,  11  L.  Ed.  378; 
Powell  v.  Hopson,  13  La.  Ann.  626;  9  Ves. 
Ch.  500.  Where  a  provision  is  made  for  a 
succession  by  appointment,  and  the  partner 


ARTICLES  OF  PARTNERSHIP 


251 


ARTICLES  OF  PARTNERSHIP 


dies  without  appointing,  his  executors  or  ad- 
ministrators may  continue  the  partnership 
or  not,  at  their  option  ;  1  McClel.  &  Y.  579  ; 
Coll.  Ch.  157.  A  continuance  of  the  part- 
nership beyond  the  period  fixed  for  its  ter- 
mination will,  in  the  absence  of  circumstanc- 
es showing  intent,  be  implied  to  be  upon  the 
basis  of  the  old  articles;  U.  S.  Bank  v.  Bin- 
ney,  5  Mas.  17G,  185,  Fed.  Cas.  No.  10,791 ;  15 
Ves.  Ch.  218;  1  Moll.  Ch.  4GG ;  but  it  will 
be  considered  as  at  will,  and  not  as  renewed 
for  a  further  definite  period  ;    17  Yes.  307. 

Persons  dealing  with  a  partnership  are 
not  bound  by  any  stipulation  as  to  its  dis- 
solution or  continuance,  unless  they  have  ac- 
tual notice  before  making  contracts  with  the 
firm;  St.  Louis  Electric  Lamp  Co.  v.  Mar- 
shall, 78  Ga.  108,  1  S.  E.  430;  Central  Nat. 
Bank  v.  Frye,  148  Mass.  498,  20  N.  E.  325. 

The  nature  of  the  business  and  the  place 
of  carrying  it  on  should  be  very  carefully 
and  exactly  specified.  Courts  of  equity 
will  grant  an  injunction  when  one  or  more 
of  the  partners  attempt,  against  the  wishes 
of  one  or  more  of  them,  to  extend  such  busi- 
ness beyond  the  provision  contained  in  the 
articles ;  Story,  Partn.  §  193 ;  Abbot  v.  John- 
son, 32  N.  H.  9;  Livingston  v.  Lynch,  4 
Johns.  Ch.  (N.  Y.)  573. 

The  name  of  the  firm  should  be  expressed. 
The  members  of  the  partnership  are  required 
to  use  the  name  thus  agreed  upon,  and  a  de- 
parture from  it  will  make  them  individually 
liable  to  third  persons  or  to  their  partners, 
in  particular  cases ;  Lindl.  Partn.  *413 ;  2 
Jac.  &  W.  200 ;  9  Ad.  &  E.  314 ;  Story,  Partn. 
§§  102,  130,  142,  202;  Crawford  v.  Collins, 
45  Barb.  (N.  Y.)  209. 

The  management  of  the  business,  or  of 
some  particular  branch  of  it,  is  frequently 
intrusted  by  stipulation  to  one  partner,  and 
such  partner  will  be  protected  in  his  rights 
by  equity ;  Story,  Partn.  §§  172,  182,  193,  202  ; 
and  see  La.  Civ.  Code  art.  2838;  Pothier, 
SociCte,  n.  71;  Dig.  14,  1,  1,  13;  Pothier, 
Pand.  14,  1,  4 ;  or  it  may  be  to  a  majority  of 
the  partners,  and  should  be  where  they  are 
numerous.     See  Partners. 

The  manner  of  furnishing  capital  and 
stock  should  be  provided  for.  When  a  part- 
ner is  required  to  furnish  his  proportion  of 
the  stock  at  stated  periods,  or  pay  by  in- 
stalments, he  will,  where  there  are  no  stip- 
ulations to  the  contrary,  be  considered  a 
debtor  to  the  firm;  Story,  Partn.  §203;  1 
Swanst  S9.  As  to  the  fulfillment  of  some 
conditions  precedent  by  a  partner,  such  as 
the  payment  of  so  much  capital,  etc.,  see 
Lindl.  Partn.  *416;  1  Wins.  Saund.  320  a. 
Sometimes  a  provision  is  inserted  that  real 
estate  and  fixtures  belonging  to  the  firm 
shall  be  considered,  as  between  the  partners, 
not  as  partnership  but  as  several  property ; 
1  App.  Cas.  181;  Rushing  v.  People,  4U  Ark. 
390;  Stumph  v.  Bauer,  70  Ind.  157;  Clem- 
ents v.  Jessup,  30  N.  J.  Eq.  5G9.    In  cases  of 


bankruptcy,  this  property  will  be  treated  as 

the  separate  property  of  the  part:,. 

yer,  Partn.  §§  905,  909;   5  Madd. 

<;;:. 

The  apportionment  of  profits  and 
should  be  provided  for.  The  law  distributes 
these  equally,  in  the  absence  of  controlling 
circumstances,  without  regard  to  the  capital 
furnished  by  each;  Story.  Partn.  24;  3  Kent 
28;  Gould  v.  Gould,  0  Wend.  (X.  Y  , 
But  see  7  Bligh  432;  5  Wils.  &  8.  L6;  20 
Beav.  98;    Hyatt  v.  Robinson,  15  Ohio.  399. 

Very  frequently  the  articles  provide  for 
the  division  of  profits  and  determine  the 
proportion  in  which  each  partner  takes  his 
share.  There  is  nothing  to  prevent  their 
making  any  bargain  on  this  subjed  that  they 
see  fit  to  make;    Pars.  Partn.  §  172. 

Periodical  accounts  of  the  property  of  the 
partnership  may  be  stipulated  tor.  These, 
when  settled,  are  at  least  prima  fade  evi- 
dence of  the  facts  they  contain;  7  Siin.  239. 
It  is  proper  to  stipulate  that  an  account  set- 
tled shall  be  conclusive;    Lindl.  Partn.  *420. 

The  expulsion  of  a  partner  for  gross  mis- 
conduct, bankruptcy,  or  other  specified  caus- 
es may  be  provided  for;  and  the  provision 
will  govern,  when  the  case  occurs.  See  10 
Hare  493;  L.  R.  9  Ex.  190;  Pars.  Partn.  109, 
n;    Patterson  v.  Silliman,  28  Pa.  304. 

A  settlement  of  the  affairs  of  the  partner- 
ship should  always  be  provided  for.  It  is 
generally  accomplished  in  one  of  the  three 
following  ways:  first,  by  turning  all  the  as- 
sets into  cash,  and,  after  paying  all  the  lia- 
bilities of  the  partnership,  dividing  such 
money  in  proportion  to  the  several  ml 
of  the  parties;  or,  second,  by  providing  that 
one  or  more  of  the  partners  shall  be  entitled 
to  purchase  the  shares  of  the  others  at  a 
valuation;  20  Beav.  442;  or,  third,  that  all 
the  property  of  the  partnership  shall  be  ap- 
praised, and  that  after  paying  the  partner- 
ship debts  it  shall  be  divided  in  the  proper 
proportions.  The  first  of  these  modes  is 
adopted  by  courts  of  equity  in  the  absence  of 
express  stipulations;  Lindl.  Partn.  L'd  Am. 
ed.  (Ewell)  *429;  Story,  Partn.  §207;  S  Sim. 
529;  but  see  0  Madd.  140 ;  3  Hare  58L 
Where  partnership  accounts  have  been  fully 
settled,  an  express  promise  by  one  to  pay 
the  balance  due  to  another  is  nor  necessary; 
Sears  v.  Starbird,  78  Cal.  225,  20  Pac.  547. 

Submission  of  disputes  to  arbitration  is 
provided  for  frequently,  but  such  a  clause 
is  nugatory,  as  no  action  will  lie  for  a 
breach;  Story,  Partn.  §  215;  and  (except  in 
England,  under  Com.  L.  Proc.  Art.  1854)  it 
is  no  defence  to  an  action  relative  to  the  mat- 
ter to  be  referred;  Pars.  Partn.  170;  see 
Lindl.  Partn.'  2d  Am.  ed.  (Ewell)  •451.  Where 
the  settlement  of  partnership  accounts  is 
made  by  arbitrators  without  fraud,  it  will 
not  be  disturbed ;  Abell's  Adm'r  v.  Phillips 
(Ky.)  13   S.  W.  109. 

The  articles   should   be   executed   by   the 


ARTICLES  OF  PARTNERSHIP 


252 


ARTIFICIAL 


parties,  but  need  not  be  under  seal.  See  Pas- 
ties;   Partners;   Partnership. 

ARTICLES  OF  THE  PEACE.  A  com- 
plaint made  before  a  court  of  competent  ju- 
risdiction by  one  who  has  just  cause  to  fear 
that  an  injury  to  his  person  or  property  is 
about  to  be  committed  or  caused  by  the  par- 
ty complained  of,  alleging  tbe  causes  of  his 
belief,  and  asking  the  protection  of  the  court. 

The  object  of  articles  is  to  compel  the 
party  complained  of  to  find  sureties  of  the 
peace.  This  will  be  granted  when  the  articles 
are  on  oath;  12  Mod.  24::;  12  Ad.  &  E.  599; 
unless  the  articles  on  their  face  are  false; 
2  Burr.  80G;  3  id.  1922;  or  are  offered  un- 
der suspicious  circumstances;  2  Str.  835;  1 
W.  Bla.  233.  Their  truth  cannot  be  contro- 
verted by  affidavit  or  otherwise;  but  excep- 
tion may  be  taken  to  their  sufficiency,  or  af- 
fidavits for  reduction  of  the  amount  of  bail 
tendered;  2  Str.  1202;  13  East  171.  See 
Good   Behavior;   Peace. 

ARTICLES  OF  SEPARATION.  See  Sepa- 
ration. 

ARTICLES  OF  WAR.  The  code  of  laws 
established  for  the  government  of  the  army. 

The  term  is  used  in  this  sense  both  in 
England  and  the  United  States.  The  term 
also  includes  the  code  established  for  the 
government  of  the  navy.  See  R.  S.  U.'  S.  § 
1342,  as  to  the  army,  and  §  1624,  as  to  the 
navy. 

The  constitution,  art.  1,  §  8,  provides  that 
Congress  shall  have  power  "to  make  rules 
for  the  government  and  regulation  of  the 
land  and  naval  forces." 

See  Military  Law;  Martial  Law; 
Courts-Martial;  Regulations  of  the  Ar- 
my; Rank. 

ARTICULI  CLERI.  These  articles  (Edw. 
II.)  were  an  attempt  to  delimit  accurately 
the  spheres  of  the  lay  and  ecclesiastical  ju- 
risdictions, and  were  the  basis  of  all  subse- 
quent legislation  upon  this  subject  during  the 
mediaeval  period.  2  Holdsw.  Hist,  E.  L.  253. 
See  Circumspecte  Agates. 

ARTIFICER.  One  who  buys  goods  in  or- 
der to  reduce  them  by  his  own  art,  or  in- 
dustry, into  other  forms,  and  then  to  sell 
them.  Lansdale  v.  Brashear,  3  T.  B.  Mon. 
(Ky.)  335. 

The  term  applies  to  those  who  are  actually 
and  personally  engaged  or  employed  to  do 
mechanical  work  or  the  like,  and  not  to  those 
taking  contracts  for  labor  to  be  done  by  oth- 
ers ;   7  El.  &  Bl.  135. 

ARTIFICIAL.  Having  its  existence  in 
the  given  manner  by  virtue  of  or  in  consid- 
eration only  of  the  law. 

Artificial  person.  A  subject  of  duties  and 
rights  which  is  represented  by  one  or  more 
natural  persons  (generally,  not  necessarily, 
by  more  than  one)  but  does  not  coincide 
with  them.    It  has  a  continuous  legal  exist- 


ence not  necessarily  depending  on  any  natu- 
ral life;  this  legal  continuity  answers  to 
some  real  continuity  of  public  functions  or 
of  special  purpose  recognized  as  having  pub- 
lic utility  or  of  some  lawful  common  interest 
of  the  natural  persons  concerned.  Pollock, 
First  Book  of  Jurispr.  112.  See  Corpora- 
tion. 

A  body,  company,  or  corporation  consider- 
ed in  law  as  an  individual.  Trustees  of  Dart- 
mouth College  v.  Woodward,  4  Wheat.  (U. 
S.)  518,  4  L.  Ed.  629. 

AS  (Lat).    A  pound. 

It  was  composed  of  twelve  ounces.  The  parts  wera 
reckoned  (as  may  be  seen  In  the  law,  Servum  de 
hceredibus,  Inst.  lib.  xiii.  Pandect)  as  follows:  uncia, 
1  ounce;  sextans,  2  ounces;  triens,  3  ounces;  qua- 
drans,  4  ounces;  quincunx,  5  ounces;  semis,  8 
ounces;  septunx,  7  ounces;  bes,  8  ounces;  dodrans, 
9  ounces;    dextans,  10  ounces;    deunx,  11  ounces. 

The  whole  of  a  thing;  solidum  quid. 
Thus,  as  signified  the  whole  of  an  inheritance:  so 
that  an  heir  ex  asse  was  an  heir  of  the  whole  in- 
heritance. An  heir  ex  triente,  ex  semisse,  ex  besse, 
ex  deunce,  was  an  heir  of  one-third,  one-half,  two- 
thirds,  or   eleven-twelfths. 

ASCENDANTS.  Those  from  whom  a  per- 
son is  descended,  or  from  whom  he  derives 
his  birth,  however  remote  they  may  be.  See 
Consanguinity. 

Every  one  has  two  ascendants  at  the  first  degree, 
his  father  and  mother;  four  at  the  second  degree, 
his  paternal  grandfather  and  grandmother,  and  his 
maternal  grandfather  and  grandmother;  eight  at 
the  third.  Thus,  in  going  up  we  ascend  by  various 
lines,  which  fork  at  every  generation.  By  this 
progress  sixteen  ascendants  are  found  at  the  fourth 
degree;  thirty-two,  at  the  fifth,  sixty-four,  at  the 
sixth ;  one  hundred  and  twenty-eighth,  at  the  sev- 
enth, and  so  on.  By  this  progressive  increase,  a 
person  has  at  the  twenty-fifth  generation  thirty- 
three  million  five  hundred  and  fifty-four  thousand 
four  hundred  and  thirty-two  ascendants.  But,  as 
many  of  the  ascendants  of  a  person  have  descended 
from  the  same  ancestor  the  lines  which  were  fork- 
ed reunite  to  the  first  common  ancestor,  from  whom 
the  other  descends ;  and  this  multiplication,  thus 
frequently  interrupted  by  the  common  ancestors, 
may  be  reduced  to  a  less  number. 

ASCERTAIN.  To  make  certain  by  exam- 
ination ;  to  find  out.  The  word  ascertained 
is  held  to  have  two  meanings:  (1)  known; 
(2)  made  certain.    L.  R.  2  P.  &  D.  3G5. 

ASCRIPTICIUS.  One  enrolled;  foreigners 
who  have  been  enrolled.  Among  the  Romans, 
ascripticii  were  foreigners  who  had  been  nat- 
uralized, and  who  had  in  general  the  same 
rights  as  natives.  Nov.  22,  c.  17;  Cod.  11, 
47. 

A  man  bound  to  the  soil  but  not  a  slave. 
2  Holdsw.  Hist.  E.  L.  217.    See  Adscripticii. 

ASEXUALIZATION.     See  Vasectomy. 

ASIDE.  On  one  side;  apart.  To  set 
aside.  To  annul ;  to  make  void.  State  v. 
Primm,  61  Mo.  171. 

ASPHYXIA.  In  Medical  Jurisprudence. 
Suspended  animation  and  death  produced  by 
non-conversion  of  the  venous  blood  of  the 
lungs  into  arterial. 

This  term  applies  to  the  situation  of  persons  who 
have  been  asphyxiated  by  submersion  or  drowning; 


ASPHYXIA 


253 


ASSAULT 


by  breathing  mepbitic  gas;  by  suspension  or 
strangulation.  In  a  legal  point  of  view,  it  is  always 
proper  to  ascertain  whether  the  person  who  has 
thus  been  deprived  of  his  6enses  is  the  victim  of 
another,  whether  the  injury  has  been  caused  by  ac- 
cident, or  whether  it  is  the  act  of  the  sufferer  him- 
self. See  1  Hamilton,  Leg.  Med.  113,  120;  1  Wh.  &  St. 
Med.  Jur.  534;    Death. 

ASPORTATION  (Lat  asportotto).  The 
act  of  carrying  a  thing  away;  the  removing 
a  thing  from  one  place  to  another. 

The  carrying  away  of  a  chattel  which  one 
Is  accused  of  stealing.     See  Larceny. 

ASSART,  ESSART.  A  piece  of  forest  land 
converted  into  arable  land   by   grubbing  up 

the  trees  and   brushwood.      New   Diet. 

ASSART  RENTS.  Rents  paid  to  the 
Crown  for  assailed  lands.     New  Diet. 

ASSASSINATION.     Murder  committed  for 
hire,  without  provocation  or  cause  of  r< 
ment  given   to  the   murderer  by  the  person 
upon  whom  the  crime  is  committed.    Erskine, 
Inst.  b.  4,  t.  4,  n.  45. 

A  murder  committed  treacherously,  with 
advantage  of  time,  place,  or  other  circum- 
stances. 

ASSAULT.  An  unlawful  offer  or  attempt 
with  force  or  violence  to  do  a  corporeal  hurt 
to  another. 

Force  unlawfully  directed  or  applied  to 
the  person  of  another  under  such  circum- 
stances as  to  cause  a  well-founded  appre- 
hension of  immediate  peril.  Bish.  Cr.  Law 
548. 

Aggravated  assault  is  one  committed  with 
the  intention  of  committing  some  additional 
crime.  Simple  assault  is  one  committed  with 
no  intention  to  do  any  other  injury. 

Assault  is  generally  coupled  with  battery,  and  for 
the  excellent  practical  reason  that  they  generally 
go  together  ;  but  the  result  is  rather  the  initiation 
or  offer  to  commit  the  act  of  which  the  battery  is 
the  consummation.  An  assault  is  included  in  every 
battery  ;    1  Hawk.  PI.  Cr.  c.  62,  §  1. 

Where  a  person  is  only  assaulted,  still  the. form  of 
the  declaration  is  the  same  as  where  there  has  been 
a  battery,  "that  the  defendant  assaulted,  and  beat, 
bruised,  and  wounded  the  plaintiff;"  1  Saund.  6th 
ed.  14  a.  The  word  "ill-treated"  is  frequently  in- 
serted: and  if  the  assaulting  and  ill-treating  are 
Justified  in  the  plea,  although  the  beating,  bruising, 
and  wounding  are  not,  yet  it  is  held  that  the  plea 
amounts  to  a  justification  of  the  battery;  7  Taunt. 
689  ;  1  J.  B.  Moore  420.  So  where  the  plaintiff  de- 
clared, in  trespass,  for  assaulting  him,  seizing  and 
laying  hold  of  him,  and  imprisoning  him,  and  the 
defendant  pleaded  a  justification  under  a  writ  of 
capias,  it  was  held,  that  the  plea  admitted  a  bat- 
tery; 3  M.  &  W.  28.  But  where  in  trespass  for  as- 
saulting the  plaintiff,  and  throwing  water  upon  him, 
and  also  wetting  and  damaging  his  clothes,  the  de- 
fendant pleaded  a  justification  as  to  assaulting  the 
plaintiff  and  wetting  and  damaging  his  clothes,  it 
was  held,  that,  though  the  declaration  alleged  a 
battery,  yet  the  matter  Justified  by  the  plea  did  not 
amount  to  a   battery;    8  Ad.   &   E.  602. 

Any  act  causing  a  well-founded  apprehen- 
sion of  immediate  peril  from  a  force  already 
partially  or  fully  put  in  motion  is  an  assault; 
4  C.  &  P.  349;  9  id.  4S3,  G26;  Com.  v.  White, 
110  Mass.  407 ;  State  v.  Davis,  23  N.  C.  125, 
35  Am.  Dec.  735;    State  v.  Crow,  23  N.  C. 


375 ;   Com.  v.  Eyre,  1  S.  &  R.  (Pa.)  347 ;   State 
v.    Sims,    3    Strobh.    (S.    C.)     137;      State    v. 
Blackwell,  9  Ala.  79;   United  States  v.  1; 
2  Wash.  C.  C.  435,  Fed.  <  ~  ,    un- 

less Justifiable.    But  if  Justifiable,  then  it  is 
not   necessarily   either  a    batl 
sault.     Whether  the  act,   therefore,   i: 
particular  case  is  an  assault  and  batt< 
a  gentle  Imposition  of  hands,  or  applii 
of  force,  depends  upon  the  question  wl 
there   was   Justifiable   cause,     if.    I 
the  evidence  fails  to  show  the  act  t<>  have 
been  unjustifiable,  or  leave.-,  that  question  in 
doubt,  the  criminal  act  is  not  proved;  Com,  v. 
McKle,  1   Gray  (Mass.)  <;:;.  64,  61   Am.  Dee 
410.      Any    threatening   gesture,    showing    in 
Itself,  or  by  words  accompanying  it,  an  Im- 
mediate   intention    coupled    with    ability    to 
commit   a    battery,  is   an    assault;     Flournoy 
v.  State,  25  Tex.  App.  211.  7  S.  W.  865  ; 
v.  State,  85  Ala.  11,  4  South.  730;    13  0.  B. 
SG0;    People  v.  Lilley,  4.".  Mich.  527,  5  N.  W. 
982.;   but  an  approach  with  gesticulations  and 
menaces  was  held  not  an  assault;    Berkeley 
v.   Com.,   88  Va.   1017,   14   S.   E.  91G ;    words 
are  not  legal   provocation  to  justify  an  as- 
sault and  battery;    State  v.  Workman,  39  S. 
C.  151,  17  S.  i;.  694;    Willey  v.  Carpenter,  G4 
Vt  212,  23  Atl.   g:J0,   15  L.  It.  A.  853.     It  is 
an  assault  where  one  strikes  at  another  with 
a  stick  without  hitting  him;    1  Hawk.  PL  Cr. 
110.     Shooting  into  a  crowd  is  an  assault  up- 
on   each    member    of    the    crowd ;     Scott    v. 
State,  49  Ark.  15G,  4  S.  W.  750;    an  officer 
is  guilty  of  an  assault  in  shooting  at  a  flee- 
ing prisoner,  who  had  been  arrested  for  mis- 
demeanor,   whether   he   intended   to    hit    the 
prisoner  or  not ;    State  v.  Sigman,  10G  N.  O. 
728,  11  S.  E.  520. 

Generally  speaking  "consent  to  an  assault 
is  no  justification,"  and  "an  injury,  even  in 
sport,  would  be  an  assault  if  it  went  beyond 
what  was  admissible  in  sports  of  the 
and  was  intentional";  McNeil  v.  Mullin,  7<> 
Kan.  G34,  79  Pac.  16S,  quoting  Cooley,  Torts 
163;  Willey  v.  Carpenter,  64  Vt.  212,  23  Atl. 
630,  15  L.  R.  A.  S53,  and  note;  Poll.  Torts 
157;  Grotton  v.  Glidden,  84  Me.  589,  24  Atl. 
100S,  30  Am.  St  Rep.  413.  But  there  are  ex- 
ceptions, as  where  the  essence  of  the  offense 
is  its  being  against  the  consent,  as  in  rape 
(q.  v.).  And  consent  to  vaccination  may  be 
implied  from  conduct  so  that  no  assault  is 
committed;  O'Brien  V.  S.  S.  Co.,  154  Mass. 
272,  2S  N.  E.  2G6,  13  L.  R.  A. 

It  is  not  an  assault  for  a  beadle  to  turn 
out  of  church  a  man  who  is  disturbing  the 
service,  if  without  unnecessary  violence; 
[1S93]  1  Q.  B.  142 ;  or  for  the  master  of  a 
house  to  expel  one  who  comes  into  his  house 
and  disturbs  the  peace  of  the  family ;  3  C. 
&  K.  25. 

If  a  teacher  take  indecent  liberties  with  a 
female  scholar,  without  her  consent,  though 
she  does  not  resist,  it  is  an  assault;  6  Cox, 
Cr.  Cas.  64 ;  9  C.  &  P.  722 ;   Ridout  v.  State, 


ASSAULT 


254 


ASSAULT 


6  Tex.  App.  249.  So,  if  a  medical  practition- 
er unnecessarily  strips  a  female  patient  nak- 
ed, under  the  pretence  that  he  cannot  other- 
wise judge  of  her  illness,  it  is  an  assault,  if 
he  assisted  to  take  off  her  clothes ;  1  Moody 
19;  1  Lew.  11.  Where  a  medical  man  had 
connection  with  a  girl  fourteen  years  of  age, 
under  the  pretence  that  he  was  thereby  treat- 
ing her  professionally,  she  making  no  resist- 
ance solely  from  the  belief  that  such  was 
the  case,  it  was  held  that  he  was  properly 
convicted  of  an  assault ;  1  Den.  Cr.  Cas.  5S0 ; 
4  Cox,  Cr.  Cas.  220 ;  Tempi.  &  M.  218.  But 
an  attempt  to  commit  the  misdemeanor  of 
having  carnal  knowledge  of  a  girl  between 
ten  and  twelve  years  old,  is  not  an  assault, 
by  reason  of  the  consent  of  the  girl ;  8  C.  & 
P.  574,  5S9;  7  Cox,  Cr.  Cas.  145.  And  see 
1  Den.  Cr.  Cas.  377 ;  2  C.  &  K.  957 ;  3  Cox, 
Cr.  Cas.  266.  But  it  has  been  held  that  one 
may  be  convicted  of  an  assault  upon  the  per- 
son of  a  girl  under  ten  years  of  age  with  in- 
tent to  commit  a  rape,  whether  she  consented 
or  resisted ;  People  v.  Gordon,  70  Cal.  467,  11 
Pac.  762.  One  is  not  guilty  of  an  assault  if 
he  takes  hold  of  a  woman's  hand  and  puts 
his  arm  around  her  shoulder,  unless  he  does 
so  without  her  consent  or  with  an  intent  to 
injure  her ;  Crawford  v.  State,  21  Tex.  App. 
454,  1  S.  W.  446.  One  is  guilty  of  assault  and 
battery  who  delivers  to  another  a  thiug  to  be 
eaten,  knowing  that  it  contains  a  foreign 
substance  and  concealing  the  fact,  if  the  oth- 
er, in  ignorance,  eats  it  and  is  injured ;  Com. 
v.  Stratton,  114  Mass.  303,  19  Am.  Rep.  350; 
but  see  2  C.  &  K.  912 ;  1  Cox,  Cr.  Cas.  281 ; 
People  v.  Quin,  50  Barb.  (N.  Y.)  128.  An 
unlawful  imprisonment  is  also  an  assault; 
1  Hawk.  PI.  Cr.  c.  62,  §  1.  A  negligent  at- 
tack may  be  an  assault ;  Whart.  Cr.  L.  §  603. 
See  Steph.  Dig.  Cr.  L.  §  243. 

A  teacher  has  a  right  to  punish  a  pupil 
for  misbehavior ;  but  this  punishment  must 
be  reasonable  and  proportioned  to  the  grav- 
ity of  the  pupil's  misconduct;  and  must  be 
inflicted  in  the  honest  performance  of  the 
teacher's  duty,  not  with  the  mere  intent  of 
gratifying  his  ill-will  or  malice.  If  it  is  un- 
reasonable and  excessive,  is  inflicted  with 
an  improper  weapon,  or  is  disproportioned  to 
the  offence  for  which  it  is  inflicted,  it  is  an 
assault;  Yanvactor  v.  State,  113  Ind.  276, 
15  N.  E.  341,  3  Am.  St.  Rep.  645 ;  State  v. 
Stafford,  113  N.  C.  635,  18  S.  E.  256 ;  Spear 
v.  State  (Tex.)  25  S.  W.  125.  The  punishment 
must  be  for  some  specific  offence  which  the 
pupil  has  committed,  and  which  he  knows  he 
is  punished  for ;  State  v.  Mizner,  50  la.  145, 
32  Am.  Rep.  128.  If  a  person  over  the  age 
of  21  voluntarily  attends  school,  he  thereby 
waives  any  privilege  which  his  age  confers, 
and  may  be  punished  for  misbehavior  as  any 
other  pupils;  State  v.  Mizner,  45  la.  248, 
24  Am.  Rep.  769.  A  teacher  has  no  right, 
however,  to  punish  a  child  for  neglecting  or 
refusing    to    study    certain    branches    from 


which  the  parents  of  the  child  have  request- 
ed that  it  might  be  excused,  or  which  they 
have  forbidden  it  to  pursue,  if  those  facts 
are  known  to  the  teacher.  The  proper  rem- 
edy in  such  a  case  is  to  exclude  the  pupil 
from  the  school ;  State  v.  Mizner,  50  la.  145, 
32  Am.  Rep.  128 ;  Morrow  v.  Wood,  35  Wis. 
59,  17  Am.  Rep.  471. 

The  teacher  has  in  his  favor  the  presump- 
tion that  he  has  only  done  his  duty,  in  addi- 
tion to  the  general  presumption  of  inno- 
cence; Vanvactor  v.  State,  113  Ind.  276,  15 
N.  E.  341,  3  Am.  St.  Rep.  645 ;  State  v.  Miz- 
ner, 50  la.  145,  32  Am.  Rep.  128 ;  and  in  de- 
termining the  reasonableness  of  the  punish- 
ment, the  judgment  of  the  teacher  as  to  what 
was  required  by  the  situation  should  have 
weight;  Vanvactor  v.  State,  113  Ind.  276,  15 
N.  E.  341,  3  Am.  St.  Rep.  645.  When  a  prop- 
er instrument  has  been  used,  the  character  of 
the  chastisement,  as  regards  its  cruelty  or 
excess,  must  be  determined  by  considering 
the  nature  of  the  offence  for  which  it  was 
inflicted,  the  age,  physical  and  mental  con- 
dition, as  well  as  the  personal  attributes  of 
the  pupil,  and  the  deportment  of  the  teach- 
er; Vanvactor  v.  State,  113  Ind.  276,  15  N. 
E.  341,  3  Am.  St.  Rep.  645 ;  Dowlen  v.  State, 
14  Tex.  App.  61 ;  and  since  the  legitimate  ob- 
ject of  chastisement  is  to  inflict  punishment 
by  the  pain  which  it  causes,  as  well  as  the 
degradation  it  implies,  it  does  not  follow  that 
chastisement  was  cruel  or  excessive  because 
pain  was  caused  or  abrasions  of  the  skin  re- 
sulted from  the  use  of  a  switch  by  the  teach- 
er; Vanvactor  v.  State,  113  Ind.  276,  15  N. 
E.  341,  3  Am.  St  Rep.  645. 

A  teacher  will  be  liable  for  prosecution,  if 
he  inflict  such  punishment  as  produces  or 
threatens  lasting  mischief,  or  if  he  inflict 
punishment,  not  in  the  honest  performance 
of  duty,  but  under  the  pretext  of  duty  to 
gratify  malice;  State  v.  Pendergrass,  19  N. 
C.  365,  31  Am.  Dec.  416 ;  State  v.  Long,  117 
N.  C.  791,  23  S.  E.  431.  But  a  charge  to  the 
jury  that  "malice  means  bad  temper,  high 
temper,  quick  temper ;  and  if  the  injury  was 
inflicted  from  malice,  as  above  defined,  then 
they  should  convict  the  defendant,"  is  erro- 
neous ;  for  malice  may  exist  without  temper, 
and  may  not  exist  although  the  act  be  done 
while  under  the  influence  of  temper,  bad, 
high  or  quick.  General  malice,  or  malice 
against  all  mankind,  "is  wickedness,  a  dis- 
position to  do  wrong,  a  black  and  diabolical 
heart,  regardless  of  social  duty,  and  fatally 
bent  on  mischief."  Particular  malice  is  "ill- 
will,  grudge,  a  desire  to  be  revenged  on  a 
particular  person."  This  distinction  should 
be  explained  to  the  jury,  and  the  term  "mal- 
ice" should  be  accurately  defined ;  State  v. 
Long,  117  N.  C.  791,  23  S.  E.  431.  See  Bat- 
tery; Mental  Suffering;  Correction; 
School  ;     Whipping. 

ASSAY.    See  Annual  Assay. 


ASSAY  OFFICE 


255 


ASSENT 


ASSAY  OFFICE.  An  establishment,  or  de- 
partment, in  which  the  manipulations  attend- 
ing the  assay  of  bullion  and  coins  are  con- 
ducted. 

Assay  offices  are  from  time  to  time  estab- 
lished by  law  at  various  points  throughout 
the  country,  usually  in  connection  with  the 
branch  minis,  though  the  main  assay  of- 
fice" is  in  New  York.  It.  S.  §  3553  provides 
that  the  business  of  the  assay  office  at  New 
York  shall  be  in  all  respects  similar  to  that 
of  the  mints,  except  that  bars  only,  and  not 
coin,  shall  he  manufactured  therein;  and  no 
metals  shall  be  purchased  for  minor  coinage. 
All  bullion  intended  by  the  depositor  to  be 
converted  Into  coins  of  the  United  Stales, 
and  silver  bullion  purchased  for  coinage, 
when  assayed,  parted,  and  refined,  and  ita 
net  value  certified,  shall  be  transferred  to 
the  mint  at  Philadelphia,  under  BUCh  direc- 
tions as  shall  be  made  by  the  Secretary  oi 
the  Treasury,  at  the  expense  of  the  contin- 
gent fund  of  the  mint,  and  shall  be  there 
coined,  and  the  proceeds  returned  to  the  as- 
say office. 

Sec.  3558  provides  that  the  busiuess  of  the 
mint  at  Denver,  while  conducted  as  an  assay 
office,  that  of  the  assay  office  at  Boise  City, 
and  that  of  any  other  assay  offices  hereafter 
established,  shall  be  confined  to  the  receipt 
of  gold  and  silver  bullion,  for  melting  and 
assaying,  to  be  returned  to  depositors  of 
the  same,  in  bars,  with  the  weight  and  fine- 
ness stamped  thereon. 

The  assay  office  is  also  subject  to  the  laws 
and  regulations  applied  to  the  mint;  R.  S. 
§  35G2. 

ASSECURATION.  In  European  Law.  As- 
surance ;  insurance  of  a  vessel,  freight,  or 
cargo.  Opposition  to  the  decree  of  Grenoble. 
Ferriere. 

ASSECURATOR.    An  insurer. 

ASSEMBLY.  The  meeting  of  a  number  of 
persons  in  the  same  place.  An  assembly  of 
persons  would  seem  to  mean  three  or  more. 
40  S.  J.  481. 

Political  assemblies  are  those  required  by 
the  constitution  and  laws:  for  example,  the 
general  assembly,  which  includes  the  senate 
and  house  of  representatives.  The  meeting 
of  the  electors  of  the  president  and  vice-* 
president  of  the  United  States  may  also  be 
called  an  assembly. 

Popular  assemblies  are .  those  where  the 
people  meet  to  deliberate  upon  their  rights ; 
these  are  guaranteed  by  the  constitution.  U. 
S.  Const  Amend,  art.  1. 

Unlawful  assembly  is  the  meeting  of  three 
or  more  persons  to  do  an  unlawful  act,  al- 
though they  may  not  carry  their  purpose  into 
execution.     CI.  Cr.  Law.  341. 

It  differs  from  a  riot  or  rout,  because  in  each  of 
the  latter  cases  there  is  some  act  done  besides  the 
simple  meeting.  See  State  v.  Stalcup.  23  N.  C.  30, 
35  Am.  Dec.  732  ;  J  C.  &  P.  91,  431 ;  1  Bish.  Cr.  L.  { 
635;    2  id.  i  1256;    Mkkti.no. 


ASSENT.      Approval    of    something    done. 
An  undertaking  to  do  something  In  compli- 
ance with  a  request- 
in    strictness,    assent   is  to  be  distinguished   from 
consent,  which  denotes  a  will 

about  to  be  done,  be  done  ;  ,  compliance 

with,   or  receipt  of,  something  offered; 
rendering  valid  something  done  without  autl 
and    approval,    an    expression    of    satisfaction    with 
some  act  done  for  the  benefit  of  anoth   i 
party  approving.     But  in  practice  th<:  t«  rm   i 

ui  the  sense  of  acceptance  and  approval. 
Thus,  an  offer  is  said  to  be  assented  to,  although 
ly  an  offer  and  acceptance  complete  an  agree- 
ment, it  is  apprehi  nded  that  this  confusion  has 
arisen  from  the  fact  that  a  request,  assent,  and  con- 
currence  of  the  party  requesting  complete  a  con- 
as  fully  as  an  offer  and  acceptance.  Thus,  it 
is  said  there  must  be  a  request  on  one  side,  and  as- 
sent on  the  other,  in  every  contract;  5  Bingh.  N.  c. 
75;  and  this  assent  becomes  a  promise  enforceable 
by  the  party  requesting,  when  he  has  done  any- 
thing to  entitle  him  to  the  right.  Assent  thus  be- 
comes in  reality  (so  far  as  it  is  assent  merely,  and 
not  acceptance)  an  offer  made  in    I  >   a  re- 

quest. Assent  and  approval,  as  applied  to  acts  of 
parliament  and  of  congress,  have  become  con- 
founded from  the  fact  that  the  bills  of  parliament 
were  originally  requests  from  parliament  to  the 
king.    See  1  Bla.  Com.  183. 

Express  assent  is  that  which  is  openly  de- 
clared.  Implied  assent  is  that  which  is  pre- 
sumed by  law. 

Unless  express  dissent  is  shown,  accept- 
ance of  what  it  is  for  a  person's  ben< 
take,  is  presumed,  as  in  the  case  of  a  con- 
veyance of  land;  3  B.  &  Aid.  31;  Harrison 
v.  Trustees,  12  .Mass.  4<:i  ,  Pearse  v.  Owens, 
3  N.  C.  234;  Treadwell  v.  Bulkley,  4 
(Conn.)  395,  4  Am.  Dec  225;  Jackson  v. 
Bodle,  20  Johns.  (N.  Y.)  184;  Church  \ 
man,  15  Wend.  (N.  Y.)  656,  30  Am.  De 
the  assent  (or  acceptance)  of  the  grantee  to 
the  delivery  of  a  deed  by  a  person  other  than 
the  grantor,  vests  the  title  in  him  from  the 
time  of  the  delivery  by  the  grantor  to  that 
.third  person;  O'Kelly  v.  O'KcIly,  S  Met.. 
(Mass.)  436;  Hulick  v.  Scoril,  4  Gilm.  (111.) 
176;  Buffuni  v.  Green,  5  N.  II.  71.  20  Am. 
Dec.  502;  Belden  v.  Carter,  4  Day  (Conn.) 
G6,  4  Am.  Dec.  185;  Jackson  v.  Bodle,  20 
Johns.  (N.  Y.)  187;  Wesson  v.  Stephens.  37 
N.  C.  557;  5  B.  &  C.  671;  a  devise  which 
draws  after  it  no  charge  or  risk  of  loss,  is 
presumed  to  have  Icon  accepted  by  the  dev- 
isee ;  Brown  v.  Wood,  17  Mass.  7.".;  Hannah 
v.  Swarner,  8  Watts  (Pa.)  f»,  34  Am.  Dec. 
442. 

Assent  must  be  to  the  same  thing  done  or 
offered  in  the  same  sense;  Matlock  v.  Thomp- 
son, 18  Ala.  605:  Keller  v.  Ibarra,  3  Cal. 
147;  Eliason  v.  Ilenshaw,  4  Wheat  (U.  S.) 
225,  4  L-.  Ed.  550;  5  M.  &  W.  575;  it  must 
comprehend  the  whole  of  the  proposition, 
must  be  exactly  equal  to  its  extent  and  pro- 
visions, and  must  not  Qualify  them  by  any 
new  matter;  5  M.  &  W.  535;  Slaymaker  v. 
Irwin,  4  W'hart.  (Pa.)  369;  Vassal  v.  Camp, 
11  N.  Y.  441. 

In  general,  when  an  assignment  is  made 
to  one  for  the  benefit  of  creditors,  the  assent 
of  the  assignee  will  be  presumed ;   Skipwith's 


ASSENT 


256 


ASSESSMENT 


Ex'r  v.  Cunningham,  8  Leigh  (Va.)  272,  281, 
31  Am.  Dec.  642.  But  see  Crosby  v.  Hillyer, 
24  Wend.  (N.  Y.)  280;  Welch  v.  Sackett,  12 
Wis.  243.  See  Acceptance;  Accord;  Agree- 
ment; Contract. 

ASSE  RT.  To  state  as  true ;  declare ;  main- 
tain. To  assert  against  another  has  prob- 
ably a  prima  facie  meaning  of  a  contradic- 
tion of  him,  but  the  context  or  circumstanc- 
es may  show  that  it  connotes  a  criminatory 
charge;    7  L.  J.  Ex.  268. 

ASSERTORY  OATH.  See  Oath. 
ASSESS.  To  rate  or  fix  the  proportion 
which  every  person  has  to  pay  of  any  par- 
ticular tax.  To  tax.  To  adjust  the  shares 
of  a  contribution  by  several  towards  a  com- 
mon beneficial  object  according  to  the  bene- 
fit received.  To  fix  the  value  of ;  to  fix  the 
amount  of. 

As  used  in  a  covenant  to  pay  rates,  etc., 
"assessed"  means  "reckoned  on  the  value." 
66  L.  J.  Ch.  353 ;    [1S97]  1  Ch.  633. 

ASSESSMENT.  Determining  the  value  of 
a  person's  property  or  occupation  for  the  pur- 
pose of  levying  a  tax. 

Determining  the  share  of  a  tax  to  be  paid 
by  each  individual. 
Laying  a  tax. 

Adjusting  the  shares  of  a  contribution  by 
several  towards  a  common  beneficial  object 
according  to  the  benefit  received. 

An  assessment  is  an  official  estimate  of  the 
sums  which  are  to  constitute  the  basis  of  an 
apportionment  of  a  tax  between  the  indi- 
vidual subjects  of  taxation  within  the  dis- 
trict. It  does  not  of  itself  lay  the  charge 
upon  either  person  or  property,  but  is  a  step 
preliminary  thereto,  and  which  is  essential 
to  the  apportionment ;  Evansville  &  I.  R.  Co. 
v.  Hays,  118  Ind.  214,  20  N.  E.  736.  As  the' 
word  is  more  commonly  employed,  an  assess- 
ment consists  in  the  two  processes  of  listing 
the  persons,  property,  etc.,  to  be  taxed,' and  of 
estimating  the  sums  which  are  to  be  the 
guide  in  an  apportionment  of  the  tax  be- 
tween them;  City  of  Chicago  v.  Fishburn, 
189  111.  367,  59  N.  E.  791 ;  Pomeroy  Coal  Co. 
v.  Emlen,  44  Kan.  123,  24  Pac'340;  State 
v.  R.  Co.,  54  S.  C.  564,  32  S.  E.  691.  To  as- 
sess a  tax  is  to  determine  what  a  taxpayer 
shall  contribute  to  the  public;  and  to  levy 
a  tax  is  to  make  a  record  of  this  determina- 
tion and  to  extend  the  same  against  his  prop- 
erty; Chicago,  B.  &  Q.  R.  Co.  v.  Klein,  52 
Neb.  258,  71  N.  W.  1069. 

A  local  assessment  can  only  be  levied  upon 
land.  It  cannot,  as  a  tax  can,  be  made  a 
personal  liability  of  the  taxpayer.  A  tax  is 
levied  over  a  whole  state,  or  a  political  sub- 
division. A  local  assessment  is  levied  on 
property  situated  in  a  district  created  for 
the  express  purpose  of  the  levy,  and  pos- 
sessing no  other  existence  than  to  be  the 
thing  on  which  the  levy  is  made.  A  tax  is 
a  continuing  burden;    a  local  assessment  is 


exceptional  both  as  to  time  and  locality;  It 
is  brought  into  being  to  accomplish  a  par- 
ticular purpose.  A  tax  is  levied,  collected, 
and  administered  by  a  public  agency ;  a  lo- 
cal assessment  is  made  by  an  authority  ab 
extra.  Yet  it  is  like  a  tax  in  that  it  is  im- 
posed under  an  authority  derived  from  the 
legislature.  It  is  like  a  tax  in  that  it  must 
be  levied  for  a  public  purpose,  and  must  be 
apportioned  by  some  reasonable  rule.  It  is 
unlike  a  tax  in  that  the  proceeds  must  be 
expended  in  an  improvement  from  which  a 
benefit,  clearly  exceptive  and  plainly  per- 
ceived, must  enure  to  the  property  upon 
which  it  is  imposed ;  Town  of  Macon  v.  Pat- 
ty, 57  Miss.  378,  34  Am.  Rep.  451  (a  leading 
case). 

Though  local  assessments  are  laid  under 
the  taxing  power,  and  are,  in  a  certain  sense, 
taxes,  yet  they  are  a  peculiar  class  of  taxes, 
and  not  within  the  meaning  of  that  term  as  it 
is  usually  employed ;  Mayor,  etc.,  of  Birming- 
ham v.  Klein,  89  Ala.  461,  7  South.  3S6,  8  L. 
R.  A.  369;    Holley  v.  County  of  Orange,  106 
Cal.   420,  39  Pac.   790;     Nichols   v.    City   of 
Bridgeport,  23  Conn.  189,  60  Am.  Dec.  636; 
City  Council  of  Augusta  v.  Murphey,  79  Ga. 
101,  3  S.  E.  326;    Dempster  v.  Chicago,  175 
111.  278,  51  N.  E.  710 ;    Board  of  Com'rs  of 
Monroe  County  v.  Harrell,  147  Ind.  500,  46 
N.  E.  124;    Gosnell  v.  City  of  Louisville,  104 
Ky.  201,  46  S.  W.  722 ;    Jones  v.  City  of  Bos- 
ton, 104  Mass.  461;    Kansas  City  v.  Bacon, 
147  Mo.  259,  48  S.  W.  860;    Mann  v.  Jersey 
City,   24  N.  J.  L.  662;    City  of  Raleigh   v. 
Peace,  110  N.  C.  32,  14  S.  E.  521,  17  L.  R.  A. 
330;    Raymond  v.  City  of  Cleveland,  42  Ohio 
St.    522;     Beaumont    v.    Wilkes-Barre    City, 
142  Pa.  198,  21  Atl.  888;    Heller  v.  City  of 
Milwaukee,  96  Wis.  134,  70  N.  W.  1111 ;    as 
where  a  mining  lease  required  a  lessee  to 
pay  taxes,  duties  and  imposts  on  coal  mined, 
the  mining  improvements,   and   the  surface 
and  coal  land  itself,  it  was  held  not  to  require 
him  to  pay  municipal  assessments  for  paving 
a  street  or  constructing  a  sewer;    Pettibone 
v.  Smith,  150  Pa.  118,  24  Atl.  693,  17  L.  R.  A. 
423 ;    and  a  devise  requiring  the  life  tenant 
to  pay  all  necessary  taxes  on  the  property 
was  held  not  to  include  assessments  for  sew- 
ers and  curbing;    Chambers  v.  Chambers,  20 
R.  I.  370,  39  Atl.  243;    Chamberlin  v.  Glea- 
son,  163  N.  Y.  214,  57  N.  E.  487.    But  "taxes" 
was  held  to  include  a  sewer  assessment  in  an 
agreement  to  convey  a  good  title  to  land  free 
from  all  mortgage  encumbrances,  taxes  and 
mechanic's    liens;     Williams   v.    Monk,    179 
Mass.  22,  60  N.  E.  394. 

The  power  to  make  special  assessments  for 
public  improvements  is  within  the  taxing 
power  of  the  state ;  People  v.  Mayor,  etc.,  of 
Brooklyn,  4  N.  Y.  419,  55  Am.  Dec.  266,  note ; 
People  v.  Pitt,  169  N.  Y.  521,  62  N.  E.  662,  58 
L.  R.  A.  372.  The  authority  may  be  exercis- 
ed directly,  or  it  may  be  left  to  local  boards 
or  bodies;    In  re  Piper,  32  Cal.  530;    Kelly 


ASSESSMENT 


257 


ASSESSMENT 


v.  Chadwick,  104  La.  719,  29  South.  295; 
People  v.  Buffalo,  147  N.  Y.  675,  42  N.  E.  344 
(where  assessors  and  not  common  council 
were  authorized  to  fix  the  district  of  assess- 
ment for  river  dredging) ;  but  in  the  latter 
case  the  determination  will  be  by  a  body 
possessing,  for  the  purpose,  legislative  pow- 
er, ^and  whose  action  must  be  as  conclusive 
as  if  taken  by  the  legislature  itself;  Cooley, 
Taxation  [3d  ed.]  1207),  where  it  is  said  the 
two  methods  of  apportionment  between 
which  a  choice  is  usually  made  arc:  1.  An 
ment  made  by  assessors  or  commis- 
sioners, appointed  for  the  purpose  under  Leg- 
islative authority,  who  are  to  view  the  es- 
tates and  levy  the  expense  in  proportion  to 
the  benefits  which,  in  their  opinion,  the  es- 
tates respectively  will  receive  from  the  work 
proposed.  2.  An  assessment  by  some  def- 
inite standard  fixed  upon  by  the  legislature 
itself,  which  is  applied  to  estates  by  a  meas- 
urement of  length,  quantity,  or  value. 

An  assessment  will  be  upheld  wherever  it 
Is  not  obvious  from  the  nature  and  location 
of  the  property  involved,  the  district  pre- 
scribed, the  condition  and  character  of  the 
Improvement,  or  the  cost  and  relative  value 
of  the  property  to  the  assessment,  that  the 
method  adopted  has  resulted  in  imposing  a 
burden  in  substantial  excess  of  the  benefits, 
or  disproportionate,  within  the  district,  as 
between  owners;  King  v.  Portland,  184  U.  S. 
69,  22  Sup.  Ct  290,  46  L.  Ed.  431,  affirming 
id.,  38  Or.  402,  63  Pac.  2,  55  L.  R.  A.  S12  ; 
Weber  v.  Reinhard,  TA  Pa.  373,  13  Am.  Rep. 
747 ;  Jones  v.  City  of  Boston,  104  Mass.  461 ; 
Ahern  v.  Board  of  Improvement  Dist.  No.  3, 
69  Ark.  68,  61  S.  W.  575;  Simpson  v.  Kansas 
City,  46  Kan.  438,  26  Pac.  721 ;  City  of  Chi- 
cago v.  Baer,  41  111.  306 ;  State  v.  Fuller,  34 
N.  J.  L.  227. 

A  principle  of  assessment  is  void  if  it  is 
not  based  upon  benefits  to  the  property  as- 
sessed, and  the  assessment  limited  to  the 
benefits;  Norwood  v.  Baker,  172  U.  S.  269, 
19  Sup.  Ct  187,  43  L.  Ed.  443 ;  Lee  v.  Rug- 
gles,  62  111.  427 ;  In  re  Application  for  Drain- 
age of  Lands  between  Lower  Chatham  and 
Little  Falls,  35  N.  J.  L.  497;  In  re  City  of 
New  York,  3  Wend.  (N.  Y.)  452 ;  Gilmore  v. 
Hentig,  33  Kan.  174,  5  Pac.  781;  Thomas  v. 
Gain,  35  Mich.  155,  24  Am.  Rep.  535;  Alle- 
gheny City  v.  R.  Co.,  138  Pa.  37",.  21  AM.  763  ; 
Hutcheson  v.  Storrie,  92  Tex.  6S8,  51  S.  W. 
848,  45  L.  R,  A.  289,  71  Am.  St  Rep.  8S4 ; 
Adams  v.  City  of  Shelbyviile,  154  In<L  467,  57 
N.  E.  114,  49  L.  R.  A.  797,  77  Am.  St  Rep. 
484 ;  Cowley  v.  City  of  Spokane,  99  Fed.  840. 
That  the  cost  of  a  local  improvement  may 
be  assessed  without  regard  to  benefit  is  held 
in  some  jurisdictions;  In  re  Madera  Irr. 
Dist.,  1)2  Gal.  296,  28  Pac.  272,  675,  14  L  R. 
A.  755,  27  Am.  St  Rep.  106;  Weeks  v.  City 
of  Milwaukee,  10  Wis.  242,  where  the  power 
to  impose  such  burdens  is  placed  upon  a 
constitutional  recognition  of  the  power  to 
Bouv.— 17 


make  assessments  as  distinguished  from  tax- 
ation.    It  was  held  in   In  re  Kingman,   153 
Mass.  666,  27  N.  E.  778,  12  L.  R.  A.  417 
assessments  for  public  Improvement 
be  in  proportion  to  the  benefits.     In  Iowa  all 
local   assessments  are  based   on  the   b 
ground    that   the   object    is    public,    and   that 
the  system  of  taxing  abutting   In: 
such  a  just  distribution  of  burdens  as  to  be 
within  the  rule  requiring  uniformity  of  tax- 
ation;   Morrison   v.   Jlershire,  32   la.  271. 

Front  Foot  Rule.     The  apportionmi 
the  entire  cost  of  a  pavement  upon  abutting 
ccordlng  to  frontage,  without  any  pre- 
liminary hearing  as  to  benefits,  may  I 
thorized  by  the  legislature,  and  this  will  not 
constitute  a    taking   without  due  pro*. 
law;    French  v.  Pav.  Co.,  181  U.  s.  324,  -i 
Sup.  Ct.  <;l'5.  45  L.  Ed.  879.     Thi- 
the  other  cases  reported  in  the  same  volume 
all  involved  the  constitutionality  of  acts  cre- 
ating  special   taxing  districts   and   providing 
for   assessing   the   costs   of   local    Improve- 
ments upon  abutting  property,  in  proportion 
to  their  frontage.     The  opinions  were  deliv- 
ered  in  all  of  them   by  Mr.  Justice  Shlras; 
Harlan,  White  and  McKenna.  J.I..  dissenting. 

In  Davidson  v.  New  Orleans,  or,  o.  B.  '.»7. 
24  L.  Ed.  616.  an  assessment  of  certain  real 
estate  in  New  Orleans  for  draining  swamps 
was  resisted  in  the  state  courts,  and  the 
came  into  the  Supreme  Court  of  the  United 
States  on  the  ground  that  the  proceeding  de- 
prived the  owner  of  his  properly  without  due 
process  of  law.  The  origin  and  history  of 
this  provision  of  the  constitution  as  found 
in  Magna  Carta  and  in  the  5th  and  the  14th 
amendments  were  considered;  the  cases  of 
Murray  v.  Imp.  Co.,  IS  How.  272,  1",  ; 
372,  and  McMillen  v.  Anderson.  95  0.  i 
24  L.  Ed.  335,  were  approved;  and  it  was 
held  that  "neither  the  corporate  agency  by 
which  the  work  is  done,  the  excessive  price 
which  the  statute  allows  therefor,  nor  the 
relative  importance  of  the  work  to  the  value 
of  the  land  assessed,  nor  the  fact  that  the 
assessment  is  made  before  the  work  is  done, 
nor  that  the  assessment  is  unequal  as  re- 
gards the  benefits  conferred,  nor  that  personal 
Judgments  are  rendered  for  the  amount  as- 
sessed, are  matters  in  which  the  state  au- 
thorities are  controlled  by  the  federal  con- 
stitution." And  to  the  same  effect,  French 
v.  Pav.  Co.,  1S1  U.  S.  ::■_'!.  21  Sup.  Ot  625, 
45  L.  Ed  879,  where  the  question  involved 
was  the  constitutionality  of  the  apportion- 
ment of  the  cost  of  a  street  pavement  upon 
the  lots  of  abutters. 

There  is  a  wide  difference  between  a  tax 
essment  prescribed  by  a  legislative 
body,  and  one  imposed  by  a  municipal  cor- 
poration. And  the  difference  is  still  wider 
between  an  act  making  the  assessment  and 
the  action  of  mere  functionaries  acting  un- 
der municipal  ordinances;  Parsons  v.  Dis- 
trict of  Columbia,  170  U.  S.  52,  18  Sup.  Ct. 


ASSESSMENT 


258 


ASSESSMENT 


521,  42  K  Ed.  943,  where  the  legislation  in 
question  was  that  of  Congress,  and  was  con- 
sidered in  the  light  of  the  conclusion  that 
the  United  States  possesses  complete  juris- 
diction both  of  a  political  and  municipal 
character.  There  a  comprehensive  system 
regulating  the  supply  of  water  and  the  erec- 
tion and  maintenance  of  reservoirs  and  wa- 
ter mains  was  established,  and  of  it  every 
property  owner  of  the  District  of  Columbia 
was  presumed  to  have  notice.  Accordingly, 
i,  was  held  that,  when  Congress  enacted  that 
thereafter  assessments  for  laying  water 
mains  be  levied  on  a  front  foot  basis  against 
all  abutting  lots,  such  act  must  be  deemed 
conclusive  alike  of  the  question  of  the  ne- 
ty  of  the  work  and  of  its  benefits  to 
abutting  property,  and  that  a  property  own- 
er could  not  be  heard  to  coniplain  that  he 
was  not  notified  of  the  creation  of  such  a  sys- 
tem, or  consulted  as  to  the  probable  cost 
thereof. 

The  question  of  special  benefit  and  the 
property  to  which  it  extends  is  a  question 
of  fact,  and  when  the  legislature  determines 
it  in  a  case  within  its  general  power,  its  de- 
cision is  final ;  Spencer  v.  Merchant,  100  N. 
Y.  585,  3  N.  E.  682.  The  courts  cannot  re- 
view its  discretion.  Where  a  tax  or  assess- 
ment is  imposed  by  a  direct  exercise  of  the 
legislative  power,  calling  for  no  inquiry  into 
the  weight  of  evidence,  nor  for  anything  in 
the  nature  of  judicial  examination,  no  no- 
tice to  the  owner  is  required;  Hagar  v. 
Dist.  No.  108,  111  U.  S.  701,  4  Sup.  Ct.  G63, 
28  L.  Ed.  569.  But  where  an  assessment  is 
imposed  upon  property  according  to  its  val- 
ue to  be  ascertained  by  assessors  upon  evi- 
dence, such  officers  act  judicially;  Williams 
v.  Weaver,  100  U.  S.  547,  25  L.  Ed.  708 ;  and 
•  notice  and  opportunity  to  be  heard  are  nec- 
essary ;    id. 

Norwood  v.  Baker,  172  U.  S.  269,  19  Sup. 
Ct.  187,  43  L.  Ed.  443,  was  not  intended,  it  is 
said,  to  overrule  Bauman  v.  Ross,  167  U.  S. 
548,  17  Sup.  Ct.  966,  42  L.  Ed.  270,  or  Par- 
sons v.  District  of  Columbia,  170  U.  S.  45, 
18  Sup.  Ct.  521,  42  L.  Ed.  943,  both  of  these 
cases  being  cited  in  the  opinion  in  the  for- 
mer case,  and  declared  not  to  be  inconsist- 
ent with  the  conclusion  there  reached.  Spe- 
cial facts  showing  an  abuse  or  disregard  of 
the  law,  resulting  in  an  actual  deprivation 
of  property,  may  be  ground  for  applying  to 
a  court  of  equity;  and  this  was  thought  by 
a  majority  of  the  Supreme  Court  to  have 
been  the  case  in  Norwood  v.  Baker,  supra, 
per  Shiras,  J.,  in  Wight  v.  Davidson,  181  XL 
S.  371,  3S5,  21  Sup.  Ct.  616,  45  L.  Ed.  900. 

The  legislative  authority  in  respect  to  as- 
sessment districts  is  sometimes  exercised  by 
making  several  districts  for  a  single  work, 
as  in  case  of  street  improvements,  a  statute 
may  make  each  street  or  part  of  a  street  a 
taxing  district;  Hilliard  v.  City  of  Ashe- 
ville,  118  N.  C.  845,  24  S.  E.  738.    Where  un- 


connected sections  of  a  street  were  opened, 
such  sections  were  held  separate  streets,  and 
the  cost  of  each  chargeable  on  the  property 
benefited;    In  re  Opening  One  Hundred  and 
Sixty-Seventh  St.,  6S  Hun  158,  22  N.  Y.  Supp. 
604 ;   Bacon  v.  City  of  Savannah,  86  Ga.  301, 
12  S.  E.  580.    Where  a  street  is  of  different 
widths,  it  may  be  divided  into  as  many  sec- 
tions as  there  are  different  widths,  and' the 
property  on  each  section  be  assessed  for  the 
cost  thereof;    Findlay  v.  Frey,  51  Ohio   St. 
390,  38  N.  E.  114.    The  improvement  of  sev- 
eral streets  may  be  treated  as  one  work  for 
the  purpose*  of  a  special  assessment  and  the 
whole    work    apportioned    by    uniform    rule 
throughout  one  district;    Parker  v.  Challiss, 
9  Kan.  155 ;    Arnold  v.  Cambridge,  106  Mass. 
352 ;   Litchfield  v.  Vernon,  41  N.  Y.  123.    The 
legislature  may  create  a  city  boundary,  or 
designate  any   other  boundary,   for   a   local 
taxing  district,  without  reference  to  existing 
civil   or  political   districts ;    and  a   city,   as 
such  a  district,  may  tax  property  within  its 
limits  which  it  would  not  be  able  to  tax  for 
municipal  purposes  only;    Henderson  Bridge 
Co.  v.  City  of  Henderson,  90  Ky.  498,  14  S. 
W.  493;    or  it  may  create  tax  districts  for 
road  purposes  without  regard  to  the  bounda- 
ries  of   counties,    townships,   or   municipali- 
ties;   Board  of  Com'rs  of  Monroe  County  v. 
Harrell,  147  Ind.  500,  46  N.  E.  124;    Street 
Lighting  Dist.  No.  1  v.  Drummond,  63  N.  J. 
L.   493,   43   Atl.   1061;     for  the   construction 
and  maintenance  of  a  bridge  across  a  river, 
several  towns  may  be  created  a  bridge  and 
highway    district;      State    v.    Williams,    68 
Conn.  131,  35  Atl.  24,  421,  48  L.  R.  A.  465. 
See  Cooley,  Taxation  (3d  ed.)  238.     Taxing 
districts  may  be  as  numerous  as  the  purpos- 
es for  which  the  taxes  are  levied;    Reelfoot 
Lake  Levee  Dist.  v.  Dawson,  97  Tenn.  151, 
36  S.  W.  1041,  34  L.  R.  A.  725. 

Of  Damages.  Fixing  the  amount  of  dam- 
ages to  which  the  prevailing  party  in  a  suit 
is  entitled. 

It  may  be  done  by  the  court  through  its 
proper  officer,  the  clerk  or  prothonotary, 
where  the  assessment  is  a  mere  matter  of 
calculation,  but  must  be  by  a  jury  in  other 
cases.  See  Damages;  Measure  of  Damages. 
In  Insurance.  An  apportionment  made  in 
general  average  upon  the  various  articles 
and  interests  at  risk,  according  to  their  value 
at  the  time  and  place  of  being  in  safety,  for 
contribution  for  damages  and  sacrifices  pur- 
posely made,  and  expenses  incurred  for  es- 
cape from  impending  common  peril.  2  Phill. 
Ins.  c.  xv. 

It  is  also  made  upon  premium  notes  given 
by  the  members  of  mutual  fire  insurance 
companies,  constituting  their  capital,  and  be- 
ing a  substitute  for  the  investment  of  the 
paid  up  stock  of  a  stock  company;  the  lia- 
bility to  such  assessments  being  regulated  by 
the  charter  and  the  by-laws;  May,  Ins.  § 
549 ;   Herkimer  County  Mut  Ins.  Co.  v.  Full- 


ASSESSMENT 


259 


ASSETS 


er,  14  Barb.  (N.  Y.)  374;  New  England  Mut. 
Fire  Ins.  Co.  v.  Belknap,  9  Cush.  (Mass.)  140; 
Atlantic  Mut.  Fire  Ins.  Co.  v.  Sanders,  30 
N.  H.  252;  Susquehanna  Mut.  Fire  Ins.  Co. 
v.  Leavy,  130  Pa.  499,  20  Atl.  502,  505.  A 
member  of  a  mutual  insurance  company,  wbo 
has  paid  something  on  a  premium  note,  can 
be  assessed  for  further  losses  to  the  face  of 
the  note  only;  Davis  v.  I'archer  &  Stewart 
Co.,  82  Wis.  4S8,  52  N.  W.  771.  The  right  to 
assess  is  strictly  construed,  the  notes  being 
merely  conditional  promises  to  pay ;  Tesson 
v.  Ins.  Co.,  40  Mo.  39,  93  Am.  Dec.  293; 
American  Ins.  Co.  v.  Schmidt,  19  la.  502 ; 
Devendorf  v.  Eeardsley,  23  Barb.  (N.  Y.)  05G ; 
May,  Ins.  §  557.  As  to  assessments  on  cor- 
porate stock,  see  Stock. 

ASSESSMENT  DISTRICTS.  See  Assess- 
ment. 

ASSESSORS.     In     Civil    and    Scotch     Law. 

Persons  skilled  in  law,  selected  to  advise  the 
judges  of  the  inferior  courts.  Bell,  Diet. ; 
Dig.  1.  22 ;  Cod.  1.  51. 

As  to  admiralty  practice,  see  Nautical 
Assessors. 

ASSETS.  All  the  stock  In  trade,  cash, 
and  all  available  property  belonging  to  a 
merchant  or  company. 

The  property  in  the  hands  of  an  heir,  ex- 
ecutor, administrator,  or  trustee,  which  is 
legally  or  equitably  chargeable  with  the  ob- 
ligations which  such  heir,  executor,  admin- 
istrator, or  other  trustee  is,  as  such,  requir- 
ed to  discharge. 

Assets  enter  mains.  Assets  in  hand.  Such 
property  as  at  once  comes  to  the  executor 
or  other  trustee,  for  the  purpose  of  satisfy- 
ing claims  against  him  as  such.  Teiines  de 
la  Lev. 

Equitable  assets.  Such  as  can  be  reached 
only  by  the  aid  of  a  court  of  equity,  and 
which  are  to  be  divided,  pari  passu,  among 
all  the  creditors ;  2  Fonblanque  401 ;  Willis, 
Trust   118. 

Legal  assets.  Such  as  constitute  the  fund 
for  the  payment  of  debts  according  to  their 
legal  priority. 

Assets  per  descent.  That  portion  of  the 
ancestor's  estate  which  descends  to  the  heir, 
and  which  is  sulhcient  to  charge  him,  as  far 
as  it  goes,  with  the  specialty  debts  of  his 
ancestors;  2  Williams,  Ex.  (7th  Am.  ed.) 
•1553. 

Personal  assets.  Goods  and  personal  chat- 
tels to  which  the  executor  or  administrator 
is  entitled. 

Real  assets.  Such  as  descend  to  the  heir, 
as  an  estate  in  fee-simple. 

In  the  United  States,  generally,  by  stat- 
ute, all  the  property  of  a  decedent,  real  and 
personal,  is  liable  for  his  debts,  and  is  to 
be  applied  as  follows,  when  no  statute  pre- 
scribes a  different  order  of  application,  ex- 
hausting all  the  assets  of  each  class  before 
proceeding  to  the  next;  First,  the  personal 


estate    not   specifically    bequeathed;    s. 

-tate  devised  or  ordered  to  be  sold  f.>r 
the  payment  of  debts;  third,  real  estate  de- 
scended but  not  charged  with  debts;  fourth. 
real  estate  devised,  charged  generally  with 
the  payment  of  debts;  fifth,  general  pecunia- 
ry legacies  pro  rata;  sixth,  real  estate  de- 
vised, not  charged  with  debts;  4  Kent  421; 
2 1  Wh.  &  T.  Lead.  Cas.  72. 

With  regard  to  the  distinction  between 
realty  and  personalty  in  this  respect, 
iug  crops  go  to  the  administrator;  Penhal- 
low  v.  Dwight  7  Mass.  34,  5  Am.  Dec.  23  ; 
Kain  v.  Fisher,  6  N.  V.  597;  Cheney  v.  Rood- 
house,  135  111.  257,  25  N.  E.  1019;  he  is  en- 
titled to  a  crop  of  cotton,  the  cultivation  »t 
v.i.i  jh  was  practically  completed  at  intes- 
tate's death,  although  it  was  harvested  and 
sold  by  the  heirs  ;  Marx  v.  Nelms,  95  Ala. 
304,  10  South.  551.  See  Wright  v.  Watson, 
96  Ala.  530,  11  South.  034 ;  so  do  nurseries, 
though  not  trees  in  general;  Chapman  v. 
City  of  Lowell,  4  Cush.  (Mass.)  380;  as  do 
bricks  in  a  kiln;  Taunton  Copper  Co.  v.  Ins. 
Co.,  22  Pick.  (Mass.)  110;  so  do  chattels 
real,  as  interests  for  years  and  mortgages; 
and  hence  the  administrator  must  bring  the 
action  if  the  mortgagor  die  before  foreclos- 
ing; Lewis'  Heirs  v.  Lingo,  3  A.  K.  Marsh. 
( Ky.  i  249 ;  so  does  rent  provided  the  intes- 
tate dies  before  it  is  due ;  oil  produced  after 
testator's  death  and  accruing  as  royalty,  be- 
ing the  consideration  for  the  lease,  is  not  of 
the  corpus  but  a  part  of  the  income  of  the 
estate ;  In  re  Woodburn's  Estate,  138  Pa.  606, 
21  Atl.  16,  21  Am.  St.  Rep.  932.  Fixtures  go 
to  the  heir;  2  Smith,  Lead.  Cas.  99;  Jackson 
v.  Twenty  man,  2  Pet.  (U.  S.)  137,  7  L,  Ed. 
374 ;  Swift  v.  Thompson,  9  Conn.  67,  21  Am. 
Dec.  718.  In  copyrights  and  patents  the  ad- 
ministrator has  right  enough  to  get  them 
extended  and  beyond  the  customary  time; 
Wilson  v.  Rousseau,  4  How.  (U.  S.)  646,  11 
L.  Ed.  1141.  Where  land  is  sold  in  partition, 
and  one  dies  before  the  proceeds  are  distrib- 
uted, his  share  passes  as  personalty  to  his 
administrator;  State  v.  Harper,  54  Mo.  App. 
286.  Land  which  an  executor  is  directed  to 
sell  is  personalty ;  6  Ves.  520 ;  S  Yes.  547 ; 
Thomman's  Estate,  161  Pa.  444,  29  Atl.  84; 
but  a  naked  discretionary  power  of  sale  will 
not  work  a  conversion  until  it  is  exercised  : 
Sheridan  v.  Sheridan,  136  Pa.  14,  19  Atl. 
IOCS;  Darlington  v.  Darlington.  160  Pa.  65, 
28  Atl.  503;  In  re  Pyott's  Estate,  160  Pa. 
441,  28  Atl.  915,  921.  Where  the  right  of 
eminent  domain  has  been  exercised  it  con- 
verts the  land  into  personalty  in  Pennsyl- 
vania; Hough's  Estate,  3  D.  R.  Pa.  187;  but 
not  in  New  Jersey  :  Wetherill  v.  Hough,  52 
N.  J.  Eq.  683,  29  Atl.  591".  The  wife's  para- 
phernalia cannot  be  taken  from  her,  in  Eng- 
land, for  the  benefit  of  the  children  and 
heirs,  but  may  be  for  creditors.  In  the  Unit- 
ed states,  generally,  the  wearing  apparel  of 
widows  and  minors  is  retained  by  them,  and 


ASSETS 


260 


ASSIGNMENT 


is  not  assets.  So  among  things  reserved  is 
the  widow's  quarantine,  i.  e.  forty  days  of 
food  and  clothing;  Griswold  v.  Chandler,  5 
N.  H.  495 ;  Washburn  v.  Hale,  10  Pick.  (Mass.) 
430. 

A  claim  against  the  United  States  is  not 
a  local  asset  in  the  District  of  Columbia ; 
King  v.  U.  S.,  27  Ct.  CI.  529.  See  Woerner, 
Am.   L.   of  Admn. 

See  Marshalling  of  Assets. 

ASSEVERATION.  The  proof  which  a  man 
gives  of  the  truth  of  what  he  says,  by  ap- 
pealing to  his  conscience  as  a  witness. 

It  differs  from  an  oath  in  this,  that  by  the  latter 
he  appeals  to  God  as  a  witness  of  the  truth  of  what 
he  says,  and  invokes  him,  as  the  avenger  of  false- 
hood and  perfidy,  to  punish  him  If  he  speak  not  the 
truth.     See  Affikmation  ;    Oath. 

ASSIGN.  To  make  or  set  over  to  another. 
2  Bla.  Com.  320;  Watkinson  v.  Inglesby,  5 
Johns.    (N.  Y.)    391. 

To  appoint;  to  select;  to  allot.  3  Bla. 
Com.  58. 

To  set  forth;  to  point  out;  as,  to  assign 
errors.     Fitzherbert,  Nat.  Brev.  19. 

ASSIGNATION.  In  French  Law,  a  writ  of 
summons. 

ASSIGNEE.  One  to  whom  an  assignment 
has  been  made. 

Assignee  in  fact  is  one  to  whom  an  assign- 
ment has  been  made  in  fact  by  the  party 
having  the  right. 

Assignee  in  laic  is  one  in  whom  the  law 
vests  the  right:  as,  an  executor  or  adminis- 
trator.    See   Assignment. 

ASSIGNMENT  (Law  Lat.  assignatio,  from 
assigno, — ad  and  signum, — to  mark  for;  to 
appoint  to  one;  to  appropriate  to). 

A  transfer  or  making  over  to  another  of 
the  whole  of  any  property,  real  or  personal, 
in  possession  or  in  action,  or  of  any  estate 
or  right  therein. 

A  transfer  by  writing,  as  distinguished 
from  one  by  delivery. 

The  transfer  of  the  interest  one  has  in 
lands  and  tenements,  and  more  particularly 
applied  to  the  unexpired  residue  of  a  term 
or  estate  for  life  or  years;  Cruise,  Dig.  tit. 
xxxii.  (Deed)  c.  vii,  §  15;  1  Steph.  Com. 
507.  The  deed  by  which  the  transfer  is 
made  is  also  called  an  assignment;  Comyns, 
Dig.;  Bacon,  Abr. ;  La.  Civ.  Code,  art.  2612; 
Angell,  Assign.;  1  Am.  Lead.  Cas.  78,  85;  4 
Cruise,   Dig.   160. 

What  may  be  assigned.  Every  demand 
connected  with  a  right  of  property,  real  or 
personal,  is  assignable.  Every  estate  and 
interest  in  lands  and  tenements  may  be  as- 
signed, as  also  every  present  and  certain  es- 
tate or  interest  in  incorporeal  hereditaments, 
even  though  the  interest  be  future,  includ- 
ing a  term  of  years  to  commence  at  a  subse- 
quent period ;  for  the  interest  is  vested  in 
prwsenti,  though  only  to  take  effect  in  futu- 
ro;  Co.  Litt.  46  b;  rent  to  grow  due  (but  not 
that  in  arrear,  Demarest  v.  Willard,  8  Cow. 


[N.  T.]  206)  ;  a  right  of  entry  where  the 
breach  of  the  condition  ipso  facto  terminates 
the  estate;  Gwynn  v.  Jones'  Lessee,  2 
G.  &  J.  (Md.)  173;  Ensign  v.  Kellogg, 
4  Pick.  (Mass.)  1;  a  right  to  betterments; 
Lombard  v.  Ruggles,  9  Greenl.  (Me.)  62; 
the  right  to  cut  trees,  which  have  been  sold 
on  the  grantor's  land ;  Olmstead  v.  Niles,  7 
N.  H.  522;  Pease  v.  Gibson,  6  Greenl.  (Me.) 
81;  Emerson  v.  Fisk,  6  Greenl.  (Me.)  200, 
19  Am.  Dec.  206;  Kent  v.  Kent,  18  Pick. 
(Mass.)  569;  McCoy  v.  Herbert,  9  Leigh 
(Va.)  548,  33  Am.  Dec.  256;  11  Ad.  &  E. 
34;  a  cause  of  action  for  cutting  timber  on 
another's  land;  Webber  v.  Quaw,  46  Wis. 
118,  49  N.  W.  830;  a  right  in  lands  which 
may  be  perfected  by  occupation;  Smith  v. 
Rankin,  4  Yerg.  (Tenn.)  1,  26  Am.  Dec.  213; 
Cook  v.  Shute,  Cooke  (Tenn.)  67.  But  no 
right  of  entry  or  re-entry  can  be  assigned ; 
Eskridge  v.  McClure,  2  Yerg.  (Tenn.)  84; 
Littleton  §  347;  Greenby  v.  Wilcocks,  2 
Johns.  (N.  Y.)  1,  3  Am.  Dec.  379;  Gwyn  v. 
Wellborn,  18  N.  C.  319;  nor  a  naked  power; 
though  it  is  otherwise  where  it  is  coupled 
with  an  interest;  2  Mod.  317. 

To  make  an  assignment  valid  at  law,  the 
subject  of  it  must  have  an  existence,  actual 
or  potential,  at  the  time  of  the  assignment; 
Needles  v.  Needles,  7  Ohio  St.  432,  70  Am. 
Dec.  85  ;  15  Mees.  &  W.  110 ;  Moody  v.  Wright, 
13  Mete.  (Mass.)  17,  46  Am.  Dec.  706;  Skip- 
per v.  Stokes,  42  Ala.  255,  94  Am.  Dec.  646. 
But  courts  of  equity  will  support  an  assign- 
ment not  only  of  interests  in  action  and  con- 
tingency, but  of  things  which  have  no  pres- 
ent, actual,  or  potential  existence,  but  rest 
in  mere  possibility  only;  2  Story,  Eq.  Jur. 
(13th  ed.)  §§  1040  0,  1055;  Fearne,  Cont 
Bern.  527;  Smedes  v.  Bank,  20  Johns.  (N. 
Y.)  380;  as  an  heir's  possibility  of  inherit- 
ance; Fitzgerald  v.  Vestal,  4  Sneed  (Tenn.) 
258 ;  see  1  Ch.  Rep.  29 ;  Bacon  v.  Bonham,  33 
N.  J.  Eq.  614 ;  East  Lewisburg  Lumber'  & 
Mfg.  Co.  v.  Marsh,  91  Pa.  96;  Mandeville  v. 
Welch,  5  Wheat.  2S3,  5  L.  Ed.  87.  "An  as- 
signment cannot  at  law  pass  future  proper- 
ty, but  it  may  be  made  effectual  against  fu- 
ture property  on  the  ground  that  a  court  of 
equity  will  in  a  suitable  case  enforce  it  as 
a  contract."  36  Ch.  D.  348,  351.  "It  has 
long  been  settled  that  future  property,  pos- 
sibilities and  expectancies  are  assignable  in 
equity  for  value.  The  mode  *  *  *  is 
absolutely  immaterial  provided  the  inten- 
tion of  the  parties  is  clear ;"  13  A.  C.  523. 

The  assignment  of  personal  property  is 
chiefly  interesting  in  regard  to  choses  in 
action  and  as  to  its  effect  in  cases  of  insol- 
vency and  bankruptcy. 

A  chose  in  action  cannot  be  transferred 
at  common  law ;  10  Co.  48 ;  Litt.  266  a ;  Thall- 
himer  v.  Brinckerhoff,  3  Cow.  (N.  Y.)  623, 
15  Am.  Dec.  308;  Greenby  v.  Wilcocks,  2 
Johns.  (N.  Y.)  1,  3  Am.  Dec.  379;  1  Cra. 
(U.  S.)  367;  Pillsbury  v.  Mitchell,  5  Wis. 
17;  Chapman  v.  Holmes'  Ex'rs,  10  N.  J.  L. 


ASSIGNMENT 


2G1 


ASSIGNMENT 


20.  But  the  assignee  may  sue  in  the  assign- 
or's name,  and  the  assignment  will  be  con- 
sidered valid  in  equity.     See  Infra. 

In  equity,  as  well  as  at  law,  some  choses 
In  action  are  not  assignable  on  the  ground 
that  they  are  against  public  policy,  as  an 
officer's  pay,  or  commission;  2  Anstr.  533; 
l  Ball  &  B.  Ch.  387;  l  Swaast  74;  Schwenfe 
v.  Wyckoff,  46  N.  J.  i:<|.  560,  20  Atl.  259,  9 
L.  R.  A.  221,  1!)  Am.  St.  Rep.  438;  or  the 
salary  of  a  judge;  Morrison  v.  Deaderick,  10 
Humphr.  (Tenn.)  342;  5  Moore,  P.  C.  C.  210; 
contra,  State  v.  Bastings,  15  Wis.  78;  or  of 
unearned  pay  of  public  ollicers  generally; 
Bliss  v.  Lawrence,  58  .v.  Y.  442,  17  Am.  Rep. 
273;  Bowery  Nat.  Hank  of  New  York  v.  Wil- 
son, 122  N.  Y.  47S,  IT)  X.  E.  855,  9  L.  R.  A. 
706,  19  Am.  St.  Rep.  507;  Inhabitants  of 
Wayne  Township  v.  Cahill,  49  N.  J.  L.  144, 
6  Atl.  G21 ;  Schloss  v.  Hewlett,  81  Ala.  266, 
1  South.  2G3  (but  see  contra,  Johnson  v. 
Pace,  78  111.  143;  Manly  v.  Bitzer,  91  Ky. 
596,  16  S.  W.  464,  34  Am.  St.  Rep.  242; 
Brackett  v.  Blake,  7  Mete.  [Mass.]  335,  41 
Am.  Dec.  442;  and  also  August  v.  Crane,  28 
Misc.  Rep.  549,  59  N.  Y.  Supp.  583;  and 
Ciples  v.  Blair.  Rice  Eq.  [S.  C]  60,  where 
costs  and  fees  were  distinguished  from  sal- 
ary and  held  assignable)  ;  or  claims  fur  fish- 
ing or  other  bounties  from  the  government: 
or  rights  of  action  for  fraud  or  tort  as  a 
right  of  action  for  assault;  or  in  trovers- 
Gardner  v.  Adams,  12  Wend.  (N.  Y.)  297 
(aliter  of  a  right  of  action  in  replevin;  Foy 
v.  R.  Co.,  24  Barb.  [N.  Y.]  3S2)  ;  or  of  the 
sale  of  fish  not  yet  caught;  Low  v.  Pew,  108 
Mass.  350,  11  Am.  Rep.  357;  assignment  by  a 
prosecuting  attorney;  Holt  v.  Thurman,  111 
Ky.  84,  63  S.  W.  280,  98  Am.  St.  Rep.  399 ;  or 
by  a  sheriff  to  secure  a  promissory  note;  Bow- 
ery Nat.  Rank  v.  Wilson,  122  N.  Y.  478,  25  N. 
E.  855,  9  L.  R.  A.  706,  19  Am.  St.  Rep.  507 ;  a 
cause  of  action  for  deceit  is  assignable;  Dean 
v.  Chandler,  44  Mo.  App.  338;  and  it  seems 
that  all  rights  of  action  which  would  survive 
to  the  personal  representatives,  may  be  as- 
signed;  Butler  v.  R.  Co.,  22  Barb.  (N.  Y.) 
110;  Patten  v.  Wilson,  34  Pa.  299;  Jordan 
v.  Gillen,  44  N.  H.  424;  Walton  v.  Rafel.  7 
Misc.  663,  28  N.  Y.  Supp.  10;  so  of  a  right 
of  action  against  a  common  carrier  for  not 
delivering  goods;  Jordan  v.  Gillen,  44  N.  H. 
424;  or  for  injury  to  goods;  Norfolk  &  W. 
R.  Co.  v.  Read,  87  Va.  185,  12  S.  E.  395.  It 
is  well  settled  that  a  mere  expectancy  or 
possibility  is  not  assignable  at  law,  conse- 
quently wages  to  be  earned  in  the  future, 
not  under  an  existing  engagement,  but  under 
engagements  subsequently  to  be  made,  are 
not  assignable;  Herbert  v.  Bronson,  125 
Mass.  475;  Bell  v.  Mulholland,  90  Mo.  App. 
612;  Lehigh  Valley  R.  Co.  v.  Woodring,  116 
Pa.  513,  9  Atl.  5S.  If  there  is  an  existing 
employment  under  which  it  may  reasonably 
be  expected  that  the  wages  will  be  earned. 
then  the  possibility   is  coupled  with  an  in- 


terest and  the  wagee 

ijkeit   v.   Andrews,   74  Ohio   St   104,  77  N.   E. 
717.  5  L.  R.  A.   (N.   8 

Mallin   v.    Wenham,   209   1.  x.   E. 

564,  65  L.   R,  A.  602,   103   A; 
Edwards  v.  Pet 

6  a  in.  st.  Rep.  207 :  Metcalf  v.  B 
la.  443,  r,i  n.  w.  867,  43  Am.  St 
Peterson  v.  Rail,  121   la.  544,  97  X.  W.  79; 
Rell    v.  Mulholland,  90   Mm.   App.  612; 
|  v.  Clough,  36   Mich.   436,   24  Am.   Rep. 
Manly   v.   Bitzer,   91    Ky.   596,    16   S.    W.   464, 
Mn.  St.   Rep.  242;  Schilling  v.   Mullen.  55 
Minn.  122,  56  X.  W.  586,  13  Am.  St.  Rep.  475; 
Augur  v.  -Packing  Co.,   39  Conn.   536;   Gar- 
land v.  Harrington,  51  X.  H.  409;  Mulhall  v. 
Quinn.  l  Gray  (Mass.)  105,  61  Am,  Dec  414; 
and    this    is   true  though    the   em]  Loyment    is 
for  no  definite  period  and  may  be  terminated 
at  any  time  by  either  party;  Thayer  v.  Kel- 
ley,  28  vt.  19,  65  Am.  Dec.  220.    The  disl 
tion  between  the  two  classes  of  cases  Is  well 
illustrated    where    a    workman    assigned    all 
the  wages  he  would  earn  in  a  year  from  his 
then    employer,    and    having    Left    that    em- 
ployment for  two  months  and  afterwards  re- 
turned to  it,  the  wages  of  the  second  employ- 
ment  did   not   pass,    being  considered   as   a 
mere  possibility;  O'Keefe  v.  Allen,  20  R.  I. 
414,  39  Atl.  752,  78  Am.  St.  Rep.  884.     It  has 
been  suggested   that  to   prevent  the  assign- 
ment  of    future   earnings   is    in    accordance 
with   public  policy;    Woodring   v.  R.   Co.,    2 
Pa.  Co.  Ct.  465;  but  while  that  is  approved, 
it  is  suggested  that  such  a  policy  must  be 
a     matter    of    legislative    intervention;     14 
Ilarv.   L.   Rev.  379.     The  assignment    by   a 
master  in  chancery  of  his  unearned  fees   is 
void;    Shannon   v.   Bruner,   36   Eed.    117:   as 
I  is  the  assignment  by  an  executor  of  his 
I  before  they  are  ascertained  and  fixed;  In  re 
Worthington,  141  N.  Y.  9,  35   X.   E.   929,   23 
L.  R.  A.  97.    A  cause  of  action  for  malicious 
prosecution  is  not  assignable  even  after  ver- 
dict; Lawrence  v.  Martin.  22  CaL   174;  But- 
ler v.  R.  Co.,  22  Barb.   (X.  Y.  >   IP);  North  v. 
Turner,  9  S.  &  R.   (Pa.)    24-1:   6  Madd.   59; 
2   M.    &   K.    592 ;    nor   is  a   right   to    recover 
damages    for    false   Imprisonment  :    Hunt   v. 
Conrad,   47  Minn.   557,   50  X.   W.  614,    14   L. 
j  R.  A.  512;  nor  any  rights  pendente  lite.    Nor 
can   personal   trusts  be   assigned;    Ark;;; 
Valley   Smelting  Co.  v.   Min.  Co.,   127  1.    S. 
379,  8  Sup.  Ct.  1308,  32  L.   Ed.  246;  as  the 
right  of  a  master  In  his  apprentice;  Graham 
v.   Kinder,   11   B.   Monr.    (Ky.)    <',u;    Davis   V. 
Coburn,  8  Mass.  299;  or  the  dutiis  of  a   .' 
tamentary  guardian:  Balch  v.  smith,  vj  x. 
II.  437;  nor  a  contract  for  the  performance 
of  personal  services:    Ilalbert  v.    Peering,   4 
Litt.   (Ky.)   9:  or  one  involving  a  relation  of 
personal    confidence;    Burck    v.    Taylor,    152 
U.  S.  634,  14  Sup.  Ct.  696,  38  L.  Ed.  578;  or 
one  which  couples  the  delegation  of  a  duty 
with  the  transfer  of  a  right.     This  was  sub- 
stantially  the  ground  of  the  case  of  Boston 


ASSIGNMENT 


2G2 


ASSIGNMENT 


Ice  Co.  v.  Potter,  in  123  Mass.  28,  25  Am. 
Rep.  9,  where  a  contract  to  supply  merchan- 
dize was  held  not  assignable  since  "a  man  has 
the  right  to  determine  with  whom  he  shall 
contract,"  which  case  has  been  much  dis- 
cussed, and  its  name  coupled  with  the  doc- 
trine declared  by  it;  see  7  Columbia  D.  Rev. 
32 ;  20  Ilarv.  L.  Rev.  424.  In  England  courts 
have  gone  farther,  holding  that  a  contract 
was  not  assignable  when  the  result  would 
be  to  impose  on  one  party  a  greater  liability 
than  he  intended  to  assume ;  [1901]  2  K.  B. 
Sll,  where  a  contract  to  supply  a  small  com- 
pany was  held  not  assignable  to  a  powerful 
company  with  larger  capital  which  would 
require  much  larger  supplies,  the  court  ex- 
pressly declining  to  "accept  the  contention 
that  only  those  contracts  in  which  personal 
confidence  or  ability  is  involved  cannot  be 
assigned."  An  invention  may  be  transferred 
by  parol;  Jones  v.  Reynolds,  120  N.  Y.  213, 
24  N.  E.  279 ;  every  patent  or  interest  there- 
in is  assignable;  R.  S.  U.  S.  §  4898;  an  as- 
signment of  a  contingent  remainder,  for  a 
valuable  consideration,  while  void  in  law,  is 
enforceable  in  equity;  Watson  v.  Smith,  110 
N.  C.  6,  14  S.  E.  640,  28  Am.  St.  Rep.  G65. 
An  assignment  of  the  proceeds  of  sale  of 
merchandize  to  be  delivered  in  the  future, 
where  no  contract  exists  requiring  such  de- 
livery by  the  assignor,  is  not  valid,  even 
though  notice  of  it  was  accepted  by  the  as- 
signee, and  the  amount  actually  due  was 
not  secured  from  garnishment  by  a  creditor 
of  the  assignor ;  O'Niel  v.  Kerr  Co.,  124  Wis. 
234,  102  N.  W.  573,  70  L.  R.  A.  338.  But  a 
valid  assignment  may  be  made  of  a  portion 
of  the  contract  price  of  a  building  contract- 
ed to  be  erected  by  the  assignor,  but  not  yet 
erected,  and  such  assignment  need  not  be  in 
writing  nor  accompanied  by  any  transfer  of 
the  contract  itself ;  Lanigan's  Adm'r  v.  Cur- 
rier Co.,  50  N.  J.  Eq.  201,  24  Atl.  505. 

In  the  assignment  of  a  chose  in  action  it 
is  essential  that  it  be  delivered;  Lewis  v. 
Mason's  Adm'r,  84  Va.  731,  10  S.  E.  529; 
Hodenpuhl  v.  HInes,  160  Pa.  466,  28  Atl.  825; 
a  partial  assignment  of  choses  in  action  is 
good  in  equity,  although  the  legal  title  re- 
mains in  the  assignor;  Texas  Western  Ry. 
Co.  v.  Gentry,  69  Tex.  625,  8  S.  W.  98;  the 
assignment  of  a  fractional  part  of  a  claim 
is  good,  where  the  party  who  is  to  pay  does 
not  object;  Kingsbury  v.  Burrill,  151  Mass. 
199,  24  N.  E.  36. 

It  is  "a  rule  of  general  jurisprudence  that 
if  a  person  enters  into  a  contract,  and,  with- 
out notice  of  any  assignment,  fulfills  it  to 
the  person  with  whom  he  made  the  contract, 
he  is  discharged  from  his  obligation;."  L. 
R.  5  C.  P.  594,  per  Willes,  J. 

Whether  a  prior  assignment  of  a  chose  in 
action  will  be  protected  when  no  notice  of 
it  is  given  to  tile  subsequent  assignee  or  to 
the  trustee  or  debtor,  is  a  question  somewhat 
complicated  by  the  adherence  of  the  English 


courts  to  a  doctrine  known  as  the  rule  of 
Dearie  v.  Hall,  3  Russ.  1,  adopted  also  in 
Loveridge  v.  Cooper,  id.  30.  •  This  rule  is  that 
an  assignment  of  an  equitable  interest,  or 
of  a  chose  in  action,  without  notice  to  the 
person  having  legal  dominion  of  the  subject 
matter,  will  be  postponed  to  one  made  sub- 
sequently, of  which  notice  is  given.  In  ap- 
plying this  rule  the  English  courts  have  held 
that  inquiry  by  the  later  assignee  is  imma- 
terial; 3  CI.  &  Fin.  456 ;  and  that  it  is  also 
immaterial  that  there  was  no  trustee  or  per- 
son having  dominion  of  the  fund  to  whom 
the  first  assignee  could  give  notice;  [1904]  2 
Ch.  385  (where  it  was  said  that  "Dearie  v. 
Hall  is  indisputable  law,  although  many 
judges  have  said  that  they  will  not  extend 
it")  ;  that  knowledge  of  the  first  assignment 
accidentally  acquired  by  the  trustee  would 
protect  it  where  there  had  been  no  formal 
notice;  L.  R.  3  Ch.  App.  488;  and  that,  in 
case  of  inquiry  by  the  subsequent  assignee, 
the  trustee  is  not  bound  to  answer;  [1891]  3 
Ch.  82 ;  that  notice  to  one  of  several  trustees 
was  sufficient,  he  not  being  the  assignor;  4 
De  G.,  F.  &  J.  147;  but  knowledge  of  the  as- 
signor, being  one  of  the  trustees,  did  not 
avail  in  default  of  notice  to  the  other  two; 
4  Drew.  635;  [1901]  1  Ch.  365,  where  Cozens- 
Hardy,  J.,  said:  "I  do  not  profess  to  be 
able  to  discover  any  definite  principle  upon 
which  the  rule  in  Dearie  v.  Hall  is  founded. 
Nevertheless  it  must  now  be  recognized  as  a 
positive  rule,  though  it  is  not  one  to  be  ex- 
tended." This  rule  was  recognized  as  law  in 
[1893]  A.  C.  369,  but  it  was  critically  exam- 
ined and  discussed  by  both  L.  Ch.  Herschell 
and  Lord  Macnaghten  and  it  is  manifest 
that  nothing  short  of  the  rigor  of  the  Eng- 
lish observance  of  the  doctrine  of  stare  deci- 
sis has  maintained  its  authority. 

The  rule  of  the  English  courts  was  ap- 
plied to  an  assignment  of  an  interest  in  an 
English  trust,  made  by  one  domiciled  in  New 
York;  [1905]  2  Ch.  117,  where  the  court  ad- 
mitted the  validity  of  the  assignment  under 
the  lex  loci  contractus,  but  considered  that 
the  law  of  the  court  administering  a  trust 
fund  should  settle  the  order  of  payment  as 
between  claimants. 

The  English  rule  requiring  notice  to  the 
holder  of  the  legal  title  or  trustee  of  an  as- 
signment of  the  equitable  interest  or  chose 
in  action,  has  been  followed  in  Judson  v. 
Corcoran,  17  How.  (U.  S.)  614,  15  L.  Ed. 
231;  Methven  v.  Power  Co.,  66  Fed.  113,  13 
C.  C.  A.  362;  Spain  v.  Hamilton's  Adm'r,  1 
Wall.  (U.  S.)  604,  17  L.  Ed.  619;  Burck  v. 
Taylor,  152  U.  S.  634,  14  Sup.  Ct.  696,  38  L. 
Ed.  578;.  Vanbuskirk  v.  Ins.  Co.,  14  Conn. 
141,  36  Am.  Dec.  473;  Phillips'  Estate,  205 
Pa.  515,  55  Atl.  213,  66  L.  R.  A.  760,  97  Am. 
St.  Rep.  746 ;  Murdoch  v.  Finney,  21  Mo.  138 
(and  see  Thomas  v.  Liebke,  13  Mo.  App. 
389);  Merchants'  and  Mechanics'  Bank  of 
Chicago  v.  Hewitt,  3  la.  93,  66  Am.  Dec.  49 ; 
Graham  Paper  Co.  v.  Pembroke,  124  Cal.  120, 


ASSIGNMKNT 


2G3 


ASSIGNMENT 


56  Pac  627,  44  L.  R.  A.  634,  71  Am.  St.  Rep. 
26;  Meier  v.  Hess,  23  Or.  602,  31'  Pac.  755. 
In  other  cases  the  assignment  is  held  to  be 
effectual  without  notice  even  against  a  sub- 
sequent assignment  of  which  notice  was 
given;  Putnam  v.  Story,  132  Mass.  205; 
ing  v.  Riley,  50  N.  II.  408;  Garland  v.  Har- 
rington, 51  N.  n.  409;  Fortunafn  \.  P 
147  N.  Y.  277,  41  N.  E.  572;  Central  Trust 
Co.  of  New  York  v.  Imp.  Co.,  169  N.  Y.  314, 
62  N.  E.  3S7.     The  ■  collected  in  1 

Perry  Trusts,  §  438,  note.  In  Clodfelter  v. 
Cox,  l  Sneed  (Tenn.)  339,  60  Am.  Dec.  157, 
it  is  said  that  there  is  an  Irreconcilable  con- 
flict in  the  American  cases,  and  though  the 
weight  of  authority  seems  to  be  against  I  In- 
English  rule,  the  latter  is  considered  more 
reasonable  and  safe  and  therefore  followed. 
In  a  note  to  14  Conn.  141,  the  view  of  the 
Tennessee  court  in  that  case  as  to  the  weight 
of  authority  is  questioned  and  it  is  si, 
ed  as  more  correct  to  say  that  "by  the  pre- 
ponderance of  authority,"  an  assignee  of  a 
chose  in  action  without  notice  is  protected 
against  creditors  of  the  assignor  but  not  as 
against  a  subsequent  assignee  for  value  and 
in  good  faith,  and  this  is  said  to  be  the  Eng- 
lish rule  properly  stated;  36  Am.  Dec.  476 
note. 

The  assignment  of  bills  of  exchange  and 
promissory  notes  by  general  or  special  en- 
dorsement constitutes  an  exception  to  the 
law  of  transfer  of  choses  in  action.  When 
negotiable  (i.  e.,  made  payable  to  order), 
they  are  transferable  by  the  statute  of  3  &  4 
Anne;  they  may  then  be  transferred  by  en- 
dorsement; the  holder  can  sue  in  his  own 
name,  and  the  equitable  defences  which 
might  have  existed  between  the  promisor  and 
the  original  promisee  are  cut  out;  Bump  v. 
Van  Orsdale,  11  Barb.  (N.  Y.)  637,  639;  An- 
drews v.  Carr,  26  Miss.  577;  Neyfong  v. 
Wells,  Hard.  (Ky.)  562;  where"  a  payee  en-' 
dorses  a  note  to  third  party  adding  a  guar- 
anty of  payment,  the  contract  and  guaranty 
are  assignable;  Harbord  v.  Cooper,  43  Minn. 
466,  45  N.  W.  860.  The  assignee  of  a  bill  of 
lading  has  only  such  rights  as  the  consignee 
would  have  had;  Haas  v.  R.  Co.,  81  Ga.  702, 
7  S.  E.  629. 

An  assignee  stands  in  the  place  of  his  as- 
signor and  takes  simply  his  assignor's  rights ; 
Taliaferro  v.  Bank,  71  Md.  200,  17  Atl.  1036. 

The  most  extensive  class  of  assignments 
are  the  general  assignments  in  trust  made 
by  insolvent  and  other  debtors  for  the  pay- 
ment of  their  debts.  These  are  usually  reg- 
ulated by  state  statutes. 

The  right  of  an  insolvent  debtor  to  make 
an  assignment  for  the  benefit  of  his  credi- 
tors exists  at  common  law,  and  when  good  in 
the  state  where  executed  is  good  in  every 
state;  Weider  v.  Maddox.  66  'lex.  372,  1  S. 
W.  168,  59  Am.  Rep.  617.  Where  the  assign- 
ment is  valid  under  the  laws  of  one  state 
it  will  pass  a  debt  to  the  assignor  due  under 
contract  made  there  with  a  citizen  of  another 


state,  though  tl. 

other  state;    O'Neill  v.  K 

(N.  Y.)  399. 

Voluntary  or  common   law   -  .ts  of 

property  in  other  states  will 
cept  so  far  as  they  come  into  conflict  with 
the  rights  of  local  creditors  or  with  th< 
or  public  policy  of  the  state  in  which 
siginnent  is  sought  to  be  enforced;  Harnett 
v.  Kinney,  1-17  U.  S.  476,  13  Snp.  I 
I-.  Ed.  247.  With  respect  to  statutory  as- 
signments,  the  prevailing  doctrine  is  that  a 
conveyance  under  a  state  Insolvent  law  op- 
erates only  upon  property  within  that  state 
and  that  with  respect  to  property  in  other 
states  it  is  given  only  such  effect  as  the  law 
of  such  other  state  would  permit;  and  that 
in  general  it  must  give  way  to  the  claims  of 
creditors  pursuing  their  remedies  there.  It 
passes  no  title  to  real  estate  in  another  state. 
Nor  as  to  personal  property  will  the  title  ac- 
quired by  it  prevail  against  the  garnishment 
of  a  debt  due  by  the  resident  of  another 
state  or  the  seizure  of  tangible  property 
therein   under  the  laws  of  tl  where 

the  property  is:  Barth  v.  Backus,  140  N.  Y. 
240,  35  N.  K.  425,  23  L.  R.  A.  47,  37  Am.  St. 
Rep.  545;  Rhawn  v.  Pearce,  110  in.  350,  51 
Am.  Rep.  691;  Catlin  v.  Silver-Plate  Co.,  12:; 
Ind.  477.  24  N.  B.  250,  8  L.  R.  A.  62,  18  Am. 
St.  Rep.  33S;  Security  Trust  Co.  v.  Dodd,  173 
U.  S.  024.  19  Sup.  Ct.  545,  43  L.  Ed.  845; 
King  v.  Cross,  175  U.  S.  396,  20  Sup.  Ct.  131, 
44  L.  Ed.  211. 

A  debtor  making  an  assignment  for  cred- 
itors may  legally  choose  his  own  ti 
the  title  passes  out  of  him  to  them ;  Nichols 
v.  McEwen,  21  Barb.  (N.  V.)  65;  Wilt  v. 
Franklin,  1  Binn.  (Pa.)  514,  2  Am.  Dec.  474; 
Hannah  v.  Carrington.  18  Ark.  85:  Hemp- 
stead v.  Johnston,  IS  Ark.  VS\.  65  Am 
458;  Vansands  v.  Miller,  24  Conn.  180.  The 
assent  of  creditors  will  ordinarily  be  pre- 
sumed; Ashley's  Adm'r  v.  Robinson,  29  Ala. 
112,  65  Am.  Dec.  387;  Eager  v.  Com..  4  Mass. 
183;  Sebor  v.  Armstrong,  4  Mass.  206;  De 
Forest  v.  Bacon,  2  Conn.  633;  North  v.  Tur- 
ner, 9  S.  &  R.  (Pa.)  244;  Copeland  v.  Wild. 
8  Greenl.  (Me.)  411. 

In  some  states  the  statutes  provide  that 
the  assignment  shall  be  for  the  benefit  of  all 
creditors  equally,  in  others  preferences  are 
legal.  Independently  of  bankrupt  and  insol- 
vent laws,  or  laws  forbidding  preferences, 
priorities  and  preferences  in  favor  of  partic- 
ular creditors  are  allowed.  Such  preference 
is  not  considered  inequitable,  nor  is  a  stipu- 
lation that  the  creditors  taking  under  ir  shall 
release  the  debtor  from  till  further  claims; 
Sebor  v.  Armstrong.  4  Mass.  206;  Doe  v. 
Scribner,  41  Me.  277:  Nutter  v.  Harris,  9 
Ind.  88;  Pearpolnt  v.  Graham,  4  Wash.  C.  C. 
232,  Fed.  Cas.  No.  io>77 ;  Cameron  v.  Mont- 
gomery, 13  S.  &  K.  (Pa.)  132;  Brazier  v. 
Fredericks,  24  N.  .7.  I..  162;  r.illinu's  v.  Mill- 
ings. 2  Cal.  lo7.  56  Am.  Dec.  319;  Cooper  v. 
McClun,  16  111.  435;  Miller  v.  Conklin,  17  Ga. 


ASSIGNMENT 


264 


ASSIGNMENT 


430,  63  Am.  Dec.  248;  XL  S.  v.  Lenox, -2 
Paine,  180,  Fed.  Cas.  No.  15,592;  Murray  v. 
Riggs,  15  Johns.  (N.  Y.)  571;  Union  Bank 
of  Maryland  v.  Kerr,  7  Md.  88;  American 
Exchange  Bank  v.  Inloes,  id.  381;  Hatton's 
Adin'rs  v.  Jordan,  29  Ala.  200;  Haven  v. 
Richardson,  5  N.  H.  113;  Brooks  v.  Marbury, 
11  Wheat.  (U.  S.)  78,  6  L.  Ed.  423;  Savings 
Bank  of  New  Haven  v.  Bates,  8  Conn.  505; 
Hicks  v.  Harris.  26  Miss.  423;  Bellamy  v. 
Sheriff,  6  Fla.  62;  Nightingale  V.  Harris,  6 
R.  I.  328;  Lake  Shore  Banking  Co.  v.  Fuller, 
110  Pa.  150,  1  Atl.  731 ;  Peters  v.  Bain,  133 
U.  S.  G70,  10  Sup.  Ct.  354,  33  L.  Ed.  696; 
Nordlinger  v.  Anderson,  123  N.  Y.  544,  25  N. 
E.  992  ;  Van  Wyck  v.  Read,  43  Fed.  716.  See 
Preferences. 

How  made.     It  used  to  be  held  that  the 
instrument  of  assignment  must  be  of  as  high 
a   character   and   nature  as  the  instrument 
transferred;    but  now  a  parol  (usually  writ- 
ten) assignment  may  transfer  a  deed,  if  the 
deed  be  at  the  same  time  delivered;    Canna- 
day  v.  Shepard,  55  N.  C.  224;    Jones  v.  Wit- 
ter, 13  Mass.  304;    Porter  v.  Bullard,  26  Me. 
448;    Jackson  v.  Housel,  17  Johns.    (N.  Y.) 
284;    Prescott  v.  Hull,  id.  292;    Morange  v. 
Edwards,  1  E.  D.  Smith   (N.  Y.)   414;    Onion 
v.  Paul,  1  Harr.  &  J.  (Md.)   114;    Lessee  of 
Bentley's    Heirs    v.    Deforest,    2    Ohio    221; 
Dtfrst  v.  Swift,  11  Tex.  273 ;   5  Ad.  &  E.  107 ; 
1  Madd.  Ch.  53.     When  the  transfer  of  per- 
sonal chattels  is  made  by  an  instrument  as 
formal   as  that  required  in  the  assignment 
of  an  interest  in  lands,  it  is  commonly  called 
a  Mil  of  sale  (which  see).    See  as  to  the  dis- 
tinction, Blank  v.  German,  5  W.  &  S.   (Pa.) 
36.    In  most  cases,  however,  personal  chattels 
are  transferred  by  mere  mote  or  memoran- 
dum, or,  as  in  the  case  of  negotiable  paper, 
by  mere  endorsement;    Ball  v.  Larkin,  3  E. 
D.  Smith   (N.  Y.)    555;    Ryan  v.  Maddux,  6 
Cal.  247;    Field  v.  Weir,  28  Miss.  56;   Worth- 
ington  v.  Curd,  15  Ark.  491.     "To  constitute 
an  assignment  of  a  chose  in  action,  in  equity, 
no  particular  form  is  necessary;"    Spain   v. 
Hamilton's  Adrnr,  1  Wall.    (U.  S.)  604,  624, 
17  L.  Ed.  619.     Any  binding  appropriation  of 
money  or  property  to  a  particular  use  is  a 
transfer  of  ownership ;    Watson  v.   Bagaley, 
12  Pa.  167,  51  Am.  Dec.  595;    Fourth  Street 
Nat.  Bank  v.  Yardley,  165  U.  S.  634,  17  Sup. 
Ct.  439,  41  L.  Ed.  855 ;    Clark  v.  Iron  Co.,  81 
Fed.  310,  26  C.  C.  A.  423.    An  assignment  of 
a   chose  in   action   by   parol   as   security  is 
valid;   Union  Trust  Co.  v.  Bulkeley,  150  Fed. 
510,  80  C.  C.  A.  328,  and  so  of  book  accounts 
to  be  thereafter  earned  by  the  assignor;    L. 
R.  13  App.  Cas.  523. 

In  France  an  assignment  of  a  debt  must 
be  in  writing;  the  registration  duty  must  be 
paid  thereon  and  formal  notice  in  writing 
must  be  served  after  registration  by  an  offi- 
cer of  the  court,  called  a  "huissier."  Notice 
can  be  replaced  by  the  debtor's  formal  ac- 
knowledgment  in    a   notarial    French    deed. 


This  passes  a  legal  title  to  the  debt;    [1900] 
1  Ch.  602. 

The  proper  technical  and  opei-ative  words 
in  assignment  are  "assign,  transfer,  and  set 
over ;"  but  "give,  grant,  bargain,  and  sell," 
or  any  other  words  which  show  the  intent  of 
the  parlies  to  make  a  complete  transfer,  will 
work  an  assignment;  13  Sim.  469;  31  Beav. 
351;  Kimball  v.  Donald,  20  Mo.  577,  64  Am. 
Dec.  209. 

No  consideration  is  necessary  to  support 
the  assignment  of  a  term;  1  Mod.  263;  Mc- 
Clenahan  v.  Gwynn,  3  Munf.  (Va.)  556. 
Now,  by  the  statute  of  frauds,  all  assign- 
ments of  chattels  real  must  be  made  by  deed 
or  note  in  writing,  signed  by  the  assigning 
party  or  his  agent  thereunto  lawfully  au- 
thorized by  writing;  1  B.  &  P.  270.  If  a 
tenant  assigns  the  whole  or  a  part  of  an  es- 
tate for  a  part  of  the  term,  it  is  a  sub-lease, 
and  not  an  assignment ;  Patten  v.  Deshon,  1 
Gray  (Mass.)  325;  Astor  v.  Miller,  2  Paige, 
Ch.  (N.  Y.)  68;  Buckingham  v.  Granville 
Alexandria  Soc,  2  Ohio  3G9;  1  Washb.  R.  P. 
*327. 

Effect  of.  During  the  continuance  of  the 
assignment,  the  assignee  is  liable  on  all  cov- 
enants running  with  the  land,  but  may  rid 
himself  of  such  continuing  liability  by  trans- 
fer to  a  mere  beggar;  5  Coke  16;  Ans. 
Contr.  232 ;  1  B.  &  P.  21 ;  1  Sch.  &  L.  310 ; 
1  Ball  &  B.  238 ;  Dougl.  56,  183 ;  (but  a  con- 
veyance to  an  irresponsible  person  to  avoid 
paying  a  ground-rent  accruing  on  the  land 
conveyed  was  held  not  to  release  the  original 
covenantor;  American  Academy  of  Music  v. 
Smith,  54  Pa.  130).  By  the  assignment  of 
a  right,  all  its  accessories  pass  with  it:  for 
example,  the  collateral  security,  or  a  lien 
on  property,  which  the  assignor  of  a  bond 
had,  will  pass  with  it  when  assigned;  Potts 
v.  Water  Power  Co.,  9  N.  J.  Eq.  592 ;  Waller 
v.  Tate,  4  B.  Monr.  (Ky.)  529;  Pattison  v. 
Hull,  9  Cow.  (N.  Y.)  747;  Eskridge  v.  Mc- 
Clure,  2  Yerg.  (Tenn.)  84;  Boardman  v. 
Hayne,  29  la.  339;  Willis  v.  Twambly,  13 
Mass.  204 ;  Craig  v.  Parkis,  40  N.  Y.  181,  100 
Am.  Dec.  469 ;  Coffing  v.  Taylor,  16  111.  457. 
So,  also,  what  belongs  to  the  thing  by  the 
right  of  accession  is  assigned  with  it ;  Hodg- 
es v.  Harris,  6  Pick.  (Mass.)  360;  Horn  v. 
Thompson,  31  N.  H.  562. 

An  assignee  for  the  benefit  of  creditors 
takes  the  property  assigned  subject  to  all  ex- 
isting valid  liens  and  equities  against  the 
assignor;  Helm  v.  Gilroy,  20  Or.  517,  26 
Pac.  851. 

The  assignee  of  a  chose  in  action  in  a 
court  of  law  must  bring  the  action  in  the 
name  of  the  assignor;  and  everything  which 
might  have  been  shown  in  defence  against 
the  assignor  may  be  used  against  the  as^ 
signee ;  18  Eng.  L.  &  Eq.  82 ;  Pollard  v.  Ins: 
Co.,  42  Me.  221;  Guerry  v.  Perryman,  6  Ga. 
119 ;  Commercial  Bank  of  Rochester  v.  Colt, 
15  Barb.  (N.  Y.)  506 ;   Sanborn  y.  Little,  3  N. 


ASSIGNMENT 


265 


ASSIGNMENT 


H.  539 ;  Norton  v.  Rose,  2  Wash.  (Va.)  233 ; 
Pitts  v.  Holmes,  10  Cush.  (Mass.)  92 ;  McJil- 
ton  v.  Love,  13  111.  486,  54  Am.  Dec.  449; 
Lyon  v.  Summers,  7  Conn.  399;  Welch  v. 
Mandeville,  1  Wheat  (U.  S.)  236,  4  L.  Ed. 
79;  In  re  Browns  Estate,  2  Pa,  463;  Ham- 
ilton v.  Greenwood,  1  Bay  (S.  C.)  173,  1  Am. 
Dec.  607;  Matheson  v.  Crain,  1  McCord  (S: 
C.)  219;  U.  S.  v.  Sturges,  1  Paine,  525,  Fed. 
Cas.  No.  1(5,414 ;  Patterson  v.  Atherton,  3 
McLean,  147,  Fed.  Cas.  No.  10,821';  Robin- 
son  v.  Marshall,  11  Md.  251;  1  Risph.  Bq. 
226;  but  in  many  states  the  assignee  of  a 
chose  in  action  may  sue  in  his  own  name; 
Smith  v.  Ry.  Co.,  23  Wis.  267;  Hooker  v. 
Bank,  30  N.  T.  83,  86  Am.  Dec.  351;  Long 
v.  Heinrich,  46  Mo.  603 ;  it  is  no  objection  to 
suit  by  an  assignee  of  an  account  in  his 
name  that  no  consideration  for  the  assign- 
ment is  shown;  Youug  v.  Hudson,  99  Mo.  102, 
12  S.  W.  632 ;  and  where  a  party  assigns  her 
interest  in  a  suit  for  negligence  to  her  at- 
torneys by  way  of  security,  there  is  no  rea- 
son why  suit  should  be  carried  on  in  her 
name;  Rajnowski  v.  R.  Co.,  78  Mich.  681,  44 
N.  W.  335.  In  equity  the  assignee  may  sue 
in  his  own  name,  but  he  can  only  go  into 
equity  when  his  remedy  at  law  fails;  1  Yo. 
&  C.  481 ;  Bigelow  v.  Willson,  1  Pick.  (Mass.) 
485;  Moseley  v.  Boush,  4  Rand.  (Va.)  392; 
Haskell  v.  Hilton,  30  Me.  419;  Murray  v. 
Lylburn,  2  Johns.  Ch.  (N.  Y.)  441 ;  Spring  v. 
Ins.  Co.,  8  Wheat.  (U.  S.)  268,  5  L.  Ed.  614. 
Such  an  assignment  is  considered  as  a  dec- 
laration of  trust;  Morrison  v.  Deaderick,  10 
Humphr.  (Tenn.)  342;  3  P.  Will.  199;  Welch 
v.  Mandeville,  1  Wheat.  (U.  S.)  235,  4  L.  Ed. 
79;  but  all  the  equitable  defences  exist; 
Rousset  v.  Ins.  Co.,  1  Binn.  (Pa.)  429;  Spring 
v.  Ins.  Co.,  8  Wheat.  (U.  S.)  268,  5  L.  Ed.  614. 
It  has  been  held  that  the  assignee  of  a  chose 
in  action  does  not  take  it  subject  to  equities 
of  third  persons  of  which  he  had  no  notice; 
Himrod  v.  Bolton,  44  111.  App.  516. 

A  valid  assignment  of  a  policy  of  insur- 
ance in  the  broadest  legal  sense,  by  consent 
of  the  underwriters,  by  statute,  or  other- 
wise, vests  in  the  assignee  all  the  rights  of 
the  assignor,  legal  and  equitable,  including 
that  of  action ;  but  the  instrument,  not  be- 
ing negotiable  in  its  character,  is  assignable 
only  in  equity,  and  not  even  so,  if  it  has,  as 
it  sometimes  has,  a  condition  to  the  con- 
trary; Field  v.  Ins.  Co.,  3  Md.  244;  New 
York  Life  Ins.  Co.  v.  Flack,  3  Md.  341,  50 
Am.  Dec.  742;  Kingsley  v.  Ins.  Co.,  8  Cush. 
(Mass.)  393;  Grosvenor  v.  Ins.  Co.,  17  N.  Y. 
391;  Simonton  v.  McLane's  Adm'r,  25  Ala. 
353;  Folsom  v.  Ins.  Co.,  30  N.  H.  231;  Rison 
y.  Wilkerson,  3  Sneed  (Tenn.)  565;  Pollard 
v.  Ins.  Co.,  42  Me.  221 ;  Birdsey  v.  Ins.  Co., 
26  Conn.  165;  State  Mut.  Fire  Ins.  Co.  v. 
Roberts,  31  Pa.  438 ;  18  Eng.  L.  &  Eq.  427 ; 
Hall  v.  Ins.  Co.,  93  Mich.  1S4,  53  N.  W.  727, 
18  L.  R.  A.  135,  32  Am.  St.  Rep.  497.  Where 
the  policy  does  not  provide  that  an  assign- 


ment   without   the   consent  of   the  coi* 
renders  it  void,  a  parol  a  it  is  valid; 

O'Brien   v.   Ins.  Co.,   57   Hun   589,   11   N.    V. 
Snpp.  125.    Upon  transfer  of  a  poli     . 
of  Loss,  the  assignee  may  in 
in  bis  own  name;    Southern  Fertilizer  Co.  v. 
Reams,  105  N.  C.  283,  11  S.  I  it  this 

is  usually  when  there  is  a  statutory  | 
sion;  and  if  there  be  none,  suit  must 
the  name  of  the  assignor  ;  3  Kent  261 ;  Rous- 
set v.  Ins.  Co.,  1  Binn,  (Pa.)  429.  In  marine 
policies,  custom  seems  to  have  estabbshed  a 
rule  different  from  that  of  the  common  law, 
and  to  have  made  policies  transferable  with 
the  subject  matter  of  insurance;  Mav,  Ins. 
S  377. 

Assignments  are  peculiarly  the  objects  of 
equity  jurisdiction;    9    B.    &   C.   300;     Mar 
bury  v.  Brooks,  7  Wheat  (U.  S.)  556,  5  I ..  I    I 
522;    Nicoll  v.  Mumford,  4  Johns.  Ch.  (N.  Y.) 
529;    Phillips  v.  Prevost,  id.  205;    Unwell  v. 
Baker,  id.  119;    Hays  v.  Ward,  id.  12!).  8  Am. 
Dec.  554;   and  bona  fide  assignments  will  in 
most  cases  be  upheld  in  equity  courts;    Dav- 
enport v.    Woodbridge,   8   Greenl.    (.Me.)    17; 
Corser  v.  Craig,  1  Wash.  C.  C.  424,  Fed.  Cas. 
No.  3,255;    Kellogg  v.  Krauser,  14  S.  &  i: 
(Pa.)  137,  16  Am.  Dec.  480:   Sheftall's  Adm'rs 
v.  Clay's  Adm'rs,  T.  U.  P.  Cbarlt.  (Ga.)  230; 
Anderson  v.  Van  Alen,  12  Johns.  (N.  Y.i  343; 
but  champerty  and  maintenance,  and  the  pur- 
chase of  lawsuits,  are  inquired  into  and  re- 
strained in  equity  as  in  law,  and  fraud  will 
defeat  an  assignment     By  some  of  the 
statutes  regulating  assignments,  the  as 
may  bring  an  action  in  his  own  name  In  a 
court  of  law,  but  the  equities  in  defence  are 
not  excluded.     See  Johns  v.   Johns,  6  Ohio 
271;     Sirlott   v.   Tandy,   3   Dana    (Ky.)    142: 
Harper  v.  Butler,  2  Pet.  (U.  S.)  239,  7  L  Ed. 
410;   Defrance  v.   Davis,   Walk.    (Miss.)   69. 

All  assignments  and  transfers  of  any  claim 
upon  the  United  States,  or  of  any  part  or 
share  thereof,  or  interests  therein,  whatever 
may  be  the  consideration  therefor,  are  null 
and  void,  unless  made  after  the  allowance  of 
such  claim,  the  ascertainment  of  the  amount 
due,  and  the  issuance  of  a  warrant  for  the 
payment  thereof;  §  3477  R.  S.  See  24  Am. 
L.  Rev.  442.  But  this  does  not  apply  to  the 
passing  of  such  claims  to  heirs,  devisi 
assignees  in  bankruptcy;  Erwin  v.  D.  S.,  97 
U.  S.  392,  24  L.  Ed.  1065. 

Notice  is  not  necessary  as  against  the  cred- 
itor or  his  assignee  in  bankruptcy,  but  the 
claims  of  competing  assignees  or  encum- 
brancers rank  as  between  themselves  ac- 
cording to  the  dates  at  which  they  have  re- 
spectively given  notice  to  the  debtor;  Pol- 
lock, Contr.  232,  citing  3  CI.  &  F.  456.  This 
applies  to  rights  created  by  trust;  id.  233. 

In  this  country  it  has  also  been  held  that 
notice  of  the  assignment  of  a  chose  in  ac- 
tion is  effective  without  notice  or  acceptance 
by  the  debtor;  Quigley  v.  Welter,  95  Minn. 
3S3,  104  N.   W.   236;    Kingman  v.   Perkins, 


ASSIGNMENT 


2G6 


ASSIGNMENT  OF  DOWER 


105  Mass.  Ill ;  Columbia  Finance  &  Trust 
Co.  v.  Bank,  116  Ky.  364,  76  S.  W.  156;  Young 
v.  Upson,  115  Fed.  192;  Tingle  v.  Fisher,  20 
W.  Va.  497. 

The  only  purpose  or  necessity  of  notice  is 
for  the  protection  of  the  assignee  against  sub- 
sequent assignees  or  creditors  or  payments 
made  by  the  debtor  in  ignorance  of  the  as- 
signment; Succession  of  Patrick,  Mann.  Un- 
rep.  Cas.  (La.)  72 ;  Chemical  Co.  v.  McNair, 
139  N.  C.  320,  51  S.  E.  949. 

A  party  to  an  executory  contract  cannot 
assign  it  to  a  third  party ;  but  it  is  held  in 
Taylor  v.  Palmer,  31  Cal.  240,  that  a  public 
building  contract  is  distinguished  from  a  pri- 
vate building  contract  on  the  theory  that  the 
public  generally  were  invited  to  bid  for  and 
take  public  contracts  regardless  of  the  pro- 
fessions, trades,  or  occupations ;  and  that, 
aside  from  the  discretion  vested  in  the  board 
of  supervisors  to  reject  all  bids  when  they 
deemed  it  for  the  public  good,  or  the  bid  of 
any  party  who  had  proved  delinquent  in  a 
previous  contract,  there  was  no  restriction 
upon  the  capacity  of  the  contractor.  Ernst 
v.  Kunkle,  5  Ohio  St.  520 ;  City  of  St.  Louis 
v.  Clemens,  42  Mo.  69 ;  Anderson  v.  De  Uri- 
oste,  96  Cal.  404,  31  Pac.  266.  But  in  the 
construction  of  a  complex  plant,  owners  hav- 
ing no  knowledge  themselves  as  to  how  such 
a  plant  should  be  constructed,  have  a  right 
to  select  the  party  with  whom  they  would 
deal,  and  when  the  selection  is  made  and  the 
contract  executed,  there  could  be  no  substi- 
tution of  contractors  without  the  assent  of 
the  owners ;  and  such  a  contract  is  not  as- 
signable by  the  contractor;  Arkansas  Valley 
Smelting  Co.  v.  Min.  Co.,  127  U.  S.  379,  8  Sup. 
Ct.  1308,  32  L.  Ed.  246 ;  Putnam  v.  Ins.  Co., 
123  Mass.  328,  25  Am.  Rep.  93;  Swarts  v. 
Lighting  Co.,  26  R.  I.  388,  59  Atl.  77;  Camp- 
bell v.  County  Com'rs,  64  Kan.  376,  67  Pac. 
866;  Edison  v.  Babka,  111  Mich.  235,  69  N. 
W.  499;  Winchester  v.  Pyrites  Co.,  67  Fed. 
45,  14  C.  C.  A.  300;  Worden  v.  R.  Co.,  82 
la.  735,  48  N.  W.  71 ;  Johnson  v.  Vickers,  139 
Wis.  145,  120  N.  W.  837,  131  Am.  St.  Rep. 
1046. 

See  Future  Acquired  Property;  Insol- 
vency; Equitable  Assignment;  Chose  in 
Action. 

ASSIGNMENT    OF    DOWER.     The  act  by 

which  the  share  of  a  widow  in  her  deceased 
husband's  real  estate  is  ascertained  and  set 
apart  to  her. 

The  assignment  may  be  made  in  pais  by 
the  heir  or  his  guardian,  or  the  devisee  or 
other  persons  seized  of  the  lands  subject  to 
dower ;  Pierce  v.  Williams,  3  N.  J.  Law,  709 ; 
Meserve  v.  Meserve,  19  N.  H.  240;  Blood  v. 
Blood,  23  Pick.  (Mass.)  80;  Shattuck  v. 
Gragg,  id.  S8 ;  McRae  v.  Pegues,  4  Ala.  160 ; 
Baker  v.  Baker,  4  Greenl.  (Me.)  67;  Boyers 
v.  Newbanks,  2  Ind.  3SS;  Tudor,  Lead.  Cas. 
51 ;  or  it  may  be  made  after  a  course  of  ju- 
dicial  proceedings,    where    a    voluntary    as- 


signment is  refused.  In  this  case  the  as- 
signment will  be  made  by  the  sheriff,  who 
will  set  off  her  share  by  metes  and 
bounds;  2  Bla.  Com.  136;  1  Washb.  R.  P. 
229.  The  assignment  should  be  made  within 
forty  days  after  the  death  of  the  husband, 
during  which  time  the  widow  may  remain 
in  the  mansion-house.  See  Pharis  v.  Leach- 
man,  20  Ala.  662  ;  Chaplin  v.  Simmons'  Heirs, 
7  T.  B.  Monr.  (Ky.)  337;  Stedman  v.  For- 
tune, 5  Conn.  462;  1  Washb.  R.  P.  222,  n. 
227 ;  Quarantine.  The  share  of  the  widow 
is  usually  one-third  of  all  the  real  estate  of 
which  the  husband  has  been  seized  during 
coverture ;  and  no  writing  or  livery  is  nec- 
essary in  a  valid  assignment,  the  dowress 
being  in,  according  to  the  view  of  the  law, 
of  the  seisin  of  her  husband. 

The  assignment  of  dower  in  a  house  may 
be  of  so  many  rooms,  instead  of  a  third  part 
of  the  house;  Parrish  v.  Parrish,  88  Va. 
529,  14  S.  E.  325.  The  remedy  of  the  widow, 
when  the  heir  refuses  to  assign  dower,  is  by 
a  writ  of  dower  unde  nihil  habet;  4  Kent  63. 
A  conveyance  by  a  widow  of  her  right  of 
dower  before  it  has  been  allotted  does  not 
vest  the  legal  title  in  the  grantee,  and  she  is 
a  necessary  party  to  enforce  the  allotment; 
Parton  v.  Allison,  111  N.  C.  429,  16  S.  E.  416; 
see  id.,  109  N.  C.  674,  14  S.  E.  107.  If  the 
guardian  of  a  minor  heir  assign  more  than 
he  ought,  the  heir  on  coming  of  age  may  have 
the  writ  of  admeasurement  of  dower ;  Mc- 
Cormick  v.  Taylor,  2  Ind.  336 ;  Jones  v. 
Brewer,  1  Pick.  (Mass.)  314 ;  Co.  Litt.  34,  35 ; 
Fitzh.  Nat.  Br.  148 ;  Stat.  Westm.  2  (13  Edw. 
I.)  c.  7 ;    1  Washb.  R.  P.  222 ;    1  Kent  63,  69. 

ASSIGNMENT  OF  ERRORS.  The  state- 
ment of  the  case  of  the  plaintiff  in  error,  on 
a  writ  of  error,  setting  forth  the  errors  com- 
plained of. 

It  corresponds  with  the  declaration  in  an 
ordinary  action;  2  Tidd,  Pr.  1168;  3  Steph. 
Com.  (11th  ed.)  623.  All  the  errors  of  which 
the  plaintiff  complains  should  be  set  forth 
and  assigned  in  distinct  terms,  so  that  the 
defendant  may  plead  to  them ;  Newnan  v. 
Pryor,  18  Ala.  186;  Reynolds  v.  Reynolds, 
15  Conn.  83;  Adams  v.  Munson,  3  How. 
(Miss.)  77. 

It  is  an  essential  part  of  the  pleadings  and 
as  such  should  be  so  complete  in  itself  as  to 
show  the  basis  of  the  judgment  or  decree  of 
the  appellate  court,  since  after  the  cause  is 
disposed  of  and  the  record  remitted  to  the 
court  below,  the  precipe,  assignment  of  er- 
rors and  pleas  thereto  are  all  that  usually 
remain  of  record ;  In  re  Cessna's  Estate, 
192  Pa.  14,  43  Atl.  376. 

The  ruling  of  a  trial  court  must  be  speci- 
fied in  the  assignment,  in  order  to  question 
it  on  appeal ;  Line  v.  State,  131  Ind.  468,  30 
N.  E.  703 ;  as  where  no  errors  are  assigned 
in  the  record,  no  question  is  presented  for 
the  appellate  court  for  review ;  Wilcox  v. 
Moore,  44  111.  App.  293;    Fullerton's  Estate, 


ASSIGNMENT  OF  ERRORS 


2G7 


>ORS 


146  Pa.  61,  23  Atl.  321;  Patrick  Red  Sand- 
stone Co.  v.  Skoman,  1  Colo.  App.  323,  29 
Pac.  21;  Hawkins  v.  McDougal,  126  Ind.  544, 
25  N.  E.  70S.  Errors  not  assigned  will  not 
usually  be  considered  by  an  appellate  court. 
But  the  United  States  circuit  Court  of  Ap- 
peals will  notice  plain  error  though  not  as- 
signed;  City  of  Memphis  v.  It.  Co.,  183  Fed; 
529,  106  C.  C.  A.  75.  Alleged  errors  of  law 
will  not  be  considered  unless  contained  In 
the  assignment  of  errors,  where  on  the  whole 
the  facts  justify  the  judgment;  Behn,  M.  & 
Co.  v.  Campbell,  205  U.  S.  403,  27  Sup.  Ct. 
502,  51  L.  Ed.  857. 

The  term  is  commonly  used  in  connection 
with  appeals  in  cases  in  equity.  Under  the 
federal  appellate  practice,  it  is  necessary  to 
file  an  assignment  of  error  with  the  petition 
for  an  appeal. 

ASSIGNOR.  One  who  makes  an  assign- 
ment; one  who  transfers  property  to  anoth- 
er.    See  Assignment. 

ASSIGNS.  Assignees;  those  to  whom 
property  shall  have  been  transferred.  Now 
seldom  used  except  in  the  phrase,  in  deeds, 
"heirs,  administrators  and  assigns."  Grant 
v.  Carpenter,  8  R.  I.  30. 

ASSISA  (Lat.  assidcre).  Originally  an 
assembly  or  court;  then  the  enactments  of 
such  a  court.     1  Iloldsw.  H.  E.  L.  116. 

A  kind  of  jury  or  inquest.  For  the  differ- 
ence between  assisa  and  jura  to,  see  Jurata. 

A  writ;  as,  an  assize  of  novel  disseisin, 
assize  of  common  pasture. 

An  ordinance;  as,  assisa  pants.  Littleton 
§  234;  3  Sharsw.  Bla.  Com.  402. 

A  fixed  specific  time,  sum,  or  quantity.  A 
tribute;  tax  fixed  by  law;  a  fine.  Spelman, 
Gloss. 

Assisa  armorum.  A  statute  defining  the 
arms  which  all  freemen  must  carry. 

Assisa  caderc.  To  be  nonsuited.  Cowell ; 
3  Bla.  Com.  402. 

Assisa  continuanda.  A  writ  for  the  con- 
tinuation of  the  assize  to  allow  the  produc- 
tion of  papers.    Reg.  Orig.  217. 

Assisa  do  forcsta.     Assize  of  the  forest. 

Assisa  mortis  d'ancestoris.  Assize  of  nwrt 
d'aiitrstre. 

Assisa  panis  ct  cerevislm.  Assize  of  bread 
and  ale;  a  statute  (1266)  regulating  the 
weight  and  measure  of  these  articles.  Abol- 
ished in  London  in  1S15  and  in  the  rest  of 
England  in  1836. 

Assisa  proroganda.  A  writ  to  stay  pro- 
ceedings where  one  of  the  parlies  is  engaged 
In  a  suit  of  the  king.    Reg.  Orig.  208. 

Assisa  ultima-  prwscntationis.  Assize  of 
darrein   presentment,   which  see. 

Assisa  venaUum.  Statutes  regulating  the 
sale  of  certain  articles.     Spelman,  Gloss. 

Assisa  cadit  (or  vertitur)  in  juratam. 
Where  a  matter  is  so  doubtful  that  it  must 
necessarily  be  tried  before  a  jury.  Jacob 
L.  Diet 


ASSIS0RS.     In   Scotch   Law.     Jul 

ASSISTANCE,     WRIT     OF.     See    W 

A ssi. si  a:. 

ASSITHMENT.     A    wergild    or 
tion  by  a   pecuniary  mulct     Blount 

ASSIZE,   ASSIZA    (Lat  it  by 

or   near,   througb   the  Fr.   us. 
A  writ  directed  to  the  sheriff  for  the  recov- 
ery of  Immovable  l  real  or  in- 
corporeal.    Littleton  §  -•''  l. 

The  action   or  proceedings   in   court 
upon  such  a  writ.     Magna  Carta  c.  12;   Stat. 
13  Edw.  I.    (Wes  i in.  -i    c.  25;   3   Bla.   Com. 
•"7,  252;   Sellon,  Pract  Introd.  xii. 

Such  actions  were  to  be  tried  by  special  courts,  of 
which  the  Judicial  officers  were  justices  of  i 
See  Courts  of  Assize  and  Nisi  Purs.  This  form 
of  remedy  Is  said  to  have  been  introduced  by  the 
parliament  of  Northampton  (or  Nottingham)  a.  D. 
1176,  for  the  purpose  of  trying  titles  to  land  in  a 
more  certain  and  expeditious  manner  before  com- 
ners  appointed  by  the  crown  than  before  the 
suitors  in  the  county  court  of  the  king's  Justiciars 
in  the  Aula  Regis.  The  action  Is  properly  a  mixed 
action,  whereby  the  plaintiff  recovers  his  land  and 
damages  for  the  injury  sustained  by  the  disseisin. 
The  value  of  the  action  as  a  means  for  the  recovery 
of  land  led  to  its  general  adoption  for  that  purpose, 
those  who  had  suffered  injury  not  really  amounting 
to  a  disseisin  alleging  a  disseisin  to  entitle  them- 
selves to  the  remedy.  The  scope  of  the  remedy 
was  also  extended  so  as  to  allow  the  recovery  of  in- 
corporeal hereditaments,  as  franchises,  estovers, 
etc.  It  gave  place  to  the  action  of  ejectment,  and 
is  now  abolished,  having  been  previously  almost.  If 
not  quite,  entirely  disused.  Stat.  3  &  4  Will.  IV.  c. 
27,   §   36.     Stearns,   Real   Act.   1S7. 

A  jury  summoned  by  virtue  of  a  writ  of 
assize. 

Such  juries  were  said  to  be  either  magna  (grand), 
consisting  of  sixteen  members  and  serving  to  deter- 
mine the  right  of  property,  or  parva  (petit),  con- 
isting  of  twelve  and  serving  to  determine  the  right 
to  possession.     Mirror  of  Just.  lib.  2. 

This  sense  is  said  by  Littleton  and  Blackstone  to 
be  the  original  meaning  of  the  word ;  Littleton 
§  234  ;  3  Bla.  Com.  1S3.  Coke  explains  it  as  denot- 
ing originally  a  session  of  justices;  and  this  expla- 
nation is  sanctioned  by  the  etymology  of  the  word. 
Co.  Lltt.  153  b.  It  seems,  however,  to  have  been 
early  used  in  all  the  senses  here  given.  The  recog- 
nitors of  assize  (the  jurors)  had  the  power  of  de- 
ciding, upon  their  own  knowledge,  without  the  ex- 
amination of  witnesses,  where  the  issue  was  joined 
on  the  very  point  of  the  assize  ;  but  collateral  mat- 
ters were  tried  either  by  a  jury  or  by  the  recogni- 
tors acting  as  a  jury,  in  which  latter  case  it  was 
said  to  be  turned  into  a  jury  (assisa  vertitur  in 
juratam).  Booth,  Real  Act.  213;  Stearns,  Real 
Act.  187;  3  Bla.  Com.  402.  The  term  Is  no  longer 
used  in  England  to  denote  a  jury. 

The  assizes  are:  The  Grand  Assi/e  which 
provides  a  machinery  for  trying  disputed 
claims  to  property;  and  possessory  as 
for  trying  disputed  claims  t . >  seisin  or  pos- 
session, l  Boldsw.  Hist  E.  L.  149.  See 
Grand  Assizk. 

The  verdict  or   judgment  of  the  jurors  or 
liters  of  assize;  3  Bla.  Com.  ."iT.  59. 

A  court  composed  of  an  assembly  of 
knights  and  other  substantia]  men.  with  the 
baron  or  justice,  in  a  certain  place,  at  an 
appointed  time.  Grand  Coutuin,  c  24.  See 
Court  of  Assize. 


ASSIZE,  ASSIZA 


268 


ASSIZE  OF  NOVEL  DISSEISIN 


An  ordinance  or  statute.  Littleton  §  234; 
Reg.  Orig.  239.  Anything  reduced  to  a  cer- 
tainty in  respect  to  number,  quantity,  quali- 
ty, weight,  measure,  etc.  2  Bla.  Com.  42; 
Cowell;  Spelman,  Gloss.  Assisa. 

As  to  this  use  of  the  term,  see  Provisions. 

See  the  title  immediately  following. 

In  Scotch  Law.  The  jury,  consisting  of 
fifteen  men,  in  criminal  cases  tried  in  the 
court  of  justiciary.     Paterson,  Comp. 

ASSIZE  OF  CLARENDON.  A  set  of  in- 
structions (116G)  "to  the  itinerant  justices 
and  sheriffs  with  reference  to  their  duties 
and  jurisdiction.     1  Holdsw.  Hist.  E.  L.  21. 

ASSIZE  OF  DARREIN  PRESENTMENT. 
A  writ  of  assize  which  formerly  lay  when 
a  man  or  his  ancestors  under  whom  he 
claimed  presented  a  clerk  to  a  benefice,  who 
was  instituted,  and  afterwards  upon  the  next 
avoidance,  a  stranger  presented  a  clerk  and 
thereby  disturbed  the  real  patron.  3  Sharsw. 
Bla.  Com.  245;  Stat  13  Edw.  I.  (Westm.  2) 
c.  5.  It  has  given  way  to  the  remedy  by 
quare  impedit. 

ASSIZE  OF  FRESH  FORCE.  A  writ  of 
assize  which  lay  where  the  disseisin  had 
been  committed  within  forty  days.  Fitzh. 
N.  B.  7. 

W.  C.  Bolland  In  Tear  Books  of  Edward 
II,  Vol.  VII,  p.  xxxvi  (Selden  Society),  after 
referring  to  "a  cryptic  remark  of  Glanvill," 
and  saying  that  "the  history  of  this  writ 
cannot  be  written  yet,"  concludes  that  where 
the  inhabitant  of  a  town  that  has  the  fran- 
chise of  having  actions  touching  its  own  citi- 
zens heard  and  determined  within  the  town 
is  disseised  of  a  tenement,  then  if  he  take  ac- 
tion to  recover  it  within  a  certain  time  of 
such  disseisin  (variously  stated  to  be  forty 
days  or  forty  weeks)  he  must  take  that  ac- 
tion by  means  of  an  assize  of  fresh  force, 
otherwise  he  can  avail  himself  only  of  a 
writ  of  right. 

ASSIZE,    GRAND.     See  Grand  Assize. 

ASSIZE  OF  MORTDANCESTOR.  A  writ 
of  assize  which  lay  to  recover  possession  of 
lands  against  an  abator  or  his  alienee.  It 
lay  where  the  ancestor  from  whom  the 
claimant  derived  title  died  seised.  Cowell; 
3  Bla.  Com.  185. 

ASSIZE  OF  NORTHHAMPTON.  A  re-en- 
actment and  enlargement  (1176)  of  the  As- 
size of  Clarendon.     1  Holdsw.  Hist.  E.  L.  21. 


ASSIZE  OF  NOVEL  DISSEISIN.  A  writ 
of  assize  which  lay  where  the  claimant  had 
been  lately  disseised.  The  action  must  have 
been  brought  subsequently  to  the  next  pre- 
ceding session  of  the  eyre  or  circuit  of  jus- 
tices, which  took  place  once  in  seven  years ; 
Co.  Litt.  153. 

The  assizes  of  darrein  presentment,  mort 
d'ancestre,  novel  disseisin,  and  utrum  were 
possessory.    They  were  tried  before  a  jury. 


Abolished  in  1834.    1  Holdsw.  Hist  E.  L.  151. 
The  forms  are  given  in  id.  423. 

ASSIZE  OF  NUISANCE.  A  writ  of  as- 
size which  lay  where  a  nuisance  had  been 
committed  to   the   complainant's    freehold. 

The  complainant  alleged  some  particular 
fact  done  which  worked  an  injury  to  his 
freehold  (ad  nocwnentum  lioeri  tenementi 
sui),  and,  if  successful,  recovered  judgment 
for  the  abatement  of  the  nuisance  and  also 
for  damages ;  Fitzh.  N.  B.  183 ;  3  Bla.  Com. 
221;  9  Co.  55;  Tr.  &  Ha.  Pr.  1776. 

ASSIZE  OF  UTRUM.  A  writ  of  assize 
which  lay  for  a  parson  to  recover  lands 
which  his  predecessor  had  improperly  allow- 
ed the  church  to  be  deprived  of.  3  Bla. 
Com.  257. 

An  assize  for  the  trial  of  the  question  of 
whether  land  is  a  lay  fee,  or  held  in  frank- 
almoigne.    1  Holdsw.  Hist.  E.  L.  21. 

ASSIZES.  Sessions  of  the  justices  or  com- 
missioners of  assize. 

These  assizes  are  held  twice  in  each  year 
in  each  of  the  various  shires  of  England, 
with  some  exceptions,  by  virtue  of  several 
commissions,  for  the  trial  of  matters  of  fact 
in  issue  in  both  civil  and  criminal  cases. 
They  still  retain  the  ancient  name  in  popu- 
lar language,  though  the  commission  of  as- 
size is  no  longer  issued.  3  Steph.  Com.  ( 11th 
ed.)  373.  See  Assize;  Nisi  Prius;  Commis- 
sion of  Assize;  Courts  of  Assize  and  Nisi 
Prius. 

ASSIZES  DE  JERUSALEM.  A  code  of 
feudal  law  prepared  at  a  general  assembly 
of  lords  after  the  conquest  of  Jerusalem,  A. 
D.  1099. 

It  was  compiled  principally  from  the  laws 
and  customs  of  France.  It  was  reduced  to 
form  by  Jean  d'Iblin,  Comte  de  Japhe  et  As- 
ealon,  about  the  year  1290.  1  Fournel,  Hist, 
des  Av.  49;  2  Dupin,  Prof,  dea  Av.  674; 
Steph.  PL  Andr.  ed.  App.  xi. 

ASSOCIATE.     A  partner  in  interest. 

An  oflBcer  in  each  of  the  superior  courts  of 
common  law  in  England  whose  duty  it  was 
to  keep  the  records  of  his  court,  to  attend 
its  nisi  prius  sittings,  and  to  enter  the  ver- 
dict, make  up  the  posted,  and  deliver  the 
record  to  the  party  entitled  thereto.  Abbott, 
Law  Diet. 

A  person  associated  with  the  judges  and 
clerk  of  assize  in  commission  of  general  jail 
delivery.     Mozley  &  W.  Diet. 

The  term  is  frequently  used  of  the  judges 
of  appellate  courts,  other  than  the  presiding 
judge  or  chief  justice. 


ASSOCIATED  PRESS.  An  association  to 
buy,  gather  and  accumulate  information  and 
news ;  to  vend,  supply,  distribute  and  publish 
the  same. 

It  is  an  association  affected  with  a  public 
interest,  and  must  submit  to  control  by  the 
public  for  the  common  good.     It  must  sell 


ASSOCIATED  PRESS 


269 


ASSOCIATION 


its  news  without  discrimination  to  all  news- 
paper publishers  who  desire  to  purchase  the 
same ;  Inter-Ocean  Pub.  Co.  v.  Associated 
Press,  184  111.  438,  56  N.  E.  822,  48  L.  R.  A. 
508,  75  Am.  St.  Rep.  184,  and  a  by-law  for- 
bidding the  furnishing  news  to  or  receiving 
news  from  an  antagonistic  person  or  corpo- 
ration is   void  as  creating  a   monopoly;    id. 

ASSOCIATION.  The  act  of  a  number  of 
persons  in  uniting  together  for  some  purpose. 
The  persons  so  joining. 

An  organized  union  of  persons  for  a  com- 
mon purpose;  a  body  of  persons  acting  to- 
gether for  the  promotion  of  some  object  of 
mutual   interest   or  advantage.     Cent.    Diet 

Any  combination  of  persons  whether  the 
same  be  known  by  a  distinctive  name  or  not. 
Stroud,  Jud.  Diet. 

An  unincorporated  company  is  fundamen- 
tally a  large  partnership,  from  which  it  dif- 
fers mainly  in  the  following  particulars: 
That  it  is  not  bound  by  the  acts  of  the  indi- 
vidual partners,  but  only  by  those  of  its 
managers;  that  shares  in  it  are  transferable; 
and  that  it  is  not  dissolved  by  the  retire- 
ment, death,  bankruptcy,  etc.,  of  its  individ- 
ual members;  Dicey,  Parties  149. 

In  the  United  States  this  term  is  used  to 
signify  a  body  of  persons  united  without  a 
charter  but  upon  the  methods  and  forms  used 
by  incorporated  bodies  for  the  prosecution 
©f  some  enterprise.     Abbott,  L.  Diet. 

Apart  from  a  statute,  no  action  lies  by  or 
against  an  unincorporated  association  as 
such;  Karges  Furniture  Co.  v.  Woodworkers 
Local  Union,  165  Ind.  421,  75  N.  E.  877,  2  L. 
R.  A.  (N.  S.)  788.  6  Ann.  Cas.  829;  Dicey, 
Parties  14S;  especially  when  it  is  not  organ- 
ized to  carry  on  some  business;  St  Paul 
Typothetae  v.  Bookbinders'  Union.  94  Minn. 
351,  102  N.  W.  725,  3  Ann.  Cas.  695;  Cleland 
v.  Anderson.  GO  Neb.  252,  92  N.  W.  30G,  96 
N.  W.  212.  98  N.  W.  1075,  5  L.  R.  A.  (N.  S.) 
136.  Actions  must  be  brought  in  the  names 
of  all  the  members.  The  inconvenience  of 
this  doctrine  has  led  to  much  legislation. 
Some  statutes  provide  for  suits  against  asso- 
ciations (or  partnerships)  in  the  associate 
names,  service  of  process  on  officers  or  other 
associates,  and  judgments  binding  the  asso- 
ciate property,  but  only  those  members  in- 
dividually who  have  been  personally  served ; 
see  20  Harv.  L.  Rev.  58.  Judgments  may 
bind  individually  even  those  members  not 
personally  served;  Patch  Mfg.  Co.  v.  (ape- 
less,  79  Vt.  l,  03  Atl.  938.  Such  association 
may  sue  and  be  sued  by  its  name ;  Whitney 
v.  Backus,  149  Pa.  29,  24  Atl.  51 ;  Davison  v. 
Holden,  55  Conn.  103,  10  Atl.  515,  3  Am.  St 
Rep.  40.  In  New  York  actions  may  be 
brought  against  such  association  of  seven  or 
more  persons  in  the  name  of  the  president 
or  treasurer;  Curran  v.  Galon.  152  N.  Y.  33, 
46  N.  E.  297,  37  L.  R.  A.  802,  57  Am.  St.  Rep. 
496.  One  or  more  members  may  sue  for  the 
benefit  of  all,  where  the  members  are  so  nu- 1 


merous  that  it  is  impracticable  to  brin^- 
all   in;    Liggett   v.   Ladd,   17   Or.   89,   21 
133.     In   England  it  has  been  held  that  an 
lation  of  employes  might  be  sued  in  its 

upon  the  ground  that  such  a- 
tions  are  expressly  recognized  by  i 
ment,  and  such  right  ari  ry  im- 

plication from  the  legislative  recognition, 
and  the  right  to  own  property;  [1901]  a.  <'. 
426.    Si  -  -"  Barv.  i>.  Rev.  58;]  irties. 

I  -mi' ;   Pasties  ;  Jors  i 

CoMrANiirs;  Building  Associations  ;  !;. 
cial   Associations;    Chakitablb    Uses;    Ex- 
I'unsio.v 

In  English  Law.  A  writ  directing  certain 
persons  (usually  the  clerk  and  his  subordi- 
nate officers)  to  associate  t'  with 
the  justices  and  sergeants  for  the  purpose 
of  taking  the  assizes.    3  Bla.  Com.  59. 

ASS0IL  (spelled  also  assoile,  absoile,  as- 
soilyie).  To  set  free;  to  deliver  from  ex- 
communication. Stat.  1  Hen.  IV.  a  7;  Cow- 
ell.       See  Absoil. 

ASSUME.  To  take  to  or  upon  one's  self. 
See  Cincinnati,  S.  &  C.  R.  Co.  v.  Ry.  Co.,  44 
Ohio  St.  314,  7  N.  E.  139. 

ASSUMPSIT  (Lat  assumpsit,  he  has  un- 
dertaken). In  Contracts.  An  undertaking, 
either  express  or  implied,  to  perform  a  parol 
agreement    l  Lilly.  Reg.  132. 

Express  assumpsit  is  an  undertaking  made 
orally,  by  writing  not  under  seal,  or  by  mat- 
ter of  record,  to  perform  an  act  or  to  pay 
a  sum  of  money  to  another. 

Implied  assumpsit  is  an  undertaking  pre- 
sumed in  law  to  have  been  made  by  a  party, 
from  his  conduct,  although  he  has  not  made 
any  express  promise. 

The  law  presumes  such  an  undertake 
have  been  made,  on  the  ground  that  every- 
body  is  supposed  to   have  undertaken   to  do 
what  is,  in  point  of  law.  just  and  right;    2 
Burr.  100S;    8  C.  B.  54o :    Leake,  Contr.  75; 
Huffman  v.  Wyrick,  5  Ind.  App.  IS:;.  "1  X.  IT. 
S23.     Such  an  undertaking  is  never  Implied 
where  the  party  has  made  an  express  p 
ise;     2    Term    100;     Kimball    v.    Tucker.    10 
Mass.  192;   nor  ordinarily  against  the  express 
declaration  of  the  party  to  be  charged,  Jew- 
ett   v.    Inhabitants    of   Somerset,    l    Greenl 
(Me.)   125;    Wheelock  v.  Freeman,   13 
(.Mass.)   165,  23  Am.  Dec.  074;    nor  will  it' be 
implied  unless  there  be  a  request  or  ai 
by  the  defendant  shown;    Webb  v.  <  '• 
N.  H.  490;    though   such  request  or  assent 
may    he    inferred    from    the    nature    of    the 
transaction;    1   DowL   &    I..   884;     Hawley    v. 
Sage,  15  Conn.  52;   Hall  v.  R.  Co..  28  Vt.  401  : 
Treasurer  of  City  of  Camden  v.  Mulfonl.  2d 
N.   J.   Law   49;    or  from    the  silent  acquies- 
cence of  the  defendant  ;    Doty  v.   Wilson,   14 
Johns.   (X.  Y.i  378;    Bradley  v.  Richard 
2  Blatchf.  343,  Fed.  Cas.  Xo.  1,786;    or  even 
contrary  to  fact  on  the  ground  of  legal  obli- 
gation;   1   H.  Bla.  90;    Inhabitants  of  Han- 
over v.  Turner,  14  Mass.  227,  7  Am.  Dec.  203 ; 


ASSUMPSIT 


270 


ASSUMPSIT 


Inhabitants  of  Alna  v.  Plummer,  4  Greenl. 
(My.)  258;  Van  Valkinburgh  v.  Watson,  13 
Johns.  (N.  Y.)  4S0,  7  Am.  Dec  395;  no  prom- 
ise 1 i  pay  is  implied  from  a  mere  use  of  per- 
sonal property  with  the  permission  of  the 
owuev;  Davis  v.  Breon,  1  Ariz.  240,  25  Tac. 
537. 

In  Practice.  A  form  of  action  which  lies 
for  thi  recovery  of  damages  for  the  non-per- 
fonmiL.ee  of  a  parol  or  simple  contract.  7 
Term  351;  Ballard  v.  Walker,  3  Johns.  Cas. 
(N.  Y.)    GO. 

It  diffe.-s  from  debt,  since  the  amount  claimed 
need  not  be  liquidated  (see  Debt),  and  from  cove- 
nant, sinco  it  does  not  require  a  contract  under  seal 
to  support  it.  See  Covenant.  See  4  Coke  91;  4 
Burr.  1008  Carter  v.  Carter,  14  Pick.  (Mass.)  428; 
Newell  v.  rlill,  2  Mete.  (Mass.)  181.  Assumpsit  is 
one  of  the  class  of  .actions  called  actions  upon  the 
case,  and  in  the  older  books  is  called  action  upon 
the  case    upt,n  assumpsit.     Comyns,  Dig. 

It  was  a  new  variety  of  action  on  the  case, 
framed,  as  it  seems,  as  often  on  the  writ  of 
deceit  as  on  tuat  of  trespass.  Failure  to  per- 
form one's  agreements  did  not  create  a  debt, 
but  it  was  foand  to  be  a  wrong  in  the  nature 
of  deceit  for  which  there  must  be  a  remedy 
in  damages.     The  first  recorded  case  was  Y. 

B.  2  Hen.  IV,  3  pi.  9.  It  was  only  in  1596 
(4  Co.  Rep.  91  a)  that  it  was  conclusively  de- 
cided that  assumpsit  was  admissible  at  the 
plaintiff's  choice  where  debt  would  also  lie; 
and  it  was  still  later  before  it  was  admitted 
that  the  substantial  cause  of  action  was  the 
contract;  Poll.  Contr.  148.  See  Prof.  James 
Barr  Ames  in  2  Harv.  L.  Rev.  1,  53  (3  Sel. 
Essays,  Anglo-Amer.  L.  H.  259)  ;  Holmes, 
Com.  L.  284 ;  3  Holdsw.  Hist.  E.  L.  329. 

Special  assumpsit  is  an  action  of  assump- 
sit brought  upon  an  express  contract  or 
promise. 

General  assumpsit  is  an  action  of  assump- 
sit brought  upon  the  promise  or  contract 
implied  by  law  in  certain  cases.  See  2  Sm. 
Lead.  Cas.  14;   Tr.  &  Ha.  Pr.  1490. 

The  action  should  be  brought  by  the  party 
from  whom  the  consideration  moved;  3  B.  & 
P.  149,  n ;  4  B.  &  C.  664 ;  Cabot  v.  Haskins, 
3  Pick.  (Mass.)  S3,  92;  or  by  the  person  for 
whose  benefit  it  was  paid;  Hinkley  v.  Fowler, 
15  Me.  285;  against  the  party  who  made  the 
undertaking.  It  lies  for  a  corporation;  1 
Campb.  466 ;  and  against  it ;  Bank  of  United 
States  v.  Dandridge,  12  Wheat.  (U.  S.)  68, 
6  L.  Ed.  552 ;  City  of  San  Antonio  v.  Lewis, 
9  Tex.  69;  Waring  v.  Catawba  Co.,  2  Bay  (S. 
C.)  109;  Overseers  of  Poor  of  North  White- 
hall Tp.  v.  Overseers  of  Poor  of  South 
Whitehall  Tp.,  3  S.  &  R.  (Pa.)  117;  but  not 
in  England  formerly  (because  a  corporation 
could  not  contract  except  under  its  seal),  un- 
less by  express  authority  of  some  legislative 
act,  or  in  actions  on  negotiable  paper ;  1 
Chit.  PI.  *119;  4  Bingh.  77;  but  now  cor- 
porations are  liable  in  many  cases  on  con- 
tracts not  under  seal,  and  generally  upon 
executed  contracts,  up  to  the  extent  of  the 
benefit  received ;    6  A.  &  E.  846 ;    L.  R.  10 

C.  P.  409;   Brice,  Ultra  Vires  (3d  ed.)  693. 


Assumpsit  will  lie  at  the  suit  of  a  third 
party  on  a  contract  made  in  his  favor ;  Hen- 
drick  v.  Lindsay,  93  U.  S.  143,  23  L.  Ed.  855; 
Kountz  v.  Holthouse,  85  Pa.  235  (but  see 
Ramsdale  v.  Horton,  3  Pa.  330);  Lawrence 
v.  Fox.  20  N.  Y.  268  (but  see  Vrooman  v. 
Turner,  69  N.  Y.  2S0,  25  Am.  Rep.  195) ;  Snell 
v.  Ives,  S5  111.  279;  Bassett  v.  Hughes,  43 
Wis.  319.  Contra,  Warren  v.  Batchelder,  15 
X.  H.  129.  See  discussion  in  15  Am.  L.  Rev. 
231,  and  4  N.  J.  L.  J.  197. 

A  promise  or  undertaking  on  the  part  of 
the  defendant,  either  expressly  made  by  him 
or  implied  by  the  law  from  his  actions,  con- 
stitutes the  gist  of  the  action.  A  sufficient 
consideration  for  the  promise  must  be  aver- 
red and  shown;  21  Am.  Jur.  258,  2S3 ;  though 
it  may  be  implied  by  the  law ;  Jacksou  v. 
Teele,  7  Johns.  (N.  Y.)  29;  Jerome  v.  Whit- 
ney, id.  321;  Parish  v.  Stone,  14  Pick. 
(Mass.)  210,  25  Am.  Dec.  378;  as  in  case  of 
negotiable  promissory  notes  and  bills,  where 
a  consideration  is  presumed  to  exist  till  its 
absence  is  shown  ;  Middlebury  v.  Case,  6  Vt. 
165. 

The  action  lies  for — 

Money  had  and  received  to  the  plaintiff's 
use,  including  all  cases  where  one  has  money, 
or  that  which  the  parties  have  agreed  to 
treat  as  money ;  Willie  v.  Green,  2  N.  H.  333 ; 
Clark  v.  Pinney,  6  Cow.  (N.  Y.)  297;  Mar- 
shall v.  McPherson,  8  Gill  &  J.  (Md.)  333; 
Barfield  v.  McCombs,  89  Ga.  799,  15  S.  E. 
666;  Colt  v.  Clapp,  127  Mass.  476;  Harper 
v.  Claxton,  62  Ala.  46 ;  McFadden  v.  Wilson, 
96  Ind.  253 ;  in  his  hands  which  in  equity 
and  good  conscience  he  is  bound  to  pay 
over,  including  bank-notes;  13  East  20,  130; 
Mason  v.  Waite,  17  Mass.  560 ;  Ainslie  v. 
Wilson,  7  Cow.  (N.  Y.)  662,  17  Am.  Dec.  532; 
Hill's  Adm'r  v.  Kennedy,  32  Ala.  523;  prom- 
issory notes ;  Tebbetts  v.  Haskins,  16  Me. 
2S5;  Tuttle  v.  Mayo,  7  Johns.  (N.  Y.)  132; 
Edgerton  v.  Brackett,  11  N.  H.  218;  Indian- 
apolis Ins.  Co.  v.  Brown,  6  Blackf.  (Ind.) 
378;  notes  payable  in  specific  articles;  Cran- 
dal  v.  Bradley,  7  Wend.  (N.  Y.)  311;  and 
some  kinds  of  evidences  of  debt ;  3  Campb. 
199;  Gilchrist  v.  Cunningham,  8  Wend.  (N. 
Y.)  641;  Mason  v.  Waite,  17  Mass.  560;  but 
not  goods,  except  under  special  agreement; 
Morrison  v.  Berkey,  7  S.  &  R.  (Pa.)  246;  3 
B.  &  P.  559;  1  Y.  &  J.  380;  whether  deliver- 
ed to  the  defendant  for  a  particular  pur- 
pose to  which  he  refuses  to  apply  it ;  3  Price 
68;  Wales  v.  Wetmore,  3  Day  (Conn.)  252; 
McNeilly  v.  Richardson,  4  Cow.  (N.  Y.)  607; 
Eastman  v.  Hodges,  1  D.  Chip.  (Vt.)  101; 
Gutherie  v.  Hyatt,  1  Harr.  (Del.)  446;  see 
2  Bingh.  7;  Hall  v.  Marston,  17  Mass.  575; 
or  obtained  by  him  through  fraud ;  1  Salk. 
28;  Bliss  v.  Thompson,  4  Mass.  488;  Lyon 
v.  Annable,  4  Conn.  350;  Phelps  v.  Conant, 
30  Vt.  277 ;  Reynolds  v.  Rochester,  4  Ind.  43 ; 
or  by  tortious  seizure  and  conversion  of  the 
plaintiff's  property;  Bigelow  v.  Jones,  10 
Pick.    (Mass.)    161;    and  see  Cowp.  414;    1 


ASSUMPSIT 


271 


ASSUMPSIT 


Cainpb.  285;  or  by  duress,  imposition,  or  un- 
due advantage  or  other  involuntary  and 
wrongful  payment;  6  Q.  B.  270 ;  Richardson 
v.  Duncan,  3  N.  II.  508;  Wheaton  v.  mil- 
liard, 20  Johns.  (N.  Y.i  290,  11  Am.  Dec.  28  I: 
Chase  v.  Dwinal,  7  Greenl.  (Me.)  135,  20  Am. 
Dec.  352;  ferry  v.  Inhabitants  of  Dover,  12 
Pick.  (Massj  206;  Central  Bank  v.  Dressing 
Co.,  20  Pari).  (X.  V. »  2::;  Reynolds  v.  Roches- 
ter, 4  Ind.  43;  Sheldon  v.  South  School  i>i>r., 
24  Conn.  88;  Elliott  v.  Swartwout,  10  Pet 
(U.  S.)  137,  9  L.  Ed.  373;  Sartwell  v.  Bor- 
ton,  28  Vt.  370;  or  for  a  security 
turns  out  to  be  a  forgery,  under  Bome  dr- 
•cumstances;  3  P.  &  C.  428;  Terry  v.  B 
26  Conn.  23;  Kick  v.  Kelly.  30  Pa.  527;  Ellis 
v.  Trust  Co.,  4  Ohio  St.  628,  04  Am.  Dec.  610; 
or  paid  under  a  mistake  of  fact ;  9  Bingh. 
047;  Mowatt  v.  Wright,  1  Wend.  (N.  Y.)  355, 
19  Am.  Dec.  508;  Dickens  v.  Jones,  0  Zerg. 
(Tenn.)  4S3,  27  Am.  Dec.  48S ;  Norton  v. 
Marden,  15  Me.  45,  32  Am.  Dec.  132;  Whea- 
don  v.  Olds,  20  Wend.  (N.  Y.  i  174;  Tyler  v. 
Smith,  18  B.  Monr.  (Ky.)  793;  or  upon  a 
consideration  which  has  failed;  3  B.  &  P. 
181;   President,  etc.,  of  Salem  Bank  v.  Bank, 

17  Mass.  1,  9  Am.  Dec.  Ill;  Reynolds  v.  Har- 
ris, 9  Cal.  338;  Keene  v.  Thompson.  4  Gill  & 
J.  (Md.)  403;  Lyon  v.  Anuable,  4  Conn.  350; 
Pennington  v.  Clifton,  10  Ind.  172 ;  Burch  v. 
Smith,  15  Tex.  224,  05  Am.  Dec.  154;  see 
Kitty  v.  Com.,  IS  B.  Monr.  (Ky.)  523;  or 
under  an  agreement  which  has  been  rescind- 
ed without  partial  performance;  2  C.  &  P. 
514;  Holbrook  v.  Holbrook,  30  Vt.  432;  M. 
E.  Church  v.  Wood,  5  Ohio,  286;  Dearhom 
v.  Dearborn,  15  Mass.  319;  Gillet  v.  May- 
nard,  5  Johns.  (N.  Y.)  85,  4  Am.  Dec.  329; 
Dickson  v.  Cunningham,  Mart.  &  Y.  (Tenn.) 
203;  Wharton  v.  O'Hara,  2  N.  &  McC.  (S. 
C.)  65;  Randlet  v.  Herren,  20  N.  H.  102;  or 
on  common  counts  for  breach  of  warranty 
upon  the  ground  that  the  money  was  paid 
without  consideration  ;  Murphy  v.  McGraw, 
74  Mich.  31S,  41  N.  W.  917;  or  the  owner  of 
stolen  money  may  recover  the  amount 
against  one  with  whom  it  was  deposited  by 
the  thief,  who,  after  not  Ice,  pays  it  to  a  third 
person ;    Hindmarch  v.  Hoffman,  127  Pa.  284, 

18  Atl.  14,  4  L.  R.  A.  308,  14  Am.  St.  Rep. 
842;  interest  paid  by  mistake  on  a  judgment 
which  did  not  bear  interest  is  recoverable 
back;  McMurtry  v.  R.  Co.,  84  Ky.  462,  1  S. 
W.  815;  or  where  a  factor  disobeys  instruc- 
tions and  sells  grain,  deposits  made  by  prin- 
cipal may  be  recovered;  Larniinie  v.  Carley, 
114  111.  190,  29  N.  E.  3S2 ;  or  to  recover  pur- 
chase money  under  void  contract  for  sale  of 
lands;  Gwin  v.  Sinur,  49  Mo.  App.  .'Jill :  or  to 
recover  money  advanced  as  prepayment  of 
services  to  be  rendered  under  contract, 
where  contract  is  not  performed;  Trope  v. 
Ass'n,  58  Hun  011.  12  N.  Y.  Supp.  519;  or 
where  one  receives  money  for  a  specific  pur- 
pose, but  to  which  he  .Iocs  not  apply  it.  keep- 
ing it  for  himself;  Barrow  v.  Barrow,  55 
Hun  505,  8  N.  Y.  Supp.  7S3. 


Money  paid  for  the  use  of  another,  includ- 
ing negotiable  securities;   Merchants'  Bi 
Conk,  4  Pick.    (Mass.)   414;    Pearsun  v. 
ker,  3  N.  H.  30U;  Mason  v.  Franklin.  ::  Johns, 
i  X.  Y.i  206;   Craig  v.  Craig,  5  Ra* 
91;    Lapham  v.  Karnes.  2  Vt.  213;    Mel 
v.   Crofton,  0  Greenl.    (Me.)    331;    where   the 
plaintiff  can  show  a  previous  request;    Webb 
v.  Cole,  20  X.  II.  490;   or  subsequent  a 

rd  v.  Lienow,  12  Mass.  11;  Tattle  v. 
Armstead,  53  Conn.  17."..  22  Atl.  077:  Wolff  v. 
Matthews.  \Y.\  Mo.  App.  376;  or  that  he  paid 
it  for  a  reasonable  cause,  and  not  officiously; 
3  M.  &  W.  607;  S!  illin  v.  Merrill.  16  Mass. 
40;  Ebel  v.  Chandler,  93  Cal.  372,  2g 
934;  Kovejoy  v.  Chandler,  93  CaL  37 
Pac.  935;  Graham  v.  Dunlgan,  2  Bosw.  (N. 
Y.i  516;  14  Q.  B.  D.  811;  L.  K.  3  C.  P.  38; 
Keener  Quasi  Cont.  388;  hut  a  mere  volun- 
tary payment  of  another's  debt  will  not  make 
the  person  paying  his  creditor;  Vanderhey- 
den  v.  Mallory,  l  X.  Y.  472;  Turner  v.  Eger- 
ton,  l  Gill  &  J.  (Md.)  4.;:;.  19  Am.  Dec  235; 
Mayor,  etc.,  of  Baltimore  v.  Hughes'  Adm'r,  1 
Gill  &  J.  (Md.)  497,  19  Am.  Dec.  24::;  Rens- 
selaer Glass  Factory  v.  Reid,  5  Cow.  i  X.  Y.) 
603;  Calhoun  v.  Cozens,  3  Ala.  500;  Webb  v. 
•  oh.  20  X.  H.  490. 

Money  lent,  including  negotiable  securities 
of  such  a  character  as  to  be  essentially  mon- 
ey; 11  Jur.  157,  289;  Payson  v.  Whitcomb, 
15  Pick.  (Mass.)  212:  Crandal  v.  Bradley,  7 
Wend.  (N.  Y.)  311;  Penn  v.  Flack,  3  Gill  & 
J.  (Md.)  309;  Edgerton  v.  Brackett,  11  N. 
H.  218;  Fairbanks  v.  Stanley,  18  M 
Peniston  v.  Wall's  Adm'x,  3  J.  J.  Marsh. 
(Ky.)  37;  Hart  v.  Connor,  21  Ga.  384;  ac- 
tually loaned  by  the  plaintiff  to  the  d< 
ant  himself;    1  Dane,  Abr.  196. 

Money  found  to  be  due  upon  an  acrount 
stated,  called  an  insimvl  computassent,  for 
the  balance  so  found  to  he  due.  without  re- 
gard te  the  nature  of  the  evidences  of  the 
original  debt;  3  B.  &  C.  196;  Danforth  v. 
Turnpike  Road.  12  Johns.  (X.  Y.)  227; 
Greenwood  v.  Curtis,  6  Mass.  35S,  4  Am.  1  >ec 
145;  Fitch  v.  Leitch,  11  Leigh  (Va.)  471; 
Burnham  v.  Spooner,  10  X.  II.  532  :  Richey 
v.  Hathaway.  149  Pa.  207,  24  Atl.  191 

Goods  sold  and  delivered  either  in  accord- 
ance with  a  previous  request;  9  Conn.  ::7'.»: 
I.yles  v.  I.yles'  Ex'rs.  6  Harr.  &  J.  (Md.) 
27.'::  Rogers  v.  Verona,  l  Bosw.  (X.  Y.)  417; 
Keyser  v.  Dist  No.  8,  35  X.  H.  tTT :  Abbott 
v.  Colmrn.  28  Vt.  666,  <:7  Am.  Dec.  T  5;  Phil- 
adelphia Co.  v.  Park  Bros.  &  Co.,  138  Pa. 
346,  22  Atl.  80;  or  where  the  defendant  re- 
ceives and  uses  them:  Jenkins  v.  Richardson, 
6  J.  J.  Marsh.  (Ky.)  441,  22  Am.  Dec.  82; 
Kupfer  v.  Inhabitants  of  South  Parish  in 
Augusta,  12  Mass.  is:.;  Emerson  v.  Mc- 
Namara,  41  Me.  565;  although  tortiously; 
Hill  v.  Davis.  :;  x.  ii.  384;  Floyd  v.  Wiley,  1 
Mo.  130;  Floyde  ▼.  Wiley,  id.  643.  See  Jones 
v.  ii  ar,  5  Pick.  (Mass.)  285;  Tboveb. 

Work  performed;  .1:  d  i  -  v.  Blxby,  11  Mass. 
37;   McDaniel  v.  Parka,  19  Ark.  071;  James 


ASSUMPSIT 


272 


ASSUMPSIT 


v.  Buzzard,  1  Hempst.  240,  Fed.  Cas.  No. 
7,206a;  Trammell  v.  Lee  County,  94  Ala.  194, 
10  South.  213;  Blakeslee  v.  Holt,  42  Conn. 
226;  Whelan  v.  Clock  Co.,  97  N.  Y.  293;  and 
materials  furnished;  Hayward  v.  Leonard,  7 
Pick.  (Mass.)  181,  19  Am.  Dec.  268;  with 
the  knowledge  of  the  defendant;  Bartholo- 
mew v.  Jackson,  20  Johns.  (N.  Y.)  28,  11  Am. 
Dec.  237;  Hort  v.  Norton,  1  McCord  (S.  C.) 
22;  McDaniel  v.  Parks,  19  Ark.  671;  so  that 
he  derives  benefit  therefrom;  Lowe  v.  Sink- 
lear,  27  Mo.  308;  Feiton  v.  Simpson,  33  N. 
C.  84;  whether  there  be  an  express  contract 
or  not.  Also,  where  there  is  an  express 
promise  to  pay  for  extra  work,  although  the 
contract  requires  that  the  estimate  should 
be  in  writing ;  Hugbes  v.  Torgerson,  96  Ala. 
348,  11  South.  209,  16  L.  R.  A.  600,  38  Am. 
St.  Rep.  105.  As  to  whether  anything  can  be 
recovered  where  the  contract  is  to  work  a 
specified  time  and  the  labor  is  performed 
during  a  portion  of  that  time  only,  see  Pro- 
vost v.  Harwood,  29  Vt.  219;  Ryan  v.  Day- 
ton, 25  Conn.  188,  65  Am.  Dec.  5G0;  Allen  v. 
Curies,  6  Ohio  St.  505;  Hughes  v.  Cannon, 
1  Sneed  (Tenn.)  622;  Wolfe  v.  Howes,  24 
Barb.  (N.  Y.)  174;  Downey  v.  Burke,  23 
Mo.  228.  Services  performed  by  relatives  for 
one  in  his  lifetime,  but  in  the  absence  of  an 
express  or  implied  contract  for  payment,  can- 
not be  recovered  for  after  his  death ;  Patter- 
son v.  Collar,  31  111.  App.  340.  One  may  re- 
cover for  work  and  material  on  an  implied 
assumpsit  although  the  work  is  destroyed  be- 
fore its  completion;  Butterfield  v.  Byron,  153 
Mass.  517,  27  N.  E.  667,  12  L.  R.  A.  571,  25 
Am.  St.  Rep.  654. 

Use  and  occupation  of  the  plaintiff's  prem- 
ises under  a  parol  contract  express  or  im- 
plied; Logan  v.  Lewis,  7  J.  J.  Marsh.  (Ky.) 
6;  Osgood  v.  Dewey,  13  Johns.  (N.  Y.)  240; 
Eppes'  Ex'rs  v.  Cole,  4  Hen.  &  M.  (Va.)  161, 
4  Am.  Dec.  512;  Brewer  v.  Craig,  18»N.  J.  L. 
214;  Lloyd  v.  Hough,  1  How.  (U.  S.)  153,  11 
L.  Ed.  83;  Phelps  v.  Conant,  30  Vt.  277; 
Crommelin  v.  Thiess,  31  Ala.  412,  70  Am.  Dec. 
499;  Howe  v.  Russell,  41  Me.  446 ;  Sampson 
v.  Shaeffer,  3  Cal.  196 ;  Theological  Institute 
of  Connecticut  v.  Barbour,  4  Gray  (Mass.) 
329 ;  but  not  if  it  be  tortious ;  Ryan  v. 
Marsh's  Adm'r,  2  N.  &  McC.  (S.  C.)  156; 
Henwood  v.  Cheeseman,  3  S.  &  R.  (Pa.)  500; 
De  Young  v.  Buchanan,  10  Gill  &  J.  (Md.) 
149,  32  Am.  Dec.  156 ;  Wiggin  v.  Wiggin,  6 
N.  H.  298;  Strong  v.  Garfield,  10  Vt.  502; 
or  where  defendant  enters  under  a  contract 
for  a  deed;  Smith  v.  Stewart,  6  Johns.  (N. 
Y.)  46,  5  Am.  Dec.  186;  Vandenheuvel  v. 
Storrs,  3  Conn.  203;  Jones  v.  Tipton,  2  Dana 
(Ky.)  295.  The  relation  of  landlord  and 
tenant  must  exist  expressly  or  impliedly ; 
Chambers  v.  Ross,  25  N.  J.  L.  293;  Newby 
v.  Vestal,  6  Ind.  412;  Williams  v.  Hollis,  19 
Ga.  313. 

And  in  many  other  cases,  as  for  a  breach 
of  promise  of  marriage ;  Conn  v.  Wilson,  2 
Overt  (Tenn.)  233,  5  Am.  Dec.  663;    to  re- 


cover the  purchase-money  for  land  sold ;   Vel- 
ie  v.  Myers,  14  Johns.  (N.  Y.)  162 ;   Shephard 
v.  Little,  id.  210;    Wood  v.   Gee,  3  McCord 
(S.  C.)  421;    and,  specially,  upon  wagers;    2 
Chit.   PL    114;    feigned  issues;    2   Chit.   PI. 
116 ;    upon  foreign  judgments  ;    3  Term  493  ; 
Oysted   v.    Shed,    8   Mass.    273;    Hubbell   v. 
Coudrey,  5  Johns.  (N.  Y.)  132;  but  not  on  a 
judgment  obtained  in  a  sister  state;  Garland 
v.   Tucker,   1   Bibb     (Ky.)   361;    Andrews   v. 
Montgomery,  19  Johns.   (N.  Y.)  162,  10  Am. 
Dec.  213;    Boston  India  Rubber  Factory  v. 
Hoit,  14  Vt  92 ;  money  due  under  an  award ; 
Kingsley  v.  Bill,  9  Mass.  198 ;    where  the  de- 
fendant has  obtained  possession  of  the  plain- 
tiff's property  by  a  tort  for  which  trespass 
or  case  would  lie;   Bigelow  v.  Jones,  10  Pick. 
(Mass.)  161 ;    Budd  v.  Hiler,  27  N.  J.  L.  43 ; 
Hutton  v.  Wetherald,  5  Harr.  (Del.)  38 ;  Coop- 
er v.   Berry,  21   Ga.  526,  68  Am.  Dec.  468; 
or,  having  rightful  possession,  has  tortiously 
sold  the  property ;    Foster  v.  Mfg.   Co.,   12 
Pick.    (Mass.)    452;     Gilmore   v.   Wilbur,   12 
Pick.  (Mass.)  120,  22  Am.  Dec.  410 ;  Pritchard 
v.  Ford,  1  J.  J.  Marsh.  (Ky.)  543;  Willet  v. 
Willet,  3  Watts  (Pa.)  277 ;    Sanders  v.  Ham- 
ilton,  3  Dana    (Ky.)    552;  Chauncy   v.  Yea- 
ton,  1  N.  H.  151;    King  v.  McDaniel,  4  Call 
( Va.)  451 ;  Stockett  v.  Watkins'  Adm'rs,  2  Gill 
&  J.  (Md.)  326,  20  Am.  Dec.  438 ;   or  convert- 
ed it  to  his  own  use ;   3  M.  &  S.  191 ;    Miller 
v.  Miller,  7  Pick.  (Mass.)  133,  19  Am.  Dec. 
264;    Pike  v.  Bright,  29  Ala.  332;    Emerson 
v.  McNamara,  41  Me.  565 ;   Janes  v.  Buzzard, 
1   Hempst.   240,   Fed.   Cas.  No.   7,206a;   Als- 
brock    v.   Hathaway,   3    Sneed    (Tenn.)   454; 
Goodenow  v.  Snyder,  3  G.  Greene  (la.)  599 ; 
or,    at    the    suit    of   an    attaching    creditor, 
where  a   sheriff  pays  money   to  subsequent 
lienor  by  order  of  court,  which  order  is  sub- 
sequently reversed ;  Haebler  v.  Myers,  132  N. 
Y.  363,  30  N.  E.  963,  15  L.  R.  A.  588,  28  Am. 
St.  Rep.  589 ;   or  where  one  purchases  a  bond 
relying  on  the  seller's  recommendation  that 
it  is  good,  when  in  fact  it  is  worthless ;  Rip- 
ley v.  Case,  S6  Mich.  261,  49  N.  W.  46. 

The  action  may  be  brought  for  a  sum  speci- 
fied in  the  promise  of  the  defendant,  or  for 
the  definite  amount  of  money  ascertained  by 
computation  to  be  due,  or  for  as  much  as  the 
services,  etc.,  were  worth  (called  a  quantum 
meruit),  or  for  the  value  of  the  goods,  etc. 
(called  a  quantum  valebant).  The  value  of 
services  performed  under  a  contract  void  by 
the  statute  of  frauds  is  recoverable  on  quan- 
tum meruit;  Lapham  v.  Osborne,  20  Nev. 
168,  18  Pac.  881 ;  Wonsettler  v.  Lee,  40  Kan. 
367,  19  Pac.  862;  a  city  is  liable  for  water 
supplied  after  termination  of  the  contract  ; 
Wilson  v.  City  of  Charlotte,  110  N.  C.  449, 
14  S.  E.  961;  one  hired  to  do  work,  but  who 
is  wrongfully  stopped,  may  recover  on  quan- 
tum meruit  what  the  labor  is  worth,  regard- 
less of  its  value  to  the  other  party ;  Mooney 
v.  Iron  Co.,  82  Mich.  263,  46  N.  W.  376. 
The  form  of  the  action,  whether  general 


ASSUMPSIT 


273 


ASSUMPSIT 


or  special,  depends  upon  the  nature  of  the 
undertaking  of  the  parties,  whether  it  be 
express  or  implied,  and  upon  other  circum- 
stances. In  many  '-uses  where  there  has 
been  an  express  agreement  between  the  par- 
ties, the  plaintiff  may  neglect  the  special 
contract  and  .sue  in  general  assumpsit.  He 
may  do  this:  first,  where  the  contract  is  exe- 
cuted ;  5  B.  &  C.  828;  Robertson  v.  Lynch, 
18  Johns.  (N.  V.)  451;  Baker  V.  Corey,  11) 
Pick.  (Mass.)  l!)(i;    Perkins  v.  Hart,  11  Wheat 

(U.  s.)  2:57,  G  L.  Ed.  i»;:;;  Cochran  v.  Tatum, 
3  T.  B.  Monr.  (Ky.)  405 ;  Cou'rsey  v.  Coving- 
ton, 5  Harr.  &  J.  (Md.)  45 ;  Wood  v.  Gde,  3 
McCord  (S.  C.)  421 ;  Hancock  v.  Ross,  18  Ga. 
364 ;  and  is  for  the  payment  of  money; 
Brooks  v.  Scott's  Ex'r,  2  Munf.  (Va.)  ::il; 
Cochran  v.  Tatum,  1  J.  J.  Marsh.  (Ky.)  394 ; 
Cochran  v.  Tatum,  3  T.  B.  Monr.  (Ky.)  405  ; 
Morse  v.  Potter,  4  Gray  (Mass.)  292;  though 
if  a  time  be  fixed  for  its  payment,  not  until 
the  expiration  of  that  time;  1  Stark.  22'.); 
second,  where  the  contract,  though  only  par- 
tially executed,  has  been  abandoned  by  mu- 
tual consent ;  7  Term  1S1 ;  Mead  v.  Degloy- 
er,  1G  Wend.  (N.  Y.)  632;  Tebbetts  v.  lias- 
kins,  16  Me.  283;  Adams  v.  Pugh,  7  Cal. 
150;  or  extinguished  and  rescinded  by  some 
act  of  the  defendant;  Hoagland  v.  Moore,  2 
Blackf.  (Ind.)  167;  Jenkins  v.  Thompson,  20 
N.  H.  457 ;  third,  where  that  which  the 
plaintiff  has  done  has  been  performed  under 
a  special  agreement,  but  not  in  the  time  or 
manner  agreed,  but  yet  has  been  beneficial  to 
the  defendant  and  has  been  accepted  and  en- 
joyed by  him ;  1  Bingh.  34 ;  Taft  v.  Inhab- 
itants of  Montague,  14  Mass.  282,  7  Am.  Dec. 
215;  Watchman  v.  Crook,  5  Gill  &  J.  (Md.) 
240;  McKinuey  v.  Springer,  3  Ind.  59,  54 
Am.  Dec.  470;  Epperly  v.  Bailey,  3  Ind.  72; 
Allen  v.  McKibbin,  5  Mich.  449;  Cole  v. 
Clarke,  3  Wis.  323 ;  see  2  Sm.  Lead.  Cas.  14 ; 
Miller  v.  Phillips,  31  Pa.  218. 

A  surety  who  has  paid  money  for  his  prin- 
cipal may  recover  upon  the  common  counts, 
though  he  holds  a  special  agreement  of  in- 
demnity from  the  principal ;  Gibbs  v.  Bry- 
ant, 1  Pick.  (Mass.)  118.  But  in  general,  ex- 
cept as  herein  stated,  if  there  be  a  special 
agreement,  special  assumpsit  must  be 
brought  thereon ;  Sherman  v.  R.  Co.,  22 
Barb.  (N.  Y.)  239;  Maynard  v.  Tidball,  2 
Wis.  34. 

The  declaration  should  state  the  contract 
in  terms,  in  case  of  a  special  assumpsit ; 
but,  in  general,  assumpsit  contains  only  a 
general  recital  of  consideration,  promise,  and 
breach.  Several  of  the  common  counts  are 
frequently  used  to  describe  the  same  cause 
of  action.  Damages  should  be  laid  in  a  sulH- 
cient  amount  to  cover  the  amount  of  the 
claim;  see  2  Const.  S.  C.  339;  Beverley  v. 
Holmes,  4  Munf.  (Va.)  95;  Benden  v.  Man- 
ning, 2  N.  H.  289;  Bailey  v.  Freeman,  4 
Johns.  (N.  Y.)  280;  Hendrick  v.  Seely,  6 
Conn.  176 ;  People's  Bank  v.  Adams,  43  Vt 
195;  Davisson  v.  Ford,  23  W.  Va.  617. 
Bouv.— 18 


Xon    assumpsit   is   the,  usual   plea,   under 
which    the   defendant   may   give   in    evj 
most  matters  of  defence;  Com.  Dig.  r 
{Z  G,  1).     Under  that  plea  it  ma> 
that  no  such  promise  as  al 
•  '!■  Is  Implied,  or  that  the  promise  if 
was    void  ;     but   defences    Which    from    their 
n.it  Hie  admit  a  promise  and  set  up  a 
quent  performance  or  avoidance  as,  e.  u 
lnent,  set   off,   statute   of  limitations,   should 
be  pleaded  specially,  in  the  absence  of  a  stat- 
utory definition  of  the  effect  of  the  g< 
plea,   which   exists   in    many    states.      Where 
there  are   several   defendants,    they   cannot 
plead   the  general   issue   severally;     Meagher 
v.  Bachelder,  G  Mass.  -ill;  nor  the  same  plea 
in  bar  severally;    Ward  v.  Johnson,  13  Mass. 
152.     The  plea  of  not  guilty  is  defective,  but 
is   cured   by   verdict;     King    v.    McDaniel,    4 
Call    (Va.)  451. 

See,  generally,  Bacon,  Abr. ;  Comyns,  Dig., 
Action  upon  the  case  upon  assumpsit;  Dane, 
Abr.;  Viner,  Abr.;  1  Chit.  PI.;  Lawes, 
Assump.;  1  Greenl.  Ev. ;  Lawson.  Encyc.  of 
PI.  &  Pr. ;  1  Sm.  Lead.  Cas.  282,  note  to 
Lampleigh  v.  Braitbwaite;  Select  Essays  in 
Anglo-American  Leg.  Hist  vol.  3;  Cove- 
nant;   Debt;    Judgment. 

ASSUMPTION  OF  RISK.  See  Negli- 
gence; Masteb  and  Servant;  Employees' 
Liability. 

ASSURANCE.    Any  instrument  which  con- 
firms the  title  to  an  estate.     Legal  evidence 
of   the   trausfer   of  property.     2   Bla. 
294;    [1896]  1  Ch.  4G8. 

The  term  assurances  includes,  In  an  enlarged 
sense,  all  Instruments  which  dispose  of  property, 
whether  they  be  the  grants  of  private  persons,  or 
not;  such  are  fines  and  recoveries,  and  private  acts 
of  the   legislature.     Eunom.  Dial.   2,   s.  5. 

In  Commercial  Law.     Insurance. 

ASSURED.  A  person  who  has  been  in- 
sured by  some  insurance  company  or  under- 
writer, against  the  losses  or  perils  mention- 
ed in  the  policy  of  insurance. 

The  party  whom  the  underwriters  agree  to 
indemnify  in  case  of  loss.  1  Phill.  Ins.  §  2. 
He  is  sometimes  designated  in  maritime  in- 
surance by  description,  and  not  by  name,  as 
in  a  policy  "for  whom  it  may  concern  :" 
Haynes  v.  Rowe,  40  Me.  1S1 ;  Cobb  v.  Ins. 
Co.,  6  Gray  (Mass.)  102;  Myers  v.  Ins.  Co.. 
27  Pa.  268,  G7  Am.  Dee.  462;  Blanchard  v. 
Ins.  Co.,  33  N.  H.  9;  Augusta  ins.  &  Bank- 
ing Co.  of  Georgia  v.  Abbott,  12  Md.  348.  See 
Insurance. 

ASSURER.     An  insurer;    an  underwriter. 

ASTRARIUS  H/ERES  (from  astrc,  the 
hearth  of  a  chimney).     Where  the  ancestor 

by  conveyance  hath  set  his  heir  apparent  and 
his  family  in  a  house  in  his  lifetime.  Cun- 
ningham, L.  Diet. 

ASTRI HILTET.  In  Saxon  Law.  A  pen- 
alty for  a  wrong  done  by  one  in  the  king's 


ASTRIHILTET 


274 


AT  LARGE 


peace.    The  offender  was  required  to  replace 
the  damage  twofold.     Spelman,  Gloss. 

ASYLUM.  A  refuge;  a  place  of  retreat 
and  security.  An  establishment  for  the  de- 
tention and  cure  of  persous  suffering  from 
mental  disease — and  also  a  place  for  the  re- 
ception and  bringing  up  of  desolate  orphans. 
That  some  of  its  inmates  are  to  be  orphans 
will  not  impart  to  the  institution  generally 
the  character  of  an  orphan  asylum;  [1S99] 
A.  C.  107.  It  is  not  an  educational  institu- 
tion ;    State  v.   Bacon,  6  Neb.  286. 

In  International  Law.  1.  A  place  of  refuge 
for  fugitive  offenders.  Every  sovereign  state 
has  the  right  to  offer  an  asylum  to  fugitives 
from  other  countries,  but  there  is  no  cor- 
responding right  on  the  part  of  the  alien  to 
claim  asylum.  In  recent  years  this  right  of 
asylum  has  been  voluntarily  limited  by  most 
states  by  treaties  providing  for  the  extradi- 
tion (q.  v.)  of  fugitive  criminals. 

Owing  to  the  privilege  of  ex-territoriality 
(q.  v.)  possessed  by  ambassadors,  their  resi- 
dences were  in  former  times  frequently  made 
an  asylum  for  fugitive  criminals.  Although 
claimed  by,  and  often  conceded  to,  ambas- 
sadors, this  right  of  asylum  was  not  definite- 
ly recognized,  and  Grotius,  in  1625,  does  not 
admit  it  as  part  of  the  law  of  nations  (II,  c. 
18,  §  8).  In  1726,  when  the  Spanish  Govern- 
ment arrested  the  Duke  of  Ripperda,  who 
had  taken  refuge  in  the  residence  of  the 
British  Embassy,  the  British  Government 
complained  of  the  act  as  a  violation  of  in- 
ternational law  (Causes  Celebres,  I,  178). 
Within  the  past  century  the  right  of  asylum 
has  been  rarely  exercised,  except  in  Central 
and  South  American  countries  and  in  the 
Orient,  where  it  has  been  frequently  granted 
to  political  refugees.  Even  in  those  coun- 
tries the  United  States  has  discouraged  its 
ministers  from  granting  asylum,  though  it 
has  not  absolutely  prohibited  it. 

The  qualified  privilege  of  ex-territoriality 
possessed  by  public  vessels  of  a  state  in  for- 
eign waters  has  led  them  at  times  to  exercise 
the  right  of  asylum,  but  international  com- 
ity requires  that  this  privilege  be  not  abus- 
ed, and  it  can,  in  no  case,  be  exercised  by 
merchant  vessels.     II,  Moore,  §§  291-307. 

2.  In  time  of  war,  a  place  of  refuge  in  neu- 
tral territory  for  belligerent  war-ships.  See 
Neutrality. 

AT.  Expresses  position  attained  by  mo- 
tion to,  and  hence  contact,  contiguity  or  co- 
incidence, actual  or  approximate,  in  space  or 
time.  Being  less  restricted  as  to  relative 
position  than  other  prepositions,  it  may  in 
different  constructions  assume  their  office, 
and  so  become  equivalent  according  to  the 
context  to  in,  on,  near,  by,  about,  under, 
over,  through,  from,  to,  toward,  etc.  Cent. 
Diet. 

AT  LARGE.  Open  to  discussion  or  con- 
troversy ;    not  precluded. 


A  congressman  at  large  is  one  who  is  elect- 
ed by  electors  of  an  entire  state. 

See  Pound;  Running  at  Large;  Animal. 

AT  LAW.  According  to  the  course  of  the 
common  law.    In  the  law. 

ATA  MIT  A.  In  Civil  Law.  A  great-great- 
great-grandfather's  sister. 

ATAVUNCULUS.  In  Civil  Law.  A  great- 
great-great-grandfather's   brother. 

ATA V US.  In  Civil  Law.  The  male  as- 
cendant in  the  fifth  degree. 

AT  HA.  In  Saxon  Law.  (Spelled  also  At' 
ta,  Athe,  Atte.)  An  oath.  Cowell;  Spelman, 
Gloss. 

Athes,  or  Athaa,  a  power  or  privilege  of 
exacting  and  administering  an  oath  in  cer- 
tain cases.     Cowell ;    Blount. 

ATHEIST.  One  who  denies  or  does  not 
believe  in  the  existence  of  a  God. 

Such  persons  are,  at  common  law,  inca- 
pable of  giving  testimony  under  oath,  and 
are  therefore,  incompetent  witnesses;  but 
the  disability  is  now  largely  removed.  See 
Witness. 

AT  I L I  U  M.  Tackle  ;  the  rigging  of  a  ship ; 
plough-tackle.     Spelman,  Gloss. 

ATMATERTERA  (Lat).  In  Civil  Law. 
A  great-great-great-grandmother's  sister. 

ATTACHE.  One  attached  to  an  embassy 
or  a  legation  at  a  foreign  court. 

ATTACHMENT.  Taking  into  the  custody 
of  the  law  the  person  or  property  of  one 
already  before  the  court,  or  of  one  whom  it 
is  sought  to  bring  before  it. 

A  writ  for  the  accomplishment  of  this  pur- 
pose. This  is  the  more  common  sense  of  the 
word. 

It  is  in  its  nature,  but  not  strictly,  a  pro- 
ceeding in  rem;  since  that  only  is  a  proceed- 
ing in  rem  in  which  the  process  is  to  be  serv- 
ed on  the  thing  itself,  and  the  mere  posses- 
sion of  the  thing,  by  the  service  of  process 
and  making  proclamation,  authorizes  the 
court  to  decide  upon  it  without  notice  to  any 
individual  whatever;  Drake,  Att.  §  4  a;  Me- 
gee  v.  Beirne,  39  Pa.  50;  Bray  v.  McClury, 
55  Mo.  128. 

Of  Persons.  A  writ  issued  by  a  court  of 
record,  commanding  the  sheriff  to  bring  be- 
fore it  a  person  who  has  been  guilty  of  con- 
tempt of  court,  either  in  neglect  or  abuse  of 
its  process  or  of  subordinate  powers ;  3  Bla. 
Com.  280 ;  4  id.  283 ;  or  disregard  of  its  au- 
thority in  refusing  to  do  what  is  enjoined ; 
1  Term  266  ;  or  by  openly  insulting  the  court ; 
4  Bla.  Com.  2S3 ;  3  id.  17.  It  is  to  some  ex- 
tent in  the  nature  of  a  criminal  process ; 
Stra.  441.  See  State  v.  McDermott,  10  N.  J. 
L.  63 ;  Bacon  v.  Wilber,  1  Cow.  (N.  Y.)  121, 
n. ;    1  Term  266. 

See  Arrest. 

Of  Property.  A  writ  issued  at  the  institu- 
tion or  during  the  progress  of  an  action,  com 


attachment 


275 


ATTACHMENT 


manding  the  .sheriff  or  other  proper  officer 
to  attach  the  property,  rights,  credits,  or  ef- 
fects of  the  defendant  to  satisfy  the  demands 
of  the  plaintiff. 

It  is  a  process  which  secures  jurisdiction 
of  tin'  defendant,  col  by  personal  service,  but 
by  the  seizure  of  bis  property.  It  may  lie 
either  a  foreign  attachment,  which  is  found- 
ed upon  the  absence  or  nonresidence  i 
defendant,  or  a  domestic  attachment,  which, 
under  various  stale  statutes,  is  provided  for, 
either  as  the  beginning,  or  in  the  course  of 
a  suit.  The  proceedings  iu  both  ds 
cases  are  usually,  in  substance,  the  same. 

The  origin  of  the  law  of  attachment,  as 
administered  in  the  United  States,  is  found 
in  one  of  the  customs  of  London,  "which  is 
agreed  by  all  authorities  to  have  a  very  an- 
cient existence."  Drake,  Att.  §  1.  With  oth- 
er customs  of  Ixjndon,  it  has,  from  time  to 
time,  been  confirmed  by  Royal  ('barter  and 
Acts  of  Parliament,  and  is  declared  "never 
to  become  obsolete  by  non-user  or  abuser"  ; 
id.  The  authority  cited  notes  the  curious 
fact  respecting  the  customs  of  London  that 
they  were  certified  and  recorded  by  word  of 
mouth,  and  that  the  mayor  and  aldermen 
should  declare  whether  the  things  under  dis- 
pute were  a  custom  or  not,  and  that  having 
been  once  recorded,  they  were  afterwards  to 
be  judicially  noticed.  Locke,  in  his  treatise 
on  Attachment,  according  to  the  custom  of 
London,  attributes  its  origin  to  the  R 
Law,  quoting  from  Wilson's  Adams.  Rom. 
Antiq.  194,  in  support  of  his  theory  and  pas- 
sage, which  is  reproduced  in  a  note  to  the 
section  of  Drake  cited.  In  that  and  the  sub- 
sequent sections  will  be  found  what  is  known 
of  the  remedy  thus  derived,  which,  as  is 
there  suggested,  was  found  peculiarly  adapt- 
ed to  our  circumstances  in  the  United  States 
growing  out  of  the  division  of  the  country 
into  states,  each  sovereign,  the  unrestrained 
opportunity  of  transit  from  one  to  another 
and  the  expansion  of  credit  and,  abolition  of 
imprisonment  for  debt.  All  of  these  causes 
contributed  to  the  adoption  of  a  system  of 
remedies  for  acting  directly  upon  the  prop- 
erty of  debtors.  The  proceeding  appears  to 
be  devoid  of  almost  every  feature  of  a  com- 
mon law  proceeding,  there  being  no  service 
of  process  on  the  defendant,  the  seizure  of 
his  property  in  limine,  and  not  under  execu- 
tion, and  the  appropriation  of  debts  due  to 
the  defendant  for  the  payment  of  his  own 
debt,  as  well  as  the  provision  for  the  protec- 
tion of  the  defendant  by  pledges  to  refund 
the  amount  so  collected,  if,  within  a  speci- 
fied time,  there  be  an  appearance  and  the 
debt  be  disproved  ;  id.  §  4.  See  Customs  of 
London. 

The  original  design  of  this  writ  was  to 
secure  the  appearance  of  one  who  had  dis- 
regarded the  original  summons,  by  taking 
possession  of  his  property  as  a  pledge;  3 
Bla.  Com.  2S0. 

By  an  extension  of  this  principle,  in   the 


New   England   states,  pi  a  re- 

mains in  the  custody  of  the  law  after  ai 

until    final  ju  Igmi  nt    in 
See  Bond  v.  Ward,  7  Mi 

une  states  attachments  are  d 
ed  as  foreign  and  d 
sued  against  a  non-i 

i:   is  preserved.   | 
enures  solely  to  the  b<  u 
iny  it  out;    while  the  avails  of  the 
attachment   may   be   shared    I 

who  come  into  court  and  present  their 
claims    for    that   pur; 

It  is  a  distinct  characteristic  of  the  whole 
system  of  remedy  by  attachment,  that    . 
except  in  some  states  where  it  is  autb 
In  chancery— a   special   remedy   at  la 
longing  exclusively  to  a  court  of  law,  and  to 
be    resorted    to    and    pursued    in    conformity 
with  the  terms  of  the  law  conferring  it  :  and 
where  from  any  cause  tl, 

mem  is  not  full  and  complete,  a  court  of 
equity  has  no  power  to  pass  any  order  to  aid 
or   perfect  it;     Drake,  Att.   §  4. 

In  the  New  England  states  the  attachment 
of  the  defendant's  property,  rights,  and 
credits  is  an  incident  of  the  summons  in  all 
actions  ex  contractu.  This  is  called  Trustee 
B,  7.  v.  Elsewhere  throughout  the 
country  the  writ  issues  only  upon  cause 
shown  by  affidavit  And  in  most  of  the  - 
its  issue  must  be  preceded  by  the  execution 
by  or  on  behalf  of  the  plaintiff  of  a  caution- 
ary bond  to  pay  the  defendant  all 
may  sustain  by  reason  of  the  attachment 
The  grounds  upon  which  the  writ  may  be  ob- 
tained vary  in  the  different  states.  Wherev- 
er an  affidavit  is  required  as  the  basis  of  the 
attachment,  it  must  verify  the  plaintiff's 
cause  of  action,  and  also  the  exi 
some  one  or  more  of  the  grounds  of  attach- 
ment prescribed  by  the  local  statute  a,s  au- 
thorizing the  issue  of  the  writ. 

Among  the  grounds  upon  which  attach- 
ments are  usually  permitted  by  statute,  the 
most  frequent  and  universal  is  non-re-: 
in  the  state,  which  is  the  primary  ba- 
the issue  of  a  foreign  attachment :  with 
i  to  this  ground,  however,  a  man  may 
have  two  residences  in  different  stales;  Bar- 
ron v.  Burke,  82  ill.  App.  ii«; :  Rosenzweig  v. 
Weed.  30  Misc.  297,  •',:;  X.  V.  Supp.  447.  'then 
again,  in  most  jurisdictions,  attachments  may 
be  levied  against  the  property  of  absconding 
debtors,  either  actual;  Stewart  v.  Lyman, 
62  App.  Div.  182,  Tit  N.  Y.  supp.  ;•:'«;:  or  In- 
tentional; stock  v.  Reynolds,  121  Micl 
so  N.  w.  l's'.);  Stouffer  v.  Nip!-.  40  Bid.  477: 
and  this  intention  must  be  shown;  Hanson 
v.  Tompkins,  2  Wash.  508,  ^7  Pac.  7.".;  one 
has  been  held  to  be  an  absconding  debtor  who 
conceals  himself:  Stafford  v.  Mills.  r>7  N.  J. 
L.  574,  32  Atl.  7;  or  absents  himself  so  as 
to  prevent  the  service  of  ordinary  process 
upon  him;    Ellington  v.  Moore,  17  Mo.  424. 


ATTACHMENT 


276 


ATTACHMENT 


Other  grounds  upon  which  attachment  is  per- 
mitted in  some  states  are:    The  fraudulent 
incurring  of   a   debt  under   contract;     Mer- 
chants'  Bank  of  Cleveland  v.  Ins.  &  Trust 
Co.,  12  Ohio  Dec.  (Rep.)  73S;  fraudulently  re- 
moving or  disposing  of  property ;   Bullene  v. 
Smith,  73  Mo.  151;    Howard  v.   Caperon,  3 
Willson,  Civ.  Cas.  Ct.  App.  §  313 ;   or  trans- 
ferring it;    Culbertson   v.    Cabeen,   29   Tex. 
247 ;    though  in  the  ordinary  course  of  busi- 
ness;   Farris  v.  Gross,  75  Ark.  391,  87  S.  W. 
G33,  5  Ann.  Cas.  616 ;    but  the  removal  must 
be  fraudulent ;  Dunn  v.  Claunch,  13  Okl.  577, 
76  Pac.  143;    and  it  must  be  actually,  not 
constructively,    fraudulent;     Wadsworth    v. 
Laurie,  164  111.  42,  45  N.  E.  435;    the  death 
of  a  non-resident  debtor  owning  property  in 
the  state ;   Bacchus  v.  Peters,  85  Tenn.  678,  4 
S.   W.  833;    failing  to  pay  on  delivery  the 
price  or  value  of  goods  delivered  where  there 
was  a  contract  so  to  pay ;   Harlow  v.  Sass,  38 
Mo.  34 ;    Miller  v.  Godfrey,  1  Colo.  App.  177, 
27  Pac.  1016 ;    the  fact  that  a  demand  is  not 
otherwise  secured,  or  that  security  given  has 
become   worthless;     Williams   v.   Hahn,    113 
Cal.  475,  45  Pac.  815  (but  not  if  the  security 
was   originally   worthless;    Barbieri  v.    Ra- 
melli,  84  Cal.  154,  23  Pac.  1086) ;    the  failure 
to  pay  for  labor  performed  when  it  should 
have  been  paid  at  the  time ;  De  Lappe  v.  Sul- 
livan, 7  Colo.  1S2,  2  Pac.  926. 

The  remedy  by  attachment  is  allowed  in 
general  only  to  a  creditor.  In  some  states, 
under  special  statutory  provisions,  damages 
arising  ex  delicto  may  be  sued  for  by  attach- 
ment; but  the  almost  universal  rule  is  oth- 
erwise. The  claim  of  an  attaching  creditor, 
however,  need  not  be  so  certain  as  to  fall 
within  the  technical  definition  of  a  debt,  or 
as  to  be  susceptible  of  liquidation  without  the 
intervention  of  a  jury.  It  is  sufficient  if  the 
demand  arise  on  contract,  and  that  the  con- 
tract furnish  a  standard  by  which  the 
amount  due  could  be  so  clearly  ascertained 
as  to  enable  the  plaintiff  to  aver  it  in  his 
affidavit,  or  the  jury  by  their  verdict  to  find 
it;  Van  Winkle  v.  Ketcham,  3  Cai.  (N.  Y.) 
323;  Fisher  v.  Consequa,  2  Wash.  C.  C.  382, 
Fed.  Cas.  No.  4,816;  Wilson  v.  Wilson,  8 
Gill  (Md.)  192,  50  Am.  Dec.  685;  Weaver  v. 
Puryear,  11  Ala.  941;  Jones  v.  Buzzard,  2 
Ark.  415;  Templin  v.  Krahn,  3  Ind.  374; 
Roelofson  v.  Hatch,'  3  Mich.  277. 

Some  of  the  causes  of  action  in  tort  upon 
which,  in  the  absence  of  a  statute,  attach- 
ments have  not  been  permitted  are:  Trover; 
Hynson  v.  Taylor,  3  Ark.  552;  breach  of 
promise  of  marriage ;  Phillips  527  ;  a  steam- 
boat collision;  Griswold  v.  Sharpe,  2  Cal. 
17;  trespass;  Ferris  v.  Ferris,  25  Vt.  100; 
assault  and  battery;  Thompson  v.  Carper, 
11  Humph.  (Tenn.)  542 ;  Minga  v.  Zollicoffer, 
23  N.  C.  278;  loss  of  profits  resulting  from 
the  failure  of  the  defendant  to  dispose  prop- 
erly of  a  return  cargo ;  Warwick  v.  Chase, 
23  Md.  154;  malicious  prosecution;  Tarbell 
v,  Bradley,  27  Vt  535;    Stanly  v.  Ogden,  2 


Root  (Conn.)  259 ;    damage  for  loss  of  prop- 
erty by  a  common  carrier  declared  on  in  tort; 
Piscataqua   Bank  v.  Turnley,   1  Miles   (Pa.) 
312;   money  embezzled  and  lost  in  gambling; 
Babcock  v.  Briggs,  52  Cal.  502 ;   misbehavior 
in  office,  where  there  was  no  bond  and  the 
action  is  in  tort;    Dunlop  v.  Keith,  1  Leigh 
(Va.)   430,   19   Am.   Dec.   755;     expense   and 
loss  of  time  caused  by  a  wound  inflicted  by 
defendant;     Prewitt    v.    Carmichael,    2    La. 
Ann.  943;    breaking  open  a  letter  entrusted 
to  the  care  of  defendant ;   Raver  v.  Webster, 
3   la.  502,  66  Am.  Dec.  96;    slander;    Sar- 
geant  v.  Helmbold,  Harper  (S.  C.)  219 ;  Baune 
v.  Thomassin,  6  Mart.  N.  S.  (La.)  563;    de- 
struction by  fire  of  plaintiff's  property  caus- 
ed by  the  negligence  of  the  defendant;  Han- 
dy v.  Brong,  4  Neb.  60.     If  the  plaintiff  al- 
leged a  cause  of  action  on  a  contract  and  it 
appears  from  the  pleadings  or  the  evidence 
not  to  be  such,  it  should  be  dismissed;    El- 
liott v.  Jackson,  3  Wis.  649. 

In  some  states  an  attachment  may,  under 
peculiar  circumstances,  issue  upon  a  debt  not 
yet  due  and  payable;  but  in  such  cases  the 
debt  must  possess  an  actual  character  to  be- 
come due  in  futuro,  and  not  be  merely  pos- 
sible and  dependent  on  a  contingency,  which 
may  never  happen ;  Srnead  v.  Chrisfield,  1 
Handy  (Ohio)  442.  An  attachment  can  be 
sued  out  in  equity  against  an  absconding 
debtor  by  the  accommodation  maker  of  a 
negotiable  note  not  yet  due;  Altmeyer  v. 
Caulfield,  37  W.  Va.  847,  17  S.  E.  409. 

Corporations,  like  natural  persons,  may  be 
proceeded  against  by  attachment;  Libbey  v. 
Hodgdon,  9  N.  H.  394 ;  Bushel  v.  Ins.  Co.,  15 
S.  &  R.  (Pa.)  173;  Bank  of  United  States  v. 
Bank,  1  Rob.  (Va.)  573;  Wilson  v.  Danforth, 
47  Ga.  676;  St.  Louis  Perpetual  Ins.  Co.  v. 
Cohen,  9  Mo.  421;  Planters'  &  Merchants' 
Bank  of  Mobile  v.  Andrews,  8  Porter  (Ala.) 
404 ;  Mineral  Point  R.  Co.  v.  Keep,  22  111.  9, 
74  Am.  Dec.  124.  It  will  lie  against  a  cor- 
poration for  the  conversion  of  its  own  stock ; 
Condouris  v.  Cigarette  Co.,  3  Misc.  66,  22 
N.  Y.  Supp.  695. 

Representative  persons,  such  as  heirs,  ex- 
ecutors, Administrators,  trustees,  and  others, 
claiming  merely  by  right  of  representation, 
are  not  liable  to  be  proceeded  against,  as 
such,  by  attachment;  Jackson  v.  Walsworth, 
1  Johns.  Cas.  (N.  Y.)  372 ;  Peacock  v.  Wildes, 
8  N.  J.  Law  179;  McCoombe  v.  Dunch,  2 
Dall.  (U.  S.)  73,  1  L.  Ed.  294;  Taliaferro  v. 
Lane,  23  Ala.  369 ;  Patterson  v.  McLaughlin, 
1  Cra.  352,  Fed.  Cas.  No.  10,828;  Metcalf  v. 
Clark,  41  Barb.  (N.  Y.)  45;  Smith  v.  Riley, 
32  Ga.  356;  Levy  v.  Succession  of  Lehman, 
38  La.  Ann.  9 ;  Bryant  v.  Fussel,  11  R.  I.  2S6. 
Goods  in  the  hands  of  a  common  carrier 
are  not  exempt  from  attachment,  and,  when 
it  is  pending,  the  carrier  is  not  justified  in 
giving  them  up  to  the  consignor,  as  the  right 
of  the  officer  to  hold  them  is  to  be  determined 
by  the  court  out  of  which  the  attachment  is- 
sued ;   Stiles  v.  Davis,  1  Black  (U.  S.)  101,  17 


ATTACHMENT 


277 


ATTACHMENT 


L.  Ed.  33 ;  but  goods  in  transit  to  another 
state  cannot  be  attached,  whether  without 
the  state,  when  the  seizure  was  made  (the 
carriers  being  within  the  jurisdiction);  Bates 
v.  R.  Co.,  60  Wis.  296,  19  N.  W.  72,  r,o  Am. 
Rep.  3C9 ;  Western  R.  R.  v.  Thornton,  GO  Ga. 
300;  Sutherland  v.  Bank,  78  Ky.  250;  Ste- 
venot  v.  R.  Co.,  Gl  Minn.  101.  63  N.  W.  256, 
28  L.  R.  A.  GOO;  or  still  within  the  state,  and 
not  moved  from  the  starting  point,  but  load- 
ed for  movement  ;  Baldwin  v.  R.  Co.,  81 
Minn.  247.  83  N.  W.  986,  51  L.  R.  A.  640,  83 
Am.  St.  Rep.  370.  Obedience  to  attachment 
process  does  not  deprive  the  carrier  of  his 
right  to  his  charges  for  services  to  the  ship- 
per, and  he  may  retain  possession  of  the 
goods  until  the  charges  are  paid;  Rucker  v. 
Donovan,  13  Kan.  251,  19  Am.  Rep.  S4 ;  Wolfe 
v.  Crawford.  54  Miss.  514. 

It  is  a  question  whether  the  personal  bag- 
gage of  a  traveller  can  be  reached  or  affect- 
ed by  attachment;  Western  R  E.  v.  Thorn- 
ton, 60  Ga.  300. 

Property  in  the  hands  of  officers  of  court 
cannot  be  attached,  as  receivers;  Martin  v. 
Davis,  21  la.  r>:;7 ;  Wiswall  v.  Sampson,  14 
How.  (TJ.  S.)  52,  14  L.  Ed.  322;  Columbian 
Book  Co.  v.  De  Golyer,  115  Mass.  69 ;  Glenn 
v.  Gill,  2  Md.  1 ;  Taylor  v.  Gillcan,  23  Tex. 
508;  Field  v.  Jones,  11  Ga.  413;  Nelson  v. 
Conner,  6  Rob.  (La.)  339 ;  Langdon  v.  Lock- 
ett,  6  Ala..  727,  41  Am.  Dec.  78;  Farmers' 
Bank  of  Delaware  v.  Beaston,  7  Gill  &  J. 
(Md.)  421,  28  Am.  Dec.  226;  Gouverneur  v. 
Warner,  2  Sandf.  (N.  Y.)  624;  Yuba  County 
v.  Adams,  7  Cal.  35;  Bentley  v.  Shrieve,  4 
Md.  Ch.  412 ;  Robinson  v.  R.  Co.,  66  Pa.  160 ; 
an  assignee  in  bankruptcy;  In  re  Cunning- 
ham, 19  N.  B.  R.  276,  Fed.  Cas.  No.  3478; 
or  a  sheriff;  Bradley  v.  Kesee,  5  Cold. 
(Tenn.)  223,  9i  Am.  Dec.  246. 

The  levy  of  an  attachment  does  not  change 
the  estate  of  the  defendant  in  the  property 
attached;  Bigelow  v.  Willson,  1  Pick.  (Mass.) 
485;  Starr  v.  Moore,  3  McLean  354,  Fed. 
Cas.  No.  13,315;  Perkins'  Heirs  v.  Norvell, 
G  Humphr.  (Tenn.)  151;  Snell  v.  Allen,  1 
Swan.  (Tenn.)  208;  Oldham  v.  Scrivener,  3 
B.  Monr.  (Ky.)  579;  Sa minis  v.  Sly,  54  Ohio 
St.  511,  44  N.  E.  508,  56  Am.  St.  Rep.  731. 
Nor  does  the  attaching  plaintiff  acquire  any 
property  thereby;  Bigelow  v..  Willson,  1 
Pick.  (Mass.)  4S5;  Crocker  v.  Radcliffe,  3 
Brev.  (S.  C.)  23;  Willing  v.  Blocker,  2  S.  & 
R.  (Pa.)  221 ;  Owings  v.  Norwood's  Lessee,  2 
Harr.  &  J.  (Md.)  96;  Goddard  v.  Perkins,  9 
N.  H.  488.  Nor  can  he  acquire  through  his 
attachment  any  higher  or  better  rights  to  the 
property  attached  than  the  defendant  had 
when  the  attachment  was  levied,  unless  he 
can  show  some  fraud  or  collusion  by  which 
his  rights  are  Impaired;  Crocker  v.  Tierce, 
■U  Me.  177;  Kentucky  Refining  Co.  v.  Bank, 
89  S.  W.  492,  28  Ky.  Law  Rep,  486. 

The  levy  of  an  attachment  constitutes  a 
lien  on  the  property  or  credits  attached ; 
Goore  v.  McDaniel,  1   McCord   (S.   C.)   4S0 ;' 


Peck   v.    Webber,    7   How.    (Miss.)    65S;    Vaa 
Loan  v.  Kline,  10  Johns.  (N.  Y.)  129 ;    1 1 
port  v.  Lacon,  17  Conn.  liT^  ;    Brskine  l 
ley,   li'  Leigh  (Va.)  406;    Moore  v.  Holt,  10 
Gratt    (Ya.)   284;     Grigg   v.    Bank 
311;     Hervey    v.    Champion,     i ;     Humphr. 
|'|.  on.)  509;   Ziegenhager  v.  Doe,  l  Ind 
People  v.  Cameron,  2  Gilman  (111.)   • 
Ident,  etc.,  of  Franklin  Bank  \    I  ler,  23 

Me.  GO,  39  Am.  Dec  601;    Bat  War- 

ren, 11  N.  H.  509;  Vreeland  v.  Bruen,  21  N. 
J.  L.  214;  Downer  v.  Brackett,  21  Vi 
Fed.  Cas.  No.  4,043;  In  re  Rowell,  21  \ 
Fed.  Cas.  No.  12,095;  Ingraham  v.  Phillips, 
1  Day  (Conn.)  117;  Lackey  v.  Seibert,  23  Mo. 
85;  Hannahs  v.  Felt,  15  la.  141;  Emery  v. 
Vunt.  7  Colo.  107,  1  Pac.  686;  Ward  v.  Mc- 
Kenzle,  33  Tex.  297,  7  Am.  Rep.  261  :  Davis 
Mill  Co.  v.  Bangs,  6  Kan.  App.  38,  49  Pac. 
628;  Beardslee  v.  [ngraham,  L83  N.  Y.  411, 
76  N.  E.  476,  3  L.  R.  A.  (N.  S.)  in;:;;  Perry 
v.  Griefen,  99  Me.  420,  59  Atl.  G01.  But.  as 
the  whole  office  of  an  attachment  is  to  seize 
and  hold  property  until  it  can  be  subjected  to 
execution,  this  lien  is  of  no  value  unless  the 
plaintiff  obtain  judgment  against  the  de- 
fendant and  proceed  to  subject  the  property 
to  execution. 

Where  two  or  more  separate  attachments 
are  levied  simultaneously  on  the  same  prop- 
erty, they  will  be  entitled  each  to  an  aliquot 
part  of  the  proceeds  of  the  property  ;  Durant 
v.  Johnson,  19  Tick.  (Mass.)  544;  Campbell 
v.  Ruger,  1  Cow.  (N.  Y.)  215;  Nutter  v. 
net,  3  B.  Monr.  (Ky.)  201;  True  v.  Emery,  67 
Me.  28;  Wilson  v.  Blake,  53  Vt.  305;  Thurs- 
ton v.  Huntington,  17  N.  II.  438;  see  Love  v. 
Harper,  4  Humphr.  (Tenn.)  113;  Yelverton  v. 
Burton,  26  Pa.  351.  Where  several  attach- 
ments are  levied  successively  on  the  same 
property,  they  have  priority  in  the  order  in 
which  they  are  sued  out ;  Lutter  &  Voss  v. 
Grosse,  82  S.  W.  278,  26  Ky.  L.  Bep.  585;  and 
a  junior  attaching  creditor  may  Impeach  a 
senior  attachment,  or  judgment  thereon,  for 
fraud;  Pike  v.  Pike,  24  N.  II.  384;  Walker 
v.  Roberts,  4  Rich.  (S.  C.)  561;  McCluny  v. 
Jackson,  6  Gratt.  (Va.)  9G ;  Smith  v.  Getting- 
er,  3  Ga.  140;  Reed  v.  Ennis,  4  Abb.  Pr.  (N. 
Y.)  393;  Hale  v.  Chandler,  3  Mich.  531  :  but 
not  on  account  of  irregularities;  Kim  aid  v. 
Neall,  3  McCord  (S.  c.)  201;  Camberford  v. 
Hall,  3  McCord  (S.  C.)' 345 ;  Walker  v.  Rob- 
erts, 4  Rich.  (S.  C.)  561 ;  In  re  Griswold,  13 
Barb.   (N.   Y.)   412. 

By  the  levy  of  an  attachment  upon  per- 
sonalty, the  officer  acquires  a  special  prop- 
erty therein,  which  continues  so  long  as  be 
remains  liable  therefor,  either  to  have  it 
forthcoming  to  satisfy  the  plaintiff's  demand, 
or  to  return  it  to  the  owner  upon  the  attach- 
ment being  dissolved,  but  no  longer;  Barker 
v.  Miller,  6  Johns.  (N.  T.)  195;  Ga 
Gates,  15  Mass.  .'MO;  Toole  v.  Symonds,  1 
N.  11.  289,  8  Am.  Dec.  71;  Nichols  v.  Valen- 
tine, 3d  Me.  322;  Braley  v.  French,  2s  Vt 
546;    Foulks  v.  Pegg,  6  New   136;    Stiles  v. 


ATTACHMENT 


278 


ATTACHMENT 


Davis,  1  Black  (U.  S.)  101,  17  L.  Ed.  33; 
Holt  v.  Burbank,  47  N.  H.  1G4;  Wentworth 
v.  Sawyer,  76  Me.  434;  Rochester  Lumber 
Co.  v.  Locke,  72  N.  H.  22,  54  Atl.  705.  For 
any  violation  of  his  possession,  while  his  lia- 
bility for  the  property  continues,  he  may 
maintain  trover,  trespass,  and  replevin;  Lud- 
den  v.  Leavitt,  9  Mass.  104,  6  Am.  Dec.  45; 
Lathrop  v.  Blake,  23  N.  H.  46;  Walker  v. 
Foxcroft,  2  Greenl.  (Me.)  270;  3  Foster  46; 
Carroll  v.  Frank,  2S  Mo,  App.  69  ;  Whitney 
v.  Ladd,  10  Yt.  165. 

As  it  would  ofteu  subject  an  officer  to 
great  inconvenience  to  keep  attached  proper- 
ty in  his  possession,  he  is  allowed  in  the  New 
England  states  and  New  York  to  deliver  it 
over,  during  the  pendency  of  the  suit,  to 
some  responsible  person,  who  will  give  an 
accountable  receipt  for  it,  and  who  is  usually 
styled  a  receipter  or  bailee,  and  whose  pos- 
session is  regarded  as  that  of  the  officer,  and, 
therefore,  as  not  discharging  the  lien  of  the 
attachment.  This  practice  is  not  authorized 
by  statute,  but  has  been  so  long  in  vogue  in 
the  states  where  it  prevails  as  to  have  be- 
come a  part  of  their  systems ;  Drake,  Att.  § 
344. 

In  many  states  provisions  exist,  authoriz- 
ing the  defendant  to  retain  possession  of 
the  attached  property  by  executing  a  bond 
with  sureties  for  the  delivery  thereof,  either 
to  satisfy  the  execution  which  the  plaintiff 
may  obtain  in  the  cause,  or  when  and  where 
the  court  may  direct.  This  bond,  like  the 
bailment  of  attached  property,  does  not  dis- 
charge the  lien  of  the  attachment;  Gray  v. 
Perkins,  12  Smedes  &  M.  (Miss.)  622;  Rives 
v.  Wilborne,  6  Ala.  45;  Evans  v.  King,  7  Mo. 
411;  People  v.  Cameron,  2  Gilman  (111.)  46S; 
Hagan  v.  Lucas,  10  Pet.  (U.  S.)  400,  9  L.  Ed. 
470;  Boyd  v.  Buckingham,  10  Humphr. 
(Tenn.)  434.  Property  thus  bonded  cannot 
be  seized  under  another  attachment,  or  un- 
der a  junior  execution ;  Rives  v.  Wilborne, 
6  Ala.  45;  Kane  v.  Pilcher,  7  B.  Monr.  (Ky.) 
651 ;    Gordon  v.  Johnston,  4  La.  304. 

Provisions  also  exist  in  many  states  for 
the  dissolution  of  an  attachment  by  the  de- 
fendant's giving  bond  and  security  for  the 
payment  of  such  judgment  as  the  plaintiff 
may  recover.  This  is,  in  effect,  merely  Spe- 
cial Bail.  From  the  time  it  is  given,  the 
cause  ceases  to  be  one  of  attachment,  and 
proceeds  as  if  it  had  been  instituted  by 
summons;  Harper  v.  Bell,  2  Bibb  (Ky.)  221; 
People  v.  Cameron,  2  Gilman  (111.)  468;  Fife 
v.  Clarke,  3  McCord  (S.  C.)  347;  Reynolds 
v.  Jordan,  19  Ga.  436;   Drake,  Att.  §  312. 

One  holding  property  by  virtue  of  a  forth- 
coming bond  may  sue  for  its  destruction ; 
Louisville  &  N.  R.  Co.  v.  Brinkerhoff,  119  Ala. 
606,  24  South.  892.  The  execution  of  the 
bond  does  not  discharge  the  attachment  or 
levy,  but  the  property  is  still  in  contempla- 
tion of  law  in  the  possession  of  the  court; 
Hobson  &  Co.  v.  Hall,  10  Ky.  L.  Rep.  635. 

An  attachment  is  dissolved  by  a  final  judg- 


ment for  the  defendant ;  Suydam  v.  Hugge- 
ford,  23  Pick.  (Mass.)  465;  Johnson  v.  Ed- 
son,  2  Aik.  (Vt.)  299;  Brown  v.  Harris,  2 
G.  Greene  (la.)  505,  52  Am.  Dec.  535;  it 
may  be  dissolved,  on  motion,  on  account  of 
defects  in  the  plaintiff's  proceedings,  appar- 
ent on  their  face ;  but  not  for  defects  which 
are  not  so  apparent;  Baldwin  v.  Conger,  9 
s  &  M.  (Miss.)  516.  Every  such  mo- 
tion must  precede  a  plea  to  the  merits;  Gar- 
mon  v.  Barringer,  19  N.  C.  502 ;  Young  v. 
Gray,  Harp.  (S.  C.)  38;  Stoney  v.  McNeill, 
Harp.  (S.  C.)  156;  Watson  v.  McAllister,  7 
Mart.  O.  S.  (La.)  3GS;  Symons  v.  Northern, 
49  N.  C.  241 ;  Drakford  v.  Turk,  75  Ala.  339 ; 
Memphis,  C.  &  L.  R.  Co.  v.  Wilcox,  48  Pa. 
161.  The  death  of  the  defendant  pendente 
lite  is  held  in  some  states  to  dissolve  the 
attachment;  Sweringen  v.  Eberius'  Adm'r,  7 
Mo.  421,  3S  Am.  Dec.  463 ;  Vaughn  v.  Sturte- 
vant,  7  R.  I.  372;  Phillips  v.  Ash's  Heirs  and 
Adm'rs,  63  Ala.  414  (but  not  after  judgment; 
Fitch  v.  Ross,  4  S.  &  R.  [Pa.]  557).  And  so 
the  civil  death  of  a  corporation;  Farmers' 
&  Mechanics'  Bank  v.  Little,  8  W.  &  S.  (Pa.) 
207,  42  Am.  Dec.  293;  Paschall  v.  Whitsett, 
11  Ala.  472.  Not  so,  however,  the  bankrupt- 
cy of  the  defendant ;  Downer  v.  Brackett,  21 
Vt.  599,  Fed.  Cas.  No.  4,043;  President,  etc., 
of  Franklin  Bank  v.  Bachelder,  23  Me.  60, 
39  Am.  Dec.  601 ;  Kittredge  v.  Warren,  14 
N.  H.  509;  Davenport  v.  Til  ton,  10  Mete. 
(Mass.)  320;  Vreeland  v.  Bruen,  21  N.  J.  L. 
214;  Wells  v.  Brander,  10  Smedes  &  M. 
(Miss.)   348;    Hill  v.  Harding,  93  111.  77. 

In  those  states  where  under  a  summons 
property  may  be  attached  if  the  plaintiff  so 
directs,  the  defendant  has  no  means  of  de- 
feating the  attachment  except  by  defeating 
the  action ;  but  in  some  states,  where  an 
attachment  does  not  issue  except  upon  stated 
grounds,  provision  is  made  for  the  defend- 
ant's contesting  the  validity  of  the  alleged 
grounds;  while  in  other  states  it  is  held  that 
he  may  do  so,  as  a  matter  of  right,  without 
statutory  authority ;  Morgan  v.  Avery,  7 
Barb.  (N.  Y.)  656;  Campbell  v.  Morris,  3 
Harr.  &  McH.  (Md.)  535;  Havis  v.  Trapp,  2 
Nott  &  McC.  JS.  C.)  130;  Harris  v.  Taylor, 
3  Sneed  (Tenn.)  536,  67  Am.  Dec.  576;  Voor- 
hees  v.  Hoagland,  6  Blackf.   (Ind.)  232. 

As  to  the  attachment  of  property  or  indebt- 
edness held  by  or  owing  from  a  third  person, 
see  Garnishment. 


ATTACHMENT    OF    THE    FOREST. 

Court  of  Attachment. 


See 


ATTACHMENT  OF  PRIVILEGE.  A  pro- 
cess by  which  a  man,  by  virtue  of  his  privi- 
lege, calls  another  to  litigate  in  that  court 
to  which  he  himself  belongs,  and  who  has 
the  privilege  to  answer  there. 

A  writ  issued  to  apprehend  a  person  in  a 
privileged  place.     Termes  de  la  Ley. 

ATTAINDER.  That  extinction  of  civil 
rights    and    capacities    which    takes    place 


ATTAINDER 


279 


ATT] 


whenever  a  person  who  has  committed  trea- 
son or  felony  receives  sentence  of  death  for 
his  crime.  1  Steph.  Com.  408;  1  Bish.  Cr. 
L.  §  641. 

Attainder  by  confession  is  either  by  plead- 
ing guilty  at  the  bar  U,>fore  the  judges,  and 
not  putting  one's  self  on  one's  trial  by  a 
jury,  or  before  the  coroner  in  sanctuary, 
when,  in  ancient  times,  the  offender  was 
obliged  to  abjure  the  realm. 

Attainder  by  verdict  is  when  the  prisoner 
at  the  bar  pleads  not  guilty  to  the  indict- 
ment, and  la  pronounced  guilty  by  the  ver- 
dict of  the  jury. 

Attainder  by  process  or  outlaicry  is  wtren 
the  party  flies,  and  is  subsequently  outlawed. 
Coke,  Litt.  391. 

Tbe  effect  of  attainder  upon  a  felon  is,  in 
general  terms,  that  all  his  estate,  real  and 
personal,  is  forfeited;  that  his  blood  is  cor- 
rupted, so  that  nothing  passes  by  inherit- 
ance to,  from,  or  through  him;  1  Wins. 
Saund.  3G1,  n. ;  G  Coke  G3  a,  G8  b;  2  Rob. 
Eccl.  547;  22  Eng.  L.  &  Eq.  598;  that  he 
cannot  sue  in  a  court  of  justice ;  Co.  Litt. 
130  a.     See  1  Bish.  Cr.  Law.  §  641. 

In  England,  by  statute  33  &  34  Vict.  c.  23, 
attainder  upon  conviction,  with  consequent 
corruption  of  blood,  forfeiture,  or  escheat,  is 
abolished. 

In  the  United  States,  the  doctrine  of  at- 
tainder is  now  scarcely  known,  although 
during  and  shortly  after  the  Revolution  acts 
of  attainder  were  passed  by  several  of  the 
states.  The  passage  of  such  bills  is  ex- 
pressly forbidden  by  the  constitution. 

Under  the  Confiscation  Act  of  July  17, 
1S62,  which  imposed  the  penalty  of  con- 
fiscation of  property  as  a  punishment  for 
treason  and  rebellion,  all  that  could  be  sold 
was  a  right  to  the  property  seized,  terminat- 
ing with  the  life  of  the  person  for  whose 
offence  it  was  seized;  Bigelow  v.  Forrest,  9 
Wall.  (U.  S.)   339,  19  L.  Ed.  G96. 

ATTAINT.  Attainted,  stained,  or  black- 
ened. 

A  writ  which  lies  to  inquire  whether  a 
jury  of  twelve  men  gave  a  false  verdict. 
Bracton,  1.  4,  tr.  1,  c.  134;  Fleta,  1.  5,  c. 
22,  §  8. 

Formerly  the  jury  were  rather  witnesses  thai 
judges  ;  a  false  verdict  would  be  perjury.  The  ag- 
grieved party  procured  a  writ  of  attaint.  The  case 
was  tried  before  21  jurors,  usually  knights.  The 
penalty  on  conviction  was  one  year's  imprisonment, 
forfeiture  of  goods,  etc.  Its  origin  is  uncertain;  it 
appears  on  the  record  of  the  King's  Court  in  1202. 
It  was  limited  to  the  possessory  assizes  (see  Assize 
of  Novel  Disseisin),  but  by  1360  it  had  been  ex- 
tended to  all  classes  of  cases.  It  came  to  be  the 
rule  that  the  attaint  jury  must  have  before  it  the 
evidence  on  which  the  first  jury  founded  its  ver- 
dict, but  the  first  jury  could  produce  new  evidence. 
Before  1565  it  was  seldom  in  use;  it  was  abolished 
in  18^5.     1  Holdsw.  Hist.  E.  L.  161. 

ATTEMPT.     An  endeavor  to  accomplish  a 

crime  carried  beyond  mere  preparation,  but 
falling  short  of  execution  of  the  ultimate  de- 
sign in  any  part  of  it.     Com.  v.  McDonald,  5 


Cush.  (Mass.)  3C7 ;  GrifBn  v.  State,  2G  Ga. 
493. 

An  intent  to  do  a  particular  criminal  thing 
combined  with  an  act  which  fal  - 
the  thing  intended.     1  Bish.  <  r.  Law  j  7L>: 
Johnson  v.  stair,  1 1  Ga.  55 ;    St. 
shall,  14  Ala.  411;  People  v.  Lawton,  ">i;  Barb. 
(N.  Y.)  126;   Cunningham  v.  Stat' 
685. 

"An  attempt,   in  general,   is   an  overt  act 
done  in  pursuance  of  an  intent  to  <1<> 
dflc   thing,   tending  to  the  end,   but   falling 
short  of  complete  accomplishment  of  it." 

"In  law,  tbe  definition  must  have  this  fur- 
ther qualification,  that  the  overt  ad  must 
be  sufficiently  proximate  to  the  Intended 
crime  to  form  one  of  tbe  natural  series  of 
acts  which  the  intent  requires  for  its  full 
execution."'  Mitchell,  J.,  in  Com.  v.  Eagan, 
190  Pa.  10,  21,  42  Atl.  371.  377. 

To  constitute  an  attempt,  there  must  be 
an  intent  to  commit  some  act  which  would 
be  indictable,  if  done,  either  from  its  own 
character  of  that  of  its  natural  and  probable 
consequences;  State  v.  Jefferson,  3  Ilarr. 
(Del.)  571;  Moore  v.  State,  18  Ala.  532, 
People  v.  Shaw,  1  Tark.  Cr.  Cas.  (N.  V.  i 
327;  Davidson  v.  State,  9  Humphr.  (Tenn.) 
45.1;  9  C.  &  P.  518;  1  Crawf.  &  D.  156,  186; 
1  Bish.  Cr.  Law  §  731;  an  act  apparently 
adapted  to  produce  the  result  intended ; 
Whart.  Cr.  L.  §  1S2 ;  State  v.  Clarissa.  11 
Ala.  57;  Com.  v.  Mauley,  12  Pick.  (M 
173;  Dunbar  v.  Harrison,  18  Ohio  St.  32; 
State  v.  Rawles,  65  N.  C.  334;  Kunkle  v. 
State,  32  Ind.  220;  V.  S.  v.  Morrow,  4  Wash. 
C.  C.  733,  Fed.  Cas.  No.  15,S19;  Rasniek  v. 
Com.,  2  Va.  Cas.  35G ;  6  C.  &  P.  403;  1  ! 
19  (though  some  cases  require  a  complete 
adaptation;  1  Bish.  Cr.  L.  749);  an  act  im- 
mediately and  directly  tending  to  tbe  exe- 
cution of  the  principal  crime,  and  committed 
by  the  prisoner  under  such  circumst 
that  he  has  the  power  of  carrying  his  in- 
tention into  execution;  1  F.  &  F.  511;  in- 
cluding solicitations  of  another;  2  1 
People  v.  Bush,  4  Hill  (N.  v.  >  133;  state  v. 
Avery,  7  Conn.  266,  18  Am.  Dec.  105;  Com. 
v.  Harrington.  3  Pick.  (Mass.)  2<i;  D.  S.  v. 
Worrall,  2  Hall.  (U.  S.)  3S4.  1  L.  1M 
but  mere  solicitation,  not  directed  to  ii 
curement  of  some  specific  crime,  is  not  an 
attempt;  Wharf.  Cr.  L.  179;  Bee  Solicita- 
tion; and  the  crime  intended  must  be  at 
least  a  misdemeanor;  l  C.  &  M.  661,  n. ; 
Etespublica  v.  Roberts,  l  Dall.  I  D.  S.)  ::'.',  l 
L.  Ed.  27.  An  abandoned  attempt,  there  be- 
ing no  outside  cause  prompting  the  abandon- 
ment, is  not.  Indictable;    Whart.  Cr.  L.  $  137. 

It  has   been   held  that  an  attempt  to  com- 
mit a  crime,  which  could  not,  under  the  cir- 
cumstances, Ik'  consummated,   is  not  a  crim- 
inal attempt:    Dears.  &  B.  C.  < '.   197;    0 
c.  c.    197;    P(  ople  v.  Moran,   123  X.  Y.  254, 

25  X.  E.  11-.  in  I..  R.  A.  109,  20  Am.  St.  Rep. 
732;  contra,  s  W.  R.  95  (where  in  a  re 
mark   which    seems   both    vbita-  and   casual, 


ATTEMPT 


280 


ATTENDANT  TERMS 


the  Court  of  Cr.   Cas.  Res.  disapproves  the 
earlier  English  cases)  ;   Com.  v.  McDonald,  5 
Cush.  (Mass.)  365;   People  v.  Jones,  46  Mich. 
441,  9  N.  W.  486;    State  v.  Wilson,  30  Conn. 
500;    Rogers  v.  Com.,  5  S.  &  R.    (Pa.)   463; 
Hamilton  v.  State,  36  Ind.  2S0,  10  Am.  Rep. 
22.      These    are    commonly    known    as    the 
"pickpocket  cases,"  but  the  doctrine  that  one 
may  be  guilty  of  an  attempt  to   commit  a 
crime,  when  it  was  for  some  reason  unknown 
to  the  perpetrator,  impossible,  has  been  ap- 
plied in  cases  of  other  crimes,  as  homicide; 
People  v.  Lee  Kong,  05  Cal.  666,  30  Pac.  800, 
17  L.  R.  A.  626,  29  Am.  St.  Rep.  165 ;    brib- 
ery ;  Ex  parte  Bozeinan,  42  Kan.  451,  22  Pac. 
628 ;    State  v.  Mitchell,  170  Mo.  633,  71  S.  W. 
175,  94  Am.  St.  Rep.  763;   obtaining  by  false 
pretense;   11  Cox  C.  C.  570;   extortion;    Peo- 
ple v.  Gardner,  144  N.  Y.  119,  38  N.  E.  1003, 
28  L.  R.  A.  699,  43  Am.  St.  Rep.  741 ;    bur- 
glary, where  there  was  no  property  on  the 
premises   which    could   be   stolen;     State   v. 
Beal,  37  Ohio  St.  108,  41  Am.  Rep.  490 ;   abor- 
tion, where  the  woman  was  not  pregnant;   2 
Cox  C.  C.  41 ;   but  not  where  the  woman  was 
not  quick  with  child  when  that  was  required 
to    constitute    the    offence   of   procuring    an 
abortion;    State  v.  Cooper,  22  N.  J.  L.  52,  51 
Am,  Dec.  248;  or  where  the  charge  was  of  an 
attempt  to  commit  rape  where  the  circum- 
stances were  such  that  if  the  object  had  been 
obtained  it  would  not  have  been  rape ;   State 
v.   Brooks,   76  N.  C.   1 ;    People  v.  Quin,  50 
Barb.   (N.  Y.)   128;    contra,  24  Q.  B.  D.  357; 
Com.    v.   Shaw,    134   Mass.   221;    Rhodes   v. 
State,  1  Coldw.   (Tenn.)   351.     The  cases  on 
this   subject   are  collected  in  an  article  on 
"Criminal  Attempts"  by  J.  H.  Beale,  Jr.,  in 
16  Harv.  L.  Rev.  491.     See,  also,  9'  L.  R.  A. 
(N.    S.)    263,   note.     The  offense  may  exist 
though    the   act   may    be   impossible   of   ac- 
complishment   by     the    methods    employed; 
Com.  v.  Kennedy,  170  Mass.  18,  48  N.  E.  770. 
Mere  preparations,  though  made  with  crim- 
inal   intent,   do   not   constitute   an   attempt; 
[1903]  T.  S.  868  (So.  Afr.). 

An  indictment  has  been  upheld  upon  a 
criminal  intent  coupled  with  an  act  (procur- 
ing dies  for  counterfeiting)  which  fell  short 
of  an  attempt  under  their  statute;  33  E.  L. 
&  E.  533.     See  1  Bish.  Cr.  L.  §  724. 

An  attempt  to  commit  a  crime  was  not 
in  itself  a  crime,  in  the  early  common  law, 
but  it  is  now  generally  made  such  by  statute ; 
and  in  some  cases  attempts  are  specially  pro- 
vided against  with  reference  to  particular 
crimes,  as  arson.  See  4  L.  R.  A.  (N.  S.)  417, 
note,  where  cases  under  some  state  statutes 
are  found.    See  Rape;   Suicide. 

ATTENDANT.  One  who  owes  a  duty  or 
service  to  another,  or  in  some  sort  depends 
upon  him.    Termes  de  la  Ley. 

ATTENDANT  TERMS.  Long  leases  or 
mortgages  so  arranged  as  to  protect  the  title 
of  the  owner. 

To  raise  a  portion  for  younger  children,  it  was 
quite  common  to  make  a  mortgage  to  trustees.    The 


powers  of  these  trustees  were  generally  to  take 
possession  of  the  estate,  or  to  sell  a  part  of  the 
term  if  the  portions  were  not  duly  paid.  If  the  deed 
did  not  become  ipso  facto  void  upon  payment  of  the 
portion,  a  release  was  necessary  from  the  trustees 
to  discharge  the  mortgage.  If  this  was  not  given, 
the  term  became  an  outstanding  satisfied  term.  The 
purchaser  from  the  heir  then  procured  an  assign- 
ment of  the  term  to  trustees  for  his  benefit,  which 
then  became  a  satisfied  term  to  attend  the  inherit- 
ance, or  an  attendant  term.  These  terms  were  held 
attendant  by  the  courts,  without  any  assignment, 
and  operated  to  defeat  intermediate  alienations  to 
some  extent.  There  were  other  ways  of  creating 
outstanding  terms  besides  the  method  by  mort- 
gage; but  the  effect  and  general  operation  of  all 
these  were  essentially  the  same.  By  reason  of  the 
want  of  notice,  by  means  of  registration,  of  the 
making  of  charges,  mortgages,  and  conveyances  of 
lands,  this  mode  of  protecting  an  innocent  pur- 
chaser by  means  of  an  outstanding  term  to  attend 
the  inheritance  came  to  be  very  general  prior  to  the 
8  &  9  Vict.  c.  112,  which  abolished  all  such  terms 
as  soon  as  satisfied.    1  Washb.  R.  P.  311 ;  4  Kent.  86. 

ATTENTAT.  Any  thing  whatsoever 
wrongfully  innovated  or  attempted  in  the 
suit  by  the  judge  a  quo,  pending  an  appeal. 
Used  in  the  civil  and  canon  law;  1  Add. 
Eccl.  22,  note;    Ayliffe,  Parerg.  100. 

ATTENTION.  Consideration;  notice.  The 
phrase  "your  bill  shall  have  attention"  was 
held  to  be  ambiguous  and  not  to  amount  to 
an  acceptance  of  the  bill;   2  B.  &  Aid.  113. 

ATTERMINARE.  To  put  off  to  a  succeed- 
ing term ;   to  prolong  the  time  of  payment  of 
a  debt.    Stat.  Westm.  2,  c.  4;  Co  well;  Blount. 
ATTERMINING.     The  granting  a  time  or 
term  for  the  payment  of  a  debt. 

ATTERMOIEMENT.  In  Canon  Law.  A 
making  terms;  a  composition,  as  with  cred- 
itors.   7  Low.  C.  272,  306. 

ATTESTATION.  The  act  of  witnessing  an 
instrument  in  writing,  at  the  request  of  the 
party  making  the  same,  and  subscribing  it  as 
a  witness.  3  P.  Wins.  254;  Shanks  v.  Chris- 
topher, 3  A.  K.  Marsh.  (Ky.)  146;  Hall  v. 
Hall,  17  Pick.  (Mass.)  373. 

Deeds,  at  common  law,  do  not  require  at- 
testation; 2  Bla.  Com.  307;  3  Dane,  Abr.  354; 
Thacher  v.  Phinney,  7  Allen  (Mass.)  149; 
and  there  are  several  states  where  at  com- 
mon law  it  was  not  necessary;  Ingram  v. 
Hall,  2  N.  C.  205 ;  Dole  v.  Thurlow,  12  Mete. 
(Mass.)  157.  In  many  of  the  states  there 
are  statutory  requirements  on  the  subject, 
and  where  such  exist  they  must  be  strictly 
complied  with.  It  is  generally  safe  to  have 
two  witnesses,  one  of  whom  may  be  and  usu- 
ally is  the  officer  taking  the  acknowledg- 
ment. See  Coit  v.  Starkweather,  8  Conn. 
289,  20  Am.  Dec.  110 ;  Stone  v.  Ashley,  13  N. 
H.  38;  Shults  v.  Moore,  1  McLean  520,  Fed. 
Cas.  No.  12,824;  Ross  \.  Worthington,  11 
Minn.  443  (Gil.  323),  88  Am.  Dec.  95;  2 
Greenl.  Ev.  §  275,  n. ;  4  Kent  457.  The  requi- 
sites are  not  the  same  in  all  cases  as  against 
the  grantor  and  as  against  purchasers.  See 
French  v.  French,  3  N.  H.  234. 

The  attesting  witness  need  not  see  the 
grantor  write  his  name:  if  he  sign  in  the 


ATTESTATION 


281 


ATTORN 


presence  of  the  grantor,  and  at  his  request, 
it  is  sufficient;  Jar.  Wills  87-91;  2  B.  &  P. 
217. 

Wills  must  usually  be  attested  by  compe- 
tent or  credible  witnesses;  2  Greenl.  Ev.  § 
C91 ;  Hawes  v.  Humphrey,  9  Pick.  (Mass.) 
350,  20  Am.  Dec.  481  ; -1  Purr.  414;  who  must 
subscribe  their  names  attesting  in  the  pres- 
ence of  the  testator;  Bdelen  v.  Hartley's  Les- 
see, 7  Harr.  &  J.  (Md.)  61,  16  Am.  Dec.  292; 
Neil  v.  Neil,  1  Leigh  (Va.)  6;  1  Maule  &  S. 
294;  2  Curt.  Eccl.  320;  3  id.  118;  2  Greenl. 
Ev.  §  678;  Snider  v.  Burks,  84  Ala.  53,  4 
South.  225;  Mays  v.  Mays,  114  Mo.  536,  21 
S.  W.  921.  And  see  Nickerson  v.  Buck,  12 
Cush.  (Mass.)  342;  1  Yes.  Ch.  11;  2  Washb. 
R.  P.  682 ;  but  be  need  not  sign  in  their  pres- 
ence; Stirling  v.  Stirling,  64  Md.  138,  21  Atl. 
273;  Simmons  v.  Leonard,  91  Tenn.  183,  18 
S.  W.  280,  30  Am.  St.  Rep.  875.  The  term 
"presence"  in  a  statute  requiring  the  sub- 
scription of  witnesses  to  a  will  to  be  made 
in  the  presence  of  the  testator,  means  "con- 
scious presence ;"  Tucker  v.  Sandidge,  85  Va. 
546,  8  S.  E.  650. 

In  some  states  three  witnesses  are  requir- 
ed to  wills  devising  lands;  in  the  majority 
of  states  only  two.  In  Pennsylvania  no  at- 
testing witnesses  are  required  except  in  wills 
making  gifts  to  charity,  where  two  credible 
witnesses,  not  interested  in  the  charity,  are 
required. 

A  person  may  attest  a  will  by  making  his 
mark,  although  the  person  who  writes  his 
name  fails  to  sign  his  own  name  as  a  witness 
to  the  mark ;  Davis  v.  Semmes,  51  Ark.  4S, 
9  S.  W.  434.  Persons  signing  as  witnesses 
must  do  so  after  the  testator  has  signed  the 
will ;  Brooks  v.  Woodson,  87  Ga.  379,  13  S. 
E.  712,  14  L.  R.  A.  160.  If  a  will  is  signed 
by  only  two  witnesses  where  three  are  re- 
quired as  to  realty,  it  is  inoperative  as  to 
the  realty  but  valid  as  to  the  personalty; 
Hays   v.   Ernest,   32   Fla.   18,  13   South.  451. 

ATTESTATION  CLAUSE.  That  clause 
wherein  the  witnesses  certify  that  the  in- 
strument has  been  executed  before  them,  and 
the  manner  of  the  execution  of  the  same. 

The  usual  attestation  clause  to  a  will  is  in  the  fol- 
lowing formula,  to-wit:  "Signed,  sealed,  published, 
and  declared  by  the  above-named  A  B,  as  and  for 
his  last  will  and  testament,  In  the  presence  of  us, 
who  have  hereunto  subscribed  our  names  as  the 
witnesses  thereto,  in  the  presence  of  the  said  testa- 
tor and  of  each  other."  That  of  deeds  is  generally 
In  these  words:  "Sealed  and  delivered  in  the  pres- 
ence of  us." 

ATTESTING  WITNESS.  One  who,  upon 
being  required  by  the  parties  to  an  instru- 
ment, signs  his  name  to  it  to  prove  it,  and 
for  the  purpose  of  identification.  3  Campb. 
232;   Jenkins  v.  Dawes,   115  Mass.  599. 

ATTESTOR.  One  who  attests  or  vouches 
for. 

ATTILE.  The  rigging  or  furniture  of  a 
ship.     Jacob,  L.  Diet 


ATTORN.     To   turn   over;    to   transfer   to 
another  money  or  goods;  to  assign  to 
particular   use  or  service.     Kennet,  Paroch. 
Antiq.   283. 

Used  of  the  part  taken  by  the  tenant  in  a  trans- 
fer of  lands;    2  Bla.  Com.  388;    Litl 
used  of  assent  to  such  a  transfer;    1   Washb.   R.   P. 
28.     The   lord  could   not  alien   his   land   without  the 
consent  of  the  tenant,   nor   could   the   t' 
without  the  consent  of  his  lord;    2  Bla.  Com 
Spence,  Eq.  Jur.  137;    1  Washb.  R.  P.  28,  n.     Attorn- 
ment is  abolished  by  various  statutes ;    1  Washb.  R. 
P.  330  ;    Wms.  R.  P.   2S8,  3C6. 

Attornment  is   the  acknowledgment  by   a 
tenant  of  a  new  landlord  on  the  alienation 
of  the  land  and  an  agreement  to  I 
tenant  of  the  purchaser;   Lindley   v.   Dakin. 
13  Ind.  388. 

The  attornment  of  a  tenant  to  a  str 
Without  consent  of  the  landlord  is  void  ; 
Terry  v.  Terry,  66  S.  W.  1024,  23  Ky.  L. 
Rep.  2242;  Blauchard  v.  Tyler.  12  Mich.  339, 
86  Am.  Dec.  57;  Perkins  v.  Potts,  53  Neb. 
444,  73  N.  W.  93ft 

The  doctrine  of  attornment  grew  out  of 
the  peculiar  relations  existing  between  the 
landlord  and  his  tenant  under  the  feudal 
law,  and  the  reasons  for  the  rule  never  had 
any  existence  in  this  country,  and  is  incon- 
sistent with  our  laws,  customs  and  institu- 
tions. Beyond  its  application  to  estop  a  ten- 
ant from  denying  the  title  of  his  landlord, 
it  can  serve  but  little,  if  any.  useful  pur- 
pose; Perrin  v.  Lepper,  34  Mich. 

Recognition  by  the  tenant  of  the  assignee 
of  the  landlord  and  payment  of  rent  to  him 
are  a  sufficient  attornment ;  Bradley  4  Co.  v. 
Coal  Co.,  99  111.  App.  427;  Cummli 
Smith,  114  111.  App.  35;  and  so  is  ta 
lease  from  the  landlord's  grant  e,  _  od  from 
the  beginning  of  accumulations  of  rent  in 
arrear;  Pelton  v.  Place,  71  Yt  430,  4<:>  Atl. 
63. 

A   conveyance  of    the   leased   land    i 
to  the  purchaser  the  right  to  collect  the  rent, 
and  the  tenant  cannot  prevent  it  by  refusing 
to    attorn    to    him;     Edwards    v.    Clai 
Mich.   246,   47   N.    W.   112,   10  L.  R.     \.   659; 
nor  can  the  tenant  dispute  his  landlord's  ti- 
tle  and   attorn   to   another   while    in    p 
sion  under  the  lease,  and  if  he  desires,  after 
his    term    expires,   to   contest   his    landlord's 
title,  he  must  first  surrender  the  posa 
to   him;   McDowell   v.   Sutlive.   7s   6a.    142,  2 
S.  E.  937;  Grizzard  v.  Roberts.  110  Ga.  41,  35 
S.   E.  291;   Stover  v.  Davis.  57  W.    Va.    198, 
49  S.  E.  1023. 

Attornment  is  not  necessary  to  entitle  an 
assignee  of  the  landlord  to  demand  paj 
of  the  rent  and  to  dispossess  the  tenant; 
Wetterer  v.  Soubirous,  22  Misc.  739,  49  X. 
Y.  Supp.  1043;  Willis  v.  llarrell,  lis  Ga.  90S, 
45  S.  K.  T'.U.  Where  there  is  a  statute  au- 
thorizing summary  proceedings  by  the  as- 
signee, etc.,  of  the  landlord,  the  latter  cannot 
maintain  them  after  a  conveyance  of  the  de- 
tnised  premises;  Boyd  v.  Sametz,  17  Misc. 
728,  40  N.  Y.  Supp.  1070;  but  such  proceed- 


ATTORN 


2812 


ATTORNEY 


ings  may  be  instituted  against  the  tenant  of 
his  grantor  by  the  grantee  of  the  landlord; 
Doner  v.  Ingram,  119  Mo.  App.  156,  95  S. 
W.  983;  Small  v.  Clark,  97  Me.  304,  54 
Atl.  75S;  or  by  an  assignee  of  the  lease; 
Drew  v.  Mosbarger,  104  111.  App.  635.  It 
has  been  held  that  the  action  in  such  cases 
could  not  be  brought  by  the  purchaser  in  his 
own  name,  but  in  the  name  of  the  vendor 
for  his  use ;  Cooper  v.  Gambill,  146  Ala.  184, 
40  South.  827;  and  also  that  a  tenant  may 
resist  a  warrant  for  forcible  detainer  brought 
by  one  under  whom  he  did  not  enter;  Gray 
\.  Gray.  3  Litt.   (Ky.)   468. 

To  transfer  services  or  homage. 
Used  of  a  lord's  transferring  the  homage  and  serv- 
ice of  his  tenant  to  a  new   lord.     Bract.   81,  82;    1 
Sullivan,  Lect.  227. 

ATT0RNAT0  FACIENDO  VEL  RECIPI- 
ENO0.  A  writ  to  command  a  sheriff  or 
steward  of  a  county  court  or  hundred  court 
to  receive  and  admit  an  attorney  to  appear 
for  the  person  that  owes  suit  of  court.  Fitz. 
N.  B.  349. 

ATTORNEY.  One  put  in  the  place,  turn, 
or  stead  of  another,  to  manage  his  affairs; 
one  who  manages  the  affairs  of  another  by 
direction  of  his  principal.  Spelman,  Gloss.; 
Tennes  de  la  Ley. 

One  who  acts  for  another  by  virtue  of  an 
appointment  by  the  latter.  Attorneys  are 
of  various  kinds. 

Attorney  in  fact.  A  person  to  whom  the 
authority  of  another,  who  is  called  the  con- 
stituent, is  by  him  lawfully  delegated. 

This  term  is  employed  to  designate  persons  who 
act  under  a  special  agency,  or  a  special  letter  of  at- 
torney, so  that  they  are  appointed  in  factum,  for 
the  deed,  or  special  act  to  be  performed  ;  but  in  a 
more  extended  sense  it  includes  all  other  agents 
employed  in  any  business,  or  to  do  any  act  or  acts 
in  pais  for  another.  Bacon,  Abr.  Attorney;  Story, 
Ag.   §  25. 

All  persons  who  are  capable  of  acting  for 
themselves,  and  even  those  who  are  disquali- 
fied from  acting  in  their  own  capacity,  if 
they  have  sufficient  understanding,  as  in- 
fants of  a  proper  age,  and  femes  coverts, 
may  act  as  attorneys  of  others ;  Co.  Litt. 
52  o;  1  Esp.  142;  2  id.  511. 

Attorney-at-law.  An  officer  in  a  court  of 
justice  who  is  employed  by  a  party  in  a 
cause  to  manage  the  same  for  him. 

Appearance  by  an  attorney,  on  behalf  of  his  cli- 
ent, has  been  allowed  in  England  from  the  time  of 
the  earliest  records  of  the  courts  of  that  country. 
They  are  mentioned  in  Glanville,  Bracton,  Fleta, 
and  Britton;  and  a  case  turning  upon  the  party's 
right  to  appear  by  attorney  is  reported;  Y.  B.  17 
Edw.  III.  p.  8,  case  23.  In  France  such  appearances 
were  first  allowed  by  letters  patent  of  Philip  le 
Bel.  A.  d.  1290  ;  1  Fournel,  Hist.  des.  avocats,  42,  92; 
2  Loizel.  Coutumes  14.  It  results  from  the  nature 
of  their  functions,  and  of  their  duties,  as  well  to 
the  court  as  to  the  client,  that  no  one  can,  even  by 
consent,  be  the  attorney  of  both  the  litigating  par- 
ties in  the  same  controversy ;  Farr.  47.  The  name 
of  attorney  has  commonly  been  applied  in  this  coun- 
try to  those  who  practise  in  courts  of  common  law; 
solicitors,  in  courts  of  equity;  and  proctors,  in 
courts  of  admiralty. 


The  two  branches  of  the  legal  profession 
were  distinguished  by  Lord  Brougham  in 
The  Serjeant's  Case  in  1839 :  "If  you  appear 
by  attorney,  he  represents  you,  but  where 
you  have  the  assistance  of  an  advocate  you 

are    present Appearance    by    an 

attorney  is  one  thing,  but  admitting  advo- 
cates to  plead  the  cause  of  another  is  a  to- 
tally different  proceeding."  The  case  is  re- 
ported in  Manning's  Serviens  ad  Legem. 

As  a  general  rule  the  eligibility  of  persons 
to  hold  the  office  of  attorney-at-law  is  settled 
by  local  legislation  or  by  rule  of  court. 

The  admission  of  attorneys  to  practise  and 
their  powers,  duties  and  privileges  are  prop- 
er subjects  of  legislative  control  to  the  same 
extent  and  subject  to  the  same  limitations, 
as  in  the  case  of  any  other  profession  or 
business ;  Cook .  v.  De  La  Guerra,  24  Cal. 
241;  In  re  Cooper,  22  N.  Y.  67.  In  Robin- 
son's Case,  131  Mass.  376,  41  Am.  Rep.  239, 
this  was  recognized  where  a  woman  applied 
for  admission  and  was  rejected  because  the 
statute  had  not  so  provided,  and  it  was  said 
that  the  duty  of  the  courts  is  limited  to  de- 
claring the  law  as  it  is;  and  whether  any 
change  would  be  expedient  is  a  legislative 
question.  In  In  re  Applicants  for  License, 
143  N.  C.  1,  55  S.  E.  635,  10  L.  R.  A.  (N.  S.) 
288,  10  Ann.  Cas.  187,  a  statute  provided  that 
persons  possessing  certain  qualifications 
should  be  admitted  to  the  practise  of  the 
law.  One  of  these  was  that  such  applicant 
should  file  with  the  clerk  of  the  court  a  cer- 
tificate of  good  moral  character  signed  by 
two  attorneys  of  the  court.  Protests  against 
the  admission  of  three  applicants  were  filed 
on  the  ground  that  they  were  not  of  good 
moral  character,  and  it  was  held  that  when 
a  statute  has  prescribed  the  qualifications 
for  admission,  and  an  applicant  is  shown  to 
possess  these  qualifications,  the  courts  must 
admit  him.  It  was  urged  that  this  statute 
impaired  the  inherent  right  of  the  court  to 
control  its  officers,  but  the  court,  quoting 
from  a  dissenting  opinion  in  an  Illinois  case 
infra,  said  that  if  this  is  one  of  the  inherent 
powers  of  a  court,  it  is  just  as  inherent  in 
one  court  as  another,  and  so  it  might  come 
about  that  the  judges  of  the  supreme  court 
and  each  of  the  judges  of  the  superior  courts 
might  require  widely  different  qualifications. 

The  Illinois  case  is  directly  opposed  to 
this,  and  holds  that  the  function  of  determin- 
ing whether  an  applicant  is  sufficiently  ac- 
quainted with  the  law  pertains  to  the  courts 
themselves.  An  act  providing  that  persons 
having  certificates  of  graduation  from  law 
schools  of  a  certain  specified  standard  should 
be  admitted  to  practise  law  was  held  to  be 
an  unconstitutional  encroachment  upon  the 
judicial  branch  of  the  government;  In  re 
Day,  181  111.  73,  54  N.  E.  646,  50  L.  R.  A. 
519;  and  to  the  same  effect,  In  re  Branch, 
70  N.  J.  L.  537,  57  Atl.  431 ;  In  re  Mosness, 
39  Wis.  509,  20  Am.  Rep.  55,  where  a  stat- 


ATTORNEY 


283 


ATTOi 


ute  was  held  Invalid  which  authorized  the 
admission  of  a  non-resident.  See  13  Harv. 
L.  Rev.  233,  where  it  is  said,  "The  legisla- 
ture certainly  has  no  positive  power  to  com- 
pel the  courts  to  admit  persons  to  practice 
before  them,"  although  admitting  a  limited 
control  to  prevent  the  admission  of  unsuita- 
ble persons.  And  a  Pennsylvania  case  com- 
menting on  an  act  providing  that  the  court 
shall  admit  attorneys  in  specified  cases  says, 
"We  are  clearly  of  the  opinion  that  the  Act 
of  1S87,  though  probably  oot  so  intended,  is 
an  encroachment  upon  the  judiciary  depart- 
ment of  the  government;"  Petition  of  Splane, 
123  Pa.  527,  1G  Atl.  481. 

It  has  been  held  that,  excepting  where 
permitted  by  special  statute,  women  cannot 
act  as  attorneys-at-law  in  tbe  various  slates; 
In  re  Bradwell,  55  ill.  535;  Bradwell  v.  Illi- 
nois, 16  Wall.  (U.  S.)  130,  21  L.  Ed.  442; 
and  the  supreme  court  of  the  United  States 
will  not  issue  a  mandamus  to  compel  a  state 
court  to  admit  a  woman  to  practise  law  be- 
fore such  court,  upon  the  ground  that  she 
has  been  denied  a  privilege  or  immunity  bo- 
longing  to  her  as  a  citizen  of  the  United 
States,  in  contravention  of  the  constitution ; 
In  re  Lockwood,  154  U.  S.  116,  14  Sup.  Ct. 
1082,  38  L.  Ed.  920 ;  the  right  to  practise  law 
in  a  state  court  not  being  such  privilege  or 
immunity;  Bradwell  v.  Illinois,  16  Wall.  (U. 
S.)  130,  21  L.  Ed.  442;  but  the  general  trend 
of  authority  now  is  that  women  may  be  ad- 
mitted to  practise  as  attorneys ;  In  re  Leach, 
134  Ind.  665,  34  N.  E.  641,  21  L.  R.  A.  701 ; 
Ricker's  Petition,  66  X.  H.  207,  29  Atl.  559, 
24  L.  R.  A.  740;  Richardson's  Case,  3  D.  R. 
(Pa.)  299.  Any  woman  of  good  standing  at 
the  bar  of  the  supreme  court  of  any  state  or 
territory  or  of  the  District  of  Columbia  Cor 
three  years,  and  of  good  moral  character, 
may  become  a  member  of  the  bar  of  the  su- 
preme court  of  the  U.  S. ;  Act  Feb.  15,  1879. 
In  North  Carolina,  unnaturalized  foreigners 
cannot  be  licensed  as  attorneys;  Ex  parte 
Thompson,  10  N.  C.  355;  Weeks,  Att  at  Law, 
79,  note. 

The  business  of  attorneys  is  to  carry  on 
the  practical  and  formal  parts  of  the  suit; 
1  Kent  307.  See,  as  to  their  powers,  2  Supp. 
to  Ves.  Jr.  241,  254;  3  Chit.  Bla.  Com.  23, 
338;  Bacon,  Abr.  Attorney;  Lynch  v.  Com., 
16  S.  &  R.  (Pa.)  368,  16  Am.  Dec.  582;  Hus- 
ton v.  Mitchell,  14  S.  &  R.  (Pa.)  307,  16  Am. 
Dee.  506;  Holker  v.  Parker,  7  Cra.  (U.  S.) 
452,  3  L  Ed.  396. 

The  presumption  is  that  an  attorney  has 
authority  to  appear;  if  the  person  be  ap- 
pears for  does  not  disclaim  his  authority,  be 
is  bound;  Bacon  v.  Mitchell,  14  N.  D.  -lob 
106  N.  W.  129,  4  L.  R.  A.  (N.  S.)  244;  Inter- 
national Harvester  Co.  of  America  v.  Champ- 
lin,  155  App.  Div.  847,  140  N.  Y.  Supp.  842. 

The  authority  of  an  attorney  commences 
with  his  retainer ;  Stone  v.  Bank,  174  U.  S. 
413,  19  Sup.  Ct.  747,  43  L.  Ed.  1028;  while 
acting  generally  for  a  client  he  canuot  ac- 


cept   service    without    authority;     Reed    v. 
Reed,  19   S.   C.  54S.     After  be  has  been   re- 
tained in  a  case,  he  has  certain  Implied 
ers  therein:    Stone  v.  Bank,  174  I".  S.  113,  IS 
Sup.  Ct.  717,  43  L.  Ed.  1028.     In  suits  actual- 

ding,  he  may  agree  that  one  suit 
abide  the  event  of  another  suit  :  <  ililp: 
Farwell,  71  la.  231,  32  N.  W.  U77  ;  "iiliuore 
Co.,  67  Cai.  366,  7  Pac.  781  Be 
Untie  an  action;  Barrett  v.  i:.  Co.,  43 
x.  Y.  628;  Simpson  v.  Brown,  l  Wash.  Terr. 
248.  In  Rhutasel  v.  Rule.  37  la.  20,  '■>■'.  N.  YV. 
1013,  it  was  held  that  the  authority  to  dis- 
miss must  be  specially  conferr<  d  ;  contra, 
Bacon  v.  Mitchell,  14  N.  D.  154.  106  N.  W. 
1U!>.  4  L.  R.  A.  (X.  S.)  244.  He  may,  where 
a  pending  case  has  been  referred  to  arbi- 
trators, agree  to  the  submission  of  all  mat- 
ters in  eontrover.-y,  Including  those  not  em- 
braced in  the  case;  Bingham's  Trustees  v. 
Guthrie,  19  Pa.  418. 

In  general,  the  agreement  of  an  attorney- 
at-law,  within  the  scope  of  his  employment, 
binds  his  client ;  1  Salk.  86 ;  as,  to  amend 
the  record;  Johnson  v.  Chaffant,  1  Linn. 
(Pa.)  75;  to  refer  a  cause;  Holker  v.  Park- 
er, 7  Cra.  (U.  S.i  i:;.;.  3  l.  im.  396;  3  Taunt. 
4S6 ;  not  to  sue  out  a  writ  of  error ;  1  H. 
Bla.  21,  23;  2  Saund.  71a,  b:  1  Term  388; 
to  strike  off  a  non  pros.;  Reinholdt  v.  Albert!, 
1  P.inn.  (Pa.)  409 ;  to  waive  a  judgment  by  de- 
fault ;  1  Archli.  Pr.  26 ;  or  waive  a  jury  trial ; 
Stevenson  v.  Felton,  99  X.  0.  58,  5  S.  B.  :;'.<'.». 
But  the  act  must  be  within  the  scope  of  his 
authority.  He  cannot,  for  example,  without 
special  authority,  purchase  lands  for  the  cli- 
ent at  sheriff's  sale;  Pearson  v.  Men: -on,  2 
S.  &  R.  (Pa.)  21;  Beardsley  v.  poet.  11  .Tohns. 
(X.  Y.)  464,  6  Am.  Dec.  3S6 ;  or  extend  the 
time  for  payment  of  money  to  release  a  judg- 
ment in  ejectment,  entered  by  consent:  Beat- 
ty  v.  Hamilton,  127  Pa.  71.  17  Atl.  751 
compromise  a  claim ;  Broekley  v.  Broekley, 
122  Pa.  1,  15  Atl.  646;  Willard  v.  Gas-Fixture 
Co.,  47  Mo.  App.  1;  U.  S.  v.  Beebe,  180  0. 
S.  343,  21  Sup.  Ct.  371,  45  L.  Ed.  663;  con- 
tra, Beliveau  v.  Mfg.  Co.,  68  X.  II.  225,  40 
Atl.  734,  44  L.  R.  A.  167,  73  Am.  St.  Rep. 
577;  or  satisfy  a  judgment  for  less  than  is 
due;  Peters  v.  Lawson,  66  Tex.  336,  17  S. 
W.   734. 

In  the  absence  of  fraud,  the  client  is  con- 
cluded by  the  acts,  and  even  by  the  omissions, 
of  his  attorney;  Rogers  v.  Greenwood,  14 
Minn.  33::  (Gil.  256);  Sampson  v.  Ohleyer, 
22  Cal.  200;   Weeks.  Att.  at  Law  375. 

The  mistake  or  unskillfulness  of  the  at- 
torney is  not  enough  to  authorize  an  injunc- 
tion to  restrain  the  enforcement  of  a  judg- 
ment; Donovan  v.  Miller,  12  Idaho  ft 
Pac.  82.  9  L.  R.  A.  (X.  S.i  524,  10  Ann.  Cas. 
444;     Hambrick   v.   Crawford,   55   Ga. 

v.  Hamilton.  132  Ind.  406,  31  X.  D. 
1117;  Payton  v.  MDcQuown,  1)7  Ky.  7:>7.  ::i  s. 
W.  874,  53  Am.  St.  Rep.  137.  and  31  L.  R.  A. 
33,  where  the  cases  are  collected  in  a  note. 
Nor  is  the  mistake  of  counsel  upon  a  point  of 


ATTORNEY 


284 


ATTORNEY 


law  ground  for  a  new  trial ;  Patterson  v.  Mat- 
thews, 3  Bibb  (Ky.)  SO.  Relief,  however,  has 
been  granted  on  this  ground,  notably  in 
Sharp  v.  New  York,  31  Barb.  (N.  Y.)  578, 
which  with  an  early  case  in  Tennessee  is 
criticized  as  deciding  "with  a  spirit  of  hu- 
manity but  with  little  regard  for  the  settled 
principles  of  law" ;   Black,  Judg.  sec.  375. 

In  general,  he  has  all  the  powers  exercised 
by  the  usages  of  the  court  in  which  the  suit 
is  pending;    Weeks,  Att.  at  Law  374. 

The  principal  duties  of  an  attorney  are 
— to  be  true  to  the  court  and  to  his  client; 
to  manage  the  business  of  his  client  with 
care,  skill,  and  integrity;  4  Burr.  2061;  1 
B.  &  Aid.  202;  2  Wils.  325;  1  Bingh.  347; 
Mech.  Ag.  824;  to  keep  his  client  informed 
as  to  the  state  of  his  business;  to  keep  his 
secrets  confided  to  him  as  such.  And  he  is 
privileged  from  disclosing  such  secrets  when 
called  as  a  witness;  Alderman  v.  People,  4 
Mich.  414,  69  Am.  Dec.  321 ;  Sibley  v.  Waf- 
fle, 16  N.  Y.  180;  Martin  v.  Anderson,  21  Ga. 
301 ;  40  E.  L.  &  Eq.  353 ;  Sargent  v.  Inhab- 
itants of  Hampden,  38  Me.  581.  See  Cli- 
ent; Confidential  Communications.  His 
first  duty  is  the  administration  of  justice, 
and  his  duty  to  his  client  is  subordinate  to 
that;  In  re  Thomas,  36  Fed.  242.  If  an  at- 
torney while  employed  by  one  side  secretly 
seeks  employment  on  the  other  side,  promis- 
ing to  give  information  acquired  during  such 
employment,  he  will  be  disbarred;  U.  S.  v. 
Costen,  38  Fed.  24;  but  an  attorney  who 
learns  from  his  client,  in  a  professional  con- 
sultation, or  in  any  other  manner,  that  the 
latter  intends  to  commit  a  crime,  it  seems  is 
bound  by  a  higher  duty  to  society  and  to  the 
party  to  be  affected  to  disclose  it;  State  v. 
Barrows,  52  Conn.  323. 

In  estimating  the  value  of  services  render- 
ed by  an  attorney  it  is  proper  to  take  into 
account  the  time  necessarily  employed  in  and 
the  success  of  the  litigation ;  Berry  v.  Davis, 
34  la.  594 ;  the  amount  of  values  involved ; 
Smith  v.  R.  Co.,  60  la.  515,  15  N.  W.  303; 
and  recovered;  Parsons  v.  Hawley,  92  la. 
175,  60  N.  W.  520;  the  ability,  learning  and 
experience  of  the  attorney  and  his  standing 
in  the  profession;  Clark  v.  Ellsworth,  104 
la.  442,  73  N.  W.  1023;  the  character  of  the 
claim  and  the  amount  of  the  services  to  be 
rendered;  Morehouse  v.  R.  Co.,  185  N.  Y. 
520,  78  N.  E.  179,  7  Ann.  Cas.  377. 

An  attorney's  contract  with  his  client  for 
a  fifty  per  cent  contingent  fee  is  not  nec- 
essarily unenforceable  on  the  ground  of  be- 
ing unconscionable;  In  re  Fitzsimons,  174 
N.  Y.  15,  66  N.  E.  554,  but  see  to  the  con- 
trary, 48  Ohio  L.  Bui.  238,  discussing  Hermon 
v.  R.  Co.,  121  Fed.  184;  Muller  v.  Kelly,  125 
Fed.  212,  60  C.  C.  A.  170.  These  cases  were 
not  decided  on  the  ground  of  champerty, 
but  of  taking  improper  advantage  of  the 
fiduciary  relation.  Fifty  per  cent,  of  the 
claim  was  held  not  to  be  extortionate  in  a 
difficult  and  complicated  case,  "where  the  at- 


torney exercised  no  influence  in  adjusting 
the  amount,  but  it  was  voluntarily  offered, 
and  where  he  had  paid  out  of  it  large 
amounts  to  other  counsel ;  Taylor  v.  Bemiss, 
110  U.  S.  42,  3  Sup.  Ct.  441,  28  L.  Ed.  64. 

Where  an  attorney  had  agreed  to  prosecute 
an  action  for  a  contingent  fee  of  one-half  the 
amount  recovered,  it  was  held  that  the  client 
could  maintain  an  action  against  the  attor- 
ney for  the  whole  amount  so  recovered  less 
the  costs  paid  by  the  attorney ;  Ackert  v. 
Barker,  131  Mass.  436.     See  Champerty. 

A  contract  for  a  contingent  fee  does  not 
deprive  the  client  of  the  right  to  substitute 
another  attorney ;  Johnson  v.  Ravitch,  113 
App.  Div.  810,  99  N.  Y.  Supp.  1059. 

Any  agreement  conditioned  on  obtaining  a 
divorce  or  intended  or  calculated  to  facili- 
tate its  obtainment  is  void ;  Barngrover  v. 
Pettigrew,  128  la.  533,  104  N.  W.  904,  2  L. 
R.  A.  (N.  S.)  260,  111  Am.  St.  Rep.  206, 
where  the  contract  was  to  procure  evidence 
to  obtain  a  divorce.  The  parties  to  the  di- 
vorce suit  compromised  and  settled  their  dif- 
ferences and  the  attorney  sued  to  recover  on 
the  contract  It  was  held  that  he  could  not 
recover  on  a  quantum  meruit  because  the 
services  rendered  were  in  themselves  illegal. 

A  provision  of  a  trust  mortgage  deed  that 
in  case  of  its  sale  an  attorney's  fee  of  five 
per  cent,  should  be  paid  out  of  the  proceeds 
was  held  void  as  against  public  policy  though 
the  fee  was  reasonable ;  Turner  v.  Boger, 
126  N.  C.  300,  35  S.  E.  592,  49  L.  R.  A.  590. 

A  contract  between  a  wife  and  her  so- 
licitor providing  that  for  his  services  in  pro- 
curing an  allowance  of  alimony  and  enforc- 
ing its  payment  he  shall  receive  a  share  of 
the  alimony  recovered  is  void,  not  only  be- 
cause the  claim  for  alimony  is  incapable  of 
assignment,  but  also  because  the  contract  is 
against  public  policy;  Lynde  v.  Lynde,  64 
N.  J.  Eq.  736,  52  Atl.  694,  58  L.  R.  A.  471, 
97  Am.  St.  Rep.  692.  Here  the  Court  of 
Chancery  took  jurisdiction  over  the  solicitor 
as  an  officer  of  the  court,  in  order  to  require 
him  to  do  justice  to  his  client. 

Any  contract  whereby  a  client  is  prevent- 
ed from  settling  or  discontinuing  a  suit  is 
void,  as  such  an  agreement  would  encourage 
litigation;  Kansas  City  Elevated  R.  Co.  v. 
Service,  74  Kan.  316,  94  Pac.  262,  14  L.  R.  A. 
(N.  S.)  1105 ;  Huber  v.  Johnson,  68  Minn.  74, 
70  N.  W.  806,  64  Am.  St.  Rep.  456;  Board- 
man  v.  Thompson,  25  la.  487;  Weller  v.  R. 
Co.,  68  N.  J.  Eq.  659,  61  Atl.  459,  6  Ann. 
Cas.  442;  Davis  v.  Chase,  159  Ind.  242,  64 
N.  E.  88,  853,  95  Am.  St.  Rep.  294;  North 
Chicago  St.  R.  Co.  v.  Ackley,  171  111.  100,  49 
N.  E.  222,  44  L.  R.  A.  177 ;  Davis  v.  Webber, 
66  Ark.  190,  49  S.  W.  822',  45  L.  R.  A.  196, 
74  Am.  St.  Rep.  81 ;  In  re  Snyder,  190  N.  Y. 
66,  82  N.  E.  742,  14  L.  R.  A.  (N.  S.)  1101,  123 
Am.  St  Rep.  533,  13  Ann.  Cas.  441 ;  Davy  v. 
Ins.  Co.,  78  Ohio  St.  256,  85  N.  E.  504,  17  L. 
R.  A.  (N.  S.)  443,  125  Am.  St.  Rep.  694. 

But  courts  have  an  inherent  power  to  pro- 


ATTORNEY 


285 


RNEY 


tect  attorneys  against  settlements  consum- 
mated with  the  express  purpose  of  depriv- 
ing them  of  their  compensation;  Potter  v. 
Min.  Co.,  19  Utah  421,  57  Pac.  270 ;  Jones  v. 
Morgan,  39  Ga.  310,  99  Am.  Dec.  45S ;  Jack- 
son v.  Stearns,  48  Or.  25,  84  Pac.  79S,  5  L. 
R.  A.  (N.  S.)  ::00.  The  attorney  may  proceed 
in  the  original  suit  in  the  name  of  his  client 
notwithstanding  the  settlement;  Randall  v. 
Van  Wagenen,  115  N.  Y.  627,  22  N.  B.  361, 
12  Am.  St  Rep.  828.  But  this  rule  applies 
only  when  the  attorney  has  acquired  a  lien; 
Weicher  v.  Cargill,  86  -Minn.  271,  90  N.  W. 
402 ;  and  it  is  said  that  there  are  serious 
practical  difficulties  in  the  way  of  such  a  pro- 
cedure when  the  action  is  to  recover  unliq- 
uidated damages.  The  power  to  arrest  or 
rescind  the  effect  of  a  settlement  is  cautious- 
ly exercised  in  respect  to  suits  for  debts  ac- 
tually owing ;  and  the  power  would  be  more 
cautiously  applied  to  actions  for  torts,  where 
it  would  be  impracticable  for  the  court,  upon 
the  opposing  representations  of  the  parties 
and  without  hearing  the  proof,  to  ascertain 
whether  there  was  a  just  cause  of  action  or 
whether  there  was  ground  to  distrust  the 
justice  of  the  settlement.  The  whole  case 
would  have  to  be  tried  before  the  court  could 
pronounce  that  the  suit  was  properly  insti- 
tuted, and  that  it  afforded  prima  facie 
ground  for  the  award  of  costs ;  Boogren  v. 
R.  Co.,  97  Minn.  51,  106  N.  W.  104,  3  L.  R.  A. 
(N.  S.)  379,  114  Am.  St.  Rep.  691,  where  the 
court  adopting  the  language  of  Betts,  J.,  in 
Peterson  v.  Watson,  1  Blatchf.  &  H.  487,  Fed. 
Cas.  No.  11,037,  concludes:  "That  manifestly 
could  never  be  done  without  serious  incon- 
venience and  expense ;  and  the  better  prac- 
tical rule  will  doubtless  be  to  leave  the  proc- 
tor to  look  to  the  responsibility  of  his  client 
alone.  Ordinarily  he  will  take  the  precau- 
tion to  secure  himself  against  the  mischanc- 
es of  suits  of  this  character ;  and  if  he  does 
not,  no  urgent  equity  is  thereby  created  for 
an  extraordinary  interference  on  his  behalf 
by  the  court."  This  practice  may  occasional- 
ly work  a  hardship  to  the  attorneys,  but  it 
is  nevertheless  a  salutary  rule. 

As  to  the  right  of  the  attorney  to  recover 
under  statutes  giving  him  a  lien,  where  his 
client  has  settled  without  his  knowledge,  see 
Lien. 

For  a  violation  of  his  duties  an  action  will. 
In  general,  lie;  Cavillaud  v.  Yale,  3  Cal.  108, 
58  Am.  Dec.  3S8 ;  2  Greenl.  Ev.  §§  145,  140; 
and  in  some  cases  he  may  be  punished  by 
attachment.  Official  misconduct  may  be  in- 
quired into  in  a  summary  manner,  and  the 
name  of  the  offender  stricken  from  the  roll; 
Rice  v.  Com.,  18  B.  Monr.  (Ky.)  472;  Bradley 
v.  Fisher,  13  Wall.  (U.  S.)  335,  20  L.  Ed.  646 ; 
17  Am.  Dec.  194  note.  See  Ex  parte  Gar- 
land, 4  Wall.  (U.  S.)  333,  18  L  Ed.  366 ;  Dis- 
bar. 

,  It  is  held  that  to  solicit  causes  of  action 
tends  to  promote  litigation  and  to  degrade 


the  profession  and  that  a  contract  so  ob- 
tained is  invalid;  [ngersoll  v.  Coal  Co.,  117 
Tenn.  .  9  l.  r. 

L9  Am.  St  Rep.  10 
where    the   plaintiffs,    a 
solicited   a   large  number  of  1 
Bona]  injuries  and  brought  BUi 

[ants  compromised  with  the  claimants 
without  the  consent  of  the  atto  ad  the 

latter  sued  the  defendants  for  the  lees  prom- 
l»y  the  claimants. 
An  attorney  who  enters  into  a  barratrous 
contract  to  bring  suits  cannot  recover  upon 
an  implied  contract  for  services  rendered  la 
a  suit  brought  pursuant  to  Bucb 
though  the  services  are  not,  in  then 
and  apart  from  the  barratrous  contract  im- 
proper or  illegal;  Gammons  v.  Johnson,  76 
Minn.  76,  78  N.  W.  L035;  Gammons  v. 
branson,  78  Minn.  21,  SO  N.  YV.  779.  A  con- 
tract whereby  an  attorney  agrees  to  pay  for 
business  brought  to  him  is  void;  Alpers  v. 
Hunt,  S6  Cal.  78,  24  Pac.  S46,  9  L.  R.  A.  183, 
21  Am.  St.  Rep.  17;  but  this  decision  was 
under  a  statute  providing  for  the  disbarment 
of  attorneys  who  lent  their  names  to  be  used 
in  legal  proceedings  by  persons  who  were 
not  attorneys.  That  case  was  followed  in 
Langdon  v.  Conlin,  67  Neb.  24::.  93  N.  W 
60  L.  R.  A.  429,  108  Am.  St.  Rep.  643,  2  Ann. 
Cas.  834,  where  the  facts  were  similar  and 
the  statute  declared  the  rights  and  dut 
attorneys.  That  such  contracts  are  void  as 
against  public  policy  and  good  morals  is  held 
in  Lyon  v.  Hussey,  82  Hun  15,  31  N.  Y. 
Supp.  281;  Burt  v.  Place,  6  Cow.  (N.  Y.)  431, 
where  a  statute  prohibits  the  promise  of  a 
valuable  consideration  to  any  person  as  an 
inducement  to  placing  a  claim  in  the  hands 
of  an  attorney.  An  attorney  was  held  to  be 
prohibited  from  paying  or  agreeing  to  pay  a 
layman  for  inducing  a  client  to  place  his 
claim  in  the  attorney's  hands;  In  re  Clark, 
184  N.  Y.  222,  77  N.  E.  1,  affirming  10S  App. 
Div.  150,  95  N.  Y.  Supp.  3SS.  But  see  to  the 
contrary;  Vocke  v.  Peters,  58  111.  App 
where  an  agreement  by  attorneys  to  pay  a 
commission  for  all  business  brought  to  them 
was  held  not  contrary  to  public  policy;  and 
to  the  same  effect,  Dunne  v.  Herrick,  37  111. 
App.  ISO,  where  an  attorney's  clerk  solicited 
business  for  him  and  a  contract  between  at- 
torney and  client  to  pay  the  attorney  one- 
half  the  amount  recovered  in  a  suit  for  per- 
sonal injuries  was  held  valid  and  bindii 
the  client. 

The  execution  and  delivery  by  an  attorney 
at  law  of  a  power  of  attorney  to  sign  bis 
name  to  any  and  all  letters  of  collection  and 
other  business  of  the  corporation  as  long  as 
the  attorney  in  fact  should  remain  in  the 
employ  of  the  corporation,  is  unprofessional 
conduct  requiring  discipline;  In  re  Roths- 
child, 140  App.  Dlv.  583,  126  N.  Y.  Supp.  629, 
where,  as  the  offence  had  never  been  passed 
upon  by  the  court,  the  attorney  was  suspend- 


ATTORNEY 


2S6 


ATTORNEY-GENERAL 


ed  from  practice  for  one  year  with  leave  to 
apply  for  reinstatement  on  satisfactory  proof 
of  his  conduct  meanwhile. 

An  attorney  is  not  an  insurer  of  the  result 
in  a  case  in  which  he  is  employed,  and  only 
ordinary  care  and  diligence  can  be  required 
of  him ;  Babbitt  v.  Bumpus,  73  Mich.  331,  41 
N.  W.  417,  16  Am.  St.  Rep.  585.  The  au- 
thority of  an  attorney  is  revoked  by  the 
death  of  the  client,  and  he  cannot  proceed 
further  in  the  cause  without  a  new  retainer 
from  the  proper  representative;  Prior  v. 
Kiso,  96  Mo.  303,  9  S.  W.  898 ;  Moyle  v.  Lan- 
ders, 78  Cal.  99,  20  Pac.  241,  12  Am.  St. 
Rep.  22. 

An  attorney  is  entitled  to  two  kinds  of 
liens  for  his  fees,  one  upon  the  papers  of  his 
client  in  his  possession,  called  a  retaining 
lien,  and  the  other  upon  a  judgment  or  fund 
recovered,  called  a  charging  lien ;  Goodrich 
v.  McDonald,  112  N.  Y.  157,  19  N.  E.  649; 
Sanders  v.  Seelye,  128  111.  631,  21  N.  E.  601 ; 
Strohecker  v.  Irvine,  76  Ga.  639,  2  Am.  St. 
Rep.  62.  See  Blackburn  v.  Clarke.  85  Tenn. 
506,  3  S.  W.  505 ;  Taylor  Iron  &  Steel  Co.  v. 
Higgins,  66  Hun  626,  20  N.  Y.  Supp.  746. 

"A  corporation  cannot  practice  law,  di- 
rectly or  indirectly ;"  In  re  Co-operative 
Law  Co.,  19S  N.  Y.  479,  92  N.  E.  15,  32  L.  R. 
A.  (N.  S.)  55,  139  Am.  St.  Rep.  839,  19  Ann. 
Cas.  879. 

In  all  United  States  courts  parties  may 
plead  and  manage  their  cases  personally  or 
by  counsel  as  the  rules  of  such  courts  pro- 
vide.   R.  S.  §  747. 

See  Lien;  Champerty;  Retainer;  Ethics, 
Legal;  Barrister;  Disbar;  Solicitor;  Ad- 
vocati. 

ATTORNEY'S  CERTIFICATE.  A  certifi- 
cate of  the  commissioners  of  stamps  that  the 
attorney  therein  named  has  paid  the  annual 
duty.  This  must  be  renewed  yearly;  and  the 
penalty  for  practising  without  such  certifi- 
cate is  fifty  pounds ;  Stat.  37  Geo.  III.  c.  90, 
§§  26,  28,  30.  See  also  7  &  8  Vict.  c.  73,  §§ 
21-26 ;    16  &  17  Vict.  c.  63. 

ATTORNEY-GENERAL.  A  great  officer, 
under  the  king,  created  by  letters  patent, 
whose  office  is  to  exhibit  informations  and 
prosecute  for  the  crown  in  matters  criminal ; 
to  file  bills  in  the  exchequer  in  any  matter 
concerning  the  king's  revenue.  Others  may 
bring  bills  against  the  king's  attorney;  3 
Bla.  Com.  27 ;  Termes  de  la  Ley.  He  is  usu- 
ally addressed  as  "Mr.  Attorney." 

In  each  state  there  is  an  attorney-general, 
or  similar  officer,  who  appears  for  the  state 
of  people,  as  in  England  the  attorney-gen- 
eral appears  for  the  crown. 

"The  office  is  a  public  trust,  which  involves 
the  exercise  of  an  almost  boundless  discre- 
tion by  an  officer  who  ought  to  stand  as  im- 
partial as  a  judge."  Com.  v.  Burrell,  7  Pa. 
39,  per  Gibson,  C.  J. 

ATTORNEY-GENERAL  OF  THE  UNIT- 
ED   STATES.    An  officer  appointed   by   the 


president.  His  duties  are  to  prosecute  and 
conduct  all  suits  in  the  supreme  court  in 
which  the  United  States  shall  be  concerned, 
and  give  his  advice  upon  questions  of  law 
when  required  by  the  president,  or  when 
requested  by  the  heads  of  any  of  the  depart- 
ments, touching  matters  that  concern  their 
departments;  Act  of  24th  Sept.  1789.  He  is 
a  member  of  the  cabinet  and  under  the  act 
of  congress  of  Jan.  19,  1SS6,  U.  S.  Rev.  Stat. 
1  Supp.  4S7,  is  the  fourth  in  succession,  aft- 
er the  vice-president,  to  the  office  of  presi- 
dent in  case  of  a  vacancy.  See  Department 
of  Justice;  Cabinet. 

ATTORNEY,     LETTER     OF.     See    Power 

op  Attorney. 

ATTORNEY,  WARRANT  OF.  See  War- 
rant op  Attorney. 

ATTORNMENT.     See  Attorn. 

AU   BES0IN.      (Fr.  in  case  of  need.     "Au 

besoin    chez   Messieurs   a  ."     "In 

case  of  need,  apply  to  Messrs. at "). 

A  phrase  used  in  the  direction  of  a  bill 
of  exchange,  pointing  out  the  person  to 
whom  application  may  be  made  for  payment 
in  case  of  failure  or  refusal  of  the  drawee 
to  pay ;  Story,  Bills  §  65. 

AUBAINE.     See  Droit  d'Aubaine. 

AUCTION.  A  public  sale  of  property  to 
the  highest  bidder.  See  19  Cent.  L.  J.  247; 
Bateman,  Auct. 

The  manner  of  conducting  an  auction  is  immate- 
rial, whether  it  be  by  public  outcry  or  by  any  other 
manner.  The  essential  part  is  the  selection  of  a 
purchaser  from  a  number  of  bidders.  In  a  case 
where  a  woman  continued  silent  during  the  whole 
time  of  the  sale,  but  when  any  one  bid  she  gave  him 
a  glass  of  brandy,  and,  when  the  sale  broke  up,  the 
person  who  received  the  last  glass  of  brandy  was 
taken  into  a  private  room  and  he  was  declared  to 
be  the  purchaser,  this  was  adjudged  to  be  an  auc- 
tion ;    1  Dowl.  Bailm.  115.  t 

Auctions  are  generally  conducted  by  per- 
sons licensed  for  that  purpose.  A  bidder 
may  be  employed  by  the  owner,  if  it  be  done 
bond  fide  and  to  prevent  a  sacrifice  of  the 
property  under  a  given  price;  National  Fire 
Ins.  Co.  v.  Loomis,  11  Paige  Ch.  (N.  Y.)  431; 
Veazie  v.  Williams,  3  Sto.  622,  Fed.  Cas.  No. 
16,907;  The  Raleigh,  37  Fed.  125.  It  has 
been  held  that  the  owner  should  give  fair 
notice  of  this  so  that  no  one  should  be  mis- 
led or  deceived ;  Miller  v.  Baynard,  2  Houst. 
(Del.)  559,  83  Am.  Dec.  168;  but  where  bid- 
ding is  fictitious,  and  by  combination  with 
the  owner  to  mislead  the  judgment  and  in- 
flame the  zeal  of  others,  it  would  be  a  fraud- 
ulent and  void  sale ;  Poll.  Contr.  539 ;  Veazie 
v.  Williams,  8  How.  (U.  S.)  134,  12  L.  Ed, 
1018;  id.,  3  Sto.  611,  Fed.  Cas.  No.  16,907 
Webster  v.  French,  11  111.  254;  Smith  v 
Greenlee,  13  N.  C.  126,  18  Am.  Dec.  564 
Phippen  v.  Stickney,  3  Mete.  (Mass.)  384 
Switzer  v.  Skiles,  3  Gilm.  (111.)  529,  44  Am 
Dec.  723.  But  see  2  Kent  539,  where  this 
subject  is  considered.  And  see  6  J.  B.  Moore 
316 ;  15  M.  &  W.  367 ;  Baham  v.  Bach,  13  La. 


AUCTION 


287 


AUCTloX 


287,  33  Am.  Dec.  501  ;  Towle  v.  Leavitt,  23 
N.  H.  360,  55  Am.  Dec.  195;  McDowell  v. 
Simrus,  41  N.  C.  278;  Tomlinson  v.  Savage, 
id.,  430;  Pennock's  Appeal,  14  Pa.  4-10.  53 
Am.  Dec.  561.  Unfair  conduct  on  the  part 
of  the  purchaser  will  avoid  the  sale;  G  J.  B. 
Moore  216;  3  B.  &  P..  116;  Vea/.ie  v.  Wil- 
liams, 3  Sto.  <;-:;,  Fed.  Cas.  No.  16,907; 
Wooton  v.  Ilinkle,  20  Mo.  290;  Sm 
Greenlee,  13  N.  C.  126,  18  Am.  Dec.  564. 
Where  a  buyer  addressed  the  company  as- 
sembled at  an  auction  and  persuaded  them 
that  they  ought  not  to  bid  against  him,  the 
purchase  by  such  buyer  was  held  void ;  3 
B.  &  B„  116. 

Where  a  sale  is  "without  reserve"  neither 
the  vendor  nor  any  one  on  his  behalf  can 
bid,  and  the  property  must  go  to  the  highest 
bidder;  see  Towle  v.  Leavitt,  23  N.  II.  360, 
55  Am.  Dec.  195.  An  auctioneer  who  offers 
his  property  for  sale  without  reserve  pledges 
himself  that  the  sale  shall  be  without  re- 
serve, or  contracts  that  the  property  shall 
go  to  the  highest  bona  fide  bidder,  and  in 
case  the  owner  overbid,  the  highest  bona  fide 
bidder  may  sue  the  auctioneer  as  upon  a 
contract;  1  El.  &  El.  309;  such  a  case  is 
not  affected  by  the  Statute  of  Frauds,  §  17, 
which  relates  only  to  direct  sales;  id.  This 
rule  was  approved  in  [1S99]  2  Ch.  73;  and 
see  [1904]  41  Sc.  L.  Rep.  688. 

In  the  United  States  the  influence  of  the 
leading  English  case  (1  El.  &  Ell.  309)  is 
less  plainly  shown  and  the  rule  is  even  less 
clearly  defined;  Tillman  v.  Dunman,  114  Ga. 
406,  40  S.  E.  244,  57  L.  R.  A.  7S7,  SS  Am.  St. 
Rep.  28. 

In  New  York  it  is  said  there  is  no  case  in 
that  state  which  is  directly  in  point  upon 
the  proposition  that  as  a  matter  of  law, 
where  an  auctioneer  advertises  a  sale  at 
public  auction,  and  in  response  to  this  invi- 
tation bidders  attend,  an  implied  contract 
arises  between  them  that  the  property  will 
be  knocked  down  to  the  highest  bidder; 
Taylor  v.  Harnett,  26  Misc.  362,  55  N.  T. 
Supp.  988.  In  this  case  the  auctioneer  re- 
fused to  accept  the  highest  bid  because  of  its 
inadequacy ;  to  the  same  effect,  Newman  v. 
Vonderheide,  9  Ohio  Dec.  Reprint  164;  but 
see  Hartwell  v.  Gurney,  16  R.  I.  78,  13  Atl. 
113,  where  it  is  said  obiter  that  the  stricter 
rule  seems  to  be  the  just  and  honest  one 
and  ought  to  prevail,  for  an  offer  to  sell  at 
auction  is  an  offer  to  sell  to  the  highest  bid- 
der, and  every  bid  is  an  inchoate  acceptance 
entitling  the  bidder  to  the  property  offered, 
if  it  turns  out  to  be  the  highest  and  there  is 
no  retraction  on  either  side  before  the  ham- 
mer falls.  But  it  has  been  held  that  an  an- 
nouncement that  a  certain  property  will  be 
sold  to  the  highest  bidder  is  a  mere  declara- 
tion of  an  intent  to  hold  an  auction ;  Ander- 
son v.  R.  Co.,  107  Minn.  296,  120  N.  \Y.  :,:», 
20  L.  R.  A.  (N.  S.)  1133,  131  Am.  St  Rep. 
462,  16  Ann.  Cas.  379. 


A  bid  may  be  retracted  by  the  bidder  or 
the    property    withdrawn    bef 
has   been    signified;    3   Term    148;   4    Bingh. 
653;   6  Hare  443;   Benj.   Sales  §  L'7<>; 
41   Sc.  L.  Rep.  688.     The  making  the  bid  is 
the  offer  and  it  is  accepted  and  made  a  bind- 
ing   unilateral    contract    by    the    fall   of    the 
hammer;  13  Ilarv.  L.  Rev.  58,  citi 
L48;   •;   P.   &   s.   720;    Bios  torn  v.  R.   I 
Wall.    (U.   s.i    196,    is  l.   Ed.  43; 
Dawk  ins.    20   Fla.    141. 

Sales  at  auction  are  within  the  Sta1  i 
Frauds;   L'  P..   &   < '.   045;   7   East   558; 
nell  v.  Leeman,  4.".  Me.  VI 
People  v.  White.  6  Cal.  7.",;  Talman  v.  1 
lin,  3  Duer   (X.  Y.  i    395. 

In  Louisiana  a  bid  made  at  an  auction 
sale,  although  formally  accepted,  is  ; 
complete  sale,  but  only  a  promise  of  sale, 
Which  gives  a  right  of  action  for  breach  or  a 
claim  for  specific  performance;  Collins  v. 
Desmaret,  45  Pa.  Ann.  108,  12  South 
In  California  and  Dakota  the  codes  provide 
that  if  the  auctioneer,  having  authority  to 
do  so,  announces  that  the  sale  will  he  with- 
out reserve,  the  highest  bona  fide  bidder  has 
an  ;i!. solute  right  to  the  completion  of  the 
sale  to  hiin,  and  that  bids  by  the  seller  or 
any  agent  for  him  are  void.  Put  they  also 
enact  that  the  bidder  may  withdraw  at  any 
time  before  the  hammer  falls.  OaL  Civ. 
Code  §  1790;  Dak.  Civ.  Code  §  1026. 
where,  it  is  complete,  at  common  law.  See 
Bateman,  Auctions  180.  Error  in  description 
of  real  estate  sold  will  avoid  the  sale  if  it  he 
material;  4  Bingh.  N.  C.  4(53;  8  C.  &  I'. 
,1  Y.  &  C.  058;  but  an  immaterial  variation 
merely  gives  a  case  for  deduction  from  the 
amount  of  purchase-money  ;  1  Kent  437  ;  Jud- 
son  v.  Wass,  11  Johns.  (N.  Y.)  525,  6  Am. 
Dec.  392;  State  v.  Gaillard.  2  Pay  (S.  C.)  11. 
1  Am.  Dec.  628;  McFerran  v.  Taylor,  3  Cra. 
(U.  S.)    270,  2  L.  Ed.  436. 

See  By-Bidding. 

AUCTI0NARIUS  (Lat).  A  seller;  a  re- 
grator;  a  retailer;  one  who  bought  and  sold; 
an  auctioneer,  in  the  modern  sense, 
man,  Gloss.  One  who  buys  poor,  old,  worn- 
out  things  to  sell  again  at  a  greater  price. 
Du  Cange. 

AUCTIONEER.  A  person  authorized  by 
law  to  sell  the  goods  of  others  at  public  sale; 
one  who  conducts  a  public  sale  or  auction; 
Com.  v.  Harnden,  10  rick.  (Mass.)  482.  lie 
is  the  agent  of  the  seller;  Ana.  Contr. 
3  Term  148;  Boinest  v.  Leignez,  2  Rich.  (S. 
O.l  464;  and  of  the  buyer,  for  some  purpos- 
es at  least;  4  Ad.  &  E.  7  .  &  B.  .".7; 
McComb  v.  Wright,  4  Johns.  Ch.  |  X.  Y.  I 
<;."'.);  Trusters  0f  First  Baptist  Church  of 
Ithaca  v.  Bigelow,  16  Wend.  (N.  Y.)  28; 
Cleaves  v.  Fobs,  4  GreenL  (Me.)  l;  Inhabit- 
ants of  Alna  v.  Plunimer,  id.  2f>S ;  Brent  v. 
Green,  6  Leigh  (Va.)  16;  2  Kent  539;  Walk- 
er v.  Herring,  21  Gratt.  (Va.)  678,  8  Am. 
Rep.   616;    Harvey   T.  Stevens,   43    Vt    653; 


AUCTIONEER 


288 


AUCTOR' 


White  V    Watkins    23  Mo.  423 ;   [1002]   2  Ch.  |  hence  goods  thus  sold  were  said  to  be  sold  sub  hasta 
___  ,.  .       ,      .       •„    „„„„+     (under  the  spear).     The  catalogue  of  goods  was  on 

266;  up  to  the  moment  of  sale  he  is  agent 

for  the  vendor  exclusively ;  it  is  only  when 
the  bidder  becomes  the  purchaser  that  the 
agency  for  the  buyer  begins;  Benj.  Sales  § 
270.  He  is  the  agent  of  both  parties  at  a 
public  sale  within  the  Statute  of  Frauds;  7 
East  55S;  Pugh  v.  Chesseldine,  11  Ohio  100, 
37  Am.  Dec.  414;  Harvey  v.  Stevens,  43  Vt. 
655 ;  Benj.  Sales  §  268.  And  see  16  Harv.  L. 
Rev.  220,  where  it  is  remarked  that  the  case 
where  an  agent  acts  for  both  parties  at  a 
sale  is  in  itself  anomalous;  but  not  if  he 
sells  goods  at  a  private  sale;  1  H.  &  C.  484. 
The  memorandum  must  be  made  at  the  time 
of  the  sale;  Horton  v.  McCarty,  53  Me.  304; 
Smith  v.  Arnold,  5  Mas.  414,  Fed.  Cas.  No. 
13,004.  An  auctioneer  employed  to  sell  goods 
in  his  possession  ordinarily  has  authority  to 
receive  payment  for  them,  but  if  he  acts  as 
a  mere  crier  or  broker  for  a  principal  who 
retains  possession,  he  would  not  have  such 
authority ;  Benj.  Sales  §  741.  He  has  a  spe- 
cial property  in  the  goods,  and  may  bring 
an  action  for  the  price ;  7  Taunt.  237 ;  Beller 
v.  Block,  19  Ark.  566;  Hulse  v.  Young,  16 
Johns.  (N.  T.)  1;  see  5  M.  &  W.  645 ;  5  B. 
&  Ad.  568 ;  and  has  a  lien  upon  them  for  the 
charges  of  the  sale,  his  commission,  and  the 
auction-duty;  Harlow  v.  Sparr,  15  Mo.  184; 
2  Kent  536. 

Where  auctioneers  were  employed  to  sell 
goods  upon  the  terms  that  they  were  to  be 
paid  a  lump  sum  by  way  of  commission  and 
were  further  to  be  paid  all  expenses,  they 
were  not  entitled  to  charge  the  owner  with 
the  gross  amounts  of  printing  and  advertis- 
ing bills  (where  they  had  received  discounts 
from  printers  and  proprietors,  in  the  honest 

belief  that  they  were  entitled  to  have  such 

discounts  allowed  them)  ;  L.  R.  [1905]  1  K. 

B.  1. 

He  must  obtain  the  best  price  he  fairly 

can,  and  is  responsible  for  damages  arising 

from  a  failure  to  pursue  the  regular  course 

of  business,  or  from  a  want  of  skill ;  3  B.  & 

Aid.  616;   and  where  he  sells  goods  as  the 

property  of  one  not  the  owner,  is  liable  for 

their  value  to  the  real  owner ;  7  Taunt.  237 ; 

Hoffman   v.    Carow,  20  Wend.    (N.   Y.)    21; 

Allen  v.  Brown,  5  Mo.  323;  and  if  he  sells 

goods  with  notice  that  they  were  obtained 

by  fraud  of  another,  he  is  liable  to  the  real 

owner;   Morrow  Shoe  Mfg.  Co.  v.  Shoe  Co., 

57  Fed.  685,  6  C.  C.  A  508,  24  L.  R.  A.  417. 

See  Hutchinson  v.  Gordon,  2  Harr.  (Del.)  179. 

lor  false  representation  or  breach   of  con- 
tract, the  vendee  of  land  sold  at  auction  has 

a  right  of  action  against  the  vendor  as  well 

as  the  auctioneer  to  recover  a  deposit  paid 

at  the  time  of  sale;  Mahon  v.  Liscomb,  19 

N.  Y.  Supp.  224.     See  Agent;  Auction;  Bid- 
der. 


AUCTOR.     In  Roman  Law.    An  auctioneer. 

In  auction  sales,  a  spear  was  fixed  upright  in  the 
forum,    beside    which    the    seller    took    his    stand ; 


tablets  called  auctionariw. 

AUDIENCE.     A  hearing. 

It  is  usual  for  the  executive  of  a  country  to  whom 
a  minister  has  been  sent,  to  give  such  minister  an 
audience.  And  after  a  minister  has  been  recalled, 
an  audience  of  leave  usually  takes  place. 

As  to  the  right  of  audience  in  court,  see 
Barrister  ;  Disbar. 

AUDIENCE  COURT.     See  Court  of  Audi- 

ENCfl. 

AUDITA  QUERELA  (I/at).  A  form  of 
action  which  lies  for  a  defendant  to  recall 
or  prevent  an  execution,  on  account  bf  some 
matter  occurring  after  judgment  amounting 
to  a  discharge,  and  which  could  not  have 
been,  and  cannot  be,  taken  advantage  of 
otherwise.  Thatcher  v.  Gammon,  12  Mass. 
268.  If  in  a  justice's  suit  the  defendant  is 
out  of  the  state  at  the  time  of  the  service 
of  the  writ  and  remains  away  until  after  the 
return  day  and  has  no  notice  of  suit,  judg- 
ment by  default  may  be  set  aside  by  audita 
querela;  Sawyer  v.  Cross,  65  Vt.  158,  26  Atl. 
528;  but  not  unless  the  action  was  on  its 
face  appealable;  Sawyer  v.  Cross,  66  Vt. 
616,  30  Atl.  5. 

It  is  a  regular  suit  in  which  the  parties 
appear  and  plead ;  Brooks  v.  Hunt,  17  Johns. 
(N.  Y.)  484;  Gleason  v.  Peck,  12  Vt.  56,  36 
Am.  Dec.  329 ;  Clark  v.  Hydraulic  Co.,  12  Vt. 
435;  Melton  v.  Howard,  7  How.  (Miss.)  103; 
Avery  v.  U.  S.,  12  Wall.  (U.  S.)  305,  20  L. 
Ed.  405;  and  in  which  damages  may  be  re- 
covered if  execution  was  issued  improperly; 
Brooke,  Abr.  Damages  38 ;  but  the  writ  must 
be  allowed  in  open  court,  and  is  not  of  itself 
a  supersedeas;  Emery  v.  Patton,  9  Phila. 
(Pa.)   125. 

It  is  a  remedial  process,  equitable  in  its 
nature,  based  upon  facts,  and  not  upon  the 
erroneous  judgments  or  acts  of  the  court; 
2  Wms.  Saund.  148,  n. ;  Lovejoy  v.  Webber, 
10  Mass.  103 ;  Brackett  v.  Winslow,  17  Mass. 
159;  Little  v.  Cook,  1  Aik.  (Vt.)  363,  15  Am. 
Dec.  698;  Porter  v.  Vaughn,  24  Vt.  211. 

It  lies  where  an  execution  against  A  has 
been  taken  out  on  a  judgment  acknowledged 
by  B.  without  authority,  in  A's  name ;  Fitzh. 
N.  B.  233;  and  see  Cro.  Eliz.  233;  and  gen- 
erally for  any  matters  which  work  a  dis- 
charge occurring  after  judgment  entered; 
Cro.  Car.  443;  Pettit  v.  Seaman,  2  Root 
(Conn.)  178;  Com.  v.  Whitney,  10  Pick. 
(Mass.)  439;  see  5  Co.  86  & ;  and  for  mat- 
ters occurring  before  judgment  which  the 
defendant  could  not  plead  through  want  bf 
notice  or  through  collusion  or  fraud  of  the 
plaintiff;  Johnson  v.  Harvey,  4  Mass.  485; 
Smock  v.  Dade,  5  Rand.  (Va.)  639,  16  Am. 
Dec.  780;  Wardell  v.  Eden,  2  Johns.  Cas. 
258;  Williams  v.  Butcher,  1  W.  N.  C.  (Pa.) 
304. 

It  may  be  brought  after  the  day  on  which 
judgment    might    have    been    entered,    al- 


AUDITA  QUERELA 


289 


AUDITOR 


though  it  has  not  been;  1  Rolle,  Abr.  306, 
431,  pi.  10;  1  Mod.  Ill;  either  before  or  aft- 
er execution  has  issued ;  Lothrop  v.  Bennet, 
Kirb.   (Conn.)  187. 

It  does  not  lie  for  matter  which  might 
have  been,  or  which  may  be,  taken  advan- 
tage of  by  a  writ  of  error;  Sutton  v.  Tyrrell, 
10  Vt.  87;  in  answer  to  a  scire  facias  of  the 
plaintiff;  1  Salk.  264;  nor  where  there  is  or 
has  been  a  remedy  by  plea  or  otherwise-.  T. 
Raym.  80;  Thatcher  v.  (Jammon,  12  Mass. 
270;  Barrett  v.  Vaughan,  <".  Vt.  243; 
v.  U.  S.,  12  Wall.  (U.  S.  i  305,  -jo  l.  Ed.  405; 
nor  where  there  has  been  an  agreement  to 
accept  a  .smaller  sum  in  payment  of  a  larger 
debt,  while  any  part  of  the  agreement  con- 
tinues executory  ;  Keen  v.  Vaughan's  Ex'x, 
48  Pa.  477:  nor  to  show  that  a  confessed 
judgment  was  to  be  collateral  security  only; 
Emery  v.  Patton,  0  I'liila.  (Pa.)  125;  nor 
where  a  judgment  is  erroneous  in  part  with- 
out a  tender  of  the  legal  part  of  the  Judg- 
ment; Rickard  v.  Fisk,  66  Vt.  675,  30  Atl.  '.>::; 
nor  against  the  commonwealth ;  Com.  v. 
Berger,  8  Phila.   (Pa.)  237. 

In  modern  practice  it  is  usual  to  grant  the 
same  relief  upon  motion  which  might  be  ob- 
tained by  audita  querela;  Baker  v.  Judges,  4 
Johns.  (N.  Y.)  191;  Witherow  v.  Keller,  11 
S.  &  R.  (Pa.)  271;  and  in  some  of  the  states 
the  remedy  by  motion  has  entirely  supersed- 
ed the  ancient  remedy ;  Smock  v.  Dade,  5 
Rand.  (Va.)  639,  16  Am.  Dec.  780;  Long- 
worth  v.  Screven,  2  Hill  (S.  C.)  298,  27  Am. 
Dec.  381 ;  Marsh  v.  Haywood,  6  Humphr. 
(Tenn.)  210;  Dunlap  v.  Clements,  18  Ala. 
77S;  Chambers  v.  Neal,  13  B.  Monr.  (Ky.) 
256;  while  in  others  audita  querela  is  of 
frequent  use  as  a  remedy  recognized  by 
statute;  Sawyer  v.  Cross.  66  Vt.  616,  30  Atl. 
5;  Rickard  v.  Fisk,  66  Vt.  C7r>,  30  Atl.  93; 
Stone  v.  Chamberlain,  7  Gray  (Mass.)  206; 
Foss  v.  Witham,  9  Allen  (Mass.)   572. 

"Audita  querela  was  given  quite  recently, 
that  is  to  say  in  the  tenth  year  of  the  reign, 
in  Parliament,  .  .  .  and  it  was  never 
given  before."  Y.  B.  18  Edw.  Ill,  Rolls  Se- 
ries, p.  308.  See  Jac.  L.  Diet. ;  Fitzh.  N.  B. 
102;  Register  of  Writs,  vol.  1,  pp.  149,  150 
(for  the  writ  itself). 

AUDITOR.  An  officer  of  the  government, 
whose  duty  it  is  to  examine  the  accounts  of 
officers  who  have  received  and  disbursed 
public  moneys  by  lawful  authority. 

"The  name  auditor  seems  to  have  been 
originally  applied  to  one  whose  duties  were 
judicial  rather  than  fiscal."  Mcllwain,  High 
Court  of  Pari.  251. 

An  officer  of  the  court,  assigned  to  state 
the  items  of  an  account  between  the  parties 
in  a  suit  where  accounts  are  in  question,  and 
exhibit  the  balance.  Whitwell  v.  Willard,  1 
Mete.    (Mass.)    218. 

They  may  be  appointed  by  courts  either 
of  law  or  equity.  They  are  appointed  at 
common  law  in  actions  of  account;  Bacon, 
Bouv.— 19 


Abr.  Accompt,  F;  and  in  many  of  the 
in  other  actions,  under  statute  regulai 
Pierce   v.  Thompson,    6   Pick.    (Mi 
Bartlett  v.  Trefethen,  14  N.  II.  421 :   I 
bell  v.  Crout,  3  R.  I.  60.     An  order  of 
ence  is  proper  where  an  accounting  is  I 
sary  and  the  questions  of  law  Involved  have 
been   disposed  of;    Brown   v.   Finch,   63   Hun 
633,  18  X.  V.  Supp.  551.    Where  a  trial  has 
been  commenced  before  a  jury  and   i 
Cendant  consents  to  an  accounting  and  the 
discharge  of  the  jury,  he  cannot  afterwards 
object  to  the  order  of  reference  because  it 
requires    the   auditor   to    pass   on    disputed 
questions  of  law  and  fact;  Garrity  v.  Ham- 
burger Co.   (111.)  28  X.  B.  743. 

Appearing  before  an  auditor  and  examin- 
ing witnesses  without  objection  constitutes 
a  waiver  of  the  auditor's  taking  an  oath  be- 
fore entering  on  his  duties;  Pardrid 
Ryan,  134  III.  247,  25  X.  E.  027;  Newcomb  v. 
Wood,  97  U.  S.  581,  24  L.  Ed.  1085;  i 
v.  Darrow,  22  Hun   (N.  Y.)    125. 

They  have  authority  to  hear  testimony ; 
Shearman  v.  Akins,  4  Pick.  (Mass.)  283; 
Leach  v.  Shepard,  5  Vt.  363;  Townshend  v. 
Duncan,  2  Bland,  Ch.  (Md.i  45;  Callender 
v.  Colegrove,  17  Conn.  1 :  Paine  v.  Ins.  Co., 
69  Me.  568;  in  their  discretion ;  Smith  v. 
Smith,  27  N.  H.  244;  in  some  states,  to  ex- 
amine witnesses  under  oath;  Palmer  v.  Palm- 
er, 38  N.  H.  418;  Dorsey  v.  Hammond,  1 
Bland,  Ch.  (Md.)  463;  to  examine  books; 
Lazarus  v.  Ins.  Co..  19  Pick.  (Mass.)  81; 
Callender  v.  Colegrove,  17  Conn.  1;  and  other 
vouchers  of  accounts;  Barnard  v.  Stevens, 
11  Mete.   (Mass.)  297. 

The  auditor's  report  must  state  a  special 
account:  Finney's  Adm'r  v.  Harbeson,  4 
Yeates  (Pa.)  514:  Thomas  v.  Alsop,  2  Rool 
(Conn.)  12;  Tutton  v.  Addams,  45  Pa.  67; 
Hill  v.  Hogaboom,  13  Vt.  141  ;  Bartlett  v. 
Trefethen,  14  N.  EL  427:  giving  items  allow- 
ed and  disallowed:  Macks  v.  Brush.  5  Vt. 
70:  Whitehead  v.  Perie.  15  Tex.  7;  but  it  is 
sufficient  if  it  refer  to  the  account;  Demund 
v.  Gowen,  5  N.  J.  L.  687:  but  see  Derrick  v. 
Belknap's  Estate,  27  Vt.  673;  and  are  to  re- 
port exceptions  to  their  decision  of  questions 
taken  before  them  to  the  court;  Thompson  v. 
Arms,  5  Vt.  546;  CrousiUat  v.  McCall,  5 
Binn.  (Pa.)  433;  and  exceptions  must  be 
taken  before  them;  Chappedelalne  v.  Dech- 
enaux,  4  Cra.  (U.  S.)  30S.  2  L.  Ed 
Thompson  v.  Arms.  .">  Vt.  546;  Davis1  Heirs 
v.  Foley,  Walk.  (Miss.)  W :  Whitehead  v. 
Perie,  15  Tex.  7:  Benoit  v.  Brill.  24  Mi 
Anderson  v.  Usher,  59  Ga.  r><'»7;  unless  ap- 
parent on  the  face  of  the  report:  Himely  v. 
Rose,  5  Cra.  (U.  S.)  313,  3  L.  Ed.  111.  See 
Mengas'  Appeal,  19  Pa.  221. 

In  some  jurisdictions,  the  report  of  audi- 
tors is  final  as  to  facts;  Parker  v.  Avery, 
Kirb.  (Conn.)  353;  Wood  v.  Barney,  2  Vt 
369;  Davis'  Heirs  v.  Foley,  Walk.  (Miss.) 
43;  In  re  Ludlam's  Estate.  13  Pa.  188;  Brad- 
ford v.  Wright,  5  R.  I.  33S;    Whitehead  v. 


AUDITOR 


21)0 


AUDITORS  OF  THE  IMPREST 


Perie,  15  Tex.  7;  Closson  v.  Means,  40  Me. 
337;  unless  impeached  for  fraud,  misconduct, 
or  very  evident  error ;  Appeal  of  Stehruan,  5 
Pa.  413;  Appeal  of  Speakman,  71  Pa.  25; 
Closson  v.  Means,  40  Me.  337 ;  but  subject  to 
any  examination  of  the  principles  of  law  in 
which  they  proceeded;  Spencer  v.  Usher,  2 
Day  (Conn.)  116.  In  others  it  is  held  prima 
facie  correct;  Lyman  v.  Warren,  12  Mass. 
412;  Washington  County  Mutual  Ins.  Co.  v. 
Dawes,  6  Gray  (Mass.)  376;  Tourne  v. 
Riviere,  1  La.  Ann.  3S0;  Bartlett  v.  Tre- 
fethen,  14  N.  H.  427 ;  Mathes  v.  Bennett,  21 
N.  H.  188;  and  evidence  may  be  introduced 
to  show  its  incorrectness;  Tourne  v.  Riviere, 
1  La.  Ann.  380;  Benoit  v.  Brill,  24  Miss.  83; 
see  Appeal  of  Thompson,  103  Pa.  603;  Col- 
grove  v.  Rockwell,  24  Conn.  584 ;  and  in  oth- 
ers it  is  held  to  be  of  no  effect  till  sanctioned 
by  the  court ;  Dorsey  v.  Hammond,  1  Bland, 
Ch.  (Md.)  463;    Lee  v.  Abrams,  12  111.  111. 

When  the  auditor's  report  is  set  aside  in 
whole  or  in  part,  it  may  be  referred  back; 
Moore's  Ex'r  v.  Beauchamp,  4  B.  Monr. 
(Ky.)  71;  Shearman  v.  Akins,  4  Pick. 
(Mass.)  2S3;  Leach  v.  Shepard,  5  Vt.  363; 
Mason  v.  Potter,  26  Vt.  722;  Bolware  v.  Bol- 
ware,  1  Litt.  (Ky.)  124;  Lee  v.  Abrams,  12 
111.  Ill;  Hoyt  v.  French,  24  N.  H.  198;  Tur- 
ner v.  Haughton,  71  N.  C.  370;  Mast  v.  Lock- 
wood,  59  Wis.  48,  17  N.  W.  543;  Gardiner 
v.  Schwab,  34  Hun  (N.  Y.)  582;  or  may  be 
rectified  by  the  court ;  Swisher  v.  Fitch,  1 
Smedes  &  M.  (Miss.)  543;  Dorr  v.  Ham- 
mond, 7  Colo.  79,  1  Pac.  693;  or  accepted  if 
the  party  in  favor  of  whom  the  wrong  de- 
cision was  made  remits  the  item. 

Where  the  report  is  referred  back  to  the 
auditor,  the  whole  case  is  reopened,  and  all 
parties  are  bound  to  take  notice;  In  re 
Thomas'  Estate,  76  Pa.  30 ;  see  Mason  v.  Pot- 
ter, 26  Vt.  722;  O'Neill  v.  Capelle,  62  Mo. 
202. 

Where  two  or  more  are  appointed,  all 
must  act;  Crone  v.  Daniels,  20  Conn.  331; 
unless  the  parties  consent  that  a  part  act 
for  all;  Booth  v.  Tousey,  1  Tyl.  (Vt.)  407. 

An  accountant  appointed  for  the  purpose 
of  verifying  and  stating  the  true  financial 
condition  of  a  corporation,  firm  or  individu- 
al. Lindley,  L.  J.,  in  [1895]  2  Ch.  673,  defin- 
ing his  duties  to  be  in  substance :  To  ascer- 
tain and  state  the  true  financial  condition  of 
the  company  and  his  duty  is  confined  to 
that.  He  must  take  reasonable  care  to  as- 
certain that  the  books  show  the  company's 
true  financial  position.  But  he  does  not 
guarantee  that  the  books  do  correctly  show 
the  true  position  of  the  company's  affairs; 
or  that  his  balance  sheet  is  accurate  accord- 
ing to  the  books.  He  must  use  reasonable 
care  and  skill,  under  the  circumstances,  be- 
fore he  believes  that  what  he  certifies  is 
true ;  where  suspicion  is  aroused  more  care 
is  necessary. 

AUDITORS  OF  THE  IMPREST.  Officers 
in  the  exchequer  who  formerly  had  the 
charge  of  auditing  the  great  accounts  of  the 


king's  customs,  naval  and  military  expenses, 
etc.,  but  who  are  now  superseded  by  the 
commissioners  for  auditing  the  public  ac- 
counts.   Jacob. 

AUGMENTATION.  The  increase  arising 
to  the  crown's  revenues  from  the  suppression 
of  monasteries  and  religious  houses  and  the 
appropriation  of  their  lands  and  revenues. 

A  court  of  augmentations  erected  by  Henry 
VIII.,  which  was  invested  with  the  power  of 
determining  suits  and  controversies  relating 
to  monasteries  and  abbey  lands. 

The  court  was  dissolved  in  the  reign  of  Mary,  but 
the  office  of  augmentations  remained  long  after ; 
Cowell. 

A  share  of  the  great  tithes  temporarily 
granted  to  the  vicars  by  the  appropriators, 
and  made  perpetual  by  statute  29  Car.  II. 
c.  8. 

The  word  is  used  in  a  similar  sense  in  the  Cana- 
dian law. 

See  Court  of  Augmentation. 

AULA.  This  was  employed  in  mediaeval 
England  along  with  curia,  and  meant  an  en- 
closure or  hall;  it  was  used  of  the  meetings 
of  the  lord's  men  held  there  exactly  in  the 
same  way  that  the  word  court  was  used. 
Mcllwain,  High  Court  of  Pari.  30.  See 
Couet;   Curia;   Curia  Regis. 

AULA  REGIA.  (Called  frequently  Aula 
Regis).  The  King's  hall  or  palace.  See  Curia 
Regis. 

AULIC  COUNCIL.  Pertaining  to  a  royal 
court.  In  the  old  German  empire,  the  Aulic 
Council  was  the  personal  council  of  the 
emperor,  and  one  of  the  two  supreme  courts 
of  the  empire  which  decided  without  appeal. 
It  was  instituted  about  1502,  and  organized 
under  a  definite  constitution  in  1559,  modi- 
fied in  1654.  It  finally  consisted  of  a  presi- 
dent, a  vice-president,  and  eighteen  council- 
lors, six  of  whom  were  Protestants;  the 
unanimous  vote  of  the  latter  could  not  be  set 
aside  by  the  others.  The  Aulic  Council  ceas- 
ed to  exist  on  the  extinction  of  the  German 
Empire  in  1806.  The  title  is  now  given  to 
the  Council  of  State  of  the  Emperor  of  Aus- 
tria.   Cent.  Diet. 

AUNCEL  WEIGHT.  An  ancient  manner 
of  weighing  by  means  of  a  beam  held  in  the 
hand.     Termes  de  la  Ley;  Cowell. 

AUNT.  The  sister  of  one's  father  or  moth- 
er :  she  is  a  relation  in  the  third  degree. 
See  2  Cornyn,  Dig.  474 ;  Dane,  Abr.  c.  126,  a. 
3,  §4. 

AUSTRALIAN   BALLOT.     See  Election. 

AUSTRIA-HUNGARY.  An  empire  in  the 
southern  central  portion  of  Europe. 

Since  1867  it  has  consisted  of  Austria  and  Hungary 
united  under  one  hereditary  sovereign,  a  common 
army  and  navy  and  diplomacy  controlled  by  the 
Delegations,  a  body  of  120  members,  one-half  repre- 
senting the  legislature  of  Austria  and  one-half  that 
of  Hungary,  the  upper  house  of  each  country  re- 
turning 20  and  the  lower  house  40  delegates.  Ordi- 
narily the  delegates  sit  and  vote  in  two  chambers, 
their  jurisdiction  being  limited  to  foreign  affairs, 
common  finances,  and  war.    The  legislature  of  Aus- 


AUSTRIA-HUNGARY 


291 


AUTER  ACTION  PENDANT 


tria  consists  of  the  Provincial  Diets  representing  the 
provinces  and  the  Reichsrath,  which  consists  of  an 
upper  house  composed  of  princes  of  the  imperial 
family,  nobles,  ecclesiastics,  and  120  life  members 
nominated  by  the  Emperor;  also  a  lower  house  of 
■353  members,  elected.  There  is  a  ministry  of  nine 
members. 

The  legislature  of  Hungary  Is  conjointly  In  the 
King  and  the  Diet  or  Reichstag.  This  consists  of  an 
upper  house  or  house  of  magnates,  including  he- 
reditary peers,  ecclesiastics  aud  fifty  life  peers  ap- 
pointed by  the  Crown  and  other  special  representa- 
tives, and  the  lower  house  elected  by  the  people  to 
the  number  of  453.  There  Is  a  ministry  of  nine, 
including  a  president.  The  supreme  court  of  Aus- 
tria sits  at  Vienna,  that  of  Hungary  at  Buda-Pesth. 
An  administrative  court,  a  high  court  of  justice, 
and  a  court  of  cassation  also  sit  at  Vienna.  There 
are  courts  of  second  instance  in  the  larger  cities 
and  circuit  courts  at  most  of  the  principal  towns 
throughout  the  Empire. 

AUTER.    Another.    See  Autre. 

AUTER  ACTION  PENDANT  (L.  Fr.  an- 
other action  pending).  A  plea  that  another 
action  is  already  pending.  It  may  be  made 
either  at  law  or  in  equity ;  Story,  Eq.  PI.  § 
736.  The  second  suit  must  be  for  the  same 
cause;  2  Dick.  611;  Russell  v.  Alvarez,  5 
Cal.  48;  Hixon  v.  Schooley,  26  N.  J.  L.  461 ; 
Clark  v.  Toggle,  18  Ga.  604 ;  Ballou  v.  Bal- 
lou,  26  Vt.  673;  Merritt  v.  Richey,  100  Ind. 
416 ;  but  a  writ  of  error  may  abate  a  suit  on 
the  judgment;  Jenkins  v.  Pepoon,  2  Johns. 
Cas.  (N.  Y.)  312;  and  if  in  equity,  for  the 
same  purpose;  2  M.  &  C.  Ch.  602;  see  Hart 
v.  Granger,  1  Conn.  154 ;  and  in  the  same 
right;  Story,  Eq.  PL  §  739.  The  criterion  by 
which  to  decide  whether  two  suits  are  for 
the  same  cause  of  action  is,  whether  the  evi- 
dence, properly  admissible  in  the  one,  will 
support  the  other;  Steam  Packet  Co.  v.  Brad- 
ley, 5  Cr.  C.  C.  393,  Fed.  Cas.  No.  13,333.  See 
Watson  v.  Jones,  13  Wall.  (U.  S.)  679,  20  L. 
Ed.  666. 

The  suits  must  be  such  that  the  same 
judgment  may  be  rendered  in  both ;  Buffum 
v.  Tilton,  17  Pick.  (Mass.)  510.  They  must 
be  between  the  same  parties ;  Hall  v.  Hol- 
combe,  26  Ala.  720;  Adams  v.  Gardiner,  13 
B.  Monr.  (Ky.)  197;  Langham  v.  Thomason, 
5  Tex.  127;  in  person  or  interest;  Bennett 
v.  Chase,  21  N.  H.  570;  Hartz  v.  Com.,  1 
Grant,  Cas.  (Pa.)  359;  Anderson  v.  Barry,  2 
J.  J.  Marsh.  '(Ky.)  281.  The  parties  need 
not  be  precisely  the  same;  Rowley  v.  Wil- 
liams, 5  Wis.  151. 

A  suit  for  labor  is  not  abated  by  a  subse- 
quent proceeding  in  rem  to  enforce  a  lien ; 
Delahay  v.  Clement,  3  Scam.  (111.)  201.  A 
suit  in  trespass  is  temporarily  barred  by  a 
previous  proceeding  in  rem  to  enforce  a  for- 
feiture under  laws  of  United  States;  Gelstou 
v.  Hoyt,  3  Wheat.  (U.  S.)  314,  4  L.  Ed.  381. 

The  prior  action  must  have  been  in  a 
domestic  court;  4  Ves.  Ch.  357;  Bowne  v. 
Joy,  9  Johns.  (N.  Y.)  221;  Lyman  v.  Brown, 
2  Curt.  C.  C.  559,  Fed.  Cas.  No.  8,627;  Hatch 
v.  Spofford,  22  Conn.  4S5,  58  Am.  Dec.  433; 
Drake  v.  Brander,  8  Tex.  351 ;  U.  S.  v.  Cruik- 
shank,  92  U.  S.  548,  23  L.  Ed.  5S8  :  Allen  v. 
Watt,  69  111.  655;    Yelverton  v.  Conant,  18 


N.  H.  123;  see  Newell  v.  Newton,  10  Pick. 
(Mass.)  470;  Smith  v.  Lathrop,  44  Pi 
84  Am.  Dec.  448 ;  Salmon  7.  Wootton,  9  Dana 
(Ky.)  422;  Chattanooga,  R.  &  C.  R.  Co.  v. 
Jackson,  SO  Ga.  676,  13  S.  E.  109;  but  a 
attachment  against  the  same  sul 
matter  may  be  shown;  Embree  v.  Han 
Johns.  (N.  Y.)  101;  see  Winthrop  v. 
ton,  8  Mass.  456;  Morton  v.  Webb,  7  Vt.  l_'l  ; 
Sargent  v.  Granite  Co.,  3  Misc.  325,  s.;  X.  V. 
Supp.  8S6;  Harvey  v.  R.  Co.,  50  Minn.  405, 
52  X.  W.  905,  17  L.  R.  A.  84 ;  but  it  will  not 
avail  where  there  was  no  appearance  in  the 
attachment  suit  or  no  personal  service  on  the 
party  attached;  Douglass  v.  Ins.  Co.,  138  N. 
Y.  209,  33  N.  E.  938,  20  L.  R.  A.  118,  34  Am. 
St.  Rep.  448 ;  and  of  the  same  character ; 
22  Eng.  L.  &  Eq.  62;  Story,  Eq.  PI.  736; 
thus  a  suit  at  law  is  no  bar  to  one  in  equity  ; 
Peak  v.  Bull  &  Co.,  8  B.  Monr.  (Ky.)  428; 
Bolton  v.  Landers,  27  Cal.  104;  nor  is  the 
pendency  of  a  bill  in  equity  a  bar  to  an  ac- 
tion at  law;  Mattel  v.  Conant,  150  Mass.  418, 
31  N.  E.  4S7;  Blanchard  v.  Stone,  16  Vt.  234; 
unless  there  be  concurrent  jurisdiction;  22 
Law  Rep.  74;  but  the  plaintiff  may  elect, 
and  equity  will  enjoin  him  from  proceeding 
at  law  if  he  elect  to  proceed  in  equity  ;  2 
Dan.  Ch.  Pr.  §  4 ;  Bisp.  Eq.  §  363;  but  he 
will  not  be  required  to  elecf  in  such  case,  un- 
less the  suit  at  law  is  for  the  same  cause, 
and  the  remedy  at  law  is  co-extensive,  and 
equally  beneficial  with  the  remedy  in  equity. 
A  suit  in  the  circuit  court  having  jurisdiction 
will  abate  a  suit  in  the  state  court,  if  in  the 
same  state;  Walsh  v.  Durkin,  12  Join. 
Y.)  99;  Smith  v.  Ins.  Co.,  22  X.  EL  21  :  and 
so  will  a  suit  in  a  state  court  abate  one  in  a 
United  States  circuit  court;  Earl  v.  Ray- 
mond, 4  McLean,  233,  Fed.  Cas.  No.  4,243; 
but  not  unless  jurisdiction  is  shown  ;  White 
v.  Whitman,  1  Curt.  C.  C.  494,  Fed.  Cas.  Xo. 
17,561 ;  Ex  parte  Balch,  3  McLean,  221,  Fed. 
Cas.  Xo.  790;  Wadleigh  v.  Veazie,  3  Sumn. 
165,  Fed.  Cas.  No.  17,031;  and  not  unless  the 
suit  is  pending  for  the  same  cause,  and  be- 
tween the  same  parties,  in  the  same  stare 
in  which  the  circuit  court  is  sitting ;  Stan- 
ton v.  Embrey,  93  U.  S.  548,  23  L-.  Ed.  983 ; 
Brooks  v.  Mills  County,  4  Dill.  521,  Fed.  Cas. 
No.  1,955. 

The  pendency  of  another  suit  for  the  same 
equitable  relief,  in  another  court  of  co-ordi- 
nate jurisdiction,  is  a  bar  to  a  motion  for  an 
injunction;  Cleveland,  P.  &  A.  R.  Co.  v.  City 
of  Erie,  27  Pa.  3S0 ;  and  may  be  pleaded  in 
abatement  of  an  action  at  law  for  the  same 
cause;  Pittsburg  &  C.  R.  Co.  v.  R.  Co.,  76 
Pa.  481. 

In  general,  the  plea  must  be  in  abatement; 
Hartz  v.  Com..  1  Grant,  Caa  (Pa.)  359;  Carr 
v.  Casey,  20  111.  637;  Rowley  v.  Williams,  5 
Wis.  151;  Ex  parte  Balch,  3  McLean.  221, 
Fed.  Cas.  No.  790;  Danforth  v.  R.  Co.,  93 
Ala.  614,  11  South.  60;  Central  R.  &  Bank- 
ing Co.  v.  Coleman,  88  Ga.  294,  14  S.  B. 
Mattel   v.   Conant,    156  Mass.  418,  31   X     W. 


AUTER  ACTION  PENDANT 


292 


AUTER  ACTION  PENDANT 


487 ;  Rogers  v.  Hoskins,  15  Ga.  276 ;  but  in  i 
a  penal  action  at  the  suit  of  a  common  in- 
former, the  priority  of  a  former  suit  for  the  ' 
same  penalty  in  the  name  of  a  third  person 
may  be  pleaded  in  bar,  because  the  party  who 
first  sued  is  entitled  to  the  penalty ;  xVnder- 
son  v.  Barry,  2  J.  J.  Marsh.  (Ky.)  281. 

It  must  be  pleaded  in  abatement  of  the 
sul  sequent  action  in  order  of  time;    Renner 
v.  Marshall,  1  Wheat.  (U.   S.)  215,  4  L.  Ed. 
74 ;    Carr   v.   Casey,  20   111.   037 ;   Rowley   v.  | 
Williams,  5  Wis.  151 ;    Greenwood  v.  Rector, 

I  Hempst.  70S,  Fed.  Gas.  No.  5,792 ;  Hailman 
v.  Buckmaster,  3  Gilm.  (111.)  498;  Buff  urn  v. 
Tilton,  17  Pick.  (Mass.)  510;  Nicholl  v.  Ma- 
son, 21  Wend.  (N.  T.)  339. 

It  must  show  an  action  pending  or  judg- 
ment obtained  at  the  time  of  the  plea ;  Hixon 
v.  Schooley,  26  N.  J.  L.  461;    Hope  v.  Alley, 

II  Tex.  259;  but  it  is  sufficient  to  show  it 
pending  when  the  second  suit  was  commenc- 
ed; Parker  v.  Colcord,  2  N.  H.  36;  Toland 
v.  Tichenor,  3  Rawle  (Pa.)  320;  the  court 
first  acquiring  concurrent  jurisdiction  re- 
tains it  to  the  exclusion  of  the  other ;  Grif- 
fin v.  Birkhead,  84  Va.  612,  5  S.  E.  6S5 ;  when 
both  suits  are  commenced  at  the  same  time, 
the  pendency  of  each  may  be  pleaded  in 
abatement  of  the  other,  and  both  be  defeat- 
ed; Davis  v.  Dunklee,  9  N.  H.  545;  Beach  v. 
Norton,  8  Conn.  71 ;  Harris  v.  Linnard,  9  N. 
J.  L.  58;  Morton  v.  Webb,  7  Vt.  124;  Mid- 
dlebrook  v.  Travis,  68  Hun  .  155,  22  N.  Y. 
Supp.  672;  and  the  plaintiff  cannot  avoid 
such  a  plea  by  discontinuing  the  first  action 
subsequently  to  the  plea ;  2  Ld.  Raym.  1014 ; 
Com.  v.  Churchill,  5  Mass.  174;  Frogg's 
Ex'rs  v.  Long's  Adm'r,  3  Dana  (Ky.)  157,  28 
Am.  Dec.  69 ;  contra,  Marston  v.  Lawrance, 
1  Johns.  Cas.  (N.  Y.)  397;  Ballou  v.  Ballou, 
26  Vt.  673 ;  Rogers  v.  Hoskins,  15  Ga.  270 ; 
Rush  v.  Frost,  49  la.  183;  Findlay  v.  Keim, 
62  Pa.  112;  Warder  v.  Henry,  117  Mo.  530, 
23  S.  W.  776.  And  a  prior  suit  discontinued 
before  plea  pleaded  in  the  subsequent  one 
will  not  abate  such  suit;  Adams  v.  Gardi- 
ner, 13  B.  Monr.  (Ky.)  197;  Dean  v.  Massey, 
7  Ala.  601;  Nichols  v.  Bank,  45  Minn.  102, 
47  N.  W.  462 ;  nor  will  it  if  a  nonsuit  is  en- 
tered nunc  pro  tunc,  to  make  it  of  a  date  be- 
fore the  commencement  of  the  second  action ; 
Wilson  v.  Pearson,  102  N.  C.  290,  9  S.  E.  707. 
It  may  be  pleaded  in  abatement  of  the  ac- 
tion in  the  inferior  court,  and  must  aver  ap- 
pearance, or  at  least  service  of  process;  1 
Vera.  318.  Suing  out  a  Writ  is  said  to  be 
sufficient  at  common  law ;  Bentley  v.  Joslin, 
1  Hempst.  218,  Fed.  Cas.  No.  18,232.  See 
Lis  Pendens. 

It  must  be  shown  that  the  court  entertain- 
ing the  first  suit  has  jurisdiction;  Rood  v. 
Eslava,  17  Ala.  430;  White  v.  Whitman,  1 
Curt  494,  Fed.  Cas.  No.  17,561.  It  is  a  suffi- 
cient defence  that  the  plaintiff  has  pleaded  the 
identical  claim  on  which  the  action  was 
brought  as  a  set-off  in  a  pending  suit  by  the 


defendant;  Pennsylvania  R.  Co.  v.  Daven- 
port, 154  Pa.  Ill,  25  Atl.  S90. 

It  must  be  proved  by  the  defendant  by 
record  evidence ;  Fowler  v.  Byrd,  Hempst. 
213,  Fed.  Cas.  No.  4,999  a;  Com.  v.  Church- 
ill, 5  Mass.  174;  Riddle  v.  Potter,  1  Cra.  C. 
C.  28S,  Fed.  Cas.  No.  11,811.  It  is  said  that  if 
the  first  suit  be  so  defective  that  no  recovery 
can  be  had,  it  will  not  abate  the  second ; 
Rogers  v.  Hoskins,  15  Ga.  270;  Langham  v. 
Thomason,  5  Tex.  127 ;  Quinebaug  Bank  v. 
Tarbox,  20  Conn.  510;  Downer  v.  Garland, 
21  Vt.  3G2;  Cornelius  v.  Vanirsdallen's 
Adm'r,  3  Pa.  434. 

A  prior  indictment  pending  does  not  abate 
a  second  for  the  same  offence ;  Dutton  v. 
State,  5  Ind.  533;  Com.  v.  Drew,  3  Cush. 
(Mass.)  279;  Com.  v.  Dunham,  Thach.  Cr. 
Cas.  (Mass.)  513. 

When  a  defendant  is  arrested  pending  a 
former  suit  or  action  in  which  he  was  held 
to  bail,  he  will  not,  in  general,  be  held  to 
bail  if  the  second  suit  be  for  the  same  cause 
of  action;  Clark  v.  Weldo,  4  Yeates  (Pa.)  206; 
under  special  circumstances,  in  the  discretion 
of  the  court,  a  second  arrest  will  be  allowed ; 
Peck  v.  Hozier,  14  Johns.  (N.  Y.)  347.  Pend- 
ency of  one  attachment  will  abate  a  second 
in  the  same  county ;  James  v.  Dowell,  7 
Smedes  &  M.  (Miss.)  333. 

So,  generally,  Gould,  Stephen,  and  Chitty 
on  Pleading;  Story,  Mitford,  and  Beames  on 
Equity  Pleading;  Bacon,  Abr.  Abatement, 
Bail  in  Civil  Cases. 

AUTER  DROIT.     In  right  of  another. 

AUTER  VIE.     See  Estate  Pub  Autbe  Vie. 

AUTHENTIC  ACT.     In  Civil  Law.     An  act 

which  has  been  executed  before  a  notary  or 
other  public  officer  authorized  to  execute 
such  functions,  or  which  is  testified  by  a 
public  seal,  or  has  been  rendered  public  by 
the  authority  of  a  competent  magistrate,  or 
which  is  certified  as  being  a  copy  of  a  pub- 
lic register.  Nov.  73,  c.  2 ;  Cod.  752,  6.  4.  21 ; 
Dig.  22.  4. 

An  act  which  has  been  executed  before  a 
notary  public  or  other  officer  authorized  to 
execute  such  functions,  in  presence  of  two 
witnesses,  free,  male,  and  aged  at  least  four- 
teen years ;  or  of  three  witnesses,  if  the  par- 
ty be  blind.  La.  Civ.  Code,  art.  2231.  If 
the  party  does  not  know  how  to  sign,  the 
notary  must  cause  him  to  affix  his  mark  to 
the  instrument.  La.  Civ.  Code,  art.  2231. 
The  authentic  act  is  full  proof  of  the  agree- 
ment contained  in  it,  against  the  contracting 
parties  and  their  heirs  or  assigns,  unless  it 
be  declared  and  proved  to  be  a  forgery,  id. 
art  2233.     See  Merlin,  Rupert.  _^ 

AUTHENTICATION.  A  proper  or  legal 
attestation. 

Acts  done  with  a  view  of  causing  an  in- 
strument to  be  known  and  identified. 

Under  the  constitution  of  the  U.  S.,  con- 
gress has  power  to  provide  a  method  of  au- 


AUTHENTICATION 


AUTHOR] 


thenticating  copies  of  the  records  of  a  state 
with  a  view  to  their  production  as  evidence 
In  other  states.  See  Fobeign  Judgment; 
Full  Faith  and  Credit;  Records. 

AUTHENTIC S.  A  collection  of  the  Novels 
of  Justinian,  made  by  an  unknown  person. 

They  are  entire,  and  are  distinguished  by  their 
name  from  the  epitome  made  by  Julian.  See  1 
Mackeldey,  Civ.    Law   §   72. 

A  collection  of  extracts  made  from  the 
Novels  by  a  lawyer  named  Irnier,  and  which 
he  inserted  in  the  code  at  the  places  tu  which 
they  refer.  These  extracts  have  the  reputa- 
tion of  not  being  correct.  Merlin,  R6pert. 
Authcntiquc. 

AUTHOR  (Lat.  auctor,  from  uugere,  to  in- 
crease, to  produce). 

One  who  produces,  by  his  own  intellectual 
labor  applied  to  the  materials  of  his  compo- 
sition, an  arrangement  or  compilation  new 
in  itself.  At  will  v.  Ferrett,  2  Blatchf.  39, 
Fed.  Cas.  No.  G40. 

When  a  person  has  conceived  the  design  of 
a  work,  and  has  employed  others  to  execute 
it,  the  creation  of  the  work  may  be  so  far 
due  to  his  mind  as  to  make  him  the  author; 
7  C.  B.  N.  S.  268;  but  he  is  not  an  author 
who  merely  suggests  the  subject,  and  has  no 
share  in  the  design  or  execution  of  the  work; 
17  C.  B.  432;  Drone,  Copyright  230.  Tne 
reporter  of  a  speech  verbatim  is  the  author 
of  the  report ;  [1900]  A.  C.  539.  The  adopter 
of  a  foreign  drama,  who  introduces  into  his 
version  material  alterations,  is  an  author  of 
a  dramatic  piece;  74  C.  T.  77;  within  the 
Fine  Arts  Copyright  Act,  the  operator  who 
takes  (or  superintends  the  taking  of)  the 
negative  is  the  author  of  a  photograph  and 
not  the  actual  proprietor  of  the  business; 
52  L.  J.  Q.  B.  750. 

See  Copyright. 

AUTHORITIES.  Enactments  and  opin- 
ions relied  upon  as  establishing  or  declaring 
the  rule  of  law  which  is  to  be  applied  in  any 
case. 

The  opinion  of  a  court,  or  of  counsel,  or  of  a  text- 
writer  upon  any  question,  Is  usually  fortified  by  a 
citation  of  authorities.  In  respect  to  their  general 
relative  weight,  authorities  are  entitled  to  prece- 
dence In  the  order  In  which  they  are  here  treated. 

The  authority  of  the  constitution  and  of 
the  statutes  and  municipal  ordinances  are 
paramount;  and  if  there  is  any  conflict 
among  these,  the  constitution  controls,  and 
courts  declare  a  statute  or  ordinance  which 
conflicts  with  the  former  to  be  so  far  forth 
of  no  authority.     See  Constitutional  Law. 

The  decisions  of  courts  of  justice  upon 
similar  cases  are  the  authorities  to  which 
most  frequent  resort  is  to  be  had ;  and  al- 
though in  theory  these  are  subordinate  to 
the  first  class,  in  practice  they  do  continual- 
ly explain,  enlarge,  or  limit  the  provisions  of 
enactments,  and  thus  in  effect  largely  modi- 
fy them.  The  word  authorities  is  frequently 
used  in  a  restricted  sense  to  designate  cita- 
tions of  this  class.    See  23  A.  &  E.  Encya  of 


Law   19;     Chamberlain,    Start     D 
Precedents. 
As  to  American  di  -  anthoril 

English  courts,  see   Pa  •  rs. 

The  opinions  of  legal  writers.     Of  the 
number  of  treatises  and  comm    itai 
we  have,  comparatively  few  i 
authorities.      A    very    large    numl    . 
reality    but    little   more    than  if    the 

adjudged  cases  arranged  in  tree 
and  find  their  chief  utility  as  maim 
reference.  Hence  it  has  been  remarked  thai 
when  we  find  an  opinion  in  a  text-writer  up 
on  any  particular  point,  we  must  Consider  It 
not  merely  as  the  opinion  of  the  author,  but 
as  the  Bupposed  result  of  the  authorities  to 
which  he  refers;  and  if  on  examination  of 
those  authorities  they  are  found  not  to  es- 
tablish it,  his  opinion  is  disregarded  ;  3  B. 
&  P.  301.  Where,  however,  the  writer  de- 
clares his  own  opinion  as  founded  upon  prin- 
ciple, the  learning  and  ability  of  the  writer, 
together  with  the  extent  to  which  the  rea- 
sons he  assigns  commend  themselves  to  the 
reader,  determine  the  weight  of  his  opinion. 
A  distinction  has  been  made  between  writers 
who  have  and  who  have  not  held  judicial 
station;  Ram,  Judgments  93.  But  this, 
though  it  may  be  borne  in  mind  in  estimat- 
ing the  Learning  and  ability  of  an  author,  is 
not  a  just  test  of  his  authority.  Bee  •"• 
(II,  241.  Early  text-books  have  a  footl 
their  own  and  are  considered  authorities. 
Pollock,  First  Book  230.  '-In  England  and 
America,  not  only  is  there  no  line  between 
the  careers  of  judges  and  advocates.  Inn 
there  is  no  line  between  the  judges  and  ad- 
vocates and  the  jurists.  Indeed,  a  large 
portion  of  those  text-writers  who  could  be 
properly  cited  as  authority  have  either  filled 
high  judicial  positions,  or  have  been  actively 
engaged  in  some  branch  of  practice  Omit- 
ting the  names  of  living  writers,  we  have, 
in  England,  Bracton,  Littleton,  Coke,  Hale, 
Doderidge,  Gilbert,  Foster,  Blackstone, 
Fearne,  llargrave,  Butler,  Preston.  Wigram, 
Abbott,  Sugden.  Stephen,  Byles,  Williams, 
Blackburn.  Benjamin;  and  in  the  United 
states,  Kent,  story,  Redfield,  Washburn, 
Rawle  [Covenants  for  Title].''  John  C.  Gray 
(Nature  and  Sources  of  Law  255).  1' 
Crown  Law  (1762)  is  said  to  be  the  latest 
book  to  which  authority  in  i 
can  be  ascribed.  Pollock.  Firs!  Book  of 
Jurispr.  246.  Five  books  are  said  to  stand 
out  pre-eminently  in  the  history  of  English 
law— Glanvil,  Bracton,  Littleton,  Cok< 
Blackstone.     "J  Holdsw.  Hist.  E.  L.   !M. 

"It  is  to  my  mind  much  t< 
and  it  is  a  regret  which  I  believe  every  judge 
on  the  bench  shares,  that  text-books  are 
more  and  more  Quoted  in  court  —  I  mean,  of 
course,  text-books  by  living  authors — and 
some  judges  have  gone  so  far  as  to  say  that 
they  shall  not  be  quoted."  Kekewich,  J.,  in 
[1887]  L.  K.  37  C.  D    54. 

In  complicated  questions  of  real  estate  law, 


AUTHORITIES 


294 


AUTHORITY 


in  the  absence  of  cases,  weight  is  given  to 
text-books  of  recognized  authority;  IS  C.  15. 
N.  S.  90,  107  (Erie,  C.  J.);  and  to  the  settled 
practice  of  conveyancers;  2  Brod.  &  Bing. 
473,  000,  per  Eldon,  L.  C,  in  the  House  of 
Ixjrds;  Turn.  &  R.  81,  87,  when  the  same 
judge  puts  his  decision  on  that  ground,  say- 
ing, that  "after  the  abuse  which  I  have 
heard  at  the  bar  of  the  House  of  Lords  and 
elsewhere  upon  that  subject,  I  am  not  sorry 
to  have  this  opportunity  of  stating  my  opin- 
ion that  great  weight  should  be  given  to  that 
practice."  The  practice  of  conveyancers  was 
considered  by  Jessel,  M.  C,  worthy  of  con- 
sideration though  not  decisive;  10  Ch.  D. 
211,  223. 

As  to  the  value  and  effect  of  the  opinions 
of  the  Attorney-Generals  of  the  United 
.States,  see  In  re  District  Attorney  of  Unit- 
ed States,  2  Cadwalader's  Cases  138,  Fed. 
Cas.  No.  3,924,  7  Am.  L.  Reg.  (N.  S.)  801,  per 
Cadwalader,  J.  Uevens,  Atty.-Gen.,  in  10 
Op.  522,  referred  to  this  opinion  as  being  that 
of  a  subordinate  judge,  and  therefore  less 
weighty  than  those  of  the  Attorney-Generals. 
See  Executive  Poweb. 

The  opinions  of  writers  on  moral  science, 
and  the  codes  and  laws  of  ancient  and  for- 
eign nations,  are  resorted  to  in  the  absence 
of  more  immediate  authority,  by  way  of  as- 
certaining those  principles  which  have  com- 
mended themselves  to  legislators  and  phil- 
osophers in  all  ages.  See  Code.  Lord  Coke's 
saying  that  common  opinion  is  good  author- 
ity in  law,  Co.  Litt  186  a,  is  not  understood 
as  referring  to  a  mere  speculative  opinion  in 
the  community  as  to  what  the  law  upon  a 
particular  subject  is ;  but  to  an  opinion 
which  has  been  frequently  acted  upon,  and 
for  a  great  length  of  time,  by  those  whose 
duty  it  is  to  administer  the  law,  and  upon 
which  course  of  action  important  individual 
rights  have  been  acquired  or  depend ;  Bank 
of  Utica  v.  Mersereau,  3  Barb.  Ch.  (N.  Y.) 
528,  577,  49  Am.  Dec.  189. 

As  to  the  mode  of  citing  authorities,  see 
Citation  of  Authorities. 

See  Judge-Made  Law;  Law. 

AUTHORITY.  The  lawful  delegation  of 
power  by  one  person  to  another. 

Authority  coupled  with  an  interest  is  an 
authority  given  to  an  agent  for  a  valuable 
consideration,  or  which  forms  part  of  a  se- 
curity. 

Express  authority  is  that  given  explicitly, 
either  in  writing  or  verbally. 

General  authority  is  that  which  authorizes 
the  agent  to  do  everything  connected  with 
a  particular  business.     Story,  Ag.  §  17. 

It  empowers  him  to  bind  his  principal  by  all 
acts  "within  the  scope  of  his  employment;  and  it 
cannot  be  limited  by  any  private  direction  not 
known  to  the  party  dealing  with  him.  Paley,  Ag. 
199. 

Limited  authority  is  that  where  the  agent 
is  bound  by  precise  instructions. 

Special  authority  is  that  which  is  confined 


to  an  individual  transaction.  Story,  Ag.  § 
19 ;  15  East  400,  408 ;  Andrews  v.  Kneeland, 
0  Cow.  (N.  Y.)  354. 

Such  an  authority  does  not  bind  the  employer, 
unless  it  Is  strictly  pursued;  for  it  Is  the  business 
of  the  party  dealing  with  the  agent  to  examine  his 
authority  ;  and  therefore,  if  there  be  any  qualifica- 
tion or  express  restriction  annexed  to  it,  it  must  be 
observed;  otherwise,  the  principal  Is  discharged; 
Paley,    Ag.   202. 

Naked  authority  is  that  where  the  prin- 
cipal delegates  the  power  to  the  agent  wholly 
for  the  benefit  of  the  former. 

A  naked  authority  may  be  revoked  ;  an  authority 
coupled  with  an  interest  is  irrevocable. 

Unlimited    authority    is    that    where    the 
agent  is  left  to  pursue  his  own  discretion. 
See  Principal  and  Agent. 

AUTOCRACY.  A  government  where  the 
power  of  the  monarch  is  unlimited  by  law. 

AUTOMATIC  COUPLER.  See  Safety  Ap- 
pliance Act. 

AUTOMOBILES.  A  vehicle  for  the  car- 
riage of  passengers  or  freight,  propelled  by 
its  own  motor.  It  has  been  held  to  be  a  car- 
riage, not  a  machine ;  Baker  v.  Fall  River, 
187  Mass.  53,  72  N.  E.  336 ;  but  by  the  same 
court  in  a  later  case  if  was  held  that  a  stat- 
ute enacted  more  than  one  hundred  years 
ago  providing  that  cities  or  towns  should  pay 
for  the  repairs  of  highways  so  as  to  make 
them  reasonably  safe  for  travellers  with  car- 
riages could  not  be  construed  reasonably  to 
include  a  heavy  modern  automobile;  Doherty 
v.  Inhabitants  of  Ager,  197  Mass.  241,  83  N. 
E.  677,  14  L.  R.  A.  (N.  S.)  816,  125  Am.  St 
Rep.  355. 

The  legislature  may,  under  the  police  pow- 
er, regulate  the  driving  of  automobiles  and 
motor  cycles  and  provide  for  a  registration 
fee,  which  is  a  license  fee,  not  a  tax ;  Com. 
v.  Boyd,  18S  Mass.  79,  74  N.  E.  255,  108  Am. 
St.  Rep.  464;  see  Com.  v.  Densmore,  29  Pa. 
Co.  Ct  R.  217.  A  city  may,  under  a  charter 
conferring  the  power  to  regulate  the  use  of 
its  highways,  enact  an  ordinance  requiring 
the  registering  and  numbering  of  automo- 
biles or  other  motor  vehicles  and  exacting  a 
fee  from  the  owner  to  pay  for  the  license  tag 
to  be  furnished  by  the  city;  People  v. 
Schneider,  139  Mich.  673,  103  N.  W.  172,  69 
L.  R.  A.  345,  5  Ann.  Cas.  790.  It  may  regu- 
late the  speed  of  automobiles  and  require  the 
use  of  reasonable  safety  appliances;  City  of 
Chicago  v.  Banker,  112  111.  App.  94.  It  may 
prescribe  different  rates  of  speed  in  different 
parts  of  the  city,  according  to  the  width  of 
the  streets,  their  use,  and  the  density  of  pop- 
ulation ;  Chittenden  v.  Columbus,  2G  Ohio  C. 
C.  531.  An  ordinance  limiting  speed  within 
certain  limits  is  not  invalid  because  another 
ordinance  permits  street  cars  to  run  at  a 
greater  rate  of  speed;  id.  A  provision  in 
the  charter  of  a  city  which  empowered  it  to 
regulate  the  use  of  the  streets  and  the  speed 
of  vehicles,  and  to  license  and  regulate  cer- 
tain occupations,  was  held  not  to  confer  power 


AUTOMOBILES 


205 


•  mobiles 


to  enact  an  ordinance  requiring  one  who  uses 
an  automobile  for  his  private  business  and 
pleasure  only  to  submit  to  an  examination 
and  to  be  licensed;  City  of  Chicago  v.  Bank- 
er, 112  111.  App.  94 ;.  the  ordinance  was  fur- 
ther held  to  impuse  a  burden  upon  one  class 
of  citizens  not  imposed  upon  others. 

There  may  be  a  recovery  for  common  law 
negligence  in  operating  an  automobile,  al- 
though the  use  of  such  vehicles  has  become  a 
matter  of  statutory  regulation;  Christy  v. 
Elliott,  21G  111.  31,  74  X.  K.  1085,  1  L.  R.  A. 
(N.  S.)  215,  108  Am.  St.  Rep.  19U,  3  Ann.  Cas. 
487.  The  law  does  not  denounce  motor  car- 
riages as  such  on  the  public  ways.  So  long 
as  they  are  constructed  and  propelled  in  a 
manner  consistent  with  the  proper  use  of  the 
highways  and  are  calculated  to  subserve  the 
public  as  a  beneficial  means  of  transporta- 
tion, with  reasonable  safety  to  travellers  by 
ordinary  modes,  they  have  an  equal  right 
with  other  vehicles  in  common  use  to  occupy 
the  streets  and  roads;  Gregory  v.  Slaughter, 
124  Ky.  345,  99  S.  W.  247,  8  L.  R.  A.  (X.  S.  I 
1228,  124  Am.  St.  Rep.  402;  Indiana  Springs 
Co.  v.  Brown,  105  Ind.  465,  74  N.  E.  G15,  1 
L.  R.  A.  (N.  S.)  238,  G  Ann.  Cas.  G5G.  There 
is  nothiug  dangerous  in  their  use  when  care- 
fully managed.  Their  guidance,  speed  and 
noise  are  all  subject  to  quick  and  easy  regu- 
lation, and  under  the  control  of  a  competent 
and  considerate  manager  it  is  as  harmless' on 
the  road  as  other  vehicles  in  common  use ; 
Mclntyre  v.  Orner,  1GG  Ind.  57,  7G  N.  E.  750, 
4  L.  R.  A.  (N.  S.)  1130,  117  Am.  St.  Rep.  359, 
8  Ann.  Cas.  1087.  It  is  the  manner  of  driving 
the  vehicle,  and  that  alone,  which  threatens 
the  safety  of  the  public.  The  ability  to  stop 
quickly,  its  quick  response  to  guidance,  its 
uncontrolled  sphere  of  action,  would  seem  to 
make  the  automobile  one  of  the  least  danger- 
ous of  conveyances ;  Yale  L.  J.  Dec.  1905. 
Because  they  are  likely  to  frighten  horses  is 
no  reason  for  prohibiting  their  use.  In  all 
human  activities  the  law  keeps  up  with  im- 
provement and  progress  brought  about  by 
discovery  and  invention;  and  in  respect  to 
highways,  if  the  introduction  of  a  new  con- 
trivance for  transportation  purposes,  con- 
ducted with  due  care,  is  met  with  inconven- 
ience and  even  accidental  injury  to  those 
using  ordinary  modes,  there  can  be  no  recov- 
ery, provided  the  contrivance  is  compatible 
with  the  general  use  and  safety  of  the  road. 
It  is  improper  to  say  that  the  driver  of  a 
horse  has  rights  in  the  road  superior  to  the 
driver  of  the  automobile;  Eannlgan  v. 
Wright,  5  Pennewill  (Del.)  537,  63  Atl.  234; 
Wright  v.  Crane,  142  Mich.  508.  106  N.  W. 
71;  and  each  is  equally  restricted  in  the  ex- 
ercise of  his  rights  by  the  corresponding 
rights  of  the  other;  Macomber  v.  Nichols,  34 
Mich.  212,  22  Am.  Rep.  522;  Holland  v. 
Bartch,  120  Ind.  46,  22  N.  E.  S3,  16  Am.  St. 
Rep.  307.  Each  is  required  to  use  ordinary 
care,  in  order  to  avoid  receiving  injury  as 
well  as  inflicting  injury  upon  the  other,  and 


in  this  the  degree  of  care  required  Is  to  be 
estimated  by  the  exigencies  of  the  particular 
situation. 

No  operator  of  an  automobile  Is  exempt 
from  liability  for  a  collision  in  a  public 
by  merely  showing  that  at  the  time  of  the 
accident  he  did  not  run  at  a  rate  of 
ceedlng  the  limit  allowed  by  the  law.     He  is 
bound    to   anticipate   that   he   may   meet   per- 
sons at  any  point  in  a  public  street  :    !• 
v.  Transp.  Co.,  106  App.  Div.  X.  v. 

Supp.  798;  and  he  must  keep  a  proper  look- 
out for  them;  McFern  v.  Gardner,  121  Mo. 
App.  1,  97  S.  W.  972;  and  keep  his  machine 
under  such  control  as  will  enable  him  to 
avoid  a  collision  with  another  person  also 
using  care  and  caution;  Gregory  v.  Slaugh- 
ter, 121  Ky.  345,  U'J  S.  W.  247,  8  L.  B.  A.  i  X. 
S.)  1228,  124  Am.  St.  Rep.  402;  If 
he  must  run  slowly,  and  even  stop;  Thies  v. 
Thomas,  77  N.  Y.  Supp.  270.  No  blowing  of 
a  horn  or  whistle,  nor  the  ringing  of  a  bell 
or  gong,  without  an  attempt  to  lessen  the 
speed,  is  sufficient,  if  the  circumstances  de- 
mand that  the  speed  should  be  lessened,  or 
the  machine  be  stopped,  and  such  a  course  is 
practicable.  The  true  test  is  that  he  should 
use  all  the  care  which  a  careful  driver  would 
have  exercised  under  the  same  circum- 
stances; Thies  v.  Thomas,  77  N.  Y.  Supp. 
270.  He  has  been  held  to  the  same  degree  of 
care  as  a  motorman  of  an  electric  ear;  Mc- 
Fern v.  Gardner,  121  Mo.  App.  1.  07  s.  \v. 
972.  A  pedestrian  crossing  a  Btreel  is  not 
bound  to  "stop,  'look  and  listen"  for  auto- 
mobiles; Baker  v.  Close,  204  X.  Y.  92,  '.iT  X. 
E.  501.  38  L.  R.  A.  (X.  S.)  4S7.  That  a  stat- 
ute limiting  speed  on  the  highways  applies 
only  to  horseless  vehicles  does  not  render  it 
void  as  an  unjust  discrimination  :  Christ; 
v.  Elliott,  21G  111.  31,  74  X.  E.  1035,  1  L.  R. 
A.  (N.  S.)  215,  10S  Am.  St.  Rep.  196,  3  Ann. 
Cas.  487. 

The    U.    S.    R.    S.    prohibiting    pas- 
steamers  from  carrying  as  freight  certain  ar- 
ticles, including  petroleum  products  or  other 
like   explosive   fluids,    except   under    certain 
conditions,  were  amended  by  the  act  of  Feb. 
21,  1901,  which  provides  that  "nothing  in  the 
foregoing   or  following   sections   of   this   act 
shall    prohibit    the   transportation    by    - 
vessels  of  gasolene  or  any  of  the  prodi; 
petroleum    when    carried   by   motor    vehicles 
(commonly  known  as  automobiles)   using  the 
same  as  a  source  of  motive  power:     provided 
however  that  all  fire,  if  any,  in  such  vehicles 
or  automobiles  lie  extinguished  before  enter- 
ing the  said  vessel,  and  the  same  be  not  re- 
lighted until  after  said  vehicle  shall  have  left 
the  same."     Under  this  act  it  was  held  that 
gasolene   contained    in    the  tank   of  an  auto- 
mobile being  transported  on  a  steam 
was  carried  as  freight  within  the  meaning  of 
the  statute,  that  an  automobile  in  which  the 
motive  power  was  generated  by  passi' 
electric  spark  through  a  compressed  mixture 
of  gasolene  and  air  in  the  cylinder,  causing 


AUTOMOBILES 


296 


AUTREFOIS  ACQUIT 


intermittent  explosions,  carried  a  fire  while 
the  vehicle  was  under  motion  from  its  own 
motive  power;    and  that  the  carrying  by  a 
steam  ferryboat  of  such  a  vehicle,  which  was 
run  in  and  off  the  boat  by  its  own  power. 
was  a  violation  of  the  statute;    The  Texas, 
134  Fed.  909.    In  1905,  Congress  amended  the 
existing  law  by  enacting  that  "nothing  in  the 
foregoing  or  following  sections   of  this  act 
shall    prohibit    the    transportation    by    steam 
vessels  of  gasolene  or  any  of  the  products  of 
petroleum    when   carried    by    motor    vehicles 
(commonly  known  as  automobiles)  using  the 
as  a  source  of  motive  power :    provided 
however,  that  all  fire,  if  any,  in  such  vehicles 
or  automobiles  be  extinguished  immediately 
after  entering  said  vessels  and  the  same  be 
not  relighted  until   immediately  before  said 
vehicle  shall  leave  the  vessel;    provided  fur- 
ther, that  any  owner,  master,  agent  or  other 
person    having    charge    of    passenger    steam 
vessels   shall    have   the    right   to    refuse   to 
transport  automobile  vehicles,  the  tanks  of 
which  contain  gasolene,  naptha  or  other  dan- 
gerous burning  fluids";    33  Stat.  L.  720. 

An  absent  owner  of  an  automobile  is  not 
liable  for  the  negligence  of  the  chauffeur 
committed  at  a  time  when  he  was  not  en- 
gaged in  the  owners  business;  Clark  v. 
Buckmobile  Co.,  107  App.  Div.  120,  94  N.  Y. 
Supp.  771 ;  Reynolds  v.  Buck,  127  la.  601,  103 
N.  W.  946;  even  though,  as  in  the  latter 
case,  the  automobile  was  decorated  for  the 
purpose  of  advertising  the  owner's  business. 
A  statute  providing  that  one  operating  a 
motor  vehicle  who  has  caused  an  accident  to 
his  knowledge  and  leaves  the  place  without 
stopping  or  leaving  his  name  is  guilty  of  a 
felony,  was  held  to  be  a  simple  police  regu- 
lation. The  driver  who  discloses  his  identity 
is  not  furnishing  evidence  of  guilt,  but 
rather  of  innocence;  Ex  parte  Kneedler,  243 
Mo.  632,  147  S.  W.  9S3,  40  L.  R.  A.  (N.  S.) 
622,  Ann.  Cas.  1913C,  923. 
See  Huddy,  Automobiles. 
AUTONOMY  (Greek,  avrovofiia).  The  state 
of  independence. 

The  autonomos  was  he  who  lived  according  to  his 
own  Maws,— who  was  free.  The  term  was  chiefly 
used  of  communities  or  states,  and  meant  those 
which  were  independent  of  others.  It  was  intro- 
duced into  the  English  language  by  the  divines  of 
the  seventeenth  century,  when  it  and  its  translation 
—self-government — were  chiefly  used  in  a  theologi- 
cal sense.  Gradually  its  translation  received  a 
political  meaning,  in  which  it  is  now  employed  al- 
most exclusively.  Of  late  the  word  autonomy  has 
been  revived  in  diplomatic  language  in  Europe, 
meaning  independence,  the  negation  of  a  state  of 
political  Influence  from  without  or  foreign  powers. 
See  Lieber,  Civ.  Lib. 

AUTOPSY.     See  Dead  Body. 

AUTRE  VIE  (Fr.).  The  life  of  another. 
See  Estate  pub  Autre  Vie. 

AUTREFOIS  ACQUIT  (Fr.  formerly  ac- 
quitted). A  plea  made  by  a  defendant  in- 
dicted for  a  crime  or  misdemeanor,  that  he 
has  formerly  been  tried  and  acquitted  of  the 
same  offence. 


The  constitution  of  the  United  States, 
Amend,  art.  5,  provides  that  no  person  shall 
be  subject  for  the  same  offence  to  be  put 
twice  in  jeopardy  of  life  or  limb.  This  is 
simply  a  re-enactment  of  the  common-law. 
The  same  provision  is  to  be  found  in  the  con- 
stitution of  almost  all  if  not  of  every  state, 
and  if  not  in  the  constitution  the  same  prin- 
ciples are  probably  declared  by  legislative 
act;  so  that  they  must  be  regarded  as  funda- 
mental doctrines  in  every  state;  2  Kent  12. 
See  U.  S.  v.  Perez,  9  Wheat.  (U.  S.)  579,  6 
L.  Ed.  105;  U.  S.  v.  Gibert,  2  Sumn.  19,  Fed. 
Cas.  No.  15,204;  Com.  v.  Bowden,  9  Mass. 
494;  People  v.  Goodwin,  IS  Johns.  (N.  Y.) 
187,'  9  Am.  Dec.  203 ;  State  v.  Hall,  9  N.  J. 
L.  256.  See,  however,  Com.  v^Cook,  6  S.  & 
R.  (Pa.)  577,  9  Am.  Dec.  465;  State  v.  Gar- 
rigues,  2  N.  C.  241;  Whart.  Crim.  PI.  §  490. 
This  plea  is  founded  upon  the  maxim,  nemo 
debet  Us  vexari  pro  eadem  causa;  Broom, 
Leg.  Max.  205. 

The  court,  however,  must  have  been  com- 
petent, having  jurisdiction  and  the  proceed- 
ings regular;  McNeil  v.  State,  29  Tex.  App. 
48,  14  S.  W.  393;  Blyew  v.  Com.,  91  Ky.  200, 
15  S.  W.  356 ;  but  see  Powell  v.  State,  89  Ala. 
172,  8  South.  109. 

To  be  a  bar,  the  acquittal  must  have  been 
after  a  trial;  Marston  v.  Jenness,  11  N.  H. 
156;  State  v.  Odell,  4  Blackf.  (Ind.)  156; 
State  v.  Tindal,  5  Harr.  (Del.)  488;  Hassell 
v.  Nutt,  14  Tex.  260;  and  by  verdict  of  a 
jury  on  a  valid  indictment;  4  Bla.  Com.  335 ; 
People  v.  Barrett,  1  Johns.  (N.  Y.)  66; 
Heikes  v.  Com.,  26  Pa.  513;  State  v.  Wilson, 
39  Mo.  App.  187.  In  Pennsylvania  and  some 
other  states,  the  discharge  of  a  jury,  even 
in  a  capital  case,  before  verdict,  except  in 
case  of  absolute  necessity,  will  support  the 
plea;  Com.  v.  Clue,  3  Rawle  (Pa.)  498;  State 
v.  McGimsey,  80  N.  C.  377,  30  Am.  Rep.  90; 
but  the  prisoner's  consent  to  the  discharge  of 
a  previous  jury  is  a  sufficient  answer ;  Peif- 
fer  v.  Com.,  15  Pa.  468,  53  Am.  Dec.  605.  In 
the  United  States  courts  and  in  some  states, 
the  separation  of  the  jury  when  it  takes 
place  in  the  exercise  of  a  sound  discretion 
is  no  bar  to  a  second  trial;  Whart.  Cr.  PI. 
§  499;  Clark,  Cr.  Law  373;  Simmons  v.  U. 
S.,  142  U.  S.  148,  12  Sup.  Ct.  171,  35  L.  Ed. 
968 ;  as  where  the  jury  is  discharged  because 
of  the  sickness  of  a  juror;  People  v.  Ross, 
S5  Gil.  383,  24  Pac.  7S9 ;  State  v.  Hazledahl, 
2  N.  D.  521,  52  N.  W.  315,  16  L.  R.  A.  150; 
see  Stocks  v.  State,  91  Ga.  831,  18  S.  E.  847; 
or  because  they  failed  to  agree;  Logan  v. 
U.  S.,  144  U.  S.  203,  12  Sup.  Ct.  617,  36 
L.  Ed.  429 ;  State  v.  Whitson,  111  N.  O.  695, 
16  S.  E.  332. 

There  must  be  an  acquittal  of  the  offence 
charged  in  law  and  in  fact;  Com.  v.  Myers, 
1  Va.  Cas.  188;  Wortham  v.  Com.,  5  Rand. 
(Va.)  669;  Com.  v.  Goddard,  13  Mass.  457; 
McCreary  v.  Com.,  29  Pa.  323;  People  v. 
March,  6  Cal.  543;  Winn  v.  State,  82  Wis. 
571,  52  N.  W.  775;    the  plea  will  be  bad  if 


AUTREFOIS  ACQUIT 


297 


AUTREFOIS  ACQUIT 


the  offences  charged  in  the  two  indictments 
be  perfectly  distinct  in  point  of  law,  however 
clearly  they  may  be  connected  in  fact ;  Bur- 
ton v.  U.  S.,  202  U.  S.  345,  26  Sup.  Ct.  CSS, 
50  L.  Ed.  1057,  G  Ann.  Cas.  3G2,  citing  Com. 
v.  Roby,  12  Tick.  (Mass.)  502;  but  an  ac- 
quittal is  conclusive;  Slaughter  v.  State,  G 
Humphr.  (Tenn.)  410;  Com.  v.  Cuminings,  3 
Cush.  (Mass.)  212,  50  Am.  Dec.  732;  State  v. 
Brown,  1G  Conn.  54;  State  v.  Jones,  7  Ga. 
422;  State  v.  Johnson,  8  Blackf.  (Ind.)  533; 
State  v.  Wright,  3  Brev.  (S.  C.)  421;  State  v. 
Spear,  G  Mo.  G44 ;  Dillard's  Adin'r  v.  Moore, 
7  Ark.  1G9;  State  v.  De  Hart,  7  N.  J.  E.  172; 
State  v.  Anderson,  3  Smedes  &  M.  (Miss.) 
751:  State  v.  Burris,  3  Tex.  118;  Lawyer  v. 
Smith,  1  Denio  (N.  Y.)  207.  If  a  nolle  prose- 
qui is  entered  without  the  prisoner's  consent 
after  issue  is  joined  and  the  jury  sworn,  it 
is  a  bar  to  a  subsequent  indictment  for  the 
same  offence;  Franklin  v.  State,  85  Ga.  570, 
11  S.  E.  87G;  but  the  jeopardy  does  not  begin 
until  the  jury  is  sworn,  prior  to  that  a  nol. 
pros,  may  be  entered  without  prejudice; 
State  v.  Paterno,  43  L.  Ann.  514,  9  South. 
442 ;  a  nol.  pros,  of  two  of  three  indictments 
is  no  bar  to  a  prosecution  under  the  third ; 
O'Brien  v.  State,  91  Ala.  25,  8  South.  5G0.  In 
Missouri  the  conviction  of  murder  in  the  sec- 
ond degree,  under  an  indictment  for  murder 
in  the  first  degree,  constitutes  no  bar  to  trial 
and  conviction  for  murder  in  the  first  degree, 
upon  a  new  trial,  when  the  first  verdict  has 
been  set  aside;  State  v.  Anderson,  89  Mo. 
312,  1  S.  W.  135. 

Proceedings  by  state  tribunals  are  no  bar 
to  court-niai'tial  instituted  by  the  military 
authorities  of  the  United  States ;  3  Opin. 
Atty.-Genl.  750;  Stiener's  Case,  6  id.  413; 
but  a  judgment  of  conviction  by  a  military 
court,  established  by  law  in  an  insurgent 
state,  is  a  bar  to  a  subsequent  prosecution  by 
a  state  court  for  the  same  offence ;  Coleman 
v.  Tennessee,  97  U.  S.  509,  24  L.  Ed.  HIS. 
See  Courts-Martial. 

The  plea  must  set  out  the  former  record, 
and  show  the  identity  of  the  offence  and  of 
the  person  by  proper  averments;  Hawk.  PI. 
Cr.  b.  2,  c.  3G ;  Atkins  v.  State,  1G  Ark.  5GS ; 
Wilson  v.  State,  24  Conn.  57. 

The  true  test  of  whether  a  plea  of  autre- 
fois acquit  or  autrefois  convict  is  a  sufficient 
bar  in  any  particular  case  is  whether  the 
evidence  necessary  to  support  the  second  in- 
dictment would  have  been  sufficient  to  pro- 
cure a  legal  conviction  upon  the  first;  1 
Bish.  Cr.  L.  1012;  3  B.  &  C.  502;  Com.  v. 
Roby,  12  Pick.  (Mass.)  504;  State  v.  Wil- 
liams, 45  La.  Ann.  93G,  12  South.  932.  Thus, 
if  a  prisoner  indicted  for  burglariously 
breaking  and  entering  a  house  and  stealing 
therein  certain  goods  of  A  is  acquitted,  he 
cannot  plead  this  acquittal  in  bar  of  a  sub- 
sequent indictment  for  burglariously  break- 
ing and  entering  the  same  house  and  steal- 
ing  other  goods   of  B ;   2   Leach   718,   719; 


Alexander  v.   State,  21  Tex.  App.  40G, 
W.  139,  57  Am.  Rep.  G17. 

The  plea  of  autrefois  acquit  involve- 
tions  of  mixed  law  and  fa<  t,  and  is  properly 
referred   to    the   jury    when    not   demurrable 
on  its  face;   State  v.  Williams,  45  La.   Ann. 
93G,  12  South.  932. 

The  plea  in  the  celebrated  case  of  Regina 
v.  Bird,  5  Cox   Cr.  Cas.  12,  Tempi.  &  M 
2  Den.  Cr.  Cas.  224,  is  of  peculiar  value  as  a 
precedent. 

See  Jeopardy. 

AUTREFOIS  ATTAINT  (Fr.  formerly  at- 
tainted). A  plea  that  the  defendant  has 
been  attainted  for  one  felony,  and  cannot, 
therefore,  be  criminally  prosecuted  for  an- 
other; 4  Bla.  Com.  33G ;  12  Mod.  109;  R.  & 
R.  268.  This  is  not  a  good  plea  in  bar  in 
the  United  States,  nor  in  England  in  mod- 
ern law;  1  Bish.  Cr.  L.  §  G92 ;  Singleton  v. 
State,  71  Miss.  782,  16  South.  295,  42  Am. 
St.  Rep.  488;  Gaines  v.  State  I  S.  W. 

G23;  contra.  Ex  parte  Myers,  -14  Mo.  279; 
State  v.  Jolly,  9G  Mo.  435,  9  S.  W.  S97.  See 
State  v.  McCarty,  1  Bay   (S.  C.)   334. 

AUTREFOIS  CONVICT  (Fr.  formerly  con- 
victed). A  plea  made  by  a  defendant  in- 
dicted for  a  crime  or  misdemeanor,  that  he 
has  formerly  been  tried  and  convicted  of  the 
same. 

This  plea  is  substantially  the  same  in  form 
as  the  plea  of  autrefois  acquit,  and  is 
grounded  on  the  same  principle,  viz.  :  that 
no  man's  life  or  liberty  shall  be  twice  put 
in  jeopardy  for  the  same  offence;  Whart 
Cr.  PI.  §  435;  1  Bish.  Cr.  Law  g  651  :  State 
v.  Cooper.  13  X.  J.  L.  361,  25  Am.  Dec.  490; 
U.  S.  v.  Keen,  1  McLean  429,  Fed.  Cas.  No. 
15,510;  State  v.  Nelson,  7  Ala.  610;  State  v. 
Chaffin.  2  Swan  (Tenn.)  493;  State  v.  Par- 
ish. 43  Wis.  395. 

A  plea  of  autrefois  convict,  which  shows 
that  the  judgment  on  the  former  indictment 
has  been  reversed  for  error  in  the  judgment, 
is  not  a  good  bar  to  another  indictment  for 
the  same  offence;  Cooley's  Const.  Lim.  326 ; 
Territory  v.  Dorman.  1  Ariz.  56,  2.".  Pac.  516; 
People  v.  Schmidt,  64  Cal.  260,  30  Par.  814; 
State  v.  Rhodes.  112  N.  C.  857,  17  s.  E.  164; 
otherwise,  if  the  reversal  were  not  for  In- 
sufficiency in  the  indictment  nor  for  error 
at  the  trial,  but  for  matter  subsequent,  and 
dehors  both  the  conviction  and  the  judg- 
ment; Hartung  v.  People.  26  N.  Y.  167.  a 
prior  conviction  before  a  justice  of  the  peace. 
and  a  performance  of  the  sentence,  consti- 
tute a  bar  to  an  indictment  for  the  same  of- 
fence,  although  the  complaint  on  which  the 
justice  proceeded  was  so  defective  that  his 
judgment  might  have  been  reversed  for  er- 
ror; Com.  v.  Loud,  3  Mete.  (Mass.)  :;28,  37 
Am.  Dec.  139.  Where  a  person  has  been  con- 
victed for  failing  to  support  his  wife  and  be- 
ing disorderly,  it  is  no  bar  to  a  second  pros- 
ecution on  a  similar  charge,   where  at   the 


AUTREFOIS  CONVICT 


298 


AVER 


time  of  the  second  offence  he  was  not  in 
prison  on  account  of  his  first  sentence;  Peo- 
ple v.  Hodgson,  126  N.  Y.  647,  27  N.  E.  378. 
Where  one  has  been  convicted  of  an  assault 
but  discharged  without  sentence  on  giving 
security  for  good  behavior,  he  cannot  after- 
wards be  convicted  on  an  indictment  for  the 
same  assault ;  24  Q.  B.  Div.  423.  See  Autre- 
fois Acquit. 

A  U  X  I L I  U  M  (Lat.) .  An  aid ;  services  paid 
by  the  tenant  to  his  lord.  Auxilium  ad  ftli- 
um  militem  faciendum,  vel  ad  filiam  mari- 
tandam.  (An  aid  for  making  the  lord's  son 
a  knight,  or  for  marrying  his  daughter.) 
Fitzh.  Nat.  Brev.  62. 

AUXILIUM  CURI/E.  An  order  of  the 
court  summoning  one  party,  at  the  suit  and 
request  of  another,  to  appear  and  warrant 
something.     Kenn.  Par.  Ant.  477. 

AUXILIUM  REGIS.  A  subsidy  paid  to 
the  king.     Spelman. 

AUXILIUM  VICE  C0M1TI.  An  ancient 
duty  paid  to  sheriffs.     Cowell. 

AVAILABLE.  Capable  of  being  used; 
valid  or  advantageous. 

Available  means.  That  numerous  class  of 
securities  which  are  known  in  the  mercan- 
tile world  as  representatives  of  value  easily 
converted  into  money,  but  not  money.  Brig- 
ham  v.  Tillinghast,  13  N.  Y.  218. 

AVAILS.  Profits  or  proceeds,  as  the 
avails  of  a  sale  at  auction.     Webst.  Diet. 

With  reference  to  wills  it  applies  to  the 
proceeds  of  an  estate  after  the  debts  have 
been  paid;  McNaughton  v.  McNaughton,  34 
N.  Y.  201 ;  Allen  v.  De  Witt,  3  id.  276. 

AVAL.  In  Canadian  Law.  A  contract  of 
suretyship  or  guarantee  on  a  promissory 
note.     1  Low.  C.  221 ;  9  id.  360. 

In  French  Law.  The  guaranty  of  a  bill  of 
exchange;  so  called  because  usually  placed 
at  the  foot  or  bottom  (aval)  of  the  bill.  Sto. 
Bills  §§  394,  454.  See  11  Harv.  L.  Rev.  55; 
Indorsement. 

AVARIA,  AVARIE.  Average;  the  loss 
and  damage  suffered  in  the  course  of  a  navi- 
gation.    Pothier,   Marit.   Lounge  105. 

AVENAGE.  A  certain  quantity  of  oats 
paid  by  a  tenant  to  his  landlord  as  a  rent 
or  in  lieu  of  other  duties.    Jacob,  L.  Diet 

AVENTURE.  A  mischance  causing  the 
death  of  a  man,  as  by  drowning,  or  being 
killed  suddenly  without  felony.  Co.  Litt. 
391 ;  Whishaw. 

AVER.    To  assert.     See  Averment. 

To  make  or  prove  true ;  to  verify. 

The  defendant  will  offer  to  aver.  Cowell ; 
Co.  Litt.  3621*. 

Cattle  of  any  kind.  Cowell,  Averia;  Kel- 
ham. 

Aver  et  tenir.    To  have  and  to  hold. 

Aver  corn.  A  rent  reserved  to  religious  houses, 
to  be  paid  in  corn.  Corn  drawn  by  the  tenant's 
cattle.     CowelL 


Aver-land.  Land  ploughed  by  the  tenant  for  the 
proper  use  of  the  lord  of  the  soil.     Blount. 

Aver-penny.  Money  paid  to  the  king's  averages 
to  be  free  therefrom.     Termes  de  la  Ley. 

Aver-silver.    A  rent  formerly  so  called.    Cowell. 

AVERA.  A  day's  work  of  a  ploughman, 
formerly  valued  at  eight  pence.  Jacob,  L. 
Diet. 

AVERAGE.  In  insurance  law  this  is  gen- 
eral, particular,  or  petty. 

General  Average  (also  called  gross)  con- 
sists of  expense  purposely  incurred,  sacrifice 
made,  or  damage  sustained,  for  the  common 
safety  of  the  vessel,  freight  and  cargo,  or 
two  of  them,  at  risk,  and  is  to  be  contributed 
for  by  the  several  interests  in  the  propor- 
tion of  their  respective  values  exposed  to  the 
common  danger,  and  ultimately  surviving, 
including  the  amount  of  expense,  sacrifice,  or 
damage  so  incurred  in  the  contributory  val- 
ue; 2  Phill.  Ins.  §  1269;  and  see  Code  de 
Com.  tit.  xi. ;  Aluzet,  Trait,  des  Av.  cxx. ; 
Sturgess  v.  Cary,  2  Curt.  C.  C.  59,  Fed.  Cas. 
No.  13,572;  Greely  v.  Ins.  Co.,  9  Cush. 
(Mass.)  415;  McLoon's  Adm'r  v.  Cummings, 
73  Pa.  98;  Star  of  Hope  v.  Annan,  9  Wall. 
(U.  S.)  203,  19  L.  Ed.  638;  Bailey,  Gen.  Av. ; 
2  Pars.  Mar.  Law,  ch.  xi. ;  Stevens,  Av. ; 
Benecke,  Av. ;  Pothier,  Av. ;  Lex  Rhodia,  Dig. 
14.  2.  1. 

General  average  is  a  comparatively  mod- 
ern expression.  The  early  writers  expressed 
the  same  idea  by  the  words  "averidge,"  or 
"contribution,"  which  with  them  were  syn- 
onymous terms ;  21  L.  Quart.  Rev.  155.  In 
the  common  memorandum  which  was  added 
to  marine  policies  about  1749,  the  words, 
general  and  average,  occur  for  the  first  time; 
id.;  Loundes,  Mar.  Ins.  206  (2d  ed.  1885). 
By  this  time  the  word  average  had  acquired 
the  dual  meaning  still  attaching  to  it:  a 
particular,  partial  loss,  and  a  contribution 
to  the  general  loss ;  it  was  necessary  to  in- 
sert the  words  "unless  general"  in  order  to 
prevent  the  operation  of  the  exception  being 
extended  to  losses  of  the  latter  class.  Lord 
Mansfield  held  that  the  word  "unless"  meant 
the  same  as  "except" ;  3  Burr.  1550.  Lord 
Esher,  M.  R.,  said  the  true  construction  of 
the  words  "free  from  average  unless  gener- 
al" was  free  from  partial  loss  unless  it  be  a 
general  average  loss;  22  Q.  B.  D.  580.  The 
result  of  these  decisions  is  that,  while  the 
assurer  is  to  be  excused  from  paying  a  loss 
of  the  nature  of  particular  average,  his 
pre-existing  obligation  to  contribute  to  gen- 
eral average,  though  acknowledged,  is  left 
untouched ;  21  L.  Q.  R.  155. 

General  average  is  recoverable  for  loss  by 
jettison ;  19  C.  B.  N.  S.  563 ;  for  ship's  stores 
used  to  fire  the  donkey-engine  which  worked 
the  pumps;  7  L.  R.  Ex.  39;  2  Q.  B.  D.  91, 
295;  and  for  damage  to  a  cargo  caused  by 
pouring  on  water  to  extinguish  a  fire;  8  Q. 
B.  D.  653 ;  The  Roanoke,  46  Fed.  297 ;  id.,  53 
Fed.  270 ;  id.,  59  Fed.  161,  8  C.  C.  A.  67. 
Prior  to  the  Harter  Act,  a  common  carrier 


AVERAGE 


299 


AVERAGE 


by  sea  could  not,  by  any  agreement  in  tbe  bill 
of  lading,  exempt  himself  from  responding  to 
tbe  owner  of  cargo  for  damages  arising  from 
the  negligence  of  the  master  or  crew  of  the 
vessel ;  Liverpool  &  Great  Western  Steam 
Co.  v.  Ins.  Co.,  129  U.  S.  397,  9  Sup.  Ct  4G9, 
32  L.  Ed.  788 ;  New  York  C.  R.  Co.  v.  Lock- 
wood,  17  Wall.  (U.  S.)  357,  21  L.  Ed.  G27. 
That  act  absolved  the  shipowner  from  re- 
sponsibility for  the  negligence  of  the  master 
and  crew  under  certain  circumstances.  By 
its  first  and  second  sections  shipowners  are 
prohibited  from  inserting  in  their  bills  of 
lading  agreements  limiting  their  liability  in 
certain  respects.  It  was  held  under  this 
act  that  if  a  vessel,  seaworthy  at  the  begin- 
ning of  the  voyage,  is  afterwards  stranded 
by  the  negligence  of  her  master,  the  ship- 
owner, who  has  exercised  due  diligence  to 
make  his  vessel  seaworthy,  properly  manned, 
equipped  and  supplied,  under  its  provisions 
has  no  right  to  general  average  contribution 
for  sacrifices  made  and  suffered  by  him  sub- 
sequent to  the  stranding,  in  successful  ef- 
forts to  save  vessel,  freight,  and  cargo;  The 
Irrawaddy,  171  U.  S.  187,  18  Sup.  Ct  831, 
43  L.  Ed.  130.  This  case  was  distinguished 
in  a  later  case  where  it  was  held  that  a  gen- 
eral average  agreement  inserted  in  bills  of 
lading  providing  that  if  the  owner  of  a  ship 
shall  have  exercised  due  diligence  to  make 
the  ship  in  all  respects  seaworthy  and  prop- 
erly manned,  equipped  and  supplied,  the  car- 
go shall  contribute  in  general  average  with 
the  shipowner  even  if  the  loss  resulted  from 
negligence  in  the  management  of  the  ship, 
is  valid  under  the  Harter  Act,  and  entitles 
the  shipowner  to  collect  a  general  average 
contribution  from  the  cargo  owners  in  re- 
spect to  sacrifices  made  and  extraordinary 
expenses  incurred  by  him  for  the  common 
benefit  and  safety  of  ship,  cargo,  and  freight 
subsequent  to  a  negligent  stranding ;  The 
Jason,  225  U.  S.  32,  32  Sup.  Ct  560,  56  L. 
Ed.  969.  That  in  view  of  the  provisions  of 
section  3  of  the  act  and  of  the  general  aver- 
age clause  the  cargo  owners  have  a  right  to 
contribution  from  the  shipowner  for  sacri- 
fices made  subsequent  to  negligent  stranding 
in  order  to  save  the  joint  interests  from  com- 
mon peril  is  held ;  The  Roanoke,  46  Fed.  297 ; 
id.,  59  Fed.  161 ;  The  Rapid  Transit,  52  Fed. 
320 ;  The  Santa  Ana,  154  Fed.  S00,  84  C.  C. 
A.  312.  There  is  a  similar  statute  in  Eng- 
land;  45  L.  J.  Q.  B.  646;  8  Q.  B.  D.  653; 
[1908]  1  K.  B.  51,  affirmed  [1908]  App.  Cas. 
431. 

Where  a  vessel  was  chartered  to  proceed 
to  a  foreign  port  and  there  take  on  a  cargo, 
freight  to  be  paid  on  the  completion  of  the 
voyage  home,  and  on  the  voyage  out  in  bal- 
last the  vessel  was  grounded  and  a  general 
average  sacrifice  made,  it  was  held  that, 
upon  the  subsequent  completion  of  the  voy- 
age and  the  payment  of  the  freight,  such 
freight  was  liable  to  contribute  to  the  gen- 
eral average  sacrifice;  [1901]  2  K.  B.  861; 
\ 


and  see  1  M.  &  S.  318;  The  Mary,  1  Sprague 
17,  Fed.  Cas.  No.  9,188;  15  Harv.  L.  Rev.  488. 

If  the  peril  is  caused  by  a  concea 
in  the  shipment  equally  unknown  to  the 
per  and   shipowner,    the   shipper  is   en 
to  the  benefit  of  contribution;  The  Win.   J. 
Quillan,  180  Fed.  681,  103  C.  C.  A.  G47. 

The  law  of  the  destination,  where  ship 
and  cargo  separate,  determines  the  right  of 
general  average;  Monsen  v.  Amsinck,  166 
Fed.  817. 

Insurance  is  not  a  part  of  the  owner's  in- 
terest in  a  ship,  and  in  case  of  general  aver- 
age, for  the  purpose  of  increasing  the  fund 
to  be  distributed,  the  Insurance  received  by 
him  should  not  be  added  to  the  value  of 
\vhat  was  saved;  The  Rapid  Transit.  52 
320;  The  City  of  Norwich,  118  D.  B.  468,  6 
Sup.  Ct.  1150,  30  L.  Ed.  134;  The  Scotland, 
118  U.  S.  507,  6  Sup.  Ct.  1174,  30  L.  Ed.  153. 

Average  particular  (also  called  partial 
loss)  is  a  loss  on  the  ship,  cargo,  or  freight, 
to  be  borne  by  the  owner  of  the  subject  on 
which  it  happens,  and  is  so  called  in  distinc- 
tion from  general  average;  and,  if  not  total, 
it  is  also  called  a  partial  loss;  2  Phill.  Ins. 
c.  xvi. ;  Stevens,  pt  1,  c.  2;  Arnould,  Mar. 
Ins.  953;  Code  de  Com.  1.  2,  t  11,  a.  403; 
Fothier,  Ass.  115;  Benecke  &  S.  Av.,  Phill. 
ed.  341. 

It  is  insured  against  in  marine  policies  in 
the  usual  forms  on  ship,  cargo,  or  freight, 
when  the  action  of  peril  is  extraordinary. 
and  the  damage  is  not  mere  wear  or  tear: 
and,  on  the  ship,  covers  loss  by  sails  split  or 
blown  away,  masts  sprung,  cables  parted, 
spars  carried  away,  planks  started,  change 
of  shape  by  strain,  loss  of  boat,  breaking  of 
sheathing  or  upper  works  or  timbers,  dam- 
age by  lightning  or  fire,  by  collision  or 
stranding,  or  in  defence  against  pinues  or 
enemies,  or  by  hostile  or  piratical  plunder: 
2  Phill.  Ins.  c.  xvi.;  Orrok  v.  Ins.  Co.,  21 
Pick.  (Mass.)  456,  32  Am.  Dec.  271;  Sewall 
v.  Ins.  Co.,  11  Tick.  (Mass.)  90;  7  C.  &  P. 
597;  3  id.  323;  Sage  v.  Ins.  Co.,  1  Conn.  239; 
Waller  v.  Ins.  Co.,  9  Mart.  O.  S.  (La.)  276; 
Fisk  v.  Ins.  Co.,  18  La.  77;  Perry  v.  Ins.  Co.. 
5  Ohio  306;  Webb  v.  Ins.  Co.,  6  Ohio  r><;: 
Ha llet  v.  Jenks,  3  Cra.  (U.  S.)  218.  2  I 
414;  Byrnes  v.  Ins.  Co.,  1  Cow.  |  N.  Y. 
Depau  v.  Ins.  Co.,  5  Cow.  (N.  T.)  <",::.  "I."  Am. 
Dec.  431;  Dunham  v.  Ins.  Co.,  11  Johns.  (N. 
Y.)  315,  6  Am.  Dec.  374. 

Particular  average  on  freight  may  be  by 
loss  of  the  ship,  or  the  cargo,  so  that  full 
freight  cannot  be  earned;  but  not  if  the 
goods,  though  damaged,  could  have  been  car- 
ried on  to  the  port  of  destination;  Coolidge 
v.  Ins.  Co.,  15  Mass.  .".II  ;  McGan  v.  Ins.  Co., 
23  Pick.  (Mass.)  405;  Bork  v.  Norton.  12  Mc- 
Lean, 423,  Fed.  ('as.  No.  1,659;  Jordan  v. 
I  O.,   1    Sto.   342,    Fed.    Cas.   No.    7,524; 

Charleston  Ins.  &  Trust  Co.  v.  Corner,  2 
Gill  (Md.)  410;  Saltus  v.  Ins.  Co.,  12 
Johns.    (N.  Y.)  107.  7  Am.  Dec.  290. 

Particular  average  on  goods  is  usually  ad- 


AVERAGE 


300 


AVERMENT 


justed  at  the  port  of  delivery  on  the  basis 
of  the  value  at  which  they  are  insured,  viz. : 
the  value  at  the  place  of  shipment,  unless  it 
is  otherwise  stipulated  in  the  policy ;  2  Burr. 
1167;  2  East  58;  12  id.  639;  3  B.  &  P.  308; 
Rankin  v.  Ins.  Co.,  1  Hall  (X.  Y.)  GS2 ;  New- 
lin  v.  Ins.  Co.,  20  Pa.  312;  36  E.  L.  &  Eq. 
198;  3  Taunt.  1G2.     See  Salvage;  Loss. 

A  particular  average  on  profits  is,  by  the 
English  custom,  adjusted  upon  the  basis  of 
the  profits  which  would  have  been  realized 
at  the  port  of  destination.  In  the  United 
States  the  adjustment  is  usually  at  the  same 
rate  as  on  the  goods  the  profits  on  which  are 
the  subject  of  the  insurance;  2  Pars.  Ins. 
399;  Fosdick  v.  Ins.  Co.,  3  Day  (Conn.)  108; 
Alsop  v.  Ins.  Co.,  1  Sumn.  451,  Fed.  Cas.  No. 
262;  Evans  v.  Ins.  Co.,  6  R.  I.  47. 

Petty  Average  consists  of  small  charges 
which  were  formerly  assessed  upon  the  car- 
go, viz. ;  pilotage,  towage,  light-money,  bea- 
conage, anchor-age,  bridge-toll,  quarantine, 
pier-money.  Le  Guidon,  c.  5,  a.  13 ;  Weyt,  de 
A.  3,  4;  Weskett,  art  Petty  Av. ;  2  Phill. 
Ins.  §  1269,  n.  1;  2  Arnould,  Mar.  Ins.  927. 

The  doctrine  of  general  average  which  has 
obtained  in  maritime  insurance  is  not  appli- 
cable to  fire  insurance;  May,  Ins.  §  421  o. 

AVERIA    (Eat).     Cattle;   working  cattle. 

Averia    carucce    (draft-cattle)    are    exempt 

from  distress;    3  Bla.  Com.  9;    4  Term  566. 

AVERIIS  CAPTIS  IN  WITHERNAM.  A 
writ  which  lies  in  favor  of  a  man  whose  cat- 
tle have  been  unlawfully  taken  by  another, 
and  driven  out  of  the  country  where  they 
were  taken,  so  that  they  cannot  be  replevied. 

It  issues  against  the  wrong-doer  to  take 
his  cattle  for  the  plaintiff's  use.  Reg.  Brev. 
82. 

AVERIUM  (Lat).  Goods;  property.  A 
beast  of  burden.    Spelman,  Gloss. 

AVERMENT.  A  positive  statement  of 
facts,  as  opposed  to  an  argumentative  or  in- 
ferential one.    Bacon,  Abr.  Pleas,  B. 

Averments  were  formerly  said  to  be  general  and 
particular ;  but  only  particular  averments  are 
found   in  modern   pleading.     1  Chit.  PI.   277. 

Particular  averments  are  the  assertions  of 
particular  facts. 

There  must  be  an  averment  of  every  substantive 
material  fact  on  which  the  party  relies,  so  that  it 
may  be  replied  to  by  the  opposite  party. 

Negative  averments  are  those  in  which  a 
negative  is  used. 

Generally,  under  the  rules  of  pleading,  the  party 
asserting  the  affirmative  must  prove  it ;  but  an 
averment  of  illegitimacy,  2  Sehvyn,  Nisi  P.  709,  or 
criminal  neglect  of  duty,  must  be  proven;  U.  S. 
v.  Hay  ward,  2  Gall.  498,  Fed.  Cas.  No.  15,336;  Hart- 
well  v.  Root,  19  Johns.  (N.  Y.)  315,  10  Am.  Dec. 
232;  Com.  v.  Stow,  1  Mass.  54;  10  East  211;  3 
Campb.  10  ;    3  B.  &  P.  302  ;    1  Greenl.  Ev.   §  80. 

Immaterial  and  impertinent  averments 
(which  are  synonymous,  5  D.  &  R.  209)  are 
those  which  need  not  be  made,  and,  if  made, 
need  not  be  proved.  The  allegation  of  de- 
ceit in  the  seller  of  goods  in  an  action  on  the 


warranty  is  such  an  averment;  2  East  446; 
Panton  v.  Holland,  17  Johns.  (N.  T.)  92,  8 
Am.  Dec.  369. 

Unnecessary  averments  are  statements  of 
matters  which  need  not  be  alleged,  but  which, 
if  alleged,  must  be  proved.     Carth.  200. 

General  averments  are  almost  always  of 
the  same  form.  The  most  common  form  of 
making  particular  averments  is  in  express 
and  direct  words,  for  example:  And  the  par- 
ty avers,  or  in  fact  saith,  or  although,  or  be- 
cause, or  with  this  that,  or  being,  etc.  But 
they  need  not  be  in  these  words ;  for  any 
words  which  necessarily  imply  the  matter 
intended  to  be  averred  are  sufficient. 

AVERRARE.  To  carry  goods  in  a  wagon 
or  upon  loaded  horses;  a  duty  required  of 
some  customary  tenants.    Jacob  L.  Diet. 

AVERSI0  (Lat.).  An  averting;  a  turning 
away.    A  sale  in  gross  or  in  bulk. 

Letting  a  house  altogether,  instead  of  in 
chambers.    4  Kent  517. 

Aversio  periculi.  A  turning  away  of  peril. 
Used  of  a  contract  of  insurance.    3  Kent  263. 

A  VET.  In  Scotch  Law.  To  abet  or  assist. 
Tomlin,  Diet. 

AVIATICUS    (Lat).       In    Civil    Law.       A 

grandson. 

AVIATION.  The  air  space  above  the  high 
seas  and  unoccupied  territory  is  admittedly 
free  to  all  nations  and  persons.  It  is  with 
the  air  space  above  territorial  lands  and  wa- 
ters that  conflicting  views  of  the  rights  of 
nations  are  concerned.  According  to  Hazel- 
tine  (Law  of  the  Air),  there  are  the  freedom- 
of-the-air  theories,  which  comprise  abso- 
lute and  partial  freedom  either  by  lateral 
zone  divisions  or  limited  exercise  of  rights; 
and  the  sovereignty-of-the-air  theories  which 
may  also  be  classified  into  absolute  sovereign- 
ty and  limited  sovereignty  groups.  The  zone 
and  limited  sovereignty  theories  are  usually 
based  on  analogy  to  the  three  mile  limit  of 
sovereignty  over  the  high  seas.  This  analogy 
is  obviously  unsound  both  on  account  of  the 
unsafe  condition  of  states  if  alien  and  hostile 
air-craft  were  permitted  to  sail  over  them 
above  a  prescribed  height,  and  the  difficulty 
of  calculating  the  exact  or  even  approximate 
height  of  air-craft.  The  absolute  sovereignty 
theory  is  probably  better  justified  on  reason 
and  practicality.  Rights  of  aliens  to  unhin- 
dered passage  and  rules  for  alighting  could 
be  settled  by  international  agreement.  See, 4 
Am.  J.  Int.  L.  95 ;  45  L.  J.  402 ;  126  L.  T. 
168.  It  is  said  to  be  clear  that  the  territo- 
rial jurisdiction  of  a  state  must  extend  to 
the  atmosphere  above  its  soil  if  the  state  is 
to  be  able  to  protect  itself  from  airships 
which  would  otherwise  have  it  in  their  power 
to  violate  the  laws  of  the  state,  or  to  inflict 
injury  upon  the  citizens  of  the  state  in  case 
of  accident  to  the  airship.  On  the  other 
hand,  it  is  reasonable  that  a  state  should 
allow  the  innocent  passage  of  foreign  air- 


AVIATION 


301 


AVIATION 


ships  through  its  territorial  atmosphere,  sub- 
ject to  the  domestic  regulations  imposed  up- 
on the  aerial  traffic  of  its  own  citizens.  In 
this  respect  the  territorial  atmosphere  of  a 
state  may  be  considered  as  governed  by  Lbe 
same  rules  as  the  territorial  waters  of  the 
state.     Hershey  232. 

With  regard  to  the  rights  of  a  landowner 
in  the  air  space  above  his  land,  there  are  al- 
so divergent  views  of  absolute  and  limited 
rights.  The  Roman  Law  regarded  the  air 
as  res  publico,,  free  to  all  persons.  The 
French  Code,  on  the  other  hand,  defines  land 
as  including  everything  above  and  below  the 
surface.  The  German  Imperial  Code  adopts 
this  same  theory  but  limits  the  landowner's 
right  to  exclude  persons  from  using  the  air 
space,  to  his  actual  interest  in  such  exclu- 
sion.   The  Swiss  Code  is  similar. 

At  common  law  the  old  maxim  of  cujus  est 
solum,  ejus  est  usque  ad  caelum  has  led  to 
much  confusion.  In  its  origin  it  had  refer- 
ence to  the  right  of  the  owner  to  have  the 
air  space  above  his  land  remain  in  its  natural 
state  and  to  have  excluded  therefrom  any- 
thing which  would  detract  from  his  enjoy- 
ment of  the  land.  4  Am.  J.  Int.  L.  95 ;  71 
Cent.  L.  J.  1 ;  46  Can.  L.  J.  4S0.  The  flying 
of  fowls,  the  passage  of  smoke  and  of  wire- 
less messages  over  another's  land  have  never 
suggested  such  a  conflict  with  the  maxim  as 
would  amount  to  a  trespass.  Even  naviga- 
tion by  balloons  and  aeroplanes  for  a  cen- 
tury or  more  has  been  tacitly  permitted.  See 
4  Camp.  219 ;  3  Bengal  L.  R.  43.  But  such 
passage  in  every  instance  must  not  by  its 
frequency  amount  to  a  nuisance.  The  degree 
of  peril  and  inconvenience  to  the  landowner 
defines  his  legal  rights ;  14  Law  .Notes  69 ; 
16  Case  and  Comment  216. 

Under  the  commerce  clause  in  the  United 
States  constitution  it  would  seem  that  Con- 
gress has  power  to  regulate  aerial  naviga- 
tion; in  the  absence  of  such  regulation,  the 
individual  states  may  legislate  for  their  own 
exclusive  territorial  air  space. 

As  to  the  liability  of  aviators  for  accidents 
it  has  been  held  that  they  are  liable  for  all 
damage  both  direct  and  consequential ;  Guille 
v.  Swan,  19  Johns.  (N.  Y.)  381,  10  Am.  Dec. 
234;  Conney  v.  Ass'n,  76  N.  II.  60,  71)  Atl. 
517.  This  result  is  based  on  the  view  that 
all  aerovehicles  are  dangerous  devices  and  as 
such  are  operated  at  the  aviator's  peril.  It 
is  conceivable  however  that  as  aerial  science 
develops,  so  that  the  present  dangers  and 
uncertainties  are  obviated,  the  stricter  rule 
of  liability  will  give  way  to  one  holding  the 
aviator  liable  only  for  negligence.  It  has 
been  urged  that  the  more  liberal  rule  would 
aid  materially  in  the  development  of  aerial 
science. 

The  intentional  or  negligent  dropping  and 
throwing  articles  overboard,  which  fall  on 
private  property  and  cause  damage,  is  gen- 
erally subjected  to  heavy  liability.    There  is 


no  inherent  right  to  alight  on  private  prop- 
erty without  the  consent  of  the  owner,  though 
leptlon  might  possibly  be  allowed  where 
an  act  of  God  or  inevitable  accident  is  the 
cause. 

Every    aeronaut   shall    be    responsible    for 
all  damages  suffered  in  this  state  by  ai 
son  from  injuries  caused   by   any    v.,.. 
an   airship   directed  by  such   aeronaut;    and 
if  he  be  the  agent  or  employee  of  anotl 
making  such  a   voyage,  his  principal  or  em- 
ployer shall  be  liable  for  such  damage.    Conn. 
Public  Acts  of  1911,  p.  135L 

A  Massachusetts  act  of  May  7,  1913, 
lates  the  use  of  air-craft;  makes  provision 
for  the  license  of  aviators  after  examination 
and  registration;  prescribes  rules  of  the  air 
for  meeting  and  overtaking  corresponding 
with  the  marine  practice.  Air  machines  are 
forbidden  to  fly  over  municipalities,  i 
at  prescribed  altitudes,  or  to  fly  over  crowds 
of  people.  Aviators  are  held  liable  for  inju- 
ries resulting  from  Hying  unless  they  can 
demonstrate  that  they  had  taken  every  rea- 
sonable precaution  to  prevent  injury.  Drop- 
ping missies  without  special  permission  is 
forbidden,  and  also  binding  on  public  prop- 
erty without  permission. 

See  generally  Lycklama,  Air  Sovere lg 
Hazeltine,  Law  of  the  Air;  Davids,   Law  of 
Motor  Vehicles,  chap.  1!». 

The  "Sovereignty  of  the  Air"  is  treated  by 
Blewett    Lee,    In    Report   of    i  e   Bar 

Ass'n    (1913).      He   cites:      Weill,    The    Air- 
Ship    in    Local    Law,    etc.     (Zurich, 
Revue  Juridicque  Internat.  de  la  Loco: 
Aerienne,     Vol.     II.;     Catellani,     II     Diritto 
Aereo;  Proceedings  in  Inter-Nat  Fair  Asso- 
ciation   (1912,   Paris  Conference). 

AVOCAT.  In  French  Law.  A  barrister  or 
advocate. 

AVOIDANCE.  A  making  void,  useless,  or 
empty. 

In  Ecclesiastical  Law.  It  exists  when  a 
benefice  becomes  vacant  for  want  of  an  in- 
cumbent. 

In  Pleading.  Repelling  or  excluding  the 
conclusions  or  implications  arising  from  the 
admission  of  the  truth  of  the  allegations  of 
the  opposite  party.  See  Confession  ani> 
Avoioance. 

AVOIRDUPOIS  (Fr.).  The  name  of  a  sys- 
tem of  weight. 

This  kind  of  weight  is  so  named  in  distinction 
from  the  Troy  weight.  One  pound  avoirdupois  con- 
tains seven  thousand  grains  Troy;  that  is,  fourteen 
ounces,  eleven  pennyweights,  and  sixteen  grains 
Troy;  a  pound  avoirdupois  contains  sixteen  ounces; 
and  an  ounce  sixteen  drachms.  Thirty-two  cubic 
feet  of  pure  spring-water,  at  the  temperature  of 
fifty-six  degrees  of  Fahrenheit's  thermometer,  make 
a  ton  of  two  thousand  pounds  avoirdupois,  or  two 
thousand  two  hundred  and  forty  pounds  net  weight. 
Dane,  Abr.  c  211,  art.  12,  §  6.  The  avoirdupois 
ounce  is  less  than  the  Troy  ounce  in  the  proportion 
of  72  to  79  ;  though  the  pound  is  greater.  Encyc. 
Amer.  Avoirdupois.  For  the  derivation  of  this 
phrase,  see  Barrington,  Stat.  206.  See  the  Report 
of  Secretary  of   State  of  the   United   States   to    the 


AVOIRDUPOIS 


302 


AVOWTERER 


Senate,  February  22,  1S21,  pp.  44,  72,  76,  79,  81,  87,  for 
a  learned  exposition  of  the  whole  subject.  See 
Weight. 

AVOUCHER.     See  Voucher. 

AVOUE.  In  French  and  Canadian  Law.  A 
solicitor  or  attorney. 

AVOW.  To  acknowledge  the  commission 
of  an  act  and  claim  that  it  was  done  with 
right.    3  Bla.  Com.  150. 

To  make  an  avowry.  For  example,  when 
replevin  is  brought  for  a  thing  distrained, 
and  the  party  taking  claims  that  he  had  a 
right  to  make  the  distress,  he  is  said  to  avow. 
See  Fleta,  1.  1,  c.  4;  Cunningham,  Diet; 
Avowry;  Justification. 

AVOWANT.    One  who  makes  an  avowry. 

AVOWEE.  An  advocate  of  a  church  bene- 
fice. 

AVOWRY.  The  answer  of  defendant  in  an 
action  of  replevin  brought  to  recover  prop- 
erty taken  in  distress,  in  which  he  acknowl- 
edges the  taking,  and,  setting  forth  the  cause 
thereof,  claims  a  right  in  himself  or  his 
wife  to  do  so.    Lawes,  PI.  35. 

A  justification  is  made  where  the  defendant  shows 
that  the  plaintiff  had  no  property  by  showing  either 
that  it  was  the  defendant's  or  some  third  person's, 
or  where  he  shows  that  he  took  it  by  a  right  which 
was  sufficient  at  the  time  of  taking  though  not  sub- 
sisting at  the  time  of  answer.  The  avowry  admits 
the  property  to  have  been  the  plaintiff's,  and  shows 
a  right  which  had  then  accrued,  and  still  subsists, 
to  make  such  caption.     See  2  W.  Jones  25. 

An  avowry  is  sometimes  said  to  be  in  the 
nature  of  an  action  or  of  a  declaration,  so 
that  privity  of  estate  is  necessary ;  Co.  Litt. 
320  a;  Blaine's  Lessee  v.  Chambers,  1  S.  & 
R.  (Pa.)  170.  There  is  no  general  issue  upon 
an  avowry ;  and  it  cannot  be  traversed  cumu- 
latively ;  Hamilton  v.  Elliott,  5  S.  &  R.  (Pa.) 
377.  Alienation  cannot  be  replied  to  it  with- 
out notice ;  for  the  tenure  is  deemed  to  ex- 
ist for  the  purposes  of  an  avowry  till  notice 
be  given  of  the  alienation;   Hamm.  Part.  131. 

The  object  of  an  avowry  is  to  secure  the 
return  of  the  property,  that  it  may  remain  as 
a  pledge ;  see  2  W.  Jones  25 ;  and  to  this 
extent  it  makes  the  defendant  a  plaintiff.  It 
may  be  made  for  rents,  services,  tolls ;  State 
v.  Patrick,  14  N.  C.  478;  for  cattle  taken, 
damage  feasant,  and  for  heriots,  and  for  such 
rights  wherever  they  exist..  See  Gilbert, 
Distr.  176  et  seq.;  1  Chit.  PI.  436;  Coinyns, 
Dig.  Pleader,  3  K. 


AVOWTERER.  In  English  Law.  An  adul- 
terer with  whom  a  married  woman  continues 
in  adultery.     Termes  de  la  Ley. 

AVOWTRY.  In  English  Law.  The  crime 
of  adultery. 

AVULSION.  The  removal  of  a  consider- 
able quantity  of  soil  from  the  land  of  one 
man  and  its  deposit  upon  or  annexation  to 
the  land  of  another,  suddenly  and  by  the 
perceptible  action  of  water.  2  Washb.  R.  P. 
452. 

In  such  case  the  property  belongs  to  the 
first  owner;  Bract.  221;  Hargr.  Tract,  de 
Jii/re  Mar.;  Schultes,  Aq.  Rights  115;  Bou- 
vier  v.  Stricklett,  40  Neb.  792,  59  N.  W.  550. 
Avulsion  by  the  Missouri  river,  the  middle 
of  whose  channel  forms  the  boundary  line 
between  the  states  of  Missouri  and  Nebraska, 
works  no  change  in  such  boundary,  but  leaves 
it  in  the  centre  line  of  the  old  channel ;  Mis- 
souri v.  Nebraska,  196  U.  S.  23,  25  Sup.  Ct. 
155,  49  L.  Ed.  372;  Nebraska  v.  Iowa,  143 
U.  S.  361,  12  Sup.  Ct.  396,  36  L.  Ed.  186. 

See  Accretion;  Alluvion;  Riparian  Pro- 
prietors; Reliction. 

AVUNCULUS.  In  Civil  Law.  A  mother's 
brother.     2  Bla.  Com.  230. 

AWARD.  The  decision  of  arbitrators  or 
referees  of  a  case  submitted  for  arbitration 
under  agreement  of  the  parties  or  rule  of 
court.     See  Arbitration  and  Award. 

AWAY-GOING  CROP.  A  crop  sown  be- 
fore the  expiration  of  a  tenancy,  which  can- 
not ripen  until  after  its  expiration,  to  which, 
however,  the  tenant  is  entitled.  Broom, 
Max.  306.     See  Emblements. 


AWN-HINDE. 

Hinde. 


See     Third-Night-Awn- 


AY  ANT  CAUSE.  This  term,  which  is  used 
in  Louisiana,  signifies  one  to  whom  a  right 
has  been  assigned,  either  by  will,  gift,  sale, 
exchange,  or  the  like ;  an  assignee.  An 
ayant  cause  differs  from  an  heir  who  ac- 
quires the  right  by  inheritance.  8  Toullier, 
n.  245. 

AYUNTAMIENT0.     In      Spanish      Law.     A 

congress  of  persons;  the  municipal  council 
of  a  city  or  town.  1  White,  Rec.  416;  12 
Pet.  (U.  S.)  442,  notes. 


303 


BACK-WATER 


B 


B.    The  second  letter  of  the  alphabet. 
It  Is  used  to  denote  the  second  page  of  a 
folio,  and  also  as  an  abbreviation.     See  A. 

BABY  ACT.  A  term  of  reproach  originally 
applied  to  the  disability  of  infancy  when 
pleaded  by  an  adult  in  bar  of  recovery  upon 
a  contract  made  while  he  was  under  age, 
but  extends  to  any  plea  of  the  statute  of 
limitations.    Anderson's  Diet.  L. 

BACHELERIA.  The  commonalty  as  dis- 
tinguished from  the  baronage.  Cunningham, 
L.  Diet. 

BACHELOR.  In  modern  use,  one  who  has 
taken  the  first  degree  (baccalaureate)  in  the 
liberal  arts  and  sciences,  or  in  law,  medicine, 
or  divinity,  in  a  college  or  university. 

A  man  who  has  never  been  married. 

An  inferior  kind  of  knight. 

BACK-BOND.  A  bond  of  indemnification 
given  to  a  surety. 

In  Scotch  Law.  A  declaration  of  trust;  a 
defeasance ;  a  bond  given  by  one  who  is  ap- 
parently absolute  owner,  so  as  to  reduce  his 
right  to  that  of  a  trustee  or  holder  of  a 
bond  and  disposition  in  security.  Paterson, 
Oomp. 

BACK  CARRY.  In  forest  law,  the  crime 
of  having,  on  the  back,  game  unlawfully 
killed. 

BACK-WATER.  That  water  in  a  stream 
which,  in  consequence  of  some  obstruction 
below,  is  detained  or  checked  in  its  course,  or 
re-flows. 

The  term  is  usually  employed  to  designate 
the  water  which  is  turned  back,  by  a  dam 
erected  in  the  stream  below,  upon  the  wheel 
of  a  mill  above,  so  as  to  retard  its  revolu- 
tion. 

Every  riparian  proprietor  is  entitled  to 
the  benefit  of  the  water  in  its  natural  state. 
Another  such  proprietor  has  no  right  to  alter 
the  level  of  the  water,  either  where  it  enters 
or  where  it  leaves  his  property.  If  he  claims 
either  to  throw  the  water  back  above,  or  to 
diminish  the  quantity  which  is  to  descend 
below,  he  must,  in  order  to  maintain  his 
claim,  either  prove  an  actual  grant  or  license 
from  the  proprietors  affected  by  his  opera- 
tions, or  an  uninterrupted  enjoyment  for 
twenty  years.  If  he  cannot  maintain  his 
claim  in  either  of  these  ways,  he  is  liable 
for  damages  in  favor  of  the  injured  party, 
or  to  an  injunction  to  restrain  his  unlawful 
use  of  the  water;  1  B.  &  Ad.  258,  S74 ;  9 
Coke  59 ;  Brown  v.  Mfg.  Co.,  5  Gray  (Mass.) 
460;  Mertz  v.  Dorney,  25  Pa.  519;  Butz  v. 
Ihrie,  1  Rawle  (Pa.)  21S ;  Sherwood  v.  Burr, 
4  Day  (Conn.)  244,  4  Am.  Dec.  211 ;  Noyes  v. 
Stillman,  24  Conn.  15;  Gardner  v.  New- 
burgh,  2  Johns.  Ch.  (N.  Y.)  162,  7  Am.  Dec. 


526;    Watson  v.  Bartlett,  G2  X.  IT.  417; 
v.  Ward,  2  Gilm.  (111.)  285;    Bowman  v.  City 
Of  New  Orleans,  27  La.  Ann.  501;   McD< 
v.  Bacon,  3  Scam.  (111.)  432 ;    Johns  v.  Stev- 
ens, 3  Vt.  30S;    Tyler  v.  Wilkinson,  4  Mas. 
400,  Fed.  Cas.  No.  14,312;    Lincoln  v.  Chad- 
bourne,  56  Me.  197;    De  Vaughn  v.  Miner.  77 
Ga.  809,  1  S.  E.  433.    But  he  must  sbow  some 
actual,  appreciable  damage;    Garrett  v.  M<- 
Kie,  1  Rich.   (S.  C.)  444,  44  Am.  Dec. 
('balk  v.  McAlily,  11  Rich.  (S.  C.)  15.3;    con- 
tra, Hendrick  v.  Cook,  4  Ga.  241;    Graver  v. 
Sholl,   42  Pa.  67. 

A  riparian  owner  who  obstructs  a  stream, 
impeding  the  usual  flow  of  water  or  that 
caused  by  ordinary  freshets  and  causing  land 
to  be  overflowed,  becomes  liable ;  Bierer  v. 
Hurst,  155  Pa.  523,  26  Atl.  742.  Wbere  a 
railroad  company  maintains  a  dam  which 
causes  water  to  overflow  adjacent  land,  it 
is  liable,  although  the  dam  was  originally 
constructed  by  the  county  under  authority  of 
the  legislature;  Payne  v.  R.  Co.,  112  Mo.  6. 
20  S.  W.  322,  17  L.  R.  A.  628.  At  common 
law  a  railroad  company  must  construct  and 
maintain  its  road  across  a  watercourse  so  as 
not  to  injure  adjacent  lands;  Ohio  &  M.  By. 
Co.  v.  Thillman,  43  111.  App.  78 ;  Fick  v.  R. 
Co.,  157  Pa.  622,  27  Atl.  783. 

An  action  to  recover  damages  for  flowing 
land  is  local,  and  must,  therefore,  be  brought 
in  the  county  where  the  land  lies ;  Worster 
v.  Winnipiseogee  Lake  Co.,  25  X.  II.  525 : 
Watts'  Adm'rs  v.  Kinney,  23  Wend.  (N.  Y.) 
4S4  ;    2  East  497. 

In  Massachusetts  and  other  states,  acts 
have  been  passed  giving  to  the  owners  of 
mills  the  right  to  flow  the  adjoining  lands,  if 
necessary  to  the  working  of  their  mills,  sub- 
ject only  to  such  damages  as  shall  be  ascer- 
tained by  the  particular  process  prescribe  1. 
which  process  is  substituted  for  all  other  ju- 
dicial remedies ;  Leland  v.  Woodbury,  4 
Cush.  (Mass.)  245;  Nutting  v.  Page,  4  Gray 
(Mass.)  581;  Waddy  v.  Johnson,  27  N.  C. 
333;  Knox  v.  Chalouer,  42  Me.  150;  Pratt  v. 
Brown,  3  Wis.  603;  Anderson  v.  R.  Co.,  S6 
Ky.  44,  5  S.  W.  49,  9  Am.  St.  Rep.  2G3.  These 
statutes,  however,  confer  no  authority  to 
flow  back  upon  existing  mills;  Laird  v. 
Wells,  22  Pick.  (Mass.)  312.  See  Damages; 
Inundation;  Watercourse. 

BACKADAT10N.  A  consideration  given  to 
keep  back  the  delivery  of  stock  when  the 
price  is  lower  for  time  than  for  ready  money. 
Whart.  Diet. ;  Lewis,  Stocks.  Sometimes 
called  Backwardation. 

BACKBERENDE  (Sax.).  Bearing  upon 
the  I  ack  or  about  the  person. 

Applied  to  a  thief  taken  with  the  stolen  property 
in  his  immediate  possession,  Bracton,  1.  3.  tr.  2,  c. 
32.    Used  with  handhabendj  having  in  the  hand. 


BACKING 


304 


BADGE  OF  FRAUD 


BACKING.  Indorsement  Indorsement  by 
a  magistrate. 

Backing  a  warrant  becomes  necessary  when  it  is 
desired  to  serve  it  in  a  county  other  than  that  in 
which  it  was  first  issued.  In  such  a  case  the  in- 
dorsement of  a  magistrate  of  the  new  county  au- 
thorizes its  service  there  as  fully  as  if  first  issued 
in  that  county.  The  custom  prevails  in  England, 
Scotland,  and  some  of  the  United  States.  See  2 
N.  Y.  R.   S.  590. 

BACKSIDE.  A  yard  at  the  back  part  of 
or  behind  a  house,  and  belonging  thereto. 

The  term  was  formerly  much  used  both  in  convey- 
ances and  in  pleading,  but  is  now  of  infrequent  oc- 
currence except  in  conveyances  which  repeat  an 
ancient  description.    Chitty,  Pr.  177. 

BACKWARDATION.    See  Backadation. 

BAD.  Vicious,  evil,  wanting  in  good  qual- 
ities :  the  reverse  of  good.  See  Riddell  v. 
Thayer,  127  Mass.  487;  Tobias  v.  Harland, 
4  Wend.  (N.  Y.)  537. 

BADGE.  A  mark  or  sign  worn  by  some 
persons,  or  placed  upon  certain  things,  for 
the  purpose  of  designation. 

Some  public  officers,  as  watchmen,  policemen,  and 
the  like  are  required  to  wear  badges  that  they  may 
be  readily  known.  It  is  used  figuratively  when  we 
say  that  retention  of  possession  of  personal  proper- 
ty by  the  seller  is  a  badge  of  fraud. 

Under  its  police  power  a  legislature  may 
forbid  persons  who  are  not  members  of  so- 
cieties from  wearing  the  badge  of  such  so- 
cieties; Hammer  v.  State,  173  Ind.  199,  89 
N.  E.  850,  24  L.  R.  A.  (N.  S.)  795,  140  Am. 
St.  Rep.  248,  21  Ann.  Cas.  1034;  Com.  v.  Mar- 
tin, 35  Pa.  Super.  Ct.  241;  contra,  State  v. 
Holland,  37  Mont.  393,  96  Pac.  719.  One  who 
wears  a  badge  of  a  society  without  being  a 
member  holds  himself  out  to  the  public  and 
to  actual  members  as  guilty  of  a  false  per- 
sonation. It  is  a  deceit  and  a  false  pre- 
tense, and  its  object  could  be  nothing  else 
than  deception,  which  it  is  in  itself,  with  pos- 
sibly ulterior  motives ;  Hammer  v.  State,  173 
Ind.  199,  89  N.  E.  850,  24  L.  R.  A.  (N.  S.) 
795,  140  Am.  St.  Rep.  248,  21  Ann.  Cas.  1034 ; 
an  association  may  obtain  injunctive  relief 
against  the  use  by  another  association  of  its 
emblems ;  Benevolent  &  Protective  Order  of 
Elks  v.  Improved  &  Protective  Order  of  Elks 
of  the  World,  60  Misc.  223,  111  N.  Y.  Supp. 
1067,  affirmed  id.,  133  App.  Div.  918,  118  N. 
Y.  Supp.  1094. 

BADGE  OF  FRAUD.  A  term  used  in  the 
law  of  conveyances  made  to  hinder  and  de- 
fraud creditors.  It  is  defined  as  a  fact  tend- 
ing to  throw  suspicion  upon  a  transaction, 
and  calling  for  an  explanation.  Bump,  Fr. 
Conv.  31. 

When  such  a  fact  appears,  its  effect  Is  to 
require  more  persuasive  proof  of  the  pay- 
ment of  the  consideration  and  the  good  faith 
of  the  parties  than  would  ordinarily  be  re- 
quired;  Terrell  v.  Green,  11  Ala.  207.  It  is 
not  fraud  of  itself,  but  evidence  to  establish 
a  fraxidulent  intent;  Wilson  v.  Lott,  5  Fla. 
305 ;    Pilling  v.  Otis,  13  Wis.  495. 

The  following  have  been  held  to  be  badges 


of  fraud:  Indebtedness  on  the  part  of  the 
grantor;  Callan  v.  Statham,  23  How.  (U.  S.) 
477,  16  L.  Ed.  532;  Jackson  v.  Mather,  7 
Cow.  (N.  Y.)  301;  Cox  v.  Fraley,  26  Ark.  20; 
the  expectation  of  a  suit;  Glenn  v.  Glenn,  17 
la.  49S;  Hughes  v.  Rcper,  42  Tex.  116; 
Schaferman  v.  O'Brien,  2S  Md.  565,  92  Am. 
Dec.  70S ;  Redfield  &  Rice  Mfg.  Co.  v.  Dysart, 
02  Pa.  62 ;  Godfrey  v.  Germain,  24  Wis.  410 ; 
false  recitals  in  the  deed ;  McKinster  v.  Bab- 
cock,  26  N.  Y.  378;  inadequacy  of  considera- 
tion ;  Monell  v.  Scherrick,  54  111.  269 ;  Burke 
v.  Murphy,  27  Miss.  167 ;  Bray  v.  Hussey,  24 
Ind.  228;  Jaeger  v.  Kelley,  52  N.  Y.  274; 
Gibson  v.  Hill,  23  Tex.  77;  Craver  v.  Miller, 
65  Pa.  456;  Wheeler  v.  Kirtland,  23  N.  J. 
Eq.  14 ;  Kempner  v.  Churchill,  8  Wall.  (U.  S.) 
302,  19  L.  Ed.  461;  false  statement  of  the 
consideration;  McKinster  v.  Babcock,  26  N. 
Y.  378;  Peebles  v.  Horton,  64  N.  C.  374;  End- 
ers  v.  Swayne,  8  Dana  (Ky.)  103;  secrecy; 
Barrow  v.  Bailey,  5  Fla.  9 ;  Warner  v.  Nor- 
ton, 20  How.  (U.  S.)  448,  15  L.  Ed.  950 ;  con- 
cealment of  the  deed,  not  recording  it  and 
leaving  it  in  the  hands  of  the  grantor ;  Sands 
v.  Hildreth,  14  Johns.  (N.  Y.)  493;  Coates  v. 
Gerlach,  44  Pa.  43;  Beecher  v.  Clark,  12 
Blatchf.  256,  10  N.  B.  R.  385,  Fed.  Cas.  No. 
1,223 ;  Hildeburn  v.  Brown,  17  B.  Monr. 
(Ky.)  779;  failure  to  record  a  mortgage  by 
agreement ;  Hutchinson  v.  Bank,  133  Ind. 
271,  30  N.  E.  952,  36  Am.  St.  Rep.  537;  Day 
v.  Goodbar,  69  Miss.  687,  12  South.  30;  a 
secret  trust  between  the  grantor  and  gran- 
tee; 3  Co.  80;  McCulloch  v.  Hutchinson,  7 
Watts  (Pa.)  434,  32  Am.  Dec.  776;  reten- 
tion of  possession  of  land  by  the  grantor ; 
Jackson  v.  Mather,  7  Cow.  (N.  Y.)  301 ;  King 
v.  Moon,  42  Mo.  551 ;  Hartshorn  v.  Eames, 
31  Me.  93 ;  Lukins  v.  Aird,  6  Wall.  (U.  S.)  78, 
18  L.  Ed.  750 ;  Purkitt  v.  Polack,  17  Cal.  327  ; 
Johnson  v.  Lovelace,  51  Ga.  18 ;  mere  delay 
to  record  a  deed  executed  for  a  good  con- 
sideration by  an  insolvent  to  his  son,  where 
there  is  no  evidence  that  the  son  knew  of 
the  insolvency,  is  not  a  badge  of  fraud;  Sec- 
ond Nat.  Bank  of  Beloit  v.  Merrill,  81  Wis. 
142,  50  N.  W.  503,  29  Am.  St.  Rep.  870 ;  but 
in  general  anything  in  the  transaction  out  of 
the  usual  course  of  such  transactions  is  held 
to  be  such ;  Dan  jean  v.  Blacketer,  13  La. 
Ann.  595 ;    Bump,  Fr.  Conv.  50. 

BADGER.  (From  the  French  bagage,  a 
bundle,  and  thence  is  derived  bagagier,  a  car- 
rier of  goods).  One  who  buys  corn  and 
victuals  in  one  place  and  carries  them  to  an- 
other to  sell  and  make  a  profit  by  them.  A 
badger  was  exempted  from  the  punishment 
of  an  engrosser  by  the  statute  5  &  6  Ed.  VI. 
c.  14.     Jacob. 

BAG.  An  uncertain  quantity  of  goods  and 
merchandise,  from  three  to  four  hundred. 
Jacob. 

BAG  A  V  EL.  The  citizens  of  Exeter  had 
granted  to  them  by  charter  from  Edward  I. 


BAGAYEL 


305 


BAGGAGE 


the  collection  of  a  certain  tribute  or  toll  up- 
on all  manner  of  wares  brought  to  that  city 
to  be  sold,  toward  the  paving  of  the  streets, 
repairing  of  the  walls,  and  maintenance  of 
the  city,  which  was  commonly  called  bagavel, 
bethugavel  and  chippinggavel.  Antiq.  of  Ex- 
eter. 

BAGGAGE.  Such  articles  of  apparel,  or- 
nament, etc.,  as  are  in  daily  use  by  travel- 
lers, for  convenience,  comfort,  or  recr< 
"It  includes  whatever  the  passenger  takes 
with  him  for  his  personal  use  or  conven- 
ience according  to  the  habits  or  wants  of  the 
particular  class  to  which  he  belongs,  either 
with  reference  to  the  immediate  necessities 
or  ultimate  purpose  of  the  journey;"  per 
Cockburn,  C.  J.,  in  L.  R.  G  Q.  B.  612;  only 
such  articles  of  necessity  or  convenience  as 
are  generally  carried  by  passengers  for  their 
personal  use ;  Glovinsky  v.  Steamship  Co.,  6 
Misc.  38S,  26  N.  Y.  Supp.  751. 

It  is  said  that  (lie  decisions  and  text-books 
give  us  but  one  definite  limitation  to  the  term 
"baggage,"  and  that  is  that  it  must  be  some- 
thing for  the  personal  use  of  the  traveller; 
12  Harv.  L.  Rev.  119;  but  that  which  one 
traveller  would  consider  indispensable  would 
be  deemed  superfluous  by  another ;  19  C.  B. 
N.  S.  321 ;  so  that  his  station  in  life  must  be 
taken  into  consideration ;  Coward  v.  R.  Co., 
16  Lea  (Tenn.)  225,  57  Am.  Rep.  227;  New 
York,  C.  &  H.  R.  R.  Co.  v.  Fraloff,  100  U.  S. 
24,  25  L.  Ed.  531.  What  may  be  necessary 
for  a  voyage  on  land  is  unfit  for  a  voyage  at 
sea ;  and  the  length  of  the  journey  must  be 
considered  in  determining  the  quantity  of 
baggage  necessary  for  it;  12  Harv.  L.  Rev. 
119,  and  cases  cited.  The  traveller  is  en- 
titled to  have  carried  with  him  whatever  is 
essential  to  the  ultimate  purpose  of  his  jour- 
ney; Hannibal  &  St.  J.  R.  Co.  v.  Swift,  12 
Wall.  (U.  S.)  262,  20  L.  Ed.  423;  unless  his 
requirements  are  unreasonable ;  Oakes  v.  R. 
Co.,  20  Or.  392,  26  I'ac.  230,  12  L.  R.  A.  318, 
23  Am.  St.  Rep.  120 ;  Merrill  v.  Grinuell,  30 
N.  Y.  591.  It  has  been  held  that  a  bicycle  is 
not  baggage  under  a  statute  allowing  100 
pounds  of  "ordinary  baggage"  ;  State  v.  R. 
Co.,  71  Mo.  App.  3S5;  but  in  several  states 
they  are  expressly  declared  baggage  and  in 
Now  York  they  must  be  carried  free  of  charge 
if  the  owner  travels  on  the  same  train. 

In  [1S99]  1  Q.  B.  243,  it  is  said  there  are 
certain  requirements  which  articles  must 
meet  in  order  that  they  may  be  regarded  as 
"personal  luggage":  1.  They  must  be  for  the 
personal  use  of  the  passenger.  2.  They  must 
be  for  use  in  connection  with  the  journey, 
i.  e.,  something  habitually  taken  by  a  per- 
son when  travelling  for  his  own  use,  not 
merely  during  the  actual  journey,  but  for 
use  during  the  time  he  may  be  away  from 
home.  It  was  further  considered  that  the 
word  luggage  involves  the  idea  of  a  pack- 
age, and  that  the  law  does  not  recognize  as 
baggage    the    things    contained,    as    distinct 

Bouv.— 20 


from    the    receptacle    which    i 
and  does  not  cast  any  duty  on  the  carri< 
receive  personal   baggage   until   it  had 
placed  in  a   position  of  reasonable   security 
for  handling. 

This  term  has  been  held  to   include  jew- 
elry carried  as  I  .Inch  formed  a  part 
of   female   attire,    the    plaintiff    bi 
journey  with  bis  family;  4  Bingh.  2 
tiill  v.  Rowand,  3  l'a.  431,  45  Am.    D 
A    watch,   carried  in   one's   trunk,  is   p. 

ge;     Jones   v.   Yoorhees,    10   Ohio   145; 
Walsh  v.  Wright,  1  Newb.  i'.'i.  Fed  Ci 
17,1 1") ;  but  see  Bomar  v.  Maxwell.  9  Humphr. 
(Tenn.)  821,  51  Am.   Dec  682  ;     i. 
Instruments  of  an  army  surgeon;    Hannibal 

J.  EL  Co.  v.  Swift,  12  Wall.  (1 
20  L.   Ed.  423;    valuable  laces  carried  by   a 
foreign   woman  of  rank,  for  which  the  jury 
found  in  $10,000  dan  Stew  York, 

H.  R.  R.  Co.  v.  Fraloff,  100  l\   S.  24,  . 
Ed.  531;    one   revolver,   but   not   two;     Chi- 
cago, R.  I.  &  P.  R,  Co.  v.  Collins,  •"<;  11 
an  opera  glass;    Toledo.  W.  &   W.  R.  Co.  v. 
Hammond,  33  Ind.  37!t.  5  Am.  Rep.  221;  bed- 
ding of  a  poor  man  moving  with  his  family; 
Ouimit  v.  Henshaw.  35  Vt  604,  84  Am.  Dec. 
did;   Glovinsky  v.  steamship  Co.,  4  Mi- 
24    N.    Y.    Supp.    136;     such   articles   as   are 
ordinarily   carried   by   travellers   in   val 
Hampton  v.  Car  Co..  42  Mo.  App.  134;   books 
for  reading  or  amusement;  Doyle  v.  Ki 
Ind.  212;    a  harness  maker's  tools,  valued  at 
§10;    a  rifle;    Davis  v.  R.  Co.,  10  How.  IT. 
iX.   Y.)  330:    Porter   v.   Hildebrand,    14   l'a. 
129;    a  rifle,  revolver,  two  gold  chains,  two 
gold  rinus  and  a  silver  pencil  2  XI.  C 

Q.  B.  66;  a  carpet;  Minter  v.  R.  R.,  41  Mo. 
503,  97  Am.  Dec.  2SS ;  an  Illustrated  cata- 
logue, the  individual  property  of  a  travelling 
salesman,  prepared  by  himself  at  his  own  ex- 
pense, necessary  for  use  in  his  bus 
Staub  v.  Kendrick,  121  Ind.  226,  23  X.  E  79, 
6  L.  R.  A.  619. 

The   following   have   been    held    not    to   be 
'■:     Jewelry  bought  for  presents;    Xe- 
vins  v.  Steamboat  Co.,  4  Bosw.   (X.  V 
Metz  v.  R.  Co.,  85  Cal.  329,  2!   Pae  610,  9  1 
R.   A.   431,   20   Am.    St.   Rep.    228;    a    Bi 
jewelry    carried    by    a    salesman    to    be 
j  (checked,  without  saying  anything  as  to  ii< 
contents,  and  there  being  nothing  to  ii 
I  its  contents,  and   railroad   company's 
having     checked     it     without     Inquli 
Humphreys  v.  Perry,  us  r.  s.  027,  13    - 
Ct  711.  :'.7  I..  Ed.  587  ;    a  feather  ' 
tended  for  use  on  the  journey;    Conn 
Warren,   106   Miss.    146,   8  Am.    Rep.   300;    a 
lawyer's    papers    and    bank    notes   to   be 
by  him  in  19  « '.  1'..   N.  8. 

.",21;  trim's  containing  stage  properties 
tumes,  paraphernalia,  and  advertising  mat- 
ters of  a  theatrical  company,  unless  aft 
as  baggage,  but  the  carrier,  though  without 
fault,  is  liable  for  the  destruction  of  the 
trunks  where  its  agent  cheeked  them  as  bag- 
gage with  full  knowledge  that  they  contained, 


BAGGAGE 


300 


BAGGAGE 


besides  personal  apparel,  stage  costumes  and 
properties;  Oakes  v.  R.  Co.,  20  Or.  392,  26 
Pac.  230,  12  L.  R.  A.  318,  23  Am.  St.  Rep. 
126.  Samples  of  merchandise  are  not  bag- 
gage ;  13  C.  B.  N.  S.  818 ;  Stimson  v.  R.  Co., 
98  Mass.  83,  93  Am.  Dec.  140;  Hawkins  v. 
Hoffman,  6  Hill  (N.  Y.)  .">SG,  41  Am.  Dec. 
767 ;  Talcott  v.  R.  Co.,  66  Hun  456,  21  N.  Y. 
Supp.  31S;  Ailing  v.  R.  Co.,  126  Mass.  121, 
30  Am.  Rep.  667 ;  Pennsylvania  Co.  v.  Miller, 
35  Ohio  St.  541,  35  Am.  Rep.  020;  Southern 
Kansas  R.  Co.  v.  Clark.  f>!2  Kan.  398,  34  Pac. 
1054;  nor  a  trunk  deposited  with  the  car- 
rier without  being  accompanied  by  the  pas- 
senger; Wright  v.  Caldwell,  3  Mich.  51;  nor 
money  even  to  a  reasonable  amount;  Haw- 
kins v.  Hoffman,  6  Hill  (N.  Y.)  5S6,  41  Am. 
Dec.  767;  Davis  v.  R.  Co.,  22  111.  278,  74  Am. 
Dec.  151;  intended  for  trade,  business  or 
investment,  or  for  transportation  and  not  in- 
tended for  the  passenger  while  travelling ; 
Pfister  v.  R.  Co.,  70  Cal.  169,  11  Pac.  686,  59 
Am.  Rep.  404 ;  Bomar  v.  Maxwell,  9  Humphr. 
(Tenn.)  621,  51  Am.  Dec.  682;  contra,  Dun- 
lap  v.  Steamboat  Co.,  98  Mass.  371 ;  Merrill 
v.  Grinnell,  30  N.  Y.  594. 

If  a  carrier  knows  that  merchandise  is  in- 
cluded among  baggage,  and  does  not  object, 
he  is  liable  to  the  same  extent  as  for  other 
goods  taken  in  the  due  course  of  his  busi- 
ness; Butler  v.  R.  Co.,  3  E.  D.  Smith  (N.  Y.) 
571;  8  Exch.  30;  but  he  must  have  actual 
knowledge;  L.  R.  6  Q.  B.  612;  Michigan 
Cent  R.  Co.  v.  Carrow,  73  111.  34S,  24  Am. 
Rep.  248;  Mississippi  Cent.  R.  Co.  v.  Ken- 
nedy, 41  Miss.  671 ;  Stoneman  v.  R.  Co.,  52 
X.  Y.  429 ;  Ft.  Worth  &  R.  G.  R.  Co.  v.  Mil- 
linery Co.  (Tex.)  29  S.  W.  196.  Where 
trunks  containing  merchandise  were  checked 
as  baggage  by  a  salesman  (whose  intention 
was  to  follow  them  to  the  same  place)  and 
through  the  negligence  of  the  carrier  were 
burnt  soon  after  they  had  reached  their  des- 
tination, the  carrier  was  held  liable ;  Mc- 
Kibbin  v.  R.  Co.,  100  Minn.  270,  110  N.  W. 
964,  8  L.  R.  A.  (N.  S.)  489,  117  Am.  St.  Rep. 
689;  so  where  a  carrier  accepted  as  baggage 
trunks  of  samples  belonging  to  the  employer 
of  the  passenger,  the  owner  was  entitled  to 
recover  for  their  loss;  Talcott  v.  R.  Co.,  159 
N.  Y.  461,  54  N.  E.  1;  but  see  5  Q.  B.  D.  241; 
[1895]  2  Q.  B.  D.  3S7. 

The  general  rule  seems  to  be  that  where  a 
railroad  company  has  given  an  agent  author- 
ity to  receive  and  check  baggage,  he  must 
be  deemed  to  have  authority  to  determine 
what  class  of  articles  come  within  the  de- 
scription of  baggage,  and  when  he  accepts 
as  baggage  what  is  not  strictly  so,  with 
knowledge  or  means  of  knowledge  of  its 
character,  the  company  is  held  responsible 
for  his  acceptance  of  it ;  St.  Louis  S.  W.  R. 
Co.  v.  Berry,  60  Ark.  433,  30  S.  W.  764,  28  L. 
R.  A.  501,  46  Am.  St.  Rep.  212;  Waldron  v. 
R.  Co.,  1  Dak.  357,  46  N.  W.  456  ;  Chicago, 
R.  I.  &  P.  R.  Co.  v.  Conklin,  32  Kan.  55,  3 
Pac.  762;    Bergstrom  v.  R.  Co.,  134  la.  223, 


111  N.  W.  818,  10  L.  R.  A.  (N.  S.)  1119,  13 
Ann.  Cas.  239;  Sherlock  v.  R.  Co.,  85  Mo. 
App.  49;  Trimble  v.  R.  Co.,  162  N.  Y.  84,  56 
N.  E.  532,  48  L.  R.  A.  115;  but  see  Blumantle 
v.  R.  Co.,  127  Mass.  322,  34  Am.  Rep.  370; 
and  see  Bergstrom  v.  R.  Co.,  134  la.  223,  111 
N.  W.  818,  10  L.  R.  A.  (N.  S.)  1119,  13  Ann. 
Cas.  239;    Common  Carriers. 

A  railroad's  liability  for  baggage  is  not 
affected  by  the  fact  that  the  passenger  did 
not  travel  on  the  same  train ;  Lamed  v.  R. 
Co.,  81  N.  J.  L.  571,  79  Atl.  289.  In  The  su- 
preme court  of  Michigan  it  was  held  that  one 
who  purchases  a  ticket  for  the  sole  purpose 
of  checking  his  baggage  upon  it,  and  with 
the  intention  of  travelling  to  his  destination 
in  his  private  conveyance,  can  hold  the  car- 
rier liable  only  as  a  gratuitous  bailee,  if  it 
be  stolen  without  negligence  on  the  carrier's 
part;  55  L.  R.  A.  650,  where  in  a  note  the 
cases  are  considered  and  the  conclusion  is 
reached  that  the  Michigan  case  is  in  conflict 
with  the  current  of  opinion  and  should  not 
be  accepted  as  a  precedent,  and  that  the  pur- 
chase of  a  ticket  is  a  contract  which  gives 
the  passenger  two  distinct  rights,  one  to  be 
carried  as  a  passenger,  and  the  other  to  have 
his  baggage  transported ;  and  that  having 
paid  for  two  privileges,  there  is  no  reason 
why  he  should  be  compelled  to  avail  himself 
of  both,  unless  the  carrier's  burden  in  re- 
spect of  one  of  them  is  increased  by  his  fail- 
ure to  exercise  the  other;  and  see  Warner  v. 
R.  Co.,  22  la.  166,  92  Am.  Dec.  389,  where  it 
is  held  that,  whether  on  the  same,  the  preced- 
ing, or  the  next  train,  if  the  baggage  is  sent 
pursuant  to  an  agreement,  and  as  part  of 
the  consideration  for  the  fare  paid  by  the 
passenger,  the  same  rules  apply  as  to  care. 

Where  a  passenger  bought  a  through  ticket 
and  checked  his  baggage  to  go  by  a  certain 
route,  and  the  first  carrier  by  mistake  deliv- 
ered the  baggage  to  another  carrier,  which 
lost  it,  the  second  carrier  was  held  to  have 
assumed  the  responsibility  of  a  common  car- 
rier, as  it  should  have  known  by  the  checks 
that  the  baggage  was  to  be  carried  by  an- 
other route;  Fairfax  v.  R.  Co.,  73  N.  Y.  167, 
29  Am.  Rep.  119. 

Where  a  passenger  in  second-class  car  de- 
livered a  dog  to  the  baggage-master  and  de- 
clined to  pay  for  carrying  it,  and  at  the 
plaintiff's  destination,  the  baggage-master  re- 
fused to  deliver  the  dog,  without  th$  pay- 
ment of  money,  and  it  was  carried  past  the 
destination  and  lost,  by  the  negligence  of  the 
baggage-master,  held,  that  plaintiff  could  re- 
cover because  of  his  ignorance  of  a  rule  as 
to  a  payment  for  conveying  his  dog  on  the 
train ;  Kansas  City,  M.  &  B.  R.  Co.  v.  Hig- 
don,  94  Ala.  286,  10  South.  282,  14  L,  R.  A. 
515,  33  Am.  St.  Rep.  119. 

The  carrier  may  establish  reasonable  regu- 
lations as  to  baggage  and  is  not  liable  if  they 
are  violated ;  Gleason  v.  Transp.  Co.,  32  Wis. 
85,  14  Am.  Rep.  710. 

Limitations  upon  the  liability  of  carriers 


BAGGAGE 


cJOT 


BAGGAGE 


are  taken  most  strongly  against  them  ;  Louis- 
ville, N.  A.  &  C.  R.  Co.  v.  Nicholui,  4  Ind. 
App.  110,  30  N.  E.  424,  51  Am.  St.  Rep.  20G. 
A  stipulation  exempting  the  carrier  from 
liability  fur  "any  loss  or  damage"  to  baj 
was  held  not  to  extend  to  loss  arising  from 
negligence;  Saunders  v.  R.  Co.,  128  Fed.  15; 
and  one  limiting  liability  to  $100;  Prentice 
v.  Decker,  49  Barb.  (N.  Y.)  21;  and  one  ex- 
empting the  company  from  liability  for  its 
servants'  negligence  would  not  cover  a  loss 
arising  from  the  company's  negligence; 
Weinberg  v.  S.  S.  Co.,  8  N.  Y.  Supp.  195;  but 
a  provision  inserted  in  a  steamship  ticket 
limiting  the  liability  of  a  carrier  for  loss  of 
baggage  to  a  certain  amount,  unless  the  true 
value  is  declared  and  excess  paid  for  at  reg- 
ular freight  rates,  will  operate  to  relieve  the 
carrier  from  liability  for  such  loss,  even 
when  due  to  his  own  negligence;  Tewes  v. 
S.  S.  Co.,  186  N.  Y.  151,  78  N.  E.  864,  8  L. 
R,  A.   (N.  S.)  190,  9  Ann.  Cas.  909. 

Limitations  as  to  the  value  of  baggage  are 
said  not  to  apply  to  hand  baggage  carried  by 
a  passenger  on  a  car ;  15  Yale  L.  J.  428.  A 
provision  in  a  ticket,  limiting  liability  for 
loss  of  baggage  to  $100,  where  goods  of  the 
value  of  $300  were  stolen  from  the  baggage 
while  in  company's  possession,  held  not  to 
relate  to  loss  or  damage  from  any  particular 
cause,  but  to  the  amount  of  loss  only,  and 
if  the  jury  found  negligence  on  the  part  of 
the  railroad  company,  the  carrier  would  be 
liable  for  the  full  amount  lost;  Louisville, 
N.  A.  &  C.  Ry.  Co.  v.  Nicholai,  4  Ind.  App. 
119,  30  N.  E.  424,  51  Am.  St.  Rep.  206.  Bag- 
gage carried  by  a  woman,  not  a  pauper,  com- 
ing from  Germany  to  the  U.  S.,  consisting  of 
clothing  for  herself  and  her  two  children, 
together  with  some  bed  feathers  and  covering 
of  the  value  of  $285,  is  reasonable  in  quanti- 
ty and  value,  and  therefore  a  provision  in  the 
transportation  ticket,  limiting  the  carrier's 
liability  for  loss  of  baggage  to  $50,  is  in- 
valid, and  will  not  defeat  a  recovery  for 
loss  of  such  baggage;  Glovinsky  v.  Steam- 
ship Co.,  4  Misc.  266,  24  N.  Y.  Supp.  136. 

A  baggage  check  merely  indicating  desig- 
nation of  baggage  beyond  terminus  of  is- 
suing carrier's  route  does  not  prove  a  con- 
tract to  carry  to  such  destination;  Marmon- 
stein  v.  R.  Co.,  13  Misc.  32,  34  N.  Y.  Supp. 
97.  The  issuance  of  a  baggage  check  by  a 
carrier  to  a  passenger  is  not  a  contract  by 
the  carrier  to  deliver  the  baggage  at  such  a 
point,  but  simply  a  means  of  identification 
of  the  .baggage  at  the  end  of  the  route ;  Hy- 
man  v.  R.  Co.,  66  Hun  202,  21  N.  Y.  Supp. 
119. 

Unless  negligence  is  showh.  a  steamship 
company  is  not  liable  for  baggage  stolen 
from  a  passenger's  stateroom ;  The  Hum- 
boldt, 97  Fed.  656;  Clark  v.  Burns,  US  Mass. 
275,  19  Am.  Rep.  456;  American  S.  S.  Co.  v. 
Bryan,  83  Pa.  446.  The  contrary  rule  in 
New  York  is  based  on  the  idea  that  a  pas- 
senger steamboat  is  subject  to  the  liability 


of  an  inn-keeper;    Adams  v.  Steau 
151  N.  Y.  163,  45  N.  E.  369,  31  L.  R.  A 
56  Am.  St.  Rep.  616. 

It    was   formerly    held   that   carriers 
not  liable  as  such  for  baggage  unless  a  dis- 
tinct price  be  paid  for  its  carrta 
2821;   and  see  3  H.  &  C.  135;   but  the  rule 
now  otherwise;    L.  R.  6  Q.   B.  612;    Powell 
v.  .Myers,  26  Wend.  (N.  Y.  i  591;  Parmelee  v. 
McNulty,  19  111.  556;   McGn  gor  &  Co.  v.  Kil- 
gore,  6  Ohio  35S,  27  Am.  D  Dill   v. 

R.  Co.,  7  Rich.  158,  62  Am.  Dec.  407  ;  Bomax 
v.  Maxwell,  9  Humph.  (Tenn.)  621,  51  Am. 
Dec.  082;  they  may  limit  their  common- 
law  liability  by  express  contract,  and  by  rea- 
sonable regulations  made  known  to  the  pub- 
lic, but  they  cannot  relieve  themselves  from 
liability  from  loss  occasioned  by  negligence; 
Hollister  v.  Nowlen,  19  Wend.  (N.  V.  I  2.34, 
32  Am.  Dec.  455;  Cole  v.  Goodwin,  19  Wend. 
(N.  Y.)  251,  32  Am.  Dec.  470;  Laing  v.  Cold- 
er, 8  Pa.  47D,  40  Am.  Dec.  533;  Ohio  &  M.  B. 
Co.  v.  Selby,  47  Ind.  471,  17  Am.  Rep.  7 
Mobile  &  O.  R.  Co.  v.  Hopkins,  41  Ala.  488, 
94  Am.  Dec.  607.  See  L.  R.  10  Q.  B.  43.. 
The  carrier  may  make  reasonable  regula- 
tions for  the  checking,  custody,  and  carri 
of  baggage;  Najac  v.  R.  Co.,  7  Allen  (Mas 
329,  83  Am.  Dec.  686.  It  is  liable  as  a  car- 
rier until  the  passenger  has  had  a  reason- 
able time  to  remove  his  baggage  after  its  ar- 
rival; Burgevin  v.  R.  Co.,  69  Hun  479,  23 
N.  Y.  Supp.  415. 

The  carrier  is  not  liable  for  loss  of  bag- 
gage occasioned  by  "act  of  God"  (Johnstown 
flood)  and  not  by  his  own  negligence;  Long 
v.  R.  Co.,  147  Pa.  343,  23  Atl.  459,  14  L.  B. 
A.  741,  30  Am.  St.  Rep.  732. 

As  to  what  may  be  carried  as  baggage  in 
a  sleeping  car,  see  note  9  L.  R.  A.  (N.  S.> 
407. 

As  to  an  innkeeper's  liability  for  bag* 
of  a  guest,  see  Innkeeper, 

BAIL  (Fr.  bailler,  to  deliver).  One  who 
becomes  surety  for  the  appearance  of  the 
defendant  in  court. 

To  deliver  the  defendant  to  persons  who. 
in  the  manner  prescribed  by  law,  become 
security  for  his  appearance  in  court. 

The  word  is  used  both  as  a  substantive  and  a 
verb,  though  more  frequently  as  a  substantive,  and 
In  civil  cases,  at  least,  in  the  first  sense  given 
above.  In  its  more  ancient  signification,  the  word 
includes  the  delivery  of  property,  real  or  personal, 
by  one  person  to  another.  Bail  in  actions  was  first 
introduced  in  favor  of  defendants,  to  mitigate  the 
hardships  Imposed  upon  them  while  in  the  custody 
of  the  sheriff  under  arrest,  the  security  thus  offered 
standing  to  the  sheriff  in  the  place  of  the  body  of 
the  defendant.  Taking  bail  was  made  compulsory 
upon  the  sheriffs  by  the  statute  23  Hen.  VI.  c.  9, 
and  the  privilege  of  the  defendant  was  rendered 
more  valuable  and  secure  by  successive  statutes, 
until  by  statute  12  Geo.  I.  c.  29,  made  perpetual  by 
21  Geo.  II.  c.  3,  and  19  Geo.  III.  c.  70,  it  was  pro- 
vided that  arrests  should  not  be  made  unless  the 
plaintiff  make  affidavit  as  to  the  amount  due,  and 
this  amount  be  endorsed  on  the  writ;  and  for  this 
sum  and  no  more  the  sheriff  might  require  bail. 

In  the  King's  Bench,  bail  above  and  below  were 
both  exacted  as  a  condition  of  releasing  the  defend- 


BAIL 


JUS 


BAIL 


ant  from  the  custody  In  which  he  was  held  from  the 
time  of  his  arrest  till  his  final  discharge  in  the 
suit.  In  the  Common  Bench,  however,  the  origin 
of  bail  above  seems  to  have  been  different,  as  the 
capias  on  which  bail  might  be  demanded  was  of  ef- 
fect only  to  bring  the  defendant  to  court,  and  after 
appearance  he  was  ^theoretically  In  attendance,  but 
not  in  custody.  The  failure  to  file  such  bail  as  the 
emergency  requires,  although  no  arrest  may  have 
been  made,  Is,  In  general,  equivalent  to  a  default. 
In  some  states  the  defendant  when  arrested  gives 
bail  by  bond  to  the  sheriff,  conditioned  to  appear 
and  answer  to  the  plaintiff  and  abide  the  judgment 
and  not  to  avoid,  which  thus  answers  the  purpose 
of  bail  above  and  below ;  Hale  v.  Russ,  1  Greenl. 
(Me.)  336;  Hamilton  v.  Dunklee,  1  N.  H.  172; 
Pierce  v.  Read,  2  N.  H.  360;  Champion  v.  Noyes,  2 
Mass.  4S4  ;  Broaders  v.  Welsh,  2  N.  &  McC.  (S.  C.) 
569;  Harwood  v.  Robertson,  2  Hill  (S.  C.)  336; 
West  v.  Ratledge,  15  N.  C.  40 ;  Liceth  v.  Cobb,  18 
Ga.  314.  In  criminal  law  the  term  is  used  frequently 
in  the  second  sense  given,  and  bail  is  allowed  ex- 
cept in  cases  where  the  defendant  is  charged  with 
the   commission   of  the  more  heinous   crimes. 

Bail  above.  Sureties  who  bind  themselves 
either  to  satisfy  the  plaintiff  his  debt  and 
costs,  or  to  surrender  the  defendant  into 
custody,  provided  judgment  be  against  hiin 
in  the  action  and  he  fail  to  do  so ;  Sellon, 
Pr.  137. 

Bail  to  the  action.    Bail  above. 

Bail  •■:  hail  to  the  sheriff.    Sureties 

who  bind  themselves  to  the  sheriff  to  secure 
the  defendant's  appearance,  or  his  putting  in 
bail  to  the  action  on  the  return-day  of  the 
writ.  It  may  be  demanded  by  the  sheriff 
whenever  he  has  arrested  a  defendant  on  a 
bailable  process,  as  a  prerequisite  to  releas- 
ing the  defendant. 

Civil  bail.    That  taken  in  civil  actions. 

Common  bail.  Fictitious  sureties  formally 
entered  in  the  proper  office  of  the  court. 

It  is  a  kind  of  bail  above,  similar  in  form  to  spe- 
cial bail,  but  having  fictitious  persons,  John  Doe  and 
Richard  Roe,  as  sureties.  Filing  common  bail  is 
tantamount  to  entering  an  appearance.  3  Bla. 
Com.  c.  xix.     See  Bill  of  Middlesex. 

Special  bail.  Responsible  sureties  who  un- 
dertake as  bail  above. 

Requisites  of.  A  person  to  become  bail 
must,  in  England,  be  a  freeholder  or  house- 
keeper; 2  Chitt.  Bail  9G ;  5  Taunt.  174; 
Lofft  148;  must  be  subject  to  'process  of 
the  court,  and  not  privileged  from  arrest 
either  temporarily  or  permanently ;  1  D.  & 
R.  127;  Coster  v.  Watson,  15  Johns.  (X.  Y.) 
535;  Brown  v.  Lord,  Kirb.  (Conn.)  2"'.): 
must  be  competent  to  enter  into  a  contract; 
must  be  able  to  pay  the  amount  for  which 
he  becomes  responsible,  but  the  property 
may  be  real  or  personal  if  held  in  his  own 
right;  2  Chit.  Bail  97;  11  Price  158;  and 
Liable  to  ordinary  legal  process;  4  Burr.  2526. 

Persons  not  excepted  to  as  appearance 
bail  cannot  be  objected  to  as  bail  above ; 
Dunlops  v.  Laporte,  1  Hen.  &  M.  (Va.)  22; 
and  bail,  if  of  sufficient  ability,  should  not  be 
refused  on  account  of  the  personal  character 
or  opinions  of  the  party  proposed  ;  4  Q.  B. 
468 ;    1  B.  &  H.  Lead.  Cr.  Cas.  236. 

When  it  may  be  given  or  required.  In  civil 
actions  the  defendant  may  give  bail  in  all 


cases  where  he  has  been  arrested;  Richards 
v.  Porter,  7  Johns.  (N.  Y.)  137;  and  bail  be- 
low, even,  may  be  demanded  in  some  cases 
where  no  arrest  is  made;  Coward  v.  Bohun, 
1  Harr.  &  J.  (Md.)  538;  Mickle  v.  Baker,  2 
McCord  (S.  C.)  250;  but  where  a  statute 
forbids  the  taking  of  bail,  an  order  of  count 
authorizing  it  will  not  entitle  a  party  thereto 
or  make  it  valid ;  Swanson  v.  Matson,  31  111. 
A  pp.  594. 

Bail  above  is  required  under  some  restric- 
tions in  many  of  the  states  in  all  actions 
for  considerable  amounts ;  Cheshire  v.  Ed- 
son,  2  McCord  (S.  C.)  385;  either  common; 
Bernbridge  v.  Turner,  2  Yeates  (Pa.)  429; 
Anonymous,  20  N.  J.  L.  494;  Morrison  v. 
Silverburgh,  13  111.  551 ;  which  may  be  filed 
by  the  plaintiff,  and  judgment  taken  by  de- 
fault against  the  defendant  if  he  neglects  to 
file  proper  bail,  after  a  certain  period ;  Lane 
v.  Cook,  8  Johns.  (N.  Y.)  359;  Corse  v.  Col- 
fax, 2  N.  J.  L.  684;  or  special,  which  is  to  be 
filed  of  course  in  some  species  of  action  and 
may  be  demanded  in  others;  Peareson  v. 
Picket,  1  McCord  (S.  C.)  472  jv  Whiting  v. 
Putnam,  17  Mass.  176;    Purcell  v.  Hartness, 

1  Wend.   (N.  Y.)  303;   Douglass  v.  Wight,  2 
Brev.   (S.  C.)  218;    but  in  many  cases  only. 
upon  special  cause  shown ;   Coxe  277;   Brook- 
field  v.  Jones,  8  N.  J.  L.  311;  Clason  v.  Gould, 

2  Caines  (N.  Y.)  47;  Jack  v.  Shoemaker,  3 
Binn.  (Pa.)  283;  Hatcher  v.  Lewis,  4  Rand. 
(Va.)  152. 

The  existence  of  a  debt  and  the  amount 
due;  Kevins  v.  Merrie,  2  Whart.  (Pa.)  499; 
Lewis  v.  Brackenridge,  1  Blackf.  (Ind.)  112; 
Jennings  v.  Sledge,  3  Ga.  128;  in  an  action 
for  debt,  and,  in  some  forms  of  action,  other 
circumstances,  must  be  shown  by  affidavit 
to  prevent  a  discharge  on  common  bail; 
Brooks  v.  McLellan,  1  Barb.  (N.  Y.)  247; 
Lewis  v.  Brackenridge,  1  Blackf.  112;  Hock- 
springer  v.  Ballenburg,  16  Ohio  304;  Mustin 
v.  Mustin,  13  Ga.  357.  It  is  a  general  rule 
that  a  defendant  who  has  been  once  held  to 
bail  in  a  civil  case  cannot  be  held  a  second 
time  for  the  same  cause  of  action ;  Tidd,  Pr. 
184;  Clark  v.  Weldo,  4  Yeates  (Pa.)  206; 
President,  etc.,  of  Bank  of  South  Carolina  v. 
Green,  2  Rich.  (S.  C.)  336;  but  this  rule  does 
not  apply  where  the  second  holding  is  in  an- 
other state;  Peck  v.  Hozier,  14  Johns.  (N. 
Y.)  3  10  ;  Hubbard  v.  Wentworth,  3  N.  H.  43  ; 
Parasset  v.  Gautier,  2  Dall.  (U.  S.)  330,  1 
L.  Ed.  402;  Man  v.  Lowden,  4  McCord  (S. 
C.)  485.  And  see  also  James  v.  Allen,  1 
Dall.  (U.  S.)  188,  1  L.  Ed.  93;  Read  v,  Chap- 
man, 1  Pet.  C.  C.  404,  Fed.  Cas.  No.  11,605; 
Woodbridge  v.  Wright,  3  Conn.  523;  as  to  the 
effect  of  a  discharge  in  insolvency. 

In  criminal  cases  the  defendant  may  in 
al  claim  to  be  set  at  liberty  upon  giv- 
ing  ball,  except  when  charged  with  the  com- 
a  of  a  capital  offence;  4  Bla.  Com. 
2'J7  ;  Ex  parte  Alexander,  59  Mo.  599,  21  Am. 
Rep.  393;  State  v.  Arthur,  1  McMull.  (S.  C.)' 
45U;   State  v.  Holmes,  3  Strobh.  (S.  C.)  272; 


BAIL 


309 


BAIL 


Ex  parte  Richardson,  96  Ala.  110,  11  South. 
310;  Ready  v.  Com.,  9  Dana  (Ky.)  38;  Ex 
parte  White,  9  Ark.  222.  One  charged  with 
murder  should  not  be  discharged  on  habeas 
corpus,  unless  the  evidence  before  the  com- 
mitting magistrate  was  so  insufficient  that  a 
verdict  thereon  requiring  capital  punishment 
would  be  set  aside;  In  re  Troia,  04  Cal.  \'<-, 
28  Pac.  231 ;  Ex  parte  King,  80  Ala.  620,  5 
South.  803;  Ex  parte  Hamilton,  65  Miss.  147, 
3  South.  241  ;  and  even  In  capital  offences  a 
defendant  may  be  bailed  In  the  discretion 
of  the  court,  in  the  absence  of  constitntiona] 
or  statutory  provisions  to  the  contrary; 
Archer's  Case,  6  Gratt.  (Va.)  703;  Com.  v. 
Semmes,  11  Leigh  (Va.)  665;  State  v.  Sum- 
mons, 19  Ohio  139;  People  v.  Van  Home,  8 
Barb.  (N.  Y.)  158;  Ex  parte  Croom,  19  Ala. 
561;  Teople  v.  Smith,  1  Cal.  9;  Ex  parte 
Wiay.  30  Miss.  673;  Com.  v.  Thillips,  16 
Mass.  423;  Ullery  v.  Com.,  8  B.  Mour.  (Ky.) 
3.  Except  under  extraordinary  circumstanc- 
es, one  convicted  of  felony  will  not  be  ad- 
mitted to  bail  pending  an  appeal;  Ex  parte 
Smith.  89  Cal.  79,  26  Pac.  638;  People  v. 
Folmsbee.  00  Barb.  (N.  Y.)  480;  Ex  parte 
Ezell.  40  Tex.  151,  19  Am.  Rep.  32;  Corbett 
v.  State,  24  Ga.  391.  Where  one  is  indicted 
for  a  capital  offence,  the  burden  rests  on  him 
to  show  that  the  proof  of  his  guilt  is  not 
evident,  on  an  application  for  bail;  Ex  parte 
Jones,  31  Tex.  Cr.  R.  422,  20  S.  W.  9S3. 

For  any  crime  or  offeuce  against  the  Unit- 
ed States,  not  punishable  by  death,  any  judge 
of  the  United  States,  or  commissioner  of  a 
district  court  to  take  bail,  or  any  chancellor, 
judge  of  the  supreme  or  superior  court,  or 
first  judge  of  any  court  of  common  pleas,  or 
mayor  of  any  city  of  any  state,  or  any  jus- 
tice of  the  peace  or  magistrate  of  any  state, 
where  the  offender  may  be  found,  may  take 
bail ;  Act  Sept.  24,  17S9,  §  33,  Mar.  2,  1793, 
§  4;  and,  after  commitment  by  a  justice  of 
the  supreme  or  judge  of  district  court  of  the 
United  States,  any  judge  of  the  supreme  or 
superior  court  of  any  state  (there  being  no 
judge  of  the  United  States  in  the  district  to 
take  sucH  bail)  may  admit  the  person  to  bail 
if  he  offer  it. 

When  the  punishment  by  the  laws  of  the 
United  States  is  death,  bail  can  be  taken 
only  by  the  supreme  or  district  court. 

As  to  the  principle  on  which  bail  is  granted 
or  refused  in  eases  of  capital  offences  in  the 
Kings  Bench,  see  1  E.  &  B.  1,  8;  Dearsl.  Cr. 
Cas.  51,  60. 

The  proceedings  attendant  on  giving  bail 
are  substantially  the  same  in  England  and 
the  United  States.  An  application  is  made 
to  the  proper  officer;  Gilliam  v.  Allen.  4 
Rand.  (Va.)  498,  and  the  bond  or  the  names 
of  the  bail  proposed  filed  in  the  proper 
office,  and  notice  is  given  to  the  opposite 
party,  who  must  except  within  a  limited 
time,  or  the  bail  justify  and  are  approved. 
If  exception  is  taken,  notice  is  given,  a 
hearing  takes  place,   the   bail   must  justify, 


and  will  then  be  approved  unless  the  other 
party  oppose  successfully ;  in  which  case 
other  bail  must  be  added  or  substituted.  A 
formal  application  is.  in  many  casts,  dis- 
pensed with,  but  a  notification  Is  given  at  the 
time  of  filing  to  the  opposite  party,  and,  un- 
less exceptions  are  made  and  notice  given 
within  a  limited  time,  the  bail  justify  and 
are  approved.  If  the  sum  in  which  the  de- 
fendant is  held  is  too  large,  be  may  apply  for 
mitigation  of  bail. 

Tin'  !  ail  are  said  to  enter  into  a  re< 
zance  when  the  obligation  is  one  of  n 
which   it  is    when    government   or    the   de- 
fendant is  the  obligee;    when   the  sheriff  is 
the   obligee,    it   is    called   a    bail    bond 
Bail  Bond;    Recognizance. 

Unless  authorized   by  statute,  it  is  illegal 
for  an  officer  or  magistrate  to  receive  money 
in  lieu  of  bail  for  the  appearance  of  a 
son  accused  of  a  crime;   Keinbard  v.  City,  49 
Ohio  St.  257,  31  N.  E.  35. 

Milif/ation  of  excessive  bail  may  be  obtain- 
ed by  simple  application  to  the  court;  Bunt- 
ing v.  Brown,  13  Johns.  (N.  Y.)  42.1;  Kep- 
pele  v.  Zantzinger,  3  Yeates  \(Pa.)  S3;  and 
in  other  modes;  Jones  v.  Kelly,  17  M 
110;    Evans  v.  Foster.  1  X.  II.  374.     Exacting 

Lve  bail  is  against  the  constitui 
the  United  States,  and  was  a  misdemeanor 
at  common  law;  U.  S.  Const.  Amend,  art  8; 
Alexander  v.  Winn,  1  Brev.  (S.  C.  i  14;  U. 
S.  v.  Lawrence,  4  Cra.  C.  C.  518,  Fed.  Cas. 
No.  15,577. 

The  liability  of  bail  is  limited  by  the  bond; 
Beers  v.   Ilnughton,  9  Tef.    (U.  S.) 
Ed.  145;  Fetterman  v.  Hopkins,  5  Wat; 
539;    by   the  ac   etiam;   Mumford    v.    stack- 
er, 1  Cow.    (N.  Y.)    601  :  by  the  amonnt  for 
which   judgment  is  rendered;    Longstreet  v. 
Lafitte,   2  Speers    (S.   C.)    004;  and 
circumstances    in     some     cases;     Morton    v. 
Bryce,  1  N.  &  McC.   (S.  C.)    64;   Murden  v. 
Perman,   1   McCord    (S.  :    Kinsler  v. 

Kyzer,  4  McCord  (S.  C.)  315.  See  Bail 
Bono  ;  Recognizance. 

The  powers  of  the  bail  over  the  defendant 
are   very    extensive.      As   they    are  SU] 
to  have  the  custody  of  the  defendant, 
may.  when  armed  with  the  bail  piece,  arrest 
him,    though   out  of  the  jurisdiction   of  the 
court  where  they  became  bail,  and  in  a  dif- 
ferent state;  Parker  v.  Bidwell,  •"•  i 
Ruggles  v.  Corey.  Id.    121;  Com.  v.  Bri 
8  Tick.    (Mass.)   138;  Nicolls  v.  Ingersoll,  7 
Johns.   (N.  Y.)   14.-,;  Stnte  v 
X.  C.  775,  14  S.  E.  75,  1  I  L.  R.  A.  805;  may 
take  him  while  attending  court  as  a  suitor, 
or  at  any  time,  even  on  Sunday;  Broome  v. 
Hurst.   4   Yeates    (Pa.)    123;    Read  v.  Case.  4 
Conn.  170,  io  Am,  Dec  110;  may  break  open 
c  if  necessary:   Nicolls  v.   Ingersoll,  7 
Johns,   i  X.  v.i    i  15;   Read  v  Conn. 

loo.  10  Am.  Dec.  110;  may  command  the  as- 
sistance of  the  sheriff  and  his  officers ;  Com. 
v.  Brickett,  S  Pick.  (Mass.)  138;  and  may 
depute  their  power  to  others;   State  v.  Ma- 


BAIL 


310 


BAIL  BOND 


hon,  3  Harr.  (Del.)  568.  He  has  been  look- 
ed upon  as  the  principal's  gaoler,  and  the 
principal,  when  bailed,  has  been  deemed  as 
truly  imprisoned  as  if  he  were  still  confined ; 
11  Harv.  L.  Rev.  541,  "The  bail  have  their 
principal  on  a  string  and  may  pull  the  string 
whenever  they  please  and  render  him  in 
their  discharge ;"  G  Mod.  231.  Where  the  de- 
fendant has  been  surrendered  by  his  sure- 
ties pending  an  appeal,  a  reasonable  time 
and  opportunity  should  be  given  him  to  get 
another  bond;  In  re  Bauer,  112  Mo.  231,  20 
S.    W.  4S8. 

To  refuse  or  delay  to  bail  any  person  is  an 
offence  against  the  liberty  of  the  subject, 
both  at  common  law  and  by  statute,  but  does 
not  entitle  the  person  refused  to  an  action 
unless  malice  be  shown ;  4  Q.  B.  4G8 ;  13  id. 
240;  Evans  v.  Foster,  1  N.  H.  374. 

In  extradition  cases  bail  is  held  not  to  be 
a  question  of  practice ;  it  is  dependent  on 
statute;  although  the  United  States  statute 
in  respect  to  procedure  in  extradition  does 
not  forbid  bail  in  such  cases,  that  is  not 
enough,  as  the  authority  must  be  expressed; 
and  as  there  is  no  provision  for  bail  in  the 
act,  bail  cannot  be  allowed;  In  re  Carrier, 
57  Fed.  578.  In  In  re  Wright,  123  Fed.  463, 
bail  was  denied  in  an  extradition  case  for 
want  of  power.  On  appeal  in  Wright  v. 
Henkel,  190  U.  S.  40,  23  Sup.  Ct.  781,  47  L. 
Ed.  948,  it  was  said:  "We  are  unwilling  to 
hold  that  the  circuit  court  possesses  no  pow- 
er in  respect  of  admitting  to  bail  other  than 
as  specifically  vested  by  statute,  or  that 
while  bail  should  not  ordinarily  be  granted  in 
cases  of  foreign  extradition,  those  courts 
may  not  in  any  case,  and  whatever  the  spe- 
cial circumstances,  extend  that  relief."  In 
[1898]  2  Q.  B.  615,  it  was  held  that  the  King's 
Bench  had  at  common  law  jurisdiction  to 
admit  to  bail. 

In  Canadian  Law.  A  lease.  See  Merlin, 
Repert.  Bail. 

Bail  emphyteotique.  A  lease  for  years, 
with  a  right  to  prolong  indefinitely;  5  Low. 
C.  381.  It  is  equivalent  to  an  alienation;  6 
Low.  C.  58. 

BAIL  BOND.  A  specialty  by  which  the 
defendant  and  other  persons  become  bound 
to  the  sheriff  in  a  penal  sum  proportioned  to 
the  damages  claimed  in  the  action,  and  which 
is  conditioned  for  the  due  appearance  of  such 
defendant  to  answer  to  the  legal  process 
therein  described,  and  by  which  the  sheriff 
has  been  commanded  to  arrest  him. 

The  defendant  usually  binds  himself  as  principal 
with  two  sureties;  but  sometimes  the  ball  alone 
bind  themselves  as  principals,  and  sometimes  also 
one  surety  is  accepted  by  the  sheriff.  The  bail  bond 
may  be  said  to  stand  in  the  place  of  the  defendant 
so  far  as  the  sheriff  is  concerned,  and,  If  properly 
taken,  furnishes  the  sheriff  a  complete  answer  to 
the  requirement  of  the  writ,  directing  him  to  take 
and  produce  the  body  of  the  defendant.  A  bail 
bond  is  given  to  the  sheriff,  and  can  be  taken  only 
where  he  has  custody  of  the  defendant  on  process 
other  than  final,  and  Is  thus  distinguished  from  re- 
cognizance, which  see. 


The  sheriff  can  take  the  bond  only  when  he  has 
custody  of  the  defendant's  body  on  process  other 
than  final. 

When  a  bail  bond,  with  sufficient  securities 
and  properly  prepared,  is  tendered  to  the 
sheriff,  he  must  take  it  and  discharge  the 
defendant;  Stat.  23  Hen.  VI.  c.  10,  §  5. 

The  requisites  of  a  bail  bond  are  that  it 
should  be  under  seal;  1  Term  41S ;  Walker 
v.  Lewis,  3  N.  C.  16 ;  Peyton  v.  Moseley,  3  T. 
B.  Monr.  (Ky.)  80;  Payne  v.  Britton's  Ex'r., 
6  Rand.  (Va.)  101;  should  be  to  the  sheriff 
by  the  name  of  the  office ;  1  Term  422 ;  Loker 
v.  Antonio,  4  McCord  (S.  C.)  175;  Handley's 
Adm'r  v.  Bwings,  4  Bibb  (Ky.)  505;  Conant 
v.  Sheldon,  4  Gray  (Mass.)  300;  conditioned 
in  such  manner  that  performance  is  possible  ; 
3  Campb.  1S1 ;  Fanshor  v.  Stout,  4  N.  J.  L. 
319;  for  a  proper  amount;  Oxley  v.  Turner, 
2  Va.  Cas.  334 ;  Ellis  v.  Robinson,  3  N.  J.  L. 
707;  for  the  defendant's  appearance  at  the 
place  and  day  named  in  the  writ;  1  Term 
418;  Holmes  v.  Chadbourne,  4  Greenl.  (Me.) 
10;  Robeson  \.  Thompson,  9  N.  J.  L.  97; 
Carter  v.  Cockrill,  2  Munf.  (Va.)  448; 
Blanding  v.  Rogers,  2  Brev.  (S.  C.)  394,  4 
Am.  Dec.  595 ;  see  Bail  ;  and  should  describe 
the  action  in  which  the  defendant  is  arrest- 
ed with  sufficient  accuracy  to  distinguish  it ; 
Ralston  v.  Love,  Hard.  (Ky.)  501;  Colburn 
v.  Downes,  10  Mass.  20;  Kelly  v.  Com.,  9 
Watts  (Pa.)  43;  but  need  not  disclose  the 
nature  of  the  suit ;  6  Term  702.  A  bail  bond 
which  fails  to  specify  the  charge  which  the 
principal  is  to  answer  is  void  and  the  de- 
fect cannot  be  remedied  by  testimony;  Peo- 
ple v.  Gillman,  58  Hun  368,  12  N.  Y.  Supp. 
40.  The  sureties  must  be  two  or  more  in 
number  to  relieve  the  sheriff;  2  Bingh.  227; 
Long  v.  Billings,  9  Mass.  482;  Seymour  v. 
Curtiss,  1  Wend.  (N.  Y.)  108;  and  he  may 
insist  upon  three,  or  even  more,  subject  to 
statutory  provisions  on  the  subject;  5  M.  & 
S.  223;  but  the  bond  will  be  binding  if  only 
one  be  taken ;  Glezen  v.  Rood,  2  Mete. 
(Mass.)  490;  Caines  v.  Hunt,  8  Johns.  (N. 
Y.)  358;  Johnson's  Assignee  v.  Williams,  2 
Over.  (Tenn.)  178;  Lane  v.  Smith,  2  Pick. 
(Mass.)  284. 

rutting  in  bail  to  the  action ;  5  Burr.  2683 ; 
and  waiver  of  his  right  to  such  bail  by  the 
plaintiff;  Phillips  v.  Oliver,  5  S.  &  R.  (Pa.) 
419;  Flack  v.  Eager,  4  Johns.  (N.  Y.)  185; 
Culpeper  Agricultural  &  Mfg.  Soc.  v.  Digges, 
6  Rand.  (Va.)  165,  18  Am.  Dec.  708;  Hub- 
bard v.  Shaler,  2  Day  (Conn.)  199;  or  a 
surrender  of  the  person  of  the  defendant, 
constitute  a  performance  or  excuse  from 
the  performance  of  the  condition  of  the 
bond;  1  B.  &  P.  326;  Stockton  v.  Throg- 
morton,  1  Baldw.  148,  Fed.  Cas.  No.  13,- 
463;  Strang  v.  Barber,  1  Johns.  Cas.  (N. 
Y.)  329;  Ellis  v.  Hay,  id.  334;  McClurg  v. 
Bowers,  9  S.  &  R.  (Pa.)  24;  Coolidge  v. 
Cary,  14  Mass.  115 ;  Moyers  v.  Center,  2 
Strobh.  (S.  C.)  439;  Thorn  v.  Delany,  6  Ark. 
219;  see  State  v.  Lingerfelt,  109  N.  C.  775, 


BAIL  BOND 


311 


BAIL  PIECE 


14  S.  E.  75,  14  L.  R.  A.  605;  as  do  many 
other  matters  which  may  he  classed  as 
changes  in  the  circumstances  of  the  defend- 
ant abating  the  suit;  Treasurers  of  State  v. 
Moore's  Ex'rs,  1  N.  &  McC.  (S.  C.)  215 ; 
Champion  v.  Noyes,  .'!  Mass.  4S5;  including 
a  discharge  in  insolvency  ;  Saunders  v.  Bobo, 
2  Bail.  (S.  C.)  492;  Kane  v.  Ingraham,  2 
Johns.  Cas.  (N.  Y.)  403;  Champion  v.  Noyes, 
2  Mass.  481;  Sergeant  v.  Stryker,  16  N.  J. 
L.  4G6,  32  Am.  Dec.  404;  Richmond  v.  De 
Young,  3  Gill  &  J.  (Md.)  G4;  matters  aris- 
ing from  the  negligence  of  the  plaintiff ; 
2  B.  &  P.  558 ;  or  from  irregularities  in  pro- 
ceeding against  the  defendant;  3  Bla.  Com. 
292;  Boggs  v.  Chichester,  13  N.  J.  L.  209; 
Waples  v.  Derrickson,  1  Ilarr.  (Del.)  134. 
Where  the  recognizance  is  for  the  appear- 
ance of  a  prisoner,  and  he  does  appear  and 
pleads  guilty,  it  cannot  be  forfeited  for  fail- 
ure to  appear  subsequently  to  answer  the 
sentence ;  State  v.  Cobb,  44  Mo.  App.  375. 

In  those  states  in  which  the  bail  bond  is 
conditioned  to  abide  the  judgment  of  the 
court  as  well  as  to  appear,  some  of  the  acts 
above  mentioned  will  not  constitute  perform- 
ance. See  Recognizance.  The  plaintiff  may 
demand  from  the  sheriff  an  assignment  of 
the  bail  bond,  and  may  sue  on  it  for  his  own 
benefit;  Stat.  4  Anne,  c.  16,  §  20;  Roop  v. 
Meek,  6  S.  &  R.  (Pa.)  545;  Higgins  v.  Glass, 
47  N.  C.  353 ;  unless  he  has  waived  his  right 
so  to  do;  Huguet  v.  Hallet,  1  Caines  (N.  Y.) 
55 ;  or  has  had  all  the  advantages  he  would 
have  gained  by  entry  of  special  bail ;  Priest- 
man  v.  Keyser,  4  Binn.  (Pa.)  344;  Union 
Bank  of  New  York  v.  Kraft,  2  S.  &  R.  (Pa.) 
284. 

The  remedy  Is  by  scire  facias  in  some 
states ;  Pierce  v.  Read,  2  N.  H.  359 ;  Hunter 
v.  Hill,  3  N.  C.  223;  Harvey  v.  Goodman,  9 
Yerg.  (Tenn.)  273;  Usher  v.  Frink,  2  Brev. 
(S.  C.)  84;  Belknap  v.  Davis,  21  Vt.  409; 
Waughhop  v.  State,  6  Tex.  337.  The  United 
States  is  not  restricted  to  the  remedies  pro- 
vided by  the  laws  of  a  state  in  enforcing  a 
forfeited  bond  taken  in  a  criminal  case,  but 
may  proceed  according  to  the  common  law ; 
U.  S.  v.  Insley,  54  Fed.  221,  4  C.  C.  A.  296. 
See  Justification. 

BAIL  COURT.  A  court  auxiliary  to  the 
court  of  King's  Bench  at  Westminster,  where- 
in points  connected  more  particularly  with 
pleading  and  practice  were  argued  and  de- 
termined. Wharton,  Law  Diet  2d  Lond.  ed. 
It  has  been  abolished. 

BAIL  DOCK.  Formerly  at  the  Old  Bail- 
ey, in  London,  a  small  room  taken  from  one 
of  the  corners  of  the  court,  and  left  open  at 
the  top,  in  which  certain  malefactors  were 
placed  during  trial.     Cent.  Diet. 

BAIL  PIECE.  A  certificate  given  by  a 
judge  or  the  clerk  of  a  court,  or  other  per- 
son authorized  to  keep  the  record,  in  which 
it  is  certified  that  the  bail  became  bail  for 


the  defendant  in  a  certain  sum  and  In  a 
particular  ease.  It  was  the  practice,  for- 
merly, to  write  these  certificates  upon  small 
pieces  of  parchment,  in  the  following  form : — 
In  the  court  of  ,  of  the  Term  of 


-,  in  the  year  of  our  Lord 
City  a  ml  County  of 


Theunis  Thew  is  delivered  to  bail,  upon 
the  taking  of  his  body,  to  Jacobus  Vanzant, 

of  the  city  of  ,  merchant,  and  to  John 

Doe,  of  the  same  city,  yeoman. 

Smith,  Jb.  j     At  the  suit  of 

Attar" y    for    Deft.       |  Philip    Cabswki.i.. 

Taken  and  acknowledged  the  —  day  of 
— ,  A.  D.  ,  before  me.  D.  II. 

See  3  Bla.  Com.  App.;  1   Sellon,  IT.    L39. 

BAILABLE  ACTION.  An  action  in  which 
the  defendant  is  entitled  to  be  discharged 
from  arrest  only  upon  giving  bond  to  an- 
swer. 

BAILABLE  PROCESS.  Process  under 
which  the  sheriff  is  directed  to  arrest  the 
defendant  and  is  required  by  law  to  dis- 
charge him  upon  his  tendering  suitable  bail 
as  security  for  his  appearance.  A  capias 
ad  respondendum  is  bailable;  not  so  a  capias 
ad  satisfaciendum. 

BAILEE.  One  to  whom  goods  are  bailed; 
the  party  to  whom  personal  property  is  de- 
livered under  a  contract  of  bailment 

His  duties  are  to  act  in  good  faith,   and 
perform   his  undertaking,    in   respect   to    the 
property  intrusted  to  him,  with  the  dillf 
and  care  required  by  the  nature  of  his  en- 
gagement. 

When  the  bailee  alone  receives  benefit 
from  the  bailment,  as  where  he  borrows 
goods  or  chattels  for  use,  he  is  bound  to 
exercise  extraordinary  care  and  diligence  in 
preserving  them  from  loss  or  injury ;  Ben- 
nett v.  O'Brien,  37  111.  250;  Ross  v.  Clark. 
27  Mo.  549;  but  he  is  not  an  insurer;  9  C. 
&  P.  383. 

When  the  bailment  is  mutually  beneficial, 
as  where  chattels  are  hired  or  pledged  to  se- 
cure a  debt,  the  bailee  is  bound  to  exercise 
ordinary  care  in  preserving  the  propertj  ; 
Petty  v.  Overall,  -12  Ala.  14.".,  94  Am.  Dec. 
634;  Dearbourn  v.  Bank,  58  Mo.  L'T."  ;  Erie 
Bank  v.  Smith.  .°.  Brewst  (Pa.)  9;  St.  I 
v.    Davidson,    •',    CaL   643. 

When  the  bailee  receives  no  benefit 
the  bailment,  as  where  he  accepts  chattels 
or  money  to  keep  without  recompensi 
undertakes  gratuitously  the  performance  of 
some  commission  in  regard  t<>  them,  he  is 
answerable  only  for  the  use  of  the  ordinary 
care  which  he  bestows  upon  his  own  proper- 
ty of  a  similar  nature:  Edw.  I'ailm.  5  43. 
it  has  been  held  that  such  a  bailee  would  be 

liable  only  for  u-mss  neglcd  or  fraud;  Mc- 
Kay v.  Hamblin,  40  Miss.  172;  Gulledge  v. 
Howard.  L'".  Ark.  61;  Edson  v.  Weston,  7 
Cow.  (N.  Y.)  27S;  Burk  v.  Dempster.  ::: 
Xeb.  4U0,  51  N.  W.  970 ;  Hibernia  Bldg. 


BAILEE 


312 


BAILEE 


v.  McGrath,  154  Pa.  296,  26  Atl.  377,  35 
Am.  St  Rep.  828.  The  case  must  have  rela- 
tion to  the  nature  of  the  property  bailed; 
Jenkins  v.  Motlow,  1  Sneed  (Teuu.)  248,  60 
Am.  Dec.   154. 

These  differing  degrees  of  negligence  have 
been  doubted.     See  Bailment. 

The  bailee  is  bound  to  redeliver  or  return 
the  property,  according  to  the  nature  of  his 
engagement,  as  soon  as  the  purpose  for 
which  it  was  bailed  shall  have  been  accom- 
plished. Nothing  will  excuse  the  bailee  from 
delivery  to  his  bailor,  except  by  showing 
that  the  property  was  taken  from  him  by 
law,  or  by  one  having  a  paramount  title,  or 
that  the  bailor's  title  had  terminated;  Bliven 
v.  R.  Co.,  36  X.  Y.  403;  Burton  v.  Wilkin- 
son, 18  Vt.  ISO,  46  Am.  Dec.  145;  Bliven  v. 
R.  Co.,  35  Barb.   (N.  Y.)   191. 

lie  cannot  dispute  his  bailor's  title ;  Edw. 
Bailm.  §  73;  Dougherty  v.  Chapman,  29  Mo. 
App.  233;  nor  can  he  convey  title  as  against 
the  bailor,  although  the  purchaser  believes 
him  to  be  the  true  owner;  Hendricks  v. 
Evans,  46  Mo.  App.  313. 

The  bailee  has  a  special  property  in  the 
goods  or  chattels  intrusted  to  him,  sufficient 
to  enable  him  to  defend  them  by  suit  against 
all  persons  but  the  rightful  owner.  _  The 
depositary  and  mandatary  acting  gratuitous- 
ly, and  the  finder  of  lost  property,  have  this 
right;  Edw.  Bailm.  §  245;  Garlick  v.  James, 
12  Johns.   (X.  Y.)   147,  7  Am.  Dec.  294. 

A  bailee  with  a  mere  naked  authority, 
having  a  right  to  remuneration  for  his  trou- 
ble, but  coupled  with  no  other  interest,  may 
support  trespass  for  any  injury  amounting 
to  a  trespass  done  while  he  was  in  the  actu- 
al possession  of  the  thing;  Edw.  Bailm.  37; 
Faulkner  v.  Brown,  13  Wend.  (X.  Y.)  63; 
Moran  v.  Packet  Co.,  35  Me.  55.  A  bailee 
may  recover  in  trover  for  goods  wrongfully 
converted  by  a  third  person ;  McGraw  v.  Pat- 
terson, 47  111.  App.  87. 

A  bailee  for  work,  labor,  and  services, 
such  as  a  mechanic  or  artisan  who  receives 
chattels  or  materials  to  be  repaired  or  man- 
ufactured, has  a  lien  upon  the  property  for 
his  services;  2  Pars.  Contr.  145,  146;  3  id. 
270-273;  Wheeler  v.  McFarland,  10  Wend. 
(X.  Y.)  318.  Other  bailees,  innkeepers,  com- 
mon carriers,  and  warehousemen,  also,  have 
a  lien  for  their  charges. 

The  responsibilities  of  a  bailee  cannot  be 
thrust  upon  one  without  his  knowledge  and 
against  his  consent ;  they  must  be  voluntari- 
ly assumed  by  him  or  his  agents;  First  Xat. 
Bank  of  Lyons  v.  Bank,  60  X.  Y.  278,  19  Am. 
Rep.  181  ;  Story,  Bailm.  60.  A  constructive 
acceptance  is  sufficient;  Rodgers  v.  Stophel, 
32  Pa.  Ill,  12  Am.  Dec.  775;  as  where  one 
comes  into  possession  by  mistake ;  1  Str.  505 ; 
Morris  v.  R.  Co.,  1  Dal.\\(X.  Y.)  202;  or  for- 
tuitously; Preston  v.  Xeale,  12  Gray  (Mass.) 
222,  citing  Story,  Bailm.  §  44  a ;  or  where  it 
is  a  custom  of  trade ;  Westeott  v.  Thompson, 
18  X.  Y.  3G3.     Where  property  is  consigned 


to  a  person  as  bailee,  with  specific  directions 
as  to  its  disposal,  he  may  refuse  to  accept; 
Kansas  Elevator  Co.  v.  Harris,  6  Kan.  App. 
89,  49  Pac.  674;  since  a  person  has  the  same 
right  to  decline  becoming  a  bailee  as  he  has 
to  decline  becoming  a  purchaser;  King  v. 
Richards,  6  Whart.  (Pa.)  418,  37  Am.  Dec. 
420;  but  innkeepers,  common  carriers,  wharf- 
ingers or  warehousemen,  as  persons  exercis- 
ing a  public  employment,  are  not  within 
this  rule.     See  those  titles. 

See  also  Schouler,  Bailm.;  Coggs  v.  Ber- 
nard, Sm.  Lead.  Cas. ;  Bailment. 

BAILIE.  In  Scotch  Law.  An  officer  ap- 
pointed to  give  infeftment. 

In  certain  cases  it  is  the  duty  of  the  sheriff,  as 
king's  bailie,  to  act:  generally,  any  one  may  be 
made  bailie,  by  filling  in  his  name  in  the  precept  of 
sasine. 


A  magistrate  possessing  a  limited  criminal 
and  civil  jurisdiction.     Bell,  Diet. 

BAILIFF.  A  person  to  whom  some  au- 
thority, care,  guardianship,  or  jurisdiction  is 
delivered,  committed,  or  intrusted.  Spelman, 
Gloss. 

A  sheriff's  officer  or  deputy.  1  Bla.  Com. 
344. 

A  court  attendant,  sometimes  called  a  tip- 
staff. 

A  magistrate,  who  formerly  administered 
justice  in  the  parliaments  or  courts  of 
France,  answering  to  the  English  sheriffs 
as  mentioned  by  Bracton. 

There  are  still  bailiffs  of  particular  towns  in 
England;  as,  the  bailiff  of  Dover  Castle,  etc.;  oth- 
erwise, bailiffs  are  now  only  officers  or  stewards, 
etc.  ;  as,  bailiffs  of  liberties,  appointed  by  every 
lord  within  his  liberty,  to  serve  writs,  etc.;  bailiffs 
errant  or  itinerant,  appointed  to  go  about  the  coun- 
try for  the  same  purpose  ;  sheriff's  bailiffs,  sheriff's 
officers  to  execute  writs;  these  are  also  called 
bound  bailiffs,  because  they  are  usually  bound  in  a 
bond  to  the  sheriff  for  the  due  execution  of  their 
office ;  bailiffs  of  court-baron,  to  summon  the  court, 
etc.;  bailiffs  of  husbandry,  appointed  by  private  per- 
sons to  collect  their  rents  and  manage  their  estates ; 
water  bailiffs,  officers  in  port  towns  for  searching 
ships,   gathering  tolls,  etc.     Bacon,  Abr. 

A  person  acting  in  a  ministerial  capacity 
who  has  by  delivery  the  custody  and  ad- 
ministration of  lands  or  goods  for  the  bene- 
fit of  the  owner  or  bailor,  and  is  liable  to 
render  an  account  thereof.  Co.  Litt.  271; 
Story,  Eq.  Jur.  §  446;  Barnum  v.  Landon,  25 
Conn.  149. 

The  word  is  derived  from  the  old  French  bailler, 
to  deliver,  and  originally  implied  the  delivery  of 
real  estate,  as  of  land,  woods,  a  house,  a  part  of 
the  fish  in  a  pond;  Ow.  20;  2  Leon.  194;  37  Edw. 
III.  c.  7 ;  10  Hen.  VII.  c.  30;  but  was  afterwards 
extended  to  goods  and  chattels.  Every  bailiff  is 
a  receiver,  but  every  receiver  is  not  a  bailiff. 
Heuce  it  is  a  good  plea  that  the  defendant  never 
was  receiver,  but  was  bailiff.  18  Edw.  III.  16.  See 
Cro.  Eliz.  82,  83;    Fitzh.  N.  B.  134  F;    8  Coke  48  a,  b. 

From  a  bailiff  are  required  administration, 
care,  management,  skill.  He  is  entitled  to 
allowance  for  the  expense  of  administration, 
and  for  all  things  done  in  his  office  accord- 
ing to  his  own  judgment  without  the  special 
direction  of  his  principal,  and  also  for  casu- 


BAILIFF 


313 


BAIL 


al  things  done  in  the  common  course  of  busi- 1 
ness;  Co.  Litt.  89  a ;  Com.  Dig.  B,  12  ;  Brooke,  [ 
Abr.  Ace.  18;  but  not  for  things  foreign  to 
bis  office;  Brooke,  Abr.  Ace.  20,  SS ;  Plowd. 
282  b,  14;  Com.  Dig.  Ace.  E,  13;  Co.  Litt.  172. 
Whereas  a  mere  receiver,  or  :i  receiver  who 
is  not  also  a  bailiff,  is  not  entitled  to  allow- 
ance for  any  expenses;  1  Rolle,  Abr.  119; 
Com.  Dig.  E,  13;  James  v.  Browne,  1  Dall. 
(U.  S.)  340,  1  L.  Ed.  165. 

A  bailiff  may  appear  and  plead  for  bis 
principal  in  an  assize:  "and  his  plea  com- 
mences" thus:  "J.  S.,  bailiff  of  T.  X., -comes. " 
etc.,  not  "T.  N.,  by  his  bailiff  J.  S.,  comes," 
etc.  Co.  2d  Inst.  415;  Koilw.  117  b.  As  to 
what  matters  he  may  plead,  see  Co.  2d  Inst, 
414. 

BAILIWICK.  The  jurisdiction  of  a  sheriff 
or  bailiff.    1  Bla.  Com.  344. 

A  liberty  or  exclusive  jurisdiction  which 
was  exempted  from  the  sheriff  of  the  county, 
and  over  which  the  lord  appointed  a  bailiff, 
with  such  powers  within  his  precinct  as  the 
under-sheriff  exercised  under  the  sheriff  of 
the  county.    Whishaw,  Lex. 

BAILLEW  DE  FONDS.  In  Canadian  Law. 
The  unpaid  vendor  of  real  estate. 

His  claim  is  subordinate  to  that  of  a  sub- 
sequent hypothecary  creditor  claiming  under 
a  conveyance  of  prior  registration:  1  Low. 
C.  1,  6;  but  is  preferred  to  that  of  the  physi- 
cian for  services  during  the  last  illness;  9 
Low.  C.  497. 

BAILLI.  In  Old  French  Law.  One  to 
whom  judicial  authority  was  assigned  or 
delivered  by  a  superior.     Black,  L.  Diet. 

BAILMENT.  A  delivery  of  something  of 
a  personal  nature  by  one  party  to  another, 
to  be  held  according  to  the  purpose  or  object 
of  the  delivery,  and  to  be  returned  or  deliv- 
ered over  when  that  purpose  is  accomplished. 
Prof.  Joel  Parker,  MS.  Lect.  Harvard  Law 
School,  1851. 

The  right  to  hold  may  terminate,  and  a  duty  of 
restoration  may  arise,  before  the  accomplishment 
of  the  purpose ;  but  that  does  not  necessarily  enter 
into  the  definition,  because  such  duty  of  restoration 
was  not  the  original  purpose  of  the  delivery,  but 
arises  upon  a  subsequent  contingency.  The  party 
delivering  the  thing  is  called  the  bailor;  the  party 
receiving   it,  the  bailee. 

Various  attempts  have  been  made  to  give  a  pre- 
cise definition  of  this  term,  upon  some  of  'which 
there  have  been  elaborate  criticisms,  see  Story, 
Bailm.  4th  ed.  §  2,  n.  1,  exemplifying  the  maxim. 
Omnia  dcfinitio  in  lege  pericidosa  est;  but  the  one 
above  given  is  concise,  and  sufficient  for  a  general 
definition. 

Some  other  definitions  are  here  given  as  illus- 
trating the  elements  considered  necessary  to  a  bail- 
ment by  the   different   authors  cited. 

A  delivery  of  a  thing  in  trust  for  some  special  ob- 
ject or  purpose,  and  upon  a  contract,  express  or 
implied,  to  conform  to  the  object  or  purpose  of  the 
trust.    Story,  Bailm.  §  2.    See  Merlin,  Repert.  Bail. 

A  delivery  of  goods  in  trust  upon  a  contract,  ei- 
ther expressed  or  implied,  that  the  trust  shall  be 
faithfully  executed  on  the  part  of  the  bailee.  2  Bla. 
Com.   451.     See   id.   395. 

A  delivery  of  goods  in  trust  upon  a  contract,  ex- 
pressed or  implied,  that  the  trust  shall  be  duly  exe- 


cuted, and  the  goods  restored  by  the  bailee  as  soon 
as  the  purposes  of  the  bailment  shall  be  answered. 
2  Kent  559. 

A  delivery  of  goods  on  a  condition,  express  or  im- 
plied, that  they  shall  be  restored  by  the  bailee  to 
the  bailor,  or  according  to  his  directions,  as  soon  as 
the  purpose  for  which  they  are  bailed  shall  be  an- 
swered.    Jones,  Dailm.  1. 

A  delivery  of  goods  in  trust  on  a  contract,  either 
expressed  or  implied,  that  the  trust  shall  be  duly 
executed,  and  the  goods  redelivered  as  soon  as  the 
time  or  use  for  which  they  were  bailed  shall  havs 
elapsed  or  be   performed.     Jones,   Bailm.    117. 

According  to  Story,  the  contract  does  not  - 
sarily  imply  an  undertaking  to  redeliver  the  goods; 
and  the  first  definition  of  Jones  here  given  would 
seem  to  allow  of  a  similar  conclusion.  On  the  other 
hand,  Blackstonc,  although  his  definition  does  not 
include  the  return,  speaks  of  it  in  all  his  example? 
of  bailments  as  a  duty  of  the  bailee;  and  Kent  says 
that  the  application  of  the  term  to  cases  in 
no  return  or  delivery  or  redelivery  to  the  owner  or 
his  agent  is  contemplated,  is  extending  the  defini- 
tion of  the  term  beyond  its  ordinary  acceptation  In 
the  English  law.  A  consignment  to  a  factor  would 
be  a  bailment  for  sale,  according  to  Story;  while 
according  to  Kent  it  would  not  be  Included  under 
the  term  bailment. 

Sir  William  Jones  has  divided  bailments 
into  five  sorts,  namely:  deposit  um,  or  de- 
posit; mandatum,  or  commission  without  rec- 
ompense; commodatum,  or  loan  for  use  with- 
out pay;  pignus,  or  pawn;  locatum,  or  hiring, 
which  is  always  with  reward.  This  last  is 
subdivided  into  loeatio  rei,  or  hiring,  by 
which  the  hirer  gains  a  temporary  use  of  the 
thing;  loeatio  operis  faciendi,  when  some- 
thing is  to  be  done  to  the  tiling  delivered; 
loeatio  operis  mercium  vchendarum,  when 
the  thing  is  merely  to  be  carried  from  one 
place  to  another.  Jones,  Bailm.  36.  See 
these  several  titles. 

A  better  general  division,  however,  for 
practical  purposes,  is  into  three  kinds.  First, 
those  bailments  which  are  for  the  benefit  of 
the  bailor,  or  of  some  person  whom  he  repre- 
sents. Second,  those  for  the  benefit  of  the 
bailee,  or  some  person  represented  by  him. 
Third,  those  which  are  for  the  benefit  of 
both  parties. 

A  radical  distinction  between  a  bailment 
and  a  chattel  mortgage  is  that,  by  a  mort- 
gage, the  title  is  transferred  to  the  mort- 
gagee, subject  to  be  revested  by  performance 
of  the  condition,  but,  in  case  of  a  bailment, 
the  bailor  retains  the  title  and  parts  with  the 
possession  for  a  special  purpose;  Walker  v. 
Staples,  5  Allen  (Mass.)  34.     See  Mobi 

A  hiring  of  property  for  a  specific  term  is 
a  bailment,  though  the  hirer  has  an  option 
to  purchase  before  the  expiration  of  the 
term;  Hunt  v.  Wyman.  100  Mass.  198;  Col- 
lins v.  R.  Co.,  171  Pa.  243,  33  Atl.  331 :  Bailey 
V.  Colby,  34  N.  H.  29.  66  Am.  Dec  752.  A 
telegraph  company  receiving  a  message  is 
said  to  be  a  bailee  for  hire  and  not  a  com- 
mon carrier:  Western  Union  Telegraph  Co. 
v.  Fontaine,  5S  Ga.  433 ;  and  to  be  governed 
by  the  law  applicable  to  that  class  of  bail- 
ments called  loeatio  operis  faciendi;  Pinck- 
ney  v.  Telegraph  Co..  19  S.  C.  71,  45  Am. 
Rep.  765.     See  Telegraph. 


BAILMENT 


314 


BAILMENT 


An  agreement  by  which  A  Is  to  let  B  have  ] 
a  horse,  in  consideration  that  B  will  let  A 
have  another  horse,  creates  an  exchange,  not 
a  bailment;  King  v.  Fuller,  3  Cai.  (N.  Y.) 
152;  and  where  a  jeweler's  sweepings  were 
delivered  under  an  option  to  return  either 
the  product  or  its  equivalent  in  value,  the 
transaction  was  held  to  be  either  an  ex- 
change or  a  sale;  Austin  v.  Seligman,  21 
Blatchf.  506,  18  Fed.  519. 

Where  animals  are  delivered  to  be  taken 
care  of  for  a  certain  time,  and  at  the  ex- 
piration of  that  time  the  same  number  of 
animals  is  to  be  returned,  and  any  increase 
is  to  be  enjoyed  by  both  parties,  there  is  a 
bailment,  not  a  partnership;  Robinson  v. 
Haas,  40  Cal.  474 ;  so  one  who  hired  a  boat, 
paying  its  running  expenses  out  of  the  earn- 
ings and  dividing  what  was  left  with  the 
owner,  was  held  a  bailee,  prior  to  paying  the 
expenses  and  striking  a  balance;  Ward  v. 
Thompson,  Fed.  Cas.  No.  17,162. 

A  contract  for  hiring  teams  and  carriages 
for  a  certain  time  at  a  certain  price,  which, 
by  its  terms,  is  one  of  bailment,  is  not  con- 
verted into  one  of  service,  so  as  to  render 
the  owner  liable  for  the  acts  of  the  hirer, 
because  the  contract  provides  for  the  rates  to 
be  charged  upon  sub-letting  the  property  and 
limits  the  territory  in  which  it  can  be  used 
and  the  kind  of  work  that  can  be  done,  and 
because  the  owner  employs  an  agent  to  su- 
pervise this  branch  of  his  business,  to  secure 
men  to  undertake  the  work  and  to  make  con- 
tracts with  them  ;  McColligan  v.  R.  Co.,  214 
Pa.  229,  63  Atl.  792,  6  L.  R.  A.  (N.  S.)  544, 
112  Am.  St.  Rep.  739,  distinguishing  L.  R. 
7  C.  P.  272 ;  L.  R.  23  Q.  B.  D.  281 ;  [1902]  2 
K.  B.  38. 

When  the  identical  article  is  to  be  returned 
in  the  same  or  in  some  altered  form,  the  con- 
tract is  one  of  bailment  and  the  title  to  the 
property  is  not  changed ;  but  when  there  is 
no  obligation  to  return  the  specific  article 
and  the  receiver  is  at  liberty  to  return  an- 
other thing  of  equal  value,  then  the  transac- 
tion is  a  sale ;  Sturm  v.  Boker,  150  U.  S. 
312,  14  Sup.  Ct.  99,  37  L.  Ed.  1093.  This  dis- 
tinction or  test  of  a  bailment  is  recognized 
in  Laflin  &  R.  Powder  Co.  v.  Burkhardt,  97 
U.  S.  116,  24  L.  Ed.  973 ;  Walker  v.  Butterick, 
105  Mass.  237;  Middleton  v.  Stone,  111  Pa. 
589,  4  Atl.  523. 

There  are  three  degrees  of  care  and  dili- 
gence required  of  the  bailee,  and  three  de- 
grees of  the  negligence  for  which  he  is  re- 
sponsible, according  to  the  purpose  and  ob- 
ject of  the  bailment,  as  shown  in  those  three 
classes;  and  the  class  serves  to  designate  the 
degree  of  care,  and  of  the  negligence  for 
which  he  is  responsible.  Thus,  in  the  first 
class  the  bailee  is  required  to  exercise  only 
slight  care,  and  is  responsible,  of  course,  only 
for  gross  neglect.  In  the  second  he  is  re- 
quired to  exercise  great  care,  and  is  respon- 
sible even  for  slight  neglect     In  the  third 


he  is  required  to  exercise  ordinary  care,  and 
is  responsible  for  ordinary  neglect.  See 
Bailee. 

It  has  been  held  in  some  cases  that  there 
are,  properly  speaking,  no  degrees  of  negli- 
gence (though  the  above  distinctions  have 
been  generally  maintained  in  the  cases ;  Edw. 
Bailm.  §  61);  11  M.  &  W.  113;  The  New 
WTorld  v.  King,  16  How.  (U.  S.)  474,  14  L.  Ed. 
1019 ;  Perkins  v.  R.  Co.,  24  N.  Y.  207,  82  Am. 
Dec.  281 ;  L.  R.  1  C.  P.  612. 

When  a  person  receives  the  goods  of  an- 
other to  keep  without  recompense,  and  he 
acts  in  good  faith,  keeping  them  as  his  own, 
he  is  not  answerable  for  their  loss  or  injury. 
As  he  derives  no  benefit  from  the  bailment, 
he  is  responsible  only  for  bad  faith  or  gross 
negligence ;  Smith  v.  Bank,  99  Mass.  605,  97 
Am.  Dec.  59 ;  2  Ad.  &  E.  256 ;  Griffith  v.  Zip- 
perwick,  28  Ohio  St.  388;  Laforge  v.  Mor- 
gan, 11  Mart.  (O.  S.)  La.  462 ;  Knowles  v.  R. 
Co.,  38  Me.  55,  61  Am.  Dec.  234;  Tracy  v. 
Wood,  3  Mas.  132,  Fed.  Cas.  No.  14,130;  2 
C.  B.  877;  Burs  v.  Dempster,  34  Neb.  426, 
51  N.  W.  976;  Kincheloe  v.  Priest,  89  Mo. 
240,  1  S.  W.  235,  58  Am.  Rep.  117.  But  this 
obligation  may  be  enlarged  or  decreased  by 
a  special  acceptance;  2  Kent  565;  Story, 
Bailm.  §  33 ;  2  Ld.  Raym.  910 ;  Ames  v.  Bel- 
den,  17  Barb.  (N.  Y.)  515 ;  and  a  spontaneous 
offer  on  the  part  of  the  bailee  increases  the 
amount  of  care  required  of  him ;  2  Kent  565. 
Knowledge  by  the  bailee  of  the  character  of 
the  goods;  Jones,  Bailm.  38;  and  by  the 
bailor  of  the  manner  in  which  the  bailee 
will  keep  them;  Knowles  v.  R.  Co.,  38  Me.  55, 
61  Am.  Dec.  234;  are  important  circum- 
stances. 

A  bank  (national  or  otherwise)  accustomed 
to  keep  securities,  whether  authorized  to  do 
so  by  its  charter  or  not,  is  liable  for  their 
loss  by  gross  carelessness;  First  Nat.  Bank 
v.  Graham,  79  Pa.  106,  21  Am.  Rep.  49 ;  Turn- 
er v.  Bank,  26  la.  562;  Chattahoochee  Nat. 
Bank  v.  Schley,  58  Ga.  369 ;  Gray  v.  Merri- 
am,  148  111.  179,  35  N.  E.  810,  32  L.  R.  A. 
769,  39  Am.  St.  Rep.  172;  Preston  v.  Prath- 
er,  137  U.  S.  604,  11  Sup.  Ct.  162,  34  L.  Ed. 
788 ;  see  First  Nat.  Bank  v.  Bank,  60  N.  Y. 
278,  19  Am.  Rep.  181;  contra,  Whitney  v. 
Bank,  50  Vt.  389,  28  Am.  Rep.  503.  A  na- 
tional bank  has  power  to  receive  such  de- 
posits; National  Bank  v.  Graham,  100  U.  S. 
699,  25  L.  Ed.  750. 

So  when  a  person  receives  an  article  and 
undertakes  gratuitously  some  commission  in 
respect  to  it,  as  to  carry  it  from  one  place 
to  another,  he  is  only  liable  for  its  injury 
or  loss  through  his  gross  negligence.  It  is 
enough  if  he  keep  or  carry  it  as  he  does  his 
own  property ;  6  C.  Rob.  Adm.  141 ;  Tracy 
v.  Wood,  3  Mas.  132,  Fed.  Cas.  No.  14,130: 
and  cases  above.  A  treasurer  of  an  associa- 
tion who  receives  no  compensation  is  only 
liable  for  gross  negligence  in  paying  out 
funds,  as  he  is  a  gratuitous  bailee ;   Hibernia 


BAILM  K N'T 


315 


BAILMENT 


Building  Ass'n  v.  McGrath,  154  Pa.  296,  26 
Atl.  377,  35  Am.  St.  Bop.  S28.  See  Mandate. 
As  to  the  amount  of  skill  such  bailee  must 
possess  and  exercise,  see  2  Kent  509;  Story, 
Bailm.  §  174;  Fellowes  v.  Gordon,  8  B.  Monr. 
(Ky.)  -115;  Beardslee  v.  Bichardson,  11  Wend. 
(N.  T.)  25,  25  Am.  Dec.  596;  Ferguson  v.  Por- 
ter, 3  Fla.  27;  11  M.  &  W.  113;  and  more 
skill  may  be  required  in  cases  of  voluntary 
offers  or  special  undertakings;   2  Kent  .".7:;. 

The  borrower,  on  the  other  hand,  who  re- 
ceives the  entire  benefit  of  the  bailment,  must 
use  extraordinary  diligence  in  taking  care 
of  the  thing  borrowed,  and  is  responsible  for 
even  the  slightest  neglect ;  Niblett  v.  White's 
Heirs,  7  La.  253;  Moore  v.  Westervelt,  27 
N.  Y.  234 ;  2  Ld.  Baym.  909;  Ross  v.  Clark, 
27  Mo.  549;  Green  v.  Hollingsworth,  5  Dana 
<Ky.)  173,  30  Am.  Dec.  680.  See  Hagebush  v. 
Bagland,  78  111.  40. 

He  must  apply  it  only  to  the  very  purpose 
for  which  it  was  borrowed;  2  Ld.  Baym. 
915;  Story,  Bailm.  §  232;  cannot  permit 
any  other  person  to  use  it ;  1  Mod.  210 ;  Wil- 
cox v.  Hogan,  5  Ind.  546 ;  Sarjeant  v.  Blunt, 
16  Johns.  (N.  Y.)  76 ;  cannot  keep  it  beyond 
the  time  limited ;  Wheelock  v.  Wheelwright, 
5  Mass.  104 ;  and  cannot  keep  it  as  a  pledge 
for  demands  otherwise  arising  against  the 
bailor;  2  Kent  574.  See  9  C.  &  P.  383 ;  Chain- 
berlin  v.  Cobb,  32  la.  161. 

A  borrower  cannot  recover  for  injuries 
caused  by  a  defect  in  the  thing  borrowed, 
where  such  defect  is  hidden  and  the  bailor 
had  no  knowledge  of  it;  [1S99]  1  Q.  B.  D. 
145.  In  a  bailment  for  hire  it  is  said  to  be 
the  duty  of  the  bailor  to  use  due  care  to  find 
hidden  defects;  6  Q.  B.  Div.  685.  The  ob- 
ligation of  the  lender  goes  no  further  than 
to  make  known  to  the  borrower  a  defect  in 
the  subject  matter  of  the  bailment  should  he 
know  of  the  existence  of  such  defect;  he  is 
not  liable  for  an  injury  caused  by  a  defect, 
even  if  he  might  have  known  of  it;  6  H.  & 
N.  329;  8  El.  &  Bl.  1035;  Gagnon  v.  Dana, 
09  N.  H.  264,  39  Atl.  9S2,  41  L.  B.  A.  3S9, 
76  Am.  St.  Bep.  170;  but  if  he  knows  of  a 
defect  and  by  gross  negligence  omits  to  in- 
form the  borrower  of  it,  an  action  may  be 
maintained ;    68  L.  J.  Q.  B.  N.  S.  147. 

When  the  property  has  been  lost  or  de- 
stroyed without  fault  on  his  part,  he  is  not 
responsible  to  the  owner;  Clark  v.  U.  S.,  95 
1  .  S.  539,  24  L.  Ed.  51S ;  Sun  Printing  & 
Publishing  Ass'n  v.  Moore,  183  U.  S.  653, 
22  Sup.  Ct.  240,  46  L.  Ed.  366 ;  but  when  he 
contracts  either  expressly  or  by  fair  implica- 
tion to  return  the  thing  even  though  it  has 
been  lost  or  destroyed  without  negligence  on 
the  bailee's  part,  such  contract  must  be  en- 
forced according  to  its  terms;  Sturm  v.  Bo- 
ker,  150  U.  S.  312,  14  Sup.  Ct.  99,  37  L.  Ed. 
1093;  Sun  Printing  &  Publishing  Ass'n  v. 
Moore,  1S3  U.  S.  654,  22  Sup.  Ct  240,  46  Lu 
Ed.  366. 

In  the  third  class  of  bailments  under  the 
division  here  adopted,   the   benefits   derived 


from  the  contract  are  reciprocal :  it  is  ad- 
-■'ous  to  both  parties.  In  the  case  of  a 
given  on  a  loan  of  money  or  to  a 
the  payment  of  a  debt,  the  one  party  g 
a  credit  and  the  other  security  by  the 
tract.  And  in  a  bailment  for  hire,  one  party 
acquires  the  use  of  the  thing  bailed  and  the 
other  the  price  paid  therefor:  the  advau 
is  mutual.  So  in  a  bailment  for  labor  and 
services,  as  when  one  person  delivers  mate- 
rials to  another  to  be  manufactured,  the 
bailee  is  paid  for  his  services  and  the  owner 
receives  back  his  property  enhanced  in  val- 
ue by  the  process  of  manufacture.  In  these 
and  like  cases  the  parties  stand  upon  an 
equal  footing:  there  is  a  perfect  mutuality 
between  them.  And  therefore  the  bailee  can 
only  be  held  responsible  for  the  use  of  ordi- 
nary care  and  common  prudence  in  the  pres- 
ervation of  the  property  bailed;  Knapp  v. 
Curtis,  9  Wend.  (N.  Y.)  60;  5  Bingh.  217; 
Bakwell  v.  Talbot,  4  Dana  (Ky.)  217;  Fulton 
v.  Alexander,  21  Tex.  148 ;  Mayor  and  Coun- 
cil of  Columbus  v.  Howard,  6  Ga.  213 ;  Brown 
v.  Waterman,  10  Cush.  (Mass.)  117.  A  bailee 
for  hire  is  supposed  to  take  such  care  of 
property  as  a  reasonably  prudent  man  would 
of  his  own ;  Cloyd  v.  Steiger,  139  111.  41,  28 
N.  E.  987. 

The  common  law  does  not  recognize  the 
rule  of  the  civil  law  that  the  bailor  for  hire 
is  bound  to  keep  the  thing  in  repair,  and  in 
the  absence  of  provision  the  question  as  to 
which  party  is  bound  to  repair  depends 
largely  on  custom  and  usage;  Central  Trust 
Co.  of  New  York  v.  Ry.  Co.,  50  Fed.  857. 

The  depositary  or  mandatary  has  a  right 
to  the  possession  as  agaiust  everybody  but 
the  true  owner;  Story,  Bailm.  §  93;  Pitt  v. 
Albritton,  34  N.  C.  74;  4  E.  L.  &  Bq.  438; 
see  McMahon  v.  Sloan,  12  I'a.  229,  51  Am. 
Dec.  601;  but  is  excused  if  he  delivers  it  to 
the  person  who  gave  it  to  him,  supposing  him 
the  true  owner;  Nelson  v.  Iverson,  17  Ala. 
216;  and  may  maintain  an  action  against  a 
wrong-doer;  1  B.  &  Aid.  59;  Chamberlain 
v.  West,  37  Minn.  54,  33  N.  W.  11  1. 

It  is  contended  by  Story  that  a  mere  de- 
pository has  no  special  property  in  the  de- 
posit, but  a  custody  only;  Story.  Bailm.  §§ 
93,  133,  citing  Norton  v.  People,  8  Cow.  (N. 
Y.)  137;  Com.  v.  Morse.  14  Mass.  217;  and 
that  there  is  a  clear  distinction  between  the 
custody  of  a  thing  and  the  properly,  wheth- 
er general  or  special,  in  a  thing;  1  Ten 
If  a  depository  has  a  special  property  in  the 
deposit,  it  must  be  equally  true  that  every 
other  bailee  has,  and  indeed  that  every  per- 
son who  lawfully  has  the  custody  of  a  thing, 
with  the  assent  of  the  owner,  has  a  spe  ial 
property  in  it.  Under  such  circumstances, 
the  distinction  between  a  special  property 
and  a  mere  custody  would  seem  to  be  almost, 
if  not  entirely,  evanescent;  Story,  Bailm.  § 
93  a,  citing  the  leading  case  of  Hartop  v. 
Iloare,  3  Atk.  44,   where  certain  jewels  en- 


BAILMENT 


316 


BAILMENT 


closed  in  a  sealed  paper  and  sealed  bag  had 
been  placed  by  the  owner  with  a  jeweller  for 
safe  custody,  and  the  latter  afterwards 
broke  the  seals  and  pledged  the  jewels  to 
Iloare  for  an  advance  of  money.  The  owner 
brought  suit  against  the  pledgee  and  the 
court  held,  first,  that  the  delivery  to  the 
jeweller  was  a  mere  naked  bailment  for  the 
use  of  the  bailor,  and  the  jeweller  was  ;i 
mere  depository,  having  no  general  or  special 
property  in  the  jewels,  and  no  right  to  dis- 
pose of  them;  secondly,  that  as  the  pledge 
by  the  jeweller  was  wrongful,  the  refusal  by 
the  defendant  to  deliver  the  jewels  to  the 
owner  was  a  tortious  conversion.  In  a  crit- 
icism on  this  view,  it  has  been  said  that  that 
case  does  not  constitute  a  sufficient  authority 
for  denying  the  bailee's  right  to  a  special 
property  in  the  bailment;  that  although  the 
jeweller  came  into  possession  of  the  jewels 
by  right  originally,  yet  when  he  broke  the 
and  took  them  out  of  the  bag,  he  was 
possessor  mala  fide;  and  that  from  this  it 
:  be  inferred  that  the  principle  was  ad- 
mit! ed  that,  as  respects  third  persons,  a  de- 
pository  has  a  special  property,  as  other- 
wise there  is  no  pertinency  in  resting  the 
want  of  it  on  the  circumstances  of  his  break- 
ing the  seals  and  taking  the  jewels  out  of 
the  envelopes,  and  thereby  divesting  himself 
of  the  special  property  he  originally  had,  and 
in  fact  ceasing  to  be  a  bailee ;  16  Am.  Jur. 
2S0.  Sir  William  Jones  says:  "The  general 
bailee  has  unquestionably  a  limited  property 
in  tiie  goods  entrusted  to  his  care;"  Jones, 
Bailm.  80;  and  Lord  Coke  says:  "Bailment 
maketh  a  privity.  If  one  has  goods  as  bailee 
where  he  hath  only  a  possession,  and  no 
property,  yet  he  shall  have  an  action  for 
them ;"  2  Bulst.  300.  If  his  possession  be 
violated  he  may  maintain  trespass  or  tro- 
ver ;  Waterman  v.  Robinson,  5  Mass.  303, 
where  it  was  held  that  he  had  no  special 
property  by  which  he  could  maintain  re- 
plevin. 

A  bailee  of  an  officer  in  cases  of  an  attach- 
ment of  property  has  a  sufficient  property 
to  maintain  an  action  against  a  stranger  for 
any  dispossession  or  injury  to  the  goods  at- 
tached ;  Odiorne  v.  Colley,  2  N.  H.  70,  9  Am. 
Dec.  39;    Bender  v.  Manning,  2  N.  H.  289. 

A  borrower  has  no  property  in  the  thing 
borrowed,  but  may  protect  his  possession  by 
an  action  against  the  wrong-doer ;  2  Bingh. 
173 ;  Hurd  v.  West,  7  Cow.  (N.  Y.)  752.  As  to 
the  property  in  case  of  a  pledge,  see  Pledge. 

In  bailments  for  storage  the  bailee  ac- 
quires a  right  to  defend  the  property  as 
against  third  parties  and  strangers,  and  is 
answerable  for  loss  or  injury  occasioned 
through  his  failure  to  exercise  ordinary 
care.     See  Warehouseman;  Trover. 

As  to  the  lien  of  warehousemen  and  wharf- 
ingers for  their  charges  on  the  goods  stored 
with  them,  see  Lien. 

The  hire  of  things  for  use  transfers  a  spe- 


cial property  in  them  for  the  use  agreed  up- 
on. The  price  paid  is  the  consideration  for 
the  use:  so  that  the  hirer  becomes  the  tem- 
porary proprietor  of  the  things  bailed,  and 
has  the  right  to  detain  them  from  the  gen- 
eral owner  for  the  term  or  use  stipulated  for. 
It  is  a  contract  of  letting  for  hire,  analogous 
to  a  lease  of  real  estate  for  a  given  term. 
Edw.  Bailm.  §  325.    See  Hire. 

In  a  general  sense,  the  hire  of  labor  and 
services  is  the  essence  of  every  species  of 
bailment  in  which  a  compensation  is  to  be 
paid  for  care  and  attention  or  labor  bestow- 
ed upon  the  things  bailed.  The  contracts  of 
warehousemen,  carriers,  forwarding  and  com- 
mission merchants,  factors,  and  other  agents 
who  receive  goods  to  deliver,  carry,  keep,  for- 
ward, or  sell,  are  all  of  this  nature,  and  in- 
volve a  hiring  of  services.  In  a  more  limited 
sense,  a  bailment  for  labor  and  services  is  a 
contract  by  which  materials  are  delivered  to 
an  artisan,  mechanic,  or  manufacturer  to  be 
made  into  some  new  form.  The  title  to  the 
property  remains  in  the  party  delivering  the 
goods,  and  the  workman  acquires  a  lien  upon 
them  for  services  bestowed  upon  the  proper- 
ty. Cloth  delivered  to  a  tailor  to  be  made  up 
into  a  garment,  a  gem  or  plate  delivered  to  a 
jeweller  to  be  set  or  engraved,  a  watch  to 
be  repaired,  may  be  taken  as  illustrations  of 
the  contract.  The  owner,  who  does  not  part 
with  his  title,  may  come  and  take  his  prop- 
erty after  the  work  has  been  done;  but  the 
workman  has  his  lien  upon  it  for  his  reason- 
able compensation. 

Where  property  is  temporarily  in  charge 
of  an  incidental  bailee  such  as  a  shopkeeper, 
restaurant  keeper,  barber,  bathhouse  pro- 
prietor, or  the  like,  as  an  incident  to  his  gen- 
eral business,  the  liability  of  the  bailee  does 
not  differ  in  any  respect  from  that  of  other 
bailees  for  hire;  Tombler  v.  Koelling,  60 
Ark.  62,  28  S.  W.  795,  27  L.  R.  A.  502,  46  Am. 
St.  Rep.  146 ;  Dilberto  v.  Harris,  95  Ga.  571, 
23  S.  E.  112;  Donlin  v.  McQuade,  61  Mich. 
275,  28  N.  W.  114 ;  Bunnell  v.  Stern,  122  N. 
Y.  539,  25  N.  E.  910,  10  L.  R.  A.  4S1,  19  Am. 
St.  Rep.  519;  Buttman  v.  Dennett,  9  Misc. 
462,  30  N.  Y.  Supp.  247 ;  Woodruff  v.  Paint- 
er, 150  Pa.  91,  24  Atl.  621,  16  L.  R.  A.  451,  30 
Am.  St.  Rep.  786 ;  Goff  v.  Wanamaker,  25  W. 
N.  C.  (Pa.)  35S ;  Walpert  v.  Bohan,  126  Ga. 
532,  55  S.  E.  181,  6  L.'  R.  A.  (N.  S.)  828,  115 
Am.  St.  Rep.  114,  8  Ann.  Cas.  89;  but  see 
Powers  v.  O'Neill,  89  Hun  129,  34  N.  Y. 
Supp.  1007;  and  contributory  negligence  on 
the  part  of  the  bailor  in  such  cases  may  re- 
lieve the  bailee  from  liability ;  Powers  v. 
O'Neill,  89  Hun  129,  34  N.  Y.  Supp.  1007.  An 
innkeeper  who  conducts  a  public  bath  house 
as  an  incident  to  his  business  is  not  liable 
to  a  guest  as  an  innkeeper,  but  as  a  bailee 
for  hire ;  Walpert  v.  Bohan,  126  Ga.  532,  55 
S.  E.  181,  6  L.  R.  A.  (N.  S.)  82S,  115  Am.  St. 
Rep.  114,  8  Ann.  Cas.  89;  Minor  v.  Staples. 
71  Me.  316,  36  Am.  Rep.  31&    It  is  said  that 


BAILMENT 


317 


BALANCE 


the  implied  contract  on  the  part  of  a  shop- 
keeper (the  consideration  for  which  is  the 
chance  of  profit)  that,  if  customers  come  to 
the  store,  no  harm  that  can  reasonably  be 
averted  shall  overtake  them,  must  be  held 
to  extend  to  the  safety  of  such  property  as 
the  customers  necessarily  or  habitually  car- 
ry with  them ;  Woodruff  v.  Painter,  150  Pa. 
91,  24  Atl.  621,  1G  L.  R.  A.  451,  30  Am.  St. 
Rep.  78G;  and  that  the  proprietor  should 
provide  a  safe  place  for  the  keeping  of  such 
property  when  the  customer  while  trying  on 
apparel  must  necessarily  lay  aside  his  own; 
Bunnell  v.  Stern,  122  N.  Y.  539,  25  N.  E.  910, 
10  L.  R.  A.  481,  19  Am.  St.  Rep.  519;  but 
see  Wamser  v.  Browning,  King  &  Co.,  187 
N.  Y.  87,  79  N.  E.  861,  10  L.  R.  A.  (N.  S.)  314, 
where  the  customer  knowing  the  clerks  to  be 
busy,  proceeded  to  wait  on  himself,  knowing 
there  was  no  one  but  himself  to  watch  the 
garments  he  laid  aside. 

When  the  business  of  the  bailee  implies 
skill,  a  want  of  such  skill  as  is  customary  in 
his  calling  will  render  him  liable  as  for  gross 
negligence  ;  Western  Union  Tel.  Co.  v.  Blanch- 
ard,  68  Ga.  299,  45  Am.  Rep.  480;  Stanton 
v.  Bell,  9  N.  C.  145,  11  Am.  Dec.  744;  even 
though  the  bailment  is  for  the  sole  benefit  of 
the  bailor  and  the  bailee  receives  no  compen- 
sation ;  Conner  v.  Wiiiton,  8  Ind.  315,  65  Am. 
Dec.  761. 

As  to  the  duties  and  liabilities  of  common 
carriers  and  innkeepers,  see  those  titles.  As 
to  warehouse  receipts,  see  that  title.  See 
DErosiT;  Mandate;  Hire;  Agistor;  Sale; 
Rolling  Stock  ;  Lien. 

BAILOR.  He  who  bails  a  thing  to  an- 
other. 

The  bailor  must  act  with  good  faith  to- 
wards the  bailee;  Story,  Bailm.  §  74;  per- 
mit him  to  enjoy  the  thing  bailed  according 
to  contract ;  and  in  some  bailments,  as  hir- 
ing, warrant  the  title  and  possession  of- the 
thing  hired,  and,  probably,  keep  it  in  suit- 
able order  and  repair  for  the  purpose  of  the 
bailment;   Story,  Bailm.  §  388. 

BAIRN'S  PART.    See  Legitim. 

BAITING.  To  bait  is  to  attack  with  vio- 
lence ;  to  provoke  and  harass.  2  A.  &  E. 
Encyc.  63 ;   L.  R.  9  Q.  B.  3S0. 

BAL/ENA.  A  large  fish,  called  by  Black- 
stone  a  whale.  Of  this  the  king  had  the 
head  and  the  queen  the  tail  as  a  perquisite 
whenever  one  was  taken  on  the  coast  of 
England.  Trynne,  Ann.  Reg.  127 ;  1  Bla. 
Com.  221. 

BALANCE.  The  amount  which  remains 
due  by  one  of  two  persons,  who  have  been 
dealing  together,  to  the  other,  after  the  set- 
tlement of  their  accounts. 

In  the  case  of  mutual  debts,  the  balance 
only  can  be  recovered  by  the  assignee  of  an 
insolvent  or  the  executor  of  a  deceased  per- 
son.    But  this  mutuality  must  have  existed 


at  the  time  of  the  assignment  by  the  insolv- 
ent, or  at  the  death  of  the  testator. 

It  is  often  used  in  the  sense  of  residue  or 
remainder ;  Lopez  v.  Lopez.  23  S.  C.  269 ; 
Skinner  v.  Lamb,  25  N.  C.  155. 

The  term  general  balance  is  sometimes 
used  to  signify  the  difference  which  is  due 
to  a  party  claiming  a  lien  on  goods  in  his 
hands  for  work  or  labor  done,  or  money  ex- 
pended in  relation  to  those  and  other  goods 
of  the  debtor;  3  B.  &  P.  48£ 
McWilliams  v.  Allan,  45  Mo.  573. 

The  phrase  "net  balance"  as  applied  to  the 
proceeds  of  the  sale  of  stock  means  in  com- 
mercial usage  the  balance  of  the  proceeds 
after  deducting  the  expenses  incident  to  the 
sale;    Evans  v.  Wain,  71  Pa.  74. 

BALANCE  OF  POWER.  In  International 
Law.  A  distribution  and  an  opposition  of 
forces,  forming  one  system,  so  that  no  state 
shall  be  in  a  position,  either  alone  or  united 
with  others,  to  impose  its  will  on  any  other 
state  or  interfere  with  its  independence.  Or- 
tolan. 

BALANCE  SHEET.  A  statement  made  by 
merchants  and  others  to  show  the  true  state 
of  a  particular  business.  A  balance  sheet 
should  exhibit  all  the  balances  of  debits  and 
credits,  also  the  value  of  merchandise,  and 
the  result  of  the  whole. 

BALD  10.  In  Spanish  Law.  Vacant  land 
having  no  particular  owuer,  and  usually 
abandoned  to  the  public  for  the  purposes  of 
pasture. 

BALE.  A  quantity  or  pack  of  goods  or 
merchandise,  wrapped  or  packed  in  cloth  and 
tightly  corded.     Wharton. 

A  bale  of  cotton  means  a  bale  compressed 
so  as  to  occupy  less  space  than  if  in  ; 
2  Car.  &  P.  525. 

BALI  US.  In  Civil  Law.  A  teacher;  one 
who  has  the  care  of  youth ;  a  tutor ;  a  guard- 
ian.   Du  Cange,  Bajultis;    Spelmau,  Gl 

BALI V A  (spelled  also  Balliva).  Equiva- 
lent to  Balivatus.  Bolivia,  a  bailiwick:  the 
jurisdiction  of  a  sheriff;  the  whole  district 
within  which  the  trust  of  the  sheriff  was  to 
be  executed.  Cowell.  Occurring  in  the  re- 
turn of  the  sheriff,  non  est  inventus  in  balliva 
mea  (he  has  not  been  found  in  my  baili- 
wick) ;  afterwards  abbreviated  to  the  simple 
non  est  inventus:    3  Bla.  Coin.  L1^ 

BALLAST.  That  which  is  used  for  trim- 
ming a  ship  to  bring  it  down  to  a  draft  of 
water  proper  and  safe  for  sailing.  Great 
Western  Ins.  Co.  v.  Thwing,  13  WalL  (U.  S.) 
674,  20  L.  Ed.  607. 

BALLASTAGE.  A  toll  paid  for  the  privi- 
lege of  taking  up  ballast  from  the  bottom 
of  the  port.  This  arises  from  the  property 
In  the  soil ;   2  Chitty,  Coram.  Law  16. 

V 

BALLIUM.  A  fortress  or  bulwark;  also 
bail.     Cunningham. 


v 


BALLIVO  AMOVEXDO 


318 


BANCUS  REGIS 


BALLIVO  AMOVENDO  (L.  Lat.  for  re- 
moving a  bailiff).  A  writ  to  remove  a  bailiff 
out  of  his  office. 

BALLOT.  Originally  a  ball  used  in  vot- 
ing ;  hence,  a  piece  of  paper,  or  other  thing 
used  for  the  same  purpose ;  whole  amount  of 
votes  cast. 

The  act  of  voting  by  balls  or  tickets. 
Webster. 

A  ballot  or  ticket  is  a  single  piece  of  paper 
containing  the  names  of  the  candidates  and 
the  offices  for  which  they  are  running.  Peo- 
ple v.  Holden,  28  Cal.  136.     See  Election. 

BAN.      In    Old    English   and    Civil    Law.      A 

proclamation;  a  public  notice;  the  announce- 
ment of  an  intended  marriage.  Cowell.  An 
excommunication;  a  curse,  publicly  pro- 
nounced. A  proclamation  of  silence  made  by 
a  crier  in  court  before  the  meeting  of  cham- 
pions in  combat.  Cowell.  A  statute,  edict, 
or  command ;   a  fine,  or  penalty. 

An  open  field ;  tbe  outskirts  of  a  village ; 
a  territory  endowed  with  certain  privileges. 

A  summons;  as  arricre  ban.  Spelman, 
Gloss. 

In  French  Law.  The  right  of  announcing 
the  time  of  moving,  reaping,  and  gathering 
the  vintage,  exercised  by  certain  seignorial 
lords.    Guyot,  Rep.  Univ. 

BANALITY.  In  Canadian  Law.  The  right 
by  virtue  of  which  a  lord  subjects  his  vassals 
to  grind  at  his  mill,  bake  at  his  oven,  etc. 
Used  also  of  the  region  within  which  this 
right  applied.  Guyot,  R6p.  Univ.  It  pre- 
vents the  erection  of  a  mill  within  the  seign- 
orial limits;  1  Low.  C.  31 ;  whether  steam 
or  water;   3  Low.  C.  1. 

BANC  (Fr.  bench).  The  seat  of  judg- 
ment ;  as,  banc  le  roy,  the  king's  bench ; 
lane  le  common  pleas,  the  bench  of  common 
pleas. 

The  meeting  of  all  the  judges,  or  such  as 
may  form  a  quorum,  as  distinguished  from 
sittings  at  Nisi  Prim :  as,  "the  court  sit  in 
banc."    Cowell. 

BAN  CI  NARRATORES.  Advocates;  coun- 
tors ;  Serjeants.  Applied  to  advocates  in  the 
common  pleas  courts.     1  Bla.  Com.  24. 

BANCUS  (Lat).  A  bench;  the  seat  or 
bench  of  justice;  a  stall  or  table  on  which 
goods  are  exposed  for  sale.  Often  used  for 
the  court  itself. 

A  full  bench,  when  all  the  judges  are 
present.    Cowell;    Spelman,  Gloss. 

The  English  court  of  common  pleas  was 
formerly  called  Bancws.  Viner,  Abr.  Courts 
(M).     See  Bench  ;   Common  Bench. 

BANCUS  REGIN/E  (Lat.).  The  Queen's 
Bench. 

BANCUS  REGIS  (Lat).  The  King's 
Bench ;  the  supreme  tribunal  of  the  king 
after  parliament.     3  Bla.  Com.  41. 

In  banco  regis,  in  or  before  the  court  of 
king's  bench. 


The  king  has  several  times  sat  in  his  own 
person  on  the  bench  in  this  court,  and  all 
the  proceedings  are  said  to  be  coram  rege 
ipso  (before  the  king  himself).  But  James 
I.  was  not  allowed  to  deliver  an  opinion 
although  sitting  in  banco  regis.  Viner,  Abr. 
Courts  (H  L)  ;  3  Bla.  Com.  41;  Co.  Litt. 
71  C. 

BANDIT.  A  man  outlawed;  one  under 
ban. 

BANE.  A  malefactor.  Bracton,  L  1,  t  8, 
c.  1. 

BANISHMENT.  A  punishment  inflicted 
upon  criminals,  by  compelling  them  to  quit 
a  city,  place,  or  country  for  a  specified  period 
of  time,  or  for  life.  See  Cooper  v.  Telfair, 
4  Dall.  (U.  S.)  14,  1  L.  Ed.  721.  It  is  syn- 
onymous with  exilement  and  imports  a  com- 
pulsory loss  of  one's  country.    3  P.  Wms.  38*. 

BANK  (Anglicized  form  of  bancus,  a 
bench).    The  bench  of  justice. 

Sittings  in  bank  (or  banc).  An  official 
meeting  of  four  of  the  judges  of  a  common- 
law  court.    Wharton,  Lex. 

Used  of  a  court  sitting  for  the  determination  of 
law  points,  as  distinguished  from  nisi  prius  sittings 
to  determine  facts.    3  Bla.  Com.  28,  n. 

Bank  le  Roy.  The  king's  bench.  Finch, 
198. 

The  bank  of  the  sea  is  the  utmost  border 
of  dry  land.    Callis,  Sewers  73. 

In  Commercial  Law.  A  place  for  the  de- 
posit of  money ;  Oulton  v.  Institution,  17 
Wall.  (U.  S.)  118,  21  L.  Ed.  618.  See  Curtis 
v.  Leavitt,  15  N.  Y.  166;  Pratt  v.  Short,  79 
N.  Y.  440,  35  Am.  Rep.  531;  People  v.  R.  Co., 
12  Mich.  389,  86  Am.  Dec.  64. 

The  business  of  banking,  as  defined  by  law 
and  custom,  consists  in  the  issue  of  notes 
payable  on  demand  intended  to  circulate  as 
money  when  the  banks  are  banks  of  issue; 
in  receiving  deposits  payable  on  demand;  in 
discounting  commercial  paper ;  making  loans 
of  money  on  collateral  security;  buying  and 
selling  bills  of  exchange;  negotiating  loans, 
and  dealing  in  negotiable  securities  issued 
by  the  government,  state  and  national,  and 
municipal  and  other  corporations.  Mercan- 
tile Bank  v.  New  York,  121  U.  S.  138,  156,  7 
Sup.  Ct  826,  30  L.  Ed.  895. 

Banks  are  said  to  be  of  three  kinds,  viz.; 
of  deposit,  of  discount,  and  of  circulation, 
they  generally  exercise  all  these  functions; 
Oulton  v.  Sav.  Soc,  17  Wall.  (U.  S.)  118,  21 
L.  Ed.  618. 

It  was  the  custom  of  the  early  money-changers  to 
transact  their  business  in  public  places,  at  the 
doors  of  churches,  at  markets,  and,  among  the  Jews, 
in  the  temple  (Mark  xi.  15).  They  used  tables  or 
benches  for  their  convenience  in  counting  and  as- 
sorting their  coins.  The  table  so  used  was  called 
banche,  and  the  traders  themselves,  bankers  or 
benchers.  In  times  still  more  ancient,  their  benches 
was  called  cambii,  and  they  themselves  were  called 
cambiators.    Du  Cange,  Cambii. 

The  issue  of  paper  in  the  similitude  of 
bank  notes  and  intended  to  circulate  is  an 


BANK 


319 


BANK  NOTE 


act  of  banking;  People  v.  R.  Co.,  12  Mich. 
389,  86  Am.  Dec.  64;  so  is  keeping  an  office 
to  discount  notes;  People  v.  Bartow,  6  Cow. 
(N.  Y.)  290;  but  not  if  the  party  only  lends 
his  own  money ;  People  v.  Brewster,  4  Wend. 
(N.  Y.)  498;  nor  is  merely  receiving  money 
on  deposit;  State  v.  Ins.  Co.,  14  Ohio  6; 
contra,  Com.  v.  Sponsler,  16  Co.  Ct  (Pa.) 
116. 

A  corporation  loaning  its  own  money  on 
mortgages  is  not  a  banking  corporation;  Ore- 
gon &  W.  Trust  Inv.  Co.  v.  Rathburn,  5  Sawy. 
32,  Fed.  Cas.  No.  10,555;  nor  a  firm  which 
does  not  lend  money  (except  on  landed  se- 
curity), discount  paper  or  buy  or  sell 
drafts;  Scott  v.  Burnham,  56  111.  App.  30. 
An  unincorporated  bank  owned  by  a  private 
individual  is  not  a  legal  entity,  though  it  is 
conducted  by  a  so-called  president  and  cash- 
ier ;  Longfellow  v.  Barnard,  59  Neb.  455,  81 
N.  W.  307;  to  the  same  effect,  In  re  Purl's 
Estate,  147  Mo.  App.  105,  125  S.  W.  849. 

See  National  Banks;  Bank  Note;  Dis- 
count ;  Guarantee  Fund  ;  Check  ;  Cashier  ; 
Director  ;  Deposit  ;  Officer  ;  Savings  Bank. 

BANK  ACCOUNT.  A  fund  which  mer- 
chants, traders,  and  others  have  deposited 
into  the  common  cash  of  some  bank,  to  be 
drawn  out  by  checks  from  time  to  time  as 
the  owner  or  depositor  may  require. 

BANK  CHARGES.  This  term  in  an  action 
on  a  bill  of  exchange  is  equivalent  to  ex- 
penses of  noting  and  may  be  especially  en- 
dorsed as  a  liquidated  demand ;  [1893]  1  Q. 
B.  31S. 

BANK  CREDIT.  A  credit  with  a  bank  by 
which,  on  proper  security  given  to  the  bank, 
a  person  receives  liberty  to  draw  to  a  cer- 
tain extent  agreed  upon.  In  Scotland  also 
called  a  cash  account.  Such  credits  were 
long  a  distinctive  feature  of  Scotch  banking. 
Cent.  Diet. 

BANK  NOTE.  A  promissory  note,  payable 
on  demand  to  the  bearer,  made  and  issued 
by  a  person  or  persons  acting  as  bankers  and 
authorized  by  law  to  issue  such  notes.  The 
definition  is  confined  to  notes  issued  by  in- 
corporated banks  in  2  Dan.  Neg.  Inst.  §  16G4. 
See  2  Pars.  Bills  &  N.  88.  Bank  bills  and 
bank  notes  are  equivalent  terms,  even  in 
criminal  cases ;  Eastman  v.  Com.,  4  Gray 
(Mass.)  416.  The  power  thus  to  issue  is 
not  inherent  or  essential  in  banking  business, 
and  is  not  necessarily  implied  from  the  con- 
ference of  a  general  power  to  do  banking 
business.  It  must  be  distinctly,  and  In  terms 
conferred  in  the  incorporating  act,  or  it  will 
not  be  enjoyed.  Morse,  Banking,  c.  viii.;  11 
Op.  Att-Gen.  334. 

The  notes  of  national  banks  have  supplant- 
ed those  of  state  banks  at  the  present  time. 

For  many  purposes  they  are  not  looked 
upon  as  common  promissory  notes,  and  as 
mere  evidences  of  debt.  In  the  ordinary 
transactions  of  business  they  are  recognized 


by  general  consent  as  cash.  The  business  of 
issuing  them  being  regulated  by  law,  a  cer- 
tain credit  attaches  to  them,  that  renders 
them  a  convenient  substitute  for  money ; 
Smith  v.  Strong,  2  Hill  (N.  Y.)  241. 
may  be  reissued  after  payment ;  Chalm.  Bills 
of  Exch.  267. 

The  practice  is,  therefore,  to  use  them  as 
money ;  and  they  are  a  good  tender,  unless 
objected  to;  Snow  v.  Perry,  9  Pick.  (Mass.) 
542;  Jefferson  County  Bank  v.  Chapman,  19 
Johns.  (N.  Y.)  322;  Felter  v.  Weybright,  8 
Ohio  169;  Hoyt  v.  Byrnes,  11  Me.  475;  Ball 
v.  Stanley,  5  Yerg.  (Tenn.)  199,  26  Am.  Dec. 
263;  Seawell  v.  Henry,  6  Ala.  226;  5  Dowl. 
&  R.  289.  They  pass  under  the  word  "mon- 
ey" in  a  will,  and,  generally  speaking,  they 
are  treated  as  cash ;  Mechanics'  &  Farmers' 
Bank  v.  Smith,  19  Johns.  (N.  Y.)  115;  but 
see  Armsworth  v.  Scotten,  29  Ind.  495,  as  to 
their  receipt  by  a  sheriff  in  payment  of  an 
execution.  When  payment  is  made  in  bank 
notes,  they  are  treated  as  cash  and  receipts 
are  given  as  for  cash;  Morris  v.  Edwards.  1 
Ohio  1S9;  Edwards  v.  Morris,  1  Ohio  524; 
Morrill  v.  Brown,  15  Pick.  (Mass.)  177; 
Bradley  v.  Hunt,  5  G.  &  J.  (Md.)  54,  23  Am. 
Dec.  597;  Governor  v.  Carter,  10  N.  C.  328, 
14  Am.  Dec.  5SS;  Scott  v.  Com.,  5  J.  J.  Marsh. 
(Ky.)  643;  1  Sch.  &  L.  318,  319;  Tancil  v. 
Seaton,  28  Gratt.  (Va.)  605,  26  Am.  Rep.  380; 
1  Burr.  452.  It  has  been  held  that  the  pay- 
ment of  a  debt  in  bank  notes  discharges  the 
debt;  Bayard  v.  Shunk,  1  W.  &  S.  (Pa.)  92, 
37  Am.  Dec.  441 ;  Pearson  v.  Gayle,  11  Ala. 
280;  2  Dan.  Neg.  Inst.  §  1676;  Edmunds  v. 
Digges,  1  Gratt.  (Va.)  359,  42  Am.  Dec.  561; 
but  not  when  the  payer  knew  the  bank  was 
insolvent.  The  weight  of  authority  is 
against  the  doctrine  of  the  extinguishment  of 
a  debt  by  the  delivery  of  bank  notes  which 
are  not  paid,  when  duly  presented,  in  reason- 
able time.  But  it  is  undoubtedly  the  duty  of 
the  person  receiving  them  to  present  them 
for  payment  as  soon  as  possible ;  Gilman  v. 
Peck,  11  Vt.  516,  34  Am.  Dec.  702;  Fogg  v. 
Sawyer,  9  N.  H.  365 ;  President,  etc.,  of 
Bank  of  U.  S.  v.  Bank,  10  Wheat.  (U.  S.) 
333,  6  D.  Ed.  334;  Young  v.  Adams,  6  Mass. 
182;  Houghton  v.  Adams,  18  Barb.  (N.  Y.) 
545;  Westfall.  Stewart  &  Co.  v.  Braley,  10 
Ohio  St.  188,  75  Am.  Dec.  509;  Frontier 
Bank  v.  Morse,  22  Me.  88,  38  Am.  Dec.  284; 
Townsends  v.  Bank,  7  Wis.  185;  6  B.  &  C. 
373. 

Bank  notes  are  governed  by  the  rules  ap- 
plicable to  other  negotiable  paper.  They 
are  assignable  by  delivery;  Rep.  t.  Hard. 
53;  President,  etc.,  of  Michigan  State  Bank 
v.  Hastings.  1  Dougl.  (Mich.)  236,  41  Am. 
Dec.  549.  The  holder  of  a  note  is  entitled  to 
payment,  and  cannot  be  affected  by  the  fraud 
of  a  former  holder,  unless  he  is  proved  privy 
to  the  fraud;  1  Burr.  452;  Sylvester  v.  Gi- 
rard,  4  Rawle  (Pa.)  1S5;  Worcester  County 
Bank  v.  Bank,  10  Cush.  (Mass.)  48S,  57  Am. 
Dec.   120;    2  Dan.  Neg.   Instr.  §  16S0;    Olm- 


BANK  NOTE 


320 


BANKRUPT 


stead  v.  Bank,  32  Conn.  278,  85  Am.  Dec.  260. 
The  bona  fide  holder  who  has  received  them 
for  value  is  protected  in  their  possession 
even  against  a  real  owner  from  whom  they 
have  been  stolen.  Payment  in  forged  bank 
notes  is  a  nullity;  Pindall's  Ex'rs  v.  Bank, 
7  Leigh  (Va.)  G17;  Hargrave  v.  Dusenberry, 
9  X.  C.  320;  Ramsdale  v.  Horton,  3  Pa.  330; 
Eagle  Bank  of  New  Haven  v.  Smith,  5  Conn. 
71.  L3  Am.  Dec.  37;  but  the  taker  of  such 
must  give  prompt  notice  that  they  are  coun- 
terfeit, and  offer  to  return  them;  Simms  v. 
Clark,  11  111.  137.  But  where  the  bank  itself 
os  notes  purporting  to  be  its  own,  and 
ire  forged,  it  is  otherwise;  President, 
etc.,  of  Rank  of  U.  S.  v.  Bank,  10  Wheat.  (TJ. 
S.)  333.  G  L.  Ed.  334.  See  6  B.  &  C.  373. 
If  a  note  be  cut  in  two  for  transmission  by 
mail,  and  one  half  be  lost,  the  bona  fide  hold- 
er of  the  other  half  can  recover  the  whole 
amount  of  the  note;  Hinsdale  v.  Bank,  6 
Wend.  (N.  Y.)  37S;  Bank  of  Virginia  v. 
Ward,  6  Munf.  (Va.)  166;  Farmers'  Bank  of 
A'irginia  v.  Reynolds,  4  Rand.  (Va.)  186; 
Dan.  Neg.  Inst.  §  1696. 

At  common  law,  as  choses  in  action,  bank 
notes  could  not  be  taken  in  execution ;  9  Cro. 
Eliz.  746.  The  statute  laws  of  the  several 
states,  or  custom,  have  modified  the  common 
law  in  this  respect,  and  in  many  of  them 
they  can  be  taken  on  execution ;  Spencer  v. 
Blaisdell,  4  N.  H.  198,  17  Am.  Dec.  412 ;  Mor- 
rill v.  Brown,  15  Pick.  (Mass.)  173;  Lovejoy 
v.  Lee,  35  Vt.  430. 

BANK  STOCK.  The  capital  of  a  bank.  In 
England  the  sum  is  applied  chiefly  to  the 
stock  of  the  Bank  of  England. 

BANKABLE.  Bank  notes,  checks,  and  oth- 
er securities  for  money  received  as  cash  by 
banks  in  the  place  where  the  word  is  used. 

In  the  United  States,  the  notes  issued  by  the 
national  banks  have  taken  the  place  of  those  for- 
merly issued  by  banks  incorporated  under  state 
laws.  The  circulation  of  these  notes  being  secured 
by  United  States  bonds  deposited  with  the  treas- 
urer of  the  United  States,  they  are  received  as 
bankable  money  without  regard  to  the  locality  of 
the  bank  issuing  them.  See  U.  S.  Rev.  Stat.  § 
5133;  Veazie  Bank  v.  Fenno,  8  Wall.  (U.  S.)  533,  19 
L.   Ed.   482. 

BANKER'S  NOTE.  A  promissory  note 
given  by  a  private  banker  or  banking  insti- 
tution, not  incorporate,  but  resembling  a 
bank  note  in  all  other  respects.  6  Mod.  29 ; 
3  Chit.  Comm.  Law  590. 

BANKRUPT.  Originally  and  strictly,  a 
trader  who  secretes  himself  or  does  certain 
other  acts  tending  to  defraud  his  creditors. 
2  Bla.  Com.  471. 

A  broken-up  or  ruined  trader.  Everett  v. 
Stone,  3  St.  453,  Fed.  Cas.  No.  4,577. 

By  modern  usage,  an  insolvent  person. 

A  person  who  has  done  or  suffered  to  be 
done  some  act  which  is  by  law  declared  to 
be  an  act  of  bankruptcy. 

The  word  is  from  the  Italian  banca  rota, 
the  custom  being  in  the  middle  ages  to  break 
the  benches  or  counters  of  merchants  who 


failed  to  pay  their  debts.  Voltaire,  Diet. 
Phil.  voc.  sig.  Banqueroute;  Saint  Bennet 
Diet.  Faillete. 

In  the  English  law  there  were  two  char- 
acteristics which  distinguished  bankrupts 
from  insolvents :  the  former  must  have  been 
a  trader  and  the  object  of  the  proceedings 
against,  not  by,  him.  Originally  the  bank- 
rupt was  considered  a  criminal;  2  Bla. 
Com.  471 ;  and  the  proceedings  were  only 
against  fraudulent  traders ;  but  this  distinc- 
tion has  been  abolished  by  the  later  English 
bankruptcy  acts,  although  in  some  respecttj 
traders  and  non-traders  continued  to  be  put 
on  a  different  footing;  Mozl.  &  W.  Law  Diet. 
As  used  in  American  law,  the  distinction 
between  a  bankrupt  and  an  insolvent  is  not 
generally  regarded.  Act  of  Congress  of 
March  2,  1867,  and  Act  of  June  22,  1874 
(both  now  repealed).  On  the  continent  of 
Europe  the  distinction  between  bankrupt  and 
insolvent  still  exists;  Holtz.  Encyc.  voc.  sig. 
Bankerott.  Under  the  constitution  of  the 
United  States  the  Federal  government  has 
power  to  pass  a  uniform  bankrupt  law.  The 
meaning  of  bankrupt  as  used  in  the  consti- 
tution was  not  the  technical  early  English 
one,  but  was  commensurate  with  insolvent; 
Kunzler  v.  Kohaus,  5  Hill  (N.  Y.)  317.  In 
the  first  bankrupt  law  of  Apr.  4,  1800,  re- 
pealed Dec.  19,  1803,  the  word  bankrupt  was 
used  in  the  old  English  sense.  The  distinc- 
tion, however,  became  less  observed;  Mar- 
shall, C.  J.,  in  Sturges  v.  Crowninshield,  4 
Wheat.  (U.  S.)  122,  4  L.  Ed.  529;  2  Kent 
390;  and  was  finally  abandoned  and  broken 
down  by  the  act  of  Aug.  19,  1841,  which  was 
a  union  of  both  species  of  laws,  including  "all 
persons  whatsoever."  The  constitutionality 
of  the  voluntary  part  of  the  act  was  much 
contested,  but  was  fully  sustained;  Kunzler 
v.  Kohaus,  5  Hill  (N.  Y.)  317;  McCormick 
v.  Pickering,  4  N.  Y.  283.  (For  the  reasons 
assigned  contra,  see  Sackett  v.  Andross,  5 
Hill  [N.  Y.]  327.) 

The  only  substantial  difference  between 
a  strictly  bankrupt  law  and  an  insolvent  law 
lies  in  the  circumstance  that  the  former 
affords  relief  upon  the  application  of  the 
creditor,  and  the  latter  upon  the  application 
of  the  debtor.  In  the  general  character  of 
the  remedy  there  is  no  difference,  however 
much  the  modes  by  which  the  remedy  may 
be  administered  may  vary.  But  even  in 
the  respect  named  there  is  no  difference  in 
this  instance.  The  act  of  congress  (1867) 
was  both  a  bankrupt  act  and  an  insolvent 
act  by  definition,  for  it  afforded  relief  upon 
the  application  of  either  the  debtor  or  the 
creditor,  under  the  heads  of  voluntary  and 
involuntary  bankruptcy;  Martin  v.  Berry,  37 
Cal.  222. 

A  state  has  authority  to  pass  a  bankrupt 
law,  provided  such  law  does  not  impair  the 
obligation  of  contracts,  and  provided  there 
be  no  act  of  congress  in  force  to  establish  a 
uniform    system    of    bankruptcy,    conflicting 


BANKRUPT 


321 


BANKRUPT  LAWS 


with  such  law;  McMillan  v.  McNeill,  4 
Wheat.  (U.  S.)  209,  4  L.  Ed.  552;  Odgen  v. 
Saunders,  12  Wheat.  (U.  S.)  213,  6  L.  Ed. 
606. 

A  state  bankrupt  law  so  far  as  it  attempts 
to  discharge  the  contract  is  unconstitutional ; 
McMillan  v.  McNeill,  4  Wheat.    (U.  S.)   209, 

4  L.  Ed.  552;  Sturges  v.  Crowninshield,  4 
Wheat.  (U.  S.)  122,  4  L.  Ed.  529;  Farmers' 
&  M.  Bank  v.  Smith,  6  Wheat.   (U.  S.)   131, 

5  L.  Ed.  224 ;  whether  passed  before  or  after 
the  debt  was  created;  McMillan  v.  McNeill, 
4  Wheat.  (U.  S.)  209,  4  L.  Ed.  552;  or  where 
the  suit  was  in  a  state  of  which  both  parties 
were  citizens,  and  in  which  they  resided 
until  suit,  and  where  the  contract  was  made ; 
Fanners*  &  M.  Bank  v.  Smith,  0  Wheat.  (U. 
S.)  131,  5  L.  Ed.  224;  but  a  bankrupt  or 
insolvent  law  of  a  state  which  discharges 
the  person  of  the  debtor  and  his  further 
acquisitions  of  property  is  valid,  though  a 
discharge  under  it  cannot  be  pleaded  in  bar 
of  an  action  by  a  citizen  of  another  state 
in  the  courts  of  the  United  States  or  of  any 
other  state;  Odgen  v.  Saunders,  12  Wheat. 
(U.  S.)  213,  6  L.  Ed.  606.  Every  state  law  is 
a  bankrupt  law  in  substance  and  fact,  that 
causes  to  be  distributed  by  a  tribunal  the 
property  of  a  debtor  among  his  creditors; 
and  it  is  especially  such  if  it  causes  the 
debtor  to  be  discharged  from  his  contracts, 
so  far  as  it  can  do  so;  Nelson  v.  Carland,  1 
How.  (U.  S.)  265,  and  note,  11  L.  Ed.  126. 
When  the  United  States  statute  is  also  an 
insolvent  law  acting  upon  the  same  persons 
and  cases  as  the  state  insolvent  law,  the 
latter  is  suspended  when  the  United  States 
statute  goes  into  operation ;  Nelson  v.  Car- 
land,  1  How.  (U.  S.)  265,  11  L.  Ed.  126;  Ex 
parte  Eames.  2  Sto.  326,  Fed.  Cas.  No.  4,237, 
but  the  state  law  may  be  still  in  force  as  to 
a  class  of  insolvents  not  included  in  the  Fed- 
eral act;  Herron  Co.  v.  Superior  Court,  1P.G 
Cal.  279,  68  Pac.  814,  89  Am.  St.  Rep.  124. 
If  the  state  court  has  acquired  jurisdiction 
under  a  state  statute,  and  is  actually '  set- 
tlihg  the  debts  and  distributing  the  assets  of 
the  insolvent  before  or  at  the  date  at  which 
the  Federal  law  takes  effect,  it  may  proceed 
to  a  final  conclusion  of  the  .case;  Judd  v. 
Ives,  4  Mete.  (Mass.)  401;  Martin  v.  Berry. 
37  Cal.  208.  A  voluntary  assignment  made 
by  the  debtor  within  four  months  of  being 
adjudged  a  bankrupt  is  void  although  it  was 
made  in  conformity  to  the  laws  of  his  state; 
In  re  Gutwillig,  90  Fed.  475.  See  Insol- 
vency. 

BANKRUPT   LAWS. 

Bankruptcy  laws,  as  now  understood,  were  not 
known  to  the  common  law.  Certain  acts  in  Eng- 
land, beginning  with  the  statute  34  &  35  Henry  VIII. 
c.  4,  were  first  mainly  directed  against  the  crim- 
inal frauds  of  traders.  The  bankrupt  was  treated  as 
a  criminal  offender ;  and,  formerly,  the  not  duly 
surrendering  his  property  under  a  commission  of 
bankruptcy,  when  summoned,  was  a  capital  felony. 
The  bankrupt  laws  are  now,  and  have  for  some  time 
past  been,  regarded  as  a  connected  system  of  civil 
legislation,  having  the  double  object  of  enforcing  a 

Bouv.— 21 


complete  discovery  and  equitable  distribution  of  the 
property  of   an   insolvent  trader,   and  of  conferring 
on   the  trader  the  reciprocal  ad-vantage  of  security 
of   person   and   a  discharge  from  all   claims   of   L. 
creditors. 

By  the  Act  6  Geo.  IV.  c.  16,  the  former  statutes 
were  consolidated  and  many  important  alterations 
introduced.  All  business  under  the  earlier  statutes 
was  entrusted  to  commissioners  appointed  by  the 
Lord  Chancellor  for  each  case.  A  subsequent  stat- 
ute, 1  &  2  Will.  IV.  c.  56,  changed  the  mode  of  pro- 
ceeding by  constituting  a  Court  of  Bankruptcy,  and 
removing  the  Jurisdiction  of  bankrupt  cases  in  the 
first  instance  from  the  Court  of  Chancery  to  that 
of  Bankruptcy,  reserving  only  an  appeal  from  that 
court  to  the  lord  chancellor  as  to  matters  of  law  and 
equity  and  questions  of  evidence;  and  other  im- 
portant alterations  were  introduced.  This  was 
followed  by  the  5  &  6  Will.  IV.  c.  29.  In  1869,  bank- 
ruptcies in  the  counties  were  transferred  to  the 
county  courts  and  in  London  to  the  London  Court 
of  Bankruptcy.  Its  jurisdiction  was  transferred  in 
1883  to  the  King's  Bench  Division  of  the  High  Court 
of  Justice.  The  bankrupt  laws  were  codified  in 
1883   and   in  1890. 

Bankrupt  laws  were  passed  in  the  United 
States  in  1S00,  1841,  and  1S67,  but  they  were 
repealed  after  a  brief  existence. 

The  act  of  1867  was  repealed  by  act  of 
June  7,  1878  (taking  effect  September  1, 
187S)   but  not  to  affect  pending  cases. 

A  bankruptcy  act  was  passed  July  1,  1898. 
It  extends  not  only  to  corporations  ordinarily 
speaking,  hut  to  limited  or  other  partnership 
associations  whose  capital  alone  is  respon- 
sible for  the  debts  of  the  association. 

The  act  is  not  unconstitutional,  though  it 
provides  that  others  than  traders  may  he  ad- 
judged bankrupts  on  voluntary  petition, 
though  it  allows  the  exemptions  of  the  local 
laws,  and  though  it  provides  that  the  dis- 
charge of  the  debtor  under  proceedings  at  his 
domicil  shall  be  valid  throughout  the  United 
States;  Hanover  Nat.  Bank  v.  M 
U.  S.  1S1,  22  Sup.  Ct  857,  46  L.  Ed.  1113. 

A  person  shall  be  deemed  insolvent  with- 
in the  act  "whenever  the  aggregate  of  his 
property,  exclusive  of  any  property  which 
he  may  have  conveyed,  transferred,  conceal- 
ed, or  removed,  or  permitted  to  be  con 
or  removed,  with  intent  to  defraud,  hinder, 
or  delay  his  creditors,  shall  not,  at  a  fair 
valuation,  he  sufficient  in  amount  to  pay  his 
debts."  Wage-earner  shall  include  any  per- 
son who  works  for  wages,  salary,  or  hire, 
at  a  rate  of  compensation  not  exceeding  one 
thousand  five  hundred  dollars  per  year. 

The  courts  of  bankruptcy  are  the  district 
courts  of  the  United  States  and  of  the  ter- 
ritories, the  supreme  court  of  the  District 
of  Columbia,  and  the  United  States  courts 
of  the  Indian  Territory  and  of  Alaska.  They 
are  invested  with  such  jurisdiction  in  law 
and  at  equity  as  will  enable  them  to  exercise 
original  jurisdiction  in  bankruptcy  proceed- 
ings, in  vacation  in  chambers  and  during 
their  respective  terms;  to  adjudge  persons 
bankrupt  who  have  had  their  principal  place 
of  business,  resided,  or  had  their  domicil  for 
the  preceding  six  months,  or  the  greater 
portion  thereof,  within  their  respective  ter- 
ritorial  jurisdictions,   or   who   do   not   have 


BANKKUPT  LAWS 


BANKRUPT  LAWS 


their  principal  place  of  business,  reside,  or 
have  their  domicil  within  the  United  Slates, 
but  have  property  within  the  jurisdiction  of 
the  court  or  have  been  adjudged  bankrupts 
by  competent  courts  of  jurisdiction  without 
the  United  States,  and  have  property  within 
their  jurisdictions. 

Acts  of  bankruptcy  by  a  person  shall  con- 
sist of  his  having  (1)  conveyed,  transferred, 
concealed,  or  removed,  or  permitted  to  be 
concealed  or  removed,  any  part  of  his  prop- 
erty with  intent  to  hinder,  delay,  or  defraud 
his  creditors,  or  any  of  them:  or  (2)  trans- 
ferred, while  insolvent,  any  portion  of  his 
property  to  one  or  more  of  his  creditors  with 
intent  to  prefer  such  creditors  over  his  other 
creditors:  or  (3)  suffered  or  permitted, 
while  Insolvent,  any  creditor  to  obtain  a  pref- 
erence through  legal  proceedings,  and  not 
having  at  leasl  five  days  before  a  sale  or 
final  disposition  of  any  property  affected  by 
such  preference,  vacated  or  discharged  such 
preference;  or  (4)  made  a  general  assign- 
ment for  the  benefit  of  his  creditors;  or  (5) 
admitted  in  writing  his  inability  to  pay  his 
debts  and  his  willingness  to  be  adjudged  a 
bankrupt  on  that  ground.     See  Preference. 

A  petition  may  be  filed  against  a  person 
who  is  insolvent,  and  who  has  committed 
an  act  of  bankruptcy  within  four  months. 
Such  time  shall  not  expire  until  four  months 
after  (1)  the  date  of  the  recording  of  the 
transfer,  when  the  act  consists  in  having 
made  a  transfer  of  any  of  his  property  with 
intent  to  hinder,  delay,  or  defraud  his  cred- 
itors, or  for  the  purpose  of  giving  a  prefer- 
ence as  in  the  act  provided,  or  a  general  as- 
signment for  the  benefit  of  his  creditors,  if 
by  law  such  recording  is  required  or  permit- 
ted;  (2)  or,  if  it  is  not,  from  the  date  when 
the  beneficiary  takes  notorious,  exclusive,  or 
continuous  possession  of  the  property,  unless 
the  petitioning  creditor  have  received  actual 
notice  of  such  transfer  or  assignment. 

It  would  be  a  defence  to  prove  that  the 
party  was  not  insolvent  as  defined  in  the 
act  at  the  time  the  petition  was  filed  against 
him,  and  upon  such  proof  the  proceedings 
shall  be  dismissed.  The  burden  of  proof  is 
on  the  alleged  bankrupt.  He  must  appear  in 
court  with  books  and  accounts,  and  submit 
to  an  examination  in  respect  to  his  insol- 
vency. 

The  petitioner  in  involuntary  proceedings 
is  required  to  give  bond  with  two  good  and 
sufficient  sureties  who  shall  reside  in  the 
jurisdiction  to  be  approved  by  the  court,  in 
such  sums  as  the  court  shall  direct,  condi- 
tioned on  the  payment  of  damages  and  costs 
in  case  the  petition  is  dismissed.  If  the  pe- 
tition is  dismissed  the  respondent  is  allowed 
all  costs,  counsel  fees,  expenses,  and  dam- 
ages, to  be  fixed  by  the  court  and  covered  by 
the  bond. 

"Any  person  who  owes  debts,  except  a  cor- 
poration, shall  be  entitled  to  the  benefits  of 
this  act  as  a  voluntary  bankrupt" 


"Any  natural  person,  except  a  wage-earner 
or  a  person  engaged  chiefly  in  farming  or 
the  tillage  of  the  soil,  any  unincorporated 
company  and  any  corporation  engaged  prin- 
cipally in  manufacturing,  trading,  printing, 
publishing,  or  mercantile  pursuits,  owing 
del  its  to  the  amount  of  one  thousand  dollars 
or  over,  may  be  adjudged  an  involuntary 
bankrupt  upon  default  or  an  impartial  trial, 
and  shall  be  subject  to  the  provisions  and 
entitled  to  the  benefits  of  this  act.  Private 
bankers,  but  not  national  banks  or  banks 
incorporated  under  state  or  territorial  laws, 
may  be  adjudged  involuntary  bankrupts." 
Mining  corporations  were  added  by  the  act 
of  Feb.  5,  1903. 

A  partnership  during  its  continuance  or 
after  its  dissolution  and  before  its  final  set- 
tlement may  be  adjudged  a  bankrupt.  The 
court  which  has  jurisdiction  of  one  of  the 
partners  may  have  jurisdiction  of  all  the 
partnership  assets,  but  separate  accounts  of 
the  partnership  and  individual  property 
should  he  kept  and  expenses  divided  between 
them  as  the  court  shall  determine.  The  net 
proceeds  of  partnership  property  goes  to 
partnership  debts,  and  those  of  the  individ- 
ual estates  to  individual  debts.  Any  surplus 
in  either  case  to  the  other  class  of  debts. 
Proof  of  claims  of  partnership  debts  may  be 
allowed  against  individual  estates  and  vice 
versa,  and  the  court  may  marshal  the  assets 
of  both  estates  so  as  to  prevent  preferences 
and  secure  an  equitable  distribution. 

If  one  or  more  but  not  all  of  the  partners 
are  adjudged  bankrupt  the  partnership  prop- 
erty shall  not  be  administered  in  bankruptcy 
unless  by  consent  of  the  partners  not  ad- 
judged bankrupts.  The  latter  shall  settle 
the  partnership  business  as  expeditiously  as 
possible  and  account  for  the  interest  of  the 
bankrupt  partners.  Any  exemptions  in  force 
when  the  petition  was  filed  in  the  state 
where  the  bankrupt  had  his  domicil  for  six 
months  or  the  greater  portion  thereof  imme- 
diately preceding  the  filing  of  the  petition 
are  preserved. 

Provision  is  made  for  a  composition  with 
creditors,  but  not  until  the  bankrupt  has 
been  examined  in  open  court  or  at  a  meet- 
ing of  creditors  and  has  filed  his  schedule 
of  assets  and  list  of  creditors.  If  the  ap- 
plication therefor  has  been  accepted  in  writ- 
ing by  a  majority  in  number  and  amount  of 
proved  creditors,  and  the  consideration  there- 
of and  money  to  pay  all  prior  debts  and  costs 
have  been  deposited  subject  to  the  order  of 
the  court,  it  may  be  presented  to  the  court, 
which,  after  notice  and  a  hearing,  may  eon- 
firm  it. 

A  discharge  may  be  applied  for,  but  not 
until  one  month  after,  and  within  the  en- 
suing twelve  months  from  the  adjudication 
of  bankruptcy  (with  a  further  extension,  by 
order  of  court  for  cause,  of  six  months).  No 
discharge  shall  be  granted  if  the  bankrupt 
has  committed  an  offence  punishable  by  im- 


BANKRUPT  LAWS 


323 


BANKRUPT  LAWS 


prisonment  under  the  act;  or,  with  fraudu- 
lent intent  to  conceal  his  condition,  etc.,  has 
destroyed,  concealed,  or  failed  to  keep  prop- 
er books  of  account. 

A  discharge  releases  all  debts  except  taxes 
due  the  United  States  or  the  state,  county, 
district,  or  municipality  in  which  the  bank- 
rupt resides;  judgments  on  claims  for  fraud 
or  for  obtaining  property  by  false  pretences 
and  wilful  injuries  to  the  person  or  property 
of  another;  and  debts  not  scheduled  (unless 
the  creditor  was  unknown  to  the  bankrupt  or 
the  creditor  had  knowledge  of  the  proceed- 
ings) ;  or  created  by  fraud,  embezzlement, 
etc.,  as  an  officer  or  trustee ;  does  not  release 
a  Judgment  obtained  by  a  husband  against 
the  bankrupt  for  criminal  conversation  with 
his  wife;  Tinker  v.  Colwell,  193  U.  S.  473,  24 
Sup.  Ct.  505,  48  L.  Ed.  754;  nor  a  contract 
made  by  a  divorced  bankrupt  by  which  he 
agreed  to  pay  his  wife  a  sum  annually  for 
her  support  and  that  of  their  child ;  Dun- 
bar v.  Dunbar,  190  U.  S.  340,  23  Sup.  Ct.  757, 
47  L.  Ed.  1084.  A  discharge  in  bankruptcy 
will  be  withheld  if  the  bankrupt  is  shown 
to  have  obtained  property  on  credit  upon 
false  representations  in  writing,  and  any 
creditors  may  avail  themselves  of  this  right ; 
In  re  Harr,  143  Fed.  421. 

The  right  to  a  trial  by  jury  is  given  in 
respect  of  the  fact  of  insolvency  and  of  the 
commission  of  an  act  of  bankruptcy,  upon 
the  application  of  the  alleged  bankrupt.  The 
right  is  absolute  and  cannot  be  withheld  at 
the  court's  discretion;  Elliott  v.  Toeppner, 
187  U.  S.  327,  23  Sup.  Ct.  133,  47  L.  Ed.  200. 

The  district  court  now  has  jurisdiction  of 
all  matters  and  proceedings  in  bankruptcy, 
Jud.  Code,  §  24,  including  controversies  be- 
tween the  trustee  and  any  adverse  claimant 
of  his  property.  Suits  by  the  trustee  must 
be  brought  in  the  court  where  the  bankrupt 
might  have  brought  them,  unless  by  consent 
of  the  proposed  defendant. 

The  circuit  court  of  appeals  (Judicial 
Code,  §  130)  has  appellate  and  supervisory 
jurisdiction  which  is  to  be  exercised  in  the 
manner  provided  in  the  bankruptcy  act  By 
§  25,  appeals  may  be  taken  to  the  circuit 
court  of  appeals:  1.  From  a  judgment  ad- 
judging or  refusing  to  adjudge  the  defend- 
ant a  bankrupt;  2.  From  a  judgment  grant- 
ing or  denying  a  discharge;  3.  From  a  judg- 
ment allowing  or  rejecting  a  debt  or  claim 
of  $500  or  over.  Such  appeal  must  be  taken 
within  ten  days  and  may  be  heard  by  the 
appellate  court  in  term  time  or  in  vacation. 

The  supreme  court  has  appellate  jurisdic- 
tion of  controversies  in  bankruptcy  from 
which  it  has  appellate  jurisdiction  in  other 
cases;  and  it  exercises  a  like  jm-isdictiou 
from  courts  of  bankruptcy  not  within  any 
organized  circuit  of  the  United  States  and 
from  the  supreme  court  of  "the  District  of 
Columbia. 

An  appeal  may  be  taken  to  the  supreme 
court  from  the  final   decision  of  the  circuit 


court    of    appeals    allowing    or    rejecting    a 
claim,  under  such  rules  as  may  be  | 
by  the  supreme  court  in  the  f< 
1.  Where  the  amount  in  controversy  ex 
$2,000  and  the  question  involved  is  one  which 
might  have  been  taken  on  appeal  or  writ  of 
error  from  the  highest  court  of  the  state  to 
the  supreme  court ;  2.  Where  some  justice  of 
the  supreme  court  shall  certify  that  in  his 
opinion  the  determination  of  the  question  in- 
volved is  essential  to  the  uniform  construc- 
tion of  the  bankruptcy  laws. 

Controversies  may  be  certified  to  the  su- 
preme court  from  other  United  States  courts 
and  the  supreme  court  may  exercise  juris- 
diction thereof,  and  may  issue  writs  of  cer- 
tiorari  pursuant  to  the  laws  now  in   force. 

In  the  computation  of  time  the  first  day 
is  excluded  and  the  last  included. 

The  act  provides  for  the  appointment  for 
two  years  of  a  ble  number  of  refer- 

ees, to  whom  all  matters  may  be  referred. 
Referees  in  bankruptcy  exercise  much  of 
the  judicial  authority  of  the  court;  Mueller 
v.  Nugent,  1S4  U.  S.  1,  22  Sup.  Ct.  269,  46 
L.  Ed.  405. 

The  creditors  appoint  one  or  three  trus- 
tees at  their  first  meeting,  failing  which,  the 
court  shall  do  so. 

A  trustee   holds   the   bankrupt's   property 
subject  to  all  the  equities  against  it :  S 
ity  Warehousing  Co.  v.  Hand,  206  U.  S 
27  Sup.  Ct.  720,  51  L.  Ed.  1117.  11  Ann.  Cas. 
789;   he  gets  no  better  title  than  the  bank- 
rupt had;  Hewit  v.  Mach.  Works,  194   r.  s. 

1  Sup.  Ct.  690,  18  I..  Ed.  98  ' 
70  gives  the  trustee  title  to  all  property 
which,  prior  to  the  bankruptcy,  could  have 
been  transferred  or  levied  upon  or  sold  un- 
der judicial  proceedings  against  the  bank- 
rupt. The  filing  of  a  petition  places  all  the 
bankrupt  property  in  the  custody  of  the 
court:  Mueller  v.  Nugent,  184  U.  S.  1,  22 
Sup.  Ct.  269,  46  L.  Ed.  405;  but  it  has  no 
jurisdiction  against  persons  to  whom  the 
bankrupt  made  a  sale  or  conveyance  before 
the  proceedings  in  bankruptcy,  where  it  ap- 
pears that  the  vendee  acted  in  good  faith: 
Wall  v.  Cox,  181  U.  S.  244,  21  Sup.  Ct.  642, 
45  L.  Ed.  845;  but  where  the  bankrupt  made 
a  general  assignment  for  the  benefit  of  cred- 
itors, and  the  assignee  sold  the  property  aft- 
er a  petition  in  bankruptcy  was  tiled,  it  was 
held  that  the  purchaser  had  no  title  superior 
to  that  of  the  trustee,  although  he  bought 
the  property  in  good  faith:  Bryan  v.  Bern- 
heimer,  181  D.  S.  188,  23  Sup.  Ct  557,  45  L. 
Ed.  814.  A  contingent  remainder  does  not 
pass  in  bankruptcy;  in  re  Hoadley,  loi  Fed. 
233.  A  bankrupt  trustee  takes  only  the  sur- 
render value  of  the  insurance  policies  on  the 
bankrupt's  life,  or  if  the  company  has  loan- 
ed on  it.  only  the  excess  of  surrender  value. 
The  bankrupt  is  entitled  to  the  policy  by 
paying  for  it  the  cash  surrender  value  or 
cess  over  loans  made  on  it  at  the  date 
of  tiling  the  petition;  and  if  the  policy  ma- 


BANKRUPT  LAWS 


324 


BANNITUS 


tures  before  the  adjudication  he  or  his  legal 
representative  is  entitled  to  the  proceeds  of 
the  policy  over  and  above  such  amount ;  and 
this  even  though  the  bankrupt  committed 
suicide  prior  to  adjudication  ;  Everett  v.  Jud- 
son,  228  U.  S.  474,  33  Sup.  Ct.  568,'  57  L.  Ed. 

;   Andrews  v.  Partridge,   22S  U.   S.  479, 

33  Sup.  Ct.  570,  57  L.  Ed.  . 

The  first  meeting  of  creditors  shall  be 
held  not  less  than  ten  nor  more  than  thirty 
days  after  the  adjudication.  Subsequent 
meetings  may  be  held  when  all  creditors 
whose  claims  are  allowed  sign  a  written  con- 
sent thereto.  The  court  shall  call  a  meet- 
ing whenever  one-fourth  of  those  who  have 
proved  their  claims  apply  in  writing.  A 
final  meeting  shall  be  held  when  the  estate 
is  ready  to  be  closed. 

Adjudication  in  bankruptcy  terminates  the 
relation  of  landlord  and  tenant,  and  a  claim 
for  rent  accruing  after  such  adjudication 
will  not  be  allowed,  though  the  tenant  ex- 
ecuted promissory  notes  therefor;  In  re 
Hays,  Foster  &  Ward  Co.,  117  Fed.  879.  A 
sworn  proof  of  claim  against  a  bankrupt  is 
prima  facie  evidence  of  its  allegacions; 
Whitney  v.  Dresser,  200  U.  S.  532,  26  Sup. 
Ct.  316,  50  L.  Ed.  584;  and  a  creditor  who 
knowingly  received  a  preference  and  gave 
it  up  only  when  compelled  by  the  trustee 
cannot  thereafter  prove  his  claim ;  In  re 
Owings,  109  Fed.  623.  An  attorney  is  not 
entitled  to  a  preferential  claim  out  of  the  es- 
tate for  professional  services  in  preparing  a 
general  assignment  for  the  bankrupt  within 
the  four  months'  period  ;  Randolph  v.  Scruggs, 
190  U.  S.  533,  23  Sup.  Ct.  710,  47  L.  Ed.  1165 ; 
nor  for  services  in  resisting  an  adjudication 
in  voluntary  bankruptcy;  id.;  but  he  may 
prove  as  an  unsecured  claim  his  services  in 
the  preparation  of  a  deed  of  trust ;  id.  Three 
or  more  creditors  whose  provable  claims  ag- 
gregate, above  any  securities,  $500,  or  if  all 
the  creditors  are  less  than  twelve  in  num- 
ber, then  one  whose  claim  exceeds  such 
amount  may  petition  in  involuntary  bank- 
ruptcy. 

BANKRUPTCY.  The  state  or  condition  of 
a  bankrupt.     See  Insolvency. 

BANLEUCA.  A  certain  space  surround- 
ing towns  or  cities,  distinguished  by  peculiar 
privileges.  Spelman,  Gloss.  It  is  the  same 
as  the  French  uanlieue. 

BANLIEU.     In    Canadian    Law.     See   Ban- 

LEUCA. 

BANNER.  A  small  flag  bearing  a  device 
or  symbol  and  intended  to  be  carried  or 
waved.  L.  R.  2  P.  C.  387.  A  canvas,  parti- 
colored or  bearing  party  words  and  stretch- 
ed across  a  street  is  a  banner;  4  O'M.  &  H. 
179. 

BANNERET.  A  degree  of  honor  next  aft- 
er a  baron's,  when  conferred  by  the  king ; 
otherwise,  it  ranks  after  a  baronet.  1  Bla. 
Com.  403. 


BANNITUS.  One  outlawed  or  banished. 
Calvinus,  Lex. 

BANNS  OF  MATRIMONY.  Public  notice 
or  proclamation  of  a  matrimonial  contract, 
and  the  intended  celebration  of  the  marriage 
of  the  parties  in  pursuance  of  such  contract, 
to  the  end  that  persons  objecting  to  the  same 
may  have  an  opportunity  to  declare  such  ob- 
jections before  the  marriage  is  solemnized. 
Cowell;  1  Bla.  Com.  439;  Pothier,  Du  Mar- 
ia ge  p.  2,  c.  2. 

BAN  NUM.     A  ban. 

BAR.  To  Actions.  A  perpetual  destruc- 
tion of  the  action  of  the  plaintiff. 

It  is  the  exceptio  peremptoria  of  the  ancient 
authors.  Co.  Litt.  303  b;  Steph.  PI.  App.  xxviii. 
It  is  always  a  perpetual  destruction  of  the  particu- 
lar action  to  which  it  is  a  bar,  Doctrina  Plac.  xxiii. 
§  1,  p.  129 ;  and  it  is  set  up  only  by  a  plea  to  the 
action,  or  in  chief.  But  it  does  not  always  operate 
as  a  permanent  obstacle  to  the  plaintiff's  right  of 
action.  He  may  have  good  cause  for  an  action, 
though  not  for  the  action  which  he  has  brought; 
so  that,  although  that  particular  action,  or  any  one 
like  it  in  nature  and  based  on  the  same  allegations, 
is  forever  barred  by  a  well-pleaded  bar,  and  a  deci- 
sion thereon  in  the  defendant's  favor,  yet  where  the 
plaintiff's  difficulty  really  is  that  he  has  miscon- 
ceived his  action,  and  advantage  thereof  be  taken 
under  the  general  issue  (which  is  in  bar),  he  may 
still  bring  his  proper  action  for  the  same  cause; 
Gould,  PI.  c.  v.  §  137;  6  Coke  7,  8.  Nor  is  final 
judgment  on  a  demurrer,  in  such  a  case,  a  bar  to 
the  ..roper  action,  subsequently  brought ;  Gould, 
PI.  c.  ix.  §  46.  And  where  a  plaintiff  in  one  action 
fails  on  demurrer,  from  the  omission  of  an  essential 
allegation  in  his  declaration,  which  allegation  is 
supplied  in  the  second  suit,  the  judgment  in  the 
first  is  no  bar  to  the  second;  for  the  merits  shown 
in  the  second  declaration  were  not  decided  in  the 
first ;    Gould,  PI.  c.  ix.  §  45  ;    c.  v.  §   158. 

Another  instance  of  what  is  called  a  temporary 
bar  is  a  plea  (by  executor,  etc.)  of  plene  adminis- 
travit,  which  is  a  bar  until  it  appears  that  more 
goods  have  come  into  his  hands,  and  then  it  ceases 
to  be  a  bar  to  that  suit,  if  true  before  its  final  de- 
termination, or  to  a  new  suit  of  the  same  nature: 
Doctrina  Plac.  c.  xxiii.  §  1,  p.  130;    4  East  508. 

Where  a  person  is  bound  in  any  action, 
real  or  personal,  by  judgment  on  demurrer, 
confession,  or  verdict,  he  is  barred,  that  is, 
debarred,  as  to  that  or  any  other  action  of 
the  like  nature  or  degree,  from  the  same 
thing  forever.  But  the  effect  of  such  a  bar 
is  different  in  personal  and  real  actions. 

In  personal  actions,  as  in  debt  or  account, 
trover,  replevin,  and  for  torts  generally  (and 
all  personal  actions),  a  recovery  by  the 
plaintiff  is  a  perpetual  bar  to  another  action 
for  the  same  matter.  He  has  had  one  re- 
covery ;  Doctr.  Plac.  c.  lxviii.  §  1,  p.  412.  So 
where  a  defendant  has  judgment  against 
the  plaintiff,  it  is  a  perpetual  bar  to  another 
action  of  like  nature  for  the  same  cause 
{like  nature  being  here  used  to  save  the 
cases  of  misconceived  action  or  an  omitted 
averment,  where,  as  above  stated,  the  bar 
is  not  perpetual).  And  inasmuch  as,  in  per- 
sonal actions,  all  are  of  the  same  degree,  a 
plaintiff  against  whom  judgment  has  passed 
cannot,  for  the  subject  thereof,  have  an  ac- 
tion of  a  higher  nature;  therefore  he  gener- 


BAR 


325 


BAR  ASSOCIATIONS 


ally  has  in  such  actions  no  remedy  (no  man- 
ner of  avoiding  the  bar  of  such  a  judgment) 
except  by  taking  the  proper  steps  to  reverse 
the  very  judgment  itself  (by  writ  of  error, 
or  by  appeal,  as  the  case  may  be),  and  thus 
taking  away  the  bar  by  taking  away  the 
judgment;  6  Coke  7,  S.  (For  occasional  ex- 
ceptions  to  this  rule,  see  authorities  above 
cited.) 

In  real  actions,  if  the  plaintiff  be  barred 
as  above  by  judgment  on  a  verdict,  demur- 
rer, confession,  etc.,  he  may  still  have  an 
action  of  a  higher  nature,  and  try  the  same 
right  again;  Lawes,  Plead.  39;  Stearns,  Real 
Act.  See,  generally,  Bacon,  Abr.  Abatement, 
n. ;  Plea  in  bar;  3  East  -"-±0. 

A  particular  part  of  the  court- room. 

As  thus  applied,  and  secondarily  in  various  ways, 
it  takes  its  name  from  the  actual  bar,  or  enr-Iosins 
rail,  which  originally  divided  the  bench  from  the 
rest  of  the  court-room,  as  well  as  from  that  bar,  or 
rail,  which  then  divided,  and  now  usually  di\ides, 
the  space  including  the  bench  and  the  place  which 
lawyers  occupy  in  attending  on  and  conducting  tri- 
als, from  the  body  of  the  court-room. 

Those  who  are  authorized  to  appear  before 
the  court  and  conduct  the  trial  of  causes. 

Those  who,  as  advocates  or  counsellors,  appeared 
as  speakers  in  court,  were  said  to  be  "called  to  the 
bar,"  that  is,  called  to  appear  in  presence  of  the 
court,  as  barristers,  or  persons  who  stay  or  attend 
at  the  bar  of  court.  Richardson,  Diet.  Barrister. 
By  a  natural  transition,  a  secondary  use  of  the 
word  was  applied  to  the  persons  who  were  so  called, 
and  the  advocates  were,  as  a  class,  called  "the  bar." 
And  in  this  country,  since  attorneys,  as  well  as 
counsellors,  appear  in  court  to  conduct  causes,  the 
members  of  the  legal  profession,  generally,  are 
called  the  bar,  and  in  this  sense  are  employed  the 
terms  "members  of  the  bar"  and  "admission  to  the 
bar." 

The  court,  in  its  strictest  sense,  sitting  in 
full  term. 

Thus,  a  civil  case  of  great  consequence  was  not 
left  to  be  tried  at  nisi  prius,  but  was  tried  at  the 
"bar  of  the  court  itself,"  at  Westminster  ;  3  Bla. 
Com.  352.  So  a  criminal  trial  for  a  capital  offence 
was  had  "at  bar,"  4  id.  351;  it  is  still  used  in  a 
criminal  trial  before  three  judges  in  the  King's 
Bench  Division.  It  is  also  used  in  this  sense,  with 
a  shade  of  difference  (as  not  distinguishing  nisi 
prius  from  full  term,  but  as  applied  to  any  term  of 
the  court),  when  a  person  indicted  for  crime  is 
called  "the  prisoner  at  the  bar,"  or  is  said  to  stand 
at  the  bar  to  plead  to  the  indictment.  See  Merlin, 
Ripert.   Barreau;    1   Dupin,   Prof.   d'Av.   451. 

An  obstacle  or  opposition.  Thus,  relation- 
ship within  the  prohibited  degrees,  or  the 
fact  that  a  person  is  already  married,  is  a 
bar  to  marriage. 

BAR  ASSOCIATIONS.  Associations  of 
members  of  the  bar  have  been  organized  in 
most  of  the  states.  The  first  of  them  was 
in  Mississippi  in  1825,  but  it  is  not  known  to 
have  had  a  continued  existence.  One  was 
formed  in  Boston  for  the  state  of  Massachu- 
setts in  1849,  but  it  does  not  appear  to  have 
had  any  real  life.  An  association  of  Graf- 
ton and  Coos  counties  in  New  Hampshire  had 
an  existence  before  1S00.  and  probably  a 
more  or  less  continuous  life  since  then,  hav- 
ing finally  merged  into  a  state  association. 
A  state  association  was  formed  in  Iowa  in 


1875,  and  existed  for  not  more  than  five 
years.  All  printed  reports  relating  to  these 
lations  are  In  the  collection  of  the  Har- 
vard Law  School.  Similar  a  s  ex- 
ist in  many  of  the  counties  in  vuri 
especially  in  Pennsylvania,  where  they  are 
chiefly  Library  >us.  The  olde 
Bodation  of  the  kind,  certainly  the  oldest 
that  has  had  a  continuous  life,  is  the  Law 
Association  of  Philadelphia,  organized  in 
1802.  The  American  Bar  Association  was 
organized  at  Saratoga,  in  August,  1878,  and 
lias  held  annual  meetings  ever  since.  The 
National  Bar  Association,  based  upon  rep- 
resentation from  state  and  local  associations, 
was  organized  in  May,  1888,  and  held  its 
last  meeting  in  December,  1S91. 

BAR  FEE.  A  fee  taken  by  the  sheriff, 
time  out  of  mind,  for  every  prisoner  who  is 
acquitted.  Bacon,  Abr.  Extortion.  Abolish- 
ed by  stats.  14  Geo.  III.  c.  26;  55  Geo.  III. 
c.  50 ;    8  &  9  Vict.  c.  114. 

BAR    ROOM.     See  Saloon. 

BARBER.  Barbers  were  incorporated 
with  the  surgeons  of  London,  but  not  to 
practice  surgery,  except  the  drawing  of 
teeth ;   32  Hen.  VIII.  c.  42. 

The  business  of  a  barber  involves  the  pub- 
lic health  and  interest  to  such  an  extent  that 
the  requirement  of  a  license  is  a  valid  ex- 
ercise of  legislative  power;  State  v.  Zeno, 
79  Minn.  SO,  81  N.  W.  748,  48  L.  R.  A.  88,  78 
Am.  St.  Rep.  422.  Within  the  meaning  of  a 
civil  rights  act  a  barber  shop  is  not  a  place 
of  public  accommodation;  Faulkner  v.  So- 
lazzi,  79  Conn.  541,  65  Atl.  947,  9  L.  R.  A. 
(N.  S.)  601,  9  Ann.  Cas.  67. 

Shaving  on  Sunday  is  not  a  work  of  neces- 
sity, charity  or  mercy;  4  CI.  &  F.  234.  A 
barber's  work  is  a  worldly  labor  in  the 
course  of  the  ordinary  calling ;  State  v. 
Frederick,  45  Ark.  347,  55  Am.  Rep.  555.  In 
Com.   v.  Waldman,    140  Pa.  89.   21   Atl.  248, 

11  L.  'R.  A.  563,  the  court  refused  to  say  as 
a  matter  of  law  that  the  keeping  open  his 
place  of  business  on  Sunday  by  a  barber  was 
a  matter  of  necessity.  Shaving  an  aged  or 
infirm  person  in  his  own  home  on  Sunday 
is  not,  as  a  matter  of  law.  a  work  of  neces- 
sity:  Stone  v.  Graves.  145  Mass  353,  13  N. 
E.  90G.  A  statute  declaring  that  keeping 
open  a  barber  shop  is  not  deemed  a  work  of 
necessity  or  charity  does  not  exceed  consti- 
tutional bounds,  though  as  to  other  kinds  of 
labor,  that  question  is  left  to  be  determined 
as  one  of  fact;  State  v.  Petit,  71  Minn.  376, 
77  N.  W.  225;  affirmed  in  Petit  v.  Minne- 
sota, 177  U.  S.  164,  20  Sup.  Ct.  666,  44  L. 
Ed.  716. 

Where  a  state  constitution  forbids  the  pas- 
sage of  special  or  local  laws  for  the  punish- 
ment of  crimes,  a  Jaw  making  it  a  misde- 
meanor for  a  barber  to  work  on  Sunday  after 

12  noon  was  held  unconstitutional:  Ex  parte 
Jentzsch,  112  Cal.  468,  44  Pac.  803,  32  L. 
R.  A.  664;    and  see  Eden  v.  People,  161  111. 


BARBER 


326 


BARGAIN  AND  SALE 


296,  43  N.  E.  1108,  32  L.  It.  A.  659,  52  Am. 
St.  Rep.  3G5;  State  v.  Granneman,  132  Mo. 
326,  33  S.  W.  784;  Armstrong  v.  State,  170 
Ind.  18S,  84  N.  E.  3,  15  L.  R.  A.  (N.  S.)  646 ; 
so  where  a  law  prohibited  barbers  from 
opening  their  bath  rooms  on  Sunday,  but  did 
not  prohibit  other  persons  from  doing  so; 
Ragio  v.  State,  86  Tenn.  272,  6  S.  W.  401 ; 
but  see  contra,  State  v.  Bergfeldt,  41  Wash. 
231.  S3  Pac.  177,  6  Ann.  Cas.  979;  People  v. 
Havnor.  1-19  N.  Y.  105,  43  N.  E.  541,  31  L. 
R.  A.  6S9,  52  Am.  St.  Rep.  707,  the  latter 
case  by  a  divided  court,  three  of  seven  judg- 
es dissenting  on  the  ground  that  the  act 
(making  it  a  misdemeanor  for  a  barber  to 
work  on  Sunday,  except  in  the  cities  of  New 
York  and  Saratoga  Springs,  and  there  only 
until  one  o'clock)  was  vicious  class  legisla- 
tion; and  that  the  result  necessarily  leads 
to  the  conclusion  that  the  legislature,  by  per- 
mitting barber  shops  to  remain  open  for  a 
portion  of  Sunday  in  two  cities  necessarily 
proceeded  upon  the  theory  that  the  business 
is  a  work  of  necessity.  Where  a  general 
law  prohibits  all  labor  on  Sunday,  an  act 
prohibiting  barbers  from  working  on  that 
dav  is  not  class  legislation ;  Breyer  v.  State, 
102  Tenn.  103,  50  S.  W.  769. 

BARE.  Naked;  absence  of  a  covering; 
unaccompanied.  A  bare  trustee  is  one 
whose  trust  is  to  convey,  and  the  time  has 
arrived  for  a  conveyance  by  him ;  or  a  trus- 
tee to  whose  office  no  duties  were  originally 
attached,  or  who,  although  such  duties  were 
originally  attached  to  his  office,  would,  on 
the  requisition  of  his  cestuis  (fue  trust,  be 
compellable  in  equity  to  convey  the  estate 
to  them'  or  by  their  direction.  1  Ch.  Div. 
281. 

BAREB0NES  PARLIAMENT.  A  parlia- 
ment summoned  by  Cromwell  in  1653. 

BARGAIN.  It  signifies  a  contract  or 
agreement  between  two  parties,  the  one  to 
sell  goods  or  lands,  and  the  other  to  buy 
them.  Hunt  v.  Adams,  5  Mass.  358,  4  Am. 
Dec.  68. 

BARGAIN  AND  SALE.  A  contract  or  bar- 
gain by  the  owner  of  land,  in  consideration 
of  money  or  its  equivalent  paid,  to  sell  land 
to  another  person,  called  the  bargainee, 
whereupon  a  use  arises  in  favor  of  the  lat- 
ter, to  whom  the  seisin  is  transferred  by 
force  of  the  statute  of  uses.  2  Washb.  R.  P. 
128;    Bisp.  Eq.  419. 

Upon  principles  of  equity,  any  agreement, 
supported  by  a  valuable  consideration,  to 
the  effect  that  an  estate  or  interest  in  land 
should  be  conveyed,  as  it  might  be  specially 
enforced  in  the  court  of  chancery,  was 
held  to  entitle  the  purchaser  to  the  use  or 
beneficial  ownership  according  to  the  terms 
and  intent  of  the  agreement,  without  any 
legal  conveyance ;  and  accordingly  the  ven- 
dor was  held  to  be  or  stand  seised  to  the 
use  of  the  purchaser.     Such  transaction,  as 


creating  a  use  executed  by  the  statute,  be- 
came technically  known  as  a  bargain  and 
sale.  As  a  bargain  and  sale  thus  ,  would 
have  been  effectual  to  convey  a  legal  estate 
under  the  statute  by  mere  force  of  the  agree- 
ment without  any  writing  or  formality,  it 
was  thought  expedient  to  add  some  formal 
conditions  to  the  operation  of  the  statute 
upon  it;  and  it  was  enacted  by  a  statute 
of  the  same  session  of  parliament,  27  Hen. 
VIII.  c.  16,  to  the  effect  that  no  estate  of 
freehold  shall  pass  by  reason  only  of  a  bar- 
gain and  sale,  unless  made  by  writing  in- 
dented, scaled,  and  enrolled  in  manner  and 
place  therein  provided.  This  statute  ap- 
plied only  to  estates  of  freehold,  and  a  use 
for  a  term  of  years  might  still  be  created 
within  the  statute  of  uses  by  mere  bargain 
and  sale  without  deed  or  enrolment.  Leake, 
Land  Laws  108. 

This  is  a  very  common  form  of  conveyance  in  the 
United  States.  In  consequence  of  the  consideration 
paid,  and  the  bargain  made  by  the  vendor,  of  which 
the  conveyance  was  evidence,  a  use  was  raised  at 
once  in  the  bargainee.  To  this  use  the  statute  of 
uses  transferred  and  annexed  the  seisin,  whereby  a 
complete  estate  became  vested  in  the  bargainee;  2 
Washb.  R.  P.  128. 

All  things,  for  the  most  part,  that  may 
be  granted  by  any  deed  may  be  granted  by 
bargain  and  sale,  and  an  estate  may  be  cre- 
ated in  fee,  for  life,  or  for  years;  2  Coke 
54;    Dy.  309. 

There  must  have  been  a  valuable  consid- 
eration;  Springs  v.  Hanks,  27  N.  C.  30; 
Wood  v.  Beach,  7  Vt  522;  Hanrick  v. 
Thompson,  9  Ala.  410;  Cheney's  Lessee  v. 
Watkins,  1  Harr.  &  J.  (Md.)  527,  2  Am.  Dec. 
530;  Okison  v.  Patterson,  1  W.  &  S.  (Pa.) 
395;  Jackson  v.  Sebring,  16  Johns.  (N.  Y.) 
515,  8  Am.  Dec.  357 ;  Cro.  Car.  529  ;  Tied  em. 
R.  P.  §  776;  but  its  adequacy  is  immaterial; 
thus  a  rent  of  one  peppercorn  was  held  suffi- 
cient; 2  Mod.  249;  see  Leake,  Land  Laws 
109;  the  consideration  need  not  be  express- 
ed; Jackson  v.  Fish,  10  Johns.  (N.  Y.)  456. 
See  Washb.  ,R.  P. ;  Hayes  v.  Kershow,  1 
Sandf.  Ch.  (N.  Y.)  259;  Jackson  v.  Leek,  19 
Wend.  (N.  Y.)  339;  Wood  v.  Beach,  7  Vt. 
522;  Eckman  v.  Eckman,  68  Pa.  460;  Traf- 
ton  v.  Hawes,  102  Mass.  533,  3  Am.  Rep. 
494 ;  Perry  v.  Price,  1  Mo.  553 ;  Jackson  v. 
Dillon's  Lessee,  2  Over.  (Tenn.)  261. 

The  proper  and  technical  words  to  denote 
a  bargain  and  sale  are  bargain  and  sell; 
Mitch.  R.  P.  425 ;  but  any  other  words  that 
are  sufficient  to  raise  a  use  upon  a  valuable 
consideration  are  sufficient ;  2  Wood,  Conv. 
15;  as,  for  example,  make  over  and  grant; 
Jackson  v.  Alexander,  3  Johns.  (N.  Y.)  484, 
3  Am.  Dec.  517;  release  and  assign;  Lynch 
v.  Livingston,  8  Barb.  (N.  Y.)  463.  See  2 
Washb.  R.  P.  620 ;    Shepp.  Touchst.  222. 

An  estate  in  futuro  may  be  conveyed  by 
deed  of  bargain  and  sale;  Rogers  v.  Eagle 
Fire  Co.,  9  Wend.  (N.  Y.)  611;  4  H.  &  N. 
277;    Drown  v.  Smith,  52  Me.  141;    Trafton 


BARGAIN  AND  SALE 


327 


BALoX  ET   1 


v.  nawes,  102  Mass.  533,  3  Am.  Rep.  494; 
Fisher  v.  Strickler,  10  Pa.  348,  51  Am.  Dec. 
48S;  Mellichamp  v.  Mellichamp,  28  S.  C. 
125,  5  S.  B.  .;:;;;  contra,  Sowle  v.  Sowle, 
10  Pick.  (Mass.)  376;  Marden  v.  Chase,  32 
Me.  329;  2  Washh.  R.  P.  *417 ;  but  not  at 
common  law ;  note  to  Doe  v.  Tranmar,  2 
Sm.  Lead.  Cas.  473,  where  the  cases  are  dis- 
cussed. 

Consult  Gilbert  on  Lses,  Sugden's  edi- 
tion ;    Tiedem.  R.  P. 

BARGAINEE.  The  grantee  of  an  estate 
in  a  <lred  of  bargain  and  sale.  The  person 
to  whom  property  is  tendered  in  a  bargain. 

BARGAINOR.  The  person  who  makes  a 
bargain  ;  he  who  is  to  deliver  the  property 
and  receive   the  consideration. 

BARGE.     Lighters  or  a   flat   bottom  boat 

for   loading  or   unloading  ships ;     or   a  boat 

used  for  pleasure.  See  The  Mamie,  5  Fed. 
813. 

BAR  MOTE.     See   Bergiioth. 

BARO.    A  man,  whether  slave  or  free. 

Si  quis  homieidium  perpctrn  ni  it  in  6a- 
rone  libro  seu  servo,  if  any  one  shall  have 
perpetrated  a  murder  upon  any  man,  slave 
or  free.  A  freeman  or  freedman ;  a  strong 
man;  a  hired  soldier;  a  vassal;  a  feudal 
client. 

Those  who  held  of  the  king  immediately  were 
called   barons  of  the  king. 

A  man  of  dignity  and  rank ;   a  knight. 

A  magnate  in  the  church. 

A  judge  in  the  exchequer  (baro  scaccarii). 

The  first-born  child. 

A  husband. 

The  word  is  said  by  Spelman  to  have  been 
used  more  frequently  in  its  latter  sense; 
Spelman,  Gloss. 

It  is  quite  easy  to  trace  the  history  of  baro,  from 
meaning  simply  man,  to  its  various  derived  signifi- 
cations. Denoting  a  man,  one  who  possessed  the 
manly  qualities  of  courage  and  strength  would  be 
desirable  as  a  soldier,  or  might  misuse  them  as  a 
robber.  One  who  possessed  them  in  an  eminent 
degree  would  be  the  man;  and  hence  baro,  In  Its 
sense  of  a  title  of  dignity  or  honor,  particularly 
applicable  in  a  warlike  age  to  the  best  soldier.  See, 
generally,  Bacon,  Abr. ;  Comyns,  Dig.;  Spelman, 
Gloss.   Baro. 

BARON.  A  general  title  of  nobility.  1 
Bla.  Com.  39S ;  a  particular  title  of  nobility, 
next  to  that  of  viscount.  The  lowest  title 
in  Great  Britain.  Originally  barons  compre- 
hended all  the  nobility,  being  the  feudatories 
of  provinces.  At  present  barons  may  be  by 
prescription,  because  they  and  their  ances- 
tors have  immemorially  sat  in  the  House  of 
Lords;  by  patent;  or  by  tenure,  holding  the 
title  as  annexed  to  land. 

A  judge  of  the  exchequer.    1  Bla.  Com.  44. 

A  husband.     See  Baron  et  Feme. 

A  freeman. 

It  has  essentially  the  same  meanings  as 
Baro,  which  see. 


BARON  ET  FEME.  Man  and  woman; 
husband   and   wife. 

It  ts  doubtful  if  the  words  had  originally  In  this 
phrase  more  meaning  than  man  and  woman.  The 
vulgar  use  of  man  and  woman  for  husband  and 
wife  suggests  the  change  of  meaning  which  might 
naturally  occur  from  man  and  woman  to  husband 
and  wife.     Spelman,  Gloss.  ;    1  Bla.    Con. 

BARONAGE.     A    term    used    to 
the  entire  nobility  of  England  of  all  ranks. 

BARONES  SCACCARII.  See  Barons  of 
thi:  Exchequer. 

BARONET.  A  British  title  of  hereditary 
rank  next  below  that  of  a  baron;  it  is  the 
only  title  of  hereditary  knighthood.  It  is 
given  by  patent,  not  by  investiture.  The 
order  was  fouuded  in  1611.  They  rank 
above  all  knights  except  those  of  the  Garter. 
The  order  of  Baronets  of  Ireland  was  found- 
ed in  1619  with  the  same  privileges.  The 
order  of  Baronets  of  Scotland  was  founded 
in  1625;  after  the  Union  MToT)  they  became 
Baronets  of  the  United  Kingdom. 
have  been  created  since.  The  usual  a! 
ation  after  the  name  is   Bart.     Cent   Diet 

BARONS  OF   THE   CINQUE    PORTS. 
C-HTQ1  r.  Ports.  — 

BARONS  OF  THE  EXCHEQUER.  The 
Judges  of   the   exchequer.      See    Exchequer. 

BARONY.  The  dignity  of  a  baron;  a  spe- 
cies of  tenure ;  the  territory  or  lands  held 
by  a  baron.  Spelman,  Gloss.  It  is  possible 
that  this  tenure  was  distinct  from  that  of 
knight  service.    2  Holdsw.  Hist.  Eng.  1 

In  Scotland  a  large  freehold  estate  even 
though  the  proprietor  is  uot  a  baron. 

BARRATOR.     One  who  commits  barratry. 

BARRATRY  (Fr.  barat,  baraterie,  robbery, 
deceit,  fraud).  Sometimes  written  Barretry. 
The  offence  of  frequently  exciting  and  siir- 
•ring  up  quarrels  and  suits,  either  at  law  or 
otherwise.  4  Bla.  Com.  134;  Co.  Litt,  3GS. 
See  1  Cowp.  154,  by  Lord  Mansfield. 

An  indictment  for  this  offence  must  charge 
the  offender  with  being  a  common  barrator; 
1  Sid.  2S2;  Train  &  H.  Prec.  55;  and  the 
proof  must  show  at  least  three  instances  of 
offending;  Com.  v.  McCulloch,  15  Mass.  227; 
State  v.  Simpson,  1  Bail.  (S.  C.)  379;  Com.  v. 
Mohn,  52  Pa.  243,  91  Am.  Dec.  1.",:; ;  Lticas  v. 
Pico,  55  Cal.  126;  Yoorhees  v.  Dorr,  51  Barb. 
(N.  Y.)  5S0. 

An  attorney  is  not  liable  to  indictment 
for  maintaining  another  in  a  groundli 
tion;  state  v.  Simpson,  I  Bail.  (S.  C.)  379. 
See  2  Bish.  Cr.  Law  S  63;  2  hi.  g  57;  Lam- 
bert v.  People.  9  Cow.  (N.  Y.)  587;  Com.  v. 
McCulloch,  1")  Mas-.  229;  State  v.  Simpson, 
1  Bail.  (S.  C.)  :'.7;>:    -2  Saund.  308  and  note. 

The  purchase  of  a  single  claim,  with  the 
intention  of  suing  upon  it.  does  not  amount 
to  barratry;  to  constitute  the  offence  there 
must  be  a  practice  of  fomenting  suits;  Chase's 
Bla.  Com.  905.  n.  7 ;  Yoorhees  v.  Dorr,  51 
Barb.  (N.  Y.)  5S0. 


BARRATRY 


328 


BARRISTER, 


In    Maritime    Law    and    Insurance.    An   un- 
lawful or  fraudulent  act,  or  very  gross  and 
culpable  negligence,  of  the  master  or  mari- 
ners of  a  vessel  in  violation  of  their  duty  as 
such,  and  directly  prejudicial  to  the  owner, 
and  without  his  consent ;    Roccus,  h.  t ;    Ab- 
bott, Ship.  167,  n. ;    2  Ld.  Raym.  349;  Ken- 
drick  v.  Delafield,  2  Caines  (N.  Y.)  67;    Suck- 
ley  v.  Delafield,  id.  222;    Mclntire  v.  Bowne, 
1  Johns.  (X.  Y.)  229;    Grim  v.  Ins.  Co.,  13  id. 
451;    Brown  v.  U.  S.,  8  Cra.  (U.  S.)  139,  3  L. 
Ed.  504 ;    Greene  v.  Ins.  Co.,  9  Allen  (Mass.) 
217;    Brown  v.  Ins.  Co.,  5  Day  (Conn.)  1,  5 
Am.  Dec.  123;    Hughes  v.  Ins.  Co.,  3  Wheat 
(TJ.  S.)  1G3,  4  L.  Ed.  357 ;    Crousillat  v.  Ball, 
4  Dall.  (Pa.)  294,  1  L.   Ed.  840,  2  Am.  Dec. 
375 ;    5  B.  &  Aid.  597 ;    Lawton  v.  Ins.  Co.,  2 
Cush.  (Mass.)  511 ;   Patapsco  Ins.  Co.  v.  Coul- 
ter, 3  Pet.  (U.  S.)  230,  7  L.  Ed.  659.     It  is 
said  that  the  term  implies  an  intentional  in- 
jury;   it  does  not  embrace   cases  of   negli- 
gence;   Atkinson  v.  Ins.  Co.,  4  Daly  (N.  Y.) 
1.    A  part  owner  of  a  ship  who  is  its  master 
may  be  guilty  of  barratry  towards  his  co- 
owners;    Hutcbins   v.    Ford,   S2  Me.   363,  19 
Atl.  832 ;  Voisin  v.  Ins.  Co.,  62  Hun  4,  16  N. 
Y.  Supp.  410.    It  extends,  in  addition  to  gross- 
er cases  of  barratry,  to  the  following: — sail- 
ing out  of  a  port  without  paying  port  dues, 
whereby  the  cargo  is  forfeited ;   6  Term  379 ; 
disregarding  an  embargo;    1  Term  127;  or  a 
blockade  ;    6  Taunt  375  ;   and  when  a  master 
was  directed  to  make  purchases,  and  went 
into  an  enemy's  settlement  to  trade  (though 
it  could  be  done  there  to  better  advantage), 
whereby  the  ship  was  seized,  it  was  held  bar- 
ratry;    L.  R.  1  Q.  B.  162;    even  though  he 
thought  thereby  to  benefit  the  owner.     When 
a  master  is  entitled  to  use  his  discretion,  his 
conduct  will  not  constitute  barratry,  unless 
he  goes  against  his  better  judgment ;  1  Stark. 
240.     See  L.   R.  3  C.   P.  476.     The  grossest 
barratries,  as  piratically  or  feloniously  seiz- 
ing or  running  away  with  the  vessel  or  car- 
go, or  voluntarily  delivering  the  vessel  into 
the  hands  of  pirates,  or  mutiny,  are  capital 
offences  by  the  laws  of  the  United  States; 
Act  of  Congress,  April  30,   1790,  1;    Story's 
Laws  U.  -S.  84.    Barratry  is  one  of  the  risks 
usually  insured  against  in  marine  insurance ; 
3  Kent,  Lacy's  ed.  305,  n.  50.    See  Insurable 
Interest. 

BARREL.     A  measure  of  capacity,  equal 
to  thirty-six  gallons. 

BARREN  MONEY.    A  debt  which  bears  no 
interest. 

BARRENNESS.      The    incapacity    to    pro- 
duce a  child. 

This,  when  arising  from  impotence  which  existed 
at  the  time  the  relation  was  entered  into,  is  a  cause 
for  dissolving  a  marriage ;  1  Fodere,  Med.  Leg.  § 
254 ;  where  a  woman,  by  an  operation,  had  been 
rendered  incapable  of  bearing  children,  known  to 
•  the  husband  before  marrying,  it  was  not  ground 
of  divorce;    Jorden  v.  Jorden,  93  111.  App.  633. 

BARRISTER.     In    English    Law.     A    coun- 
sellor admitted  to  plead  at  the  bar.     It  did 


not  become  a  usual  name  until  the  16th  cen- 
tury. As  a  popular  name  it  meant  an  utter 
barrister;    21  L.  Q.  R.  253. 

Inner  barrister.  A  serjeant  or  king's  coun- 
sel who  pleads  within  the  bar. 

Outer  or  Utter  barrister.  One  who  pleads 
without  the  bar.  Because  they  sat  "utter- 
most on  the  forms  of  the  benchers  which 
they  call  the  bar."  29  L.  Q.  R.  25.  They  are 
distinguished  from  benchers,  or  those  who 
have  been  readers,  and  are  allowed  to  plead 
within  the  bar,  as  are  the  king's  counsel.  See 
Utter  Barrister. 

Vacation  barrister.  A  counsellor  newly 
called  to  the  bar,  who  is  to  attend  for  sev- 
eral long  vacations  the  exercises  of  the  house. 

In  the  old  books,  barristers  are  called  apprentices, 
apprentitii  ad  legem,  or  ad  barras  (from  which  the 
term  barrister  was  derived),  being  looked  upon  as 
learners,  and  not  qualified  until  they  obtain  the  de- 
gree of  serjeant.  Edmund  Plowden,  the  author  of 
the  Commentaries,  a  volume  of  reports  in  the 
reigns  of  Edward  VI.,  Mary,  Philip  and  Mary,  and 
Elizabeth,  describes  himself  as  an  apprentice  of  the 
common  law.    See  generally,  Weeks  on  Attys.  §  29. 

Barristers  are  now  either  "utter  barris- 
ters," now  more  frequently  called  "junior 
barristers,"  or  king's  counsel.  The  former  is 
a  person  who  was  formerly  a  student  at  an 
Inn  of  Court  and  who  has  been  "called  to 
the  bar"  by  the  benchers  of  his  Inn  and  at 
his  Inn.  A  recent  writer  insists  that  the 
judges,  by  statute,  alone  have  the  right  to 
call  to  the  bar,  i.  e.  alone  can  give  the 
"right  of  audience";  the  judges  have  consti- 
tuted the  benchers  of  the  Inns  of  Court  their 
deputies  for  that  purpose ;  W.  C.  Bolland,  24 
L.  Q.  R.  397 ;  23  id.  438.  The  Inns  of  Court 
only  call  to  the  bar  of  their  societies  and  not 
to  the  bar  itself;  29  L.  Q.  R.  23.  See  Dis- 
bar. 

A  king's  counsel  is  a  barrister  whom  the 
judges  have  "called  within  the  bar"  at  the 
Royal  Courts  of  Justice;    Odger.'C.  L.  1425. 

See  Inns  of  Court;   Serjeants-at-Law. 

Barristers  have  an  exclusive  right  of  au- 
dience as  advocates  in  the  House  of  Lords, 
Privy  Council,  Supreme  Court  of  Judicature, 
Central  Criminal  Court  and  Assizes;  also 
in  Courts  of  County  and  Borough  Quarter 
Sessions  whenever  a  sufficient  number  reg- 
ularly attend  the  court  They  have  no  ex- 
clusive right  in  County  Courts,  Sheriffs' 
Courts,  Coroners'  Courts,  Ecclesiastical 
Courts  and  Courts  of  Petty  Sessions ;  Odger 
C.  L.  1427.  They  are  obliged  to  accept  any 
brief  (accompanied  by  a  suitable  fee)  except 
under  special  circumstances. 

BARTER.  A  contract  by  which  parties  ex- 
change goods  for  goods. 

It  differs  from  a  sale  in  that  a  barter  is  always  of 
goods  for  goods;  a  sale  is  of  goods  for  money,  or 
for  money  and  goods.  In  a  sale  there  Is  a  fixed 
price;  in  a  barter  there  is  not.  See  Benj.  Sales  1; 
Speigle  v.  Meredith,  4  Biss.  120,  Fed.  Cas.  No.  13,- 
227;  Com.  v.  Davis,  12  Bush  (Ky.)  241;  Cooper  v. 
State,   37   Ark.   418. 

There  must  be  delivery  of  goods  to  com- 
plete the  contract 


BARTER 


329 


BASE  SERVICES 


If  an  insurance  be  made  upon  returns 
from  a  country  where  trade  is  carried  on 
by  barter,  the  valuation  of  the  goods  in  re- 
turn shall  be  made  on  the  cost  of  those  giv- 
en in  barter,  adding  all  charges;  We 
Ins.  42.  See  3B.&  Aid.  616;  3  Campb.  351; 
Cowp.  118 ;  1  Dougl.  24,  n. ;  4  B.  &  P.  151 ; 
Troplong,  De  I'E change. 

BARTON.  In  Old  English  Law.  The  de- 
mesne land  of  a  manor ;  a  farm  distinct 
from  the  mansion. 

Sometimes  it  is  used  for  the  manor  house 
itself ;  and  in  some  places  for  out  houses 
and  fold  yards.  In  the  statute  2  &  3  Edw.  6, 
c.  12,  Barton  lands  and  demesne  lands  are 
used  as  synonymous.     Cowell. 

BAS  CHEVALIERS.  Knights  by  tenure 
of  a  base  military  fee,  as  distinguished  from 
bannerets,  who  were  the  chief  or  superior 
knights.     Kennett,  Paroch.  Ant. ;    Blount. 

BASE  BALL.  It  is  a  game  of  skill  with- 
in the  criminal  offense  of  betting  on  such  a 
game;  Mace  v.  State,  58  Ark.  79,  22  S.  W. 
1108.  Prohibition  of  base  ball  playing  on 
Sunday  does  not  violate  the  right  of  con- 
science in  matters  of  religion  secured  to  the 
individual  by  the  Ohio  Bill  of  Rights;  State 
v.  Powell,  58  Ohio  St.  324,  50  N.  E.  900,  41 
L.  R.  A.  854 ;  nor  does  imposing  a  larger 
penalty  on  persons  who  play  base  ball  on 
Sunday  in  violation  of  a  statute  than  upon 
those  who  are  engaged  in  hunting,  fishing, 
rioting  or  quarrelling,  and  in  acts  of  com- 
mon labor,  violate  the  constitutional  right  of 
citizens  to  equal  privileges  and  immunities ; 
State  v.  Hogreiver,  152  Ind.  652,  53  N.  E.  921, 
45  L.  R.  A.  504. 

Under  a  contract  of  hiring  for  a  definite 
time,  which  is  silent  as  to  the  degree  of  skill 
to  be  possessed,  the  ordinary  skill,  knowledge 
and  efficiency  of  base  ball  players  is  all  that 
Is  required;  Baltimore  Baseball  Club  &  Ex- 
hibition Co.  v.  Pickett,  78  Md.  375,  28  Atl. 
279,  22  L.  R.  A.  690,  44  Am.  St.  Rep.  304. 

See  Specific  Pertokmance  of  Negative 
Covenants;  Injunction. 

BASE  COIN.  Debased  coin.  Cohens  v. 
Virginia,  6  Wheat.  (U.  S.)  333,  5  L.  Ed.  257. 

BASE  COURT.  An  inferior  court,  that  is, 
not  of  record,  as  the  court  baron.  Cunning- 
ham. 

BASE  FEE.  A  fee  which  has  a  qualifi- 
cation annexed  to  it,  and  which  must  be 
determined  whenever  the  annexed  qualifica- 
tion requires. 

A  grant  to  A  and  his  heirs,  tenants  of  Dale,  con- 
tinues only  while  they  are  such  tenants;  2  Bla. 
Com.  109.  See  Wiggins  Ferry  Co.  v.  R.  Co.,  91 
111.  93. 

The  proprietor  of  such  a  fee  has  all  the 
rights  of  the  owner  of  a  fee-simple  until  his 
estate  is  determined.  Plowd.  557  ;  1  Washb. 
R.  P.  62 ;    1  Prest.  Est.  431 ;    Co.  Litt  1  b. 

BASE  SERVICES.  Such  services  as  were 
unworthy  to  be  performed  by  the  nobler  men, 


and   were   performed   by    tin  and 

those  of  servile  rank.     2   Bla.   Cum. 
Washb.  R.  P.  25. 

BASEMENT.  A  floor  partly  beneath  the 
surface  of  the  ground  but  distinguished  from 
a  cellar  by  being  well  lighted  anil  fitted  fur 
living  purposes.  In  England  the  ground  floor 
of  a  city  house. 

BASILICA.  An  abridgment  of  the  Corpus 
Juris  Civilis  of  Justinian,  translated  into 
Greek  and  first  published  in  the  ninth  cen- 
tury. 

The  emperor  Basilius,  finding  the  Corpus  Juri3 
Civilis  of  Justinian  too  long  and  obscure,  resolved 
to  abridge  it,  and  under  his  auspices  the  work  was 
commenced  a.  d.  807,  and  proceeded  to  the  fortieth 
book,  which  at  his  death  remained  unfinished.  His 
son  and  successor,  Leo  Philosophus,  continued  the 
work,  and  published  it,  in  sixty  books,  about  the 
year  880.  Constantine  Porphyro-genitus,  younger 
brother  of  Leo,  revised  the  work,  rearranged  It,  and 
republished  it,  a.  d.  947.  From  that  time  the  laws 
of  Justinian  ceased  to  have  any  force  in  the  eastern 
empire,  and  the  Basilica  were  the  foundation  of  the 
law  observed  there  till  Constantine  XIII.,  the  last 
of  the  Greek  emperors,  under  whom,  in  1453,  Con- 
stantinople was  taken  by  Mahomet  the  Turk,  who 
put  an  end  to  the  empire  and  its  laws.  Histoire  de 
la  Jurisprudence;  Etienne,  Intr.  a  l'Etude  du  Droit 
Romain,  §  53.  The  Basilica  were  translated  into 
Latin  by  J.  Cujas  (Cujacius),  Professor  of  Law  in 
the  University  of  Bourges,  and  published  at  Lyons, 
-2d  of  January,  1566,  in  one   folio  volume. 

BAS0CHE  (Fi\).  An  association  of  the 
"Clercs  du  Parlement"  of  Paris,  supposed  to 
have  been  instituted  in  1302.  It  judged  all 
civil  and  criminal  matters  that  arose  among 
the  clerks  and  all  actions  brought  against 
them.    Hist,  for  Ready  Reference. 

BASSA  TENURA.     See  Base  Fee. 

BASTARD  (has  or  bast,  abject,  low,  base, 
acrd,  nature). 

One  born  of  an  illicit  connection,  and  be- 
fore the  lawful  marriage  of  its  parents. 

One  begotten  and  born  out  of  lawful  wed- 
lock.   2  Kent  208. 

One  born  of  an  illicit  union.  La.  Civ.  Code, 
arts.  29,  199. 

The  second  definition,  which  is  substantially  the 
same  as  Blackstone's,  is  open  to  the  objection  that 
it  does  not  include  with  sufficient  certainty  those 
cases  where  children  are  born  during  wedlock  but 
are  not  the  children  of  the  mother's  husband. 

The  term  is  said  to  include  those  born  of 
parties  under  disability  to  contract  mar- 
riage, as  slaves.  Timmins  v.  Lacy,  30  Tex. 
115. 

A  child  is  a  bastard  if  born  before  the 
marriage  of  his  parents,  but  he  is  not  a  bas- 
tard if  born  after  marriage,  although  begot- 
ten before;  1  Bla.  Com.  4T>5,  -4-~G ;  8  East 
210 ;  State  v.  Herman,  35  N.  C.  5012.  By  the 
civil  law  and  by  the  statute  law  of  many  of 
the  states,  a  subsequent  marriage  of  the  par- 
ents legitimates  children  born  prior  thereto. 
The  rule  prevails  substantially  in  Arkansas, 
Alabama,  Georgia,  Illinois,  Indiana,  Ken- 
tucky, Louisiana,  Maine,  Maryland,  Massa- 
chusetts, Mississippi,  Missouri,  New  Hamp- 
shire,  Ohio,  Pennsylvania,  Texas,   Vermont, 


BASTARD 


330 


BASTARD 


and  Virginia,  with  somewhat  varying  provi- 
sions in  the  different  states;  2  Kent  210; 
but  under  the  common  law  this  is  not  so; 
Brock  v.  State,  85  Ind.  397;  Ross  v.  Ross, 
129  Mass.  243,  37  Am.  Rep.  321.     See  Heib. 

A  child  is  a  bastard  if  horn  during  • 
ture  under  such  circumstances  as  to  make 
it  impossible  that  the  husband  of  his  mother 
can  be  his  father;    Nidi.   Adult.   Bast.    249; 
Hall  v.  Com.,  Hard.  (Ky.)  479;    Patterson  v. 
Gaines,  G  How.   (U.   S.)  550,  12  L.   Ed.  553; 
2  M.  A:  K.  349;    State  v.  Britt,  78  N.  G.  439; 
Herring  v.  Goodson,  43  Miss.   392;    Bussom 
v.   Forsyth,   32  N.    J.   Eq.    277;    Kleinert  v. 
Khlcrs,  38  Pa.  439;  Caujolle  v.  Forrie,  23  N. 
Y.   90;    but  in  England  the  presumption  of 
legitimacy  holds  if  the  husband  had  any  op- 
portunity of  sexual  access  during  the  natu- 
ral period  of  gestation,  and  the  question  for 
the  jury  is  not— was  the  husband  the  father, 
but  could  he  have  been;   1  Broom  &  H.  Com. 
562;     and   such   is    the    rule   in    the    United 
States;  Van  Aernam  v.  Van  Aernam,  1  Barb. 
Ch.  (N.   Y.)  375;    Dennison  v.  Page,  29  Pa. 
420,   72  Am.  Dec.  644 ;    Watts  v.  Owen,  62 
Wis.  512,  22  N.  W.  720;    Chase's  Bla.  Com. 
172,  n.  13.     If  there  were  opportunities  for 
intercourse,  evidence  is  generally  not  allowed 
to  establish  illegitimacy  ;    2  Gr.  Ev.  §§  150, 
151  and  n. ;    Inhabitants  of  Abington  v.  In- 
habitants of  Duxbury,  105  Mass.  287.     See 
9  Beav.  552 ;   1  Whart.  Ev.  §  608 ;  2  id.  1298 ; 
1  Bish.  Mar.  &  Div.  §§  1170,  1179.    It  is,  how- 
ever, held  that  a  strong  moral  impossibility, 
or  such  improbability  as  to  he  beyond  a  rea- 
sonable doubt  is  sufficient;    Stegall  v.   Ste- 
gall,   2   Brock.    256,   Fed.    Cas.    No.    13,351; 
Cross  v.  Cross,  3  Paige    Ch.  (N.  Y.)  139,  23 
Am.  Dec.  778 ;    Wright  v.  Hicks,  15  Ga.  160, 
60  Am.  Dec.  6S7 ;    State  v.  Herman,  35  N.  C. 
502.     The  presumption   of   legitimacy   of   a 
child  born  in   wedlock  is  so  strong  that  it 
cannot  be  overcome  by  proof  of  the  adultery 
of  the  wife  while  cohabiting  with  her  hus- 
band, much  less  by   the  mere  admission  of 
the  adulterer ;    Grant  v.  Mitchell,  S3  Me.  23, 
21  Atl.  178;    [1903]  P.  141;    1  Moo.  &  Rob. 
269,  where  Alderson,  B.,  said:    "The  law  will 
not  under  such  circumstances,  allow  a  bal- 
ance of  evidence,  as  to  who  is  most  likely  to 
have  been  the  father." 

As  to  who  may  be  admitted  to  prove  non- 
access,  see  3  E.  L.  &  Eq.  100;  Bowles  v. 
Bingham,  2  Munf.  (Va.)  442,  5  Am.  Dec.  497; 
People  v.  Overseers  of  Poor,  15  Barb.  (N.  Y.) 
286  ;  Parker  v.  Way,  15  N.  H.  45  ;  Dennison 
v.  Tage,  29  Pa.  420,  72  Am.  Dec.  644 ;  1  Bla. 
Com.  458;  Gardner  Peerage  Case,  Le  Mar- 
chant's  report;  5  C.  &  F.  163;  Dejol  v.  John- 
son, 12  La.  Ann.  S53.  Neither  husband  nor 
wife  are  competent  for  this  purpose;  Mink 
v.  State.  60  Wis.  583,  19  N.  W.  445,  50  Am. 
Rep.  386;  Tiogo  County  v.  South  Creep  Tp., 
75  Pa.  436 ;  Corson  v.  Corson,  44  N.  H.  587 ; 
1  Q.  B.  444;  5  Ad.  &  E.  180;  but  see  Slate 
v.  McDowell,  101  N.  C.  734,  7  S.  E.  7S5,  and 
see  Access. 


The  child  may  be  exhibited  to  the  jury  to 
show  resemblance  to  the  putative  father; 
Gaunt  v.  State,  50  X.  J.  L.  490,  14  Atl.  600; 
Finnegan  v.  Dugan,  14  Allen  (Mass.)  197; 
Warlick  v.  White,  76  N.  C.  175;  15  Yale  L. 
J.  96;  contra,  Clark  v.  Bradstreet,  SO  Me. 
154,  15  Atl.  56,  6  Am.  St.  Rep.  221.  See  14 
Harv.  L.  Rev.  545. 

A  child  is  a  bastard  if  born  beyond  a  com- 
petent time  after  the  coverture  has  deter- 
mined; Co.  Litt.  123  o;  Hargrave  &  B.  note; 
2  Kent  210.     See  Gestation. 

The  principal  right  which  a  bastard  child 
has  is  that  of  maintenance  from  his  parents ; 
1  Bla.  Com.  458;  La.  Civ.  Code  §  254; 
(though  not  from  his  father  at  common  law ; 
Schoul.  Dom.  Rel.  *3S4) ;  which  may  be  se- 
cured by  the  public  officers  who  would  be 
charged  with  the  support  of  the  child,  by  a 
peculiar  process,  or  in  some  cases  by  the 
mother;  2  Kent  215.  A  bastard  has  no  in- 
heritable blood  at  common  law ;  but  he  may 
take  by  devise  if  described  by  the  name  he 
has  gained  by  reputation ;  1  Ves.  &  B.  423 ; 
Stover  v.  Boswell's  Heir,  3  Dana  (Ky.)  233; 
Cooley  v.  Dewey,  4  Pick.  (Mass.)  93,  16  Am. 
Dec.  326;  Barwick  v.  Miller,  4  Des.  Eq.  (S. 
C.)  434.  In  many  of  the  states,  by  statute, 
bastards  can  inherit  from  and  transmit  to 
their  mothers  real  and  personal  estate  under 
some  modifications;  2  Kent  213;  Schoul. 
Dom.  Rel.  *381 ;  Pettus  v.  Dawson,  82  Tex. 
18,  17  S.  W.  714;  see  Stoltz  v.  Doering,  112 
111.  234;  Cox  v.  Rash,  82  Ind.  519;  and  in 
Utah  it  can  inherit  from  its  father ;  Cope  v. 
Cope,  137  U.  S.  682,  11  Sup.  Ct.  222,  34  L. 
Ed.  832.  Whether  a  person  claiming  an  in- 
heritance in'  real  estate  is  the  lawful  child  of 
the  last  owner  is  to  be  determined  by  the 
lex  rel  sitce;  Ross  v.  Ross,  129  Ma;s:  243,  37 
Am.  Rep.  321. 

Nearly  all  of  the  states  have  statutory 
provisions  relative  to  bastardy  proceedings 
and  as  to  the  liability  of  the  father  crimi- 
nally as  well  as  to  the  care  of  the  child. 

In  bastardy  proceedings,  evidence  of  im- 
proper relations  of  the  prosecutrix  with  oth- 
er men  than  the  defendant,  but  not  during 
the  period  of  gestation,  is  incompetent;  Ol- 
son v.  Peterson,  33  Neb.  35S,  50  N.  W.  155. 

Bastardy  complaints  are  civil  actions;  85 
Me.  2S5 ;  they  abate  on  the  death  of  the  re- 
spondent before  trial  and  during  the  pend- 
ency of  the  proceedings ;  McKenzie  v.  Lom- 
bard, 85  Me.  224,  27  Atl.  110.     See  Heib. 

BASTARD  EIGNE.  Bastard  elder. 
By  the  old  English  law,  when  a  man  had  a  bastard 
son,  and  he  afterwards  married  the  mother,  and  by 
her  had  a  legitimate  son,  the  first  was  called  a  bas- 
tard eigne,  or,  as  it  is  now  spelled,  aine,  and  the 
second  son  was  called  puisne,  or  since  born,  or 
sometimes  he  was  called  mulier  puisne.  2  Bla. 
Com.   243. 


BASTARD  A.  A  female  bastard.  Calvinus, 
Lex. 

BASTARDY.  The  offence  of  begetting  a 
bastard  child.    The  condition  of  a  bastard. 


BASTARDY  PROCESS 


331 


BATTI.RY 


BASTARDY  PROCESS.  The  statutory 
mode  of  proceeding  against  the  putative  fa- 
ther of  a  bastard  to  secure  a  proper  mainte- 
nance for  the  bastard. 

BASTON.  In  Old  English  Law.  A  staff 
or  club. 

In  some  old  English  statutes  the  servants  or  of- 
ficers of  the  wardens  of  the  fleet  are  so  called,  be- 
cause they  attended  the  king's  courts  with  a  red 
staff.    See  Justices  of  Trail  Baston. 

BATTEL.     See  Wageb  of  Battel. 

BATTERY.  Any  unlawful  beating,  or  oth- 
er wrongful  physical  violence  or  constraint, 
inflicted  on  a  huiiiau  being  without  his  con- 
sent. 2  Bish.  Cr.  L.  §  71 ;  Clark,  Cr.  L.  199 ; 
Long  v.  Rogers,  17  Ala.  540;  Pike  v.  Han- 
son. 9  N.  II.  -JUL  • 

An  unlawful  touching  the  person  of  an- 
other by  the  aggressor  himself,  or  any  other 
substance  put  in  motion  by  him ;  Kirland  v. 
State,  43  Ind.  153,  13  Am.  Rep.  386.  The 
slightest  touching  of  another  in  anger  is  a 
battery  ;    Goodrum  v.  State,  60  Ga.  511. 

It  must  be  either  wilfully  committed,  or 
proceed  from  want  of  due  care ;  Stra.  596 ; 
Plowd.  19;  Bullock  v.  Babcock,  3  Wend.  (N. 
Y.)  391.  Hence  an  injury,  be  it  ever  so  small, 
done  to  the  person  of  another  in  an  angry, 
spiteful,  rude,  or  insolent  manner ;  Com.  v. 
Wing,  9  Pick.  (Mass.)  1,  19  Am.  Dec.  347; 
as  by  spitting  in  his  face;  6  Mod.  172;  or 
on  his  body ;  1  Swint.  597 ;  or  any  way 
touching  him  in  anger;  1  Russell,  Cr.  751; 
Johnson  v.  State,  17  Tex.  515;  or  throwing 
water  on  him ;  3  N.  &  P.  564 ;  or  violently 
jostling  him ;  see  4  H.  &  N.  4S1 ;  or  where 
one  riding  a  bicycle  recklessly  runs  against 
a  person  standing  with  his  back  partially  to- 
wards him,  when  by  the  exercise  of  slight 
care  it  could  be  avoided ;  Mercer  v.  Corbin, 
117  Ind.  450,  20  N.  E.  132,  3  L.  R.  A.  221,  10 
Am.  St.  Rep.  76;  is  a  battery  in  the  eye  of 
the  law;  1  Hawk.  PI.  Cr.  263.  And  any- 
thing attached  to  the  person  partakes  of  its 
inviolability:  if,  therefore,  A  strikes  a  cane 
in  the  hands  of  B,  it  is  a  battery ;  Respub- 
lica  v.  De  Longchamps,  1  Dall.  (U.  S.)  114,  1 
L.  Ed.  59;  State  v.  Davis,  1  Hill  (S.  C.)  46; 
Rich  v.  Hogeboom,  4  Denio  (N.  Y.)  453 ;  Unit- 
ed States  v.  Ortega,  4  Wash.  C.  C.  534,  Fed. 
Cas.  No.  15,971.  Whether  striking  a  horse  is 
striking  the  driver,  see  Kirland  v.  State,  43 
Ind.  146,  13  Am.  Rep.  3S6. 

A  battery  may  be  justified  on  various  ac- 
counts. 

As  a  salutary  mode  of  correction.  A  par- 
ent may  correct  his  child  (though  if  done  to 
excess,  it  is  battery)  ;  Com.  v.  Coffey,  121 
Mass.  66;  Neal  v.  State,  54  Ga.  2S1;  Smith 
v.  Slocum,  62  111.  354;  a  guardian  his  ward; 
Stanfield  v.  State,  43  Tex.  167 ;  a  master  his 
apprentice;  24  Edw.  IV.;  Com.  v.  Randall, 
4  Gray  (Mass.)  36 ;  State  v.  Pendergrass,  19 
N.  C.  365,  31  Am.  Dec.  416;  a  teacher  his 
scholar,  within  reason;  State  v.  Mizner,  45 
la.  24S,  24  Am.  Rep.  769 ;  State  v.  Alford,  6S 


N.  C.  322:    Starr  v.  Liftchild,  40  Bar'. 
Y.)  511 ;   Marlsbary  v.  State,  10  Ind.  App.  21, 
37  N.  E.  558;    and  a  superior  officer,  one  un- 
der his  command ;   Keilw.  136 ;    Buller,  N.  P. 
19;    Pee,   Adm.   161;    Flemming  v.   Ball,  1 
Bay  (S.  C.)  3;    Brown  v.  Howard,  14  .1 
(N.  Y.)    ll!);     Sampson   v.   Smith,  15   I 
365.     And  see  Cowp.  173;    Uanneu  v.   I 
15  Mass.  347;    3  C.  &  K.  142;    but  a  mi 
ordinarily,   not  his  servant;    Com.  v.  Baird, 
1    Aslnn.    (Pa.)    267;     Davis   v.    State.   6 
App.  133;    and  the  mate  of  a  it  has 

il   right  to  enforce  his  order 
ing  one  of  the  crew;    The  General  Rucker, 

:.  152.     See  Assault:    Beat;    i 
tion.      Doubtless    these    cases,    or    some    of 
them,  would  hardly  now  be  followed. 

As  a  incut-  of  preserving  the  peace,  in  the 
exercise  of  an  oltice,  under  process  of  court, 
and  in  aid  of  an  authority  at  law.  See  Ar- 
rest. 

As  a  necessary  means  of  defence  of  the 
person  against  the  plaintiffs  assaults  in  the 
following  instances:  in  defence  of  himself, 
his  wife,  3  Salk.  46,  his  child,  and  his  serv- 
ant. 0\v.  1-50  (but  see  1  Salk.  407) ;  but  he 
is  not  justified  in  using  force  against  a  man 
to  prevent  his  wife  leaving  him  at  the  per- 
suasion of  such  other ;  State  v.  Weathers,  98 
N.  C.  6S5,  4  S.  E.  512.  So,  likewise,  a  p 
may  defend  any  member  of  his  family 
against  an  assault  as  he  could  himself,  the 
wife  may  justify  a  battery  in  defending  her 
husband,  the  child  its  parent,  and  the  serv- 
ant his  master;  3  Salk.  46;  Com.  v.  Malone, 
114  Mass.  295;  Smith  v.  Slocum,  62  111.  354; 
Patten  v.  People,  IS  Mich.  314,  100  Am.  Dec. 
173;  State  v.  Greer,  22  W.  Ya.  S00 ;  Staten 
v.  State,  30  Miss.  619;  Webb,  Poll.  Torts. 
255.  In  these  situations,  the  party  need  not 
wait  until  a  blow  has  been  given  ;  for  then 
he  might  come  too  late,  and  be  disabled  from 
warding  off  a  second  stroke  or  from  protect- 
ing the  person  assailed.  Care,  however, 
must  be  taken  that  the  battery  do  not  exceed 
the  bounds  of  necessary  defence  and  protec- 
tion; for  it  is  only  permitted  as  a  means  to 
avert  an  impending  evil  which  might  other- 
wise overwhelm  the  party  and  not  as  a  pun- 
ishment or  retaliation  for  the  injurious  at- 
tempt ;  Stra.  593;  1  Const.  S.  C.  34;  Wat- 
rous  v.  Steel.  4  Yt.  629.  24  Am.  Dee. 
Shain  v.  Markham.  4  J.  .7.  Marsh.  (Ky.)  57S, 
20  Am.  Dec.  232;  Poll.  Torts  255.  The  de- 
gree of  force  necessary  to  repel  an  assault 
will  naturally  depend  upon,  and  he  propor- 
tioned to,  the  violence  of  the  assailant;  hut 
with  this  limitation  any  degree  is  jus 
ble;  1  Rd.  Raym.  177;  Young  v.  State,  11 
Humphr.  (Tenn.)  200;  Shorter  v.  People.  2 
N.  Y.  193,  51  Am.  Dec.  286;  Stewart  v.  State, 
1  Ohio  St.  66;  Holmes  v.  State.  23  Ala.  17; 
Carroll  v.  State.  23  Ala.  28,  58  Am.  Dec.  2S2  ; 
Rapp  v.  Com..  14  B.  Monr.  (Ky.)  614;  Camp- 
hell  v.  People.  16  111.  17,  61  Am.  Dec.  49; 
Mouroe  v.  State,  5  Ga.  85. 


BATTERY 


332 


BAWDY-HOUSE 


Evidence  justifying  an  assault  and  battery 
is  not  admissible  under  a  general  denial; 
Hathaway  v.  Hatcbard,  1G0  Mass.  29G,  35  N. 

B.  857. 

A  battery  may  likewise  be  justified  in  tbe 
necessary  defence  of  one's  property;  State 
v.  Miller,  12  Vt  437;  Filkins  v.  People,  G9 
N.  Y.  101,  25  Am.  Rep.  143.  If  tbe  plaintiff  is 
in  tbe  act  of  entering  peaceably  upon  tbe  de- 
fendant's land,  or,  baving  entered,  is  discov- 
ered, not  committing  violence,  a  request  to 
depart  is  necessary  in  the  first  instance;  2 
Salk.  641 ;  Abt  v.  Burgbeim,  80  111.  92 ;  see 
Low  v.  Elwell,  121  Mass.  309,  23  Am.  Rep. 
272;  Townsend  v.  Briggs,  99  Cal.  4S1,  34 
Pac.  116;  and  if  the  plaintiff  refuses,  the 
defendant  may  tbeu,  and  not  till  then,  gently 
lay  bands  upon  tbe  plaintiff  to  remove  him 
from  the  close,  and  for  this  purpose  may  use, 
if  necessary,  any  degree  of  force  short  of 
striking  the  plaintiff,  as  by  thrusting  him 
off-;  Skinn.  28.  See  Everton  v.  Esgate,  24 
Neb.  235,  38  N.  W.  794.  If  the  plaintiff  re- 
sists, the  defendant  may  oppose  force  to 
force;    Com.  v.  Clark,  2  Mete.  (Mass.)  23;   1 

C.  &  P.  6.  But  if  the  plaintiff  is  in  the  act  of 
forcibly  entering  upon  the  land,  or,  having 
entered,  is  discovered  subverting  the  soil, 
cutting  down  a  tree,  or  the  like,  2  Salk.  641, 
a  previous  request  is  unnecessary,  and  the 
defendant  may  immediately  lay  hands  upon 
the  plaintiff ;  8  Term  78.  A  man  may  justify 
a  battery  in  defence  of  his  personal  property 
without  a  previous  request,  if  another  forci- 
bly attempt  to  take  away  such  property ;  2 
Salk.  641.  One  from  whom  property  has 
been  wrongfully  taken  may  regain  the  mo- 
mentarily interrupted  possession  by  the  use 
of  reasonable  force,  especially  after  demand- 
ing possession;  Com.  v.  Donahue,  148  Mass. 
529,  20  N.  E.  171,  2  L.  R.  A.  623,  12  Am.  St. 
Rep.  591. 

BATTONIER.  In  French  and  Canadian 
law,  a  member  of  the  bar  selected  as  the 
head  of  the  bar. 

B'ATTURE  (Fr.  shoals,  shallows).  An 
elevation  of  the  bed  of  a  river  under  the  sur- 
face of  the  water;  but  it  is  sometimes  used 
to  signify  the  same  elevation  when  it  has 
risen  above  the  surface.  Morgan  v.  Living- 
ston, 6  Mart.  (O.  S.)  19,  216.  See  Municipal- 
ity No.  2  v.  Orleans  Cotton  Press,  18  La.  123, 
36  Am.  Dec.  624;  Hollingsworth  v.  Chaffe, 
33  La.  Ann.  551. 

The  term  battures  is  applied  principally  to  cer- 
tain portions  of  the  bed  of  the  river  Mississippi, 
which  are  left  dry  when  the  water  Is  low,  and  aro 
covered  again,  either  in  whole  or  in  part,  by  the  an- 
nual swells. 

If  it  rises  high,  to  be  susceptible  of  own- 
ership it  does  not  pass  in  a  grant  of  the  ad- 
jacent land ;  Producers'  Oil  Co.  v.  Hanszen, 
132  La.  691,  61' South.  754. 

BAWDY-HOUSE.  A  house  of  ill-fame, 
kept  for  the  resort  and  unlawful  commerce 


of  lewd  people  of  both  sexes.     State  v.  Ev- 
ans, 27  N.  C.  603.     See  House  of  III  Fame. 

BAY.  An  enclosure,  or  other  contrivance, 
to  keep  in  the  water  for  the  supply  of  a  mill, 
so  that  the  water  may  be  able  to  drive  the 
wheels  of  such  mill.  Stat  27  Eliz.  c.  19. 
(This  is  generally  called  a  forebay.) 

A  bending  or  curving  of  the  shore  of  the 
sea  or  of  a  lake,  so  as  to  form  a  more  or  less 
inclosed  body  of  water.  State  v.  Town  of 
Gilmanton,  14  N.  H.  477. 

BAY  WINDOW.  A  window  projecting 
from  the  wall  of  a  building  so  as  to  form 
a  recess  or  bay  within  and,  properly  speak- 
ing, rising  from  tbe  ground  or  basement,  with 
straight  sides  only;  but  the  term  is  also  or- 
dinarily applied  to  such  projecting  windows 
with  curved  sides,  properly  called  bow  win- 
dows, and  also  to  projecting  windows  sup- 
ported from  the  building,  above  the  ground, 
properly  called  oriel  windows. 

The  footways  of  streets  being  under  mu- 
nicipal control,  the  authorities  may  deter- 
mine the  extent  to  which  the  sidewalks  may 
be  obstructed  by  such  projections  beyond  the 
building  line ;  their  erection  will  not  be  en- 
joined by  a  court  of  equity  if  it  appear  that 
they  will  cause  no  appreciable  injury,  either 
by  the  finding  of  the  master  to  that  effect; 
Livingston  v.  Wolf,  136  Pa.  519,  20  Atl.  551, 
20  Am.  St.  Rep.  936;  or  from  the  affidavits 
submitted  on  an  application  by  the  attorney- 
general  to  prevent  the  erection  as  a  public 
nuisance;  Gray  v.  Bay'nard,  5  Del.  Ch.  499. 
Equity  will  not  interfere  in  such  cases  at 
suit  of  a  private  person ;  Blanchard  v.  Rey- 
burn,  1  W.  N.  C.  (Pa.)  529 ;  but  will  at  suit  of 
the  attorney-general  to  prevent  the  erection 
of  bay  windows  extending  over  the  street; 
Commonwealth  v.  Harris,  10  W.  N.  C.  (Pa.) 
10;  Com.  v.  Reimer,  39  Leg.  Int.  (Pa.)  108; 
and  a  second  story  bay  window  is  a  nuisance 
and  will  be  restrained;  Appeal  of  Reimer, 
100  Pa.  182,  45  Am.  Rep.  373. 

BAYOU.  A  stream  which  is  the  outlet  of 
a  swamp  near  the  sea.  Applied  to  the  creeks 
in  the  lowlands  lying  on  the  Gulf  of  Mexico. 

BEACH.    See  Foreshore;  Sea-Shore. 

BEACONAGE.  Money  paid  for  the  main- 
tenance of  a  beacon.  Comyns,  Dig.  Naviga- 
tion (H). 

BEADLE  (Sax.  Beodan,  to  bid).  A 
church  servant  chosen  by  the  vestry,  whose 
business  it  is  to  attend  tbe  vestry,  to  give  no- 
tice of  its  meetings,  to  execute  its  orders,  to 
attend  upon  inquests,  and  to  assist  the  con- 
stables.   See  BEnEL. 

BEARER.  One  who  bears  or  carries  a 
thing. 

If  a  bill  or  note  be  made  payable  to  bear- 
er, it  will  pass  by  delivery  only,  without  in- 
dorsement; and  whoever  fairly  acquires  a 
right  to  it  may  maintain  an  action  against 
the  drawer  or  acceptor. 


BEAKER 


:::::; 


BEAUPEEADER 


It  has  been  decided  that  the  bearer  of  a 
bank  note,  payable  to  bearer,  is  not  an  as- 
signee of  a  chose  in  action  within  the  elev- 
enth section  of  the  judiciary  act  of  1789,  c. 
20,  limiting  the  jurisdiction  of  the  circuit 
court ;  Wood  v.  Dumuier,  3  Mas.  308,  Fed. 
Cas.  No.  17,944. 

BEARERS.  Such  as  bear  down  or  oppress 
others ;    maintainers. 

BEARING  DATE.  Words  frequently  used 
In  pleading  and  conveyancing  to  introduce 
the  date  which  has  been  put  upon  an  in- 
strument. 

When  in  a  declaration  the  plaintiff  alleges 
that  the  defendant  made  his  promissory  note 
on  such  a  day,  he  will  not  be  considered  as 
having  alleged  that  it  bore  date  on  that  day, 
so  as  to  cause  a  variance  between  the  dec- 
laration and  the  note  produced  bearing  a  dif- 
ferent date ;  2  Greenl.  Ev.  §  1G0 ;  2  Dowl.  & 
L.  759. 

BEAST.  Any  four-footed  animal  which 
may  be  used  for  labor,  food,  or  sport;  as 
opposed  to  man ;  any  irrational  animal. 
Webst  A  cow  is  a  beast;  Taylor  v.  State,  6 
Humph.  (Tenn.)  2S5  ;  and  so  is  a  horse ;  Win- 
frey v.  Zimmerman,  8  Bush  (Ky.)  5S7 ;  and 
a  hog ;  State  v.  Enslow,  10  la.  115 ;  but  a 
dog  was  held  not  to  be ;  IT.  S.  v.  Gideon,  1 
Minn.  292  (Gil.  22G) ;  but  see  Morewood  v. 
Wakefield,  133  Mass.  241. 

BEASTS  OF  THE  CHASE.  Properly,  the 
buck,  doe,  fox,  martin,  and  roe,  but  in  a 
common  and  legal  sense  extending  likewise 
to  all  the  beasts  of  the  forest,  which  beside 
the  others  are  reckoned  to  be  the  hind,  hare, 
bear,  and  wolf,  and,  in  a  word,  all  wild 
beasts  of  venery  or  hunting.  Co.  Litt.  233 ; 
2  Bla.  Com.  39.     See  Animal. 

BEASTS  OF  THE  FOREST.  See  Beasts 
of  the  Chase. 

BEASTS  OF  THE  WARREN.  Hares,  con- 
eys, and  roes.    Co.  Litt.  233;  2  Bla.  Com.  39. 

BEAT  or  BEATING.  To  strike  or  hit  re- 
peatedly, as  with  blows. 

To  beat,  in  a  legal  sense,  is  not  merely  to 
whip,  wound,  or  hurt,  but  includes  any  un- 
lawful imposition  of  the  hand  or  arm.  The 
slightest  touching  of  another  in  anger  is  a 
battery.    Goodrum  v.  State,  60  Ga.  511. 

The  beating  of  a  horse  by  a  man  refers  to 
the  infliction  of  blows:  Com.  v.  McClellan, 
101  Mass.  35.     See  Battery. 

BEATING  OF  THE  BOUNDS.  An  an- 
cient custom  in  England  by  which,  once  a 
year,  the  minister,  etc.,  of  a  parish  walked 
about  its  boundaries  to  preserve  a  recollec- 
tion of  them.     Cent.  Diet.  (Perambulation). 

BEAU  PLEADER  (L.  Fr.  fair  pleading).  A 
writ  of  prohibition  directed  to  the  sheriff  or 
another,  directing  him  not  to  take  a  fine  for 
beaupleader. 

There  was  anciently  a  fine  imposed  called  a  fine 
for    beaupleader,    which.    Is    explained    by    Coke    to 


have  been  originally  Imposed  for  bad  pleading. 
Coke,  2d  Inst.  123.  It  was  set  at  the  will  of  th: 
judge  of  the  court,  and  reduced  to  certainty  by  con- 
sent, and  annually  paid.  Com.  Dig.  Prerogative  (D, 
52).  The  statute  of  Mark-bridge  (5^  Hen.  III. J  c.  11, 
enacts,  that  neither  in  the  circuit  of  Justices,  nor  in 
counties,  hundreds,  or  courts-baron,  any  fines  shall 
be  taken  for  fair  pleading;  namely,  for  not  plead- 
ing fairly  or  aptly  to  the  purpose.  Upon  this  statute 
this  writ  was  ordained,  directed  to  the  sheriff,  bail- 
iff, or  him  who  shall  demand  the  fine;  and  It  Is  a 
prohibition  or  command  not  to  do  it;  N't 
Brev.  596;  Fitzh.  N.  B.  270  o;  Hall,  Hist.  Comm. 
Law,  c.  7.  Mr.  Reeve  explains  it  as  a  fine  paid  for 
the  privilege  of  a  fair  hearing;  2  Reeve,  Eng.  Law 
70.  This  latter  view  would  perhaps  derive  some 
confirmation  from  the  connection  in  point  of  time 
of  this  statute  with  Magna  Carta,  and  the  resem- 
blance which  the  custom  bore  to  the  other  customs 
against  which  the  clause  In  the  charter  of  nulli  ven- 
demus,  etc.,  was  directed.  See  Com.  Dig.  Preron- 
ative  (D,  51,  52);  Cowell ;  Co.  2d  Inst.  122;  Crabb, 
Eng.  Law  150. 

BED.  The  channel  of  a  stream;  the  part 
between  the  hanks  worn  by  the  regular  flow 
of  the  water.  See  Howard  v.  Ingersoll,  13 
How.  (U.  S.)  426,  14  L.  Ed.  189. 

The  phrase  divorce  from  bed  and  board. 
contains  a  legal  use  of  the  word  synonymous 
with  its  popular  use. 

BED-ALE  or  BID-ALE.  A  friendly  as- 
signation for  neighbors  to  meet  and  drink 
at  the  house  of  newly  married  persons  or  oth- 
er poor  people  and  then  for  the  guests  to 
contribute  to  the  housekeepers.    Cowell. 

BED  E  HOUSE.  A  hospital  or  almshouse 
for  bedesmen  or  poor  people  who  prayed  for 
their  founders  and  benefactors ;  from  the 
Saxon  biddan,  to  pray.     Cunningham. 

BEDEL.  In  English  Law.  A  crier  or  mes- 
senger of  court,  who  summons  men  to  ap- 
pear and  answer  therein.  Cowell.  An  in- 
ferior officer  in  a  parish  or  liberty,  or  in  an 
institution,  such  as  the  Blue  Coat  School  in 
London. 

A  subordinate  officer  of  a  university  who 
walked  with  a  mace  before  one  of  the  of- 
ficers on  ceremonial  occasions  and  perform- 
ed other  minor  duties  ordinarily. 

A  herald  to  make  public  proclamations. 
Cent  Diet. 

The  more  usual  spelling  is  Beadle,  q.  v. 

BEDELARY.  The  jurisdiction  of  a  bedel. 
as  a  bailiwick  is  the  jurisdiction  of  a  bail- 
iff.    Co.  Litt.  234  b;    Cowell. 

BEDEREPE.  A  service  which  certain  ten- 
ants were  anciently  bound  to  perform,  as  to 
reap  their  landlord's  com  at  harvest  Said 
by  Whishaw  to  be  still  in  existence  in  some 
parts  of  England.    Blount;    Cowell. 

BEDEWERI.  Those  which  we  now  call 
banditti;  profligate  and  excommunicated 
persons.     Cunningham. 

BEEF.  This  word  is  used  frequently  to 
mean  an  animal  of  the  cow  species  and  not 
beef  prepared  for  market.  A  beef  or  one 
beef  is  an  expression  frequently  used  to  des- 
ignate an  animal  fit  for  use  as  beef,  instead 


BEEF 


334 


BELIEF 


of  designating  it  as  a  steer,  a  heifer,  an  ox, 
or  a  cow.    Davis  v.  State,  40  Tex.  135. 

BEER.  A  malt  liquor  of  the  lighter  sort 
and  differs  from  ordinary  beer  or  ales,  not 
so  much  in  its  ingredients  as  in  its  processes 
of  fermentation. 

BEES  are  animals  force  naturw  while  un- 
reclaimed; Wallis  v.  Mease,  3  Binn.  (Pa.) 
546;  Cock  v.  Weatherby,  5  Sinedes  &  M. 
(Miss.)  333.  See  Inst.  2.  1.  14;  Dig.  41.  1.  5. 
2;  Gillet  v.  Mason,  7  Johns.  (N.  Y.)  16;  2 
Bla.  Com.  392.  If  while  so  unreclaimed  they 
take  up  their  abode  in  a  tree,  they  belong 
to  the  owner  of  the  soil,  but  not  so  if  re- 
claimed and  they  can  be  identified;  Goff  v. 
Kilts.  15  Wend.  (N.  Y.)  550.  See  Ferguson 
v.  Miller,  1  Cow.  (N.  Y.)  243,  13  Am.  Dec. 
519;  Idol  v.  Jones,  13  N.  C.  162.  See  Ani- 
mal. 

BEGGAR.  One  who  obtains  his  liveli- 
hood by  asking  alms.  The  laws  of  several 
of  the  states  punish  begging  as  an  offence. 
See  Tramp;  Vagrant. 

BEGIN.  To  originate.  To  come  into  ex- 
istence. As  to  the  right  to  begin  at  a  trial, 
see  Opening  and  Closing. 

BEGOTTEN.  "To  be  begotten"  means  the 
same  as  "begotten,"  embracing  all  those 
whom  the  parent  shall  have  begotten  during 
his  life,  quos  procreaverit.  1  Maule  &  S.  135 ; 
Wager  v.  Wager,  1  S.  &  R.  (Pa.)  377. 

BEGUN.  In  a  statute  providing  that 
nothing  contained  in  it  should  affect  prose- 
cutions "begun"  under  any  existing  act,  the 
word  "begun"  means  both  those  which  have 
already  been  begun  and  those  which  may 
hereafter  be  begun.  Lang  v.  U.  S.,  133  Fed. 
201,  66  C.  C.  A.  255. 

BEHALF.  Benefit,  support,  defence,  or 
advantage. 

BEHAVIOR.  Manner  of  having,  holding, 
or  keeping  one's  self ;  carriage  of  one's  self, 
with  respect  to  propriety,  morals,  and  the 
requirements  of  law.  Surety  to  be  of  good 
behavior  is  a  larger  requirement  than  surety 
to  keep  the  peace;  Dalton,  c.  122;  4  Burns, 
Just.  355.     See  Good  Behavior. 

BEHETRIA.  In  Spanish  Law.  Lands  sit- 
uated in  districts  and  manors  in  which  the 
inhabitants  had  the  right  to  select  their 
own  lords. 

BEHOOF  (Sax.).  Use ;  service ;  profit ; 
advantage.     It  occurs  in  conveyances. 

BELIEF.  Conviction  of  the  mind,  arising 
not  from  actual  perception  or  knowledge,  but 
by  way  of  inference,  or  from  evidence  re- 
ceived or  information  derived  from  others. 
See  Deceit. 

Belief  may  evidently  be  stronger  or  weaker 
according  to  the  weight  of  evidence  adduced 
in  favor  of  the  proposition  to  which  belief  is 
granted  or  refused ;  Thompson  v.  White,  4 
S.  &  R.  (Pa.)  137 ;   1  Greenl.  Ev.  §§  7-13.    See 


1  Stark.  Ev.  41;  2  Powell,  Mortg.  555;  1 
Ves.  Ch.  95;  12  id.  80;  Dy.  53;  2  W.  Bla. 
S81;  Carmalt  v.  Post,  8  Watts  (Pa.)  406; 
Bennifield  v.  Hypres,  3S  Ind.  504;  Hatch  v. 
der,  9  Gray  (Mass.)  274;  Humphreys 
v.  M<  all.  9  Cal.  62,  70  Am.  Dec.  621;  Ven- 
.  Smith,  10  Pet.  (U.  S.)  171,  9  L.  Ed. 
382. 

BELLIGERENCY.  In  International  Law. 
The  status  of  de  facto  statehood  attributed 
to  a  body  of  insurgents,  by  which  their  hos- 
tilities are  legalized.  Before  they  can  be 
recognized  as  belligerents  they  must  have 
some  sort  of  political  organization  and  be 
carrying  on  what  in  international  law  is  re- 
garded as  legal  war.  There  must  be  an  arm- 
ed struggle  between  two  political  bodies,  each 
of  which  exercises  de  facto  authority  over 
persons  within  a  determined  territory,  and 
commands  an  army  which  is  prepared  to  ob- 
serve the  ordinary  laws  of  war.  It  is  not 
enough  that  the  insurgents  have  an  army ; 
they  must  have  an  organized  civil  authority 
directing  the  army. 

The  exact  point  at  which  revolt  or  insur- 
rection becomes  belligerency  is  often  ex- 
tremely difficult  to  determine;  and  belliger- 
ents are  not  usually  recognized  by  nations 
unless  they  have  some  strong  reason  or  ne- 
cessity for  doing  so,  either  because  the  ter- 
ritory where  the  belligerency  is  supposed  to 
exist  is  contiguous  to  their  own,  or  because 
the  conflict  is  in  some  way  affecting  their 
commerce  or  the  rights  of  their  citizens. 
Thus  in  1875  President  Grant  refused  to  rec- 
ognize the  Cubans  as  belligerents,  although 
they  had  been  maintaining  hostilities  for 
eight  years,  because  they  had  no  real  and 
palpable  political  organization  manifest  to 
the  world,  and  because,  being  possessed  of 
no  seaport,  their  contest  was  solely  on  land 
and  without  the  slightest  effect  upon  com- 
merce? Moore,  Int.  Law  Dig.  I,  196.  One 
of  the  most  serious  results  of  recognizing 
belligerency  is  that  it  frees  the  parent  coun- 
try from  all  responsibility  for  what  takes 
place  within  the  insurgent  lines;  Dana's 
Wheaton,  note  15,  page  35. 

When  revolutionists  have  no  organized  po- 
litical government  and  it  becomes  necessary 
to  recognize  them  in  some  way,  a  status  of 
insurgency  (q.  v.)  is  sometimes  recognized. 
In  this  way  the  parent  state  avoids  the  ne- 
cessity of  treating  the  insurgents  as  pirates 
and  third  Powers  obtain  certain  of  the  rights 
of  neutrals.  In  1895  President  Cleveland 
recognized  a  status  of  insurgency  in  Cuba 
and  enjoined  the  observance  of  the  Neutral- 
ity Laws.  Moore  I,  242.  See  Hall,  6th  ed. 
31-42;    Hershey    11S-123. 

BELLIGERENT.  In  International  Law. 
As  adj.  and  noun.  Engaged  in  lawful  war; 
a  state  so  engaged.  In  plural.  A  body  of 
insurgents  who  by  reason  of  their  temporary 
organized  government  are  regarded  as  con- 
ducting   lawful    hostilities.      Also,    militia, 


BELLIGERENT 


335 


BENEFICE 


corps  of  volunteers,  and  others,  who  although 
not  part  of  the  regular  army  of  the  state,  are 
regarded  as  lawful  combatants  provided  they 
observe  the  laws  of  war;  4  H.  C.  1907,  arts. 
1,  2.     See  War;  Belligerency. 

BELONG.  To  appertain  to;  to  be  the 
property  of.  Property  "belonging"  to  a  per- 
son has  two  general  meanings:  (1)  ownership  ; 
(2)  the  absolute  right  of  user.  A  road  may 
be  said  with  perfect  propriety  to  belong  to  a 
man  who  has  the  right  to  use  it  as  of  right 
although  the  soil  does  not  belong  to  him ;  31 
L.  J.  Ex.  227.     See  Fim 

It  may  also  signify  a  legal  residence.  As, 
the  town  to  which  a  slave  belongs  is  that 
alone  in  which  he  has  a  legal  settlement; 
Columbia  v.  Williams,  3  Conn.  467. 

BELOW.  Inferior;  preliminary.  The 
court  below  is  the  court  from  which  a  cause 
has  been  removed.     See  Bail. 

BENCH.  A  tribunal  for  the  administra- 
tion of  justice. 

The  judges  taken  collectively,  as  distin- 
guished from  counsellors  and  advocates,  who 
are  called  the  bar. 

The  term,  indicating  originally  the  seat  of  the 
judges,  came  to  denote  the  body  of  judges  taken 
collectively,  and  also  the  tribunal  itself.  The  jus 
band,  says  Spelmau,  properly  belongs  to  the  king's 
judges,  who  administer  justice  in  the  last  resort. 
The  judges  of  the  inferior  courts,  as  of  the  barons, 
are  deemed  to  judge  piano  pede,  and  are  such  as  are 
called  in  the  civil  law  pcdanei  judices,  or  by  the 
Greeks  xa^aiSinaaral,  tbat  is  humi  judicantes. 
The  Greeks  called  the  seats  of  their  higher  judges 
(Ififiara,  and  of  their  inferior  judges  fjatipa.  The 
Romans  used  the  word  sella;  and  tribunalia  to  des- 
ignate the  seats  of  their  higher  judges,  and  subsel- 
lia  to  designate  those  of  the  lower.  See  Spelman, 
Gloss.  Bancus;    1  Reeve,  Eng.  Law  40,  4th  ed. 

"The  court  of  common  pleas  in  England  was 
formerly  called  Bancus,  the  Bench,  as  distinguished 
from  Bancus  Regis,  the  King's  Bench.  It  was  also 
called  Communis  Bancus,  the  Common  Bench;  and 
this  title  is  still  retained  by  the  reporters  of  the  de- 
cisions in  the  court  of  Common  Pleas.  Mention  is 
made  in  the  Magna  Charta  'de  justiciariis  nostris 
de  Banco,'  which  all  men  know  to  be  the  justices  of 
the  court  of  Common  Pleas,  commonly  called  the 
Common  Bench,  or  the  Bench."  Viner,  Abr.  Courts 
(n.  2). 

BENCH  WARRANT.  An  order  issued  by 
or  from  a  bench,  for  the  attachment  or  ar- 
rest of  a  person.  It  may  issue  either  in  case 
of  a  contempt,  or  where  an  indictment  has 
been  found. 

BENCHERS.  Seniors  in  the  Inns  of 
Court,  intrusted  with   their  government. 

They  have  the  absolute  and  Irresponsible 
power  of  punishing  a  barrister  of  their  Inn 
guilty  of  misconduct,  by  either  admonishing 
or  rebuking  him,  by  prohibiting  him  from 
dining  in  the  ball,  or  even  by  expelling  him 
from  the  bar,  called  disbarring.  They  may 
also  refuse  admission  to  a  student,  or  reject 
his  call  to  the  bar.  Wharton,  Lex.  But  see 
Barrister,  as  to  the  sole  right  of  the  judges 
to  admit  to  the  bar  and  to  debar. 

See  Inns  of  Court;  Council  of  the  Bar. 


BENEFICE.    An  ecclesiastical  preferment. 

In  its  more  extended  sense,  it  includes  any 
sneb  preferment;  in  a  more  limited  sei: 
applies  to  rectories  and  vicarages  only, 
i  icium  ;  Simony. 

BENEFICE    DE    DISCUSSION.     See  Ben- 
efit of  Discussion. 

BENEFICIAL  ASSOCIATIONS.  Volun- 
tary associations  for  mutual  assistance  in 
need  and  sickness,  and  for  the  care 
of  families  of  deceased  members.  Niblack, 
Ben.  Soc.  and  Accid.  Ins.  These  associa- 
tions form  in  substance  a  very  effect!1 
tern  of  co-operative  life  insurance.  The  pay- 
ment to  the  beneficiary  is  not  a  gift,  but  a 
right  arising  from  the  contract  of  member- 
ship, and  when  the  conditions  of  membership 
have  been  fulfilled  may  be  enforced  at  law; 
id.  ch.  xxvi.  The  suspension  of  a  subordi- 
nate lodge  will  not  defeat  a  recovery  unless 
legally  done;  Young  v.  Grand  Lodge  of  Sons 
of  Progress,  173  Pa.  302,  33  Atl.  1038. 

In  a  suit  for  sick  benefits  the  constitution 
and  by-laws  of  the  society  constitute  the  con- 
tract between  the  parties,  and  the  mode 
which  they  provide  to  ascertain  the  right 
to  benefits  must  be  pursued  in  order  to  re- 
cover; Delaware  Lodge  No.  1,  I.  O.  O.  F.,  v. 
Allmon,  1  Pennewill  (Del.)  100.  00  Atl. 
When  after  a  certificate  had  been  i 
under  the  law  as  it  then  stood  payable  at 
death  to  a  creditor  (named),  a  subsequent 
law  prohibiting  payment  to  other  than  rela- 
tives or  dependents  of  the  insured  could  have 
no  retroactive  effect  nor  compel  him  to  desig- 
nate a  new  beneficiary;  Emrnons  v.  Supreme 
Conclave,  I.  O.  II.,  6  Pennewill  (Del.)  115, 
63  Atl.  S71;  Peterson  v.  Gibson,  191  111.  365, 
CI  N.  E.  127,  54  L.  R.  A.  836,  85  Am.  St.  Rep. 
2C>.°>;  Sargent  v.  Knights  of  Honor.  158  Mass. 
557,  33  N.  E.  650;  Mulderick  v.  Grand  Lodge 
of  A.  O.  U.  W.,  155  Pa.  505,  26  Atl.  6G3; 
Wist  v.  Grand  Lodge  A.  O.  U.  W.,  22  Or. 
271,  29  Pac.  610,  29  Am.  St.  Rep.  603;  Dud- 
ley v.  Queen  City  Camp  No.  27,  W.  O.  W., 
1  Tenn.  Ch.  App.  413;  Roberts  v.  Cohen,  60 
App.  Div.  259,  70  N.  Y.  Supp.  57.  The  bene- 
ficiary has  not  a  vested  right  and  a  change 
could  have  been  made  by  the  member  but 
the  legislation  was  intended  to  be  pi 
tive  and  could  not  propria  viffore  disturb 
existing  relations;  Dadley  v.  Queen  City 
Camp  No.  27,  W.  O.  W..  1  Tenn.  Ch.  App.  4ia 

Where  a  statute  authorizes  a  beneficial 
association  to  issue  certificates  for  the  bene- 
fit of  certain  enumerated  relatives  or  de- 
pendents, and  a  person  outside  the  speci- 
fied classes  is  named  in  the  certificate,  that 
fact  will  not  avoid  the  right  in  the  fund  of 
the  beneficiaries  designated  by  law;  Royal 
League  v.  Shields,  251  111.  250,  96  N.  E.  45, 
36  I  .  R.  A.  (N.  s.i  208.  A  servant  is  not  a 
dependent;  Grand  Lodge  A.  O.  U.  W.  of  New 
I  Jersey  v.  Gaudy,  G3  N.  J.  Eq.  692,  53  Atl. 
142;  a  mother,  under  certain  facts,  has  been 
'held  not  to  be;  Llsey  v.  Odd  Fellows  Mut. 


BENEFICIAL  ASSOCIATIONS 


336 


BENEFICIAL  ASSOCIATIONS 


Relief  Ass'n,  142  Mass.  224,  7  N.  E.  844  ;  or 
a  brother-;  Supreme  Council  American  Le- 
gion of  Honor  v.  Smith,  45  N.  J.  Eq.  4G6, 
17  Atl.  770 ;  an  adopted  child  may  or  may 
not  be  a  dependent,  and  the  dependency  will 
not  rest  upon  whether  there  h;is  been  a  legal 
adoption:  Murphy  v.  Nowak,  223  111.  301,  79 
X.  E.  112,  7  L.  R.  A.  (N.  S.)  303.  A  person 
who  assisted  a  deceased  member  and  took 
care  of  him  in  his  last  illness  was  held  not 
to  be  a  dependent;  Groth  v.  Central  Verein 
der  Gegenseitigen  Unterstuetzungs  Gesell- 
schaft  Germania,  95  Wis.  140,  70  N.  W.  80; 
a  creditor  is  not;  Shillings  v.  Benefit  Ass'n, 
146  Mass.  217,  15  N.  E.  566;  nor  an  illegiti- 
mate child,  even  though  the  father  had  been 
boarding  with  the  mother  and  paying  there- 
for;. Lavigne  v.  Ligue  des  Patriotes,  178 
Mass.  25,  59  N.  E.  674,  54  L.  R.  A.  814,  86 
Am.  St.  Rep.  460;  Supreme  Tent  of  Knights 
of  Maccabees  of  the  World  v.  McAllister, 
132  Mich.  69,  92  N.  W.  770,  102  Am.  St.  Rep. 
382;  James  v.  Supreme  Council  of  Royal 
Arcanum,  130  Fed.  1014.  Dependency  for 
favor  or  affection  or  companionship  is  held 
to  be  excluded;  Alexander  v.  Parker,  144 
111.  366,  33  N.  E.  1S3,  19  L.  R.  A.  187,  where 
an  affianced  wife  was  held  not  to  be  a 
dependent;  contra,  McCarthy  v.  Supreme 
Lodge,  153  Mass.  314,  26  N.  E.  S66,  11  L.  R. 
A.  144,  25  Am.  St.  Rep.  637. 

It  is  held  in  some  courts  that  a  woman 
is  a  dependent  who  in  good  faith  lives  with 
a  member  in  the  belief  that  she  is  his  wife, 
although  there  is  no  legal  marriage;  Su- 
preme Lodge,  A.  O.  U.  W.,  v.  Hutchinson, 
6  Ind.  App.  399,  33  N.  E.  816 ;  Supreme  Tent 
of  Knights  of  Maccabees  of  the  World  v. 
McAllister,  132  Mich.  69,  92  N.  W.  770,  102 
Am.  St.  Rep.  382 ;  contra,  Severa  v.  Beranak, 
138  Wis.  144,  119  N.  W.  814.  Where  the 
association  has  charter  power  to  pay  sums 
to  the  family  and  heirs  of  deceased  mem- 
bers, a  contract  to  pay  to  his  legal  represen- 
tatives was  construed  to  mean  his  heirs; 
Harton's  Estate,  213  Pa.  499,  62  Atl.  1058, 
4  L  R.  A.  (N.  S.)  939. 

A  failure  to  apportion  the  proceeds  of  a 
benefit  certificate  between  the  beneficiaries 
entitles  one  to  the  entire  sum  upon  the  oth- 
er proving  ineligible  ;  Cunat  v.  Supreme  Tribe 
of  Ben  Hur,  249  111.  448,  94  N.  E.  925,  34 
L.  R.  A.  (N.  S.)  1192,  Ann.  Cas.  1912A,  213. 

For  most  purposes  mutual  benefit  associa- 
tions are  insurance  companies  and  certifi- 
cates issued  by  them  are  policies  of  life  in- 
surance. There  are,  however,  some  essen- 
tial differences,  one  of  which  is  the  power 
on  the  part  of  the  assured  in  mutual  benefit 
associations  to  change  the  beneficiary;  Hol- 
land v.  Taylor,  111  Ind.  121,  12  N.  E.  116. 
In  a  policy  of  life  insurance,  the  beneficiary 
has  a  vested  right.  In  a  benevolent  society 
the  beneficiary  has  no  vested  right  in  the 
certificate  before  the  death  of  the  member; 
Masonic  Benevolent  Ass'n  v.  Bunch,  109  Mo. 
560,  19  S.  W.  25.     The  certificates  of  such 


associations  are  said  to  partake  of  the  na- 
ture of  testamentary  dispositions  of  prop- 
erty; Woodruff  v.  Tilman,  112  Mich.  188,  70 
X.  W.  420.  They  may  be  disposed  of  by 
will  unless  the  rules  of  the  society  prohibit 
it;  Woodruff  v.  Tilman,  112  Mich.  188,  70  X. 
W.  420;  Catholic  Ben.  Ass'n  v.  Priest,  46 
Mich.  429,  9  N.  W.  481;  High  Court  Catholic 
Order  of  Foresters  v.  Malloy,  169  111.  58,  48 
X.  E.  392.  The  member  may  change  the 
beneficiary  without  the  latter's  consent;  Ma- 
sonic Ben.  Ass'n  v.  Bunch,  109  Mo.  560,  19 
S.  W.  25 ;  he  may  change  as  to  a  portion  of 
the  insurance ;  Woodruff  v.  Tilman,  112 
Mich.  188,  70  N.  W.  420;  contra,  McClure  v. 
Johnson,  56  la.  620,  10  N.  W.  217. 

If  the  by-laws  point  out  the  mode  in  which 
the  beneficiary  may  be  changed,  another 
beneficiary  can  be  substituted  only  in  the 
manner  provided,  and  an  attempt  of  the 
member  to  dispose  of  the  fund  by  will  is 
held  ineffectual;  Stewart  v.  Trustees  of  Col- 
lege, 2  Den.  (N.  Y.)  409  (where  the  objection 
was  raised  by  the  society);  Holland  v.  Tay- 
lor, 111  Ind.  121,  12  X.  E.  116;  Stephenson 
v.  Stephenson,  64  la.  534,  21  N.  W.  19;  Mc- 
Carthy v.  Xew  England  Order  of  Protection, 
153  Mass.  314,  26  X.  E.  866,  11  L.  R.  A.  144, 
25  Am.  St.  Rep.  637;  Fink  v.  Fink,  171  N. 
Y.  616,  64  N.  E.  506.  Opposing  this  rule,  it 
is  held  that  such  a  provision  was  for  the 
benefit  of  the  association  which  might  waive 
it  or  insist  upon  it,  and  if  waived  by  the 
association,  the  member  might  change  his 
beneficiary  by  will;  Splawn  v.  Chew,  60  Tex. 
532;  Kepler  v.  Supreme  Lodge,  45  Hun  (X. 
Y.)  274. 

Where  no  method  of  changing  the  bene- 
ficiary is  provided,  a  letter  mailed  to  the 
company  directing  the  payment  to  a  new 
beneficiary  completes  the  change;  Hirschl  v. 
Clark,  81  la.  200,  47  N.  W.  78,  9  L.  R.  A. 
841;  Fink  v.  Mutual  Aid  Society,  57  App. 
Div.  507,  68  X.  Y.  Supp.  SO. 

Such  association  has  power  to  amend  its 
by-laws  so  as  to  increase  the  assessments 
on  its  members,  where  the  existing  rate 
has  proved  inadequate,  under  charter  au- 
thority to  provide  for  the  payment  of  a  cer- 
tain death  benefit  to  be  secured  by  assess- 
ment ;  Reynolds  v.  Supreme  Council  of  Royal 
Arcanum,  192  Mass.  150,  78  X.  E.  129,  7  L. 
R.  A.  (X.  S.)  1154,  7  Ann.  Cas.  776 ;  Gaut  v. 
Life  Ass'n,  121  Fed.  403;  Miller  v.  Xational 
Council  of  Knights  &  Ladies  of  Security,  69 
Kan.  234,  76  Pac.  830 ;  contra,  unless  there 
was  an  express  agreement  that  a  member 
should  be  bound  by  future  by-laws,  varying 
or  modifying  his  contract;  Covenant  Mut. 
Life  Ass'n  of  Illinois  v.  Kentner,  1S8  111. 
431,  58  X.  E.  966;  Pearson  v.  Indemnity  Co., 
114  Mo.  App.  283,  83  S.  W.  588;  Wright  v. 
Knights  of  Maccabees  of  the  World,  48  Misc. 
558,  95  X.  Y.  Supp.  996  (though  the  proposed 
increase  was  necessary  to  keep  the  associa- 
tion solvent).  A  member  cannot  be  assessed 
for  losses  that  occurred  prior  to  his  mem- 


BENEFICIAL  ASSOCIATIONS 


337 


BENEFICIAL  POWER 


bership  unless  he  had  so  agreed;  Clark  v. 
Traveling  Men's  Ass'n  (la.)  135  N.  W.  1114, 
42  L.  R.  A.  (N.  S.)  631;  or  for  the  creation 
of  an  emergency  fund;  id. 

If  ut  the  time  one  becomes  a  member  of  a 
beneficial  order,  its  constitution  and  by-laws 
expressly  reserve  the  right  to  make  amend- 
ments thereto,  he  is  bound  by  a  subsequent 
amendment  injuriously  affecting  him ;  Rob- 
inson v.  Templar  Lodge,  117  Cal.  370,  49  Pac. 
170,  59  Am.  St.  Rep.  193.  Such  an  amend- 
ment must  be  reasonable;  Knights  Templars' 
&  Masons'  Life  Indemnity  Co.  v.  Jarman,  104 
Fed.  638,  44  C.  C.  A.  93;  Modern  Woodmen 
of  America  v.  Wieland,  109  Til.  App.  340; 
Smith  v.  Supreme  Lodge,  83  Mo.  App.  512; 
O'Neill  v.  Supreme  Council,  70  N.  J.  L.  410, 
57  Atl.  463,  1  Ann.  Cas.  422.  The  power  to 
make  it,  not  being  a  power  to  destroy  the 
contract  rights  of  the  members;  Parish  v. 
Produce  Exchange,  169  N.  Y.  34,  61  N.  E. 
977,  56  L.  R.  A.  149;  but  where  it  makes  so 
radical  a  change  as  to  amount  to  a  repudia- 
tion of  a  contract  it  will  be  void ;  Beach  v. 
Supreme  Tent,  177  N.  Y.  100,  69  N.  E.  281. 
The  voluntary  acceptance  of  by  laws  pro- 
viding for  the  imposition  of  coercive  fines 
does  not  make  such  fines  legal  and  the 
standing  threat  of  their  imposition  may  prop- 
erly be  classed  with  the  ordinary  threat  of 
suits  upon  groundless  claims;  Boutwell  v. 
Marr,  71  Vt.  1,  42  Atl.  607,  43  L.  R.  A.  803, 
76  Am.  St.  Rep.  746. 

A  discussion  of  the  effect  of  an  erroneous 
description  of  the  beneficiary  in  a  certificate 
by  Cyrus  J.  Wood.  57  Cent  L.  J.  383,  reaches 
the  conclusion  that  the  courts  are  inclined  to 
take  into  consideration  the  benevolent  charac- 
ter and  purpose  of  these  societies  and,  in  or- 
der to  effectuate  this  purpose,  liberally  con- 
strue by-laws  and  statutes,  giving  a  broad 
interpretation  to  such  terms  as  relatives, 
families  and  dependents,  so  that  one  wrong- 
fully described  as  a  relative  may  obtain  the 
benefit  on  proving  dependency,  and  if  the 
beneficiary  cannot  be  brought  within  the  pre- 
scribed limits,  those  who  are  within  the 
rules  may  receive  the  benefit  as  against  both 
the  insured  and  the  society  since  a  misde- 
scription seems  to  be  ignored  and  the  rights 
of  all  concerned  are  decided  according  to 
the  benevolent  purpose  of  the  society  with 
regard  to  the  real  relation  of  the  appointed 
beneficiary  to  the  deceased.  See  17  Harv. 
L.  Rev.  211. 

See  In  re  Harton's  Estate,  213  Pa.  499,  62 
Atl.  1058,  4  L.  R.  A.  (N.  S.)  939;  Railboad 
Relief  Funds. 

See  Association  ;  Family. 

BENEFICIAL  INTEREST.  Profit,  bene- 
fit, or  advantage  resulting  from  a  contract, 
or  the  ownership  of  an  estate  as  distinct 
from  the  legal  ownership  or  control. 

A  cestui  que  trust  has  the  beneficial  interest  in  a 
trust  estate  while  the  trustee  has  the  legal  estate. 
If  A  makes  a  contract  with  B  to  pay  C  a  sum  of 
money,  C  has  the  beneficial  interest  in  the  contract. 

Bouv.— 22 


BENEFICIAL  POWER.  It  is  used  in 
New  York  and  has  for  its  object  the  donee 
of  the  power,  and  is  to  be  executed  solely 
for  his  beneOt,  in  contradistinction  to   trust 

1,  which  have  for  their  obje 
other  than  the  donee  and  are  to  be  ex< 
solely  for  their  benefit.     Jennings  v.  Couhoy, 
73  N.  Y.  2:'.4. 

BENEFICIAL  SOCIETIES.  See  Benefi- 
cial Associations. 

BENEFICIARY.  A  term  suggested  by 
Judge  Story  as  a  substitute  for  cestui  que 
trust,  and  adopted  to  some  extent.  1  Story. 
Eq.  Jur.  §  321. 

The  person  named  in  a  policy  of  insurance 
to  whom  the  insurance  is  payable  upon  the 
happening  of  the  event  insured  against. 

The  beneficiary  of  a  contract  is  not  a  ces- 
tui que  trust;  12  Harv.  L.  Rev.  564. 

BENEFICIO  PRIM0  (more  fully  hencflcio 
primo  ecclesin.stU-o  habendo).  A  writ  direct- 
ed from  the  king  to  the  chancellor,  com- 
manding him  to  bestow  the  benefice  which 
shall  first  fall  in  the  King's  gift,  above  or 
under  a  certain  value,  upon  a  particular  and 
certain  person.    Reg.  Orig.  307. 

BENEFICIUM  (Lat).  A  portion  of  land 
or  other  immovable  thing  granted  by  a  lord 
to  his  followers  for  their  stipend  or  mainte- 
nance. 

It  originally  meant  a  "benefaction"  from 
the  king,  usually  to  a  noble.  The  analogous 
English  institution  was  the  laen  or  loan ; 
Maitl.  Domesd.    Book  &  Beyond  301. 

In  the  early  feudal  times,  grants  were  made  to 
continue  only  during  the  pleasure  of  the  grantor, 
which  were  called  munera ;  but  soon  afterwards 
these  grants  were  made  for  life,  and  then  they  as- 
sumed the  name  of  beneficia.  Dalrymple,  Feud.  Pr. 
199.  Pomponius  Laetus,  as  cited  by  Hotoman,  De 
Fcudis,  c.  2,  says,  "That  it  was  an  ancient  custom, 
revived  by  the  Emperor  Constantine,  to  give  lands 
and  villas  to  those  generals,  prefects,  and  tribunes 
who  had  grown  old  in  enlarging  the  empire,  to  sup- 
ply their  necessities  as  long  as  they  lived,  which 
they  called  parochial  parishes,  etc.  But  between 
(feuda)  fiefs  or  feuds  and  (parochias)  parishes 
there  was  this  difference,  that  the  latter  were  given 
to  old  men,  veterans,  etc.,  who,  as  they  deserved 
well  of  the  republic,  were  sustained  the  rest  of  their 
life  (publico  beneflcio)  by  the  public  benefaction; 
or,  if  any  war  afterwards  arose,  they  were  called 
out  not  so  much  as  soldiers  as  leaders  (magistri 
militum).  Feuds  (feuda),  on  the  other  hand,  were 
usually  given  to  robust  young  men  who  could  sus- 
tain the  labors  of  war.  In  later  times,  the  word 
parochia  was  appropriated  exclusively  to  ecclesias- 
tical persons,  while  the  word  bencficiiini  (militarc) 
continued  to  be  used  in  reference  to  military  fiefs 
or   fees. 

A   general    term    applied    to    ecclesiastical 
livings.    4  Bla.  Com.  107.    See  Benefice, 
In  Civil   Law.     Any  favor  or  privilege. 

BENEFICIUM  CLERICALE.  Benefit  of 
clergy,   which  see. 

BENEFICIUM        C  0  MPETE  NTI  /E.  In 

Scotch  Law.  The  privilege  of  retaining  a 
competence  helonging  to  the  obligor  in  a 
gratuitous  obligation.     Such  a  claim  consti- 


BENEFICIUM  C0MPETENTI2E 


338 


BENEFIT  OF  CLERGY 


tutes  a  good  defence  in  part  to  an  action  on 
the  bond.     Paterson,  Comp. 

In  Civil  Law.  The  right  which  an  insol- 
vent debtor  had,  among  the  Romans,  on  mak- 
ing cession  of  his  property  for  the  benefit  of 
his  creditors,  to  retain  what  was  required 
for  him  to  live  honestly  according  to  his  con- 
dition.    7  Toullier,  n.  258. 

A  defendant's  privilege  of  being  condemn- 
ed only  in  an  amount  which  he  could  pay 
without  being  reduced  to  a  state  of  destitu- 
tion.    Sand.  Justinian  iv.  vi.  37. 

BENEFICIUM  DIVISION  IS.  See  Bene- 
fit of  Division. 

BENEFICIUM  INVENTARII.  See  Ben- 
i  1 1  l  of  Inventory. 

BENEFICIUM  ORDINIS.  In  Scotch  and 
Civil  Law.  The  privilege  of  the  surety  al- 
lowing him  to  require  that  the  creditor  shall 
take  complete  legal  proceedings  against  the 
debtor  to  exhaust  him  before  he  calls  upon 
the  surety.     1  Bell,  Com.  347. 

BENEFIT.     Profit,  fruit,  or  advantage. 

The  acceptance  of  the  benefits  of  a  con- 
tract estops  a  party  from  denying  its  validi- 
ty ;  City  of  St.  Louis  v.  Davidson,  102  Mo. 
149,  14  S.  W.  825,  22  Am.  St.  Rep.  764; 
Spencer  v.  Jennings,  139  Pa.  198,  21  Atl.  73; 
Wood  v.  Bullard,  151  Mass.  324,  25  N.  E.  67, 
7  L.  R.  A.  304;  Palmerton  v.  Hoop,  131  Ind. 
23.  30  X.  E.  874;  Gladstone  Exch.  Bank  v. 
Keating,  94  Mich.  429,  53  N.-  W.  1110;  St. 
Louis  &  S.  F.  R.  Co.  v.  Foltz,  52  "Fed.  627. 

BENEFIT  ASSOCIATION.  See  Benefi- 
cial Associations. 

BENEFIT  OF  CESSION.  In  Civil  Law. 
The  release  of  a  debtor  from  future  impris- 
onment for  his  debts,  to  which  he  is  entitled 
upon  the  surrender  of  his  property  for  the 
benefit  of  his  creditors.  Pothier,  Proctd.  Civ. 
part  5,  c.  2,  §  1. 

This   was   something    like   a   discharge    under  the 

insolvent    laws,    which    releases    the    person    of  the 

debtor,  but  not  goods  he  acquires  afterwards.  See 
Bankrupt  ;    Cessio   Bonoeum;    Insolvent. 

BENEFIT  OF  CLERGY.  Originally  it 
meant  that  an  ordained  clerk  charged  with 
felony  could  be  tried  only  in  the  Ecclesiasti- 
cal Court.  But,  before  the  end  of  Henry 
III.'s  reign,  the  king's  court,  though  it  de- 
livered him  to  the  Ecclesiastical  Court  for 
trial,  took  a  preliminary  inquest  as  to  his 
guilt  or  innocence.  The  latter  court  tried 
him  by  compurgation.  It  could  sentence  him 
to  degradation,  imprisonment  or  whipping. 
Benefit  of  clergy  did  not  apply  to  treason, 
breach  of  forest  laws,  trespasses  or  misde- 
meanors. In  time  it  changed  and  became  a 
complicated  series  of  rules  exempting  cer- 
tain persons  from  punishment  for  certain 
criminal  offences.  It  was  extended  to  secu- 
lar clerks,  then  to  all  who  could  read.  In 
1705  this  requirement  was  abolished.  Till 
It;; 12  a  woman  commoner  could  not  claim  it. 
By  act  in  1487,  all  persons  except  those  in 


orders  were,  if  convicted  of  a  clergyable  fel- 
ony, branded  and  disabled  from  claiming  the 
privilege  a  second  time.  A  peer,  even  if  he 
could  not  read,  had  the  privilege  (1547). 
By  act  in  1717,  persons  (not  peers  or  clerks 
in  orders)  were  if  convicted  of  clergyable 
larcenies  transported  for  7  years.  Gradual- 
ly the  number  of  non-clergyable  offences  was 
increased  and  new  offences,  when  created, 
were  made  non-clergyable.  It  was  abolished 
in  England  in  1827.    1  Holdsw.  H.  E.  L.  381. 

Kelyng  reports,  "At  the  Lent  Assizes  for  Winches- 
ter (18  Car.  II.)  the  clerk  appointed  by  the  bishop 
to  give  clergy  to  the  prisoners,  being  to  give  it  to 
an  old  thief,  I  directed  him  to  deal  clearly  with  me, 
and  not  to  say  legit  in  case  he  could  not  read  ;  and 
thereupon  he  delivered  the  book  to  him,  and  I  per- 
ceived the  prisoner  never  looked  on  the  book  at  all: 
and  yet  the  bishop's  clerk,  upon  the  demand  of 
'legit?  or  non  legit?'  answered  'legit.'  And  \here- 
upon  I  told  him  I  doubted  he  was  mistaken,  and 
had  the  question  again  put  to  him;  whereupon  he 
answered  again,  something  angrily,  'legit.'  Then  I 
bid  the  clerk  of  assizes  not  to  record  it,  and  I  told 
the  parson  that  he  was  not  the  judge  whether  the 
culprit  could  read  or  no,  but  a  ministerial  officer  to 
make  a  true  report  to  the  court;  and  so  I  caused 
the  prisoner  to  be  brought  near,  and  delivered  him 
the  book,  when  he  confessed  that  he  could  not  read. 
Whereupon  I  told  the  parson  that  he  had  unpreach- 
ed  more  that  day  than  he  could  preach  up  again  in 
many  days,  and  I  fined  him  five  marks."  An  in- 
stance of  humanity  is  mentioned  by  Donne,  of  a 
culprit  convicted  of  a  non-clergyable  offence  prompt- 
ing a  convict  for  a  clergyable  one  in  reading  his 
neck-verse.  In  the  very  curious  collection  of  pro- 
legomena to  Coryat's  Crudities  are  commendatory 
lines  by   Inigo  Jones.     The  famous  architect  wrote, 

"Whoever   on   this   book  with   scorn  would   look, 
May  he  at  sessions  crave,  and  want  his  book." 

When  one  who  could  read  had  the  privi- 
lege, it  was  enough  to  read  a  line  in  a  book, 
and  the  same  verse  of  Psalms  li.  1,  was  said 
to  be  used  with  each  prisoner,  called  the 
"neck-verse." 

See  1  Soc.  Engl.  297;  1  P.  &  M.  429;  1 
Stephen  H.  C.  L.  464. 

The  benefit  of  clergy  seems  never  to  have 
been  extended  to  breach  of  forest  laws,  tres- 
pass or  high  treason,  nor  misdemeanors  in- 
ferior to  felony.  In  time  it  became  a  com- 
plicated series  of  rules  exempting  certain 
persons  from  punishment  for  certain  crimi- 
nal offences.  It  has  been  usually  acknowl- 
edged as  belonging  to  the  common  law  of 
most  of  the  United  States;  1  Bish.  Cr.  L. 
938.  See  1  Chit.  Cr.  L  667;  4  Bla.  Com.  ch. 
28 ;  1  Bish.  Cr.  Law  §  936. 

By  act;  of  congress  of  April  30,  1790,  R.  S. 
§  5329,  the  benefit  of  clergy  shall  not  be  used 
or  allowed  upon  conviction  of  any  crime  for 
which  the  punishment  is  death.  Repealed 
by  act  of  March  4,  1909 ;  apparently  the  doc- 
trine thus  becomes  obsolete. 

See  Buening  in  the  Hand. 

BENEFIT  OF  DISCUSSION.  The  right 
which  a  surety  has  to  cause  the  property  of 
the  principal  debtor  to  be  applied  in  satis- 
faction of  the  obligation  in  the  first  instance. 
La.  Civ.  Code,  art.  3014.  See  Benefice  de 
Discussion. 


li;m;fit  of  division 


339 


BESOT 


BENEFIT  OF  DIVISION.  In  Civil  Law. 
The  right  of  one  of  several  joint  sureties, 
when  sued  alone,  to  have  the  whole  obliga- 
tion apportioned  amongst  the  solvent  sure- 
ties, so  that  he  need  pay  but  his  share.  La. 
Civ.  Code,  arts.  3014-3020. 

BENEFIT  OF  INVENTORY.  In  Civil  Law. 
The  privilege  which  the  heir  obtains  of  be- 
ing liable  for  the  charges  and  debts  of  the 
succession,  only  to  the  value  of  the  effects 
of  the  succession,  by  causing  an  inventory 
of  these  effects  within  the  time  and  manner 
prescribed  by  law.  La.  Civ.  Code,  art.  1025; 
Pothier,  des  Success,  c.  3,  s.  3,  a.  2.  See 
Spence,  Eq.  Jurisd.  585.  See  also  Paterson, 
Conip.  as  to  the  Scotch  law. 

BENERETH.  A  service  which  the  tenant 
rendered  to  his  lord  with  his  plow  and  cart. 
Cowell. 

BENEVOLENCE.  A  voluntary  gratuity 
given  by  the  subjects  to  the  king.    Cowell. 

Benevolences  were  first  granted  to  Edward  IV.; 
but  under  subsequent  monarchs  they  became  any- 
thing but  voluntary  gifts,  and  by  the  Petition  of 
Rights  (3  Car.  I.)  no  benevolence  shall  be  extorted 
without  the  consent  of  parliament.  The  illegal 
claim  and  collection  of  these  benevolences  was  one 
of  the  prominently  alleged  causes  of  the  rebellion 
of  1640.    1  Bla.  Com.  140  ;    4  id.  436. 

The  love  of  humanity;  the  desire  to  pro- 
mote its  prosperity  or  happiness.  When 
used  in  a  bequest  with  charity,  it  is  synony- 
mous. Saltonstall  v.  Sanders,  11  Allen 
(Mass.)   44G.     See  Charitable  Uses. 

BENEVOLENTIA   REGIS    HABENDA. 

The  form  in  ancient  fines  and  submissions 
to  purchase  the  king's  pardon  and  favor  in 
order  to  be  restored  to  place,  title  or  estate. 
Paroch.  Antiq.  172. 

BEN  HURST.  In  Berkshire,  a  remedy  for 
the  inhabitants  thereof  to  levy  money  recov- 
ered against  them  on  the  statute  of  hue  and 
cry.     39  Eliz.  c.  25. 

BEQUEATH.  To  give  personal  property 
by  will  to  another.  Lasher  v.  Lasher,  13 
Barb.  (N.  Y.)  106.  The  word  may  be  con- 
strued devise,  so  as  to  pass  real  estate;  Wig- 
ram,  Wills  11 ;  or  devise  and  bequeath ; 
Laing  v.  Barbour,  119  Mass.  525;  Dow  v. 
Dow,  36  Me.  216 ;  Lasher  v.  Lasher,  13  Barb. 
(N.  Y.)   109.     See  Legacy. 

BEQUEST.  A  gift  by  will  of  personal 
property.     See  Legacy. 

BERTILL0N  SYSTEM.  See  Anthropom- 
etry. 

BESAILE,  BESAYLE.  The  great-grand- 
father, proavus.     1  Bla.  Com.  180. 

BESIDES.  In  addition  to;  moreover.  In 
provisions  in  a  will  for  children  "besides" 
an  eldest  son,  no  children  take  unless  there 
be  a  son  ;   4  Dr.  &  War.  235. 

BESOT.  To  stupefy,  to  make  dull  or 
senseless,  to  make  to   dote;    and  "to  dote" 


is   to  he  delirious,    sill   or  insane.     Gal 
Meredith,  7  Ind.  441. 

BEST.     Of    the    highest    quality.      Of    the 
greatest  usefulness  for  the  purpose  bib 
Where   one    covenants  to   use    his    best   en- 
deavors, there  is  no  breach  if  he  is  pr< 
ed  by  causes  wholly  beyond  bis  control  and 
without   any  default   on    his    part;     T    H.   & 
N.  t)_\    A  contract  to  erect  a  building  of  the 
best  lumber  means  the  best  lumber  of  ■ 
buildings  are  ordinarily  constructed  al 
place :    Mclmire  v.  Barnes,  l  Col. 

BEST    EVIDENCE.     The  best  evidence  of 
which  the  nature  of  the  case  admits,  n 
highest  or  strongest  evidence  which  the  na- 
ture of  the  thing   to  he  proved   admits  of: 
e.  g.  a  copy  of  a  deed  is  not  the  best  evi- 
dence:   the  deed  itself  is  better.     1  Greenl. 
Ev.,  Lewis's  ed.  g  82;    State   v.   m  : 
65  Me.  467:    Tayloe  v.  Riggs,  1  Pet.  (1 
591,  7  L.  Ed.  275;   Whitehead  v.  School  Disk, 
145  Pa.  418.  -1-1  Atl.  991;   15  Q.  B. 

The  rule  requiring  the  best  evid  ace  to 
be  produced  is  to  be  understood  of  the  best 
legal  evidence;  Gray  v.  Pentland,  2  S.  &  EL 
(Pa.)  34;  3  Bla.  Com.  3GS,  n.  10,  by  Chris- 
tian. It  is  relaxed  in  some  cases,  as  where 
the  words  or  the  act  of  the  opposite  party 
avow  the  fact  to  be  proved.  A  tavern-keep- 
er's sign  avows  his  occupation ;  taking  of 
tithes  avows  the  clerical  character ;  Cum- 
mim  v.  Smith,  2  S.  &  R.  (Pa.)  440 ;  1  Saund. 
PI.  49. 

Letterpress  copies  of  letters  are  the 
secondary  evidence  of  their  contents;  Ford 
v.  Cunningham,  87  Cal.  209,  25  Pac.  403. 
Where  a  note  and  the  deed  of  trust  given  to 
secure  it  differ  in  describing  the  payee  of 
the  note,  the  note  will  prevail  as  evidence 
over  the  deed  of  trust ;  Magee  v.  Burch,  10S 
Mo.  336,  IS  S.  W.  1078. 

Prof.  Thayer  (Evid.  484)  treats  the  sub- 
ject and  expresses  the  opinion  that  this 
phraseology  tends  to  confusion ;  though  ad- 
mitting that  in  the  earlier  days  it  may  have 
been  useful  and  may  become  so  again  as  the 
discretion  of  the  courts  is  enlarged.  He  pre- 
fers "primary"  and  "secondary."     Id.  505. 

BESTIALITY.  A  sexual  connection  be- 
tween  a  human  being  and  a  brute  of  the 
opposite  sex.  Buggery  seems  to  include 
both  sodomy  and  bestiality;  Ausman  v.  Veal, 
10  Ind.  356,  71  Am.  Dec.  331.    See  Sodomy. 

BETR0THMENT.  BETROTHAL.  A  con- 
tract between  a  man  and  a  woman  by  which 
they  agree  that  at  a  future  time  they  will 
marry  together. 

The  contract  must  be  mutual;  the  prom- 
ise of  the  one  must  be  the  consideration 
for  the  promise  of  the  other.  It  must  be 
obligatory  on  both  parties  at  the  same  in- 
stant, so  that  each  may  have  an  action  upon 
it.  or  it  will  bind  neither ;  1  Freem.  95 ;  3 
Kebl.  14S;   Co.  Litt.  79  a,  b. 


BETROTHMENT,  BETROTHAL 


340 


BETTING 


The  parties  must  be  able  to  contract.  If 
either  be  married  at  the  time  of  betroth- 
ment,  the  contract  is  void ;  but  the  married 
party  cannot  take  advantage  of  his  own 
wrong,  and  set  up  a  marriage  or  previous 
engagement  as  an  answer  to  the  action  for 
the  breach  of  the  contract,  because  this 
disability  proceeds  from  the  defendant's  own 
act;  1  Ld.  Raym.  387;  3  Inst.  89;  1  Sid. 
112 ;    1  Bla.  Com.  432. 

The  performance  of  this  contract,  or  the 
completion  of  the  marriage,  must  be  ac- 
complished within  a  reasonable  time.  Ei- 
ther party  may,  therefore,  call  upon  the 
other  to  fulfil  the  engagement,  and,  in  case 
of  refusal  or  neglect  to  do  so  within  a  rea- 
sonable time  after  request  made,  may  treat 
the  betrothment  as  at  an  end,  and  bring 
action  for  the  breach  of  the  contract;  2  C. 
&  P.  631.  For  a  breach  of  the  betrothment 
without  a  just  cause,  an  action  on  the  case 
may  be  maintained  for  the  recovery  of  dam- 
ages.  It  may  be  maintained  by  either  party; 
1  Salk.  24. 

In  Anglo-Saxon  times  the  betrothal  was 
between  the  bridegroom  and  the  woman's 
father  or  other  protector;  2  Poll.  &  Maitl. 
H.  E.  L.  365. 

In  Germany  and  Holland  a  party  could 
be  compelled  to  complete  his  contract.  See 
Promise  of  Marriage.  As  to  the  Roman 
Law,  see  Bryce,  Studies  in  History. 

BETTER  EQUITY.  The  right  which,  in  a 
court  of  equity,  a  second  incumbrancer  has 
who  has  taken  securities  against  subsequent 
dealings  to  his  prejudice,  which  a  prior  in- 
cumbrancer neglected  to  take  although  he 
had  an  opportunity.  1  Chanc.  Prec.  470,  n. ; 
Oliver  v.  Oliver,  4  Rawle  (Pa.)  144,  26  Am. 
Dec.  123. 

BETTERMENTS.  Improvements  made  to 
an  estate.  It  signifies  such  improvements  as 
render  it  better  than  mere  repairs.  Mad- 
docks  v.  Jellison,  11  Me.  482 ;  Davis'  Lessee 
v.  Powell,  13  Ohio,  30S;  M'Kinly  v.  Holli- 
day,  10  Yerg.  (Tenn.)  477 ;  Thompson  v.  Gil- 
man,  17  Vt.  109.  The  term  is  also  applied 
to  denote  the  additional  value  which  an  es- 
tate acquires  in  consequence  of  some  public 
improvement,  as  laying  out  or  widening  a 
street,  etc. 

The  measure  of  the  value  of  betterments 
is  not  their  actual  cost,  but  the  enhanced 
value  they  impart  to  the  land,  without  ref- 
erence to  the  fact  that  they  were  not  de- 
sired by  the  true  owner  or  could  not  profit- 
ably be  used  by  him ;  Carolina  Cent.  R.  Co. 
v.  McCaskill,  98  N.  C.  526,  4  S.  E.  468. 

BETTING.  The  act  of  making  a  wager; 
a  species  of  gambling. 

A  bet  or  wager  is  ordinarily  an  agreement 
between  two  or  more  that  a  sum  of  money 
or  some  valuable  thing,  in  contributing 
which  those  agreeing  take  part,  shall  become 
the  property  of  one  or  some  of  them,  on  the 


happening  in  the  future  of  an  event  at  the 
present  uncertain;  Harris  v.  White,  81  N.  Y. 
539.     See  Gaming. 

BETWEEN.  In  the  intermediate  space  of, 
without  regard  to  distance;  from  one  to 
another ;  belonging  to  two  as  a  mutual  re- 
lation. 

The  words  "between  A.  &  B."  In  a  deed 
excludes  the  termini  mentioned  therein  ;  Re- 
vere v.  Leonard,  1  Mass.  93,  but  see  Morris 
&  E.  R.  Co.  v.  R.  Co.,  31  N.  J.  L.  212.  Be- 
tween two  places  is  held  to  exclude  both ;  8 
C.  &  P.  612. 

"Between"  when  properly  predicable  of 
time  is  intermediate.  "Between  two  days" 
was  held  exclusive  of  both ;  Bunce  v.  Reed, 
16  Barb.  (N.  Y.)  352.  See  Robinson  v.  Fos- 
ter, 12  la.  1S6.  A  testamentary  gift  to  two 
or  more  between  or  amongst  them  creates  a 
tenancy  in  common ;  2  Mer.  70.  It  is  often 
synonymous  with  among;  Myres  v.  Myres, 
23  How.  Pr.  (N.  Y.)  415.  When  between  and 
among  follow  the  verb  divide,  the  general 
signification  is  very  similar  and  in  popular 
use  they  are  synonymous;  Senger  v.  Seng- 
er's  Ex'r,  81  Va.  698. 

BEYOND  SEAS.  Out  of  the  kingdom  of 
England ;  out  of  the  state ;  out  of  the  Unit- 
ed States.  "Beyond  seas"  means,  generally, 
without  the  jurisdiction  of  the  state  or  gov- 
ernment in  which  the  question  arises; 
32  E.  L.  &  Eq.  84;  Forbes'  Adm'r  v.  Foot's 
Adm'r,  2  McCord  (S.  C.)  331,  13  Am.  Dec. 
732;  Galusha  v.  Cobleigh,  13  N.  H.  79; 
Hatch  v.  Spofford,  24  Conn.  432. 

It  means  "out  of  the  United  States;" 
Thurston  v.  Fisher,  9  S.  &  R.  (Pa.)  288; 
Earle  v.  McDowell,  12  N.  C.  16;  Davie  v. 
Briggs,  97  U.  S.  638,  24  L.  Ed.  10S6;  Kee- 
ton's  Heirs  v.  Keeton's  Adm'r,  20  Mo.  530; 
Darling  v.  Meachum,  2  G.  Greene  (la.)  602. 
Other  cases  hold  that  it  means  out  of  the 
state;  Byrne  v.  Crowninshield,  1  Pick.  (Mass.) 
263 ;  Pancoast's  Lessee  v.  Addison,  1  Harr.  & 
.7.  (Md.)  350,  2  Am.  Dec.  520 ;  Forbes'  Adm'r  v. 
Foote's  Adm'r,  2  McCord  (S.  C.)  331,  13  Am. 
Dec.  732;  Mansell's  Adm'r  v.  Israel,  3  Bibb 
(Ky.)  510;  Houston  v.  Moore,  3  Wheat.  (U. 
S.)  433,  4  L.  Ed.  428 ;  Galusha  v.  Cobleigh, 
13  N.  H.  86;  Stephenson  v.  Doe,  8  Blackf. 
(Ind.)  515,  46  Am.  Dec.  489;  Richardson's 
Adm'rs  v.  Richardson's  Adm'rs,  6  Ohio,  126, 
25  Am.  Dec.  745;  Thomason  v.  Odum,  23 
Ala.  486;  Wakefield  v.  Smart,  8  Ark.  489. 
See  also  Sleght  v.  Kane,  1  Johns.  Cas.  (N. 
Y.)  76;  and  to  this  effect  is  the  very  uni- 
form current  of  authorities. 

In  the  various  statutes  of  limitation  the 
term  "out  of  the  state"  is  now  generally 
used.  And  the  United  States  courts  adopt 
and  follow  the  decisions  of  the  respective 
states  upon  the  interpretation  of  their  re- 
spective laws;  Shelby  v.  Guy,  11  Wheat. 
(U.  S.)  361,  6  L.  Ed.  495.  What  consti- 
tutes  absence   out  of  the  state   within  the 


BEYOND  SEAS 


341 


BICYCLE 


meaning  of  the  statute  is  wholly  undetermin- 
able by  any  rule  to  be  drawn  from  the  de- 
cisions. It  seems  to  be  agreed  that  tempo- 
rary absence  is  not  enough;  but  what  is  a 
temporary  absence  is  by  no  means  agreed; 
Ang.  Lim.  §  200,  n.  Any  place  in  Ireland 
was  held  to  be  "beyond  the  sea,"  under  21 
Jac.  I.  c.  16 ;  Show.  91 ;  but  this  is  chang- 
ed by  stat.  3  &  4  William  IV.  c.  27.  which 
enacted  that  no  part  of  the  United  Kingdom 
of  Great  Britain  and  Ireland,  nor  of  the 
Channel  Islands,  should  be  deemed  to  be 
beyond  seas  within  the  meaning  of  the  acts 
of  limitation. 

BIAS.  A  particular  influential  power 
which  sways  the  judgment;  the  inclination 
or  propensity  of  the  mind  towards  a  partic- 
ular object;  adopted  in  Willis  v.  State,  12 
Ga.  449. 

Justice  requires  that  the  judge  should 
have  no  bias  for  or  against  any  individual. 
and  that  his  mind  should  be  perfectly  free 
to  act  as  the  law  requires. 

There  is,  however,  one  kind  of  bias  which 
the  courts  suffer  to  influence  them  in  their 
judgments:  it  is  a  bias  favorable  to  a  class 
of  cases,  or  persons,  as  distinguished  from 
an  individual  case  or  person.  A  few  ex- 
amples will  explain  this.  A  bias  is  felt  on 
account  of  convenience ;  1  Ves.  Sen.  13 ;  3 
Atk.  524.  It  is  also  felt  in  favor  of  the  heir 
at  law,  as  when  there  is  an  heir  on  one 
side  and  a  mere  volunteer  on  the  other ;  1 
W.  Bla.  256;  1  Ball  &  B.  309;  1  Wils.  310. 
On  the  other  hand,  the  court  leans  against 
double  portions  for  children;  13  Price  599; 
against  double  provisions,  and  double  satis- 
factions;  3  Atk.  421;  and  against  forfei- 
tures ;    3  Term  172. 

BIBLE.     See  Schools;  Family  Bible. 

BICAMERAL  SYSTEM.  A  term  applied 
by  Jeremy  Bentham  to  the  division  of  a  leg- 
islative body  into  two  chambers,  as  in  the 
United   States  government. 

BICYCLE.  A  two-wheeled  vehicle  propel- 
led by  the  rider. 

To  ride  a  bicycle  in  the  ordinary  manner 
on  a  public  highway  for  convenience,  pleas- 
ure, or  business  is  lawful.  A  person  driving 
a  horse  thereon  has  no  rights  superior  to  a 
person  riding  a  bicycle ;  Thompson  v.  Dodge, 
5S  Minn.  555,  60  N.  W.  545,  28  L.  R.  A.  608, 
49  Am.  St.  Rep.  503. 

It  has  been  held  that  an  ordinance  which 
attempts  to  forbid  bicyclists  to  use  that  part 
of  the  street  which  is  devoted  to  the  use  of 
vehicles  is  void  as  against  common  right ; 
Swift  v.  City  of  Topeka,  43  Kan.  671,  23 
Pac.  1075,  8  L.  R,  A.  772;  City  of  Emporia 
v.  Wagoner,  6  Kan.  App.  659,  49  Pac.  701; 
but  see  Twilley  v.  Perkins,  77  Md.  252,  26 
Atl.  2S6,  19  L.  R.  A.  632,  39  Am.  St  Rep. 
408. 

Their  proper  place  is  the  roadway  rather 


than  the  sidewalk;  State  v.  Collins,  16  R. 
I.  371,  17  Atl.  131,  3  L.  R.  A.  394;  and  stat- 
utes and  ordinances  in  some  states  declare 
tiieir  use  upon  sidewalks  unlawful;  l 
v.  Forrest,  170  Pa.  40.  32  At!.  652,  l".»  l.  i;. 
A.  365;  Mercer  v.  Corbin,  117  Ind.  -C 
N.  E.  132,  3  L.  R.  A.  221,  10  Am.  St.  Rep.  7(5. 
It  has  been  held  that,  even  in  the 
an  ordinance  prohibiting  it,  one  riding  a  bi- 
cycle upon  a  sidewalk  takes  the  risk  of  any 
injury  he  may  thereby  cause  to  pedestrians; 
Fielder  v.  Tipton,  119  Ala.  608,  1U  South. 
9S5,  8  L.  R.  A.  (X.  S.)  1268,  123  Am.  Sr. 
Rep.  69,  13  Ann.  Cas.  1012;  and  that  per- 
mission under  municipal  ordinance  is  not 
justification  for  violating  a  statute  prohibit- 
ing riding  a  bicycle  on  a  sidewalk ;  Millett 
v.  City  of  Princeton,  107  Ind.  5S2,  79  N.  EL 
909,  10  L.  R.  A.  (X.  S.i  785.  A  municipal 
corporation,  however,  is  not  liable  for  in- 
jury to  a  person  struck  by  a  bicycle  ridden 
by  another  on  a  sidewalk  because  of  failure 
to  enact  or  enforce  an  ordinance  prohibitin_r 
the  riding  of  bicycles  on  sidewalks;  Jones  v. 
City  of  Williamsburg.  97  Va.  722,  34  S.  E. 
883,  47  L.  R.  A.  294.  Where  a  rider  was  in- 
jured by  a  defective  sidewalk,  it  was  held 
that  the  use  of  a  bicycle  thereon  was  not 
unlawful  and  that  he  could  recover;  Lee  v. 
City  of  Port  Huron,  128  Mich.  533,  S7  X.  \V. 
637,  55  L.  R.  A.  308. 

Bicycles  may  be  left  standing  in  the  street 
while  the  owner  is  calling  at  a  residence  or 
place  of  business,  as  any  other  vehicle  may : 
Lacey  v.  Winn,  3  D.  R.  (Pa.)  811;  Lacy  v. 
Winn,  4  id.  409.  Whether  a  bicyclist  who 
leaves  his  wheel  standing  against  the  curb- 
stone in  front  of  a  horse  and  wagon  is  neg- 
ligent in  failing  to  ascertain  whether  the 
horse  was  unattended  and  unfastened  is  a 
question  of  fact  for  the  jury;  Wagner  v. 
Milk  Co.,  21  Misc.  62,  46  X.  Y.  Bnpp.  939. 

An  innkeeper  is  liable  for  damages  where 
a  bicycle  belonging  to  a  guest  is  stolen  from 
the  yard  of  the  inn;  2S  Ir.  L.  T.  &  S.  J. 
297.  A  municipality  has  power  to  require 
bicyclists  to  carry  lights  when  using  the 
streets  after  dark;  City  of  Des  Moines  v. 
Keller,.  116  la.  648,  88  X.  W.  827,  "7  L.  K. 
A.  243,  93  Am.  St.  Rep.  26S.  A  person  who 
rides  a  bicycle  without  a  light  or  signal  of 
warning  in  a  public  thoroughfare  at  a  time 
when  objects  can  be  discerned  readily  at  a 
distance  of  but  a  few  feet  is.  as  a  matter  of 
law,  guilty  of  negligence;  Cook  v.  Fogarty, 
103  la.  500,  72  X.  W.  ('.77.  39  I..   K.  A.  -l^s. 

Where  a  statute  declares  that  bicycles  art- 
entitled  to  the  same  rights  and  subject  to 
the  same  restrictions  as  are  prescribed  in 
the  case  of  persons  using  carriages,  the  rider 
of  a  bicycle  must  turn  out  for  a  heavy  ve- 
hicle; Taylor  v.  Traction  Co..  184  Pa.  40". 
40  Atl.  159,  47  L.  K.  A.  289,  following  the 
rule  of  the  road  established  in  earlier  de- 
cisions; P.each  v.  Parmeter.  23  Pa.  196; 
Grier  v.  Sampson,  27  Pa.  1S3 ;  but  see  contra, 


BICYCLE 


342 


BIDDER 


Foote  v.  Produce  Co.,  195  Pa.  100,  45  Atl. 
934,  40  L.  R.  A.  764,  78  Am.  St.  Rep.  S06. 

A  bicyclist  has  a  right  to  insist  that:  the 
highway  shall  be  maintained  in  a  reasonably 
safe  condition  of  repair;  if  not  so  maintain- 
ed the  corporation  is  answerable  for  injury 
to  him  or  his  vehicle ;  Geiger  v.  Turnpike 
Road,  167  Pa.  5S2,  31  Atl.  918,  28  L.  R.  A. 
45S.  Though,  on  an  ordinary  country  road, 
he  is  exposed  to  greater  danger  than  a  per- 
son in  a  vehicle  drawn  by  horses,  the  com- 
missioners of  highways  are  not  bound  to  any 
higher  obligation  to  him,  but  only  to  main- 
tain such  road  in  reasonably  safe  condition; 
Sutphen  v.  Town  of  North  Hempstead,  80 
Hun  400,  30  N.  Y.  Supp.  128;  Fox  v.  Clarke, 
25  R.  I.  515,  57  Atl.  305,  65  L.  R.  A.  234, 
1  Ann.  Cas.  54S. 

Bicycles  are  carriages  under  the  tariff 
act;  Adams,  Tariff  99;  so  for  the  purpose 
of  collecting  tolls;  Geiger  v.  Turnpike  Road, 
167  Pa.  582,  31  Atl.  91S,  28  L.  R.  A.  45S ;  and 
under  an  act  forbidding  furiously  driving  a 
carriage ;  L.  R.  4  Q.  B.  Div.  22S ;  and  an  act 
requiring  carriages  to  turn  to  the  right; 
State  v.  Collins,  16  R.  I.  371,  17  Atl.  131,  3 
L.  R.  A.  394.  But  in  Glouchester  &  Salem 
Turnpike  Co.  v.  Leppe,  62  N.  J.  L.  92,  40 
Atl.  681,  41  L.  R.  A.  457,  they  were  held 
not  liable  to  tolls  as  "carriages  of  burthen 
or  pleasure."  They  were  held  not  to  be 
within  an  act  of  17S6,  requiring  highways  to 
be  kept  reasonably  safe  for  carriages ;  Rich- 
ardson v.  Danvers,  176  Mass.  413,  57  IS.  E. 
6S8,  50  L.  R.  A.  127,  79  Am.  St.  Rep.  320; 
to  the  same  effect  under  an  eaxdy  act  in 
Fox  v.  Clarke,  25  R.  I.  515,  57  Atl.  305,  65 
L.  R.  A.  234,  1  Ann.  Cas.  548. 

As  to  bicycles  as  baggage,  see  Baggage. 

BID.  An  offer  to  pay  a  specified  price  for 
an  article  about  to  be  sold  at  auction. 

An  offer  to  perform  a  contract  for  work 
and  labor  or  supplying  materials  at  a  speci- 
fied price. 

BIDDER.  One  who  offers  to  pay  a  speci- 
fied price  for  an  article  offered  for  sale  at 
a  public  auction.  Webster  v.  French,  11  111. 
254 ; .  one  who  offers  to  enter  into  a  con- 
tract for  work  and  labor,  or  supplying  ma- 
terials at  a  specified  price. 

The  bidder  at  an  auction  has  a  right  to 
withdraw  his  bid  expressly  at  any  time  be- 
fore it  is  accepted,  which  acceptance  is  gen- 
erally manifested  by  the  fall  of  the  hammer; 
Benj.  Sales  50,  73;  3  Term  148;  Doolin  v. 
Ward,  6  Johns.  (N.  I.)  104;  Bab.  Auct.  30, 
42;  Blossom  v.  R.  Co.,  3  Wall.  (U.  S.)  196, 
18  L.  Ed.  43 ;  Coker  v.  Dawkins,  20  Fla.  153 ; 
Nebraska  Loan  &  Trust  Co.  v.  Hamer,  40 
Neb.  293,  5S  N.  W.  695;  or  the  bid  may  be 
withdrawn  by  implication,  as  by  an  adjourn- 
ment of  the  sale  before  the  article  under 
the  hammer  is  knocked  down ;  Faunce  v. 
Sedgwick,  8  Pa.  40S. 

The  bidder  is  required  to  act  in  good  faith, 
and  any  combination  between  him  and  oth- 


ers, to  prevent  a  fair  competition,  would 
avoid  the  sale  made  to  himself;  3  B.  &  B. 
11G;  Martin  v.  Ranlett,  5  Rich.  (S.  C.)  541, 
57  Am.  Dec.  770;  Barnes  v.  Mays,  88  Ga. 
606,  16  S.  E.  67;  Towle  v.  Leavitt,  23  N.  H. 
3G0,  55  Am.  Dec.  105;  Veazie  v.  Williams,  8 
How.  (U.  S.)  134,  12  L.  Ed.  1018.  But  there 
is  nothing  illegal  in  two  or  more  persons 
agreeing  together  to  purchase  a  property  at 
sheriff's  sale,  fixing  a  certain  price  which 
they  are  willing  to  give,  and  appointing  one 
of  their  number  to  be  the  bidder ;  Smull  v. 
Jones,  6  W.  &  S.  (Pa.)  122;  National  Fire 
Ins.  Co.  v.  Loomis,  11  Paige  Ch.  (N.  Y.)  431 ; 
Kearney  v.  Taylor,  15  How.  (U.  S.)  494,  14 
L.  Ed.  7S7;  Veazie  v.  Williams,  3  Sto.  623, 
Fed.  Cas.  No.  16,907.  See  Auction;  Auc- 
tioneer. 

The  writ  of  mandamus  will  not  lie  to  com- 
pel city  authorities  to  award  a  contract  to 
the  lowest  bidder,  where,  in  the  exercise  of 
their  discretion,  they  have  decided  that  the 
faithful  performance  of  the  contract  requires 
judgment  and  skill  which  he  does  not  pos- 
sess, notwithstanding  his  ability  to  furnish 
good  security ;  Com.  v.  Mitchell,  82  Pa.  343. 

BIENNIALLY.  In  a  statute  this  term  sig- 
nifies not  duration  of  time,  but  a  period  for 
the  happening  of  an  event;  People  v.  Tre- 
main,  9  Hun  (N.  Y.)  573.  In  most  of  the 
states  legislative  sessions  occur  biennially ; 
that  is,  once  in  two  years. 

BIENS  (Fr.  goods).  Property  of  every 
description,  except  estates  of  freehold  and 
inheritance.  Sugd.  Vend.  495;  Co.  Litt.  119 
b;  Dane,  Abr. 

In  the  French  law,  this  term  includes  all  kinds  of 
property,  real  and  personal.  Biens  are  divided  into 
biens  meubles,  movable  property;  and  biens  immeu- 
bles,  immovable  property.  The  distinction  between 
movable  and  immovable  property  is  recognized  by 
them,  and  gives  rise,  in  the  civil  as  well  as  in  the 
common  law,  to  many  important  distinctions  as  to 
rights  and  remedies.  Story,  Confl.  Laws,  §  13, 
note  1. 

Tons  les  biens  means  in  French  law  "all 
the  property,  and  must  therefore  be  accepted 
as  including  both  real  and  personal  estate" ; 
Lindsay  v.  Wilson,  103  Md.  252,  63  Atl.  566, 
2  L.  R.  A.  (N.  S.)  408. 

In  Eddy  v.  Davis,  35  Vt.  247,  it  was  held 
that  Mens,  goods,"  includes  both  animate  and 
inanimate  movable  property,  citing  Co.  Litt. 
118  b,  to  the  effect  that  "Mens,  bona,"  are 
words  which  include  all  chattels,  as  well 
real  as  personal,  and  adding:  "In  this  sense 
the  word  goods  is  used  in  the  ancient  and 
well  known  form  of  the  solemnization  of 
matrimony  contained  in  the  Book  of  Com- 
mon Prayer:  *  *  *  'With  all  my  worldly 
goods  I  thee  endow.' " 

In  biens,  real  estate  is  included  "in  the 
sense  of  the  civilians  and  continental  ju- 
rists"; Adams  v.  Akerlund,  168  111.  632,  48 
N.  E.  454;  Sto.  Confl.  L.  §§  13,  146. 

BIG  AM  US.     In    Civil    Law.     One   who  had 

been  twice  married,  whether  both  wives  were 


BIGAMUS 


343 


BIGAMY 


alive  at  the  same  time  or  not.    One  who  had 
married  a  widow. 

Used  in  ecclesiastical  matters  as  a  reason  for  de- 
nying benefit  of  the  clergy.    Termes  de  la  Ley. 

BIGAMY.  The  state  of  a  man  who  has 
two  wives,  or  of  a  woman  who  has  two  hus- 
bands, living  at  the  same  time. 

When  the  man  has  more  than  two  wives,  or  the 
woman  more  than  two  husbands,  living  at  the  same 
time,  then  the  party  is  said  to  have  committed 
polygamy;  but  the  name  of  bigamy  is  more  fre- 
quently given  to  this  offence  in  legal  proceedings. 
1  Russell,  Cr.  187. 

According  to  the  canonists,  bigamy  Is  threefold, 
viz.:  (vera,  interpretative,  et  similitudinaria)  real, 
interpretative,  and  similitudinary.  The  first  con- 
sisted In  marrying  two  wives  successively  (virgins 
they  may  be),  or  in  once  marrying  a  widow  ;  the 
second  consisted,  not  in  a  repeated  marriage,  but  in 
marrying  e.  g.  merctricem  vel  ab  alio  corruptam,  a 
harlot;  the  third  arose  from  two  marriages,  indeed, 
but  the  one  metaphorical  or  spiritual,  the  other  car- 
nal. This  last  was  confined  to  persons  initiated  in 
sacred  orders,  or  under  the  vow  of  continence.  De- 
ferriere's  Tract.  Juris  Canon,  tit  xxi.  See  also 
Bacon,  Abr.  Marriage. 

In  England  this  crime  was  punishable  by 
the  stat.  24  &  25  Viet.  c.  100,  §  57,  which 
made  the  offence  felony;  but  it  exempted 
from  punishment  the  party  whose  husband 
or  wife  should  continue  to  remain  absent  for 
seven  years  before  the  second  marriage  with- 
out being  heard  from,  and  persons  who  had 
been  legally  divorced.  The  statutory  provi- 
sions in  the  United  States  against  bigamy 
or  polygamy  are  in  general  similar  to,  and 
copied  from,  the  statute  of  1  Jac.  I.  c.  11, 
which  was  supplied  by  the  act  of  24  &  25 
Vict.  c.  100,  excepting  as  to  the  punishment. 
The  several  exceptions  to  this  statute  are 
also  nearly  the  same  in  the  American  stat- 
utes; but  the  punishment  of  the  offence  is 
different  in  many  of  the  states;  2  Kent  G9. 
Bigamy  and  polygamy  are  crimes  by  the 
laws  of  all  civilized  and  Christian  countries, 
and  the  First  Amendment  to  the  constitution 
declaring  that  congress  shall  make  no  law 
respecting  the  establishment  of  religion  or 
forbidding  the  free  exercise  thereof,  was 
never  intended  to  be  a  protection  against 
legislation  for  the  punishment  of  such 
crimes;  Davis  v.  Beason,  133  U.  S.  333,  10 
Sup.  Ct.  299,  33  L.  Ed.  637.  It  is  no  defence 
•  that  polygamy  is  a  religious  belief;  U.  S. 
v.  Reynolds.  1  Utah  226;  Reynolds  v.  U.  S., 
98  U.  S.  145,  25  L.  Ed.  244. 

The  act  of  March  22,  1882,  creates  a  new 
and  distinct  offence  from  bigamy  or  polyga- 
my, one  which  is  declared  to  be  a  misde- 
meanor (there  having  been  and  being  no  such 
declaration  as  to  bigamy  and  polygamy),  and 
the  punishment  is  much  less  than  for  bigamy 
and  polygamy.  It  is  the  offence  of  cohabit- 
ing with  more  than  one  woman;  Snow  v.  U. 
S.,  118  U.  S.  346,  6  Sup.  Ct.  1039,  30  L.  Ed. 
207. 

It  is  no  defence  that  the  accused  believed 
his  former  marriage  was  annulled,  when  the 
statute  merely  defines  the  offence  as  marry- 
ing again  where  a  former  spouse  is  living ; 


State  v.  Zichfeld,  23  Xev.  304,  46  Fac.  802, 
34  L.  R.  A.  784,  62  Am.  St  Rep.  800. 

If  a  woman,  who  has  a  husband  U 
marries  another  person,  she  is  punishable, 
though  her  husband  has  voluntarily  with- 
drawn from  her  and  remained  absent  and 
unheard  of  for  any  term  of  time  less  than 
seven  years,  and  though  she  honestly  be- 
lieves, at  the  time  of  her  second  marriage, 
that  he  is  dead;  Com.  v.  Mash,  7  Mete. 
(.Mass.)  472.  See  a  discussion  of  this 
by  Mr.  Bishop,  in  which  he  dissents  from 
its  ruling,  in  4  So.  L.  J.  (N.  S.i  153;  Clark. 
Cr.  L.  311  Also,  12  Am.  L.  Rev.  471.  The 
same  rule  applies  also  to  the  marriage  of 
the  husband,  where  he  believes  the  wile  to 
be  dead;  Dotson  v.  State,  62  Ala.  141,  34 
Am.  Rep.  2;  DaVis  v.  Com.,  13  Bush  iKy.i 
318.  The  same  rule  now  obtains  in  England, 
after  some  conflict  of  opinion ;  14  Cox  C.  C. 
45;  but  quwrc,  if  her  belief  were  founded 
on  positive  evidence ;  Steph.  Dig.  Cr.  Law, 
art.  34,  n.  9.  On  the  trial  of  a  woman  for 
bigamy  whose  lirst  husband  had  been  ab- 
sent from  her  for  more  than  seven  years,  the 
jury  found  that  they  had  no  evidence  that 
at  the  time  of  her  second  marriage  she  knew 
that  he  was  alive,  but  that  she  had  the 
means  of  acquiring  knowledge  of  that  fact 
had  she  chosen  to  make  use  of  them.  It  was 
held  that  upon  this  finding  the  conviction 
could  not  be  supported;  1  Dearsl.  &  B.  Cr. 
Cas.  98.  If  a  man  is  prosecuted  for  bigamy, 
his  first  wife  cannot  be  called  to  prove  her 
marriage  with  the  defendant;  T.  Raym.  1; 
Williams  v.  State,  44  Ala.  24;  15  Low.  Can. 
J.  21;  nor  it  seems  even  to  prove  that  the 
first  marriage  was  invalid ;  4  Up.  Can.  Q. 
B.  588;  but  see  as  to  this  last  point,  2 
Whart  Cr.  L  §  1709. 

In  a  prosecution  for  bigamy  it  devolves 
on  the  state  to  prove  a  valid  lirst  marriage 
and  that  the  lawful  spouse  of  the  defendant 
was  living  at  the  time  of  the  second  mar- 
riage; Sokel  v.  Feople,  212  111.  238,  72  N.  EL 
382;  State  v.  Kniffen,  44  Wash.  485,  ST  l'ac. 
837,  120  Am.  St.  Rep.  1009,  12  Ann.  Cas. 
113;  McCombs  v.  State,  50  Tex.  Cr.  R.  490. 
99  S.  W.  1017.  9  L.  R.  a.  (N.  S.)  1036,  123 
Am.  St.  Rep.  855,  14  Ann.  Cas.  72.  I 
of  the  death  of  the  former  wife  is  no  defence 
to  a  prosecution  for  bigamy  ;  Cornett  v.  Com.. 
134  Ky.  613,  121  S.  \V.  424,  21  Ann.  ('as. 
399.  The  first  marriage1  may  be  proved  by 
the  admissions  of  the  prisoner;  Miles  v.  U. 
S.,  103  U.  S.  304.  26  L.  Ed.  481.  When  the 
first  marriage  is  proved  to  the  satisfaction 
of  the  court,  the  second  husband  is  admissi- 
ble as  a  witness  for  or  against  the  defend- 
ant; Whart  Cr.  Ev.  §  397;  State  v.  Johnson. 
12  Minn.  476  (Gil.  378),  '.>:;  Am.  Dee.  211: 
1  Dp.  fan.  (Q.  B.)  588;  Miles  v.  U.  S.,  103  U. 
S.  304.  2(5  L.  Ed.  481. 

A  conviction  for  bigamy  has  been  su] 
ed  although   the  person   who   solemnized  the 
marriage   had    not    the    required    authority; 


BIGAMY 


344 


BILL 


Carniichael  v.  State,  12  Ohio  St.  553,  but 
see  Bates  v.  State,  29  Ohio  Cir.  Ct.  Rep. 
189;  20  Harv.  L  Rev.  576.  Admissions  of 
a  prior  marriage  in  a  foreign  country  are 
sufficient  without  proof  of  cohabitation  or 
other  corroborating  circumstances  to  estab- 
lish the  marriage;  estate  v.  Wylde,  110  N.  C. 
500,  15  S.  E.  5. 

Where  the  first  marriage  was  made  abroad, 
it  must  be  shown  to  have  been  valid  where 
made;    People  v.   Lambert,   5   Mich.  349,   72 
Am.  Dec.  49.     When  the  celebration  of  the 
marriage  is  once  shown,  every  fact  neces- 
sary to  its  validity  will  be  presumed  until 
the  contrary  is  shown;  People  v.  Calder,  30 
Mich.  85,  Fleming  v.  People,  27  N.  Y.  329; 
Com.   v.   Kenney,   120  Mass.  387,   where  the 
marriage  was  performed  in  a  foreign  coun- 
try ;  but  see  Weinberg  v.  State,  25  Wis.  370. 
Reputation  and  cohabitation  are  not  suffi- 
cient to  establish  the  fact  of  the  first  mar- 
riage;  Gahagan  v.  People,  1  Park  Cr.  Cas. 
(N.  Y.)  378.     If  the  second  marriage  be  in  a 
foreign   state,   it  is  not  bigamy;    People  v. 
Mosher,  2  Park.  Cr.  Cas.  (N.  Y.)  195;  except 
by  statute;  36  E.  L.  &  Eq.  614.    Where  the 
first  marriage  was  not  performed  according 
to  the  statute  and  there  is  no  evidence  of 
subsequent   cohabitation  of   the  parties  the 
second   marriage   is  not   bigamy;   People  v. 
McQuaid,  85  Mich.  123,  48    N.  W.  161. 
See  Marriage. 

BILAN.  A  book  in  which  bankers,  mer- 
chants, and  traders  write  a  statement  of  all 
they  owe  and  all  that  is  due  to  them.  A  bal- 
ance sheet.  The  term  is  used  in  Louisiana, 
and  is  derived  from  the  French. 

BILATERAL  CONTRACT.  A  contract  in 
which  both  the  contracting  parties  are  bound 
to  fulfill  obligations  reciprocally  towards 
each  other.  Lee.  EUm.  §  781.  See  Con- 
tract ;   Unilateral  Contract  ;   Acceptance. 

BILGED.  The  state  of  a  ship  in  which 
water  is  freely  admitted  through  holes  and 
breaches  made  in  the  planks  of  the  bottom, 
occasioned  by  injuries,  whether  the  ship's 
timbers  are  broken  or  not.  Peele  v.  Ins.  Co., 
3  Mas.  39,  Fed.  Cas.  No.  10,905. 


BILINE.    Collateral. 

Bl  UNGUIS.     Using  two  languages. 
A  term  formerly  applied  to  juries  half  of 
one  nation  and  half  of  another.     Plowd.  2. 

BILL  (Lat  billa).  A  complaint  in  writing 
addressed  to  the  chancellor,  or  judges  of  a 
court  exercising  chancery  jurisdiction. 

Its  office  in  a  chancery  suit  is  the  same  as 
a  declaration  in  an  action  at  law,  a  libel 
in  a  court  of  admiralty,  or  an  allegation  in 
the  spiritual  courts. 

A  bill  formerly  consisted  of  nine  parts, 
which  contained  the  address,  to  the  chancel- 
lor, court,  or  judge  acting  as  such;  the 
names  of  the  plaintiffs  and  their  descrip- 
tions,  but  the  statement  of  the  parties  in 


this  part  of  the  bill  merely  is  not  sufheient; 
2  Ves.  &  B.  327;  the  statement  of  the  plain- 
tiffs case,  called  the  stating  part,  which 
should  contain  a  distinct  though  general 
statement  of  every  material  fact  to  which 
the  plaintiff  means  to  offer  evidence;  1 
Brown,  Ch.  94;  3  P.  Wms.  276;  2  Atk.  96; 
1  Vern.  4S3;  11  Ves.  Ch.  240;  2  Hare  264; 
James  v.  McKernon,  6  Johns.  (N.  Y.)  565; 
Nesmith  v.  Calvert,  1  Woodb.  &  M.  34,  Fed. 
Cas.  No.  10,123;  Story,  Eq.  PI.  §  265  a;  a 
general  charge  of  confederacy;  the  allega- 
tions of  the  defendant's  pretences,  and  charg- 
es in  evidence  of  them;  the  clause  of  juris- 
diction and  an  averment  that  the  acts  com- 
plained of  are  contrary  to  equity;  a  prayer 
that  the  defendant  may  answer  the  inter- 
rogatories, usually  called  the  interrogating 
part;  the  prayer  for  relief;  the  prayer  for 
process;  2  Madd.  166;  Wright  v.  Wright,  8 
N.   J.   Eq.   143;    1   Mitf.   Eq.   PI.   41. 

In  England  and  in  most,  if  not  all,  of  the 
states,  including  those  having  a  separate 
court  of  chancery,  the  formal  style  of  the 
old  English  bill  has  fallen  entirely  into  dis- 
use. The  form  used  and  generally  provided 
for  by  rule  of  court,  is  a  concise  and  con- 
secutive statement  of  the  plaintiff's  case  in 
numbered  paragraphs,  stripped  of  technical 
phrases  and  verbiage,  concluding  with  pray- 
ers, consecutively  numbered,  for  answer,  for 
account,  if  incidental  or  appropriate  to  the 
relief  sought,  for  the  special  relief  sought, 
as  payment  of  sums  found  due,  specific  per- 
formance, etc.,  for  injunction,  if  required, 
for  other  relief,  and  for  process. 

By  Equity  Rule  25  of  the  United  States 
Supreme  Court,  in  effect  February  1,  1913 
(33  Sup.  Ct.  xxv),  a  bill  must  contain  the 
names,  citizenship  and  residence  of  the  par- 
ties (with  their  disabilities,  if  any) ;  a  short 
and  plain  statement  of  the  grounds  of  ju- 
risdiction; a  short  and  simple  statement  of 
the  ultimate  facts  upon  which  the  plaintiff 
asks  relief,  omitting  any  mere  statement 
of  evidence;  reasons  for  the  omission  of  any 
proper  parties,  if  any  be  omitted;  and  a 
prayer  for  any  special  relief  pending  the 
suit  or  on  final  hearing,  which  may  be  stated 
in  alternative  forms. 

The  bill  must  be  signed  by  counsel;  Davis 
v.  Davis,  19  N.  J.  Eq.  180;  1  Dan.  Ch.  Pr. 
*312.  It  need  not  ordinarily  be  sworn  to; 
but  if  special  relief  pending  suit  be  asked, 
it  must  be  verified  by  plaintiff,  or  some  one 
having  knowledge  of  the  facts.  Equity  Rule 
25  of  S.  C.  of  U.  S.  So,  it  is  said,  where 
some  preliminary  relief  is  required  or  in  bills 
praying  for  the  production  of  documents,  in- 
cident to  relief  at  law,  or  for  relief  in  eq- 
uity on  a  lost  instrument;  1  Dan.  Ch.  Pr. 
*393,  and  cases  cited  in  notes;  so,  bills  to 
perpetuate  testimony  must  have  an  affidavit 
of  the  circumstances  under  which  the  testi- 
mony is  likely  to  be  lost ;  id.  *394,  n.  3 ;  and 
bills  of  interpleader  must  have  an  affidavit 


BILL 


345 


BILL 


of  no  collusion;  id.  "394,  n.  4.  A  bill  filed 
by  a  corporation  need  not  be  under  seal ; 
Georges  Creek  Coal  &  Iron  Co.  v.  Detmold, 
1  Md.  Ch.  Dec.  371;  City  of  Moundsville  v. 
R.  Co.,  37  W.  Va.  92,  10  S.  E.  514,  20  L.  B. 
A.  101;  so  also  of  a  bill  brought  by  a  mu- 
nicipal corporation;  City  of  Moundsville  v. 
R.  Co.,  37  W.  Va.  92,  16  S.  E.  514,  20  L. 
R.  A.  161. 

A  bill  filed  by  a  woman  need  not  show 
whether  she  is  married  or  single;  Paige  v. 
Broadfoot,   100  Ala.  tJ10,  13  South.  426. 

A  bill  in  the  United  States  district  court 
must,  in  the  prayer  for  a  subpoena,  contain 
the  names  of  the  defendants ;  otherwise  it 
may  be  dismissed  by  the  court  of  its  own 
motion;  City  of  Carlsbad  v.  Tibbetts,  51  Fed. 
852.  It  is  a  fatal  defect;  Goebel  v.  Supply 
Co.,  55  Fed.  825.  But  the  new  equity  rules 
omit  that  provision. 

"A  bill  is  not  to  be  construed  strictly  as 
an  indictment  would  have  been  100  years 
ago,  but  is  to  be  taken  to  mean  what  it  fair- 
ly conveys  to  a  dispassionate  reader  by  a 
fairly  exact  use  of  English  speech.  The  de- 
murrer is  to  be  read  with  the  same  liberal- 
ity." Swift  &  Co.  v.  U.  S.,  196  U.  S.  395, 
25  Sup.  Ct.  279,  49  L.  Ed.  518,  per  Holmes,  J. 
Bills  are  said  to  be  original,  not  original, 
or  in  the  nature  of  original  bills. 

Original  bills  are  those  which  do,  and 
which  do  not,  pray  for  relief.  Story,  Eq. 
PI.  §  17. 

Those  which  pray  for  relief  are  either  bills 
praying  the  decree  or  order  touching  some 
right  claimed  by  the  party  exhibiting  the 
bill,  in  opposition  to  some  right,  real  or  sup- 
posed, claimed  by  the  party  against  whom 
the  bill  is  exhibited,  or  touching  some  wrong 
done  in  violation  of  the  plaintiff's  right, 
which  is  the  most  common  kind  of  bill ;  Mitf. 
Eq.  PI.  34 ;  1  Dan.  Ch.  Pr.  305. 

Those  which  do  not  pray  for  relief  are 
either  to  perpetuate  testimony;  to  examine 
witnesses  de  bene  esse;  or  for  discovery. 

Bills  not  original  are  either  supplemental ; 
of  revivor;  or  of  revivor  and  sup/dement. 

Also  a  cross  bill;  a  bill  of  review;  a  bill  to 
impeach  a  decree ;  to  suspend  the  operation, 
or  -avoid  the  decree  for  subsequent  matter ; 
to  carry  a  decree  into  effect ;  or  partaking  of 
the  qualities  of  some  one  or  all  of  them. 
See  Mitf.  Eq.  PI.  35 ;  Story,  Eq.  PI.  §  18.  Van 
Heythuysen  (Equity  Draftsman  444)  desig- 
nates these  as  bills  in  the  nature  of  original 
bills,  and  adds  to  them :  A  bill  in  the  na- 
ture of  a  bill  of  revivor,  to  obtain  the  benefit 
of  a  suit  after  abatement  in  certain  cases 
which  do  not  admit  of  a  continuance  of  the 
original  bill;  and  a  bill  in  the  nature  of  a 
supplement  hill  to  obtain  the  benefit,  of  a  suit 
either  after  abatement  in  other  cases  which 
do  not  admit  of  a  continuance  of  the  original 
bill,  or  after  the  suit  is  become  defective, 
without  abatement  in  cases  which  do  not  ad- 
mit of  a  supplemental  bill  to  supply  that  de- 
fect 


For  an  account  of  these  bills,  consult  the 
various  titles. 

As  a  Contract.  An  obligation;  a  deed, 
whereby  the  obligor  acknowledges  himself 
to  owe  the  obligee  a  certain  sum  of  money 
or  some  other  thing,  in  which,  besides  the 
names  of  the  parties,  are  to  be  considered 
the  sum  or  thing  due,  the  time,  place,  and 
manner  of  payment  or  delivery  thereof.  It 
may  be  indented  or  poll,  and  with  or  with- 
out a  penalty.     West,  Symb.  §  100. 

This  signification  came  to  include  all  con- 
tracts evidenced  by  writing,  whether  spe- 
cialties or  parol,  but  is  no  longer  in  use  ex- 
cept in  phrases,  such  as  bill  payable,  bill  of 
lading. 

In  Legislation.  A  special  act  passed  by  a 
legislature  in  the  exercise  of  a  quasi  judicial 
power.  Thus,  bills  of  attainder,  bills  of  pains 
and  penalties,  are  spoken  of.  See  Act; 
Bill  of  Attainder  ;  Bill  of  Pains  and  Pen- 
alties. 

The  draft  of  a  law  submitted  to  the  con- 
sideration of  a  legislative  body  for  its  adop- 
tion. Southwark  Bank  v.  Com.,  2G  Pa.  450. 
By  the  constitution  of  the  United  States,  all 
bills  for  raising  revenue  must  originate  in 
the  house  of  representatives ;  but  the  senate 
may  propose  or  concur  with  aniendments  as 
on  other  bills.     See  Munkv  Bills. 

As  to  money  bills  in  Parliament,  see  Par- 
liamentary Act. 

Every  bill,  before  it  becomes  a  law,  must 
be  approved  by  the  president  of  the  United 
States,  or  within  ten  days  returned,  with 
his  objections,  to  the  house  in  which  it 
originated.  Two-thirds  of  each  house  may 
then  enact  it  into  a  law.  Similar  provisions 
are  copied  in  the  constitutions  of  most  of 
the  states;   U.  S.  Const,  art.  1.  §  7. 

In  Mercantile  Law.  The  creditor's  written 
statement  of  his  claim,  specifying  the  items. 

It  differs  from  an  account  stated  In  this,  that  a 
bill  is  the  creditor's  statement ;  an  account  stated 
is  a  statement  which  has  been  assented  to  by  both 
parties.    See  Account  Stated. 

In  England  it  has  been  held  that  a  bill 
thus  rendered  is  conclusive  against  the  par- 
ty making  it  out  against  an  increase  of 
charge  on  any  of  the  items  contained  in  it; 
and  strong  evidence  as  to  items ;  1  B.  &  1'. 
49.  But  in  New  York  it  has  been  held  that 
merely  presenting  a  bill,  no  payment  or 
agreement  as  to  the  amount  being  shown, 
does  not  conclude  the  party  from  suing  for 
a  larger  sum;  Williams  v.  Glenny,  16  N.  Y. 
3S9. 

BILL  FOR  A  NEW  TRIAL.  One  filed  in  a 
court  of*  equity  praying  for  an  injunction 
after  a  judgment  at  law  when  there  is  any 
fact  which  renders  it  against  conscience  to 
execute  such  judgment,  and  of  which  the  in- 
jured party  could  not  avail  himself  in  a 
court  of  law,  or.  if  he  could,  was  prevented 
by  fraud  or  accident,  unmixed  with  any  fault 
or  negligence  of  himself  or  his  agents.  Mit- 
ford,    Eq.    PL    131;    2  Story   Eq.   PL   §  8S7. 


BILL  FOR  A  NEW  TRIAL 


34G 


BILL— SUPPLEMENTAL  BILL 


Bills  of  this  description  are  not  now  gener- 
ally countenanced :  Woodworth  v.  Van  Bus- 
kerk,  1  Johns.  Ch.  (N.  Y.)  432;  Floyd  v. 
Jayne,  G  Johns.  Ch.   (N.  YT)  479. 

BILL  FOR  FORECLOSURE.  One  which 
is  filed  by  a  mortgagee  against  the  morc- 
gagor,  for  the  purpose  of  having  the  prop- 
erty sold,  thereby  to  obtain  the  sum  secured 
on  the  premises,  with  interest  and  costs.  1 
Madd.  Ch.  Pr.  528.    See  Foreclosure. 

BILL  IMPEACHING  A  DECREE  FOR 
FRAUD.  This  must  be  an  original  bill, 
which  may  be  filed  without  leave  of  court; 
1  Sch.  &  L.  355 ;  1  Ves.  Ch.  120 ;  3  Bro.  C.  C. 
74.  It  must  state  the  decree,  the  proceedings 
which  led  to  it,  and  the  ground  on  which 
it  is  impeached;   Story,  Eq.  PI.  §  42S. 

The  effect  of  the  bill,  if  the  prayer  be 
granted,  is  to  restore  the  parties  to  their 
former  situation,  whatever  their  rights.  See 
Story,  Eq.  PI.  §  426;  Mitf.  Eq.  PI.  84. 

BILL  IN  AID  OF  EXECUTION.  A  bill 
which  assumes  as  its  basis  the  principle  of 
a  decree  and  seeks  merely  to  carry  it  into 
effect.  Story,  Eq.  PI.  §  249.  For  instance, 
where  all  the  facts  do  not  distinctly  appear 
on  the  record;  1  Ph.  181;  or  where,  since 
the  decree,  the  rights  of  the  parties  have  beT 
come  embarrassed  by  subsequent  events,  and 
a  new  decree  is  necessary;  Adams,  Eq.  415. 

BILL  IN  NATURE  OF  A  BILL  OF  RE- 
VIEW. One  which  is  brought  by  a  person 
not  bound  by  a  decree,  praying  that  the  same 
may  be  examined  and  reversed ;  as  where  a 
decree  is  made  against  a  person  who  has  no 
interest  at  all  in  the  matter  in  dispute,  or 
had  not  an  interest  sufficient  to  render  the 
decree  against  him  binding  upon  some  person 
claiming  after  him. 

Relief  may  be  obtained  against  error  in  the  decree 
by  a  bill  in  the  nature  of  a  bill  of  review.  This  bill 
in  its  frame  resembles  a  bill  of  review  except  that, 
instead  of  praying  that  the  former  decree  may  be 
reviewed  and  reversed,  it  prays  that  the  cause  may 
be  heard  with  respect  to  the  new  matter  made  the 
subject  of  the  supplemental  bill,  at  the  same  time 
that  it  is  reheard  upon  the  original  bill,  and  that 
the  plaintiff  may  have  such  relief  as  the  nature  of 
the  case  made  by  the  supplemental  bill  may  re- 
quire;   1  Harrison,  Ch.  Pr.  145. 

BILL  IN  NATURE  OF  A  BILL  OF  RE- 
VIVOR. One  which  is  filed  when  the  death 
of  a  party,  whose  interest  is  not  determined 
by  his  death,  is  attended  with  such  a  trans- 
mission of  his  interest  that  the  title  to  it,  as 
well  as  the  person  entitled,  may  be  litigated 
in  the  court  of  chancery.  In  the  case  of  a 
devise  of  real  estate,  the  suit  is  not  permit- 
ted to  be  continued  by  bill  of  revivor ;  1 
Chanc.  Cas.  123,  174;  3  Chanc.  Rep.  39; 
Mosel.  44. 

In  such  cases,  an  original  bill,  upon  which  the 
title  may  be  litigated,  must  be  filed,  and  this  bill 
will  have  so  far  the  effect  of  a  bill  of  revivor  that 
if  the  title  of  the  representative  by  the  act  of  the 
deceased  party  is  established,  the  same  benefit  may 
be  had  of  the  proceedings  upon  the  former  bill  as  if 
the  suit  had  been  continued  by  bill  of  revivor  ;  1 
Vera.  427;  2  id.  548,  672;  2  Brown,  P.  C.  529;  1  Eq. 
Cas.  Abr.  83;    Mitf.  Eq.  PL  71. 


BILL  IN  NATURE  OF  A  SUPPLEMEN- 
TAL BILL.  One  which  is  filed  when  the  in- 
terest of  the  plaintiff  or  defendant,  suing  or 
defending,  wholly  determines,  and  the  same 
property  becomes  vested  in  another  person 
not  claiming  under  him.  Hinde,  Ch.  Pr.  71. 
The  principal  difference  between  this  and  a  sup- 
plemental bill  seems  to  be  that  a  supplemental  bill 
is  applicable  to  such  cases  only  where  the  same 
parties  or  the  same  interests  remain  before  the 
court ;  whereas  an  original  bill  in  the  nature  of  a 
supplemental  bill  is  properly  applicable  where  new 
parties,  with  new  interests  arising  from  events  oc- 
curring since  the  institution  of  the  suit,  are  brought 
before  the  court;  Cooper,  Eq.  PI.  75;  Story,  Eq. 
PI.  §  345.  For  the  exact  distinction  between  a  bill 
of  review  and  a  supplemental  bill  in  the  nature  of  a 
bill  of  review,  see  2  Phill.  Ch.  705;  1  Macn.  &  G. 
397. 

BILL  OBLIGATORY.  A  bond  absolute  for 
the  payment  of  money.  It  is  called  also  a 
single  bill,  and  differs  from  a  promissory 
note  only  in  having  a  seal ;  Farmers'  &  Me- 
chanics' Bank  v.  Greiner,  2  S.  &  R.  (Pa.) 
115.    See  Read,  PI.  236;   West,  Symb. 

BILL  OF  ADVENTURE.  A  writing  signed 
by  a  merchant,  ship-owner,  or  master  to  tes- 
tify that  goods  shipped  on  board  a  certain 
vessel  are  at  the  venture  of  another  person, 
he  himself  being  answerable  only  for  the 
produce. 

BILL  OF  CERTIORARI.  In  Equity  Prac- 
tice. One  praying  for  a  writ  of  certiorari 
to  remove  a  cause  from  an  inferior  court 
of  equity.  Cooper,  Eq.  44.  Such  a  bill  must 
state  the  proceedings  in  the  inferior  court, 
and  the  incompetency  of  such  court  by  sug- 
gestion of  the  reason  why  justice  is  not  likely 
to  be  done — as  distances  of  witnesses,  lack 
of  jurisdiction  etc., — and  must  pray  a  writ 
of  certiorari  to  remove  the  record  to  the 
superior  court.  Harrison,  Ch.  Pr.  49 ;  Story, 
Eq.  PI.  §  298. 

Where  an  equitable  right  is  sued  for  in  an 
inferior  court  of  equity,  and  by  means  of  its 
limited  jurisdiction  the  defendant  cannot 
have  complete  justice,  the  defendant  may  file 
a  bill  in  chancery,  praying  a  special  writ, 
called  a  bill  of  certiorari,  to  remove  the 
cause  into  the  Court  of  Chancery;  Mitf.  & 
Tyler,  Eq.  PI.  148. 

BILL  OF  CONFORMITY.  In  Equity  Prac- 
tice. One  filed  by  an  executor  or  adminis- 
trator, who  finds  the  affairs  of  the  deceased 
so  much  involved  that  he  cannot  safely  ad- 
minister the  estate  except  under  the  direc- 
tion of  a  court  of  chancery.  This  bill  is 
filed  against  the  creditors,  generally,  for  the 
purpose  of  having  all  their  claims  adjusted, 
and  procuring  a  final  decree  settling  the  or- 
der of  payment  of  the  assets.  1  Story,  Eq. 
Jut.  440. 

BILL  OF  COSTS.  A  statement  of  the 
items  which  form  the  total  amount  of  the 
costs  of  a  suit  or  action.  It  must  be  taxed 
by  the  proper  officer  of  the  court,  and  is  de- 
mandable  as  a   matter  of  right   before  the 


BILL  OF  COSTS 


347 


BILL  OF  DISCOVERY 


payment  of  the  costs.     See  Costs;    Taxing 
Costs. 

BILL  OF  CREDIT.  Paper  issued  by  the 
authority  of  a  state  ou  the  faith  of  the  state, 
and  designed  to  circulate  as  money.  Briscoe 
v.  Bank,  11  Pet.   (U.  S.)  257,  9  L.  Ed.  709. 

Promissory  notes  or  bills  issued  by  a  state 
government,  exclusively,  on  the  credit  of  the 
state,  and  intended  to  circulate  through  the 
community  for  its  ordinary  purposes  as  mon- 
ey, redeemable  at  a  future  day,  and  for  the 
payment  of  which  the  faith  of  the  state  is 
pledged.    4  Kent  408. 

The  constitution  of  the  United  States  pro- 
vides that  no  state  shall  emit  bills  of  credit, 
or  make  anything  but  gold  and  silver  coin  a 
legal  tender  in  payment  of  debts.  U.  S. 
Const,  art.  1,  §  10.  This  prohibition,  it  seems, 
does  not  apply  to  bills  issued  by  a  bank 
owned  by  the  state  but  having  a  specific  cap- 
ital set  apart;  Cooley,  Const.  Liin.  84;  State 
v.  BilliSj  2  McCord  (S.  C.)  12;  MeFarland 
v.  Bank,  4  Ark.  44,  37  Am.  Dec.  701 ;  Bris- 
coe v.  Bank,  11  Pet.  (U.  S.)  257,  7  L.  Ed. 
709;  Darrington  v.  Bank,  13  How.  (U.  S.) 
12,  14  L.  Ed.  30;  but  see  Craig  v.  Missouri, 
4  Tet.  (U.  S.)  410,  7  L.'  Ed.  903;  Linn  v. 
Bank,  1  Scam.  (111.)  87,  25  Am.  Dec.  71;  nor 
does  it  apply  to  notes  issued  by  corporations 
or  individuals  which  are  not  made  legal  ten- 
der; 4  Kent  408;  nor  to  coupons  on  state 
bonds,  receivable  for  taxes  and  negotiable, 
but  not  intended  to  circulate  as  money; 
Poindexter  v.  Greenhow,  114  U.  S.  270,  5 
Sup.  Ct.  903,  962,  29  L.  Ed.  185.  But  it  does 
apply  to  a  state  warrant  containing  a  direct 
promise  to  pay  the  bearer  the  arno"unt  stated 
on  its  face,  and  which  is  intended  to  circu- 
late as  money ;  Bragg  v.  Tuffts,  49  Ark.  554, 
G  S.  W.  158. 

In  Mercantile  Law.  A  letter  sent  by  an 
agent  or  other  person  to  a  merchant,  desir- 
ing him  to  give  credit  to  the  bearer  for  goods 
or  money.  Corny ns,  Dig.  Merchant,  F,  3;  3 
Burr.  1GG7;  Tagaud  v.  State,  5  Smedes  & 
M.  (Miss.)  401;  McFarland  v.  Bank,  4  Ark. 
44;   State  v.  Calvin,  R.  M.  Charlt.  (Ga.)   151. 

BILL  OF  DEBT.  An  ancient  term  includ- 
ing promissory  notes  and  bonds  for  the  pay- 
ment of  money.  Comyns,  Dig.  Merchant, 
F,  2. 

BILL  OF  DISCOVERY.  In  Equity  Prac- 
tice. One  which  prays  for  the  discovery  of 
facts  resting  within  the  knowledge  of  the 
person  against  whom  the  bill  is  exhihited,  or 
of  deeds,  writings,  or  other  things  in  his  cus- 
tody or  power.  Hinde,  Ch.  Pr.  20;  Blake, 
Chanc.  Pract  37. 

It  does  not  seek  relief  In  consequence  of  the  dis- 
covery (and  this  constitutes  its  characteristic  fea- 
ture), though  it  may  ask  for  a  stay  of  proceedings 
till  discovery  is  made ;  2  Story,  Eq.  Jur.  §  14S3  ; 
Bisph.  Eq.  §  557;  and  such  relief  as  does  not  require 
a  hearing  before  the  court  may  be  part,  it  is  said, 
of  the  prayer  ;  Eden,  Inj.  78 ;  19  Ves.  Ch.  376 ;  4 
Madd.  247;    5  id.  218;    1  Sch.  &  L.  316;    1  Sim.  &  S.  83. 

It  is  commonly  used  in  aid  of  the  juris- 


diction of  a  court  of  law,  to  enable  the  par- 
ty who  prosecutes  or  defends  a  suit  at  law  to 
obtain  a  discovery  of  the  facts  which  are 
material  to  such  prosecution  or  defence; 
Hare,  Discov.  11!);  Marsh  v.  Davison,  9  Paige, 
Ch.  (N.  Y.)  5S0;  Lane  v.  Stebbins,  0  Paige, 
Ch.  (N.  Y.)  622;  2  Dan.  Ch.  Pr 
Eq.  PL  §  167.  A  defendant  In  equity  may 
obtain  the  same  relief  by  a  cross  bill;  Langd. 
Eq.  PL  §  128. 

The  plaintiff  must  be  entitled  to  the  dis- 
covery he  seeks,  and  can  only  have  a  dis- 
covery of  what  is  necessary  for  his  own  title, 
as  of  deeds  he  claims  under,  and  not  to  pry 
into  that  of  the  defendant;  2  Yes.  Ch 
See  Mitf.  Eq.  PL  52;  1  Madd.  Ch.  IT.  19G; 
Hare;  Wigram,  Disc.  It  will  not  lie  to  com- 
pel a  judgment  debtor  to  disclose  assets  on 
which  execution  may  be  levied;  CargiU  v. 
Kountze,  86  Tex.  386,  •Ji!  S.  W.  1015,  25  S. 
W.  13,  24  L.  R.  A.  183,  40  Am.  St.  Rep.  S53. 

There  has  been  much  controversy  as  to 
whether  the  defendant  is  entitled  to  discov- 
ery to  aid  him  in  preparing  his  answer; 
Lansd.  Eq.  PI.  §  129. 

The  bill  must  show  a  present  and  vested 
title  and  interest  in  the  plaintiff,  and  what 
that  title  and  interest  are;  Pease  v.  Pease, 
8  Mete.  (Mass.)  395;  1  Yern.  105;  Story, 
Eq.  Jur.  §  1490;  Baxter  v.  Farmer,  42  N.  C. 
239;  with  reasonable  certainty;  3  Ves.  343; 
must  state  a  case  which  will  constitute  a 
just  ground  for  a  suit  or  a  defence  at  law; 
Mclntyre  v.  Mancius,  3  Johns.  Ch.  (X.  Y.) 
47 ;  1  Bro.  C.  C.  90 ;  must  describe  the  deeds 
and  acts  with  reasonable  certainty  ;  3  Yes. 
Ch.  343;  Horton  v.  Moseley.  17  Ala.  794; 
must  state  that  a  suit  is  brought,  or  about 
to  be,  and  the  nature  thereof  must  be  given 
with  reasonable  certainty;  5  Madd.  18:  must 
show  that  the  defendant  has  some  interest; 
1  Ves.  &  B.  550 ;  Wakeman  v.  Bailey,  3  Barb. 
Ch.  (N.  Y.)  4S4;  and,  where  the  right  arises 
from  privity  of  estate,  what  that  i  rivity  is; 
Mitf.  Eq.  PI. ;  it  must  show  that  the  matter  is 
material,  and  how;  Many  v.  Iron  Co.,  9 
Paige  Ch.  (N.  Y.)  3SS;  Marsh  v.  Davison,  9 
Paige  Ch.  (N.  Y.)  580;  Lane  v.  Stebbins,  9 
Paige  Ch.  (N.  Y.)  622;  Stacy  v.  Pear 
Rich.  Eq.  (S.  C.)  148;  and  must  set  forth 
the  particulars  of  the  discovery  sought; 
Laight  v.  Morgan,  2  Caines  Cas.  (X.  Y.)  344; 
1  Y.  &  J.  ."77.  Adverse  examination  before 
trial  of  a  defendant  will  not  be  permitted  for 
the  purpose  of  discovering  a  cause  of  action; 
Britton  v.  MacDonald,  3  Misr.  514,  IT.  N.  Y. 
Supp.  350. 

A  bill  for  discovery  but  waiving  answer 
under  oath  is  not  demurrable  for  want  of  an 
affidavit  and  cannot  he  treated  as  a  bill  for 
discovery;  Harrington  v.  Harrington,  15  R. 
I.  341,  5  Atl.  502 :  if  the  oath  has  been 
waived,  the  defendant  is  not  excused  from 
answering,  but  he  loses  the  benefit  of  his 
own  declarations,  while  his  admissions  are 
evidence  against  him;  Uhlmauu  v.  Brewing 
Co.,  41  Fed.  309. 


BILL  OF  DISCOVERY 


348 


BILL  OF  EXCEPTIONS 


It  will  not  lie  in  aid  of  a  criminal  prose- 
cution, a  mandamus,  or  suit  for  a  penalty; 
2  Ves.  Ch.  398;  Colton  v.  Ross,  2  Paige  Ch. 
(N.  Y.)  399,  22  Am.  Dec.  648;  Story,  Eq. 
Jur.  §  1494;    1  Pom.  Eq.  Jiw.  §  197. 

BILL  OF  EXCEPTIONS.  A  written  state- 
ment of  objections  to  the  decision  of  a  court 
upon  a  point  of  law,  made  by  a  party  to  the 
cause,  and  properly  certified  by  the  judge  or 
court  who  made  the  decision. 

The  object  of  a  bill  of  exceptions  is  to  put  the  de- 
cision objected  to  upon  record  for  the  information 
of  the  court  having  cognizance  of  the  cause  in  er- 
ror. They  were  authorized  by  statute  Westm.  2d 
(13  Edw.  I.),  c.  31,  the  principles  of  which  have  been 
adopted  in  all  the  states,  though  the  statute  has 
been  held  to  be  superseded  in  some,  by  their  own 
statutes.  It  provides  for  compelling  the  judges  to 
sign  such  bills,  and  for  securing  the  insertion  of  the 
exceptions  upon  the  record.  They  may  be  brought 
by  either  plaintiff  or  defendant.  Abolished  in  Eng- 
land by  the  Judicature  Act,  1873. 

"The  statute  gives  a  bill  of  exceptions  only 
in  a  trial  according  to  the  course  of  the  com- 
mon law;  and  there  is  no  other  means  of 
putting  evidence  on  a  record;"  Union  Canal 
Co.  v.  Keiser,  19  Pa.  137,  per  Gibson,  J. 

In  what  cases.    In  the  trial  of  civil  causes, 
wherever   the   court,   in  making  a  decision, 
is  supposed  by  the  counsel  against  whom  the 
decision  is  made  to  have  mistaken  the  law, 
such  counsel  may  tender  exceptions  to  the 
ruling,   and  require   the  judge   to   authenti- 
cate the  bill;    3  Bla.  Com.  372;    Sowerwein 
v.  Jones,  7  Gill  &  J.  (Md.)  335 ;  Ray  v.  Lips- 
comb, 48  N.  C.  185;    including  the  receiving 
improper,  and  the  rejecting  proper,  evidence ; 
Samuel  v.  Withers,  9  Mo.  166;    Com.  v.  Bos- 
worth,  6  Gray   (Mass.)   479;    King  v.  Gray, 
17  Tex.  62;    and  a  failure  to  call  the  atten- 
tion of  the  jury  to  material  matter  of  evi- 
dence, after  request ;   Ex  parte  Baily,  2  Cow. 
(N.    Y.)    479;     and    including   a    refusal   to 
charge    the    jury    in    a   case   proper    for    a 
charge;    Fletcher   v.   Howard,  2  Aik.    (Vt.) 
115,  16  Am.  Dec.  686;    Emerson  v.  Hogg,  2 
Blatchf.  1,  Fed.  Cas.  No.  4,440 ;  Com.  v.  Pack- 
ard, 5  Gray  (Mass.)  101;  but  not  including  a 
failure  to  charge  the  jury  on  points  of  law 
when  not  requested;    Texas  &  P.  R.  Co.  v. 
Volk,  151  TJ.  S.  73,  14  Sup.  Ct.  239,  38  L.  Ed. 
78;    Law  v.  Merrills,  6  Wend.   (N.  Y.)   274; 
Brigham    v.    Wentworth,    11    Cush.    (Mass.) 
123;    Rogers  v.  R.  Co.,  38  Me.  227;    and  in- 
cluding a  refusal  to  order  a  special  verdict 
in  some  cases;    Syme  v.  Butler,  1  Call  (Va.) 
105.     It  can  be  taken  to  the  action  or  want 
of  proper  action  of  the  trial  court,  upon  any 
proceeding  in  the  progress  of  the  trial  from 
the  commencement  of  the  same  to  its  conclu- 
sion  and   when   properly   presented   can   be 
considered  by  the  court  on  writ  of  error; 
Wilson  v.  United  States,  149  U.  S.  67,  13  Sup. 
Ct.  765,  37  L.  Ed.  650. 

An  exception  cannot  be  taken  to  the  de- 
cision of  the  court  upon  matters  resting  in 
its  discretion ;  Cummings  v.  Fullam,  13  Vt. 
459;   Law  v.  Merrills,  6  Wend-  (N.  Y.)  277; 


Deloach  v.  Walker,  7  How.  (Miss.)  164;  Mos- 
seaux  v.  Brigham,  19  Vt.  457;  nor  upon  any 
theory  announced  by  the  court,  unless  such 
be  expressed  in  particular  language  ;  Bogk  v. 
Gassert,  149  U.  S.  17,  13  Sup.  Ct.  738,  37  L. 
Ed.  631;  nor  for  the  refusal  of  a  non-suit; 
Ballentine  v.  White,  77  Pa.  20;  nor  where 
the  record  shows  a  fatal  error,  as  want  of 
jurisdiction;  Fields  v.  Maloney,  78  Mo.  172; 
nor,  generally,  in  cases  where  there  is  a 
right  of  appeal;  Wheelock  v.  Moulton,  13 
Vt.  430;  though  the  practice  in  some  states 
is  otherwise. 

In  criminal  cases,  at  common  law,  judges 
are  not  required  to  authenticate  exceptions; 
1  Chitty,  C.  L.  622;  People  v.  Holbrook,  13 
Johns.  (N.  Y.)  90;  Wynhamer  v.  People,  20 
Barb.  (N.  Y.)  567;  Case  v.  Com.,  1  Va.  Cas. 
264;  Middleton  v.  Com.,  2  Watts  (Pa.)  285; 
U.  S.  v.  Gibert,  2  Sumn.  19,  Fed.  Cas.  No. 
15,204;  but  statutory  provisions  have  been 
made  in  several  states  authorizing  the  taking 
of  exceptions  in  criminal  cases;  Com.  v. 
Jones,  1  Leigh  (Va.)  598;  Wynhamer  v. 
People,  20  Barb.  (N.  Y.)  567;  Osburn  v. 
State,  7  Ohio,  214,  pt.  1 ;  Donnelly  v.  State, 
26  N.  J.  L.  463 ;  Shannon  v.  People,  5  Mich. 
36 ;  Fife  v.  Com.,  29  Pa.  429. 

When  to  oe  taken.  The  bill  must  be  ten- 
dered at  the  time  the  decision  is  made ;  Mid- 
berry  v.  Collins,  9  Johns.  (N.  Y.)  345;  State 
v.  Lord,  5  N.  H.  336;  Coburn  v.  Murray,  2 
Greenl.  (Me.)  336;  Bratton  v.  Mitchell,  5 
Watts  (Pa.)  69;  Hawkins'  Heirs  v.  Lowry, 
6  J.  J.  Marsh.  (Ky.)  247;  Agnew  v.  Camp- 
bell's Adm'rs,  17  N.  J.  L.  291 ;  Lenox  v.  Pike, 
2  Ark.  14;  Bompart  v.  Boyer,  8  Mo.  234; 
Randolph  v.  Alsey,  8  Mo.  656;  Croft  v.  Fer- 
rell,  21  Ala.  ,351;  Patterson  v.  Phillips,  1 
How.  (Miss.)  572;  McKell  v.  Wright,  4  la. 
504;  Houston  v.  Jones,  4  Tex.  170;  and  it 
must,  in  general,  be  taken  before  the  jury 
have  delivered  their  verdict;  Morris  v.  Buck- 
ley, 8  S.  &  R.  (Pa.)  211;  Lanuse  v.  Barker, 
10  Johns.  (N.  Y.)  312;  Kilgore  v.  Bonic,  9 
Mo.  291 ;  Fugate  v.  Muir,  9  Mo.  355;  Jones 
v.  Van  Patten,  3  Ind.  107;  Armstrong  v. 
Mock,  17  111.  166;  Martin  v.  State,  25  Tex. 
App.  557,  8  S.  W.  682 ;  State  v.  Brown,  100 
N.  C.  519,  6  S.  E.  568. 

In  the  circuit  court  of  appeals  no  excep- 
tions to  rulings  at  a  trial  will  be  considered, 
unless  taken  at  the  trial,  embodied  in  a  bill 
of  exceptions,  presented  to  the  judge  at  the 
same  term  or  at  a  time  allowed  by  rule  of 
court  made  at  the  term,  or  by  a  standing 
rule  of  court,  or  by  consent  of  the  parties, 
and  except  under  extraordinary  circum- 
stances must  be  allowed  and  filed  with  the 
clerk  during  the  same  term ;  New  York  & 
N.  E.  R.  Co.  v.  Hyde,  56  Fed.  1S8,  5  C.  C.  A. 
461.  See  Morse  v.  Anderson,  150  U.  S.  156, 
14  Sup.  Ct.  43,  37  L.  Ed.  1037 ;  U.  S.  v.  Jones, 
149  U.  S.  262,  13  Sup.  Ct.  840,  37  L.  Ed.  726. 
In  practice,  however,  the  point  is  merely 
noted  at  the  time,  and  the  bill  is  afterwards 
settled;    Bull.  N.  P.  315;    Stewart  v.  Hunt- 


BILL  OF  EXCEPTIONS 


349 


BILL  OF  EXCEPTIONS 


ingdon  Bank,  11  S.  &  R.  (Pa.)  270,  14  Am. 
Dec.  028;  State  v.  Lord,  5  N.  II.  338;  Ship- 
herd  v.  White,  3  Cow.  (N.  Y.)  32;  Ferrell  v. 
Alder,  2  Swan  (Tenn.)  77;  but  in  general 
before  the  close  of  the  term  of  court;  Staggs 
v.  State,  3  Hurupbr.  (Tenn.)  372;  Pomeroy 
y.  Selnies,  8  Mo.  727;  Sheppard  v.  Wilson,  G 
How.  (U.  S.)  260,  12  L.  Ed.  430;  and  then 
must  appear  on  its  face  to  have  been  signed 
at  the  trial;  Walton  v.  U.  S.,  9  Wheat  (U. 
S.)  G51,  6  L.  Ed.  182;  Law  v.  Merrills,  6 
Wend.  (N.  Y.)  2GS;  Byrd  v.  Tucker,  3  Ark. 
451.  A  bill  may  be  sealed  by  the  judge  after 
the  record  has  been  removed,  and  even  after 
the  expiration  of  his  term  ;  Bennett  v.  Davis, 
Morris  (la.)  3G4.  See  Whitcomb  v.  Wil- 
liams, 4  Pick.  (Mass.)  228;  Consaul  v.  Lidell, 
7  Mo.  250.  If  presented  to  and  signed  by  a 
Judge  after  the  close  of  term,  and  the  record 
does  not  show  any  order  or  consent  so  to 
do,  the  supreme  court  will  affirm  the  judg- 
ment; U.  S.  v.  Jones,  140  U.  S.  262,  13  Sup. 
Ct.  840,  37  L.  Ed.  726. 

Formal  proceedings.  The  bill  must  be  sign- 
ed by  the  judge  or  a  majority  of  the  judges 
who  tried  the  cause ;  Law  v.  Jackson,  8  Cow. 
(N.  Y.)  746;  Gordon  v.  Browne*  Ex'r,  3 
Hen.  &  M.  (Va.)  219;  Kennedy  v.  Trustees 
of  Covington,  4  J.  J.  Marsh.  (Ky.)  543;  Dar- 
ling v.  Gill,  Wright  (Ohio)  73;  Small  v. 
Ha  skins,  29  Vt.  187;  Cameron  v.  Ward,  22 
Ga.  1G8 ;  upon  notice  of  time  and  place  when 
and  where  it  is  to  be  done;  Bull.  N.  P.  316; 
Law  v.  Jackson,  8  Cow.  (N.  Y.)  746;  Harris 
v.  State,  2  Ga.  211 ;   Smith  v.  Burn,  id.  262. 

Allowing  and  signing  a  bill  of  exceptions 
is  a  judicial  act,  which  can  only  be  done  by 
the  judge  who  sat  at  the  trial,  or  by  the 
presiding  judge  if  more  than  one  sat;  con- 
sent of  counsel  will  not  give  validity ;  Ma- 
lony  v.  Adsit,  175  U.  S:  281,  20  Sup.  Ct  115, 
44  L.  Ed.  163.  If  the  proper  judge  die  before 
signing  it,  the  court  will  grant  a  hew  trial ; 
id.,  citing  16  C.  B.  29;  3  id.  796;  State  v. 
Weiskittle,  61  Md.  51.  It  was  held  in  Penn. 
Mut  Life  Ins.  Co.  v.  Ashe,  145  Fed.  593,  76 
C.  C.  A.  283,  7  Ann.  Cas.  491,  that  if  a  cir- 
cuit judge  dies,  pending  a  motion  for  a  new 
trial,  and  there  is  no  record  from  which  his 
successor  could  fairly  pass  upon  the  motion 
and  sign  a  bill  of  exceptions,  his  only  author- 
ity under  the  statute  is  to  grant  a  new  trial. 
In  case  a  judge  resigns,  his  successor  has 
jurisdiction,  in  his  discretion,  to  sign  a  bill 
of  exceptions;  Mclntyre  v.  Modern  Wood- 
men of  America,  200  Fed.  1. 

Where  the  bill  is  presented  for  signature 
within  the  prescribed  time,  one  will  not  be 
prejudiced  by  the  refusal  or  neglect  of  the 
judge  to  sign  it  within  the  prescribed  time; 
Hawes  v.  Pulver,  120  111.  123,  21  N.  E.  777; 
Wright  v.  Judge  of  Superior  Court,  41  Mich. 
726,  40  N.  W.  025.  The  bill  need  not  be  seal- 
ed; U.  S.  R.  S.  §  053;  but  must  be  signed 
by  the  judge,  and  the  initials  "A.  B."  are 
not  the  signature  of  the  judge  and  do  not 
constitute  a  sufficient  authentication;   Origet 


v.  U.  S.,  125  U.  S.  240,  8  Sup.  Ct.  846,  31  L. 
Ed.  743;  Malony  v.  Adsit,  175  U.  S.  2S7,  20 
Sup.  Ct  115,  44  L.  Ed.  I 

Facts  not  appearing  on  the   bill  are   not 
presumed;    Beavers   v.    Smith,    11    Ala 
Cravins  v.  Gant,  4  T.  B.   Monr.   (Ky.)   126; 
Courtney  v.  Com.,  5  Rand.  (\  Snow- 

den  v.  Warder,  3  Rawle  (Pa.)  L01;  Berry  v. 
Hale,    1   How.    (Miss.)    315;    Pons    v.    Hart,   5 
Fla.  457;  Dunlop  v.  Munroe,  7  Cra.  i 
270,  3  L.  Ed.  320. 

Effect  of.  The  bill  when  sealed  I 
elusive  evidence  as  to  the  facts  therein  stat- 
ed as  between  the  parties;  3  Burr.  17<;.">; 
Bingham  v.  Cabbot,  3  Dall.  (U.  S.)  38,  1  L. 
Ed.  401;  Law  v.  Merrills,  6  Wend.  (N.  Y.i 
276;  in  the  suit  to  which  it  relates,  but  no 
further;  Shotwell  v.  Hamblin,  23  Miss.  15G, 
55  Am.  Dec.  83;  see  Baylor  v.  Smithers,  1 
T.  B.  Monr.  (Ky.)  6;  and  all  objections  not 
appearing  by  the  bill  are  excluded;  8  East 
280;  Baring  v.  Shippen,  2  Binn.  (Pa.)  16S ; 
Allen  v.  Smith,  12  N.  J.  L.  160;  I  om.  v. 
Stephens,  14  Pick.  (Mass.)  370:  Dean  v. 
Gridley,  10  Wend.  CX.  Y.)  254;  Newsum  v. 
Newsum,  1  Leigh  (Va.)  86,  10  Am.  Dec.  730; 
Picket  v.  Allen,  10  Conn.  146;  Drexel  v. 
Man,  6  W.  &  S.  (Pa.)  343;  Bone  v.  Mc- 
Ginley,  7  How.  (Miss.)  671 ;  Brown  v.  Brown, 
7  Mo.  2S8;  Stimpson  v.  R.  Co.,  3  How.  (D 
S.)  553,  11  L.  Ed.  722;  Lewis  v.  Lewi-.  75 
la.  660,  37  N.  W.  166.  But  see  Murdock 
v.  Herndon's  Ex'rs,  4  Hen.  &  M.  (Va.)  200. 
In  the  absence  of  a  bill  of  exceptions  point- 
ing out  the  alleged  errors  the  appellate  court 
will  not  review  the  instructions  unless  funda- 
mentally erroneous;  Howard  v.  State,  25  Tex. 
App.  602,  8  S.  W.  806.  An  exception  to  con- 
clusions of  law  admits  the  findings  of  fact ; 
Neisler  v.  Harris,  115  Ind.  560.  18  N.  E.  30. 

It  draws  in  question  only  the  points  to 
which  the  exception  is  taken ;  Van  Gordon 
v.  Jackson,  5  Johns.  (N.  Y.)  467;  Coxe  v. 
Field,  13  N.  J.  L.  216:  Watson  v.  Wi 
10  Conn.  75;  Picket  v.  Allen,  id.  146;  and  an 
exception  to  an  instruction  will  not  be  con- 
sidered when  the  bill  of  exceptions  does  not 
show  what  the  evidence  tended  to  p 
Phoenix  Mut  Life  Ins.  Co.  v.  Raddin,  120 
U.  S.  183,  7  Sup.  Ct.  500,  30  L.  Ed.  644. 
It  does  not  of  itself  operate  as  a  stay  of 
proceedings;  Seymour  v.  Slocum.  18  Wend. 
(N.  Y.)  500;  Holcombe  v.  Roberts,  10  Ga. 
588.  The  practice  of  making  the  entire 
charge  to  the  jury  a  part  of  the  bill  of  ex- 
ceptions is  strongly  disapproved;  Phoenix 
Life  Ins.  Co.  v.  Raddin,  120  U.  S.  1S3,  7  Sup. 
Ct.  500,  30  L.  Ed.  614. 

A  stipulation,  if  it  can  be  understood,  may 
answer  in  place  of  a  bill  of  exceptions;  Houl- 
ehan  v.  Rassler,  7::  Wis.  557,  41  N.  W.  720. 

If  the  judge"s  rulings  and  the  grounds  of 
objection  thereto  appear  of  record,  the  right 
of  the  party  excepting  is  fully  preserved 
without  the  retention  of  a  bill ;  State  v. 
Judge  Twenty-Third  District  Court  40  La. 
Ann.  800,  5  South.  407.     If  the  judge  has 


BILL  OF  EXCEPTIONS 


350 


BILL  OF  EXCHANGE 


certified  and  filed  the  record  containing  the 
evidence,  exceptions,  and  charge,  he  is  not 
compelled  to  sign  a  second  or  separate  bill 
for  the  party  excepting ;  Com.  v.  Arnold,  101 
Pa.  320,  29  Atl.  270.  Where  the  error  is  ap- 
parent upon  the  record  it  need  not  be  pre- 
sented by  a  bill  of  particulars;  Moline  Plow 
Co.  v.  Webb,  141  U.  S.  616,  12  Sup.  Ct  100, 
35  L.  Ed.  879. 

They    have    been    abolished    In    English    practice. 

A  curious  case  in  McDonald  v.  Faulkner,  2  Ark. 
471!,  shows  what  is  probably  the  only  instance  of  the 
kind,— a  bill  of  exceptions  certified  by  bystanders. 
The  verdict  and  judgment  was  entered  for  the 
plaintiff  September  10,  1893 ;  September  12  the  de- 
fendant moved  for  a  new  trial,  and  on  the  16th  the 
motion  was  overruled  and  the  defendant  accepted 
and  obtained  leave  to  prepare  a  bill  of  exceptions. 
Under  date  of  the  21st,  the  record  states:  "The  de- 
fendant filed  his  bill  of  exceptions,  whereupon  the 
plaintiff  filed  his  bill  of  exceptions  certified  by 
the  bystanders."  To  the  latter  the  judge  appended 
a  statement  that  he  declined  signing  it,  "not  that 
it  does  not  contain  the  facts  of  the  case,  but  be- 
cause it  purports  to  be  an  exception  to  the  opinion 
of  the  court  in  signing  a  bill  of  exceptions  taken 
to  a  former  decision  of  the  court  in  signing  a  bill 
of  exceptions  in  the  progress  of  the  cause."  There- 
upon the  plaintiff's  bill  of  exceptions  was  signed 
and  certified  to  be  true  by  five  bystanders.  The 
judgment  was  reversed  and  a  new  trial  ordered, 
but  no  mention  is  made  of  plaintiffs  bill  of  excep- 
tions on  petition  for  rehearing.  In  an  opinion  de- 
nying it,  the  judge  refers  to  the  "plaintiff's  bill  of 
exceptions  taken  and  signed  by  bystanders  on  the 
25th  of  September,"  and  holds  him  estopped  by  the 
statements  in  it  from  denying  the  accuracy  of  de- 
fendant's bill  of  exceptions. 

BILL  OF   EXCHANGE. 

A  written  order  from  one  person  to  an- 
other, directing  the  person  to  whom  it  is 
addressed  to  pay  to  a  third  person  a  cer- 
tain sum  of  money  therein  named.  Byles, 
Bills  1. 

By  the  Negotiable  Instrument  Act,  a  bill 
of  exchange  is  an  unconditional  order  in 
writing  addressed  by  one  person  to  another, 
signed  by  the  person  giving  it  requiring  the 
addressee  to  pay  on  demand,  or  at  a  fixed  or 
determinable  future  time,  a  sum  certain  in 
money  to  order  or  to  bearer.  It  may  be 
either  an  inland  bill  or  a  foreign  bill,  and 
may  be  drawn  in  sets.  The  act  defines  a 
check  as  a  bill  of  exchange  drawn  on  a  bank 
and  payable  on  demand.  See  Negotiable 
Instruments,  for  the  states,  etc.,  in  which  it 
has  been  enacted. 

A  bill  of  exchange  may  be  negotiable  or  non-ne- 
gotiable. If  negotiable,  it  may  be  transferred  either 
before  or  after  acceptance. 

The  person  making  the  bill,  called  the  drawer,  is 
said  to  draw  upon  the  person  to  whom  it  is  direct- 
ed, and  undertakes  impliedly  to  pay  the  amount 
with  certain  costs  if  he  refuse  to  comply  with  the 
command.  The  drawee  is  not  liable  on  the  bill  till 
after  acceptance,  and  then  becomes  liable  as  prin- 
cipal to  the  extent  of  the  terms  of  the  acceptance  ; 
while  the  drawer  becomes  liable  to  the  payee  and 
indorsees  conditionally  upon  the  failure  of  the  ac- 
ceptor to  pay.  The  liabilities  between  indorsers  and 
indorsees  are  subject  to  the  same  rules  as  those  of 
indorsers  and  indorsees  on  promissory  notes.  Reg- 
ularly, the  drawee  is  the  person  to  become  accept- 
or; but  other  parties  may  accept,  under  special 
circumstances. 

A  foreign  bill  of  exchange  is  one  of  which 
the    drawer    and    drawee    are   residents    of 


countries  foreign  to  each  other.  In  this  re- 
spect the  states  of  the  United  States  are  held 
foreign  as  to  each  other;  Phoenix  Bank  v. 
Hussey,  12  Pick.  (Mass.)  483;  Wells  v.  White- 
head, 15  Wend.  (N.  Y.)  527;  Hopkins  v.  Clay, 
3  A.  K.  Marsh.  (Ky.)  488;  Bank  of  Cape 
Fear  v.  Stinemetz,  1  Hill  (S.  C.)  44;  Brown 
v.  Ferguson,  4  Leigh  (Va.)  37,  24  Am.  Dec. 
707;  Green  v.  Jackson,  15  Me.  136;  Donegan 
v.  Wood,  49  Ala.  242,  20  Am.  Rep.  275 ;  Todd 
v.  Neal's  Adm'r,  49  Ala.  266;  Rice  v.  Hagan, 
8  Dana  (Ky.)  133 ;  Carter  v.  Burley,  9  N.  H. 
558;  Armstrong  v.  Bank,  133  U.  S.  433,  10 
Sup.  Ct.  450,  33  L.  Ed.  747;  Knickerbocker 
Life  Ins.  Co.  v.  Pendleton,  112  U.  S.  696,  5 
Sup.  Ct.  314,  28  L.  Ed.  866 ;  Ticonic  Bank  v. 
Stackpole,  41  Me.  302;  1  Dan.  Neg.  Inst  § 
9.  But  see  contra,  Miller  v.  Hackley,  5 
Johns.  (N.  Y.)  3S4,  4  Am.  Dec.  372,  and  see 
Grimshaw  v.  Bender,  6  Mass.  162. 

An  inland  bill  is  one  of  which  the  drawer 
and  drawee  are  residents  of  the  same  state 
or  country;  Ragsdale  v.  Franklin,  25  Miss. 
143.  As  to  whether  a  bill  is  considered  as 
foreign  or  inland  when  made  partly  in  one 
place  and  partly  in  another,  see  5  Taunt. 
529;  8  id.  679;  1  Maule  &  S.  87.  Defined  by 
statute  19  &  20  Vict.  c.  97,  §  7. 

The  distinction  between  inland  and  foreign 
bills  becomes  important  with  reference  to 
the  question  whether  protest  and  notice  are 
to  be  given  in  case  of  non-acceptance.  See 
3  Kent  95;  Protest. 

The  parties  to  a  bill  of  exchange  are  the 
drawer,  the  drawee,  the  acceptor,  and  the 
payee.  Other  persons  connected  with  a  bill 
in  case  of  a  transfer  as  parties  to  the  trans- 
fer are  the  indorser,  indorsee,  and  holder. 
See  those  titles.  It  sometimes  happens  that 
one  or  more  of  the  apparent  parties  to 
a  bill  are  fictitious  persons.  The  rights  of 
a  oona  fide  holder  are  not  thereby  prejudiced 
where  the  payee  and  indorser  are  fictitious; 
2  H.  Bla.  78;  1  Campb.  130;  Blodgett  v. 
Jackson,  40  N.  H.  26;  Benj.  Chal.  Dig.  §  85; 
or  even  where  the  drawer  and  payee  are 
both  fictitious;  10  B.  &  C.  468;  and  all  the 
various  parties  need  not  be  different  per- 
sons; Wildes  v.  Savage,  1  Sto.  22,  Fed. 
Cas.  No.  17,653.  The  qualifications  of  par- 
ties who  are  to  be  made  liable  by  the  mak- 
ing or  transfer  of  bills  are  the  same  as  in 
case  of  other  contracts.  See  Parties;  Fic- 
titious Payee. 

The  bill  must  be  written',  1  Pardessus,  344 ; 
2  Stra.  955.  See  Goldman  v.  Blum,  58  Tex. 
636. 

It  should  be  properly  dated,  both  as  to 
place  and  time  of  making;  Beawes,  Lex 
Merc.  pi.  3;  2  Pardessus,  n.  333;  1  B.  &  C. 
398.  But  it  is  not  essential  to  the  validity 
of  a  bill;  1  Dan.  Neg.  Inst  §  82;  Drake  v. 
Rogers,  32  Me.  524;  Coon  v.  Swan,  30  Vt 
11.  If  not  dated,  it  will  be  considered  as 
dated  at  the  time  it  was  made;  Seldonridge 
v.  Connable,  32  Ind.  375 ;  Cowing  v.  Altman, 
71  N.  Y.  441,  27  Am.  Rep.  70;   First  Nat 


BILL  OF  EXCHANGE 


351 


BILL  OF  EXCHANGE 


Bank  of  St.  Charles  v.  Hunt,  25  Mo.  App. 
174.  Bills  are  sometimes  ante  or  post-dated 
for  convenience;  Union  Bethel  African  M. 
E.  Church  v.  Sheriff,  33  La.  Ann.  1461;  Fraz- 
ier  v.  Printing  &  Bookbinding  Co.,  24  Hun 
(N.  Y.)  281. 

The  superscription  of  the  sum  for  which 
the  bill  is  payable  will  aid  an  omission  in 
the  bill,  but  is  not  Indispensable;  Smith  v. 
Smith,  1  R.  I.  39S,  53  Am.  Dec.  652;  10  Q. 
B.  Div.  30. 

The  time  of  payment  should  be  expressed; 
but  if  no  time  is  mentioned  it  is  considered 
as  payable  on  demand:  2  B.  &  C.  157;  Por- 
ter v.  Porter,  51  Me,  376;  First  Nat.  Bank  of 
St.  Charles  v.  Hunt,  25  Mo.  App.  174;  Con- 
verse v.  Johnson,  146  Mass.  22,  14  N.  B.  925  ; 
Hall  v.  Toby,  110  Pa.  318,  1  Atl.  369;  Bos- 
well  Mfg.  Co.  v.  Hudson,  Watson  &  Co.,  72 
Ga.  25;  l.  r.  3  Q.  B.  573.  In  Massachusetts 
it  must  be  payable  at  a  definite  time  or  at 
such  a  time  as  can  be  made  definite  upon 
election  of  the  holder;  Stults  v.  Silva,  119 
Mass.  137;  Mahoney  v.  Fitzpa  trick,  133 
Mass.  151,  43  Am.  Rep.  502. 

The  place  of  payment  may  be  prescribed 
by  the  drawer;  8  C.  B.  433;  or  by  the  ac- 
ceptor on  his  acceptance;  3  Jur.  34;  Green 
v.  Goings,  7  Barb.  ( N.  Y. )  652 ;  but  is  not  as 
a  general  practice,  in  which  last  case  the 
bill  is  considered  as  payable  and  to  be  pre- 
sented at  the  usual  place  of  business  of  the 
drawee,  King  v.  Holmes,  11  Pa.  456,  at  his 
residence,  where  it  was  made,  or  to  him 
personally  anywhere;  10  B.  &  C.  4;  M.  & 
M.  381;  4  C.  &  P.  35;  Scott  v.  Perlee,  39  Ohio 
St.  67,  48  Am.  Rep.  421. 

Such  an  order  or  request  to  pay  must  be 
made  as  demands  a  right,  and  not  asks  a 
favor;  M.  &  M.  171;  and  it  must  be  absolute, 
and  not  contingent;  2  B.  &  Aid.  417;  Wool- 
ley  v.  Sergeant,  8  N.  J.  L  262,  14  Am.  Dec. 
419;  Smurr  v.  Forman,  1  Ohio,  272;  Van 
Vacter  v.  Flack,  1  Sraedes  &  M.  (Miss.)  393, 
40  Am.  Dec.  100;  Henry  v.  Hazen,  5  Ark. 
401 ;  Kinney  v.  Lee,  10  Tex.  155.  Mere  civil- 
ity in  the  terms  does  not  alter  the  legal  ef- 
fect of  the  instrument. 

The  word  pay  is  not  necessary ;  deliver  is 
equally  operative;  8  Mod.  364:  as  well  as 
other  words:  9  C.  B.  570;  but  they  must  be 
words  requiring  payment;  10  Ad.  &  E.  98; 
"U  vous  plaira  de  payer"  is,  in  France,  the 
proper  language  of  a  bill;  Pailliet,  Man.  841. 

Each  of  the  duplicate  or  triplicate  (as  the 
case  may  be)  bills  of  a  set  of  foreign  ex- 
change contains  a  provision  that  the  particu- 
lar bill  is  to  be  paid  only  if  the  others  re- 
main at  the  time  unpaid:  see  2  Pardessus, 
n.  342;  and  all  the  parts  of  the  set  constitute 
but  one  bill;  Ingraham  v.  Gibbs,  2  Dall.  (U. 
S.)  134,  1  L.  Ed.  320. 

A  bill  should  designate  the  payee;  26  E.  L. 
&  Eq.  404;  Lyon  v.  Marshall.  11  Barb.  (N.  Y.) 
241;  Moody  v.  Threlkeld,  13  Ga.  55;  Tittle 
v.  Thomas,  30  Miss.  122,  64  Am.  Dec.  154; 
Adams  v.  King,  16  I1L.  169,  61  Am.  Dec.  64; , 


and  see  Wheeler  v.  Webster,  1  E.  D.  Smith 
(N.  Y.)  1;' Moore  v.  Anderson,  8  Ind.  18;  but 
when  no  payee  is  designated,  the  holder  by 
indorsement  may  fill  the  blank  with  his  own 
L'  Maule  &  S.  90;  and  if  payable  to  the 
bearer  it  is  sufficient;  3  Burr.  1526. 

To  make  it  negotiable,  it  i  tyable 

to  the  order  of  the  payee  or  to  i 
or  must  contain  other  equivalent  and  i 
tive  words  of  transfer  :  9  I'..  &  • 
v.   La  Coste,  1  Dall.  (U.  S.i  194,  1    I 

ig   v.    Back*  □  \\   Y.) 

l.':7:    Fernon    v.    Farmer's    Adm'r,   1    Ilarr. 
(Del.)    •'"_':    Hackney    v.    Jones.    3    Humphr. 
(Tenn.)    612;    Reed    v.    Murphy,    1    Ga. 
Smurr  v.  Forman,  1  Ohio.  272;  Raymond  v. 
Middleton,    29   Pa.   530;    otherwise   in 
states  of  the  United   States  by  statute 
in    Scotland;    Maxwell    v.    Goodrnm,    it)    p. 
Monr.   (Ky.)   2S6.     But  in   England   and   the 
United   States  negotiability   i~  ential 

to   the   validity   of  a    bill;   3  Ken1 
Bills  &  N.  12;  6  Term  li.'.". :   President,  etc., 
of    Goshen    &    Minisink    Turnpike    Road    v. 
Hurtin,  9  Johns.  (N.  Y.)  217,  6  Am.  Dec.  273; 
Dune,-:  n  v.  Sav.  Inst.,  10  Gill  &  J.  (Md 
Coursin    v.    Ledlie's    Adm'rs,    31    Pa.    506; 
Michigan    Bank   v.   Eldred,   9   Wall.   (1 
544,  19  L.  Ed.  7."..".:  though  it  is  otherv. 
France;    Code   de   Comm.    art.    110,    V 
Pardessus,   n.    339.     The  fact   that    the   bill 
provides    that    it    shall    bear    interest    from 
date  in  case  of  failure  to  pay  at  maturity, 
will  not  affect  its  negotiability  as  the  rule 
that  it  must  be  for  a  sum  certain  applh  a  to 
the    principal    and    not    interest;    Chr 
County  Bank  v.  Goode,  44  Mo.  App.  1L".»:  m>r 
a   provision    that    a    higher  rate   of  interest 
shall  be  paid  after  default:  Merrill  v.  Hur- 
ley, 6  S.  D.  592,  62  X.   W.   958,   55  Am.    St. 
Rep.  859;  nor  will  its  negotiability  be  8 
ed  by  a  stipulation  in  it  to  pay  a  reasonable 
attorney's  fee;  Bank  of  Commerce  of  Owens- 
boro  v.   Fuqua,    11   Monr.    285,    28   Pac.   291, 
14  L.  R.  A.  588,  28  Am.  St.  Rep.  461;  Wolff 
v.  Dorsey,  38  111.  App.  305;  Stark  v.   I 
44  Neb.  64G,  63  N.  W.  ::7  ;  Benn  v.  Kutzschan, 
24    Or.    28,    32    Pac.    70:!:    contra,    Clark    v. 
Barnes,  5S  Mo.  App.  667;  First  Nat.  Bank  of 
Decorah  v.  Laughlin,  4  N.  D.  391,  Gl  N.  W. 
47.!;    Woods   v.   North,   84   Pa.   407,    24    Am. 
Rep.  201. 

The  s-ion  for  which  the  bill  is  drawn 
should  be  written  in  full  in  the  body  of  the 
instrument,  as  the  words  in  the  body  govern 
in  case  of  doubt;  5  Bingh.  N.  C.  425;  Mears 
v.  Graham,  8  Blackf.  (Ind.)  144:  Smith  v. 
Smith.  1  R.  I.  398,  53  Am.  'Dec.  652;  the 
marginal  figures  are  not  a  part  of  the  con- 
tract, but  a  mere  memorandum;  Smith  v. 
Smith,  1  R.  I.  398,  53  Am.  Dec.  652;  Com. 
v.  Bank,  98  Mass.   V-.  93  Am.  Dee.  126. 

The  amount  must  be  fixed  and  certain,  and 
not  contingent;  2  Balk.  375;  Philadelphia 
Dank  v.  Xewkirk,  2  Miles  (Pa.)  4 11' :  Story 
v.  Lamb,  52  Mich.  525,  IS  N.  W.  248.  It 
must  be  payable  iu  money,  and  not  in  mer- 


BILL  OP  EXCHANGE 


352 


BILL  OF  EXCHANGE 


chandise;  Jerome  v.  Whitney,  7  Johns.  (N. 
Y.)  321;  Thomas  v.  Roosa,  id.  461;  Peay  v. 
Pickett,  1  N.  &  Mc.  (S.  C)  251;  Gwiim  v. 
Roberts,  3  Ark.  72;  Strader  v.  Batchelor, 
8  B.  Monr.  (Ky.)  16S;  Hosstatter  v.  Wilsdn, 
36  Barb.  (N.  Y.)  307;  and  is  not  negotiable 
if  payable  in  bank  bills  or  in  cwTcncy  or 
other  substitutes  for  legal  money  of  similar 
denominations;  Hasbrook  v.  Palmer,  2  Mc- 
Lean, 10,  Fed.  Cas.  No.  6,188;  Collins  v. 
Lincoln,  11  Vt.  26S;  Kirkpatrick  v.  McCul- 
lough,  3  Humphr.  (Tenn.)  171,  39  Am.  'Dec. 
158;  Hawkins  v.  Watkins,  5  Ark.  4S1 ;  Mc- 
Cormick  v.  Trotter,  10  S.  &  R.  (Pa.)  94;  Ir- 
vine v.  Lowry,  14  Pet  (U.  S.)  293,  10  L.  Ed. 
462;  Batik  of  Mobile  v.  Brown,  42  Ala.  108; 
held  otherwise  in  Swetland  v.  Creigh,  15- 
Ohio,  118;  Besancon  v.  Shirley,  9  Smedes  & 
M.  (Miss.)  457;  Cockrill  v.  Kirkpatrick,  9 
Mo.  697:  Wilburn  v.  Greer,  6  Ark.  255;  Og- 
den  v.  Slade,  1  Tex.  13 ;  Fleming  v.  Nail,  id. 
246;  Chevallier  v.  Buford,  id.  503;  Lacy  v. 
Holbrook,  4  Ala.  S8;  Carter  v.  Penn,  id.  140; 
Bull  v.  Bank,  123  U.  S.  112,  8  Sup.  Ct  62,  31 
L.  Ed.  97 ;  Laird  v.  State,  61  Md.  309. 

It  is  not  necessary,  however,  that  the 
money  should  be  current  in  the  place  of  pay- 
ment, or  where  the  bill  is  drawn;  it  may  be  in 
the  money  of  any  country  whatever;  Black 
v.  Ward,  27  Mich.  193,  15  Am.  Rep.  162; 
Thompson  v.  Sloan,  23  Wend.  (N.  Y.)  71,  35 
Am.  Dec.  546;  King  v.  Hamilton,  12  Fed. 
478;  1  Dan.  Neg.  Inst.  §  58.  But  it  is  neces- 
sary that  the  instrument  should  express  the 
specific  denomination  of  money  when  pay- 
able in  the  money  of  a  foreign  country,  in 
order  that  the  courts  may  be  able  to  ascer- 
tain its  equivalent  value;  otherwise  it  is  not 
negotiable;  1  Dan.  Neg.  Inst.  §  58.  As  to 
bills  payable  in  Confederate  money,  see  Thor- 
ington  v.  Smith,  8  Wall.  (U.  S.)  12,  19  L.  Ed. 
361;  The  Confederate  Note  Case,  19  Wall. 
(U.  S.)  548,  22  L.  Ed.  196;  Stewart  v.  Sala- 
mon,  94  U.  S.  434,  24  L.  Ed.  275;  and  that 
title. 

"Value  received"  Is  often  inserted,  but  is 
not  of  any  use  in  a  negotiable  bill;  Hubble  v. 
Fogartie,  3  Rich.  (S.  C.)  413,  45  Am.  Dec. 
775;  Mandeville  v.  Welch,  5  Wheat.  (U.  S.) 
277,  5  L.  Ed.  87 ;  Lines  v.  Smith,  4  Fla.  47 ; 
Coursin  v.  Ledlie's  Adm'rs,  31  Pa.  506;  3  M. 
&  S.  351. 

A  direction  to.  place  to  the  account  of  some 
one,  drawer,  drawee,  or  third  person,  is  often 
added,  but  is  unnecessary;  Comyns,  Dig. 
Merchant,  F,  5;  1  B.  &  C.  398. 

As  per  advice,  inserted  in  a  bill,  deprives 
the  drawee  of  authority  to  pay  the  bill  until 
advised;  Chitty,  Bills  162. 

It  should  be  subscribed  by  the  drawer, 
though  it  is  sufficient  if  his  name  appear  in 
the  body  of  the  instrument;  2  Ld.  Raym. 
1376;  Claussen  v.  La  Franz,  1  la.  231;  May 
v.  Miller,  27  Ala.  515;  and  should  be  address- 
ed to  the  drawee  by  the  Christian  name  and 
surname,  or  by  the  full  style  of  the  firm;  2 


Pardessus,  n.  335;  Beawes,  Lex  Merc.  pi.  3; 
Chitty,  Bills  186. 

Provision  may  be  made  by  the  drawer,  and 
inserted  as  a  part  of  the  bill,  for  applying 
to  another  person,  for  a  return  without  pro- 
test, or  for  limiting  the  damages  for  re-ex- 
change, expense,  etc.,  in  case  of  the  failure 
or  refusal  of  the  drawee  to  accept  or  to 
pay ;  Chitty,  Bills  188. 

A  bona  fide  holder  of  a  bill  negotiated  be- 
fore maturity  merely  as  a  security  for  an 
antecedent  debt  is  not  affected,  without  no- 
tice, by  equities  or  defences  between  the 
original  parties;  Brooklyn  City  &  N.  R.  Co. 
v.  Bank,  102  U.  S.  14,  26  L.  Ed.  61. 

A  certificate,  made  and  payable  in  a  state 
out  of  a  particular  fund,  and  purporting  to 
be  the  obligation  of  a  municipal  corporation, 
is  not  governed  by  the  law  merchant,  and  is 
open  in  the  hands  of  subsequent  holders  to 
the  same  defences  as  existed  against  the  orig- 
inal payee ;  Indiana  v.  Glover,  155  U.  S.  513, 
15  Sup.  Ct.  186,  39  L.  Ed.  243. 

See  Indorsement;  Indorsee;  Indorsee; 
Acceptance;  Protest;  Damages;  Promis- 
sory Note;  Negotiable  Instrument;  For- 
eign Bill  of  Exchange. 

BILL  OF  GROSS  ADVENTURE.  In 
French  Maritime  Law.  Any  written  instru- 
ment which  contains  a  contract  of  bottomry, 
respondentia,  or  any  other  kind  of  maritime 
loan.  There  is  no  corresponding  English 
term.  Hall,  Marit  Loans  182.  See  Bottom- 
ry ;   Respondentia. 

BILL  OF  HEALTH.  A  certificate,  proper- 
ly authenticated,  that  a  certain  ship  or  ves- 
sel therein  named  conies  from  a  place  where 
no  contagious  distempers  prevail,  and  that 
none  of  the  crew  at  the  time  of  her  depar- 
ture were  infected  with  any  such  distemper. 

It  is  generally  found  on  board  ships  com- 
ing from  the  Levant,  or  from  the  coasts  of 
Barbary  where  the  plague  prevails ;  1  Marsh. 
Ins.  408;  and  is  necessary  whenever  a  ship 
sails  from  a  suspected  port,  or  where  it  is 
required  at  the  port  of  destination;  Holt 
167;    1  Bell,  Comm.  5th  ed.  553. 

BILL  OF  INDICTMENT.  A  written  accu- 
sation of  one  or  more  persons  of  a  crime  or 
misdemeanor,  lawfully  presented  to  a  grand 
jury.  If  twelve  or  more  members  of  the  jury 
are  satisfied  that  the  accused  ought  to  be 
tried,  the  return  is  made,  A  true  bill;  but 
when  no  sufficient  ground  is  shown  for  put- 
ting the  accused  on  trial,  a  return  is  made, 
Not  a  true  bill,  or,  Not  found ;  formerly,  Ig- 
noramus, and  this  phrase  is  still  sometimes 
used.    See  Indictment;   True  Bill. 

BILL  OF  INFORMATION.  One  which  is 
instituted  by  the  attorney-general  or  other 
proper  officer  in  behalf  of  the  state  or  of 
those  whose  rights  are  the  objects  of  its  care 
and  protection.  It  is  usually  termed  simply 
an  information,  or  information  in  equity. 

If  the  suit  immediately  concerns  the  right 


BILL  OF  INFORMATION 


353 


BILL  OF  INTERPLEADER 


of  the  state,  the  information  is  generally  ex- 
hibited without  a  relator.  If  it  does  not  im- 
mediately concern  those  rights,  it  is  conduct- 
ed at  the  instance  and  under  the  immediate 
direction  of  some  person  whose  name  is  in- 
serted in  the  information  and  is  termed  the 
relator.  In  case  a  relator  is  concerned,  the 
officers  of  the  state  are  not  further  concerned 
than  as  they  are  instructed  and  advised  by 
those  whose  rights  the  state  is  called  upon  to 
protect  and  establish.  In  such  case  the  at- 
torney-general simply  determines  in  limine 
whether  the  suit  is  one  proper  to  be  insti- 
tuted in  his  name,  and  the  subsequent  pro- 
ceedings a%e  usually  conducted  by  the  solic- 
itor of  the  relator  at  the  cost  of  the  latter. 
See  Harrison,  Ch.  Pr.  151 ;  Mitf.  Eq.  PI.  (by 
Tyler)  196;    Information. 

BILL  OF  INTERPLEADER.  One  in  which 
the  person  exhibiting  it  claims  no  right  in 
opposition  to  the  rights  claimed  by  the  per- 
sons against  whom  the  bill  is  exhibited,  but 
prays  the  decree  of  the  court  touching  the 
rights  of  those  persons,  for  the  safety  of  the 
person  exhibiting  the  bill.  Cooper,  Eq.  Plead. 
43 ;  Mitf.  Eq.  PI.  32 ;  Winfield  v.  Bacon,  24 
Barb.  (N.  Y.)  154;  Adams  v.  Dixon,  19  Ga. 
513,  65  Am.  Dec.  60S. 

An  interpleader  is  a  proceeding  in  equity 
for  the  relief  of  a  party  against  whom  there 
are,  at  law,  separate  and  conflicting  claims, 
whether  in  suit  or  not,  for  the  same  debt, 
duty,  or  thing,  and  where  a  recovery  by  one 
of  the  claimants  will  not,  at  law,  protect  the 
party  against  a  recovery  for  the  same  debt 
or  duty  by  the  other  claimant.  It  is  out  of 
this  latter  circumstance  that  the  equity  to 
relief  arises;  per  Bates,  Ch.,  Hastings  v. 
Cropper,  3  Del.  Ch.  165 ;  Badeau  v.  Rogers, 
2  Paige,  Ch.  (N.  Y.)  209;  and  where  the 
facts  present  a  proper  case  for  an  interplead- 
er, equity  will  not  entertain  a  bill  simply  to 
restrain  one  of  the  parties  claiming  the  fund 
in  controversy  from  prosecuting  his  claims 
until  the  other  party  has  failed  to  establish 
his  claim ;  Hastings  v.  Cropper,  3  Del.  Ch. 
165;  but  leave  will  be  granted  to  amend  by 
making  it  a  bill  of  interpleader  by  adding 
proper  parties,  bringing  the  fund  into  court, 
and  riling  the  affidavit  denying  collusion ;    id. 

A  bill  exhibited  by  a  third  person,  who, 
not  knowing  to  whom  he  ought  of  right  to 
render  a  debt  or  duty  or  pay  his  rent,  fears 
he  may  be  hurt  by  some  of  the  claimants, 
and  therefore  prays  that  they  may  inter- 
plead, so  that  the  court  may  judge  to  whom 
the  thing  belongs,  and  he  be  thereby  safe  on 
the  payment ;  Pract.  Reg.  78 ;  Bedell  v.  Hoff- 
man, 2  Paige  Ch.  (N.  Y.)  199;  City  Bank  v. 
Bangs,  id.  570 ;  Cameron  v.  The  Marcellus, 
48  N.  C.  S3 ;  Hall  v.  Craig,  125  Ind.  523,  25 
N.  E.  538 ;    Glaser  v.  Priest,  29  Mo.  App.  1. 

A  bill  of  the  former  character  may,  in 
general,  be  brought  by  one  who  has  in  his 
possession  property  to  which  two  or  more 
Bouv.— 23 


lay  claim ;    Strange  v.  Bell,  11  Ga.  103 ;   Con- 
sociated  Presbyterian  Soc.  of  Green's  Farm 
v.  Staples,  23  Conn.  544 ;   Herndon  v.  1 1 
15   Ark.    389;     Freeland    v.    Wilson,    1^ 
380 ;    Heusner  v.  Ins.  Co.,  47  Mo.  App. 

Such  a  bill  must  contain  the  plain 
statement  of  his  rights,  negativing  any  in- 
terest in  the  thing  in  controversy ;  3  Story, 
Eq.  Jur.  §  821 ;  but  showing  a  clear  title  to 
maintain  the  bill ;  3  Madd.  277 ;  and  also 
the  claims  of  the  opposing  parties;    Mohawk 

6  II.  It.  Co.  v.  Clute,  4  Paige  Ch.  (N.  Y.) 

7  Hare  57 ;  Robards  v.  Clayton,  49  Mo.  App. 
60S;  that  the  adverse  title  of  the  claimants 
is  derived  from  a  common  source  is  suffi- 
cient ;  Crane  v.  McDonald,  118  N.  Y.  648,  23 
N.  E.  991 ;  must  have  annexed  to  it  the  affi- 
davit of  the  plaintiff  that  there  is  no  collu- 
sion between  him  and  either  of  the  parties; 
Farley  v.  Blood,  30  N.  II.  354;  must  contain 
an  offer  to  bring  money  into  court  if  any  is 
due,  the  bill  being  demurrable,  if  there  is 
failure,  unless  it  is  offered  or  else  actually 
produced ;  Mitf.  Eq.  PL  49 ;  Barton,  Suit  in 
Eq.  -17,  n.  1;  must  show  that  there  are  per- 
sons in  being  capable  of  interpleading  and 
setting  up  opposing  claims;  18  Ves.  Ch.  .')TT  ; 
it  is  also  demurrable  if  upon  its  face  it 
shows  that  one  of  the  defendants  has  no 
claim  to  the  debt  due  from  the  complainant; 
Pusey  &  Jones  Co.  v.  Miller,  61  Fed.  401. 

These  proceedings  should  not  be  brought 
except  when  there  is  no  other  way  for  one 
to  protect  himself,  and  in  order  to  maintain 
the  action,  it  is  necessary  to  show  that  the 
plaintiff  has  not  acted  in  a  partisan  m 
as  between  the  claimants;  Hinckley  v.  1'iis- 
ter,  83  Wis.  64,  53  N.  W.  21. 

It  should  pray  that  the  defendants  set 
forth  their  several  titles,  and  interplead,  set- 
tle, and  adjust  their  demands  between  them- 
selves. It  also  generally  prays  an  injunction 
to  restrain  the  proceedings  of  the  claimants, 
or  either  of  them,  at  law ;  and  in  this  case 
the  bill  should  offer  to  bring  the  money  into 
court ;  and  the  court  will  not,  in  general,  act 
upon  this  part  of  the  prayer  unless  the  mon- 
ey be  actually  brought  into  court;  Mohawk 
&  H.  R.  Co.  v.  Clute,  4  Paige,  Ch.  (X.  Y.) 
3S4 ;  Richards  v.  Salter,  6  Johns.  Ch.  (N.  Y.) 
445. 

In  the  absence  of  statutes,  such  a  bill  does 
not  ordinarily  lie,  except  where  there  is  priv- 
ity of  some  sort  between  all  the  parties,  and 
where  the  claim  by  all  is  of  the  same  nature 
and  character;  3  Beav.  579;  Story,  Eq.  Jur. 
§  S07;  Lincoln  v.  R.  Co.,  24  Vt.  63$;  White 
Water  Valley  Canal  Co.  v.  Comegys,  2  Ind. 
469.  The  granting  of  an  order  of  interplead- 
er is  within  the  judicial  discretion;  Taylor 
v.  Satterthwalte,  2  Misc.  441,  22  N.  Y.  Supp. 
1ST. 

The  decree  for  interpleader  may  be  obtain- 
ed after  a  bearing  in  the  usual  manner;  4 
Bro.  Ch.  297;  City  Bank  v.  Bangs,  2  Paige. 
Ch.  (N.  Y.)  570 ;   or  without  a  hearing,  if  the 


BILL  OF  INTERPLEADER 


354 


BILL  OF  INTERPLEADER 


defendants  do  not  deny  the  statements  of  the 
bill-;   16  Ves.  Ch.  203 ;    Story,  Eq.  PI.  §  297  a. 

A  bill  in  the  nature  of  a  bill  of  interplead- 
er will  lie  in  many  cases  by  a  party  in  in- 
terest to  ascertain  aud  establish  his  own 
rights,  where  there  are  other  conflicting 
rights  between  third  persons;  Story,  Eq.  PI. 
§  297  6 ;  Bedell  v.  Hoffman,  2  Paige,  Ch.  (N. 
Y.)  199;  Cameron  v.  The  Marcellus,  48  N. 
C.  83. 

In  a  bill  of  interpleader  the  complainant 
being  indifferent  between  the  parties,  the 
duty  of  his  solicitor  is  ended  as  such,  when 
the  bill  is  bled,  and  he  has  no  interest  in  the 
decree  except  that  the  bill  shall  be  adjudged 
to  be  properly  tiled.  The  solicitor  may  then 
appear  for  one  of  the  parties,  but  only  by 
leave  of  the  court,  which  will  be  granted 
only  upon  consideration  of  the  special  cir- 
cumstances of  the  facts  of  the  case  and  the 
conclusion  that  the  case  is  a  proper  one  for 
granting  the  leave ;  Morrow  v.  Robinson,  4 
Del.  Ch.  534,  note;  Webster  v.  McDaniel,  2 
id.  297 ;  and  see  Houghton  v.  Kendall,  7  Al- 
len (Mass.)  72.     See  Interpleader. 

A  bill  of  interpleader  is  said  in  22  Harv. 
L.  R.  294,  to  lie  on  behalf  of  one  who  is  in 
the  position  of  an  innocent  stakeholder  who 
is  ready  to  do  his  duty,  in  order  to  free 
him  from  subjection  to  two  suits  and  the 
possibility  of  a  double  liability.  The  requi- 
sites of  the  suit  are,  roughly  speaking,  ten 
in  number:  1.  The  adverse  claims  must  be 
mutually  exclusive ;  National  Ins.  Co.  v.  Pin- 
grey,  141  Mass.  411,  6  N.  E.  93;  Bassett  v. 
Leslie,  123  N.  Y.  396,  25  N.  E.  386.  It  would 
be  manifestly  unjust  to  make  the  claimants 
fight  each  other  when  the  validity  of  one 
claim  is  not  dependent  upon  the  invalidity 
of  the  other;  there  can  then  be  no  dispute 
between  the  claimants.  For  this  reason,  if 
one  of  the  claimants  gets  a  verdict  or  judg- 
ment the  bill  no  longer  lies ;  see  Maxwell  v. 
Leichtman,  72  N.  J.  Eq.  780,  65  Atl.  1007. 
2.  The  complainant  must  be  willing  to  bring 
into  court  or  surrender  all  that  is  claimed 
by  either  defendant ;  M.  &  H.  R.  Co.  v.  Clute, 
4  Paige  (N.  Y.)  384.  If  he  has  a  counter- 
claim against  either  claimant  he  cannot  have 
it  determined  in  such  a  proceeding.  3.  The 
position  of  the  stakeholder  must  be  such  a 
precarious  one  that  he  really  needs  the  aid 
of  equity  to  prevent  injustice.  Thus,  one 
who  is  in  possession  of  land  claiming  no  title 
need  only  move  out.  So  also  the  bill  does 
not  lie  if  all  the  claims  would  be  settled  in 
one  suit  at  law;  Fitts  v.  Shaw,  22  R.  I.  17, 
46  Atl.  42 ;  or  if  one  of  the  claims  is  clearly 
invalid ;  M.  &  H.  R.  Co.  v.  Clute,  supra;  or 
both  are  illegal;  Applegarth  v.  Colley,  2 
Dowl.  N.  S.  223.  4.  There  must  be  no  col- 
lusion between  the  complainant  and  either 
claimant ;  Murietta  v.  So.  Amer.  Co.,  62  L. 
J.  Q.  B.  N.  S.  396.  The  bill  lies  to  help  only 
a  disinterested  stakeholder.  5.  The  stake- 
holder must  not  have  been  placed  in  his  pre- 
carious   position    through    his    own    fault; 


■  Horner  v.  Willcocks,  1  Ir.  Jur.  O.  S.  136 ; 
and  he  must  not  be  guilty  of  laches  in  pur- 
suing his  remedy.  6.  If  equity  is  unable  to 
enjoin  the  prosecution  of  one  of  the  claims 

■  at  law,  it  can  give  no  relief.  Thus  a  state 
court  declined  to  entertain  a  bill  because  it 
could  not  enjoin  a  federal  court  from  en- 
forcing its  judgment;  Smith  v.  Reed,  74  N. 
J.  Eq.  776,  70  Atl.  961.  These  six  requisites 
are  based  on  sound  principles  of  justice. 
The  following,  although  supported  by  author- 
ity, are  extremely  technical  and  will  be 
found  upon  examination  to  have  a  doubtful 
equitable  basis.  7.  It  is  often  required  that 
all  the  claims  be  derived  from  \i  common 
source ;  First  Nat.  Bank  v.  Bininger,  26  N.  J. 
Eq.  345.  This  is  a  survival  of  the  narrow 
view  of  interpleader  held  by  the  common 
law.  The  requisite  of  privity  is  foreign  to 
the  purpose  of  the  bill ;  for  the  position  of  a 
stakeholder  is  equally  precarious  irrespective 
of  the  sources  from  which  the  defendants  de- 
rive their  claims.  The  refusal  to  allow  an 
interpleader  therefore  seems  unsound;  see 
Crane  v.  McDonald,  118  N.  Y.  648,  23  N.  E. 
991;  17  Harv.  L.  Rev.  489.  8.  It  is  some- 
times required  that  the  stakeholder  have  no 
claim  or  interest  in  the  stake ;  see  4  Pomeroy, 
Eq.  Jurisp.  §  1325 ;  Maclennan,  Interpleader 
64.  If  the  amount  of  the  stakeholder's  charge 
is  disputed,  the  bill  will  not  lie;  Lawson  v. 
Warehouse  Co.,  70  Hun  281,  24  N.  Y.  Supp. 
281 ;  but  it  is  otherwise  if  the  claim  is  avail- 
able against,  and  admitted  by,  both  defend- 
ants; Gibson  v.  Goldthwaite,  7  Ala.  281,  42 
Am.  Dec.  592.  The  result  should  be  the  same 
where  the  lien  is  available  against  only  one 
of  the  defendants,  if  he  does  not  dispute  it. 
Hence  this  requirement  is  really  covered  by 
the  second  class  above.  9.  The  stakeholder 
must  havo  incurred  no  collateral  or  inde- 
pendent liability  to  either  claimant;  Bartlett 
v.  His  Imperial  Majesty,  23  Fed.  257 ;  Craws- 
hay  v.  Thornton,  2  My.  &  C.  1 ;  contra,  At- 
tenborough  v.  London,  etc.,  Co.,  3  C.  P.  D. 
450  (statutory)  ;  since,  it  is  argued,  one  of 
the  claimants  may  be  subjected  to  two  suits 
to  enforce  his  rights.  On  the  contrary  (and 
this  seems  to  be  the  better  and  more  modern 
view)  the  bill  will  settle  once  and  for  all  the 
ownership  of  the  res;  and  it  may  settle  the 
whole  controversy;  see  In  re  Mersey  Docks, 
[1890]  1  Q.  B.  546.  The  fact  of  the  collateral 
liability  is  immaterial  and  relief  should 
therefore  be  granted.  10.  Lastly,  it  is  in- 
sisted that  the  same  thing,  debt,  or  duty, 
must  be  claimed  by  all  the  defendants ;  Slan- 
ey  v.  Sidney,  14  M.  &  W.  800.  See  4  Pom- 
eroy, Eq.  Jurisp.  §  1323.  This  however  seems 
unnecessarily  refined  in  its  technicality.  So 
long  as  the  claims  are  mutually  exclusive, 
and  the  stakeholder  is  willing  to  bring  into 
court  the  full  amount  claimed  by  either,  it 
would  seem  that  he  should  be  entitled  to 
maintain  his  bill.  And  in  a  few  ca'ses  it  has 
so  been  held ;  Thomson  v.  Ebbets,  Hopk. 
Ch.  (N.  Y.)  272. 


BILL  OF  INTERPLEADER 


355 


BILL  OF  LADING 


In  Hayward  &  Clark  v.  McDonald,  192 
Fed.  890,  113  C.  C.  A.  368,  It  was  said  that 
the  true  limits  of  equity  jurisdiction  in  bills 
of  interpleader  is  not  precisely  settled ;  but 
that  a  strict  bill  is  one  in  which  the  com- 
plainant claims  no  relief  against  either  de- 
fendant. There  are,  however,  innumerable 
cases  of  bills  in  the  nature  of  bills  of  inter- 
pleader in  which  the  complainant  may  be  en- 
titled to  relief  by  such  bill ;  among  these  is  a 
case  where  the  complainant  has  property  in 
which  others  have  conflicting  claims,  but  in 
which  the  complainant  may  have  equitable 
rights  himself,  citing  Van  Winkle  v.  Owen, 
54  N.  J.  Eq.  233,  34  Atl.  400;  Stephenson  & 
Coon  v.  Burdett,  5G  W.  Va.  109,  48  S.  E.  846, 
10  L.  R.  A.  (N.  S.)  748;  Groves  v.  Sentell, 
153  U.  S.  465,  14  Sup.  Ct  898,  38  L.  Ed.  785. 

BILL  OF  LADING.  The  written  evidence 
of  a  contract  for  the  carriage  and  delivery 
of  goods  sent  by  sea  for  a  certain  freight. 

A  written  acknowledgment  of  the  receipt 
of  certain  goods  and  an  agreement  for  a  con- 
sideration to  transport  and  to  deliver  the 
same  at  a  specified  place  to  a  person  therein 
named  or  his  order.  See  Porter,  Bills  of 
Lading.  See  also  The  Delaware,  14  Wall. 
(U.  S.)  596,  20  L.  Ed.  77!). 

It  is  at  once  a  receipt  and  a  contract ;  St 
Louis,  I.  M.  &  S.  It.  Co.  v.  Knight,  122  U.  S. 
79,  7  Sup.  Ct.  1132,  30  L.  Ed.  1077 ;  Schouler, 
Pers.  Prop.  40S;  but  it  has  been  said  that 
rather  than  to  consider  it  as  a  mere  receipt, 
it  seems  better  to  regard  it  as  analogous  to  a 
negotiable  instrument ;  19  Harv.  L.  Rev.  391. 
A  bill  of  lading  ordinarily  represents  title  to 
the  goods  covered  by  it;  Peters  v.  Elliott, 
78  111.  321 ;  and  this  is  said  to  be  the  preva- 
lent American  view ;  12  Harv.  L.  Rev.  436. 

A  memorandum  or  acknowledgment  in  writ- 
ing, signed  by  the  captain  or  master  of  a 
ship  or  other  vessel,  that  he  has  received  in 
good  order  on  board  of  his  ship  or  vessel, 
therein  named,  at  the  place  therein  mention- 
ed, certain  goods  therein  specified,  which  he 
promises  to  deliver  in  like  good  order  (the 
dangers  of  the  sea  excepted)  at  the  place 
therein  appointed  for  the  delivery  of  the 
same,  to  the  consignee  therein  named,  or  to 
his  assigns,  he  or  they  paying  freight  for  the 
same;  1  Term  745;  Abb.  Sh.  216;  Code  de 
Comm.  art.  2S1. 

A  similar  acknowledgment  made  by  a  car- 
rier by  land. 

A  through  bill  of  lading  is  one  where  a 
railroad  contracts  to  transport  over  its  own 
line  for  a  certain  distance  carloads  of  mer- 
chandise or  stock,  there  to  deliver  the  same 
to  its  connecting  lines  to  be  transported  to 
the  place  of  destination  at  a  fixed  rate  per 
car-load  for  the  whole  distance ;  Gulf,  C.  & 
S.  F.  R.  Co.  v.  Vaughn,  4  Willson,  Ct.  App. 
Tex.  §  1S2,  16  S.  W.  775. 

It  should  contain  the  name  of  the  shipper 
or  consignor ;    the   name  of  the  consignee ; 


the  names  of  the  vessel  and  her  master ;  the 
places  of  shipment  and  destination ;  the  price 
of  the  freight,  and,  in  the  margin,  the  marks 
and  numbers  of  the  things  shipped.  Jacob- 
sen,  Sea  Laws. 

The  general  rule  that  contracts  are  gov- 
erned as  to  nature,  validity,  and  interpreta- 
tion by  the  lex  loci  contractus,  unless  it 
clearly  appears  that  the  parties  had  some 
other  law  in  view,  is  applicable  to  a  bill  of 
lading;  Brockway  v.  Exp.  Co.,  171  Mass.  158, 
50  N.  E.  626;  Frasier  v.  R.,  73  S.  C.  1 
S.  E.  964 ;  Illinois  Cent.  R.  Co.  v.  Beebe,  174 
111.  13,  50  N.  E.  1019,  42  L.  It.  A.  210,  66  Am. 
St,  Rep.  2.">::;  Herf  &  Frerichs  Chemical  Co. 
v.  Lackawanna  Line,  100  Mo.  App.  164,  73  S. 
W.  '-'Hi;  but  where  one  provides  for  the  de- 
livery of  goods  in  a  state  it  has  been  held 
to  be  a  contract  of  that  state  although  made 
in  another  state ;  Pennsylvania  Co.  v.  5 
25  Ohio  Cir.  Ct.  32;  C,  C,  C.  &  St.  L.  By. 
Co.  v.  Simon,  15  id.  123.  Any  reasonable 
doubt  as  to  the  construction  of  the  printed 
portion  should  be  resolved  against  the  car- 
rier; Baltimore  &  O.  R.  Co.  v.  Doyle,  142 
Fed.  669,  74  C.  C.  A.  245. 

Writing  is  unnecessary  and  an  oral  con- 
tract satisfactorily  proved,  if  there  is  no 
fraud  or  imposition,  is  equally  obligatory; 
Missouri  K.  &  T.  Ry.  Co.  v.  Patrick,  144  Fed. 
632,  75  C.  C.  A.  434.  A  promise  to  carry  on 
the  faith  of  which  the  shipper  buys  goods  is  a 
contract  of  carriage ;  Bigelow  v.  Ry.  Co.,  104 
Wis.  109.  80  N.  W.  95;  Meloche  v.  Ry.  Co., 
116  Mich.  69,  74  N.  W.  301;  and  so  is  the 
receipt  of  goods  and  undertaking  to  deliver ; 
Indiana,  I.  &  I.  R.  Co.  v.  Mfg.  Co.,  US  111. 
App.  652 ;  but  a  mere  promise  to  ship  is  not 
sufficient;  Southern  Ry.  Co.  v.  Wilcox,  99 
Va.  394,  39  S.  E.  144.  It  was  held  in  effect 
that  the  legal  liability  of  a  common  carrier 
is  part  of  the  contract  as  if  written  in  it; 
Evansville  &  T.  II.  R.  Co.  v.  McKinney,  34 
Ind.  App.  402,  73  N.  E.  148;  and  so  is  the 
obligation  to  ship  within  a  reasonable  time; 
Pennsylvania  Co.  v.  Clark,  2  Ind.  App.  146, 
27  X.  E.  586,  2S  N.  E.  20S. 

Ordinarily  parol  evidence  is  not  admissible 
in  the  absence  of  fraud  or  mistake  to  vary  a 
bill  of  lading;  Inman  &  Co.  v.  R.  Co.,  159 
Fed.  960 ;  De  Sola  v.  Pomares,  119  Fed.  373 ; 
Tallassee  Falls  Mfg.  Co.  v.  R.  R.,  117  Ala. 
520,  23  South.  139.  67  Am.  St.  Rep.  179; 
Chouteaux  v.  Leech  &  Co.,  IS  Pa.  221.  .".7  Am. 
Dec.  602 ;  Keller  v.  R.  Co.,  10  Pa.  Super.  CL 
240;  Gibbons  v.  Robinson,  63  Mich.  lie.  29 
N.  W.  533 ;  but  it  has  been  held  competent 
to  contradict  a  statement  that  the  goods  were 
received  in  apparent  good  order;  Foley  v.  R. 
Co.,  96  N.  Y.  Supp.  182 ;  and.  of  course,  in 
case  of  error  or  fraud ;  Sonia  Cotton-Oil  Co. 
v.  The  Red  River.  106  La.  42,  30  South.  303, 
S7  Am.  St  Rep.  2'.).-;;  and  it  is  said  to  make 
a  prima  facie  case  only  and  to  be  open  to  ex- 
planation; Planters'  Fertilizer  Mfg.  Co.  v. 
Elder,  101  Fed.  1001,  42  C.  C.  A.  130 ;    or  to 


BILL  OF  LADING 


356 


BILL  OF  LADING 


correct  an  omission  or  ambiguity ;  Louis- 
ville &  N.  R.  Co.  v.  Duncan,  137  Ala.  446,  34 
South.  9S8;  either  as  to  the  route;  Louis- 
ville &  N.  K.  Co.  v.  Duncan,  137  Ala.  446,  34 
South.  988 ;  or  the  time  of  arrival ;  Sloop  v. 
R.  Co.,  117  Mo.  App.  204,  84  S.  W.  111. 

Where  the  conditions  are  on  the  face  and 
in  the  body  of  the  bill  of  lading,  and  the 
consignor  receives  it  and  ships  the  goods 
without  complaint,  he  is  presumed  to  have 
assented  to  these  conditions,  and  they  be- 
come, if  not  inimical  to  law,  a  valid  con- 
tract. The  shipper's  signature  is  not  essen- 
tial ;  Inman  &  Co.  v.  R.  Co.,  159  Fed.  960 ; 
Smith  v.  Express  Co.,  108  Mich.  572,  66  N. 
W.  479;  Grace  v.  Adams,  100  Mass.  505,  97 
Am.  Dec.  117,  1  Am.  Rep.  131;  Com.  v.  R. 
Co.,  194  U.  S.  427,  24  Sup.  Ct.  663,  48  L.  Ed. 
1053. 

An  exception  in  a  bill  of  lading,  limits  the 
liability,  not  the  duty;  hence  it  is  the  duty 
of  the  owner  by  himself  and  his  servants  to 
do  all  he  can  to  avoid  the  excepted  perils; 
Bowen,  L.  J.,  in  [1891]  1  Q.  B.  619  (C.  A.). 
An  exception  of  losses  caused  by  (inter 
alia)  "pirates,  robbers,  or  thieves  of  what- 
ever kind,  whether  on  board  or  not,  by  land 
or  sea,"  did  not  apply  to  thefts  committed 
by  persons  in  the  service  of  the  ship ;  [1891] 
1  Q.  B.  619  (C.  A.). 

Exceptions  in  a  bill  of  lading  are  to  be 
construed  most  strongly  against  the  ship- 
owner. As  between  the  shipowner  and  the 
shipper,  the  bill  of  lading  only  can  be  con- 
sidered as  the  contract;  The  Caledonia,  157 
U.  S.  124,  15  Sup.  Ct,  537,  39  L.  Ed.  644. 
Under  the  Harter  Act  (q.  <v.)  there  is  pro- 
vided in  section  2  a  prohibition  of  the  in- 
sertion "in  any  bill  of  lading  or  shipping 
document"  of  any  covenant  or  agreement  re- 
tieving  the  owner  from  the  exercise  of  due 
diligence  in  equipping,  etc.,  vessels.  The 
Southwark,  191  U.  S.  1,  24  Sup.  Ct.  1,  48  L. 
Ed.  65.  Under  this  act  a  stipulation  limit- 
ing the  liability  of  a  vessel  owner  to  $100 
was  held  invalid,  not  only  under  the  Harter 
Act  but  under  the  decisions  upon  the  sub- 
ject generally;  Calderon  v.  S.  S.  Co.,  170  U. 
S.  272,  18  Sup.  Ct.  588,  42  L.  Ed.  1033.  As 
to  the  construction  of  the  Harter  Act  gener- 
ally, see  Ship. 

Though  it  is  not  necessary  that  the  ship- 
per should  sign  the  bill  of  lading,  yet  if  its 
terms  restrict  the  carrier's  common-law  lia- 
bility, his  assent  thereto  must  be  shown. 
This  assent  need  not  be  express,  it  is  suffi- 
ciently indicated  by  an  acceptance  of  the  bill 
of  lading  containing  the  restrictions;  Port. 
B.  of  L.  157 ;  Lawrence  v.  R.  Co.,  36  Conn. 
63;  Wertheimer  v.  R.  Co.,  1  Fed.  232;  Mc- 
Millan v.  R.  Co.,  16  Mich.  79,  93  Am.  Dec. 
20S;  Boorman  v.  Exp.  Co.,  21  Wis.  152;  Rob- 
inson v.  Transp.  Co.,  45  la.  476.  Where  the 
bill  contains  a  limitation  of  the  carrier's 
common  law  liability  and  is  accepted  by  the 
snipper,  there  is  a  limitation  of  the  liability 


which  binds  all  the  parties,  although  the 
shipper  could  not  read,  and  did  not  know 
of  the  limitation  in  the  bill ;  Jones  v.  R.  Co., 
S9  Ala.  376,  8  South.  61;  Grace  v.  Adams, 
100  Mass.  505,  97  Am.  Dec.  117,  1  Am.  Rep. 
131;  Nines  v.  R.  Co.,  107  Mo.  475,  18  S.  W. 
26;  Dimmitt  v.  R.  Co.,  103  Mo.  433.  15  S.  W. 
761.  See  Louisville  &  N.  R.  Co.  v.  Meyer,  78 
Ala.  597. 

A  bill  of  lading  is  usually  made  in  three 
or  more  original  parts,  one  of  which  is  sent 
to  the  consignee  with  the  goods,  one  or  more 
others  are  sent  to  him  by  different  convey- 
ances, one  is  retained  by  the  merchant  or 
shipper,  and  one  should  be  retained  by  the 
master.  Abbott,  Shipp.  217;  2  Dan.  Neg. 
Inst.  §  1735.  Where  one  is  marked  "origi- 
nal" and  the  other  "duplicate,"  the  latter  is 
in  effect  an  original;  Missouri  Pac.  R.  Co.  v. 
Heidenheimer,  82  Tex.  195,  17  S.  W.  60S,  27 
Am.  St.  Rep.  861. 

It  is  regarded  as  so  much  merchandise  of 
the  kind  covered  by  it;  Shaw  v.  R.  Co.,  101 
U.  S.  557,  25  L.  Ed.  892.  It  is  not  negotia- 
ble, but  rather  a  symbol  or  representative  of 
the  goods  themselves ;  id;  Raleigh  &  Gas- 
ton R.  Co.  v.  Lowe,  101  Ga.  320,  2S  S.  E.  867 ; 
Brown  v.  Babcock,  3  Mass.  29;  Stollenwerck 
v.  Thacher,  115  Mass.  224.  At  common  law 
it  is  quasi  negotiable;  1  T.  R.  63;  Lickbar- 
row  v.  Mason,  1  Sm.  L.  C.  1148;  National 
Bank  of  Bristol  v.  R.  Co.,  99  Md.  661,  59 
Atl.  134,  105  Am.  St.  Rep.  321 ;  and  in  many 
of  the  states  is  made  so  by  statute.  A  stat- 
ute making  bills  of  lading  negotiable  by  en- 
dorsement does  not  impart  to  them  all  the 
characteristics  of  bills  and  notes;  Shaw  v. 
R.  Co.,  101  U.  S.  557,  25  L.  Ed.  892.  The 
mere  sending  of  a  bill  of  lading  without  en- 
dorsement or  actual  delivery  of  the  goods 
to  the  consignee  does  not,  of  itself,  pass  title  ; 
Delta  Bag  Co.  v.  Kearns,  112  111.  App.  269; 
it  is  prima  facie  evidence,  but  not  conclu- 
sive ;  Harrison  v.  Hixson,  4  Blackf.  (Ind.) 
226;  but  delivery  without  endorsement  as 
security  for  advances,  or  for  a  valuable  con- 
sideration, transfers  title;  Lewis  v.  Bank, 
166  111.  311,  46  N.  E.  743;  Jeffersonville  R. 
Co.  v.  Irvin,  46  Ind.  180;  American  Zinc 
Lead  &  Smelting  Co.  v.  Lead  Works,  102 
Mo.  App.  158,  76  S.  W.  668;  National  Ne- 
wark Banking  Co.  v.  R.  Co.,  70  N.  J.  L.  774, 
58  Atl.  311,  66  L.  R.  A.  595,  103  Am.  St.  Rep. 
825;  Neill  v.  Produce  Co.,  41  W.  Va.  37, 
23  S.  E.  702.  There  may  also  be  construc- 
tive delivery;  White  Live  Stock  Commission 
Co.  v,  R.  Co.,  87  Mo.  App.  330;  Storey  v. 
Hershey,  19  Pa.  Super.  Ct.  4S5;  or  by  way 
of  estoppel  against  the  carrier  and  also 
against  the  shipper  and  endorser;  Rowley  v. 
Bigelow,  12  Pick.  (Mass.)  307,  23  Am.  Dec. 
607. 

It  is  also  assignable  by  endorsement,  where- 
by the  assignee  becomes  entitled  to  the  goods 
subject  to  the  shipper's  right  of  stoppage 
in  transitu,  in  some  cases,  and  to  various 


BILL  OF  LADING 


357 


BILL  OF  LADING 


liens;  Port.  B.  of  L.  43S;  Pollard  v.  Rear- 
don,  G5  Fed.  848,  13  C.  C.  A.  171.  See  Liens  ; 
Stoppage  in  Transitu. 

By  endorsement  to  a  vendee,  the  vendor 
transfers  the  possession  to  him  ;  People  v. 
Midkiff,  71  111.  App.  141;  and  the  property; 
Law  v.  Hatcher,  4  Blackf.  (Iml.)  364.  As 
against  the  carrier,  when  the  bill  of  lading 
is  attached  to  sight  drafts,  the  transferee  is 
entitled  to  receive  the  goods;  Walters  v.  R. 
Co.,  G6  Fed.  802,  14  C.  C.  A.  207 ;  or  to  sue 
for  wrongful  delivery ;  Tishomingo  Sav.  Inst 
v.  Johnson  (Ala.)  40  South.  503 ;  to  the  pledg- 
or without  surrender  of  the  hills ;  Chesa- 
peake S.  S.  Co.  v.  Bank,  102  Md.  589,  03 
Atl.  113;  even  when  the  bill  of  lading  did 
not  contain  the  words  "or  order";  Chicago 
&  S.  R.  Co.  v.  Bank,  20  Ind.  App.  000,  59  N. 
E.  43.  One  in  possession  under  a  bill  of 
lading  can  sue  for  conversion  against  one 
with  no  better  title ;  Adams  v.  O'Connor,  100 
Mass.  515,  1  Am.  Rep.  137.  Placing  a  car  on 
a  side  track  and  notifying  the  transferee  is 
a  sufficient  delivery ;  Anchor  Mill  Co.  v.  Ry. 
Co.,  102  la.  202,  71  N.  W.  255.  The  assignee 
of  a  bill  of  lading  as  collateral  security  for 
drafts  upon  the  consignee  is  in  a  general 
sense  the  absolute  owner  of  the  goods ;  2 
Term  03;  at  least  to  the  extent  and  until 
payment  of  the  drafts ;  Dows  v.  Bank,  91 
U.  S.  018,  23  L.  Ed.  214;  Willman  Mercan- 
tile Co.  v.  Fussy,  15  Mont.  514,  39  Pac.  738, 

48  Am.  St  Rep.  G9S;  Missouri  Pac.  R.  Co. 
v.  Law,  57  Neb.  500,  78  N.  W.  291 ;  and  the 
consignee  takes  the  goods  subject  to  the 
rights  of  the  holder  of  the  bill  of  lading  and 
cannot  set  off  the  price  against  a  debt  due 
from  the  consignor ;  Emery  v.  Bank,  25  Ohio 
St.  300,  18  Am.  Rep.  299.  But  in  Mason  v. 
Cotton  Co.,  148  N.  C.  492,  02  S.  E.  025,  18 
L.  R.  A.  (N.  S.)  1221,  128  Am.  St.  Rep.  035, 
it  was  held  that  the  right  of  such  assignee 
does  not  extend  so  far  as  to  make  him  lia- 
ble for  a  breach  of  warranty  by  the  consign- 
or in  the  sale  of  the  property,  and  the  case  in 
Finch  v.  G,regg,  120  N.  C.  170,  35  S.  E.  251, 

49  L.  R.  A.  679,  which  was  contra  (and  which 
the  Supreme  Court  of  Alabama  followed  in 
Haas  v.  Bank,  144  Ala.  502,  39  South.  129, 
1  L.  R.  A.  [N.  S.]  242,  113  Am.  St.  Rep.  01, 
and  the  Supreme  Court  of  Tennessee  refused 
to  follow  in  Leonhardt  Si  Co.  v.  Small  &  Co., 
117  Tenn.  153,  96  S.  W.  1051,  6L.R.  A.  [N. 
S.]  8S7,  119  Am.  St  Rep.  994) ,  was  expressly 
overruled  after  having  been  subjected  to  much 
criticism.  See  the  above  cited  cases,  the 
opinions  in  which  and  the  annotations  collect 
the  cases. 

But  the  assignee  obtains  by  such  assign- 
ment only  the  title  of  his  assignor,  and  the 
negotiability  is  mostly  the  quality  of  trans- 
ferability by  endorsement  and  delivery  which 
enables  the  rightful  assignee  to  sue  in  his 
own  name;  Shaw  v.  R.  Co.,  101  U.  S.  557, 
25  L.  Ed.  892 ;  Stollenwerck  v.  Thacher,  115 
Mass.  224;    Dickson  v.  Elevator  Co.,  44  Mo. 


App.  498.     It  is  only  negotiable  so  far  that  the 
owner  may  transfer  it  by  endorsement  or  as- 
signment so  as  to  vest  the  legal  title  in  the 
assignee;    Douglas   v.   Bank,  86   Ky.    1 
S.  \\  .  420,  9  Am.  St.  Rep.  27ft 

Delivery  of  a  bill  of  lading  is  delivery  of 
the  property;    Forbes  v.   R.   Co.,   133 
154;    but  the  transfer  from  one  who  v. 
fully  attains  it,  having  no  title  to  the 
erty  shipped,   passes  no  title  as  against  the 
true  owner ;    Merchants'  Nat.  Bank  v.  Bales, 
148  Ala.  279,  41  South.  510;    and  the  trans- 
fer by  endorsement  of  a  bill  of  lading,  drawn 
to  the  shipper's  order,  vests  the  title  to  the 
goods  in  the  transferee,  as  purchaser  or  pled- 
gee,  as  the   case  may   be ;     Scheuermann   v. 
Fruit  Co.,  123  La.  55,  48  South.  017. 

It  is  considered  to  partake  of  the  character 
of  a  written  contract,  and  also  of  that  of  a 
receipt;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v. 
Knight,  122  U.  S.  79,  7  Sup.  Ct.  1132,  30  L. 
Ed.  1077  ;  Schoul.  Pers.  Prop.  40S ;  The  Mis- 
souri v.  Webb,  9  Mo.  193 ;  Mears  v.  R.  Co., 
75  Conn.  171,  52  Atl.  610,  50  L.  R.  A.  884, 
90  Am.  St.  Rep.  192 ;  Chicago  &  N.  W.  Ry. 
Co.  v.  Simon,  1G0  111.  048,  43  N.  E.  590.  In 
so  far  as  it  admits  the  character,  quality,  or 
condition  of  the  goods  at  the  time  they  were 
received  by  the  carrier,  it  is  a  mere  receipt, 
and  the  carrier  may  explain  or  contradict  it 
by  parol;  Missouri  Pac.  R.  Co.  v.  McFad- 
den,  154  U.  S.  155,  14  Sup.  Ct.  990,  38  L. 
Ed.  944;  Fasy  v.  Nav.  Co.,  77  App.  Div.  469, 
79  N.  Y.  Supp.  1103,  affirmed  without  opin- 
ion Fasy  v.  Nav.  Co.,  177  N.  Y.  591,  70  X. 
E.  1098;  Baltimore  &  O.  R.  Co.  v.  Wilkens, 
44  Md.  11,  22  Am.  Rep.  2G;  but  as  n- 
the  agreement  to  carry  and  deliver,  it  is 
a  contract,  and  must  be  construed  accord- 
ing to  its  terms;  Ellis  v.  Willard,  9  N, 
Y.  529;  White  v.  Van  Kirk,  25  Barb.  (N. 
Y.)  10;  1  Abb.  Adm.  209.  397;  Louisville  & 
N.  R.  Co.  v.  Fulgham,  91  Ala.  555,  S  South. 
803;  Snow  v.  R.  Co.,  109  Ind.  422,  9  N.  EL 
702 ;  Portland  Flouring  Mills  Co.  v.  Ins.  Co., 
130  Fed.  800,  05  C.  C.  A.  344,  affirming  British 
&  Foreign  Marine  Ins.  Co.  v.  Mills  Co.,  124 
Fed.  S55.  And  see  Rhodes  v.  Newhall,  12b" 
N.  Y.  574,  27  N.  E.  947,  22  Am.  St  Rep.  859. 

One  who  receives  it  without  objection  is 
presumed  to  have  assented  to  its  terms;  Cox 
v.  R.  Co.,  170  Mass.  129,  49  N.  E.  97;  mere 
ignorance  from  failure  to  read  or  ascertain 
them  is  not  sufficient  in  the  absence  of  fraud 
or  concealment;  Schaller  v.  Ry.  Co.,  '.»7  Wis. 
31,  71  N.  W.  1042.  Reasonable  doubt  as  to 
the  construction  of  its  printed  terms  is  re- 
solved against  the  carrier;  Baltimore  &  O. 
R.  Co.  v.  Doyle,  142  Fed.  669,  74  C.  C.  A. 
245,  affirming  Doyle  v.  R.  Co.,  120  Fed.  841. 
Where  a  bill  of  lading  is  given,  and  accepted 
without  objection,  it  is  the  real  contract  by 
which  the  mutual  obligations  of  the  parties 
is  to  be  governed  and  not  any  prior  agree- 
ment ;   The  Caledonia,  43  Fed.  6S1. 

Stipulations  stamped  on  it  before  delivery 


BILL  OF  LADING 


358 


BILL  OF  LADING 


are  part  of  the  contract ;  The  Henry  B. 
Hyde,  82  Fed.  681.  And  one  in  a  bill  of  lad- 
ing that  all  claims  for  damages  must  be  pre- 
sented within  30  days  from  its  date  is  rea- 
sonable; The  Queen  of  the  Pacific,  ISO  U. 
S.  49,  21  Sup.  Ct.  278,  45  L.  Ed.  419;  as  is 
also  an  exemption  of  loss  by  fire  though  the 
regular  freight  rates  were  charged;  Arthur 
v.  R.  Co.,  204  U.  S.  506,  27  Sup.  Ct.  338,  51 
L.  Ed.  590.  In  an  action  against  a  carrier 
for  damages  to  property  transported  the 
shipper  cannot  set  up  a  special  contract  and 
recover  on  an  implied  one,  nor  can  he  rely 
on  a  parol  agreement  and  recover  on  proof 
of  a  written  contract;  Evansville  &  T.  H.  R. 
Co.  v.  McKinney,  34  Ind.  App.  402,  73  N.  E. 
148. 

A  clean  bill  of  lading  is  one  which  con- 
tains nothing  in  the  margin  qualifying  the 
words  in  the  bill  of  lading  itself;  61  Law 
T.  330.  Under  a  "clean"  bill  of  lading  in 
the  usual  form  (viz.,  one  having  no  stipula- 
tion that  the  goods  shipped  are  to  be  carried 
on  deck),  there  is  a  contract  implied  that 
the  goods  shall  be  carried  under  the  deck; 
and  parol  evidence  to  the  contrary  will  not 
be  received;  Creery  v.  Holly,  14  Wend.  (N. 
Y.)  26;  Sayward  v.  Stevens,  3  Gray  (Mass.) 
97;  The  Governor  Carey,  2  Hask.  4S7,  Fed. 
Cas.  No.  5,G45a  ;  but  evidence  of  a  well-known 
and  long-established  usage  is  admissible,  and 
will  justify  the  carriage  of  goods  on  deck, 
though,  under  a  general  rule,  the  party  re- 
lying on  a  local  custom  must  prove  it  by  clear 
and  conclusive  evidence;  The  Paragon,  1 
Ware  322,  Fed.  Cas.  No.  10,708. 

SeeCABEiEBs;    Freight;    Shipping;   Hart- 
ee  Act. 

It  was  decided  in  England  that  the  master 
of  a  ship  who   signed  a  bill  of  lading  for 
goods  which  had  never  been  received  was  not 
to  be  regarded  as  the  agent  of  the  owner  so 
as  to  make  the  latter  responsible;    10  C.  B. 
665.    This  decision  was  immediately  followed 
by  an  act  of  Parliament,  which  makes  clear 
the  right  of  a  holder  for  valuable  considera- 
tion of  such  a  bill  of  lading  as  against  the 
master  or  other  person  signing  the  bill,  un- 
less the  holder  of  the  bill  had  notice  that  the 
goods  had  not  been  taken  on  board;    18  & 
19  Vict.     The  statute  makes  the  bill  conclu- 
sive against  the  person  who  signed  the  docu- 
ment;   18  Q.  B.  D.  147.    As  far  as  the  ship- 
owner or  other  principal  of  the  agent  issuing 
the  document  is  concerned,   the  law  of  the 
first  decision  has  been  constantly  followed  in 
England;     [1902]   A.    C.    117;     Scotland;     25 
Sc.  L.  Rep.  112;   and  Canada;    5  Duval  179. 
In  the  United  States  the  question  has  given 
rise  to  great  difference  of  opinion.     Most  of 
the  cases  relate  to  bills  of  lading  issued  by 
station    agents    of    railroads.      The    English 
rule   has   been  followed   in   Missouri   P.   R. 
Co.  v.  McFadden,  154  U.  S.  155,  14  Sup.  Ct. 
990,  38  L.  Ed.  944 ;  Friedlander  v.  R.  Co.,  130 
U.    S.   416,  9    Sup.    Ct.   570,   32   L.    Ed.    991; 
Pollard  v.  Vinton,   105  U.    S.   7,   26  L.   Ed. 


998;    Clark  v.  S.  S.  Co.,  14S  Fed.  243;    The 
I  sola  Di  Procida,  124  Fed.  942;  The  Asphodel, 
53  Fed.  835;    Martin  v.  Ry.  Co.,  55  Ark.  510, 
19  S.  W.  314;    National  Bank  of  Commerce 
v.  R.  Co.,  44  Minn.  224,  46  N.  W.  342,  560, 
9  L.  R.  A.  263,  20  Am.  St.  Rep.  566;    Haz- 
ard  v.   R.   Co.,   67  Miss.  32,   7   South.  280; 
Louisiana  Nat.  Bank  v.  Laveille,  52  Mo.  380; 
Williams  v.  R.  Co.,  93  N.  C.  42,  53  Am.  Rep. 
450;    Anderson  v.  Mills  Co.,  37   Or.  483,  60 
Pac.  839,  50  L.  R.  A.  235,  82  Am.  St.  Rep. 
771;    Roy  &  Roy  v.  R.  Co.,  42  Wash.  572,  85 
Pac.  53,  6  L.  R.  A.  (N.  S.)  302,  7  Ann.  Cas. 
728.     Other    cases   hold   that   as   against   a 
bona  fide  purchaser  the  principal  is  estopped; 
Jasper  Trust  Co.  v.  R.  Co.,  99  Ala.  416,  14 
South.  546,  42  Am.   St.  Rep.  75;    Relyea  v. 
Mill  Co.,  42  Conn.  579;    Wichita  Sav.  Bank 
v.  R.  Co.,  20  Kan.  519;    Sioux  City  &  Pac.  R. 
Co.  v.  Bank,  10  Neb.  556,  7  N.  W.  311,  35 
Am.  Rep.  488;    Armour  v.  R.  Co.,  65  N.  Y. 
Ill,  22  Am.  Rep.  603 ;   Brooke  v.  R.  Co.,  108 
Pa.  529,  1  Atl.  206,  56  Am.  Rep.  235;   Watson 
v.  R.  Co.,  9  Heisk.  (Tenn.)  255.     In  countries 
where    the    civil    law    prevails,    the   carrier 
would   generally  be  held  liable;    25   Sc.    L. 
Rep.  112;   French  Commercial  Code,  art.  283; 
and    the   same   is   copied    in   Belgium,    Hol- 
land, Italy,  Spain,  Mexico  and  many  Central 
and  South  American  countries;    34  Reichs- 
gericht  79. 

As  against  the  consignee,  the  bill  of  lading 
is  not  conclusive  as  to  the  quantity  of  goods 
received,  though  of  great  weight;  the  ship 
may  show  that  she  delivered  all  the  cargo 
she  received ;  James  v.  Oil  Co.,  191  Fed.  827, 
112  C.  C.  A.  341. 

There  are  statutes  in  many  states  making 
it  a  criminal  offence  for  any  agent  of  a  car- 
rier  to   issue  documents   of  title  when   the 
goods  have  not  been  received.     Such  provi- 
sion is  in  the  Uniform  act.    An  act  to  make 
uniform  the  law  of  bills  of  lading  has  been 
passed  in  Illinois,  Iowa,  Massachusetts,  Mary- 
land,  New   York,    Ohio,    Pennsylvania,   Con- 
necticut, New  Jersey,  Louisiana  and  Alaska. 
Its  chief  provisions  make  bills  of  lading 
non-negotiable  or  straight  bills,  and  negotia- 
ble or  order  bills.     Negotiable  bills  must  not 
be  issued  in  sets.     Duplicate  as  well  as  non- 
negotiable   bills    must   be   so   marked.     The 
insertion  of  the  name  of  the  person  to  be 
notified  does  not  affect  the  negotiability  of 
the  bill.    Upon  receipt  of  the  bill,  if  consign- 
or makes  no  objection,   he  and  those  after 
him  are  bound  by  its  terms.    Negotiable  bills 
must  be  cancelled  when  goods  are  delivered, 
and  if  not  the  carrier  is  liable  to  a   bona 
fide  purchaser  of  the  bill  without  notice  of 
the  delivery.     Such  bills  must  be  so  marked 
when  a  part  is  delivered.     Any  alteration  of 
a  bill  without  consent  is  void  and  the  bill 
is  enforceable  according  to  its  original  tenor. 
In  the  cases  of  lost  or   destroyed  bills  the 
court  may  order  delivery  upon  sufficient  proof 
and  the  giving  of  a  bond.     The  carrier  has 
reasonable  time  to  ascertain  the  validity  of 


BILL  OF  LADING 


359 


BILL  OF  MIDDLi 


claims,  but  an  adverse  title  is  no  defence  to 
the  consignee  of  a  non-negotiable  bill  or  to 
the  holder  of  a  negotiable  bill  unless  enforced 
by  legal  process.  The  issuance  of  a  bill, 
where  no  goods  have  been  received  by  an 
agent  whose  actual  or  apparent  authority  in- 
cludes the  issuing  of  bills  of  lading,  makes 
the  carrier  liable  to  one  who  has  given  value 
in  good  faith  relying  upon  the  description 
therein  of  the  goods.  The  carrier  may,  by 
inserting  the  words  "shipper's  load  and 
count"  or  such  like  words,  indicate  that  the 
goods  were  loaded  by  the  shipper  and  the 
description  made  by  him;  and  if  such  Is  the 
case  the  carrier  shall  not  be  liable  for  dam- 
ages caused  by  improper  loading,  non-receipt 
or  mis-description  of  the  goods.  If  goods  are 
under  negotiable  bills  then  one  cannot  'at- 
tach or  levy;  the  remedies  are  to  reach  tin- 
bills.  The  carrier  has  a  lien  for  his  charges; 
but  this  must  be  stated  on  the  bill.  Negotia- 
tion may  be  by  delivery  or  endorsement  and 
the  rights  of  the  holder  are  substantially  the 
same  as  the  holder  of  a  negotiable  note  or 
bill  of  exchange.  The  endorser  is  not  a  guar- 
antor but  is  held. to  give  the  usual  warran- 
ties. One  who  holds  a  bill  as  security,  and, 
receiving  payment  of  the  debt,  transfers  the 
bill,  shall  not  be  deemed  a  guarantor.  The 
manner  in  which  the  bill  is  drawn  may  in- 
dicate the  rights  of  the  buyer  and  seller.  If 
the  seller  sends  a  bill  with  a  sight  draft  at- 
tached, the  buyer  is  bound  to  honor  the  draft 
in  order  to  secure  any  rights  under  the  bill, 
but  if  the  buyer  transfers  it  to  a  bona  fide 
nolder  in  due  course,  the  latter  is  protected. 
Negotiation  defeats  the  vendor's  lien  in  the 
case  of  an  order  bill.  Issuing  a  bill,  where 
goods  have  not  been  received,  is  a  criminal 
offence.  It  is  likewise  a  criminal  offence  for 
a  person  to  ship  goods  to  which  he  has  no 
title  or  upon  which  there  exists  any  lien, 
and  where  one  takes  an  order  bill  which 
he  negotiates  with  intent  to  deceive.  Induc- 
ing a  carrier  to  issue  bill,  when  the  person 
knows  the  carrier  has  not  received  the  goods, 
is  criminal.  Any  person  who  with  intent  to 
defraud  issues  or  aids  in  issuing  a  non-ne- 
gotiable bill,  without  the  words  "not  nego- 
tiable" placed  plainly  upon  the  face,  shall  be 
guilty  of  a  crime.  England  has  a  similar 
act. 

BILL  OF  MIDDLESEX.  A  fiction  by 
which  the  King's  Bench  acquired  jurisdiction 
in  ordinary  civil  suits.  The  court  could  pro- 
ceed by  bill  against  certain  officials  of  the 
court,  or  against  any  persons  accused  of 
contempts,  deceits  or  trespasses.  But  this 
process  did  not  apply  in  actions  of  debt,  det- 
inue, account  or  covenant.  A  method  was 
found  in  the  fact  or  fiction  of  the  custody  of 
the  marshal.  It  was  held  that  a  mere  rec- 
ord on  the  rolls  of  the  court  that  the  defend- 
ant had  given  bail  would  be  sufficient  evi- 
dence of  actual  custody.  To  get  this  evi- 
dence   on   record   a    bill    of   Middlesex    was 


filed  stating  that  the  defendant  was  guilty 
of  trespass  vi  et  axmis — an  offence  falling 
properly  within  the  jurisdiction  of  the  court. 
The  plaintiff  gave  pledges  for  the  pr< 
tion  which,  even  in  Coke's  day,  were  John 
Doe  and  Richard  Roe.  The  sheriff  of  Mid- 
dlesex was  then  directed  to  produce  the  de- 
fendant to  answer  the  plaintiff  of  a  plea  of 
trespass.  If  the  sheriff  inade  return  to  the 
bill  of  "non  est  inventus,"  a  writ  of  latitat 
was  issued  to  the  sheriff  of  an  adjoining 
county.  This  recited  the  bill  of  Midd 
and  the  proceedings  thereon  and  stated  that 
the  defendant  "latitat  et  discurrit"  in  the 
county  and  directed  the  sheriff  to  catch  him. 
If  the  defendant  did  not  live  in  Middlesex, 
the  latitat  was  the  first  step  taken.  If  the 
defendant  appeared,  the  court  obtained  ju- 
risdiction; if  not,  the  plaintiff  could  enter 
an  appearance  for  him  and  give  as  sureties 
John  Doe  and  Richard  Roe.  This  was  called 
"common  bail."  In  certain  cases  substan- 
tial bail  was  required;  this  was  called 
cial  bail." 

The  above  process  did  not  set  forth  the 
true  cause  of  action.  That  was  added  by  the 
so-called  "cc  etiam''  clause  staling  the  true 
cause  of  action.  The  supposed  trespass  gave 
jurisdiction;  the  real  cause  of  action  in  the 
"ac  etiam"  clause  authorized  the  arrest  in 
default  of  "special  bail."  These  fictions  were 
abolished  by  2  Will.  IV.  c.  39.  See  1  Holdsw. 
Hist.  E.  L.%  87.  The  "ncc  non1'  clause  was 
used  as  a  like  fiction  to  give  jurisdiction  in 
certain  cases  to  the  Common  Pleas. 

BILL  OF  MORTALITY.  A  written  state- 
ment or  account  of  the  number  of  deaths 
which  have  occurred  in  a  certain  district 
within  a  given  time. 

See  Vital  Statistics. 

BILL    OF    PAINS    AND    PENALTIES.      A 

special  act  of  the  legislature  which  indicts  a 
punishment  less  than  death  upon  persons  sup- 
posed to  be  guilty  of  high  offences,  such  as 
treason  and  felony,  without  any  conviction  in 
the  ordinary  course  of  judicial  proceedings. 
2  Woodd.  Lect.  625.  It  differs  from  a  bill  of 
attainder  in  this,  that  the  punishment  in- 
flicted by  the  latter  is  death.  The  clause  in 
the  constitution  prohibiting  bills  of  attainder 
includes  bills  of  pains  and  penalties ;  Story, 
Const.  §  1338;  Hare,  Am.  Const  L.  549; 
Cummings  v.  Missouri,  4  Wall.  (U.  SJ 
IS  L.  Ed.  356;  Ex  parte  Law,  35  Ga 
300,  Fed.  Cas.  No.  8,126.  See  Fletcher  v. 
Peck,  6  Cra.  (U.  S.)  13S,  3  L.  Ed.  162. 

BILL  OF  PARCELS.  An  account  contain- 
ing in  detail  the  names  of  the  items  which 
compose  a  parcel  or  package  of  goods.  It  is 
usually  transmitted  with  the  goods  to  the 
purchaser,  in  order  that  if  any  mistake  has 
been  made  it  may  be  corrected. 

BILL  OF  PARTICULARS.  A  detailed  in- 
formal statement  of  a  plaintiff's  cause  of  ac- 
tion, or  of  the  defendant's  set-off.     It  is  an 


BILL  OF  PARTICULARS 


360 


BILL  OF  PARTICULARS 


account  of  the  items  of  the  claim,  and  shows 
the  manner  in  which  they  arose. 

The  plaintiff  is  required,  sometimes  under 
statutory  provisions,  which  vary  widely  in 
the  different  states,  to  file  a  bill  of  particu- 
lars, either  in  connection  with  his  declara- 
tion; Com.  v.  Giles,  1  Gray  (Mass.)  466; 
Moore  v.  Mauro,  4  Rand.  ( Va.)  4S8 ;  Landon 
v.  Sage,  11  Conn.  302 ;  Soria  v.  Bank,  3  How. 
(Miss.)  46;  Cregier  v.  Smyth,  1  Speers  (S. 
C.)  298;  or  subsequently  to  it,  upon  request 
of  tbe  other  party;  Davis  v.  Hunt,  2  Bail. 
(S.  C.)  416;  Brown  v.  Calvert,  4  Dana  (Ky.) 
219;  Watkina  v.  Brown,  5  Ark.  197;  Mc- 
Creary  v.  Hood,  5  Blackf.  (Ind.)  316;  Wil- 
liams v.  Sinclair,  3  McLean  2S9,  Fed.  Cas. 
No.  17,737;  Dennison  v.  Smith,  1  Cal.  437; 
upon  an  order  of  the  court,  in  some  cases; 
Constable  v.  Hardenbergh,  76  Hun  434,  27 
N.  Y.  Supp.  1022;  in  others,  without  such 
order. 

He  need  not  give  particulars  of  matters 
which  he  does  not  seek  to  recover;  4  Exch. 
4S6;  nor  of  payments  admitted;  Williams 
v.  Shaw,  4  Abb.  Pr.  (N.  Y.)  209.  See  6  Dowl. 
&  L.  656. 

The  plaintiff  is  concluded  by  the  bill  when 
fded ;  Hall  v.  Sewell,  9  Gill  (Md.)  146 ;  and 
where  he  gives  notice  at  the  trial  that  he 
intends  to  rely  only  upon  the  count  for  an 
account  stated,  the  notice  operates  as  an 
amendment  of  the  pleadings  and  an  abandon- 
ment of  the  bill  of  particulars ;  'Waidner  v. 
Pauly,  141  111.  442,  30  N.  E.  1025. 

The  defendant,  in  giving  notice  or  plead- 
ing set-off,  must  give  a  bill  of  particulars; 
failing  to  do  which,  he  will  be  precluded 
from  giving  any  evidence  in  support  of  it  at 
the  trial;  Starkweather  v.  Kittle,  17  Wend. 
(N.  Y.)  20;  Harding  v.  Griffin,  7  Blackf. 
(Ind.)  462;  Rice's  Ex'r  v.  Annatt's  Adm'r,  8 
Gratt.    (Va.)   557. 

The  court  may  order  the  defendant  to  file 
a  bill  of  particulars  where  he  alleges  matter 
by  way  of  counterclaim ;  Peabody  v.  Cor- 
tada,  64  Hun  632,  18  N.  Y.  Supp.  622 ;  where 
the  defence  is  payment  it  will  not  be  requir- 
ed ;  Moody  v.  Belden,  60  Hun  582,  15  N.  Y. 
Supp.   119. 

The  bill  must  be  as  full  and  specific  as  the 
nature  of  the  case  admits  in  respect  to  all 
matters  as  to  which  the  adverse  party  ought 
to  have  information ;  16  M.  &  W.  773 ;  but 
need  not  be  as  special  as  a  count  on  a  special 
contract.  The  object  is  to  prevent  surprise ; 
Chesapeake  &  O.  Canal  Co.  v.  Knapp,  9  Pet. 
(U.  S.)  541,  9  L.  Ed.  222 ;  Smith  v.  Hicks,  5 
Wend.  (N.  Y.)  51 ;  Watkins  v.  Brown,  5  Ark. 
197.  If  the  bill  is  not  sufficiently  explicit, 
application  should  be  made  to  the  court  for 
a  more  specific  one,  as  the  objection  cannot 
be  made  on  the  trial;  Buckeye  Tp.  v.  Clark, 
90  Mich.  432,  51  N.  W.  528;  Minneapolis 
Envelope  Co.  v.  Vanstrom,  51  Minn.  512,  53 
N.  W.  768. 

It  is  not  error  to  refuse  to  strike  out  part 


of  a  bill  of  particulars ;    Lewis  v.  Godman, 
129  Ind.  359,  27  N.  E.  563. 

According  to  ancient  practice,  a  defect  in 
a  pleading  in  a  divorce  suit  may  in  some 
states,  and  in  England,  be  cured  by  filing  a 
bill  of  particulars;  but  this  will  not  supply 
the  want  of  a  more  definite  allegation ;  12 
P.  D.  19;  Realf  v.  Realf,  77  Pa.  31;  Har- 
rington v.  Harrington,  107  Mass.  329 ;  San- 
ders v.  Sanders,  25  Vt.  713.  This  is  not  prop- 
er under  the  Code  system,  however ;  and  has 
been  abandoned  in  the  Code  states,  except 
New  York ;  Freeman  v.  Freeman,  39  Minn. 
370,  40  N.  W.  167.  See  Mitchell  v.  Mitchell, 
61  N.  Y.  398;  Carpenter  v.  Carpenter,  17  N. 
Y.  Supp.  195. 

BILL  OF  PEACE.  In  Equity  Practice. 
One  which  is  filed  when  a  person  has  a  right 
which  may  be  controverted  by  various  per- 
sons, at  different  times,  and  by  different  ac- 
tions. It  is  necessary  to  allege  that  the  com- 
plainant is  in  possession  or  that  both  parties 
are  out  of  possession ;  Boston  &  M.  Consol. 
Copper  &  S.  Mining  Co.  v.  Ore  Co.,  188  U.  S. 
632,  23  Sup.  Ct.  434,  47  L.  Ed.  626. 

In  such  a  case,  the  court  will  prevent  a 
multiplicity  of  suits  by  directing  an  issue  to 
determine  the  right  and  ultimately  grant 
an  injunction;  1  Madd.  Ch.  Pr.  166;  2  Story, 
Ecu  Jur.  §  852;  Eldridge  v.  Hill,  2  Johns. 
Ch.  (N.  Y.)  281 ;  The  Thomas  Gibbons,  8  Cra. 
(U.  S.)  426,  3  L.  Ed.  610;  L.  R.  2  Ch.  8; 
Bisph.  Eq.  415.  Such  a  bill  cannot  usually 
be  maintained  until  the  right  of  the  com- 
plainant has  been  established  at  law ;  Bisph. 
Eq.  §  417 ;  and  it  must  be  filed  on  behalf  of 
all  who  are  interested  in  establishing  the 
right ;    id. 

Another  species  of  bill  of  peace  may  be 
brought  when  the  plaintiff,  after  repeated 
and  satisfactory  trials,  has  established  his 
right  at  law,  and  is  still  in  danger  of  new 
attempts  to  controvert  it.  In  order  to  quiet 
the  possession  of  the  plaintiff,  and  to  sup- 
press future  litigation,  equity  will  grant  a 
perpetual  injunction;  Eldridge  v.  Hill,  2 
Johns.  Ch.  (N.  Y.)  281;  Alexander  v.  Pen- 
dleton, 8  Cra.  (U.  S.)  462,  3  L.  Ed.  624; 
Mitf.  Eq.  143;  Primm  v.  Raboteau,  56  Mo. 
407;  Douglass  v.  McCoy,  5  Ohio  522.  A  bill 
will  lie  to  enjoin  a  defendant  from  interfer- 
ing with  plaintiff's  tenants;  Polk  v.  Rose, 
25  Md.  153,  89  Am.  Dec.  773.  A  bill  to  quiet 
title  can  be  filed  only  by  a  party  in  posses- 
sion, against  a  defendant  who  has  been  in- 
effectually seeking  to  establish  a  legal  title 
by  repeated  actions  of  ejectment;  and  as  a 
prerequisite  to  such  bill  it  is  necessary  that 
the  plaintiff's  title  should  have  been  estab- 
lished by  at  least  one  .successful  trial  at  law ; 
Wehrman  v.  Conklin,  155  U.  S.  314,  15  Sup. 
Ct.  129,  39  L.  Ed.  167.  See  Bill  Quia  Tim- 
et; Bill  to  Quiet  Possession. 

A  community  of  interest  in  the  law  and 
fact  involved  is  enough  on  which  to  found  a 
bill  of  peace;   Crawford  v.  R.  Co.,  S3  Miss. 


BILL  OF  PLACE 


361 


BILL  OF  REVIEW 


70S,  36  South.  82,  102  Am.  St.  Rep.  47G; 
contra  Ducktown  Sulphur,  Copper  &  Iron  Co. 
v.  Fain,  109  Tenn.  56,  70  S.  W.  813. 

For  violation  of  a  city  ordinance  requiring 
street  railroads  under  penalty,  to  furnish 
suflicient  cars  to  prevent  overcrowding,  etc., 
the  appellant  had  begun  in  the  justice's  court 
sixty  suits  agaiust  one  appellee,  and  a  hun- 
dred against  the  other,  and  was  threatening 
more.  The  two  appellees,  for  themselves 
and  others  similarly  situated,  filed  a  bill  of 
peace  to  have  the  suits  enjoined  on  the 
ground  that  the  ordinance  was  unconstitu- 
tional. It  was  held  a  bill  of  peace  would  not 
lie ;  Chicago  v.  Ry.  Co.,  222  111.  5G0,  78  N.  E. 
890. 

BILL  OF  PRIVILEGE.  In  English  Law. 
The  form  of  proceeding  against  an  attorney 
of  the  court,  who  is  not  liable  to  arrest. 
Brooke,  Abr.  Bille;  12  Mod.  163. 

It  is  considered  a  privilege  for  the  benefit 
of  clients;  4  Burr.  2113;  Dougl.  381;  and 
is  said  to  be  confined  to  such  as  practise;  2 
Maule  &  S.  G05.  But  see  1  Bos.  &  P.  4;  2 
Lutw.  1667.     See  3  Sharsw.  Bla.  Com.  289. 

BILL  OF  PROOF.  The  claim  made  by  a 
third  person  to  the  subject-matter  in  dis- 
pute between  the  parties  to  a  suit  in  the 
court  of  the  mayor  of  London.  2  Chitty,  Pr. 
492;    1  Marsh.  233. 

BILL  OF  REVIEW.  One  which  is  brought 
to  have  a  decree  of  the  court  reviewed,  al- 
tered, or  reversed. 

It  is  only  brought  after  enrollment;  1  Ch.  Cas.  54  ; 
3  P.  Will.  371;  Simpson  v.  Downs,  5  Rich.  Eq.  (S. 
C.)  421;  1  Story,  Eq.  PI.  §  403;  and  is  thus  distin- 
guished from  a  bill  in  the  nature  of  a  bill  in  re- 
view, or  a  supplemental  bill  in  the  nature  of  a  bill 
in  review ;  Dexter  v.  Arnold,  5  Mas.  303,  Fed.  Cas. 
No.  3856;  Greenwich  Bank  v.  Loomis,  2  Sandf.  Ch. 
(N.  Y.)   70;    Gilbert,   For.   Rom.  c.  10,  p.   182. 

It  must  be  brought  either  for  error  in  point 
of  law;  Wiser  v.  Blachly,  2  Johns.  Ch.  (N. 
•Y.)  4S8;  Cooper,  Eq.  PI.  89;  or  for  some 
new  matter  of  fact,  relevant  to  the  case,  dis- 
covered since  publication  passed  in  the  cause, 
and  which  could  not,  with  reasonable  dili- 
gence, have  been  discovered  before ;  Irwin  v. 
Meyrose,  7  Fed.  533;  Putnam  v.  Day,  22 
Wall.  (U.  S.)  60,  22  L.  Ed.  764 ;  Buffington  v. 
Harvey,  95  U.  S.  99,  24  L.  Ed.  381 ;  Wiser  v. 
Blachly,  2  Johns.  Ch.  (N.  Y.)  488 ;  see  U.  S. 
v.  Samperyac,  1  Hempt.  118,  Fed.  Cas.  No. 
16,216  c;  Stevens  v.  Dewey,  27  Vt.  638;  Foy 
v.  Foy,  25  Miss.  207;  Cocke  v.  Copenhaver, 
126  Fed.  145,  61  C.  C.  A.  211 ;  Hill  v.  Phelps, 
101  Fed.  650,  41  C.  C.  A.  569 ;  or  to  correct 
an  error  apparent  on  the  face  of  a  decree  in 
the  original  suit;  Osborne  v.  Land  &  Town 
Co.,  178  U.  S.  22,  20  Sup.  Ct.  860,  44  L.  Ed. 
961 ;  where  there  are  no  disputed  questions 
of  fact;  Smyth  v.  Fitzsimmons,  97  Ala.  451, 
12  South.  48. 

If  based  on  newly  discovered  evidence  it 
requires  leave  of  court ;  Buckingham  v. 
Corning,  29  N.  J.  Eq.  238:  Barton  v.  Bar- 
bour, 104  U.  S.  126,  26.  L.  Ed.  672 ;   Reynolds 


v.  R.  Co.,  42  Fla.  387,  28  South.  861 ;  Florida 
Cent.  &  P.  R.  Co.  v.  Reynolds,  183  U.  S.  471, 
22  Sup.  Ct.  176,  46  L.  Ed.  283;    the  evi  . 
must  be  new  or  else  such  as  the  party  could 
not  by  diligence  have  known,  and  failure  to 
produce    it    sooner    must    be    explained ;     it 
must  be  controlling,  not  cumulative;    Acord 
v.  Corporation,  15G  Fed.  9S9;    Kern  v.  Wyatt 
&  Co.,  89  Va.  885,  17  S.  E.  549.    Granting  it 
is  discretionary  with  the  court,  and   Is 
ject  to  review;    Reynolds  v.  R.  Co..  42 
387,  28  South.  861 ;  Florida  Cent  &  P.  I; 
v.  Reynolds,  183  U.  S.  471,  22  Sup.  Ct.  176, 
46  L.  Ed.  283;   it  will  be  refused  for  laches; 
Taylor  v.  Easton,  180  Fed.  363,  103  C.  C.  A. 
509;    or  if  granting  it  would  work  hardship 
to   innocent   parties ;    Acord   v.   Corporation, 
156  Fed.  989;    Ricker  v.  Powell,  100   D.   S. 
104,  25  L.  Ed.  527 ;  if  it  is  based  upon  fraud 
it  is  a  matter  of  right ;   Cox  v.  Bank  (Tenn.) 
63  S.   W.  237;    so  if  filed  for  error  of  law 
appearing  on  the  face  of  the  record;    Wood 
v.  Wood,  59  Ark.  441,  27  S.  W.  641,  28  L.  R. 
A.  157,  43  Am.  St.  Rep.  42;    Denson  v.  Den- 
son,  33  Miss.  560;    a  bill  may  join  both  error 
in  law  and  newly  discovered  evidence ;  Acord 
v.  Corporation,  156  Fed.  989.     It  is  held  that 
if  for  error  of  law,  it  must  be  filed  within 
the  time  of  appeal ;   Jorgenson  v.  Young,  136 
Fed.  37S,  69  C.  C.  A.  222 ;   Taylor  v.  Easton, 
ISO  Fed.  363,  103  C.  C.  A.  509 ;   and  for  newly 
discovered    evidence,    within    a     reasonable 
time;    Camp   Mfg.   Co.   v.   Parker,   121   Fed. 
195 ;    within    two   months  after  decree   was 
held    in    time ;     Bruschke    v.     Yerein,     145 
111.   433,  34  N.   E.   417.     The  practice  is  to 
petition  for  leave  if  leave  be  necessary  ;  Mas- 
sie  v.  Graham,  Fed.  Cas.  No.  9,263.    Granting 
leave   does  not  prejudge  the   case   at   final 
hearing;    Hopkins  v.  Hebard,  194  Fed.  301, 
114  C.  C.  A.  261. 

A  rehearing  upon  the  ground  that  the 
court  had  overlooked  a  controlling  fact  (not 
brought  to  its  attention  by  counsel)  was  re- 
fused in  Moneyweight  Scale  Co.  v.  Scale  Co., 
199  Fed.  905,  118  C.  C.  A.  235. 

Application  after  judgment  in  the  appel- 
late court  must  be  made  in  that  court ;  Kings- 
bury  v.  Buckner,  134  U.  S.  650,  10  Sup.  Ct 
638,  33  L.  Ed.  1047;  Camp  Mfg.  Co.  v.  Park- 
er, 121  Fed.  195 ;  Keith  v.  Alger,  124  Fed.  32, 
59  C.  C.  A.  552. 

Where  one  proceeds  to  a  decree  after  dis- 
covering facts  on  which  a  new  claim  is 
founded,  he  cannot  afterwards  file  a  supple- 
mental bill  in  the  nature  of  a  bill  of  review 
on  such  new  facts;  Hood  v.  Green,  42  111. 
App.  664. 

BILL  OF  REVIVOR.  One  which  is 
brought  to  continue  a  suit  which  has  abated 
before  its  final  consummation,  as,  for  ex- 
ample, by  death,  or  marriage  of  a  female 
plaintiff.  It  is  not  the  commencement  of  a 
new  suit,  but  a  continuation  of  the  old  one ; 
Clarke  v.  Mathewson,  12  Pet.  (U.  S.)  164.  9 
L.  Ed.  104L 


BILL  OF  REVIVOR 


362 


BILL  OF  RIGHTS 


Under  the  new  Supreme  Court  equity  rule 
35  (33  Sup.  Ct.  xxviii)  it  is  not  necessary  to 
set  forth  any  of  the  statements  in  the  orig- 
inal suit  unless  the  special  circumstances  of 
the  case  may  require  it. 

It  must  be  brought  by  the  proper  repre- 
sentatives of  the  person  deceased,  with  ref- 
erence to  the  property  which  is  the  subject- 
matter  ;  4  Sim.  318 ;  Douglass  v.  Sherman*  2 
Paige,  Ch.  (N.  Y.)  358;    Story,  Eq.  PL  §  354. 

BILL  OF  REVIVOR  AND  SUPPLEMENT. 
One  which  is  a  compound  of  a  supplemental 
bill  and  bill  of  revivor,  and  not  only  con- 
tinues the  suit,  which  has  abated  by  the 
death  of  the  plaintiff,  or  the  like,  but  sup- 
plies any  defects  in  the  original  bill  arising 
from  subsequent  events,  so  as  to  entitle  the 
party  to  relief  on  the  whole  merits  of  his 
case.  Westcott  v.  Cady,  5  Johns.  Ch.  (N.  Y.) 
334,  9  Am.  Dec.  306;  Mitf.  Eq.  PL  32,  74; 
13  Yes.  161;  Eastman  v.  Batchelder,  36  N. 
H.  141,  72  Am.  Dec.  295;  Pendleton  v.  Fay, 
3  Paige,  Ch.  (N.  Y.)  204. 

BILL  OF  RIGHTS.  A  formal  and  public 
declaration  of  popular  rights  and  liberties. 

The  document  pre-eminently  known  by 
that  name  was  the  English  statute,  1  \V.  and 
M.,  Sess.  2,  C.  2  (1689). 

What  was  known  as  the  Declaration  of 
Right  was  delivered  to  the  Prince  and  Prin- 
cess of  Orange  (afterwards  William  III. 
and  Mary)  by  the  English  lords  and  com- 
mons, and  in  December,  1689  (at  the  second 
session  of  the  Convention  Parliament,  which 
had  reassembled  October  25,  1689),  it  was, 
with  some  amendments,  few  but  important, 
enacted  into  a  statute  known  as  the  Bill  of 
Rights.  The  Declaration  was  presented  to 
the  new  monarchs  as  embodying  the  condi- 
tions of  their  election,  and  only  after  their 
acceptance  of  its  terms  was  proclamation  of 
their  accession  made,  on  February  13,  16S9; 
2  Gneist,  Hist.  Eng.  Const.  316,  note. 

The  Bill  of  Rights  contained  13  clauses  or 
guaranties,  suggested  by  the  illegal  and  ar- 
bitrary acts  previously  committed  by  the 
Crown.  These  were  a  declaration  of  the  il- 
legality of  (1)  the  pretended  power  of  the 
suspension  of  laws  or  their  execution,  by 
regal  authority,  without  consent  of  Parlia- 
ment; <2)  the  recent  assumption  and  exercise 
of  the  same  power;  (3)  the  commission  for 
erecting  the  late  Court  of  Commissioners  for 
ecclesiastical  causes  and  other  similar  com- 
missions and  courts ;  (4)  levying  money  for 
the  use  of  the  Crown  by  pretense  of  preroga- 
tive without  grant  of  Parliament;  (6)  rais- 
ing or  keeping  a  standing  army  in  time  of 
peace,  without  consent  of  Parliament.  There 
were  also  declarations  in  favor  of  (5)  the 
right  of  petition ;  (7)  the  right  of  Protestants 
to  bear  arms ;  (8)  free  elections  of  members 
of  Parliament ;  (9)  freedom  of  speech  and 
debates  in  Parliament,  which  should  not  be 
questioned  elsewhere ;  (10)  that  excessive 
bail   should  not  be  required,   nor   excessive 


fines  imposed,  nor  cruel  and  unusual  punish- 
ment inllicted ;  (11)  the  due  impanelling  and 
return  of  jurors,  and  that  those  in  treason 
trials  should  be  freeholders;  (12)  that  grants 
and  promises  of  fines  and  forfeitures  before 
conviction  are  illegal  and  void ;  (13)  that 
Parliament  ought  to  be  held  frequently. 

The  absence  of  what  was  popularly  known 
as  a  Bill  of  Rights  in  the  Federal  Constitu- 
tion, as  originally  adopted,  was  the  cause  of 
some  opposition  to  the  work  of  the  Conven- 
tion which  framed  it,  and  an  effort  was 
made  to  secure  its  insertion  by  Congress. 
This  failed  and  it  was  believed  by  Madison, 
and  those  who  joined  him  in  opposing  the 
movement  to  amend,  that  its  success  would, 
by  creating  confusion  as  to  what  instrument 
was  to  be  ratified,  have  endangered  the  final 
adoption  of  the  Constitution.  2  Curtis,  Hist. 
Const.  U.  S.  498. 

Subsequently  and  very  soon  after  the  orig- 
inal instrument  went  into  effect  the  first  ten 
amendments,  adopted  together,  embodied,  as 
limitations  upon  the  powers  of  the  Federal 
government,  substantially  all  the  guaranties, 
considered  applicable  to  our  conditions,  of 
the  English  Bill  of  Rights.  Since  all  of  those 
provisions  are  also  embodied  in  most,  if  not 
all,  of  the  American  Constitutions,  their  as- 
sertion of  fundamental,  political  and  per- 
sonal liberty  are  referred  to  collectively  as  a 
"bill  of  rights."  Indeed  some  of  the  State 
Constitutions  preserve  the  name  as  well  as 
the  substance. 

The  text  of  the  English  Bill  of  Rights  will 
be  found  in  2  Hist,  for  Ready  Ref.  937. 

See  Constitution  of  the  United  States. 

BILL  OF  SALE.  A  writing  evidencing 
the  transfer  of  personal  property  from  one 
person  to  another.  Putnam  v.  McDonald,  72 
Vt.  4,  5,  47  Atl.  159. 

It  is  in  frequent  use  in  the  transfer  of  personal 
property,  especially  that  of  which  immediate  pos(- 
session   is   not   or   cannot   be   given. 

In  England  a  bill  of  sale  of  a  ship  at  sea  or  out  of 
the  country  is  called  a  grand  bill  of  sale;  but  no 
distinction  is  recognized  in  this  country  between 
grand  and  ordinary  bills  of  sale ;  Portland  Bank 
v.  Stacey,  4  Mass.  661,  3  Am.  Dec.  253.  The  effect 
of  a  bill  of  sale  is  to  transfer  the  property  in  the 
thing  sold. 

By  the  maritime  law,  the  transfer  of  a 
ship  must  generally  be  evidenced  by  a  bill 
of  sale;  Weston  v.  Penniman,  1  Mas.  306, 
Fed.  Cas.  No.  17,455;  and  by  act  of  con- 
gress, every  sale  or  transfer  of  a  registered 
ship  to  a  citizen  of  the  United  States  must 
be  accompanied  by  a  bill  of  sale,  setting 
forth,  at  length,  •  the  certificate  of  registry ; 
R.  S.  U.  S.  §  4170.  Where  the  bill  is  insufficient 
under  the  statute,  the  executor  of  the  seller 
can  be  compelled  to  reform  it;  Sprague  v. 
Thurber,  17  R.  I.  454,  22  Atl.  1057.  And 
this  bill  of  sale  is  not  valid  except  between 
the  parties  or  those  having  actual  notice, 
unless  recorded ;  R.  S.  §  4192.  A  contract  to 
sell,  accompanied  by  delivery  of  possession, 
is,  however,   sufficient;    Taggard   v.   Loring, 


BILL  OF  SALE 


3G3 


BILL  QUIA  TI.MKT 


16  Mass.  336,  8  Am.  Dec.  140 ;    Bixby  v.  Ins. 
Co.,  8  Pick.  (Mass.)  8G :    Wendover  v.  Hoge- 
boom,  7  Johns.  (N.  Y.)  308. 
See  Sale. 

BILL  OF  SIGHT.  A  written  description 
of  goods,  supposed  to  be  inaccurate,  but 
made  as  nearly  exact  as  possible,  furnished 
by  an  importer  or  his  agent  to  the  proper  of- 
ficer of  the  customs,  to  procure  a  landing  and 
inspection  of  the  goods.  It  was  allowed  by 
an  English  statute  where  the  merchant  is  ig- 
norant of  the  real  quantity  and  quality  of 
goods  consigned  to  him,  so  as  to  be  unable 
to  make  a  proper  entry  of  them. 

BILL  OF  SUFFERANCE.  A  license  grant- 
ed to  a  merchant,  permitting  him  to  trade 
from  one  English  port  to  another  without 
paying  customs. 

BILL  PAYABLE.  A  bill  of  exchange  ac- 
cepted, or  a  promissory  note  made,  by  a  mer- 
chant, whereby  he  has  engaged  to  pay  money. 
It  is  so  called  as  being  payable  by  him.  An 
account  is  usually  kept  of  such  bills  in  a 
book  with  that  title,  and  also  in  the  ledger. 
See  Parsons,  Notes  and  Bills. 

BILL  PENAL.  A  written  obligation  by 
which  a  debtor  acknowledges  himself  in- 
debted in  a  certain  sum,  and  binds  himself 
for  the  payment  thereof,  in  a  larger  sum. 
-  Bonds  with  conditions  have  superseded 
such  bills  in  modern  practice ;  Steph.  PI.  265, 
n.  They  are  sometimes  called  bills  obligato- 
ry, and  are  properly  so  called;  but  every 
bill  obligatory  is  not  a  bill  penal ;  Comyns, 
Dig.  Obligations,  D. ;  Cro.  Car.  515.  See  2 
Ventr.  106,  198. 

BILL  QUIA  TIMET.  A  bill  to  guard 
against  possible  future  injuries  and  to  con- 
serve present  rights  from  possible  destruc- 
tion or  serious  impairment.  The  limits  of 
the  application  of  the  remedy  are  not  clearly 
defined,  but  it  rests  on  the  principle  of  re- 
lieving the  party  and  his  title  from  some 
claim  or  liability  which  may,  if  enforced,  en- 
tail serious  loss.  Such  a  bill  may  be  filed 
when  a  person  is  entitled  to  property  of  a 
personal  nature  after  another's  death,  and 
has  reason  to  apprehend  it  may  be  destroyed 
by  the  present  possessor;  or  when  he  is  ap- 
prehensive of  being  subjected  to  a  future  in- 
convenience, probable,  or  even  possible,  to 
happen  or  be  occasioned  by  the  neglect,  in- 
advertence, or  culpability  of  another;  or 
when  he  seeks  to  be  relieved  against  an  in- 
valid title,  claim,  or  incumbrance  which  has 
been  created  by  the  act  of  another.  See  3 
Daniell,  Ch.  Pr.  1961,  n.  Another  illustra- 
tion of  the  application  of  the  remedy  is  in 
case  of  a  counterbond ;  although  the  surety 
is  not  troubled  for  the  money,  after  it  be- 
comes payable,  a  decree  for  its  payment  may 
be  had  against  the  principal,  or  when  a 
trustee  has  incurred  liability  as  the  holder 
of  shares  for  another  under  a  covenant  of 
indemnity,  against  liability ;   L.  R.  7  Ch.  395. 


Upon  a  proper  case  being  made  out,  the 
court  will,  in  one  case,  secure  the  property 
for  the  use  of  the  party  (which  is  the  ob- 
ject of  the  bill),  by  compelling  the  person  in 
ion  of  it  to  give  a  proper  security 
against  any  subsequent  disposition  or  wilful 
destruction;  and,  in  the  other  case,  they 
will  quiet  the  party's  apprehension  of  future 
inconvenience,  by  removing  the  causes  which 
may  lead  to  it;  1  Madd.  Ch.  Pr.  218;  2 
Story,  Eq.  Jur.  §§  825,  851.  See  Bill  to  Quiet 
Possession  and  Title;  Bill  of  Peace. 

BILL  RECEIVABLE.  A  promissory  note, 
hill  of  exchange,  or  other  written  instrument 
for  the  payment  of  money  at  a  future  day, 
whi<h  a  merchant  holds.  So  called  because 
the  amounts  for  which  they  are  given  are 
receivable  by  the  merchant.  They  are  en- 
tered in  a  look  so  called,  and  are  chargi  '1 
to  an  account  in  the  ledger  under  the  same 
title,  to  which  account  the  cash,  when  re- 
ceived, is  credited.-   See  Pars.  N.  &  B. 

BILL,  SINGLE.  A  written  unconditional 
promise  by  one  or  more  persons  to  pay  to 
another  person  or  other  persons  therein  nam- 
ed a  sum  of  money  at  a  time  therein  speci- 
fied. It  is  usually  under  seal,  and  may  then 
be  called  a  bill  obligatory;  Farmers'  &  Me- 
chanics' Bank  v.  Greiner.  2  S.  &  R.  (Pa.)  115. 
It  has  no  condition  attached,  and  is  not  giv- 
en in  a  penal  sum;  Comyns,  Dig.  Obligation, 
C.  See  Jarvis  v.  Mc.Main,  10  N.  C.  10;  Fields 
v.  Mallett,  10  N.  C.  465. 

BILL,  SUPPLEMENTAL.  See  Supple- 
mental Bill. 

BILL  TO  CARRY  A  DECREE  INTO  EX- 
ECUTION. One  which  is  filed  when,  from 
the  neglect  of  parties  or  some  other  cause, 
it  may  become  impossible  to  carry  a  decree 
into  execution  without  the  further  decree  of 
the  court,  Hinde,  Ch.  Pr.  6S ;  Story,  Eq.  PI. 
§  429. 

BILL  TO  MARSHAL  ASSETS.  See  As- 
sets. 

BILL  TO  MARSHAL  SECURITIES.  See 
Marshalling   Securities. 

BILL  TO  PERPETUATE  TESTIMONY. 
One  which  is  brought  to  secure  the  testimony 
of  witnesses  with  reference  to  some  matter 
which  is  not  in  litigation,  but  is  liable  to 
become  so. 

It  differs  from  a  bill  to  take  testimony  de 
bene  esse  ('/•  v.)  inasmuch  as  the  latter  is 
sustainable  only  when  there  is  a  suit  already 
pending. 

A  hill  to  perpetuate  testimony  "lies  when 
the  party  is  in  actual,  undisturbed  posses- 
sion; or  where  lands  are  devised  by  will 
from  the  heir  at  law;  or  when  no  action 
has  been  brought,  hut  the  party  intends  to 
commence  a  suit.''  Hickman  v.  Hickman,  1 
Del.  Ch.  133.  It  proceeds  on  the  ground  that, 
the  party  not  being  in  a  situation  to  bring 
his  title  to  a  trial,  his  evidence  may  be  lost, 


BILL  TO  PERPETUATE  TESTIMONY      364  BILL  TO  QUIET  POSSESSION 


through  lapse  of  time,  a  risk  affecting  all  ev- 
idence, irrespective  of  the  condition  of  a 
witness;   Hall  v.  Stout,  4  Del.  Ch.  269. 

It  must  show  the  subject-matter  touching 
which  the  plaintiff  is  desirous  of  giving  evi- 
dence ;  Rep.  temp.  Finch  391 ;  4  Madd.  8 ; 
that  the  plaintiff  has  a  positive  interest  in 
the  subject-matter  which  may  be  endangered 
if  the  testimony  in  support  of  it  be  lost,  as 
a  mere  expectancy,  however  strong,  is  not 
sufficient;  Mitf.  Eq.  PI.  51;  May  v.  Arm- 
strong, 3  J.  J.  Marsh.  (Ky.)  260,  20  Am.  Dec. 
137.  That  the  defendant  has,  or  pretends  to 
have,  or  that  he  claims,  an  interest  to  con- 
test the  title  of  the  plaintiff  in  the  subject- 
matter  of  the  proposed  testimony ;  Cooper, 
PI.  56;  Story,  Eq.  PL  §  302;  and  some 
ground  of  necessity  for  perpetuating  the  ev- 
idence; Story,  Eq.  PI.  §  303;  Mitf.  Eq.  PI. 
52,  148,  n. 

The  bill  should  describe  the  right  in  which 
it  is  brought  with  reasonable  certainty,  so 
as  to  point  the  proper  interrogations  on  both 
sides  to  the  true  merits  of  the  controversy ; 
1  Vern.  312;  Cooper,  Eq.  PI.  56;  and  should 
pray  leave  to  examine  the  witnesses  touch- 
ing the  matter  stated,  to  the  end  that  their 
testimony  may  be  preserved  and  perpetuated ; 
Mitf.  Eq.  PI.  52.  The  bill  is  filed  and  serv- 
ice made  in  the  usual  way ;  Green  v.  Com- 
pagnia  Generale  Italiana  Di  Navigation,  82 
Fed.  490. 

A  bill  is  demurrable  if  it  contains  a  prayer 
for  relief;  Hickman  v.  Hickman,  1  Del.  Ch. 
133  ;    2  Ves.  497. 

It  must  appear  that  the  relief  is  absolutely 
necessary  to  prevent  a  failure  of  justice; 
Crawford  v.  McAdams,  63  N.  C.  67;  if  no 
reason  exists  for  bringing  the  action  in  aid 
of  which  such  a  bill  is  filed,  the  bill  will  be 
dismissed ;  In  re  Ketchum,  60  How.  Pr.  (N. 
Y.)  154.  Where  a  party  sought  to  perpetuate 
testimony  of  his  legitimacy,  the  bill  was  dis- 
missed because  the  legitimacy  act  gave  him  a 
remedy ;  [1903]  2  Ch.  378.  So  as  to  a  threat- 
ened slander  suit  where  the  answer  releas- 
ed all  claims  against  the  plaintiff  for  slan- 
der; Hanford  v.  Ewen,  79  111.  App.  327. 
The  testimony  of  an  injured  man  not  ex- 
pected to  live  may  be  taken  for  the  benefit 
of  his  family;  Ohio  Copper  Min.  Co.  v. 
Hutchings,  172  Fed.  201,  96  C.  C.  A.  653 
(under  a  Utah  statute). 

Where  one  is  threatened  by  patent  suits 
which  are  not  brought,  he  may  file  a  bill  un- 
der R.  S.  §  866,  to  perpetuate  testimony  that 
the  patent  is  invalid ;  Westinghouse  Mach. 
Co.  v.  Battery  Co.,  170  Fed.  430,  95  C.  C.  A. 
600,  25  L.  R.  A.  (N.  S.)  673,  with  note;  and 
it  is  held  that  he  need  not  show  that  it  is 
necessary  to  take  the  depositions  to  prevent 
a  failure  of  justice  ;  id. 

BILL  TO  QUIET  POSSESSION  AND  TI- 
TLE. Also  called  a  bill  to  remove  a  cloud 
la  title,  and  though  sometimes  classed  witb 


bills  quia  timet  or  for  the  cancellation  of  void 
instruments,  they  may  be  resorted  to  in  oth- 
er cases  when  the  complainant's  title  is  clear 
and  there  is  a  cloud  to  be  removed ;  Mellen 
v.  Iron  Works,  131  U.  S.  352,  9  Sup.  Ct  781," 
33  L.  Ed.  178;  Town  of  Corinth  v.  Locke, 
62  Vt.  411,  20  Atl.  809;  Alsop  v.  Eckles,  81 
111.  424;  the  latter  may  be  said  to  exist 
whenever  in  ejectment  by  the  holder  of  the 
adverse  title  any  evidence  would  be  required 
to  defeat  a  recovery ;  Sloan  v.  Sloan,  25  Fla. 
53,  5  South.  603. 

Whenever  an  instrument  exists  which  may 
be  vexatiously  or  injuriously  used  against  a 
party,  after  the  evidence  to  impeach  or  in- 
validate it  is  lost,  or  which  may  throw  a 
cloud  or  suspicion  over  his  title  or  interest, 
and  he  cannot  immediately  protect  his  right 
by  any  proceedings  at  law,  equity  will  af- 
ford relief  by  directing  the  instrument  to 
be  delivered  up  and  cancelled,  or  by  making 
any  other  decree  which  justice  and  the  rights 
of  the  parties  may  require;  Martin  v. 
Graves,  5  Allen  (Mass.)  602;  Dull's  Appeal, 
113  Pa.  510,  6  Atl.  540 ;   2  Story,  Eq.  §  694. 

Equity  will  entertain  a  bill  to  adjust  the 
claims  or  to  settle  the  priorities  of  conflict- 
ing claimants,  where  there  is  thereby  created 
a  cloud  over  the  title,  which  would  prevent 
the  sale  of  the  land  at  a  fair  market  price; 
Bisph.  Eq.  236;  to  restrain  the  collection  of 
an  illegal  tax;  ibid.;  to  set  aside  deeds,  etc., 
which  may  operate  as  a  cloud  upon  the  legal 
title  of  the  owner ;  whether  they  be  void  or 
voidable,  and  whether  the  character  of  tbe 
instrument  appears  on  its  face  or  not ;  Kerr 
v.  Freeman,  33  Miss.  292 ;  Peirsoll  v.  Elliott, 
6  Pet.  (U.  S.)  95,  8  L.  Ed.  332;  but  it  has 
been  held  that  equity  will  not  interfere  to 
remove  an  alleged  cloud  upon  title  to  land, 
if  the  instrument  or  proceeding  constituting 
such  alleged  cloud  is  absolutely  void  upon 
its  face,  so  that  no  extrinsic  evidence  is  nec- 
essary to  show  its  invalidity ;  nor  if  the  in- 
strument or  proceeding  is  not  thus  void  on 
its  face,  but  tbe  party  claiming,  in  order  to 
enforce  it,  must  necessarily  offer  evidence 
which  will  inevitably  show  its  invalidity ; 
Rich  v.  Braxton,  158  U.  S.  375,  15  Sup.  Ct 
1006,  39  L.  Ed.  1022. 

In  a  suit  brought  in  the  district  court  of 
tbe  United  States,  to  remove  any  incum- 
brance or  lien  or  cloud  upon  the  title  to  real 
or  personal  property  within  the  district 
where  such  suit  is  brought,  an  order  may  be 
made  upon  a  defendant  not  residing  in  the 
district  or  found  therein,  and  not  appearing 
gratis,  to  appear  and  answer,  plead  or  demur 
by  a  certain  day;  18  Stat.  L.  472,  c.  137, 
Sec.  8 ;  Mellen  v.  Iron  Works,  131  U.  S.  352, 
9  Sup.  Ct.  781,  33  L.  Ed.  178 ;  but  such  suit 
will  affect  only  the  property  concerned ;  id. 
See  Bill  of  Peace;   Bill  Quia  Timet. 

BILL    TO    SUSPEND    A     DECREE.      One 

brougbt  to  avoid  or  suspend  a  decree  under 


BILL  TO  SUSPEND  A  DECREE 


3G5 


BINDING  OUT 


special  circumstances.  See  1  Ch.  Cas.  3,  61 ; 
2  id.  8;    Mitf.  Eq.  PI.  85,  86. 

BILL  TO  TAKE  TESTIMONY  DE  BENE 
ESSE.  One  which  is  brought  to  take  the 
testimony  of  witnesses  to  a  fact  material  to 
the  prosecution  of  a  suit  at  law  which  is  ac- 
tually commenced,  where  there  is  good  cause 
to  fear  that  the  testimony  may  otherwise  be 
lost  before  the  time  of  trial ;  Hall  v.  Stout, 
4  Del.  Ch.  269,  where  the  distinction  between 
this  bill  and  one  to  perpetuate  testimony  is 
clearly  stated.  The  right  to  a  bill  to  take 
testimony  de  bene  esse  depends  on  the  condi- 
tion of  the  witness,  while  the  other  depends 
on  the  situation  of  the  party  with  respect  to 
his  power  to  bring  his  rights  to  immediate 
investigation  ;  id.  See  1  S.  &  S.  83  ;  2  Story, 
Eq.  Jur.  §  1813,  n. ;    13  Ves.  56. 

It  lies,  in  general,  where  witnesses  are 
aged  or  infirm ;  Cooper,  Eq.  PI.  57 ;  Ambl. 
65;  13  Ves.  Ch.  56,  261;  propose  to  leave 
the  country;  2  Dick.  454;  Story,  Eq.  PL  § 
308;  or  there  is  but  a  single  witness  to  a 
fact ;    1  P.  Wins.  97 ;   2  Dick.  648. 

The  one  at  whose  instance  the  deposition 
is  taken  has  no  control  over  it,  and  if  he 
directs  the  commissioner  to  withhold  it  be- 
cause he  is  surprised  by  the  testimony,  the 
court  will  order  its  return;  First  Nat.  Bank 
of  Grand  Haven  v.  Forest,  44  Fed.  246. 

BILLA  CASSETUR  (Lat.  that  the  bill  be 
quashed  or  made  void).  A  plea  in  abate- 
ment concluded,  when  the  pleadings  were  in 
Latin,  quod  billa  cassetur  (that  the  bill  be 
quashed).     3  Bla.  Com.  303. 

BILLA  EXCAMBII.    A  bill  of  exchange. 

BILLA  EXONERATIONS.  A  bill  of  lad- 
ing. 

BILLA  VERA  (Lat).  A  true  bill.  The 
form  of  words  indorsed  on  a  bill  of  indict- 
ment, when  proceedings  were  conducted  in 
Latin,  to  indicate  the  opinion  of  the  grand 
jury  that  the  person  therein  accused  ought 
to  be  tried.     See  True  Bill. 

BILLET  DE  CHANGE.  A  contract  to 
furnish  a  bill  of  exchange.  A  contract  to 
pay  the  value  of  a  bill  of  exchange  already 
furnished.    Guyot,  Rupert.  Univ. 

Where  a  person  intends  to  furnish  a  bill  of  ex- 
change (lettre  de  change),  and  is  not  quite  prepared 
to  do  so,  he  gives  a  billet  de  change,  which  is  a  con- 
tract to  furnish  a  lettre  de  change  at  a  future  time. 
Guyot,  Repert.  Univ.;    Story,  Bills  §  2. 

BINDER.  Used  to  designate  a  temporary 
insurance  against  fire.  In  effect,  an  agree- 
ment to  insure,  but  taking  effect  immediate- 
ly. It  is  usually  unwritten.  See  Agreement 
for  Insurance. 

BINDING  OUT.  A  term  applied  to  the 
contract  of  apprenticeship,   which   see. 

The  contract  must  he  by  deed,  to  which 
the  infant,  as  well  as  the  parent  or  guardian, 
must  be  a  party,  or  the  infant  will  not  be 
bound;  3  B.  &  Aid.  584;  In  re  McDowle,  8 
Johns.    (N.  Y.)   32S;  Stringfield  v.  Heiskell, 


2  Yerg.    (Tenn.)    51G;   Pierce  v.  Massenburg, 

4  Leigh  (Va.)  493,  26  Am.  Dec.  333;  Trimble 
v.  State,  4  Black!  (Ind.i  437;  Balch  v. 
Smith,  12  N.  II.  438. 

BINDING  OVER.  The  act  by  which  a 
magistrate  or  court  hold  to  bail  a  party  ac- 
cused of  a  crime  or  misdemeanor. 

The  binding  over  may  be  to  appear  at  a 
court  having  jurisdiction  of  the  offence 
charged,  to  answer,  or  to  be  of  good  be- 
havior, or  to  keep  the  peace. 

BIPARTITE.  Of  two  parts.  This  term  is 
used  in  conveyancing;  as,  this  indenture  bi- 
partite, between  A,  of  the  one  part,  and  B, 
of  the  other  part. 

BIRRETUM,  BIRRETUS.  A  cap  or  coif 
used  formerly  in  England  by  judges  and  ser- 
geants at  law.    Spelman,  Gloss. 

BIRTH.  The  act  of  being  wholly  brought 
Into  the  world. 

The  conditions  of  live  birth  are  not  satis- 
fied when  a  part  only  of  the  body  is  born. 
The  whole  body  must  be  brought  into  the 
world  and  detached  from  that  of  the  moth- 
er, and  after  this  event  the  child  must  be 
alive ;  5  C.  &  P.  329 ;  7  id.  814.  The  circulat- 
ing system  must  also  be  changed,  and  the 
child  must  have  an  independent  circulation; 

5  C.  &  P.  539;  9  id.  154;  Tayl.  Med.  Jur.  591. 
But  it  is  not  necessary  that  there  should 

have  been  a  separation  of  the  umbilical 
cord.  That  may  still  connect  the  child  with 
its  mother,  and  yet  the  killing  of  it  will  con- 
stitute murder;  7  C.  &  P.  814.  See  1  Beck, 
Med.  Jur.  478;  1  Chit.  Med.  Jur.  438;  Gesta- 
tion ;  Life  ;  Vital  Statistics. 

BISAILE.     See  Besaile. 

BISHOP.  In  England,  an  ecclesiastical 
officer,  who  is  the  chief  of  the  clergy  of  his 
diocese,  and  is  the  next  in  rank  to  an  arch- 
bishop. A  bishop  is  a  corporation  sole;  1 
Bla.  Com.  469.  In  the  United  States  it  is 
the  title  of  a  high  ecclesiastical  oiiicer  of 
the  Roman  Catholic,  Episcopal  and  Metho- 
dist Episcopal  and  some  other  churches.  In 
the  first  two  he  is  the  head  of  a  diocese. 
He  is  addressed  in  the  Church  of  England 
and  the  Protestant  Episcopal  Church  as 
Right  Reverend. 

In  England  the  two  archbishops  and  twen- 
ty-four bishops  are  entitled  to  sit  in  the 
House  of  Lords,  and  are  known  as  spiritual 
peers.  When  there  is  a  vacancy,  the  senior 
existing  bishop  is  entitled  to  fill  it  and  not 
the  successor  of  the  one  who  died.  The 
bishop's  powers  are  threefold:  1.  Potestas 
ordinis,  under  which  he  confers  orders,  con- 
firms, consecrates  churches,  etc. ;  2.  Pot'  8ta8 
juri.silictionis,  which  he  exercises  as  ecclesi- 
astical judge  of  the  diocese;  3.  Administra- 
tio  familiaris,  by  which  he  governs  the  rev- 
enue; 1  Bla.  Com.  :>-T7.  155.  As  to  his  ap- 
pointment, see  Conge  D'Elibe;  Church  of 
England. 


BISHOP 


366     BLACK  BOOK  OF  THE  ADMIRALTY 


In  the  Roman  Church  he  is  the  governing 
authority  in  his  diocese  and  is  said  to  be 
"the  supreme  pastor,  the  supreme  teacher, 
the  supreme  governor."  It  is  his  duty,  un- 
der the  laws  and  discipline  of  his  church,  to 
administer  the  regulations  provided  by  its 
laws,  and  to  construe  and  Interpret  such 
regulations.  The  court  will  not  review  the 
judgments  or  acts  of  a  religious  organiza- 
tion with  reference  to  its  internal  affairs 
for  the  purpose  of  ascertaining  their  regu- 
larity or  accordance  with  the  discipline  and 
usage  of  such  organization;  rounder  v.  Ashe, 
44  Neb.  673,  G3  N.  W.  48;  Bonacum  v.  Har- 
rington, 65  Neb.  831,  91  N.  W.  S86.  See 
Religious  Society. 

BISHOP'S  COURT.  In  English  Law.  An 
ecclesiastical  court  held  in  the  cathedral  of 
each  diocese,  the  judge  of  which  is  the  bish- 
op's chancellor. 

BISHOPRIC.  In  Ecclesiastical  Law.  The 
extent  of  country  over  which  a  bishop  has 
jurisdiction;  a  see;  a  diocese. 

BISSEXTILE.  The  day  which  is  added 
every  fourth  year  to  the  month  of  February, 
in  order  to  nial^e  the  year  agree  with  the 
course  of  the  sun. 

By  statute  21  Hen.  III.,  the  28th  and  29th 
of  February  count  together  as  one  day.  This 
statute  is  in  force  in  some  of  the  United 
States.  Porter  v.  Holloway,  43  Ind.  35; 
Harker  v.  Addis,  4  Pa.  515. 

A  writ  in  1256  to  the  justices  of  the  bench, 
relating  to  the  manner  in  which  Leap  Year 
should  be  counted,  had  the  force  of  a  stat- 
ute.    Holdsw.  Hist.  E.  L.  174. 

It  Is  called  bissextile,  because  In  the  Roman  cal- 
endar it  was  fixed  on  the  sixth  day  before  the  cal- 
ends of  March  (which  answers  to  the  twenty-fourth 
day  of  February),  and  this  day  was  counted  twice; 
the  first  was  called  bissextus  prior,  and  the  other 
bissextus  posterior;  but  the  latter  was  properly 
called  bissextile  or  intercalary  day.    See  Calendar. 

BITCH.  A  female  dog,  wolf  or  fox.  See 
1  C.  &  K.  459.  An  approbious  name  for  a 
woman.  State  v.  Harwell,  129  N.  C.  550,  40 
S.  E.  48.  Although  it  has  been  held  that 
when  applied  to  a  woman,  it  does  not,  in  its 
common  acceptation,  import  whoredom  in 
any  of  its  forms,  and  therefore  is  not  slan- 
derous;   Schurick   v.    Kollman,   50   Ind.   336. 

BLACK  ACRE.  A  term  used  by  the  old 
writers  to  distinguish  one  parcel  of  land 
from  another,  to  avoid  ambiguity,  as  well 
as  the  inconvenience  of  a  fuller  description. 
"White  acre"  is  also  so  used.  A  and  B  are 
used  in  the  same  way  to  distinguish  persons. 

BLACK  ACT.  In  English  Law.  The  act 
of  parliament,  9  Geo.  II.  c.  22.  This  act 
was  passed  for  the  punishment  of  certain 
marauders  who  committed  great  outrages 
disguised  and  with  faces  blackened.  It  was 
repealed  by  7  &  8  Geo.  IV.  c.  11.  See  4 
Sharsw.  Bla.  Com.  245.  It  is  held  not  to  be 
a  part  of  the  common  law  in  Georgia ;  State 
v.  Campbell,  T.  U.  P.  CharlL   (Ga.)   167. 


BLACK     BOOK     OF     THE     ADMIRALTY. 

An  ancient  book  compiled  in  the  reign  of 
Edward  III.  It  has  always  been  deemed  of 
the  highest  authority  in  matters  concerning 
the  admiralty.  It  contains  the  laws  of  Oler- 
on,  at  large ;  a  view  of  the  crimes  and  of- 
fences cognizable  in  the  admiralty;  ordi- 
nances and  commentaries  on  matters  of 
prize  and  maritime  torts,  injuries,  and  con- 
tracts; De  Lovio  v.  Boit,  2  Gall.  404,  Fed. 
Cas.  No.  3,776.  It  is  said  by  Selden  to  be 
not  more  ancient  than  the  reign  of  Henry 
VI.  Selden,  de  Laud.  Leg.  Aug.  c.  32.  By 
other  writers  it  is  said  to  have  been  compos- 
ed earlier.  It  was  republished  (1871)  by 
the  British  government,  with  an  introduction 
by  Sir  Travers  Twiss. 

BLACK     BOOK    OF     THE     EXCHEQUER. 

The  name  of  a  book  kept  in  the  English  ex- 
chequer, containing  a  collection  of  treaties, 
conventions,  charters,  etc. 

BLACK  CAP.  A  portion  of  the  full  dress 
of  a  judge.  It  is  not  known  when  the  cus- 
tom of  putting  on  the  black  cap  when  pass- 
ing sentence  of  death  was  introduced  into 
England.     Townsend,  Man.  of  Dates. 

BLACK  MAIL.  Rents  reserved,  payable 
in  work,  grain,  and  the  like. 

Such  rents  were  called  black  mail  (reditus  nigri) 
in  distinction  from  white  rents  (blanche  firmes), 
which   were   rents   paid   in  silver. 

A  yearly  payment  made  for  security  and 
protection  to  those  bands  of  marauders  who 
infested  the  borders  of  England  and  Scot- 
land about  the  middle  of  the  sixteenth  cen- 
tury and  laid  the  inhabitants  under  contribu- 
tion. Hume,  Hist.  Eng.  vol.  i.  473;  vol.  ii. 
App.  No.  8;  Cowell. 

In  common  parlance,  the  term  is  equiva- 
lent to,  and  synonymous  with,  extortion — the 
exaction  of  money,  either  for  the  perform- 
ance of  a  duty,  the  prevention  of  an  injury, 
or  the  exercise  of  an  influence.  It  supposes 
the  service  to  be  unlawful,  and  the  payment 
involuntary.  Not  unfrequently  it  is  extorted 
by  threats,  or  by  operating  upon  the  fears  or 
the  credulity,  or  by  promises  to  conceal,  or 
offers  to  expose  the  weaknesses,  the  follies, 
or  the  crimes  of  the  victim.  Edsall  v. 
Brooks,  17  Abb.  Pr.    (N.  Y.)   226. 

Threats  by  defendant  to  accuse  another  of 
a  crime,  with  intent,  himself,  to  commit  the 
crime  of  extortion,  accompanied  by  success 
in  obtaining  money   from  that  other. 

That  such  other  person  was  endeavoring 
to  induce  defendant  to  receive  money,  for  the 
purpose  of  accusing  him  of  extortion,  and 
so  could  not  have  been  moved  by  fear,  will 
not  prevent  his  conviction  for  an  attempt  at 
extortion;  People  v.  Gardner,  144  N.  Y.  119, 
38  N.  E.  1003,  2S  L.  R.  A.  699,  43  Am.  St. 
Rep.  741;  under  an  act  declaring  it  a  crime 
to  threaten  a  person  with  a  criminal  prose- 
cution for  the  purpose  of  extorting  money, 
it  is  immaterial  that  the  person  making  the 


BLACK  MAIL 


3G7 


BLACKLISTING* 


threats  believed  that  the  person  threatened 
had  committed  the  crime;  People  v.  Eiehler, 
75  Hun  2G,  26  X.  Y.  Bupp.  998 ;  where  threats 
of  prosecution  for  perjury  were  made  mali- 
ciously and  with  intent  to  compel  the  one 
threatened  to  do  an  act  against  his  will,  the 
offence  is  complete;  and  it  is  immaterial 
whether  the  one  threatened  was  guilty  of 
perjury;  People  v.  Whittemore,  102  Mich. 
519,  01  N.  W.  13.  In  a  prosecution  under  an 
act  providing  for  the  punishment  of  one  who, 
for  the  purposes  of  extortion,  sends  a  letter 
expressing  or  implying,  or  adapted  to  imply, 
any  threat,  and  the  letter  threatens  to  make 
a  charge  against  the  person  to  whom  it  is 
sent,  the  truth  or  falsity  of  the  charge  is  im- 
material;  People  v.  Choynski,  95  Cal.  640, 
30  Pac.  791 ;  an  act  making  it  an  offence  to 
accuse  one  of  crime  "with  intent  to  extort 
money,"  etc.,  does  not  cover  the  case  of  an 
owner  who  demands  compensation  for  prop- 
erty criminally  destroyed,  and  accompanies 
his  demand  with  a  threat  to  accuse  the  de- 
fendant of  the  crime,  and,  where  he  is  in- 
dicted for  extortion,  it  is  error  to  charge 
that  it  is  immaterial  whether  the  accusa- 
tion made  by  him  was  true  or  false ;  Mann 
v.  State,  47  Ohio  St.  550,  26  N.  E.  22G,  11  L. 
R.  A.  G5G.  A  charge  of  soliciting  sexual  in- 
tercourse with  the  wife  of  another  is  a 
charge  of  immoral  conduct,  which,  if  true, 
would  tend  to  disgrace  one  and  subject  him 
to  the  contempt  of  society,  and  threatening 
to  make  such  charge  is  black  mail;  Motsing- 
er  v.  State,  123  Ind.  498,  24  N.  E.  342. 

On  a  trial  for  maliciously  threatening  to 
accuse  another  of  burning  a  building  with 
intent  to  extort  money,  evidence  of  the  truth 
of  the  charge  is  inadmissible  on  the  question 
of  malice  or  of  intent,  or  to  impeach  the 
prosecuting  witness;  Com.  v.  Buckley,  148 
Mass.  27,  18  N.  E.  577,  1  L.  R.  A.  624. 

BLACK  RENTS.  Rents  reserved  in  work, 
grain,  or  baser  money  than  silver.     Wbishaw. 

BLACK  ROD,  GENTLEMAN  USHER  OF 
THE.  A  chief  officer  of  the  king,  deriving 
his  name  from  his  Black  Rod  of  Office,  on 
the  top  of  which  reposes  a  golden  lion.  Dur- 
ing the  session  of  Parliament  he  attends  on 
the  peers,  summons  the  Commons  to  the 
House  of  Lords,  and  to  his  custody  all  peers 
impeached  for  any  crime  or  contempt  are 
first  committed.  Black  Book  255;  Wharton. 
His  deputy  is  the  Yeoman  Usher.  Similar 
officers  are  found  in  the  Dominion  of  Cana- 
da and  other  colonies.     Cent.  Diet. 

BLACKLEG.  A  professed  gambler,  a  per- 
son who  makes  a  business  of  betting — not 
necessarily  dishonest,  though  disreputable: 
3  H.  &  N.  376;  31  L.  T.  O.  S.  217,  per  Pol- 
lock, C.  B.  In  the  same  case  Watson,  B., 
thought  the  word  had  no  precise  significa- 
tion; but  Martin  and  Br  am  well,  BB., 
thought  it  imputed  the  indictable  offence  of 
cheating  at  cards. 


BLACKLISTING.  A  list  of  names  of  per- 
sons kept  for  the  purpose  of  prohibiting  or 
recommending  against  dealings  with  them. 
The  publication  of  such  a  list  is  libellous 
per  se  unless  justified  or  privileged ;  Hart- 
nett  v.  Plumbers'  Supply  Ass'n,  169  Mass. 
229,  47  N.  E.  1002,  38  L.  It.  A.  194  ;  Nettles 
v.  Somervell,  6  Tex.  Civ.  App.  627,  25  B.  \Y. 
658;  Western  Union  Telegraph  Co.  v.  Pritch- 
ett,  108  Ga.  411,  34  S.  K.  216.  To  blacklist 
has  been  held  not  to  impute  the  conm. 
of  a  crime  or  other  conduct  exposing  one 
to  public  hatred,  punishment,  disgrace  or 
derision;  Wabash  R.  Co.  v.  Young,  1<;2  Ind. 
L03,  69  N.  E.  1003,  4  L.  R.  A.  (N.  S.)  1091. 
False  statements  manifestly  hurtful  to  a 
man  in  bis  credit  or  business  and  intended 
to  be  so  are  not  privileged;  Weston  v.  Barni- 
coat,  175  Mass.  454.  56  N.  E.  G19,  49  L.  B. 
A.  G12 ;  nor  are  communications  sent  to  the 
members  of  an  organization  for  the  purpose 
of  coercing  the  payment  of  the  claims  of  the 
persons  publishing  such  communication; 
Muetze  v.  Tuteur,  77  Wis.  236,  46  N.  W.  123, 
9  L.  R.  A.  86,  20  Am.  St  Rep.  115.  See  Com- 
merciai.  Agency;  Libel. 

A  more  general  understanding  of  the  term 
is  that  it  has  reference  to  the  practice  of  one 
employer  presenting  to  another  the  names 
of  employes  for  the  purpose  of  furnishing 
information  concerning  their  standing  as  em- 
ployes;  State  v.  Justus,  85  Minn.  279,  88  N. 
W.  759,  56  L.  R.  A.  757,  89  Am.  St  Rep.  550. 
In  the  report  of  the  Anthracite  Coal  Strike 
Commission,  May,  1903,  it  is  described  as  a 
combination  among  employers  not  to  employ 
workmen  discharged  by  any  of  the  members 
of  the  coal  combination,  and  in  this  sense  it 
is  recognized  by  the  legislative  enactments 
in  many  of  the  states  which  prohibit  employ- 
ers from  blacklisting  an  employe  with  the 
intent  of  preventing  his  employment  by  oth- 
ers. But  many  of  these  acts  also  contain  a 
provision  that  they  shall  not  be  construed 
as  preventing  an  employer  from  furnishing 
a  truthful  statement  of  the  cause  of  dis- 
charge. Such  an  act  is  held  not  to  be  in  vio- 
lation of  the  14th  amendment  and  not  to  be 
class  legislation;  State  v.  Justus.  85  Minn. 
279,  8S  N.  W.  759.  56  L.  R.  A.  757.  89  Am. 
St.  Rep.  550;  Joyce  v.  R.  Co.,  100  Minn. 
225,  110  X.  W.  975,  8  L.  R.  A.  (X.  S.  i  756. 
In  the  absence  of  malice,  it  is  not  libel- 
ous to  circulate  a  blacklist  of  workmen 
among  officials  whose  duty  it  is  to  employ 
them;  Missouri  Pac.  Ry.  Co.  v.  Richmond, 
73  Tex.  508,  11  S.  W.  555.  4  L.  R.  A.  2S0,  15 
Am.  St.  Rep-  794  ;  ami  a  record  may  be  kept 
of  the  reasons  for  the  discharge  of  a  rail- 
way servant  and  communicated  to  persons 
Interested;  Hebner  v.  R.  Co.,  78  Minn.  2S9, 
80  X.  W.  1128,  79  Am.  St.  Rep.  3S7.  Such  a 
communication,  when  the  employe  was  dis- 
charged for  gross  neglect  of  duty,  was  held 
privileged;  [1891]  2  Q.  B.  189;  but  blacklist- 
ing was  held  libelous  in  Hartnett  v.  Plumb- 


BLACKLISTING 


368 


BLANCH  HOLDING 


*rs'  Supply  Ass'n,   169  Mass.  220,  47  N.  E. 
1002,  38  L.  R.  A.  194. 

An  agreement  among  several  railroad  com- 
panies not  to  employ  a  person  discharged 
for  a  good  cause  by  any  of  them  is  not  le- 
gally injurious,  unless  the  statements  are 
false  and  the  person  has  sought  and  been 
refused  employment  elsewhere;  Hundley  v. 
R.  Co.,  105  Ky.  1G2,  48  S.  W.  429,  63  L.  R.  A. 
289,  88  Am.  St.  Rep.  298;  nor  is  an  agree- 
ment among  employers  not  to  employ  those 
who  leave  without  cause  and  refuse  to  con- 
form to  certain  rules  an  unlawful  combina- 
tion or  conspiracy ;  Willis  v.  Mfg.  Co.,  120 
Ga.  597,  48  S.  E.  177,  1  Ann.  Cas.  472.  It 
has  been  said  that  an  agreement  of  employ- 
ers not  to  employ  a  particular  person,  in  or- 
der more  effectively  to  compete  with  em- 
ployes, Is  not  distinguishable  from  an  agree- 
ment of  laborers  not  to  work  for  a  particu- 
lar person ;  17  Harv.  L.  R.  139 ;  but  see  Mat- 
tison  v.  R.  Co.,  3  Oh.  S.  C.  &  C.  P.  526,  where 
such  a  combination  of  employers  was  de- 
clared illegal. 

Striking  employe's,  whose  names  were  in 
a  blacklist  sent  to  other  employers  in  the 
same  city,  may  not  unite  in  an  action.  If  a 
right  exists,  it  is  in  favor  of  each  one  sepa- 
rately;  Worthington  v.  Waring,  157  Mass. 
421,  32  N.  E.  744,  20  L.  R.  A.  342,  34  Am. 
St.  Rep.  294. 

An  injunction  will  not  be  granted  to  re- 
strain a  company  from  placing  employes' 
names  on  a  blacklist,  or  from  maintaining 
such  a  list  and  permitting  other  employers 
to  inspect  it;  Boyer  v.  Tel.  Co.,  124  Fed. 
246;  but  see  Casey  v.  Cincinnati  Typograph- 
ical Union  No.  3,  45  Fed.  135,  12  L.  R.  A. 
193,  where  the  publication  of  posters,  circu- 
lars, etc.,  by  employes  for  the  purpose  of 
carrying  out  a  conspiracy  to  boycott  was 
restrained  by  injunction. 

A  blacklisting  statute  requiring  a  corpo- 
ration to  give  to  its  employes  service  letters 
stating  the  true  reason  for  their  discharge 
does  not  deprive  it  of  the  equal  protection 
of  the  laws  under  the  14th  amendment;  St 
Louis  Southwestern  R.  Co.  v.  Hixon  (Tex.) 
126  S.  W.  338. 

See  Boycott  ;  Combination  ;  Conspieacy  ; 
Injunction  ;  Libel  ;  Labob  Union. 

BLADA.  Growing  crops  of  grain.  Spel- 
man,  Gloss.  Any  annual  crop.  Cowell. 
Used  of  crops,  either  growing  or  gathered. 
Reg.  Orig.  94  & ;  Coke,  2d  Inst.  81. 

BLANC  SE1GN.  It  is  a  paper  signed  at 
the  bottom  by  him  who  intends  to  bind  him- 
self, give  acquittance,  or  compromise  at  the 
discretion  of  the  person  whom  he  entrusts 
with  such  Mane  seign,  giving  him  power  to 
fill  it  with  what  he  may  think  proper,  ac- 
cording to  agreement.  This  power  is  person- 
al and  dies  with  the  attorney.  Musson  v. 
Blank,  U.  S.,  6  Mart.  O.  S.  (La.)  718. 


BLANCH     HOLDING.     In    Scotch    Law.     A 

tenure  by  which  land  is  held. 

The  duty  is  generally  a  trifling  one,  as  a  pepper- 
corn. It  may  happen,  however,  that  the  duty  is  of 
greater  value;  and  then  the  distinction  received  in 
practice  is  founded  on  the  nature  of  the  duty.  Stair. 
Inst.  sec.  iii.  lib.  3,  §  33.  See  Paterson,  Comp.  15; 
2  Bla.   Com.  42. 

BLANCHE  FIRME.  A  rent  reserved,  pay- 
able in  silver. 

BLANK.  A  space  left  in  a  writing,  to  be 
filled  up  with  one  or  more  words  to  complete 
the  sense. 

When  a  blank  is  left  in  a  written  agree- 
ment which  need  not  have  been  reduced  to 
writing,  and  would  have  been  equally  bind- 
ing whether  written  or  unwritten,  it  is  pre- 
sumed, in  an  action  for  the  non-performance 
of  the  contract,  parol  evidence  might  be  ad- 
mitted to  explain  the  blank.  And  where  a 
written  instrument  which  was  made  pro- 
fessedly to  record  a  fact  is  produced  as  evi- 
dence of  that  fact  which  it  purports  to  re- 
cord, and  a  blank  appears  in  a  material  part, 
the  omission  may  be  supplied  by  other  proof ; 
Wood  v.  Beach,  7  Vt.  522.  Hence  a  blank 
left  in  an  award  for  a  name  was  allowed  to 
be  supplied  by  parol  proof;  Lynn  v.  Risberg, 
2  Dall.  (U.  S.)  180,  1  L.  Ed.  339.  But  where 
a  creditor  signs  a  deed  of  composition,  leav- 
ing the  amount  of  his  debt  in  blank,  he 
binds  himself  to  all  existing  debts;  1  B.  & 
Aid. 

It  is  said  that  a  blank  may  be  filled  by 
consent  of  the  parties  and  the  instrument 
remain  valid;  Cro.  Eliz.  626;  11  M.  &  W. 
468;  Smith  v.  Crooker,  5  Mass.  538;  Wood- 
worth  v.  Bank,  19  Johns.  (N.  Y.)  396,  10 
Am.  Dec.  239;  Cribben  v.  Deal,  21  Or.  211, 
27  Pac.  1046,  28  Am.  St.  Rep.  746;  though 
not,  it  is  said,  where  the  blank  is  in  a  part 
material  to  the  operation  of  the  instrument 
as  an  instrument  of  the  character  which  it 
purports  to  be;  6  M.  &  W.  200;  McKee  v. 
Hicks,  13  N.  C.  379;  Gilbert  v.  Anthony,  1 
Yerg.  (Tenn.)  69,  24  Am.  Dec.  439;  Boyd  v. 
Boyd,  2  N.  &  McC.  (S.  C.)  125;  Byers  v. 
McClanahan,  6  Gill  &  J.  (Md.)  250;  at  least, 
without  a  new  execution;  2  Pars.  Cont.  8th 
ed.  *724.  But  see  Wiley  v.  Moor,  17  S.  &  R. 
(Pa.)  438,  17  Am.  Dec.  696;  Commercial 
Bank  of  Buffalo  v.  Kortright,  22  Wend.  (N. 
Y.)  348,  34  Am.  Dec.  317;  Bank  of  Common- 
wealth v.  Curry,  2  Dana  (Ky.)  142;  Duncan 
v.  Hodges,  4  McCord  (S.  C.)  239,  17  Am.  Dec. 
734;  4  Bingh.  123.  If  a  blank  is  left  in  a 
policy  of  insurance  for  the  name  of  the  place 
of  destination  of  a  ship,  it  will  avoid  the 
policy;  Park.  Ins.  22;  Wesk.  Ins.  42.  See 
cases  in  note  to  10  Am.  Rep.  26S. 

A  power  of  attorney  to  convey  land  is  in- 
operative until  the  name  of  the  attorney  is 
inserted  by  some  one  having  authority  from 
the  principal;  U.  S.  v.  Mfg.  Co.,  198  Fed. 
881.  As  to  filling  in  blanks  after  execution, 
see  Lewis's  Gr.  Evid.  §  568. 


BLANK 


3G9 


BLASPHEMY 


Leaving  blanks  in  a  note  and  chattel  mort- 
gage as  to  the  amount,  and  the  delivery  of 
the  instruments  in  that  condition,  create  an 
agency  in  the  receiver  to  fill  them  in  the 
manner  contemplated  by  the  maker;  Mackey 
v.  Basil,  50  Mo.  App.  190.  As  between  the 
parties  to  a  deed  it  is  not  void  because  it 
did  not  contain  the  grantee's  name  when 
acknowledged,  if  it  was  afterwards  written 
in  by  the  grantor ;  Vought's  Ex'rs  v.  Vought, 
50  N.  J.  Eq.  177,  27  Atl.  489. 

Where  the  amount  is  left  blank  in  the 
body  of  a  note,  its  insertion  in  figures  in  the 
margin  does  not  complete  it ;  Hollen  v.  Dav- 
is, 59  la.  444,  13  N.  W.  413,  44  Am.  Rep. 
688;  Norwich  Bank  v.  Hyde,  13  Conn.  279; 
contra,  Witty  v.  Ins.  Co.,  123  Ind.  411,  24 
N.  E.  141,  8  L.  R.  A.  365,  18  Am.  St.  Rep. 
327;  nor  if  words  as  well  as  figures  are  in 
the  margin;  Chestnut  v.  Chestnut,  104  Va. 
539,  52  S.  E.  348,  2  L.  R.  A.  (N.  S.)  879, 
note,  7  Ann.  Cas.  802.  So  where  the  name  of 
the  payee  is  left  blank,  although  a  bona  fide 
holder  may  insert  his  own  name;  Tittle  v. 
Thomas,  30  Miss.  122,  64  Am.  Dec.  156;  it 
must  be  done  before  suit;  Thompson  v.  Rath- 
bun,  18  Or.  202,  22  Pac.  S37;  Greenhow  v. 
Boyle,  7  Blackf.  (Ind.)  56;  Seay  v.  Bank,  3 
Sneed  (Tenn.)  558,  67  Am.  Dec.  579. 

A  transfer  of  shares  by  deed  executed  in 
blank  as  to  the  name  of  the  purchaser  or 
the  number  of  the  shares,  is  void  in  Eng- 
land, though  sanctioned  by  the  usage  of 
the  stock  exchange;  4  D.  &  J.  559;  2  H.  & 
C.  175.  But  the  rule  is  otherwise  in  Kort- 
right  v.  Bank,  20  Wend.  (N.  Y.)  91;  German 
Union  Bldg.  &  Sav.  Fund  Ass'n  v.  Send- 
meyer,  50  Pa.  67;  (but  see  Denny  v.  Lyon,  38 
Pa.  98,  80  Am.  Dec.  463) ;  Day  v.  Holmes, 
103  Mass.  306;  Bridgeport  Bank  v.  R.  Co., 
30  Conn.  274.  See  the  subject  discussed  in 
Lewis,  Stocks  50.  As  to  blanks  in  notes,  see 
Knoxville  Nat  Bank  v.  Clark,  51  la.  264,  1 
N.  W.  491,  33  Am.  Rep.  130. 

See  Alteration. 

BLANK  BAR.    See  Common  Bab. 

BLANK  INDORSEMENT.  An  indorse- 
ment which  does  not  mention  the  name  of 
the  person  in  whose  favor  it  is  made. 

Such  an  indorsement  is  generally  effected 
by  writing  the  indorser's  name  merely  on 
the  back  of  the  bill;  Chit.  Bills  170.  A  note 
so  indorsed  is  transferable  by  delivery  mere- 
ly, so  long  as  the  indorsement  continues 
blank ;  and  its  negotiability  cannot  be  re- 
stricted by  subsequent  special  indorsements ; 
1  Esp.  180;  Peake  225;  Mitchell  v.  Fuller,  15 
Pa.  2GS,  53  Am.  Dec.  594.  See  3  Campb.  339 ; 
Indorsement. 

BLANKET  POLICY.  A  policy  which  con- 
templates that  the  risk  is  shifting,  fluctuat- 
ing, or  varying,  and  is  applied  to  a  class  of 
property,  rather  than  to  any  particular  thing. 
1  Wood,  Ins.  §  40.  See  Home  Ins.  Co.  v. 
Warehouse  Co.,  93  U.  S.  541,  23  L.  Ed.  868. 
Bouv.— 24 


BLASPHEMY.  To  attribute  to  God  that 
which  is  contrary  to  his  nature,  and  does  not 
belong  to  him,  and  to  deny  what 
false  reflection  uttered  with  a  malicious  de- 
sign of  reviling  God.  Emlyn's  Pref.  to  vol. 
8,  St.  Tr. ;  Com.  v.  Kneeland,  20  Pick.  |  .V 
244. 

An  impious  or  profane  speaking  of  God 
or  of  sacred  things ;  reproachful,  contemptu- 
ous, or  irreverent  words  uttered  impiously 
against  God  or  religion.  Blasphemy  cog- 
nizable by  common  law  is  defined  by  Black- 
stone  to  be  "denying  the  being  or  provi- 
dence of  God,  contumelious  reproaches  of 
our  Saviour  Christ,  profane  scoffing  at  the 
Holy  Scripture,  or  exposing  it  to  contempt 
or  ridicule ;"  by  Kent  as  "maliciously  re- 
viling God  or  religion." 

In  general  blasphemy  may  be  described  as  con- 
sisting in  speaking  evil  of  the  Deity  with  an  impi- 
ous purpose  to  derogate  from  the  divine  majesty, 
and  to  alienate  the  mind3  of  others  from  the  love 
and  reverence  of  God.  It  is  purposely  using  words 
concerning  God  calculated  and  designed  to  impair 
and  destroy  the  reverence,  respect,  and  confidence 
due  to  him  as  the  intelligent  creator,  governor,  and 
judge  of  the  world.  It  embraces  the  idea  of  detrac- 
tion, when  used  towards  the  Supreme  Being ;  as 
"calumny"  usually  carries  the  same  idea  when  ap- 
plied to  an  individual.  It  is  a  wilful  and  malicious 
attempt  to  lessen  men's  reverence  for  God  by  deny- 
ing his  existence,  or  his- attributes  as  an  intelligent 
creator,  governor,  and  judge  of  men,  and  to  prevent 
their  having  confidence  in  him  as  such;  Com.  v. 
Kneeland,  20  Pick.   (Mass.)  211,  212,  per  Shaw,  C.  J. 

If  a  man,  not  for  the  sake  of  argument, 
makes  a  scurrilous  attack  on  doctrines  which 
the  majority  of  persons  hold  to  be  true,  in  a 
public  place  where  passersby  may  be  offended 
and  young  people  may  come,  he  becomes  lia- 
ble for  a  blasphemous  libel ;  see  72  J.  P.  188. 

The  offense  of  publishing  a  blasphemous 
libel,  and  the  crime  of  blasphemy,  are  in 
many  respects  technically  distinct,  and  may 
be  differently  charged  ;  yet  the  same  act  may. 
and  often  does,  constitute  both.  The  tatter 
consists  in  blaspheming  the  name  of  God,  by 
denying,  cursing,  or  contumeliously  reproach- 
ing God,  his  creation,  government,  or  final 
judging  of  the  world;  and  this  may  be  done 
by  language  orally  uttered.  But  it  is  not  the 
less  blasphemy  if  the  same  thing  be  done  by 
language  written,  printed,  and  publi 
although  when  done  in  this  form  it  also  con- 
stitutes the  offence  of  libel;  Com.  v.  Knee- 
land, 20  Pick.  (Mass.)  213,  per  Shaw,  C.  J.; 
Heard,  Lib.  &  SI.  §  336. 

In  most  of  the  United  States,  statutes  have 
been  enacted  against  this  offence;  but  these 
statutes  are  not  understood  in  all  cast-;  to 
have  abrogated  the  common  law;  the  rule  be- 
ing that  where  the  statute  does  not  vary  the 
class  and  character  of  an  offence,  but  only  au- 
thorizes, a  particular  mode  of  proceeding  and 
of  punishment,  the  sanction  is  cumulative 
and  the  common  law  is  not  taken  away.  And 
it  has  been  decided  that  neither  these  stat- 
utes' nor  the  common-law  doctrine  is  repug- 
nant to  the  constitutions  of  those  states  in 
which  the  question  has  arisen;  Heard,  Lib. 


BLASPHEMY 


370 


BLASTING 


&  SI.  §  343;  Com.  v.  Kneeland,  20  Pick. 
(Mass.)  206;  Updegraph  v.  Com.,  11  S.  &  It. 
(Pa.)  394 ;  People  v.  Ruggles,  8  Johns.  (N.  Y.) 
290,  5  Am.  Dec.  335;  Andrew  v.  New  York 
Bible  &  Common  Prayer  Book  Society,  4 
Sandf.  (N.  Y.)  156 ;  State  v.  Chandler,  2  Ilarr. 
(Del.)  553;  Yidal  v.  Girard,  2  How.  (U.  S.) 
127,  11  L.  Ed.  205. 

In  England,  to  speak,  write  and  publish 
any  profane  words  vilifying  or  ridiculing  God, 
Jesus  Christ  or  the  Holy  Ghost,  the  Old  or 
New  Testament,  or  Christianity  in  general, 
with  intent  to  shock  and  insult  believers  or 
to  pervert  or  mislead  the  ignorant  or  unwary, 
is  a  misdemeanor.  The  intent  is  an  essential 
element.  Odgers,  C.  L.  206.  See  [1908]  72 
J.  P.  1SS. 

In  France,  before  the  25th  of  September, 
1791,  it  was  a  blasphemy,  also,  to  speak 
against  the  Holy  Virgin  and  the  saints,  to 
deny  the  faith,  to  speak  with  impiety  of 
holy  things,  and  to  swear  by  things  sacred; 
Merlin,  Rupert.  The  law  was  repealed  on 
that  date. 

The  Civil  Law  forbade  blasphemy;  such, 
for  example,  as  to  swear  by  the  hair  of  the 
head  of  God;  and  it  punished  its  violation 
with  death.  Si  enim  contra  homines  facta; 
blasphemiw  impunitw.  non  relinquuntur, 
multo  magis  qui  ipsum  Deum  blasphemant 
digni  sunt  supplicia  sustinerc.  (For  if  slan- 
der against  men  is  not  left  unpunished,  much 
more  do  those  deserve  punishment  who  blas- 
pheme God.)     No.  77.  1.  §  1. 

In  Spain  it  is  blasphemy  not  only  to  speak 
against  God  and  his  government,  but  to 
utter  injuries  against  the  Virgin  Mary  and 
the  saints.  Senen  Vilanova  y  Manes,  Ma- 
teria Criminal,  forense,  Observ.  11,  cap.  3, 
n.  1.     See  Christianity. 

BLASTING.     A  mode  of  rending  rock  and 
other  solid   substances  by   means   of   explo 
sives. 

Blasting  rock  in  the  city  of  New  York  is 
necessary  and  therefore  legal;  Gourdier  v. 
Cormack,  2  E.  D.  Sm.  (N.  Y.)  254;  Wiener 
v.  Hammell,  14  N.  Y.  Supp.  365.  It  is  a  use- 
ful and  often  a  necessary  means  for  the 
improvement  of  land,  and  where  it  does  not 
amount  to  a  nuisance,  the  person  is  answer- 
able only  if  negligent;  Klepsch  v.  Donald,  4 
Wash.  436,  30  Pac.  991,  31  Am.  St.  Rep.  936. 
Absolute  liability  is  imposed  on  the  keeper 
of  dangerous  explosives  only  when  by  rea- 
son of  the  location  and  surrounding  circum- 
stances the  magazine  is  a  nuisance;  Heeg  v. 
Licht,  80  N.  Y.  579,  36  Am.  Rep.  654.  Many 
cases  hold  that  injuries  to  a  house  caused 
by  pulsations  of  the  earth,  vibrations  of  the 
air,  and  jarring  the  house  will  not  render 
the  one  blasting  liable  therefor;  Simon  v. 
Henry,  62  N.  J.  L.  486,  41  Atl.  692;  Benner 
v.  Dredging  Co.,  134  N.  Y.  156,  31  N.  E.  328, 
17  L.  R.  A.  220,  30  Am.  St.  Rep.  649;  Holland 
House  Co.  v.  Baird,  169  N.  Y.  136,  62  N.  E. 
149;  Bessemer  Coal,  Iron  &  Land  Co.  v. 
Doak,  152  Ala.  166,  44  South.  627,  12  L.  R. 


A.  (N.  S.)  389;  in  the  absence  of  negligence 
on  his  part;  id.;  contra,  Fitz  Simons  &  Con- 
nell  Co.  v.  Braun,  199  111.  390,  65  N.  E.  249,  59 
L.  R.  A.  421;  City  of  Chicago  v.  Murdock, 
212  111.  9,  72  N.  E.  46,  103  Am.  St,  Rep.  221; 
Longtin  v.  Persell,  30  Mont.  306,  76  Pac.  699, 
65  L.  R.  A.  655,  104  Am.  St.  Rep.  723,  2  Ann. 
Cas.  198;  but  it  has  been  held  in  other  cases 
to  be  a  nuisance  where  it  causes  loud  noises 
and  renders  adjoining  property  untenanta- 
ble; Gossett  v.  R.  Co.,  115  Tenn.  376,  89 
S.  W.  737,  1  L.  R.  A.  (N.  S.)  97,  112  Am.  St. 
Rep.  846;  that  the  continuance  of  the  con- 
cussions amount  to  a  private  nuisance;  Mor- 
gan v.  Bowes,  17  N.  Y.  Supp.  22;  and  that 
injury  to  buildings  caused  by  blasting  ren- 
ders the  user  of  the  explosives  liable  in 
damages,  whether  he  was  or  was  not  negli- 
gent; Farnandis  v.  R.  Co.,  41  Wash.  486,  84 
Pac.  18,  5  L.  R.  A  (N.  S.)  10S6,  111  Am.  St. 
Rep.  1027;  Colton  v.  Onderdonk,  69  Cal.  155, 
10  Pac.  395.  58  Am.  Rep.  556.  One  engaged  in 
blasting  was  held  liable  for  a  fire  communi- 
cated by  the  explosion  of  blasts ;  City  of  Tiffin 
v.  McCormack,  34  Ohio  St.  638,  32  Am.  Rep. 
408;  and  for  the  splitting  of  the  underlying 
strata  of  rock;  Gourdier  v.  Cormack,  2  E. 
D.  Sm.  (N.  Y.)  200.  That  one  attempting  to 
use  dynamite  in  blasting  cannot  foresee  the 
consequences  of  his  act  does  not  relieve  him 
from  liability  for  an  injury  to  the  occupant 
of  a  neighboring  property,  in  a  populous 
neighborhood;  Kimberly  v.  Howland,  143  N. 
C.  398,  55  S.  E.  778,  7  L.  R.  A.  (N.  S.)  545. 

For  injuries  to  land  caused  by  d6bris  cast 
thereon  by  blasts  in  an  adjoining  quarry, 
trespass  is  the  proper  remedy ;  Scott  v.  Bay, 
3  Md.  431;  right  to  blast  for  the  purpose  of 
making  excavations  on  one's  own  land  is  sub- 
ject to  the  limitation  that  the  soil,  stones, 
etc.,  must  not  be  cast  upon  neighboring  land; 
Hay  v.  Cohoes  Co.,  2  N.  Y.  159,  51  Am.  Dec 
279  (a  leading  case).  An  injunction  will  be 
granted;  Sayen  v.  Johnson,  4  Pa.  Co.  Ct. 
360;  Wilsey  v.  Callanan,  21  N.  Y.  Supp.  165; 
though  negligence  is  not  proved ;  Central 
Iron  &  Coal  Co.  v.  Vanderheuk,  147  Ala.  546, 
41  South.  145,  61  L.  R.  A.  (N.  S.)  570,  119 
Am.  St.  Rep.  102,  11  Ann.  Cas.  346;  and  not- 
withstanding the  work  was  authorized  by  a 
city  ordinance;  Rogers  v.  Hanfield,  14  Daly 
(N.  Y.)  339.  So  an  injunction  was  granted 
to  prevent  the  violent  disturbance  of  a  house, 
where  the  effect  ultimately  would  be  to  shake 
it  down;  Hill  v.  Schneider,  13  App.  Div. 
299,  43  N.  Y.  Supp.  1;  but  it  is  held  that 
blasting  at  night  in  a  mine  cannot  be  re- 
strained by  the  owner  of  the  surface,  merely 
because  the  blasting  disturbs  sleep;  Marvin 
v.  Mining  Co.,  55  N.  Y.  538,  14  Am.  Rep.  322. 
One  who  blasts  on  his  own  land  is  liable 
where  death  results,  irrespective  of  negli- 
gence; Sullivan  v.  Dunham,  161  N.  Y.  290, 
55  N.  E.  923,  47  L.  R.  A.  715,  76  Am.  St.  Rep. 
274;  though  the  blast  is  fired  for  a  lawful 
purpose  and  by  one  skilled  at  the  work; 
People's  Gas  Co.  v.  Tyner,  131  Ind.  277,  31 


BLASTINQ 


371 


BLOCKADE 


N.  E.  59,  16  L.  R.  A.  443,  31  Am.  St.  Rep. 
433.  It  is  negligence  not  to  cover  the  blast, 
where  the  work  is  done  on  land  adjacent  to 
a  public  road ;  Beauchamp  v.  Min.  Co.,  50 
Mich.  163,  15  N.  W.  65,  45  Am.  Rep.  30. 
Where  a  city  ordinance  requires  the  blast  to 
be  covered  and  the  orifice  to  be  protected 
by  planks  and  timber,  a  failure  to  comply 
with  it  is  a  sufficient  neglect  of  duty  to  jus- 
tify a  finding  of  negligence;  Brannock  v. 
Elmore,  114  Mo.  55,  21  S.  W.  451;  Devlin  v. 
Gallagher,  6  Daly  (N.  Y.)  494.  If  it  is  not 
practicable  to  cover  the  blast,  it  is  incum- 
bent on  the  person  doing  the  work  to  see  that 
there  is  notice  of  danger ;  Herrington  v.  Vil- 
lage of  Lansingburgh,  110  N.  Y.  145,  17  N. 
E.  728,  6  Am.  St  Rep.  34S;  see  City  of  Lo- 
gansport  v.  Dick,  70  Ind.  65,  36  Am.  Rep.  166. 
On  the  ground  that  the  work  is  intrinsically 
dangerous,  a  city  is  held  liable  for  damage 
caused  by  blasting  in  a  street  done  by  a 
contractor  in  constructing  a  sewer;  City  of 
Joliet  v.  Harwood,  86  111.  110,  29  Am.  Rep. 
17;  City  of  Logansport  v.  Dick,  70  Ind.  78, 
36  Am.  Rep.  166;  but  see  Pack  v.  City  of 
New  York,  8  N.  Y.  222;  Kelly  v.  City  of  New 
York,  11  N.  Y.  432;  Simon  v.  Henry,  62  N.  J. 
L.  486,  41  Atl.  692.  The  negligence  of  a  con- 
tractor in  blasting  in  a  street  to  make  trench- 
es for  a  water  company,  was  held  to  be 
chargeable  to  the  company;  Ware  v.  St.  Paul 
Water  Co.,  2  Abb.  U.  S.  261,  Fed.  Cas.  No. 
17,172. 

BLIND.  The  condition  of  one  who  is  de- 
prived of  the  faculty  of  seeing. 

Persons  who  are  blind  may  enter  into  con- 
tracts and  make  wills  like  others;  Carth. 
53;  Barnes,  19;  Boyd  v.  Cook,  3  Leigh  (Va.) 
32.  When  an  attesting  witness  becomes 
blind,  his  handwriting  may  be  proved  as  if 
he  were  dead;  1  Starkie,  Ev.  341.  But  be- 
fore proving  his  handwriting  the  witness 
must  be  produced,  if  within  the  jurisdiction 
of  the  court;  1  Ld.  Raym.  734;  1  Mood.  & 
R.   258. 

It  is  not  negligence  for  a  blind  man  to 
travel  along  a  highway;  Sleeper  v.  Town 
of  Sandown,  52  N.  H.  244.      . 

BLOCKADE.  In  International  Law.  The 
actual  investment  of  a  port  or  place  by  a 
hostile  force  fully  competent,  under  ordinary 
circumstances,  to  cut  off  all  communication 
therewith,  so  arranged  or  disposed  as  to  be 
able  to  apply  its  force  to  every  point  of 
practicable  access  or  approach  to  the  port  or 
place  so  invested. 

Nature  and  character.  Blockades  may  be 
either  military  or  commercial,  or  may  par- 
take of  the  nature  of  both.  As  military 
blockades  they  may  partake  of  the  nature 
of  a  land  or  land  and  sea  investment  of  a 
besieged  city  or  seaport,  or  they  may  con- 
sist of  a  masking  of  the  enemy's  fleet  by 
another  belligerent  fleet  in  a  port  or  anchor- 
age where  commerce  does  not  ekist.  As 
commercial  blockades,   they   may    consist  of 


operations  against  an  enemy's  trade  or  reve- 
nue, either  localized  at  a  single  important 
seaport,  or  as  a  more  comprehensive  strat- 
egic operation,  by  which  the  entire  sea  fron- 
tier of  an  enemy  is  placed  under  blockade. 
A  blockade,  being  an  operation  of  war.  any 
government,  Independent  or  de  facto,  \ 
rights  as  a  belligerent  are  recognized,  can 
institute  a  blockade  as  an  exercise  of  those 
rights. 

The  justification  of  blockade  lies  in  the 
international  recognition  of  the  necessity 
which  the  belligerent  is  under  of  imposing 
that  restriction  upon  neutral  commerce  for 
the  successful  prosecution  of  hostilities. 

It  is  not  settled  whether  the  mouth  of  an 
International  river  can  be  blockaded  lr 
one  or  more  of  the  upper  riparian  states  re- 
main neutral.  But  if  a  river  constitutes  the 
boundary  line  between  a  belligerent  and  a 
neutral,  it  may  not  be  blockaded  so  as  to 
prevent  access  to  the  neutral  side  of  the 
river.  The  Peterhoff,  5  Wall.  (U.  S.)  4'.).  18 
L.  Ed.  564.  In  case  of  civil  war,  a  govern- 
ment may  blockade  certain  of  its  own  ports, 
as  was  done  by  the  United  States  during  the 
American  Civil  War  and  by  France  during 
the  Franco-Prussian  War. 

Effectiveness.  In  international  jurispru- 
dence it  is  a  well-settled  principle  that  the 
blockading  force  must  be  present  and  of  suf- 
ficient force  to  be  effective,  and  a  mere  no- 
tification of  one  belligerent  that  the  port  of 
the  other  is  blockaded,  sometimes  termed  a 
paper  blockade,  is  not  sufficient  to  establish 
a  legal  blockade.  A  blockade  may  be  made 
effective  by  batteries  on  shore  as  well  as  by 
ships  afloat,  and,  in  case  of  inland  ports, 
may  be  maintained  by  batteries  command- 
ing the  river  or  inlet  by  which  it  may  be 
approached,  supported  by  a  naval  force  suf- 
ficient to  warn  off  innocent  and  capture  of- 
fending vessels  attempting  to  enter;  The  Cir- 
cassian, 2  Wall.  (U.  S.)  135,  17  L.  Ed.  796. 
In  1S56  the  Declaration  of  Paris  prescribed 
that  blockades  to  be  obligatory  must  be  ef- 
fective, that  is  to  say,  maintained  by  a  suf- 
ficient force  really  to  prevent  access  of  the 
enemy's  ships  and  other  vessels.  The  United 
States,  although  not  a  party  to  this  declara- 
tion, has  upheld  the  same  doctrine  since 
17S1,  when,  by  ordinance  of  Congress,  it  was 
declared  that  there  should  be  a  number  of 
vessels  stationed  near  enough  to  the  pert  to 
make  the  entry  apparently  dangerous;  Jour- 
nals of  Congress,  vol.  vii.  p.  186.  By  the 
convention  of  the  Baltic  Towers  in  1780,  and 
again  in  1801,  the  same  doctrine  was  pro- 
mulgated; and  in  1871,  by  treaty  between 
Italy  and  the  United  States,  a  clearer  and 
more  satisfactory  definition  of  an  effective 
blockade  was  agreed  upon,  as  follows:  "It 
is  expressly  declared  that  such  places  only 
shall  be  considered  blockaded  as  shall  be 
actually  invested  by  naval  forces  capable 
of  preventing  the  entrance  of  neutrals,  and 


BLOCKADE 


372 


BLOCKADE 


so  stationed  as  to  create  an  evident  danger 
on  their  part  to  attempt  it." 

The  French  doctrine  of  an  effective  block- 
ade is  that  access  must  be  barred  by  a  line 
of  ships  forming  a  chain  around  the  block- 
aded  port,   while   the   United   States,   Great 
Britain  and  Japan  hold  that  it  is  sufficient 
to  have  men-of-war  cruising  in  the  vicinity 
of  the  port,  provided  the  disposition  of  the 
cruisers  constitutes  an  actual   danger  to  a 
vessel  seeking  to  run  the  blockade.    A  block- 
ade does   not  cease  to   be  effective  because 
the   blockading    force    is   temporarily    with- 
drawn owing  to  stress  of  weather.    1  C.  Rob. 
86,  154.    If  a  single  modern  cruiser,  blockad- 
ing a  port,  renders  it  in  fact  dangerous  for 
other  craft  to  enter  the  port,  the  blockade  is 
practically  effective;    the  Olinde  Rodrigues, 
174  U.  S.  510,  19  Sup.  Ct.  851,  43  L.  Ed.  1065. 
Neutrals.    To  involve  a  neutral  in  the  con- 
sequences of  violating  the  blockade,  it  is  in- 
dispensable that  he  should  have  due  notice 
of  it    This  information  may  be  communicat- 
ed to  him  in  two  ways:   either  actually,  by  a 
formal  notice  from  the  blockading  power,  or 
constructively,  by  notice  to  his  government, 
or  bv  the  notoriety  of  the  fact;    Prize  Cases, 
2  Black  (U.  S.)  635,  17  L.  Ed.  459;  6  C.  Rob. 
Adm.  367;    2  id.  110,  128;    1  Act.  Prize  Cas. 
61.     Formal  notice  is  not  required;    any  au- 
thentic information  is  sufficient;    1  C.  Rob. 
Adm.  334;    5  id.  77,  286;    Edw.  Adm.  203;    3 
Phill.   Int.  Law  397;    The  Revere,  24  Bost. 
L.  Rep.  276,  Fed.  Cas.  No.  11,716;  'Hall,  Int. 
L.  648;    it  is  a  settled  rule  that  a  vessel  in 
a  blockaded  port  is  presumed  to  have  notice 
of  a  blockade  as  soon  as  it  begins;    2  Black 
630. 

Breach.    A  violation  may  be  either  by  go- 
ing into  the  place  blockaded,  or  by  coming 
out  of  it  with  a  cargo  laden  after  the  com- 
mencement  of   the   blockade.     Also   placing 
himself  so  near  a  blockaded  port  as  to  be  in 
a   condition  to  slip  in  without   observation, 
is  a  violation  of  the  blockade,  and  raises  the 
presumption  of  a  criminal  intent;   6  C  Rob. 
Adm.  30,  101,   1S2;     Radcliff  v.    Ins.    Co.,   7 
Johns.  (N.  Y.)  47;    1  Edw.  Adm.  202;    Fitz- 
simmons  v.  Ins.  Co.,  4  Cra.  (U.  S.)  185,  2  L. 
Ed.  591;    The  Josephine,  3  Wall.  (U.  S.)  83, 
18  L.  Ed.  65.     The  sailing  for  a  blockaded 
port,  knowing  it  to  be  blockaded,  is  held  by 
the  English  prize  courts  to  be  such  an  act  as 
may  charge  the  party  with  a  breach  of  the 
blockade;    British  instructions  to  their  fleet 
in  the  West  India  station,  Jan.  5,  1S04;   and 
the  same  doctrine  is  recognized  in  the  Unit- 
ed States;   Yeaton  v.  Fry,  5  Cra.  (U.  S.)  335, 
3  L.   Ed.   117;    The  Nereide,  9  Cra.   (U.   S.) 
440,   3  L.  Ed.  769;  1  Kent  *150;   The   Ber- 
muda, 3  Wall.  (U.  S.)  514,  18  L.  Ed.  200;    3 
Phill.  Int.  Law,  397;   Hall,  Int.  L.  662;   The 
Revere,  24  Bost.  L.  Rep.  276,  Fed.  Cas.  No. 
11,716.     See  Fitzsimmons  v.  Ins.  Co.,  4  Cra. 
(U.  S.)  185,  2  L.  Ed.  591;    Maryland  Ins.  Co. 
v.  Woods,  6  Cra.    (U.   S.)    29,  3  L.  Ed.  143; 
Vos  v.  Ins.  Co.,  2  Johns.  Cas.  (N.  Y.)  180;  id., 


469;   10  Moore,  P.  C.  5S;   The  Adula,  176  U. 
S.  361,  20  Sup.  Ct.  432,  44  L.  Ed.  505. 

But  in  the  case  of  long  voyages,  sailing 
for  a  blockaded  port,  contingently,  might  be 
permitted,  if  inquiry  were  afterwards  made 
at  convenient  ports;  Maryland  Ins.  Co.  v. 
Woods,  6  Cra.  (U.  S.)  29,  3  L.  Ed.  143;  Sper- 
ry  v.  Delaware  Ins.  Co.,  2  Wash.  C.  C.  243, 
Fed.  Cas.  No.  13,236;  but  the  ordinance  of 
1781  authorized  the  condemnation  of  vessels 
"destined"  to  any  blockaded  port,  without 
any  qualification  based  upon  proximity  or 
notice.  A  neutral  vessel  in  distress  may  en- 
ter a  blockaded  port;  The  Diana,  7  Wall. 
(U.  S.)  354,  19  L.  Ed.  165. 

Penalty.     When   the   ship  has  contracted 
guilt  by  a  breach  of  the  blockade  she  may 
be  taken  at  any  time  before  the  end  of  her 
voyage;    but  the  penalty  travels  no  further 
than  the  end  of  her  return  voyage;   2  C.  Rob. 
Adm.  128;    3  id.  147;   The  Wren,  6  Wall.  (U. 
S.)  582,  18  L.  Ed.  876.    When  taken,  the  ship 
is  confiscated ;    and  the  cargo  is  always,  pri- 
ma facie,  implicated  in  the  guilt  of  the  own- 
er or  master  of  the  ship;  and  the  burden  of 
rebutting   the   presumption    that   the   vessel 
was  going  in  for  the  benefit  of  the  cargo, 
and  with  the  direction  of  the  owners  rests 
with  them;    1  C.  Rob.  Adm.  67,  130;  3  id. 
173;  4  id.  93;  1  Edw.  Adm.  39.    The  Decla- 
ration of  London    (q.  v.)    Arts.  1-21,  apart 
from  re-stating  existing  practice,  lays  down 
the  following  rules  upon  controverted  points : 
The  question  whether  a  blockade  is  effective 
is  a  question  of  fact,  that  is,  each  case  must 
be  decided  upon  its  own  merits ;   a  "declara- 
tion" of  the  blockade  must  be  made  by  the 
blockading  government  or  by  the  naval  au- 
thorities acting  in  its  name.     This  declara- 
tion must   be   followed  by   a   "notification," 
first,  to  the  neutral  powers  themselves,  and, 
secondly,  to  the  local  authorities,  who  must, 
in  turn,  notify  the  foreign  consular  officers 
at  the  place.     The  liability  of  a'  neutral  ves- 
sel is  dependent  upon  the  knowledge  of  the 
blockade,  and  this  knowledge  is  presumed  if 
the  vessel  left  port  subsequently  to  the  noti- 
fication of  the  blockade  to  the  neutral  power. 
Neutral    vessels    may    not   be   captured    for 
breach   of  blockade  except  within  the  area 
of  operations  of  the  war-ships  maintaining 
the  blockade,  nor,  if  they  have  broken  block- 
ade "outwards,"  are   they  liable  to  capture 
after   pursuit  has   been    abandoned   by   the 
blocking  force.     This  overrules   the  British 
and  American   doctrine  stated   above. 


BLOOD.  Relationship;  stock;  family.  1 
Roper,  Leg.  103;  1  Belt,  Suppl.  Ves.  365. 
Kindred.     Bacon,   Max.  Reg.  18. 

Brothers  and  sisters  are  said  to  be  of  the  whole 
blood  if  they  have  the  same  father  and  mother,  and 
of  the  half-blood  if  they  have  only  one  parent  in 
common.  Baker  v.  Chalfant,  5  Whart.  (Pa.)  477. 
See  Oglesby  Coal  Co.  v.  Pasco,  79  111.  166;  15  Ves. 
107. 

BLOOD  FEUD.  Avenging  the  slaughter 
of  kin  on  the  person  who  slaughtered  him, 


BLOOD  FEUD 


373  BOARD  OF  SPECIAL  INQUIRY 


or  on  his  belongings.  Whether  the  Teutonic 
or  the  Anglo-Saxon  law  had  a  legal  right  of 
blood  feud  has  been  disputed,  but  in  Alfred's 
day  il  was  unlawful  to  begin  a  feud  until 
an  attempt  had  been  made  to  exact  the  price 
of  the  life  (wer-gild). 

BLOOD    STAINS.     See  Stains,  Blood. 

BLOODHOUND.  Evidence  from  the  track- 
ing of  a  prisoner  by  bloodhounds  is  not  per- 
missible until  it  is  shown  that  they  were  re- 
liable and  accurate;  State  v.  Adams,  85 
Kan.  435,  116  Pac.  608,  35  L.  R.  A.  (N.  S.) 
870;  State  v.  Dickerson,  77  Ohio  St.  34,  82 
N.  E.  9G9,  122  Am.  St.  Rep.  479,  11  Ann.  Cas. 
1181;  other  cases  express  in  various  ways 
the  foundation  that  must  be  laid;  Richard- 
son v.  State,  145  Ala.  46,  41  South.  82,  8 
Ann.  Cas.  10S;  Parker  v.  State,  46  Tex.  Cr. 
R.  461,  80  S.  W.  1008,  108  Am.  St.  Rep.  1021, 
3  Ann.  Cas.  893;  in  Brott  v.  State,  70  Neb. 
395,  97  N.  W.  593,  63  L.  R.  A.  789,  such  evi- 
dence is  held  dangerous  and  incompetent. 

Such  dogs  are  remarkable  for  their  sense 
of  smell  and  ability  to  follow  a  scent  or 
track  a  human  being;  to  permit  evidence 
that  a  hound  has  tracked  an  alleged  crim- 
inal, it  must  be  shown  that  it  had  been  train- 
ed in  that  work;  Pedigo  v.  Com.,  103  Ky. 
41,  44  S.  W.  143,  42  L.  R.  A.  432,  82  Am.  St. 
Rep.    566. 

BLOOD  WIT.  An  amercement  for  blood- 
shed. Cowell.  The  privilege  of  taking  such 
amercements.     Skene. 

A  privilege  or  exemplion  from  paying  a 
fine  or  amercement  assessed  for  bloodshed. 
Cowell;     Termes  de  la   Ley. 

BLUE  LAWS.  A  name  often  applied  to 
severe  laws  for  the  regulation  of  religious 
and  personal  conduct  in  the  colonies  of  Con- 
necticut and  New  Haven;  hence  any  rigid 
Sunday  laws  or  religious  regulations.  The 
best  account  of  the  Blue  Laws  is  by  Trum- 
bull, "The  True  Blue  Laws  of  Connecticut 
and  New  Haven,  and  the  False  Blue  Laws 
invented  by  the  Rev.  Sam'l  Peters,  etc." 
The  latter  reference  is  to  a  collection  with- 
out credit.  See  also  Hinman ;  Schmucker, 
Blue  Laws;  Barker,  Hist.  &  Antiq.  of  New 
Haven;  Peters,  Hist.  Conn.;  Fiske,  Begin- 
nings of  New  England  238. 

BLUE  SKY  LAW.  A  popular  name  for 
acts  providing  for  the  regulation  and  super- 
vision of  investment  companies,  for  the  pro- 
tection of  the  community  from  investing  in 
fraudulent  companies.  The  first  of  these 
acts  was  passed  in  Kansas  (1911).  Some 
twenty  states  have  passed  them.  Such  act 
was  held  valid  in  a  lower  court  in  Kansas, 
and  invalid  in  Alabama  &  N.  O.  Transp.  Co. 
v.  Doyle,  210  Fed.  173  (Michigan  act). 

BOARD  OF  HEALTH.  See  Health  ;  Del- 
egation. 

BOARD  OF  SPECIAL  INQUIRY.  An  in- 
strument of  executive  power,  not  a  court, 
made  up  of  the   immigrant  officials  in   the 


service,  subordinates  of  the  commissioner  of 
immigration,  whose  duties  are  declared 
administrative.      Its  6  are  not  bind- 

ing upon   the  Secretary  of  Commerce.     The 
act    of   congress    making    them    final    D 
final  where  they  are  most  like  ..   to  be  ques- 
tioned, in  the  courts;    Pearson  v.  William-, 
202  U.  S.  281,  20  Sup.  Ct  'ins.  50  L.  Ed 

BOARD  OF  SUPERVISORS.  A  county 
board  of  representatives  of  towns  or  town- 
ships, under  a  system  existing  in  Borne 
states,  having  charge  of  the  fiscal  affairs  of 
the  county. 

This  system  originated  in  the  state  of  New  York, 
and  has  been  adopted  in  Michigan,  Illinois,  Wiscon- 
sin, and  Iowa.  The  board,  when  convened,  forms  a 
deliberative  body,  usually  acting  under  parliamen- 
tary rules.  It  performs  the  same  duties  and  exer- 
cises like  authority  as  the  County  Commissioners 
or  Board  of  Civil  Authority  in  other  states.  See, 
generally,  Haines's  Township  Laws  of  Mich.,  and 
Haines's   Town    Laws   of    111.    &   Wis. 

BOARD  OF  TRADE.  See  Cuambeb  of 
Commerce;    Grain. 

BOARDER.  One  who  makes  a  special 
contract  with  another  person  for  food  with 
or  without  lodging.  Berkshire  Woollen  Co 
v.  Proctor,  7  Cush.  (Mass.)  424;  Pollock  v. 
Landis,  36  la.  651.  To  be  distinguished  from 
a  guest  of  an  innkeeper;  Story,  Bailm.  § 
477;  McDaniels  v.  Robinson,  26  Vt.  343,  62 
Am.  Dec.  574;  Chamberlain  v.  Masterson, 
2(>  Ala.  371;  Berkshire  Woollen  Co.  v.  Proc- 
tor, 7  Cush.  (Mass.)  417.  See  Edwards,  Bail- 
ments §  456. 

In  a  boarding-house,  the  guest  is  under 
an  express  contract,  at  a  certain  rate,  for  a 
certain  time;  but  in  an  inn  there  is  usually 
no  express  engagement:  the  guest,  being  on 
his  way,  is.  entertained  from  day  to  day  ac- 
cording to  his  business,  upon  an  implied  con- 
tract; Willard  v.  Reinhardt,  2  E.  D.  Smith 
(N.  Y.)  148:  Stewart  v.  McCready.  24  Bow. 
Pr.  (N.  Y.)  62;  Cady  v.  McDowell,  1  Lans. 
(N.  Y.)  484. 

There  is  a  duty  on  the  part  of  a  boarding 
house  keeper  to  take  reasonable  care  for  the 
safety  of  property  brought  by  a  guest  into 
his  house,  and  evidence  of  refusal  to  furnish 
a  key  of  the  bed  roam  and  also  for  a  chesl 
of  drawers  therein  was  sufficient  to  go  to  the 
jury  as  a  breach  of  that  duty;  [1905]  2  K. 
B.  805,  in  the  English  Court  of  Appeal. 
where  the  prior  cases  are  examined  and  crit- 
icized, and  Danzy  v.  Richardson,  3  E.  &  B. 
144,  is  approved.  Holder  v.  Soulley,  8  C.  B. 
N.  S.  254,  not  followed,  and  Ca lye's  Case, 
8  Co.  32a,  explained.  See  note  in  31  Mai:. 
L.  Rev.  226;   Bailment;   Innkeeper. 

BOAT.  A  boat  does  not  pass  by  the  sale 
of  a  ship  and  appurtenances;  Molloy,  b.  2. 
c.  1,  §  8 ;  Beawes,  Lex.  Mere.  50:  Starr  v. 
Goodwin,  2  Root  (Conn.)  71 ;  Park  Ins.  8th 
ed.  126.  But  see  Briggs  v.  Strange,  17 
Mass.  405:  2  Marsh.  727.  Insurance  on  a 
ship  covers  her  limits ;  1  Mann.  &  R.  392; 
1  Pars.  Marit.  Law  72,  m 


BOC 


374      BONA  FIDE  HOLDER  FOR  VALUE 


BOC  (Sax.).  A  writing;  a  book.  Used  of 
the  land-bocs,  or  evidences  of  title  amom,' 
the  Saxons,  corresponding  to  modern  deeds. 
These  bocs  were  destroyed  by  William  the 
Conqueror.  1  Spence,  Eq.  Jur.  22;  1  Washb. 
R.  P.  *17,  21.  See  1  Poll.  &  Maitl.  472,  571 ; 
2  id.  12,  86. 

BOC  HORDE.  A  place,  where  books,  evi- 
dences, or  writings  are  kept.  Cowell.  These 
were  generally  in  monasteries.  1  Spence, 
Eq.  Jur.  22. 

BOC  LAND.  Alodial  lands  held  by  writ- 
ten evidence  of  title. 

Such  lands  might  be  granted  upon  such  terms  as 
the  owner  should  see  fit,  by  greater  or  less  estate, 
to  take  effect  presently,  or  at  a  future  time,  or  on 
the  happening  of  any  event.  In  this  respect  they 
differed  essentially  from  feuds.  1  Washb.  5th  ed.  R. 
P.    *17 ;    4   Kent  441.     But  see  Alod. 

BODY.  A  person.  Used  of  a  natural 
body,  or  of  an  artificial  one  created  by  law, 
as  a  corporation. 

A  collection  of  laws ;  that  is,  the  embodi- 
ment of  the  laws  in  one  connected  state- 
ment or  collection,  called  a  body  of  laws. 

In  practice  when  the  sheriff  returns  cepi  corpus 
to  a  capias,  the  plaintiff  may  obtain  a  rule,  before 
special  bail  has  been  entered,  to  bring  in  the  body  ; 
and  this  must  be  done  either  by  committing  the  de- 
fendant or  entering   special  bail.     See  Dead  Body. 

BODY  CORPORATE.  A  corporation.  This 
is  an  early  and  undoubtedly  correct  term  to 
apply  to  a  corporation.  Co.  Litt.  250  a;  Ay- 
liffe,  Par.  196;    Ang.  Corp.  §  6. 

BODY   POLITIC.     See  Corporation. 

BONA  (Lat.  bonus).  Goods;  personal 
property;    chattels,   real  or   personal;     real 

property. 

Bona  et  catalla  (goods  and  chattels)  includes  all 
kinds  of  property  which  a  man  may  possess.  In  the 
Roman  law  it  signified  every  kind  of  property,  real, 
personal,  and  mixed;  but  chiefly  it  was  applied  to 
real  estate,  chattels  being  distinguished  by  the 
words  effects,  movables,  etc.  Bona  were,  however, 
divided  into  bona  mobilia  and  bona  immobilia.  It 
is  taken  in  the  civil  law  in  nearly  the  sense  of  biens 
in  the  French  law.     See  Nulla  Bona. 

BONA  CONFISCATA.  Goods  confiscated 
or  forfeited  to  the  imperial  fisc  or  treasury. 
1  Bla.  Com.  299. 

BONA  FIDE  HOLDER  FOR  VALUE. 
The  Negotiable  Instruments  Act  provides,  § 
52:  A  holder  in  due  course  is  a  holder  who 
has  taken  the  instrument  under  the  follow- 
ing conditions:  1.  That  it  is  complete  and 
regular  upon  its  face;  2.  That  he  became 
the  holder  of  it  before  it  was  overdue,  and 
without  notice  that  it  had  been  previously 
dishonored,  if  such  was  the  fact;  3.  That 
he  took  it  in  good  faith  and  for  value ;  4. 
That  at  the  time  it  was  negotiated  to  him  he 
had  no  notice  of  any  infirmity  in  the  instru- 
ment or  defect  in  the  title  of  the  person  ne- 
gotiating it. 

Where  an  instrument  payable  on  demand 
is  negotiated  an  unreasonable  length  of  time 
after  its  issue,  the  holder  is  not  deemed  a 
holder  in  due  course. 


If  he  has  had  notice  of  any  infirmity  in 
the  instrument  or  defect  in  the  title  of  the 
person  he  took  it  from  before  he  had  paid 
the  full  amount  agreed  to  be  paid,  he  is  a 
holder  in  due  course  only  to  the  amount 
theretofore  paid  by  him.  The  title  of  a  per- 
son who  negotiates  an  instrument  is  defec- 
tive when  he  obtained  it,  or  any  signature  to 
it,  by  fraud,  duress,  or  force  and  fear,  or 
other  unlawful  means,  or  for  an  illegal  con- 
sideration, or  when  he  negotiates  it  in  breach 
of  faith,  or  under  such  circumstances  as 
amount  to  a  fraud.  To  constitute  notice  of 
an  infirmity,  etc.,  the  person  to  whom  it  is 
negotiated  must  have  had  actual  knowledge 
of  the  infirmity  or  defect,  or  knowledge  of 
such  facts  that  his  action  in  taking  the  in- 
strument amounted  to  bad  faith. 

In  the  hands  of  any  holder  other  than  a 
holder  in  due  course,  a  negotiable  instru- 
ment is  subject  to  the  same  defenses  as  if 
it  were  non-negotiable;  but  a  holder  who 
derives  his  title  through  a  holder  in  due 
course  and  is  not  himself  party  to  any  fraud 
or  illegality  affecting  the  instrument,  has  all 
the  rights  of  such  former  holder  in  respect 
of  all  parties  prior  to  the  latter. 

Every  holder  is  deemed  prima  facie  to  be 
a  holder  in  due  course ;  but  when  it  is  shown 
that  the  title  of  any  person  who  has  ne- 
gotiated the  instrument  is  defective,  the 
burden  is  on  the  holder  to  prove  that  he  or 
some  person  under  whom  he  claims  acquired 
the  title  as  holder  in  due  course;  but  this 
does  not  apply  in  favor  of  a  party  who  be- 
came bound  on  the  instrument  prior  to  the 
acquisition  of  such  defective  title.  See  Ne- 
gotiable Instruments  for  the  States,  etc., 
in  which  it  is  enacted. 

BONA    FIDE    PURCHASER    FOR    VALUE. 

See  Purchaser  eor  Value  without  Notice. 

BONA    FIDES.    Good    faith,    honesty,    as 
distinguished  from  mala  fides  (bad  faith). 
Bona  fide.     In  good  faith. 

BONA  FORISFACTA.  Forfeited  goods. 
1  Bla.  Com.  299. 

BONA    GESTURA.     Good  behavior. 

BONA  GRATIA.  Voluntarily;  by  mutual 
consent.  Used  of  a  divorce  obtained  by  the 
agreement  of  both  parties. 

BONA  MOBILIA.  In  Civil  Law.  Mova- 
bles. Those  things  which  move  themselves 
or  can  be  transported  from  one  place  to  an- 
other; which  are  not  intended  to  make  a 
permanent  part  of  a  farm,  heritage,  or  build- 
ing. 

BONA  NOTABILIA.  Chattels  or  goods  of 
sufficient  value  to  be  accounted  for. 

Where  a  decedent  leaves  goods  of  sufficient 
amount  (bona  notabilia)  in  different  dioceses,  ad- 
ministration is  granted  by  the  metropolitan,  to  pre- 
vent the  confusion  arising  from  the  appointment  of 
many  different  administrators;  2  Bla.  Com.  509; 
Rolle,   Abr.   908;    Williams,  Ex.  7th  ed.     The  value 


BONA  NOTABILIA 


375 


BOND 


necessary  to  constitute  property  bona  notabilia  has 
varied  at  different  periods,  but  was  finally  estab- 
lished at  £5,  in  1603. 

BONA  PERITURA.  Perishable  goods. 
An  executor,  administrator,  or  trustee  Is 
bound  to  use  due  diligence  in  disposing  of 
perishable  goods,  such  as  fattened  cattle, 
grain,  fruit,  or  any  other  article  which  may 
be  worse  for  keeping;  Bacon,  Abr.  Execu- 
tors; 5  Co.  9;  Cro.  Eliz.  518;  McCall  v. 
Peachy's  Adm'r,  3  Munf.  (Va.)  2S8 ;  1  Beatt. 
Ch.  5,  14.  A  carrier  is  in  general  not  liable 
for  injuries  to  perishable  goods  occurring 
without  his  negligence;  7  L.  R.  Ch.  573;  1 
C.  P.  D.  423.  He  may  discriminate  in  favor 
of  such  goods,  if  pressed  by  a  rush  of  busi- 
ness;  Great  Western  Ry.  Co.  v.  Burns,  60 
111.'  284 ;  Michigan  Cent.  !R.  Co.  v.  Burrows, 
33  Mich.  G ;  Peet  v.  R.  Co.,  20  Wis.  594,  91 
Am.  Dec.  446.     See  Perishable  Goods. 

BONA  VACANTIA.  Goods  to  which  no 
one  claims  a  property,  as  shipwrecks,  treas- 
ure-trove, etc. ;    vacant  goods. 

Bona  vacantia  belonged,  under  the  common  law, 
to  the  finder,  except  in  certain  instances,  when  they 
were  the  property  of  the  king.  1  Sharsw.  Bla.  Com. 
298,  n. 

BONA  WAVIATA.  Goods  thrown  away 
by  a  thief  in  his  fright  for  fear  of  being  ap- 
prehended. By  common  law  such  goods  be- 
longed to  the  crown.     1  Bla.  Com.  296. 

BOND.  An  obligation  in  writing  and  un- 
der seal.  Taylor  v.  Glaser,  2  S.  &  R.  (Pa.) 
502;  Pinkard  v.  Ingersol,  11  Ala.  19;  Can- 
tey  v.  Duren,  Harp.  (S.  C.)  434;  Deming 
v.  Bullitt,  1  Blackf.  (Ind.)  241;  Denton  v. 
Adams,  6  Vt.  40;  Harman  v.  Harman,  1 
Baldw.  129,  Fed.  Cas.  No.  6,071;  Biery  v. 
Steckel,  194  Pa.  445,  45  Atl.  376. 

It  may  be  single — simplex  obligatio — as 
where  the  obligor  obliges  himself,  his  heirs, 
executors,  and  administrators,  to  pay  a  cer- 
tain sum  of  money  to  another  at  a  day  nam- 
ed, or  it  may  be  conditional  (which  is  the 
kind  more  generally  used),  that  if  the  oblig- 
or does  some  particular  act,  the  obligation 
shall  be  void,  or  else  shall  remain  in  full 
force,  as  payment  of  rent,  performance  of 
covenants  in  a  deed,  or  repayment  of  a  prin- 
cipal sum  of  money,  borrowed  of  the  ob- 
ligee, with  interest,  which  principal  sum  is 
usually  one-half  of  the  penal  sum  specified 
in  the  bond. 

There  must  be  proper  parties ;  and  no 
person  can  take  the  benefit  of  a  bond  except 
the  parties  named  therein ;  Fuller  v.  Fuller- 
ton,  14  Barb.  (N.  Y.)  59;  except,  perhaps,  in 
some  cases  of  bonds  given  for  the  perform- 
ance of  their  duties  by  certain  classes  of 
public  officers;  Fellows  v.  Oilman,  4  Wend. 
(N.  Y.)  414;  Ing  v.  State,  8  Md.  287;  Roll 
v.  Raguet,  4  Ohio  418,  22  Am.  Dec.  759 ;  Bak- 
er v.  Bartol,  7  Cal.  551 ;  Hartz  v.  Com.,  1 
Grant,  Cas.  (Pa.)  359;  State  v.  Druly,  3 
Ind.  431.  A  man  cannot  be  bound  to  him- 
self even  in  connection  with  others;    Smith 


v.  Lusher,  5  Cow.  (N.  Y.)  6S8.  See  McDowell 
v.  Butler,  56  N.  C.  311.  But  if  a  bond  is 
given  by  the  treasurer  of  a  corporation  to 
the  directors  as  a  class,  of  which  he  is  one, 
it  is  not  for  that  reason  invalid;  Durbun>\v 
v.  Niehoff,  37  111.  App.  403.  If  the  I 
run  to  several  persons  jointly,  all  must  join 
in  suit  for  a  breach,  though  it  be  condition- 
ed for  the  performance  of  different  things 
for  the  benefit  of  each ;  Pearce  v.  Hitch- 
cock, 2  N.  Y.  388. 

The  instrument  must  be  in  writing  and 
sealed;  Harman  v.  Harman,  1  Baldw.  129, 
Fed.  Cas.  No.  6,071;  Denton  &  Smith  v. 
Adams,  6  Vt.  40;  but  a  sealing  sufficient 
where  the  bond  is  made  is  held  Bufflcienl 
though  it  might  be  an  insufficient  sealing  if 
it  had  been  made  where  it  is  sued  on  ;  Mere- 
dith v.  Hinsdale,  2  Caines  (N.  Y.)  362.  The 
signature  and  seal  may  be  in  any  part  of  the 
instrument;  Reed  v.  Drake,  7  Wend.  (N.  I.) 
345.  See  McLeod  v.  State,  69  Miss.  221,  13 
South.  268.  An  instrument  not  under  seal 
is  not  a  bond  and  will  not  satisfy  a  statute 
requiring  an  appeal  bord;  Corbin  v.  Las- 
well,  48  Mo.  App.  626 ;  although  in  the  body 
thereof  it  is  recited  that  the  parties  there- 
to have  set  their  hands  and  seals ;  Williams 
v.  State,  25  Fla.  734,  6  South.  831,  6  L.  R.  A. 
821. 

It  must  be  delivered  by  the  party  whose 
bond  it  is  to  the  other ;  Carey  v.  Dennis,  13 
Md.  1;  Chase  v.  Breed,  5  Gray  (Mass.)  440; 
Towns  v.  Kellett,  11  Ga.  2SG;  Harris  v.  Reg- 
ester,  70  Md.  109,  16  Atl.  386  But  the  de- 
livery and  acceptance  may  be  by  attorney; 
Madison  &  I.  Plank-Road  Co.  v.  Stevens,  10 
Ind.  1.  The  date  is  not  considered  of  the 
substance  of  a  deed ;  and  therefore  a  bond 
which  either  has  no  date  or  an  impossible 
one  is  still  good,  provided  the  real  day  of  its 
being  dated  or  given,  that  is,  delivered,  can 
be  proved;  2  Bla.  Com.  304;  Com.  Dig. 
Fait,  B,  3 ;  rRoss  v.  Overton,  3  Call  (Va.)  309, 
2  Am.  Dec.  552.  There  is  a  presumption  that 
a  deed  was  executed  on  the  day  of  its  date ; 
Steph.  Dig.  Ev.  Art.  S7 ;  Costigan  v.  Gould, 
5  Denio  (N.  Y.)  290. 

The  condition  is  a  vital  part  of  a  condi- 
tional bond,  and  generally  limits  and  deter- 
mines the  amount  to  be  paid  in  case  of  a 
breach;  Strang  v.  Holmes,  7  Cow.  (N.  Y> 
224;  but  interest  and  costs  may  be  added; 
Van  Wyck  v.  Montrose,  12  Johns.  (X.  Y.) 
350;  Campbell  v.  Pope,  1  Hempst.  271, 
Cas.  No.  2,.°.0."a.  The  recovery  against  a 
surety  in  a  bond  for  the  payment  of  money 
is  not  limited  to  the  penalty,  but  may  ex- 
ceed it  so  far  as  necessary  to  include  inter- 
est from  the  time  of  the  breach.  So  far  as 
interest  is  payable  by  the  terms  of  the  con- 
tract, and  until  default  made,  it  is  limited 
by  the  penalty;  but  alter  breach  it  is  re- 
coverable, not  on  the  ground  of  contract,  but 
as  damages,  which  the  law  u'ivos  for  its  vi- 
olation;    Brainard"  v.    Jones,    18   N.   Y.    33. 


BOND 


376 


BOND 


See  Philadelphia  &  R.  R.  Co.  v.  Knight,  124 
Pa.  58,  16  Atl.  492.  The  omission  from  a 
statutory  bond  of  a  clause  which  does  not 
affect  the  rights  of  the  parties,  and  imposes 
no  harder  terms  upon  the  obligors,  does  not 
invalidate  it ;  Power  v.  Graydon,  53  Pa. 
198. 

Where  a  bond  is  for  the  performance  of 
an  illegal  contract  the  parties  are  not  bound 
thereon;  State  v.  Pollard,  89  Ala.  179,  7 
South.  705. 

On  the  forfeiture  of  the  bond,  or  its  be- 
coming single,  the  whole  penalty  was  for- 
merly recoverable  at  law;  but  here  the 
courts  of  equity  interfered,  and  would  not 
permit  a  man  to  take  more  than  in  con- 
science he  ought,  viz.:  his  principal,  interest, 
and  expenses  in  case  the  forfeiture  accrued 
by  non-payment  of  money  borrowed,  the 
damages  sustained  upon  non-performance 
of  covenants,  and  the  like.  And  the  like 
practice  having  gained  some  footing  in  the 
courts  of  law,  the  statute  4  &  5  Anne,  c.  16, 
at  length  enacted,  that,  in  case  of  a  bond 
conditioned  for  the  payment  of  money,  the 
payment  or  tender  of  the  principal  sum  due 
with  interest  and  costs,  even  though  the 
bond  were  forfeited  and  a  suit  commenced 
thereon,  should  be  a  full  satisfaction  and 
discharge;   2  Bla.  Com.  340. 

All  of  the  obligors  in  a  joint  bond  are 
presumed  to  be  principals,  except  such  as 
have  opposite  their  names  the  word  "se- 
curity;" Harper's  Adm'r  v.  McVeigh's  Adm'r, 
S2  Va.  751,  1  S.  E.  193 ;  or  unless  it  is  other- 
wise expressed. 

If  in  a  bond  the  obligor  Mnds  himself, 
without  adding  his  heirs,  executors,  and  ad- 
ministrators, the  executors  and  adminis- 
trators are  bound,  but  not  the  heir;  Shep- 
pard,  Touchst.  369;  for  the  law  will  not 
imply  the  obligation  upon  the  heir ;  Co.  Litt. 
209  a. 

If  a  bond  lie  dormant  for  twenty  years, 
it  cannot  afterwards  be  recovered ;  for  the 
law  raises  a  presumption  of  its  having  been 
paid,  and  the  defendant  may  plead  solvit  ad 
diem  to  an  action  upon  it;  1  Burr.  434 ;  4 
id.  1963.  And  in  some  cases,  under  partic- 
ular circumstances,  even  a  less  time  may 
create  a  presumption ;  1  Term  271 ;  Cowp. 
109.  The  presumption  of  payment  after 
twenty  years  is  in  the  nature  of  a  statute 
.of  limitations.  It  is  available  as  a  bar  to 
an  action  to  recover  on  the  instrument,  but 
not  where  the  party  asks  affirmative  relief 
based  upon  the  fact  of  payment;  Lawrence 
v.  Ball,  14  N.  Y.  477. 

Where  a  company  bought  in  its  own  de- 
bentures and  then  reissued  them,  held  that 
the  new  holder  could  not  claim  pari  passu 
with  the  other  holders;  [1904]  2  Ch.  474; 
so  where  debentures  were  used  as  collateral 
and  the  loan  was  paid  and  a  second  loan 
made;  [1907]  2  Ch.  540;  [1906]  2  Ch.  216; 
[1905]  2  Ch.  587,  A.  C.  But  where  receivers 
used  the  corporate  funds  to  buy  in  its  mort- 


gage funds,  It  was  held  that  If  reissued, 
they  could  share  in  the  mortgage  security ; 
In  re  Fifty-Four  First  Mortgage  Bonds,  15 
S.  C.  304,  Simpson,  C.  J.,  dissenting  upon 
the  ground  that  they  had  been  extinguished. 
In  Pruyne  v.  Mfg.  Co.,  92  Hun  214,  36  N.  Y. 
Supp.  361,  there  seems  to  have  been  an  agree- 
ment that  there  was  no  merger.  Corporation 
mortgages  usually  provide  that  all  bonds 
shall  share  equally  in  the  mortgage  secur- 
ity, no  matter  when  issued,  so  that  the  Eng- 
lish cases  are  not  in  point. 

Forthcoming  Bond.  A  bond  conditioned 
that  a  certain  article  shall  be  forthcoming 
at  a  certain  time  or  when  called  for. 

General  Mortgage  Bond.  A  bond  secured 
upon  an  entire  corporate  property,  parts  of 
which  are  subject  to  one  or  more  prior  mort- 
gages. 

Heritable  Bond.  In  Scotch  Law,  a  bond 
for  a  sum  of  money  to  which  is  joined  a 
conveyance  of  land  or  of  heritage,  to  be  held 
by  the  creditor  in  security  of  the  debt. 

Income  Bonds.  Bonds  of  a  corporation 
the  interest  of  which  is  payable  only  when 
earned  and  after  payment  of  interest  upon 
prior  mortgages. 

Lloyd's  Bond.  A  bond  issued  for  work 
done  or  goods  delivered  and  bearing  Inter- 
est. This  was  a  device  of  an  English  bar- 
rister named  Lloyd,  by  which  railway  and 
other  companies  did,  in  fact,  increase  their 
indebtedness  without  technically  violating 
their  charter  provisions  prohibiting  the  in- 
crease of  debt. 

Municipal  Bond,  q.  v. 

Railroad  Aid  Bonds  are  issued  by  mu- 
nicipal corporations  to  aid  in  the  construc- 
tion of  railways.  The  power  to  subscribe 
to  the  stock  of  railways,  and  to  issue  bonds 
in  pursuance  thereof,  does  not  belong  to 
towns,  cities,  or  counties,  without  special  au- 
thority of  the  legislature,  and  the  power  of 
the  latter  to  confer  such  authority,  where 
the  state  constitution  is  silent,  has  been  a 
much-contested  question.  The  weight  of  the 
very  numerous  decisions  is  in  favor  of  the 
power.  In  several  of  the  states  the  consti- 
tutions prohibit  or  restrict  the  right  of  mu- 
nicipal corporations  to  invest  in  the  stock  of 
railroads  or  similar  corporations ;  Citizens' 
Savings  &  Loan  Ass'n  v.  Topeka,  20  Wall. 
(U.  S.)  655,  22  L.  Ed.  455;  Pitzman  v.  Vil- 
lage of  Freeburg,  92  111.  Ill ;  Lowell  v.  City 
of  Boston,  111  Mass.  454,  15  Am.  Rep.  39; 
Ogden  v.  Daviess  County,  102  U.  S.  634,  26 
L.  Ed.  263;  Harshman  v.  County  Court. 
122  U.  S.  306,  7  Sup.  Ct.  1171,  30  L.  Ed. 
1152;  Knox  County  v.  Bank,  147  U.  S.  91. 
13  Sup.  Ct.  267,  37  L.  Ed.  93;  Barnum  v. 
Okolona,  148  XL  S.  393,  13  Sup.  Ct.  638,  37 
L.  Ed.  495;  Cairo  v.  Zane,  149  U.  S. -122, 
13  Sup.  Ct.  803,  37  L.  Ed.  673 ;  McKittrick 
v.  Ry.  Co.,  152  U.  S.  473,  14  Sup.  Ct.  66i, 
38  L.  Ed.  518;  Rogers  v.  Keokuk,  154  U.  S. 
546,  14  Sup.  Ct.  1162,  18  L.  Ed.  74;  /Etna 
Life  Ins.  Co.  v.  Pleasant  Tp.,  62  Fed.  718, 


BOND 


377 


BONDAGE 


10  C.  C.  A.  611 ;  Denison  v.  City  of  Colum- 
bus, 62  Fed.  775;  Atlantic  Trust  Co.  v. 
Town  of  Darlington,  63  Fed.  76 ;  Dill.  Mun. 
Corp.  §  508. 

The  recital  in  bonds  issued  by  a  municipal 
corporation  in  payment  of  a  subscription  to 
railroad  stock,  that  they  were  issued  "in  pur- 
suance of  an  act  of  the  legislature  . 
and  ordinances  of  the  city  council  .  .  .  pass- 
ed in  pursuance  thereof,"  does  not  put  a  bona 
fide  purchaser  for  value  upon  inquiry  as  to 
the  terms  of  the  ordinances  under  which  the 
bonds  were  issued,  nor  does  it  put  him  on  in- 
quiry whether  a  proper  petition  of  two- 
thirds  of  the  residents  had  been  presented 
to  the  common  council  before  it  subscribed 
for  the  stock;  Evansville  v.  Dennett,  161  U. 
S.  434,  16  Sup.  Ct  613,  40  L.  Ed.  760;  and 
recitals  in  county  bonds,  that  they  are  is- 
sued in  pursuance  of  an  order  of  the  court, 
etc.,  as  a  subscription  to  the  capital  stock, 
estop  the  county  issuing  them  as  against 
an  innocent  purchaser  from  showing  that  the 
bonds  are  void  because  in  fact  issued  as  a 
donation  to  the  railroad  company,  whereas 
the  statute  only  authorized  a  subscription 
to  its  stock;  Ashman  v.  Pulaski  County,  73 
Fed.  927,  20  C.  C.  A.  232 ;  where  a  county, 
under  authority  from  the  state,  issued  its 
bonds  in  payment  of  a  subscription  to  stock 
in  a  railway  company,  made  upon  a  condi- 
tion which  was  never  complied  with,  and 
which  was  subsequently  waived  by  the  coun- 
ty, and  received  and  held  the  certificates  and 
paid  interest  on  its  bonds  and  refunded 
them  under  legislative  authority,  the  bonds 
originally  issued  were  held  valid  in  the 
hands  of  a  bona  fide  holder  for  value  before 
maturity ;  Graves  v.  Saline  County,  161  TJ. 
S.  359,  16  Sup.  Ct.  526,  40  L.  Eft.  732 ;  where 
there  is  a  total  want  of  power  to  subscribe 
for  such  stock  and  to  issue  bonds  in  pay- 
ment, a  municipality  cannot  estop  itself  by 
admissions  or  by  issuing  securities  in  negoti- 
able form,  nor  even  by  receiving  and  enjoy- 
ing the  proceeds  of  such  bonds ;    id. 

Straw  Bond.  A  bond  upon  which  is  used 
either  the  name  of  fictitious  persons  or  those 
unable  to  pay  the  sum  guaranteed;  general- 
ly applied  to  insufficient  bail  bonds,  improp- 
erly taken,  and  designated  by  the  term 
"straw  bail." 

As  to  the  overissue  of  bonds,  see  Overis- 
sue. 

BONDAGE.  A  term  which  has  not  ob- 
tained a  juridical  use  distinct  from  the  ver- 
nacular, in  which  it  is  either  taken  as  a 
synonym  with  slavery,  or  as  applicable  to 
any  kind  of  personal  servitude  which  is  in- 
voluntary in  its  continuation. 

The  propriety  of  making  it  a  distinct  juridical 
term  depends  upon  the  sense  given  to  the  word 
slavery.  If  slave  be  understood  to  mean,  exclu- 
sively, a  natural  person  who",  in  law,  is  known  as 
an  object  in  respect  to  which  legal  persons  may 
have  rights  of  possession  or  property,  as  in  respect 
to    domestic    animals    and    inanimate    things,    it    is 


evident  that  any  one  who  is  regarded  as  a  legal  per- 
son, capable  of  rights  and  obligations  in  other  rela- 
tions, while  bound  by  law  to  render  service  to  an- 
other, is  not  a  slave  In  the  same  sense  of  the  word. 
Such  a  one  stands  in  a  legal  relation,  being  under 
an  obligation  correlative  to  the  right  of  the  person 
who  is  by  law  entitled  to  his  service,  and,  though 
not  an  object  of  property,  nor  possessed  or  owned  as 
a  chattel  or  thing,  he  is  a  person  bound  to  the 
other,  and  may  be  called  a  bondman,  In  distinction 
from  a  slave  as  above  understood.  A  greater  or 
less  number  of  rights  may  be  attributed  to  persons 
bound  to  render  service.  Bondage  may  subsist  un- 
der many  forms.  Where  the  rights  attributed  are 
such  as  can  be  exhibited  in  very  limited  spheres  of 
action  only,  or  are  very  imperfectly  protected,  it 
may  be  difficult  to  see  wherein  the  condition,  thougli 
nominally  that  of  a  legal  person,  differs  from  chat- 
tel slavery.  Still,  the  two  conditions  have  been 
plainly  distinguishable  under  many  legal  systems, 
and  even  as  existing  at  the  same,  time  under  one 
source  of  law.  The  Hebrews  may  have  held  persons 
of  other  nations  as  slaves  of  that  chattel  condition 
which  anciently  was  recognized  by  the  laws  of  all 
Asiatic  and  European  nations  ;  but  they  held  per- 
sons of  their  own  nation  in  bondage  only  as  legal 
persons  capable  of  rights,  while  under  an  obligation 
to  serve.  Cobb's  Hist.  Sketch,  ch.  1.  When  the 
serfdom  of  feudal  times  was  first  established,  the 
two  conditions  were  coexistent  in  every  part  of  Eu- 
rope (ibid.  ch.  7),  though  afterwards  the  bondage  of 
serfdom  was  for  a  long  period  the  only  form  known 
there  until  the  revival  of  chattel  slavery,  by  the 
introduction  of  negro  slaves  into  European  com- 
merce, in  the  sixteenth  century.  Every  villein  un- 
der the  English  law  was  clearly  a  legal  person  capa- 
ble of  some  legal  rights,  whatever  might  be  the  na- 
ture of  his  services.  Co.  Litt  123  b;  Coke,  2d  Inst 
4,  45.  But  at  the  first  recognition  of  negro  slavery 
in  the  jurisprudence  of  England  and  her  colonies, 
the  slave  was  clearly  a  natural  person,  known  to 
the  law  as  an  object  of  possession  or  property  for 
others,  having  no  legal  personality,  who  therefore, 
in  many  legal  respects,  resembled  a  thing  or  chattel. 
It  is  true  that  the  moral  responsibility  of  the  slave 
and  the  duty  of  others  to  treat  him  as  an  accounta- 
ble human  being  and  not  as  a  domestic  animal 
were  always  more  or  less  clearly  recognized  in  the 
criminal  jurisprudence.  There  has  always  been  in 
his  condition  a  mingling  of  the  qualities  of  person 
and  of  thing,  which  has  led  to  many  legal  contradic- 
tions. But  while  no  rights  or  obligations,  in  rela- 
tions between  him  and  other  natural  persons  such 
as  might  be  judicially  enforced  by  or  against  him, 
were  attributed  to  him,  there  was  a  propriety  in 
distinguishing  the  condition  as  chattel  slavery,  even 
though  the  term  itself  implies  that  there  is  an 
essential  distinction  between  such  a  person  and  nat- 
ural things,  of  which  it  seems  absurd  to  say  that 
they  are  either  free  or  not  free.  The  phrases  instar 
rerum,  tanquam  .bona,  are  aptly  used  by  older  writ- 
ers. The  bondage  of  the  villein  could  not  be  thus 
characterized;  and  there  is  no  historical  connection 
between  the  principles  which  determined  the  exist- 
ence of  the  one  and  those  which  sanctioned  the  other. 
The  law  of  English  villenage  furnished  no  rules  ap- 
plicable to  negro  slavery  in  America.  Com.  v.  Tur- 
ner, 5  Rand.  (Va.)  680,  683;  Fable  v.  Brown,  2  Hill, 
Ch.  (S.  C.)  390  ;  Neal  v.  Farmer,  9  Ga.  561 ;  1  Hurd, 
Law  of  Freedom  and  Bondage,  cc.  4,  5.  Slavery  in 
the  colonies  was  entirely  distinct  from  the  condition 
of  those  white  persons  who  were  held  to  service  for 
years,  which  was  involuntary  in  its  continuance, 
though  founded  in  most  instances  on  contract. 
These  persons  had  legal  rights,  not  only  in  respect 
to  the  community  at  large,  but  also  in  respect  to 
the  person  to  whom  they  owed  service. 

In  the  American  slaveholding  states  before  the 
Civil  War,  the  moral  personality  of  those  held  in 
the  customary  slavery  was  recognized  by  jurispru- 
dence and  statute  to  an  extent  which  makes  it  diffi- 
cult to  say  whether,  there,  slaves  were  by  law  re- 
garded as  things  and  not  legal  persons  (though  sub- 
ject to  the  laws  which  regulate  the  title  and  trans- 
fer of  property),  or  whether  they  were  still  things 
and  property  in  the  same  sense  and  degree  in  which 


BONDAGE 


378 


BONDED  WAREHOUSE 


they  were  so  formerly.  Compare  laws  and  authori- 
ties in  Cobb's  Law  of  Negro  Slavery,  ch.  iv.,  v. 

The  Emancipation  Proclamation  (January  1,  1863), 
and  the  amendments  to  the  constitution  of  the  Unit- 
ed States,  have  rendered  the  views  entertained  on 
the  subject  purely  speculative,  as  slavery  has  ceas- 
ed to  exist 

The  Emancipation  Proclamation  was  issued  by 
President  Lincoln  as  commander-in-chief  of  the 
army  and  navy  of  the  United  States  during  the  ex- 
istence of  armed  rebellion,  and  by  its  terms  pur- 
ported to  be  nothing  more  than  "a  fit  and  necessary 
war  measure  for  suppressing  said  rebellion."  By 
virtue  of  this  power,  it  was  therein  ordered  and  de- 
clared that  all  persons  held  as  slaves  within  certain 
designated  states,  and  parts  of  states,  were  and 
henceforward  should  be  free,  and  that  the  executive 
government  of  the  United  States,  including  the 
military  and  naval  authorities  thereof,  should  rec- 
ognize and  maintain  the  freedom  of  said  persons. 
The  proclamation  was  not  meant  to  apply  to  those 
states  or  parts  of  states  not  in  rebellion. 

The  constitutionality  of  this  measure  has  been  a 
subject  of  some  doubt,  the  prevailing  opinion  being 
that  it  could  be  supported  as  a  war  measure  alone, 
and  apply  where  the  slaveholding  territory  was  ac- 
tually subdued  by  the  military  power  of  the  United 
States;  Slaughter-House  Cases,  16  Wall.  (U.  S.)  68, 
21  L.  Ed.  .394;  In  South  Carolina,  it  has  been  held 
that  slavery  was  not  abolished  by  the  Emancipation 
Proclamation,  and  the  same  view  was  sustained  in 
Texas;  Pickett  v.  Wilkins,  13  Rich.  Eq.  (S.  C.)  366; 
Hall  v.  Keese,  31  Tex.  504.  In  Louisiana,  Posey  v. 
Driggs,  20  La.  Ann.  199,  and  Alabama,  Morgan  v. 
Nelson,  43  Ala.  592,  the  opposite  view  is  held.  But 
see  McElvain  v.  Mudd,  44  Ala.  70,  4  Am.  Rep.  106. 
In  Mississippi  the  question  of  the  time  when  slav- 
ery was  abolished  is  left  open ;  Herrod  v.  Davis,  43 
Miss.   102. 

The  13th  Amendment  to  the  constitution,  pro- 
claimed Dec.  18,  1865,  was  the  definite  settlement  of 
the  question  of  slavery  in  the  United  States.  It 
declares,  "1.  Neither  slavery  nor  involuntary  servi- 
tude, except  as  a  punishment  for  crime,  whereof  the 
party  shall  have  been  duly  convicted,  shall  exist 
within  the  United  States,  or  any  place  subject  to  its 
jurisdiction.  2.  Congress  shall  have  power  to  en- 
force this  article  by  appropriate  legislation."  See 
Slave  ;    Manumission. 

BONDED  WAREHOUSE.  A  warehouse 
for  the  storage  of  goods,  wares  and  merchan- 
dise, deposited  pursuant  to  law,  held  under 
bond  for  the  payment  of  duties  or  revenue 
taxes. 

Under  the  act  authorizing  persons  to  keep 
a  warehouse  for  the  storage  of  dutiable 
goods,  it  was  held  that  no  person  has  any 
right  to  do  so  unless  appointed  by  the  Secre- 
tary of  the  Treasury,  and  such  appointment 
can  be  revoked  at  pleasure;  Corkle  v.  Max- 
well, Fed.  Cas.  No.  3,231.  Goods  in  a  bonded 
warehouse  under  the  revenue  laws,  are  in 
possession  of  the  sovereign  and  no  lien  can 
be  obtained  thereon  by  a  creditor ;  In  re 
Johnston,  Fed.  Cas.  No.  7,424.  The  statutes 
regulating  bonded  warehouses,  usually  pro- 
vide that  goods  deposited  therein  may  be 
withdrawn  for  consumption  within  one  year 
of  the  date  of  original  importation,  on  pay- 
ment of  duties  and  charges ;  Allen  v.  Jones, 
24  Fed.  13.  The  Tariff  Act  of  1909  makes 
the  period  of  withdrawal  three  years ;  sec. 
20.  The  goods  cannot  be  transferred  from 
the  original  packages  for  safety  or  preserva- 
tion while  in  the  warehouse,  unless  entered 
for  exportation  and  legally  removed  from  the 
warehouse  into  the  possession  of  the  import- 


er; W.  H.  Thomas  &  Son  Co.  v.  Barnett, 
144  Fed.  338,  75  C.  C.  A.  300.  The  expense 
of  storage  of  imported  merchandise  pending 
inspection  and  analysis  under  the  Pure  Food 
Law  should  be  borne  by  the  government  and 
not  by  the  importer ;  U.  S.  v.  Acker,  Merrall 
&  Condit,  133  Fed.  842.  The  Tariff  Act  of 
1913  re-enacts  the  former  law,  with  an 
amendment  permitting  the  manufacture  of 
cigars  in  a  bonded  warehouse.  Ore  and  met- 
al smelting  and  refining  works  may  be  des- 
ignated as  bonded  warehouses. 

BONIS  NON  AMOVENDIS.  A  writ  ad- 
dressed to  the  sheriff,  when  a  writ  of  error 
has  been  brought,  commanding  that  the  per- 
son against  whom  judgment  has  been  obtain- 
ed be  not  suffered  to  remove  his  goods  till 
the  error  be  tried  and  determined.  Reg. 
Orig.  131. 

BONITARIAN  OWNERSHIP.  DOMINI- 
UM BONITARIUM.  The  term  in  bonis  ha- 
bere was  used  to  express  an  ownership  which 
was  practically  absolute,  because  it  was  pro- 
tected by  the  authority  of  the  praetor  in  cas- 
es where,  wishing  to  give  all  the  advantages 
of  ownership,  he  was  prevented  by  the  civil 
law  from  giving  the  legal  (Quiritarian)  do- 
minium. 

BONO  ET  MALO.  A  special  writ  of  jail 
delivery,  which  formerly  issued  of  course  for 
each  particular  prisoner.    4  Bla.  Com.  270. 

BONUS.  A  premium  paid  to  a  grantor  or 
vendor. 

A  sum  exacted  by  the  state  from  a  cor- 
poration as  a  consideration  for  granting  a 
charter;  in  such  case  it  is  clearly  distin- 
guished from  a  tax;  Baltimore  &  O.  R.  Co. 
v.  Maryland,  21  Wall.  (U.  S.)  456,  22  L.  Ed. 
678 ;    Com.  v.  Transp.  Co.,  107  Pa.  112. 

A  consideration  given  for  what  is  received. 
Extraordinary  profit  accruing  in  the  opera- 
tion of  a  stock  company  or  private  corpora- 
tion. 10  Ves.  Ch.  185;  7  Sim.  634;  2  Spence, 
Eq.  Jur.  569. 

An  additional  premium  paid  for  the  use 
of  money  beyond  the  legal  interest.  Mechan- 
ics' &  Working  Men's  Mut.  Sav.  Bank  &  Bldg. 
Ass'n  of  New  Haven  v.  Wilcox,  24  Conn.  147. 
It  it  not  a  gift  or  gratuity,  but  is  paid  for 
some  services  or  consideration  and  is  in 
addition  to  what  would  ordinarily  be  given ; 
Kenicott  v.  Wayne  County,  16  Wall.  (U.  S.) 
452,  21  L.  Ed.  319. 

In  its  original  sense  of  good  the  word  was  for- 
merly much  used.  Thus,  a  jury  was  to  be  composed 
of  twelve  good  men  (boni  homines) ;  3  Bla.  Com. 
349;    bonus  judex   (a  good  judge).     Co.  Litt.  246. 

BOOK.  A  general  name  given  to  every 
literary  composition  which  is  printed,  but 
appropriately  to  a  printed  composition  bound 
in  a  volume.     See  Copyright. 

A  manuscript  may,  under  some  circum- 
stances, be  regarded  as  a  "book;"  In  re 
Beecher's  Estate,  17  Pa.  C  C.  R.  161 ;  8  L.  J. 
Ch.  105. 


BOOK-LAND 


379 


BOOKS  OF  SCI 


BOOK-LAND.  In  English  Law.  Land, 
also  called  charter-land,  which  was  held  by 
deed  under  certain  rents  and  fee  services, 
ai?d  differed  in  nothing  from  free  socage 
land.  2  Bla.  Com.  90.  See  2  Spelman,  Eng- 
lish Works  233,  tit.  Of  Ancient  Deeds  and 
Charters;   Boc-Land. 

Lai;d  held  by  book,  by  a  royal  and  eccle- 
siastical privilegium.  Maitland,  Domesday 
and  Beyond  257.  The  church  introduced  the 
custom  of  conveying  land  by  written  docu- 
ments. The  "boc"  or  written  charter  was 
ecclesiastical  in  its  origin.  It  was  used  by 
the  king,  the  church  or  very  great  men.  The 
practice  never  became  common.  2'  Holdsw. 
Hist.  E.  L.  14,  60. 

BOOK  OF  ACCOUNT.  See  Original  En- 
try, Books  of. 

BOOK  OF  ACTS.  The  records  of  a  sur- 
rogate's court. 

BOOK  OF  ADJOURNAL.  In  Scotch  Law. 
The  records  of  the  court  of  justiciary. 

BOOK  OF  RATES.  An  account  or  enu- 
meration of  the  duties  or  tariffs  authorized 
by  parliament.    1  Bla.  Com.  316. 

BOOK  OF  RESPONSES.  In  Scotch  Law. 
An  account  which  the  director  of  the  Chan- 
cery keeps  particularly  to  note  a  seizure 
when  he  gives  an  order  to  the  sheriff  in  that 
part  to  give  it  to  an  heir  whose  service  has 
been  returned  to  him.     Wharton,  Lex. 

BOOKS  OF  ORIGINAL  ENTRIES.  See 
Original  Entry,  Books  of. 

BOOKS  OF  SCIENCE.  Scientific  books, 
even  of  received  authority,  are  not  admissi- 
ble in  evidence  before  a  jury;  5  C.  &  P.  73; 
Com.  v.  Sturtivant,  117  Mass.  122,  19  Am. 
Rep.  401;  Harris  v.  R.  Co.,  3  Bosw.  (N.  Y.) 
18;  2  Carl.  617;  1  Greenl.  Ev.  §  440,  a;  ex- 
cept to  contradict  an  expert  who  bases  bis 
opinion  upon  them;  City  of  Bloomington  v. 
Shrock,  110  111.  219,  51  Am.  Rep.  678;  stand- 
ard medical  works  with  explanation  of  tech- 
nicalities are  admissible ;  Carter  v.  State,  2 
Ind.  617 ;  Stoudenmeir  v.  Williamson,  29  Ala. 
558.  Counsel  may  read  such  books  to  the 
jury  in  their  argument;  State  v.  Hoyt,  46 
Conn.  330  (two  judges  dissenting);  contra, 
Com.  v.  Wilson,  1  Gray  (Mass.)  337;  Ord- 
way  v.  Haynes,  50  N.  H.  159 ;  People  v.  An- 
derson, 44  Cal.  65;  Gale  v.  Rector,  5  111. 
App.  481.  In  Wade  v.  De  Witt,  20  Tex.  398 
and  Luning  v.  State,  1  Chand.  (Wis.)  178, 
it  was  held  that  the  admission  of  such  evi- 
dence was  in  the  discretion  of  the  court.  See 
26  Am.  Law  Rev.  390;  Wade  v.  De  Witt.  20 
Tex.  39S;  Washburn  v.  Cuddihy,  8  Gray 
(Mass.)  430;  Gallagher  v.  Ry.  Co.,  67  Cal. 
13,  6  Tac.  869,  51  Am.  Rep.  6S0,  n. 

The  law  of  foreign  countries  may  be  prov- 
ed by  printed  books  of  statutes,  reports,  and 
text  writers,  as  well  as  by  the  sworn  testi- 
mony of  experts ;  so  held,  in  a  learned  opin- 
ion by  Lowell,  J.,  in  the  U.  S.  C.  C.  The 
Pawashick,  2  Low.  142,  Fed.  Cas.  No.  10.S51. 


See  Farmers'  Loan  &  Trust  Co.  v.  Telegraph 
Co.,  44  Hun  (N.  Y.)  400;  Bollinger  v. 
lagher,  163  Pa.  245,  29  Atl.  751,  43  Am.  St 
Rep.  791;  contra,  but  without  authority, 
Dickerson  v.  Matheson,  50  Fed.  73.  A  scien- 
tific witness  may  testify  to  the  written  for- 
eign law,  with  or  without  the  text  of  the  law 
before  him;  11  CI.  &  F.  85,  114;  8  Q.  B.  208. 
It  has  been  said  that  foreign  law  must  al- 
ways be  proved  by  an  expert;  1  GreenL  Ev. 
486,  488;  but  see  WestL  Pr.  Int.  Law  (3d 
ed.)  §  356;  but  the  court  may  in  its  discre- 
tion require  the  printed  book  of  law  to  be 
produced  in  order  to  corroborate  the  witness; 
Pierce  v.  Indseth,  106  U.  S.  546,  1  Sup.  Ct. 
418,  27  L.  Ed.  254. 

See  Foreign  Law  ;    Experts. 

BOOKS,  PRODUCTION  OF.  See  Produc- 
tion of  Books  and  Documents. 

BOOM.  An  enclosure  formed  upon  the 
surface  of  a  stream  or  other  body  of  water, 
by  means  of  spars,  for  the  purpose  of  collect- 
ing or  storing  logs  or  timber.  10  Am.  &  Eng. 
Corp.  Cas.  399.    See  Logs. 

BOOM  COMPANY.  A  company  formed  for 
the  purpose  of  improving  streams  for  the 
floating  of  logs,  by  means  of  booms  and  other 
contrivances,  and  for  the  purpose  of  running, 
driving,  booming,  and  rafting  logs.  10  Am. 
&  Eng.  Corp.  Cas.  399;   A.  &  E.  Encyc. 

BO  ON- DAYS.  Certain  days  in  the  year  on 
which  copyhold  tenants  were  bound  to  per- 
form certain  services  for  the  lord.  Called, 
also,  due-days.     Whishaw. 

BOOTY.  The  capture  of  personal  proper- 
ty by  a  public  enemy  on  land,  in  contra- 
distinction to  prize,  which  is  a  capture  of 
such  property  by  such  an  enemy  on  the  sea. 

After  booty  has  been  in  complete  pos- 
session of  the  enemy  for  twenty-four  hours, 
it  becomes  absolutely  his,  without  any  right 
of  postliminy  in  favor  of  the  original  owner, 
particularly  when  it  has  passed  bona  fide 
into  the  hands  of  a  neutral ;  1  Kent  110. 
The  right  to  booty  belongs  to  the  sovereign; 
but  sometimes  the  right  of  the  sovereign,  or 
of  the  public,  is  transferred  to  the  soldiers, 
to  encourage  them  ;  Pothier,  Droit  de  Prop- 
rtttt,  p.  1,  c.  2,  a.  1,  §  2;  2  BurL  Nat.  &  PoL 
Law,  pt.  4,  c.  7,  n.  12. 

BORDAGE.  A  species  of  base  tenure  by 
which  bordlands  were  held.  The  tenants 
were  called  bordarii.  These  bordarii  would 
seem  to  have  been  those  tenants  of  a  less 
servile  condition,  who  had  a  cottage  and  land 
assigned  to  them  on  condition  of  supplying 
their  lord  witli  poultry,  e;_ru's,  and  such  small 
matters  for  his  table.     Whishaw  ;    Cowell. 

BORDEREAU.  In  French  law,  a  detailed 
statement  of  account;  a  summary  of  an  in- 
strument. 

BORDLANDS.  The  demesnes  which  the 
lords  keep  in  their  hand*;  for  the  mainte- 
nance of  their  board  or  table.     Cowell. 


BORDLODE 


380 


BOROUGH  ENGLISH 


BORDLODE.  The  rent  or  quantity  of 
food  which  the  bordarii  paid  for  their  lands. 
Co  well. 

BORG    (Sax.).     Suretyship. 
Borgbriche   (violation   of   a  pledge  or   suretyship) 
was  a  fine  imposed  on  the  borg  for  property  stolen 
within  its  limits. 

A  tithing  in  which  each  one  became  a 
surety  for  the  others  for  their  good  behav- 
ior. Spelman,  Gloss.;  Cowell ;  1  Bla.  Com. 
115. 

BORN.  It  is  now  settled  according  to  the 
dictates  of  common  sense  and  humanity,  that 
a  child  en  ventre  sa  mire  for  all  purposes 
for  his  own  benefit,-  is  considered  as  absolute- 
ly born;  Swift  v.  Duffield,  5  S.  &  R.  (Pa.) 
40. 

If  an  infant  is  born  dead  or  at  such  an 
early  stage  of  pregnancy  as  to  be  unable  to 
live,  it  is  to  be  considered  as  never  born; 
Marsellis  v.  Thalhimer,  2  Paige,  Ch.  (N. 
Y.)  35. 

See  Birth  ;  En  Ventre  Sa  Mere. 

BOROUGH.  A  town;  a  town  of  note  or 
importance.  Cowell.  An  ancient  town.  Lit- 
tleton §  164.  A  town  which  sends  burgesses 
to  parliament,  whether  corporate  or  not.  1 
Bla.  Com.  115 ;  Whishaw. 

A  corporate  town  that  is  not  a  city.  1  M. 
&  G.  1 ;  Cowell.  In  its  more  modern  English 
acceptation,  it  denotes  a  town  or  city  or- 
ganized for  purposes  of  government.  3  Steph. 
Com.  (11th  ed.)  33.     See  Town. 

It  is  impossible  to  reconcile  the  meanings  of  this 
word  given  by  the  various  authors  cited,  except  up- 
on the  supposition  of  a  change  of  requirements  nec- 
essary to  constitute  a  borough  at  different  periods. 
The  only  essential  circumstance  which  underlies  all 
the  meanings  given  would  seem  to  be  that  of  a  num- 
ber of  citizens  bound  together  for  purposes  of  joint 
action,  varying  in  the  different  boroughs,  but  being 
either  for  representation  or  for  municipal  govern- 
ment. 

Many  causes,  in  no  two  cases  quite  alike,  went  to 
make  up  the  peculiar  community  which  the  13th 
Century  recognized  as  a  borough.  The  borough 
community,  though  a  different  variety,  is  not  a 
different  genus  from  that  of  the  other  communities 
with  which  England  of  the  early  Middle  Ages  was 
peopled;  2  Holdsw.  Hist.  E.  L.  257.  See  Bubh; 
Brit.  Borough  Charters  1042-1216,  by  Bolland ;  Bat- 
teson,   Borough   Customs. 

In  American  Law.  In  Pennsylvania,  the 
term  denotes  a  political  division,  organized 
for  municipal  purposes ;  and  the  same  is  true 
of  Connecticut  and  New  Jersey.  Sav.  Bor. 
L.  4;  Southport  v.  Ogden,  23  Conn.  128;  see 
also  Brown  v.  State,  18  Ohio  St.  496;  1  Dill. 
Mun.  Corp.  §  41,  n. 

In  Scotch  Law.  A  corporation  erected  by 
charter  from  the  crown.    Bell,  Diet. 

BOROUGH     COURTS.       In     English     Law. 

Courts  of  limited  jurisdiction  held  in  par- 
ticular districts  by  prescription,  charter,  or 
act  of  parliament,  for  the  prosecution  of  pet- 
ty suits.  19  Geo.  III.  c.  70;  3  Will.  IV.  c. 
74 ;  3  Bla.  Com.  80.    See  Courts  of  England. 

BOROUGH  ENGLISH.  A  custom  preva- 
lent in  some  parts  of  England,  by  which  the 


youngest  son  inherits  the  estate  in  preference 
to  his  older  brothers.    1  Bla.  Com.  75. 

The  custom  is  said  by  Blackstone  to  have  been  de- 
rived from  the  Saxons,  and  to  have  been  so  called  in 
distinction  from  the  Norman  rule  of  descent ;  2  Bla. 
Com.  83.  A  reason  for  the  custom  is  found  in  the 
fact  that  the  elder  children  were  usually  provided 
for  during  the  life  of  the  parent  as  they  grew  up, 
and  removed,  while  the  younger  son  usually  re- 
mained. See,  also,  Bacon,  Abr.  ;  Comyns,  Dig.  Bor- 
ough English;  Termes  de  la  Ley ;  Cowell.  The  cus- 
tom applies  to  socage  lands;  2  Bla.  Com.  83.  See 
Burgage. 

BORROW.  The  word  is  often  used  in  the 
sense  of  returning  the  thing  borrowed  in 
specie,  as  to  borrow  a  book,  or  any  other 
thing  to  be  returned  again.  But  it  is  evi- 
dent where  money  is  borrowed  the  identical 
money  loaned  is  not  to  be  returned,  because 
if  this  is  so,  the  borrower  would  derive  no 
benefit  from  the  loan.  In  a  broad  sense  it 
means  a  contract  for  the  use  of  money. 
State  v.  School  Dist  No.  24,  13  Neb.  88,  12 
N.  W.  812 ;   Kent  v.  Min.  Co.,  78  N.  Y.  177. 

BORROWER.  He  to  whom  a  thing  is  lent 
at  his  request. 

In  general  he  has  the  right  to  use  the 
thing  borrowed,  himself,  during  the  time  and 
for  the  purpose  intended  between  the  par- 
ties. He  is  bound  to  take  extraordinary  care 
of  the  thing  borrowed ;  to  use  it  according  to 
the  intention  of  the  lender;  to  restore  it  in 
proper  condition  at  the  proper  time;  Story, 
Bailm.  §  268 ;  Edw.  Bailm.  135 ;  2  Kent  446. 
See  Bailment. 

BOSCAGE.  That  food  which  wood  and 
trees  yield  to  cattle. 

To  be  quit  of  boscage  is  to  be  discharged  of  pay- 
ing any  duty  of  wind-fall  wood  in  forest ;  Whi- 
shaw;   Manwood,  For.  Laws. 

B0SCUS.  Wood  growing;  wood;  both 
high  wood  or  trees,  and  underwood  or  cop- 
pice. The  high  wood  is  properly  called 
saltus.    Spelman,  Gloss. ;   Co.  Litt.  5  a. 

BOTE,  B0T.  A  recompense  or  compensa- 
tion. The  common  word  to  hoot  comes  from 
this  word.  Cowell.  The  term  is  applied  as 
well  to  making  repairs  in  houses,  bridges, 
etc.,  as  to  making  a  recompense  for  slaying 
a  man  or  stealing  property.  House  bote,  ma- 
terials which  may  be  taken  to  repair  a  house; 
hedge  bote,  to  repair  hedges;  brig  bote,  to 
repair  bridges;  man  bote,  compensation  to 
be  paid  by  a  murderer.  It  was  this  system 
of  bot  and  wer,  resting  upon  blood-feud  and 
upon  outlawry,  which  was  the  ground  work 
of  the  Anglo-Saxon  criminal  law ;  2  Holdsw. 
Hist.  E.  L.  36. 

Bote  is  known  to  the  English  law  also  un- 
der the  name  of  Estover;  1  Washb.  R.  P. 
*99 ;  2  Bla.  Com.  35.  The  tenant  for  life  was 
entitled  to  take  reasonable  "botes"  and  "es- 
tovers," without  committing  waste.  3 
Holdsw.  Hist.  E.  L  105. 

BOTTOMRY.  A  contract  in  the  nature  of 
a  mortgage,  by  which  the  owner  of  a  ship, 
or  the  master,  as  his  agent,  borrows  money 
for  the  use  of  the  ship,  and  for  a  specified 


BOTTOMRY 


381 


BOTTOMRY 


voyage,  or  for  a  definite  period,  pledges  the 
ship  (or  the  keel  or  bottom  of  the  ship,  para 
prototo)  as  a  security  for  its  repayment, 
with  maritime  or  extraordinary  interest  on 
account  of  the  marine  risks  to  be  borne  by 
the  lender;  it  being  stipulated  that  if  the 
ship  be  lost  in  the  course  of  the  specified 
voyage,  or  during  the  limited  time  by  any  of 
the  perils  enumerated  in  the  contract,  the 
lender  shall  also  lose  his  money.  2  Hagg. 
A  dm.  48 ;  2  Sumn.  157.  See  Davies  &  Co.  v. 
Soelberg,  24  Wash.  308,  64  Pac.  540. 

Bottomry  differs  materially  from  an  ordinary 
loan.  Upon  a  simple  loan  the  money  is  wholly  at 
the  risk  of  the  borrower,  and  must  be  repaid  at  all 
events.  But  In  bottomry,  the  money,  to  the  extent 
of  the  enumerated  perils,  is  at  the  risk  of  the  lender 
during  the  voyage  on  which  it  is  loaned,  or  for  the 
period  specified.  Upon  an  ordinary  loan  only  the 
usual  legal  rate  of  interest  can  be  reserved ;  but 
upon  bottomi~y  and  respondentia  loans  any  rate  of 
Interest,  not  grossly  extortionate,  which  may  be 
agreed  upon,  may  be  legally  contracted  for. 

When  the  loan  is  not  made  upon  the  ship,  but  on 
the  goods  laden  on  board  and  which  are  to  be  sold 
or  exchanged  in  the  course  of  the  voyage,  the  bor- 
rower's personal  responsibility  is  deemed  the  prin- 
cipal security  for  the  performance  of  the  contract, 
which  is  therefore  called  respondentia,  which  see. 
And  in  a  loan  upon  respondentia  the  lender  must  be 
paid  his  principal  and  interest  though  the  ship  per- 
ish, provided  the  goods  are  saved.  In  most  other 
respects  the  contracts  of  bottomry  and  of  respon- 
dentia stand  substantially  upon  the  same  footing. 
See  further,  10  Jur.  845  ;  4  Thornt.  285,  512  ;  2  W. 
Rob.  Adm.  83-85;  Thompson  v.  Perkins,  3  Mas.  225, 
Fed.  Cas.  No.  13,972. 

Bottomry  bonds  may  be  given  by  a  master 
appointed  by  the  charterers  of  the  ship,  by 
masters  necessarily  substituted  or  appointed 
abroad,  or  by  the  mate  who  has  become 
master,  as  hwres  necessarius,  on  the  death 
of  the  appointed  master.  1  Dod.  278;  3 
Hagg.  Adm.  18 ;  The  Fortitude,  3  Sumn.  246, 
Fed.  Cas.  No.  4,953.  But  while  in  a  port  in 
which  the  owners,  or  one  of  them,  or  a  recog- 
nized agent  of  the  owners,  reside,  the  master, 
as  such,  has  no  authority  to  make  contracts 
affecting  the  ship,  and  a  bottomry  bond  exe- 
cuted under  such  circumstances  is  void ; 
Lavinia  v.  Barclay,  1  Wash.  C.  C.  49,  Fed. 
Cas.  No.  8,125;  22  Eng.  L.  &  Eq.  623.  Unless, 
it  has  been  held  in  an  English  case,  he  has  ho 
means  of  communicating  with  the  owners ; 
1  Dod.  273.  See  7  Moore's  P.  C.  C.  398. 
The  master  has  authority  to  hypothecate  the 
vessel  only  in  a  foreign  port ;  but  in  the 
jurisprudence  of  the  United  States  all  mari- 
time ports,  other  than  those  of  the  state 
where  the  vessel  belongs,  are  foreign  to  the 
vessel ;  Burke  v.  Rich,  1  Cliff.  308,  Fed.  Cas. 
No.  2,161;  The  William  &  Emmeline,  1 
Blatch.  &  H.  66,  Fed.  Cas.  No.  17,687;  The 
Hilarity,  1  Blatch.  &  H.  90,  Fed.  Cas.  No.  6,- 
480. 

The  owner  of  the  vessel  may  borrow  upon 
bottomry  in  the  vessel's  home  port,  and 
■whether  she  is  in  port  or  at  sea;  and  it  is 
not  necessary  to  the  validity  of  a  bond  made 
by  the  owner  that  the  money  borrowed 
should  be  advanced  for  the  necessities  of 
the   vessel   or   her   voyage;    The   Draco,   2 


Sumn.  157,  Fed.  Cas.  No.  4.057;    The  Mary. 

1  Paine,  671,  Fed.  Cas.  No.  2  I 

R.  461.    But  it  may  well  be  doubted,  whether 
when  money  is  thus  borrowed  by  the  <• 
for  purposes'  other  than   necessities  or 
of   the   ship,    and   a   bottomry    bond   in   the 
usual   form    is   given,    a    court  of   admiralty 
has  jurisdiction  to  enforce  the  lien;    Bee  348. 
As  a  contract  made  and  to  be  performed  on 
land,    and    having   no    necessary   connection 
with   the  business  of  navigation,   it  is 
able  that  it  would  not  now  be  deemed  a  mar- 
itime contract,  but  would  take  effect  ami  be 
enforced  as   a    common-law   mortgage.      See 
Hurry  v.  John  &  Alice.  1   Wash.  C.  C. 
Fed.    Cas.    No.    6,923;     Shrewsbury    v.    Two 
Friends,   Bee,  433,   Fed.   Cas.   No.   12,81ti :     I 
Swab.  269.     But  see  The  Mary,  1  Paine  671, 
Fed.  Cas.  No.  9,187;    Rucher  v.  Conyngham, 

2  Pet.  Adm.  295,  Fed.  Cas.  No.  12,106. 

If  the  bond  be  executed  by  the  master  of 
the  vessel,  it  will  be  upheld  and  enforced 
only  upon  proof  that  there  was  a  necessity 
for  the  loan,  and  also  for  pledging  the  credit 
of  the  ship ;  as  the  authority  of  the  master 
to  borrow  money  on  the  credit  of  the  vessel 
rests  upon  the  necessity  of  the  case,  and  only 
exists  under  such  circumstances  of  necessity 
as  would  induce  a  prudent  owner  to  hypothe- 
cate his  ship  to  raise  money  for  her  use;  3 
Hagg.  Adm.  66,  74;  The  Fortitude,  3  Sumn. 
228,  Fed.  Cas.  No.  4,953;  The  Aurora,  1 
Wheat.  (U.  S.)  96,  4  L.  Ed.  45;  The  Mary.  1 
Paine,  671,  Fed.  Cas.  No.  9,187;  Tunno  v. 
The  Mary,  Bee,  120,  Fed.  Cas.  No.  14.237. 
His  authority  is  not  confined,  however,  to 
such  repairs  and  supplies  as  are  absolutely 
and  indispensably  necessary,  but  includes 
also  all  such  as  are  reasonably  fit  and  proper 
for  the  ship  and  the  voyage ;  The  Lulu,  10 
Wall.  (U.  S.)  192,  19  L.  Ed.  906;  The  Emily 
Souder,  17  Wall.  (U.  S.)  666,  21  L.  Ed.  683. 

If  the  master  could  have  obtained  the 
necessary  supplies  or  funds  on  the  personal 
credit  of  himself  or  of  his  owner,  and  this 
fact  was  known  to  the  lender,  the  bond  will 
be  held  invalid  ;  The  Fortitude,  3  Sumn.  257, 
Fed.  Cas.  No.  4,953.  And  if  the  master  bor- 
rows on  bottomry  without  apparent  neces- 
sity, or  when  the  owner  is  known  to  be  acces- 
sible enough  to  be  consulted  upon  the  emer- 
gency, the  bond  is  void,  and  the  lender  can 
look  only  to  the  personal  responsibility  of 
the  master;  3  W.  Rob.  Adm.  243,  265.  For 
the  fact  that  the  advances  were  necessary, 
and  were  made  on  the  security  of  the 
is  not,  in  any  instance,  to  be  presumed;  Wal- 
den  v.  Chamberlain.  3  Wash.  C.  C.  290,  Fed. 
Cas.  No.  17,055.  And  moneys  advanced  to 
the  master  without  inquiry  as  to  the  neces- 
sity of  the  advance,  or  seeing  to  the  proper 
application,  have  been  disallowed;  33  Eng. 
L.  &  Eq.  602.  It  may  be  given  after  the 
advances  have  been  made,  in  pursuance  of 
a  prior  agreement ;  The  Virgin  v.  Vyfhius. 
8  Pet.  (U.  S.)  538,  8  L.  Ed.  1,036.  If  given 
for  a  larger  sum  than  the  actual  advances, 


BOTTOMRY 


382 


BOTTOMRY 


in  fraud  of  the  owners  or  underwriters,  it 
vitiates  the  bond  and  avoids  the  bottomry 
lien  even  for  the  sum  actually  advanced; 
Carrington  v.  The  Ann  C.  Pratt,  18  How. 
(U.  S.)  63,  15  L.  Ed.  267;  The  Ann  C.  Pratt, 
1  Curt.  C.  C.  341,  Fed.  Cas.  No.  409. 

The  contract  of  bottomry  is  usually  in 
form  a  bond  (termed  a  bottomry  bond)  con- 
ditioned for  the  repayment  of  the  money 
lent,  with  the  interest  agreed  upon,  if  the 
ship  safely  accomplishes  the  specified  voy- 
age or  completes  in  safety  the  period  limited 
by  the  contract;  The  Draco,  2  Sumn.  157, 
Fed.  Cas.  No.  4,057.  See  The  Lykus,  36  Fed. 
919.  Sometimes  it  is  in  that  of  a  bill  of  sale, 
and  sometimes  in  a  different  shape;  but  it 
should  always  specify  the  principal  lent  and 
the  rate  of  maritime  interest  agreed  upon; 
the  names  of  the  lender  and  borrower;  the 
names  of  the  vessel  and  of  her  master;  the 
subject  on  which  the  loan  is  effected,  wheth- 
er of  the  ship  alone,  or  of  the  ship  and 
freight ;  whether  the  loan  is  for  an  entire  or 
specific  voyage  or  for  a  limited  period,  and 
for  what  voyage  or  for  what  space  of  time; 
the  risks  the  lender  is  contented  to  bear ;  and 
the  period  of  repayment.  Where'  the  master 
of  a  ship  in  a  foreign  port  gives  a  draft  on 
the  owners  for  money-  advanced  for  wages 
and  supplies,  it  was  held  to  be  a'n  abbreviated 
form  of  bottomry;  Hanschell  v.  Swan,  23 
Misc.  304,  51  N.  T.  Supp.  42.  It  is  negotia- 
ble; 5  C.  Rob.  Adm.  102.  Where  the  bond 
covers  "the  vessel,  her  tackle,  apparel,  fur- 
niture, and  freight  as  per*  charter-party," 
demurrage  previously  earned  is  not  freight; 
Brett  v.  Van  Praag,  157  Mass.  132,  31  N.  E. 
761.  It  cannot  be  given  in  connection  with 
personal  security  by  the  owner  of  the  vessel 
to  pay  the  debt  regardless  of  the  return  of 
the  vessel  to  port;  Theo.  H.  Davies  &  Co.  v. 
Soelberg,  24  Wash.  308,  64  Pac.  540. 

In  case  a  highly  extortionate  or  wholly 
unjustifiable  rate  of  interest  be  stipulated 
for  in  a  bottomry  bond,  courts  of  admiralty 
will  enforce  the  bond  for  only  the  amount 
fairly  due,  and  will  not  allow  the  lender  to 
recover  an  unconscionable  rate  of  interest. 
But  in  mitigating  an  exorbitant  rate  of  in- 
terest they  will  proceed  with  great  caution. 
For  the  course  pursued  where  the  amount 
of  interest  was  accidentally  omitted,  see  1 
Swab.  240.  Fraud  will  induce  a  court  of 
equity  to  set  aside  a  bottomry  bond,  in  Eng- 
land ;   8  Sim.  358 ;   3  M.  &  C.  451,  453,  n. 

Where  the  express  contract  of  bottomry 
is  void  for  fraud,  no  recovery  can  be  had, 
on  the  ground  of  an  implied  contract  and 
lien  of  advances  actually  made;  The  Ann  C. 
Pratt,  1  Curt.  C.  C.  340,  Fed.  Cas.  No.  409; 
Carrington  v.  The  Ann  C.  Pratt,  18  How.  (U. 
S.)  63,  15  L.  Ed.  267.  But  a  bottomry  bond 
may  be  good  in  part  and  bad  in  part;  The 
Packet,  3  Mas.  255,  Fed.  Cas.  No.  10,654; 
Furniss  v.  The  Magoun,  Olc.  55,  Fed,  Cas. 
No.  5,163.  And  it  has  been  held  in  England 
that  fraud  of  the  owner  or  mortgagor  of  a 


vessel,  which  might  render  the  voyage  illegal, 
does  not  invalidate  a  bottomry  bond  to  a 
bona  fide  lender ;    L.  R.  1  Adm.  &  Ec.  13. 

Not  only  the  ship,  her  tackle,  apparel,  and 
furniture  (and  the  freight,  if  specifically 
pledged),  are  liable  for  the  debt  in  case  the 
voyage  or  period  is  completed  in  safety,  but 
the  borrower  is  also,  in  that  event,  person- 
ally responsible.  See  2  Bla.  Com.  457  ;  Brett 
v.  Van  Praag,  157  Mass.  132,  31  N.  E.  761. 
It  binds  not  only  the  ship  but  her  entire 
earnings,  as  against  prior  bottomries,  mort- 
gages and  other  loans  to  the  owner  or  mas- 
ter; The  Anastasia,  Fed.  Cas.  No.  347.  But 
only,  it  would  seem,  in  cases  in  which  such 
responsibility  has  been  especially  made  a 
condition  of  the  bond;  Kelly  v.  Cushing,  48 
Barb.  (N.  Y.)  269. 

The  borrower  on  bottomry  is  affected  by 
the  doctrines  of  seaworthiness  and  devia- 
tion; 3  Kent  360;  and  if,  before  or  after  the 
risk  on  the  bottomry  bond  has  commenced, 
the  voyage  or  adventure  is  voluntarily 
broken  up  by  the  borrower,  in  any  manner 
whatsoever,  whether  by  a  voluntary  aban- 
donment of  the  voyage  or  adventure,  or  by  a 
deviation  or  otherwise,  the  maritime  risks 
terminate,  and  the  bond  becomes  presently 
payable;  The  Draco,  2  Sumn.  157,  Fed.  Cas. 
No.  4,057 ;  3  Kent  360.  But  maritime  inter- 
est is  not  recoverable  if  the  risk  has  not  com- 
menced. 

But  in  England  and  America  the  estab- 
lished doctrine  is  that  the  owners  are  not 
personally  liable,  except  to  the  extent  of  the 
fund  pledged  which  has  come  into  their 
hands;  The  Virgin  v.  Vyfhius,  8  Pet.  (U. 
S.)  538,  554,  8  L.  Ed.  1036;  1  Hagg.  Adm.  1, 
13.  If  the  ship  or  cargo  be  lost,  not  by  the 
enumerated  perils  of  the  sea,  but  by  the 
fraud  or  fault  of  the  borrower  or  master, 
the  hypothecation  bond  is  forfeited  and  must 
be  paid. 

The  risks  assumed  by  the  lender  are  usual- 
ly such  as  are  enumerated  in  the  ordinary 
policies  of  marine  insurance.  If  the  ship  be 
wholly  lost  in  consequence  of  these  risks,  the 
lender,  as  before  stated,  loses  his  money;  but 
the  doctrine  of  constructive  total  loss  does 
not  apply  to  bottomry  contracts ;  1  Maule  & 
S.  30;  Pope  v.  Nickerson,  3  Sto.  465,  Fed. 
Cas.  No.  11,274.     See  13  C.  B.  442. 

It  is  usual  in  bottomry  bonds  to  provide 
that,  in  case  of  damage  to  the  ship  (not 
amounting  to  a  total  loss)  by  any  of  the 
enumerated  perils,  the  lender  shall  bear  his 
proportion  of  the  loss,  viz.:  an  amount 
which  will  bear  the  same  proportion  to  the 
whole  damage  that  the  amount  lent  bears 
to  the  whole  value  of  the  vessel  prior  to  the 
damage.  Unless  the  bond  contains  an  ex- 
press stipulation  to  that  effect,  the  lender  is 
not  entitled  to  take  possession  of  the  ship 
pledged,  even  when  the  debt  becomes  due ; 
but  he  may  enforce  payment  of  the  debt  by 
a  proceeding  in  rem,  in  the  admiralty, 
against  the  ship;    under  which  she  may  be 


BOTTOMRY 


383 


BOTTOMRY 


arrested,  and,  in  pursuance  of  a  decree  of 
the  court,  ultimately  sold  for  the  payment 
of  the  amount  due.  And  this  is  the  ordi- 
nary and  appropriate  remedy  of  the  lender 
upon  bottomry ;  though  he  has  also,  as  a 
general  rule,  his  remedy  by  action  of  cove- 
nant or  debt  at  common  law  upon  the  bond; 
Tyl.  Mar.  Loans  7S2.  It  was  held  In  Mis- 
sissippi that  state  legislatures  have  no  au- 
thority to  create  maritime  liens,  or  confer  ju- 
risdiction on  state  courts  to  enforce  such  liens 
by  proceedings  in  rem.  Such  jurisdiction  is 
exclusively  in  the  courts  of  admiralty  of 
the  United  States;  Murphey  v.  Trade  Co., 
49  Ala.  436;  The  Belfast,  7  Wall.  (U. 
S.)  624,  19  L.  Ed.  266. 

In  entering  a  decree  in  admiralty  upon  a 
bottomry  bond,  the  true  rule  is  to  consider 
the  sum  lent  and  the  maritime  interest  as 
the  principal,  and  to  allow  common  interest 
on  that  sum  from  the  time  such  principal 
became  due;  The  Packet,  3  Mas.  255,  Fed. 
Cas.  No.  10,654.  Where  money  is  necessarily 
taken  up  on  bottomry  to  defray  the  expenses 
of  repairing  a  partial  loss,  against  which  the 
vessel  is  insured,  the  underwriter  (although 
he  has  nothing  to  do  with  bottomry  bond)  Is 
liable  to  pay  his  share  of  the  extra  expense 
of  obtaining  the  money,  in  that  mode,  for  the 
payment  of  such  expenses;  Braalie  v.  In- 
surance Co.,  12  Pet.  (U.  S.)  378,  9  L.  Ed. 
1123. 

The  lien  or  privilege  of  a  bottomry  bond 
holder,  like  all  other  maritime  liens,  has, 
ordinarily,  preference  of  all  prior  and  subse- 
quent common-law  and  statutory  liens,  and 
binds  all  prior  interests  centering  in  the 
ship;  Blaine  v.  The  Charles  Carter,  4  Cra. 
(U.  S.)  328,  2  L.  Ed.  636.  It  holds  good  (if 
reasonable  diligence  be  exercised  in  enforc- 
ing it)  as  against  subsequent  purchasers  and 
common-law  incumbrancers;  but  the  lien  of  a 
bottomry  bond  is  not  indelible,  and,  like  other 
admiralty  liens,  may  be  lost  by  unreasonable 
delay  in  asserting  it,  if  the  rights  of  pur- 
chasers or  ineunibrancers  have  intervened ; 
The  St.  Jago  De  Cuba,  9  Wheat.  (U.  S.)  409, 
6  L.  Ed.  122;  2  W.  &  M.  48;  1  Swab.  269;  1 
Cliff.  308 ;  5  Rob.  Adm.  94.  The  lien  extends 
to  the  fund  recoverable  for  the  ship's  tortious 
destruction;  Miller  v.  O'Brien,  59  Fed.  621. 
The  rules  under  which  courts  of  admiralty 
marshal  assets  claimed  to  be  applicable  to 
the  payment  of  bottomry  and  other  maritime 
liens  and  of  common-law  and  statutory  liens, 
will  be  more  properly  and  fully  considered 
in  the  article  Maritime  Liens,  which  see. 
But  it  is  proper  here  to  state  that,  as  be- 
tween the  holders  of  two  bottomry  bonds 
upon  the  same  vessel  in  respect  to  different 
voyages,  the  later  one,  as  a  general  rule,  is 
entitled  to  priority  of  payment  out  of  the 
proceeds  of  the  vessel;  1  Dod.  201;  Furniss 
v.  The  Magoun,  Olc.  55,  Fed.  Cas.  No.  5,163. 
Seamen  have  a  lien,  prior  to  that  of  the 
holder  of  the  bottomry  bond,  for  their  wages 
for  the  voyage  upon  which  the  bottomry  is 


founded,  or  any  subsequent  voyage;  but  the 
owners  are  also  personally  liable  for  such 
wages,  and  if  the  bottomry-bond  holder  is 
compelled  to  discharge  the  seamen's  lien,  he 
has  a  resulting  right  to  compensation  over 
against  the  owners,  and  has  been  held  to 
have  a  lien  upon  the  proceeds  of  the  ship  for 
his  reimbursement;  The  Virgin  v.  Vyfhius, 
8  Pet.  (U.  S.)  538,  8  L.  Ed.  1036;  1  I! 
Adm.  62.  And  see  1  Swab.  261;  1  Dod.  40; 
Blaine  v.  The  Charles  Carter,  4  Cra.  (U.  S.) 
328,  2  L.  Ed.  636. 

Under  the  laws  of  the  United  States,  bot- 
tomry bonds  are  only  quasi  negotiable,  and 
except  in  cases  subject  to  the  principle  of 
equitable  estoppel,  the  indorsee  takes  only 
the  payee's  right;  The  Serapis,  37  Fed  436. 
The  act  of  congress  of  July  2D,  1850,  de- 
claring bills  of  sale,  mortgages,  hypotheca- 
tions, and  conveyances  of  vessels  invalid 
against  persons  other  than  the  grantor  or 
mortgagor,  his  heirs  and  devisees,  not  hav- 
ing actual  notice  thereof,  unless  recorded 
in  the  office  of  the  collector  of  the  customs 
where  such  vessel  is  registered  or  enrolled, 
expressly  provided  that  the  lien  by  bottomry 
on  any  vessel,  created  during  her  voyage  by 
a  loan  of  money  or  materials  necessary  to 
repair  or  enable  such  vessel  to  prosecute  a 
voyage,  shall  not  lose  its  priority  or  be  in 
any  way  affected  by  the  provisions  of  that 
act. 

Contracts  of  bottomry  and  respondentia 
are  so  different  in  different  countries  that 
when  disputes  arise  they  are  to  be  decided 
by  the  words  used  in  the  contract  rather 
than  by  principles  of  general  common  ial 
law;  O'Brien  v.  Miller,  168  U.  S.  287,  IS 
Sup.  Ct.  140,  42  L.  Ed.  469. 

Where  a  bottomry  bond  of  an  English  ves- 
sel was  executed  in  New  Orleans  and  the 
charter  provided  she  should  be  governed  by 
American  law,  the  liability  was  according  to 
law  of  United  States;  The  Wyandotte,  136 
Fed.  470;  affirmed  in  The  Wyandotte,  145 
Fed.  321,  75  C.  C.  A.  117. 

BOUGHT  NOTE.  A  written  memorandum 
of  a  sale,  delivered,  by  the  broker  who  effects 
the  sale,  to  the  vendee.  Story,  Ag.  §  28;  11 
Ad  &  E.  5S9 ;  8  M.  &  W.  S34. 

Bought  and  sold  notes  are  made  out.  usu- 
ally at  the  same  time,  the  former  being  de- 
livered to  the  vendee,  the  latter  to  the  ven- 
dor. When  the  broker  has  not  exceeded  his 
authority,  both  parties  are  bound  thereby; 
1  C.  &  P.  3SS;  5  B.  &  C.  486  ;  1  Bell.  Com. 
(4th  ed.)  347,  477.  Where  the  same  broker 
acts  for  both  parties,  the  notes  must  cor- 
respond ;  5  B.  &  C  436 ;  17  Q.  B.  103 ;  Suy- 
dam  v.  Clark,  2  Sandf.  (N.  Y.)  133.  The 
broker,  as  to  this  part  of  the  transaction,  is 
agent  for  both  parties;  2  II.  &  N.  210;  Cod- 
dington  v.  Goddard,  16  Gray  (Mnss.)  442. 
Whether  a  memorandum  in  the  broker's 
books  will  cure  a  disagreement,  see  17  Q.  B. 
115;  1  H.  &  N.  4S4;  but  it  is  said  to  be  the 
better  opinion  that  the  signed  entry  in  the 


BOUGHT  NOTE 


384 


BOUNDARY 


broker's  book  constitutes  the  real  contract 
between  the  parties ;  1  C.  P.  D.  777 ;  9  M.  & 
W.  802 ;  but  it  may  be  shown  that  the  entry 
was  in  excess  of  the  broker's  authority;  4 
L.  R.  Ir.  94 ;  that  the  bought  and  sold  notes 
do  not  constitute  the  contract,  see  17  Q.  B. 
115.  Where  there  is  a  variance  between  the 
bought  and  sold  notes,  and  no  entry  of  the 
transaction,  there  is  no  contract;  17  Q.  B. 
115.  A  bought  note  will  take  the  case  out  of 
the  Statute  of  Frauds,  if  there  is  no  vari- 
ance; 16  C.  B.  N.  S.  11.  See  a  full  discus- 
sion in  Benj.  Sales  §  276;  Tiednian,  Sales 
§  79. 

BOUND  BAILIFF.  A  sheriff's  officer,  who 
serves  writs  and  makes  arrests.  He  is  so 
called  because  bound  to  the  sheriff  for  the 
due  execution  of  his  office.    1  Bla.  Com.  345. 

BOUNDARY.  Any  separation,  natural  or 
artificial,  which  marks  the  confines  or  line 
of  two  contiguous  estates.  3  Toullier,  n. 
171. 

The  term  Is  applied  to  Include  the  objects  placed 
or  existing  at  the  angles  of  the  bounding  lines,  as 
well  as  those  which  extend  along  the  lines  of  sepa- 
ration. 

A  natural  boundary  is  a  natural  object  re- 
maining where  it  was  placed  by  nature. 

A  river  or  stream  is  a  natural  boundary, 
and  the  centre  line  of  the  stream  is  the 
line ;  Jackson  v.  Louw,  12  Johns.  (N.  Y.)  252 ; 
People  v.  Seymour,  6  Cow.  (N.  Y.)  579 ; 
Haye's  Ex'r  v.  Bowman,  1  Rand.  (Va.)  417 ; 
Arnold  v.  Mundy,  6  N.  J.  L.  1,  10  Am.  Dec. 
356;  Dunlap  v.  Stetson,  4  Mas.  349,  Fed. 
Cas.  No.  4,164 ;  State  v.  Town  of  Gilman.ton, 
9  N.  H.  461 ;  1  Tayl.  136 ;  Morgan  v.  Reading, 
3  Smedes  &  M.  (Miss.)  366;  Browne  v.  Ken- 
nedy, 5  Harr.  &  J.  (Md.)  195,  9  Am.N  Dec. 
503 ;  Hammond  v.  Ridgely's  Lessee,  5  Harr. 
&  J.  (Md.)  245,  9  Am.  Dec.  522 ;  MacDonald 
v.  Morrill,  154  Mass.  270,  28  N.  E.  259. 
Where  a  natural  pond  is  the  boundary,  the 
line  is  tiie  natural  shore ;  but  where  an  ar- 
tificial pond,  the  thread  of  the  stream ;  Wa- 
terman v.  Johnson,  13  Pick.  (Mass.)  261 ; 
State  v.  Town  of  Gilmanton,  9  N.  H.  461; 
Mansur  v.  Blake,  62  Me.  38;  Kirkpatrick  v. 
Ice  Co.,  45  Mo.  App.  335;  Gouverneur  v. 
Ice  Co.,  134  N.  Y.  355,  31  N.  E.  865,  18 
L.  R.  A.  695,  30  Am.  St  Rep.  669;  Noyes 
v.  Collins,  92  la.  566,  61  N.  W.  250,  26  L. 
R.  A.  609,  54  Am.  St.  Rep.  571;  where  a 
meandered  lake,  the  middle  thereof;  Olson 
v.  Huntamer,  6  S.  D.  364,  61  i\.  W.  479; 
where  the  seashore,  the  line  is  at  low  water 
mark ;  Doane  v.  Willcutt,  5  Gray  (Mass.)  335, 
66  Am.  Dec.  369;  U.  S.  v.  Pacheco,  2  Wall. 
(U.  S.)  587,  17  L.  Ed.  865 ;  Oakes  v.  De  Lan- 
cey,  133  N.  Y.  227,  30  N.  E.  974,  28  Am.  St. 
Rep.  628.  So  where  one  of  the  great  lakes 
is  the  boundary;  Sloan  v.  Biemiller,  34  Ohio 
St.  492;  or  a  navigable  lake;  see  Village  of 
Wayzata  v.  Ry.  Co.,  50  Minn.  438,  52  N.  W. 
913.  A  grant  of  land  bounded  by  navigable 
«    tide-water,   carries   no   title   to    land    below 


high  water  mark;  De  Lancey  v.  Piepgras,  63 
Hun   169,  17  N.  Y.  Supp.  6S1. 

Where  land  is  bounded  by  the  sea,  and 
the  latter  suddenly  recedes,  leaving  consid- 
erable space  uncovered,  this  new  land,  under 
the  royal  prerogative,  becomes  the  proper- 
ty of  the  king.  But  if  the  dereliction  be 
gradual,  and  by  imperceptible  degrees,  then 
the  land  gained  belongs  to  the  adjacent  own- 
er, for  de  minimis  non  curat  lex;  3  Barn. 
&  C.  91,  and  cases  cited.  Similarly,  where 
a  stream  forming  the  uoundary  between  two 
owners  gradually  changes  its  course,  it  con- 
tinues to  mark  the  line;  but  if  the  change 
be  sudden  and  immediate,  the  boundary  re- 
mains in  the  old  channel ;  2  Bla.  Com.  262 ; 
Collins  v.  State,  3  Tex. .  App.  323,  30  Am. 
Rep.  142;  Niehaus  v.  Shepherd,  26  Ohio  St. 
40;  Holbrook  v.  Moore,  4  Neb.  437;  Missouri 
v.  Kentucky,  11  Wall.  (U.  S.)  395,  20  L.  Ed. 
116. 

An  artificial  boundary  is  one  erected  by 
man. 

The  ownership,  in  case  of  such  boundaries, 
must,  of  course,  turn  mainly  upon  circum- 
stances peculiar  to  each  case;  5  Taunt.  20; 
8  B.  &  C.  259;  generally  extending  to  the 
centre;  Child  v.  Starr,  4  Hill  (N.  Y.)  369; 
Warner  v.  Southworth,  6  Conn.  471.  A  tree 
standing  directly  on  the  line  is  the  joint 
property  of  both  proprietors;  Griffin  v.  Bix- 
by,  12  N.  H.  454,  37  Am.  Dec.  225;  other- 
wise, where  it  only  stands  so  near  that  the 
roots  penetrate ;  1  M.  &  M.  112 ;  2  Rolle  141. 
Land  bounded  on  a  highway  extends  to  the 
centre-line,  though  a  private  street;  New- 
hall  v.  Ireson,  8  Cush.  (Mass.)  595,  54  Am. 
Dec.  790;  Paul  v.  Carver,  26  Pa.  223,  67 
Am.  Dec.  413 ;  Railroad  v.  Bingham,  87  Tenn. 
522,  11  S.  W.  705;  Schneider  v.  Jacob,  86 
Ky.  101,  5  S.  W.  350;  Halloway  v.  South- 
mayd,  64  Hun  632,  18  N.  Y.  Supp.  707;  un- 
less the  description  excludes  the  highway; 
Jackson  v.  Hathaway,  15  Johns.  (N.  Y.)  454, 
8  Am.  Dec.  263;  Town  of  Chatham  v.  Brai- 
nerd,  11  Conn.  60 ;  Codman  v.  Evans,  1  Al- 
len (Mass.)  443;  3  Washb.  R.  P.   *635. 

Boundaries  are  frequently  denoted  by  mon- 
uments fixed  at  the  angles.  In  such  case 
the  connecting  lines  are  always  presumed  to 
be  straight,  unless  described  to  be  otherwise ; 
Allen  v.  Kingsbury,  16  Pick.  (Mass.)  235; 
Baker  v.  Talbott,  6  T.  B.  Monr.  (Ky.)  179; 
Burrows  v.  Vandevier,  3  Ohio,  382;  Nelson 
v.  Hall,  1  McLean  519,  Fed.  Cas.  No.  10,107 ; 
2  Washb.  R.  P.  *632.  A  practical  surveyor 
may  testify  whether,  in  his  opinion,  certain 
marks  on  trees,  piles  of  stones,  or  other 
marks  on  the  ground  were  intended  as  mon- 
uments of  boundaries ;  Northumberland  Coal 
Co.  v.  Clement,  10  W.  N.  C.  (Pa.)  321. 

The  following  is  the  order  of  importance 
in  boundaries:  first,  the  highest  regard  ia 
had  to  natural  boundaries ;  Redmond  v 
Stepp,  100  N.  C.  212,  6  S.  E.  727;  Walrod 
v.  Flanigan,  75  Ia.  365,  39  N.  W.  645;  Morse 


BOUNDARY 


385 


BOUNDARY 


f.  Rollins,  121  Pa.  537,  15  Atl.  645;  Hughes 
v.  Cawthorn,  35  Fed.  248;  Wood  v.  Ramsey, 
71  Md.  9,  17  Atl.  563 ;  McAninch  v.  Freeman, 
69  Tex.  445,  4  S.  W.  369;  second,  to  lines 
actually  run  and  corners  marked  at  the  time 
of  the  grant;  third,  if  the  lines  and  courses 
of  an  adjoining  tract  are  called  for,  the 
lines  will  be  extended,  if  they  are  sufficiently 
established,  and  no  other  departure  from 
the  deed  is  required,  preference  being  given 
to  marked  lines;  fourth,  to  courses  and  dis- 
tances; Yanish  v.  Tarbox,  49  Minn.  268,  51 
N.  W.  1051. 

Courses  and  distances  give  way  to  monu- 
ments, but  they  must  be  of  a  permanent 
character,  and  the  place  where  they  are  at 
the  time  of  the  conveyance  must  be  satisfac- 
torily located;  Brown  v.  Morrill,  91  Mich. 
29,  51  N.  W.  700;  Whitehead  v.  Ragan,  106 
Mo.  231,  17  S.  W.  307.  But  this  is  a  mere 
rule  of  construction;  Green  v.  Horn,  207  N. 
Y.  489,  101  N.  E.  430.  When  a  description 
in  a  deed  by  metes  and  bounds  conflicts  with 
a  description  by  reference  to  plats,  the  for- 
mer governs;  Waldin  v.  Smith,  76  la.  652, 
39  N.  W.  82. 

Parol  evidence  is  often  admissible  to  iden- 
tify and  ascertain  the  locality  of  monuments 
called  for  by  a  description;  Waterman  v. 
Johnson,  13  Pick.  (Mass.)  267;  Frost  v. 
Spaukling,  19  Pick.  (Mass.)  445,  31  Am.  Dec. 
150 ;  and  where  the  description  is  ambiguous, 
the  practical  construction  given  by  the  par- 
ties may  be  shown;  Choate  v.  Burnham,  7 
Pick.  (Mass.)  274.  Commpn  reputation  may 
be  admitted  to  identify  monuments,  especial- 
ly if  of  a  public  or  quasi-public  nature; 
Griffin  v.  Graham,  S  N.  C.  116,  9  Am.  Dec. 
619;  Harmer  v.  Morris,  1  McLean,  45,  Fed. 
Cas.  No.  6,076;  Nelson  v.  Hall,  1  McLean, 
518,  Fed.  Cas.  No.  10,107;  Whitney  v.  Smith, 
10  N.  H.  43;  Cravenson  v.  Meriwither,  2  A. 
K.  Marsh.  (Ky.)  158;  Beaty  v.  Hudson,  9 
Dana  (Ky.)  322;  Smith  v.  Shackleford,  9 
Dana  (Ky.)  465;  Boardman  v.  Reed,  6  Pet. 
(U.  S.)  341,  8  L.  Ed.  415 ;  Harriman  v.  Brown, 
8  Leigh  (Va.)  697;  McCoy's  Lessee  v.  Gal- 
loway, 3  Ohio,  282,  17  Am.  Dec.  591.  On  a 
conflict  of  boundaries  between  deeds  from 
the  same  person,  the  one  that  was  first  ex- 
ecuted controls;  Flynn  v.  Sparks,  11  S-  W. 
206,  10  Ky.  L.  Rep.  960.  Where  there  are 
two  conflicting  monuments,  and  one  corre- 
sponds with  the  courses  and  distances,  that 
one  should  be  taken  and  the  other  rejected 
as  surplusage;  Zeibold  v.  Foster,  118  Mo. 
349,  24  S.  W.  155. 

The  determination  of  the  boundaries  of 
the  states  is  placed  by  the  constitution  in 
the  supreme  court  of  the  United  States; 
Rhode  Island  v.  Massachusetts,  12  Pet.  (U. 
S.)  657,  9  L.  Ed.  1233;  id.,  4  How.  (U.  S.) 
591.  11  L.  Ed.  1116;  Virginia  v.  West  Vir- 
ginia, 11  Wall.  (U.  S.)  39,  20  L.  Ed.  67. 
This  position  was  taken  by  that  court 
against  the  opinion  of  Chief  Justice  Taney, 
who  held  that  a  controversy  between  states, 

Bouv.— 25 


or  between  individuals,  in  relation  to  the 
boundaries  of  a  state,  falls  within  the  prov- 
ince of  the  court  where  the  suit  is  brought 
to  try  a  right  of  property  in  the  soil,  or  any 
other  right  which  is  properly  the  subject 
of  judicial  cognizance  and  decision ;  but  not 
a  contest  for  rights  of  sovereignty  and  juris- 
diction between  states  over  any  particular 
territory.  This  he  held  to  be  a  political 
question;  Rhode  Island  v.  Massachusetts,  12 
Pet.  (U.  S.)  752,  9  L.  Ed.  1233.  All  the  cases 
of  boundary  disputes  between  states  which 
arose  prior  to  the  constitution  and  were 
tried  under  the  articles  of  confederation,  by 
courts  specially  constituted  by  Congress,  are 
collected  in  131  U.  S.  App.  II. 

Long  acquiescence  in  the  assertion  of  a 
particular  boundary  beiween  states  and  the 
exercise  of  sovereignty  within  it,  should  be 
accepted  as  conclusive;  Louisiana  v.  Missis- 
sippi, 202  U.  S.  1,  26  Sup.  Ct.  571,  50  L.  Ed. 
934. 

See  Line. 

As  to  state  boundaries,  when  they  are 
rivers,  see  Avulsion  ;  Riveb. 

BOUNDING    OR    ABUTTING.     See    Abut. 
BOUNTY.    An  additional  benefit  conferred 
upon,    or   a   compensation   paid   to,    a   class 
of  persons. 

It  differs  from  a  reward,  which  Is  usually  applied 
to  a  sum  paid  for  the  performance  of  some  specific 
act  to  some  person  or  persons.  It  may  or  may  not 
be  part  of  a  contract.  Thus,  the  bounty  offered  a 
soldier  would  seem  to  be  part  of  the  consideration 
for  his  services.  The  bounty  paid  to  fishermen  is 
not  a  consideration  for  any  contract,  however.  See 
Fowler  v.  Danvers,  8  Allen  (Mass.)  80;  Eichelberg- 
er  v.  Sifford,  27  Md.  320;  Abbe  v.  Allen,  39  How.  Pr. 
(N.  Y.)  481. 

A  premium  offered  or  given  to  induce 
men  to  enlist  into  the  public  service.  Abbe 
v.  Allen,  39  How.  Pr.  (N.  Y.)  4S1. 

BOURSE.  An  exchange.  Bourses  owe 
their  origin  to  the  Jews.  The  word  originat- 
ed at  Bruges,  where  merchants  gathered  at 
the  house  of  Van  der  Bruse;  or  the  word  is 
from  the  three  purses  (bourses)  carved  on 
the  gable  of  the  house  where  the  meetings 
were  held.  Stock  Exchange  by  Van  Ant- 
werp. 

B0  U  WE  RYE.     A  farm. 

B0 UW MASTER.     A  farmer. 

B0 V ATA  TERR^.  As  much  land  as  one 
ox  can  cultivate.  Said  by  some  to  be  thir- 
teen, by  others  eighteen,  acres  in  extent. 
Skene;  Spelman,  Gloss.;  Co.  Litt  5  a. 

Bovate  is  used  in  expressing  a  quantity 
of  land  and  meaning  one-eighth  of  a  carucate, 
i.  e.  the  amount  of  land  which  can  he  plough- 
ed by  one  ox;  generally  about  fifteen  acres. 
2  Holdsw.  Hist.  E.  L.  57.  See  Cabucate. 
Both  terms  seem  to  be  French,  and  not  part 
of  the  official  Latin.  Maitl.  Domesday  and 
Beyond  o95. 

BOYCOTT.  An  organized  effort  to  ex- 
clude a  person  from  business  relations  with 


BOYCOTT 


38G 


BOYCOTT 


others  by  persuasion,  intimidation  and  oth- 
er acts  which  tend  to  violence,  and  thereby 
to  coerce  him,  through  fear  of  resulting  in- 
jury, to  submit  to  dictation  in  the  manage- 
ment of  his  affairs.  Casey  v.  Typographical 
Union,  45  Fed.  135,  12  L.  R.  A.  193,  citing 
State  v.  Glidden,  55  Conn.  46,  8  Atl.  890, 
3  Am.  St.  Rep.  23. 

In  State  v.  Glidden,  55  Conn.  46,  8  Atl. 
890,  3  Am.  St.  Rep.  23,  it  was  held  that  to 
threaten  or  intimidate  a  person  to  compel 
him  against  his  will  to  do  or  abstain  from 
doing  any  act  which  he  has  a  legal  right  to 
do,  is  an  unlawful  conspiracy.  See  also  15 
Q.  B.  D.  476;  23  id.  59S;  [1S92]  A.  C.  25; 
[1893]  1  Q.  B.  715;  Toledo  Ry.  Co.  v.  Penn. 
Co.,  54  Fed.  730,  19  L  E.  A.  387;  Carew  v. 
Rutherford,  106  Mass.  1,  8  Am.  Rep.  287; 
Sherry  v.  Perkins,  147  Mass.  212,  17  N.  E. 
307,  9  Am.  St.  Rep.  6S9 ;  Lucke  v.  Clothing 
Cutters,  77  Md.  396,  26  Atl.  505,  19  L.  R.  A. 
408,  39  Am.  St.  Rep.  421;  Crump's  Case,  84 
Va.  940,  6  S.  E.  620,  10  Am.  St.  Rep.  895; 
Hopkins  v.  Stave  Co.,  83  Fed.  912,  28  C.  C. 
A.  99.  The  word  itself  is  held  in  Casey  v. 
Typographical  Union,  45  Fed.  135,  12  L.  R. 
A.  193,  to  be  a  threat.  Intimidation  and 
coercion  are  its  essential  elements;  Gray  v. 
Council,  91  Minn.  171,  97  N.  W.  663,  63  L. 
R.  A.  753,  103  Am.  St.  Rep.  477,  1  Ann.  Cas. 
172. 

On  the  other  hand  it  is  held  that  a  boy- 
cott is  not  unlawful,  unless  attended  by 
some  act  in  itself  illegal;  Bonn  Mfg.  Co.  v. 
Hollis,  54  Minn.  223,  55  N.  W.  1119,  21  L. 
R.  A.  337,  40  Am.  St.  Rep.  319;  Longshore 
Printing  &  Pub.  Co.  v.  Howell,  26  Or.  527, 
38  Pac.  547,  28  L.  R.  A.  464,  46  Am.  St.  Rep. 
640;  that  an  act  lawful  in  itself  is  not 
converted  by  a  bad  motive  into  an  unlawful 
or  tortious  act ;  Allen  v.  Flood,  [1898]  A.  C.  1. 

A  product  may  be  the  subject  of  a  boy- 
cott; Purvis  v.  Local  No.  500,  United  Broth- 
erhood of  Carpenters  &  Joiners,  214  Pa.  348, 
63  AtL  585,  12  L.  R.  A.  (N.  S.)  642,  112  Am. 
St.  Rep.  757,  6  Ann.  Cas.  275;  Purington  v. 
Hinchliff,  219  111.  159,  76  N.  E.  47,  2  L.  R.  A. 
(N.  S.)  824,  109  Am.  St.  Rep.  322;  Loewe  v. 
Lawlor,  208  U.  S.  274,  28  Sup.  Ct.  301,  52  L. 
Ed.  488,  13  Ann.  Cas.  815;  and  combinations 
for  this  purpose  both  on  the  part  of  dealers 
to  compel  one  in  the  same  business  to  join 
their  association  and  of  labor  unions  to  force 
an  employer  to  submit  to  their  terms  are  usu- 
ally in  the  United  States  held  illegal;  Pur- 
ington v.  Hinchliff,  219  111.  159,  76  N.  E.  47, 
2  L.  R.  A.  (N.  S.)  824.  109  Am.  St.  Rep.  322; 
Purvis  v.  Local  No.  500.  United  Brotherhood 
of  Carpenters  &  Joiners,  214  Pa.  348,  63 
Atl.  585,  12  L.  R.  A.  (N.  S.)  642,  112  Am.  St. 
Rep.  757,  6  Ann.  Cas.  275,  where  it  was  held 
"a  man's  business  is  his  property,  and  to  put 
one  in  actual  fear  of  its  loss  or  of  injury  to 
his  business  is  often  no  less  potent  in  co- 
ercing than  fear  of  violence  to  his  person," 
citing  Plant  v.  Woods,  176  Mass.  492,  57  N. 


E.   1011,  51  L.   R.  A.  339.  79  Am.    St.   Rep. 
330. 

In  Allen  v.  Flood,  [1898]  A.  C.  1,  it  is  said 
that  workmen  have  an  equal  right  of  proper- 
ty in  their  labor,  to  dispose  of  it  as  they 
please,  limited  only  by  the  equal  right  of  the 
employer  to  do  the  same;  that  as  each  work- 
man and  all  of  them  had  a  right  to  refuse  to 
work  if  his  demands  were  not  acceded  to, 
it  could  be  in  no  sense  coercion  to  put  the 
employer  to  an  election;  and  because  the 
incidents  of  the  situation  made  it  to  his 
interests  to  accede  to  the  demand  made  so 
that  (unless  he  was  willing  to  assume  the 
resulting  loss)  he  had  no  real  option  in  the 
matter,  his  yielding  was  no  proof  of  intimi- 
dation. It  was  further  said  :  "In  every  such 
case  the  controlling  inquiry  is  one  of  means, 
and  these  can  never  be  unlawful,  if  what 
was  in  fact  done  marks  an  exercise  of  a 
right,  or  a  declaration  of  a  purpose  to  do 
that  which  is  not  of  itself  unlawful." 

In  Quinn  v.  Leathern,  [1901]  A.  C.  495, 
Allen  v.  Flood  is  distinguished,  and  it  is 
held  that  a  conspiracy  to  injure,  if  there  be 
damage,  gives  rise  to  civil  liability;  that  an 
oppressive  combination  differs  widely  from 
an  invasion  of  civil  rights  by  a  single  person  ; 
that  if  wrongful  interference  with  a  man's 
liberty  of  action  is  intended  to  injure,  and 
in  fact  damages  a  third  person,  such  third 
person  has  a  remedy  by  an  action;  and  that 
annoyance  and  coercion  by  many  may  be 
actionable,  where  like  conduct  on  the  part 
of  one  person  would  not  be  so.  This  case 
approves  Temperton  v.  Russel,  [1S93]  1  Q.  B. 
715.  In  Loewe  v.  Lawlor,  20S  U.  S.  274,  28 
Sup.  Ct.  301,  52  L.  Ed.  488,  13  Ann.  Cas.  815, 
a  combination  to  boycott  a  manufactured 
product  was  held  to  fall  within  the  class 
of  restraints  of  trade  prohibited  by  the  fed- 
eral anti-trust  act. 

In  Gompers  v.  Stove  &  Range  Co.,  221  U. 
S.  437,  31  Sup.  Ct.  492,  55  L.  Ed.  797,  34  L. 
R.  A.  (N.  S.)  874,  it  is  said :  "Courts  differ 
as  to  what  constitutes  a  boycott  that  may  be 
enjoined.  All  hold  that  there  must  be  a  con- 
spiracy causing  irreparable  damage  to  the 
business  or  property  of  the  complainant. 
Some  hold  that  a  boycott  against  the  com- 
plainant by  a  combination  of  persons  not  im- 
mediately connected  with  him  in  business 
may  be  restrained.  Others  hold  that  the  sec- 
ondary boycott  can  be  enjoined  where  the 
conspiracy  extends  not  only  to  injuring  the 
complainant,  but  secondarily  coerces  or  at- 
tempts to  coerce  his  customers  to  refrain 
from  dealing  with  him,  by  threats  that  un- 
less they  do,  they  themselves  will  be  boy- 
cotted. Others  hold  that  no  boycott  can  be 
enjoined,  unless  there  are  acts  of  physical 
violence,  or  intimidation  caused  by  threats 
of  physical  violence." 

The  publication  of  letters,  circulars  and 
printed  matter  may  constitute  a  means 
whereby  a  boycott  is  unlawfully  continued, 
and  their  use  for  such  purpose  may  amount 


BOYCOTT 


387 


BOYCOTT 


to  a  violation  of  the  injunction ;  Reynolds 
v.  Davis,  198  Mass.  300,  84  N.  E.  457,  17  L. 
R.  A.  (N.  S.)  162;  Sherry  v.  Perkins,  147 
Mass.  212,  17  N.  E.  307,  9  Am.  St.  Rep.  689 ; 
Brown  v.  Pharmacy  Co.,  115  Ga.  452,  41  S. 
E.  553,  57  L.  R.  A.  547,  90  Am.  St.  Rep.  126 ; 
Lohse  Patent  Door  Co.  v.  Fuelle,  215  Mo. 
421,  114  S.  W.  997,  22  L.  R.  A.  (N.  S.)  607, 
128  Am.  St.  Rep.  492;  Thomas  v.  R.  Co.,  62 
Fed.  803;  Continental  Ins.  Co.  v.  Board,  67 
Fed.  310;  Beck  v.  Protective  Union,  118 
Mich.  527,  77  N.  W.  13,  42  L.  R.  A.  407,  74 
Am.  St.  Rep.  421;  Burr  v.  Trades  Council, 
53  N.  J.  Eq.  102,  30  Atl.  8S1.  See,  also, 
Ludwig  v.  West  Tel.  Co.,  216  U.  S.  156,  30 
Sup.  Ct.  2S0,  54  L.  Ed.  423;  Bitterman  v. 
R.  Co.,  207  U.  S.  200,  28  Sup.  Ct.  91,  52  L. 
Ed.  171;  Scully  v.  Bird,  209  U.  S.  489,  28 
Sup.  Ct.  597,  52  L.  Ed.  899.  (These  cases 
are  cited  in  the  opinion.  Gompers  v.  Stove 
&  Range  Co.,  221  U.  S.  438,  31  Sup.  Ct.  492, 
55  L.  Ed.  797,  34  L.  R,  A.  [N.  S.]  874.) 

One  who  is  under  no  contract  relation  to 
another  may  without  question  withdraw 
from  business  relations  with  that  other. 
This  includes  the  right  to  cease  to  deal  not 
only  with  the  individual  who  may  be  pur- 
suing a  course  deemed  by  him  detrimental, 
but  with  all  who,  by  their  patronage,  aid  in 
the  maintenance  of  the  objectionable  poli- 
cies; J.  F.  Parkinson  Co.  v.  Building  Trades 
Council.  154  Cal.  581,  98  Pac.  1027,  21  L. 
R.  A.  (N.  S.)  550,  16  Ann.  Cas.  1165,  where 
it  was  held  that  if  the  workmen  violated 
no  right  of  the  company  by  refusing  to 
work  for  it,  they  violated  none  by  refusing 
to  work  for  contractors  who  used  material 
bought  of  it  To  the  same  effect,  [1892]  A. 
C.  25;  National  Protective  Ass'n  of  Steam 
Fitters  &  Helpers  v.  Cumming,  170  N.  Y. 
315,  63  N.  E.  369,  58  L.  R.  A.  135,  88  Am. 
St.  Rep.  648;  Clemmitt  v.  Watson,  14  Ind. 
App.  38,  42  N.  E.  367;  Cote  v.  Murphy,  159 
Pa.  420,  28  Atl.  190,  23  L.  R.  A.  135,  39  Am. 
St.  Rep.  6S6 ;  Macauley  v.  Tierney,  19  R.  I. 
255,  33  Atl.  1,  37  L.  R.  A.  455,  61  Am.  St. 
Rep.  770;  Bohn  Mfg.  Co.  v.  Hollis,  54  Minn. 
223,  55  N.  W.  1119,  21  L.  R.  A.  337,  40  Am. 
St.  Rep.  319;  Payne  v.  R.  Co.,  13  Lea  (Tenn.) 
507,  49  Am.  Rep.  666;  Hey  wood  v.  Tillson, 
75  Me.  225,  46  Am.  Rep.  373;  Raycroft  v. 
Tayntor,  68  Yt.  219,  35  Atl.  53,  33  L.  R.  A. 
225,  54  Am.  St.  Rep.  S82;  State  v.  Van  Pelt, 
136  N.  C.  633,  49  S.  E.  177,  68  L.  R.  A.  760, 
1  Ann.  Cas.  495;  Lindsay  &  Co.  v.  Federa- 
tion of  Labor,  37  Mont.  264,  96  Pac.  127,  18 
L.  R.  A.  (N-  S.)  707,  127  Am.  St.  Rep.  722; 
[1898]  A.  C.  128. 

On  the  other  hand,  it  is  held  that  it  is 
unlawful,  in  an  effort  to  compel  A  to  yield 
a  legitimate  benefit  to  B,  for  B  to  demand 
that  C  withdraw  his  patronage  from  A  un- 
der penalty  of  losing  B's  services  or  patron- 
age to  which  he  has  no  contract  right; 
Thomas  v.  Ry.  Co.,  62  Fed.  803;  id.,  4  Inters. 
Com.  Rep.  7S8;  Hopkins  v.  Stave  Co.,  83 
Fed.  912,  28  C.  C-  A.  99,  49  U.  S.  App.  709 ; 


Vegelahn  v.  Guntner,  167  Mass.  92,  44 
1077,  35  L.  R.  A.  TL'L'.  57  Am.  St  Rep 
Beck  v.  Protective  Union,  118  Mich.  4fl 
N.  W.   13,  42  L.  R,   A.  407,  74  Am.   St 
421;    Gray   v.   Building  Trades   Coum i 
Minn.  171,  97  N.  W.  663,  63  L.  R.  A.  75i 
Am.  St.  Rep.  477,  1  Ann.  Cas.  172;  Barr  v. 
Trades  Council,  53  N.  J.  Eq.  101,  30  Atl.  881 ; 
Lucke  v.  Clothing  Cutters  &  Trimmers'  As- 
sembly, 77  Md.  396,  26  Atl.  505,  19  L.  R.  A. 
408,  39  Am.  St.  Rep.  421;  Jackson  v.  Stan- 
field,   137   Ind.   592,  36  N.   E.  345,  37  N.    E. 
14,  23   L.  R.  A.   588;   Crump's  Case,  84    Va. 
927,  6  S.  E.  620,  10  Am.  St  Rep.  895;  [1901] 
A.  C.  495. 

The  term  seems  to  have  been  derived  from  an 
Incident  that  occurred  in  Ireland.  Captain  Boycott, 
an  Englishman,  who  was  agent  of  Lord  Earne  and 
a  farmer  of  Lough  Mask,  served  notices  upon  the 
lord's  tenants,  and  they  in  turn,  with  the  sur- 
rounding population,  resolved  to  have  nothing  to  do 
with  him,  and,  as  far  as  they  could  prevent  it,  not 
to  allow  any  one  else  to  have.  His  life  appeared 
to  be  in  danger,  and  he  had  to  claim  police  protec- 
tion. His  servants  fled  from  him,  and  the  awful 
sentence  of  excommunication  could  hardly  have 
rendered  him  more  helplessly  alone  for  a  time.  No 
one  would  work  for  him,  and  no  one  would  supply 
him  with  food.  He  and  his  wife  were  compelled  to 
work  in  their  own  fields  with  the  shadows  of  armed 
constabulary  ever  at  their  heels;  Justin  MacCar- 
thy's  "England  under  Gladstone."  See  State  v. 
Glidden,  55  Conn.  46,  8  Atl.  890,  3  Am.  St  Rep.  23; 
18  L.  R.  Ir.  430. 

Combinations,  in  the  nature  of  boycotts, 
which  have  been  held  to  be  unlawful  conspir- 
acies are:  To  compel  a  member  of  a  labor 
union  to  pay  a  fine  assessed  against  him  for 
working  in  a  mill  with  steam  machinery  by 
preventing  his  obtaining  employment;  5  Cox, 
C.  C.  162;  to  obstruct  an  employer  in  the  con- 
duct of  his  business;  People  v.  Petheram,  64 
Mich.  252,  31  N.  W.  1S8;  10  Cox,  C.  C.  592; 
to  coerce  an  employer  to  conduct  his  business 
with  reference  to  apprentices  and  delinquent 
members  according  to  the  demand  of  the 
union,  by  injuring  his  business  through  no- 
tices to  customers  and  material  men  that 
dealings  with  him  would  be  followed  by. sim- 
ilar measures  against  them;  Moores  &  Co. 
v.  Bricklayers'  Union,  23  Wkly.  L.  B.  (Ohio) 
48;  to  prevent  the  employment  of  a  granite 
cutter  declared  by  a  labor  union  to  be  a 
"scab";  State  v.  Stewart.  59  Vt  273,  9  Atl. 
559,  59  Am.  Rep.  710;  State  v.  Donaldson, 
32  N.  J.  L.  151,  90  Am.  Dec.  649;  to  compel 
an  employer  to  discharge  non-union  men; 
State  v.  Glidden,  55  Conn.  46.  S  Atl.  890,  :: 
Am.  St.  Rep.  23;  People  v.  Wilzig,  4  N.  Y. 
Crim.  Rep.  403;  People  v.  Kostka,  id.  129; 
People  v.  Smith,  5  N.  Y.  Crim.  Rep.  509;  t<> 
induce  employes  to  leave  their  employment 
and  prevent  others  from  entering  it;  Walker 
v.  Cronin,  107  Mass.  555;  to  induce  workmen 
to  quit  in  a  body  to  enforce  the  demands  of 
a  labor  union ;  Old  Dominion  S.  S.  Co.  v. 
McKenna,  30  Fed.  4S;  to  parade  in  front  of 
a  factory  with  banners  to  induce  workmen 
to  keep  away;  Sherry  v.  Perkins,  147  Mass. 
212,  17  N.  E.  307,  9  Am.  St  Rep.  6S9.     Com- 


BOYCOTT 


388 


BOYCOTT 


binations  to  prevent  the  sale  of  a  manufac- 
tured product  except  upon  conditions  with 
which  the  manufacturer  does  not  wish  to 
comply;  Purington  v.  Hinchliff,  219  111.  159, 
76  N.  E.  47,  2  L  R.  A.  (N.  S.)  824,  109  Am. 
St.  Rep.  322;  or  to  force  a  business  man  to 
conform  his  prices  to  those  of  an  associa- 
tion of  others  in  the  same  business;  Dore- 
mus  v.  Hennessy,  176  111.  60S,  52  N.  E.  924, 
54  N.  E.  524,  43  L.  R.  A.  797,  802,  68  Am. 
St.  Rep.  203;  or  to  join  are  association  of 
other  men  in  the  same  business;  Boutwell 
v.  Marr,  71  Vt  1,  42  Atl.  607,  43  L.  R.  A.  803, 
76  Am.  St.  Rep.  746;  Martell  v.  White,  185 
Mass.  255,  69  N.  E.  10S5,  64  L.  R.  A.  260,  102 
Am.  St.  Rep.  341;  W.  W.  Montague  &  Co. 
v.  Lowry,  193  U.  S.  38,  24  Sup.  Ct.  307, 
48  L.  Ed.  608;  or  to  unionize  his  place  of 
business;  Purvis  v.  United  Brotherhood  of 
Carpenters  &  Joiners,  214  Pa.  348,  63  Atl. 
585,  12  L.  R.  A.  (N.  S.)  642,  112  Am.  St.  Rep. 
757,  6  Ann.  Cas.  275;  Loewe  v.  Lawlor,  20S 
V.  S.  274,  28  Sup.  Ct.  301,  52  L.  Ed.  488, 
13  Ann.  Cas.  815;  are  illegal  means  of  en- 
forcing a  boycott;  and  so  it  is  held  are  any 
combinations  to  secure  action  which  essential- 
ly obstructs  the  free  flow  of  commerce  be- 
tween the  states  or  restricts,  in  that  regard, 
the  liberty  of  a  trader  to  engage  in  business; 
Loewe  v.  Lawlor,  208  U.  S.  274,  28  Sup.  Ct. 
301,  52  L.  Ed.  488,  13  Ann.  Cas.  815;  an 
agreement  by  shipowners,  in  order  to  secure 
a  carrying  trade  exclusively  for  themselves, 
that  agents  of  members  should  be  prohibited 
upon  pain  of  dismissal  from  acting  in  the  in- 
terests of  competing  shipowners ;  [1892]  A.  C. 
25;  a  combination  of  retailers  binding  the 
members  to  refuse  to  purchase  of  wholesal- 
ers who  should  sell  to  non-members  of  the 
combination;  Bohn  Mfg.  Co.  v.  Hollis,  54 
Minn.  223,  55  N.  W.  1119,  21  L.  R.  A.  337,  40 
Am.  St.  Rep.  319;  an  agreement  of  contrac- 
tors to  withdraw  their  patronage  from  whole- 
salers selling  to  a  contractor  who  has  conced- 
ed to  the  demands  of  his  employes  for  an 
eight  hour  day;  Cote  v.  Murphy,  159  Pa. 
420,  28  Atl.  190,  23  L.  R.  A.  135,  39  Am.  St. 
Rep.  686;  a  threat  by  a  railroad  company  to 
discharge  any  employe  who  should  deal  with 
the  plaintiff;  Payne  v.  R.  Co.,  13  Lea  (Tenn.) 
507,  49  Am.  Rep.  666;  a  threat  by  an  employ- 
er that  he  would  discharge  any  laborer  who 
rented  plaintiff's  house ;  Hey  wood  v.  Tillson, 
75  Me.  225,  46  Am.  Rep.  373. 

To  gather  around  a  place  of  business  and 
follow  employes  to  and  from  work,  and  to 
collect  about  their  boarding-places  with 
threats,  intimidation,  and  ridicule;  Murdock 
v.  Walker,  152  Pa.  595,  25  Atl.  492,  34  Am. 
St.  Rep.  678;  Barnes  &  Co.  v.  Typographical 
Union,  232  111.  424,  83  N.  E.  940,  14  L.  R.  A. 
(N.  S.)  1018,  13  Ann.  Cas.  54;  or  to  con- 
gregate around  the  entrance  to  a  place  of 
business  for  the  purpose  of  preventing  the 
public  from  entering;  Jersey  City  Printing 
Co.  v.  Cassidy,  63  N.  J.  Eq.  759,  53  AtL  230 ; 


Jensen  v.  Cooks'  &  Waiters'  Union,  39  Wash. 
531,  81  Pac.  1069,  4  L.  R.  A.  (N.  S.)  302;  such 
besetting  of  works  is  called  piclceting  (q.  v.). 
Boycotts  may  be  restrained  by  injunction; 
Friedman  v.  Israel,  26  Fed.  803;  Casey  v. 
Typographical  Union,  45  Fed.  135,  12  L.  R. 
A.  193 ;  a  violation  of  which  is  punishable 
as  a  contempt;  U.  S.  v.  Debs,  64  Fed.  724; 
In  re  Debs,  158  U.  S.  564,  15  Sup.  Ct.  900, 
39  L.  Ed.  1092;  when  they  are  found  to  be 
unlawful  conspiracies;  Gray  v.  Building 
Trades  Council,  91  Minn.  171,  97  N.  W.  663, 
63  L.  R.  A.  753,  103  Am.  St.  Rep.  477,  1  Ann. 
Cas.  172;  Barr  v.  Trades  Council,  53  N.  J. 
Eq.  101,  30  Atl.  881;  and  the  fact  that  they 
are  such  will  not  prevent  such  remedy  where 
they  threaten  irreparable  injury  to  persons 
or  property;  Cranford  v.  Tyrrell,  128  N.  Y. 
341,  28  N.  E.  514.  That  the  ultimate  pur- 
pose of  the  combination  is  to  secure  benefits 
to  its  members  rather  than  to  inflict  dam- 
age on  a  boycotted  Dusiness  is  held  to  be 
no  justification ;  Erdman  v.  Mitchell,  207  Pa. 
79,  56  Atl.  327,  63  L.  R.  A.  534,  99  Am.  St. 
Rep.  783.  The  court  cannot  look  beyond 
the  Immediate  injury  to  the  remote  result; 
Purvis  v.  United  Brotherhood,  214  Pa.  348, 
63  Atl.  585,  12  L.  R.  A.  (N.  S.)  642,  112  Am. 
St.  Rep.  757,  6  Ann.  Cas.  275.  In  their  ef- 
forts to  better  their  condition  they  may  in- 
flict more  or  less  damage  upon  others.  But 
these  results  should  be  incidental  damage 
and  inconvenience  consequent  on  the  opera- 
tion of  general  rules,  lawful  in  themselves, 
rather  than  those  which  follow  a  specific 
intent  and  immediate  purpose  of  injury  to 
others  in  order  that  good  may  ultimately 
come  to  themselves.  The  doctrine  that  the 
end  justifies  the  means  has  no  place  in  a 
condition  of  society  where  law  prevails ;  Cur- 
ran  v.  Galen,  152  N.  Y.  33,  46  N.  E.  297,  37 
L.  R.  A.  802,  57  Am.  St.  Rep.  496;  Plant 
v.  Woods,  176  Mass.  492,  57  N.  E.  1011,  51 
L.  R.  A.  339,  79  Am.  St.  Rep.  30,  where  it 
was  said  that  the  right  to  be  free  from 
molestation  must  be  considered  as  well  as 
that  of  bettering  a  class  condition,  per  O.  W. 
Holmes,  Jr.,  C.  J. 

On  the  other  hand,  where  the  publication 
of  a  libelous  circular  for  the  purpose  of 
creating  a  boycott  was  sought  to  be  en- 
joined, it  was  held  that  the  court  cannot,  by 
injunction  interfere  with  the  constitutional 
right  freely  to  speak  or  write ;  Marx  v.  Haas 
Jeans  Clothing  Co.  v.  Watson,  168  Mo.  133, 
67  S.  W.  391,  56  L.  R.  A.  951,  90  Am.  St 
Rep.  440;  and  for  the  same  offense,  an  in- 
junction was  refused  on  the  ground  that 
the  plaintiffs  had  no  property  right  in  the 
trade  of  any  particular  person.  In  several 
states  there  are  statutes  on  the  subject,  some 
of  them  merely  declaratory  of  the  common 
law,  and  others,  more  drastic,  which  extend 
the  doctrine  to  new  acts  and  circumstances. 
See,  generally,  Moses,  Strikes;  Stimson's 
Handbook    of    Labor    Law    in    the    U.    S. ; 


BOYCOTT 


389 


BREACH 


Combination;  Labor  Union;  Blacklisting; 
Conspibacy;  Malice;  Motive;  Restraint  of 
Trade;  Strike. 

BOZERO.  In  Spanish  Law.  An  advocate; 
one  who  pleads  the  causes  of  others,  either 
suing  or  defending.  Las  Partidas,  part.  3, 
tit.  v.  1.  1-6. 

Called  also  abogado.  Amongst  other  classes  of 
persons  excluded  from  this  office  are  minors  under 
seventeen,  the  deaf,  the  dumb,  friars,  women,  and 
Infamous  persons.    White,  New  Rec.  274. 

BRANCH.  A  portion  of  the  descendants 
of  a  person,  who  trace  their  descent  to  some 
common  ancestor,  who  is  himself  a  descend- 
ant of  such  person. 

The  whole  of  a  genealogy  is  often  called  the  gen- 
ealogical tree;  and  sometimes  it  is  made  to  take 
the  form  of  a  tree,  which  is  in  the  first  place  divid- 
ed into  as  many  branches  as  there  are  children,  aft- 
erwards into  as  many  branches  as  there  are  grand- 
children, then  great-grandchildren,  etc.  If,  for  ex- 
ample, it  be  desired  to  form  the  genealogical  tree  of 
Peter's  family,  Peter  will  be  made  the  trunk  of  the 
tree ;  if  he  has  had  two  children,  John  and  James, 
their  names  will  be  written  on  the  first  two  branch- 
es, which  will  themselves  shoot  out  into  as  many 
smaller  branches  as  John  and  James  have  children  ; 
from  these  others  proceed,  till  the  whole  family  is 
represented  on  the  tree.  Thus  the  origin,  the  ap- 
plication, and  the  use  of  the  word  branch  in  gene- 
alogy will  be  at  once  perceived. 

BRANDING.  An  ancient  mode  of  punish- 
ment by  inflicting  a  mark  on  an  offender 
with  a  hot  iron.  It  is  generally  disused  in 
civil  law,  but  is  a  recognized  punishment  for 
some  military  offences. 

It  is  also  used  with  reference  to  the  mark- 
ing of  cattle  for  the  purpose  of  identification. 
See  Animal. 

BRANKS.  An  instrument  of  punishment 
formerly  made  use  of  in  some  parts  of  Eng- 
land for  the  correction  of  scolds,  which  it 
was  said  to  do  so  effectually  and  so  very 
safely  that  it  was  looked  upon  by  Dr.  Plotts, 
in  his  History  of  Staffordshire,  p.  3S9,  "as 
much  to  be  preferred  to  the  ducking-stool, 
which  not  only  endangers  the  health  of  the 
party,  but  also  gives  the  tongue  liberty  'twixt 
every  dip,  to  neither  of  which  is  this  liable ; 
it  brings  such  a  bridle  for  the  tongue  as  not 
only  quite  deprives  them  of  speech,  but  brings 
shame  for  the  transgression  and  humiliation 
thereupon  before  it  is  taken  off." 

BRASS  KNUCKLES.  A  weapon  worn  on 
the  hand  for  the  purposes  of  offence  or  de- 
fence, so  made  that  in  hitting  with  the  fist 
considerable  damage  is  inflicted. 

It  is  called  "brass  knuckles"  because  it 
was  originally  made  of  brass.  The  term  is 
now  used  as  the  name  of  the  weapon  with- 
out reference  to  the  metal  of  which  it  is 
made ;   Patterson  v.  State,  3  Lea  (Tenn.)  575. 

BREACH.  In  Contracts.  The  violation  of 
an  obligation,  engagement,  or  duty. 

A  continuing  breach  is  one  whore  the  con- 
dition of  things  constituting  a  breach  con- 
tinues during  a  period  of  time,  or  where  the 
acts  constituting  a  breach  are   repeated  at 


brief  intervals;    F.   Moore   242;    Holt 
2  Ld.  Raym.  1125. 

The  right  to  rescind  a  contract  for  non- 
performance is  a  remedy  as  old  as  the  law 
of  contract  itself.  When  the  contract  is  en- 
tire— indivisible — the  right  is  unquestioned. 
The  undertakings  on  the  one  side  and  on 
the  other  are  dependent,  and  performance 
by  the  one  party  cannot  be  enforced  by  the 
other  without  performance  or  a  lender  of 
performance  on  his  own  part ;  Norrington 
v.  Wright,  115  TJ.  S.  188,  6  Sup.  Ct  ] 
L.  Ed.  366.  In  that  case  plaintiff  agreed 
to  ship  5,000  tons  of  rails  at  the  rate  of  about 
1,000  tons  a  month  beginning  in  February, 
aud  the  whole  contract  to  be  shipped  before 
the  first  of  August  of  the  same  year.  Only 
400  tons  were  shipped  in  February  and  885 
in  March,  and  it  was  held  that  the  failure 
to  fulfill  the  contract  in  respect  to  these  first 
two  installments  justified  the  rescission  of  the 
whole  contract,  provided  that  the  defendants 
distinctly  and  seasonably  asserted  their  right 
to  rescind ;  and  the  fact  that  the  defendants 
had  accepted  the  shipment  of  400  tons  in 
February  was  no  waiver  of  this  right,  be- 
cause it  took  place  without  notice  or  means 
of  knowledge  that  the  stipulated  quantity 
had  not  been  shipped  in  February.  An  Eng- 
lish case  in  1S50  allowed  rescission  on  the 
ground  of  insufficient  delivery  of  the  first 
installment  of  an  iron  contract;  5  H.  &  N. 
19.  Where  on  a  year's  contract  for  furnish- 
ing coke,  payment  to  be  made  on  the  twen- 
tieth of  each  month  for  the  deliveries  of  the 
preceding  month,  it  was  held  that  there 
might  be  a  breach  of  the  contract  on  the 
twenty-third  of  the  month,  if  the  sum  were 
still  unpaid;  Hull  Coal  &  Coke  Co.  v.  Coal 
&  Coke  Co.,  113  Fed.  256,  51  C.  C.  A.  213. 
The  supreme  court  of  Michigan  has  decided, 
in  a  contract  to  deliver  wood  in  installments, 
that  a  refusal  to  pay  for  the  third  install- 
ment was  not  such  a  breach  as  to  excuse  the 
defendant  from  making  further  deliveries,  on 
the  ground  that  the  defendant's  refusal  to 
pay  did  not  evince  an  intention  no  longer  to 
be  bound  by  the  contract;  West  v.  Bechtel, 
125  Mich.  144,  84  N.  W.  69,  51  L.  R.  A.  79L 
This  case  is  distinguished  from  Norrington 
v.  Wright,  supra,  in  that  the  latter  was  a 
breach  for  non-delivery  and  the  Michigan 
case  was  a  breach  for  non-payment. 

In  Iowa  it  was  held  that  a  failure  to  pay 
for  a  shipment  of  coal  within  thirty  days, 
as  agreed  in  a  contract  for  the  shipment  of 
a  certain  amount  in  quantities  as  on 
does  not  go  to  the  whole  consideration  of  the 
contract,    and   does   not   therefore   give    the 

right   to  rescind:    Osg 1   v.    Bauder,   75   la. 

550,  39  N.  W.  887,  1  L.  R.  A.  655;  contra, 
Ross-Meehan  Foundry  Co.  v.  Wheel  Co.,  113 
Tenn.  370,  83  S.  W.  167.  6S  L.  R.  A.  829,  3 
Ann.  Cas.  898 ;  and  in  New  Jersey  a  failure 
to  deliver  the  first  installment  of  goods  on 
a  contract  for  delivery  in  installments  does 


BREACH 


390 


BREACH 


not  justify  a  rescission  by-  the  buyer ;  Gerli 
v.  Silk  Mfg.  Co.,  57  N.  J.  L.  432,  31  Atl.  401, 
30  L.  R.  A.  61,  51  Am.  St.  Rep.  611.  Acts 
indicating  an  intention  to  abandon  a  con- 
tract justify  the  aggrieved  party  in  rescind- 
ing, but  mere  breach  in  performance,  with- 
out repudiation,  cannot  warrant  rescission; 
9  C.  P.  208;  [1900]  2  Ch.  298.  Where  one 
party  to  a  contract  is  guilty  of  a  breach,  the 
other  party  is  at  liberty  to  treat  the  contract 
as  broken  and  desist  from  any  further  ef- 
fort on  his  part  to  perform.  Such  an  aban- 
donment is  not  technically  a  rescission  of  the 
contract,  but  merely  an  acceptance  of  the 
situation  which  the  wrongdoing  of  the  other 
party  has  brought  about;  Anvil  Min.  Co.  v. 
Humble,  153  U.  S.  540,  14  Sup.  Ct  876,  38  L. 
Ed.  814;  Pierce  v.  R.  Co.,  173  U.  S.  1,  19 
Sup.  Ct  335,  43  L.  Ed.  591 ;  Roehm  v.  Horst, 
178  U.  S.  14,  20  Sup.  Ct.  7S0,  44  L.  Ed.  953. 
It  has  been  held  that  when  a  contract  is 
repudiated  by  one  party,  and  the  other  party 
has  not  elected  to  treat  such  a  repudiation 
as  a  breach,  the  latter  is  not  excused  from 
continuing  to  perform  on  his  part;  Smith 
v.  Banking  Co.,  113  Ga.  975,  39  S.  E.  410. 
Where  the  agreement  is  mutual  and  de- 
pendent, and  one  party  fails  to  perform  his 
part,  the  other  party  may  treat  it  as  rescind- 
ed ;  South  Texas  Telephone  Co.  v.  Hunting- 
ton (Tex.)  121  S.  W.  242 ;  and  he  is  not  bound 
to  tender  performance;  Hollerbach  &  May 
Contract  Co.  v.  Wilkins,  130  Ky.  51,  112  S. 
W.  1126.  The  abandonment  of  a  ship  is  a 
renunciation  of  the  contract  of  affreight- 
ment; The  Eliza  Lines,  199  U.  S.  119,  26 
Sup.  Ct.  8,  50  L.  Ed.  115,  four  judges  dis- 
senting. Where  one  party  to  a  contract  re- 
fuses, by  anticipation,  to  perform  the  con- 
tract, the  other  party  may  consider  it  a 
breach  and  sue  immediately ;  Hochster  y. 
De  la  Tour,  2  El.  &  Bl.  678.  In  Frost  v. 
Knight,  7  Ex.  Ill,  defendant  had  promised 
to  marry  plaintiff  as  soon  as  his  father 
should  die.  While  his  father  was  yet  alive, 
he  absolutely  refused  to  marry  plaintiff;  it 
was  held  that  an  action  would  lie  during  the 
father's  lifetime.  In  17  Q.  B.  127,  it  was 
held  that  upon  the  defendant  railroad  com- 
pany giving  notice  to  plaintiff  that  it  would 
not  receive  any  more  of  its  chairs,  it  might 
sue  for  the  breach  without  tendering  the 
goods.  In  16  Q.  B.  Div.  467,  it  was  held  that 
where  one  party  by  anticipation  refuses  to 
perform  the  contract,  it  entitled  the  other 
party,  if  he  pleased,  to  agree  to  the  contract 
being  put  an  end  to.  In  Dingley  v.  Oler,  117 
U.  S.  502,  6  Sup.  Ct.  850,  29  L.  Ed.  984,  the 
court  considered  the  cases,  but  declined  to 
decide  whether  or  not  the  rule  should  be 
maintained  as  applicable  to  the  class  of  cases 
to  which  the  one  then  before  it  belonged; 
and  said  it  has  been  called  in  England  a 
"novel  doctrine"  and  has  never  been  applied 
in  that  court. 

The  cases  of  Foss- Schneider  Brewing  Co. 


v.  Bullock,  59  Fed.  S7,  8  C.  C.  A.  14,  and 
Edward  Hines  Lumber  Co.  v.  Alley,  73  Fed. 
603,  19  C.  C.  A.  599,  followed  Hochster  v.  De 
la  Tour.  In  Horst  v.  Roehm,  84  Fed.  569, 
Dallas,  J.,  was  of  opinion  that  the  question 
was  an  open  one,  so  far  as  the  supreme  court 
was  concerned,  and  followed  the  ruling  of 
Judge  Lowell  in  Dingley  v.  Oler,  11  Fed.  372, 
supported  by  the  two  federal  cases  last  above 
mentioned.  He  considered  that  Judge  Lowell 
had  answered  the  argument  of  the  court  in 
Daniels  v.  Newton,  114  Mass.  530,  19  Am. 
Rep.  3S4 ;  and  concurred  with  him  in  think- 
ing that  the  cases  which  follow  the  English 
rule  are  "founded  in  good  sense,  and  rest 
on  strong  grounds  of  convenience  however 
difficult  it  may  be  to  reconcile  them  with  the 
strictest  logic." 

Wallace,  C.  J.,  in  Marks  v.  Van  Eeghen, 
85  Fed.  853,  30  C.  C.  A.  208,  considered  that 
Dingley  v.  Oler,  117  U.  S.  490,  6  Sup.  Ct 
S50,  29  L.  Ed.  984,  was  a  dictum,  and  that 
there  was  an  overwhelming  preponderance  of 
adjudication  in  favor  of  the  doctrine  of  Hoch- 
ster v.  De  la  Tour.  He  cited  also  Nichols 
v.  Steel  Co.,  137  N.  Y.  471,  33  N.  E.  561; 
Kalkhoff  v.  Nelson,  60  Minn.  284,  62  N.  W. 
332 ;  Davis  v.  School-Furniture  Co.,  41  W. 
Va.  717,  24  S.  E.  630. 

In  Roehm  v.  Horst,  178  U.  S.  1,  20  Sup. 
Ct.  7S0,  44  L.  Ed.  953,  4  Ann.  Cas.  406,  the 
court  reviewing  the  English  and  American 
cases,  held  that,  upon  such  breach,  the  oth- 
er party  may  consider  himself  absolved  from 
any  future  performance,  and  either  sue  im- 
mediately, or  wait  till  the  time  when  the  act 
was  to  be  done,  still  holding  the  contract  as 
prospectively  binding  for  the  exercise  of  his 
option. 

In  The  Eliza  Lines,  199  U.  S.  119,  26  Sup. 
Ct.  8,  50  L.  Ed.  115,  4  Ann.  Cas.  406,  Holmes, 
J.,  said:  'A  repudiation  of  a  contract 
amounting  to  a  breach,  warrants  the  other 
party  in  going  no  further  in  performance 
on  his  side.  Roehm  v.  Horst,  178  U.  S.  1,  20 
Sup.  Ct.  780,  44  L.  Ed.  953,  4  Ann.  Cas.  406." 

The  rule  adopted  in  Roehm  v.  Horst,  178 
U.  S.  1,  20  Sup.  Ct.  780,  44  L.  Ed.  953,  4  Ann. 
Cas.  406,  was  applied  in  John  A.  Roebling's 
Sons'  Co.  v.  Fence  Co.,  130  111.  660,  22  N.  E. 
518;  Windmuller  v.  Pope,  107  N.  Y.  674,  14 
N.  E.  436 ;  id.,  12  N.  Y.  St.  Rep.  292 ;  Hock- 
ing v.  Hamilton,  158  Pa.  107,  27  Atl.  836; 
McCormick  v.  Basal,  46  la.  235;  Davis  v. 
Furniture  Co.,  41  W.  Va.  717,  24  S.  E.  630; 
Remy  v.  Olds,  S8  Cal.  537,  26  Pac.  355; 
Kurtz  v.  Frank,  76  Ind.  594,  40  Am.  Rep.  275. 

The  renunciation  must  be  unequivocal  and 
absolute ;  and  must  be  acted  upon  by  the  oth- 
er parties  and  must  terminate  the  entire  con- 
tract; [1900]  2  Ch.  298;  John  A.  Roebling's 
Sons'  Co.  v.  Fence  Co.,  130  111.  660,  22  N. 
E.  518.  It  does  not  operate  as  a  rescission 
of  the  contract,  because  one  party  alone  can- 
not rescind;  but  the  other  party  may  adopt 
such   renunciation  with  the  effect  that  the 


BREACH 


391 


BREACH 


contract  is  at  an  end,  except  for  the  purpose 
of  bringing  an  action  for  the  damages  conse- 
quent upon  the  renunciation;  [1910]  2  Ch. 
248.  The  rule  in  Hochster  v.  De  la  Tour  was 
disapproved  in  Daniels  v.  Newton,  114  Mass. 
530,  19  Am.  Rep.  3S4,  and  Stanford  v.  Mc- 
Gill,  6  N.  D.  536,  72  N.  W.  938,  38  L.  R.  A. 
7G0,  on  elaborate  consideration.  The  rejec- 
tion of  the  rule  in  the  former  case  was  based 
upon  its  inapplicability  to  commercial  paper, 
but  in  Roehm  v.  Ilorst,  178  U.  S.  17,  20 
Sup.  Ct.  7S0,  44  L.  Ed.  953,  it  was  pointed 
out  that  in  that  case  the  consideration  had 
passed,  there  were  no  mutual  obligations,  and 
that  such  case  did  not  fall  within  the  rea- 
son of  the  rule,  citing  Nichols  v.  Steel  Co., 
137  N.  Y.  4S7,  33  N.  E.  561. 

See  Wald's  Anson,  Contracts  (Williston's 
ed.)  355. 

Where  a  trust  company  agrees  to  make  a 
loan  upon  a  building  to  be  built  and  later 
repudiates  the  agreement,  a  right  of  action 
arises  at  once  and  the  prospective  borrower 
need  not  wait  until  the  building  is  completed  ; 
Holt  v.  Ins.  Co.,  74  N.  J.  L.  795,  67  All.  118, 
11  L.  R.  A.  (N.  S.)  100,  12  Ann.  Cas.  1105. 
In  New  York  it  is  held  that  an  action  will 
not  lie  at  once  where  the  maker  of  a  draft 
declares  he  will  not  pay  it  on  maturity; 
Benecke  v.  Haebler,  3S  App.  Div.  344,  58  N. 
Y.  Supp.  16 ;  and  so  where  an  insurance  com- 
pany decides  to  limit  the  amount  payable  on 
existing  policies ;  Langan  v.  Supreme  Coun- 
cil, 174  N.  Y.  266,  66  N.  E.  932;  Porter  v. 
Supreme  Council,  1S3  Mass.  326,  67  N.  E. 
23S;  contra,  O'Neill  v.  Supreme  Council,  70 
N.  J.  L.  410,  57  Atl.  463,  1  Ann.  Cas.  422. 

In  a  contract  for  the  purchase  of  a  horse 
in  return  for  personal  services  for  a  specified 
period,  where  the  buyer  refuses  to  work,  the 
seller  may  retake  the  horse;  Cleary  v.  Mor- 
son,  94  Miss.  27S,  4S  South.  817;  where  one 
cancels  an  order  for  clothing  before  it  is 
manufactured,  the  seller  cannot  complete  the 
manufacture  and  sue  for  the  full  contract; 
he  is  bound  to  reduce  his  damages  as  far 
as  possible;  Woolf  v.  Hamburger,  129  App. 
Div.  8S3,  114  N.  Y.  Supp.  1S6. 

Though  a  party  has  waived  a  breach  for 
which  he  could  have  declared  a  forfeiture,  he 
may  still  counterclaim  damages  for  such 
breach ;  Clark  v.  West,  193  N.  Y.  349,  86  N. 
E.  1 ;  neither  payments  on  account,  nor  per- 
mitting the  contractor  to  complete  the  work 
after  the  specified  time,  is  a,  waiver  of  such 
damages;  Reading  Hardware  Co.  v.  City  of 
New  York,  129  App.  Div.  292,  113  N.  Y.  Supp. 
331 ;  nor  taking  possession  of  a  building  be- 
fore completion;  Mikolajewski  v.  Pugell,  62 
Misc.  449,  114  N.  Y.  Supp.  10S4.  But  where 
the  defendant  has  himself  repudiated  the 
contract  after  the  delivery  of  one  installment 
he  is  barred  from  setting  up  the  defective- 
ness of  such  installment  subsequently  dis- 
covered; 21  T.  L.  R.  413.  Where  govern- 
ment officials  test  and  accept  a  defective  dock 


in  ignorance  of  such  defects  which  if  known 
would  have  led  to  a  refusal  to  accept,  the 
government  is  not  precluded  from  refusing  It 
on  subsequent  discovery ;  U.  S.  v.  Walsb,  115 
Fed.  697,  52  C.  C.  A.  419. 

An  anticipatory  breach  will  operate  as  a 
present  breach  only  if  accepted  and  acted  up- 
on by  the  other  party,  who  may  disregard 
it  and  await  the  appointed  day.  If  not  ac- 
cepted by  the  other  party,  the  renunciation 
may  be  witbdrawn  before  performance  ia 
due,  but  if  not  withdrawn  it  is  evidence  of  a 
continued  intention  to  that  effect.  It  oper- 
ates as  a  continued  waiver  of  all  condi- 
tions precedent  to  the  liability  for  perform- 
ance;  Leake,  Contract  639. 

As  to  one  endeavoring  to  persuade  a  third 
party  to  break  his  contract,  see  Injunction. 

In  Pleading.  That  part  of  the  declaration 
in  which  the  violation  of  the  defendant's  con- 
tract is  stated. 

It  is  usual  in  assumpsit  to  introduce  the 
statement  of  the  particular  breach,  with  the 
allegation  that  the  defendant,  contriving  and 
fraudulently  intending  craftily  and  subtilely 
to  deceive  and  defraud  the  plaintiff,  neglect- 
ed and  refused  to  perform,  or  performed,  the 
particular  act,  contrary  to  the  previous  stip- 
ulation. 

In  debt,  the  breach  or  cause  of  action 
complained  of  must  proceed  only  for  the  non- 
payment of  money  previously  alleged  to  be 
payable;  and  such  breach  is  very  similar 
whether  the  action  be  in  debt  on  simple  con- 
tract, specialty,  record,  or  statute,  and  is 
usually  of  the  following  form:  "Yet  the  said 
defendant,  although  often  requested  so  to 
do,  hath  not  as  yet  paid  the  said  sum  of 
dollars,  above  demanded,  nor  any  part 


thereof,  to  the  said  plaintiff,  but  hath  hither- 
to wholly   neglected   and  refused   so   to  do, 

to    the    damage    of   the   said   plaintiff    

dollars,  and  therefore  he  brings  suit,"  etc. 

The  breach  must  obviously  be  governed 
by  the  nature  of  the  stipulation;  it  ought 
to  be  assigned  in  the  words  of  the  contract, 
either  negatively  or  affirmatively,  or  in  words 
which  are  coextensive  with  its  import  and 
effect;  Comyns,  Dig.  Pleader,  C,  45;  2  Wins. 
Saund.  1S1  b,  c;  Fletcher  v.  Peck,  6  Cra.  (U. 
S.)  127,  3  L.  Ed.  162.  And  see  Hughes  v. 
Smith,  5  Johns.  (N.  Y.)  16S;  Bender  v.  From- 
berger,  4  Dall.  (U.  S.)  436,  1  L.  Ed.  89S; 
Craghill  v.  Page,  2  Hen.  &  M.  (Ya.)  446; 
Steph.   PI.   (And.  ed.)   115. 

When  the  contract  is  in  the  disjunctive, 
as  on  a  promise  to  deliver  a  horse  by  a  par- 
ticular day,  or  to  pay  a  sum  of  money,  the 
breach  ought  to  be  assigned  that  the  de- 
fendant did  not  do  the  one  act  nor  the  oth- 
er; 1  Sid.  440;  Hardr.  320;  Comyns,  Dig. 
Pleader,  C. 

BREACH  OF  CLOSE.  Every  unwarrant- 
able entry  upon  the  soil  of  another  is  a 
breach  of  his  close;   3  Bla.  Com.  209. 


BREACH  OP  COVENANT 


392 


BREACH  OF  TRUST 


BREACH  OF  COVENANT.  A  violation 
of,  or  a  failure  to  perform  the  conditions  of, 
a  bond  or  covenant.  The  remedy  is  in  some 
cases  by  a  writ  of  covenant;  in  others,  by 
an  action  of  debt;   3  Bla.  Com.  156. 

BREACH  OF  THE  PEACE.  A  violation 
of  public  order;  the  offence  of  disturbing 
the  public  peace.  One  guilty  of  this  offence 
may  be  held  to  bail  for  his  good  behavior. 
An  act  of  public  indecorum  is  also  a  breach 
of  the  peace.  The  remedy  for  this  offence  is 
by  indictment. 

Persons  who  go  out  on  a  "strike"'  and  then 
linger  about  the  place  of  their  former  em- 
ployment, hooting  at  others  taking  their  plac- 
es, may  be  bound  over  to  keep  the  peace; 
Com.  v.  Silvers,  11  Pa.  Co.  C.  R.  4S1.  One 
may  disturb  the  peace  while  on  his  own 
premises  by  the  use  of  violent  language  to  a 
person  lawfully  there;  State  v.  Brumley,  53 
Mo.  App.  126. 

BREACH  OF  PRISON.  An  unlawful  es- 
cape out  of  prison.  This  is  of  itself  a  mis- 
demeanor; 1  Russell,  Cr.  37S;  4  Bla.  Com. 
129;  2  Hawk.  PI.  Cr.  c.  18,  s.  1;  State  v. 
Leach,  7  Conn.  452,  18  Am.  Dec.  113.  The 
remedy  for  this  offence  is  by  indictment. 
See  Escape. 

BREACH  OF  PROMISE  OF  MARRIAGE. 
See  Promise  of  Marriage. 

BREACH  OF  TRUST.  The  wilful  misap- 
propriation, by  a  trustee,  of  a  thing  which 
had  been  lawfully  delivered  to  him  in  confi- 
dence. 

The  distinction  between  larceny  and  a  breach  of 
trust  is  to  be  found  chiefly  in  the  terms  or  way  in 
which  the  thing  was  taken  originally  into  the  party's 
possession ;  and  the  rule  seems  to  be,  that  when- 
ever the  article  is  obtained  upon  a  fair  contract  not 
for  a  mere  temporary  purpose,  or  by  one  who  is  in 
the  employment  of  the  deliverer,  then  the  subse- 
quent misappropriation  is  to  be  considered  as  an  act 
of  breach  of  trust.  This  rule  is,  however,  subject 
to  many  nice  distinctions.  Lewer  v.  Com.,  5  S.  & 
R.  (Pa.)  93,  97.  It  has  been  adjudged  that  when  the 
owner  of  goods  parts  with  the  possession  for  a  par- 
ticular purpose,  and  the  person  who  receives  them 
avowedly  for  that  purpose  has  at  the  time  a  fraud- 
ulent intention  to  make  use  of  the  possession  as  a 
means  of  converting  the  goods  to  his  own  use,  and 
does  so  convert  them,  it  is  larceny ;  but  if  the  own- 
er part  with  the  property,  although  fraudulent 
means  have  been  used  to  obtain  it,  the  act  of  con- 
version is  not  larceny  ;    Alison,  Princ.  c.  12,  p.  354. 

In  the  Year  Book  21  Hen.  VII.  14,  the  distinction 
is  thus  stated: — "Pigot.  If  I  deliver  a  jewel  or 
money  to  my  servant  to  keep,  and  he  flees  or  goes 
from  me  with  the  jewel.  Is  it  felony?  Cutler  said, 
Yes:  for  so  long  as  he  is  with  me  or  in  my  house, 
that  which  I  have  delivered  to  him  is  adjudged  to 
be  In  my  possession ;  as  my  butler,  who  has  my 
plate  in  keeping,  if  he  flees  with  it,  it  is  felony. 
Same  law,  if  he  who  keeps  my  horse  goes  away  with 
him.  The  reason  is,  they  are  always  in  my  posses- 
sion. But  if  I  deliver  a  horse  to  my  servant  to  ride 
to  market  or  the  fair,  and  he  flee  with  him,  it  is  no 
felony;  for  he  comes  lawfully  to  the  possession  of 
the  horse  by  delivery.  And  so  it  is  if  I  give  him  a 
jewel  to  carry  to  London,  or  to  pay  one,  or  to  buy  a 
thing,  and  he  flee  with  it,  it  is  not  felony ;  for  it  is 
out  of  my  possession,  and  he  comes  lawfully  to  it. 
Pigot.  It  can  well  be ;  for  the  master  in  these  cases 
has  an  action  against  him,  viz.:  Detinue,  or  Ac- 
count,"   See  this  point  fully  discussed  in  Stanford, 


PI.  Cr.  lib.  1.    See  also  Year  B.  Edw.  IV.  fol.  9 ;    52 
Hen.  III.  7;    21  Hen.  VII.  15.     See  Breaking  Bulk. 

BREAKING.  Parting  or  dividing  by  force 
and  violence  a  solid  substance,  or  piercing, 
penetrating,  or  bursting  through  the  same. 

In  cases  of  burglary  and  housebreaking, 
the  removal  of  any  part  of  the  house,  or 
of  the  fastenings  provided  to  secure  it,  with 
violence  and  a  felonious  intent. 

The  breaking  is  actual,  as  in  the  above 
case;  or  constructive,  as  when  the  burglar 
or  housebreaker  gains  an  entry  by  fraud, 
conspiracy  or  threat;  Whart  Cr.  L.  759;  1 
Hale,  PI.  Cr.  553;  State  v.  Wiseman,  68 
N.  C.  207;  Johnston  v.  Com.,  85  Pa.  54,  27 
Am.  Rep.  622;  Com.  v.  Lowrey,  158  Mass.  18, 
32  N.  E.  940;  lifting  a  latch  in  order  to  en- 
ter a  building  is  a  breaking ;  State  v.  O'Brien, 
SI  la.  93,  46  N.  W.  861.  In  England  it  has 
been  decided  that  if  the  sash  of  a  window 
be  partly  open,  but  not  sufficiently  so  to  ad- 
mit a  person,  the  raising  of  it  so  as  to  ad- 
mit a  person  is  not  a  breaking  of  the  house; 
1  Mood.  178;  followed  in  Com.  v.  Strupney, 
105  Mass.  5S8,  7  Am.  Rep.  556.  See  People 
v.  Dupree,  98  Mich.  26,  56  N.  W.  1046.  No 
reasons  are  assigned.  It  is  difficult  to  con- 
ceive, if  this  case  be  law,  what  further  open- 
ing will  amount  to  a  breaking.  But  see  1 
Moody  327,  377;  1  B.  &  H.  Lead.  Cr.  Cas. 
524.    See  Burglary. 

It  was  doubted,  under  the  ancient  common  law, 
whether  the  breaking  out  of  a  dwelling-house  in  the 
night-time  was  a  breaking  sufficient  to  constitute 
burglary.  Sir  M.  Hale  thinks  that  this  was  not 
burglary,  because  fregit  et  exivit,  non  fregit  et 
intravit;  1  Hale,  PI.  Cr.  554;  Rolland  v.  Com., 
82  Pa.  324,  22  Am.  Rep.  758  ;  see  Brown  v.  State,  55 
Ala.  123,  28  Am.  Rep.  693.  It  may,  perhaps,  be 
thought  that  a  breaking  out  is  not  so  alarming  as 
a  breaking  in,  and,  indeed,  may  be  a  relief  to  the 
minds  of  the  inmates;  they  may  exclaim,  as  Cicero 
did  of  Catiline,  Magna  me  metu  liberabis,  dummodo 
inter  me  atque  te  mums  intersit.  But  this  breaking 
was  made  burglary  by  the  statute  12  Anne,  c.  1,  §  7 
(1713).  The  getting  the  head  out  through  a  sky- 
light has  been  held  to  be  a  sufficient  breaking  out  of 
a  house  to  complete  the  crime  of  burglary;  1  Jebb 
99.  The  statute  of  12  Anne  is  too  recent  to  be  bind- 
ing as  a  part  of  the  common  law  in  all  of  the  United 
States;  2  Bish.  Crim.  L.  §  99;  1  B.  &  H.  Lead.  Cr. 
Cas.  540. 

BREAKING  BULK.  The  doctrine  of 
breaking  bulk  proceeds  upon  the  ground  of 
a  determination  of  the  privity  of  the  bail- 
ment by  the  wrongful  act  of  the  bailee. 
Thus,  where  a  carrier  had  agreed  to  carry 
certain  bales  of  goods,  which  were  delivered 
to  him,  to  Southampton,  but  carried  them 
to  another  place,  broke  open  the  bales,  and 
took  the  goods  contained  in  them  feloniously 
and  converted  them  to  his  own  use,  the  ma- 
jority of  the  judges  held  that  if  the  party 
had  sold  the  entire  bales  it  would  not  have 
been  felony;  "but  as  he  broke  them,  and 
took  what  was  in  them,  he  did  it  without 
warrant,"  and  so  was  guilty  of  felony;  Y. 
B.  13  Edw.  IV.  fol.  9.  If  a  miller  steals  part 
of  the  meal,  "although  the  corn  was  deliv- 
ered to  him  to  grind,  nevertheless  if  he  steal 


BREAKING  BULK 


393 


BRETI11;1-1N* 


It  It  is  felony,  being  taken  from  the  rest;"  1 
Roile,  Abr.  73,  pi.  16 ;  Com.  v.  James,  1  Pick. 
(Mass.)  375.  This  construction  involves  the 
absurd  consequence  of  its  being  felony  to 
steal  pwt  of  a  package,  but  a  breach  of  trust 
to  steal  the  whole. 

In  an  early  ease  in  Massachusetts,  it  was 
decided  that  if  a  wagon-load  of  goods,  con- 
sisting of  several  packages,  is  delivered  to 
a  common  carrier  to  be  transported  in  a 
body  to  a  certain  place,  and  he,  with  a  fe- 
lonious intent,  separates  one  entire  package, 
whether  before  or  after  the  delivery  of  the 
other  packages,  this  is  a  suilicient  breaking 
of  bulk  to  constitute  larceny,  without  any 
breaking  of  the  package  so  separated ;  Com. 
v.  Brown,  4  Mass.  5S0.  But  this  decision  is 
in  direct  conflict  with  the  English  cases* 
Thus,  where  the  master  and  owner  of  a  ship 
steals  a  package  out  of  several  packages  de- 
livered him  to  carry,  without  removing  any- 
thing from  the  particular  package;  1  Russ. 
&  R.  92;  or  where  a  letter-carrier  is  in- 
trusted with  two  directed  envelopes,  each 
containing  a  51.  note,  and  delivers  the  en- 
velopes, having  previously  taken  out  the  two 
notes;  1  Den.  Cr.  Cas.  215;  or  where  a 
drover  separates  one  sheep  from  a  flock  in- 
trusted to  him  to  drive  a  certain  distance; 
1  Jebb.  51;  this  is  not  a  breaking  of  bulk 
sufficient  to  terminate  the  bailment  and  to 
constitute  larceny;  2  Bish.  Cr.  L.  860,  868. 
The  Larceny  Act  of  1861  has  met  the  diffi- 
culty of  deciding  this  class  of  cases  in  Eng- 
land, by  providing  that  a  bailee  of  any  chat- 
tel, money,  or  valuable  security,  who  fraud- 
ulently takes  the  same,  although  not  break- 
ing bulk,  shall  be  guilty  of  larceny. 

BREAKING  DOORS.  Forcibly  removing 
the  fastenings  of  a  house  so  that  a  person 
may  enter.     See  Arrest. 

BREATH.  In  Medical  Jurisprudence.  The 
air  expelled  from  the  chest  at  each  expira- 
tion. 

Breathing,  though  a  usual  sign  of  life,  is 
not  conclusive  that  a  child  was  wholly  born 
alive;  as  breathing  may  take  place  before 
the  whole  delivery  of  the  mother  is  com- 
plete; 5  C.  &  P.  329.  See  Birth;  Life;  In- 
fanticide. 

BREHON  LAW.  The  ancient  system  of 
Irish  law;  so  named  from  the  judges,  called 
Brehons,  or  Breitheamhuin.  Its  existence 
has  been  traced  from  the  earliest  period  of 
Irish  history  down  to  the  time  of  the  Anglo- 
Norman  invasion.  It  is  still  a  subject  of 
antiquarian  research.  An  outline  of  the  sys- 
tem will  be  found  in  Knight's  English  Cy- 
clopaedia, and  also  in  the  Penny  Cyclopaedia. 
See  Encyc.  Brit. 

BRETHREN.  It  is  used  in  the  sense  of 
brother. 

It  may  be  legitimately  used  in  addressing 
mixed    numbers,   although    such    use  is  un- 


usual ;  It  may  include  a  daughter ;  Terry  v. 
Brunson,  1  Rich.  Eq.  (S.  C.j  78.  It  is  so  used 
in  the  Protestant  Episcopal  Prayer  Book. 

BRETHREN    OF    TRINITY    HOUSE.     See 

Elder  Brethren. 

BRETTS  AND  SCOTTS,  LAWS  OF  THE. 
A  code  or  system  of  laws  in  use  among  the 
Celtic  tribes  of  Scotland  down  to  the  begin- 
ning of  the  fourteenth  century,  and  then 
abolished  by  Edward  I.  A  fragment  only 
is  now  extant.  See  Acts  of  Pari,  of  Scot- 
land, vol.  1,  pp.  299-301,  Edin.  1844.  It  is 
interesting,  like  the  Brehon  laws  of  Ireland, 
in  a  historical  point  of  view. 

BREVE  (Lat.  breve,  brevis,  short).  A 
writ.  An  original  writ.  Any  writ  or  pre- 
cept issuing  from  the  king  or  his  courts. 

It  is  the  Latin  term  which  in  law  is  translated 
by  "writ."  In  the  Roman  law  these  brevia  were  in 
the  form  of  letters ;  and  this  form  was  also  given  to 
the  early  English  brevia,  and  is  retained  to  some 
degree  in  the  modern  writs.  Spelman,  Gloss.  The 
name  breve  was  given  because  they  stated  briefly 
the  matter  in  question  (rem  quce  est  breviter  nar- 
rat).  It  was  said  to  be  "shaped  in  conformity  to  a 
rule  of  law"  (formatum  ad  similitudinem  regulas 
juris)  ;  because  it  was  requisite  that  it  should  state 
facts  against  the  respondent  bringing  him  within 
the  operation  of  some  rule  of  law.  The  whole  pas- 
sage from  Bracton  is  as  follows:  "Breve  quidem, 
cum  sit  formatum  ad  similitudinem  regular  juris 
quia  breviter  et  paucis  verbis  intentionem  profer- 
entes  exponit,  et  explanat  sicut  regula  juris  rem 
qua  est  breviter  narrat.  Non  tamen  ita  breve  esse 
debet,  quin  rationem  et  vim  intentionis  continent." 
Bracton  413  b,  §  2.  It  is  spelled  briefe  by  Brooke. 
Each  writ  soon  came  to  be  distinguished  by  some 
important  word  or  phrase  contained  in  the  brief 
statement,  or  from  the  general  subject-matter;  and 
this  name  was  in  turn  transferred  to  the  form  of 
action,  in  the  prosecution  of  which  the  writ  (or 
breve)  was  procured.  Stephen,  PI.  9.  See  Writ. 
It  is  used  perhaps  more  frequently  in  the  plural 
(brevia)  than  in  the  singular,  especially  in  speak- 
ing of  the  different  classes  of  writs. 

BREVE  INNOMINATUM.  A  writ  contain- 
ing a  general  statement  only  of  the  cause  of 
action. 

BREVE  NOMINATUM.  A  writ  containing 
a  statement  of  the  circumstances  of  the  ac- 
tion. 

BREVE  ORIGINALE.     An  original  writ. 

BREVE  DE  RECTO.  A  writ  of  right 
The  writ  of  right  patent  is  of  the  highest 
nature  of  any  in  the  law.  Cowell ;  Fitzherb. 
Nat.  Brev. 

BREVE  TESTATUM.  A  written  memo- 
randum introduced  to  perpetuate  the  tenor 
of  the  conveyance  and  investiture  of  lands. 
2  Bla.  Com.  307. 

It  was  prepared  after  the  transaction,  and 
depended  for  its  validity  upon  the  testimony 
of  witnesses,  as  it  was  not  sealed.  Spelman, 
Gloss. 

In  Scotch  Law.  A  similar  memorandum 
made  out  at  the  time  of  the  transfer,  attest- 
ed by  the  pares  curice  and  by  the  seal  of 
the  superior.     Bell,  Diet. 

BREVET.     In     French     Law.     A    warrant 


BREVET 


394 


BI3EVIAR1UM  ALARICIANUM 


granted  by  government  to  authorize  an  in- 
dividual to  do  something  for  his  own  benefit. 

Brevet  d' 'invention.    A  patent. 

In  American  Law.  A  commission  confer- 
ring on  a  military  officer  a  degree  of  rank 
specified  in  the  commission,  without,  how- 
ever, conveying  a  right  to  receive  corre- 
sponding pay.  See  U.  S.  v.  Hunt,  14  Wall. 
(U.  S.)  552,  20  L.  Ed.  739. 

BR E VI A  (Lat).  Writs.  The  plural  of 
breve,  which  see. 

BREVIA  ANTICIPANTIA  (Lat).  Writs 
of  prevention.     See  Quia  Timet. 


BREVIA     DE    CURSU     (Lat). 
course.     See  Beevia  Fobmata. 


Writs    of 


BREVIA  FORMATA  (Lat).  Certain 
writs  of  approved  and  established  form  which 
were  granted  of  course  in  actions  to  which 
they  were  applicable,  and  which  could  not 
be  changed  but  by  consent  of  the  great  coun- 
cil of  the  realm.     Bracton  413  b. 

All  original  writs,  without  which  an  action  could 
not  anciently  be  commenced,  issued  from  the  chan- 
cery. Many  of  these  were  of  ancient  and  established 
form,  and  could  not  be  altered;  others  admitted  of 
variation  by  the  clerks  according  to  the  circum- 
stances of  the  case.  In  obtaining  a  writ,  a  praecipe 
was  issued  by  the  party  demandant,  directed  to  the 
proper  officer  in  chancery,  stating  the  substance  of 
his  claim.  If  a  writ  already  in  existence  and  en- 
rolled upon  the  Register  was  found  exactly  adapted 
to  the  case,  it  issued  as  of  course  (de  cursu),  being 
copied  out  by  the  junior  clerks,  called  cursitors.  If 
none  was  found,  a  new  writ  was  prepared  by  the 
chancellor  and  subjected  to  the  decision  of  the 
grand  council,  their  assent  being  presumed  in  some 
cases  if  no  objection  was  made.  In  1250  it  was  pro- 
vided that  no  new  writs  should  issue  except  by 
direct  command  of  the  king  or  the  council.  The 
clerks,  however,  it  is  supposed,  still  exercised  the 
liberty  of  adapting  the  old  forms  to  cases  new  only 
in  the  instance,  the  council,  and  its  successor  (in 
this  respect,  at  least),  parliament,  possessing  the 
power  to  make  writs  new  in  principle.  The  strict- 
ness with  which  the  common-law  courts,  to  which 
the  writs  were  returnable,  adhered  to  the  ancient 
form,  gave  occasion  for  the  passage  of  the  Stat. 
Westm.  2,  c.  24,  providing  for  the  formation  of  new 
writs.  Those  writs  which  were  contained  in  the 
Register  are  generally  considered  as  pre-eminently 
brevia  formata. 

BREVIA  JUDICIALIA  (Lat).  Judicial 
writs.  Subsidiary  writs  issued  from  the 
court  during  the  progress  of  an  action,  or  in 
execution  of  the  judgment 

They  were  said  to  vary  according  to  the  variety 
of  the  pleadings  and  responses  of  the  parties  to  the 
action;  Bract.  413b;  Fleta,  lib.  2,  c.  13,  §  3;  Co. 
Litt.  54  t,  73  6.  The  various  forms,  however,  be- 
came long  since  fixed  beyond  the  power  of  the 
courts  to  alter  them;  Barnet  v.  Ihrie,  1  Rawle  (Pa.) 
52.  Some  of  these  judicial  writs,  especially  that  of 
capias,  by  a  fiction  of  the  issue  of  an  original  writ, 
came  to  supersede  original  writs  entirely,  or  nearly 
so.    See  Original  Writ. 

BREVIA  MAGISTRALIA.  Writs  framed 
by  the  masters  in  chancery.  They  were  sub- 
ject to  variation  according  to  the  diversity 
of  cases  and  complaints.  Bracton,  413  b ; 
Fleta,  lib.  2,  c.  13,  §  4. 

BREVIA  TESTATA.  See  Beeve  Testa- 
tum. 


BREVIAR1UM  ALARICIANUM.  A  compi- 
lation made  by  order  of  Alaric  II.  and  pub- 
lished for  the  use  of  his  Roman  subjects  in 
the  year  506.  It  contained  large  excerpts 
from  the  Theodosian  Codex,  a  few  from  the 
Gregorianus  and  Hermogenianus,  some  post- 
Theodosian  constitutions,  some  of  the  Sen- 
tentioe  of  Paulus,  one  little  scrap  of  Papinian 
and  an  abridged  version  of  the  Institutes  of 
Gaius.  Maitland,  1  Sel.  Essays  in  Anglo- 
Amer.  L.  H.  15  (14  L.  Q.  R.  13).  It  is  also 
known  as  Lex  Romana  Visigothorum.  It  be- 
came the  principal,  if  not  the  only,  repre- 
sentative of  Roman  law  among  the  Franks. 
id. 

BR E VI ATE.  An  abstract  or  epitome  of  a 
writing.  Holthouse.  The  name  is  usually 
applied  to  the  famous  brief  of  Mr.  Murray 
(afterwards  Lord  Mansfield)  for  the  com- 
plainant in  the  case  of  Penn  v.  Lord  Balti- 
more, 1  Ves.  444.  A  copy  of  the  original 
printed  folio  is  in  the  Pennsylvania  Histori- 
cal Society  and  it  is  reprinted  in  the  Penn- 
sylvania Archives,  making  volume  16  of  the 
Third  Series. 

BREVIBUS    ET    ROTULIS    LIBERANDIS. 

A  writ  or  mandate  directed  to  a  sheriff,  com- 
manding him  to  deliver  to  his  successor  the 
county  and  the  appurtenances,  with  all  the 
briefs,  rolls,  remembrances,  and  other  things 
belonging  to  his  office. 

BRIBE.  The  gift  or  promise,  which  is  ac- 
cepted, of  some  advantage  as  the  inducement 
for  some  illegal  act  or  omission ;  or  of  some 
illegal  emolument,  as  a  consideration  for 
preferring  one  person  to  another,  in  the  per- 
formance of  a  legal  act. 

BRIBERY.  The  receiving  or  offering  any 
undue  reward  by  or  to  any  person  whom- 
soever, whose  ordinary  profession  or  busi- 
ness relates  to  the  administration  of  public 
justice,  in  order  to  influence  his  behavior 
in  office,  and  to  incline  him  to  act  contrary 
to  his  duty  and  the  known  rules  of  honesty 
and  integrity.  Co.  3d  Inst  149;  1  Hawk. 
PI.  Cr.  c.  67,  s.  2;  4  Bla.  Com.  139;  State 
v.  Ellis,  33  N.  J.  L.  102,  97  Am.  Dec.  707; 
Dishon  v.  Smith,  10  la.  212. 

The  term  bribery  now  extends  further,  and  in- 
cludes the  offence  of  giving  a  bribe  to  many  other 
classes  of  officers;  it  applies  both  to  the  actor  and 
receiver,  and  extends  to  voters,  cabinet  ministers, 
legislators,  sheriffs,  and  other  classes;  2  Whart.  Cr. 
L.  §  1858.  The  offence  of  the  giver  and  the  receiver 
of  the  bribe  has  the  same  name.  For  the  sake  of 
distinction,  that  of  the  former — viz.:  the  briber — 
might  be  properly  denominated  active  bribery ; 
while  that  of  the  latter — viz.:  the  person  bribed — 
might  be  called  passive  bribery. 

Bribery  consists  in  offering  a  present  or 
receiving  one ;  extortion  is  demanding  a  fee 
or  present  by  color  of  office ;  State  v.  Pritch- 
ard,  107  N.  C.  921,  12  S.  E.  50. 

Bribery  at  elections  for  members  of  par- 
liament has  always  been  a  crime  at  common 
law,  and  punishable  by  indictment  or  infor- 
mation.   It  still  remains  so  in  England,  not- 


BRIBERY 


395 


BRIDGE 


withstanding  the  stat.  24  Geo.  II.  c.  14;  3 
Burr.  1340,  1589.  So  is  payment  or  promise 
of  payment  for  votes  at  an  election  of  an  as- 
sistant overseer  of  a  parish ;  16  Cox,  C.  G. 
737.  To  constitute  the  offence,  it  is  not  nec- 
essary that  the  person  bribed  should  in  fact 
vote  as  solicited  to  do ;  3  Burr.  1230;  or 
even  that  he  should  have  a  right  to  vote  at 
all ;  both  are  entirely  immaterial ;  3  Burr. 
1590 ;  State  v.  Ellis,  33  N.  J.  L.  102,  97  Am. 
Dec.  707;  or  that  he  acted  without  juris- 
diction; People  v.  Jackson,  191  N.  Y.  293, 
84  N.  E.  65,  15  L.  R.  A.  (N.  S.)  1173,  14  Ann. 
Cas.  243. 

Bribery  of  a  voter  consists  in  the  offering 
of  a  reward  or  consideration  for  his  vote  or 
his  failure  to  vote;  Nichols  v.  Mudgett,  32 
Vt.  546 ;  State  v.  Jackson,  73  Me.  91,  40  Am. 
Rep.  342;  Walsh  v.  People,  65  111.  58,  16 
Am.  Rep.  569 ;    15  Q.  B.  870. 

An  attempt  to  bribe,  though  unsuccessful, 
has  been  held  criminal ;  U.  S.  v.  Worrall,  2 
Dall.  (Pa.)  3S4,  Fed.  Cas.  No.  16,766,  1  L.  Ed. 
426;  4  Burr.  2500;  Co.  3d  Inst.  147;  State 
v.  Ellis,  33  N.  J.  L.  102,  97  Am.  Dec.  707; 
Com.  v.  Chapman,  1  Va.  Cas.  138.  In  Illinois 
a  proposal  by  an  officer  to  receive  a  bribe, 
though  not  bribery,  was  held  to  be  an  indict- 
able misdemeanor  at  common  law ;  21  Am. 
L.  Reg.  617  (with  note  by  Judge  Redfield) ; 
s.  c.  Walsh  v.  People,  65  111.  58,  16  Am.  Rep. 
569 ;  but  it  has  been  held  that  upon  such  a 
proposal  by  an  officer,  one  offering  him  a 
bribe  was  not  punishable;  O'Brien  v.  State, 
6  Tex.  App.  665.  Keeping  open  house  for  the 
entertainment  of  the  members  of  the  legisla- 
ture is  not  bribery ;  Randall  v.  News  Ass'n, 
97  Mich.  136,  56  N.  W.  361. 

On  the  trial  of  an  officer  for  bribery  for 
taking  unlawful  fees,  a  corrupt  intent  must 
be  proved ;  State  v.  Pritchard,  107  N.  C.  921, 
12  S.  E.  50. 

A  writing  containing  a  statement  that  a 
person  has  been  bribed  to  testify  as  a  wit- 
ness imputes  to  such  person  the  crime  of 
perjury  and  is  libelous;  Atlanta  News  Pub- 
lishing Co.  v.  Medlock,  123  Ga.  714,  51  S.  E. 
756,  3  L.  R.  A.  (N.  S.)  1139;  Hillhouse  v. 
Dunning,  6  Conn.  391. 

See  Lobbyist;  Corrupt  Practices. 
BRIB0UR.     One  who  pilfers  other   men's 
goods ;   a  thief.    See  28  Edw.  II.  c.  1. 

BRIDGE.  A  structure  erected  over  a  riv- 
er, creek,  stream,  ditch,  ravine,  or  other  place 
to  facilitate  the  passage  thereof;  including 
by  the  term  both  arches  and  abutments; 
Board  of  Chosen  Freebolders  of  Sussex 
County  v.  Strader,  18  N.  J.  L.  108,  35  Am. 
Dec.  530;  Bardwell  v.  Town  of  Jamaica,  15 
Vt.  438 ;  Daniels  v.  Intendent  &  Wardens  of 
Athens,  55  Ga.  609;  and  approaches  of  the 
length  of  180  feet  on  either  side  of  it ;  71  L. 
T.  430 ;  and  the  roadway  over  it ;  57  L.  J. 
Q.  B.  2S0.  The  embankment  contiguous  to  a 
bridge  is  a  part  of  it;  Morgan  County  v. 
Glass,  139  Ga.  415,  77  S.  E.  583.     A  railway 


viaduct,  designed  only  for  the  passage  of  en- 
gines and  cars,  is  not  a  "bridge,"  within  the 
statutory  meaning  of  that  word;  BriTu 
Proprietors  v.  Land  &  Improvement  Co.,  1 
Wall.  (U.  S.)  116,  17  L.  Ed.  571.  See  Lake 
v.  R.  Co.,  7  New  294;  Whitall  v.  Board  of 
Chosen  Freeholders  of  Gloucester  County,  40 
N.  J.  L.  305. 

A  bridge  may  be  a  street;  26  L.  J.  Q.  B. 
11.  It  is  a  public  highway  ;  Murphy  v.  Vil- 
lage of  Ft.  Edward,  79  Misc.  296,  140  N.  Y 
Supp.  885. 

Bridges  are  either  public  or  private.  Public 
bridges  are  such  as  form  a  part  of  the  highway, 
common,  according  to  their  character  as  foot,  horse, 
or  carriage  bridges,  to  the  public  generally,  with  or 
without  toll ;  2  East  342  ;  though  their  use  may  be 
limited  to  particular  occasions,  as  to  seasons  of 
flood  or  frost;  2  Maule  &  S.  262;  4  Campb.  189. 
They  are  established  either  by  legislative  authority 
or  by  dedication. 

By    legislative    authority.     By   the   Great 

Charter  (9  Hen.  III.  c.  15),   in   England,  no 
town  or  freeman  can  be  compelled  to  make 
new   bridges   where  never  any   were  before, 
but  by  act  of  parliament.     "Under  such  act, 
they  may  be  erected  and  maintained  by  cor- 
porations chartered  for  the  purpose,   or  by 
counties,  or  in  whatever  other  mode  may  be 
prescribed;    Woolrych,   Ways   196.     In    this 
country  it  is  the  practice  to  charter  compa- 
nies for  the  same  purpose,  with  the  right  to 
take    tolls    for    their    reimbursement;     Wil- 
liams v.  Turnpike  Corporation,  4  Pick.  (Mass.) 
311;    or  to  erect  bridges  at  the  state's  ex- 
pense ;   or  by  general  statutes  to  impose  the 
duty    of    erection    and    maintenance    upon 
towns,  counties,  or  districts ;    Com.  v.  Com"rs 
of   Monroe   County,    2    W.    &    S.    (Pa.)    495; 
Sampson    v.    Goochland    Justices,    5    Gratt. 
(Va.)  241;    Town  of  Granby  v.  Thurston,  23 
Conn.  416 ;  Nelson  County  Court  v.  Washing- 
ton   County   Court,    14    B.    Monr.    (Ky.)    92; 
Lobdell   v.    Inhabitants   of   New    Bedford,   1 
Mass.  153;    Hill  v.  Board  of  Sup'rs  of  Liv- 
ingston County,  12  N.  Y.  52 ;    State  v.  Town 
of  Campton,  2  N.  H.  513;    Town  of  Water- 
ville  v.  Kennebec  County  Com'rs,  59  Me.  80. 
In  re  Saw-Mill  Run  Bridge,  85  Pa.  163  ;  State 
v.  Titus,  47  N.  J.  L.  89.     For  their  erection 
the  state  may  take  private  property,   upon 
making   compensation,   as   in   case  of   other 
highways;    Ang.   Highw.  §  SI;    the  rule  of 
damages  for  land  so  taken  being  not  its  mere 
value  for  agricultural  purposes,  but  its  value 
for  a  bridge  site,  minus  the  benefits  derived 
to  the  owner  from  the  erection  ;    Young   v. 
Harrison,  17  Ga.  30.     The  right  to  erect   a 
bridge  upon  the  land  of  another  may  also  be 
acquired  by  mere  parol  license,  which,  when 
acted  upon,  becomes  irrevocable ;   Ameriscog- 
gin  Bridge  v.  Bragg,  11  N.  H.  102 :    Hall  v. 
Boyd,  14  Ga.  1.    But  see  Foster  v.  Browning, 
4  R.  I.  47,  67  Am.  Dec.  505.     The  franchise 
of  a  toll  bridge  or  ferry  may  be  taken,  like 
other  property,  for  a  free  bridge;   West  Riv- 
er Bridge  Co.  v.  Dix,  6  How.  (U.  S.)  507,  12 
L.  Ed.  535;    Central  Bridge  Corporation  v. 


BRIDGE 


396 


BRIDGE 


Lowell,  4  Gray  (Mass.)  474;  State  v.  Can- 
terbury, 28  N.  H.  195 ;  and,  when  vested  in 
a  town  or  other  public  corporation,  may  be 
so  taken  without  compensation ;  Town  of 
East  Hartford  v.  Bridge  Co.,  10  How.  (U.  S.) 
511,  13  L.  Ed.  518. 

A  new  bridge  may  be  erected,  under  legis- 
lative authority,  so  near  an  older  bridge  or 
ferry    as   to    impair    or    destroy    its    value, 
without  compensation,  unless  the  older  fran- 
chise be  protected  by  the  terms  of  its  grant; 
Proprietors  of  Charles  River  Bridge  v.  War- 
ren Bridge,  11  Pet.  (U.  S.)  420,  9  L.  Ed.  773; 
id.,  7  Pick.  (Mass.)  344;  Thompson  v.  R.  Co., 
3    Sandf.   Ch.    (N.   Y.)    625;   Piatt   v.   Bridge 
Co.,  8  Bush  (Ky.)  31;  Parrot  v.  Lawrence,  2 
Dill.  332,  Fed.  Cas.  No.  10,772 ;  21  Can.  S.  C. 
R.   456;    The   Binghamton    Bridge,    3    Wall. 
(U.    S.)   51,  18  L.   Ed.  137;   but,  unless   au- 
thorized by  statute,  a  new  bridge  so  erected 
is    unlawful,    and    may    be    enjoined    as    a 
nuisance;  3  Bla.  Com.  21S ;  2  Cr.  M.  &  R. 
432;   Norris  v.   Farmers'   &   Teamsters'   Co., 
6  Cal.  590,  65  Am.  Dec.  535;  Proprietors  of 
Charles  River  Bridge  v.  Proprietors  of  War- 
ren Bridge,  11  Pet.  (U.  S.)  621,  9  L.  Ed.  773. 
And  if  the  older  franchise,  vested  in  an  in- 
dividual or  private  corporation,  be  protected, 
or  be  exclusive  within  given  limits,  by  the 
terms   of  its  grant,  the  erection  of  a  new 
bridge  or   ferry,   even  under  legislative  au- 
thority,  is   unconstitutional,   as   an  act  im- 
pairing the  obligations  of  contract;  Propri- 
etors of  Piscataqua  Bridge  v.   New   Hamp- 
shire Bridge,  7  N.  H.  35;  Enfield  Toll  Bridge 
Co.  v.  R.  Co.,  17  Conn.  40,  42  Am.  Dec.  716; 
Mayor,  etc.,  of  City  of  Columbus  v.  Rodgers, 
10  Ala.  37.     See  21  Can.  S.  C.  R.  456.     The 
entire  expense  of  a  bridge  erected  within  a 
particular  district  may  be  assessed  upon  the 
inhabitants;  Shaw  v.  Dennis,  5  Gilman  (111.) 
405;  Town  of  Granby  v.  Thurston,  23  Conn. 
416.      The    absolute    control    of    navigable 
streams  in  the  United   States  is   vested  in 
congress;  Miller,  Const.  457;  but  in  the  ab- 
sence of  legislation  by  congress  a  state  has 
the  right  to  erect  a  bridge  over  a  navigable 
'      river  within  its  own  limits;  Gilman  v.  Phila- 
delphia, 3  Wall.   (U.   S.)  713,   18  L.  Ed.  96; 
Com.   v.  Breed,  4  Pick.   (Mass.)  460;   Works 
v.    R.    Co.,    5    McLean    425,    Fed.    Cas.    No. 
18,046;  Dugan  v.  Bridge  Co.,  27  Pa.  303,  67 
Am.   Dec.  464;  People  v.   R.   Co.,   15  Wend. 
(N.  Y.)  113,  30  Am.  'Dec.  33;  and  so  may  a 
county;  In  re  Waverly  Borough's  Bridge,  12 
Pa.  Co.  Ct.  669;  although  in  exercising  this 
right,  care  must  be  taken  to  interrupt  navi- 
gation as  little  as  possible ;  State  v.  Inhabit- 
ants  of   Freeport,  43   Me.   198;    Renwick   v. 
Morris,    3    Hill    (N.    Y.)    621;    Terre-Haute 
Drawbridge  Co.  v.  Halliday,  4  Ind.  36 ;  Com. 
v.    Proprietors    of    New    Bedford    Bridge,    2 
Gray  (Mass.)  339;  Columbus  Ins.  Co.  v.  Ass'n, 
6  McLean  70,  Fed.  Cas.  No.  3,046;  Columbus 
Ins.  Co.   v.   Curtenius,   6  McLean  209,    Fed. 
Cas.  No.  3,045. 
The  erection  of  a  bridge  entirely  within  a 


state  across  a  navigable  river  running  part- 
ly within  and  partly  without  the  state  is  not 
a  matter  so  directly  connected  with  inter- 
state commerce  as  to  be  under  the  exclusive 
control  of  congress,  and  in  the  absence  of 
congressional  action  the  state  has  authority 
to  regulate  the  same ;  Rhea  v.  R.  Co.,  50 
Fed.  16. 

A  state  has  no  power  to  fix  tolls  on  & 
bridge  connecting  it  with  another  state, 
thereby  regulating  charges  on  interstate  com- 
merce without  the  consent  of  congress  or 
the  concurrence  of  such  other  state.  The 
chief  justice  and  three  associate  justices 
concurred  on  the  ground  that  concurrent 
acts  of  the  state  incorporating  the  bridge 
company  and  authorizing  it  to  fix  tolls  con- 
stituted a  contract  between  the  corporation 
and  both  states  which  could  not  be  altered 
by  one  state  without  the  consent  of  the  oth- 
er; Covington  &  Cincinnati  Bridge  Co.  v. 
Com.,  154  U.  S.  204,  224,  14  Sup.  Ct.  1087,  38 
L.  Ed.  962.  The  power  of  erecting  a  bridge, 
and  taking  tolls  thereon,  over  a  navigable 
river  forming  the  boundary  between  two 
states,  can  only  be  conferred  by  the  concur- 
rent legislation  of  both;  President,  etc.,  for 
Erecting  a  Bridge  near  Trenton  v.  Bridge 
Co.,  13  N.  J.  Eq.  46;  Dover  v.  Portsmouth 
Bridge,  17  N.  H.  200. 

A  bridge  is  no  less  a  means  of  commercial 
intercourse  than  a  navigable  stream,  and  the 
state  power  may  properly  determine  whether 
the  interruption  to  commerce  occasioned  by 
the  bridge  be  not  more  than  compensated 
by  the  facilities  which  it  affords.  And  if 
the  bridge  be  authorized  in  good  faith  by  a 
state,  the  federal  courts  are  not  bound  to 
enjoin  it.  However,  congress,  since  its 
power  to  regulate  commerce  is  supreme, 
may  interpose  whenever  it  may  see  fit,  by 
general  or  special  laws,  and  may  prevent  the 
building  of  a  bridge,  or  cause  the  removal 
of  one  already  erected;  Gilman  v.  Philadel- 
phia, 3  Wall.  (U.  S.)  713,  18  L.  Ed.  96;  The 
Passaic  Bridges,  3  Wall.  (U.  S.)  782,  16  L. 
Ed.  799;  Silliman  v.  Bridge  Co.,  4  Blatchf. 
74,  Fed.  Cas.  No.  12,851 ;  Id.,  4  Blatchf.  395, 
Fed.  Cas.  No.  12,852;  The  Clinton  Bridge,  10 
Wall.  (U.  S.)  454,  19  L.  Ed.  969;  or  it  may 
authorize  the  erection  of  a  bridge  over  a 
navigable  river,  although  it  may  partially 
obstruct  the  free  navigation;  People  v.  Kelly, 
76  N.  Y.  475.  So  railroads,  having  become 
the  principal  instruments  of  commerce,  are 
as  much  under  the  control  of  congress  as 
navigable  streams,  and  a  railroad  bridge 
might  be  authorized  by  congress ;  In  re  Clin- 
ton Bridge,  1  Woolw.  150,  Fed.  Cas.  No. 
2,900;  which  has  power  directly  or  through 
a  corporation  created  for  the  purpose  to 
construct  bridges  over  navigable  waters  be- 
tween states,  for  the  purpose  of  interstate 
commerce  by  land  ;  Luxton  v.  Bridge  Co.,  153 
U.  S.  525,  14  Sup.  Ct.  891,  38  L.  Ed.  808 ;  or 
it  may  grant  such  rights  to  an  existing  cor- 
poration; Haeussler  v.  City  of  St.  Louis,  205 


BRIDGE 


307 


BRIDGE 


Mo.  656,  103  S.  W.  1034;  the  bridge  across 
East  River  between  New  York  and  Brooklyn 
is  authorized  by  acts  of  New  York  and  of 
congress  and  cannot  be  declared  to  be  a 
public  nuisance,  even  though  it  may  injuri- 
ously affect  the  business  of  a  warehouseman 
on  the  banks  of  the  river  above  the  bridge; 
Miller  v.  New  York,  109  U.  S.  385,  3  Sup. 
Ct.  228,  27  L.  Ed.  071.  See  also  on  the  sub- 
ject at  large  Millor,  Const.  U.  S.  Lect.  ix. 
For  any  unecessary  interruption  the  pro- 
prietors of  the  bridge  will  be  liable  in  dam- 
ages to  the  persons  specially  injured  there- 
by, or  to  have  the  bridge  abated  as  a  nui- 
sance, by  injunction,  though  not  by  indict- 
ment; such  bridge,  although  authorized  by 
state  laws,  being  in  contravention  of  rights 
secured  by  acts  of  congress  regulating  com- 
merce; Pennsylvania  v.  Bridge  Co.,  13  How. 
(U.  S.)  518,  14  L.  Ed.  249;  1  W.  ft  M.  401; 
Works  v.  Junction  Railroad,  5  McLean  425, 
Fed.  Cas.  No.  18.046;  Columbus  Ins.  Co.  v. 
Bridge  Ass'n,  6  McLean  70,  Fed.  Cas.  No. 
3,046;  Jolly  v.  Drawbridge  Co.,  6  McLean 
237,  Fed.  Cas.  No.  7,441. 

Dedication.  The  dedication  of  bridges  de- 
pends upon  the  same  principles  as  the  dedi- 
cation of  highways,  except  that  their  ac- 
ceptance will  not  be  presumed  from  mere 
use,  until  they  are  proved  to  be  of  public 
utility;  5  Burr.  2594;  State  v.  Town  of  Camp- 
ton,  2  N.  H.  513;  Williams  v.  Cummington, 
18  Pick.  (Mass.)  312;  3  M.  &  S.  526.  See 
Town  of  Dayton  v.  Town  of  Rutland,  84 
111.  279,  25  Am.  Rep.  457;  State  v.  Bridge 
Co.,  22  Kan.  43S;  Highways. 

Repairs  to.  At  common  law,  all  public 
bridges  are  primd  facie  to  be  repaired  by  the 
inhabitants  of  the  county,  without  distinc- 
tion of  foot,  horse,  or  carriage  bridges,  un- 
less they  can  show  that  others  arc  bound 
to  repair  particular  bridges ;  13  East  95 ; 
Bacon,  Abr.  Bridges,  p.  533;  5  Burr.  2594. 
In  this  country,  the  common  law  not  pre- 
vailing, the  duty  of  repair  is,  imposed  by 
statute,  generally,  upon  towns  or  counties; 
State  v.  Town  of  Franklin,  9  Conn.  32;  State 
v.  Campton,  2  N.  H.  513:  Hill  v.  Livingston 
County,  12  N.  Y.  52;  House  v.  Board  of 
Com'rs,  60  Ind.  580,  28  Am.  Rep.  657;  Town- 
ship bf  Newlin  v.  Davis,  77  Pa.  317;  Hedges 
v.  Madison  County,  1  Gilman  (111.)  r>(>7 ;  Bard- 
well  v.  Town  of  Jamaica,  15  Vt.  438;  Saun- 
ders v.  Hathaway,  25  N.  C.  402;  Waterville 
v.  Kennebec  County,  59  Me.  SO;  MeCalla  v. 
Multnomah  County,  3  Or.  424;  Agawam  v. 
Hampden,  130  Mass.  528;  or  chartered  cities; 
Shartle  v.  Minneapolis.  17  Minn.  308  (Gil. 
284);  Holmes  v.  Hamburg,  47  Ta.  34S ;  except 
that  bridges  owned  by  corporations  or  in- 
dividuals are  reparable  by  tlioir  proprietors: 
Williams  v.  Bridge  &  Turnpike  Corp.,  4 
Pick.  (Mass.)  341;  Ward  v.  Turnpike  Co.,  20 
N.  J.  L.  323:  Townsend  v.  Turnpike  Road, 
6  Johns.  (N.  Y.)  90:  Beecher  v.  Ferry  Co.,  24 
Conn.  491;  and  that  where  the  necessity 
for  a  bridge  is  created  by  the  act  of  an  in- 


dividual or  corporation  in  cutting  a 
ditch,  or  railway  through  a  highway,  It  is 
the  duty  of  the  author  of  such  necessity  to 
make  and  repair  the  bridge;  Perley  I 
ler,  6  Mass.  458,  4  Am.  'Dec.  159;  Dygert  v. 
Schenck,  23  Wend.  (N.  Y.)  446,  35  Am.  Dec. 
575;  Nobles  v.  Langly,  66  N.  C.  287;  Penn- 
sylvania R.  Co.  v:  Borough  of  Irwin,  85  Pa. 
336;  Roberts  v.  Ry.  Co.,  35  Wis.  679.  Where 
a    bridge  is  rebuilt  at  county  .,   but 

over  which  it  has  no  control  or  care  and  on 
which  it  expends  no  money  thereafter,  it 
does  not  become  liable  to  maintain  or  repair 
it;  Delta  Lumber  Co.  v.  Board  of  Auditors 
of  Wayne  County,  71  Mich.  572,  40  N.  w.  l 
The  parties  chargeable  must  constantly  keep 
the  bridge  in  such  repair  as  will  make  it 
safe  and  convenient  for  the  service  for  which 
it  is  required;  Hawk.  PI.  Cr.  c.  77,  s.  1; 
Frankfort  Bridge  Co.  v.  Williams,  9  Dana 
(Ky.)  403,  35  Am.  Dec.  151;  Holley  v.  Turn- 
pike Co.,  1  Aik.  (Vt.)  74 ;  People  v.  Turnpike 
Road.  23  Wend.  (N.  Y.)  254.  See  Town  of 
Grayville  v.  WMtaker,  85  111.  439;  Holmes 
v.  City  of  Hamburg,  47  la.  348 ;  Rapho  Tp.  v. 
Moore,  68  Pa.  408,  8  Am.  Rep.  202 ;  Hicks  v. 
Chaffee,  13  Hun  (N.  Y.)  293;  Abbot  v.  Wol- 
cott,  38  Vt  666. 

Remedies  for  failure  to  repair.  [f  the 
parties  chargeable  with  the  duty  of  repair- 
ing neglect  so  to  do,  they  are  liable  to  in- 
dictment: Hawk.  PI.  Cr.  c.  77.  s.  1;  People 
v.  Dutchess  County,  1  Hill  (N.  Y.)  50;  State 
v.  Canterbury,  28  N.  H.  195;  Com.  v.  New- 
buryport  Bridge.  9  Pick.  (Mass.)  142;  State 
v.  King,  25  N.  C.  411.  It  has  also  been  held 
that  they  may  be  compelled  by  mandamus 
to   repair;  Brander  v.   Chesterfield  Justices, 

5  Call  (Va.)  548.  2  Am.  Dec.  606;  Dinwiddle 
Justices  v.  Chesterfield  Justices,  5  Call  (Va.) 
556;  People  v.  Dutchess  County,  1  Hill  (N. 
Y.)  50;  Nelson  County  Court  v.  Waahl 
County  Court,  14  B.  Monr.  (Ky.)  02;  State 
v.  Freeholders  of  Essex.  23  N.  J.  L.  214. 
But  see  12  A.  &  E.  427 ;  3  Campb.  222 ;  State 
v.  Cloud  County  Com'rs,  39  Kan.  700,  18 
Pac.  952.  If  a  corporation  be  charged  with 
the  duty  by  charter,  they  may  be  proceeded 
against  by  quo  'warranto  for  the  forfeiture 
of  their  franchise;  People  v.  R.  Co..  2.°.  Wend. 
(N.  Y.)  254;  or  by  action  on  the  case  for  dam- 
ages in  favor  of  any  person  specially  injured 
by  reason  of  their  neglect:  Sherwood  v.  West- 
on. IS  Conn.  32:  Townsend  v.  Turnpike  Road, 

6  Johns.  (N.  Y.)  90;  Richardson  v.  Turnpike 
Co.,  6  Vt  406:  Randall  v.  Turnpike,  6  N.  II 
147.  25  Am.  Dec.  458;  Williams  v.  Turnpike. 
I  Pick.  (Mass.)  3 11:  Board  of  Com'rs  of 
Sullivan  County  v.  Sisson,  2  Ind.  App.  311, 
2S  N.  E.  374.     And  a   similar  action  is  given 

itute.  in  many  states,  against  public 
bodies  chargeable  with  repair;  Whipple  v. 
Walpole,  10  N.  H.  130:  Board  of  Com'rs  of 
Allen  County  v.  Creviston,  133  Ind.  39,  32 
N.  E.  735.  A  city  is  liable  to  an  action  for 
damages  caused  by  a  failure  to  maintain  a 
bridge  as   required  by  law;  City  of  Boston 


BRIDGE 


398 


BRIEF 


v.  Crowley,  38  Fed.  202.  In  Georgia  coun- 
ties are  not  liable  for  injuries  from  defects 
in  free  bridges  or  ferries ;  Arline  v.  Laurens 
County,  77  Ga.  249,  2  S.  E.  833. 

Tolls.  The  law  of  travel  upon  bridges  is 
the  same  as  upon  highways,  except  when 
burdened  by  tolls.  The  payment  of  tolls  can 
be  lawfully  enforced  only  at  the  gate  or  toll- 
house ;  State  v.  Dearborn,  15  Me.  402.  Where 
by  the  charter  of  a  bridge  company,  certain 
persons  are  exempted  from  payment,  such 
exemption  is  to  be  liberally  construed;  Cay- 
uga Bridge  Co.  v.  Stout,  7  Cow.  (N.  Y.)  33; 
Salmon  v.  Mallett,  6  N.  C.  372 ;  South  Caro- 
lina R.  Co.  v.  Jones,  4  Rich.  Eq.  (S.  C.)  459. 

Bridges,  when  owned  by  individuals,  are 
real  estate ;  In  re  Meason's  Estate,  4  Watts 
(Pa.)  341;  Arnold  v.  Ruggles,  1  R.  I.  165, 
Hudson  River  Bridge  Co.  v.  Patterson,  74  N. 
Y.  365;  and  also  when  owned  by  the  pub- 
lic; yet  the  freehold  of  the  soil  is  in  its 
original  owner;  Co.  2d  Inst.  705.  The  ma- 
terials of  which  they  are  formed  belong  to 
the  parties  who  furnished  them,  subject  to 
the  public  right  of  passage ;  and*  when  the 
bridge  is  taken  down  or  abandoned  become 
the  property  of  those  who  furnished  them; 
6  East  154  ;  President,  etc.,  of  Turnpike  Road 
Co.  v.  Com'rs  of  Franklin  County,  6  S.  &  R. 
(Pa.)  229. 

A  private  bridge  is  one  erected  for  the  use 
of  one  or  more  private  persons.  Such  a  bridge 
will  not  be  considered  a  public  bridge  although 
it  may  be  occasionally  used  by  the  public ;  12 
East  203:  Thompson  v.  R.  Co.,  3  Sandf.  Ch. 
(N.  Y.)  625 ;  1  Rolle,  Abr.  3GS,  Bridges,  pi.  2 ; 
2  Inst.  701 ;  1  Salk.  359.  The  builder  of  a 
private  bridge  over  a  private  way  is  not  in- 
dictable for  neglect  to  repair,  though  it  be 
generally  used  by  the  public.  See  Proprietors 
of  Charles  River  Bridge  v.  Proprietors  of 
Warren  Bridge,  7  Pick.  (Mass.)  344;  id.,  11 
Pet.  (U.  S.)  539,  9  L.  Ed.  773 ;  People  v.  Coop- 
er, 6  Hill  (N.  Y.)  516. 

As  to  bridges  over  navigable  waters,  see 
that  title. 

See  Commerce;  Ferry. 

BRIEF   (Lat.  brevis,  L.  Fr.  brief e,  short). 

In  Ecclesiastical  Law.  A  papal  rescript 
sealed  with  wax.     See  Bull. 

In  Practice.  A  writ.  It  is  found  in  this 
sense  in  the  ancient  law  authors. 

An  abridged  statement  of  the  party's  case. 

A  trial  brief  properly  and  thoroughly  pre- 
pared should  contain  a  statement  of  the 
names  of  the  parties,  and  of  their  residence 
and  occupation,  the  character  in  which  they 
sue  and  are  sued,  and  wherefore  they  prose- 
cute or  resist  the  action  ;  an  abridgment  of 
all  the  pleadings  ;  a  chronological  and  method- 
ical statement  of  the  facts,  in  plain  language; 
a  summary  of  the  points  or  questions  in  is- 
sue, and  of  the  proof  which  is  to  support 
such  issues,  mentioning  specially  the  names 
of  the  witnesses  by  which  the  facts  are  to  be 
proved,  or,  if  there  be  written  evidence,  an 


abstract  of  such  evidence ;  the  personal  char- 
acter of  the  witnesses,  whether  the  moral 
character  is  good  or  bad,  whether  they  are 
naturally  timid  or  over-zealous,  whether  firm 
or  wavering ;  of  the  evidence  of  the  opposite 
party,  if  known,  and  such  facts  as  are  adapt- 
ed to  oppose,  confute,  or  repel  it. 

This  statement  should  be  perspicuous  and  concise. 
The  object  of  a  brief  is  to  inform  the  person  who 
tries  the  case  of  the  facts  important  for  him  to 
know,  to  present  his  case  properly  where  it  has 
been  prepared  by  another  person— as  is  the  general 
practice  in  England,  and  to  some  extent  in  this 
country — or  as  an  aid  to  the  memory  of  the  person 
trying  a  case  when  he  has  prepared  it  himself. 

A  brief  on  error  or  appeal  is  a  legal  argu- 
ment upon  the  questions  which  the  record 
brings  before  the  appellate  court.  These 
are  written  or  printed  and  vary  somewhat 
according  to  the  purposes  they  are  to  sub- 
serve. 

The  rules  of  most  of  the  appellate  courts 
require  the  filing  of  printed  briefs  for  the 
use  of  the  court  and  opposing  counsel  at  a 
time  designated  for  each  side  before  hearing. 
In  the  rules  of  the  supreme  court  and  cir- 
cuit court  of  appeals  of  the  United  States 
the  brief  is  required  to  contain  a  concise 
statement  of  the  case,  a  specification  of  er- 
rors relied  on,  including  the  substance  of 
evidence,  the  admission  or  rejection  of  which 
is  to  be  reviewed,  or  any  extract  from  a 
charge  excepted  to,  and  a  brief  of  argument 
exhibiting  clearly  the  points  of  law  or  fact 
to  be  discussed,  with  proper  reference  to 
the  record  or  the  authorities  relied  upon. 
When  a  statute  is  cited,  so  much  as  is  relied 
on  should  be  printed  at  length.  Such  a  brief 
will  generally  be  sufficient  to  answer  the  re- 
quirements of  any  of  the  courts  in  the  sev- 
eral states  whose  rules  require  printed  briefs. 

See  Briefmaking  by  Lyle  (Cooley's  ed.). 

BRIEF  OF  TITLE.  An  abridged  and  or- 
derly statement  of  all  matters  affecting  the 
title  to  a  certain  portion  of  real  estate. 

It  should  give  the  effective  parts  of  all  patents, 
deeds,  indentures,  agreements,  records,  and  papers 
relating  to  such  estate,  with  sufficient  fulness  to  dis- 
close their  full  effect,  and  should  mention  incum- 
brances existing  whether  acquired  by  deed  or  use. 
All  the  documents  of  title  should  be  arranged  in 
chronological  order,  noticing  particularly  in  regard 
to  deeds,  the  date,  names  of  parties,  consideration, 
description  of  the  property,  and  covenants.  See  1 
Chit.  Pr.  304,  463 ;  14  Am.  L.  Reg.  N.  S.  529.  See 
Abstract  of  Title. 

BRIG  BOTE  (Sax.).  A  contribution  to  re- 
pair a  bridge.     See  Bote. 

BRINGING    MONEY    INTO    COURT.     The 

act  of  depositing  money  in  the  hands  of  the 
proper  officer  of  the  court  for  the  purpose  of 
satisfying  a  debt  or  duty,  or  of  an  inter- 
pleader.    See  Payment  into  Court. 

BROCAGE.  The  wages  or  commissions 
of  a  broker.  His  occupation  is  also  some- 
times called  brocage. 

BR0CARIUS,  BR0CAT0R.  A  broker;  a 
middle-man  between  buyer  and   seller ;    the 


BROCARIUS,  BROCATOR 


399 


BROKERS 


agent  of  both  transacting  parties.     Used  in  i 
the  old  Scotch  and  English  law.    Bell,  Diet; 
Cowell. 

BROKERAGE.  The  trade  or  occupation  of 
a  broker;  the  commissions  paid  to  a  broker 
for  his  services. 

BROKERS.  Those  who  are  engaged  for 
others  in  the  negotiation  of  contracts  rela- 
tive to  property,  with  the  custody  of  which 
they  have  no  concern,  l'aley,  Agency  13. 
See  Com.  Dig.  Merchant,  C. 

A  broker  is,  for  some  purposes,  treated  as 
the  agent  of  both  parties;  but,  in  the  first 
place,  he  is  deemed  the  agent  only  of  the  per- 
son by  whom  he  is  originally  employed,  and 
does  not  become  the  agent  of  the  other  until 
the  bargain  or  contract  has  been  definitely 
settled,  as  to  the  terms,  between  the  prin- 
cipals, when  he  becomes  the  agent  of  both 
parties  for  the  purpose  of  executing  the 
bought  and  sold  notes;  Evans  v.  Wain,  71  Pa.  ( 
69;  5  B.  &  Aid.  333;  Hinckley  v.  Arey,  27  I 
Me.  362 ;    Woods  v.  Rocchi,  32  La.  Ann.  210. 

A  commission  merchant  differs  from  a  bro- 
ker in  that  he  may  buy  and  sell  in  his  own 
name  without  disclosing  his  principal,  while 
the  broker  can  only  buy  or  sell  in  the  name 
of  his  principal.  A  commission  merchant  j 
has  a  lien  upon  the  goods  for  his  charges, 
advances,  and  commissions,  while  the  broker 
has  no  control  of  the  property  and  is  only 
responsible  for  bad  faith ;  Edwards  v.  Hoef- 
finghoff,  38  Fed.  635. 

One  who  negotiates  a  sale  of  another's 
property  without  having  either  actual  or 
constructive  possession  of  it  is  a  broker  as 
distinguished  from  a  factor ;  J.  M.  Robin- 
son, Norton  &  Co.  v.  Cotton  Factory,  124  Ky. 
435,  99  S.  W.  305,  102  S.  W.  809,  8  L.  R.  A. 
(N.  S.)  474,  14  Ann.  Cas.  802. 

The  authority  of  a  broker  to  bind  his  prin- 
cipal may  by  special  agreement  be  carried 
to  any  extent  that  the  principal  may  choose, 
but  the  customary  authority  of  brokers  is 
for  the  most  part  so  well  settled  as  to  be  a 
constituent  part  of  the  law  merchant ;  Benj. 
Sales  §  273. 

Bill  and  Note  Brokers  negotiate  the  pur- 
chase and  sale  of  bills  of  exchange  and  prom- 
issory notes. 

They  are  paid  a  commission  by  the  seller  of  the 
securities  ;  and  it  is  not  their  custom  to  disclose  the 
names  of  their  principals.  There  is  an  implied  war- 
ranty that  what  they  sell  is  what  they  represent  It 
to  be ;  and  should  a  bill  or  note  sold  by  them  turn 
out  to  be  a  forgery,  they  are  held  to  be  responsible  ; 
but  It  would  appear  that  by  showing  a  payment 
over  to  their  principals,  or  other  special  circum- 
stances attending  the  transaction  proving  that  it 
would  be  inequitable  to  hold  them  responsible,  they 
will  be  discharged;  Edw.  Fact.  &  Bro.  §  10;  Aldrich 
v.  Butts,  5  R.  I.  218;  contra,  Baxter  v.  Duren,  29 
Me.  434,  50  Am.  Dec.  602;  Morrison  v.  Currie,  4 
Duer  (N.  Y.)  79. 

Exchange  Brokers  negotiate  bills  of  ex- 
change drawn  on  foreign  countries,  or  on 
other  places  in  this  country. 

It  is  sometimes  part  of  the  business  of  exchange 
brokers  to  buy  and  sell   uncurrent  bank  notes  and 


gold  and  silver  coins,  as  well  as  drafts  and  checks 
drawn  or  payable  in  other  cities ;  although,  as  they 
do  this  at  their  own  risk  and  for  their  own  profit,  it 
is  difficult  to  see  the  reason  for  calling  them  bro- 
kers. The  term  Is  often  thus  erroneously  applied  to 
all  persons  doing  a  money  business. 

Insurance  Broktrs  procure  insurance,  and 
negotiate  between  insurers  and  Insured. 

AI(  i  chandise  Broktrs  negotiate  the  sale  of 
merchandise    without    having    |  n   or 

control  of  it,  as  factors  have. 

Pawnbrokers  lend   money  in  small  sums, 
on  the  security  of  personal   properl 
ally  at  usurious  rates  of  interest.     They  are 
licensed    by    the    authorities,    and    ex< 
from  the  operation  of  the  usury  laws. 

Real  l.state  Brokers.  Those  who  negoti- 
ate the  sale  or  purchase  of  real  property.  In 
addition  to  the  above  duty  they  sometimes 
procure  loans  on  mortgage  security,  collect 
rents,  and  attend  to  the  leasing  of  houses 
and  lands. 

Ship  Brokers  negotiate  the  purchase  and 
sale  of  ships,  and  the  business  of  freighting 
vessels.  Like  other  brokers,  they  receive  a 
commission  from  the  seller  only. 

Stock  Brokers.  Those  employed  to  buy 
and  sell  stocks  and  bonds  of  incorporated 
companies,  and  government  bonds-. 

In  the  larger  cities,  the  stock  brokers  are  asso- 
ciated together  under  the  name  of  the  Board  of 
Brokers.  This  Board  Is  an  association  admission 
to  membership  in  which  Is  guarded  with  Jealous 
care.  Membership  Is  forfeited  for  default  in  carry- 
ing out  contracts,  and  rules  are  prescribed  for  the 
conduct  of  the  business,  which  are  enforced  on  all 
members.  The  purchases  and  sales  are  made  at 
sessions  of  the  Board,  and  are  all  officially  record- 
ed and  published  by  the  association.  Stock  brokers 
charge  commission  to  both  the  buyers  and  sellers 
of  stocks. 

See  Commissions;  Margin;  Stock  Ex- 
change; Pledge;  Bought  Note;  Principal 
and  Agent;  Real  Estate  Broker. 

See  Story,  Ag.  §  28;  .Malynes,  Lex  Merc. 
143;  Liverm.  Ag. ;  Whart  Ag. ;  Benj.  Sales; 
Lewis,  Stock  Exchange ;  Biddle,  Stock  Bro- 
kers ;  Mechein,  Ag. ;  Gross ;  Walker,  Real 
Est. 

BROTHEL.  A  bawdy-house;  a  common 
habitation   of  prostitutes. 

Such  places  have  always  been  deemed 
common  nuisances  in  the  United  states,  and 
the  keepers  of  them  may  be  fined  and  im- 
prisoned. Till  the  time  of  Henry  VIII.  they 
were  licensed  in  England,  but  that  prince 
suppressed  them.  See  Coke,  2d  Inst.  U".~> ; 
P.  a  why-House.  For  the  history  of  these 
places,  see  Merlin,  Rep.  Mot  Bordel;  Par- 
ent Duchatellet,  De  la  Prostitution  dona  la 
ViUe  de  Paris;  Histoire  de  la  Ligii 
sur  les  Femmes  publiques,  etc.,  par  Sabatier. 

BROTHER.  He  who  is  born  from  the 
same  father  and  mother  with  another,  or 
from  one  of  them  only. 

Brothers  are  of  the  whole  blood  when  they  are 
born  of  the  same  father  and  mother,  and  of  the 
half-blood  when  they  are  the  issue  of  one  of  them 
only.  In  the  civil  law,  when  they  are  the  children 
of    the    same    father    and    mother,    they    are    called 


BROTHER 


400 


BUILDING 


brothers  germain;  when  they  descend  from  the 
same  father  but  not  the  same  mother,  they  are 
consanguine  brothers;  when  they  are  the  issue  of 
the  same  mother,  but  not  the  same  father,  they 
are  uterine  brothers.  A  half-brother  is  one  who  is 
born  of  the  same  father  or  mother,  but  not  of  both ; 
one  born  of  the  same  parents  before  they  were 
married,  a  left-sided  brother;  and  a  bastard  born 
of  the  same  father  or  mother  is  called  a  natural 
brother.  See  Blood  ;  Half-Blood  ;  Line  ;  Merlin, 
Repert.  Frere ;  Diet,  de  Jurisp.  Frere;  Code  3. 
28.  27  ;  Nov.  84,  praef.  ;  Dane,  Abr.  Index  ;  44  U.  C. 
Q.  B.  536  ;  Gardner  v.  Collins,  3  Mas.  398,  Fed.  Cas. 
No.  5,223  ;  id.,  2  Pet.  (U.  S.)  58,  7  L.  Ed.  347  ;  Wheel- 
er v.  Clutterbrick,  52  N.   Y.  67. 

To  obtain  a  conviction  of  the  crime  of  in- 
cest, under  a  statute  forbidding  the  mar- 
riage of  brother  and  sister,  it  is  not  neces- 
sary to  show  legitimacy  of  birth;  State  v. 
Schaunhurst,  34  la.  547. 

BROTHERHOOD  AND  GUESTLING, 
COURT  OF.  The  Brotherhood  was  a  con- 
ference of  seven  towns  (i.  e.,  the  Cinque 
Ports  and  two  other  ancient  towns)  as  to 
the  provision  of  the  necessary  ships  and  as  to 
arranging  for  the  herring  sale  at  Yarmouth, 
and  for  other  such  purposes.  The  Guestling 
was  rather  a  wider  meeting,  at  which  not 
merely  the  Brotherhood,  but  deputies  from 
other  associated  towns  were  present  for  the 
discussion  of  subjects  of  common  interest  to 
all. 

BROTHER-IN-LAW.  The  brother  of  a 
wife,  or  the  husband  of  a  sister. 

There  is  no  relationship,  in  the  former  case,  be- 
tween the  husband  and  the  brother-in-law,  nor  in 
the  latter,  between  the  brother  and  the  husband  of 
the  sister:  there  is  only  affinity  between  them. 
See  Vaugh.   302,  329. 

BRUISE.     In    Medical     Jurisprudence.      An 

injury  done  with  violence  to  the  person,  with- 
out breaking  the  skin :  it  is  nearly  synony- 
mous with  contusion  (q.  v.).  1  Ch.  Pr.  38. 
See  4  C.  &  P.  381,  487,  558. 

BUBBLE  ACT.  The  name  given  to  the 
statute  6  Geo.  I.  c.  18  (1719),  intended  "for 
restraining  several  extravagant  and  unwar- 
rantable practices  therein  mentioned."  See 
2  P.  Wms.  219. 

BUCKET  SHOP.  An  establishment  nom- 
inally for  the  transaction  -of  a  stock  exchange 
business,  or  business  of  a  similar  character, 
Out  really  for  the  registration  of  bets  or 
wagers,  usually  for  small  amounts,  on  the 
rise  and  fall  of  the  prices  of  stocks,  grain, 
oil,  etc.,  there  being  no  transfer  or  delivery 
of  the  stock  or  commodities  nominally  dealt 
in.  State  v.  McGinnis,  138  N.  C.  724,  51  S. 
E.  50,  adopting  definition  of  Cent.  Diet.; 
Gatewood  v.  North  Carolina,  203  U.  S.  531, 
27  Sup.  Ct.  167,  51  L.  Ed.  305.  Ostensible 
brokerage  offices  in  which  transactions  in 
stocks  and  commodities  are  closed  by  the 
payment  of  gains  or  losses,  as  determined  by 
price  quotations.  No  property  is  bought  or 
sold.    Report  to  Gov.  Hughes  of  N.  Y.,  1909. 

See  Gambling. 

BUGGERY.     See  Sodomy. 


BUILDING.  An  edifice,  erected  by  art, 
and  fixed  upon  or  over  the  soil,  composed  of 
brick,  marble,  wood,  or  other  proper  sub- 
stance, connected  together,  and  designed  for 
use  in  the  position  in  which  it  is  so  fixed. 
Every  building  is  an  accessory  to  the  soil, 
and  is  therefore  real  estate;  it  belongs  to 
the  owner  of  the  soil ;  Cruise,  Dig.  tit.  1,  s. 
46;  but  a  building  placed  on  another's  land 
by  his  permission  is  the  personal  estate  of 
the  builder ;   2  Bla.  Com.  17. 

BUILDING      ASSOCIATIONS.       Co-opera- 
tive associations,  usually  incorporated,  estab- 
lished for  the  purpose  of  accumulating  and 
loaning  money  to  their  members  upon  real 
estate  security.     It  is  usual  for  the  members 
to  make  monthly  payments  upon  each  share 
of  stock,  and  for  those  who  borrow  money 
from  the  association  to  make  such  payments 
in  addition  to  interest  on  the  sum  borrowed. 
When  the  stock,  by  successive  payments  and 
the   accumulation    of   interest,   has    reached 
par,  the  mortgages  given  by  borrowing  mem- 
bers are   cancelled,   and   the  non-borrowing 
members   receive   in  cash  the   par   of   their 
stock.     See  Endlich,   Build.   Assoc;    Wrigl. 
Build.  Assoc.    The  general  design  of  such  an 
association  is  the   accumulation  from   fixed 
periodical  contributions   of  its   shareholders 
and  from  the  profits  derived  from  the  invest- 
ment of  the  same,  of  a  fund  to  be  applied 
from  time  to   time  in  accommodating  such 
shareholders  with  loans,  to  enable  them  to 
acquire  and  improve  real  estate  by  building 
thereon ;    the  conditions   of   the  loan  being 
such  that  the  liability  incurred  therefor  may 
be  gradually  extinguished  by  the  borrower's 
periodical   contributions   upon   his   stock,   so 
that  when  the  latter  shall  be  fully  paid  up 
the  amount  paid  shall  be  sufficient  to  cancel 
the  indebtedness;    State  v.   Loan  Ass'n,  45 
Minn.  154,  47  N.  W.  540,  10  L.  R.  A.  752.     It 
differs  from  an  ordinary  corporation  among 
other  ways  in  the  fact  that  in  an  ordinary 
business  corporation  stock  is  subscribed  and 
either  paid  for  at  the  time,  or  if  partly  paid 
for  it  becomes  the  property  of  the  subscriber 
subject  to  future  calls,  while  in  a  building 
association   the  stock  subscriber  is  not  the 
out  and  out  owner  of  the  stock  from  the  be- 
ginning.    He  pays  thereon   a  monthly   pay- 
ment,  and,    when   these   monthly   payments, 
with  his  increment  of  gains  accrued,  equal 
the  par  value  of  the  share  of  stock  he  is  en- 
titled  to   receive  that  amount.     If,   in    the 
meantime,  he  has  borrowed  on  his  stock,  it 
by  pledge  or  operation  of  the  loan  remains 
the  property  or  quasi  property  of  the  corpo- 
ration, and  the  loan  is  returned  by  the  pay- 
ment of  interest  and  stock  dues,  penalties, 
etc.,  the  repayment  of  the  loan  culminating 
at  the  same  time  the  stock  itself  matures,  at 
which  time,  in  theory,  the  corporation,  or  a 
given  series  or  issue  of  its  stock,   is  liqui- 
dated— the  non-borrowing  stockholders  have 
their  stock  redeemed  and  the  borrowers  have 


BUILDING  ASSOCIATIONS 


401 


BUILDING  ASSOCIATIONS 


their  loans  cancelled ;  Cobe  v.  Lovan,  193 
Mo.  235,  92  S.  W.  93,  4  L.  R.  A.  (N.  S.)  439, 
112  Am.  St.  Rep.  480. 

That  it  has  power  to  borrow  money  to  pay 
Its  stockholders  when  their  stock  reaches  its 
par  value  is  held  in  North  Hudson  Mut.  Bldg. 
&  Loan  Ass'n  v.  Bank,  79  Wis.  31,  47  X.  W. 
300,  11  L.  R.  A.  845 ;  that  such  power  is  im- 
plied when  no  statute  denies  it  is  held  in 
Bohn  v.  Bldg.  &  Loan  Ass'n,  135  la.  140.  112 
N.  W.  199,  124  Am.  St.  Rep.  263;  Marion 
Trust  Co.  v.  Inv.  Co.,  27  Ind.  App.  451,  61 
N.  E.  688,  87  Am.  St.  Rep.  257.  Other  cases 
hold  that  a  loan  for  the  purpose  of  paying 
withdrawing  members  is  ultra  vires  and  void 
in  the  absence  of  an  express  borrowing  pow- 
er in  the  association ;  22  Ch.  D.  61 ;  Stand- 
ard Savings  &  Loan  Ass'n  v.  Aldrich,  163 
Fed.  216,  89  C.  C.  A.  646,  20  L.  R.  A.  (N.  S.) 
393. 

It  has  no  power  to  transfer  to  another  as- 
sociation the  contract  of  a  borrowing  stock- 
holder ;  Thomp.  Bldg.  &  Loan  Ass'n  (2d  ed.) 
286 ;  Barton  v.  Loan  &  Bldg.  Ass'n,  114  Ind. 
226,  16  N.  E.  486,  5  Am.  St.  Rep.  608 ;  Love- 
lace v.  Pratt,  163  Mo.  70,  63  S.  W.  383.  That 
it  has  such  power  in  the  absence  of  statutory 
prohibitions,  is  held  in  Bowlby  v.  Kline,  28 
Ind.  App.  659,  63  N.  E.  723 ;  Quein  v.  Smith, 
108  Pa.  325. 

In  case  of  an  advance  by  one  loan  associa- 
tion to  take  up  a  loan  in  another  upon  stock 
which  has  partly  matured,  the  net  amount  of 
the  loan  is  the  sum  still  due,  and  not  the 
face  value  of  the  loan,  although  the  latter 
amount  is  charged  on  the  books  of  the  asso- 
ciation and  a  credit  as  of  an  advance  pay- 
ment thereon  given  for  the  withdrawal  value 
of  the  stock  in  the  other  association ;  But- 
son  v.  Sav.  &  Trust  Co.,  129  la.  370,  105  N. 
W.  645,  4  L.  R.  A.  (N.  S.)  98,  113  Am.  St. 
Rep.  463. 

One  loaning  money  to  a  building  associa- 
tion to  satisfy  the  claims  of  withdrawing 
members,  taking  an  assignment  of  mortgages 
of  borrowing  members  as  security,  cannot 
hold  the  mortgages  against  the  claims  of  a 
receiver  of  the  association,  since  he  is  charg- 
ed with  knowledge  of  the  want  of  power  of 
the  association  to  make  the  assignment ; 
Staudard  Savings  &  Loan  Ass'n  v.  Aldrich, 
163  Fed.  216,  S9  C.  C.  A.  646,  20  L.  R.  A.  (N. 
S.)  393.  A  statute  authorizing  such  associa- 
tions to  retire  stock  out  of  a  portion  of  its 
current  receipts,  was  held  not  to  confer  any 
power  to  give  its  notes  to  retiring  stockhold- 
ers; Appeal  of  Powell,  93  Mo.  App.  296. 
Such  an  association  may  stipulate  in  a  con- 
tract of  loan  for  the  payment  of  a  monthly 
premium  limited  to  a  certain  number  of  pay- 
ments; Burkheimer  v.  Bldg.  &  Loan  Ass'n, 
59  W.  Va.  209,  53  S.  E.  372,  4  L.  R.  A.  (N.  S.) 
1047. 

When  its  articles   have  been  amended   to 
conform    to    a    statute   providing    for   lower 
rates   of   interest,    the   association   may   not 
Bouv.— 26 


deny  its  benefits  to  members  who  have  bor- 
rowed before  the  act  was  passed  on  the 
ground  that  the  provisions  of  the  amended 
articles'  do  not  refer  to  pre-existing  con- 
tracts ;  St.  John  v.  Bldg.  &  Loan  Ass'n,  136 
la.  448,  113  N.  W.  863,  15  L.  R.  A.  (N.  S.) 
503. 

An  absolute  promise  to  mature  its  shares 
in  a  specified  time  is  not  changed  to  a  con- 
ditional one  dependent  upon  the  success  of 
the  enterprise,  by  the  shareholder's  a 
ment,  as  expressed  in  the  certificate  of  stock, 
to  pay  a  specified  monthly  installment  on 
each  share  until  it  matures  or  is  withdrawn, 
and  the  provision  of  the  by-laws  accepted  by 
him,  that  such  installments  shall  be  paid  un- 
til each  share  is  fully  paid;  Eastern  Build- 
ing &  Loan  Ass'n  v.  Williamson,  189  U.  S. 
122,  23  Sup.  Ct.  527,  47  L.  Ed.  735,  following 
Vought  v.  Building  &  Loan  Ass'n,  172  N.  Y. 
508,  65  N.  E.  496,  92  Am.  St.  Rep.  761,  and 
affirming  Williamson  v.  Building  &  Loan 
Ass'n,  62  S.  C.  390,  38  S.  E.  616,  100S. 

The  ground  that  such  a  promise  on  the 
part  of  the  association  was  ultra  vires  was 
held  not  available  where  the  shareholder 
had  fully  performed  his  part  of  the  contract ; 
Assets  Realization  Co.  v.  Heiden,  215  111.  9, 
74  N.  E.  56;  Eastern  Building  &  Loan  Ass'n 
v.  Williamson,  189  U.  S.  122,  23  Sup.  Ct.  527, 
47  L.  Ed.  735 ;  Floyd-Jones  v.  Anderson,  30 
Mont  351,  76  Pac.  751 ;  Leahy  v.  Building  & 
Loan  Ass'n,  100  Wis.  555,  76  N.  W.  625,  69 
Am.  St  Rep.  945;  Hammerquist  v.  Savings 
&  Loan  Co.,  15  S.  D.  70,  S7  N.  W.  524. 

But  it  has  been  held,  where  authority  to 
issue  stock  having  a  fixed  period  of  maturity 
was  not  expressly  given  by  statute  or  by  the 
articles  or  by-laws  of  the  association,  tht. 
ground  of  ultra  vires  may  be  set  up  by  the 
association;  O'Malley  v.  Building,  Loan  & 
Savings  Ass'n,  92  Hun  572,  36  N.  Y.  Supp. 
1016;  McKean  v.  Building  &  Loan  Ass'n,  10 
Pa.  Dist  R.  197 ;  and  to  the  same  effect 
King  v.  Building,  Loan  &  Inv.  Union,  170 
111.  135,  48  N.  E.  677 ;  Schell  v.  Loan  &  Inv. 
Ass'n,  150  Mo.  103,  51  S.  W.  406. 

A  stockholder  who  actively  or  passively 
concurs  in  the  management  of  the  affairs  of 
a  building  association  must  bear  his  share  of 
the  losses  during  his  membership  resulting 
from  such  management ;  Browne  v.  Sanders, 
20  D.  C.  455. 

In  considering  the  question  of  usury  in  a 
loan  from  a  building  association,  payments 
made  by  the  borrower  as  dues  are  not  to  be 
considered  as  interest,  as  such  payments  are 
made  in  order  to  acquire  an  interest  in  the 
property  of  the  association  and  not  for  the 
use  of  money;  Tilley  v.  Building  &  Loan 
Ass'n,  ."!_'  led.  618;  a  premium  bid  for  a 
loan  cannot  be  allowed  as  a  cloak  for  usury ; 
International  Building  &  Loan  Ass'n  v.  Bier- 
ing,  86  Tex.  476,  25  S.  W.  622,  26  S.  W.  39. 

Fines  imposed  for  default  iu  payment  of 
dues  and  interest  cannot  be  collected  by  fore- 


BUILDING  ASSOCIATIONS 


402 


BUILDING  RESTRICTION 


closure  of  a  mortgage  given  to  secure  pay- 
ment of  an  amount  borrowed,  unless  it  has 
been  agreed  that  this  may  be  done;  Bowen 
v.  Building  &  Loan  Ass'n,  51  N.  J.  Eq.  272, 
28  Atl.  67. 

BUILDING  CONTRACT.  A  contract  to 
erect  a  building  subject  to  the  acceptance  or 
rejection  of  the  architect  and  in  strict  ac- 
cordance with  the  plans,  does  not  make  the 
architect's  acceptance  conclusive  (there  being 
no  clause  to  that  effect) ;  Mercantile  Trust 
Co.  v.  Hensey,  205  U.  S.  298,  27  Sup.  Ct,  535, 
51  L.  Ed.  811,  10  Ann.  Cas.  572. 

BUILDING  PERMIT.  A  city,  when  au- 
thorized by  its  charter  to  control  the  con- 
struction and  repair  of  all  houses,  may  re- 
quire a  permit  from  it  as  a  prerequisite  to 
the  erection  of  a  building;  Fellows  v.  City 
of  Charleston,  62  W.  Va.  665,  59  S.  E.  623, 
13  L.  R.  A.  (N.  S.)  737,  125  Am.  St.  Rep.  990, 
13  Ann.  Cas.  1185 ;  Commissioners  of  Easton 
v.  Covey,  74  Md.  262,  22  Atl.  266.  But  it 
cannot  require  buildings  to  conform  in  size, 
appearance,  etc.,  to  other  buildings  in  the 
same  neighborhood ;  Bostock  v.  Sams,  95  Md. 
400,  52  Atl.  665,  59  L.  R.  A.  282,  93  Am.  St. 
Rep.  394. 

BUILDING  RESTRICTION.  When  one 
makes  deeds  of  different  portions  of  a  tract 
of  land,  each  containing  the  same  restriction 
upon  the  lot  conveyed  which  is  imposed  as  a 
part  of  a  general  plan  for  the  benefit  of  the 
several  lots,  such  a  restriction  not  only  im- 
poses a  liability  upon  the  grantee  of  each  lot 
as  between  him  and  the  grantor,  but  it  gives 
him  a  right  in  the  nature  of  an  easement 
which  will  be  enforced  in  equity  against  the 
grantee  of  one  of  the  other  lots,  although 
there  is  no  direct  contractual  relation  be- 
tween the  two.  Through  the  common  char- 
acter of  the  deeds,  the  grantees  are  given  an 
interest  in  a  contractual  stipulation  which  is 
used  for  their  common  benefit ;  Evans  v. 
Foss,  194  Mass.  513,  80  N.  E.  5S7,  9  L.  R.  A. 
(N.  S.)  1039,  11  Ann.  Cas.  171,  where  the 
erection  of  a  garage  was  held  to  be  within  a 
restriction  forbidding  the  erection  on  the 
property  of  any  building  for  shops  or  any 
other  business  objectionable  to  the  neighbor- 
hood for  dwelling  houses.  The  maintenance 
of  a  hospital  was  enjoined  where  a  covenant 
provided  that  the  premises  should  not  be 
leased  for  any  noisome,  obnoxious  or  offen- 
sive trade  or  business ;  58  L.  J.  Ch.  N.  S.  83 ; 
48  id.  339.  An  undertaker's  establishment 
where  bodies  were  received,  kept  and  em- 
balmed, funeral  services  and  autopsies  were 
held,  and  bodies  dissected,  was  enjoined 
where  the  restriction  provided  that  no  trade 
or  business  offensive  to  the  neighborhood 
should  be  carried  on ;  Rowland  v.  Miller,  139 
N.  Y.  93,  34  N.  E.  765,  22  L.  R.  A.  182.  The 
location  of  a  coal  yard  which  received  and 
broke  up  coal  and  separated  it  from  the  dust 
was  enjoined  under  such  a  restrictive  cove- 


nant ;  Barron  v.  Richard,  3  Edw.  Ch.  (N.  Y.) 
96 ;  as  was  the  location  of  a  large  school  for 
boys;    68  L.  J.  Ch.  8. 

But  such  a  covenant  is  held  not,  as  a  mat- 
ter of  law,  to  be  violated  by  the  erection  of 
a  three-story  building  with  stores  on  the  first 
floor  and  flats  or  apartments  above;  Hurley 
v.  Brown,  44  App.  Div.  4S0,  60  N.  Y.  Supp. 
846;  or  by  one  for  the  sale  of  groceries  and 
provisions;  Tobey  v.  Moore,  130  Mass.  448; 
Evans  v.  Foss,  194  Mass.  513,  80  N.  E.  587,  9 
L.  R.  A.  (N.  S.)  1039,  11  Ann.  Cas.  171.  Gen- 
erally, such  restrictions  will  be  construed  in 
favor  of  the  free  use  of  property ;  James  v. 
Irvine,  141  Mich.  376,  104  N.  W.  631. 

That  a  house  shall  be  set  back  a  certain 
distance  and  shall  correspond  with  the  gran- 
tor's adjoining  house  is  the  benefit  of  the 
land,  and  not  a  personal  covenant:  its  life  is 
limited  to  the  life  of  the  first  house  erected 
on  the  granted  premises ;  Welch  v.  Austin, 
187  Mass.  256,  72  N.  E.  972,  68  L.  R.  A.  189. 

See  Easement  ;  Municipal  Corporation  ; 
Police  Power. 

The  state  may  limit  the  height  of  buildings 
to  be  erected  in  cities ;  Welch  v.  Swasey,  193 
Mass.  364,  79  N.  E.  745,  23  L.  R.  A.  (N.  S.) 
1160,  118  Am.  St.  Rep.  523;  Cochran  v.  Pres- 
ton, 108  Md.  220,  70  Atl.  113,  23  L.  R.  A.  (N. 
S.)  1163,  129  Am.  St.  Rep.  432,  15  Ann.  Cas. 
1048.  It  may  permit  them  to  be  higher  in 
the  sections  where  there  is  a  demand  for  of- 
fice space  than  in  the  residential  portions, 
though  the  streets  in  the  former  may  be  nar- 
rower than  in  the  latter;  Welch  v.  Swasey, 
193  Mass.  364,  79  N.  E.  745,  23  L.  R.  A.  (N. 
S.)  1160,  118  Am.  St.  Rep.  523.  It  may  re- 
strict the  height  of  buildings  adjacent  to  a 
certain  square  in  a  city,  compensation  being 
given  to  persons  injured  in  their  property 
rights ;  Attorney  General  v.  Williams,  -174 
Mass.  476,  55  N.  E.  77,  affirmed  in  Williams 
v.  Parker,  188  U.  S.  491,  23  Sup.  Ct.  440,  47 
L.  Ed.  559,  where  the  statute  was  held  not 
to  be  in  conflict  with  the  federal  constitution. 

A  city  may  forbid  the  erection  of  any 
frame  structure  within  the  "fire  limits" ; 
O'Bryan  v.  Apartment  Co.,  128  Ky.  282,  108 
S.  W.  257,  15  L.  R.  A.  (N.  S.)  419 ;  may  re- 
quire the  removal  of  a  wooden  building  with- 
in such  limits ;  Davison  v.  City  of  Walla 
Walla,  52  Wash.  453,  100  Pac.  981,  21  L.  R. 
A.  (N.  S.)  454,  132  Am.  St.  Rep.  983;  may 
require  buildings  used  for  certain  purposes 
to  be  equipped  with  fire  escapes;  Arnold  v. 
Starch  Co.,  194  N.  Y.  42,  86  N.  E.  815,  21  L. 
R.  A.  (N.  S.)  178;  may  refuse  its  consent  to 
the  repair  of  a  wooden  building  within  the 
fire  limits  which  has  been  damaged  by  fire ; 
Brady  v.  Ins.  Co.,  11  Mich.  425.  The  owner 
thereof  in  such  case,  it  is  said,  must  first  be 
given  opportunity  to  remove  the  building; 
Village  of  Louisville  v.  Webster,  108  111.  418. 
It  may  destroy  a  building  infected  with 
smallpox,  as  a  nuisance ;  Sings  v.  City  of 
Joliet,  237  111.  300,  86  N.  E.  663,  22  L.  R.  A. 


BUILDING  RESTRICTION 


403 


BUNDLE 


(N.  S.)  1128,  127  Am.  St.  Rep.  323.  It  may 
prevent  the  moving  of  a  wooden  building  into 
the  city  limits  from  a  point  outside ;  Red 
Lake  Falls  Milling  Co.  v.  City  of  Thief  River 
Falls,  109  Minn.  52,  122  N.  W.  872,  24  L.  R. 
A.  (N.  S.)  456,  IS  Ann.  Cas.  182;  Griffin  v. 
City  of  Gloversville,  67  App.  Div.  403,  73  N. 
Y.  Supp.  684;  Kaufman  v.  Stein,  l.'JS  Ind.  49, 
37  N.  E.  333,  46  Am.  St.  Rep.  368. 

BULK.  Merchandise  which  is  neither 
counted,  weighed,  nor  measured. 

A  sale  by  bulk  is  a  sale  of  a  quantity  of 
goods  such  as  they  are,  without  measuring, 
counting,  or  weighing.  La.  Civ.  Code,  art. 
3522,  n.  6. 

As  to  contracts  forbidding  "sales  in  bulk" 
of  a  tradesman's  entire  stock,  see  Sales. 

BULL  (Lat.  bulla,  a  stud  or  boss).  A  let- 
ter from  the  pope  of  Rome,  written  on  parch- 
ment, to  which  is  attached  a  metal  seal  im- 
pressed with  the  images  of  Saint  Peter  and 
Saint  Paul,  on  either  side  of  a  cross.  On  the 
other  side  of  the  seal  is  the  name  of  the 
pope,  with  the  year  of  his  pontificate.  See 
Seal  ;    Bulls. 

There  are  three  kinds  of  apostolical  rescripts — 
the  brief,  the  signature,  and  the  bull;  which  last  is 
most  commonly  used  in  legal  matters.  Bulls  may 
be  compared  to  the  edicts  and  letters-patents  of 
secular  princes:  when  the  bull  grants  a  favor,  the 
seal  is  attached  by  means  of  silken  strings ;  and 
when  to  direct  execution  to  be  performed,  with 
flax  cords.  Bulls  are  written  in  Latin,  in  a  round 
and  Gothic  hand.  Ayliffe,  Par.  132;  Ayliffe,  Pand. 
21 ;    Merlin,  Repert. 

BULL/E.  Metal  seals  used,  chiefly  in  the 
southern  countries  of  Europe,  in  place  of 
wax,  which  would  be  affected  by  heat ;  also 
used  in  other  parts  of  Europe  and  even  in 
England.  Usually  of  lead,  but  sometimes  of 
gold.    Encycl.  Br. 

BULLETIN.  An  official  account  of  public 
transactions  in  matters  of  importance.  In 
France,  it  is  the  registry  of  the  laws. 

BULLION.  The  term  bullion  is  common- 
ly applied  to  uncoined  gold  and  silver,  in  the 
mass  or  lump. 

BULLION  FUND.  A  deposit  of  public 
money  at  the  mint  and  its  branches.  The 
object  of  this  fund  is  to  enable  the  mint  to 
make  returns  of  coins  to  private  depositors 
of  bullion  without  waiting  until  such  bullion 
is  actually  coined.  If  the  bullion  fund  is  suf- 
ficiently large,  depositors  are  paid  as  soon  as 
their  bullion  is  melted  and  assayed  and  the 
value  ascertained.  It  thus  enables  the  mint 
to  have  a  stock  of  coin  on  hand  to  pay  de- 
positors in  advance.  Such  bullion  becomes 
the  property  of  the  government,  and,  being 
subsequently  coined,  is  available  as  a  means 
of  prompt  payment  to  other  depositors ;  Act 
of  June  22,  1S74,  Rev.  Stat.  U.  S.  §  3545. 

BUNDLE.  To  sleep  on  the  same  bed  with- 
out undressing;  applied  to  the  custom  of  a 
man  and  woman,  especially  lovers,  thus 
sleeping.     A.  &  E.  Ency.     See  Seagar  v.  Slig- 


erland,  2  OaL  (N.  Y.)  219;  Hollis  v.  W< 
Clark  (Pa.)  169. 

BUOY.     A  piece  of  wood,  or  an  emptg 
rel,  or  other  iiiin_r.  moored   at  a   particular 
place  and  floating  on  the  wafo  w  the 

place  where  it  is  shallow,  to  mark  the  chan- 
nel, or  to  indicate  the  danger  there  is  to 
navigation. 

The  act  of  congress  approved  the  28th  September, 
1850,  enacts  that  all  buoys  shall  be. so  colored  and 
lettered  that  in  passing  up  the  coast  or  up  a  harbor, 
red  buoys  with  even  numbers  shall  be  on  the  right, 
black  buoys  with  uneven  numbers  on  the  left  aud 
with  red  and  black  stripes  on  either  hand.  In 
channels  with  alternate  black  and  white  stripes. 

BURDEN  OF  PROOF.  The  duty  of  prov- 
ing the  facts  in  dispute  on  an  issue  raised 
between  the  parties  in  a  cause.  See  People 
v.  McCann,  16  N.  Y.  66,  69  Am.  Dec.  64-.  1.  . 
parte  Walls,  64  Ind.  461;  Wilder  v.  C 
100  Mass.  4S7. 

Burden  of  proof  is  to  be  distinguished  from  prima 
facie  evidence  or  a  prima  facie  case.  Generally, 
when  the  latter  is  shown,  the  duty  imposed  upon  the 
party  having  the  burden  will  be  satisfied  ;  but  it  is 
not  necessarily  so ;  Delano  v.  Bartlett,  6  Cush. 
(Mass.)  364 ;  Tourtellot  v.  Rosebrook,  11  Mete. 
(Mass.)  460;  Swallow  v.  State,  22  Ala.  20;  Doty  v. 
State,  7  Blackf.  (Ind.)  427;  Com.  v.  McKie,  1  Gray 
(Mass.)  61,  61  Am.  Dec.  410. 

The  burden  of  proof  lies  upon  him  who 
substantially  asserts  the  affirmative  of  the 
issue;  1  Greenl.  Ev.  §  74;  3  M.  &  W.  510; 
but  where  the  plaintiff  grounds  his  case  on 
negative  allegations,  he  has  the  burden;  1 
C.  &  P.  220;  5  B.  &  C.  758;  1  Greenl.  F.v.  | 
81;  Daugherty  v.  Deardorf,  107  Ind.  527, 
8  N.  E.  296.  As  a  general  rule  the  burden 
of  proof  is  upon  the  plaintiff  to  establish 
the  facts  alleged  as  the  cause  of  action ; 
Read  v.  Buffum,  79  Cal.  77,  21  Pae.  555,  12 
Am.  St.  Rep.  131;  Stoddard  v.  Rowe,  74  la. 
670,  39  N.  W.  84;  Woolsey  V.  Jones,  S4  Ala. 
88,  4  South.  190;  Brimberry  v.  R.  Co.,  7S 
Ga.  641,  3  S.  E.  274;  but  in  certain  forms  of 
action  the  burden  may  by  the  pleadings  be 
shifted  to  the  defendant. 

In  criminal  cases,  on  the  twofold  ground 
that  a  prosecutor  must  prove  every  fact 
necessary  to  substantiate  his  charge  againsl 
a  prisoner,  and  that  the  law  will  presume 
innocence  in  the  absence  of  convincing  evi- 
dence to  the  contrary,  the  burden  of  proof, 
unless  shifted  by  legislative  Interference, 
will  fall  on  the  prosecuting  party,  though  in 
order  to  convict  he  must  necessarily  have 
recourse  to  negative  evidence;  1  Tayl.  Ev. 
Sth  ed.  S5  113,  371;  V.  S.  v.  Gooding,  12 
Wheat.  (U.  S.)  460,  6  L.  Ed.  693.  The  burden 
of  proof  is  throughout  on  the  government, 
to  make  out  the  whole  case:  and  when  a 
prima  facie  case  is  established,  the  burden 
of  proof  is  not  thereby  shifted  upon  the  de- 
fendant, and  he  is  not  bound  to  restore  him- 
self to  that  presumption  of  innocence  in 
which  he  was  at  the  commencement  of  the 
trial:  State  v.  Middleham.  62  la.  150,  17 
N.  W.  446:  Wharton  v.  State.  73  Ala.  366; 
People  v.  Fairchild,  4S   Mich.  31,  11  N.  W. 


BURDEN  OF  FHOOF 


404 


BURGLARIOUSLY 


773.     As  to  the  burden  of  proof  where  the 
defence  of  insanity  is  set  up,  see  Insanity. 
BUREAU    (Fr.).     A  place  where  business 
is  transacted. 

In  the  classification  of  the  ministerial  officers  of 
government,  and  the  distribution  of  duties  among 
them,  a  bureau  is  understood  to  be  a  division  of 
one  of  the  great  departments  of  which  the  secre- 
taries or  chief  officers  constitute  the  cabinet. 

BURGAGE.  A  species  of  tenure,  describ- 
ed by  old  law-writers  as  but  tenure  in  soc- 
age, where  the  king  or  other  person  was  lord 
of  an  ancient  borough,  in  which  the  tene- 
ments were  held  by  a  rent  certain. 

Such  boroughs  had,  and  still  have,  certain 
peculiar  customs  connected  with  the  tenure, 
which  distinguished  it  from  the  ordinary 
socage  tenure.  These  customs  are  known  by 
the  name  of  Borough-English;  and  they  alter 
the  law  in  respect  of  descent,  as  well  as  of 
dower,  and  the  power  of  devising.  By  it  the 
youngest  son  inherits  the  lands  of  which  his 
father  died  seised.  A  widow,  in  some  bor- 
oughs, has  dower  in  respect  to  all  the  tene- 
ments which  were  her  husbaud's;  in  others, 
she  has  a  moiety  of  her  husband's  lands  so 
long  as  she  remains  unmarried ;  and  with 
respect,  to  devises,  in  some  places,  such 
lands  only  can  be  devised  as  were  acquired 
by  purchase;  in  others,  estates  can  only  be 
devised  for  life ;  2  Bla.  Com.  82 ;  Glanv.  b.  7, 
c.  3;  Litt.  §  162;  Cro.  Car.  411;  1  P.  Wms. 
63;  Fitzh.  N.  B.  150;  Cro.  Eliz.  415. 

The  tenure  at  a  money  rent  would  become 
the  typical  tenure  of  a  burgage  tenement; 
Maitl.  Domesday  &  Beyond  198. 

BURGATOR.  One  who  breaks  into  houses 
or  enclosed  places,  as  distinguished  from  one 
who  committed  robbery  in  the  open  country. 
Spelman,  Gloss.  Burglaria. 

BURGESS.  A  magistrate  of  a  borough. 
Blount.  An  officer  who  discharges  the  same 
duties  for  a  borough  that  a  mayor  does  for 
a  city.  The  word  is  used  in  this  sense  in 
Pennsylvania. 

An  inhabitant  of  a  town;  a  freeman;  one 
legally  admitted  as  a  member  of  a  corpora- 
tion. Spelman,  Gloss.  A  qualified  voter.  3 
Steph.  Com.  192.  A  representative  in  parlia- 
ment of  a  town  or  borough.    1  Bla.  Com.  174. 

BURGESS  ROLL.  A  list  of  those  entitled 
to  new  rights  under  the  act  of  5  &  6  Will. 
IV.  c.  74;   3  Steph.  Com.  34,  38. 

BURGHMOTE.  In  Saxon  Law.  Acourtof 
justice  held  twice  a  year,  or  oftener,  in  a 
burg.  All  the  thanes  and  free  owners  above 
the  rank  of  ceorls  were  bound  to  attend 
without  summons.  The  bishop  or  lord  held 
the  court.     Spence,  Eq.  Jur. 

BURGLAR.     One   who   commits    burglary. 

He  that  by  night  breaketh  and  entereth 
into  the  dwelling-house  of  another.  Wil- 
mot,  Burgl.  3. 

BURGLARIOUSLY.  A  technical  word 
which  must  be  introduced  into  an  indictment 


for  burglary  at  common  law.  The  essential 
words  are  "feloniously  and  burglariously 
broke  and  entered  the  dwelling-house  in  the 
night-time" ;  Whart.  Cr.  PI.  §  265.  No  other 
word  at  common  law  will  answer  the  pur- 
pose, nor  will  any  circumlocution  be  suffi- 
cient; 4  Co.  39;  5  id.  121;  Cro.  Eliz.  920; 
Bacon,  Abr.  Indictment  (G,  C);  State  v. 
McClung,  35  W.  Va.  280,  13  S.  E.  654.  But 
there  is  this  distinction:  when  a  statute 
punishes  an  offence  by  its  legal  designation 
without  enumerating  the  acts  which  con- 
stitute it,  then  it  is  necessary  to  use  the 
terms  which  technically  charge  the  offence 
named  at  common  law.  But  this  is1  not 
necessary  when  the  statute  describes  the 
whole  offence,  and  the  indictment  charges 
the  crime  in  the  words  of  the  statute.  Thus, 
an  indictment  which  charges  the  statute 
crime  of  burglary  is  sufficient,  without  aver- 
ring that  the  crime  was  committed  "bur- 
glariously ;"  Tully  v.  Com.,  4  Mete.  (Mass.) 
357.  See  Portwood  v.  State,  29  Tex.  47,  94 
Am.  Dec.  258;  People  v.  Bos  worth,  64  Hun 
72,  19  N.  T.  Supp.  114. 

BURGLARY.  The  breaking  and  entering 
the  house  of  another  in  the  night-time,  with 
intent  to  commit  a  felony  therein,  whether 
the  felony  be  actually  committed  or  not.  Co. 
3d  Inst.  63;  1  Hale,  PI.  Cr.  549;  1  Hawk.  PI. 
Cr.  c.  38,  s.  1;  4  Bla.  Com.  224;  2  Russ.  Cr. 
2;  State  v.  Wilson,  1  N.  J.  L.  441,  1  Am. 
'Dec.  216;  Com.  v.  Newell,  7  Mass.  247;  1 
Whart  Cr.  L.  (9th  ed.)  §  758 ;  Allen  v.  State, 
40  Ala.  334,  91  Am.  Dec.  477. 

In  what  place  a  burglary  can  be  commit- 
ted. It  must,  in  general,  be  committed  in  a 
mansion-house,  actually  occupied  as  a  dwell- 
ing ;  but  if  it  be  left  by  the  owner  animo  re- 
vertendi,  though  no  person  resides  in  it  in 
his  absence,  it  is  still  his  mansion;  Fost.  77; 
Com.  v.  Brown,  3  Rawle  (Pa.)  207;  Com.  v. 
Barney,  10  Cush.  (Mass.)  478.  See  Dwell- 
ing-house. But  burglary  may  be  committed 
in  a  church,  at  common  law.  And  under  the 
statutes  of  some  of  the  states,  it  has  been 
held  that  it  could  be  committed  in  a  store 
over  which  were  rooms  in  which  the  owner 
lived;  Quinn  v.  People,  71  N.  Y.  561,  27  Am. 
Rep.  87.  A  shoeshop  in  a  room  connected 
with  the  dwelling  is  a  part  of  it;  People  v. 
Dupree,  98  Mich.  26,  56  N.  W.  1046;  a  wheat 
house;  Bass  v.  State,  1  Lea  (Tenn.)  444;  a 
railroad  depot;  State  v.  Bishop,  51  Vt.  287, 
31  Am.  Rep.  690;  a  stable;  Orrell  v.  People, 
94  111.  456,  34  Am.  Rep.  241 ;  but  not  a  mill- 
house,  seventy-five  yards  from  the  owner's 
dwelling,  and  not  shown  to  be  appurtenant; 
3  Cox  581;  Co.  3d  Inst.  64.  It  must  be  the 
dwelling-house  of  another  person ;  2  Bish. 
Cr.  Law  §  90;  2  East,  PI.  Cr.  502.  A  store- 
house in  which  a  clerk  sleeps  to  protect  the 
property  is  a  dwelling;  State  v.  Pressley,  90 
N.  C.  730;  U.  S.  v.  Johnson,  2  Cra.  C.  C.  21, 
Fed.  Cas.  No.  15,485. 

At  what  time  it  must  be  committed.    The 


BURGLARY 


403 


BURGLARY 


offence  must  be  committed  in  the  night; 
for  In  the  daytime  there  can  be  no  bur- 
glary ;  4  Bla.  Com.  224;  1  C.  &  K.  77 ;  Lewis 
v.  State,  16  Conn.  32 ;  State  v.  Bancroft,  10 
N.  H.  10."..  For  this  purpose  it  is  deemed 
night  when  by  the  light  of  the  sun  a  person 
cannot  clearly  discern  the  face  or  counte- 
nance of  another;  1  Hale,  PI.  Cr.  550;  Co. 
:;«1  Inst.  62;  1  C.  &  P.  297;  7  Dane.  Abr. 
134.  This  rule,  it  is  evident,  does  not  apply 
to  moonlight;  4  Bla.  Com.  224;  2  Russ.  Cr. 
32;  State  v.  Bancroft,  10  N.  H.  105;  Thomas 
v.  State,  5  How  (Miss.)  20;  State  v.  Mc- 
Knight,  111  N.  C.  C90,  10  S.  E.  310.  The 
breaking  ami  entering  need  not  be  done  the 
same  night ;  1  R.  &  R.  417 :  but  it  is  neces- 
sary that  the  breaking  and  entering  should 
be  in  the  night-time;  for  if  the  breaking  be 
in  daylight  and  the  entry  in  the  night,  or 
vice  versa,  it  is  said,  it  will  not  be  burglary; 
1  Hale,  PI.  Cr.  551;  2  Russ.  Cr.  32.  But 
qucrre,  Wilniot,  Burgl.  9.  See  Com.,  Dig. 
Justices,  P,  2;  2  Chit.  Cr.  Law  1092.  In 
some  states  by  statute  the  breaking  and  en- 
tering in  the  daytime  with  intent  to  commit 
a  misdemeanor  or  felony  is  burglary:  State 
v.  Miller,  3  Wash.  131,  28  Pac.  375 ;  State  v. 
Hutchinson,  111  Mo.  257,  20  S.  W.  34. 

The  means  used.  There  must  be  both  a 
brcalnno  and  an  entry  or  an  exit.  An  actual 
"breaking  takes  place  when  the  burglar 
breaks  or  removes  any  part  of  the  house,  or 
the  fastenings  provided  for  it,  with  violence; 
1  Bish.  Cr.  Law  91.  Breaking  a  window, 
taking  a  pane  of  glass  out,  by  breaking  or 
bending  the  nails  or  other  fastenings;  1  C. 
&  P.  300;  9  id.  44;  1  R.  &  ',R.  341,  499; 
Walker  v.  State,  52  Ala.  376;  cutting  and 
tearing  down  a  netting  of  twine  nailed  over 
an  open  window;  Com.  v.  Stephenson,  S 
Pick.  (Mass.)  354;  Sims  v.  State,  136  Ind. 
358,  36  N.  E.  278;  raising  a  latch,  where 
the  door  is  not  otherwise  fastened ;  8  C.  & 
P.  747 ;  Cose  439 ;  Curtis  v.  Hubbard,  1 
Hill  (N.  Y.)  336;  State  v.  Newbegin,  25  Me. 
500;  Bass  v.  State,  1  Lea  (Tenn.)  444;  Tim- 
mons  v.  State,  34  Ohio  St.  426,  32  Am.  Rep. 
370;  State  v.  O'Brien,  81  la.  93,  46  N.  W. 
801 ;  picking  open  a  lock  with  a  false  key ; 
putting  back  the  lock  of  a  door,  or  the  fast- 
ening of  a  window,  with  an  instrument; 
lowering  a  window  fastened  only  by  a  wedge 
or  weight;  1  R.  &  R.  355,  451;  State  v. 
Moore,  117  Mo.  395,  22  S.  W.  1086;  Walker 
v.  State,  52  Ala.  376;  or  opening  a  door 
when  not  locked  or  bolted;  Grimes  v.  State, 
77  Ga.  762,  4  Am.  St.  Rep.  112;  contra, 
Williams  v.  State  (Tex.)  13  S.  W.  000;  State 
v.  Reid,  20  la.  413;  Timmons  v.  State,  34 
Ohio  St.  426,  32  Am.  Rep.  376;  People  v. 
Nolan,  22  Mich.  229;  Carter  v.  State.  68 
Ala.  96;  Lyons  v.  People,  OS  111.  271;  turn- 
ing the  key  when  the  door  is  locked  in  the 
inside,  or  unloosing  any  other  fastening 
which  the  owner  has  provided;  lifting  a 
trap-door;  1  Mood.  377;  but  see  4  C.  &  P. 
.  231 ;    are  several  instances  of  actual  break- 


ing. But  removing  a  loose  plank  in  a 
tition  wall  was  held  not  a  breaking;  Com. 
v.  Trimmer,  1  Mass.  476.  According  to  the 
Scotch  law,  entering  a  house  by  means  of 
the  true  key,  while  in  the  door,  or  when  it 
had  been  stolen,  is  a  breaking;  Alison,  Pr. 
284.    See  1  Swint,  Just  133. 

Constructive    breakings    occur    when    the 
bnrglar    gains   an    entry   by   fraud:    1    <'r.  & 
D.  L'irj;    Ducher  v.  State,  18  Ohio.  308; 
v.    1 1.nry.   31    N.   C.   403;    'Rolland    v.    I 
monwealth,   82  Pa.  306;     by  conspiracy   or 
threats;    i  Russ.  Cr.  Graves  ed.  Tml': 
2;    Slate  v.  Rowe.  98  N.  C.  <'C\  4  S.  D. 
by  bribing  a  servant :     by  knocking  at  the 
door,    and,    when    opened,    rushing    in :     by 
gaining   admittance  on  pretense   of   wishing 
to  speak  to  some  one  within;   by  gaining  ad- 
mittance  by   threats;    Odgers,  Com.   L.   383. 
When  one  of  three   breaks  and  enters,  an- 
other   watches    at    the    door,    and    a    third 
stands    farther    off    to    give    notice    if   help 
comes,  it  is  burglary  in  all ;   1  Hale,  PI.  Cr. 
555. 

Where  one  is  let  into  a  store  in  the  night- 
time on  pretence  of  making  a  purchase  and 
while  in  he  unbolts  a  door  and  admits  his 
accomplice,  who  secretes  himself  on  the  in- 
side and  afterwards  steals,  both  may  be 
convicted  of  breaking  and  entering;  Com. 
v.  Lourey,  1S8  Mass.  18,  32  N.  E.  940. 
Where  a  window  is  slightly  raised  in  the 
daytime  so  as  to  prevent  the  bolt  from  being 
effectual,  it  would  not  prevent  the  subse- 
quent breaking  and  entering  in  the  night- 
time through  the  window  from  being  bur- 
glary :  People  v.  Dupree,  98  Mich.  26.  E 
W.  1046.  The  breaking  of  an  inner  door 
of  the  house  will  be  sufficient  to  constitute 
a  burglary;  1  Hale,  PI.  Cr.  553:  8  C.  &  P. 
747:  People  v.  Fralick.  Lalor's  Sup.  (N.  Y.) 
63;  2  Bish.  Cr.  Law  §  97  :  or  the  opening  of  an 
inner  closed  door;  2  East,  P.  C.  4S;  and  it 
is  not  necessary  that  such  breaking  be  ac- 
companied with  an  intention  to  commit  a 
felony  in  the  very  room  entered;  Hart- 
mann  v.  Com.,  5  Pa.  00.  Entry  through  an 
open  door  in  the  night-time  with  intent  to 
steal  is  not  burglary;  Costello  v.  State 
(Tex.)  21  S.  W.  300. 

Any.  the  least  entry,  with  the  whole  or 
any  part  of  the  body.  hand,  or  foot  or  with 
any  instrument  or  weapon,  introduced  for 
the  purpose  of  committing  a  felony,  will 
be  sufficient  to  constitute  the  offence;  Co. 
3d  Inst.  04;  4  Bla.  Com.  227;  Bacon,  Abr. 
Burolary  <R>:  Com.  Dig.  Justices,  P.  4:  Al- 
len v.  State.  40  Ala.  334,  91  Am.  Dee.  177  : 
Franco  v.  State,  12  Tex.  'J7d  :  Com.  v.  Glov- 
er, 111  Mas<.  395;  Harris  v.  People,  4  1  Mich. 
305,  0  N.  W.  677.  Where  a  person  enters  a 
chimney  of  a  storehouse  intending  to  go 
down  such  into  the  store  to  steal,  he  is  guilty 
of  burglary;  Olds  v.  state.  07  Ala.  81,  12 
South.  409.  But  the  introduction  of  an  in- 
strument, in  the  act  of  breaking  the  house, 
will  not  be  sufficient  entry  unless  it  be  in- 


BURGLARY 


406 


BURLAW  COURTS 


troduced  for  the  purpose  of  committing  a 
felony;  1  Leach  406;  1  Mood.  183.  The 
whole  physical  frame  need  not  pass  within ; 
2  Bish.  Cr.  Law  §  92 ;    1  Gabb.  Cr.  Law  176. 

There  was,  at  common  law,  doubt  wheth- 
er breaking  out  of  a  dwelling-house  would 
constitute  burglary;  4  Bla.  Com.  227;  1  B. 
&  H.  Lead.  Cr.  Cas.  540;  but  it  was  de- 
clared to  be  so  by  stat.  12  Anne,  c  7,  §  3, 
and  7  &  8  Geo.  IV.  c.  29,  §  11.  The  bet- 
ter opinion  seems  to  be  that  it  was  not  so 
at  common  law;  Rolland  v.  Com.,  82  Pa. 
324,  22  Am.  Rep.  75S ;  Whart.  Cr.  L.  9th 
ed.  §  771;  contra.  State  v.  Ward.  43  Conn. 
489.  21  Am.  Rep.  665.  As  to  what  acts  con- 
stitute a  breaking  out,  see  1  Jebb  99 ;  8  C. 
&  P.  747;  1  Russ.  Cr.  (Graves  ed.)  792;  1 
B.  &  H.  Lead.  Cr.  Cas.  540. 

The  intention.  Tbe  intent  of  the  break- 
ing and  entry  must  be  felonious ;  if  a  felony, 
however,  be  committed,  the  act  will  be  pri- 
ma facie  evidence  of  an  intent  to  commit 
it ;  1  Gabb.  Cr.  Law  192.  See  Alexander  v. 
State,  31  Tex.  Cr.  R.  359,  20  S.  W.  756; 
State  v.  Scripture,  42  N.  H.  485;  People 
v.  Young,  65  Cal.  225,  3  Pac.  813.  See  State 
v.  Colter.  6  R.  I.  195 ;  Com.  v.  Tuck,  20  Pick. 
(Mass.)  356;  Lowder  v.  State,  63  Ala.  143, 
35  Am.  Rep.  9.  If  the  breaking  and  entry 
be  with  an  intention  to  commit  a  trespass,  or 
a  mere  misdemeanor,  and  nothing  further 
is  done,  the  offence  will  not  be  burglary ; 
Com.  v.  Newell,  7  Mass.  245 ;  State  v.  Coop- 
er, 16  Vt.  551;  People  v.  Urquidas,  96  Cal. 
239,  31  Pac.  52 ;    1  Hale,  PI.  Cr.  560. 

See    Hamosocne;     Breaking;     Crepuscu- 

LUM. 

It  need  not  appear  that  the  ulterior  felony 
was  actually  committed.  And  if  a  tramp 
enters  for  shelter  and  is  tempted  to  steal, 
it  is  not  burglary;  Odgers,  Com.  L.  384. 

BURGOMASTER.  In  Germany,  this  is  the 
title  of  an  officer  who  performs  the  duties 
of  a  mayor. 

BURH.  For  a  long  time  after  the  Ger- 
manic invasion  of  England,  it  meant  a  fast- 
ness. The  hill-top  that  has  been  fortified  is 
a  burh.  Very  often  it  has  given  its  name  to 
a  neighboring  village;  it  is  the  future  bor- 
ough. The  entrenchment  around  a  great 
man's  house  was  a  burh.  Early  in  the  10th 
century  a  burh  came  to  have  many  men  in 
it  and  usually  a  moot  was  held  there — a 
burh-gemot.  See  Maitland,  Domesday  and 
Beyond,  183. 

BURIAL.    The  act  of  interring  the  dead. 

No  burial  is  lawful  unless  made  in  con- 
formity with  the  local  regulations;  and 
when  a  dead  body  has  been  found,  it  can- 
not be  lawfully  buried  until  the  coroner 
has  holden  an  inquest  over  it.  In  England 
it  is  the  practice  for  coroners  to  issue  war- 
rants to  bury,  after  a  view.  See  Dead 
Body  ;    Cemetery. 

BURLAW    COURTS.     In  Scotch    Law.     As- 


semblages of  neighbors  to  elect  burlaw  men, 
or  those  who  were  to  act  as  rustic  judges 
in  determining  disputes  in  their  neighbor- 
hood.    Skene;  Bell,   Diet. 

BURNING.     See   Accident  ;   Fire. 

BURNING  IN  THE  HAND.  When  a  lay- 
man was  admitted  to  benefit  of  the  clergy 
he  was  burned  in  the  hand,  "in  the  brawn 
of  the  left  thumb,"  in  order  that  he  might 
not  claim  the  benefit  twice.  This  practice 
was  finally  abolished  by  stat.  19  Geo.  III. 
c.  74;  though  before  that  time  the  burning 
was  often  done  with  a  cold  iron ;  12  Mod. 
448;  4  Bla.  Com.  267.  See  Benefit  of 
Clergy. 

BURYING-GROUND.  A  place  appropri- 
ated for  depositing  the  dead;  a  cemetery. 
In  Massachusetts,  burying-grounds  cannot 
be  appropriated  to  roads  without  the  con- 
sent of  the  owners.  Mass.  Gen.  Stat.  244. 
So  in  Pennsylvania  by  acts  passed  in  1849 
and  1861.     See  Cemetery. 

BUSHEL.  The  Winchester  bushel,  estab- 
lished by  the  13  Will.  III.  c.  5  (1701)  was 
made  the  standard  of  grain.  A  cylindrical 
vessel,  eighteen  and  a  half  inches  in  diam- 
eter, and  eight  inches  deep  inside,  contains 
a  bushel ;  the  capacity  is  2145.42  cubic  inch- 
es. The  bushel  established  by  the  5  &  6 
Geo.  IV.  c.  74,  is  to  contain  2218.192  cubic 
inches.  This  measure  has  been  adopted  in 
many  of  the  United  States.  In  other  states 
the  capacity  varies. 

See  the  subject  discussed  in  report  of  the 
Secretary  of  State  of  the  United  States  to 
the  Senate,  Feb.  22,  1821. 

BUSINESS.  That  which  occupies  the 
time,  attention,  and  labor  of  men  for  the 
purpose  of  livelihood  or  profit,  but  it  is  not 
necessary  that  it  should  be  the  sole  occu- 
pation or  employment.  It  embraces  every- 
thing about  which  a  person  can  be  employ- 
ed; Flint  v.  Stone  Tracy  Co.,  220  U.  S.  107, 
31  Sup.  Ct.  342,  55  L.  Ed.  389,  Ann.  Cas. 
1912B,  1312.  The  doing  of  a  single  act  per- 
taining to  a  particular  business  will  not 
be  considered  engaging  in  or  carrying  on 
the  business,  yet  a  series  of  such  acts  would 
be  so  considered.  Lemons  v.  State,  50  Ala. 
130;  People  v.  Com'rs  of  Taxes  of  City  of 
New  York,  23  N.  Y.  244. 

It  is  a  word  of  large  and  indefinite  im- 
port; the  legislature  could  not  well  have 
used  a  larger  word.  Jessel,  M.  R.,  in  15  Ch. 
D.  258.     See  Place  of  Business;    Domicil. 

BUSINESS  HOURS.  The  time  of  the  day 
during  which  business  is  transacted.  In  re- 
spect to  the  time  of  presentment  and  demand 
of  bills  and  notes,  business  hours  generally 
range  through  the  whole  day  down  to  the 
hours  of  rest  in  the  evening,  except  when 
the  paper  is  payable  at  a  bank  or  by  a  bank- 
er; Cayuga  County  Bank  v.  Hunt,  2  Hill 
(N.    Y.)*  635.      See    Flint   v.   Rogers,   15    Me. 


BUSINESS  HOURS 


407 


BUYING  TITLES 


67;   Lunt  v.  Adams,  17  id.  230;    Byles,  Bills 
283. 

The  term  "usual  business  hours"  does  not 
mean  the  time  an  employer  may  require  his  | 
employe's    services,    but    those    of    tbe    com- 
munity generally;  Derosia  v.  R.  Co.,  18  Minn. 
154  (Gil.  119). 

See  Time. 

BUTLERAGE.  A  certain  portion  of  every 
cask  of  wine  imported  by  an  alien,  which 
the  king's  butler  was  allowed  to  take. 

Called  also  prisage;  2  Bulstr.  254.  An- 
ciently, it  might  be  taken  also  of  wine  im- 
ported by  a  subject.  1  Bla.  Com.  315;  Termes 
de  la  Ley;   Cowell. 

BUTT.  A  measure  of  capacity,  equal  to 
one  hundred  and  eight  gallons ;  also  denotes 
a  measure  of  land.  Jac.  Diet.;  Cowell.  See 
Measure. 

BUTTALS.  The  bounding  lines  of  land  at 
the  end;    abuttals,   which  see. 

BUTTS.  The  ends  or  short  pieces  of 
arable  lands  left  in  ploughing.     Cowell. 

BUTTS  AND  BOUND.  The  lines  bound- 
ing an  estate.  The  angles  or  points  where 
these  lines  change  their  direction.  Cowell; 
Spelman,  Gloss.     See  Abuttals. 

BUYING  TITLES.  The  purchase  of  the 
rights  of  a  desseisee  to  lands  of  which  a  third 
person  has  the  possession. 

When  a  deed  is  made  by  one  who,  though 
having  a  legal  right  to  land,  is  at  the  time 
of  the  conveyance  disseised,  the  sale  is  void 
as  a  general  rule  of  the  common  law:  the 
law  will  not  permit  any  person  to  buy  a 
quarrel,  or,  as  it  is  commonly  termed,  a 
pretended  title.  Such  a  conveyance  is  an 
offence  at  common  law  and  by  a  statute  of 
32  lien.  VIII.  c.  9.  This  rule  has  been  gen- 
erally adopted  in  the  United  States,  and  is 
affirmed  by  statute  in  some  states;  3  Washb. 
R.  P.  *59G.  In  the  following  states  the 
act  is  unlawful,  and  the  parties  are  subject 
to  various  penalties  in  the  different  states: 
in  Connecticut,  Ilinman  v.  Hinman,  4  Conn. 
575;  Georgia,  Helms  v.  May,  29  da.  124;  In- 
diana, Webb  v.  Thompson,  23  Ind.  432;  Gal- 
breath  v.  Doe,  8  Blackf.  (Ind.)  3G6;  Ken- 
tucky, Wash  v.  McBrayer,  1  Dana  (Ky.)  566; 
Williams  v.  Rogers,  id.  374;  see  Young  v. 
Kimborland,  2  Litt.  (Ky.)  225;  Aldridge  v. 
Kincaid,  id.  393;  Ewing's  Heirs  v.  Savory, 
4  Bibb  (Ky.)  424;  Massachusetts,  Brinley  v. 
Whiting,  5  Pick.  (Mass.)  356;  Wade  v.  Liud- 
sey,  6  Mete.  (Mass.)  407;  Mississippi,  Bush 
v.  Cooper,  26  Miss.  599,  59  Am.  Dec.  270; 
Xctr  Hampshire,  Dame  v.  Wingate,  12  N.  II. 
291;  New  York,  Thurman  v.  Cameron,  24 
Wend.  (N.  Y.)  87;  North  Carolina,  Den  v. 
Shearer,  5  N,  0.  Ill:  Iloyle  v.  Logan.  15  N. 
C.  495;  Ohio,  Walker,  Am.  Law  L".»7,  351; 
Vermont,  Selleck  v.  Starr.  6  Vt  198;  Bee 
White  v.  Fuller,  38  Vt  204;  Park  v.  Pratt, 
id.  553. 


By  the  transaction,  the  grantor  does  not 
lose  his  estate;  Brinley  v.  Whiting,  5  Pick. 
(Mass.)  348;    Sohier  v.  Collin,  101  Mass.  179. 

In  Illinois,  Fetrow  v.  Merriwether,  53  111. 
L'7!>;  Missouri,  Rev.  star.  119;   PennsyUx 

u  v.  Miller,  2  Watts  (Pa.)  ^~~:  Ohio, 
Halls  Lessee  v.  Ashby,  9  Ohio  98,  ::i  Am. 
Dec.  421;  Wisconsin,  Stewart  v.  BfcSweeney, 
14  Wis.  471;  South  Carolina.  Poyas  v.  Wil- 
kins,  12  Rich.  (S.  C.)  420;  Maine,  Rev.  Stat, 
c.  73,  §  1;  Michigan,  Crane  v.  Boeder,  lii 
Mich.  82,  4  Am.  Rep.  430;  such  sales  are 
valid.     See  Champerty. 

BY.  Near,  beside,  passing  In  presence,  and 
it  also  may  be  used  as  exclusive.  Rankin  v. 
Woodworth,  3  P.  &  W.  (Pa.)  48. 

When  used  descriptively  in  a  grant  it  does 
not  mean  in  immediate  contact  with,  but 
near  to  the  object  to  wbich  it  relates.  It  is 
a  relative  term,  meaning,  when  used  in  land 
patents,  very  unequal  and  different  distanc- 
es;   Wilson  v.  Inloes,  6  (Jill    (Md.)  121. 

BY-BIDDING.  Bidding  with  tbe  conniv- 
ance or  at  the  request  of  the  vendor. of  goods 
by  auction,  without  an  intent  to  purchase, 
for  the  purpose  of  obtaining  a  higher  price 
than  would  otherwise  be  obtained. 

By-bidders  are  also  called  puffers,  which 
see.  It  has  been  said  that  the  practice  is 
probably  allowable  if  it  be  done  fairly,  with 
an  intention  only  to  prevent  a  sale  at  an 
unduly  low  price;  Latham's  Ex'rs  v.  Morrow, 
6  B.  Monr.  (Ky.)  630;  Veazie  v.  Williams,  3 
Sto.  622,  Fed.  Cas.  No.  16,907;  15  M.  &  W. 
371;  Steele  v.  Elknaker,  11  S.  &  R,  (Pa.)  86. 
A  bidder  is  required  to  act  in  good  faith  and 
any  combination  to  prevent  a  fair  competi- 
tion would  avoid  the  sale;  3  B.  &  B.  116; 
Martin  v.  Ranlett,  5  Rich.  (S.  C.)  541.  57  Am. 
Dec.  770;  Barnes  v.  Nays,  S8  Ga.  69G,  16  S. 
E.  67;  Towle  v.  Leavitt,  23  N.  H.  360,  55 
Am.  Dec.  195;  Veazie  v.  Williams,  8  How. 
(U.  S.)  153,  12  L.  Ed.  1018.  See  Bid;  Auc- 
tion. 

Lord  Mansfield  held  that  the  employment 
of  a  single  puffer  was  a  fraud ;  Cowp.  395 ; 
this  rule  was  afterwards  relaxed,  in  equity 
only,  so  as  to  allow  a  single  bidder;  12  Ves. 
477.  The  rule  was  stated  in  L.  R.  1  Ch.  10. 
to  be,  that  a  single  puffer  will  vitiate  a  sale 
in  law.  but  may  be  allowed  in  equity:  though 
either  at  law  or  in  equity,  such  bidding  is 
permissible  upon  notice  at  the  sale.  By  30 
and  31  Vict  c.  48.  the  rule  in  equity  was  de- 
clared to  lie  the  same  as  at  law.  See  L.  R. 
9  Eq.  60.  Lord  Mansfield's  opinion  was  fol- 
lowed in  Appeal  of  Peunock,  14  Pa  148,  53 
Am.  Pee.  561,  per  Gibson,  O.  J.,  overruling 
Steele  v.  Ellmaker,  11  S.  &  R.  (Pa.)  S6: 
Towle  v.  Leavitt,  23  N.  H.  360,  55  Am.  Dec. 
pi.-,;  Baham  v.  Bach,  13  La.  287,  :'.::  Am.  Dec. 
561.  In  New  Jersey  it  seems  that  if  there 
is  a  bona  fide  bid  next  before  that  of  the 
buyer,  the  bidding  of  puffers  will  not  avoid 
the  gale  (SO  held  also  in  Veazie  v.  Williams, 
3  Story  Gil,  Fed.  Cas.  No.  16,907);   but  it  is 


BY-BIDDING 


408 


BY-LAW  MEN 


intimated  that  it  would  be  a  better  rule  to  for- 
bid puffing ;  National  Bank  of  the  Metropolis 
v.  Sprague,  20  N.  J.  Eq.  159.  Kent  favors 
Lord  Mansfield's  rule;  2  Kent  *540.  The 
employment  of  a  puffer  to  enhance  the  price 
of  property  sold  is  a  fraud ;  Fisher  v.  Her- 
sey,  17  Hun  (N.  Y.)  373.  So  held  in  Caldwell 
v.  U.  S.  8  How.  (U.  S.)  378,  12  L.  Ed.  1115. 
Exceptions  to  the  rule  may  occur  when  it 
does  not  appear  that  the  buyer  paid  more 
than  the  value  of  the  property  or  than  he 
had  determined  to  bid;  Tomlinson  v.  Savage, 
41  N.  C.  430.  A  purchaser  thus  misled 
must  restore  the  property  as  soon  as  he  dis- 
covers the  fraud;  Backenstoss  v.  Stahler's 
Adm'rs,  33  Pa.  251,  75  Am.  Dec.  592 ;  Veazie 
v.  Williams,  3  Story  611,  631,  Fed.  Cas.  No. 
16,907.  In  Phippen  v.  Stickney,  3  Mete. 
(Mass.)  384,  the  validity  of  the  sale  is  held 
to  depend  upon  tbe  animus  with  which  the 
puffing  is  carried  on.  Where  a  sale  is  ad- 
vertised to  be  "without  reserve"  or  "posi- 
tive," the  secret  employment  of  by-bidders 
renders  the  sale  voidable  by  the  buyer ;  Cur- 
tis v.  Aspinwall,  114  Mass.  187,  19  Am.  Rep. 
332. 

BY  BILL.  Actions  commenced  by  capias 
instead  of  by  original  writ  were  said  to  be 
by  bill.  3  Bla.  Com.  285,  2S6.  See  Harkness 
v.  Harkness,  5  Hill  (N.  Y.)  213. 

The  usual  course  of  commencing  an  action  In  the 
King's  Bench  was  by  a  bill  of  Middlesex.  In  an  ac- 
tion commenced  by  bill  it  is  not  necessary  to  notice 
the  form  or  nature  of  the  action;    1  Chit.  PI.  283. 

BY  ESTIMATION.  A  term  used  in  con- 
veyances. In  sales  of  land  it  not  unfre- 
quently  occurs  that  the  property  is  said  to 
contain  a  certain  number  of  acres  by  esti- 
mation, or  so  many  acres,  more  or  less. 
When  these  expressions  are  used,  if  the  land 
fall  short  by  a  small  quantity,  the  purchaser 
will  receive  no  relief.  In  one  case  of  this 
kind,  the  land  fell  short  two-fifths,  and  the 
purchaser  received  no  relief;  Ketchum  v. 
Stout,  20  Ohio  453;  Stull  v.  Hurtt,  9  Gill 
(Md.)  446;    Jollife  v.  Hite,  1  Call  (Va.)  301, 

1  Am.  Dec.  519;  Stebbins  v.  Eddy,  4  Mas. 
419,  Fed.  Cas.  No.  13,342;  Jones's  Devisees 
v.  Carter,  4  H.  &  M.  (Va.)  184;  Boar  v. 
M'Cormick,  1  S.  &  R.  (Pa.)  166;  Mann  v. 
Pearson,  2  Johns.  (N.  Y.)  37;   Howe  v.  Bass, 

2  Mass.  382,  3  Am.  Dec.  59;  Snow  v.  Chap- 
man, 1  Root  (Conn.)  528.  The  meaning  of 
these  words  has  never  been  precisely  ascer- 
tained by  judicial  decision.  See  Sugden, 
Vend.  231,  where  the  author  applies  the  rule 
to  contracts  in  fieri.  But  this  distinction 
was  not  accepted  in  Noble  v.  Googins,  99 
Mass.  234. 

See  More  or  Less;    Subdivision. 

BY-LAW  MEN.  In  an  ancient  deed,  cer- 
tain parties  are  described  as  "yeomen  and 
by-law  men  for  this  present  year  in  Easin- 
guold."    6  Q.  B.  60. 

They  appear  to  have  been  men  appointed  for 
some  purpose  of  limited  authority  by  the  other  In- 


habitants,  as   the   name   would   suggest,   under   by- 
laws  of   the   corporation    appointing. 

BY-LAWS.  Rules  and  ordinances  made 
by  a  corporation  for  its  own  government. 
See  Drake  v.  R.  Co.,  7  Barb.  (N.  Y.)  539. 
The  office  of  a  by-law  is  to  regulate  the  con- 
duct and  define  the  duties  of  the  members 
towards  the  corporation  and  among  them- 
selves; Flint  v.  Pierce,  99  Mass.  70,  96  Am. 
Dec.  691.  A  by-law  was  originally  a  town 
law,  from  "by"  the  Scandinavian  word  for 
town.  So  the  Anglo-Saxon  bylage,  a  private 
law.  Thomp.  Corp.  §  938.  As  to  the  analogy 
between  by-law  and  ordinance,  see  34  Am. 
Dec.  627,  n.;  Dillon,  Munc.  Corp.  §  307.  The 
power  to  make  by-laws  is  usually  confer- 
red by  express  terms  of  the  charter  creating 
the  corporation.  When  not  expressly  grant- 
ed, it  is  given  by  implication,  and  it  is  inci- 
dent to  the  very  existence  of  a  corporation; 
Brice,  Ultra  Vires  (3d  Ed.)  6;  Moraw.  Priv. 
Corp.  491.  When  there  is  an  express  grant, 
limited  to  certain  cases  and  for  certain  pur- 
poses, the  corporate  power  of  legislation  is 
confined  to  the  objects  specified,  all  others 
being  excluded  by  implication;  2  P.  Wms. 
207;  Ang.  Corp.  177.  The  power  of  making 
by-laws,  if  the  charter  is  silent,  resides  in 
the  members  of  the  corporation;  Union  Bank 
of  Maryland  v.  Ridgely,  1  Harr.  &  G.  (Md.) 
324;  4  Burr.  2515;  6  Bro.  P.  C.  519;  Morton 
Gravel  Road  Co.  v.  Wysong,  51  Ind.  4;  Peo- 
ple v.  Throop,  12  Wend.  (N.  Y.)  183;  State 
v.  Ferguson,  33  N.  H.  424;  and  the  power  to 
repeal  them "  also  exists;  Bank  of  Holly 
Springs  v.  Pinson,  58  Miss.  4215,  38  Am. 
Rep.  330;  7  Dowl.  &  R.  267;  Smith  v.  Nelson, 
18   Vt.  511. 

By-laws,  when  contrary  to  the  Constitution 
or  laws  of  the  state  or  the  TJ.  S.  are  void 
whether  the  charter  authorizes  the  making 
of  such  by-law  or  not;  because  no  legisla- 
ture can  grant  power  larger  than  that  which 
it  possesses;  Coates  v.  City  of  New  York,  7 
Cow.  (N.  Y.)  585;  Stuyvesant  v.  City  of  New 
York,  id.  604;  First  Nat.  Bank  v.  Lanier,  11 
Wall.  (U.  S.)  369,  20  L.  Ed.  172;  Jay  Bridge 
Corporation  v.  Woodman,  31  Me.  573;  In  re 
Butcher's  Beneficial  Ass'n,  35  Pa.  151;  Peo- 
ple v.  Fire  Department,  31  Mich.  458;  State 
v.  Curtis,  9  Nev.  325;  1  Q.  B.  D.  12.  They 
must  not  be  inconsistent  with  the  charter; 
Green's  Brice,  Ultra  Vires,  15. 

B|y -laws  must  be  reasonable;  Cartan  v. 
Benevolent  Society,  3  Daly  (N.  Y.)  20;  Com. 
v.  Gill,  3  Whart.  (Pa.)  228;  State  v.  Mer- 
chants' Exchange,  2  Mo.  App.  96;  and  not 
retrospective;  People  v.  Crockett,  9  Cal.  112; 
People  v.  Fire  Department,  31  Mich.  458; 
they  bind  the  members;  Cummings  v.  Web- 
ster, 43  Me.  192;  Weatherly  v.  Medical  & 
Surgical  Society,  76  Ala.  567;  Kent  v.  Min- 
ing Co.,  78  N.  Y.  179;  Harrington  v.  Ben- 
evolent Ass'n,  70  Ga.  341;  Flint  v.  Pierce, 
99  Mass.  68,  96  Am.  Dec.  691 ;  who  are  pre- 
sumed to   have  notice  of  them;    Cummings 


BY-LAWS 


409 


BY-LAWS 


v.  Webster,  43  Me.  192;  Village  of  Buffalo 
v.  Webster,  10  Wend.  (N.  Y.)  100;  Clark  v. 
Life  Ass'n,  14  App.  D.  C.  154,  43  L.  R.  A. 
390;  Purdy  v.  Life  Ass'n,  101  Mo.  App.  91, 
74  S.  W.  486;  but  a  by-law  void  as  against 
strangers  or  non-assenting  members,  may  be 
good  as  a  contract  against  assenting  mem- 
bers; Slee  v.  Bloom,  19  Johns.  (N.  Y.)  456, 
10  Am.  Dec.  273;  Cooper  v.  Frederick,  9  Ala. 
738;  Davis  v.  Proprietors  of  Meeting-House, 
8  Mete.  (Mass.)  321.  See  State  v.  Overton, 
24  N.  J.  L.  440,  61  Am.  Dec.  671.  It  has  been 
held  that  third  parties  dealing  with  corpor- 
ations ure  not  bound  to  take  notice  of  by- 
laws; Fay  v.  Noble,  12  Cush.  (Mass.)  1;  Wild 
v.  Bank,  3  Mas.  505,  Fed.  Cas.  No.  17,646; 
see  Samuel  v.  Holladay,  Woolw.  400,  Fed. 
Cas.  No.  12,288,  where  a  distinction  was 
raised  between  by-laws  made  by  the  corpo- 
ration and  those  made  by  the  directors,  so 
far  as  relates  to  notice  to  third  parties;  but, 
contra,  Adriance  v.  Rooine,  52  Barb.  (N.  Y.) 
399. 

See  Wllliston,  3  Sel.  Essays  on  Anglo- 
Amer.  Leg.  Hist.  213. 

But  it  is  said  that  where  third  persons  who 
deal  with  a  corporation  know  its  course  of 
business  and  follow  a  prescribed  regulation, 
it  will  be  presumed  that  they  dealt  with  ref- 
erence thereto:  Thomp.  Corp.  Sec.  492.  A 
court  will  not  take  judicial  notice  of  the  by- 
laws of  a  corporation;  Haven  v.  Asylum  for 
Insane,  13  N.  H.  532,  38  Am.  Dec.  512.  Un- 
less required  by  statute  it  is  not  necessary 


that  the  by-laws  of  a  private  corporation 
should  be  in  writing;  Knights  and  Ladies 
of  America  v.  Weber,  101  111.  App.  488. 

A  by-law  may  be  created  and  made  bind- 
ing upon  the  members  by  custom;  Stafford 
v.  Banking  Co.,  16  Ohio  Cir.  Ct  50. 

A  by-law  which  is  acquiesced  in  for  eleven 
years  must  be  presumed  to  be  regularly 
adopted;  Marsh  v.  Mathias.  lit 
56  Pac.  1074;  and  by-laws  adopted  by  stock- 
holders but  not  by  an  expressed  vote  of  the 
directors  will  be  considered  as  adopted  by 
the  directors,  their  conduct  indicating  that 
they  regarded  them  as  the  by-laws  of  the 
corporation;  Graebner  v.  Post,  L19  Wl 
96  N.  W.  783,  100  Am.  St  Rep.  890. 

In  England  the  term  by-law  includes  any 
order,  rule  or  regulation  made  by  any  local 
authority  or  statutory  corporati'm  But* ordi- 
nate to  Parliament;  1  Odgers,  C.  L  91. 

Under  some  circumstances  an  action  may 
be  brought  upon  by-laws  against  members; 
Thomp.   Corp.   §  919. 

BY  THE  BYE.  Without  process.  A  dec- 
laration is  said  to  be  filed  by  the  bye  when 
it  is  filed  against  a  party  already  in  the  cus- 
tody of  the  court  under  process  in  another 
suit.  This  might  have  been  done,  formerly, 
where  the  party  was  under  arrest  and  tech- 
nically in  the  custody  of  the  court;  and  even 
giving  common  bail  was  a  sufficient  custody 
in  the  King's  Bench;  1  Sellon,  Pr.  228;  1 
Tidd.  Pr.  419.  It  is  no  longer  allowed ; 
Archhold,  New  Pr.  293. 


C.  The  third  letter  of  the  alphabet.  It 
was  used  among  the  Romans  to  denote  con- 
demnation, being  the  initial  letter  of  condem- 
no.     See  A. 

In  Rhode  Island  as  late  as  17S5  it  was 
branded  on  the  forehead  as  part  of  the  pun- 
ishment for  counterfeiting ;  Anderson,  Diet. 
Law. 

C.  A.  V.     See  Cobia  AnviSAEi  Vtxlt. 

C.  C.  An  abbreviation  of  cepi  corpus,  I 
have  taken  his  body. 

C.  C;  B.  B.  I  have  taken  his  body;  bail 
bond  entered.    See  Capias  ad  Respondendum. 

C.  C.  &.  C.  I  have  taken  his  body  and  he 
Is  held. 

C.  F.  &  I.  Letters  used  in  British  con- 
tracts for  cost,  freight  and  insurance,  indi- 
cating that  the  price  fixed  covers  not  only 
cost  but  freight  and  insurance  to  be  paid  by 
the  seller;  Benj.  Saies,  §  887;  L.  R.  8  Ex. 
179.  The  invoice  gives  the  buyer  credit  for 
the  freight  he  will  have  to  pay  on  delivery 
of  the  goods ;  L.  R.  5  H.  L.  395,  406.  A  con- 
tract for  a  shipment  of  iron  to  a  port  C.  F. 


&  I.  does  not  of  itself  import  a  delivery  at 
that  port;  7  II.  &  N.  574. 

C.  0.  D.  Collect  on  delivery.  Where  goods 
Shipped  are  thus  marked,  the  carrier  in  ad- 
dition to  his  ordinary  liabilities,  and  re- 
sponsibilities is  to  collect  the  amount  speci- 
fied by  the  consignor,  and  for  failure  to  re- 
turn to  him,  either  the  price  or  the  goods, 
he  has  a  right  of  action  on  the  contract 
against  the  carrier.  See  United  States  Exp. 
Co.  v.  Reefer,  59  Ind.  264;  State  v.  Intoxi- 
cating Liquors,  73  Me.  27S:  American  Mer- 
chants' Union  Exp.  Co.  v.  Schier,  55  111.  140; 
Collender  v.  Dinsmore,  55  N.  Y.  206,  14  Am. 
Rep.  224. 

Those  initials  have  acquired  a  fixed  and 
determinate  meaning,  which  courts  and  ju- 
ries may  recognize  from  their  general  infor- 
mation; State  v.  Intoxicating  Liquors,  73 
Me.  278. 

The  weight  of  authority  Is  said  by  Wll- 
liston (Sales  §  279)  to  support  the  view  that 
possession  only  is  to  be  retained  by  the  seller 
until  the  price  is  paid,  and  that  property 
passes  immediately  on  delivery  to  the  car- 


C.  O.  D. 


410 


CABINET 


rier,  which  view  he  prefers,  citing  U.  S.  v. 
Exp.  Co.,  119  Fed.  240;  Pilgreen  v.  State,  71 
Ala.  36S;  City  of  Carthage  v.  Munsell,  203 
111.  474,  67  N.  E.  831;  State  v.  Intoxicating 
Liquors,  98  Me.  464,  57  Atl.  798;  Higgins  v. 
Murray,  73  N.  Y.  252;  Coleman  v.  Lytle, 
49  Tex.  Civ.  App.  44,  107  S.  W.  562.  That 
property  does  not  pass,  see  The  Robert  W. 
Parsons,  191  U.  S.  41,  24  Sup.  Ct.  8,  48  L. 
Ed.  43;  State  v.  Exp.  Co.,  118  la.  447,  92 
N.  W.  66;  State  v.  Wingfield,  115  Mo.  428, 
22  S.  W.  363,  37  Am.  St.  Rep.  406;  State  v. 
O'Neil,  58  Vt.  140,  2  Atl.  586,  56  Am.  Rep. 
557.  To  the  same  effect  E.  M.  Brash  Cigar 
Co.  v.  Wilson,  32  Okl.  153,  121  Pac.  223; 
Guarantee  Title  &  Trust  Co.  v.  Bank,  185 
Fed.  373 ;  107  C.  C.  A.  429.  See  also  Harlan, 
J.,  dissenting,  in  O'Neil  v.  Vermont,  144  U. 
S.  323,  12  Sup.  Ct.  393,  36  L.  Ed.  450.  See 
cases  collected  in  4  Col.  L.  Rev.  541,  by  Prof. 
Gregory. 

See  Sales  ;  Delivery. 

CA.  SA.  An  abbreviation  of  capias  ad 
satisfaciendum,  q.  v. 

CABALLERIA.  In  Spanish  Law.  A  quan- 
tity of  land,  varying  in  extent  in  different 
provinces.  In  those  parts  of  the  United 
States  which  formerly  belonged  to  Spain, 
it  is  a  lot  of  one  hundred  feet  front,  two 
hundred  feet  depth,  and  equivalent  to  five 
peonias.  2  White,  New  Recop.  49;  12  Pet. 
(U.  S.)  444,  n. ;  Escriche,  Dice.  Raz. 

CABINET.  Certain  officers  who,  taken 
collectively,  form  a  council  or  advisory 
board ;  as  the  cabinet  of  the  president  of  the 
United  States,  which  is  composed  of  the 
secretary  of  state,  the  secretary  of  the  treas- 
ury, the  secretary  of  the  interior,  the  secre- 
tary of  war,  the  secretary  of  the  navy,  the 
secretary  of  agriculture,  the  attorney-gener- 
al, the  postmaster-general,  the  secretary  of 
commerce  and  the  secretary  of  labor.  See 
Departments. 

"The  president — not  the  cabinet — is  re- 
sponsible for  all  the  measures  of  the  admin- 
istration, and  whatever  is  done  by  one  of 
the  heads  of  department  is  considered  as 
done  by  the  president,  through  the  proper 
executive  agent;"  1  Cooley's  Bla.  Com.  232. 
The  cabinet,  as  such,  has  no  legal  existence. 
In  passing  the  act  (1913)  creating  the  depart- 
ment of  labor,  a  provision  that  the  incum- 
bent should  "be  a  member  of  the  cabinet" 
was  stricken  out. 

In  case  of  the  removal,  death,  resignation 
or  inability  of  both  the  president  and  vice- 
president  of  the  United  States,  then  the 
members  of  the  cabinet  shall  act  as  presi- 
dent until  such  disability  is  removed  or  a 
president  elected,  in  the  following  order: 
the  secretary  of  state,  secretary  of  the  treas- 
ury, secretary  of  war,  attorney-general,  post- 
master-general, secretary  of  the  navy,  and 
secretary  of  the  interior;  24  Stat.  L.  p.  1. 
No  provision  is  made  for  the  succession  of 


the   remaining   (and   more  recently   created) 
secretaries. 

These  officers  are  the  heads  of  their  re- 
spective departments ;  and  by  the  constitu- 
tion (art.  2,  sec.  2)  the  president  may  re- 
quire the  opinion  in  writing  of  these  officers 
upon  any  subject  relating  to  the  duties  of 
their  respective  departments.  These  officers 
respectively  have,  under  different  acts  of 
congress,  the  power  of  appointing  many  in- 
ferior officers  charged  with  duties  relating  to 
their  departments.  See  Const,  art.  2,  sec.  2. 
The  cabinet  meets  frequently  at  the  ex- 
ecutive mansion,  by  direction  of  the  presi- 
dent. No  record  of  its  doings  is  kept;  and 
it  has,  as  a  body,  no  legal  authority.  Its 
action  is  advisory  merely ;  and  the  presi- 
dent and  heads  of  departments  in  the  exe- 
cution of  their  official  duties  may  disregard 
the  advice  of  the  cabinet  and  take  the  re- 
sponsibility of  independent  action. 
See  Lerned,  The  President's  Cabinet. 
In  Great  Britain,  the  members  of  the 
Ministry  are  the  heads  of  various  executive 
departments  of  the  government.  The  Prime 
Minister  and  his  associates,  having  been  se- 
lected from  the  party  in  power  in  the  House 
of  Commons,  may  be  said  to  be  in  control 
of  the  House.  If  they  lose  their  majority  in 
the  House,  they  resign  office  in  a  body  and  a 
new  Ministry  is  then  chosen  from  the  new 
party  in  power. 

The  head  of  the  Cabinet  and  of  the  Min- 
istry is  the  Prime  Minister,  who  is  selected 
by  the  Crown.  He  chooses  his  colleagues, 
but  his  choice  really  extends  rather  to  the 
division  of  offices  and  to  the  choice  of  min- 
isters; he  is  in  effect  limited  to  the  promi- 
nent parliamentary  leaders  of  his  own  party. 
He  almost  invariably  holds  the  office  of  First 
Lord  of  the  Treasury,  unless  he  is  a  Peer, 
and  then  that  t>ffice  is  held  by  the  govern- 
ment leader  of  the  House  of  Commons.  His 
resignation  dissolves  the  Cabinet.  Other 
members  of  the  Cabinet  are:  Lord  Chancel- 
lor; the  Chancellor  of  the  Exchequer;  the 
five  Secretaries  of  State ;  the  First  Lord  of  the 
Admiralty ;  the  Lord  President  of  the  Council ; 
the  Lord  Privy  Seal ;  the  Attorney  General ; 
the  Presidents  of  the  Board  of  Trade,  the 
Local  Government  Board  and  the  Board  of 
Education  (of  late  years) ;  the  Chief  Secre- 
tary for  Ireland  (except  when  the  Lord  Lieu- 
tenant is  a  member) ;  the  Secretary  for  Scot- 
land; and  the  Chancellor  of  the  Duchy  of 
Lancaster  (usually).  The  President  of  the 
Board  of  Agriculture,  and  the  Postmaster 
General  are  often  members;  the  First  Com- 
missioner of  Works  and  the  Lord  Chan- 
cellor of  Ireland  (occasionally).  The  tenden- 
cy now  is  said  to  be  towards  including  the 
head  of  any  considerable  branch  of  the  ad- 
ministration.    Lowell,  Gov.  of  Engl. 

The  king,  under  the  British  constitution, 
is  irresponsible;  or,  as  the  phrase  is,  the 
king  can  do  no  wrong.    (See  that  title.)    The 


CABINET 


411 


CADI 


real  responsibility  of  government  in  that 
country,  therefore,  rests  with  his  ministers, 
some  of  whom  constitute  the  cabinet.  The 
king  may  dismiss  his  ministers  if  they  do 
not  possess  his  confidence;  but  they  are  sel- 
dom dismissed  by  the  king.  They  ordinarily 
resign  when  they  cannot  command  a  majori- 
ty in  favor  of  their  measures  in  the  house 
of  commons. 

CABOTAGE.  A  nautical  term  from  the 
Spanish,  denoting  strictly  navigation  from 
cape  to  cape  along  the  coast  without  going 
out  into  the  open  sea.  In  International  Law, 
cabotage  is  identified  with  coasting-trade  so 
that  it  means  navigating  and  trading  along 
the  coast  between  the  ports  thereof.  In  con- 
struing tbis  term  in  commercial  treaties  and 
International  Law  no  consideration  need  be 
given  to  the  fact  that  municipal  laws  some- 
times attach  a  meaning  absolutely  different 
from  that  it  has  or  can  have  in  Internation- 
al Law. 

It  is  the  universally  recognized  law  of  na- 
tions that  every  littoral  state  can  exclude 
foreign  merchantmen  from  the  cabotage  with- 
in the  maritime  belt,  just  as  it  can  exclude 
foreigners  from   the  fisheries  therein. 

In  commercial  treaties  the  meaning  of 
cabotage  has  been  stretched  so  as  to  exclude 
"sea-trade  between  any  two  ports  of  the  same 
country,  whether  on  the  same  coast  or  differ- 
ent coasts  (cabotage  petit  or  grand  cabotage), 
provided  always  that  the  different  coasts 
are  all  of  them  the  coasts  of  the  same 
country  as  a  political  and  geographical  unit." 
Thus  Russia  excludes  foreigners  from  trade 
between  Russian  ports  and  Vladivostok.  The 
United  States  makes  a  further  extension  of 
the  word  so  as  to  exclude  trade  between 
ports  of  the  United  States  proper  and  ports 
in  the  Philippines,  Porto  Rico  and  the  Ha- 
waiian Islands. 

CACICAZGOS.  In  Spanish  Law.  Lands 
held  in  entail  by  the  caciques  in  Indian  vil- 
lages in  Spanish  America. 

CADASTRE.  The  official  statement  of  the 
quantity  and  value  of  real  property  in  any 
district,  made  for  the  purpose  of  justly  ap- 
portioning the  taxes  payable  on  such  prop- 
erty. 12  Pet  (U.  S.)  428,  n. ;  3  Am.  St  Pap. 
679. 

CAD  ERE  (Lat).  To  fall ;  to  fail ;  to  end ; 
to  terminate. 

The  word  was  generally  used  to  denote  the  ter- 
mination or  failure  of  a  writ,  action,  complaint,  or 
attempt:  as,  cadit  actio  (the  action  fails),  cadit  as- 
sisa  (the  assise  abates),  cadere  causa  or  a  causa  (to 
lose  a  cause).  Abate  will  translate  cadere  as  often 
as  any  other  word,  the  general  signification  being, 
as  stated,  to  fail  or  cease.  Cadere  ab  actione  (liter- 
ally, to  fall  from  an  action),  to  fail  in  an  action  ; 
cadere  in  partem,  to  become  subject  to  a  division. 

To  become;  to  be  changed  to;  cadit  assisa 
in  juratam  (the  assize  has  become  a  jury). 
Calvinus,  Lex. 

CADET.  A  younger  brother.  One  trained 
for  the  army  or  navy. 


CADI.     A  Turkish  civil  magistrate. 

CADUCA  (Lat  cadere,  to  fall).  In  Civil 
Law.  An  inheritance;  an  escheat;  every 
thing  which  falls  to  the  legal  heir  by  descent 

Bona  caduca  are  said  to  be  those  to  which  no 
heir    succeeds,    equivalent  to   escheats.     Du    Cange. 

Glans  caduca,  "the  acorn  which  has  fallen  to  the 
ground,"  is  used  in  a  famous  judgment  of  Keke- 
wich,  J.,  in  [1902]  1  Ch.  847,  where  a  fund  in  court 
belonging  to  an  Austrian  intestate,  who  was  a 
bastard,  was  held  not  to  go  to  the  Austrian  govern- 
ment by  the  law  of  Austria,  but  to  the  British  crown 
by  the  law  of  England. 

CADUCARY.  Relating  to  or  of  the  nature 
of  escheat,  forfeiture  or  confiscation.  2  Bla_ 
Com.  245. 

C/£SARIAN  OPERATION.  A  surgical  op- 
eration whereby  the  fcetus,  which  can  neither 
make  its  way  into  the  world  by  the  ordinary 
and  natural  passage,  nor  be  extracted  by 
the  attempts  of  art,  whether  the  mother  and 
fcetus  be  yet  alive,  or  whether  either  of 
them  be  dead,  is  by  a  cautious  and  well-tim- 
ed operation  taken  from  the  mother  with  a 
view  to  save  the  lives  of  both,  or  either  of 
them. 

If  this  operation  be  performed  after  the 
mother's  death,  the  husband  cannot  be  ten- 
ant by  the  curtesy ;  since  his  right  begins 
from  the  birth  of  the  issue,  and  is  consum- 
mated by  the  death  of  the  wife ;  but  if  moth- 
er and  child  are  saved,  then  the  husband 
would  be  entitled  after  her  death.    Wharton. 

C/ETERIS  PARIBUS  (Lat).  Other  things 
being  equal. 

C/ETERORUM.    See  Administration. 

CALEFAGIUM.  A  right  to  take  fuel  year- 
ly.   Blount 

CALENDAR.  An  almanac. 
Julius  Caesar  ordained  that  the  Roman  year 
should  consist  of  three  hundred  and  sixty-five  days, 
except  every  fourth  year,  which  should  contain 
three  hundred  and  sixty-six— the  additional  day  to 
be  reckoned  by  counting  the  24th  day  of  February 
(which  was  the  6th  of  the  calends  of  March)  twice. 
See  Bissextile.  This  period  of  time  exceeds  the 
solar  year  by  eleven  minutes  or  thereabouts,  which 
amounts  to  the  error  of  a  day  in  about  one  hun- 
dred and  thirty-one  years.  In  1582  the  error  amount- 
ed to  eleven  days  or  more,  which  was  corrected  by 
Pope  Gregory.  Out  of  this  correction  grew  the  dis- 
tinction between  Old  and  New  Style.  The  Gregorian 
or  New  Style  was  introduced  into  England  in  1752, 
the  2d  day  of  September  (O.  S.)  of  that  year  being 
reckoned  as  the  14th  day  of  September  (N.  S.). 

A  list  of  causes  pending  in  a  court;  as 
court  calendar. 

In  Criminal  Law.  A  list  of  prisoners,  con- 
taining their  names,  the  time  when  they 
were  committed  ami  by  whom,  and  the  cause 
of  their  commitments. 

CALENDS.     See  Ides. 

CALIFORNIA.  The  eighteenth  state  ad- 
mitted to  the  Ijiion. 

In  1534  a  Portuguese  navigator  in  the  Spanish 
service  discovered  the  Gulf  of  California  and  pen- 
etrated into  the  mainland,  but  no  settlement  was 
made  until  about  a  century  afterwards,  when  the 
Franciscan  Fathers  planted  a  mission  on  the  site 
of  San  Diego  ;    other  settlements  soon  followed,  and 


CALIFORNIA 


412 


CALIFORNIA 


in  a  short  time  the  country  was  entirely  under  the 
control  of  the  priests,  who  accumulated  great  wealth. 
The  Spanish  power  in  the  territory  now  constituting 
California  was  overthrown  by  the  Mexican  revolu- 
tion in  1822,  and  the  secular  government  by  the 
priests  was  abolished.  By  the  treaty  of  Guadalupe 
Hidalgo,  May  30,  1848,  terminating  the  war  between 
the  United  States  and  Mexico,  the  latter  country 
ceded  to  the  United  States  for  $15,000,000  a  large 
tract  of  land  including  the  present  states  of  Cali- 
fornia, Nevada,  and  Utah,  and  part  of  Colorado  and 
Wyoming,  and  of  the  present  territories  of  Arizona 
and  New  Mexico,  and  the  whole  tract  was  called  the 
territory  of  New  Mexico. 

The  commanding  officer  of  the  U.  S.  forces  exer- 
cised the  duties  of  civil  governor  at  first,  but  June 
3,  1849,  Brigadier-General  Riley,  then  in  command, 
issued  a  proclamation  for  holding  an  election  Au- 
gust 1,  1849,  for  delegates  to  a  general  convention  to 
frame  a  state  constitution. 

The  convention  met  at  Monterey,  Sept.  1,  1849 ; 
adopted  a  constitution  on  October  10,  1849,  which 
was  ratified  by  a  vote  of  the  people,  November  13, 
1849.  At  the  same  time  an  election  was  held  for 
governor  and  other  state  officers,  and  two  members 
of  congress. 

The  first  legislature  met  at  San  Jose,  December 
15,  1849.  General  Riley,  on  December  20,  1849,  re- 
signed the  administration  of  civil  affairs  to  the 
newly  elected  officers  under  the  constitution,  and 
shortly  thereafter  two  United  States  senators  were 
elected. 

In  March,  1850,  the  senators  and  representatives 
submitted  to  congress  the  constitution,  with  a  me- 
morial asking  the  admission  of  the  state  into  the 
American  Union. 

On  September  9,  1850,  congress  passed  an  act  ad- 
mitting the  state  into  the  Union  on  an  equal  footing 
with  the  original  states,  and  allowing  her  two  repre- 
sentatives in  congress  until  an  apportionment  ac- 
cording to  an  actual  enumeration  of  the  inhabitants 
of  the  United  States.  The  third  section  of  the  act 
provides  for  the  admission,  upon  the  express  con- 
dition that  the  people  of  the  state,  through  their 
legislation  or  otherwise,  shall  never  interfere  with 
the  primary  disposal  of  the  public  lands  within  its 
limits,  and  shall  not  pass  any  law  or  do  any  act 
whereby  the  title  of  the  United  States  to  any  right 
to  dispose  of  the  same  shall  be  impaired  or  ques- 
tioned; and  that  they  shall  never  lay  any  tax  or 
assessment  of  any  description  whatsoever  upon  the 
public  domain  of  the  United  States,  and  that  in  no 
case  shall  non-resident  proprietors  who  are  citizens 
of  the  United  States  be  taxed  higher  than  residents; 
and  that  all  the  navigable  waters  within  the  state 
shall  be  common  highways,  and  forever  free,  as  well 
to  the  inhabitants  of  the  state  as  to  the  citizens  of 
the  United  States,  and  without  any  tax,  impost,  or 
duty    therefor. 

Congress  passed  an  act,  March  3,  1851,  to  ascertain 
and  settle  the  private  land  claims  in  the  state  of 
California.  By  this  act  a  board  of  commissioners 
was  created,  before  whom  every  person  claiming 
lands  in  California,  by  virtue  of  any  right  or  title 
derived  from  the  Spanish  or  Mexican  governments, 
was  required  to  present  his  claim,  together  with 
such  documentary  evidence  and  testimony  of  wit- 
nesses as  he  relied  upon.  From  the  decision  of  this 
board  an  appeal  might  be  taken  to  the  district  court 
of  the  United  States  for  the  district  in  which  the 
land  was  situated.  Both  the  board  and  the  court, 
on  passing  on  the  validity  of  any  claim,  were  re- 
quired to  be  governed  by  the  treaty  of  Guadalupe 
Hidalgo,  the  law  of  nations,  the  laws,  usages,  and 
customs  of  the  government  from  which  the  claim 
was  derived,  the  principles  of  equity,  and  the  de- 
cisions of  the  supreme  court  of  the  United  States. 
A  large  part  of  the  best  agricultural  lands  of  the 
state  was  claimed  under  Spanish  and  Mexican 
grants.  The  evidence  in  support  of  these  grants 
was  in  many  instances  meagre  and  unsatisfactory, 
and  the  amount  of  litigation  arising  therefrom  was 
enormous  and  has  not  yet  wholly  ceased.  The  board 
of  commissioners,  having  completed  its  work,  went 
out  of  existence. 
By  an  act  passed  September  28,  1850,  congress  de- 


clared all  laws  of  the  United  States,  not  locally  in- 
applicable, in  force  within  the  State. 

The  constitution  adopted  in  1849  was  amended 
November  4,  1856,  and  September  3,  1862,  and  on 
January  1,  1880,  was  superseded  by  the  present  con- 
stitution, which  had  been  framed  by  a  convention 
March  3,  1879,  and  adopted  by  popular  vote  May  7, 
1879.  It  was  further  amended  in  1898,  1902  and  1906. 
Section  1,  article  IV  amended  in  1911  by  providing 
for  initiative,  referendum  and  recall ;  section  1,  ar- 
ticle II,  amended  by  giving  right  of  equal  suffrage 
to  women  in  1912. 

CALL.  An  agreement  to  sell.  Treat  v. 
White,  181  U.  S.  264,  21  Sup.  Ct.  611,  45  L. 
Ed.  853. 

It  is  within  the  War  Revenue  Act  of  June 
13,  1898,  requiring  a  revenue  stamp  on  all 
sales  or  agreements  to  sell  or  memoranda  of 
sale  or  deliveries  or  transfers  of  stock;  id. 

CALL  DAY.  There  are  four  call  days  at 
the  Inns  of  Court  in  London:  In  January, 
May,  June  and  November. 

CALLING  THE  PLAINTIFF.  A  formal 
method  of  causing  a  nonsuit  to  be.  entered. 

When  a  plaintiff  perceives  that  he  has  not  given 
evidence  to  maintain  his  issue,  and  intends  to  be- 
come nonsuited,  he  withdraws  himself;  whereupon 
the  crier  is  ordered  to  call  the  plaintiff,  and  on  his 
failure  to  appear  he  becomes  nonsuited.  The  phrase 
"let  the  plaintiff  be  called,"  which  occurs  In  some 
of  the  earlier  state  reports,  is  to  be  explained  by 
reference  to  this  practice.  See  3  Bla.  Com.  376;  2  C. 
&  P.  403;  Porter  v.  Perkins,  5  Mass.  236,  4  Am. 
Dec.  52 ;  Trask  v.  Duval,  4  Wash.  C.  C.  97,  Fed. 
Cas.  No.  14,143 ;    Non  Dicit. 

CALLING  TO  THE  BAR.  Conferring  the 
degree  or  dignity  of  barrister  upon  a  mem- 
ber of  the  inns  of  court.    Holthouse,  Diet. 

"Calls  to  the  bench  and  bar  are  to  be  made 
by  the  most  ancient,  being  a  reader,  who  is 
present  at  supper  on  call  night."  1  Black 
Books  of  Lincoln's  Inn.  339.  But  see  Bae- 
eisteb  as  to  admission  to  the  bar. 

CALUMNIvE  JUSJURANDUM  (Lat).  The 
oath  against  calumny. 

Both  parties  at  the  beginning  of  a  suit,  In  certain 
cases,  were  obliged  to  take  an  oath  that  the  suit 
was  commenced  in  good  faith  and  in  a  firm  belief 
that  they  had  a  good  cause.  Bell,  Diet.  It  was  a 
fore-oath— before  suit  brought.  The  object  was  to 
prevent  vexatious  and  unnecessary  suits.  It  was 
especially  used  in  divorce  cases,  though  of  little 
practical  utility;  Bish.  Marr.  &  Div.  §  353;  2  Bish. 
Marr.  Div.  &  Sep.  §  264.  A  somewhat  similar  pro- 
vision is  to  be  found  in  the  requirement  made  in 
some  states  that  the  defendant  shall  file  an  affidavit 
of   merits. 

CALUMNIATORS.  In  Civil  Law.  Persons 
who  accuse  others,  whom  they  know  to  be 
innocent,  of  having  committed  crimes. 

CALVO  DOCTRINE.  The  doctrine  stated 
by  the  Argentine  jurist,  Carlos  Calvo,  that 
a  government  is  not  bound  to  indemnify 
aliens  for  losses  or  injuries  sustained  by 
them  in  consequence  of  domestic  disturb- 
ances or  civil  war,  where  the  state  is  not  at 
fault,  and  that  therefore  foreign  states  are 
not  justified  in  intervening,  by  force  or  oth- 
erwise, to  secure  the  settlement  of  claims  of 
their  citizens  on  account  of  such  losses  or  in- 
juries.   Such  intervention,  Calvo  says,  is  not 


CALVO  DOCTRINE 


413 


CANADA 


In  accordance  with  the  practice  of  European 
States  towards  one-another,  and  is  contrary 
to  the  principle  of  state  sovereignty.  3  Cal- 
vo  §§  1280,  1297.  The  Calvo  Doctrine  is  to 
be  distinguished  from  the  Drago  Doctrine 
(q.  v.). 

See  18  Green  Bag. 377. 

CAMBIALE  JUS.    The  law  of  exchange. 

CAMBIATORS.    See  Bank. 

CAM  BIO.    Exchange. 

C  AM  B I  PARTI  A.    Champerty. 

CAMBIPARTICEPS.     A  champertor. 

CAMBIST.  A  person  skilled  in  exchange; 
one  who  deals  or  trades  in  promissory  notes 
or  bills  of  exchange ;  a  broker. 

CAMBIUM.  Change,  exchange.  Applied 
in  the  civil  law  to  exchange  of  lands,  as  well 
as  of  money  or  debts.    Du  Cange. 

Cambium  reale  or  manuale  was  the  term  generally 
used  to  denote  the  technical  common-law  exchange 
of  lauds;  cambium  locale,  mercantile,  or  trajec- 
titium,  was  used  to  designate  the  modern  mercan- 
tile contract  of  exchange,  whereby  a  man  agrees,  In 
consideration  of  a  sum  of  money  paid  him  in  one 
place,  to  pay  a  like  sum  in  another  place.  Pothier, 
de  Change,  n.  12;    Story,  Bills  §  2. 

CAMERA.     See  In  Camera. 

CAMERA  REGIS.  In  old  English  law  a 
chamber  of  the  king;  a  place  of  peculiar 
privileges  especially  in  a  commercial  point 
of  view.  The  city  of  London  was  so  called. 
Year  Book,  p.  7,  Hen.  VI.  27;  Burrill,  Law 
Die. 

CAMERA  SCACCARII.  The  Exchequer 
Chamber.     Spelman,  Gloss. 

CAMERA  STELLATA.    The  Star  Chamber. 

CAMERARIUS.  A  chamberlain ;  a  keeper 
of  the  public  money ;  a  treasurer.  Spelman, 
Gloss.  Cambellarius;  1  Perr.  &  D.  243. 

CAMPARTUM.  A  part  or  portion  of  a 
larger  field  or  ground,  which  would  other- 
wise be  in  gross  or  in  common.  See  Cham- 
perty. 

CAMPERTUM.  A  cornfield;  a  field  of 
grain.     Cowell ;    Whishaw. 

CAMPUM  PARTERE.  To  divide  the  land. 
See  Champerty. 

CAMPUS  (Lat.  a  field).  In  old  European 
law  an  assembly  of  the  people  so  called  from 
being  held  in  the  open  air,  in  some  plain 
capable  of  containing  a  large  number  of  per- 
sons.    1  Robertson's  Charles  V.  App.  n.  38. 

In  feudal  or  old  English  law  a  field  or 
plain.     Burrill,  Law  Diet 

CANADA.  The  name  given  to  a  confed- 
eration of  all  the  British  possessions  in 
North  America  except  Newfoundland. 

The  first  explorations  of  this  country,  of  which 
any  authentic  information  exists,  were  by  Jacques 
Cartier,  between  the  years  1534  and  1554,  thus  giv- 
ing to  France  the  first  claim  upon  its  territory. 
Great  activity  was  shown  during  these  and  the  suc- 
ceeding   years    on   the    part   of    Great    Britain    and 


France  to  acquire  territorial  jurisdiction  on  the 
newly  discovered  continent,  and  the  division  lines 
between  their  acquisitions  were  not  very  clearly 
maikt-d.  Those  of  France  included  Florida  in  the 
south  and  the'lands  watered  by  the  St.  Lawrence  in 
the  north,  and  to  it  all  the  name  of  "New  France" 
was  given.  In  1603  an  expedition  for  trading  pur- 
poses was  fitted  out  under  the  command  of  Samuel 
Champlain,  whose  explorations  up  the  river  St. 
Lawrence  and  its  tributary,  the  Richelieu  River, 
brought  him  to  the  lake  which  still  bears  bis  name. 

The  viceroyalty  of  New  France  was  conferred  in 
1612  upon  the  Prince  de  Conde,  who  made  a  formal 
assignment  of  it  in  1619  to  Admiral  Montmorency, 
who  personally  visited  the  country. 

In  1628,  under  the  rule  of  Cardinal  Richelieu  in 
France,  the  colony  was  ceded  to  "La  Compagnie  de 
Cunts  Associ6s"  (The  Company  of  the  One  Hundred 
Associates),  a  trading  company,  but  armed,  like  the 
Hudson  Bay  Company  in  later  years,  with  full  pow- 
er for  the  administration  of  justice  in  the  primitive 
forms  practicable  in  new  countries  and  with  mixed 
populations. 

This  company  had  an  unsuccessful  career  finan- 
cially, and  upon  its  disorganization,  in  1663,  Louis 
XIV.  resumed  territorial  jurisdiction  over  the  col- 
ony, and  in  April  of  that  year  published  an  edict 
establishing  a  "Sovereign  Council"  for  the  govern- 
ment of  Canada,  and  this  council  was  specially  in- 
structed to  prepare  laws  and  ordinances  for  the  ad- 
ministration of  justice,  framed  as  much  as  possible 
upon  those  then  in  force  in  France  under  the  pro- 
visions of  the   "Custom  of  Paris." 

For  more  than  one  hundred  years  all  the  legal 
business  of  the  province  was  determined  by  this 
council — in  fact,  until  the  conquest  by  the  English 
in  1759.  By  the  terms  of  the  capitulation,  It  was 
stipulated  and  conceded  that  the  ancient  laws  of 
land  tenure  should  continue  to  subsist,  but  it  was 
understood  that  the  English  criminal  and  com- 
mercial  law  should  be  introduced  and  adopted. 

Under  this  stipulation  the  law  of  France,  as  it 
existed  In  1759,  was  recognized  as  the  civil  law  of 
Canada,  and  has  always  since  formed  the  basis  of 
that  law — modified,  of  course,  after  the  subsequent 
establishment  of  a  representative  government  in  the 
colony,  by  the  statutory  provisions  of  the  colonial 
parliaments.  This  result  was  applicable,  however, 
only  to  that  section  of  the  country  which  subse- 
quently was  called  Lower  Canada,  now  the  province 
of  Quebec.  The  portion  of  the  colony  since  known 
as  the  province  of  Upper  Canada  (now  the  province 
of  Ontario)  was  then  unsettled,  and  being  subse- 
quently colonized  from  Great  Britain  and  her  other 
dependencies,  the  whole  body  of  law,  civil  as  well 
as  criminal,  was  based  upon  that  in  force  in  Eng- 
land. 

Under  the  provisions  of  a  statute  passed  by  the 
imperial  parliament  of  Great  Britain  in  1774,  called 
"The  Quebec  Act,"  a  legislative  council  of  twenty- 
three  members  was  established  for  the  province, 
with  power  to  enact  laws.  In  1791,  Pitt  Introduced 
the  bill  into  the  English  House  of  Commons  which 
gave  a  constitution  to  Canada  and  divided  It  Into 
the  two  provinces  of  Upper  and  Lower  Canada. 
Since  then  (with  the  short  interregnum  from  1837  to 
1841),  regular  parliaments  have  been  held,  at  which 
the  jurisprudence  of  the  country  and  the  establish- 
ment of  its  courts  have  been  determined  by  formal 
acts. 

In  1S67,  the  confederation  of  the  different  North 
American  dependencies  of  Great  Britain,  under  the 
name  of  the  "Dominion  of  Canada,"  was  consum- 
mated by  an  act  of  the  imperial  parliament,  at  the 
instance  and  request  of  the  different  provinces, 
including  Upper  and  Lower  Canada  (under  the 
names  of  Ontario  and  Quebec),  New  Brunswick,  and 
Nova  Scotia,  to  which  have  since  been  added  Prince 
Edward  Island,  Manitoba,  and  British  Columbia 
(all  the  provinces  except  Newfoundland).  The  act 
under  which  this  confederation  was  established — 
called  The  British  North  American  Act  (in  effect 
July  1,  1868)— contains  the  provisions  of  a  written 
constitution,  under  which  the  executive  government 
and  authority  is  declared  to  be  vested  in  the  sover- 


CANADA 


414 


CANAL 


eign  of  Great  Britain,  whose  powers  are  deputed  to 
a  governor-general,  nominated  by  the  imperial  gov- 
ernment, but  whose  salary  is  paid  by  the  Dominion. 
The  form  of  government  is  modelled  after  that  of 
Great  Britain.  The  governor-general  acts  under 
the  guidance  of  a  council,  nominally  selected  by 
himself,  but  which  must  be  able  to  command  the 
support  of  a  majority  in  that  branch  of  parliament 
which  represents  the  suffrages  of  the  electors. 

The  Judicial  Power— There  is  a  supreme  court 
with  ultimate  jurisdiction  in  matters  affecting  the 
Dominion  and  as  a  final  court  of  appeal  from  the 
provincial  courts.  It  consists  of  a  chief  justice  and 
five  puisne  judges,  and  holds  three  sessions  a  year 
at  Ottawa.  The  exchequer  court  can  hold  sessions 
at  any  town,  and  is  a  colonial  court  of  admiralty 
and  exercises  admiralty  jurisdiction  throughout 
Canada  and  the  waters  thereof.  Certain  local  judg- 
es of  admiralty  are  created  with  limited  jurisdic- 
tion, the  appeal  from  whose  decisions  lies  to  the 
Court  of  Exchequer,  or  it  may  lie  direct  to  the  Su- 
preme Court  of  Canada  under  certain  conditions. 

CANAL.  An  artificial  cut  or  trench  in 
the  earth,  for  conducting  and  confining  wa- 
ter to  be  used  for  transportation.  See  Bish- 
op v.  Seeley,  18  Conn.  394. 

Public  canals  originate  under  statutes  and 
charters  enacted  to  authorize  their  construc- 
tion and  to  protect  and  regulate  their  use. 
They  are  in  this  country  constructed  and 
managed  either  by  the  state  itself  or  by  com- 
panies incorporated  for  the  purpose.  These 
commissioners  and  companies  are  armed  with 
authority  to  appropriate  private  property  for 
the  construction  of  their  canals,  in  exercis- 
ing which  they  are  bound  to  a  strict  com- 
pliance with  the  statutes  by  which  it  is  con- 
ferred. Where  private  property  is  thus  tak- 
en,  it  must  be  paid  for  in  gold  and  silver; 
State  v.  Beackmo,  8  Blackf.  (Ind.)  246.  Such 
payment  need  not  precede  or  be  cotempo- 
raneous  with  the  taking;  Rogers  v.  Brad- 
shaw,  20  Johns.  (N.  Y.)  735;  Hankins  v. 
Lawrence,  8  Blackf.  (Ind.)  266;  though,  if 
postponed,  the  proprietor  of  the  land  taken 
is  entitled  to  interest:  People  v.  Canal 
Com'rs,  5  Denio  (N.  Y.)  401 ;  Harness  v.  Canal 
Co.,  1  Md.  Ch.  Dec.  248.  A  city  through 
which  a  canal  passes  cannot  construct  levees 
along  its  banks  and  recover  the  cost  thereof 
from  the  canal  company;  City  of  New  Or- 
leans v.  Canal  &  Nav.  Co.,  42  La.  Ann.  6,  7 
South.  63. 

After  the  appropriation  of  land  for  a 
canal,  duly  made  under  statute  authority, 
though  the  title  remains  in  the  original  own- 
er until  he  is  paid  therefor,  he'  cannot  sus- 
tain an  action  against  the  party  taking  the 
same  for  any  injury  thereto ;  Turrell  v,  Nor- 
man, 19  Barb.  (N.  Y.)  263 ;  Ligat  v.  Com.,  19 
Pa.  456.  But  if  there  be  a  deviation  from 
the  statute  authority,  the  statute  is  no  pro- 
tection against  suits  by  persons  injured  by 
such  deviation;  Lynch  v.  Stone,  4  Denio  (N. 
Y.)  356 ;  Farnum  v.  Canal  Corp.,  1  Sumn.  46, 
Fed.  Cas.  No.  4,675;  2  Dow.  519.  Though  a 
special  remedy  for  damages  be  given  by  a 
statute  authorizing  the  construction  of  a 
canal,  the  party  injured  thereby  is  not  bar- 
red of  his  common-law  action ;   Denslow  v. 


New  Haven  &  N.  Co.,  16  Conn.  98.  But  see, 
to  the  contrary,  Stevens  v.  Canal,  12  Mass. 
466 ;  Town  of  Lebanon  v.  Olcott,  1  N.  H.  339. 
The  legislature  has  the  exclusive  power  to 
determine  when  land  may  be  taken  for  a 
canal  or  other  public  use,  and  the  courts  can- 
not review  its  determination  in  that  respect ; 
Harris  v.  Thompson,  9  Barb.  (N.  Y.)  350; 
Hankins  v.  Lawrence,  8  Blackf.  (Ind.)  266. 
In  navigating  canals,  it  is  the  duty  of  the 
canal-boats  to  exercise  due  care  in  avoiding 
collisions,  and  in  affording  each  other  mu- 
tual accommodation ;  and  for  any  injury  re- 
sulting from  the  neglect  of  such  care  the 
proprietors  of  the  boats  are  liable  in  dam- 
ages ;  1  Sher.  &  Redf.  Neg.  404 ;  Rathbun  v. 
Payne,  19  Wend.  (N.  Y.)  399 ;  Sheerer  v.  Kis- 
singer, 1  Pa.  44.  The  proprietors  of  the 
canal  will  be  liable  for  any  injury  to  canal- 
boats  occasioned  by  a  neglect  on  their  part 
to  keep  the  canal  in  proper  repair  and  free 
from  obstructions;  Riddle  v.  Proprietors,  7 
Mass.  169,  5  Am.  Dec.  35;  James  River  & 
Kanawha  Co.  v.  Early,  13  Gratt.  (Va.)  541; 
Muir  v.  Canal  Co.,  8  Dana  (Ky.)  161 ;  Moore 
v.  Canal,  7  Ind.  462;  Griffith  v.  Follett,  20 
Barb.  (N.  Y.)  620 ;  11  A.  &  E.  223.  Where  a 
state  exercises  control  over  a  canal,  it  is  lia- 
ble for  injuries  caused  by  an  officer's  negli- 
gence in  failing  to  repair  bridges  over  it; 
Woodman  v.  People,  127  N.  Y.  397,  28  N.  E. 
20. 

In  regard  to  the  right  of  the  proprietors  of 
canals  to  tolls,  the  rule  is  that  they  are  only 
entitled  to  take  them  as  authorized  by  stat- 
ute, and  that  any  ambiguity  in  the  terms  of 
the  statute  must  operate  in  favor  of  the 
public;  2  B.  &  Ad.  792;  Perrine  v.  Canal 
Co.,  9  How.  (U.  S.)  172,  13  L.  Ed.  92 ;  Myers 
v.  Foster,  6  Cow.  (N.  Y.)  567;  Delaware  & 
H.  Canal  Co.  v.  Coal  Co.,  21  Pa.  131.  A  stat- 
utory authority  to  charge  tolls  upon  boats, 
etc.,  used  for  transportation  along  it  gives 
no  authority  to  charge  tolls  on  tugs  while 
towing  vessels  through  the  canal  or  on  the 
return  trip;  Sturgeon  Bay  Harbor  Co.  v. 
Leatham,  164  111.  239,  45  N.  E.  422. 

A  canal  constructed  and  maintained  at 
private  expense  is  like  a  private  highway 
over  which  the  public  is  permitted  to  travel, 
but  in  which  it  obtains  no  vested  right ;  Pot- 
ter v.  Jly.  Co.,  95  Mich.  3S9,  54  N.  W.  956. 

An  easement  in  the  waters  of  state  canals 
cannot  be  acquired  by  prescription;  Bur- 
bank  v.  Fay,  65  N.  Y.  57. 

CANAL  ZONE.    See  Panama  Canal. 

CANCELLARIA.  Chancery;  the  court  of 
chancery.  Curia  cancellaria  is  also  used  in 
the  same  sense.    See  4  Bla.  Com.  46 ;   Cowell. 

CANCELLARIUS  (Lat).     A  chancellor. 

In  ancient  law,  a  janitor  or  one  who  stood 
at  the  door  of  the  court  and  was  accustomed 
to  carry  out  the  commands  of  the  judges; 
afterwards  a  secretary ;  a  scribe ;  a  notary. 
Du  Cange. 


CANCELLAIUUS 


415 


CANCELLAR1US 


In  early  English  law,  the  keeper  of  the 
king's  seal. 

The  office  of  chancellor  Is  of  Roman  origin.  He 
appears  at  first  to  have  been  a  chief  scribe  or  sec- 
retary, but  was  afterwards  invested  with  judicial 
power,  and  had  superintendence  over  the  other 
officers  of  the  empire.  From  the  Romans  the  title 
and  office  passed  to  the  church  ;  and  therefore  ev- 
ery bishop  of  the  Catholic  church  has,  to  this  day, 
his  chancellor,  the  principal  judge  of  his  consistory. 
In  ecclesiastical  matters  it  was  the  duty  of  tl 
cellarius  to  take  charge  of  all  matters  relating  to 
the  books  of  the  church,— acting  as  librarian  ;  to 
correct  the  laws,  comparing  the  various  readings, 
and  also  to  take  charge  of  the  seal  of  the  church, 
affixing  it  when  necessary  in  the  business  of  the 
church. 

When  the  modern  kingdoms  of  Europe  were  es- 
tablished upon  the  ruins  of  the  empire,  almost 
every  state  preserved  its  chancellor,  with  different 
jurisdictions  and  dignities,  according  to  their  dif- 
ferent constitutions.  In  all  he  seems  to  have  had  a 
supervision  of  all  charters,  letters,  and  such  other 
public  instruments  of  the  crown  as  were  authenti- 
cated in  the  most  solemn  manner ;  and  when  seals 
came  into  use,  he  had  the  custody  of  the  public  seal. 

According  to  Du  Cange  it  was  under  the  reign  of 
the  Merovingian  kings  in  France  that  the  cancel- 
larii  first  obtained  the  dignity  corresponding  with 
that  of  the  English  chancellor,  and  became  keepers 
of  the  king's  seal. 

In  this  latter  sense  only  of  keeper  of  the  seal,  the 
word  chancellor,  derived  hence,  seems  to  have  been 
used  in  the  English  law ;    3  Bla.  Com.  46. 

The  origin  of  the  word  has  been  much  disputed; 
but  it  seems  probable  that  the  meaning  assigned  by 
Du  Cange  is  correct,  who  says  that  the  cancellarii 
were  originally  the  keepers  of  the  gate  of  the  king's 
tribunal,  and  who  carried  out  the  commands  of  the 
judges.  Under  the  civil  law  their  duties  were  va- 
ried, and  gave  rise  to  a  great  variety  of  names,  as 
notarius,  a  notis,  abactis,  secretarius,  a  secretis, 
a  cancellis,  a  responses,  a  Wbellis,  generally  derived 
from  their  duties  as  keepers  and  correctors  of  the 
statutes  and  decisions  of  the  tribunals. 

The  transition  from  keeper  of  the  seal  of  the 
church  to  keeper  of  the  king's  seal  would  be  natu- 
ral and  easy  in  an  age  when  the  clergy  were  the 
only  persons  of  education  sufficient  to  read  the 
documents  to  which  the  seal  was  to  be  appended. 
And  this  latter  sense  is  the  one  which  has  remained 
and  been  perpetuated  in  the  English  word  Chancel- 
lor. See  Du  Cange;  Spelman,  Gloss.;  Spence,  Eq. 
Jur.  78 ;    3  Bla.  Com.  46. 

It  was  an  evolution  which  passed  through  several 
stages,  the  first  of  which  had  its  origin  in  the  pe- 
riod when  the  king  was  actually  as  well  as  theoret- 
ically the  fountain  of  justice  and  equity.  At  first  he 
personally  heard  their  complaints  and  administered 
justice  to  his  subjects. 

It  was,  however,  after  the  growth  of  the  popula- 
tion had  increased  the  applications  to  the  king  for 
the  redress  of  grievances  to  such  an  extent  as  to  re- 
quire him  to  seek  assistance,  that  the  officer  after- 
wards called  chancellor  appeared.  He  was  then  a 
scribe  to  whom  were  referred  the  complaints  made, 
and  it  was  his  duty  to  determine  if  they  should  be 
entertained  and  the  form  of  writ  adapted  to  the 
case.  Thus  what  was  afterwards  the  primary  duty 
of  the  chancellor  was  devolved  upon,  this  officer, 
called  the  referendarius,  and  known  by  this  title, 
according  to  Selden,  during  the  reign  of  Ethelbert 
and  subsequent  kings  to  Edred.  To  separate  and 
protect  them  from  the  suitors  this  officer  and  his 
assistants  sat  by  a  lattice,  the  laths  of  which  were 
called  cancelli,  and  to  this  commentators  ascribe  the 
origin  of  the  word  cancellarius,  which  was  used  in 
the  reign  of  the  Confessor  and  is  not  clearly  traced 
to  an  earlier  date.  At  that  time  little  more  appears 
than  that  he  was  an  officer  who  issued  writs,  but 
during  Anglo-Saxon  times  he  seems  to  have  been 
little  more,  and  the  charter  of  Westminster  shows 
his  precedence  at  that  time  to  have  been  after  two 
archbishops,  nine  bishops,  and  seven  abbots,  though 
now   the    lord   chancellor   is    second   only   after   the 


royal  family.  True,  it  is  said  by  Ingulphus  that 
Edward  the  Elder  appointed  Torquatel  his  chancel- 
lor, so  that  whatever  business  of  the  king,  spiritual 
or  temporal,  required  a  decision,  should  be  decided 
by  his  advice  and  decree,  and,  being  so  decided,  the 
decree  should  be  held  irrevocable ;  Spence,  Eq.  Jur. 
78,  n.  Nevertheless  there  does  not  seem  to  have  been 
at  that  period  a  conception  of  the  office  as  one  main- 
tained for  the  exercise  of  judicial  functions.  Ac- 
cording to  Pollock  and  Maitland,  "even  in  Edward 
I.'s  reign  it  is  not  in  our  view  a  court  of  justice; 
it  does  not  hear  and  determine  causes.  It  was  a 
great  secretarial  bureau,  a  home  office,  a  foreign  of- 
fice, and  a  ministry  of  justice;"  1  Hist.  Eng.  Law 
17.'. 

The  chancellor's  jurisdiction  was  an  off-shoot  from 
that  of  the  king's  council.  It  does  not  appear  that 
he  had  any  individual  judicial  functions  otherwise 
than  as  one  of  the  council;  he  certainly  acquired 
power  to  sit  alone,  or  had  it  confirmed,  in  1349,  but 
this  did  not  forthwith  exclude  the  older  practice. 
Pollock,  Expans.   of  C.   L.   68. 

But  whatever  the  origin  of  the  title,  it  is  not  diffi- 
cult to  apprehend  the  development  of  the  janitor 
or  keeper  of  the  gate,  acting  as  intermediary  be- 
tween the  suitor  and  the  king  or  judge,  into  the 
officer  whose  judgment  was  relied  on  in  dealing 
with  the  petition,  and  how  the  original  scribe  or 
referendarius,  exercising  at  first  clerical  functions, 
but  selected  for  them  because  it  required  legal 
learning  to  discharge  them,  gradually  developed 
into  the  chancellor  of  modern  conception,  holding 
the  seal  and  representing  the  conscience  of  the 
king.  The  fact  that  it  is  an  evolution  is  clear,  how- 
ever obscure  and  difficult  to  trace  are  some  of  its 
successive  stages. 

Lord  Ellesmere,  who  is  practically  the  first  chan- 
cellor whose  decrees  have  come  down  to  us,  was  the 
most  conspicuous  representative  of  the  period  of  the 
Tudors  and  the  first  Stuarts.  He  did  much  towards 
settling  the  practice  and  procedure  of  the  court.  He 
successfully  fought  the  great  fight  with  Coke  over 
the  supremacy  of  the  chancellor's  writ  of  injunction, 
and  during  the  period  from  Ellesmere  to  the  Resto- 
ration the  real  foundation  was  laid  of  an  equitable 
system  modifying  ancient  common  law  principles 
and  practices  which  no  longer  agreed  with  current 
views  of  justice;  15  Harv.  L.  Rev.  110.  Instances 
of  specific  relief,  under  what  became  in  after  times 
the  great  heads  of  equity,  may  nevertheless  be 
found  at  a  surprisingly  early  day.  The  editor  of 
the  Selden  Society's  volume  of  Select  Cases  in  Chan- 
cery gives  the  following  list  of  the  earliest  cases: 
Accident,  after  1398;  account,  1385 ;  cancellation 
and  delivery  of  instruments,  1237  ;  charities,  after 
1393  ;  discovery,  1415-17  ;  dower,  1393  ;  duress,  1337  ; 
fraud,  13S6;  injunctions,  1396-1403;  mistake,  1417--4; 
mortgage,  1456;  partition,  1423-43;  perpetuation  of 
testimony,  1486-1500;  rescission  of  contract,  1396- 
1403  ;  specific  performance,  after  1398;  trusts,  after 
1393  ;    waste,  1461-67  ;    wills,  after  1393. 

In  his  efforts  to  establish  some  sort  of  fixed  prac- 
tice, Lord  Ellesmere  frequently  referred  to  prece- 
dents, but  numerous  instances  of  his  vicarious 
charity  reveal  the  latitude  of  his  discretion.  In  the 
Earl  of  Oxford's  Case,  2  W.  &  T.  644,  he  expressly 
claimed  the  power  to  legislate  on  individual  rights. 

The  Restoration,  or  rather  the  chancellorship  of 
Lord  Nottingham,  marks  an  epoch  in  the  history  of 
equity,  of  which  he  has  been  justly  called  the  "fa- 
ther." The  interference  of  the  chancellors  had  been 
instrumental  in  bringing  about,  through  legislation 
and  otherwise,  a  steady  improvement  in  common 
law  practice  and  procedure,  and  the  necessity  for 
further  intervention,  except  where  there  was  an 
avowed  divergence  between  the  two  systems,  had 
become  rare.  Then  the  abolition  of  the  incidents  of 
feudal  tenure  by  the  Restoration  Parliament  intro- 
duced a  system  of  real  property  which  continued 
almost  to  the  reign  of  Victoria.  Controversies  aris- 
ing out  of  these  new  methods  of  conveyancing  and 
settlement  naturally  found  their  way  into  chancery, 
where  alone  trusts  and  equities  of  redemption  were 
recognized  and  contracts  specifically  enforced;  and 
the  contemporaneous  abolition  of  the  Court  of  Wards 


CANCELLAR1US 


416 


CANCELLATION 


ultimately  turned  the  guardianship  of  the  estates 
of  infants  into  chancery.  Moreover,  the  searching 
investigations  which  had  been  made  during  the  Com- 
monwealth exercised  a  powerful  influence  in  the 
direction  of  reform  in  procedure.  All  these  influ- 
ences combined  to  form  a  new  era  in  equity.  Prior 
to  the  Restoration,  it  could  be  said  with  entire  ac- 
curacy that  the  "grand  reason  for  the  interference 
of  a  court  of  equity  is  the  imperfection  of  the  legal 
remedy  in  consequence  of  the  universality  of  legis- 
lative provisions."  But  during  the  period  from 
Nottingham  to  Eldon  the  chancellor  was  chiefly  oc- 
cupied with  the  adjudication  and  administration  of 
proprietary  rights.  At  the  close  of  Lord  Eldon's 
service,  equity  was  no  longer  a  system  corrective 
of  the  common  law ;  its  principles  were  no  less  uni- 
versal than  those  of  the  common  law.  It  could  be 
described  only  as  that  part  of  remedial  justice 
which  was  administered  in  chancery;  its  work  was 
administrative  and  protective,  as  contrasted  with 
the  remedial  and  retributive  justice  of  the  common 
law.    See  15  Harv.  L.  Rev.  109. 

See  4  Co.  Inst.  78 ;  Dugdale  Orig.  Jur.  fol.  34 ;  and 
generally  Selden,  Discourses;  Inderwick,  King's 
Peace;  3  Steph.  Com.  346;  1  Poll.  &  Maitl.  172;  1 
Stubbs,  Const.  Hist.  3S1;  Campbell,  Lives  of  the 
Lord  Chancellors,  vol.  1 ;  Holdsw.  Hist.  B.  L. ;  Pol- 
lock, Expans.  of  C.  L.     See  Chancellor;    Equity. 

CANCELLATION.  The  act  of  crossing 
out  a  writing.  The  manual  operation  of 
tearing  or  destroying  a  written  instrument; 
1  Eq.  Cas.  Abr.  409. 

The  statute  of  frauds  provides  that  the 
revocation  of  a  will  by  cancellation  must  be 
by  the  "testator  himself,  or  in  his  presence 
and  by  his  direction  and  consent."  This  pro- 
vision is  in  force  in  many  of  the  states;  1 
Jarm.  Wills  (3d  Am.  ed.)  *113  n.  In  order 
that  a  revocation  may  be  effected,  it  must  be 
proved  to  have  been  done  according  to  the 
statute;  Delafleld  v.  Parish,  25  N.  Y.  79; 
Heise  v.  Heise,  31  Pa.  246;  Spoonemore  v. 
Cables,  66  Mo.  579;  Barker  v.  Bell,  46  Ala. 
216;  declarations  of  a  testator  are  not  suffi- 
cient; Lewis  v.  Lewis,  2  W.  &  S.  (Pa.)  455; 
Wittman  v.  Goodhand,  26  Md.  95;  Jackson 
v.  Kniffen,  2  Johns.  (N.  Y.)  31,  3  Am.  Dec. 
390. 

Cancelling  a  will,  animo  revocandi,  is  a 
revocation ;  and  the  destruction  or  oblitera- 
tion need  not  be  complete;  3  B.  &  Aid.  489; 
Avery  v.  Pixley,  4  Mass.  462;  Card  v.  Grin- 
man,  5  Conn.  168;  Burns  v.  Burns,  4  S.  &  R. 
(Pa.)  567.  It  must  be  done  animo  revocandi; 
Schoul.  Wills  384;  Wolf  v.  Bollinger,  62  111. 
368;  'Dickey  v.  Malechi,  6  Mo.  177,  34  Am. 
Dec.  130 ;  and  evidence  is  admissible  to  show 
with  what  intention  the  act  was  done;  Jack- 
son v.  Hollo  way,  7  Johns.  (N.  Y.)  394;  Hatch 
v.  Hatch,  9  Mass.  307,  6  Am.  Dec.  67;  Bots- 
ford  v.  Morehouse,  4  Conn.  550;  Corliss  v. 
Corliss,  8  Vt.  373 ;  Tomson  v.  Ward,  1  N.  H. 
9;  Burns  v.  Burns,  4  S.  &  R.  (Pa.)  297;  Bates 
v.  Holman,  3  Hen.  &  M.  (Va.)  502;  Carroll's 
Lessee  v.  Llewellin,  1  Harr.  &  McH.  (Md.) 
162;  4  Kent  531;  Collagan  v.  Burns,  57  Me. 
449;  Harring  v.  Allen,  25  Mich.  505;  Durant 
v.  Ashmore,  2  Rich.  (S.  C.)  184;  Patterson 
v.  Hickey,  32  Ga.  156.  Accidental  cancella- 
tion is  not  a  revocation;  Smock  v.  Smock, 
11  N.  J.  Eq.  156.  Where  the  first  few  lines 
of  a  will  were  cut  off,  the  remainder,  which 


was  complete,  was  admitted  to  probate;  L, 
R,  2  P.  &  D.  206.  Partial  cancellation,  with 
proof  of  an  animus  revocandi,  will  revoke  a 
will ;  Bohanon  v.  Walcot,  1  How.  (Miss.) 
336,  29  Am.  Dec.  631;  and  when  more  than 
one-third  of  the  items  were  cancelled,  leav- 
ing the  remainder  unintelligible  and  repug- 
nant, the  will  was  held  to  be  revoked;  Dam- 
mann  v.  Dammann  (Md.)  28  Atl.  408.  Where 
the  testator  wrote  on  his  will  "This  will  is 
invalid,"  held  a  revocation;  Witter  v.  Mott,  2 
Conn.  67. 

Cancellation  by  an  insane  man  will  not 
revoke  a  valid  will;  In  re  Forman's  Will,  54 
Barb.  (N.  Y.)  274;  Ford  v.  Ford,  7  Humphr. 
(Tenn.)  92.  See  Laughton  v.  Atkins,  1  Pick. 
(Mass.)  535;  Farr  v.  O'Neall,  1  Rich.  (S.  C.) 
80. 

In  Louisiana  it  requires  a  written  instru- 
ment executed  with  formalities  to  revoke 
a  will,  hence  placing  it  among  waste  paper 
and  refusal  to  receive  it  after  attention  was 
called  to  it,  and  an  unsuccessful  attempt  to 
make  a  new  will,  were  held  to  be  no  can- 
cellation; Succession  of  Hill,  47  La.  Ann.  329, 
16  South.  819. 

There  may  be  a  partial  obliteration,  which 
works  a  revocation  pro  tan  to;  Clark  v.  Smith, 
34  Barb.  (N.  Y.)  140 ;  Bigelow  v.  Gillott,  123 
Mass.  102,  25  Am.  Rep.  32 ;  Wolf  v.  Bolling- 
er, 62  111.  368;  Giffin  v.  Brooks,  48  Ohio  St. 
211,  31  N.  E.  743;  and  a  careful  interlinea- 
tion is  not  a  cancellation ;  Dixon's  Appeal, 
55  Pa.  424.  A  cancellation  by  pencil  is 
enough ;  2  D.  &  B.  311;  6  Hare  39;  L.  R.  2  P. 
&  D.  256;  Estate  of  Tomlinson,  133  Pa.  245, 
19  Atl.  4S2,  19  Am.  St  Rep.  637.  Where  a 
will  is  found  among  a  testator's  papers,  torn, 
there  is  a  presumption  of  revocation;  Beau- 
mont v.  Keim,  50  Mo.  28;  In  re  Johnson's 
Will,  40  Conn.  587;  Idley  v.  Bowen,  11  Wend. 
(N.  Y.)  227.  Where  after  a  person's  death  a 
will  is  found  in  an  unsealed  envelope  which 
had  been  in  his  possession  up  to  the  time  of 
his  death  and  with  lines  drawn  through  his 
signature,  the  presumption  is  that  he  him- 
self drew  the  lines  for  the  purpose  of  re- 
voking the  will ;  In  re  Philp,  64  Hun,  635,  19 
N.  Y.   Supp.  13. 

Perpendicular  marks  across  a  will  are  not 
"handwriting ;"  In  re  Hopkins,  172  N.  Y.  360, 
65  N.  E.  173,  65  L.  R.  A.  95,  92  Am.  St.  Rep. 
746. 

Mere  cancellation  of  a  deed  does  not  di- 
vest the  grantee's  title;  Devlin,  Deeds  300, 
305;  Holbrook  v.  Tirrell,  9  Pick.  (Mass.)  108; 
Fawcetts  v.  Kimmey,  33  Ala.  264;  Botsford 
v.  Morehouse,  4  Conn.  550;  National  Union 
Bld'g  Ass'n  v.  Brewer,  41  111.  App.  223; 
even  though  done  before  recording;  Hall  v. 
McDuff,  24  Me.  312;  but  it  might  practically 
have  that  effect  between  the  parties  by  es- 
toppel; Sawyer  v.  Peters,  50  N.  H.  143;  or 
by  reason  of  the  destruction  of  the  only  evi- 
dence of  the  transaction ;  Blaney  v.  Hanks, 
14  la.  400;  Parker  v.  Kane,  4  Wis.  12,  65 
Am.  Dec.  2S3. 


CANCELLATION 


417 


CANON  LAW 


On  a  bill  in  equity  for  the  re-execution  of 
lost  securities,  which  were  held  by  a  dece- 
dent in  his  lifetime  and  after  his  death  were 
not  found  among  his  papers,  a  party  alleg- 
ing their  destruction  or  cancellation  by  the 
decedent  is  bound  to  prove  the  fact  to  the 
satisfaction  of  the  court.  The  absence  of 
the  papers  raises  no  presumption  of  such 
destruction  or  cancellation ;  nor  is  mere 
proof  of  an  intention  to  destroy  or  cancel,  or 
of  the  declaration  of  such  intention,  alone 
sufficient ;  Gilpin  v.  Chandler,  2  Del.  Ch.  219. 

In  the  case  of  an  insurance  policy  after 
death,  the  remedy  of  the  company  for  fraud, 
etc.,  is  at  law  by  way  of  a  defence  to  a 
suit  on  the  policy ;  a  bill  in  equity  will  not 
lie  for  revocation  in  the  absence  of  special 
facts;  Riggs  v.  Ins.  Co.,  12!)  Fed.  207,  03  C. 
C.  A.  365. 

See  Deed;  Insurance;  Will;  Lost  In- 
strument; Revocation. 

CANDIDATE  (Lat.  candidatus,  from  Can- 
didas, white.  Said  to  be  from  the  custom  of 
Roman  candidates  to  clothe  themselves  in  a 
white  tunic). 

One  who  offers  himself,  or  is  offered  by 
others,  for  an  office. 

One  who  seeks  office  is  a  candidate;  it  is 
not  necessary  that  he  should  have  been 
nominated  for  it  Leonard  v.  Com.,  112  Pa. 
624,  4  Atl.  220. 

CANON.  In  Ecclesiastical  Law.  A  pre- 
bendary, or  member  of  a  chapter.  All  mem- 
bers of  chapters  except  deans  are  now  en- 
titled canons,  in  England.  2  Steph.  Com. 
11th  ed.  687,  n.;  1  Bla.  Com.  3S2. 

CANON  LAW.  A  body  of  ecclesiastical 
law,  which  originated  in  the  church  of  Rome, 
relating  to  matters  of  which  that  church  has 
or   claims   jurisdiction. 

A  canon  is  a  rule  of  doctrine  or  of  discipline,  and 
is  the  term  generally  applied  to  designate  the  or- 
dinances of  councils  and  decrees  of  popes.  The 
position  'which  the  canon  law  obtains  beyond  the 
papal  dominions  depends  on  the  extent  to  -which  it 
Is  sanctioned  or  permitted  by  the  government  of 
each  country  ;  and  hence  the  system  of  canon  law 
as  It  is  administered  in  different  countries  va- 
ries somewhat. 

In  the  wording  of  a  canon  it  is  not  enough 
to  admonish  or  to  express  disapprobation;  its 
wording  must  be  explicitly  permissive  or 
prohibitory,  backed  by  the  provision,  ex- 
pressed or  admittedly  understood,  that  its 
infringement  will  be  visited  with  punish- 
ment.   Cent  Diet. 

Though  this  system  of  law  is  of  primary  impor- 
tance in  Roman  Catholic  countries  alone,  it  still 
maintains  great  influence  and  transmits  many  of  its 
peculiar  regulations  down  through  the  jurisprudence 
of  Protestant  countries  which  were  formerly  Roman 
Catholic.  Thus,  the  canon  law  has  been  a  distinct 
branch  of  the  profession  in  the  ecclesiastical  courts 
of  England  for  several  centuries ;  but  the  recent 
modifications  of  the  jurisdiction  of  those  courts  have 
done  much  to  reduce  its  independent  Importance. 

The  Corpus  Juris  Canonici  is  drawn  from  various 
sources — the  opinions  of  the  ancient  fathers  of  the 
church,  the  decrees  of  councils,  and  the  decretal 
epistles  and  bulls  of  the  holy  see,  together  with  the 

Bouv.— 27 


maxims  of  the  civil   law  and  the  teachings  of   the 
Scriptures.     These   sources    were    first   drawn   upon 
for   a   regular   ecclesiastical   system   about  the 
of  Pope  Alexander  III.  (1139),  when  one  Gratian,  an 
Italian    monk,    animated    by    the    discovtry   of    Jus- 
tinian's Pandects,  collected  the  ecclesiastical  consti- 
tutions also  into  some  method  in  tbr^e  books,  which 
he     entitled     Concordia     Discordantium 
These   are   generally   known  as  Decrtti 
They  were   never   promulgated  as  a  code,    like   the 
preceding. 

The  subsequent  papal  decrees  to  the  time  of  the 
pontificate  of  Gregory  IX.  were  collected  in  much 
the  same  method,  under  the  auspices  of  that  pope, 
about  the  year  1234,  in  five  books,  entitled  . 
talia  Gregorii  Nonii.  A  sixth  book  was  adikd  by 
Boniface  VIII.,  about  the  year  1298,  which  is  called 
Scxtus  Decretaliutn,  or  Liber  Sextus.  The  Clemen- 
tine Constitution,  or  decrees  of  Clement  V.,  were 
in  like  manner  authenticated  in  1313  by  his  succes- 
sor, John  XXII.,  who  also  published  twenty  consti- 
tutions of  his  own,  called  the  extravagantes  Joannis, 
so  called  because  they  were  in  addition  to,  or  beyond 
the  boundary  of,  the  former  collections,  as  the  ad- 
ditions to  the  civil  law  were  called  Novels.  To 
these  have  since  been  added  some  decrees  of  later 
popes,  down  to  the  time  of  Sixtus  IV.,  in  five  books, 
called  Extravagantes  communes.  And  all  t' 
gether — Gratian's  Decrees,  Gregory's  Decretals,  the 
Sixth  Decretals,  the  Clementine  Constitutions,  and 
the  Extravagants  of  John  and  his  successors— form 
the  Corpus  Juris  Canonici,  or  body  of  the  Roman 
canon  law;  1  Bla.  Com.  82;  Encyclopedic,  Droit 
Canonique,  Droit  Public  Ecclisiastique ;  Diet,  de 
Jur.  Droit  Canonique ;    Erskine,  Inst.  b.  1,  t.  1,  s.  10. 

This  body  of  canon  law  was  the  jus  commune  of 
the  church  in  England.  The  English  provincial 
constitutions  merely  formed  a  supplement  to  it  and 
were  valid  only  as  interpreting  or  enforcing  the  pa- 
pal decrees ;  1  Holdsw.  H.  E.  L.  355.  It  forms  no 
part  of  the  law  of  England,  unless  it  has  been 
brought  into  use  and  acted  on  there  ;    11  Q.  B.  649. 

See  generally  Encycl.  Br.,  sub  voce,  Canon  Law; 
Maitland,  Canon  Law  ;  Jenks'  Teutonic  Law  ;  1  Sel. 
Essays  on  Anglo-Amer.  Leg.  Hist.  46. 

See,  in  general,  Ayliffe,  Par.  Jur.  Can.  Ang. ; 
Shelford,  Marr.  &  D.  19 ;  Preface  to  Burn,  Eccl. 
Law,  Tyrwhitt  ed.  22 ;  Hale,  Civ.  L.  26 ;  Bell's 
Case  of  a  Putative  Marriage,  203;  Diet,  du  Droit 
Canonique;  Stair,  Inst.  b.  1,  t.  1,  7 ;  1  Poll.  &  Maitl. 
90 ;  2  Sel.  Essays  on  Anglo-Amer.  Leg.  Hist  258. 
See  Extravagantes. 

CAN0NRY.  An  ecclesiastical  benefice  at- 
taching to  the  office  of  canon.  Holthouse, 
Diet. 

CANT.  A  method  of  dividing  property 
held  in  common  by  two  or  more  persons  pe- 
culiar to  the  civil  law,  and  may  be  avoided 
by  the  consent  of  all  of  those  who  are  in- 
terested, in  the  same  manner  that  any  other 
contract  or  agreement  may  be  avoided. 
Hayes  v.  Cuny,  9  Mart.  O.  S.  (La.)  S9.     See 

LlCITACION. 

CANTERBURY,    ARCHBISHOP    OF.     The 

primate  of  all  England:  the  chief  ecclesias- 
tical dignitary  in  the  church.  His  custom- 
ary privilege  is  to  crown  the  kings  and 
queens  of  England.  By  25  nen.  VIII.  c.  21, 
he  had  the  power  of  grantii-  ations 

in  any  case  not  contrary  to  the  Holy  scrip- 
tures and  the  law  of  God  where  the  pope 
used  formerly  to  grant  them,  which  is  the 
foundation  of  his  granting  special  licenses 
to  marry  at  any  place  or  time,  etc.  Whar- 
ton.    See  Church  of  England. 

CANTRED.  A  hundred,  a  district  con- 
taining a  hundred  villages.     Used  in  Wales 


CANTRED 


418 


CAPIAS 


in  the  same  sense  as  hundred  in  England. 
Cowell ;  Termes  de  la  Ley. 

CANVASS.  The  act  of  examining  the  re- 
turns of  votes  for  a  public  officer.  This 
duty  is  usually  intrusted  to  certain  officers 
of  a  state,  district,  or  county,  who  constitute 
a  board  of  canvassers.  The  determination 
of  the  board  of  canvassers  of  the  persons 
elected  to  an  office  is  prima  facie  evidence 
only  of  their  election.  A  party  may  go  be- 
hind the  canvass  to  the  ballots,  to  show 
the  number  of  votes  cast  for  him.  The  du- 
ties of  the  canvassers  are  wholly  ministe- 
rial; People  v.  Ferguson,  8  Uow.  (N.  Y.)  102; 
People  v.  Vail,  20  Wend.  (N.  Y.)  14;  People 
v.  Van  Cleve,  1  Mich.  362,  53  Am.  Dec.  69; 
People  v.  Kilduff,  15  111.  492,  60  Am.  Dec. 
769.  A  canvassing  board  has  no  power  to 
go  behind  the  returns  and  inquire  into  the 
legality  of  the  votes;  McQuade  v.  Furgason, 
91  Mich.  438,  51  N.  W.  1073;  State  v.  Van 
Camp,  36  Neb.  9,  91,  54  N.  W.  113.  In  mak- 
ing a  recount  they  have  no  authority  to 
throw  out  the  vote  of  a  precinct  or  ward  on 
the  ground  of  fraud,  as  their  power  is  mere- 
ly ministerial;  May  v.  Board  of  Canvassers, 
94  Mich.  505,  54  N.  W.  377.  See  In  re 
Woods,  5  Misc.  575,  26  N.  Y.  Supp.  169; 
Election. 

CANVASSING    BOARD.     See  Canvass. 

CAPACITY.  Ability,  power,  qualification, 
or  competency  of  persons,  natural  or  artifi- 
cial, for  the  performance  of  civil  acts  de- 
pending on  their  state  or  condition  as  de- 
fined or  fixed  by  law;  as,  the  capacity  to  de- 
vise, to  bequeath,  to  convey  lands;  or  to 
take  and  hold  lands;  to  make  a  contract, 
and  the  like.    2  Com.  Dig.  294. 

CAPAX  DO  LI  (Lat.  capable  of  commit- 
ting crime).  The  condition  of  one  who  has 
sufficient  mind  and  understanding  to  be  made 
responsible  for  his  actions.    See  'Discretion. 

CAPE.  A  judicial  writ,  now  abolished, 
touching  a  plea  of  lands  and  tenements. 
The  writs  which  bear  this  name  are  of  two 
kinds — namely,  cape  magnum,  or  grand  cape, 
and  cape  parvum,  or  petit  cape.  The  cape 
magnum  was  the  writ  for  possession  where 
the  tenant  failed  to  appear.  The  petit  cape 
is  so  called  not  so  much  on  account  of  the 
smallness  of  the  writ  as  of  the  latter ;  it  was 
the  shorter  writ  issued  when  the  plaintiff 
prevailed  after  the  tenant  had  appeared. 
Fleta,  1.  6,  c.  55,  §  40.  For  the  difference 
between  the  form  and  the  use  of  these  writs, 
see  2  Wms.  Saund.  45  c,  d;  Fleta,  1.  6,  c.  55, 
§  40. 

CAPERS.  Vessels  of  war  owned  by  pri- 
vate- persons,  and  different  from  ordinary  pri- 
vateers only  in  size,  being  smaller.  Beawes, 
Lex  Merc.  230. 

CAPIAS  (Lat.  that  you  take).  A  writ  di- 
recting the  sheriff  to  take  the  person  of  the 
defendant  into  custody. 

It  is  a  judicial  writ,  and  issued  originally  only  to 
enforce  compliance  with  the  summons  of  an  original 


writ  or  with  some  judgment  or  decree  of  the  court. 
It  was  originally  issuable  as  a  part  of  the  original 
process  in  a  suit  only  in  case  of  injuries  committed 
by  force  or  with  fraud,  but  was  much  extended  by 
statutes.  See  Arrest  ;  Bail.  Being  the  first  word 
of  distinctive  significance  in  the  writ,  when  writs 
were  framed  in  Latin,  it  came  to  denote  the  whole 
class  of  writs  by  which  a  defendant's  person  was  to 
be  arrested.  It  was  issuable  either  by  the  court  of 
Common  Pleas  or  King's  Bench,  and  bore  the  seal  of 
the  court. 

See  Spence,  Eq.  Jur. ;  Bail;  Breve;  Ar- 
rest; and  the  titles  here  following. 

CAPIAS  AD  AUDIENDUM  JUDICIUM. 
A  writ  issued,  in  a  case  of  misdemeanor,  aft- 
er the  defendant  has  appeared  and  is  found 
guilty,  to  bring  him  to  judgment  if  he  is  not 
present  when  called.     4  Bla.  Com.  368. 

CAPIAS  AD  COMPUTANDUM.  A  writ 
which  issued  in  the  action  of  account  ren- 
dered upon  the  judgment  quod  computet, 
when  the  defendant  refused  to  appear  in 
his  proper  person  before  the  auditors  and 
enter  into  his  account- 
According  to  the  ancient  practice,  the  defendant 
might,  after  arrest  upon  this  process,  be  delivered 
on  mainprize,  or,  in  default  of  finding  mainpernors, 
was  committed  to  the  Fleet  prison,  where  the  audi- 
tors attended  upon  him  to  hear  and  receive  his  ac- 
count.    'Hie  writ  is   now  disused. 

Consult  Thesaurus  Brevium  38 ;  Coke,  En- 
tries  46,  47 ;  Rastell,  Entries  14  b.  15. 

CAPIAS  PRO  FINE.  A  writ  which  is- 
sued against  a  defendant  who  had  been 
fined  and  did  not  discharge  the  fine  accord- 
ing to  the  judgment. 

The  object  of  the  writ  was  to  arrest  a  defendant 
against  whom  a  plaintiff  had  obtained  judgment, 
and  detain  him  until  he  paid  to  the  king  the  fine  for 
the  public  misdemeanor,  coupled  with  the  remedy 
for  the  private  injury  sustained,  in  all  cases  of 
forcible  torts;  11  Coke  43;  5  Mod.  285;  falsehood  in 
denying  one's  own  deed ;  Co.  Lift.  131 ;  8  Coke  60 ; 
unjustly  claiming  property  in  replevin,  or  con- 
tempt by  disobeying  the  command  of  the  king's 
writ,  or  the  express  prohibition  of  any  statute ;  t 
Coke  60.    It  is  now  abolished ;    3  Bla.  Com.  398. 

CAPIAS    AD     RESPONDENDUM.     A    writ 

commanding  the  officer  to  whom  it  is  di- 
rected "to  take  the  body  of  the  defendant 
and  keep  the  same  to  answer  the  plaintiff," 
etc. 

This  is  the  writ  of  capias  which  is  generally  in- 
tended by  the  use  of  the  word  capias,  and  was  for- 
merly a  writ  of  great  importance.  For  some  ac- 
count of  its  use  and  value,  see  Arrest;    Bail. 

According  to  the  course  of  the  practice 
at  common  law,  the  writ  bears  teste,  in  the 
name  of  the  chief  justice,  or  presiding  judge 
of  the  court,  on  some  day  in  term-time,  when 
the  judge  is  supposed  to  be  present,  not  be- 
ing Sunday,  and  is  made  returnable  on  a 
regular  return  day. 

If  the  writ  has  been  served  and  the  de- 
fendant does  not  give  bail,  but  remains  in 
custody,  it  is  returned  C.  C.  (cepi  corpus); 
if  he  have  given  bail,  it  is  returned  C.  C.  B. 
B.  {cepi  corpus,  bail  bond);  if  the  defend- 
ant's appearance  have  been  accepted,  the  re- 
turn is,  "C.  C,  and  defendant's  appearance 
accepted."     See  1  Archb.  Pr.  67. 


CAPIAS  AD  SATISFACIENDUM 


419 


CAPIAT  UK    1 


CAPIAS  AD  SATISFACIENDUM.  A  writ 
directed  to  the  sheriff  or  coroner,  command- 
ing him  to  take  the  person  therein  named 
and  him  safely  keep  so  that  he  may  have  his 
body  in  court  on  the  return  day  of  the  writ, 
to  satisfy  {ad  satisfaci*  ndum)  the  party  who 
has  recovered  judgment  against  him. 

It  is  a  writ  of  execution  Issued  after  judgment, 
and  might  have  been  issued  against  a  plaintiff 
against  whom  judgmeut  was  obtained  for  costs,  as 
well  as  against  the  defendant  in  a  personal  action. 
As  a  rule  at  common  law  it  lay  in  all  cases  where  a 
capias  ad  respondendum  lay  as  a  part  of  the  mesne 
process.  Some  classes  of  persons  were,  however, 
exempt  from  arrest  on  mesne  process  who  were 
liable  to  it  on  final.  It  was  a  very  common  form  of 
execution,  until  within  a  few  years,  In  many  of  the 
states ;  but  its  efficiency  has  been  destroyed  by 
statutes  facilitating  the  discharge  of  the  debtor,  in 
some  states,  and  by  statutes  prohibiting  its  issue, 
In  others,  except  in  specified  cases.  See  Arrest; 
Privilege.  It  is  commonly  known  by  the  abbrevia- 
tion co.  sa. 

It  is  tested  on  a  general  teste  day,  and 
returnable  on  a  general  return  day. 

It  is  executed  by  arresting  the  defendant 
and  keeping  him  in  custody.  lie  cannot  be 
discharged  upon  bail  or  by  consent  of  the 
sheriff.  See  Escape.  And  payment  to  the 
sheriff  is  held  in  England  not  to  be  suffi- 
cient to  authorize  a  discharge.  He  might 
be  discharged  by  showing  irregularities  in 
the  writ;  3  D.  P.  C.  291;  4  id.  6. 

The  return  made  by  the  officer  is  either 
C  C.  &  C.  (ccpi  corpus  et  com  mitt  it  ur),  or 
N.  E.  I.  (non  est  inventus).  The  effect  of 
execution  by  a  ca.  sa.  is  to  prevent  suing  out 
any  other  process  against  the  lands  or  goods- 
of  the  person  arrested,  at  common  law;  but 
this  is  modified  by  statutes  in  the  modern 
law.     See  Execution. 

CAPIAS  UTLAGATUM.  A  writ  directing 
the  arrest  of  an  outlaw. 

If  general,  it  directs  the  sheriff  to  arrest 
the  outlaw  and  bring  him  before  the  court 
on  a  general  return  day. 

If  special,  it  directs  the  sheriff,  in  addi- 
tion, to  take  possession  of  the  goods  and 
chattels  of  the  outlaw,  summoning  a  jury 
to  determine  their  value. 

It  was  a  part  of  the  process  subsequent  to  the 
capias,  and  was  issued  to  compel  an  appearance 
where  the  defendant  had  absconded  and  a  capias 
could  not  be  served  upon  him.  The  outlawry  was 
readily  reversed  upon  any  plausible  pretext,  upon 
appearance  of  a  party  in  person  or  by  attorney,  as 
the  object  of  the  writ  was  then  satisfied.  The  writ 
issued  after  an  outlawry  in  a  criminal  as  well  as  in 
■  civil  case.     See  3  Bla.   Com.   281;    4  id.  320. 

CAPIAS  IN  WITHERNAM.  A  writ  direct- 
ing the  sheriff  to  take  other  goods  of  a  dis- 
trainor equal  in  value  to  a  distress  which  he 
has  formerly  taken  and  still  withholds  from 
the  owner  beyond  the  reach  of  process. 

When  chattels  taken  by  distress  were  decided  to 
have  been  wrongfully  taken  and  were  by  the  dis- 
trainor eloigned,  that  is,  carried  out  of  the  county 
or  concealed,  the  sheriff  made  such  a  return.  There- 
upon this  writ  issued,  thus  putting  distress  against 
distress. 

Goods  taken  in  withernam  are  irreplevia- 
ble till  the  original  distress  be  forthcoming; 
3  Bla.  Com.  148. 


CAPIATUR    PRO    FINE.     See  Capias  pro 

Fixe. 

CAPITA  (Lat).  Heads,  and  figuratively 
entire  bodies,  whether  of  persons  or  animals. 
Spelman. 

An  expression  of  frequent  occurrence  in  laws 
regulating  the  distribution  of  the  i  arsons 

dying  intestate.  When  all  the  pi  i 
shares  in  the  distribution  are  of  the  sai 
kindred  to  the  deceased  person  (e.  g.  when  all  are 
grandchildren),  and  claim  directly  from  him  in 
their  own  right,  and  not  through  an  intermediate  re- 
lation, they  take  per  capita,  that  is,  equal  shares,  or 
share  and  share  alike.  But  when  they  are  of  dif- 
ferent degrees  of  kindred  (e.  g.  some  the  chi 
others  the  grandchildren  or  the  great-grandchil- 
dren of  the  deceased),  those  more  remote  take  per 
stirpem  or  per  stirpes,  that  is,  they  take  respec- 
tively the  shares  their  parents  (or  other  relation 
standing  in  the  same  degree  with  them  of  the  sur- 
viving kindred  entitled,  who  are  in  the  nearest  de- 
gree of  kindred  to  the  Intestate)  would  have  taken 
had  they  respectively  survived  the  intestate.  Reeve, 
Descent,  Introd.  zxvli.;  also,  1  Roper,  Leg.  126,  130. 
See  Per  Capita;    Peh  Stirpes;    Stirpes. 

CAPITAL.  The  sum  of  money  which  a 
merchant,  banker,  or  trader  adventures  in 
any  undertaking,  or  which  he  contributes 
to  the  common  stock  of  a  partnership,  and 
also  the  fund  of  a  trading  company.  Me- 
Culloch. 

Capital  signifies  the  actual  estate,  wheth- 
er in  money  or  property,  owned  by  an  in- 
dividual or  corporation;  People  v.  Com'rs 
of  Taxes,  23  N.  Y.  192 ;  it  is  the  fund  upon 
which  it  transacts  its  business,  which  would 
be  liable  to  its  creditors,  and  in  case  of  in- 
solvency pass  to  a  receiver;  International 
Life  Assur.  Soc.  of  London  v.  Com'rs  of 
Taxes,  28  Barb.  (N.  Y.)  318;  it  does  not  in- 
clude money  borrowed  temporarily;  Bailey 
v.  Clark,  21  Wall.  (U.  S.)  281.  22  L.  i: 
See,  also,  Mechanics'  &  Farmers'  Bank  v. 
Townsend,  5  Blatchf.  315,  Fed.  Cas.  X". 
9,381;  People  v.  Sup'rs,  IS  Wend.  (N.  Y.)  605. 

Profits  of  a  corporation  are  not  appro- 
priated to  its  capital  because  it  has  incurred 
a  debt  nearly  equal  to  such  profits  in  per- 
manent improvements;  Davis  v.  Jackson.  152 
Mass.  58,  25  N.  E.  21.  23  Am.  St. 
See  Dividends;  Income;  Moneyed  Capital. 

As  to  what  is  moneyed  capital  in  a  fi 
act  respecting  state  taxation  of  national  hank 
stock,  see  Mercantile  Bank  v.  New  York,  121 
U.  S.  157,  7  Sup.  Ct.  826,  30  L.  Ed.  895;  First 
Nat.  Bank  v.  Chapman.  173  U.  S.  214,  19 
Sup.  Ct  407,  43  L.  Ed.  669. 

CAPITAL  CRIME.  One  for  which  the 
punishment  of  death  is  inflicted. 

CAPITAL  P0RTMEN.  See  Ipswich, 
Domesday  of. 

CAPITAL  PUNISHMENT.  The  punish 
ment  of  death. 

The  subject  of  capital  punishment  has  occupied 
the  attention  of  enlightened  men  for  a  long  time, 
particularly  since  the  middle  of  the  last  century; 
and  none  deserves  to  be  more  carefully  Investigated. 
The  right  of  punishing  its  members  by  society  is 
admitted  ;  but  how  far  this  right  extends,  by  the 
laws  of  nature  or  of  God.  has  been  much  disputed 
by  theoretical  writers,  although  it  cannot  be  denied 


CAPITAL  PUNISHMENT 


420 


CAPITATION 


that  most  nations,  ancient  and  modern,  have  deemed 
capital  punishment  to  be  within  th6  scope  of  the 
legitimate  powers  of  government.  Beccaria  con- 
tends with  zeal  that  the  punishment  of  death  ought 
not  to  be  inflicted  in  time  of  peace,  nor  at  other 
times,  except  in  cases  where  the  laws  can  be  main- 
tained  in   no   other  way.     Beccaria,   chap.   28. 

The  ancient  method  of  administering  the  law  was 
by  retribution  or  the  vindication  of  the  law  upon 
the  offender,  and  in  England,  as  late  as  Geo.  III., 
there  were  about  two  hundred  offences  punishable 
by  death,  among  which  were  cutting  down  a  tree, 
robbing  a  rabbit  warren,  harboring  an  offender 
against  the  revenue  acts,  stealing  in  a  dwelling- 
house  to  the  amount  of  forty  shillings,  or  In  a  shop 
goods  to  the  amount  of  five  shillings,  counterfeit- 
ing the  stamps  that  were  used  for  the  sale  of  per- 
fumery, etc.  Owing  to  the  efforts  of  Sir  Samuel 
Romilly,  and  later  of  Sir  James  Mackintosh,  the  old 
criminal  code  was  succeeded  by  more  humane  leg- 
islation, and  since  the  statute  of  1861  there  are 
but  four  crimes  now  punishable  in  England  by 
death,  high  treason,  murder,  piracy  with  violence, 
and  setting  Are  to  the  king's  ships,  dockyards,  ar- 
senals or  stores.  See,  also,  2  Poll.  &  Maitl.  450 ; 
Crimes  ;  Execution.  It  was  abolished  in  Italy 
in  1S90,  and  has  recently  been  restored  in  France. 
It  has  been  abolished  in  some  states.  It  is  usually 
by  hanging;  some  states  have  adopted  electrocu- 
tion; and  two  states  permit  a  choice  between  hang- 
ing  and    shooting. 

See  Electrocution. 


CAPITATION  (Lat.  caput,  head).  A  poll- 
tax.  An  imposition  yearly  laid  upon  each 
person. 

The  constitution  of  the  United  States  pro- 
vides that  "no  capitation  or  other  direct  tax 
shall  be  laid,  unless  in  proportion  to  the 
census,  or  enumeration,  thereinbefore  direct- 
ed to  be  taken."  Art.  1,  s.  9,  n.  4.  See  Hyl- 
ton  v.  U.  S.,  3  Dall.  (U.  S.)  171,  1  L.  Ed.  556; 
Loughborough  v.  Blake,  5  Wheat.  (U.  S.) 
317,  5  L.  Ed.  98. 

CAPITE.     See  In  Capite. 
CAPITULA.     Collections  of  laws  and  ordi- 
nances drawn  up  under  heads  or  divisions. 
Spelman,  Gloss. 

The  term  is  used  in  the  civil  and  old  English  law, 
and  applies  to  the  ecclesiastical  law  also,  meaning 
chapters  or  assemblies  of  ecclesiastical  persons. 
Du  Cange. 

The  Royal  and  Imperial  Capitula  were  the 
edicts  of  the  Frankish  Kings  and  Emperors. 
They  are  distinguishable  from  the  leges  and 
probably  had  a  less  permanent  effect.  They 
might,  by  general  consent,  become  a  part  of 
the  leges — legions  addita. 


CAPITAL  STOCK.  The  sum,  divided  into 
shares,  which  is  raised  by  mutual  subscrip- 
tion of  the  members  of  a  corporation.  It  is 
said  to  be  the  sum  upon  which  calls  may  be 
made  upon  the  stockholders,  and  dividends 
are  to  be  paid;  Barry  v.  Exchange  Co.,  1 
Sandf.  Ch.  (N.  Y.)  280;  State,  v.  Fire  Ass'n, 
23  N.  J.  L.  195;  Ang.  &  A.  Corp.  §§  151,  556; 
Union  Bank  of  Tennessee  v.  State,  9  Yerg. 
(Tenn.)  490;  State  Bank  of  Wisconsin  v. 
City  of  Milwaukee,  18  Wis.  281.  The  term 
is  used  to  indicate  the  amount  of  capital 
which  the  charter  provides  for,  and  not  the 
value  of  the  property  of  the  corporation; 
State  v.  Fire  Ass'n,  23  N.  J.  L.  195;  or  the 
original  amount  upon  which  a  corporation 
commences;  State  Bank  v.  City  Council,  3 
Rich.  (S.  C.)  346.  See  St.  Louis,  I.  M.  &  S. 
By.  Co.  v.  Loftin,  30  Ark.  693  (contra,  under 
an  Illinois  revenue  statute;  Pacific  Hotel  Co. 
v.  Lieb,  83  111.  602)  ;  the  entire  sum  agreed 
to  be  contributed  to  the  enterprise,  whether 
paid  in  or  not ;  Reid  v.  Mfg.  Co.,  40  Ga.  98, 
2  Am.  Rep.  563. 

It  has  been  held  to  mean  the  amount  paid 
in,  not  the  amount  subscribed;  City  of  Phil- 
adelphia v.  Ry.  Co.,  52  Pa.  177 ;  Mayeski  v. 
His  Creditors,  40  La.  Ann.  98,  4  South.  9; 
contra,  Hightower  v.  Thornton,  8  Ga.  486,  52 
Am.  Dec.  412;  nor  that  named  in  the  articles 
of  association;  Pratt  v.  Munson,  17  Hun  (N. 
Y.)  475.    See  1  Thomp.  Corp.  §  1060;    Stock. 

CAPITALIS    JUSTICIARIUS.      See  Justi- 

CIAB. 

CAPITANEUS.  He  who  held  his  land  or 
title  directly  from  the  king  himself. 

A  commander  or  ruler  over  others,  either 
In   civil,   military,   or   ecclesiastical  matters. 

A  naval  commander.  This  latter  use  be- 
gan A.  D.  1264.  Spelman,  Gloss.  Capita- 
neus,  Admiralius. 


CAPITULA  CORON/E.  Specific  and  mi- 
nute schedules,  or  capitula  itineris. 

CAPITULA  ITINERIS.  Schedules  of  in- 
quiry delivered  to  the  justices  in  eyre  before 
setting  out  on  their  circuits,  and  which  were 
intended  to  embrace  all  possible  crimes. 

CAPITULA  DE  JUD/EIS.  A  register  of 
mortgages  made  to  the  Jews.  2  Bla.  Com. 
343  ;  Crabb,  Eng.  Law  130. 

CAPITULARY.  In  French  Law.  A  collec- 
tion of  laws  and  ordinances  orderly  arranged 
by  divisions. 

The  term  is  especially  applied  to  the  collections  of 
laws  made  and  published  by  the  early  French  em- 
perors. The  execution  of  these  capitularies  was  in- 
trusted to  the  bishops,  courts,  and  missi  regis;  and 
many  copies  were  made.  The  best  edition  of  the 
Capitularies  is  said  to  be  that  of  Baluze,  1677;  Co. 
Litt.  191  a,  Butler's  note  77. 

In  Ecclesiastical  Law.  A  collection  of  laws 
and  ordinances  orderly  arranged  by  divi- 
sions. A  book  containing  the  beginning  and 
end  of  each  Gospel  which  is  to  be  read  every 
day  in  saying  mass.    Du  Cange. 

CAPITULATION.  The  treaty  which  deter- 
mines the  conditions  under  which  a  fortified 
place  or  army  in  the  field  is  abandoned  to  the 
commanding  oflicer  of  the  opposing  army. 

On  surrender  by  capitulation,  all  the  property  of 
the  inhabitants  protected  by  the  articles  is  con- 
sidered by  the  law  of  nations  as  neutral,  and  not 
subject  to  capture  on  the  high  seas  by  the  bellig- 
erent or  its  ally  ;  Miller  v.  The  Resolution,  2  Dall. 
(U.   S.)   8,  1  L.  Ed.  263. 

Capitulations.  The  name  used  for  treaty 
engagements  between  the  Turkish  government 
and  the  principal  states  of  Europe  by  which 
subjects  of  the  latter,  residents  in  the  ter- 
ritory of  the  former,  were  exempt  from  the 
laws  of  the  places  where  they  dwelt.  1  King- 
lake,  Invasion  of  Crimea  116. 

In  Civil  Law.  An  agreement  by  which  the 
prince  and  the  people,  or  those  who  have 


CAPITULATION 


421 


CAPTION 


the  right  of  the  people,  regulate  the  manner 
in  which  the  government  is  to  be  administer- 
ed.    Wolffius,  §  989. 

CAPITULUM  (Lat.).  A  leading  division 
of  a  book  or  writing;  a  chapter;  a  Bection. 
Tert.  Adv:  Jud.  9,  19.     Abbreviated,  Cap. 

CAPTAIN  (Lat.  capitanew;  from  caput, 
head).  The  commander  of  a  company  of 
soldiers. 

The  term  Is  also  used  of  officers  in  the  municipal 
police  In  a  somewhat  similar  sense:  as,  captain  of 
police,   captain  of  the  watch. 

The  master  or  commander  of  a  merchant- 
vessel,  or  ;i  vessel  of  war. 

A  subordinate  oflicer  having  charge  of  a 
certain  part  of  a  vessel  of  war. 

In  the  United  States,  the  commander  of  a  mer- 
chant-vessel is,  in  statutes  and  legal  proceedings 
and  language,  more  generally  termed  master,  which 
title  see.  In  foreign  laws  and  languages  he  is  fre- 
quently styled  patron. 

The  rank  of  captain  in  the  United  States  navy  is 
next  above  that  of  commander;  and  captains  are 
generally  appointed  from  this  rank  in  the  order  of 
seniority.  The  president  has  the  appointing  power, 
subject  to  the  approval  and  consent  of  the  senate. 

CAPTATION.      In    French    Law.      The  act 

of  one  who  succeeds  in  controlling  the  will 
of  another,  so  as  to  become  master  of  it  It 
is  generally  taken  in  a  bad  sense. 

It  was  formerly  applied  to  the  first  stage 
of  the  hypnotic  or  mesmeric  trance. 

Captation  takes  place  by  those  demonstrations  of 
attachment  and  friendship,  by  those  assiduous  at- 
tentions, by  those  services  and  officious  little  pres- 
ents, which  are  usual  among  friends,  and  by  all 
those  means  which  ordinarily  render  us  agreeable 
to  others.  When  these  attentions  are  unattended 
by  deceit  or  fraud,  they  are  perfectly  fair,  and  the 
captation  is  lawful;  but  if,  under  the  mask  of 
friendship,  fraud  is  the  object,  and  means  are  used 
to  deceive  the  person  with  whom  you  are  connected, 
then  the  captation  is  fraudulent,  and  the  acts  pro- 
cured by  the  captator  are  void. 

CAPTION  (Lat.  capere,  to  take).  A  tak- 
ing, or  seizing ;  an  arrest.  The  word  is  no 
longer  used  in  this  sense. 

The  heading  of  a  legal  instrument,  in 
which  is  shown  when,  where,  and  by  what 
authority  it  was  taken,  found,  or  executed. 

In  the  English  practice,  when  an  inferior  court, 
In  obedience  to  the  writ  of  certiorari,  returned  an 
indictment  into  the  king's  bench,  it  was  annexed  to 
the  caption,  then  called  a  schedule,  and  the  caption 
concluded  with  stating  that  "it  is  presented  in  man- 
ner and  form  as  appears  in  a  certain  indictment 
thereto  annexed,"  and  the  caption  and  indictment 
were  returned  on  separate  parchments.  1  Wms. 
Saund.  309,  n.  2. 

In  some  of  the  states,  every  indictment  has  a  cap- 
tion attached  to  it,  and  returned  by  the  grand  Jury 
as  part  of  their  presentment  in  each  particular  case; 
and  in  this  respect  a  caption  differs  essentially  from 
that  of  other  tribunals,  where  the  separate  indict- 
ments are  returned  without  any  caption,  and  the 
caption  Is  added  by  the  clerk  of  the  court,  as  a 
general  caption  embracing  all  the  indictments 
found  at  the  term;  Com.  v.  Stone,  3  Gray  (Mass.) 
454;  Com.  v.  Edwards,  4  Gray  (Mass.)  5;  Com.  v. 
Gee,  6   Cush.    (Mass.)   174. 

In  Criminal  Practice.  The  object  of  the 
caption  is  to  give  a  formal  statement  of  the 
proceedings,  describe  the  court  before  which 
the  indictment  is  found,  and  the  time  when 


and  place  where  it  was  found;  Hall,  Int.  L. 
413;  Com.  v.  Stone,  3  Gray  (Mass.)  454;  and 
the  jurors  by  whom  it  was  found ;  Whart. 
Cr.  PI.  §  91.  Thus  particulars  must  be  set 
forth  with  reasonable  certainty;  U.  8. 
Prentice,  6  McLean,  66,  I 
State  v.  Conley,  39  Me.  78;    B  tate, 

20  Ala.  33.  It  must  show  that  the  venire 
facias  was  returned  and  from  whence  the 
jury  came;  Whart.  Cr.  PL  §  91.  The  cap- 
tion may  be  amended  in  the  court  in  which 
the  indictment  was  found  ;  U.  S.  v.  l'rentice, 
6  McLean  GG,  Fed.  Cas.  No.  16,083;  Com.  v. 
Ilines,  101  Mass.  33;  Brown  v.  Com.,  78  Pa. 
122;  even  in  the  supreme  court;  State  v. 
Jones.  9  N.  J.  L.  357,  17  Am.  Dec.  483;  State 
v.  Williams,  2  McCord  (S.  C.)  301.  It  is  no 
part  of  the  indictment ;  Com.  v.  Stone,  3 
Gray  (Mass.)  454;  State  v.  Wentworth,  37 
N.  H.  196;  People  v.  Bennett,  37  N.  Y.  117, 
93  Am.  Dec.  551;   Noles  v.  State,  24  Ala.  672. 

A  clerical  error  in  naming  the  district 
court  of  Alaska  in  the  caption  of  an  indict- 
ment as  "the  District  Court  of  the  United 
states,"  etc.,  does  not  vitiate  such  indict- 
ment: Jackson  v.  U.  S.,  102  Fed.  473,  42  0. 
C.  A  452. 

In  Depositions.  The  caption  should  state 
the  title  of  the  cause,  the  names  of  the  par- 
ties, and  at  whose  instance  the  depositions 
are  taken;  Knight  v.  Nichols,  34  Me.  208. 
See  Waskern  v.  Diamond,  1  Hemp.  701,  Fed. 
Cas.  No.  17,248;   Weeks,  Depositions. 

For  some  decisions  as  to  the  forms  and 
requisites  of  captions,  see  State  v.  Sutton,  5 
N.  C.  281;  State  v.  Creight,  1  Brev.  (S.  C.) 
169,  2  Am.  tDec.  656;  Mitchell  v.  State,  S 
Yerg.  (Tenn.)  514;  State  v.  Brickell,  8  N. 
C.  354;  Kirk  v.  State,  6  Mo.  4G9;  Duncan  v. 
People,  1  Scam.  (111.)  456;  Beauehamp  v. 
State,  6  Blackf.  (Ind.)  299;  Thomas  v. 
State,  5  How.  (Miss.)  20. 

CAPTIVE.  A  prisoner  of  war.  Such  a 
person  does  not  by  his  capture  lose  his  civil 
rights. 

CAPTOR.  In  International  Law.  A  bellig- 
erent who  has  taken  property  from  an  enemy 
or  from  an  offending  belligerent.  The  term 
also  designates  a  belligerent  who  has  cap- 
tured the  person  of  an  enemy. 

Formerly,  goods  taken  in  war  were  ad- 
judged to  belong  to  the  captor;  they  are 
now  considered  to  vest  primarily  in  the  state 
or  sovereign,  and  belong  to  the  individual 
captors  only  to  the  extent  that  the  municipal 
laws  provide.  Captors  are  responsible  to  the 
owners  of  the  property  for  all  losses  and 
damages,  when  the  capture  is  tortious  and 
without  reasonable  cause  in  the  exercise  of 
belligerent  rights.  But  if  the  capture  is 
originally  justifiable,  the  captors  will  not  be 
responsible,  unless  by  subsequent  misconduct 
they  become  trespassers  ab  initio;  1  C.  Rob. 
Adm.  93,  9G.  See  The  Flying  Fish,  2  Gall. 
374,  Fed.  Cas.  No.  4,892;  The  Anne  Green,  1 
GalL  274,  Fed.  Cas.  No.  414;    Hart  v.  The 


CAPTOR 


422 


CAPUT 


Littlejohn,  1  Pet.  Adm.  116,  Fed.  Cas.  No. 
6,153;  The  London  Packet,  1  Mas.  14,  Fed. 
Cas.  No.  8,474. 

CAPTURE.      In    International    Law.     The 

taking  of  property  by  one  belligerent  from 
another  or  from  an  offending  neutral. 

Private  property  of  the  enemy  is  not  sub- 
ject to  capture  on  land,  but  the  contrary  rule 
holds  at  sea.  When  private  enemy  vessels 
are  seized  at  sea,  title  does  not  immediately 
vest  in  the  captor,  but  the  vessel  must  be 
brought  before  a  prize  court  and  legally  con- 
demned. When  public  enemy  vessels  are 
seized,  title  vests  immediately  in  the  captor 
state.  Capture  is  deemed  lawful  when  made 
in  accordance  with  the  laws  of  war. 

Private  neutral  property  is  subject  to  cap- 
ture by  a  belligerent  for  the  carriage  of  con- 
traband (q.  v.),  breach  of  blockade  {q.  v.) 
and  unneutral  service  (q.  v.)  The  Declara- 
tion of  Paris  (q.  v.)  laid  down  the  rule  that 
enemy  goods,  except  contraband  of  war, 
should  not  be  subject  to  capture  under  a  neu- 
tral flag,  nor  neutral  goods  under  an  enemy 
flag. 

It  has  been  a  subject  of  controversy  wheth- 
er captured  neutral  vessels  may  be  destroyed 
by  a  belligerent  under  exceptional  circum- 
stances. British  practice  held  that  neutral 
prizes  should  be  abandoned  if  they  could  not 
be  brought  into  court.  Russia  followed  the 
opposite  rule  in  the  war  with  Japan  in  1905. 
The  Declaration  of  London  (q.  v.)  compro- 
mised the  question  and  allows  destruction  of 
a  neutral  vessel  when  it  is  liable  to  condem- 
nation upon  the  facts  of  the  case  and  when 
the  release  of  the  vessel  would  involve  dan- 
ger to  the  safety  of  the  war-ship  and  the  suc- 
cess of  the  operations  in  which  she  is  en- 
gaged at  the  time.  II  Opp.  546-558.  See 
Neutrality. 

CAPUT  (Lat.  head). 

In  Civil  Law.  Status;  a  person's  civil  con- 
dition. 

According  to  the  Roman  law,  three  elements  con- 
curred to  form  the  status  or  caput  of  the  citizen, 
namely,  liberty,  libertas,  citizenship,  civitas,  and 
family,   familia. 

Libertas  est  naturalis  facultas  ejus  quod  cuique 
facere  libet,  nisi  si  quid  vi  aut  jure  prohibetur. 
This  definition  of  liberty  has  been  translated  by  Dr. 
Cooper,  and  all  the  other  English  translators  of  the 
Institutes,  as  follows:  "Freedom,  from  which  we 
are  denominated  free,  Is  the  natural  power  of  act- 
ing as  we  please,  unless  prevented  by  force  or  by 
the  law."  This,  although  It  may  be  a  literal,  is 
certainly  not  a  correct,  translation  of  the  text.  It 
is  absurd  to  say  that  liberty  consists  in  the  power 
of  acting  as  we  think  proper,  so  far  as  not  restrain- 
ed by  force;  for  it  is  evident  that  even  the  slave 
can  do  what  he  chooses,  except  so  far  as  his  voli- 
tion is  controlled  by  the  power  exercised  over  him 
by  his  master.  The  true  meaning  of  the  text  is: 
"Liberty  (from  which  we  are  called  free)  is  the 
power  which  we  derive  from  nature  of  acting  as  we 
please,  except  so  far  as  restrained  by  physical  and 
moral  impossibilities."  It  is  obvious  that  a  person 
is  perfectly  free  though  he  cannot  reach  the  moon 
nor  stem  the  current  of  the  Mississippi ;  and  it  is 
equally  clear  that  true  freedom  is  not  impaired 
by  the  rule  of  law  not  to  appropriate  the  property 


of  another  to  ourselves,  or  the  precept  of  morality 
to  behave  with  decency  and^decorum. 

Civitas— the  city— reminds"  us  of  the  celebrated 
expression,  "civis  sum  Romanus,"  which  struck 
awe  and  terror  into  the  most  barbarous  nations. 
The  citizen  alone  enjoyed  the  jus  Quiritium,  which 
extended  to  the  family  ties,  to  property,  to  inherit- 
ance, to  wills,  to  alienations,  and  to  engagements 
generally.  In  striking  contrast  with  the  civis  stood 
the  peregrinus  hostis,  barbarus.  Familia— the  fam- 
ily— conveyed  very  different  ideas  in  the  early  pe- 
riod of  Roman  jurisprudence  from  what  it  does  in 
modern  times.  Besides  the  singular  organization  of 
the  Roman  family,  explained  under  the  head  of 
pater  familias,.  the  members  of  the  family  were 
bound  together  by  religious  rites  and  sacrifices,— 
sacra  familia. 

The  loss  of  one  of  these  elements  produced  a 
change  of  the  status,  or  civil  condition  ;  this  change 
might  be  threefold;  the  loss  of  liberty  carried  with 
it  that  of  citizenship  and  family,  and  was  called  the 
maxima  capitis  deminutio ;  the  loss  of  citizenship 
did  not  destroy  liberty,  but  deprived  the  party  of 
his  family,  and  was  denominated  media  capitis  de- 
minutio ;  when  there  was  a  change  of  condition  by 
adoption  or  abrogation,  both  liberty  and  citizenship 
were  preserved,  and  this  produced  the  minima  cap- 
itis deminutio.  But  the  loss  or  change  of  the 
status,  whether  the  great,  the  less,  or  the  least,  was 
followed  by  serious  consequences:  all  obligations 
merely  civil  were  extinguished ;  those  purely  nat- 
ural continued  to  exist.  Gaius  says,  Eas  obliga- 
tions quaz  naturalem  prcestationem  habere  intel- 
liguntur,  palam  est  capitis  deminutione  non  perire, 
quia  civilis  ratio  naturalia  jura  corrumpere  non 
potest..  Usufruct  was  extinguished  by  the  diminu- 
tion of  the  head:  amittitur  usufructus  capitis  de- 
minutione. D.  3.  6.  §  28.  It  also  annulled  the  tes- 
tament: "Testamenta  jure  facta  inftrmantur,  cum 
is  qui  fecerit  tcstamentum  capite  deminutus  sit." 
Gaius,  2,  §  143. 

At  Common  Law.    A  head. 

Caput  comitatis  (the  head  of  the  county). 
The  sheriff;    the  king.     Spelman,  Gloss. 

A  person;  a  life.  The  upper  part  of  a 
town.     Cowell.     A  castle.     Spelman,   Gloss. 

Caput  anni.  The  beginning  of  the  year. 
Cowell. 

CAPUT  LUPINUM  (Lat).  Having  a 
wolf's  head. 

Outlaws  were  anciently  said  to  have  caput  lu- 
pinum,  and  might  be  killed  by  any  one  who  met 
them,  if  attempting  to  escape;  4  Bla.  Com.  320.  In 
the  reign  of  Edward  III.  this  power  was  restricted 
to  the  sheriff  when  armed  with  lawful  process ;  and 
this  power,  even,  disappeared,  and  the  process  of 
outlawry  was  resorted  to  merely  as  a  means  of 
compelling  an  appearance;  Co.  Litt  128  b;  4  Bla. 
Com.  284;  1  Reeve's  Hist  Eng.  Law  471.  See  Out- 
lawry. 

CAPUTAGIUM.  Head-money;  the  pay- 
ment of  head-money.  Spelman,  Gloss.; 
Cowell. 

CAR  TRUST  ASSOCIATION.  See  Roll- 
ing Stock. 

CAR  TRUST  SECURITIES.  A  name  used 
commercially  to  indicate  a  class  of  invest- 
ment securities  based  upon  the  conditional 
sale  or  hire  of  railroad  cars  or  locomotives  to 
railroad  companies  with  a  reservation  of  title 
or  lien  in  the  vendor  or  bailor  until  the  prop- 
erty is  paid  for.    See  Rolling  Stock. 

CARAT.  The  weight  of  four  grains,  used 
by  jewellers  in  weighing  precious  stones. 
Webster. 


CARCAN 


423 


CARLISLE  TABLES 


CARCAN.  In  French  Law.  An  instrument 
of  punishment,  somewhat  resembling  a  pil- 
lory. It  sometimes  signifies  the  punishment 
Itself.    Biret,  Vocab. 

CARDINAL.  The  title  given  to  one  of  the 
highest  dignitaries  of  the  church  of  Rome. 

Cardinals  are  next  to  the  pope  in  dignity:  he  is 
elected  by  them  and  out  of  their  body.  There  are 
cardinal  bishops,  cardinal  priests,  and  cardinal  dea- 
cons. See  Fleury,  Hist.  Eccles.  liv.  xxxv.  n.  17,  li.  n. 
1*;  Thomassin,  part  11.  liv.  1.  c.  53,  part  iv.  liv.  1. 
cc.  79,  80  ;  Loiseau,  Traiti  des  Ordres,  c  3,  n.  31 ; 
AndrG   Droit    Canon. 

CARDS.  Small  rectangular  pasteboards, 
on  which  are  figures  of  various  colors,  used 
for  playing  certain  games.  The  playing  of 
cards  for  amusement  is  not  forbidden;  nor 
is  gaming  for  money,  at  common  law ;  Bish. 
Stat.  Cr.  §  504. 

One  who  obtains  from  another  a  sum  of 
money  by  a  fraudulent  use  of  cards  is  guilty 
of  larceny ;  State  v.  Donaldson,  35  Utah  90, 
99  Pac.  447,  20  L.  R.  A  (N.  S.)  1104,  130  Am. 
St.  Rep.  1041. 

Cards  are  a  gambling  device;  State  v. 
Herryford,  19  Mo.  377;  State  v.  Lewis,  12 
Wis.  434. 

CARE.  Charge  or  oversight;  implying 
responsibility  for  safety  and  prosperity. 
Webst  Diet. 

It  is  used  with  reference  to  the  degree 
of  care  required  of  bailees  and  carriers.  For 
the  utmost  care,  see  Baltimore  &  O.  R.  Co.  v. 
Worthington,  21  Md.  275,  83  Am.  Dec.  57S; 
Brand  v.  R.  Co.,  8  Barb.  (N.  Y.)  308 ;  extraor- 
dinary care,  Toledo,  W.  &  W.  Ry.  Co.  v. 
Baddeley,  54  111.  19,  5  Am.  Rep.  71;  great 
care,  Brand  v.  R.  Co.,  8  Barb.  (N.  Y.)  308; 
especial  care,  Chicago  &  N.  W.  Ry.  Co.  v. 
Clark,  2  111.  App.  110 ;  proper  and  reasonable 
care,  Neal  v.  Gillett,  23  Conn.  443;  South  & 
N.  A.  R.  Co.  v.  Henlein,  52  Ala.  000,  23  Am. 
Rep.  578;  due  care,  Heathcock  v.  Pennington, 
33  N.  C.  040 ;  Butterfield  v.  R.  Co.,  10  Allen 
(Mass.)  532,  87  Am.  Dec.  078;  ordinary  care, 
State  v.  Railroad,  52  N.  H.  528 ;  Ernst  v.  R. 
Co.,  35  N.  Y.  9,  90  Am.  Dec.  701;  Smith  v. 
R.  Co.,  10  R.  I.  22;  slight  care,  Johnson  v. 
R.  Co.,  20  N.  Y.  05,  75  Am.  Dec.  375.  See 
Negligence. 

CAR  ETA  (spelled,  also,  Carrcta  and  Car- 
ecta).    A  cart;   a  cart-load. 

In  Magna  Charta  (9  Hen.  III.  c.  21)  It  Is  ordained 
that  no  sheriff  shall  take  horses  or  carts  (careta) 
without  paying  the  ancient  livery  therefor. 

CARGO.  The  entire  load  of  a  ship  or  oth- 
er vessel.  Abbott,  Shipp.;  Phile  v.  The 
Anna,  1  Dall.  (U.  S.)  197,  1  L.  Ed.  9S;  Mer- 
lin, Rupert.;  Allegre's  Adm'rs  v.  Ins.  Co.,  2 
Gill  &  J.  (Md.)  130,  20  Am.  Dec.  424.  See 
Benj.  Sales  §§  5S9,  590. 

This  term  Is  usually  applied  to  goods  only,  and 
does  not  include  human  beings  ;  1  Phill.  Ins.  185  ;  4 
Pick.  429.  But  in  a  more  extensive  and  less  tech- 
nical sense  it  includes  persons:  thus,  we  say,  A 
cargo  of  emigrants.  See  7  M.  &  G.  729,  744;  Davi- 
son v.  Von  Llngen,  113  U.  S.  49,  5  Sup.  Ct.  346,  28 
U   Ed.  885. 


CARLISLE  TABLES.  Life  and  annuity 
tables  compiled  at  Carlisle,  England,  about 
1870.  Used  by  actuaries  and  others.  See 
Life  Tables. 

CAR  MACK     ACT.      An    act   of    Congress, 
June  29,   1900,  amending  the   Hepburn  Act. 
It  supersedes  all  state  regulations; 
B.  &  Q.  R.  Co.  v.  Miller,  226  I'.  S.  513,  33  Sup. 
Ct  155,  57  L.  Ed.  323. 

CARNAL  KNOWLEDGE.  Sexual  connec- 
tion. Com.  y.  Squires,  97  Mass.  50;  Noble  v. 
State,  22  Ohio  St  541.  The  term  is  general- 
ly, if  not  exclusively,  applied  to  the  act  of  a 
male. 

In  the  statutes  relating  to  abuse  or  carnal 
knowledge  of  a  female  child  of  tender  age, 
the  word  abuse  includes  the  words  carnally 
know,  and  the  latter  term  also  includes  the 
former,  as  there  could  be  no  carnal  knowl- 
edge of  such  a  child  by  a  man  capable  of 
committing  rape,  without  injury;  Dawkins  v. 
State,  58  Ala.  370,  29  Am.  Rep.  754. 

CARNALLY  KNEW.  A  technical  phrase 
usual  in  an  indictment  to  charge  the  defend- 
ant with  the  crime  of  rape. 

These  words  were  considered  essential; 
Com.  Dig.  Indictment;  1  Ch.  Cr.  L.  243;  1 
Hale,  P.  C.  0;J2;  but  Chitty  afterwards  says 
that  it  does  not  seem  so  clear ;  3  Ch.  Cr.  L. 
812;  and  the  settled  opinion  seems  to  be  that 
the  words  "carnally  knew"  are  included  in 
the  term  "rapuit"  and  are  therefore  unneces- 
sary;  2  Hawk.  P.  C.  c.  25,  §  50 ;  2  Stark. 
Cr.  PI.  431,  n.  (e)  ;  but  it  is  safer  not  to  omit 
them;  id.;  1  Ch.  Cr.  L.  24:1;  1  East,  P.  C. 
448.  These  authorities  would  apply  in  states 
in  which  the  offence  is  described  simply  as 
the  crime  of  rape,  but  in  those  states  where 
the  crime  is  designated  by  the  words  "did 
ravish  and  carnally  know''  it  would  on  gen- 
eral principles  of  criminal  pleading  be  safer 
to  use  the  words  of  the  statute.  The  use  of 
the  words  "carnally  knew"  will  not  supply 
the  omission  of  the  word  "ravished" ;  1  Hale, 
P.  C.  628,  032;  3  Russell,  Cr.  (0th  ed.)  230. 
See  Noble  v.  State,  22  Ohio  St.  545 ;  Hawk- 
ins v.  State,  58  Ala,  378,  29  Am.  Rep.  754. 

CARRIAGE.     See  Vehicle;  Automobile. 

CARRIER.  One  who  undertakes  to  trans- 
port goods  from  one  place  to  another.  2 
Pars.  Contr.  (Sth  ed.)  »163. 

They  ai'e  either  common  or  private.  Pri- 
vate carriers  incur  the  responsibility  of  the 
exercise  of  ordinary  diligence  only,  like  other 
bailees  for  hire;   Story,  Bailm.  {  495  :    Satter- 

lee  v.  Groat,  1  Wend.    (N.  Y.)    272;    

v.  Jackson,  2  N.  C.  14;  Robertson  &  Co.  v. 
Kennedy,  2  Dana  (Ky.)  430,26  Am.  Dec.  4GG; 
2  C.  B.  877.  Special  carriers  of  goods  are 
not  insurers  and  are  only  liable  for  injuries 
caused  by  negligence;  Allis  v.  Voigt,  90  Mich. 
125,  51  N.  W.  190.  A  carrier's  liability  at- 
taches the  moment  goods  are  delivered  to 
him;    Gregory  v.  Ry.  Co.,  46  Mo.  App.  574; 


CARRIER 


424 


CARTA  MERCATORIA 


Railway  Co.  v.  Neel,  56  Ark.  279,  19  S.  W. 
963. 

See  Common  Carriers. 

CARRYING  AWAY.  Such  a  removal  or 
taking  into  possession  of  personal  property 
as  is  required  in  order  to  constitute  the 
crime  of  larceny. 

The  words  "did  take  and  carry  away"  are  a 
translation  of  the  words  cepit  et  asportavit,'  which 
were  used  in  indictments  when  legal  processes  and 
records  were  in  the  Latin  language.  But  no  single 
word  in  our  language  expresses  the  meaning  of  as- 
portavit. Hence  the  word  "away,"  or  some  other 
word,  must  be  subjoined  to  the  word  "carry,"  to 
modify  its  general  signification  and  give  It  a  special 
and  distinctive  meaning.  Com.  v.  Adams,  7  Gray 
(Mass.)   45. 

Any  removal,  however  right,  of  the  entire 
article,  which  is  not  attached  either  to  the 
soil  or  to  any  other  thing  not  removed,  is 
sufficient;  2  Bish.  Cr.  Law  §  699;  1  Dearsl. 
421;  State  v.  Wilson,  1  N.  J.  L.  439,  1  Am. 
Dec.  216.  Thus,  to  snatch  a  diamond  from  a 
lady's  ear,  which  is  instantly  dropped  among 
the  curls  of  her  heir;  1  Leach  320;  to  re- 
move sheets  from  a  bed  and  carry  them  into 
an  adjoining  room ;  1  Leach  222,  n. ;  to  take 
plate  from  a  trunk,  and  lay  it  on  the  floor 
with  intent  to  carry  it  away;  id;  to  remove 
a  package  from  one  part  of  a  wagon  to  an- 
other, with  a  view  to  steal  it;  1  Leach  236; 
have  respectively  been  holden  to  be  felonies. 
But  nothing  less  than  such  a  severance  will 
be  sufficient;  2  East,  PI.  Cr.  556;  1  Ry.  & 
M.  14;  4  Bla.  Com.  231;  2  Russ.  Cr.  96; 
Clarke,  Cr.  L.  242,  260. 

CARRYING       CONCEALED        WEAPONS. 

See  Arms. 

CARS.  See  Railroad;  Interstate  Com- 
merce Commission  ;  Rolling  Stock. 

CART.  A  carriage  for  luggage  or  burden, 
with  two  wheels,  as  distinguished  from  a 
wagon,  which  has  four  wheels.  Worcester, 
Diet. ;  Brande.  The  vehicle  in  which  crim- 
inals are  taken  to  execution.     Johnson. 

The  term  has  been  held  to  include  four- 
wheeled  vehicles,  to  carry  out  the  intent  of 
a  statute;  Fa  vers  v.  Glass,  22  Ala.  621,  58 
Am.  Dec.  272. 

CART  BOTE.  An  allowance  to  the  tenant 
of  wood  sufficient  for  carts  and  other  instru- 
ments of  husbandry.  2  Bla.  Com.  35.  See 
Bote. 

CARTA.  A  charter,  which  title  see.  Any 
written  instrument. 

In  Spanish  Law.  A  letter;  a  deed;  a  pow- 
er of  attorney.  Las  Partidas,  pt.  3,  t  18,  1. 
30. 

CARTA    DE    FORESTA.      See  Charta  de 

FORESTA. 

CARTA  MERCATORIA.  A  grant  (1303)  to 
certain  foreign  merchants,  in  return  for  cus- 
tom duties,  of  freedom  to  deal  wholesale  in 
all  cities  and  towns  of  England,  power  to  ex- 
port their  merchandise,  and  liberty  to  dwell 


where  they  pleased,  together  with  other 
rights  pertaining  to  speedy  justice;  1  Holdsw. 
Hist.  E.  L.  311. 

CARTE  BLANCHE.  The  signature  of  one 
or  more  individuals  on  a  white  paper,  with 
a  sufficient  space  left  above  it  to  write  a  note 
or  other  writing. 

In  the  course  of  business,  it  not  unfre- 
quently  occurs  that,  for  the  sake  of  conven- 
ience, signatures  in  blank  are  given  with 
authority  to  fill  them  up.  These  are  bind- 
ing upon  the  parties.  But  the  blank  must 
be  filled  up  by  the  very  person  authorized; 
Musson  v.  Bank,  6  Mart.  O.  S.  (La.)  707. 
See  Chit  Bills'  70;  Frazer  v.  D^Invilliers,  2 
Pa.  200,  44  Am.  Dec.  190.    Blank. 

CARTEL.  Agreements  between  belliger- 
ents authorizing  certain  non-hostile  inter- 
course between  one  another  which  would  oth- 
erwise be  prevented  by  the  state  of  war;  for 
example,  agreements  for  the  exchange  of 
prisoners,  for  intercommunication  by  post, 
telegraph,  telephone,  railway.     II  Op.  282. 

Cartel  ship.  X  ship  commissioned  in  time 
of  war  to  exchange  prisoners,  or  to  carry 
any  proposals  between  hostile  powers ;  she 
must  carry  no  cargo,  ammunition,  or  imple- 
ments of  war,  except  a  single  gun  for  signals. 
The  conduct  of  ships  of  this  description  can- 
not be  too  narrowly  watched.  The  service  on 
which  they  are  sent  is  so  highly  important 
to  the  interests  of  humanity  that  it  is  pecu- 
liarly incumbent  on  all  parties  to  take  care 
that  it  should  be  conducted  in  such  a  manner 
as  not  to  become  a  subject  of  jealousy  and 
distrust  between  the  two  nations ;  4  C.  Rob. 
Adm.  357.  See  Merlin,  Repert.;  Dane,  Abr. 
c.  40,  a.  6,  §  7;  1  Kent  68 ;  3  Phill.  Int.  Law 
161;  Crawford  v.  Penn,  1  Pet.  C.  C.  106,  Fed. 
Cas.  No.  3,372;  3  C.  Rob.  Adm.  141;  6  id. 
336 ;   1  Dods.  Adm.  60. 

A  written  challenge  to  a  duel. 

CART  MEN.  Persons  who  carry  goods  and 
merchandise  in  carts,  either  for  great  or 
short  distances,  for  hire. 

Cartmen  who  undertake  .  to  carry  goods 
for  hire  as  a  common  employment  are  com- 
mon carriers;  3  C.  &  K.  61;  Edw.  Bailm. 
500;  Story,  Bailm.  §  496.  And  see  Allen  v. 
Sewall,  2  Wend.  (N.  Y.)  327;  Cohen  v. 
Hume,  1  McCord  (S.  C.)  444;  Smyrl  v. 
Niolon,  2  Bail.  (S.  C.)  421,  23  Am.  Dec.  146; 
Spencer  v.  Daggett,  2  Vt.  92;  Williams  v. 
Branson,  5  N.  C.  417,  4  Am.  Dec.  562;  Bac. 
Abr.  Carriers,  A. 

CARTULARIES.  Ancient  English  records 
containing  documents  and  legal  proceedings 
— the  muniments  of  title  of  the  great  land- 
owners, and  other  miscellaneous  documents. 
2  Holdsw.  Hist.  E.  L.  273.  See  1  Poll.  & 
Maitl.  p.  xxii. 

CARUCA.  A  plow.  A  four-wheeled  car- 
riage. A  team  for  a  plow,  of  four  oxen 
abreast    See  Carucata. 


CARUCAGE 


425 


CASE 


CARUCAGE.  A  taxation  of  land  by  the 
caruca.    The  act  of  plowing. 

The  caruca  was  as  much  land  as  a  man  could 
cultivate  In  a  year  and  a  day  with  a  single  plow 
(caruca).  Carucage,  carugage,  or  caruage  was  the 
tribuate  paid  for  each  caruca  by  the  carucarius, 
or    t.  uant.     Spelman,    Gloss. ;    Cowell. 

CARUCATA,  CARUCATE.  A  certain 
quantity  of  land  used  as  the  basis  for  taxa- 
tion. A  cartload.  As  much  land  as  may  be 
tilled  by  a  single  plow  in  a  year  and  a  day. 
Skene.  de  verb.  sig.  A  plow  land  of  one  hun- 
dred acres.  Ken.  Gloss.  The  quantity  varies 
in  different  counties  from  sixty  to  one  hun- 
dred and  twenty  acres.  Whart.  See  Little- 
ton, Ten.  eclxii. 

It  may  Include  houses,  meadow,  woods,  etc.  It  is 
said  by  Littleton  to  be  the  same  as  soca,  but  has 
a  much  more  extended  signification.  Spelman, 
Gloss. ;     Blount ;     Cowell. 

Carucate  was  a  primitive  measure  of  land 
in  England.  Caruca  was  a  plow  team.  Car- 
ueate  was  based  upon  tbe  amount  of  land 
eight  oxen  could  cultivate  in  a  year.  As  a 
fiscal  unit  it  was  equivalent  to  a  hide  of  120 
acres.  An  eighth  was  a  bovate.  2  Holdsw. 
Hist.  E.  L.  56;  Maitl.  Domesday  Book  and 
Beyond  395.     See  1  L.  J.  R.  96. 

CASE.  A  question  contested  before  a 
court  of  justice.  An  action  or  suit  at  law 
or  in  equity.  Martin  v.  Hunter,  1  Wheat. 
(U.   S.)  352,  4  L.   Ed.   97. 

A  case  arising  under  a  treaty,  within  U. 
S.  Const,  art.  3,  §  2,  is  a  suit  in  which  the 
validity  or  construction  of  a  treaty  of  the 
United  States  is  drawn  in  question ;  2  Sto. 
Const.  §  1647;  and  under  the  judiciary  act 
of  17S9,  §  25,  the  United  States  supreme 
court  exercises  an  appellate  jurisdiction  in 
such  cases  decided  by  a  state  court  only 
when  the  decision  of  the  latter  is  against 
the  title,  right,  privilege,  or  exemption  set 
up  or  claimed  by  the  party  seeking  to  have 
the  decision  reviewed ;  Martin  v.  Hunter,  1 
Wheat.  (U.  S.)  356,  4  L.  Ed.  97.  The  deci- 
sion of  the  state  court  against  the  claimant 
must  be  upon  the  construction  of  the  treaty ; 
if  it  rests  upon  other  grounds  it  is  not  a  ease 
arising  under  a  treaty,  and  the  supreme 
court  is  without  any  jurisdiction;  Gill  v. 
Oliver,  11  How.  (U.  S.)  529,  13  L.  Ed.  799; 
Williams  v.  Oliver,  12  How.  (U.  S.)  Ill,  13 
L.  Ed.  915. 

In  Practice.  A  form  of  action  which  lies 
to  recover  damages  for  injuries  for  which 
the  more  ancient  forms  of  action  will  not  lie. 
Steph.  PI.,  And.  ed.  §  52. 

Case,  or,  more  fully,  action  upon  the  case,  or  tres- 
pass on  the  case,  includes  in  its  widest  sense  as- 
sumpsit and  trover,  and  distinguishes  a  class  of 
actions  in  which  the  writ  is  framed  according  to 
the  special  circumstances  of  the  case,  from  the  an- 
cient actions,  the  writs  in  which,  called  brevia  for- 
mata,  are  collected  in  the  Registrum  Brcvium. 

By  the  common  law,  and  by  the  statute  Westm. 
2d,  13  Edw.  I.  c.  21,  if  any  cause  of  action  arose  for 
which  no  remedy  had  been  provided,  a  new  writ  was 
to  be  formed,  analogous  to  those  already  in  exist- 
ence which  were  adapted  to  similar  causes  of  ac- 
tion.    The    writ  of  trespass   was   the   original   writ 


most  commonly  resorted  to  as  a  precedent;  and  in 
process  of  time  the  term  trespass  seems  to  have 
been  so  extended  as  to  include  every  species  of 
wrong  causing  an  injury,  whether  it  was  >naifeas- 
ance,  misfeasance,  or  nonfeasance,  apparently  for 
the  purpose  of  enabling  an  action  on  the  case  to  be 
brought  in  the  king's  bench.  It  thus  includes  ac- 
tions on  the  case  for  breach  of  a  parol  undertaking, 
now  called  assumpsit  (see  Assumpsit;,  and  actions 
based  upon  a  finding  and  subsequent  unlawful  con- 
version of  property,  now  called  trover  (see  Troveb), 
as  well  as  many  other  actions  upon  the  case  which 
seem  to  have  been  derived  from  other  originals  than 
the  writ  of  trespass,  as  nuisance,  deceit,  etc. 

And,  as  the  action  had  thus  lost  the  peculiar 
character  of  a  technical  trespass,  the  name  was  to 
a  great  extent  dropped,  and  actions  of  this  character 
came  to  be  known  as  actions  on  the  case. 

As  used  at  the  present  day,  case  Is  distinguished 
from  assumpsit  and  covenant,  in  that  it  is  not 
founded  upon  any  contract,  express  or  implied; 
from  trover,  which  lies  only  for  unlawful  conver- 
sion ;  from  detinue  and  replevin,  in  that  it  lies  only 
to  recover  damages  ;  and  from  trespass,  in  that  it 
lies  for  injuries  committed  without  force,  or  for 
forcible  injuries  which  damage  the  plaintiff  conse- 
quentially only,  and  in  other  respects.  See  3  R 
Eng.  Law  84;  1  Spence,  Eq.  Jur.  237;  1  Chit.  PI. 
123;    3   Bla.    Com.   41;     Poll.   Tort  645;    5  Term  648. 

A  similar  division  existed  in  the  civil  law,  in 
which  upon  nominate  contracts  an  action  distin- 
guished by  the  name  of  the  contract  was  given. 
Upon  innominate  contracts,  however,  an  action  prm- 
scriptis  verbis  (which  lay  where  the  obligation  was 
one  already  recognized  as  existing  at  law,  but  to 
which  no  name  had  been  given),  or  in  factum 
(which  was  founded  on  the  equity  of  the  particular 
case),  might  be  brought. 

The  action  lies  for: 

Torts  not  committed  with  force,  actual  or 
implied;  Metcalf  v.  Alley,  24  X.  C.  3S ;  Law 
v.  Law,  2  Gratt.  (Va.)  366;  Griffin  v.  Far- 
well,  20  Vt.  151;  as,  for  malicious  prosecu- 
tion; Muse  v.*Vidal,  6  Munf.  (Va.)  27;  Sha- 
ver v.  White,  6  Munf.  (Va.)  113,  S  Am.  Dec. 
730;  Warfield  v.  Walter,  11  Gill  &  J.  (Md.) 
80;  Hays  v.  Tounglove,  7  B.  Monr.  (Ky.i 
545;  Seay  v.  Greenwood,  21  Ala.  401;  Lally 
v.  Cantwell,  30  Mo.  App.  524;  Swift  v.  Cham- 
berlain, 3  Conn.  537;  5  M.  &  W.  1^70;  see 
Malicious  Prosecution;  fraud  in  contracts 
of  sale;  Hughes  v.  Robertson,  1  T.  B.  Monr. 
(Ky.)  215,  15  Am.  Dec.  104;  Ward  v.  Wiinan, 
17  Wend.  (N.  Y.)  193 ;  Casco  Mfg.  Co.  v.  Dix- 
on, 3  Cush.  (Mass.)  407;  Mowry  v.  Schroder, 
4  Strobh.  (S.  C.)  69;  Johnson  v.  MeDaniel. 
15  Ark.  109;  Oliver  v.  Perkins,  92  Mich.  304, 
52  N.  W.  609 ;  conspiracy  to  defame ;  Wildee 
v.  McKee,  111  Pa.  335,  2  Atl.  108,  56  Am. 
Rep.  271. 

Torts  committed  forcibly  where  the  matter 
affected  was  not  tangible;  Wetmore  v.  Rob- 
inson, 2  Conn.  529:  Wilson  v.  Wilson.  2  Vt. 
6S;  as  for  obstructing  a  private  way;  Lam- 
bert v.  Hoke,  14  Johns.  (X.  Y.i  383;  Wright 
v.  Freeman,  5  Harr.  &  J.  (Md.)  467;  Cashing 
v.  Adams,  IS  Pick.  (Mass.i  110;  Osborne  v. 
Butcher,  26  N.  J.  L.  308;  disturbing  the 
plaintiff  in  tbe  use  of  a  pew;  1  Chit.  PI.  43; 
injury  to  a  franchise. 

Torts  committed  forcibly  when  the  injury 
is  consequential  merely,  and  not  immediate ; 
Cotteral  v.  Cummins,  6  S.  &  R.  (Pa.)  348; 
Knott  r.   Digges,   6  Harr.  &  J.    (Md.)    230; 


CASE 


426 


CASE 


4  D.  &  B.  146;  Hamilton  v.  Water  Power 
Co.,  81  Mich.  21,  45  N.  W.  648;  as,  special 
damage  from  a  public  nuisance ;  Martin  v. 
Bliss,  5  Blackf.  (Ind.)  35,  32  Am.  Dec.  56; 
Garrett  v.  McKie,  1  Rich.  (S.  C.)  444,  44 
Am.  Dec.  263;  Hay  v.  Cohoes  Co.,  3  Barb. 
(N.  Y.)  42;  Beardsley  v.  Swan,  4  McLean, 
333,  Fed.  Cas.  No.  1,187;  Plumer  v.  Alexan- 
der, 12  Pa.  SI ;  Scott  v.  Bay,  3  Md.  431 ;  acts 
done  on  the  defendant's  land  which  by  im- 
mediate consequence  injure  the  plaintiff ; 
Shrieve  v.  Stokes,  8  B.  Monr.  (Ky.)  453,  48 
Am.  Dec.  401;  Woodward  v.  Aborn,  35  Me. 
271,  58  Am.  Dec.  699 ;  Hay  v.  Cohoes  Co.,  2 
N.  Y.  159,  51  Am.  Dec.  279;  Tremain  v. 
Cohoes  Co.,  2  N.  Y.  163,  51  Am.  Dec.  284; 
Thayer  v.  Brooks,  17  Ohio  4S9,  49  Am.  Dec. 
474;  Nelson  v.  Godfrey,  12  111.  20;  Whitney 
v.  Bartholomew,  21  Conn.  213.  See  Pruitt 
v.  Ellington,  59  Ala.  454;  Fleming  v.  Lock- 
wood,  36  Mont.  384,  92  Pac.  962,  14  L.  R.  A. 
(N.  S.)  628,  122  Am.  St  Rep.  375,  13  Ann. 
Cas.  263. 

Injuries  to  the  relative  rights ;  Vanhorn  v. 
Freeman,  6  N.  J.  L.  322;  Haney  v.  Town- 
send,  1  McCord  (S.  C.)  207;  Ream  v.  Rank, 
3  S.  &  R.  (Pa.)  215;  McGowen  v.  Chapen,  6 
N.  C.  61;  Durden  v.  Barnett,  7  Ala.  169; 
Hopson  v.  Boyd,  6  B.  Monr.  (Ky.)  296;  Van 
Vacter  v.  McKillip,  7  Blackf.  (Ind.)  578 ;  Wil- 
bur v.  Brown,  3  Den.  (N.  Y.)  361;  enticing 
away  servants  and  children;  4  Litt.  25;  Le- 
gaux  v.  Feasor,  1  Yeates  (Pa.)  586;  Thacker 
Coal  Co.  v.  Burke,  59  W.  Va.  253,  53  S.  E. 
161,  5  L.  R.  A.  (N.  S.)  1091,  8  Ann.  Cas.  885 ; 
seduction  of  a  daughter  or  servant;  Clough 
v.  Tenney,  5  Greenl.  (Me.)  446;  or  wife; 
Matheis  v.  Mazet,  164  Pa.  580,  30  Atl.  434. 
Also  for  criminal  conversation  with  spouse, 
by  husband;  Bedan  v.  Turney,  99  Cal.  649, 
34  Pac.  442 ;  Browning  v.  Jones,  52  111.  App. 
597;  Dalton  v.  Dregge,  99  Mich.  250,  58  N. 
W.  57;  but  not  by  wife  against  another 
woman;  Kroessin  v.  Keller,  60  Minn.  372, 
62  N.  W.  438,  27  L.  R.  A.  685,  51  Am.  St. 
Rep.  533;  for  alienation  of  affection  of 
spouse,  by  husband;  French  v.  Deane,  19 
Colo.  504,  36  Pac.  609,  24  L.  R.  A.  387;  Fra- 
tini  v.  Caslani,  66  Vt.  273,  29  Atl.  252,  44 
Am.  St  Rep.  843;  or  the  wife;  Railsback 
v.  Railsback,  12  Ind.  App.  659,  40  N.  E.  276, 
1119;  Young  v.  Young,  8  Wash.  81,  35  Pac. 
592;  Price  v..  Price,  91  la.  693,  60  N.  W. 
202,  29  L.  R.  A.  150,  51  Am.  St.  Rep.  360; 
Rice  v.  Rice,  104  Mich.  371,  62  N.  W.  833. 
See  Husband;  Wife. 

Injuries  which  result  from  negligence; 
Carey  v.  R.  Co.,  1  Cush.  (Mass.)  475,  48  Am. 
Dec.  616 ;  Cook  v.  Transp.  Co.,  1  Den.  (N.  Y.) 
91;  Ellis  v.  R.  Co.,  24  N.  C.  138;  Clifford 
v.  Richardson,  18  Vt.  620;  McCready  v.  R. 
Co.,  2  Strobh.  (S.  C.)  356 ;  Freer  v.  Cameron, 
4  Rich.  (S.  C.)  228,  55  Am.  Dec.  663 ;  Ferrier 
v.  Wood,  9  Ark.  85;  Thomasson  v.  Agnew, 
24  Miss.  93 ;  Lord  v.  Ocean  Bank,  20  Pa.  387, 
59  Am.  Dec.  728;   Fleet  y.  Hollenkemp,  13 


B.  Monr.  (Ky.)  219,  56  Am.  Dec.  563 ;  Conger 
v.  R.  Co.,  15  111.' 366;  Kerwhaker.v.  R.  Co., 
3  Ohio  St.  172,  62  Am.  Dec.  246 ;  though  the 
direct  result  of  actual  force ;  4  B.  &  C.  223 ; 
Blin  v.  Campbell,  14  Johns.  (N.  Y.)  432 ;  Dal- 
ton v.  Favour,  3  N.  H.  465;  Cole  v.  Fisher, 
11  Mass.  137;  Maull  v.  Wilson,  2  Harr. 
(Del.)  443 ;  Baldridge  v.  Allen,  24  N.  C.  206 ; 
Clallin  v.  Wilcox,  18  Vt.  605;  Schuer  v.  Vee- 
der,  7  Blackf.  (Ind.)  342;  Brennan  v.  Carpen- 
ter, 1  R,  I.  474. 

Wrongful  acts  done  under  a  legal  process 
regularly  issuing  from  a  court  of  competent 
jurisdiction ;  Watson  v.  Watson,  9  Conn.  141, 
23  Am.  Dec.  324;  Hayden  v.  Shed,  11  Mass. 
500;  Plummer  v.  Dennett,  6  Greenl.  (Me.) 
421,  20  Am.  Dec.  316;  Lovier  v.  Gilpin,  6 
Dana  (Ky.)  321;  Turner  v.  Walker,  3  Gill 
&  J.  (Md.)  377,  22  Am.  Dec.  329;  Riley  v." 
Johnston,  13  Ga.  260;  Robinson  v.  Kellum, 
6  Cal.  399 ;  Joseph  v.  Henderson,  95  Ala.  213, 
10  South.  843. 

Wrongful  acts  committed  by  the  defend- 
ant's servant  without  his  order,  but  for 
which  he  is  responsible ;  Powell  v.  Deveney, 
3  Cush.  (Mass.)  300,  50  Am.  Dec.  738; 
Broughton  V;  Whallon,  8  Wend.  (N.  Y.)  474; 
Mayor,  etc.,  of  City  of  Memphis  v.  Lasser, 
9  Humphr.  (Tenn.)  757 ;  Fleet  v.  Hollenkemp, 
13  B.  Monr.  (Ky.)  219,  56  Am.  Dec.  563; 
Samyn  v.  McClosky,  2  Ohio  St.  536;  Illinois 
Cent.  R.  Co.  v.  Reedy,  17  111.  580. 

The  infringement  of  rights  given  by  stat- 
ute; Sharp  v.  Curtiss,  15  Conn.  526;  Riddle 
v.  Proprietors  of  Locks  and  Canals,  7  Mass. 
169,  5  Am.  Dec.  35;  Savings  Inst.  v.  Makin, 
23  Me.  371;  Hunt  v.  Town  of  Pownal,  9  Vt. 
411;  Hull  v.  Richmond,  2  Woodb.  &  M.  337, 
Fed.  Cas.  No.  6,861. 

Injuries  committed  to  property  of  which 
the  plaintiff  has  the  reversion  only ;  Ashley 
v.  Ashley,  4  Gray  (Mass.)  197;  Noyes  V.  Still- 
man,  24  Conn.  15;  Hall  v.  Snowhill,  14  N.  J. 
L.  8;  Campbell  v.  Arnold,  1  Johns.  (N.  Y.) 
511;  Hilliard  v.  Dortch,  10  N.  C.  246;  Wil- 
liams v.  Lanier,  44  N.  C.  30 ;  McGowen  v. 
Chapen,  6  N.  C.  61 ;  Elliot  v.  Smith,  2  N.  H. 
430;  Ives  v.  Cress,  5  Pa.  118,  47  Am.  Dec. 
401;  Short  v.  Piper,  4  Harr.  (Del.)  181; 
Kidder  v.  Jennison,  21  Vt.  108;  Beavers  v. 
Trimmer,  25  N.  J.  L.  97 ;  Tinsman  v.  R.  Co., 
25  N.  J.  L.  255,  64  Am.  Dec.  415;  Files  v. 
Magoon,  41  Me.  104;  as  where  property  is 
in  the  hands  of  a  bailee  for  hire;  3  East 
593;  Hilliard  v.  Dortch,  10  N.  C.  246;  Haw- 
kins v.  Phythian,  8  B.  Monr.  (Ky.)  515;  also 
where  grantor  destroys  an  unrecorded  deed 
placed  in  his  hands  for  safekeeping  by  the 
grantee;  Edwards  v.  Dickinson,  102  N.  C. 
519,  9  S.  E.  456. 

As  to  the  effect  of  intention,  as  distinguish- 
ing case  from  trespass,  see  Bell  v.  Lakin,  1 
McMull.  (S.  C.)  364;  Schuer  v.  Veeder,  7 
Blackf.  (Ind.)  342;  Vandenburgh  v.  Truax, 
4  Den.  (N.  Y.)  464,  47  Am.  Dec.  268 ;  Schune- 
man  v.  Palmer,  4  Barb.  (N.  Y.)  225;  Kelly 


CASE 


427 


CASE  CERTIFIED 


v.  Lett,  35  N.  C.  50;  Moore  v.  Appleton,  2G 
Ala.  033.  In  some  states  the  distinct] 
expressly  abolished  by  statute;  Welch  v. 
Whlttemore,  25  Me.  86;  nines  v.  Kin 
8  Blackf.  (Ind.)  119;  Luttrell  v.  Hazen,  3 
Sneed  (Tenn.)  20;  Schultz  v.  Frank,  1  Wis. 
352. 

The  declaration  must  not  state  the  injury 
to  have  been  committed  vi  et  armis;  (kites 
v.  .Miles,  3  Conn.  04  I  yet  after  verdict  the 
words  vi  et  arm  is  (with  force  and  arms)  may 
be  rejected  as  surplusage;  White  v.  Marshall, 
Harp.  (S.  C.)  122];  and  should  not  conclude 
contra  paccm;  Com.  Dig.  Action  on  the  Case 
(C,  3). 

Damages  not  resulting  necessarily  from 
the  acts  complained  of  must  be  specially 
stated;  Rowand  v.  Bellinger,  3  Strobh.  (S. 
C.)  373;  Swan  v.  Tappan,  5  Cush.  (.Mass.) 
104;  Morris  v.  McCamey,  9  Ga.  160;  Hall 
v.  Kitson,  4  Chandl.  (Wis.)  20.  Evidence 
which  shows  the  injury  to  be  trespass  will 
not  support  case ;  Dillingham  v.  Snow,  5 
Mass.  560;  Burdick  v.  Worrall,  4  Barb.  (N. 
Y.)  596;  Scott  v.  Bay,  3  Md.  431. 

The  plea  of  not  guilty  raises  the  general 
issue;  Henion  v.  Morton,  2  Ashm.  (Pa.)  150. 
I'nder  this  plea  almost  any  matter  may  be 
given  in  evidence,  except  the  statute  of  lim- 
itations ;  the  rule  is  modified  in  actions 
for  slander  and  a  few  other  instances;  1 
Wins.  Saund.  130. 

The  judgment  is  that  the  plaintiff  recover 
a  sum  of  money  ascertained  by  a  jury  for 
his  damages  sustained  by  the  commission 
of  the  grievances  complained  of  in  the  dec- 
laration ;  Cox  v.  Skeen,  24  N.  C.  221,  38  Am. 
Dec  691;  Burdick  v.  Glasko,  IS  Conn.  494; 
with  costs.  See  Act.  &  Def.  ch.  xxxiv.,  as  to 
cases  in  which  this  action  will  lie. 

"Case  or  controversy"  as  used  in  the  ju- 
diciary act,  imply  the  existence  of  present 
or  possible  adverse  parties  whose  conten- 
tions are  submitted  to  the  court  for  adjudi- 
cation ;  Muskrat  v.  U.  S.,  219  U.  S.  346,  31 
Sup.  Ct.  250,  55  L.  Ed.  246. 

Cases,  in  the  title  of  an  old  law  book,  may 
mean  moot  cases  or  questions  put  by  the 
author  for  the  consideration  of  the  reader ; 
e.  g.,  Stillingfleet's  "Ecclesiastical  Cases 
.     .     .     Stated  and  Resolved,"  1698-1704. 

CASE  CERTIFIED.  Where  there  is  a  dif- 
ference Of  opinion  between  the  judges  of  the 
circuit  court,  they  may  certify  the  question 
to  the  supreme  court  of  the  United  States, 
but  it  must  be  a  distinct  point  or  proposi- 
tion of  law  so  clearly  stated  that  it  can  be 
answered  without  regard  to  the  other  is- 
sues of  law  or  fact  in  the  case;  Fire  Ins. 
Ass'n  v.  Wickham,  12S  U.  S.  426,  9  Sup.  Ct. 
113,  32  L.  Ed.  503;  U.  S.  v.  Perrin,  131  U. 
S.  55,  9  Sup.  Ct.  681,  38  L.  Ed.  SS;  U.  S. 
v.  Reilly,  131  U.  S.  58,  9  Sup.  Ct.  664,  33 
L.  Ed.  75.  It  must  not  involve  the  whole 
case  and  must  be  a  question  of  law  only ; 
Fire  Ins.  Ass'n  v.  Wickham,  12S  U.  S.  426, 


9  Sup.  Ct.  113,  32  L.  Ed. 

be  certified   in  advance  of  a   regular   trial ; 

r.  S.  v.  Perrin,  131  U.  S. 

3S  L.  Ed.  88. 

CASE  LAW.  The  body  of  law  created  by 
judicial  decisions,  as  dlstingui  i  law 

derived    from    statutory    and  irees. 

See  Precedents  ;  Stare  Decisis. 

CASE   MADE.     A  statement  of  facts  in  re- 
lation to  a  disputed  point  of  law, 
by  both  parties  and  submitted  to  the  court 
without   a   preceding    action.     This    is   only 
found  in  the  Code  states.     See  De  Armond 
v.    Whitaker,   99   Ala.   252,   13    South 
Farthing  v.   Carrington,   116  X.   C.   315,   22 
S.   I..  9;  Bradford  v.  Buchanan,  39  S.  C. 
17  S.  E.  501. 

CASE  STATED.  A  statement  of  all  the 
facts  of  a  case,  with  the  names  of  the  wit- 
nesses, and  a  detail  of  the  documents  which 
are  to  support  them.     A  brief. 

An  agreement  in  writing,  between  a  plain- 
tiff and  defendant,  that  the  facts  in  dispute 
between  them  are  as  therein  agreed  upon 
and  set  forth.  Diehl  v.  Ihrie,  3  Whart.  (Pa.) 
143. 

Some  process  of  this  kind  exists,  it  is  presumed, 
in  all  the  states,  for  the  purpose  of  enabling  par- 
ties who  agree  upon  the  facts  to  dispense  with  a 
formal  trial  to  ascertain  what  is  already  known, 
and  secure  a  decision  upon  the  law  involved  merely. 
These  agreements  are  called  also  agreed  cases, 
cases  agreed  on,  agreed  statements,  etc.  In  chan- 
cery, also,  when  a  question  of  mere  law  comes  up, 
it  is  referred  to  the  king's  bench,  or  common  pleas, 
upon  a  case  stated  for  the  purpose  ;  3  Sharsw.  Bla. 
Com.  453,  n. ;    6  Term  313. 

A  case  stated  usually  embodies  a  written 
statement  of  the  facts  in  the  case  consented 
to  by  both  parties  as  correct,  and  submitted 
to  the  court  by  their  agreement,  that  a  deci- 
sion may  be  rendered  upon  the  court's  con- 
clusions of  law  on  the  facts  stated,  without 
a  trial  by  jury. 

The  facts  being  thus  ascertained,  it  is 
left  for  the  court  to  decide  for  which  party 
is  the  law.  As  no  writ  of  error  lies  on  a 
judgment  rendered  on  a  case  stated ;  Dane, 
Abr.  c.  137,  art.  4,  §  7 ;  it  is  usual  in  the 
agreement  to  insert  a  clause  that  the  case 
stated  shall  be  considered  in  the  nature  of 
special  verdict.  In  that  case,  a  writ  of  error 
lies  on  the  judgment  which  may  be  rendered 
upon  it.  But  a  writ  of  error  will  also  lie 
on  a  Judgment  on  a  case  stated,  when  the 
parties  have  agreed  to  it;  Fuller  v.  Trevoir, 
8  S.  &  R.  (Pa.)  529;  and  it  Is  usual  to  in- 
clude such  a  provision. 

There  must  be  a  pending  action,  in  which 
ISC  is  stated;  Smith  v.  Kline,  4  D.  R. 
(Pa.)  490;  it  must  stale  all  the  facts;  and 
cannot  refer  to  outside  documents;  Hemphill 
v.  Yerkes,  132  Pa.  545,  19  Atl.  342,  19  Am. 
St.  Rep.  607;  the  court  must  decide  on  the 
case  stated,  not  on  the  report  of  a  master 
subsequently  appointed  ;  Frailey  v.  Legion  of 
Honor,  132  Pa.  578,  20  Atl.  6S4;  and  cannot 


CASE  STATED 


428 


CASE  SYSTEM 


go  outside  of  the  case  stated  in  deciding  it; 
Northampton  Co.  v.  Ry.  Co.,  148  Pa.  2S2, 
23  Atl.  S95;  Mutchler  v.  City  of  Easton,  148 
Pa.  441,  23  Atl.  1109;  Com.  v.  Howard,  149 
Pa.  302,  24  Atl.  30S;  if  no  right  of  appeal 
is  reserved,  the  decision  of  the  court  is  final; 
Com.  v.  Callahan,  153  Pa.  625,  25  Atl.  1000. 
Where  a  controversy  is  submitted  to  a 
court  upon  a  case  stated,  but  which  fails 
to  recite  that  it  is  submitted  for  its  opinion 
on  the  law  and  judgment,  the  court  is  with- 
out jurisdiction  to  render  judgment;  Tyson 
v.  Bank,  77  Md.  412,  26  Atl.  520,  23  L.  R. 
A.  161.  Where  an  agreed  statement  was 
made  by  the  parties  under  a  mistake  of 
facts,  it  was  a  proper  subject  of  amendment ; 
Levy  v.  Sheehan,  3  Wash.  St.  420,  28  Pac. 
748. 

CASE  SYSTEM.  A  method  of  teaching  or 
studying  the  science  of  the  law  by  a  study 
of  the  cases  historically,  or  by  the  inductive 
method.  It  was  introduced  in  the  Law 
School  of  Harvard  University  in  1869-70  by 
Christopher  C.  Langdell,  Dane  Professor  of 
Law.  It  is  usually  based  upon  printed  col- 
lections of  selected  cases  arranged  chrono- 
logically under  appropriate  titles.  The  sys- 
tem is  not  necessarily  based  upon  the  exclu- 
sive use  of  cases,  but  the  cases  are  made  the 
basis  of  instruction.  Text-books  may  be 
used  for  the  purpose  of  reference  and  col- 
lateral reading,  and  are  so  used  by  many 
teachers  under  this  system.  It  has  been 
very  generally  adopted  in  law  schools. 

The  reasons  for  the  adoption  of  this  sys- 
tem of  instruction  are  given  in  a  paper  read 
before  the  Section  of  Legal  Education  of  the 
American  Bar  Association  in  1S94  by  Pro- 
fessor W.  A.  Keener,  formerly  of  the  Law 
School  of  Harvard  University. 

"1.  That  law,  like  other  applied  sciences, 
should  be  studied  in  its  application,  if  one 
is  to  acquire  a  working  knowledge  thereof. 
2.  That  this  is  entirely  feasible  for  the  rea- 
son that  while  the  adjudged  cases  are  num- 
erous the  principles  controlling  them  are 
comparatively  few.  3.  That  it  is  by  the 
study  of  cases  that  one  is  to  acquire  the 
power  of  legal  reasoning,  discrimination  and 
judgment,  qualities  indispensable  to  the  prac- 
tising lawyer.  4.  That  the  study  of  cases 
best  develops  the  power  to  analyze  and  to 
state  clearly  and  concisely  a  complicated 
state  of  facts,  a  power  which,  in  no  small 
degree,  distinguished  the  good  from  the  poor 
and  indifferent  lawyer.  5.  That  the  system, 
because  of  the  study  of  fundamental  prin- 
ciples, avoids  the  danger  of  producing  a 
mere  case  lawyer,  while  it  furnishes,  because 
the  principles  are  studied  in  their  applica- 
tion to  facts,  an  effectual  preventive  of  any 
tendency  to  mere  academic  learning.  6.  That 
the  student,  by  the  study  of  cases,  not  only 
follows  the  law  in  its  growth  and  develop- 
ment, but  thereby  acquires  the  habit  of  legal 
thought,  which  can  be  acquired  only  by  the 


study  of  cases,  and  which  must  be  acquired 
by  him  either  as  a  student,  or  after  he  has 
become  a  practitioner,  if  he  is  to  attain  any 
success  as  a  lawyer.  7.  That  it  is  the  best 
adapted  to  exciting  and  holding  the  interest 
of  the  student,  and  is,  therefore,  best  adapt- 
ed to  making  a  lasting  impression  upon  his 
mind.  8.  That  it  is  a  method  distinctly  pro- 
ductive of  individuality  in  teaching  and  of 
a  scientific  spirit  of  investigation,  independ- 
ence, and  self-reliance  on  the  part  of  the 
student."  Reprinted  in  28  Am.  L.  Rev.  709. 
See  also  24  id.  211;  27  id.  801;  12  Harv. 
L.  Rev.  203,  418;  9  id.  169;  14  id.  258;  27 
Am.  L.  Reg.  416;  Report  of  Amer.  Bar 
Assoc.  1895,  1896. 

CASH.  That  which  circulates  as  money, 
including  bank  bills,  but  not  mere  bills  re« 
ceivable.  The  provision  of  the  limited  part- 
nership acts  requiring  "actual  cash  pay- 
ment" by  the  special  partner  is  not  complied 
with  by  the  delivery  to  the  firm  of  promis- 
sory notes,  which  are  received  and  treated  as 
cash;  Pierce  v.  Bryant,  5  Allen  (Mass.)  91; 
nor  of  credits,  Van  Ingen  v.  Whitman,  62 
N.  Y.  513;  nor  of  post-dated  checks,  Durant 
v.  Abendroth,  69  N.  Y.  148,  25  Am.  Rep.  158 ; 
though  regular  checks  of  third  parties,  con- 
ceded to  represent  cash,  have  been  allowed; 
Hogg  v.  Orgill,  34  Pa.  344. 

Cash  price  is  the  price  of  articles  paid  for 
in  cash  at  the  time  of  purchase,  in  distinc- 
tion from  the  barter  and  credit  prices.  A 
sale  for  cash  is  a  sale  fqr  money  in  hand; 
Steward  v.  Scudder,  24  N.  J.  L.  101. 

CASH-BOOK.  A  book  in  which  a  mer- 
chant enters  an  account  of  all  the  cash  he 
receives  or  pays.  An  entry  of  the  same 
thing  ought  to  be  made,  under  the  proper 
dates,  in  the  journal.  The  object  of  the 
cash-book  is  to  afford  a  constant  facility  to 
ascertain  the  true  state  of  a  man's  cash. 
Pardessus,  n.  87. 

CASH  REGISTER.  In  a  prosecution  for 
selling  liquor  on  certain  days,  cash  register 
records  were  held  inadmissible  to  sustain  the 
testimony  of  a  party  to  the  transaction  that 
liquor  had  not  been  sold ;  Cullinan  v.  Mon- 
crief,  90  App.  Div.  538,  85  N.  Y.  Supp.  745. 
They  are  not  books  of  account,  but  memo- 
randa made  by  a  party  in  his  own  interest. 
See  note  in  13  Yale  L.  J.  397. 

CASHIER.  An  officer  of  a  moneyed  insti- 
tution, or  of  a  private  person  or  firm,  who  is 
entitled  by  his  office  to  take  care  of  the 
cash  or  money  of  such  institution,  person,  or 
firm. 

The  cashier  of  a  bank  is  usually  intrusted 
with  all  the  funds  of  the  bank,  its  notes, 
bills,  and  other  choses  in  action,  to  be  used 
from  time  to  time  for  the  ordinary  and  ex- 
traordinary exigencies  of  the  bank.  He 
usually  receives,  directly,  or  through  subor- 
dinate officers,  all  moneys  and  notes  of  the 
bank;  delivers  up  all  discounted  notes  and 


CASHIER 


429 


CASH IKK 


other  securities;  signs  drafts  on  correspond- 
ing banks,  and,  with  the  president,  the  notes 
payable  on  demand  issued  by  the  bank ;  and, 
as  an  executive  officer  of  the  bank,  transacts 
much  of  its  general  business.  He  is  the 
chief  executive  officer  of  the  bank;  Morse, 
Bank.  §  152  ;  Minor  v.  Bank,  1  Pet.  (U.  S.) 
46,  7  L.  Ed.  47;  Bissell  v.  Bank,  69  Pa.  415. 
He  is  the  custodian  of  its  money,  securities, 
books,  and  valuable  papers ;  Mason  v.  Moore, 
73  Ohio  St.  275,  76  X.  B.  932,  4  L.  R.  A.  (N. 
S.)  597,  4  Ann.  Cas.  -MO.  He  may  borrow 
money  for  the  use  of  the  bank  and  pledge 
notes  owned  by  it  as  security  for  the  loan; 
Citizens'  Bank  v.  Bank,  126  Ky.  169,  103 
S.  W.  219,  11  L.  R.  A.  (N.  S.)  598,  128  Am. 
St.  Rep.  282.  He  may  certify  clicks:  Mer- 
chants' Nat  Bank  v.  Bank,  10  Wall.  (I'.  S.) 
604,  19  L.  Ed.  1008.  He  will  bind  the  bank 
by  his  contract  to  pay  commissions  for  the 
disposal  of  its  land  through  a  broker,  but 
which,  through  a  mistake  in  identity,  the 
bank  does  not  own;  Arnold  v.  Bank,  126 
Wis.  362,  105  N.  \V.  S28,  3  L.  R.  A.  (N.  S.) 
580. 

He  need  not  be  a  stockholder;  indeed, 
some  bank  charters  prohibit  him  from  own- 
ing stock  in  the  bank.  He  usually  gives  se- 
curity for  the  faithful  discharge  of  his 
trusts.  It  is  his  duty  to  make  reports  to  the 
proper  state  officer  (in  banks  incorporated 
under  the  national  bank  act  to  the  comp- 
troller of  the  currency;  U.  S.  R.  S.  §  5210) 
of  the  condition  of  the  bank,  as  provided 
by  law. 

In  general,  the  bank  is  bound  by  the  acts 
of  the  cashier  within  the  scope  of  his  au- 
thority, express  or  implied ;  Minor  v.  Bank, 
1  Pet.  (U.  S.)  46,  70,  7  L.  Ed.  47;  Fleckner 
v.  Bank,  8  Wheat.  (U.  S.)  361,  5  L.  Ed.  631 ; 
Merchants'  Nat.  Bank  v.  Bank,  10  Wall.  (U. 
S.)  604,  19  L.  Ed.  1008;  Wild  v.  Bank,  3 
Mas.  505,  Fed.  Cas.  No.  17,646;  Matthews  v. 
Nat.  Bank,  1  Holmes  396,  Fed.  Cas.  Xo. 
9,2S6;  Pendleton  v.  Bank,  1  T.  B.  Monr. 
(Ky.)  179;  Davenport  v.  Stone,  104  Mich.  521, 
62  N.  W.  722,  53  Am.  St.  Rep.  467.  It  is 
bound  by  his  act  in  drawing  checks  in  its 
name,  though  with  the  intent  to  apply  the 
proceeds  to  his  own  use;  Phillips  v.  Bank, 
67  Hun  (N.  Y.)  378,  22  N.  Y.  Supp.  254; 
Lowndes  v.  Bank,  82  Conn.  8,  72  Atl.  150, 
22  L.  R.  A.  (N.  S.)  408.  He  may  endorse  to 
himself  and  sue  on  a  note  payable  to  the 
bank;  Young  v.  Hudson,  99  Mo.  102,  12  S. 
W.  632.  But  the  bank  is  not  bound  by  a  dec- 
laration of  the  cashier  not  within  the  scope 
of  his  authority ;  as  if,  when  a  note  is  about 
to  be  discounted  by  the  bank,  he  tells  a  per- 
son that  he  will  incur  no  responsibility  by 
becoming  an  indorser  on  such  note ;  Bank 
of  U.  S.  v.  Dunn,  6  Pet.  (U.  S.)  51,  8  L.  Ed. 
316;  see  West  St.  Louis  Sav.  Bank  v.  Bank, 
95  U.  S.  557,  24  L.  Ed.  490;  President,  etc., 
of  Salem  Bank  v.  Bank,  17  Mass.  1,  9  Am. 
Dec.  Ill;  State  Bank  at  Elizabeth  v.  Chet- 


wood,  8  N.  J.  L.  1;  Bank  of  Kentucky  v. 
Bank,  1  Pars.  Eq.  Cas.  (Pa.)  240.  He  has  no 
authority  to  accept  eertifi<-,u<s  of  the  capital 
stock  of  an  insurance  company  in  payment 
of  a  debt  due  the  bank ;  Bank  of  Commerce 
v.  Bart,  :;7  Neb.  lit:,  r,r,  \.  w.  631,  20  L.  R 
A.  780,  40  Am.  St.  Rep.  479.  Be  may  Dot 
accept  a  new  note,  so  as  to  discharge  a  sure- 
ty on  the  first  note;  Gray  v.  Bank,  81  Md. 
631,  32  Atl.  518.  He  may  not  give  away, 
surrender,  or  release  the  bank's  securl 
1  Dan.  Neg.  Inst  §  395;  Morse,  Bunks  & 
Bankg.   §    169. 

Where  a  cashier  does  acts  on  behalf  of  a 
bank  which  are  not  against  public  policy 
or  criminal,  when  once  executed  in  whole 
or  part,  they  are  binding  on  the  bank,  as  it 
cannot  enjoy  the  benefits  and  escape  the  lia- 
bilities; Owens  v.  Stapp,  32  111.  App.  653; 
a  cashier  of  a  bank  has  authority  to  have 
the  paper  of  the  bank  rediscounted,  in  the 
usual  course  of  business;  Davenport  v. 
Stone,  104  Mich.  521,  02  X.  W.  722,  53  Am. 
St  Rep.  467.  Merely  by  virtue  of  his  office, 
he  has  no  implied  power  to  receive  money 
for  interest  in  advance  on  a  note  owned  by 
the  bank,  and  to  agree  to  extend  the  time 
of  payment,  thus  discharging  an  indorser 
from  liability;  Bank  of  Ravenswood  v.  Wet- 
zel, 58  W.  Ya.  1,  50  S.  E.  SS6,  70  L.  R.  A. 
305,  6  Ann.  Cas.  48;  Vanderford  v.  Bank, 
105  .Md.  164,  66  Atl.  47,  10  L.  R.  A.  (X.  S.) 
129  (a  case  under  the  negotiable  instrument 
law).  When  the  cashier  of  a  bank  instituted 
an  action  in  the  name  of  the  bank  commenc- 
ed by  capias  issued  on  his  affidavit,  alleging 
his  connection  with  the  bank,  it  will  be  pre- 
sumed that  he  has  authority  to  do  so;  Wacta- 
muth  v.  Bank,  96  Mich.  426,  56  X.  W.  9. 
21  L.  R.  A.  27S.  A  banking  corporation, 
whose  charter  does  not  otherwise  provide, 
may  be  represented  by  its  cashier  in  trans- 
actions outside  of  his  ordinary  duties,  with- 
out his  authority  to  do  so  being  in  writing, 
or  appearing  in  the  records  of  the  proceed- 
ings of  the  directors,  and  where  the  cashier 
has  so  acted  for  a  series  of  years  without 
objection,  the  bank  is  estopped  to  deny  his 
authority ;  Martin  v.  Webb,  110  U.  b.  7,  3 
Sup.  Ct.  42S,  28  L.  Ed.  49. 

The  mere  notification  by  the  cashier  to 
his  individual  creditor  that  he  has  placed 
the  amount  of  the  debt  to  the  hitter's  credit 
on  the  books  of  the  bank,  followed  by  the 
honoring  of  his  check  for  a  portion  of  the 
amount,  does  not  charge  the  bank  with  re- 
sponsibility for  the  credit;  Langlois  v.  Grag- 
non,  123  La.  453,  49  South.  IS,  22  L.  R.  A. 
(N.  S.)  414. 

He  has  no  authority  to  bind  the  bank  by  a 
pledge  of  its  credit  to  secure  a  discount  of 
his  own  notes  for  the  benefit  of  a  corpora- 
tion in  which  he  was  a  stockholder;  State 
Nat.  Bank  v.  Bank,  66  Fed.  691,  14  C.  C. 
A.  61 ;  nor  has  he  authority  to  sell  property 
belonging  to  the  bank;   Greenawalt  v.    YVil- 


CASHIER 


430 


CASTING-VOTE 


.son,  52  Kan.  109,  34  Pac.  403;  nor  has  he 
power  to  bind  the  bank  to  pay  the  draft  of 
a  third  person  on  one  of  its  customers,  to  be 
drawn  at  a  future  day,  when  it  expects 
to  have  a  deposit  from  him  sufficient  to  cov- 
er it;  Flannagan  v.  Bank,  56  Fed.  950,  23 
L.  R.  A.  836;  nor  to  assign  collaterals  be- 
longing to  himself,  which  were  given  to  se- 
cure a  loan  to  another  person  for  the  cash- 
ier's benefit;  Merchants'  Nat.  Bank  v. 
Demere,  92  Ga.  735,  19  S.  E.  38. 

The  power  of  a  bauk  cashier  to  transfer 
notes  and  securities  held  by  the  bank  can 
be  questioned  only  by  the  bank  or  its  repre- 
sentative;  Haugan  v.  Sunwall,  60  Minn.  367, 
62  N.  W.  398. 

See   National   Bank;   Directors  ;   Agent. 

In  Military  Law.  To  deprive  a  military 
officer  of  his  office.    See  Art  of  War,  art  14. 

CASSARE.  To  quash;  to  render  void;  to 
break.     Du  Cange. 

CASSATION.  In  French  Law.  A  decision 
emanating  from  the  sovereign  authority,  by 
which  a  decree  or  judgment  in  the  court  of 
last  resort  is  set  aside  or  annulled.  See 
Coub   de  Cassation. 

CASSETUR  BREVE  (Lat  that  the  writ 
be  quashed).  A  judgment  sometimes  enter- 
ed against  a  plaintiff  at  his  request  when,  in 
consequence  of  allegations  of  the  defendant, 
he  can  no  longer  prosecute  his  suit  with  ef- 
fect. 

The  effect  of  such  entry  is  to  stop  pro- 
ceedings, and  exonerate  the  plaintiff  from 
liability  for  future  costs,  leaving  him  free 
to  sue  out  new  process;  3  Bla.  Com.  303.  See 
Gould,   PL  c.  5,  §  139;    5  Term  634. 

CAST.  A  term  used  in  connection  with 
the  imposition  upon  a  party  litigant  of  costs 
in  the  suit:  A  is  cast  for  the  costs  of  the 
case. 

CASTELL0RUM  0PERATI0.  In  Old 
English  Law.  Service  or  labor  done  by  in- 
ferior tenants  for  the  building  and  uphold- 
ing of  castles  and  public  places  of  defence. 

Towards  this  some  gave  their  personal  service, 
and  others,  a  contribution  of  money  or  goods.  This 
was  one  branch  of  the  trinoda  necessitas ;  1  Bla. 
Com.  263  ;  from  which  no  lands  could  be  exempted 
under  the  Saxons;  though  immunity  was  sometimes 
allowed  after  the  conquest ;  Kennett,  Paroch.  Ant. 
114 ;     Cowell. 

CASTIGAT0RY.  An  engine  used  to  pun- 
ish women  who  have  been  convicted  of  be- 
ing common  scolds.  It  is  sometimes  called 
the  trebucket,  tumbrel,  ducking-stool,  or 
cucking-stool.  This  barbarous  punishment 
has  perhaps  never  been  inflicted  in  the  Unit- 
ed States;  James  v.  Com.,  12  S.  &  R.  (Pa.) 
2,25. 

CASTING-VOTE.  The  privilege  which 
trie  presiding  officer  possesses  of  deciding  a 
question  where  the  body  is  equally  divided. 
It  sometimes  signifies  the  single  vote  of  a 
person  who  never  votes  except  in  the  case 
of  a  tie;    sometimes  the  double  vote  of  a 


person  who  first  votes  with  the  rest,  and 
then  upon  a  tie  creates  a  majority  by  giving 
a  second  vote;  Christian's  note  to  1  Bla. 
Com.  18.  The  vice-president  of  the  United 
States,  as  president  of  the  senate,  has  the 
casting-vote  when  that  body  is  equally  di- 
vided, but  cannot  vote  at  any  other  time; 
Const  I.  3.  This  is  a  provision  frequently 
made,  though  in  some  cases  the  presiding 
officer,  after  giving  his  vote  with  the  other 
members,  is  allowed  to  decide  the  question 
in  case  of  a  tie;  People  v.  Church,  48  Barb. 
(N.  Y.)  603. 

A  casting  vote  neither  exists  in  corpora- 
tions or  elsewhere,  unless  it  is  expressly  giv- 
en by  statute  or  charter,  or,  what  is  equiva- 
lent, exists  by  immemorial  usage;  and  in 
such  cases  it  cannot  be  created  by  a  by-law ; 
6  T.  R.  732 ;  see  2  B.  &  Ad.  704. 

See  Meeting. 

CASTRATION.  The  act  of  gelding.  When 
this  act  is  maliciously  performed  upon  a 
man,  it  is  a  mayhem,  and  punishable  as 
such,  although  the  sufferer  consented  to  it; 
2  Bish.  Cr.  Law  §§  1001,  1008.  By  the  an- 
cient law  of  England  the  crime  was  punish- 
ed by  retaliation,  membrum  pro  membro;  Co. 
3d  Inst.  118.  It  is  punished  in  the  United 
States,  generally,  by  fine  and  imprisonment. 
The  civil  law  punished  it  with  death ;  Dig. 
74.  8.  4.  2.  For  the  French  law,  vide  Code 
Penal  art.  316.  The  consequences  of  castra- 
tion, when  complete,  are  impotence  and  ste- 
rility;   1  Beck,  Med.  Jur.  72. 

Voluntary  castration  after  marriage  is  no 
ground  of  divorce ;  Berger  v.  Berger,  23  Pa. 
Co.  Ct  R.  232. 

CASU    CONSIMILI.     See  Consimili  Casu. 

CASU  PROVISO  (Dat  in  the  case  provid- 
ed for).  A  writ  of  entry  framed  under  the 
provisions  of  the  statute  of  Gloucester  (6 
Edw.  I.)  c.  7,  which  lay  for  the  benefit  of  the 
reversioner  when  a  tenant  in  dower  aliened 
in  fee  or  for  life. 

It  seems  to  have  received  this  name  to  distinquish 
it  from  a  similar  writ  framed  under  the  provisions 
of  the  statute  Westm.  2d  (13  Edw.  I.)  c.  24,  where  a 
tenant  by  curtesy  had  alienated  as  above,  and 
which  was  known  emphatically  as  the  writ  in  con- 
simili  casu. 

The  writ  is  now  practically  obsolete. 
Fitzh.  Nat.  Brev.  205;    Dane,  Abr.  Index. 

CASUAL  EJECTOR.  The  person  supposed 
to  perform  the  fictitious  ouster  of  the  tenant 
of  the  demandant  in  an  action  of  ejectment 
See  Ejectment. 

CASUALTY.  Inevitable  accident.  Un- 
foreseen circumstances  not  to  be  guarded 
against  by  human  agency,  and  in  which 
man  takes  no  part  Story,  Bailm.  §  240;  1 
Pars.  Contr.  543;  2  Whart  Negl.  8th  ed. 
*159,  160.  See  17  C.  B.  N.  S.  51:  Waldeck 
v.  Ins.  Co.  56  Wis.  98,  14  N.  W.  1. 

CASUALTY      INSURANCE.      See      Insub- 

ANCE. 


CASUS  FCEDEIIIS 


431 


CATCHING  BARGAIN 


CASUS  FOEDERIS  (Lat.).     In  Internation-  j  Cas.   136;    1    P.   Wins.    312:    1   Cro.   Car.   7; 


al    Law.     A    case   within   the  stipulations   of 
a  treaty  of  alliance. 

The  question  whether,  In  case  of  a  treaty  of  alli- 
ance, a  nation  is  bound  to  assist  Its  ally  in  war 
against  a  third  nation,  is  determined  in  a  great 
measure  by  the  justice  or  injustice  of  the  war.  If 
manifestly  unjust  on  the  part  of  the  ally,  it  cannot 
be  considered  as  c<  I  in-    Grotius,  b.  2,  c.  25  ; 

Vattel,  b.  2,  c.  12,  §  1C8. 

See  1  Kent  49. 

In  Commercial  Law.  The  case  or  event 
contemplated  by  the  parties  to  a  contract, 
or  stipulated  for  by  it,  or  coming  within  its 
terms.     Black,  Law  Diet 

CASUS     FORTUITUS     (Lat).     An    inevi 


2  Atk.  133;  2  Bwanst  147;  L.  R.  8  Ch.  Ap. 
4S4;  L.  R.  10  Bq.  641.  It  has  been  said  that 
all  persons  dealing  for  a  reversionary  in- 
terest  are  subject  to  this  rule:  but  it  may 
be  doubted  whether  the  course  of  dec! 
authorizes    so   extensive   a    <  and 

whether,  in  order  to  constitute  a  title  to  re- 
lief, the  reversioner  must  not  combine  the 
character  of  lmir;  2  Bwanst  148,  n.  See  l 
Ch.  Pr.  112,  118,  n..  168,  828,  BS8;  - 
mere  hard  bargain  is  not  sufficient  ground 
for  relief* 

The  English  lawon  this  subject  was  alter- 
ed by  stat.  31  and  32  Vic.  c.  4.     Before  that 


table  accident.    A  loss  happening  in  spite  of    act   slight   inadequacy  of  consideration 
all  human  effort  and  sagacity.     3  Kent  217,    sufficient  to   set    the  contract   aside;    under 
300-     Wharf.    NegL   §§  113,    553-  |  the  act  onlv  P°sitive  unfairness  was  relieved 

It  includes  such  perils  of'the  sea  as  strokes!  against;   Bisph.  Bq.  §  221.     Under  the  Mon- 
of  lightning,  etc.     A  loss  happening  through    eylenders'  Act,  1900,  the  courts  have  power 
the  agency  of  rats  was  held  an  unforeseen,  !  to  re-open   catching  bargains   where  the  tn- 
but  not  an  inevitable,  accident.     Bullard  v.    terest  is  excessive  and  the  transaction  is  un- 
Ins.  Co.,  1  Curt  C.  C.  14S,  Fed.  Cas.  No.  2,-  ■  conscionable,   and   where  the  interest  is  ex- 
122.    The  happening  of  a  casus  fortuitus  ex-    cesslve  and   the  transaction  is  such   that  a 
cuses    shipowners    from   liability    for   goods    court  of  equity  would  give  relief;    [1906]  A. 
conveyed;    3  Kent  216;    L.  R.  1  C.  P.  D.  143.  I  C.  4G9;  [1903]  1  K.  B.  705;  [1906]  1  K.  B.  79, 
».«...      ...-««    r,   a.%       a  „,  „„„«  I  where  75  per  cent  was  held  reasonable  under 

CASUS  MAJOR    (Lat.).    An  unusual  acci-    ^  circumstances     This  act  does  not  include 

dent     Story,   Bailm.  §  -40.  pawnbrokers,  registered  building  or  loan  so- 

CASUS    OMISSUS    (Lat.).     A  case   which    cieties,  banking  or  insurance  companies,  etc. 
is  not  provided  for.     When  such  cases  arise    Money  lenders  are  subjected  to  having  their 


In  statutes  which  are  intended  to  provide 
for  all  cases  of  a  given  character  which  may 
arise,   the  common   law   governs;    5  Co.   38; 


contracts  judicially  varied  in  the  interest  of 
borrowers,  but  the  rights  of  bona  fide  as- 
signees or  holders  for  value  without  notice 


11  East  1;  Cresoe  v.  Laidley,  2  Binn.  (Pa.)  I  may  not  De  affected.  Money  lenders  are  ob- 
liged to  register.  Belloi,  Bargains  with  Mon- 
ey-Lenders. See  Chesterfield  v.  Janssen,  1 
Lead.  Cas.  in  Eq.  773,  and  notes.  The  con- 
tract may  be  for  a  loan,  sale,  annuit: 
mortgage ;  16  Ves.  512 ;  L.  R.  10  Ch.  Ap.  3S9 ; 
26  Beav.  644;  Butler  v.  Duncan,  47  Mich.  94, 
10  N.  W.  123,  41  Am.  Rep.  711. 

CATCH  POLE.  A  name  formerly  given  to 
a  sheriff's  deputy,  or  to  a  constable,  or  other 
officer  whose  duty  it  is  to  arrest  persons. 
He  was  a  sort  of  sergeant.  The  word  I 
now  in  use  as  an  official  designation;  Min- 
shew. 

CATER  COUSIN.  A  very  distant  rela- 
tion.    Bla.  Law  Tracts  6. 

CATHEDRAL.  A  tract  set  apart  for  the 
service  of  the  church. 

After  the  establishment  of  Christianity,  the  em- 
perors and  other  great  men  gav<  tracts  of 
land  whereon  the  first  places  of  public  worship  were 
erected,— which  were  called  cathedral,  catl 
sees,  or  seats,  from  the  clergy's  residence  thereon. 
And  when  churches  were  afterwards  built  in  the 
country,  and  the  clergy  were  sent  out  from  the 
cathedrals  to  officiate  therein,  the  cathedral  or  head, 
uiained  to  the  bishop,  with  some  of  the  chief 
of  the  clergy  as  his  assistants. 

CATHOLIC  EMANCIPATION  ACT.  The 
act  10  Geo.  IV.  c.  7.  This  act  relieves  from 
disabilities  and  restores  all  civil  rights  to 
Roman  Catholics,  except  that  of  holding  ec- 
clesiastical offices  and  certain  high  state  of- 


279;  2  Sharsw.  Bla.  Com.  260;  Broom,  Max. 
46.  A  casus  omissus  may  occur  in  a  contract 
as  well  as  in  a  statute;  2  Bla.  Com.  260. 

CAT.  A  whip  sometimes  used  for  whip- 
ping criminals.  It  consists  of  nine  lashes 
tied  to  a  handle,  and  is  frequently  called 
cat-o-nine-tails.  It  is  used  where  the  whip- 
ping-post is  retained  as  a  mode  of  punish- 
ment and  was  formerly  resorted  to  in  the 
navy. 

CATALLA  0TI0SA  (Lat).  Dead  goods, 
and  animals  other  than  beasts  of  the  plow, 
averia  cantor,  and  sheep.  3  Bla.  Com.  9; 
Bract.  217  0. 

CATALLUM.     A  chattel. 

The  word  is  used  more  frequently  In  the  plural, 
catalla,  but  has  then  the  same  signification,  de- 
noting all  goods,  movable  or  i  except 
such  as  are  in  the  nature  of  fees  and  freeholds. 
Cowell;    Du  Cange. 

CATANEUS.  A  tenant  in  capitc.  A  ten- 
ant holding  immediately  of  the  crown.  Spel- 
man,  Gloss. 

CATCHING  BARGAIN.  An  agreement 
made  with  an  heir  expectant  for  the  pur- 
chase of  his  expectancy  at  an  inadequate 
price. 

In  such  cases  the  heir  is,  in  general,  en- 
titled to  relief  in  equity,  and  may  have  the 
contract  rescinded  upon  terms  of  redemp- 
tion;   1  Yern.  107,  320,  n.;   2  Cox  80;   2  Ch. 


CATHOLIC  EMANCIPATION  ACT       432 


CAUSA 


fices.  The  previous  legislation  which  by 
gradual  stages  led  up  to  the  final  removal  of 
these  disabilities  is  to  be  found  in  the  acts 
of  18  Geo.  III.  c.  60;  31  Geo.  III.  c.  32; 
and  43  Geo.  III.  c.  7.     2  Steph.  Com.  721. 

CATTLE.  A  collective  name  for  domestic 
quadrupeds  generally,  including  not  only  the 
bovine  tribe,  but  horses,  asses,  mules,  sheep, 
goats,  and  swine.  Web.  Diet;  Decatur  Bank 
v.  Bank,  21  Wall.  (U.  S.)  299,  22  L.  Ed.  5G0. 

A  railroad  engineer  cannot  take  chances 
of  an  animal's  getting  off  the  track,  where 
he  has  an  opportunity  of  avoiding  all  possi- 
bility of  an  injury;  Elmsley  v.  R.  Co.  (Miss.) 
10  South.  41.  It  is  immaterial  whether  the 
stock  was  legally  at  large  or  not,  where  the 
road  is  not  fenced;  Terre  Haute  &  I.  R.  Co. 
v.  Schaefer,  5  Ind.  App.  86,  31  N.  E.  557; 
but  where  not  legally  at  large  and  the  com- 
pany is  under  no  legal  obligation  to  fence 
its  road,  it  will  only  be  responsible  for  gross, 
'wanton,  or  wilful  negligence  in  causing  in- 
jury to  stock;  Windsor  v.  R.  Co.,  45  Mo. 
App.  123.  See  Ohio  &  M.  Ry.  Co.  v.  Gross, 
41  111.  App.  561.  The  law  does  not  presume 
negligence  from  the  mere  fact  that  stock 
was  killed  or  injured  by  a  railroad  company; 
Eddy  v.  Lafayette,  49  Fed.  79S,  1  C.  C.  A. 
432 ;   See  Animals  ;  Running  at  Large. 

CATTLE  GATE.  A  customary  proportion- 
ate right  of  pasture  enjoyed  in  common  with 
others.  The  right  is  measured  not  by  the 
number  of  cattle  to  be  pastured,  but  by  ref- 
erence to  the  rights  of  others  and  the  whole 
amount  of  pasture.  34  E.  L.  &  Eq.  511;  1 
Term  137. 

CATTLE    GUARDS.     See  Fence. 

CAUCUS.     See  Election. 

CAUSA    (Lat).     A  cause;  a  reason. 

A  condition;  a  consideration.  Used  of 
contracts,  and  found  in  this  sense  in  the 
Scotch  law  also.    Bell,  Diet. 

It  cannot  be  considered  that  considera- 
tion was  borrowed  from  equity  as  a  modifi- 
cation of  the  Roman  "causa."  Prof.  J.  B. 
Ames  in  3  Sel.  Essays  in  Anglo-Amer.  Leg. 
Hist.  279.  Practically  it  covers  somewhat 
wider  ground  than  the  modern  "Considera- 
tion Executed,"  but  it  has  no  generic  notion 
corresponding  to  it,  at  least  none  coexten- 
sive with  the  notion  of  contract ;  Poll.  Contr. 
74. 

A  suit;  an  action  pending.  Used  in  this 
sense  in  the  old  English  law. 

Property.  Used  thus  in  the  civil  law  in 
the  sense  of  res  (a  thing).  Non  porcellum, 
non  agnellum  nee  alia  causa  (not  a  hog,  not 
a  lamb,  nor  other  thing).    Du  Cange. 

By  reason  of. 

Causa  proxima.     The  immediate  cause. 

Causa  remota.  A  cause  operating  indirect- 
ly by  the  intervention  of  other  causes. 

Causa  causans.  The  inducing  or  imme- 
diate cause. 

In  its  general  sense,  causa  denotes  anything  op- 
erating to  produce  an  effect.    Thus,  it  is  said,  causa 


causantis  causa  est  causati  (the  cause  of  the  thing 
causing  is  the  cause  of  the  thing  caused).  Marble 
v.  City  of  Worcester,  4  Gray  (Mass.)  398  ;  4  Campb. 
2S4.  In  law,  however,  only  the  direct  cause  is  con- 
sidered. See  9  Co.  50 ;  12  Mod.  639 ;  Causa  Prox- 
ima Non  Remota  Spectatur;    Contracts. 

CAUSA       JACTITATIONIS       MARITAGII 

(Lat).  A  form  of  action  which  anciently 
lay  against  a  party  who  boasted  or  gave 
out  that  he  or  she  was  married  to  the  plain- 
tiff, whereby  a  common  reputation  of  their 
marriage  might  ensue.  3  Bla.  Com.  93.  See 
Jactitation  of  Marriage. 

CAUSA         MATRIMONII         PR/ELOCUTI 

(Lat).  A  writ  lying  where  a  woman  has 
given  lands  to  a  man  in  fee-simple  with  the 
intention  that  he  shall  marry  her,  and  he 
refuses  so  to  do  within  a  reasonable  time, 
upon  suitable  request.  Cowell.  Now  obso- 
lete.    3  Bla.  Com.  1S3,  n. 

CAUSA  MORTIS  DONATIO.  See  Dona- 
tio Mortis  Causa. 

CAUSA  PROXIMA  NON  REMOTA  SPEC- 
TATUR (Lat).  The  direct  and  not  the  re- 
mote cause  is  considered. 

In  many  cases  important  questions  arise 
as  to  which,  in  the  chain  of  acts  tending  to 
the  production  of  a  given  state  of  things, 
is  to  be  considered  the  responsible  cause. 
It  is  not  merely  distance  of  place  or  of  caus- 
ation that  renders  a  cause  remote.  The 
cause  nearest  in  the  order  of  causation, 
without  any  efficient  concurring  cause  to 
produce  the  result,  may  be  considered  the 
direct  cause.  In  the  course  of  decisions  of 
cases  in  which  it  is  necessary  to  determine 
which  of  several  causes  is  so  far  respon- 
sible for  the  happening  of  the  act  or  injury 
complained  of,  what  is  known  as  the  doc- 
trine of  proximate  cause  is  constantly  re- 
sorted to  in  order  to  ascertain  whether  the 
act,  omission,  or  negligence  of  the  person 
whom  it  is  sought  to  hold  liable  was  in  law 
and  in  fact  responsible  for  the  result  which 
is  the  foundation  of  the  action. 

The  rule  was  formulated  by  Bacon,  and 
his  comment  on  it  is  often  cited :  "It  were 
infinite  for  the  law  to  judge  the  cause  of 
causes,  and  their  impulsions  one  of  another : 
therefore  it  contenteth  itself  with  the  im- 
mediate caisse ;  and  judgeth  of  acts  by  that, 
without  looking  to  any  further  degree;" 
Max.  Reg.  1.  Its  subsequent  development 
has  resulted  rather  in  its  application  to  new 
conditions  than  in  deviation  from  the  prin- 
ciple as  originally  stated.  Proximate  cause, 
it  may  be  generally  stated,  is  such  adequate 
and  efficient  cause  as,  in  the  natural  order 
of  events,  and  under  the  particular  circum- 
stances surrounding  the  case,  would  neces- 
sarily produce  the  event;  and  this  having 
been  discovered,  is  to  be  deemed  the  true 
cause,  unless  some  new  cause  not  incidental 
to,  but  independent  of,  the  first,  shall  be 
found  to  intervene  between  it  and  the  first 
Sh.  &  Redf.   Neg.   §  10;   Marble  v.   City   of 


CAUSA  PROXLMA 


433 


IMA 


Worcester,  4  Gray  (Mass.)  412:  Story,  J.,  In 
Peters  v.  Ins.  Co.,  14  Pet.  (U.  S.)  99,  10  L.  Ed. 
371;  Alexander  v.  Town  of  New  Castle,  115 
Ind.  51,  17  N.  E.  200;  State  v.  R.  R,  52  N. 
H.  528;  Webb's  Poll.  Torts  29.  It  is  a  cause 
wbicb  in  natural  sequence,  undisturbed  by 
any  independent  cause,  produces  tbe  result 
complained  of;  Behling  v.  Pipe  Lines,  160 
Pa.  359,  28  Atl.  777,  40  Am.  St.  Rep.  724; 
Milwaukee  &  St.  P.  R.  Co.  v.  Kellogg,  94  U. 
S.  469,  24  L.  Ed.  256;  Putnam  v.  R.  Co.,  55 
N.  Y.  108,  14  Am.  Rep.  190 ;  Taylor  v.  Bald- 
win, 78  Cal.  517,  21  Pac.  124 ;  and  the  result 
must  be  the  natural  and  probable  conse- 
quence such  as  ought  to  have  been  fore- 
seen as  likely  to  flow  from  the  act  com- 
plained of:  i:\ving  v.  R  Co.,  147  Pa.  4  1.  23 
Atl.  340,  14  L.  R  A.  666,  30  Am.  St.  Rep. 
709;  McDonald  v.  Snelling,  14  Allen  (Mass.j 
290,  92  Am.  Dec.  768 ;  Pilmer  v.  Traction  Co., 
14  Ida.  327,  94  Pac.  432,  15  L.  R.  A.  (N.  S.) 
254,  125  Am.  St.  Rep.  161;  Kreigh  v.  West- 
inghouse,  Church.  Kerr  &  CcC  152  Fed.  120, 
81  C.  C.  A.  338,  11  L.  R.  A.  (N.  S.)  6S4. 

Two  elements  go  to  make  up  proximate 
cause :  1.  The  act  must  be  the  efficient  cause 
of  the  injury ;  2.  The  result  must  be  one 
which  might  reasonably  have  been  antici- 
pated when  the  ne.udi^ent  act  was  commit- 
ted; Goodlander  Mill  Co.  v.  Oil  Co.,  63  Fed. 
400,  11  C.  C.  A.  253,  27  L.  R.  A.  583;  Cole  v. 
Saw  &  Loan  Soc,  124  Fed.  113,  59  C  C.  A. 
593,  63  L.  R.  A.  416;  Kreigh  v.  Church,  152 
Fe'd.  120;  81  C.  C.  A.  338,  11  L.  R.  A.  (N.  S.) 
684;  Teis  v.  Min.  Co.,  158  Fed.  260,  85  C.  C. 
A.  478,  15  L.  R.  A.  (N.  S.)  S93;  Hoag  v.  R. 
Co.,  85  Pa.  293,  27  Am.  Rep.  653;  Ilartman 
v.  Clarke,  104  App.  Div.  62,  93  N.  Y.  Supp. 
314;  Seith  v.  Electric  Co.,  241  Til.  252,  89 
N.  E.  425,  24  L.  R.  A.  (N.  S.)  978,  132  Am. 
St  Rep.   204. 

From  a  legal  point  of  view  it  is  said  to  be 
of  two  kinds:  1.  As  in  insurance  cases;  2. 
Responsibility  for  a  wrongful  act,  whether 
In  tort  or  contract;  15  Ilarv.  L.  Rev.  566, 
where  it  is  said:  "The  fundamental  differ- 
ence between  these  classes  is  that  in  the 
former  investigation  ceases  when  the  near- 
est cause  adequate  to  produce  the  result  in 
question  has  been  discovered,  while  in  the 
latter  the  object  is  to  connect  the  circum- 
stances which  are  the  subject  of  the  action 
with  a  responsible  human  will."  id.;  see 
Gilson  v.  Canal  Co.,  36  Am.  St.  Rep.  807, 
note. 

Where  a  train  was  forty-five  minutes  late 
when  a  gust  of  wind  threw  it  from  the  track 
and  injured  a  passenger,  it  was  held  that 
though  the  train  would  have  escaped  the 
gust  of  wind  had  it  been  on  time,  yet  the 
accident  was  neither  the  natural  nor  prob- 
able consequence  of  the  delay:  McClary  v.  R. 
Co.,  3  Neb.  44,  19  Am.  Rep.  031.  When  a 
horse  hitched  to  a  defective  hitchin^-post 
was  frightened  by  the  running  away  of  an- 
other horse,  and  broke  the  post  and  ran  over 
a  person  in  the  street,  the  latter  could  not 
Bouv.— 28 


recover  against  the  owner  of  the  post  for 
the  defect  in  the  post  as  the  cause  of  the 
injury;  City  of  Rockford  v.  Tripp,  83  111. 
247,   25   Am.    Rep.   :; 

tire  to  grass  on  tbe  property  u  another  may 
be  found  to  be  the  proximate  cause  of  the 
death    of  one  burned   whilst   attempting   to 

wish  it;  Illinois  Cent  R  Co.  v. 
229  111.  390,  82  X.  B.  362,  15  L.  R.  A.  | 
819,  11  Ann.  Cas.  36S.  Exposure  to  cold 
was  held  the  proximate  cause  of  injury  to 
the  health  of  one  who,  although  ill  at  the 
time,  would  not  have  suffered  seriously  but 
for  such  exposure;  Louisville  &  N.  R.  Co.  v. 
Dausherty,  108  S.  W.  336,  32  Ky.  L.  Rep. 
1392,  15  L.  R.  A.  (N.  S.)  740.  The  escape  of 
oil  from  a  tank  near  a  river  bank  wa - 
the  proximate  cause  of  injury  caused  by  the 
oil  to  boats  lower  down;  Brennan  Construc- 
tion Co.  v.  Cumberland.  29  App.  D.  C.  554, 
15  L.  R.  A.  (X.  S.)  535,  10  Ann.  Cas.  865. 
Where  a  railroad  company  obstructed  a  rail- 
road crossing  and  delayed  a  physician,  held 
that  his  patient  had  a  right  of  action  against 
it  if  she  suffered  by  the  delay;  Terry  v.  R. 
Co.  (Miss.)  60  South.  729.  Permitting  a  road 
to  remain  out  of  repair  so  that  fire  appara- 
tus is  hindered  in  responding  to  an  alarm 
is  not  the  proximate  cause  of  the  destruc- 
tion of  the  property  by  fire;  Hazel  v.  Owens- 
boro,  99  S.  W.  315,  30  Ky.  L.  Rep.  627,  9  I.. 
R.  A.  (N.  S.)  235. 

The  question  of  proximate  cause  is  said 
to  be  determined,  not  by  the  existence  or 
non-existence  of  intervening  event-,  hut  by 
their  character  and  the  natural  i 
between  the  original  act  or  omission  and 
the  injurious  consequences.  When  the  in- 
tervening cause  is  set  in  operation  by  the 
original  negligence,  such  negligence  is  still 
the  proximate  cause ;  Seith  v.  Electric  Co.. 
241  111.  252,  89  N.  E.  425.  24  L.  R.  A.  (N. 
S.)  97S,  132  Am.  St.  Rep.  204.  If  the  party 
guilty  of  the  first  act  of  negligence  mighl 
have  anticipated  the  intervening  cause,  the 
connection  is  not  broken:  Seith  v.  Electric 
Co.,  241  111.  252,  S9  N.  E.  425.  24  L.  R.  A. 
iX.  s.i  978,  L32  Am.  St  Rep.  204;  Missouri 
Pac.  R.  Co.  v.  Columbia,  65  Kan.  390,  69 
Pac.  338,  58  i,.  R.  a.  399;  Smith  v.  T. 
113  Mo.  App.  429,  87  S.  W.  71:  Citizens 
Telephone  Co.  of  Texas  v.  Thomas.  45  Tex. 
Civ.  App.  20,  99  S.  W.  879.  Any  number  of 
causes  and  effects  may  intervene,  and  if 
they  are  such  as  might  with  reasonable  dil- 
igence have  been  foreseen,  the  last  result  is 
to  be  considered  as  the  proximate  result. 
But  whenever  a  new  cause  intervenes,  which 
is  not  a  consequence  of  the  first  wrongful 
cause,  which  is  not  under  control  of  the 
wrongdoer,  which  could  not  have  been  fore 
seen  by  the  exercise  of  reasonable  diligence, 
and  except  for  which  the  final  injurious  con- 
sequence could  not  have  happened,  then  such 
injurious  consequence  must  be  deemed  too 
remote:  Atchison,  T.  &  S.  F.  R.  Co.  v.  Stan- 
ford, 12  Kan.  354,  15  Am.  Rep.  362;    Kreigh 


CAUSA  PROXIMA 


434 


CAUSA  PROXIMA 


v.  Westinghouse,  Church,  Kerr  &  Co.,  152 
Fed.  120,  81  C.  C.  A.  338,  11  L.  R.  A.  (N.  S.) 
684.  Gas  was  negligently  permitted  to  re- 
main in  a  mine.  A  workman  was  overcome 
by  the  gas,  and,  in  removing  him  to  the  sur- 
face, his  leg  was  broken  in  the  elevator. 
The  gas-filled  mine  was  not  the  proximate 
cause  of  the  broken  leg;  Teis  v.  Smuggler 
Min.  Co.,  158  Fed.  260,  S5  C.  C.  A.  478,  15 
L.  R.  A.  (N.  S.)  Sir.. 

The  cases  in  which  the  original  wrong- 
doer is  still  liable,  though  independent  acts 
of  other  persons  may  have  intervened,  are 
classified  generally  by  Prescott  F.  Hall  in 
15  Harv.  L.  Rev.  541,  as: 

1.  Acts  directly  malicious ;  Laidlaw  v. 
Sage,  158  N.  Y.  73,  52  N.  E.  679,  44  L.  R.  A. 
216  (where  an  explosion  was  held  the  proxi- 
mate cause,  though  the  person  injured  by  it 
was  forced  by  another  into  the  position  of 
danger).  Taylor  v.  Hayes,  63  Vt.  475,  21 
Atl.  610 ;  Isham  v.  Dow's  Estate,  70  Vt.  588, 
41  Atl.  5S5,  45  L.  R.  A.  87,  67  Am.  St.  Rep. 
691.  One  who  violates  a  duty  owed  to  oth- 
ers or  commits  a  tortious  or  wrongfully  neg- 
ligent act  is  liable,  not  only  for  those  in- 
juries which  are  the  direct  and  immediate 
consequences  of  his  act,  but  for  such  con- 
sequential injuries  as,  according  to  common 
experience,  are  likely  to,  and  in  fact  do, 
result  from  his  act;  Smethurst  v.  Barton 
Square  Church,  148  Mass.  261,  19  N.  E.  3S7, 
2  L.  ]K.  A.  695,  12  Am.  St.  Rep.  550  (snow 
from  a  roof  fell  on  a  horse  causing  it  to 
start  and  thereby  injure  a  passer-by). 

2.  Acts  such  as  wilful  misrepresentation 
and  false  warranties:  Of  this  class  of  cases 
is  Thomas  v.  Winchester,  6  N.  Y.  397,  57 
Am.  Dec.  455  (where  a  druggist  earelessly 
labelled  a  deadly  poison  as  a  harmless  med- 
icine) ;  where  a  druggist  labelled  extract  of 
belladonna  as  extract  of  dandelion ;  Thomas 
v.  Winchester,  6  N.  Y.  397,  57  Am.  Dec.  455 ; 
where  naphtha  was  sold  for  oil ;  Wellington 

.  v.  Oil  Co.,  104  Mass.  64 ;  or  poisonous  food ; 
Bishop  v.  Weber,  139  Mass.  411,  1  N.  E. 
154,  52  Am.  Rep.  715 ;  or  a  proprietary  med- 
icine containing  ingredients  harmful  to  one 
using  it  according  to  its  directions ;  Blood 
Balm  Co.  v.  Cooper,  83  Ga.  457,  10  S.  E. 
118,  5  L.  R.  A.  612,  20  Am.  St.  Rep.  324 ;  or 
a  beverage  represented  to  be  harmless,  but 
containing  bits  of  broken  glass;  Watson  v. 
Brewing  Co.,  124  Ga.  121,  52  S.  E.  152,  1 
L.  R.  A.  (N.  S.)  1178,  110  Am.  St  Rep.  157 ; 
or  where  a  manufacturer  sold  a  defective 
article  knowing  it  to  be  defective,  though 
there  was  no  privity  of  contract  between  the 
person  injured  and  the  manufacturer ;  Schu- 
bert v.  Clark  Co.,  49  Minn.  331,  51  N.  W. 
1103,  15  L.  R.  A.  818,  32  Am.  St.  Rep.  559 ; 
Woodward  v.  Miller,  119  Ga.  618,  46  S.  E. 
847,  64  L.  R.  A.  932,  100  Am.  St.  Rep.  1S8; 
Holmvik  v.  Self-feeder  Co.,  98  Minn.  424,  108 
N.  W.  S10. 
3.  Acts  conclusively  presumed  to  be  mali- 


cious, such  as  violations  of  statutes.  Where 
liability  for  personal  injury  is  imposed  by 
statute  on  counties,  etc.,  or  persons  for  de- 
fective highways,  bridges,  etc.,  the  innocent 
intervening  act  of  a  third  person  will  not 
discharge  the  first  wrong-doer  from  his  re- 
sponsibility ;  Hayes  v.  Hyde  Park,  153  Mass. 
514,  27  N.  E.  522,  12  L.  R.  A.  249. 

Generally  it  is  held  that  a  company  main- 
taining overhead  wires  is  liable  for  injuries 
resulting  from  their  fall  notwithstanding  an 
intervening  act  of  a  third  person  who  at- 
tempts to  remove  them.  This  is  usually  on 
the  ground  that  the  company  should  have 
foreseen  that  some  person  would  interfere 
with  such  wires;  Citizens'  Telephone  Co.  of 
Texas  v.  Thomas,  45  Tex.  Civ.  App.  20,  99 
S.  W.  879 ;  Neal  v.  R.  Co.,  3  Pennewill  (Del.) 
467,  53  Atl.  338;  Smith  v.  Telephone  Co., 
113  Mo.  App.  429,  87  S.  W.  71;  Dannen- 
hower  v.  Telegraph  Co.,  218  Pa.  216,  67  Atl. 
207;  Kansas  City  v.  Gilbert,  65  Kan.  469, 
70  Pac.  350 ;  but  where  a  wire  fell  to  the 
ground  and  was  knocked  by  a  policeman 
with  his  club  towards  the  sidewalk,  the  in- 
tervening act  of  the  policeman  was  held  the 
proximate  cause  of  injury  to  one  who 
caught  the  wire;  Seith  v.  Electric  Co.,  241 
111.  252,  89  N.  E.  425,  24  L.  R.  A.  (N.  S.)  978, 
132  Am.  St.  Rep.  204.  And  the  negligence  of 
a  telephone  company  in  maintaining  a  pole 
in  a  dangerous  position  until  it  fell  across 
a  highway  was  held  not  the  proximate  cause 
of  an  accident,  when  it  was  set  back  in  the 
hole  by  passers-by  and  insecurely  propped, 
afterwards  falling  and  killing  the  daughter 
of  the  plaintiff;  Harton  v.  Telephone  Co., 
146  N.  C.  429,  59  S.  E.  1022,  14  L.  R.  A. 
(N.  S.)  956,  14  Ann.  Cas.  390. 

Where  a  manufacturer  undertook  to  sup- 
ply a  boiler  which  would  stand  a  working 
pressure  of  one  hundred  pounds  and  at  a 
less  pressure  the  boiler  exploded  in  conse- 
quence of  the  defective  construction  of  a 
hinge,  thereby  injuring  the  buyer's  employ- 
ees, and  rendering  such  buyer  liable  in  dam- 
ages to  them,  it  was  held  that  though  the 
buyer  might  have  discovered  the  defect  by 
inspection,  yet  he  was  entitled  to  recover 
from  the  manufacturer,  as,  even  if  his  con- 
duct be  called  want  of  ordinary  care,  it  was 
induced  by  the  warranty  or  representations 
of  the  manufacturer;  Boston  Woven  Hose 
&  Rubber  Co.  v.  Kendall,  178  Mass.  232,  59 
S.  E.  657,  51  L.  R.  A.  781,  86  Am.  St.  !Rep. 
478.  In  [1S95]  1  Q.  B.  857,  and  [1895]  2  Q. 
B.  650,  it  is  intimated  that  the  injured 
workman  could  hav^e  recovered  against  the 
manufacturer  in  the  first  place.  In  the  Mas- 
sachusetts case  it  is  said  that  there  are 
difficulties  in  holding  one  liable  in  damages 
when  the  tort  of  another  has  intervened  be- 
tween his  act  and  the  consequences  com- 
plained of,  but  that  in  some  cases  there  may 
be  a  recovery,  citiug  Nashua  Iron  &  Steel 
Co.  v.  R.  Co.,  62  N.  H.  159. 


CAUSA  PHOXIMA 


435 


CAUSA  PROXIMA 


The  manufacturer  or  vendor  of  a  tool  ma- 
chine or  appliance  which  is  not  in  its  nature 
intrinsically  dangerous  is  not  ordinarily 
liable  for  defects  therein  to  one  not  in  priv- 
ity with  him ;  Heizer  v.  Mfg.  Co.,  110  Mo. 
605,  19  S.  W.  630,  15  L.  B.  A.  821,  33  Am. 
St  Rep.  482;  Heindirk  v.  Elevator  Co.,  122 
Ky.  G75,  92  S.  W.  008,  5  L.  R.  A.  (N.  S.) 
1103 ;  but  a  well  recognized  exception  to 
this  rule  is  where  the  thing  is  eminently 
i  rous  to  hum:m  life;  Thomas  v.  Win- 
chester, 6  N.  Y.  397,  57  Am.  Dec.  455;  as 
where  circulars  sent  out  by  a  bottler  of 
aerated  water  indicated  his  knowledge  that 
the  bottles  were  liable  to  explode,  and  the 
evidence  tended  to  show  that  the  tests  ap- 
plied by  him  to  the  bottles  sent  out  were  not 
adequate  to  justify  the  conclusion  that  they 
would  not  burst  under  customary  usage, 
with  the  knowledge  of  which  defendants 
might  reasonably  be  chargeable;  Torgesen 
v.  Schultz,  192  N.  Y.  156,  84  N.  E.  956,  18 
L.  R.  A.  (N.  S.)  726,  127  Am.  St.  Rep.  891. 

A  contractor,  after  the  completion  and  de- 
livery of  possession  of  a  building  and  its 
acceptance  by  the  owner,  is  not  liable  to  a 
stranger  to  the  contract  for  injuries  result- 
ing from  defects  in  the  construction  of  the 
building;  Curtin  v.  Somerset,  140  Pa.  70, 
21  Atl.  244,  12  L.  R.  A  322,  23  Am.  St.  'Rep. 
220,  where  the  court  said,  quoting  from 
Whart.  Neg.  439,  "There  must  be  causal 
connection  between  the  negligence  and  the 
hurt,  and  such  causal  connection  is  inter- 
rupted by  the  interposition  between  the  neg- 
ligence and  the  hurt  of  any  independent 
human  agency;  Miner  v.  McNamara,  81 
Conn.  690,  72  Atl.  13S,  21  L.  R.  A.  (N.  S.) 
477;  Fitzmaurice  v.  Fabian,  147  Pa.  199, 
23  Atl.  444;  Fowles  v.  Briggs,  116  Mich. 
425,  74  N.  W.  1046,  40  L.  R.  A.  528,  72  Am. 
St.  Rep.  537,  where  a  shipper  of  lumber 
negligently  loaded  was  held  not  liable  for 
injury  to  a  brakeman,  after  it  had  become 
the  duty  of  the  railroad  company  to  provide 
for  the  inspection  of  the  car. 

The  manufacturer  and  seller  of  a  side 
saddle  to  a  husband  was  held  to  be  under 
no  duty  to  the  wife,  for  whose  use  he  knows 
it  to  have  been  purchased,  for  its  defective 
construction;  Bragdon  v.  Perkins-Campbell 
Co.,  87  Fed.  109,  30  C.  C.  A.  567,  66  L.  R. 
A.  924.  The  leading  case  is  Winterbottom 
v.  Wright,  10  M.  &  W.  109,  where  the  de- 
fendant had  contracted  with  the  postmaster- 
general  to  provide  a  mail  coach  and  keep 
it  in  repair.  He  was  held  not  liable  to  an 
employee  of  one  who  contracted  with  the 
postmaster-general  to  provide  horses  and 
coachmen  for  the  purpose  of  carrying  the 
mail. 

Where  the  defendant  sold  gunpowder  to  a 
child,  and  the  parents  took  charge  of  it  and 
let  the  child  have  some,  the  sale  was  held 
too  remote  as  a  cause  of  injury  to  the  child 
by  an  explosion ;   Carter  v.  Towne,  103  Mass. 


507 ;    on   the  other  hand  an  injury  from  a 
railway    accident,    having    been    the    direct 
cause  of  a  diseased  condition  .  . 
in  paralysis,   was  held  to  be  the  proximate 
Cause    Of   the   latter;     Bishop    '..    . 
Minn.  26,  50   N.   W.  :»JT  :    I 
son  of  injury  in  a  collision  a 
came  d    in    mind    and    body    and 

eight  months  after  committed  sue  ide,  in  a 
suit  for  da  ;    the  railroad  com- 

pany  it  was  held  that  his  own  act  \v.. 
proximate   cause  of   his   death;     Scheffer  v. 
R.  Co.,   105    I  .   S.   249,  26   L,    Ed.   1070 
woman's    illness,    caused    by    fright    from 
shooting  a  dog  in  her  presence,  is  not  a  re- 
sult reasonably  to  be  anticipated;   Renner  v. 
Canfield,  36  Minn.  90,  30  N.  W.  435,  1  Am. 
St.   Rep.  G54. 

If  two  causes  operate  at  the  same  time 
to  produce  a  result  which  might  be  produced 
by  either,  they  are  concurrent  causes,  and 
in  such  case  each  is  a  proximate  cause,  but 
if  the  two  are  successive  and  unrelated  in 
their  operation,  one  of  them  must  be  proxi- 
mate and  the  other  remote ;  Herr  v.  City 
of  Lebanon,  119  Pa.  222,  24  Atl.  207,  16  L. 
R.  A.  106,  34  Am.  St.  Rep.  G03.  When  there 
is  no  order  of  succession  in  time,  when 
there  are  two  concurrent  causes  of  a  loss, 
the  predominating  efficient  one  must  be  re- 
garded as  the  proximate  when  the  damage 
done  by  each  cannot  be  distinguished;  How- 
ard Fire  Ins.  Co.  v.  Transp.  Co.,  12  Wall. 
(U.  S.)  194,  20  L.  Ed.  378  (a  marine  insur- 
ance case).  See  the  reporter's  note  of  Mr. 
J.  C.  Carter's  argument  for  appellant.  As 
an  illustration  of  concurrent  causes,  when' 
lumber  was  negligently  piled,  and  rein 
a  long  time  in  that  condition,  and  was  caus- 
ed to  fall  by  the  negligence  of  a  stranger, 
the  negligence  in  piling  concurring  with  th<> 
negligence  of  the  stranger,  was  the  direct 
and  proximate  cause;  Pastene  v.  Adams,  49 
Cal.  87. 

The  question  as  to  what  is  the  proxi- 
mate cause  of  an  injury  is  ordinarily  not 
one  of  science  or  of  legal  knowledge,  but 
of  fact  for  the  jury  to  determine  in  view 
of  the  accompanying  circumstances,  all  of 
which  must  be  submitted  to  the  jury,  who 
must  determine  whether  the  original  cause 
is  by  continuous  operation  linked  to  each 
successive  fact;  Lehigh  Valley  R.  Co.  v.  Mr- 
Keen,  90  Pa.  122,  35  Am.  Rep.  644:  Milwau- 
kee, etc.,  R.  Co.  v.  Kellogg,  94  U.  S.  469,  24 
L.  Ed.  256;  a  finding  that  the  burnh 
the  plaintiff's  mill  and  lumber  was  the  un- 
avoidable consequence  of  the  burning  of  the 
defendant's  elevator,  is  in  effect  a  finding 
that  there  was  no  intervening  and  inde- 
pendent cause  between  the  negligent  con- 
duct of  defendant  and  injury  to  plaintiff; 
id.  The  doctrine  under  consideration  finds 
its  most  frequent  application  in  fire  and 
morim  insurance;  L.  R.  4  Q.  B.  414;  L. 
R.  4  C.  P.  206 ;    L.  R.  5  Ex.  204 ;    Nelson  v. 


CAUSA  PROXIMA 


436 


CAUSE  OF  ACTION 


Ins.  Co.,  8  Cush.  (Mass.)  477,  54  Am.  Dec. 
770;  Paine  v.  Smith,  2  Duer  (N.  Y.)  301; 
Mathews  v.  Ins.  Co.,  11  N.  Y.  9;  Montgom- 
ery v.  Ins.  Co.,  16  B.  Monr.  (Ky.)  427 ;  West- 
ern Ins.  Co.  v.  Cropper,  32  Pa.  351,  75  Am. 
Dec.  561;  General  Mut.  Ins.  Co.  v.  Sher- 
wood, 14  How.  (U.  S.)  351,  14  L,  Ed.  452;  in 
cases  of  tort  founded  on  negligence;  5  C. 
&  P.  190 ;  L.  !R.  4  C.  P.  279 ;  L.  R.  8  Q.  B. 
274;  3  M.  &  R.  105;  Cuff  v.  R.  R.  Cov  35 
X.  J.  L.  17,  10  Am.  Rep.  205 ;  Fairbanks  v. 
Kerr,  70  Pa.  86,  10  Am.  Rep.  664;  Metallic 
Compression  Casting  Co.  v.  R.  Co.,  109  Mass. 
277,  12  Am.  Rep.  689;  in  measure  of  dam- 
ages and  in  high  wan  cases;  15  Harv.  L. 
Rev.  541,  which  see  for  a  thorough  review  of 
the  history  of  this  doctrine;  Webb's  Poll. 
Torts  29.  566 ;    Howe,  Civ.  L.  201. 

See  Negligence. 

CAUSA  REI  (Lat.).  In  Civil  Law.  Things 
accessory  or  appurtenant.  All  those  things 
which  a  man  would  have  had  if  the  thing 
had  not  been  withheld.  Du  Cange;  1  Mac- 
keldey,  Civ.  Law  55. 

CAUSA  RE  (Lat.  to  cause).  To  be  engag- 
ed in  a  suit ;  to  litigate  ;  to  conduct  a  cause. 
Used  in  the  old  English  and  in  the  civil  law. 

CAUSATION.     See  Causa  Proxima. 

CAUSAT0R  (Lat.).  A  litigant;  one  who 
takes  the  part  of  the  plaintiff  or  defendant 
in  a  suit. 

CAUSE   (Lat.  causa).     In  Civil  Law.    The 

consideration  or  motive  for  making  a  con- 
tract. Dig.  2.  14.  7;  Toullier,  liv.  3,  tit.  3, 
c.  2,  §  4 ;    1  Abb.  28. 

In  Pleading.  Reason;  motive. 
In  a  replication  de  injuria,  for  example,  the  plain- 
tiff alleges  that  the  defendant  of  his  own  wrong  and 
without  the  cause  by  him,  etc.,  where  the  word 
cause  comprehends  all  the  facts  alleged  as  an  excuse 
or  reason  for  doing  the  act.  8  Co.  67 ;  11  East  451 ; 
1   Chit.    PI.  585. 

In  Practice.  A  suit  or  action.  Any  ques- 
tion, civil  or  criminal,  contested  before  a 
court  of  justice.  Wood,  Civ.  Law  301.  It 
was  held  to  relate  to  civil  actions  only,  and 
not  to  embrace  quo  warranto;  5  E.  &  B.  1. 
See  Logan  v.  Small,  43  Mo.  254 ;  3  Q.  B.  901. 
CAUSE  OF  ACTION.  In  Practice.  Mat- 
ter for  which  an  action  may  be  brought. 

A  cause  of  action  is  said  to  accrue  to  any  person 
when  that  person  first  comes  to  a  right  to  bring  an 
action.  There  is,  however,  an  obvious  distinction 
between  a  cause  of  action  and  a  right,  though  a 
cause  of  action  generally  confers  a  right.  Thus, 
statutes  of  limitation  do  not  affect  the  cause  of 
action,  but  take  away  the  right.  A  cause  of  action 
implies  that  there  is  some  person  in  existence  who 
can  bring  suit  and  also  a  person  who  can  lawfully 
be  sued;  Douglas  v.  Beasley,  40  Ala.  148;  Parker 
v.  Enslow,  102  111.  272,  40  Am.  Rep.  588.  See  Parish 
v.  Ward,  28  Barb.  (N.  Y.)  330;  4  Bing.  704;  Graham 
v.   Scripture,  26  How.  Pr.    (N.   Y.)  501. 

When  a  wrong  has  been  committed,  or  a 
breach  of  duty  has  occurred,  the  cause  of 
action  has  accrued,  although  the  claimant 
may  be  ignorant  of  it;  3  B.  &  Aid.  288,  626; 
5  B.  &  C.  259;    4  C.  &  P.  127.    A  cause  of 


action  does  not  accrue  until  the  existence  of 
such  a  state  of  things  as  will  enable  a  per- 
son having  the  proper  relations  to  the  prop- 
erty or  persons  concerned  to  bring  an  ac- 
tion ;  5  B.  &  C.  360 ;  8  D.  &  tft.  346 ;  4  Biugh. 
686. 

"A  cause  of  action  consists  of  those  facts' 
as  to  two  or  more  persons  entitling  at  leasf" 
some  one  of  them  to  a  judicial  remedy  of  " 
some  sort  against  the  other,  or  others,  for  - 
the  redress  or  prevention  of  a  wrong.  It 
is  essential  to .  the  existence  of  such  facts 
that  there  should  be  a  right  to  be  violated 
and  a  violation  thereof.  Since  those  two 
elements  constitute  a  cause  of  action,  and 
to  satisfy  the  statute  [Code  pleading  statute 
as  to  joinder  of  action]  they  must  arise 
out  of  one  or  more  circumstances  called  a 
transaction,  the  latter  is  to  be  viewed  as 
something  distinct  from  the  cause  of  action 
itself,  else  the  latter  could  not  arise  out 
of  the  former."  Emerson  v.  Nash,  124  Wis. 
369,  102  N.  W.  921,  70  L.  R.  A.  326,  109  Am. 
St.  Rep.  944. 

Every    judicial   action    has    in   it   certain 
necessary  elements — a  primary  right  belong- 
ing   to    the   plaintiff    and    a    corresponding 
primary  right  devolving  upon  the  defendant ; 
the   wrong   done   by    the    defendant,    which 
consists  of  a  breach  of  such  primary  right 
and    duty;    a    remedial    right    in    plaintiff 
and   a   remedial   duty  upon   the   defendant, 
and,  finally,  the  remedy  or  relief  itself.     Of 
these  the  primary  right  and  duty  and  the 
delict  or  wrong  constitute  the  cause  of  ac- 
tion;   Wildman    v.  Wlldman,   70   Conn.   700, 
41  Atl.  1.     Stated  in  brief,  a  cause  of  action 
may  be  said  to  consist  of  a  right  belonging 
to  the  plaintiff  and  some   wrongful   act  or 
omission  done  by  defendant  by  which  that 
right  has  been  violated.     Pom.  Rem.  §  453. 
It  comprises  every  fact  necessary  to  the 
right  to  the  relief  prayed  for;  McAndrews  v. 
R.   Co.,  162  Fed.   856,  89  C.   C.  A.  546.     In 
United  States  v.  Land  Co.,  192  U.  S.  355,  24 
Sup.  Ct.  266,  48  L.  Ed.  476,  it  was  said  by 
Holmes,    J. :     "The  whole  tendency   of   our 
decisions  is  to  require  a  plaintiff  to  try  his 
whole  cause  of  action  and  his  whole  case 
at   one  time;   he  cannot   even  split  up   his 
claim  (1  Salk.  11;  Trask  v.  R.  Co.,  2  Allen 
(Mass.)  331;  Freem.  Judge  [4th   Ed.]   §  238, 
241)   and,   a   fortiori,   he   cannot  divide   the 
grounds  of  recovery;"  and  this  language  is 
quoted  in   Northern   Pac.   R.  Co.  v.   Slaght, 
205  U.  S.  132,  27  Sup.  Ct.  446,  51  L.  Ed.  742. 
Where   a   party   brings    an   action    for    a 
part  only  of  the  entire  indivisible  demand 
and    recovers    judgment,    he    cannot    subse- 
quently  sue   for  another  part  of   the  same 
demand;  Baird  v.  U.  S.,  96  U.  S.  432,  24  L. 
Ed.   703. 

This  rule  applies  to  the  foreclosure  of  a 
mortgage  on  several  tracts  of  land;  if  the 
mortgagee  forecloses  as  to  a  portion  of  the 
land,  he  waives  his  lien  as  to  the  rest; 
Mascarel  v.  Raffour,  51  Cal.  242.     So  of  a 


CAUSE  OF  ACTION 


437 


CAUTIONARY  JCLGMENT 


vendor  having  a  lien  for  the  purchase  mon- 
ey on  lands;  if  be  enforces  the  lien  as  to 
a  portion  of  the  land,  he  may  not  bring  a 
Second  suit;  Day  v.  Preskctt;  -40  Ala.  Q24. 
And  it  was  held  in  Codwise  v.  Taylor,  4 
Sneed  (Term.)  346,  that  if  he  proceeded  to 
enforce  his  lien  for  a  portion  of  the  money 
which  is  due,  he  exhausts  his  remedy  as  to 
the  rest  of  the  land  for  that  portion  of  the 
debt    afterwards    maturing. 

But  a  defendant  may  not  split  his  counter- 
claim, using  part  of  it  as  a  defense  and  then 
sue  on  the  other  part  ;  Palm's  Adm'rs  v.  How- 
ard, 102  S.  W.  267,  31  Ky.  Law  Rep.  316; 
id.;  102  S.  W.  1199,  31  Ky.  Law  Rep.  814. 
A  suit  on  a  bond  and  a  suit  on  its  coupons 
are  on  different  causes  of  action;  Presidio 
County  v.  Bond  &  Stock  Co.,  212  U.  S.  58,  29 
Sup.  Ct.  237,  63  L.  Ed.  402.  The  words 
"arising  out  of  the  same  cause  of  action" 
In  United  States  admiralty  rule  53  are  used 
In  a  more  general  sense  as  meaning  the 
same  transaction,  dispute  or  subject  matter; 
United  Transp.  &  Lighterage  Co.  v.  Transp. 
Line,  185  Fed.  3S8,  107  C.  C.  A.  442,  follow- 
ing Vianello  v.  The  Credit  Lyonnais,  15  Fed. 
637. 


CAUSIDICUS. 
See  Advocate. 


A     speaker    or    pleader. 


CAUTI0,  CAUTION.  In  Civil  Law.  Se- 
curity given  for  the  performance  of  any 
thing.  A  bond  whereby  the  debtor  acknowl- 
edges the  receipt  of  money  and  promises  to 
pay  it  at  a  future  day. 

In  French  Law.  The  person  entering  into 
an   obligation    as  a   surety. 

In  Scotch  Law.  A  pledge,  bond,  or  other 
security  for  the  performance  of  an  obliga- 
tion, or  completion  of  the  satisfaction  to  be 
obtained  by  a  judicial  process.     Bell,  Diet. 

CAUTI0  FIDEJUSS0RIA.  Security  by 
means  of  bonds  or  pledges  entered  into  by 
third  parties.     Du  Cange. 

CAUTI0  PIGN0RATITIA.  A  pledge  by  a 
deposit  of  goods. 

CAUTI0  PRO  EXPEMSIS.  Security  for 
costs  or  expenses. 

This  term  is  used  among  the  civilians,  Nov.  112,  c. 
3,  and  generally  on  the  continent  of  Europe.  In 
nearly  all  the  countries  of  Europe,  a  foreign  plain- 
tiff, whether  resident  or  not,  is  required  to  give 
caution  pro  expensis :  that  is,  security  for  costs. 
In  some  countries  this  rule  is  modified,  and,  when 
such  plaintiff  has  real  estate  or  a  commercial  or 
manufacturing  establishment  within  the  state,  he 
Is  not  required  to  give  such  caution.  Fcelix,  Droit 
Intern.  Privi,  n.  106. 

CAUTI0  USUFRUCTUARIA.  Security. 
which  tenants  for  life  give,  to  preserve  the 
property  rented  free  from  waste  and  injury. 
Ersk.   Inst.  2.  9.  59. 

CAUTION  JURATORY.  Security  given  by 
oath.  That  which  a  suspender  swears  is 
the  best  he  can  afford  in  order  to  obtain  a 
suspension.     Ersk.  Pr.  4.  3.  6. 

CAUTIONARY    BOND.     See  Bond. 


CAUTIONARY  JUDGMENT.  Where  an 
action  in  tort  was  pending  and  the  plaintiff 
feared  the  defendant  would  dispose  of  his 
real  property  before  judf  cautionary 

judgment  red  with   a   lien  on  the 

property;  Seianer  v.  Blake.  13  Pa.  Oo.  Ct  EL 
333;    so    in    an    action   <<u    a    note 
religious  association,    where   it   w 
that  the  defendant  was  endeavoring  I 

il  estate  before  Judgment  on 
Winner  &  Dundorev.  Port Treverton Church, 
17  Pa.  Co.  Ct.  K.  38. 

CAUTIONER.  A  surety;  a  bondsman. 
One  who  binds  himself  in  a  bond  with  the 
principal  for  greater  security,  lie  is  still  a 
cautioner  whether  the  bond  be  to  pay  a 
debt  or  whether  he  undertake  to  produce 
the  person  of  the  party  for  whom  he  is 
bound.     Bell,  Diet. 

CAVEAT  (Lat  let  him  beware).  A  notice 
not  to  do  an  act,  given  to  some  officer,  min- 
isterial or  judicial,  by  a  party  having  an  in- 
terest in  the  matter. 

It  is  a  formal  caution  or  warning  not  to  do  the 
act  mentioned,  and  is  addressed  frequently  to  pre- 
vent the  admission  of  wills  to  probate,  the  granting 
letters  of   administration,   etc.     See   Wms.   Ex.    581. 

1  Burn,  Eccl.  Law   lit.  263;   Nelson.  Abr. ; 
Dane,    Abr.;    Ayliffe,    Porerg.J    3    Bla. 
246;    2  Chit  Pr.  502,  note   h;    3  Redf.  Wills 
119;  4  Brew.  Pr.  3974;  Poph.  133;  1  Sid.  371; 
In  re  Road,  8  N.  J.  L.  139.     See  Will. 

Filing  a  caveat  to  the  probate  of  a  will 
does  not  of  itself  constitute  a  'contest"  of  a 
will;  In  re  McCahan's  Estate,  221  Pa.  188, 
70  Atl.  711. 

In  Patent  Law.  A  legal  notice  to  the  pat- 
ent office  that  the  caveator  claims  to  be  the 
inventor  of  a  particular  device,  in  order  to 
prevent  the  issue  of  a  patent  on  it  to  any 
other  person  without  notice  to  the  caveator. 
It  gives  no  advantage  to  the  caveator  over 
any  rival  claimant,  but  only  secures  to  bim 
an  opportunity  to  establish  his  priority  of  in- 
vention. 

It  is  filed  in  the  patent  office  under  statu- 
tory regulations;  U.  S.  IL  S.  §  4902.  The 
principal  object  of  filing  it  is  to  obtain  for 
an  inventor  time  to  perfect  his  invention 
without  the  risk  of  having  a  patent  granted 
to  another  person  for  the  same  thing.  The 
practice   was   abolished   by  act  of  June  10, 

1910. 

It  is  also  used  to  prevent  the  issue  of  land 
patents:  Harper  v.  Baugh,  9  Qratt  iV.i.i 
508;  and  where  surveys  are  returned  to 
the  land  office,  and  marked  "in  dispute."  this 
entry  has  the  effect  of  a  caveat  against  their 
acceptance:    Hughes  v.  Stevens,  -i:;  Pa.  107. 

CAVEAT  EMPTOR  (Lat.  let  the  purchas- 
er take  care).  In  every  sale  of  real  proper- 
ty, a  purchaser's  right  to  relief  at  law  or  in 
equity  on  account  of  defects  or  Incumbrances 
in  or  upon  the  property  sold  depends  solely 
upon  the  covenants  for  title  which  he  has 
received;  2  Sugd.  Vend.  425;  Co.  Litt  3S4  a, 


CAVEAT  EMPTOR 


438 


CAVEAT  EMPTOR 


Butl.  note;  3  Swanst.  651;  Hodges  v.  Saun- 
ders, 17  Pick.  (Mass.)  475;  Red  wine  v.  Brown, 
10  Ga.  311;  Dorsey  v.  Jackman,  1  S.  &  R. 
(Pa.)  52,  7  Am.  Dec.  611;  unless  there  be 
fraud  on  the  part  of  the  vendor ;  3  B.  &  P. 
162;  Abbott  v.  Allen,  2  Johns.  Ch.  (N.  Y.) 
519,  7  Am.  Dec.  554 ;  Miles  v.  Williamson,  24 
Pa.  142 ;  Etheridge  v.  Vernoy,  70  N.  C.  713 ; 
Tuck  v.  Downing,  76  111.  71;  Beale  v.  Seive- 
ley,  8  Leigh  (Va.)  658;  Sutton  v.  Sutton,  7 
Gratt.  (Va.)  238,  56  Am.  Dec.  109;  Butler  v. 
Miller,  15  B.  Monr.  (Ky.)  627 ;  Allen  v.  Hop- 
son,  Freem.  Ch.  (Miss.)  276;  Nance  v.  El- 
liott, 38  N.  C.  40S;  Maney  v.  Porter,  3 
Humphr.  (Tenn.)  347;  Brandt  v.  Foster,  5 
la.  293;  Rice  v.  Burnet,  39  Tex.  177;  and 
consult  Rawle,  Cov.  for  Title,  5th  ed.  §  319. 
This  doctrine  applies  to  a  sale  made  under  a 
decree  foreclosing  a  mortgage,  and  the  pur- 
chaser cannot  rely  upon  statements  made  by 
the  officer  conducting  the  sales ;  Norton  v. 
Loan  &  Trust  Co.,  35  Neb.  466,  53  N.  W.  481, 
18  L.  R.  A.  88,  37  Am.  St.  Rep.  441. 

In  sales  of  personal  property  substantially 
the  same  rule  applies,  and  is  thus  stated  in 
Story,  Sales,  3d  ed.  §  348:  The  purchaser 
buys  at  his  own  risk,  unless  the  seller  gives' 
an  express  warranty,  or  unless  the  law  im- 
plies a  warranty  from  the  circumstances  of 
the  case  or  the  nature  of  the  thing  sold,  or 
unless  the  seller  be  guilty  of  fraudulent  mis- 
representation or  concealment  in  respect  to 
a  material  inducement  to  the  sale;  Benj. 
Sales,  §  611 ;  Barnard  v.  Kellogg,  10  Wall.  (U. 
S.)  383,  19  L.  Ed.  987;  Gaylord  Mfg.  Co.  v. 
Allen,  53  N.  Y.  515;  Porter  v.  Bright,  82  Pa. 
441;  Mixer  v.  Coburn,  11  Mete.  (Mass.)  559, 
45  Am.  Dec.  230;  Dean  v.  Morey,  33  la.  120; 
Roseman  v.  Canovan,  43  Cal.  110;  Arm- 
strong v.  Bufford,  51  Ala.  410;  Biggs  &  Co. 
v.  Perkins,  75  N.  C.  397.  It  is  the  settled 
doctrine  of  English  and  American  law  that 
the  purchaser  is  required  to  notice  such 
qualities  of  the  goods  purchased  as  are  rea- 
sonably supposed  to  be  within  the  reach  of 
his  observation  and  judgment.  Under  the 
civil  law  there  was  on  a  sale  for  a  fair  price 
an  implied  warranty  of  title  and  that  the 
goods  sold  were  sound,  but  under  the  com- 
mon law  there  is  a  clear  distinction  between 
the  responsibility  of  the  seller  as  to  title  and 
as  to  quality;  the  former  he  warranted,  the 
latter,  if  the  purchaser  had  opportunity  to 
examine,  he  did  not;  2  Kent  478;  Pothier, 
Cont.  de  Vente,  No.  184;  See  Misrepresen- 
tation;   Concealment;    Sales;    Warranty. 

This  doctrine  does  not  apply  in  an  action 
for  damages  for  inducing  one  by  false  repre- 
sentations to  take  an  assignment  of  a  lease 
executed  by  one  who  had  no  title  to  the 
land ;  Cheney  v.  Powell,  88  Ga.  629,  15  S.  E. 
750.  It  was  applied  where  the  buyer  of  cows 
was  a  competent  judge  and  had  ample  time, 
before  buying,  for  inspection ;  Dorsey  v. 
Watkins,  151  Fed.  340. 

Consult  Rawle.  Covenants  for  Title ;  Ben- 
jamin,   Sales;     Story,    Sales;    2   Kent   478; 


Leake,  Cont.  198 ;  1  Story,  Equity ;  Sugden, 
Vendors  &  1'. 

CAVEATOR.     One  who  files  a  caveat. 

CAYAGIUM.  A  toll  or  duty  paid  the  king 
for  landing  goods  at  some  quay  or  wharf. 
The  barons  of  the  Cinque  Ports  were  free 
from  this  duty.    Cowell. 

CEAPGILD.  Payment  of  an  animal.  An 
ancient  species  of  forfeiture.    Cowell. 

CEDE.  To  assign;  to  transfer.  Applied 
to  the  act  by  wbich  one  state  or  nation  trans- 
fers territory  to  another. 

CEDENT.  An  assignor.  The  assignor  of 
a  chose  in  action.    Kames,  Eq.  43. 

CEDULA.  In  Spanish  Law.  A  written  ob- 
ligation, under  private  signature,  by  which  a 
party  acknowledges  himself  indebted  to  an- 
other in  a  certain  sum,  which  he  promises  to 
pay  on  demand  or  on  some  fixed  day. 

In  order  to  obtain  judgment  on  such  an  instru- 
ment, it  is  necessary  that  the  party  executing  it 
should  acknowledge  it  in  open  court,  or  that  it  be 
proved  by  two  witnesses  who  saw  its  execution. 

The  citation  affixed  to  the  door  of  an  ab- 
sconding offender,  requiring  him  to  appear 
before  the  tribunal  where  the  accusation  is 
pending. 

CELEBRATION      OF      MARRIAGE.       The 

solemn  act  by  which  a  man  and  woman  take 
each  other  for  husband  and  wife,  conforma- 
bly to  the  rules  prescribed  by  law. 

CELIBACY.  The  state  or  condition  of  life 
of  a  person  not  married. 

CEMETERY.  A  place  set  apart  for  the 
burial  of  the  dead.  Cemeteries  are  regulated 
Ln  England  and  many  of  the  United  States 
by  statute. 

After  ground  has  once  been  devoted  to  this 
object  it  can  be  applied  to  secular  purposes 
only  with  the  sanction  of  the  legislature ;  L. 
R.  4  Q.  B.  407 ;  Sohier  v.  Church,  109  Mass.  1. 

An  abandoned  cemetery,  from  which  all 
the  bodies  had  not  been  removed,  cannot  be 
sold ;  Ritter  v.  Couch  (W.  Va.)  76  S.  E.  428, 
42  L.  R.  A.  (N.  S.)  1216.  A  cemetery  associa- 
tion holds  the  fee  of  lands  purchased  for  the 
purposes  of  the  association.  The  persons  to 
whom  lots  are  conveyed  for  burial  purposes 
take  only  an  easement — the  rigbt  to  use  their 
lots  for  such  purposes;  Buffalo  City  Ceme- 
tery v.  Buffalo,  46  N.  Y.  503 ;  People  v.  Trus- 
tees of  St.  Patrick's  Cathedral,  21  Hun  (N. 
Y.)  184;  Washb.  Easem.  604;  Sohier  v. 
Church,  109  Mass.  21;  Price  v.  Church,  4 
Ohio  515;  it  resembles  the  grant  of  a  pew 
in  a  church ;  Jones  v.  Towne,  58  N.  H.  462, 
42  Am.  Rep.  602;  Sohier  v.  Church,  109 
Mass.  1.  It  is  a  mere  (exclusive)  usufructu- 
ary right,  subject  to  the  conditions  of  the 
charter  and  by-laws  of  the  cemetery  com- 
pany ;  Roanoke  Cemetery  Co.  v.  Goodwin, 
101  Va.  605,  44  S.  E.  769.  It  is  in  the  na- 
ture of  an  easement;  id.;  so  is  the  right  to 
burial  in  a  particular  burial  vault ;   22  Beav. 


CEMETERY 


439 


fETERY 


596 ;  capable  of  being  created  by  deed  only ; 
8  B.  &  C.  288 ;  but  it  can  be  created  by  pre- 
scription;  Hook  v.  Joyce,  94  Ky.  450,  22  S. 
W.  651,  21  L.  R.  A.  96.  It  bas  been  beld  to 
be  a  license;  Buffalo  City  Cemetery  v.  Buf- 
falo, 46  N.  Y.  503;  Page  v.  Sywonds,  63  N. 
H.  17,  56  Am.  Rep.  481.  A  statute  directing 
a  removal  of  bodies,  without  providing  com- 
pensation to  tbe  lot  owners,  is  constitutional ; 
WYnl.  v.  Church  of  Williamsburgh,  80  Hon 
266,  30  N.  Y.  Supp.  157.  In  the  absence  of 
a  deed,  or  certificate  equivalent  thereto,  they 
are  mere  licensees;  8  B.  &  C.  288.  Non-resi- 
dence does  not  divest  an  heir  at  law  of  an 
easement  in  a  burial  lot  while  the  grave- 
stones of  his  parents  remain;  Hook  v.  Joyce, 
94  Ky.  450,  22  S.  W.  651,  21  L.  R.  A.  96. 

Their  rights  cease  when  the  cemetery  is 
vacated,  as  such,  by  authority  of  law ;  Part- 
ridge v.  Church,  39  Md.  631 ;  Craig  v.  Church, 
88  Pa.  42,  32  Am.  Rep.  417;  and  the  owner 
of  a  lot  in  which  no  interments  have  been 
made,  loses  all  use  of  it  by  the  passage  of  a 
law  making  interments  therein  unlawful ; 
Kincaid's  Appeal,  66  Pa.  411,  5  Am.  Rep.  377. 
An  act  declaring  it  unlawful  to  open  a  pub- 
lic street  through  a  cemetery  does  not  pre- 
vent one  who  has  laid  out  a  cemetery  from 
dedicating  a  strip  along  the  edge  of  it  which 
he  still  owns  for  a  public  alley,  it  not  abridg- 
ing the  rights  of  parties  to  whom  lots  had 
been  sold ;  Du  Bois  Cemetery  Co.  v.  Griffin, 
165  Pa.  81,  30  Atl.  840. 

A  cemetery  association  has  the  right  to 
limit  all  interments  to  the  family  of  the  lot 
owner  and  their  relatives;  Farelly  v.  Ceme- 
tery Ass'n,  44  La.  Ann.  28,  10  South.  386. 

The  property  of  cemetery  associations  is 
usually  exempt  from  taxation ;  Woodlawn 
Cemetery  v.  Inhabitants  of  Everett,  118 
Mass.  354;  People  v.  Cemetery  Co.,  86  111. 
336,  29  Am.  Rep.  32;  People  v.  Pratt,  129  N. 
Y.  68,  29  N.  E.  7;  and  this  exemption  has 
been  held  to  include  immunity  from  claims 
for  municipal  improvements;  Olive  Ceme- 
tery Co.  v.  City  of  Philadelphia,  37  Leg.  Int. 
(Pa.)  264.  See  1  Washb.  R.  P.  9;  Washb. 
Easem.  515  ;  Cooley,  Tax.  203  ;  but  it  is  held 
that  it  would  not  be  relieved  from  paying  an 
assessment  for  street  improvements  ;  Lima  v. 
Cemetery  Ass'n,  42  Ohio  St.  128,  51  Am.  Rep. 
S09;  Alexander  v.  City  Council,  5  Gill  (Md.) 
396,  46  Am.  Dec.  630;  Boston  Seamen's 
Friend  Society  v.  Boston,  116  Mass.  181,  17 
Am.  Rep.  153;  President,  etc.,  of  City  of 
Paterson  v.  Society,  24  N.  J.  L.  3S5;  People 
v.  Cemetery  Co.,  SO  111.  33G.  29  Am.  Rep. 
32;  Sheehan  v.  Hospital,  50  Mo.  155,  11  Am. 
Rep.  412. 

A  lot  owner  may  maintain  an  action  of 
trespass  against  one  who  wrongfully  tres- 
passes upon  it;  Smith  v.  Thompson.  55  Md. 
5,  39  Am.  Rep.  409 ;  Gowen  v.  Bessey,  94  Me. 
114,  46  Atl.  792 ;  it  has  been  held  that  he 
may  even  sue  the  owner  of  the  fee  for  such 
wrongful  act;    Hoff  v.  Olson,  101  Wis.  1181, 


70  X.  W.  1121,  70  Am.  St.  Rep.  903;    B 
mer  Land  &  Improvement  Co.  v.  Jenkins,  111 
Ala.  135,  18  South.  565,  56  Am.  St.  Rej 
lie  may  enjoin  the  cemett ;  ition  from 

preventing  a  member  of  bis  family  from  be- 
ing buried  in  the  family  lot;  Wright  v.  Cem- 
etery Corp.,  112  Ga.  884,  38  S.  E.  94,  52  L. 
R.  A.  521 ;  or  from  removing  the  ashes  of 
the  dead;  Beatty  v.  Kurtz.  2  Pet  (l 
7  L.  Ed.  521;  or  may  obtain  an  ord 
compel  the  association  to  keep  the  grounds 
in  good  order  and  maintain  the  whole  as  a 
cemetery  ;  Clark  v.  Cemetery  Co.,  GO  N.  J. 
Eq.  636.  61  Atl.  26L 

An  injunction  may  issue  against  the  lot 
owner  and  the  cemt  -i  iation  to  pre- 

vent the  burial  of  a  dog;  Hertle  v.  Riddell, 
127  Ky.  623,  106  S.  W.  282,  15  L.  11.  A.  (X. 
S.i  796,  128  Am.  St.  Rep.  364. 

A  purchaser  of  a  lot  must  look  to  the  char- 
ter and  by-laws  of  the  corporation,  they  be- 
ing part  of  his  contract  of  purchase.  When 
the  by-laws  provide  that  "this  cemetery  is 
set  apart  for  the  burial  of  the  white  race," 
a  negro  may  not  be  buried  therein ;  Hertle 
v.  Riddell,  127  Ky.  623,  106  S.  W.  282,  15  L. 
R.  A.  (N.  S.)  796,  128  Am.  St  Rep.  364 ;  Peo- 
ple v.  Cemetery  Co.,  258  111.  36,  101  N.  E. 
219.  One  who  purchased  a  lot  in  a  distinc- 
tively Roman  Catholic  cemetery  takes  it  with 
the  tacit  understanding  that  he  will  not  be 
allowed  to  use  it  for  the  burial  of  one  not  a 
member  of  that  church ;  People  v.  Trustees 
of  St  Patrick's  Cathedral,  21  Hun  (X.  Y.i 
184 ;  Dwenger  v.  Geary,  113  Ind.  106,  1 1  X. 
E.  903.  But,  where  a  lot  was  sold  to  a  col- 
ored man  for  burial  purposes,  tbe  corpora- 
tion was  not  allowed  afterwards  to  change 
its  by-laws  so  as  to  exclude  him  and  his  fam- 
ily from  the  right  of  burial  therein ;  Mt 
Moriah  Cemetery  Ass'n  v.  Com.,  81  Pa.  235, 
22  Am.  Rep.  743. 

Where  a  testator  devised  to  trustees  a  lot 
of  ground  for  burial  of  the  dead  of  his  fam- 
ily, without  any  fund  for  its  care,  and  the 
lot  fell  into  disuse,  the  Orphans'  Court  may 
decree  its  sale  and  apply  the  proceeds  in  part 
to  buying  a  lot  in  another  cemetery,  remov- 
ing the  dead,  marking  the  graves  or  caring 
for  the  lot  in  the  future  and  may  divide  the 
remainder  among  the  heirs  of  the  testator, 
but  with  no  part  for  an  elaborate  monument 
to  the  testator;  Young's  Estate,  224  Pa.  570, 
73  Atl.  941.  The  residue  la  distributal 
real  estate;  Young's  Estate,  20  Pa. D. R.686. 

See  Dead  Body;  Charitable  I'm  s  (as  to 
a  legacy  to  keep  a  lot  in  order). 

CENE6ILD.  In  Saxon  Law.  A  pecuniar; 
mulct  or  One  paid  to  the  relations  of  a  mur- 
dered person  by  the  murderer  or  his  rela- 
tions.    Spelman,  Gloss. 

CENNINGA.  A  notice  given  by  a  buyer  to 
a  seller  that  the  things  which  bad  been  sold 
were  claimed   by   another,  in  order  that  he 


CENNINGA 


440 


CENSUS  REGALIS 


might  appear  and  justify  the  sale.  Blount; 
Whishaw. 

The  exact  significance  of  this  term  is  somewhat 
doubtful.  It  probably  denoted  notice,  as  defined 
above.  The  finder  of  stray  cattle  was  not  always 
entitled  to  it;  for  Spelman  says,  "As  to  strange  (or 
stray)  cattle,  no  one  shall  have  them  but  with  the 
consent  of  the  hundred  of  tithingmen  ;  unless  he 
have  one  of  these,  we  cannot  allow  him  any  cen- 
ninga   (I   think  notice)."     Spelman,  Gloss. 

CENS.  In  Canadian  Law.  An  annual  pay- 
ment or  due  reserved  to  a  seigneur  or  lord, 
and  imposed  merely  in  recognition  of  his  su- 
periority.   Guyot,  Inst.  c.  9. 

The  land  or  estate  so  held  is  called  a  censive;  the 
tenant  is  a  censitarie.  It  was  originally  a  tribute 
of  considerable  amount,  but  became  reduced  in 
time  to  a  nominal  sum.  It  is  distinct  from  the 
rentes.  The  cens  varies  in  amount  and  in  mode 
of  payment.  Payment  is  usually  in  kind,  but  may 
be  in  silver ;    2  Low.  C.  40. 

CENSARIA.  A  farm,  or  house  and  land, 
let  at  a  standing  rent.    Cowell. 

CENSO.      In    Spanish    and     Mexican     Law. 

An  annuity ;  a  ground  rent.  The  right  which 
a  person  acquires  to  receive  a  certain  annual 
pension,  in  consideration  of  the  delivery  to 
another  of  a  determined  sum  of  money  or  of 
an  immovable  thing.  Civil  Code  Mex.  art. 
3206 ;  Black,  Diet, ;  Trevino  v.  Fernandez, 
13  Tex.  655. 

CENSO  RESERVATIO.  In  Spanish  and 
Mexican  Law.  The  right  to  receive  from  an- 
other an  annual  pension  by  virtue  of  having 
transferred  land  to  him  by  full  and  perfect 
title.     Trevino  v.  Fernandez,  13  Tex.  655. 

CENSUS.  An  official  reckoning  or  enu- 
meration of  the  inhabitants  and  wealth  of  a 
country. 

The  census  of  the  United  States  is  taken 
every  tenth  year,  in  accordance  with  the  con- 
stitution ;  and  many  of  the  states  have  made 
provisions  for  a  similar  decennial  reckoning 
at  intervening  periods. 

The  act  of  July  2,  1909,  provides  for  the 
13th  and  subsequent  censuses.  The  period  of 
three  years  beginning  July  1st  next  preced- 
ing the  census,  is  designated  as  the  decennial 
census  period  and  the  reports  must  be  com- 
pleted and  published  witbin  that  period. 

Certified  copies  of  census  returns  are  ad- 
missible in  evidence  upon  the  question  of  the 
age  of  a  citizen  deceased  since  the  return 
was  made ;  Priddy  v.  Boice,  201  Mo.  309,  99 
S.  W.  1055,  9  L.  R.  A.  (N.  S.)  718,  119  Am. 
St.  Rep.  762,  9  Ann.  Cas.  874;  but  the  rec- 
ord does  not  import  absolute  verity ;  West- 
ern Cherokee  Indians  v.  U.  S.,  27  Ct.  CI.  1. 

The  courts  take  judicial  notice  of  the  re- 
sults of  a  census ;  State  v.  Braskamp,  87  la. 
58S,  54  N.  W.  532;  People  v.  Williams,  64 
Cal.  87,  27  Pac.  939;  Guldin  v.  Schuylkill 
County,  149  Pa.  210,  24  Atl.  171;  Hawkins 
v.  Thomas,  3  Ind.  App.  399,  29  N.  E.  157; 
State  v.  County  Court,  128  Mo.  427,  30  S.  W. 
103;  centra,  People  v.  Rice,  135  N.  Y.  473, 
31  N.  E.  921,  16  L.  R.  A.  836. 


CENSUS  REGALIS.  The  royal  property 
(or  revenue). 

CENT  (Lat.  centum,  one  hundred).  A 
coin  of  the  United  States,  weighing  forty- 
eight  grains,  and  composed  of  ninety-five  per 
centum  of  copper  and  of  tin  and  zinc  in  sucb 
proportions  as  shall  be  determined  by  the  Di- 
rector of  the  Mint  Act  of  Feb.  12,  1873,  s. 
13.     See  Rev.  Stat,  section  3515. 

Previous  to  the  act  of  congress  just  cited,  the 
cent  was  composed  wholly  of  copper.  By  the  act 
of  April  2,  1792,  Stat  at  Large,  vol.  1,  p.  248,  the 
weight  of  the  cent  was  fixed  at  eleven  penny- 
weights, or  264  grains;  the  half  cent  in  proportion. 
Afterwards,  namely,  on  the  14th  of  January,  1793,  it 
was  reduced  to  208  grains;  the  half-cent  in  pro- 
portion. 1  U.  S.  Stat,  at  Large,  299.  In  1796  (Jan. 
26),  by  the  proclamation  of  President  Washington, 
who  was  empowered  by  law  to  do  so,  act  of  March 
3,  1795,  sect.  8,  1  U.  S.  Stat,  at  Large,  440,  the  cent 
was  reduced  in  weight  to  168  grains;  the  half-cent 
in  proportion.  It  remained  at  this  weight  until  tho 
passage  of  the  act  of  Feb.  21,  1857,  which  provided 
for  a  weight  of  seventy-eight  grains  and  an  alloy  of 
eighty-eight  per  centum  of  copper  and  twelve  of 
nickel.  The  same  act  directs  that  the  coinage  of 
half-cents  should  cease.  By  the  coinage  act  of  Feb. 
12,  1873,  the  weight  and  alloy  were  fixed  as  above 
stated.  The  first  issue  of  cents  from  the  national 
mint  was  in  1793,  and  has  been  continued  every  year 
since,  except  1815.  But  in  1791  and  1792  some  experi- 
mental pieces  were  struck,  among  which  was  the  so- 
called  Washington  cent  of  those  years. 

C  EN  TEN  A.     See  Hundred. 

CENTESIMA  (Lat.  centum).  In  Roman 
Law.    The  hundredth  part. 

Usurice  centesimce.  Twelve  per  cent,  per  annum; 
that,  is,  a  hundredth  part  of  the  principal  was  due 
each  month, — the  month  being  the  unit  of  time  for 
which  the  Romans  reckoned  interest.  2  Bla.  Com. 
462,  n. 

CENTRAL  CRIMINAL  COURT.  A  court 
in  England  (erected  in  1834)  which  is  the 
court  of  assize  and  of  quarter  sessions  for 
the  city  of  London  and  its  liberties  and  the 
court  of  assize  for  the  counties  of  London 
and  Middlesex,  and  parts  of  Essex,  Kent 
and  Surrey.  It  has  jurisdiction  over  all  of- 
fences committed  on  the  high  seas  or  within 
the  jurisdiction  of  the  admiralty  and  offenc- 
es committed  outside  its  jurisdiction,  sent 
to  it  by  the  King's  Bench  Division  under 
a  writ  of  certiorari.  It  consists  of  the  lord 
chancellor,  the  judges  of  the  High  Court,  the 
lord  mayor,  the  aldermen,  recorder,  and  com- 
mon serjeant  of  the  city  of  London,  and  two 
commissioners. 

Twelve  sessions  at  least  are  held  every 
year,  at  the  Old  Bailey.  The  important  cas- 
es are  heard  in  a  session  of  the  court  pre- 
sided over  by  two  of  the  judges  of  the  High 
Court.  The  less  important  cases  are  tried 
by  either  the  recorder  or  common  serjeant. 
Odger,  C.  L.  986. 

CENTUMVIRI  (Lat.  one  hundred  men). 
The  name  of  a  body  of  Roman  judges. 

Their  exact  number  was  one  hundred  and  five, 
there  being  selected  three  from  each  of  the  thirty- 
five  tribes  comprising  all  the  citizens  of  Rome. 
They  constituted,  for  ordinary  purposes,  four  tribu- 
nals ;  but  some  cases  (called  centumvirales  causce} 
required  the  judgment  of  all  the  judges.  3  Bla 
Com.  515. 


CENTURY 


441 


CERT  MONEY 


CENTURY.  One  hundred.  One  hundred 
years. 

The  Romans  were  divided  into  centuries,  as  the 
English  were  formerly  divided  into  hundreds. 

CEORL.  A  tenant  at  will  of  free  condi- 
tion, who  held  land  of  the  thane  on  condition 
of  paying  rent  or  services. 

A  freeman  of  inferior  rank  occupied  in 
husbandry.     Spelruan,  Gloss. 

Those  who  tilled  the  outlands  paid  rent ; '  those 
who  occupied  or  tilled  the  inlands,  or  demesne, 
rendered  services.  Under  the  Norman  rule,  this 
term,  as  did  others  which  denoted  workmen,  es- 
pecially those  which  applied  to  the  conquered  race, 
became  a  term  of  reproach,  as  is  indicated  by  the 
popular  signification  of  churl.  Cowell;  Spelman, 
Gloss.     See  1   Poll.   &   Maitl.   8;    2  id.  458. 

CEPI  (Lat).  I  have  taken.  It  was  of 
frequent  use  in  the  returns  of  sheriffs  when 
they  were  made  in  Latin ;  as,  for  example, 
cepi  corpus  et  B.  B.  (I  have  taken  the  body 
and  discharged  him  on  bail  bond)  ;  cepi  cor- 
pus et  est  in  custodia  (I  have  taken  the  body 
and  it  is  in  custody)  ;  cepi  corpus  et  est 
languidus  (I  have  taken  the  body  and  he  is 
sick ) . 

CEPIT  (Lat.  capcre,  to  take;  cepit,  he 
took  or  has  taken).  A  form  of  replevin 
which  is  brought  for  carrying  away  goods 
merely.  Wells,  Repl.  §  53 ;  Cummings  v. 
Vorce,  3  Hiil  (N.  Y.)  282.  Non  detinet  is 
not  the  proper  answer  to  such  a  charge; 
Davis  v.  Calvert,  17  Ark.  85.  And  see  Ford 
y.  Ford,  3  Wis.  399.  Success  upon  a  non 
cepit  does  not  entitle  the  defendant  to  a  re- 
turn of  the  property;  Douglass  v.  Garrett,  5 
Wis.  S5.  A  plea  of  non  cepit  is  not  inconsist- 
ent with  a  plea  showing  property  in  a  third 
person;  Smith  v.  Morgan,  8  Gill   (Md.)   133. 

A  technical  word  necessary  in  an  indict- 
ment for  larceny.  The  charge  must  be  that 
the  defendant  took  the  thing  stolen  with  a 
felonious  design.  Bacon,  Abr.  Indictment, 
G.,  1. 

CEPIT  ET  ABDUXIT  (Lat).  He  took 
and  led  away.  Applicable  in  a  declaration 
in  trespass  or  indictment  for  larceny  where 
the  defendant  has  taken  away  a  living  chat- 
tel. 

CEPIT  ET  ASPORTAVIT  (Lat).  He 
took  and  carried  away.  Applicable  in  a  dec- 
laration in  trespass  or  an  indictment  for 
larceny  where  the  defendant  has  carried 
away  goods  without  right.  4  Bla.  Com.  231. 
See  Carrying  Away  ;  Labceny. 

CEPIT  IN  ALIO  LOCO  (Lat  he  took  in 
another  place).  A  plea  in  replevin,  by  which, 
the  defendant  alleges  that  he  took  the  thing 
replevied  in  another  place  than  that  men- 
tioned in  the  declaration;  1  Chit.  PI.  490; 
*•  2  id.  558 ;  Rast  Entr.  554,  555 ;  Morris,  Repl. 
141 ;  Wells,  Repl.  §  707.  It  is  the  usual  plea 
where  the  defendant  intends  to  avow  or  jus- 
tify the  taking  to  entitle  himself  to  a  re- 
turn. 


CERT  MONEY.  The  head-money  given  by 
the  tenants  of  several  manors  yearly  to  the 
lords,  for  the  purpose  of  keeping  up  certain 
inferior  courts.  Called  in  the  ancient  rec- 
ords cert  urn  letce  (leet  money  i.     Cowell. 

CERTAINTY.  In  Contracts.  Distinctness 
and  accuracy  of  statement 

A  thing  is  certain  when  its  essence,  quality,  and 
quantity  are  described,  distinctly  set  forth,  etc. 
Dig.  12,  1.  6.  It  is  uncertain  when  the  description  is 
not  that  of  an  individual  object,  but  designates  only 
the  kind.     La.  Civ.  Code,  art.  3522,  no.  8;    5  Co.  121. 

If  a  contract  be  so  vague  in  its  terms  that 
its  meaning  cannot  be  certainly  collected, 
and  the  statute  of  frauds  preclude  the  ad- 
missibility  of  parol  evidence  to  clear  up  the 
difficulty ;  5  B.  &  C.  583 ;  or  parol  evidence 
cannot  supply  the  defect  then  neither  at 
law  nor  in  equity  can  effect  be  given  to  it; 
1  R.  &  M.  116.  If  it  is  impossible  to 
tain  any  definite  meaning,  such  agreement 
is  necessarily  void;  [1892]  Q.  B.  478.  As  to 
uncertainty  of  contract  see  Davie  v.  Min. 
Co.,  93  Mich.  491,  53  N.  W.  625,  24  L.  R.  A. 
357 ;  Van  Schaick  v.  Van  Buren,  70  Hun  575, 
24  N.  Y.  Supp.  306. 

It  is  a  maxim  of  law  that  that  is  certain 
which  may  be  made  certain:  id  certum  est 
quod  certum  reddi  potest;  Co.  Litt  43.  For 
example,  when  a  man  sells  the  oil  he  has  in 
his  store  at  so  much  a  gallon,  although  there 
is  uncertainty  as  to  the  quantity  of  oil,  yet, 
inasmuch  as  it  can  1  lined,  the  max- 

im applies,  and  the  sale  is  good.  See,  gen- 
erally, Story,  Eq.  §  240;  Mitf.  Eq.  PI.,  Jere- 
my ed.  41. 

In  Pleading.  Such  clearness  and  distinct- 
ness of  statement  of  the  facts  which  consti- 
tute the  cause  of  action  or  ground  of  de- 
fence that  they  may  be  understood  by  the 
party  who  is  to  answer  them,  by  the  jury 
who  are  to  ascertain  the  truth  of  the  allega- 
tions, and  by  the  court  who  are  to  give  the 
judgment.  2  B.  &  P.  267;  Co.  Litt  303; 
Com.  Dig.  Pleader.  See  Giroux  Amalgama- 
tor Co.  v.  White,  21  Or.  435,  28  Pac.  390. 

Certainty  to  a  common  intent  is  attained 
by  a  form  of  statement  in  which  words  are 
used  in  their  ordinary  meaning,  though  by 
argument  or  inference  they  may  be  made 
to  bear  a  different  one.  See  2  H.  Bla.  530; 
Andr.  Steph.  PI.  384. 

Certainty  to  a  certain  intent  in  general  is 
attained  when  the  meaning  of  the  statute 
may  be  understood  upon  a  fair  and  reason- 
able construction  without  recurrence  to  pos- 
sible facts  which  do  not  appear;  1  Wins. 
Saund.  49;  Spencer  v.  Sonthwick,  9  Johns. 
(X.  Y.)  317;  Fuller  v.  Hampton,  5  Ooni 

Certainty  to  a  >■■  rtain  intent  in  particular 
is  attained  by  that  technical  accuracy  of 
statement  which  precludes  all  argument,  in- 
ference, and  presumption  against  the  party 
pleading.  When  this  certainty  is  required, 
the  party  must  not  only  state  the  facts  of 
his  case  in  the  most  precise  way,  but  add  to 
them  such  as  show  that  they  are  not  to  be 


CERTAINTY 


442 


CERTIFICATE 


controverted,  and,  as  it  were,  anticipate  the 
case  of  his  adversary ;  Lawes,  PL  54. 

The  last  description  of  certainty  is  re- 
quired in  estoppels ;  Co.  Litt.  303 ;  2  EL  Bla. 
530 ;  Dougl.  159 ;  and  in  pleas  which  are  not 
favored  in  law,  as  alien  enemy ;  8  Term  167 ; 
Russel  v.  Skipwith,  G  Binn  (Pa.)  247.  See 
Clarke  v.  Morey,  10  Johns.  (N.  Y.)  70.  With 
respect  to  an  indictment,  it  is  laid  down  that 
"an  indictment  ought  to  be  certain  to  every 
intent,  and  without  any  intendment  to  the 
contrary;"  Cro.  Eliz.  490;  and  the  charge 
contained  in  it  must  be  sufficiently  explicit 
to  support  itself;  for  no  latitude  of  inten- 
tion can  be  allowed  to  include  anything  more 
than  is  expressed ;  2  Burr.  1127 ;  U.  S.  v. 
Cruikshank,  92  U.  S.  542,  23  L.  Ed.  588;  U. 
S.  v.  Simmons,  96  TJ.  S.  360,  24  L.  Ed.  819; 
State  v.  Stiles,  40  la.  148 ;  State  v.  Philbrick, 
31  Me.  401;  Com.  v.  Terry,  114  Mass.  263; 
State  v.  Fancher,  71  Mo.  460;  State  v.  Mes- 
senger, 58  N.  H.  348. 

These  definitions,  which  have  been  adopt- 
ed from  Coke,  have  been  subjected  to  severe 
criticism,  but  are -of  some  utility  in  draw- 
ing attention  to  the  different  degrees  of  ex- 
actness and  fulness  of  statement  required  in 
different  instances.  Less  certainty  is  requir- 
ed where  the  law  presumes  that  tbe  knowl- 
edge of  the  facts  is  peculiarly  in  the  opposite 
party  ;  8  East  85 ;  13  id,  112 ;  3  Maule  &  S. 
14;  People  v.  Dunlap,  13  Johns.  (N.  Y.)  437. 

Less  certainty  than  would  otherwise  be 
requisite  is  demanded  in  some  cases,  to 
avoid  prolixity  of  statement;  2  Wms.  Saund. 
117,  n.  1.     See,  generally,  1  Chit.  PI. 

CERTIFICANDO  DE  REC0GNITI0NE 
STAPUL/E.  In  English  Law.  A  writ  com- 
manding the  mayor  of  the  staple  to  certify 
to  the  lord  chancellor  a  statute  staple  taken 
before  him  where  the  party  himself  detains 
It,  and  refuses  to  bring  in  the  same.  There 
is  a  like  writ  to  certify  a  statute  merchant 
and  in  divers  other  cases.  Reg.  Orig.  148; 
Black,  Diet. 

CERTIFICATE.  A  writing  made  in  any 
court,  and  properly  authenticated,  to  give 
notice  to  another  court  of  anything  done 
therein. 

A  writing  by  which  testimony  is  given 
that  a  fact  has  or  has  not  taken  place. 

Certificates  are  either  required  by  law,  as 
an  insolvent's  certificate  of  discharge,  an 
alien's  certificate  of  naturalization,  which 
are  evidence  of  the  facts  therein  mentioned ; 
or  voluntary,  which  are  given  of  the  mere 
motion  of  the  party  giving  them,  and  are 
in  no  case  evidence.  Com.  Dig.  Chancery 
(T.  5)  ;  1  Greenl.  Ev.  §  498;  2  Willes  549. 

There  were  anciently  various  modes  of 
trial  commenced  by  a  certificate  of  various 
parties,  which  took  the  place  of  a  writ  in  a 
common-law  action.  See  Com.  Dig.  Certifi- 
cate. 

By  statute,  the  certificates  of  various  of- 
ficers may  be  made  evidence,  in  which  case 


the  effect  cannot  be  extended  by  including 
facts  other  than  those  authorized ;  1  Maule 
&  S.  599;  U.  S.  v.  Buford,  3  Pet.  (U.  S.)  12, 
29,  7  L.  Ed.  585;  Arnold  v.  Tourtellot,  13 
Pick.  (Mass.)  172 ;  Stewart  v.  Allison,  6  S.  & 
R.  (Pa.)  324,  9  Am.  Dec.  433;  Governor  v. 
Bell,  7  N.  C.  331;  Exchange  &  Banking  Co. 
of  New  Orleans  v.  Boyce,  3  Rob.  (La.)  307. 
An  officer  who  has  made  a  defective  certifi- 
cate of  a  married  woman's  acknowledgment 
cannot  correct  the  defect  after  the  expira- 
tion of  his  term;  Griffith  v.  Ventress,  91 
Ala.  366,  8  South.  312,  11  L.  R.  A.  193,  24 
Am.  St.  Rep.  918;  nor  can  he  contradict  his 
own  certificate  by  testifying  to  fraud  and 
coercion  on  the  part  of  the  husband  to- 
ward the  wife;  Hockman  v.  McClanahan, 
87  Va.  33,  12  S.  E.  230.  A  certificate  of  ac- 
knowledgment is  a  judicial  act,  and  in  the 
absence  of  fraud  conclusive  of  material  facts 
stated  in  it;  Cover  v.  Manaway,  115  Pa.  33S, 
8  Atl.  393,  2  Am.  SL  Rep.  552;  Citizen's  Sav- 
ing &  Loan  Ass'n  v.  Heiser,  150  Pa.  514, 
24  Atl.  733;  but  only  of  facts  required  by 
statute  to  be  included  in  it,  and  therefore 
not  that  the  wife  of  the  grantor  was  of 
full  age ;  Williams  v.  Baker,  71  Pa.  476.  See 
Return;  Notary;  Acknowledgment;  Stock. 

CERTIFICATE  OF  ASSIZE.  A  writ 
granted  for  the  re-examination  or  retrial  of 
a  matter  passed  by  assize  before  justices. 
Fitzh.  Nat.  Brev.  181.  It  is  now  entirely  ob- 
solete. 3  Bla.  Com.  3S9.  Consult,  also,  Com- 
yns,  Dig.  Assise  (B,  27,  28). 

CERTIFICATE  OF  COSTS.  See  Judge's 
Certificate. 

CERTIFICATE  OF  DEPOSIT.  A  written 
statement  from  a  bank  that  the  party  named 
therein  has  deposited  the  amount  of  money 
specified  in  the  certificate  and  that  the  same 
is  held  subject  to  his  order  in  accordance 
with  the  terms  thereof. 

When  payable  at  a  future  date,  with  in- 
terest till  due,  for  the  use  of  a  person  named 
or  to  his  order,  upon  return  of  the  certifi- 
cate, it  is  a  negotiable  promissory  note; 
Miller  v.  Austen,  13  How.  (U.  S.)  218,  14  L. 
Ed.  119;  Bull  v.  Bank,  123  U.  S.  105,  8  Sup. 
Ct.  62,  31  L.  Ed.  97;  In  re  Baldwin's  Estate, 
170  N.  Y.  160,  63  N.  E.  62.  58  L.  R.  A.  124; 
Poorman  v.  Mills,  35  Cal.  118,  95  Am.  Dec. 
90;  Lynch  v.  Goldsmith,  64  Ga.  42;  Beards- 
ley  v.  Webber,  104  Mich.  88,  62  N.  W.  173; 
Bank  of  Saginaw  v.  Title  &  Trust  Co.,  105 
Fed.  491 ;  Forrest  v.  Trust  Co.,  174  Fed.  345. 
This  has  been  substantially  followed  in  all 
the  states  except  Pennsylvania,  where  it  has 
.always  been  held  otherwise,  if  the  certificate 
contains  no  express  promise  to  pay;  Patter- 
son v.  Poindexter,  6  W.  &  S.  (Pa.)  227,  40 
Am.  Dec.  554;  and  this  was  recognized  to  be 
the  law  in  Pennsylvania  as  late  as  1909 ;  For- 
rest v.  Trust  Co.,  174  Fed.  345,  where  the 
court  followed  the  rule  of  Miller  v.  Austen, 
13  How.  (U.  S.)  218,  14  L.  Ed.  119;  and  ex- 
pressed   the    opinion   that    such   certificates 


CERTIFICATE  OF  DEPOSIT 


443 


CERTIORARI 


were  negotiable  under  the  Negotiable  Instru- 
ments Act  enacted  in  Pennsylvania,  as  well 
as  under  the  general  commercial   law. 

CERTIFICATE  OF  REGISTRY.  A  cer- 
tificate that  a  ship  has  been  registered  as 
the  law  requires.  3  Kent  149.  Under  the 
United  States  statutes,  "every  alteration  in 
the  property  of  a  ship  must  be  Indorsed  on 
the  certificate  of  registry,  and  must  Itself 
be  registered."  Unless  this  is  dune,  the  ship 
or  vessel  loses  its  national  privileges  as  an 
American  vessel;  1  Pars.  Sh.  &  Adm.  50. 
The  English  statutes  make  such  a  transfer 
void.  Stat.  3  &  4  Will.  IV,  c.  54;  17  &  18 
Vict  c.  104;  Abb.  Sh.  (13th  ed.)  92& 

The  registry  is  not  a  document  required 
by  the  law  of  nations  as  expressive  of  a 
ship's  national  character;  4  Taunt.  367;  and 
is  at  most  only  prima  facie  evidence  of  own- 
ership; it.  s.  v.  Brune,  2  Wall.  Jr.  264,  Fed. 
Cas.  No.  14,677;  Newb.  Adm.  176,  312;  Lin- 
coln v.  Wright,  23  Pa.  76.  62  Am.  Dec.  316; 
Brooks  v.  Minturn,  1  Cal.  481;  33  E.  L.  & 
Eq.  204.  The  registry  acts  are  to  be  con- 
sidered as  forms  of  local  or  municipal  in- 
stitution for  purposes  of  public  policy;  3 
Kent  149. 

CERTIFIED  CHECK.  A  check  which  has 
been  recognized  by  the  proper  officer  as  a 
valid  appropriation  of  the  amount  of  money 
therein  specified  to  the  person  therein  named, 
and  which  bears  upon  itself  the  evidence  of 
such  recognition.     See  Check. 

CERTIFIED    PUBLIC    ACCOUNTANT.     A 

term  applied  to  trained  accountants  who 
examine  the  books  of  accounts  of  corpora- 
tions and  others  and  report  upon  them.  See 
Auditor. 

CERTIORARI.  A  writ  issued  by  a  superi- 
or to  an  inferior  court  of  record,  or  other 
tribunal  or  officer,  exercising  a  judicial  func- 
tion, requiring  the  certification  and  return 
to  the  former  of  some  proceeding  then  pend- 
ing, or  the  record  and  proceedings  in  some 
cause  already  terminated,  in  cases  where 
the  procedure  is  not  according  to  the  course 
of  the  common  law. 

The  extensive  use  of  this  writ  and  the  lack  of 
precise  judicial  definition  of  the  public  bodies  and 
proceedings  to  which  it  is  applicable  lend  interest 
to  the  early  common  law  definitions,  which  are  of 
value  since  the  use  of  the  writ  is  still  usually  reg- 
ulated   by   common    law   principles    and   precedents. 

The  most  frequently  quoted  common  law  defini- 
tions are  those  of  Fitzherbert  and  Bacon,  by  the 
first  of  which  the  writ  lies  in  the  case  of  records 
of  the  courts,  the  treasury,  sheriffs,  coroners,  com- 
missioners, escheators  ;  F.  N.  B.  554  A.  He  includes 
among  forms  given  one  to  the  mayor  and  sheriff 
of  London  in  case  of  indictment  and  attachment 
and  one  to  the  mayor  and  sheriffs  of  York  in  assize 
of  fresh  force  sued  out  before  them  without  writ; 
id.  554  E,  557  L.  Bacon  uses  only  the  general  terms, 
"judges  or  officers  of  inferior  courts"  ;  Bac.  Abr. 
Sl62 ;  but  in  an  enumeration  of  instances  entitled 
"to  what  court  it  lies"  he  puts  an  "inquisition  taken 
by  a  sheriff  .  .  .  and  the  verdict  and  judgment 
thereon,"  which  were  quashed  on  the  ground  that, 
no  notice  appearing,  the  record  did  not  show  juris- 
diction, and  on  objection  that  the  writ  did  not,  he 
was  answered  that  "there  can  be  no  doubt  of  that 


if  it  is  not  prohibited  by  the  act  of  Parliament"  ; 
id.  168,  citing  4  Burr.  2244.  It  was  said  that  "the 
substance  of  this  (Bacon's)  definition  has  never 
been  departed  from,  except  where  the  statute  has 
broadened  the  scope  of  the  writ"  ;  In  re  Dance, 
2  N.  D.  184,  49  N.  W.  733,  33  Am.  St  Rep.  768.  The 
English  Court  of  Appeal  says  that  "certiorari  Is  a 
writ  in  aid  of  justice,  and  is  the  apt  means  of  pre- 
venting the  infliction  or  continuance  of  wrong  from 
any  assumption  or  excess  of  Jurisdiction";  2  L.  R. 
(K.  B.)  318;  it  is  matter  of  discretion,  not  of 
right;    id. 

Blackstone  refers  only  to  it  as  a  means  of  remov- 
ing criminal  causes  from  an  inferior  court  to  the 
King's  Bench,  as  the  supreme  court  of  criminal 
jurisdiction;  4  Bla.  Com.  265;  or  cases  of  Peers 
to  the  House  of  Lords  ;  id.  321 ;  or  after  summary 
order  in  a  lower  court  which  might  be  quashed  or 
confirmed;  id.  272.  It  might  be  granted  at  the  in- 
stance of  either  prosecution  or  defendant,  in  the 
former  case  as  matter  of  right,  in  the  latter  as 
matter  of  discretion;    id.  3-1. 

The  function  of  the  writ  is  to  secure  the  correction 
of  errors  of  a  Judicial  nature  in  the  proceedings  of 
inferior  courts  or  in  the  decisions  of  special  tribu- 
nals, commissioners,  magistrates  and  officers  exer- 
cising judicial  powers  affecting  the  property  or 
rights  of  a  citizen,  who  act  in  a  summary  way,  and 
not  according  to  the  course  of  the  common  law, 
and  it  also  applies  in  many  cases  to  the  proceedings 
of  municipal  corporations.  It  has  also  been  allowed 
when  the  power  is  ministerial  but  necessarily  con- 
nected with  judicial  action;  People  v.  Hill,  65  Barb. 
(N.  Y.)  170;  In  re  Nichols,  6  Abb.  N.  C.  (N.  Y.) 
474.  The  writ  is  issued  in  two  classes  of  cases:  (1) 
Where  the  inferior  court  has  exceeded  its  jurisdic- 
tion; (2)  where  it  has  proceeded  illegally  and  there 
is  no  appeal  or  writ  of  error ;  White  v.  Wagar,  185 
111.  195,  57  N.  E.  26,  M  L  R.  A.  60,  quoting  Hyslop  v. 
Finch,  99   111.   171. 

"Official  acts,  executive,  legislative,  administra- 
tive or  ministerial  in  their  nature  or  character, 
were  never  subject  to  review  by  certiorari.  The 
writ  could  be  issued  only  for  the  purpose  of  re- 
viewing some  judicial  act;"  People  v.  Bra 
N.  Y.  44,  47,  59  N.  E.  701;  St.  Louis,  S.  F.  &  T.  Ry. 
Co.  v.  Seale,  229  U.  S.  156,  33  Sup.  Ct.  651,  57  L  Ed. 
— .  In  some  states  the  writ  has  been  abolished 
by  statute  so  far  as  the  common  law  name  is  con- 
cerned, but  the  remedy  is  preserved  under  the  new 
statutory  name  of  "writ  of  review";  but  this  term 
and  the  old  one  mean  precisely  the  same  remedy, 
except  so  far  as  it  may  be  modified  by  statute; 
People  v.  County  Judge,  40  Cal.  479  ;  Sutherlin  v. 
Roberts,  4  Or.  388;  Southwestern  Telegraph  &  Tele- 
phone Co.  v.  Robinson,  48  Fed.  771,  1  C.  C.  A  91. 
So  where,  by  statute,  appellate  proceedings  are  to 
be  taken  by  appeal  in  all  cases  theretofore  covered 
by  error,  appeal  or  certiorari,  but  the  right  of 
review  is  not  changed  in  extent,  it  was  held  that 
the  appeal  was  in  eifect  a  common  law  certiorari, 
and  the  right  to  issue  a  certiorari  remained  the 
same  as  before  ;  Rand  v.  King,  134  Pa.  641,  19  Atl. 
806 ;  so  an  appeal  in  a  habeas  corpus  case  is  equiv- 
alent to  a  certiorari  and  brings  up  only  the  record; 
Com.  v.  Superintendent  of  Philadelphia  County 
Prison,  220  Pa.  401,  69  Atl.  916,  21  L.  R.  A.  (N. 
S.)  939. 

The  writ  lies  in  most  of  the  states  to  re- 
move from  the  lower  courts  proceedings 
which  are  created  and  regulated  by  statute 
merely,  for  the  purpose  i  a;  Com.  v. 

West  Boston  Bridge,  13  Pick.  (Mass.)  195; 
Bath  Bridge  &  Turnpike  Co.  v.  Magoun,  8 
Greenl.  (Me.)  203;  Bob  v.  State.  2  Zerg. 
(Tenn.)  17.".;  Williamson  v.  Carnan,  1  <;.  & 
J.  (Md.)  196;  Adams  v.  Newfane,  8  Vt.  271; 
People  v.  Lawrence,  54  Barb.  (N.  Y.i  589; 
John  v.  Statt-,  1  Ala.  05;  People  v.  Supervis- 
ors, 8  Cal.  58;  in  re  Robinson's  Estate,  6 
Mich.   137;  Board  of  Com'rs  of  iiillsboro  v. 


CERTIORARI 


444 


CERTIORARI 


Smith,  110  N.  C.  417,  14  S.  E.  972 ;  Miller  v. 
Trustees,  88  111.  27;  and  to  complete  the  pro- 
ceedings when  the  lower  court  refuses  to  do 
so,  upon  erroneous  grounds;  Anonymous,  2 
N.  C.  302 ;  Auditor  v.  Woodruff,  2  Ark.  73,  33 
Am.  Dec.  368;  and  to  correct  errors  in  law; 
McAllilley  v.  Horton,  75  Ala.  491;  Rawson  v. 
McElvaine,  49  Mich.  194,  13  N.  W.  513;  Lap- 
an  v.  Cumberland  County  Com'rs,  65  Me. 
160;  Couover  v.  Davis,  48  N.  J.  L.  112,  2 
Atl.  667.  In  England;  13  E.  L.  &  Eq.  129; 
9  L.  R.  Q.  B.  350;  and  in  some  states;  State 
v.  Stone,  3  H.  &  McH.  (Md.)  115;  State  v. 
Hunt,  1  N.  J.  L  2S7;  People  v.  Vermilyea,  7 
Cow.  (N.  Y.)  141;  Com.  v.  McGinnis,  2 
Whart.  (Pa.)  117 ;  State  v.  Washington,  6  N. 
C.  100;  John  v.  State,  1  Ala.  95;  Kenney  v. 
State,  5  R.  I.  385;  the  writ  may  also  be 
issued  to  remove  criminal  causes  to  a  su- 
perior court;  Har.  Certiorari  8.  But  see 
Winn  v.  State,  10  Ohio  345.  It  also  lies 
where  a  probate  court  proceeds  without 
jurisdiction  in  admitting  a  claim  against  an 
estate;  Durham  v.  Field,  30  111.  App.  121; 
or  where  the  court  has  jurisdiction  but 
makes  an  order  exceeding  its  power ;  State 
v.  County  Court,  45  Mo.  App.  387.  It  is 
also  given  by  statute  to  review  the  acts  and 
powers  of  official  boards  and  officers ;  Haven 
v.  County  Com'rs,  155  Mass.  467,  29  N.  E. 
1083 ;  State  v.  City  of  Ashland,  71  Wis.  502, 
37  N.  W.  809. 

The  writ  has  been  used  to  review  the 
proceedings  of  courts-martial;  Rathbun  v. 
Sawyer,  15  Wend.  (N.  Y.)  451;  of  canal  ap- 
praisers charged  with  acting  without  no- 
tice; Fonda  v.  Canal  Appraisers,  1  Wend. 
(N.  Y.)  288;  of  commissioners  of  appeal  in 
cases  of  taxation;  State  v.  Falkinburge,  15 
N.  J.  L.  320;  of  commissioners  of  highways; 
Lawton  v.  Com'rs  of  Highways,  2  Cal.  (N. 
Y.)  179;  or  where  a  void  order  was  made  by 
them;  Fitch  v.  Com'rs  of  Highways,  22 
Wend.  (N.  Y.)  132 ;  a  municipal  assessment 
for  a  local  improvement  departing  essential- 
ly from  the  statutory  method ;  People  v. 
Rochester,  21  Barb.  (N.  Y.)  656;  common 
council  of  a  city  in  laying  out  a  new  street ; 
State  v.  City  of  Fond  du  Lac,  42  Wis.  287. 
It  has  also  been  issued  upon  the  refusal 
to  grant  a  writ  of  habeas  corpus  on  the 
ground  of  want  of  jurisdiction;  People  v. 
Mayer,  16  Barb.  (N.  Y.)  362;  and  upon  the 
discharge  of  a  complaint  under  the  act 
abolishing  imprisonment  for  debt  on  the 
ground  of  want  of  proof;  Learned  v.  Duval, 
3  Johns.  Cas.  (N.  Y.)  141.  It  may  issue  at 
the  suit  of  a  taxpayer  and  voter  to  test  the 
legality  of  an  act  uniting  highway  districts 
by  the  trustees  of  the  township;  Dunham  v. 
Fox,  100  la.  131,  69  N.  W.  436. 

The  supreme  court  may  issue  writs  of  cer- 
tiorari in  all  proper  cases,  and  will  do  so 
when  the  circumstances  imperatively  de- 
mand that  form  of  interposition,  to  correct 
excesses  of  jurisdiction,  and  in  furtherance 


of  justice.     In  re  Chetwood,  165  U.   S.  443, 
17  Sup.  Ct.  3S5,  41  L.  Ed.  782. 

To  warrant  a  certiorari,  the  act  must  be 
plainly  judicial  and  not  executive  or  leg- 
islative; People  v.  N.  Y.,  2  Hill  (N.  Y.)  14; 
accordingly  it  was  refused  in  case  of  a  cor- 
porate resolution  appropriating  land  for  a 
public  square;  id;  and  of  an  order  of  a 
board  of  health  adjudging  a  question  of  nui- 
sance ;   15  Wend.  255 ;   21  Barb.  656. 

It  is  used  also  as  an  auxiliary  process  to 
obtain  a  full  return  to  other  process,  as 
when,  for  example,  the  record  of  an  inferior 
court  is  brought  before  a  superior  court  by 
appeal,  writ  of  error,  or  other  lawful  mode, 
and  there  is  a  manifest  defect  or  sugges- 
tion of  diminution,  to  obtain  a  perfect  tran- 
script and  all  papers;  Stewart  v.  Ingle,  9 
Wheat.  (U.  S.)  526,  6  L.  Ed.  151;  Cojden  v. 
Knickerbacker,  2  Cow.  (N.  Y.)  38;  Stewart 
v.  Court  of  County  Com'rs,  82  Ala.  209,  24 
South.  270;  Smick  v.  Opdycke,  12  N.  J.  L. 
85 ;  Colerick  v.  Hooper,  3  Ind.  316,  56  Am. 
Dec.  505;  State  v.  Reid,  18  N.  C.  382,  28 
Am.  Dec.  572 ;  Thatcher  v.  Miller,  11  Mass. 
414;  Scott  v.  Hall,  2  Munf.  (Va.)  229;  Frank- 
lin Academy  v.  Hall,  16  B.  Monr.  (Ky.)  472 ; 
Carter  v.  Douglass,  2  Ala.  499;  Clements 
v.  Hahn,  1  Col.  490.  It  does  not  issue  as  a 
matter  of  right  on  mere  suggestion  of  de- 
fects in  the  record,  but  the  application  must 
be  supported  by  proof ;  State  v.  Orrick,  106 
Mo.  Ill,  17  S.  W.  176,  329. 

The  office  of  the  writs  of  certiorari  and  manda- 
mus is  often  much  the  same.  It  is  the  practice  of 
the  U.  S.  supreme  court,  upon  a  suggestion  of  any 
defect  in  the  transcript  of  the  record  sent  up  to 
that  court  upon  a  writ  of  error,  to  allow  a  special 
certiorari,  requiring  the  court  below  to  certify  more 
fully;  Fowler  v.  Lindsey,  3  Dall.  (U.  S.)  411,  1  L. 
Ed.  658;  Barton  v.  Petit,  7  Cra.  (U.  S.)  288,  3  L. 
Ed.  347;  Stimpson  v.  R.  Co.,  3  How.  (U.  S.)  553, 
11  L.  Ed.  722  ;  U.  S.  v.  Adams,  9  Wall.  (U.  S.)  661, 
19  L.  Ed.  808.  Relief  may  also  be  had  In  the  U.  S. 
Circuit  Court  of  Appeals  on  allegation  of  diminu- 
tion in  the  record  sent  up  from  the  circuit  court, 
as  provided  by  rule  18  ;  Blanks  v.  Klein,  49  Fed.  1, 
1  C.  C.  A.  254.  The  same  result  might  also  be  ef- 
fected by  a  writ  of  mandamus.  The  two  remedies 
are,  when  addressed  to  an  inferior  court  of  record, 
from  a  superior  court,  requiring  the  return  of  a 
record,  much  the  same.  But  where  diminution  of 
the  record  is  suggested  in  the  inferior  court,  and 
the  purpose  is  to  obtain  a  more  perfect  record,  and 
not  merely  a  more  perfect  copy  or  transcript,  it  is 
believed  that  the  writ  of  mandamus  is  the  appro- 
priate  remedy. 

In  many  of  the  states,  the  writ  produces  the 
same  result  in  proceedings  given  by  statute,  such 
as  the  proceedings  for  obtaining  damages  under 
the  mill  acts,  highway  acts,  pauper  laws,  etc.,  as 
the  writ  of  error  does  when  the  proceedings  are 
according  to  the  course  of  the  common  law.  Where 
the  lower  court  is  to  be  required  to  proceed  in  a 
cause,  a  writ  of  procedendo  or  mandamus  is  the 
proper  remedy. 

The  writ  is  generally  said  to  issue  only 
after  final  judgment  of  the  inferior  court  or 
tribunal  whose  proceedings  are  to  be  re- 
viewed; Patterson  v.  United  States,  2 
Wheat.  (XJ.  S.)  221,  4  L.  Ed.  224 ;  People  v. 
Railroad  Com'rs,  160  N.  Y.  202,"  54  N.  E. 
697;  Lynde  v.  Noble,  20  Johns.   (N.  Y.)  80; 


CERTIORARI 


445 


CERTIORARI 


Wallace  v.  Jameson,  179  Pa.  94,  36  Atl.  145 ; 
Case  of  Road  from  Bough  Street,  2  S.  & 
R.  419;  Vaughn  v.  Marshall,  1  Iloust.  (Del.) 
348 ;  Stewart  v.  State,  98  Ga.  202,  25  S.  E. 
424 ;  Meads  v.  Copper  Mines,  125  Mich.  45G, 
81  N.  W.  015;  People  v.  Lindsay,  1  Idaho, 
401 ;  State  v.  Valliant,  123  Mo.  524,  27  S.  W. 
379,  2S  S.  W.  5SG;  State  v.  Gill.  137  Mo. 
027,  :;9  S\  W.  81 ;  Glennon  v.  Burton,  144 
111.  ."."I,  33  X.  E.  23;  Gauld  v.  Board  of 
Sup'rs,  122  Cal.  18,  54  Pac.  272 ;  Culver  v. 
Travis.  L08  Mich.  640,  GG  X.  W.  575;  where 
the  reason  for  the  rule  is  thus  stated:  "The 
writ  of  certiorari  is  a  writ  of  review.  Its 
office  is  to  bring  up  for  review  final  deter- 
minations and  adjudications  of  inferior  tri- 
bunals, boards  or  officers  exercising  judicial 
functions,  where  there  is  no  appeal,  nor  any 
plain,  speedy  and  adequate  remedy.  The 
writ  is  necessarily  founded  on  a  final  deter- 
mination. Were  the  rule  otherwise  a  writ 
might  issue  at  any  step  in  the  proceedings  of 
the  inferior  tribunal,  although  such  tribunal 
might,  were  the  point  presented,  decide  that 
It  had  no  jurisdiction  in  the  matter  submit- 
ted to  it.  This  would  be  the  exercise  of 
original  jurisdiction  by  the  court  issuing  the 
writ  and  not  a  review  of  the  determination 
of  the  inferior  tribunal.  The  matter  com- 
plained of  would  be,  not  that  the  tribunal 
had  exceeded,  but  that  it  was  about  to  ex- 
ceed, its  jurisdiction."  As  the  writ  relates 
back  to  the  first  day  of  the  term,  it  will  not 
issue  to  review  a  case  not  pending  at  that 
time;  .Womer  v.  R.  Co.,  37  W.  Va.  2S7,  1G 
S.  E.  488. 

The  English  rule  is  different  in  civil  cases, 
and  the  writ  is  usually  issued  before  the 
final  determination;  7  D.  &  R.  7G9;  13  L. 
J.  Q.  B.  149 ;  8  Ont  L.  J.  277;  2  Ont.  L.  J. 
N.  S.  277 ;  3  U.  C.  Q.  B.  O.  S.  149.  In  one 
state  at  least  it  is  held  that  the  writ  may 
issue,  in  the  case  of  municipal  corporations. 
before  final  decision ;  State  v.  City  Council 
of  Camden,  47  N.  J.  L.  64,  54  Am.  Rep.  117. 

Under  the  act  of  March  2,  1833,  provid- 
ing for  the  removal  by  certiorari  of  suits 
in  state  courts  against  revenue  officers,  the 
writ  from  the  United  States  circuit  court 
to  a  state  court  will  stay  all  proceedings; 
State  v.  Circuit  Judge,  33  Wis.  127.  And 
under  the  removal  act  of  1875,  if  the  state 
court  decides  to  retain  jurisdiction  in  a 
removable  case,  a  certiorari  may  be  resorted 
to  to  obtain  a  transfer  of  the  record ;  U.  S.  R. 
S.  1  Supp.  84. 

It  does  not  lie  to  enable  the  superior  court 
to  revise  a  decision  upon  matters  of  fact : 
People  v.  Board  of  Fire  Com'rs,  100  N.  Y. 
82,  2  N.  E.  613;  Appeal  of  Yeager,  34  Pa. 
176 ;  Beach  v.  Mullin,  34  N.  J.  L.  343  ;  Farm- 
ington  River  Water  Power  Co.  v.  County 
Com'rs,  112  Mass.  206;  Lapan  v.  Cumber- 
land County  Com'rs,  65  Me.  160;  Low  v.  R. 
Co.,  18  111.  324 ;  Frederick  v.  Clark,  5  Wis. 
191;    Central  Pac.  R.  Co.  v.  Placer  County. 


46  Cal.  6G7;  Farmers'  &  Merchants'  Bank  v. 
Board  of  Equalization,  97  Cal.  318,  32  Pac. 
312;  Xorth  &  South  St.  K.  Co.  v.  Spullnek. 
SS  Ga.  283,  14  S.  E.  478  ;  Herbert  v.  Curtis, 
55  X.  J.  L.  87,  25  Atl.  Whitford, 

54  Wis.  150,  11  X.  W.  421;  Shearoua  v. 
Morgan,  11 1  Ga.  B58,  36  S.  E.  927;  St 
Judge,  41  La.  Ann.  179,  6  South.  18;  noi 
matters  resting  in  the  discretion  of  the  judge 
of  the  inferior  court ;  Inhabitants  of  New 
Marlborough  v.  County  Com'rs.  9  Mete. 
(Mass.)  123;  Boston  v.  Morris.  25  X.  J.  L. 
173;  Brown  v.  Board  of  Sup'rs,  124  CaL  271. 
57  Pac.  82;  State  v.  Judge,  43  La.  Ann. 
825,  9  South.  (539;  People  v.  Board  of  Fire 
Com'rs.  82  X.  Y.  358;  Hall  v.  Oyster,  168 
Pa.  390.  31  Atl.  1007;  Sunberg  v.  Li 
Court  of  Linn  County,  61  la.  597.  16  X.  W. 
724;  Huffaker  v.  Boring,  8  Ala.  87;  M 
of  Saline  County  Subscription,  45  M< 
100  Am.  Dec.  337;  3  El.  &  Bl.  529;  8  Ont 
651,  12  Can.  Sup.  Ct.  Ill;  29  Nova  Scotia 
521;  unless  by  special  statute;  Starr  v. 
Trustees  of  Village  of  Rochester,  6  Wend. 
(X.  Y.)  564;  In  re  Hayward,  10  Pick.  (Mass.i 
35S ;  Independence  v.  l'ompton,  9  N.  J.  L. 
209 ;  or  where  palpable  injustice  has  been 
done;  Duggen  v.  McGruder,  Walk.  (Miss.i 
112,  12  Am.  Dec.  527;  Fonda  v.  Canal  Ap- 
praisers, 1  Wend.  (X.  Y.)  288:  Com.  v. 
Coombs,  2  Mass.  4S9 ;  State  v.  Smith,  101 
Mo.  174,  14  S.  W.  108;  Bostick  v.  Palmer, 
79  Ga.  680,  4  S.  E.  319;  Lapan  v.  County 
Com'rs,  65  Me.  160;  Ex  parte  Schmidt,  24 
S.  C.  363. 

It  does  not  lie  where  the  errors  are  formal 
merely,  and  not  substantial;  8  Ad.  &  E.  413 ; 
Patrick  v.  McKernon,  5  How.  (Miss.)  578; 
Furbush  v.  Cunningham,  56  Me.  1S4;  Her- 
mann v.  Butler,  59  111.  225 ;  nor  where  sub- 
stantial justice  has  been  done  though  the 
proceedings  were  informal ;  Criswell  v. 
Richter,  13  Tex.  18;  Knapp  v.  Hell< 
Wis.  467;  City  of  Charlestown  v.  Mid- 
dlesex County  Com'rs,  109  Mass.  270;  Hy- 
slop  v.  Finch,  99  111.  171 ;  State  v.  Kemen, 
61  Wis.  494,  21  N.  W.  530;  nox  where  the 
proceedings  are  not  void  on  their  face  and 
show  no  arbitrary  action  on  the  part  of  the 
trial  judge:  Williams  v.  District  Court,  45 
La.  Ann.   1295,  14  South.  57. 

Under  the  statute  authorizing  all  writs 
not  specifically  provided  for  the  federal 
courts  have  power  to  issue  writs  of  certio- 
rari in  proper  cases;  American  Construction 
Co.  v.  R.  Co.,  148  U.  S.  372.  13  Sup.  CI 
37  L.  Ed.  4SG;  In  re  Tampa  Suburban  R. 
Co.,  168  U.  S.  5S3,  IS  Sup.  Ct.  177,  -12  I 
589. 

Certiorari  will  not  lie  as  a  substitute  for 
an  appeal  from  an  interlocutory  order  of  a 
superior  court;  Guilford  County  v.  Georgia 
Co.,  109  X.  C.  310,  13  S.  E.  861 ;  nor  to  re- 
view an  appealable  order ;  In  re  McConnell, 
74  Cal.  217,  15  Atl.  740.  The  evidence  can- 
not   be   reviewed   upon  certiorari;    Com.    v. 


CERTIORARI 


446 


CERTIORARI 


Gillespie,  146  Pa.  546,  23  Atl.  393;  nor  rul- 
ings on  the  admission  of  evidence ;  Lord  v. 
Wirt,  96  Mich.  415,  56  N.  W.  7. 

The  court  may  deal  only  with  questions  of 
law  and  cannot  say  what  the  court  should 
have  done  if  the  facts  had  been  different; 
Beach  v.  Mullin,  34  N.  J.  L.  343 ;  Inhabitants 
of  Plymouth  v.  Plymouth  County  Com'rs,  16 
Gray  (Mass.)  341 ;  nor  can  it  determine  ques- 
tions of  fact  depending  on  evidence  arising 
outside  of  tbe  record ;  Hayford  v.  City  of 
Bangor,  102  Me.  340,  66  Atl.  731,  11  L.  R.  A. 
(N.  S.)  940 ;  nor  are  such  facts  to  be  consid- 
ered in  determining  the  propriety  of  the 
writ;  U.  S.  Standard  Voting  Machine  Co.  v. 
Hobson,  132  la.  38,  109  N.  W.  458,  7  L.  R.  A. 
(N.  S.)  512,  119  Am.  St.  Rep.  539,  10  Ann. 
Cas.  972.  The  evidence  forms  no  part  of  the 
record,  and  in  the  absence  of  anything  in  the 
record  to  establish  the  contrary,  it  will  be 
presumed  that  the  evidence  was  sufficient  to 
sustain  the  finding ;  De  Rochebrune  v.  South- 
erner, 12  Minn.  7S  (Gil.  42) ;  People  v.  Daw- 
ell,  25  Mich.  251,  12  Am.  Rep.  260 ;  whatever 
the  evidence  tended  to  show  is  treated  as 
proved;  id. 

Certiorari  may  issue  in  criminal  cases  in 
aid  of  habeas  corpus  to  review  proceedings 
before  a  commissioner  on  commitments;  In 
re  Martin,  5  Blatchf.  303,  Fed.  Cas.  No.  9,151 
(but  not  to  review  his  decision  on  the  facts; 
In  re  Stupp,  12  Blatchf.  501,  Fed.  Cas.  No. 
13,563) ;  or  to  the  circuit  court  to  ascertain 
from  its  proceedings  whether  that  court  has 
exceeded  its  authority ;  Ex  parte  Lange,  18 
Wall.  (U.  S.)  163,  21  L.  Ed.  872  (citing  the 
prior  cases) ;  Ex  parte  Virginia,  100  U.  S. 
343;  25  L.  Ed.  676;  State  v.  Johnson,  103 
Wis.  625,  79  N.  W.  1081,  51  L.  R.  A.  33. 

A  court  of  exclusively  appellate  jurisdic- 
tion cannot  issue  a  certiorari  to  pass  over  an 
intermediate  appellate  court ;  Carr  v.  Twee- 
dy, Hempst  287,  Fed.  Cas.  No.  2,440a.  The 
common  law  writ  does  not  lie  with  respect 
to  proceedings  subsequent  to  appeal  or  writ 
of  error ;  U.  S.  v.  Young,  94  U.  S.  258,  24  L. 
Ed.  153. 

It  is  granted  or  refused  in  the  discretion 
of  the  superior  court;  Lees  v.  Childs,  17 
Mass.  352;  Huse  v.  Grimes,  2  N.  H.  210; 
People  v.  McCarthy,  102  N.  Y.  642,  8  N.  E. 
85 ;  State  v.  Blauvett,  34  N.  J.  L.  261 ;  Free- 
man v.  Oldham's  Lessee,  4  T.  B.  Monr.  (Ky.) 
420;  Flourney  v.  Payne,  28  Ark.  87;  West 
River  Bridge  Co.  v.  Dix,  16  Vt.  446;  Liv- 
ingston v.  Livingston,  24  Ga.  379 ;  L.  R.  5  Q. 
B.  466;  Welch  v.  County  Court,  29  W.  Va. 
63,  1  S.  E.  337;  Ex  parte  Hitz,  111  U.  S. 
766,  4  Sup.  Ct.  698,  28  L.  Ed.  592 ;  Board  of 
Supervisors  v.  Magoon,  109  111.  142 ;  and  the 
application  must  disclose  a  proper  case  upon 
its  face;  8  Ad.  &  E.  43;  Lees  v.  Childs,  17 
Mass.  351;  Cullen  v.  Lowery,  2  Harr.  (Del.) 
459;  Willis  v.  Dun,  Wright  (Ohio)  130; 
Hartsfield  v.  Jones,  49  N.  C.  309;  Redmond 
v.  Anderson,  18  Ark.  449 ;   Russell  v.  Picker- 


ing, 17   111.  31;    Mays  v.   Lewis^,  4  Tex.  1; 
McMurray  v.  Milan,  2  Swan  (Tenn.)  176. 

As  stated  supra,  tbe  doctrine  that  certio- 
rari will  not  lie  where  there  is  an  appeal  is 
characterized  as  "the  rule"  to  that  effect. 
That  this  is  too  broad  a  generalization  will 
readily  appear  from  an  examination  of  the 
numerous  cases,  which  are  collected  in  a  very 
full  note  on  "Exceptions  to  the  Rule"  in  50 
L.  R.  A.  787.  The  note  is  appended  to  two 
cases  in  the  same  court,  each  decided  by  a 
divided  court,  which  will  illustrate  the  diffi- 
culty of  the  question.  In  one  it  was  stated 
as  the  general  rule  that  certiorari  will  not 
lie  to  correct  mere  errors  of  a  tribunal  hav- 
ing jurisdiction,  in  the  rightful  exercise  of 
■that  jurisdiction,  where  there  is  an  appeal 
by  means  of  which  those  errors  may  be  cor- 
rected; State  v.  Shelton,  154  Mo.  670,  55  S. 
W.  1008,  50  L.  R.  A.  798.  In  the  other  case 
it  was  said  that  that  statement  of  the  law 
was  too  broad,  and  that,  to  bar  the  writ,  the 
remedy  by  appeal  must  be  adequate  to  meet 
the  necessities  of  the  case  and  must  be  equal- 
ly beneficial,  speedy  and  sufficient;  State  v. 
Guinotte,  156  Mo.  513,  57  S.  W.  281,  50  L.  R. 
A.  787.  It  is  doubtful  if  a  general  rule  can 
be  formulated  to  apply  to  all  cases,  and,  with 
reference  to  any  given  state  of  the  facts,  the 
authorities  must  be  critically  examined.  It 
may  however  be  said  that  it  should  not  issue 
where  there  is  another  adequate  remedy ; 
People  v.  Board  of  Health,  140  N.  Y.  1,  35 
N.  E.  320,  23  L.  R.  A.  481,  37  Am.  St.  Rep. 
522;  In  re  Randall,  11  Allen  (Mass.)  472; 
State  v.  Probate  Court,  72  Minn.  434,  75  N. 
W.  700 ;  Oyster  v.  Bank,  107  la.  39,  77  N.  W. 
523;  Ex  parte  Howard-Harrison  Iron  Co., 
130  Ala.  185,  30  South.  400;  In  re  Tampa 
Suburban  R.  Co.,  168  U.  S.  583,  18  Sup.  Ct 
177,  42  L.  Ed.  589 ;  Watson  v.  City  of  Plain- 
field,  60  N.  J.  L.  260,  37  Atl.  615;  Kern's 
Adm'r  v.  Foster,  16  Ohio,  274;  9  Ad.  &  El. 
540 ;  33  N.  Brunsw.  80  ;  20  Nova  Scotia  283 ; 
17  Quebec  Super.  Ct  383.  And  though  as 
stated  by  Bacon  (supra)  it  may  issue  out  of 
chancery,  it  cannot  be  used  for  the  review 
of  decrees  in  equity  alleged  to  be  void  for 
want  of  power;  In  re  Tampa  Suburban  R. 
Co.,  168  U.  S.  583,  18  Sup.  Ct.  177,  42  L.  Ed. 
589 ;  In  re  Haney,  14  Wis.  417 ;  Gilliland  v. 
Sellers'  Adm'rs,  2  Ohio  St.  223;  "nor  can 
certiorari  be  made  to  operate  as  an  injunc- 
tion, and  restrain  a  tribunal  from  acting  be- 
yond its  jurisdiction,  however  well  grounded 
may  be  the  apprehension  in  that  respect;" 
Glennon  v.  Burton,  144  111.  551,  33  N.  E.  23. 

The  common  law  remedy  has  been  success- 
fully invoked  where  statutes  provided  that 
the  decision  of  the  inferior  tribunal  should  be 
final  and  conclusive,  upon  the  theory  that  it 
is  an  inherent  part  of  the  judicial  power  of 
the  superior  court  and  cannot  be  taken  away 
without  express  negative  words;  Murfree  v. 
Leeper,  1  Overt  (Tenn.) ;  Ritter  v.  Kunkle, 
39  N.  J.  L.  259 ;   and  even  where  the  statute 


CERTIORARI 


447 


CERTIORARI 


directed  that  no  certiorari  should  issue  to  re- 
move proceediugs  had  in  pursuance  of  it,  the 
writ  may  be  used  to  ascertain  whether  the 
proceedings  have  been  invoked  in  pretence 
of  the  statutory  authority  and  are  therefore 
not  in  pursuance,  but  in  derogation,  of  it; 
Ackerman  v.  Taylor,  8  N.  J.  L.  305;  14.,  9 
N.  J.  L.  65.  Possibly  the  New  York  Court  of 
Appeals  may  have  come  near  to  the  formula- 
tion of  a  general  rule  in  saying  that  a  com- 
mon law  certiorari  can  only  be  availed  of  to 
review  when  there  is  no  other  adequate  rem- 
edy;  in  other  cases  it  will  be  confined  to  its 
original  and  appropriate  office,  to  enable  a 
court  of  review  to  determine  whether  the  in- 
ferior tribunal  proceeded  within  its  jurisdic- 
tion ;  People  v.  Betts,  55  N.  Y.  GOO,  which  is 
cited  in  Harris  v.  Barber,  129  U.  S.  371,  9 
Sup.  Ct.  314,  32  L.  Ed.  G!)7,  and  the  language 
of  which  is  quoted  in  People  v.  Feitner,  51 
App.  Div.  196,  61  N.  Y.  Supp.  675.  The  last 
case  was  a  certiorari  to  the  secretary  of 
state  for  granting  a  charter  for  a  name 
claimed  to  be  already  in  use.  The  court 
quashed  the  writ,  saying  that  the  existing 
company  had  a  remedy  in  equity,  but  if  the 
charter  had  been  refused  there  might  be  no 
other  remedy. 

The  judgment  is  either  that  the  proceed- 
ings below  be  quashed  or  that  they  be  af- 
firmed ;  Har.  Certiorari  38,  1!) ;  Marshall  v. 
Hill,  8  Yerg.  (Tenn.)  102 ;  Kincaid  v.  Smith, 
id.  218;  Com.  v.  Turnpike  Corporation,  5 
Mass.  423;  Hall  v.  State,  12  G.  &  J.  (Md.) 
329;  Weigand  v.  Malatesta,  6  Coldw.  (Tenn.) 
362;  see  McAllilley  v.  Horton,  75  Ala.  491; 
Hamilton  v.  Harwood,  113  111.  154;  Taylor 
v.  (Jay,  20  Ga.  77;  Bandlow  v.  Thieme,  53 
Wis.  57,  9  N.  W.  920;  either  wholly  or  in 
part;  Com.  v.  Turnpike  Corp.  5  Mass.  420; 
NIchol  v.  Patterson,  4  Ohio  200 ;  Bronson  v. 
Mann,  13  Johns.  (N.  Y.)  461.  See,  also,  Beck 
v.  Knabb,  1  Overt  (Tenn.)  5S ;  Henry  v.  Her- 
itage, 3  N.  C.  38.  The  costs  are  discretion- 
ary with  the  court;  Myers  v.  Town  of  Pow- 
nal,  16  VL  426 ;  Chance  v.  Haley,  6  Ind.  367 ; 
but  at  common  law  neither  party  recovers 
costs;  Low  v.  Rogers,  8  Johns.  (N.  Y.)  321; 
Com.  v.  Ellis,  11  Mass.  465 ;   State  v.  Leavitt, 

3  N.  H.  44 ;  Nichol  v.  Patterson,  4  Ohio  200 ; 
and  the  matter  is  regulated  by  statute  in 
some  states ;  Atkinson  v.  Crossland,  4  Watts 
(Pa.)  451;  Hinchman  v.  Cook,  20  N.  J.  L. 
271.     See  Mandamus;    Procedendo.    Consult 

4  Bla.  Com.  262,  265. 

By  the  act  of  congress  of  March  3,  1891, 
establishing  circuit  courts  of  appeal,  §  6,  it 
is  provided  that  in  any  case  in  which  the 
decision  of  that  court  is  final  a  certiorari 
may  issue  from  the  supreme  court  to  bring 
up  the  record  to  that  court  for  "its  review 
and  determination  with  the  same  power  and 
authority  in  the  case  as  if  it  had  been  car- 
ried by  appeal  or  writ  of  error  to  the  Su- 
preme Court,"  1  U.  S.  Comp.  Stat.  550.  At 
the  first  term  of  the  supreme  court  after  the 


passage  of  this  act,  upon  an  application  for 
a  certiorari,  it  was  said  that  "it  is  evident 
that  it  is  solely  questions  of  gravity  and  im- 
portance" that  should  be  certified  up  to  the 
supreme  court  either  by  the  action  of  the  cir- 
cuit courts  of  appeals  or  by  requirement  of 
the   supreme   court    upon    ■  I  n    re 

Lau  Ow  Bew,  141   Q.  S.  583,  12   5 
35  L.   Ed.  868,  where  although  it  was   said 
the  jurisdiction  should  be  exercised  spi 
ly  and  with  great  caution,  the  writ  v. 
sued  to  determine  the  effect  of  the  CI 
exclusion    acts.      The    rule   thus   early    laid 
down  was  reiterated  in   several   sul  s 
cases  illustrating  what  the  court  considered 
cases  of  sufficient  "gravity  and  importance." 

"While  the  power  is  coextensive  with  all 
possible  necessities  and  sufficient  to  secure  to 
this  court  a  final  control  over  the  litigation 
in  all  the  courts  of  appeal,  it  is  a  power 
which  will  be  sparingly  exercised,  and  only 
where  the  circumstances  of  the  case  satisfy 
us  |  that  the  importance  of  the  question  in- 
volved, the  necessity  of  avoiding  conflict  be- 
tween two  or  more  courts  of  appeal,  or  be- 
tween courts  of  appeal  and  the  courts  of  a 
state,  or  some  matter  affecting  the  interests 
of  the  nation  in  its  internal  or  external  re- 
lations demands  such  exercise."  Forsyth  v. 
Hammond,  166  U.  S.  506,  17  Sup.  Ct  665,  41 
L.  Ed.  1095. 

It  was  held  that  a  case  which  could  other- 
wise be  finally  determined  by  that  court 
may,  under  the  statute,  be  removed  from  the 
circuit  court  of  appeals  on  certiorari  at  any 
time  during  its  pendency  there;  but  where 
there  is  merely  private  interest  involved  it 
will  not  be  done  where  there  has  been  no 
final  judgment;  id.,  citing  to  this  express 
point  Chicago  &  N.  W.  Ry.  Co.  v.  Osborne, 
146  U.  S.  354,  13  Sup.  Ct.  281.  36  L.  Ed. 
1002,  which  is  sometimes  incorrectly  referred 
to  as  holding  that  the  Supreme  Court  has  no 
power  to  remove  by  certiorari  before  final 
judgment  While  the  supreme  court  may  re- 
quire a  case  to  be  certified  up  at  any  stage, 
particularly  when  the  question  of  jurisdic- 
tion is  involved,  it  should  not  be  done  to  re- 
view an  interlocutory  decree  "unless  it  is 
necessary  to  prevent  extraordinary  inconven- 
ience and  embarrassment  in  the  conduct  of 
the  cause";  American  Const  Co.  v.  Ry.  Co., 
148  U.  S.  372,  13  Sup.  Ct.  15S.  37  L.  Ed.  4S6. 
The  writ  may  issue  after  the  mandate  has 
gone  down  from  the  circuit  court  of  ap] 
The  Conqueror,  166  D.  S.  110,  17  Sup.  Ct 
510,  41  L.  Ed.  937.  It  may  issue  to  an  infe- 
rior state  court  when  the  highest  state  court 
has  refused  jurisdiction  ;  Western  Union  Tel- 
egraph Co.  v.  Hughes,  203  U.  S.  505,  l:t  Sup. 
Ct.  162,  51  L.  Ed.  21)1. 

The  decisions  Upon  applications  for  this 
writ  indicate  the  construction  which  it  has 
placed  upon  the  phrase  used  by  it  in  the  first 
case,  "questions  of  gravity  and  importance." 
These   words  are  evidently  applied  only   to 


CERTIORARI 


448 


CERTIORARI 


cases  of  public  and  not  private  interest  and 
importance.  For  example,  the  writ  was  is- 
sued to  settle  the  construction  of  a  treaty 
and  immigration  laws;  The  Three  Friends, 
166  U.  S.  1,  17  Sup.  Ct.  495,  41  L.  Ed.  897; 
to  review  a  case  of  habeas  corpus  finally  de- 
termined by  the  circuit  court  of  appeals ; 
Lau  Ow  Bew  v.  U.  S.,  144  U.  S.  47,  12  Sup. 
Ct.  517.  36  L.  Ed.  340 ;  to  settle  questions  of 
jurisdiction  of  the  bankruptcy  court;  Muel- 
ler v.  Nugent,  184  U.  S.  1,  22  Sup.  Ct.  269, 
46  L.  Ed.  405 ;  Louisville  Trust  Co.  v.  Com- 
ingor,  184  U.  S.  18,  22  Sup.  Ct.  293,  46  L.  Ed. 
413 ;  to  secure  a  uniform  construction  of  the 
bankruptcy  act;  Holden  v.  Stratton,  191  U. 
S.  115,  24  Sup.  Ct.  45,  48  L.  Ed.  116 ;  or  of 
a  tariff  act;  The  Conqueror,  166  U.  S.  110, 
17  Sup.  Ct.  510,  41  L.  Ed.  937 ;  to  determine 
whether  a  judge  who  made  an  order  was 
disqualified  to  sit  in  the  circuit  court  of  ap- 
peals on  the  review  of  it;  American  Const. 
Co.  v.  Ry.  Co.,  148  U.  S.  372,  13  Sup.  Ct.  158, 
37  L.  Ed.  4S6 ;  to  prevent  conflict  of  decision 
between  federal  and  state  courts  within  the 
same  territorial  jurisdiction  ;  Forsyth  v.  Ham- 
mond, 166  U.  S.  506,  17  Sup.  Ct.  665,  41  L. 
Ed.  1095 ;  to  avoid  a  possible  question  of  ju- 
risdiction upon  a  writ  of  error ;  Montana 
Min.  Co.  v.  Min.  Co.,  204  TJ.  S.  204,  27  Sup. 
Ct.  254,  51  L.  Ed.  444 ;  and  when  there  have 
been  conflicting  decisions  of  different  circuit 
courts  of  appeals;  Expanded  Metal  Co.  v. 
Bradford,  214  U.  S.  366,  29  Sup.  Ct  652,  53 
L.  Ed.  1034. 

i  On  the  other  hand  the  writ  has  been  re- 
fused where  the  court  of  appeals  has  revers- 
ed proceedings  putting  a  railroad  company  in 
the  hands  of  a  receiver;  American  Const. 
Co.  v.  Ry.  Co.,  148  TJ.  S.  372,  13  Sup.  Ct.  158, 
37  L.  Ed.  486;  where  questions  of  the  state 
law  of  res  judicata  and  of  master  and  serv- 
ant were  considered  not  of  sufficient  "gravity 
and  general  importance" ;  In  re  Woods,  143 
U.  S.  202,  12  Sup.  Ct  417,  36  L.  Ed.  125 ;  in 
a  case  of  where  the  circuit  court  of  appeals 
was  found  to  have  no  jurisdiction,  and  had 
rendered  no  decision  except  to  certify  that 
question ;  Good  Shot  v.  U.  S.,  179  U.  S.  87, 
21  Sup.  Ct.  33,,45  L.  Ed.  101;  or  where  the 
issue  is  a  mere  technicality  and  the  essential 
rights  of  the  parties  are  not  involved ;  Smith 
v.  Vulcan  Iron  Works,  165  U.  S.  518,  17  Sup. 
Ct.  407,  41  L.  Ed.  810. 

While  under  section  6  of  the  Circuit  Court 
of  Appeals  Act  certiorari  can  only  be  issued 
when  a  writ  of  error  cannot  lie,  it  will  not 
be  issued  merely  because  the  writ  of  error 
will  not  lie,  but  only  where  the  case  is  one 
of  gravity,  or  where  there  is  conflict  between 
decisions  of  state  and  federal  courts  or  be- 
tween federal  courts  of  different  circuits,  or 
something  affecting  the  relations  of  this  na- 
tion with  foreign  nations  or  of  general  in- 
terest to  the  public;  Fields  v.  U.  S.,  205  U. 
S.  292,  27  Sup.  Ct.  543,  51  L.  Ed.  807. 

A  certiorari  may  be  allowed  when  a  case 


has  been  improperly  brought  up  on  a  writ  of 
error  and  the  record  filed  in  the  latter  may 
be  treated  as  a  proper  return ;  Security 
Trust  Co.  v.  Dent,  187  TJ.  S.  237,  23  Sup.  Ct 
61,  47  L.  Ed.  158.  When  a  case  is  removed 
to  it  under  the  act  of  1891,  the  entire  record 
is  before  the  supreme  court,  which  has  power 
to  decide  the  case;  Lutcher  &  Moore  Lum- 
ber Co.  v.  Knight,  217  TJ.  S.  257,  30  Sup.  Ct 
505,  54  L.  Ed.  757. 

See  United  States  Courts  ;  Bill  of  Cer- 
tiorari. 

CERTIORARI  FACIAS.  Cause  to  be  cer- 
tified.   The  command  of  a  writ  of  certiorari. 

CERVISARII  (cervisia,  ale).  Among  the 
Saxons,  tenants  who  were  bound  to  supply 
drink  for  their  lord's  table.    Cowell. 

CERVISIA.  Ale.  Cervisarius.  An  ale- 
brewer;   an  ale-house  keeper.    Cowell. 

CESI0NARI0.  In  Spanish  Law.  An  as- 
signee.   White,  New  Recop.  304. 

CESSAVIT  PER  BIENNIUM  (Lat  he  has 
ceased  for  two  years).  An  obsolete  writ, 
which  could  formerly  have  been  sued  out 
when  the  defendant  had  for  two  years  ceased 
or  neglected  to  perform  such  service  or  to 
pay  such  rent  as  he  was  bound  to  do  by  his 
tenure,  and  had  not  upon  his  lands  sufficient 
goods  or  chattels  to  be  distrained.  Fitzh. 
N.  B.  208.  It  also  lay  where  a  religious 
house  held  lands  on  condition  of  performing 
certain  spiritual  services  which  it  failed  to 
do.    3  Bla.  Com.  232. 

CESSET  EXECUTI0  (Lat  let  execution 
stay).  The  formal  order  for  a  stay  of  exe- 
cution, when  proceedings  in  court  were  con- 
ducted in  Latin.     See  Execution. 

CESSET  PROCESSUS  (Lat.  let  process 
stay).  The  formal  order  for  a  stay  of  pro- 
cess or  proceedings,  when  the  proceedings  in 
court  were  conducted  in  Latin.  See  2  Dougl. 
627;    11  Mod.  231. 

CESSI0  BONO  RUM  (Lat  a  transfer  of 
property).  In  Civil  Law.  An  assignment  of 
his  property  by  a  debtor  for  the  benefit  of 
his  creditors. 

Such  an  assignment  discharged  the  debtor 
to  the  extent  of  the  property  ceded  only,  but 
exempted  him  from  imprisonment.  Dig. 
2.  4.  25;  48.  19.  1;  Nov.  4.  3.  See  La.  Civ. 
Code  2166;  Golis  v.  His  Creditors,  2  Mart 
N.  S.  (La.)  108;  Richards  v.  His  Creditors, 
5  Mart.  N.  S.  (La.)  299;  Sturges  v.  Crownin- 
shield,  4  Wheat.  (U.  S.)  122,  4  L.  Ed.  529 ;  1 
Kent  422. 

CESSION  (Lat.  cessio,  a  transfer).  In 
Civil  Law.  An  assignment.  The  act  by 
which  a  party  transfers  property  to  anoth- 
er.    See  Cessio  Bonorum. 

In  Ecclesiastical  Law.  A  surrender.  When 
an  ecclesiastic  is  created  bishop,  or  when 
a  parson  takes  another  benefice,  without  dis- 


CESSION 


449 


CESTUI  QUE  TRUST 


pensation,  the  first  benefice  becomes  void  by 
a  legal  cession  or  surrender.     Cowell. 

In  Government  Law.  The  transfer  of  land 
by  one  government  to  another. 

France  ceded  Louisiana  to  the  United 
States,  by  the  treaty  of  Paris,  of  April  30, 
1803 ;  Spain  made  a  cession  of  East  and 
West  Florida,  by  the  treaty  of  Feb.  22,  1819. 
Cessions  have  been  severally  made  to  the 
general  government  of  a  part  of  their  terri- 
tory by  New  York,  Virginia,  Massachusetts, 
Connecticut,  South  Carolina,  North  Carolina, 
and  Georgia.  See  Gordon,  Dig.  art.  2236- 
2250. 

It  is  the  usage  of  civilized  nations,  when 
territory  is  ceded,  to  stipulate  for  the  prop- 
erty rights  of  its  inhabitants ;  U.  S.  v. 
Chaves,  159  U.  S.  452,  16  Sup.  Ct.  57,  40  L. 
Ed.  215. 

In  case  of  a  cession  to  the  United  States, 
the  laws  of  the  ceded  country  inconsistent 
with  the  constitution  and  laws  of  the  Unit- 
ed States,  so  far  as  applicable,  would  cease  to 
be  of  obligatory  force;  but  otherwise  the 
municipal  laws  of  the  foreign  country  con- 
tinue; Municipality  of  Ponce  v.  Church,  210 
U.  S.  310,  28  Sup.  Ct  737,  52  L.  Ed.  106S. 

Annexation  is  an  act  of  state,  and  any  ob- 
ligation assumed  under  a  treaty  to  that  ef- 
fect, either  to  the  ceding  sovereign  or  to  in- 
dividuals, is  not  one  which  municipal  courts 
are  authorized  to  enforce ;    [1S99]  A.  C.  572. 

CESTUI  QUE  TRUST.  He  for  whose  ben- 
efit another  person  is  seised  of  lands  or 
tenements  or  is  possessed  of  personal  prop- 
erty. 

He  who  has  a  light  to  a  beneficial  interest 
In  and  out  of  an  estate  the  legal  title  to 
which  is  vested  in  another.  2  Wash.  R.  P. 
♦163. 

He  may  be  said  to  be  the  equitable  owner ; 
Will.  R.  P.  188;  1  Spence,  Eq.  Jur.  497; 
Inhabitants  of  Orleans  v.  Inhabitants  of 
Chatham,  2  Pick.  (Mass.)  29;  is  entitled, 
therefore,  to  the  rents  and  profits;  may 
transfer  his  interest,  subject  to  the  provi- 
sions of  the  instrument  creating  the  trust ; 
1  Spence,  Eq.  Jur.  507 ;  2  Washb.  R.  P.  195; 
and  may  ordinarily  mortgage  his  interest; 
Perrine  v.  Newell,  49  N.  J.  Eq.  57,  23  Atl. 
492 ;  may  defend  his  title  in  the  name  of 
his  trustee ;  1  Cruise,  Dig.  tit.  12,  c.  4,  §  4 ; 
but  has  no  legal  title  to  the  estate,  as  he  is 
merely  a  tenant  at  will  if  he  occupies  the 
estate;  2  Ves.  Sen.  Ch.  472;  16  C.  B.  R52; 
1  Washb.  R.  P.  88;  and  may  be  removed 
from  possession  in  an  action  of  ejectment  by 
his  own  trustee;  Lew.  Trust.  8th  ed.  ?677; 
Hill,  Trust.  274;  Mordecai  v.  Parker,  It  N. 
C.  425  ;  Russell  v.  Lewis,  2  Pick.  (Mass.)  508 ; 
he  cannot  sue  for  damages  to  trust  lands 
unless  the  trustee  refuses  to  protect  the 
rights  of  the  beneficiary ;  Lindheim  v.  R.  Co., 
6S  Hun  122,  22  N.  Y.  Supp.  6S5.  Where  the 
trustee  neglects  to  defend  the  legal  title  to 
trust  property,  the  beneficiary  may  sue  to 
Bouv.— 29 


remove  a  cloud  on  the  title ;  President,  etc., 
of  Bowdoin  College  v.  Merritt,  54  Fed.  55. 
See  Trust;  Beneficiary;  Spendthrift 
Trust. 

CESTUI  QUE  USE.  He  for  whose  benefit 
land  is  held  by  another  person. 

lie  who  has  a  right  to  take  the  profits  of 
lands  of  which  another  has  the  legal  title 
and  possession,  together  with  the  duty  of 
defending  the  same  and  to  direct  the  majf- 
ing  estates  thereof;  Tudor,  Lead.  Ca>. 
2  Bla.  Com.  330.  See  2  Washb.  R.  P.  95; 
Use. 

CESTUI  QUE  VIE.  He  whose  life  is  the 
measure  of  the  duration  of  an  estate.  1 
Washb.  R.  P.  88. 

CHAFEWAX.  An  officer  in  chancery  who 
fits  the  wax  for  sealing  to  the  writs,  com- 
missions, and  other  instruments  there  made 
to  be  issued  out  He  is  probably  so  called 
because  he  warms  (chaufe)  the  wax. 

CHAFFERS.  Anciently  signified  wares 
and  merchandise;  hence  the  word  chaffer- 
ing, which  is  yet  used  for  buying  and  selling, 
or  beating  down  the  price  of  an  article.  The 
word  is  used  in  stat  3  Edw.  III.  c.  4. 

CHALDRON.  A  measure  of  capacity, 
equal  to  fifty-eight  and  two-thirds  cubic  feet, 
nearly.     Cowell. 

CHALLENGE.  A  request  by  one  person  to 
another  to  fight  a  duel.  No  particular  form 
of  words  is  necessary  to  constitute  a  chal- 
lenge, and  it  may  be  oral  or  written  ;  State 
v.  Perkins,  6  Blackf.  (Ind.)  20;  Ivey  v.  State 
12  Ala.  276;  State  v.  Strickland,  2  Nott  & 
McC.  (S.  C.)  181;  Com.  v.  Pope,  3  Dana  iKy.) 
418.  Sending  a  challenge  is  a  high  ol 
at  common  law,  and  indictable  as  tending 
to  a  breach  of  the  peace ;  Hawk.  PI.  Cr.  b. 
1,  c.  3,  §  3 ;  Com.  v.  Tibbs,  1  Dana  (Ky.)  524 ; 
State  v.  Gibbons,  4  N.  J.  L.  40:  State  v.  Du- 
pont,  2  McCord  (S.  C.)  334;  State  v.  Taylor, 
1  Const.  (S.  C.)  107;  State  v.  Farrier,  8  N. 
C.  487;  State  v.  Perkins,  6  Blackf.  (Ind.) 
20 ;  Com.  v.  Lambert,  9  Leigh  (Ya.)  003.  He 
who  carries  a  challenge  is  also  punishable 
by  indictment;  Clark,  Cr.  L.  340;  U.  S.  v. 
Shackelford,  3  Cra.  C.  C.  17S,  Fed.  Cas.  No. 
16,200.  In  most  of  the  states,  this  barbarous 
practice  is  punishable  by  special  laws.  2 
Bish.  Cr.  Law,  §  312.  And  in  a  large  num- 
ber of  them  by  their  constitutions  the  giving, 
accepting,  or  knowingly  carrying  a  chal- 
lenge, deprives  the  party  of  the  right  to  hold 
any  office  of  honor  or  profit  in  the  common- 
wealth. 

In  most  of  the  civilized  nations,  challeng- 
ing another  to  fi^bt  is  a  crime,  as  calculated 
to  destroy  the  public  peace ;  and  those  who 
partake  in  the  offence  are  generally  liable  to 
punishment.  In  Spain,  it  is  punished  by  loss 
of  offices,  rents,  and  honors  received  from 
the  king,  and  the  delinquent  is  incapable  to 
hold  them  in  future;    Aso  &  M.  Inst.  b.  2.  t 


CHALLENGE 


450 


CHALLENGE 


19,  c.  2,  §  6.  See,  generally,  Joy,  Chall. ; 
1  Russ.  Cr.  275 ;  2  Bish.  Cr.  Law,  chap.  xv. ; 
Com.  v.  Hart,  6  J.  J.  Marsh.  (Ky.)  120 ;  State 
v.  Taylor,  1  Const.  (S.  C.)  107 ;  In  re  Leigh, 
1   Munf.  (Va.)  468. 

In  Practice.  An  exception  to  the  jurors 
who  have  been  arrayed  to  pass  upon  a  cause 
on  its  trial.     See  2  Poll.  &  Maitl.  619,  646. 

An  exception  to  those  who  have  been  re- 
turned as  jurors.    Co.  Litt.  155  o. 

The  most  satisfactory  derivation  of  the  word  is 
that  adopted  by  Webster  and  Crabb,  from  call, 
challenge  implying  a  calling  off.  The  word  is  also 
used  to  denote  exceptions  taken  to  a  judge's  capac- 
ity on  account  of  interest ;  Bank  of  North  America 
v.  Fitzsimons,  2  Binn.  (Pa.)  454  ;  Pearce  v.  Affleck, 
4  id.  349;  and  to  the  sheriff  for  favor  as  well  as 
affinity ;  Co.  Litt.  158  a;  Munshower  v.  Patton,  10 
S.  &  R.  (Pa.)  336,  13  Am.  Dec.  678.  The  right  is  not 
allowed  to  enable  the  prisoner  to  select  such  jurors 
as  he  may  wish,  but  to  select  just  and  impartial 
ones;    State  v.  Jones,  97  N.  C.  469,  1  S.  B.  680. 

Challenges  are  of  the  following  classes: — 

To  the  array.  Those  which  apply  to  all 
the  jurors  as  arrayed  or  set  in  order  by  the 
officer  upon  the  panel.  Such  a  challenge  is, 
in  general,  founded  upon  some  error  or  mani- 
fest partiality  committed  in  obtaining  the 
panel,  and  which,  from  its  nature,  applies 
to  all  the  jurors  so  obtained.  These  are  not 
allowed  in  the  United  States  generally ;  U. 
S.  v.  Reed,  2  Blatchf.  435,  Fed.  Cas.  No.  16,- 
134;  Thomas  v.  State,  5  How.  (Miss.)  20; 
the  same  end  being  attained  by  a  motion 
addressed  to  the  court,  but  are  in  some 
states ;  Bowman  v.  State,  41  Tex.  417 ;  Boles 
v.  State,  24  Miss.  445 ;  Quinebaug  Bank  v. 
Tarbox,  20  Conn.  510;  Peck  v.  Freeholders 
of  Essex  County,  21  N.  J.  L.  656 ;  Pringle  v. 
Huse,  1  Cow.  (N.  Y.)  432;  Cowgill  v.  Wood- 
en, 2  Blackf.  (Ind.)  332 ;  Rolland  v.  Com.,  82 
Pa.  306,  22  Am.  Rep.  758.  The  challenge 
must  be  based  upon  objection  to  all  the  jurors 
composing  the  panel ;  Clears  v.  Stanley,  34 
111.  App.  338.  Mere  irregularity  in  drawing 
a  jury  is  not  sufficient  cause  to  sustain  a 
challenge  to  the  array ;  Nealon  v.  People,  39 
111.  App.  481 ;  nor  is  the  fact  that  a  chal- 
lenge to  the  array  has  been  sustained  for  bias 
and  prejudice  of  the  officer  summoning  them 
and  few  of  the  same  jurors  are  on  the  second 
venire;  People  v.  Vincent,  95  Cal.  425,  30 
Pac.  581 ;  nor  is  the  fact  that  one  of  the  men 
named  on  the  special  venire  is  dead  and  an- 
other removed  from  the  county ;  State  v. 
Whitt,  113  X.  C.  716,  18  S.  E.  715;  Smith  v. 
Smith,  52  N.  J.  L.  207,  19  Atl.  255.  It  was 
a  good  ground  of  challenge  to  the  array  that 
no  persons  of  African  descent  were  selected 
as  jurors  but  all  such  were  excluded  because 
of  their  race  and  color,  on  affidavit  of  the 
prisoner  to  that  effect,  no  evidence  having 
been  adduced  pro  or  con;  Weal  v.  Delaware, 
103  U.  S.  370,  26  L.  Ed.  567. 

For  cause.  Those  for  which  some  reason 
is  assigned. 

These  may  be  of  various  kinds,  unlimited 
in  number,  may  be  to  the  array  or  to  the 


poll,  and  depend  for  their  allowance  upon 
the  existence  and  character  of  the  reason 
assigned. 

To  the  favor.  Those  challenges  to  the  poll 
for  cause  which  are  founded  upon  reasonable 
grounds  to  suspect  that  the  juror  will  act 
under  some  undue  influence  or  prejudice, 
though  the  cause  be  not  so  evident  as  to  au- 
thorize a  principal  challenge ;  Co.  Litt.  147 
a,  157  a;  Bacon,  Abr.  Juries,  E,  5 ;  Shoef- 
fler  v.  State,  3  Wis.  823.  Such  challenges  are 
at  common  law  decided  by  triors,  and  not  by 
the  court.  See  Triors;  Cancemi  v.  People, 
16  N.  Y.  501 ;  Mann  v.  Glover,  14  N.  J.  L.  195. 
But  see  Milan  v.  State,  24  Ark.  346 ;  Costigan 
v.  Cuyler,  21  N.  Y.  134;  Weston  v.  People, 
6  Hun  (N.  Y.)  140. 

Peremptory.  Those  made  without  assign- 
ing any  reason,  and  which  the  court  must 
allow.  The  number  of  these  in  trials  for 
felonies  was,  at  common  law,  thirty-five ;  4 
Bla.-  Com.  354 ;  but,  by  statute,  has  been 
reduced  to  twenty  in  most  states,  and  is  al- 
lowed in  criminal  cases  only  when  the  of- 
fence is  capital ;  Thorn.  Juries  119 ;  U.  S. 
v.  Cottingham,  2  Blatchf.  470,  Fed.  Cas.  No. 
14,S72;  Hayden  v.  Com.,  10  B.  Monr.  (Ky.) 
125;  Fouts  v.  State,  8  Ohio  St.  98;  see 
Schumaker  v.  State,  5  Wis.  324;  State  v. 
Cadwell,  46  N.  C.  289 ;  Todd  v.  State,  85  Ala. 
339,  5  South.  278.  The  prosecuting  officer 
may  exercise  his  right  of  peremptory  chal- 
lenge of  a  juror  at  any  time  previous  to  the 
acceptance  of  the  jury  by  the  defendant ; 
State  v.  Haines,  36  S.  C.  504,  15  S.  E.  555; 
in  civil  cases  the  right  is  not  allowed  at  all ; 
9  Exch.  472 ;  2  F.  &  F.  137 ;  U.  S.  v.  Cotting- 
ham, 2  Blatchf.  470,  Fed.  Cas.  No.  14,872; 
or,  if  allowed,  only  to  a  very  limited  extent; 
How  v.  Canal  Co.,  5  Harr.  (Del.)  245 ;  Cleve- 
land, P.  &  A.  R.  Co.  v.  Stanley,  7  Ohio  St 
155;  Waterford  &  W.  Turnpike  v.  People,  9 
Barb.  (N.  Y.)  161;  Quinebaug  Bank  v.  Tar- 
box, 20  Conn.  510 ;  Wyatt  v.  Noble,  8  Blackf. 
(Ind.)  507 ;  Lewis  v.  Detrich,  3  la.  216.  Un- 
less given  by  statute  no  right  exists ;  Brown 
v.  R.  Co.,  86  Ala.  206,  5  South.  195.  The  rule 
that  a  juror  shall  be  accepted  or  challenged 
and  sworn  as  soon  as  his  examination  is  com- 
pleted is  not  objectionable  as  embarrassing 
the  exercise  of  the  right  of  peremptory  chal- 
lenge ;  St.  Clair  v.  U.  S.,  154  U.  S.  134, 14  Sup. 
Ct.  1002,  38  L.  Ed.  936.  In  the  federal  courts 
in  trials  for  treason  or  capital  cases,  the  ac- 
cused has  twenty  and  the  United  States  five 
peremptory  challenges ;  U.  S.  R.  S.  §  819. 
The  act  granting  peremptory.challenges  to  the 
government  in  criminal  cases  has  not  taken 
away  the  right  to  conditional  or  qualified 
challenges  when  permitted  in  a  state,  or 
where  it  has  been  adopted  by  a  federal  court 
as  a  rule  or  by  special  order.  The  exercise 
of  the  right  is  under  the  supervision  of  the 
court,  which  should  not  permit  it  to  be  used 
unreasonably  or  so  as  to  prejudice  the  de- 
fendant    It  is  not  an  unreasonable  exercise 


CHALLENGE 


4ol 


CHALLENGE 


of  the  privilege  where,  notwithstanding  its 
exercise,  neither  the  government  nor  the  de- 
fendant had  exhausted  all  their  peremptory 
challenges;  Sawyer  v.  U.  S.,  202  U.  S.  150, 
26  Sup.  Ct.  575,  50  L.  Ed.  972. 

The  allowance  of  peremptory  challenges 
in  excess  of  the  statutory  provision  is  not 
ground  for  reversal,  where  no  prejudice  to 
the  opposite  party  appears;  Stevens  v.  R. 
Co.,  26  R.  I.  90,  58  At  I.  492,  66  L.  R.  A.  465. 
The  number  of  peremptory  challenges  allow- 
•  •(1  raries  much  in  the  different  states.  See 
12  A.  &  E.  Encyc.  346,  347,  n.  3,  for  state 
statutes  on  the  subject. 

To  the  poll.  Those  made  separately  to 
each  juror  to  whom  they  apply.  Distinguish- 
ed from  those  to  the  array. 

Principal.  Th<  se  made  for  a  cause  which 
when  substantiated  is  of  itself  sufficient  ev- 
idence of  bias  in  favor  of  or  against  the 
party  challenging.  Co.  Litt  156  o.  See  3 
Bla.  Com.  363;  4  id.  353.  They  may  be  ei- 
ther to  the  array  or  to  the  poll ;  Co.  Litt. 
156  a,  o. 

The  importance  of  the  distinction  between  prin- 
cipal challenges  and  those  to  the  favor  is  found  in 
the  case  of  challenges  to  the  array  or  of  challenges 
to  the  poll  for  favor  or  partiality.  All  other  chal- 
lenges to  the  poll  must,  it  seems,  be  principal.  The 
distinctions  between  the  various  classes  of  chal- 
lenges are  of  little  value  in  modern  practice,  as  the 
court  generally  determine  the  qualifications  of  a 
Juror  upon  suggestion  of  the  cause  for  challenge, 
and  examination  of  the  juror  upon  oath  when  nec- 
essary.    See  Triors. 

The  causes  for  challenge  are  said  to  be 
either  propter  honoris  respect um  (from  re- 
gard to  rank),  which  do  not  exist  in  the  Unit- 
ed States ;  propter  defectum  (on  account  of 
some  defect),  from  personal  objections,  as 
alienage,  infancy,  lack  of  statutory  require- 
ments; propter  affectum  (on  account  of  par- 
tiality), from  some  bias  or  partiality  either 
actually  shown  to  exist  or  presumed  from 
circumstances;  propter  delict  um  (on  account 
of  crime),  including  cases  of  legal  incom- 
petency on  the  ground  of  infamy;  Co.  Litt 
155  o  et  scq. 

These  causes  include,  amongst  others, 
alienage;  Hollingsworth  v.  Duane,  Wall.  C. 
C.  147,  Fed.  Cas.  No.  6.618;  hut  see  Queen  v. 
Hepburn,  2  Cra.  3,  Fed.  Cas.  No.  11,503 :  in- 
capacity resulting  from  age,  lack  of  statuto- 
ry qualifications;  Montague  v.  Com.,  10 
Gratt  (Va.)  767;  see  State  v.  Garig,  43  La. 
Ann.  365;  partiality  arising  from  near  rela- 
tionship; March  v.  R.  Co.,  1!>  N.  IT.  372;  Hals- 
baugh  v.  Frazer,  19  Pa.  95 ;  Jaques  v.  Com., 
10  Gratt.  (Va.)  690;  State  v.  Perry,  1-1  N.  C. 
330;  Hardy  v.  Sprowle,  32  Me.  310;  Ouine- 
haug  Bank  v.  Leavens,  20  Conn.  87.  50  Am. 
Dec.  272;  Paddock  v.  Wells,  2  Barb.  Ch.  (N. 
Y.)  331;  Trullinger  v.  Webb,  3  Ind.  198; 
Moody  v.  Griffin,.  65  Ga.  304;  see  State  v. 
Walton,  74  Mo.  270;  Wirlbach's  Ex'r  v. 
Bank,  97  Pa.  543,  39  Am.  Rep.  821 ;  an  inter- 
est in  the  result  of  the  trial;  Fleming  v. 
State,  11  Ind.  234;  Page  v.  it.  Co.,  21  N.  H. 
438;    Peck  v.  Freeholders,  21  N.  J.  L.  656; 


Houston  &  T.  C.  Ry.  Co.  v.  Terrell,  G9  Tex. 

650,  7  S.  W.  670;    but  it  should  he  a  d 

pecuniary  interest;    Phillips   . 

L05;    conscientious  ■■  as  to  finding  a 

verdict  of  conviction  in  a  capital  i 

v.  Wilson,  l  Baldw.  78,  Fed.  i 

White  v.  State,  16  '1 1 

.  :  15,  67  Am.  Dec.  I 
oer,  2  CaL  257;   Williams  v.  State,  ■ 
Lewis   v.   State.  9  So 

Martin  v.  State,  16  Ohio   364;   People  v.  Ma- 
jors, 65  CaL  148,  3  Pac.   597,  52   Am. 
295;     Kennedy    v.   State,   19   Tex.    App. 
see  Gates  v.  People,  14  111.  4:;:; ;  Coin.  v.  Web- 
ster, 5  Cash.   (Mass. i  295,  52  Am   Dec  711; 
membership  of  societies,  under  some  circum- 
stances;   13  Q.  B.  815;    People  v.  Reyes,  5 
Cal.  347;   Com.  v.  Livermore,  1  Gray  (Mass.) 
IS;    citizenship  in  a  municipality  inter* 
in  the  case;  Cramer  v.  Burlington,  ',-  la.  315  ; 
Fulweiler  v.  St.  Louis,  61  Mo.  479;    Gibson 
v.  Wyandotte,  20  Kan.  156;    Goshen   v.    Eng- 
land, 119  Ind.  368,  21  N.  E.  977,  5  L.  R,  A. 
253;    bul  11  v.  Albia,   7::   la.  241, 

34  N.  W.  833  ;  acting  as  an  employe1  of  one  of 
the  parties;  Louisville  R.  Co.  v.  Mask,  64 
Miss.  738,  2  South.  360;  Gunter  v.  Mfg.  Co., 
18  S.  C.  263,  44  Am.  Rep.  57:; ;  Central  . 
v.  Mitchell,  63  Ga.  173;  bias  indicated  by 
a  /ions  of  wishes  or  opinions  as  to  the 
result  of  the  trial;  State  v.  Spencer.  21  N.  J. 
L.  196;  Busick  v.  State,  19  Ohio 
v.  Millspaugh,  1  Johns.  (N.  Y.i  3 
v.  Walker,  60  111.  452;  Winnesheik  Ins.  Co. 
v.  Schueller,  id.  465;  O'Mara  v.  Com.,  75  Pa, 
424;  Scranton  v.  Stewart,  52  Ind.  68;  or 
opinions  formed  or  expressed  as  to  the  guilt 
or  innocence  of  one  accused  of  crime ;  Meyer 
v.  State,  19  Ark.  156;  Mar 
Miss.  627;  Sutton  v.  Albatross,  2  Wall.  Jr. 
333,  Fed.  Cas.  No.  13,645;  Moses  v.  State, 
10  Humphr.  (Tenn.)  456 ;  Neely  v.  People,  13 
111.  0S5;  Trimble  v.  State,  2  G.  Greene  (la.) 
404 ;  Busick  v.  State,  19  Ohio  19S ;  Monroe 
v.  State,  5  Ga.  S5;  see  State  v.  Fox,  25  N.  J. 
L.  566;  Baker  v.  State,  15  Ga.  498 ;  Pice  v. 
State.  7  Ind.  332;  Van  Blaricum  v.  People,  16 
111.  364,  63  Am.  Dec. 316;  People  v.  McCauley, 
1  Cal.  379 ;  Com.  v.  Webster,  5  Cush.  I 
295,  52  Am.  Dec,  711  ;  Smith  v.  Com..  7  Gratt 
(Va.)  593;  Baldwin  v.  State,  12  Ma  223; 
Suite  v.  Potter.  IS  Conn.  166;  but  if  opin- 
ion is  based  on  newspaper  report  or  rumor, 
and  the  juror  says  he  can  give  an  impartial 

ion   on   the   evidence,    he    is   com] 
People  v.  Cochran.   61   Cal.  548;     Wal 
State,  102  Ind.  502.   1  N.  E.  856;    Thayer  v. 
Min.  Co.,  105  111.  517;   State  v.  . 
Ann.  327;    State  v.  Green,  95  N.  O.  611  ;    Dl- 
rich  v.  People,  39  Mich.  245;    Weston  v.  Com., 
J  1  I  Pa.  251,  2  Atl.  191.     A  juror  may  be  ask- 
ed whether  his  "political  affiliations  or  party 
predilections  tend   to  bias  his   judgment  ei- 
ther for  or  against  the  defendant";    Connors 
v.  U.   S.,  15S  U.  S.  40S,  15  Sup.  Ct  951,  39 
L  Ed.  1033. 

Who  may  challenge.    Both  parties,  in  civil 


CHALLENGE 


452 


CHALLENGE 


as  well  as  in  criminal  cases,  may  challenge, 
for  cause ;  and  equal  privileges  are  generally 
allowed  both  parties  in  respect  to  perempto- 
ry challenges  ;  but  see  Tharp  v.  Feltz's  Adm'r, 

6  B.  Monr.  (Ky.)  15 ;  Shoeffler  v.  State,  3  Wis. 
823 ;  Pfomer  v.  People,  4  Park.  Cr.  Cas.  (N. 
Y.)  5S6;  and  after  a  juror  has  been  chal- 
lenged by  one  party  and  found  indifferent, 
he  may  yet  be  challenged  by  tbe  other ;  Wil- 
liams v.  State,  32  Miss.  389,  66  Am.  Dec.  615. 
A  juror  has  no  right  to  challenge  himself, 
and  though  a  good  cause  of  challenge  sub- 
sists, yet,  if  neither  party  will  take  advantage 
of  it,  the  court  cannot  reject  him ;  Denn  v. 
Pissant,  1  N.  J.  L.  220;  but  see  Gilliam  v. 
Brown,  43  Miss.  641. 

The  time  to  make  a  challenge  is  between 
the  appearance  and  swearing  of  the  jurors; 
Thompson  v.  Com.,  8  Gratt.  (Va.)  637;  State 
v.  Patrick,  48  N.  C.  443 ;  Lewis  v.  Detrich,  3 
la.  216;  McFadden  v.  Com.,  23  Pa.  12,  62 
Am.  Dec.  308 ;  Jackson  v.  Pittsford,  8  Blackf. 
(Ind.)  194;  Williams  v.  State,  3  Ga.  453; 
State  v.  Bunger,  14  La.  Ann.  461 ;  State  v. 
Anderson,  4  Nev.  265 ;  Woodward  v.  Dean, 
113  Mass.  297  ;  but  see  Haynes  v.  Crutchfield, 

7  Ala.  189;  U.  S.  v.  Morris,  1  Curt.  C.  C. 
23,  Fed.  Cas.  No.  15,815;  Burns  v.  State,  80 
Ga.  544,  7  S.  E.  88;  Thorp  v.  Deming,  78 
Mich.  124,  43  N.  W.  1097;  the  fact  that  a 
panel  has  been  passed  by  a  party  as  satis- 
factory will  not  prevent  him  from  challeng- 
ing one  of  the  jurors  so  passed  at  any  time 
before  he  is  sworn;  Silcox  v.  Lang,  78  Cal. 
118,  20  Pac.  297;  Daniels  v.  State,  88  Ala. 
220,  7  South.  337.  See  Mayers  v.  Smith,  121 
111.  442,  13  N.  E.  216;  Boteler  v.  Roy,  40 
Mo.  App.  234.  A  challenge  for  cause  should 
be  made  before  the  juror  is  sworn ;  People  v. 
Duncan,  8  Cal.  App.  186,  96  Pac.  414;  but 
the  court  may  permit  it  before  the  jury  is 
completed ;  People  v.  Schmitz,  7  Cal.  App. 
330,  94  Pac.  407,  419,  15  L.  R.  A.  (N.  S.)  717 ; 
so  also  peremptory  challenges  may  be  made 
before  the  juror  is  sworn ;  State  v.  Deliso, 
75  N.  J.  L.  808,  69  Atl.  218. 

It  is  a  general  rule  at  common  law  that 
no  challenge  can  be  made  till  the  appear- 
ance of  a  full  jury ;  4  B.  &  Aid.  476 ;  Tay- 
lor v.  R.  Co.,  45  Cal.  323 ;  on  which  account 
a  party  who  wishes  to  challenge  the  array 
may  pray  a  tales  to  complete  the  number, 
and  then  make  his  objection.  Challenges  to 
the  array,  where  allowed,  must  precede  those 
to  the  poll ;  and  the  right  to  the  former  is 
waived  by  making  the  latter ;  Co.  Litt.  158 
a;  Bacon,  Abr.  Juries,  E,  11 ;  People  v.  Rob- 
erts, 6  Cal.  214;  Weeping  Water  Electric 
Light  Co.  v.  Haldeman,  35  Neb.  139,  52  N.  W. 
892 ;  but  see  Clinton  v.  Englebrecht,  13  Wall. 
(U.  S.)  434,  20  L.  Ed.  659.  In  cases  where 
peremptory  challenges  are  allowed,  a  juror 
unsuccessfully  challenged  for  cause  may  sub- 
sequently be  challenged  peremptorily ;  4  Bla. 
Com.  356;  6  Term  531;  4  B.  &  Aid.  476. 
See  Com.  v.  Webster,  5  Cush.  (Mass.)  295, 
52  Am.  Dec.  711. 


Manner  of  making.  Challenges  to  the  ar- 
ray must  be  made  in  writing ;  People  v.  Doe, 
1  Mich.  451;  Suttle  v.  Batie,  1  la.  141;  but 
challenges  to  the  poll  are  made  orally  and 
generally  by  the  attorney's  or  party's  say- 
ing, "Challenge,"  or  "I  challenge,"  or  "We 
challenge;"  1  Chit.  Cr.  Law  533-541;  4 
Hargr.  St.  Tr.  740;  Trials  per  Pais  172; 
Cro.  Car.  105.  See  State  v.  Knight,  43  Me. 
11;  Zimmerly  v.  Road  Com'rs,  25  Pa.  134; 
Rolland  v.  Com.,  82  Pa.  306,  22  Am.  Rep. 
758. 

The  guaranty  in  the  constitution  of  a  trial 
by  jury  does  not  prevent  legislation  as  to 
the  manner  of  selecting  jurors  or  allowing 
peremptory  challenges  to  the  state ;  State 
v.  Ward,  61  Vt.  153,  17  Atl.  483.  See  Jury, 
sub-tit.  Qualifications. 

CHAMBER.  A  room  in  a  house.  There 
may  be  an  estate  of  freehold  in  a  chamber  as 
distinct  and  separate  from  the  ownership  of 
the  rest  of  the  house ;  1  Term  701 ;  Co. 
Litt.  48  b;  Loring  v.  Bacon,  4  Mass.  576  ;  Pro- 
prietors of  South  Congregational  Meeting- 
house v.  City  of  Lowell,  1  Mete.  (Mass.)  538 ; 
Cheeseborough  v.  Green,  10  Conn.  318,  26 
Am.  Dec.  396;  and  ejectment  will  lie  for  a 
deprivation  of  possession;  1  Term  701;  Otis 
v.  Smith,  9  Pick.  (Mass.)  293;  though  the 
owner  thereof  does  not  thereby  acquire  any 
interest  in  the  land ;  Stockwell  v.  Hunter,  11 
Mete.  (Mass.)  448,  45  Am.  Dec.  220.  See 
Brooke,  Abr.  Demand  20  ;  Aldrich  v.  Parsons, 
6  N.  H.  555 ;  Wusthoff  v.  Dracourt,  3  Watts 
(Pa.)  243 ;   3  Leon.  210. 

Consult  Washburn ;  Preston,  Real  Prop- 
erty. 

CHAMBER  OF  ACCOUNTS.  In  French 
Law.  A  sovereign  court,  of  great  antiquity, 
in  France  which  took  cognizance  of  and 
registered  the  accounts  of  the  king's  rev- 
enue :  nearly  the  same  as  the  English  court 
of  exchequer.    Encyc.  Brit. 

CHAMBER  OF  COMMERCE.  A  society  of 
the  principal  merchants  and  traders  of  a 
city,  who  meet  to  promote  the  general  trade 
and  commerce  of  the  place.  Some  of  these 
are  incorporated,  as  in  Philadelphia.  Sim- 
ilar societies  exist  in  all  the  large  commer- 
cial cities,  and  are  known  by  various  names, 
as,  Board  of  Trade,  etc. 

CHAMBERS.  The  private  room  of  the 
judge.  Any  hearing  before  a  judge  which 
does  not  take  place  during  a  term  of  court  or 
while  the  judge  is  sitting  in  court,  or  an  or- 
der issued  under  such  circumstances,  is  said 
to  be  in  chambers.  The  act  may  be  an  of- 
ficial one,  and  the  hearing  may  be  in  the 
court-room ;  but  if  the  court  is  not  in  ses- 
sion, it  is  still  said  to  be  done  in  chambers. 
See  In  Cameba;  Open  Court. 

CHAMPART.  In  French  Law.  The  grant 
of  a  piece  of  land  by  the  owner  to  another, 
on  condition  that  the  latter  would  deliver  to 


CHAMPART 


453 


CHAMPERTY 


him  a  portion  of  the  crops.  18  Toullier,  n. 
182. 

CHAMPERTOR.  One  who  makes  pleas  or 
suits,  or  causes  them  to  be  moved,  either  di- 
rectly or  indirectly,  and  sues  them  at  his 
proper  costs,  upon  condition  of  having  a  part 
of  the  gain.     Stat  33  Edw.  I.  stat.  2. 

One  who  is  guilty  of  champerty. 

CHAMPERTY  (Lat.  campum  partite,  to  di- 
vide the  land).  A  bargain  with  a  plaintiff  or 
defendant  in  a  suit,  for  a  portion  of  the  land 
or  other  matter  sued  for,  in  case  of  a  suc- 
cessful termination  of  the  suit  which  the 
champertor  undertakes  to  carry  on  at  his 
own  expense.  See  19  Alb.  L.  J.  468;  Nickels 
v.  Kanes  Adm'r,  82  Va.  309;    7  Biug.  369. 

Champerty  differs  from  maintenance  chiefly  in 
this,  that  in  champerty  the  compensation  to  be 
given  for  the  service  rendered  is  a  part  of  the 
matter  in  suit,  or  some  profit  growing  out  of  it ;  4 
Bla.  Com.,  Chase's  ed.  905,  n.  8 ;  Wheeler  v.  Pounds, 
24  Ala.  472;  Lathrop  v.  Bank,  9  Mete.  (Mass.)  489; 
Barnes  v.  Strong,  54  N.  C.  100  ;  Arden  v.  Patterson, 
6  Johns.  Ch.  (X.  Y.)  44 ;  Meeks  v.  Dewberry,  67 
Ga.  263;  Hayney  v.  Coyne,  10  Heisk.  (Tenn.)  339; 
Coleman  v.  Billings,  89  111.  1S3 ;  while  in  simple 
maintenance  the  question  of  compensation  does  not 
enter  into  the  account;  2  Bish.  Cr.  Law  §  131;  Quig- 
ley  v.  Thompson,  53  Ind.  317. 

The  offence  was  indictable  at  common  law  ; 
4  Bla.  Com.  135;  Thurston  v.  Percival,  1 
Pick.  (Mass.)  415;  Brown  v.  Beauchamp,  5  T. 
B.  Monr.  (Ky.)  413,  17  Am.  Dec.  81 ;  Douglas 
v.  Wood's  Lessee,  1  Swan.  (Tenn.)  393;  8 
M.  &  W.  G91 ;  see  L.  R.  8  Q.  B.  112 ;  2  App. 
Cas.  1S6 ;  4  L.  R.  Ir.  43 ;  Key  v.  Vattier,  1 
Ohio  132 ;  Wright  v.  Meek,  3  G.  Greene  (la.) 
472;  Newkirk  v.  Cone,  IS  111.  449;  Dauforth 
v.  Streeter,  28  Vt.  490;  McMullen  v.  Guest, 
6  Tex.  275;  and  is  in  some  of  the  states  by 
statute;  Low  v.  Hutchinson,  37  Me.  196; 
Sedgwick  v.  Stanton,  14  N.  Y.  289;  Thomp- 
son v.  Reynolds,  73  111.  11;  Davis  v.  Shar- 
ron,  15  B.  Monr.  (Ky.)  64;  Stoddard  v.  Mix, 
14  Conn.  12;  Richardson  v.  Rowland,  40 
Conn.  565;  Bentinck  v.  Franklin,  38  Tex. 
458;  Duke  v.  Harper,  2  Mo.  App.  1.  Cham- 
perty avoids  contracts  into  which  it  enters ; 
Martin  v.  Clarke,  8  R.  I.  3S9,  5  Am.  Rep.  586. 
A  common  instance  of  champerty,  as  defined 
and  understood  at  common  law,  is  where  an 
attorney  agrees  with  a  client  to  collect  by 
suit  at  his  own  expense  a  particular  claim  or 
claims  in  general,  receiving  a  certain  propor- 
tion of  the  money  collected  ;  Dumas  v.  Smith, 
17  Ala.  305 ;  Key  v.  Vattier,  1  Ohio  132  ;  4 
Dowl.  304;  or  a  percentage  thereon;  Lath- 
rop v.  Bank.  9  Mete.  (Mass.)  489;  2  Bish. 
Cr.  Law  §  132;  Kelly  v.  Kelly,  86  Wis.  170; 
56  N.  W.  637;  and  see  Ogden  v.  Dos  Arts,  4 
Duer  (N.  Y.)  275 ;  Major's  Ex'r  v.  Gibson,  1 
Pat.  &  H.  (Ya.)  48;  Newkirk  v.  Cone,  18  111. 
,449;  Davis  v.  Sharron,  15  B.  Monr.  (Ky.)  64; 
Poe  v.  Davis.  29  Ala.  676;  Evans  v.  Bell,  6 
Dana  (Ky.)  479;  Lytle  v.  State,  17  Ark.  608; 
Backus  v.  Byron,  4  Mich.  535 ;  Martin  v. 
Clarke,  8  R.  I.  389,  5  Am.  Rep.  586;  Fetrow 
v.  Merriwether.  53  111.  275;  Harmon  v. 
Brewster,  7  Bush  (Ky.)  355. 


The  tendency  of  modern  decisions  is,  while 
departing   from   the   uunei  e.-,.-;try   severity   of 
the  old   law,  at   the  same   time   to   pr<. 
the  principle  which  defeats  the  mischief  to 
which  the  old  law  was  directed.     It  has 
the  disposition  of  courts  to  look  not  Bo  much 
to    technical    distinctions,    and    by    treating 
Statutes  on  the  subject  as  declaratory  of  the 
common  law,  to  deal  with  the  subject   with 
more  flexibility,  keeping  in  view  the  real  ob- 
ject of  the  policy   to   restrain  what   wa 
fined  by  Knight  Bruce,  L.  J.,  to  be  "the  traf- 
fic of  merchandizing  in  quarrels,  of  huckster- 
ing in  litigious  discord  ;''    1  D.  M.  &  G.  680, 
GS0.      In    this    spirit,    the   common-law    rule 
relative  to  champerty  and  maintenance  is  no 
longer  recognized  in  many  states ;   Nickels  v. 
Kane's  Adm'r,  82  Va.  309;    Browu  v.   I 
21  Or.  260,  28  Pac.  11,  14  L.  R.  A.  745,  28 
Am.  St.  Rep.  752  ;    Byrne  v.  R.  Co.,  55  Fed. 
44;    but  in  New  York  by  statute  it  is  unlaw- 
ful for  an  attorney  to  give  or  promise  a  con- 
sideration for  placing  in  his  hands  a  claim 
for    injuries    against    a    railroad    company ; 
Code  C.  P.  678;  (Jishei  v.  Lazzarone,  61  llun 
023,  15  N.   Y.   Supp.  933.     Where  an  attor- 
ney agrees  to  prosecute  an  action  for  dam- 
ages  and    advance  all   costs    ;  of    the 
poverty  of  the  plaintiff,  taking  a  contingent 
fee  of  a  portion  of  the  amount  recovered,  it 
is  not  void  for  champerty ;    Dunne  v.   Her- 
rick,  37  111.  App.  180 ;    nor  is  a  contract  to 
pay  for  services  of  an  attorney  contingent 
entirely  upon  success;    Lewis  v.   Brown,  36 
W.  Va.  1,  14  S.  E.  444;   Mumma's  Appeal,  127 
Pa.  474,  18  Atl.  6;   Omaha  &  R.  V.  R.  Co.  v. 
Brady,  39  Neb.  27,  57  N.  W.  707;    Lewis  v. 
Brown,  30  W.   Va.  1,  14  S.  E.    ill   (and  see 
Elliott  v.   Rubel,   132   111.  9,   23  N.   E.  400); 
Fowler  v.  Callan,  102  N.  Y.  395,  7  N.  E.  169; 
Winslow  v.  R.  Co.,  71  la.  197,  32  N.  YV.  330; 
Belding  v.   Smythe,  13S  Mass.   530;    Phelps 
v.  Park  Com'rs,  119  111.  620,  10  N.  E. 
Aultnian  v.  Waddle,  40  Kan.  195,  19  Pac.  730 ; 
Stevens  v.  Sheriff,  76  Kan.  124.  90  Pac.  799. 
11  L.  R.  A.  (N..S.)  1153;    Taylor  v.  Bemiss, 
110  U.  S.  42,  3   Sup.  Ct.  441,  2S  L.  Ed.  64; 
if  unconscionable,  it  will  not  be  upheld  ;  Mul- 
ler  v.  Kelly,  L25  Fed.  212,  60  C.  C.  A.  170.     A 
committee  of  the  Pennsylvania  Bar  Associa- 
tion (1908,  1909)  and  one  of  the  New  York 
State  Bar  Association    (1909)  have  reported 
strongly   against  contingent  fees.     The  pur- 
chase by  attorneys  of  rights  of  action,  for 
the  purpose  of  bringing  suit  thereon,  is  com- 
monly prohibited  in  law.  on  grounds  of  pub- 
lic policy:    Chase's  Bla.  Com.  905,  n.  S:    and 
an  agreement  that  the  client  shall  receive  a 
certain    amount    out   of   the    sum    recovered, 
and   that  all   above  (hat  shall   belong   to   the 
attorney,   is  champertous;    Dahrus  v.   Sears. 
13  Or.   17.  11    Pac.  S91;    Silverman  v.  R.  Co., 
141    Fed.    382 :     but   such   an   agreement   for 
collection  without  suit  is  not  champertous; 
Burnham  v.  Heselton,  84  Me.  57S,  24  Atl.  955. 
A  contract  by  an  attorney  to  pay  witness 


CHAMPERTY 


454 


CHAMPERTY 


fees  out  of  a  contingent  fee  to  be  allowed 
him  for  successful  services  in  a  suit  is  chain- 
pertous ;  Barngrover  v.  Pettigrew,  128  la. 
533,  104  N.  W.  904,  2  L.  R.  A.  (N.  S.)  2G0,  111 
Am.  St.  Rep.  206,  and  so  is  a  contract  stip- 
ulating that  the  client  shall  not  compromise 
or  settle  his  claim  without  the  consent  of  the 
attorney;  Davy  v.  Ins.  Co.,  7S  Ohio  St.  256, 
85  N.  E.  504,  17  L.  R.  A.  (N.  S.)  443,  125  Am. 
St.  Rep.  694.  Some  cases  have  held  that  an 
attorney  is  under  absolute  disability  to  pur- 
chase .from  his  client  the  subject  of  his  re- 
tainer; 12  Ir.  Eq.  1;  West  v.  Raymond,  21 
Ind.  .'105;  such  purchases  have  been  held  iu 
other  cases  to  be  presumptively  void ;  Stu- 
binger  v.  Frey,  116  Ga.  396,  42  S.  E.  713; 
Roby  v.  Colehour,  135  111.  300,  25  N.  E.  777; 
or  to  be  voidable  at  the  option  of  the  client ; 
Lane  v.  Black,  21  W.  Va.  617;  they  will  be 
closely  scrutinized  by  the  court;  Mitchell  v. 
Colby,  95  la.  202,  63  N.  W.  769;  Barrett  v. 
Ball,  101  Mo.  App.  288,  73  S.  W.  S65 ;  but 
they  will  not  be  set  aside  if  they  were  "open, 
honest  and  in  every  way  fair  to  the  client"  ; 
Vanasse  v.  Reid,  111  Wis.  303,  S7  N.  W.  192. 
Many  cases  have  refused  to  hold  the  attor- 
ney to  be  under  an  absolute  disability  in  this 
respect;  Handlin  v.  Davis,  81- Ky.  34;  Cox 
v.  Delmas,  99  Cal.  104,  33  Pac.  836 ;  Klein  v. 
Borchert,  89  Minn.  377,  95  N.  W.  215.  The 
attorney,  to  sustain  such  a  purchase,  must 
establish  the  utmost  good  faith  and  fairness 
and  adequacy  of  consideration  and  that  he 
gave  full  information  and  disinterested  ad- 
vice to  the  client ;  Byrne  v.  Jones,  159  Fed. 
32^.,  90  C.  C.  A.  101 ;  Dunn  v.  Record,  63  Me. 
17;  Day  v.  Wright,  233  111.  218,  84  N.  E. 
226 ;  he  must  prove  uberrima  fides;  Young 
v.  Murphy,  120  Wis.  49,  97  N.  W.  496;  this 
rule  has  been  applied  to  purchases  made 
after  the  relation  has  terminated ;  33  Beav. 
133;  Barrett  v.  Ball,  101  Mo.  App.  288,  73 
S.  W.  865. 

A  contract  by  one  not  acting  as  attorney, 
for  a  specific  consideration,  to  defeat  the 
probate  of  a  will,  is  void  as  a  species  of 
champerty  or  maintenance  ;  Cochran  v.  Zach- 
ery,  137  la.  585,  115  N.  W.  4S6,  16  L.  R.  A. 
(N.  S.)  235,  126  Am.  St.  Rep.  307,  15  Ann. 
Cas.  297 ;  but  an  agreement  by  one  having  a 
claim  against  a  decedent's  estate  to  do  ev- 
erj'thing  proper  and  legitimate  to  aid  the 
heirs  in  recovering  the  estate  in  considera- 
tion that  they  would  pay  his  claim  is  not 
void  as  champerty  or  maintenance ;  Smith  v. 
Hartsell,  150  N.  C.  71,  63  S.  E.  172,  22  L.  R. 
A.  (N.  S.)  203. 

In  England  contingent  fees  to  solicitors  are 
void  by  a  statute  of  1870.  They  are  unknown 
in  the  case  of  barristers. 

In  England,  in  New  York,  and  probably 
most  of  the  states,  the  purchase  of  land, 
pending  a  suit  concerning  it,  is  champerty; 
and  if  made  with  knowledge  of  the  suit  and 
not  pursuant  to  a  previous  agreement,  it  is 
void  ;  4  Kent  449 ;  Bowling's  Heirs  v.  Roark 
(Ky.)  24  S.  W.  4;   Sneed  v.  Hope  (Ky.)  30  S. 


W.-20;  Snyder  v.  Church,  70  Hun  42S,  24 
N.  Y.  Supp.  337;  this  doctrine,  established 
by  the  English  statutes.  Westm.  1,  c.  25, 
Westm.  2,  c.  49,  and  28  Edw.  I.  c.  11,  became 
part  of  the  common  law,  and  either  as  such 
or  by  statutory  adoption  became  engrafted 
upon  the  law  of  almost  all  the  states.  The 
principle  extends  to  the  purchase  of  any 
cause  of  action,  as  a  patent  which  has  been" 
infringed;  Keiper  v.  Miller,  OS  Fed.  027; 
unpaid  promissory  notes;  Hamilton  v.  Gray, 
67  Yt.  233,  31  Atl.  315,  48  Am.  St.  Rep.  811. 
In  Pennsylvania  a  person  may  convey  an 
interest  in  lands  held  adversely  to  him ;  Mur- 
ray's Estate,  13  Pa.  Co.  Ct  70. 

See  Buying  Titles. 

The  champerty  of  the  plaintiff  is  no  de- 
fence in  the  action  concerning  which  the  con- 
tract was  made.  A  railroad  company  sued 
for  an  overcharge  cannot  defend  by  show- 
ing that  the  plaintiff  made  a  champertous 
contract  with  his  attorney  to  induce  the  com- 
pany to  accept  the  overcharge  and  then  sue 
for  the  penalty ;  Railway  Co.  v.  Smith,  60 
Ark.  221,  29  S.  W.  752;  nor  is  such  defence 
good  in  actions  for  personal  injuries ;  Omaha 
&  R.  Y.  Ry.  Co.  v.  Brady,  39  Neb.  27,  57  N. 
W.  767 ;  nor  can  a  purchaser  of  a  disputed 
title  defend  against  a  prior  unrecorded  deed 
to  plaintiff's  attorney  for  one-half  of  the 
la*hd,  on  the  ground  that  the  latter  was  given 
under  a  champertous  contract ;  Chamberlain 
v.  Grimes,  42  Neb.  701,  60  N.  W.  948;  and 
generally  the  objection  that  a  contract  is 
champertous  cannot  be  set  up  by  a  stranger 
to  it  or  in  defence  of  a  suit  brought  under  it ; 
Ashurst  v.  Peck,  101  Ala.  499,  14  South. 
541;  Pennsylvania  Co.  v.  Lombardo,  49  Ohio 
St.  1,  29  N.  E.  573,  14  L.  R.  A.  785 ;  Gilkeson 
Sloss  Commission  Co.  v.  Bond,  44  La.  Ann. 
S41,  11  South.  220;'  Euneau  v.  Rieger,  105 
Mo.  659,  16  S.  W.  854. 

An  attorney  suing  as  "administrator"  to 
recover  for  a  death  by  wrongful  act  may  be 
guilty  of  a  champertous  agreement  with  the 
beneficiaries,  which  may  be  pleaded  as  a  de- 
fence to  the  suit  under  a  statute  investing 
the  courts  with  equity  powers  for  the  pur- 
pose of  discovering  and  preventing  the  of- 
fence; Byrne  v.  R.  Co.,  55  Fed.  44.  For  an 
analysis  of  the  cases,  see  Wald's  Poll.  Cont 
293. 

As  to  agreements  between  attorney  and 
client  regarding  fees  in  divorce  cases,  see 
Divorce  ;  Attorney  ;  Ethics,  Legal. 

As  to  conditional  fees  in  Roman  Law,  see 
Advocati. 

CHAMPION.  He  who  fights  for  another, 
or  who  takes  his  place  in  a  quarrel.  One 
who  fights  his  own  battles.  Bracton,  1.  4,  t 
2,  c.  12. 

CHANCE.     See  Accident. 

CHANCE-MEDLEY.  A  sudden  affray. 
This  word  is  sometimes  applied  to  any  kind 
of  homicide  by  misadventure,  but  in  strict- 
ness it  is  applicable  to  such  killing  only  as 


CHANCE-M  EDLEY 


455 


CHANCELLOR 


happens  in  defending  one's  self.    4  Bla.  Com. 
1S4. 

CHANCELLOR.  An  officer  appointed  to 
preside  over  a  court  of  chancery,  invested 
with  various  powers  in  the  several  states. 

There  is  a  chancellor  for  the  state  in  Dela- 
ware, and  also,  with  vice-chancellors,  in  New 
Jersey,  and  in  Alabama,  Mississippi,  and 
Tennessee  there  are  district  chancellors  elect- 
ed by  the  people.  Under  the  federal 
and  in  the  other  states  the  powers  and  ju- 
risdiction of  courts  of  equity  are  administer- 
ed by  the  same  judges  who  hold  the  common- 
law  courts. 

The  title  is  also  used  In  some  of  the  dio- 
ceses of  the  Protestaut  Episcopal  Church  in 
the  United  States  to  designate  a  member  of 
the  legal  profession  who  gives  advice  and 
counsel  to  the  bishop  and  other  ecclesiastical 
authorities. 

In  Scotland,  this  title  is  given  to  the  fore- 
man of  the  jury.     Bisph.  Eq.  7. 

An  officer  bearing  this  title  is  to  be  found  in 
some  countries  of  Europe,  and  is  generally 
invested  with  extensive  political  authority. 
It  was  finally  abolished  in  France  in  1848. 
The  title  and  office  of  chancellor  came  to  us 
from  England. 

See  1  Spence,  Eq.  Jur.;  4  Viner,  Abr.  374; 
Woodd.  Lect.  95. 

For  the  history  of  the  office,  see  Cancel- 
larius. 

In  England  the  title  is  borne  by  several 
functionaries,  thus: 

Lord  High  Chancellor  of  Great  Britain. 
This  has  been  the  title  of  his  office  since  the 
Union  with  Scotland  (in  effect  May  1,  1707). 
He  is  appointed  by  the  Crown,  by  the  deliv- 
ery to  him  of  the  Great  Seal  of  the  United 
Kingdom,  and  verbally  addressing  him  by 
the  title.  It  is  usual  to  appoint  the  person 
recommended  by  the  Prime  Minister,  from 
such  members  of  the  bar  as  hold  or  have  held 
the  office  of  Attorney  or  Solicitor  General. 
There  is  no  qualification  for  the  office,  except 
that  none  but  a  Protestant  can  be  appointed. 
7  Halsb.  Laws  of  Eng.  56.  He  holds  office 
during  pleasure,  and  as  a  member  of  the 
Cabinet  and  under  the  usage  accepts  or  re- 
tires from  office  with  the  political  party  to 
which  he  belongs.  He  is  expressly  excepted 
from  the  term  of  office  during  good  behavior 
provided  for  the  judges  in  the  Judicature 
Acts.  He  is  a  member  of  the  Privy  Council, 
probably  by  prescription;  also  prolocutor  or 
speaker  of  the  House  of  Lords  by  prescrip- 
tion. He  is  not  necessarily  a  peer,  and  if 
not,  he  cannot  address  the  House  of  Lords. 
He  is  custodian  of  the  Great  Seal,  except 
when  it  is  entrusted  to  a  Lord  Keeper,  or  is 
in  commission.  lie  is  head  of  the  judicial 
administration  of  England  and  is  responsi- 
ble for  the  appointment  of  judges  of  the 
High  Court,  except  the  Chief  Justice,  who  is 
appointed  by  the  Trime  Minister.  He  ap- 
points  County   Court  judges   (except   where 


the  whole  of  the  County  Court  district  lies 
within  the  Duchy  of  Lancaster).  He  advises 
the  Crown  as  to  nominating  Justices  of  the 
Peace.  He  is  President  of  the  High  Court  of 
Justice,  and  of  the  Chancery  Division  of  the 
High  Court  and  an  ex  officio  member  of  the 
Court  of  Appeals,  and  presiding  officer  thereof. 

Lord   Chancellors  Since  1660. 

1660  Lord  Clarendon. 

1667  Lord  Keeper     (Sir  Orlando  Bridgman). 

1672  Lord  Shaftesbury. 

1673  Lord  Nottingham. 
1682  Lord  Keeper  Guilford. 
1685  Lord  Keeper  Guilford. 
1685  Lord  Jeffreys. 

1687  Lord  Commissioner  Meynard  and  others. 

1690  Lord  Commissioner  Trevor  and  others. 

1693  Lord  Somers     (John  Somers). 

1700  Lord  Keeper  Wright     (Nathan  Wright). 

1702  •     Lord  Keeper  Wright 

1705  Lord  Cowper    (Earl  Cowper). 

1710  Lord  Harcourt. 

1714  Lord  Harcourt 

1714  Lord  Cowper. 

1718  Lord  Macclesfield    (Thomas  Parker). 

Lord  King    (Peter  King). 

1727  Lord  King. 

1733  Lord  Talbot     (Charles  Talbot). 
17J7      .  Lord  Hardwicke     (Philip  Yorke). 

1757  Lord  Keeper  Henley    (Robert  Henley). 

1760  Lord  Northington. 

1766  Lord  Camden    (Charles  Pratt). 

1770  Charles  Yorke. 

1771  Lord  Apsley,    Earl    Bathurst    (Henry     Bath- 

urst). 

1778  Lord  Thurlow     (Edward  Thurlow). 

1783  Lord  Thurlow. 

1793  Lord  Loughborough  (Alexander  Wedderburni 

1801  Lord  Eldon     (John  Scott). 

1806  Lord  Erskine     (Thomas  Erskine). 

1S07  Lord  Eldon. 

1S20  Lord  Eldon. 

1827  Lord  Lyndhurst  (John  Singleton  Copley). 

1S30  Lord  Brougham    (Henry  Brougham). 

1834  Lord  Lyndhurst. 

1S36  Lord  Cottcnham    (Charles  Christopher  Pepys). 

1837  Lord  Cottenham. 

1841  Lord  Lyndhurst 

1S16  Lord  Cottcnham. 

1850  Lord  Truro     (Thomas  Wilde). 

1852  Lord  St.  Leonards  (Edward  Burtenshaw  Sug- 

den). 

1852  Lord  Cranworth    (Robert  Monsey  Rolfe). 

1858  Lord  Chelmsford     (Frederick  Thesiger). 

1859  Lord  Campbell     (John  Campbell). 
1861  Lord  Westbury  (Richard  Bethell). 

1865  Lord  Cranworth. 

1866  Lord  Chelmsford. 

1868  Lord  Cairns    (Hugh  McCalmont  Cairns). 

1868  Lord  Hatherly     (Wm.   Page-Wood). 

1872  Lord  Selborne    (Roundell  Palmer). 

1874  Lord  Cairns. 

1880  Lord  Selborne. 

18S5  Lord  Halsbury  (Hardinge  Stanley  Giffard). 

1886  Lord  Herschell     (Farrer  Herschcll). 

1886  Lord  Halsbury. 

1892  Lord  Herschell. 

1S95  Lord  Halsbury. 

1905  Lord  Lorcburn  (Robert  Threshic  Reld). 

1912  Lord  Haldane     (Richard  Burdon  Haldane). 

There  is  a  Lord  Chancellor  of  Ireland,  but 
none  in  Scotland  since  the  Union. 

The  Chancellor  of  the  Duchy  of  Lancaster, 
who  presides  over  the  court  of  the  duchy, 
to  judge  and  determine  controversies  relat- 
ing to  lands  holden  of  the  king  in  right  of 
the   Duchy    of   Lancaster. 

The  Chancellor  of  the  Exchequer  is  an  of- 
ficer who  formerly  sat  in  the  court  of  ex- 


CHANCELLOR 


456 


CHANCELLORS'  COURTS 


chequer,  and,  with  the  rest  of  the  court, 
ordered  things  for  the  king's  benefit.  Cowell. 
This  part  of  his  functions  is  now  practically 
obsolete;  the  chancellor  of  the  exchequer 
is  now  known  as  the  minister  of  state  who 
has  control  over  the  national  revenue  and 
expenditure.    2  Steph.  Com.  467. 

The  Chancellor  of  a  Diocese  is  the  officer 
appointed  to  assist  a  bishop  in  matters  of 
law,  and  to  hold  his  consistory  courts  for 
him.  1  Bla.  Com.  382;  2  Steph.  Com.,  11th 
ed.  6S4. 

The  Chancellor  of  a  University,  who  is  the 
principal  officer  of  the  university.  His  office 
is  for  the  most  part  honorary. 


CHANCELLORS'  COURTS  IN  THE  TWO 
UNIVERSITIES.  Courts  of  local  jurisdic- 
tion, resembling  borough  courts,  in  and  for 
the  two  Universities  of  Oxford  and  Cam- 
bridge in  England.  3  Bla.  Com.  83.  These 
are  courts  subsisting  under  ancient  charters 
granted  to  these  universities  and  confirmed 
by  act  of  parliament.  If  the  defendant  be 
a  member  of  the  University  of  Oxford  resi- 
dent within  its  limits,  the  suit  must  be  in 
this  court,  although  the  plaintiff  is  not  con- 
nected with  the  university  or  resident  there, 
and  although  the  cause  of  action  did  not 
arise  within  its  limits;  Odgers,  C.  L.  1030, 
citing  16  Q.  B.  D.  761.  The  rule  at  Cam- 
bridge is  the  same,  except  that  the  privilege 
cannot  be  claimed  if  any  person  not  a  mem- 
ber of  the  university  be  a  party.  The  Uni- 
versity of  Oxford  claims  a  similar  privilege  in 
criminal  matters  when  any  member  of  the 
university,  resident  within  its  limits,  is  de- 
fendant or  prosecutor;  Odgers,  C.  L.  1030; 
4  Inst.  227 ;  Rep.  *.  Hardw.  341 ;  2  Wils.  406 ; 
12  East  12;  13  id.  635;  15  id.  634;  10  Q. 
B.  292.  This  privilege  of  exclusive  jurisdic- 
tion was  granted  in  order  that  the  students 
might  not  be  distracted  from  their  studies 
and  other  scholastic  duties  by  legal  process 
from  distant  courts. 

The  most  ancient  charter  containing  this 
grant  to  the  University  of  Oxford  was  28 
Hen.  III.  a.  d.  1244,  and  the  privileges  there- 
by granted  were  confirmed  and  enlarged  by 
every  succeeding  prince  down  to  Hen.  VIII., 
in  the  14th  year  of  whose  reign  the  largest 
and  most  extensive  charter  of  all  was  grant- 
ed, and  this  last-mentioned  charter  is  the 
one  now  governing  the  privileges  of  that  uni- 
versity. A  charter  somewhat  similar  to  that 
of  Oxford  was  granted  to  Cambridge  in  the 
third  year  of  Elizabeth.  And  subsequently 
was  passed  the  statute  of  13  Eliz.  c.  29, 
whereby  the  legislature  recognized  and  con- 
firmed all  the  charters  of  the  two  universi- 
ties, and  those  of  the  14  Henry  VIII.  and 
3  Eliz.  by  name  (13  Eliz.  c.  29) ;  16  Q.  B.  D. 
761  (Oxford),  12  East  12  (Cambridge),  which 
act  established  the  privileges  of  these  uni- 
versities without  any  doubt  or  opposition. 

It   is   to  be   observed,   however,   that   the 
privilege  can  be  claimed  only  on  behalf  of 


members  who  are  defendants,  and  when  an 
action  in  the  High  Court  is  brought  against 
such  member  the  university  enters  a  claim 
of  conusance,  that  is,  claims  the  cognizance 
of  the  matter,  whereupon  the  action  is  with- 
drawn from  the  High  Court  and  transferred 
to  the  University  Court;  16  Q.  B.  D.  761. 

Procedure  in  these  courts  was  usually  reg- 
ulated according  to  the  laws  of  the  civilians, 
subject  to  specific  rules  made  by  the  vice- 
chancellor,  with  the  approval  of  three  of 
his  Majesty's  judges.  See  (as  to  Oxford) 
25  &  26  Vict,  c  26,  §  12.  Under  the  charter 
of  Henry  VIII.  the  chancellor  and  vice- 
chancellor  and  the  deputy  of  such  vice- 
chancellor  are  justices  of  the  peace  for  the 
counties  of  Oxford  and  Berks,  which  juris- 
liction  was  confirmed  in  them  by  49  &  50 
Vict.  c.  31 ;  3  Steph.  Com.  325. 

The  judge  of  the  chancellor's  court  at  Ox- 
ford was  a  vice-chancellor,  with  a  deputy 
or  assessor.  An  appeal  lay  from  his  sentence 
to  delegates  appointed  by  the  congregation, 
thence  to  delegates  appointed  by  the  house 
of  convocation,  and  thence,  in  case  of  any 
disagreement  only,  to  judges  delegates  ap- 
pointed by  the  crown  under  the  great  seal 
in  chancery;  3  Steph.  Com.,  11th  ed.  325. 


CHANCER.  To  adjust  according  to  prin- 
ciples of  equity,  as  would  be  done  by  a 
court  of  chancery.    Cent  Diet. 

The  practice  indicated  by  the  word  arose 
in  parts  of  New  England  at  a  time  when 
the  courts  had  no  equity  jurisdiction,  and 
were  sometimes  compelled  to  act  upon  equi- 
table principles;  as  by  restraining  the  en- 
forcement of  the  penalty  of  a  bond  beyond 
what  was  equitable. 

In  Inhabitants  of  Machiasport  v.  Small, 
77  Me.  109,  and  Lewiston  v.  Gagne,  89  Me. 
395,  36  Atl.  629,  56  Am.  St.  Rep.  432,  bonds 
were  "chancered"  after  judgment  had  been 
entered  for  the  penalty.  The  court  will 
"chancer"  a  bond  upon  a  writ  of  scire  faci- 
as; Colt  v.  Eaton,  1  Root  (Conn.)  524;  a 
court  of  bankruptcy  may  "chancer"  a  bond 
given  for  the  release  of  a  bankrupt;  In  re 
Appel,  163  Fed.  1002,  90  C.  C.  A.  172,  20 
L.  R.  A.  (N.  S.)  76  (C.  C.  A.,  1st  Cir.).  Un- 
der a  statute,  the  penalty  of  a  recognizance 
to  prosecute  a  writ  of  error  was  "chancered" 
after  execution  had  been  returned  satisfied; 
James  v.  Smith,  1  Tyler  (Vt.)  128.  See  Vt. 
Stat.  1894,  §§  2035-2038.  In  the  absence 
of  a  statute  "chancering"  was  refused  in 
Philbrick  v.  Buxton,  40  N.  H.  384. 

The  practice  of  "chancering"  is  a  very  old 
one.  A  forfeiture  could  be  "chancered"  un- 
der a  law  of  1699;  Phoenix  Mut.  Life  Ins. 
Co.  v.  Clark,  59  N.  H.  561.  Adjudged  cases 
in  1630-1692  may  be  found  in  the  Records 
of  the  Court  of  Assistants  of  Massachusetts 
Bay  Colony.  The  early  laws  of  Massachu- 
setts provided  for  "chancering"  the  for- 
feiture of  any  penal  bond ;  Acts  of  1692, 
1693,  1697,  169S,  1699;  and  bonds  and  niort- 


CHANCER 


457 


CHARACTER 


gages  were  frequently  "chancered"  by  spe- 
cial act;  10  Acts  and  Resolves  of  Massachu- 
setts Bay,  403,  670;  11  id.  585;  13  id.  244; 
16  id.  95.  In  Rhode  Island  an  act  of  174G 
provided  for  "chancerizing"  the  forfeiture 
"where  any  penalty  is  forfeited,  or  condi- 
tional estate  recovered,  or  equity  of  redemp- 
tion sued  for,  whether  judgment  is  con- 
fessed or  otherwise  obtained." 

Chancer  is  defined  in  the  New  Dictionary 
as  to  "tax"  (an  account  or  bill  of  costs)  but 
there  seems  to  be  no  authority  for  this. 

CHANCERY.     See   Coubt  of  Chancery. 

CHANNEL.  The  bed  in  which  the  main 
stream  of  a  river  flows,  and  not  the  deep 
water  of  the  stream,  as  followed  in  navi- 
gation. Dunlieth  &  Dubuque  Bridge  Co.  v. 
Dubuque  County,  55  la.  558,  8  N.  W.  443. 
The  main  channel  is  that  bed  of  the  river 
over  which  the  principal  volume  of  water 
flows.  St.  Louis  &  St.  P.  Packet  Co.  v. 
Bridge  Co.,  31  Fed.  757. 

By  act  of  congress  of  Sept.  19,  IS90,  U.  S. 
R.  S.  1  Supp.  S00,  any  alteration  or  modifica- 
tion of  the  channel  of  any  navigable  water 
of  the  United  States,  by  any  construction, 
excavation,  or  filling,  or  in  any  other  man- 
ner without  the  approval  of  the  secretary  of 
w:ir.  is  prohibited.  For  the  construction  of 
this  act,  see  U.  S.  v.  Burns,  54  Fed.  351. 

CHANTRY.  A  church  or  chapel  endowed 
with  lands  for  the  maintenance  of  priests  to 
say  mass  daily  for  the  souls  of  the  donors. 
Termes  de  la  Ley;  Cowell. 

CHAPELRY.  The  precinct  of  a  chapel; 
the  same  thing  for  a  chapel  that  a  parish  is 
for  a  church.    Termes  de  la  Ley ;  Cowell. 

CHAPELS.  Places  of  worship.  They  may 
be  either  private  chapels,  such  as  are  built 
and  maintained  by  a  private  person  for  his 
own  use  and  at  his  own  expense,  or  free 
chapels,  so  called  from  their  freedom  or  ex- 
emption from  all  ordinary  jurisdiction,  or 
chapels  of  case,  which  are  built  by  the 
mother-church  for  the  ease  and  convenience 
of  its  parishioners,  and  remain  under  its 
jurisdiction  and  control. 

CHAPTER.  In  Ecclesiastical  Law.  A 
congregation  of  clergymen. 

Such  an  assembly  is  termed  capitiilum,  which 
signifies  a  little  head  ;  it  being  a  kind  of  head,  not 
only  to  govern  the  diocese  in  the  vacation  of  the 
bishopric,  but  also  for  other  purposes.  Coke,  Litt. 
103. 

CHARACTER.  The  possession  by  a  per- 
son of  certain  qualities  of  mind  or  morals, 
distinguishing  him  from  others. 

In  Evidence.  The  opinion  generally  enter- 
tained of  a  person  derived  from  the  common 
report  of  the  people  who  are  acquainted 
with  him ;  his  reputation.  Kimmel  v.  Kim- 
mel,  3  S.  &  R.  (Pa.)  336,  8  Am.  Dec.  655; 
Boynton  v.  Kellogg,  3  Mass.  192,  3  Am.  Dec. 
122 ;  3  Esp.  236 ;  Tayl.  Ev.  328,  329. 

A  clear  distinction  exists  between  the  strict  mean- 
ing of  the  words  character  and  reputation.     Char- 


acter   Is   defined  to   be   the   assemblage   of  qualities 
which    distinguish   one   person    from    another,   while 
reputation  is  the  opinion  of  character  generally  en- 
tertained;   Worcester,  Diet.     This   distinction,  how- 
ever, is  not  regarded  either  in  the  i-tatutes  or  in  the 
decisions  of  the  courts  ;    thus,  a  libel  is  said  to  be 
an  injury  to  character;    the  character  of  a  witness 
for   veracity   is  said   to   be   impeached; 
offered  of  a  prisoner's  good  character  ;    Abbott,  Law 
Diet.     See  Leverich  v.   Frank,  G  Or.  213; 
Leach,  26  Vt.   278.     The  word  character  is  t! 
used  in  the  law  rather  to  express  what  is  properly 
signified  by  reputation. 

The  moral  character  and  conduct  of  a 
person  in  society  may  be  used  in  proof  be- 
fore a  jury  in  three  classes  of  cases :  first, 
to  afford  a  presumption  that  a  particular 
person  has  not  been  guilty  of  a  criminal  act; 
second,  to  affect  the  damages  in  particular 
cases,  where  their  amount  depends  on  the 
reputation  and  conduct  of  any  individual ; 
and,  third,  to  impeach  or  confirm  the  veraci- 
ty of  a  witness. 

Whore  the  guilt  of  an  accused  person  is 
doubtful,  and  the  character  of  the  supposed 
agent  is  involved  in  the  question,  a  presump- 
tion of  innocence  arises  from  his  former 
conduct  in  society,  as  evidenced  by  hi 
eral  reputation;  since  it  is  not  probable  that 
a  person  of  known  probity  and  humanity 
would  commit  a  disnonest  or  outrageous 
act  in  the  particular  instance.  But  where 
it  is  a  question  of  great  and  atrocious  crim- 
inality, the  commission  of  the  act  is  so  un- 
usual, so  out  of  the  ordinary  course  of 
things  and  beyond  common  experience — it  is 
so  manifest  that  the  offence,  if  perpetrated, 
must  have  been  influenced  by  motives  not 
frequently  operating  upon  the  human  mind 
— that  evidence  of  reputation  and  of  a  man's 
habitual  conduct  under  common  circumstanc- 
es, must  be  considered  far  inferior  to  what 
it  is  in  the  instance  of  accusations  of  a  low- 
er grade.  Against  facts  strongly  proved, 
good  character  cannot  avail.  It  is  therefore 
in  smaller  offences,  in  such  as  relate  to  the- 
actions  of  daily  and  common  life,  as  when 
one  is  charged  with  pilfering  and  stealing, 
that  evidence  of  a  high  character  for  hon- 
esty will  satisfy-  a  jury  that  the  accused 
is  not  likely  to  yield  to  so  slight  a  tempta- 
tion. People  v.  Ryder,  151  Mich.  187,  114 
N.  W.  1021.  In  such  case,  where  the  evi- 
dence is  doubtful,  proof  of  character  may  be 
given  with  good  effect.  But  still,  even  with 
regard  to  the  higher  crimes,  evidence  of 
good  character,  though  of  less  avail,  is  com- 
petent evidence  to  the  jury,  and  a  s] 
of  evidence  which  me  accused  has  a  right 
to  offer.  But  it  behooves  one  charged  with 
an  atrocious  crime,  like  murder,  to  prove 
a  high  character,  and  by  Btrong  evidence, 
to  make  it  counterbalance  a  strong  amount 
of  proof  on  the  part  of  the  prosecution.  It 
is  the  privilege  of  the  accused  to  put  his 
character  in  issue,  or  not.  Lewis  v.  .Stale. 
93  Miss.  697,  47  South.  467.  If  he  does,  and 
offers  evidence  of  good  character,  then  the 
prosecution  may  give  evidence  to  rebut  and 


CHARACTER 


458 


CHARACTER 


counteract  it.  But  it  is  not  competent  for 
the  prosecution  to  give  in  proof  the  bad 
character  of  the  defendant,  unless  he  first 
opens  that  line  of  inquiry  by  evidence  of 
good  character;  Per  Shaw,  C.  J.,  Com.  v. 
Webster,  5  Cush.  (.Mass.)  325,  52  Am.  Dec. 
711:  See  1  Campb.  460;  2  St.  Tr.  1038; 
State  v.  Wells,  1  N.  J.  L.  424,  1  Am.  Dec. 
211;  Nash  v.  Gilkeson,  5  S.  &  R.  (Pa.)  352; 
Gregory  v.  Thomas,  2  Bibb  (Ky.)  2S6,  5  Am. 
Dec.  608;  Grannis  v.  Branden,  5  Day  (Conn.) 
260,  5  Am.  Dec.  143;  Humphrey  v.  Hum- 
phrey, 7  Conn.  116;  Fowler  v.  Ins.  Co.,  6 
Cow.  (N.  Y.)  673,  16  Am.  Dec.  460;  Jeffries 
v.  Harris,  10  N.  C.  105;  Felsenthal  v.  State, 
30  Tex.  App.  675,  18  S.  W.  644;  State  v. 
Ellwood,  17  R.  I.  763,  24  Atl.  7S2 ;  Carter 
v.  State,  36  Neb.  481,  54  N.  W.  853;  Smoth- 
ers v.  City  of  Jackson,  92  Miss.  327,  45 
South.  982. 

Where,  in  a  criminal  trial,  no  evidence 
has  been  offered,  there  is  a  presumption  of 
good  character,  as  to  which  the  jury  should, 
on  his  request,  be  instructed ;  it  is  error  for 
the  court  to  comment  unfavorably  upon  the 
character  of  the  accused ;  Mullen  v.  U.  S., 
106  Fed.  S95,  46  C.  C.  A.  22 ;  and  a  prosecut- 
ing officer  may  not  appeal  to  the  jury  to 
assume  that  his  character  was  bad,  because 
he  had  produced  no  evidence  to  the  con- 
trary; Lowdon  v.  U.  S.,  149  Fed.  673,  79  C. 
C.  A.  361;  Gater  v.  State,  141  Ala.  10,  37 
South.  692;  McQuiggan  v.  Ladd,  79  Vt.  90, 
64  Atl.  503,  14  L.  R.  A.  (N.  S.)  6S9 ;  People 
v.  Van  Gaasbeck,  189  N.  Y.  40S,  82  N.  E. 
718,  22  L.  R.  A.  (N.  S.)  650,  12  Ann.  Cas. 
745. 

In  a  trial  for  rape  there  is  no  presumption, 
in  the  absence  of  proof  to  the  contrary,  that 
the  defendant  was  of  good  character.  Ad- 
dison v.  People,  193  111.  405,  62  N.  E.  235. 

On  the  trial  of  an  indictment  for  homi- 
cide, evidence  offered  generally  to  prove 
that  the  deceased  was  well  known,  and  un- 
derstood to  be  a  quarrelsome,  riotous,  and 
savage  man,  is  inadmissible ;  1  Whart.  Cr. 
L.  §  641;  see  Perry  v.  State,  94  Ala.  25,  10 
South.  650;  Com.  v.  Straesser,  153  Pa.  451, 
26  Atl.  17 ;  but  for  the  purpose  of  showing 
that  the  homicide  was  justifiable  on  the 
ground  of  self-defence,  proof  of  the  charac- 
ter of  the  deceased  may  be  admitted,  if  it 
is  also  shown  that  the  prisoner  was  influ- 
enced by  his  knowledge  thereof  in  commit- 
ting the  deed;  Marts  v.  State,  26  Ohio  St. 
162;  Garner  v.  State,  28  Fla.  113,  9  South. 
835,  29  Am.  St.  Rep.  232;  but  in  a  civil  ac- 
tion for  damages  for  homicide  which  defend- 
ant alleges  was  committed  in  self-defence 
evidence  of  good  character  was  held  not  ad- 
missible; Morgan  v.  JtJarnhill,  118  Fed.  24, 
55  C.  C.  A.  1.  The  general  reputation  of 
the  deceased  as  a  violent  and  dangerous  per- 
son is  presumptive  proof  of  knowledge  of 
decedent's  character;  Trabune  v.  Com.  (Ky.) 
17  S.  W.  186.  Unless  the  character  of  the 
deceased  is  attacked,  it  is   clearly   not  ad- 


missible for  the  prosecution  to  prove  its 
peaceableness ;  Davis  v.  People,  114  111.  86, 
29  N.  E.  192.  Good  character  will  not  avail 
one  if  the  crime  has  been  proven  beyond  a 
reasonable  doubt;  People  v.  Sweeney,  133 
N.  Y.  609,  30  N.  E.  1005;  Hathcock  v.  State, 
88  Ga.  91,  13  S.  E.  959;  Kistler  v.  State, 
54  Ind.  400;  People  v.  Jassino,  100  Mich. 
536,  59  N.  W.  230;  contra,  Com.  v.  Cate, 
220  Pa.  13S,  69  Atl.  322,  123  Am.  St.  Rep. 
6S3.  It  is  erroneous  to  instruct  a  jury  that 
evidence  of  good  character  can  only  be  con- 
sidered when  the  question  of  guilt  or  inno- 
cence is  in  doubt ;  Rowe  v.  U.  S.,  97  Fed. 
779,  3S  C.  C.  A.  496;  State  v.  Dickerson,  77 
Ohio  St.  34,  82  N.  E.  969,  122  Am.  St.  Rep. 
479,  11  Ann.  Cas.  1181.  In  a  criminal  case 
the  defendant  has  the  right  to  prove  his 
reputation  for  honesty  and  truth ;  Browder 
v.  State,  30  Tex.  App.  614,  18  S.  W.  197; 
though  he  be  indicted  for  murder  by  poison- 
ing, he  can  show  his  reputation  for  peace 
and  quietude;  Hall  v.  State,  132  Ind.  317, 
31  N.  E.  536. 

In  a  prosecution  for  theft,  the  accused 
may  prove  his  reputation  for  honesty  and 
integrity,  but  not  particular  acts;  Leonard 
v.  State,  53  Tex.  Cr.  R.  187,  109  S.  W.  149; 
nor  special  traits  or  particular  instances  not 
bearing  on  the  peculiar  nature  of  the  crime 
charged ;  Arnold  v.  State,  131  Ga.  494,  62  S. 
E.  S06.  .  Proof  of  previous  occupations  and 
of  family  history  is  inadmissible ;  State  v. 
Clem,  49  Wash.  273,  94  Pac.  1079.  It  is 
competent  for  a  witness  to  testify  that  he 
has  never  heard  the  reputation  of  the  de- 
fendant questioned;  fetate  v.  McClellan,  79 
Kan.  11,  98  Pac.  209,  17  Ann.  Cas.  106; 
Foerster  v.  U.  S.,  116  Fed.  860,  54  C.  C. 
A.  210,  but  proof  that  he  has  never  before 
been  arrested  or  accused  of  crime  is  incom- 
petent; State  v.  Marfaudille,  48  Wash.  117, 
92  Pac.  939,  14  L.  R.  A.  (N.  S.)  346,  15  Ann. 
Cas.  584. 

It  is  proper  to  cross-examine  a  witness 
who  has  testified  to  the  defendant's  reputa- 
tion for  peace  and  quiet,  as  to  how  many 
men  she  had  heard  he  had  shot;  People 
v.  Laudiero,  192  N.  Y.  304,  85  N.  E.  132. 

In  an  action  by  a  locomotive  engineer  for 
injury  resulting  from  a  collision,  evidence 
that  he  frequently  had  slept  at  his  post,  and 
run  by  stations  where  he  should  have  stop- 
ped, was  properly  excluded ;  Missouri,  K.  & 
T.  R.  Co.  v.  Johnson,  92  Tex.  380,  48  S.  W. 
568. 

In  some  instances,  evidence  in  disparage- 
ment of  character  is  admissible,  not  in  order 
to  prove  or  disprove  the  commission  of  a 
particular  fact,  but  with  a  view  to  damages. 
In  actions  for  criminal  conversation  with 
the  plaintiff's  wife,  evidence  may  be  given 
of  the  wife's  general  bad  reputation  for 
want  of  chastity,  and  even  of  particular  acts 
of  adultery  committed  by  her  previous  to 
her  intercourse  with  the  defendant ;  Whart. 
Ev.  51;   Bull.  N.  P.  27,  296;  12  Mod.   232: 


CHARACTER 


459 


CHARACTER 


3  Esp.  23G ;  and  a  wife  who  has  confessed 
her  adultery  cannot  prove  previous  good 
conduct;  State  v.  Foster,  136  (a.  527,  114 
N.  W.  36.  See  Ligon  v.  Ford,  5  Munf.  (Va.) 
10.  As  to  the  statutory  use  of  the  word 
"character,"  sec  Carpenter  v.  People,  8  Barb. 
(N.  V.)  603;  People  v.  Kenyon,  5  Park.  Cr. 
C.  (N.  Y.)  254;  Andre  v.  State,  5  la.  389,  68 
Am.  Dec.  70S;  Boal;  v.  Slate,  5  la.  430; 
v.  Prizer,  -1!)  [a.  531,  31  Am.  Rep.  155. 

In  actions  for  slander  or  libel,  the  law  is 
well  settled  that  evidence  of  the  previous 
general  character  of  the  plaintiff,  before 
and  at  the  time  of  the  publication  of  the 
slander  or  libel,  is  admissible,  under  the 
general  issue,  in  mitigation  of  damages. 
The  ground  of  admitting  such  evidence  is 
that  a  person  of  disparaged  fame  is  not  en- 
titled to  the  same  incisure  of  damages  as 
one  whose  character  is  unblemished.  Anu 
the  reasons  which  authorize  the  admission 
of  this  species  of  evidence  under  the  gi 
issue  alike  exist,  and  require  its  admission, 
where  a  justification  has  been  pleaded  but 
the  defendant  has  failed  in  sustaining  it; 
Stone  v.  Varney,  7  Mete.  (Mass.)  86,  39  Am. 
Dec.  702 ;  where  the  decisions  are  collected 
and  reviewed;  Hamer  v.  McFarlin,  4  Denio 
(N.  Y.)  509;  Bowen  v.  Hall,  20  Vt.  232; 
Steinman  v.  McWilliams,  0  Pa.  170;  Eifcrt 
v.  Sawyer,  2  Nott  &  McC.  (S.  C.)  511,  10 
Am.  Dec.  633.  When  evidence  is  admitted 
touching  the  general  reputation  of  a  per- 
son, it  is  manifest  that  it  is  to  be  confined 
to  matters  in  reference  to  the  nature  of 
the  charge  against  him;  Douglass  v.  Tousey, 
2  Wend.  (N.  Y.)  352,  20  Am.  Dec.  61G.  See 
People  v.  Cowgill,  93  pal  596,  29  Pac.  22S. 

In  an  action  for  damages  for  assault  and 
battery  it  is  error  to  admit  evidence  of  de- 
fendant's good  character;  Pokriet'ka  v. 
Mackurat,  91  Mich.  399,  51  N.  W.  1059; 
Sturgeon  v.  Sturgeon,  4  Ind.  App.  232,  30  N. 
E.  S05. 

The  party  against  whom  a  witness  is  called 
may  disprove  the  facts  stated  by  him,  or 
may  examine  other  witnesses  as  to  his  gen- 
eral character;  but  they  will  not  be  allowed 
to  speak  of  particular  facts  or  parts  of  his 
conduct;  Bull.  N.  P.  296;  State  v.  Rose,  47 
Minn.  47,  49  N.  W.  404.  For  example,  evi- 
dence of  the  general  character  of  a  prose- 
cutrix for  a  rape  may  be  given,  as  that  she 
was  a  street-walker;  but  evidence  of  specific 
acts  of  criminality  cannot  be  admitted;  :;  C. 
&  P.  589.  And  see  Cadwell  v.  State.  17  Conn. 
467;  Low  v.  Mitchell,  18  Me.  372;  Common- 
wealth v.  Murphy,  14  Mass.  387;  5  Cox,  Cr. 
Cas.  146.  The  regular  mode  is  to  inquire 
whether  the  witness  under  examination  has 
the  means  of  knowing  the  former  witness's 
general  character,  ami  whether,  from  such 
knowledge,  he  would  believe  him  on  his  oath; 
4  St.  Tr.  693;  4  Esp.  102;  Knode  v.  William- 
son, 17  Wall.  (U.  S.)  5S6,  21  L.  Ed.  670.  In 
answer  to  such  evidence  against  character, 
the  other  party  may  cross-examine  the  wit- 


ness as  to  his  means  of  k;  "\vledge  and  the 
grounds    of    his    opinion,    or   he  n. 
such    witness's    general  1     1  y 

fresh  evidence  support  t  of  his 

own;  2  Stark.  151,  241;  Stark.  Ev.  pt  1.  17:.:: 
to   nr.s;   l   I'hiii.  Ev.  229.     A   , 
give  evidence  to  confirm  the 
of    a    witness,    unless    his    genera! 
has  been  impugned  by  his  ant 
dee  v.  Brownfield,  9  Watts  (Pa.)   124; 
v.  Cooper,  71   Mo.   436;   Fitzgerald   v. 
99  ind.  li^s;  Turner  v.  Commonwealth,  - 
74,  27  Am.  Rep.  683;  Atwood  v.  Dearborn,  1 
Allen  (Mass.)  483,  79  Am.  'Dec.  7 
See  note  in  14  L.  R.  A.  (N.  S.)  689. 

CHARGE.  A  duty  or  obligation  imposed 
upon  some  person.     A  lien.  Incumbrance,  or 

claim  which  is  to  be  satisfied  out  of  the 
ic  thing  or  proceeds  thereof  to  which 
it  applies. 

To  impose  such  an  obligation;  to  create 
such  a  claim. 

To  accuse. 

The  distinctive  significance  of  the  term  rests  In 
the  idea  of  obligation  directly  bearing  upon  the  In- 
dividual thing  or  person  to  be  affected,  and  binding 
him  or  It  to  the  discharge  of  the  duty  or  satisfac- 
tion of  the  claim  imposed.  Thus,  charging  an  estate 
with  the  payment  of  a  debt  is  appropriating  a  defi- 
nite portion  to  the  particulor  purpose  ;  charging  a 
person  with  the  commission  of  a  crime  is  pointing 
out  the  individual  who  Is  bound  to  answer  for  the 
wrong  committed;  charging  a  jury  is  stating  the 
precise  principles  of  law  applicable  to  the  case  im- 
mediately in  question.  In  this  view,  a  charge  will. 
In  general  terms,  denote  a  responsibility  peculiar  to 
the  person  or  thing  affected  and  authoritatively  im- 
posed, or  the  act  fixing  such  responsibility. 

In  Contracts.  An  obligation,  binding  upon 
him  who  enters  into  it,  which  may  be  re- 
moved or  taken  away  by  a  discharge.  Ter- 
mes  de  la  Ley. 

An  undertaking  to  keep  the  custody  of 
another  person's  goods. 

An  obligation  entered  into  by  the  owner 
of  an  estate,  which  hinds  the  estate  for  its 
performance.  Comyns,  Dig.  Rent,  c.  6;  2 
Ball  &  B.  223. 

In  Devises.  A  duty  imposed  upon  a  devi- 
see, either  personally,  or  with  respect  to  the 
estate  devised.  It  may  be  the  payment  of 
a  legacy  or  sum  of  money  or  an  annuity, 
the  care  and  maintenance  of  a  relative  or 
other  person,  the  discharge  of  an  existing 
lien  upon  land  devised  or  the  payment  of 
debts,  or,  in  short,  the  performance  of  any 
duty  or  obligation  which  may  be  lawfully 
Imposed  as  a  condition  of  the  enjoyment 
of  the  bounty  of  a  testator.  A  charge  is 
not  an  interest  in.  but  a  lien  upon,  lands; 
Potter  v.  Gardner,  1-  Wheat.  (V.  s.)  498, 
(5  L.  Ed.  70C;  Thayer  v.  Finnegan,  134  Mass. 
62,  45  Am.  Rep.  285;  Appeal  of  Walter.  95 
Pa.  .'iiir,:  1  Ves.  &  B.  260;  it  will  not  be  -li- 
ve-lid  by  a  sheriff's  sale:  Kohn  v.  Odenwel- 
der.  162  Pa.  346,  29  Atl.  S99. 

Where  a  charge  is  personal,  and  there  are 
no  words  of  limitation,  the  devisee  will  gen- 
erally take  the  fee  of  the  estate  devised;  4 
Kent  540;  2  Bla.  Com.  10S;  Jackson  v.  Mer- 


CHARGE 


460 


CHARGE 


rill,  6  Johns.  (N.  Y.)  185,  5  Am.  Dec.  213; 
Wait  v.  Belding,  24  Pick.  (Mass.)  139;  but 
he  will  take  only  a  life  estate  if  it  be  upon 
the  estate  generally;  14  Mees.  &  W.  60S; 
Gardner  v.  Gardner,  3  Mas.  209,  Fed.  Cas. 
No.  5,227;  Wright  v.  Denn,  10  Wheat.  (U. 
S.)  231,  6  L.  Ed.  303;  Jackson  v.  Martin,  18 
Johns.  (N.  Y.)  35;  McLellan  v.  Turner,  15 
Me.  436;  Lithgow  v.  Kavenagh,  9  Mass.  161 ; 
Spraker  v.  Van  Alstyne,  18  Wend.  (N.  Y.) 
200;  unless  the  charge  be  greater  than  a 
life  estate  will  satisfy;  6  Co.  16;  4  Term 
93;  Olmsted  v.  Harvey,  1  Barb.  (N.  Y.)  102; 
Wait  v.  Belding,  24  Pick.  (Mass.)  138;  1 
Washb.  R.  P.  59.  See  9  L.  R.  A.  584,  n., 
Legacy. 

In  Equity  Pleading.  An  allegation  in  the 
bill  of  matters  which  disprove  or  avoid  a 
defence  which  it  is  alleged  the  defendant  is 
supposed  to  pretend  or  intend  to  set  up. 
Story,  Eq.  PI.  §  31. 

It  is  frequently  omitted,  and  this  the 
more  properly,  as  all  matters  material  to 
the  plaintiff's  case  should  be  fully  stated  in 
the  stating  part  of  the  bill;  Cooper,  Eq.  PI. 
11;  1  Dan.  Ch.  Pr.  372,  1883,  n.;  11  Ves.  Ch. 
574.     See  2  Hare,  Ch.  264. 

In  Practice.  The  instructions  given  by  the 
court  to  the  grand  jury  or  inquest  of  the 
county,  at  the  commencement  of  their  ses- 
sion, in  regard  to  their  duty. 

The  exposition  by  the  court  to  a  petit  jury 
of  those  principles  of  the  law  which  the 
latter  are  to  apply  in  order  to  render  such 
a  verdict  as  will,  in  the  state  of  facts  proved 
at  the  trial  to  exist,  establish  the  legal  rights 
of  the  parties  to  the  suit. 

It  formerly  preceded  the  addresses  of 
counsel  to  the  jury;  Thayer,  Evid.;  and  that 
is  still  the  practice  in  the  federal  district 
court  in  Maryland.  It  usually  includes  a 
summing  up  of  the  facts. 

The  essential  idea  of  a  charge  is  that  it  is  au- 
thoritative as  an  exposition  of  the  law,  which  the 
jury  are  bound  by  their  oath  and  by  moral  obliga- 
tions to  obey  ;  Com.  v.  Porter,  10  Mete.  (Mass.)  285- 
287;  Pierce  v.  State,  13  N.  H.  536;  Townsend  v. 
State,  2  Blackf.  (Ind.)  162 ;  Davenport  v.  Com.,  1 
Leigh  (Va.)  588;  Montee  v.  Com.,  3  J.  J.  Marsh. 
(Ky.)  150;  21  How.  St.  Tr.  1039;  Kane  v.  Com.,  89 
Pa.  522,  33  Am.  Rep.  787.  See  5  South.  L.  Rev.  352  ; 
1  Crim.  L.  Mag.  51 ;  3  id.  484.  This  is  the  rule  in  the 
federal  courts  ;  Sparf  v.  U.  S.,  156  U.  S.  51,  15  Sup. 
Ct.  273,  39  L.  Ed.  343  ;  Alabama;  Pierson  v.  State, 
12  Ala.  153  ;  Arkansas  ;  Pleasant  v.  State,  13  Ark. 
360 ;  Sweeney  v.  State,  35  Ark.  585;  California; 
People  v.  Anderson,-  44  Cal.  65;  Kentucky;  Com. 
v.  Van  Tuyl,  1  Mete.  1,  71  Am.  Dec.  455 ;  Maine ; 
State  v.  "Wright,  53  Me.  336;  Massachusetts;  Com. 
v.  Porter,  10  Mete.  286;  Com.  v.  Anthes,  5  Gray 
185;  Michigan;  People  v.  Mortimer,  48  Mich.  37,  11 
N.  W.  776;  Mississippi;  Bangs  v.  State,  61  Miss. 
363;  Missouri;  Hardy  v.  State,  7  Mo.  607;  Ne- 
braska ;  Parrish  v.  State,  14  Neb.  60,  15  N.  W.  357  ; 
New  Hampshire ;  Pierce  v.  State,  13  N.  H.  536 ; 
New  York;  People  v.  Bennett,  49  N.  Y.  141;  North 
Carolina ;  State  v.  Peace,  46  N.  C.  251 ;  Ohio ; 
Adams  v.  State,  29  Ohio  St.  412 ;  Pennsylvania ; 
Com.  v.  McManus,  143  Pa.  64,  21  Atl.  1018,  22  Atl. 
761,  14  L.  R.  A.  89;  South  Carolina;  State  v.  Draw- 
dy,  14  Rich.  87;  Texas;  Pharr  v.  State,  7  Tex.  App. 
472.  By  statute,  in  some  states,  the  jury  are  con- 
stituted judges  of  the  law  as  well  as  of  the  facts  in 
criminal  cases, — an  arrangement  which   assimilates 


the  duties  of  a  judge  to  those  of  the  moderator  of  a 
town-meeting  or  of  the  preceptor  of  a  class  of  law- 
students,  besides  subjecting  successive  criminals 
to  a  code  of  laws  varying  as  widely  as  the  impulses 
of  successive  juries  can  differ.  It  is  so  in  Georgia ; 
Oneil  v.  State,  48  Ga.  66  ;  Illinois  ;  Board  of  Super's 
of  Clay  County  v.  Plant,  42  111.  331;  Indiana  ;  An- 
derson v.  State,  104  Ind.  467,  4  N.  E.  63,  5  N.  E. 
711;  Louisiana;  State  v.  Ford,  37  La.  Ann.  444; 
Maryland  ;  Forwood  v.  State,  49  Md.  531 ;  Tennes- 
see; Nelson  v.  State,  2  Swan  237;  and  Vermont; 
State  v.  Croteau,  23  Vt.  14,  54  Am.  Dec.  90.  Even 
in  these  states,  however,  the  courts  have  tried  to 
escape  from  this  doctrine,  and  have  of  late  years 
practically  nullified  it  in  many  instances.  See  Hab- 
ersham v.  State,  56  Ga.  61 ;  Bell  v.  State,  57  Md.  108  ; 
Mullinix  v.  People,  76  111.  211 ;  State  v.  Ford,  37  La. 
Ann.  449  ;  State  v.  Hopkins,  56  Vt.  263.  The  charge 
frequently  and  usually  includes  a  summing  up  of 
the  evidence,  given  to  show  the  application  of  the 
principles  involved ;  and  In  English  practice  the 
term  summing  up  is  used  instead  of  charge. 
Though  this  is  customary  in  many  courts,  the  judge 
is  not  bound  to  sum  up  the  facts ;  Thomps.  Charg- 
ing Juries  §  79;  State  v.  Morris,  10  N.  C.  390.  But 
if  he  do  sum  up  he  must  present  all  the  material 
facts;  Parker  v.  Donaldson,  6  W.  &  S.  (Pa.)  132; 
Merchants'  Bank  of  Macon  v.  Bank,  1  Ga.  428,  44 
Am.  Dec.  665.  This  is  the  practice  in  the  courts  of 
the  United  States ;  United  States  Exp.  Co.  t. 
Kountze  Bros.,  8  Wall.  342,  19  L.  Ed.  457. 

It  should  be  a  clear  and  explicit  state- 
ment of  the  law  applicable  to  the  condition 
of  the  facts ;  Finch's  Ex'rs  v.  Elliot,  11  N. 
C.  61;  Cannon  v.  Alsbury,  1  A.  K.  Marsh. 
(Ky.)  76,  10  Am.  Dec.  709;  Williams  v. 
Cheesebrough,  4  Conn.  350;  Van  Hoesen  v. 
Van  Alstyne,  3  Wend.  (N.  Y.)  75;  Com.  v. 
White,  10  Mete.  (Mass.)  14;  Com.  v.  Porter, 
10  Mete.  (Mass.)  263 ;  Coleman  v.  Roberts, 
1  Mo.  97;  Jenness  v.  Parker,  24  Me.  289 ;  Lett 
v.  Horner,  5  Blackf.  (Ind.)  296;  Whiteford 
v.  Burckmyer  &  Adams,  1  Gill  (Md.)  127, 
39  Am.  Dec.  640 ;  People  v.  Murray,  72  Mich. 
10,  40  N.  W.  29.  The  defendant  in  a  criminal 
case  is  entitled  to  a  full  statement  of  the 
law  from  the  court;  Bird  v.  U.  S.,  ISO  U.  S. 
356,  21  Sup.  Ct  403,  45  L.  Ed.  570.  The 
charge  should  add  such  comments  on  the 
evidence  as  are  necessary  to  explain  its  ap- 
plication ;  Ware  v.  Ware,  8  Greenl.  (Me.) 
42;  Kinloch  v.  Palmer,  1  Mill,  Const.  (S.  C.) 
216;  Nieman  v.  Ward,  1  W.  &  S.  (Pa.)  6S ; 
Wyley  v.  Stanford,  22  Ga.  3S5  (though  in 
some  states  the  court  is  prohibited  by  law 
from  charging  as  to  matters  of  fact,  "but 
may  state  the  testimony  and  the  law;"  e.  g., 
California,  Tennessee,  South  Carolina,  Geor- 
gia, Massachusetts,  etc.);  and  may  include 
an  opinion  on  the  weight  of  evidence ;  Mitch- 
ell v.  Harmony,  13  How.  (U.  S.)  115,  14  L. 
Ed.  75;  2  M.  &  G.  721;  Cook  v.  Brown,  34 
N.  H.  460;  Swift  v.  Stevens,  8  Conn.  431; 
Dunlap  v.  Patterson,  5  Cow.  (N.  Y.)  243; 
Hinson  v.  King,  50  N.  C.  393;  though  the 
rule  is  otherwise  in  some  states ;  Frame  v. 
Badger,  79  111.  441;  Wannack  v.  Mayor, 
etc.,  of  City  of  Macon,  53  Ga.  162;  Jenkins 
v.  Tobin,  31  Ark.  307;  Barnett  v.  State,  83 
Ala.  40,  3  South.  612;  State  v.  Huffman, 
16  Or.  15,  16  Pac.  640;  People  v.  Gastro,  75 
Mich.  127,  42  N.  W.  937 ;  but  should  not  un- 
dertake to  decide  the  facts;  Fightmaster  v. 


CHARGE 


461 


CHARGE 


Beasly,  7  J.  J.  Marsh.  (Ky.)  410;  Sullivan  v. 
Enders,  3  Dana  (Ky.)  60 ;  Beekman  v.  Beams, 
7  Cow.  (N.  Y.)  29;  Planters'  Bank  of  Prince 
George's  County  v.  Bank,  10  Gill  &  J.  (Md.) 
346;  State  v.  Lynott,  5  R.  I.  295;  unless  in 
the  entire  absence  of  opposing  proof ;  Chase 
v.  Breed,  5  Gray  (Mass.)  440;  Nichols  v. 
Goldsmith,  7  Wend.  (N.  Y.)  160;  Rippey  v. 
Friede,  26  Mo.  523;  Jones'  Ex'rs  v.  Mengel, 
1  Pa.  68.  A  United  States  court  may  ex- 
press an  opinion  upon  the  facts;  Lovejoy  v. 
U.  S.,  128  U.  S.  171,  9  Sup.  Ct  57,  32  L.  Ed. 
389;  Sorenson  v.  R.  Co.,  36  Fed.  166.  In 
federal  courts  the  trial  judge  may  express 
his  opinion  on  the  facts,  while  leaving  them 
to  the  jury;  this  power  is  not  controlled  by 
state  statutes  forbidding  judges  to  express 
any  opinion  on  the  facts;  Vicksburg  &  M.  R. 
Co.  v.  Putnam,  118  U.  S.  545,  7  Sup.  Ct.  1, 
30  L.  Ed.  257.  It  is  improper  to  instruct 
which  of  two  conflicting  theories  of  the  evi- 
dence the  jury  shall  accept;  Mitchell  v. 
State,  94  Ala.  68,  10  South.  331.  The  pre- 
siding judge  may  express  to  the  jury  his 
opinion  as  to  the  weight  of  evidence.  He 
Is  under  no  obligation  to  recapitulate  all 
the  items  of  the  evidence,  nor  even  all  bear- 
ing on  a  single  question;  Allis  v.  D.  S.,  155 
U.  S.  117,  15  Sup.  Ct.  36,  39  L.  Ed.  91. 

Failure  to  give  instructions  not  asked 
for  is  not  error;  Winn  v.  State,  82  Wis.  571, 
52  N.  W.  775;  People  v.  Ahern,  93  Cal.  518, 
29  Pac.  49;  Mead  v.  State,  53  N.  J.  L.  601, 
23  Atl.  264;  Small  v.  Williams,  87  Ga.  681, 
13  S.  E.  589.  A  request  to  charge  is  prop- 
erly refused  though  embodying  correct  prin- 
ciples, where  there  is  no  evidence  to  support 
it;  Bostic  v.  State,  94  Ala.  45,  10  South. 
602;  Com.  v.  Cosseboom,  155  Mass.  298,  29 
N.  E.  463;  Page  v.  Alexander,  84  Me.  S4,  24 
Atl.  584 ;  Frost  v.  Lumber  Co.,  3  Wash.  241, 
28  Pac.  354,  915;  Everitt  v.  Walker,  109  N. 
C.  132,  13  S.  E.  860;  Guernsey  v.  Greenwood, 
88  Ga.  446,  14  S.  E.  709 ;  Floyd  v.  Efron,  66 
Tex.  221,  18  S.  W.  497:  Kitchen  v.  McClos- 
key,  150  Pa.  376,  24  Atl.  688,  30  Am.  St.  Rep. 
811;  New  York  &  C.  Mining  Co.  v.  Fraser, 
130  U.  S.  611,  9  Sup.  Ct.  665,  32  L.  Ed.  1031 ; 
City  of  Rock  Island  v.  Cuinely,  126  111.  40S, 
18  N.  E.  753;  Spoonemore  v.  State,  25  Tex. 
App.  358,  8  S.  W.  280.  A  request  to  charge 
may  be  disregarded  when  the  court  has  al- 
ready fully  instructed  the  jury  on  the  point. 
The  court  should  refuse  to  charge  upon  a 
purely  hypothetical  statement  of  facts  cal- 
culated to  mislead  the  jury;  White  v.  Van 
Horn,  159  U.  S.  3,  15  Sup.  Ct.  1027,  40  L. 
Ed.  55.  A  judge  is  not  bound  to  charge  a 
jury  in  the  exact  words  proposed  to  him  by 
counsel,  and  there  is  no  error  if  he  instructs 
the  jury  correctly  and  substantially  covers 
the  relevant  rules  of  law  suggested ;  Cun- 
ningham v.  Springer.  204  U.  S.  647.  27  Sup. 
Ct.  301,  51  L.  Ed.  662,  9  Ann.  Cas.  897. 

Erroneous  instructions  in  matters   of  law 
which    might    have    influenced    the   jury   in 


forming  a  verdict  are  a  cause  for  a 
trial;  Lane  v.  Crombie,  12  Pick.  (Mass.)  177; 
West  v.  Anderson,  9  Conn.  107,  21  Am.  Dec. 
737;  Doe  v.  Paine,  11  N.  C.  ,->4,  15  Am.  Dec. 
507;  even  though  on  hypothetical  quest! 
Etting  v.  Bank,  11  Wheat.  (U.  S.)  59,  0  l.. 
Ed.  419;  Yarborough  v.  Tate,  14  Tex. 
People  v.  Roberts,  6  Cal.  214;  on  which  no 
opinion  can  be  required  to  be  given;  Jor- 
dan v.  James,  5  Ohio,  SS;  Mitchell  v.  Mitch- 
ell, 11  Gill  &  J.  (Md.)  388;  Pollard  v. 
25  N.  C.  470;  Smith  v.  Sasser,  50  N.  C.  388; 
Dunlap  v.  Robinson,  28  Ala.  100;  Whitaker 
v.  Pullen,  3  Humphr.  (Tenn.)  466;  Nicholas 
v.  State,  6  Mo.  6;  Whitney  v.  Goin.  20  N. 
H.  354;  Hammat  v.  Russ,  16  Me.  171;  Miller 
v.  Gorman,  5  Blackf.  (Ind.)  112;  McDaniel 
v.  State,  8  Smedes  &  M.  (Miss.)  401,  47  Am. 
Dec.  93;  Hicks'  Adm'x  v.  Bailey,  16  Tex. 
229;  Raver  v.  Webster,  3  la.  509,  66  Am. 
Dec.  96;  McDougald  v.  Bellamy,  18  Ga.  411; 
but  the  rule  does  not  apply  where  the  in- 
structions could  not  prejudice  the  cause ; 
Johnson  v.  Blackman,  11  Conn.  342 ;  U.  S.  v. 
Wright,  1  McLean,  509,  Fed.  Cas.  No.  16,775; 
Rhett  v.  Poe,  2  How.  (U.  S.)  457,  11  L.  Ed. 
338.  See  Miller  v.  State,  3  Wyo.  057,  2!) 
Pac.  136.  Any  decision  or  declaration  by 
the  court  upon  the  law  of  the  case,  made 
in  the  progress  of  the  cause,  and  by  which 
the  jury  are  influenced  and  the  counsel  con- 
trolled, is  considered  within  the  scope  and 
meaning  of  the  term  "instructions;"  Ilil- 
liard,  New  Trials  255. 

Where  on  a  trial  for  murder  defendant's 
counsel  asks  the  court  to  give  its  chai 
writing,  and  after  complying  it  gives  orally 
other  and  additional  charges,  it  is  cause  for 
new  trial ;  Willis  v.  State,  89  Ga.  188,  15  S. 
E.  32. 

When  an  instruction  to  the  jury  embodies 
several  propositions  of  law,  to  some  of  which 
there  are  no  objections,  the  party  objecting 
must  point  out  specifically  to  the  trial  court 
the  part  to  which  he  objects,  in  order  to 
avail  himself  of  the  objection;  Baltimore  & 
P.  R.  Co.  v.  Mackey,  157  U.  S.  72,  15  Sup. 
Ct.  491,  39  L.   Ed.  624. 

"But  no  charge  delivered  by  a  trial  court 
is  to  be  judged  by  the  same  standards  as  a 
statement  of  law  carefully  elaborated  and 
deliberately  pronounced  by  a  court  of  ap- 
peals,  sitting  in  h<nic.  It  serves  a  very  dif- 
ferent office.  It  is  to  call  the  attention  of 
twelve  men  unfamiliar  with  legal  distinc- 
tions to  whatever  is  necessary  and  proper 
to  guide  them  to  a  right  decision  in  a  par- 
ticular case,  and  to  nothing  more.  To  make 
almost  any  rule  of  law  intelligible  to  the 
ordinary  juror,  it  must  be  expressed  in  a 
few  words.  Qualifications  and  exceptions 
which  the  case  does  not  call  for  are  worse 
than  useless,  and  those  which  are  requisite  it 
may  be  better  to  supply  later,  by  a  separate 
statement.  A  charge  must  be  taken  as  a 
whole  in  determining  its  natural  effect"    Per 


CHARGE 


4G2        CHARITABLE  USES,  CHARITIES 


Baldwin,     J.,    in    Sturdevant's     Appeal,    71 
Conn.  392,  42  Atl.  70. 

See  Thompson,  Charging  Juries. 

CHARGEABLE.  This  word  in  its  ordi- 
nary acceptation,  as  applicable  to  the  im- 
position of  a  duty  or  burden,  signifies  capa- 
ble of  being  charged,  subject,  or  liable  to  be 
charged,  or  proper  to  be  charged,  or  legally 
liable  to  be  charged.  Walbridge  v.  Wal- 
bridge,  46  Vt.  625. 

CHARGE  D'AFFAIRES.  CHARGE  DES 
AFFAIRES.  In  International  Law.  The  ti- 
tle of  a  diplomatic  representative  or  minister 
of  an  inferior  grade,  to  whose  care  are  con- 
fided the  affairs  of  his  nation.  The  term  is 
usually  applied  to  a  secretary  of  legation  or 
other  person  in  charge  of  an  embassy  or 
legation  during  a  vacancy  in  the  office  or 
temporary  absence  of  the  ambassador  or 
minister. 

He  has  not  the  title  of  minister,  and  is  gen- 
erally introduced  and  admitted  through  a 
verbal  presentation  of  the  minister  at  his 
departure,  or  through  letters  of  credence 
addressed  to  the  minister  of  state  of  the 
court  to  which  he  is  sent.  He  has  the  es- 
sential rights  of  a  minister;  1  Kent  39,  n.; 
Du  Pont  v.  Pichon,  4  Dall.  (U.  S.)  321,  1  L. 
Ed.  851.  The  term  charge  des  affaires  is 
sometimes  restricted  to  a  charge  d'affaires 
ad  interim,  who  is  not  accredited  from  one 
Foreign  Office  to  another,  but  who  is  mere- 
ly in  temporary  charge  of  the  affairs  of  the 
mission. 

CHARGES.  The  expenses  which  have 
been  incurred  in  relation  either  to  a  trans- 
action or  to  a  suit.  Thus,  the  charges  in- 
curred for  his  benefit  must  be  paid  by  a 
hirer;  the  defendant  must  pay  the  charges 
of  a  suit.  In  relation  to  actions,  the  term 
includes  something  more  than  the  costs,  tech- 
nically so  called. 

CHARITABLE  USES,  CHARITIES.  Gifts 
to  general  public  uses,  which  may  extend  to 
the  rich  as  well  as  the  poor.  Camden,  Ld. 
Ch.  in  Ambl.  651;  adopted  by  Kent,  Ch., 
Coggeshall  v.  Pelton,  7  Johns.  Ch.  (N.  Y.) 
294,  11  Am.  Dec.  471;  Lyndhurst,  Ld.  Ch., 
in  1  Ph.  Ch.  191;  and  U.  S.  Supreme  Court 
in  Perin  v.  Carey,  24  How.  (U.  S.)  506,  16 
L.  Ed.  701;  Bisp.  Eq.  §  124;  Franklin  v. 
Armfield,  2   Sneed  (Tenn.)  305. 

Gifts  to  such  purposes  as  are  enumerated 
in  the  act  43  Eliz.  c.  4,  or  which,  by  anal- 
ogy, are  deemed  within  its  spirit  or  intend- 
ment.   Boyle,  Char.  17. 

Such  a  gift  was  defined  by  Mr.  Binney  to 
be  "whatever  is  given  for  the  love  of  God 
or  for  the  love  of  your  neighbor,  in  the 
catholic  and  universal  sense — given  from 
these  motives,  and  to  these  ends — free  from 
the  stain  or  taint  of  every  consideration 
that  is  personal,  private,  or  selfish."  Vidal 
v.  Girard,  2  How.  (U.  S.)  128,  11  L.  Ed.  205; 
approved  in  Price  v.  Maxwell,  28  Pa.  35,  and 


Ould   v.    Hospital,   95   U.   S.  311,   24  L.   Ed. 
450. 

Lord  MacNaghten  said  in  [1S91]  A.  C.  531 : 
Charity  in  its  legal  sense  comprises  four 
principal  divisions:  trusts  for  the  relief  of 
poverty,  trusts  for  the  advancement  of  edu- 
cation, trusts  for  the  advancement  of  relig- 
ion, and  trusts  for  other  purposes  beneficial 
to  the  community  not  falling  under  any  of 
the  preceding  heads. 

They  had  their  origin  under  the  Christian  dispen- 
sation,  and  were  regulated  by  the  Justinian   Code. 
Code  Just.  i.  3,  De  Episc.  et  Cler.j   Domat,  b.  2,  t.  2, 
§  6,  1,  b.  4,  t.  2,  §  6,  2;    1  Eq.  Cas.  Abr.  96;    Mr.  Bin- 
ney's  argument  on   the  Girard  will,  p.  40;    Chastel 
on  the  Charity  of  the  Primitive  Churches,  b.  1,  c.  2, 
b.    2,    c.    10;     Codex,    donationem    piarum,    passim. 
Under  that  system,  donations  for  pious  uses  which 
had  not  a  regular  and  determined  destination  were 
liable   to    be    adjudged   invalid,    until    the    edicts    of 
Valentinian  III.  and  Marcian  declared  that  legacies 
in  favor  of  the   poor  should  be  maintained  even   if 
legatees  were  not  designated.     Justinian   completed 
the  work  by  sweeping  all  such  general  gifts  into  the 
coffers    of  the    church,    to   be    administered   by    the 
bishops.     The  doctrine  of  pious  uses  seems  to  have 
passed  directly  from  the  civil  law  into  the  law  of 
England ; '    Inglis   v.    Sailor's    Snug    Harbor,    3   Pet. 
(U.  S.)  100,  139,  7  L.  Ed.  617  ;    Howe,  Studies  in  the 
Civil   Law  68.     It  would  seem  that,   by  the   English 
rule  before  the  statute,  general  and  indefinite  trusts 
for  charity,  especially  if  no  trustees  were  provided, 
were  invalid.    If  sustainable,  it  was  under  the  king's 
prerogative,    exercising    in    that    respect    a    power 
analogous  to  that  of  the  ordinary  in  the  disposition 
of   bona  vacantia   prior  to   the  Statute   of  Distribu- 
tions;   F.  Moore  882,  890;    Duke,  Char.  Uses  72,  362; 
1  Vern.  224,  note;    1  Eq.  Cas.  Abr.  96,  pi.  8  ;    1  Ves. 
Sen.  225  ;    Hob.  136 ;    Chitten,den  v.  Chittenden,  1  Am. 
L.  Reg.  545.     The  main  purpose  of  the  stat.  43  Eliz. 
c.  4  was  to  define  the  uses  which  were  charitable, 
as   contradistinguished  from  those  which,   after  the 
Reformation  in  England,  were  deemed  superstitious, 
and  to  secure  their   application;    Shelf.   Mortm.  89, 
103.     The   objects   enumerated   in  the   statute   were, 
"Relief  of  aged,  impotent  and  poor  people;    mainte- 
nance of   sick  and  maimed   soldiers   and  mariners, 
schools   of    learning,    free    schools    and    scholars   in 
universities ;      repairs    of    bridges,     ports,    havens, 
causeways,  churches,  seabanks  and  highways;    edu- 
cation and  preferment  of  orphans,   relief,  stock  or 
maintenance  for  houses  of  correction;    marriage  of 
poor  maids  ;     supportation,   aid   and  help  of  young 
tradesmen,    handicraftsmen    and    persons    decayed; 
relief  or  redemption  of  prisoners  or  captives;    aid  or 
ease   of   any   poor  inhabitants  concerning  payments 
of  fifteens,  setting  out  of  soldiers,  and  other  taxes." 
Subsequently    it    appears    that  this    statute,    as    a 
mode   of  proceeding,    fell   into  disuse,   although  un- 
der its   influence   and  by   its   mere   operation   many 
charities  were   upheld  which  would  otherwise  have 
been  void  ;    Shelf.  Mortm.  378,  379,  and  notes  ;    Galle- 
go's  Ex'rs  v.  Attorney  General  3  Leigh  (Va.)  470,  24 
Am.   Dec.  650;    Nelson,  Lex  Test.  137;    Boyle,  Char. 
18  et  seq.;    1  Burn,  Eccl.   Law,  317  a.     Under  this 
statute,   courts   of  chancery   are  empowered  to   ap- 
point commissioners  to  superintend  the   application 
and    enforcement   of    charities ;     and    if,    from    any 
cause,  the  charity  cannot  be  applied  precisely  as  the 
testator  has  declared,  such  courts  exercise  the  pow- 
er in  some  cases  of  appropriating  it,  according  to 
the   principles   indicated  in   the   devise,   as   near   as 
they    can    to    the    purpose    expressed.      And    this    is 
called  an  application  cy  pres;   3  Washb.  R.  P.  514. 
See  Cy  Pkes. 


There  is  no  need  of  any  particular  per- 
sons or  objects  being  specified;  the  general- 
ity and  indefiniteness  of  the  object  con- 
stituting the  charitable  character  of  the  do- 
nation; Boyle,  Char.  23.  A  charitable  use, 
when  neither  law  nor  public  policy  forbids, 


CHARITABLE  USES,  CHARITIES         4G3         CHARITABLE  USES,  CHARITIES 


may  be  applied  to  almost  anything  that 
tends  to  promote  the  well-doing  and  well-be- 
ing of  man;    Perry.   Trusts,    §   687. 

They  embrace  gifts  to  the  poor  of  every 
class,    Including    poor    relations,    where    the 
intention  is  manifest:  Soohan  v.  City  of  Phil- 
adelphia, .33  Pa.  9;  Franklin  v.  Armfield,   2 
Sneed    (Tenn.)    305;  Trustees    of   Dartmouth 
College  v.  Woodward,  4   Wheat.  (U.   S.)  518, 
4  L.  Ed.  629;  Allen  v.  McKean,  1  Sumn.  27G, 
Fed.  Cas.  No.  229;  Chapin  v.  School  District 
No.  2,  33  N.  II.  445;  7  Ch.  D.  714;   for  the 
poor  of  a  county,  "who  by  timely  assistance 
may  be  kept  from  being  carried  to  the  poor 
house;"    State   v.    Grillith,    2   Del.    Ch.    392; 
Griffith  v.  State,  id.  421;  for  the  poor,  though 
the  distribution  of  the  fund  Is   private  and 
to  private  persons ;  Bullard  v.  Chandler,  149 
Mass.  532,  21  N.  E.  951,  5  L.  R.  A.  104;  for 
every     description     of    college    and    school; 
Stevens  v.    Shippen,   28   X.  J.   Eq.   4S7;   City 
of  Cincinnati  v.  McMicken,  0  Ohio  C.  C.  18S; 
Dodge  v.  Williams,  46  Wis.  70,  1  N.  W.  92, 
50  N.  W.  1103 ;  Bedford  v.  Bedford's  Adm'r, 
99  Ky.  273,  35  S.  W.  926;  Handley  v.  Palm- 
er.   103  Fed.  39,  43  C.  C.  A.   100;  Howe  v. 
Wilson,  91  Mo.  45,  3  S.  W.  390,  60  Am.  Rep. 
226  (that  the  state  provides  free  education 
for   children   will   not  render  a   private   be- 
quest for  the  same  purpose  void ;  Tincher  v. 
Arnold,  147  Fed.  665,  77  C.  C.  A.  619,  7  L. 
R.  A.   (N.  S.)  471,  8  Ann.  Cas.   917);   to  all 
institutions    for    the    advancement     of    the 
Christian  religion ;  Alexander  v.   Slavens,   7 
B.    Monr.    (Ky.)    351;    Gibson    v.    Armstrong, 
7    B.    Monr.   (Ky.)   4S1 ;   White   v.    Attorney 
General,  39  N.  C.  19,  44  Am.  Dec.  92;   Ap- 
peal of  Domestic  &  Foreign  Missionary  So- 
ciety, 30  Pa.  425;  to  all  churches;  Inhabitants 
of  Princeton  v.  Adams,  10  Cush.  (Mass.)  129; 
In  Case   of  St.   Mary's   Church,  7   S.   &  R. 
(Pa.)    559;    Johnson    v.    Mayne,    4    la.    ISO; 
Conkliu  v.  Davis,  63  Conn.  377,  28  Atl.  537; 
foreign   missions ;   Kinney  v.   Kinney's  Ex'r, 
S6  Ky.  610,  6  S.  W.  593;  for  the  education  of 
two  young  men  for  all  coming  time  for  the 
Christian    ministry ;    Field    v.    Seminary.    41 
Fed.   371;   the  advancement  of  Christianity 
among  the  infidels;  1  Yes.  Jr.  243;  the  bene- 
fit of  ministers  of  the  gospel;   Trustees   of 
Cory  Universalist  Society  at  Sparta  v.  Beat- 
ty,  28  N.  J.  Eq.  570;  for  distributing  Bibles 
and  religious  tracts;  Winslow  v.  Cummings, 
3  Cush.   (Mass.)   35S;  Pickering  v.  Shut  well. 
10    Pa.    23;    chapels,    hospitals   and    orphan 
asylums;  Soohan  v.  City  of  Philadelphia,  :',:', 
Pa.  0;  Fink  v.  Fink's  Ex'r,  12  La.  Ann.  301; 
Attorney  General  v.  Society,  s  Rich.  Eq.  is. 
C.)    190;    Second    Religious    Society  of   Box- 
ford  v.  Harriman,  125  Mass.  .",21 ;  even  when 
discrimination  is  made  in  favor  of  members 
of  one  religious  denomination;  Burd  Orphan 
Asylum  v.   School    District,  90  Fa.   21  ;   Trus- 
tees  v.  Gutherie,  86  Va.  125,  10  S.  E.  31S,  6 
L.  R.  A.  .".21;  dispensaries;  Beekman  v.  Peo- 
ple,  27  Barb.    (X.    Y.)    260;  public    libraries; 
Crerar  v.    Williams,    145   111.    625,   34   N.   E. 


467,  21  L.  R.  A.  454;  Minns  v.  Billln.  ■ 
Mass.  126,   06  X.   E.  593,   5  L.  B.      , 
686,  !)7  An  420;  and  the  like; 

well  v.  Mott.  L'  Sandf.  Ch.  I 
son  v.  Phillips,  14  Allen 
,V-  S.  594  ;  7  II.  L.  c  ■-■.   l;  ' 
32  Oh.   I).  158;  the   Salvation   An 
D.  528;  educational  trusts;  [1895]  1  CI 
a  volunteer  corps;  [1894]  3  I 
furtherance  of  the  principles  of  f< 
as   advocated    by   certain   named   vegetarian 
societies;    [1898]   1  Ir.    R.  4"1  :    21    T.   L.    E. 
295;    any   religious   society;   [1893]   2    Ch.   41 
(but  not  a  Dominican  convent,  for  the  pro- 
motion   of  private  prayer   by  its   own 
bers;  id.  51);  a  society  for  the  prevention  of 
cruelty    to   animals;    Minna   v.    Billings,    183 
Mass.   126,  66  X.    E.  593,   5   L.   R.   A.    (X.    S .. 
686,   97   Am.    St.    Rep.    420    (but   not   for   the 
maintenance   of  animals;    so    also    ."" 
B.   545);  41  Ch.  D.  552;  [1895]  2  Ch.  501;  a 
drinking  fountain    for  horses;    In  re   I 
Of  Graves,  242  111.  23,  89  X.  E.  072.  24  L.   R. 
A.  (X.  S.)  2S3,  134  Am.  St.  Bep.  302,  17  Ann. 
Cas.  137;   to  repair  a  sea  dyke;  38  Ch.   I). 
507;  to  provide  a  scholarship;   [1895]   1  Ch. 
4S0;  to  repair  a  churchyard;  33  Ch.  D.  1S7; 
to  form  a  fund  for  pensioning  old  and  worn- 
out  clerks  of  a  certain  firm;  48  W.  B.  300; 
to    recompense    such    persons    as    shall    an- 
nually ring  a  peal  of  bells  in  a  designated 
parish   to   commemorate  the   restoration   of 
the  monarchy  to  England;  [1906]  2  Ch.   184; 
to  establish  a  cemetery;  Hunt  v.  Toi; 
Vt.  48,  52  Atl.  1042;   or  maintain   one;    Bol- 
lins   v.   Merrill,   70  X.    II.  436,   48   Atl.    L088 
{contra,  In   re  Corle,  61   X.   J.    Eq.   409,    48 
Atl.  1027)  ;  (but  not  to  repair  a  tomb;  L.  R. 
4    Eq.    521  ;    Kelly    v.    Nichols,    IS    R.    I.    02, 
25  Atl.   840,  19   L.  R.  A.   413;    nor  to  erect 
a  monument  to  a  parent;  35  C.  C.   R.  505; 
nor    to    keep   a    testator's   clock    in    repair; 
Kelly  v.  Nichols,  17  R.  I.   306,   21    Atl.   906; 
nor  for  the  purpose  of  cleaning  a   painting 
every  four  years;  70  L.  J.  Ch.  42;  nor  to  en- 
courage sport;  [isor,]  2  Ch.  649;  nor  a  be- 
quest to  general  public  purposes;    ("lesson's 
Appeal,   30    Pa.   437;   as   supplying   water   or 
light   to   towns,   building   roads  and    h;  i 
keeping  them  in  repair,  etc.;  Town  of  Ham- 
den  v.  Rice,  24  Conn.  350;)    and  to  the  ad- 
vancement  of   religion    and    other   charitable 
purposes  general  in  their  character;  Derby  v. 
Derby,  4    R.    1.   411;    Fink   v.   Fink's  Ex'r.   12 
La.   Ann.  301;   Ilullman  v.   Honcomp,   5  Ohio 
St.  237;   Brendle  v.  German  Reformed  Con- 
gregation. ;;;;   pa.  415;    Bethlehem    Bo] 
v.  Fire  Co..  81   Pa.  445;  Lewis'  Estate, 
Pa.  477.  2.")  Atl.  878;  Sweeney  v.   Samps 
Ind.  405;  L.  II.  10  Eq.  210;  L.  R.  1  Eq.  585; 
L.    R.    4    Ch.    App.    309;    L.    R.    20    Eq. 
Holmes  v.   I  226,  ::i    [ 

190;   I  hidden  v.  Dandy.  51  X.  J.  Eq.  154,  26 
Atl.   464,   .".2  L.  R.   A.   02.1;   []-  n.  41; 

Union  Pae.  R.   Co.  v.  Artisi.  60  Fed.  : 
C.  C.  A.  14,  23  L.  R.   A.  581;  Tudor,   Char. 
Tr.;  or  a  devise  may  be  made  to  a  municipal 


CHARITABLE  USES,  CHARITIES         464         CHARITABLE  USES,  CHARITIES 


corporation  for  charitable  uses;  Vidal  v.  Gir- 
ard,  2  How.  (U.  S.)  128,  11  L.  Ed.  205;  Bark- 
ley  v.  Donnelly,  112  Mo.  561,  19  S.  W.  305; 
Skinner  v.  Harrison  Tp.,  116  Ind.  139,  18  N. 
E.  529,  2  L.  R.  A.  137;  and  a  city  may  re- 
fuse to  accept  such  a  bequest ;  Dailey  v.  City 
of  New  Haven,  60  Conn.  314,  22  Atl.  945,  14 
L.  R.  A.  69. 

In  determining  whether  or  not  a  gift  is 
charitable,  courts  will  consider  the  nature  of 
the  gift,  rather  than  the  motives  of  the  do- 
nor; In  re  Smith's  Estate,  181  Pa.  109,  37  Atl. 
114. 

When  a  testator  creates  a  trust  which  is 
invalid  because  it  is  one  which  the  law  will 
not  permit  to  be  carried  out,  the  trust  fails; 
Fairchild  v.  Edson,  154  N.  Y.  199,  48  N.  E. 
541,  61  Am.  St.  Rep.  609;  Jackson  v.  Phil- 
lips, 14  Allen  (Mass.)  539;  Campbell's  Heirs 
v.  McArthur,  4  N.  C.  557 ;  State  v.  Griffith,  2 
Del.  Ch.  392;  Zeisweiss  v.  James,  63  Pa.  465, 
3  Am.  Rep.  558;  De  Camp  v.  Dobbins,  31 
N.  J.  Eq.  671. 

A  bequest  for  a  religious  purpose  is  prima 
facie  a  bequest  for  a  charitable  purpose; 
[1S93]  2  Ch.  41.  In  England  bequests  for 
masses  for  the  repose  of  the  testator's  soul 
are  void  as  being  for  superstitious  uses;  2 
Drew.  417 ;  2  Myl.  &  K.  684.  In  the  United 
States  they  have  been  held  good  charitable 
trusts;  Petition  of  Schouler,  134  Mass.  426; 
Appeal  of  Seibert,  18  W.  N.  C.  (Pa.)  276; 
Hoeffer  v.  Clogan,  171  111.  402,  49  N.  E.  527, 
40  L.  R.  A.  730,  63  Am.  St.  Rep.  241.  In  New 
York,  though  they  were  held  charitable,  they 
were  held  void  for  want  of  a  specific  legatee; 
Holland  v.  Alcock,  108  N.  Y.  312,  16  N.  E. 
305,  2  Am.  St.  Rep.  420;  Gilman  v.  McArdle, 
99  N.  Y.  451,  2  N.  E.  464.  In  Alabama  the 
gift  was  held  not  charitable ;  Festorazzi  v. 
Church,  104  Ala.  327,  18  South.  394,  25  L.  R. 
A.  360,  53  Am.  St.  Rep.  48;  so  in  California ; 
In  re  Lennon's  Estate,  152  Cal.  327,  92  Pac. 
870,  125  Am.  St.  Rep.  58,  14  Ann.  Cas.  1024. 
Such  a  bequest  was  upheld,  not  as  a  charity, 
but  as  an  expenditure  directed  by  the  tes- 
tator for  services  rendered  to  him ;  Moran  v. 
Moran,  104  la.  216,  73  N.  W.  617,  39  L.  R.  A. 
204,  65  Am.  St.  Rep.  443.  It  is  upheld,  not 
as  a  charitable,  but  as  a  religious  use;  Ap- 
peal of  Rhymer's,  93  Pa.  142,  39  Am.  Rep. 
736.  Money  given  by  his  followers  to  the 
founder  of  a  church  constitutes  a  trust  fund ; 
Holmes  v.  Dowie,  148  Fed.  634.  If  given  "for 
poor  souls,"  it  is  a  public  charity,  not  being 
restricted  to  designated  persons ;  Ackerman 
v.  Fichter  (Ind.)   101  N.  E.  493. 

In  Ireland  gifts  for  masses  are  generally 
held  good  charitable  bequests;  Ir.  R.  2 
Eq.  321.  They  were  held  not  to  be  bequests 
for  any  purpose  merely  charitable,  within 
the  exception  of  a  statute  imposing  a  legacy 
duty;  11  Ir.  R.  10  C.  L.  104;  21  L.  R.  Ir. 
480.  Such  a  bequest  was  held  not  to  be  an 
attempt  to  create  a  perpetuity;  21  L.  R.  Ir. 
138 ;  but  that  it  is  such  was  held  in  25  L.  R. 
Ti.  38S;    [1S96]  1  Ir.  418;    and  that  the  gift 


was  void  for  the  want  of  a  definite  cestui  que 
trust  was  beld  in  Ir.  R.  11  Eq.  433. 

A  charitable  devise  may  become  void  for 
uncertainty  as  to  the  beneficiary;  Society  of 
the  Most  Precious  Blood  v.  Moll,  51  Minn. 
277,  53  N.  W.  648;  Brennan  v.  Winkler,  37 
S.  C.  457,  16  S.  E.  190;  Yingling  v.  Miller,  77 
Md.  104,  26  Atl.  491;  Johnson  v.  Johnson, 
92  Tenn.  559,  23  S.  W.  114,  22  L.  R.  A.  179,  36 
Am.  St.  Rep.  104;  Simmons  v.  Burrell,  8 
Misc.  388,  28  N.  Y.  Supp.  625.  The  decision 
that  the  appropriation  for  the  World's  Co- 
lumbian Exposition  was  a  charitable  use  ;  U. 
S.  v.  Exposition,  56  Fed.  630;  was  reversed 
by  the  circuit  court  of  appeals,  which  held 
that,  being  made  for  the  benefit  of  a  local 
corporation,  it  did  not  constitute  a  charitable 
trust,  although  aiding  a  great  public  enter- 
prise; World's  Columbian  Exposition  v.  U. 
S.,  56  Fed.  654,  6  C.  C.  A.  58. 

When  the  purposes  of  a  charity  may  be 
best  sustained  by  alienating  the  specific  prop- 
erty bequeathed  and  investing  the  proceeds 
in  a  different  manner,  a  court  of  equity  has 
jurisdiction  to  direct  such  sale  and  invest- 
ment, taking  care  that  no  deviation  of  the 
gift  be  permitted ;  City  of  Newark  v.  Stock- 
ton, 44  N.  J.  Eq.  179,  14  Atl.  630;  Peter  v. 
Carter,  70  Md.  139,  16  Atl.  450. 

Charities  in  England  were  formerly  in- 
terpreted, sustained,  controlled,  and  applied 
by  the  court  of  chancery,  in  virtue  of  its 
general  jurisdiction  in  equity,  aided  by  the 
stat.  43  Eliz.  c.  4  and  the  prerogative  of  the 
crown  ;  the  latter  being  "exercised  by  the  lord 
chancellor,  as  the  delegate  of  the  sovereign 
acting  as  parens  patriae;  Spence,  Eq.  Jur. 
439,  441;  Bartlet  v.  King,  12  Mass.  537,  7 
Am.  Dec.  99.  The  subject  has  since  been 
regulated  by  various  statutes ;  the  Charitable 
Trusts  Act  of  1853,  16  &  17  Vict.  c.  137, 
amended  by  various  subsequent  acts  down  to 
1S94;  Tud.  Char.  Tr.  part  iii. ;  3d  ed.  By 
the  Toleration  Act,  1  Wm.  &  M.  c.  18,  chari- 
table trusts  for  promoting  the^  religious  opin- 
ions of  Protestant  Dissenters  have  been  held 
valid;  2  Ves.  Sen.  273.  Roman  Catholics 
share  in  their  benefits;  2  &  3  Will.  IV.  c. 
115 ;  and  Jews,  by  9  &  10  Vict.  c.  59,  §  2. 

The  weight  of  judicial  authority  in  Eng- 
land was  in  favor  of  the  doctrine  which,  as 
will  be  seen,  prevails  in  this  country,  that 
equity  exercised  an  inherent  jurisdiction  over 
charitable  uses  independently  of  the  statute 
of  Elizabeth ;  that  the  statute  did  not  create, 
but  was  in  aid  of,  the  jurisdiction.  In  sup- 
port of  this  conclusion  are  found  such  judges 
as  Ld.  Ch.  Northington,  in  1  Eden  10;  Amb. 
351;  Sir  Jos.  Jekyll,  in  2  P.  Wms.  119;  Ld. 
Ch.  Redesdale,  in  1  Bligh  347 ;  Ld.  Ch.  Hard- 
wicke,  in  2  Ves.  Sr.  327;  Ld.  Keeper  Finch, 
in  2  Lev.  167 ;  Ld.  Ch.  Sugden,  in  1  Dr.  &  W. 
258;  Ld.  Ch.  Somers,  in  2  Vern.  342;  Ld. 
Ch.  Eldon,  in  1  Bligh  35S,  and  7  Ves.  36; 
Wilmot,  C.  J.,  in  Wilmot's  Notes  24;  Ld. 
Ch.  Lyndhurst,  in  Bligh  335;  and  Sir  John 
Leach,  in  1  Myl.  &  K.  376. 


CHARITABLE  USES,  CHARITIES         4IJ5         CHARITABLE  USES,  CHABH 


The  stat.  43  Eliz.  c.  4  has  not  been  re- 
enacted  or  strictly  followed  in  the  United 
States.  In  some  states  it  has  been  adopted 
by  usage ;  but,  with  several  striking  excep- 
tions, the  decisions  of  the  English  Chancery 
upon  trusts  for  charity  have  furnished  the 
rule  of  adjudication  in  our  courts,  without 
particular  reference  to  the  fact  that  the  most 
remarkable  of  them  were  only  sustainable 
under  the  peculiar  construction  given  to  cer- 
tain phrases  in  the  statute;  Boyle,  Char.  18. 
The  opinion  prevailed  extensively  in  this 
country  that  the  validity  of  charitable  en- 
dowments and  the  jurisdiction  of  courts  of 
equity  in  such  cases  depended  upon  that 
statute.  In  the  case  of  the  Baptist  Associa- 
tion v.  Hart,  4  Wheat  (U.  S.)  1,  4  L.  Ed. 
499,  the  court  adopted  that  view  and  accept- 
ed the  conclusion  that  there  was  at  common 
law  no  jurisdiction  of  charitable  uses  exer- 
cised in  chancery,  although  In  afterwards  re- 
viewing that  decision  an  effort  was  made  to 
distinguish  the  case  by  the  two  features  that 
such  cases  are  not  recognized  by  the  law  of 
Virginia,  where  it  arose,  and  that  it  was  a 
donation  to  trustees  incapable  of  taking,  with 
beneficiaries  uncertain  and  indefinite ;  Vidal 
v.  Girard,  2  How.  (U.  S.)  12S,  11  L.  Ed.  205. 
These  views  were  assailed  in  1833  by  Bald- 
win, J.  (Magill  v.  Brown,  Bright.  346,  Fed. 
Cas.  No.  8,952),  in  1835  in  Burr's  Ex'rs  v. 
Smith,  7  Vt.  241,  29  Am.  Dec.  154,  and  in 
1844  by  Mr.  Binney  in  the  Girard  will  case 
in  Vidal  v.  Girard,  2  How.  (U.  S.)  12S,  11 
L.  Ed.  205.  In  that  case  there  was  furnished 
a  memorandum  of  fifty  cases  extracted  from 
the  then  recently  published  chancery  calen- 
dars, in  which  the  jurisdiction  had  been  ex- 
ercised prior  to  the  stat.  of  43  Eliz.  (2  How. 
[U.  S.]  155,  note)  ;  and  although  the  accu- 
racy of  this  list  was  challenged  by  Mr. 
Webster  in  argument;  (id.  179  note),  the 
court,  per  Story,  J.,  accepted  it  to  "establish, 
in  the  most  satisfactory  and  conclusive  man- 
ner," the  conclusion  stated.  Baldwin,  J., 
also  enumerated  forty-six  cases  of  the  en- 
forcement of  such  trusts  independently  of 
the  statute;  Magill  v.  Brown,  Bright.  346, 
Fed.  Cas.  No.  8,952.  The  doctrine  was  fully 
adopted  by  the  United  States  supreme  court 
in  the  Girard  will  case,  and  has  been  since 
adhered  to;  Ould  v.  Hospital,  95  U.  S.  304, 
24  L.  Ed.  450.  It  is  now  conceded  as  settled 
that  courts  of  equity  have  an  inherent  and 
original  jurisdiction  over  charities,  independ- 
ent of  the  statute;  Perry.  Trusts  §  694; 
Tappan  v.  Deblois,  45  Me.  122;  Chambers  v. 
St.  Louis,  29  Mo.  543;  Paschal  v.  Acklin,  27 
Tex.  173;  State  v.  Griflith,  2  Del.  Ch.  392; 
Griffith  v.  State,  id.  421,  463;  Knmshage  v. 
Varrell,  120  Wis.  161,  97  N.  W.  92S. 

In  Virginia  and  New  York,  that  statute, 
with  all  its  consequences,  seems  to  have 
been  repudiated;  Gallego's  Ex'rs  v.  Attorney 
General,  3  Leigh  (Va.)  450,  24  Am.  Dec.  650; 
Cottman  v.  Grace,  112  N.  Y.  299,  19  N.  E. 
839,  3  L.  R.  A.  145.  So  in  North  Carolina, 
Bouv.— 30 


Connecticut,  Maryland,  and  the  District  of 
Columbia  ;  McAuley  v.  Wilson,  10  N.  C.  276, 
18  Am.  Dec.  587 ;  Griffin  v.  Graham,  8  N.  < '. 
96,  9  Am.  Dec.  619;  Bridges  v.  Pleasants,  39 
N.  C.  26,  44  Am.  Dec.  94;  Greene  v.  Dennis, 
6  Conn.  293,  16  Am.  Dec.  58;  White  v. 
22  Conn.  31;    Dashiell  v.  Attorney  G< si 

5  Harr.  &  J.   (Md.)  392,  9  Am.  D( 

6  Harr.  &  J.  (Md.)  1;  Wilderman  v.  Balti- 
more, 8  Md.  551;  Halsey  v.  Church,  75  Md. 
275,  23  Atl.  781;    Ould  v.  Hospital,  95 

304,  24  L.  Ed.  450.  In  Georgia,  Illinois.  Indi- 
ana, Iowa,  Kentucky,  Massachusetts,  Rhode 
Island,  Vermont,  and  perhaps  some  other 
states,  the  English  rule  is  acted  on ;  McCord 
v.  Ochiltree,  8  Blackf.  (Ind.)  15;  Baptist 
Church  v.  Church,  IS  B.  Monr.  (Ky.)  635; 
Beall  v.  Fox,  4  Ga.  404  ;  Going  v.  Emery,  16 
Pick.  (Mass.)  107,  26  Am.  Dec.  645;  Derby 
v.  Derby,  4  R.  I.  414;  Fink  v.  Fink's  Ex'r,  12 
La.  Ann.  301;  Burr's  Ex'rs  v.  Smith,  7  Vt. 
241,  29  Am.  Dec.  154;  Trustees  of  Phila- 
delphia Baptist  Ass'n  v.  Hart's  Ex'rs,  4 
Wheat.  (U.  S.)  1,  4  L.  Ed.  499;  Vidal  v. 
Girard's  Ex'rs,  2  How.  (U.  S.)  127,  11  L.  Ed. 
205;  Perin  v.  Carey,  24  How.  (U.  S.)  465, 
16  L.  Ed.  701;  Crerar  v.  Williams,  145  111. 
625,  34  N.  E.  467,  21  L.  R.  A.  454.  See  Gil- 
man  v.  Hamilton,  16  111.  225;  Dickson  v. 
Montgomery,  1  Swan  (Tenn.)  348.  While 
not  in  force  as  a  statute  in  Pennsylvania,  it 
is  embodied  as  to  its  principles  in  the  com- 
mon law  of  that  state;  Fire  Ins.  Tatrol  v. 
Boyd,  120  Pa.  624,  15  Atl.  553,  1  L.  R.  A.  417, 
6  Am.  St.  Rep.  745;  Dulles's  Estate,  21* 
162,  67  Atl.  49,  12  L.  R.  A.  (N.  S.)  1177. 
Connecticut  has  a  substitute  statute  for  that 
of  43  Eliz.,  passed  in  1684,  which  is  more 
strict  than  the  English  law  in  that  it  re- 
quires certainty  in  the  person  to  he  benefited 
or  at  least  a  certain  and  definite  class  of 
persons,  with  an  ascertained  mode  of  select- 
ing them  ;  Adge  v.  Smith,  44  Conn.  60,  26 
Am.  Rep.  424. 

It  is  said  that  charitable  uses  are  favorites 
with  courts  of  equity;  the  construction  of 
all  instruments,  when  they  are  concerned,  i^ 
liberal  in  their  behalf;  Ould  v.  Hospital.  '.'."■ 
U.  S.  313,  24  L.  Ed.  450;  and  even  the  rule 
against  perpetuities  is  relaxed  for  then- 
fit ;  id.;  [1S91]  3  Ch.  252;  Woodruff  v. 
Marsh,  63  Conn.  125,  26  Atl.  S46,  .".8  Am.  St. 
Rep.  346 ;  Bisph.  Eq.  Tj  133 ;  Periu  v.  Carey. 
24  How.  (U.  S.)  495,  16  L.  Ed.  701;  Brown 
v.  Baptist  Society,  9  R.  I.  177:  contra,  Bas- 
com  v.  Albertson,  34  N.  Y.  584.  See  also 
Gray,  Perp.  §  5S9.  But  if  a  gift  to  charity  is 
made  to  depend  on  a  condition  precedent,  the 
event  must  occur  within  the  rule  against 
perpetuities;  [1894]  3  Ch.  265 ;  except  where 
the  event  is  the  divesting  of  another  charily; 
[1891]  ::  Ch.  l>.~.2. 

An  immediate  gift  to  charity  is  valid,  al- 
though the  particular  application  of  the  fund 
directed  by  the  will  may  not  of  necessity  take 
effect  within  any  assignable  limit  of  time,  or 
may  never  take  effect  at  all,  except  on  the 


CHARITABLE  USES,  CHARITIES         466         CHARITABLE  USES,  CHARITIES 


occurrence  of  events  in  their  essence  con- 
tingent and  uncertain ;  while  on  the  other 
hand,  a  gift  in  trust  for  charity  which  is 
conditional  upon  a  future  and  uncertain 
event  is  subject  to  the  same  rules  as  any 
other  estate  depending  on  its  coming  into 
existence  upon  a  condition  precedent ;  74  L. 
J.  Ch.  354;    [1903]  1  Ch.  6G0,  92  L.  T.  715. 

A  gift  may  be  made  to  a  charity  not  in  esse 
at  the  time;  id.;  Perry,  Trusts  §  736;  Dodge 
v.  Williams,  46  Wis.  70,  1  N.  W.  92,  50  N.  W. 
1103.  See  Booth  v.  Baptist  Church,  126  N. 
Y.  215,  28  N.  E.  238;  Hayes  v.  Pratt,  147  U. 
S.  557,  13  Sup.  Ct.  503,  37  L.  Ed.  279.  And  a 
gift  for  specific  charitable  purposes  will  not 
fail  for  want  of  trustees ;  Sears  v.  Chapman, 
158  Mass.  400,  33  N.  E.  604,  35  Am.  St.  Rep. 
502;  Municipality  of  Ponce  v.  Roman  Cath- 
olic Apostolic  Church,  210  U.  S.  296,  28  Sup. 
Ct.  737,  52  L  Ed.  1068.  See  Dammert  v. 
Osborn,  140  N.  Y.  30,  35  N.  E.  407. 

Generally,  the  rules  against  accumulations 
do  not  apply;  Perry,  Trusts  §  738;  Odell  v. 
Odell,  10  Allen  (Mass.)  1;  City  of  Philadel- 
phia v.  Girard's  Heirs,  45  Pa.  9,  84  Am.  Dec. 
470;  as  accumulations  for  charity,  for  a 
longer  period  than  is  allowed  by  the  rule 
against  perpetuities  will  be  upheld ;  Brig- 
ham  v.  Hospital,  126  Fed.  796;  St.  Paul's 
Church  v.  Attorney  General,  164  Mass.  188, 
41  N.  E.  231.  A  bequest  of  money  to  be 
accumulated  until  the  fund,  with  any  addi- 
tions from  other  sources,  should  suffice  to 
pay  the  state  debt,  was  held  void  as  exceed- 
ing the  limitation  of  the  rule  against  remote- 
ness and  accumulations ;  Russell  v.  Trust 
Co.,  171  Fed.  161. 

Where  there  is  no  trustee  appointed  or 
none  capable  of  acting,  the  trust  will  be  sus- 
tained, and  a  trustee  appointed  ;  3  Hare  191 ; 
Inglis  v.  Sailor's  Snug  Harbor,  3  Pet.  (U.  S.) 
99,  7  L  Ed.  617.  In  New  York  a  certain 
designated  beneficiary  was  essential  to  the 
creation  of  a  valid  trust  and  the  cy  pres  doc- 
trine formerly  was  not  accepted ;  see  Power 
v.  Cassidy,  79  N.  Y.  602,  35  Am.  Rep.  550, 
said  to  reach  the  limit  of  uncertainty  in  that 
state,  and  In  re  O'Hara's  Will,  95  N.  Y.  418, 
47  Am.  Rep.  53,  and  Holland  v.  Alcock,  108 
N.  Y.  312,  16  N.  E.  305,  2  Am.  St.  Rep.  420, 
commenting  on  that  case  and  reasserting  the 
general  rule  in  New  York  as  stated ;  Tilden 
v.  Green,  130  N.  Y.  29,  28  N.  E.  880,  14  L.  R. 
A.  33,  27  Am.  St.  Rep.  487;  a  bequest  in 
which  the  beneficiary  is  not  designated  and 
the  selection  thereof  is  delegated  to  trustees 
with  complete  discretionary  power  was  held 
invalid,  and  the  uncertainty  as  to  beneficia- 
ries could  not  be  cured  by  anything  done  by 
the  trustees  to  execute  it ;   id. 

But  by  New  York  Laws  of  1893,  c.  701,  it 
is  provided  that  if  in  an  instrument  creating 
a  gift,  grant,  devise,  or  bequest  there  is  a 
trustee  named  to  execute  the  same,  the  legal 
title  to  the  property  shall  vest  in  such  trus- 
tee, and  if  no  trustee  be  named,  the  title 
shall  vest  in  the  supreme  court;    Bowman  v. 


Domestic  &  Foreign  Missionary  Society,  182 
N.  Y.  498,  75  N.  E.  535 ;  Allen  v.  Stevens,  161 
N.  Y.  122,  55  N.  E.  568.  The  effect  of  this 
act  is  to  restore  the  ancient  doctrine  of  char- 
itable uses  and  trusts  as  a  part  of  the  laws 
of  New  York;  id.;  to  confer  all  power  over 
charitable  trusts  and  trustees  on  the  supreme 
court  and  to  require  the  attorney  general  to 
represent  the  beneficiaries  in  cases  within 
the  statute  as  was  the  practice  in  England ; 
Rothschild  v.  Goldenberg,  58  App.  Div.  499, 
69  N.  Y.  Supp.  523. 

A  testamentary  gift  for  a  charity  to  an  un- 
incorporated association  afterwards  incor- 
porated is  sometimes  sustained ;  as  when 
the  devise  does  not  vest  until  after  the  incor- 
poration ;  Plymouth  Soc.  of  Milford  v.  Hep- 
burn, 57  Hun  161,  10  N.  Y.  Supp.  817;  but 
otherwise  the  incapacity  to  take  cannot  be 
cured  by  subsequent  incorporation  or  amend- 
ment ;  Lougheed  v.  Dykeman's  Baptist 
Church  and  Soc,  129  N.  Y.  211,  29  N.  E.  249, 
14  L.  R.  A.  410  and  note.  A  devise  to  a 
charity,  however,  is  held  valid  where  future 
incorporation  is  provided  for  or  contem- 
plated;  id.;  Field  v.  Theological  Seminary, 
41  Fed.  371 ;  Trustees  of  Storrs  Agricultural 
School  v.  Whitney,  54  Conn.  342,  8  Atl.  141 ; 
Miller  v.  Chittenden,  4  la.  252 ;  Swasey  v. 
Bible  Soc,  57  Me.  523;  Burrill  v.  Boardman, 
43  N.  Y.  254,  3  Am.  Rep.  694;  Kinnaird  v. 
Miller's  Ex'r,  25  Gratt.  (Va.)  107.  Under 
the  civil  law,  a  similar  rule  seems  to  have 
prevailed,  and  gifts  for  pious  uses  might  be 
made  to  a  legal  entity  to  be  established  by 
the  state  after  the  testator's  death ;  Mack- 
eldy,  Civ.  Law  §  157 ;  Inglis  v.  Sailor's  Snug 
Harbor,  3  Pet.  (U.  S.)  100,  7  L.  Ed.  617; 
Milne's  Heirs  v.  Milne's  Ex'rs,  17  La.  46; 
Howe,  Studies  in  the  Civil  Law  68. 

A  legacy  to  a  corporation  for  general  cor- 
porate purposes  is  in  some  cases  held  to 
create  a  trust ;  De  Camp  v.  Dobbins,  29  N. 
J.  Eq.  36 ;  1  Dr.  &  War.  258 ;  President,  etc., 
of  Harvard  College  v.  Society,  3  Gray 
(Mass.)  280;  in  others  not  a  trust  but  a 
gift  with  conditions  annexed  as  to  its  ex- 
penditure; Woman's  Foreign  Missionary  So- 
ciety of  Methodist  Episcopal  Church  v.  Mitch- 
ell, 93  Md.  199,  48  Atl.  737,  53  L.  R.  A.  711 ; 
In  re  Griffin's  Will,  167  N.  Y.  71,  60  N.  E. 
284;  Bird  v.  Merklee,  144  N.  Y.  544,  39  N. 
E.  645,  27  L.  R.  A.  423. 

A  gift  to  a  perpetual  institution  not  char- 
itable is  not  necessarily  bad.  The  gift  is 
good  if  it  is  not  subject  to  any  trust  that 
will  prevent  the  existing  members  of  the 
association  from  dealing  with  it  as  they 
please,  or  if  it  can  be  construed  as  a  gift  to 
or  for  the  benefit  of  the  individual  members 
of  the  association.  If  the  gift  is  one  which 
by  the  terms  of  it,  or  which  by  reason  of 
the  constitution  of  the  association  in  whose 
favor  it  is  made,  tends  to  a  perpetuity,  the 
gift  is  bad ;  70  L.  J.  Ch.  631 ;  [1901]  2  Ch. 
110. 

A  gift  to  a  society  the  object  of  which  was 


CHARITABLE   USES,  CHARITIES         4G7         CHARITABLE  USES,  CHARI  , 


the  employment  of  its  funds  for  mutual  be- 
nevolences anions  its  members  and  their  fami- 
lies was  held  not  a  charitable  use  under  the 
common  law  of  Pennsylvania  or  the  statute 
of  Elizabeth;  Babb  v.  Reed,  5  Rawle  (Pa.) 
151,  2S  Am.  Dec.  050;  Swift's  Ex'rs  v.  Socie- 
ty, 73  Pa.  362. 

In  England  a  devise  or  bequest  for  be- 
nevolent purposes  is  held  to  be  too  indefinite 
and  therefore  void;  3  Mer.  17;  !)  Ves.  399; 
but  though  wider  than  charity  in  Legal  signif- 
ication ;  Norris  v.  Thomson's  Ex'rs,  lit  N.  J. 
Eq.  307;  its  meaning  may  ho  narrowed  by 
the  context;  De  Camp  v.  Dobbins,  31  X.  J. 
Eq.  695.  Any  act  of  kindness,  forethought, 
good  will,  or  friendship  may  properly  be  de- 
scribed as  benevolent;  Suter  v.  Ililliard,  132 
Mass.  413,  42  Am.  Rep.  411  ;  and  it  has  been 
held  that  whatever  may  he  the  meaning  of 
the  word  when  used  alone  in  a  bequest  in 
connection  with  charity,  it  is  synonymous 
with  it;  Saltonstall  v.  Sanders,  11  Allen 
(Mass.)  446.  A  fund  for  providing  oysters 
for  benchers  at  one  of  the  Inns  of.  Court, 
however  benevolent,  would  hardly  be  called 
charitable;  [1801]  A.  C.  580.  A  gift  to  an 
archbishop  of  property  to  be  used  as  he 
"may  judge  most  conducive  to  the  good  of 
religion  in  this  diocese,"  is  not  a  gift  for 
"religious  purposes"  and  is  invalid;  10G  L. 
T.  394  (P.  C).  A  bequest  to  executors  to 
distribute  the  property  among  benevolent  ob- 
jects is  not  too  indefinite  to  be  permitted  to 
stand;  Dulles's  Estate,  218  Pa.  102,  67  Atl. 
49,  12  L.  R.  A.   (X.  S.)   1177. 

Legacies  to  pious  or  charitable  uses  are 
not,  by  the  law  of  England,  entitled  to  a 
preference  in  distribution ;  although  such 
was  the  doctrine  of  the  civil  law.  Xor  are 
they  in  the  United  States,  except  by  special 
statutes. 

In  jurisdictions  which  have  adopted  the 
statute  of  uses,  or  which  accept  the  doctrine 
of  original  jurisdiction  in  equity,  trusts  oth- 
erwise valid,  especially  when  in  aid  of  reli- 
gious, educational,  or  charitable  objects,  are 
not  void  because  of  lack  of  corporate  capaci- 
ty in  the  beneficiary ;  Appeal  of  Evangelical 
Ass'n,  35  Pa.  316 ;  Conklin  v.  Davis,  63  Conn. 
377,  28  Atl.  537;  Tappan  v.  Deblois,  45  Me. 
122 ;  Lewis  v.  Curnutt.  130  la.  423,  106  X.  W. 
914;  Burbank  v.  Whitney,  24  Pick.  (Mass.) 
146,  35  Am.  Dec.  312;  Parker  v.  Cowell,  16 
X.  H.  140;  Mason's  Ex'rs  v.  M.  E.  Church, 
27  N.  J.  Eq.  47. 

In  Evangelical  Ass'n's  Appeal,  supra,  it 
was  held  that  a  bequest  to  an  unincorporated 
religious  society,  not  upon  any  defined  chari- 
ty, or  for  any  specified  charitable  use.  was 
valid ;  in  such  case  it  is  necessary  only  to 
name  the  legatee;  such  a  society  can  take 
without  any  direction  that  the  legacy  (or 
gift)  should  be  expended  for  charity  purpos- 
es; its  own  character  determines  the  char- 
acter of  the  gift.  Strong,  J.  (a  great  au- 
thority on  this  law),  in  delivering  the  opinion 
of  the  court,  cited  3  Russ.  142,  where  it  was 


held  that  in  a  bequest  to  a  purely  charitable 

corporation    the   court    will 

without  requiring  that  settled 

for  its  distribution;  also.   i   Sit  i.  ..v  stu.  43, 

where  a   legacy   to   an   w: 

tabic  instil ul ion,  to   become   part    of   II 

oral    funds,    was    upheld.      S 

Ex'rs   v.   Smith.  7   Vt.   241,   20   An 

He  also  cited  with  disapproval  thi 

to  the  contrary   in    1    Jarm.    Wills    L93.     The 

also   held    that  it  makes  no 
that  the  members  of  such  society  are  Is 
non-residents. 

A  devise  for  the  benefit  of  an  unincor; 
ed  association  of  individuals  unnamed,  which 
may  increase  and  add  to  its  number,  or 

tn  or  withdrawal,  and  ; 
of  which  is  not  known,  and  is  indeterminate, 
is  held  void  for  uncertainty;  Miller  v. 
Alliens,  1.50  Fed.  644.  In  jurisdictions  in 
which  the  statute  of  Elizabeth  is  not  a  part 
of  the  existing  laws,  only  incorporated  bodies 
can  take  charitable  bequests  :  Mount  v.  Tut- 
tle,  183  X.  V.  358,  7c  N.  B.  873,  2  L.  EL  A. 
(X.  S.)  428;  Kain  v.  Gibboney,  101  U.  S. 
362,  25  L.  Ed.  813  (where  the  opinion  was 
also  by  Strong,  J.,  then  a  member  of  that 
court)  ;  Fifield  v.  Van  Wyck,  94  Va.  557,  27 
S.  E.  446,  64  Am.  St.  Rep.  745;  Lane  v.  Eaton. 
69  Minn.  141,  71  X.  W.  1031,  38  L.  R.  A. 
669,  65  Am.  St.  Rep.  .">'.i ;  Rhodes  v.  Rhodes, 
SS  Tenn.  637,  13  S.  W.  590. 

Where  the  association  is  not  chari; 
the  gift  is  void  within  the  doctrine  of  Mor- 
ice  v.  Bishop  of  Durham,  9  Ves.  309:  "There 
can  be  no  trust  over  the  exercise  of  which 
this  court  will  not  assume  a  control ;  for  an 
uncontrollable  power  of  disposition  would  be 
ownership,  not  trust.  If  there  be  a  clear 
trust,  but  for  uncertain  objects,  the  property 
that  is  the  subject  of  the  trust  is  undisposed 
of;  and  the  benefit  of  such  trust  must  result 
to  those  to  whom  the  law  gives  the  owner- 
ship in  default  of  disposition  by  the  owner. 
But  this  doctrine  does  not  hold  good  with  re- 
gard to  trusts  for  charity.  Every  other  trust 
must  have  a  definite  object.  There  must  be 
somebody  in  whose  favor  the  court  can  de- 
cree a  performance."  This  doctrine  was 
applied  where  the  gift  was  for  the  use  and 
benefit  of  a  convent,  not  charitable  but  reli- 
gious; 11  L.  R.  Ir.  236;  to  an  individual 
with  the  condition  that  he  spend  his  time  in 
retirement  and  constant  devotion;  L.  E.  12 
Eq.  574. 

Where  a  statute  declares  void  a  gift  by 
will  to  a  charity  if  made  within  less  than  30 
days  of  the  death,  a  gift  to  a  trust  company 
to  take  effect  it'  a  legacy  to  charities  should 
he  void  under  the  act.  was  held  void  because 
it  was  clearly  made  to  carry  out  the  bequest 
to  the  charities  designated  in  the  will;  In  re 
stirk's  Estate,  232  Pa.  98,  81  Atl.  187. 

See,  generally,  3  Washburn,  Real  Prop. 
687,  690;  Boyle,  Char.;  Duke.  Char.  Uses: 
2  Kent  301;  4  id.  616;  2  Ves.  Ch.  52,  272: 
6  id.  404;   7  id.  86;    Ambl.  715;   2  Atk.  88; 


CHARITABLE  USES,  CHARITIES         468         CHARITABLE  USES,  CHARITIES 


Barr  v.  Weld,  24  Pa.  84;  Mayor,  etc.,  of 
Philadelphia  v.  Elliott,  3  Rawle  (Pa.)  170; 
Witman  v.  Lex,  17  S.  &  R.  (Pa.)  88,  17  Am. 
Dec.  644 ;  Gass  &  Bonta  v.  Wilhite,  2  Dana 
(Ky.)  170,  26  Am.  Dec.  446;  McCartee  v. 
Orphan  Asylum  Soc,  9  Cow.  (N.  Y.)  437,  18 
Am.  Dec.  516;  Kniskern  v.  Lutheran 
Churches,  1  Sandf.  Ch.  (N.  T.)  439;  Yates 
v.  Yates,  9  Barb.  (N.  Y.)  324;  Voorhees  v. 
Church,  17  Barb.  (N.  Y.)  104;  Brett,  Lead. 
Cas.  Mod.  Eq. ;  Trustees  of  Mclntire-  Poor 
School  v.  Canal  &  Mfg.  Co.,  9  Ohio  203,  34 
Am.  Dec.  436 ;  Hullman  v.  Honcomp,  5  Ohio 
St.  237 ;  Town  of  Hamden  v.  Rice,  24  Conn. 
350;  Cincinnati  v.  White,  6  Pet.  (U.  S.)  435, 
8  L.  Ed.  452 ;  Pawlet  v.  Clark,  9  Cra.  (U.  S.) 
331,  3  L.  Ed.  735;  Dwight's  argument,  Rose 
will  case ;  Dwight's  Charity  Cases ;  a  full 
article  on  Jurisdiction  of  the  Court  of  Chan- 
cery to  Enforce  Charitable  Uses,  1  Am.  L. 
Reg.  (N.  S.)  129,  321,  385;  Dashiell  v.  At- 
torney-General, 5  Harr.  &  J.  (Md.)  392.  9 
Am.  Dec.  577.  See  31  Am.  L.  Reg.  123,  235, 
and  5  Harv.  L.  Rev.  3S9,  for  discussion  of 
the  Tilden  will  case,  cited  supra;  15  id.  509; 
and  also  Potter  will  case,  Houston  v.  Town- 
send,  1  Del.  Ch.  421,  12  Am.  Dec.  109,  in 
which  the  arguments  are  very  fully  reported 
and  the  authorities  collected  on  both  sides  of 
the  questions  involved  in  this  title. 

Usually  a  charitable  corporation  is  not 
liable  in  damages  for  personal  injuries  re- 
sulting from  the  torts  of  its  officers  and 
agents;  Abston  v.  Academy,  118  Tenn.  24, 
102  S.  W.  351,  11  L.  R.  A.  (N.  S.)  1179 ;  Fire 
Ins.  Patrol  v.  Boyd,  120  Pa.  624,  15  Atl.  553, 
1  L.  R.  A.  417,  6  Am.  St.  Rep.  745 ;  Gable  v. 
Sisters  of  St.  Francis,  227  Pa.  254,  75  Atl. 
10S7,  136  Am.  St.  Rep.  879;  Farrigan  v.  Pe- 
vear,  193  Mass.  147,  78  N.  E.  855,  7  L.  R.  A. 
(N.  S.)  481,  118  Am.  St.  Rep.  484,  8  Ann. 
Cas.  1109 ;  Powers  v.  Hospital,  109  Fed.  294. 
47  C.  C.  A.  122,  65  L.  R.  A.  372;  Lea  veil  v. 
Asylum,  122  Ky.  213,  91  S.  W.  671,  4  L.  R.  A. 
(N.  S.)  269,  12  Ann.  Cas.  827;  Thornton  v. 
Franklin  Square  House,  200  Mass.  465,  86 
N.  E.  909,  22  L.  R.  A.  (N.  S.)  486.  But  a 
public  charitable  reformatory  is  held  liable 
to  one  whom  it  imprisons  against  her  con- 
sent and  without  lawful  authority;  Gallon 
v.  House  of  Good  Shepherd,  158  Mich.  361, 
122  N.  W.  631,  24  L.  R.  A.  (N.  S.)  286,  133 
Am.  St.  Rep.  3S7;  a  hospital  is  not  exempt 
from  liability  for  negligent  injury  to  an  em- 
ployee merely  because  it  was  founded  by 
property  given  for  charitable  purposes ;  He- 
wett  v.  Hospital,  73  N.  H.  556,  64  Atl.  190, 
7  L.  R.  A.  (N.  S.)  496.  So  a  hospital  which 
is  an  adjunct  to  a  medical  school  and  con- 
ducted for  profit  is  liable  for  negligent  in- 
jury to  an  employee ;  University  of  Louis- 
ville v.  Hammock,  127  Ky.  564,  106  S.  W. 
219,  14  L.  R.  A.  (N.  S.)  7S4,  128  Am.  St.  Rep. 
355 ;  as  is  one  maintained  by  a  railroad 
company  for  its  employees  to  which  they  are 
obliged  to  contribute;  Phillips  v.  R.  Co.,  211 
Mo.  419,  111  S.  W.  109,  17  L.  |R.  A.   (N.  S.) 


1167,  124  Am.  St.  Rep.  7S6,  14  Ann.  Cas.  742 ; 
and  a  religious  corporation  is  liable  to  one 
injured  in  repairing  its  property,  through 
the  negligence  of  its  servants  in  furnishing 
unsafe  scaffolding;  Bruce  v.  Central  M.  E. 
Church,  147  Mich.  230,  110  N.  W.  951,  10  L. 
R.  A.  (N.  S.)  74,  11  Ann.  Cas.  150.  Its  prop- 
erty cannot  be  sold  under  execution  on  a 
judgment  rendered  for  the  nonfeasance,  mis- 
feasance or  malfeasance  of  its  agents  or 
trustees;  Fordyce  v.  Ass'n,  79  Ark.  550,  96 
S.  W.  155,  7  L.  R.  A.  (N.  S.)  485. 

A  religious  or  charitable  corporation  is  not 
exempt  from  liability  for  negligent  injury 
to  one  coming  upon  its  premises  to  perform 
service  for  it ;  Hordern  v.  Salvation  Army, 
199  N.  Y.  233,  92  N.  E.  626,  32  L.  R.  A.  (N. 
S.)  62,  139  Am.  St.  Rep.  889;  Kellogg  v. 
Church  Charity  Foundation,  203  N.  Y.  191, 
96  N.  E.  406,  38  L.  R.  A  (N.  S.)  481,  Ann. 
Cas.  1913A,  883;  Mulchey  v.  Religious  So- 
ciety, 125  Mass.  487;  Hewett  v.  Hospital 
Aid  Ass'n,  73  N.  H.  556,  64  Atl.  190,  7  L.  R. 
A.  (N.  S.)  496;  Bruce  v.  Central  Methodist 
Episcopal  Church,  147  Mich.  230,  110  N.  W. 
951,  10  L.  R.  A.  (N.  S.)  74,  11  Ann.  Cas.  150 ; 
Powers  v.  Hospital,  109  Fed.  294,  47  C.  C. 
A.  122,  65  L.  R.  A.  372;  but  such  corpora- 
tion is  not  liable  for  the  negligent  injury  to 
a  beneficiary  by  one  of  its  servants;  Gable 
v.  Sisters  of  St.  Frances,  227  Pa.  254,  75  Atl. 
1087,  136  Am.  St.  Rep.  879 ;  Parks  v.  North- 
western University,  218  111.  3S1,  75  N.  E. 
991,  2  L.  R.  A.  (N.  S.)  556,  4  Ann.  Cas.  103 ; 
McDonald  v.  Massachusetts  General  Hos- 
pital, 120  Mass.  432,  21  Am.  Rep.  529;  Cun- 
ningham v.  Sheltering  Arms,  135  App.  Div. 
178,  119  N.  Y.  Supp.  1033;  Powers  v.  Hos- 
pital, 109  Fed.  294,  47  C.  C.  A.  122,  65  L.  R. 
A.  372;  though  the  beneficiary  be  a  patient 
in  a  hospital  paying  for  the  treatment  re- 
ceived ;  nor  will  an  inmate  of  a  reform 
school  be  permitted  to  recover  from  the  in- 
stitution ;  Corbett  v.  Industrial  School,  177 
N.  Y.  16,  68  N.  E.  997 ;  nor  is  such  corpora- 
tion liable  where  an  inmate  who  partly  pays 
for  his  care  by  work  is  killed  in  the  course 
of  it  while  directed  by  a  competent  serv- 
ant; Cunningham  v.  Sheltering  Arms,  61 
Misc.  501,  115  N.  Y.  Supp.  576. 

See  Foreign  Charities;  Cy  Pees  ;  Per- 
petuities. 

CHARTA.  A  charter  or  deed  in  writing. 
Any  signal  or  token  by  which  an  estate  was 
held. 

Charta  Chyrographata.  An  indenture. 
The  two  parts  were  written  on  the  same 
sheet,  and  the  word  chyrograph  written  be- 
tween them  in  such  a  manner  as  to  divide 
the  word  in  the  separation  of  the  two  parts 
of  the  indenture. 

Charta  Communis.     An  indenture. 

Charta  Partita.     A  charter-party. 

Chaeta  de  Una  Paete.  A  deed  poll.  A 
deed  of  one  part. 

Formerly  this  phrase  was  used  to  distin- 


CHARTA 


4G0 


CHARTER 


guish  a  deed  poll — which  is  an  agreement 
made  by  one  party  only;  that  is,  only  one 
of  the  parties  does  any  act  which  is  binding 
upon  him — from  a  deed  inter  partes.  Co. 
Lit  I.  229.     See  Deed  Poll. 

CHARTA  DE  FOR  EST  A  (written  Cvrta 
de  Foresta).  A  collection  of  the  laws  of  the 
forest,  made  in  the  reign  of  Hen.   III. 

The  charta  de  forcsta  was  called  the  Great  Char- 
ter of  the  woodland  population,  nobles,  barons,  free- 
men, and  slaves,  loyally  granted  by  Henry  III. 
early  in  his  reign  (A.  D.  1217).  Inderwick,  King's 
Peace  159;  Stubb's  Charters  847.  There  is  a  dif- 
ference of  opinion  as  to  the  original  charter  of  the 
forest  similar  to  that  which  exists  respecting  the 
true  and  original  Magna  Carta  (q.  v.),  and  for  the 
same  reason,  viz.,  that  both  required  repeated  con- 
firmation by  the  kings,  despite  their 
vlolability.  This  justifies  the  remark  of  recent  his- 
torians as  to  the  great  charter  that  "this  theoret- 
ical sanctity  and  this  practical  insecurity  are  shared 
with  'the  Great  Charter  of  Liberties'  by  the  Char- 
ter of  the  Forest  which  was  issued  in  1217."  1  Poll. 
&  Maitl.  158.  It  is  asserted  with  great  positive- 
ness  by  Inderwick  that  no  forest  charter  was  ever 
granted  by  King  John,  but  that  Henry  III.  issued 
the  charter  of  1217  (which  he  puts  in  the  third  year 
of  the  reign,  which,  however,  only  commenced  Oct. 
28,  lilC),  in  pursuance  of  the  promises  of  his  father; 
and  Lord  Coke,  referring  to  it  as  a  charter  on  which 
the  lives  and  liberties  of  the  woodland  population 
depended,  says  that  it  was  confirmed  at  least  thirty 
times  between  the  death  of  John  and  that  of  Henry 
V.  ;    4  Co.    Inst.   303. 

Webster,  under  the  title  Magna  Charta,  says  that 
the  name  is  applied  to  the  charter  granted  in  the 
9th  Hen.  III.  and  confirmed  by  Edw.  I.  Prof.  Mait- 
land,  in  speaking  of  Magna  Carta,  refers  to  "the 
sister-charter  which  defined  the  forest  law"  as  one 
of  the  four  documents  which,  at  the  death  of  Henry 
III.,  comprised  the  written  law  of  England.  1  Soc. 
England  410.  Edward  I.  in  1297  confirmed  "the 
charter  made  by  the  common  consent  of  all  the 
realm  in  the  time  of  Henry  III.  to  be  kept  In  every 
point  without  breach."  Inderwick,  King's  Peace 
1G0;  Stubb's  Charters  486.  The  Century  Dictionary 
refers  to  this  latter  charter  of  Edw.  I.  as  the 
Charter  of  the  Forest;  but  it  was,  as  already  shown, 
only  a  confirmation  of  it,  and  a  comparison  of  the 
authorities  leaves  little  if  any  doubt  that  the  date 
was  as  above  stated  and  the  history  as  here  given. 
Its  provisions  may  be  found  in  Stubb's  Charters 
and  they  are  summarized  by  Inderwick,  In  his  re- 
cent work  above  cited.     See  Forest  Laws. 

CH ARTEL.  A  challenge  to  single  combat 
Used  at  the  period  when  trial  by  single  com- 
bat existed.     Cowell. 

CHARTER.  A  grant  made  by  the  sover- 
eign either  to  the  whole  people  or  to  a  por- 
tion of  them,  securing  to  them  the  enjoyment 
of  certain  rights.  1  Story,  Const,  §  161 ;  1 
Rla.  Com.  10S. 

A  charter  differs  from  a  constitution  in  this,  that 
the  former  is  granted  by  the  sovereign,  while  the 
latter  is  established  by  the  people  themselves:  both 
are  the   fundamental    law  of  the  land. 

A  deed.  The  written  evidence  of  things 
done  between  man  and  man.  Cowell.  Any 
conveyance  of  lands.  Any  sealed  instru- 
ment. Spelman.  See  Co.  Litt.  6 ;  1  Co.  1 ; 
F.  Moore  GS7. 

An  act  of  a  legislature  creating  a  corpora- 
tion. 

The  charter  of  a  corporation  consists  of 
its   articles   of    incorporation    taken    in   con- 


nection with  the  law  under  which  it  was  or- 
ganized ;  Chicago  Open  Roard  of  Trade  v. 
Bldg.  Co.,  136   111.   App.  I 

The  name  Is  ordinarily  applied  to  government 
grants  of  powers  or  privileges  of  a  permanent  or 
continuous  nature,  such  as  iueorr'  iration,  terri- 
torial dominion  or  Jurisdiction.  private 
persons  it  is  also  loosely  applied  to  det-ds  and  in- 
struments under  seal  for  the  conveyance  of  lands. 
Cent.  Diet. 

It  is  to  be  strictly  construed;  Rockland 
Water  Co.  v.  Water  Co.,  mi ''.Me.  644, 
785,  1  L.  R.  A.  888;  Oregon,  IB.  ft  Nav.  Co. 
v.  Ry.  Co.,  130  U.  S.  1,  9  Sup.  Ct.  409,  •:•-'  L. 
Ed.  837;  Bast  Line  &  R.  R.  Ry.  Co.  v.  Rush- 
ing, 69  Tex.  306,  6  S.  W.  834.  The  reserva- 
tion by  the  legislature  of  power  to  repeal  a 
charter  cannot  give  authority  to  take  away 
or  destroy  property  lawfully  acquired  or 
created  under  the  charter;  People  v.  O'Rrien. 
Ill  N.  Y.  1,  18  N.  E.  692,  2  L.  R.  A.  255,  7 
Am.  St.  Rep.  68  1.  A  charter  may  he  taken 
under  the  power  of  eminent  domain;  Ap- 
peal of  Philadelphia  &  Cray's  Ferry  Pass.  R. 
Co.,  102  Pa.  123.     See  Forfeiture. 

As  to  the  power  of  the  state  to  alter, 
amend  or  repeal  a  charter,  see  Impairing 
Obligations  of  a  Contract. 

The  early  history  of  the  genesis  of  the 
corporation,  particularly  of  municipal  cor- 
porations, is  elaborated  in  a  paper  by  a.  M. 
Eaton  in  Am.  Rar.  Ass'n  Rep.  (1902)  292, 
322,  in  which  it  is  said:  "The  facts  of  his- 
tory now  known,  and  many  of  which  were 
unknown  to  Coke,  show  that  charters  were 
granted  by  lords  of  manors,  lay  and  spirit- 
ual, as  well  as  by  kings  holding  manors  as 
of  their  own  demesne  and  not  acting  in  the 
exercise  of  any  royal  prerogative,  to  towns 
and  boroughs  confirming  the  continued  en- 
joyment of  'liberties'  in  the  future  as  they 
had  already  been  long  enjoyed  in  the  past. 
Sometimes  additional  new  'liberties'  were 
added,  and  afterwards  similar  brand-new 
charters  were  granted,  relating  only  to  fu- 
ture enjoyment  of  such  'liberties'  similar  to 
those  already  long  enjoyed  by  the  old  towns 
and  boroughs.  In  return  for  these  grants 
the  townspeople  agreed  at  first,  each  one 
severally,  to  render  his  feudal  dues  (or  rent 
in  place  thereof)  ;  then  a  group  of  the  prin- 
cipal townsmen  or  burghers  became  responsi- 
ble for  the  whole  sum,  and  finally  the  town 
itself  became  thus  liable  for  the  fee-ferm 
rent.  There  was  no  intention  on  either  part 
to  form  a  corporation,  indeed  neither  knew 
what  a  corporation  was;  for  the  name  did 
not  exist,  but  the  thing  itself  was  being 
gradually  evolved." 

Blank  Chabteb.  A  document  given  to 
the  agents  of  the  crown  in  the  reign  of  Rich- 
ard II.,  with  power  to  fill  up  as  they  pli 

Charter  or  Pabdon.  In  English  Law.  An 
instrument  under  the  great  seal  by  which  a 
pardon  is  granted  to  a  man  for  a  felony  or 
other  offence.     Black,  L.  Diet. 

See  Franchise. 


CHARTER-LAND 


470 


CHARTER-PARTY 


CHARTER-LAND.      In    English    Law. 

Land  formerly  held  by  deed  under  certain 
rents  and  free  services.  It  differed  in  noth- 
ing from  free  socage  land ;  and  it  was  also 
called  bookland.     2  Bla.  Com.  90. 

CHARTER-PARTY.  A  contract  of  af- 
freightment, by  which  the  owner  of  a  ship  or 
other  vessel  lets  the  whole  or  a  part  of  her 
to  a  merchant  or  other  person  for  the  con- 
veyance of  goods,  on  a  particular  voyage,  in 
consideration  of  the  payment  of  freight 

The  term  is  derived  from  the  fact  that  the  con- 
tract which  bears  this  name  was  formerly  written 
on  a  card  (charta-partita),  and  afterwards  the 
card  was  cut  into  two  parts  from  top  to  bottom  and 
one  part  was  delivered  to  each  of  the  parties,  which 
was  produced  when  required,  and  by  this  means 
counterfeits  were  prevented.  Abb.  Ship.  175;  Po- 
thier,-  Traits  de  Charte-partie,  gives  this  explana- 
tion taken  from  Boerius:  "It  was  formerly  usual  in 
England  and  Aquitaine  to  reduce  contracts  into 
writing  on  a  chart,  divided  afterwards  into  two 
parts  from  top  to  bottom,  of  which  each  of  the  con- 
tracting parties  took  one,  which  they  placed  together 
and  compared  when  they  had  occasion  to  know  the 
terms  of  their  contract." 

It  is  in  writing  not  generally  under  seal, 
in  modern  usage ;  1  Pars.  Adm.  &  Sh.  270 ; 
In  re  Cloherty,  2  Wash.  145,  27  Pac.  1064; 
Brown  v.  Ralston,  4  Rand.  (Va.)  504 ;  but 
may  be  by  parol ;  Ben.  Adm.  287 ;  Taggard 
v.  Loring,  16  Mass.  336,  8  Am.  Dec.  140; 
Muggridge  v.  Eveleth,  9  Mete.  (Mass.)  233; 
The  Phebe,  Ware  263,  Fed.  Cas.  No.  11,064 ; 
The  Tribune,  3  Sumn.  144,  Fed.  Cas.  No.  14,- 
171.  It  should  contain,  first,  the  name  and 
tonnage  of  the  vessel ;  see  Johnson  v.  Miln, 
14  Wend.  (N.  Y.)  195 ;  Ashburner  v.  Balchen, 
7  N.  Y.  262 ;  second,  the  name  of  the  cap- 
tain;  2  B.  &  Aid.  421;  third,,  the  names  of 
the  vessel-owner  and  the  freighter ;  fourth, 
the  place  and  time  agreed  upon  for  the  load- 
ing and  discharge ;  fifth,  the  price  of  the 
freight;  Kleine  v.  Catara,  2  Gall.  61,  Fed. 
Cas.  No.  7,869;  sixth,  the  demurrage  or  in- 
demnity in  case  of  delay ;  9  C.  &  P.  709 ; 
Clendaniel  v.  Tuckerman,  17  Barb.  (N.  Y.) 
184;  Lacombe  v.  Wain,  4  Binn.  (Pa.)  299; 
Brown  v.  Ralston,  9  Leigh  (Va.)  532;  Towle 
v.  Kettell,  5  Cush.  (Mass.)  18;  seventh,  such 
other  conditions  as  the  parties  may  agree 
upon;  13  East  343;  Bee  124.  The  owner 
who  signs  a  charter-party  impliedly  warrants 
that  the  vessel  is  commanded  by  competent 
officers ;  Tebo  v.  Jordan,  67  Huh  392,  22  N. 
Y.  Supp.  156.  One  of  the  conditions  implied 
in  a  charter-party  is  that  the  vessel  will 
commence  the  voyage  with  reasonable  dili- 
gence; waiting  four  months  violates  the  con- 
tract; Olsen  v.  Hunter-Benn  &  Co.,  54  Fed. 
530. 

It  may  either  provide  that  the  charterer 
hires  the  whole  capacity  and  burden  of  the 
vessel, — in  which  case  it  is  in  its  nature  a 
contract  whereby  the  owner  agrees  to  carry 
a  cargo  which  the  charterer  agrees  to  pro- 
vide,— or  it  may  provide  for  an  entire  sur- 
render of  the  vessel  to  the  charterer,  who 
then   hires   her   as   one  hires  a   house,  and 


takes  possession  in  such  a  manner  as  to  have 
the  rights  and  incur  the  liabilities  which 
grow  out  of  possession.  See  8  Ad.  &  E.  835 ; 
Palmer  v.  Gracie,  4  Wash.  C.  C.  110,  Fed. 
Cas.  No.  10,692;  Hooe  v.  Groverman,  1  Cra. 
(U.  S.)  214,  2  L.  Ed.  86 ;  Lyman  v.  Redman, 
23  Me.  289;  Clarkson  v.  Edes,  4  Cow.  (N.  Y.) 
470;  The  Volunteer,  1  Sumn.  551,  Fed.  Cas. 
No.  16,991 ;  Ruggles  v.  Bucknor,  1  Paine  358, 
Fed.  Cas.  No.  12,115.  If  the  object  sought 
can  be  conveniently  accomplished  without  a 
transfer  of  the  vessel,  the  courts  will  not  be 
inclined  to  consider  the  contract  as  a  demise 
of  the  vessel ;  U.  S.  v.  Cassedy,  2  Sumn. 
5S3,  Fed.  Cas.  No.  14,745 ;    Sweatt  v.  R.  Co., 

3  Cliff.  339,  Fed.  Cas.  No.  13,684;  Hooe  v. 
Groverman,  1  Cra.  (U.  Si)  214,  2  L.  Ed.  S6 ; 
Reed  v.  U.  S.,  11  Wall.  (U.  S.)  591,  20  L.  Ed. 
220;  Work  v.  Leathers,  97  U.  S.  379,  24  L. 
Ed.  1012. 

When  a  ship  is  chartered,  this  instrument 
serves  to  authenticate  many  of  the  facts  on 
which  the  proof  of  her  neutrality  must  rest, 
and  should  therefore  be  always  found  on 
board  chartered  ships ;   1  Marsh.  Ins.  407. 

Unqualified  charter-parties  are  to  be  con- 
strued liberally  as  mercantile  contracts,  and 
one  who  has  thereby  charged  himself  with 
an  obligation  must  make  it  good  unless  pre- 
vented by  the  act  of  God,  the  law,  or  the 
other  party;  The  B.  F.  Bruce,  50  Fed.  118. 
A  charter-party  controls  a  bill  of  lading  in 
case  of  conflict  between  them ;  Ardan  S.  S. 
Co.  v.  Theband,  35  Fed.  620.  In  construing 
a  charter-party,  matter  expunged  from  a 
printed  form  may  be  considered  in  determin- 
ing the  intention  of  the  parties ;  One  Thou- 
sand Bags  of  Sugar  v.  Harrison,  53  Fed.  828, 

4  C.  C.  A.  34.  See  Interpretation.  Quar- 
antine regulations  which  interfere  with  the 
charter  engagements  of  a  vessel  are  fairly 
within  the  clause  excepting  liability  for  re- 
sults caused  by  restraints  of  successor ;  The 
Progreso,  50  Fed.  835,  2  C.  C.  A.  45. 

CHARTERED  ACCOUNTANT.  See  Audi- 
tor. 

CHART  IS  REDDENDIS  (Lat.  for  return- 
ing charters).  A  writ  which  lay  against  one 
who  had  charters  of  feoffment  intrusted  to 
his  keeping,  which  he  refused  to  deliver. 
Reg.  Orig.  159.    It  is  now  obsolete. 

CHASE.  The  liberty  or  franchise  of  hunt- 
ing, oneself,  and  keeping  protected  against 
all  other  persons,  beasts  of  the  chase  within 
a  specified  district,  without  regard  to  the 
ownership  of  the  land.    2  Bla.  Com.  414. 

The  district  within  which  such  privilege  is 
to  be  exercised. 

A  chase  is  a  franchise  granted  to  a  subject,  and 
hence  is  not  subject  to  the  forest  laws ;  2  Bla.  Com. 
3S.  It  differs  from  a  park,  because  it  may  be  an- 
other's ground,  and  is  not  enclosed.  It  is  said  by 
some  to  be  smaller  than  a  forest  and  larger  than  a 
park.  Termes  de  la  Ley.  But  this  seems  to  be  a 
customary   incident,  and  not  an  essential  quality. 

The  act  of  acquiring  possession  of  animals 
ferw  natures  by  force,  cunning,  or  address. 


CHASE 


471 


CHATTEL 


The  hunter  acquires  a  right  to  such  ani- 
mals by  occupancy,  and  they  become  his 
property;  4  Toullier,  n.  7.  No  man  has  a 
right  to  enter  on  tlie  lands  of  another  for 
the  purpose  of  hunting,  without  his  consent; 
11  East  249;  Pothler,  Proprtete,'  pt  1,  c.  2, 
a.  2. 

CHASTE.  In  the  seduction  statutes  it 
means  actua]  virtue  in  conduct  and  principle. 
One  who  falls  from  virtue  and  afterwards 
reforms  is  chaste  within  the  meaning  of  the 
statutes;  Wood  v.  State,  18  <ia.  288,  15  Am. 
Rep.  664;  Andre  v.  State,  5  la.  389,  OS  Am. 
Dec.  708;  Carpenter  v.  People,  8  Barb.  (N. 
Y.)  003;  Boyce  v.  People,  55  N.  Y.  644;  Wil- 
son v.  State,  73  Ala.  527. 

CHASTITY.  That  virtue  which  prevents 
the  unlawful  commerce  of  the  sexes. 

A  woman  may  defend  her  chastity  by  kill- 
ing her  assailant.     See  Sffl  i   I  mi  i.xci:. 

Sending  a  letter  to  a  married  woman  so- 
liciting her  to  commit  adultery  is  an  indict- 
able offence;  State  v.  Avery,  7  Conn.  2<;<l.  18 
Am.  Dec.  105.  See  Shannon  v.  Com.,  14  Pa. 
226.  In  England,  and  perhaps  elsewhere,  the 
mere  solicitation  of  chastity  is  not  indicta- 
ble; 2  Chit.  1'r.  47S.  Words  charging  a  wo- 
man with  a  violation  of  chastity  are  action- 
able in  themselves,  because  they  charge  her 
with  a  crime  punishable  by  law.  and  of  a 
character  to  degrade  and  disgrace  her,  and 
exclude  her  from  society ;  Frisbie  v.  Fowler, 
2  Conn.  707 ;  Brown  v.  Nickerson,  5  Gray 
(Mass.)  2 ;  Heard,  Lib.  &  SI.  §  36 ;  Brooker 
v.  Coffin,  5  Johns.  (N.  Y.)  190,  4  Am.  Dec. 
337 ;  Gosling  v.  Morgan,  32  Pa.  275 ;  but  not 
so  in  the  District  of  Columbia ;  Pollard  v. 
Lyon,  91  U.  S.  225,  23  L.  Ed.  30S.  See  Li- 
rex;  Promise  of  Marriage. 

CHATTEL  (Norm.  Fr.  goods,  of  any  kind). 
Every  species  of  property,  movable  or  im- 
movable, which  is  less  than  a  freehold. 

In  the  Grand  Coutumicr  of  Normandy  it  Is  de- 
scribed as  a  mere  movable,  but  is  set  in  opposition 
to  a  fief  or  feud;  so  that  not  only  goods,  but  what- 
ever was  not  a  feud  or  fee,  were  accounted  chattels ; 
and  it  is  in  this  latter  sense  that  our  law  adopts  It. 
2   Bla.  Com.  285. 

Real  chattels  are  interests  which  are  an- 
nexed to  or  concern  real  estate:  as,  a  lease 
for  years  of  land.  And  the  duration  of  the 
lease  is  immaterial,  whether  it  be  for  one  or 
a  thousand  years,  provided  there  be  a  cer- 
tainty aboui  it  and  a  reversion  or  remainder 
in  some  oilier  person.  A  lease  to  continue 
until  a  certain  sum  of  money  can  he  raised 
out  of  the  routs  is  of  the  same  description; 
and  so  in  fact  will  be  found  to  be  any  other 
Interest  In  real  estate  whose  duration  is  lim- 
ited to  a  time  certain  beyond  which  it  can- 
not subsist,  and  which  is.  therefore,  some- 
thing less  than  a  freehold.  A  lease  giving 
the  exclusive  privilege  for  a  term  of  years 
of  boring  and  digging  for  oil  and  other  min- 
erals is  also  a  chattel;  Brown  v.  Beecher, 
120  Pa.  5P0,  15  Atl.  008. 


Personal  chattels  are  properly  things  mov- 
able, which  may  be  c  rried  out  by  the 
owner;     such    as    aninia.  >old    stuff, 

money.   Jewels,   corn,   gai  ad   every- 

thing else  that  can  be  put  n   and 

transferred   from   one  place   I 
Kent   340;    Co.   Litt   48  a;    4  In  re 

Cay,  5  Mass.  41!) ;  Brewster  v.  Hill,  1  N.  II. 
350. 

Chattels,    whether    real    or  '.    are 

treated   as    persona]    property    in 
spect,  and.  In  case  of  the  death  of  I 
usually  belong  to  the  executor   or  adminis- 
trator, and  not  to  the  heir  at  law. 
some  chattels,  however,  which,  as  Chancellor 
Kent  o  though  they  be  movable,  yet 

are  necessarily  attached  to  the  freehold:  con- 
tributing to  its  value  and  enjoyment,  they  go 
along  with  it  in  the  same  path  of  descent  or 
alienation.  This  is  the  case  with  deeds,  and 
other  papers  which  constitute  the  muniments 
of  title  to  the  inheritance;  the  shelves  and 
family  pictures  in  a  house;  and  the  posts 
and  rails  of  an  enclosure.  It  is  also  under- 
stood that  pigeons  in  a  pigeon-house,  deer  in 
a  park,  and  fish  in  an  artificial  pond  go  with 
the  inheritance,  as  heirlooms  to  the  heir  at 
law.  But  fixtures,  or  such  things  of  a  per- 
sonal nature  as  are  attached  to  the  realty. 
whether  for  a  temporary  purpose  or  other- 
wise, become  chattels,  or  not,  according  to 
circumstances;  Mitch.  It.  P.  21.  See  Fix- 
tuees;  •-'  Ken;  342;  Co.  Litt  20  a,  118;  12 
Price  163;  11  Co.  50  b;  Bacon,  Abr.  Baron, 
etc.  C,  2;  Dane,  Abr.  Index;  Com.  Dig. 
Biens,  A. 

CHATTEL      INTEREST.     An     interest     in 

corporeal  hereditaments  less  than  b 
2  Kent    342. 

There  may  be  a  chattel  interest  in  real 
iy,  as  in  case  of  a  lease;  Stearns.  Real 
Act.  115.  A  term  for  years,  no  mat: 
how  long  duration,  is  but  a  chattel  interest, 
unless  declared  otherwise  by  statute.  The 
subject  is  treated  in  1  Washburn.  R.  P.  310. 

CHATTEL  MORTGAGE.  A  transfer  of' 
personal  property  as  security  for  a  debt  or 
obligation  in  such  form  that  upon  failure  of 
the  mortgagor  to  comply  with  the  terms  of 
the  contract,  the  title  to  the  property  will  be 
in  the  mortu'a^oe.     Thomas,  Mort.  427. 

An  absolute  pledge,  to  become  an  absolute 
:     [f    n.  t    r.  d(        id    at    a    fixed    time. 
Cortelyou  v.  Lansing,  ii  Caines,  «'as.  (N.  Y.) 
L'00.  per  Kent.  Ch. 

Strictly  speaking,  a  conditional  stile  of  a 
chattel  as  security  for  the  payment  of  a  debt 
or  the  performance  of  seme  other  obligation. 
Jones.  Chat.  Mort.  §  1.  The  condition  is  that 
the  sale  shall  be  void  upon  the  performance 
of  the  condition  named.  If  the  condition  be 
not  performed,  the  chattel  is  irredeemable  at 
law:  but  it  may  be  otherwise  in  equity  or 
by  statute:  id.  The  title  is  fully  vested  in 
the  m<  and  can  be  defeated  only  by 


CHATTEL  MORTGAGE 


472 


CHATTEL  MORTGAGE 


the  due  performance  of  the  condition;  upon 
a  breach,  the  mortgagee  may  take  possession 
and  treat  the  chattel  as  his  own;  id.;  Por- 
ter v.  Parmly,  34  N.  Y.  Sup.  Ct.  398.  See 
Flanders  v.  Thomas,  12  Wis.  413. 

At  common  law  a  chattel  mortgage  may  be 
made  without  writing ;   it  is  valid  as  between 
the  parties;    Bank  of  Rochester  v.  Jones,  4 
N.  Y.  497,  55  Am.  Dec.  290.     A  verbal  chat- 
tel mortgage  is  valid  between  the  parties; 
Gilbert   v.    Vail,    60    Vt.    261,    14    Atl.    542; 
Stearns  v.  Gafford,  56  Ala.  544 ;   Bardwell  v. 
Roberts.  66  Barb.  (N.  Y.)  433 ;   Bates  v.  Wig- 
gin,  37  Kan.  44,  14  Pac.  442,  1  Am.  St.  Rep. 
234;    Carroll  Exck.   Bank  v.   Bank,   50  Mo. 
App.  92 ;   and  as  to  third  parties  with  notice ; 
Sparks  v.  Wilson,  22  Neb.  112,  34  N.  W.  Ill ; 
contra,  Lazarus  v.  Bank,  72  Tex.  359,  10  S. 
W.  252;    Knox  v.  Wilson,  77  Ala.  309;    and 
even  as  against  third  parties  if  accompanied 
by  possession  in  the  mortgagee ;   Bardwell  v. 
Roberts,  66  Barb.  (N.  Y.)  433;    but  delivery 
is  not  essential  in  all  cases  to  the  validity 
of  a  chattel  mortgage;    Morrow  v.  Turney's 
Adm'r,  35  Ala.  131 ;   but  see  Bardwell  v.  Rob- 
erts, 66  Barb.  (N.  Y.)  433.     It  differs  from  a 
pledge  in  that  in  case  of  a  mortgage  the  title 
is   vested  in  the  mortgagee,   subject  to   de- 
feasance upon  the  performance  of  the  condi- 
tion ;    while  in  the  case  of  a  pledge,  the  title 
remains  in  the  pledgor,  and  the  pledgee  holds 
the  possession  for  the  purposes  of  the  bail- 
ment ;    White  v.  Cole,  24  Wend.  (N.  Y.)  116 ; 
Conner   v.    Carpenter,   28   Vt.   237;     Day    v. 
Swift,  48  Me.  36S;    Heyland  v.  Badger,  35 
Cal.  404 ;    Badlam  v.  Tucker,  1  Pick.  (Mass.) 
3S9,  11  Am.   Dec.  202;     Sims  v.  Canfield,   2 
Ala.  555.     By  a  mortgage  the  title  is  trans- 
ferred;   by  a  pledge,  the  possession;    Jones, 
Mort.  §  4. 

Upon  default,  in  cases  of  pledge,  the  pledg- 
or may  recover  the  chattel  upon  tendering 
the  amount  of  the  debt  secured ;  but  in  case 
of  a  mortgage,  upon  default  the  chattel,  at 
law,  belongs  to  the  mortgagee;  Porter  v. 
Parmly,  43  How.  Pr.  (N.  Y.)  445.  In  equity 
tie  may  be  held  liable  to  an  account;  Stod- 
dard v.  Denison,  38  id.  296.  Apart  from 
statutes,  no  special  form  is  required  for  the 
creation  of  a  chattel  mortgage.  A  bill  of  sale 
absolute  in  form,  with  a  separate  agreement 
of  defeasance,  constitute  together  a  mort- 
gage, as  between  the  parties;  Carpenter  v. 
Snelling,  97  Mass.  452 ;  Taber  v.  Hamlin,  97 
Mass.  489,  93  Am.  Dec.  113 ;  Davis  v.  Hub- 
bard, 38  Ala.  185;  Polbemus  v.  Trainer,  30 
Cal.  685;  Soell  v.  Hadden,  85  Tex.  1S2,  19 
S.  W.  10S7 ;  State  v.  Bell,  2  Mo.  App.  102 ; 
or  a  note  with  an  endorsement  on  the  back 
that  at  any  time  the  maker  agreed  to  make 
a  chattel  mortgage ;  Riddle  v.  Norris,  46  Mo. 
App.  512.  And  in  equity,  the  defeasance  may 
be  subsequently  executed;  Locke's  Ex'r  v. 
Palmer,  26  Ala.  312.  A  parol  defeasance  is 
not  good  in  law;  Harper  v.  Ross,  10  Allen 
(Mass.)  332;    Bryant  v.  Crosby,  36  Me.  562, 


5S  Am.  Dec.  767;  Montany  v.  Rock,  10  Mo. 
506;  contra,  Fuller  v.  Parrish,  3  Mich.  211; 
but  it  is  in  equity ;  Coe  v.  Cassidy.  72  N.  Y. 
133 ;  Laeber  v.  Langhor,  45  Md.  477 ;  Stokes 
v.  Hollis,  43  Ga.  262;  National  Ins.  Co.  v. 
Webster,  83  111.  470;  Bartel  v.  Lope,  6  Or. 
321 ;  Hurford  v.  Harned,  6  Or.  363 ;  even  as 
to  third  parties  with  notice;  Omaha  Book 
Co.  v.  Sutherland,  10  Neb.  334,  6  N.  W.  367. 
See  Conway  v.  Iron  Co.,  33  Neb.  454,  50  N. 
W.  326.  Tbe  question  whether  a  bill  of  sale 
was  intended  as  a  chattel  mortgage  is  for 
the  jury ;  King  v.  Greaves,  51  Mo.  App.  534. 
In  a  conditional  sale,  the  purchaser  has 
merely  a  right  to  purchase,  and  no  debt  or 
obligation  exists  on  the  part  of  the  vendor ; 
this  distinguishes  such  a  sale  from  a  mort- 
gage;  Weathersly  v.  Weathersly,  40  Miss. 
462,  90  Am.  Dec.  344 ;  Gomez  v.  Kamping,  4 
Daly  (N.  Y.)  77. 

Where  there  is  an  absolute  sale  and  a  si- 
multaneous agreement  of  resale,  the  tenden- 
cy is  to  consider  the  transaction  a  mortgage ; 
Barnes  v.  Holcomb,  12  Sm.  &  M.  (Miss.)  306 ; 
Fowler  v.  Stoneum,  11  Tex.  478,  62  Am.  Dec. 
490 ;  Folsom  v.  Fowler,  15  Ark.  280 ;  but  not 
when  the  intention  of  the  parties  is  clearly 
otherwise;  Forkner  v.  Stuart,  6  Gratt.  (Va.) 
197;  Bracken  v.  Chaffin,  5  Humph.  (Tenn.) 
575. 

It  is  not  necessary  that  a  written  chattel 
mortgage  should  be  under  seal;  Gerrey  v. 
White,  47  Me.  504;  Sherman  v.  Fitch,  98 
Mass.  59;  Ping.  Chat.  Mort.  45;  Gibson  v. 
Warden,  14  Wall.  (U.  S.)  244,  20  L.  Ed.  797 ; 
Sweetzer  v.  Mead,  5  Mich.  107. 

A  chattel  mortgage  of  a  crop  must  desig- 
nate the  land ;  W.  L.  Hurley  &  Sons  v.  Ray, 
160  N.  C.  376,  76  S.  E.  234. 

At  common  law  a  mortgage  can  be  given 
only  of  chattels  actually  in  existence,  and 
belonging  to  the  mortgagor  actually  or  po- 
tentially; Pierce  v.  Emery,  32  N.  H.  484; 
Roy  v.  Goings,  6  111.  App.  162;  Looker  v. 
Peckwell,  38  N.  J.  L.  253;  Williams  v. 
Briggs,  11  R.  L  476,  23  Am.  Rep.  518 ;  Cook 
v.  Corthell,  11  R.  I.  482,  23  Am.  Rep.  51S; 
Bouton  v.  Haggart,  6  Dak.  32,  50  N.  W.  197 ; 
and  even  though  the  mortgagor  may  after- 
wards acquire  title,  the  mortgage  is  bad 
against  subsequent  purchasers  and  creditors ; 
but  it  is  otherwise  between  the  parties ;  Lud- 
wig  v.  Kipp,  20  Hun  (N.  Y.)  265 ;  claims  for 
money  not  yet  earned  may  be  the  subject  of 
a  chattel  mortgage;  Sandwich  Mfg.  Co.  v. 
Robinson,  83  la.  567,  49  N.  W.  1031,  14  L.  R. 
A.  126,  and  an  elaborate  note  thereto. 

In  equity  the  rule  is  different;  the  mort- 
gage, though  not  good  as  a  conveyance,  is 
valid  as  an  executory  agreement;  the  mort- 
gagor is  considered  as  a  trustee  for  the 
mortgagee ;  Williams  v.  Briggs,  11  R.  I.  476, 
23  Am.  Rep.  518 ;  10  H.  L.  Cas.  191 ;  Mitch- 
ell v.  Winslow,  2  Sto.  630,  Fed.  Cas.  No. 
9,673 ;  Beall  v.  White,  94  U.  S.  3S2,  24  L.  Ed. 
173;    Schuelenburg  &  Boeckler  v.  Martin,  2 


CHATTEL  MORTGAGE 


473 


CHATTEL  MORTGAGE 


Fed.  747;  Ellott  v.  Butt,  1  Woods,  214,  Fed. 
Cas.  No.  4.384;  Perry  v.  White,  111  N.  C. 
107,  1G  S.  E.  172.  But  see  Moody  v.  Wright, 
13  Mete.  (Mass.)  17,  46  Am.  Dec.  706;  Hun- 
ter v.  Bosworth,  43  Wis.  583.  Under  this 
principle  all  sorts  of  future  interests  in  chat- 
tels may  be  mortgaged ;  Jones,  Chat  Mort 
§  174. 

The  crops  of  specified  land  or  the  future 
young  of  animals  could  at  one  time  be  sold 
or  mortgaged  on  the  ground  that  seller  had 
potential  possession  and  passed  legal  title ; 
Hob.  132,  but  the  English  Sale  of  Goods 
Act,  §  5,  provides  that  where  by  a  contract 
of  sale  the  seller  purports  to  effect  a  present 
sale  of  future  goods,  the  contract  operates 
as  an  agreement  to  sell  goods.  No  excep- 
tion is  made  in  favor  of  property  which  at 
common  law  was  the  subject  of  potential 
possession.  This  seems  to  change  the  rule 
in  England.  The  mere  agreement  to  mort- 
gage personalty  subsequently  to  be  acquired 
gave  the  mortgagee  a  lien  upon  the  proper- 
ty; 10  H.  L.  Cas.  191;  U903]  2  K.  B.  307.  It 
is  essential  that  the  mortgagee  shall  have 
actually  advanced  his  money ;  13  App.  Cas. 
523. 

Mortgages  of  future  acquired  chattels 
where  the  mortgagor  is  in  possession  are 
held  invalid  against  an  attachment  or  levy 
by  creditors;  American  Surety  Co.  v.  Mfg. 
Co.,  100  Fed.  40;  Tatman  v.  Humphrey,  184 
Mass.  361,  68  N.  E.  844,  63  L.  R.  A.  738, 
100  Am.  St.  Rep.  562;  Francisco  v.  Ryan, 
54  Ohio  St.  307,  43  N.  B.  1045,  56  Am.  St 
Rep.  711;  Girard  Trust  Co.  v.  Mellor,  156 
Pa.  579,  27  Atl.  662;  contra,  Riddle  v.  Dow, 
98  la.  7,  66  N.  W.  1066,  32  L.  R.  A.  811; 
Cunningham  v.  Woolen  Mills,  69  N.  J.  Eq. 
710,  61  Atl.  372.  The  general  rule  is  that 
a  chattel  mortgagee  has  title,  and  so  a  mort- 
gage on  animals  covers  the  increase,  though 
not  mentioned  in  the  mortgage  on  the  prop- 
erty, partus  sequitur  ventrcm;  Northwestern 
Nat  Bank  v.  Freeman,  171  U.  S.  620,  19 
Sup.  Ct  36,  43  L.  Ed.  307;  but  in  those 
states  where  such  a  mortgage  gives  only  a 
lien,  then  it  is  limited  to  the  property  actu- 
ally described;  Demers  v.  Graham.  36  Mont. 
402,  93  Pac.  268,  14  L.  R.  A.  (N.  S.)  431,  122 
Am.  St  Rep.  384,  13  Ann.  Cas.  97;  contra, 
First  Nat.  Bank  v.  Investment  Co.,  S6  Tex. 
636,  26  S.  W.  4SS.  See  19  liar  v.  L.  Rev. 
557,   by   Samuel  Williston. 

A  chattel  mortgage  on  growing  crops,  giv- 
en as  security  for  a  note  and  for  future 
advances  and  merchandise  sold,  is  valid ; 
Souza  v.  Lucas  (Cal.)  100  Pac.  115. 

The  registration  statutes  simply  provide 
a  substitute  for  change  of  possession.  Be- 
tween the  parties,  a  change  of  possession  is 
unnecessary;  if  there  is  a  change  of  pos- 
session, registration  is  not  required;  Mor- 
row v.  Reed,  30  Wis.  81;  Janvrin  v.  Fogg, 
49  N.  H.  340;  Fordice  v.  Gibson,  129  Ind. 
7,  28  N.  E.  303.  At  common  law  an  unre- 
corded   chattel    mortgage    is    prima    facie 


fraudulent  and  void  as  to  creditors,  where 
there  is  no  change  of  p.  .   but  such 

presumption    may    be    rebutted ;    Pyeatt    v. 
Powell,  51  Fed.  551,  2  C.  C.  A.  367;  Frank- 
houser  v.  Worrall,  51  Kan.   104,  32Pac. 
See  Frost  v.   Mott,  34  N.    Y.  253;   Kleine  v. 
Katzenberger,  20  Ohio  St  110,   5  Am. 
630. 

Possession  by  the  mortgagee  cures  defects 
in  the  form  of  the  mortgage,  or  its  i 
tion;  Springer  v.  Lipsis,  209  111.  261,  To  N. 
E.  641;  Farmers'  &  Merchants'  Bank  v. 
Orme,  5  Ariz.  304,  52  Pac.  473;  so  of  <i 
in  acknowledgment  when  possession  is  I 
before  a  third  party's  lien  attaches;  Garner 
v.  Wright,  52  Ark.  385,  12  S.  W.  785,  6  L. 
R.  A.  715;  and  so  as  to  the  affidavit  ac- 
companying the  mortgage;  Chicago  Title  & 
Trust  Co.  v.  O'Marr,  18  Mont.  568,  46  Pac. 
809,  17  Pac.  4;  and  as  to  any  insufficiency 
in  the  description  of  the  chattels;  Frost  v. 
Bank,  68  Wis.  234,  32  N.  W.  110;  Kelley  v. 
Andrews,  102  la.  119,  71  N.  W.  251.  But 
if  the  mortgage  is  not  recorded  and  is  there- 
by invalid,  it  is  not  validated  by  the  mort- 
s  possession  as  to  the  mortgagor's 
creditors  whose  debts  were  created  or  whose 
rights  attached  after  execution  and  before 
possession  taken;  In  re  Bothe,  173  Fed.  597, 
97  C.  C.  A.  547;  Stephens  v.  I'erriue,  113  N. 
Y.  476,  39  N.  E.  11.  Where  the  moi •; 
takes  contemporaneous  possession  and  re- 
tains it,  recording  is  not  essential;  Fordice 
v.  Gibson,  129  Ind.  7,  28  N.  E.  303;  Brock- 
way  v.  Abbott,  37  Wash.  263,  79  Pac.  924; 
and,  though  not  recorded,  a  chattel  mor 
is  good  against  all  the  world  if,  after  condi- 
tion broken,  the  mortgagee  takes  possession; 
Garrison  v.  Carpet  Co.,  21  Okl.  643,  07  Pac 
97S,  129  Am.  St.  Rep.  799. 

A  mortgage  not  filed  under  the  statute  is 
good  against  a  subsequent  bill  of  sale  made 
by  the  mortgagor  after  the  mortgagee  was 
in  possession ;  Smith  v.  Connor  (Tex.)  46 
S.  W.  267.  So  of  a  subsequent  chattel  mort- 
gage made  by  the  mortgagor ;  National  Bank 
of  Metropolis  v.  Sprague,  21  N.  J.  Eq.  530; 
and  an  attachment  subsequently  levied 
against  the  mortgagor;  Baldwin  v.  Flash, 
59  Miss.  61 ;  Isenberg  v.  Fansler,  36  Kan. 
402,   13  Tac.  573. 

The  English  Bill  of  Sales  Acts  only  re- 
quired written  chattel  mortgages  to  be  re- 
corded, but  they  need  not  be  written.  The 
mortgage  statutes  on  recording  are  collect- 
ed in  Jones,  Chattel  Mortgages,  §  100  et  seq. 
Some  make  the  mortgagor's  place  of  resi- 
dence the  place  of  record;  others  the  place 
where  the  property  is  situated  at  the  time; 
others  require  them  to  be  reriled  every  year, 
and  so  on.  In  general,  innocent  third  par- 
ties will  prevail  over  the  holder  of  a  chattel 
mortgage  or  conditional  bill  of  sale,  unless 
the  instrument  has  been  recorded  or  the 
goods  have  been  delivered ;  Funk  v.  Paul, 
64  Wis.  35,  24  N.  W.  419,  54  Am.  Rep.  576. 
As  a  general  rule,  where  a  judgment  is  not 


CHATTEL  MORTGAGE 


474 


CHATTEL  MORTGAGE 


a  lien  upon  personal  property,  a  mortgage 
recorded  after  judgment,  but  before  execu- 
tion, bas  priority ;  Jones,  Cbatt.  Mortg.  § 
245d.  It  is  beld  that  where  a  mortgage  is 
not  recorded  nor  possession  taken  by  the 
mortgagee,  it  is  good  as  against  general, 
but  not  judgment,  creditors;  Stephens  v. 
Meriden  Britannia  Co.,  160  N.  Y.  180,  54 
N.  E.  781,  73  Am.  St.  Rep.  G78.  A  mortgagee 
who  has  not  taken  possession  or  recorded 
his  mortgage  immediately  cannot  protect 
himself  against  the  mortgagor's  creditors ; 
Roe  v.  Meding,  53  N.  J.  Eq.  350,  30  Atl.  587, 
33  Atl.  394. 

1  An  unrecorded  chattel  mortgage  is  valid 
against  a  general  assignment  by  the  mort- 
gagor for  his  creditors;  Jones,  Chatt.  Mortg. 
§  244;  but  is  invalid  as  to  a  receiver  of  the 
mortgagor  because  he  represents  creditors ; 
In  re  Wilcox  &  Howe  Co.,  70  Conn.  220,  39 
Atl.  163;  Fidelity  Trust  Co.  v.  Clay  Co.,  70 
N.  J.  Eq.  550,  67  Atl.  1078  (there  being  cred- 
itors whose  debts  are  a  lien  upon  the  chat- 
tels) ;  contra;  Berline  Machine  Works  v. 
Trust  Co.,  60  Minn.  161,  61  N.  W.  1131; 
Ryder  v.  Ryder,  19  R.  I.  1SS,  32  Atl.  919. 

Where  statutes  provide  that  a  mortgage 
of  chattels  shall  be  void  unless  the  mort- 
gage is  filed  or  there  shall  be  an  actual  and 
continued  change  of  possession,  it  is  essen- 
tial that  such  provisions  be  strictly  complied 
with;  Buckstaff  Bros.  Mfg.  Co.  v.  Snyder, 
54  Neb.  538,  74  N.  W.  S63;  McTaggart  v. 
Rose,  14  Ind.  230.  See  Mower  v.  McCarthy, 
79  Vt.  142,  64  Atl.  578,  7  L.  R.  A.  (N.  S.) 
418,  118  Am.  St.  Rep.  942. 

The  removal  of  the  mortgaged  chattels 
from  the  county  where  the  mortgage  on 
them  was  recorded  does  not  require  it  to 
be  recorded  in  the  new  place;  Jones,  Chatt. 
Mortg.  §  260;  National  Bank  of  Commerce 
v.  Jones,  18  Okl.  555,  91  Pac.  191,  12  L.  R. 
A.  (N.  S.)  311,  11  Ann.  Cas.  1041. 

Statutes  regulating  chattel  mortgages  ex- 
ist in  all  of  the  states  except  Louisiana. 

Under  the  old  Bankrupt  Act  it  was  held 
that  a  bankrupt  assignee  took  only  the 
debtor's  title  to  goods  in  the  case  of  an 
unrecorded  mortgage ;  Stewart  v.  Piatt,  101 
U.  S.  731,  25  L.  Ed.  816 ;  and  so  in  England ; 
12  M.  &  W.  855.  The  rule  was  generally 
otherwise  in  insolvency;  Jones,  Chatt.  Mortg. 
§  242.  The  present  Bankrupt  Act  (§  67  a) 
provides  that  liens  which  are  invalid  against 
creditors  shall  be  invalid  against  the  trustee. 
See  Knapp  v.  Trust  Co.,  216  XL  S.  545,  30 
Sup.  Ct.  412,  54  L,  Ed.  610.  It  leaves  open  to 
the  individual  states  to  allow  the  acquisition 
of  a  lien  by  the  mortgagee  by  taking  posses- 
sion at  any  time  before  actual  bankruptcy, 
and  it  is  immaterial  that  possession  is  taken 
with  the  mortgagor's  consent ;  Humphrey  v. 
Tatman,  19S  U.  S.  91,  25  Sup.  Ct.  567,  49  L. 
Ed.  956;  Thompson  v.  Fairbanks,  196  U.  S. 
516,  25  Sup.  Ct.  306,  49  L.  Ed.  577. 

A  chattel  mortgage  void  by  a  state  stat- 
ute  as    to   creditors   of   the   mortgagor,   for 


want  of  change  of  possession,  is  invalid  as 
to  his  trustees  in  bankruptcy. 

A  chattel  mortgage  with  power  of  sale 
and  a  deed  of  trust  are  practically  one  and 
the  same  instrument,  as  understood  in  the 
District  of  Columbia ;  Hunt  v.  Ins.  Co.,  196 
U.  S.  47,  25  Sup.  Ct.  179,  49  L.  Ed.  381. 

No  mortgage  of  a  vessel  is  valid  against 
third  parties  without  notice,  unless  recorded 
in  the  office  of  the  collector  of  customs  of 
the  port  where  the  vessel  is  enrolled ;  Rev. 
Stat,  §  4192,  etc.  As  between  parties  and 
those  who  have  notice,  registration  is  not 
required;  Moore  v.  Simonds,  100  U.  S.  145, 
25  L.  Ed.  590;  Best  v.  Staple,  61  N.  T.  71; 
The  John  T.  Moore,  3  Wood  61,  Fed.  Cas. 
No.  7,430.  As  to  Extraterritoriality  of  Chat- 
tel Mortgages,  see  Conflict  of  Laws. 

See  Mortgage. 

CHAUD-MEDLEY  (Fr.  chaud,  hot).  The 
killing  of  a  person  in  the  heat  of  an  affray. 
It  is  distinguished  by  Blackstone  from  chance- 
medley,  an  accidental  homicide.  4  Bla.  Com.  184. 
The  distinction  is  said  to  be,  however,  of  no  great 
importance.  1  Russ.  Cr.  660.  Chance-medley  is  said 
to  be  the  killing  in  self-defence,  such  as  happens  on 
a  sudden  rencounter,  as  distinguished  from  an  ac- 
cidental homicide.    Id. 

CHEAT.  "Deceitful  practices  in  defraud- 
ing or  endeavoring  to  defraud  another  of  his 
known  right,  by  some  wilful  device,  con- 
trary to  the  plain  rules  of  common  honesty." 
Hawk.  PI.  Cr.  b.  2,  c.  23,  §  1. 

The  fraudulent  obtaining  the  property  of 
another  by  any  deceitful  and  illegal  prac- 
tice or  token  (short  of  felony)  which  affects 
or  may  affect  the  public. 

In  order  to  constitute  a  cheat  or  indict- 
able fraud,  there  must  be  a  prejudice  re- 
ceived ;  and  such  injury  must  affect  the 
public  welfare,  or  have  a  tendency  so  to  do ; 
2  East,  PI.  Cr.  817;  1  Deacon,  Cr.  Law  225. 

It  seems  to  be  a  fair  result  of  the  cases, 
that  a  cheat,  in  order  to  be  indictable  at 
common  law,  must  have  been  public  in  its 
nature,  by  being  calculated  to  defraud  num- 
bers, or  to  deceive  or  injure  the  public 
in  general,  or  by  affecting  the  public  trade 
or  revenue,  the  public  health,  or  being  in 
fraud  of  public  justice,  etc.  And  the  other 
cases  to  be  found  in  the  books,  of  cheats  ap- 
parently private  which  have  been  yet  held 
to  be  indictable  at  common  law,  will,  upon 
examination,  appear  to  involve  considera- 
tions of  a  public  nature  also,  or  else  to  be 
founded  in  conspiracy  or  forgery.  Thus,  it  is 
not  indictable  for  a  man  to  obtain  goods  by 
false  verbal  representations  of  his  credit  in 
society,  and  of  his  ability  to  pay  for  them ; 
Com.  v.  Warren,  6  Mass.  72;  or  to  violate 
his  contract,  however  fraudulently  it  be 
broken;  Com.  v.  Hearsey,  1  Mass.  137;  or 
fraudulently  to  deliver  a  less  quantity  of 
amber  than  was  contracted  for  and  repre- 
sented;  2  Burr.  1125;  1  W.  Bla.  273;  or  to 
receive  good  barley  to  grind,  and  to  return 
instead  a  musty  mixture  of  barley  and  oat- 


CHEAT 


475 


CHE<  K 


meal;  4  Maule  &  S.  214.  See  2  East,  PI.  Cr. 
816;  People  v.  Babcock,  7  Johns.  (X.  Y.)  201, 
5  Am.  Dec.  256;  Com.  v.  Morse,  2  Mass.  l.;s; 
Cross  v.  Peters,  1  Greenl.  (Me.)  387,  10  Am. 
Dec.  78;  Hill  v.  State.  1  Yorg.  (Tenn.i  76, 
24  Am.  'Dec.  441;  Republics  v.  Powell,  l 
Dall.  (Pa.)  47,  1  L.  Ed.  31;  1  B.  &  H.  L. 
Cr.  Cas.  1.  Refusing  to  return  a  pron 
note  obtained  for  the  purpose  <>f  examina- 
tion is  merely  a  private  fraud;  People  v. 
Miller,   11   Johns.    (N.   Y.)   371. 

To  cheat  a  man  of  bis  money  or  goods; 
by  using  false  weights  or  false  measures,  has 
been  Indictable  at  common  law  from  time  im- 
memorial; 3  Greenl.  Ev.  g  86;  Com.  v.  War- 
ren, 6  Mass.  71'.  See  Republica  v.  Powell,  1 
Dall.  (Pa.)  47,  1  L.  Ed.  31.  In  ad. lit  ion  to 
this,  the  statute  3.3  lien.  VIII.  1,  which  has 
been  adopted  and  considered  as  a  part  of  the 
common  law  in  some  of  the  United  States, 
and  the  provisions  of  which  have  been  either 
recognized  as  common  law  or  expressly  en- 
acted in  nearly  all  of  them,  was  directed,  as 
appears  from  its  title  and  preamble,  against 
such  persons  as  received  money  or  goods  by 
means  of  counterfeit  letters  or  privy  tokens 
in  other  men's  names;  Com.  v.  Warren,  6 
Mass.  72;  People  v.  Johnson,  12  Johns.  (N. 
Y.)  292;  3  Greenl.  Ev.  §  SO;  2  Bish.  Cr.  L. 
145.  A  "privy  token,"  within  the  meaning 
of  this  statute,  was  held  to  denote  some 
real  visible  mark  or  thing,  as  a  key,  a  ring, 
etc.,  and  not  a  mere  affirmation  or  promise. 
And  though  writings,  generally  speaking, 
may  be  considered  as  tokens,  yet  to  be  with- 
in this  statute  they  must  be  such  as  were 
made  in  the  names  of  third  persons,  whereby 
some  additional  credit  and  confidence  might 
lined  to  the  party  using  them;  2  East. 
PI.  Cr.  826,  827. 

The  word  "cheat"  is  not  actionable,  un- 
less spoken  of  the  plaintiff  in  relation  to  his 
profession  or  business;  Odiorne  v.  Bacon,  0 
Cush.  (Mass.)  185;  2  Chit.  Rep.  057;  Rush 
v.  Cavenaugh,  2  Pa.  187;  20  Up.  Can.  Q.  B. 
382;  Ostrom  v.  Calkins.  5  Wend.  (X.  Y.'i 
263;  Stevenson  v.  Hayden,  2  Mass.  406;  Lucas 
v.  Flinn,  35  la.  9.  See  Deceit;  Fraud;  False 
Pretenses;  Token;  Illiterate. 

CHECK.  A  written  order  or  request,  ad- 
dressed to  a  bank  or  persons  carrying  on  the 
business  of  banking,  by  a  party  having  mon- 
ey in  their  hands,  desiring  them  to  pay,  on 
presentment,  to  a  person  therein  named  or 
bearer,  or  to  such  person  or  order,  a  named 
sum  of  money.  2  Dan.  Neg.  Inst.  528  ;  Blair 
v.  Wilson,  28  Gratt  (Va.)  17(>:  Deener  v. 
Brown,  1  MacArth.  (D.  C.)  350;  In  re 
Brown.  2  Sto.  502,  Bed.  Cas.  No.  1,985.  See 
Chapman  v.  White,  6  N.  Y.  412.  57  Am.  Dec. 
464.t 

A  check  Is  a  bill  of  exchange  drawn  on  a  bank, 
payable  on  demand.     Neg.  Instr.  Act  §  185. 

The  chief  differences  between  checks  and  bills  of 
exchange  are:  First,  a  check  is  not  due  until  pre- 
sented, and,  consequently,  it  can  be  negotiated  any 
time  before  presentment,  and  yet  not  subject  the 
holder  to  any  equities  existing  between  the  previous 


parties;    Cruger  v.  Armstrong.  3  Johns.  Cas.  < 
5,  9,  I  Am.  Dec.  126;    9  B.  &  C.  3S3;    Chit.  Bills  (Sth 
ed.}    646.     Secondly,   the  drawer   of   a    check    Is    not 
discharged  for  want  of  lmm>  ..tment  with 

due  diligence;     while   the   drawer  of  a   bill   of   ex- 
change is.    The  drawer  of  a  check  is  only  din  I 
by    such    neglect   when    he   e  .  tual   damage 

by  it,  and  then  only  pro 

-'.   Y.j    484  ;     Mohawk    Bank    . 
Wend.  (N.  T.)  306;    Little  v.  Bank,  2  Hill 
See  Case  v.  Morris,  31  Pa.   1 
of  the  drawer  of  a  check  rescinds   th<;  auth 
the  banker  to  pay  it;    while  the  death  of  the 
of  a  bill  of  exchange  does  not  alter  the   ■ 
the   parties;    3   M.   &    G.   571-573.     Fourt 
unlike  bills  of  exchange,   are  always  payable 
out  grace;    Woodruff  v.  Bank,  25  Wend.  (N.   V 
Merchants'   Bank  of  New   York  v.  Woodruff, 
(N.  Y.)  174.     See  a  discussion  of  this  subject,   I 
(Lacey's  ed.)  note  on  p.  571  of  the  index,  comment- 
ing  upon   opinion   of   Cowen.   J.,   in    Harker   v.   An- 
derson, 21  Wend.    (N.   Y.)   ... 

Checks  are  in  use  only  between  bank! 
hankers  and  their  customers,  and  are  design- 
ed to  t  banking  operations.    It 
their  very  essence  to  be  payable  on  demand. 
because  the  contract  between  the  banker  and 
mer   is   that  the  money   is    payable   on 
demand;  Darker  v.  Anderson,  21  Wend.  (N. 
Y.)  372;  In  re  Brown.  L'  Sto.   502,  Fed. 
\o.   1,985;    Merchants'   Nat   Bank   v.   Bank, 

in  Wall.  (U.  S.)  647,  B"  L.  Ed.  1008;  w i 

River  Bank  v.  Bank,  30  Neb.  711.  .V,  N.  W. 
239. 

As  between  the  holder  of  a  check  and  the 
indorser  it  is  required  that  due  diligence  be 
used  in  presenting  them  ;  Lewis.  Hubbard  & 
Co.  v.  Supply  Co.,  59  W.  Va.  75,  52  8.  E. 
1017,  4  L.  B.  A.  (X.  Si  132;  Start  v.  Tupper, 
SI  Yt.  19,  09  Atl.  1.11.  15  I..  R.  A.  (X.  Si  213, 
130  Am.  St.  Rep.  1015;  and  it  should  be 
protested  in  order  to  fix  the  liability  of 
indorsers;  3  Kent  (Lacey's  ed.)  88;  but  it  is 
not  necessary  to  use  diligence  in  presenting 
an  ordinary  check,  in  order  to  charge  the 
drawer,  unless  he  has  received  damage  by 
the  delay;  Buckncr  v.  Finley,  2  Bet.  (U.  S.) 
586,  7  L.  Ed.  528;  Little  v.  Bank,  2  Hill  (X. 
Y.)  425;  'Daniels  v.  Kyle,  1  Ga.  304;  L'  M.  & 
R.  401;  Syracuse,  B.  &  X.  Y.  R.  Co.  v.  Col- 
lins, 57  N.  Y.  011;  Burcell  v.  All 
Gratt  (Va.)  713;  Taylor  v.  Sip.  30  X.  .'.  I.. 
2S4;  Stewart  v.  Smith,  17  Ohio  St  82;  Mor- 
rison v.  McCartney,  ."><>  M  rk  v. 
Bacon,  45  Wis.  192,  ::o  Am.  Rep.  712;  Monte- 
lius  v.  Charles,  76  111.  303.  If  not  i>n 
for  payment  within  a  reasonable  time  alter 
issue,  the  drawer  will  1  from 
liability  thereon  to  the  extent  of  the  loss 
caused  by  the  delay;  Neg.  Instr.  Act  §  lv<">. 
Where  one  deposits  a  check  in  his  bat! 
it  is  collected  and  credited,  it  is  equivalent 
to  payment  to  him  in  the  ordinary  cour 
though  presented  to  another  bank  and  paid 
over  the  counter:  American  Nat  Bank  of 
Nashville,  Tenn.,  v.  Miller.  229  U.  S.  517,  33 
Sun.  Ct.  883,  57  L.  Ed.  . 

In  common  with  other  kinds  of  negotia- 
ble paper,  they  must  contain  an  order  to 
pay  money,  and  words  of  negotiability.  This 
enables  a  bona  fide  holder  fur  value  to  col- 


CHECK 


476 


CHECK 


lect  the  money  without  regard  to  the  pre- 
vious history  of  the  paper;  Swift  v.  Tyson, 
16  Pet.  (U.  S.)  1,  10  L.  Ed.  865 ;  Coddington  v. 
Bay,  20  Johns.  (N.  Y.)  637,  11  Am.  Dec.  342 ; 
Bank  of  Mobile  v.  Brown,  42  Ala.  10S. 

They  must  be  properly  signed  by  the  per- 
son or  firm  keeping  the  account  at  the 
banker's,  as  it  is  part  of  the  implied  con- 
tract of  the  banker  that  only  checks  so  sign- 
ed shall  be  paid.  The  words  "Agt.  Glass 
Buildings"  added  to  the  signature  of  a  check 
used  for  paying  an  individual  debt  of  the 
agent,  are  enough  to  put  the  person  receiving 
it  on  inquiry  as  to  his  authority  to  use  the 
fund  for  such  purpose;  Gerard  v.  McCor- 
mick,  130  N.  Y.  261,  29  N.  E.  115,  14  L.  R.  A. 
234,  and  note  reviewing  cases. 

Post-dated  checks  are  payable  on  the  day 
of  their  date,  although  negotiated  before- 
hand. See  Taylor  v.  Sip,  30  N.  J.  L.  284; 
Mohawk  Bank  v.  Broderick,  10  Wend.  (N. 
Y.)  304;  In  re  Brown,  2  Sto.  502,  Fed.  Cas. 
No.  1,9S5.  Where  all  the  parties  to  a  check 
reside  in  the  same  place,  the  holder  has 
until  the  day  following  its  date  or  receipt 
by  him  in  which  to  present  it. 

A  check,  of  itself,  does  not  operate  as  an 
assignment  of  any  part  of  the  funds  to  the 
credit  of  the  drawer  with  the  bank,  and  the 
bank  is  not  liable  to  the  holder  unless  and 
until  it  accepts  or  certifies  the  check ;  Neg. 
Instr.  Act  §  189;  Doherty  v.  Watson,  29  W. 
N.  C.  (Pa.)  32. 

Cebtified  Checks.  Checks  are  not  to  be 
accepted,  but  presented  at  once  for  pay- 
ment. There  is  a  practice,  however,  of 
marking  checks  "good,"  by  the  banker,  which 
fixes  his  responsibility  to  pay  that  particular 
check  when  presented,  and  amounts,  in  fact, 
to  an  acceptance;  Merchants'  Nat.  Bank  v. 
Bank,  10  Wall.  (U.  S.)  648,  19  L.  Ed.  1008. 
Such  a  marking  is  called  certifying;  and 
checks  so  marked  are  called  certified  checks. 
See  Meads  v.  Bank,  25  N.  Y.  143,  82  Am. 
Dec.  331;  Seventh  Nat  Bank  v.  Cook,  73 
Pa.  483,  13  Am.  Rep.  751.  The  bank  there- 
by becomes  the  principal  debtor;  First  Nat. 
Bank  of  Jersey  City  v.  Leach,  52  N.  Y.  350, 
11  Am.  Rep.  708;  Merchants'  Nat.  Bank  v. 
Bank,  10  Wall.  (U.  S.)  648,  19  L.  Ed.  1008; 
Morse,  Banks  &  Banking  414;  to  the  holder, 
not  the  drawer;  Girard  Bank  v.  Bank,  39 
Pa.  92,  80  Am.  Dec.  507;  Metropolitan  Nat. 
Bank  of  Chicago  v.  Jones,  137  111.  634,  27  N. 
E.  533,  12  L.  R.  A.  492,  31  Am.  St.  Rep.  403 ; 
Minot  v.  Russ,  156  Mass.  458,  31  N.  E.  489, 
16  L.  R.  A.  510,  32  Am.  St.  Rep.  472 ;  First 
Nat.  Bank  v.  Whitman,  94  U.  S.  343,  24  L. 
Ed.  229;  and  the  statute  of  limitation  does 
not  run  until  demand  made;  Girard  Bank  v. 
Bank,  39  Pa.  92,  80  Am.  Dec.  507;  and  the 
certifying  after  delivery  at  payee's  instance 
takes  the  amount  thereof  out  of  the  hands 
of  the  maker,  and  any  loss  by  the  insolvency 
of  the  bank  falls  on  the  payee;  Continental 
Nat.  Bank  of  Chicago  v.  Cornhouser  &  Co., 
37  111.  App.  475;  Minot  v.  Russ,  156  Mass. 


45S,  31  N.  E.  4S9,  16  L.  R.  A.  510,  32  Am.  St 
Rep.  472;  where  the  holder  of  a  check  pro- 
cures it  to  be  accepted  or  certified,  the  draw- 
er and  all  endorsers  are  discharged  from 
liability  thereon;  Neg.  Instr.  Act  §  188;  but 
where  certified  to  at  maker's  request  he  is 
not  discharged  from  liability ;  Born  v.  Bank, 
123  Ind.  78,  24  N.  E.  173,  7  L.  R.  A.  442,  18 
Am.  St  Rep.  312;  Bickford  v.  Bank,  42  111. 
238,  89  Am.  Dec.  436;  Mutual  Nat  Bank  v. 
Rotge,  28  La.  Ann.  933,  26  Am.  Rep.  126; 
Randolph  Nat.  Bank  v.  Hornblower,  160 
Mass.  401,  35  N.  E.  850. 

The  bank  cannot  refuse  to  pay  because 
notified  not  to  pay  by  the  drawer;  Freund  v. 
Bank,  12  Hun  (N.  Y.)  537;  even  where  it 
had  been  stolen  and  the  holder  acquired  it 
three  years  after  certification;  id.;  nor  gen- 
erally can  it  set  up  that  the  check  was  forg- 
ed, or  that  the  drawer  has  no  funds ;  Espy  v. 
Bank,  18  Wall.  (U.  S.)  621,  21  L.  Ed.  947.  In 
New  York,  it  is  held  that  certifying  a  check 
warrants  only  the  signature,  and  not  the 
terms  of  the  check ;  Security  Bank  of  New 
York  v.  Bank,  67  N.  Y.  458,  23  Am.  Rep.  129. 
See  First  Nat.  Bank  of  Chicago  v.  Bank,  40 
111.  App.  640 ;  contra,  Louisiana  Nat.  Bank  v. 
Bank,  28  La.  Ann.  189,  26  Am.  Rep.  92. 
The  certification  is  in  effect  merely  an  ac- 
ceptance, and  creates  no  trust  in  favor  of 
the  holder  of  the  check,  and  gives  no  lien  on 
any  particular  portion  of  the  assets  of  the 
bank;  People  v.  Bank,  77  Hun  159,  28  N.  Y. 
Supp.  407.  It  has,  however,  been  held  that 
a  certified  check  operates  as  an  assignment 
of  the  funds  to  meet  it,  and  makes  the  bank 
liable  to  the  holder;  Blake  v.  Savings  Bank 
Co.,  79  Ohio  189,  87  N.  E.  73,  20  L.  R.  A. 
(N.  S.)  290,  128  Am.  St  Rep.  684,  16  Ann. 
Cas.  210.     See  supra. 

Certification  is  equivalent  to  an  accept- 
ance ;  Neg.  Instr.  Act  §  187. 

A  statement  by  a  bank  officer  that  the 
drawer's  check  was  "good,"  or  "all  right," 
will  not  constitute  an  acceptance  of  the 
check;  Espy  v.  Bank,  18  Wall.  (U.  S.)  604, 
21  L.  Ed.  947 ;  but  a  parol  acceptance  has 
been  held  sufficient;  Pope  v.  Bank,  59  Barb. 
(N.  Y.)  226.  A  bank  is  not  bound  to  accept 
by  telegram  the  checks  or  drafts  of  its  de- 
positors, although  it  be  in  possession  of 
funds  to  pay ;  First  Nat.  Bank  of  Atchison 
v.  Bank,  74  Kan.  606,  87  Pac.  746,  8  L.  R. 
A.  (N.  S.)  1148,  118  Am.  St.  Rep.  340,  11  Ann. 
Cas.  281.  One  relying  on  a  telegram  as  an 
acceptance  should  see  to  it  that  the  language 
used  will,  at  least  fairly,  mean  that;  Myers 
v.  Bank,  27  111.  App.  254.  See  Bank  of 
Springfield  v.  Bank,  30  Mo.  App.  271,  hold- 
ing that  a  parol  statement  by  a  bank  that 
a  check  is  good  is  not  equivalent  to  a  cer- 
tification; nor  does  it  release  the  holder 
from  the  duty  of  proper  diligence  in  pre- 
sentment for  payment.  It  binds  the  bank 
to  nothing  more  than  that  the  statement 
was  true  at  the  time  when  it  was  made. 
But  where  the  inquiry  was,  "Will  you  pay 


CII1.<   K 


477 


CHECK 


J.  T.'s  check  on  you  for  $22,000?  Answer," 
and  the  answer  was,  "J.  T.  is  good.  Send 
on  your  paper,"  it  was  held  an  acceptance; 
North  Atchison  Bank  v.  Garretson,  .",1  Fed. 
168,  2  C.  C.  A.  145.  And,  generally,  where 
the  party  inquiring  takes  the  check  in  re- 
liance  upon  such  statement  and  for  a  valu- 
able consideration,  the  bank  will  be  liable; 
Leach  v.  Hill,  10G  la.  171,  70  N.  \V.  667; 
Farmers'  &  .Merchants'  Bank  v.  (Dunbier,  •"■_ 
Neb.  487,40  X.  \Y.  376;  Henrietta  Nat.  Ban! 
v.  Bank,  80  Tex.  648,  16  S.  W.  321,  26  Am. 
St.   Rep.  77::. 

A  hank  receiving  a  check  for  collection  is 
negligent  in  sending  it  to  the  drawee  bank, 
although  it  is  the  only  bank  in  the  place; 
Winchester  Mill  Co.  v.  Bank,  120  Tenn.  225, 
111  S.  W.  248,  18  L.  R.  A.  (N.  S.)  441 ;  Min- 
neapolis S.  &  D.  Co.  v.  Bank,  7G  Minn.  136, 
78  N.  W.  980,  44  L.  R.  A.  504,  77  Am.  St. 
Rep.  000;  Bank  of  Rocky  Mount  v.  Floyd, 
142  N.  C.  187,  55  S.  E.  95;  American  Ex- 
change Nat.  Bank  v.  Bank,  73  Mo.  App.  451; 
Wagner  v.  Crook,  167  Pa.  259,  31  Atl.  576, 
4<',  Am.  St.  Rep.  672.  But  that  such  negli- 
gence on  the  part  of  the  forwarding  bank 
will  not  make  it  liable  where  there  are  no 
funds  to  the  credit  of  the  drawer,  or  where 
the  drawee  bank  is  insolvent,  is  held  in 
some  cases;  Carson,  Pirie,  Scott  &  Co.  v. 
Fincher,  129  Mich.  687,  89  N.  W.  5,70,  95 
Am.  St.  Rep.  449;  First  Nat.  Bank  v.  Bank. 
12  Tex.  Civ.  App.  318,  34  S.  W.  458.  In 
Farmer's  Bank  &  Trust  Co.  v.  Newland.  97 
Ky.  465,  31  S.  W.  38,  it  was  said  that  when 
a  customer  deposits  checks  with  a  bank,  for 
collection  at  a  distant  point,  he  must  know 
the  bank  cannot  send  one  of  its  agents  to 
make  the  collection.  He  is  presumed  to 
know  the  method  employed  by  banks  in  mak- 
ing; such  collections.  He  has  made  the  bank 
bis  agent  for  that  purpose,  and  he  does  it 
with  the  implied  understanding  that  the 
bank  will  follow  the  customary  method. 
And  where  it  was  shown  to  be  a  universal 
custom  to  send  checks  directly  to  the  drawee 
bank  for  collection,  the  custom  was  held 
to  amount  to  a  good  presentment  for  pay- 
ment :  Kershaw  v.  Ladd,  34  Or.  375,  56  Pac. 
402,  44  L.  -R.  A.  236;  Wilson  v.  Bank,  1S7 
111.  222,  58  N.  E.  250.  52  L.  R.  A.  632.  Bui 
such  a  custom  was  held  unreasonable  and 
bad  ;  Farley  Nat.  Bank  v.  Pollock  &  Bern- 
heimer,  145  Ala.  321,  39  South.  612,  2  L.  R. 
A.  (X.  S.)  194,  117  Am.  St.  Rep.  44,  8  Ann. 
Cas.  370. 

The  rule  is  well  settled  that  a  drawee  ac- 
cepts or  pays  at  his  peril  a  forged  bill  in 
the  hands  of  a  holder  in  due  course;  3  Burr. 
1354  ;  for  the  reason  that  as  between  two  per- 
sons of  ecpial  equities,  one  of  whom  must 
suffer,  the  one  having  legal  title  should  pre- 
vail;  4  H.  L.  R.  220;  10  id.  514;  contra, 
First  Nat.  Bank  of  Lisbon  v.  Bank,  15  N.  D. 
200.  108  N.  W.  510.  10  L.  R.  A.  (N.  S.)  49, 
125  Am.  St.  Rep.  588. 

A  bank  which  receives  for  deposit  a  check 


on  which   the  payee's  indorsement  has 
Corg<  (1,  and  collects  its  amount  and  pa; 
over  to  the  depositor,  is  liable  to  the  pa 
Farmer  v.  Bank,  100  Tenn.  187,  17  S.  w 
Buckley   v.   Bank,  35   N.  J.   L.   400,    1'' 
Rep.  249. 

An  unrestricted  indorsement  of  a  draft  is 
a  representation   that   the   signature  of   the 
drawer  is  genuine,    upon   which   the   dr. 
may  rely,  so  that  in  case  it  proves  to 
forgery  he  may  recover  hack  the  mone] 
upon  the  draft  to  the  indorser;    Ford  8 
v.  Bank.  71  S.  C.  180,  54  S.  E.  201.   10  L.  R. 
A.  (N.  S.)  63,  114  Am.  St.  Rep.  9*0,  7  Ann. 
Cas.  7ii. 

The  depositor  owes  a  duty  to  the  bank  to 
use  due  diligence  in  examining  the  returned 
pass  books  and  vouchers.  If  he  or  his 
clerk  intrusted  with  the  examination  uses 
such  diligence,  whether  it  results  in  the  dis- 
covery of  the  forpery  or  not,  the  depositor 
can  recover  from  the  bank  the  sums  paid 
out;  Frank  v.  Bank.  84  X.  Y.  213.  .",S  Am. 
Rep.  501.  If,  however,  the  examining  clerk 
is  the  forger  and  conceals  the  result  of  the 
examination  from  the  depositor,  the  bank 
will  not  be  liable;  First  Xat.  Bank  of  Bir- 
mingham v.  Allen,  ion  Ala.  470, 14  South.  335, 
27  L.  R.  A.  420.  46  Am.  St.  Rep.  SO:  Leather 
Mfrs.  Bank  v.  Morgan,  117  U.  S.  96,  6  Sup. 
Ct.  657,  29  L.  Ed.  811;  Dana  v.  Bank.  132 
Mass.  156;  Myers  v.  Bank,  103  Pa.  1.  II 
Atl.  280,  74  Am.  St.  Rep.  672.  When  the  de- 
positor has  knowledge  that  his  forced  check 
has  been  paid  by  the  bank,  he  must  prompt- 
ly eive  notice  to  the  bank  in  order  to  hold  if 
liable  for  the  loss;  McXeely  Co.  v.  Bank. 
221  Pa.  588,  70  Atl.  588.  20  L.  R.  A.  CS.  S.) 
79:  Myers  v.  Bank.  lO?,  Pa.  1,  44  Atl.  280. 
74  Am.  St.  Rep.  672:  Critten  v.  Bank.  171 
N.  Y.  22S,  63  N.  E.  909.  57  L.  R.  A.  520;  U. 
S.  v.  Bank,  45  Fed.  163.  But  the  depositor's 
delay  is  not  a  defence  unless  the  bank  shows 
some  injury  caused  thereby:  Murphy  v. 
Bank,  191  Mass.  159,  77  X.  E.  693,  lit  Am. 
St.  Rep.  595;  Janin  v.  Bank.  92  Cal.  14.  27 
Pac.  1100,  14  L.  'R.  A.  320.  27  Am.  St.  Rep. 
82:  Third  Nat.  Bank  of  City  of  Xew  York 
v.  Bank,  76  Hun  475,  27  X.  Y.  Snpp.  1070; 
contra,  McNeely  Co.  v.  Bank,  221  Pa.  588, 
70  Atl.  801.  20  L.  R.  A.  (N.  S.t  70. 

To  entitle  one  who,  by  mistake,  has  paid 
out  mone^  on  a  forged  endorsement  of  a 
check  or  other  commercial  paper,  to  recover 
back  the  same,  notice  must  within  a  rea- 
sonable time  after  discovery,  be  given  to  the 
party  receiving  such  payment;  National  Ex- 
change Bank  v.  U.  S..  151  Fed.  402,  80  C.  C. 
A.  632;  3  Kent  85.  Holmes'  note:  hut  this 
does  not  apply  to  the  payment  to  a  bank  of 
a  pension  check  by  the  sub-treasury  upon 
a  forged  endorsement;  U.  S.  v.  Bank,  211 
U.  S.  302,  29  Sup.  Ct.  665.  53  L.  Ed.  1006, 
16  Ann.  Cas.  11  ^  t. 

Crossed  Checks.  The  practice  of  crossing 
checks  originated  at  the  clearing  house,  the 
clerks  of  the  different  bankers  who  did  busi- 


CHECK 


478 


CHECK 


ness  there  having  been  accustomed  to  write 
across  the  checks  the  names  of  their  em- 
ployers, so  as  to  enable  the  clearing  house 
clerks  to  make  up  their  accounts.  It  after- 
wards became  a  common  practice  to  cross 
checks  which  were  not  intended  to  go 
through  the  clearing  house,  with  the  name 
of  a  banker  or  with  "&  Co.,"  and  a  custom 
or  usage  grew  up  in  regard  to  this  also ;  7 
Exch.  389,  which  held  the  practice  of  cross- 
ing checks  to  be  a  safeguard  to  the  owner 
and  not  to  restrict  their  negotiability. 

A  check  is  said  to  be  specially  crossed 
when  the  name  of  a  bank  or  banking  firm  is 
written  across  the  face  of  the  check  (it  is 
then  payable  only  to  the  bank  indicated), 
and  it  is  said  to  be  generally  crossed  when 
the  words  "and  company"  or  any  abbrevia- 
tion thereof,  usually  "&  Co.,"  between  two 
parallel  transverse  lines  are  written  across 
the  check  (it  must  then  be  paid  only  to  some 
bank).  Another  form  of  the  general  cross- 
ing is  recognized  by  the  later  English  stat- 
utes which  consists  merely  of  two  parallel 
transverse  lines  across  the  face  of  the  checks 
without  any  words ;  Farmers'  Bank  v.  John- 
son, King  &  Co.,  134  Ga.  486,  6S  S.  E.  85,  30 
L.  R.  A.  (N.  S.)  697,  137  Am.  St.  Rep.  242. 

Crossed  checks  in  England  are  now  gov- 
erned by  the  Bill  of  Exchange  Act  of  1SS2, 
providing  that  where  a  banker  in  good  faith 
and  without  negligence  receives  payment 
from  a  customer  of  a  crossed  check,  and  the 
customer  has  no  title,  or  a  defective  title 
thereto,  the  banker  shall  not  incur  any  lia- 
bility to  the  true  owner  of  the  check  by  rea- 
son only  of  having  received  such  payment: 
[1903]  A.  C.  240,  affirming  [1902]  1  K.  B.  242 ; 
[1904]  2  K.  B.  465. 

The  effect  of  crossing  a  check  with  the 
name  of  a  banker  means  a  direction  to  the 
drawee,  by  the  owner,  to  pay  it  only  through 
the  banker;  disregard  of  this  direction 
would  be  evidence  of  negligence  if  payment 
were  made  to  one  who  was  not  the  lawful 
owner;  7  Esch.  389.  By  19  &  20  Vict.  c. 
25,  this  custom  was  made  statutory ;  1  Q. 
B.  Div.  31. 

In  the  United  States  the  system  of  "cross- 
ed checks,"  strictly  so  called,  is  unknown. 
But  of  late  the  germ  of  a  similar  custom  has 
begun  to  manifest  itself.  (^casionally 
checks  have  stamped  or  written  upon  them 
some  form  of  words  which  is  intended  to 
secure  their  payment  exclusively  through 
the  Clearing  House. 

Where  a  check  was  stamped  at  the  time 
it  was  drawn  with  the  words  "payable 
^hrough  (a  named  bank)  at  current  rate,"  it 
was  held  a  material  part  of  the  direction, 
and  the  drawee  bank  was  not  required  to 
pay  the  check  when  not  presented  through 
the  bank  thus  named ;  Farmers'  Bank  v. 
Johnson,  King  &  Co.,  134  Ga.  486,  68  S.  E. 
85,  30  L.  R.  A  (N.  S.)  697,  137  Am.  St  Rep. 
242. 

There    is    a    practice    of    writing    across 


checks  "memorandum,"  or  "mem."  They  are 
given  thus,  not  as  an  ordinary  check,  but 
as  a  memorandum  of  indebtedness;  and  be- 
tween the  original  parties  this  seems  to  be 
their  only  effect  In  the  hands  of  a  third 
party,  for  value,  they  have,  however,  all  the 
force  of  checks  without  such  word  of  restric- 
tion ;  Franklin  Bank  v.  Freeman,  16  Pick. 
(Mass.)  535;  Dykers  v.  Bank,  11  Paige  (N. 
Y.)  612;  Story,  Pr.  Notes  §  499.  See  In- 
dorsement. 

Giving  a  check  is  not  payment  unless 
the  check  is  paid ;  Cromwell  v.  Lovett,  1 
Hall  (N.  Y.)  64;  Franklin  v.  Vanderpool,  1 
Hall  (N.  Y.)  88;  L.  R.  10  Ex.  153;  Small  v. 
Mining  Co.,  99  Mass.  277;  Sweet  v.  Titus,  4 
Hun  (N.  Y.)  639;  Heartt  v.  Rhodes,  66  111. 
351;  Patton's  Adm'rs  v.  Ash,  7  S.  &  R.  (Pa.) 
116.  But  a  tender  was  held  good  wnen 
made  by  a  check  contained  in  a  letter,  re- 
questing a  receipt  in  return,  which  the  plain- 
tiff sent  back,  demanding  a  larger  sum,  with- 
out objecting  to  the  nature  of  the  tender; 
and  receiving  a  check  marked  "good"  is  pay- 
ment; 2  Dan.  Neg.  Inst.  559.     See  Payment. 

CHECK  BOOK.  A  book  containing  blanks 
for  checks. 

These  books  are  so  arranged  as  to  leave  a  margin, 
called  by  merchants  a  stump,  or  stubb,  when  the 
check  is  filled  out  and  torn  off.  Upon  these  stumps 
a  memorandum  is  made  of  the  date  of  the  check, 
the  payee,  and  the  amount ;  and  this  memorandum, 
in  connection  with  the  evidence  of  the  party  under 
oath,  is  evidence  of  the  facts  there  recorded. 

CHECK  ROOM.  The  owner  of  property 
lost  while  in  a  railroad  check  room  can  re- 
cover without  proof  of  negligence  on  the 
part  of  the  railroad  company ;  Terry  v.  Ry., 
81  S.  C.  279,  62  S.  E.  249,  18  L.  R.  A.  (N.  S.) 
295. 

CHECQUE.     See  Check. 

CHEMICAL  ANALYSIS.  The  court  takes 
judicial  notice  that  to  analyze  a  beverage 
requires  not  only  learning  and  skill  in  chem- 
istry, but  instruments  and  appliances  not  in 
common  use;  State  v.  Powell,  141  N.  C.  780, 
53  S.   E.  515,  6  L.   R.  A.    (N.  S.)    477. 

C  HEM  IN  (Fr.).  The  road  wherein  every 
man  goes;  the  king's  highway.  Called  in 
law  Latin  via  regla.  Termes  de  la  Ley; 
Cowell ;  Spelman,  Gloss. 

C  H  E  M I  ST.     See  Apothecary  ;   Druggist. 

CHEROKEE  NATION.  One  of  the  Civil- 
ized Indian  tribes.  See  Indian;  Indian 
Tribe. 

CHEVAGE.  A  sum  of  money  paid  by  vil- 
leins to  their  lords  in  acknowledgment  of 
their  villenage. 

It  was  paid  to  the  lord  In  token  of  his  being  chief 
or  head.  It  was  exacted  for  permission  to  marry, 
and  also  permission  to  remain  without  the  dominion 
of  the  lord.  When  paid  to  the  king,  it  was  called 
subjection.  Termes  de  la  Ley;  Co.  Litt.  140  a; 
Spelman,  Gloss. 

CHEVANTIA.  A  loan,  or  advance  of 
money  on  credit 


CHEVISANCE 


479 


CHILD 


CHEVISANCE  (Fr.  agreement).  A  bar- 
gain or  contract.  An  unlawful  bargain  or 
contract. 

CHICKASAW  NATION.  One  of  tbe  Civil- 
ized Indian  tribes.  See  Indian;  Indian 
Tridk. 

CHIEF.  One  who  is  put  above  the  rest. 
Principal.     The  best  of  a  number  of  things. 

Declaration  in  chief  is  a  declaration  for 
the  principal  cause  of  action.  1  Tidd,  Pr. 
419. 

Examination  in  chief  is  the  first  examina- 
tion of  a  witness  by  the  party  who  produces 
him.    1  Greenl.  Ev.  §  4  15. 

Tenant  in  chief  was  one  who  held  directly 
of  the  king.     1  Washb.  R.  P.  *19. 

CHIEF  BARON.  The  title  of  the  chief 
justice  of  the  English  court  of  exchequer.  3 
Bla.  Com.. 44. 

CHIEF  JUDGE.  In  some  states  the  pre- 
siding judge  is  thus  styled,  as  in  the  New 
York  Court  of  Appeals  and  the  Mary  haul 
Court  of  Appeals.  The  term  is  also  used  in 
1  Tyler  (Vt.)  with  "assistant"  judge  for  the 
puisne. 

CHIEF  JUSTICE.  The  presiding  or  prin- 
cipal judge  of  a  court. 

CHIEF    JUSTICIAR.     See    Justiciar. 

CHIEF  LORD.  The  immediate  lord  of  the 
fee.    Burton,  R.  P.  317. 

CHIEF  PLEDGE.  The  borsholder,  or 
chief  of  the  borough.     Spelman,  Gloss. 

CHILD.  The  son  or  daughter,  in  relation 
to  the  father  or  mother. 

Illegitimate  children  are  bastards.  Legiti- 
mate children  are  those  born  in  lawful  wed- 
lock. Natural  children  are  illegitimate  chil- 
dren. Posthumous  children  are  those  born 
after  the  death  of  the  father. 

Children  born  in  lawful  wedlock,  or  with- 
in a  competent  time  afterwards,  are  presum- 
ed to  be  the  issue  of  the  father,  and  follow 
his  condition;  but  this  presumption  may  be 
repelled  by  the  proof  of  such  facts  tending 
to  establish  non-intercourse  as  may  satisfy 
a  jury  to  the  contrary ;  Field,  Inf.  40 ;  3  C. 
&  P.  215,  427 ;  13  Ves.  Ch.  58 ;  Cross  v.  Cross, 
3  Paige,  Ch.  (N.  Y.)  139,  23  Am.  Dec.  778; 
Com.  v.  Shepherd,  6  Binn.  (Pa.)  2SG,  6  Am. 
Dec.  449;  Barden  v.  Barden,  14  N.  C.  548. 
See  Blackburn  v.  Crawford,  3  Wall.  (U.  S.) 
175,  18  L.  Ed.  1SG.  See  Access.  Those  bom 
out  of  lawful  wedlock  follow  the  condition 
of  the  mother. 

The  term  children  does  not,  ordinarily  and 
properly  speaking,  comprehend  grandchil- 
dren, or  issue  generally ;  yet  sometimes  that 
meaning  is  given  to  it  in  cases  of  necessity; 
6  Co.  1G;  14  Ves.  576;  Adams  v.  Law,  17 
How.  (U.  S.)  417,  15  L.  Ed.  149;  MeGuire 
v.  Westmoreland,  3G  Ala.  594 ;  Thomson  v. 
Ludington,  104  Mass.  193.     And  it  has  been 


held  to  signify  the  same  as  issue,  in 
where  the  testator,  by  using  the  terms  chil- 
dren and  issue  indiscriminately,  showed  his 
intention  to  use  the  form,  q  the  sense 

ie,  so  as  to  entitle  grandchildren,  etc., 
to    take    under    it;    1     Ves.    Sen.    Ch.    19G; 
Mowatt  v.  Carow.  7  Paige,  Ch.   (N.  Y. 
::•_■  Am.  Dec  641;  Ruff  v.  Rutherfunl,  1  Ball. 
Eq.    (S.   C.)    7;  Dickinson   v.    Lee,   4    Waits 
I  Pa.)   82,  28  Am.  Dec.  GS4 ;  3  • 
Dig.  213.    See  Walker  v.  William, 
549;  Appeal  of  Castner,  88  Pa.  478. 

It  is  a  rule  of  decision  in  England  that 
the  word  "children"  means  legitimate  chil- 
dren; 7  Ves.  458;  31  Ch.  D.  542;  L.  It.  7  II. 
:  and  such  is  the  general  rule  in  this 
country;  Gardner  v.  Ileyer,  2  Paige  (N.  Y.) 
11;  Heater  v.  Van  Auken,  14  X.  J.  Eq.  159; 
Thompson  v.  McDonald,  22  N.  C.  40.".;  Gates 
v.  Seibert,  157  Mo.  254,  57  S.  W.  10 
Am.  St.  Rep.  625;  In  re  Scholl's  Will,  100 
Wis.  650,  76  N.  w.  616;  Bealafeld  v.  Slaugh- 
enhaupt.  213  Pa.  565,  02  Atl.  1113;  although 
illegitimate  children  may  be  considered  as 
included  by  express  designation  or  neci 
implication;  Stewart  v.  Stewart,  31  N.  J. 
Eq.  398;  Collins  v.  IToxie,  9  Paige  (N.  Y.) 
81;  Bennett  v.  Toler,  15  Grat.  (Va.)  588,  78 
Am.  Dec.  60S ;  Morton's  Estate  v.  Morton,  62 
Neb.  420,  87  X.  W.  182;  and  when  the 
is  used  in  a  will,  there  must  be  evidence  to 
be  collected  from  the  will  itself,  or  extrinsi- 
cally,  to  show  affirmatively  that  the  testator 
intended  that  his  illegitimate  children  should 
take,  or  they  will  not  be  included ;  1  V.  & 
B.  422;  4  Kent  346,  414,  419;  <-,  II.  I. 
Palmer  v.  Horn,  84  N.  Y.  516.     See  Bastard. 

The  question  whether  the  term  "child" 
can  include  "twins"  is  said  not  to  have  been 
raised  in  any  English  ease,  in  70  Alb.  I..  J. 
2,  where  an  interesting  foreign  cas 
but  no  decision  is  stated.  Xo  American  case 
on  the  point  has  been  found. 

Posthumous  children  inherit,  in  all  cases, 
in  like  manner  as  if  they  had  been  born  in 
the  lifetime  of  the  intestate  and  had  sur- 
vived him;  2  Greenl.  Cruise,  I>i'-r.  135;  4 
Kent  412.     See  2  Washb.  R  P.  439,  I 

In  Pennsylvania;  act  of  1S"G,  p.  2."'t;  and 
in  some  other  states;  Rhode  Island,  Rev. 
Stat.  tit.  xxiv.  c.  154,  ?  1<>;  Bancroft  v.  Ives, 
3  Gray  (Mass.)  367;  the  will  of  their  fathers 
or  mothers  in  which  no  provision  is  made 
for  them  is  revoked,  as  far  as  regards  them, 
by  operation  of  law;  Coates  v.  Hughes,  3 
Binn.  (Pa.)  498;  Barnes  v.  Barker.  5  Wash. 
390,  ""1  Pac.  976.  In  Iowa  a  will  is  revoked 
by  the  birth  of  a  child  after  its  execution; 
Ware  v.  Wisner,  50  Fed.  310.  See,  as  to 
the  law  of  Virginia  on  this  subject,  Armi- 
stead  v.  Dangerfield,  3  Munf.  (Va.)  20,  5 
Am.  Dec.  501. 

An  elaborate  statute  known  as  the  Chil- 
dren's Act.  1908,  was  passed  December  21, 
1908,  in  England  to  consolidate  and  amend 
the  law  on  that  subject.  It  consists  of  134 
sections  covering  the  divisions  of  infant  life 


CHILD 


480 


CHILD 


protection,  prevention  of  cruelty  to  children, 
juvenile  smoking,  reformatory  and  industrial 
schools,  juvenile  offenders  and  miscellaneous 
and  general  provisions;  L.  R.  46  Stat.  453. 

See  Age;  In  Ventre  sa  Mere.  As  to  their 
competency  as  witnesses,  see  Witness.  And 
see  Parent  and  Child. 

The  courts  construe  these  laws  liberally 
as  within  the  police  powers  of  a  state  and 
they  are  generally  upheld,  the  rule  having 
been  laid  down  that  the  courts  will  not  in- 
terfere with  the  legislative  action  in  regard 
to  such  regulations ;  In  re  Weber,  149  Cal. 
392,  86  Pac.  809.  Statutes  have  been  held 
constitutional  forbidding  the  employment  of 
children  under  twelve  years  of  age  in  fac- 
tories; Starnes  v.  Mfg.  Co.,  147  N.  C.  556,  61 
S.  E.  525,  17  L.  R.  A.  (N.  S.)  602,  15  Ann. 
Cas.  470 ;  of  children  under  fourteen  years 
of  age  in  factories ;  In  re  Spencer,  149  Cal. 
396,  S6  Pac.  896,  117  Am.  St.  Rep.  137,  9 
Ann.  Cas.  1105 ;  Bryant  v.  Hardware  Co.,  76 
N.  J.  L.  45,  69  Atl.  23 ;  City  of  New  York  v. 
Chelsa  Jute  Mills,  43  Misc.  266,  88  N.  Y. 
Supp.  1085 ;  under  sixteen  years  of  age  in 
factories ;  People  v.  Taylor,  124  App.  Div. 
434,  108  N.  Y.  Supp.  796 ;  or  in  coal  mines ; 
Collett  v.  Scott,  30  Pa.  Super.  Ct.  430 ;  or  the 
employment  of  minors  under  sixteen  years 
of  age  over  ten  hours  a  day  or  over  six  days 
a  week ;  State  v.  Shorey,  48  Or.  396,  86  Pac. 
S81,  24  L.  R.  A.  (N.  S.)  1121;  or  girls  under 
fourteen  years  of  age  as  dancers  or  in  the- 
aters; People  v.  Ewer,  141  N.  Y.  129,  36  N. 
E.  4,  25  L.  R.  A.  794,  38  Am.  St.  Rep.  788. 
Other  cases  in  which  statutes  limit  the  hours 
which  women  and  children  may  be  employed 
are  Stehle  v.  Mach.  Co.,  220  Pa.  617,  69  Atl. 
1116,  14  Ann.  Cas.  122;  Com.  v.  Mfg.  Co., 
120  Mass.  383;  and  see  generally  as  to  the 
constitutionality  of  such  laws ;  65  L.  R.  A. 
33,  note,  and  12  L.  R.  A.   (N.  S.)  1130,  note. 

The  question  has  been  much  discussed 
whether  one  employing  a  child  under  the 
statutory  age  may  set  up  contributory  neg- 
ligence or  assumption  of  risk  to  defeat  lia- 
bility for  personal  injury.  In  New  York,  re- 
versing the  lower  court,  it  was  held  error  to 
exclude  testimony  on  the  question  of  con- 
tributory negligence,  and  to  hold  as  a  matter 
of  law  that  the  question  could  not  be  consid- 
ered ;  Lee  v.  Mfg.  Co.,  115  App.  Div.  589,  101 
N.  Y.  Supp.  78.  It  is  held  that  contributory 
negligence  could  not  be  set  up;  American 
Car  &  Foundry  Co.  v.  Armentraut,  214  111. 
509,  73  N:  E.  766;  Lenahan  v.  Min.  Co.,  218 
Pa.  311,  67  Atl.  642,  12  L.  R.  A.  (N.  S.)  461, 
120  Am.  St  Rep.  885;  Inland  Steel  Co.  v. 
Yedinak,  172  Ind.  423,  87  N.  E.  229,  139 
Am.  St.  Rep.  389;  Nairn  v.  Biscuit  Co.,  120 
Mo.  App.  144,  96  S.  W.  679.  In  other  cases, 
it  is  held  that  contributory  negligence  is  a 
question  for  the  jury,  with  due  considera- 
tion of  the  tender  age  of  the  child;  Queen 
v.  Iron  Co.,  95  Tenn.  458,  32  S.  W.  460,  30 
L.  R.  A.  82,  49  Am.  St  Rep.  935;  Morris  v. 


Stanfield,  81  111.  App.  264;  Sterling  v.  Car- 
bide Co.,  142  Mich.  284,  105  N.  W.  755.  In 
Marino  v.  Lehmaier,  173  N.  Y.  530,  66  N.  E. 
572,  61  L  R.  A.  811,  it  was  held  that  a  child 
of  a  forbidden  age  was  not,  as  a  matter  of 
law,  chargeable  with  contributory  negligence 
or  with  assumption  of  risk.  In  that  case  it 
was  also  decided  that  the  fact  that  a  pen- 
alty was  prescribed  by  the  act  did  not  pre- 
vent the  injured  child  from  having  an  action 
for  damages.  The  defense  of  contributory 
negligence  was  also  allowed  in  the  case  of  a 
child  employed  in  violation  of  the  statute 
where  he  was  shown  to  be  familiar  with  the 
construction  of  the  machine  by  which  he 
was  injured ;  Borck  v.  Bolt  &  Nut  Works, 
111  Mich.  129,  69  N.  W.  254 ;  and  in  another 
case  it  was  held  error  not  to  have  with- 
drawn the  case  from  the  jury,  although  the 
plaintiff  was  employed  in  violation  of  the 
statute ;  Beghold  v.  Auto  Body  Co.,  149  Mich. 
14,  112  N.  W.  691,  14  L.  R.  A.  (N.  S.)  609. 
In  North  Carolina,  before  the  enactment 
of  the  statute,  it  was  held  that  in  an  action 
by  a  child  of  nine  years  for  injury  the  evi- 
dence as  to  the  youth,  inexperience  and  ig- 
norance of  the  child,  the  failure  of  the  com- 
pany to  instruct  him  was  properly  left  to  the 
jury  on  the  question  of  the  negligence  of  the 
company  and  the  contributory  negligence  of 
the  infant  employ^ ;  Fitzgerald  v.  Furniture 
Co.,  131  N.  C.  637,  42  S.  E.  946,  where  the 
legislation  on  the  subject  up  to  that  time  is 
summarized.  After  the  passage  of  a  state 
statute  on  the  subject  the  employment  of 
the  child  in  violation  of  the  statute  was  held 
to  be  evidence  of  negligence  to  be  submit- 
ted to  the  jury,  as  also  the  question  of  con- 
tributory negligence;    Rolin  v.  Tobacco  Co., 

141  N.  C.  300,  53  S.  E.  891,  7  L.  R.  A.  (N.  S.) 
335,  8  Ann.  Cas.  638. 

The  violation  of  a  statute  forbidding  the 
employment  of  children  under  a  certain  age, 
or  at  certain  specified  work,  or  specifying 
conditions  to  be  complied  with,  is  negligence 
per  se,  in  an  action  by  the  child  for  injury ; 
American  Car  &  Foundry  Co.  v.  Armentraut 
214  111.  509 ;  Nickey  v.  Steuder,  164  Ind.  189, 
73  N.  E.  117 ;  Brower  v.  Locke,  31  Ind.  App. 
353,  67  N.  E.  1015;  Queen  v.  Iron  Co.,  95 
Tenn.  458,  32  S.  W.  460,  30  L.  R.  A.  82,  49 
Am.  St.  Rep.  935 ;  Cooke  v.  Mfg.  Co.,  33  Hun 
(N.  Y.)  351;  Woolf  v.  Nauman  Co.,  12S  la. 
261,  103  N.  W.  785 ;    Sterling  v.  Carbide  Co., 

142  Mich.  284,  105  N.  W.  755. 

But  in  Perry  v.  Tozer,  90  Minn.  431,  97  N. 
W.  137,  101  Am.  St.  Rep.  416,  it  was  held 
that  while  employment  in  violation  of  the 
statute  was  prima  facie  evidence  of  negli- 
gence, it  might  be  rebutted  by  proof  of  due 
care  or  of  contributory  negligence,  the  viola- 
tion of  a  statute  merely  shifting  the  burden 
of  proof.  In  Breckenridge  v.  Reagan,  22 
Ohio  C.  C.  71,  the  employment  in  violation  of 
a  statute  was  held  "some  evidence"  of  neg- 
ligence. 


CHILD  WIT 


481 


CHINA 


CHILD  WIT  (Sax.).  A  power  to  take  a  fine 
from  a  bondwoman  gotten  with  child  without 
the  lord's  consent 

By  custom  in  Essex  county,  England,  every  re- 
puted father  of  a  bastard  child  was  obliged  to  pay 
&  small  fiue  to  the  lord.  This  custom  is  known  as 
childwit.     Cowell. 

CHILTERN  HUNDREDS.  The  offices  of 
steward  or  bailiff  of  His  Majesty's  three 
Cbiltern  Hundreds  of  Stoke,  I  >esborough, 
and  Bonenham;  or  the  steward  of  the 
Manor  of  Northsted.  These  offices  have 
sometimes  been  refused,  but  they  are  or- 
dinarily given  to  any  member  of  the  House 
of  Commons  who  applies  for  them  as  a 
means  of  ceasing  to  be  a  member  of  the" 
House,  an  office  which  cannot  be  resigned; 
but  which  becomes  vacant  upon  the  a 
ance  of  any  other  office  by  a  member.  The 
office  is  retained  until  the  appointmenl  is 
revoked  to  make  way  for  the  appointment 
of  another  holder.  The  practice  began  about 
1750.  The  offices  of  steward  of  the  Manor  of 
East  Hendred  and  Hempholme  were  last  used 
for  this  purpose  in  1840  and  1SG5  respective- 
ly. Chiltern  Hundreds  is  an  appointment 
under  the  hand  and  seal  of  the  Chancellor  of 
the  Exchequer.  In  1S61,  and  since,  the  words 
"reposing  especial  trust  and  confidence,"  etc., 
were  omitted.     May,  Pari.  Pr.  G42. 

CHIMIN.     See  Chemin. 

CHIMINAGE.  A  toll  for  passing  on  a  way 
through  a  forest;  called  in  the  civil  law 
pedagium.  Cowell.  See  Co.  Litt  56  a;  Spel- 
man,  Gloss. ;  Termes  de  la  Ley;  Baldwin's 
Ed.  of  Britton,  63. 

CHIMIN  US.  The  way  by  which  the  king 
and  all  his  subjects  and  all  under  his  protec- 
tion have  a  right  to  pass,  though  the  prop- 
erty of  the  soil  of  each  side  wnere  the  way 
lieth  may  belong  to  a  private  man.     Cowell. 

CHIMNEY   MONEY.     See  Hearth  Monet; 

FUMAGE. 

CHINA.  By  Act  of  June  30,  1906,  a  "Unit- 
ed States  Court  for  China"  is  created  to 
which  is  given  the  jurisdiction  formerly  ex- 
ercised by  consuls  and  ministers,  except  as 
mentioned  in  the  title  Consular  Courts.  It 
is  held  by  one  judge  appointed  by  the  Presi- 
dent, with  the  consent  of  the  Senate  (salary 
$8000,  term  of  office  ten  years).  It  sits  at 
Shanghai,  and,  at  stated  periods,  at  Canton, 
Tientsin  and  Hankan.  An  appeal  to  it  lies 
from  all  consular  courts  of  China  (and  of 
Korea  so  long  as  the  right  of  extraterritoriali- 
ty shall  obtain  in  favor  of  the  United  States). 
It  has  supervisory  control  over  consuls  and 
vice-consuls  in  respect  of  the  estates  of  de- 
cedents in  China. 

Its  procedure  is  in  accordance,  so  far  as 
practicable,  with  that  prescribed  by  the  Re- 
vised Statutes  for  consular  courts  in  China, 
but  it  may  modify  and  supplement  such 
rules.  Its  jurisdiction  is  exercised  in  ac- 
cordance with  treaties  and  law  of  the  United 
Bouv.— 31 


States,  and  where  these  are  deficient  or  un 
suitable,  then  in  accordance  with  the  common 
law  and  the  law  established  by  United 
States  courts. 

An  appeal  lies  to  the  Circuit  Court  of  Ap- 
peals of  the  Ninth  Circuit  and  appeals  and 
writs  of  error  may  be  taken  thence  to  the 
Supreme  Court  in  the  same  class  of  cat 
those  in  which  they  are  permitted  in  cases 
coming  to  the  former  court  from  the  Dis- 
trict Court. 

See  Chinese. 

CHINESE.  Stringent  laws  for  the  entire 
exclusion  of  Chinese  from  the  United  SI 
have  been  passed  in  the  Pacific  states,  many 
of  which  have  been  decided  to  be  uncon- 
stitutional ;  as  is  an  ordinance  that  every 
male  person  imprisoned  in  the  county  jail 
should  have  his  hair  cut  short;  Ho  Ah 
Kow  v.  Nunan,  5  Sawy.  552,  Fed.  Cas.  No. 
6,546.  A  statute  forbidding  the  employment 
of  Chinamen  on  public  works,  etc.,  is  void,  as 
contravening  the  Burlingame  treaty  and  the 
14th  amendment;  Baker  v.  Portland,  5  Sawy. 
560,  Fed.  Cas.  No.  777;  In  re  Tiburcio  Par- 
rott,  1  Fed.  4S1.  So  is  an  act  forbidding 
Chinamen  to  fish  for  the  purpose  of  sale ;  In 
re  Ah  Chong,  2  Fed.  733.  But  a  state  law 
forbidding  the  exhumation  of  dead  bodies 
and  their  removal,  without  a  permit,  is  not 
invalid  when  applied  to  the  removal  of  bodies 
of  Chinamen  who  have  been  buried  in  Cali- 
fornia ;  it  is  a  merely  sanitary  regulation ; 
In  re  Wong  Yung  Quy,  2  Fed.  624. 

The  convention  between  the  United  States 
and  China  of  1S94  provided  that  Chinese  la- 
borers or  Chinese  of  any  other  class,  either 
permanently  or  temporarily  residing  in  the 
United  States  shall  have  for  the  protection 
of  their  persons  and  property  all  rights  that 
are  given  by  the  laws  of  the  United  States 
to  citizens  of  the  most  favored  nation,  ex- 
cepting the  right  to  become  naturalized  citi 
zens;   28  Stat.  L.  1211. 

Teachers,  officials,  students,  etc.,  have  the 
privilege  of  coming  to  and  residing  in  the 
United  States  on  presentation  of  a  certifi- 
cate from  their  government,  or  the  govern- 
ment where  they  last  resided  vis§d  by  the 
diplomatic  or  consular  representative  of  the 
United  States  in  the  country  or  port  whence 
they  departed.  Upon  application  for  admis- 
sion this  certificate  is  prima  facie  evidence  of 
the  facts  set  forth  therein.  One  cannot  be 
deported  unless  there  is  evidence  to  over- 
come the  legal  effect  of  the  certificate;  Liu 
Hop  Fong  v.  U.  S.,  209  U.  S.  453,  28  Sup.  Ct. 
570.  52  L.  Ed.  SSS. 

The  regulations  of  the  treasury  department 
of  Dec.  8,  1900,  governing  the  privilege  of 
transit  by  Chinese  laborers  across  the  ter- 
ritory of  the  United  States  which  require 
that  evidence  be  produced  which  shall  satis- 
fy the  collector  of  customs  that  a  bona  fide 
transit  only  was  intended  were  authorized 
by  the  provision  of  the  treaty  with  China  of 


CHINESE 


482 


CHINESE 


March  17,  1894  (28  Stat.  L.  1211)  that  Chinese 
laborers  shall  continue  to  enjoy  such  privi- 
lege of  transit,  subject  to  such  regulations  by 
the  government  of  the  United  States  as  may 
^e  necessary  to  prevent  abuse  of  the  priv- 
ilege; Fok  Yung  Yo  v.  U.  S.,  185  U.  S.  296, 
22  Sup.  Ct.  6S6,  46  L.  Ed.  917 ;  Lee  Lung  v. 
Patterson,  1S6  U.  S.  168,  22  Sup.  Ct.  795,  46 
L.  Ed.  1108. 

Chinese  persons  born  out  of  the  United 
States,  remaining  subjects  of  China,  are  en- 
titled to  the  protection  of  and  owe  allegiance 
to  the  United  States  so  long  as  they  are  per- 
mitted by  the  United  States  to  reside  here, 
and  are  subject  to  tbe  jurisdiction  thereof 
in  tbe  same  sense  as  all  other  aliens  residing 
In  the  United  States;  Yick  Wo  v.  Hopkins, 
LIS  U.  S.  356,  6  Sup.  Ct  1064,  30  L.  Ed.  220 ; 
Lau  Ou  Bew  v.  U.  S.,  144  U.  S.  47,  12  Sup. 
Ct.  517,  36  L.  Ed.  340 ;  Fong  Yue  Ting  v.  U. 
S.,  149  U.  S.  698,  13  Sup.  Ct.  1016,  37  L.  Ed. 
105 ;  Lem  Moon  Sing  v.  U.  S.,  158  U.  S.  538, 
L5  Sup.  Ct.  967,  39  L.  Ed.  1082 ;  Wong  Wing 
v.  U.  S.,  163  U.  S.  228,  16  Sup.  Ct.  977,  41 
L.  Ed.  140;  U.  S.  v.  Wong  Kim  Ark,  169  U. 
S.  649,  IS  Sup.  Ct.  456,  42  L.  Ed.  890. 

The  failure  of  a  Chinese  laborer  to  reg- 
ister, as  required  by  act  of  Congress,  May 
5,  1892,  is  held  not  to  be  excused  by  the  fact 
that  after  the  commencement  of  the  time 
allowed  for  registration,  but  before  its  ex- 
piration, he  was  convicted  and  imprisoned 
for  crime ;    U.  S.  v.  Ah  Poing,  69  Fed.  972. 

Act  of  Nov.  3,  1893  (exclusion  act),  applies 
to  Chinese  persons  who,  having  left  the  coun- 
try before  its  passage,  afterwards  sought  to 
return;  Lew  Jim  v.  U.  S.,  66  Fed.  953,  14 
C.  C.  A.  281.  A  Chinaman,  who  during  half 
his  time  is  engaged  in  cutting  and  sewing 
garments  for  sale  by  a  firm  of  which  he  is  a 
member,  is  not  a  merchant  within  the  exclu- 
sion act ;  Lai  Moy  v.  U.  S.,  66  Fed.  955,  14  C. 
C.  A.  283. 

The  Chinese  exclusion  acts  cannot  control 
the  meaning  or  impair  the  effect  of  the  con- 
stitutional amendment  but  must  be  construed 
and  executed  in  subordination  to  its  provi- 
sions; U.  S.  v.  Wong  Kim  Ark,  169  U.  S.  649, 
18  Sup.  Ct  456,  42  L.  Ed.  890 ;  and  the  right 
of  the  United  States  as  exercised  by  and  un- 
der these  acts,  to  exclude  or  expel  from  the 
country  persons  of  the  Chinese  race,  born  in 
China  and  continuing  to  be  subjects  thereof, 
though  having  acquired  a  commercial  domicil 
in  the  United  States,  has  been  upheld,  for 
reasons  applicable  to  all  aliens  alike,  and  in- 
applicable to  citizens  of  whatever  race  or 
color;  Chae  Chan  Ping  v.  U.  S.,  130  U.  S. 
5S1,  9  Sup.  Ct.  623,  32  L.  Ed.  1068;  Niski- 
mura  Efciu  v.  U.  S.,  142  U.  S.  651,  12  Sup.  Ct 
336,  35  L.  Ed.  1146 ;  Fong  Yue  Ting  v.  U.  S., 
149  U.  S.  698,  13  Sup.  Ct.  1016,  37  L.  Ed.  905 ; 
Lem  Moon  Sing  v.  U.  S.,  158  U.  S.  53S,  15 
Sup.  Ct.  967,  39  L.  Ed.  10S2 ;  Wong  Wing  v. 
U.  S.,  163  U.  S.  22S,  16  Sup.  Ct.  977,  41  L. 
Ed.   140.     A   Chinaman,   within  the  United 


States  who  resists  deportation  on  the  ground 
that  he  is  an  American  born  citizen  may  not 
be  deported  until  the  right  to  do  so  has  been 
ascertained ;  Moy  Suey  v.  U.  S.,  147  Fed.  697, 
7S  C.  C.  A.  S5.  It  was  considered  that  the 
rase  was  radically  different  from  that  of  a 
Chinese  citizen  who  left  the  United  States 
and  was  excluded  on  his  return,  in  which 
case  it  was  held  that  the  decision  of  the  im- 
migration officers  was  final  unless  reversed 
by  the  Secretary  of  Commerce  and  Labor, 
and  was  not'  reviewable  by  the  federal 
courts;  U.  S.  v.  Ju  Toy,  198  U.  S.  253,  25 
Sup.  Ct.  644,  49  L.  Ed.  1040. 

The  constitutionality  of  the  power  of  the 
Secretary,  in  cases  where  the  alienage  is  ad- 
mitted, is  settled;  Nishimura  Ekiu  v.  U.  S., 
142  U.  S.  651,  12  Sup.  Ct.  336,  35  L.  Ed.  1146 ; 
and  also  that  one  who  claims  citizenship 
cannot  resort  to  the  courts  before  prosecuting 
an  appeal  to  the  Secretary;  U.  S.  v.  Sing 
Tuck,  194  U.  S.  161,  24  Sup.  Ct.  621,  48  L. 
Ed.  917;  as  a  citizen  could  not  be  excluded 
from  the  country  except  as  a  punishment  for 
crime ;  In  re  Sing  Tuck,  126  Fed.  386 ;  Lee 
Sing  Far  v.  U.  S.,  94  Fed.  834,  35  C.  C.  A. 
327;  it  may  reasonably  be  contended  that 
the  determination  of  this  constitutional  right 
is  a  judicial  and  not  an  executive  function, 
and  therefore  it  is  a  question  whether  the  de- 
cision of  an  executive  official  upon  it  is  due 
process  of  law;  Japanese  Immigrant  Case, 
189  U.  S.  86,  23  Sup.  Ct.  611,  47  L.  Ed.  721. 
By  section  3  of  the  Geary  Act  the  burden 
of  proving  affirmatively  his  right  to  remain 
in  the  country  rests  upon  a  Chinaman  who 
has  been  arrested  for  being  here  illegally  and 
the  act  raising  this  presumption  of  guilt  is 
valid;  U.  S.  v.  Chun  Hoy,  111  Fed.  899,  50 
C.  C.  A.  57;  the  presumption,  it  is  said, 
should  be  viewed  under  the  rule  of  evidence 
as  to  facts  peculiarly  within  the  knowledge 
of  the  accused;  11  Y.  L.  J.  262;  and  its 
harshness  arose  mainly  from  the  penalty  im- 
posed by  section  4;  In  re  Sing  Lee,  54  Fed. 
334;  Fong  Yue  Ting  v.  U.  S.,  149  U.  S.  698, 
13  Sup.  Ct.  1016,  37  L.  Ed.  905,  which  section 
was  held  unconstitutional;  U.  S.  v.  Wong 
Dep  Ken,  57  Fed.  206. 
See  China, 

C  HIPP  IN  GAVEL.  A  toll  for  buying  and 
selling.  A  tax  imposed  on  goods  brought  for 
sale.    Whishaw;   Blount 

CHIRGEM0TE  (spelled,  also,  Chirchge- 
mote,  Circgemote,  Kirlcmote;  Sax.  circge- 
mote,  from  circ,  civic,  or  cyric,  a  church,  and 
gemot,  a  meeting  or  assembly). 

In  Saxon  Law.  An  ecclesiastical  court  or 
assembly  (Jorum  ecclesiasticum) ;  a  synod ;  a 
meeting  in  a  church  or  vestry.  Blount;  Spelm. 
Gloss.;  Hen.  I.  cc.  4,  8;  Co.  4th  Inst  321; 
Cunningh.  Law  Diet 

CHIROGRAPH  (Lat  chirographa) .  A 
deed  or  public  instrument  in  writing. 

Chirographs  were  anciently  attested  by  the  sub- 
scription and  crosses  of  witnesses.     Afterwards,  to 


CHIROGRAPH 


483 


CHOSE  IN  ACTION 


prevent  frauds  and  concealments,  deeds  of  mutual 
covenant  were  made  in  a  script  and  rescript,  or  in  a 
part  aud  counter-part :  and  In  the  middle,  between 
the  two  copies,  they  drew  the  capital  letters  of  the 
alphabet,  and  then  tallied,  or  cut  asunder  In  an  in- 
dented manner,  the  sheet  or  skin  of  parchment,  one 
of  which  parts  being  delivered  to  each  of  the  parties 
were  proved  authentic  by  matching  with  and  an- 
swering to  one  another.  Deeds  thus  made  were  de- 
nominated synrjrapha  by  the  canonists,  because 
that  word,  instead  of  the  letters  of  the  alphabet  or 
the  word  chirograph/urn,  was  used.  2  Bla.  Com.  296. 
This  method  of  preventing  counterfeiting,  or  of  de- 
tecting counterfeits,  is  now  used,  by  having  some 
ornament  or  some  word  engraved  or  printed  at  one 
end  of  certificates  of  stocks,  checks,  and  a  variety 
of  other  instruments,  which  are  bound  up  In  a  book, 
and,  after  they  are  executed,  are  cut  asunder 
through  6uch  ornament  or  word.  See  Syngraph; 
Indent. 

The  last  part  of  a  fine  of  land. 

It  is  called,  more  commonly,  the  foot  of  the  fine. 
It  is  an  instrument  of  writing,  beginning  with  these 
words:  "This  is  the  final  agreement,"  etc.  It  con- 
cludes the  whole  matter,  reciting  the  parties,  day, 
year,  and  place,  and  before  whom  the  fine  was  ac- 
knowledged and  levied.     Cruise,  Dig.  t.  35,  c.  2,  s.  52. 

In  Civil  and  Canon  Law.  An  instrument 
written  out  and  subscribed  by  the  hands  of 
the  king  or  prince.  An  instrument  written 
out  by  the  parties  and  signed  by  them. 

The  Normans,  destroying  these  chirogra/pha,  call- 
ed the  instruments  substituted  in  their  place  charta 
(charters),  and  declared  that  these  charta  should  be 
verified  by  the  seal  of  the  signer  with  the  attesta- 
tion of  three  or  four  witnesses.    Du  Cange  ;    Cowell. 

CHIVALRY,  COURT  OF.  See  Court  of 
Chivalry. 

CHIVALRY,  TENURE  BY.  Tenure  by 
knight-service.    Co.  Litt. 

CHOCTAW    NATION.     See  Indian  Tribe. 

CHOPS.  The  mouth  of  a  harbor.  Stats, 
of  Mass.  1882,  p.  12S8. 

CHOSE    (Fr.    thing).     Personal    property. 
Choses  in  possession.     Personal  things  of 
which  one  has  possession. 

Choses  in  action.     See  that  title. 

CHOSE  IN  ACTION.  A  right  to  receive 
or  recover  a  debt,  or  money,  or  damages  for 
breach  of  contract,  or  tor  a  tort  connected 
with  contract,  but  which  cannot  be  enforced 
without  action.     Comyns,   Dig.  Bicns. 

It  is  difficult  to  find  out  the  exact  mean- 
ing of  the  expression;  the  meaning  attribut- 
ed to  it  has  been  explained  from  time  to 
time;  30  Ch.  D.  282.  276,  277;  11  App.  Cas. 
439,  where  Lord  Blackburn  said  that  the 
phrase  has  been  used  "accurately  or  inac- 
curately,  as  including  all  personal  chattels 
that  are  not  in  possession."  It  now  includes 
all  personal  chattels  which  are  not  in  pos- 
session; 11  App.  Cas.  440.  It  includes  an 
annuity;  3  Mer.  S6,  unless  charged  on  land; 
14  Sim.  76;  consols;  1  Ves.  Jun.  198; 
shares;  11  A.  &  E.  205;  a  ticket  in  a  Derby 
sweepstakes;  8  Q.  B.  134;  all  debts  and  all 
claims  for  damages  for  breach  of  contract; 
Bushnell  v.  Kennedy,  9  Wall.  (U.  S.)  3S7, 
19  L.  Ed.  736;  open  accounts  or  unliquidated 
accounts;  Sere  v.  Pitot,  6  Cra.  (U.  S.)  332, 


3  L.  Ed.  240;  Wilkinson  v.  Wilkinson,  2 
Curt.   582,    Fed.  C     .   No.    17,677;   conti 

for  the  delivery  of  chattels  or  money;  Bush- 
nell v.  Kennedy,  9  Wall.  (TJ.  7,  19  L. 
Ed.  736;  certificates  of  deposit;  Basket  v. 
Hassell,  107  U.  S.  602,  2  Snp.  Ct  415,  27 
L.  Ed.  500;  a  check  on  a  bank;  L.  EL  <J  Eq. 
198;  a  personal  right  not  reduced  Into 

:i  but  recoverable  by  a  suit  at  law;  2 
Kent  351;  a  mere  right  of  action  as  to  a 
chattel,  not  in  actual  possession;  Zerby  v. 
Lynch,  3  Gratt.  (Va.i  494. 

It  is  one  of  the  qualities  of  a  chose  in  ac- 
tion that  at  common  law  it  is  not  as 
able;  10  Co.  47;  Gardner  v.  Adams,  12  Wend, 
(N.  Y.)  297;  1  Cra.  (U.  S.)  367.  In  Brac- 
t on's  day  it  went  to  the  heir,  and  he,  not 
the  executor,  sued  for  the  debts  due  to  B 
dead  man.  This  naturally  led  to  difficulties, 
and  the  courts  gradually  yielded  to  the  pres- 
sure of  necessity  and  without  a  statute,  so 
momentous  a  change  was  made  as  that, 
early  in  the  time  of  Edward  I.,  the  chancery 
had  framed  and  the  king's  court  bad  upheld 
writs  of  debt  for  and  against  executors ;  2 
Poll.  &  Maitl.  344.  It  was  Coke's  idea  that 
the  origin  of  the  rule  against  assignment  of 
choses  in  action  was  the  "wisdom  and  policy 
of  the  founders  of  our  law,"  in  discouraging 
maintenance  and  litigation,  but  Pollock 
thinks  that  there  is  no  doubt  that  it  was 
the  logical  consequence  of  the  primitive  view 
of  a  contract  as  creating  a  strictly  personal 
obligation  between  creditor  and  debtor.  See 
Wald,  Poll.  Torts  207,  and  note  G.  in  App. 
supporting  this  view.  In  equity,  from  an 
early  period,  the  courts  have  viewed  the  as- 
signment of  a  chose  in  action  for  a  valuable 
consideration  as  a  contract  by  the  assignor 
to  permit  the  assignee  to  use  his  name  for 
the  purpose  of  recovery,  and,  consequeutly, 
enforce  its  specific  performance,  unless  con- 
trary to  public  policy;  1  P.  Wms.  Ch.  381; 
Boppisa  v.  Eskridge,  37  N.  C.  54;  Dobyns 
v.  McGovern,  15  M<>.  662.  And  now,  at  com- 
mon law,  the  assignee  is  entitled  to  sue 
and  recover  in  the  name  of  the  assignor, 
and  the  debtor  will  not  be  allowed,  by  way 
of  defence  to  such  suit,  to  avail  himself  of 
any  payment  to  or  release  from  the  as- 
signor, if  made  or  obtained  after  notice  of 
the  assignment;  4  Term  340;  Bartletl  v. 
Pearson.  29  Me.  9;  Webb  v.  Steele,  13  N.  EL 
230;  Pitts  v.  Holmes,  10  Cush.  (Mass.)  93; 
Blin  v.  Pierce,  20  Yt.  25;  Caldwell  v. 
Meshew,  44  Ark.  564.  If,  after  notice  of  the 
assignment,  the  debtor  expressly  promise 
the  assignee  to  pay  him  the  debt,  the  as- 
signee will  then  be  entitled  to  sue  in  his 
own  name;  Crocker  v.  Whitney,  10  Mass. 
316;  Tiernan  v.  Jackson,  5  Pet  (TJ.  S.)  597, 
8  L.  Ed.  234;  Clarke  v.  Thompson,  2  li.  I. 
14G;  Barger  v.  Collins,  7  Ilarr.  &  J.  (Md.) 
213;  Ford  v.  A. lams,  ^  Barb.  (N.  Y.)  349; 
Geer  v.  Archer,  2  Barb.  (N.  Y.)  420;  Thomp- 
son  v.   Emery,   27   N.  H.   269;   but   without 


CHOSE  IN  ACTION 


484 


CHOSE  IN  ACTION 


such  express  promise  the  assignee,  except 
under  peculiar  circumstances,  must  proceed, 
even  in  equity  in  the  name  of  the  assignor ; 
Ontario  Bank  v.  Muinford,  2  Barb.  Ch.  (N. 
Y.)  59G;  Carter  v.  Ins.  Co.,  1  Johns.  Ch.  (N. 
Y.)  463;  Adair  v.  Winchester,  7  Gill  &  J. 
(Md.)  114;  Lenox  v.  Roberts,  2  Wheat.  (U. 
S.)  373,  4  L.  Ed.  264;  or  by  agreement  he 
can  sue  in  his  own  name  and  pay  over  the 
proceeds  of  the  sale  to  the  assignor,  in 
which  case  he  becomes  a  trustee;  Dean  v. 
Chandler,  44  Mo.  App.  338. 

The  English  Judicature  Act  of  1873  pro- 
vides to  a  certain  extent  for  assignments  of 
choses  in  action ;  but  not  every  equitable  as- 
signment is  within  the  statute  [1902]  2  K.  B. 
196.  A  partial  assignment  of  choses  in  ac- 
tion is  good  in  equity,  although  the  legal 
title  remains  with  the  assignor ;  Texas  W. 
R.  Co.  v.  Gentry,  69  Tex.  625,  8  S.  W.  98. 

But  courts  of  equity  will  not,  any  more 
than  courts  of  law,  give  effect  to  such  as- 
signments when  they  contravene  any  rule 
of  law  or  of  public  policy.  .  Thus,  they  will 
not  give  effect  to  the  assignment  of  the 
half  pay  or  full  pay  of  an  officer  in  the 
army;  1  Ball  &  B.  389;  or  of  a  right  of 
entry  or  action  for  land  held  adversely ; 
Hoppiss  v.  Eskridge,  37  N.  C.  54;  or  of  a 
part  of  a  right  in  controversy,  in  considera- 
tion of  money  or  services  to  enforce  it; 
Wilhite  v.  Roberts,  4  Dana  (Ky.)  173.  Nei- 
ther do  the  courts,  either  of  law  or  of  eq- 
uity, give  effect  to  the  assignment  of  mere 
personal  actions  which  die  with  the  per- 
son; Jabriskie  v.  Smith,  13  N.  Y.  322,  64 
Am.  Dec.  551;  Oliver  v.  Walsh,  6  Cal.  456; 
Smith  v.  Sherman,  4  Cush.  (Mass.)  408.  A 
cause  of  action  for  deceit  is  assignable; 
Dean  v.  Chandler,  44  Mo.  App.  338;  but  not 
for  slander;  Miller  v.  Newell,  20  S.  C.  123, 
47  Am.  Rep.  833.  But  a  claim  of  damages 
to  property,  though  arising  ex  delicto,  which 
on  the  death  of  the  party  would  survive 
to  his  executors  or  administrators  as  assets, 
may  be  assigned ;  Bisp.  Eq.  166 ;  McKee  v. 
Judd,  12  N.  Y.  622,  64  Am.  Dec.  515;  Web- 
ber v.  Quaw,  46  Wis.  US,  49  N.  W.  830. 
The  transfer  of  a  bill  of  lading  will  pass 
the  claim  for  the  conversion  of  the  goods 
represented  by  it ;  Dickson  v.  Elevator  Co., 
44  Mo.  App.  498;  Haas  v.  R.  Co.,  81  Ga. 
792,  7  S.  E.  629.  See  Smith  v.  Thompson, 
94  Mich.  381,  54  N.  W.  168.  The  right  of 
vendor  to  bring  a  second  suit  in  trespass  to 
try  title  is  assignable  and  passes  to  the 
vendee ;  Williams  v.  Bennett,  1  Tex.  Civ. 
App.  49S,  20  S.  W.  856. 

The  assignee  of  a  chose  in  action,  unless 
it  be  a  negotiable  promissory  note  or  bill 
of  exchange,  without  notice,  in  general  takes 
it  subject  to  all  the  equities  which  subsist 
against  the  assignor ;  1  P.  Wms.  496 ;  4 
Price  161;  Brashear  v.  West,  7  Pet.  (U.  S.) 
608,  8  L.  Ed.  801 ;  Cornish  v.  Bryan,  10  N.  J. 
Eq.  146;  Bishop  v.  Holcomb,  10  Conn.  444; 
Bush  v.  Lathrop,  22  N.  Y.  535;  Martin  v. 


Richardson,  68  N.  C.  255;  Boardman  v. 
Hayne,  29  la.  339;  Lane  v.  Smith,  103  Pa. 
415;  Williams  v.  Neely,  134  Fed.  1,  67  C. 
C.  A.  171,  69  L.  R.  A.  232;  Kleeman  v.  Fris- 
bie,  63  111.  4S2.  But  it  is  not  subject  to  the 
equities  of  third  persons  of  which  he  had 
no  notice ;  Himrod  v.  Bolton,  44  111.  App. 
516.  And  a  payment  made  by  the  debtor, 
even  after  the  assignment  of  the  debt,  if 
before  notice  thereof,  will  be  effectual ; 
Woodbridge  v.  Perkins,  3  Day  (Conn.)  364; 
Bishop  v.  Holcomb,  10  Conn.  444 ;  U.  S.  v. 
Vaughan,  3  Binn.  (Pa.)  394,  5  Am.  Dec.  375; 
Warren  v.  Copelin,  4  Mete.  (Mass.)  594. 

In  Pennsylvania  by  statute  a  bond  is  as- 
signable and  suit  can  be  brought  on  it  by 
the  assignee  if  there  are  two  witnesses  to 
the  assignment  and  in  Delaware  under  a 
similar  statute  but  one  witness  is  now  re- 
quired. 

To  constitute  an  assignment,  no  writing  or 
particular  form  of  words  is  necessary,  if  the 
consideration  be  proved  and  the  meaning  of 
the  parties  apparent;  Dunn  v.  Snell,  15 
Mass.  485;  Dawson  v.  Coles,  16  Johns.  (N. 
Y.)  51;  Kessel  v.  Albetis,  56  Barb.  (N.  Y.) 
362;  Shannon  v.  Mayor,  etc.,  of  City  of 
Hoboken,  37  N.  J.  Eq.  123;  Garnsey  v.  Gard- 
ner, 49  Me.  167;  Patten  v.  Wilson,  34  Pa. 
299;  13  Sim.  Ch.  469;  and  therefore  the 
mere  delivery  of  the  written  evidence  of 
debt;  Cannaday  v.  Shepard,  55  N.  C.  224; 
Boeka  v.  Nuella,  28  Mo.  180;  Jones  v.  Wit- 
ter, 13  Mass.  304;  Titcomb  v.  Thomas,  5 
Greenl.  (Me.)  2S2 ;  Prescott  v.  Hull,  17  Johns. 
(N.  Y.)  284 ;  the  delivery  being  essential  to 
the  assignment;  Lewis  v.  Mason's  Adm'r,  84 
Va.  731,  10  S.  E.  529;  Shannon  v.  Mayor, 
etc.,  of  City  of  Hoboken,  37  N.  J.  Eq.  123; 
Noyes  v.  Brown,  33  Vt.  431 ;  or  the  giving  of 
a  power  of  attorney  to  collect  a  debt,  may 
operate  as  an  equitable  transfer  thereof,  if 
such  be  the  intention  of  the  parties ;  7  Ves. 
Ch.  28;  Bergen  v.  Bennett,  1  Caines  Cas.  (N. 
Y.)  18,  2  Am.  Dec.  281 ;  People  v.  Tioga  Com- 
mon Pleas,  19  Wend.  (N.  Y.)  73.  See  As- 
signment. 

Bills  of  exchange  and  promissory  notes,  in 
exception  to  the  general  rule,  are  by  the 
law  merchant  transferable,  and  the  legal  as 
well  as  equitable  right  passes  to  the  trans- 
feree. See  Bill  of  Exchange;  Negotiable 
Instruments.  In  some  states,  by  statutory 
provisions,  bonds,  mortgages,  and  other  doc- 
uments may  be  assigned,  and  the  assignee 
receives  the  whole  title,  both  legal  and  eq- 
uitable; 2  Bouvier,  Inst  192.  In  New  York, 
the  code  enables  an  assignee  to  maintain  an 
action  in  his  own  name  in  those  cases  in 
which  the  right  was  assignable  in  law  or 
in  equity  before  the  code  was  adopted;  Pur- 
ple v.  R.  Co.,  4  Duer  (N.  Y.)  74. 

A  distinction  must  be  made  between  the 
security  or  the  evidence  of  the  debt,  and  the 
thing  due.  A  deed,  a  bill  of  exchange  or 
a  promissory  note  may  be  in  the  possession 
of   the   owner,   but   the  money   or   damages 


CHOSE  IN  ACTION 


485 


CHRISTIAN  SCIENCE 


due  on  them  are  no  less  choses  in  action. 
This  distinction  is  to  be  kept  in  view.  The 
chose  in  action  is  the  money,  damages  or 
thing  owing.  The  bond  or  note  is  but  the 
evidence  of  it.  There  can  in  the  nature  of 
things  be  no  present  possession  of  a  thiug 
whi<  h  lies  merely  in  action;  1  Bouv.  Inst.  p. 
191;  First  Nat.  Bank  v.  Holland,  99  Va. 
495,  3!)  S.  E.  126,  55  L.  R.  A.  155,  86  Am. 
St.  Rep.  898. 

In  the  absence  of  fraudulent  transfer  or 
such  other  fraud  as  would  positively  impede 
an  action  at  law  and  proceeding  in  garnish- 
ment, equity  will  not  subject  the  choses  in 
action  of  tbe  debtor  to  the  payment  of  his 
debts;  Hall  v.  Imp.  Co.,  143  Ala.  464,  39 
South.  2S5,  2  L.  R.  A.  (N.  S.)  130,  5  Ann. 
Cas.  363. 

See  Assignment;  Situs;  Gift;  20  L.  J. 
R.  113. 

CHOSEN  FREEHOLDERS.  See  Board  of 
Freeholders. 

CHRISTIAN.  One  who  believes  in  or  as- 
sents to  the  truth  of  the  doctrines  of  Chris- 
tianity, as  taught  by  Jesus  Christ  in  the 
New  Testament.  It  does  not  include  Mo- 
hammedans, Jews,  Pagans,  or  infidels ;  Hale 
v.  Everett,  53  N.  H.  9,  16  Am.  Rep.  82. 

CHRISTIAN  NAME.  The  baptismal  name 
as  distinct  from  the  surname.  A  Christian 
name  may  consist  of  a  single  letter.  Whar- 
ton.    See  Name. 

CHRISTIAN  SCIENCE.  In  Pennsylvania 
a  charter  was  refused  to  an  organization 
of  .Christian  Scientists  on  the  ground  that 
to  recognize  their  doctrines  was  against  the 
public  policy  of  the  state ;  In  re  First  Church 
of  Christ,  Scientist,  205  Ta.  543,  55  Atl.  536, 
63  L.  R.  A.  411,  97  Am.  St  Rep.  753 ;  but  in 
Illinois  they  have  been  incorporated;  Peo- 
ple v.  Gordon,.  194  111.  560,  02  N.  E.  858,  88 
Am.  St.  Rep.  165. 

The  consent  of  a  patient  to  be  treated  by 
a  Christian  Scientist  healer  will  preclude 
holding  him  liable  in  damages  for  failure  to 
effect  a  cure,  although  that  method  of  treat- 
ment is  illegal  by  state  law;  Spead  v.  Tom- 
linson,  73  N.  H.  46,  59  Atl.  376,  68  L.  R.  A. 
432.  In  Maine,  a  Christian  Scientist  was 
held  entitled  to  recover  for  his  services.  The 
defense  set  up  that  it  was  delusion  and 
charlatanry  being  considered  immaterial,  as 
defendant  had  chosen  the  treatment  and 
promised  to  pay  for  it;  Wheeler  v.  Sawyer 
(Me.)  15  Atl.  67. 

While  the  practice  of  Christian  Science  is 
not  a  practice  of  medicine  as  usually  and 
generally  understood,  yet  being  a  treatment 
for  mental  and  bodily  ailments,  such  prac- 
tice is  a  violation  of  the  state  laws  for  the 
protection  of  the  public  health ;  State  v. 
Buswell,  40  Neb.  158,  58  N.  W.  728,  24  L. 
R.  A.  68;  contra,  State  v.  Mylod,  20  R.  I. 
632,  40  Atl.  753,  41  L.  R.  A.  428.  It  has  been 
held  that  to  give  treatments  for   a  fee  is 


practicing  medicine ;  State  v.  Marble,  72 
Ohio  St.  21,  73  N.  E.  1003,  70  L.  R.  A.  835. 
100  Am.  St.  Rep.  570,  2  Ann.  Cas.  898,  where 
an  act  regulating  such  practice  is  consid- 
ered a  valid  exercise  of  the  police  power 
and  not  void  as  discriminating  against 
Cbristian  Science  in  not.  maki  I  pro- 

vision for  those  who  wish  to  practice  it. 

Under  a  municipal  ordinance  Imposing  a 
penalty  on  physicians  for  not  reporting  con- 
tagious diseases,  the  evidence  must  show 
that  a  Christian  Scientist  who  attended  the 
person  knew  that  he  was  afflicted  with  such 
disease ;  Kansas  City  v.  Baird,  92  Mo.  App. 
204. 

A  belief  in  Christian  Science,  ascribing  to 
it  certain  miraculous  powers  of  curing  dis- 
ease, is  not  sufficient  evidence  of  insane  de- 
lusions to  avoid  a  will;  In  re  Brush.  35 
Misc.  689,  72  N.  Y.  Supp.  421. 

A  conviction  of  a  father  for  wilfully  omit- 
ting, without  lawful  excuse,  to  furnish  med- 
ical attendance  for  his  minor  son,  was  up- 
held; Owens  v.  State,  6  Okl.  Cr.  110.  116 
Pac.  345,  36  L.  R.  A.  (N.  S.)  633,  Ann. 
1913B,  1218. 

See  an  article  In  10  Va.  L.  Reg.  285. 

CHRISTIANITY.  The  religion  established 
by  Jesus  Christ. 

Christianity  has  been  judicially  declared 
to  be  a  part  of  the  common  law  of  Penn- 
sylvania; Updegraph  v.  Com.,  11  S.  &  R. 
(Pa.)  394;  Guardians  of  the  Poor  v.  G 
5  Binn.  (Pa.)  555;  (cited  in  U.  S.  v.  Laws, 
163  U.  S.  263,  16  Sup.  Ct.  99S,  41  L,  Ed. 
151);  see  Zeisweiss  v.  James,  63  Pa.  4»;:».  :: 
Am.  Rep.  558;  of  New  York,  People  v.  Bug- 
gies, 8  Johns.  291,  5  Am.  Dec.  335;  of  Con- 
necticut, 2  Swift,  System  321;  of  Delaware, 
State  v.  Chandler,  2  Harr.  553;  of  Massa- 
chusetts, 7  Dane,  Abr.  c.  219,  a.  2.  19.  See 
Com.  v.  Kneeland,  20  Pick.  (Mass.)  206.  To 
write  or  speak  contemptuously  and  mali- 
ciously against  it  is  an  Indictable  offence; 
Odg.  Lib.  &  SI.  450;  Cooper,  Libel  59.  114. 
See  5  Jur.  529;  People  v.  Ruggles.  8  Johns. 
(N.  Y.)  290,  5  Am.  Dec.  335;  Com.  v.  Knee- 
land,  20  Pick.  (Mass.)  206.  "This  is  a  re- 
ligious people,  not  Christianity  with  an  es- 
tablished church  and  tithes  and  spiritual 
courts;  but  Christianity  with  liberty  of  con- 
science to  all  men."  U.  S.  v.  Laws,  163  U. 
S.  263,  16  Sup.  Ct.  998,  41  L.  Ed.  151. 

Archbishop  Whately,  in  his  preface  to  the  Ele- 
ments of  Rhetoric,  says,  "It  has  been  declared,  by 
the  highest  legal  authorities,  that  'Christianity  is 
part  of  the  law  of  the  land,"  and,  consequently,  any 
one  who  impugns  it  is  liable  to  prosecution.  What 
is  the  precise  meaning  of  the  above  legal  maxim  I 
do  not  profess  to  determine,  having  never  met  with 
any  one  who  could  explain  it  to  me;  but  evidently 
the    mere    circumstance    that   we    have    religion    by 

bed  does  not  of  itself  imply  the  HI 
of  arguing  against  that  religion."  It  seems  difficult, 
says  an  accomplished  writer  (Townsend.  St.  Tr.  vol. 
11.  p.  3S9),  to  render  more  intelligible  a  maxim 
which  has  perplexed  so  learned  a  critic.  Christian- 
ity was  pronounced  to  be  part  of  the  common  law, 
in  contradistinction  to  the  ecclesiastical  law,  for 
the  purpose  of  proving  that  the  temporal  courts,  as 


CHRISTIANITY 


486 


CHURCH 


well  as  the  courts  spiritual,  had  jurisdiction  over  of- 
fences against  it.  Blasphemies  against  God  and  reli- 
gion are  properly  cognizable  by  the  law  of  the  land, 
as  they  disturb  the  foundations  on  which  the  peace 
and  good  order  of  society  rest,  root  up  the  principle 
of  positive  laws  and  penal  restraints,  and  remove 
the  chief  sanction  for  truth,  without  which  no  ques- 
tion of  property  could  be  decided  and  no  criminal 
brought  to  justice.  Christianity  is  part  of  the  com- 
mon law,  as  its  root  and  branch,  its  majesty  and 
pillar — as  much  a  component  part  of  that  law  as  the 
government  and  maintenance  of  social  order.  The 
inference  of  the  learned  archbishop  seems  scarcely 
accurate,  that  all  who  impugn  this  part  of  the  law 
must  be  prosecuted.  It  does  not  follow,  because 
Christianity  is  part  of  the  law  of  England,  that 
every  one  who  impugns  it  is  liable  to  prosecution. 
The  manner  of  and  motives  for  the  assault  are  the 
true  tests  and  criteria.  Scoffing,  flippant,  railing 
comments,-  not  serious  arguments,  are  considered 
offences  at  common  law,  and  justly  punished,  be- 
cause they  shock  the  pious  no  less  than  deprave  the 
ignorant  and  young.  The  meaning  of  Chief  Justice 
Hale  cannot  be  expressed  more  plainly  than  in  his 
own  words.  An  information  was  exhibited  against 
one  Taylor,  for  uttering  blasphemous  expressions 
too  horrible  to  repeat.  Hale,  C.  J.,  observed  that 
"such  kind  of  wicked,  blasphemous  words  were  not 
only  an  offence  to  God  and  religion,  but  a  crime 
against  the  laws,  state,  and  government,  and  there- 
fore punishable  in  the  court  of  King's  Bench.  For, 
to  say  religion  is  a  cheat,  is  to  subvert  all  those 
obligations  whereby  civil  society  Is  preserved  ;  that 
Christianity  is  part  of  the  laws  of  England,  and  to 
reproach  the  Christian  religion  is  to  speak  in  sub- 
version of  the  law."  Ventr.  293.  To  remove  all 
possibility  of  further  doubt,  the  English  commis- 
sioners on  criminal  law,  in  their  sixth  report,  p.  83 
(1841),  have  thus  clearly  explained  their  sense  of  the 
celebrated  passage:  "The  meaning  of  the  expres- 
sion used  by  Lord  Hale,  that  'Christianity  was  par- 
cel of  the  laws  of  England,'  though  often  cited  in 
subsequent  cases,  has,  we  think,  been  much  misun- 
derstood. It  appears  to  us  that  the  expression  can 
only  mean  either  that,  as  a  great  part  of  the  secu- 
rities of  our  legal  system  consist  of  judicial  and 
official  oaths  sworn  upon  the  Gospels,  Christianity 
is  closely  interwoven  with  our  municipal  law,  or 
that  the  laws  of  England,  like  all  municipal  laws  of 
a  Christian  country,  must,  upon  principles  of  gen- 
eral jurisprudence,  be  subservient  to  the  positive 
rules  of  Christianity.  In  this  sense,  Christianity 
may  justly  be  said  to  be  incorporated  with  the  law 
of  England,  so  as  to  form  parcel  of  it ;  and  it  was 
probably  in  this  sense  that  Lord  Hale  intended  the 
expression  should  be  understood.  At  all  events,  in 
whatever  sense  the  expression  is  to  be  understood, 
it  does  not  appear  to  us  to  supply  any  reason  in 
favor  of  the  rule  that  arguments  may  not  be  used 
against  It ;  for  it  is  not  criminal  to  speak  or  write 
either  against  the  common  law  of  England,  gen- 
erally, or  against  particular  portions  of  it,  provided 
it  be  not  done  in  such  a  manner  as  to  endanger  the 
public  peace  by  exciting  forcible  resistance ;  so 
that  the  statement  that  Christianity  is  parcel  of 
the  law  of  England,  which  has  been  so  often  urged 
in  justification  of  laws  against  blasphemy,  however 
true  it  may  be  as-  a  general  proposition,  certainly 
furnishes  no  additional  argument  for  the  propriety 
of  such  laws."  If  blasphemy  mean  a  railing  accu- 
sation, then  it  is,  and  ought  to  be,  forbidden ; 
Heard,  Lib.  &  SI.  §  338.  See  Vidal  v.  Girard,  2 
How.  (U.  S.)  127,  197,  11  L.  Ed.  205;  Updegraph  v. 
Com.,  11  S.  &  R.  (Pa.)  394;  People  v.  Ruggles,  8 
Johns.  (N.  Y.)  290,  5  Am.  Dec.  335  ;  Shover  v.  State, 
10  Ark.  259  ;  State  v.  Chandler,  2  Harr.  (Del.)  553, 
569;  21  Am.  L.  Reg.  201,  333,  537.  See  Cooley,  Const. 
Lim. 

Christianity  is  a  part  of  the  common  law ;  the 
existence  of  God  has  always  been  assumed  in  Eng- 
lish  Law.     See   J.   B.   Thayer,   Leg.   Essays  325. 

CHURCH.  A  society  of  persons  who  pro- 
fess the  Christian  religion.  Den  v.  Bolton, 
12  N.  J.  L.  206.  214;    Stebbins  v.  Jennings, 


10  Pick.  (Mass.)  193 ;  German  Reformed 
Church  v.  Com.,  3  Pa.  282;  St.  Johns 
Church  v.  Hanns,  31  Pa.  9. 

The  place  where  such  persons  regularly 
assemble  for  worship.  Blair  v.  Odin,  3  Tex. 
2S8. 

The  term  church  includes  the  chancel,  aisles,  and 
body  of  the  church.  Hamm.  N.  P.  204 ;  Blair  v. 
Odin,  3  Tex.  288.  By  the  English  law,  the  terms 
church  or  chapel,  and  church-yard,  are  expressly 
recognized  as  in  themselves  correct  and  technical 
descriptions  of  the  building  and  place,  even  in 
criminal  proceedings;  8  B.  &  C.  25;  1  Salk.  256;  11 
Co.  25  b;    2  Esp.   5,  28. 

Burglary  may  be  committed  in  a  church, 
at  common  law;   3  Cox,  Cr.  Cas.  581. 

The  church  of  England  is  not  a  corpora- 
tion aggregate;  but  the  church  in  any  par- 
ticular place  is  so  considered,  for  the  pur- 
poses at  least  of  receiving  a  gift  of  lands ; 
Town  of  Pawlet  v.  Clark,  9  Cra.  (U.  S.)  292, 
3  L.  Ed.  735;  Lockwood  v.  Weed,  2  Conn. 
287 ;  Stone  v.  Griffin,  3  Vt.  400 ;  Wilson  v. 
Presbyterian  Church,  2  'Rich.  Eq.  (S.  C.)  192. 
See  Rice  v.  Osgood,  9  Mass.  44 ;,  Sawyer  v. 
Baldwin,  11  Pick.  (Mass.)  495;  Proprietors 
of  Town  of  Shapleigh  v.  Pilsbury,  1  Greenl. 
(Me.)  288 ;  Blair  v.  Odin,  3  Tex.  288 ;  Afri- 
can Methodist  Bethel  Church  v.  Carmack, 
2  Md.  Ch.  Dec.  143. 

As  to  the  right  of  succession  to  glebe 
lands,  see  Terrett  v.  Taylor,  9  Cra.  (U.  S.) 
43,  3  L.  Ed.  650;  Town  of  Pawlett  v.  Clark, 
9  Cra.  (U.  S.)  292,  3  L.  Ed.  735;  Mason  v. 
Muncaster,  9  Wheat.  (TJ.  S.)  468,  6  L.  Ed. 
131 ;  or  other  church  property,  see  Wheaton 
v.  Gates,  18  N.  Y.  395.  As  to  the  power  of 
a  church  to  make  by-laws,  etc.,  under  local 
statutes,  see  Com.  v.  Cain,  5  S.  &  R.  (Pa.) 
510 ;  German  Reformed  Church  v.  Com.,  3 
Pa.  282;  Vestry  of  St.  Luke's  Church  v. 
Mathews,  4  Des.  (S.  C.)  578,  6  Am.  Dec.  619 : 
Perrin  v.  Granger,  30  Vt.  595;  Farnsworth 
v.  Storrs,  5  Cush.  (Mass.)  412.  Acquiescence 
in  and  use  of  a  constitution  for  over  50  years 
makes  it  valid  and  binding  on  the  society; 
Schlichter  v.  Keiter,  156  Pa.  119,  27  Atl.  45, 
22  L.  R.  A.  161 ;  Bear  v.  Heasley,  98  Mich. 
279,  57  N.  W.  270,  24  L.  R.  A.  615. 

See  Religious  Society. 

A  municipal  corporation  may  stipulate,  un- 
der its  charter  authority  to  contract  for  a 
water  supply,  that  churches  be  furnished 
with  water  free  of  charge ;  Independent 
School  Dist.  of  Le  Mars  v.  Water  &  Light  Co., 
131  la.  14,  107  N.  W.  944,  10  L.  R.  A.  (N.  S.) 
859.  In  a  statute  limiting  the  height  of 
buildings  the  exception  of  churches  does  not 
deprive  owners  of  private  property  of  the 
equal  protection  of  the  laws;  Cochran  v. 
Preston,  108  Md.  220,  70  Atl.  113,  23  L.  R. 
A.  (N.  S.)  1163,  129  Am.  St.  Rep.  432,  15  Ann. 
Cas.  1048. 

CHURCH  OF  ENGLAND.  The  act  of  26 
Henry  VIII.  recognized  the  king  as  being 
the  only  supreme  head  on  earth  of  the 
Church   of   England,    having   the   power   to 


CHURCH  OF  ENGLAND 


487 


CHURCH  OF  ENGLAND 


correct  all  errors,  heresies,  abuses,  offences, 
contempts  and  enormities. 

In  1531,  Henry  was  acknowledged  by  Con- 
vocation as  "Protector  and  Supreme  Head 
of  the  English  Church  and  Clergy,"  "so  far 
as  the  law  of  Christ  allowed." 

The  Church  of  England  is  governed  in- 
ternally by  means  of  its  Convocation  of  bish- 
ops and  clergy;  there  is  one  for  each  prov- 
ince, Canterbury  and  York.  Each  consists 
of  two  houses ;  the  upper,  composed  of 
archbishops  and  bishops;  the  lower,  com- 
posed of  deans  of  every  cathedral,  the  arch- 
deacons with  proctors  elected  from  every 
chapter  and  two  or  more  elected  by  the 
clergy  of  the  diocese  of  the  province  of  Cant- 
erbury, and  by  every  archdeacon  in  the 
province  of  York. 

The  name  Convocation  is  specifically  giv- 
en to  the  assembly  of  the  spirituality  of  the 
realm  of  England.  It  is  summoned  by  the 
metropolitan  archbishops  of  Canterbury  and 
of  York,  respectively,  within  their  ecclesias- 
tical provinces,  pursuant  to  a  royal  writ, 
whenever  the  Parliament  of  the  realm  is 
summoned,  and  is  continued  or  discharged, 
as  the  case  may  be,  whenever  the  Parlia- 
ment is  prorogued  or  dissolved. 

The  present  constitution  of  the  Convoca- 
tion of  the  Prelates  and  Clergy  of  the  prov- 
ince of  Canterbury  was  recognized  as  early 
as  1283  as  its  normal  constitution,  and  in 
extorting  recognition  from  the  crown,  which 
the  clergy  accomplished  by  refusing  to 
attend  unless  summoned  in  lawful  man- 
ner (debito  modo)  through  their  metropol- 
itan, the  clergy  of  the  province  of  Canter- 
bury taught  the  laity  the  possibility  of  main- 
taining the  freedom  of  the  nation  against 
the  encroachments  of  the  royal  power. 

The  form  of  the  royal  writ,  which  it  is 
customary  to  issue  in  the  present  day  to 
the  metropolitan  of  each  province,  is  identi- 
cal in  its  purport  with  the  writ  issued  by 
the  crown  in  1283  to  the  metropolitan  of  the 
province  of  Canterbury.  The  existing  con- 
stitution of  the  Convocation  of  the  province 
of  Canterbury — and  the  same  is  true  of  the 
province  of  York — in  respect  of  its  compris- 
ing representatives  of  the  chapters  and  of 
the  beneficed  clergy,  in  addition  to  the  bish- 
ops and  other  dignitaries  of  the  church, 
would  thus  appear  to  be  of  even  more  an- 
cient date  than  the  existing  constitution  of 
the  Parliament  of  the  realm. 

It  was  decreed  during  the  time  of  Ilonry 
VI.  that  the  prelates  and  other  clergy,  with 
their  servants  and  attendants,  when  called 
to  the  Convocation  pursuant  to  the  king's 
writ,  should  enjoy  the  same  liberties  and  de- 
fence as  when  summoned  to  the  king's  Par- 
liament. 

In  1717,  in  pursuance  of  a  royal  writ.  Con- 
vocation was  prorogued  and  no  license  from 
the  crown  was  granted  to  Convocation  to 
proceed  to  business  until  1861. 

In   1872   Convocation   was   empowered   by 


the  crown  to  frame  resolutions  on  the  sub- 
ject   of    public    worship,     which    resolutions 
were  afterwards  incorporated  in  the  A 
Uniformity  Amendment  Act 

To  Convocation  in  later  years  has  been 
added  the  House  of  Laymen,  for  both  prov- 
inces, which,  to  a  certain  extent,  secured 
the  co-operation  of  the  lay  element.  It  is 
elected  for  every  new  Parliament,  by  Dio- 
cesan Conferences,  who  are  in  turn  elected 
by  the  laity.  In  189G,  joint  sessions  of  both 
Convocations,  in  conjunction  with  the  li 
of  Laymen,  for  consultative  purposes,  were 
held.  This  body  is  now  termed  the  Repre- 
sentative Church  Council  and  has  adopted  a 
constitution ;  all  formal  business  is  how- 
ever, transacted  in  the  separate  Convoca- 
tions. 

The  crown  has  the  right  to  nominate  to 
vacant  sees.  In  cases  of  sees  of  old  founda- 
tion, this  is  done  by  means  of  a  cong6  d'elire ; 
in  that  of  all  others,  by  letters  patent.  The 
usual  selection  of  bishops  is  in  the  hands 
of  the  Prime  Minister,  but  it  is  usual  now 
to  select  those  approved  by   public  opinion. 

Bishops  hold  their  temporalities  as  bar- 
ons, and  are  spiritual  members  of  Parlia- 
ment. Only  twenty-six  have  the  right  to 
seats  in  the  House  of  Lords,  of  which  five, 
the  two  archbishops  and  the  bishops  of 
London,  Durham  and  Winchester,  always  sit, 
the  others  taking  their  seats  in  order  of 
seniority  of  confirmation.     See  Encycl.  Brit 

The  Judicial  Committee  of  the  Privy 
Council  is  the  highest  court  of  appeal  in 
ecclesiastical  cases. 

The  Church  of  Ireland  was  by  the  Act  of 
Union,  1800.  united  with  the  Church  oi 
land.  By  the  disestablishment  act  of  L869, 
this  union  was  severed,  and  on  January  1. 
1871,  the  Church  of  Ireland  became  Inde- 
pendent. The  supreme  governing  board  of 
the  Church  of  Ireland  is  the  church  Synod, 
which  meets  annually.  There  are  also  twen- 
ty-three dioceses  and  Synods  which  are  con- 
stituted by  similar  elective  bodies  called  di- 
ocesan councils.  The  bishop  of  the  diocese  is 
chosen  by  the  clerical  and  lay  members  of  the 
diocesan  Synod.  The  Primate  is  chosen  by 
the  House  of  Bishops  from  among  their  own 
number. 

CHURCH  RATE.  A  tribute  by  which  the 
expenses  of  the  church  are  to  be  defrayed. 
They  are  to  be  laid  by  the  parishioners,  in 
England,  and  may  be  recovered  before  two 
Justices,  or  in  the  ecclesiastical  court.  Whar- 
ton, Diet 

CHURCH-WARDEN.  An  officer  whose 
duty  it  is  to  take  care  of  or  guard  the 
church. 

They  are  taken  to  be  a  kind  of  corporation  in 
favor  of  the  church  for  some  purposes:  they  may 
have,  in  that  name,  property  in  goods  and  chattels, 
and  bring  actions  for  them  for  the  use  and  benefit 
of  the  church,  but  may  not  waste  the  church  prop- 
erty, and  are  liable  to  be  called  to  account;  3  Steph. 
Com.  90;    1  Bla.  Com.  39-1;    CowelL 


CHURCH-WARDEN 


488 


CIRCUIT  COURTS 


These  officers  are  created  in  some  ecclesi- 
astical corporations  by  the  charter,  and  their 
rights  and  duties  are  definitely  explained. 
In  England,  it  is  said,  their  principal  duties 
are  to  take  care  of  the  church  or  building, 
the  utensils  and  furniture,  the  church-yard, 
certain  matters  of  good  order  concerning  the 
church  and  church-yard,  the  endowments  of 
the  church;  Bacon,  Abr.  By  the  common 
law,  the  capacity  of  church-wardens  to  hold 
property  for  the  church  is  limited  to  personal 
property;  Terrett  v.  Taylor,  9  Cra.  (U.  S.)  43, 
3  L.  Ed.  650. 

CHURL.     See  Ceorl. 
CIGARETTES.     See  Commerce. 
CINQUE   PORTS.    The  five  ports  of  Eng- 
land which  lie  towards  France. 

These  ports,  on  afibount  of  their  importance  as 
defences  to  the  kingdom,  early  had  certain  privi- 
leges granted  them,  and  in  recompense  were  bound 
to  furnish  a  certain  number  of  ships  and  men  to 
serve  on  the  king's  summons  once  in  each  year. 
"The  service  that  the  barons  of  the  Cinque  Ports 
acknowledge  to  owe ;  upon  the  king's  summons,  if 
it  shall  happen,  to  attend  with  their  ships  fifteen 
days  at  their  own  cost  and  charges,  and  so  long 
as  the  king  pleases,  at  his  own  charge;"  Cowell, 
Quinque  Portus.  The  Cinque  Ports,  under  the  ordi- 
nance of  Henry  III.  in  1229,  were  Hastings,  Dover 
Sandwich,  Hythe  and  Romney,  to  which  were  added 
Winchelsea  and  Rye;  1  Social  England  412.  The 
two  latter  are  sometimes  reckoned  ports  of  Sand- 
wich ;  and  the  other  of  the  Cinque  Ports  have  ports 
appended  to  them  in  like  manner.  The  Cinque  Ports 
had  a  Lord  Warden,  who  had  a  peculiar  jurisdic- 
tion, sending  out  writs  in  his  own  name.  This  office 
is  still  maintained. 

The  first  admiralty  jurisdiction  in  somewhat  mod- 
ern form  appears  to  have  been  committed  to  the 
Lord  Warden  and  Bailiffs  of  the  Cinque  Ports.  The 
constitution  of  these  ports  into  a  confederacy  for  the 
supply  and  maintenance  of  the  navy  was  due  to 
Edward  the  Confessor.  Edward  I.  confirmed  their 
charter.  The  last  charter  was  in  1G68.  Their  courts 
had  civil,  criminal,  equity,  and  admiralty  jurisdic- 
tion and  were  not  subject  to  the  courts  at  West- 
minster. See  the  charters  in  Jeakes'  Charters  of 
the  Cinque  Ports.  See  Inderwick's  King's  Peace; 
Les  Cinque  Ports,  by  Benoist-Lucy ;  Court  of  the 
Cinque  Ports. 

The  representatives  in  parliament  and  the  inhab- 
itants of  the  Cinque  Ports  were  termed  barons ; 
Brande ;  Cowell ;  Termes  de  la  Ley.  And  see 
Round,  Feudal   England  563. 


CIRCUIT  COURTS.  Courts  whose  juris- 
diction extends  over  several  counties  or  dis- 
tricts, and  of  which  terms  are  held  in  the 
various  counties  or  districts  to  which  their 
jurisdiction  extends. 

The  term  was  applied  distinctively  to  a  class  of 
the  federal  courts  of  the  United  States,  of  which 
terms  are  held  in  two  or  more  places  successively 
in  the  various  circuits  into  which  the  whole  country 
is  divided  for  this  purpose.  The  name  was  changed 
to  district  court  by  the  Judiciary  Act  of  March  3, 
1911,  in  effect  January  1,  1912.  See  United  States 
Courts.  In  some  states  it  applies  to  courts  of 
general  jurisdiction  of  which  terms  are  held  in  the 
various  counties  or  districts  of  the  state.  Such 
courts  sit  in  some  instances  as  courts  of  nisi  prius, 
in  others,  either  at  nisi  prius  or  in  banc.  They 
may  have  an  equity  as  well  as  a  common-law 
jurisdiction,  and  may  be  both  civil  and  criminal 
courts.  The  systems  of  the  various  states  are  widely 
different  in  these  respects ;  and  reference  must  be 
had  to  the  articles  on  the  different  states  for  an  ex- 
planation of  the  system  adopted  in  each.  The  term 
is  unknown  in  the  classification  of  English  courts, 
and  conveys  a  different  idea  in  the  various  states  in 
which  it  is  adopted  as  the  designation  of  a  court  or 
class  of  courts,  although  the  constitution  of  such 
courts,  in  many  instances,  is  quite  analogous  to  that 
of  the  English  courts  of  assize  and  nisi  prius. 


CIPHER.    See  Telegraph. 

CIRCUIT.  A  division  of  the  country  in 
England  appointed  for  a  particular  judge  to 
visit  for  the  trial  of  causes.  See  3  Bla. 
Com.  58. 

Courts  are  held  in  each  of  these  circuits,  at  stated 
periods,  by  judges  assigned  for  that  purpose;  3 
Steph.  Com.  321.  The  United  States  is  divided  into 
nine  circuits  ;    1  Kent  301. 

The  term  is  often  applied,  perhaps,  to  the  periodi- 
cal journeys  of  the  judges  through  their  various 
circuits.  The  judges,  or,  in  England,  commissioners 
of  assize  nisi  prius,  are  said  to  make  their  circuit; 
3  Bla.  Com.  57.  The  custom  is  of  ancient  origin. 
In  A.  D.  1170,  justices  in  eyre  were  appointed,  with 
delegated  powers  from  the  Curia  Regis,  being  held 
members  of  that  court,  and  directed  to  make  the 
circuit  of  the  kingdom  once  in  seven  years.  See 
Inderwick's  King's   Peace  GO. 

Under  Courts  of  Assize  and  Nisi  Prius 
will  be  found  a  list  of  English  circuits. 


CIRCUIT     COURT     OF     APPEALS.      See 

United  States  Courts. 

CIRCUIT  JUSTICE.  A  justice  of  the  Su- 
preme Court  of  the  United  States  allotted  to 
any  circuit.     Act  of  March  3,  1911. 

CIRCUITY  OF  ACTION.  Indirectly  ob- 
taining, by  means  of  a  subsequent  action,  a 
result  which  may  be  reached  in  an  action 
already  pending. 

This  is  particularly  obnoxious  to  the  law, 
as  tending  to  multiply  suits ;  Fellows  v.  Fel- 
lows, 4  Cow.  (N.  Y.)  682,  15  Am.  Dec.  412. 

CIRCUMSPECTE  AGATIS.  A  royal  writ 
(12S5)  dealing  with  lay  and  ecclesiastical  ju- 
risdiction which  perhaps  technically  acquir- 
ed the  force  of  a  statute.  Its  authenticity 
was  doubtful.  2  Holdsw.  Hist.  E.  L.  246. 
See  Articuli  Cleri. 

C I R  C  U  M  ST  A  N  C  ES.  The  particulars  which 
accompany  an  act.  The  surroundings  at  the 
commission  of  an  act. 

The  facts  proved  are  either  possible  or  impossible, 
ordinary  and  probable  or  extraordinary  and  im- 
probable, recent  or  ancient;  they  may  have  hap- 
pened near  us,  or  afar  off;  they  are  public  or  pri- 
vate, permanent  or  transitory,  clear  and  simple  or 
complicated ;  they  are  always  accompanied  by  cir- 
cumstances which  more  or  less  influence  the  mind 
in  forming  a  judgment.  And  in  some  instances 
these  circumstances  assume  the  character  of  irre- 
sistible evidence:  where,  for  example,  a  woman 
was  found  dead  in  a  room,  with  every  mark  of 
having  met  with  a  violent  death,  the  presence  of 
another  person  at  the  scene  of  action  was  made 
manifest  by  the  bloody  mark  of  a  left  hand  visible 
on  her  left  arm  ;  14  How.  St.  Tr.  1324  ;  Greenl.  Ev. 
13  o.  These  points  ought  to  be  carefully  examined, 
in  order  to  form  a  correct  opinion.  The  first  ques- 
tion ought  to  be,  is  the  fact  possible?  If  so,  are 
there  any  circumstances  which  render  it  impossible? 
If  the  facts  are  impossible,  the  witness  ought  not  to 
be  credited.  If,  for  example,  a  man  should  swear 
that  he  saw  the  deceased  shoot  himself  with  his  own 
pistol,  and,  upon  an  examination  of  the  ball  which 
killed  him,  it  should  be  found  too  "large  to  enter 
into  the  pistol,  the  witness  ought  not  to  be  credited; 


CIRCUMSTANCES 


489 


CITATION   OF  AUTHORITIES 


1  Stark.   Ev.   505  ;    or  if  one  should  swear  that  an- 
other had  been  guilty  of  an  impossible  crime. 

CIRCUMSTANTIAL  EVIDENCE.  See  Ev- 
idence. 

CIRCUMSTANTIBUS.    See  Tales. 

CITACION.  In  Spanish  Law.  The  order 
of  a  legal  tribunal  directing  an  individual 
against  whom  a  suit  has  been  instituted  to 
appear  and  defend  it  within  a  given  time. 
It  is  synonymous  with  the  term  emplaza- 
miento  in  the  old  Spanish  law,  and  the  in  jus 
vocatio  of  the  Roman  law. 

CITATIO  AD  REASSUMENDAM  CAUSAM. 
In  Civil  Law.  The  name  of  a  citation,  which 
issued  when  a  party  died  pending  a  suit, 
against  the  heir  of  the  defendant,  or,  when 
the  plaintiff  died,  for  the  heir  of  the  plain- 
tiff. Our  bill  of  revivor  is  probably  borrow- 
ed from  this  proceeding. 

CITATION.  A  writ  issued  out  of  a  court 
of  competent  jurisdiction,  commanding  a  per- 
son therein  named  to  appear  on  a  day  named 
and  do  something  therein  mentioned,  or 
show  cause  why  he  should  not.  Proctor, 
Pract 

The  act  by  which  a  person  is  so  summoned 
or  cited. 

In  the  ecclesiastical  law,  the  citation  is  the  be- 
ginning and  foundation  of  the  whole  cause,  and  is 
said  to  have  six  requisites,  namely:  the  insertion  of 
the  name  of  the  judge,  of  the  promovert,  of  the  im- 
pugnant,  of  the  cause  of  suit,  of  the  place,  and  of 
the  time  of  appearance ;  to  which  may  be  added 
the  affixing  the  seal  of  the  court,  and  the  name  of 
the  register  or  his  deputy.  1  Brown,  Civ.  Law  453, 
454;  Ayliffe,  Parerg.  xliii.  175;  Hall,  Adm.  Pr.  5; 
Merlin,   Rep. 

The  process  issued  in  courts  of  probate 
and  admiralty  courts.  It  is  usually  the  orig- 
inal process  in  any  proceeding  where  used, 
and  is  in  that  respect  analogous  to  the  writ 
of  capias  or  summons  at  law,  and  the  sub- 
poena in  chancery. 

CITATION  OF  AUTHORITIES.  The  pro- 
duction of  or  reference  to  the  text  of  acts 
of  legislatures,  treatises,  or  cases  of  similar 
nature  decided  by  the  courts,  in  order  to 
support  propositions  advanced. 

As  the  knowledge  of  the  law  is  to  a  great 
degree  a  knowledge  of  precedents,  it  follows 
that  there  must  be  necessarily  a  frequent  ref- 
erence to  these  preceding  decisions  to  obtain 
support  for  propositions  advanced  as  being 
statements  of  what  the  law  is.  Constant  ref- 
erence to  the  law  as  it  is  enacted  is,  of 
course,  necessary.  References  to  the  works 
of  legal  writers  are  also  desirable  for  elucida- 
tion and  explanation  of  doubtful  points  of 
law. 

The  civilians  on  the  continent  of  Europe, 
in  referring  to  the  Institutes,  Code,  and 
Pandects  or  Digest,  usually  give  the  number, 
not  of  the  book,  but  of  the  law,  and  the  first 
word  of  the  title  to  which  it  belongs ;  and, 
as  there  are  more  than  a  thousand  of  these, 
it  is  no  easy  task  for  one  not  thoroughly  ac- 


quainted with  those  collections  to  find  the 
place  to  which  reference  is  made.  The  Amer- 
ican writers  generally  follow  the  natural 
mode  of  reference,  by  putting  down  the  name 
of  the  collection,  and  then  the  number  of  the 
book,  title,  law,  and  section.  For  example, 
Inst.  4.  15.  2.  signifies  Institutes,  bonk  4.  ti- 
tle 15,  and  section  2;  Dig.  41.  9.  1.  3.  D 
Digest,  book  41,  title  9,  law  1,  seeti 
pro  dote,  or  fj  pro  dote,  signifies  Bectton  3, 
law  1,  of  the  book  and  title  of  the  Digest  or 
Pandects  entitled  pro  dote.  It  is  proper  to 
remark  that  Dig.  and  ff  are  equivalent:  the 
former  signifies  Digest,  and  the  latter — 
which  is  a  careless  mode  of  writing  the 
Greek  letter  a\  the  first  letter  of  the  word 
navdiicrai — signifies  Pandects;  and  the  Digest 
and  Pandects  are  different  names  for  one 
and  the  same  thing.  The  Code  is  cited  in 
the  same  way.  The  Novels  are  cited  by  their 
Dumber,  with  that  of '  the  chapter  and  para- 
graph: for  example,  Nov.  1S5.  2.  4.  for  No- 
vella Justiniani  1S5,  capite  2,  paragraphs  4. 
Novels  are  also  quoted  by  the  collation,  the 
title,  chapter,  and  paragraph,  as  follows: 
In  Authcntico,  Collatione  1,  titulo  1,  cap.  2S1. 
The  Authentics  are  quoted  by  their  first 
words,  after  which  is  set  down  the  title  of 
the  Code  under  which  they  are  placed:  for 
example,  Authentica,  cum  testator.  < 
ad  legem  fascidiam.  See  Mackeldey,  Civ. 
Law  §  65 ;  Domat,  Civ.  Law,  Cush.  ed.  Ap- 
pendix ;    Decretales  Gregorii  Noni. 

Statutes  of  the  states  are  here  cited  by  giv- 
ing the  number  of  the  volume  (where  there  are 
more  volumes  than  one),  the  name  of  the  state 
(using  the  common  geographical  abbreviation),  the 
designation  of  the  code,  and  the  page  where  the 
statute  or  provision  in  consideration  is  found:  thus, 
1  N.  Y.  Rev.  Stat.  4th  ed.  63.  To  this  it  is  desirable 
to  add,  when  regard  for  space  allows,  the  chapter 
and  section  of  the  statute  referred  to. 

United  States  statutes,  and  statutes  of  the  states 
not  included  in  the  codified  collection  of  the  state, 
are  cited  as  statutes  of  the  year  in  which  they  were 
enacted,  or  by  the  proper  section  of  the  Revised 
Statutes. 

English  statutes  are  referred  to  by  indicating  the 
year  of  the  reign  in  which  they  were  enacted,  the 
chapter  and  section:  thus,  17  &  18  Vict,  c  96,  §  2, 
or  the  date  or  year  of  the  act  Recent  English 
authors  are  coming  to  give  the  date  or  the  year  in 
the  text  and  perhaps  the  regnal  year  in  a  foot  note. 

Text-books  are  referred  to  by  giving  the  number 
of  the  volume  (if  more  than  one),  and  the  name  of 
the  author,  with  an  abbreviation  of  the  title  of  the 
work  sufficiently  extended  to  distinguish  it  from 
other  works  by  the  same  author,  and  to  indicate  the 
class  of  subjects  of  which  it  treats:  thus,  2  Story, 
Const. 

Where  an  edition  is  referred  to  which  has  been 
prepared  by  other  persons  than  the  authors,  or 
where  an  edition  subsequent  to  the  first  is  referred 
to,  this  fact  is  sometimes  indicated,  and  the  page, 
section,  or  paragraph  of  the  edition  cited  is  given: 
thus,  Angell  &  A.  Corp.,  Lothrop  ed.  96 ;  Smith, 
Lead.  Cas.,  5th  Hare  &  W.  ed.  173.  The  various  edi- 
tions of  Blackstone's  Commentaries,  however,  have 
the  editor's  name  preceding  the  title  of  the  book: 
thus  Sharswood,  Bla.  Com.;  Coleridge.  Bla.  Com.; 
wherever  the  reference  is  to  a  note  by  the  editor  cit- 
ed ;  otherwise  the  reference  is  merely  to  Blackstone. 

The  earlier  reports  of  the  Federal  courts  of  the 
United  States,  and  of  the  English,  Irish,  and  Scotch 
courts,  are  cited  by  the  names  of  the  reporters: 
thus,  3  Cra.   96;    6  East   24L     In   a   few  instances. 


CITATION  OF  AUTHORITIES 


490 


CITIZEN 


common  usage  has  given  a  distinctive  name  to  a 
series ;  and  wherever  this  is  the  case  such  name 
has  been  adopted;    as,  Term;    C.  B.  ;    Exch. 

The  reports  of  the  state  courts  are  cited  by  the 
name  of  the  state,  wherever  a  series  of  such  reports 
has  been  recognized  as  existing:  thus,  5  111.  63;  21 
Pa.  96  ;  and  the  same  rule  applies  to  citations  of 
the  reports  of  provincial  courts:  thus,  6  Low.  C.  167. 
The  later  volumes  of  reports  of  the  supreme  court 
of  the  United  States  are  cited  by  their  serial  num- 
ber:   thus,  161  U.   S. 

Otherwise,  the  reporter's  name  Is  used;  thus,  5 
Rawle  23,  or  an  abbreviation  of  it ;  as  11  Pick.  23. 
This  rule  extends  also  to  the  provincial  reports; 
and  the  principle  is  applied  to  the  decisions  of 
Scotch  and  Irish  cases,  except  in  later  cases,  when 
the  official   method  is   adopted. 

Where  the  same  reporter  reports  decisions  in 
courts  both  of  law  and  equity,  an  additional  abbre- 
viation, usually  to  equity  reports  and  sometimes  to 
law  reports,  indicates  which  series  is  meant:  thus; 
3  I  red.  Eq.  87;    14  N.  J.  L.  42. 

As  to  the  usual  mode  of  citing  English,  Scotch 
and  Irish  Reports,  see  Tables  etc.  of  All  Reports 
of  Cases  etc.  by  the  Council  of  Law  Reporting  (1895) ; 
Reports. 

For  a  list  of  abbreviations  as  used  in  this  book, 
and  as  commonly  used  In  legal  books,  see  Abbre- 
viations. 

CITE.  To  summon  ;  to  command  the  pres- 
ence of  a  person ;  to  notify  a  person  of  legal 
proceedings  against  him  and  require  his  ap- 
pearance thereto.     See  Citation. 

CITIZEN.  In  English  Law.  An  inhabit- 
ant of  a  city.  1  Rolle,  Abr.  138;  18  L.  Q. 
Rev.  49.  The  representative  of  a  city,  in 
parliament.    1  Bla.  Com.  174. 

At  common  law  a  natural-born  subject  in- 
cluded every  child  born  in  England  of  alien 
parents  except  the  child  of  an  ambassador  or 
diplomatic  agent  or  of  an  alien  enemy  in 
hostile  occupation  of  the  place  where  the 
child  was  born ;  U.  S.  v.  Wong  Kim  Ark,  169 
U.  S.  649,  18  Sup.  Ct.  456,  42  L.  Ed.  890.  It 
made  no  difference  whether  the  parents  were 
permanently  or  only  temporarily  residing  in 
England;    Cockb.  Nat.  7. 

In  Roman  Law.  Under  Roman  law  there 
were  four  methods  of  acquiring  citizenship: 
1.  Every  man  was  a  citizen  whose  father  was 
such  before  him.  2.  A  slave  when  he  became 
a  free  man  followed  the  condition  of  his 
former  master.  3.  Certain  privileged  classes 
by  statutes  could  by  their  own  acts  become 
citizens,  as  by  service  for  three  years  in  thev 
Roman  armies,  or  the  erection  of  a  house  in 
Rome  worth  at  least  100,000  sesterces,  or 
building  a  ship  and  for  six  years  carrying 
corn  to  Rome.  4.  By  legislation  such  aliens 
as  were  thought  fit  were  received  into  citi- 
zenship. This  would  now  be  termed  nat- 
uralization. 

Citizenship  might  be  lost  by  reduction  into 
Hlavery,  capture  in  war,  banishment  and  vol- 
untary expatriation. 

The  net  result  of  citizenship  was  that  by  it 
alone  one  became  entitled  to  the  protection 
of  the  laws — the  jus  civile.  It  was  exclusive 
and  personal,  not  territorial.  For  a  discus- 
sion of  the  subject,  see  17  L.  Q.  Rev.  270. 

See  Jus  Civitatis. 

The  term  citizen  was  used  in  Rome  to  in- 


dicate the  possession  of  private  civil  rights, 
including  those  accruing  under  the  Roman 
family  and  inheritance  law  and  the  Roman 
contract  and  property  law.  All  other  sub- 
jects were  peregrines.  But  in  the  beginning 
of  the  3d  century  the  distinction  was  abolish- 
ed and  all  subjects  were  citizens;  1  Sel.  Es- 
says in  Anglo-Amer.   L.   H.  578. 

By  the  Roman  law  the  citizenship  of  the 
child  followed  that  of  the  parent.  The  Code 
Napoleon  changed  the  law  of  France,  which 
until  then  (1S07)  had  followed  the  feudal 
rule  that  citizenship  was  determined  by 
birth,  to  the  rule  of  the  descent  of  blood,  the 
jus  sanguinis  of  the  civil  law.  It  has  been 
contended  that  this  is  the  true  principle  of 
international  law;  Vattel,  b.  1,  c.  19,  §  212; 
Bar,  Int.  L.  §  31 ;  dissenting  opinion  in  U.  S. 
v.  Wong  Kim  Ark,  169  U.  S.  649,  18  Sup.  Ct. 
456,  42  L.  Ed.  890.  But  the  last  case  settled 
the  law  of  the  United  States  that  mere  birth 
within  the  country  confers  citizenship,  fol- 
lowing the  rule  of  the  English  common  law 
and  denying  the  existence  of  a  settled  and 
definite  rule  of  international  law  inconsist- 
ent therewith. 

In  American  Law.  One  who,  under  the 
constitution  and  laws  of  the  United  States, 
has  a  right  to  vote  for  representatives  in 
congress,  and  other  public  officers,  and  who 
is  qualified  to  fill  offices  in  the  gift  of  the  peo- 
ple. 

All  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdic- 
tion thereof,  are  citizens  of  the  United 
States  and  of  the  state  wherein  they  reside ; 
14th  Amendment,  U.  S.  Const. 

One  of  the  sovereign  people.  A  constituent 
member  of  the  sovereignty,  synonymous  with 
the  people.  Scott  v.  Sandford,  19  How.  (U. 
S.)  404,  15  L.  Ed.  691. 

A  member  of  the  civil  state  entitled  to  all 
its  privileges.  Cooley,  Const.  Lim.  77.  See 
U.  S.  v.  Cruikshank,  92  U.  S.  542,  23  L.  Ed. 
5S8;  Minor  v.  Happersett,  21  Wall.  (U.  S.) 
162,  22  L,  Ed.  627 ;    Web.  Cit.  48. 

The  provisions  of  the  U.  S.  R.  S.  in  rela- 
tion to  citizens  are  as  follows: 
i  .  Sec.  1992.  All  persons  born  in  the  United 
States  and  not  subject  to  any  foreign  power, 
excluding  Indians  not_taxed,  are  declared  to 
be  citizens  of  the  United  States. 

Sec.  1993.  All  children  heretofore  born  or 
hereafter  born  out  of  the  limits  and  jurisdic- 
tion of  the  United  States,  whose  fathers 
were  or  may  be  at  the  time  of  their  birth  citi- 
zens thereof,  are  declared  to  be  citizens  of 
the  United  States ;  but  the  rights  of  citizen- 
ship shall  not  descend  to  children  whose  fa- 
thers never  resided  in  the  United  States. 

Sec.  199^.  Any  woman  who  is  now  or  may 
hereafter  be  married  to  a  citizen  of  the  Unit- 
ed States,  and  who  might  herself  be  lawfully 
naturalized,  sball  be  deemed  a  citizen. 

The  term  natural-born  citizen  used  in  the 
federal   constitution  is  not  therein   defined. 


CITIZEN 


491 


CITIZEN 


Its  meaning  must  be  gathered  from  the  com- 
mon law;  U.  S.  v.  Wong  Kim  Ark,  1G9  U. 
S.  649,  IS  Sup.  Ct.  456,  42  L.  Ed.  890. 

Citizens  are  either  native-born  or  natu- 
ralized. Native  citizens  may  fill  any  oilice; 
naturalized  citizens  may  be  elected  or  ap- 
pointed to  any  office  under  the  constitution 
of  the  United  States,  except  the  offices  of 
president  and  vice-president. 

The  right  of  citizenship  never  descends  in 
the  legal  sense,  either  by  the  common  law, 
or  under  the  common  naturalization  acts.  It 
is  incident  to  birth  in  the  country,  or  it  is 
given  personally  by  statute;  Pamphlet  by 
Mr.  Binney  on  the  AUenigense  of  the  United 
States  (1853),  partly  published  in  2  Am.  E. 
Reg.  193  (1854).  See  sub-tit.  In  Roman  Law, 
supra. 

Generally  it  is  presumed,  at  least  until  the 
contrary  is  shown,  that  every  person  is  a 
citizen  of  the  country  in  which  he  resides; 
Shelton  v.  Tiffin,  6  How.  (U.  S.)  103,  12  L. 
Ed.  387;  Molyneaux  v.  Seymour,  30  Ga.  440, 
76  Am.  Dec.  662;  State  v.  Haynes,  54  la. 
109,  6  N.  W.  156;  Moore  v.  Wilson's  Adm'rs, 
10  Yerg.  (Tenn.)  406;  Quinby  v.  Duncan,  4 
Harr.  (Del.)  383.  Where  it  is  shown  that 
a  person  was  once  a  citizen  of  a  foreign  coun- 
try even  though  residing  in  another,  the  pre- 
sumption is,  until  the  contrary  appears,  that 
he  still  remains  such ;  Hauenstein  v.  Lyn- 
ham,  100  U.  S.  483,  2.1  E.  Ed.  62S;  Ehrlich  v. 
Weber,  114  Tenn.  711,  88  S.  W.  188 ;  Bode  v. 
Trimmer,  82  Cal.  513,  23  Pac.  187;  Charles 
Green's  Son  v.  Salas,  31  Fed.  106.  Evidence 
of  foreign  birth  overcomes  the  presumption 
of  citizenship  raised  by  residence  and  raises 
the  presumption  of  citizenship  of  the  coun- 
try of  birth ;  State  v.  Jackson,  79  Vt  504,  65 
Atl.  657,  8  L.  R.  A.   (N.  S.)    1245. 

The  first  clause  of  section  1  of  the  14th 
Amendment  of  the  United  States  Constitu- 
tion for  the  first  time  recognizes  and  defines 
citizenship  of  the  United  States  and  makes 
those  who  are  entitled  to  it  citizens  of  the 
state  in  which  they  reside.  This  amendment 
changed  the  origin  and  character  of  Ameri- 
can citizenship,  or  at  least  removed  all  doubt. 
Instead  of  a  man's  being  a  citizen  of  one  of 
the  states,  he  was  now  made  a  citizen  of  any 
state  in  which  he  might  choose  to  reside  be- 
cause he  was  antecedently  a  citizen  of  the 
United  States.  Blaine,  Twenty  Years  of 
Congress,  vol.  2,  p.  1S9.  There  is  therefore  a 
twofold  citizenship  under  our  system — fed- 
eral citizenship  and  state  citizenship; 
Slaughter-House  Cases,  l(j  Wall.  (U.  S.)  36, 
21  L.  Ed.  394;  U.  S.  v.  Cruikshank,  92  U.  S. 
542,  23  L.  Ed.  5S8 ;  Twining  v.  New  Jersey, 
211  U.  S.  78,  29  Sup.  Ct.  14,  53  L.  Ed.  97. 
One  may  be  a  citizen  of  the  United  States 
without  being  a  citizen  of  a  state,  and  an 
important  element  is  necessary  to  convert  the 
former  into  the  latter.  lie  must  reside  with- 
in the  state  to  make  him  a  citizen  thereof, 
but  it  is  only  necessary  that  he  should  be 
born  or  naturalized  in  the  United  States  to 


make  him  a  citizen  of  the  Union;   Slaughter- 
House  Cases,  16  Wall.   |  I 
Ed.  394:    U.  S.  v.  Wong  Kim  Ark,  109  U.  S. 
649,  18  Sup.  Ct.  456,  -VI  L.  Ed 

The  object  of  the  amendment  in  respect  to 
citizenship  was  to  preserve  equality  of  I 
and  prevent  discrimination  between  en 
but  not  radically  to  change  the  whole 
of    state   and   federal    governments    and    the 
relation   of    both    to    the   people    or    to 
other;    McPherson  v.  Blacker,   146   I 
13  Sup.  Ct.  3,  36  L.  Ed.  8(59.     It  declares  that 
persons  may  be  citizens  of  the  United  States 
without  regard  to  their  citizenship  of  a  par- 
ticular  state  and   makes   "all   persona   lorn 
within  the  United  States  and  subject  to  its 
jurisdiction   citizens   of   the    United    States." 
This  language  is  intended  to  except  children 
of  "ministers,   consuls,   and  citizens  or   sub- 
jects of  foreign  states  born  within  the  United 
States."     In  order  to  make  a  citizen  of  the 
United   States  also  a  citizen  of  a  state,   he 
must  reside  within  it.     This   distinction  be- 
comes important  in  connection  with  the  ques- 
tion,   hereafter   noted,    as   to   what   are   the 
privileges  and  immunities  guaranteed  by  the 
amendment;  Slaughter-House  Cases,  16  Wall. 
(U.  S.)  36,  72,  21  L.  Ed.  394. 

The  object  of  the  clause  is  to  protect  from 
the  hostile  legislation  of  the  states  the  privi- 
leges and  immunities  of  citizens  of  the  Unit- 
ed States;  U.  S.  v.  Harris,  106  U.  S.  629,  1 
Sup.  Ct.  601,  27  L.  Ed.  290.  It  applies,  so 
far  as  state  citizenship  is  concerned,  only  to 
citizens  removing  from  one  state  to  another ; 
In  re  Hobbs,  1  Woods,  542,  Fed.  <  as.  No. 
6,550;  Live  Stock  Dealers'  &  Butchers'  Assn 
v.  Slaughter-House  Co.,  1  Abb.  U.  S.  397, 
Fed.  Cas.  No.  8,408.  The  constitution  had 
already  provided  in  art.  IV,  §  2,  that  "the 
citizens  of  each  state  shall  be  entitled  to  all 
the  privileges  and  immunities  of  citizens  in 
the  several  states."  As  to  the  scope  and 
meaning  of  these  words,  see  Privileges  and 
Immunities. 

The  14th  Amendment  was  not  intended  to 
impose  any  new  restrictions  upon  citizenship 
or  to  prevent  any  persons  from  becoming 
citizens  by  the  fact  of  birth  within  the  Unit- 
ed States,  who  would  thereby  have  become 
citizens  according  to  the  law  existing  before 
its  adoption.  It  is  declaratory  in  form  and 
enabling  and  extending  in  effect.  Its  main 
purpose  was  to  establish  the  citizenship  of 
free  negroes  and  to  put  it  beyoud  doubt  that 
all  blacks  as  well  as  whites  born  or  natural- 
ized within  the  jurisdiction  of  the  United' 
States  are  citizens  thereof;  U.  S.  v.  Wong 
Kim  Ark,  169  U.  S.  649,  18  Sup.  Ct.  456,  42 
L.  Ed.  890;  Slauu-hter-llouse  Cases,  ltj  Wall. 
(U.  S.)  36,  21  E.  Ed.  394;  Strauder  v.  West 
Virginia,  100  U.  S.  303,  25  L.  Ed.  664;  In  re 
Virginia,  100  U.  S.  339,  25  L.  Ed.  676;  Neal 
v.  Delaware,  103  U.  S.  370,  26  L.  Ed.  507  ; 
Elk  v.  Wilkius,  112  U.  S.  94,  5  Sup.  Ct.  41,  28 
L.  Ed.  643 ;   Benny  v.  O'Brien,  58  N.  J.  L.  36. 


CITIZEN 


492 


CITIZEN 


32  AtL  696;  Van  Valkenburg  v.  Brown,  43 
Cal.  43,  13  Am.  Rep.  136. 

The  Civil  Rights  Act  of  1866  used  lan- 
guage very  similar  to  that  6f  the  14th 
Amendment,  and  Harlan,  J.,  in  a  dissenting 
opinion  quoted  from  the  veto  message  of 
President  Johnson  his  interpretation  of  its 
meaning :  It  "comprehends  the  Chinese  of 
the  Pacific  states,  Indians  subject  to  taxa- 
tion, the  people  called  gypsies,  as  well  as  the 
entire  race  designated  as  blacks,  persons  of 
color,  negroes,  mulattoes,  and  persons  of 
African  blood.  Every  individual  of  those 
races  born  in  the  United  States  is  made  a 
citizen  thereof;"  Elk'  v.  Wilkins,  112  U.  S. 
94,  114,  5  Sup.  Ct.  41,  28  L.  Ed.  643 ;  see  also 
In  re  Gee  Hop,  71  Fed.  274. 

"No  white  person  born  within  the  limits 
of  the  United  States  and  subject  to  their  ju- 
risdiction, or  born  without  those  limits  and 
subsequently  naturalized  under  their  laws, 
owes  his  status  of  citizenship  to  the  recent 
amendments  to  the  federal  constitution ;" 
Van  Valkenburg  v.  Brown,  43  Cal.  43,  13  Am. 
Rep.  136. 

The  amendment  does  not  give  to  congress 
power  to  protect  by  legislation  the  rights  of 
state  and  national  citizenship;  Smoot  v.  Ry. 
Co.,  13  Fed.  337 ;  but  it  distinguishes  be- 
tween the  two ;  Frasher  v.  State,  3  Tex. 
App.  263,  30  Am.  Rep.  131.  A  person  may  be 
a  citizen  of  the  United  States  without  being 
a  citizen  of  any  state ;  Slaughter-House 
Cases,  16  Wall.  (U.  S.)  74,  21  L.  Ed.  394; 
U.  S.  v.  Cruikshank,  1  Woods,  308,  Fed.  Cas. 
No.  14,897;  Cully  v.  R.  Co.,  1  Hughes,  536, 
Fed.  Cas.  No.  3,466.  The  term  citizen  is 
analogous  to  subject  at  common  law ;  U.  S. 
v.  Rhodes,  1  Abb.  U.  S.  39,  Fed.  Cas.  No.  16,- 
151;  Sampson  v.  Burgwin,  20  N.  C.  21;  Mc- 
Kay v.  Campbell,  2  Sawy.  129,  Fed.  Cas.  No. 
8,840.  The  amendment  does  not  confer  citi- 
zenship on  persons  of  foreign  birth ;  Van 
Valkenburg  v.  Brown,  43  Cal.  43,  13  Am.  Rep. 
136.  Neither  Chinese  nor  Japanese  can  be- 
come citizens ;  In  re  Ah  Yup,  5  Sawy.  155, 
Fed.  Cas.  No.  104;  In  re  Look  Tin  Sing,  21 
Fed.  905;  In  re  Saito,  62  Fed.  126;  In  re 
Gee  Hop,  71  Fed.  274 ;  State  v.  Ah  Chew,  16 
Nev.  51,  40  Am.  Rep.  4S8;  unless  born  in  this 
country  of  resident  parents  not  engaged  in 
the  diplomatic  service ;  In  re  Look  Tin  Sing, 
10  Sawy.  353,  21  Fed.  905;  U.  S.  v.  Wong 
Kim  Ark,  169  U.  S.  649,  18  Sup.  Ct  456,  42  L. 
Ed.  890. 

Indians  are  not  citizens;  McKay  v.  Camp- 
bell, 2  Sawy.  129,  Fed.  Cas.  No.  8,840 ;  Elk  v. 
Wilkins,  112  U.  S.  94,  5  Sup.  Ct.  41,  28  L. 
Ed.  643 ;  but  an  Indian  if  taxed,  after  tribal 
relations  are  dissolved,  is  a  citizen;  U.  S.  v. 
Elm,  23  Int.  Rev.  Rec.  419,  Fed.  Cas.  No.  15,- 
048 ;  and  the  child  of  a  member  of  one  of  the 
Indian  tribes  within  the  United  States  is  not 
a  citizen,  though  born  in  the  United  States ; 
McKay  v.  Campbell,  2  Sawy.  118,  Fed.  Cas. 
No.  8,840;  and  although  the  parents  have 
given  up  their  tribal  relations  they  cannot 


become  citizens  until  they  are  first  natu- 
ralized; Elk  v.  Wilkins,  112  U.  S.  94,  103,  5 
Sup.  Ct  41,  28  L.  Ed.  643. 

Free  persons  of  color,  born  in  the  United 
States,  were  always  entitled  to  be  regarded 
as  citizens ;  U.  S.  v.  Rhodes,  1  Abb.  U.  S.  28, 
Fed.  Cas.  No.  16,151 ;  but  see  Dred  Scott  v. 
Sandford,  19  How.  (U.  S.)  393,  15  L.  Ed. 
691.  Negroes  born  within  the  United  States 
are  citizens;  U.  S.  v.  Canter,  2  Bond  389, 
Fed.  Cas.  No.  14,719;  In  re  Turner,  Chase's 
Dec.  157,  Fed.  Cas.  No.  14,247  (but  not  before 
the  14th  Amendment;  Dred  Scott  v.  Sand- 
ford,  9  How.  (U.  S.)  393,  15  L.  Ed.  691 ;  Mar- 
shall v.  Donovan,  10  Bush  (Ky.)  681)  ;  but 
not  an  escaped  slave  residing  in  Canada  or 
his  children;  People  v.  Board,  26  Mich.  51, 
12  Am.  Rep.  297. 

A  woman  is  a  citizen;  Bradwell  v.  Illinois, 
16  Wall.  (U.  S.)  130,  21  L.  Ed.  442;  Minor 
v.  Happersett,  21  Wall.  (U.  S.)  162,  22  L.  Ed. 
627;  but  the  amendment  does  not  confer  up- 
on her  the  right  to  vote ;  U.  S.  v.  Cruikshank, 
92  U.  S.  542,  23  L.  Ed.  5S8;  U.  S.  v.  Cruik- 
shank, 1  Woods,  308,  Fed.  Cas.  No.  14,897 ;  U. 
S.  v.  Anthony,  11  Blatchf.  200,  Fed.  Cas.  No. 
14,459;  Spencer  v.  Board,  1  McArthur  (D. 
C.)  169,  29  Am.  Rep.  582;  Van  Valkenburg  v. 
Brown,  43  Cal.  43,  13  Am.  Rep.  136;  Minor 
v.  Happersett,  21  Wall.  (U.  S.)  162,  22  L. 
Ed.  627 ;  or  to  practice  law ;  Bradwell  v. 
Illinois,  supra. 

Children  born  in  a  foreign  country  of 
American  parents,  who,  though  residing 
there,  still  claim  citizenship,  are  citizens  of 
the  United  States;  Ware  v.  Wisner,  50  Fed. 
310;  so  if  the  father  only  is  a  citizen ;  R.  S. 
§  1993.  The  children  of  ambassadors  and 
ministers  at  foreign  courts,  however,  are 
citizens;  U.  S.  v.  Wong  Kim  Ark,  169  U.  S. 
649,  18  Sup.  Ct.  456,'  42  L.  Ed.  890 ;  Inglis  v. 
Sailor's  Snug  Harbor,  3  Pet.  (U.  S.)  155,  7 
L.  Ed.  617.  A  person  born  in  this  country  of 
alien  parents  who  were  domiciled,  but  not 
naturalized  here,  is  a  citizen ;  Benny  v. 
O'Brien,  58  N.  J.  L.  36,  32  Atl.  696 ;  U.  S.  v. 
Wong  Kim  Ark,  169  U.  S.  649,  18  Sup.  Ct 
456,  42  L.  Ed.  890.  The  child  of  American 
parents  born  in  a  foreign  country,  on  board 
an  American  ship  of  which  his  father  was 
captain  is  a  citizen  of  the  United  States;  U. 
S.  v.  Gordon,  5  Blatchf.  18,  Fed.  Cas.  No. 
15,231.  All  children  born  out  of  the  United 
States,  who  are  citizens  thereof  and  who  con- 
tinue to  reside  out  of  the  United  States, 
shall,  in  order  to  receive  the  protection  of 
the  government,  be  required,  upon  reaching 
the  age  of  eighteen,  to  record  at  an  American 
consulate  their  intention  to  become  residents 
and  remain  citizens  of  the  United  States,  and 
shall  be  further  required  to  take  the  oath  of 
allegiance  to  the  United  States  upon  attain- 
ing their  majority;  Act  March"  2,  1907.  It  is 
said  that  formerly  a  man  might  from  the  cir- 
cumstances of  his  birth  be  a  subject  of  two 
states  at  once.  A  child  of  French  parents 
born  in  England  owed  allegiance  to  the  King 


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of  England.  If  he  went  to  France  he  carried 
with  him  that  allegiance.  It  was  the  dis- 
tinction between  the  jus  soli  and  the  jus  san- 
guinis. But  by  the  act  of  1870  the  reception 
of  a  British  subject  into  the  allegiance  of  a 
foreign  state  extinguishes  his  British  nation- 
ality ipso  jure;  no  alien  naturalized  in  Eng- 
land is  to  be  deemed  a  British  subject  while 
in  the  country  of  his  original  allegiance  so 
long  as  by  the  law  of  that  country  he  re- 
mains a  subject  of  it,  and  a  man  who  is  a 
British  subject  by  the  jus  soli  and  a  for- 
eigner by  the  jus  sanguinis  may  make  his 
election  between  these  two  conditions ;  IS 
L.  Q.  Rev.  47. 

The  act  of  March  2,  1907,  provides  that 
any  American  woman  who  marries  a  foreign- 
er shall  take  the  nationality  of  her  husband. 
At  bis  death,  she  may  resume  her  American 
citizenship  if  abroad,  by  registering  as  an 
American  citizen  within  one  year  with  a  con- 
sul of  the  United  States  or  by  returning  to 
reside  in  the  United  States,  or,  if  then  re- 
siding in  the  United  States,  by  continuing  to 
reside  there. 

Any  alien  woman  who  acquires  American 
citizenship  by  marriage  to  an  American  shall 
be  assumed  to  retain  the  same  after  his 
death,  if  she  continue  to  reside  in  the  United 
States,  unless  she  makes  formal  renunciation 
thereof  before  a  court  having  jurisdiction  to 
naturalize  aliens,  or  if  she  resides  abroad, 
she  may  retain  her  citizenship  by  register- 
ing as  such  before  a  United  States  consul 
within  one  year. 

In  Comitis  v.  Parkerson,  56  Fed.  556,  it  is 
said :  "Four  attorney-generals  of  the  United 
States  have  given  opinions  as  to  the  effect  of 
a  female  citizen  marrying  an  alien  husband. 
Two  have  held  that  she  became  an  alien ; 
two  that  she  remained  a  citizen."  That  case 
held  that  she  did  not  become  an  alien  merely 
by  her  marriage,  for  both  husband  and  wife 
intended  to  reside  in  this  country. 

A  French  woman,  who  has  become  natural- 
ized under  the  statute  by  a  marriage  with  ah 
American  citizen,  will  again  become  an  alien, 
by  a  second  marriage  to  a  French  citizen 
residing  in  this  country ;  Pequignot  v.  De- 
troit, 16  Fed.  211.  The  common  law  did  not 
recognize  marriage  as  affecting  in  any  way 
the  nationality  of  the  parties.  An  alien 
woman  who  married  a  British  subject  re- 
mained an  alien,  and  a  woman  who  was  a 
British  subject  could  not  put  off  her  allegiance 
by  becoming  the  wife  of  an  alien.  This  is 
changed  by  the  naturalization  act  of  1870; 
18  L.  Q.  R.  49. 

The  child  born  of  alien  parents  in  the 
United  States  is  held  to  be  a  citizen  thereof, 
and  to  be  subject  to  duties  with  regard  to 
this  country  which  do  not  attach  to  the 
father ;  and  when  children  of  American  fa- 
thers are  born  without  the  jurisdiction  of  the 
United  States  the  country  within  whose  ju- 
risdiction they  are  born  may  claim  them  as 
citizens;   U.  S.  y.  Wong  Kim  Ark,  109  U.  S. 


649,  691,  18  Sup.  Ct.  456,  42  L.  Ed.  890.  Such 
children  are  said  to  be  born  to  a  double 
character;  the  citizenship  of  the  father  is 
that  of  the  child,  so  far  as  the  laws  of  the 
country  of  which  the  father  is  a  citizen  are 
concerned,  and  within  the  jurisdiction  of  that 
country,    but    the    child    may  uother 

fealty  besides  that  which  attaches  to  the 
father.  Opinions  of  the  Executive  Depart- 
ments on  Naturalization,  Expatriation,  and 
Allegiance  (1S73)  17,  18;  U.  S.  For.  Rel. 
L873  74,  1191,  1192.  The  conclusions  in  the 
opinion  above  cited  by  Attorney-General 
Hoar  were  quoted  and  adopted  by  Secretary 
Bayard  in  1SS6,  when  a  son  born  of  Ameri- 
can parents  in  France  made  an  application 
for  a  passport ;   U.  S.  For.  ReL  18S6,  303. 

It  is  said  that  the  children  of  our  citizens 
born  abroad,  and  the  children  of  fori  L 
born  in  the  United  States,  have  the  right,  on 
arriving  at  full  age,  to  elect  one  allegiance 
and  repudiate  the  other;  Whart.  Confl.  L.  §{ 
10,  12.  The  objection  has  been  taken  that  as 
our  law  provides  no  right  of  election  by  or 
for  a  child,  as  do  the  continental  codes,  the 
resulting  dual  citizenship  is  contrary  to  the 
theory  of  citizenship.  But  the  difficulty  is 
said  to  be  rather  apparent  than  real.  When 
a  child  is  born  in  America  of  Chinese  par- 
ents, China  claims  him  by  the  jus  sanguinis; 
America  by  the  jus  soli.  It  is  not  a  question 
whether  he  is  an  American  or  a  Chinaman. 
He  is  both.  The  municipal  laws  being  thus 
in  conflict,  his  citizenship  at  any  time  will 
depend  upon  whether  he  is  subject  to  the 
jurisdiction  of  the  one  or  of  the  other  coun- 
try. The  duality  of  citizenship  is  a  fact, 
only  in  a  third  country.  In  China  he  is  a 
Chinaman;  in  America,  an  American;  12 
Ilarv.  L.  Rev.  55.  See  Domicil;  Residence; 
Naturalization  ;   Alien. 

Where  a  foreigner  takes  the  oath  declar- 
ing his  intention  of  becoming  a  citizen  of 
the  United  States,  his  minor  sons  thereby 
acquire  an  inchoate  status  as  citizens,  and  if 
they  attain  majority  before  their  father  com- 
pletes his  naturalization,  they  are  capable  of 
becoming  citizens  by  other  means  than  the 
direct  application  provided  for  by  the  natu- 
ralization laws;  Boyd  v.  Thayer,  143  U.  S. 
135,  12  Sup.  Ct.  375,  36  L.  Ed.  103;  where  a 
resident  alien  woman  marries  a  naturalized 
citizen,  under  R.  S.  §  2172,  her  children  re- 
siding with  her  are  citizens ;  U.  S.  v.  Cellar, 
11  I'.iss.  314,  13  Fed.  82;  Kreitz  v.  Behrens- 
meyer.  125  111.  141,  17  N.  E.  232,  S  Am.  St. 
Rep.  349 ;    For.  Rel.  1900,  527. 

Nationality  is  not  inherited  through  women 
and  an  illegitimate  child,  born  abroad  of  an 
American  woman,  is  not  a  citizen  of  the 
United  States:  3  Moore,  Dig.  Int.  I..  285; 
but  when  the  reputed  father  of  an  illegiti- 
mate child  marries  the  mother  and  was  aft- 
erwards naturalized,  the  child  was  a  citizen 
of  the  United  States;  Dale  v.  Irwin.  7S  111. 
170.  The  fact  that  an  unnaturalized  person 
of  foreign  birth  is  enabled  by  a  state  statute 


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494 


CITIZEN 


1/ 


to  vote  and  hold  office  does  not  make  him  a 
citizen;  Lanz  v.  Randall,  4  Dill.  425,  Fed. 
Cas.  No.  8,080. 

The  age  of  the  person  does  not  affect  his 
citizenship,  though  it  may  his  political 
rights  ;  1  Abb.  L.  Diet.  224  ;  nor  the  sex;  id.; 
Minor  v.  Happersett,  21  Wall.    (U.  S.)    102, 

22  L.  Ed.  627;    U.  S.  v.  Reese,  92  U.  S.  214, 

23  L.  Ed.  563;  the  right  to  vote  and  the 
right  to  hold  office  are  not  necessary  con- 
stituents of  citizenship ;  Minor  v.  Happer- 
sett, 21  Wall.  (U.  S.)  102,  22  L.  Ed.  627; 
Van  Valkenburg  v.  Brown,  43  Cal.  43,  13  Am. 
Rep.  136: 

All  natives  are  not  citizens  of  the  United 
States:  the  descendants  pf  the  aborigines 
are  not  entitled  to  the  rights  of  citizens; 
see  supra;  also  Elk  v.  Wilkins,  112  U.  S.  103, 
5  Sup.  Ct.  41,  28  L.  Ed.  643.  Anterior  to  the 
adoption  of  the  constitution  of-  the  United 
States,  each  state  had  the  right  to  make  citi- 
zens of  such  persons  as  it  pleased. 

A  citizen  of  the  United  States  residing  in 
any  of  the  states  is  a  citizen  of  that  state ; 
Gassies  v.  Ballon,  6  Pet.  (U.  S.)  761,  8  L. 
Ed.  573 ;  Catlett  v.  Ins.  Co.,  Paine  594,  Fed. 
Cas.  No.  2,517;  Health  v.  Austin,  12  Blatch. 
320,  Fed.  Cas.  No.  6,305;  Prentiss  v.  Barton, 
1  Brock.  391,  Fed.  Cas.  No.  11,384;  Rogers 
v.  Rogers,  1  Paige  Ch.  (N.  X.)  183;  Smith 
v.  Moody,  26  Ind.  299. 

A  person  may  be  a  citizen  for  commercial 
purposes  and  not  for  political  purposes; 
Field  v.  Adreon,  7  Md.  209. 

Among  the  rights  which  belong  to  the  citi- 
zen derived  from  the  constitution  and  laws 
of  the  United  States  are  the  right  to  vote  at 
a  federal  election;  In  re  Yarbrough,  110  U. 
S.  651,  4  Sup.  Ct.  152,  28  L.  Ed.  274;  the 
right  to  remain  on  a  homestead  entry  for  the 
purpose  of  perfecting  the  title ;  U.  S.  v.  Wad- 
dell,  112  U.  S.  76,  5  Sup.  Ct.  35,  28  L.  Ed. 
673 ;  the  right  to  protection  while  in  custody 
on  a  charge  of  crime  of  the  officers  of  the 
United  States ;  Logan  v.  U.  S.,  144  U.  S.  263, 
12  Sup.  Ct.  617,  36  L.  Ed.  429 ;  the  right  to 
furnish  information  to  the  authorities  of 
violations  of  the  laws  of  the  United  States ; 
In  re  Quarles,  158  U.  S.  532,  15  Sup.  Ct.  959, 
39  L.  Ed.  1080 ;  Motes  v.  U.  S.,  178  U.  S.  458, 
20  Sup.  Ct.  993.  44  L.  Ed.  1150;  the  right  to 
contract  outside  the  state  for  insurance  on 
his  property ;  Allgeyer  v.  Louisiana,  165  U. 
S.  578,  17  Sup.  Ct.  427,  41  L.  Ed.  832.  But 
the  constitution  of  the  United  States  does  not 
secure  to  any  the  right  to  work  at  a  given 
occupation  or  a  particular  calling  free  from 
injury,  oppression  or  interference  by  individ- 
ual citizens;  Hodges  v.  U.  S.,  203  U.  S.  1, 
27  Sup.  Ct.  6,  51  L.  Ed.  65. 

All  persons  who  deserted  the  naval  or 
military  service  of  the  United  States,  and 
did  not  return  thereto  within  sixty  days 
after  the  issuance  of  the  proclamation  of 
the  president,  dated  March  11,  1865,  are 
deemed  to  have  voluntarily  relinquished  and 
forfeited  their  rights  of  citizenship,  and  to 


be  incapable  of  holding  any  office  of  trust  or 
profit  under  the  United  States,  or  of  exercis- 
ing any  rights  of  citizenship  thereof;  R.  S. 
§  1996. 

As  to  citizenship  as  acquired  by  natural- 
ization, see  Allegiance;  Naturalization  ; 
Alien. 

Citizenship,  not  residence,  confers  the  right 
to  sue  in  the  federal  courts;  Haskell  v. 
Bailey,  63  Fed.  873,  11  C.  C.  A.  476.  See 
Reno.  Non-Residents,  c.  vii.  Corporations 
are  citizens  of  the  state  by  which  they  are 
created,  irrespective  of  the  citizenship  of 
their  members  ;  Paul  v.  Virginia,  8  Wall.  (U. 
S.)  168,  19  L.  Ed.  357;  National  S.  S.  Co.  v. 
Tugman,  106  U.  S.  118,  1  Sup.  Ct  58,  27  L. 
Ed.  87;  St.  Louis  &  S.  F.  R.  Co.  v.  James, 
161  U.  S.  545,  16  Sup.  Ct.  621,  40  L.  Ed.  S02  ; 
Orient  Ins.  Co.  v.  Daggs,  172  U.  S.  557,  19 
Sup.  Ct.  281,  43  L.  Ed.  552.  If  two  corpora- 
tions created  by  different  states,  are  consoli- 
dated each  still  retains  its  own  citizenship 
for  purposes  of  suit;  Nashua  &  L.  R.  Corp. 
v.  R.  Co.,  136  U.  S.  356,  10  Sup.  Ct.  1004,  34 
L.  Ed.  363;  Williamson  v.  Krohn,  66  Fed. 
655,  13  C.  C.  A.  668.  See  Reno.  Non-Resi- 
dents, §  104.    See  Merger. 

There  is  an  indisputable  legal  presump- 
tion that  a  state  corporation,  when  sued  or 
suing  in  a  circuit  court  of  the  United  States, 
is  composed  of  citizens  of  the  state  which 
created  it;  and  this  presumption  accom- 
panies it  when  it  does  business  in  another 
state,  and  it  may  sue  or  6e  sued  in  the  fed- 
eral courts  in  such  other  state  as  a  citizen  of 
the  state  of  its  original  creation;  St.  Louis 
&  S.  F.  R.  Co.  v.  James,  161  U.  S.  545,  16 
Sup.  Ct.  621,  40  L.  Ed.  802;  Barrow  S.  S. 
Co.  v.  Kane,  170  U.  S.  100,  18  Sup.  Ct.  526, 
42  L.  Ed.  964. 

A  corporation  is  not  a  "citizen"  within  the 
meaning  of  the  first  clause  of  section  1  of  the 
14th  Amendment;  Insurance  Co.  v.  New 
Orleans,  1  Woods  85,  Fed.  Cas.  No.  7,052; 
Western  Turf  Ass'n  v.  Greenberg,  204  U.  S. 
359,  27  Sup.  Ct.  384,  51  L.  Ed.  520;  North- 
western Nat.  Life  Ins.  Co.  v.  Riggs,  203  U. 
S.  243,  27  Sup.  Ct.  126,  51  L.  Ed.  168,  7  Ann. 
Cas.  1104;  Pembina  Consol.  Silver  Min.  & 
Mill.  Co.  v.  Pennsylvania,  125  U.  S.  181,  8 
Sup.  Ct.  737,  31  L.  Ed.  650 ;  but  it  is  a  person 
(a.  v.).  In  many  cases  a  corporation  is  treat- 
ed as  a  citizen  for  purposes  of  jurisdiction ; 
U.  S.  v.  Transp.  Co.,  164  U.  S.  686,  17  Sup. 
Ct.  206,  41  L.  Ed.  599.  In  order  to  ac- 
complish this  result  a  curious  legal  fiction 
was  created  which  is  discussed  infra. 

It  may  now  be  considered  as  fairly  well 
settled  that  except  as  to  the  14th  Amend- 
ment as  stated  supra,  corporations  are  recog- 
nized as  citizens  by  all  departments  of  the 
federal  government.  This  was  done  by  the 
Supreme  Court  in  construing  an  act  for  pay- 
ment of  "claims  for  property  of  citizens  of 
the  United  States"  taken  or  destroyed  by 
Indians.  It  was  held  that  the  word  "citi- 
zen" included  corporations;  U.  S.  v.  Transp. 


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495 


CITIZEN 


Co.,  164  U.  S.  6S6,  17  Sup.  Ct.  206,  41  L.  Ed. 
599.  The  word  has  also  been  frequently 
used  by  Congress  to  include  corporations; 
id.,  where  an  instance  is  referred  to  in  It. 
S.  §  2319;  the  right  to  purchase  mineral  de- 
posits in  public  lands  is  given  to  "citizens 
of  the  United  States  and  those  who  have  de- 
clared their  intention  to  become  such,"  and 
section  2321  in  prescribing  how  citizenship 
shall  be  established,  makes  specific  provi- 
sion for  the  evidence  required  "in  the  case 
of  a  corporation  organized  under  the  laws 
of  the  United  States  or  of  any  state  or 
territory  thereof."  Again  corporations  are 
expressly  recognized  as  citizens  by  the  ex- 
ecutive branch  of  the  government  in  various 
treaties  with  Great  Britain,  Venezuela,  Peru 
and  Mexico,  all  referred  to  in  the  case  last 
cited,  164  U.  S.  at  page  6S9,  17  Sup.  Ct,  206, 
41  L.  Ed.  599. 

The  doctrine  that  a  corporation  Is  a  "citi- 
zen" was  not  accepted  in  the  first  instance. 
but  it  was  treated  as  an  association  of  in- 
dividuals whose  citizenship  should  control 
the  question  of  federal  jurisdiction;  Bank  of 
U.  S.  v.  Deveaux,  5  Cra.  (U.  S.)  61,  3  L.  Ed. 
38,  where  Marshall,  C.  J.,  delivered  the  opin- 
ion. But  this  doctrine  was  speedily  ques- 
tioned and  the  Chief  Justice  regretted  the 
decision  and  expressed  his  conviction  that 
it  was  unsound  in  principle ;  Louisville,  C.  & 
C.  It.  Co.  v.  Letson,  2  How.  (U.  S.)  555,  11 
L.  Ed.  353.  The  case  however  was  followed; 
Breithaupt  v.  Bank,  1  Pet.  (U.  S.)  238,  7  L. 
Ed.  127;  and  not  until  after  his  death  depart- 
ed from.  It  was  then  first  held  that,  "when 
a  corporation  exercises  its  powers  in  the 
state  which  chartered  it,  that  is  its  resi- 
dence, and  such  an  averment  is  sufficient 
to  give  the  circuit  courts  jurisdiction." 
Louisville,  C.  &  C.  R.  Co.  v.  Letson,  2  How. 
(U.  S.)  559,  11  L.  Ed.  353.  In  that  case  the 
doctrine  was  decisively  sustained  that  "a 
corporation  created  by  and  doing  business  in 
a  particular  state  is  to  be  deemed  to  all  in- 
tents and  purposes  as  a  person,  although  an 
artificial  person,  an  inhabitant  of  the  same 
state,  for  the  purposes  of  its  incorporation, 
capable  of  being  treated  as  a  citizen  of  that 
state  as  much  as  a  natural  person.  Like  a 
citizen  it  makes  contracts,  and  though  in 
regard  to  what  it  may  do  in  some  particu- 
lars, it  differs  from  a  natural  person,  and 
in  this  especially,  the  manner  in  which  it 
can  sue  and  he  sued,  it  is  substantially,  with- 
in the  meaning  of  the  law,  a  citizen  of  the 
state  which  created  it  and  where  its  busi- 
ness is  done,  for  all  the  purposes  of  suing 
and   being  sued." 

A  few  years  after,  Daniels.  J.,  in  a  dis-i 
senting  opinion  insisted  that  a  corporation 
could  be  in  no  sense  a  citizen,  and  Catron, 
J.,  in  one  of  the  majority  opinions  in  the 
same  case,  considered  that  the  jurisdiction 
in  cases  of  corporations  depended  upon  the 
citizenship  of  the  managing  officers:  Bundle 
v.  Canal  Co.,  14  How.  101,  14  L.  Ed.  335. 


Very  soon  after  this,  against  strong 
sent,  the  doctrine  of  the  conclusive  presun  p- 
tion  from  the  habitat  of  a  corporation  as  to 
the  residence  or  citizenship  of  those  who 
used  its  name  and  exercised  its  faculties, 
was  pronounced;  Marshall  v.  ll.  Co.,  16  How. 
314,  14  L.  Ed.  953.  This  presumption 
reaffirmed  and  both  parties  held 
with  respect  to  it;  Covington  Drawbridge 
Co.  v.  Shepherd,  20  How.  227,  15  L.  Ed. 
and  the  presumption  was  held  to  be  a  "legal" 
one,  which  no  averment  or  evidence  might 
rebut;  Ohio  &  M.  R.  Co.  v.  Wheeler,  1  Black 
2S0,  17  L.  Ed.  130;  and  in  Muller  v.  1 
94  U.  S.  444,  24  L.  Ed.  207,  the  court,  by 
Strong,  J.,  said,  "A  corporation  itself  can 
be  a  citizen  of  no  state  in  the  sense  in  which 
the  word  'citizen'  is  used  in  the  constitution 
of  the  United  States,"  and  then  reiterates 
the  doctrine  of  conclusive  presumption  as 
settled  law.  Thus  the  theory  on  which  cor- 
porations were  finally  recognized  as  citizens 
was  based  upon  what  Baldwin.  C.  J.,  proper- 
ly characterized  as  a  legal  fiction ;  41  Am. 
L.  Rev.  38.  This  fiction,  as  he  says,  was 
given  definite,  and  as  it  was  supposed  final, 
shape  by  Taney,  C.  J.,  in  Ohio  &  M.  R.  Co. 
v.  Wheeler,  1  Black,  286.  17  L.  Ed.  130,  where 
not  only  was  the  doctrine  of  conclusive  pre- 
sumption sustained,  but  it  was  also  said 
that  "in  such  a  suit  it  can  make  no  differ- 
ence whether  plaintiffs  sue  in  their  own 
proper  names  or  by  the  corporate  name  and 
style  by  which  they  are  described." 

The  difficulties  arising  from  the  extension 
of  corporate  operations  to  different  states 
necessarily  caused  some  modification  of  the 
doctrine,  and  when  the  courts  were  asked  to 
extend  it  so  that  a  corporation  of  one  state 
(conclusively  presumed  to  be  composed  of 
citizens  of  that  state)  was  authorized  by  the 
law  of  another  state  to  do  business  therein. 
that  it  should  be  deemed  to  be  composed 
of  citizens  of  the  second  state  with  the 
same  jurisdictional  results,  they  said.  "We 
are  unwilling  to  sanction  such  an  extension 
of  the  doctrine,  which,  as  heretofore  estab- 
lished, went  to  the  very  verge  of  judicial 
power,"  and  having  stated  the  doctrine  as 
beginning  with  an  assumption  of  fact  that 
state  corporations  were  composed  of  citi- 
zens of  the  state  creating  them  and  then 
the  change  of  the  presumption  to  one  of  law. 
said.  "There  we  are  content  to  leave  it:"  St. 
Louis  &  S.  F.  By.  Co.  v.  James,  101  U.  S.  545, 
10  Sup.  Ct.  621,  to  L.  Ed.  802.  Finally  when 
■  arose  in  which  the  suit  was  brought 
against  a  corporation  by  a  stockholder  as- 
serting the  control  of  the  corporation  by 
antagonistic  interests,  it  was  held  that  there 
might  be  proof  that  the  stockholder  was  not 
a  citizen  of  the  state  which  created  the 
corporation,  and  that  he  had  a  constitution- 
al right  to  bring  his  suit  in  the  federal 
court.  The  court  said:  "It  is  one  thing  to 
give  to  a  corporation  a  status,  and  another 
thing  to  take  from  a  citizen  the  right  given 


CITIZEN 


496 


CIVIL 


him  by  the  constitution."  Accordingly,  it 
was  considered  that  the  presumption  of  citi- 
zenship of  stockholders  must  give  way  to 
the  actual  fact  proved  that  the  complainant 
was  a  citizen  of  a  different  state,  and  that 
thereupon  the  jurisdiction  attached.  After 
([noting  the  phrase  above  cited  from  161  U. 
S.  545,  that  the  doctrine  as  then  settled 
"went  to  the  very  verge  of  judicial  power," 
it  was  added:  "Against  the  further  step 
urged  by  appellees  we  encounter  the  Con- 
stitution of  the  United  States."  Doctor  v. 
Harrington,  196  U.  S.  579,  25  Sup.  Ct.  355, 
49  L.  Ed.  606.  Thus  in  this  case  the  court, 
as  is  said  by  Baldwin,  C.  J.,  in  the  article 
above  cited,  "marked  the  limits  of  the 
verge,  but  in  such  a  way  as  practically  to 
overrule  many  of  their  earlier  decisions." 
The  precise  question  decided  in  the  last 
case  had  undoubtedly  been  determined  dif- 
ferently long  before,  where  citizens  of  Loui- 
siana sued  a  Mississippi  Bank  and  a  plea 
to  the  jurisdiction,  that  two  other  citizens 
of  Louisiana  were  among  the  shareholders, 
was  sustained;  Commercial  &  R.  Bank  v. 
Slocomb,  14  Pet.  (U.  S.)  60,  10  L.  Ed.  354; 
the  changed  result  is  attributed,  by  Bald- 
win, C.  J.,  to  the  fact,  not  that  the  written 
law  had  changed,  but  that  "a  new  genera- 
tion of  judges  gave  it  a  new  interpretation 
and  twisted  a  new  theory  into  an  old  shape," 
and  the  ease  with  which  this  was  done  he 
considers  as  striking  evidence  both  of  the 
strength  of  a  written  constitution  and  the 
futility  of  a  written  fiction. 

CITY.  In  England.  An  incorporated  town 
or  borough  which  is  or  has  been  the  see  of 
a  bishop.  Co.  Litt.  10S;  1  Bla.  Com.  114; 
Cowell.  There  is  said,  however,  to  be  no 
necessary  connection  between  a  city  and  a 
see.     Oxford  Diet.,  citing  Freeman. 

A  large  town  incorporated  with  certain 
privileges.  The  inhabitants  of  a  city.  The 
citizens.     Worcester,   Diet. 

Although  the  first  definition  here  given  is  sanc- 
tioned by  such  high  authority,  it  is  questionable  if 
it  is  essential  to  its  character  as  a  city,  even  in 
England,  that  it  has  been  at  any  time  a  see  ;  and  it 
certainly  retains  its  character  of  a  city  after  it  has 
lost  its  ecclesiastical  character;  1  Steph.  Com.  115; 
1  Bla.  Com.  314;  and  in  the  United  States  it  is 
clearly  unnecessary  that  it  should  ever  have  possess- 
ed this  character.  Originally,  this  word  did  not  sig- 
nify a  town,  but  a  portion  of  mankind  who  lived 
under  the  same  government — what  the  Romans  call- 
ed civitas,  and  the  Greeks  tto/uc;  whence  the  word 
politeia — civitas  seu  reiputlicas  status  et  adminis- 
tratio.  Toullier,  Dr.  Civ.  Fr.  1.  1,  t.  1,  n.  202;  Hen- 
rion  de  Pansey,  Pouvoir  Municipal,  pp.  36,  37. 

By  cities  in  the  Middle  Ages  in  Germany 
was  meant  fortified  places  in  the  enjoyment 
of  market-jurisdiction.  The  German  as  well 
as  the  French  cities  are  a  creation  of  the 
Middle  Ages;  there  was  an  organic  connec- 
tion with  the  Roman  town-system.  Schrod- 
er, Lehrbuch  des  Deutchen  Rechtsgeschichte 
58S. 

CIVIL.  In  contradistinction  to  barbarous 
or  savage,  indicates  a  state   of  society  re- 


duced to  order  and  regular  government: 
thus,  we  speak  of  civil  life,  civil  society,  civil 
government,  and  civil  liberty.  In  contra- 
distinction to  criminal,  to  indicate  the  pri- 
vate rights  and  remedies  of  men,  as  members 
of  the  community,  in  contrast  to  those  which 
are  public  and  relate  to  the  government: 
thus,  we  speak  of  civil  process  and  criminal 
process,  civil  jurisdiction  and  criminal  juris- 
diction. 

It  is  also  used  in  contradistinction  to  mili- 
tary or  ecclesiastical,  to  natural  or  foreign; 
thus,  we  speak  of  a  civil  station,  as  opposed 
to  a  military  or  an  ecclesiastical  station;  a 
civil  death,  as  opposed  to  a  natural  death ;  a 
civil  war,  as  opposed  to  a  foreign  war ; 
Story,  Const.  §  789 ;  1  Bla.  Com.  6,  125,  251 ; 
Montesquieu,  Sp.  of  Laws,  b.  1,  c.  3;  Ruth- 
erforth,  Inst.  b.  2,  c.  2;  id.  c.  3;  id.  c.  8,  p. 
359;  Heineccius,  Elem.  Jurisp.  Nat.  b.  2,  ch.  6. 

CIVIL  ACTION.  In  the  CrvrL  Law. — A 
personal  action  which  is  instituted  to  com- 
pel payment,  or  the  doing  some  other  thing 
which  is  purely  civil.  Pothier,  Introd.  Gen. 
aux  Cont.  110. 

At  Common  Law. — An  action  which  has 
for  its  object  the  recovery  of  private  or  civil 
rights  or  compensation  for  their  infraction. 
See  Action. 

CIVIL  COMMOTION.  An  insurrection  of 
the  people  for  general  purposes,  though  it 
may  not  amount  to  rebellion  where  there 
is  an  usurped  power.    2  Marsh.  793. 

In  the  printed  proposals  which  are  considered  as 
making  a  part  of  the  contract  of  insurance  against 
fire,  it  is  declared  that  the  insurance  company  will 
not  make  good  any  loss  happening  by  any  civil 
commotion. 

CIVIL   CONTEMPT.     See  Contempt. 

CIVIL  DAMAGE  ACTS.  Acts  passed  in 
many  of  the  United  States  which  provide 
an  action  for  damages  against  a  vender  of 
intoxicating  liquors,  on  behalf  of  the  wife 
or  family  of  a  person  who  has  sustained 
injuries  by  reason  of  his  intoxication.  Dice 
v.  Sherbemeau,  152  Mich.  601,  116  N.  W. 
416,  16  L.  R.  A.  (N.  S.)  765:  Bistline  v.  Ney 
Bros.,  134  la.  172,  111  N.  W.  422,  13  L.  R. 
A.  (N.  S.)  115S,  13  Ann.  Cas.  196. 

Such  an  act,  even  if  it  allows  an  action 
against  the  owner  of  the  property  where 
the  liquor  was  sold,  without  evidence  that 
he  authorized  the  sale,  is  constitutional; 
Bertholf  v.  O'Reilly,  74  N.  Y.  509,  30  Am. 
Rep.  323.  See,  also,  Bedore  v.  Newton,  54 
N.  H.  117;  Moran  v.  Goodwin,  130  Mass.  158, 
39  Am.  Rep.  443;  Wightman  v.  Devere,  33 
Wis.  570;  Stanton  v.  Simpson,  48  Vt.  62S. 
Where  the  owner  of  a  building  had  no  knowl- 
edge as  to  how  his  premises  were  used,  he  is 
nevertheless  liable  where  his  agent  rents 
it  for  the  sale  of  intoxicating  liquors;  Hall 
v.  Germain,  131  N.  Y.  536,  30  N.  E.  591. 
See  Keedy  v.  Howe,  72  111.  133.  The  act 
in  New  York  creates  a  new  right  of  action, 
viz.,  for  injury  to  the  "means  of  support;" 


CIVIL  DAMAGE  ACTS 


497 


CIVIL  LAW 


It  is  not  necessary  that  the  injury  should  be 
one  remediable  at  common  law ;  Volans  v. 
Owen,  74  N.  Y.  526,  ^0  Am.  Rep.  337.  In- 
jury to  means  of  support  is  not  necessarily 
deprivation  of  the  bare  necessities  of  life, 
but  any  substantial  subtraction  from  the 
maintenance  suitable  to  the  man's  business 
and  condition  of  life;  Herring  v.  Ervin.  -is 
111.  App.  369.  The  Indiana  act  Is  constitu- 
tional, even  though  the  liquor-seller  was  li- 
censed;  Horning  v.  Wendell,  57  lud.  171.  So 
in  Kehrig  v.  Peters,  41  Mich.  475,  2  X.  W. 
SOI.  If  the  death  of  the  husband  can  be 
traced  to  an  intervening  cause,  the  liquor- 
seller  is  not  liable;  Schmidt  v.  Mitchell,  84 
111.  195,  25  Am.  Rep.  446;  Collier  v.  Early,  54 
Ind.  559.  Intoxication  must  be  shown  to 
have  been  the  proximate  cause  of  the  injury; 
Beem  v.  Chestnut,  120  End.  390,  22  n!  E.  303. 
Damages  for  injuries  resulting  in  death 
cannot  be  recovered;  Kirchner  v.  Myers,  35 
Ohio  St.  85,  35  Am.  Rep.  598,  001;  contra, 
Boose  v.  Perkins,  9  Neb.  304,  2  X.  \Y.  71.".,  ::i 
Am.  Rep.  409;  Hayes  v.  Phelan,  4  Hun  (X. 
Y.)  733;  Mead  v.  Stratton,  87  N.  Y.  493,  -11 
Am.  Rep.  3S6;  Flynn  v.  Fogarty,  106  111.  263; 
Bedore  v.  Xewtou,  54  N.  H.  117;  Rafferty  v. 
Buckman,  46  la.  195 ;  but  see  Jackson  v. 
Brookins,  5  Hun  (X.  Y.)  530;  Davies  v.  Mc- 
Knight,  146  Pa.  610,  23  Atl.  320.  In  some 
states  exemplary  damages  can  be  recovered  ; 
Weitz  v.  Ewen,  50  la.  34;  Gilmore  v.  Math- 
ews, 67  Me.  517 ;  Bean  v.  Green,  33  Ohio  St. 
444;  contra,  Ward  v.  Thompson,  48  la.  5S8. 
The  fact  that  the  wife  had  bought  liquor 
from  the  defendant  under  compulsion,  or 
in  order  to  keep  her  husband  at  home,  does 
not  defeat  her  right;  id. 

CIVIL  DEATH.  That  change  of  state  of  a 
person  which  is  considered  in  the  law  as 
equivalent  to  death.     See  Death. 

CIVIL  LAW.  This  term  is  generally  used 
to  designate  the  Roman  jurisprudence,  jus 
civile  Romanorum. 

In  its  most  extensive  sense,  the  term  Roman  Law 
comprises  all  those  legal  rules  and  principles  which 
were  in  force  among  the  R*omans,  without  refer- 
ence to  the  time  when  they  were  adopted.  But  In 
a  more  restricted  sense  we  understand  by  it  the  law 
compiled  under  the  auspices  of  the  Emperor  Jus- 
tinian, and  which  are  still  in  force  in  many  of  the 
states  of  modern  Europe,  and  to  which  all  refer  as 
authority  or  written  reason. 

The  ancient  leges  curiatae  are  said  to  have  been 
collected  in  the  time  of  Tarquin,  the  last  of  the 
kings,  by  a  pontifex  maximus  of  the  name  of  Qexttu 
or  Publius  Papinius.  This  collection  is  known  un- 
der the  title  of  Jus  Civile  Papinianum;  its  exist- 
ing fragments  are  few,  and  those  of  an  apocryphal 
character.     Maekeldey  §  21. 

After  a  fierce  and  uninterrupted  struggle  between 
the  patricians  and  plebeians,  the  latter  extorted 
from  the  former  the  celebrated  law  of  the 
Tables,  in  the  year  300  of  Rome.  This  law,  framed 
by  the  decemvirs  and  adopted  in  the  vomit 
turiata,  acquired  great  authority,  and  constituted 
the  foundation  of  all  the  public  and  private  laws  of 
the  Romans,  subsequently,  until  the  time  of  Jus- 
tinian. It  is  called  Lex  Decemviralis.  From  this 
period  the  sources  of  the  jus  scriptum  consisted 
in  the  leges,  the  plebiscita,  the  senatus  consulta,  and 
the    constitutions    of    the    emperors,    constitutioyies 

Bouv.— 32 


principium ;  and  the  jus  non  scriptum  was  found 
partly  in  the  mores  majorum,  the  cunsuetudo,  and 
the  res  judicata,  or  auctoritaa  rerum  perpetua 
iter  judicatorum.  The  edicts  of  the  magistrates, 
or  jus  honorarium,  also  formed  a  part  of  the  un- 
written law  ;  but  by  far  the  most  prolific  source  of 
the  jus  non  scriptum  consisted  in  the  opinions  and 
writings  of  the  lawyers — responsa  J 

The  few  fragments  of  the  twelve  tables  that  have 
come  down  to  us  are  stamped  with  the  harsh  fea- 
tures of  their  aristocratic  origin.  But  the  jus  hono- 
rarium established  by  the  praetors  and  other  magis- 
trates, as  well  as  that  part  of  the  customary  law 
which  was  built  up  by  the  opinions  and  writings  of 
the  prudentes,  are  founded  essentially  on  principles 
of  natural   justice. 

Many  collections  of  the  imperial  constitutions  had 
been  made  before  the  advent  of  Justinian  to  the 
throne.  He  was  the  first  after  Theodosius  who 
ordered  a  new  compilation  to  be  made.  For  this 
purpose  he  appointed  a  committee  of  ten  lawyers, 
with  very  extensive  powers;  at  their  head  was  the 
ex-qucsstor  sacri  palatii,  Johannes,  and  among  them 
the  afterwards  well-known  Tribonian.  His  instruc- 
tions were  to  select,  in  the  most  laconic  form,  all 
that  was  still  of  value  in  the  existing  collections, 
as  well  as  in  the  later  constitutions  ;  to  omit  all 
obsolete  matter ;  to  introduce  such  alterations  as 
were  required  by  the  times ;  and  to  divide  the 
whole  into  appropriate  titles.  Within  fourteen 
months  the  committee  had  finished  their  labors. 
Justinian  confirmed  this  new  code,  which  consisted 
of  twelve  books,  by  a  special  ordinance,  and  pro- 
hibited the  use  of  the  older  collections  of  rescripts 
and  edicts.  This  code  of  Justinian,  which  is  now 
called  Codex  vetus,  has  been  entirely  lost. 

After  the  completion  of  this  code,  Justinian,  in 
530,  ordered  Tribonian,  who  was  now  invested  with 
the  dignity  of  quaestor  sacri  palatii,  and  sixteen 
other  jurists,  to  select  all  the  most  valuable  pas- 
sages from  the  writings  of  the  old  jurists  which 
were  regarded  as  authoritative,  and  to  arrange 
them,  according  to  their  subjects,  under  suitable 
heads.  These  commissioners  also  enjoyed  very  ex- 
tensive powers;  they  had  the  privilege,  at  their  dis- 
cretion, to  abbreviate,  to  add,  and  to  make  such 
other  alterations  as  they  might  consider  adapted  to 
the  times ;  and  they  were  especially  ordered  to  re- 
move all  the  contradictions  of  the  old  jurists,  to 
avoid  all  repetitions,  and  to  omit  all  that  had  be- 
come entirely  obsolete.  The  natural  consequence  of 
this  was,  that  the  extracts  did  not  always  truly  rep- 
resent the  originals,  but  were  often  interpolated  and 
amended  in  conformity  with  the  existing  law.  Al- 
terations, modifications,  and  additions  of  this  kind 
are  now  usually  called  cmblemata  Triboniani.  This 
great  work  is  called  the  Pandects,  or  Digest,  and 
was  completed  by  the  commissioners  in  three  years. 
Within  that  short  space  of  time,  they  had  extracted 
from  the  writings  of  no  less  than  thirty-nine  jurists 
all  that  they  considered  valuable  for  the  purpose  of 
this  compilation.  It  was  divided  into  fifty  books, 
and  was  entitled  Digesta  sive  Pandccta;  juris  enu- 
cleati  ex  ornni  vetere  jure  collecti.  The  Pandects 
were  published  on  the  16th  of  December,  533,  but 
they  did  not  go  into  operation  until  the  30th  of  that 
month.  In  confirming  the  Pandects,  Justinian  pro- 
hibited further  reference  to  the  old  jurists  ;  and,  in 
order  to  prevent  legal  science  from  becoming  again 
so  diffuse,  indefinite,  and  uncertain  as  it  had  pre- 
viously been,  he  forbade  the  writing  of  commenta- 
ries upon  the  new  compilation,  and  permitted  only 
the  making  of  literal  translations  into  Greek. 

In  preparing  the  Pandects,  the  compilers  met 
very  frequently  with  controversies  in  the  writings 
of  the  jurists.  Such  questions,  to  the  number  of 
thirty-four,  had  been  already  determined  by  Jus- 
tinian before  the  commencement  of  the  collection 
of  the  Pandects,  cud  before  its  completion  the  de- 
cisions of  this  kind  were  increased  to  fifty,  and  were 
known  as  the  fifty  decisions  of  Justinian.  These  de- 
cisions were  at  first  collected  separately,  and  after- 
ward embodied   In  the  new  code. 

For  the  purpose  of  facilitating  the  study  Of  the 
law,  Justinian  ordered  Tribonian,  with  the  assist- 
ance of  Theophilus  and  Dorotheus,  to  prepare  a 
brief  system   of   law   under   the   title  of   Institutes. 


CIVIL  LAW 


498 


CIVIL  LAW 


which  should  contain  the  elements  of  legal  science. 
This  work  was  founded  on,  and  to  a  great  extent 
copied  from,  the  commentaries  of  Gaius,  which,  aft- 
er having  been  lost  for  many  centuries,  were  discov- 
ered by  the  great  historian  Niebuhr,  in  1816,  in  a 
palimpsest,  or  re-written  manuscript,  of  some  of  the 
homilies  of  St.  Jerome,  in  the  Chapter  Library  of 
Verona.  What  had  become  obsolete  in  the  com- 
mentaries was  omitted  in  the  Institutes,  and  ref- 
erences were  made  to  the  new  constitutions  of  Jus- 
tinian so  far  as  they  had  been  issued  at  the  time. 
Justinian  published  his  Institutes  on  the  21st  No- 
vember, 533,  and  they  obtained  the  force  of  law  at 
the  same  time  with  the  Pandects,  December  30,  533. 
Theophilus,  oue  of  the  editors,  delivered  lectures 
on  the  Institutes  in  the  Greek  language,  and  from 
these  lectures  originated  the  valuable  commentaries 
known  under  the  Latin  title,  Theophili  Antecessorls 
Paraphrasis  Gneca  Institutionum  Cassarearum.  The 
Institutes  consist  of  four  books,  each  of  which  con- 
tains several  titles. 

After  the  publication  of  the  Pandects  and  the 
Institutes,  Justinian  ordered  a  revision  of  the  Code, 
which  had  been  promulgated  in  the  year  529.  This 
became  necessary  on  account  of  the  great  number 
of  new  constitutions  which  he  had  issued,  and  of  the 
fifty  decisions  not  included  in  the  Old  Code,  and  by 
which  the  law  had  been  altered,  amended,  or  modi- 
fied. He  therefore  directed  Tribonian,  with  the  as- 
sistance of  Dorotheus,  Menna,  Constantinus,  and 
Johannes,  to  revise  the  Old  Code  and  to  incorporate 
the  new  constitutions  into  it.  This  revision  was 
completed  in  the  same  year ;  and  the  new  edition  of 
the  Code,  Codex  repetitce  preelections,  was  con- 
firmed on  the  16th  November,  534,  and  the  Old  Code 
abolished.  The  Code  contains  twelve  books  sub- 
divided into   appropriate   titles. 

During  the  interval  between  the  publication  of 
the  Codex  repetitce  prcelectionis,  in  535,  to  the  end 
of  his  reign,  in  565,  Justinian  issued,  at  different 
times,  a  great  number  of  new  constitutions,  by 
which  the  law  on  many  subjects  was  entirely  chang- 
ed. The  greater  part  of  these  constitutions  were 
written  in  Greek,  in  obscure  and  pompous  language, 
and  published  under  the  name  of  Novella  Constitu- 
tiones,  which  are  known  to  us  as  the  Novels  of  Jus- 
tinian. Soon  after  his  death,  a  collection  of  one 
hundred  and  sixty-eight  Novels  was  made,  one  hun- 
dred and  fifty-four  of  which  had  been  issued  by  Jus- 
tinian, and  the  others  by  his  successors. 

Justinian's  collections  were,  in  ancient  times,  al- 
ways copied  separately,  and  afterwards  they  were 
printed  in  the  same  way.  When  taken  together, 
they  were  indeed  called,  at  an  early  period,  the  Cor- 
pus Juris  Civilis;  but  this  was  not  introduced  as 
the  regular  title  comprehending  the  wtiole  body; 
each  volume  had  its  own  title  until  Dionysius  Goth- 
ofredus  gave  this  general  title  in  the  second  edition 
of  his  glossed  Corpus  Juris  Civilis,  in  1604.  Since 
that  time  this  title  has  been  used  in  all  the  editions 
of  Justinian's  collections. 

It  is  generally  believed  that  the  laws  of  Justinian 
were  entirely  lost  and  forgotten  in  the  Western 
Empire  from  the  middle  of  the  eighth  century  until 
the  alleged  discovery  of  a  copy  of  the  Pandects  at 
the  storming  and  pillage  of  Amalfi,  in  1135.  This  is 
one  of  those  popular  errors  which  had  been  handed 
down  from  generation  to  generation  without  ques- 
tion or  inquiry,  but  which  has  now  been  completely 
exploded  by  the  learned  discussion,  supported  by 
conclusive  evidence,  of  Savigny,  in  his  History  of 
the  Roman  Law  during  the  Middle  Ages.  Indeed, 
several  years  before  the  sack  of  Amalfi  the  cele- 
brated Irnerius  delivered  lectures  on  the  Pandects 
in  the  University  of  Bologna.  The  pretended  dis- 
covery of  a  copy  of  the  Digest  at  Amalfi,  and  its  be- 
ing given  by  Lothaire  II.  to  his  allies  the  Pisans  as 
a  reward  for  their  services,  is  an  absurd  fable.  No 
doubt,  during  the  five  or  six  centuries  when  the 
human  intellect  was,  in  a  complete  state  of  torpor, 
the  study  of  the  Roman  Law,  like  that  of  every 
other  branch  of  knowledge,  was  neglected;  but  on 
the  first  dawn  of  the  revival  of  learning  the  science 
of  Roman  jurisprudence  was  one  of  the  first  to  at- 
tract the  attention  of  mankind;  and  it  was  taught 
with  such  brilliant  success  as  to  immortalize  the 
name  of  Irnerius,   its  great  professor. 


Even  at  the  present  time  the  Roman  Law,  as  a 
complete  system,  exercises  dominion  in  every  state 
in  Europe  except  England  (though  not  all  of  Conti- 
nental law  comes  from  it.  Poll.  &  Maitl.  xxxvi).  The 
countrymen  of  Lycurgus  and  Solon  are  governed  by 
it,  and  in  the  vast  empire  of  Russia  it  furnishes  the 
rule  of  civil  conduct.  In  America,  it  is  the  founda- 
tion of  the  law  of  Louisiana,  Canada,  Mexico,  and 
all  the  republics  of  South  America.  As  to  its  influ- 
ence on  the  common  law  of  England  there  is  great 
diversity  of  opinion.  The  subject  is  too  large  to  be 
considered  here.  It  has  recently  been  treated  in 
detail  by  Holdsworth  (Hist,  of  Engl.  Law). 

See  Codb;  Digests;  Institutes;  Novels; 
Basilica. 

CIVIL  LIST.  An  annual  sum  granted  by 
the  English  parliament  at  the  commencement 
of  each  reign,  for  the  expenses  of  the  royal 
household  and  establishment  as  distinguished 
from  the  general  exigencies  of  the  state. 
It  is  the  provision  for  the  crown  made  out 
of  the  taxes  in  lieu  of  its  proper  patrimony 
and  in  consideration  of  the  assignment  of 
that  patrimony  to  the  public  use.  Wharton, 
Diet. 

CIVIL  OBLIGATION.  One  which  binds 
in  'law,  and  which  may  be  enforced  in  a 
court  of  justice.     Pothier,  Obi.  173,  191. 

CIVIL  OFFICER.  Any  officer  of  the  Unit- 
ed States  who  holds  his  appointment  under 
the  national  government,  whether  his  du- 
ties are  executive  or  judicial,  in  the  highest 
or  the  lowest  departments  of  the  govern- 
ment, with  the  exception  of  officers  of  the 
army  and  navy.  Rawle,  Const.  213;  1  Story, 
Const.  §  790. 

The  term  occurs  in  the  constitution  of  the  United 
States,  art.  2,  sec.  4,  which  provides  that  the  presi- 
dent, vice-president,  and  civil  officers  of  the  United 
States  shall  be  removed  from  office  on  impeach- 
ment for,  and  conviction  of,  treason,  bribery,  or 
other  high  crimes  and  misdemeanors.  It  has  been 
decided  that  a  senator  of  the  United  States  is  not  a 
civil  officer  within  the  meaning  of  this  clause  of  the 
constitution.  Senate  Journals,  10th  January,  1799; 
4  Tucker,  Bla.  Com.  App.  57,  58 ;  Rawle,  Const.  213  ; 
Sergeant,  Const.  Law  376 ;    Story,  Const.  §  791. 

CIVIL  REMEDY.  The  remedy  which  the 
party  injured  by  the  commission  of  a  tor- 
tious act  has  by  action  against  the  party 
committing  it,  as  distinguished  from  the  pro- 
ceeding by  indictment,  by  which  the  wrong- 
doer is  made  to  expiate  the  injury  done  to 
society. 

In  cases  of  treason,  felony,  and  some  oth- 
er of  the  graver  offences,  this  private  reme- 
dy is  suspended,  on  grounds  of  public  policy, 
until  after  the  prosecution  of  the  wrong- 
doer for  the  public  wrong;  4  Bla.  Com.  363; 
12  East  409;  Bell's  Adm'r  v.  Troy,  35  Ala. 
1S4.  The  law  is  otherwise  in  Massachusetts, 
except,  perhaps,  in  case  of  felonies  punish- 
able with  death;  Boardman  v.  Gore,  15  Mass. 
333;  North  Carolina,  Smith  v.  Weaver,  1  N. 
C.  141;  Ohio,  Story  v.  Hammond,  4  Ohio 
377;  South  Carolina,  Robinson  v.  Culp,  3 
Brev.  302;  Mississippi,  Newell  v.  Cowan,  30 
Miss.  492;  Tennessee,  Ballew  v.  Alexander, 
6  Humph.  433;  Maine,  Belknap  v.  Milliken, 
23  Me.  381;  and  Virginia.  At  common  law, 
in    cases   of   homicide   the    civil   remedy    is 


CIVIL  REMIiDY 


499 


CIVIL  RIGHTS 


merged  in  the  public  punishment;  1  Chit.  Pr. 
10.    See  Injuries;  Merger;  Bish.  Cr.  L.  §  207. 

CIVIL  RIGHTS.  A  term  applied  to  cer- 
tain rights  secured  to  citizens  of  the  United 
States  by  the  13th  and  llth  Amendments  to 
the  constitution,  and  by  various  acts  of 
congress  made  in  pursuance  thereof. 

The  act  of  April  9.  1866  ("ordinarily  called 
the  'Civil  Rights  Bill'  ;"  Bradley,  J.,  in  U.  S. 
v.  Stanley,  109  U.  S.  3,  16,  3  Sup.  Ct.  18,  27 
L.  Ed.  835),  provided  that  all  persons  born 
in  the  United  States,  and  not  subject  to  any 
foreign  power,  excluding  Indians  not  taxed, 
are  citizens  of  the  United  Slates;  that  sueh 
citizens  of  every  race  and  color  shall  have 
the  same  right  in  every  state  and  territory 
to  make  and  enforce  contracts,  to  sue,  be 
parties,  give  evidence,  etc.,  and  to  the  full 
and  equal  benefit  of  all  laws  and  proceed- 
ings for  the  security  of  person  and  property, 
as  is  enjoyed  by  white  citizens,  and  be  sub- 
ject to  like  punishment,  etc.,  and  none  other, 
This  act  was  said  by  Swayne,  J.,  to  be  not 
a  penal  statute  but  a  remedial  one  to  be 
construed  liberally;  U.  S.  v.  Rhodes,  1  Abb. 
U.  S.  28,  Fed.  Cas.  No.  16,151. 

This  legislation  was  substantially  replaced 
by  the  14th  Amendment  which  was  broader 
in  its  scope,  manifestly  intended  to  vindi- 
cate those  rights  against  individual  aggres- 
sion; Kentucky  v.  Powers,  201  U.  S.  1,  20 
Sup.  Ct.  3S7,  50  L.  Ed.  633,  5  Ann.  Cas.  692. 
This  amendment  was  finally  promulgated  as 
adopted  in  July,  1868  (see  Fourteenth 
Amendment)  and  thereafter  Congress  enact- 
ed several  laws  intended  to  enforce  its  pro- 
visions. The  first  was  the  act  of  May  31, 
1S70.  known  as  the  Enforcement  Act  (sup- 
plemented by  an  amending  act  of  February 
28,  1871).  The  purpose  was  to  protect  negro 
voters  by  requiring  in  sections  1  and  2  that 
all  citizens  should  be  accorded  equal  facili- 
ties without  distinction  of  race  or  color; 
in  sections  3,  4  and  5  for  the  punishment 
through  federal  courts  of  persons  who  vio- 
lated the  act ;  and  in  section  6  for  punish- 
ment in  like  manner  of  conspiracies  to  de- 
feat the  elective  franchise.  There  was  also 
provided  an  elaborate  scheme  of  supervision 
of  all  elections,  which  included  members 
of  Congress,  through  the  federal  courts, 
which  became  R.  S.  §§  2011,  2012,  2016,  2017, 
2021,  2022,  5515  and  5522.  The  power  of 
Congress  to  impose  this  system  of  super- 
vision was  upheld  in  Ex  parte  Siebold,  100 
U.  S.  371,  25  L.  Ed.  717;  U.  S.  v.  Gale,  109 
U.  S.  65,  3  Sup.  Ct.  1,  27  L.  Ed.  857;  and 
sections  3  and  4  of  the  Enforcement  Act 
were  held  unconstitutional ;  U.  S.  v.  Reese, 
92  U.  S.  214,  23  L.  Ed.  503:  while  section  6 
was,  in  effect,  held  unenforceable,  as  not 
providing  for  the  punishment  of  any  act 
punishable  under  the  constitution  and  laws 
of  the  United  States;  U.  S.  v.  Cruikshank,  92 
U.  S.  542,  23  L.  Ed.  5S8. 

The  next  act  in  the  series  was  that  of 
April  °J[),  1871,  known  as  the  "Ku  Klux  Act." 
It   was   an   effort  to  create  both   civil  and 


criminal  liability   for  the  action  of  individ- 
uals against  individuals;  and  re  au- 
thority  to  the  President  I                     the  army 
and  navy   in    cases  of  d 
within  a  state  and   to  suspend   \-. 

ind  disqualified  for  jury 
ice  all  persons  Involved,    it  also  conti 
remarkable   section    (<»)    making 
liable   who   could,   by    reasonable 
have  prevented   any  oth- 
Driving    individuals   of   the   i  pial    pro! 
of  the  laws,  and  failed  to  d  i  bo.     'I  i 
was   practically  rendered  ineffective  by  the 
construction    given    by    the    Supreme    C 
to  the  power  of  I  to  enforce  the  14th 

Amendment  by  legislation.  Cases  in  which 
various  provisions  of  it  were  held  to  be  un- 
enforceable in  the  cases  in  which  it  was 
resorted  to  are:  U.  S.  v.  Harris. 
029,  1  Sup.  Ct.  001,  27  L.  Ed.  290;  Carter  v. 
Greenhow,  114  U.  S.  317,  5  Sup.  Ct.  928,  962, 

29  L.  Ed.  201';  Bowman  v.  Ry.  Co.,  115  0.  B. 
611,  6  Sup.  Ct  192,  29  L.  Ed.  502;  Baldwin 
v.  Franks,  120  U.  S.  078,  7  Sup.  Ct.  65€ 

30  L.   Ed.  760;   Holt  v.  Mfg.   Co.,  170  D.   8. 
68,  20  Sup.  Ct.  272,  44  L.  Ed.  374;  Qi 
Harris,  1S9  U.  S.  475,  23  Sup.  Ct.  039,  47  L. 
Ed.  909. 

The  last  act  of  the  series  was  that  of 
March  1,  1S75,  which  was  pre-eminently 
known  as  the   "Civil   Ri.  and    con- 

sisted of  five  sections.  Section  1  provided 
that  all  persons  within  the  jurisdiction  of 
the  United  States  should  be  entitled  to  the 
full  and  equal  enjoyment  of  the  accommo- 
dations, etc.,  of  inns,  public  conveyam 
land  or  water,  theatres,  and  other  places  of 
public  amusement;  subject  only  to  the  condi- 
tions and  limitations  established  by  law  and 
applicable  alike  to  all  citizens  of  whatever 
race  or  color,  regardless  of  any  previous  con- 
dition of  servitude.  Section  2  provided  for 
the  punishment  of  any  person  who  should 
violate  the  foregoing  section,  both  criminal- 
ly and  by  a  suit  for  a  penalty.  Section  3 
gave  jurisdiction  to  the  federal  courts  ex- 
clusively of  all  offenses  against  the  act,  and 
of  suits  for  a  penalty.  Section  4  provided 
that  no  person  should  be  excluded  from 
service  as  grand  or  petit  juror  in  any  court 
of  the  United  States  or  any  state,  on  ac- 
count of  race,  color  or  previous  condition 
of  servitude.  Section  5  gave  to  th< 
preme  Court  a  right  of  review  of  all  cases 
arising   under  the   act. 

Section  4  was  declared  constitutional  in 
Ex  parte  Virginia,  100  D.  S.  339,  25  1..  Ed. 
076.  Sections  1  and  'J  were  held  unconstitu- 
tional and  void  in  the  Civil  Bights  I 
109  U.  S.  3,  3  Sup.  Ct.  IS,  27  L.  Ed.  835,  as 
not  being  authorized  by  either  the  13th  or 
14th  Amendments.  And  having  been  so  de- 
clared unconstitutional,  they  were  not  sepa- 
rable as  to  their  operation  in  such  places  as 
are  under  the  exclusive  jurisdiction  of  the 
national  government  and  the  statute  was 
therefore  unconstitutional  in  its  entirety; 
Butts   v.   Merchants   &   Miners  Transp.   Co., 


CIVIL  RIGHTS 


500 


CIVIL  RIGHTS 


230  U.  S.  126,  33  Sup.  Ct  964,  57  L.  Ed.  1422; 
The  Trade  Mark  Cases,  100  U.  S.  82,  25  L. 
Ed.  550. 

The  13th  Amendment  denounces  a  status 
or  condition  irrespective  of  the  manner  or 
authority  hy  which  it  is  created.  The  pro- 
hibitions of  the  14th  and  15th  Amendments 
are  largely  upon  the  acts  of  the  states ;  but 
the  13th  Amendment  names  no  party  or  au- 
thority, but  simply  forbids  slavery  and  in- 
voluntary servitude  and  grants  to  Congress 
power  to  enforce  this  prohibition  by  ap- 
propriate legislation;  Clj^att  v.  U.  S.,  197  U. 
S.  207,  25  Sup.  Ct.  429,  49  L.  Ed.  726.  Such 
legislation  may  be  primary  and  direct  in 
its  character ;   id. 

In  the  Civil  Rights  Cases  the  court  held 
that  although  the  constitution  and  statutes 
of  a  state  may  not  be  repugnant  to  the  13th 
Amendment,  Congress,  by  legislation  of  a  di- 
rect and  primary  character,  may,  in  order  to 
enforce  the  amendment,  reach  and  punish 
individuals  whose  acts  are  in  hostility  to 
rights  and  privileges  derived  from  and  se- 
cured by  or  dependent  upon  that  amend- 
ment ;  Clyatt  v.  U.  S.,  197  U.  S.  207,  25  Sup. 
Ct.  429,  49  L.  Ed.  726.  The  power,  duty  and 
responsibility  to  enforce  the  rights  of  citi- 
zens under  any  of  the  constitutional  amend- 
ments rests  with  the  state  and  not  with  the 
United  States  government ;  Neal  v.  Delaware, 
103  U.  S.  370,  26  L.  Ed.  567.  But  in  Hodges 
v.  U.  S.,  203  U.  S.  1,  27  Sup.  Ct  6,  51  L.  Ed. 
65,  the  13th  Amendment  was  held  not  to 
empower  Congress  to  protect  against  individ- 
ual interference  (where  a  conspiracy  was 
alleged  to  exclude  negroes  from  making 
contracts  to  labor). 

Prohibiting  intermarriage  between  white 
persons  and  negroes  is  not  interference  with 
civil  rights;  State  v.  Gibson,  36  Ind.  389,  10 
Am.  Rep.  42;  Plessy  v.  Ferguson,  163  U.  S. 
537,  16  Sup.  Ct.  113S,  41  L.  Ed.  256;  nor  re- 
quiring separate  schools;  State  v.  McCann, 
21  Ohio  St.  210;  Ward  v.  Flood,  48  Cal.  36, 
17  Am.  Rep.  405;  People  v.  Gallagher,  93 
N.  T.  438,  45  Am.  Rep.  232;  nor  requiring 
separate  accommodations  on  railroad  trains 
within  the  state;  Louisville,  N.  O.  &  T.  Ry. 
Co.  v.  State,  66  Miss.  662,  6  South.  203,  5 
L.  R.  A.  132,  14  Am.  St.  Rep.  599 ;  id.,  133  U. 
S.  587,  10  Sup.  Ct.  34S,  33  L.  Ed.  784 ;  Plessy 
v.  Ferguson,  163  U.  S.  537,  16  Sup.  Ct.  1138, 
41  L.  Ed.  256 ;  nor  is  the  refusal  of  an  inn- 
keeper or  keeper  of  a  place  of  public  amuse- 
ment or  proprietor  of  a  public  conveyance 
to  accept  certain  classes  of  patrons  such  an 
interference  with  the  civil  rights  of  such 
excluded  persons  as  to  call  for  their  con- 
stitutional protection;  U.  S.  v.  Stanley,  109 
U.  S.  3,  3  Sup.  Ct.  18,  27  L.  Ed.  S35;  Miller  v. 
Texas.  153  U.  S.  537.  14  Sup.  Ct.  874,  38  L. 
Ed.  812;  nor  are  civil  rights  denied  to  a 
negro  because  the  grand  jury  which  indicted 
him  for  murder  was  purposely  composed 
of  white  men;  Gibson  v.  Mississippi,  162  U. 
S.  565,  16  Sup.  Ct.  904,  40  L.  Ed.  1075; 
Smith  v.  Mississippi,  162  U.  S.  592,  16  Sup. 


Ct.  900,  40  L.  Ed.  10S2.  But  see  Rogers  v. 
Alabama,  192  U.  S.  226,  24  Sup.  Ct.  257,  48 
L.  Ed.  417,  where  such  discrimination  on 
account  of  race  was  held  a  denial  of  rights 
under  the  14th  Amendment,  the  objection 
having  been  taken  in  the  state  court  by  mo- 
tion to  quash  the  indictment. 

Congressional  inaction  is  equivalent  to  a 
declaration  that  a  carrier  may  by  its  regu- 
lations separate  white  and  negro  interstate 
passengers;  Chiles  v.  Ry.  Co.,  218  U.  S.  71, 
30  Sup.  Ct  667,  54  L.  Ed.  936,  20  Ann.  Cas. 
9S0. 

Within  the  meaning  of  Civil  Rights  Acts, 
federal  or  state,  a  barber  shop  is  not  a  place 
of  public  accommodation;  Faulkner  v.  Solaz- 
zi,  79  Conn.  541,  65  Atl.  947,  9  L.  R.  A.  (N. 
S.)  601,  9  Ann.  Cas.  67;  nor  a  bootblack 
stand;  Burks  v.  Bosso,  180  N.  Y.  341,  73  N. 
E.  58,  105  Am.  St.  Rep.  762 ;  nor  a  drug  store 
containing  a  soda  fountain;  Cecil  v.  Green, 
161  111.  265,  43  N.  E.  1105,  32  L.  R.  A.  566 ; 
nor  a  saloon ;  Kellar  v.  Koerber,  61  Ohio  St. 
3S8,  55  N.  E.  1002;  Rhone  v.  Loomis,  74 
Minn.  200,  77  N.  W.  31,  changed  by  statute 
Gen.  St.  Minn.  1913,  §  6082;  nor  a  billiard 
room;  Com.  v.  Sylvester,  13  Allen  (Mass.) 
247;  but  a  barber  shop  cannot  discriminate 
against  a  negro;  Messenger  v.  State,  25  Neb. 
674,  41  N.  W.  638.  A  skating  rink  has  been 
held  a  place  of  amusement  within  such  a 
state  law;  People  v.  King,  110  N.  Y.  418,  18 
N.  E.  245,  1  L.  R.  A.  293,  6  Am.  St.  Rep. 
389;  otherwise  as  to  one  carried  on  by  the 
owner  of  the  building  without  state  or  mu- 
nicipal license;  Bowlin  v.  Lyon,  67  la.  536,  25 
N.  W.  766,  56  Am.  Rep.  355.  A  race  meeting 
is  not;  Grannan  v.  Racing  Ass'n,  153  N.  Y. 
449,  47  N.  E.  896;  but  a  bowling  alley  is; 
Johnson  v.  Pop  Corn  Co.,  24  Ohio  Cir.  Ct  R. 
135. 

The  Civil  Rights  Act  is  in  derogation  of 
the  common  law  and  must  be  strictly  con- 
strued ;  Grace  v.  Moseley,  112  111.  App.  100 ; 
and  the  provision  that  any  "person"  who 
violates  its  provisions  shall  be  amenable 
thereto  is  not  restricted  to  natural  persons, 
but  includes  corporations ;  Johnson  v.  Pop 
Corn  Co.,  24  Ohio  Cir.  Ct.  135. 

A  person  operating  a  place  of  public  re- 
sort, who  claims  the  right  to  exclude  per- 
sons indicated  by  conduct,  dress,  or  de- 
meanor to  be  members  of  a  disreputable 
class,  is  liable  for  a  mistake  made  in  the  ex- 
ercise of  that  right;  Davis  v.  Power  Co.,  35 
Wash.  203,  77  Pac.  209,  66  L.  R.  A.  802. 

U.  S.  R.  S.  §  641,  U.  S.  Comp.  Stat.  1901, 
pp.  520,  521,  authorizes  the  removal  of  a 
criminal  prosecution  from  a  state  to  a 
federal  court,  wherever  the  accused  is  de- 
nied or  cannot  enforce  in  the  state  courts 
any  right  secured  to  him  by  any  law  provid- 
ing for  equal  civil  rights  of  citizeus  of  the 
United  States  or  of  all  persons  within  the 
jurisdiction.  But  the  denial  in  summoning 
or  impaneling  jurors  of  any  equal  civil  right 
secured  by  the  federal  constitution  or  laws 
does  not  unless  authorized  by  the  state  con- 


CIVIL  KIGIITS 


501 


CIVIL1TER  MORTUUS 


stitution  or  laws  as  interpreted  by  its  high- 
est courts,  give  a  right  to  such  removal; 
Kentucky  v.  Powers,  201  U.  S.  1.  26  Sup. 
Ct.  3S7,  50  L.  Ed.  633,  5  Ann.  Cms.  692,  where 
there  was  a  deliberate  exclusion  of  Republi- 
cans from  a  jury  selected  to  try  the  accused 
for  the  murder  of  a  Democrat  In  that 
case  it  was  held  that,  while  the  decisions  of 
the  United  stares  supreme  Court  constru- 
ing this  section  had  reference  to  discrimina- 
tion against  negroes  because  of  th<  Lr  race, 
the  decisions  were  not  intended  to  confine 
the  operation  of  that  section  or  of  the  14th 
Amendment  to  negroes  alone,  but  the  rules 
announced  apply  equally  where  discrimina- 
tion  exists  as  to  the  white  race;   id. 

Section  641,  U.  S.  R.  S.,  was  repealed  by 
section  297  of  the  Judicial  Code  of  March 
3,  1911,  and  is  re-enacted  in  the  same  words 
(except  the  substitution  of  district  court 
for  circuit  court)  in  section  31  of  that  code. 

See  Equal  Protection  of  the  Law;  Privi- 
leges and  Immunities;  Fourteenth  Amend- 
ment; Due  Process  of  Law;  Removal  of 
Causes. 

CIVIL  SERVICE.  The  Civil  Service  Act 
of  Congress,  Jan,  16,  1SS3,  does  not  delegate 
legislative  power  to  the  President  and  Civil 
Service  Commissioners;  Butler  v.  White,  83 
Fed.  578.  Under  it  neither  the  Civil  Serv- 
ice Commission  nor  the  President,  nor  both 
combined,  can  make  any  regulations  having 
the  effect  of  law;  nor  will  courts  of  equity 
enforce  them.  The  President  can  euforce 
such  regulations  by  the  exercise  of  the  power 
of  removal,  and  if  he  does  not  do  so,  courts 
of  equity  will  not  interfere;  Flemming  v. 
Stalil,  83  Fed.  940;  nor  will  it  enjoin  the  re- 
moval of  government  officers ;  White  v.  Ber- 
ry, 171  U.  S.  36G,  18  Sup.  Ct  917,  43  L.  Ed. 
199;  Morgan  v.  Nunn,  84  Fed,  551;  Jaedicke 
v.  U.  S.,  85  Fed.  373,  29  C.  C.  A.  199;  though 
it  may  he  unjustly  or  improperly  made;  nor 
decide  the  right  of  a  party  to  remain  in  of- 
fice*; Marshall  v.  Board  of  Managers,  201 
111.  9,  66  N.  E.  314.  The  power  of  removal 
is  incident  to  the  power  of  appointment; 
Flemming  v.  Stahl,  83  Fed.  940.  A  provi- 
sion in  a  civil  service  law  for  the  removal  of 
one  who  is  a  veteran  volunteer  fireman  only 
after  a  hearing,  which  is  not  required  in 
the  case  of  one  not  a  veteran,  does  not 
contravene  the  14th  Amendment;  Peo 
Folks.  S9  App.  Div.  171,  85  N.  Y.  Supp.  1100. 
See  Officer. 

CIVILIAN.    A    doctor,    professor,    or    stu- 
dent of  the  civil  law. 

CI VI LITER.     Civilly:      opposed    to    crimi- 
naliter,  or  criminally. 

When  a  person  does  an  unlawful  act  Injurious  to 
another,  whether  with  or  without  an  intention  to 
commit  a  tort,  he  is  responsible  civilitcr.  In  order 
to  make  him  liable  crimi/ialiter,  he  must  have  in- 
tended to  do  the  wrong;  for  it  is  a  maxim,  actus 
non  facit  reum  nisi  mens  sit  rea.    2  East  104. 

CIVILITER  MORTUUS.    Civilly  dead.    In 
a  state  of  civil  death. 


In  New  York  one  sentenced  to  life  impris- 
onment in  the  state  prison  is  civilitcr  //ior- 
tuua;  Troup  v.  Wood,  4  Johns.  Ch.  (N.  Y.) 
228;  Platner  v.  Sherwood,  G  Johns.  Ch.  (N. 
Y.i    lis. 

CI  VITAS.     A    term    in    the    A: 

land  i I .>■  commonly  applied  to  Wore 

Canterbury  and  other  such  places,  which 
are  both  bishop's  sees  and  the  head  ] 
of  large  districts.  Maitland.  Domesday  and 
Beyond  183.  See  IT  L.  Q.  EL  274  It  was 
applied  by  the  Romans  to  the  independent 
tribes  or  states  of  Gaul,  and  then  to  the 
chief  towns  of  those  tribes.  Oxford  Diet 
s.  v.  City. 

See  City. 

CLAIM.  A  challenge  of  the  ownership  of 
a  thing  which  is  wrongfully  withheld  from 
the  possession  of  the  claimant.  Plowd.  359. 
See  Cummings  v.  Lynn,  1  Dall.  (U.  S.)  444, 
1  L.  Ed.  215;  Willing  v.  Peters,  12  S.  &  R. 
(Pa.)  177. 

In  a  popular  sense,  claim  is  a  right  to 
claim  ;  a  just  title  to  something  in  the  pos- 
session or  at  the  disposal  of  another.  Steele 
v.  State,  159  Ala.  9,  48  South.  673. 

The  owner  of  property  proceeded  against  in  ad- 
miralty by  a  suit  in  rem  must  present  a  claim  to 
such  property,  verified  by  oath  or  affirmation,  stat- 
ing that  the  claimant  by  whom  or  on  whose  behalf 
the  claim  is  made,  and  no  other  person,  is  the  true 
and  bona  fide  owner  thereof,  as  a  necessary  pre- 
liminary to  his  making  defence;  2  Conkl.  Adm.  201- 
210. 

A  demand  entered  of  record  of  a  mechanic 
or  material  man  for  work  done  or  material 
furnished  in  the  erection  of  a  building,  in 
Pennsylvania  and  some  other  states. 

The  assertion  of  a  liability  to  the  party 
making  it  to  do  some  service  or  pay  a  sum 
of  money.  See  Prigg  v.  Pennsylvania,  10 
Pet   (U.  S.)    539,  10  L.  Ed.  1000. 

The  possession  of  a  settler  upon  the  wild 
lands  of  the  government  of  the  United 
States;  the  lands  which  such  a  settler  holds 
possession  of.  The  land  must  be  so  marked 
out  as  to  distinguish  it  from  adjacent  lands; 
Sargeant  v.  Kellogg.  5  Gilman  (111.)  27a 
Such  claims  are  considered  as  personalty  in 
the  administration  of  decedents'  estates; 
Stewart  v.  Chadwick,  8  la.  463;  are  proper 
subjects  Of  sale  and  transfer;  Hill  v.  Smith, 
Morris  (la.'  70;  Freeman  v.  Holliday,  Mor- 
ris (la.)  SO;  Wilson  v.  Webster,  Morris 
(la.)  312,  41  Am.  Dec  230;  Stewart  v.  I 
wick,  8  la.  463;  Turney  v.  Saunders,  4  Scam. 
(111.)  531;  the  possessor  Icing  required  to 
deduce  a  regular  title  from  the  first  occu- 
pant to  maintain  ejectment;  Turney  v. 
Saunders,  4  Scam.  (111.'  531  ;  and  a  sale  fur- 
nishing sufficient  consideration  for  a  promis- 
sory note;  Freeman  v.  Holliday,  Morris  (la.) 
SO;  Starr  v.  Wilson.  Morris  (la.)  4:'.^;  Pier- 
son  v.  David,  1  la.  23.  An  express  pr 
to  pay  for  improvements  made  by  "claim- 
ants" is  good,  and  the  proper  amount  to  be 
paid  may  be  determined  by  the  jury ;  John- 
son v.  Moulton,  1  Scam.   (111.)  532. 


CLAIM  OF  CONUSANCE 


502         CLARENDON,  CONSTITUTIONS  OF 


CLAIM  OF  CONUSANCE.  An  interven- 
tion by  a  third  person  demanding  jurisdic- 
tion of  a  cause  which  the  plaintiff  has  com- 
menced out  of  the  claimant's  court.  Now 
obsolete.  3  Bla.  Com.  29S.  See  Cognizance. 
CLAIM  PROPERTY  BOND.  A  bond  filed 
by  a  defendant  in  cases  of  replevin  and  of 
execution.  Upon  filing  such  bond  in  replev- 
in the  defendant  is  entitled  to  a  return  of 
the  goods  by  the  sheriff.  Its  use  is  said  to 
have  been  long  sanctioned  by  usage  in  Penn- 
sylvania;  Snyder  v.  Frankenfield,  4  Pa.  Dist. 
K.  767.  It  has  taken  the  place  in  replevin  of 
the  writ  de  proprietate  probanda;  Weaver 
v.  Lawrence,  1  Dall.  (U.  S.)  156,  1  L.  Ed.  79. 
Upon  giving  such  bond  defendant's  title  to 
the  goods  becomes  indefeasible  and  the 
plaintiff  can  only  look  to  the  security  for 
the  damages  which  he  may  recover;  1  Dall. 
U.  S.  (4th  Ed.  by  Brightly)  156,  157,  note. 
In  the  case  of  an  execution,  if  a  third  par- 
ty files  such  bond,  the  sheriff  may  at  his 
peril  withdraw  his  levy. 

CLAIMANT.  In  Admiralty  Practice.  A 
person  authorized  and  admitted  to  defend 
a  libel  brought  in  rem  against  property; 
thus,  Thirty  Hogsheads  of  Sugar,  Bentzon, 
Claimant  v.  Boyle,  9  Cra.  (U.  S.)  191,  3  L. 
Ed.  701. 

CLAMOR  (Lat.).  A  suit  or  demand;  a 
complaint.    Du  Cange;  Spelman,  Gloss. 

In  Civil  Law.  A  claimant.  A  debt;  any 
thing  claimed  from  another.  A  proclama- 
tion; an  accusation.    Du  Cange. 

CLARENDON,  ASSIZE  OF.  A  statute 
(1166)  the  principal  feature  of  which  was 
an  improvement  of  judicial  procedure  in  the 
case  of  criminals.  It  was  a  part  of  the 
same  scheme  of  reform  as  the  Constitution 
of  Clarendon.  See  James  C.  Carter,  The 
Law,  etc.,  65. 

CLARENDON,  CONSTITUTIONS  OF. 
Certain  statutes  made  in  the  reign  of  Henry 
II.  at  a  parliament  held  at  Clarendon  (A. 
D.  1164)  by  which  the  king  checked  the  pow- 
er of  the  pope  and  his  clergy  and  greatly 
narrowed  the  exemption  they  claimed  from 
secular  jurisdiction. 

Previous  to  this  time,  there  had  been  an  entire 
separation  between  the  clergy  and  laity,  as  mem- 
bers of  the  same  commonwealth.  The  clergy,  hav- 
ing emancipated  themselves  from  the  laws  as  ad- 
ministered by  the  courts  of  law,  had  assumed  pow- 
ers and  exemptions  quite  inconsistent  with  the  good 
government  of   the   country. 

This  state  of  things  led  to  the  enactment  referred 
to.  By  this  enactment  all  controversies  arising  out 
of  ecclesiastical  matters  were  required  to  be  deter- 
mined in  the  civil  courts,  and  all  appeals  in  spiritu- 
al causes  were  to  be  carried  from  the  bishops  to  the 
primate,  and  from  him  to  the  king,  but  no  further 
without  the  king's  consent.  The  archbishops  and 
bishops  were  to  be  regarded  as  barons  of  the  realm, 
possessing  the  privileges  and  subject  to  the  bur- 
dens belonging  to  that  rank,  and  bound  to  attend 
the  king  in  his  councils.  The  revenues  of  vacant 
sees  were  to  belong  to  the  king,  and  goods  forfeited 
to  him  by  law  were  no  longer  to  be  protected  in 
churches  or  church-yards.  Nor  were  the  clergy  to 
pretend   to   the   right   of  enforcing  the   payment  of 


debts  in  cases  where  they  had  been  accustomed  to 
do  so,  but  should  leave  all  lawsuits  to  the  determi- 
nation of  the  civil  courts.  The  rigid  enforcement  of 
these  statutes  by  the  king  was  unhappily  stopped, 
for  a  season,  by  the  fatal  event  of  his  disputes  with 
Archbishop  Becket.  Pitz  Stephen  27;  2  Lingard 
59 ;  1  Hume  382  ;  Wllkins  321 ;  4  Bla.  Com.  422  ;  1 
Poll.  &  M.  430-440,  461 ;    2  id.  196. 

CLASS.  A  number  of  persons  or  things 
ranked  together  for  some  common  purpose 
or  as  possessing  some  attribute  in  common. 

The  term  is  used  of  legatees;  Swinton  v.  Legare, 
2  McCord  Eq.  (S.  C.)  440  ;  of  obligees  in  a  bond  ;  Jus- 
tices of  Cumberland  v.  Armstrong,  14  N.  C.  284 ; 
and  of  other  collections  of  persons  ;  White  v.  Dela- 
van,  17  Wend.  (N.  Y.)  52;  Ellis  v.  Kimball,  16  Pick. 
(Mass.)  132;  Wheeler  v.  Philadelphia,  77  Pa.  338;  1 
Ld.    Raym.   708. 

CLASSIFICATION   IN  STATUTES.     As  to 

what  is  proper  classification  of  the  subjects 
of  statutes,  see  Equal  Protection  of  the 
Law  ;  Police  Powers. 

CLAUSE.  A  part  of  a  treaty;  of  a  legis- 
lative act;  of  a  deed;  of  a  will,  or  other 
written  instrument.     A  part  of  a   sentence. 

CLAUSULA  DEROGATIVA.  A  clause  in 
a  will  which  provides  that  no  will  subse- 
quently made  is  to  be  valid.  The  latter 
would  still  be  valid,  but  there  would  be 
ground  for  suspecting  undue  influence.  Gro- 
tius. 

CLAUSUM.     In    Old    English    Law.     Close. 

Closed. 

A  writ  was  either  clausum  (close)  or  apertum 
(open).  Grants  were  said  to  be  by  literce  patents 
(open  grant)  or  literce  clauses  (close  grant) ;  2  Bla. 
Com.   346. 

A  close.    An  enclosure. 

Occurring  In  the  phrase  quare  clausum  fregit 
(Rucker  v.  McNeely,  4  Blackf.  [Ind.]  181),  it  denotes 
in  this  sense  only  realty  in  which  the  plaintiff  has 
some  exclusive  interest,  whether  for  a  limited  or 
unlimited  time  or  for  special  or  for  general  pur- 
poses; 1  Chit.  PI.  174;  Austin  v.  Sawyer,  9  Cow. 
(N.  Y.)  39  ;    6  East  606. 


CLAUSUM  FREGIT.  See  Quare  Clau- 
sum Fregit  ;  Trespass. 

CLEAN  HANDS.  It  is  said  that  a  party 
seeking  the  aid  of  a  court  of  equity  must 
come  into  court  with  clean  hands.  It  refers 
only  to  wrongful  conduct  in  the  particular 
acts  or  transactions  which  raise  the  equity 
he  seeks  to  enforce;  Trice  v.  Comstock,  121 
Fed.  620,  57  C.  C.  A.  646,  61  L.  R.  A.  176; 
West  v.  Washburn,  153  App.  Div.  460,  138 
N.  Y.   Supp.  '230. 

CLEAR.  Free  from  indistinctness  or  un- 
certainty ;  easily  understood ;  perspicuous, 
plain;  free  from  impediment,  embarrassment 
or  accusation.    Webster. 

For  a  clear  deed,  see  Rohr  v.  Kindt,  3  W. 
&  S.  (Pa.)  563,  39  Am.  Dec.  53;  clear  title; 
Roberts  v.  Bassett,  105  Mass.  409;  clear  of 
expense;  2  Ves.  &  B.  341;  clear  of  assess- 
ments; Peart  v.  Phipps,  4  Yeates  (Pa.)  386; 
clear  days ;  14  M.  &  W.  120 ;  3  B.  &  Aid.  581. 

CLEARANCE.  A  certificate  given  by  the 
collector  of  a  port,  in  which  it  is  stated  that 


CLEARANCE 


503 


CLEARING-HOUSE 


the  master  or  commander  (naming  him)  of 
a  ship  or  vessel  named  and  described,  bound 
for  a  port  named  (and  having  on  board 
goods  described,  in  case  the  master  requires 
the  particulars  of  his  cargo  to  be  stated  in 
such  clearance),  has  entered  and  cleared  his 
ship  or  vessel  according  to  law. 

This  certificate,  or  clearance,  evidences  the  right 
of  the  vessel  to  depart  on  her  voyage  ;  and  clearance 
has  therefore  been  properly  defined  as  a  per, 
to  sail.     The  same  term  is  also  used  to  signify  the 
act  of  clearing.     Worcester,  Diet 

By  U.  S.  R.  S.  §  4197,  the  master  of  any 
vessel  bound  to  a  foreign  port  shall  deliver 
to  the  collector  of  the  district  from  which  he 
sails  a  sworn  manifest  of  his  cargo  and  its 
value.  To  s;iil  without  a  clearance  is  pun- 
ishable by  a  fine  of  $500. 

By  R.  S.  §  4200,  before  a  clearance  can  be 
granted  to  any  foreign-bound  vessel  the  own- 
ers, shippers  or  consignors  of  the  cargo  shall 
deliver  to  the  collector  sworn  manifests  of 
their  parts  of  the  cargo,  specify  the  kind  of 
goods  shipped  and  their  value,  and  the  mas- 
ter of  the  vessel  and  the  owners,  etc.,  of  the 
cargo  shall  subscribe  an  oath  as  to  the  for- 
eign place  in  which  such  cargo  is  intended 
truly  to  be  landed. 

The  collector  of  the  port  cannot  refuse 
clearance  because  a  ship  contains  contra- 
band ;  Northern  Pac.  R.  Co.  v.  Trading  Co., 
195  U.  S.  439,  25  Sup.  Ct  84,  49  L.  Ed.  2G9. 

According  to  Boulay-Paty,  Dr.  Com.  t.  2, 
p.  19,  the  clearance  is  imperatively  demand- 
ed for  the  safety  of  the  vessel ;  for  if  a  ves- 
sel should  be  found  without  it  at  sea  it  may 
be  legally  taken  and  brought  into  some  court 
for  adjudication  on  a  charge  of  piracy.  See 
Ship's  Papers. 

CLEARANCE  CARD.  A  letter  given  to 
an  employe  by  a  railroad  company,  at  t  lie 
time  of  his  discharge  or  end  of  service,  show- 
ing the  cause  of  such  discharge  or  voluntary 
quittance,  the  length  of  time  of  service,  his 
capacity,  and  such  other  facts  as  would  give 
to  those  concerned  information  of  his  former 
employment.  Such  a  card  is  in  no  sense  a 
letter  of  recommendation  and  in  many  cases 
might  be  of  a  form  and  character  which  the 
holder  would  hesitate  and  decline  to  present 
to  any  person  to  whom  he  was  making  ap- 
plication for  employment;  Cleveland,  C,  C. 
&  St.  L.  R.  Co.  v.  Jenkins,  174  111.  398,  51 
N.  E.  811,  62  L.  R.  A.  922,  66  Am.  St.  Rep. 
296;  with  a  full  note  on  the  question  of  the 
duty  of  employers  to  give  recommendations 
to  employes  either  discharged  or  voluntarily 
quitting.     See  Blacklist. 

CLEARING-HOUSE.  An  office  where 
bankers  settle  daily  with  each  other  the  bal- 
ance of  their  accounts. 

The  origin  of  the  system  is  said  to  have  been  in 
Edinburgh;  at  least  the  bankers  of  that  city  so 
claim;  but  the  earliest  record  of  one  (and  that  is 
not  clear  as  to  date)  is  that  of  London,  founded  in 
1775,  or  possibly  earlier.  It  was  started  in  the  ale- 
house of  those  times,  the  general  resort  of  pro- 
prietors of  new  enterprises.     The  system,  however, 


increased  in  usefulness  so  much  as  to  require  rooms, 
which  were  procured  in  Lombard  Street,  and  a 
system  was  rapidly  developed  of  exchanging  checks 
and  other  securities  to  reduce  the  amount  of  actual 
money  required  for  settlements.  In  this  country 
such  associations  were  established  in  New  York  in 
1858,  Boston  in  1856,  Philadelphia,  Baltimore,  and 
Cleveland  in  1858,  Worcester  in  1861,  Chicago  . 
and  since  that  date  the  system  has. extended  to  most 
of  the  cities  in  which  there  are  several  bank" 
also  exist  in  the  continental  countries  of  Europe. 
Most  of  these  associations  are  unincorporated,  but 
in  Minnesota  there  is  an  act  (March  4,  1893)  for  their 
incorporation.  The  Clearing-House  Association  of 
New  York  consists  of  all  the  incorporated  banks- 
private  bankers  not  being  admitted,  as  in  London. 
Two  clerks  from  each  bank  attend  at  the  clearing- 
house every  morning,  where  one  takes  a  position 
inside  of  a  counter  at  a  desk  bearing  the  number 
of  his  bank,  the  other  standing  outside  the  counter 
and  holding  in  his  hand  parcels  containing  the 
checks  on  each  of  the  other  banks  received  the  pre- 
vious day.  At  the  sound  of  a  bell,  the  outside  men 
begin  to  move,  and  at  each  desk  they  deposit  the 
proper  parcel,  with  an  account  of  its  contents— un- 
til, having  walked  around,  they  find  themselves  at 
their  own  desk  again.  At  the  end  of  this  process 
the  representative  of  each  bank  has  handed  to  the 
representatives  of  every  other  bank  the  demands 
against  them,  and  received  from  each  of  the  other 
banks  their  demands  on  his  bank.  A  comparison  of 
the  amounts  tells  him  at  once  whether  he  is  to  pay 
into  or  receive  from  the  clearing-house  a  balance  in 
money.  Balances  are  settled  daily.  In  London  the 
practice  of  presenting  checks  at  the  clearing-house 
has  been  held  a  good  presentment  to  the  banker  at 
law.  It  is  not  usual  to  examine  the  checks  until 
they  are  taken  to  the  bank,  and  if  any  are  then 
found  not  good  they  are  returned  to  the  bank  which 
presented  them,  which  settles  for  such  returned 
checks.  In  this  country  when  a  check  is  returned 
not  good  through  the  clearing-house,  It  is  usually 
again  presented  at  the  bank. 

To  accomplish  this  purpose  of  settling  daily  bal- 
ances was  the  original  and  still  is  the  principal 
object  of  a  clearing-house,  whatever  differences  of 
method  or  detail  may  be  found  in  different  cities. 
The  mode  of  proceeding  in  Philadelphia  is  described 
in  Crane  v.  Clearing-House,  32  W.  N.  C.  (P; 
and  Philler  v.  Yardley,  62  Fed.  645,  10  C.  C.  A.  662, 
25  L.  R.  A.  824  ;  and  that  of  London  in  5  Mann.  & 
G.  348,  6  Scott,  N.  R.  1,  12  L.  J.  C.  P.  113. 

The  original  purpose  of  a  clearing-house — 
the  exchange  of  paper  payable  by  the  sev- 
eral banks  and  the  settlement  of  the  daily 
balances  between  them — has  undergone  a 
gradual  but  very  extensive  expansion,  in 
the  larger  cities  they  have  become  to  some 
extent  financial  regulators  and  the  medium 
through  which  in  times  of  financial  dis- 
turbance there  is  attained  concerted  action 
by  the  banks  of  a  city.  In  the  panic  of 
the  New  York  clearing-house  issued  "clear- 
ing-house certificates"  representing  the  de- 
posit of  securities;  these  could  be  used  by 
the  banks  to  sett  ring-house  bah 

Such  certificates  are  held  valid,  and  suit 
may  be  brought  by  the  clearing-house  com- 
mittee upon  notes  included  in  the  collateral 
deposited  by  a  bank  for  the  purpose  of  tak- 
ing out  certificates;  Philler  v.  Woodfall,  32 
W.  N.  C.  (Pa.)  is:::  Philler  v.  Field.  29  W. 
N.  C.  (Pa.)  139;  Philler  v.  Esler,  29  W.  N. 
C.  (Pa.)  258.  A  elea  ring-house  due  bill  is 
an  ordinary  due  bill  from  a  bank  "to  Banks,'' 
and  usually  stipulates  that  it  is  good  when 
both  signed  and  countersigned  by  duly  au- 
thorized   officers,    and    to    be    payable    only 


CLEARING-HOUSE 


504 


CLEARING-HOUSE 


through  the  clearing-house  on  the  day  after 
its  issue.  During  the  financial  difficulties 
above  referred  to  such  due  bills  were  used 
by  the  banks  in  payment  of  checks  whenever 
practicable,  being  as  available  as  cash  for 
deposit  in  another  bank  of  the  same  city. 
They  are  held  not  to  be  certificates  of  de- 
posit but  negotiable,  and  requiring  indemni- 
ty to  recover  the  amount  due  on  them  if  lost 
or  stolen;  Dutton  v.  Bank,  16  Phila.  (Pa.) 
94. 

A  clearing-house  association  is  properly 
sued  in  the  names  of  the  committee  who 
have  the  entire  control  of  its  securities  and 
business  funds;  Yardley  v.  Philler,  58  Fed. 
74(1. 

The  tendency  of  the  decisions  upon  the 
rights  and  liabilities  of  clearing-houses  is  to 
treat  them  with  respect  to  the  customs  of 
the  banks  as  merely  instruments  of  making 
the  exchanges,  and  not  as  liable  to  individu- 
al depositors  or  holders  of  paper  for  funds 
which  have  passed  through  the  clearing- 
house in  the  process  of  exchange  between 
banks.  They  are  not  responsible  for  any- 
thing except  the  proper  distribution  of  mon- 
ey paid  to  settle  balances,  their  purpose  be- 
ing to  provide  a  convenient  place  where 
checks  may  be  presented  and  balances  ad- 
justed ;  German  Nat.  Bank  v.  Bank,  118  Pa. 
204,  12  Atl.  303.  When  a  bank  suspended 
after  the  morning  exchanges  but  before  the 
payment  of  the  general  balance  due  from  it, 
which  was  made  good  by  the  other  banks 
and  applied  by  the  clearing-house  to  the  in- 
debtedness of'  the  suspended  bank,  it  was 
held  that  the  clearing-house  was  not  liable 
to  the  holder  of  a  draft  on  one  of  the  other 
banks  deposited  in  the  suspended  bank,  be- 
cause the  draft  was  never  in  the  hands  of 
the  clearing-house  for  collection,  nor  did  its 
manager  hold  the  pi'oceeds  thereof  with 
knowledge  of  the  plaintiff's  rights  or  of  the 
existence  of  the  draft  until  demand  was 
made  upon  it;  Crane  v.  Clearing-House,  32 
W.  N.  C.   (Pa.)  358. 

The  rules  of  a  clearing-house  have  the 
binding  effect  of  law  as  between  the  banks; 
People  v.  Bank,  77  Hun  159,  28  N.  Y.  Supp. 
407;  German  Nat.  Bank  v.  Bank,  118  Pa. 
294,  12  Atl.  303 ;  Overman  v.  Bank,  31  N.  J. 
L.  5C3;  Blaffer  v.  Bank,  35  La.  Ann.  251; 
but  do  not  affect  the  relations  between  the 
payee  of  a  check  presented  through  the  clear- 
ing-house for  payment,  and  the  bank  on 
which  the  check  is  drawn;  People  v.  Bank, 
77  Hun  159,  28  N.  Y.  Supp.  407. 

The  course  of  business  of  a  clearing-house 
is  based  upon  the  idea  that  the  members  are 
principals  (and  trusted  by  each  other  as 
such),  and  not  agents  of  parties  not  mem- 
lers,  and  this  renders  possible  the  volume  of 
business  transacted ;  Overman  v.  Bank,  31 
N.  J.  L.  5G3. 

With  respect  to  the  effect  of  presentment 
at  the  clearing-house  or  failure  to  demand 
payment  there,  it  has  been  held  that  pres- 


entation to  the  banker's  clerk  at  the  clear- 
ing-house was  a  presentation  at  the  place  of 
payment  designated  in  a  bill  of  exchange ;  2 
Campb.  596;  that  the  failure  to  present  a 
check  at  the  clearing-house  in  violation  of 
an  imperative  custom  to  do  so  does  not  dis- 
charge the  drawer  of  the  check  as  between 
the  bankers  and  their  customer;  1  Nev.  & 
M.  541 ;  and  such  failure  to  present  is  not 
material  if  presented  in  the  ordinary  way, 
even  if  the  check  was  to  have  been  paid  if 
presented  at  the  clearing-house,  the  latter  be- 
ing merely  a  substitute  for  ordinary  pres- 
entation, authorized  by  custom  but  not  re- 
quired except  as  a  substitute  for  the  regular 
mode  if  that  is  omitted;  Kleekamp  v.  Meyer, 
5  Mo.  App.  444.  Sending  notes  to  a  bank 
through  the  clearing-house  is  but  leaving 
them  there  for  payment  during  banking 
hours  and  not  a  demand  at  the  bank  for  im- 
mediate payment ;  National  Exchange  Bank 
v.  Bank,  132  Mass.  147. 

The  right  of  return  of  paper  found  not 
good  secured  by  the  rules  of  the  clearing- 
house is  a  special  provision  in  compensation 
for  payment  without  inspection,  with  an  op- 
portunity for  future  inspection  and  recall  of 
the  payment.  When  the  opportunity  is  had 
and  not  availed  of,  the  general  principles  of 
law  intervene  to  regulate  the  rights  and  lia- 
bilities of  the  paying  bank ;  National  Bank 
of  North  America  of  Boston  v.  Bangs,  106 
Mass.  441,  8  Am.  Rep.  349.  The  return  of 
such  paper  after  its  receipt  through  the 
clearing-house  is  not  prevented  by  its  having 
been  marked  cancelled  by  mistake ;  1  Campb. 
426;  5  Mann.  &  G.  348;  nor  by  putting  it 
on  a  file  and  entering  it  in  the  journal ;  Ger- 
man Nat.  Bank  v.  Bank,  118  Pa.  294,  12  Atl. 
303 ;  nor  by  failure  to  return  by  the  time 
fixed  by  rule  whether  caused  by  mistake  of 
fact ;  Manufacturers'  Nat.  Bank  v.  Thompson, 
129  Mass.  438,  37  Am.  Rep.  376 ;  Merchants' 
Nat.  Bank  v.  Bank,  101  Mass.  281,  100  Am. 
Dec.  120;  or  not;  Boylston  Nat.  Bank  v.  Rich- 
ardson, 101  Mass.  2S7 ;  nor  in  such  case 
if  the  bank  had  through  mistake  given  credit 
to  the  depositor ;  Merchants'  Nat.  Bank  v. 
Bank,  139  Mass.  513,  2  N.  E.  89 ;  but  a  rule 
of  the  Chicago  clearing-house  limiting  the 
time  of  return  was  held  to  constitute  a  bind- 
ing contract,  and  the  right  to  recover  back 
a  payment  made  by  mistake  and  discovered 
within  fifteen  minutes  was  denied  and  the 
Massachusetts  rule  criticised ;  Preston  v. 
Bank,  23  Fed.  179. 

When  there  is  no  rule  and  no  uniform  cus- 
tom, payment  at  the  clearing-house  is  provi- 
sional, to  become  complete  when  payment  is 
made  in  the  ordinary  course  of  business,  and 
if  not  so  made  to  be  treated  as  payment  un- 
der a  mistake  of  fact,  and  with  the  same 
rights  of  reclamation  as  if  made  without  a 
clearing-house;  National  Exchange  Bank  v. 
Bank,  132  Mass.  147.  The  rules  may  be 
waived  ;  Stuyvesant  Bank  v.  Banking  Ass'n, 
7  Lans.  (N,  Y.)  197. 


CLEARING-HOUSE 


505 


CLERICAL  EB 


A  bank  not  a  member,  in  sending  checks 
through  the  clearing-house,  is  bound  by  its 
action  under  its  rules  in  returning  payment 
made  by  mistake;  id.;  but  a  bank  not  a 
member  is  not  bound  by  the  clearing-house 
rules  as  to  the  time  of  returning  checks  not 
good,  in  case  of  a  check  sent  by  it  through  a 
b:ink  which  was  a  member;  such  a  case  Ls 
governed  by  the  ordinary  principles  applica- 
ble to  it  and  not  by  the  clearing-house  rules; 
Overman  v.  Bank,  31  N.  J.  L.  563. 

When  the  drawee  bank  received  a  forged 
check  through  the  clearing-house  as  genu- 
ine and  failed  to  return  it  or  to  discover  the 
forgery  for  several  days,  the  bank  which  took 
the  check  and  sent  it  to  the  clearing-house 
could  not  be  held  liable  for  negligence  in  re- 
ceiving it  from  a  stranger  and  sending  it 
through  the  clearing-house  without  notice ; 
Commercial  &  Fanners'  Nat.  Bank  of  Balti- 
more v.  Bank,  30  Md.  11,  9G  Am.  Dec.  554. 

In  London  there  is  also  a  railway  clearing- 
house. 

See  National  City  Bank  v.  Bank,  101  N. 
Y.  595,  5  N.  E.  463;    25  L.  R.  A.  824,  note. 

See  Insolvent. 

CLEMENTINES.  The  collection  of  decret- 
als or  constitutions  of  Pope  Clement  V., 
which  was  published,  by  order  of  John  XXII., 
his  successor,  in  1317. 

The  death  of  Clement  V.,  in  1314,  prevented  him 
from  publishing  this  collection,  which  is  properly  a 
compilation  as  well  of  the  epistles  and  constitutions 
of  this  pope  as  of  the  decrees  of  the  council  of 
Vienna,  over  which  he  presided.  The  Clementines 
are  divided  into  five  books,  in  which  the  matter  is 
distributed  nearly  upon  the  same  plan  as  the  decre- 
tals of   Gregory  IX.     See  Dupin,  Bibliotlicque. 

CLERGY.  The  name  applicable  to  ec- 
clesiastical ministers  as  a  class. 

Clergymen  were  exempted  by  the  emperor  Con- 
stantine  from  all  civil  burdens.  Baronius,  ad  ami. 
319,  §  30.  Lord  Coke  says,  2  Inst.  3,  ecclesiastical 
persons  have  more  and  greater  liberties  than  other 
of  the  king's  subjects,  wherein  to  set  down  all  would 
take  up  a  whole  volume  of  itself.  In  the  United 
States  the  clergy  is  not  established  by  law. 

CLERGY,  BENEFIT  OF.  See  Benefit  of 
Clebqt. 

CLERGYABLE.  Allowing  of,  or  entitled 
to,  the  benefit  of  clergy  (privilegium  cleri- 
cale).  Used  of  persons  or  crimes.  4  Bla. 
Com.  371.    See  Benefit  of  Clergy. 

CLERICAL  ERROR.  An  error  made  by  a 
clerk  in  transcribing  or  otherwise.  This  is 
always  readily  corrected  by  the  court.  An 
error,  for  example,  in  the  teste  of  a  fi.  fa.; 
Baker  v.  Smith,  4  Yeates  (Pa.)  185;  Berthon 
v.  Keeley,  id.  205;  or  in  the  teste  and  return 
of  a  vend,  cxp.;  or  in  a  certificate  of  a  no- 
tary; Schwarz  y.  Baird,  100  Ala.  154,  13 
South.  917 ;  or  where  an  action  is  begun  by 
one  plaintiff  and  is  afterwards  amended  by 
adding  additional  parties,  the  entering  of 
judgment  in  favor  of  "the  plaintiff"  instead 
of  "the  plaintiffs''  is  a  clerical  error  and 
amendable  on  appeal ;    Shoemaker  v.  Knorr, 


1  Dall.  (U.  S.)  197,  1  L.  Ed.  97;    or  in  writ- 
ing Dowell   for    McDowell;     Peddle   v.    IIol- 
linshead,  9  S.  &  R.  (Pa.;  : 
a;    Citizens'   Bank  v.   Farwell.   56 
6  C.  C.  A.  24;    Storke  v.  Storke,  99  CaL  621, 
34  Pac.  339.     An  error  is  amendable  where 
there   is  something  to   amend    by,   and    this 
even  in  a  criminal  case;    Benner  v.  Frey,  1 
Binn.  (Pa.)  367;    12  Ad.  &  E.   L'17;    for  the 
party  ought  not  to  be  harmed  by  the  omi 
of  the  clerk;  Jack  v.  Kales.  3  Binn.  (Pa.)  102; 
even  of  his  signature,  if  he  affixes  the 
McCormick  v.  Meason,  l   s.  &  R.   (Pa.)  '.»T. 
Where  a  clerical  error  has  crept  into  a  de- 
cree, the  court  will  rectify  it,  though  the  de- 
cree has  been  passed  and  entered;    Hovey  v. 
McDonald,  109  U.  S.   157,  3  Sup.  Ct   1 
L  Ed.  888;    but  not  after  the  term  without 
notice,  especially  where  the  condition  of  the 
parties  has  changed;     Wetmore   v.   Karrick, 
205  U.  S.  141,  27  Sup.  Ct.  434,  51  L.  Ed.  743. 

CLERICI   DE  CURSU.     See  Cursitob. 

CLERICUS     (Lath     In     Civil     Law.     Any 

one  who  has  taken  orders  in  church,  of  what- 
ever rank;  monks.  A  general  term  includ- 
ing bishops,  subdeacons,  readers,  and  can- 
tors. Du  Cange.  Used,  also,  of  those  who 
were  given  up  to  the  pursuit  of  letters,  and 
who  were  learned  therein.  Also  of  the 
amanuenses  of  the  judges  or  courts  of  the 
king.     Du  Cange. 

In  English  Law.  A  secular  priest,  in  op- 
position to  a  regular  one.  Keunett,  Paroch. 
Ant  171.  A  clergyman  or  priest :  one  in 
orders.  NuUus  clericus  nisi  causidicits  mo 
clerk  but  what  is  a  pleader).  1  Bla.  Com.  17. 
A  freeman,  generally.  One  who  was  c; 
with  various  duties  in  the  king's  household. 
Du  Cange. 

CLERICUS   MERCATI    H0SPITII    REGIS. 

The  clerk  of  the  market  at  the  king's  gate. 
An  honorable  office  pertinent  to  the  aneient 
custom  of  holding  markets  in  the  suburbs  of 
the  king's  court.  In  early  times  he  witnessed 
the  parties'  verbal  contracts.  At  a  later 
date  he  adjudicated  in  its  prices  of  com- 
modities ;  he  inquired  as  to  all  weights  and 
measures;  he  measured  laud;  and  had  the 
power  to  send  bakers  and  others  to  the  pil- 
lory.   Inderwick,  The  King's  Peace. 

CLERK.     In    Commercial    Law.     A    person 

in  the  employ  of  a  merchant,  who  attends 
only  to  a  part  of  his  business,  while  the  mer- 
chant himself  superintends  the  whole.  He 
differs  from  a  factor  in  this,  that  the  latter 
wholly  supplies  the  place  of  his  principal  in 
respect  to  the  property  consigned  to  him. 
Pardessus,  Droit  Comm.  n.  38;  1  Chit.  Pr.  SO. 

In  Ecclesiastical  Law.  Any  individual  who 
is  attached  to  the  ecclesiastical  state  and  has 
submitted  to  the  tonsure.  One  who  has  been 
ordained.  1  Bla.  Com.  3SS.  A  clergyman.  4 
Bla.  Com.  367. 

In  Offices.    A  person  employed  in  an  office, 


CLERK 


506 


CLOSE 


public  or  private,  for  keeping  records  or  ac- 
counts. 

His  business  is  to  write  or  register,  in  proper 
form,  the  transactions  of  the  tribunal  or  body  to 
which  he  belongs.  Some  clerks,  however,  have 
little  or  no  writing  to  do  in  their  offices:  as  the 
clerk  of  the  market,  whose  duties  are  confined 
chiefly  to  superintending  the  markets.  This  is  a 
common  use  of  the  word  at  the  present  day,  and  is 
also  a  very  ancient  signification,  being  derived, 
probably,  from  the  office  of  the  clericus,  who  at- 
tended, amongst  other  duties,  to  the  provisioning 
the  king's  household.     See  Du  Cange. 

A  person  serving  a  practising  solicitor  un- 
der binding  articles  in  England,  for  tbe  pur- 
pose of  being  admitted  to  practice  as  a  so- 
licitor.    See  Clerkship. 

In  New  England,  used  to  designate  a  cor- 
poration official  who  performs  some  of  tbe 
duties  of  a  secretary. 

CLERK  OF  THE  CROWN.  An  officer 
wbose  duty  it  is  to  issue  writs  for  election 
for  members  of  Parliament,  upon  tbe  war- 
rant of  the  Lord  Chancellor  and  to  deliver 
to  the  House  of  Commons  the  list  of  mem- 
bers returned  (elected) ;  to  certify  the  elec- 
tion of  Scotch  and  Irish  peers ;  and  to  per- 
form duties  formerly  performed  by  the  Clerk 
of  the  Hanaper.  He  is  Permanent  Secretary 
of  the  Lord  Chancellor's  Office,  House  of 
Lords. 

CLERK  OF  THE  PEACE.  An  officer  of 
Courts  of  Quarter  Sessions  in  England. 

CLERK  OF  THE  TABLE.  An  official  of 
the  British  House  of  Commons  who  advises 
the  speaker  on  all  questions  of  order. 

CLERKSHIP.  The  period  which  must  be 
spent  by  a  law-student  in  tbe  office  of  a  prac- 
tising attorney  before  admission  to  the  bar. 
1  Tidd,  Pr.  61.  Under  tbe  present  rules  he 
must  serve  as  a  clerk  to  a  practising  so- 
licitor under  binding  articles  for  from  three 
to  five  years;  Odgers,  C.  L.  1431.  For  the 
earlier  history  of  clerkships  at  law,  see  Re- 
port of  Amer.  Bar  Assoc,  1911  (Section  of 
Leg.  Educ). 

CLIENT.  In  Practice.  One  who  employs 
and  retains  an  attorney  or  counsellor  to  man- 
age or  defend  a  suit  or  action  to  which  he 
is  a  party,  or  to  advise  him  about  some  legal 
matters.     See  Attorney-at-Law. 

CLOGGING  THE  EQUITY  OF  REDEMP- 
TION.   See  Equity  of  Redemption. 

CLOSE.  An  interest  in  the  soil.  Doctor 
&  Stud.  30;  6  East  154;  1  Burr.  133;  or  in 
trees  or  growing  crops.  Clap  v.  Draper,  4 
Mass.  2G6,  3  Am.  Dec.  215  ;  Stewart  v.  Dough-. 
ty,  9  Johns.  (N.  Y.)  113. 

In  every  case  where  one  man  has  a  right 
to  exclude  another  from  his  land,  the  law 
encircles  it,  if  not  already  inclosed,  with  an 
imaginary  fence,  and  entitles  him  to  a  com- 
pensation in  damages  for  the  injury  he  sus- 
tains by  the  act  of  another  passing  through 
his  boundary — denominating  the  injurious 
act  a  breach  of  the  inclosure ;   Hamm.  N.  P. 


151;  Doctor  &  Stud.  dial.  1,  c.  8,  p.  30; 
Worrall  v.  Rhoads,  2  Wbart.  (Pa.)  430,  30 
Am.  Dec.  274. 

In  considering  the  cases  in  which  trespass 
might  be  supported  for  an  injury  to  land  (for 
breaking  the  close)  it  is  laid  down  that  the 
term  close,  being  technical,  signifies  the  in- 
terest in  the  soil,  and  not  merely  an  inclo- 
sure in  the  common  acceptance  of  that  term. 
It  lies,  however  temporary  the  tenant's  in- 
terest, and  though  it  be  merely  in  the  profits 
of  the  soil  as  vesturce  terras  or  herbagii  pas- 
ture; Co.  Litt.  4  6;  5  East  480;  6  id.  606; 
5  T.  R.  535;  prima  tonsura;  7  East  200: 
chase  for  warren,  etc. ;  2  Salk.  637 ;  if  it  be 
in  exclusion  of  others ;  2  Bla.  Rep.  1150 ;  8 
M.  &  S.  499.  So  it  lies  by  one  having  a  right 
to  take  off  grass;  6  East  602;  or  after  a 
tenancy  expires,  a  right  to  emblements; 
Stewart  v.  Doughty,  9  Johns.  (N.  Y.)  108 ;  or 
by  one  having  the  right  to  cut  timber  trees ; 
Clap  v.  Draper,  4  Mass.  266,  3  Am.  Dec. 
215. 

Ejectment  will  not  lie  for  a  close;  11  Co. 
55  ;  Cro.  Eliz.  235 ;  Ad.  Ej.  24.    See  Clatjsum. 

CLOSE  COPIES.  Copies  which  might  be 
written  with  any  number  of  words  on  a 
sheet.  Office  copies  were  to  contain  only  a 
prescribed  number  of  words  on  each  sheet. 

CLOSE  HAULED.  The  arrangement  of  a 
vessel's  sails  when  she  endeavors  to  make 
progress  in  the  nearest  direction  possible  to- 
wards that  point  of  the  compass  from  which 
the  wind  blows.  6  El.  &  Bl.  771;  Black,  L. 
Diet. 

CLOSE  ROLLS.  Rolls  containing  the  rec- 
ord of  the  close  writs  (Uteres  clausce)  and 
grants  of  the  king,  kept  with  the  public  rec- 
ords. 2  Bla.  Com.  346.  See  Letters  Close; 
Rolls. 

CLOSE  SEASON.  A  time  of  the  year 
when  the  taking  of  game  is  prohibited  by 
statute.     See  Fence  Month. 

CLOSE  WRITS.  Writs  directed  to  the 
sheriff  instead  of  to  the  lord.  3  Reeve,  Hist 
Eng.  Law  45.  Writs  containing  grants  from 
the  crown  to  particular  persons  and  for  par- 
ticular purposes,  which,  not  being  intended 
for  public  inspection,  are  closed  up  and  seal- 
ed on  the  outside,  instead  of  being  open  and 
having  the  seal  appended  by  a  strip  of  parch- 
ment   2  Bla.  Com.  346 ;   Sewall,  Sher.  372. 

CLOSED  COURT.  A  term  sometimes  used 
to  designate  the  Common  Pleas  Court  of 
England  when  only  serjeants  could  argue 
cases,  which  practice  persisted  until  1S33. 

CLOSING  A  CONTRACT.  An  expression 
used  in  New  York  to  indicate  the  settlement 
or  carrying  out  of  a  contract. 

CLOTURE  (Fr.).  The  procedure  in  delib- 
erative assemblies  whereby  debate  is  closed. 
Introduced  in  the  English  parliament  in  the 
session  of  1882.     Wharton.     It  is  generally 


CLOTURE 


507 


cocki:t 


effected  by  moving  the  previous  question. 
See  Roberts,  Pules  of  Order  §§  20,  5S  a. 
This  motion  is  not  recognized  in  the  senate 
of  the  United  States. 

CLOUD  ON  TITLE.  See  Bill  to  Quiet 
Possession  and  Title. 

CLUB.  An  incorporated  or  unincorporat- 
ed association  of  persona  for  purposes  of  a 
social,  literary,  or  political  nature  or  the 
like.  The  latter  is  not  a  partnership;  2  M. 
&  W.  172;  87  L.  T.  571.  No  member  be- 
comes liable  as  such  to  pay  to  the  society 
or  any  one  else  any  money  except  the  amount 
required  by  the  rules;    id.;    [1903]  A.  C.  139. 

The  by-laws  of  a  club  constitute  a  con- 
tract between  the  members  and  the  club. 
A  member's  resignation,  to  be  effectual,  must 
comply  with  the  by-laws;  Boston  Club  v.  Pot- 
ter, 212  .Mass.  23,  98  N.  E.  614,  Ann.  Cas. 
1913C,  397. 

A  club  organized  for  various  sports  voted, 
by  a  majority,  to  abolish  pigeon  shooting; 
held,  that  it  was  within  its  power;  [1900] 
1  Ch.  4S0. 

See  Resignation;  Amotion;  Liquor  Laws. 

CO-ADMINISTRATOR.  One  who  is  ad- 
ministrator  with  one  or  more  others.     See 

AllMIMSTUATOB. 

CO-ASSIGNEE.  One  who  is  assignee  with 
one  or  more  others.     See  Assignment. 

CO-EXECUTOR.  One  who  is  executor 
with  one  or  more  others.     See  Executor. 

CO-RESPONDENT.  Any  person  called 
upon  to  answer  a  petition  or  other  proceeding, 
but  now  chiefly  applied  to  a  person  charged 
with  adultery  with  the  husband  or  wife,  in 
a  suit  for  divorce,  and  made  jointly  a  re- 
spondent to  the  suit     See  Divorce. 

COADJUTOR.  The  assistant  of  a  bishop. 
An  assistant. 

C0ADUNATI0.    A  conspiracy.    9  Coke  56. 

COAL  NOTE.  A  species  of  promissory 
note  authorized  by  3  Geo.  II.  c.  26,  §§  7,  8, 
which,  having  these  words  expressed  there- 
in, namely,  "value  received  iu  coals,"  is  to 
be  protected  and  noted  as  an  inland  bill  of 
exchange. 

COAST.  The  margin  of  a  country  bounded 
by  the  sea.  This  term  includes  the  natural 
appendages  of  the  territory  which  rise  out 
of  the  water,  although  they  are  not  of  suffl- 
cient  firmness  to  be  inhabited  or  fortified. 
Shoals  perpetually  covered  with  water  are 
not,  however,  comprehended  under  the  name 
of  coast.  The  small  islands  situate  at  the 
mouth  of  the  Mississippi,  composed  of  earth 
and  trees  drifted  down  by  the  river,  which 
are  not  of  consistency  enough  for  supporting 
life,  and  are  uninhabited,  though  resorted  to 
for  shooting  birds,  form  a  part  of  the  coast. 

COCKET.  A  seal  appertaining  to  the 
king's  custom-house.  Reg.  Orig.  192.  A 
scroll  or  parchment  sealed  and  delivered  by 


the  officers  of  the  custom-house  to  merchants 

as  an  evidence  that  their  wares  are  ci: 

ed.     Cowell;    Spelman,   i  : 

0.  IT!.     The  entry  office  in  the  custom  house 

itself.     A  kind  of  bread  said  by  Cowell  to  be 

hard-baked;     sea-biscuit;     a    measure.      See 

Wastel. 

CODE  (Lat  Codex,  the  stock  <>r  stem  of  a 
tree — originally  the  board  covered  with  wax, 
on  which  the  ancients  originally  win 
body   of   law   established   by   the   legislative 

authority  of  the  state,  and  di 

ulate  completely,   so  far  as  a  statute  may, 

the  subject  to  which  it  relates. 

From  the  rude  beginning,  expressed  in  the 
derivation  of  the  word,  there  developed  the 
somewhat  diversified  signification  which  it 
has  acquired  in  jurisprudence.  It  has 
used  to  describe  a  collection  of  pre-existing 
laws  arranged  and  classified  into  a  I 
system,  or  one  intended  to  be  such,  without 
the  interpolation  of  new  matter,  and  also  a 
declaration  of  the  law  composed  partly  of 
such  materials  as  might  be  at  hand  from  all 
sources, — statutes,  adjudications,  customs, — 
supplemented  by  such  amendments,  altera- 
tions, and  additions  as  seemed  to  the  law- 
givers to  be  required  to  constitute  a  com- 
plete system  and  adapt  it  to  the  purpose  of 
its  adoption,  or  promulgation. 

This  mixed  character,  it  may  probably  be 
asserted  with  confidence,  is  essential  to  the 
existence  of  a  code  as  the  term  is  now  un- 
derstood, and  has  entered  more  or  less  into 
the  composition  of  every  body  of  laws  known 
as  such  in  history. 

The  idea  of  a  code  involves  that  of  the 
exercise  of  the  legislative  power  in  its  pro- 
mulgation;   but  the  name  has  been   L 
applied  also  to  private  compilations  of  stat- 
utes. 

The  subject  of  codes  and  the  kindred  topics  of 
legal  reform  have  received  great  attention  from 
the  jurists  and  statesmen  of  the  present  century. 
Probably  no  subject  in  the  domain  of  law  has  been 
the  occasion  of  more  extended  and  earnest  discus- 
sion than  the  relative  merits  of  the  Code  system  as 
it  is  understood  by  jurists,  and  that  which  is  con- 
sidered and  treated  on  both  sides  of  the  controversy 
as  its  antithesis,  a  body  of  law  partly  written  and 
partly  unwritten,  finding  its  beginnings  in  customs 
gradually  ripening  into  customary  law ;  seeking 
later  expression  in  statutes  and  passing  through  a 
period  of  judicial  interpretation  and  modification 
by  being  fitted,  as  it  were,  Into  successive  cases, 
with  sufficiently  varying  facts  to  produce  that  flex- 
ibility which  is  needed  for  final  crystallization  into 
a  body  of  rules  and  principles  sufficiently  well  set- 
tled as  to  have  attained  the  dignity  of  a  well  order- 
ed system.  Of  the  one  the  Roman  Law  is  the  illus- 
tration unrivalled  in  history,  as  Is  the  English  Com- 
mon Law  of  the  other.  While,  however,  tl: 
represent  two  distinct  and   well   d  ins  of 

the  development  of  law,  the  thoughtful  and  . 
tial  reader  of  what  is  written  by  the  arde-it  advo- 
cates of  each,  assuming  as  many  of  them  do  that 
the  adoption  of  the  one  is  the  exclusion  of  the  oth- 
er, may  find  himself  inclining  to  the  conclusion  that 
in  dealing  with  this  as  with  most  juridical  ques- 
tions, an  entirely  one-sided  view  will  leave  much  to 
be  desired.  It  may  be  permissible  to  qu 
whether  these  two  systems  are  essentially  distinct 
and  antagonistic  types,  or  different  methods  employ- 


CODE 


508 


CODE 


ed  in  and  essential  to  the  evolution  of  municipal 
law  as  a  whole,  and  of  the  science  of  jurisprudence 
in  its  widest  sense.  It  is  true  that  there  are  record- 
ed in  history  proposals  to  form  a  code  of  laws  de 
novo  having  relation  only  to  the  future  and  disre- 
garding the  past,  but  this  has  been  properly  regard- 
ed as  the  visionary  dream  of  the  enthusiast  rather 
than  the  matured  conclusion  of  a  judicious  law- 
giver. It  is  hardly  to  be  questioned  that  no  code 
has  ever  taken  its  place  as  an  instrument  of  legal 
administration  into  which  there  did  not  enter  as  a 
substantial  constituent  a  body  of  existing  common 
law,  and  that  every  body  of  Unwritten  law  on  a  giv- 
en subject  is  tending  towards  ultimately  finding  its 
expression  in  what  is  tantamount  to  a  code,  wheth- 
ed  called  by  that  name  or  not.  Indeed,  if  dry  tech- 
nicalities of  definition  be  avoided,  it  is  hardly  an 
exaggeration  to  say  that  there  are  single  decisions 
of  English  or  American  judges,  such,  for  example, 
as  Coggs  v.  Bernard,  which  may  not  be  inaptly 
termed  a  code  or  codification  of  the  law  on  the  sub- 
ject to  which  they  relate,  and  which  come  to  be  rec- 
ognized as  such  with  authority  which  could  hardly 
be  increased  by  legislative  affirmation.  The  diffi- 
culty of  making  a  hard  and  fast  line  between  the 
two  systems  is  quite  well  shown  by  all  the  attempts 
to  define  precisely  the  word  code.  A  judicious  writ- 
er, after  a  review  of  the  historical  codes,  concludes 
that  substantially  they  are  of  three  kinds;  and  his 
classification  is  not  only  satisfactory  in  itself  but 
admirably  illustrates  what  has  been  said. 

"First. — The  classification  of  statutes  of  force  sys- 
tematically arranged,  according  to  subject-matter, 
without  amendment,  alteration,  or  interpolation  of 
new  law,  the  only  change  being  in  the  correction  of 
errors  of  expression,  repetitions,  superfluities,  and 
contradictions,  compressed  into  as  small  a  space  as 
possible,  which,  when  done,  will  leave  the  laws  in 
letter  and  in   spirit  just  as  they  were. 

"Second.— The  same  as  the  first  in  form,  but  going 
further  and  making  such  amendments  as  are  deem- 
ed necessary  to  harmonize  and  perfect  the  existing 
system. 

"Third.— To  take  a  yet  greater  latitude,  and,  with- 
out changing  the  existing  system  of  laws,  to  add 
new  laws,  and  to  repeal  old  laws,  both  in  harmony 
with  it,  so  that  the  code  will  meet  present  exigen- 
cies, and  so  far  as  possible  provide  for  the  future  ; 
and  this  is  real  codification."  To  these  statements 
the  writer  adds  a  fourth,  "wholly  impracticable 
and  even  visionary,"  which  is  "to  disregard  at  will 
existing  laws,  and  make  a  system  substantially 
new,"  such  as  the  author  deems  best  and  wisest. 
Paper  of  Judge  Clark,  Rep't  Ga.  St.  Bar  Ass'n,  1890. 

There  is  unquestionably  a  strong  tendency  to- 
wards codification  in  a  general  sense,  which  mani- 
fests itself  in  the  tendency  to  general  revisions  of 
federal  and  state  statutes,  the  adoption  of  codes  of 
procedure  by  name  in  several  of  them,  and  in  fact 
though  not  in  name  in  many  others,  the  codes  of 
India,  and  not  the  least  in  the  growing  interest  in 
an  active  discussion  of  the  subject.  If  this  interest 
leads  to  action  wisely  tempered  with  a  due  regard 
for  the  proper  functions  of  written  and  unwritten 
law,  and  freedom  from  extreme  views  and  the  effort 
to  accomplish  the  impossible  task  of  reducing  all 
law  to  the  unyielding  forms  of  statutory  enactment, 
it  will  undoubtedly  be  fruitful  of  good  results. 

When  it  is  considered  how  rapidly  statutes  accu- 
mulate as  time  passes,  it  is  obvious  that  great 
convenience  will  be  found  in  having  the  statute  law 
in  a  systematic  body,  arranged  according  to  sub- 
ject-matter, instead  of  leaving  it  unorganized,  scat- 
tered through  the  volumes  in  which  it  was  from 
year  to  year  promulgated.  Revision  to  this  extent 
is  very  frequent,  and  is  what  is  usually  accomplish- 
ed in  the  Revised  Statutes  of  many  states  which  are 
inartificially  termed  codes.  Of  this  general  charac- 
ter were  the  Revised  Statutes  of  the  United  States; 
infra.  When  the  transposition  of  the  statutes  from 
a  chronological  to  a  scientific  order  is  undertaken, 
more  radical  changes  immediately  propose  them- 
selves. These  are  of  two  classes:  first,  amendments 
for  the  purpose  of  harmonizing  the  inconsistencies 
which  such  an  arrangement  brings  to  notice,  and 
supplying    defects;     second,    the    Introduction    into 


the  system  of  all  other  rules  wuich  are  recognized 
as  the  unwritten  or  common  law  of  the  state.  The 
object  of  the  latter  class  of  changes  is  to  embody  in 
one  systematic  enactment  all  that  is  thenceforth  to 
be  regarded  as  the  law  of  the  land.  It  is  this  at- 
tempt which  is  usually  intended  by  the  distinctive 
term   codification. 

The  first  two  of  the  questions  thus  indicated  may 
be  deemed  as  settled,  by  general  concurrence,  in 
favor  of  the  expediency  of  such  changes;  and  the 
process  of  the  collection  of  the  statute  law  in  one 
general  code,  or  in  a  number  of  partial  codes  or 
systematic  statutes,  accompanied  by  the  amend- 
ments which  such  a  revision  invites,  is  a  process 
which  for  some  years  has  been  renovating  the  laws 
of  England  and  the  United  States.  Although  at 
the  same  time  something  has  been  done,  especially 
in  this  country,  towards  embodying  in  these  statutes 
principles  which  before  rested  in  the  common  or 
report  law,  yet  the  feasibility  of  doing  this  com- 
pletely, or  even  to  any  great  extent,  must  be  deemed 
an  open  question.  It  has  been  discussed  with  great 
ability  by  Bentham,  Savigny,  Thibaut,  and  others. 
It  is  undeniable  that,  however  successfully  a  code 
might  be  supposed  to  embody  all  existing  and  de- 
clared law,  so  as  to  supersede  previous  sources,  it 
cannot  be  expected  to  provide  prospectively  for  all 
the  innumerable  cases  which  the  diversity  of  affairs 
rapidly  engenders,  and  there  must  soon  come  a  time 
when  it  must  be  studied  in  the  light  of  numerous 
explanatory  decisions. 

Real  codification  involves  the  most  intimate  and 
exhaustive  knowledge  not  only  of  the  statute  law 
to  be  included,  but  also  of  the  judicial  interpreta- 
tion and  construction  of  it,  and  from  the  moment 
of  the  adoption  of  a  code  it  begins  to  be  the  subject 
of  a  new  series  of  decisions  which  are  required  to 
interpret,  modify,  and  explain  it  and  adapt  it  to 
modern  conditions  and  the  facts  of  cases  of  new  im- 
pression, as  is  and  always  has  been  the  case  with 
respect  to  the  adaptation  of  the  ancient  rules  of 
the  common  law  to  modern  conditions.  In  doing 
this  the  necessity  for  and  opportunity  of  judicial 
legislation  are  infinite,  and  with  the  multiplicity  of 
courts  and  jurisdictions  the  difficulties  of  preserv- 
ing a  system  founded  on  reason  are  far  greater  than 
they  were  even  a  very  few  years  ago.  And  this 
consideration  is  strongly  urged  in  favor  of  the  code 
system.  On  the  other  hand,  that  the  law  of  master 
and  servant,  which  was  founded  on  such  relations 
as  the  coachman  and  the  blacksmith's  striker, 
should  have  been  applied  with  so  little  friction  to 
the  railroad  and  the  factory,  is  hardly  less  wonder- 
ful than  the  development  of  the  common  carrier  of 
the  post  road  and  van  to  the  telephone  cofnpany, 
and  these  rapid  transformations  may  serve  as  the 
basis  of  an  argument  that  no  civil  code  can  be 
framed  with  sufficient  wisdom  to  provide  for  the 
constantly  changing  conditions  of  life  and  business. 

In  addition  to  the  considerations  herein  mentioned 
as  bearing  upon  the  subject,  Lord  Chief  Justice 
Russell,  in  his  address  before  the  American  Bar 
Association  (Report  1896),  in  disapproving  of  the 
proposal  to  codify  international  law,  mentions  and 
illustrates  a  very  fundamental  objection  to  the 
codification  of  branches  of  the  law  not  yet  definitely 
reduced  to  fixed  rules.  His  observations  approach 
very  nearly  the  suggestion  of  a  striking  and  effec- 
tive limitation  of  the  extent  to  which  codification 
should  go  beyond  the  scientific  revision  of  statute 
law,  and  in  the  direction  of  including  law  settled  by 
decision  and  not  by  statute.  Some  branches  of  the 
law  are  admirably  adapted  to  complete  codification, 
some  others  are  not  yet,  and  others  again  by  their 
nature  never  can  or  will  be. 

Judge  Redfield  points  out  clearly  the  well  known 
objections  to  codification:  "'This  is  one  of  the  great 
excellencies  of  the  unwritten  'aw  above  a  written 
code.  The  general  principles  of  the  former  are  al- 
lowed to  embrace  new  cases  as  they  arise,  without 
regard  to  the  enumerations  already  made  under  it ; 
while  the  latter  having  been  reduced  to  formal 
definitions,  necessarily  excludes  all  cases  not  antic- 
ipated at  the  time  these  definitions  were  made."  12 
Amer.  L.  Reg.  N.  S.  185.  On  the  other  hand  it  is 
said   that   the   opposition    thereto  of  many   English 


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lawyers  "is  supported,  If  not  Justified,  by  the  fear 
that  the  courts  would  put  a  narrow  construction  on 
the  articles  of  a  Code."    14  L.  Q.  R.  9. 

"However  much  we  may  codify  the  law  into  a 
series  of  seemingly  self-sufficient  propositions,  those 
propositions  will  be  but  a  phase  in  a  continuous 
growth.  To  understand  their  growth  fully,  to  know 
how  they  will  be  dealt  with  by  Judges  trained  in 
the  past  which  the  law  embodies,  we  must  ourselves 
know  something  of  that  past.  The  history  of  what 
the  law  has  been  is  necessary  to  the  knowledge  of 
what  the  law  is."  O.  W.  Holmes,  The  Common 
Law,  27. 

See  2  Sel.  Essays  in  Anglo-Amer.  Leg.  Hist,  by 
Charles  M.  Hepburn,  on  the  Historical  Develop- 
ment of  Code  Pleading  (1897). 

The  discussions  on  this  subject  have  called  atten- 
tion to  a  subject  formerly  little  considered,  but 
which  is  of  fundamental  importance  to  the  success- 
ful preparation  of  a  code— the  matter  of  statutory 
expression.  There  is  no  species  of  composition 
which  demands  more  care  and  precision  than  that 
of  drafting  a  statute.  The  writer  needs  not  only  to 
make  his  language  intelligible,  he  must  make  it  in- 
capable of  misconstruction.  When  it  has  passed 
to  a  law,  it  is  no  longer  his  intent  that  is  to  be  con- 
sidered, but  the  intent  of  the  words  which  he  has 
used  ;  and  that  intent  is  to  be  ascertained  under 
the  strong  pressure  of  an  attempt  of  the  advocate 
to  win  whatever  possible  construction  may  be  most 
favorable  to  his  cause.  The  true  safeguard  Is  found 
not  in  the  old  method  of  accumulating  synonyms 
and  by  an  enumeration  of  particulars,  but  rather — 
as  is  shown  by  those  American  codes  of  which  the 
Revised  Statutes  of  New  York  and  the  revision  of 
Massachusetts  are  admirable  specimens— by  concise 
but  complete  statement  of  the  full  principle  in  the 
fewest  possible  words,  and  the  elimination  of  de- 
scription and  paraphrase  by  the  separate  statement 
of  necessary  definitions.  One  of  the  rules  to  which 
the  New  York  revisers  generally  adhered,  and 
which  they  found  of  very  great  importance,  was  to 
confine  each  section  to  a  single  proposition.  In  this 
way  the  intricacy  and  obscurity  of  the  old  statutes 
were  largely  avoided.  The  reader  who  wishes  to 
pursue  this  interesting  subject  will  find  much  that 
is  admirable  in  Coode's  treatise  on  Legislative  Ex- 
pression (Lond.  1845)  (reprinted  in  Brightly's  Pur- 
don's  Digest,  Penna.).  The  larger  work  of  Gael 
(Legal  Composition,  Lond.  1840)  is  more  especially 
adapted  to  the  wants  of  the  English  profession. 

Great  Britain.  There  has  not  been  in 
England  any  general  codification  in  the  mod- 
ern sense. 

There  were  some  early  English  so-called 
oodes  which  were  of  the  former  character. 
The  first  code  in  England  appears  to  have 
been  about  the  year  600  by  Athelbert,  king 
of  the  Kentings.  His  laws  have  come  down 
to  us  only  in  a  copy  made  after  the  Norman 
Conquest.  They  consist  of  ninety  brief  sen- 
tences. In  the  end  of  the  7th  century  the 
west  Saxons  had  written  laws, — the  laws 
of  Ine.  The  next  legislator  is  Alfred  the 
Great,  about  two  centuries  later.  Later 
came  the  code  of  Cnute.  1  Social  England 
165. 

These  are  merely  of  historical  interest. 
But  in  recent  years  there  has  been  in  Eng- 
land as  elsewhere  an  interest  in  the  subject 
of  the  arrangement,  classification,  and  sim- 
plification of  the  law  which  found  expres- 
sion not  only  in  words  but  in  legislative 
action.  The  necessity  for  some  reform,  and 
the  conditions  which  have  forced  the  sub- 
ject upon  the  attention  of  the  English  Bar 
and   Parliament,  are  well  expressed  by  Mr. 


Crackanthorpe    In    his    address    before    the 
Amer.    Bar  Assoc.    - 1 

"We  have  in  our  libraries  a  number  of  mono- 
graphs, dealing  with  the  subheads  of  Law  In  the 
most  minute  detail— books  on  Torts  and  Contracts, 
on  Settlements  and  Wills,  on  Purchases  and  Sales, 
on  Specific  Performance,  on  Negotiable  ! 
ments,  and  so  forth.  We  have  also  many  valuable 
compendia,  or  institutional  treatises,  dealing  with 
the  Law  as  a  whole.  Each  and  all  of  these,  how- 
ever, bear  witness  to  the  disjointed  character  of  our 
Jurisprudence.  The  numerous  monographs  o\ 
and  jostle  each  other,  like  so  many   i  ■  boats 

tossing  at  random  on  the  surface  of  a  win>:- 
lake,  while  the  institutional  treatises,  in  their  en- 
deavor to  be  exhaustive,  fail  in  point  of  logical  ar- 
rangement, Just  as  a  vessel  overladen  with  a  mixed 
cargo  fails  to  get  it  properly  stowed  away  in  the 
hold.  Some  day,  perhaps,  we  shall  produce  a  Corpus 
Juris  which  will  reduce  our  legal  wilderness  to  or- 
der, and,  by  grubbing  up  the  decayed  trees,  enable 
us  to  discern  the  living  forest.  We  have  already  di- 
gested with  success  portions  of  our  civil  law,  nota- 
bly that  relating  to  bills  of  exchange  and  a  part  of 
that  relating  to  partnership  and  trusts.  These  ex- 
periments are  likely  to  be  renewed  from  time  to 
time,  and  I  doubt  not  that  ultimately  we  shall  have 
a  civil  code  as  complete  as  that  which  has  just  been 
promulgated  in  Germany.  At  present  we  have  not 
even  a  criminal  code  such  as  you  have  In  the  State 
of  New  York  and  as  is  to  be  found  in  most  conti- 
nental countries,  all  that  has  been  done  in  that  di- 
rection being  to  pass  five  consolidating  statutes 
dealing  with  larceny  and  a  few  other  common  of- 
fences." 

In  addition  to  those  mentioned  the  parti.il 
codes  thus  far  adopted  in  England  include 
the  Bills  of  Sale  Act,  the  Employers'  Lia- 
bility Act,  and  others,  and  the  India  code 
is  the  result  of  a  very  successful  effort  to 
codify  specific  titles  of  the  common  law, 
and  it  is  now  constantly  referred  to  in 
common-law  jurisdictions  as  the  best  con- 
sidered expression  of  the  rules  of  the  com- 
mon law  on  subjects  covered  by  it  at  the 
time  of  its  adoption.  In  addition  to  the 
partial  or  special  English  codes  referred  to, 
the  course  which  the  discussion  upon  codi- 
fication has  taken  in  that  country  has  led 
to  the  systematic  collection  and  revision  of 
statutes  upon  particular  subjects.  L'nder 
the  direction  of  Lord  Cairns,  the  statutes  of 
England  from  1  Henry  III.  have  been  sys- 
tematically revised  by  a  committee,  am 
published  as  the  "Revised  Statutes." 

In  other  British  dependencies  there  have  been 
movements  in  the  direction  of  codification  more 
pronounced  in  some  instances  than  those  in  Eng- 
land. In  Hong  Kong  and  at  the  Straits  Settlements 
codes  of  civil  procedure  were  adopted  on  the  lines 
of  the  New  York  code,  which  was  also  utilized  in 
the  Indian  code. 

The  English  Judicature  Acts  of  1873  and  1873  ac- 
complished many  of  the  reforms  in  the  line  of  sim- 
plification. Its  chief  merit  was  the  fusion  of  law 
and  equity. 

United  States.  In  this  country  the  sub- 
ject has  received  no  less  attention  and  has 
presented  obstacles  of  less  ma  gnitude.  Codes 
and   revisions  have  been  enacted  as  follows: 

The  Revision  of  Federal  Statutes  in  1873, 
which  went  into  effect  June  22,  1874,  was 
by  act  of  congress  declared  to  constitute 
the  law  of  the  land;  the  pre-existing  laws 
were  thereby  repealed,  and  ceased  to  be  of 


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effect.  By  subsequent  acts  of  congress,  cer- 
tain errors  in  this  revision  were  corrected. 
A  new  edition  of  the  Revision  of  1873  was 
authorized  by  acts  of  March  2,  1877,  and 
March  9,  1878;  this  is  not  a  new  enact- 
ment, but  merely  a  new  publication;  it 
contains  a  copy  of  the  Revision  of  1873,  with 
certain  specific  alterations  and  amendments 
made  by  subsequent  enactments  of  the 
43d  and  44th  congresses,  incorporated  ac- 
cording to  the  judgment  and  discretion  of 
the  editor,  under  the  authority  of  the  acts 
providing  for  his  appointment.  These  alter- 
ations, or  amendments,  were  merely  indi- 
cated by  italics  and  brackets.  The  act  of 
March  9.  1878,  provides  that  the  edition  of 
1878  shall  be  legal  evidence  of  the  laws 
therein  contained  in  all  the  courts  of  the 
United  States,  and  of  the  several  states  and 
territories,  "but  shall  not  preclude  refer- 
ence to,  nor  control,  in  case  of  any  discrep- 
a  ncy.  the  effect  of  any  original  act  as  passed 
by  congress  since  the  first  day  of  December, 
1873." 

The  supplement  of  1S81  is  official  to  a  lim- 
ited extent.  The  provisions  in  regard  to  it 
are  as  follows:  "The  publication  herein  ap- 
thorized  shall  be  taken  to  be  prima  facie 
evidence  of  the  laws  therein  contained  in 
all  the  courts  of  the  United  States,  and  of 
the  several  states  and  territories  therein; 
but  shall  not  preclude  reference  to,  nor 
control,  in  case  of  any  discrepancy,  the  ef- 
fect of  any  original  act  as  passed  by  con- 
gress: Provided,  that  nothing  herein  contain- 
ed shall  be  construed  to  change  or  alter  any 
existing  law ;"  21  Stat.  L.  388.  See  Wright 
v.  U.  S.,  15  Ct.  CI.  80,  where  the  subject  is 
explained  by  Richardson,  J.,  one  of  the  com- 
pilers. Volume  I,  Supplement  to  the  Re- 
vised Statutes,  contains  all  the  permanent 
general  laws  enacted  from  the  passage  of 
the  Revised  Statutes  in  1874,  to  and  includ- 
ing the  fifty-first  congress,  which  expired 
in  1891,  and  supersedes  Vol.  I.,  prepared 
under  resolution  of  June  7.  1880.  The  pub- 
lication is  prima  facie  evidence  of  the  laws 
therein  contained  in  all  of  the  courts  of  the 
United  States.  Vol.  II.  of  the  Supplement 
contains  the  general  laws  of  the  fifty-second 
and  subsequent  congresses. 

The  laws  of  the  United  States  relating  to 
the  judiciary  were  enacted  into  the  Judicial 
Code,  March  3,  1911,  and  went  into  effect 
January  1,  1912;  those  relating  to  crimes 
were  enacted  into  the  Criminal  Code,  March 
4,  1909,  and  went  into  effect  January  1,  1910. 

Colonial,  Codes.  Of  these  there  were  sev- 
eral adopted  in  the  colonies  prior  to  the 
Revolution. 

In  1665  a  code  prepared  by  Lord  Chan- 
cellor Clarendon,  called  the  "Duke's  Laws," 
was  promulgated  and  went  into  operation 
at  Long  Island  and  West  Chester,  New 
York.  Afterwards  its  provisions  slowly 
made  their  way  in  New  York  and  the  other 
provinces. 


It  was  an  attempt  to  state  the  law  relat- 
ing to  the  rights  of  persons  and  property, 
and  of  procedure  both  civil  and  criminal. 

The  Massachusetts  colony,  in  March,  1634, 
appointed  a  committee  to  revise  the  law. 
Other  committees  were  appointed  in  1635 
and  1637.  Maryland  adopted  a  code  in  1639. 
In  Massachusetts  in  1641,  a  code  of  laws 
was  adopted  which  was  called  "The  Liber- 
ties of  the  Massachusetts  Colony  in  New 
England."  Connecticut  adopted  a  code  in 
1650,  chiefly  copied  from  the  Massachusetts 
code.  Virginia  appears  to  have  adopted  a 
body  of  laws  in  1611,  and  in  1656  their  laws 
were  reduced  into  one  volume. 

State  Codes.  New  York  is  the  pioneer  in 
the  work  of  codification.  In  that  state  the 
first  act  relating  to  procedure  after  the  or- 
ganization of  state  government  was  passed 
March  16,  1778.  Various  other  acts  were 
passed  between  1801  and  1S13.  In  1813  there 
was  a  general  revision  of  the  law,  and  the 
subject  of  practice  of  the  law.  In  182S  the 
revisers  collected  into  one  act  the  various 
provisions  relating  to  practice  in  all  the 
courts  which  was  made  a  part  of  the  Re- 
vised Statutes.  It  is  said  that  this  part  of 
the  Revised  Statutes  constituted  the  first 
code  of  civil  procedure  in  New  York.  It 
embraced  nearly  all  the  practice  in  all  the 
courts  and  has  been  the  basis  of  subsequent 
code  revision.  In  1848  the  "Code  of  Pro- 
cedure" was  adopted.  David  Dudley  Field, 
the  eminent  writer  on  this  subject,  had  be- 
gun his  work  on  law  reform  in  1839.  In 
1848  a  commission  of  which  he  was  chair- 
man produced  the  "Code  of  Procedure," 
containing  391  sections,  which  was  adopted 
in  that  year.  This  code  was  largely  amend- 
ed in  1849,  and  has  received  frequent  amend- 
ments at  various  times  since  that  year. 

The  laws  of  Pennsylvania  were  extensive- 
ly revised  in  1833-1836,  upon  the  Report  of 
Commissioners  appointed  by  the  legislature, 
William  Rawle,  Joel  Jones  and  Thomas  I. 
Wharton. 

Codification  has  proceeded  in  many  states, 
especially  in  procedure.  The  list  of  states 
cannot  be  given  here. 

The  enactment  of  uniform  laws  on  special 
branches  of  the  law,  in  many  states  and 
in  England,  is  a  movement  towards  codifica- 
tion upon  proper  lines.  The  act  on  Ne- 
gotiable Instruments  has  been  passed  in 
nearly  all  the  states ;  the  Warehouse  Re- 
ceipt Act,  the  Sales  Act,  Bills  of  Lading 
Act  and  the  Stock  Transfer  Act  have  been 
passed  in  many  states. 

In  Louisiana,  the  civil  law  prevails  and 
there  are  complete  codes  framed  there- 
under. One  feature  of  the  Louisiana  code 
should  be  carefully  noted.  Art.  21  declares 
that  "in  all  civil  matters  where  there  is  no 
express  law,  the  judge  is  bound  to  proceed 
and  decide  according  to  equity.  To  decide 
equitably  an  appeal  is  to  be  made  to  natural 
law  and  reason,  or  received  usages,  where 


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positive  law  is  silent."  This  code  was  adopt- 
ed in  1824  and  took  effect  in  1825,  the  re- 
vision of  1870  being  the  same  code,  with  the 
slavery  provisions  omitted,  and  with  such 
amendments  as  had  previously  been  made. 
It  is  said  that  the  power  above  quoted  has 
never  been  exercised  except  to  furnish  a 
remedy  or  mode  of  procedure. 

Foreign  Countries.  On  the  continent  of 
Europe  the  systems  of  law  are  generally 
founded  upon  the  civil  law,  and  each  coun- 
try has  its  own  code,  which  is  usually  an 
adaptation  in  whole  or  in  part  of  Roman 
Law.  These  codes  are  different  in  char- 
acter, falling  within  sometimes  one  and 
sometimes  another  of  the  classes  above  enu- 
merated, as  they  were  intended  to  be  scien- 
tific collections  and  classifications  of  ex- 
isting law  or  to  exclude  new  legislation. 

The  modern  codes  of  Europe  were  pre- 
ceded by  periods  of  codification,  such  as 
that  which  Maine  designates  the  "era  of 
codes,"  in  which,  throughout  the  world,  so 
far  as  the  sphere  of  Roman  and  Hellenic 
influence  extended,  there  appeared  codes  of 
the  class  of  which  The  Twelve  Tables  is  the 
conspicuous  example;  Maine,  Anc.  L.  2,  13; 
and  the  many  codes  of  the  Middle  Ages 
based  upon  Roman  law  modified  by  local 
customs.  There  were  also  a  great  number 
of  codes  of  maritime  law,  which  in  its  na- 
ture was,  and  still  is,  well  adopted  to  this 
exact  form  of  expression,  many  of  which  are 
collected  in  the  Black  Book  of  the  Admiral- 
ty, which  has  been  said  to  contain  all  mari- 
time codes  known  at  the  time.  Below  are 
briefly  referred  to  the  best  known  codes, 
ancient  and  modern. 

Amalpiiitan  Taree.  Amalphi,  on  the 
Adriatic  Sea,  is  said  to  have  had  a  Mari- 
time Court  in  the  10th  century  presided 
over  by  the  consuls  of  the  sea.  A  manu- 
script containing  the  ordinances  of  the  Mari- 
time Court  of  Amalphi  was  discovered  in 
the  Imperial  Library  at  Vienna  in  1843. 
And  has  been  called  by  that  name.  Its  date 
is  the  11th  century.  Printed  in  Black  Book 
of  the  Admiralty,  Vol.  IV.  See  The  Scotia, 
14  Wall.   (U.  S.)  170,  20  L.  Ed.  822. 

Austrian.  The  Civil  Code  was  promulgat- 
ed July  7,  1810.  The  first  part  of  it  was 
published  and  submitted  to  the  Universities 
and  the  courts  of  justice,  and  some  parts 
having  been  found  wholly  unsuited  to  the 
purpose,  were  by  his  successor  abrogated. 
It  is  founded  in  a  great  degree  upon  the 
Prussian.  The  Penal  Code  (1852)  is  said  to 
adopt  to  some  extent  the  characteristics  of 
the  French  Penal  Code. 

The  civil  code  originated  In  an  ordinance  Issued 
by  Maria  Theresa  in  1753,  the  avowed  objects  being 
to  provide  for  uniformity  of  the  law  in  the  prov- 
inces and  digest  the  existing  law.  The  result  was 
unsatisfactory  and  another  commission  authorized 
Counsellor  Harten  to  construct  a  code,  of  which  the 
conditions  prescribed  are  quite  worthy  of  repeti- 
tion. They  were:  1.  To  abstain  from  doctrinal 
development.  2.  To  have  in  view  contestations  of 
the  most  frequent  occurrence.    3.  To  be  clear  in  ex- 


pression. 4.  To  be  governed  by  natural  equity 
rather  than  the  principles  of  the  Roman  Law. 
5.  To  simplify  the  laws  and  to  refrain  from  too 
much  subtlety  in  details. 

(UNMAN.  The  Lex  Romana  Burgun- 
dionum  seems  to  be  the  law-book  that  Gun- 
dobad  promised  to  his  Roman  subjects.  He 
died  in  51G.  They  were  East  I 
tered  among  the  Roman  provincials. 
in  it  were  taken  from  the  three  Roman 
codices,  from  the  current  abridgments  of  im- 
perial constitutions  and  from  the  works  of 
<Jaius  and  I'aulus.  Little  that  is  good  has 
been  said  of  it.  Maitland,  in  1  Sel.  Essays 
in  Aimlo-Amer.  Leg.  Hist.  14. 

Co.nsolato  oel  Mare.  A  code  of  mari- 
time law  of  high  antiquity  and  great  celeb- 
rity. 

A  collection  of  the  customs  of  the  sea  observed 
In  the  Consular  Court  of  Barcelona.  It  received 
many  additions  and  acquired  the  name  of  the  "Con- 
sulate" early  in  the  loth  century.  The  Book  of  the 
Consulate  was  printed  at  Barcelona  in  the  Catalan 
tongue  in  1494  and  was  drawn  up  by  the  notary  of 
the  Consular  Court  for  the  use  of  the  Consuls  of 
the  sea  at  Barcelona.  It  dates  back  to  the  11th 
century.  T.  C.  Mears  in  Roscoe,  Adm.  Jur.  (3d 
ed.)  ;  Sir  Travers  Twiss,  In  2  Black  Book  of  Adm. 
Lord  Mansfield  quotes  from  it  as  containing  a  valu- 
able body  of  maritime  law;  2  Burr.  889.  Lord 
Stowell  refers  to  it  in  1  C.  Rob.  43,  and  1  Dods.  116. 
The  edition  of  Pardessus,  in  his  Collection  de  Lois 
Maritimes  (vol.  2),  is  deemed  the  best.  There  is 
also  a  French  translation  by  Boucher,  Paris,  1808. 
See  also,  Reddie,  Hist,  of  Mar.  Com.  171  ;  Marvin's 
Leg.  Bibl.;    J.  Duer,  Ins.;    7  N.  A.  Rev.  330. 

China.  Ta  Ching  Lu  Li  (literally,  Stat- 
ute Laws  and  Usages  of  the  Great  Ching 
Dynasty),  generally  known  as  the  Penal 
Code.  Compiled  in  1047.  A  remarkable  col- 
lection of  imperial  proclamations,  phil< 
cal  dissertations,  positive  laws  and  proce- 
dure both  civil  and  penal  from  remotest 
times.  There  is  an  English  translation  by 
G.  T.  Staunton,  1S10,  London. 

Egypt.  Code  of  International  Tribunals 
of  "Mixed  Courts."  See  Mixed  Tkibunaxs. 
These  are  codes  of  substantive  law  and  pro- 
cedure in  civil  and  criminal  matters  closely 
following  the  Code  Napoleon.  See  "The  Law 
Affecting  Foreigners  in  Egypt"  by  J.  H. 
Scott,  1907,  London;  Ilertslet,  Commercial 
Treaties,   vol.  XIV,  p.  303. 

French  Codes.  The  chief  French  codes 
of  the  present  day  are  five  in  number,  some- 
times known  as  Lcs  Cinq  Codes.  They  were 
in  great  part  the  work  of  Napoleon,  and  the 
first  in  order  bears  his  name.  They  are  all 
frequently  printed  in  one  duodecimo  vol- 
ume. These  codes  do  not  embody  the  whole 
French  law,  but  minor  codes  and  a  number 
of  scattered  statutes  must  also  be  resorted 
to  upon  special  subjects. 

Code  Civil,  or  Code  Napoltion,  is  composed 
of  thirty-six  laws,  the  first  of  which  was 
passed  in  1S03  and  the  last  in  1S04,  which 
united  them  all  in  one  body,  under  the 
name  of  Code  Civil  des  Francais. 

The  first  steps  towards  Its  preparation  were  taken 
In  1793,  but  it  was  not  prepared  till  some  years  sub- 
sequently,  and  was   finally  thoroughly  discussed   in 


CODE 


512 


CODE 


all  its  details  by  the  Court  of  Cassation,  of  which 
Napoleon  was  president  and  in  the  discussions  of 
which  he  took  an  active  part  throughout.  In  1807  a 
new  edition  was  promulgated,  the  title  Code  Napo- 
leon being  substituted.  In  the  third  edition  (1S16) 
the  old  title  was  restored  ;  but  in  1852  (the  Second 
Empire)  it  was  again  displaced  by  that  of  Napoleon 
and  after  the  Republic  came  in,  in  1870,  it  again 
became  the   Code   Civil. 

Under  Napoleon's  reign  it  became  the  law  of  Hol- 
land, of  the  Confederation  of  the  Rhine,  Westphalia, 
Bavaria,  Italy,  Naples,  Spain,  etc.  It  has  under- 
gone great  amendment  by  laws  enacted  since  it  was 
established.  It  is  divided  into  three  books.  Book  1, 
Of  Persons  and  the  enjoyment  and  privation  of 
civil  rights.  Book  2,  Property  and  its  different 
modifications.  Book  3,  Different  ways  of  acquiring 
property.  Prefixed  to  it  is  a  preliminary  title,  Of 
the  Publication,  Effects,  and  Application  of  Laws  in 
General. 

One  of  the  most  perspicuous  and  able  commenta- 
tors on  this  code  is  Toullier,  frequently  cited  in  this 
work. 

There  is  an  English  translation  by  Cachard  and  a 
later  one  by  Wright. 

Writing  from  the  standpoint  of  a  common-law 
lawyer,  James  C.  Carter  (the  Law,  etc.,  303)  refers 
to  the  Code  Napoleon,  so  far  as  establishing  a  sys- 
tem of  law  certain,  easy  to  be  learned  and  easy  to 
be  administered,  as  a  failure,  citing  Amos,  An 
English  Code,  as  holding  the  same  view.  For  a  his- 
tory of  It,  see  40  Amer.  L.  Rev.  833,  by  U.  M.  Rose ; 
49  Amer.  L.  Reg.   (o.   s.)  127,  by  W.  W.  Smithers. 

Code  de  Procedure  Civil.  That  part  of  the 
code  which  regulates  civil  proceedings. 

It  is  divided  into  two  parts.  Part  First  consists  of 
five  books:  the  first  of  which  treats  of  justices  of 
the  peace;  the  second,  of  inferior  tribunals;  the 
third,  of  royal  (or  appellate)  courts;  the  fourth,  of 
extraordinary  means  of  proceeding;  the  fifth,  of 
the  execution  of  judgments.  Part  Second  is  divided 
into  three  books,  treating  of  various  matters  and 
proceedings   special   in  their   nature. 

Code  de  Commerce.  The  code  for  the  reg- 
ulation of  commerce. 

This  code  was  enacted  in  1807.  Book  1  is  entitled, 
Of  Commerce  in  General.  Book  2,  Maritime  Com- 
merce. The  whole  law  of  this  subject  is  not  em- 
bodied in  this  book.  Book  3,  Failures  and  Bank- 
ruptcy. This  book  was  very  largely  amended  by 
the  law  of  28th  May,  1838.  Book  4,  Of  Commercial 
Jurisdiction, — the  organization,  jurisdiction  and  pro- 
ceedings of  commercial  tribunals.  This  code  is, 
in  one  sense,  a  supplement  to  the  Code  Napoleon, 
applying  the  principle  of  the  latter  to  the  various 
subjects  of  commercial  law.  Sundry  laws  amend- 
ing it  have  been  enacted  since  1807.  Pardessus  is 
one  of  the  most  able  of  its  expositors.  See  Goi- 
rand,   Code  of  Commerce. 

Code  d' Instruction  Criminelle.  The  code 
regulating  procedure  in  criminal  cases,  tak- 
ing that  phrase  in  a  broad  sense. 

Book  1  treats  of  the  police;  Book  2,  of  the  admin- 
istration of  criminal  justice.  It  was  enacted  in 
1808  to  take  effect  with  the  Penal  Code  in  1811. 

Code  P6nal.    The  penal  or  criminal  code. 

Enacted  in  1810.  Book  1  treats  of  penalties  In 
criminal  and  correctional  cases,  and  their  effects ; 
Book  2,  of  crimes  and  misdemeanors,  and  their 
punishment ;  Book  3,  offences  against  the  police 
regulations,  and  their  punishment.  Important 
amendments  of  this  code  have  been  made  by  subse- 
quent legislation. 

Code  IMilitaire.  The  military  code,  sub- 
stantive and  procedural,  for  the  army.  Pro- 
mulgated in  1857. 

There  is  also  a  Code  Forestier;  and  the 
name  code  has  been  inaptly  given  to  some 
private  compilations  on  other  subjects. 


Gentoo  Code.  A  translation  of  the  laws  of 
the  Hindus  made  during  the  administration 
of  Warren  Hastings  as  Governor-General  of 
India,  and  prior  to  the  translation  of  the  In- 
stitutes of  Manu. 

The  formulation  or  Hindu  law  in  those  institutes 
(q.  v.  supra)  had  the  same  effect  in  India  as  had 
always  resulted  from  the  written  expression  of  the 
law.  There  was  gradually  formed  a  new  body  of 
law  consisting  of  decisions  and  opinions  of  learned 
men  upon  the  construction  of  written  law  closely 
resembling  the  body  of  law  which  was  engrafted 
upon  the  Institutes  of  Justinian.  The  translation 
of  those  laws  in  the  Gentoo  code  was  followed  by  a 
further  digest  under  the  authority  of  the  English 
government,  so  that  a  very  complete  body  of  Hindu 
law  grew  up,  which  discloses  a  system  of  procedure 
resembling  in  a  marked  degree  that  of  the  present 
day,  comprising,— a  complaint,  a  summons  or  cita- 
tion, an  appearance,  a  hearing  of  both  parties,  the 
presence  of  attorneys,  and  a  law  of  evidence  and 
method  of  examining  witnesses. 

There  seems  also  to  have  been  In  India  in  very 
early  times  a  system  of  natural  arbitration  by 
neighbors,  probably  the  earliest  effort  at  an  admin- 
istration of  justice  and  resembling  the  ancient  coun- 
ty court  of  the  Saxons.    See  Manu,  infra. 

Gebman  Code.  In  the  current  which  swept 
over  Europe  during  the  sixteenth  century, 
substituting,  as  Professor  Sohm  phrases  it, 
"the  revived  spirit  of  antiquity  for  mediaeval 
conceptions  and  ideas,"  Germany  participat- 
ed in  the  changes  which  took  place  in  all  de- 
partments of  science.  Then  the  Roman  law 
was  "received"  in  that  country,  and  from 
that  time  it  has  been  a  controlling  factor  in 
the  jurisprudence  of  the  countries  which 
form  the  German  Empire.  In  certain  territo- 
rial limits  over  which  the  Prussian  Land- 
recht  (see  Prussian  Code)  held  sway  "the 
formal  validity  of  the  Corpus  Juris  Civilis 
has  been  expressly  set  aside,"  but  even  there 
"the  force  of  Roman  principles  of  law  has 
nevertheless  remained  substantially  unim- 
paired within  large  departments  of  German 
jurisprudence."  Particularly  is  the  science 
of  the  Roman  private  law  imbedded  in  the 
German  jurisprudence,  and  indeed  the  exist- 
ence of  law  as  a  science  in  Germany  dates 
from  the  introduction  of  the  Roman  law. 
There  were  no  preconceived  ideas  with  which 
to  conflict,  and  it  was  accepted  by  a  national 
intellect  unprejudiced  by  any  preconceived 
ideas.     See  Prussian  Code,  infra. 

The  completion  of  twenty-five  years  of  the 
life  of  the  Empire  has  been  made  the  occa- 
sion of  the  construction  and  promulgation  of 
a  new  German  code  which  has  been  in  the 
course  of  preparation  for  several  years.  It 
is  an  example  for  the  most  part  of  anteced- 
ent laws,  though  of  an  arrangement  novel 
in  various  respects.  The  civil  code,  having 
passed  the  Reichstag  and  received  the  ap- 
proval of  the  emperor,  was  duly  promulgated 
August  19,  1896,  to  go  into  effect  January  1, 
1900,  at  the  same  time  with  other  special 
codes,  including  those  of  Civil  Procedure 
(1877),  Insolvency,  Assignments,  Arbitrations, 
and  the  like.  See  Guide  to  Law  of  Germany, 
published  by  the  Library  of  Congress  (1912). 

There  is  an  English  translation  of   "The 


CODE 


513 


CODE 


Civil  Code  of  the  German  Empire"  by  Wal- 
ter Loewy,  published  by  a  joint  Committee 
of  Pennsylvania  Bar  Association  and  Uni- 
versity of  Pennsylvania,  1009. 

F.  W.  Maitland  said  of  the  Civil  Code: 
"Never  yet,  I  think,  has  so  much  first-rate 
brain  power  been  put  into  any  actual  legisla- 
tion ;"    3  Collected  Papers  474. 

Gregorian.  An  unofficial  compilation  of 
the  rescripts  of  the  Roman  emperors.  It  is 
said  to  have  been  made  in  the  Orient  per- 
haps about  A.  D.  295.  Maitland  in  14  L.  Q. 
R.  15.     It  is  not  now  extant. 

The  Theodosian  Code,  which  was  promulgated 
nearly  a  century  afterwards,  was  a  continuation  of 
this  and  of  the  collection  of  Hermogenes.  The  chief 
interest  of  all  these  collections  Is  In  their  relation 
to  their  great  successor  the  Justinian  Code. 

Guidon  de  la  Mer.  A  collection  of  sea 
laws  drawn  up  towards  the  close  of  the  lGth 
century,  probably  at  the  instance  of  the  mer- 
chants of  Rouen. 

Hammurabi,  Code  of.  A  collection  of  de- 
cisions in  the  civil  courts  and  adapted  to 
general  use  in  Babylonia,  about  2250  i'>.  C. 
It  was  discovered  in  the  Acropolis  of  Susa. 
A  translation  by  C.  H.  W.  Jones  was  pub- 
lished in  1903. 

Hanse  Towns,  Laws  of  the.  A  code  of 
maritime  law  established  by  the  Hanseatic 
towns.    See  Hanseatic  League. 

It  was  first  published  in  German,  at  Lubec,  in 
1597.  In  an  assembly  of  deputies  from  the  several 
towns,  held  at  Lubec,  May  23,  1614,  it  was  revised 
and  enlarged.  The  text,  with  a  Latin  translation, 
was  published  with  a  commentary  by  Kuricke;  and 
a  French  translation  has  been  given  by  Cleirac  in 
Us  et  Coutumes  de  la  Mer.  An  English  version  may 
be  found  in  1  Peters,  Adm.  xciii,  and  in  30  Fed.  Cas. 
U97. 

Henri  (French).  The  best-known  of  sever- 
al collections  of  ordinances  made  during  the 
sixteenth,  seventeenth,  and  eighteenth  centu- 
ries, the  number  of  which  in  part  both  form- 
ed the  necessity  and  furnished  the  material 
for  the  Code  Napoleon. 

Henri  (Haytien).  A  very  judicious  adap- 
tation from  the  Code  Napoteon  for  the  Hay- 
tiens.  It  was  promulgated  in  1S12  by  Chris- 
tophe  (Henri  I.). 

Hermogenian.  An  unofficial  compilation 
made  in  the  fourth  century,  supplementary 
to  the  code  of  Gregorius.  It  is  not  now  ex- 
tant. It  is  said  to  have  been  made  in  the 
Orient,  perhaps  between  A.  D.  314  and  324, 
but  these  dates  are  uncertain.  Maitland  in 
14  L.  Q.  R.  15. 

Japan.  In  1SS0  a  Penal  Code  and  a  Code 
of  Penal  Procedure  were  adopted,  in  1800  a 
Commercial  Code  (revised  in  1S00),  and  in 
1893  a  Civil  Code,  became  effective.  There 
is  an  English  translation  of  the  Civil  Code 
by  L.  H.  Loenholm,  Tokio,  1906,  3d  ed..  and 
another  with  annotations  by  J.  E.  de  Becker, 
London,  1910.  There  is  an  English  transla- 
tion of  the  Commercial  Code  by  Yang  Yin 
Hang  published  in  1911  by  the  University  of 
Pennsylvania.  The  principles  are  derived 
Bouv.— 33 


from  German  and  French  sources,  with  the 
former  predominating  in  the  Commercial, 
and  the  latter  in  the  Civil.   I 

Justinian  Code.     A  collection  of  imperial 
ordinances  compiled  by  order  of  the  en. 
Justinian. 

All  the  Judicial  wisdom  of  the  Roman  <;.ilizatlon 
which  la  of  importance  to  the  American  lawyer  is 
embodied  in  the  compilations  to  which  J u 
gave  his  name,  and  from  which  that  name  has  re- 
ceived its  lustre.  Of  these,  first  in  contemporary 
importance,  if  not  first  in  magnitude  and  present 
Interest,  was  the  Code.  In  the  first  year  of  his 
reign  he  commanded  Tribonian,  a  statesman  of  his 
court,  to  revise  the  imperial  ordinances.  The  first 
result,  now  known  as  the  Codex  Yetus,  is  not  extant 
It  was  superseded  a  few  years  after  its  promulga- 
tion by  a  new  and  more  complete  edition.  Al 
it  is  this  alone  which  is  now  known  as  the  Code  of 
Justinian,  yet  the  Pandects  and  the  Institutes  which 
followed  it  are  a  part  of  the  same  system,  declared 
by  the  same  authority;  and  the  three  together  form 
one  codification  of  the  law  of  the  Empire.  The  first 
of  these  works  occupied  Tribonian  and  nine  asso- 
ciates fourteen  months.  It  is  comprised  in  twelve 
divisions  or  books,  and  embodies  all  that  was  deem- 
ed worthy  of  preservation  of  the  imperial  statutes 
from  the  time  of  Hadrian  down.  The  Institutes  is 
an  elementary  treatise  prepared  by  Tribonian  and 
two  associates  upon  the  basis  of  a  similar  work  by 
Gaius,  a  lawyer  of  the  second  century. 

The  Pandects,  which  were  made  public  about  a 
month  after  the  Institutes,  were  an  abridgment  of 
the  treatises  and  the  commentaries  of  the  la 
They  were  presented  in  fifty  books.  Tribonian  and 
the  sixteen  associates  who  aided  him  in  this  part  of 
his  labors  accomplished  this  abridgment  in  three 
years.  It  has  been  thought  to  bear  obvious  marks 
of  the  haste  with  which  it  was  compiled;  but  it  is 
the  chief  embodiment  of  the  Roman  law,  though 
not  the  most  convenient  resort  for  the  modern 
student  of  that  law. 

Tribonian  found  the  law,  which  for  fourteen  cen- 
turies had  been  accumulating,  comprised  in  two 
thousand  books,  or— stated  according  to  the  Roman 
method  of  computation— in  three  million  sentences. 
It  is  probable  that  this  matter,  if  printed  in  law 
volumes  such  as  are  now  used,  would  fill  from  three 
to  five  hundred  volumes.  The  comparison,  to  be 
more  exact,  should  take  into  account  treatises  and 
digests,  which  would  add  to  the  bulk  of  the  collec- 
tion more  than  to  the  substance  of  the  material. 
The  commissioners  were  instructed  to  extract  a 
series  of  plain  and  concise  laws,  in  which  there 
should  be  no  two  laws  contradictory  or  alike.  In 
revising  the  imperial  ordinances,  they  were  em- 
powered to  amend  in  substance  as  well  as  in  form. 

The  codification  being  completed,  the  emperor 
decreed  that  no  resort  should  be  had  to  the  earlier 
writings,  nor  any  comparison  be  made  with  them. 
Commentators  were  forbidden  to  disfigure  the  new 
with  explanations,  and  lawyers  were  forbidden  to 
cite  the  old.  The  imperial  authority  was  sufficient 
to  sink  into  oblivion  nearly  all  the  previously  exist- 
ing sources  of  law  ;  but  the  new  statutes  which  the 
emperor  himself  found  it  necessary  to  establish,  in 
order  to  explain,  complete,  and  amend  the  law, 
rapidly  accumulated  throughout  his  long  reign. 
These  are  known  as  the  "Novels."  The  Code,  the 
Institutes,  the  Pandects,  and  the  Novels,  with  some 
subsequent  additions,  constitute  the  Corpus  Juris 
Civilis.     See  Crvn.  Law. 

Among  English  translations  of  the  Institutes  are 
that  by  Cooper  (Phila.  1812;  N.  Y.  1811)— which  Is 
regarded  as  a  very  good  one — and  that  by  Sandars 
(Lond.  1853),  which  contains  the  original  text  also, 
and  copious  references  to  the  Digests  and  Code. 
Among  the  modern  French  commentators  are  Or- 
tolan and  Pasquiere. 

Livingston's  Code.  Edward  Livingston, 
one  of  the  commissioners  who  prepared  the 
Louisiana   Code,  prepared  and  presented  to 


CODE 


514 


CODE 


congress  a  draft  of  a  penal  code  for  the  Unit- 
ed States ;  which,  though  it  was  never  adopt- 
ed, is  not  unfrequently  referred  to  in  the 
books  as  stating  principles  of  criminal  law. 

Marine  Ordinances  of  Louis  XIV.  See 
Ordonnance  de  la  Marine,  infra. 

Manu,  Institutes  of.  A  code  of  Hindu 
law,  of  great  antiquity,  which  still  forms  the 
basis  of  Hindu  jurisprudence  (Elphinstone's 
Hist,  of  India,  p.  83),  and  is  said  also  to  be 
the  basis  of  the  laws  of  the  Burmese  and  of 
the  Laos.  Buckle,  Hist,  of  Civilization,  vol. 
1,  p.  54,  note,  70.  "It  undoubtedly  enshrines 
many  genuine  observances  of  the  Hindu  race, 
but  the  opinion  of  the  best  contemporary  ori- 
entalists is  that  it  does  not,  as  a  whole,  rep- 
resent a  set  of  rules  ever  actually  adminis- 
tered in  Hindustan.  It  is,  in  great  part,  an 
ideal  picture  of  that  which,  in  the  view  of 
the  Brahmins,  ought  to  be  the  law."  Maine, 
Anc.  Law  16. 

This  code  contains  simple  rules  for  regulating  the 
trial  of  ordinary  actions ;  the  number  and  com- 
petency of  witnesses  and  sufficiency  of  evidence  ; 
methods  of  procedure  in  court  and  the  judgment 
and  its  enforcement.  There  is  no  indication  of  such 
an  office  as  the  attorney,  as  the  judge  is  required  to 
examine  witnesses  and  parties;  there  is  also  a  sum- 
mary of  the  customary   law. 

The  institutes  of  Manu  are,  in  point  of  the  rela- 
tive progress  of  Hindu  jurisprudence,  a  recent  pro- 
duction; Maine,  Anc.  Law  17;  though  ascribed  to 
the  ninth  century  B.  c.  A  translation  will  be  found 
in  the  third  volume  of  Sir  William  Jones's  Works. 
See,  also,  Gentoo  Code,  supra;    Hindu  Law. 

Mosaic  Code.  The  code  proclaimed  by 
Moses  for  the  government  of  the  Jews,  b.  a 
1491. 

One  of  the  peculiar  characteristics  of  this  code  is 
the  fact  that,  whilst  all  that  has  ever  been  success- 
fully attempted  in  other  cases  has  been  to  change 
details  without  reversing  or  ignoring  the  general 
principles  which  form  the  basis  of  the  previous  law, 
that  which  was  chiefly  done  here  was  the  assertion 
of  great  and  fundamental  principles  in  part  con- 
trary and  in  part  perhaps  entirely  new  to  the  cus- 
toms and  usages  of  the  people.  These  principles 
have  given  the  Mosaic  Code  vast  influence  in  the 
subsequent  legislation  of  other  nations  than  the 
Hebrews.  The  topics  on  which  it  is  most  frequently 
referred  to  as  an  authority  in  our  law  are  those  of 
marriage  and  divorce,  and  questions  of  affinity  and 
of  the  punishment  of  murder  and  seduction. 

Ordonnance  de  la  Marine.  A  code  of 
maritime  law  promulgated  by  Louis  XIV. 

It  was  promulgated  in  1681,  and  with  great  com- 
pleteness embodied  all  existing  rules  of  maritime 
law,  including  insurance.  Kent  pronounces  it  a 
monument  of  the  wisdom  of  the  reign  of  Louis  "far 
more  durable  and  more  glorious  than  all  the  mili- 
tary trophies  won  by  the  valor  of  his  armies."  Its 
compilers  are  unknown.  An  English  translation  is 
found  in  2  Peter's  Adm.  Dec,  appendix ;  also  in  30 
Fed.  Cas.  1203.  The  ordinance  has  been  at  once 
illustrated  and  eclipsed  by  Valin's  commentaries 
upon  it. 

Oleron,  Laws  or  Rolls  of.  The  chief 
code  of  maritime  law  of  the  Middle  Ages, 
■  which  takes  its  name  from  the  island  of 
Oleron. 

Both  the  French  and  the  English  claim  the  honor 
of  having  originated  this  code, — the  former  attri- 
buting its  compilation  to  the  command  of  Queen 
Eleanor,  Duchess  of  Guienne,  near  which  province 
the  island  of  Oleron  lies ;    the  latter  ascribing  its 


promulgation  to  her  son,  Richard  I.  An  English 
writer  considers  that  the  greater  part  of  it  is  prob- 
ably of  older  date,  and  was  merely  confirmed  by 
Richard;  1  Soc.  Eng.  313.  He,  without  doubt, 
caused  it  to  be  improved,  if  he  did  not  originate  it, 
and  he  introduced  it  into  England.  He  did  at 
Chinon,  in  1190,  issue  ordinances  for  the  government 
of  the  navy  which  have  been  fairly  described  as 
the  basis  of  our  modern  articles  of  war,  and  what 
they  did  for  the  navy,  the  code  of  Oleron,  to  which 
they  were  allied,  did  for  the  merchant  service.  Aft- 
er much  learned  discussion  all  are  agreed  now  that 
the  home  of  these  judgments  was  Southern  France; 
Studer,  Oak  Book  of  Southampton,  Vol.  II.  Twiss 
considers  that  they  were  judgments  of  the  Mayor's 
Court  of  Oleron.  Other  writers  hold  the  view  that 
they  were  a  compilation  of  customs.  Some  addi- 
tions were  made  to  this  Code  by  King  John.  It  was 
promulgated  anew  in  the  reign  of  Henry  III.,  and 
again  confirmed  in  the  reign  of  Edward  III.,  at 
which  time  they  had  acquired  the  status  of  laws. 
There  is  a  translation  in  1  Pet.  Adm.  Dec.  The  text 
will  be  found  in  the  Black  Book  of  the  Admiralty. 
The  French  version,  with  Cleirac's  commentary,  is 
contained  in  Us  et  Coutumes  de  la  Mer.  Studer'* 
work,  supra,  discusses  the  subject  at  length,  giving 
the  various  extant  MSS.  together  with  a  critical 
translation  of  the  text  with  variorum  notes.  The 
subjects  upon  which  it  is  now  valuable  are  much 
the  same  as  those  of  the  Consolato  del  Mare. 

Ostrogothic  The  code  promulgated  by 
Theodoric,  king  of  the  Ostrogoths,  at  Rome, 
a.  d.  500.  It  was  founded  on  the  Roman 
law. 

Prussian  Code.  Allgemeines  Landrecht. 
The  former  code  of  1751  was  not  successful, 
and  the  Grand  Chancellor  de  Cocceji  was 
charged  by  Frederick  II.  with  the  duty  of 
codifying  the  law  of  Prussia ;  he  died  in 
1735,  and  afterwards  the  work  was  arrested 
by  the  seven  years'  war,  but  was  resumed  in 
1780,  under  Frederic  II.,  and  a  project  was 
prepared  by  Dr.  Carmer  and  Dr.  Volmar, 
which  was  submitted  to  the  savans  of  Eu- 
rope and  to  the  royal  courts.  After  long  and 
thorough  discussion,  the  present  code  was 
finally  promulgated  and  put  in  force  June  1, 
1794,  by  Frederick  William,  and  then  for  the 
first  time  all  Europe  was  united  under  one 
system  of  law.  It  is  known  also  as  the  Code 
Frederic.     See  German  code,  supra. 

Rhodian  Laws.  A  maritime  code  adopted 
by  the  people  of  Rhodes,  and  in  force  among 
the  nations  upon  the  Mediterranean  nine  or 
ten  centuries  before  Christ.  There  is  reason 
to  suppose  that  the  collection  under  this  title 
in  Vinnius  is  spurious,  and,  if  so,  the  code  is 
not  extant.  See  Marsh,  on  Ins.  b.  1,  c.  4, 
p.  15. 

Spain.  This  country,  even  more  than 
France,  has  developed  the  Roman  Law  to 
its  modern  state  in  which  it  now  divides  the 
world  with  the  English  Common  Law.  The 
earliest  codification,  Fuero  Juzgo  or  Forum 
Judicum,  known  to  us  as  the  Visigothic 
Code,  appeared  about  650  and  embraced  the 
Visigothic  traditions  that  were  first  reduced 
to  writing  by  Euric,  in  the  latter  half  of  the 
fifth  century,  the  original  of  which  is  lost, 
and  also  much  of  the  Breviarium  Alarici- 
anum,  composed  largely  of  the  Justinian  and 
Theodosian  Codes  and  promulgated  early  in 
the  sixth  century  by  Alaric   II.    The  Com- 


CODE 


515 


CODE 


parative  Law  Bureau  of  the  American  Bar 
Association  in  1910  published  a  translation 
by  S.  P.  Scott  who  says  in  the  preface  that 
it  is  "the  most  remarkable  monument  of  leg- 
islation which  ever  emanated  from  a  semi- 
barbarian  people  and  the  only  essentia] 
memorial  of  greatness  or  erudition  bequeath- 
ed by  the  Goths  to  posterity." 

Fuero  Real  or  Fuero  de  las  Leyes,  a  col- 
lection of  laws  and  usages  of  the  Castilian 
monarchy  as  well  as  Roman  doctrines  was 
promulgated  by  Alfonso  X,  the  Wise,  in 
L255,  and  is  considered  an  important  monu- 
ment of  Spanish  jurisprudence.  It  is  in 
course  of  translation  by  S.  P.  Scott  for  the 
Comparative  Law  Bureau. 

Las  Siete  Partidas  (The  Seven  Parts)  was 
also  the  product  of  Alfonso  X,  having  been 
begun  in  1256  and  published  in  1263,  as  Libro 
de  las  Lei/es.  The  final  popular  title  was 
not  officially  given  to  it  until  1347,  by  Al- 
fonso XI.  Embracing  the  laws  and  customs 
contained  in  former  codes,  this  was  also  a 
work  of  wisdom  and  philosophy  and  the  most 
complete  treatise  of  jurisprudence  that  had 
been  published  up  to  that  time.  It  is  still 
the  authority  of  last  resort  wherever  Span- 
ish law  once  dominated.  A  translation  has 
been  made  by  S.  P.  Scott  for  the  Compara- 
tive Law  Bureau  and  is  about  to  be  pub- 
lished. 

In  1507,  under  Phillip  II,  La  Nueva  Reco- 
pilacion  was  sanctioned  and  La  Novisima 
Recopilacion  was  decreed  in  force  on  July 
15,  1805,  and  while  collections  of  laws,  they 
were  clearly  utilitarian  measures  to  create 
order  in  a  vast  mass  of  systemless  legisla- 
tion conflicting  with  the  older  but  controlling 
codes. 

The  modern  Civil  Code  had  its  origin  in 
the  Constitutional  Cortes  of  Cadiz  which  in 
1810,  by  special  commission,  undertook  to 
codify  the  most  important  branches  of  the 
law ;  after  many  idle  intervals  it  was  com- 
pleted and  promulgated  in  Spain  July  24, 
18S9.  By  decree  of  July  31,  1S89,  it  was  ex- 
tended to  Cuba,  Porto  Rico  and  the  Philip- 
pine Island's.  It  has  been  translated  by  the 
War  Department  of  the  United  States  and 
also  by  Clifford  S.  Walton  in  his  work  "Civil 
Law  in  Spain  and  Spanish  America,"  1900. 
In  its  conciseness,  scientific  classification 
and  underlying  doctrines  it  shows  the  influ- 
ence of  the  Romans,  the  Visigoths  and  the 
Moors. 

Other  modern  codes  and  the  years  of  their 
adoption  are  as  follows :  Civil  Procedure, 
1881;  Criminal  Code,  1870;  Criminal  Pro- 
cedure, 18S2;  Commercial  Code,  1885,  and 
Military  Code,  1S90. 

Spanish  America.  While  all  these  coun- 
tries rest  their  jurisprudence  on  Las  Siete 
Partidas;  see  Las  Pabtidas;  each  one  has 
its  Civil  and  Commercial  Codes;  the  coun- 
tries, codes  and  dates  of  adoption  are  as 
follows:  Argentine  Republic.  Commercial 
Code,  1890;  Civil  Code,  effective  1S71  (there 


is  an  English  translation  by  Fran 
uini,  published  by  the  Comparative 
reau     of     the     American     Bar     I 
1914)  ;     Bolivia,     Commerce 
Brazil,    Commercial    Code    18J 
1891;    Colombia,    Civil    I 
Commercial  Code  1886  87;  Chili,  Civil 
1857,    Commercial    Code    li 
Commercial  Code   1853,  Civil  Cod< 
1888;  Ecuador,  Civil  Code  1887, 
Code,    1878;     Guatemala,    Civil     Code    1V7T. 
Commercial    Code    1877;    Honduras, 
Code,  effective  1899;  Mexico,  Civil  Code 
Commercial  Code  1889;  Peru,  Civil  Code,  ef- 
fective  1852    (English   translation   by    i 
I..  Joannini,   published   by  the  Comparative 
Law  Bureau  of  the  American    Bar  A 
tion,  1914)  ;  Salvador,  Civil  Code  1880, 
mereial  Code  1880,  effective  1882;   Uruguay, 
Civil  Code  1895;    Venezuela,  Civil  Cod 
fective  1896. 

Switzerland.  On  January  1,  1912,  a  Civil 
Code  became  effective  and  is  the  latest  and 
most  scientific  work  of  its  kind.  It  was 
drawn  by  Dr.  Eugene  Huber  and  was  pro- 
mulgated officially  in  French,  German  and 
Italian.  An  English  translation  by  I: 
P.  Shick  and  Charles  Wetherill  is  pub! 
by  the  Comparative  Law  Bureau  of  the 
American  Bar  Association   (1914). 

Theodosian.     A  code  compiled  by  a  com- 
mission of  eight  under  the  direction  of 
dosius  the  Younger. 

It  comprises  the  edicts  and  rescripts  of  sixteen 
emperors,  embracing  a  period  of  one  hundred  and 
twenty-six  years.  It  was  promulgated  in  th. 
ern  Empire  in  438,  and  quickly  adopted,  also,  in  the 
Western  Empire.  The  great  modern  expounder  of 
this  code  Is  Gothofredus  (Godefrol).  The  results  of 
modern  researches  regarding  this  code  are  well 
stated  In  the  Foreign  Quar.  Rev.  vol.  9,  374. 

Tbani,  Ordinances  and  Customs  of  tiik 
Sea  of.  Published  in  1063,  and  said  to  I  e 
the  most  ancient  body  of  maritime  laws  in 
existence.  Its  32  articles  consist  of  a  series 
of  decisions  made  by  the  maritime  consuls  of 
the  guild  of  navigators  at  Trani,  a  city  on 
the  Adriatic  Sea,  in  the  11th  century.  Print- 
ed in  Black  Book  of  the  Admiralty.  Vol.  IV. 
"It  was  no  'code'  in  our  modern  sense  of  that 
term.  It  was  only  a  more  or  less  methodic 
collection  of  modern  statutes."  Maitland,  1 
Sel.  Essays  in  Anglo-Amer.  Leg.  Hist.  1-  (14 
L.  Q.  R.  If  I). 

Twelve  Tables.    Laws  of  ancient  Rome. 

They  arose  out  of  the  discontent  of  the  plebs; 
after  a  long  struggle  decemoirs  were  appointed  to 
draft  a  body  of  general  laws  (B.  C.  449-451).  Their 
draft  was  enacted  into  a  statute.  It  was  q<  ither  a 
code,  nor,  In  the  main,  new  law,  but  rather  a  con- 
cise and  precise  statement  of  the  most  Important 
among  the  ancient  customs  of  the  people.  It  was 
the  germ  of  the  Roman  law,  and  as  late  as  Cicero 
boys  learned  It  by  heart.  See  Bryce,  Rome  &  Eng- 
land (1  Sel.  Essays  in  Anglo-Amer.  Leg.  IIi>- 
See  fragment  of  the  law  of  the  Twelve  Tables,  in 
Cooper's  Justinian  656;  Gibbon's  Rome  c.  44;  Maine, 
Anc.  Law  2. 

Visigothic.  Lex  Rom  ana  Yisigothorum. 
See  supra,  sub-title  Spain. 


CODE 


516 


CODICIL 


Wisby,  Laws  of.  A  concise  but  compre- 
hensive code  of  maritime  law,  established  by 
the  "merchants  and  masters  of  the  magnifi- 
cent city  of  Wisby." 

The  port  of  Wisby,  now  in  ruins,  was  situated  on 
the  northwestern  coast  of  Gottland,  on  the  Baltic 
sea.  It  was  the  capital  of  the  island,  and  the  seat 
of  an  extensive  commerce,  of  which  the  chief  relic 
and  the  most  significant  record  is  this  code.  It  is  a 
mooted  point  whether  this  code  was  derived  from 
the  laws  of  Oleron,  or  that  from  this ;  but  the 
similarity  of  the  two  leaves  no  doubt  that  one  was 
the  offspring  of  the  other.  It  was  of  great  author- 
ity in  the  northern  parts  of  Europe.  "Lex  Rhodia 
navalis"  says  Grotius,  "pro  jure  gentium  in  illo 
mare  Mediterraneo  vigcbat;  sicut  apud  Gallium 
leges  Oleronis,  et  apud  omnes  transrlienanos  leges 
Wisbuenses."  De  Jure  B.  lib.  2,  c.  3.  It  is  still  re- 
ferred to  on  subjects  of  maritime  law.  An  English 
translation  will  be  found  in  1  Pet.  Adm.  Dec;  also 
in  the  Black  Book  of  the  Admiralty  and  30  Fed. 
Cas.  1189. 

The  main  additions  to  the  above  title,  re- 
ferring to  recent  codes  or  publication  of  new 
editions  of  the  older  codes,  have  been  pre- 
pared for  this  work  by  William  W.  Smithers, 
of  the  Philadelphia  Bar,  Secretary  of  the 
Comparative  Law  Bureau  of  the  American 
Bar  Association  (organized  August  28,  1907), 
of  which  Simeon  E.  Baldwin,  Founder  of  the 
American  Bar  Association,  was  also  a 
Founder  and  has  been  the  Director.  The 
work  of  the  Bureau  has  been  of  great  public 
value  and  promises  even  greater  results. 

Publishers  announce  the  publication  of 
"The  Commercial  Laws  of  the  World"  in 
thirty-five  volumes. 

In  a  learned  address  before  the  American 
Bar  Association  (Annual  Report,  18S6),  upon 
"Codification,  the  Natural  Result  of  the  Ev- 
olution of  the  Law,"  Mr.  Semmes,  one  of  the 
most  earnest  advocates  of  the  merits  of  the 
civil  law  and  the  code  system,  sketches  the 
history  of  the  codes  of  Europe  and  the  rela- 
tion of  the  civil  to  the  common  law  and  in 
conclusion  says: 

"The  history  of  codification  teaches  that  the  task 
of  preparing  a  code  of  laws  is  difficult,  that  its 
proper  execution  is  a  work  of  years,  to  be  entrusted, 
not  to  a  deciduous  committee  of  fugitive  legislators, 
but  to  a  permanent  commission  of  the  most  en- 
lightened and  cultivated  jurists,  whose  project, 
prior  to  adoption,  should  be  subjected  to  rigid  and 
universal   criticism." 

CODEX  (Lat).  A  volume  or  roll.  The 
code  of  Justinian.     See  Code. 

CODICIL.  Some  addition  to,  or  qualifica- 
tion of,  a  last  will  and  testament 

This  term  is  derived  from  the  Latin  codicillus, 
which  is  a  diminutive  of  codex,  and  in  strictness 
imports  a  little  code  or  writing,— a  little  will.  In 
the  Roman  Civil  Law,  codicil  was  defined  as  an  act 
which  contains  dispositions  of  property  in  prospect 
of  death,  without  the  institution  of  an  heir  or  ex- 
ecutor. Domat,  Civil  Law,  p.  ii.  b.  iv.  tit.  i.  s.  1; 
Just.  De  Codic.  art.  i.  s.  2.  So,  also,  the  early  Eng- 
lish writers  upon  wills  define  a  codicil  in  much  the 
same  way.  "A  codicil  is  a  just  sentence  of  our  will 
touching  that  which  any  would  have  done  after 
their  death,  without  the  appointing  of  an  executor." 
Swinb.  Wills,  pt.  i.  s.  5,  pi.  2.  But  the  present  defi- 
nition of  the  term  is  that  first  given.  1  Wills,  Exrs. 
8 ;     Swinb.  Wills,  pt.   i.   s.  v.  pi.  5. 

Under  the  Roman  Civil  Law,  and  also  by  the  early 
English  law,  as  well  as  the  canon  law,  all  of  which 


very  nearly  coincided  in  regard  to  this  subject,  It 
was  considered  that  no  one  could  make  a  valid  will 
or  testament  unless  he  did  name  an  executor,  as 
that  was  of  the  essence  of  the  act.  This  was  at- 
tended with  great  formality  and  solemnity,  in  the 
presence  of  seven  Roman  citizens  as  witnesses,  omni 
exceptione  majores.  Hence  a  codicil  is  there  termed 
an  unofficious,  or  unsolemn,  testament.  Swinb. 
Wills,  pt.  i.  s.  v.  pi.  4 ;  Godolph,  pt.  i.  c.  1,  s.  2 ;  id. 
pt.  i.  c.  6,  s.  2;  Plowd.  185;  where  it  is  said  by  the 
judges,  that  "without  an  executor  a  will  is  null 
and  void,"  which  has  not  been  regarded  as  law,  in 
England,  for  the  last  two  hundred  years,  probably. 

The  office  of  a  codicil  under  the  civil  law  seems  to 
have  been  to  enable  the  party  to  dispose  of  his 
property,  in  the  near  prospect  of  death,  without 
the  requisite  formalities  of  executing  a  will  (or  tes- 
tament, as  it  was  then  called).  Codicils  were  strict- 
ly confined  to  the  disposition  of  property;  whereas 
a  testament  had  reference  to  the  institution  of  an 
heir  or  executor,  and  contained  trusts  and  con- 
fidences to  be  carried  into  effect  after  the  decease 
of  the  testator.     Domat,  b.  iv.  tit.  i. 

In  the  Roman  Law  there  were  two  kinds  of  codi- 
cils: the  one,  where  no  testament  existed,  and 
which  was  designed  to  supply  its  place  as  to  the 
disposition  of  property,  and  which  more  nearly  re- 
sembled our  donatio  causa  mortis  than  anything 
else  now  In  use;  the  other,  where  a  testament  did 
exist,  had  relation  to  the  testament,  and  formed  a 
part  of  it  and  was  to  be  construed  in  connection 
with  it.  Domat,  p.  ii.  b.  iv.  tit.  i.  s.  i.  art.  v.  It  is 
in  this  last  sense  that  the  term  is  now  universally 
used  in  the  English  law,  and  in  the  American  states 
where  the  common  law  prevails. 

Codicils  owe  their  origin  to  the  following  circum- 
stance. Lucius  Lentulus,  dying  in  Africa,  left 
codicils,  confirmed  by  anticipation  in  a  will  of  for- 
mer date,  and  in  those  codicils  requested  the  Em- 
peror Augustus,  by  way  of  fidei  commissum,  or 
trust,  to  do  something  therein  expressed.  The  em- 
peror carried  this  will  into  effect,  and  the  daughter 
of  Lentulus  paid  legacies  which  she  would  not  oth- 
erwise have  been  legally  bound  to  pay.  Other  per- 
sons made  similar  fidei  commissa,  and  then  the  em- 
peror, by  the  advice  of  learned  men  whom  he  con- 
sulted, sanctioned  the  making  of  codicils,  and  thus 
they  became  clothed  with  legal  authority.  Inst  2. 
25 ;    Bowy.    Com.   155. 

All  codicils  are  part  of  the  will,  and  are 
to  be  so  construed;  17  Sim.  108;  16  Beav. 
510,  2  Ves.  Sen.  Ch.  242 ;  4  Y.  &  C  Ch.  160 ; 
Wilkes  v.  Harper,  3  Sandf.  Ch.  (N.  Y.)  11; 
4  Kent  531.  See  Gelbke  v.  Gelbke,  88  Ala. 
427,  6  South.  834;  Burhans  v.  Haswell,  43 
Barb.  (N.  Y.)  424;  and  executed  with  the 
same  formalities ;  Schoul.  Wills  359 ;  4  Kent 
531;  Tilden  v.  Tilden,  13  Gray   (Mass.)   103. 

A  codicil  properly  executed  to  pass  real 
and  personal  estate,  and  in  conformity  with 
the  statute  of  frauds,  and  upon  the  same 
piece  of  paper  with  the  will,  operates  as  a 
republication  of  the  will,  so  as  to  have  it 
speak  from  that  date;  Coale  v.  Smith,  4 
Pa.  376;  Armstrong  v.  Armstrong,  14  B. 
Monr.  (Ky.)  333 ;  Brimmer  v.  Sohier,  1  Cush. 
(Mass.)  118;  3  M.  &  C.  359.  So  also  it  has 
been  held  that  it  is  not  requisite  that  the 
codicil  should  be  on  the  same  piece  of  paper 
in  order  that  it  should  operate  as  a  republi- 
cation of  the  will;  Kip  v.  Van  Cortland,  7 
Hill  (N.  Y.)  346;  Den  v.  Snowhill,  23  N. 
J.  L.  447;  1  Ves.  Sen.  442;  Harvy  v.  Chou- 
teau, 14  Mo.  587,  55  Am.  Dec.  120;  but 
where  it  is  on  the  same  piece  of  paper,  not 
signed,  only  the  will  proper  which  was  sign- 
ed should  be  admitted  to  probate;  Smith's 


CODICIL 


517 


COERCION 


Estate,  9  Pa.  Co.  Ct.  R.  333;  but  see  Brown's 
Ex'r  v.  Tilden,  5  liar.  &  J.   (Md.)  371. 

A  codicil  duly  executed,  and  attached  or 
referring  to  a  paper  defectively  executed  as 
a  will,  has  the  effect  to  give  operation  to 
the  whole,  as  one  instrument;  Schoul.  Wills 
448;  Beall  v.  Cunningham,  3  B.  Monr.  (Ky.) 
390,  39  Am.  Dec.  469;  Haven  v.  Foster,  14 
Pick.  (Mass.)  543;  1G  Yes.  Ch.  1G7 ;  1  Ad. 
&  E.  423;  Matter  of  Bardenburg's  Will,  85 
Hun  5S0,  33  N.  Y.  Supp.  150.  See  numerous 
cases  cited  in   7  Ves.   Ch.  (Sumner  ed.)  98; 

1  Cr.  &  M.  42. 

There  may  be  numerous  codicils  to  the 
same  will.  In  such  cases,  the  later  ones 
operate  to  revive  and  republish  the  earlier 
ones;  3  Bingh.  Gil;  12  J.  B.  Moore  2.  See 
Johns  Hopkins  University  v.  Pinckney,  55 
Md.  365. 

In  order  to  set  up  an  informally  execut- 
ed paper  by  means  of  one  subsequently  ex- 
ecuted in  due  form,  referring  to  such  infor- 
mal paper,  the  reference  must  'be  such  as 
clearly  to  identify  the  paper ;  Tonnele  v. 
Hall,  4  N.  Y.  140. 

A  codicil  which  depends  on  the  will  for 
interpretation  or  execution  falls,  if  the  will 
be  revoked ;  1  Tucker  436 ;  Jouse  v.  Forman, 
5  Bush  ^Ky.)  337. 

It  is  not  competent  to  provide  by  will  for 
the  disposition  of  property  to  such  persons 
as  shall  be  named  in  a  subsequent  codicil, 
not  executed  according  to  the  prescribed 
formalities  in  regard  to  wills ;  since  all  pa- 
pers of  that  character,  in  whatever  form,  if 
intended  to  operate  only  in  the  disposition  of 
one's  property  after  death,  are  of  a  testa- 
mentary character,  and  must  be  so  treated; 

2  Yes.  Ch.  204 ;  2  M.  &  K.  765. 

So  much  of  the  will  as  is  inconsistent 
with  the  codicil  is  revoked ;  Bosley  v.  Wyatt, 
14  How.  (U.  S.)  390,  14  L.  Ed.  468. 

A  codicil  whose  only  provision  is  the  ap- 
pointment of  an  executor  who  had  died,  can- 
not be  admitted  to  probate  apart  from  the 
will ;  Pepper's  Estate,  148  Pa.  5,  23  Atl.  1039. 
A  testator  executed  a  codicil  which  was  de- 
scribed as  "a  codicil  to  my  will  executed 
some  years  ago,"  and  after  his  death  the 
will  could  not  be  found,  but  probate  of  the 
codicil  was  granted;  [1892]  Prob.  254.  See 
Wells. 

C0EMPTI0.  In  Civil  Law.  The  ceremo- 
ny of  celebrating  marriage  by  solemnities. 
The  parties  met  and  gave  each  other  a  small  sum 
of  money.  They  then  questioned  each  other  in 
turn.  The  man  asked  the  woman  if  she  wished  to 
be  his  mater -familias.  She  replied  that  she  so  wish- 
ed. The  woman  then  asked  the  man  if  he  wished 
to  be  her  patcr-familias.  He  replied  that  he  so 
wished.  They  then  joined  hands ;  and  these  were 
called  nuptials  by  coemptio.  Boethius,  Coemptio; 
Calvinus,  Lex.;    Taylor,  Law  Gloss. 

COERCION.  Constraint;  compulsion; 
force. 

Direct  or  positive  coercion  takes  place 
when  a  man  is  by  physical  force  compelled 
to  do  an  act  contrary  to  his  will :     for  ex- 


ample, when  a  man  falls  into  the  hands  of 
the  enemies  of  his  country,  and  they  com- 
pel him,  by  a  just  fear  of  death,  to  fight 
against  it  See  Grossmeyer  v.  U.  S.,  4  Ct. 
Cls.  (U.  S.)  1;  Miller  v.  L'.  S.,  4  I 
S.)  2S8;  Padelford  v.  U.  S.,  4  Ct.  CI 
S.)  317. 

Implied  coercion  exists  whore  a 
legally  under  subjeetiou  to  another,   and   is 
induced,   in   consequence  of  such  suhj. 
to  do  an  act  contrary  to  his  will. 

As  will  is  necessary  to  the  commission  of 
a  crime  or  the  making  of  a  contract,  a  per- 
son actually  coerced  into  either  has  no  will 
on  the  subject,  and  is  not  responsibl 
East,  PI.  Cr.  225;  5  Q.  B.  279;  Griffith  v. 
Sitgreaves,  90  Pa.  161.  The  command  of  a 
superior  to  an  inferior;  United  St  a; 
Jones,  3  Wash.  C.  C.  209,  220,  Fed.  Cas.  No. 
15, ■!'•)!;  Com.  v.  Blodgett,  12  Mete.  (Mass.) 
5G;  Harmony  v.  Mitchell,  1  lUatchf.  549, 
Fed.  Cas.  No.  6,0^2 ;  Mitchell  v.  tiarmony, 
13  How.  (U.  S.)  115.  14  L.  Ed.  75;  of  a  par- 
ent to  a  child;  Broom,  Max.  11;  of  a  master 
to  his  servant,  or  a  principal  to  his  agent ; 
Hays  v.  State,  13  Mo.  246;  Com.  v.  Drew, 
3  Cush.  (Mass.)  279;  Kliffield  v.  State,  4 
How.  (Miss.)  304;  State  v.  Bugbee,  22  Vt. 
32;  do  not  amount  to  coercion. 

As  to  persons  acting  under  the  constraint 
of  superior  power,  and,  therefore,  not  crim- 
inally amenable,  the  principal  case  is  that 
of  married  women,  with  respect  to  whom 
the  law  recognizes  certain  presumptions. 
Thus,  if  a  wife  commits  a  felony,  other  than 
treason  or  homicide,  or,  perhaps,  highway 
robbery,  in  company  with  her  husband,  the 
law  presumes  that  she  acted  under  his  coer- 
cion, and,  consequently,  without  any  guilty 
intent,  unless  the  fact  of  non-coercion  is 
distinctly  proved;  Clarke,  Cr.  L.  77.  See 
Com.  v.  Eagan,  103  Mass.  71;  State  v.  Wil- 
liams, 65  N.  C.  SOS.  This  presumption  ap- 
pears on  some  occasions  to  have  been  con- 
sidered conclusive,  and  is  still  practically  re- 
garded in  no  very  different  light,  especially 
when  the  crime  is  of  a  flagrant  character; 
hut  the  hotter  opinion  seems  to  be  that  in 
every  case  the  presumption  may  now  be  re- 
butted by  positive  proof  that  the  woman  act- 
ed as  a  free  agent;  and  in  one  case  that 
was  much  discussed,  the  Irish  judges  appear 
to  have  considered  that  sueh  positive  proof 
was  not  required,  but  that  the  question  was 
always  one  to  be  determined  by  the  jury  on 
the  evidence  submitted  to  them;  Jebb#93; 
1  Mood.  143.  It  seems  that  a  married  w<h 
man  cannot  be  convicted  under  any  circum- 
stances as  a  receiver  of  stolen  goods,  when 
the  property  has  been  taken  by  her  hus- 
band and  given  to  her  by  him;  1  Dearsl. 
184. 

Husband  and  wife  were  jointly  charged 
with  felonious  wounding  with  intent  to  dis- 
figure and  to  do  grievous  bodily  harm.  The 
jury  found  that  the  wife  acted  under  the  co- 
ercion of  the  husband,  and  that  she  did  not 


COERCION 


518 


COON  ATI,  COGNATES 


personally  inflict  any  violence  on  the  prose- 
cutor. On  this  finding,  the  wife  was  held 
entitled  to  an  acquittal;  1  Dearsl.  &  B.  553. 

Whether  the  doctrine  of  coercion  extends 
to  any  misdemeanor  may  admit  of  some 
doubt ;  but  the  better  opinion  seems  to  be 
tbat,  provided  the  misdemeanor  is  of  a  se- 
rious nature,  as,  for  instance,  the  uttering 
of  base  coin,  the  wife  will  be  protected  in 
like  manner  as  in  cages  of  felony;  although 
it  has  been  distinctly  held  that  the  protec- 
tion does  not  extend  to  assaults  and  bat- 
teries or  the  offence  of  keeping  a  brothel ; 
Russ.  Cr.  38 ;  2  Lew.  229 ;  8  C.  &  P.  19,  541 ; 
Com.  v.  Lewis,  1  Mete.  (Mass.)  151 ;  Com.  v. 
Neal,  10  Mass.  152,  6  Am.  Dec.  105.  Indeed, 
it  is  probable  tbat  in  all  inferior  misdemean- 
ors this  presumption,  if  admitted  at  all, 
would  be  held  liable  to  be  defeated  by  far 
less  stringent  evidence  of  the  wife's  active 
co-operation  than  would  suffice  in  cases  of 
felony ;  8  C.  &  P.  541 ;  2  Mood.  53. 

There  is  coercion  only  when  the  husband 
is  present;  it  does  not  extend  to  treason, 
murder  and  grave  felonies ;  2  C.  &  K.  903 ;  it 
extends  to  the  lesser  felonies  and  most  mis- 
demeanors, and  even  in  these  the  circum- 
stances may  repel  the  presumption  of  coer- 
cion ;  8  C.  &  P.  554.  If  itx  appear  that  she 
took  the  leading  part,  his  presence  will  not 
protect  her;  12  Cox  45.  If  she  acted  in  his 
absence,  no  presumption  of  coercion  arises; 
she  is  a  principal;  Russ  &  Ry.  270. 

A  wife  is  not  chargeable  with  guilt  until 
the  presumption  of  coercion  has  been  remov- 
ed; State  v.  Harvey,  130  la.  394,  106  N.  W. 
93S;  there  is  a  presumption  of  coercion  if 
the  husband  was  present,  but  it  may  be 
rebutted ;  Com.  v.  Adams,  186  Mass.  101,  71 
N.  E.  78 ;  her  conduct  alone  at  the  time  may 
suffice  to  overcome  a  presumption;  id. 
Where  the  wife  of  a  convicted  murderer  at 
his  instigation  shot  the  revolver,  the  offence 
was  committed  in  the  husband's  presence 
and  there  was  nothing  to  rebut  the  presump- 
tion of  coercion ;  State  v.  Miller,  162  Mo. 
253,  62  S.  W.  692,  85  Am.  St.  Rep.  498. 
If  it  appears  that  the  wife  was  not  urged 
by  the  husband,  but  was  the  inciter,  she  is 
liable ;  People  v.  Ryland,  2  N.  Y.  Cr.  R.  441. 
In  the  case  of  a  disorderly  house,  they  are 
both  equally  guilty ;  State  v.  Jones,  53  W. 
Va.  613,  45  S.  E.  916. 

The  marriage  need  not  be  strictly  proved ; 
reputation  is  sufficient  proof  of  marriage; 
but  mere  cohabitation  is  not;  Odgers,  C.  L. 
1347. 

See  1  B.  &  H.  Lead.  Cr.  Cas.  76;  Duress. 

CO-EXECUTOR.  One  who  is  a  joint  ex- 
ecutor with  one  or  more  others.  See  Execu- 
tor. 

C0GNATI,     COGNATES.     In     Civil     Law. 

All  those  persons  who  can  trace  their  blood 
to  a   single  ancestor  or  ancestress. 

The  term  is  not  used  in  the  civil  law  as  it  now 
prevails  in  France.     In  the  common  law  it  has  no 


technical  sense;  but  as  a  word  of  discourse  In  Eng- 
lish it  signifies,  generally,  allied  by  blood,  related 
in  origin,  of  the  same  family. 

Originally,  the  maternal  relationship  had  no  in- 
fluence in  the  formation  of  the  Roman  family,  nor 
in  the  right  of  inheritance.  But  the  edict  of  the 
praetor  established  what  was  called  the  Praetorian 
succession,  or  the  bonorum  possessio,  in  favor  of 
cognates  in  certain  cases.  Dig.  38.  8.  See  Pater- 
familias ;    Ag.\tati. 

COGNATION.  In  Civil  Law.  Signifies 
generally  the  kindred  which  exists  between 
two  persons  who  are  united  by  ties  of  blood 
or  family,  or  both. 

Civil  cognation  is  that  which  proceeds 
alone  from  the  ties  of  families,  as  the  kin- 
dred between  the  adopted  father  and  the 
adopted  child. 

Mixed  cognation  is  that  which  unites  at 
the  same  time  the  ties  of  blood  and  family, 
as  that  which  exists  between  brothers  the 
issue  of  the  same  lawful  marriage.  Inst. 
3.  6;  Dig.  38.  10. 

Natwal  cognation  is  that  which  is  alone 
formed  by  ties  of  blood ;  such  is  the  kin- 
dred of  those  who  owe  their  origin  to  an 
illicit  connection,  either  in  relation  to  their 
ascendants  or  collaterals. 

COGNISANCE.     See  Cognizance. 

C0GNITI0NIBUS      AD  M ITTEND  IS.         A 

writ  requiring  a  justice  or  other  qualified 
person,  who  has  taken  a  fine  and  neglects 
to  certify  it  in  the  court  of  common  pleas, 
to  do  so. 

COGNIZANCE  (Lat.  cognitio,  recognition, 
knowledge ;  spelled,  also,  Conusance  and  Cog- 
nisance). Acknowledgment;  recognition;  ju- 
risdiction ;  judicial  power ;  hearing  a  matter 
judicially.     See  12  Ad.  &  EL  259. 

Of  Pleas.  Jurisdiction  of  causes.  A  privi- 
lege granted  by  the  king  to  a  city  or  town 
to  hold  pleas  within  the  same.  Termes  de 
la  Ley.  It  is  in  frequent  use  among  the 
older  writers  on  English  law  In  this  latter 
sense,  but  is  seldom  used,  if  at  all,  in 
America,  except  in  its  more  general  mean- 
ing. The  universities  of  Cambridge  and  Ox- 
ford possess  this  franchise ;  11  East  543 ;  1 
W.  Bla.  454;  3  Bla.  Com.  298. 

Claim  of  Cognizance  (or  of  Conusance).  An 
intervention  by  a  third  person,  demanding 
judicature  in  the  cause  against  the  plaintiff, 
who  has  chosen  to  commence  his  action  out 
of  claimant's  court.  2  Wils.  409;  2  Bla. 
Com.  350,  n. 

It  is  a  question  of  jurisdiction  between 
the  two  courts ;  Fortesc.  157 ;  5  Viner,  Abr. 
588 ;  and  not  between  the  plaintiff  and  de- 
fendant, as  in  the  case  of  plea  to  the  juris- 
diction, and  must  be  demanded  by  the  party 
entitled  to  conusance,  or  his  representative, 
and  not  by  the  defendant  or  his  attorney ; 
1  Chit.  PL  403. 

There  are  three  sorts  of  conusance.  Te- 
nere  placita,  which  does  not  oust  another 
court  of  its  jurisdiction,  but  only  creates  a 
concurrent  one.     Cognitio  placitorum,   when 


COGNIZANCE 


519 


COIF 


the  plea  is  commenced  in  one  court,  of  which 
conusance  belongs  to  aother.  A  conusance 
of  exclusive  jurisdiction:  as,  that  no  other 
court  shall  hold  plea,  etc.  Hardr.  509;  Bac. 
Abr.  Courts,  D. 

In  Pleading.  The  answer  of  the  defend- 
ant in  an  action  of  replevin  who  is  not  en- 
titled to  tbe  distress  or  goods  which  arc  the 
subject  of  the  action — acknowledging  the 
taking,  and  justifying  it  as  having  been  done 
by  the  command  of  one  who  is  so  entitled. 
Lawes,  PL  35.  An  acknowledgment  made 
by  t lie  deforciant,  in  levying  a  fine,  that  the 
lands  in  question  are  the  right  of  the  com- 
plainant. 2  Bla.  Com.  350.  See  Inhabitants 
of  Sturbridge  v.  Winslow,  21  Pick.  (Mass.) 
87;  Noble  v.  Holmes,  5  Hill  (N.  Y.)  194. 

COGNOMEN  (Lat).  A  family  name. 
The  prcenomen  among  the  Romans  distinguished 
the  person,  the  nomen  the  gens,  or  all  the  kindred 
descended  from  a  remote  common  stock  through 
males,  while  the  cognomen  denoted  the  particular 
family.  The  agnomen  was  added  on  account  of 
some  particular  event,  as  a  further  distinction. 
Thus,  in  the  designation  Publius  Cornelius  Scipio 
Africanus,  Publius  is  the  prcenomen,  Cornelius  Is 
the  nomen,  Scipio  the  cognomen,  and  Africanus  the 
agnomen.  Vlcat.  See  Cas.  temp,  Hardw.  286;  6  Co. 
65. 

COGNOVIT  ACTIONEM  (Lat.  he  has  con- 
fessed the  cause  of  action.  Cognovit  alone 
is  in  common  use  with  the  same  signifi- 
cance). 

A  written  confession  of  a  cause  of  action 
by  a  defendant,  subscribed,  but  not  sealed, 
and  authorizing  the  plaintiff  to  sign  judg- 
ment and  issue  execution,  usually  for  a  sum 
named. 

COHABIT  (Lat.  con  and  habere) .  To  live 
together  in  the  same  house,  claiming  to  be 
married. 

The  word  does  not  include  In  Its  signification,  nec- 
essarily, occupying  the  same  bed ;  1  Hagg.  Cons. 
144  ;  Dunn  v.  Dunn,  4  Paige,  Ch.  (N.  Y.)  425  ;  though 
the  word  is  popularly,  and  sometimes  in  statutes, 
used  in  this  latter  sense ;  State  v.  Byron,  20  Mo. 
210;  Bish.  Marr.  &  Div.  §  506,  n. ;  Jackson  v.  State, 
116  Ind.  461,  19  N.  E.  330;  Pruner  v.  Com.,  S2  Va. 
115  ;  Com.  v.  Dill,  159  Mass.  61,  34  N.  E.  81  ;  I 
v.  U.   S.,  116  U.   S.  55,  6  Sup.   Ct.  278,  29  L.  Ed.  561. 

COHABITATION.  It  does  not  necessarily 
mean  living  together  under  the  same  roof; 
a  man  may  be  absent  on  business,  or  two 
married  domestic  servants  may  live  with 
different  employers,  and  yet  be  cohabiting 
in  the  broader  sense;   [1904]  P.  389. 

To  live  together  in  the  same  house. 
Used  without  reference  to  the  relation  of  the  par- 
ties to  each  other  as  husband  and  wife,  or  other- 
wise. Used  of  sisters  or  other  members  of  the  same 
family,  or  of  persons  not  members  of  the  same 
family,  occupying  the  same  house ;  2  Vern.  323 ; 
Bish.  Marr.  &  Div.  &  Sep.  506,  n.  See  In  re  Yard- 
ley's  Estate,  75  Pa.  207  ;  Sullivan  v.  State,  32  Ark. 
187. 

See  Lascivious  Cohabitation. 

COIF.     A  head-dress. 

In  England  there  are  certain  Serjeants  at  law  who 
are  called  Serjeants  of  the  coif,  from  the  white  lawn 
coif  they  wear  on  their  heads  under  their  small 
black  skull-cap  of  silk  or  velvet  when  they  are  ad- 


mitted to  that  order.  It  was  anciently  worn  as  a 
distinguishing  badge.  When  powdered  wigs  were 
introduced,  a  round  patch  of  black  silk  edged  with 
white  was  worn  on  the  crown  of  the  wig  as  a  dimin- 
utive representation  of  the  coif  and  cai> 
Pulling,  Order  of  the  Coif. 

COIN.    A  piece  of  met;.,  |  with  cer- 

tain  marks  and  made  current  at 
value.     Strictly   speaking,   c  In    di    •  rs   from 
money  as  the  species  differs  from 
Money  is  any  matter,  whether  metal, 
beads,   or  shells,   which   has   currency   as   a 
medium  in  commerce.     Coin  is  a  particular 
species,  always  made  of  metal,  and  struck 
according   to   a  certain  process   called  coin- 
ing.    Wharton. 

To  fashion  pieces  of  metal  into  a  pre- 
scribed shape,  weight,  and  fineness,  and 
stamp  them  with  prescribed  devices,  by  au- 
thority of  government,  that  they  may  cir- 
culate as  money.  Thayer  v.  1 :  22  Ind, 
306;  Griswold  v.  Hepburn,  2  Duvall  (Ky.)  29. 

Congress  alone  has  the  power  to  coin 
money;  Const.  U.  S.  Art  1,  %  7 ;  but  the 
states  may  pass  laws  to  punish  the  circula- 
tion of  false  coin;  Fox  v.  Ohio,  5  How.  (TJ. 
S.)   410,   12  L.  Ed.  213. 

So  long  as  a  genuine  silver  coin  is  worn 
only  by  natural  abrasion,  is  not  appreciably 
diminished  in  weight,  and  retains  the  ap- 
pearance of  a  coin  duly  issued  from  the 
mint,  it  is  a  legal  tender  for  its  original 
value;  U.  S.  v.  Lissner,  12  Fed.  S40.  See 
Jersey  City  &  B.  R.  Co.  v.  Morgan,  100  U. 
S.  2S8,  16  Sup.  Ct.  276,  40  L.  Ed.  430. 

COLD    BLOOD.     See  Cool  Blood. 

COLIBERTUS.  One  who,  holding  in  free 
socage,  was  obliged  to  do  certain  services 
for  the  lord.  A  middle  class  of  tenants  be- 
tween servile  and  free,  who  held  their 
freedom  of  tenure  on  condition  of  perform- 
ing certain  services.  Said  to  be  the  same 
as  the  conditionales.     Cowell. 

COLLATERAL  (Lat.  con,  with,  hitus,  the 
side).  That  which  is  by  the  side,  and  not 
the  direct  line.  That  which  is  additional 
to  or  beyond  a  thing. 

COLLATERAL  ANCESTORS.  Sometimes 
used  to  designate  uncles  and  aunts  and  oth- 
er collateral  ancestors  of  the  poison  spoken 
of.  who  are  in  fact  not  his  ancestors.  Banks 
v.  Walker,  3  Barb.  Ch.  (X.  Y.i  446. 

COLLATERAL  ASSURANCE.     That  which 

is  made  over  and  above  tbe  deed  itself. 

COLLATERAL      CONSANGUINITY.     That 
relationship  which  subsists  between  pei 
who   have  the  same  ancestors   but   not   the 
same  descendants, — who  do  not  descend  one 
from  the  other.     2  Bla.  Com.  •Jo::. 

The  essential  fact  of  consanguinity  (common  an- 
cestral blood)  is  the  same  in  lineal  and  collateral 
consanguinity;  but  the  relationship  is  aside  from 
the  direct  line.  Thus,  father,  son,  and  grandson  are 
lineally  related;    uncle  and  nephew,  collaterally. 

COLLATERAL  ESTOPPEL.  The  collater- 
al  determination  of  a  question   by   a   court 


COLLATERAL  ESTOPPEL 


520 


COLLATERAL  UNDERTAKING 


having  general  jurisdiction  of  the  subject. 
See  Small  v.  Haskins,  26  Vt.  209. 

COLLATERAL  FACTS.  Facts  not  direct- 
ly connected  with  the  issue  or  matter  in 
dispute. 

Such  as  are  offered  in  evidence  to  estab- 
lish the  matters  or  facts  in  issue.  Garwood 
v.  Garwood,  29  Cal.  521 ;  King  v.  Chase,  15 
N.  H.  16,  41  Am.  Dec.  675.  Facts  offered  in 
evidence  at  a  trial  to  establish  the  issue, 
though  not  necessarily  conclusive  thereof. 
Freein.  Judgm.  §  258. 

Such  facts  are  inadmissible  in  evidence;  but,  as 
it  is  frequently  difficult  to  ascertain  a  priori  wheth- 
er a  particular  fact  offered  in  evidence  will  or  will 
not  clearly  appear  to  be  material  in  the  progress  of 
the  cause,  in  such  cases  it  is  usual  in  practice  for 
the  court  to  give  credit  to  the  assertion  of  the  coun- 
sel who  tenders  such  evidence,  that  the  facts  will 
turn  out  to  be  material.  But  this  is  always  within 
the  sound  discretion  of  the  court.  It  is  the  duty  of 
the  counsel,  however,  to  offer  evidence,  if  possible,  in 
such  order  that  each  part  of  it  will  appear  to  be 
pertinent  and  proper  at  the  time  it  is  offered  ;  and 
it  is  expedient  to  do  so,  as  this  method  tends  to  the 
success  of  a  good  cause. 

When  a  witness  is  cross-examined  as  to  collateral 
facts,  the  party  cross-examining  will  be  bound  by 
the  answer;  and  he  cannot,  in  general,  contradict 
him  by  another  witness  ;    Rose.  Cr.  Ev.  139. 

COLLATERAL    INHERITANCE    TAX.     A 

tax  levied  upon  the  collateral  devolution  of 
property  by  will  or  under  the  intestate  law*. 
See  Tax. 

COLLATERAL  ISSUE.  An  issue  taken  up- 
on some  matter  aside  from  the  general  issue 
in  the  case. 

Thus,  for  example,  a  plea  by  the  criminal  that  he 
is  not  the  person  attainted  when  an  interval  exists 
between  attainder  and  execution,  a  plea  in  abate- 
ment, and  other  such  pleas,  each  raises  a  collateral 
issue.     4  Bla.  Com.  338,  396. 

COLLATERAL  KINSMEN.  Those  who  de- 
scend from  one  and  the  same  common  an- 
cestor, but  not  from  one  another. 

Thus  brothers  and  sisters  are  collateral  to  each 
other;  the  uncle  and  the  nephew  are  collateral 
kinsmen,  and  cousins  are  the  same.  All  kinsmen 
are   either   lineal  or  collateral. 

COLLATERAL  LIMITATION.  A  limita- 
tion in  the  conveyance  of  an  estate,  giving 
an  interest  for  a  specified  period,  but  making 
the  right  of  enjoyment  depend  upon  some 
collateral  event;  as  an  estate  to  A  till  B 
shall  go  to  Rome.  Park,  Dow.  163 ;  4  Kent 
128;    1  Washb.  R.  P.  215. 

COLLATERAL  SECURITY.  A  separate 
obligation  attached  to  another  contract  to 
guaranty  its  performance.  The  transfer  of 
property  or  of  other  contracts. to  insure  the 
performance  of  a  principal  engagement.  See 
Lochrane  v.  Solomon,  38  Ga.  292 ;  Mervin  v. 
Sherman,  9  la.  331. 

The  property  or  securities  thus  conveyed 
are  also  called  collateral  securities ;  1  Pow. 
Mortg.  393  ;  2  id.  666,  n.  871 ;  3  id.  944,  1001 ; 
Munn  v.  McDonald,  10  Watts  (Pa.)  270.  See 
Pledge;  Chattel  Mortgage. 

COLLATERAL  UNDERTAKING.  A  con- 
tract based  upon  a  pre-existing  debt,  or  oth- 


er liability,  and  including  a  promise  to  pay, 
made  by  a  third  person,  having  immediate 
respect  to  and  founded  upon  such  debt  or 
liability,  without  any  new  consideration  mov- 
ing to  him.  Elder  v.  Warfield,  7  Har.  &  J. 
(Md.)  391. 

COLLATERAL  WARRANTY.  Warranty 
as  to  an  estate  made  by  one  who  was  an- 
cestor to  the  heir  thereof,  either  actually  or 
by  implication  of  law,  in  respect  to  other 
property,  but  who  could  not  have  been  so  in 
respect  to  the  estate  in  question. 

Warranty  made  where  the  heir's  title  to 
the  land  neither  was  nor  could  have  been 
derived  from  the  warranting  ancestor. 
Termes  de  la  Ley. 

Collateral  warranty  is  spoken  of  as  "a  mode  of 
common  assurance."  The  statute  of  Gloucester 
being  silent  as  to  a  collateral  warranty,  a  warranty 
of  a  collateral  ancestor,  whose  heir  the  issue  in  tail 
might  be  descending  upon  the  latter,  would  bind 
him  without  assets  by  force  of  the  common  law. 
Therefore,  by  getting  a  collateral  relation,  whose 
heir  the  issue  in  tail  was  to  be,  to  concur  in  the 
alienation  and  bind  himself  and  his  heirs  to  war- 
ranty, the  statute  De  Donis  was  successfully  evaded. 

Thus,  if  a  tenant  in  tail  should  discontinue  the 
tail,  have  issue  and  die,  and  the  uncle  of  the  issue 
should  release  to  the  discontinuee  and  die  without 
issue,  this  is  a  collateral  warranty  to  the  issue  in 
tail.  Littleton  §  709.  The  tenant  in  tail  having 
discontinued  as  to  his  issue  before  his  birth,  the 
heir  in  tail  was  driven  to  his  action  to  regain  pos- 
session upon  the  death  of  his  ancestor  tenant  in 
tail;  and  in  this  action  the  collateral  warranty 
came  in  as  an  estoppel.    2  Washb.  R.  P.  670. 

The  heir  was  barred  from  ever  claiming 
the  land,  and,  in  case  he  had  assets  from 
the  warranting  ancestor,  was  obliged  to  give 
the  warrantee  other  lands  in  case  of  an  evic- 
tion.    4  Cruise,  Dig.  436. 

By  the  statute  of  Gloucester,  6  Edw.  I.  c. 
3,  tenant  by  the  curtesy  was  restrained  from 
making  such  warranty  as  should  bind  the 
heir.  By  a  favorable  construction  of  the 
statute  De  Donis,  and  by  the  statute  3  &  4 
Will.  IV.  c.  74,  tenants  in  tail  were  deprived 
of  the  power  of  making  collateral  warranty. 
By  11  Hen.  VII.  c.  20,  warranty  by  a  tenant 
in  dower,  with  or  without  the  assent  of  her 
subsequent  husband,  was  prevented;  and 
finally  4  &  5  Anne,  c.  16,  declares  all  war- 
ranties by  a  tenant  for  life  void  against  the 
heir,  unless  such  ancestor  has  an  estate  of 
inheritance  in  possession.  See  Co.  Litt.  373, 
Butler's  note  [328] ;   Stearns,  R.  Act.  135,  372. 

It  is  doubtful  if  the  doctrine  has  ever  pre- 
vailed to  a  great  extent  in  the  United  States, 
and  the  statute  of  Anne  has  not  been  gener- 
ally adopted  in  American  statute  law,  al- 
though re-enacted  in  New  York ;  4  Kent 
*469 ;  and  in  New  Jersey ;  Den  v.  Crawford, 
8  N.  J.  L.  106.  It  has  been  adopted  and  is 
in  force  in  Rhode  Island ;  Sisson  v.  Seabury, 
1  Sumn.  235,  Fed.  Cas.  No.  12,913;  and  in 
Delaware ;  Ford's  Lessee  v.  Hays,  1  Harr. 
50,  23  Am.  Dec.  369.  In  Kentucky  and  Vir- 
ginia, it  seems  that  collateral  warranty  binds 
the  heir  to  the  extent  of  assets  descended ; 
Doe  v.  Moore,  1  Dana  (Ky.)  59.    In  Pennsyl- 


COLLATERAL  WARRANTY 


521  COLLECTOR  OF  THE  CUSTOMS 


vania,  the  statute  of  Gloucester  is  in  force, 
but  the  statute  of  Anue  is  not,  and  a  col- 
lateral warranty  of  the  ancestor,  with  suffi- 
cient real  assets  descending  to  the  heirs, 
bars  them  from  recovering  the  lands  war- 
ranted ;  Carson  v.  Cemetery  Co.,  104  Pa.  575. 
See  2  Bla.  Com.  301;  2  Washb.  R.  P.  6G8. 
If  the  learning*  of  collateral  warranty  has 
been  called  difficult,  it  is  simply  because  the 
law  of  warranty  came  to  be  turned  from  the 
purpose  of  its  introduction, — that  of  protec- 
tion and  defence, — and  fashioned  into  a  rem- 
edy to  meet  an  entirely  different  purpose. 
Later,  collateral  warranty  ceased  to  be  used 
for  the  purpose  of  barring  estates  tail,  and 
its  use  could  never  have  been  universal. 
Rawle,  Cov.  for  Title,  sees.  8,  9.  See  Litt.  § 
709;  12  Mod.  513;  Year  Book  12  Edw.  IV. 
19;  Tudor,  Lead.  Cas.  R.  P.  695;  Pig.  Re- 
cov.  9. 

COLLATERALES  ET  SOCII.  The  former 
title  of  masters  in  chancery. 

C0LLATI0  B0N0RUM.  A  collation  of 
goods. 

COLLATION.  In  Civil  Law.  The  suppos- 
ed or  real  return  to  the  mass  of  the  succes- 
sion which  an  heir  makes  of  the  property  he 
received  in  advance  of  his  share  or  other- 
wise, in  order  that  such  property  may  be  di- 
vided together  with  the  other  effects  of  the 
succession.  See  Succession  of  Thompson,  9 
La.  Ann.  96. 

As  the  object  of  collation  is  to  equalize 
the  heirs,  it  follows  that  those  things  are 
excluded  from  collation  which  the  heir  ac- 
quired by  an  onerous  title  from  the  ancestor ; 
that  is,  where  he  gave  a  valuable  considera- 
tion for  them.  And,  upon  the  same  principle, 
if  a  co-heir  claims  no  share  of  the  estate,  he 
is  not  bound  to  collate.  Qui  non  vult  hered- 
itatem  non  cogitur  ad  collationem.  It  cor- 
responds to  the  common  law  hotchpot ;  2  Bla. 
Com.  517. 

In  Ecclesiastical  Law.  The  act  by  which 
the  bishop  who  has  the  bestowing  of  a  bene- 
fice gives  it  to  an  incumbent. 

Where  the  ordinary  and  patron  were  the  same 
person,  presentation  and  institution  to  a  benefice 
became  one  and  the  same  act;  and  this  was  called 
collation.  Collation  rendered  the  living  full  except 
as  against  the  king;  1  Bla.  Com.  391.  An  advowson 
under  such  circumstances  Is  termed  collative ;  2 
Bla.  Com.  22. 

In  Practice.  The  comparison  of  a  copy 
with  its  original,  in  order  to  ascertain  its 
correctness  and  conformity.  The  report  of 
the  officer  who  made  the  comparison  is  also 
called  a  collation. 

COLLECTOR.  One  appointed  to  receive 
taxes  or  other  impositions:  as,  collector  of 
taxes,  collector  of  militia  fines,  etc.  A  person 
appointed  by  a  private  person  to  collect  the 
credits  due  him. 

COLLECTOR  OF  THE  CUSTOMS.  An  of- 
ficer of  the  United  States,  appointed  for  the 


term  of  four  years.     Rev.  Stat.  U.  S.  f 
His  general  duties  are  denned  in  ;  2621. 

COLLEGA.     In    Civil    Law.     one    ii, 
with   joint  authority.     A  ie;    an  as- 

sociate.    Black,  L,  Diet. 

COLLEGE.  An  organized  collection  or  as- 
semblage of  persons.  A  civil  corporation,  so- 
ciety, or  company,  having,  in  general,  some 
literary  object. 

The  assemblage  of  the  cardinals  at  Rome  is  called 
a  college.  The  body  of  presidential  electors  is  called 
the  electoral  college,  although  the  whole  body  never 
come  together. 

A  qualified  person  is  prima  facie  entitled 
to  register  as  a  student  in  a  university  ;  Glea- 
son  v.  University,  104  Minn.  359,  116  N.  YV. 
650;  but  in  Dartmouth  College  v.  Wood- 
ward, 4  Wheat.  518,  4  L.  Ed.  629,  Marshall, 
C.  J.,  said:  "No  individual  youth  has  a  vested 
interest  in  the  institution  which  can  be 
asserted  in  a  court  of  justice."  Refusal  of 
an  incorporated  medical  college  to  admit  ne- 
gro students  does  not  deny  them  any  con- 
stitutional privilege,  for  private  institutions 
of  learning,  though  incorporated,  may '  se- 
lect those  whom  they  will  receive,  and  may 
discriminate  on  account  of  sex,  age,  pro- 
ficiency in  learning  or  otherwise  r  Booker  v. 
Medical  College,  156  Mich.  95,  120  N.  W. 
5S9,  24  L.  R.  A.  (N.  S.)  447. 

Mandamus  was  held  the  proper  remedy  to 
remove  a  professor  after  the  professorship 
had  been  abolished;  People  v.  Medical  Col- 
lege, 10  Abb.  N.  C.  (N.  Y.)  122;  or  to  prevent 
an  application  on  behalf  of  a  colored  boy  to 
be  admitted ;  State  v.  Maryland  Institute,  87 
Md.  643,  41  Atl.  126;  or  to  compel  the  admis- 
sion of  a  woman  as  a  student  in  a  law  col- 
lege ;  Foltz  v.  Hoge,  54  Cal.  2S ;  or  to  compel 
the  admission  of  a  doctor  to  the  College  of 
Physicians;  4  Burr.  2186.  But  it  will  not 
lie,  on  the  relation  of  a  medical  college,  to 
compel  the  State  Board  of  Medical  Examin- 
ers to  recognize  it  as  a  medical  institution  in 
good  standing;  State  v.  Coleman,  64  Ohio  St. 
377,  60  N.  E.  568,  55  L.  R.  A.  105. 

A  college  cannot  dismiss  a  student  without 
cause;  Booker  v.  College,  156  Mich.  95,  120  N. 
W.  589,  24  L.  R.  A.  (N.  S.)  447 ;  mandamus  to 
reinstate  a  student  who  has  been  expelled  has 
generally  been  refused;  Dunn's  Case,  '.>  Pa. 
C.  C.  417 ;  a  college  may  forbid  its  students 
to  join  a  secret  society,  and  a  student  who 
does  so  may  be  expelled;  People  v.  College, 
40  111.  1S6.  Where  a  college  degree  was 
withheld  from  a  student  who  had  satisfac- 
torily passed  his  examinations,  mandamus 
was  refused  in  State  v.  Medical  College,  128 
Wis.  7,  106  N.  W.  116,  3  L.  R.  A.  (N.  S.)  1115, 
116  Am.  St.  Rep.  21,  8  Ann.  Cas.  407 ;  People 
v.  School,  6S  Hun  US,  22  N.  Y.  Supp. 
contra,  People  v.  Medical  College,  60  Hun 
107,  14  N.  Y.  Supp.  490,  affirmed  in  12S  N.  Y. 
621,  28  N.  E.  253,  it  appearing  that  the  re- 
fusal was  merely  arbitrary ;  and  so  in  State 
v.  Medical  College,  81  Neb.  533,  116  N.   W. 


COLLEGE 


522 


COLLEGE 


294,  17  L.  R.  A.  (N.  S.)  930.  The  reason  for 
granting  the  writ  is  usually  a  so-called  con- 
tractual relation  arising  between  college  and 
student  on  matriculation ;  but  such  relation 
was  denied  in  31  Law  Jour.  119,  where  an 
action  for  breach  of  contract  was  brought 
The  better  view  is  said  in  England  to  be  that 
the  sole  jurisdiction  to  settle  such  questions 
rests  in  the  visitor  to  the  college  or  uni- 
versity, and  not  in  the  courts ;  33  L.  J.  Rep. 
(Ch.)  625.  Mandamus  will  not  lie  to  compel 
a  college  to  issue  a  diploma ;  State  v.  Medi- 
cal College,  128  Wis.  7,  106  N.  W.  116,  3  L. 
R.  A.  (N.  S.)  1115,  116  Am.  St.  Rep.  21,  80 
Ann.  Cas.  407.  A  diploma  is  not  necessary 
to  granting  of  a  degree,  for  a  vote  that  a 
degree  be  conferred  on  a  person  invests  him 
with  such  degree  ipso  facto;  Wright  v. 
Lanckton,  19  Pick.  (Mass.)  2S8. 

An  instructor's  relation  with  a  school  is 
ordinarily  a  purely  contractual  one;  Butler 
v.  Regents  of  University,  32  Wis.  124 ;  Trus- 
tees of  University  v.  Walden,  15  Ala.  655; 
Board  of  Regents  v.  Mudge,  21  Kan.  223. 

In  the  absence  of  a  statute  providing  the 
manner  for  the  dissolution  of  a  college  cor- 
poration, it  may  dissolve  itself  by  a  voluntary 
surrender  of  its  franchise;  People  v.  Col- 
lege, 3S  Cal.  166 ;  and  while  a  palpable  mis- 
use of  the  powers  is  ground  for  its  dissolu- 
tion; State  v.  College  Co.,  63  Ohio  St.  341, 
58  N.  E.  799,  52  L.  R.  A.  365;  a  partial  de- 
cay of  one  department,  caused  by  students 
refusing  to  take  that  special  course,  would 
not  be  ground  for  forfeiture;  State  v.  Col- 
lege, 32  Ohio  St.  487.  A  statute  providing 
that  credit  for  certain  purposes  is  not  to  be 
given  to  students  who  are  minors  attending 
a  college,  unless  the  assent  of  some  officer 
of  the  college  be  obtained,  is  a  proper  exer- 
cise of  legislative  functions ;  Soper  v.  Col- 
lege, 1  Pick.  (Mass.)  177,  11  Am.  Dec.  159; 
Morse  v.  State,  6  Conn.  9 ;    18  Q.  B.  647. 

The  board  of  regents  of  a  state  college 
cannot  exact  a  fee  of  students  to  be  used  for 
maintenance  of  the  Y.  M.  C.  A.  or  Y.  W.  C. 
A.;  Connell  v.  Gray,  33  Okl.  591,  127  Pac. 
417,  42  L.  R.  A.  (N.  S.)  336. 

Notwithstanding  the  agreement  of  a  uni- 
versity to  educate  five  boys  without  cost,  to 
be  appointed  annually  by  the  mayor  of  a 
city,  in  consideration  of  exemption  from  tax- 
es, it  may  charge  a  free  student  a  laboratory 
fee  to  cover  material  actually  used  and  de- 
stroyed by  him  in  the  laboratory  courses; 
City  of  New  Orleans  v.  Board  of  Adm'rs,  123 
La.  550,  49  South.  171. 

In  a  suit  for  injuries  suffered  at  a  uni- 
versity foot  ball  game  by  the  collapse  of  the 
seats,  the  game  being  under  the  auspices  of 
a  university  athletic  association,  it  was  held 
that  it  was  a  branch  of  the  university; 
George  v.  Athletic  Ass'n,  107  Minn.  424,  120 
N.  W.  750. 

One  who  conducts  a  business  college  in 
Philadelphia  without  the  authority  to  con- 


fer degrees  will  be  restrained  from  describ- 
ing his  school  as  a  university ;  it  appearing 
that  by  the  use  of  the  name  "University  of 
Philadelphia"  persons  intending  to  corre- 
spond with  the  "University  of  Pennsylvania* 
were  misled,  the  latter  institution  was  enti- 
tled to  protection  against  the  use  of  the  word 
"university" ;  Com.  v.  Banks,  198  Pa.  397,  48 
Atl.  277.  A  business  college  is  not  entitled  to 
exemption  from  taxation  as  a  general  edu- 
cational institution ;  Parsons  Business  Col- 
lege v.  City  of  Kalamazoo,  166  Mich.  305,  131 
N.  W.  553,  33  L.  R.  A.  (N.  S.)  921. 
See  Degree. 

COLLEGE  FRATERNITIES.  Individual 
members  of  a  college  fraternity  may  enjoin 
the  unauthorized  withdrawal  of  the  charter 
of  the  chapter  to  which  they  belong ;  the 
membership  would  remain  to  them  in  spite 
of  the  withdrawal.  The  fact  that  a  college 
has  not  the  proper  material  for  the  mainte- 
nance of  a  Greek  letter  fraternity  is  no 
ground  for  the  withdrawal  of  its  fraternity 
charter  by  the  head  council,  where  there  is 
no  provision  in  the  constitution  or  by-laws 
authorizing  such  withdrawal,  except  for  a 
violation  of  the  rules  and  usages  of  the 
fraternity.  A  disclosure  by  charter  mem- 
bers of  the  constitution  of  a  Greek  letter 
fraternity  and  of  certain  secrets  relative  to 
an  attempt  by  the  grand  council  to  withdraw 
a  charter  was  not  such  a  violation  of  the 
constitution  and  by-laws  as  would  authorize 
the  fraternity  to  forfeit  their  charter,  where 
such  violation  was  rendered  necessary  by  the 
fraternity  itself.  Heaton  v.  Hull,  51  App. 
Div.  126,  64  N.  Y.  Supp.  279.  See  42  Am. 
L.  Rev.  170. 

COLLEGIUM  (Lat.  colli gere,  to  collect). 
In  Civil  Law.  A  society  or  assemblage  of 
those  of  the  same  rank  or  honor.  An  army. 
A  company,  in  popular  phrase.  The  whole 
order  of  bishops.    Du  Cange. 

Collegium  illicitum.  One  which  abused  its 
right,  or  assembled  for  any  other  purpose 
than  that  expressed  in  its  charter. 

Collegium  licitum.  An  assemblage  or  so- 
ciety of  men  united  for  some  useful  purpose 
or  business,  with  power  to  act  like  a  single 
individual. 

All  collegia  were  illicita  which  were  not 
ordained  by  a  decree  of  the  senate  or  of  the 
emperor  ;   2  Kent  269. 

A  corporation. 

COLLIERY,  C0ALERY.  A  coal  mine, 
coal  pit,  or  place  where  coals  are  dug,  with 
the  engines  and  machinery  used  in 'discharg- 
ing the  water  and  raising  the  coal.  Web- 
ster. 

Colliery  is  a  collective  compound  including 
many  things,  and  is  not  limited  to  the  lease 
and  fixtures  of  a  tunnel,  drift,  shaft,  slope, 
or  vein  from  which  the  coal  is  mined  ;  Carey 
v.  Bright,  58  Pa.  85. 


COLLISION 


523 


COLLISION 


COLLISION.  The  act  of  ships  or  vessels 
striking  together,  or  of  one  vessel  running 
against  or  foul  of  another. 

It  may  happen  without  fault,  no  blame 
being  Imputable  to  those  in  charge  of  either 
vessel.  In  such  case,  In  the  English,  Ameri- 
can, and  French  courts,  each  party  must  bear 
his  own  loss;  Pardessus,  Droit  Cumin,  p.  4, 
t.  2,  c.  2,  §  4;  General  Mutual  Ins.  Co.  v. 
Sherwood,  14  How.  (l.\  S.)  352,  14  L.  Ed. 
452;   1  Pars.  Sh.  &  Adm.  525. 

A  collision  by  inevitable  accident  is  when 
a  collision  is  caused  exclusively  by  natural 
causes,  without  any  fault  on  the  part  of  the 
owners  or  those  in  charge;  The  Sea  Gull,  23 
Wall.  (U.  S.)  169,  23  L.  Ed.  90;  Killam  v. 
Eri,  3  Cliff.  456,  led.  ('as.  No.  7.7G5 ;  Samp- 
son v.  U.  S.,  12  Ct.  CI.  4S0.  It  must  appear 
that  neither  vessel  was  in  fault;  Sterling  v. 
The  Jennie  Cushman,  3  Cliff.  G3G,  Fed.  Cas. 
No.  13,375.  Where  the  captain  and  crew,  ex- 
cept the  second  mate,  were  taken  sick,  and  a 
collision  occurred,  through  the  absence  of  a 
lookout,  it  was  held  to  be  inevitable  accident; 
The  Southern  Home,  8  Reporter  3S9,  Fed. 
Cas.  No.  13,187.  See  also  The  F.  W.  Gifford, 
7  Biss.  249,  Fed.  Cas.  No.  5,166. 

It  may  happen  by  mutual  fault,  that  is, 
by  the  misconduct,  fault,  or  negligence  of 
those  in  charge  of  both  vessels ;  The  C.  R. 
Stone,  49  Fed.  475;  The  Brinton,  50  Fed. 
5S1;  The  T.  B.  Van  Houten,  50  Fed.  590; 
The  Riversdale,  53  Fed.  2S6  ;  The  Allen  Green, 
60  Fed.  459,  9  C.  C.  A.  73.  In  such  case, 
neither  party  has  relief  at  common  law ;  3 
Kent  231;  3  C.  &  P.  528;  Barnes  v.  Cole, 
21  Wend.  (N.  Y.)  1S8 ;  Hartfield  v.  Roper,  21 
Wend.  (N.  Y.)  615,  34  Am.  Dec.  273 ;  Brown 
v.  Maxwell,  6  Hill  (N.  Y.)  592,  41  Am.  Dec. 
771 ;  Parker  v.  Adams,  12  Mete.  (Mass.)  415, 
46  Am.  Dec.  694  (though  now  otherwise  in 
England  by  the  Judicature  Act  1S73) ;  but 
the  maritime  courts  aggregate  the  damages 
to  both  vessels  and  their  cargoes,  and  then 
divide  the  same  equally  between  the  two  ves- 
sels; 3  Kent  232 ;  The  Teutonia,  23  Wall.  (U. 
S.)  84,  23  L.  Ed.  44 ;  The  Clara,  49  Fed.  765 ; 
The  State  of  California,  49  Fed.  172,  1  C.  C. 
A.  224 ;  The  Bolivia,  49  Fed.  169,  1  C.  C.  A. 
221;  Fristad  v.  The  Premier,  51  Fed.  766; 
The  Marion,  56  Fed.  271 ;  The  Manitoba,  122 
U.  S.  97,  7  Sup.  Ct.  1158,  30  L.  Ed.  1095.  See 
1  Swab.  00.  Where  two  tugs  and  two  scows 
in  tow  by  one  of  them  are  all  in  fault,  each 
is  liable  for  an  equal  share  of  the  damages, 
even  though  more  than  one  be  owned  by  the 
same  person;  The  Eugene  F.  Moran,  212  U. 
S.  466,  29  Sup.  Ct.  339,  53  L.  Ed.  600.  Where 
the  collision  is  by  intentional  wrong  of  both 
parties,  the  libel  will  be  dismissed  ;  The  R. 
L.  Maybey,  4  Blatch.  88,  Fed.  Cas.  No.  11,- 
870. 

It  may  happen  by  inscrutable  fault,  that 
is,  by  the  fault  of  those  in  charge  of  one  or 
boli  vessels  and  yet  under  such  circum- 
stances  that   it  is   impossible   to    determine 


who  is  in   fault.     In   such   <ase  the  Ameri- 
can courts  of  admiralty  and   the   Eur 
maritime   courts   form<  rlj       ■'       i  ■]    the   rule 
of  an  equal  division  of  the  dam- 

age;  The  Comet,  1  Abb.  I 
No.  3,050;    The  Scioto,  2  Wai 
360,    Fed.    Cas.    No.    12,508;     I  Mar. 

Law,  L".)<;.     The  English  com  I 
a  remedy  in  admiralty;    2  Hagg.  Adm.   145; 
6  Thornt.  240;   and  see  The  K 
128,  Fed.  Cas.  No.  7,600;    but  it  has 
decided  by  a  vast  preponderance  of  authority 
that  there  can  be  no  recovery  or  partial  re- 
covery unless  fault  be  affirmatively  shown; 
The  Jumna,  149  Fed.  173,  79  C.  C.   A.  119, 
following  The  Clara,  102  U.  S.  200,  26  L.  Ed. 
115;    The  Sunnyside,  91  U.  S.  208,  s.;  L.  Ed. 
302. 

It  may  happen  by  the  fault  of  those  be- 
longing to  one  of  the  colliding  vessels,  with- 
out any  fault  being  imputable  to  the 
vessel.  In  such  case  the  owners  of  the  vessel 
iu  fault  must  bear  the  damage  which  their 
own  vessel  has  sustained,  and  are  liable  as 
well  as  their  master  to  a  claim  for  compen- 
sation from  the  owners  of  the  other  vessel 
for  the  damage  done  to  her;  1  Swab.  23.  173, 
200,211;   3  W.  Rob.  2S3;   The  Narragansett, 

I  Blatchf.  211,  Fed.  Cas.  No.  10.017;  Vantine 
v.  The  Lake,  2  Wall.  Jr.  52,  Fed.  Cas.  No. 
16,S7S;    Smith  v.  Condry,  1  How.  (U.  S.)  2S, 

II  L.  Ed.  35;  Williamson  v.  Barrett,  13  How. 
(U.  S.)  101,  14  L.  Ed.  OS;  although  wilfully 
committed  by  the  master;  Ralston  v.  Stale 
Rights,  Crabbe  22,  Fed.  Cas.  No.  11,540; 
Dusar  v.  Murgatroyd,  1  Wash.  C.  C.  13.  Fed. 
Cas.  No.  4,199;  Dias  v.  The  Revenge.  1  Wash. 
C.  C.  262,  Fed.  Cas.  No.  3,877.  But  see  1 
W.  Rob.  399;  2  id.  502;  Wright  v.  Wilcox,  19 
Wend.    (N.  Y.)   343,  32  Am.  Dec.  507. 

Where  one  vessel,  clearly  shown  to  be 
guilty  of  a  fault  adequate  in  itself  to  have 
caused  a  collision,  seeks  to  impugn  the  oth- 
er vessel,  there  is  a  presumption  in  favor  of 
the  latter,  which  can  only  be  rebutted  by 
clear  proof  of  a  contributing  fault,  and  this 
principle  is  peculiarly  applicable  to  a  vessel 
at  anchor,  complying  with  regulations  con- 
cerning lights  and  receiving  injuries,  through 
the  fault  of  a  steamer  in  motion ;  The 
Oregon,  15S  U.  S.  1S6,  15  Sup.  Ct.  S04,  39 
L.  Ed.  913.  If  a  cargo  be  damaged  by  col- 
lision between  two  vessels,  the  owner  may 
pursue  both  vessels  or  either,  or  the  own- 
ers or  both,  or  either;  and  in  case  he  pro- 
ceeds against  one  only,  and  both  are  held 
in  fault,  he  may  recover  bis  entire  damages 
of  the  one  sued  ;  In  re  Eastern  Dredging 
Co.,  1S2  Eed.  179;  The Beaconsfield,  158  U. 
S.  303,  15  Sup.  Ct.  S60,  39  L.  Ed.  993. 

These  four  classes  of  cases  are  noted  in  2 
Dods.  S5,  by  Lord  Stowell. 

Full    compensation    is,    in    general,    to    be 
made  in  such  cases  for  the  loss  and  damage 
which    the   prosecuting  party   has   sustained* 
by  the  fault  of  the  party  proceeded  against: 


COLLISION 


524 


COLLISION 


2  W.  Rob.  279;  including  all  damages  which 
are  fairly  attributable  exclusively  to  the 
act  of  the  original  wrong-doer,  or  which 
may  be  said  to  be  the  direct  consequence 
of  his  wrongful  act;  3  W.  Rob.  7,  282;  11 
M.  &  W.  228 ;  1  Swab.  200 ;  The  Narragan- 
sett,  1  Blatchf.  211,  Fed.  Cas.  No/ 10,017; 
Vautine  v.  The  Lake,  2  Wall.  Jr.  52,  Fed. 
Cas.  No.  16,878;  Smith  v.  Condry,  1  How. 
(TJ.  S.)  28,  11  L.  Ed.  35;  The  Catharine,  17 
How.  (U.  S.)  170,  15  L.  Ed.  233 ;  The  Anna 
W.,  201  Fed.  58,  119  C.  C.  A.  396. 

As  to  limited  liability  of  owners,  see  Ship. 

For  the  prevention  of  collisions,  certain 
rules  have  been  adopted  (see  Navigation 
Rules)  which  are  binding  upon  vessels  ap- 
proaching each  other  from  the  time  the 
necessity  for  precaution  begins,  and  con- 
tinue to  be  applicable,  as  the  vessels  ad- 
vance, so  long  as  the  means  and  opportu- 
nity to  avoid  the  danger  remain  ;  New  York 
&  L.  U.  S.  Mail  S.  S.  Co.  v.  Rumball,  21 
How.  372, 16  L.  Ed.  144.  But,  whatever  may 
be  the  rules  of  navigation  in  force  at  the 
place  of  collision,  it  is  apparent  that  they 
must  sometimes  yield  to  extraordinary  cir- 
cumstances, and  cannot  be  regarded  as  bind- 
ing in  all  cases.  Thus,  if  a  vessel  neces- 
sarily goes  so  near  a  rock,  or  the  land,  that 
by  following  the  ordinary  rules  she  would 
inevitably  go  upon  the  rock,  or  get  on  shore 
or  aground,  no  rule  should  prevail  over  the 
preservation  of  property  and  life;  1  W.  Rob. 
478,  485;  4  J.  B.  Moore  314;  The  Maggie  J. 
Smith,  123  TT.  S.  349,  8  Sup.  Ct.  159.  31  L. 
Ed.  175;  Belden  v.  Chase,  150  TL  S.  674, 
14  Sup.  Ct.  264,  37  L.  Ed.  1218;  but  obe- 
dience to  the  rules  is  not  a  fault,  even  if  a 
different  course  would  have  prevented  a  col- 
lision, and  the  necessity  must  be  clear  and 
the  emergency  sudden  and  alarming  before 
an  act  of  disobedience  can  be  excused ; 
Belden  v.  Chase,  150  U.  S.  674,  14  Sup.  Ct. 
264,  37  L.  Ed.  1218.  No  vessel  should  un- 
necessarily incur  the  probability  of  a  col- 
lision by  a  pertinacious  adherence  to  the 
rule  of  navigation;  1  W.  Rob.  471.  478; 
Hawkins  v.  Steamboat  Co.,  2  Wend.  (N.  Y.) 
452;  and  if  it  was  clearly  in  the  power  of 
one  of  the  vessels  which  came  into  collision 
to  have  avoided  all  danger  by  giving  way, 
she  will  be  held  bound  to  do  so,  notwith- 
standing the  rule  of  navigation;  6  Thornt. 
Adm.  600,  607;  Lane  v.  The  A.  Denike,  3 
Cliff.  117,  Fed.  Cas.  No.  8,015. 

All  navigation  rules  pertinent  to  a  given 
situation  are  to  be  construed  together,  and 
while  each  of  two  approaching  vessels  has 
the  right  to  expect  the  other  to  navigate  in 
accordance  with  the  rules  or  a  passing 
agreement,  when  it  becomes  evident  that 
either  is  not  doing  so,  it  is  the  duty  of  the 
other  to  navigate  accordingly  and  take  such 
measures  as  may  seem  necessary  to  avoid  a 
collision;  U.  S.  v.  Erie  R.  Co.,  172  Fed.  50, 
96  C.  C.  A.  538.  But  a  vessel  is  not  requir- 
ed to  depart  from  the  rule  when  she  can- 


not do  so  without  danger;  Biggs  v.  Barry, 
2  Curt.  C.  C.  363,  Fed.  Cas.  No.  1,402 ;  Crock- 
ett v.  The  Isaac  Newton,  18  How.  581,  15 
L.  Ed.  492. 

There  must  be  a  lookout  properly  sta- 
tioned and  kept;  and  under  circumstances 
of  special  danger,  two ;  The  Oregon,  158  U. 
S.  186,  15  Sup.  Ct.  S04,  39  L.  Ed.  913;  and 
the  absence  of  such  a  lookout  is  prima 
facie  evidence  of  negligence ;  St.  John  v. 
Paine,  10  How.  (U.  S.)  557,  13  L.  Ed.  537; 
Whltridge  v.  Dill,  23  How.  (TL  S.)  448,  16 
L.  Ed.  581;  The  Scioto,  Daveis,  359,  Fed. 
Cas.  No.  12,50S ;  The  Coe  F.  Young,  49  Fed. 
167,  1  C.  C.  A.  219;  The  Nellie  Clark,  50 
Fed.  585.  The  rule  requiring  a  lookout  ad- 
mits of  no  exception  on  account  of  size  in 
favor  of  any  craft  capable  of  committing 
injury;  The  Marion,  56  Fed.  271.  The  ab- 
sence of  a  lookout  is  not  material  where 
the  presence  of  one  would  not  have  availed 
to  prevent  a  collision ;  The  Blue  Jacket,  144 
U.  S.  371,  12  Sup.  Ct.  711,  36  L.  Ed.  469. 
A  sailing  vessel  is  entitled  to  assume  that  a 
steam  vessel  approaching  her  is  being  nav- 
igated with  a  proper  lookout;  The  Coe  F. 
Young,  49  Fed.  167,  1  C.  C.  A.  219.  By  the 
International  Code,  rule  8,  lights  also  must 
be  kept;  the  rule  was  formerly  otherwise 
in  regard  to  vessels  on  the  high  seas;  2 
W.  Rob.  4;  The  Delaware  v.  The  Osprey, 
2  Wall.  Jr.  268,  Fed.  Cas.  No.  3,763.  See 
Navigation  Rules;  The  Genesee  Chief  v. 
Fitzhugb,  12  How.  (U.  S.)  443,  13  L.  Ed. 
1058;  Haney  v.  Packet  Co.,  23  How.  (U.  S.> 
287,  16  L.  Ed.  562;  The  Emily,  1  Blatchf. 
236,  Fed.  Cas.  No.  4,452 ;  The  Santa  Claus, 
1  Blatchf.  370,  Fed.  Cas.  No.  12,326 ;  Carsley 
v.  White,  21  Pick.  (Mass.)  254,  32  Am.  Dec. 
259;  Simpson  v.  Hand,  6  Whart  (Pa.)  324, 
36  Am.  Dec.  231 ;  The  Havilah,  50  Fed.  331, 
1  C.  C.  A.  519;  The  Oregon,  158  TL  S.  186, 
15  Sup.  Ct.  804,  39  L.  Ed.  943.  Stu.  Adm. 
Low.  C.  222,  242;  1  Thornt.  Adm.  592;  6 
id.  176 ;  7  id.  507 ;  2  W.  Rob.  377 ;  3  id.  7, 
49.  190;  1  Swab.  20,  233. 

The  injury  to  an  insured  vessel  occasioned 
by  a  collision  is  a  loss  within  the  ordinary 
policy  of  insurance ;  4  Ad.  &  E.  420 ;  6  N. 
&  M.  713 ;  Peters  v.  Ins.  Co.,  14  Pet.  (U.  S.) 
99,  10  L.  Ed.  371 ;  General  Mut.  Ins.  Co.  v. 
Sherwood,  14  How.  (U.  S.)  352,  14  L.  Ed. 
452 ;  Nelson  v.  Ins.  Co.,  8  Cush.  (Mass.) 
477,  54  Am.  Dec.  776;  but  when  the  collision 
is  occasioned  by  the  fault  of  the  insured 
vessel,  or  the  fault  of  both  vessels,  the  in- 
surer is  not  ordinarily  liable  for  the  amount 
of  the  injury  done  to  the  other  vessel  which 
may  be  decreed  against  the  vessel  insured ; 
4  Ad.  &  E.  420 ;  7  E.  &  B.  172 ;  40  E.  L.  & 
Eq.  54;  Mathews  v.  Ins.  Co.,  11  N.  Y.  9; 
General  Mut.  Ins.  Co.  v.  Sherwood,  14  How. 
(U.  S.)  352,  14  L.  Ed.  452,  and  cases  cited; 
but  some  policies  now  provide  that  the  in- 
surer shall  be  liable  for  such  a  loss;  40 
E.  L.  &  Eq.  54 ;   7  E.  &  B.  172. 

Damage  caused  to  one  vessel  by  striking 


COLLISION 


525 


COLLISION 


upon  another  vessel's  anchor,  is  within  a 
policy  of  marine  insurance  providing  against 
collisions  between  vessels ;  [1901]  2  K.  B. 
792. 

See  Matsunanii,  Collisions  between  War- 
ships and  Merchant   V< 

When  the  colli  inn  v. us  without  fault  on 
either  side,  and  occurred  in  a  foreign  coun- 
try, where,  In  accordance  with  the  local 
law,  the  damages  were  equally  divided  be- 
tween the  colliding  vessels,  the  amount  of 
the  decree  against  the  insured  vessel  for 
its  share  of  the  damages  suffered  by  the 
other  vessel  was  held  recoverable  uml 
ordinary  policy;  Peters  v.  Ins.  Co.,  14  Pet. 
(U.  S.)  99.  10  L.  Ed.  371. 

The  fact  that  the  libellants  in  a  collision 
case  had  received  satisfaction  from  the  in- 
surers for  the  vessel  destroyed,  furnishes 
no  ground  of  defence  for  the  respondent ; 
The  Monticello  v.  Mollison,  17  How.  (IT.  S.) 
152,  15  L.  Ed.  68. 

Improper  speed  on  the  part  of  a  steamer 
in  a  dark  night,  during  thick  weath 
in  the  crowded  thoroughfares  of  commerce, 
will  render  such  vessel  liable  for  the  dam- 
ages occasioned  by  a  collision;  and  It  is  no 
excuse  for  such  dangerous  speed  that  the 
steamer  carries  the  mail  and  is  under  con- 
tract to  convey  it  at  a  greater  average  speed 
than  that  complained  of;  3  Hags.  Adm. 
414;  McCready  v.  Goldsmith,  18  How.  (TJ. 
S.)  89.  15  L.  Ed,  288;  The  New  York  v. 
Rea,  18  How.  (U.  S.)  223,  15  L.  Ed.  359; 
Sampson  v.  United  States,  12  Ct.  Cls.  (U.  S.) 
4S0;  The  Manistee,  7  Biss.  35,  Fed.  Cas.  No. 
9,028 ;  The  Majestic,  48  Fed.  730,  1  C.  C.  A. 
78;  Fabre  v.  Steamship  Co.,  53  Fed.  288,  3 
C.  C.  A.  534;  The  Bolivia,  49  Fed.  169,  1 
C.  C.  A.  221 ;  The  Laurence,  54  Fed.  542, 
4  C.  C.  A.  501;  The  Fulda,  52  Fed.  400; 
The  Trave,  55  Fed.  117;  The  Britannia,  1":; 
U.  S.  130.  14  Sup.  Ct.  795.  3S  L,  Ed.  OCO; 
The  Nacoochee,  137  U.  S.  330,  11  Sup.  Ct 
122.  34  L.  Ed.  687. 

As  between  a  steamer  and  a  sailing  ves- 
sel, the  former  must  keep  out  of  the  way 
of  the  latter;  The  Java,  14  Blatch.  524,  Fed. 
Cas.  No.  7,233;  The  Free  State,  91  U.  S. 
200,  23  L.  Ed.  299 ;  The  Blue  Jacket.  144  IT. 
S.  371,  12  Sup.  Ct.  711,  36  L.  Ed.  469;  The 
Nacoochee,  137  U.  S.  330,  11  Sup.  Ct.  122. 
34  L.  Ed.  6S7;  The  Havana,  54  Fed.  411: 
The  Robert  Holland,  59  Fed.  200;  as  be- 
tween a  vessel  in  motion  and  one  at  anchor, 
with  proper  lights,  the  former  is  ordinarily 
liable  for  a  collision;  The  Lady  Franklin. 
2  Low.  220,  Fed.  Cas.  No.  7,9S4;  The  .1.  W. 
Evermau,  2  Hugh.  17,  Fed.  Cas.  No.  7,591. 
Where  a  vessel  is  moored  for  the  night  ac- 
cording to  custom  along  a  well-known  dock 
and  not  projecting  beyond  the  wharf,  if  run 
into  by  a  steamer  in  the  fog,  she  is  not  at 
fault  because  she  had  no  light  set  and 
sounded  no  gongs ;  The  Express,  48  Fed. 
323.  A  vessel  at  anchor  in  a  fairway  must 
take    precautions    commensurate    with    the 


danger  she  presents  to  shipping;    The  Eur- 
ope, 175  Fed.  5! 

A  Bailing  vessel  beating  in  the  vicini 
a  steam  vessel  is  not  obliged  to  run  oi/ 
tack,    provided   her  gi  at    is   not 

culated  to   mislead  or  embari 

!oe  F.  Young,  49  Fed.  1OT,  1 
C.  C.  A.  219. 

An  inexperienced  oarsman  i-  f  neg- 

ligence  In  attempting  to  i 
steamboat  but  a  Bhort  distance  in 

kerak  v.  Jutte,  15:;  Pa.  117,  25  At 
As  to  collisions  due  to  the  fault  of  a  pilut, 

ILOTAGE. 

A  cause  of  collision,  or  collision  and  dam- 
age, as  it  is  technically  called,  is  a  suit  in 
rem  in  the  admiralty. 

In  the  United  States  courts  it  is  commenced  by 
the  filing  of  a  libel  and  the  arrest  of  the  vessel  to 
the  mismanagement  or  fault  of  which  the  Injury  Is 
imputed.  In  the  English  admiralty  the  suit  is  com- 
menced by  the  arrest  of  the  vessel  and  the  filing  of 
a  petition.  In  England,  the  judge  is  usually  ;. 
at  the  hearing  of  the  cause  by  two  of 
or  Elder  Brethren  of  Trinity  House,  or  other  ex- 
perienced shipmasters,  whose  opinions  upon  all 
questions  of  professional  skill  involved  in  the  issue 
are  usually  adopted  by  the  court;  1  W.  Rob.  471;  2 
.     2  Chit.   Genl.  Pr.   514. 

In  the  American  courts  of  admiralty,  the  judge 
usually  decides  without  the  aid  or  advice  of  experi- 
enced shipmasters  acting  as  assessors  or  ad 
of  the  court;  but  the  evidence  of  such  shipmasters, 
as  experts,  is  sometimes  received  in  reference  to 
questions  of  professional  skill  or  nautical  usage. 
Such  evidence  is  not,  however,  admissible  to  estab- 
lish a  usage  in  direct  violation  of  those  general 
rules  of  navigation  which  have  been  sanctioned  and 
established  by  repeated  decisions;  Wheeler  v.  The 
Eastern  State,  2  Curt.  C.  C.  141,  Fed.  Cas.  No.  17.494; 
The  Clement,  2  Curt.  C.  C.  363,  Fed.  Cas.  No.  2,879. 

When  a  party  sets  up  circumstances  as 
the  basis  of  exceptions  to  the  general  rules 
of  navigation,  he  is  held  to  strict  proof;  1 
W.  Rob.  157,  182,  478 :  0  Tbornt.  607 ;  5  id. 
170;  3  Hagg.  Adm.  321 ;  and  courts  of  ad- 
miralty lean  against  such  exceptions;  ll  N. 
Y.  !  .  0  is.  53.  The  admissions  of  a  mas- 
ter of  one  of  the  colliding  subse- 
quently to  the  collision  are  admissible  in 
evidence;  5  E.  L.  &  Eq.  556;  and  the  mas- 
ters and  crew  are  admissible  as  witn 
2  Dods.  83;  2  llagg.  Adm.  145;  3  id.  321, 
325  ;    1  Con  Id.  384. 

The  general  rules  in  regard  to  costs  In  col- 
lision cases,  in  the  admiralty  courts,  are  that 
if  only  one  party  is  to  blame,  he  pays  the 
costs  of  both;  if  neither  is  to  blame,  and 
the  party  prosecuting  bad  apparent  cause 
for  proceeding,  each  party  pays  his  own 
costs,  but  in  the  absence  of  apparent  or  prob- 
able cause  the  libel  will  be  dismissed  with 
costs;  if  both  parties  are  to  blame,  th< 
of  both  are  equally  divided,  or,  more  - 
ally,  each  party  is  left  to  pay  his  own  costs. 
But  costs  in  admiralty  are  always  in  the 
discretion  of  the  court,  and  will  be  given  or 
withheld  in  particular  cases  without  regard 
to  these  general  rules,  if  the  equity  of  the 
case  requires  a  departure  from  them ;  u  \Y. 
Rob.  213,  244;    5   Jur.  1007;    2  Conkl.  438 


COLLISION 


526 


COLLOQUIUM 


"In  case  of  collision  on  the  high  seas  be- 
tween ships  of  different  nationalities,  the 
general  maritime  law,  as  understood  and  ad- 
ministered in  the  courts  of  the  country  in 
which  the  litigation  is  prosecuted,  governs. 
The  Belgenland,  114  U.  S.  355,  5  Sup.  Ct. 
860,  29  L.  Ed.  152;  In  re  State  Steamship 
Co.,  60  Fed.  1018.  This  rule  is  subject  to 
two  qualifications:  (1)  Persons  in  charge  of 
either  ship  would  not  be  open  to  blame  for 
following  sailing  directions  and  rules  of 
navigation  prescribed  by  their  own  govern- 
ment; The  Scotia,  14  Wall.  [U.  S.]  170,  20 
L.  Ed.  822.  (2)  If  the  maritime  law,  as  ad- 
ministered by  the  nations  to  which  the  ships 
respectively  belong,  is  the  same  in  respect 
of  a  particular  matter,  it  will,  if  duly  prov- 
ed, be  followed  in  respect  of  such  matter, 
though  it  differ  from  the  maritime  law  as 
understood  in  the  country  of  the  litigation; 
The  Scotland,  105  U.  S.  24,  26  L.  Ed.  1001." 
Moore's  notes  to  Dicey,  Conflict  of  Laws,  670. 
See  Meili,  Internat.  Civil  and  Comm.  L.  524. 

See  Fog  ;   Lien  ;   Navigation  Rules. 

COLLISTRIGIUM.     The   pillory. 

COLLOCATION.     In      French      Law.     The 

act  by  which  the  creditors  of  an  estate  are 
arranged  in  the  order  in  which  they  are  to 
be  paid  according  to  law. 

The  order  in  which  the  creditors  are  plac- 
ed is  also  called  collocation.  2  Low.  C.  9, 
139. 

COLLOQUIUM.  A  general  averment  in 
an  action  for  slander  connecting  the  whole 
publication  with  the  previous  statement.  1 
Stark.  SI.  431;  Heard,  Lib.  &  SI.  228;  or 
stating  that  the  whole  publication  applies 
to  the  plaintiff,  and  to  the  extrinsic  matters 
alleged  in  his  declaration.  1  Greenl.  Ev.  § 
417. 

An  averment  that  the  words  were  spoken 
"of  or  concerning"  the  plaintiff,  where  the 
words  are  actionable  in  themselves.  6  Term 
162;  Ellis  v.  Kimball,  16  Pick.  (Mass.)  132; 
Cro.  Jac.  674 ;  or  where  the  injurious  mean- 
ing which  the  plaintiff  assigns  to  the  words 
results  from  some  extrinsic  matter,  or  of 
and  concerning,  or  with  reference  to,  such 
matter ;  Bloss  v.  Tobey,  2  Pick.  (Mass.)  328 ; 
Carter  v.  Andrews,  16  Pick.  (Mass.)  1;  11 
M.  &  W.  2S7. 

An  averment  that  the  words  in  question 
are  spoken  of  or  concerning  some  usage, 
report,  or  fact  which  gives  to  words  other- 
wise indifferent  the  peculiar  defamatory 
meaning  assigned  to  them.  Shaw,  C.  J., 
Carter  v.  Andrews,  16  Pick.  (Mass.)  6. 

Whenever  words  have  the  slanderous  meaning 
alleged,  not  by  their  own  intrinsic  force,  but  by  rea- 
son of  the  existence  of  some  extraneous  fact,  this 
fact  must  be  averred  in  a  traversable  form,  which 
averment  is  called  the  inducement.  There  must 
then  be  a  colloquium  averring  that  the  slanderous 
words  were  spoken  of  or  concerning  this  fact.  Then 
the  word  "meaning,"  or  innuendo,  is  used  to  connect 
the  matters  thus  introduced  by  averments  and  collo- 
quia  with  the  particular  words  laid,  showing  their 
identity  and  drawing  what  is  then  the  legal  infer- 


ence from  the  whole  declaration,  that  such  was,  un- 
der the  circumstances  thus  set  out,  the  meaning 
of  the  words  used.  Per  Shaw,  C.  J.,  Carter  v.  An- 
drews, 16  Pick.  (Mass.)  6.  By  the  Com.  L.  Proc.  Act 
(1852)  in  England  the  colloquium  has  been  rendered 
unnecessary.     See  Innuendo  ;    Odger,  Lib.  &  SI. 

COLLUSION.  An  agreement  between  two 
or  more  persons  to  defraud  a  person  of  his 
rights  by  the  forms  of  law,  or  to  obtain  an 
object  forbidden  by  law. 

Collusion  and  fraud  of  every  kind  vitiate 
all  acts  which  are  infected  with  them,  and 
render  them  void.  See  3  Hagg.  Eccl.  130, 
133;  McKay  v.  Williams,  67  Mich.  547,  35 
N.  W.  159,  11  Am.  St.  Rep.  597;  Winter  v. 
Truax,  87  Mich.  324,  49  N.  W.  604,  24  Am. 
St.  Rep.  160 ;  2  Greenl.  Ev.  §  51 ;  Bousquet, 
Diet.  Abordage. 

In  Divorce  Law.  An  agreement  between  a 
husband  and  wife  that  one  of  them  will 
commit  or  appear  to  commit  a  breach  of 
matrimonial  duties  in  order  that  the  other 
may  obtain  a  remedy  at  law  as  for  a  real  in- 
jury. 2  Wait,  Act.  &  Def .  591 ;  2  Lev.  &  Tr. 
302;  L.  R.  1  P.  &  M.  121.  See  Reed  v.  Reed, 
86  Mich.  600,  49  N.  W.  587 ;  Belz  v.  Belz,  33 
111.  App.  105.  Such  an  agreement  is  a  fraud 
upon  the  court  where  the  remedy  is  sought ; 
Hopkins  v.  Hopkins,  39  Wis.  167;  and  will 
bar  a  divorce ;  L.  R.  1  P.  &  M.  121 ;  2  Bish. 
Mar.  Div.  &  Sep.  251. 

"The  authorities  are  uniform  in  holding 
that  any  contract  between  the  parties,  .hav- 
ing for  its  object  the  dissolution  of  the  mar- 
riage contract,  or  facilitating  that  result, 
such  as  an  agreement  by  the  defendant  in 
the  pending  action  for  divorce  to  withdraw 
his  or  her  opposition  and  to  make  no  de- 
fense, is  void  as  contra  bonos  mores,  and 
any  note  given  in  consideration  thereof  is 
void."  Adams  v.  Adams,  25  Minn.  72  ;  Weeks 
v.  Hill,  38  N.  H.  199.  This  was  quoted  by 
Sulzberger,  J.,  in  Pietz  v.  Pietz,  20  Dist  R. 
(Pa.)  311.  The  fact  that  defendant  voluntarily 
appears,  without  service,  and  makes  no  de- 
fense, is  not  of  itself  collusion,  but  the  court 
will,  in  such  case,  narrowly  examine  the  evi- 
dence; Lyon  v.  Lyon,  13  Dist.  Rep.  (Pa.) 
623.  A  mere  mutual  desire  to  be  divorced 
will  not  defeat  the  granting  of  the  decree 
when  there  is  no  collusion  between  the  par- 
ties for  the  purpose  of  making  evidence; 
Taylor  v.  Taylor,  35  Pa.  Co.  Ct.  385.  In 
Dunbar  v.  Dunbar,  190  U.  S.  340,  23  Sup. 
Ct.  757,  47  L.  Ed.  1084,  while  the  husband 
and  wife  were  living  apart,  the  husband 
told  the  wife  that  if  she  would  not  contest 
divorce  proceedings  he  would  make  pro- 
vision for  her  support.  The  court,  in  hold- 
ing that  a  bond  for  such  provision  was  not 
discharged  in  bankruptcy,  said  that  it  might 
be  considered  as  in  the  nature  of  an  ordinary 
alimony  decree. 

COLONIAL  LAWS.     The  laws  of  a  colony. 

In  the  United  States  the  term  is  used  to 
designate  the  body  of  law  in  force  in  the 
colonies  of  America  at  the  time  of  the  com- 


COLONIAL  LAWS 


527 


COLOR 


mencement  of  our  independence,  which  was, 
in  general,  the  common  law  of  England, 
with  such  modifications  as  the  colonial  ex- 
perience had  introduced.  The  colonial  law 
is  thus  a  transition  state  through  which  our 
present  law  is  derived  from  the  English 
common  law. 

In  England  the  term  colonial  law  is  used 
with  reference  to  the  present  colonies  of 
that  realm.     See  Colony. 

COLON  US  (Let).  In  Civil  Law.  A  serf 
attached  to  the  soil  and  whose  descendants 
so  continued.  Whilst  the  coloni  were  not 
really  servi,  and  in  many  respects  were  held 
to  be  ingenui,  they  were  not  permitted  to 
remove  from  the  place  on  which  they  were 
born  into  this  status.  They  paid  rent  to 
the  owner  of  the  land  and  generally  in  kind. 
Those  who  were  coloni  liberi  had  well-as- 
certained rights  of  property  as  against  the 
owner  of  the  land,  and  were  subject  to  few 
other  obligations;  while  another  class,  call- 
ed ccnsiti,  had  no  property,  and  what  they 
might  acquire  was  acquired  for  the  master. 
Howe,  Civ.  L.  (2d  ed.)  152. 

It  is  thought  by  Spence  not  improbable  that  many 
of  the  ceorls  were  descended  from  the  coloni  brought 
over  by  the  Romans.  The  names  of  the  coloni  and 
their  families  were  all  recorded  in  the  archives  of 
the  colony  or  district.  Hence  they  were  called 
adscriptitii.     1  Spence,  Eq.  Jur.  51. 

COLONY.  A  union  of  citizens  or  subjects 
who  have  left  their  country  to  people  an- 
other, and  remain  subject  to  the  mother- 
country.  U.  S.  v.  The  Nancy,  3  Wash.  C.  C. 
287,  Fed.  Cas.  No.  15,854. 

A  tract  of  territory  subordinate  to  the 
inhabitants  of  a  different  tract  of  country, 
and  ruled  by  authorities  wholly  or  in  part 
responsible  to  the  main  administration,  in- 
stead of  to  the  people  of  their  own  region, 
quoted  by  J.  B.  Thayer  (Legal  Essays  166) 
from  Prof.  Hart. 

In  conquered  or  ceded  countries,  their 
laws  remain  in  force  until  changed,  but 
where  a  colony  is  planted  in  an  uninhabited 
country,  the  colonists  carry  with  them  all 
the  English  laws  that  are  applicable  to  their 
condition  ;    1  Steph.  Com.  C-J. 

The  country  occupied  by  the  colonists. 

A  colony  differs  from  a  possession  or  a 
dependency.     See  Dependency. 

A  province  of  Canada  is  not  a  British 
colony  or  dependency  ;    [1011]  2  Ch.  58. 

See  Burge,  Colonial  Laws,  by  Renton  & 
Pbillimore. 

COLOR.  In  Pleading.  An  apparent  but 
legally  insufficient  ground  of  action  ad- 
mitted to  subsist  in  the  opposite  party  by 
the  pleading  of  one  of  the  parties  to  an  ac- 
tion. 3  Bla.  Com.  309 ;  4  B.  &  C.  547.  To 
give  color  is  to  give  the  plaintiff  credit  for 
having  an  apparent  or  pri)na  facie  right  of 
action,  independent  of  the  matter  intro- 
duced to  destroy  it,  in  order  to  introduce 
new  matter  in  avoidance  of  the  declaration. 
It  was  necessary   that  all  pleadings  in  con- 


fession   and    avoidance    should    give    color. 
See  3  Bla.  Com.  309,  n.;    1  Chit.  PL  531. 

i:.i  press  color  is  a  feigned  matter  pi' 
by  the  defendant,   from   which   the  plaintiff 
seems  to  have  a  good  ca 

in    truth    only    an    appearance   or    color    of 
cause.     Bacon,  Abr.    /  ,  I,  4 ;    1  < 

PI.  530.     It  was  not  allowed  in  the  plaintiff 
to  traverse  the  colorable  ri^ 
and  it  thus  became  necessary  to  answer  the 
plea    on    which    the    defendant    Intended    to 
rely. 

I  »i plied  color  is  that  which  arises  from  the 
nature  of  the  defence;  as  where  t!  ■ 
consists  of  matter  of  law,  the  facts  being  ad- 
mitted but  their  legal  sufficiency  deni< 
matters    alleged    in   the   plea.      1    Chit    PL 
528;    Steph.  PL  206. 

By  giving   color   the  defendant  could   re- 
move the  decision  of  the  case   from  before 
a    jury   and  introduce    matter    in    a    S] 
pli  a,    which  would   otherwise  oblige  him  to 
plead  the  general  issue;   3  Bla.  Com.  309. 

The  colorable  ricrht  must  be  plausible  or 
afford  a  supposititious  right  such  as  might 
induce  an  unlearned  person  to  imagine  it 
sufficient,  and  yet  it  must  be  in  le^ral  strict- 
ness inadequate  to  defeat  the  defendant's 
title  as  shown  in  the  plea;  Comyns,  Dij:. 
Pleading;  Keilw.  1036;  1  Chit.  PI.  531;  4 
Dane,  Abr.  552  ;    Archb.  PI.  211. 

COLOR  OF  OFFICE.  A  pretence  of  off. 
cial  right  to  do  an  act  made  by  one  who 
has  no  such  right  9  East  364.  Such  person 
must  be  at  least  a  de  facto  officer;  Bun-all 
v.  Acker,  23  Wend.  (N.  Y.)  606,  35  Am.  Dec. 
582. 

An  act  wrongfully  done  by  an  officer,  un- 
der the  pretended  authority  of  his  office, 
and  grounded  upon  corruption,  to  which  the 
office  is  a  mere  shadow  of  color.  Griffiths 
v.  Hardenbergb,  41  N.  Y.  464. 

COLOR    OF    TITLE.      In    Ejectment.      An 

apparent  title  to  land  founded  upon  a  writ- 
ten instrument,  such  as  a  deed,  levy  of  exe- 
cution, decree  of  court,  or  the  like.  3  Wait. 
Act.  &  Def.  17;  Brooks  v.  Bruyn,  35  I!'. 
Torrey  v.  Forbes,  94  Ala.  135.  10  South 
Color  of  title,  for  the  purpose  of  adverse 
possession  under  the  statute  of  limitations, 
is  that  which  has  the  semblance  or  appear- 
ance of  title,  legal  or  equitable,  but  which, 
in  fact,  is  no  title:  Sharp  v.  Furnace  Co., 
100  Va.  27,  40  S.  E.  10:;;  that  which  is  a 
title    in    appearance,     but    not    in    reality  ; 

W 1  v.  Conrad,  2  S.  D.  334,  50  N.  W.  0.',; 

qs  v.  Barnes,  TO  X.  <\  I'.xi;  Cameron 
v.  U.  s.,  1  18  U.  s.  301,  13  Sup.  Ct  51 
L.  Ed.  4.V.);  Limit  v.  1  ihloin.  116  la.  48,  SO 
X.  W.  214;  an  apparent  right;  Newlin  v. 
Rogers,  6  Kan.  App.  '.u<>.  "'l  Pac  315;  a 
title  prima  facie  good;  Farley  v.  Smith,  30 
Ala.  38;  Converse  v.  R.  Co.,  105  111.  204,  62 
N.  E.  SSL 

A  writing  upon  its  face  professing  to  pass 
title,  but  which  does  not  do  so,  either  from 


COLOR  OF  TITLE 


528 


COLOR  OF  TITLE 


a  want  of  title  in  the  person  making  it,  or 
from  the  defective  conveyance  used;  a  title 
that  is  imperfect,  but  not  so  obviously  so 
that  it  would  be  apparent  to  one  not  skilled 
in  the  law ;  Williamson  v.  Tison,  99  Ga. 
792,  26  S.  E.  766 ;  Head  v.  Phillips,  70  Ark. 
432,  68  S.  W.  S7S ;  Bloom  v.  Straus,  70  Ark. 
4S3,  69  S.  W.  549,  72  S.  W.  563. 

It  has  been  beld  to  be  wholly  immaterial 
bow  imperfect  or  defective  tbe  writing  may 
be,  considered  as  a  deed;  if  it  is  in  writing, 
and  defines  the  extent  of  the  claim,  it  is  a 
sign,  semblance  or  claim  of  title ;  Street  v. 
Collier,  118  Ga.  470,  45  S.  E.  294;  Mullan's 
Adm'r  v.  Carper,  37  W.  Va.  215,  16  S.  E. 
527;  that  strictly  speaking  it  cannot  rest 
in  parol,  see  Armijo  v.  Armijo,  4  N.  M. 
(Gild.)  57,  13  Pac.  92. 

A  state  grant  of  land,  included  in  an  older 
grant,  is  color  of  title ;  Weaver  v.  Love,  146 
N.  C.  414,  59  S.  E.  1041;  so  of  a  writing 
signed  by  the  heirs  of  an  owner  of  lands 
allotting  them  to  two  of  their  number  and 
relinquishing  their  own  right  thereto ;  Hen- 
ry v.  Brown,  143  Ala.  446,  39  South.  325; 
and  a  patent,  whether  good  against  the  sov- 
ereign or  void;  Bogardus  v.  Trinity  Church, 
4  Sandf.  Ch.  (N.  Y.)  633;  and  a  record  of 
proceedings  in   partition ;     Lindsay   v.   Bea- 

.     man,  128  N.  C.  189,  38  S.  E.  811. 

Color  of  title  and  claim  of  right  are  not 
synonymous  terms ;  Herbert  v.  Hanrick,  16 
Ala.  581.  "Claim  of  title"  does  not  neces- 
sarily include  "color  of  title" ;  Allen  v. 
Mansfield,  108  Mo.  343,  18  S.  W.  901.  To 
constitute  color  of  title,  there  must  be  a 
paper  title;  but  claim  of  title  may  rest 
wholly  in  parol;  Hamilton  v.  Wright,  30 
la.  4S0.  It  has  been  held  that,  to  give  color 
of  title,  a  conveyance  must  describe  the 
property;    Packard  v.  Moss,   68  Cal.  123,   8 

'  Pac.  81S;  Wood  v.  Conrad,  2  S.  D.  334,  50 
N.  W.  95 ;  that  it  must  designate  a  specified 
interest  in  the  land;  Etowah,  etc.,  Mining 
Co.  v.  Parker,  73  Ga.  53 ;  Wilson  v.  Johnson, 
145  Ind.  40,  3S  N.  E.  38,  43  N.  E.  930. 

A  tax  deed,  though  void  for  failure  to 
comply  with  the  statutes,  affords  color  of 
title;  Lantry  v.  Parker,  37  Neb.  353,  55  N. 
W.  962;  City  of  Chicago  v.  Middlebrooke, 
143  111.  265,  32  N.  E.  457;  Van  Gunden  v. 
Iron  Co.,  52  Fed.  83S,  3  C.  C.  A.  294.  To 
give  color,  the  conveyance,  etc.,  must  be  good 
in  form,  and  profess  to  convey  the  title  and 
be  duly  executed;  La  Frombois  v.  Jackson, 
8  Cow.  (N.  Y.)  5S9,  18  Am.  Dec.  463 ;  Latta 
v.  Clifford,  47  Fed.  614 ;  Irey  v.  Markey,  132 
Ind.  546,  32  N.  E.  309 ;  but  a  deed  to  a  tenant 
in  possession  from  one  who  has  no  title  to 
the  land  is  insufficient  as  a  basis  for  ad- 
verse possession;  McRoberts  v.  Bergman, 
132  N.  Y.  73,  30  N.  E.  261.  A  conveyance 
void  on  its  face  is  not  sufficient;  Moore  v. 
Brown,  11  How.  (U.  S.)  424,  13  L.  Ed.  751; 
Marsh  v.  Weir,  21  Tex.  97.  An  entry  is  by 
color  of  title  when  it  is  made  under  a  bond 
fide  and  not  pretended  claim  of  title  exist- 


ing in  another;  McCall  v.  Meely,  3  Watts 
(Pa.)  72.  A  quit-claim  deed  is  sufficient 
color  of  title  to  support  a  plea  of  title  by 
limitation ;  Parker  v.  Newberry,  83  Tex.  428, 
IS  S.  W.  815.  The  deed,  'or  color  of  title, 
under  which  a  person  takes  possession  of 
land,  serves  to  define  specifically  the  bound- 
aries of  his  claims;  Ellicott  v.  Pearl,  10  Pet. 
(U.  S.)  412,  9  L.  Ed.  475.  When  a  disseisor 
enters  upon  and  cultivates  part  of  a  tract, 
he  does  not  thereby  hold  possession  of  the 
whole  tract  constructively,  unless  this  entry 
was  by  color  of  title  by  specific  boundaries 
to  the  whole  tract;  color  of  title,  is  val- 
uable only  so  far  as  it  indicates  the  extent 
of  the  disseisor's  claim ;  Ege  v.  Medlar,  82 
Pa.  99.  See  Allen  v.  Mansfield,  108  Mo.  343, 
IS  S.  W.  901 ;  Sholl  v.  Coal  Co.,  139  111.  21, 
28  N.  E.  748.  A  person  taking  lands  under 
a  judicial  sale,  though  void,  has  color  of 
title;  Irey  v.  Mater,  134  Ind.  238,  33  N.  E. 
1018;  Mullan's  Adm'r  v.  Carper,  37  W.  Va. 
215,  16  S.  E.  527. 

See  15  L.  R.  A.  (N.  S.)  1178,  note;  Ad- 
verse Possession. 

COLORADO.  One  of  the  United  States  of 
America,  being  the  twenty-fifth  state  ad- 
mitted into  the  Union. 

The  territory  of  which  it  is  composed  was  ceded 
by  the  treaties  with  France  in  1803,  and  Mexico 
in   1848.     The  enabling  act  was   approved   March   3, 

1875,  and  the   state  was  finally  admitted  August  1, 

1876.  The  Constitution  was  adopted  in  Convention 
March  14,  1876,  and  ratified  July  1,  1876.  It  was 
amended  in  1902.    See  California  ;    Louisiana. 

Jan.  22,  1913,  article  XXI  added  to  the  Constitution 
providing  for  recall  from  office  of  public  officials, 
and  section  1,  article  VI,  amended  by  providing  for 
the  recall  of  decisions  and  section  6,  article  XX, 
amended  by  giving  home  rule  to  cities  and  towns. 

COLORE   OFFICII.     By  color  of  office. 

COLORED  PERSON.  This  term  general- 
ly refers  to  one  of  the  negro  race. 

There  is  no  legal  technical  signification  to 
this  phrase  which  the  courts  are  bound  judi- 
cially to  know ;  Pauska  v.  Daus,  31  Tex.  74. 
See  Negro. 

COLT.  An  animal  of  the  horse  species, 
whether  male  or  female,  not  more  than  four 
years  old.    Russ.  &  R.  416. 

COMBAT.  The  form  of  a  forcible  encoun- 
ter between  two  or  more  persons  or  bodies 
of  men;    an  engagement  or  battle.     A  duel. 

COMBINATION.  A  union  of  men  for  the 
purpose  of  violating  the  law.  See  Strike; 
Boycott  ;  Restraint  of  Trade  ;    Conspiracy. 

A  union  of  different  elements.  A  patent 
may  be  taken  out  for  a  new  combination  of 
existing  machines;  Moody  v.  Fiske,  2  Mas. 
112,  Fed.  Cas.  No.  9,745.     See  Patents. 

C0MBUSTI0  D0M0RUM.  Arson.  4  Bla. 
Com.  272. 

C0MBUSTI0  PECUNI/E.  Burning  of 
money  ;  the  ancient  method  of  testing  mixed 
and  corrupt  money  paid  into  the  exchequer, 
by  melting  it  down.     Black,  L.  Diet. 


COMES 


529 


COMITIA 


COMES.  In  Pleading.  A  word  used  in  a 
plea  or  answer  which  indicates  the  presence 
in  court  of  the  defendant. 

In  a  plea,  the  defendant  says,  "And  the  said  C  D, 
by  E  F,  Lis  attorney,  comes,  and  defends,"  etc.  The 
■word  comes,  vcnit,  expresses  the  appearance  of  the 
defendant  in  court.  It  is  taken  from  the  style  of 
the  entry  of  the  proceedings  on  the  record,  and 
formed  no  part  of  the  viva  voce  pleading.  It  is, 
accordingly,  not  considered  as,  in  strictness,  con- 
stituting a  part  of  the  plea;  1  Chit.  PI.  411;  Steph. 
PI.  132. 

COMES  (Lat.  comes,  a  companion).  An 
earl.     A  companion,  attendant,  or  follower. 

By  Spelman  the  word  is  said  to  have  been  first 
used  to  denote  the  companions  or  attendants  of  the 
Roman  proconsuls  when  they  went  to  their  prov- 
inces. It  came  to  have  a  very  extended  applica- 
tion, denoting  a  title  of  honor  generally,  always 
preserving  this  generic  signification  of  companion 
of,  br  attendant  on,  one  of  superior  rank. 

Among  the  Germans  the  comites  accompanied 
the  kings  on  their  journeys  made  for  the  purpose 
of  hearing  complaints  and  giving  decisions.  They 
acted  in  the  character  of  assistant  judges.  Tacitus 
de  Mor.  Germ.  cap.  11,  12 ;  1  Spence,  Eq.  Jur.  66; 
Spelman,  Gloss.  Among  the  Anglo-Saxons,  the 
comites  were  the  great  vassals  of  the  king,  who  at- 
tended, as  well  as  those  of  inferior  degree,  at  the 
great  councils  or  courts  of  their  kings.  The  term 
included  also  the  vassals  of  those  chiefs,  1  Spence, 
Eq.  Jur.  42.  Comitatus,  county,  is  derived  from 
comes,  the  earl  or  earlderman  to  whom  the  govern- 
ment of  the  district  was  intrusted.  This  authority 
he  usually  exercised  through  the  vice-comes,  or 
shire  reeve  (whence  our  sheriff).  The  comites  of 
Chester,  Durham,  and  Lancaster  maintained  an  al- 
most royal  state  and  authority;  and  these  counties 
have  obtained  the  title  of  palatine;  1  Bla.  Com.  116; 
County  Palatine.  The  title  of  earl  or  comes  has 
now  become  a  mere  shadow,  as  all  the  authority  Is 
exercised  by  the  sheriff  (vice-comes) ;  1  Bla.  Com. 
398. 

COMITAS  (Lat.).  Courtesy;  comity.  An 
indulgence  or  favor  granted  another  nation, 
as  a  mere  matter  of  indulgence,  without  any 
claim  of  right  made. 

COMITATUS  (Lat.  from  comes).  A  coun- 
ty. A  shire.  The  portion  of  the  country  un- 
der the  government  of  a  comes  or  count.  1 
Bla.  Com.  11G. 

An  earldom.  Earls  and  counts  were  origi- 
nally the  same  as  the  comitates.  1  Ld. 
Kay  in.  13. 

The  county  court,  of  great  dignity  among 
the  Saxons.     1  Spence,  Eq.  Jur.  42,  GG. 

The  retinue  which  accompanied  a  Roman 
proconsul  to  his  province.  Du  Cange.  A 
body  of  followers;  a  prince's  retinue.  Spel- 
man, Gloss. 

The  comitatus  was  the  personal  following 
of  professional  warriors.  Taylor,  Jurispr. 
21G. 

COMITES.  Persons  who  are  attached  to 
a  public  minister.  As  to  their  privileges,  see 
Respublica  v.  De  Longchamps,  1  Pall.  (Pa.) 
117,  1  L.  Ed.  59;  U.  S.  v.  Benner,  Baldw.  240, 
Fed.  Cas.  No.  14.5G8 ;    Ambassador. 

COMITIA    (Lat.).     The  public  assemblies 
of  the  Roman  people  at  which  all  the  most 
important  business  of  the  state  was   trans- 
acted, including  in  some  cases  even  the  trial 
Bouv.— 34 


of  persons  charged  with  the  commission  of 
crime.    Anthon,  Rom.  Antiq.  51. 

Comitia  Cai.ata.     A  i  of  the  comitia 

curiata  for  the  purpose  of  adrogation,  the 
confirmation  of  wills,  and  the  adoption  by  an 
heir  of  the  sacred  rites  which  followed  the 
Inheritance. 

iiiA  »'i:ntubiata  (called,  also,  comitia 
majora).     An  assemblage  of  the  i 
Ing  by  centuries.    The  1 1  □  this 

form  elected  their  own  officers,  and 

tensive   jurisdiction    for    the    trial    of 
crimes.     Anthon,  Rom.  Antiq.  52. 

Comitia  Curiata.  An  assemblage  of  all 
adult  male  citizens.  In  these  assemblJ 
one  of  the  plebs  could  vote.  They  were  held 
for  the  purpose  of  confirming  matters  acted 
on  by  the  senate,  for  electing  certain  high 
officers,  and  for  carrying  out  certain 

ances.    A  majority  of  the  votes  of  the 
curiae  (see  Curia)  determined  the  result  aft- 
er the  roll  of  each  curia  had  been  deter, 
by  a  majority  of  its  members.     Taylor,  Ju- 
rispr. 56. 

Comitia  Tiubuta.  Assemblies  to  create 
certain  inferior  magistrates,  elect  priests, 
make  laws,  and  hold  trials.  Their  power 
was  increased  very  materially  subsequently 
to  their  first  creation,  and  the  range  of  sub- 
jects acted  on  became  much  more  extensive 
than  at  first.  Anthon,  Rom.  Antiq.  62 ;  I 
Kent  ."  is. 

COMITY.    A  term  designating  the  practice 

by  which  one  court  follows  the  decision  of 
another  court  on  a  like  question,  though  not 
hound  by  the  law  of  precedents  to  do  so. 
The  question  most  frequently  arises  among 
the  federal  courts  of  different  circuits. 

The  importance  of  securing  uniformity  in 
the  law  as  administered  in  t'  ;1  cir- 

cuits in  patent  cases  is  so  great  that  a  de- 
cision of  a  court  of  co-ordinate  Jurisdiction 
should  be  followed  by  this  court  in  every 
case  where  the  question  as  present  d 
fairly  be  regarded  as  doubtful;  Gormley  A; 
Jeffery  Fire  Co.  v.  U.  S.  Agency.  177  Fed. 
G91,  101  C.  C.  A.  4T9;  Pratt  v.  Wright,  65 
Fed.  D9 :  Enterprise  Mfg.  Co.  v.  1 
Fed.   5 

A  decision  of  the  circuit  court  and  the 
circuit  court  of  appeals,  derived  from  th( 
cial  reports  upon  the  point  in  issue  (profits 
in  a  patent  case)  would  be  of  controlling 
weight  in  another  circuit  court  of  appeals 
both  on  the  ground  of  county  and  alse  as 
adjudications  entitled  to  the  greatest  re- 
spect; Taft,  C.  J.,  In  National  1 
&  Paper  Co.  v.  Novelty  Co.,  95  Fed.  9 

A  circuit  court  should,  in  the  orderly  ad- 
ministration of  the  law,  follow  the  ruling  of 
a  circuit  court  of  appeals  in  another  circuit  ; 
Coxe,  J.,  in  Hale  v.  Ililliker.  109  Fed.  J7:;  : 
but  the  courts  of  one  circuit  are  not  control- 
led by  the  views  of  a  patent  taken  by  the 
courts  of  another  circuit,  nor  absolved  from 
an  independent  examination  of  the  questions 


COMITY 


530 


COMITY 


involved;  Archbald,  J.,  in  Ciiniotti  Unhair- 
ing  Co.  v.  Fur  Refining  Co.,  120  Fed.  672 ;  the 
district  court  may  decline  to  follow  the 
weignt  of  authority  in  the  lower  federal 
courts;  McPherson,  X,  in  U.  S.  v.  Exp.  Co., 
119  Fed.  240. 

The  circuit  court  of  appeals  will  follow 
the  decision  of  another  circuit  court  of  ap- 
peals unless  under  especially  exceptional  cir- 
cumstances ;  Pittsburgh  Rys.  Co.  v.  Sullivan, 
166  Fed.  750,  92  C.  C.  A.  429 ;  U.  S.  v.  F.  A. 
Marsily  &  Co.,  1G5  Fed.  186,  91  C.  C.  A.  220 ; 
In  re  Baird,  154  Fed.  215 ;  Gill  v.  Austin,  157 
Fed.  234,  84  C.  C.  A.  677. 

"Comity  is  not  a  rule  of  law,  but  one  of 
practice,  convenience  and  expediency.  It  is 
something  more  than  mere  courtesy,  which 
implies  only  deference  to  the  opinion  of  oth- 
ers, since  it  has  a  substantial  value  in  secur- 
ing uniformity  of  decision,  and  discouraging 
repeated  litigation  of  the  same  question. 
But  its  obligation  is  not  imperative.  .  .  . 
Comity  persuades;  but  it  does  not  command. 
It  declares  not  how  a  case  shall  be  decided, 
but  how  it  may  with  propriety  be  decided. 
It  recognizes  the  fact  that  the  primary  duty 
of  every  court  is  to  dispose  of  cases  accord- 
ing to  the  law  and  the  facts;  in  a  word,  to 
decfde  them  right.  In  doing  so  the  judge  is 
bound  to  determine  them  according  to  his 
own  convictions.  .  .  .  It  is  only  in  cases 
where,  in  his  own  mind,  there  may  be  a 
doubt  as  to  the  soundness  of  his  views  that 
comity  comes  in  play  and  suggests  a  uni- 
formity of  ruling  to  avoid  confusion,  until  a 
higher  court  has  settled  the  law."  Mast, 
Foos  &  Co.  v.  Mfg.  Co.,  177  U.  S.  485,  488,  20 
Sup.  Ct.  708,  44  L.  Ed.  856. 

Where  questions  on  an  important  patent 
had  been  decided  in  two  circuits,  the  Su- 
preme Court  felt  itself  "bound  to  defer  some- 
what to  this  unanimity  of  opinion  on  the 
part  of  so  many  learned  and  distinguished 
judges" ;  Hobbs  v.  Beach,  180  U.  S.  389,  21 
Sup.  Ct  409,  45  L.  Ed.  5S6. 

In  the  seventh  circuit  decisions  in  patent 
cases  in  other  circuits  will  not  be  followed, 
but  each  case  will  stand  on  its  own  merits ; 
Welsbach  Light  Co.  v.  Gaslight  Co.,  100  Fed. 
648. 

There  is  no  statute  or  common  law  rule  by 
which  one  court  is  bound  to  abide  by  the  de- 
cisions of  another  court  of  equal  rank.  It 
does  so  simply  for  what  may  be  called  com- 
ity among  judges.  There  is  no  common  law 
or  statutory  rule  to  oblige  a  court  to  bow  to 
its  own  decisions ;  it  does  so  on  the  ground 
of  judicial  comity;  (18S4)  9  P.  D.  98,  per 
Brett,  M.  R. 

The  doctrine  has  no  application  to  foreign 
corporations.  It  "was  not  established  for 
the  purpose  of  giving  to  any  state  an  un- 
limited power  to  dispose  of  the  franchise  of 
acting  in  a  corporate  capacity  in  other  states. 
To  obtain  a  charter  for  the  purpose  of  evad- 
ing the  laws  of  a  foreign  state,  under  cover 
of  the  rule  of  comity,  would  be  a  fraud  upon 


the  state  granting  the  charter;  and  to  at- 
tempt to  act  under  such  charter  in  a  foreign 
state  would  be  a  fraud  upon  the  latter ;"  Na- 
tional Lead  Co.  v.  Paint  Store  Co.,  80  Mo. 
App.  247,  271. 

It  would  seem  that  the  use  of  the  term 
"comity"  in  connection  with  cases  where  a 
court  of  one  state  under  the  rule  of  the  con- 
flict of  laws  adjudicates  a  case  upon  the  law 
of  another  state  is  not  correct.  When  a  case 
involves  a  transaction  in  another  jurisdiction 
and  is  properly  decided  upon  the  law  of 
that  other  jurisdiction,  under  well  settled 
rules  of  the  conflict  of  laws,  the  law  of  that 
other  jurisdiction  is  applied  as  a  matter  of 
right,  and  not  upon  the  ground  of  comity. 

Of  this  use  of  the  term  Mr.  Dicey  says: 
"The  term  'comity,'  as  already  pointed  out, 
is  open  to  the  charge  of  implying  that  the 
judge,  when  he  applies  foreign  law  to  a 
particular  case,  does  so  as  a  matter  of  ca- 
price or  favor." 

Cases  such  as  the  following  may  perhaps 
illustrate  another  class  not  included  in  either 
of  the  above  classes :  "A  court  of  equity  in 
one  state  may  enjoin  parties  from  proceeding 
in  a  court  of  law  in  another  state ;  but  on 
principles  of  courtesy,  and  perhaps  of  policy, 
this  power  should  not  be  exercised  where  the 
court  of  law  has  a  concurrent  jurisdiction, 
which  was-  first  assumed  and  exercised  over 
the  subject  matter,  unless  there  should  exist 
some  peculiar  equitable  ground  for  so  doing." 
Bank  of  Bellows  Falls  v.  R.  Co.,  28  Vt  470. 

COMITY  OF  NATIONS.  The  most  appro- 
priate phrase  to  express  the  true  foundation 
and  extent  of  the  obligation  of  the  laws  of 
one  nation  within  the  territories  of  another. 
It  is  derived  altogether  from  the  voluntary 
consent  of  the  latter,  and  it  is  inadmissible 
when  it  is  contrary  to  its  known  policy,  or 
prejudicial  to  its  interests.  In  the  silence  of 
any  positive  rule  affirming  or  denying  or  re- 
straining the  operation  of  foreign  laws, 
courts  of  justice  presume  the  tacit  adoption 
of  them  by  their  own  government,  unless 
repugnant  to  its  policy,  or  prejudicial  to  its 
interests.  It  is  not  the  comity  of  the  courts, 
but  the  comity  of  the  nation  which  is  ad- 
ministered and  ascertained  in  the  same  way 
and  guided  by  the  same  reasoning  by  which 
all  other  principles  of  the  municipal  law 
are  ascertained  and  guided.  Story,  Confl. 
L.  §  38. 

COMMANDER-IN-CHIEF.  The  president 
is  made  commander-in-chief  of  the  army  and 
navy  of  the  United  States  and  of  the  militia 
when  in  actual  service,  by  art.  ii.  §  2  of  the 

constitution. 

COMMANDITE.  In  French  Law.  A  part- 
nership in  which  some  furnish  money,  and 
others  furnish  their  skill  and  labor  in  place 
of  capital.     A  special  or  limited  partnership. 

Those  who  embark  capital  in  such  a  partnership 
are  bound  only  to  the  extent  of  the  capital  so  in- 
vested;   Guyot,  Rep.  Univ. 

The   business   being    carried   on    in    the    name    of 


COMMANDITE 


531 


COMMJ.XDATUS 


some  of  the  partners  only,  It  Is  said  to  be  Just  that 
those  win  are  unknown  should  lose  only  the  capital 
which  they  have  invested,  from  which  alone  they 
can  receive  an  advantage.  Under  the  name  of  lim- 
ited partnerships,  6uch  arrangements  are  now  al- 
lowed by  many  of  the  states ;  although  no  such 
partnerships  are  recognized  at  common  law.  Trou- 
bat,  Lim.   Partn.   cc.   3,  4. 

The  term  includes  a  partnership  containing  dor- 
mant rather  than  special  partners.  Story,  Partn. 
§    109. 

COMMENCEMENT  OF  A  DECLARA- 
TION. That  part  of  the  declaration  which 
follows  the  venue  and  precedes  the  circum- 
stantial statement  of  the  cause  of  action.  It 
formerly  contained  a  statement  of  the  names 
of  the  parties,  and  the  character  in  which 
they  sue  or  are  sued,  if  any  other  than  their 
natural  capacity;  of  the  mode  in  which  the 
defendant  had  been  brought  into  court,  and 
a  brief  statement  of  the  form  of  action.  In 
modern  practice,  however,  in  most  cases, 
little  else  than  the  names  and  character  of 
the  parties  is  contained  in  the  commence- 
ment. 

COMMENDA.  In  French  Law.  The  deliv- 
ery of  a  benefice  to  one  who  cannot  hold  the 
legal  title,  to  keep  and  manage  it  for  a  time 
limited  and  render  an  account  of  the  pro- 
ceeds.   Guyot,  R/6p.  U7iiv. 

In  Mercantile  Law.  An  association  in 
which  the  management  of  the  property  was 
Intrusted  to  individuals.  Troubat,  Lim. 
Partn.  c.  3,  §  27. 

COMMENOAM.  In  Ecclesiastical  Law. 
The  appointment  of  a  suitable  clerk  to  hold 
a  void  or  vacant  benefice  or  church  living 
until  a  regular  pastor  be  appointed.  Hob. 
144;    Latch  23G. 

In  Louisiana.  A  species  of  limited  part- 
nership. 

It  is  formed  by  a  contract,  by  which  one  person 
or  partnership  agrees  to  furnish  another  person  or 
partnership  a  certain  amount,  either  in  property  or 
money,  to  be  employed  by  the  person  or  partnership 
to  whom  it  is  funished,  in  his  or  their  own  name  or 
firm,  on  condition  of  receiving  a  share  in  the  profits 
in  the  proportion  determined  by  the  contract,  and 
of  being  liable  to  losses  and  expenses  to  the  amount 
furnished,  and  no  more.  A  similar  partnership  ex- 
ists in  France.  Code  de  Comm.  26,  33;  Sirey,  12,  pt. 
2,  p.  25.  He  who  makes  this  contract  is  called,  in 
respect  to  those  to  whom  he  makes  the  advance  of 
capital,  a  partner  in  commendam.  La.  Civ.  Code, 
art.  2811. 

See  also  Mitchell,  in  3  Sel.  Essays,  Anglo- 

Aiuer.  L.  II.  is:;. 

COMMENDATORS.     In    Ecclesiastical   Law. 

Secular  persons  upon  whom  ecclesiastical 
benefices  are  bestowed.  So  called  because 
they  are  commended  and  intrusted  to  their 
oversight.    They  are  merely  trustees. 

COMMENDATORY  LETTERS.  In  Eccle- 
siastical Law.  Such  as  are  written  by  one 
bishop  to  another  on  behalf  of  any  of  the 
clergy  or  others  of  his  diocese  travelling 
thither,  that  they  may  be  received  among  the 
faitbful ;  or  that  the  clerk  may  be  promoted; 
or  necessaries  administered  to  others. 
Wharton. 


COMMENDATUS.  In  Feudal  Law.  One 
whu  by  voluntary  homage  puts  himself  under 
the  protection  of  a  superior  lord.  Cowell ; 
Spelman,  Gloss. 

COMMERCE.  The  various  agreements 
which  have  for  their  object  facilitating  the 
exchange  of  the  products  of  the  earth 
industry  of  man,  with  an  intent  v>  realize  a 
profit  Pardessus,  Dr.  Com.  n.  1.  Any  recip- 
rocal agreements  between  two  pi 
which  one  delivers  to  the  other  a  thing, 
which  the  latter  accepts,  and  for  which  he 
pays  a  consideration:  if  the  consideration 
be  money,  it  is  called  a  sale;  if  any  other 
thing  than  money,  it  is  called  exchange  or 
barter.  Domat,  Dr.  Pub.  liv.  1,  tit.  7,  s.  1, 
n.  2. 

"Commerce  among  the  several  states  com- 
prehends traffic,  intercourse,  trade,  naviga- 
tion, communication,  the  transit  of  persons 
and  the  transmission  of  messages  by  tele- 
graph— indeed,  every  species  of  commercial 
intercourse  among  the  several  states,  but  not 
to  that  commerce  'completely  internal,  which 
is  carried  on  between  man  and  man,  in  a 
state,  or  between  different  parts  of  the  same 
state,  and  which  does  not  extend  to  or  affect 
other  states.'"  Harlan.  J.,  in  Adair  v.  U.  S., 
20S  U.  S.  161,  177,  28  Sup.  Ct,  277,  52  L.  Ed. 
436,  13  Ann.  Cas.  764. 

It  has  been  frequently  said  by  the  Supreme 
Court  that  commerce  includes  intercourse, 
though  usually  the  term  is  qualified  as  "com- 
mercial intercourse" ;  Gibbons  v.  Ogden,  9 
Wheat.  (TJ.  S.)  1,  6  L.  Ed.  2::  :  V.  S.  v.  E.  C. 
Knight  Co.,  156  U.  S.  1,  15  Sup.  Ct.  249,  39 
L.  Ed.  325;  Welton  v.  Missouri,  91  I".  S.  275, 
280,  23  L.  Ed.  347;  Peusacola  Telegraph  Co. 
v.  Western  Telegraph  Co.,  96  U.  S.  1.  9,  24 
L.  Ed.  708;  Mobile  County  v.  Kimball,  102 
U.  S.  691,  702,  2G  L.  Ed.  238  (where  the 
phrase  is  "intercourse  and  traffic");  Addy- 
ston  Pipe  &  Steel  Co.  v.  U.  s..  17."  f.  S.  211, 
241,  20  Sup.  Ct.  96,  44  L.  Ed.  13G;  Lindsay 
&  P.  Co.  v.  Mullen.  176  U.  S.  126,  20  Sup.  Ct. 
325,  44  L.  Ed.  400;  Interstate  Commerce 
Commission  v.  Brimson,  154  I!.  S.  4-17.  47<i.  14 
Sup.  Ct.  1125.  38  L.  Ed.  1047;  Lottery  Case. 
188  U.  S.  321,  346,  23  Sup.  Ct.  321,  47  L.  Ed. 
492.  The  first  expression  of  this  was  by 
Marshall,  C.  J.,  in  Gibbons  v.  Ogden,  9 
Wheat.  (U.  S.)  1,  6  L.  Ed.  2.",;  quoted  by 
Fuller,  C.  J.,  in  U.  S.  v.  Knight  Co.,  156  U. 
S.  1,  15  Sup.  Ct.  249,  39  L.  Ed.  325;  and 
characterized  by  White,  .1.,  as  a  "luminous 
definition"  in  Northern  Securities  Co.  v.  I'. 
S.,  193  U.  S.  197,  24  Sup.  Ct.  436,  4S  L.  Ed. 
679,  to  the  effect  that  commerce  is  something 
more  than  traffic;  "it  is  Intercourse;  it  de- 
scribes the  commercial  Intercourse  between 
nations  and  parts  of  nations  in  all  its 
branches,  and  is  regulated  by  prescribing 
rules  for  carrying  on  that  intercourse."  This 
has  been  practically,  if  not  literally,  quoted 
in  all  the  cases  cited.  There  is  nothing  in 
the  decisions  to  define  or  limit  so  broad  a 
term   as  intercourse,   except   the   word  com- 


COMMERCE 


532 


COMMERCE 


mercial,  usually  attached  to  It.  As  it  is 
hardly  likely  that  the  courts  iuteuded  to  say 
that  commerce  is  intercourse  in  the  sense  in 
which  it  is  defined  "communication  between 
persons  or  places"  ;  C«nt.  Diet. ;  it  is  probable 
that  the  word  was  not  iutended  to  be  used  to 
express  more  than  such  intercourse  as  is  con- 
nected with  traffic  and  transportation  with 
foreign  countries  or  between  the  states. 

"The  word  'commerce'  is  undoubtedly,  in 
Its  usual  sense,  a  larger  word  than  'trade,' 
in  its  usual  sense.  Sometimes  'commerce'  is 
used  to  embrace  less  than  'trade'  and  some- 
times 'trade'  is  used  to  embrace  as  much  as 
'commerce.'  They  are  ...  in  this  stat- 
ute (Sherman  Act)  synonymous;"  U.  S.  v. 
Patterson,  55  Fed.  605,  639. 

"The  term  'commerce'  comprehends  more 
than  a  mere  exchange  of  goods;  it  embraces 
commercial  intercourse  in  all  its  branches, 
including  transportation  of  passengers  and 
property  by  common  carriers,  whether  car- 
ried on  by  water  or  by  land;"  In  re  Second 
Employers'  Liability  Cases,  223  U.  S.  1,  46, 
32  Sup.  Ct.  169,  56  L.  Ed.  327,  38  L.  R.  A. 
(N.  S.)  44;  the  "movement  of  persons  as 
well  as  of  property;"  Hoke  v.  U.  S.,  227  U. 
S.  308,  33  Sup.  Ct.  281,  43  L.  R.  A.  (N.  S.) 
906. 

"Transportation  of  passengers  and  freight 
from  one  state  to  another,  or  through  more 
than  one  state  to  another,  or  through  more 
than  one  state,  whether  by  land  or  water, 
is  commerce  within  the  meaning  of"  the 
commerce  clause,  "and  the  words  of  the1 
grant  comprehend  every  species  of  commer- 
cial intercourse,  and  the  power  is  complete 
in  itself,  and  may  be  exercised  to  its  utmost 
extent  without  limitations  other  than  such 
as  are  prescribed  in  the  Constitution ;" 
Sweatt  v.  R.  Co.,  3  Cliff.  (U.  S.)  339,  350, 
Fed.  Cas.  No.  13,684. 

It  includes  navigation  and  the  control  of 
all  navigable  waters  of  the  United  States ; 
Gilman  v.  Philadelphia,  3  Wall.  (U.  S.)  713, 
724,  18  L.  Ed.  96;  quoted  in  Scranton  v. 
Wheeler,  179  U.  S.  141,  21  Sup.  Ct.  48,  45  L. 
Ed.  126,  as  well  as  the  improvement  of  har- 
bors, bays  and  rivers ;  id.,  quoting  Mobile 
County  v.  Kimball,  102  U.  S.  691,  26  L.  Ed. 
238. 

Commerce  is  not  a  technical  legal  concep- 
tion, but  a  practical  one  drawn  from  the 
course  of  business ;  Savage  v.  Jones,  225  U. 
S.  501,  32  Sup.  Ct.  715,  56  L.  Ed.  1182. 

"Nothing  is  more  complex  than  commerce"; 
6  Webster's  Wks.  8. 

Retail  trade  as  well  as  wholesale  is  in- 
cluded in  the  idea  of  commerce;  Gucken- 
heimer  v.  Sellers,  81  Fed.  1000. 

Commerce  takes  its  character  as  inter- 
state or  foreign  when  it  is  actually  shipped 
or  started  in  the  course  of  transportation  to 
another  state  or  to  a  foreign  country ;  Rail- 
road   Commission   of   Louisiana   v.    Ry.  Co., 

229  U.  S.  336,  33'Sup.  Ct.  837,  57  L.  Ed. ; 

Reid  v.  R.  Co.,  153  N.  C.  490,  69  S.  E.  618. 


It  does  not  end  on  the  arrival  of  the  train 
at  the  terminal,  but  the  breaking  up  of  the 
train  and  removal  of  goods  to  other  trains 
is  part  of  it ;  St  Louis,  S.  F.  &  T.  R.  Co.  v. 
Seale,  229  U.  S.  156,  33  Sup.  Ct.  651,  57  L. 

Ed.  ;    it  continues  until  the  delivery  to 

the  consignee  ;  Barrett  v.  New  York,  183  Fed. 
793;  id.,  1S9  Fed.  268,  where  in  two  hearings 
it  was  held  that  an  express  company  taking 
goods  from  a  steamer  or  railroad  and  trans- 
porting them  through  the  street  of  the  city 
to  the  consignee  is  still  engaged  in  inter- 
state commerce.  The  transportation  to  be 
effective  under  the  commerce  clause  takes  ef- 
fect at  the  time  when  it  "commences  its  final 
movement  for  transportation"  out  of  the 
state ;  Coe  v.  Errol,  116  U.  S.  517,  6  Sup.  Ct. 
475,  29  L.  Ed.  715;  Diamond  Match  Co.  v. 
Ontonagon,  1S8  U.  S.  82,  23  Sup.  Ct.  266,  47 
L.  Ed.  394 ;  in  both  of  which  cases  the  prop- 
erty was  to  remain  within  the  state  of  depar- 
ture until  it  was  convenient  to  transport  it ; 
but  in  Ogilvie  v.  Crawford  County,  7  Fed. 
745,  where  it  was  stored  awaiting  transporta- 
tion it  was  protected  from  taxation  ;  Ogilvie 
v.  Crawford  bounty,  7  Fed.  745;  and  to  the 
same  effect  is  Standard  Oil  Co.  v.  Bachelor, 
89  Ind.  1. 

The  decisions  in  cases  arising  under  the 
federal  Employers'  Liability  Act  involve  in- 
teresting questions  as  to  when  a  workman  is 
engaged  in  interstate  commerce,  and  the  test 
is  said  to  be — "is  the  work  in  question  a  part 
of  the  interstate  commerce  in  which  the  car- 
rier is  engaged?"  Pedersen  v.  R.  Co.,  229 
U.  S.  146,  33  Sup.  Ct.  648,  57  L.  Ed.  ,  cit- 
ing many  cases.  In  that  case  it  was  held 
that  one  carrying  materials  (bolts  or  rivets) 
to  be  used  in  repairing  an  instrumentality  of 
interstate  commerce  (a  bridge)  was  engaged 
in  such  commerce,  although  injured  by  an 
intrastate  train;  so  also  was  an  engineer 
while  taking  his  engine  from  the  roundhouse 
to  the  track  on  which  were  cars  to  be  hauled 
by  him  in  interstate  commerce ;  Johnson  v. 
Southern  P.  Co.,  196  U.  S.  1,  21,  25  Sup.  Ct. 
158,  49  L.  Ed.  363;  Lamphere  v.  R.  &  Nav. 
Co.,  196  Fed.  336,  116  C.  C.  A.  156.  See  Em- 
ployers' Liability  Act. 

Contracts  generally  seem  not  to  be  sub- 
ject to  the  commerce  clause.  It  is  said  by  a 
text-writer  on  the  subject  that  to  bring  them 
within  its  scope  some  other  element  must  be 
involved  such  as  "transportation  of  property 
or  transmission  of  intelligence,  as  by  tele- 
graph" ;    Cooke,  Com.  CI.  §  6. 

Insurance  is  not  commerce ;  Paul  v.  Vir- 
ginia, 8  Wall.  (U.  S.)  168,  19  L.  Ed.  357; 
Fire  Ass'n  of  Philadelphia  v.  New  York,  119 
U.  S.  110,  7  Sup.  Ct.  108,  30  L.  Ed.  342;  Noble 
v.  Mitchell,  164  U.  S.  367,  17  Sup.  Ct.  110,  41 
L.  Ed.  472;  New  York  Life  Ins.  Co.  v.  Cra- 
vens, 178  U.  S.  389,  20  Sup.  Ct.  962,  44  L.  Ed. 
1116;  New  York  Life  Ins.  Co.  v.  Deer  Lodge 

County,  231  U.  S.  ,  34  Sup.  Ct.  167,  58  L. 

Ed.  ,  decided  Dec.  15,  1913,  but  not  yet 

officially  reported ;  nor  are  contracts  for  per- 


COMMERCE 


533 


COMMERCE 


sonal  services  between  persons  in  different 
states;  Williams  v.  Fears,  17!)  U.  S.  270,  21 
Sup.  Ct.  128,  45  L.  Ed.  180;  Smith  v.  Jai 
103  Tenn.  673,  54  s.  W.  981,  47  L.  R.  A.  416; 
though  Boothe  v.  King,  71  Ala.  499,  seems 
contra. 

Congress  lias  power  by  the  constitution  to 
.<•  commerce  with  foreign  natioi 
an. <ni-  the  severa]  Btates,  and  with  the  In- 
dian tribes;  Const  U.  S.  Art  I,  §  8;  1  £ent 
431 ;  Story,  Const  8   L052. 

The  power  conferred  upon  congress  by 
the  above  clause  is  exclusive,  so  far  as  it 
relates  to  matters  within  its  purview  which 
are  national  in  their  character,  and  admit  of 
a  requisite  uniformity  of  regulation 
tog  all  the  Btates.  That  clause  was  adopt- 
ed in  order  to  secure  such  uniformity  against 
discriminating   state   legislation. 

Such"  power  is  not  restricted  by  state  au- 
thority; Pembina  ConsoL  Silver  Mln.  &  .Mill. 
Co.  v.  Pennsylvania,  125  D.  S.  181,  8  Sup. 
Ct  737,  31  L  Ed.  650;  but  a  state  statute, 
which  conflicts  with  the  actual  exercise 
of  the  powers  of  congress,  must  give  way  to 
the  supremacy  of  the  national  authority; 
Smith  v.  Alabama,  124  U.  S.  465,  8  Sup.  Ct. 
564,  31  L.   Ed.  508. 

The  power  to  regulate  commerce  with 
the  Indian  tribes  which  is  included  in  the 
commerce  clause  may  cover  sales  and  trans- 
portation entirely  within  a  state;  U.  S.  v. 
Holliday,  3  Wall.  (U.  S.)  407,  18  L.  Ed.  182 
(which  was  outside  of  any  reservation);  or 
by  an  Indian  to  another;  Q.  S.  v.  Shaw- 
Mux,  2  Sawy.  .''.01,  Fed.  Cas.  16,268;  but 
not  a  sale  to  an  Indian  who  had  acquired 
citizenship:  In  re  Heff,  197  U.  S.  488,  25 
Sup.  Ct.  500,  49  L.  Ed.  848;  and  see  Far- 
rell  v.  U.  S.,  110  Fed.  942,  49  C.  C.  A.  183, 
which  must  be  considered  as  overruled  by 
the  Supreme  Court  case.  Under  the  protec- 
tion of  this  clause  a  state  tax  on  goods  of 
a  trader  with  the  Indians  was  void;  Foster 
v.  Board  of  County  Com'rs,  7  Minn.  140 
(Gil.  S4);  but  a  contract  between  a  state  and 
Indians  was  not;  In  re  Narragansett  In- 
dians, 20  R.  I.  715,    10  Atl.  347. 

The  Constitutional  Potqer  of  Regulation. 
The  power  of  congress  to  regulate  foreign 
commerce  is  complete  in  itself  and  no  in- 
dividual has  a  vested  right  to  trade  with 
foreign  nations  otherwise  than  subject  to 
the  power  of  congress  to  determine  what 
and  on  what  terms  articles  may  be  Import- 
ed; Butt  field  v.  Stranahan,  192  U.  S.  470, 
24  Sup.  Ct  349,  48  L.  Ed.  525;  while  every 
instrumentality  of  domestic  commerce  is  sub- 
ject to  state  control,  every  instrumentality 
of  interstate  commerce  may  be  reached  and 
controlled  by  national  authority,  so  far  as 
to  compel  it  to  respect  the  rules  for  such 
commerce  lawfully  established  by  congress; 
Northern  Securities  Co.  v.  U.  S.,  193  U.  S. 
350,  24  Sup.  Ct.  436,  48  L.  Ed.  679. 

The  right  to  carry  on  interstate  commerce 
is  not  derived  from  the  state  but  is  a  con- 


stitutional   right    of    every    citizen    of    the 

United  states,  and  i  iloue  can  limit 

the   right   of  corporations   to    engage  in    it; 

Western    Union    Tel<  Co.    v.    K.. 

216  O.  S.  l,  30  Sun. 

Ludwlg    v.      >  h    Co.,    216    i 

30  sup.  Ct  280,  54  L.  Ed.   123;  Pullm 

v.  Kansas,  216  I 

L.  Ed.  378,  where  it  was  also  held  I 

company   doing   interstate   bu- 

requlre  permission  of  the  state  to  enter  it. 

'1  he    power    of    c<  i  ver     Into 

commerce  includes  not  only  imposing 
lations   but   insuring   their  efficiency;   Second 
Employers'  Liability  Cases,  223  D.  S.  l.  32 
Sup.  Ct  169,  56  I-.  Ed.  327,  38  L.  B.  A.  (N. 
s.)  44. 

in  the  Second  Employers'  Liability  i 
223  r.  s.  1,40.  32  Sup.  Ct  169,  56  L  ! 
38   L.   B.   A.  (X.   S.)  4  1   (opinion  by  Vai 
vanter,  J.),  the  court  enunciated  six  dj 

Itions    as    having    become    "so    firmly 
settled  as  no  longer  to  be  open  to  disi 
with  respect  to  the  construction  and  enforce- 
ment of  the  federal  power  to  regulate  inter- 
state  commerce  and   to   enact  such   le 
tion  as  might  be  necessary  for  that  pi,; 

"1.  The  term  'commerce'  comprehends 
more  than  the  mere  exchange  of  goods.  It 
embraces  commercial  intercourse  in  all  its 
brandies,  including  transportation  oJ 
sengers  and  property  by  common  carriers, 
whether   carried   on   by   water  or   by   land. 

"2.  The  phrase   'among  the  several   Bl 
marks    the    distinction,    for    the    purpose    of 
governmental   regulation,  merce 

which  concerns  two  or  more  states  and  com- 
merce which  is  confined  to  a  single 
does  not  affect  other  states,  the  power  to 
regulflte  the  former  being  conferred  upon 
congress  and  the  regulation  of  the  latter  re- 
maining with  the  states  severally. 

"3.  'To    regulate,'   in    the   sense   Int 
is    to   foster,   protect,   control    and    restrain, 
with  appropriate  regard  for  the  welfare  of 
those   who   are   immediately   concerned   and 
of  the  public  at  la  i 

"4.  This  power  over  commerce  among  the 
states,  so  conferred  upon  congress,  is  com- 
plete in  itself,  extends  incidentally  to  every 
instrument  and  agent  by  which  such  com- 
merce is  carried  on.  may  be  exerted  to  its 
almost  extent  over  every  part  of  such  com- 
merce, and  is  subject  to  no  limitations  save 
such  as  are  prescribed  in  the  constitution. 
But  of  course,  it  does  not  extend  to  any  mat- 
ter or  thing  which  docs  not  have  a  real  or 
i  Hal  relation  to  some  part  of  such 
comme 

"5.  Among  the  Instruments  and  agents  to 
which  the  power  extends  are  the  railroads 
over  which  transportation  from  one 
to  another  is  conducted,  the  engines  and 
cars  by  which  such  transportation  is  affect- 
ed, and  all  who  are  in  any  wise  engaged  in 
such  transportation,  whether  as  common 
carriers  or  as  their  employes. 


COMMERCE 


534 


COMMERCE 


"6.  The  duties  of  common  carriers  in  re- 
spect of  the  safety  of  their  employes,  while 
both  are  engaged  in  commerce  among  the 
states,  and  the  liability  of  the  former  for  in- 
juries sustained  by  the  latter,  while  both 
are  so  engaged,  have  a  real  or  substantial 
relation  to  such  commerce  and  therefore 
are  within  the  range  of  this  power." 

In  the  Covington  Bridge  Case,  Covington 
&  C.  Bridge  Co.  v.  Kentucky,  154  U.  S.  204, 
14  Sup.  Ct.  1087,  38  L.  Ed.  962,  the  Supreme 
Court  cases  with  respect  to  the  power  of 
the  states  over  commerce  have  been  divided 
into  three  classes,  which  division  is  repeated 
in  Southern  R.  Co.  v.  Reid,  222  U.  S.  424,  32 
Sup.  Ct.  140,  56  L.  Ed.  257 : 

First,  those  in  which  the  power  of  the 
state  is  exclusive.  (Cases  in  which  this  pow- 
er may  be  exercised  by  the  states  are  enu- 
merated infra  under  the  subtitle  "When  the 
State  Power  is  Exclusive.") 

Second,  those  in  which  the  states  may  act 
in  the  absence  of  legislation  by  congress.  In 
the  case  cited,  it  is  said  that  these  cases 
embrace  what  may  be  termed  "concurrent 
jurisdiction,"  but  it  does  not  appear  that 
such  jurisdiction  ever  exists,  because  the 
power  of  the  states  is  terminated  instantly 
by  legislation  of  congress  on  the  subject. 
(See  infra,  under  subtitle  "State  Action 
Valid  in  Case  of  Non-Action  by  Congress.") 

Third,  cases  in  which  the  action  of  con- 
gress is  exclusive  and  the  states  cannot  act 
at  all.  (See  infra,  under  subtitle  "When  the 
Power  of  Congress  is  Exclusive.") 

Neither  this,  nor  in  fact  any  other,  classi- 
fication of  cases  is  satisfactory,  nor  is  there 
any  one  of  them  which  has  been  uniformly 
adhered  to  by  the  Supreme  Court. 

It  may  probably  be  fairly  stated  as  the 
result  of  the  decisions  on  the  commerce 
clause  that  while  the  states  have  exclusive 
jurisdiction  of  certain  local  matters,  which 
are  controlled  by  virtue  of  its  reserved  police 
power,  and  they  have  also  exclusive  control 
of  intrastate  commerce,  the  clause  of  the 
constitution  under  consideration  gives  to 
congress  absolute  control  of  interstate  and 
foreign  commerce,  to  become  at  its  will  ex- 
clusive of  all  other  authority.  Upon  many 
subjects  affecting  this  commerce,  the  states 
do  legislate  and  their  statutes  are  held  valid, 
but  this  is  solely  because  congress  has  not 
acted,  and  once  it  does  so,  the  power  of  the 
state  ends.  State  legislation  is  not  forbid- 
den in  matters  either  local  in  their  opera- 
tion, or  intended  to  be  mere  aids  to  com- 
merce, for  which  special  regulations  can 
more  effectually  provide,  such  as  harbors, 
pilotage,  beacons,  buoys,  and  other  improve- 
ments of  harbors,  bays,  and  rivers  within  a 
state,  if  their  free  navigation  be  not  there- 
by impaired ;  congress  by  its  inaction  in 
such  matters  virtually  declares  that  till  it 
deems  best  to  act,  they  may  be  controlled 
by  the  states ;  County  of  Mobile  v.  Kimball, 
102  U.   S.  691,  26  L.  Ed.  238,  per  Field,  J. 


As  to  certain  subjects  the  power  of  congress 
is  exclusive,  and  the  states  cannot  inter- 
fere in  any  case,  and  the  line  of  distinction 
is  plainly  marked.  The  cases  in  which  the 
state  may  act  so  long  as  congress  does  not, 
are  those  which  relate  to  matters  of  local 
concern,  and  which  do  not  require  a  general 
uniform  regulation  applying  to  the  whole 
country;  Rhea  v.  R.  Co.,  50  Fed.  16;  Card- 
well  v.  Bridge  Co.,  113  U.  S.  205,  5  Sup. 
Ct.  423,  28  L.  Ed.  959.  On  the  other  hand, 
as  to  all  matters  affecting  interstate  com- 
merce, directly  or  indirectly,  national  in  char- 
acter and  requiring  a  uniform  system  or 
regulation  throughout  the  country,  the  pow- 
er of  congress  to  regulate  them  is  exclusive. 
This  in  brief  seems  to  be  the  result  of  the 
decisions,  which  will  be  found  cited  in  this 
title  under  the  various  subdivisions  of  the 
subject.  The  distinction  between  cases 
where  the  state  may  or  may  not  act  in  case 
of  non-action  by  congress,  is  well  expressed 
in  Leisy  v.  Hardin,  135  U.  S.  100,  10  Sup. 
Ct.  681,  34  L.  Ed.  128,  to  this  effect:  The 
power  to  regulate  it  between  the  states  is  a 
unit,  but  the  states  may  legislate  with  regard 
to  it  in  view  of  local  needs  and  circumstanc- 
es where  particular  subjects  within  its  op- 
eration do  not  require  the  application  of  a 
general  or  uniform  system,  but  where  the 
subject  does  require  a  uniform  system,  as 
between  the  states,  the  power  is  exclusively 
in  congress  and  cannot  be  encroached  upon 
by  the  states.  In  that  very  leading  case 
it  was  held  that  the  right  of  importation  of 
intoxicating  liquors  from  one  state  to  an- 
other includes  the  right  of  sale  in  the  origi- 
nal packages  at  the  place  where  the  im- 
portation terminates  ;  so  also  ;  Lyng  v.  Mich- 
igan, 135  U.  S.  161,  10  Sup.  Ct.  725,  34  L. 
Ed.  150. 

It  is  to  be  noted,  however,  in  connection 
with  this  classification  of  the  cases,  that 
there  are  many  instances  in  which  congress 
does  act  upon  that  intrastate  commerce 
which  is  primarily  within  the  control  of 
the  states,  particularly  in  the  case  of  rail- 
roads. The  operation  of  a  purely  intrastate 
train  may  be  so  bound  up  with  the  opera- 
tion of  interstate  trains  or  instrumentalities 
of  interstate  commerce,  that  in  substance 
their  operation  is  one  and  the  same  thing, 
and  necessarily  the  subject  of  one  and  the 
same  source  of  regulation.  Of  such  a  char- 
acter are,  e.  g.  examination  of  eyesight  of 
employes,  character  of  switches,  of  rails,  of 
interlocking  devices,  all  of  which,  and  the 
like,  are  so  connected  with  the  operation 
of  the  railroad  as  an  entirety,  that  they  con- 
stitute but  a  single  subject  of  governmental 
regulation,  which,  as  it  cannot  go  to  both 
state  and  general  government,  goes,  of 
course,  when  it  acts,  to  the  latter;  Wabash 
R.  Co.  v.  U.  S.,  168  Fed.  1,  93  C.  C.  A.  393, 
where  the  Safety  Appliance  Act  of  March  2, 
1903,  is  held  constitutional  and  to  apply  to 
all  carriers  of  interstate  commerce,  whether 


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535 


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the  cars  and  trains  are  operated  between 
points  in  the  same  state,  are  empty,  or  the 
traffic  carried  is  wholly  intrastate.  The 
movement  of  a  car  on  a  private  switch  used 
for  transporting  cars  in  interstate  commerce 
is  within  the  operation  of  that  net;  Gray  v. 
R.  Co.,  1!>7  Fed.  874;  and  so  also  is  one  used 
between  points  in  the  same  state  by  a  car- 
rier engaged  in  interstate  commerce;  U.  S. 
v.  i;.v.  Co.,   1G4  Fed.  347. 

The  commercial  clause  includes  authority 
to  regulate  navigation  in  aid  of  commerce 
and  to  make  improvements  in  navigable 
waters,  such  as  building  a  lighthouse  in  the 
bed  of  a  stream  or  requiring  navigators  of 
a  stream  to  follow  a  prescribed  course,  or 
directing  the  water  of  a  navigable  stream 
from  one  channel  to  another;  South  Carolina 
v.  Georgia,  93  U.  S.  4,  23  L.  Ed.  7S2.  See 
also  U.  S.  v.  Duluth,  1  Dill.  4G9,  Fed.  Cas. 
No.  15,001. 

Congress  may  construct  or  authorize  the 
construction  of  railroads  across  the  stales 
and  territories;  California  v.  R.  Co.,  127  U. 
S.  1,  8  Sup.  Ct.  1073,  32  L.  Ed.  150;  and 
highways,  Including  canals,  and  outside  of 
state  lilies;  Wilson  v.  Shaw,  204  U.  S.  24,  27 
Sup.  Ct.  233,  51  L.  Ed.  351,  where  the  pow- 
er of  congress  to  construct  the  Panama  Ca- 
nal was  affirmed. 

The  powers  conferred  upon  congress  to 
regulate  commerce  among  the  several  states, 
are  not  confined  to  the  instrumentalities  of 
commerce  known  or  in  use  when  the  consti- 
tution was  adopted,  but  keep  pace  with  the 
progress  of  the  country,  and  adapt  them- 
selves to  new  developments  of  time  and  cir- 
cumstances. Accordingly,  the  power  of  regu- 
lation is  applied  to  much  subject-matter  un- 
known at  the  date  of  the  adoption  of  the 
constitution.  In  addition  to  those  things 
commonly  understood  to  be  included  in  the 
definitions  of  commerce,  supra,  it  has  been 
extended  to  sleeping  and  parlor  cars ;  Allen 
v.  Pullman  Co.,  191  U.  S.  171,  24  Sup.  Ct  39, 
4S  L.  Ed.  134;  refrigerator  cars;  Union  Re- 
frigerator Transit  Co.  v.  Lynch,  177  U.  S. 
L49,  20  Sup.  Ct.  631,  44  L.  Ed.  70S;  express 
companies;  Osborne  v.  Florida.  1G4  U.  S. 
650,  17  Sup.  Ct.  214,  41  L.  Ed.  5SG;  telegraph 
and  telephone;  Leloup  v.  Tort  of  Mobile, 
127  U.  S.  640,  8  Sup.  Ct.  13S3,  32  L.  Ed.  311; 
Western  Union  Telegraph  Co.  v.  .Missouri, 
190  U.  S.  412,  23  Sup.  Ct.  730,  47  L.  Ed. 
1116;  business  correspondence  schools;  In- 
ternational Text  Book  Co.  v.  Pigg.  217  U. 
S.  91,  30  Sup.  Ct.  481,  54  L.  Ed.  678,  24  L. 
R.  A.  (N.  s.1  493,  18  Ann.  Cas.  1103;  a  herd 
of  sheep  driven  from  one  state  across  an- 
other to  a  point  in  a  third  for  shipment; 
Keller  v.  Rhoads,  188  U.  S.  1,  23  Sup.  Ct. 
259,  47  L.  Ed.  '->~V\  natural  gas,  after  sever- 
ance from  the  ground;  Haskell  v.  Gas  Co., 
224  U.  S.  217,  32  Sup.  Ct.  442,  56  L.  Ed.  738; 
State  v.  Gas  &  Miuing  Co.,  120  Ind.  675, 
22  N.  E.  77S,  6  L.  R.  A.  579;  the  transmis- 
sion of  lottery  tickets  between  states ;   Lot- 


tery Case,  188  U.  S.  321,  23  Sup.  Ct  321,  47 
L.  Ed.  102.     As  to  goods,  intrastate  car 
in    transitu    to  another  interstate 

commerce;  The  Daniel  Ball,  K>  Wall.  (U.  S.) 
557,  19  L.  Ed.  WM;  the-  ultimate  destination 
prevails;   Houston   Direct    Nav.   Co.    v. 
Co.,  89  Tex.  1,  32  S.  W.  889,  30  L.  K.  A.  713, 
59   Am.    St.   Rep.   17;   if   the   shipment   par- 
tially intrastate  is   bnnn  fide  it  is  nut  inter- 
state,  but  otherwise  if  a  mere 
benefit   pro    tanto    by    reduced  state    c 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Texas.  204  U.  S. 
403,  '-'7  Sup.  ct.  ::t;o,  51  L.  Ed.  540. 

Interstate  commerce  by  sea  is  of  a  nation- 
al character  and  within  the  exclusive  ; 

agress;  Philadelphia  &  S.  Mail  8.  S. 
Co.  v.  Pennsylvania,  122  U.  S.  320.  7  Sup. 
Ct  1118,  30  L.  Ed.  1200;  and  so  is  trans- 
portation from  a  point  in  one  state  to  or 
through  another  or  other  states,  and  it  is 
commerce  among  the  states  even  as  to  the 
part  of  the  journey  within  the  state;  Wa- 
bash, St.  L.  &  P.  R.  Co.  v.  Illinois,  118  U.  S. 
557,  7  Sup.  Ct.  4,  30  L.  Ed.  211.  Where  the 
railroad  runs  for  a  few  miles  out  of  a  state 
and  back  the  carriage  is  interstate  com- 
merce; Banley  v.  Ry.  Co.,  187  U.  S.  617.  23 
Sup.  Ct.  214,  47  L.  Ed.  833;  so  of  a  \ 
between  two  ports  of  the  same  state  pass- 
ing more  than  a  marine  league  from  shore; 
Pacific  Coast  S.  S.  Co.  v.  R.  Com'rs,  18 
Fed.  10.  Prior  to  the  decision  of  the  Su- 
preme Court,  the  state  courts  were  divided; 
Sternberger  v.  R.  Co.,  29  S.  C.  510,  7  S.  K. 
S36,  2  L.  R.  A.  105,  agreeing  with  it,  and 
State  v.  Telegraph  Co.,  113  N.  C.  213, 
E.  3S9,  22  L.  R.  A.  570,  contra;  it  was.  bow- 
ever,  held  that  when  a  passenger  (whose 
ultimate  destination  is  to  a  place  in  another 
state)  purchases  a  ticket  to  a  point  within 
the  state  and  then  another  to  his  destina- 
tion, his  first  purchase  was  intrastate  com- 
merce to  which  state  rates  apply;  Kansas 
City  S.  R.  Co.  v.  Brooks,  S4  Ark.  233,  105  S. 
W.  93. 

A  grain  elevator  engaged  in  the  business 
of  storing  grain  in  the  course  of  Interstate 
transportation  is  not  engaged  in  interstate 
commerce;  W.  W.  Cargill  Co.  v.  Minnesota. 
ISO  U.  S.  452.  21  Sup.  Ct.  423,  4T>  I..  I'd.  619; 
People  v.  Miller,  S4  App.  Div.  171.  82  N.  Y. 
Sup]).  f>^2,  where  Budd  v.  New  York.  143 
C.  s.  517,  12  Sup.  Ct.  468,  36  I..  Ed.  247, 
and  Munn  v.  Illinois,  91  V.  S.  113,  -1  1-  Ed. 
77,  were  eited  with  the  comment  that  i'1 
oT  them  the  point  was  a  minor  one  and  did 
not  receive  full  consideration,  and  upon  that 
point  they  bad  been  much  criticized.  So  it 
was  held  that  coal  mined  in  one  slate  and 
sent  LntO  another  to  await  shipment  to  pur- 
Chasers  was  not  exempt  from  slate  taxa- 
tion as  subject-matter  of  Interstate  commerce; 
Lehigh  &  Wilkes  Iiarre  Coal  Co.  v.  Bo 
of  Junction,  75  N.  J.  L.  922,  OS  Atl.  806,  15 
L.  R,  A.  (N.  S.)  514, 

The   commodities    clause   of    the    Hepburn 
Act,  q.  v.,  is  a  regulation  of  commerce  with- 


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536 


COMMERCE 


in  the  power  of  congress  to  enact,  and  its 
power  to  regulate  interstate  commerce  does 
not  require  that  the  regulation  should  apply 
to  all  commodities  alike,  nor  does  an  excep- 
tion of  one  invalidate  it ;  U.  S.  v.  Delaware 
&  H.  Co.,  213  U.  S.  36G,  29  Sup.  Ct.  527,  53 
L.  Ed.  S36. 

The  Employers'  Liability  Act  of  June  11, 
1906,  providing  that  every  common  carrier 
jed  in  trade  and  commerce  in  the  Dis- 
trict of  Columbia  or  in  the  territories  or 
between  the  several  states  shall  be  liable 
for  the  death  or  injury  of  any  of  its  em- 
ployes which  may  result  from  the  negligence 
of  any  of  its  officers,  agents  or  employes  was 
held  to  be  a  regulation  of  intrastate  as  well 
as  of  interstate  commerce,  and  therefore 
one  beyond  the  power  of  congress  to  enact; 
Employers'  Liability  Cases,  207  U.  S.  463,  2S 
Sup.  Ct.  141,  52  L.  Ed.  297,  four  Justices 
dissenting.  As  to  the  case  of  the  Second 
Employers'  Liability  Act  of  1908,  see  supra. 
Transportation  in  and  out  of  the  state  is 
interstate  commerce.  A  railroad  entirely  in 
a  state,  but  a  connecting  link  of  interstate 
roads,  is  engaged  in  interstate  commerce: 
Houston  Direct  Nav.  Co.  v.  Ins.  Co.,  89  Tex. 
1,  32  S.  W.  8S9,  30  L.  R.  A.  713,  59  Am.  St. 
Rep.  17;  but  an  interstate  shipment  (in  this 
case,  of  car  load  lots)  on  reaching  the  point 
designated  in  the  original  contract  of  trans- 
portation ceases  to  be  an  interstate  shipment, 
and  its  further  transportation  to  another 
point  within  the  same  state,  on  the  order 
of  the  consignee,  is  controlled  by  the  law 
of  the  state  and  not  by  the  interstate  com- 
merce act;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Texas. 
204  U.  S.  403,  27  Sup.  Ct.  360,  51  L.  Ed.  540. 
Shipments  of  lumber  on  local  bills  of  lading 
from  one  point  in  a  state  to  another  point 
in  the  same  state  destined  from  the  begin- 
ning for  export,  are  foreign  and  not  intra- 
state commerce ;  De  Bary  &  Co.  v.  Louisiana, 

227  U.  S.  108,  33  Sup.  Ct.  239,  57  L.  Ed.  ; 

following  Southern  Pac.  Terminal  Co.  v. 
Commerce  Commission,  219  U.  S.  498.  31 
Sup.  Ct.  279,  55  L.  Ed.  310;  Railroad  Com- 
mission of  Ohio  v.  R.  Co.,  225  U.  S.  101,  32 
Sup.  Ct.  653,  56  L.  Ed.  1004;  distinguishing 
Gulf,  C.  &  S.  F.  R.  Co.  v.  Texas,  204  U.  S. 
403,  27  Sup.  Ct.  360,  51  L.  Ed.  540. 

When  the  Power  of  Congress  is  Exclusive. 
The  power  of  congress  over  interstate  com- 
merce "is  necessarily  exclusive  whenever 
the  subject-matter  is  national  in  its  charac- 
ter and  properly  admits  of  only  one  uniform 
system,"  and  in  such  cases  non-action  by 
congress  is  equivalent  to  a  declaration  that 
it  shall  be  free  and  untrammelled;  Phila- 
delphia &  S.  Mail  S.  S.  Co.  v.  Pennsylvania, 
122  U.  S.  326,  336,  7  Sup.  Ct.  1118,  30  L. 
Ed.  1200;  Welton  v.  Missouri,  91  U.  S.  275, 
23  L.  Ed.  347;  Robbins  v.  Taxing  Dist,  120 
U.  S.  4S9,  498,  7  Sup.  Ct.  592,  30  L.  Ed.  694 ; 
where  it  was  said  that  if  selling  goods  by 
sample  needs  regulation,  it  must  obviously 
be  based  on  a  uniform  system  applicable  to 


the  whole  country,  and  congress  alone  can 
do  it;  Brown  v.  Houston,  114  U.  S.  622,  5 
Sup.  Ct  1091,  29  L.  Ed.  257;  Bowman  v.  R, 
Co.,  125  U.  S.  465,  8  Sup.  Ct.  6S9,  1062,  31 
L.  Ed.  700;  Crandall  v.  Nevada,  6  Wall.  (U. 
S.)  35,  18  L.  Ed.  745,  where  it  was  held  that 
the  states  have  no  right  to  tax  interstate 
commerce  although  they  may  tax  the  in- 
struments of  such  commerce  in  like  manner 
as  other  property  of  the  same  description. 
Such  a  regulation,  national  in  its  nature, 
is  the  requirement  of  a  bond  of  indemnity 
from  passengers  arriving  from  foreign  ports ; 
Henderson  v.  New  York,  92  U.  S.  259,  23  L. 
Ed.  543 ;  or  the  payment  of  a  tax  on  each 
such  passenger;  Smith  v.  Turner,  7  How. 
(U.  S.)  283,  12  L.  Ed.  702  (but  the  require- 
ment of  a  list  of  passengers,  with  ages,  oc- 
cupations, etc.,  is  a  police  regulation  within 
the  power  of  the  state;  New  York  v.  Miln,  11 
Pet.  [U.  S.]  103,  9  L.  Ed.  648);  so  also  the 
transportation  of  persons  or  merchandise 
"is  in  its  nature  national,  admitting  of  but 
one  regulating  power";  Leisy  v.  Hardin,  135 
U.  S.  100,  10  Sup.  Ct.  681,  34  L.  Ed.  128; 
Bowman  v.  R.  Co.,  125  U.  S.  465,  8  Sup.  Ct. 
6S9,  1062,  31  L.  Ed.  700;  Sloman  v.  Moeba 
Co.,  139  Mich.  334,  102  N.  W.  854;  Richter 
v.  Poppenhausen,  42  N.  Y.  374;  Greek- Ameri- 
can Sponge  Co.  v.  Drug  Co.,  124  Wis.  469, 
102  N.  W.  888,  109  Am.  St.  Rep.  961;  though 
the  delivery  is  made  by  an  agent,  residing 
in  the  state,  of  the  non-resident  seller;  Keh- 
rer  v.  Stewart,  197  U.  S.  60,  25  Sup.  Ct.  403, 
49  L.  Ed.  663;  whether  the  sale  is  made  di- 
rectly to  the  customer  or  to  a  retailer;  id.; 
imported  goods  in  unbroken  original  pack- 
ages are  not  subject  to  state  taxation;  In  re 
Doane,  197  111.  376,  64  N.  E.  377;  State  v. 
Board  of  Assessors,  46  La.  Ann.  145,  15 
South.  10,  49  Am.  St.  Rep.  318;  but  mer- 
chandise consigned  by  non-resident  sellers  to 
and  stored  by  a  warehouseman,  awaiting 
future  sale  and  delivery,  is  not  protected 
from  local  assessment  as  interstate  com- 
merce; Merchants'  Transfer  Co.  v.  Board  of 
Review,  128  la.  732,  105  N.  W.  211,  2  L.  R. 
A.  (N.  S.)  662,  5  Ann.  Cas.  1016. 

As  to  matters  under  the  exclusive  power  of 
congress,  national  in  their  character  and  re- 
quiring general  and  not  local  rules  of  regu- 
lation, the  fact  that  congress  has  not  legis- 
lated does  not  make  it  lawful  for  the  states 
to  do  so.  Such  inaction  shows  only  that 
no  restrictions  are  to  be  put  upon  commerce 
in  that  direction.  The  right  to  legislate  is 
exclusively  vested  in  congress;  and  when 
congress  legislates  on  a  subject  within  its  ex- 
clusive power  a  state  loses  control  of  any 
right  it  may  have  had  to  apply  the  police 
power  to  it,  even  though  the  federal  act  is 
not  to  take  effect  until  a  future  period; 
Northern  Pac.  Ry.  Co.  v.  Washington,  222 
U.  S.  370,  32  Sup.  Ct.  160,  56  L.  Ed.  237. 

The  course  of  decisions,  mainly  in 'the 
United  States  Supreme  Court,  covers  a  great 
variety    of   subjects    with   which    the   state 


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537 


:i:rce 


legislatures  have  attempted  to  deal  In  the 
enactment  of  statutes  which  have  been  held 
unconstitutional  because  they  interfered  with 
the  exclusive  power  of  congress  conferred 
by  the  commerce  clause  of  the  constitution. 
Among  the  statutes  which  have  thus  fallen 
umkr  the  bau  of  the  final  authority  on 
the  subject  is  one  Imposing  a  burdensome 
condition  upon  a  shipmaster  as  a  prerequis- 
ite for  landing  his  passengers,  with  the  al- 
ternative of  the  payment  of  a  small  sum 
for  each  of  them;  Henderson  v.  New  York, 
92  U.  S.  259,  23  L.  Bd.  543;  one  regulat- 
ing the  arrival  of  passengers  from  a  for- 
eign port  and  authorizing  an  executive  of- 
ficer to  include  passengers  of  certain  class- 
es at  his  discretion;  Chy  Lung  v.  Freeman, 
92  r.  s.  275,  23  L.  Ed.  550;  which  the  court 
considered  as  having  been  enacted  mainly 
to  exclude  Chinese  Immigration,  and  to  go 
far  beyond  tbe  legitimate  state  action  • 
eluding  pauper  or  convict  immigrants.  See 
also  In  re  Ah  Fong,  3  Sawy.  144,  Fed.  ('as. 
No.  102.  But  a  statute  is  not  invalid  where 
the  detention  is  for  the  purpose  of  disin- 
fection by  the  order  of  a  state  board  of 
health;  Brown  v.  Maryland,  12  Wheat.  (U. 
S.)  410. -6  L.  Ed.  67S;  .Minneapolis,  St.  P.  & 
S.  S.  M.  R.  Co.  v.  Mllner,  57  Fed.  276.  So 
statutes  are  unconstitutional  which  require 
the  payment  of  a  license  tax  by  commercial 
travellers  selling  goods  manufactured  in  oth- 
er states,  but  not  by  those  selling  goods 
manufactured  in  the  state  itself;  Brenuan 
v.  Titusville,  153  U.  S.  2S9,  14  Sup.  Ct.  820, 
38  L.  Ed.  710;  Webber  v.  Virginia,  103  U. 
S.  344,  26  L.  Ed.  565;  Welton  v.  Missouri,  01 
U.  S.  275,  23  L.  Ed.  347;  Asher  v.  Texas,  128 
U.  S.  120,  9  Sup.  Ct.  1,  32  L.  Ed.  36S;  Robbins 
v.  Taxing  Dist,  120  U.  S.  480,  7  Sup.  Ct. 
592,  30  L.  Ed.  094;  McCall  v.  California,  136 
U.  S.  104,  10  Sup.  Ct.  8S1,  34  L.  Ed.  391 ;  Mc- 
Clellan  v.  Pettigrew,  44  La.  Ann.  356,  10 
South.  853;  Overton  v.  City  of  Vlcksburg,  70 
Miss.  558,  13  South.  226;  Hurford  v.  State, 
91  Tenn.  660,  20  S.  W.  201  (but  not  when 
the  same  tax  is  levied  upon  peddlers  selling 
goods  made  In  or  out  of  the  state;  Howe 
Mach.  Co.  v.  Gage,  100  U.  S.  676,  25  L.  Ed. 
754;  or  which  were  part  of  the  mass  of 
property  in  the  state;  Emcrt  v.  Missouri,  156 
U.  S.  296,  15  Sup.  Ct  367,  39  L.  Bd.  430;  and 
see  Tiernan  v.  Rinker,  102  U.  S.  123,  26  I,. 
Ed.  103);  so  of  an  act  requiring  importers 
of  foreign  goods  to  take  out  a  license  in  the 
exercise  of  a  power  of  taxation:  Brown  v. 
Maryland,  12  Wheat.  (U.  S.)  410,  6  L.  Ed. 
67S;  and  a  state  law  which  requires  a  party 
to  lake  out  a  license  for  carrying  on  Inter- 
state commerce;  Crutcher  v.  Kentucky,  111 
U.  S.  47,  11  Sup.  Ct.  851,  35  L.  Ed.  649;  a 
city  ordinance  laying  wharf  fees  upon  ves- 
sels laden  with  products  of  other  states. 
which  are  not  exacted  from  vessels  laden 
with  products  of  the  home  state;  Guy  v. 
Baltimore,  100  U.  S.  434,  25  L.  Ed.  743;  a 
state  tonnage  tax  on  foreign  vessels;  Cannon 


v.  New  Orleans,  20  Wall.  (U.  S.)  577,  --   L. 
Ed.  417;  levied  to  defray  quarantine  ex] 
es;   Peete   v.    Morgan,  10   Wall.    (1 
22  L.  Ed.  201;  otherwise  of  a   tax  for  city 
purposes  levied  upon  a   vessel  owned  by  a 

"t    of    the   city    whi<h    is    not 
for  the  privilege  of  trading;   •  ,  p,  & 

C.  Transp.  Co.  v.  Wheeling,  99  U.  s. 
Ed.  412;  The  North  Cape,  6   B 
Cas.   No.   10,316;  granting  a  telegraph 
pany  exclusive   right   to   maintain    telegraph 
lines  in  such  state  as  contrary  to  tbe  . 
July  21,    1866,   which  practically  forbids  the 
state  to  exclude  from  its  borders  a  telegraph 
company   building  its  lines  in  pursuance  of 
this  act  of  congress;  Pensacola  Te 
v.  Telegraph  Co.,  06  U.   S.  1,  24   L.   Ed 
an     attempt     to     regulate     ti  'U     of 

telegraphic  messages  into  other  states  and 
their  delivery;  Western  Union  Telegraph 
Co.  v.  rendleton,  122  Q.  S.  347,  7  Sup.  Ct. 
L126,  30  L.  Ed.  1187;  as  telegraphic  com- 
munications carried  on  between  different 
states  are  interstate  commerce;  Leloup  v. 
Port  of   Mobile,   127   U.    S.   610,    8   Sup.   Ct. 

32  I*  Ed.  311;  a  statute  providing  for 
inspection  of  sea-going  vessels  arriving  at  a 
port  and  of  damaged  goods  found  thereon  by 
a  state  oflicer,  with  a  view  to  furnishing  of- 
i>ial    evidence    to    the    parties    limned 
concerned,  and  when  goods  are  damaged  to 
provide  for  their  sale ;   Foster  v.  Master  & 
Wardens  of  New   Orleans,  04   U.   S.   246,   21 
L.   Ed.  122;  and  one  prohibiting  the  driving 
of  cattle  from  another  state  into  the  state 
during  certain   months;    Hannibal   &    St    I 
R.  Cu.  v.  Husen,  95  D.  S.  465,  -i   I 
one  regulating  the  rates  on  interstate  traf- 
fic; Wabash,  St.  L.  &  P.  Ry.  Co.  v.   Illinois, 
118  U.  S.  557,  7  Sup.  Ct  4,  30  L.  Ed.  244. 

A  state  law,  requiring  the  master  of 
vessel  in  the  foreign  trade  to  pay  a  certain 
sum  to  a  state  ofiicer  for  every  passenger 
brought  from  a  foreign  country  into  the 
state,  is  void;  Smith  v.  Turner,  7  How.  (D. 
S.)  2S3,  12  L.  Ed.  702.  No  state  can  grant 
an  exclusive  monopoly  for  the  navigation  of 
any  portion  of  the  waters  within  its  limits 
upon  which  commerce  is  carried  on  under 
coasting  licenses  granted  nnder  the  author- 
ity of  congress:  Gibbons  v.  Ogden,  0  Wheat. 
(U.  S.)  1.  6  L.  Bd.  23;  the  rights  here  in  con- 
troversy were  tbe  exclusive  right  to  navigate 
the  Hudson  river  with  stea; 
also,  on  this  point,  Ciltnan  v.  Philadelphia, 
3  Wall.  (U.  s.i  713,  18  L.  Ed.  96;  The 
lei  Ball,  10  Wall.  (i\  lit  L.  Bd 

Craig  v.  Kline,  65  Pa.  399,  3  Am.  Rep 
But  a  state  law  granting  to  an  Individual 
an  exclusive  right  to  navigate  the  upper 
waters  of  a  stream  which  is  wholly  within 
the  limits  of  a  state,  separated  from  tide 
waters  by  falls  impassable  for  purposes  of 
navigation,  and  not  forming  a  part  of  a 
continuous  track  of  navigation  between  two 
or  more  states,  or  with  a  foreign  country, 
is  not  invalid  ;  Veazie  v.  Moor,  14  How.  (D.  S.) 


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538 


COMMERCE 


568,  14  L.  Ed.  545;  and  see  McReynolds  v. 
Smallhouse,  8  Bush  (Ky.)  447.  A  statute  for- 
bidding common  carriers  to  bring  intoxicat- 
ing liquors  into  tbe  state  without  being  fur- 
nished with  a  certificate  that  the  consignee 
was  authorized  to  sell  intoxicating  liquors  in 
the  county  is  invalid ;  Bowman  v.  Ry.  Co., 
125  U.  S.  465,  8  Sup.  Ct.  689,  1062,  31  L. 
Ed.  700.  And  so  is  an  act  taxing  a  corpo- 
ration of  another  state,  owning  a  railroad 
which  is  a  link  in  an  interstate  line,  for  the 
privilege  of  keeping  an  office  in  the  state; 
Norfolk  &  W.  R.  Co.  v.  Com.,  136  U.  S.  114, 

10  Sup.  Ct.  958,  34  L.  Ed.  394.  And  a  tax 
on  persons  and  property  received  and  land- 
ed within  one  state  after  being  transported 
from  another  was  held  a  tax  upon  interstate 
commerce  and  a  regulation  thereof  upon  a 
matter  which  is  within  the  exclusive  power 
of  congress;  Gloucester  Ferry  Co.  v.  Penn- 
sylvania, 114  U.  S.  196,  5  Sup.  Ct.  826,  29 
L.  Ed.  158. 

When  the  State  Power  is  Exclusive.  The 
states  may  authorize  the  construction  of 
highways,  turnpikes,  railways  and  canals 
between  points  in  the  same  states  and  regu- 
late the  tolls  thereof;  Baltimore  &  O.  R. 
Co.  v.  Maryland,  21  Wall.  (U.  S.)  456,  22  L. 
Ed.  678;  the  building  of  bridges  over  non- 
navigable  streams  and  regulate  the  naviga- 
tion of  the  strictly  internal  waters  of  the 
state,  such  as  do  not  by  themselves,  or  by 
connection  with  other  waters,  form  a  con- 
tinuous highway  over  which  commerce  is  or 
may  be  carried  on  with  other  states  or  for- 
eign countries ;  Veazie  v.  Moor,  11  How. 
(U.    S.)    56S,    14   L.    Ed.   545;   The    Montello, 

11  Wall.  (U.  S.)  411,  20  L.  Ed.  191;  id.,  20 
Wall.  (U.  S.)  430,  22  L.  Ed.  391;  and  this 
rule  obtains  even  if  goods  or  passengers,  over 
such  highways  between  points  in  the  same 
state,  may  have  an  ultimate  destination  in 
other  states,  and,  to  a  slight  extent  the  state 
regulations  may  be  said  to  interfere  with 
interstate  commerce;  Wabash,  St.  L.  &  P. 
Ry.  Co.  v.  Illinois,  118  U.  S.  557,  7  Sup.  Ct. 
4,  30  L.  Ed.  244 ;  the  states  may  also  exact  a 
bonus  or  even  a  portion  of  the  earnings  of 
such  corporation  as  a  condition  to  the  grant 
of  its  charter;  Society  for  Savings  v.  Coite, 
6  Wall.  (U.  S.)  594,  18  L.  Ed.  S97;  Provi- 
dent Inst,  for  Savings  v.  Massachusetts,  6 
Wall.  (U.  S.)  611,  18  L.  Ed.  907;  Hamilton 
Mfg.  Co.  v.  Massachusetts,  6  Wall.  (U.  S.) 
632,  18  L.  Ed.  904;  Baltimore  &  O.  R.  Co. 
v.  Maryland,  21  Wall.  (U.  S.)  456,  22  L.  Ed. 
678;  Ashley  v.  Ryan,  153  U.  S.  436,  14  Sup. 
Ct.  865,  3S  L.  Ed.  773.  The  power  to  enact 
police  regulations  relating  exclusively  to  in- 
trastate trade  cannot  be  interfered  with  by 
congress;  U.  S.  v.  De  Witt,  9  Wall.  (U.  S.) 
41,  19  L.  Ed.  593;  Patterson  v.  Kentucky,  97 
U.  S:  501,  24  L.  Ed.  1115;  State  v.  R.  Co.,  152 
Wis.  341,  140  N.  W.  70;  U.  S.  v.  Vassar,  5 
Wall.  (U.  S.)  462,  470,  471,  18  L.  Ed.  497. 
The  remarks  of  Chase,  C.  J.,  in  this  case 
contain  the  substance  of  the  whole  doctrine: 


"Over  this  (the  internal)  commerce  and  trade,* 
congress  has  no  power  of  regulation  or  any 
direct  control.  This  power  belongs  exclusive- 
ly to  the  states.  No  interference  by  congress 
with  the  business  of  citizens  transacted  with- 
in a  state  is  warranted  by  the  constitution, 
except  such  as  is  strictly  incidental  to  the 
exercise  of  powers  clearly  granted  to  the  leg- 
islature. The  power  to  authorize  a  business 
within  a  state  is  plainly  repugnant  to  the 
exclusive  power  of  the  state  over  the  same 
subject". 

Regulation  of  intrastate  commerce  belongs 
to  the  state  subject  to  the  condition  that 
prescribed  rates  must  not  be  so  unreason- 
ably low  as  to  deprive  the  carrier  of  his 
property  without  due  process  of  law;  Smyth 
v.  Ames,  169  U.  S.  466,  526,  18  Sup.  Ct.  418, 
42  L.  Ed.  819.     See  Rates. 

It  was  at  one  time  thought  that  the  ad- 
miralty jurisdiction  of  the  United  States 
did  not  extend  to  contracts  of  affreightment 
between  ports  of  the  United  States,  though 
the  voyage  were  performed  upon  navigable 
waters  of  the  United  States;  Allen  v.  New- 
berry, 21  How.  (U.  S.)  244,  16  L.  Ed.  110. 
But  later  adjudications  have  ignored  this 
distinction  as  applied  to  those  waters;  The 
Belfast,  7  Wall.  (U.  S.)  624,  641,  19  L.  Ed. 
266;  The  Lotta wanna,  21  Wall.  (U.  S.)  558, 
587,  22  L.  Ed.  654;  Lord  v.  Steamship  Co., 
102  U.  S.  541,  26  L.  Ed.  224. 

Under  this  power  the  states  may  also  pre- 
scribe the  form  of  all  commercial  contracts, 
as  well  as  the  terms  and  conditions  upon 
which  the  internal  trade  of  the  state  may  be 
carried  on ;  United  States  v.  Steffens,  100  U. 
S.  82,  25  L.  Ed.  550. 

State  statutes  affecting  interstate  com- 
merce have  been  sustained  as  follows :  One 
directed  against  color  blindness;  Nashville, 
C.  &  St.  L.  R.  v.  Alabama,  128  U.  S.  96,  9 
Sup.  Ct.  28,  32  L.  Ed.  352;  requiring  inter- 
state locomotive  engineers  to  obtain  a  li- 
cense after  a  qualifying  examination,  and 
imposing  a  penalty  for  operating  without 
such  license ;  Smith  v.  Alabama,  124  U.  S. 
465,  8  Sup.  Ct.  564,  31  L.  Ed.  508;  forbidding 
a  contract  limiting  liability  for  injury ;  Chi- 
cago, M.  &  St.  P.  Ry.  Co.  v.  Solan,  169  U.  S. 
133,  18  Sup.  Ct.  289,  42  L.  Ed.  6S8;  Peirce 
v.  Van  Dusen,  78  Fed.  693,  24  C.  C.  A.  280, 
69  L.  R.  A.  705;  Pennsylvania  R.  Co.  v. 
Hughes,  191  U.  S.  477,  24  Sup.  Ct.  132,  48 
L.  Ed.  268;  requiring  telegraph  companies 
to  receive  dispatches  and  to  transmit  and 
deliver  them  with  due  diligence,  as  applied 
to  messages  from  outside  the  state;  West- 
ern Union  Telegraph  Co.  v.  James,  162  U. 
S.  650,  16  Sup.  Ct.  934,  40  L.  Ed.  1105;  for- 
bidding the  running  of  freight  trains  on 
Sunday;  Hennington  v.  Georgia,  163  U.  S. 
299,  16  Sup.  Ct.  1086,  41  L.  Ed.  166;  requir- 
ing railroad  companies  to  fix  their  rates 
annually  for  the  transportation  of  passen- 
gers and  freight  and  to  post  a  printed  copy 
of  such  rates  at  all  their  stations;  Chicago 


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;-,:;:■ 


COMMERCE 


&  N.  W.  Ry.  Co.  v.  Fuller,  17  Wall.  (U.  S.) 
560,  21  L.  Ed.  710;  forbidding  the  consolida- 
tion of  parallel  or  competing  lines  of  rail- 
ways; Louisville  &  N.  R.  Co.  v.  Kentucky, 
161  U.  S.  677,  16  Sup.  Ct.  714,  40  L.  Ed.  849; 
regulating  the  beating  of  | 
and  directing  guards  and  guard  posts  to  be 
placed  on  railroad  bridges  and  trestles  and 
the  approaches  thereto;  New  York,  N.  EL  & 
II.  R.  Co.  v.  New  York,  165  U.  S.  628,  17 
Sup.  Ct.  418,  41  L.  Ed.  853;  requiring  track 
connections  and  facilities  for  the  Interchange 
of  cars  and  traffic  at  railroad  Intersections; 
Wisconsin,  M.  &  P.  R.  Co.  v.  Jacobson,  17!) 
U.  S.  287,  21  Sup.  Ct.  115,  45  L.  Ed.  194. 
A  statute  regulating  receipts  for  deposits 
of  money  is  not  a  burden  on,  or  regula- 
tion of,  interstate  commerce,  simply  because 
such  receipts  are  likely  to  be  transmitted  to 
other  states  or  foreign  countries:  Ed 
O'Malley,  219  D.  S.  128,  31  Sup.  Ct  190,  ^ 
L.  Ed.  128.  The  Arkansas  "Full  Crew"  act 
is  not  unconstitutional  under  the  commerce 
clause,  congress  not  having  acted  in  regard 
thereto;  Chicago,  R.  I.  &  P.  R.  Co.  v.  Ar- 
kansas, 219  U.  S.  453,  31  Sup.  Ct  275,  55  L. 
Ed.   290. 

The  line  of  distinction  between  an  inter- 
ference with  commerce  and  a  mere  police 
regulation  is  sometimes  exceedingly  dim  and 
shadowy.  1'ndoubtedly,  congress  may  go  be- 
yond the  general  regulations  of  commerce 
which  comprise  its  exclusive  jurisdiction  and 
descend  to  minute  directions  which  will  ex- 
clude the  exercise  of  stole  power  as  to  mat- 
ters covered  by  them.  It  may  establish  po- 
lice regulations,  as  well  as  the  states,  as  to 
matters  of  which  it  is  given  control  by  the 
constitution,  but  generally  the  police  power 
being  better  exercised  by  the  local  authori- 
ties, and  the  power  to  arrest  collision  resid- 
ing in  the  national  courts,  the  regulations  of 
congress  seldom  exclude  the  establishment  of 
others  by  the  state  covering  many  particu- 
lars; Cooley,  ('oust.  Lira.  731.  See  Rohbins 
v.  Taxing  Dist,  120  U.  S.  489,  7  Sup.  Ct  592, 

30  L.  Ed.  694;  Philadelphia  &  S.  Mail  S.  S. 
Co.  v.  Pennsylvania.  122  U.  S.  326,  7  Sup. 
Ct  1118,  30  L.  Ed.  1200. 

It  was  said  by  Strong,  J.,  in  Hannibal  & 
St  J.  R.  Co.  v.  Husen,  95  U.  S.  461,  473,  21 
L.  Ed.  527,  that  "the  police  power  of  a  state 
cannot  obstruct  foreign  commerce  or  Inter- 
state commerce  beyond  the  necessity  for  its 
exercise ;  and,  under  color  of  it,  objects  not 
within  its  scope  cannot  be  secured  at  the  ex- 
pense of  the  protection  afforded  by  the  fed- 
eral constitution,  it  is  the  duty  of  the  courts 
to  guard  vigilantly  against  any  needless  in- 
trusion.'' This  language  was  quoted  with  ap- 
proval by  Matthews.  J.,  in  Bowman  v.  R. 
Co.,  125  U.   S.  465,  492,  8  Sup.  Ct.  689,  1062, 

31  L.  Ed.  700. 

The  doing  of  interstate  business  by  one  en- 
gaged also  in  local  commerce  is  not  a  bar  to 
state    regulation    or    taxation ;     Osborne    v. 


State,  33  Fla.  162,  14  South.  58S,  25  L.  R.  A. 
120,  39  Am.   St.  Rep 

The  commerce  clause  is  not  violated  by  a 
state    statute    prohibiting    the    manufacture 
and  sale  of  adulterated  good- 
Lurman,  192  U.  S.  189,  _(  B 
Ed.  401;    nor  by  a  state  tax  on  ca 
New  York  v.   Knight,   192  0.   B.  21,  24  Sup. 
Ct  L'Oi',  48  L.  Ed.  325;    nor  by  a  I 

at  managers  of  meat  packing  hi 
construed  by  the  highest  state  court  to  apply 
only  to  selling  to  local  customers  from 
of  original  packages  not  as  a  mere  incident 
of  interstate  commerce;  Kehrer  v.  Stewart, 
197  U.  s.  (;o.  IT,  Sup.  Ct.  403,  49  L,  Ed.  •  ;»;::: 
nor  a  tax  on  foreign  corporations  i 
carrying  i  assengers  or  merchandise  upon 
their  gross  receipts  outside  of  the 
State  Tax  on  Railway  Cross  Receipts,  15 
Wall.  (U.  S.)  284,  21  L.  Ed.  164;  Indiana  v. 
Exp.  Co.,  7  Biss.  227,  Fed.  Caa  No.  7,021 ;  nor 
by  a  shipment  of  buggies  (by  a  foreign  man- 
ufacturer) either  complete  or  in  i 
parts  put  together  and  peddled  about  the 
state  by  an  agent  who  was  held  liable  to  an 
occupation  tax;  Saulsbury  v.  State.  43  Tex. 
Cr.  R.  90,  63  S.  W.  56S,  96  Am.  St.  Rep.  837. 
A  state  may,  in  the  absence  of  federal  legis- 
lation on  the  subject,  reasonably  regulate  the 
hours  of  labor  of  employes  on  interstate  rail- 
roads; state  v.  R.  Co..  .".<;  M  at  582,  '.)::  Pac 
945,  15  P.  R.  A.  (N.  S.i  134,  13  Aim.  Cas.  114. 
It  may  adopt  regulations  to  prevent  the 
spread  of  diseases  among  plants;  Ex  parte 
Ilawley,  22  S.  I).  23,  115  N.  W.  93.  15  L.  R. 
A.  (X.  S.i  138. 

The  constitutional  provision  does-not  apply 
to  regulations  as  to  life-i  .  toiler  in- 

spections, etc.,  on  steamboats  which  confine 
their  business  to  ports  wholly  within  a  state  ; 
The  Thomas  Swan,  6  Ben.  42,  Fed.  ('as.  No. 
13,931 ;  nor  to  any  commerce  entirely  within 
a  state;  The  Daniel  Pall  v.  P.  S.,  10  Wall. 
(U.  S.)  557,  19  L.  Ed.  999;  Lehigh  Yal.  R. 
Co.  v.  Pennsylvania.  1;:.  I'.  S.  192,  12  Sup. 
Ct.  S06.  36  P.  Ed.  672;  Louisville,  N.  O.  ,v  T. 
R.  Co.  v.  Mississippi,  133  1'.  S.  587,  10 
Ct.  34S,  .".:;  I..  Ed.  7S4  ;  nor  to  a  condition  in 
a  railroad  charter  granted  by  a  state  that 
the  company  shall  pay  a  part  of  its  earnings 
to  the  state,  from  time  to  time,  as  a  bonus; 
Baltimore  &  O.  R.  Co.  v.  Maryland.  ^1  Wall. 
(U.  S.)  456,  22  L.  Ed.  678;  nor  to  a  state  law 
prescribing  regulations  for  warehouses,  car- 
rying on  business  within  the  state  exclusive- 
ly, notwithstanding  they  are  used  as  instru- 
ments of  interstate  traffic;  Miimi  v.  li 
94  V.  S.  113,  lil  I>.  Ed.  77;  nor  to  a  law  of 
Virginia  by  which  only  such  persons  as  are 
not  citizens  of  that  state  are  prohibited  from 
planting  oysters  in  a  soil  covered  by  her  tide- 
waters. Subject  to  the  paramount  right  of 
navigation,  each  state  owns  the  beds  of  all 
tide-waters  within  its  jurisdiction,  and  may 
appropriate  them  to  be  used  by  its  own  citi- 
MeC ready  v.  Virginia,  94  U.  S.  391,  24 


COMMERCE 


54U 


COMMERCE 


L.  Ed.  248.  It  does  not  forbid  a  state  from 
enacting,  as  a  police  regulation,  a  law  pro- 
hibiting the  manufacture  and  sale  of  intoxi- 
cating liquors ;  Boston  Beer  Co.  v.  Massachu- 
setts, 97  U.  S.  25,  24  L.  Ed.  989 ;  nor  the  sale 
of  oleomargarine  brought  from  another  state ; 
Com.  v.  Paul,  148  Pa.  559,  24  Atl.  7S;  Com. 
v.  Schollenberger,  156  Pa.  201,  27  Atl.  30,  22 
L.  R.  A.  155,  36  Am.  St.  Rep.  32;  Com.  v. 
Huntley,  156  Mass.  236,  30  N.  E.  1127,  15  L. 
R.  A.  839 ;  though  in  original  packages ;  In 
re  Scheitlin,  99  Fed.  272 ;  or  imposing  a  li- 
cense tax  upon  travelling  salesmen  selling 
liquor  in  quantities  of  less  than  five  gallons, 
the  statute  having  been  held  by  the  highest 
court  of  the  state  to  be  a  police  regulation 
and  not  a  taxing  act ;  Delamater  v.  South 
Dakota,  205  U.  S.  93,  27  Sup.  Ct.  447,  51  L. 
Ed.  724  (where  it  was  said  that  such  an  act 
is  withiD  the  purview  of,  and  not  in  conflict 
with,  the  Wilson  Act) ;  or  a  state  act  pre- 
scribing maximum  rates  of  transportation 
within  the  state;  Chicago,  B.  &  Q.  R.  Co.  v. 
Iowa,  94  XL  S.  155,  24  L.  Ed.  94;  and  see 
Peik  v.  Chicago  &  N.  W.  R.  Co.,  94  U.  S.  164, 
24  L.  Ed.  97 ;  Cooley,  Const.  L.  75.  Nor  is  a 
city  ordinance,  exacting  a  license  fee,  for  the 
maintenance  of  its  office  in  the  city,  from  an 
express  company  doing  business  beyond  the 
limits  of  a  state,  invalid ;  Osborne  v.  Mobile, 
16  Wall.  (U.  S.)  479,  21  L.  Ed.  470;  nor  a 
tax  on  telegraph  poles  erected  within  a  city; 
St.  Louis  v.  Telegraph  Co.,  148  U.  S.  92,  13 
Sup.  Ct.  485,  37  L.  Ed.  3S0 ;  Philadelphia  v. 
Cable  Co.,  67  Hun  21,  21  N.  Y.  Supp.  556; 
nor  a  statute  requiring  locomotive  engineers 
to  be  licensed  after  examination,  it  being  a 
valid  exercise  of  the  police  power;  Smith  v. 
Alabama,  124  U.  S.  465,  8  Sup.  Ct.  564,  31 
L.  Ed.  508 ;  see  Nashville,  C.  &  St  L.  R.  Co. 
v.  Alabama,  128  U.  S.  96,  9  Sup.  Ct.  28,  32 
L.  Ed.  352;  nor  one  forbidding  dealing  in  fu- 
tures on  margins ;  State  v.  Beatty  (Miss.)  60 
South.  1016 ;  nor  prohibiting  shipment  or 
sale  of  unripe  fruits ;  Sligh  v.  Kirkwood 
(Fla.)  61  South.  185;  nor  prescribing  the  ef- 
fect of  domestic  indorsements  on  foreign 
bills  of  lading;  Roland  M.  Baker  Co.  v. 
Brown,  214  Mass.  196,  100  N.  E.  1025. 

A  city  ordinance  providing  that  only  rock 
dressed  within  the  state  should  be  used  in 
any  city  public  works  was  held  valid;  Allen 
v.  Labsap,  188  Mo.  692,  87  S.  W.  926,  3  Ann. 
Cas.  306,  considered  as  sound  in  19  Harv.  L. 
Rev.  70;  and  criticized  in  61  Cent.  L.  J.  65. 
Railroad  cars  engaged  in  interstate  com- 
merce may  be  attached  under  an  execution 
issued  out  of  a  state  court ;  Davis  v.  Ry.  Co., 
217  U.  S.  157,  30  Sup.  Ct.  463,  54  L.  Ed.  708, 
27  L.  R.  A.  (N.  S.)  823,  18  Ann.  Cas.  907.  In 
Stone  v.  Trust  Co.,  116  U.  S.  307,  6  Sup.  Ct. 
334,  3SS,  1191,  29  L.  Ed.  636,  it  was  held  that 
the  right  of  the  state  to  limit  charges  of  a 
railroad  company  could  not  be  granted  away 
by  giving  to  the  company  the  right  from  time 
to  time  to  fix  and  regulate  their  charges,  and 


that  a  state  was  not  foreclosed  of  its  right  to 
act  upon  the  reasonableness  of  the  charges 
and  to  regulate  them  for  business  within  the 
state.  A  state  statute  requiring  a  carrier  to 
settle  within  a  specified  time  claims  for  loss 
or  damages  is  not,  in  the  absence  of  legisla- 
tion by  congress,  an  unwarrantable  interfer- 
ence with  interstate  commerce,  and  is  consti- 
tutional ;  Atlantic  Coast  Line  R.  Co.  v.  Ma- 
zursky,  216  U.  S.  122,  30  Sup.  Ct.  378,  54  L. 
Ed.  411.  See  Morris  v.  Express  Co.,  146  N. 
C.  167,  59  S.  E.  667,  15  L.  R.  A.  (N.  S.)  983. 
And  so  is  one  providing  that  a  railroad  is  lia- 
ble for  damages  from  fire ;  McCandless  v.  R, 
Co.,  38  S.  C.  103,  16  S.  E.  429,  18  L.  R.  A. 
440.  See  Fiee.  So  also  are  municipal  ordi- 
nances, in  the  exercise  of  police  power,  pro- 
hibiting the  sale  of  a  commodity,  otherwise 
than  in  original  packages,  as  intoxicating 
liquor;  Duluth  Brewing  &  Malting  Co.  v. 
Superior,  123  Fed.  353,  59  C.  C.  A.  481;  or 
perishable  market  produce  sold  in  railroad 
depots ;  State  v.  Davidson,  50  La.  Ann.  1297, 
24  South.  324,  69  Am.  St.  Rep.  478. 

The  principles  regulating  the  police  power 
of  the  states  in  its  relation  to  the  commerce 
clause  are  well  defined  in  Reid  v.  Colorado, 
187  U.  S.  137,  23  Sup.  Ct.  92,  47  L.  Ed.  108, 
where  it  was  said  in  substance  that  the 
United  States  constitution  gives  no  one  a 
right  to  introduce  into  a  state,  against  its 
will,  live  stock  affected  by  a  contagions  dis- 
ease. Congress  not  having  assumed  charge 
of  the  matter  as  involved  in  interstate  com- 
merce, a  state  may  protect  its  people,  but  it 
must  not  go  beyond  the  necessities  of  the 
case  nor  unreasonably  burden  the  exercise  ot 
privileges  secured  by  the  constitution. 

State  Action  Valid  in  Case  of  Non-Action 
by  Congress.  There  is  a  class  of  cases  in 
which  the  state  may  act  so  long  as  congress 
does  not,  as  detailed  in  County  of  Mobile  v. 
Kimball,  supra.  The  question  whether  non- 
action by  congress  "is  conclusive  of  its  inten- 
tion that  the  subject  shall  be  free  from  all 
positive  regulation,  or  that,  until  it  positively 
interferes,  such  commerce  may  be  left  to  be 
freely  dealt  with  by  the  respective  states,"  is 
to  be  determined  in  each  case  as  it  arises ; 
Bowman  v.  Ry.  Co.*  125  U.  S.  465,  483,  8 
Sup.  Ct.  689,  1062,  31  L.  Ed.  700. 

In  this  class  of  cases  have  been  included: 
Laws  for  the  regulation  of  pilots ;  Cooley  v. 
Board  of  Wardens,  etc.,  12  How.  (U.  S.)  299, 
13  L.  Ed.  996;  Pacific  Mail  S.  S.  Co.  v.  Jo- 
liffe,  2  Wall.  (U.  S.)  450,  17  L.  Ed.  805;  In 
re  McNiel,  13  Wall.  (U.  S.)  236,  20  L.  Ed. 
624;  Wilson  v.  McNamee,  102  U.  S.  572,  26 
L.  Ed.  234 ;  quarantine  and  inspection  laws 
and  the  policing  of  harbors ;  Gibbons  v.  Og- 
den,  9  Wheat.  (U.  S.)  1,  203,  6  L.  Ed.  23; 
New  York  v.  Miln,  11  Pet.  (U.  S.)  102,  9  L.  Ed. 
648 ;  Morgan's  Louisiana  &  T.  R.  &  S.  S.  Co. 
v.  Board  of  Health,  118  U.  S.  455,  6  Sup.  Ct 
1114,  30  L.  Ed.  237 ;  the  improvement  of  nav- 
igable channels;    Mobile  County  v.  Kimball, 


COMMERCE 


541 


COMMERCE 


102  U.  S.  691,  26  L.  Ed.  238 ;  Escanaba  &  L. 
M.  Transp.  Co.  v.  Chicago,  107  U.  S.  678, 
2  Sup.  Ct.  185,  27  L.  Ed.  442;  Huse  v.  Clo- 
ver, 119  U.  S.  543,  7  Sup.  Ct  313,  30  L.  Ed. 
487;  the  regulation  of  wharfs,  pins,  and 
docks;  Cannon  v.  New  Orleans,  20  Wall.  (U. 
S.t  577,  22  L.  Ed.  417;  Keokuk  Northern 
Line  Packet  Co.  v.  Keokuk,  95  U.  S.  SO,  .:  1  L. 
Ed.  377 ;  Northwestern  Union  Packet  Co.  v. 
St.  Louis,  100  U.  S.  423,  25  i-  Ed.  688;  Par- 
kersburg  &  O.  R.  Transp.  Co.  v.  Parkers- 
bur-.  107  U.  S.  691,  2  Sup.  Ct.  7::2,  27  P.  Ed. 
Ouachita  &  M.  R.  Packet  Co.  v.  Aiken, 
121  P.  S.  4  11.  7  Sup.  Ct.  907,  30  L.  Ed 
97G;  the  establishment  of  ferries;  Conway 
v.  Taylor's  Ex'r,  1  Black  (P.  S.)  003,  17  L. 
Ed.  101;  Covington  &  C.  Pridge  Co.  v.  Ken- 
tucky, 154  P.  S.  211,  PI  Sup.  Ct.  10S7,  38 
P.  Ed.  962;  Marshall  v.  Grimes,  41  Mi  27; 
Chilvers  v.  People,  11  Mich.  43;  and  dams; 
Willson  v.  Marsh  Co.,  2  Pet  (U.  S. )  21.1,7  L. 
Ed.  412;  Neaderhouser  v.  State,  28  Ind 
LT>7;  Woodman  v.  Mfg.  Co.,  1  Biss.  546,  Fed. 
Cas.  No.  17,978;  Carroll  v.  Campbell,  108 
Mo.  550,  17  S.  \Y.  SS4;  acts  giving  a  right 
of  action  against  the  owners  of  a  vessel 
engaged  in  interstate  traliic  for  the  death 
of  a  passenger  caused  by  the  negligence  of 
those  in  charge  of  the  vessel;  Sherlock  v. 
Ailing,  93  U.  s.  P!>,  23  P.  Ed.  819;  forbid- 
ding the  sale  of  plumage,  skin  or  body  of 
any  non-game  bird,  whether  captured  or 
killed  within  or  without  the  state;  In  re 
Schwartz,  119  La.  290,  44  South.  20,  121 
Am.  St.  Rep.  516;  acts  for  preventing  the 
spread  of  disease  among  plants  and  trees 
whether  grown  or  sold  within  or  without 
the  state  and  transported  and  sold  for  plant- 
ing within  the  state;  Ex  parte  Ilawley,  22  S. 
D.  23,  115  N.  W.  93,  15  L.  R.  A.  (X.  S.)  138. 
The  state  may  authorize  the  building  of 
dams  and  bridges  over  navigable  waters, 
notwithstanding  the  fact  that  they  may,  to 
some  extent,  interfere  with  the  navigation 
of  the  stream;  Willson  v.  p.lack-Bird  Creek 
Marsh  Co.,  2  Pet  (U.  S.)  245,  7  P.  Ed.  412; 
Cardwell  v.  Bridge  Co.,  113  P.  S.  205,  5  Sun. 
Ct.  423,  28  L.  Ed.  !>."»!>;  Pound  v.  Turck,  95 
U.  S.  459,  24  L.  Ed.  525.  If  the  stream  is 
one  over  which  the  regulation  of  congress 
extends,  the  question  arises  whether  the 
bridge  will  interfere  with  navigation  or  not; 
it  is  not  necessarily  unlawful  if  properly 
built,  and  if  the  general  traflic  of  the  coun- 
try will  be  benefited  rather  than  injured 
by  its  construction.  There  are  many  cases 
in  which  a  bridge  may  be  vastly  more  im- 
portant than  the  navigation  of  the  stream 
which  it  crosses.  It  may  be  said  that  a  state 
may  authorize  such  constructions,  provided 
they  do  not  constitute  a  material  obstruction 
to  navigation;  and  each  case  depends  upon 
its  own  particular  facts.  The  decision  of 
the  state  legislature  is  not  conclusive;  the 
final  decision  rests  with  the  federal  courts, 
who  may  cause  the  structure  to  be  abated 
if  it  be  found  to  obstruct  unnecessarily  the 


traffic   on   the   stream;    Cooley,   Const.   Lim. 
738,  739,  740;  Pennsylvania  v.  Pridge  Co.,  Pi 
How.    (P.    S.)   51S,    14    P.    Ed    249;    see  abo 
Columbus  Ins.  Co.   v.  Bridge   Ass'n,  o    Mc- 
Lean   70,    Fed.    Cas.    No.    3,1  .mbus 
Ins.  Co.  v.  Curtenius,  <;  Mel 
Cas.    No.    3,045;    Jolly    v.    Draw-Bl 
<;  McLean    237,  Fed.  1            ».  7,4 11;  B 
of  Com'rs   of   St.   J'                  mty    v.    1 
5   Ind.  i:i;  Rhea  v.  P.   Co..  50   I 
v.  Leighton,  83  Me.  41!*,  22  am.  ::-  I;  Luxton 

...  153  P.  s.  525,  14  Su] .  <  • 
38  L.  Ed.  808;  Covington  &  C.    B 
v.  Kentucky,  154  p.  S.  204,  14  Sup.  Ct  1087, 
38  L.  Pd.  962.     See  Bridge.    The  state  has 
also  the  power  to  regulate  the  '-peed  and  geu- 
>nduct  of  vessels  navigating  its  waters. 
provided    such    regulations    do    not    conflict 
with  regulations  prescribed   by  congress  for 
foreign  commerce,  or   commerce   arnon 
st.-itos:   Cooley,  Const   Lim.   740;  People   v. 
Jenkins,  1    Hill    (N.  Y.)    469,  470. 

Of  this  class  of  cases,  it  was  said  by  Mr. 
Justice  Curtis  in  Cooley  v.  Board  of  Ward 
ens,  12  How.  (P.  S.)  299,  318,  [13  P.  Ed.  990]: 
"If  it  were  admitted  that  the  existence  of 
this  power  in  congress,  like  the  power  of 
taxation,  is  compatible  with  the  existence 
of  a  similar  power  in  the  states,  then  it 
would  be  in  conformity  with  the  contempo- 
rary exposition  of  the  constitution  (Federal- 
ist No.  32),  and  with  the  judicial  construc- 
tion given  from  time  to  time  by  this  court 
after  the  most  deliberate  consideration,  to 
hold  that  the  mere  grant  of  such  power  to 
congress  did  not  imply  a  prohibition  on  the 
states  to  exercise  the  same  power;  that  it 
is  not  the  mere  existence  of  such  a  power, 
but  its  exercise  by  congress,  which  may  be 
incompatible  with  the  exercise  of  the  same 
power  by  the  states,  and  that  the  states  may 
legislate  in  the  absence  of  congressional  reg- 
ulations." See,  also,  Sturircs  v.  Crownin- 
shield,  4  Wheat.  (P.  S.)  122.  193,  4  L.  Pd. 
529.  But  even  in  the  matter  of  building  a 
bridge,   if   congress  to    act,    its   ac- 

tion necessarily  supersedes  the  action  of  the 
state;  Pennsylvania  v.  Pridge  Co.,  18  How. 
(U.  S.)  421,  15  P.  Ed.  435.  As  a  matter  of 
fact,  the  building  of  bridges  over  waters 
dividing  two  states  is  now  usually  done  by 
congressional  sanction.  See  Navigable  Wa- 
ters. 

Under  this  power  the  state  may  also  tax 
the  instruments  of  interstate  commerce  as 
it  taxes  other  similar  property,  provided 
such  tax  is  not  laid  upon  the  commer< 
self.  Brown,  J.,  in  Covington  &  C.  Bridge 
Co.  v.  Kentucky.  154  U.  S.  204,  11  Su 
10S7,  3S  P.  Ed.  962. 

But  wherever  such  laws.  Instead  of  being 
of  local  nature  and  only  affecting  interstate 
commerce  Incidentally,  are  national  in  their 
character,  the  non-action  of  congress  indi- 
cates its  will  that  such  commerce  shall  be 
free  and  untrammelled,  and  the  case  falls 
within  the  class  wherein  the  jurisdiction  of 


COMMERCE 


542 


COMMERCE 


congress  is  exclusive;  Brown  v.  Houston,  114 
U.  S.  622,  5  Sup.  Ct.  1091,  29  L.  Ed.  257 ; 
Bowman  v.  Ry.  Co.,  125  U.  S.  465,  8  Sup. 
Ct.  6S9,  1062,  31  L.  Ed.  700;  Covington  &  C. 
Bridge  Co.  v.  Kentucky,  154  U.  S.  204,  14 
Sup.  Ct.  1087,  38  L.  Ed.  962,  and  supra. 

This  contingent  right  of  action  by  the 
states  may  sometimes  be  exercised  by  the 
courts  as  well  as  by  legislatures,  as  where 
there  has  been  no  action  by  congress  or  the 
interstate  commerce  commission,  a  state 
court  may  by  mandamus  compel  a  railroad 
company  doing  interstate  business  to  afford 
equal  switching  service  to  its  shippers  not- 
withstanding the  cars  in  regard  to  which 
the  service  is  claimed  would  eventually  be 
engaged  in  interstate  commerce;  Missouri 
Pac.  Ry.  Co.  v.  Flour  Mills  Co.,  211  U.  S.  612, 
29  Sup.  Ct.  214,  53  L.  Ed.  352. 

The  Wilson  Act  (see  Liquor)  provides  that 
intoxicating  liquors  transported  into  any 
state  or  territory  shall  be  subject  to  the  laws 
thereof  enacted  under  the  police  power  "up- 
on arrival  in  such  state."  In  construing 
this  act  it  has  been  held  that  the  interstate 
commerce  is  not  ended  until  the  goods  are 
moved  from  the  station  platform  to  the 
freight  warehouse,  if  sent  by  express;  Rhodes 
v.  Iowa,  170  U.  S.  412,  18  Sup.  Ct.  664,  42 
L.  Ed.  1088;  State  v.  Intoxicating  Liquors, 
102  Me.  206,  66  Atl.  393,  11  L.  R.  A.  (N.  S.) 
550;  that  they  are  not  subject  to  seizure 
while  in  the  hands  of  the  express  company; 
Adams  Exp.  Co.  v.  Iowa,  196  U.  S.  147,  25 
Sup.  Ct.  185,  49  L.  Ed.  424;  that  delivery  to 
the  consignee  is  necessary  to  constitute  ar- 
rival in  the  state;  Heymann  v.  Ry.  Co.,  203 
U.  S.  270,  27  Sup.  Ct.  104,  51  L.  Ed.  178,  7 
Ann.  Cas.  1130 ;  and  that  this  phrase  means 
actual,  not  implied,  delivery;  U.  S.  v.  Build- 
ing Co.,  206  U.  S.  120,  27  Sup.  Ct.  676,  51 
L.  Ed.  983;  Adams  Exp.  Co.  v.  Kentucky,  206 
U.  S.  138,  27  Sup.  Ct.  608,  51  L.  Ed.  992; 
that  an  agreement  of  the  local  express  agent 
to  hold  for  a  few  days  a  C.  O.  D.  shipment 
to  suit  the  convenience  of  the  consignee  in 
paying  did  not  affect  the  transaction  as  in- 
terstate commerce;  American  Exp.  Co.  v. 
Kentucky,  206  U.  S.  139,  27  Sup.  Ct.  609,  51 
L.  Ed.  993;  State  v.  Intoxicating  Liquors, 
101  Me.  430,  64  Atl.  812.  In  State  v.  Holley- 
man,  55  S.  a  207,  31  S.  E.  362,  33  S.  E.  366, 
45  L.  R,  A.  567,  before  the  United  States 
Supreme  Court  decisions,  it  was  held  that 
liquor  received  in  another  state  and  taken 
to  its  destination  in  a  buggy  did  not  "arrive" 
until  both  buggy  and  liquor  arrived  with 
the  purchaser  at  his  home  in  the  state. 
Cases  which  held  otherwise,  decided  prior 
to  the  United  States  Supreme  Court  deci- 
sions and  of  course  overruled  by  them,  are 
In  re  Langford,  57  Fed.  570;  Southern  Exp. 
Co.  v.  State,  114  Ga.  226,  39  S.  E.  899 ;  State 
v.  Intoxicating  Liquors,  95  Me.  140,  49  Atl. 
670 ;  State  v.  Intoxicating  Liquors,  96  Me. 
415,  52  Atl.  911.  An  article  in  22  Green 
Bag  10,  on  "Liquor  in  Interstate  Relations" 


suggests  that,  to  give  effect  to  state  laws, 
congress  may  either  repeal  all  legislation 
recognizing  liquors  as  the  subject  of  inter- 
state commerce,  or  explicitly  recognize  that, 
for  the  purpose  of  giving  effect  to  state  pro- 
hibitory legislation,  they  are  not  to  be  re- 
garded as  such. 

State  Action  Held  Invalid.  Any  "state  leg- 
islation which  seeks  to  impose  a  direct  bur- 
den upon  interstate  commerce,  or  to  inter- 
fere directly  with  its  freedom  does  encroach 
upon  the  exclusive  power  of  congress";  Rae 
v.  Loan  &  Guaranty  Co.,  176  U.  S.  126,  20 
Sup.  Ct.  341,  44  L.  Ed.  398;  Lindsay  &  P. 
Co.  v.  Mullen,  176  U.  S.  147,  20  Sup.  Ct 
325,  44  L.  Ed.  400;  quoting  Wabash,  St.  L. 
&  P.  R.  Co.  v.  Illinois,  118  U.  S.  557,  7  Sup. 
Ct.  4,  30  L.  Ed.  244,  where  it  was  held  that 
a  long  and  short  haul  clause  in  a  state  stat- 
ute was  invalid  as  applied  to  interstate  com- 
merce. The  following  are  invalid :  A  state 
statute  requiring  carriers  by  water  to  give 
all  persons,  without  distinction  of  race  or 
color,  equal  rights  and  privileges  in  all 
parts  of  the  vessel,  it  being  in  effect  a  reg- 
ulation of  conduct  through  the  entire  voy- 
age while  assuming  to  regulate  it  while 
passing  through  the  state;  Hall  v.  De  Cuir, 
95  U.  S.  485,  24  L.  Ed.  547  (but  not  one  which 
only  applies  to  passengers  carried  within  the 
state;  Louisville  R.  Co.  v.  Mississippi,  133 
U.  S.  587,  10  Sup.  Ct.  348,  33  L.  Ed.  784)  ;  or 
any  penal  statute  which  interferes  with 
commerce;  Minnesota  v.  Barber,  136  U.  S. 
313,  10  Sup.  Ct.  862,  34  L.  Ed.  455;  as  an 
act  requiring  the  license  of  a  pedlar  of  tea, 
the  growth  of  a  foreign  country.  A  statute 
is  invalid  which  under  pretense  of  protecting 
the  public  health  imposes  a  direct  burden 
on  interstate  commerce;  Com.  v.  Moore,  214 
Mass.  19,  100  N.  E.  1071;  and  so  is  a  stat- 
ute, ostensibly  a  license  tax,  but  in  fact  a 
regulation  of  commerce;  Voight  v.  Wright, 
141  U.  S.  62,  11  Sup.  Ct.  855,  35  L.  Ed.  638 
(where  the  provision  that  flour  brought  into 
a  state  and  offered  for  sale  should  be  re- 
viewed and  have  the  Virginia  inspection 
mark  on  it,  was  held  discriminating  and  un- 
constitutional, such  inspection  not  being  re- 
quired for  flour  manufactured  in  the  state) ; 
Brimmer  v.  Rebman,  138  U.  S.  78,  11  Sup. 
Ct.  213,  34  L.  Ed.  862  (where  there  was  a 
license  tax  on  the  sale  of  western  meat, 
accompanied  by  burdensome  regulations  not 
imposed  on  the  sale  of  meat  produced  in 
the  state) ;  and  a  license  tax  on  photogra- 
phers, etc.,  does  not  affect  the  shipment  from 
a  corporation  in  another  state  of  pictures 
and  frames  to  be  put  together  and  delivered 
by  its  agent,  who  is  free  from  license  tax; 
Caldwell  v.  North  Carolina,  187  U.  S.  622,  23 
Sup.  Ct  229,  47  L.  Ed.  336. 

A  state  statute  penalizing  shipments  of 
liquor  C.  O.  D.  and  making  the  place  of 
delivery  the  place  of  sale  is  invalid;  Adams 
Express  Co.  v.  Kentucky,  206  U.  S.  129,  27 
Sup.   Ct   606,  51   L.  Ed.   987.     Liquor  is  a 


COMMERCE 


543 


COMMERCE 


recognized  article  of  commerce  and  a  state 
law  denying  the  right  to  send  it  from  one 
state  to  another  is  unconstitutional ;  Vance 
v.  Vandercook  Co.,  170  U.  S.  438,  18  Sup. 
Ct.  674,  42  L.  Ed.  1100,  followed  in  Adams 
Express  Co.  v.  Kentucky,  214  U.  S.  218,  29 
Sup.  Ct.  033,  53  L.  Ed.  972;  Louisville  &  N. 
R.  Co.  v.  Brewing  Co.,  223  U.  S.  70,  32  Sup. 
Ct.  189,  56  L.  Ed.  355;  in  both  which  cases  it 
is  also  held  that  transportation  is  not  com- 
pleted until  delivery  to  the  consignee,  and 
under  the  Wilson  Act  (q.  v.)  it  is  not  BUbject 
to  regulation  under  stale  laws  until  such  de- 
livery.    See  supra. 

A  burden  imposed  upon  interstate  com- 
merce cannot  be  sustained  simply  because 
the  statute  imposing  it  applies  to  the  people 
of  all  the  states,  including  the  enacting  one; 
Minnesota  v.  Barber,  136  U.  S.  313,  10  Sup. 
Ct  862,  34  L.  Ed.  455,  where  a  statute  re- 
quiring inspection  within  twenty-four  hours 
before  slaughtering  of  all  animals  killed  for 
food,  was  held  unconstitutional. 

While  a  state  may  confer  power  on  an 
administrative  agency  to  make  reasonable 
regulations  as  to  the  place,  time  and  man- 
ner of  the  delivery  of  merchandise,  any  regu- 
lation which  directly  burdens  interstate  com- 
merce is  a  regulation  thereof  and  unconstitu- 
tional; McNeill  v.  R.  Co.,  202  U.  S.  543,  26 
Sup.  Ct.  722,  50  L.  Ed.  1142,  where  the  regu- 
lation was  an  order  requiring  a  railroad  com- 
pany to  deliver  cars  from  another  state  to 
the  consignee  on  a  private  siding  beyond 
its  own  right  of  way;  but  where  congress 
and  the  interstate  commerce  commission 
have  not  acted,  the  state  may  compel  a  rail- 
road company  to  give  equal  switching  facili- 
ties to  all  customers,  even  if  affecting  cars 
to  be  used  in  interstate  commerce;  Missouri 
Pac.  R.  Co.  v.  Mills  Co.,  211  U.  S.  612,  29 
Sup.  Ct.  214,  53  L.  Ed.  352. 

Other  cases  of  invalid  state  action  were : 
Assessment  by  a  state  for  taxation  of  prop- 
erty in  original  packages  before  incorpora- 
tion into  the  mass  of  property;  May  v.  New 
Orleans,  178  U.  S.  496,  20  Sup.  CL  970,  44 
L.  Ed.  1165;  and  taxation  of  tea  imported 
from  a  foreign  country,  and  stored  in  a 
government  warehouse  in  the  original  un- 
broken package;  Siegfried  v.  Raymond,  190 
111.  424,  60  N.  E.  S6S. 

A  state  has  no  power  to  interfere  with  an 
interstate  commerce  train  if  thereby  a  di- 
rect burden  is  imposed  upon  interstate  com- 
merce, as  by  a  police  regulation  requiring 
the  stoppage  of  a  train  at  certain  stations; 
Mississippi  R.  Com.  v.  R.  Co.,  203  U.  S.  335, 
27  Sup.  Ct  90,  51  L.  Ed.  209;  Cleveland,  C. 
C.  &  St  L.  Ry.  Co.  v.  Illinois,  177  U.  S.  514, 
20  Sup.  Ct  722,  44  L.  Ed.  SOS:  or  regula- 
tions of  master  and  servant,  applicable  to 
those  actually  engaged  in  the  operation  of 
interstate  commerce  after  congress  had  act- 
ed upon  the  subject ;  Atlantic  Coast  Line  R. 
Co.  v.  Wharton,  207  U.  S.  32S,  28  Sup.  Ct 
121,  52  L.  Ed.  230 ;  Johnson  v.  Southern  Co., 


196  U.  S.  1,  25  Sup.   I  19  L.  Ed.  363; 

Schlemmer  v.  R.  Co.,  200  D.  S.  1,  27  Sup.  Ct. 
407,  51  L.  Ed.  681. 

The  Minnesota  Elate  Cases,  230  U.  s 
33   Sup.   Ct.   729,   57   L.    Ed.    1511,   have   been 
repelled   since  this  title    was   prepared.     It 
might    be   cited   as   an   authority    eonhrming 
almost  every  legal  proposition   above 
as   established    by   the   authorities,    and    the 
opinion  of  the  court  by  Mr.  Justice  II 
may  be  referred   to  as  a   thorough  and 
haustive  discussion  of  the  whole  subj* 
Interstate  commerce. 

The  special  point  decided  arose  out  of  the 
contention  that,  even  admitting  that  the 
rates  prescribed  by  the  state  were  rea 
ble,  as  a  regulation  of  intrastate  conn 
as  applied  to  cities  on  the  state's  boundary 
or  to  places  within  competitive  districts 
crossed  by  the  state  line,  nevertheless  the 
rates  disturbed  the  relation  previously  exist- 
ing between  interstate  and  intrastate  rates, 
thus  imposing  a  direct  burden  upon  inter- 
state commerce  and  creating  discriminations 
as  against  localities  in  other  states.  In  re- 
ply to  this  contention,  it  was  held  that  the 
authority  of  the  state  to  prescribe  reasonable 
charges  for  intrastate  transportation  is  state- 
wide, unless  limited  by  the  exercise  of  the 
constitutional  power  of  congress,  which  is 
not  confined  to  a  part  of  the  state,  but  ex- 
tends throughout  its  limits — to  cities  adja- 
cent to  its  boundaries  as  well  as  to  those  in 
the  interior ;  and  a  restriction  of  the  authori- 
ty of  the  state  must  be  by  virtue  of  the  ac- 
tual exercise  of  the  federal  control  and  not 
by  reason  of  a  dormant  federal  power  that 
has  not  been  exerted. 

See  Interstate  Commerce  Commission; 
Constitution  of  United  States. 

COMMERCE  CLAUSE.  .See  Commebce; 
Original  Package;  Constitution  of  the 
United  States. 

COMMERCE  COURT.  See  United  States 
Courts. 

COMMERCE,      DEPARTMENT      OF.      See 

Departments. 

COMMERCIA  BELLI.  Agreements  enter- 
ed into  by  belligerents,  either  in  time  of 
peace  to  take  effect  in  the  event  of  war,  or 
during  the  war  itself,  by  which  arrangement 
is  made  for  non-hostile  Intercourse.  They 
may  take  the  form  of  armistices,  truces, 
capitulations,  cartels,  i 
ducts,  safeguards.  1  Kent  159;  2 
See  separate  titles. 

Contracts  between  citizens  of  one  b< 
ent  and  those  of  another,  or  between  <  iti- 
zens  of  one  belligerent  and  the  other  belliger- 
ent They  may  take  the  form  of  ransom 
bills  (<].  v.),  bills  of  exchange  drawn  by  pris- 
oners of  war,  or  receipts  for  requisitions.  1 
Kent  104. 

COMMERCIAL  AGENCY.  A  person,  firm, 
or  corporation   engaged   in    the   business   of 


COMMERCIAL  AGENCY 


544 


COMMERCIAL  AGENCY 


collecting  information  as  to  the  financial 
standing,  ability,  and  credit  of  persons  en- 
gaged in  business  and  reporting  the  same 
to  subscribers  or  to  customers  applying  and 
paying  therefor.  "They  have  become  vast 
and  extensive  factors  in  modern  commercial 
transactions  for  furnishing  information  to 
retail  jobbers  as  well  as  to  wholesale  mer- 
chants. The  courts  are  bound  to  know  judi- 
cially that  no  vendor  of  goods  at  wholesale 
can  be  regarded  as  a  prudent  business  man 
if  he  sells  to  a  retail  dealer,  upon  a  credit, 
without  first  informing  himself  through 
these  mediums  of  information  of  the  finan- 
cial standing  of  the  customer,  and  the  credit 
to  which  he  is  fairly  entitled;"  Furry  v. 
O'Connor,  1  Ind.  App.  573,  28  N.  E.  103.  See 
also  Eaton,  Cole  &  Burnham  Co.  v.  Avery, 
83  N.  Y.  31,  38  Am'.  Rep.  389;  Holmes  v. 
Harrington,  20  Mo.  App.  661. 

How  far  the  agency  may  contract  against 
its  own  negligence.  An  exception  is  made 
to  some  extent  in  favor  of  such  agencies  to 
the  rule  against  stipulations  by  a  person 
against  liability  for  his  own  negligence. 
The  agency  usually  contracts  that  their 
agents  shall  be  considered  as  the  agents  of 
their  patrons,  and  that  they  shall  not  be 
liable  for  the  negligence  of  their  agents. 
Where  in  an  action  upon  such  a  contract 
the  plaintiff  contended  that  under  it  the 
agency  was  protected  only  against  gross 
and  not  against  ordinary  negligence,  it  was 
held  otherwise;  Duncan  v.  Dun,  7  W.  N.  C. 
(Pa.)  246,  Fed.  Cas.  No.  4,134. 

Under  a  contract  that  the  actual  correct- 
ness of  the  information  was  in  no  manner 
guaranteed,  the  agency  was  not  liable  for 
loss  occasioned  to  a  subscriber  by  the  wilful 
and  fraudulent  act  of  a  sub-agent  in  furnish- 
ing false  information ;  Dun  v.  Bank,  58  Fed. 
174,  7  C.  C.  A.  152,  23  L.  R.  A.  687,  reversing 
City  Nat.  Bank  v.  Dun,  51  Fed.  160.  Where 
the  inquiry  was  made  concerning  a  grocer 
and  the  agency  reported  concerning  the 
wrong  person,  who  had  the  same  name  and 
was  a  grocer  and  saloon  keeper,  the  plaintiff 
could  not  recover  from  the  agency  the  value 
of  goods  sold  on  the  strength  of  the  report, 
the  evidence  being  held  to  show  that  there 
was  not  such  gross  negligence  as  would 
render  the  agency  liable;  Xiques  v.  Brad- 
street  Co.,  70  Hun  334,  24  N.  Y.  Supp.  48; 
but  such  a  contract  does  not  protect  the 
agency  from  an  error  made  in  the  publica- 
tion of  its  books  of  reference  giving  the 
financial  responsibility  of  merchants  and 
others,  and  upon  which  a  subscriber  of  the 
agency  relied  in  selling  goods  and  suffered 
a  loss,  and  in  such  case  it  is  unnecessary  to 
thus  establish  the  insolvency  of  the  purchas- 
er by  suit  before  suing  the  agency ;  Crew  v. 
Bradstreet  Co.,  134  Pa.  161,  19  Atl.  500,  7 
L.  R.  A.  661,  19  Am.  St.  Rep.  681. 

When  reports  are  privileged  and  when 
libellous.  Such  an  agency  is  a  lawful  busi- 
ness  when   lawfully  conducted,   but  is  not 


exempt  from  liability  for  false  and  defama- 
tory publications  when  other  citizens  would 
not  be  exempt.  Its  communications  to  a  per- 
son interested  in  the  information  are  privi- 
leged even  if  false,  if  made  in  good  faith 
and  without  malice,  but  if  communicated  to 
its  subscribers  generally  they  are  not  privi- 
leged; Bradstreet  Co.  v.  Gill,  72  Tex.  115,  9 
S.  W.  753,  2  L.  R.  A.  405,  13  Am.  St.  Rep. 
768;  Kingsbury  v.  Bradstreet  Co.,  116  N.  Y. 
211,  22  N.  E.  365;  Woodruff  v.  Bradstreet 
Co.,  116  N.  Y.  217,  22  N.  E.  354,  5  L.  R.  A. 
555;  Pollasky  v.  Minchener,  81  Mich.  280, 
46  N.  W.  5,  9  L.  R.  A.  102,  21  Am.  St.  Rep. 
516;  Mitchell  v.  Bradstreet  Co.,  116  Mo.  226, 
22  S.  W.  358,  724,  20  L.  R.  A.  138,  38  Am. 
St.  Rep.  592 ;  State  v.  Lonsdale,  48  Wis.  348, 
4  N.  W.  390;  Trussell  v.  Scarlett,  18  Fed. 
214;  King  v.  Patterson,  49  N.  J.  L.  417,  9 
Atl.  705,  60  Am.  Rep.  622;  Erber  v.  R.  G. 
Dun  &  Co.,  4  McCrary  160,  12  Fed.  526; 
Johnson  v.  Bradstreet  Co.,  77  Ga.  172,  4  Am. 
St.  Rep.  77.  See  also  3  Montreal,  Q.  B.  83; 
18  Can.  S.  C.  222.  The  contract  of  the  agen- 
cy to  furnish  information  to  all  its  subscrib- 
ers, including  those  who  have  no  special  in- 
terest in  it,  is  no  defence  to  an  action  for 
libel;  King  v.  Patterson,  49  N.  J.  L.  417,  9 
Atl.  705,  60  Am.  Rep.  622 ;  nor  was  the  fact 
that  the  information  was  given  by  printed 
signs  of  which  each  subscriber  had  the  key ; 
Sunderlin  v.  Bradstreet,  46  N.  Y.  188,  7  Am. 
Rep.  322;  the  matter  is  privileged  if  com- 
municated to  the  proper  person  by  a  clerk 
or  agent  as  well  as  by  the  proprietor  of  the 
agency ;  King  v.  Patterson,  49  N.  J.  L.  417, 
9  Atl.  705,  60  Am.  Rep.  622;  Erber  v.  R.  G. 
Dun  &  Co.,  12  Fed.  526;  (but  see  Beardsley 
v.  Tappan,  5  Blatchf.  497,  Fed.  Cas.  No. 
1,189,  and  Tappan  v.  Beardsley,  10  Wall. 
427,  19  L.  Ed.  974,  criticised  in  the  two  cases 
just  cited  ;)  or  if  specially  reported  upon  prop- 
er occasion  to  subscribers  having  special  in- 
terest in  them,  though  not  applied  for  by  such 
subscribers ;  Locke  v.  Bradstreet  Co.,  22  Fed. 
771 ;  but  if  a  subscriber  apply  for  special 
information  from  the  agency,  a  false  de- 
nunciation of  the  person  inquired  about, 
coupled  with  the  report,  is  actionable ;  Brown 
v.  Durham,  3  Tex.  Civ.  App.  244,  22  S.  W. 
868.  So  also  are  statements  at  first  privileg- 
ed but  repeated  and  persisted  in  when  known 
to  be  false,  or,  if  otherwise  pririleged,  made 
maliciously;  Erber  v.  R.  G.  Dun  &  Co.,  12 
Fed.  526;  or  if  made  recklessly  and  without 
due  care  and  caution  in  making  inquiry; 
Locke  v.  Bradstreet  Co.,  22  Fed.  771 ;  Brad- 
street Co.  v.  Gill,  72  Tex.  115,  9  S.  W.  753,  2 
L.  R.  A.  405,  13  Am.  St.  Rep.  768;  Lowry 
v.  Vedder,  40  Minn.  475,  42  N.  W.  542. 

The  publication  and  circulation  to  sub- 
scribers in  daily  reports  of  the  execution  of 
a  chattel  mortgage  was  not  libellous ;  New- 
bold  v.  J.  M.  Bradstreet  &  Son,  57  Md.  38, 
40  Am.  Rep.  426 ;  contra,  King  v.  Patterson, 
49  N.  J.  L.  417,  9  Atl.  705,  60  Am.  Rep.  022 ; 
nor  was  that  of  a  copy  of  a  judgment,  with 


COMMERCIAL  AGENCY 


545 


COMMERCIAL  AG] 


a  note  that  the  judgment  was  paid  the  same 
day;  8  Ir.  Rep.  349;  but  in  a  similar  case 
when  the  judgment  was  so  paid,  but  it  was 
not  so  stated,  the  publication  was  held  libel- 
lous; 1G  Ir.  Rep.  C.  L.  208;  and  so  also  is  a 
false  publication  of  a  trader  that  a  judgment 
had  boon  rendered;  22  Q.  B.  134.  And  where 
the  action  was  for  publishing  that  a  judg- 
ment had  been  rendered  when  only  a  verdict 
had  been  returned,  it  was  held  proper  to  ask 
a  witness  to  the  effect  of  such  statement, 
whether  if  he  bad  known  the  actual  fact 
his  conduct  would  have  Oeen  the  same;  Hes- 
sel  v.  Bradstreet  Co.,  141  Pa.  501,  21  Atl. 
659. 

The  burden  of  proof  is  upon  the  agency 
to  show  privilege  prima  facie,  and  after  its 
character  is  established  the  burden  is  on 
the  plaintiff  to  show  malice;  Erber  v.  R.  G. 
Dun  &  Co.,  12  Fed.  526;  Ormsby  v.  Douglass, 
37  N.  Y.  477;  and  it  is  matter  of  law  for 
the  court  to  determine  whether  the  matter 
published  is  libellous  per  se;  Woodruff  v. 
Bradstreet  Co.,  35  Hun    (N.  Y.)    16. 

An  action  for  libel  may  be  brought  by  a 
person  whose  name  is  published  in  a  book 
containing  a  list  of  delinquent  debtors,  dis- 
tributed to  subscribers,  manifestly  for  coerc- 
ing the  payment  of  claims,  who  is  denied 
credit  because  of  such  publication,  or  by  one 
to  whom  a  letter  is  sent  in  an  envelope  on 
which  is  printed  the  name  of  an 
and  a  statement  that  it  is  an  organization 
for  the  purpose  of  collecting  bad  debts; 
Muetze  v.  Tuteur,  77  Wis.  236,  46  N.  W.  123, 
9  L.  R.  A.  86,  20  Am.  St.  Rep.  115. 

A  report  of  a  mercantile  agency,  alleging 
that  plaintiff  had  made  a  general  assign- 
ment for  the  benefit  of  creditors,  is  not  privi- 
leged, where  it  appears  that  plaintiff  had 
assigned  only  to  secure  the  endorsement  of 
a  note;  Douglass  v.  Daisley,  114  Fed.  628, 
52  C.  C.  A.  324.  57  L.  R.  A.-  475 ;  but  if  the 
mistake  could  not  have  been  avoided  by  rea- 
sonable care,  the  report  is  privileged,  but  if 
it  was  the  result  of  carelessness,  the  privi- 
lege is  lost ;  id.  Communications  though 
made  in  good  faith  by  a  commercial  agency 
to  a  subscriber  containing  defamatory  state- 
ments of  plaintiff's  character,  are  not  privi- 
leged; riOOSl  A.  C.  390.  A  complaint  that  a 
mercantile  agency  report  alleging  that  plain- 
tiff's account  with  the  bank  was  "not  class- 
ed as  an  entirely  desirable  one,"  and  averred 
to  be  false  and  malicious,  was  held  good  on 
demurrer;  Mower-Hobart  Co.  v.  R.  G.  Dun 
&  Co.,  131  Fed.  812. 

Effect  of  fraudulent  representations  by 
vendee  to  agency  upon  vendor  who  relics  up- 
on  them.  An  action  for  deceit  will  lie 
against  persons  or  corporations  making  false 
representations  of  pecuniary  responsibility 
to  an  agency  in  order  to  obtain  credit  and 
defraud  those  who  may  rely  upon  the  re- 
ports; Carroll  Exchange  Bank  v.  Bank,  50 
Mo.  App.  94;  Eaton,  Cole  &  Burnham  Co.  v. 
Avery,  83  N.  Y.  31,  38  Am.  Rep.  3S9 ;  Tindle 
Bouv.-35 


v.   Birkett,   171    N.  Y.   520,  64   X.   E.   210,  89 
Am.  St.  Rep.  822,  reversing  57  App.  Di\ 
07  N.  Y.  Supp.  mi?;  E   ton,  Cole  &  Burnham 
Co.   v.   Avery,   18  Hun    (X.   Y.)     11;    in  such 
action    the    statements    falsely    made   I 
agency   are   admissible,   if   r<U<d  on   by   the 
vendee;  Furry  v.  O'Connor,  1  hid.  App.  ."7".. 
28  N.   E.  103;  or  if  approved   by   him  after 
being  written  out  by  the  agency,  tut  not  if 
not  known  to  the  vendor  until  after  1 1 1 - 
Robinson  v.  Levi,  81  Ala.  134,  1  South  :.:.  I : 
Mooney  v.  Davis.  75  Mich.  188,  42  N.  V. 
13  Am.  St.  Rep.  425.    A  contract  for  the  sale 
of  goods  to  the  person  making  such   repre- 
sentations, who  proves  to  be  insolvent  at  the 
time  of  making  them'and  of  the  sale,   may 
cinded  and  possession  of  the  goods  re- 
covered;  Mooney  v.  Davis,  7."  Mich.   '■ 
X.  W.  802,  13  Am.  St.  Rep.  425;  Cook  v.  Ilar- 
rington,    :'>i    Mo.    App.    199;    Sinchman    v. 
3,  85  Mich.  r..°,.r),  48  N.  W  lauer 

v.  Hay,  oi  la.  667,  17  X.  \V.  98;  Gainesville 
Xaf.  Bank  v.  Bamberger,  77  Tex.  48,  1.".  S.  W. 
959,  19  Am.  St.  Rep.  738;  In  re  Epstein,  109 
Fed.  874;  it  is  enoucrh  if  he  had  not  reason- 
able grounds  for  believing  them  to  be  true; 
In  re  Roalswick,  110  Fed.  639;  but  where 
there  were  no  representations  other  than 
those  obtained  by  the  agency  from  the  seller, 
a  fraudulent  intent  on  the  part  of  the  ven- 
dee to  use  the  agency  as  an  lustrum* 
fraud  must  be  clearly  shown;  Victor  v.  Hen- 
lien,  33  Hun  (N.  Y.)  549;  Dieckerlmff  v. 
Brown  (Md.)  2  Atl.  723;  Macullar  v.  Mc- 
Kinley,  Of)  X.  Y.  353,  2  X.  E.  9.  The  vendor 
may  show  that  he  refused  to  make  the  sale 
until  he  received  the  report  of  the  agency, 
and  the  agent  may  show  his  business  meth- 
ods; Hinchman  v.  Weeks,  85  Mich.  5! 
X.  W.  790.  The  right  to  rescind  the  sale  is 
not  affected  by  a  refusal  of  the  vendee  to 
give  further  statements  of  his  condition,  as 
the  original  one  is  presumed  to  continue  if 
not  recalled  by  the  agency;  Claflin  v.  Flack, 
13  N.  Y.  Supp.  209;  but  if  the  vendee  has 
made  subsequent  reports  showing  an  impair- 
ed responsibility,  the  vendor  must  take  all 
the  reports  into  consideration,  and  not  only 
on  the  original  one;  but  the  vendee  is  not 
required  to  make  subsequent  reports  unless 
he  actually  becomes  insolvent  or  knows  that 
he  will  soon  be;  Cortland  Mfg.  Co.  v.  Piatt, 
83   Mich.   419,  47    X.    W.  >rts    made 

six  weeks  before  the  sale  may  be  relied  on; 
20  Mo.  App.  173;  but  not  those  made  from 
five  to  seven  months  before;  Zucker  v.  Kar- 
peles,  SS  Mich.  413,  no  x.  W.  ::7.: ;  Macullar 
v.  MeKinley.  99  X.  Y.  853,  2  X.  E.  9.  A 
financial  statement  to  a  commercial  :;. 
is  a  continuing  representation  for  a  r 
able  time  that  the  facts  therein  stated  are 
true;   In  re  Kyte,  174  Fed.  867. 

Hcno  affected  by  the  statute  of  frauds. 
With  respect  to  the  liability  of  the  agency 
for  representations  not  made  in  writing  when 
the  liability  was  contested,  on  the  ground 
that  the  contract  was  within  the  statute  of 


COMMERCIAL  AGENCY 


546 


COMMERCIAL  PAPER 


frauds,  there  is  not  a  satisfactory  result  to 
be  found  in  decisions;  but  it  has  been  held 
that  the  action  was  upon  the  original  con- 
tract with  the  customer,  which  was  by  no 
statute  required  to  be  written ;  U.  C.  39  Q. 
B.  551;  (reversed  on  other  points  and  doubt- 
ed on  this;  1  Ont.  App.  153;)  and  also  that 
the  action  was  sustainable  on  the  original 
contract  to  furnish  accurate  statements,  in 
response  to  inquiry  respecting  any  persons ; 
Sprague  v.  Dun,  12  Phila.   (Pa.)   310. 

No  remedy  in  equity  against  publication. 
An  injunction  will  not  be  granted  to  restrain 
the  agency  from  the  publication  of  matter 
injurious  to  the  standing  of  the  plaintiff, 
there  being  no  jurisdiction  in  equity  unless 
there  is  a  breach  of  trustor  or  contract  in- 
volved ;  Raymond  v.  Russell,  143  Mass.  295, 
9  N.  E.  544,  58  Am.  Rep.  137;  Burwell  v. 
Jackson,  9  N.  Y.  544. 

See  Libel;  Privileged  Communication. 

COMMERCIAL  COURT.  A  name  com- 
monly applied  in  English  practice  to  the 
trial  of  commercial  causes  in  London  and 
Liverpool  before  judges  of  the  High  Court. 
It  is  said  to  be  "a  mere  piece  of  convenience 
in  the  arrangement  of  business" ;  [1S95]  2 
Ch.  491. 

COMMERCIAL  LAW.  A  phrase  employed 
to  denote  those  branches  of  the  law  which 
relate  to  the  rights  of  property  and  rela- 
tions of  persons  engaged  in  commerce. 

This  term  denotes  more  than  the  phrase  "mari- 
time law,"  which  is  sometimes  used  as  synonymous, 
but  which  more  strictly  relates  to  shipping  and  its 
incidents. 

As  the  subjects  with  which  commercial  law,  eveD 
as  administered  in  any  one  country,  has 'to  deal  are 
dispersed  throughout  the  globe,  it  results  that  com- 
mercial law  is  less  local  and  more  cosmopolitan  in 
its  character  than  any  other  great  branch  of  mu- 
nicipal law  ;  and  the  peculiar  genius  of  the  common 
law,  in  adapting  recognized  principles  of  right  to 
new  and  ever-varying  combinations  of  facts,  has 
here  found  a  field  where  its  excellence  has  been 
most  clearly  shown.  The  various  systems  of  com- 
mercial law  have  been  well  contrasted  by  Leone 
Levi  in  his  collection  entitled  "Commercial  Law, 
its  Principles  and  Administration,  or  the  Mercan- 
tile Law  of  Great  Britain  compared  with  the  Codes 
and  Laws  of  Commerce  of  all  the  Important  Mer- 
cantile Countries  of  the  Modern  World,  and  with 
the  Institutes  of  Justinian ;"  London,  1850-52 ;  a 
work  of  great  interest  both  as  a  contribution  to  the 
project  of  a  mercantile  code  and  as  a  manual  of 
present  use. 

As  to  the  rule  in  the  federal  courts,  see 
Swift  v.  Tyson,  16  Pet.  (U.  S.)  1,  10  L.  Ed. 
865;  Carpenter  v.  Ins.  Co.,  16  Pet.  (U.  S.) 
511,  10  L  Ed.  1044;  Burgess  v.  Seligman, 
107  U.  S.  33,  2  Sup.  Ct.  10,  27  L.  Ed.  359, 
where  Bradley,  J.,  says,  "Wbere  the  law  has 
not  been  settled,  it  is  the  right  and  duty  of 
the  federal  courts  to  exercise  their  own 
judgment,  as  they  also  always  do  in  refer- 
ence to  the  doctrines  of  commercial  law." 
See  United  States  Couets. 

COMMERCIAL  PAPER.  Negotiable  pa- 
per given  in  due  course  of  business,  whether 
the  element  of  negotiability  be  given  it  by 
the  law  merchant  or  by  statute.    In  re  Sykes, 


5  Biss.  113,  Fed.  Cas.  No.  13,708.  See  Nego- 
tiable Instruments. 

COMMERCIAL  TRAVELLER.  A  travel- 
ling salesman  who  simply  exhibits  samples 
of  goods  kept  for  sale  by  his  principal,  and 
takes  orders  from  purchasers  for  such  goods, 
which  goods  are  afterwards  to  be  delivered 
by  the  principal  to  the  purchasers,  and  pay- 
ment for  the  goods  is  to  be  made  by  the  pur- 
chaser to  the  principal  on  such  delivery. 
City  of  Kansas  v.  Collins,  34  Kan.  436,  8 
Pac.  865;  State  v.  Miller,  93  N.  C.  511,  53 
Am.  Rep.  469.  An  order  solicited  by  and 
given  to  such  salesman  does  not  constitute 
a  sale,  either  absolute  or  conditional,  of  the 
goods  ordered,  but  is  a  mere  proposal,  to  be 
accepted  or  not,  as  the  principal  may  see  fit ; 
McKindly  v.  Dunham,  55  Wis.  515,  13  N.  W. 
485,  42  Am.  Rep.  740;  Clark  v.  Smith,  88 
111.  298. 

An  agent  who  sells  by  sample  and  on  cred- 
it, and  is  not  intrusted  with  the  possession 
of  the  goods  to  be  sold,  has  no  implied  au- 
thority to  receive  payment,  and  payment  to 
him  will  not  discharge  the  purchaser;  But- 
ler v.  Dorman,  68  Mo.  302,  30  Am.  Rep.  795 ; 
Law  v.  Stokes,  32  N.  J.  D.  250,  90  Am.  Dec. 
655 ;  Seiple  v.  Irwin,  30  Pa.  513 ;  Kornemann 
v.  Monaghan,  24  Mich.  36. 

Even  if  he  has  power  to  collect  accounts, 
receiving  checks  payable  to  his  principal,  no 
authority  to  endorse  such  checks  will  be  im- 
plied; Jackson  v.  Bank,  92  Tenn.  154,  20  S. 
W.  802,  18  L.  R.  A.  663,  36  Am.  St.  Rep.  81 ; 
nor  authority  to  bind  his  principals  on  a 
contract  for  advertising  his  business  in  a 
newspaper;  Tarpey  v.  Bemheimer,  16  N.  Y. 
Supp.  870. 

.  It  has  been  held  that  possession  of  the 
goods  by  a  commercial  traveller  who  sells 
them  is  evidence  of  authority  to  collect  there- 
for; Bailey  v.  Pardridge,  134  111.  188,  27  N. 
E.  89;  John  Hutchinson  Mfg.  Co.  v.  Henry, 
44  Mo.  App.  263;  Cross  v.  Haskins,  13  VL 
536. 

Where  a  drummer  sold  his  samples  and 
converted  the  proceeds,  it  was  held,  in  the 
absence  of  evidence  of  the  custom  or  usage 
of  tbe  drummer's  disposition  of  samples, 
that  the  principals  were  not  bound  by  the 
sale;  Kohn  v.  Washer,  64  Tex.  131,  53  Am. 
Rep.  745 ;  but  where  such  sale  is  ratified, 
the  payment  to  the  agent  is  ratified  also ; 
Bailey  v.  Pardridge,  134  111.  188,  27  N.  E. 
89. 

The  drummer  may  hire  a  carriage  upon 
the  credit  of  his  principals  if  necessary ; 
Bentley  v.  Doggett,  51  Wis.  224,  8  N.  W.  155, 
37  Am.  Rep.  827;  Huntley  v.  Mathias,  90  N. 
C.  101,  47  Am.  Rep.  516,  where  the  princi- 
pals were  held  liable  for  the  drummer's  tort 
in  overdriving  a  horse. 

C0MMISSARIA  LEX.  A  principle  of  the 
Roman  law  relative  to  the  forfeiture  of  con- 
tracts.    It  is  not  unusual  to  restrict  a  sale 


COMMISSARIA  LEX 


547 


COMMISSION  GOVERNM  1 


upon  credit,  by  a  clause  in  the  agreement 
that  if  the  buyer  should  fail  to  make  due 
payment  the  seller  might  rescind  the  sale. 
In  the  meantime,  however,  the  property  was 
the  buyer's  and  at  his  risk.  A  debtor  and 
his  pledgee  might  also  agree  that  if  the  debt- 
or did  not  pay  at  the  day  fixed,  the  pledge 
should  become  the  absolute  property  of  the 
creditor.  2  Kent  583.  This  was  abolished 
by  a  law  of  Constantine.     Cod.  8.  35.  •".. 

COMMISSARY.  An  officer  whose  principal 
duties  are  to  supply  an  army,  or  some  por- 
tion thereof,  with  provisions. 

The  subsistence  department  of  the  army  shall  con- 
sist of  one  commissary-general  of  subsistence,  with 
the  rank  of  brigadier-general;  two  assistant  com- 
missaries-general of  subsistence,  with  the  rank  of 
lieutenant-colonel  of  cavalry ;  eight  commissaries 
of  subsistence,  with  the  rank  of  major  of  cavalry; 
and  sixteen  commissaries  of  subsistence,  with  the 
rank  of  captain  of  cavalry.  U.  S.  Rev.  Stat.  §  1110. 
Their   duties  are  defined  In   the   following  sections. 

An  official  to  whom  the  bishop  of  a  diocese 
sometimes  delegated  jurisdiction  in  his  Con- 
sistory Court  over  certain  parts  of  the  dio- 
cese.   1  Holdsw.  Hist.  L.  3G9. 

COMMISSION  (Lat.  commissio;  from  com- 
mit t  ere,  to  intrust  to). 

An  undertaking  without  reward  to  do 
something  for  another,  with  respect  to  a 
thing  bailed.     Puitkerforth,  Inst.  103. 

A  body  of  persons  authorized  to  act  in  a 
certain  matter.     5  B.  &  C.  S50. 

The  act  of  perpetrating  an  offence. 

An  instrument  issued  by  a  court  of  justice, 
or  other  competent  tribunal,  to  authorize  a 
person  to  take  depositions,  or  do  any  other 
act  by  authority  of  such  court  or  tribunal, 
is  called  a  commission. 

Letters-patent  granted  by  the  government, 
under  the  public  seal,  to  a  person  appointed 
to  an  office,  giving  him  authority  to  perform 
the  duties  of  his  office.  The  commission  is 
not  the  appointment,  but  only  evidence  of 
it,  and,  as  soon  as  it  is  signed  and  sealed, 
vests  the  office  in  the  appointee.  Marbury  v. 
Madison,  1  Cra.  (U.  S.)  137,  2  L.  Ed.  60 ;  State 
v.  Billy,  2  N.  &  McC.  (S.  C.)  357.  See  Talbot 
v.  Simpson,  1  Pet.  C.  C.  191,  Fed.  Cas.  No. 
13,730;  U.  S.  v.  Vinton,  2  Sumn.  299,  Fed. 
Cas.  No.  16,624;  Scofield  v.  Lounsbury,  8 
Conn.  109.  In  this  sense  it  is  much  used  in 
Great  Britain ;  the  great  seal  is  sometimes 
placed  in  commission  by  the  crown  in  the 
hands  of  one  or  more  persons;  judges  assign- 
ed to  certain  duties  are  appointed  thereto 
by  commission;  the  royal  assent  to  bills  in 
parliament  is  usually  given  by  commissioners 
appointed  for  the  purpose. 

In  Common  Law.  A  sum  allowed,  usually 
a  certain  per  cent,  upon  the  value  of  the 
property  involved,  as  compensation  to  a  serv- 
ant or  agent  for  services  performed.  See 
Commissions. 

COMMISSION  GOVERNMENT.  A  method 
of  municipal  government  in  which  the  legis- 


lative power  is  in  the  hands  of  a  few  per- 
sons. 

Constitutional  provisions  dividing  govern- 
ment into  legislative,  executive  and  judicial 
departments  are  held  to  apply  to  state  and 
not  to  local  governments,  and  not  to  a: 
law  providing  a  commission  plan  of  <  ill . 
ernment;    State  v.  Ure,  91   Neb.  31,   I 
\Y.  i'L'4.     The  legislature  has  the  power  to 
allow  the  electors  of  all  cities  in  the 
class  to  adopt  or  reject  the  commission  plan 
of  government;    id.;   such  method  is  c 
tutional;  State  v.  City  of  Mankato,  117  Minn. 
458,  136  N.  W.  264,  41  L.  It.  A.  (X.  S.)  111. 

An  act  authorizing  certain  cities  to  adopt 
this  form  of  government  only  becomes  ef- 
fective in  cities  which  may  adopt  it  by  vote. 
and  does  not  violate  state  constitutions 
hibiting  special  or  local  legislation  in  mat- 
ters affecting  the  incorporation  of  cities,  etc. ; 
People  v.  Edmands,  252  111.  10S,  96  X.  E.  914. 

An  act  authorizing  the  government  of  cer- 
tain cities  by  commission  at  their  option  is 
not  violative  of  the  constitution  as  an  unwar- 
ranted delegation  of  legislative  power ;  State 
v.  Tausick,  64  Wash.  69,  116  Pac.  651,  35  L. 
R.  A.  (N.  S.)  802;  Eckerson  v.  Des  Moines, 
137  la.  452,  115  N.  W.  177;  City  of  Jack- 
son v.  State  (Miss.)  59  South.  S73.  To  the 
same  effect,  Bryan  v.  Yoss,  143  Ky.  422,  136 
S.  W.  884. 

COMMISSION  MERCHANT.  As  this  term 
is  used,  it  is  synonymous  with  the  legal 
"factor,"  and  means  one  who  receives  goods, 
chattels,  or  merchandise,  for  sale,  exchange, 
or  other  disposition,  and  who  is  to  receive  a 
compensation  for  his  services,  to  be  paid  by 
the  owner  or  derived  from  the  sale  of  the 
goods.  Perkins  v.  State,  50  Ala.  154.  See 
Agency;  Factobs. 

COMMISSION  OF  ASSIZE.  In  English 
Practice.  A  commission  which  formerly  is- 
sued from  the  king,  appointing  certain  per- 
sons as  commissioners  or  judges  of  assize 
to  hold  the  assizes  In  association  with  dis- 
creet knights  during  those  years  in  which 
the  justices  in  eyre  did  not  come. 

Other  commissions  were  added  to  this, 
which  has  finally  fallen  into  complete  dis- 
use.   See  Courts  of  Assize  and  Nisi  | 

COMMISSION  OF  LUNACY.  A  writ  is- 
sued out  of  chancery,  or  such  court  as  may 
have  jurisdiction  of  the  cas.,,  directed  to  a 
proper  officer,  to  inquire  whether  a  ] 
named  therein  is  a  lunatic  or  not.  1  Bou- 
vier,  Inst.  n.  3S2. 

COMMISSION  OF  REBELLION.  In  Eng- 
lish Law.  A  writ  formerly  issued  out  of 
chancery  to  compel  an  attendance.  It  was 
abolished  by  the  order  of  August  S,  1841. 

COMMISSIONED  OFFICER.  A  person  In 
the  United  States  military  service  of  or  above 
the  rank  of  second  lieutenant  Davis,  MIL 
L.  26. 


COMMISSIONER 


548 


COMMISSIONERS  OF  HIGHWAYS 


COMMISSIONER.     See   Commission. 

COMMISSIONER  OF  PATENTS.  The  ti- 
tle given  by  law  to  the  head  of  the  patent 
office.  Prior  to  1836  the  business  of  that  of- 
fice was  under  the  immediate  charge  of  a 
clerk  in  the  state  department,  who  was  gen- 
erally known  as  the  superintendent  of  the 
patent  office.  He  performed  substantially 
the  same  duties  which  afterwards  devolved 
upon  the  commissioner,  except  that  he  was 
not  required  to  decide  upon  the  patentability 
of  any  contrivance  for  which  a  patent  was 
sought,  inasmuch  as  the  system  of  examina- 
tions had  not  then  been  introduced  and  the 
applicant  was  permitted  to  take  out  his  pat- 
ent at  his  own  risk. 

Under  the  existing  acts  he  hears  appeals 
from  the  examiners  in  chief,  and  an  appeal 
lies  from  his  decision  in  interference  cases 
to  the  Court  of  Appeals.  Act  of  Feb.  9,  1893. 
See  Patents  ;  Patent  Office,  Examiners  in. 

COMMISSIONER,   UNITED   STATES.     An 

officer  appointed  by  the  United  States  Dis- 
trict Court  in  each  district,  in  place  of  Com- 
missioners of  the  Circuit  Court.  The  court 
may  appoint  such  number  and  in  such  dis- 
tricts as  it  deems  best.  They  hold  for  four 
years,  subject  to  removal  by  the  court  No 
person  can  be  both  a  District  Court  clerk  (or 
deputy)  and  commissioner  without  the  ap- 
proval of  the  Attorney-General.  Act  of  May 
28,  1896.  A  commissioner  in  proceedings  un- 
der R,  S.  §  1014,  does  not  hold  a  "court" ; 
Todd  v.  U.  S.,  158  U.  S.  278,  15  Sup.  Ct.  889, 
39  L.  Ed.  982 ;  and  he  is  in  no  constitutional 
sense  a  judge;  Rice  v.  Ames,  ISO  U.  S.  371, 
378,  21  Sup.  Ct.  406,  45  L.  Ed.  577.  He  is  a 
mere  ministerial  officer,  who  while  acting  as 
a  committing  magistrate  in  such  proceedings 
exercises  duties  which  are  judicial  in  char- 
acter ;  U.  S.  v.  Jones,  134  U.  S.  483,  10  Sup. 
Ct.  615,  33  L.  Ed.  1007 ;  U.  S.  v.  Ewing,  140 
U.  S.  142,  11  Sup.  Ct.  743,  35  D.  Ed.  388; 
but  he  cannot  punish  for  contempt  commit- 
ted in  his  presence;  Ex  parte  Perkins,  29 
Fed.  900 ;    In  re  Mason,  43  Fed.  510. 

COMMISSIONER  OF  WOODS  AND  FOR- 
ESTS. An  officer  created  by  act  of  parlia- 
ment of  1817,  tQ  whom  was  transferred  the 
jurisdiction  of  the  chief  justices  of  the  for- 
est,   Inderwick,  The  King's  Peace. 

COMMISSIONERS  OF  BAIL.  Officers  ap- 
pointed by  some  courts  to  take  recognizances 
of  bail  in  civil  cases. 

COMMISSIONERS  OF  DEEDS.  Officers 
appointed  by  the  governors  of  many  of  the 
states,  resident  in  another  state  or  territory, 
empowered  to  take  acknowledgments,  admin- 
ister oaths,  etc.,  to  be  used  in  the  state  from 
which  they  derive  their  appointment.  They 
have,  for  the  most  part,  all  the  powers  of  a 
notary  public,  except  that  of  protesting  nego- 
tiable paper.    Rap.  &  Lawr.  Law  Diet. 

COMMISSIONERS    OF    HIGHWAYS.     Of- 


ficers having  certain  powers  and  duties  con- 
cerning the  highway,  within  the  limits  of 
their  jurisdiction.  They  are  usually  three 
in  number.  In  some  of  the  states  they  are 
county  officers,  and  their  jurisdiction  is  co- 
extensive with  the  county.  In  others,  as  in 
New  York,  Michigan,  Illinois,  and  Wisconsin, 
they  are  town  or  township  officers.  They 
have  power  to  establish,  alter,  and  vacate 
highways ;  and  it  is  their  duty  to  cause  them 
to  be  kept  in  repair. 

COMMISSIONERS  OF  SEWERS.  A  court 
of  record  of  special  jurisdiction  in  England. 

It  was  a  temporary  tribunal,  erected  by 
virtue  of  a  commission  under  the  great  seal, 
which  formerly  was  granted  pro  re  nata  at 
the  pleasure  of  the  crown,  but  afterwards  at 
the  discretion  and  nomination  of  the  lord 
chancellor,  lord  treasurer,  and  chief  justices, 
pursuant  to  the  statute  of  sewers.  23  Hen. 
VIII.  c.  5. 

Its  jurisdiction  was  to  overlook  the  re- 
pairs of  the  banks  and  walls  of  the  sea-coast 
and  navigable  rivers  and  the  streams  com- 
municating therewith,  and  was  confined  to 
such  county  or  particular  district  as  the  com- 
mission should  expressly  name.  The  com- 
missioners might  take  order  for  the  removal 
of  any  annoyances  or  the  safeguard  and 
conservation  of  the  sewers  within  their  com- 
mission, either  according  to  the  laws  and 
customs  of  Romney  Marsh,  or  otherwise,  at 
their  own  discretion.  They  were  also  to  as- 
sess and  collect  taxes  for  such  repairs  and 
for  the  expenses  of  the  commission.  They 
might  proceed  with  the  aid  of  a  jury  or  up- 
on their  own  view ;  3  Bla.  Com.  73 ;  Crabb, 
Hist.  E.  L.  469. 

COMMISSIONS.  Compensation  allowed  to 
agents,  factors,  executors,  trustees,  receiv- 
ers, and  other  persons  who  manage  the  af- 
fairs of  others,  in  recompense  for  their 
services. 

The  right  to  such  allowance  may  either 
be  the  subject  of  a  special  contract,  may  rest 
upon  an  implied  contract  to  pay  quantum 
meruit,  or  may  depend  upon  statutory  pro- 
visions;   7  C.  &  P.  584;    9  id.  559. 

The  right  does  not  generally  accrue  till 
the  completion  of  the  services ;  4  C.  &  P. 
289;  7  Bingh.  99;  Sibbald  v.  Bethlehem  Iron 
Co.,  83  N.  Y.  378,  38  Am.  Rep.  441;  and 
see  10  B.  &  C.  438;  and  does  not  then  exist 
unless  proper  care,  skill,  and  perfect  fidelity 
have  been  employed;  3  Campb.  451;  9  Bingh. 
287;  Dodge  v.  Tileston,  12  Pick.  (Mass.) 
328;  McDonald  v.  Maltz,  94  Mich.  172,  53 
N.  W.  1058,  34  Am.  St.  Rep.  331;  Smith  v. 
Tripis,  2  Tex.  Civ.  App.  267,  21  S.  W.  722; 
and  the  services  must  not  have  been  illegal 
nor  against  public  policy;  3  B.  &  C.  639; 
Armstrong  v.  Toler,  11  Wheat  (U.  S.)  258, 
6  L.  Ed.  468. 

Brokers.  The  broker  is  entitled  to  a  fair 
and  reasonable  opportunity  to  perform   his 


COMMISSIONS 


549 


COMMISSIONS 


obligations,  subject  to  the  right  of  the  seller 
to  sell  independently,  but,  that  having  been 
granted  to  him,  the  right  of  the  principal  to 
terminate  his  authority  is  unrestricted,  ex- 
cept only  that  he  may  not  do  it  in  bad  faith, 
and  as  a  mere  device  to  escape  commis- 
sions; Sibbald  v.  Iron  Co.,  83  N.  Y.  378,  38 
Am.  Rep.  441;  Crowe  v.  Triekey,  204  U.  S. 
228,  27  Sup.  Ct.  275,  51  L.  Ed.  454  (where 
the  death  of  the  principal  was  held  to  ter- 
minate the  broker's  authority  though  he  had 
found  the  purchaser,  and  the  sale  was  after- 
wards completed  by  the  administrator) ;  Fulty 
v.  Wimer,  :;i  Kan  576,  9  Pac.  316;  Wilson 
v.  Sturgis,  71  Cal.  226,  L6  Pac.  772;  Ropes  v. 
Rosenf eld's  Sons,  145  Cal.  G79,  79  Pac.  354; 
that  the  owner  sold  the  property  after  the 
expiration  of  the  contract  period  and  that 
such  sale  was,  to  some  extent,  aided  by  the 
broker's  efforts,  does  not  give  the  broker  a 
right  to  commissions;  Donovan  v.  Weed,  182 
N.  Y.  43,  74  N.  E.  563;  Kelly  v.  Marshall, 
172  Pa.  396,  33  Atl.  GOO. 

Where  the  purchaser's  refusal  to  complete 
2ie  transaction  is  due  to  the  fact  that  the 
seller's  title  is  defective,  the  broker  may  nev- 
ertheless recover  his  commissions ;  Ham- 
mond v.  Crawford,  6G  Fed.  425,  14  C.  C.  A. 
100;  Phelps  v.  Prusch,  83  Cal.  626,  Z\  Pac. 
1111;  Davis  v.  Laurence,  52  Kan.  383,  34 
Pac.  1051;  Stange  v.  Gosse,  110  Mich.  153, 
G7  N.  W.  1108 ;  Yoder  v.  Randol,  1G  Okl.  30S, 
83  Pac.  537,  3  L.  R.  A.  (N.  S.)  576;  Gilder 
v.  Davis,  137  N.  Y.  504,  33  N.  E.  599,  20  L. 
R.  A.  39S;  Parker  v.  Walker,  86  Tenn.  566, 
8  S.  W.  391 ;  Birmingham  Land  &  Loan  Co. 
v.  Thompson,  86  Ala.  146,  5  South.  473;  so 
he  may  recover  where  he  has  found  a  pur- 
chaser ready  and  willing  to  complete  the 
contract,  though  the  sale  fails  because  the 
vendor  has  been  mistaken  in  the  identity  of 
the  lands  he  offered  for  sale;  Arnold  v.  Lank, 
126  Wis.  362,  105  N.  W.  82S,  3  L.  R.  A.  (N. 
S.)  5S0. 

Financial  inability  of  the  purchaser  to  per- 
form his  contract  to  purchase  real  estate 
does  not  deprive  the  broker  of  his  commis- 
sions ;  Moore  v.  Irwin,  89  Ark.  2S9,  116  S.  W. 
662,  20  L.  R.  A.  (N.  S.)  1168,  131  Am.  St. 
Rep.  97 ;  the  broker's  contract  is  to  effect  a 
bargain,  and  if  he  produces  a  responsible 
customer,  ready  to  contract,  his  principal 
cannot  defeat  his  right  to  commissions  by 
capriciously  refusing  to  make  the  contract. 
The  proof  of  the  responsibility  of  the  in- 
tending purchaser  is  required,  not  because 
the  broker  contracts  to  guarantee  responsi- 
bility, but  to  show  that  the  failure  to  make 
the  contract  was  not  the  fault  of  the  broker; 
Alt  v.  Doscher,  1S6  N.  Y.  566,  79  N.  E.  1100 ; 
Leuschner  v.  Patrick  (Tex.)  103  S.  W.  664; 
Wray  v.  Carpenter,  16  Colo.  271,  27  Pac.  248, 
25  Am.  St.  Rep.  265;  Parker  v.  Estabrook, 
68  N.  H.  349,  44  Atl.  4S 4 ;  Stewart  v.  Fow- 
ler, 53  Kan.  537,  36  Pac.  1002;  Jenkins  v. 
Hollingsworth,  83  111.  App.  139. 

On  the  contrary,  it  is  held  in  some  cases 


that,  to  entitle  a  broker  to  his  commissions. 
he  must  produce  a  party  capable  of  becom- 
ing,  and   who   ultimately  .    the  pur- 
chaser;   that  it  is  not  sufficient  that  a  con- 
tract of  sale  is  executed  betw 
and  a  portion  of  the  price  paid,  where  there 
is  a  forfeiture  of  the  contract  of  the 
financial  inability  of  the  purcha  • 
v.  Turnbull,  105  Md.  135,  6G  Atl.  13,  8  I*  1 
(X.  S.)  824,  11  Ann.  Cas.  783.     Where  a  bro- 
ker procures  a  purchaser  of  street  railway 
bonds,  who  refuses  to  complete  his  contract 
because  of  their  invalidity,  lie  may   n< 
cover  his  commissions,  if  he  knew  such  cus- 
tomer never  intended  to   take  and    pay   for 
them,   but   meant  to   negotiate  their  sale  to 
other  parties  for  a  higher  price;   Berg  v.  R. 
Co.  (Tex.)  49  S.  W.  921. 

Where  he  knows,  or  has  reason  to  believe, 
that  his  purchaser  is  unable  to  complete  his 
contract,  the  broker  cannot  recover  commis- 
sions; Burnham  v.  Fpton,  174  Mass.  40S,  54 
N.  E.  873;  Butler  v.  Baker,  17  R.  I.  582,  23 
Atl.  1019,  33  Am.  St.  Rep.  897 ;  Boysen  v. 
Frink,  80  Ark.  258,  96  S.  W.  1056;  Little  v. 
Herzinger,  34  Utah,  337,  97  Pac,  639.  Even 
though  the  broker  did  not  have  the  exclusive 
agency,  if  he  were  in  fact  the  procuring  cause 
of  the  purchase,  he  is  entitled  to  commis- 
sions, though  a  sale  was  made  by  the  owner 
in  ignorance  of  the  broker's  instrumentality 
in  procuring  the  purchaser;  Kiernan  v. 
Bloom,  91  App.  Div.  429,  86  N.  Y.  Supp.  899; 
Southwick  v.  Swavienski,  114  App.  Div.  681, 
99  N.  Y.  Supp.  1079:  Craig  v.  Wead.  58  Neb. 
782,  79  N.  W.  718;  Tyler  v.  Parr,  52  Mo. 
249;  Adams  v.  Decker,  34  111.  App.  17:  Craves 
v.  Bains,  78  Tex.  92.  14  S.  W.  256;  but  that 
under  such  circumstances  no  right  to  com- 
missions is  acquired  is  held  in  Quist  v.  Good 
fellow,  99  Minn.  509,  110  N.  W.  65,  8  L.  EL  k. 
(N.  S.)  153,  9  Ann.  Cas.  431;  Anderson  v. 
Smythe,  1  Colo.  App.  253,  28  Pac.  478. 

A  broker  is  entitled  to  commission  if  up 
to    a    certain    time   he   was   the    middleman, 
though    the    contract    was    afterwards 
pleted  without  his  instrumentality;    8  C.   ft 
P.  1  ;   [1907]  2  Ir.  R.  K.  B.  212. 

The  amount  of  such  commissions  is  gener- 
ally a  percentage  on  the  sums  paid  out  or 
received.  When  there  is  a  usage  of  trade  at 
the  particular  place  or  in  the  particular 
business,  the  amount  of  commissions  allowed 
to  auctioneers,  brokers,  and  factors  is  regu- 
lated by  such  OSage,  in  t>.  •  of  special 
agreement;  10  B.  ft  C.  438;  Story,  Ag  j  326; 
where  there  is  no  agreement  and  no  custom. 
the  jury  may  fix  the  commission  on  a  quan- 
tum meruit;  o  C.  ft  P.  620;  Mangum  v.  Ball, 
i:;  Miss.  288,  5  Am  Rep.  -!vs 

The  amount  which  executors,  etc..  are  to 
receive  is  frequently  fixed  by  statute,  sub- 
ject to  modification  in  special  cases  by  the 
proper  tribunal;  Van  Buren  v.  Ins.  Co.,  12 
Barb.  (N.  Y.)  071.  In  the  absence  of  statu- 
tory provision,  commissions  cannot  be  al- 
lowed to  executors  for  services  in  partition- 


COMMISSIONS 


550 


COMMITMENT 


ing  real  estate,  and  allotting  and  transfer- 
ring the  same;  Bruce  v.  Lorillard,  62  Hun 
416,  16  N.  Y.  Supp.  900.  Where  the  executor 
has  failed  to  keep  accounts  and  to  make  in- 
vestments according  to  the  directions  in  the 
will,  and  by  his  negligence  has  involved  the 
estate  in  litigation,  he  will  not  be  allowed 
commissions ;  Brewster  v.  Demarest,  48  N. 
J.  Eq.  559,  23  Atl.  271.  The  entire  commis- 
sions are  not  properly  exigible  before  the 
administration  is  terminated;  Succession  of 
Sparrow,  40  La.  Ann.  484,  4  South.  513.  An 
executor  is  not  entitled  to  commissions  on 
his  own  indebtedness  to  the  estate ;  In  re 
Hoffer's  Estate,  156  Pa.  473,  27  Atl.  11.  In 
England,  no  commissions  are  allowed  to  ex- 
ecutors or  trustees ;  1  Vern.  Ch.  316 ;  4  Ves. 
Ch.  72,  n. ;  9  CI.  &  F.  Ill ;  even  where  he 
carries  on  the  testator's  business  by  his  di- 
rection ;  6  Beav.  371.  See  the  cases  in  all 
the  states  in  2  Perry,  Trusts  §  918,  note. 

In  case  the  factor  guaranties  the  payment 
of  the  debt,  he  is  entitled  to  a  larger  com- 
pensation (called  a  del  credere  commission) 
than  is  ordinarily  given  for  the  transaction 
of  similar  business  where  no  such  guaranty 
is  made;  Paley,  Ag.  88. 

See  Executors  and  Administrators  ;  Prin- 
cipal and  Agent;  Real  Estate  Brokers. 

COMMISSIONS  FOR  REGULATION 
OF  CORPORATIONS.  See  Public  Service 
Corporations. 

COMMITMENT.  The  warrant  or  order  by 
which  a  court  or  magistrate  directs  a  minis- 
terial officer  to  take  a  person  to  prison. 

The  act  of  sending  a  person  to  prison  by 
means  of  such  a  warrant  or  order.  Skinner 
v.  White,  9  N.  H.  204. 

A  commitment  should  be  in  writing  under 
the  hand  and  seal  of  the  magistrate,  and 
should  show  his  authority  and  the  time  and 
place  of  making  it;  Lough  v.  Millard,  2  II. 
I.  436;  Somervell  v.  Hunt,  3  Harr.  &  McH. 
(Md.)  113;  State  v.  Caswell,  T.  U.  P.  Charlt. 
(Ga.)  280;  In  re  Burford,  3  Cra.  (U.  S.) 
448,  2  L.  Ed.  495.  It  must  be  made  in  the 
name  of  the  United  States  or  of  the  com- 
monwealth or  people,  as  required  by  the  con- 
stitution of  the  United  States  or  of  the  sev- 
eral states. 

It  should  be  directed  to  the  keeper  of  the 
prison,  and  not  generally  to  carry  the  party 
to  prison ;  2  Stra.  934 ;  1  Ld.  Raym.  424.  It 
should  describe  the  prisoner  by  his  name 
and  surname,  or  the  name  he  gives  as  his. 

It  ought  to  state  that  the  party  has  been 
charged  on  oath ;  People  v.  Miller,  14  Johns. 
(N.  Y.)  371;  In  re  Burford,  3  Cra.  (U.  S.) 
448,  2  L.  Ed.  495 ;  but  see  Com.  v.  Jackson,  2 
Va.  Cas.  504;  State  v.  Killet,  2  Bail.  (S.  C.) 
290;  and  should  mention  with  convenient 
certainty  the  particular  crime  charged  against 
the  prisoner;  In  re  Burford,  3  Cra.  (U.  S.) 
448,  2  L.  Ed.  495 ;  11  St.  Tr.  304,  318 ;  Day  v. 
Day,  4  Md.  262;  Young  v.  Com.,  1  Rob.  (Va.) 
744 ;  Ex  parte  Rohe,  5  Ark.  104 ;  In  re  How- 


ard, 26  Vt.  205;  but  a  defect  in  describing 
the  offence  is  immaterial  if  it  is  sufficiently 
described  in  the  order  endorsed  on  the  depo- 
sition ;  Ex  parte  Estrado,  88  Cal.  310,  26  Pac. 
209.  It 'should  point  out  the  place  of  impris- 
onment, and  not  merely  direct  that  the  party 
be  taken  to  prison ;  2  Stra.  934 ;  1  Ld.  Raym. 
424. 

It  may  be  for  further  examination,  or 
final.  If  final,  the  command  to  the  keeper 
of  the  prison  should  be  to  keep  the  prisoner 
"until  he  shall  be  discharged  by  due  course 
of  law,"  when  the  offence  is  not  .bailable; 
see  Washburn  v.  Belknap,  3  Conn*  502;  29 
E.  L.  &  E.  134 ;  when  it  is  bailable,  the  gaol- 
er should  be  directed  to  keep  the  prisoner  in 
his  "said  custody  for  want  of  sureties,  or 
until  he  shall  be  discharged  by  due  course 
of  law."  When  the  commitment  is  not  final, 
it  is  usual  to  commit  the  prisoner  "for  fur- 
ther hearing." 

The  word  commit  in  a  statute  has  a  tech- 
nical meaning,  and  a  warrant  which  does 
not  direct  an  officer  to  commit  a  party  to 
prison  but  only  to  receive  him  into  custody 
and  safely  keep  him  for  further  examina- 
tion, is  not  a  commitment ;  Gilbert  v.  U.  S., 
23  Ct.  CI.  218. 

COMMITTEE.  One  or  more  members  of 
a  legislative  body,  to  whom  is  specially  re- 
ferred some  matter  before  that  body,  in  or- 
der that  they  may  examine  into  it  and  re- 
port to  the  body  which  delegated  this  au- 
thority to  them. 

The  minority  of  a  committee  to  which  a 
corporate  power  has  been  delegated,  cannot 
bind  the  majority,  or  do  any  valid  act,  in 
the  absence  of  any  special  provision  other- 
wise; Brown  v.  District  of  Columbia,  127  U. 
S.  579,  8  Sup.  Ct.  1314,  32  L.  Ed.  262. 

A  guardian  appointed  to  take  charge  of 
the  person  or  estate  of  one  who  has  been 
found  to  be  non  compos  mentis. 

For  committee  of  the  person,  the  next  of 
kin  is  usually  selected ;  and,  in  case  of  the 
lunacy  of  a  husband  or  wife,  the  one  who 
is  of  sound  mind  is  entitled,  unless  under 
very  special  circumstances,  to  be  the  com- 
mittee of  the  other ;  Shelf.  Lun.  137,  140.  It 
is  the  duty  of  such  a  person  to  take  care 
of  the  lunatic. 

For  committee  of  the  estate,  the  heir  at 
law  is  favored.  Relations  are  preferred  to 
strangers ;  but  the  latter  may  be  appointed ; 
Shelf.  Lun.  144.  It  is  the  duty  of  such  com- 
mittee to  administer  the  estate  faithfully 
and  to  account  for  his  administration.  Ho 
cannot,  in  general,  make  contracts  in  rela- 
tion to  the  estate  of  the  lunatic,  or  bind  it, 
without  a  special  order  of  the  court  or  au- 
thority that  appointed  him. 

COMMITTING  MAGISTRATE.  See  Mag- 
istrate; Justice  of  the  Peace. 

COMMITTITUR  PIECE.  In  English  Law. 
An  instrument  in  writing,  on  paper  or  parch- 


COMMITTITUR  PIECE 


551 


CuMMuDITY 


ment,  which  charges  a  person  already  In 
prison,  In  execution  at  the  suit  of  the  person 
who  arrested  him. 

COMMIXTION.  In  Civil  Law.  A  term 
used  to  signify  the  act  by  which  goods  are 
mixed  together. 

The  matters  which  are  mixed  are  dry  or  liquid. 
In  the  commixtion  of  the  former,  the  matter  i 
its  substance  and  individuality;  in  the  latter,  the 
substance  no  longer  remains  distinct.  The  commix- 
tion of  liquid  is  called  corifusion  (q.  v.),  and  that  of 
solids  a  mixture.  Lev.  El4m.  du  Dr.  Rom.  §§  370, 
371;    Story,  LSailm.  §  40;    1  Bouvler,  Inst.  n.  506. 

COMMODATE.  In  Scotch  Law.  A  gratu- 
itous loan  for  use.  Erskine,  lust.  b.  3,  t.  1, 
§  20;  1  Bell,  Com.  225.  The  implied  con- 
tract of  the  borrower  is  to  return  the  thing 
borrowed  in  the  same  condition  as  received. 

Judge  Story  regrets  that  this  term  has  not  been 
adopted,  as  mandate  has  been  from  mandatum. 
Story,  Bailm.  §  221.  Ayliffe,  in  his  Pandects,  has 
gone  further  and  terms  the  bailor  the  comn 
and  the  bailee  the  commodatory,  thus  avoiding  those 
circumlocutions  which,  in  the  common  phraseology 
of  our  law,  have  become  almost  indispensable.  Ay- 
liffe, Pand.  b.  4,  t.  16,  p.  517.  Brown,  in  his  Civil 
Law,  vol.  1,  352,  calls  the  property  loaned  "commo- 
datcd  property." 

C0MM0DAT0.  In  Spanish  Law.  A  con- 
tract by  which  one  person  lends  gratuitously 
to  another  some  object  not  consumable,  to 
be  restored  to  him  in  kind  at  a  given  period. 

COMMODATUM.  A  contract  by  which 
one  of  the  parties  binds  himself  to  return 
to  the  other  certain  personal  chattels  which 
the  latter  delivers  to  him  to  be  used  by  him 
without  reward ;  loan  for  use.  See  Bail- 
ment. 

COMMODITIES  CLAUSE.  The  act  of 
Congress,  June  29,  1906,  provides  that  it 
shall  be  unlawful  for  any  railroad  company 
to  transport  commodities  (excepting  timber 
and  its  manufactured  products)  manufac- 
tured, mined  or  produced  by  it,  or  under  its 
authority,  or  which  it  may  own  in  whole  or 
in  part,  or  in  which  it  may  have  any  inter- 
est, direct  or  indirect,  except  such  articles 
or  commodities  as  may  be  necessary  or  in- 
tended for  its  use  in  its  business;  U.  S.  v. 
R.  Co.,  220  U.  S.  257,  31  Sup.  Ct.  387,  55  L. 
Ed.  458. 

Stock  ownership  in  a  bona  fide  corpora- 
tion, irrespective  of  the  extent  of  such  own- 
ership, does  not  preclude  the  railroad  com- 
pany from  transporting  such  commodities ; 
U.  S.  v.  Delaware  &  H.  Co.,  213  U.  S.  ::<;<;,  20 
Sup.  Ct.  527,  53  L.  Ed.  83G ;  unless  it  uses  its 
power  as  a  stockholder  to  obliterate  all  dis- 
tinctions between  the  two  corporations ;  U. 
S.  v.  R.  Co.,  220  U.  S.  257,  31  Sup.  Ct  3S7, 
55  L.  Ed.  458. 

See  Commerce;  Common  Carriers;  Rail- 
roads. 

COMMODITY.  Commodity  is  a  broader 
term  than  merchandise,  and  may  mean  al- 
most any  description  of  article  called  mova- 
ble or  personal  estate.  Shuttleworth  v.  State, 
35   Ala.  415;    State  v.   Henke,   19  Mo.  225. 


Labor  is  not  a  commodity ;  Rohlf  ▼.  Kase- 
meier,  140  la.  182,  118  N.  W.  270,  23  L.  R.  A 
(N.  S.)   1285. 

COMMODORE.     A    grade    in    the    United 
States  navy,  superior  to  a  captain.    Oi 
from  the  active  list.     Act  of 

COMMON.    An   lncorpo 
which   consists  in   a   profit  which 
has  in  connection  with  one  or  moi 
in  the  land  of  another.    Trustees  of  W( 
University  of   Pennsylvania   v.    Robinson,    12 
S.  &  R.    (Pa.)   32;   Van  Rensselaer  v.   Rad- 
cliff,  10  Wend.  (N.  Y.)  647,  25  Am.  Dec 
Livingston  v.  Ten  Broeck,  1G  Johns.   (N.  Y.  i 
14,   8  Am.   Dec.  287;   Leyman   v.  AheeL    16 
Johns.    (X.   Y.)    30;   Thomas   v.    Inhabitants 
of  Marshneld,  10  Pick.  (Mass.)   864;  3  Kent 
403. 

Common  of  digging,  or  common  in  the  soil, 
is  the  right  to  take  for  one's  own  use  part 
of  the  soil  or  minerals  in  another's  lands; 
the  most  usual  subjects  of  the  right  are 
sand,  gravel,  stones  and  clay.  It  is  of  a 
very  similar  nature  to  common  of  es- 
and  of  turbary.  Elton,  Com.  109;  Black, 
L.  Diet. 

Common  of  estovers  is  the  liberty  of  tak- 
ing necessary  wood,  for  the  use  of  furniture 
of  a  house  or  farm,  from  another  man's  es- 
tate. This  right  is  inseparably  attached  to 
the  house  or  farm,  and  is  not  apportionable. 
If.  therefore,  a  farm  entitled  to  estovers  be 
divided  by  the  act  of  the  parti/  among  - 
al  tenants,  neither  of  them  can  take  estovers, 
and  the  right  is  extinguished;  2  Bla.  Com. 
34;  Plowd.  381;  Vai  dcliff, 

10  Wend.  (N.  Y.)  639,  25  Am,  Dec.  582.  It 
is  to  be  distinguished  from  the  riu'ht  to 
estovers  which  a  tenant  for  life  has  in  the 
estate  which  he  occupies.     See  Estovers. 

Common  of  pasture  is  the  right  of  feeding 
one's  beast  on  another's  land.  It  is  either 
appendant,  appurtenant,  because  of  vicinage, 
or  in  gross. 

Common  of  piscary  is  the  liberty  of  fish- 
ing in  another  man's  water.  2  Bla.  Coin.  34. 
See  Fishery. 

Common  of  shack.  The  right  of  persons 
occupying  lands,  lying  together  in  the  same 
common  field,  to  turn  out  their  cattle  after 
harvest,  or  where  lands  were  fallow,  to  feed 
promiscuously  in  that  field;  Steph.  Com., 
623 ;  1  B.  &  Aid.  710. 

Common  of  turbary  is  the  liberty  of  dig- 
ging turf  in  another  man's  ground.  Com- 
mon of  turbary  can  only  be  appendant  or 
appurtenant  to  a  house,  not  to  lands,  be- 
cause turves  are  to  be  spent  in  the  bouse; 
4  Co.  37;  3  Atk.  189;  Noy  145;  7  Bast   127. 

The  taking  seaweed  from  a  beach  Is  a  com- 
monable right  in  Rhode  Island  :  Knowles  v. 
Nichols.  2  Curt.  C.  C.  571,  Fed.  Cas.  No. 
7.S97 ;  Kenyon  v.  Nichols,  1  R.  I.  100 ;  Hall 
v.  Lawrence.  2  R.  I.  21S.  57  Am.  Dec.  715; 
In  Virginia  there  are  statutory  provisions 
concerning    the    use    of   all    unappropriated 


COMMON 


552 


COMMON 


lands  on  the  Chesapeake  Bay,  on  the  shore 
of  the  sea,  or  of  any  river  or  creek,  and  the 
bed  of  any  river  or  creek  in  the  eastern  part 
of  the  commonwealth,  ungranted  and  used 
as  common;   Va.  Code,  c.  62,  §  1. 

In  most  of  the  cities  and  towns  in  the 
United  States,  there  are  considerable  tracts 
of  land  appropriated  to  public  use.  These 
commons  were  generally  laid  out  with  the 
cities  or  towns  where  they  are  found,  either 
by  the  original  proprietors  or  by  the  early 
inhabitants.     See  Pabks. 

Where  land  thus  appropriated  has  been 
accepted  by  the  public,  or  where  individuals 
have  purchased  lots  adjoining  land  so  appro- 
priated, under  the  expectation  excited  by 
its  proprietors  that  it  should  so  remain,  the 
proprietors  cannot  resume  their  exclusive 
ownership;  Abbott  v.  Mills,  3  Vt.  521,  23 
Am.  Dec.  222;  Emerson  v.  Wiley,  10  Pick. 
(Mass.)  310 ;  Stiles  v.  Curtis,  4  Day  (Conn.) 
328;  Proctor  v.  Ferebee,  36  N.  C.  144,  36 
Am.  Dec.  34;  Carr  v.  Wallace,  7  Watts  (Pa.) 
394.  And  see  Mansfield  v.  Hawkes,  14  Mass. 
440 ;  Rogers  v.  Goodwin,  2  Mass.  475 ;  White 
v.  Smith,  37  Mich.  291;  Emerson  v.  Thomp- 
son, 2  Pick.  (Mass.)  475 ;  Trustees  of  West- 
ern University  v.  ;Robinson,  12  S.  &  R.  (Pa.) 
32;  State  v.  Trask,  6  Vt.  355,  27  Am.  Dec. 
554. 

Common  Appendant.  Common  of  pasture 
appendant  is  a  right  annexed  to  the  pos- 
session of  land,  by  which  the  owner  there- 
of is  entitled  to  feed  his  beasts  on  the  wastes 
of  the  manor.  It  can  only  be  claimed  by 
prescription:  so  that  it  cannot  be  pleaded 
by  way  of  custom;  1  Rolle,  Abr.  396;  6 
Coke  59.  It  is  regularly  annexed  to  arable 
land  only,  and  can  only  be  claimed  for  such 
cattle  as  are  necessary  to  tillage,  as  horses 
and  oxen  to  plough  the  land,  and  cows  and 
sheep  to  manure  it;  2  Greenl.  Cruise,  Dig. 
4,  5;  Van  Rensselaer  v.  Radcliff,  10  Wend. 
(N.  Y.)  647,  25  Am.  Dec.  5S2.  Common  ap- 
pendant may  by  usage  be  limited  to  any 
certain  number  of  cattle;  but  where  there 
is  no  such  usage,  it  is  restrained  to  cattle 
levant  and  couchant  upon  the  land  to  which 
it  is  appendant;  Digb.  R.  P.  156;  2  M.  & 
R.  205 ;  2  Dane,  Abr.  611,  §  12.  It  may  be 
assigned;  and  by  assigning  the  land  to 
which  it  is  appended,  the  right  passes  as  a 
necessary  incident  to  it.  It  may  be  appor- 
tioned by  granting  over  a  parcel  of  the  land 
to  another,  either  for  the  whole  or  a  part 
of  the  owner's  estate;  4  Co.  36;  8  id.  78. 
It  may  be  extinguished  by  a  release  of  it  to 
the  owner  of  the  land,  by  a  severance  of  the 
right  of  common,  by  unity  of  possession  of 
the  land,  or  by  the  owner  of  the  land,  to 
which  the  right  of  common  is  annexed,  be- 
coming the  owner  of  any  part  of  the  land 
subject  to  the  right;  Bell  v.  R.  Co.,  25  Pa. 
161,  64  Am.  Dec.  6S7;  Livingston  v.  Ten 
Broeck,  16  Johns.  (N.  Y.)  14,  8  Am.  Dec.  2S7 ; 
Cro.  Eliz.  592. 


Common  of  estovers  or  of  piscary,  which 
may  also  be  appendant,  cannot  be  appor- 
tioned ;  8  Co.  78.  But  see  Hall  v.  Lawrence, 
2  R.  I.  218,  57  Am.  Dec.  715. 

Common  Appurtenant.  Common  appurte- 
nant differs  from  common  appendant  in  the 
following  particulars,  viz.:  it  may  be  claim- 
ed by  grant  or  prescription,  whereas  com- 
mon appendant  can  only  arise  from  pre- 
scription ;  it  does  not  arise  from  any  connec- 
tion of  tenure,  nor  is  it  confined  to  arable 
land,  but  may  be  claimed  as  annexed  to  any 
kind  of  land ;  it  may  be  not  only  for  beasts 
usually  commonable,  such  as  horses,  oxen, 
and  sheep,  but  likewise  for  goats,  swine, 
etc. ;  it  may  be  severed  from  the  land  to 
which  it  is  appurtenant,  it  may  be  com- 
menced by  grant;  and  an  interrupted  usage 
for  twenty  years  is  evidence  of  a  grant.  In 
most  other  respects  commons  appendant 
and  appurtenant  agree;  2  Greenl.  Cruise, 
Dig.  5 ;  30  E.  L.  &  Eq.  176 ;   15  East  108. 

Common  because  of  Vicinage.  The  right 
which  the  inhabitants  of  two  or  more  con- 
tiguous townships  or  vills  have  of  inter- 
commoning  with  each  other.  It  ought  to 
be'  claimed  by  prescription,  and  can  only  be 
used  by  cattle  levant  and  couchant  upon  the 
lands  to  which  the  right  is  annexed  r  and 
cannot  exist  except  between  adjoining 
townships,  where  there  is  no  intermediate 
land;  Co.  Litt.  122  a;  4  Co.  38  a;  7  id.  5; 
10  Q.  B.  581,  589,  604;  Smith  v.  Floyd,  18 
Barb.  (N.  Y.)  523. 

Common  in  Gross.  A  right  of  common 
which  must  be  claimed  by  deed  or  prescrip- 
tion. It  is  a  personal  and  not  a  prsedial 
right  It  has  no  relation  to  land,  but  is  an- 
nexed to  a  man's  person,  and  may  be  for  a 
certain  or  indefinite  number  of  cattle.  It 
cannot  be  aliened  so  as  to  give  the  entire 
right  to  several  persons  to  be  enjoyed  by 
each  in  severalty.  And  where  it  comes  to 
several  persons  by  operation  of  law,  as  by 
descent,  it  is  incapable  of  division  among 
them,  and  must  be  enjoyed  jointly.  Com- 
mon appurtenant  for  a  limited  number  of 
cattle  may  be  granted  over,  and  by  such 
grant  becomes  common  in  gross ;  Co.  Litt. 
122  a,  164  o;  5  Taunt.  244;  Ley  man  v.  Abeel, 
16  Johns.  (N.  Y.)  30;   2  Bla.  Com.  34. 

See  Viner,  Abr.  Common;  Bacon,  Abr. 
Common;  Com.  Dig.  Common;  2  Bla.  Com. 
34;  2  Washb.  R.  P.;  Williams,  Rights  of 
Common   (1880)  ;  3  Holdsw.  Hist.  E.  L.  120. 

COMMON  APPEARANCE.  Where  the  de- 
fendant in  an  action  after  due  service  of 
process  on  him  has  removed  from  the  juris- 
diction without  having  entered  an  appear- 
ance, or  cannot  be  found,  the  plaintiff  may 
file  a  common  appearance  and  enter  a  rule 
on  defendant  to  plead.  This  is  by  stat.  12 
Geo.  II.,  c.  29,  and  is  the  practice  in  Pennsyl- 
vania;  1  Troub.  &  Haly,  Pr.  159;  Bender 
v.  Ryan,  9  W.  N.  C.  (Pa.)  144 ;  and  in  replev- 
in under  the  act  of  1901. 


COMMON  ASSURANCES 


553 


COMMON  CARRIERS 


COMMON  ASSURANCES.  Deeds  which 
make  safe  or  assure  to  a  man  the  title  to 
his  estate,  whether  they  are  deeds  of  con- 
veyance or  to  charge  or  discharge. 

COMMON   BAIL.     Fictitious  sureties. 

In  the  fictitious  proceedings  by  which  the 
King's  Bench  extended  its  jurisdiction  of 
ordinary  civil  .suits,  if  the  defendant  did 
not  appear  to  the  Bill  of  Middlesex  or  the 
Latitat,  he  was  in  contempt;  this,  too,  was 
fictitious;  the  plaintiff  was  allowed  to  en- 
ter an  appearance  for  the  defendant,  with 
John  Doe  and  Richard  Roe  as  sureties.  This 
•was  "common  bail."    See  Bill  of  Middlesex. 

COMMON  BAR.  A  plea  to  compel  the 
plaintiff  to  assign  the  particular  place  where 
the  trespass  has  been  committed.  Steph. 
PI.,  And.  ed.  351.  It  is  sometimes  called  a 
blank  Dar. 

COMMON    BARRATRY.     See   Barratry. 

COMMON  BENCH.  The  ancient  name  for 
the  court  of  common  pleas.  See  Bench; 
Bancus  Communis. 

COMMON  CARRIERS.  One  whose  busi- 
ness, occupation,  or  regular  calling  it  is  to 
carry  chattels  for  all  persons  who  may 
choose  to  employ  and  remunerate  him. 
Dwight  v.  Brewster,  1  Pick.  (Mass.)  50,  11 
Am.  Dec.  133 ;  Fish  v.  Chapman,  2  Ga.  353, 
46  Am.  Dec.  393;  Schoul.  Bailm.  §  345; 
Naugatuck  'R.  Co.  v.  Button  Co.,  24  Conn. 
479. 

The  definition  includes  carriers  by  land 
and  water.  They  are,  on  the  one  hand, 
stagecoach  and  omnibus  proprietors,  rail- 
road and  street  railway  companies:  Spell- 
man  v.  Transit  Co.,  36  Neb.  S90,  55  N.  W. 
270,  20  L.  R.  A.  316,  38  Am.  St.  Rep.  7.":: ; 
truckmen,  wagoners,  and  teamsters,  carmen 
and  porters ;  and  express  companies,  wheth- 
er such  persons  undertake  to  carry  goods 
from  one  portion  of  the  same  town  to  an- 
other, or  through  the  whole  extent  of  the 
country,  or  even  from  one  state  or  kingdom 
to  another.  And,  on  the  other  hand,  this 
term  includes  the  owners  and  masters  of 
every  kind  of  vessel  or  water-craft  who  set 
themselves  before  the  public  as  the  car- 
riers of  freight  of  any  kind  for  all  who 
choose  to  employ  them,  whether  the  extent 
of  their  navigation  be  from  one  continent 
to  another  or  only  in  the  coasting  trade  or 
in  river  or  lake  transportation,  or  whether 
employed  in  lading  or  unlading  goods  or  in 
ferrying,  with  whatever  mode  of  motive 
power  they  may  adopt;  Story,  Bailm.  §  491: 
2  Kent  598,  599;  Redf.  Railw.  8  124;  1 
Salk.  249;  Fish  v.  Chapman,  2  Ga.  349,  46 
Am.  Dec.  393;  Knox  v.  Rives,  14  Ala.  2G1, 
48  Am.  Dec.  97;  Liverpool  &  G.  W.  Steam 
Co.  v.  Ins.  Co.,  129  TJ.  S.  397,  9  Sup.  Ct  469. 
32  L.  Ed  788;  Robertson  v.  Kennedy,  2 
Dana  (Ky.)  431,  26  Am.  Dec.  466 ;  Dibble  v. 
Brown,  12  Ga.  217.  56  Am.  Dec.  460.  An  oil 
pipe   line    company    is   a    common    carrier ; 


Giflin  v.  Pipe  Lines,  172  Pa.  5S0,  33  Atl. 
578. 

General   truckman    are   com  :  riers  ; 

Jackson    Architectural    Iron    \  Hurl- 

but,  158  N.  Y.  : 
Rep.    432.     Telegraph    or   te 
nies  formerly   were  held   i;"t   to  : 
carriers;   Tyler  v.  Telegraph  i 
11  Am.  Rep.  38;    Leonard  v.  h  Co., 

41  N.  Y.  544,  1  Am.  Rep.  44C :    Passmore  v. 
Telegraph  Co.,  78  Pa.  Z 
graph  Co.,   46   Barb.    iX.    Y.i    274;    W< 
Union   Tel.    Co.    v.    Fontah*  433; 

but  were  subject  to  the  rules  governing 
common  carriers  and  others  engaged  in  like 
public  employment ;  Delaware  &  A.  Tele- 
graph &  Telephone  Co.  v.  Delaware,  50  Fed. 
077,  2  C.  C.  A.  1 ;  Primrose  v.  Telegraph  Co., 
154  U.  S.  1,  14  Sup.  Ct  109S,  3S  L.  Ed.  883. 

The  term  "common  carrier,"  as  used  in  the 
Interstate  Commerce  Act  and  its  amendments, 
includes  express  and  sleeping  car  companies, 
telegraph,  telephone  and  cable  companies 
(both  wire  and  wireless),  and  pipe  lines. 
See  Telegraph  Compani.  hone  Com- 

panies. 

The  liability  of  the  owner  of  a  tug-boat 
to  his  tow  is  not  that  of  a  common  carrier; 
Hays  v.  Millar,  77  Ta.  238,  IS  Am.  Rep.  445; 
Caton  v.  Runiney,  13  Wend.  (N.  Y.i  387;  The 
New  Philadelphia,  1  Black  (1  17  I.. 

Ed.  84;  White  v.  The  Mary  Ann.  6  OaL  4«;j. 
65  Am.  Dec.  523. 

And  although  the  carrier  receives  the 
goods  as  a  forwarder  only,  yet  if  his  con- 
tract is  to  transport  and  to  deliver  tbem  at 
a  specified  address,  he  is  liable  as  a  common 
carrier:  Nashua  Lock  Co.  v.  R.  Co.,  48 
N.  H.  339,  2  Am.  Rep.  242. 

Common  carriers  are  responsible  for  all 
loss  or  damage  during  transportation,  from 
whatever  cause,  except  the  act  of  God  or 
the  public  enemy;  2  Ld.  Raym. 
1  Salk.  18  and  cases  cited:  26  B.  L.  &  Eq. 
595;  2  Kent  507.  598;  Turney  v.  "Wilson. 
7  Yerg.  (Tenn.i  340,  27  Am.  Dec.  515;  Mur- 
phy v.  Staton,  ?,  Munf.  (Va.)  239;  M.Arthur 
v.  Sears,  21  Wend.  (N.  Y.)  L90;  McCall  v. 
Brock,  5  Strob.  (S.  C.)  119;  Faulkner  v. 
Wright,  Rice  (S.  C.)  10S :  New  Brunswick 
Steamboat  Co.  v.  Tiers,  24  N.  J.  1 
Am.  Dec.  394;  Harris  v.  Rand.  4  N.  i. 
17  Am.  Dec.  421;  Christenson  v.  Express 
Co.,  15  Minn.  279  (Gil.  208),  -'  Am.  Rep.  122; 
South  &  X.  A.  R.  Co.  v.  Wood,  <;'••  Ala.  167, 
41  Am.  Rep.  749;  Inman  &  Co.  v.  R.  Co., 
159  Fed.  960.  The  act  of  God  is  held  to  ex- 
tend only  to  such  inevitable  accidents  as 
occur  without  the  intervention  of  man's 
agency;  McArthur  v.  Sears,  L'l  Wend.  (N. 
Y.)  190;  which  could  not  be  avoided  by  the 
exercise  of  due  skill  and  care;  Hart  v.  Al- 
len, 2  Watts  (Pa.)  114;  Memphis  &  C.  R.  Co. 
v.  Reeves,  10  Wall.  (U.  S.)  176,  19  L.  Ed. 
909 ;  but  where  freight  cars  are  stopped  by 
a  flood  and  the  contents  stolen,  the  loss  is 
not  due  to  inevitable  accident,  act  of  God, 


COMMON  CARRIERS 


554 


COMMON  CARRIERS 


or  insurrection ;  Lang  v.  R.  Co.,  154  Pa. 
342.     See  Act  of  Gon. 

The  carrier  is  not  responsible  for  losses 
occurring  from  natural  causes,  such  as  frost, 
fermentation,  evaporation,  or  natural  decay 
of  perishable  articles,  or  the  natural  and 
necessary  wear  in  the  course  of  transpor- 
tation, or  the  shipper's  carelessness,  provid- 
ed the  carrier  exercises  all  reasonable  care 
to  have  the  loss  or  deterioration  as  little  as 
practicable;  Bull.  N.  P.  69;  2  Kent  299; 
Story,  Bailm.  §  492  a;  Warden  v.  Greer,  6 
Watts  (Pa.)  424;  Redf.  Railw.  §  141;  Jordan 
v.  Exp.  Co.,  86  Me.  225,  29  Atl.  980;  The 
Guidiug  Star,  53  Fed.  936;  International  & 
G.  N.  R.  Co.  v.  Hynes,  3  Tex.  Civ.  App.  20, 
21  S.  W.  622;  Goodman  v.  Nav.  Co.,  22  Or. 
14,  28  Pac.  894.  See  Wabash  St.  L.  &  P.  Ry. 
Co.  v.  Jaggerman,  115  111.  407,  4  N.  E.  641 ; 
Fox  v.  R.  Co.,  148  Mass.  220,  19  N.  E.  222, 
1  L.  R.  A.  702.  But  a  carrier  which  re- 
ceives perishable  goods  for  through  trans- 
portation is  bound  to  furnish  cars  adapted 
to  preserve  them  during  the  journey,  and 
cannot  escape  its  duty  by  delegating  to  an 
independent  contractor  the  task  of  furnish- 
ing and  icing  a  refrigerator  car;  St.  Louis, 
I.  M.  &  S.  R.  Co.  v.  Renfroe,  82  Ark.  143, 
100  S.  W.  8S9,  10  L.  R.  A.  (N.  S.)  317,  118 
Am.  St.  Rep.  58;  damp  weather  and  delays 
incident  to  railway  traffic  are  no  excuse 
for  failure  properly  to  ice  cars ;  C.  C.  Taft 
Co.  v.  Exp.  Co.,  133  la.  522,  110  N.  W.  897. 

In  every  contract  for  the  carriage  of  goods 
by  sea,  unless  otherwise  expressly  stipulated, 
there  is  a  warranty  on  the  part  of  the  ship- 
owner that  the  ship  is  seaworthy  when  she 
begins  her  voyage,  and  his  undertaking  is 
not  discharged  because  the  want  of  fitness 
is  the  result  of  latent  defects;  The  Cale- 
donia, 157  U.  S.  124,  15  Sup.  Ct.  537,  39  L. 
Ed.  644. 

Carriers,  both  by  land  and  water,  when 
they  undertake  the  general  business  of  car- 
rying every  kind  of  goods,  are  bound  to 
carry  for  all  who  offer;  and  if  they  refuse, 
without  just  excuse,  they  are  liable  to  an 
action;  Dwight  v.  Brewster,  1  Pick.  (Mass.) 
50,  11  Am.  Dec.  133 ;  Pomeroy  v.  Donaldson, 
5  Mo.  36;  Hale  v.  Navigation  Co.,  15  Conn. 
539,  39  Am.  Dec.  398;  Jencks  v.  Coleman,  2 
Sumn.  ,221,  Fed.  Cas.  No.  7,258;  Sewall  v. 
Allen,  6  Wend.  (N.  Y.)  335;  Citizens'  Bank 
v.  Steamboat  Co.,  2  Sto.  16,  Fed.  Cas.  No. 
2,730;  L.  R.  1  C.  P.  423;  Piedmont  Mfg.  Co. 
v.  R.  Co.,  19  S.  C.  353;  New  Jersey  Steam 
Nav.  Co.  v.  Bank,  6  How.  (U.  S.)  344,  12  L. 
Ed.  465;  30  L.  J.  Q.  B.  273. 

A  common  carrier  is  bound  to  treat  all 
shippers  alike  and  may  be  compelled  to  do 
so  by  mandamus;  Missouri  Pac.  R.  Co.  v. 
Flour  Mills  Co.,  211  U.  S.  612,  29  Sup.  Ct. 
214,  53  L.  Ed.  352;  State  v.  Ry.  Co.,  52  La. 
Ann.  1850,  28  South.  284;  it  cannot  law- 
fully reject  some  goods  and  afterwards  re- 
ceive and  transport  others  when  at  the 
time  of   refusal   there  is   room   for  the   re- 


jected goods ;  Ocean  S.  S.  Co.  of  Savannah  v. 
Supply  Co.,  131  Ga.  831,  63  S.  E.  577,  20  L. 
R.  A.  (N.  S.)  867,  127  Am.  St.  Rep.  265,  15 
Ann.  Cas.  1044.  It  must  furnish  cars  when 
requested  by  a  shipper,  and  if  unable  to  do 
so  must  advise  the  shipper  of  that  fact; 
Di  Giorgio  Importing  &  Steamship  Co.  v.  R. 
Co.,  104  Md.  693,  65  Atl.  425,  8  L.  R.  A.  (N. 
S.)  108;  but  at  common  law  there  is  no 
duty  to  furnish  sufficient  cars  for  transpor- 
tation beyond  its  own  line  of  road;  Gulf,  C. 
&  S.  F.  R.  Co.  v.  State,  56  Tex.  Civ.  App.  353, 
120  S.  W.  1028.  The  Hepburn  Act  (June  29, 
1906)  made  it  the  duty  of  interstate  carriers 
to  furnish  cars;  this  invalidated  all  state 
laws  on  the  same  subject;  Chicago,  R.  I.  & 
P.  R.  Co.  v.  Elevator  Co.,  226  U.  S.  426,  33 
Sup.  Ct.  174,  57  L.  Ed.  284,  reversing  Hard- 
wick  Farmers'  Elevator  Co.  v.  R.  Co.,  110 
Minn.  25,  124  N.  W.  819,  19  Ann.  Cas.  1088; 
Yazoo  &  M.   V.  R.  Co.  v.  Grocery  Co.,  227 

U.  S.  1,  33  Sup.  Ct.  213,  55  L.  Ed.  .     But 

the  business  of  a  common  carrier  may  be 
restricted  within  such  limits  as  he  may  deem 
expedient,  if  an  individual,  or  which  may 
be  prescribed  in  its  grant  of  powers,  if  a 
corporation,  and  he  is  not  bound  to  accept 
goods  out  of  the  line  of  his  usual  business. 
But  should  the  carrier  accept  goods  not 
within  the  line  of  his  business,  he  assumes 
the  liability  of  a  common  carrier  as  to  the 
specific  goods  accepted;  Farmers'  &  Mechan- 
ics' Bank  v.  Transp.  Co.,  23  Vt.  1S6,  56  Am. 
Dec.  68;  Hays  v.  Mouille,  14  Pa.  48 ;  Bennett 
v.  Dutton,  10  N.  H.  481 ;  Powell  v.  Mills,  30 
Miss.  231,  64  Am.  Dec.  158;  New  York  C.  R. 
Co.  v.  Lockwood,  17  Wall.  (U.  S.)  357,  21  L. 
Ed.  627;  Sewall  v.  Allen,  6  Wend.  (N.  Y.) 
335;  Kimball  v.  R.  Co.,  26  Vt  248,  62  Am. 
Dec.  567.  The  carrier  may  require  freight 
to  be  paid  in  advance;  but  in  an  action  for 
not  carrying,  it  is  only  necessary  to  allege 
a  readiness  to  pay  freight ;  8  M.  &  W.  372; 
Galena  &  C,  U.  R.  Co.  v.  Rae,  18  111.  488,  68 
Am.  Dec.  574 ;  Knox  v.  Rives,  14  Ala.  249, 
48  Am.  Dec.  97.  It  is  not  required  to  prove 
or  allege  a  tender,  if  the  carrier  refuse  to 
accept  the  goods  for  transportation.  The 
carrier  is  entitled  to  a  lien  upon  the  goods 
for  freight;  2  Ld.  Raym.  752;  and  for  ad- 
vances made  to  other  carriers;  White  v. 
Vann,  6  Humphr.  (Tenn.)  70,  44  Am.  Dec. 
294;  Bissel  v.  Price,  16  111.  408;  Palmer  v. 
Lorillard,  16  Johns.  (N.  Y.)  356;  Boggs  v. 
Martin,  13  B.  Monr.  (Ky.)  243.  The  consign- 
or is  prima  facie  liable  for  freight;  but  the 
consignee  may  be  liable  when  the  consignor 
is  his  agent,  or  when  the  title  is  in  him  and 
he  accepts  the  goods ;  3  Bingh.  3S3;  Merian 
v.  Funck,  4  Den.  (N.  Y.)  110;  New  York  & 
Harve  Steam  Nav.  Co.  v.  Young,  3  E.  D. 
Sm.  (N.  Y.)  187.  A  shipper  must  pay  the 
combined  rates  over  connecting  railroads 
existing  at  the  time  of  the  shipment,  and  he 
cannot  take  advantage  of  a  reduction,  while 
the  goods  are  in  transit  over  the  first  road, 
if  there  are  no  joint  through  rates;   Payne 


COMMON  CARRIERS 


555 


COMMON  CARRIERS 


v.  Atchison,  T.  &  S.  F.  R.  Co.,  12  Int  St 
Com.  Rep.  190. 

Common  carriers  may  qualify  their  com- 
mon-law responsibility  by  special  contract; 
4  Coke  S3;  1  Ventr.  238;  Story,  Bailm.  § 
549;  Now  York  C.  R.  Co.  v.  Lockwood,  17 
Wall.  (U.  S.)  357,  21  L.  Ed.  627;  Michigan 

C.  R.  Co.  v.  Mfg.  Co.,  1G  Wall.  (U.  S.)  318, 
21  L.  Ed.  207;  Empire  Transp.  Co.  v.  Oil 
Co.,  G3  Pa.  14,  3  Am.  Rep.  515;  Indianapolis, 

D.  &  W.  R.  Co.  v.  Forsythe,  4  Ind.  Am 

29  N.  E.  1138.  A  carrier  cannot  exact  as  a 
condition  precedent  that  a  Bhipper  must  sign 
a  contract  in  writing  limiting  the  common 
law  liability;  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Dill,  48  Kan.  210,  29  Pac.  148;  Missouri,  K. 
&  T.  R.  Co.  of  Texas  v.  Carter,  9  Tex.  Civ. 
App.  677,  29  S.  W.  565.  A  contract  to  quali- 
fy tbe  common-law  liability  may  be  shown 
by  proving  a  notice,  brought  home  to  and 
assented  to  by  the  owner  of  the  goods  or  his 
authorized  agent,  wherein  the  carrier  stipu- 
lates for  a  qualified  liability;  8  M.  &  W.  243; 
New  Jersey  Steam  Nav.  Co.  v.  Bank,  6  BOW. 
(U.  S.)  344,  12  L.  Ed.  405;  Dorr  v.  Nav.  Co., 
11  N.  Y.  491,  62  Am.  Dec.  125;  Laing  v. 
Colder,  8  Pa.  479,  49  Am.  Dec.  533;  Swindler 
v.  Milliard,  2  Rich.  (S.  C.)  2S6,  45  Am.  Dec. 
732;  Reno  v.  Hogan,  12  B.  Monr.  (Ky.)  63, 
54  Am.  Dec.  513;  Farmers'  &  Mechanics' 
Bank  v.  Transp.  Co.,  23  Vt.  186,  50  Am.  Dec. 
68;  Barney  v.  Prentiss,  4  Har.  &  J.  (Md.) 
317,  7  Am.  Dec.  670.  A  carrier  may  for  a 
consideration  limit  its  common  law  liability; 
Simmons  Hardware  Co.  v.  Ry.  Co.,  140  Mo. 
App.  130,  120  S.  W.  6G3;  a  mere  agreement 
to  carry  is  not  a  sufficient  consideration ; 
Burgher  v.  R.  Co.,  139  Mo.  App.  62,  120  S. 
W.  673 ;  the  limitation  must  be  made  by  spe- 
cial contract;  Central  of  Georgia  Ry.  Co.  v. 
Hall,  124  Ga.  322,  52  S.  E.  679,  4  L.  R.  A. 
(N.  S.)  898,  110  Am.  St.  Rep.  170,  4  Ann.  Cas. 
128;  and  no  contract  will  be  implied  from 
any  condition  in  a  bill  of  lading  unless  clear- 
ly brought  to  the  shipper's  attention  at  the 
time  of  shipment;  Baltimore  &  O.  R.  Co.  v. 
Doyle,  142  Fed.  669,  74  C.  C.  A.  245.  In 
the  case  of  passage  tickets  for  an  ocean 
voyage  a  limitation  with  regard  to  bag- 
gage liability  covers  a  loss  occasioned  by 
negligence  although  not  expressly  provided 
for;  Tewes  v.  S.  S.  Co.,  186  N.  Y.  151,  78  N. 

E.  864,  8  L.  R.  A.  (N.  S.)  199,  9  Ann.  Cas.  909. 
A  contract  by  a  carrier  limiting  his  liability 
for  negligence  is  governed  by  the  lex  loci 
contractus:  Fairchild  v.  R.  Co.,  148  Pa.  527, 
24  Atl.  79. 

But  the  carrier  cannot  contract  against 
his  own  negligence  or  the  negligence  of  his 
employes  and  agents;  Muser  v.  Exp.  Co.,  1 
Fed.  3S2;  Welch  v.  R.  Co.,  41  Conn.  .".::::; 
New  York  C.  R.  Co.  v.  Lockwood,  17  Wall. 
(U.  S.)  357,  21  L.  Ed.  627;  Adams  Exp.  Co. 
v.  Sharpless,  77  Pa.  516 ;  Inman  v.  R.  Co..  1-9 
U.  S.  12S,  9  Sup.  Ct.  249,  32  L.  Ed.  GIL'; 
Liverpool  &  G.  W.  Steam  Co.  v.  Ins.  Co.,  129 
U.  S.  397,  9  Sup.  Ct.  469,  32  L.  Ed.  78S;  The 


Edwin  I.  Morrison,  153  U.  s.  199,  14  Sup. 
Ct.   823,    38   L.    Ed.   CbS;   L.    It.   i:   App. 

South  &  N.  A.  R.  Co.  v.  B 
368;    Merchants'    Despatch     i 
Theilbar,  86  111.  71;  Wright  v.  Gaff,  G  Ind. 
41G;  Ohio  &  M.   R.  Co.  v.  1   lid.  471. 

17  Am.  Rep.  719;  Hoadley  v.  1  ,  115 

Mass.  304,  15  Am.  Rep.  L< 
Co.,  42  Mo.  8S,  97  Am.  I>  e  ab- 

sence of  legislation  by  coi 

e  upon  common  carriers  even  in  inter- 
state   business    a    liability    for    their 
geuce,   a   contract    to   the   contrary   notwith- 
standing; Pennsylvania  R.  Co.  v.  Hughes,  191 
C.   s.    177,  24   Sup.  Ct   132,  48  L.   Ed. 
usually   a   common   carrier  cannot   limit  its 
liability  lor  loss  due  to  its  negligence; 
tral  of  Georgia  R.  Co.  v. 

52  S.  E.  679,  1  I..  R.  A.  (S.  S.)  898,  110  Am. 
St.  Rep.  170,  4  Ann.  Cas.  128;  Ohio  vV  M.  R. 
Co.  v.  Selby,  47  Ind.  471,  17  Am.  Rep.  719; 
Russell  v.  R,  Co..  157  Ind.  305,  <ji  x.  E.  678, 
55  L.  R,  a.  253,  87  Am.  St.  Rep.  I'll:  Balti- 
more &  O.  S.  W.  Ry.  Co.  v.  Voigt,  1 TC,  c.  s. 
498,  20  Sup.  Ct.  385,  44  L.  Ed.  5G0;  Pitts- 
burgh, C,  C.  &  St.  L.  Ry.  Co.  v.  Mahoney, 
148  Ind.  196,  46  N.  E.  917,  47  N.  E.  -1G4,  40 
L.  R.  A.  101,  62  Am.  St.  Rep.  503;  even 
though  a  reduced  rate  based  on  a  limited 
valuation  of  the  property  has  been  approved 
by  the  state  commission ;  Everett  v.  R.  Co., 
138  N.  C.  68,  50  S.  E.  557,  1  L  R.  A.  (X.  B.) 
9S5;  this  rule  does  not  apply  outside  of  the 
performance  of  its  duties  :is  a  common  car- 
rier; Santa  Fe,  P.  &  P.  Ry.  Co.  v.  Const 
Co.,  228  U.  S.  177,  33  Sup.  Ct.  471.  57  L.  Ed. 

;    where   a   gratuitous   pass   containing   a 

condition  absolviug  the  company  from  neg- 
ligence is  issued  by  a  carrier  by  sea,  there 
can  be  no  recovery  for  the  carrier's  negli- 
gence; [1900]  P.  D.  161.  The  reasons  for 
the  rule  forbidding  a  contract  against  its 
own  negligence  fail  as  to  persons  riding  on 
pass;  Griswold  v.  R.  Co.,  53  Conn.  371,  4 
Atl.  261,  55  Am.  Rep.  115;  Rogers  v.  Steam- 
boat Co.,  86  Me.  261,  29  Atl.  1069,  25  L.  R. 
A.  491;  Quimby  v.  R.  Co.,  150  Mass.  365,  23 
N.  E.  205,  5  L.  R.  A.  84G:  Kinney  v.  R.  Co., 
34  N.  J.  L.  513,  3  Am.  Rep.  lie..":  Wells  v.  R. 
Co.,  24  N.  Y.  181;  Muldoon  v.  R.  Co.,  7  Wash. 
528,  35  Pac.  422,  22  L.  R.  A.  791,  38  Am.  St. 
Rep.  901.  The  carrier  is  liable  for  injuries 
to  the  shipper's  servants  resulting  from  de- 
fects in  a  car  furnished  by  it;  Chicago.  I.  & 
L.  R.  Co.  v.  Pritchard,  168  Ind.  398,  7'."  X. 
E.  508,  Bl  X.  E.  78,  '•»  L,  it.  A.  i\.  S.)  857; 
and  likewise  it'  the  defects  injure  the  prop- 
erty received  by  it.  although  the  car  is  in 
fact  the  property  of  another  corporation; 
Ladd  v.  R.  Co..  193  Mass.  ::•".!>.  7:i  N.  E.  74L\ 
9  L.  R.  A.  (X.  S.)  874.  9  Ann.  Cas.  OSS. 

Railroad  companies,  steamboats,  and  all 
other  carriers  who  allow  express  companies 
to  carry  parcels  and  packages  on  their  cars, 
or  boats,  or  other  vehicles,  are  liable  as 
common  carriers  to  the  owners  of  goods  for 
all  loss  or  damage  which  occurs,  without  re- 


COMMON  CARRIERS 


556 


COMMON  CARRIERS 


gard  to  the  contract  between  them  and  such 
express  carriers;  New  Jersey  Steam  Nav. 
Co.  v.  Bank,  6  How.  (U.  S.)  344,  12  L.  Ed. 
465 ;  Farmers'  &  Mechanics'  Bank  v.  Transp. 
Co.,  23  Vt.  186,  56  Am.  Rep.  68;  American 
Exp.  Co.  v.  Ogles,  36  Tex.  Civ.  App.  407,  81 
S.  W.  1023. 

A  carrier  is  not  liable  for  the  loss  of  a 
mail  package  through  the  negligence  of  its 
employe,  being  in  that  employment  not  a 
carrier,  but  a  public  agent  of  the  United 
States:  Bankers'  Mutual  Casualty  Co.  v.  Ry. 
Co.,  117  Fed.  434,  54  C.  C.  A.  608,  65  L.  R. 
A.  397.  But  where  the  carrier  transports 
cars  of  an  express  company  under  a  spe- 
cial contract,  a  clause  exempting  the  carrier 
from  liability  is  valid;  Baltimore  &  O.  S. 
Ry.  Co.  v.  Yoigt,  176  U.  S.  498,  20  Sup.  Ct. 
385,  44  L.  Ed.  560. 

Railways,  steamboats,  packets,  and  other 
common  carriers  of '  passengers,  although 
not  liable  for  injuries  to  their  passengers 
without  their  fault,  are  nevertheless  respon- 
sible for  the  baggage  of  such  passengers  in- 
trusted to  their  care  as  common  carriers  of 
goods;  and  such  responsibility  continues  for 
a  reasonable  time  after  the  goods  have  been 
placed  in  the  warehouse  or  depot  of  the 
carrier,  at  the  place  of  destination,  for  de- 
livery to  the  passenger  or  his  order;  2  B.  & 
P.  416;  Powell  v.  Myers,  26  Wend.  (N.  Y.) 
591 ;  Bennett  v.  Dutton,  10  N.  H.  4S1 ;  Dill  v. 
R.  Co.,  7  Rich.  (S.  C.)  158,  62  Am.  Dec.  407. 
See  Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Smith, 
81  Tex.  479,  17  S.  W.  133. 

Where  baggage  was  stored  with  a  carrier 
as  warehouseman  after  its  arrival  by  rail- 
road, the  burden  is  on  the  owner  to  show 
negligence;  Yazoo  &  M.  V.  R.  Co.  v.  Hughes, 
94  Miss.  242,  47  South.  662,  22  L.  R.  A.  (N. 
S.)  975.  If  a  carrier  maintains  a  check  room 
and  limits  its  liability  for  articles  checked, 
such  limitation  is  good,  but  the  carrier  is 
liable  as  an  insurer  for  the  limited  amount; 
Terry  v.  Southern  Ry.,  81  S.  C.  279,  62  S.  E. 
249,  18  L.  R.  A.  (N.  S.)  295. 

See  Baggage. 

The  responsibility  of  common  carriers  be- 
gins upon  the  delivery  of  the  goods  for  im- 
mediate transportation.  A  delivery  at  the 
usual  place  of  receiving  freight,  or  to  the 
employes  of  the  company  in  the  usual  course 
of  business,  is  sufficient;  Merriam  v.  R.  Co., 
20  Conn.  354,  52  Am.  Dec.  344;  2  M.  &  S. 
172;  Gregory  v.  Ry.  Co.,  46  Mo.  App.  574; 
Railway  Co.  v.  Neel,  56  Ark.  279,  19  S.  W. 
963;  Rogers  v.  Wheeler,  52  N.  Y.  262;  Illinois 
Cent.  R.  Co.  v.  Smyser  &  Co.,  38  111.  354,  87 
Am.  Dec.  301 ;  but  where  carriers  have  a 
warehouse  at  which  they  receive  goods  for 
transportation,  and  goods  are  delivered  there 
not  to  be  forwarded  until  some  event  occur, 
the  carriers  are,  in  the  meantime,  only  re- 
sponsible as  depositaries;  Moses  v.  R.  R.,  24 
N.  H.  71,  55  Am.  Dec.  222 ;  and  where  goods 
are  received  as  wharfingers,  or  warehousers, 
or  forwarders,  and  not  as  carriers,  liability 


will  be  incurred  only  for  ordinary  negli- 
gence; Piatt  v.  Hibbard,  7  Cow.  (N.  Y.)  497. 
A  carrier  may  make  reasonable  regulations 
governing  the  manner  and  place  in  which  it 
will  receive  articles  which  it  professes  to 
carry,  and  these  regulations  may  be  changed 
on  reasonable  notice  to  the  public;  Robinson 
v.  R.  Co.,  129  Fed.  753,  64  C.  C.  A.  281 ;  proof 
of  delivery  of  property  to  the  carrier  in 
sound  condition  and  of  its  re-delivery  at 
the  end  of  the  route  in  damaged  condition 
is  sufficient  to  sustain  a  recovery;  Duncan 
v.  R,  Co.,  17  N,  D.  610,  118  N.  W.  826,  19 
L.  R.  A.  (N.  S.)  952.  Where  goods  are  in- 
jured because  of  insecure  packing  or  boxing, 
the  carrier  is  not  liable;  Goodman  v.  O.  R. 
&  N.  Co.,  22  Or.  14,  28  Pac.  894;  but  where 
it  does  not  appear  that  they  were  received 
as  in  bad  order,  or  that  they  were  so  in  fact, 
the  presumption  is  that  they  were  in  good 
order ;  Henry  v.  Banking  Co.,  89  Ga.  815,  15 
S.  E.  757.  Where  there  was  less  than  a 
carload  of  goods,  and  there  was  no  agree- 
ment on  the  part  of  the  carrier  to  transport 
them  in  a  ventilated  car,  although  it  was 
requested  by  the  carrier  that  they  should  be 
so  shipped,  it  was  held  that  the  carrier  was 
not  liable  for  the  loss  of  perishable  goods; 
Davenport  Co.  v.  R.  Co.,  173  Pa.  398,  34 
Atl.  59. 

The  responsibility  of  the  carrier  termi- 
nates after  the  arrival  of  the  goods  at  their 
destination  and  a  reasonable  time  has  elaps- 
ed for  the  owner  to  receive  them  in  business 
hours.  After  that,  the  carrier  may  put  them 
in  a  warehouse,  and  is  only  responsible  for 
ordinary  care ;  Thomas  v.  R.  Corp.,  10  Mete. 
(Mass.)  472,  43  Am.  Dec.  444;  Smith  v.  Rail- 
road, 27  N.  H.  86,  59  Am.  Dec.  364 ;  2  M.  & 
S.  172.  Where  goods  are  delivered  to  the 
consignee  in  violation  of  instructions  not  to 
deliver  without  a  bill  of  lading,  the  com- 
pany is  liable  to  the  shipper  for  loss  there- 
by sustained;  Foggan  v.  R.  Co.,  61  Hun  623, 
16  N.  Y.  Supp.  25.  The  delivery  of  goods 
from  a  ship  must  be  according  to  the  cus- 
tom of  the  port,  and  such  delivery  will  dis- 
charge the  carrier  of  his  responsibility ;  Con- 
stable v.  S.  S.  Co.,  154  U.  S.  51,  14  Sup.  Ct. 
1062,  38  L.  Ed.  903. 

Notice  to  the  consignee  of  the  arrival  of 
goods  and  a  reasonable  time  to  remove  them 
are  necessary  to  reduce  the  liability  of  the 
carrier  to  that  of  a  warehouseman;  Royth- 
ress  v.  R.  Co.,  148  N.  C.  391,  62  S.  E.  515, 
18  L.  R.  A.  (N.  S.)  427;  and  where  goods  are 
stolen  after  notice  to  the  consignee,  but  be- 
fore a  reasonable  time  for  removal  has 
elapsed,  the  carrier  is  liable;  Burr  v.  Ex- 
press Co.,  71  N.  J.  L.  263,  58  Atl.  609.  The 
test  of  reasonable  time  for  the  removal  of 
goods  which  changes  a  carrier  to  a  ware- 
houseman is  whether  the  consignee  exercised 
reasonable  diligence  to  ascertain  when  the 
goods  had  arrived  or  would  arrive,  and  to 
remove  them  after  he  had  received,  or,  with 
reasonable  care,  would  have  received  notice; 


COMMON  CARRIERS 


557 


COMMON  CARRIERS 


Lewis  v.  R.  Co.,  135  Ky.  361,  122  S.  W.  184, 
2",  L.  R.  A.  (X.  S.)  938,  21  Ann.  Cas.  527. 
Three  and  a  half  months  was  held  more 
than  reasonable  time;  Norfolk  &  W.  E.  Co.  v. 
Mill.  Co.,  109  Va.  184,  63  S.  E.  415;  eighteen 
days  after  notice  was  mailed;  Southern  R. 
Co.  v.  Machine  Co.,  165  Ala.  436,  51  South. 
770.     Where  !>•• .  !  left  over  night,  the 

carrier's  liability,  if  any,  for  its  Loss,  was 
that  nf  a  warehouseman;  Campbell  v.  R.  Co., 
78  Neb.  179,  111  N.  W.  126.  One  and  a  half 
business  days  is  suflicieut  to  terminate  the 
liability  of  the  carrier  as  such;  United 
Fruit  Co.  v.  Transportation  Co.,  101  M<1. 
567,  65  Atl.  415,  8  L.  R.  A.  (N.  S.)  240,  10 
Ann.  fas.  ;::7;  a  carrier  whose  liability  has 
become  that  of  a  warehouseman  is  liable 
as  a  bailee  for  hire  unless  it  notifies  the 
owner  that  it  will  no  longer  hold  the  prop- 
erty  as  warehouseman:  Brunson  &  Poat- 
wright  v.  P.  Co..  76  S.  C.  9,  56  S.  E.  538,  9 
L.  R.  A.  (X.  S.i  577. 

On  unconditional  consignments  the  carrier 
must  treat  the  consignee  as  the  absolute 
owner  until  he  receives  notice  to  the  con- 
trary; Pratt  v.  Express  Co.,  13  Idaho,  373, 
00  Pac.  841,  10  L.  R.  A.  (X.  S.)  409,  121  Am. 
St.  Rep.  26S:  where  the  consignee  takes  the 
goods  from  the  carrier's  possession  without 
its  knowledge  or  consent,  the  carrier  is  not 
justified  for  its  failure  to  comply  with  an 
order  of  the  shipper  diverting  the  consign- 
ment; Atchison,  T.  &  S.  F.  R.  Co.  v.  Schriv- 
er,  72  Kan.  550,  S4  Pac.  119,  4  L.  R.  A.  (N. 
S.)  1056;  but  there  is  no  liability  where  the 
carrier  permits  inspection  of  the  goods  at 
the  point  of  destination  in  consequence  of 
which  the  consignor,  who  was  also  the  con- 
signee, was  prevented  from  making  a  sale 
thereof;  Dudley  v.  Ry.  Co.,  58  W.  Va.  604, 
52  S.  E.  718,  3  L.  R.  A.  (N.  S.)  1135,  112  Am. 
St.  Rep.  I(i27. 

Where  goods  are  so  marked  as  to  pass  over 
successive  liues  of  railways,  or  other  trans- 
portation having  no  partnership  connection 
in  the  business  of  carrying,  the  successive 
carriers  are  only  liable  for  damage  or  loss 
occurring  during  the  time  the  goods  are  in 
their  possession  for  transportation;  .Nashua 
Lock  Co.  v.  R.  Co.,  48  N.  II.  339,  2  Am.  Rep. 
212;  Ogdensburg  &  L.  C.  R.  Co.  v.  Pratt,  L'2 
Wall.  (U.  S.)  129,  22  L.  Ed.  S27 ;  Van  Sant- 
voord  v.  St.  John,  6  Hill  (X.  Y.)  15S;  Hood 
v.  R.  Co.,  22  Conn.  502;  Nutting  v.  R.  Co.,  1 
Gray  (Mass.)  502;  Dunbar  v.  Ry.  Co.,  36  S. 
C.  110,  15  S.  E.  357,  31  Am.  St.  Rep.  S60; 
Church  v.  R.  Co.,  1  Old.  44,  29  Pac.  530; 
Alabama  G.  S.  R.  Co.  v.  Mt.  Vernon  Co.,  84 
Ala.  175,  4  South.  356;  Central  R.  Co.  v. 
Hasselkus,  91  Ga.  3S4,  17  S.  E.  838,  44  Am. 
St.  Rep.  37  :  Erie  R.  Co.  v.  Wilcox,  S4  111. 
240.  25  Am.  Pop.  451;  Louisville  &  X.  R.  Co. 
v.  Campbell,  7  Heisk.  (Tenn.)  257;  Beard  v. 
R.  Co.,  79  la.  531,  44  N.  W.  803 ;  Kyle  v.  R. 
Co.,  10  Rich.  (S.  C.)  382,  70  Am.  Dec.  231. 
A  carrier  may  stipulate  that  it  shall  be  re- 
leased from   liability   after  goods  have  left 


its  road;  Texas   &   P.    R.    Co.  v.   Adam 

72,  14  S.   W.  666,  22  Am.   St.   H 
McCarn   v.    Ry.   Co.,  S4   Tex.   352,    19   S.    W. 
547,    16  L.    R.   A.   39,   31   Am.    St.    Rep.   51; 
Coles  v.  R.  Co.,  41  111.  Ap  f.  a  ft  s. 

F.   R.   Co.  v.    CI;  App.    547, 

24  s.  w.  355.     The  Bnj  1  the 

first  carrier,   who  a©  d  for 

a    place    beyond    bis    roul  osible   for 

the   entire   route,    unless    he 

ly  for  the  extent  of  his  own  route  only; 
8  M.  ft  W.  421;  3  E.  L.  &  Eq.  497;  18  id. 
553,  557;  7  H.  L.  194. 

Where  one  of  the  carriers  has  contn 
clearly   and   unequivocally   to    deliver   goods 
at  their  destination,  t.  e.,  to  carry  then: 
the  whole  route,  his  liability  will  continue 
until  final  delivery;  Converse  v.  Transp.  Co., 
33  Conn.  17S ;  Pennsylvania  R.  Co.  v.   B 
68  Pa.   272:   Stewart   v.   R.   Co.,  3  Fed.   768; 
Gray  v.  Jackson.  51  X.  II.  9,  12  Am.  Pep.  1: 
Ohio  &  M.  R.  Co.  v.  McCarthy,  96  D.  S.  258, 
21  L.  Ed.  693;  Erie  Ry.  Co.  v.  Wi  • 
239,  25  Am.  Pep.  451.     See  9  L.  P.  A 

Newell  v.  Smith,  49  Vt  255;  Jennings 
v.  R.  Co.,  127  X.  Y.  438,  28  X.  E.  394;  but  the 
carrier  upon  whose  line  the  damage  or  loss 
has  occurred  will  also  be  liable;  Langhlin 
v.  Ry.  Co.,  28  Wis.  209,  9  Am.  Pep.  493; 
Brlntnall  v.  R.  Co.,  32  Vt.  665.  Where  the 
connecting  carrier  refuses  or  unreasonably 
delays  to  accept  goods,  the  original  carrier 
while  so  holding  them  is  a  carrier,  and  the 
liability  as  such  continues  until  they  are 
warehoused;  Bennltt  V.  Ry.  Co.,  40  Mo.  App. 
656. 

A  contract  to  transport  goods  from  or  to 
points  not  on  the  carrying  line,  and  without 
the  state  by  which  it  is  incorporated,  is  held 
to  be  good;  Perkins  v.  R.  Co.,  47  Me. 
Am.  Dec.  507;  Noyes  v.  R  Co..  27  vt.  110; 
Weed  v.  R.  Co..  19  Wend.  (X.  Y.)  534;  Redf. 
Railw.  Cases  110;  Nashua  Lock  Co.  v.  R.  Co., 
48  N.  H.  339,  2  Am.  Rep.  242;  contra,  Nau- 
gatuck  R.  Co.  v.  Button  Co.,  24  Conn. 
At  common  law  a  carrier,  unless  tl 
a   special    contract   is   only    bound   to   carry 
over  its  own  line  and  deliver  to  a  connect- 
ing  carrier:     Gulf,   C.   ft    S.   F.    Ry.   Co.    v. 
State,  56  Tex.  Civ.  App.  353,  120  s.  w.  102S. 
If  it  accepts   goods  marked   for  a  point  be- 
yond   its    own    line,    it    is  bound    to  carry 
and   deliver   them   at    that    place;     v 
R.  Co.  v.  Thomas,  222  111.  337,  7^  N.  B    777 
7   L.   R.    A.    (N.    S.)    104;    and   when    it   has 
so    contracted,    all    connecting    lines    are   its 

5,   for  whose   default   it   Is   respoi 
Schwartz  v.    R  Co.,  155  Cal.  742.  103  Pac 
L96;    and  if  loss  occurs  through  the  negli- 
gence of  the  connecting  carrier  or  while  in 

ssession  the  original  carrier  is  liable; 
Whitna.k  v.  R.  Co..  164,  118  N.  W. 

67,  L9  L.  P.  A.  (N.  S.)  LOU,  !•"'"  Am.  St.  Rep. 
692;  St.  Louis,  L  M.  ft  S.  Ry.  Co.  v.  Ran- 
dle,  85  Ark.  127.  107  s.  w.  669;  the  inter- 
change of  traffic  between  two  connecting 
carriers  is,  in  the  absence  of  statutory  pro- 


COMMON  CARRIERS 


558 


COMMON  CARRIERS 


vision,  a  matter  of  contract,  and  the  courts 
have  no  power  to  compel  such  interchange 
of  traffic;  Central  Stock  Yards  Co.  v.  R. 
Co.,  118  Fed.  113,  55  C.  C.  A.  63,  63  L.  R.  A. 
213,  affirmed  in  Central  Stock  Yards  Co.  v. 
R.  Co.,  192  U.  S.  56S,  24  Sup.  Ct.  339,  48  L. 
Ed.  5G5 ;  when  goods  arrive  at  the  end  of 
the  original  carrier's  line,  it  is  the  duty  of 
such  carrier  to  deliver  them  to  the  succeed- 
ing carrier  or  notify  it  of  their  arrival ;  Texas 
&  P.  R.  Co.  v.  Reiss,  183  U.  S.  621,  22  Sup. 
Ct.  252,  46  L.  Ed.  35S ;  in  the  absence  of 
such  notice,  the  original  carrier  is  not  re- 
lieved of  his  liability  as  insurer;  id.  If  the 
original  carrier  still  continues  to  have  con- 
trol over  the  goods  and  has  a  choice  as  be- 
tween connecting  carriers,  his  liability  is 
not  terminated  until  actual  delivery  of  the 
goods  to  one  of  the  connecting  carriers; 
Texas  &  P.  R.  Co.  v.  Callender,  1S3  IT.  S. 
632.  22  Sup.  Ct.  257,  46  L.  Ed.  362.  The 
original  carrier's  duty  is  not  discharged  by 
tendering  the  goods  in  an  unfit  condition 
whether  such  condition  arises  from  an  in- 
jury received  in  its  possession  or  from  some 
unusual  cause;  Buston  v.  R.  Co.,  116  Fed. 
235,  affirmed  in  119  Fed.  808,  56  C.  C.  A. 
320;  the  receipt  of  perishable  goods  in- 
volves the  duty  of  the  carrier  to  provide  a 
refrigerator  car  and  to  ice  it  properly,  not 
only  on  its  own  line,  but  on  the  connecting 
carrier's  route ;  Pennsylvania  R.  Co.  v.  Prod- 
uce Co.,  Ill  Md.  356,  73  Atl.  571.  If  the 
connecting  carrier  negligently  detains  goods 
at  the  connecting  point  until  they  are  over- 
taken by  a  flood,  the  original  carrier  is  still 
liable  for  the  loss;  Wabash  R.  Co.  v. 
Sharpe,  76  Neb.  424,  107  N.  W.  758,  124  Am. 
St.  Rep.  823 ;  a  shipper  may  demand  delivery 
of  the  goods  at  the  connecting  point  of  two 
routes  by  paying  the  charges  of  the  first 
carrier ;  Wente  v.  R.  Co.,  79  Neb.  179,  115  N. 
W.  859,  15  L.  R.  A.  (N.  S.)  756. 

The  Carmack  Amendment  to  the  Inter- 
state Commerce  Act  makes  a  carrier  liable 
for  loss  beyond  its  own  lines  when  goods  are 
received  for  interstate  transportation.  It  is 
a  valid  exercise  of  the  commerce  power;  At- 
lantic Coast  Line  R.  Co.  v.  Mills,  219  TL  S. 
186,  31  Sup.  Ct.  164,  55  L.  Ed.  167,  31  L.  R. 
A.  (N.  S.)  7;  but  it  was  not  decided  there 
whether  a  carrier  can  be  compelled  to  ac- 
cept goods  for  transportation  beyond  its 
own  lines. 

The  agents  of  railway  and  steamboat  com- 
panies, will  bind  their  principals  to  the  full 
extent  of  the  business  intrusted  to  their 
control,  whether  they  follow  their  instruc- 
tions or  not;  Philadelphia  &  R.  R.  Co.  v. 
Derby,  14  How.  (U.  S.)  468,  483,  14  L.  Ed. 
502.  See  Jennings  v.  R.  Co.,  127  N.  Y.  438, 
28  N.  E.  394.  Nor  will  it  excuse  the  com- 
pany because  the  servant  or  agent  acted 
wilfully  in  disregard  of  his  instructions ; 
Weed  v.  R.  Co.,  5  Duer  (N.  Y.)  193;  Redf. 
Railw.  §  137,  and  cases  cited  in  notes. 

A    common    carrier    has    power   to    make 


reasonable  regulations  governing  the  man- 
ner and  place  in  which  it  will  receive  goods 
for  transportation  and  also  may  change  such 
regulations  upon  reasonable  notice  to  the 
public ;  Robinson  v.  R.  Co.,  129  Fed.  753,  64 
C.  C.  A.  281 ;  Piatt  v.  Lecocq,  158  Fed.  723, 
S5  C.  C.  A.  621,  15  L.  R.  A.  (N.  S.)  558.  It 
may  require  reasonable  assurance  of  the 
character  of  the  goods,  and  also  provide  for 
a  reasonable  inspection ;  Adams  Express 
Co  v.  Com.,  129  Ky.  420,  112  S.  W.  577,  18 
L.  R.  A.  (N.  S.)  11S2. 

A  stipulation  in  a  bill  of  lading  limiting 
the  time  within  which  claims  for  damage 
may  be  presented  is  valid,  provided  the  time 
fixed  is  reasonable;  Nashville,  C.  &  St.  L.  R. 
R.  v.  H.  M.  Long  &  Son,  163  Ala.  165,  50 
South.  130;  but  a  stipulation  of  ten  days  is 
not  reasonable  with  regard  to  injuries  to  live 
stock;  Wabash  R.  Co.  v.  Thomas,  222  111. 
337,  7S  N.  E.  777,  7  L.  R.  A.  (N.  S.)  104. 

Transportation  of  animals  is  common  car- 
riage; Swiney  v.  Exp.  Co.,  144  la.  342,  115 
N.  W.  212;  and  the  carrier  is  bound  to  care 
for  and  feed  them  in  transit;  Toledo,  W.  & 
W.  R.  Co.  v.  Hamilton,  76  111.  393 ;  Peck  v. 
R.  Co.,  138  la.  187,  115  N.  W.  1113,  16  L. 
R.  A,  (N.  S.)  883,  128  Am.  St.  Rep.  185.  A 
common  carrier  is  absolutely  liable  for  the 
destruction  by  fire  of  animals  while  in  its 
possession ;  Stiles,  Gaddie  &  Stiles  v.  R.  Co.s 
129  Ky.  175;  a  carrier  of  live  stock  is  lia- 
ble only  for  the  negligence  of  its  servants, 
but  not  as  insurer ;  Cash  v.  Wabash  R.  Co., 
SI  Mo.  App.  109;  Rick  v.  Wells  Fargo  Co., 
39  Utah,  130,  115  Pac.  991 ;  he  is  not  liable 
for  loss  due  to  the  natural  propensities  and 
habits  of  the  stock;  Texas  Cent.  R.  Co.  v. 
Hunter  &  Co.,  47  Tex.  Civ.  App.  190,  104 
S.  W.  1075;  Summerlin  v.  Ry.,  56  Fla.  687, 
47  South.  557,  19  L.  R.  A.  (N.  S.)  191,  131 
Am.  St.  Rep.  164;  where  trained  bears 
while  in  transit  injure  a  person,  the  carrier 
is  not  liable;  Molloy  v.  Starin,  191  N.  Y. 
21,  83  N.  E.  588,  16  L.  ,R.  A.  (N.  S.)  445,  14 
Ann.  Cas.  57.  It  is  the  duty  of  the  carrier 
to  provide  a  safe  pen  for  unloading  stock  at 
a  junction  point;  El  Paso  &  N.  E.  R.  Co.  v. 
Lumbley,  56  Tex.  Civ.  App.  418,  120  S.  W. 
1050;  and  they  must  be  kept  in  a  reason- 
ably safe  condition ;  St.  Louis  &  S.  F.  R. 
Co.  v.  Beets,  75  Kan.  295,  S9  Pac.  6S3,  10 
L.  R.  A.  (N.  S.)  571.  If  the  carrier  accept 
live  stock  for  transportation,  he  is  bound  to 
exercise  at  least  ordinary  care ;  German  v. 
R.  Co.,  38  la.  127;  Gulf,  C.  &  S.  F.  Ry.  Co. 
v.  Ellison,  70  Tex.  491,  7  S.  W.  785;  St. 
Louis,  I.  M.  &  S.  Ry.  Co.  v.  Jones  (Tex.)  29 
S.  W.  695;  Duvenick  v.  R.  Co.,  57  Mo.  App. 
550;  Norfolk  &  W.  R.  Co.  v.  Harnian,  91 
Va.  601,  22  S.  E.  490,  44  L.  iR.  A.  289,  50 
Am.  St.  Rep.  855;  Schaeffer  v.  R.  Co.,  168 
Pa.  209,  31  Atl.  1088,  47  Am.  St.  Rep.  884; 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Wilm,  9  Tex.  Civ. 
App.  161,  28  S.  W.  925 ;  Crow  v.  R.  Co.,  57 
Mo  App.  135.  The  burden  of  proof  is  on 
the  carrier  to  show  that  loss  or  injury  to  live 


COMMON  CARRIERS 


559 


COMMON  CARRIERS 


stock  resulted  from  an  excepted  cause,  when 
shipped  under  special  contract,  containing 
exemptions  from  liability;  Johnson  v.  R. 
Co.,  69  Miss.  191,  11  South.  104,  30  Am.  St. 
Rep.  534. 

UndeJ  the  act  of  congress  of  June  29,  1900, 
common  carriers  by  land  and  water  carry- 
ing live  stock  in  interstate  commerce  are 
forbidden  to  confine  them  mere  than  28 
consecutive  hours  "without  unloading  the 
same  in  a  humane  manner  into  properly 
equipped  pens  for  rest,  water  and  feeding, 
for  a  period  of  at  least  5  consecutive  hours, 
unless  prevented  by  storm  or  by  other  ac- 
cidental or  unavoidable  causes  which  can- 
not be  anticipated  or  avoided  by  the  exer- 
cise of  due  diligence  and  foresight,"  except 
that  sheep  need  not  be  unleaded  in  the  night 
time,  and  it  is  provided  that  upon  the  writ- 
ten request  of  the  owner,  etc.,  of  a  partic- 
ular shipment,  separate  from  any  bill  of 
lading  or  other  railroad  form,  the  time  of 
confinement  may  be  extended  to  36  hours. 
Animals  so  unloaded  shall  be  properly  fed 
and  watered  either  by  the  owner  or  cus- 
todian, or,  in  case  of  his  default,  by  the  car- 
rier at  the  reasonable  expense  of  the  owner 
or  custodian,  for  which  the  carrier  shall 
have  a  lien  upon  the  animals,  but  the  owner 
or  shipper  shall  have  the  right  to  furnish 
food  if  he  so  desires.  Section  3  provides 
that  where  animals  are  carried  in  such  way 
that  they  have  proper  food,  water,  space 
and  opportunity  to  rest,  they  need  not  be 
unloaded. 

A  railroad  company  which  delivers  the 
cars  to  a  connecting  carrier  within  the  2S 
hours  is  relieved  from  responsibility;  U.  S. 
v.  Southern  Pac.  Co.,  157  Fed.  459;  Mis- 
souri, K.  &  T.  Ry.  Co.  v.  U.  S.,  178  Fed.  15, 
101  C.  C.  A.  143. 

That  the  company  had  made  proper  rules 
requiring  employees  to  comply  with  the  act 
is  no  defense;  U.  S.  v.  Atlantic  Coast  Line 
R.  Co.,  173  Fed.  764,  98  C.  C.  A.  110;  nor 
is  pressure  of  business;  U.  S.  v.  Union  Pac. 
R.  Co.,  169  Fed.  65,  94  C.  C.  A.  433.  It  is 
no  defense  that  the  violation  was  by  reason 
of  the  oversight  of  a  train  dispatcher,  con- 
trary to  the  rules  and  orders ;  Montana 
Cent.  Ry.  Co.  v.  U.  S.,  164  Fed.  400,  90  C.  C. 
A.  3S8. 

An  accidental  or  unavoidable  cause,  as 
mentioned  in  the  act,  which  cannot  be  an- 
ticipated or  avoided,  etc.,  is  one  which  can- 
not be  avoided  by  that  degree  of  care  which 
the  law  requires  of  every  one  under  the  cir- 
cumstances  of  the  particular  case;  Mis- 
souri, K.  &  T.  R.  Co.  v.  U.  S.,  178  Fed.  15, 
101  C.  C.  A.  143. 

Failure  to  provide  unloading  stations,  con- 
gested traffic,  conditions  reasonably  to  be 
anticipated  from  past  experience,  and  break- 
downs resulting  from  negligent  operation 
and  omission  to  furnish  properly  equipped 
and  inspected  cars,  etc.,  are  not  accidental 
or  unavoidable  causes  which  will  relieve  the 


carrier;  U.  S.  v.  R.  Co.,  166  Fed.  100.  A 
company  must  know  how  long  a  connecting 
line  has  kept  animals  without  food  or  water 
and  must  learn  such  fact  at  its  peril;   r.  s. 

I:\ards  Co.,  181  I •'• 
tion  of  compliance  with  the  act  of 
of  the  written  request  for  t!. 
the  period  of  confinement  is  for  I 
Missouri,   K.  &  T.    Ry.  Co.  v.   I.  S,    IT 
15,  101  C.  C.  A.  143. 

The  act   is    not  criminal;   it  does   not   re- 
quire proof  of  malevolent  purpose,  bul 
that  animals  were  knowingly  and    ; 
ally  confined   beyond  the  prescribed   period; 
D.  S.  v.  stockyards  Co.,  162  Fed.  556. 

There  is  a  separate  offense  as  to  each 
lot  of  cattle  shipped  simultaneously  as  soon 
as  the  prescribed  time  expires  as  to  each 
lot,  regardless  of  the  number  of  shippers. 
trains  or  <-,irs.  The  aggregate  sum  of  the 
possible  penalties  is  the  amount  In  dispute 
for  jurisdictional  purposes;  Baltimore  & 
O.  S.  W.  R.  Co.  V.  U.  S.,  220  U.  S.  94,  XI 
Sup.  Ct.  36S,  55  L.  Ed.  384. 

The  carrier  has  an    insurable   interest   In 

the  goods,  both  in  regard  to  tire  and  marine 

ts,    measured    by    the    extent    of    his 

liability  for  loss  or  damage;  Chase  v.  Ins. 

Co.,  12  Barb.  (N.  Y.)  595. 

The  carrier  is  not  bound,  unless  he  so 
stipulate,  to  deliver  goods  by  a  particular 
time,  or  to  do  more  than  to  deliver  in  a 
reasonable  time  under  all  the  circumstances 
attending  the  transportation;  5  M.  &  G.  553  : 
Broadwell  v.  Butler,  6  McLean  296,  Fed. 
Oas.  No.  1,910;  Wibert  v.  R.  Co.,  12  N.  v. 
245.  See  15  W.  R.  792;  L.  R.  9  C.  P.  325; 
McLaren  v.  R.  Co.,  23  Wis.  138;  Illinois 
Central  R.  Co.  v.  Waters.  41  111.  73;  Daw- 
son v.  R.  Co.,  79  Mo.  296.  The  implied 
agreement  of  a  common  carrier  is  to  deliver 
at  the  destination  within  a  reasonable  time; 
Chicago  &  Alton  R.  Co.  v.  Kirov,  225  U.  S. 
155,  32  Sup.  Ct.  64S,  56  L.  Ed.  1033;  Mis- 
souri Pac.  Ry.  Co.  v.  Implement  Co.,  73 
Kan.  295.  85  Pac.  40S,  S7  Pac.  80,  6  L.  R.  A. 
(X.  S.)  1058,  117  Am.  St.  Rep.  468,  9  Ann. 
Cas.  790;  interference  by  strikers  excuses 
delay:  Sterling  v.  R.  Co.,  38  Tex.  Civ.  App. 
451,  S6  S.  W.  655;  but  where  the  carrier's 
facilities  were  overtaxed  by  an  unusual 
press  of  business,  which  it  knew  of  at  the 
time  of  the  shipment,  the  consequent  delay 
in  delivery  is  not  excused;  Yazoo  &  M.  V. 
R.  Co.  v.  Blum  Co.,  88  Miss  ISO,  40  South. 
748,  10  L.  R.  A.  (N.  s.i  432;  for  failure  to 
deliver  promptly  theatrical  scenery  and 
properties,  the  carrier  is  liable  for  the  value 
of  the  ordinary  earnings,  less  the  expenses 
which  the  owner  has  saved  by  inability  to 
exhibit:  Weston  v.  R.  Co.,  190  Mass.  2 
X.  K.  1050,  4  L.  R.  A.  (X.  S.)  569,  112  Am. 
St.  Rep.  330,  5  Ann.  A  carrier  is 

liable  for  delay  if  it  knows  and  does  not 
disclose  the  probability  of  it:  Thomas  v.  R. 
Co.,  63  Fed.  200;  at  least  as  held  by  some 
courts,    when    the    shipper    does    not    know 


COMMON  CARRIERS 


560 


COMMON  CARRIERS 


the  circumstances ;  Nelson  v.  R.  Co.,  2S  Mont. 
297,  72  Pac.  642.'  What  is  a  reasonable  time 
is  to  be  decided  by  the  jury;  Nettles  v.  R. 
Co.,  7  Rich.  (S.  C.)  190,  62  Am.  Dec.  409 ;  32 
L.  J.  Q.  B.  292. 

But  if  the  carrier  contract  specially  to 
deliver  in  a  prescribed  time,  he  must  per- 
form his  contract,  or  suffer  the  damages 
sustained  by  his  failure;  Harmony  v.  Bing- 
ham, 12  N.  Y.  99,  62  Am.  Dec.  142;  2  B.  & 
P.  416;  Knowles  v.  Dabney,  105  Mass.  437; 
Ball  v.  R.  Co.,  S3  Mo.  571. 

He  is  liable,  upon  general  principles, 
where  the  goods  are  not  delivered  through 
his  default,  to  the  extent  of  their  market 
value  at  the  place  of  their  destination; 
Hand  v.  Baynes,  4  Whart.  (Pa.)  204,  33  Am. 
Dec.  54;  Grieff  v.  Switzer,  11  La.  Ann.  324; 
2  B.  &  Ad.  932 ;  Newell  v.  Smith,  49  Vt.  255 ; 
Rankin  v.  R.  R.,  55  Mo.  167.  See,  also, 
Gillingham  v.  Dempsey,  12  S.  &  R.  (Pa.) 
183;  Ringgold  v.  Haven,  1  Cal.  108. 

Receipt  of  goods  and  failure  to  deliver 
raises  a  presumption  against  the  carrier; 
Everett  v.  R.  Co.,  13S  N.  C.  68,  50  S.  E.  557, 
1  L.  R.  A.  (N.  S.)  985;  but  the  carrier  is  not 
liable  for  failure  to  deliver  a  carload  of 
fiuit  where  municipal  authorities  forbid  the 
delivery  on  account  of  quarantine;  Alabama 
&  V.  R.  Co.  v.  Tirelli,  93  Miss.  797,  48  South. 
9G2,  21  L.  R.  A.  (N.  S.)  731,  136  Am.  St.  Rep. 
559,  17  Ann.  Cas.  879. 

If  the  goods  are  only  damaged,  or  not 
delivered  in  time,  the  owner  is  bound  to 
receive  them.  He  will  be  entitled  to  dam- 
ages, but  cannot  repudiate  the  goods  and 
recover  from  the  carrier  as  for  a  total  loss; 
Shaw  v.  R.  Co.,  5  Rich.  (S.  C.)  462,  57  Am. 
Dec.  768;  Scovill  v.  Griffith,  12  N.  Y.  509; 
Hackett  v.  R.  R.,  35  N.  H.  390;  Robertson 
v.  Steamship  Co.,  60  N.  Y.  Super.  Ct.  132; 
Chesapeake  &  O.  R.  Co.  v.  Saulsbury,  126 
Ky.  179,  103  S.  W.  254,  12  L.  R.  A.  (N.  S.) 
431. 

Where  a  carrier  is  actually  deceived  as 
to  the  contents  of  a  package  containing  in- 
toxicating liquors,  which  it  transports  into 
local  option  territory,  it  cannot  be  punished 
under  a  statute  forbidding  such  transpor- 
tation; Adams  Exp.  Co.  v.  Com.,  129  Ky. 
420,  112  S.  W.  577,  18  L.  R.  A.  (N.  S.)  1182 ; 
and  to  protect  itself,  it  may  require  rea- 
sonable assurance  that  the  goods  are  not 
contraband,  and  provide  for  a  reasonable 
inspection  when  practicable;  id. 

If  a  shipper  is  guilty  of  fraud  in  misrep- 
resenting the  nature  or  value  of  the  article, 
he  forfeits  his  right  to  indemnity,  because 
he  has  attempted  to  deprive  the  carrier 
of  the  right  to  be  compensated  in  propor- 
tion to  the  value  of  the  article  and  the  risk 
assumed,  and  has  tended  to  lessen  the  vigi- 
lance of  the  carrier ;  Hart  v.  R.  Co.,  112  U. 
S.  331,  5  Sup.  Ct.  151,  28  L.  Ed.  717;  in  such 
case  he  cannot  hold  the  carrier  for  more 
than  the  apparent  value,  or  the  value  stated 
by  him;   id.;   Georgia   S.  &  F.  Ry.   Co.   v. 


Johnson,  King  &  Co.,  121  Ga.  231,  48  S.  E. 
807;  Graves  v.  R.  Co.,  137  Mass.  33,  50  Am. 
Rep.  2S2 ;  Rowan  v.  Wells,  Fargo\  &  Co.,  80 
App.  Div.  31,  80  N.  Y.  Supp.  226.  This  rule 
has  been  applied  to  one  shipping  a  valuable 
horse  as  a  horse  of  ordinary  value  at  a  rate 
applicable  to  the  latter;  Duntley  v.  R.  Co., 
66  N.  H.  263,  20  Atl.  327,  9  L.  R.  A.  449,  49 
Am.  St.  Rep.  610;  one  concealing  valuable 
memorandum  books  in  clothing  shipped  as 
"worn  clothing;"  Savannah,  F.  &  W.  Ry. 
Co.  v.  Collius,  77  Ga.  376,  3  S.  E.  416,  4 
Am.  St.  Rep.  87;  one  delivering  a  package 
of  the  value  of  $234,000,  and  representing  its 
value  as  $1,000,  paying  for  the  latter  valua- 
tion; U.  S.  Exp.  Co.  v.  Koerner,  65  Minn. 
540,  6S  N.  W.  181,  33  L.  R.  A.  600;  to  one 
shipping  jewelry  in  a  package  as  household 
goods;  Charleston  &  S.  Ry.  Co.  v.  Moore, 
80  Ga.  522,  5  S.  E.  769.  It  has  been  held 
that  in  such  case  the  carrier  is  relieved 
from  all  liability;  Shackt  v.  R.  Co.,  911 
Tenn.  658,  30  S.  W.  742,  28  L.  R.  A.  176; 
Southern  Exp.  Co.  v.  Wood,  98  Ga.  26S,  25 
S.  E.  436.  On  the  other  hand,  it  has  been 
held  that,  where  fraud  was  practiced  in 
order  to  get  a  lower  rate,  the  carrier  would 
not  be  bound  by  the  rate  given,  but  that 
in  such  case  the  carrier's  liability  was  not 
lessened;  Lucas  v.  Ry.  Co..  112  la.  594,  84 
N.  W.  673 ;  Rice  v.  R.  Co.,  3  Mo.  App.  27.  A 
mere  failure  of  the  shipper,  unasked,  to 
state  the  value,  is  not,  as  a  matter  of  law,  a 
fraud  upon  the  carrier  which  defeats  all 
right  of  recovery;  New  York,  C.  &  H.  R.  R. 
Co.  v.  FralofE,  100  U.  S.  24,  25  L.  Ed.  531; 
but  other  cases  have  imposed  upon  the 
shipper  the  duty  of  disclosing  to  the  car- 
rier that  the  article  is  valuable ;  White  v. 
Cable  Co.,  25  App.  D.  C.  364;  Gilman  v. 
Telegraph  Co.,  48  Misc.  372,  95  N.  Y.  Supp. 
564.  Where  the  value,  when  not  stated, 
was,  by  the  company's  regulation,  placed 
at  $50,  this  limit  was  enforced;  Magnin  v. 
Dinsmore,  70  N.  Y.  410,  26  Am.  Rep.  60S. 
See  a  full  note  in  23  L.  R.  A.  (N.  S.)  745. 
But  in  Pennsylvania  contracts  limiting  lia- 
bility for  the  full  value  are  held  void; 
Wright  v.  Exp.  Co.,  230  Pa.  635,  79  Atl.  760, 
where  the  value  was  greatly  in  excess  of  the 
$50  limit  and  the  bill  of  lading  was  stamped 
"value  asked  and  not  given." 

Where  an  express  company  fixes  its  charg- 
es in  proportion  to  the  value  of  the  property 
shipped  and  the  shipper  has  knowledge  of 
same,  in  case  of  loss,  the  shipper  is  limited 
to  the  value  stated,  and  this  is  not  a  viola- 
tion of  the  act  of  June  29,  1906,  which  states 
that  a  carrier  in  an  interstate  shipment 
cannot  limit  his  liability;.  Adams  Express 
Co.  v.  Croninger,  226  II  S.  491,  33  Sup.  Ct. 
148,  57  L.  Ed.  314. 

For  the  authorities  in  the  civil  law  on  the 
subject  of  common  carriers,  the  reader  is  re- 
ferred to  Dig.  4.  9.  1  to  7;  Pothier,  Pand. 
lib.  4,  t.  9;  Domat,  liv.  1,  t.  16,  ss.  1  and  2; 
Pardessus,  art.  537  to  555;  Code  Civil,  art. 


COMMON  CARRIERS 


561 


COMMON  CARRIERS 


1782,  1786,  1952;  Moreau  &  Carlton,  Las  Par- 
tidus,  c.  5,  t.  8,  L  26;  Erskine,  Inst  b.  2,  t. 
1,  §  28;  1  Bell,  Comm.  465;  Abbott,  Shipp. 
part  3,  c.  3,  §  3,  note  (1);  1  Voet,  Ad  rand. 
lib.  4,  t.  9;  Merlin,  Rep.  Voiture,  Toituricr; 
Goirand,  Code  of  Commerce  (18S0)  163. 
See  Common  Carriers  of  Passi:  • 
Baggage;  Bailments;  Lien;  Express  Com- 
panies; Passenger;  Ticket;  Sleeping  Car; 
Interstate  Commerce  Commission. 

COMMON  CARRIERS  OF  PASSENGERS. 

Common  carriers  of  passengers  are  such  as 
undertake  for  hire  to  carry  all  persons  in- 
differeutly  who  may  apply  for  passage,  so 
long  as  there  is  room,  and  there  is  no  legal 
excuse  for  refusing.  Thomps.  Carriers  of 
Passengers  26,  n.  §  1 ;  Vinton  v.  R.  Co.,  11 
Allen  (Mass.)  304,  87  Am.  Dec.  714;  Hollis- 
ter  v.  Nowlen,  19  Wend.  (N.  Y.)  239,  32  Am. 
Dec.  455;  Bennett  v.  Dutton,  10  N.  H.  486; 
Galena  &  C.  U.  R.  Co.  v.  Yarwood,  15  111. 
472  ;  Jencks  v.  Coleman,  2  Sumn.  221,  Fed. 
Cas.  No.  7,258 ;    3  B.  &  B.  54. 

A  company  owning  parlor  and  sleeping 
cars,  who  enter  into  no  contract  of  carriage 
with  the  passenger,  but  only  give  him  su- 
perior accommodations,  was  formerly  held 
not  a  common  carrier;  Pullman  Palace 
Car  Co.  v.  Smith,  73  111.  360,  24  Am.  Rep. 
258;  Duval  v.  Palace  Car  Co.,  62  Fed.  265, 
10  C.  C.  A.  331,  33  L.  R.  A.  715.  See  Parlor 
Cars;  Sleeping  Cars.  A  street  railway 
company  is  a  common  carrier  of  passengers 
and  liable  as  such  on  common-law  prin- 
ciples; Spellman  v.  Transit  Co.,  36  Neb.  890, 
55  N.  W.  270,  20  L.  R.  A.  316,  38  Am.  St. 
Rep.  753.     See  Street  Railways. 

Common  earners  may  excuse  themselves 
when  there  is  an  unexpected  press  of  travel 
and  all  their  means  are  exhausted.  But 
where  it  appears  that  there  is  usually  a 
large  crowd  at  a  particular  station  for  a 
particular  train,  it  is  evidence  of  negligence 
on  the  part  of  the  carrier  in  failing  to  an- 
ticipate the  large  crowd  and  take  precau- 
tions to  protect  intending  passengers  from 
injury  therefrom;  Kuhlen  v.  Ry.  Co.,  193 
Mass.  341,  79  N.  E.  815,  7  L.  R.  A.  (N.  S.) 
729.  118  Am.  St.  Rep.  516.  And  see  Bennett 
v.  Dutton,  10  N.  H.  486;  and  they  may  for 
good  cause  exclude  a  passenger:  thus,  they 
are  not  required  to  carry  drunken  and  dis- 
orderly persons,  or  one  affected  with  a  con- 
tagious  disease,  or  those  who  come  on  board 
to  assault  passengers,  commit  a  crime,  flee 
from  justice,  gamble,  or  interfere  with  the 
proper  regulations  of  the  carrier,  and  dis- 
turb the  comfort  of  the  passengers;  Thurs- 
ton v.  R.  Co.,  4  Dill.  321,  Fed.  Cms.  No. 
14,019;  Pearson  v.  Duane.  4  Wall.  (U.  S.) 
605,  18  L.  Ed.  447;  O'Brien  v.  R.  Co.,  15 
Gray  (Mass.)  20,  77  Am.  Dec.  347;  Pitts- 
burgh, C.  &  St.  L.  Ry.  Co.  v.  Vandyne,  57 
Ind.  576,  26  Am.  Rep.  68;  Pittsburgh  &  C. 
R.  Co.  v.  Pillow,  76  Pa.  510,  IS  Am.  Rep. 
424;  Railway  Co.  v.  Valleley,  32  Ohio  St. 
Bouv.— 36 


345,  30  Am.  Rep.  601 ;    or  one  whose  pur- 
pose   is    to    injure    the    carrier's    busi 
Jencks  v.   Coleman,  2  Sumn.  221,  Feu. 
No.    7,258;    Barney    v.    Martin,    11    Blatchf. 
L'.;:;,  Fed.  Caa.  No.  1,030;  but  if  a  carrier  re- 
ceives   a    passenger,    knowing    that   a    good 
cause    exists    for    his    exclusion,    he   CJ 
afterwards  eject  him  for  such  can 
son  v.  Duane,  4  Wall.  (U.  S.)  Gu5,  IS  I. 
447;    Tarbell  v.  R.  Co.,  34  Cal.  616.     Where 
one  rightfully  on  a  train  as  a  passenger  is 
put  oh',  it  is  of  itself  a  good  cause  of  action 
against    the    company    irrespective    of    any 
al    injury    that    may    have    resulted; 
New  York,  L.  E.  &  W.  R.  Co.  v.  Winter,  14:J 
U.   S.  60,  12  Sup.  Ct.  350.  36  L.  Ed.  71.     It 
is    not    liable    for    injuries    resulting    from 
one  trying  to  steal  a  ride  on  a  freight  train ; 
Planz   v.   R.   Co.,   157   Mass.  377;    32   N.  B. 
356,  17  L.  R.  A.  835. 

Passenger-carriers  are  not  held  respon- 
sible as  insurers  of  the  safety  of  their  pas- 
sengers, as  common  carriers  of  goods  are. 
But  they  are  bound  to  the  very  highest  de- 
gree of  care  and  watchfulness  in  regard  to 
all  their  appliances  for  the  conduct  of  their 
business ;  so  that,  as  far  as  human  fore- 
sight can  secure  the  safety  of  p 
there  is  an  unquestionable  right  to  demand 
it  of  all  who  enter  upon  the  business  of 
passenger-carriers;  Spellman  v.  Rapid 
Transit  Co.,  36  Neb.  S90,  55  N.  W.  270,  20 
L.  R.  A.  316,  3S  Am.  St.  Rep.  753:  I 
Central  R.  Co.  v.  Stuart,  1  Tex.  Civ.  App. 
<;4J.  20  S.  W.  902;  Chicago.  P.  &  St.  L.  R. 
Co.  v.  Lewis.  145  111.  67,  33  N.  E.  960 :  L.  R. 
9  Q.  B.  122;  2  Q.  B.  D.  377:  White  v.  11. 
Co.,  136  Mass.  321;  Pennsylvania  Co.  v. 
Roy,  102  U.  S.  451.  26  L.  Ed.  141;  Phila- 
delphia &  R.  R.  Co.  v.  Anderson,  94  Pa.  351. 
30  Am.  Rep.  7S7.  They  are  liable  only  for 
injuries  resulting  from  their  negligence; 
[1901]  A.  C.  496;  and  such  negligence  must 
be  the  proximate  cause  of  the  injury;  Be- 
vard  v.  L.  Traction  Co.,  74  Neb.  802,  105  X. 
W.  635,  3  L.  R.  A.  (N.  S.)  318.  A  carrier  is 
not  permitted  to  contract  against  liability 
for  negligence,  but  a  private  carrier  may. 
by  special  contract;  Cleveland,  C,  C.  &  St. 
L.  R.  Co.  v.  Henry,  170  [nd.  0!.  83  N.  E. 
710.  Where  a  conductor  negligently  assists 
a  passenger  from  the  car  to  the  station  plat- 
form, the  company  is  responsible  for  inju- 
ries resulting  therefrom;  Hanlon  v.  R.  Co.. 
1S7  N.  Y.  7.;.  79  X.  E.  846,  10  L.  R.  A.  I 
411,  110  Am.  St.  Rep.  591,  10  Ann. 
and  even  carrying  a  passenger  at  r< 
fare  does  not  entitle  the  carrier  to  stipulate 
for  an  exemption  from  liability  for  negli- 
:  Pittsburgh.  C,  C.  &  St.  L.  R.  Co.  v. 
Higgs,  165  End.  694,  76  N.  E.  299,  4  L.  R.  A. 
<X.  S.)  1081. 

A  state  may  by  statute  limit  the  right  of 
recovery  for  injuries  to  certain  classes  of 
persons;  Martin  v.  R.  Co..  203  U.  S.  2S4. 
27   Sup.  Ct.  100,  51   L.  Ed.  184. 

It   is   not    responsible    to    persons    board- 


COMMON  CARRIERS 


562 


COMMON  CARRIERS 


ing  trains  to  assist  passengers;  Hill  v.  R. 
Co.,  124  Ga.  243,  52  S.  E.  651,  3  L.  R.  A.  (N. 
S.)  432;  to  purchase  fruit  from  one  not  in 
the  employ  of  the  railroad  company ;  Peter- 
son v.  R.  Co.,  143  N.  C.  260,  55  S.  E.  61S,  8 
L.  R.  A.  (N.  S.)  1240,  118  Am.  St  Rep.  799 ; 
or  to  speak  to  a  passenger  thereon ;  Bullock 
v.  R.  Co.  (Tex.)  55  S.  W.  184 ;  and  it  owes 
no  duty  to  them. 

Where  an  injury  occurs  on  cars  chartered 
by  an  association  or  individual,  the  carrier 
is  liable  to  a  passenger  thereon  as  in  other 
cases ;  Clerc  v.  R.  &  S.  S.  Co.,  107  La.  370, 
31  South.  886,  90  Am.  St.  Rep.  319;  Estes 
v.  R.  Co.,  110  Mo.  App.  725,  S5  S.  W.  627; 
Collins  v.  R.  Co.,  15  Tex.  Civ.  App.  169,  39 
S.  W.  643;  and  so  where  such  a  passenger 
has  been  ejected  from  such  a  train ;  Kirk- 
land  v.  R.  Co.,  79  S.  C.  273,  60  S.  E.  668, 
128  Am.  St.  Rep.  848.  Where  a  train  is 
signalled  at  a  section  house,  which  is  not  a 
regular  stopping-place,  and  a  person  boards 
it  without  any  one's  knowledge,  and  in  do- 
ing so  is  injured,  the  carrier  is  not  liable; 
Georgia  Pac.  R.  Co.  v.  Robinson,  68  Miss. 
643,  10  South.  60. 

The  passenger  must  be  ready  and  willing 
to  pay  such  fare  as  is  required  by  the  es- 
tablished regulations  of  the  carriers  in  con- 
formity with  law.  But  an  actual  tender  of 
fare  or  passage-money  does  not  seem  requi- 
site in  order  to  maintain  an  action  for  an 
absolute  refusal  to  carry,  and  much  less  is 
it  necessary  in  an  action  for  any  injury  sus- 
tained; 6  C.  B.  775;  2  Kent  598.  The  rule 
of  law  is  the  same  in  regard  to  paying  fare 
in  advance  that  it  is  as  to  freight,  except 
that,  the  usage  in  the  former  case  being  to 
take  pay  in  advance,  a  passenger  is  expect- 
ed to  have  procured  his  ticket  before  he  had 
taken  passage. 

It  is  the  carrier's  duty  to  maintain  safe 
stations  and  approaches,  whether  on  their 
own  premises  or  on  another's  and  main- 
tained by  them;  Delaware,  L.  &  W.  R.  Co. 
v.  Trautwein,  52  N.  J.  L.  169,  19  Atl.  178, 
7  L.  R.  A.  435,  19  Am.  St.  Rep.  442 ;  .Tobin 
v.  R.  Co.,  59  Me.  183,  8  Am.  Rep.  415;  or 
even  where  maintained  by  another;  Cotant 
v.  R.  Co.,  125  la.  46,  99  N.  W.  115,  69  L. 
R.  A.  982 ;  Gulf,  C.  &  S.  F.  R.  Co.  v.  Glenk, 
9  Tex.  Civ.  App.  599,  606,  30  S.  W.  278; 
Schlessinger  v.  R.  Co.,  49  Misc.  504,  98  N. 
Y.  Supp.  840;  Beard  v.  R.  Co.,  48  Vt.  101; 
but  in  such  case  it  is  suggested  that  the  li- 
ability is  rather  for  not  guarding  the  car- 
rier's premises  so  that  the  defective  ap- 
proach would  not  be  used ;  20  Harv.  L.  Rev. 
67.  If  there  are  two  approaches  and  one  is 
faulty,  the  carrier  is  liable  to  one  using  it; 
19  C.  B.  N.  S.  183.  In  making  platforms 
safe  the  care  required  is  not  the  highest  de- 
gree of  care,  but  ordinary  care ;  Pittsburgh, 
C,  C.  &  St.  Louis  R.  Co.  v.  Harris,  38  Ind. 
App.  77,  77  N.  E.  1051;  Chicago  &  N.  W. 
Ry.  Co.  v.  Scates,  90  111.  5S6 ;  but  they  have 
been  held  to  all  that  human   sagacity   and 


foresight  can  do  and  liable  for  slightest  neg- 
ligence; Zimmer  v.  R.  Co.,  36  App.  Div.  265, 
55  N.  Y.  Supp.  308;  Baltimore  &  O.  R.  Co. 
v.  Wightman's  Adm'r,  29  Gratt  (Va.)  431,  26 
Am.  Rep.  384. 

A  carrier  is  liable  for  severe  illness  of  a 
passenger  caused  by  negligent  failure  to 
heat  its  cars  properly ;  Atlantic  Coast  Line 
R.  Co.  v.  Powell,  127  Ga.  805,  56  S.  E.  1006, 
9  L.  R.  A.  (N.  S.)  769,  9  Ann.  Cas.  553. 

It  is  the  duty  of  a  steamship  company 
running  a  night  boat  to  supply  berths  to  un- 
objectionable passengers  in  the  order  of  ap- 
plication; Patterson  v.  S.  S.  Co.,  140  N.  C. 
412,  53  S.  E.  224.  And  they  must  absolutely 
protect  passengers  against  the  misconduct 
of  their  own  servants  engaged  in  executing 
the  contract;  New  Jersey  S.  B.  Co.  v. 
Brockett,  121  U.  S.  637,  7  Sup.  Ct.  1039,  30 
L.  Ed.  1049;  Haver  v.  R.  Co.,  62  N.  J.  L. 
282,  41  Atl.  916,  43  L.  R.  A.  84,  72  Am.  St 
Rep.  647;  but  if  an  employe  is  free  from 
liability  for  injury  done  a  passenger,  the 
carrier  is  also ;  New  Orleans  &  N.  E.  R. 
Co.  v.  Jopes,  142  U.  S.  18,  12  Sup.  Ct.  109, 
35  L.  Ed.  919.  Where  one  enters  a  ticket- 
office  to  buy  a  ticket  he  is  entitled  to  the 
protection  of  a  passenger,  although  the 
agent  refuse  to  sell  him  a  ticket ;  Norfolk 
&  W.  R.  Co.  v.  Galliher,  89  Va.  639,  16  S.  E. 
935. 

The  degree  of  speed  allowable  upon  a  rail- 
way depends  upon  the  condition  of  the  road; 
5  Q.  B.  747. 

Passenger-carriers  are  not  responsible 
where  the  injury  resulted  directly  from  the 
negligence  of  the  passenger;  Baltimore  & 
P.  R.  Co.  v.  Jones,  95  U.  S.  439,  24  L.  Ed.  506 ; 
Pennsylvania  R.  Co.  v.  Aspell,  23  Pa.  147, 
62  Am.  Dec.  323 ;   3  B.  &  Aid.  304. 

It  is  the  duty  of  a  street  railway -com- 
pany to  stop  when  a  passenger  is  about  to 
alight  and  not  to  start  again  until  he  has 
done  so ;  Washington  &  G.  R.  Co.  v.  Harmon, 
147  U.  S.  571,  13  Sup.  Ct.  557,  37  L.  Ed.  284; 
but  the  act  of  alighting  from  a  moving  car 
is  not  negligence  per  se,  regardless  of  at- 
tending circumstances ;  Duncan  v.  .Ry.  Co., 
48  Mo.  App.  659;  McCaslin  v.  Ry.  Co.,  93 
Mich.  553,  53  N.  W.  724 ;  Ober  v.  R.  Co.,  44 
La.  Ann.  1059,  11  South.  818,  32  Am.  St. 
Rep.  366;  Louisville,  N.  A.  &  C.  R.  Co.  v. 
Johnson,  44  111.  App.  56;  but  see  Brown  v. 
Barnes,  151  Pa.  562,  25  Atl.  144.  A  carrier 
is  not  liable,  because  it  fails  to  stop  a  train 
for  an  intending  passenger,  for  injury  to  his 
health,  where  he  later  procured  a  carriage 
to  drive  him  across  country  on  a  stormy 
night  to  avoid  delay  in  waiting  for  the  next 
train ;  International  &  G.  N.  R.  Co.  v.  Ad- 
dison, 100  Tex.  241,  97  S.  W.  1037,  8  L.  R. 
A.  (N.  S.)  8S0. 

Carriers  of  passengers  are  bound  to  carry 
for  the  whole  route  for  which  they  stipulate, 
and  according  to  their  public  advertisements 
and  the  general  usage  and  custom  of  their 
business;  Weed  v.  R.  Co.,   19   Wend.  (N.  Y.) 


COMMON  CARRIERS 


563 


COMMON  CARRIERS 


534;  8  E.  L.  &  Eq.  362.  The  carrier's  lia- 
bility extends  over  the  entire  route  for 
which  he  has  contracted  to  carry,  though 
the  destination  is  reached  over  conm-  l inc- 
lines ;  McElroy  v.  R.  Co.,  4  Cush.  (Mass.)  400, 
50  Am.  Dec.  794;  McLean  v.  Burbank,  11 
Minn.  277  (Gil.  189);  Candee  v.  R.  Co.,  21 
Wis.  5S2,  94  Am.  Dec.  5<;0.  But  the  carrier 
is  also  liable  on  whose  line  the  loss  or injury 
is  suffered;  Hood  v.  R.  Co.,  22  Conn 
Sprague  v.  Smith,  29  Vt.  421  ;  Briggs  v. 
Vanderbilt,  19  Barb.  (N.  Y.)  222. 

Where  a  passenger  holds  a  coupon  ticket 
(not  jointly  issued)  over  connecting  lines 
and  is  delayed  by  the  negligence  of  a  pre- 
ceding carrier,  a  succeeding  road  is  not 
bound  to  carry  him  on  such  ticket  if  it  has 
expired;  Brian  v.  'R.  Co.,  40  Mont.  109,  105 
Pac.  4S9,  20  Ann.  Cas.  311;  New  York,  L. 
E.  &  W.  R.  Co.  v.  Bennett,  50  Fed.  496,  1 
C.  C.  A.  511;  otherwise  where  it  was  a 
round  trip  ticket  and  the  initial  and  last 
carrier  were  the  same  and  the  delay  was  by 
an  intermediate  carrier,  the  ticket  being 
refused  on  the  return  by  the  last  carrier ; 
Stevens  v.  R.  Co.,  45  Tex.  Civ.  App.  19G,  100 
S.  W.  807.  Where  the  ticket  is  jointly  is- 
sued, the  passenger  is  entitled  to  complete 
his  journey  after  the  time  has  expired ; 
Gulf,  C.  &  S.  F.  R.  Co.  v.  Looney,  85  Tex. 
158,  19  S.  W.  1039,  16  L.  R.  A.  471,  34  Am. 
St.  Rep.  7S7.  If  all  the  lines  are  operated 
by  the  company  selling  the  ticket,  and  the 
passenger  commences  his  journey  within  the 
period,  he  may  complete  it  after  the  ticket, 
by  its  terms  has  expired ;    Brian  v.  R.  Co., 

40  Mont.  109,  105  Pac.  4S9,  20  Ann.  Cas.  311. 
Where  a  passenger  is  carried  some  dis- 
tance beyond  his  destination,  and  ejected 
against  his  protest,  being  compelled  to  walk 
back  to  the  station,  the  company  is  liable 
for  breach  of  contract;  Evansville  &  ,R.  R. 
Co.  v.  Kyte,  6  Ind.  App.  52.  32  N.  E.  1134; 
and  so  where  he  was  injured  in  walking 
back  on  a  dark  night;  Kentucky  &  I.  Bridge 
&  R.  R.  Co.  v.  Buckler,  125  Ky.  24,  100  S. 
W.  328,  8  L.  R.  A.  (N.  S.)  555,  128  Am.  St. 
Rep.  234. 

Passenger-carriers  may  establish  reason- 
able regulations  in  regard  to  the  conduct 
of  passengers,  and  discriminate  between 
those  who  conform  to  their  rules  in  regard 
to  obtaining  tickets,  and  those  who  do  not, 
— requiring  more  fare  of  the  latter ;  Chi- 
cago, B.  &  Q.  R.  Co.  v.  Parks,  18  111.  460,  68 
Am.  Dec.  562;  Hilliard  v.  Goold,  34  N.  H. 
230,  66  Am.  Dec.  765 ;  Stephen  v.  Smith,  120 
Vt  160;    Com.  v.  Power,  7  Mete.  (Mass.)  596, 

41  Am.  Dec.  405 ;  State  v.  Overton,  24  N.  J. 
L.  435,  61  Am.  Dec.  671 ;  29  E.  L.  &  Eq.  1  1."  ; 
Crocker  v.  R.  Co.,  24  Conn.  249;  Lake  Erie 
&  W.  R.  Co.  v.  Mays,  4  Ind.  App.  413,  30  N.  E. 
1106 ;  but  a  passenger  is  not  bound  to  com- 
ply with  the  rules  of  a  company  unless  they 
are  reasonable ;  Central  Railroad  &  Bank- 
ing Co.  v.  Strickland,  90  Ga.  502,  16  S.  E. 
352.      Passengers    may    be    required    to    go 


through  in  the  same  train  or  forfeit  t: 
□minder  of  their  tickets;    Cheney   v.   R.  R. 
Co.,   11  Mete.   (Mass.;   121,  45  Am. 
Oil  Creek  &  A.  R.  By.  Co.   v. 
231;     State  v.    Over:  J.    L.    K 

Am.   Dee.  <J71 ;    I  L  C.  .V   C. 

Bartram,  11  Ohio  St.  462;   Gulf,  i 
By.  Co.  v.  ; 

10  L.  R.  A.  31S.  The  words  "good  this  trip 
only"  upon  a  ticket  will  nut  limit  the  un- 
dertaking of  the  company  to  any  particular 
day  or  any  specific  train. — they  relate  to  a 
journey  and  not  to  a  time;  and  the  ' 
is  good  if  used  at  any  time  within  six  years 
from  its  date;  Pier  v.  Finch,  lit  Barb.  (N. 
Y.)  514;  Drew  v.  R.  Co.,  51  Cal.  425.  See 
Lundy  v.  R.  Co.,  GO  Cal.  191,  4  Pac.  119 
Am.  Rep.  100;  Auerbach  v.  R.  Co.,  89  X.  Y. 
281,  42  Am.  Bep.  200 ;  Gulf,  C.  &  S.  i 
Co.  v.  Looney,  S5  Tex.  158,  19  S.  YV.  1039, 
16  L.  R.  A.  471,  34  Am.  St  Rep.  7S7;  but 
a  ticket  "good  for  this  day  only,"  or  for 
"only  two  days  after  date,"  is  of  no  valid- 
ity after  that  date  though  not  use 
&  L.  R.  Co.  v.  Proctor,  1  Allen  o: 
79  Am.  Dec.  729;  Gale  v.  R.  Co.,  7  Hun 
(N.  Y.)  670.  Where  a  passenger  buys  a 
ticket  which  is  silent  as  to  stop-over  priv- 
.  he  may  rely  on  the  statements  of  the 
ticket  agent  on  that  subject;  New  York,  I.. 
E.  &  W.  R.  Co.  v.  Winter,  L43  D.  S.  00.  12 
Sup.  Ct  356,  36  L.  Ed.  71.  In  determining 
what  is  a  reasonable  regulation  the  con- 
venience of  both  the  public  and  the  com- 
pany must  be  considered  :  Faber  v.  By.  Co., 
62  Minn.  433,  64  N.  W.  918,  36  L.  B.  A 
where  the  schedule  was  disarranged  and 
no  notice  given  that  the  car  would  not  pro- 
ceed to  its  destination.  It  was  held  that 
the  passenger  could  not  be  required  to  trans- 
fer to  a  car  ahead;  Burrow  v.  By.  ft  Light 
Co.,  12  Va.  L.  Reg.  763;  contra,  37  Can. 
Sup.  Ct.  523 ;  but  where  a  transfer  Is  compel- 
led there  is  a  remedy  for  failure  to  provide 
seats  in  the  new  car ;  Louisville,  N.  O.  & 
T.  Ry.  Co.  v.  Patterson,  69  Miss.  421,  13 
South.  697,  22  L.  R.  A.  259;  see  Camden  & 
A.  R.  R.  Co.  v.  Hoosey,  99  Pa.  402.  107,  44 
Am.  Rep.  120.  An  ordinance  imposing  a 
penalty  for  unnecessary  changes  is  reason- 
able; City  of  New  York  v.  Ry.  Co.,  43  Misc. 
29,  86  N.  Y.  Supp.  673.  It  is  the  duty  of  the 
carrier  to  give  information  necessary  for 
the  journey;  Dwinelle  v.  B.  Co.,  120  X.  Y. 
117,  24  N.  E.  319,  8  L.  B.  A.  22  I.  17  Am.  St. 
Rep.  611;  as  of  circumstances  likely  to 
cause  delay;  Hasseltine  v.  Railway,  7."  S. 
C.  141,  55  S.  E.  142,  6  L  R.  A.  (N.  S.i  1009; 
and  passengers  have  the  right  to  rely  on  in- 
formation given;  Pennsylvania  Co.  v.  Hoag- 
land,  7S  Ind.  203.  The  obligation  is  tr 
as  an  Incident  of  the  business;  see  20  Harv. 
L.  Rev.  232  ;  hut  in  England  false  informa- 
tion is  dealt  with  as  if  deceit;  5  El.  &  Bl. 
860. 

Railway  passengers,  when  required  by  the 
regulations    of    the    company    to    surrender 


COMMON  CARRIERS 


564 


COMMON  HIGHWAY 


cheir  tickets  in  exchange  for  the  conduc- 
tor's checks,  are  liable  to  be  expelled  from 
the  cars  for  a  refusal  to  comply  with  such 
regulation,  or  to  pay  fare  again ;  Northern 
R.  Co.  v.  Page,  22  Barb.  (N.  Y.)  130 ;  or  for 
refusal  to  exhibit  a  ticket  at  the  request  of 
the  conductor  in  compliance  with  the  stand- 
ing regulations  of  the  company;  Hibbard 
v.   R.  Co.,  15  N.  Y.  455.     See  Ticket. 

Railway  companies  may  exclude  mer- 
chandise from  their  passenger  trains.  It  is 
not  the  duty  of  a  company  to  search  every 
parcel  carried  by  a  passenger,  and  it  is  not 
guilty  for  the  death  of  a  fellow  passenger 
resulting  from  an  explosion  of  fire  works 
carried  by  another;  [1901]  A.  C.  398.  The 
company  is  not  bound  to  carry  a  passenger 
daily  whose  trunk  or  trunks  contain  mer- 
chandise, money,  or  other  things  known  as 
"express  matter" ;    5  Am.  Law  Reg.  364. 

COMMON  CONDIDIT.  See  Condidit, 
Common. 

COMMON   COUNCIL.     See  Council. 

COMMON  COUNTS.  Certain  general 
counts,  not  founded  on  any  special  contract, 
which  are  introduced  in  a  declaration,  for 
the  purpose  of  preventing  a  defeat  of  a  just 
right  by  an  accidental  variance  in  the  evi- 
dence. 

These  are,  in  an  action  of  assumpsit,  counts 
founded  on  implied  promises  to  pay  money  in  con- 
sideration of  a  precedent  debt,  and  have  been  va- 
riously classified.  Those  usually  comprehended  un- 
der the  term  are: — 

1.  Indebitatus  assumpsit,  which  alleges  a  debt 
founded  upon  one  of  the  several  causes  of  action 
from  which  the  law  implies  a, promise  to  pay,  and 
this  is  made  the  consideration  for  the  promise  to 
pay  a  sum  of  money  equivalent  to  such  indebted- 
ness.    This  covers  two  distinct  classes: — 

a.  Those  termed  money  counts,  because  they  re- 
lated exclusively  to  money  transactions  as  the  basis 
of  the  debt  alleged: 

(1)  Money  paid  for  defendant's  use. 

(2)  Money  had   and  deceived  by  defendant  for 

the  plaintiff's  use. 

(3)  Money  lent  and  advanced  to  defendant. 

(4)  Interest. 

(5)  Account  stated. 

b.  Any  of  the  usual  states  of  fact  upon  which  the 
debt  may  be  founded,  the  most  common  being: 

(1)  Use  and  occupation. 

(2)  Board  and  lodging. 

(3)  Goods  sold  and  delivered. 

(4)  Goods  bargained  and  sold. 

(5)  Work,  labor,  and  services. 

(6)  Work,  labor,  and  materials. 

2.  Quantum  meruit. 

3.  Quantum  valebant. 

See  Assumpsit. 

COMMON  FINE.  A  small  sum  of  money 
paid  to  the  lords  by  the  residents  in  certain 
leets.    Fleta;   Wharton. 

COMMON  FISHERY.  A  fishery  to  which 
all  persons  have  a  right.  A  common  fishery 
is  different  from  a  common  of  fishery,  which 
is  the  right  to  fish  in  another's  pond,  pool, 
or  river.     See  Fishery. 

COMMON  HIGHWAY.  By  this  term  is 
meant  a  road  to  be  used  by  the  community 


at  large  for  any  purpose  of  transit  or  traffic 
Hammond,  N.  P.  239.     See  Highway. 

COMMON  INFORMER.  One  who,  without 
being  specially  required  by  law  or  by  virtue 
of  his  office,  gives  information  of  crimes,  of- 
fences, or  misdemeanors  which  have  been 
committed,  in  order  to  prosecute  the  offend- 
er ;  a  prosecutor. 

COMMON  INTENT.  The  natural  sense 
given  to  words. 

It  is  the  rule  that  when  words  are  used 
which  will  bear  a  natural  sense  and  an  arti- 
ficial one,  or  one  to  be  made  out  by  argument 
and  inference,  the  natural  sense  shall  pre- 
vail. It  is  simply  a  rule  of  construction,  and 
not  of  addition.  Common  intent  cannot  add 
to  a  sentence  words  which  have  been  omit- 
ted; 2  H.  Blackst.  530.  In  pleading,  certain- 
ty is  required;  but  certainty  to  a  common 
intent  is  sufficient — that  is,  what  upon  a 
reasonable  construction  may  be  called  cer- 
tain, without  recurring  to  possible  facts ;  Co. 
Litt  203  a;    Dougl.  163.     See  Certainty. 

COMMON  LAW.  That  system  of  law  or 
form  of  the  science  of  jurisprudence  which 
has  prevailed  in  England  and  in  the  United 
States  of  America,  in  contradistinction  to 
other  great  systems,  such  as  the  Roman  or 
civil  law. 

Those  principles,  usages,  and  rules  of  ac- 
tion applicable  to  the  government  and  secur- 
ity of  persons  and  of  property,  which  do  not 
rest  for  their  authority  upon  any  express 
and  positive  declaration  of  the  will  of  the 
legislature.     1  Kent  492. 

The  body  of  rules  and  remedies  adminis- 
tered by  courts  of  law,  technically  so  called, 
in  contradistinction  to  those  of  equity  and 
to  the  canon  law. 

The  law  of  any  country,  to  denote  that 
which  is  common  to  the  whole  country,  in 
contradistinction  to  laws  and  customs  of  lo- 
cal application. 

The  most  prominent  characteristic  which  marks 
this  contrast,  and  perhaps  the  source  of  the  distinc- 
tion, lies  in  the  fact  that  under  the  common  law 
neither  the  stiff  rule  of  a  long  antiquity,  on  the  one 
hand,  nor,  on  the  other,  the  sudden  changes  of  a 
present  arbitrary  power,  are  allowed  ascendency, 
but,  under  the  sanction  of  a  constitutional  govern- 
ment, each  of  these  is  set  off  against  the  other;  so 
that  the  will  of  the  people,  as  it  is  gathered  both 
from  long  established  custom  and  from  the  expres- 
sion of  the  legislative  power,  gradually  forms  a  sys- 
tem— just,  because  it  is  the  deliberate  will  of  a  free 
people — stable,  because  it  is  the  growth  of  centuries 
— progressive,  because  it  is  amenable  to  the  con- 
stant revision  of  the  people.  A  full  idea  of  the 
genius  of  the  common  law  cannot  be  gathered  with- 
out a  survey  of  the  philosophy  of  English  and 
Americam  history.  Some  of  the  elements  will,  how- 
ever, appear  in  considering  the  various  narrower 
senses  in  which  the  phrase  "common  law"  is  used. 

Perhaps  the  most  important  of  these  narrower 
senses  is  that  which  it  has  when  used  in  contradis- 
tinction to  statute  law,  to  designate  unwritten  as 
distinguished  from  written  law.  It  is  that  law 
which  derives  its  force  and  authority  from  the  uni- 
versal consent  and  immemorial  practice  of  the 
people.  It  has  never  received  the  sanction  of  the 
legislature  by  an  express  act,  which  is  the  criterion 
by  which  it  Is  distinguished  from  the  statute  law. 


COMMON  LAW 


505 


COMMON  LAW 


When  It  is  spoken  of  as  the  lex  non  scripta,  It  is 
meant  that  it  is  law  not  written  by  authority  of 
law.  The  statutes  are  the  expression  of  law  In  a 
written  form,  which  form  is  essential  to  the  statute. 
The  decision  of  a  court  which  establishes  or  de- 
clares a  rule  of  law  may  be  reduced  to  writing  and 
published  in  the  reports  ;  but  this  report  is  not  the 
law;  it  is  but  evidence  of  the  law;  It  Is  but  a  writ- 
ten account  of  one  application  of  a  legal  principle, 
which  principle,  in  the  theory  of  the  common  law,  is 
still  unwritten.  However  artificial  this  distinction 
may  appear,  it  is  nevertheless  of  the  utmost  im- 
portance, and  bears  continually  the  most  wholesome 
results.  It  Is  only  by  the  legislative  power  that  law 
can  be  bound  by  phraseology  and  by  forms  of  ex- 
pression. The  common  law  eludes  such  bondage; 
its  principles  are  not  limited  nor  hampered  by  the 
mere  forms  in  which  they  may  have  been  expressed, 
and  the  reported  adjudications  declaring  such  prin- 
ciples are  but  the  instances  in  which  they  have  been 
applied.  The  principles  themselves  are  still  unwrit- 
ten, and  ready,  with  all  the  adaptability  of  truth,  to 
meet  every  new  and  unexpected  case.  Hence  it  is 
said  that  the  rules  of  the  common  law  are  flexible  ; 
Bell  v.  State,  1  Swan  (Tenn.)  4^;  Rensselaer  Glass 
Factory  v.   Reld,  5  Cow.    (N.  Y.)  587,  628,  632. 

It  naturally  results  from  the  inflexible  form  of 
the  statute  or  written  law,  which  has  no  self-con- 
tained power  of  adaptation  to  cases  not  foreseen  by 
legislators,  that  every  statute  of  Importance  be- 
comes, in  course  of  time,  supplemented,  explained, 
enlarged,  or  limited  by  a  series  of  adjudications 
upon  it,  so  that  at  last  it  may  appear  to  be  merely 
the  foundation  of  a  larger  superstructure  of  unwrit- 
ten law.  It  naturally  follows,  too,  from  the  less  def- 
inite and  precise  forms  in  which  the  doctrine  of  the 
unwritten  law  stands,  and  from  the  proper  hesita- 
tion of  courts  to  modify  recognized  doctrines  in 
new  exigencies,  that  the  legislative  power  frequent- 
ly intervenes  to  declare,  to  qualify,  or  to  abrogate 
the  doctrines  of  the  common  law.  Thus,  the  writ- 
ten and  the  unwritten  law,  the  statutes  of  the  pres- 
ent and  the  traditions  of  the  past,  interlace  and 
react  upon  each  other.  Historical  evidence  sup- 
ports the  view  which  these  facts  suggest,  that  many 
of  the  doctrines  of  the  common  law  are  but  the 
common-law  form  of  antique  statutes,  long  since 
overgrown  and  imbedded  in  judicial  decisions. 
While  this  process  is  doubtless  continually  going  on 
in  some  degree,  the  contrary  process  is  also  con- 
tinually going  on;  and  to  a  very  considerable  ex- 
tent, particularly  in  the  United  States,  the  doc- 
trines of  the  common  law  are  being  reduced  to  the 
statutory  form,  with  such  modifications,  of  course, 
as  the  legislature  will  choose  to  make.  This  sub- 
ject is  more  fully  considered  under  the  title  Code, 
which  see. 

In  a  still  narrower  sense,  the  expression  "com- 
mon law"  is  used  to  distinguish  the  body  of  rules 
and  of  remedies  administered  by  courts  of  law 
technically  so  called  in  contradistinction  to  those  of 
equity  administered  by  courts  of  chancery,  and  to 
the  canon  law,  administered  by  the  ecclesiastical 
courts. 

In  England  the  phrase  is  more  commonly  used  at 
the  present  day  in  the  second  of  the  three  senses 
above  mentioned. 

In  this  country  the  common  law  of  Eng- 
land has  been  adopted  as  the  basis  of  our 
jurisprudence  in  all  the  states  except  Louisi- 
ana. Many  of  the  most  valued  principles 
of  the  common  law  have  been  embodied  in 
the  constitution  of  the  United  States  and  the 
constitufTons  of  the  several  states;  and  in 
many  of  the  states  the  common  law  and  the 
statutes  of  England  in  force  in  the  colony  at 
the  time  of  our  independence  are  by  the  state 
constitution  declared  to  be  the  law  of  the 
state  until  repealed.  There  is  an  express 
constitutional  adoption  of  it  in  Delaware, 
New   York,   Michigan,   Wisconsin,  and   West 


Virginia,  and  an  implied  adoption  of  it  in  the 
constitutions  of  Kentucky  and  West  Virginia. 
It  has  been  adopted   by  .statute  in  Arizona, 
Arkansas,      California,      Colorado,      Florida, 
Idaho,    Illinois,    Indiana,    Kansas,    Missouri, 
Montana,    Nebraska,    Nevada,    New    Mexico, 
North  Carolina,   Pennsylvania,    South   i 
Una,   Texas,    Vermont,    Virginia,   Wash; 
and  Wyoming.     It  was  extended  to  Alabama 
by  the  ordinance  of  1787  and  the  recognition 
of  the  latter  In  the  state  constitu 
lard  v.  Ilagan,  3  How.  (U.  S.)  212,  11  L 
505;    Barlow  v.  Lambert,  28  Ala.  7<>7,  <;:,  Am. 
Dec,  374.     It  is  recognized  by  judicial   deci- 
sion without  any  statute  in   Iowa;    Sti 
Twogood,  7  la.  252;    Mississippi;    Heming- 
way  v.  Scales,  42  .Miss.    1.  P7  Am.   Dec 
2  Am.  Rep.  586.     See  1   r.ish.   Crim.   haw   f 
15,  note  4,  §  45,  where  the  rules  adopted  by 
the  several  states  in  this  respect  are  slated. 
.  where  a  question  in  the  courts  of  one 
state  turns  upon   the  laws  of  a  sister  state, 
if  no  proof  of  such  laws  is  offered,  it  is,  in 
general,  presumed  that  the  common  law 
existed  at  the  time  of  the  separation  of  this 
country  from  England  prevails  in  such  state ; 
Abell    v.    Douglass,    4    Denio    (N.    V.. 
Schurman  v.  Marley,  29   In<L  458;    Kermot 
v.   Aver,   11   Mich.   1S1  ;    Mohr  v.    Miesen,   47 
Minn.  228,  49  N.  W.  802;    contra,  in  Penn- 
sylvania,   in    cases    where    that    state    has 
changed    from    the   common    law;     the    pre- 
sumption  being   that   the  law    of   the    sister 
state  has  made  the  same  change,  If  there  is 
no  proof  to  the  contrary.     The  term  common 
law  as  thus  used  may  be  deemed  to  Include 
the  doctrine  of  equity  ;  Williams  v.  Williams, 
S  N.  Y.  535;    but  the  term  is  also  used  in  the 
amendments  to  the  constitution  of  the  United 
States  (art.  7)  in  contradistinction  to  equity, 
in  the  provision   that  "In  suits  at   common 
Law  where  the  value  in  controversy  shall  ex- 
ceed twenty  dollars,  the  right  of  trial  by  jury 
shall  be  preserved."    The  "common  law"  here 
mentioned   is  the   common   law  of   England. 
and  not  of  any  particular  state;    U.   S.   v. 
Wonson,  l  Gall.  20,   Fed.   Caa    No.    16,750; 
Bains  v.  The  Catherine,   1  Raldw.  554,   Fed. 
Cas.  No.  750;  Robinson  v.  Campbell,  3  Wheat 
(U.  S.)  223,  4  L.  Ed.  372;    Parsons  v.  Bed- 
ford, 3  Pet.   (U.  S.)   446,  7  L.  Ed.  732.     See 
Patterson  v.  Winn.  5  Pet   (U.   S.)   241,  S  L. 
Ed.  108;    Com.  v.  Leach,'  1  Mass.  61  ;    Coburn 
v.  Harvey.  IS  Wis.  147.     The  term  Is  used  in 
[distinction    to   equity,   admiralty,   and 
maritime  law;    Parsons  v.   Bedford,  .">   Pet 
(U.    S.)    446,    7    L    Ed.    782;     Rains    v.   The 
Catherine,  1  Baldw.  554,  Fed  Cas.  No. 

The  common  law  of  England  is  not  In  all 
respects  to  be  taken  as  that  of  the  tinted 
States  or  of  the  several  states:  its  general 
principles  are  adopted  only  so  far  as  they 
are  applicable  to  our  situation,  and  the  prin- 
ciples upon  which  courts  discriminate  be- 
what  is  to  be  taken  and  what  is  to 
be  left  have  been  much  the  same  whether 
the  common   law   was  adopted  by   constitu- 


COMMON  LAW 


566 


COMMON  LAW 


tion,  statute,  or  decision.  While  no  hard 
and  fast  rule  can  be  laid  down  which  will 
at  once  differentiate  every  case,  a  very  dis- 
criminating effort  was  made  by  Chancellor 
Bates,  in  Clawson  v.  Primrose,  4  Del.  Ch. 
643,  to  formulate  the  result  of  the  decisions 
and  ascertain  the  criterion  which  they  had 
in  most  instances  applied  to  the  subject. 
In  this  discussion,  which  was  character- 
ized by  Professor  Washburn  as  having  great 
value,  the  conclusion  reached  is  thus  stated: 

"It  cannot  be  overlooked  that,  notwithstanding 
the  broad  language  of  the  constitution  ('the  com- 
mon law  of  England  as  well  as  so  much  of  the  stat- 
ute law  as  has  been  heretofore  adopted  In  practice, 
.  .  .  such  parts  only  excepted  as  are  repugnant 
to  the  rights  and  privileges  contained  in  this  con- 
stitution and  the  declaration  of  rights')  there  were 
many  parts  of  the  common  law  of  England,  as  It 
stood  prior  to  1776,  which  never  have  in  fact  been 
regarded  by  our  courts  as  in  force  in  this  country ; 
yet  it  is  to  be  observed  that  the  courts  have  not 
herein  acted  arbitrarily  in  adopting  some  parts  of 
the  common  law  and  rejecting  other  parts,  accord- 
ing to  their  views  of  the  policy  of  particular  rules 
or  doctrine.  On  the  contrary,  those  parts  of  the 
common  law  of  England  which  have  not  been  here 
practically  administered  by  the  courts  will  be  found 
on  examination  to  reduce  themselves  to  two  classes, 
resting  upon  grounds  which  render  them  proper  to 
be  treated  as  implied  exceptions  to  the  constitu- 
tional provision  in  addition  to  the  expressed  excep- 
tion of  such  parts  of  the  common  law  as  were  re- 
pugnant to  the  rights  and  privileges  contained  in 
the  constitution.  One  of  these  classes  of  excep- 
tions may  be  briefly  disposed  of.  It  embraces  those 
parts  of  the  rules  and  practice  of  the  common  law 
which  had  become  superseded  by  long  settled  us- 
ages of  trade,  or  business,  or  habits  of  dealing 
among  our  people,  such  as  could  not  be  unsettled  or 
disturbed  without  serious  inconvenience  or  injury. 
In  such  cases,  upon  the  necessary  maxim  that  com- 
munis error  facit  jus,  the  courts  accepted  these 
departures  as  practical  modifications  of  the  com- 
mon law.    .    .    . 

"The  other  class  of  rules  which,  though  parts  of 
the  common  law  of  England,  have  never  been  ad- 
ministered by  the  courts  under  the  constitution  of 
1776,  embraces  those  parts  of  the  common  law 
which  in  the  terms  usually  employed  were,  at  the 
period  of  our  independence,  inapplicable  to  the  ex- 
isting circumstances  and  institutions  of  our  people. 

"There  is  less  difficulty  in  applying  the  limitation 
practically  than  in  attempting  to  define  it.  I  un- 
derstand it  as  excluding  those  parts  of  the  common 
law  of  England  which  were  applicable  to  subjects 
connected  with  political  institutions  and  usages  pe- 
culiar to  the  mother  country,  and  having  no  exist- 
ence in  the  colonies,  such  for  example  as  officers, 
dignities,  advowsons,  titles,  etc. ;  also,  as  exclud- 
ing some  of  the  more  artificial  rules  of  the  common 
law,  springing  out  of  the  complicated  system  of 
police,  revenue,  and  trade,  among  a  great  commer- 
cial people  and  not  therefore  applicable  to  the  more 
simple  transactions  of  the  colonies  or  of  the  states 
in  their  early  history;  also  it  may  be  understood  as 
excluding  or  modifying  many  rules  of  what  is 
known  as  the  common  law  of  practice,  and  possibly 
of  evidence,  which  the  greater  simplicity  In  our 
system  for  the  administration  of  justice,  would 
render  unnecessary  or  inconvenient. 

"But,  on  the  other  hand,  our  legislative  and  judi- 
cial history  shows  conclusively  that  what  may  be 
termed  the  common  law  of  property  was  received 
as  an  entire  system,  subject  to  alterations  by  the 
legislature  only.  Rights  of  property  and  of  person 
are  fundamental  rights  necessary  to  be  defined  and 
protected  in  every  civil  society.  The  common  law, 
as  a  system  framed  to  this  very  end,  could  not  be 
deemed  inapplicable  in  the  colonies  for  want  of  a 
subject  matter,  or  as  being  needless  or  superfluous, 
or    unacceptable,    which    is    the    true    sense   of    the 


limitation  in  question.  Certain  it  is,  as  a  matter  of 
history,  that  our  ancestors  did  not  so  treat  it." 

Among  the  other  cases  in  which  the  subject 
is  treated  are  Van  Ness  v.  Pacard,  2  Pet.  (U. 
S.)  144,  7  L.  Ed.  374;  Town  of  Pawlet  v. 
Clark,  9  Cra.  (U.  S.)  333,  3  L.  Ed.  735;  Lyle 
v.  Richards,  9  S.  &  R.  (Pa.)  330;  Rensselaer 
Glass  Factory  v.  Reid,  5  Cow.  (N.  Y.)  628; 
Doe  v.  Winn,  5  Pet.  (U.  S.)  241,  8  L.  Ed. 
108;    Wheaton  v.  Peters,  8  Pet.   (U.  S.)  658, 

8  L.  Ed.  1055;  U.  S.  v.  Hudson,  7  Cra.  (U. 
S.)  32,  3  L.  Ed.  259;  U.  S.  v.  Coolidge,  1 
Wheat.  (U.  S.)  415,  4  L.  Ed.  124;  Robinson 
v.  Campbell,  3  Wheat.  (U.  S.)  223,  4  L.  Ed. 
372;  U.  S.  v.  Ravara,  2  Dall.  (U.  S.)  297,  1 
L.  Ed.  3S8;  U.  S.  v.  Worrall,  2  Dall.  (U.  S.) 
3S4,  1  L.  Ed.  426;  Com.  v.  Leach,  1  Mass.  61 ; 
Boynton  v.  Rees,  9  Pick.  (Mass.)  532;  Win- 
throp  v.  Dockendorff,  3  Greenl.  (Me.)  162; 
Colley  v.  Merrill,  6  Greenl.  (Me.)  55;  Sib- 
ley v.  Williams,  3  Gill.  &  J.  (Md.)  62;  U.  S. 
v.  Coolidge,  1  Gall.  (U.  S.)  489,  Fed.  Cas.  No. 
14,857;  State  v.  Danforth,  3  Conn.  114;  John- 
son v.  Terry,  34  Conn.  260 ;  Dawson  v.  Coff- 
man,  28  Ind.  220 ;  Powell  v.  Sims,  5  W.  Va. 
1,  13  Am.  Rep.  629;  Lansing  v.  Stone,  37 
Barb.  (N.  Y.)  16;  Barlow  v.  Lambert,  28 
Ala.  704,  65  Am.  Dec.  374.  See  Sampson's 
Discourse  before  the  N.  Y.  Hist.  Soc. 

The  adoption  of  the  common  law  has  been 
held  to  include  the  construction  of  common- 
law  terms;  Carpenter  v.  State,  4  How. 
(Miss.)  163,  34  Am.  Dec.  116;  Buckner  v. 
Bank,  5  Ark.  536,  41  Am.  Dec.  105 ;  statutes ; 
Com.  v.  Churchill,  2  Mete.  (Mass.)  118;  and 
constitutional  provisions;    McGinnis  v.  State, 

9  Humph.  (Tenn.)  43,  49  Am.  Dec.  697; 
curtesy ;  McCorry  v.  King's  Heirs,  3  Humph. 
(Tenn.)  267,  39  Am.  Dec.  165;  dower;  Davis 
v.  O'Ferrall,  4  G.  Greene  (la.)  168;  husband 
and  wife ;  Van  Maren  v.  Johnson,  15  Cal. 
308 ;  champerty ;  Key  v.  Vattier,  1  Ohio 
132;  real  property,  title,  estate,  and  tenures; 
Hemingway  v.  Scales,  42  Miss.  1,  97  Am.  Dec. 
425,  2  Am.  Rep.  586;  Harkness  v.  Sears,  26 
Ala.  493,  62  Am.  Dec.  742;  Powell  v.  Bran- 
don, 24  Miss.  343 ;  sureties;  Vidal  v.  Girard, 
2  How.  (U.  S.)  127,  11  L.  Ed.  205;  chari- 
table uses ;  Burr  v.  Smith,  7  Vt.  241,  29  Am. 
Dec.  154;  Williams  v.  Williams,  8  N.  Y.  541; 
Witman  v.  Lex,  17  S.  &  R.  (Pa.)  88,  17  Am. 
Dec.  644 ;  decedent's  estates ;  Cutting  v. 
Cutting,  86  N.  Y.  529 ;  remedies  and  prac- 
tice; Straffin's  Adm'r  v.  Newell,  T.  U.  P. 
Charlt.  (Ga.)  172,  4  Am.  Dec.  705;  U.  S.  v. 
Wonson,  1  Gall.  20,  Fed.  Cas.  No.  16,750; 
Hightower  v.  Fitzpatrick's  Heirs,  42  Ala. 
597;  Grande  v.  Foy,  1  Hemp.  105,  Fed.  Cas. 
No.  5,682a;  Fisher  v.  Cockerell,  5  Pet.  (U. 
S.)  253,  8  L.  Ed.  114;  Wiley  v.  Ewing,  47 
Ala.  424. 

In  actions  in  the  federal  courts  in  a  terri- 
tory, the  common  law  is  the  rule  of  decision, 
in  the  absence  of  statutes  or  proof  of  laws  or 
customs  prevailing  in  the  territory ;  Pyeatt 
v.  Powell,  51  Fed.  551,  2  C.  C.  A.  367.  The 
common-law   rule   of   decision   in   a   federal 


COMMON  LAW 


567 


I'fiMMnN  LAW 


court  is  that  of  the  state  in  which  it  is  sit- 
ting ;  Lorman  v.  Clarke,  2  McLean  5G8,  Fed. 
Cas.  No.  8,516. 

Illustrations  of  what  it  has  been  held  not 
to  include  are  the  rule  respecting  convey- 
ance by  parol;  Liudsley's  Lessee  v.  Coats,  1 
Ohio  245 ;  but  see  Lavelle  v.  Strobel,  89  I1L 
370;  shifting  inheritances;  Drake  v.  Rogers, 
13  Ohio  St.  21;  Cox  v.  Matthews,  17  End. 
3G7;  Bates  v.  Brown,  5  Wall.  (U.  S.)  710, 
18  L.  Ed.  535 ;  mere  possession  of  land  as 
against  miners;  McClintock  v.  Bryden,  5  Cal. 
100,  63  Am.  Dec.  87;  newspaper  communica- 
tions respecting  a  Judge  considered  as  a  con- 
tempt in  England;  Stuart  v.  People,  3  Scam. 
(111.)  404;  cutting  timber;  Dawson  v.  Coff- 
man,  28  Ind.  220;  easement  by  use  in  party- 
wall;  Hieatt  v.  Morris,  10  Ohio  St.  523,  78 
Am.  Dec.  280;  estates  in  joint  tenancy;  Ser- 
geant v.  Steinber^er,  2  Ohio  305,  15  Am. 
Dec.  553;  rule  as  to  partial  reversal  of  a 
judgment  against  an  infant  and  another; 
Wilford  v.  Grant,  Kirby  (Conn.)  117;  cy 
priv  doctrine ;  Grimes'  Ex'rs  v.  Harmon,  35 
Ind.  198,  9  Am.  Rep.  090;  riparian  rights  to 
soil  under  water;  Reno  Smelting,  Milling  & 
Reduction  Works  v.  Stevenson,  20  Nev.  269, 
21  Pac.  317,  4  L.  R.  A.  60,  19  Am.  St.  Rep. 
364;  overruling  Vansickle  v.  Haines,  7  Nev. 
249 ;  to  running  water;  Martin  v.  Bigelow,  2 
Aik.  (Vt.)  187,  16  Am.  Dec.  696;  the  defini- 
tion of  a  navigable  river;  Fulmer  v.  Wil- 
liams, 122  Pa.  191,  15  Atl.  726,  1  L.  R.  A.  603, 
9  Am.  St.  Rep.  88 ;  the  law  of  waters  as  ap- 
plied to  large  lakes,  or  to  a  river  which  Is  a 
national  boundary;  Cbamplain  &  St.  L.  R. 
Co.  v.  Valentine,  19  Barb.   (N.  Y.)    484. 

In  criminal  law  the  common  law  is  gen- 
erally in  force  in  the  states  to  some  extent, 
and  while  it  is  in  some  states  held  that  no 
crime  is  punishable  unless  by  statute,  there 
are  in  many  states  general  statutes  resorting 
to  the  common  law  for  all  crimes  not  other- 
wise enumerated,  and  for  criminal  matters 
generally.  When  there  is  no  statutory  defini- 
tion of  a  crime  named,  the  common-law  defi- 
nition is  generally  resorted  to ;  Com.  v.  Web- 
ster, 5  Cush.  (Mass.)  295,  52  Am.  Dec.  711; 
as  also  are  its  rules  of  evidence  in  criminal 
cases,  and  of  practice  as  well  as  principle  in 
the  absence  of  statutes  to  the  contrary; 
Hyde  v.  State,  16  Tex.  445,  67  Am.  Dec.  630; 
and  in  Louisiana,  although  not  recognized  in 
civil  matters,  the  common  law  in  criminal 
cases  is  expressly  adopted;  State  v.  McCoy,  8 
Bob.  545,  41  Am.  Dec.  301.  It  has  been  held 
to  prevail  in  the  District  of  Columbia  as  to 
theft;  State  v.  Cummings,  33  Conn.  260,  89 
Am.  Dec.  208;  as  to  conspiracy  in  .Maryland; 
State  v.  Buchanan,  5  Ilarr.  &  J.  358,  '.>  Am. 
Dec.  534;  kidnapping  in  Xew  Hampshire; 
State  v.  Rollins,  S  X.  II.  550;  homicide  with- 
out intent  to  kill  in  Maine;  State  v.  Smith. 
32  Me.  369,  54  Am.  Dec.  578;  and  in  Te 
see;  Jacob  v.  State,  3  Humph.  493;  capacity 
to  commit  rape  in  New  York ;  People  v. 
Randolph,  2  Park.  Cr.  Rep.  174;    but  not  in 


Ohio;   Williams  v.  State,  14  Ohio  222,  45  Am. 
Dec.  536. 

There   is  no   common   law   of  the   T' 
States,  as  a  distinct  sovereignty  ;    Swift  v. 
];.  Co.,  •;!  Fed.  59;  Catton  v.  By.  Co.  (la.)  63 
X.   W.   589;    V/heaton  v.  t    (U. 

s.i  658,  8  L.  Ed.  1055;    People  v.  Folsom,  5 
Cal.  374;    Forepaugh  v.  i;.  Co.,  i.s  Pa.  217, 
is  Atl.  503,  5  L.   B.  A.  508,  15  Am 
672;     and    therefore   there   are   no   O 
law   offences   against   the    U.    S. ;     t 
Budson,  7  Cra.  (U.  S.)  32,  3  L.  Ed  259;    In 
re  Greene,  52  Fed.  104 ;    U.  S.  v.  Lev. 
Fed.  449;    U.  S.  v.  Britton,  108  U.  S.  199,  2 
Sup.  Ct.  525,  27  L.  Ed  703;    U.  S.  v.  1 
144  U.  S.  G77,  VJ  Sun.  ct.  764,  36  L.  Ed.  591. 
There   is   a   rare  and   valuable   pamphlet  on 
this  subject,  by  St.  George  Tucker  Campbell, 
of  the  Philadelphia   Bar,   which  contains  a 
full  discussion  of  this  question.     For  earlier 
cases  before  the  question  was  fully  settled, 
see  U.  S.  v.  Worrall,  2  Dall.  (U.  S.)  384,  Fed. 
Cas.  Xo.  16,766;  U.  S.  v.  Coolidge,  1  Gall.  488, 
Fed.  Cas.  No.  14,sr>7 :    id.,  1  Wheat   (U.  S.) 
415,  4  L  Ed.  124.     But  the  common  law  is 
resorted  to  by  federal  courts  for  definition  of 
common-law  crimes  not  defined  by   statute ; 
C.   S.   v.  Armstrong,  2  Curt.  C.  C.  446,   1  ed. 
Cas.  No.  14,467 ;   U.  S.  v.  Coppersmith,  4  Fed. 
198.    See  Commercial  Law. 

The  admiralty  law  is  distinct  from  the 
common  law  and  the  line  of  demarcation  is 
to  be  sought  in  the  English  decisions  before 
the  Bevolution  and  those  of  the  state  courts 
prior  to  the  constitution.  See  La  Amistad  de 
Rues,  5  Wheat  (U.  S.)  391,  5  L.  Ed.  11".; 
Bains  v.  The  James  and  Catherine,  Baldw. 
558,  Fed.  Cas.  No.  75<i;  Sawyer  v.  Steamboat 
Co.,  46  Me.  400,  74  Am.  Dec.  463.  And  as  to 
the  adoption  of  the  English  ecc 
law,  see  Le  Barron  v.  Le  Barron,  .;.".  \'r.  365; 
Crump  v.  Morgan,  38  X.  C.  91,  40  Am.  Dec. 
447;  Perry  v.  Perry,  2  Paige  Ch.  (X.  Y.) 
501;  Brinkley  v.  Brinkley,  •"<>  X.  Y.  1S4,  10 
Am.  Rep.  460.  New  York  has  adopted  only 
so  much  of  the  common  law  as  is  applicable 
to  the  circumstances  of  the  colonies  and  con- 
formable to  her  institutions;  Cutting  v.  Cut- 
ting, 86  X.  Y.  52i';  Shayne  v.  Publishing  Co., 
168  X.  Y.  70,  61  X.  E.  115,  55  L.  B.  A.  777.  85 
Am.  St.  Rep.  654.  In  adopting  the  common 
law  in  Xew'  York,  principles  Inconsonant 
with  the  circumstances  or  repugnant  to  the 
spirit  of  American  institutions  were  not 
adopted;  Barnes  v.  Terminal  Co.,  L93  X.  Y. 
35  X.  K.  L093,  127  Am.  St.  Bep.  962. 

It  does  not  become  a  part  of  the  law  of  a 
state  of  its  own  \iuror,  but  is  adopted  ' 
stiiutional     provision,     statute     or     d< 

rn  Onion  Tel.  Co.  v.  Milling  Co.,  218 
U.  S.  406,  :;i  Sup.  Ct  59,  54  1..  Ed  LC 
L.  R.  A.  (X.  S.)  220,  21  Ann.  fas.  SI.",.  As 
to  Indiana,  see  Sopher  v.  State.  169  Ind.  177. 
81  N.  E.  913,  14  L.  R.  A.  (X.  S.)  172,  14 
Ann.  Cas.  27. 

"There  is  no  body  of  federal  common  law 
separate  and  distinct  from  the  common  law 


COMMON  LAW 


568 


COMMON  LAW 


existing  in  the  several  states  in  the  sense 
that  there  is  a  body  of  statute  law  enacted  by 
congress  separate  and  distinct  from  the  body 
of  statute  law  enacted  by  the  several  states. 
But  it  is  an  entirely  different  thing  to  hold 
that  there  is  no  common  law  in  force  general- 
ly throughout  the  United  States,  and  that 
the  countless  multitude  of  interstate  com- 
mercial transactions  are  subject  to  no  rules 
and  burdened  by  no  restrictions  other  than 
those  expressed  in  the  statutes  of  congress ;" 
Western  Union  Tel.  Co.  v.  Pub.  Co.,  181  U.  S. 
92,  21  Sup.  Ct.  5G1,  45  L.  Ed.  7G5,  following 
Smith  v.  Alabama,  124  U.  S.  465,  8  Sup.  Ct. 
564,  31  L  Ed.  308 ;  Wheaton  v.  Peters,  8  Pet. 
(U.  S.)  591,  8  L.  Ed.  1055;  New  York  C.  R. 
Co.  v.  Lockwood,  17  Wall.  (U.  S.)  357,  21  L. 
Ed.  627.  There  is  an  elaborate  opinion  in 
Murray  v.  Ry.  Co.,  62  Fed.  24,  on  this  sub- 
ject. See  also  36  Amer.  L.  Rev.  498;  18 
Harv.  L.  Rev.  134. 

Sir  F.  Pollock  expresses  the  opinion  that 
there  is  a  common  law  of  the  United  States 
as  distinguished  from  that  of  a  state.  3 
Encycl.  of  Laws  of  England  142. 

In  general,  too,  the  statutes  of  England 
are  not  understood  to  be  included,  except 
so  far  as  they  have  been  recognized  by 
colonial  legislation,  but  the  course  pursued 
has  been  rather  to  re-enact  such  English 
statutes  as  were  deemed  applicable  to  our 
case.  Those  passed  since  the  settlement  of 
the  particular  colony  are  not  in  force,  un- 
less specially  accepted  by  it,  or  expressly 
made  to  apply  to  it;  if  these  were  suitable 
to  the  condition  of  the  colony  they  were 
usually  accepted ;  Baker  v.  Mattocks,  Quincy 
(Mass.)  72;  Cathcart  y.  Robinson,  5  Pet. 
(U.  S.)  280,  8  L.  Ed.  120;  Morris  v.  Vander- 
en,  1  Dall.  (U.  S.)  64,  1  L.  Ed.  38. 

There  cannot  be  said  to  be  a  settled  rule 
as  to  what  date  is  to  be  fixed  as  determining 
what  British  statutes  were  received  as  part 
of  the  common  law.  Many  states  fix  July 
4,  1776.  This  is  provided  by  constitution 
in  Florida,  Maryland  and  Rhode  Island,  and 
by  statute  in  Kentucky;  in  other  states  4th 
Jac.  I.  is  the  period  named  after  which  Eng- 
lish statutes  are  not  included,  as  Arkansas, 
Colorado,  Illinois,  Indiana,  Missouri,  Vir- 
ginia, Wyoming  (but  the  last  four  except 
stats.  43  Eliz.  c.  6,  §  2;  13  Eliz.  c,  8  and  37 
Hen.  VIII.  c.  9)  ;  McCool  v.  Smith,  1  Black 
(U.  S.)  459,  17  L  Ed.  218;  Scott  v.  Lunt,  7 
Pet.  (U.  S.)  596,  8  L.  Ed.  797;  Baker's  Adm'r 
v.  Crandall,  78  Mo.  587,  47  Am.  Rep.  126; 
Herr  v.  Johnson,  11  Colo.  393,  18  Pac.  342. 
As  to  English  statutes  in  force  in  Pennsyl- 
vania, see  Report  of  the  Judges  in  Roberts, 
Eng.  Stat.;  Boehm  v.  Engle,  1  Dall.  (U.  S.) 
15,  1  L.  Ed.  17;  Biddle  v.  Shippen,  1  Dall. 
(U.  S.)  19,  1  L.  Ed.  19;  Respublica  v.  Mesca, 
1  Dall.  (U.  S.)  73,  1  L  Ed.  42;  Shewel  v. 
Fell.  3  Yeates  (Pa.)  17;  id,,  4  Yeates  (Pa.) 
47;  Johnson  v.  Hessel,  134  Pa.  315,  19  Atl. 
700.  Generally,  it  may  be  stated  that  the 
statutes  adopted  prior  to  the  Revolution,  and 


held  applicable  under  rules  stated,  are  ac- 
cepted as  part  of  the  common  law ;  Hamil- 
ton v.  Kneeland,  1  Nev.  40;  Sackett  v.  Sac- 
kett,  8  Pick.  (Mass.)  309;  Coburn  v.  Harvey, 
18  Wis.  148.  But  see  Matthews  v.  Ansley,  31 
Ala.  20;  Bogardus  v.  Trinity  Church,  4 
Paige  (N.  Y.)  178;  Crawford  v.  Chapman, 
17  Ohio  452 ;  In  re  Lampbere,  61'  Mich.  105, 
27  N.  W.  8S2.  Upon  the  subject  of  English 
statutes  as  part  of  the  common  law  see  an 
able  note  on  the  whole  subject  of  this  title 
in  22  L.  R.  A.  501.  By  reason  of  the  modi- 
fications arising  out  of  our  different  condi- 
tion, and  those  established  by  American  stat- 
utes and  by  the  course  of  American  adjudica- 
tion, the  common  law  of  America  differs 
widely  in  many  details  from  the  common  law 
of  England ;  but  the  fact  that  this  difference 
has  not  been  introduced  by  violent  changes, 
but  has  grown  up  from  the  native  vigor  of 
the  system,  identifies  the  whole  as  one  juris- 
prudence. 

See  works  of  Franklin,  by  Sparks,  vol.  4, 
p.  271,  as  to  the  adoption  of  the  common 
law  in  America ;  see  also  Cooley,  Const 
Lim.  (2d  ed.)  34,  n.  35;  Pierce  v.  Swan 
Point  Cemetery,  10  R.  I.  227,  14  Am.  Rep. 
667;  2  Wait,  Actions  and  Defences,  276; 
Reinsch,  English  Common  Law  in  the  Early 
American  Colonies,  1  Sel.  Essays  in  Anglo- 
Amer.  L.  H.  367 ;  Sioussat,  Extension  of 
English  Statutes  to  the  Plantations,  id.  416; 
Jenks,  Teutonic  Law,  id.  49;  Ed.  Combina- 
tions 216 ;  James  C.  Carter,  The  Law,  etc. ; 
O.  W.  Holmes,  The  Common  Law;  Gray, 
Sources  of  the  Law ;  23  Q.  B.  D.  611,  where 
Bowen,  L.  J.,  speaks  of  it  as  "an  arsenal  of 
sound  common  sense." 

A  person  has  no  property,  no  vested  inter- 
est, in  any  rule  of  common  law.  That  is 
only  one  of  the  forms  of  municipal  law,  and 
is  no  more  sacred  tban  any  other.  Rights 
of  property  which  have  been  created  by  the 
common  law  cannot  be  taken  away  without 
due  process,  but  the  law  itself,  as  a  rule  of 
conduct,  may  be  changed  at  will  ...  of 
the  legislature,  unless  prevented  by  consti- 
tutional limitations.  Indeed,  the  great  office 
of  statutes  is  to  remedy  defects  in  the  com- 
mon law  as  they  are  developed,  and  to  adapt 
it  to  the  changes  of  time  and  circumstances ; 
Munn  v.  Illinois,  94  U.  S.  113,  134,  24  L.  Ed. 
77 ;  quoted  and  approved,  Second  Employers' 
Liability  Cases,  223  U.  S.  1,  50,  32  Sup.  Ct 
169,  56  L.  Ed.  327,  38  L.  R.  A.  (N.  S.)  44. 
See  Law  Merchant. 

COMMON  LAW  MARRIAGE.  See  Mar- 
riage. 

COMMON  LAW  PROCEDURE  ACTS.     See 

Procedure  Acts. 

COMMON  NUISANCE.  One  which  affects 
the  public  in  general,  and  not  merely  some 
particular  person.  1  Hawkins,  PL  Cr.  197 
See  Nuisance. 


COMMON  PLEAS 


569 


com:,  rs  in 


COMMON  PLEAS.  The  name  of  a  court 
having  jurisdiction  generally  of  civil  actions. 

Such  pleas  or  actions  are  brought  by  pri- 
vate persons  against  private  persons,  or  by 
the  government,  when  the  cause  of  action  is 
of  a  civil  nature.  In  England,  whence  we 
derived  this  phrase,  common  pleas  are  so 
called  to  distinguish  them  from  pleas  of  the 
crown. 

The  Court  of  Common  Picas  in  England  consisted 
of  one  chief  and  four  puisne  (associate)  Justice*.  It 
is  thought  by  some  to  have  been  established  by 
king  John  for  the  purpose  of  diminishing  the  power 
of  the  aula  regis,  but  Is  referred  by  some-  writers 
to  a  much  earlier  period.  8  Co.  289  ;  1  Poll.  &  Maltl. 
177  ;  Termes  de  la  Ley ;  3  Bla.  Comm.  39.  It  exer- 
cised an  exclusive  original  jurisdiction  In  many 
classes  of  civil  cases.  See  3  Sharsw.  Bla.  Comm.  38, 
n.  The  right  of  practising  in  this  court  was  for  a 
long  time  confined  to  two  classes  of  practitioners, 
limited  in  number;  see  Serjeant;  but  is  now 
thrown  open  to  the  bar  generally.  Its  jurisdiction  Is 
merged  In  the  High  Court  of  Justice.  See  Courts 
of  England. 

Courts  of  the  same  name  exist  In  many  states. 

COMMON  RECOVERY.  A  judgment  re- 
covered in  a  fictitious  suit,  brought  against 
the  tenant  of  the  freehold,  in  consequence  of 
a  default  made  by  the  person  who  is  last 
vouched  to  warranty  in  the  suit,  which  re- 
covery, being  a  supposed  adjudication  of  the 
right,  binds  all  persons,  and  vests  a  free  and 
absolute  fee-simple  in  the  recoverer. 

A  common  recovery  is  a  kind  of  conveyance,  and 
Is  resorted  to  when  the  object  Is  to  create  an  ab- 
solute bar  of  estates  tail,  and  of  the  remainders 
and  reversions  expectant  on  the  determination  of 
such  estates.  2  Bla.  Com.  357.  Though  it  has  been 
used  in  some  of  the  states,  this  form  of  conveyance 
is  nearly  obsolete,  easier  and  less  expensive  modes 
of  making  conveyances,  which  have  the  same  effect, 
having  been  substituted  ;  2  Bouvler,  Inst.  nn.  2092, 
2096;  Frost  v.  Cloutman,  7  N.  H.  9,  26  Am.  Dec. 
723;  Lyle  v.  Richards,  9*  S.  &  R.  (Pa.)  322;  Stump  v. 
Findlay,  2  Rawle  (Pa.)  16S,  19  Am  Dec,  632  ;  Sharp 
v.  Thompson,  1  Whart  (Pa.)  151 ;  Dow  v.  Warren, 
6  Mass.   328. 

COMMON  SCHOOLS.  Schools  for  general 
elementary  instruction,  free  to  all  the  pub- 
lic.    2  Kent  195.     See  Schools. 

COMMON  SCOLD.  One  who,  by  the  prac- 
tice of  frequent  scolding,  disturbs  the  neigh- 
borhood.    Bish.  Crim.  Law  §  147. 

The  offence  of  being  a  common  scold  is  cog- 
nizable at  common  law.  It  is  a  particular 
form  of  nuisance,  and  was  punishable  by 
the  ducking-stool  at  common  law,  in  place 
of  which  punishment  fine  and  imprisonment 
are  substituted  in  the  United  States;  Whart. 
Cr.  L.  1442;  James  v.  Com.,  12  S.  &  R.  (Pa.) 
220.  See  1  Term  748;  6  Mod.  11;  4  Rog. 
90 ;  1  Russ.  Cr.  302 ;  Roscoe,  Cr.  Ev.,  Sth  ed. 
824;  Baker  v.  State,  53  N.  J.  L.  45,  20  Atl. 
858. 

COMMON  SEAL.  The  seal  of  a  corpora- 
tion.    See  Seal. 

COMMON  SERJEANT.  A  judicial  officer 
of  the  corporation  of  the  city  of  London.  He 
attends  the  Lord  Mayor  and  Court  of  Alder- 
men on  court  days  and  acts  as  one  of  the 
judges  of  the  Central  Criminal  Court     Whart. 


COMMON,  TENANTS  IN.     See  Estate  in 

Common. 

COMMON  TRAVERSE.    See  Traverse. 

COMMON  VOUCHEE.  In  common  recov- 
eries, the  person  who  is  vouched  to  warran- 
ty. In  this  fictitious  proceeding  the  crier  of 
the  court  usually  performs  the  office  of  a 
common  vouchee.    2  Bla.  Com.  :: 

COMMONALTY.     The   common 
England,  as  distinguished  from  the  king 
nobles. 

The  body  of  a  society  or  corporation,  as 
distinguished  from  the  officers.  1  Perr..  &  D. 
■j. !.';.  Charters  of  incorporation  of  the  va- 
rious tradesmen's  societies,  etc.,  in  El 
are  usually  granted  to  the  master,  wardens, 
and  commonalty  of  such  corporation. 

COMMONER.  One  possessing  a  right  of 
common. 

COMMONS.     Those  subjects  of  the 

li.  h  nation  who  are  not  noblemen.  They  are 

represented   in  parliament  by   the  hou 
commons. 

COMMONWEALTH.  A  word  which  prop- 
erly signifies  the  common  weal  or  public  pol- 
icy;  sometimes  it  is  used  to  designate  a  re- 
publican  form  of  government.  But  it  was 
used  in  royal  times  in  reference  to  England 
17  L.  Q.  R.  131. 

The  English  nation  during  the  time  of 
Cromwell  was  called  The  Commonwealth.  It 
is  the  legal  title  of  the  states  of  Massachu- 
setts, Pennsylvania,  Kentucky,  and  Virginia. 

C0MM0RANT.  One  residing  in  a  particu- 
lar town,  city,  or  district    Barnes  162. 

COMMORIENT ES.  Those  who  perish  at 
the  same  time  in  consequence  of  the  same 
calamity.     See  Survivor;    Death. 

COMMUNE      CONCILIUM.       The     King's 

Council.     See  Privy  Council. 

C0MMUNI  DIVIDUND0.  In  Civil  Law. 
An  action  which  lies  for  those  who  have  prop- 
erty in  common,  to  procure  a  division.  It 
lies  where  parties  hold  land  in  common  but 
not  in  partnership.     Calvinus,  Lex. 

COMMUNINGS.  In  Scotch  Law.  The  ne- 
gotiations preliminary  to  a  contract 

C0MMUNI0  B0N0RUM  (Lat).  In  Civil 
Law.    A  community   of  goods. 

When  a  person  has  the  management  of  common 
property,  owned  by  himself  and  others,  not  as  part- 
ners, he  Is  bound  to  account  for  the  proQts,  and  Is 
entitled  to  be  reimbursed  for  the  expenses  which  he 
has  sustained  by  virtue  of  the  quasi-contract  which 
is  created  by  his  act,  called  communio  bon 
Vicat ;    1  Bouvier,  Inst.  n.  907,  note. 

COMMUNITY  (Lat  communis,  common). 
In  Civil  Law.  A  corporation  or  body  politic. 
Dig.  3.  4. 

"We  can  find  in  our  law  books  no  such 
terms  as  corporation,  body  corporate,  body 
politic,  though  we  may  read  much  of  con- 
vents, chapters  and  communities.     The  larg- 


COMMUNITY 


570 


COMMUNITY 


est  term  in  general  use  is  community,  com- 
monalty or  commune,  in  Latin,  communitas 
or  communa.  It  is  a  large,  vague  word. 
.  .  .  But  we  dare  not  translate  it  by  cor- 
poration, for  if,  on  the  one  hand,  it  is  de- 
scribing cities  and  boroughs  which  already 
are,  or  at  least  are  on  their  way  to  become, 
corporations,  it  will  stand  equally  well  for 
counties,  hundreds  and  townships  which  in 
the  end  have  failed  to  acquire  a  corporate 
character.  ..."  1  Poll.  &  Maitl.  Hist 
E.  L.  494. 

In  French  Law.  A  species  of  partnership 
wbich  a  man  and  woman  contract  when  they 
are  lawfully  married  to  each  other. 

Conventional  community  is  that  which  is 
formed  by  express  agreement  in  the  contract 
of  marriage. 

By  this  contract  the  legal  community  which  would 
otherwise  subsist  may  be  modified  as  to  the  propor- 
tions which  each  shall  take,  and  as  to  the  things 
which  shall   compose  it. 

Legal  community  is  that  which  takes  place 
by  virtue  of  the  contract  of  marriage  itself. 

The  French  system  of  community  prop- 
erty was  known  as  the  dotal  system.  The 
Spanish  system  was  the  Ganancial  System, 
q.  v.  The  conquest  of  Mexico  by  the  Span- 
iards and  their  acquisition  of  the  Florida 
territory  resulted  in  the  introduction  on 
American  soil  of  the  Spanish  system.  Lou- 
isiana, originally  a  French  colony,  was  aft- 
erwards ceded  to  Spain  when  the  Spanish 
law  was  introduced.  It  again  reverted  to 
the  French  and  from  them  was  acquired  by 
the  United  States.  The  Louisiana  Code  has, 
with  slight  modifications,  adopted  the  dotal 
system  of  the  Code  NapoUon  as  regards  the 
separate  rights  of  husband  and  wife,  but  as 
to  tbeir  common  property  it  retained  the  es- 
sential features  of  the  Spanish  ganancial  sys- 
tem. Texas  and  California  have  adopted  the 
community  system  of  Spain  and  Mexico  or 
modified  it  by  their  constitutions.  New  Mex- 
ico appears  to  have  followed  the  Spanish 
law  of  property  rights  of  married  persons 
in  its  entirety.  The  community  system  as 
adopted  in  older  community  states  has  been 
adopted  by  Nevada,  Washington,  and  Idaho, 
with  certain  modifications.  Hence  it  may  be 
said  that  the  American  community  system 
prevails  at  this  day  in  Louisiana,  Texas,  Cal- 
ifornia, Nevada,  Arizona,  Washington,  Ida- 
ho, Montana,  and  New  Mexico,  and  in  Porto 
Rico,  and  is  indebted  to  Spain  for  its  origin. 
See  Ballinger,  Community  Property,  §  6; 
Chavez  v.  McKnight,  1  N.  M.  147.  It  is  said 
to  be  the  only  remains  in  those  states  (except 
Louisiana)  of  the  civil  law. 

Property  (in  Washington  Territory)  acquir- 
ed during  marriage  with  community  funds 
became  an  acquet  of  the  community  and  not 
the  sole  property  of  the  one  in  whose  name 
the  property  was  bought,  although  by  the 
law  existing  at  the  time  the  husband  was 
given   the   management,   control   and  power 


of  sale  of  such  property;  this  right  being 
vested  in  him,  not  because  he  was  the  ex- 
clusive owner,  but  because  by  law  he  was 
created  the  agent  of  the  community.  War- 
burton  v.  White,  176  U.  S.  484,  20  Sup.  Ct 
404,  44  L.  Ed.   555. 

The  community  embraces  the  profits  of  all 
the  effects  of  which  the  husband  has  the  ad- 
ministration and  enjoyment,  either  of  right 
or  in  fact ;  and  of  the  estates  which  they 
may  acquire  during  the  marriage,  either  by 
donations  made  jointly  to  them,  or  through 
their  outlay  or  industry  as  well  as  the 
fruits  of  the  bienos  proprios  which  each  one 
brought  to  the  matrimony,  and  of  all  that 
which  this  acquisition  produced  by  whatever 
title  acquired;  Ballinger,  Community  Prop. 
§  5,  or  by  purchase,  or  in  any  other  similar 
way,  even  although  the  purchase  be  made  in 
the  name  of  one  of  the  two,  and  not  of  both  ; 
because  in  that  case  the  period  of  time  when 
the  purchase  is  made  is  alone  attended  to, 
and  not  the  person  who  made  the  purchase ; 
Davidson  v.  Stuart,  10  La.  146 ;  Brown  v. 
Cobb,  10  La.  172 ;  Clark  v.  Norwood,  12  La. 
Ann.  598.  The  debts  contracted  during  the 
marriage  enter  into  the  community,  and  must 
be  acquitted  out  of  the  common  fund;  but 
not  the  debts  contracted  before  the  marriage. 

The  husband  has  the  right  to  manage  and 
control  the  community  property  during  its 
existence;  Warburton  v.  White,  176  U.  S. 
4S4,  20  Sup.  Ct.  404,  44  L.  Ed.  555 ;  Stockstill 
v.  Bart,  47  Fed.  231 ;  and  hence  he  can  alien- 
ate or  encumber  during  coverture,  even 
without  the  consent  or  joinder  of  the  wife, 
any  of  the  property  belonging  to  the  com- 
munity ;  Spreckels  v.  Spreckels,  116  Cal. 
339,  48  Pac.  228,  36  L.  R.  A.  497,  5S  Am.  St 
Rep.  170 ;  Cook  v.  Vault  Co.,  104  Ky.  473,  47 
S.  W.  325 ;  Moore  v.  Moore,  73  Tex.  383,  11 
S.  W.  396;  Hearfield  v.  Bridges,  75  Fed.  47, 
21  C.  C.  A.  212.  He  must  act  in  good  faith 
toward  the  wife,  and  if  he  disposes  of  prop- 
erty with  intent  to  defraud  her,  his  convey- 
ance or  disposal  will  be  voidable  on  that 
ground,  but  a  bona  fide  purchaser  is  pro- 
tected ;  Lord  v.  Hough,  43  Cal.  581 ;  Cotton 
v.  Cotton,  34  La.  Ann.  858 ;  Hagerty  v.  Har- 
well, 16  Tex.  663.  But  in  Washington  the 
husband  has  no  right  to  sell  or  encumber  the 
property  unless  the  wife  joins  with  him ; 
Kimble  v.  Kimble,  17  Wash.  75,  49  S.  W.  216. 
In  general  a  sale  or  conveyance  of  the  prop- 
erty by  the  wife  alone  is  absolutely  void ; 
Tryon  v.  Sutton,  13  Cal.  490;  Humphries  v. 
Sorenson,  33  Wash.  563,  74  Pac.  690. 

The  property  is  liable  for  the  community 
debts;  Succession  of  Kerley,  18  La.  Ann. 
583;  Barnett  v.  O'Loughlin,  14  Wash.  259, 
44  Pac.  267 ;  and  it  is  in  general  also  liable 
for  the  husband's  separate  debts;  Schuyler 
v.  Broughton,  70  Cal.  2S2,  11  Pac.  719;  Lee 
v.  Henderson,  75  Tex.  190,  12  S.  W.  981; 
Gund  v.  Parke,  15  Wash.  393,  46  Pac.  408; 
contra  as  to  realty;    Ross  v.   Howard,  31 


COMMUNITY 


571 


COMMUTATION 


Wash.  393,  72  Pac.  74.  The  husband  usually 
sues  alone  in  his  own  name;  Spreckels  v. 
Spreckels,  11G  CaL  330,  48  Pac.  228,  36  L.  It. 
A.  497,  58  Am.  St.  Rep.  170;  Jordan  v.  Moore, 
65  Tex.  363;  Crow  v.  Van  Sickle,  6  Nev. 
146;  Ford  v.  Brooks,  35  La.  Ann.  157.  But 
in  Washington,  since  the  husband  and  wife 
have  equal  interests  in  the  community,  all 
actions  must  be  brought  by  the  husband  and 
wife  jointly;  Parke  v.  City  of  Seattle,  8 
Wash.  78,  35  Pac.  594, 

The  community  is  dissolved  by  the  death 
of  either  spouse ;  Thompson  v.  Vance,  110 
La.  20,  34  South.  112;  by  divorce;  Bi 
Biggi,  9S  Cal.  35,  32  Pac.  803,  35  Am.  St. 
Rep.  141;  (contra,  in  Porto  Rico,  Garrozi  v. 
Dastas,  204  U.  S.  64,  27  Sup.  Ct.  2lM.  51  L. 
Ed.  309);  and  by  a  judicial  decree  following 
a  suit  for  separation  of  property;  Succes- 
sion of  Bothick,  52  La.  Ann.  1803,  28  South. 
458.  A  culpable  abandonment  of  one  spouse 
by  the  other  may  entitle  the  party  abandon- 
ed to  the  rights  in  the  community  that  fol- 
low upon  its  dissolution;  Cullers  v.  James, 
06  Tex.  494,  1  S.  W.  314;  mere  voluntary 
separation  is  not  sufficient;  Muse  v.  Yar- 
borough,  11  La.  521;  nor  is  insanity;  Suc- 
cession of  Bothick,  52  La.  Ann.  1863,  28 
South.  45S. 

Either  surviving  spouse  may  sell  his  or 
her  interest  in  the  absence  of  fraud  upon  the 
rights  of  others;  Harvey  v.  Cummings,  68 
Tex.  599,  5  S.  W.  513 ;  but  the  survivor  can- 
not, except  for  the  payment  of  community 
debts,  alienate  the  interest  of  the  heirs  of 
the  deceased  spouse ;  Meyer  v.  Opperman, 
76  Tex.  105,  13  S.  W.  174 ;  Biossat  v.  Sulli- 
van, 21  La.  Ann.  505.  The  general  rule  is 
that  one  half  of  the  property  vests  in  the 
surviving  spouse  and  one  half  in  the  heirs 
of  the  deceased ;  Payne  v.  Payne,  IS  Cal. 
291;  George  v.  Delaney,  111  La.  700,  35 
South.  S94  ;  Chadwick  v.  Tatem,  9  Mont.  354, 
23  Pac.  729;  Wortman  v.  Vorhies,  14  Wash. 
152,  44  Pac.  129. 

The  effects  which  compose  the  community 
of  gains  are  divided  into  two  equal  portions 
between  the  heirs  at  the  dissolution  of  the 
marriage ;  La.  Civ.  Code  2375.  See  Pothier, 
Contr. ;  Toullier.  But  the  wife's  interest  in 
the  community  property  is  residuary  and  she 
is  not  the  owner  of  any  specific  property  be- 
fore the  debts  are  paid,  whether  to  third 
persons  or  to  the  succession  of  her  husband; 
Berthelot  v.  Fitch,  45  La.  Ann.  3S9,  12  South. 
625. 

A  right  to  recover  damages  for  personal 
injuries,  if  acquired  during  marring'',  is 
considered  community  property;  Neale  v.  Ry. 
Co.,  94  Cal.  425,  29  Pac.  954. 

See   Acq  i 

COMMUTATION.  The  change  of  a  punish- 
ment to  which  a  person  has  been  condemned 
into  a  less  severe  one.  This  can  be  granted 
only  by  the  authority  in  which  the  pardoning 
power  resides.     See  Ex  parte  Janes,  1  Nev. 


321;    In  re  Victor,  31  Ohio  St.  206;    Lee  v. 
Murphy,  22  Gratt  (Va.)  789,  12  Am.  Re; 
See  Pbisoneu. 

COMMUTATIVE  CONTRACT.  In  Civil 
Law.  One  in  which  each  of  the  contracting 
parties  gives  and  receives  an  equivalent. 

The  contract  of  sale  is  of  ;  The 

seller  gives  the  thing  Bold,  and  n 
price,   which  is  the  equivalent      i 
gives  the  price,  and   receives  the  thing 
which  is  the  equivalent.     Such  contract 
usually  distributed  into  foul- 
ly:   Do  ut  des   (I  give  that  you   may  give); 
Facio  ut  facias  (I  do  that  you  may  do);   Fac- 
ia  ut  des  (I  do  that  you  may  give);    Do  ut 
(I  give  that  you   may  do).     Pothier, 
Obi.  n.  13.    See  La.  Civ.  Code,  art  17G1. 

COMPACT.  An  agreement  A  contract 
between  parties,  which  creates  obligations 
and  rights  capable  of  being  enforced,  and 
contemplated  as  such  between  the  parties,  In 
their  distinct  and  independent  characters. 
Story,  Const  b.  3,  c.  o ;  Rutherf.  Inst  b.  2, 
c.  6,  §  1. 

The  parties  may  be  nations,  states,  or  in- 
dividuals;  but  the  constitution  of  the  Unit- 
ed States  declares  that  "no  state  shall,  with- 
out the  consent  of  congress,  enter  into  agree- 
ment or  compact  with  another  state,  or  with 
a  foreign  power."  See  Marlatt  v.  Silk,  11 
Pet.  (U.  S.)  l,  9  L.  Ed.  <\<)<j:   Poole  v.  Fl< 

11  Pet  (U.  S.)  1S5,  9  L.  lA.  680;    Gn 
Biddle,  8  Wheat.  (U.  S.)  1,  5  L.  Ed.  547. 

COMPANIONS.     In  French  Law.     A 
al  term,  comprehending  all  persons  who  com- 
pose  the  crew  of  a  ship  or  vessel.     Pothier, 
Mar.  Contr.  n.  103. 

COMPANY.  An  association  of  a  number 
of  individuals  for  the  purpose  of  carrying  on 
some  legitimate  business. 

This  term' Is  not  synonymous  with  partnership, 
though  every  such  unincorporated  company  is  a 
partnership.  Usage  has  reserved  the  term  to  as- 
sociations whose  members  are  in  greater  number, 
their  capital  more  considerable,  and  their  enter- 
prises greater,  either  on  account  of  their  risk  or 
importance. 

When  these  companies  are  authorized  by  the  gov- 
ernment, they  are  known  by  the  name  of  corpora- 
tions. 

The  proper  signification  of  the  word  "com- 
pany" when  applied  to  a  person  engaged  iu 
trade,  denotes  those  united  for  the  same  pur- 
pose or  in  a  joint  concern.  It  is  commonly 
used  in  this  sense  or  as  Indicating  a  partner- 
ship.    Palmer  v.  Pinkham,  .';.".  Mr.  32. 

Sometimes  the  word   is   us»  1   to   re] 
those  members  of  a  partnership  whose  D 
do  not  appear  in  the  name  of  the  firm.     See 

12  Toullier  97. 

COMPARATIVE  JURISPRUDENCE.  See 
JUBISPKUDENCB. 

COMPARATIVE  NEGLIGENCE.  That 
doctrine  in  the  law  of  negligence  by  which 
the  negligence  of  the  parties  is  compared  in 
the    degree    of     "slight"     "ordinary,"     and 


COMPARATIVE  NEGLIGENCE 


572 


COMPENSATION 


"gross"  negligence,  and  a  recovery  permit- 
ted notwithstanding  the  contributory  negli- 
gence of  the  plaintiff,  when  the  negligence 
of  the  plaintiff  is  slight  and  the  negligence 
of  the  defendant  gross,  but  refused  when  the 
plaintiff  has  been  guilty  of  a  want  of  ordi- 
nary care  contributing  to  his  injury;  or 
when  the  negligence  of  the  defendant  is  not 
gross,  but  only  ordinary  or  slight  when  com- 
pared under  the  circumstances  of  the  case 
with  the  contributory  negligence  of  the  plain- 
tiff. Chicago,  B.  &  Q.  R.  Co.  v.  R.  Co.,  103 
111.  512;  Calumet  Iron  &  Steel  Co.  v.  Mar- 
tin, 115  111.  358,  3  N.  E.  456 ;  Rockford,  R.  I. 
&  St.  L.  R.  Co.  v.  Delaney,  82  111.  198,  25  Am. 
Rep.  308.  This  doctrine  existed  in  the  civil 
law,  and  in  some  instances  in  admiralty,  but 
it  did  not  exist  in  the  states  other  than  Illi- 
nois and  Louisiana. 

The  doctrine  of  comparative  negligence  no 
longer  obtains  in  Illinois ;  it  must  now  be 
established  in  actions  for  personal  injuries, 
or  for  death  by  wrongful  act  that  the  plain- 
tiff, or  the  deceased,  was  exercising  ordinary 
care;  Imes  v.  R.  Co.,  105  111.  App.  37;  see 
Sluder  v.  Transit  Co.,  189  Mo.  107,  88  S.  W. 
648,  5LR.A.  (N.  S.)  239.  It  has  been  re- 
vived in  the  Federal  Employer's  Liability  Act 
of  1908. 

COMPATIBILITY.  Such  harmony  be- 
tween the  duties  of  two  offices  that  they 
may  be  discharged  by  one  person. 

C0MPENSACI0N.     In    Spanish    Law.     The 

extinction  of  a  debt  by  another  debt  of  equal 
dignity  between  persons  who  have  mutual 
claims  on  each  other. 

C0MPENSATI0  CR I  MINIS.  The  compen- 
sation or  set-off  of  one  crime  against  anoth- 
er: for  example,  in  questions  of  divorce,  where 
one  party  claims  the  divorce  on  the  ground 
of  adultery  of  his  or  her  companion,  the 
latter  may  show  that  the  complainant  has 
been  guilty  of  the  same  offence,  and,  having 
himself  violated  the  contract,  cannot  com- 
plain of  its  violation  on  the  other  side.  This 
principle  is  incorporated  in  the  codes  of  most 
civilized  nations.  See  1  Hagg.  Cons.  144 ;  1 
Hagg.  Eccl.  714;  Wood  v.  Wood,  2  Paige, 
Ch.  (N.  Y.)  108,  2  D.  &  B.  64 ;  Bishop,  Marr. 
&  D.  §§  393,  394. 

COMPENSATION.  In  Chancery  Practice. 
Something  to  be  done  for  or  paid  to  a  per- 
son of  equal  value  with  something  of  which 
he  has  been  deprived  by  the  acts  or  negli- 
gence of  the  party  so  doing  or  paying. 

When  a  simple  mistake,  not  a  fraud,  ef- 
fects a  contract,  but  does  not  change  its 
essence,  a  court  of  equity  will  enforce  it, 
upon  making  compensation  for  the  error. 
"The  principle  upon  which  courts  of  equity 
act,"  says  Lord  Chancellor  Eldon,  "is  by  all 
the  authorities  brought  to  the  true  standard, 
that  though  the  party  had  not  a  title  at  law, 
because  he  had  not  strictly  complied  with 
the  terms  so  as  to  entitle  him  to  an  action 


(as  to  time,  for  instance),  yet  if  the  time, 
though  introduced  (as  some  time  must  be 
fixed,  where  something  is  to  be  done  on  one 
side,  as  a  consideration  for  something  to  be 
done  on  the  other),  is  not  of  the  essence  of 
the  contract,  a  material  object,  to  which 
they  looked  in  the  first  conception  of  it,  even 
though  the  lapse  of  time  has  not  arisen  from 
accident,  a  court  of  equity  will  compel  the 
execution  of  the  contract  upon  this  ground, 
that  one  party  is  ready  to  perform,  and  that 
the  other  may  have  a  performance  in  sub- 
stance if  he  will  permit  it ;"  13  Ves.  Ch.  287. 
See  10  id.  505 ;  13  id.  73,  81,  426 ;  6  id.  575 ; 

1  Cox,  Ch.  59. 

In  Civil  Law.  A  reciprocal  liberation  be- 
tween two  persons  who  are  both  creditors 
and  debtors  of  each  other.  Est  debiti  et 
crediti  inter  se  contributio.     Dig.  16.  2.  1. 

It  resembles  in  many  respects  the  common-law 
set-off.  The  principal  difference  is  that  a  set-off 
must  be  pleaded  to  be  effectual;  whereas  com- 
pensation is   effectual   without   any  such   plea.     See 

2  Bouvier,  Inst.  n.  1407. 

It  may  be  legal,  by  way  of  exception,  or 
by  reconvention;  Blanchard  v.  Cole,  8  La. 
158 ;  8  Dig.  16.  2 ;  Code,  4.  31 ;  Inst.  4.  6.  30 ; 
Burge,  Suret,  b.  2,  c.  6,  p.  181. 

It  takes  place  by  mere  operation  of  law, 
and  extinguishes  reciprocally  the  two  debts 
as  soon  as  they  exist  simultaneously,  to  the 
amount  of  their  respective  sums.  It  takes 
place  only  between  two  debts  having  equally 
for  their  object  a  sum  of  money,  or  a  certain 
quantity  of  consumable  things  of  one  and  the 
same  kind,  and  which  are  equally  liquidated 
and  demandable.  It  takes  place  whatever 
be  the  cause  of  the  debts,  except  in  case, 
first,  of  a  demand  of  restitution  of  a  thing 
of  which  the  owner  has  been  unjustly  de- 
prived ;  second,  of  a  demand  of  restitution 
of  a  deposit  and  a  loan  for  use;  third,  of  a 
debt  which  has  for  its  cause  aliments  declar- 
ed not  liable  to  seizure.  La.  Civ.  Code  2203- 
2208.  See  Dorvin  v.  Wiltz,  11  La.  Ann.  520; 
Stewart  v.  Harper,  16  La.  Ann.  181. 

As  to  taking  property,  see  Eminent  Do- 
main. 

In  Criminal  Law.  Recrimination,  which 
see. 

C0MPERT0RIUM.     In    the    Civil    Law.     A 

judicial  inquest  by  delegates  or  commission- 
ers to  find  out  and  relate  the  truth  of  a 
cause.    Wharton. 

COMPERUIT  AD  DIEM  (Lat.  he  appear- 
ed at  the  day).  A  plea  in  bar  to  an  action 
of  debt  on  a  bail  bond.  The  usual  replica- 
tion of  this  plea  is,  nul  tiel  record:  that 
there  is  not  any  such  record  of  appearance 

of  the  said .    For  forms  of  this  plea,  see 

5  Wentworth  470;  Lilly,  Entr.  114;  2  Chit. 
PI.  527. 

When  the  issue  is  joined  on  this  plea,  the 
trial  is  by  the  record.  See  1  Taunt.  23; 
Tidd,  Pr.  239.  And  see,  generally,  Comyns, 
Dig.  Pleader  (2  W.  31)  ;  7  B.  &  C.  478. 


COMPITKNCY 


573 


COM  TLA  INT 


COMPETENCY.  The  legal  fitness  or  abil- 
ity of  a  witness  to  be  heard  on  the  trial  of  a 
cause  That  quality  of  written  or  other  evi- 
dence which  renders  it  proper  to  be  given 
on  the  trial  of  a  cause. 

There  Is  a  difference  between  competency  and 
credibility.  A  wituess  may  be  competent,  and,  on 
examination,  his  story  may  be  so  contradictory  and 
Improbable  that  he  may  not  be  believed;  on  the 
contrary,  he  may  be  Incompetent,  and  yet  be  per- 
fectly credible  If  he  were  examined. 

The  court  are  the  sole  judges  of  the  com- 
petency of  a   mtnesa,   and  may,  for  the  pur- 
pose of  deciding  whether  the  witness  is  or 
is  not  competent,  ascertain  ail  the 
essary  to  form  a  judgment  ;  1  Greenl.  Ev.  § 

J 'ri ma  fade  every  person  offered  is  a  com- 
petent witness,  ami  must  be  received,  unless 
his  incompetency  appears;  0  State  Tr.  <'>r>2. 
In  French  Law.  The  right  in  a  court  to 
exercise  jurisdiction  in  a  particular  case: 
as.  where  the  law  gives  jurisdiction  to  the 
court  when  a  thousand  francs  shall  be  in 
dispute,  the  court  is  competent  if  the  sum 
demanded  is  a  thousand  francs  or  upwards, 
although  tbe  plaintiff  may  ultimately  re- 
cover less. 

COMPETENT.  Able,  fit,  qualified;  au- 
thorized or  capable  to  act  Abb.  L.  Diet; 
as  competent  court;  1  C.  P.  D.  17G;  compe- 
tent evidence;  Chapman  v.  McAdams,  1  Lea 
(Tenn.)  504;  competent  persons,  5  Ad.  &  El. 
75;  competent  cleric,  Porter  v.  Duglass,  27 
Miss.  393. 

COMPETENT  EVIDENCE.  That  evidence 
which  the  very  nature  of  the  thing  to  be 
proven  requires,  as  the  production  of  a  writ- 
ing where  its  contents  are  the  subject  of  in- 
quiry. Chapman  v.  McAdams,  1  Lea  (Tenn.) 
504;  1  Greenl.  Ev.  §  2.     See  Evidence. 

COMPETENT  WITNESS.  One  who  is  le- 
gally qualified  to  be  heard  to  testify  in  a 
cause.  In  many  states  a  will  must  be  attest- 
ed, for  the  purpose  of  passing  lands,  by  com- 
petent witnesses. 

COMPILATION.  A  literary  production 
composed  of  the  works  of  others  and  arrang- 
ed in  a  methodical  manner. 

A  compilation  requiring,  in  its  execution, 
taste,  learning,  discrimination,  and  intellec- 
tual labor,  is  an  object  of  copyright  {q.  v.); 
as,  for  example,  Bacon's  Abridgment  Cur- 
tis, Copyr.  186.  A  compilation  consists  of 
selected  extracts  from  different  authors;  an 
abridgment  is  a  condensation  of  the  views 
of  an  author;  Story  v.  llolcombe,  4  McLean 
314,  Fed.  Cas.  No.  13,497. 

COMPLAINANT.  One  who  makes  a  com- 
plaint. A  plaintiff  in  a  suit  in  chancery  is 
so  called. 

COMPLAINT.  In  Criminal  Law.  The  al- 
legation made  to  a  proper  officer  that  some 
person,  whether  known  or  unknown,  has 
been  guilty  of  a  designated  offence,  with  an 
offer  to  prove  the  fact,  and  a   request  that 


the  offender  may  be  punished.  It  is  a  tech- 
nical term,  descriptive  of  proceedings  before 
a  magistrate.  Com.  v.  Davis.  11  Pick. 
(Mass.)   436. 

To  have  a  legal  effect,  the  complaint  must 
be  supported  by  Buch  ev4dei  iws  that 

an  offence  has  been  committed  and 
it  certain  or  probable  that  it  was  committed 
by    the   person   named   or   described    in   the 
complaint. 

The    fact   that    a    complaint    is    drawn    in 
flagrant  disregard  of  tbe  rules  of  pleading  is 
not  sufficient  to  support  a  demurrer  ther 
if   the  allegations  le  of  a  con- 

struction that  will  support  tbe  action;  1'. 
Nat  Bank  v.  Bank.   18  X.  Y.  Supp.  758. 

In  Practice.  The  name  given  in  New  York 
and  other  states  to  the  statement  of  the 
plaintiff's  case  which  takes  tbe  place  of  the 
declaration  in  common-law  pleading. 

COMPOS  MENTIS.  See  Non  Compos 
Mentis. 

COMPOSITION.  An  agreement,  made  up- 
on a  sufficient  consideration,  between  a  debt- 
or and  creditor,  by  which  the  creditor  ac- 
cepts part  of  the  debt  due  to  him  in  satis- 
faction of  the  whole.  See  Compounding  a 
Felon  V. 

A  composition  deed  executed  by  a  debtor 
and  his  creditors  in  due  form,  ope 
settlement  of  the  original  claims  of  such 
creditors  and  supersedes  the  cause  of  action 
thereon,  the  rights  and  remedies  of  the  par- 
ties being  determined  thereafter  by  the  new 
agreement;  Brown  v.  Farnham,  4S  Minn.  :'.17, 
51  N.  W.  377.  An  oral  agreement  between 
several  creditors  and  their  debtor  to  com- 
pound and  discharge  their  claims  is  valid ; 
Halstead  v.  Ives.  73  Hun  5G,  25  X.  Y.  Supp, 
1058;  Chemical  Nat.  Bank  v.  Kohner,  85  X. 
Y.  1S9.  In  an  action  upon  a  composition 
agreement,  any  creditor  being  a  party  there- 
to may  bring  a  several  action  for  damages 
for  breach  thereof;  Brown  v.  Farnham,  55 
Minn.  27,  56  N.  W.  352. 

COMPOSITION  OF  MATTER.  A  mixture 
or  chemical  combination  of  materials.  The 
term  is  used  in  the  act  of  congress,  July  4. 
1836,  S  6,  in  describing  the  subjects  of  pat- 
ents. It  may  include  both  the  substance  and 
the  process,  when  the  compound  is  new. 

COMPOUND  INTEREST.  Interest  upon 
interest;  for  example,  when  a  sum  of  mon- 
ey due  for  interest  is  added  to  the  principal, 
and  then  bears  interest.  This  is  not  hi  gen- 
eral, allowed.     See  Ihtkb 

COMPOUNDER.  In  Louisiana.  He  who 
makes  a  composition. 

An  amicable  compounder  is  one  who  has 
undertaken  by  the  agreement  of  the  parties 
to  compound  or  settle  differences  between 
them.     La.  Code  of  Pract.  art.  444. 

COMPOUNDING  A  FELONY.  The  act  of 
a  party  immediately  aggrieved,  who  agrees 
with  a  thief  or  other  felon  that  he  will  not 


COMPOUNDING  A  FELONY 


574 


COMPOUNDING  A  FELONY 


prosecute  him,  on  condition  that  he  return 
to  him  the  goods  stolen,  or  who  takes  a  re- 
ward not  to  prosecute.  See  State  v.  Buck- 
master,  2  Harr.  (Del.)  .",32;  Both  well  v. 
Brown,  51  111.  234;  Chandler  v.  Johnson,  39 
Ga.  85 ;  Powell  v.  State,  51  Tex.  Cr.  R.  342, 
101  S.  W.  100G. 

This  is  an  offence  punishable  by  fine  and 
imprisonment,  and  at  common  law  rendered 
the  person  committing  it  an  accessory ; 
Hawk.  PI.  Cr.  125.  And  a  conviction  may  be 
had  though  the  person  guilty  of  the  original 
offence  has  not  been  tried ;  Watt  v.  State, 
97  Ala.  72,  11  South.  901 ;  or  if  no  offence  lia- 
ble to  a  penalty  has  been  committed  by  the 
person  from  whom  the  consideration  is  re- 
ceived; State  v.  Carver,  69  N.  H.  216,  39 
Atl.  973.  A  failure  to  prosecute  for  an  as- 
sault with  an  intent  to  kill  is  not  compound- 
ing a  felony;  Phillips  v.  Kelly,  29  Ala.  628. 
The  accepting  of  a  promissory  note  signed 
by  a  party  guilty  of  larceny,  as  a  considera- 
tion for  not  prosecuting,  is  sufficient  to  con- 
stitute the  offence;  Com.  v.  Pease,  16  Mass. 
91 ;  and  the  offence  is  committed  although 
the  consideration  is  for  another  than  the  one 
making  the  agreement;  State  v.  Ruthven,  58 
la.  121,  12  N.  W.  235.  The  mere  retaking 
by  the  owner  of  stolen  goods  is  no  offence, 
unless  the  offender  is  not  to  be  prosecuted ; 
Hale,  PI.  Cr.  546 ;  1  Chit.  Cr.  Law  4 ;  Clarke, 
Cr.  L.  329;  Bothwell  v.  Brown,  51  111.  234. 

In  an  indictment  for  compounding  a  felony, 
it  must  be  alleged  that  the  felony  was  com- 
mitted by  the  person  with  whom  the  corrupt 
agreement  is  made ;  State  v.  Hodge,  142  N. 
C.  665,  55  S.  E.  626,  7  L.  R.  A.  (N.  S.)  709, 
9  Ann.  Cas.  563.  The  agreement  not  to  pros- 
ecute being  the  gist  of  the  offense,  it  must 
be  clearly  charged ;  Williams  v.  State,  51 
Tex.  Cr.  1,  100  S.  W.  149.  An  information 
is  insufficient  if  it  fails  to  allege  that  the  de- 
fendant intended  to  hinder  the  course  of  jus- 
tice and  allow  the  felon  to  escape  unpunish- 
ed ;  State  v.  Wilson,  80  Vt.  249,  67  Atl.  533. 
See  note  20  L.  R.  A.  (N.  S.)  484. 

The  compounding  of  misdemeanors,  as  it 
is  also  a  perversion  or  defeating  of  public 
justice,  is  in  like  manner  an  indictable  of- 
fence at  common  law ;  Jones  v.  Rice,  18 
Pick.  (Mass.)  440,  29  Am.  Dec.  612;  Pearce 
v.  Wilson,  111  Pa.  14,  2  Atl.  99,  56  Am.  Rep. 
243;  McMahon  v.  Smith,  47  Conn.  221,  36 
Am.  Rep.  67.  But  the  law  will  permit  a 
compromise  of  any  offence,  though  made  the 
subject  of  a  criminal  prosecution,  for  which 
the  injured  party  might  recover  damages  in 
an  action. 

There  is  said  to  be  no  reported  case  in 
England  for  compounding  a  misdemeanor, 
but  that  in  grave  cases  (perjury  or  rioting) 
it  would  be  held  an  offence ;  such  agreements 
in  lesser  cases  are  often  sanctioned  by  courts. 
and  in  cases  when  the  injured  party  can 
both  sue  and  prosecute  (especially  for  an 
assault)  compromises  are  not  illegal  and 
will  be  enforced;  Odgers,  C.  L.  202,  citing  L. 


R.  10  Ch.  297.  But,  if  the  offence  is  of  a 
public  nature,  no  agreement  can  be  valid 
that  is  founded  on  the  consideration  of  sti- 
fling a  prosecution  for  it;  6  Q.  B.  308;  Fay 
v.  Oatley,  6  Wis.  42 ;  Buck  v.  Bank,  27  Mich. 
293,  15  Am.  Rep.  189 ;  Shaw  v.  Reed,  30  Me. 
105;  Jones  v.  Rice,  18  Pick.  (Mass.)  440,  29 
Am.  Dec.  612 ;  State  v.  Carver,  69  N.  H.  216, 
39  Atl.  973. 

Compounding  a  felony  is  an  indictable  of- 
fence. No  action  can  be  supported  on  any 
contract  of  which  such  offence  is  the  con- 
sideration in  whole  or  in  part;  Com.  v. 
Pease,  16  Mass.  91 ;  Mattacks  v.  Owen,  5  Vt. 
42;  Plumer  v.  Smith,  5  N.  H.  553,  22  Am. 
Dec.  478;  People  v.  Buckland,  13  Wend.  (N. 
Y.)  592;  Sneed  v.  Com.,  6  Dana  (Ky.)  338; 
Levy  v.  Ross,  T.  U.  P.  Charlt.  (Ga.)  292. 
A  receipt  in  full  of  all  demands  given  in 
consideration  of  stifling  a  criminal  prosecu- 
tion is  void;  Bailey  v.  Buck,  11  Vt.  252. 
A  contract  which  is  void  as  compounding  a 
felony  is  incapable  of  ratification ;  Stanard 
v.  Sampson,  23  Okl.  13,  99  Pac.  796 ;  the  law 
leaves  the  parties  where  it  finds  them ;  it  will 
neither  aid  in  enforcing  the  contract,  nor 
permit  a  recovery  of  the  consideration ; 
Town  of  Cottonwood  v.  Austin,  158  Ala.  117, 
48  South.  345;  Jourdan  v.  Burstow,  76  N. 
J.  Eq.  55,  74  Atl.  124,  139  Am.  St.  Rep.  741. 

Proceedings  on  a  judgment  by  confession 
will  be  enjoined  where  the  consideration  was 
stifling  a  prosecution  for  fopgery;  Given's 
Appeal,  121  Pa.  260,  15  Atl.  468,  6  Am.  St. 
Rep.  795.  An  injunction  will  be  granted 
against  action  on  a  note  given  in  considera- 
tion of  compounding  a  felony ;  Porter  v. 
Jones,  6  Coldw.  (Tenn.)  313;  13  Sim.  513; 
contra,  Adams  v.  Barrett,  5  Ga.  404;  Allison 
v.  Hess,  28  la.  388;  Williams  v.  Englebrecht, 
37  Ohio  St.  383 ;  Rock  v.  Mathews,  35  W.  Va. 
537,  14  S.  E.  137,  14  L.  R.  A.  508. 

C0MPRA  Y  VENTA  (Span.).  Buying 
and  selling.  The  laws  of  contracts  arising 
from  purchase  and  sale  are  given  very  fully 
in  Las  Partidas,  part  3,  tit.  xviii.  11.  56. 

COMPRINT.  The  surreptitious  printing 
of  the  copy  of  another  to  the  intent  to  make 
a  gain  thereby.  Strictly,  it  signifies  to  print 
together.  There  are  several  statutes  in  pre- 
vention of  this  act.     Jacob;  Cowell. 

COMPRIVIGNI  (Lat).  Step-brothers  or 
step-sisters.  Children  who  have  one  parent, 
and  only  one,  in  common.    Calvinus,  Lex. 

C0MPR0MIS  (French).  An  agreement  of 
arbitration.    2  Amer.  J.  of  Int.  L.  898. 

C0MPR0MISARIUS.      In    Civil    Law.     An 

arbitrator. 

COMPROMISE.  An  agreement  made  be- 
tween two  or  more  parties  as  a  settlement 
of  matters  in  dispute. 

Such  settlements  are  sustained  at  law; 
Poll.  Contr.  180;  Durham  v.  Wadlington,  2 
Strobh.  Eq.  (S.  C.)  258;  Van  Dyke  v.  Davis, 
2  Mich.  145 ;  and  are  highly  favored ;  Zane's 


COMPROMISE 


575 


COMPROMISE 


Devisees  v.  Zane,  6  Munf.  (Va.)  406;  Tay- 
lor v.  Patrick,  1  Bibb  (Ky.)  168;  Truett  v. 
Chaplin,  11  N.  C.  178;  Stoddard  v.  Mix,  14 
Conn.  12;  Barlow  v.  Ins.  Co.,  4  Mete.  (Mass.) 
270;  Hart  v.  Gould,  62  Mich.  262,  28  N.  W. 
831.  The  amount  in  question  must,  it  seems, 
be  uncertain;  2  B.  &  Ad.  889.  And  see  Muir- 
head  v.  Kirkpatrick,  21  Pa.  237;  Livingston 
v.  Dugan,  20  Mo.  102;  Wilbur  v.  Cm 
Pick.  (Mass.)  284;  3  M.  &  W.  648.  The 
compromise  of  a  doubtful  or  disputed  claim 
is  a  sufficient  consideration  to  uphold  an  as- 
sumpsit; Cox  v.  Stokes,  156  N.  Y.  491,  51  N. 
E.  S16.  See  Battle  v.  McArthur,  49  Fed.  715. 
The  compromise  of  a  doubtful  claim  made 
in  good  faith  is  a  good  consideration  for  a 
promise,  though  it  afterwards  appears  that 
the  claim  was  wholly  groundless;  L.  R.  5 
Q.  B.  449;  Union  Collection  Co.  v.  Buckman, 
150  Cal.  159,  SS  Pac.  708,  9  L.  R.  A.  (N.  S.) 
568,  119  Am.  St.  Rep.  164,  11  Ann.  Cas.  609. 
It  is  not  necessary  that  the  claim  settled 
should  be  one  that  could  be  successfully 
maintained;  Neibles  v.  Ry.  Co.,  37  Minn.  151, 
33  N.  W.  332.  Nor  is  necessary  that  there 
should  be  any  doubt  about  the  claim ;  it  is 
enough  if  the  parlies  consider  it  doubtful; 
City  Electric  Ry.  Co.  v.  Floyd  County,  115 
Ga.  655,  42  S.  E.  45;  Bement  v.  May,  135 
Ind.  664,  34  N.  E.  327,  35  N.  E.  387;  or  if 
the  parties  thought  at  the  time  that  there 
was  a  real  question  between  them ;  Alexan- 
der v.  Trust  Co.,  106  Md.  170,  66  Atl.  836. 
In  Pitkin  v.  Noyes,  48  N.  H.  294,  97  Am. 
Dec.  615,  2  Am.  Rep.  218,  it  was  held  that 
the  claim  must  be  one  which  was  understood 
by  both  parties  to  be  doubtful.  It  is  said 
that  the  question  is  as  to  the  belief,  in  good 
faith,  of  the  claimant  in  the  validity  of  his 
claim.  There  must  be  a  colorable  ground 
for  the  claim;  Smith  v.  Boruff,  75  Ind.  412; 
an  agreement  not  to  contest  a  will  is  not 
enough,  if  the  party  had  no  right  to  make 
a  contest;  Bement  v.  May,  135  Ind.  664,  34 
N.  E.  327,  35  N.  E.  387.  "A  claim  is  honest 
if  the  claimant  does  not  know  that  his  claim 
is  unsubstantial,  or  if  he  does  not  know  the 
facts  which  show  that  his  claim  is  a  bad 
one;"  L.  R.  32  Ch.  Div.  266;  Grandin  v. 
Grandin,  49  N.  J.  D.  514,  9  Atl.  756,  60  Am. 
Rep.  642.  But  it  has  been  held  that  one 
may  buy  his  peace  by  compromising  a  claim 
which  he  knows  is  without  right;  Dailey  v. 
King.  79  Mich.  568,  44  N.  W.  959.  But  the 
compromise  of  an  illegal  claim  will  not  sus- 
tain a  promise;  Read  v.  Hitchings,  71  Me. 
590;  so  of  a  note  given  for  a  gambling  debt; 
Tyson  v.  Woodruff,  108  Ga.  368,  33  S.  E.  981; 
and  a  note  given  for  liquor  sold  without  a 
license;  Melchoir  v.  McCafty,  31  Wis.  2.~>2, 
11  Am.  Rep.  605 ;  where,  however,  the  illegal 
contract  has  been  fully  performed,  a  compro- 
mise may  be  valid ;  Antoine  v.  Smith,  40  La. 
Ann.  r><>0,  4  South.  321 ;  and  where  the  par- 
ties have  disputed  claims  against  each  other 
and  agree  to  settle  them,  it  is  binding  al- 
though some  or  all  of  the  claims  were  ille- 


gal;  Wilder  v.  R.  Co.,  05  Vt.  43,  25  Atl. 
after  a  claim  is  in  suit,  it  is  said  to  make 
no  difference  whether  it  could  have  been 
maintained  or  not;  Clark  v.  Turnbull,  47  N. 
J.  L.  265,  54  Alii.  Eep.  157.  The 
fully  treated  in  Armijo  v.  Henry,  14  N.  M. 
181,  89  Pac.  305,  25  L.   R.  A.    (N. 

Where  a  debtor  tenders  part  of  a  di 
claim  to  the  creditor  in  full  satisfaction,  if 
the  latter  accepts  the  tender,  he  is  bound  by 
the  terms  thereof;    Deutmann  v.  Kilpatrick, 
46  Mo.  App.  624.     An  offer  of  at  by 

plaintiff,  but  not  accepted  by  defendant, 
not  bind  either  party;   Clark  v.  Pope,  "Jit  1'la. 
238,  10  South.  586.    As  to  a  compromise  of  a 
criminal  charge,  see  Compounding   a   Fel- 
ony. 

An  offer  to  pay  money  by  way  of  compro- 
mise is  not  evidence  of  debt,  since,  as  was 
said  by  Lord  Mansfield,  "it  must  be  permit- 
ted to  men  'to  buy  their  peace'  without  prej- 
udice to  them,  if  the  offer  did  not  succeed ; 
and  such  offers  are  made  to  stop  litigation 
without  regard  to  the  question  whether  any- 
thing, or  what,  is  dua" 

If  the  terms  "buy  their  peace"  are  attended  to, 
they  'will  resolve  all  doubts  on  this  head  of  evi- 
dence; Bull.  N.  P.  236;  and  the  author  adds  an 
example:  If  A  sue  B  for  one  hundred  pounds,  and 
B  offer  to  pay  him  twenty  pounds,  it  shall  not  be 
received  in  evidence,  for  this  neither  admits  nor 
ascertains  any  debt,  and  is  no  more  than  saying  he 
would  give  twenty  pounds  to  get  rid  of  the  action. 
But  if  an  account  consist  of  ten  articles,  and  B  ad- 
mits that  a  particular  one  la  due,  It  is  good  evidence 
for   so  much. 

In  one  of  the  oldest  cases  on  the  subject,  Lord 
Kenyon  declared  at  nisi  prius :  "Evidence  of  con- 
cessions made  for  the  purpose  of  settling  matters  la 
dispute  I  shall  never  admit;"  3  Esp.  113;  but  evi- 
dence was  admitted  that  after  the  action  was 
brought  the  defendant  called  upon  the  plaintiff 
and  said  he  was  sorry  that  the  thing  had  happened, 
and  offered  two  hundred  pounds  in  settlement, 
which  was  not  accepted;  3  Stark.  N.  P.  12S;  and  In 
other  cases  evidence  of  offers  of  compromise  made, 
but  not  expressed  to  be  without  prejudice,  were 
held  to  be  admissible;  1  M.  &  "W.  4-16;  apparently  In 
opposition  to  the  rule  laid  down  by  Lord  Mans- 
field and  Lord  Kenyon  above  referred  to. 

It  may,  however,  be  considered  settled 
that  letters  or  admissions  containing  the  ex- 
pression in  substance  that  they  are  to  be 
without  prejudice  will  not  be  admitted  in 
evidence;  4  C.  &  P.  402;  L.  R.  6  Ch.  827  .  3 
Sc.  N.  R.  741. 

In  the  last  ease  the  rule  Is  put  definitely  on  the 
ground  of  public  policy  by  Tindal,  C.  J.,  who  said: 
"It  Is  of  great  consequence  that  parties  should  be 
unfettered  by  correspondence  entered  into  upon 
the  express  understanding  that  it  is  to  be  without 
prejudice,"  and  he  also  declared  "that  where  used 
In  the  letter  containing  the  offer,  the  words  'with- 
out prejudice'  must  cover  the  whole  correspond- 
ence." And  this  rule  has  been  followed  and  it  was 
held  that  not  only  the  letter  bearing  the  words 
"without  prejudice,"  but  also  the  answer  thereto, 
which  was  not  so  guarded,  was  inadmissible  in  evi- 
dence ;  and  to  the  same  effect  Is  L.  R.  10  Ch.  264. 
It  is  the  recognized  rule  in  the  United  States  that 
admissions  made  in  treating  for  an  adjustment  can- 
not be  given  in  evidence;  Ferry  v.  Taylor,  S3  Mo. 
323;  Durgin  v.  Somers,  117  Mass.  65;  Molyneaux  r. 
Collier,  13  Ga.  406;  and  in  Canada;  3  Ont.  E 
id.  442.  In  Finn  v.  Tel.  Co.,  101  Me.  279,  64  Atl. 
490,  it  was  held  that  the  admissibility  of  such  evi- 


COMPROMISE 


57G 


COMPROMISE 


dence  depended  upon  the  Intention  of  the  party  seek- 
ing the  compromise.  If  he  intended  it  as  an  admis- 
sion of  liability,  it  was  admissible ;  if  he  only  in- 
tended it  as  a  compromise  settlement,   it  was  not. 

Verbal  offers  of  ■  compromise  of  a  claim 
made  by  a  defendant's  solicitor  are  also  pro- 
tected and  cannot  be  given  in  evidence 
against  bis  client ;  2  C.  &  K.  24 ;   6  C.  P.  437. 

An  account  rendered  by  the  defendant  to  the 
plaintiff,  showing  a  balance  in  the  plaintiff's  favor, 
accompanied  by  a  letter  proposing  an  arrangement 
and  stating  that  the  letter  and  account  were  without 
prejudice  was  held  to  be  inadmissible  as  evidence ; 
G  C.  P.  437.  The  principle  of  the  exclusion  of  such 
admissions,  whether  verbal  or  documentary,  there- 
fore, seems  to  rest  on  the  fact  that  there  is  some 
matter  in  controversy  or  some  claim  by  one  person 
against  the  other  for  the  settlement  or  adjustment 
of  which  the  communication  is  made,  and  that  in 
furtherance  of  the  maxim,  "Interest  respublicce  ut  sit 
finis  litium,"  it  is  for  the  public  good  that  communi- 
cations having  that  end  in  view  should  not  be  al- 
lowed to  prejudice  either  party  in  the  event  of  their 
proving  abortive.  It  is  not  necessary  that  such 
communications  should  be  expressly  guarded  if  they 
manifestly  appear  to  have  been  made  by  way  of 
compromise;  2  C.  &  K.  24  ;  such  admissions  or  ne- 
gotiations are  inadmissible  whether  made  "without 
prejudice"  or  not;  Reynolds  v.  Manning,  15  Md. 
510;  Frick  &  Co.  v.  Wilson,  36  S.  C.  65,  15  S.  B.  331  ; 
Emery  v.  Real  Estate  Exch.,  88  Ga.  321,  14  S.  B. 
556 ;  Smith  v.  Satterlee,  130  N.  Y.  677,  29  N.  E.  525  ; 
2  "Whart.  Ev.  §  1090;  but  see  Chaff e  v.  Mackenzie,  43 
La.  Ann.  1062,  10  South.  369;  Hood  v.  Tyner,  3  Ind. 
App.  51,  28  N.  E.  1033  ;  Thom  v.  Hess,  51  111.  App. 
274.  Where  a  letter  opening  negotiations  for  a  com- 
promise, but  not  stated  to  be  without  prejudice,  was 
followed  a  day  or  two  afterwards  by  another  guard- 
ing against  prejudice,  it  was  held  that  the  whole 
correspondence  was  thereby  protected;  26  W.  R. 
109,  and  Gurney,  B.,  refused  to  receive  In  evidence 
a  letter  written  "without  prejudice,"  even  in  favor 
of  the  party  who  had  written  it,  saying,  "If  you 
write  without  prejudice  so  as  not  to  bind  yourself, 
you  cannot  use  the  letter  against  the  other  party ;" 
8  C.  &  P.  388. 

And  evidence  of  plaintiff  tbat  offers  of 
compromise  were  made  by  bim  is  inadmis- 
sible; York  v.  Conde,  66  Hun  316,  20  N.  Y. 
Supp.  961.  And  negotiations  between  par- 
ties for  the  purpose  of  clearing  title  to  land 
and  compromising  differences  will  not  prej- 
udice the  rights  of  either  party;  Hand  v. 
Swann,  1  Tex.  Civ.  App.  241,  21  S.  W.  282. 

Correspondence  of  this  kind  is  not  only 
inadmissible  as  evidence  at  the  trial  of  the 
action,  but  it  has  also  been  held  to  be  priv- 
ileged from  production  for  the  purpose  of 
discovery ;   11  Beav.  Ill ;  15  id.  321,  388. 

Romilly,  M.  R.,  in  the  last  of  these  cases,  stated 
the  rule  very  much  in  the  same  way  as  did  Tindal, 
C.  J.,  supra;  he  said:  "Such  communications  made 
with  a  view  of  an  amicable  arrangement  ought  to 
be  held  very  sacred,  for  if  parties  were  to  be  after- 
wards prejudiced  by  their  efforts  to  compromise,  it 
would  be  impossible  to  attempt  an  amicable  ar- 
rangement of  differences." 

When  a  correspondence  for  a  settlement 
had  commenced  "without  prejudice"  but 
those  words  were  afterwards  dropped,  it 
was  immaterial;    6  Ont.  719. 

The  same  principle  is  applied  where  the 
cause  of  action  is  other  than  a  debt,  as  in  a 
bastardy  proceeding,  where  offers  of  com- 
promise were  held  not  admissible  against  the 
defendant  as  admissions  of  his  guilt;    Olson 


v.  Peterson,  33  Neb.  358,  50  N.  W.  155 ;  East 
Tennessee,  V.  &  G.  Ry.  Co.  v.  Davis,  91  Ala. 
615,  8  South.  349 ;  Carey  v.  Carey,  108  N.  C. 
267,  12  S.  E.  1038 ;  nor  does  the  payment  of 
a  certain  sum  on  a  claim  for  a  much  larger 
sum  constitute  a  recognition  of  a  legal  lia- 
bility to  make  further  payments  on  such 
claim ;  Camp  v.  U.  S.,  113  U.  S.  648,  5  Sup. 
Ct.  6S7,  28  L,.  Ed.  1081 ;  but  where  offers  of 
compromise  are  made  to  a  third  person,  who 
has  no  authority  to  settle  the  claim,  and 
there  is  no  intimation  that  they  were  made 
"without  prejudice"  or  in  confidence,  they 
are  admissible  in  evidence ;  Moore  v.  Mfg. 
Co.,  113  Mo.  98,  20  S.  W.  975 ;  a  statement 
made  by  one  of  several  defendants  to  his  co- 
defendants,  advocating  the  settlement  of 
plaintiff's  claims  is  not  within  the  rule  ex- 
cluding offers  made  for  the  purpose  of  com- 
promise, but  is  competent  as  an  admission  of 
liability;  Smith  v.  Whittier,  95  Cal.  279,  30 
Pac.  529 ;  and  evidence  of  the  admission  of 
an  independent  fact,  although  made  during  a 
negotiation  tending  towards  a  compromise,  is 
admissible;  Hess  v.  Van  Auken,  11  Misc. 
422,  32  N.  Y.  Supp.  126;  Durgin  v.  Somers, 
117  Mass.  55. 

In  a  prosecution  for  rape,  evidence  that 
defendant  had  offered  money  to  the  foster 
father  of  prosecutrix  to  stop  criminal  pro- 
ceedings was  incompetent,  Sanders  v.  State, 
148  Ala.  603,  41  South.  466. 

The  extent  of  the  protection  which  may  be  in- 
voked by  the  use  of  the  word  "without  prejudice" 
is  limited  to  the  purposes  contemplated  by  the  rule 
as  stated  and  will  not  be  extended  to  exclude  evi- 
dence of  communications,  which  from  their  charac- 
ter may  prejudice  the  person  to  whom  it  is  ad- 
dressed if  he  should  reject  the  offer;  62  L.  J.  Rep. 
Q.  B.  511;  nor  a  letter  which  is  intended  to  be  used 
by  the  party  writing  it ;  the  words  protect  both 
parties  from  its  use,  but  if  the  writer  declare  that 
he  will  use  it,  from  that  moment  it  loses  its  privi- 
leged character;  29  U.  C.  Q.  B.  136.  Such  communi- 
cations, when  the  negotiation  is  successful  and  a 
compromise  is  agreed  to,  are  admissible  both  for  the 
purpose  of  showing  the  terms  of  the  compromise  and 
enforcing  it ;  6  Ont.  719  ;  and  also  in  order  to  ac- 
count for  lapse  of  time;  15  Beav.  388;  L.  R.  23  Q. 
B.  Div.  38.  But  whether  verbal  or  written,  such 
communications  cannot  be  regarded  for  the  purpose 
of  determining  the  question  of  costs  ;  58  L.  J.  Rep. 
Q.  B.  501.  In  this  well  considered  case,  the  English 
court  of  appeal  established  the  rule  contrary  to 
what  had  been  in  some  previous  cases  thought  prop- 
er.   See  2  Dr.  &  Sm.  29;    1  Jur.  N.  S.  899. 

As  to  a  compromise  on  a  mistaken  inter- 
pretation of  a  will,  see  [1905]  1  Ch.  704. 

See  Accokd  and  Satisfaction. 

In  Civil  Law.  An  agreement  between  two 
or  more  persons,  who,  wishing  to  settle  their 
disputes,  refer  the  matter  in  controversy  to 
arbitrators,  who  are  so  called  because  those 
who  choose  them  give  them  full  powers  to  ar- 
bitrate and  decide  what  shall  appear  just 
and  reasonable,  to  put  an  end  to  the  differ- 
ences of  which  they  are  made  the  judges. 
1  Domat,  Lois,  Civ.  liv.  1,  t.  14. 

COMPTE  ARRETE  (Fr.).  An  account  stat- 
ed in  writing  and  acknowledged  to  be  cor- 
rect on  its  face  by  the  party  against  whom  It 


COMPTE  ARRETE 


577 


COMI'LKGATOR 


is  stated.     Chevalier  v.  Hyanis,  9  La.  Ann.  • 
485. 

COMPTROLLER.  An  officer  of  a  state,  or 
of  the  United  States,  who  has  certain  duties 
to  perform  in  the  regulation  and  manage- 
ment of  the  fiscal  matters  of  the  government 
under  which  he  holds  office. 

In  the  treasury  department  of  the  United  States 
there  is  an  oliicer  known  as  the  comptroller  of  the 
treasury.  R.  S.  §  268  et  seq.  He  Is  charged  with 
the  duty  of  r  .  upon  appeal  from  the 

settlements  made  by  the  auditors.  Upon  tha  request 
of  a  disbursing  officer,  or  the  head  of  a 
he  is  required  to  give  his  decision  upon  the  valid- 
ity of  a  payment  to  be  made ;  to  approve,  disap- 
prove, or  modify  all  decisions  made  by  the  auditors 
making  an  original  construction,  or  modifying  an 
existing  construction  of  statutes,  and  to  certify  his 
action  to  the  auditor.  The  forms  of  keeping  and 
rendering  all  public  accounts  (except  those  relating 
to  the  postal  service),  the  recovery  of  debts  certified 
by  the  auditors  to  be  due  to  the  United  States,  and 
the  preservation,  with  their  vouchers  and  certifi- 
cates, of  accounts  finally  adjusted,  are  under  his 
direction. 

COMPTROLLER  OF  THE  CURRENCY. 

An  officer  of  the  United  States  Treasury  De- 
partment. R.  S.  §  324  et  seq.  He  has  super- 
vision over  the  creation  of  national  banks 
and  their  operations,  with  a  visitatorial  pow- 
er ;  he  may  appoint  receivers  for  them  if  he 
deems  them  insolvent. 

COMPULSION.  Forcible  inducement  to 
the  commission  of  an  act. 

Acts  done  under  compulsion  are  not,  in 
general,  binding  upon  a  party  ;  but  when  a 
man  is  compelled  by  lawful  authority  to  do 
that  which  he  ought  to  do,  that  compulsion 
does  not  affect  the  validity  of  the  act ;  as, 
for  example,  when  a  court  of  competent  ju- 
risdiction compels  a  party  to  execute  a  deed, 
under  the  pain  of  attachment  for  contempt, 
the  grantor  cannot  object  to  it  on  the  ground 
of  compulsion.  But  if  the  court  compelled  a 
party  to  do  an  act  forbidden  by  law,  or  had 
not  jurisdiction  over  the  parties  or  the  sub- 
ject-matter, the  act  done  by  such  compulsion* 
would  be  void.    See  Coercion;  Duress. 


COMPULSORY      NON-SUIT. 

Suit. 


See   non- 


compulsory  pilotage.    See  rn.oT. 

COMPULSORY  SCHOOL  ATTENDANCE 
ACTS.  Such  acts  are  not  unconstitutional  as 
an  invasion  of  the  natural  right  of  the  par- 
ents to  control  their  children;  State  v.  Bail- 
ey, 157  Ind.  324,  61  N.  E.  730,  59  L.  R.  A. 
•  435;  State  v.  Jackson,  71  N.  H.  552.  53  Atl. 
1021,  60  L.  R.  A.  739.  They  do  not  include 
occasions  of  temporary  absence;  State  v. 
Jackson,  71  N.  II.  552,  53  Atl.  1021,  60  L.  R. 
A.  739. 

In  Washington  the  act  provides  that  any 
parent  may  be  summoned  before  a  superior 
judge  to  show  cause  why  his  child  should 
not  be  kept  in  school,  and  for  want  of  cause 
may  be  found  guilty  of  a  misdemeanor  and 
fined.  See  State  v.  Macdonald,  25  Wash. 
122,  64  Pac.  912. 

Bo  u  v. —37 


COMPURGATOR.  One  of  several  neigh- 
bors of  a  person  accused  of  a  crime  or  charg- 
ed as  a  defendant  in  a  civil  action,  who  ap- 
peared and  swore  that  they  believed  him  on 
his  oath.     3  Bla.  Com.  341. 

Formerly,  when  a  person  was  accused  of  a  crime, 
or   sued   in   some   kinds   of   civil    actions,   he   might 
purge    himself    upon   oath    of    the    accusation 
against  him,  whenever  the  proof  was  not  the  most 
clear  and  positive;    and  if  upon  his  oath  he  di 
himself  innocent,  he  was  absolved. 

This  usage,  so  eminently  calculated  to  encourage 
perjury  by  impunity,  was  soon  found  to  be  danger- 
ous to  the  public  safety.  To  remove  this  evil,  the 
laws  were  changed,  by  requiring  that  the  oath 
should  be  administered  with  the  i--.  mnity; 

but  the  form  was  soon  disregarded,  for 
came  easily  familiarized  to  those  ceremonies  which 
at  first  imposed  on  the  In 

cared    not    to    violate    the    truth    did    not    1. 
to    treat    the    form    with    contempt.      In    ord 
give   a   greater  weight  to  the  oath   of   the   ai 
the  law  was  again  altered  so  as  to  require  that  the 
accused  should  appear  before  the  judge  with 
tain  number  of  his  neighbors,  who  were  freeholders 
of  the  hundred,  who  should  swear  that  they  1 
the  accused  had  sworn  truly.     This  new  species  of 
witnesses  were  called  compurgators.     If  it  v 
his  first  offence  or  If  his  compurgators  did  not  agree 
to  make  the  oath,,  he  was  put  to  the  ordeal  (q.  v. J. 
The  origin  of  the  system  lies  back  in  the  hist 
the  Teuton   race.     It  is  said  still  to  survive  in  the 
practice  of  the  criminal  courts  by  which  an  accused 
person  is  allowed  to  call  witnesses  as  to  his  char- 
acter, as  a  defence,  while  the  prosecution  Is  not  al- 
lowed  to  traverse  their  testimony.     Inderwick,  The 
King's  Peace.     See  Wager  of  Law. 

The  number  of  compurgators  varied  according  to 
the  nature  of  the  charge  and  and  other  circum- 
stances, and  the  rank  of  the  party — formerly,  from 
two  to  five;  later  the  practice  was  twelve.  See  2 
Holdsw.  Hist.  E.  L.  See  Du  Cange,  Juramcnt um; 
Spelman,  (lloss.  Assarth ;  Tertnea  de  la  Ley;  3  Bla. 
Com.  341-31S.  The  last  reported  case  is  2  B.  &  C. 
53S;    see  2  Poll.  &  Maitl.  600. 

COMPUTUS  (Lat.  eomputare,  to  account). 
A  writ  to  compel  a  guardian,  bailiff,   r< 
er,  or  accountant,  to  yield  up  his  accounts. 
It  is  founded  on  the  stat.  Westm.  2,  cap.  12; 
Reg.  Orig.  135. 

CONCEAL.  To  withhold  or  keep  secret 
mental  facts  from  another's  knowledge,  as 
well  as  to  hide  or  secrete  physical  objects 
from  sight  or  observation.  Gerry  v.  Dun- 
ham, 57  Me.  339. 


CONCEALED     WEAPONS. 

ous  Weapons. 


See  Danqeb- 


CONCEALERS.  Such  as  find  out  a 
ed  lands:  that  is.  lands  privily  kept  from 
the  king  by  common  persons  having  nothing 
to  show  for  them.  They  are  tailed  "a  trou- 
blesome, disturhant  sort  of  nun;  turbulent 
persons.''     Co  well. 

CONCEALMENT.  The  Improper  suppres- 
sion of  any  fact  or  circumstance  by  one  of 
the  parties  to  a  contract  from  the  other, 
which  in  justice  ought  to  be  known. 

The  omission  by  an  applicant  for  insur- 
ance preliminarily  to  state  facts  known  to 
him,  or  which  he  is  bound  to  know,  material 
to  the  risk  proposed  to  be  insured  against, 
or  omission  to  state  truly  the  facts  expressly 
inquired  about  by  the  underwriters  to  whom 


CONCEALMENT 


578 


CONCESSI 


application  for  insurance  is  made,  whether 
the  same  are  or  are  not  material  to  the  risk. 

Concealment,  when  fraudulent,  avoids  a 
contract,  or  renders  the  party  using  it  liable 
for  the  damage  arising  in  consequence  there- 
of ;  Kidney  v.  Stoddard,  7  Mete.  (Mass.)  2.j2  ; 
Prentiss  v.  Russ,  16  Me.  30;  Jackson  v.  Wil- 
cox, 1  Scam.  (111.)  344;  3  B.  &  C.  G05 ;  Dan- 
iels v.  Ins.  Co.,  12  Cush.  (Mass.)  416,  59  Am. 
Dec.  192.  But  it  must  have  been  of  such 
facts  as  the  party  is  bound  to  communicate ; 
Webb,  Poll.  Torts  36S;  3  E.  L.  &  Eq.  17; 
Otis  v.  Raymond,  3  Conn.  413 ;  Van  Arsdale 
&  Co.  v.  Howard,  5  Ala.  596;  Kintzing  v. 
McElrath,  5  Pa.  467;  Stevens  v.  Fuller,  8  N. 
H.  463;  Hamrick  v.  Hogg,  12  N.  C.  351; 
Fleming  v.  Slocum,  IS  Johns.  (N.  Y.)  403,  9 
Am.  Dec.  224 ;  George  v.  Johnson,  6  Huinphr. 
(Tenn.)  36,  44  Am.  Dec.  2S8.  A  concealment 
of  extrinsic  facts  is  not,  in  general,  fraudu- 
lent, although  peculiarly  within  the  knowl- 
edge of  the  party  possessing  them ;  Laidlaw 
v.  Organ,  2  Wheat.  (U.  S.)  195,  4  L.  Ed.  214 ; 
Blydenburgh  v.  Welsh,  Baldw.  331,  Fed.  Cas. 
No.  1,583 ;  Bench  v.  Sheldon,  14  Barb.  (N.  Y.) 
72  ;  Burnett  v.  Stanton,  2  Ala.  181.  But  see 
Frazer  v.  Gervais,  Walk.  (Miss.)  72;  Baker  v. 
Seahorn,  1  Swan  (Tenn.)  54,  55  Am.  Dec.  724 ; 
Hough  v.  Evans,  4  McCord  (S.  C.)  169.  And 
the  rule  against  the  concealment  of  latent 
defects  is  stricter  in  the  case  of  personal 
than  of  real  property ;  Mason  v.  Crosby,  1 
Woodb.  &  M.  342,  Fed.  Cas.  No.  9,234;  3 
Campb.  508 ;  3  Term  759. 

A  failure  to  state  facts  known  to  an  in- 
surer or  his  agent,  or  which  he  ought  to 
know,  or  which  lessen  the  risk,  for  that  only 
is  material  which  tends  to  increase  the  risk, 
in  the  absence  of  express  stipulation,  and 
where  no  inquiry  is  made,  is  no  concealment ; 
May,  Ins.  §  207 ;  Lexington  Fire,  Life  &  Ma- 
rine Ins.  Co.  v.  Paver,  16  Ohio  334.   . 

Where  there  is  confidence  reposed,  conceal- 
ment becomes  more  fraudulent ;  9  B.  &  C. 
577. 

See,  generally,  2  Kent  482;  Deceit;  Mis- 
representation; Representation. 

CONCERT  OF  EUROPE.  The  union  be- 
tween the  chief  powers  of  Europe  for  pur- 
poses of  concerted  action  in  matters  affecting 
their  mutual  interests.  It  is  sometimes  call- 
ed the  Primacy  of  the  Great  Powers.  It  has 
existed  under  various  forms  from  the  time 
of  the  Congress  of  "Vienna,  in  1815.  The 
most  important  action  of  the  Concert  of 
Europe  within  recent  years  was  that  taken 
at  Berlin  in  1S78,  when  the  status  of  the 
European  provinces  of  Turkey  was  determin- 
ed, and  again  in  1SS5,  when  the  general  act 
of  the  Congo  Conference  laid  down  rules  de- 
termining the  status  of  the  newly  acquired 
colonies  in  Africa. 

CONCESSI  (Lat.  I  have  granted).  A  term 
formerly  used  in  deeds. 

It  is  a  word  of  general  extent,  and  is  said 
to  amount  to  a  grant,  feoffment,  lease,  re- 


lease, and  the  like;  2  Saund.  96;  Co.  Litt. 
301 ;  Dane,  Abr.  Index ;  Hemphill  v.  Eck- 
feldt,  5  Whart.  (Pa.)  278. 

It  has  been  held  in  a  feoffment  or  fine  to 
imply  no  warranty;  Co.  Litt.  384;  4  Co.  80; 
Vaughan's  Argument  in  Vaughan  126;  But- 
ler's note,  Co.  Litt  384.  But  see  1  Freem. 
339,  414. 

CONCESSIMUS  (Lat.  we  have  granted). 
A  term  used  in  conveyances.  It  created  a 
joint  covenant  on  the  part  of  the  grantors. 
5  Co.  16;   Bacon,  Abr.  Covenant. 

CONCESSION.  A  grant.  The  word  is 
frequently  used  in  this  sense  when  applied 
to  grants  made  by  the  French  and  Spanish 
governments  in  Louisiana. 

C0NCESS0R.     A  grantor. 

CONCILIUM.    A  council. 

In  Roman  Law.  A  meeting  of  a  section  of 
the  people  to  consider  and  decide  matters 
especially  affecting  itself.  Launspach,  State 
and  Family  in  Early  Rome  70. 

CONCILIUM  REGIS.  See  Curia  Regis; 
Privy  Council;  Commune  Concilium. 

CONCLUSION.    The  close;  the  end. 

In  Pleading.  In  Declarations.  That  part 
which  follows  the  statement  of  the  cause  of 
action.  In  personal  or  mixed  actions,  where 
the  object  is  to  recover  damages,  the  conclu- 
sion is,  properly,  to  the  damage  of  the  plain- 
tiff, etc.  Com.  Dig.  Pleader,  c.  84;  10  Co. 
1156.    A'nd  see  1  M.  &  S.  236;    Damages. 

The  form  was  anciently,  in  the  King's 
Bench,  "To  the  damage  of  the  said  A  B,  and 
thereupon  he  brings  suit ;"  in  the  Exchequer, 
"To  the  damage,"  etc.,  "whereby  he  is  the 
less  able  to  satisfy  our  said  lord  the  king 
the  debts  which  he  owes  his  said  majesty  at 
his  exchequer,  and  therefore  he  brings  his 
suit ;"  1  Chit.  PI.  356.  It  is  said  to  be  mere 
matter  of  form,  and  not  demurrable;  Pier- 
son  v.  Wallace,  7  Ark.  282. 

In  Pleas.  The  conclusion  is  either  to  the 
country — which  must  be  the  case  when  ah 
issue  is  tendered,  that  is,  whenever  the  plain- 
tiff's material  statements  are  contradicted — 
or  by  verification,  which  must  be  the  case 
when  new  matter  is  introduced.  See  Veri- 
fication. Every  plea  in  bar,  it  is  said,  must 
have  its  proper  conclusion.  All  the  formal 
parts  of  pleadings  have  been  much  modified 
by  statute  in  the  various  states  and  in  Eng- 
land. 

In  Practice.  Making  the  last  argument  or 
address  to  the  court  or  jury.  The  party  on 
whom  the  burden  of  proof  rests,  in  general, 
has  the  conclusion.  See  Opening  and  Clos- 
ing. 

In  Remedies.  An  estoppel;  a  bar;  the  act 
of  a  man  by  which  he  has  confessed  a  mat- 
ter or  thing  which  he  can  no  longer  deny. 

For  example,  the  sheriff  is  concluded  by  his  re- 
turn to  a  writ;  and,  therefore,  if  upon  a  capias 
he  return  cepi  corpus,  he  cannot  afterwards  show 
that  he  did   not  arrest  the  defendant,   but  Is   con- 


CONCLUSION 


579 


CONCUBINAGE 


eluded  by  his  return.    See  Plowd.  276  6;   8  Thomas, 
Co.   Litt.  600. 

CONCLUSION  TO  THE  COUNTRY.  In 
Pleading.  The  tender  of  an  issue  for  trial 
by  a  jury. 

When  an  issue  Is  tendered  by  the  defendant.  It 
is  as  follows:  "And  of  this  the  said  C  D  puts  him- 
self upon  the  country."  When  tendered  by  the 
plaintiff,  the  formula  is,  "And  this  the  said  A  B 
prays  may  be  inquired  of  by  the  country."  It  Is 
held,  however,  that  there  Is  no  material  difference 
between  these  two  modes  of  expression,  and  that  if 
the  one  be  substituted  for  the  other  the  mistake  Is 
unimportant ;    10  Mod.  166. 

When  there  is  an  affirmative  on  one  side 
and  a  negative  on  the  other,  or  vice  versa, 
the  conclusion  should  be  to  the  country;  2 
Saund.  189;  Gazley  v.  Price,  It!  Johns.  (N.  V.) 
267.  So  it  is  though  the  affirmative  and 
negative  be  not  in  express  words,  but  only 
tantamount  thereto;  Co.  Litt  126 o;  1  Saund. 
103 ;  1  Chit.  PI.  592 ;  Com.  Dig.  Pleader,  E, 
32. 

CONCLUSIVE  EVIDENCE.  That  which 
cannot  be  controlled  or  contradicted  by  any 
other  evidence. 

Evidence  which  of  itself,  whether  contra- 
dicted or  uncontradicted,  explained  or  unex- 
plained, is  sufficient  to  determine  the  matter 
at  issue.    6  Lond.  L.  Mag.  373. 

Evidence  upon  the  production  of  which  the 
judgment  is  hound  by  law  to  regard  some 
fact  as  proved,  and  to  exclude  evidence  to 
exclude  it.    Steph.  Dig.  Ev. 

CONCLUSIVE  PRESUMPTION.  A  rule  of 
law  determining  the  quantity  of  evidence 
requisite  for  the  support  of  a  particular  aver- 
ment which  is  not  permitted  to  be  overcome 
by  any  proof  that  the  fact  is  otherwise.  1 
Greenl.  Ev.  §  15.  Thus,  for  example,  the  pos- 
session of  land  under  claim  of  title  for  a  cer- 
tain period  of  time  raises  a  conclusive  pre- 
sumption of  a  grant.     See  Presumption. 

In  the  civil  law,  such  presumptions  are 
said  to  be  juris  ct  de  jure. 

CONCORD.  An  agreement  or  supposed 
agreement  between  the  parties  in  levying  a 
fine  of  lands  in  which  the  deforciant  (or  he 
who  keeps  the  other  out  of  possession)  ac- 
knowledges that  the  lands  in  question  are 
the  right  of  complainant;  and  from  the  ad- 
mission of  right  thus  made,  the  party  who 
levies  the  fine  is  called  the  cognizor,  and  the 
person  to  whom  it  is  levied,  the  cognizee.  2 
Bla.  Com.  350;  Cruise,  Dig.  tit  35,  c.  2,  § 
33;    Com.  Dig.  Fine  (E,  9). 

CONCORDAT.  A  convention ;  a  pact ;  an 
agreement.  The  term  is  generally  confined 
to  the  agreements  made  between  independent 
governments,  and  most  usually  applied  to 
those  between  the  pope  and  some  prince. 

In  French  Law.  A  composition.  The 
French  Concordat  was  repealed  in  1900. 

CONCUBEANT.  Lying  together.  Whar- 
ton. 


CONCUBINAGE.  A  species  of  marriage 
which  took  place  among  the  anclei 

The  act  or  practice  of  <  in  sexual 

commerce,  without  the  authority  of  law  or 
a  legal  marriage.  See  1  Brown,  Civ.  Law 
SO;  Merlin,  lU'p.;  Dig.  32.  49,  i :  7.  1.  1 ; 
Code,  5.  27.  12. 

"Concubinage  is  the  act  upon  the  part  of 
the  woman  of  cohabiting  with  a  man  without 
ceremonial  marriage,  or  consent  and  i 
good  at  common  law."  U.  S.  v.  Bitty,  155 
Fed.  938.  See  a  definition  in  Stale  v.  Bald- 
win, 214  Mo.  290,  113  S.  W.  1123. 

hiving  together  and  having  sexual  rela- 
tions as  husband  and  wife;  State  v.  Tucker. 
72  Kan,  481,  84  Pac.  126.  The  words  con- 
cubinage and  prostitution  have  no  Co  : 
law  meaning,  but  in  their  popular  sense 
all  cases  of  lewd  intercourse;  People  v.  Cum- 
mons,  50  Mich.  544,  23  N.  W.  215.  See  Ab- 
duction ;   Prostitution  ;   Procuration. 

CONCUBINATUS.  A  sort  of  unequal  mar 
riage  which  existed  under  Roman  law  be- 
tween a  man  of  superior  rank  and  a  woman 
of  inferior  rank.  It  did  not  raise  the  wife 
to  the  husband's  level:  the  children  were  not 
legitimate,  but  they  could  require  their  father 
to  support  them,  and,  in  Justinian's  time, 
had  a  qualified  right  of  intestate  succe 
to  him.  They  followed  their  mother's  con- 
dition and  could  inherit  from  her.  A  man 
could  not  have  more  than  one  concubine  at  a 
time.  It  was  abolished  by  the  Emperor  Leo 
the  Philosopher  in  A.  D.  887.  Bryce,  Studies 
in   Hist.,  etc.     See  Marriage. 

CONCUBINE.      A    woman    who    cohabits 

with  a  man  as  his  wife,  without  being  mar- 
ried. 

CONCUR.  In  Louisiana.  To  claim  a  part 
of  the  estate  of  an  insolvent  along  with  other 
claimants.  Thompson  v.  Chauveau,  6  Mart. 
N.  S.  (La.)  400;  as,  "the  wife  concurs  with 
her  husband's  creditors,  and  claims  a  privi- 
lege over  them." 

CONCURRENCE.  In  French  Law.  The 
equality  of  rights  or  privileges  which  several 
persons  have  over  the  same  thing;  as,  for 
example,  the  right  which  two  judgment-cred- 
itors, whose  judgments  were  rendered  at  the 
same  time,  have  to  be  paid  out  of  the  pro- 
ceeds of  real  estate  bound  by  them.  Diet,  de 
Jur. 

CONCURRENT.  Running  together;  hav- 
ing the  same  authority  ;  thus,  we  say,  a  con- 
current consideration  occurs  in  th  C 
mutual  promises;  such  and  such  courts  have 
concurrent  jurisdiction, — that  is,  each  has 
the  same  jurisdiction. 

Concurrent  irrits.  Duplicate  originals,  or 
several  writs  running  at  the  same  time  for 
the  same  purpose,  for  service  on  or  arrest  of 
a  person,  when  it  is  not  known  where  he  is 
to  be  found;  or  for  service  on  several  per- 
sons, as  when  there  are  several  defendants 
to  an  action.    Mozley  &  W.  Diet 


CONCURSUS 


5S0 


CONDEMNATION 


CONCURSUS.  A  proceeding  in  Louisiana 
similar  to  interpleader.  See  Louisiana  Mo- 
lass,  s  Co.  v.  Le  Sassier,  52  La.  Ann.  2070,  28 
South.  217. 

CONCUSSION.  In  Civil  Law.  The  unlaw- 
ful forcing  of  another  by  threats  of  violence 
to  give  something  of  value.  It  differs  from 
robbery  in  this,  that  in  robbery  the  thing  is 
taken  by  force,  while  in  concussion  it  is  ob- 
tained by  threatened  violence.  Heineccius, 
Lee.  EL  §  1071. 

CONDEMN.  To  sentence ;  to  adjudge.  3 
Bla.  Com.  291. 

To  declare  a  vessel  a  prize.  To  declare  a 
vessel  unfit  for  service.  1  Kent  102;  5  Esp. 
65. 

CONDEMNATION.  The  sentence  of  a 
competent  tribunal  which  declares  a  ship 
unfit  for  service.  This  sentence  may  be  re- 
examined and  litigated  by  the  parties  inter- 
ested* in  disputing  it ;  5  Esp.  65;  Abb.  Sh.  15 ; 
30  L  J.  Ad.  145. 

The  judgment,  sentence,  or  decree  by  which 
property  seized  and  subject  to  forfeiture  for 
an  infraction  of  revenue,  navigation,  or  other 
laws  is  condemned  or  forfeited  to  the  gov- 
ernment.   See  Captob. 

In  International  Law.  The  sentence  or 
judgment  of  a  court  of  competent  jurisdic- 
tion that  a  ship  or  vessel  taken  as  a  prize 
on  the  high  seas  was  liable  to  capture,  and 
was  properly  and  legally  captured  and  held 
as  prize. 

Some  of  the  grounds  of  capture  and  con- 
demnation are:  violation  of  neutrality  in 
time  of  war ;  The  Commercen,  2  Gall.  261, 
Fed.  Cas.  No.  3,055 ;  carrying  contraband 
goods;  The  Springbok,  5  Wall.  (U.  S.)  1,  18 
L.  Ed.  480;  The  Peterhoff,  5  Wall.  (U.  S.) 
28,  18  L.  Ed.  5G4;  The  Bermuda,  3  Wall.  (U. 
S.)  514,  18  L.  Ed.  200;  breach  of  blockade; 
The  Plymouth,  3  Wall.  (U.  S.)  28,  18  L.  Ed. 
125;  The  Louisiana,  3  Wall.  (U.  S.)  170,  18 
L.  Ed.  85;  The  Admiral,  3  WalL  (U.  S.)  603, 
18  L.  Ed.  58. 

By  the  general  practice  of  the  law  of 
nations,  a  sentence  of  condemnation  is  at 
present  generally  deemed  necessary  in  order 
to  divest  the  title  of  a  vessel  taken  as  a 
prize.  Until  this  has  been  done,  the  orig- 
inal owner  may  regain  his  property,  al- 
though the  ship  may  have  been  in  posses- 
sion of  the  enemy  twenty-four  hours,  or  car- 
ried infra  prwsidia;  Hall,  Int.  L. ;  The  Es- 
trella,  4  Wheat.  (U.  S.)  298,  4  L.  Ed.  574.  A 
sentence  of  condemnation  is  generally  bind- 
ing everywhere ;  Gelston  v.  Hoyt,  3  Wheat. 
(U.  S.)  240,  4  L.  Ed.  381;  Croudson  v.  Leon- 
ard, 4  Cra.  (U.  S.)  434,  2  L.  Ed.  670.  Title 
vests  completely  in  the  captors,  and  relates 
back  to  the  time  of  capture ;  2  Buss.  &  M. 
35  ;   15  Ves.  139. 

Confiscation  (q.  v.),  in  technical  if  not  in 
general  usage,  is  the  act  of  the  sovereign 
against  a  rebellious  subject;    condemnation 


as  prize  is  the  act  of  a  belligerent  against 
another  belligerent.  The  former  may  be 
effected  by  such  means  as  the  sovereign 
through  legal  channels  may  please  to  adopt; 
the  latter  can  be  made  only  in  accordance 
with  principles  recognized  in  the  common 
jurisprudence  of  the  world.  Both  are  in 
rem;  but  confiscation  recognizes  the  title  of 
the  original  owner,  while  in  prize  the  tenure 
of  the  property  is  qualified,  provisional  and 
destitute  of  absolute  ownership ;  Winchester 
v.  U.  S.,  14  Ct.  Cls.  14. 

The  condemnation  of  prize  property  while 
lying  in  a  neutral  port  or  the  port  of  an  ally 
is  valid ;  Jecker  v.  Montgomery,*  13  How.  (U. 
S.)  498,  14  L.  Ed.  240;   4  C.  Bob.  43. 

By  Art.  3  of  the  Convention  Relative  to  the 
Establishment  of  an  International  Prize 
Court  (q.  v.)  the  judgments  of  national  prize 
courts  condemning  neutral  ships  or  cargoes, 
or  enemy  cargoes  on  board  neutral  ships,  may 
be  reviewed  by  the  International  Prize  Court. 

The  word  is  in  general  use  in  connection 
with  the  taking  of  land  under  the  right  of 
eminent  domain,  q.  v.  The  condemnation 
of  lands  is  but  a  purchase  of  them  in  in- 
vitum,  and  the  title  acquired  is  but  a  quit 
claim ;  Lake  Merced  Water  Co.  v.  Cowles,  31 
Cal.  215. 

In  Civil  Law.  A  sentence  or  judgment 
which  condemns  some  one  to  do,  to  give, 
or  to  pay  something,  or  which  declares  that 
his  claim  or  pretensions  are  unfounded. 

The  word  Is  used  in  this  sense  by  common-law 
lawyers  also ;  though  it  is  more  usual  to  say  con- 
viction, both  in  civil  and  criminal  cases;  3  Bla. 
Com.  291.  It  is  a  maxim  that  no  man  ought  to  be 
condemned  unheard  and  without  the  opportunity  of 
being  heard. 

CONDICTIO  ( La t.  from  condicere). 

In  Civil  Law.    A  summons. 

A  personal  action.  An  action  arising  from 
an  obligation  to  do  or  give  some  certain,  pre- 
cise, and  defined  thing.    Inst.  3.  15.  pr. 

Condictio  is  a  general  name  given  to  personal 
actions,  or  actions  arising  from  obligations,  and  is 
distinguished  from  vindicatio  (real  action),  an  ac- 
tion to  regain  possession  of  a  thing  belonging  to  the 
actor,  and  from  actiones  mixta  (mixed  actions). 
Condictio  is  also  distinguished  from  an  action  ex 
stipulatu,  which  is  a  personal  action  which  lies 
where  the  thing  to  be  done  or  given  is  uncertain  in 
amount  or  identity.  See  Calvinus,  Lex.;  Halifax, 
Anal.   117. 

CONDICTIO  EX  LEGE.  An  action  aris- 
ing where  the  law  gave  a  remedy  but  provid- 
ed no  appropriate  form  of  action.  Calvinus, 
Lex. 

CONDICTIO  INDEBITATI.  An  action 
which  lies  to  recover  that  which  the  plain- 
tiff has  paid  to  the  defendant,  by  mistake, 
and  which  he  was  not  bound  to  pay,  either 
in  fact  or  in  law. 

This  action  does  not  lie  if  the  money  was  due  em 
cequitate,  or  by  a  natural  obligation,  or  if  he  who 
made  the  payment  knew  that  nothing  was  due;  foi 
qui  consulto  dat  quod  non  debetat  prcesumitur  do 
nare;  Bell,  Diet;  Calvinus,  Lex.;  1  Karnes,  Eq 
301. 


CONDICTIO  REI  FURTIVE 


581 


CONDITION 


CONDICTIO  REI  FURTIV/E.  An  action 
against  the  thief  or  his  heir  to  recover  the 
thins  stolen. 

CONDICTIO  SINE  CAUSA.  An  action  by 
which  anything  which  has  been  parted  with 
without  consideration  may  be  recovered,  it 
also  lay  in  case  of  failure  of  consideration, 
under  certain  circun  Calvinus,  Lex. 

CONDIDIT,  COMMON.  The  name  of  a 
plea  entered  by  a  party  to  a  libel  in  the  Ec- 
clesiastical Court.  The  administrators  "for- 
mally propounded  the  will,  in  a  plea  known 
as  common  condidit  from  its  merely  pleading 
the  deceased  to  have  made  the  will,  being  of 
sound  mind,  etc.,  in  set  form — in  common  use 
.  .  .  in  this  description  of  cases"  ;  3  Ad- 
dams  Keel.  7'.)  (2  EngL  Eccl.  Repts.,  Phila. 
Reprint  438)  ;  also  used  in  1  Curteis  Eccl. 
707  (6  EngL  Keel.  Rep.  431). 

CONDITION.     In  Civil  Law.    The  situation 
of  every  person  in  some  one  of  the  di 
orders  of  persons  which  compose  the  g< 
order   of   society   and   allot   to   each    person 
therein    a   distinct,   separate   rank.     Domat, 
torn.  ii.  1.  1,  tit.  9,  sec.  i.  art.  viii. 

A  paction  or  agreement  which  regulates 
that  which  the  contractors  have  a  mind 
should  be  done  if  a  case  which  they  foresee 
should  come  to  pass.  Domat,  torn.  i.  1.  1,  tit. 
1,  sec.  4. 

Casual  conditions  are  such  as  depend  upon 
accident,  and  are  in  no  wise  in  the  power 
of  the  person  in  whose  favor  the  obligation  is 
entered  into. 

Mixed  conditions  are  such  as  depend  upon 
the  joint  wills  of  the  person  in  whose  favor 
the  obligation  is  contracted  and  of  a  third 
person :  as  "If  you  marry  my  cousin,  I  will 
give,"  etc.     1'othier. 

Potestative  conditions  are  those  which  are 
in  the  power  of  the  person  in  whose  favor 
the  obligation  was  contracted :  as,  If  I  con- 
tract to  give  my  neighbor  a  sum  of  money 
in  case  he  cuts  down  a  tree. 

I'(  sohitory  conditions  are  those  which  are 
added  not  to  suspend  the  obligation  till  their 
accomplishment,  but  to  make  it  cease  when 
they  are  accomplished. 

Suspensive  obligations  are  those  which  sus- 
pend the  obligation  until  the  performance 
of  the  condition.  They  are  casual,  mixed, 
or  potestative. 

Domat  says  conditions  are  of  three  sorts. 
The  first  tend  to  accomplish  the  covenants 
to  which  (hoy  are  annexed.  The  second  dis- 
solve covenants.  The  third  neither  accom- 
plish nor  avoid,  but  create  some  change. 
When  a  condition  of  the  first  sort  comes  to 
pass,  the  covenant  is  thereby  made  effectual. 
In  case  of  conditions  of  the  second  sort,  all 
things  remain  in  the  condition  they  were  in 
by  the  covenant,  and  the  effect  of  the  condi- 
tion is  in  suspense  until  the  condition 
to  pass  and  the  covenant  is  void.  Domat,  lib. 
i.  tit.  1,  §  4,  art.  6.  See  Pothier,  ObL  pt  i. 
c.  2,  art.  1,  §  1;  pt.  iL  c.  3,  art.  2. 


In  Common  Law.  The  status  or  relative 
situation  of  a  person  in  the  state  arising 
from  the  regulations  of  society.  Thus,  a  per- 
son under  twenty-one  is  an  infant,  with  cer- 
tain privileges  and  disability 
son  is  bound  to  know  the  <  edition  of  the 
person  with  whom  he  deals. 

A  qualification,  restriction,  or  limitation 
modifying  or  destroying  the  original  act  with 
which  it  is  connected. 

A  clause  in  a  contract  or  agreement  which 
has   for   its   object   to   suspend,    rescind,   or 
modify  the  principal  obligation,  or,  in  a 
of  a  will,  to  suspend,  revoke,  or  modify  the 
devise  or  bequest. 

A  modus  or  quality  annexed  by  him  that 
hath  an  estate,  or  interest  or  right  to  the 
same,  whereby  an  estate,  etc.,  may  either  be 
defeated,  enlarged,  or  created  upon  an  un- 
certain event     Co.  Litt.  201  o. 

A  qualification  or  restriction  annexed  to 
a  conveyance  of  lands,  whereby  it  is  pro- 
vided that  in  case  a  particular  event  does 
or  does  not  happen,  or  in  case  the  grantor 
or  grantee  does  or  omits  to  do  a  particular 
act,  an  estate  shall  commence,  be  enlarged, 
or  be  defeated.  Creenl.  Cruise,  Dig.  tit.  xiii. 
c.  i.  §  1. 

A  future  uncertain  event  on  the  happen- 
ing or  the  non-happening  of  which  the  ac- 
complishment, modification,  or  rescission  of 
a  testamentary  disposition  is  made  to  de- 
pend. 

A  condition  annexed  to  a  bond  Is  usually  termed 
a  defeasance,  which  see.  A  condition  defeating  a 
conveyance  of  land  in  a  certain  event  is  generally  a 
mortgage.  See  Mortgage.  Conditions  ami* 
the  realty  are  to  be  distinguished  from  limitations; 
a  stranger  may  take  advantage  of  a  limitati 
only  the  grantor  or  his  heirs  of  a  condition  ; 
R.  Co.,  26  N.  J.  L.  1;  Vermont  v.  Society,  2  Paine 
545,  Fed.  Cas.  No.  16,920 ;  a  limitation  always  de- 
termines an  estate  without  entry  or  claim,  and  bo 
doth  not  a  condition;  Sheppard,  Touch^t.  121  ;  2 
Bla.  Com.  155;  4  Kent  112,  127  ;  Proprietors  of  the 
Church  in  Brattle  Square  v.  Grant,  3  Gray  (Mass.) 
112,  63  Am.  Dec.  725;  Van  Rensselaer  v.  Ball,  19 
N.  Y.  100;  from  conditional  limitations;  In  case  of 
a  condition,  the  entire  interest  in  the  estate  does 
not  pass  from  the  grantor,  but  a  possibility  of  re- 
verter remains  to  him  and  to  his  heirs  and  devisees; 
in  case  of  a  conditional  limitation,  the  possibility  of 
reverter  is  given  over  to  a  third  person  ;  Chal.  R. 
Proprietors  of  the  Church  in  Brattle  Square 
v.  Grant,  3  Gray  (Mass.)  142,  63  Am.  Dec.  725  ;  from 
.  a  conditon  operates  to  defeat  an  estate 
before  its  natural  termination,  a  remainder  takes 
effect  on  the  completion  of  a  preceding  estate;  Co. 
Litt.  Butler's  note  94;  from  covenants;  a  cove- 
nant may  b'.  paid  to  be  a  contract,  a  condiium, 
something  affixed  nomine  poena  for  the  non-fulfil- 
ment  of  a  contract ;  the  question  often  C. 
upon  the  apparent  intention  of  the  parties,  rather 
than  upon  fixed  rules  of  construction;  if  the  clause 
in  question  goes  to  the  whole  of  the  consideration, 
it  Is  rather  to  be  held  a  condition  ;  2  Parsons  Contr. 
31:  Piatt,  Cov.  71;  10  East  295;  see  Woodruff  v. 
Power  Co.,  10  N.  J.  Eq.  4S9 ;  McCullough  v.  Cox, 
6  Barb.  (N.  Y.)  386;  Houston  v.  Spruance,  4  Harr. 
117;  a  covenant  may  be  made  by  a  grantee, 
a  condition  by  the  grantor  only;  l  Co.  70;  from 
charges;  If  a  testator  create  a  charge  upon  the 
•  personally  in  respect  of  the  estate  devised, 
the  devisee  takes  the  estate  on  condition,  but  where 
a  devise  is  made  of  an  estate  and  also  a  bequest 
of  so  much   to   another  person,  payable  "thereout" 


CONDITION 


582 


CONDITION 


or  "therefrom"  or  "from  the  estate,"  it  is  rather 
to  be  held  a  charge ;  4  Kent  C04  ;  Potter  v.  Gardner, 
12  Wheat.  (U.  S.)  498,  6  L.  Ed.  706  ;  Taft  v.  Morse, 
4  Mete.  (Mass.)  523;  Harvey  v.  Olmsted,  1  N.  Y. 
483 ;  14  M.  &  W.  698.  Where  a  forfeiture  is  not 
distinctly  expressed  or  implied,  it  is  held  a  charge  ; 
Luckett  v.  White.  10  Gill  &  J.  (Md.)  4S0 ;  Pownal 
v.  Taylor,  10  Leigh  (Va.)  172,  34  Am.  Dec.  725.  See, 
also,  Wilson  v.  Wilson,  3S  Me.  1,  61  Am.  Dec.  227; 
1  Pow.  Dev.  664  ;    Charge  ;    Legacy. 

Affirmative  conditions  are  positive  condi- 
tions. 

Affirmative  conditions  implying  a  negative 
are  spoken  of  by  the  older  writers :  but  no 
such  class  is  now  recognized.  Shep.  Touchst. 
117. 

Collateral  conditions  are  those  which  re- 
quire the  doing  of  a  collateral  act.  Shep. 
Touchst.  117. 

Compulsory  conditions  are  such  as  express- 
ly require  a  thing  to  be  done. 

Consistent  conditions  are  those  which 
agree  with  the  other  parts  of  the  transaction. 

Copulative  conditions  are  those  which  are 
composed  of  distinct  parts  or  separate  con- 
ditions, all  of  which  must  be  performed. 
They  are  generally  conditions  precedent,  but 
may  be  subsequent.    Pow.  Dev.  c.  15. 

Covert  conditions  are  implied  conditions. 

Conditions  in  deed  are  express  conditions. 

Disjunctive  conditions  are  those  which  re- 
quire the  doing  of  one  of  several  things.  If 
a  condition  become  impossible  in  the  copula- 
tive, it  may  be  taken  in  the  disjunctive. 
Yiner,  Abr.    Condition  (S  b)    (Y  b  2). 

Express  conditions  are  those  which  are 
created  by  express  words.    Co.  Litt.  328. 

Implied  conditions  are  those  which  the  law 
supposes  the  parties  to  have  had  in  mind  at 
the  time  the  transaction  was  entered  into, 
though  no  condition  was  expressed.  Shep. 
Touchst.  117. 

Impossible  conditions  are  those  which  can- 
not be  performed  in  the  course  of  nature. 

Inherent  conditions  are  such  as  are  annex- 
ed to  the  rent  reserved  out  of  the  land 
whereof  the  estate  is  made.  Shep.  Touchst. 
118. 

Insensible  conditions  are  repugnant  con- 
ditions. 

Conditions  in  law  are  implied  conditions. 
The  term  is  also  used  by  the  old  writers 
without  careful  discrimination  to  denote  lim- 
itations, and  is  little  used  by  modern  writers. 
Littleton  §  380;   2  Bla.  Com.  155. 

Lawful  conditions  are  those  which  the  law 
allows  to  be  made. 

Positive  conditions  are  those  which  re- 
quire that  the  event  contemplated  should 
happen. 

Possible  conditions  are  those  which  may 
be  performed. 

Precedent  conditions  are  those  which  are 
to  be  performed  before  the  estate  or  the  ob- 
ligation commences,  or  the  bequest  takes  ef- 
fect. Powell,  Dev.  c.  15.  A  bond  to  convey 
land  on  the  payment  of  the  purchase-money 
furnishes  a  common  example  of  a  condition 
precedent.     Stone  v.  Ellis,  9  Cush.    (Mass.) 


95.  They  are  distinguished  from  conditions 
subsequent. 

Repugnant  conditions  are  those  which  are 
inconsistent  with,  and  contrary  to,  the  orig- 
inal act. 

Restrictive  conditions  are  such  as  contain 
a  restraint :  as,  that  a  lessee  shall  not  alien. 
Shep.  Touchst.  118. 

Single  conditions  are  those  which  require 
the  doing  of  a  single  thing  only. 

Subsequent  conditions  are  those  whose  ef- 
fect is  not  produced  until  after  the  vesting 
of  the  estate  or  bequest  or  the  commence- 
ment of  the  obligation. 

A  mortgage  with  a  condition  defeating  the  con- 
veyance in  a  certain  event  is  a. common  example  of 
a  condition  subsequent.  AH  conditions  must  be 
either  precedent  or  subsequent.  The  character  of 
a  condition  in  this  respect  does  not  depend  upon 
the  precise  form  of  words  used  ;  Creswell's  Lessee 
v.  Lawson,  7  Gill  &  J.  (Md.)  227,  240  ;  Vanhorne's 
Lessee  v.  Dorrance,  2  Dall.  (Pa.)  317,  Fed.  Cas.  No. 
16,857,  1  L.  Ed.  391;  In  re  New  York  Cent.  R.  Co., 
20  Barb.  (N.  Y.)  425 ;  Brockenbrough  v.  Ward's 
Adm'r,  4  Rand.  (Va.)  352;  Sprigg's  Heirs  v.  Albin's 
Heirs,  6  J.  J.  Marsh.  (Ky.)  161;  Barry  v.  Alsbury, 
Litt.  Sel.  Cas.  (Ky.)  151;  Shinn  v.  Roberts,  20  N. 
J.  L.  435,  43  Am.  Dec.  636  ;  Yeatman  v.  Broadwell, 
1  La.  Ann.  424  ;  Rogan  v.  Walker,  1  Wis.  527  ;  nor 
upon  the   position  of  the  words   in   the   instrument; 

1  Term  645;  Cas.  temp.  Talb.  166;  the  question  is 
whether  the  conditional  event  is  to  happen  before 
or  after  the  principal;  Brockenbrough  v.  Ward's 
Adm'r,  4  Rand.  (Va.)  352.  The  word  "if"  implies  a 
condition  precedent,  however,  unless  controlled  by 
other  words;    Crabb,  R.  P.   §  2152. 

Unlawful  conditions  are  those  which  are 
forbidden  by  law. 

They  are  those  which  first,  require  the  perform- 
ance of  some  act  which  is  forbidden  by  law,  or 
which  is  malum  in  se  ;  or,  second,  require  the  omis- 
sion of  some  act  commanded  by  law ;  or,  third, 
those  which  encourage  such  acts  or  omissions.  1  P. 
Wms.  189. 

Void  conditions  are  those  which  are  of  no 
validity  or  effect. 

Creation  of.  Conditipns  must  be  made 
at  the  same  time  as  the  original  conveyance 
or  contract,  but  may  be  by  a  separate  instru- 
ment, which  is  then  considered  as  constitut- 
ing one  transaction  with  the  original ;  Ham- 
ilton v.  Elliott,  5  S.  &'  R.  (Pa.)  375;  Cooper 
v.  Whitney,  3  Hill  (N.  Y.)  95;  Brown  v. 
Dean,  3  Wend.  (N.  Y.)  208;  Perkins'  Lessee 
v.  Dibble,  10  Ohio  433,  36  Am.  Dec.  97;  Bas- 
sett  v.  Bassett,  10  N.  H.  64;  Blaney  v.  Bearce, 

2  Greenl.  (Me.)  132;  Watkins  v.  Gregory,  6 
Blackf.  (Ind.)  113.  Conditions  are  some- 
times annexed  to  and  depending  upon  es- 
tates, and  sometimes  annexed  to  and  depend- 
ing upon  recognizances,  statutes,  obligations, 
and  other  things,  and  are  also  sometimes 
contained  in  acts  of  parliament  and  records ; 
Shep.  Touchst.  117. 

Unlawful  conditions  are  void.  Conditions 
in  restraint  of  marriage  generally  are  held 
void ;  Poll.  Contr.  334 ;  Williams  v.  Cowden, 
13  Mo.  211,  53  Am.  Dec.  143;  see  Com.  v. 
Stauffer,  10  Pa.  350,  51  Am.  Dec.  489;  Den- 
field,  Petitioner,  156  Mass.  265,  30  N.  E. 
1018;  Knight  v.  Mahoney,  152  Mass.  523,  25 
N.  E.  971,  9  L  E.  A.  573;    Mann  v.  Jackson, 


CONDITION 


583 


CONDITION 


84  Me.  400,  24  Atl.  SSC,  1G  L.  R.  A.  707,  30 
Am.  St.  Rep.  358;  otherwise  of  conditions 
restraining  from  marriage  to  a  particular 
person,  or  restraining  a  widow  from  a  second 
marriage;  10  E.  L.  &  Eq.  139;  2  Sim.  255; 
Fahs  v.  Fans,  6  Watts  (Fa.)  213.  A  condi- 
tion in  general  restraint  of  alienation  is 
void;  Schermerhorn  v.  Negus,  1  Den.  (N. 
Y.)  449;  G  East  IT:'.;  Potter  v.  Couch,  141 
U.  S.  296,  11  Sup.  Cr.  1005,  35  L.  Ed.  721; 
and  see  Blackstone  Bank  v.  Davis,  23  Pick. 
(Mass.)  42,  32  Am.  Dec.  241 ;  but  a  condition 
restraining  alienation  for  a  limited  time  may 
be  good;  Co.  Litt.  L'2:;.  An  unreasonable  con- 
dition is  also  void;  In  re  Vandevort,  62  Hun 
G12,  17  N.  Y.  Supp.  316;  as  is  a  condition 
repugnant  to  the  grant;  Hardy  v.  Galloway, 
111  N.  C.  519,  15  S.  E.  890,  32  Am.  St.  Rep. 
828. 

Where  land  is  devised,  there  need  be  no 
limitation  over  to  make  the  condition  good; 
1  Mod.  300;  1  Atk.  361.  See  Tilley  v.  King, 
109  N.  C.  4G1,  13  S.  E.  936;  but  where  the 
subject  of  the  gift  is  personalty  without  a 
limitation  over,  the  condition,  if  subsequent, 
is  held  to  be  in  terrorem  merely,  and  void ; 
1  Jarm.  Wills  SS7;  Mcllvaine  v.  Gethen,  3 
Whart.  (Pa.)  575.  See  In  re  Vandevort,  G2 
Hun  612,  17  N.  Y.  Supp.  316.  But  if  there  be 
a  limitation  over,  a  non-compliance  with  the 
condition  divests  the  bequest ;  1  Eq.  Cas. 
Abr.  112.  A  limitation  over  must  be  to  per- 
sons who  could  not  take  advantage  of  a 
breach;  Jackson  v.  Topping,  1  Wend.  (N. 
Y.)  3S8,  19  Am.  Dec.  515;  Wheeler  v.  Walk- 
er, 2  Conn.  196,  7  Am.  Dec.  2G4.  A  gift  of 
personalty  may  not  be  on  condition  subse- 
quent at  common  law,  except  as  here  stated  ; 
1  Rolle,  Abr.  412.  See  Halbert  v.  Halbert,  21 
Mo.  277. 

Any  words  suitable  to  indicate  the  inten- 
tion of  the  parties  may  be  used  in  the  crea- 
tion of  a  condition ;  "On  condition"  is  a 
common  form  of  commencement. 

Formerly,  much  importance  was  attached  to  the 
use  of  particular  and  formal  words  in  the  creation 
of  a  condition.  Three  phrases  are  given  by  the  old 
writers  by  the  use  of  which  a  condition  was  created 
without  words  giving  a  right  of  re-entry.  These 
were  Sub  conditione  (On  condition),  Proviso,  ita 
quod  (Provided  always),  Ita  quod  (So  that).  Little- 
ton 331;    Shep.  Touchst.  125. 

Amongst  the  words  used  to  create  a  condition 
where  a  clause  of  re-entry  was  added  were,  Qiiod 
si  continaat  (If  It  shall  happen),  Pro  (For),  Si  (If), 
Causa  (On  account  of) ;  sometimes,  and  in  case  of 
the  king's  grants,  but  not  of  any  other  person,  ad 
faciendum  or  faciendo,  ea  intentions,  o<l  * 
or  ad  propositum.  For  avoiding  a  lease  for 
such  precise  words  of  condition  are  not  required; 
Co.  Litt.  204  b.  In  a  gift,  it  la  said,  may  be  present 
a  modus,  a  condition  and  a  consideration:  the  words 
of  creation  are  ut  for  the  modus,  si  for  the  condi- 
tion, and  quid  for  the  consideration. 

Technical  words  in  a  will  will  not  create 
a  condition  where  it  is  unreasonable  to  sup- 
pose that  the  testator  intended  to  create  a 
technical  condition ;  Emery  v.  Judge  of  Pro- 
bate, 7  N.  II.  1-12.  The  words  of  condition 
need  be  in  no  particular  place  in  the  instru- 
ment;  1  Term  G45;   6  id.  GG8. 


Construction  of.     Conditions  which   go  to 
defeat  an  estate  or  destroy  an  act  are  strict- 
ly construed;    while  those  which  go  to 
an  estate  are  liberally  coi  Crabb,  K. 

P.  §  2130;    .Mayor  etc.,  of  Stuy- 

vesant,  17  N.  Y.  34;  Inhabitants  of  Hadley 
v.  Mfg.  Co.,  4  Gray  (Mass.)  L40  I  ipin  v. 
School  District,  35  X.  H.  445;  Wilson  v.  Gait, 
18  111.  431;  Perkins  v.  Fourniquet,  15  How. 
(U.  S.)  323,  14  L.  Ed.  435.  The  conditl 
an  obligation  is  said  to  be  the  la: 
the  obligee,  and  for  that  reason  to  be  con- 
strued liberally  in  favor  of  the  obligor;  Co. 
Litt.  42  a,  183  a;  Shep.  Touchst  375;  Dy. 
14  b,  17  a;  Jackson  v.  Brownell,  1  Johns 
V.)  267,  3  Am.  Dec.  32G.  Iiut  wherever  an 
obligation  is  imposed  by  a  condition,  the 
construction  is  to  be  favorable  to  the  obli- 
gee; Catlin  v.  Fire  Ins.  Co.,  1  Sumn.  44o, 
Fed.  Cas.  No.  2,522.  Conditions  subsequent 
are  not  favored  in  law  but  are  always  strict- 
ly construed  because  they  tend  to  d 
estates;  Peden  v.  R.  Co.,  73  la.  328,  35  N. 
W.  424,  5  Am.  St.  Rep.  G80;  and  where  it  is 
doubtful  whether  a  clause  in  a  deed  be  a 
covenant  or  a  condition,  the  courts  will  in- 
cline against  the  latter  construction;  Wood- 
ruff v.  Woodruff,  44  N.  J.  Eq.  349,  16  Atl.  4, 

1  L.  R.  A.  380. 

Performance  should  be  complete  and  ef- 
fectual ;  1  Rolle,  Abr.  -12.".  An  inconsider- 
able casual  failure  to  perform  is  not  non- 
performance; Mayor,  etc.,  of  New  York  v. 
Stuyvesant's  Heirs,  17  X.  Y.  34.  Any  one 
who  has  an  interest  in  the  estate  may  per- 
form the  condition;  but  a  stranger  gets  no 
benefit  from  performing  it;  Frederick  v. 
Gray,  10  S.  &  R.  (Pa.)  1S6.  Conditions 
precedent,  if  annexed  to  land,  are  to  be 
strictly  performed,  even  when  affecting  mar- 
riage. Conditions  precedent  can  generally  be 
exactly  performed;  and,  at  any  rate,  equity 
will  not  generally  interfere  to  avoid  the  con- 
sequences of  non-performance;   3  Yes.  Ch.  S9  ; 

2  Brown,  Ch.  431.  But  in  cases  of  condi- 
tions subsequent,  equity  will  interfere  where 
there  was  even  a  partial  performance,  or 
where  there  is  only  a  delay  of  performance; 
Crabb,  R,  P.  §  2160;  Leach  v.  Leach.  4  Ind. 
G28,  58  Am.  Dec.  G42  ;  Luques  v.  Thompson. 
26  Me.  525.  This  is  the  ground  of  equitable 
jurisdiction  over  mortgages. 

Generally,  where  there  is  a  gift  over  in 
case  of  non-performance,  the  parties  will 
be  held  more  strictly  to  a  performance  than 
where  the  estate  or  gift  is  to  revert  to  the 
grantor  or  his  heirs. 

Where  conditions  are  liberally  construed, 
a  strict  performance  is  also  required;  and 
it  may  be  said,  in  the  same  way.  that  a 
non-exact  performance  is  allowed  where 
there  is  a  strict  construction  of  the  condi- 
tion. 

Generally,  where  no  time  of  performance 
is  limited,  be  who  has  the  benefit  of  the 
contract  may  perform  the  condition  when 
he    pleases,    at    any    time    during    his    life; 


CONDITION 


584 


CONDITION 


Plowd.  16;  Co.  Litt  208  ft;  and  need  not  do 
't  when  requested;  Co.  Litt.  209  a.  A  condi- 
tion precedent  mast  be  performed  within  a 
reasonable  time,  when  no  time  is  fixed  for 
the  performance  thereof;  Soderberg  v. 
Crockett,  17  Nev.  409,  30  Pac.  S2G.  But  if  a 
prompt  performance  be  necessary  to  carry 
out  the  will  of  a  testator,  the  beneficiary 
shall  not  have  a  lifetime  in  which  to  perform 
the  condition;  Hamilton  v.  Elliott,  5  S.  &  R. 
(Pa.)  384.  In  this  case,  no  previous  demand 
is  necessary ;  Hamilton  v.  Elliott,  5  S.  &  R. 
(Pa.)  3S5 ;  nor  is  it  when  the  continuance 
of  an  estate  depends  upon  an  act  to  be  done 
at  a  fixed  time;  Royal  v.  Aultman  &  Taylor 
Co.,  116  Ind.  424,  19  N.  E.  202,  2  L.  R,  A. 
526.  But  even  then  a  reasonable  time  is  al- 
lowed;   1  Rolle,  Abr.  449. 

If  the  place  be  agreed  upon,  neither  party 
alone  can  change  it,  but  either  may  with 
consent  of  the  other ;  1  Rolle  444;  Peck's 
Adm'r  v.  Hubbard,  11  Vt.  612;  3  Leon.  260. 
See  Contract  ;   Pebfoeman ce. 

Non-performance  of  a  condition  which  was 
possible  at  the  time  of  its  making,  but  which 
has  since  become  impossible,  is  excused  if 
the  impossibility  is  caused  by  act  of  God ; 
Poll.  Contr.  387;  Merrill  v.  Emery,  10  Pick. 
(Mass.)  507;  or  by  act  of  law,  if  it  was  law- 
ful at  its  creation ;  Taylor  v.  Taiutor,  16 
Wall.  (U.  S.)  366,  21  L.  Ed.  287;  Kelly  v. 
Henderson,  1  Pa.  495 ;  or  by  the  act  of  the 
party ;  as,  when  the  one  imposing  the  obliga- 
tion accepts  another  thing  in  satisfaction  or 
renders  the  performance  impossible  by  his 
own  default;  Bradstreet  v.  Clark,  21  Pick. 
(Mass.)  3S9;  Vermont  v.  Society,  1  Paine 
652,  Fed.  Cas.  No.  16,919;  U.  S.  v.  De  la 
Maza  Arredondo,  6  Pet.  691,  8  L.  Ed.  547; 
Frets  y.  Frets,  1  Cow.  (N.  Y.)  339.  If  per- 
formance of  one  part  becomes  impossible  by 
act  of  God,  the  whole  will,  in  general,  be 
excused;  1  B.  &  P.  242 ;  Cro.  Eliz.  280;  5 
Co.  21;   1  Ld.  Raym.  279. 

The  effect  of  conditions  may  be  to  suspend 
the  obligation ;  as,  if  I  bind  myself  to  con- 
vey an  estate  to  you  on  condition  that  you 
first  pay  one  thousand  dollars,  in  which  case 
no  obligation  exists  until  the  condition  is 
performed :  or  may  be  to  rescind  the  obliga- 
tion; as,  if  you  agree  to  buy  my  house  on 
condition  that  it  is  standing  unimpaired  on 
the  tenth  of  May,  or  I  convey  to  you  my 
farm  on  condition  that  the  conveyance  shall 
be  void  if  I  pay  you  one  thousand  dollars, 
in  such  cases  the  obligation  is  rescinded  by 
the  non-performance  of  the  condition:  or  it 
may  modify  the  previous  obligation;  as  if  I 
bind  myself  to  convey  my  farm  to  you  on 
the  payment  of  four  thousand  dollars  if  you 
pay  in  bank  stock,  or  of  five  thousand  if  you 
pay  in  money  :  or,  in  case  of  gift  or  bequest, 
may  qualify  the  gift  or  bequest  as  to  amount 
or  persons. 

The  effect  of  a  condition  precedent  is, 
when  performed,  to  vest  an  estate,  give  rise 
to  an  obligation,  or  enlarge  an  estate  already 


vested;  Ludlow  v.  R.  Co.,  12  Barb.  (N.  Y.) 
440.  Unless  a  condition  precedent  be  per- 
formed, no  estate  will  vest;  and  this  even 
where  the  performance  is  prevented  by  the 
act  of  God  or  of  the  law ;  Co.  Litt.  42 ;  2  Bla. 
Com.  157;  4  Kent  125;  Mizell  v.  Burnett, 
49  N.  C.  249,  69  Am.  Dec.  744;  Tilley  v. 
King,  109  N.  C.  461,  13  S.  E.  936.  Not  so  if 
prevented  by  the  party  imposing  it;  Jones 
v.  Walker,  13  B.  Monr.  (Ky.)  163,  56  Am. 
Dec.  557. 

If  a  condition  subsequent  was  void  at  its 
creation,  or  becomes  impossible,  unlawful,  or 
in  any  way  void,  the  estate  or  obligation  re- 
mains intact  and  absolute ;  2  Bla.  Com.  157 ; 
Taylor  v.  Sutton,  15  Ga.  103,  60  Am.  Dec. 
682.  Where  the  condition  upon  which  an  es- 
tate is  to  be  divested  and  go  to  a  third  party 
is  founded  on  a  contingency  that  can  never 
happen,  the  grantee  will  take  a  fee  simple; 
Munroe  v.  Hall,  97  N.  C.  206,  1   S.   E.  631. 

In  case  of  a  condition  broken,  if  the  gran- 
tor is  In  possession,  the  estate  revests  at 
once ;  Lincoln  &  Kennebeck  Bank  v.  Drum- 
mond,  5  Mass.  321 ;  Hamilton  v.  Elliott,  5 
S.  &  R.  (Pa.)  375;  Andrews  v.  Senter,  32 
Me.  394;  Thrall  v.  Spear,  63  Vt  266,  22  Atl. 
414;  Higbee  v.  Rodeman,  129  Ind.  244,  28 
N.  E.  442 ;  Alford  v.  Alford,  1  Tex.  Civ.  App. 
245,  21  S.  W.  283.  But  see  Willard  v.  Henry, 
2  N.  H.  120.  But  if  the  grantor  is  out  of 
possession,  he  must  enter ;  Cross  v.  Carson,  8 
Blackf.  (Ind.)  138,  44  Am.  Dec.  742;  Phelps 
v.  Chesson,  34  N.  C.  194 ;  Bowen  v.  Bowen, 
18  Conn.  535 ;  Sperry  v.  Sperry,  8  N.  H.  477 ; 
Inhabitants  of  Bangor  v.  Warren,  34  Me. 
324,  56  Am.  Dec.  657;  8  Exeh.  67;  and  is 
then  in,  as  of  his  previous  estate;  Co.  Litt 
Butler's  note,  94.  Only  the  grantor,  his 
heirs  or  devisees,  can  take  advantage  of  the 
failure  to  perform  a  condition  subsequent, 
contained  in  a  deed;  Boone  v.  Clark,  129 
111.  466,  21  N.  E.  850,  5  L.  R.  A.  276;  Skip- 
with  v.  Martin,  50  Ark.  141,  6  S.  W.  514. 

It  is  usually  said  in  the  older  books  that 
a  condition  is  not  assignable,  and  that  no 
one  but  the  grantor  and  his  heirs  can  take 
advantage  of  a  breach :  Gilbert,  Teh.  26. 
Statutory  have  equal  rights  in  this  respect 
with  common-law  heirs;  Bowen  v4  Bowen, 
18  Conn.  535 ;  Marwick  v.  Andrews,  25  Me. 
525 ;  and  in  some  of  the  states  the  common- 
law  rule  has  been  broken  in  upon,  and  the 
devisee  may  enter ;  McKissick  v.  Pickle,  16 
Pa.  150;  Hayden  v.  Stoughton,  5  Pick. 
(Mass.)  528;  contra,  Underbill  v.  Ry.  Co., 
20  Barb.  (N.  Y.)  455;  while  in  others  even 
an  assignment  of  the  grantor's  interest  is 
held  valid,  if  made  before  breach ;  McKis- 
sick v.  Pickle,  16  Pa.  140;  and  of  a  particu- 
lar estate;  Van  Rensselaer  v.  Ball,  19  N.  Y. 
100.  In  equity,  a  condition  with  a  limitation 
over  to  a  third  person  will  be  regarded  as  a 
trust,  and,  though  the  legal  rights  of  the 
grantor  and  his  heirs  may  not  be  destroyed, 
equity  will  follow  him  and  compel  a  per- 
formance   of    the    trust ;    Co.    Litt    236  a ; 


condition 


585 


CONDITD'X^  OF  SALE 


Downer  v.  Downer,  9  Watts  (Pa.)  60;  Wheel- 
er v.  Walker,  2  Conn.  201,  7  Am.  Dec.  204. 
Consult  Rlackstone;  Kent,  Commentaries; 
Crabb;  Washburn,  Real  Prop.;  Leake,  Pol- 
lock, Contracts.  As  to  effect  of  conditions  in 
deeds,  see  Conger  v.  Low,  124  Ind.  308,  24 
N.  E.  889,  9  L.  R.  A.  165. 

CONDITIONAL  FEE.  A  fee  which,  at 
the  common  law,  was  restrained  to  some  par- 
ticular heirs,  exclusive  of  others. 

It  was  called  a  conditional  fee  by  reason  of  the 
condition,  expressed  or  implied  in  the  donation  of 
It,  that  if  the  donee  died  without  such  particular 
heirs,  the  laud  should  revert  to  the  donor.  For  this 
was  a  condition  annexed  by  law  to  all  grants  what- 
soever, that,  on  failure  of  the  heirs  specified  in  the 
grant,  the  grant  should  be  at  an  end  and  the  land 
return  to  Its  ancient  proprietor. 

Such  a  gift,  then,  was  held  to  be  a  gift  upon  con- 
dition that  it  should  revert  to  the  donor  if  the 
donee  had  no  heirs  of  his  body,  but,  if  be 
should  then  remain  to  the  donee.  It  was,  therefore, 
called  a  fee  simple,  on  condition  that  the  donee  had 
issue.  As  soon  as  the  donee  had  is?ue  born,  his 
estate  was  supposed  to  become  absolute,  by  the 
performance  of  the  condition, — at  least  so  f;ir  ab- 
solute as  to  enable  him  to  charge  or  to  alienate  the 
land,  or  to  forfeit  it  for  treason.  But  on  the  pass- 
ing of  the  statute  of  Westminster  II.,  commonly 
called  the  statute  De  Donis  Conditionalibus,  the 
judges  determined  that  the  donee  had  no  longer  a 
conditional  fee  simple  which  became  absolute  and  at 
his  own  disposal  as  soon  as  any  issue  was  born; 
but  they  divided  the  estate  into  two  parts,  leaving 
the  donee  a  new  kind  of  particular  estate,  which 
they  denominated  a  fee  tail;  and  vesting  in  the 
donor  the  ultimate  fee  simple  of  the  land,  expectant 
on  the  failure  of  issue,  which  expectant  est. 
called  a  reversion.  And  hence  it  is  said  that  tenant 
In  fee  tail  Is  by  virtue  of  the  statute  De  Donis.  2 
Bla.  Com.  112. 

A  conditional  fee  may  be  granted  by  will 
as  well  as  by  deed :  Corey  v.  Springer,  13S 
Ind.  506,  37  N.  E.  322. 

CONDITIONAL  LIMITATION.  A  condi- 
tion followed  by  a  limitation  over  to  a  third 
person  in  case  the  condition  be  not  fulfilled 
or  there  be  a  breach  of  it. 

A  condition  determines  an  estate  after  breach 
upon  entry  or  claim  by  the  proper  person:  a  limita- 
tion marks  the  period  which  determines  an  estate 
without  any  act  on  the  part  of  him  who  has  the 
next  expectant  interest.  A  conditional  limitation 
is,  therefore,  of  a  mixed  nature,  partaking  of  that 
of  a  condition  and  a  limitation.  Proprietors  of 
Church  in  Brattle  Square  v.  Grant,  3  Gray  (Mass.) 
143,  63  Am.  Dec.  725.  The  limitation  over  need  not 
be  to  a  stranger;  2  Bla.  Com.  155;  Fifty  Associates 
v.  Howland,  11  Mete.    (Mass.)   102;    Watk.  Conv.   204. 

See  Condition;  Limitation;  1  Washburn, 
Real  Prop.  459;  4  Kent  122,  127;  1  Preston, 
Est.  §§  40,  41,  93. 

CONDITIONAL  SALE.  See  Sale;  Roll- 
ing Stock. 

CONDITIONAL  STIPULATION.  In  Civil 
Law.  A  stipulation  on  condition.  Inst.  3, 
16,  4. 

CONDITIONS  OF  SALE.  The  terms  upon 
which  the  vendor  of  property  by  auction  pro- 
poses to  sell  it. 

The  instrument  containing  these  terms, 
when  reduced  to  writing  or  printing. 

It  is  always  prudent  and  advisable  that 
the  conditions  of  sale  should  be  printed  and 


exposed  in  the  auction-room:    when  so  done, 
they  are  binding  on  both  parties,  and  noth-- 
ing  that  is  sat d  at  the  time  i  to  add 

to  or  vary  such  printed   conditions,    will  be 
of  any  avail;   12  Last  0 ;   6   •  10;  15 

id.  521;   1  Des.  Ch.  573;  Judson  v.  Wa 
Johns.    (X.  Y.)    525,    6    A 
forms   of    conditions    of  sale    in    : 
Auct.  233-243;  Sugden,  Vend.  App.  no. 

C0ND0NACI0N.  In  Spanish  Law.  The 
remission    of    a    debt,    either    expressly    or 

tacitly. 

CONDONATION.      The     conditional      for- 
giveness or  remission,  by  a  husband  or 
of  a  matrimonial  offence  which  the  other  has 
committed. 

"A  1 'bitting  out  of  an  imputed  offence 
against  the  marital  relation  so  as  to  restore 
the  offending  party  to  the  same  position  he 
or  she  occupied  before  the  offence  was  com- 
mitted." 1  Sw.  &  Tr.  334.  See,  as  to  this 
definition,  2  Pish.  Mar.  &  Div.  §  35;  Odom 
v.  Odom,  36  Ga.  286;   [1893]  P.  D.  31 

While  the  condition  remains  unbroken, 
condonation,  on  whatever  motive  it  proceed- 
ed, is  an  absolute  bar  to  the  remedy  for  the 
particular  injury  condoned;  Bish.  Mar.  & 
Div.  S  354. 

The  doctrine  of  condonation  is  chiefly. 
though  not  exclusively,  applicable  to  the  of- 
fence of  adultery.  It  may  be  eithei 
i.  e.  signified  by  words  or  writing,  or  Implied 
from  the  conduct  of  the  parties.  The  latter, 
however,  is  much  the  more  common;  and  it 
is  in  regard  to  that  that  the  chief  legal  diffi- 
culty has  arisen.  The  only  general  rule  is. 
that  any  cohabitation  with  the  guilty  party. 
after  the  commission  of  the  offence,  and 
with  the  knowledge  or  belief  on  the  part  of 
the  injured  party  of  its  commission,  will 
amount  to  conclusive  evidence  of  condona- 
tion; but  this  presumption  may  be  rebutted 
by  evidence;  60  L.  J.  Prob.  73.  The  con- 
struction, however,  is  m<  when  the 
wife  than  when  the  husband  is  the  delin- 
quent party;  Bish.  Mar.  &  Div.  §  355;  Miles 
v.  Miles,  101  111.  App.  40(5.  A. mere  promise 
to  condone  is  not  in  itself  a  condonation;  ] 
Sw.  &  Tr.  183;  Qnarles  v.  Quarles,  1'.'  Ala. 
303;  but  see,  contra,  Chrlstianberry  v.  Chris- 
tianberry,  3  Blackf.  (Ind.)  202,  25  Am.  Dec. 
96,  where  there  was  only  an  unaccepted  in- 
ducement held  out  to  the  wife  to  return. 
Knowledge  of  the  offence  is  essential;  Burns 
v.  Burns.  60  Ind.  250;  Turnbull  v.  Turnbull, 
23  Ark.  615;  Connelly  v.  Connelly,  '.is  Mo. 
App.  95.  71  S.  W.  1111.  A  divorce  will  not 
be  granted  for  adultery  where  the  parties 
continue  to  live  together  after  it  was  known  ; 
Land  v.  Martin.  46  La.  Ann.  1246,  1.".  South. 
G57;  Day  v.  Day,  71  Kan.  385,  80  Pac.  974, 
<">  Ann.  Oas.  169;  or  there  is  sexual  inter- 
course after  knowledge  of  the  adultery ; 
Rogers  v.  Rogers.  67  X.  J.  Eq.  534,  58  Atl. 
822 ;  or  sleeping  together  for  a  single  night : 
Toulson  v.  Toulson,  93  Md.  751,  50  Atl.  401 ; 


CONDONATION 


586 


CONDONATION 


Todd  v.  Todd  (N.  J.)  37  Atl.  7G6  (the  wife 
alleging  that  he  had  intercourse  with  her)  ; 
contra,  where  for  three  or  four  nights  they 
occupied  the  same  bed,  but  there  was  no 
reconciliation  and  no  sexual  intercourse; 
Hann  v.  Hann,  58  N.  J.  Eq.  211,  42  Atl.  564 ; 
or  where  they  continued  to  cohabit  but  a 
disease  was  communicated  to  the  wife ;  Muir 
v.  Muir,  92  S.  W.  314,  28  Ky.  L.  Rep.  1355, 
4  L.  R.  A.  (N.  S.)  909;  or  where  the  hus- 
band had  a  venereal  disease  which  he  told 
the  wife  was  the  result  of  an  injury ;  Wil- 
kius  v.  Wilkins  (N.  J.)  58  Atl.  821 ;  or  where 
the  wife  denied  actual  guilt,  and  the  hus- 
band, after  belief  in  her  innocence  was  no 
longer  possible,  left  her;  Gosser  v.  Gosser, 
183  Pa.  499,  38  Atl.  1014 ;  or  where  the  hus- 
band lied  to  the  wife  as  to  his  offence,  and 
she  left  him  after  she  learned  the  truth ; 
Merrill  v.  Merrill,  41  App.  Div.  347,  5S  N.  Y. 
Hupp.  503. 

Every  implied  condonation  is  upon  the  im- 
plied condition  that  the  party  forgiven  will 
abstain  from  the  commission  of  the  like  of- 
fence thereafter;  and  also  treat  the  forgiv- 
ing party,  in  all  respects,  with  conjugal 
kindness.  Such,  at  least,  is  the  better  opin- 
ion; though  the  latter  branch  of  the  propo- 
sition has  given  rise  to  much  discussion. 
It  is  not  necessary,  therefore,  that  the  sub- 
sequent injury  be  of  the  same  kind,  or  prov- 
ed with  the  same  clearness,  or  sufficient  of 
itself,  when  proved,  to  warrant  a  divorce  or 
separation.  Accordingly,  it  seems  that  a 
course  of  unkind  and  cruel  treatment  will 
revive  condoned  adultery,  though  the  latter 
be  a  ground  of  divorce  a  vinculo  matrimonii, 
while  the  former  will,  at  most,  only  author- 
ize a  separation  from  bed  and  board ;  John- 
son v.  Johnson,  14  Wend.  (N.  Y.)  637;  War- 
ner v.  Warner,  31  N.  J.  Eq.  225;  Wagner  v. 
Wagner,  6  Mo.  App.  573;  Atteberry  v.  Atte- 
berry,  8  Or.  224.  Acts  of  cruelty  against  a 
wife  revive  acts  of  cruelty  which  have  been 
condoned;  Straus  v.  Straus,  67  Hun  491,  22 
N.  Y.  Supp.  567 ;  Denison  v.  Denison,  4 
Wash.  705,  30  Pac.  1100. 

Condonation  is  not  so  strict  a  bar  against 
the  wife  as  the  husband ;  Armstrong  v.  Arm- 
strong, 32  Miss.  279;  Phillips  v.  Phillips,  1 
111.  App.  245;  1  Hag.  Ec.  773. 

The  presumption  of  condonation  from  co- 
habitation in  cases  of  cruelty  is  not  so 
strong  as  in  cases  of  adultery ;  2  Bish.  Mar. 
&  Div.  §  50  ct  seq.  A  divorce  on  the  ground 
of  cruelty  will  not  be  granted  where  the  par- 
ties lived  together  a  long  time  after  the  al- 
leged cruelty  and  before  the  action  was 
brought,  as  the  offence  will  be  presumed  to 
have  been  condoned ;  O'Connor  v.  O'Connor, 
109  N.  C.  139,  13  S.  E.  S87 ;  Hitchins  v.  Hitch- 
ins,  140  111.  326,  29  N.  E.  8S8 ;  Nullmeyer  v. 
Nullmeyer,  49  111.  App.  573.  But  not  in  cas- 
es where  it  is  overlooked  for  a  time,  but  its 
continuance  makes  it  intolerable;  Owens  v. 
Owens,  96  Va.  191,  31  S.  E.  72;   Gauntt  v. 


Gauntt,  34  Pa.   C.   C.   R.   100;  Breedlove  v. 
Breedlove,  27  Ind.  App.  560,  61  N.  E.  797. 

Enduring  cruelty  for  several  years  in  the 
hope  of  better  treatment  will  not  prevent 
a  reliance  upon  the  original  cruelty ;  Creyts 
v.  Creyts,  133  Mich.  4,  94  N.  W.  383;  Coch- 
ran v.  Cochran,  93  Minn.  284,  101  N.  W.  179 ; 
Twj  man  v.  Twyman,  27  Mo.  383. 

Where  a  husband's  infidelity  was  condon- 
ed, a  remedy  because  of  such  infidelity  was 
revived  by  his  subsequent  cruelty  to  her 
Moorhouse  v.  Moorhouse,  90  111.  App.  401 
Fisher  v.  Fisher,  93  Md.  298,  48  Atl.  833 
or  by  subsequent  adultery ;  19  L.  Q.  R.  365 
or  by  subsequent  desertion ;  29  id.  108. 

Condonation  of  husband's  cruelty  is  upon 
the  explicit  condition  that  he  will  thereafter 
treat  her  kindly.  A  breach  of  this  condition 
revives  the  right  of  suit  for  the  original 
misconduct;  Smith  v.  Smith,  167  Mass.  87, 
45  N.  E.  52 ;  and  it  is  not  necessary  that  the 
subsequent  misconduct  shall  be  sufficient  to 
warrant  divorce  without  regard  to  previous 
cruelty  if  there  is  such  frequent  unkindness 
as  to  warrant  the  belief  that  it  will  break 
out  into  acts  of  gross  cruelty ;  Jefferson  v. 
Jefferson,  168  Mass.  456,  47  N.  E.  123. 

If  condonation  was  based  upon  conditions 
which  the  husband  failed  to  perform,  it  was 
ineffective;  Ferguson  v.  Ferguson,  145«  Mich. 
290,  108  N.  W.  682.  It  is  always  based  upon 
the  condition  of  proper  conduct  afterwards ; 
a  breach  of  a  condition  revives  the  original 
offence;  Owens  v.  Owens,  96  Va.  191,  31  S. 
E.  72;  Mosher  v.  Mosher,  16  N.  D.  269,  113 
N.  W.  99,  12  L.  R.  A.  (N.  S.)  820,  125  Am. 
St.   Rep.  654;    [1905]   P.  94. 

There  is  no  condonation  in  case  of  a  con- 
tinuing venereal  disease ;  Hooe  v.  Hooe,  122 
Ky.  590,  92  S.  W.  317,  5  L.  R.  A.  (N.  S.)  729, 
13  Ann.  Cas.  214. 

CONDUCT  MONEY.  Money  paid  to.  a 
witness  for  his  travelling  expenses.  Whar- 
ton. 

C0NDUCTI0  (Lat).  A  hiring;  a  bail- 
ment for  hire. 

It  is  the  correlative  of  locatio,  a  letting  for  hire. 
Conducti  actio,  in  the  civil  law,  is  an  action  which 
the  hirer  of  a  thing  or  his  heir  had  against  the 
latter  or  his  heir  to  be  allowed  to  use  the  thing 
hired.  Conducere,  to  hire  a  thing.  Conductor,  a 
hirer,  a  carrier;  one  who  undertakes  to  perform, 
labor  on  another's  property  for  a  specified  sum. 
Conductus,  the  thing  hired.  Calvinus,  Lex.;  Du 
Cange;    2  Kent  586.    See  Bailment. 

CONE  AND  KEY.  A  woman  at  fourteen 
or  fifteen  years  of  age  may  take  charge  of 
her  house  and  receive  cone  and  key  (that  is, 
keep  the  accounts  and  keys).  Cowell.  Said 
by  Lord  Coke  to  be  cover  and  keye,  meaning 
that  at  that  age  a  woman  knew  what  in  her 
house  should  be  kept  under  lock  and  key. 
Co.  2d  Inst.  203. 

C0NFECTI0  (Lat.  from  conficere).  The 
making  and  completion  of  a  written  instru- 
ment   5  Co.  1. 


CONFEDERACY 


5S7 


RATE  AI 


CONFEDERACY.  In  Criminal  Law.  An 
agreement  between  two  or  more  persons  to 
do  an  unlawful  act  or  an  act  which  though 
not  unlawful  in  itself,  becomes  so  by  the 
confederacy.  The  technical  term  usually 
employed  to  signify  (his  offence  is  conspir- 
acy. -  \.  Crowley,  -11  Wis.  284,  22 
Am.  Hep.  719;  Watson  v.  Navigation  Co.,  52 
How.  Pr.  (\.  Y.)  353. 

In  Equity  Pleading.  An  improper  combina- 
tion alleged  to  have  been  entered  into  be- 
tween the  defendants  to  a  bill  in  equity. 

A  general  charge  of  confederacy  is  made 
a  part  of  a  bill  in  chancery,  and  is  tbe  fourth 
part,  in  order,  of  tbe  bill;  but  it  has  become 
merely  formal,  except  in  eases  where  the 
complainant  intends  to  show  that  such  a  com- 
bination actually  exists  or  existed,  in  which 
case  a  special  charge  of  such  confederacy 
must  he  made.  Story,  Eq.  PI.  §  29;  Mitt.  Bq. 
PI.  41. 

In  International  Law.  An  agreement  be- 
tween two  or  more  states  or  nations,  by 
which  they  unite  for  their  mutual  protection 
and  good.  This  term  is  applied  to  such  an 
agreement  made  between  two  independent 
nations;  but  it  is  also  used  to  signify  the 
union  of  different  states  of  the  same  nation: 
as,  the  confederacy  of  the  states. 

The  original  thirteen  states,  in  1781,  adopted  for 
their  federal  government  the  "Articles  of  confeder- 
ation and  perpetual  union  between  the  states." 
These  were  completed  on  the  15th  of  N<> 
1777,  and,  with  the  exception  of  Maryland,  which 
afterwards  also  agreed  to  them,  were  adopted  by 
the  several  states,  which  were  thereby  formed  into 
a  federal  government,  going  into  effect  on  the  first 
day  of  March,  1781,  1  Story,  Const.  §  225,  and  so  re- 
mained until  the  adoption  of  tbe  present  constitu- 
tion, which  acquired  the  force  of  the  supreme  law 
of  the  land  on  the  first  Wednesday  of  March,  17S9. 
Owings  v.  Speed,  5  Wheat.  (U.  S.)  420,  5  L.  Ed.  124. 
See  Articles  of  Confederation. 

CONFEDERATE  BONDS.  As  the  bonds 
of  the  Confederate  States  have  been  declared 
illegal  by  the  Fourteenth  Amendment,  a  con- 
tract entered  into  since  the  war  for  the  sale 
and  delivery  of  such  bonds  is  void,  ami  no 
action  will  lie  for  a  breach  of  the  contract; 
Branch  v.  Haas,  16  Fed.  53. 

CONFEDERATE  MONEY.  Contracts 
made  during  the  rebellion  in  Confederate 
money  may  be  enforced  in  the  United  States 
courts,  and  parties  compelled  to  pay  in  law- 
ful money  of  the  United  States  the  actual 
value  of  the  notes  at  the  time  and  place  of 
contract;  Efflnger  v.  Kenney,  115  U.  S.  5GG, 
G  Sup.  Ct.  170.  2!)  L.  Ed.  495 ;  and  when  pay- 
ment was  accepted  and  receipted  for  by  the 
creditor,  it  was  held  to  be  a  valid  payment  ; 
Glasgow  v.  Lipse,  117  U.  S.  327,  G  Sup.  Ct. 
757,  29  L.  Ed.  901.  These  notes  were  cur- 
rency imposed  upon  the  community  by  ir- 
resistible force,  aud  it  must  be  considered  in 
the  courts  of  law  the  same  as  if  it  had  been 
issued  by  a  foreign  government  temporarily 
occupying  a  part  of  the  territory  of  the 
United  States;  Thoriugton  v.  Smith,  8  Wall. 


(U.  S.)  1,  19  L.  Ed.  361;  and  a  contract  pay- 
able in  such  notes  was  not  invalid  ;  Ilanauer 
v.   Woodruff,  15  Wall.   (TJ.   S.i   448,  21    I 

Confederal 
556,  22  I..  Ed.   106;    Sb  ...  Ill 

r.  s.  50,  4  Sup.  Ct  283,  28  L.  Ed. 
v.  Lillo.  103  U.  S.  T'.il'.  26   L.   I 
art  v.  Salamon,  94  Q.  S.  434,  21  L.  Ed 
Rives  v.  Duke,  105  U.  S.  132,  26  I. 
but  where  a  contract  was  entered   in; 
fore    the    war,    and    the    deferred 
came  due  and  were  discharged  with  depre- 
I  currency,  it  was  held,  as  against  the 
non-ratification  of  the  payment,  to  be  void; 
Opie  v.  Castleman,  32  Fed.  511. 

After  one  has  accepted  payment  in  Confed- 
erate money  and  ao  in  the  transac- 
tion for  fifteen  years,  1.  eluded  by 
laches  from  disputing  its  validity;  Wash- 
ington v.  Opie,  145  U.  s.  214,  12  s,, 
36  !..  Ed.  680.  Where  payment  was  made  in 
L864  in  such  money,  it  was  sufficie 
eration  though  it  afterwards  1  came  worth- 
less ;  Dohoney  v.  Womack,  l  Tex.  Civ.  App. 
:;54,  19  S.  W.  883,  20  S.  W.  950.  The  act  of  a 
fiduciary  in  accepting  Confederate  money 
in  payment  of  debts  due  the  estate  and  in- 
ig  the  proceeds  in  bonds  of  the  Confed- 
erate States  issued  for  the  avowed  purpose 
of  waging  war  against  the  United 
wholly  illegal;  Opie  v.  Castleman,  32  Fed. 
511. 

CONFEDERATE  STATES  OF  AMERICA. 
The  Confederate  States  were  a  dc  facto  gov- 
ernment in  the  sense  that  its  citizens  were 
bound  to  render  the  government  obedience  in 
civil  matters,  and  did  not  become  responsi- 
ble, as  wrong-doers,  for  such  acts  of  obedi- 
ence; Thoriugton  v.  Smith.  S  Wall.  (U.  S.) 
9,  19  L.  Ed.  361 ;  but  it  was  not  strictly  a  de 
facto  government;  ibid.;  see  Williams  v. 
Bruflfy,  96  U.  S.  176,  24  L.  Ed.  710.  During 
tbe  war  the  inhabitants  of  the  Confederate 
States  were  treated  as  belligerents;  Thor- 
ington  v.  Smith.  S  Wall.  (TJ.  S.)  10,  19  L.  Ed. 
361;  II.  S.  v.  Alexander.  2  Wall.  (U.  S.i  lot. 
17  L.  Ed.  915.  Laud  sold  to  the  Confederate 
government,  and  captured  by  the  Federal 
government,  became  the  property  of  the 
United  states;  U.  S.  v.  Iluckabee,  16  Wall. 
(U.  S.)  414,  21  L.  Ed.  157. 

The  Confederate  States  was  an  illegal  or- 
ganization, within  the  provision  of  the  con- 
stitution of  the  United  States  prohibiting  any 
treaty,  alliance,  or  confederation  of  one  state 
With  another;  whatever  efficacy,  therefore, 
its  enactments  possessed  in  any  state  enter- 
ing Into  that  organization,  must  be  attribut- 
ed to  the  sanction  given  to  them  by  that 
state;  Williams  v.  Bruffy,  06*  U.  S.  176,  24 
L.  Ed.  716.  The  laws  of  the  several 'states 
were  valid  except  so  far  as  they  tended  to 
impair  the  national  authority  or  the  rights 
of  citizens  under  the  constitution;    ibid. 

Unless  suspended  or  superseded  by  the 
commanders    of    the    United    States    forces 


CONFEDERATE  STATES  OF  AMERICA      58S 


CONFERENCE 


which  occupied  the  insurrectionary  states, 
the  laws  of  those  states,  so  far  as  they  af- 
fected the  Inhabitants,  remained  in  force 
duriug  the  war,  aud  over  them  their  tribu- 
nals continued  to  exercise  their  ordinary 
jurisdiction;  Coleman  v.  Tennessee,  97  U. 
S.  509,  24  L.  Ed.  1118. 

"Beyond  all  doubt,  the  late  rebellion 
against  the  government  of  the  United  States 
was  a  sectional  civil  war;  and  all  persons 
interested  in  or  affected  by  its  operations  are 
entitled  to  have  their  rights  determined  by 
the  laws  applicable  to  such  a  condition  of 
affairs."  Waite,  C.  J.,  in  Young  v.  U.  S.,  97 
U.  S.  39,  24  L.  Ed.  992. 

Transactions  between  persons  actually 
dwelling  within  the  territory  dominated  by 
the  government  of  the  Confederate  States 
were  not  invalid  for  the  reason  only  that 
they  occurred  under  the  sanction  of  the  laws 
of  that  government  or  of  any  local  govern- 
ment recognizing  its  authority;  that  within 
such  territory,  the  preservation  of  order,  the 
maintenance  of  police  regulations,  the  prose- 
cution of  crimes,  the  protection  of  property, 
the  enforcement  of  contracts,  the  celebration 
of  marriages,  the  settlement  of  estates,  etc., 
were,  during  the  war,  under  the  control  of 
the  local  governments  constituting  the  so- 
called  Confederate  States.  What  was  done1 
in  respect  of  such  matters  under  the  author- 
ity of  the  laws  of  these  local  de  facto  gov- 
ernments should  not  be  disregarded  or  held 
invalid  merely  because  those  governments 
were  organized  in  hostility  to  the  Union. 
Judicial  and  legislative  acts  in  the  respective 
states  should  be  respected  by  the  courts  if 
they  were  not  hostile  in  their  purpose  or 
mode  of  enforcement  to  the  authority  of  the 
national  government,  and  did  not  impair  the 
rights  of  citizens  under  the  federal  consti- 
tution. Harlan,  J.,  in  Baldy  v.  Hunter,  171 
U.  S.  388,  IS  Sup.  Ct.  890,  43  L.  Ed.  208. 

"The  government  of  the  Confederate 
States,  although  in  no  sense  a  government  de 
jure,  and  never  recognized  by  the  United 
,  States  as  in  all  respects  a  government  de 
facto,  yet  was  an  organized  and  actual  gov- 
ernment, maintained  by  military  power, 
throughout  the  limits  of  the  states  that  ad- 
hered to  it,  except  in  those  portions  of  them 
protected  from  its  control  by  the  presence 
of  the  armed  forces  of  the  United  States; 
and  the  United  States  had  conceded  to  that 
jrovernment  some  of  the  rights  and  obliga- 
tions of  a  belligerent."  Oakes  v.  U.  S.,  174 
U.  S.  794,  19  Sup.  Ct.  864,  43  L.  Ed.  1169. 
See  2  So.  L.  Rev.  313 ;   3  id.  47 ;   Secession. 


CONFEDERATION.  The  name  given  to 
the  form  of  government  which  the  American 
colonies  during  the  revolution  devised  for 
their  mutual  safety  and  government. 

CONFEDERATION  CLAUSE.  See  Con- 
federacy. 

CONFERENCE.     In   French  Law.    A  simi- 


larity between  two  laws  or  two  systems  of 
laws. 

In  International  Law.  Verbal  explanations 
between  the  representatives  of  at  least  two 
nations,  for  the  purpose  of  accelerating  mat- 
ters by  avoiding  the  delays  and  difficulties 
of   written  communications. 

A  meeting  of  plenipotentiaries  of  different 
nations  to  adjust  differences  or  formulate  a 
plan  of  joint  action ;  as,  the  conference  at 
Berlin  of  representatives  of  the  United 
States,  Great  Britain,  and  Germany  respect- 
ing the  affairs  of  Samoa,  in  18S9,  the  mone- 
tary conference  at  Brussels  of  representa- 
tives of  the  United  States  and  several  Euro- 
pean powers  in  1894,  and  the  Hague  Confer- 
ences of  1S99  and  1907.     See  Congress. 

In  Legislation.  Mutual  consultations  by 
two  committees  appointed,  one  by  each  house 
of  a  legislature,  in  cases  where  the  houses 
cannot  agree  in  their  action. 

CONFESSION.  In  Criminal  Law.  The 
voluntary  admission  or  declaration  made  by 
a  person  who  has  committed  a'crime  or  mis- 
demeanor, to  another,  of  the  agency  or  par- 
ticipation which  he  had  in  the  same.  Peo- 
ple v.  Parton,  49  Cal.  632;  State  v.  Novak, 
109  la.  717,  79  N.  W.  465. 

Judicial  confessions  are  those  made  before 
a  magistrate  or  in  court  in  the  due  course  of 
legal  proceedings. 

Extra-judicial  confessions  am  those  made 
by  the  party  elsewhere  than  before  a  magis- 
trate or  in  open  court. 

Voluntary    confessions    are   admissible    in 
evidence;    Rafe  v.  State,  20  Ga.  60;    Hamil- 
ton v.  State,  3  Ind.  552;    Dick  v.  State,  30 
Miss.  593 ;    Craig  v.  State,  30  Tex.  App.  619, 
18  S.  W.  297;   McQueen  v.  State,  94  Ala.  50, 
10  South.  433 ;    State  v.  Coella,  3  Wash.  99, 
28  Pac.  28;    Wigginton  v.  Com.,  92  Ky.  282, 
17  S.  W.  634 ;   People  v.  Taylor,  93  Mich.  638, 
53  N.  W.  777 ;    People  v.  Goldenson,  76  Cal. 
328,  19  Pac.  161 ;   Anderson  v.  State,  25  Neb. 
555.  41  N.  W.  357 ;  State  v.  Demareste,  41  La. 
Ann.  617,  6  South.  136;    Com.  v.  Culver,  126 
Mass.  464;    but  a  confession  is  not  admis- 
sible in  evidence  where  it  is  obtained  by  tem- 
poral   inducement,    by   threats,    promise    or 
hope  of  favor  held  out  to  the  party  in  respect 
of  his  escape  from  the  charge  against  him, 
by  a  person  in  authority ;    4  C.  &  P.   570 ; 
State  v.  York,  37  N.  H.  175 ;   Simon  v.  Sta  Le, 
5   Fla.   2S5;     Smith   v.   State,   10   Ind.    106; 
Smith  v.  Com.,  10  Gratt.   (Va.)  734;    Flagg 
v.  People,  40  Mich.  706;  Joe  v.  Siate,  38  Ala. 
422 ;    Earp  v.  State,  55  Ga.  136 ;    Garrard  v. 
State,  50  Miss.  147;    Territory  v.  McClin,  1 
Mont.  394;  Beery  v.  U.  S.,  2  Col.  186;  State 
v.  Carr,  37  Vt.  191;    Laros  v.  Com.,  84  Pa. 
200;    see  People  v.  Rogers,  18  N.  Y.  9,   72 
Am.  Dec.  -±84 ;  Com.  v.  Cuffee,  108  Mass.  28^  ; 
State  v.  Day,  55  Vt.  510 ;    State  v.  De  Graff, 
113  N.  C.  688,  18  S.  E.  507 ;  or  where  there  is 
reason  to  presume  that  such  person  appear- 
ed to  the  party  to  sanction  such  threat  or  in- 


CONFESSION 


5S9 


CON] 


ducement ;  5  C.  &  P.  530  ;   2  Crawf.  &  D.  347 ; 
State  v.  Roberts,  12  N.  C.  259. 

To  make  an  admission  or  a  declaration  a 
confession,  it  must,  in  some  way,  have  been 
an  acknowledgment  of  guilt,  and  have 
so  intended,  tor  it  must  have  been  volun- 
tary ;  State  v.  Novak,  109  la.  717,  79  N.  W. 
465;  People  v.  Parton,  49  Cal.  632.  Volun- 
tary docs  not  in  such  cases  mean  spontane- 
ous :  Levison  v.  state  r>i  Ala.  520;  Roesel  v. 
State,  G2  N.  J.  L.  21G,  41  Atl.  40S.  There 
are  three  kinds:  (1)  A  confessiun  in  open 
court  of  the  prisoner's  guilt,  which  i 
elusive  and  renders  any  proof  unnecessary. 
(2)  The  next  highest  kind  of  confession  is 
that  made  before  a  magistrate.  (3)  The 
lowest  is  that  winch  is  made  to  any  other 
!i,  and  requires  to  be  sustained  by  proof 
of  corroborating  circumstances;  Garrard  v. 
State,  50  Miss.  147. 

The  distinction  between  a  confession  and 
a  statement  or  declaration  is  recognized  both 
by  courts  and  text-writers.  A  confession  in 
a  legal  sense  is  restricted  to  an  acknowledg- 
ment of  guilt  made  by  a  person  alter  an  of- 
fense has  been  committed  and  does  not  apply 
to  a  mere  statement  or  declaration  of  an  in- 
dependent fact  from  which  such  guilt  may 
be  inferred;  State  v.  Campbell,  73  Kan.  688, 
85  Pac.  784,  9  L.  R.  A.  (N.  S.)  533,  9  Ann. 
Cas.  1203 ;  State  v.  Reinhart,  26  Or.  466,  38 
Pac.  822 ;  People  v.  Molineux,  168  N.  Y.  264, 
61  N.  E.  286,  62  L.   R.  A.  193. 

Where  a  defendant  attended  an  inquest 
in  obedience  to  a  subpoena  and  testified  un- 
der a  threat  of  punishment  for  contempt  if 
he  refused,  his  testimony  was  held  admissi- 
ble, though  he  was  not  advised  of  his  rights 
when  it  was  given ;  it  being  shown  that  he 
was  not  under  arrest  or  formally  accused  of 
crime ;  People  v.  Molineux,  16S  N.  Y.  264, 
61  N.  E.  2S6,  62  L.  R.  A.  193.  To  the  same 
effect,  Taylor  v.  State,  37  Neb.  78S.  56  N.  W. 
623 ;  People  v.  Mondon,  103  N.  Y.  211,  8  N. 
E.  496,  57  Am.  Rep.  709;  People  v.  Chap- 
leau,  121  N.  Y.  266,  24  N.  E.  409;  Wilson  v. 
State,  110  Ala.  1,  20  South.  415,  55  Am.  St. 
Rep.  17;  State  v.  Coffee,  56  Conn.  399,  16 
Atl.  151;  People  v.  Hickman,  113  Cal.  80, 
45  Pac.  175;  People  v.  Parton,  -19  Cal.  632. 
The  inducement  must  be  held  out  by  a  person 
in  authority;  Com.  v.  Tuckerman,  10  Gray 
(Mass.)  17.;;  but  see  4  C.  &  P.  570;  other- 
wise the  confession  is  admissible;  1  C.  &  P. 
97,  129;  State  v.  Gossett,  '•>  Rich.  (S.  C.)  42S ; 
Shifilet  v.  Com.,  14  Gratt.  (Va.)  052 ;  Com.  v. 
Sego,  125  Mass.  210:  Oady  v.  State,  11  Miss. 
332 ;  Ulrich  v.  People,  39  Mich.  245 :  but  see 
Spears  v.  State,  2  Ohio  St.  5S3;  or  if  the  in- 
ducement be  spiritual  merely;  l  Mood.  197; 
Jebb,  Ir.  15;  Com.  v.  Drake.  15  Mass.  161; 
Fouts  v.  State,  S  Ohio  St.  9S ;  or  an  appeal 
to  the  party  to  speak  the  truth  :  L.  R.  1  C.  C. 
362;  Cady  v.  State.  11  Miss.  333;  Huffman 
v.  State,  130  Ala.  89,  30  South.  :;<)4:  State  v. 
General   Armstrong,   167  Mo.  267,   66   S.   W. 


961;    Com.   v.   Sego.  .  210;    even  if 

the  appeal  comes  from  an  otlicer  of  the  law; 
15  Ir.  L.  R.  N.   S4  CO;    Hardh 
I  ml.   350;     State   v.   M<  I...        Lin,    n    ]• 
Davis  v.  State,  2  Tex.  App.  588;    Hornsby  v. 
State,  91  Ala.  55,  10  South.  522;    Com.  v.  My- 

530,  :;•;  N.  B.   181;    bn 
Crawf.  &  I).  152.     Mere  advice  to  < 
tell    the   truth    does  not   exclude;     State   v. 
Hagan,  54  Mo.  102;    Stafford  1 
502;    but  see  State  v.  Carson,  ::';  S.  C.  524, 
L5  S.   i:.  588;    and  the  temporal  IndUG 
must  have  been  held  out  by  the  person   to 
whom  the  confession  was  made;    4  C.  &  P. 
223;    unless  collusion   be  suspected;    4  C.  & 
P.  550.     The  fact  that  defendant  was  intoxi- 
cated when  he  made  his  confession,  though 
tending  to  affect  its  weight,  is  not  ground 
lor  its  exclusion ;   White  v.  State,  32  lex.  Cr. 
l;.  625,  25  S.    W.  784;    State  v.    1: 

.  42   South.  .'Jr.li;    Lester  v.   state,  32 
Ark.    7li7;     Eskridge   v.    State,    25    Ala.   30. 

Confessions  made  by  an  accused  in  her 
sleep  were  held  admissible;  State  v.  Mor- 
gan, ::.".  W.  Va.  266,  13  S.  E.  385;  contra, 
People  v.  Robinson,  19  Cal.  41. 

Nervousness  on  the  part  of  the  accused  will 
not  render  his  statements  inadmissible;  State 
v.  Jones,  47  La.  Ann.  1524,  IS  South.  515; 
or  that  he  was  greatly  excited;  People  v. 
Cokahnour,  120  Cal.  lt>:;.  52  Pac.  .".or,;  Young 
v.  State,  90  Md.  579,  45  Atl.  531;  or  that 
he  had  but  recently  recovered  from  delirium 
tremens:  Com.  v.  Chance,  171  Mass.  245,  54 
N.  E.  551,  75  Am.  St.  Rep.  306. 

A  confession  is  admissible  though  elicited 
by  questions  put  to  a  prisoner  by  a  consta- 
ble, magistrate,  or  other  person;  5  C.  &  P. 
312;  Austin  v.  State.  14  Ark.  556;  Com.  v. 
Smith,  119  Mass.  305;  Murphy  v.  People.  63 
N.  Y.  590;  State  v.  Carlisle,  57  Mo.  102; 
State  v.  Ingram,  16  Kan.  14;  McQueen  v. 
State,  94  Ala.  50,  10  South.  433;  Bell  v. 
State,  31  Tex.  Cr.  R.  276.  20  S.  AY.  540;  State 
v.  McLaughlin,  44  la.  S2  :  even  though  the 
question  assumes  the  prisoner's  guilt  or  the 
confession  is  obtained  by  trick  or  artifice; 
1  Mood.  28;  Sain  v.  State.  33  Miss.  :;i7:  State 
v.  Frederick-.  85  Mo.  145;  State  v.  Staley. 
14  Minn.  105  (Gil.  75);  Balbo  v.  Peo; 
N.  Y.  4S4:  King  v.  State,  40  Ala.  314;  and 
although  it  appears  that  the  prisoner  was 
not  warned  that  what  he  said  would  be  used 
against  him;  8  Mod.  80;  9  C.  &  1'.  124. 
Statements  made  to  a  trial  judge  freely  and 
voluntarily  are  admissible  in  evidence:  State 
v.  Chambers,   15  La.  Ann.  36,  11  South.  944. 

Confession  under  oath  is  admissible  when 
freely  made;  Com.  v.  Wesley.  100  Mas--.  248, 
44  N.  B.  228;  Shoefder  v.  state.  3  Wis.  823; 
Com.  v.  Clark,  130  Ta.  641,  IS  Atl.  088  :  State 
v.  Legg.  50  W.  Ya.  315.  53  S.  K.  545,  ::  I-  R.  A. 
(X.  S.)  L152;  U.  S.  v.  Brown,  40  Fed.  457: 
People  v.  McGloin,  91  N.  Y.  211.  That  it 
was  made  under  oath  does  not  change  it  from 
a    confession   into   a    deposition ;     People    v. 


CONFESSION 


590 


CONFESSION 


Owen,  154  Mich.  571,  118  N.  W.  590,  21  L.  It. 
A.  (N.  S.)  520. 

The  question  of  the  admissibility  of  con- 
fessions at  examinations  under  oath  is  al- 
most wholly  controlled  by  statute,  the  pris- 
oner being  permitted  to  become  a  witness  for 
himself,  and  being  entitled  to  be  cautioned 
that  his  statements  may  be  used  against  him. 
It  is  then  simply  a  question  whether  the  stat- 
utory requirements  have  been  fulfilled. 
Where  a  statute  contained  no  provision  au- 
thorizing or  permitting  an  oath  in  the  pre- 
liminary examination,  a  confession  under 
oath  was  held  inadmissible;  People  v.  Gib- 
bons, 43  Cal.  557. 

The  spirit  of  the  law  is  that  one  accused 
of  crime  shall  not  be  required  to  be  put  un- 
der oath,  and  thus  placed  in  the  dilemma  of 
either  being  required  to  testify  against  him- 
self or  being  subject  to  the  penalties  of  false 
swearing;  Adams  v.  State,  129  Ga.  248,  58 
S.  E.  822,  17  L.  R.  A.  (N.  S.)  468,  12  Ann. 
Cas.  15S,  where  the  accused  were  summon- 
ed before  a  coroner's  jury,  and  without  be- 
ing informed  of  their  right  not  to  testify, 
were  sworn. 

A  statement,  not  compulsory,  made  by  a 
party  not  at  the  time  a  prisoner  under  a 
criminal  charge,  is  admissible  in  evidence 
against  him,  although  it  is  made  upon  oath ; 
5  C.  &  P.  530 ;  State  v.  Broughton,  29  N.  C. 
96,  45  Am.  Dec.  507;  State  v.  Vaigneur,  5 
Rich.  (S.  C.)  391;  Com.  v.  Reynolds,  122 
Mass.  454 ;  Alston  v.  State,  41  Tex.  39 ;  Sny- 
der v.  State,  59  Ind.  105;  contra,  Josephine 
v.  State,  39  Miss.  615;  see  8  C.  &  P.  250; 
otherwise,  if  the  answers  are  compulsory ; 
1  Den.  Cr.  Cas.  236 ;  People  v.  McMahon,  15 
N.  Y.  384;  Shoeffler  v.  State,  3  Wis.  823; 
People  v.  McMahon,  2  Park.  Cr.  Cas.  (N.  Y.) 
663 ;  U.  S.  v.  Prescott,  2  Dill.  405,  Fed.  Cas. 
No.  16.0S5 ;    People  v.  Soto,  49  Cal.  69. 

A  confession  may  be  inferred  from  the 
conduct  and  demeanor  of  a  prisoner  when  a 
statement  is  made  in  his  presence  affecting 
himself ;  5  C.  &  P.  332 ;  State  v.  Crowson,  98 
N.  C.  595,  4  S.  E.  143 ;  .  Slattery  v.  People,  76 
111.  217;  Murphy  v.  State,  36  Ohio  St.  628; 
Broyles  v.  State,  47  Ind.  251;  unless  such 
statement  is  made  in  the  deposition  of  a  wit- 
ness or  examination  of  another  prisoner  be- 
fore a  magistrate;  1  Mood.  347;  6  C.  &  P. 
164. 

Where  a  confession  has  been  obtained,  or 
an  inducement  held  out,  under  circumstances 
which  would  render  a  confession  inadmissi- 
ble, a  confession  subsequently  made  is  not 
admissible,  unless  from  the  length  of  time 
intervening,  from  proper  warning  of  the  con- 
sequences, or  from  other  circumstances,  there 
is  reason  to  presume  that  the  hope  or  fear 
which  influenced  the  first  confession  is  dis- 
pelled;  1  Greenl.  Ev.  221;  4  C.  &  P.  225; 
State  v.  Guild,  10  N.  J.  L.  163,  18  Am.  Dec. 
404;  State  v.  Patrick,  48  N.  C.  443;  State 
v.  Vaigneur,  5  Rich.  (S.  C.)  391 ;    Van  Buren 


v.  State,  24  Miss.  512;  Bubster  v.  State,  33 
Neb.  663,  50  N.  W.  953 ;  State  v.  Drake,  113 
N.  C.  624,  18  S.  E.  166;  State  v.  Carr, 
37  Vt.  191;  Com.  v.  Sheets,  197  Pa.  69,  46 
Atl.  753;  People  v.  Castro,  125  Cal.  521,  58 
Pac.  133;  Smith  v.  State,  74  Ark.  397,  85 
S.  W.  1123 ;  State  v.  Wood,  122  La.  1014,  48 
South.  438,  20  L.  R.  A.  (N.  S.)  392 ;  U.  S.  v. 
Charles,  2  Cra.  C..C.  76,  Fed.  Cas.  No.  14,- 
7S0;  and  the  motives  proved  to  have  been 
offered  will  be  presumed  to  continue,  and  to 
have  produced  the  confession,  unless  the  con- 
trary is  shown  by  clear  evidence,  and  the  con- 
fession will  be  rejected ;  State  v.  Roberts,  12 
N.  C.  259;  Peter  v.  State,  12  Smedes  &  M. 
(Miss.)  31;  Com.  v.  Taylor,  5  Cush.  (Mass.) 
605;  State  v.  Potter,  18  Conn.  166;  Moore 
v.  Com.,  2  Leigh  (Va.)  701;  Bob  v.  State,  32 
Ala.  560;  Deathridge  v.  State,  1  Sneed 
(Tenn.)  75. 

Under  such  circumstances,  contemporane- 
ous declarations  of  the  party  are  receivable 
in  evidence,  or  not,  according  to  the  attend- 
ing circumstances ;  but  any  act  of  the  party, 
though  done  in  consequence  of  such  confes- 
sion, is  admissible  if  it  appears  from  a  fact 
thereby  discovered  that  so  much  of  the  con- 
fession as  immediately  relates  to  it  is  true ; 
1  Leach  263,  386;  Russ  &  R.  151;  Com.  v. 
Knapp,  9  Pick.  (Mass.)  496,  20  Am.  Dec.  491 ; 
Jordan  v.  State,  32  Miss.  382 ;  State  v.  Mot- 
ley, 7  Rich.  (S.  C.)  327. 

A  confession  made  before  a  magistrate  is 
admissible;  State  v.  Patterson,  68  N.  C.  292 ; 
State  v.  Hand,  71  N.  J.  L.  137,  58  Atl.  641; 
though  made  before  the  evidence  of  the  wit- 
nesses against  the  party  was  concluded ;  4 
C.  &  P.  567. 

Parol  evidence,  precise  and  distinct,  of  a 
statement  made  by  a  prisoner  before  a  mag- 
istrate during  his  examination,  is  admissi- 
ble though  such  statement  neither  appears  in 
the  written  examination  nor  is  vouched  for 
by  the  magistrate;  State  v.  Bowe,  61  Me. 
171 ;  7  C.  &  P.  188 ;  but  not  if  it  is  of  a 
character  which  it  was  the  duty  of  the  magis- 
trate to  have  noted;  1  Greenl.  Ev.  §  227,  n. 
Parol  evidence  of  a  confession  before  a  mag- 
istrate may  be  given  where  the  written  ex- 
amination is  inadmissible  through  informal- 
ity;  4  C.  &  P.  550,  n. ;  State  v.  Parish,  44 
N.  C.  239. 

Accusatory  statements  made  to  a  prisoner 
and  not  replied  to  by  him  are  admissible; 
Simmons  v.  State  (Ala.)  61  South.  466. 

The  whole  of  what  the  prisoner  said  must 
be  taken  together;  1  Greenl.  Ev.  218;  2  C. 
&  K.  221;  Brown  v.  Com.,  9  Leigh  (Va.)  633, 
33  Am.  Dec.  263;  Republica  v.  McCarty,  2 
Dall.  (Pa.)  86,  1  L.  Ed.  300.  Where  a  pris- 
oner signs  the  confession  which  is  written  by 
another  for  him,  he  waives  any  objection  to 
it  as  evidence;  Com.  v.  Coy,  157  Mass.  200, 
32  N.  E.  4. 

The  prevailing  rule  is  that  confessions  are 
prima  facie  voluntary;    Egner  v.   State,  25 


CONFESSION 


591 


CONFESSION 


Ohio  St.  464;  Com.  v.  Culver,  126  Mass. 
464;  State  v.  Sanders,  84  N.  C.  72S;  State 
v.  Meyers,  99  Mo.  107,  12  S.  W.  516;  State 
v.  Hottman,  196  Mo.  110,  94  S.  W.  237;  Stat.; 
v.  Grover,  96  Me.  36:;.  52  Atl.  757 ;  Thunnan 
v.  State,  169  Ind.  240,  S2  N.  B.  04;  but  it 
is  sometimes  held  that  confessions  are  prima 
facie  involuntary  and  therefore  inadmissi- 
ble, ami  they  can  be  rendered  admissible 
only  by  showing  that  they  are  voluntary  and 
not  constrained;  Amos  v.  State,  83  Ala.  1, 
3  South.  749,  3  Am.  St.  Rep.  682;  Jackson  v. 
State,  83  Ala.  76,  3  South.  S47 ;  Corley  v. 
State,  50  Ark.  305,  7  S.  W.  255;  but  a  con- 
fession is  not  rendered  Inadmissible  by  the 
fact  that  the  party  is  in  custody,  provided 
it  is  not  extorted  by  Inducements  or  threats; 
Pierce  v.  U.  S.,  160  U.  S.  355,  16  Sup.  Ct 
321,  40  L.  Ed.  454;  Nicholson  v.  State,  38 
Md.  140 ;  State  v.  Johnson,  30  La.  Ann.  S81 ; 
State  v.  Hernia,  68  N.  J.  L.  299,  53  Atl.  S5 ; 
State  v.  Conly,  130  N.  C.  6S3,  41  S.  E.  53 1; 
Hintz  v.  State,  125  Wis.  405,  104  N.  W.  110 ; 
Calloway  v.  State,  103  Ala.  27,  15  South.  821 ; 
State  v.  Armstrong,  203  Mo.  554,  102  S.  W. 
503. 

The  practice  of  eliciting  confessions  by  a 
magistrate  during  the  preliminary  examina- 
tion   has   been    strongly    condemned.      Such 
a  power,  once  admitted,  is  liable  to  unlimited 
abuse.     It  is  a  power  not  judicial,  but  es- 
sentially   inquisitorial,    and,    on    the    whole, 
prejudicial  to  the  administration  of  justice; 
Kelly  v.  State,  72  Ala.  244 ;  Brown  v.  Walker, 
161  U.  S.  596,  16  Sup.  Ct.  644,  40  L.  Ed.  819. 
In  Brain  v.  U.  S.,  168  XL  S.  532,  18  Sup. 
Ct.  183,  42  L.  Ed.  56S,  it  was  said:   To  com- 
municate to  a  person  suspected  of  the  com- 
mission of  crime  the  fact  that  his  co-suspect 
has  stated  that  he  had  seen  him  commit  the 
offense ;    to  make  this  statement  to  him  un- 
der  circumstances    which    call   imperatively 
for  an  admission  or  a  denial ;   and  to  accom- 
pany the  communication  with  conduct  which 
necessarily   perturbs    the    mind    and    engen- 
ders confusion  of  thought;  and  then  to  use 
the  denial  made  by  the  person  so  situated  as  a 
confession  because  of  the  form  in  which  the 
denial  is  made,   is  not  only  to  compel   the 
reply,  but  to  produce  the  confusion  of  words 
supposed   to   he   found   in    it.    and   then    use 
statements   thus  brought  into  being  for  the 
conviction  of  the  accused.     A  plainer  viola- 
tion as  well  of  the  letter  as  of  the  spirit  and 
purpose  of  the  constitutional  immunity  could 
scarcely  be  conceived  of. 

A  confession  by  a  prisoner  who  had  been 
confined  Cor  several  days  in  a  sweat  box  is 
not  admissible  against  him,  though  no  threats 
nor  coercion  were  used,  nor  any  Inducements 
held  out  to  him;  Amnions  v.  State,  80  Miss. 
592,  32  South.  9,  IS  L.  R.  A.  (X.  S.)  70S.  92 
Am.  St.  Rep.  607.  Such  sweat  box  pro- 
cedure is  unlawful ;  Flagg  v.  People,  40  Mich. 
706. 

Where  the  accused  was  taken  to  the  otfice 


of  the  chief  of  police,  and  in  the  presence 
of  several  deputies,  (!<•  and  newspa- 

per men,  for  an  hour  to  an  hour  and  a  half, 
was  closely  questioned  by  those  present  un- 
til he  was  very  much  broken  down,  being 
very  weak  but  "not  quite  collapsed,"  and  in 
this  condition  he  confessed,  such  confession 
was  held  involuntary  and  inadmissible:  Gal- 
laher  v.   State,  40  Tex.  Cr.  EL  -  VV. 

38a 

In  31  Ont.  Rep.  14,  it  is  said  that  B 
statements  made  by  persons  accused,  while 
In  custody,  in  response  to  questions  put  by  an 
officer  in  charge,  the  Judges  have  regarded 
the  matter  from  three  points  of  view.  First, 
ire  those  who  consider  the  practice  so 
reprehensible  that  any  statement  so  obtained 
should  not  be  given  in  evidence.  Others, 
that  while  the  practice  of  interrogation  is 
undesirable  and  not  to  be  encouraged,  yet  the 
answer  so  obtained  could  not  be  rejected  as 
evidence.  The  third  class  held  that  such  an 
investigation  might  be  so  conducted  as  to  be 
useful  and  even  desirable  in  the  furtherance 
of  justice. 

That  the  confession  was  drawn  out  by  the 
questions  of  a  police  otlicer  will  not  render  it 
inadmissible;  Brain  v.  U.  S.,  108  U.  S.  532, 
18  Sup.  Ct.  183,  42  L.  Ed.  568;  Com.  v. 
Storti,  177  Mass.  339,  58  N.  E.  1021;  Com. 
v.  Williams,  171  Mass.  461,  50  N.  B.  1035; 
State  v.  Phelps,  74  Mo.  12s.  in  State  v. 
Brinte,  4  Pennewill  (Del.)  551,  58  Atl.  258,  an 
objection  was  made  that  such  a  conf 
was  involuntary  under  the  5th  Amendment 
to  the  U.  S.  Constitution,  but  it  was  held 
that  this  applies  to  judicial  examinations, 
not  to  extra-judicial  confessions;  so  in 
(1893)  2  Q.  B.  12. 

The  prisoner's  confession,  when  the  corpus 
delicti  is  not  otherwise  proved,  is  Insufficient 
to  warrant  his  conviction ;  State  v.  Guild, 
10  N.  J.  L.  163,  185,  18  Am.  Dec.  404 ;  Keith- 
ler  v.  State,  10  Smedes  &  M.  (Miss.)  229; 
Flower  v.  U.  S.,  116  Fed.  241,  53  L.  Ed.  27 1  ; 
Bergen  v.  People,  17  111.  426,  65  Am.  Dec.  672. 
See,  contra,  Russ.  &  P.  481,  509;  1  Leach  311 ; 
People  v.  Rulloff,  3  Park.  <'i-.  <'as.  (X.  Y.i 
401;    Stephen  v.  State  11  Ga.  225. 

Whether  a  confession  is  voluntary  is  held 
to  he  primarily  for  the  court  to  determine; 
State  v.  Henna.  68  X.  J.  L.  299,  53  Atl.  85; 
state   v.    Burgwyn,    87    X.   C.   572;     Hunter 
v.     State,     74     Miss.     515,     21      South.     •"•"•">■. 
Smith  v.  Com..  10  Gratt   iVm.i   734;  Brown 
v.  State.  124  Ala.  76,  27  South.  250;  Murray 
v.  State,  25  Fla.  52S,  6  South.   t'.'S;  State  v. 
Gorham,   67   Vt.    365,    3]    Atl.    845;    State   v 
Sherman,  35  Mont.  '<\-.  90  Pac,  981,  it:'  Am. 
St.  Rep.  869;  Com.  v.  }U>wv,   132  Mass.  250 
State  v.  Stebbins,  1SS  Mo.  3S7,  87  S.  w 
People  v.  White,  176  X.  V.  331,  68  X.  B.  630 
Com     v.    Johnson.    217    Pa.   77,    66    Atl.   233 
Hintz  v.  State.  125  Wis.  40.1.  104  N.  W.  110 
other  cases  hold  that,  on  conflicting  evidence, 
it  is  lor  the  jury;  Burdge  v.  State,  53  Onio 


CONFESSION 


592 


CONFIDENCE 


St.  512,  42  N.  E.  594 ;  People  v.  Cassidy,  133 
N.  Y.  612,  30  N.  E.  1003;  Com.  v.  Sheu,  190 
Pa.  23.  42  Atl.  377;  Com.  v.  Burrougli,  1G2 
Mass.  513,  39  N.  E.  184;  People  v.  Robinson, 
86  Mich.  415,  49  N.  W.  260;  State  v.  Steb- 
bins,  188  Mo.  387,  87  S.  W.  460;  State  v. 
Moore,  160  Mo.  443,  61  S.  W.  199;  Com.  v. 
Epps,  193  Pa.  512,  44  Atl.  570;  People  v. 
Oliveria,  127  Cal.  377,  59  Pac.  772. 

When  tbere  is  a  conflict  of  evidence  as  to 
whether  a  confession  is  or  is  not  voluntary, 
if  the  court  decides  that  it  is  admissible,  the 
question  may  be  left  to  the  jury,  with  the 
direction  that  they  shall  reject  the  confes- 
sion if,  upon  the  whole  evidence,  they  are 
satisfied  it  was  not  the  voluntary  act  of  the 
defendant;  Wilson  v.  U.  S.,  162  U.  S.  613, 
16  Sup.  Ct.  S95,  40  L.  Ed.  1090,  followed  in 
Roesel  v.  State,  62  N.  J.  L.  216,  41  Atl.  408 ; 
Burdge  v.  State,  53  Ohio  St.  512,  42  N.  E. 
594 ;  Hardy  v.  U.  S.,  3  App.  D.  C.  35 ;  Com. 
v.  Preece,  140  Mass.  276,  5  N.  E.  494. 

Consult  Greenleaf;  Wigmore;  Phillipps, 
Evidence;  Wharton,  Criminal  Evidence; 
Roscoe,  Crim.  Ev. ;  Joy,  Confessions ;  1  Ben- 
nett &  H.  Lead.  Cr.  Cas.  112.  See  Admis- 
sions. 

CONFESSION     AND     AVOIDANCE.      The 

admission  in  a  pleading  of  the  truth  of  the 
facts  as  stated  in  the  pleading  to  which  it 
is  an  answer,  and  the  allegation  of  new  and 
related  matter  of  fact  which  destroys  the 
legal  effect  of  the  facts  so  admitted.  The 
plea  and  any  of  the  subsequent  pleadings 
may  be  by  way  of  confession  and  avoidance, 
or,  which  is  the  same  thing,  in  confession 
and  avoidance.  Pleadings  in  confession  and 
avoidance  must  give  color.  See  Color;  1 
East  212.  They  must  admit  the  material 
facts  of  the  opponent's  pleading,  either  ex- 
pressly in  terms ;  Dy.  171 6 ;  or  in  effect. 
They  must  conclude  with  a  verification;  1 
Saund.  103,  n.  For  the  form  of  statement, 
see  Steph.  PL  72,  79. 

Pleas  in  confession  and  avoidance  are  ei- 
ther in  justification  and  excuse,  which  go 
to  show  that  the  plaintiff  never  had  any 
right  of  action,  as,  for  example,  son  assault 
demesne,  or  in  discharge,  which  go  to  show 
that  his  right  has  been  released  by  some 
matter  subsequent 

CONFESSOR.  A  priest  of  some  Christian 
church  who  hears  confessions  of  their  sins 
by  members  of  his  church  and  undertakes 
to  give  them  absolution  of  their  sins.  The 
common  law  does  not  recognize  any  such  re- 
lation, at  least  so  as  to  exempt  or  prevent 
the  confessor  from  disclosing  such  communi- 
cations as  are  made  to  him  in  this  capacity, 
when  he  is  called  upon  as  a  witness.  See 
Confidential  Communications. 

CONFIDENCE.  This  word  is  considered 
peculiarly  appropriate  to  create  a  trust.  It 
is,  when  applied  to  the  subject  of  a  trust,  as 
nearly  a  synonym  as  the  English  language 


is  capable  of.  Trust  is  a  confidence  which 
one  man  reposes  in  another,  and  confidence 
is  a  trust.     Coates'  Appeal,  2  Pa.  133. 

CONFIDENTIAL  COMMUNICATIONS. 

Those  statements  with  regard  to  any  trans- 
action made  by  one  person  to  another  during 
the  continuance  of  some  relation  between 
them  which  calls  for  or  warrants  such  com- 
munications. 

At  law,  certain  classes  of  such  communi- 
cations are  held  not  to  be  proper  subjects 
of  inquiry  in  courts  of  justice,  and  the  per- 
sons receiving  tbem  are  excluded  from  dis- 
closing them  when  called  upon  as  witnesses, 
upon  grounds  of  public  policy. 

Secrets  of  state  and  communications  be- 
tween the  government  and  its  officers  are 
usually  privileged ;  Gray  v.  Pentland,  2  S. 
&  R.  (Pa.)  23;  Thompson  v.  R.  Co.,  22  N.  J. 
Eq.  Ill ;  5  H.  &  N.  538 ;  Totten  v.  U.  S.,  92 
U.  S.  107,  23  L.  Ed.  605.  So  also  the  con- 
sultations of  the  judges,  the  testimony  of 
arbitrators  in  certain  cases,  and  the  sources 
of  information  in  criminal  prosecutions ;  1 
Wharton,  Ev.  sec.  600;  Welcome  v.  Batchel- 
der,  23  Me.  85 ;  4  C.  &  P.  327 ;  Woodbury  v. 
Nortby,  3  Greenl.  (Me.)  85,  14  Am.  Dec.  214; 
Worthington  v.  Scribner,  109  Mass.  487,  12 
Am.  Rep.   736;   Stephen's  Dig.   Ev.  art  113. 

Of  this  character  are  all  communications 
made  between  husband  and  wife  in  all  cases 
in  which  the  interests  of  the  other  party  are 
involved;  Stein  v.  Bowman,  13  Pet.  (U.  S.) 
223,  10  L.  Ed.  129;  Drew  v.  Tarbell,  117 
Mass.  90;  Castello  v.  Castello,  41  Ga.  613; 
Corse  v.  Patterson,  6  Har.  &  J.  (Md.)  153; 
Warner  v.  Pub.  Co.,  132  N.  Y.  181,  30  N.  E. 
393;  French  v.  Wade,  35  Kan.  391,  11  Pac. 
138 ;  Higham  v.  Vanosdol,  101  Ind.  160.  Nor 
does  it  make  any  difference  which  party  is 
called  upon  as  a  witness;  Ry.  &  M.  352;  or 
when  the  relation  commenced ;  3  C.  &  P.  558 ; 
or  whether  it  has  terminated ;  Stein  v.  Bow- 
man, 13  Pet.  (U.  S.)  209,  10  L.  Ed.  129; 
Barnes  v.  Camack,  1  Barb.  (N.  Y.)  392; 
1  C.  &  P.  364;  Robb's  Appeal,  98  Pa.  501; 
Stanley  v.  Montgomery,  102  Ind.  102,  26  N. 
E.  213;  Crose  v.  Rutledge,  81  111.  266;  Lingo 
v.  State,  29  Ga.  470.  A  third  party  who 
overheard  such  a  conversation  may  testify 
as  to  it ;  Com.  v.  Griffin,  110  Mass.  181 ;  Gan- 
non v.  People,  127  111.  518,  21  N.  E.  525,  11 
Am.  St.  Rep.  147.  The  wife  may  be  exam- 
ined as  to  a  conversation  with  her  husband 
in  the  presence  of  a  third  party;  State  v. 
Center,  35  Vt  379;  Lyon  v.  Prouty,  154 
Mass.  4SS,  28  N.  E.  90S;  Fay  v.  Guynon,  131 
Mass.  31 ;  Floyd  v.  Miller,  61  Ind.  224 ;  Wes- 
terman  v.  Westerman,  25  Ohio  St.  500;  but 
not  if  the  third  person  failed  to  hear  or  paid 
no  attention  to  the  conversation;  Jacobs  v. 
Hesler,  113  Mass.  160. 

The  confidential  counsellor,  solicitor,  or  at- 
torney of  any  party  cannot  be  compelled  to 
disclose  papers  delivered  or  communications 
made  to  him,   or  letters  written  or  entries 


CONFIDENTIAL  COMMUNICATIONS     593      CONFIDENTIAL  C<  'M.MUNICATP  iNfi 


made  by  him,  in  that  capacity ;  4  B.  &  Ad. 
876;  Britton  v.  Lorenz,  45  N.  T.  57;  Orton 
v.  McCord,  33  Wis.  205;  Johnson  v.  Sullivan, 
23  Mo.  474;  Chirac  v.  Reinicker,  11  Wheat 
(U.  S.)  295,  6  L.  Ed.  474;  Sweet  v.  Owens, 
109  Mo.  1,  18  S.  W.  928;  Swaim  v.  Humph- 
reys, 42  111.  App.  370;  Andrews  v.  Slmms, 
33  Ark.  771;  Hollenback  v.  Todd,  119  111.  513, 
8  N.  E.  829;  Bigbee  v-  Dresser,  103  Mass. 
523;  Vogel  v.  Gruaz,  110  U.  S.  311,  4  Sup. 
Ct  12,  28  L.  Ed.  15S;  Snow  v.  Gould,  7!  Me. 
540,  43  Am.  Rep.  604  ;  '•'  Exch.  298;  nor  will 
he  be  permitted  to  make  such  communica- 
tions against  the  will  of  his  client;  4  Term 
750,  759;  12  J.  B.  Moo.  520;  Bank  of  Utica 
v.  Mersereau,  3  Barb.  Ch.  (N.  Y.)  52S,  49 
Am.  Dec.  189;  Anon.,  8  Mass.  370;  nor 
If  the  communication  is  made  in  the  pres- 
ence of  a  third  person;  Blount  v.  Kimpton, 
155  Mass.  378,  2'.)  X.  B.  590,  31  Am.  St.  Rep. 
554;  nor  will  the  client  be  compelled  to  dis- 
close such  communications;  Bigler  v.  R< 
43  Ind.  112;  DuttenholVr  v.  State.  34 
St.  91,  :;2  Am.  Rep.  362;  Hemenway  v.  Smith. 
28  Vt.  701;  not  even  when  the  client  takes 
the  witness  stand  on  his  own  behalf;  Bigler 
v.  Reyher,  43  Ind.  112;  Barker  v.  Kuhn,  38 
la.  395;  Duttenhofer  v.  State,  34  Ohio  St 
91.  32  Am.  Rep.  362;  contra.  Inhabitants  of 
Woburn  v.  Henshaw,  101  Mass.  193,  3  Am. 
Rep.  333. 

The  privilege  extends  to  all  matters  made 
the  subject  of  professional  intercourse,  with- 
out regard  to  the  pendency  of  legal  proceed- 
ings; 5  C.  &  P.  592;  Miller  v.  Weeks,  22  Pa. 
89;  Foster  v.  Hall,  12  Pick.  (Mass.)  89,  22 
Am.  Dec.  400;  Sargent  v.  Inhabitants  of 
Hampden,  38  Me.  581  ;  Wetherhee  v.  E/.ekiel, 
25  VI.  47;  Bacon  v.  Frisbie,  80  N.  Y.  394,  36 
Am.  Rep.  627;  Jones  v.  State,  65  Miss.  17!\  3 
South.  379;  Young  v.  State,  65  Ga.  525;  hut 
see  Hemenway  v.  Smith,  28  Vt.  701  ;  Thomp- 
son v.  Kilborne,  28  Vt.  750,  67  Am.  Dec.  742  : 
and  to  matters  discovered  by  the  counsellor, 
etc.,  in  consequence  of  this  relation;  5  Esp. 
52. 

Conversations  between  solicitor  or  counsel 
and  a  party,  relating  to  the  subjecl  matter 
of  a  suit,  are  privileged;  Montgomery  v. 
Perkins.  94  Fed  '-■'■:  but  evidence  of  a  con- 
tract between  an  attorney  and  client  for 
compensation,  or  the  as<i-ninent  of  an  in- 
terest in  the  judgment,  is  not  privileged : 
Strickland  v.  Mills.  7  1  S.  ( '.  16,  54  S.  E.  220, 
7  L.  R.  A.  (N.  S.)  426;  and  the  attorney  Is 
released  from  his  obligation  of  secrecy  so 
far  as  is  necessary  to  protect  his  interests: 
Keck  v.  Bode,  23  Oh.  C.  C.  413;  Mitchell  v. 
Bromberger,  2  Nev.  345,  90  Am.  Dec  550; 
Minard  v.  Stillman,  31  Or.  164,  49  Pac,  976, 
65  Am.  St.  Rep.  815;  Nave  v.  Baird,  12  Ind. 
318;  L.  R.  35  Ch.  Div.  722.  An  attorney  will 
be  compelled  to  disclose  the  name  and  resi- 
dence of  a  person  who  retains  him  as  coun- 
sel for  an  accused  person,  but  he  need  not 
disclose,  the  interest  of  such  person  in  the 
matter;  U.  S.  r.  Lee,  107  Fed.  702.  A  com- 
Bouv.— 38 


munication  to  a   counselor  in  the  cour 
his   employment   by    poisons   other  than  his 
client  is  not  privileged;  General  Electric  Co. 
v.  Jonathon  Clark  &  Sons  Co..  L  170; 

likewise  a  letter  written  by  an  attorney  to 
his  client  advising  him  of  the  terms  of  an 
injunction  granted  against  him:  Aaron  v. 
U.  S.,   155  Fed.  833,  84  C.  C.  A.  I 

The  doctrine  of  pri  iommunications 

does  not  applj  to  a  Bolicit  »r  of  ]  when 

he  is  not  an  attorney -a  t-law ;    Bi 
Smith,  49  Fed.  124. 

Communications    between   a    party    or    his 
legal   adviser  and  wita 

L.  R,  8  Eq.  522;  16  Id.  112;  hut  see  In  re 
Mellen.  18  N.  Y.  Supp.  515;  so  are  communi- 
cations between  parties  to  a  cause  touching 
the  preparation  of  evidence;  Hai 
1.72;  43  L.  J.  C.  P.  206;  but  see  6  B.  &  S. 
888;  3  II.  &  N.  S71.  Communications  be- 
tween  an  attorney  and  client  are  not  privi- 
leged where  the  latter  disclaims  the 
ence  of  such  relations. 

Interpreters;  4  Term  756 :  Jackson  v. 
French,  3  Wend.  (N.  T.)  337,  20  Am.  Dec. 
699;  In  re  Mellen.  IS  N.  Y.  Supp.  515;  Par- 
ker v.  Carter.  4  Munf.  <\  6  Am.  Dec. 
513;  Maas  v.  Bloch,  7  Ind.  202;  Andrews  v. 
Solomon,  1  Pet.  C.  I !. 
and  agents  to  collect  evidence;  2  Beav.  173; 

1  Phill.  Ch.  471.  687;  are  considered  as 
standing  in  the  same  relation  as  the  attor- 
ney; so,  also,  is  a  barrister's  clerk;  2  C.  & 
1'.   1  95;  5  id.  177;  5  M.  &   (J.  271  : 

Hall.  12  Pick,   i  Mass.)   9 
Jackson  v.  French.  ::  Wend.    I  N.   X 
Am.  Dec.  699;  Sibley  v.  Waffle,  16  N.  v. 
Landsberger  v.  Gorham,  5  Cal.  -I'd;  i 
a    student   at   law    in    an    attorney's    office: 
Barnes   v.  Harris.  7   Cush.    (Mass.)    576,   54 
Am.  Dec.  734.     Contra,  Pritchard  v.  Hender- 
son. 3  Pennewill  (Del.)   128,  50  Atl.  217. 

The    cases    in    which    communications    to 
counsel  have  been  held  not  to  be  privi 
may   he   classed   under   the  following   heads: 
When  the  communication  was  made  before 
the  attorney  was  employed  as  ml  h  :  J   Ventr. 
197;   see   Sargent  v.    Hampden,   38    Me 
Sharon   v.   Sharon,   7!'   CaL    636,   22   i'; 
131;  Althouse  v.  Wells,  40  Hun  (N.  T.)  336; 
Wilson  v.  Godlove,  :'!   Mo.  337;  after  the  at- 
torney's   employment    has    ceased:    4    Term 
431  :    Williams   v.    Benton,   12   La.  Ami.   91  : 
when  the  attorney  was  consulted  because  he 
was  an  attorney,  yet  was  not  acting  as  such: 
4    Term    7 •>". :    Alderman    V.    People,     1    Mich. 
414,  69  Am.  Dec  321;  Goltra  v.  Wolcott,  14 
ill.    89;    Branden    &    Nethers   v.   (lowing.    7 
Rich.    (S.   C.)     159  :    where  Ins  relal 
torney  was   the  ag   present 

at  the  taking  place  of  a  fact,  but  there  was 
nothing  in  the  circumstances  to  make  it 
amount   to  a  communication;  2  Ve 

2  Curt  E  ci  s'''' :  Patten  v.  Moor,  29  N.  H. 
163 :  when  the  matter  communicated  «;i<  not 
in  its  nature  private,  and  could  in  no 

be  termed  the  subject  of  a  confidential  com- 


CONFIDENTIAL  COMMUNICATIONS      594     CONFIDENTIAL,  COMMUNICATIONS 


munication ;  7  East  357 ;  Riggs  v.  Denuiston, 
3  Johns.  Cas.  (N.  Y.)  198,  2  Am.  Dec.  145; 
Lloyd  v.  Davis,  2  Ind.  App.  170,  28  N.  E. 
232;  when  it  was  intended  that  the  com- 
munications should  be  imparted  by  him  to 
others ;  Ferguson  v.  McBean,  91  Cal.  63,  27 
Pac.  518,  14  L.  R.  A.  05 ;  when  the  things 
disclosed  had  no  refei'ence  to  professional 
employment,  though  disclosed  while  the  re- 
lation of  attorney  and  client  subsisted; 
Peake  77 ;  when  the  attorney  made  himself  a 
subscribing  witness;  2  Curt.  Eccl.  866;  3 
Burr.  16S7 ;  when  he  is  a  party  to  the  trans- 
action;  Dudley  v.  Beck,  3  Wis.  274;  Story, 
Eq.  PI.  §  601 ;  when  he  was  directed  to  plead 
the  facts  to  which  he  is  called  to  testify ; 
Cormier  v.  Richard,  7  Mart.  La.  (N.  S.)  179; 
where  an  attorney  is  employed  only  to  draw 
up  a  deed  and  bill  of  sale  to  be  executed  by 
another  to  such  person,  he  may  testify  as  to 
what  passed  between  them  and  himself; 
O'Neill  v.  Murry,  6  Dak.  107,  50  N.  W.  619. 

The  attorney  may  be  called  upon  to  prove 
his  client's  handwriting;  Brown  v.  Jewett, 
120  Mass.  215 ;  L.  R.  8  Eq.  575 ;  L.  R.  5  Ch. 
Ap.  703;  Glenn  v.  Liggett,  47  Fed.  472;  to 
identify  his  client;  2  D.  &  R.  347;  though 
not  to  disclose  his  client's  address ;  L.  R.  15 
Eq.  257 ;  unless  the  client  be  a  ward  of  court ; 
L.  R.  8  Eq.  575;  or  a  bankrupt;  L.  R.  5  Ch. 
703.  He  may  be  required  to  testify  as  to 
whether  he  was  retained  by  his  client,  and 
in  what  capacity;  Whart.  Ev.  589;  Heaton 
v.  Findlay,  12  Pa.  304;  but  see  Chirac  v. 
Reinicker,  11  Wheat.  (U.  S.)  280,  6  L.  Ed. 
474. 

After  testator's  death  on  the  question 
whether  an  instrument  present  for  probate 
was  his  will,  the  attorney  may  testify  as  to 
directions  given  him  in  its  preparation  by 
testator;  Doherty  v.  O'Callaghan,  157  Mass. 
90,  31  N.  E.  726,  17  L.  R.  A.  188,  34  Am.  St. 
Rep.  258.  He  may  testify  as  to  what  was 
said  in  their  presence  by  a  third  person 
brought  by  his  client ;  Tyler  v.  Hall,  106  Mo. 
313,  17  S.  W.  319,  27  Am.  St.  Rep.  337. 

The  rule  of  privilege  does  not  extend  to 
confessions  made  to  clergymen;  1  Greenl. 
Ev.  247 ;  4  Term  753 ;  2  Skimm.  404 ;  Com.  v. 
Drake,  15  Mass.  161;  1  McNally  253;  State 
v.  Bostick,  4  Harr.  (Del.)  563;  22  L.  R.  Ir. 
158 ;  see  33  Arn.  L.  Rev.  544 ;  though  judges 
have  been  unwilling  to  enforce  a  disclosure; 
3  C.  &  P.  519 ;  6  Cox,  C.  C.  219 ;  and  see  Tot- 
ten  v.  U.  S.,  92  U.  S.  105,  23  L.  Ed.  605 ;  Sut- 
ton v.  Johnson,  62  111.  209;  Com.  v.  Call,  21 
Pick.  (Mass.)  515,  32  Am.  Dec.  284;  and  the 
rule  is  otherwise  by  statute  in  some  states ; 
nor  to  physicians;  11  Hargr.  St.  Tr.  243 ;  20 
How.  St.  Tr.  643 ;  1  C.  &  P.  97 ;  L.  R.  6  C. 
P.  252;  Campau  v.  North,  39  Mich.  606,  33 
Am.  Rep.  433 ;  L.  R.  9  Ex.  398 ;  but  in  some 
states  this  has  been  changed  by  statute; 
Whart.  Ev.  §  606;  Masonic  Mut.  Ben.  Ass'n 
v.  Beck,  77  Ind.  203,  40  Am.  Rep.  295;  Con- 
necticut Mut.  Life  Ins.  Co.  v.  Trust  Co.,  112 
U.  S.  250,  5  Sup.  Ct.  119,  28  L.  Ed.  708 ;  Cor- 


bett  v.  R.  Co.,  26  Mo.  App.  621 ;  Kansas  City, 
Ft.  S.  &  M.  R.  Co.  v.  Murray,  55  Kan.  336, 
40  Pac.  646;  In  re  Flint,  100  Cal.  391,  34  Pac. 
863;  Johnson  v.  Johnson,  14  Wend.  (N.  Y.) 
637;  and  information  acquired  by  the  physi- 
cians of  a  railroad  company  in  treating  an 
injured  person  against  her  protest  is  privi- 
leged ;  Union  Pac.  R.  Co.  v.  Thomas,  152 
Fed.  365,  81  C.  C.  A.  491 ;  but  he  may  testify 
from  knowledge  and  information  acquired 
while  not  treating  a  patient  professionally; 
Fisher  v.  Fisher,  129  N.  Y.  654,  29  N.  E.  951. 

Privilege  does  not  extend  to  confidential 
friends;  4  Term  758;  Hoffman  v.  Smith,  1 
Cai.  (N.  Y.)  157;  Brayton  v.  Chase,  3  Wis. 
456;  Goltra  v.  Wolcott,  14  111.  89;  L..R.  18 
Eq.  649;  clerks;  3  Campb.  337;  1  C.  &  P. 
337 ;  bankers;  2  C.  &  P.  325 ;  a  banker  is  not 
privileged  to  withhold  the  identity  of  a  per- 
son depositing  securities  in  his  bank ;  Inter- 
state Commerce  Commission  v.  Harrimah, 
157  Fed.  432;  stewards;  2  Atk.  524;  11  Price 
455;  nor  servants;  Isham  v.  State,  6  How. 
(Miss.)   35. 

Where,  at  the  trial,  the  privilege  of  a 
physician  is  waived,  such  waiver  extends  to 
subsequent  trials ;  Elliott  v.  Kansas  City, 
198  Mo.  593,  96  S.  W.  1023,  6  L.  R.  A.  (N.  S.) 
1082,  8  Ann.  Cas.  653;  McKinney  v.  R.  Co., 
104  N.  Y.  352,  10  N.  E.  544 ;  Green  v.  Crapo, 
181  Mass.  55,  62  N.  E.  956;  contra,  Burgess 
v.  Drug  Co.,  114  la.  275,  86  N.  W.  307,  54 
L.  R.  A.  364,  89  Am.  St.  Rep.  359;  Briesen- 
meister  v.  Supreme  Lodge,  81  Mich.  525,  45 
N.  W.  977 ;  Grattan  v.  Ins.  Co.,  92  N.  Y.  274, 
44  Am.  Rep.  372  (referred  to  in  brief  of  coun- 
sel, but  not  cited  in  the  opinion  of  the  court, 
in  McKinney  v.  R.  Co.,  104  N.  Y.  352,  10  N. 
E.  544)  ;  but  a  waiver  by  the  plaintiff  as  to 
the  testimony  of  his  own  physicians  does 
not  operate  as  a  waiver  of  the  testimony  of 
a  physician  called  by  the  defendant  who  had 
attended  the  plaintiff  for  tne  same  injuries 
but  at  a  different  time ;  Metropolitan  St.  Ry. 
Co.  v.  Jacobi,  112  Fed.  924,  50  C.  C.  A.  619. 

A  trial  judge  may  properly  refuse  to 
charge  the  jury  that  they  might  draw  infer- 
ences from  a  party's  refusal  to  waive  the 
privilege  with  respect  to  his  physician's  tes- 
timony ;  Pennsylvania  R.  Co.  v.  Durkee,  147 
Fed.  99,  78  C.  C.  A.  107,  8  Ann.  Cas.  790; 
Brackney  v.  Fogle,  156  Ind.  535,  60  N.  E. 
303 ;  Wigm.  Ev.  §  2386 ;  contra,  Deutschmann 
v.  R.  Co.,  87  App.  Div.  503,  84  N.  Y.  Supp. 
887. 

See  Commercial  Agency  ;  Privileged  Com- 
munications ;  Libel. 

C0NFIRMATI0  (Lat.  confirmare) .  The 
conveyance  of  an  estate,  or  the  communica- 
tion of  a  right  that  one  hath  in  or  unto  lands 
or  tenements,  to  another  that  hath  the  pos- 
session thereof,  or  some  other  estate  therein, 
whereby  a  voidable  estate  is  made  sure  and 
unavoidable,  or  whereby  a  particular  estate 
is  increased  or  enlarged.  Shep.  Touchst.  311; 
2  Bla.  Com.  325. 


CONFIRM  ATIO 


595 


CONFISCATE 


Confirmatio  crescent  tends  and  serves  to 
increase  or  enlarge  a  rightful  estate,  and  so 
to  pass  an  Interest 

Confirmatio  ditninuens  tends  or  serves  to 
diminish  and  abridge  the  services  wherehy 
the  tenant  holds. 

Confirmatio  pcrficiens  tends  and  serves  to 
confirm  and  make  good  a  wrongful  and  de- 
feasible estate,  by  adding  the  right  to  the 
-sion  or  defeasible  seisin,  or  to  make  a 
conditional  estate  absolute,  by  discharging 
the  condition. 

CONFIRMATIO  CHARTARUM  (Eat.  con- 
firmation of  the  charters).  A  statute 
ed  in  the  25  Edw.  I.,  whereby  the  Great 
Charter  is  declared  to  he  allowed  as  the  com- 
mon law;  all  judgments  contrary  to  it  are 
declared  void ;  copies  of  it  are  ordered  to  be 
sent  to  all  cathedral-churches  and  read  twice 
a  year  to  the  people;  and  sentence  of  ex- 
communication is  directed  to  be  as  constantly 
denounced  against  all  those  that,  by  word  or 
deed  or  counsel,  act  contrary  thereto  or  in 
any  degree  infringe  it.    1  Bla.  Com.  128. 

CONFIRMATIO  PERFICIENS.  A  con- 
tinuation which  makes  valid  a  wrongful  and 
defeasible  title,  or  makes  a  conditional  es- 
tate, absolute.     Shep,  Touchst.  311 ;    Black. 

CONFIRMATION.  A  contract  by  which 
that  which  was  voidable  is  made  firm  and  un- 
avoidable. 

A  species  of  conveyance. 

Where  a  party,  acting  for  himself  or  by 
a  previously  authorized  agent,  has  attempted 
to  enter  into  a  contract,  but  has  done  so  in 
an  informal  or  invalid  manner,  he  confirms 
the  act  and  thus  renders  it  valid,  in  which 
case  it  will  take  effect  as  between  the  par- 
ties from  the  original  making.  See  2  Bou- 
vier,  Inst.  nn.  2067-2Oi;'.t. 

To  make  a  valid  confirmation,  the  party 
must  be  apprized  of  his  rights;  and  where 
there  has  been  a  fraud  in  the  transaction 
he  must  be  aware  of  it  and  intend  to  con- 
firm his  contract.  See  1  Ball  &  B.  353;  2 
Sch.  &  L.  48G;  12  Ves.  Ch.  373;  1  id.  215;  1 
Atk.  301. 

A  confirmation  does  not  strengthen  a  void 
estate.  For  confirmation  may  make  a  void- 
able or  defeasible  estate  good,  but  cannot 
operate  on  an  estate  void  in  law;  Co.  Litt. 
295.  The  canon  law  agrees  with  this  rule ; 
and  hence  the  maxim,  qui  confirmat  nihil 
dat.  Toullier,  Dr.  Civ.  Fr.  1.  3,  t.  3,  c.  6,  n. 
476.  See  Viner,  Abr. ;  Comyns,  Dig.;  Aylilte, 
Pand.  *38G;  1  Chit.  Pr.  315;  Blessing  v. 
House's  Lessee,  3  Gill  &  J.  (Md.)  290;  Love's 
Lessee  v.  Shields,  3  \erg.  (Teun.)  405;  9  Co. 
142  a;  Ratification. 

CONFIRMEE.  He  to  whom  a  confirma- 
tion is  made. 

CONFIRMOR.  He  who  makes  a  confirma- 
tion to  another. 

CONFISCARE.    To  confiscate. 


CONFISCATE.    To  appropriate  to  the  use 
of  the  st.i 

Especially  used  of  the  goods  and  property  of  alien 
enemies  found  in  a  state  lu  time  of  war.    1  K 
et  seq.     Bona  confiscata  and   forisfacta  are  said   to 
be  the  same  (1  Bla.  Con-  to  the 

individual  Is  the  same  whether  the 
feited  or  confiscated  ;    I  n  In- 

dividual forfeits,  a  state  confiscate''-,  good;  or  other 
property.     Used   also   as   an    adjec:. 
Ill  a.  Com.  299. 

In   International  Law.     It  is  a  rule 

that  the  property  of  the  subjects  ol 
found  in  the  country  may  be  appropriated  by 
the  government  without  notice,  unless  there 
be  a  treaty  to  the  contrary;  Hall,  Int.  L. 
:;;>7;  The  Emulous.  1  GalL  .".;::.  Fed 
4,479;  Ware  v.  Ilylton,  3  DalL  (U.  S.)  199, 
1  1..  Ed.  568.  It  has  been  frequently  provid- 
ed by  treaty  that  foreign  subjects  should  be 
permitted  to  remain  and  continue  their  busi- 
ness, notwithstanding  a  rupture  between  the 
governments,  so  long  as  they  conducted  them- 
selves innocently:  and  when  there  was  no 
such  treaty,  such  a  liberal  permission  has 
been  announced  in  the  very  declaration  of 
war.  Vattel,  1.  3,  c.  4,  §  63.  Sir  M 
Foster  (Discourses  on  High  Treason,  pp. 
185  6)  mentions  several  instances  of  such 
declarations  by  the  king  of  Great  Britain; 
and  he  says  that  alien  enemies  were  thereby 
enabled  to  acquire  personal  chattels  and  to 
maintain  actions  for  the  recovery  of  their 
personal  rights  in  as  full  a  manner  as  alien 
friends;   1  Kent  57. 

In  the  United  States,  the  broad  principle 
has  been  laid  down  "that  war  gives  to  the 
sovereign  full  right  to  take  the  persons  and 
confiscate  the  property  of  the  enemy,  wher- 
ever found.  The  mitigations  of  this  rigid 
rule  which  the  policy  of  modern  times  has 
introduced  into  practice  will  more  or  less 
affect  the  exercise  of  this  right,  but  cannot 
impair  the  right  itself:-'  Brown  v.  I',  s..  8 
Cra.  (U.  S.)  122,  3  L.  Ed.  504.  Commercial 
nations  have  always  considerable  property  in 
the  possession  of  their  neighbors  :  and  when 
war  breaks  out,  the  question  what  shall  be 
done  with  enemies'  property  found  in  the 
country  is  one  rather  of  policy  than  of  law, 
and  is  properly  addressed  to  the  considera- 
tion of  the  legislature,  and  not  to  courts  of 
law.  The  strict  right  of  confiscation  exists 
in  congress;  and  without  a  legislative  act  au- 
thorizing the  confiscation  of  enemies'  prop- 
erty, it  cannot  be  condemned;  8  Cra.  (U. 
S.)  128,  3  L.  Ed.  504. 

Notwithstanding  this  positive  statement  of 
the  law,  private  property  of  enemy  subjects 
Waa  n. 'i  confiscated  during  the  wars  of  the 
L9th  century,  and  it  may  safely  be  said  that 
an  Internationa]  custom  prohibiting  such 
confiscation  has  grown  up  having  nearly  the 
force  of  law.  An  exception  is  to  be  found  in 
the  right  of  a  belligerent  to  seize  and  make 
use  of  such  private  property  of  enemy  sub- 
jects as  may  be  of  use  in  the  conduct  of  the 
war,  upon  payment  of  proper  indemnity.    On 


CONFISCATE 


596 


CONFISCATE 


the  other  hand,  public  property,  such  as  pro- 
visions, ammunition,  rolling  stock  of  state 
railroads,  realizable  securities,  funds,  etc., 
of  one  belligerent  in  the  territory  of  the  oth- 
er, is  subject  to  seizure.  See  IV  H.  C.  Art 
53. 

The  claim  of  a  right  to  confiscate  debts 
contracted  by  individuals  in  time  of  peace, 
and  which  remain  due  to  subjects  of  the 
enemy  in  time  of  war,  rests  upon  much  the 
same  principle  as  that  concerning  the  ene- 
my's tangible  property  found  in  the  country 
at  the  commencement  of  the  war.  But  it 
is  the  universal  practice  to  forbear  to  seize 
and  confiscate  debts  and  credits.     1  Kent  64. 

The  right  of  confiscation  exists  as  fully  in 
case  of  a  civil  war  as  it  does  when  the  war 
is  foreign,  and  rebels  in  arms  against  the 
lawful  government,  or  persons  inhabiting  the 
territory  exclusively  within  the  control  of  the 
rebel  belligerents,  may  be  treated  as  public 
enemies.  So  may  adherents,  or  aiders  and 
abettors  of  such  a  belligerent,  though  not 
resident  in  such  enemy's  territory;  Miller  v. 
U.  S.,  11  Wall.  (U.  S.)  2G9,  20  L.  Ed.  135. 
Proceedings  under  the  Confiscation  Act  of 
July  17,  18G2,  were  justified  as  an  exercise 
of  belligerent  rights  against  a  public  enemy, 
but  were  not,  in  their  nature,  a  punishment 
for  treason.  Therefore,  confiscation  being  a 
proceeding  distinct  from,  and  independent  of, 
the  treasonable  guilt  of  the  owner  of  the 
property  confiscated,  pardon  for  treason  will 
not  restore  rights  to  property  previously  con- 
demned and  sold  in  the  exercise  of  belliger- 
ent rights  as  against  a  purchaser  in  good 
faith  and  for  value ;  Semmes  v.  U.  S.,  91  U. 
S.  21,  23  L.  Ed.  193. 

A  suit  in  confiscation  Is  an  action  of  en- 
tirely different  nature  from  a  proceeding  in 
prize.  Confiscation  is  the  act  of  the  sover- 
eign against  a  rebellious  subject  Condemna- 
tion as  prize  is  the  act  of  a  belligerent 
against  another  belligerent  or  against  an  of- 
fending neutral.  Confiscation  may  be  effect- 
ed by  such  means,  either  summary  or  arbi- 
trary, as  the  sovereign  expressing  his  will 
through  lawful  channels,  may  please  to  adopt. 
Condemnation  as'  prize  can  only  be  made  in 
accordance  with  principles  of  law  recognized 
in  the  common  jurisprudence  of  the  world. 
Both  are  proceedings  in  rem,  but  confiscation 
recognizes  the  title  of  the  original  owner  to 
the  property  which  is  to  be  forfeited,  while 
in  prize  the  tenure  of  the  property  seized  is 
qualified,  provisional  and  destitute  of  ab- 
solute ownership ;  The  Peterhoff,  Blatchf. 
Pr.  Cas.  620,  Fed.  Cas.  No.  11,025.  To  con- 
fiscate property  seized  upon  land,  resort 
must  be  had  to  the  common-law  side  of  the 
court;  The  Confiscation  Cases,  20  Wall.  (U. 
S.)  110,  22  L.  Ed.  320;  prize  proceedings  are 
always  in  admiralty;  Winchester  v.  U.  S.,  14 
Ct  Cls.  48. 

See,  generally,  Chitty,  Law  of  Nations,  c. 
3;  Marten,  Law  of  Nat.  lib.  8,  c.  3,  s.  9 ; 
Burlamaqui,  Pol.  Law,  part  4,  c.  7;    Vattel, 


liv.  3,  c.  4,   §   63;    Twiss,   Law  of  Nations; 
Wbeaton;   Hall,  International  Law. 

CONFITENS  REUS.  An  accused  person 
who  admits  his  guilt.    Wharton. 

CONFLICT  OF  LAWS.  A  contrariety  or 
opposition  in  the  laws  of  states  or  countries 
in  cases  where  the  rights  of  the  parties,  from 
their  relations  to  each  other  or  to  the  sub- 
ject-matter in  dispute,  are  liable  to  be  affect- 
ed by  the  laws  of  both  jurisdictions. 

As  a  term  of  art,  it  also  includes  the  deciding 
which  law  is  in  such  cases  to  have  superiority.  It 
also  includes  many  cases  where  there  is  no  opposi- 
tion between  two  systems  of  law,  but  where  the 
question  is  how  much  force  may  be  allowed  to  a 
foreign  law  with  reference  to  which  an  act  has  been 
done,  either  directly  or  by  legal  implication,  in  the 
absence  of  any  domestic  law  exclusively  applicable 
to  the  case. 

As  to  the  most  suitable  term  to  apply  to 
this  branch  of  the  law,  see  Private  Interna- 
tional Law. 

Among  the  leading  canons  on  the  sub- 
ject are  these:  the  laws  of  every  state  af- 
fect and  bind  directly  all  property,  real  or 
personal,  situated  within  its  territory,  all 
contracts  made  and  acts  done  and  all  per- 
sons resident  within  its  jurisdiction,  and  are 
supreme  within  its  own  limits  by  virtue  of 
its  sovereignty ;  Milne  v.  Moreton,  6  Binn. 
(Pa.)  361,  6  Am.  Dec.  466;  Green  v.  Van 
Buskirk,  7  Wall.  (U.  S.)  151,  19  L.  Ed.  109; 
Minor  v.  Cardwell,  37  Mo.  354,  90  Am  Dec. 
390;  Cowp.  208 ;  4  T.  R.  192.  Ambassadors 
and  other  public  ministers  while  in  the  state 
to  which  they  are  sent,  and  members  of  an 
army  marching  through  or  stationed  in  a 
friendly  state,  are  not  subject  to  this  rule; 
Crawford  v.  Wilson,  4  Barb.  (N.  Y.)  522; 
U.  S.  v.  Lafontaine,  4  Cra.  C.  C.  173,  Fed. 
Cas.  No.  15,550. 

Possessing  exclusive  authority,  with  the 
above  qualification,  a  state  may  regulate  the 
manner  and  circumstances  under  which  prop- 
erty, whether  real  or  personal,  in  possession 
or  in  action,  within  it,  shall  be  held,  trans- 
mitted, or  transferred,  by  sale,  barter,  or 
bequest,  or  recovered  or  enforced ;  the  con- 
dition, capacity,  and  ■  state  of  all  persons 
within  it ;  the  validity  of  contracts  and  other 
acts  done  there;  the  resulting  rights  and 
duties  growing  out  of  these  contracts  and 
acts;  and  the  remedies  and  modes  of  admin- 
istering justice  in  all  cases;  Story,  Confl. 
Laws  §  18 ;   Vattel,  b.  2,  c.  7,  §§  84,  85. 

Whatever  force  and  obligation  the  laws 
of  one  country  have  in  another  depends 
upon  the  laws  and  municipal  regulations  of 
the  latter ;  that  is  to  say,  upon  its  own  prop- 
er jurisprudence  and  polity,  and  upon  its 
own  express  or  tacit  consent ;  Huberus,  lib. 
1,  t.  3,  §  2. 

The  power  of  determining  whether,  or  how 
far,  or  with  what  modification,  or  upon  what 
conditions,  the  laws  of  one  state  or  any 
rights  dependent  upon  them  shall  be  recog- 
nized in  another,  is  a  legislative  one.  The 
comity  involved  is  a  comity  of  the  states,  and 


CONFLICT  OF  LAWS 


5'J7 


CONFLICT  OF  LAWS 


not  of  the  courts,  and  the  judiciary  must  be 
guided  iu  deciding  the  question  by  the  prin- 
ciple and  policy  adopted  by  the  legislature; 
Thompson  v.  Waters,  25  Mich.  214,  12  Am. 
Rep.  243;  Slack  v.  Cedar  Co..  151  Mich.  21, 
114  N.  W.  870,  1G  L  R.  A.  (N.  S.)  616,  14 
Ann.  Cas.  112.  The  contract  in  the  latter 
case  was  made  In  Michigan,  in  which  state 
an  Illinois  corporation  had  been  admitted  to 
do  business.  An  Illinois  statin."  provided 
that  no  corporation  should  interpose  the  de- 
fense of  usury  in  any  action.  It  was  con- 
tended that  this  disability  imposed  in  the 
state  creating  the  corporation  followed  it 
and  attached  to  its  charter  in  Michigan.  But 
the  court  held  that  the  restriction  in  Illinois 
would  not  follow  it  Into  Michigan  so  as  to 
prevent  it  from  taking  advantage  of  the 
local  statute  against  usury. 

When  a  statute  or  the  unwritten  or  com- 
mon law  of  the  country  forbids  the  r< 
tion  of  the  foreign  law,  the  latter  is  of  no 
force  whatever.  When  both  are  silent,  then 
the  question  arises,  which  of  the  conflicting 
laws  is  to  have  effect  Each  sovereignty 
must  determine  for  itself  whether  it  will  en- 
force a  foreign  law;  Finney  v.  Guy,  106  Wis. 
256,  82  X.  W.  595,  !'•'  L.  EL  A.  486;  Hunt  v. 
Whewell.  1Z2  Wis.  33,  99  X.  W.  ."'.)'.);  Fox  v. 
raph-Cable  Co.,  138  Wis.  648,  120  X.  W. 
:::!!>.  28  L.  R.  A.  (X.  S.)  490.  It  is  a  principle 
universally  recognized  that  the  revenue  laws 
of  one  country  have  no  force  in  another. 
The  exemption  laws  and  laws  relating  to 
married  women,  as  well  as  the  local  statute 
of  frauds,  and  statutes  authorizing  distress 
and  sale  for  non-payment  of  rent,  are  not 
recognized  in  another  jurisdiction  under  the 
principles  of  comity.  Morgan  v.  Xeville,  74 
Pa.  52;  Waldron  v.  Ritchings,  3  Daly  (N. 
Y.)  2SS;  Siegel  v.  Robinson,  56  Pa.  19,  93 
Am.  Dec.  775;  Ross  v.  Wigg.  34  Hun  (X.  Y.) 
192;  Ludlow  v.  Van  Rensselaer,  1  Johns.  (N. 
Y.)  95. 

The  statutes  of  one  state  giving  a  right  of 
action  to  enforce  a  penalty  have  no  force  in 
another;  Huntington  v.  Attrill.  146  U.  S. 
657,  13  Sup.  Ct.  224,  36  L.  Ed.  1123 ;  Russell 
v.  R.  Co.,  113  Cal.  258.  45  Pac.  323.  34  L.  R. 
A.  747;  Ferguson  v.  Sherman,  116  Cal.  169, 
47  Pac  1D2;;.  .",7  L.  P.  A.  (122;  Commercial 
Xat.  Bank  v.  Kirk,  222  Pa.  567,  71  Atl.  1085, 
12S  Am.  St.  Rep.  823. 

So  rights  of  action  arising  under  foreign 
bankrupt,  insolvent,  or  assignment  laws  are 
not  recognized  by  a  slate  when  prejudicial  to 
the  interests  of  its  own  citizens:  Warner  v. 
Jaffray,  96  N.  V.  248,  is  Am.  Rep.  t;Ki;  In  re 
Waite.  9!)  X.  Y.  44:;.  2  X.  B.  440;  Parth  v. 
Backus,  140  N.  Y.  230,  35  X.  E.  425,  23  L.  R. 
A.  47,  37  Am.  St.  Rep.  545;  Giman  v.  Lock- 
wood,  4  Wall.  (U.  S.)  409,  18  L.  Ed.  432. 

A  remedy  special  to  a  particular  foreign 
state  is  not,  by  any  principle  of  comity  en- 
forceable elsewhere  and  must  be  applied 
within  the  jurisdiction  of  the  domicile  of  the 
corporation ;  Fowler  v.  Lamson,  146  111.  472, 


34  X.  E.  932,  37  Am.  St.  lb',,.  163;    Young  v. 
Farwell,  139  111.  326,  28  N.  I  nttte  v. 

Bank,   161  111.  497,  44  X.   F.  984,  34  F.  P.  A. 
750;  National  Bank  of  Auburn  v.  Dillingham, 
117  V  V.  603,  -12  X.  F.  338,  49  Ami. 
G92;    Marshall  v.   Sherman,   148   X.    V.   U,  42 
X.    F.   419,  34  L.  R.  A.  757,  51   Am.   St.   F 
1 15 ! . 

Generally,  force   and  effect   will   I  i 
by  any  state  to  foreign  laws  in  cases  wh< 
from   the   transactions   of   the   pan 
arc  applicable,  unless  they  affect  Injuriou 
her  own  citizens,  violate  her  express  enact- 
ments, or  are  contra  bonos  mores. 

The  broad  rule  as  to  contracts  is  th 
stated  by  Wharton  (Confi.  Laws  §  401): 
"Obligations,  in  respect  to  the  mode  of  their 
inization,  are  subject  to  the  rule  locus 
regit  actum;  in  respect  to  their  interpreta- 
tion, to  tile  lex  loci  contractus;  in  respect  to 
the  mode  of  their  performance,  to  the  law 
of  the  place  of  tin  b  inance.     Put  the 

lex  fori  determines  when  and  how  such  laws, 
when  foreign,  are  to  be  adopted,  and  in  all 
3    not   specified    abo  lies    the    ap- 

plicatory  law."  This  rule  is  quoted  by  Hunt, 
J.,  in  Scudder  v.  Bank,  91  I'.  S.  411,  23  L. 
Ed.  245.  In  a  later  part  of  his  opinion,  in 
the  same  case,  he  says:  "Matters  bear: 
upon  the  execution,  the  interpretation,  ami 
the  valiuity  of  a  contract  are  determined  by 
the  law  of  the  place  where  the  contract  is 
made.  Mailers  connected  with  its  perform- 
ance are  regulated  by  the  law  |  -  at 
the  place  of  performance.  Matters  respe 
Ing  the  remedy,  such  as  the  I  >f  suits, 
admissibility  of  evidence,  statutes  of  limita- 
tions, depend  upon  the  law  of  the  pi  a  ;e 
where  the  suit  is  brought.  A  careful  con- 
sideration of  the  decisions  of  this  country 
and  of  England  will  sustain  I 
cited  in  Milliken  v.  Pratt.  125  M^s.  ;;7;.  28 
Am.  Re] i.  211.  which  is  in  turn  cited  in  Frit- 
chard  v.  Norton,  106  U.  S.  121.  1  Sup.  Ct. 
102.  27  L.  Ed.  101.  where,  in  a  suit  on  a  bond 
executed  in  New  York  to  Indemnify  the 
plaintiff's  intestate  as  surety  in  an  appeal 
bond  in  a  suit  in  Louisiana,  the  court  <  •  I 
the  "Seat  of  the  obligation"  and  held  the  law 
applicable  to  be  the  lea  loci  solutionis  which 
was  the  law  of  Louisiana;  loci  con- 
tractus was  said  to  be  a  confusing  phrase.  ' 
because  it  is  in  reality  the  law  not  of  the 
place  of  execution  hut  of  the  seat  of  the  ob- 
ligation, and  that  might  be  either  the  pla 
of  execution  or  the  place  of  performance. 

Mr.  Wharton  expressed  the  rule  in  the  fol- 
lowing terms,  in  the  second  edition  (1881  I 
his  Confl.  Faws  $  401  :  "A  contract,  so  far  as 
concerns  its  formal  making,  is  to  he  deter- 
mined by  the  place  where  it  is  solemnized, 
the  lex  situs  of  property  disposed  of 
otherwise  requires;  so  far  as  concerns  its 
Interpretation,  by  the  law  of  the  place  where 
its  terms  are  settled,  unless  the  parties  had 
the  usages  of  another  place  in  view;  so  far 
as  concerns  the  remedy,  by  the  law  of  the 


CONFLICT  OF  LAWS 


59S 


CONFLICT  OF  LAWS 


place  of  suit ;  and  so  far  as  concerns  its  per- 
formance, by  the  law  of  the  place  of  perform- 
ance." 

The  criterion  by  which  to  ascertain  wheth- 
er a  particular  inquiry  relates  to  the  sub- 
stance of  the  contract  or  the  remedy  merely 
is  said  to  be :  Suppose  the  legislature  of  the 
locus  contractus  to  enact  the  law  of  the 
forum,  making  it  applicable  to  the  existing 
contract.  If  the  result  is  that  the  obligation 
of  the  contract  is  eitheij  increased  or  im- 
paired thereby,  then  the  point  to  which  the 
law  of  the  forum  relates  is  part  of  the  obliga- 
tion or  substance  of  the  contract  and  is  not 
merely  a  matter  of  remedy,  and  the  lex  loci, 
not  the  lex  fori,  should  control.  If,  on  the 
other  hand,  the  result  is  that  the  obligation 
of  the  contract  is  not  at  all  affected,  being 
neither  increased  nor  diminished,  then  the 
inquiry  relates  to  a  matter  of  remedy  only, 
and  the  lex  fori  should  govern.  16  Harv.  L. 
Rev.  262. 

A  contract  (to  pay  money)  was  made  in 
Dakota  by  a  married  woman  and  was  pay- 
able there.  The  Dakota  law  permitted  her 
to  contract  and  to  sue,  and  be  sued  as  though 
she  were  unmarried.  She  owned  land  in 
Missouri  which  the  Dakota  creditor  sought 
to  attach.  By  the  law  of  Missouri  (lexi  fori) 
a  married  woman  (for  purposes  of  this  case) 
was  competent  to  be  sued  personally,  but  her 
property  could  not  be  attached.  The  ques- 
tion was  whether  the  particular  remedy  of 
attachment  related  to  the  obligation  of  the 
contract  (to  be  governed  by  Dakota  law)  or 
to  the  remedy  merely,  in  which  case  the  law 
of  Missouri  should  control.  By  a  divided 
court  it  was  held  that  the  Missouri  law 
should  control;  Ruhe  v.  Buck,  124  Mo.  178, 
27  S.  W.  412,  25  L.  R.  A.  178,  46  Am.  St.  Rep. 
439. 

Where  an  action  was  brought  in  Massachu- 
setts upon  a  contract  made  in  New  York  to 
convey  land  situated  in  Massachusetts,  it 
was  held  that  the  measure  of  damages  for 
the  breach  of  contract  was  part  of  the  ob- 
ligation of  the  contract  to  be  determined  by 
New  York  law,  not  a  mere  matter  of  remedy 
to  be  controlled  by  the  lex  fori;  Atwood  v. 
Walker,  179  Mass.  514,  61  N.  E.  58. 

Prof.  Beale    (23  Harv.  L.  Rev.)   considers 
\  very   fully   the  laws  governing  the  validity 
of   contracts   and   reaches   substantially   the 
following  results   (here  summarized  by  per- 
mission) : 

Story  states  as  a  general  principle  that 
the  law  of  the  place  of  making  governs,  but 
there  is  an  exception  where  the  contract  is 
to  be  elsewhere  performed,  and  hence  the  law 
of  the  place  of  performance  governs.  The 
rule  that  the  intention  of  the  parties  shall 
govern  may  be  directly  traced  to  the  dictum 
of  Lord  Mansfield  in  Robinson  v.  Bland,  2 
Burr.  1077,  and  was  derived  by  him  from 
the  doctrines  of  the  Civil  Law.  The  rule 
that  the  law  of  the  place  of  performance  gov- 
erns may  be  traced  to  the  statement  of  Judge 


Story  in  his  Conflict  of  Laws  §  280,  often 
repeated  verbatim  in  the  cases ;  and  it  was 
on  his  part  a  restatement  of  his  opinion  in 
Van  Reimsdyk  v.  Kane,  1  Gall.  371,  375,  Fed. 
Cas.  No.  16,871.  The  present  tendency 
greatly  stimulated  by  the  late  English  and 
federal  eases,  is  toward  the  adoption  of  the 
law  intended  by  the  "parties.  Though  the 
greater  number  of  states  still  profess  ad- 
herence to  Judge  Story's  rule,  it  is  being 
superseded  by  the  other  rule.  In  enumerat- 
ing the  states  which  accept  one  or  the  other 
of  the  principal  rules,  it  must  be  pointed  out 
that  in  several  the  question  appears  not  to 
have  arisen  ;  in  others,  the  decisions  or  dicta 
are  not  sufficiently  clear  to  justify  including 
the  state  in  either  list. 

Cases  adopting  the  law  of  the  place  of 
making:  Wolf  v.  Burke,  18  Colo.  264,  32 
Pac.  427,  19  L.  R.  A.  792;  Garrigue  v.  Kellar, 
164  Ind.  676,  74  N.  E.  523,  69  L.  R.  A.  870, 
108  Am.  St.  Rep.  324 ;  New  York  Security  & 
Trust  Co.  v.  Davis,  96  Md.  81,  53  Atl.  669; 
Poison  v.  Stewart,  167  Mass.  211,  45  N.  E. 
737,  36  L.  R.  A.  771,  57  Am.  St.  Rep.  452; 
Gray  v.  Telegraph  Co.,  108  Tenn.  39,  64  S. 
W.  1063,  56  L.  R.  A.  301,  91  Am.  St.  Rep.  700 ; 
Galloway  v.  Ins.  Co.,  45  W.  Va.  237,  31  S. 
E.  969. 

Cases  adopting  the  law  of  the  place  of  per- 
formance :  Southern  Exp.  Co.  v.  Gibbs,  155 
Ala.  303,  46  South.  465,  18  L.  R.  A.  (N.  S.) 
S74,  130  Am.  St.  Rep.  24 ;  Midland  Valley  R. 
Co.  v.  Mfg.  Co.,  80  Ark.  399,  97  S.  W.  679,  10 
Ann.  Cas.  372 ;  Progresso  S.  S.  Co.  v.  Ins. 
Co.,  146  Cal.  279,  79  Pac.  967 ;  Odom  v.  Se- 
curity Co.,  91  Ga.  505,  18  S.  E.  131 ;  Spinney 
v.  Chapman,  121  la.  38,  95  N.  W.  230,  100 
Am.  St.  Rep.  305;  Alexander  v.  Barker,  64 
Kan.  396,  67  Pac.  829;  Western  Union  Tel. 
Co.  v.  Eubanks,  100  Ky.  591,  38  S.  W.  1068, 
36  L.  R.  A.  711,  66  Am.  St.  Rep.  361;  Lynch 
v.  Postlethwaite,  7  Mart.  (O.  S.)  69,  12  Am. 
Dec.  495 ;  Stanton  v.  Harvey,  44  La.  Ann. 
511,  10  South.  778;  Emerson  Co.  v.  Proctor, 
97  Me.  360,  54  Atl.  849 ;  Arbuckle  v.  Reaume, 
96  Mich.  243,  55  N.  W.  808;  Limerick  Nat. 
Bank  v.  Howard,  71  N.  H.  13,  51  Atl.  641,  93 
Am.  St.  Rep.  489;  Brownell  v.  Freese,  35  N. 
J.  L.  285,  10  Am.  Rep.  239 ;  Montana  Coal  & 
Coke  Co.  v.  Coal  &  Coke  Co.,  69  Ohio  St.  351, 
69  N.  E.  613 ;  Bennett  v.  Loan  Ass'n,  177  Pa. 
233,  35  Atl.  684,  34  L.  R.  A.  595,  55  Am.  St. 
Rep.  723;  First  Nat.  Bank  v.  Doeden,  21  S. 
D.  400,  113  N.  W.  81. 

Cases  adopting  the  law  intended  by  the 
parties:  Beggs  v.  Bartels,  73  Conn.  132,  46 
Atl.  874,  84  Am.  St.  Rep.  152;  Burson  v. 
Vogel,  29  App.  D.  C.  396 ;  Illinois  Cent.  R.  Co. 
v.  Beebe,  174  111.  13,  50  N.  E.  1019,  43  L.  R. 
A.  210,  66  Am.  St.  Rep.  253;  Security  Co.  of 
Hartford,  Connecticut  v.  Eyer,  36  Neb.  507, 
54  N.  W.  838,  3S  Am.  St.  Rep.  735 ;  Wilson  v. 
Mill  Co.,  150  N.  Y.  314,  44  N.  E.  959,  55  Am. 
St.  Rep.  680;  Williams  v.  Mutual  Reserve 
Fund  Life  Ass'n,  145  N.  C.  128,  5S  S.  E.  802, 
13  Ann.  Cas.  51 ;   U.  S.  Savings  &  Loan  Co. 


CONFLICT  OF  LAWS 


599 


CONFLICT  OP  LAWS 


v.  Shain,  8  N.  D.  136,  77  N.  W.  1006 ;  Gallet- 
ley  v.  Strickland,  7-1  S.  C.  304,  54  S.  E.  570; 
Metropolitan  Life  Ins.  Co.  v.  Bradley,  98  Tex. 
230,  sj  S.  W.  1031,  G8  L.  B.  A.  509;  Union 
Central  Life  Ins.  Co.  v.  Pollard,  94  Va.  146, 
20  S.  E.  421,  30  L.  R.  A.  271,  64  Am.  St.  Rep. 
715;  Benjamin  Bank  v.  Doherty,  42  Wash. 
317,  S4  Pac.  S72,  4  L.  R.  A.  (N.  S.)  1191,  111 
Am.  St  Pep.  123;  Brown  v.  Gates,  120  Wis. 
349,  -JT  X.  W.  221,  98  X.  W.  205,  1  Ann.  Cas. 
85;  and,  in  usury  rases,  al80  the  federal 
courts  and  Alabama,  Georgia,  Kansas.  Mis- 
souri,  Mississippi,    Ohio,   and  Tennessee. 

The  Federal  /.  Place  of  making 

governs;  Fidelity  Mut  Life  Ass'n  v.  Jeffords, 
107  Fed.  402,  46  C.  a  A.  377,  53  L.  R.  A.  L93; 
Robinson  v.  Brick  Co.,  127  Fed.  804,  62  C.  C. 
A.  4S4;  thus  the  place  of  making  is  adopted 
as  opposed  to  the  law  of  the  doniicil  of  the 
parties:  Northwestern  S.  S.  Co.  v.  Ins.  Co., 
101  Fed.  100;  or  to  the  place  from  which  the 
offer  is  sent;  Equitable  Life  Assur.  Soc.  of 
United  States  v.  Trimble,  S3  Fed.  85,  U7  0. 
C.  A.  -104;  or  to  the  place  where  a  document 
is  signed,  prior  to  its  taking  effect  elsewhere 
as  an  obligation;  Pnipps  v.  Harding,  70  Fed. 
408,  17  C.  C.  A.  203,  30  L  R.  A.  513. 

2.  In  a  small  number  of  cases,  it  has  been 
held  that  the  law  of  the  place  of  perform- 
ance governs  the  validity  of  the  contract; 
Smith  v.  Ins.  Co.,  5  Fed.  582;  Pacific  States 
Savings,  Loan  &  Bldg.  Co.  v.  Green,  123  Fed. 
43,  59  C.  C.  A.  107;  Berry  v.  Chase,  146  Fed. 
625,  77  C.  C.  A.  161;  but  where  there  is 
more  than  one  place  of  performance,  it  has 
been  held  that  the  parties  ex  necessitate 
must  be  referred  to  the  law  of  the  place  of 
making;  Morgan  v.  R.  Co.,  2  Woods  244, 
Fed.  Cas.  No.  9,804. 

8.  The  place  by  the  law  of  which  the  con- 
tract is  valid:  In  usury  cases  it  has  often 
been  held  that,  if  the  place  of  performance 
would  hold  an  agreement  void  for  usury,  the 
law  of  the  place  of  making  may  be  resorted 
to  for  making  the  contract  valid;  Sturdi- 
vant  v.  Bank,  00  Fed.  730,  9  C.  C.  A.  256; 
Andruss  v.  Saving  Ass'n,  94  Fed.  575,  36  C. 
C.  A.  336 ;  Dygert  v.  Trust  Co.,  94  Fed.  913, 
37  C.  C.  A.  389. 

4.  Place  intended  by  the  parties:  In  some 
cases  the  court  seeks  to  find  the  intention  of 
the  parties,  and  governs  the  contract  by  that; 
Wayman  v.  Sunt  bard,  10  Wheat.  (U.  S.)  1,  6 
L.  Ed.  2o3;  Gibson  v.  Ins.  Co.,  77  Fed.  561. 
Tins  is  the  rule  most  commonly  laid  down 
in  the  usury  rases,  where  the  parties  are  pre- 
sumed to  intend  the  law  of  the  place  of 
making  or  of  the  place  of  performance,  ac- 
cording to  which  would  make  the  contract 
valid;  Cromwell  v.  Sac  County.  90  U.  S.  51, 
24  L.  Ed.  081;  Matthews  v.  Murchison,  17 
Fed.  700;  so  in  other  than  usury  cases:  Hub- 
bard v.  Bank,  72  Fed.  234,  18  C.  C.  A.  525  : 
but  where  both  laws  would  make  the  agree- 
ment usurious,  the  intention  of  the  parties  is 
allowed  no  weight,  and  the  law  of  the  place 
of  making   governs;    Andrews  v.   Pond,   13 


Pet.  (U.  S.)  65,  10  L.  Ed.  61 ;    Heath  v.  Gris- 
wold,  5  Fed.  573,  18  Plat 
the  place  of  makii 

to  be  that  intended  by  the  parties; 
Liverpool  &  G.    W.    S.  <  !o.  v.   Ins.   I 
S.  397,  9   Sup.   Ct.  409,  32  L.    Ed   7>s;    Mu- 
tual Life  Ins.  Co.  v.  Cohen,  17'.i  I 
sup.  Ct  L06,  45  \,  Ed  181;  1 
P(  d.  624,  9  C.  C.  A.  101,  23  L.  p.  A.  7 
a   few  other  cases,  the  law  of  the  place  of 
performance  is  presumed  to  be  that  inti 
by  the  parties;    Hall   v.  Cordell,   142   D.   S. 
11G,  12  Snp.  <'t.  i.-,!.  ;;.-,  p.  Ed  '.-"><;;   Johnson 
v.  Norton  Co.,  159  Fed.  361,  86  C.  O.  A 
When  the  parties  expressly  agree  that  the 
contract  shall  be  subject  to  a  certain  law,  it 
has   I. ecu   intimated,   though   never   ex] 
decided  by  the  Supreme  Court,  that  the  court 
will    give   effect    to    this    intention;     Mutual 
Life  Ins.  Co.  v.  Hill,  193  U.  S.  551,  21  Sup. 
Ct.  538,  48  L.  Ed.  7SS;    but  no  such  stipula- 
tion will  be  given  effect  where  it  is  regarded 
as  against  public  policy;    Lewisohn  v.  Si 
ship  Co.,  56  Fed.  602;    Botany  Worsted  .Mills 
v.  Knott,  70  Fed.  5S2 ;    or  where  the  parties 
would  thereby  avoid  the  provisions  of  a  stat- 
ute of  the  place  of  making;    Fowler  v.  Trust 
Co.,  141  U.   S.  3S4,  12  Sup.  Ct.   1,  35  L.   Ed. 
786;    Mutual  Life  Ins.  Co.  v.  Hathaway,  106 
Fed.  815,  45  C.  C.  A.  655;    Albro  v.  Ins.  Co., 
119   Fed.   629;    but   a    legislative   enactment 
which   declares  a   public  policy   and   prohib- 
its its  violation  has,  to  some  extent,  an  ex- 
tra-territorial effect;    thus,  a  prohibition  in 
a  decree  of  divorce  against  the  re-marriage 
of  the  guilty  party  during  the  lifetime  o 
other    has,    in    general,    no    extra-territorial 
effect;    Dimpfel  v.  Wilson,  107   Md.  329,  68 
Atl.   561,   13  L.   R.   A.   (X.   S.)   1180.   15   Ah:.. 
Cas.  753;    Van  Voorhis  v.  P.rintnall.  86  X.  Y. 
18,  40  Am.  Rep.  505 ;    Thorp  v.  Thorp. 
Y.  602,  43  Am.  Rep.  1S9;    Moore  v.  Begeman, 
92  X.   Y.  521,  44  Am.  Rep.  408;    yet  where 
a  statute  forbids  such  remarriage  within  a 
specified  time,  and  the  persons  go  to  another 
state  for  the  express  purpose  of  evading  the 
law  of  their  doniicil,  contract  a  marriage  in 
such  state,  valid  under  Its  laws,  and   return 
to  the  state  of  their  doniicil,  such  marriage 
will  there  be  held  invalid  as  against  public 
policy  and  good  morals;    Lanham  v.  Lanham, 
136  Wis.  360,  117  X.  W.  7s7.  17  L.  P.  A.  (X. 
S.)  80-1,  128   Am.   St  Bep.  1085;    and  where 
the  state   statutes  prohibit  the  guilty  party 
in  a  divorce  granted  for  adultery   from  mar- 
rying the  co-respondent,   during  the  lifetime 
of  the  innocent  spouse,  a  marriage  in  anoth- 
te,  valid  according  to  its  laws,  will  not 
be  recognized  in  the  state  declaring  such  a 
marriage  to  be  against  its  public  policy  and 
good   morals;     Pennegar   v.    State,   87   Tenu. 
214,  10  S.  W.  305,  2  L,  P.  A.  703,  !<>  Am.  St 
-lull's  Estate,  183  Pa.  625,  39  Atl. 
16,  39  L.  R.  A.  539,  63  Am.  St  Pep.  770;    so 
where  a  stature  prohibited  the  marriage  of 
negroes  and  white  persons,  such  a  marriage. 


CONFLICT  OF  LAWS 


GOO 


CONFLICT  OF  LAWS 


when  made  outside  of  the  state  and  valid 
where  performed,  was  held  void  in  the  state 
enacting  it ;  Dupre  v.  Boulard's  Ex'r,  10  La. 
Ann.  411 ;  Kinney  v.  Com.,  30  Gratt.  (Va.) 
858,  32  Am.  Rep.  690;  so  where  an  English 
statute  provided  that  a  marriage  with  a  de- 
ceased wife's  sister  should  be  invalid,  a  mar- 
riage made  outside  of  England,  and  lawful 
where  it  was  celebrated,  was  held  void  in 
England;  9H.L  Cas.  193;  so  where  there 
was  statutory  prohibition  of  the  marriage  of 
first  cousins,  such  a  marriage  was  held  void 
where  the  parties  contracted  a  valid  mar- 
riage elsewhere  and  returned  to  the  state 
prohibiting  it;  Johnson  v.  Johnson,  57  Wash. 
89,  106  Pac.  500,  26  L.  R.  A.  (N.  S.)  179. 

A  like  provision  in  the  Civil  Code  of  South 
Dakota  was  held  not  to  warrant  the  annul- 
ment of  a  marriage  contracted  in  California 
between  first  cousins  who  at  the  time  of  the 
marriage  were  citizens  of  California;  Garcia 
v.  Garcia,  25  S.  D.  645,  127  N.  Wr.  586,  Ann. 
Cas.  1912C,  621. 

A  statute-declared  that  re-marriage  by  one 
of  the  parties  to  a,  divorce  within  a  given 
time,  either  within  or  without  the  state, 
should  be  void;  after  a  divorce  within  the 
state,  one  of  the  parties  within  the  prohibit- 
ed time  went  to  a  foreign  country  and  there 
acquired  a  domicil  and  contracted  a  mar- 
riage valid  by  its  laws ;  six  years  after  she 
returned  to  the  state,  where  she  was  di- 
vorced and  married  again.  On  a  prosecution 
for  bigamy,  her  foreign  marriage  was  held 
valid ;  State  v.  Fenn,  47  Wash.  561,  92  Pac. 
417,  17  L.  R.  A.  (N-  S.)  800,  on  the  ground 
that  her  domicil  was  at  the  time  in  such  for- 
eign country. 

Real  Estate.  In  general,  the  mode  of 
conveying,  incumbering,  transmitting,  devis- 
ing, and  controlling  real  estate  is  governed 
by  the  law  of  the  place  of  situation  of  the 
property;  Bronson  v.  Lumber  Co.,  44  Minn. 
348,  46  N.  W.  570;  Cochran  v.  Benton,  126 
Ind.  58,  25  N.  E.  870 ;  U.  S.  v.  Crosby,  7  Cr. 
(U.  S.)  115,  3  L.  Ed.  287 ;  Oakey  v.  Bennett, 
11  How.  (U.  S.)  33,  13  L.  Ed.  593 ;  Augusta 
Ins.  &  Banking  Co.  v.  Morton,  3  La.  Ann. 
418;  14  Ves.  541;  4  T.  R.  182;  Fall  v.  Eas- 
tin,  215  U.  S.  1,  30  Sup.  Ct.  3,  54  L.  Ed.  05, 
23  L.  R.  A.  (N.  S.)  924,  17  Ann.  Cas.  853; 
Brine  v.  Ins.  Co.,  96  U.  S.  627,  24  L.  Ed.  85S. 
See  Lex  Rei  Sit,e. 

Perhaps  an  exception  may  exist  in  the  case 
of  mortgages ;  Bank  of  England  v.  Tarleton, 
23  Miss.  175;  Dundas  v.  Bowler,  3  McLean 
397,  Fed.  Cas.  No.  4,141.  But  the  point  can- 
not be  considered  as  settled;  1  Washb.'R.  P. 
524 ;  Story,  Confl.  Laws  §  363 ;  Westl.  Priv. 
Int.  Law  75.  It  is  said  by  Wharton  (Confl. 
Laws  §  36S)  that  the  law  governing  the  mort- 
gage, as  such,  is  the  law  of  situs  of  the  land 
which  the  mortgage  covers ;  but  the  debt  is 
governed  by  the  law  of  the  domicil  of  the 
party  to  whom  it  is  due,  no  matter  where* 
the  property  be  situated ;  see  Townsend  v. 
Riley,  46  N.  H.  300 ;   Oregon  &  W.  Trust  Inv. 


Co.  v.  Rathburn,  5  Sawy.  32,  Fed.  Cas.  No. 
10,555;  Cope  v.  Wheeler,  41  N.  Y.  313 ;  Post 
v.  Bank,  138  111.  559,  28  N.  E.  978 ;  Pen  field 
v.  Tower,  1  N.  D.  216,  46  N.  W.  413;  and 
that  when  the  money  is  invested  on  the  land 
for  which  the  mortgage  is  given,  the  lex  sitce 
prevails.  For  the  purposes  of  taxation  a 
debt  has  its  situs  at  the  domicil  of  the  cred- 
itor ;  I-Iauenstein  v.  Lynham,  100  U.  S.  490, 
25  L.  Ed.  628. 

Personal  Property.  For  the  general  rules 
as  to  the  disposition  of  personal  property,  see 
Domicil.  Bills  of  exchange  and  promissory 
notes  are  to  be  governed,  as  to  validity  and 
interpretation,  by  the  law  of  the  place  of 
making,  as  are  other  contracts.  The  resi- 
dence of  the  drawee  of  a  bill  of  exchange, 
and  the  place  of  making  a  promissory  note 
where  no  other  place  of  payment  is  speci- 
fied, is  the  locus  contractus;  10  B.  &  C.  21; 
4  C.  &  P.  35 ;  Bissell  v.  Lewis,  4  Mich.  450 ; 
Davis  v.  Clemson,  6  McLean,  622,  Fed.  Cas. 
No.  3,630;  Barney  v.  Newcomb,  9  Cush. 
(Mass.)  46;  Peck  v.  Hibbard,  26  Vt.  698,  6^2 
Am.  Dec.  605;  Wilson  v.  Lazier,  11  Gratt. 
(Va.)  477;  Lizardi  v.  Cohen,  3  Gill  (Md.)  430; 
Fessenden  v,  Taft,  65  N.  H.  39,  17  Atl.  713; 
Stevens  v.  Gregg,  89  Ky.  461,  12  S.  W.  775; 
see  Raymond  v.  Holmes,  11  Tex.  54 ;  Fra- 
zier  v.  Warfield,  9  Smedes  &  M.  (Miss.)  220, 
where  the  place  of  address  is  said  to  be  the 
place  of  making.  As  between  the  drawee  and 
drawer  and  other  parties  (but  not  as  between 
an  indorser  and  indorsee,  Everett  v.  Ven- 
dyres,  19  N.  Y.  436;  but  see  Peck  v.  Mayo, 
14  Vt.  33,  39  Am.  Dec.  205) ;  each  indorse- 
ment is  considered  a  new  contract;  Young 
v.  Harris,  14  B.  Monr.  (Ky.)  556,  61  Am.  Dec. 
170 ;  Cook  v.  Litchfield,  5  Sandf.  (N.  Y.)  330 ; 
Cox  v.  Adams,  2  Ga.  158;  Dundas  v.  Bow- 
ler, 3  McLean  397,  Fed.  Cas.  No.  4,141.  On 
a  bill  of  exchange  drawn  in  one  state  and 
payable  in  another,  the  time  within  which 
notice  of  protest  must  be  mailed  is  deter- 
mined by  the  law  of  the  latter  state;  Brown 
v.  .Jones,  125  Ind.  375,  25  N.  E.  452,  21  Am. 
St.  Rep.  227.  In  case  of  commercial  paper 
the  notice  required  to  bind  drawer  and  in- 
dorser is  determined  by  law  of  place  of  draw- 
ing and  indorsing.  See  Lex  Loci.  A  stat- 
ute of  limitations  of  a  foreign  state  provid- 
ing that  an  action  on  a  note  shall  be  brought 
within  a  certain  time  after  the  cause  of  ac- 
tion accrues  bars  the  debt  itsel'f  if  not 
brought  within  the  time  limited,  and  may  be 
pleaded  in  bar  of  an  action  brought  on  the 
note  in  another  state;  Rathbone  v.  Coe,  6 
Dak.  91,  50  N.  W.  620.  See  MacNichol  v. 
Spence,  83  Me.  87,  21  Atl.  748.  Place  of  pay- 
ment governs  as  to  all  matters  '  connected 
with  payment;  Pritchard  v.  Norton,  106  U. 
S.  124,  1  Sup.  Ct.  102,  27  L.  Ed.  104;  Tar- 
box  v.  Childs,  165  Mass.  408,  43  N.  E.  124. 

The  better  rule  as  to  the  rate  of  interest 
to  be  allowed  on  bills  of  exchange  and  prom- 
issory notes,  where  no  place  of  payment  is 
specified  and  no  rate  of  interest  mentioned. 


CONFLICT  OF  LAWS 


GUI 


CONFLICT  UF  LAWS 


seems  to  be  the  rate  of  the  lex  loci;  5  C.  & 
F.  1,  12;  Slacum  v.  Poinery,  6  Cra.  (U.  S.) 
221,  3  L.  Ed.  205 ;  The  Star,  3  Wheat.  (U.  S.) 
101,  4  L.  Ed.  338;  .lames  v.  Allen,  1  Dall. 
(Pa.)  191,  1  L.  Ed.  93;  Hawley  v.  Sloo,  12 
La.  Ann.  815.  And  Bi  e  Friend  v.  Wilkinson, 
9  Gratt  (Va.)  31;  Buck  v.  Utile.  24  Bliss. 
4C3;  Price  v.  Page  &  Bacon,  24  Mo.  (55;  1 
Pars.  Contr.  238;  Cope  v.  Alden,  53  Barb. 
(N.  Y.)  350;  Campbell  v.  Nichols,  33  N.  J.  L. 
81;  The  Star,  3  Wheat.  <U.  S.)  101,  4  L.  Ed. 
338.  The  damages  recoverable  on  a  bill  of 
exchange  not  paid  are  those  of  the  place 
where  the  plaintiff  is  entitled  to  reimburse- 
ment. Iri  the  United  States,  these  are  gen- 
erally fixed  by  statute;  Hendricks  v.  Frank- 
lin, 4  Johns.  (N.  V.i  L19;  Grimshaw  v.  Ben- 
der, 6  Mass.  L57;  Smith  v.  Shaw,  2  Wash. 
C.  C.  107,  Fed.  Cas.  No.  13,107;  Grant  v. 
Healey,  3  Sumn.  523,  Fed.  Cas.  No.  5,696. 

Where  a  place  uf  payment  is  specified,  the 
interest  of  that  place  must  be  allowed; 
French  v.  French,  12G  Mass.  3G0 ;  P< 
Mayo,  14  Vt.  33,  39  Am.  Dec.  205;  Pomeroy 
v.  Ainsworth,  22  Barb.  (N.  Y.)  118;  Dickin- 
son v.  Edwards,  77  N.  Y.  573,  33  Am.  Rep. 
671.  See  Fanning  v.  Consequa,  17  Johns, 
(N.  Y.)  511,  8  Am.  Dec.  -142;  except  that 
when  a  contract  is  made  in  one  state,  to  be 
performed  in  another,  parties  may  contract 
for  the  legal  rate  of  interest  allowable  in 
either  stale,  provided  such  contract  is  enter- 
ed into  in  good  faith,  and  not  merely  to 
avoid  the  usury  laws;  Depau  v.  Humphreys, 
8  Mart.  N.  S.  (La.)  1;  Townsend  v.  Riley, 
46  X.  H.  300;  Miller  v.  Tiffany,  1  Wall.  (U. 
S.)  310,  17  L.  Ed.  510;  Berrien  v.  Wright, 
26  Barb.  (N.  Y.)  213 ;  Kilgore  v.  Dempsey,  25 
Ohio  St.  413,  18  Am.  Rep.  306;  Arnold  v. 
Potter,  22  la.  194;  Brownell  v.  Freese,  35 
N.  J.  L.  285,  10  Am.  Rep.  239.  See  Odom  v. 
Security  Co.,  91  Ga.  505,  IS  S.  E.  131 ;  con- 
tra, Story,  Confl.  Laws  §  298.'  A  note  made 
in  one  state  and  payable  in  another,  is  not 
subject  to  the  usury  laws  of  the  latter  state, 
if  it  is  valid  in  that  respect  in  the  state 
where  it  was  made;  Matthews  v.  Paine,  47 
Ark.  54,  14  S.  W.  403;  Brewster  v.  Lyndes, 
2  Miles  (Pa.)  1S5. 

Chattel  mortgages  valid  and  duly  regis- 
tered under  the  laws  of  the  state  in  which 
the  property  is  situated  at  the  time  of  the 
mortgage,  will  be  held  valid  in  another  state 
to  which  the  property  is  removed,  although 
the  regulations  there  are  different;  Bank  of 
United  states  v.  Lee,  13  Pet  (U.  S.)  107,  10 
L.  Ed.  81;  Feurt  v.  Rowell,  62  Mo.  524; 
Barker  v.  Stacy,  25  Miss.  471;  Kanaga  v. 
Taylor,  7  Ohio  St.  134,  70  Am.  Dec.  02  :  Mar- 
tin v.  Hill,  12  Barb.  (N.  Y.)  631;  but  see 
Handley  v.  Harris,  48  Kan.  606,  29  Pac.  1145, 
17  L.  R.  A.  703,  30  Am.  St.  Rep.  322 ;  Clough 
v.  Kyne,  40  111.  App.  234;  Green  v.  Van 
Buskirk,  7  Wall.  (U.  S.)  140,  19  L.  Ed.  109; 
and  it  will  be  enforced  in  the  state  to  which 
the  property  has  been  removed,  although  it 


would   have   been   invalid   if   made   in   that 
state;    Smith  v.  Hut  383;    but 

it  is  said   by   Wharton   (Confl.   Laws    ' 
that  the  law  in  regard  to  chattel  morl 
is  governed  by  the  lex  rci  sitce;    that  a  lien 
is  extinguished  when  goods  are  taken  from 
the  place   where  the 

where  such  a  lien  is  not   n 
Whart.   Confl.   Laws  §  318;    McCabe   v.    l'.ly- 
myre,  9   Phila.   (Pa.)   615   (where   u   chattel 
age    made    In    Maryland    was   held    in- 
valid in  Pennsylvania  as  against  a  bona  fide 
purchaser  without  notice);   and  a  Lou; 
court  refused  to  enforce  a  chattel  moi 
made  in  another  state,  such  mortgages  being 
unknown  in  Louisiana:    Delop  v.  Win! 
Randolph,  20  La.  Ann.  185. 

The  law  of  the  situs  governs  a  mortgage 
of  chattels  in  one  state,  executed  in  anoth- 
er :   Borer,  int.  St.  I.. 

|  305;  dark  v.  TarbelL  58  N.  li.  88;  Green 
v.  Van  Buskirk,  7  Wall.  (U.  S.)  L39,  19  L. 
Ed.  109;  Denny  v.  Faulkner,  22  Ka] 
See  Ames  Iron  Works  v.  Warren,  76  Ind.  512, 
40  Am.  Rep.  258;  Tyler  v.  Strang,  21  Barb. 
(X.  Y.)  198;  contra,  Runyon  v.  Groshon,  12  N. 
J.  Eq.  80;  Blystone  v.  Burgett,  10  Ind.  28, 
68  Am.  Dec.  658.  The  same  is  true  in  the 
case  of  conditional  sales;  Langworthy  v. 
Little.  12  Cush.  109;    Hervey  v.  Lo- 

comotive Works,  93  I  23  I..  Ed.  l'"'::; 

Cleveland  Machine  Works  v.  Lang.  07  N.  EL 
348. 

The  lex  fori  deten  tines  the  remedii 
the  mortgage;    Ferguson  v.  Clifford,  ::7  N.  H. 
86;    contra,  Story,  Confl.  Laws  §  402;    Mum- 
ford   v.   Canty,   50   111.   370,  99   Am.   1  >■ 
(where  there  appears  to   have  been   i 
See  Wattson  v.  Campbell,  38  N.  Y.  153;  where 
a   mortgage  on  a   ship,   made  and  shown  to 
be  invalid  in  Pennsylvania,  was  held  invalid 
in    New    York;     Beaumont    v.    Yeatman,    S 
Humphr.  (Tenn.)  542. 

The  registration  of  chattel  mortgages  and 
transfer  of  government  and  local  stocks  are 
frequently  made  subjects  of  positive  law, 
which  then  suspends  the  law  of  the  domicil. 

Where  the  mortgagor  of  chattels  removes 
with  them  *o  another  state,  the   morl 
to  preserve  his  rights,  need  not  again  i 
the  mortgage  in  such  other  si  an  v. 

Stimson,  32  Minn.  377,  20  N.  W.  364  :  I 
son  v.  Clifford,  37  N.  H.  S7  :  Feurt  v.  Row- 
eii.  62  Mo.  524;  Parr  v.  Brady,  37  N.  J.  L. 
201.  But  in  Alabama  it  must  be  recorded 
to  preserve  its  validity;  Johnson  v.  Hughes, 
89  Ala.  588,  -  South.  117. 

As  to  whether  such  mortgages  will  he  re- 
el in  preference  to  claims  of  citizens 
of  the  state  into  which  the  property  Is  re- 
moved, it  is  held  that  they  will;  Jones  v. 
Taylor,  30  Yt.  12.  overruling  Skiff  v.  Solace, 
2:;  Yt.  27'.»;  Kanaga  v.  Taylor,  7  Ohio  St. 
134,  70  Am.  Dec.  62;  Martin  v.  Hill,  12 
Barb.  (N.  Y.)  631;  Beaumont  v.  Yeatman,  S 
Humphr.    (Tenn.)    542.      A   chattel   mortgage 


CONFLICT  OF  LAWS 


GU2 


CONFLICT  OF  LAWS 


valid  io  the  state  where  executed  without 
change  of  possession  protects  the  property 
mortgaged  against  an  attachment  in  Ver- 
mont, though  in  the  possession  of  the  mort- 
gagor ;  Taylor  v.  Boardman,  25  Vt  5S1 ;  Nor- 
ris  v.  Sowles,  57  Vt  3G0. 

Questions  of  priority  of  liens  and  other 
claims  are,  in  general,  to  be  determined  by 
the  lex  rei  sittr  even  in  regard  to  personal 
property ;  Harrison  v.  Sterry,  5  Cra.  (U.  S.) 
289,  3  L.  Ed.  104 ;  Olivier  v.  Townes,  2  Mart 
N.  S.  (La.)  93 ;  In  re  Miller's  Estate,  3  Rawle 
(Pa.)  312,  24  Am.  Dec.  345;  Hammond  v.  Sto- 
vall,  17  Ga.  491 ;  Walker  v.  Roberts,  4  Rich. 
(S.  C.)  561 ;  Trapnall  v.  Richardson,  13  Ark. 
543,  5S  Am.  Dec.  338.  A  chattel  mortgage 
made  in  Canada,  with  possession  delivered  to 
the  mortgagee,  was  held  entitled  to  priority 
in  Michigan,  whither  the  property  was  taken 
without  consent  of  the  mortgagee,  over  a 
prior  chattel  mortgage  in  Michigan  executed 
before  the  property  was  taken  to  Canada  and 
recorded  after  its  return;  Yining  v.  Millar, 
109  Mich.  205,  G7  N.  W.  126,  32  L.  R.  A.  442. 

The  existence  of  the  lien  will  generally 
depend  on  the  lex  loci;  Story,  Confl.  Laws 
§§  322  &,  402 ;  Harrison  v.  Sterry,  5  Cra.  (U. 
S.)  2S9,  3  L.  Ed.  104.  See  note  on  extra-ter- 
ritoriality  of  chattel  mortgages,  17  L.  R.  A. 
127. 

Marriage  comes  under  the  general  rule  in 
regard  to  contracts,  with  some  exceptions. 
See  Lex  Loci;  25  Amer.  Law  Rev.  S2. 

The  scope  of  a  marriage  settlement  made 
abroad  is  to  be  determined  by  the  lex  loci 
contractus;  1  Bro.  P.  C.  129;  2  M.  &  K.  513; 
where  not  repugnant  to  the  lex  rei  sitai;  31 
E.  L.  &  Eq.  443 ;  De  Pierres  v.  Thorn,  4  Bosw. 
(N.  Y.)  266. 

When  the  contract  for  marriage  is  to  be 
executed  elsewhere,  the  place  of  execution 
becomes  the  locus  contractus;  23  E.  L.  &  Eq. 
288.  On  the  continent  of  Europe,  capacity 
is  usually  governed  by  nationality,  though  in 
administering  the  rule  the  courts  favor  their 
own  citizens ;  in  England  it  was  governed  by 
domicil,  but  now  the  courts  have  gone  back 
to  the  decision  in  3  P.  D.  1,  holding  capacity 
is  governed  by  law  of  place  of  ceremony ;  and 
in  America  by  the  lex  loci;  Com.  v.  Lane,  113 
Mass.  45S,  18  Am.  Rep.  509.  Hence  it  is 
quite  unsafe  for  an  American  to  marry  a  for- 
eigner without  a  complete  investigation  of 
his  capacity  to  marry  according  to  his  per- 
sonal law.  See  an  article  by  J.  H.  Beale,  Jr., 
in  15  H.  L.  R.  3S2  ;  Maeeiage. 

Torts.  In  an  action  brought  in  one  state 
for  injuries  done  in  another,  the  statutes  and 
decisions  of  the  courts  of  the  latter  state 
must  fix  the  liability;  Njus  v.  Ry.  Co.,  47 
Minn.  92.  49  N.  W.  527;  Erickson  v.  S.  S. 
Co.,  96  Fed.  80 ;  Burnett  v.  R.  Co.,  176  Pa. 
45,  34  Atl.  972  (where  a  ticket  was  purchased 
at  a  point  in  New  Jersey  to  a  place  in  New 
York ;  the  person  was  injured  in  Pennsyl1 
vania  ;  the  law  of  Pennsylvania  was  held  to 
apply)  >    Alexander  v.   Pennsylvania  Co.,  48 


Ohio  St.  623,  30  N.  E.  69;  Railway  Co.  v. 
Lewis,  S9  Tenn.  235,  14  S.  W.  603.  See  Le> 
high  Valley  R.  Co.  v.  Pennsylvania,  145  U.  S. 
193,  12  Sup.  Ct.  S06,  36  L  Ed.  672. 

In  a  proceeding  to  limit  liability  for  claims 
against  a  French  vessel  found  to  be  in  fault 
for  a  collision  in  a  fog  on  the  high  seas,  the 
law  of  France,  which  authorizes  a  recovery 
for  loss  of  life  against  the  vessel  in  fault, 
will  be  enforced  by  the  courts  of  the  United 
States,  although  the  French  courts,  in  ap- 
plying the  facts,  found  the  international  rule 
as  to  the  speed  of  vessels  in  a  fog  might  not 
have  held  such  vessel  to  be  at  fault ;  La 
Bourgogne,  210  U.  S.  95,  28  Sup.  Ct  664,  52 
L.  Ed.  973. 

Movables  in  general.  An  assignment  of  a 
movable  which  gives  a  good  title  according 
to  the  law  of  the  country  where  it  is  situat- 
ed is  recognized  as  valid  in  England,  what- 
ever the  domicil  of  the  parties  may  be ; 
[1S92]  1  Ch.  23S ;  so  it  lies  with  the  law  of 
the  place  where  a  written  instrument  is  sit- 
uated to  determine  whether  it  is  negotiable 
or  not;  [1905]  1  K.  B.  677.  Where,  by  the 
law  of  the  place  where  goods  are  shipped  and 
where  the  ship  is,  a  shipper  is  entitled  to  ex- 
ercise a  right  of  stoppage  in  transitu,  and 
has  exercised  that  right  in  a  manner  recog- 
nized as  valid  by  such  law,  his  title  to  the 
goods  will  be  recognized ;  1  East  515.  The 
rights  of  the  assignor  and  the  assignee  on 
an  assignment,  in  one  country,  of  a  document 
of  title  to  a  debt  or  to  an  interest  in  per- 
sonal property,  are  in  general  governed  by 
the  law  of  the  country  where  the  assignment 
takes  place,  although  the  debt  may  be  due 
from  persons  living  in,  or  the  personal  prop- 
erty may  be  situated  in,  a  foreign  country; 
[1S9S]  A.  C.  616.  The  validity  of  an  assign- 
ment of  documents,  such  as  policies  of  insur- 
ance ;  17  Q.  B.  D.  309 ;  or  negotiable  instru- 
ments ;  [1904]  2  K.  B.  870 ;  is  determined  by 
the  law  of  the  place  where  the  assignment  is 
made;    15  App.  Cas,  267. 

Special  Personal  Relations.  Executors 
and  administrators,  in  the  absence  of  a  spe- 
cific statute  authorizing  it,  have  no  power  to 
sue  or  be  sued  by  virtue  of  a  foreign  appoint- 
ment as  such ;  Westl.  Priv.  Int.  Law  279 : 
Brookshire  v.  Dubose,  55  N.  C.  276;  Kirk- 
patrick  v.  Taylor,  10  Rich.  (S.  C.)  393;  L. 
R.  5  Ch.  App.  315;  Swatzel  v.  Arnold,  1 
V\*oolw.  3S3,  Fed.  Cas.  No.  13,6S2 ;  Clark  v. 
Blackington,  110  Mass.  369;  Parker's  Ap- 
peal, 61  Pa.  478;  Watson's  Adm'r  v.  Pack's 
Adm'r,  3  W.  Va.  154;  Turner  v.  Linam.  55 
Ga.  253 ;  Morton  v.  Hatch,  54  Mo.  408 :  Bell's 
Adm'r  v.  Nichols,  38  Ala.  678;  Gilman  v. 
Gilman,  54  Me.  453;  Armstrong  v.  Lear,  12 
Wheat  (U.  S.)  169,  6  L.  Ed.  5S9 ;  3  Q.  B. 
498;  2  Yes.  35.  Where  a  foreign  executor 
has  brought  assets  into  a  state,  then  as  the 
title  is  in  him  he  can  sue  as  an  individual, 
but  not  as  executor;  Talmage  v.  Chapel,  16 
Mass.  71. 

In  the  United  States,  however,  payment  to 


CONFLICT  OF  LAWS 


603 


CONFLICT  OF  LAWS 


such  executor  will  be  an  equitable  discharge, 
if  the  money  has  been  distributed  to  those 
entitled ;  Doolittle  v.  Lewis,  7  Johns.  Ch.  (N. 
Y.)  49,  11  Am.  Dec.  389. 

Ships  and  cargoes  and  the  proceeds  there- 
of, on  the  death  of  the  owner,  complete 
their  voyages  and  return  to  the  home  port 
to  be  administered;  Story,  Confl.  Laws  §  520; 
Wells  v.  Miller,  45  111.  382;  Orcutt  v.  Orms, 
3   Paige   Ch.    (N.   Y.)   459. 

See  Executors  and  Administrators. 

Guardians  have  no  power  over  the  prop- 
erty, whether  real  or  personal,  of  their 
wards,  by  virtue  of  a  foreign  appointment; 
Morrell  v.  Dickey,  l  Johns.  Ch.  (N.  Y.)  153; 
Kraft  v.  Wickey,  4  Gill  &  J.  (Md.)  332,  23 
Am.  Dec.  569;  4  T.  K.  185;  they  must  have 
the  sanction  of  the  appropriate  local  tri- 
bunal; Curtis  v.  Smith,  6  Blatch.  537,  Fed. 
Cas.  No.  3,505;  Noonan  v.  Bradley,  9  Wall. 
(U.  S.)  394,  19  L.  Ed.  757;  Woodworth  v. 
Spring.  I  Allen  (Mass.)  321;  Whart  Confl. 
Laws  §  260;   L.  R.  2  Eq.  74. 

As  to  the  power  of  a  guardian  over  the 
domlcil  of  his  ward,  see  Domicil. 

As  to  their  extra-territorial  powers,  see 
Receivers. 

Sureties  come  under  the  general  rules, 
and  their  contracts  are  governed  by  the  lex 
loci;  but  in  the  case  of  a  bond  with  sure- 
ties, given  to  the  government  by  a  navy 
agent  for  the  faithful  performance  of  his 
duties,  the  liability  of  the  sureties  is  govern- 
ed by  the  common  law,  as  the  accountability 
of  the  principal  was  at  Washington,  the  seat 
of  government ;  Cox  v.  U.  S.,  6  ret.  (U.  S.) 
172,  S  L.  Ed.  359  (the  case  coming  up  from 
Louisiana).  See  Duncan  v.  U.  S.,  7  Pet.  (tJ. 
S.)  435,  8  L.  Ed.  739.    See  'Suretyship. 

Judgments  and  Decrees  of  Foreign 
Courts  relating  to  immovable  property  with- 
in their  jurisdiction  are  held  binding  every- 
where. And  the  rule  is  the  same  with  re- 
gard to  movables  actually  within  their  juris- 
diction; Noble  v.  Oil  Co.,  79  Pa.  354,  21  Am. 
Rep.  66;  The  Rio  Grande,  2.3  Wall.  (U.  S.) 
45S,  23  L.  Ed.  158 ;  2  C.  &  P.  155.  See  Pen- 
noyer  v.  Neff,  95  U.  S.  714,  24  L.  Ed.  565; 
L.  R.  4  II.  L.  414;  Barrow  v.  West,  23  Pick. 
(Mass.)  270;  Croudson  v.  Leonard,  4  Cra. 
(U.  S.)  434,  2  L.  Ed.  G70.  Thus  admiralty 
proceedings  in  rem  are  held  conclusive  every- 
where if  the  court  had  a  rightful  jurisdic- 
tion founded  on  actual  possession  of  the 
subject-matter;  Rose  v.  Himely,  4  Cra.  (U. 
S.)  241,  2  L.  Ed.  G0S;  Hudson  v.  Cuestier, 
4  Cra.  (U.  S.)  293,  2  L.  Ed.  625;  Croudson 
v.  Leonard,  4  Cra.  (U.  S.)  434,  2  L.  Ed.  670; 
The  Mary,  9  Cra.  (U.  S.)  126,  3  L.  1.1.  678; 
Grant  v.  M'Lachlin,  4  Johns.  (N.  Y.)  34; 
Bradstreet  v.  Ins.  Co.,  3  Sumn.  600,  \'<;\. 
Cas.  No.  1,793;  Magoun  v.  Ins.  Co.,  1  Sto. 
157,  Fed.  Cas.  No.  8,961;  Gray  v.  Swan,  1 
H.  &  J.  (Md.)  142;  Calhoun  v.  Ins.  Co.,  1 
Binn.  (Pa.)  299;  Baxter  v.  Ins.  Co.,  6  Mass. 
277,   4   Am.    Dec   125;    L.   R,   5    Q.   B.   599; 


Dunham  v.  Ins.  Co.,  1  Low.  Cas. 

No.  4,152;   State  v.   R.   Co.,   10 

But  such  decree  may  1  1  for  mat- 

ter apparently  ei  ice  of  the 

record;  7  Term  523;  or  if  t;  ■)  am- 

biguity as   to   grounds   of   eondemnal 
Bingh.    495;    1   Greenl.    Ev.    | 
drewa  v.   Ilerriot,  4   Cow.   (N.  Y.i 
2  Kent  120. 

Jurisdiction    to    garnish    a    i  pay- 

able at  a  particular  place  cannot, 
to  some  cases,  be  had  without  personal 
ice   on   the   creditor;   see  cases   co 
Minor,    Confl.   of   Laws   §   125.     These 
are  overruled  in  Chicago,  K.  I.  &  P.  Ry.  Co. 
v.  Sturm,  174  V.   S.  710,  19  Sup.  Ct  797,  4:; 
L.  Ed.  1144,  which  holds  that  service  on  the 
garnishee    alone,    obtained    in    the    state   of 
his  domicil,  gives  jurisdiction.    This  decision 
was    based    on    reasoning    and    dicta    which 
would    allow    jurisdiction    irrespective    of 
domicil    wherever    such   service   is  obtained, 
and   this   view   had    been  previously   adopted 
by  a  few  cases  cited  in  Chicago,  R.  I.  &  P. 
Ry.  Co.  v.  Sturm,  174  U.  S.  710,  19  Sup.  Ct 
797,    13   L.    Ed.    1144.     See,   contra,   Pennsyl- 
vania   R.    Co.   v.    Rogers,    52    W.    Va.   450,  44 
S.  E.  300,  G2  L.   R.   A.   178. 

Proceedings   under   the  o    process 

are  held  proceedings  in  nm;  and  a  decree 
may  be  pleaded  in  bar  of  an  action  against 
the  trustee  or  garnishee;  1  Gre(  nl.  Ev.  § 
542;  4  Cow.  (N.  Y.)  520,  n.  But  the  court 
must  have  rightful  jurisdiction  over  the  res 
to  make  the  judgment  binding;  and  then  it 
will  be  effectual  only  as  to  the  res,  unless 
the  court  had  actual  jurisdiction  over  the 
person  also;  McVicker  v  l   Me.  314, 

50  Am.  Dec.  666;  Mattingly's  Heirs  v.  Corbit, 
7  B.  Monr.  (Ky.)  37G;  State  v.  R.  Co.,  10 
Nev.  47;  Pennoyer  v.  Neff,  95  U.  S.  714,  24 
L.  Ed.  565. 

Assignments  and  Transfers.  Voluntary 
assignments  of  personal  property,  valid 
where  made,  will  transfer  property  every- 
where;   Speed   v.    May,    17    Pa.    91,    55 

540;    Schroder   v.    Tompkins, 
072;  Van   YVyek   v.  Read,  43   Fed.   71G;  Rich- 
ardson  v.   Leavitt,    1    La.    Ann.   430,   45   Am. 
Dec.  90;   Greene  v.   Mfg.  Co..  52  Conn 
Train    v.    Kendall.    137    Mass.    3GG;    not    as 
against  citizens  of  the  state  of  the  situs  at- 
taching   prior    to    the    assignees'     obtaining 
possession:    Ingraham    v.    Geyer,    13    Mass. 
146,    7   Am.    Dec.    132;    King   v.    Join. 
Har.  (Del.)  31.    Otherwise  Wilson  v.  I 
12  Md.  54. 

An  involuntary  assignment  by  operation 
of  law  as  under  bankrupt  or  insolvent  laws 
will  not  avail  as  against  attaching  creditors 
iu  the  place  of  situation  of  the  property; 
•,-.  Thompson,  5  N.  V.  320;  Frazier  v. 
Fredericks,  24  N.  J.  L.  162;  Blake  v.  Wil- 
liams, ii  Pick.  (Mass.)  286,  302,  17  Am.  Dec. 
.".72;  McNeil  v.  Colquhoon,  3  N.  (■.  24;  Rob- 
inson v.  Crowder,  4  McCord  (S.  C.)  519,  17 


CONFLICT  OF  LAWS 


604 


CONFLICT  OF  LAWS 


Am.  Dec.  762;  Saunders  v.  Williams,  5  N. 
H.  213;  Olivier  v.  Townes,  2  Mart  N.  S. 
(La.)  93;  Milne  v.  Moreton,  6  Binn.  (Pa.) 
303,  6  Am.  Dec.  466;  Harrison  v.  Sterry,  5 
Cra.  (U.  S.)  289,  3  L.  Ed.  104;  Very  v.  Mc- 
Henry,  29  Me.  20S;  Burk  v.  McClain,  1 
Harr.  &  McH.  (Md.)  236 ;  Beer  v.  Hooper,  32 
Miss.  246;  Upton  v.  Hubbard,  28  Conn.  274, 
73  Am.  Dec.  670;  Woodward  v.  Roane,  23 
Ark.  526;  Osborn  v.  Adams,  18  Pick.  (Mass.) 
247;  Lichtenstein  v.  Gillett,  37  La.  Ann.  522. 

It  may  be  a  question  whether  tbe  same 
rule  would  hold  if  the  assignees  had  obtain- 
ed possession ;  Cook  v.  Van  Horn,  81  Wis. 
291,  50  N.  W.  893.  An  assignment  by  opera- 
tion of  law  Is  good  so  as  to  vest  property 
in  the  assignees  by  comity;  6  M.  &  S.  126; 
Holmes   v.    Remsen,    20  Johns.   (N.    Y.)    262, 

11  Am.  Dec.  269;  Milne  v.  Moreton,  6  Binn. 
(Pa.)  363,  6  Am.  Dec.  466 ;  Goodwin  v.  Jones, 
3  Mass.  517,  3  Am.   Dec.  173. 

In  England  it  is  settled  that  an  assign- 
ment under  the  bankrupt  law  of  a  foreign 
country  passes  all  the  personal  property 
of  the  bankrupt  locally  situate,  and  debts 
owing  in  England,  and  that  an  attachment 
of  such  property  by  an  English  creditor, 
after  such  bankruptcy,  with  or  without  no- 
tice to  him,  is  invalid  to  overreach  the  as- 
signment.    See  25  Q.  B.  Div.  399. 

Discharges  by  the  lex  loci  contractus  are 
valid  everywhere;  May  v.  Breed,  7  Cush. 
(Mass.)  15,  54  Am.  Dec.  700;  Long  v.  Ham- 
mond, 40  Me.  204;  Peck  v.  Hibbard,  26  Vt. 
703,  62  Am.  Dec.  605;  Blanchard  v.  Russell, 
13  Mass.  1,  7  Am.  Dec.  106;  Mason  v.  Haile, 

12  Wheat.  (U.  S.)  370,  6  L.  Ed.  660;  5  East 
121.  This  rule  is  restricted  in  the  United 
States  by  the  clause  in  the  constitution 
forbidding  the  passage  of  any  law  impairing 
the  obligation  of  contracts.  Under  this  pro- 
vision, it  is  held  that  a  state  insolvent  or 
bankrupt  law  may  not  have  any  extra-terri- 
torial effect  to  discharge  the  debtor;  Cook 
v.  Moffat,  5  How.  (U.  S.)  307,  12  L.  Ed. 
159;  Donnelly  v.  Corbett,  7  N.'Y.  500;  Story, 
Const.  §  1115.  See  Lex  Fori.  It  may,  how- 
ever, take  away  the  remedy  for  non-per- 
formance of  the  contract  in  the  locus  con- 
tractus, on  contracts  made  subsequently. 

As  to  Foreign  Judgments  and  Foreign 
Laws,  see  those  titles. 

The  important  question  of  federal  courts 
following  state  decisions,  or  not,  is  properly 
treated  here.  There  is  no  common  law  of 
the  United  States  in  the  sense  of  a  national 
customary  law  distinct  from  the  common 
law  of  England  as  adopted  by  the  several 
states,  each  for  itself,  applied  as  its  local 
law,  and  subject  to  such  alteration  as  may 
be  provided  by  its  own  statutes;  Wheaton 
v.  Peters,  8  Pet.  (U.  S.)  591,  8  L.  Ed.  1055; 
Smith  v.  Alabama,  124  U.  S.  465,  8  Sup.  Ct 
564,  31  L.  Ed.  508.  A  determination  in  a 
given  case,  of  what  that  law  is,  may  be 
different  in  a  federal  court  from  one  pre- 
vailing in  a  state  court.     This  arises  from 


the  circumstance  that  the  federal  courts, 
where  they  are  called  upon  to  administer 
the  law  of  the  state  in  which  they  sit,  or 
by  which  the  transaction  is  governed,  ex- 
ercise an  independent,  though  concurrent, 
jurisdiction,  and  are  required  to  ascertain 
and  declare  the  law  according  to  their  own 
judgment;  Western  Union  Telegraph  Co.  v. 
Pub.  Co.,  181  U.  S.  92,  21  Sup.  Ct.  561,  45 
L.  Ed.  765.  The  conclusion  of  a  state  court, 
as  to  the  time  when  a  cause  of  action  ac- 
crues in  case  of  fraud  or  concealment,  based, 
not  on  a  construction  of  a  state  statute, 
but  on  the  view  taken  of  the  rule  of  the  com- 
mon law,  is  not  binding  on  a  federal  court, 
when  called  on  to  construe  the  common  law 
and  to  apply  its  principles  to  cases  arising 
between  citizens  of  different  states ;  Murray 
v.  R.   Co..  62  Fed.  24. 

U.  S.  R.  S.  §  721,  provides  that  the  laws 
of  the  several  states  shall  be  regarded  as 
rules  of  decision  in  trials  at  common  law 
in  courts  of  the  United  States  in  cases  where 
they  apply.  Judge  Story  in  Swift  v.  Tyson, 
16  Pet.  (U.  S.)  1,  10  L.  Ed.  865,  says :  "It 
will  hardly  be  contended  that  decisions  of 
courts  constitute  laws.  They  are  at  most 
only  evidence  of  what  the  laws  are,  and 
are  not  themselves  laws.  They  are  often 
re-examined,  reversed,  and  qualified  by  the 
courts  themselves,  whenever  they  are  found 
to  be  either  defective,  ill-founded  or  other- 
wise incorrect."  All  the  decisions  of  the 
state  courts  are  "highly  persuasive"  upon 
the  United  States  courts,  even  on  proposi- 
tions of  general  law;  this  is  because  of  the 
desire  for  harmony  between  the  jurisdic- 
tions; Burgess  v.  Seligman,  107  U.  S.  20,  2 
Sup.  Ct.  10,  27  L.  Ed.  359.  Some  of  the 
questions  on  which  the  federal  courts  have 
refused  to  follow  the  state  courts  are  as 
follows:  A  case  concerning  building  and 
loan  associations ;  Alexander  v.  Loan  Ass'n, 
110  Fed.  267 ;  as  to  taking  possession  of 
chattels  under  a  chattel  mortgage;  Thomp- 
son v.  Fairbanks,  196  U.  S.  516,  25  Sup.  Ct. 
306,  49  L.  Ed.  577;  as  to  the  liability  of 
common  carriers,  in  the  absence  of  a  stat- 
ute; Lake  Shore  &  M.  S.  R.  Co.  v.  Prentice, 
147  U.  S.  101,  13  Sup.  Ct.  261,  37  L.  Ed.  97; 
the  law  of  fellow  servant;  Baltimore  &  O. 
R.  Co.  v.  Baugh,  149  U.  S.  372,  13  Sup.  Ct. 
914,  37  L.  Ed.  772 ;  the  law  as  to  the  duties 
of  the  master  to  furnish  safe  appliances  to 
the  servant;  Texas  &  P.  R.  Co.  v.  Barrett, 
166  U.  S.  617,  17  Sup.  Ct.  707,  41  L.  Ed. 
1136;  the  law  as  to  injuries  at  railroad 
crossings;  Schofield  v.  Ry.  Co.,  114  U.  S. 
615,  5  Sup.  Ct.  1125,  29  L.  Ed.  224;  and  as 
to  the  validity  of  contracts  exempting  tele- 
graph companies  from  liability  for  mistakes, 
etc.,  in  the  transmission  of  messages ;  West- 
ern Union  Telegraph  Co.  v.  Cook,  61  Fed. 
624,  9  C.  C.  A.  680. 

As  to  all  matters  governed  by  the  law 
merchant,  the  federal  courts  are  not  bound 
by    state    decisions;    Burgess    v.    Seligman, 


CONFLICT  OF  LAWS 


G05 


CONFLU  T  I  >F  LAWS 


107  U.  S.  20,  2  Sup.  Ct.  10,  27  L.  Ed.  359.  It 
is  sail]  that  the  same  is  true  in  the  law  of 
insurance;  see  Foster  Fed.  Pr.  557,  575, 
.where  the  cases  are  collected. 

Federal  courts  follow  decisions  of  state 
courts:  1.  Upon  the  construction  of  Btate 
constitutions  and  statutes;  Walker  v.  Stale 
Harbor  Com'rs,  17  Wall.  648,  21  L.  Ed.  744; 
Gag*  v.  Pumpelly,  115  U.  S.  154,  6  Sup.  Ct 
136,  29  h.  Ed.  449;  Its  Interpretation  is  ac- 
cepted as  the  true  Interpretation,  whatever 
may  be  the  federal  court's  opinion  of  its 
soundness;  Oates  v.  Bank,  100  U.  S.  245,  25 
L.  Ed.  580.  2.  Dpon  questions  Involving  the 
title  to  land;  Myrick  v.  Heard.  31  Ted.  241; 
Deguire  v.  Load  Co.,  37  Fed.  663;  Shields 
v.  McAuley,  37  Fed.  302;  Arrowsmith  v. 
Gleason,  129  U.  S.  86,  9  Sup.  Ct.  237,  32  L. 
Ed.  630.  3.  Upon  the  question  whether  a 
third  person  may  sue  on  a  contract  made 
for  his  benefit;  Bethlehem  Iron  Co.  v.  Hoad- 
ley,  152  Fed.  735;  as  to  the  effect  upon  con- 
tracts of  a  statute  prohibiting  labor  on  Sun- 
day; Hill  v.  Hite,  79  Fed.  826;  as  to  what 
constitutes  a  breach  of  a  contract  for  serv- 
ice; Ely  v.  Revolving  Door  Co.,  184  Fed.  459; 
as  to  the  right  of  the  lowest  bidder  to  the 
award  of  a  contract  for  a  public  improve- 
ment; U.  S.  Wood  Preserving  Co.  v.  Sund- 
maker,  ISO  Fed.  G78,  110  C,  C.  A.  224;  as 
to  the  payment  of  wages  of  employees; 
Crowther  v.  Ins.  Trust  &  C.  Co.,  85  Fed.  41, 
29  C.  C.  A.  1.  4.  Upon  the  construction  and 
effect  of  statutes  in  relation  to  marriage; 
Meister  v.  Moore,  9G  U.  S.  70.  24  L.  Ed.  826 ; 
and  generally  as  to  the  capacity  of  married 
women  to  contract  and  their  liability  on  their 
contracts;  Cross  v.  Allen,  141  U.  S.  52S,  12 
Sup.  Ct.  67,  35  L.  Ed.  843;  and  specifically 
her  right,  under  married  women's  acts,  to 
mortgage  her  separate  property  to  secure 
her  husband's  debts;  Mitchell  v.  Lippincott, 
2  Woods  467,  Fed.  Cas.  No.  9,665 ;  the  requi- 
sites op  conveyances;  Gillespie  v.  Coal,  etc., 
Co.,  163  Fed.  002,  91  C.  C.  A.  494;  and  ac- 
knowledgment; Berry  v.  Bank,  93  Fed.  •!  I.  35 
C.  C.  A.  185,  by  a  married  woman;  the  effect 
of  conveyances  to  husband  and  wife  :  M 
v.  Reed,  17  Fed.  401;  a  wife's  right  to  sue  in 
her  own  name;  and  as  to  the  running  of  the 
statute  of  limitations  against  her;  Kibbe  v. 
Ditto,  93  U.  S.  074,  23  L.  Ed.  1005;  the  com- 
mon-law  right  of  husband  and  wife  re- 
spectively to  the  custody  of  a  child;  In  re 
Barry,  42  Fed.  113,  136  U.  S.  597,  34  L.  Ed. 
503,  note.  5.  Upon  questions  distinctive  of 
a  statute  giving  a  right  of  action  for  a  neg- 
ligent homicide;  Mate  v.  C.  &  A.  R.  R.  Co., 
85  Fed.  180;  Spinello  v.  R.  Co.,  183  Fed.  762, 
10G  C.  C.  A.  189.  6.  Dpon  the  validity  of  a 
license  ordinance  adopted  by  a  board  of 
county  supervisors;  Flanigan  v.  Sierra  Coun- 
ty. 190  U.  S.  553,  25  Sup.  Ct.  314,  49  L.  Ed. 
597;  or  ordinances  respecting  the  traffic  in 
Intoxicating  liquors;  Crowley  v.  Christen- 
sen,  137  D.  s.  86,  11  Sup.  Ct  13.  34  L.  Ed. 
620.      7.  Upon    general    questions    of    local 


law   in   regard  to   0  ind  extent 

Of   the  power     and   liabilities   of  the   po' 

builies  or  municipal  Ions  of  a  Bl 

Johnson  v.   St   I 

A.  617,  18  Ann.  Cas.  949.     8.    : 

in  relation  to  the  state  courts;  Mohr  \ 

nierre,  101  D.  s.  417,  25  L.  Ed.  1 

See  40  L.  R.  A.    (N.  S 
haustive  note. 

The    rules    of   evidence   of  e    are 

generally  applied  in  the  federal  courts; 
Bucher  v.  R.  Co.,  125  D.  S.  555,  8  Sup. 

Ct   07 1,  31  L.  Ed.  795. 

As  to  the  situs  of  movable  property  for 
taxation,  see  Taxation. 

See  United  States  Coubts;  Husband  and 
Wife  ;    Leoi  cimaox  ;     DrvoB<  b  ;    < ' 

■  Ian    and    Ward;    Adoption;     I 
Usubt;    Trusts  ;    Couporatio:  sxmx- 

tion  of  United  S  i 

CONFORMITY  STATUTE.  A  term  used 
to  designate  section  721  of  Revised  Statutes 
of  the  U.  S.  which  provides  as  to  federal 
courts  conforming  to  state  practice. 

CONFRONTATION.  The  act  by  which  a 
witness  is  brought  into  the  presence  of  the 
accused,  so  that  the  latter  may  object  to 
him,  if  he  can,  and  the  former  may  know 
and  Identify  the  accused  and  maintain  the 
truth  in  his  presence.  In  criminal  ca - 
man  can  be  a  witness  unless  confronted 
with  the  accused,  except  by  cons' 

C0NFUSI0  (Lat.  conf  under  e) .  In  Civil 
Law.  A  pouring  together  of  liquids;  a  melt- 
ing of  metals;  a  blending  together  of  an 
inseparable  compound. 

It  Is  distinguished  from  commixtion  by  the  fact 
that  in  the  latter  case  a  separation  may  be  made, 
while  in  a  case  of  confuaio  there  cannot  be.  2  Bla. 
Com.    405. 

CONFUSION  OF  DEBTS.  The  concur- 
rence of  two  adverse  rights  to  the  same 
thing  in  one  and  the  same  person.  Woods  v. 
Ridley,  11  Humph.  (Tenn.)  19S. 

CONFUSION  OF  GOODS.  Such  a  mix- 
ture of  the  goods  of  two  or  more  persons 
that  they  cannot  be  distinguished. 

When  this  takes  place  by  the  mutual  con- 
sent of  the  owners,  they  have  an  b 
in  the  mixture  In  proportion  to  their  re- 
spective shares:  Silsbury  v.  McCoon,  6  Hill 
(N.  Z.)  425,  H  Am.  Pee.  753;  bul  see  Wells 
v.  Batts*112  X.  C  2S3,  17  S.  E.  417,  34  Am. 
St.  Rep.  506.  Where  it  is  caused  by  the 
wilful  act  of  one  party  without  the  other's 
consent,  the  one  causing  the  mixture  must 
separate  them  at  his  own  peril;  Bisp.  Bq. 
I  86;  Ilesseltine  v.  Stockwell,  .30  Me.  237, 
50  Am.  Dec.  627;  Bryant  v.  Ware,  30  Me. 
295;   Dunning   v.    Stean  rb.    (X.    Y.) 

G30 ;  2  Kent  365 ;  and  must  bear  the  whole 
loss;  •Brackenridge  v.  Holland,  2  Blackf. 
(Ind.)  377,  20  Am.  Dec.  123;  Huff  v.  Earl, 
3  Ind.  30G;  Hart  v.  Ten  Eyek.  2  Johns.  Cb. 
(X.  Y.)  62;  Willard  v.  Rice,  11  Mete.  f>l 


CONFUSION  OF  GOODS 


606 


CONFUSION  OF  GOODS 


493,  45  Am.  Dec.  226:  Hesseltine  v.  Stock- 
well,  30  Me.  237;  unless  he  can  identify  his 
goods;  Ayre  v.  Hixson,  53  Or.  19,  98  Pac. 
51S,  133  Am.  St.  Rep.  S19;  Levyeau  v.  Cle- 
ments, 175  Mass.  376,  56  N.  E.  735,  50  L.  R. 
A.  397;  otherwise,  it  is  said,  if  the  confusion 
is  the  result  of  negligence  merely,  or  acci- 
dent; Pratt  v.  Bryant,  20  Vt.  333;  or  of  the 
wrongful  act  of  a  stranger ;  Bryant  v.  Ware, 
30  Me.  295;  if  commingled  by  mistake  or 
accident,  or  by  consent  of  the  parties,  the 
owners  will  be  treated  as  tenants  in  com- 
mon ;  Ayre  v.  Hixson,  53  Or.  19,  9S  Pac.  518, 
133  Am.  St.  Rep.  819.  The  rule  extends  no 
further  than  necessity  requires;  2  Campb. 
575;  Holbrook  v.  Hyde,  1  Vt.  286;  Wood 
v.  Fales,  24  Pa.  246,  64  Am.  Dec.  655 ;  Queen 
v.  Wernwag,  97  N.  C.  383,  2  S.  E.  657;  for 
if  the  goods  can  be  distinguished,  it  will  not 
justify  one  in  taking  another's  goods  upoD 
the  ground  that  they  have  been  intermin- 
gled; Claflin  v.  Beaver,  55  Fed.  576. 

Lord  Eldon  was  of  opinion  that  the  wrong- 
doer should  not  lose  his  whole  property  in 
the  mass;  15  Ves.  442;  and  with  this  view 
agrees  a  learned  article  in  6  Am.  L.  Rev.  455, 
understood  (Williston,  Sales,  179)  to  have 
been  written  by  Mr.  Justice  O.  W.  Holmes, 
and  containing  a  full  discussion  of  the  prin- 
ciples relating  to  grain  in  elevators. 

Wbere  a  vessel  was  wrecked  and  the  bales 
of  cotton  that  were  saved  were  indistinguish- 
able as  to  ownership,  it  was  held  that  the 
several  owners  of  the  cotton  that  was  ship- 
ped had  a  proportional  interest  in  what 
was  saved,  as  by  a  kind  of  tenancy  in  com- 
mon; L.  R.  3  C.  P.  427. 

The  fact  that  defendants  in  replevin  to 
recover  ore  had  wrongfully  mixed  plaintiff's 
ore  with  their  ore  of  a  lower  grade  did  not 
preclude  recovery  of  their  ore,  though  some 
of  the  defendants'  might  have  been  taken 
with  it;  Blurton  v.  Hansen,  135  Mo.  App. 
548,  116  S.  W.  474.  Where  a  bank  com- 
mingles its  own  collateral  to  secure  its  own 
debts  with  collaterals  which  it  held  to  se- 
cure a  note  payable  through  the  bank,  owed 
to  a  depositor,  in  such  a  way  that  it  was 
impossible  to  distinguish  one  set  from  the 
other,  all  the  collaterals  became  the  prop- 
erty of  the  depositor  to  secure  the  note ; 
First  Nat.  Bank  of  Decatur  v.  Henry,  159 
Ala.  367,   49   South.  97. 

A  writer  in  14  Harv.  L.  Rev.  ^57,  is  of 
opinion  that  the  better  view  is  that  where 
there  has  been  no  change  of  value  and  the 
mass  is  homogeneous  each  party  is  entitled 
to  his  proportionate  share  irrespective  of 
brand;  citing  Hesseltine  v.  Stockwell,  30 
Me.  237,  50  Am.  Dec.  627;  Claflin  v.  Jersey 
Works,  85  Ga.  27,  46,  11  S.  E.  721. 

As  to  grain  in  an  elevator,  the  cases  give 
effect  to  the  intention  of  the  parties  (which 
undoubtedly  exists)  that  the  depositor  shall 
retain  title;  Williston,  Sales,  §  154,  citing 
Woodward  v.  Semans,  125  Ind.  330,  25  N.  E. 
444,  21  Am.  St.  Rep.  225;  Moses  v.  Teetors, 


64  Kan.  149.  67  Pac.  526,  57  L.  R.  A.  267; 
Ledyard  v.  Hibbard,  48  Mich.  421,  12  N.  W. 
637,  42  Am.  Rep.  474;  Millhiser  Mfg.  Co.  v. 
Mills  Co.,  101  Va.  579,  44  S.  E.  760;  Rahilly 
v.  Wilson,  3  Dill.  420,  Fed.  Cas.  No.  11,532. 
The  same  writer  says  (section  154) :  "The 
warehouseman  is  thus  a  bailee  to  keep  tbe 
grain,  with  power  to  change  the  bailor's 
ownership  in  severalty  into  a  tenancy  in 
common  of  a  larger  mass  and  back  again, 
and  with  a  continuous  power  of  sale,  sub- 
stitution and  resale.  At  any  given  moment, 
however,  all  the  holders  of  receipts  for  the 
grain  are  tenants  in  common  of  the  amount 
in  store,  the  share  of  each  being  proportion- 
ate to  the  amount  of  his  receipts  as  com- 
pared with  the  total  number  of  receipts  out- 
standing." It  is  the  duty  of  the  bailee  to 
keep  sufficient  grain  to  meet  all  his  out- 
standing receipts;  Young  v.  Miles,  23  Wis. 
643. 

Where  gas  from  plaintiff's  well  was 
wrongfully  mixed  with  gas  from  defendant's 
59  wells,  plaintiff  could  recover  y60  of  the 
proceeds  from  the  sale  of  the  product  of  all 
of  the  60  wells;  Great  Southern  Gas  &  Oil 
Co.  v.  Fuel  Co.,  155  Fed.  114,  83  C.  C.  A. 
574. 

The  doctrine  does  not  apply  to  cattle  and 
horses  or  other  like  property  that  can  be 
readily  identified;  McKnight  v.  U.  S.,  130 
Fed.  659,  65  C  C.  A.  37. 

CONFUSION  OF  RIGHTS.  A  union  of 
the  qualities  of  debtor  and  creditor  in  the 
same  person.  The  effect  of  such  a  union 
is,  generally,  to  extinguish  the  debt;  1  Salk. 
306;  Cro.  Car.  551;  1  Ld.  Raym.  515.  See 
5  Term  381;  Comyns,  Dig.  Baron  et  Feme 
(D). 

CONGE.  In  French  Law.  A  clearance.  A 
species  of  passport  or  permission  to  navi- 
gate. 

CONGE  D'ACCORDER  (Fr.  leave  to  ac- 
cord). A  phrase  used  in  the  process  of  levy- 
ing a  fine.  Upon  the  delivery  of  the  original 
writ,  one  of  the  parties  immediately  asked 
for  a  conge'  d'accorder,  or  leave  to  agree 
with  the  plaintiff.  Termes  de  la  Ley;  Cow- 
ell.  See  Ltcentta  Concordandi;  2  Bla.  Com. 
350. 

CONGE  D'ELIRE  (Fr.  leave  to  elect). 
The  king's  permission  royal  to  a  dean  and 
chapter  in  time  of  vacation  to  choose  a 
bishop,  or  to  an  abbey  or  priory  of  his  own 
foundation  to  choose  the  abbot  or  prior. 

Originally,  the  king  had  free  appointment  of  all 
ecclesiastical  dignities  whensoever  they  chanced  to 
be  void.  Afterwards  he  made  the  election  over  to 
others,  under  certain  forms  and  conditions:  as, 
that  at  every  vacation  they  should  ask  of  the  king 
cong6  delire ',  Cowell ;  Termes  de  la  Ley;  1  Bla. 
Com.  379,  382.  The  permission  to  elect  Is  a  mere 
form ;  the  choice  Is  practically  made  by  the  crown. 
A  letter  missive  accompanies  the  authority  to  elect, 
designating  the  person  to  be  chosen  and  if  there 
is  no  election  within  twenty  days  there  Is  a  liability 
to  a  penalty. 


CONGfi  D'EMPARLER 


607 


CONGRESS 


CONGE  D'EMPARLER  (Ft.  leave  to  im- 
parl). The  privilege  of  an  imparlance  (Ji- 
centia  loqucndi).     3  Bla.  Com.  299. 

CONGEABLE  (Fr.  congt,  permission, 
leave).  Lawful,  or  lawfully  done,  or  done 
with  permission ;  as,  entry  congeable  and 
the  like.     Littleton,  §  279. 

CONGREGATION.  A  society  of  a  number 
of  persons  who  compose  an  ecclesiastical 
body. 

Certain  bureaus  at  Rome,  where  ecclesias- 
tical  matters  are  attended  to. 

In  the  United  States,  the  members  of  a 
particular  church  wbo  meet  in  one  place  to 
worship.  See  Robertson  v.  Bullions,  9  Barb. 
(N.  Y.)   G4. 

CONGRESS.  An  assembly  of  deputies  con- 
vened from  different  governments  to  treat 
of  peace  or  of  other  international  affairs ; 
as  the  Congress  of  Berlin  to  settle  the  terms 
of  peace  between  Russia  and  Turkey  in 
1878;  composed  of  representations  of  the 
great  Powers  of  Europe. 

In  theory  a  congress  may  conclude  a 
treaty,  while  a  conference  is  for  consulta- 
tion, and  its  result,  ordinarily  a  protocol, 
prepares  the  way  for  a  treaty.  See  Cent. 
Diet.;  Encyc.  Diet.  But  this  is  not  always 
true,  as  the  Berlin  conference  of  l^s'.i  was 
composed  of  plenipotentiaries  and  its  delib- 
erations resulted  in  a   treaty. 

The  legislative  body  of  the  United  States, 
composed  of  the  senate  and  house  of  repre- 
sentatives {q.  v.).    U.  S.  Const,  art.  1,  §  1. 

Each  house  is  the  judge  of  the  election  and  qual- 
ifications of  its  members.  A  majority  of  each  house 
is  a  quorum ;  but  a  smaller  number  may  adjourn 
from  day  to  day,  and  compel  the  attendance  of  ab- 
sent members.  Each  house  may  make  rules,  punish 
its  members,  and  by  a  two-thirds  vote  expel  a  mem- 
ber. Each  house  must  keep  a  journal  and  publish 
the  same,  excepting  such  parts  as  may,  in  their 
judgment,  require  secrecy,  and  record  the  yeas  and 
nays  at  the  desire  of  one-fifth  of  the  members  pres- 
ent. Art.  1,  s.  5.  A  court  is  bound  to  assume  that 
the  journal  speaks  the  truth  and  cannot  receive  oral 
testimony  to  impeach  its  correctness  ;  U.  S.  v.  Bal- 
lin,  144  U.  S.  1,  12  Sup.  Ct.  607,  36  L.  Ed.  321. 

The  members  of  both  houses  are  in  all  cases,  ex- 
cept treason,  felony,  and  breach  of  the  peace,  priv- 
ileged from  arrest  while  attending  to  and  returning 
from  the  session  of  their  respective  houses ;  and  no 
member  can  be  questioned  in  any  other  place  for 
any  speech  or  debate  in  either  house.  U.  S.  Const, 
art.    1,    s.    6. 

Whether  a  senator  of  the  United  States  has  waiv- 
ed his  privilege  from  arrest  and  whether  such  priv- 
ilege is  personal  or  given  for  the  purpose  of  al- 
ways securing  the  representation  of  his  state  in  the 
senate  are  questions  which  can  be  raised  by  writ 
of  error  directly  to  the  district  court ;  Burton  v. 
U.   S.,  196  U.   S.  2S3,  25  Sup.   Ct.   243,   49   L.    Ed.  4S2. 

Each  house  of  congress  has  claimed  and  exercised 
the  power  to  punish  contempts  and  breaches  of 
its  privileges,  on  the  ground  that  all  public  func- 
tionaries are  essentially  invested  with  the  powers  of 
self-preservation,  and  that  whenever  authorities  are 
given,  the  means  of  carrying  them  into  execution 
are  given  by  necessary  implication.  Jefferson, 
Manual,  §  3,  art.  Privilege;  Duane's  Case,  Senate 
Proceedings,  Gales  and  Seaton's  Annals  of  Cong., 
6th  Congress,  pp.  122,  1S4;  Wolcott's  Case,  Journal 
Hou.  Reps.  1st  Sess.  35th  Congress,  pp.  371,  386,  535. 
Irwin's  Case,  2d  Sess.  43d  Congress,  Index.     In  Kil- 


bourn's  Case,  103  U.  S.  168,  26  L.  Ed.  377.  it  wa  = 
held  that  although  the  house  can  punish  its  own 
members  for  disorderly  conduct  or  for  failure  to 
attend    its   sessions,    and   can   dectd  if   con- 

tested elections  and  determine  the  qualifications  of 
its   members,    and   exercise   the   sole    power   of   Im- 
peachment of  officers  of  the  government,   and  may, 
when   the  examination  of  witnesses   is  n-  c<  ssary  to 
the  performance  of  these  duties,  fine  or 
contumacious    witness,— there    is    not    found    In    the 
constitution    any    general    power    vested    In 
house   to    punish    for    contempt.      The    order   of   the 
house   ordering   the  imprisonment   of  a   witri' 
refusing  to  answer  certain  questions  put  to  him  by 
the  house,  concerning  the  business  of  a   i 

hip  of  which  he  was  a  member,  and  to  pro- 
duce certain  books  in  relation  thereto,  was  held 
void  and  no  defence  on  the  part  of  the  sergeant-at- 
arms  in  an  action  by  the  witness  for  false  impris- 
onment. The  members  of  the  committee,  who  took 
no  actual  part  in  the  imprisonment,  were  held  not 
liable  to  such  action.  The  cases  in  which  the  pow- 
er had  been  exercised  are  numerous.  This  power, 
.-,  extends  no  further  than  Imprisonment ; 
and  that  will  continue  no  further  than  the  duration 
of  the  power  that  imprisons.  The  imprisonment 
will  therefore  terminate  with  the  adjournment  or 
dissolution  of  congress. 

The  rules  of  proceeding  in  each  house  are  sub- 
stantially the  same:  the  house  of  representatives 
choose  their  own  speaker;  the  vice-president  of  the 
United  States  is,  ex  officio,  president  of  the  senate. 
For  rules  of  proceeding,  see  Hind's  Precedents  of 
the  II.  of  R. 

When  a  bill  Is  engrossed,  and  has  received  the 
sanction  of  both  houses,  it  is  sent  to  the  president 
for  his  approbation.  If  he  approves  of  the  bill,  he 
signs  it.  If  he  does  not.  it  is  returned,  with  his  ob-  . 
jections,  to  the  house  in  which  it  originated,  and 
that  house  enters  the  objections  at  large  on  its 
journal  and  proceeds  to  reconsider  it.  If,  after 
such  reconsideration,  two-thirds  of  the  hous. 
to  pass  the  bill,  it  is  sent,  together  with  the  objec- 
tions, to  the  other  house,  by  which  it  Is  like* 
considered,  and,  if  approved  by  two-thirds  of  that 
house,  it  becomes  a  law.  But  in  all  such  cases  the 
votes  of  both  houses  are  determined  by  yeas  and 
nays,  and.  the  names  of  the  persons  voting  for  and 
against  the  bill  are  to  be  entered  on  the  journal  of 
each   house   respectively. 

If  any  bill  shall  not  be  returned  by  the  president 
within  ten  days  (Sundays  excepted)  after  it  shall 
have  been  presented  to  him,  the  same  shall  be  a 
law,  in  like  manner  as  if  he  had  sigut  d  It, 
the  congress  by  their  adjournment  prevent  its  re- 
turn; in  which  case  it  shall  not  be  a  law.  See 
Kent,  Lect.  XI. 

The  right  of  the  president  to  sign  a  bill  after  an 
adjournment  of  congress  although  within  ten  days 
of  its  passage,  has  been  inferentially  approved  by 
the  supreme,  court  on  four  different  occasions,  in 
connection  with  the  captured  and  abandoned  prop- 
erty act,  which  was  signed  by  the  presiu 
March  12,  1863,  and  after  the  adjournment  of  con- 
gress; Tobey  v.  Leonard,  2  Wall.  (U.  S.)  423,  17  L. 
Ed.  842;  U.  S.  v.  Anderson,  9  Wall.  (U.  S.)  50.,  19  L. 
Ed.  615;  U.  S.  v.  Klein,  13  Wall.  (U.  S.)  128, 
Ed.  519.  Upon  this  point  the  court  of  claims  held 
that  a  bill  signed  by  the  president  after  the  usual 
adjournment  of  congress  for  the  winter  holidays, 
but  within  ten  days  from  the  time  when  it  was  pre- 
sented to  him,  was  duly  approved  within  the 
and  meaning  of  the  constitution;  U.  S.  v.  Alice 
Well,  29  Ct.   CI.  52;'.. 

The  house  of  representatives  has  the  exclusive 
right  of  originating  bills  for  raising  revenue;  and 
this  is  the  only  privilege  that  house  enjoys  in  its 
legislative  character  which  is  not  shared  equally 
with  the  other;  and  even  those  bills  are  amendable 
by  the  senate  in  its  discretion;    Art.  1,  s.  7. 

One  of  the  houses  cannot  adjourn,  during  the 
session  of  congress,  for  more  than  three  days  with- 
out the  consent  of  the  other ;  nor  to  any  other 
place  than  that  in  which  the  two  houses  shall  be  sit- 
ting ;    Art.  1,  a.  6. 


CONGRESS 


608 


CONNIVANCE 


All  the  legislative  powers  granted  by  the  consti- 
tution of  the  United  States  or  necessarily  implied 
from  those  granted,  are  vested  in  the  congress. 

CONJECTIO  CAUS/E.  In  Civil  Law.  A 
statement  of  the  case.  A  brief  synopsis  of 
the  case  given  by  the  advocate  to  the  judge 
in  opening  the  trial.     Calvinus,  Lex. 

CONJECTURE.  A  slight  degree  of  cre- 
dence, arising  from  evidence  too  weak  or  too 
remote  to  cause  belief.  1  Muscardus,  De 
Prob.  quaest  14,  n.  14. 

An  idea  or  notion  founded  on  a  probability 
without  any  demonstration  of  its  truth. 

CONJOINTS.  Persons  married  to  each 
other.  Story,  Conti.  Laws,  §  71;  Wolffius, 
Droit  de  la  Nat.  §  858. 

CONJUGAL  RIGHTS.  See  Restitution 
op  Conjugal  Rights. 

CONJUNCTIVE.  Connecting  in  a  man- 
ner denoting  union. 

There  are  many  cases  in  law  where  the  conjunc- 
tive and  is  used  for  the  disjunctive  or,  and  vice 
versa. 

CONJUNCTIVE  OBLIGATION.  One  in 
which  the  several  objects  in  it  are  connect- 
ed by  a  copulative,  or  in  any  other  manner 
which  shows  that  all  of  them  are  severally 
comprised  in  the  contract.  This  contract 
creates  as  many  different  obligations  as 
there  are  different  objects;  and  the  debtor, 
when  he  wishes  to  discharge  himself,  may 
force  the  creditor  to  receive  them  separate- 
ly.    Civil  Code,  La.  §  2063. 

CONJURATION  (Lat.  a  swearing  togeth- 
er). A  plot,  bargain,  or  compact,  made  by  a 
number  of  persons  under  oath,  to  4o  some 
public  harm. 

Personal  conference  with  the  devil  or 
some  evil  spirit,  to  know  any  secret  or  effect 
any  purpose.  The  laws  against  conjuration 
and  witchcraft  were  repealed  in  1736.  Moz- 
ley  &  W.  Law  Diet. 

CONNECTICUT.  The  name  of  one  of  the 
original  states  of  the  United  States  of 
America. 

It  was  not  until  the  year  1665  that  the  whole  terri- 
tory now  known  as  the  state  of  Connecticut  was 
under  one  colonial  government.  The  charter  was 
granted  by  Charles  II.  in  April,  1662.  Previous  to 
that  time  there  had  been  two  colonies,  with  separate 
governments. 

As  this  charter  to  the  colony  of  Connecticut  em- 
braced the  colony  of  New  Haven,  the  latter  resisted 
it  until  about  January,  1665,  when  the  two  colonies, 
by  mutual  agreement,  became  indissolubly  united. 
In  1687,  Sir  Edmund  Andros  attempted  to  seize  and 
take  away  the  charter  ;  but  it  was  secreted  and  pre- 
served in  the  famous  Charter  Oak  at  Hartford,  and 
is  now  kept  in  the  office  of  the  secretary  of  state. 
1  Hollister,  Hist.  Conn.  315.  It  remained  in  force, 
with  a  temporary  suspension,  as  a  fundamental  law 
of  the  state,  until  the  present  constitution  was 
adopted.  Story,  Const.  386;  Comp.  Stat.  Conn.  Rev. 
of  1875,  iii.   xlv. 

The  present  constitution  was  adopted  on  the  15th 
of  September,  1818.  Seventeen  amendments  have 
been  adopted,  1823-1875;    also  in  1901  and  1905. 

CONNECTING  LINES.  See  Common  CAR- 
RIERS. 


CONNIVANCE.  An  agreement  or  consent, 
indirectly  given,  that  something  unlawful 
shall  be  done  by  another. 

Connivance  differs  from  condonation,  though  the 
same  legal  consequences  may  attend  It.  Conniv- 
ance necessarily  involves  criminality  on  the  part  of 
the  individual  who  connives;  condonation  may  take 
place  without  imputing  the  slightest  blame  to  the 
party  who  forgives  the  injury.  Connivance  must 
be  the  act  of  the  mind  before  the  offence  has  been 
committed;  condonation  is  the  result  of  a  deter- 
mination to  forgive  an  injury  which  was  not  known 
until  after  it  was  inflicted.     3  Hagg.  Bccl.  350. 

Connivance  differs,  also,  from  collusion:  the  for- 
mer is  generally  collusion  for  a  particular  pur- 
pose, while  the  latter  may  exist  without  conniv- 
ance.   3  Hagg.  Eccl.  130. 

The  connivance  of  the  husband  to  his 
wife's  prostitution  deprives  him  of  the  right 
of  obtaining  a  divorce,  or  of  recovering  dam- 
ages from  the  seducer;  Geary,  Mar.  &  Fam. 
R.  26S;  4  Term  657.  The  husband  may  ac- 
tively connive  at  the  adultery;  Myers  v.  My- 
ers, 41  Barb.  (N.  Y.)  114;  Hedden  v.  Hed- 
den,  21  N.  J.  Eq.  61 ;  or  he  may  passively ; 
5  Eng.  Ecc.  27;  3  Hagg.  Eccl.  87.  It  may  be 
satisfactorily  proved  by  implication.  See 
Shelf.  Mar.  &  Div.  449;  2  Bish.  Mar.  &  Div. 
§  6 ;  2  Hagg.  Eccl.  278,  376 ;  3  id.  58,  82,  107, 
119,  312;  Pierce  v.  Pierce,  3  Pick.  (Mass.) 
299,  15  Am.  Dec.  210;  Seagar  v.  Sligerland, 
2  Gaines  (N.  Y.)  219;  Masten  v.  Masten,  15 
N.  H.  161 ;  Herrick  v.  Herriek,  31  Mich.  300 ; 
In  re  Childs,  109  Mass.  407 ;  Cochran  v.  Coch- 
ran, 35  la.  477. 

A  husband  who  connives  at  or  consents  to 
adultery  by  his  wife  is  deemed  as  consenting 
to  it  with  others  and  cannot  have  a  divorce 
for  a  subsequent  act  with  a  different  person, 
though  the  act  connived  at  was  not  commit- 
ted ;  Hedden  v.  Hedden,  21  N.  J.  Eq.  61 ;  nor 
can  he  where  the  wife  was  led  into  it  by 
connivance  of  a  detective  employed  by  the 
husband,  not  for  such  purpose  but  to  obtain 
evidence;  Rademacher  v.  Rademacher,  74  N. 
J.  Eq.  570,  70  Atl.  687 ;  L.  R.  2  P.  &  D.  428. 
So  also  abandonment  by  the  wife,  knowing 
(as  she  said  she  did)  that  the  husband 
would  naturally  seek  other  women,  was  held 
to  be  connivance;  Richardson  v.  Richardson, 
114  N.  Y.  Supp.  912.  Where  a  husband  wil- 
fully abstains  from  any  attempt  to  prevent 
misconduct  which  he  must  know  is  likely  to 
occur,  he  is  held  to  have  connived  at  such 
misconduct;  33  L.  J.  Mat.  Cas.  161.    . 

C0NN0ISSEMENT.     In    French    Law.     An 

instrument,  signed  by  the  master  of  a  ship 
or  his  agent,  containing  a  description  of  the 
goods  loaded  on  a  ship,  the  persons  who  have 
sent  them,  the  persons  to  whom  they  were 
sent,  and  the  undertaking  to  transport  them. 
A  bill  of  lading.  Guyot,  R&pert.  Univ.;  Ord. 
de  la  Marine,  1.  3,  t.  3,  art.  1. 

CONNUBIUM  (Lat).  A  lawful  marriage. 
See  Marriage;  Concubinatus. 

C0N0CIM1ENT0.      In     Spanish     Law.      A 

bill  of  lading.  In  the  Mediterranean  ports 
it  is  called  poliza  de  cargamiento. 


CONQUEST 


609 


CONQUETS 


CONQUEST  (Lat.  conquiro,  to  seek  for). 
In  Feudal  Law.  Purchase;  any  means  of 
obtaining  an  estate  out  of  the  usual  course 
of  inheritance. 

The  estate  itself  so  acquired. 

According  to  Blackstone  and  Sir  Henry  Spelman, 
the  word  in  its  original  meaning  was  entirely  dis- 
sociated from  any  connection  with  the  modern  idea 
of  military  subjugation,  but  was  used  solely  in  the 
sense  of  purchase.  It  is  difficult  and  quite  profit- 
less to  attempt  a  decision  of  the  question  which  has 
arisen,  whether  it  was  applied  to  William's  ac- 
quisition of  England  in  its  original  or  its  popular 
meaning.  It  must  be  allowed  to  offer  a  very  reason- 
able explanation  of  the  derivation  of  the  modern 
signification  of  the  word,  that  it  was  still  used  at 
that  time  to  denote  a  technical  purchase — the  prev- 
alent method  of  purchase  then,  and  for  quite  a 
long  period  subsequently,  being  by  driving  off  the 
occupant  by  superior  strength.  The  operation  of 
making  a  conquest,  as  illustrated  by  William  the 
Conqueror,  was  no  doubt  often  afterwards  repeated 
by  his  followers  on  a  smaller  scale  ;  and  thus  the 
modern  signification  became  established.  On  the 
other  hand,  it  would  be  much  more  difficult  to  de- 
rive a  general  signification  of  purchase  from  the 
limited  modern  one  of  military  subjugation.  But 
the  whole  matter  must  remain  mainly  conjectural  ; 
and  it  Is  undoubtedly  going  too  far  to  say,  with 
Burrill,  that  the  meaning  assigned  by  Blackstone 
Is  "demonstrated,"  or,  with  Wharton,  that  the 
same  meaning  is  a  "mere  idle  ingenuity."  Fortu- 
mately,  the  question  Is  not  of  the  slightest  impor- 
tance  in  any   respect. 

See  17  L.  Q.   R.  392. 

In  International  Law.  The  acquisition  of 
the  sovereignty  of  a  country  by  force  of 
arms,  exercised  by  an  independent  power 
which  reduces  the  vanquished  to  submission 
to  its  empire. 

The  intention  of  the  conqueror  to  retain 
the  conquered  territory  is  generally  manifest- 
ed by  formal  proclamation  of  annexation, 
and  when  this  is  combined  with  a  recognized 
ability  to  retain  the  conquered  territory,  the 
transfer  of  sovereignty  is  complete.  A  treaty 
of  peace  based  upon  the  principle  of  uti  pos- 
8id<tis  (q.  v.)  is  formal  recognition  of  con- 
quest. 

The  effects  of  conquest  are  to  confer  upon 
the  conquering  state  the  public  property  of 
the  conquered  state,  and  to  invest  the  for- 
mer with  the  rights  and  obligations  of  the 
latter ;  treaties  entered  into  by  the  conquer- 
ed state  with  other  states  remain  binding 
upon  the  annexing  state,  and  the  debts  of 
the  extinct  state  must  be  taken  over  by  it. 
Conquest  likewise  invests  the  conquering 
state  with  sovereignty  over  the  subjects  of 
the  conquered  state.  .Among  subjects  of  the 
conquered  state  are  to  be  included  persons 
domiciled  in  the  conquered  territory  who 
remain  there  after  the  annexation.  The 
people  of  the  conquered  state  change  their 
allegiance  but  not  their  relations  to  one  an- 
other. Leitensdorfer  v.  Webb,  20  How.  (U. 
S.)  176,  15  L.  Ed.  S91. 

After  the  transfer  of  political  jurisdiction 
to  the  conqueror  the  municipal  laws  of  the 
territory  continue  in  force  until  abrogated 
by  the  new  sovereign.  American  Ins.  Co.  y. 
Canter,  1  Pet.  (U.  S.)  511,  7  L.  Ed.  242. 
Bouv.— 39 


CONQUESTS.  In  French  Law.  The  name 
given  to  every  acquisition  which  the  hus- 
band and  wife,  Jointly  or  severally,  make 
during  the  conjugal  community.  Thus,  what- 
ever is  acquired  by  the  husband  and  wife, 
either  by  his  or  her  industry  or  good  fortune, 
enures  to  the  extent  of  one  half  for  the  ben- 
efit of  the  other.  Merlin,  1  qu(t; 
Merlin,  Quest.,  ConquCt.  In  Louisiana,  these 
gains  are  called  acquets.  La.  Civ.  Code,  art 
2389.  The  conquests  by  a  former  marriage 
may  not  be  settled  on  a  second  wife  to  prej- 
udice the  heirs;  2  Low.  C.  17.". 

CONSANGUINEOUS  FRATER.  A  broth- 
er who  has  the  same  father.  2  Bla.  Com. 
231. 

CONSANGUINITY  (Lat  consanguis,  blood 
together). 

The  relation  subsisting  among  all  the  dif- 
ferent persons  descending  from  the  same 
stock  or  common  ancestor.  See  Sweezey  v. 
Willis.  1  Brad.  Surr.  R.   (N.  Y.)   495. 

Having  the  blood  of  some  common  ances- 
tor.    Pdodget  v.  Brinsmald,  9  Vt  30. 

Collateral  consanguinity  is  the  relation 
subsisting  among  persons  who  descend  from 
the  same  common  ancestor,  but  not  from 
each  other.  It  is  essential,  to  constitute  this 
relation,  that  they  spring  from  the  same  com- 
mon root  or  stock,  but  in  different  branches. 

Lineal  consanguinity  is  that  relation  which 
exists  among  persons  where  one  is  descended 
from  the  other,  as  between  the  son  and  the 
father,  or  the  grandfather,  and  so  upward 
in  a  direct  ascending  line;  and  between  the 
father  and  the  son,  or  the  grandson,  and  bo 
downwards  in  a  direct  descending  line. 

In  computing  the  degree  of  lineal  con- 
sanguinity existing  between  two  pi 
ery  generation  in  the  direct  course  of  rela- 
tionship between  the  two  parties  makes  a 
degree;  and  the  rule  is  the  same  by  the  can- 
on, civil,  and  common  law. 

The  mode  of  computing  degrees  of  collat- 
eral consanguinity  at  the  common  and  by 
the  canon  law  is  to  discover  the  common 
ancestor,  to  begin  with  him  to  reckon  d 
wards,  and  the  degree  the  two  perso; 
the  more  remote  of  them,  is  distant 
the  ancestor,  is  the  degree  of  kindred  sub- 
sisting between  them.  For  instance,  two 
brothers  are  related  to  each  other  In  the 
first  degree,  because  from  the  father  to  each 
of  them  is  one  degree.  An  uncle  and  a 
nephew  are  related  to  each  oilier  in  the  sec- 
ond degree,  because  the  nephew  is  two  de- 
grees distant  from  the  common  ancestor; 
and  the  rule  of  computation  is  extended  bo 
the  remotest  degrees  of  collateral  relation- 
ship. 

The  method  of  computing  by  the  civil  law 
is  to  begin  at  cither  of  the  persons  in  ques- 
tion, and  count  up  to  the  common  ancestor, 
and  then  downwards  to  the  other  person, 
calling  it  a  degree  for  each  person,  both  as- 


CONSANGUINITY 


610 


CONSCRIPTION 


cending  and  descending,  and  the  degrees  they 
stand  from  each  other  is  the  degree  in 
which  they  stand  related.  Thus,  from  a 
nephew  to  his  father  is  one  degree;  to  the 
grandfather,  two  degrees ;  and  then  to  the 
uncle  three;  which  points  out  the  relation- 
ship. 

The  following  table,  in  which  the  Roman 
numeral  letters  express  the  degrees  by  the 
civil  law,  and  those  in  Arabic  figures  those 
by  the  common  law,  will  fully  illustrate  the 
subject. 

The  mode  of  the  civil  law  is  preferable, 
for  it  points  out  the  actual  degree  of  kindred 
in  all  cases ;  by  the  mode  adopted  by  the 
common  law,  different  relations  may  stand 
in  the  same  degree.  The  uncle  and  nephew 
stand  related  in  the  second  degree  by  the 
common  law,  and  so  are  two  first  cousins, 
or  two  sons  of  two  brothers ;  but  by  the  civil 
law  the  uncle  and  nephew  are  in  the  third 
degree,  and  the  cousins  are  in  the  fourth. 
The  mode  of  computation,  however,  is  im- 
material ;  for  both  will  establish  the  same 
person  to  be  the  heir;  2  Bla.  Com.  202. 


CONSCRIPTION.  A  compulsory  enrol- 
ment of  men  for  military  service;  draft. 
The  body  of  conscripts.     Stand.  Diet. 

A  military  force  was  raised  by  conscrip- 
tion under  the  acts  of  July  17,  18G2,  March 
3,  18G3,  and  February  10,  1864.  They  pro- 
vided for  a  national  enrolment  under  the  au- 
thority of  the  United  States,  for  an  appor- 
tionment of  quotas  among  the  states,  and 
authorized  the  quotas  to  be  obtained  in  the 
several  districts  into  which  the  states  were 
divided.  Certain  classes  of  persons  were  ex- 
empt, and  drafted  men  were  released  upon 
furnishing  acceptable  substitutes  or  by  the 
payment  of  a  statutory  sum  of  money.  Dav- 
is, Mil.  Law.  51. 

CONSEIL  D'ETAT.  This  is  one  of  the 
oldest  of  French  institutions,  its  origin  dat- 
ing back  to  1302.  Under  a  law  of  1879  it 
was  reorganized  as  follows:  President,  the 
keeper  of  the  seals,  who  at  the  same  time 
is  invariably  the  Minister  of  Justice.  There 
are  thirty-two  councillors  (ordinary)  and 
eighteen    councillors     (extraordinary)     and 


rv. 

Great-gran  d  father's 

father. 

4 

\ 

m. 

Great-grandfather. 
3 

1 

V. 
Great-grandun  cle. 

4 

\ 

II. 

Grandfather. 
2 

TV. 

Great-uncle. 

3 

\ 

\ 

I. 

Father. 
1 

in. 

Uncle. 
2 

V. 

Great-uncle's  son. 

\ 

\ 

\ 

Intestate  or  person 
proposed. 

H. 

Brother. 
1 

IV. 

Cousin  -german. 
2 

VI. 

Second  cousin. 

3 

\ 

\ 

I. 

Son. 
1 

III. 

Nephew. 

2 

V 

V. 

Son  of  the  cousin- 

german. 

3 

\ 

n. 

Grandson. 
2 

IV. 

Son  of  the  nephew, 

or  brother's 

grandson. 

3 

*•                                ■— ' 

ID. 

Great-grandson, 
3 

CONSEIL  D'ETAT 


611 


CONSENT 


thirty  assistant  councillors.  It  decides  upon 
state  questions  and  measures  proposed  for 
legislation,  submitted  to  it  by  the  President 
of  the  Republic  and  by  the  members  of  the 
Cabinet.  It  advises  in  connection  with  bills 
submitted  by  Parliament  for  its  considera- 
tion and  bills  prepared  by  the  government, 
and  proposed  decrees.  Matters  relating  to 
public  administration  come  within  the  scope 
of  its  duties.     Coxe,  Manna!  of  French  Law. 

CONSEILLE  DE  FAMILLE  (Fr.).  A 
family  council,  which  see. 

CONSENSUAL  CONTRACT.  In  Civil  Law. 
A  contract  completed  by  the  consent  of  the 
parties  merely,   without  any  further  act. 

The  contract  of  Bale,  among  the  civilians,  Is  an 
example  of  a  consensual  contract,  because  the 
moment  there  Is  an  agreement  between  the  seller 
and  the  buyer  as  to  the  thing  and  the  price,  the 
vendor  and  the  purchaser  have  reciprocal  actions. 
On  the  contrary,  on  a  loan,  there  Is  no  action  by 
the  lender  or  borrower,  although  there  may  have 
been  consent,  until  the  thing  Is  delivered  or  the 
money  counted  ;  Pothier,  Obi.  pt.  1,  c.  1,  8.  1,  art. 
2;     1    Bell,   Comm.   435. 

CONSENSUS  AD  IDEM.  An  agreement 
of  parties  to  the  same  thing;  a  meeting  of 
minds.     See  Agreement. 

CONSENT  (Lat,  con,  with,  together,  sen- 
tire,  to  feel).     A  concurrence  of  wills. 

Express  consent  is  that  directly  given,  ei- 
ther viva  voce  or  in  writing. 

Implied  consent  is  that  manifested  by 
signs,  actions,  or  facts,  or  by  inaction  or 
silence,  from  which  arises  an  inference  that 
the  consent  has  been  given. 

Consent  supposes  a  physical  power  to  act, 
a  moral  power  of  acting,  and  a  serious,  de- 
termined, and  free  use  of  these  powers. 
Fonblanque,  Eq.  b.  1,  c.  2,  s.  1.  Consent  is 
Implied  in  every  agreement.  See  Agree- 
ment; Contract. 

Where  a  power  of  sale  requires  that  the 
sale  should  be  with  the  consent  of  certain 
specified  individuals,  the  fact  of  such  con- 
sent having  been  given  ought  to  be  evinced 
in  the  manner  pointed  out  by  the  creator  of 
the  power,  or  such  power  will  not  be  con- 
sidered as  properly  executed ;  10  Yes.  Ch. 
308,  378.  See  as  to  consent  in  vesting  or  di- 
vesting legacies;  2  V.  &  B.  234;  ::  Yes.  Ch. 
239 ;  12  id.  19 ;  3  Bro.  C.  C  145 ;  1  Sim.  &  S. 
172.  As  to  implied  consent  arising  from 
acts,  see  Estoppel  in  Pais. 

See  Hakm  Chand,  Law  of  Consent. 

In  Criminal  Law.  No  act  shall  he  deemed 
a  crime  if  done  with  the  consent  of  the  par- 
ty injured,  unless  it  be  committed  in  public, 
and  is  likely  to  provoke  a  breach  of  the 
peace,  or  tends  to  the  injury  of  a  third  par- 
ty ;  provided  no  consent  can  be  given  which 
will  deprive  the  consenter  of  any  Inalienable 
right;  A.  &  E.  Encyc;  Desty,  Cr.  L.  §  33. 
The  one  who  gives  consent  must  be  capable 
of  doing  so ;  1  Whar.  Cr.  L.  §  14G ;  Hadden 
v.  People,  25  N.  Y.  373,     But  by  statutes  in 


various  states  a  female  child  under  a  cer- 
tain specified  age  cannot  consent  to  sexual 
intercourse.     See  Rape. 

CONSENT  JUDGMENT.  One  entered  by 
agreement  of  the  parties. 

Proceedings  at  the  instance  of  one  party 
to  a  cause  are  not  taken  by  .  simply 

because  the  other  party  had  notice  and  -lid 
not  object;  Jennings  v.  R.  Co.,  218  U.  8. 
31  Sup.  Ct  1,  54  L  Ed.  103L 

CONSENT  RULE.  An  entry  of  record  by 
the  defendant,  confessing  the  lease,  entry, 
and  ouster  by  the  plaintiff,  in  an  action  of 
ejectment.  This  was.  until  recently,  u 
England,  and  still  is  in  those  states  in  which 
ejectment  is  still  retained  as  a  means  of  ac- 
quiring possession  of  land. 

The  consent  rule  contains  the  following 
particulars,  viz.:  first,  the  person  appear' 
ing  consents  to  be  made  defendant  instead 
of  the  casual  ejector ;  second,  he  agrees  to 
appear  at  the  suit  of  the  plaintiff,  and,  If 
the  proceedings  are  by  bill,  to  file  common 
bail;  third,  to  receive  a  declaration  in 
ment,  and  to  plead  not  guilty;  fourth,  at  the 
trial  of  the  case,  to  confess  lease,  entry,  and 
ouster,  and  to  insist  upon  his  title  only ; 
fifth,  that  if,  at  the  trial,  the  party  appear- 
ing shall  not  confess  lease,  entry,  and  ouster, 
whereby  the  plaintiff  shall  not  be  able  to 
prosecute  his  suit,  such  party  shall  pay  to 
the  plaintiff  the  cost  of  the  rum  pros.,  and 
suffer  judgment  to  be  entered  against  the 
casual  ejector;  sixth,  that  if  a  verdict  shall 
be  given  for  the  defendant,  or  the  plaintiff 
shall  not  prosecute  his  suit  for  any  other 
cause  than  the  non-confession  of  lease,  en- 
try, and  ouster,  the  lessor  of  the  plaintiff 
shall  pay  costs  to  the  defendant;  seventh, 
that,  when  the  landlord  appears  alone,  the 
plaintiff  shall  be  at  liberty  to  sign  judgment 
immediately  against  the  casual  ejector,  but 
that  execution  shall  be  stayed  until  the 
court  shall  further  order;  Ad.  Eject.  "_'."". 
See,  also,  Jackson  v.  Stiles,  2  Cow.  (N.  Y.) 
442;  Jackson  v.  Denniston,  4  Johns.  (N.  Y.) 
311. 

CONSENTIBLE    LINES.     See  Line. 

CONSEQUENTIAL  DAMAGES.  Those 
damages  which  arise  not  from  the  Immedi- 
ate act  of  the  party,  but  as  an  Incidental 
consequence  of  such  act.     See  Dam.v 

CONSERVATOR  (Lat  oonservare,  to  pre- 
serve). A  preserver;  one  whose  business  it 
is  to  attend  to  the  enforcement  of  certain 
statutes. 

A  delegated  umpire  or  standing  arbitra- 
tor, chosen  to  compose  and  adjust  difficulties 
arising  between  two  parties.     CowelL 

A  guardian.  So  used  in  Connecticut. 
Woodford  v.  Webster.  3  Day  (Conn.)  47U : 
Treat  v.  Peck.  .">  Conn.  L'vi ;  Hutehins  v.  John- 
son, 12  Conn.  370,  30  Am.  Dec.  022. 

See  Conservator  Trucis. 


CONSERVATOR  OF  THE  PEACE 


612 


CONSIDERATION 


CONSERVATOR    OF    THE    PEACE.        He 

who  hath  an  especial  charge,  by  virtue  of 
his  office,  to  see  that  the  king's  peace  be 
kept. 

Before  the  reign  of  Edward  III.,  who  created 
Justices  of  the  peace,  there  were  sundry  persons 
interested  to  keep  the  peace,  of  whom  there  were 
two  classes:  one  of  which  had  the  power  annexed 
to  the  office  which  they  hold;  the  other  had  it  mere- 
ly by  itself,  and  were  hence  called  wardens  or  con- 
servators of  the  peace.  Lambard,  Eirenarchia,  1.  1, 
c.  3.  This  latter  sort  are  superseded  by  the  modern 
Justices  of  the  peace;    1  Bla.  Com.  349. 

The  king  was  the  principal  conservator  of  the 
peace  within  all  his  dominions.  The  lord  chancel- 
lor or  keeper,  the  lord  treasurer,  the  lord  high 
steward,  the  lord  marshal  and  lord  high  constable, 
all  the  Justices  of  the  court  of  king's  bench  (by  vir- 
tue of  their  offices),  and  the  master  of  the  rolls  (by 
prescription)  were  general  conservators  of  the  peace 
throughout  the  whole  kingdom,  and  might  commit 
all  breakers  of  it,  or  bind  them  in  recognizances  to 
keep  it:  the  other  Judges  were  only  so  in  their  own 
courts.  The  coroner  was  also  a  conservator  of  the 
peace  within  his  own  county,  as  also  the  sheriff,  and 
both  of  them  might  take  recognizances  or  security 
for  the  peace.  Constables,  tythingmen,  and  Justices 
of  the  peace  were  also  conservators  of  the  peace 
within  their  own  jurisdiction;  and  might  apprehend 
all  breakers  of  the  peace,  and  commit  them  until 
they  found  sureties  for  their  keeping  it.  See  Steph- 
en, Hist.  Cr.  L.  110 ;  Burns  Justice ;  19  State  Tr. 
(Judgment  of  Lord   Camden). 

The  judges  and  other  similar  officers  of 
the  various  states,  and  also  of  the  United 
States,  are  conservators  of  the  public  peace, 
being  entitled  "to  hold  to  the  security  of  the 
peace  and  during  good  behavior." 

The  Constitution  of  Delaware  (1831)  pro- 
vides that :  "The  members  of  the  senate  and 
house  of  representatives,  the  chancellor,  the 
judges,  and  the  attorney-general  shall,  by 
virtue  of  their  offices,  be  conservators  of  the 
peace  throughout  the  state ;  and  the  treasur- 
er, secretary,  and  prothonotaries,  registers, 
recorders,  sheriffs,  and  coroners,  shall,  by 
virtue  of  their  offices,  be  Conservators  there- 
of within  the  counties  respectively  in  which 
they  reside." 

CONSERVATOR  TRUCIS  (Lat).  An  of- 
ficial appointed  under  an  English  act  of  1414 
passed  to  prevent  breaches  of  truces  made, 
or  of  safe  conducts  granted,  by  the  king.  2 
Holdsw.   Hist.   E.   L.   392. 

Such  offences  are  declared  to  be  treason, 
and  such  officers  are  appointed  in  every  port, 
to  hear  and  determine  such  cases,  "accord- 
ing to  the  ancient  maritime  law  then  prac- 
tised in  the  admiral's  court  as  may  arise 
upon  the  high  seas,  and  with  two  associates 
to  determine  those  arising  upon  land."  4 
Bla.  Com.  69. 

CONSIDER,  CONSIDERED.  See  Consid- 
er atum  est  per  Curiam. 

CONSIDERATION.  An  act  or  forbear- 
ance, or  the  promise  thereof,  which  is  offer- 
ed by  one  party  to  an  agreement,  and  accept- 
ed by  the  other  as  an  inducement  to  that 
other's  act  or  promise.    Poll.  Contr.  91. 

Blackstone  defines  it  to  be  the  reason 
which  moves  a  contracting  party  to  enter 
into  a  contract  (2  Com.  443)  ;  Burgher  v.  R. 


Co.,  139  Mo.  App.  62,  120  S.  W.  673 ;  but  this 
definition  is  manifestly  defective  because  it 
is  within  the  distinction  taken  by  Patteson, 
J.,  who  says:  "It  is  not  to  be  confounded 
with  motive,  which  is  not  the  same  thing  as 
consideration.  The  latter  means  something 
which  is  of  value  in  the  eye  of  the  law,  mov- 
ing from  the  plaintiff,  either  of  benefit  to 
the  plaintiff  or  of  detriment  to  the  defend- 
ant;" Langd.  Sel.  Cas.  Contr.  168;  s.  c.  2 
Q.  B.  851.  In  distinguishing  between  con- 
sideration and  motive  a  helpful  criterion  is 
to  be  found  in  the  expression  "nothing  is 
consideration  that  is  not  regarded  as  such 
by  both  parties ;"  Philpot  v.  Gruninger,  14 
Wall.  (U.  S.)  570,  577,  20  L.  Ed.  743;  Ellis 
v.  Clark,  110  Mass.  389,  14  Am.  Rep.  609; 
Sterne  v.  Bank,  79  Ind.  549,  551. 

The  price,  motive,  or  matter  of  inducement 
to  a  contract, — whether  it  be  the  compensa- 
tion which  is  paid,  or  the  inconvenience 
which  is  suffered  by  the  party  from  whom 
it  proceeds.  A  compensation  or  equivalent, 
A  cause  or  occasion  meritorious,  requiring 
mutual  recompense  in  deed  or  in  law.  Viner, 
Abr.  Consideration   (A). 

Consideration,  in  a  contract,  is  the  quid 
pro  quo  that  the  party  to  whom  the  promise 
is  made  does  or  agrees  to  do  in  exchange  for 
the  contract.  Phoenix  Mut.  Life  Ins.  Co.  v. 
Raddin,  120  U.  S.  197,  7  Sup.  Ct,  500,  30 
L.  Ed.  644.  See  also  Pollock,  Contracts 
(1902  Ed.). 

It  is  also  defined  as  "any  act  of  the  plaintiff  from 
which  the  defendant  or  a  stranger  derives  a  benefit 
or  advantage,  or  any  labor,  detriment,  or  inconven- 
ience sustained  by  the  plaintiff,  however  small,  if 
such  act  is  performed  or  inconvenience  suffered  by 
the  plaintiff  by  the  consent,  express  or  implied,  of 
the  defendant."  Tindal,  C.  J.,  in  3  Scott  250.  Ac- 
cording to  Kent  it  must  be  given  in  exchange,  mu- 
tual, an  inducement  to  the  contract,  lawful,  and 
of  sufficient  value,  with  respect  to  the  assumption. 
2  Com.  464. 

"The  name  consideration  appeared  only  about  the 
16th  century,  and  we  do  not  know  by  what  steps  it 
became  a  settled  term  of  art."  Pollock  Contr.  170. 
That  it  was  not  borrowed  from  equity  as  a  modifi- 
cation of  the  Roman  Law  causa,  see  Causa.. 

Concurrent  considerations  are  those  which 
arise  at  the  same  time  or  where  the  prom- 
ises are  simultaneous  and  reciprocal. 

Continuing  considerations  are  those  which 
consist  of  acts  wbich  must  necessarily  con- 
tinue over  a  considerable  period  of  time. 

Executed  considerations  are  acts  done  or 
values  given  at  the  time  of  making  the 
contract.    Leake,  Contr.  18,  612. 

Executory  considerations  are  promises  to 
do  or  give  something  at  a  future  day.    Ibid. 

Good  considerations  are  those  of  blood, 
natural  love  or  affection,  and  the  like. 

Motives  of  natural  duty,  generosity,  and  prudence 
come  under  this  class;  2  Bla.  Com.  297;  Batty  v. 
Carswell,  2  Johns.  (N.  Y.)  52;  Ewing  v.  Ewing,  2 
Leigh  (Va.)  337;  Carpenter  v.  Dodge,  20  Vt.  595; 
1  C.  &  P.  401;  Doran  t.  McConlogue,  150  Pa.  98, 
24  Atl.  357 ;  Mascolo  v.  Montesanto,  61  Conn.  50, 
23  Atl.  714,  29  Am.  St.  Rep.  170.  The  only  purpose 
for  which  a  good  consideration  may  be  effectual  is 
to  support  a  covenant  to  stand  seized  to  uses,  in 
favor  of   wife,  child  or  blood  relation.     It  Is  good 


CONSIDERATION 


613 


CONSIDERATION 


against  a  grantor  when  It  has  been  executed  ;  Chlt- 
ty,  Contr.  28;  so  of  a  gift;  Candee  v.  Savings 
Bank,  81  Conn.  372,  71  Atl.  551,  22  L.  R.  A.  (N.  S.) 
568;  but  may  be  void  against  creditors  and  subse- 
quent bona  fide  purchasers  for  value;  Stat.  27  Eliz. 
C  4;  10  B.  &  C.  606;  Patterson  v.  Mills,  69  la.  755, 
28  N.  W.  53;  Shep.  Touchst.  512;  Leake  Contr.  442. 
The  term  Is  sometimes  used  In  the  sense  of  a 
consideration  valid  in  point  of  law;  and  It  then  in- 
cludes a  valuable  as  well  as  a  meritorious  consid- 
eration; Hodgson  v.  Butts,  3  Cra.  (U.  S.)  140,  2  L. 
Ed.  391;  Lang  v.  Johnson,  24  N.  H.  302;  2  Madd. 
430;  3  Co.  81;  Ambl.  598.  Generally,  however,  good 
Is  used  In  antithesis  to  valuable. 

Illegal  consideration*  are  acts,  which  if 
done  or  promises  which  if  enforced,  would 
be  prejudicial  to  the  public  interest.  Har- 
riman,  Cont  101. 

Impossible  considerations  are  those  which 
cannot  be  performed. 

Moral  considerations  are  such  as  are  bas- 
ed upon  a  moral  duty. 

Past  consideration  is  an  act  done  before 
the  contract  is  made,  and  is  ordinarily  by 
itself  no  consideration  for  a  promise;  An- 
son, Contr.  82.  Pollock  considers  that 
whether  a  past  benefit  is,  in  any  case,  a 
good  consideration  is  a  question  not  free 
from  uncertainty.  On  principle  it  should 
not  be.  Possible  exceptions  might  be  ser- 
vices rendered  on  request,  without  deQnite 
promise  of  reward  (see  Hob.  105)  and  vol- 
untarily doing  something  which  one  was 
legally  bound  to  do.  Also  a  promise  to  pay 
a  debt  barred  by  the  statute  of  limitations ; 
but  he  considers  that  none  of  these  excep- 
tions are  logical.     See  Poll.  Contr.  170. 

Valuable  considerations  are  either  some 
benefit  conferred  upon  the  party  by  whom 
the  promise  is  made,  or  upon  a  third  party 
at  his  instance  or  request;  or  some  detri- 
ment sustained,  at  the  instance  of  the  party 
promising,  by  the  party  in  whose  favor  the 
promise  is  made.  Doct.  &  Stud.  179;  Towns- 
ley  v.  Sumrall,  2  Pet.  (U.  S.)  182,  7  L.  Ed. 
386 ;  Violett  v.  Patton,  5  Cra.  (U.  S.)  142,  3 
L.  Ed.  61;  Wright  v.  Wright,  1  Litt.  (Ky.) 
183;  Powell  v.  Brown,  3  Johns.  (X.  Y.)  100; 
Brewster  v.  Silence,  8  N.  Y.  207 ;  Forster  v. 
Fuller,  6  Mass.  5S,  4  Am.  Dec.  87;  Lemas- 
ter  v.  Burckhart,  2  Bibb  (Ky.)  30;  Woold- 
ridge  v.  Cates,  2  J.  J.  Marsh.  (Ky.)  222; 
Parmer  v.  Stewart,  2  N.  II.  97;  Shenk  v. 
Mingle,  13  S.  &  R.  (Pa.)  29;  Tompkins  v. 
Philips,  12  Ga.  52;  Odineal  v.  Barry,  21 
Miss.  9;  Dunbar  v.  Bonesteel,  3  Scam.  (111.) 
33;  Taylor  v.  Meek,  4  Blackf.  (Ind.)  3SS ; 
3  C.  B.  321;  Hodge  v.  Powell,  96  N.  C.  67, 
2  S.  E.  1S2,  60  Am.  Rep.  401.  The  detri- 
ment to  the  promisee  must  be  a  detriment 
on  entering  into  the  contract  and  not  from 
the  breach  of  it;  Rldgway  v.  Grace,  2 
Misc.  293,  21  N.  Y.  Supp.  934. 

"A  valuable  consideration  may  consist 
either  in  some  right,  interest,  profit,  or  bene- 
fit accruing  to  one  party,  or  some  forbear- 
ance, detriment,  loss,  or  responsibility  giv- 
en, suffered,  or  undertaken  by  the  other." 
L.  R.  10  Ex.  162.  See  Train  v.  Gold,  5  Pick. 
(Mass.)  380. 


A  valuable  consideration  is  usually  in  some  way 
pecuniary,  or  convertible  into  money;  and  a  very 
slight  consideration,  provided  it  be  valuable  and  free 
from  fraud,  will  support  a  contract ;  Lawrence  v. 
McCalmont,  2  How.  (U.  S.)  426,  11  L.  Ed.  3^0;  Phelps 
v.  Stewart,  12  Vt.  259 ;  Upson  v.  Raiford,  29  Ala. 
188;  Harlan  v.  Harlan,  20  Pa.  303;  Sanborn  v. 
French,  22  N.  H.  246  ;  11  Ad.  &  E.  983  ;  Mathews  v. 
Meek,  23  Ohio  St.  292.  Valuable  considerations  are 
divided  by  the  civilians  into  four  classes,  which  are 
given,  with  literal  translations:  Do  ut  des  (I  give 
that  you  may  give),  Facio  ut  facias  (I  do  that  you 
may  do),  Facio  ut  des  (I  do  that  you  may  give), 
Do  ut  facias  (I  give  that  you  may  do). 

Consideration  has  been  treated  as  the 
very  life  and  essence  of  a  contract ;  and  a 
parol  contract  or  promise  for  which  there 
was  no  consideration  could  not  be  enforced 
at  law;  Reading  R.  R.  Co.  v.  Johnson,  7 
W.  &  S.  (Pa.)  317;  Plowd.  308;  Cumber  v. 
Wane,  1  Smith,  Lead.  Cas.  006;  Mos- 
by  v.  Leeds,  3  Call  (Va.)  439;  Cook  v. 
Bradley,  7  Conn.  57,  18  Am.  Dec.  79 ;  Brown 
v.  Adams,  1  Stew.  (Ala.)  51,  18  Am.  Dec.  36; 
Thacher  v.  Dinsmore,  5  Mass.  301,  4  Am. 
Dec.  61;  Burnet  v.  Bisco,  4  Johns.  (N.  Y.) 
235 ;  Perrine  v.  Cheeseman,  11  X.  J.  L.  174, 
19  Am.  Dec.  3S8;  Beverleys  v.  Holmes,  4 
Munf.  (Va.)  95;  Westmoreland  v.  Walk- 
er, 25  Miss.  76;  Chase  v.  Yaughan,  30  Me. 
412;  Goldsborough  v.  Gable,  140  111.  269, 
29  N.  E.  722,  15  L.  R.  A.  294;  McXutt  v. 
Loney,  153  Pa.  281,  25  Atl.  10SS ;  Bush  v. 
Rawlins,  89  Ga.  117,  14  S.  E.  886;  Xorth 
Atchison  Bank  v.  Gay,  114  Mo.  20.°..  21  s. 
W.  479 ;  Brooke,  Abr.  Ac/ton.  sur  le  Case. 
40;  such  a  promise  was  often  termed  a 
nudum  pactum  (ex  nudo  paeto  non  oritur 
actio),  or  nude  pact.  This  phrase  was  un- 
doubtedly borrowed  from  the  Roman  law, 
but  its  use  in  English  law  had  no  relation 
whatever  to  its  meaning  in  the  Roman ;  nor 
is  the  word  pact  of  the  latter  in  any  sense 
related  to  the  common-law  contract.  The 
nudum  pactum,  as  appeals  by  the  note  cited 
infra  from  Pollock,  had  not  anciently  in 
England  its  modern  signification  of  an  agree- 
ment without  consideration  in  the  sense  of 
the  maxim  quoted.  In  an  elaborate  note 
to  Pollock,  Contracts  673,  the  learned  author 
calls  attention  to  a  difference  between  con- 
sideration in  the  English  law  and  its  near- 
est continenial  analogies,  which  difference, 
he  says,  has  not  always  been  realized.  The 
actual  history  of  the  English  doctrine  is  ob- 
scure. The  most  we  can  affirm  is  that  the 
general  idea  was  formed  somewhere  in  the 
latter  part  of  the  fifteenth  century.  At  the 
same  time  or  a  little  later,  nudum  pactum 
lost  its  ancient  meaning  (viz.:  an  agree- 
ment not  made  by  specialty  so  as  to  support 
an  action  of  covenant  or  tailing  within  one 
of  certain  classes  so  as  to  support  an  ac- 
tion of  debt),  and  came  to  mean  what  it 
does  now.  The  word  consideration  in  the 
sense  now  before  us  came  into  use,  at  least 
as  a  settled  term  of  art,  still  later.  In  the 
early  writers,  consideration  always  means 
the  judgment  of  a  court. 


CONSIDERATION 


614 


CONSIDERATION 


The  early  cases  of  actions  of  assumpsit 
show  by  negative  evidence  which  is  almost 
conclusive  that  in  the  first  half  of  the  15th 
century,  the  doctrine  of  consideration  was 
quite  unformed,  though  the  phrase  quid 
pro  quo  is  earlier.  But  in  1459  there  was  a 
case  which  showed  that  an  action  of  debt 
would  then  lie  on  any  consideration  exe- 
cuted. In  the  Doctor  and  Student  (A.  D. 
1530)  we  find  substantially  the  modern  doc- 
trine. So  far  as  the  writer  of  that  work 
knows,  he  finds  the  first  full  discussion  of 
consideration  by  that  name  in  Plowden's 
report  of  Sharington  v.  Strotton,  Plowd.  298. 
The  question  of  consideration  was  of  im- 
portance in  the  learning  of  Uses  before  the 
statute,  and  the  reflection  is  obvious  that 
both  the  general  conception  and  the  name  of 
Consideration  have  had  their  origin  in  the 
court  of  chancery  in  the  law  of  uses  and 
have  been  thence  imported  into  the  law  of 
contracts  rather  than  developed  by  the  com- 
mon-law courts.  On  this  hypothesis,  a  con- 
nection with  the  Roman  causa  may  be  sug- 
gested with  some  plausibility.  But  see 
Causa. 

The  same  writer  proceeds  to  say  that  in 
the  process  thus  sketched  out  some  steps 
are  conjectural,  and  considers  that  the  ma- 
terials are  not  ripe  for  a  positive  conclu- 
sion and  will  not  be  until  the  unpublished 
records  of  mediaeval  English  law  shall  be 
competently  edited.  See  Holmes,  Common 
Law  253,  where  a  different  theory  of  the 
origin  of  consideration  is  given  as  being  a 
generalization  from  the  technical  require- 
ments of  the  action  of  debt  in  its  earlier 
form. 

The  theory  on  which  the  phrase  nudum 
pactum  was  wrongly  applied  was  that  the 
maxim  signified  that  a  gratuitous  promise 
to  do  or  pay  anything  on  the  one  side,  with- 
out any  compensation  on  the  other,  could 
only  be  enforced,  in  the  Roman  law,  when 
made  (or  clothed)  with  proper  words  or 
formalities — pactum  verbis  prescriptis  ves- 
titum;  Vinnius,  Com.  de  Inst.  lib.  3,  de 
verborum  obligationibus,  tit.  16,  p.  677; 
Cod.  lib.  7,  tit.  52.  This  solemnity  it  was 
argued  had  much  the  force  of  our  seal, 
which  imported  consideration,  as  it  was 
said,  meaning  that  the  formality  implied 
consideration  in  its  ordinary  sense  i.  e.,  de- 
liberation, caution,  and  fulness  of  assent; 
Hare,  Contr.  146;  3  Bingh.  Ill;  3  Burr. 
1639;  Wing  v.  Chase,  35  Me.  260;  Augusta 
Bank  v.  Hamblet,  35  Me.  491;  Erickson  v. 
Brandt,  53  Minn.  10,  55  N.  W.  62 ;  but  see 
Winter  v.  Goebner,  2  Colo.  App.  259,  30 
Pac.  51.  There  was,  however,  the  distinc- 
tion often  lost  sight  of  but  which  ought  to 
be  made  that  even  on  the  theory  that  the 
vitality  of  a  seal  was  solely  as  a  token  of 
the  existence  of  a  consideration,  under  the 
common  law  it  was  not  the  fact  that  the  in- 
strument was  under  seal  which  gave  it  vi- 
tality,   but   the    consideration    whose   exist- 


ence is  implied  therefrom,  while,  under 
the  civil  law,  the  subject  of  consideration 
bore  no  such  relation  to  the  contract  as  it 
does  under  the  English  law  even  accepting 
the  theory  of  Stephen  and  other  writers 
stated  under  title  Contract,  q.  v.,  that  the 
consideration  is  not  an  essential  element  of 
a  contract, — necessary  to  its  existence.  Un- 
der the  civil  law  it  was  of  the  essence  of 
certain  contracts  that  they  should  be  gra- 
tuitous, and  those  based  upon  a  considera- 
tion constituted  only  a  single  division  called 
commutative  contracts,  which  again  was 
subdivided  into  the  four  classes  represent- 
ed by  the  formula  quoted,  supra,  do  et  des, 
etc. 

While,  therefore,  the  :Roman  law  doubt- 
less exercised  a  large  influence  upon  the 
English  law  of  contracts,  the  subject  of  con- 
sideration particularly  has  been  overlaid 
with  erroneous  theories,  and  the  ascertain- 
ment of  its  true  bearing  long  postponed,  by 
the  pursuit  of  false  analogies,  due  probably 
to  the  early  adoption  of  such  phrases  as  the 
above  and  their  incorporation  into  the  com- 
mon law,  to  express  superficial  impressions 
created  by  them  rather  than  the  meaning 
attributed  to  them  by  the  Roman  jurists. 

These  analogies  have,  however,  been  in 
recent  years  the  subject  of  more  careful  in- 
vestigation, and  the  study  of  the  early  Eng- 
lish authoi'ities  and  a  greatly  increased  in- 
terest in,  and  knowledge  of,  the  Roman  law, 
have  resulted  in  disturbing  many  of  the 
theories  of  consideration  in  its  true  relation 
to  the  contract  and  the  true  meaning  of  the 
seal  as  making  a  contract  actionable  which 
would  not  be  so  if  by  parol. 

The  consideration  is  generally  conclusive- 
ly presumed  from  the  nature  of  the  con- 
tract, when  sealed;  Grubb  v.  Willis,  11  S. 
&  R.  (Pa.)  107;  but  in  some  of  the  states 
the  want  or  failure  of  a  consideration  may 
be  a  good  defence  against  an  action  on  a 
sealed  instrument  or  contract;  Solomon  v. 
Kimmel,  5  Binn.  (Pa.)  232 ;  Case  v.  Bough- 
ton,  11  Wend.  (N.  Y.)  106 ;  Leonard  v.  Bates, 
1  Blackf.  (Ind.)  173;  Coyle's  Ex'x  v.  Fowl- 
er, 3  J.  J.  Marsh.  (Ky.)  473 ;  Peebles  v.  Ste- 
phens, 1  Bibb  (Ky.)  500;  Matlock  v.  Gib- 
son, 8  Rich.  (S.  C.)  437. 

While  one  cannot  deny  the  existence  of 
some  consideration,  so  as  to  defeat  a  deed; 
McGee  v.  Allison,  94  la.  527,  63  N.  W.  322; 
Weissenfels  v.  Cable,  208  Mo.  515,  106  S.  W. 
1028 ;  it  may  be  proved  to  have  been  greater 
or  less  or  different  in  character,  as  prop- 
erty or  services,  instead  of  money,  and  the 
like ;  Jost  v.  Wolf,  130  Wis.  37,  110  N.  W. 
232;  to  the  same  effect;  Jackson  v.  R.  Co., 
54  Mo.  App.  636;  Cheesman  v.  Nicholl,  18 
Colo.  App.  174,  70  Pac.  797;  Martin  v. 
White,  115  Ga.  866,  42  S.  E.  279.  The  re- 
ceipt for  the  consideration  money  is  only 
prima  facie  evidence  of  its  payment,  which 
may  be  rebutted  by  parol  testimony;  Smith 
v.  Arthur,  110  N.  C.  400,  15  S.  E.  197 ;    R. 


CONSIDERATION 


615 


CONSIDERATION 


A.  Sherman's  Sons  Co.  v.  Mfg.  Co.,  82  Conn. 
479,  74  Atl.  773.  Parol  evidence  is  admis- 
sible to  prove  a  promise  to  pay  a  considera- 
tion in  addition  to  that  expressed  in  the 
deed ;  Allen  v.  Roes,  136  la.  423,  110  N.  W. 
583;  8  L.  R.  A.  (N.  S.)  1137;  Henry  v.  Zur- 
flieh,  203  Pa.  440,  53  Atl.  243;  but  if  the 
consideration  is  contractual,  such  evidence 
is  not  admissible;  Baum  v.  Lynn,  72  Miss. 
932,  18  South.  428,  30  L.  R.  A.  441. 

See  note  in  25  L.  R.  A.  (X.  S.)  1194. 

"The  truth  is  that  neither  consideration 
or  anything  of  the  kind  ever  was  necessary 
in  the  case  of  a  deed  and  ...  a  mere 
acknowledgment  of  consideration  received, 
forming  no  part  of  a  contract,  is  only  evi- 
dence, and  hence  may  be  qualified  or  disput- 
ed altogether."     Bigelow,  Estoppel,  478. 

Where  a  deed  states  a  consideration  gross- 
ly misrepresenting  the  value  of  the  prop- 
erty for  the  purpose  of  cheating  and  defraud- 
ing another  who  relies  on  such  representa- 
tions, such  statement  of  value  may  be  made 
the  basis  of  an  action  for  fraud ;  Leonard 
v.  Springer,  107  111.  532,  G4  N.  E.  299. 

Negotiable  instruments  also,  as  bills  of 
exchange  and  promissory  notes,  by  statute 
3  &  4  Anne  (adopted  as  common  law  or  by 
re-enactment  in  the  United  States),  carry 
with  them  prima  facie  evidence  of  consid- 
eration ;  4  Bla.  Com.  445.  See  Bills  of 
Exchange;    Negotiable  Instruments. 

The  consideration,  if  not  expressed  (when 
it  is  prima  facie  evidence  of  consideration), 
in  all  parol  contracts  (oral  or  written),  must 
be  proved ;  this  may  be  done  by  evidence 
aliunde;  Thompson  v.  Blanchard,  3  N.  Y. 
335;  Tingley  v.  Cutler,  7  Conn.  291;  Whit- 
ney v.  Stearns,  1G  Me.  394 ;  Bean  v.  Bur- 
bank,  16  Me.  458,  33  Am.  Dec.  681 ;  Arms 
v.  Ashley,  4  Pick.  (Mass.)  71 ;  Cummings  v. 
Dennett,  26  Me.  397;  Patchin  v.  Swift,  21 
Vt.  292 ;    Sloan  v.  Gibson,  4  Mo.  33. 

Moral  or  equitable  considerations  are  not 
sufficient  to  support  an  express  or  implied 
promise.  They  are  only  sufficient  as  be- 
tween the  parties  in  conveyances  by  deed, 
and  in  transfers,  not  by  deed,  accompanied 
by  possession ;  Scott  v.  Carruth,  9  Yerg. 
(Tenn.)  41S ;  3  B.  &  P.  249.  See  11  A.  &  E. 
438;  Mills  v.  Wyman,  3  Pick.  (Mass.)  207. 
These  purely  moral  obligations  are  left  by 
the  law  to  the  conscience  and  good  faith  of 
the  individual.  Baron  Parke  says,  "A  mere 
moral  consideration  is  nothing;"  9  M.  ft  W. 
501;  Kennerly  v.  Martin,  8  Mo.  698.  See 
In  re  James,  78  Hun  121,  28  N.  Y.  Supp. 
992.  It  was  at  one  time  held  in  England 
that  an  express  promise  made  in  conse- 
quence of  a  previously  existing  moral  obli- 
gation created  a  valid  contract;  per  Mans- 
field, C.  J.,  Cowp.  290;  5  Taunt.  36.  This 
doctrine  was  at  one  time  received  in  the 
United  States,  but  appears  now  to  be  repu- 
diated there;  Poll.  Contr.  16S ;  except  in 
Pennsylvania;  Cornell  v.  Yanartsdalen,  4 
Pa.  364 ;    Hemphill  v.  McClimans,  24  Pa.  370. 


Where  one  is  induced  to  become  a  surety  for 
another's  husband  and  the  promise  by  the 
other  party  is  void  on  account  of  coverture, 
a  subsequent  promise  made  after  the  dis- 
ability was  removed  is  void  fur  lack  of  con- 
gideratloD ;     Hollawuy's  v.    Rudv, 

60  S.  W.  650,  22  Ky.  L.  Rep.  I..  ]';. 

A.  S53. 

It  is  often  said  that  a  moral  obligation  Is 
sufficient  consideration;  but  it  is  a  rule, 
that  such  moral  obligation  must  be  one 
which  has  once  been  valuable  and  enforce- 
able at  law,  but  has  ceased  to  be  so  by  the 
operation  of  the  statute  of  limitation 
by  the  intervention  of  bankruptcy  for  in- 
stance. The  obligation,  in  such  case,  re- 
mains equally  strong  on  the  conscience  of 
the  debtor.  The  rule  amounts  only  to  a 
permission  to  waive  certain  positive  rules 
of  law  as  to  remedy;  Toll.  Contr.  623;  2 
Bla.  Com.  445;  Cowp.  290;  3  B.  ft  P.  249, 
n.;  2  East  506;  2  Ex.  90;  8  Q.  P..  487;  Way 
v.  Sperry,  6  Cush.  (Mass.)  238,  52  Am.  Dec. 
779;  Turner  v.  Chrisman,  20  Ohio  332; 
Ehle  v.  Jndson,  24  Wend.  (X.  Y.)  97;  War- 
ren v.  Whitney,  24  Me.  501,  41  Am.  Dec.  406 ; 
Paul  v.  Stackhonse,  38  Pa.  306;  Smith  v. 
Ware,  13  Johns.  (X.  Y.i  259;  C  >k  v.  Brad- 
ley, 7  Conn.  57.  18  Am.  Dec.  79:  Hawley  v. 
Farrar,  1  Vt  420;  Biddle  v.  Moore,  3  Pa. 
172;  Willing  v.  Peters,  12  S.  ft  R.  (Pa.)  177: 
Levy  v.  Cadet,  17  S.  &  R.  (Pa.)  126,  17  Am. 
Dec.  650;  Viser  v.  Bertrand,  14  Ark.  267; 
Pritchard  v.  Howell,  1  Wis.  i::i.  60  Am. 
Dec.  363;  Trumball  v.  Tilton,  21  X.  II.  129; 
Ellicott  v.  Turner.  1  Md.  476.  See  Easley  v. 
Gordon,  51  Mo.  A:  p.  637;  In  re  James,  78 
Dun  121,  2S  N.  Y.  Supp.  992;  Brooks  v. 
Bank,  125  Pa.  394.  17  Atl.  418.  But  now, 
by  statute,  in  England  a  promise  to  pay  a 
debt  barred  by  bankruptcy  or  one  con- 
tracted during  infancy  is  void  ;  Leake,  Contr. 
318.  If  the  moral  duty  were  once  a  legal 
one  which  could  have  been  made  available 
in  defence,  it  is  equally  within  the  rule; 
Nash  v.  Russell,  5  Barb.  (X.  Y.)  556;  Wat- 
kins  v.  Halstead,  2  Sandf.  (N.  £".)  311;  Phel- 
an  v.  Kelley,  25  Wend.  (X.  Y.i  389;  Mardis 
v.  Tyler,  10  B.  Monr.  (Ky.)  382;  Womack  v. 
Womack,  8  Tex.  397,  58  Am.  Dec.  119.  See 
as  to  moral  obligation  as  a  consideration, 
32  Cent.  L.  J.  53. 

An  express  promise  to  perform  a  previous 
legal  obligation,  without  any  new  consider- 
ation, does  not  create  a  new  obligatii 
Dowl.  781;  Reynolds  v.  Nugent,  25  Ind.  328; 
15  C.  B.  295;  16  Q.  B.  689;  Vanderbllt  v. 
Schreyer,  91  X.  V.  mi  ;  withers  v.  Swing,  40 
Ohio  st.  400;  Conover  v.  stiihveil.  34  x.  J.  L. 
54;  Cobb  v.  Cowdery,  40  vt.  28,  94  Am.  Dec. 
370;  Runnamaker  v.  Cordray,  54  111.  303; 
Warren  v.  Hodge,  121  Mass.  106.  The  prom- 
ise of  one  party  under  an  existing  contract  to 
perform  his  obligation  is  not  a  valid  consid- 
eration for  a  new  promise  by  the  other  party  ; 
Wescott  v.  Mitchell.  95  Me.  377.  50  Atl.  21 ; 
so  where  one  party  promises  to  do  less  than 


CONSIDERATION 


616 


CONSIDERATION 


he  has  already  agreed  to  do  and  the  other 
party  promises  to  do  more  than  he  is  oblig- 
ed to  do;  Weed  v.  Spears,  193  N.  Y.  289, 
86  N.  E.  10;  and  where  the  consideration 
of  the  new  contract  is  services  which  one  is 
legally  bound  to  perform  under  a  pre-exist- 
ing contract;  Alaska  Packers'  Ass'n  v.  Do- 
menico,  117  Fed.  99,  54  C.  C.  A.  485;  contra, 
wbere  additional  compensation  is  promised 
to  induce  another  to  complete  his  contract 
after  abandonment  on  account  of  unfore- 
seen and  unanticipated  difficulties;  Linz  v. 
Schuck,  106  Md.  220,  67  Atl.  286,  11  L.  R. 
A.  (N.  S.)  789,.  124  Am.  St.  Rep.  481,  14  Ann. 
Cas.  495.  Whether  (a)  the  performance  of 
an  existing  contractual  obligation  or  (b)  a 
new  promise  of  such  performance  made  to 
a  new  promisee  is  a  good  consideration  for 
a  new  contract  has  been  much  discussed  by 
legal  writers.  That  neither  is  good  is  main- 
tained by  Anson  and  Williston;  that  both 
are  good  is  the  view  of  Ames  (who  even 
holds  that  a  new  promise  of  the  same  thing 
to  the  same  promisee  may  be  good)  and  Har- 
riman;  that  (a)  is  not  good,  but  (b)  is,  is 
the  opinion  of  Langdell,  Leake  and  Pollock 
and  (for  not  quite  the  same  reason)  Beale. 
See  20  L.  Q.  R.  9.  See  Articles  on  considera- 
tion in  9  Harv.  L.  R.  233 ;  12  id.  517 ;  17  id. 
71;  17  Yale  L.  Journal,  338;  17  L.  Q.  R.  415. 
A  valuable  consideration  alone  is  good  as 
against  subsequent  purchasers  and  attach- 
ing creditors;  and  one  which  is  rendered 
at  the  request,  express  or  implied,  of  the 
promisor ;  Dy.  172,  n. ;  1  Rolle,  Abr.  11,  pi. 
2,  3 ;  1  Ld.  Raym.  312;  1  Wms.  Saund.  264, 
n.  (1) ;  6  Ad.  &  E.  718;  3  C.  &  P.  36;  6  Am. 
&  W.  4S5;  3  Q.  B.  234;  Cro.  Eliz.  442; 
Hort  v.  Norton,  1  McCord  (S.  C.)  22. 

Among  valuable  considerations  may  be 
mentioned  these: 

In  general,  the  waiver  of  any  legal  or 
equitable  right  at  the  request  of  another  is 
sufficient  consideration  for  a  promise ;  Knapp 
v.  Lee,  3  Pick.  (Mass.)  452 ;  Farmer  v.  Stew- 
art, 2  N.  H.  97 ;  Nicholson  v.  May,  1  Wright 
(Ohio)  660;  Smith  v.  Weed,  20  Wend.  (N. 
Y.)  184,  32  Am.  Dec.  525 ;  Williams  v.  Alex- 
ander, 39  N.  C.  207;  4  B.  &  C.  8;  Union 
Bank  v.  Geary,  5  Pet.  (U.  S.)  114,  8  L.  Ed. 
60;  4  Ad.  &  E.  108;  Heitsch  v.  Cole,  47 
Minn.  320,  50  N.  W.  235;  Fraser  v.  Backus, 
62  Mich.  540,  29  N.  W.  92 ;  Vogel  v.  Meyer, 
23  Mo.  App.  427. 

Forbearance  for  a  certain  or  reasonable 
time  to  institute  a  suit  upon  a  valid  or 
doubtful  claim,  but  not  upon  one  utterly 
unfounded.  This  is  a  benefit  to  one  party, 
the  promisor,  and  an  injury  to  the  other, 
the  promisee;  1  Rolle,  Abr.  24,  pi.  33 ;  Com. 
Dig.  Action  on  the  Case  upon  Assumpsit 
(B,  1) ;  L.  :R.  7  Ex.  235 ;  L.  R.  10  Q.  B.  92 ; 
L.  R.  2  C.  P.  196;  Busby  v.  Conoway,  8  Md. 
55,  63  Am.  Dec.  688;  King  v.  Upton,  4 
Greenl.  (Me.)  387,  16  Am.  Dec.  266;  Elting 
v.  Yanderlyn,  4  Johns.  (N.  Y.)  237;  Jenni- 
son  v.  Stafford,  1  Cush.  (Mass.)  168,  48  Am. 


Dec.  594;  Giles  v.  Ackles,  9  Pa.  147,  49  Am. 
Dec.  551 ;  McKinley  v.  Watkins,  13  111.  140 ; 
Gilman  v.  Kibler,  5  Humphr.  (Tenn.)  19; 
Colgin  v.  Henley,  6  Leigh.  (Va.)  85;  21  E. 
L.  &  Eq.  199;  Mills'  Heirs  v.  Lee,  6  T.  B. 
Monr.  (Ky.)  91,  17  Am.  Dec.  118 ;  Hargroves 
v.  Cooke,  15  Ga.  321;  Boyd  v.  Freize,  5 
Gray  (Mass.)  553;  Tappan  v.  Campbell,  9 
Yerg.  (Tenn.)  436;  Sage  v.  Wilcox,  6  Conn. 
81 ;  1  Bulstr.  41 ;  Lonsdale  v.  Brown,  4 
Wash.  C.  C.  14S,  Fed.  Cas.  No.  8494;  Down- 
ing v.  Funk,  5  Rawle  (Pa.)  69 ;  Hakes  v. 
Hotchkiss,  23  Vt.  235;  Morgan  v.  Bank,  44 
111.  App.  5S2  ;  18  C.  B.  273 ;  Calkins  v.  Chand- 
ler, 36  Mich.  320,  24  Am.  Rep.  593 ;  Wills  v. 
Ross,  77  Ind.  1,  40  Am.  Rep.  279 ;  Edgerton 
v.  Weaver,  105  111.  43;  Johnston  Harvester 
Co.  v.  McLean,  57  Wis.  258,  15  N.  W.  177, 
46  Am.  Rep.  39.  "If  an  intending  litigant 
bona  fide  forbears  the  right  to  litigate  a 
question  of  law  or  fact  which  it  is  not  vex- 
atious or  frivolous  to  litigate,  he  does  give 
up  something  of  value."  Lord  Bowen  in  32 
Ch.  Div.  266,  291.  An  agreement  to  forbear 
suit,  though  for  an  indefinite  period,  is  suf- 
ficient consideration ;  Traders'  Nat.  Bank  of 
San  Antonio  v.  Parker,  130  N.  Y.  415,  29 
N.  E.  1094 ;  Mathews  v.  Seaver,  34  Neb.  592, 
52  N.  W.  283;  Lancaster  v.  Elliot,  42  Mo. 
App.  503. 

An  invalid  or  not  enforceable  agreement 
to  forbear  is  not  a  good  consideration; 
suit  may  be  brought  immediately  after  the 
promise  is  made.  The  forbearance  must  be 
an  enforceable  agreement  for  a  reasonable 
time ;  Hardr.  5 ;  4  M.  &  W.  795 ;  King  v. 
Upton,  4  Greenl.  (Me.)  3S7,  16  Am.  Dec.  266 
Rix  v.  Adams,  9  Vt  233,  31  Am.  Dec.  619 
L.  R.  8  Eq.  36;  Tucker  v.  Ronk,  43  la.  SO 
Prater  v.  Miller,  25  Ala.  320,  60  Am.  Dec. 
521;  Kidder  v.  Blake,  45  N.  H.  530;  Mul- 
holland  v.  Bartlett,  74  111.  58 ;  Cline  v.  Tem- 
pleton,  78  Ky.  550.  But  if  a  meritorious 
claim  is  made  in  good  faith,  a  forbearance 
to  prosecute  it  may  be  a  good  considera- 
tion for  a  promise,  although  on  the  facts  or 
on  the  law  the  suit  would  have  failed  of 
success;  L.  R.  5  Q.  B.  449;  Rue  v.  Meirs, 
43  N.  J.  Eq.  377,  12  Atl.  369;  25  L.  T.  R. 
504;  32  Ch.  Div.  269;  Hewett  v.  Currier,  63 
Wis.  387,  23  N.  W.  S84;  Fish  v.  Thomas,  5 
Gray  (Mass.)  45,  66  Am.  Dec.  348 ;  10  Harv. 
L.  Rev.  113. 

Forbearance  to  prosecute  a  claim  honestly 
made  but  not  legally  valid  is  no  considera- 
tion for  a  promise;  Price  v.  Bank,  62  Kans. 
743,  64  Pac.  639. 

The  prevention  of  litigation  is  a  valid  and 
sufficient  consideration;  for  the  law  favors 
the  settlement  of  disputes.  Thus,  a  com- 
promise or  mutual  submission  of  demands 
to  arbitration  is  a  highly  favored  consider- 
ation at  law;  Van  Dyke  v.  Davis,  2  Mich. 
145;  Zane's  Devisees  v.  Zane,  6  Munf.  (Va.) 
406;  Taylor  v.  Patrick,  1  Bibb  (Ky.)  168; 
Truett  v.  Chaplin,  11  N.  C.  178;  Stoddard 
v.  Mix,  14  Conn.  12;  Barlow  v.  Ins.  Co.,  4 


CONSIDERATION 


617 


CONSIDERATION 


Mete.  (Mass.)  270;  Burnham  v.  Dunn,  35  N. 
H.  556;  Blake  v.  Peck,  11  Vt  483;  Field  v. 
Weir,  2S  Miss.  5G;  Mayo  v.  Gardner,  49  N. 
C.  359;  Pounds  v.  Richards,  21  Ala.  421; 
Stoddart  v.  Mix,  14  Conn.  12;  Banks  v.  Sear- 
les,  2  McMulL  (S.  C.)  356;  Coleman  v. 
Frum,  3  Scam.  (111.)  37S;  Clarke  v.  Mel'ar- 
land's  Ex'rs,  5  Dana  (Ky.)  45;  21  E.  L.  & 
Eq.  199;  5  B.  &  Aid.  117;  Battle  v.  Mc- 
Arthur,  49  Fed.  715;  Robson  v.  Logging  Co., 
43  Fed.  3G4;  White  v.  Hoyt,  73  N.  Y.  514; 
Barnes  v.  Ryan,  GG  Hun  170,  21  N.  Y.  Supp. 
127;  Svvem  v.  Green,  9  Colo.  358,  12  Pac. 
202;  Moon  v.  Martin,  122  Ind.  211,  23  N.  E. 
668;  32  Ch.  D.  266. 

The  giving  up  a  suit  instituted  to  try  a 
question  respecting  which  the  law  la  doubt- 
ful, or  is  supposed  by  the  parties  to  be 
doubtful,  is  a  good  consideration  for  a 
promise;  Poll.  Contr.  180;  Leake,  Contr.  626; 
L.  R.  5  Q.  B.  241;  Hunter  v.  Lanius,  82  Tex. 
677,  18  S.  W.  201;  Hamaker  v.  Eberley,  2 
Binn.  (Pa.)  509,  4  Am.  Dec.  477;  2  C.  B.  548; 
4  East  455 ;  Feeter  v.  Weber,  78  N.  Y.  334 ; 
Parker  v.  Enslow,  102  111.  272.  10  Am.  Rep. 
58S;  Livingston  v.   Smith,  5  Let.   (U.  S.)  98, 

8  L.  Ed.  57;  Easton  v.  Eastun,  112  Mass. 
438;  Grandin  v.  Graudin,  49  N.  J.  Law,  508, 

9  Atl.  756,  GO  Am.  Rep.  642 ;  Feeter  v.  Weber, 
78  N.  Y.  334 ;  Prout  v.  Fire  Dist,  154  Mass. 
453,  28  N.  E.  679,  and  cases  cited. 

Incurring  a  legal  liability  to  a  third  party 
is  a  valid  consideration  for  a  promise  by 
the  party  at  whose  request  the  liability 
was  incurred;  L.  R.  8  Eq.  134. 

Refraining  from  the  use  of  liquor  and 
tobacco  for  a  certain  time  at  the  request  of 
another,  is  a  sufficient  consideration  for  a 
promise  by  the  latter  to  pay  a  sum  of 
money;  Hamer  v.  Sidway,  124  N.  Y.  538,  27 
N.  E.  256,  12  L.  R.  A.  463,  21  Am.  St.  Rep. 
693. 

The  assignment  of  a  debt  or  chose  in  ac- 
tion (unless  void  by  reason  of  maintenance) 
with  the  consent  of  the  debtor,  is  a  good 
consideration  for  the  debtor's  promise  to 
pay  the  assignee.  It  is  merely  a  promise 
to  pay  a  debt  due,  and  the  consideration 
Is  the  discharge  of  the  debtor's  liability 
to  the  assignor;  4  B.  &  C.  525;  13  Q.  B.  548; 
WThittle  v.  Skinner,  23  Vt.  532;  Harrison  v. 
Knight,  7  Tex.  47;  Edson  v.  Fuller,  22  N. 
H.  185;  10  J.  B.  Moo.  34;  2  Bingh.  437;  1 
Cr.  M.  &  R.  430;  Morse  v.  Bellows,  7  N. 
H.  549,  28  Am.  Dec.  372.  Work  and  serv- 
ice are  perhaps  the  most  common  considera- 
tions. 

In  the  case  of  deposit  or  mandate  it  was 
once  held  that  there  was  no  consideration; 
Yelv.  4,  128;  Cro.  Eliz.  883;  the  reverse  is 
now  usually  maintained;  10  J.  B.  Moo.  192; 
2  M.  &  W.  143;  M'Cl.  &  Y.  205;  Robinson  v. 
Threadgill,  35  N.  C.  39;  Clark  v.  Gaylord, 
24  Conn.  484;  Coggs  v.  Bernard,  1  Sin.  Lead. 
Cas.  354. 

In  these#  cases  there  does  not  appear  to 
be  any  benefit  arising  from  the  bailment  to 


the  promisor.  The  definitions  of  mandate 
and  deposit  exclude  thbs.  Nor  does  any  in- 
jury at  the  time  accrue  to  the  promisee;  the 
bailment  is  for  his  benefit  entiri 

Trust  and  confidence  in  another  are  said 
to  be  the  considerations  which  support  this 
contract.  But  we  think  parting  with  the 
-ion  of  a  thing  may  be  considered  uu 
injury  to  the  promisee,  for  which  the  pros- 
pect of  return  was  the  consideration  held 
out   by  the  promisor. 

Mutual  promises  made  at  the  same  time 
are  concurrent  considerations,  and  will  sup- 
port each  other  if  both  be  legal  and  bind- 
ing; Cro.  Eliz.  543;  6  B.  &  C.  255;  3  B.  .V 
Ad.  703;  3  E.  L.  &  Eq.  420;  Horsey  v.  Pack- 
wood,  12  How.  (U.  S.)  126,  13  L.  Ed.  921; 
Babcock  v.  Wilson,  17  Me.  372,  35  Am.  Dec. 
263;  Forney  v.  Shipp,  49  N.  C.  527;  Nott  v. 
Johnson,  7  Ohio  St.  270;  Cherry  v.  Smith,  3 
Ilumphr.  (Tenn.)  19,  39  Am.  Dec.  150;  Mil- 
ler v.  Drake,  1  Cai.  (N.  Y.)  45;  Howe  v. 
O'Mally,  5  N.  C.  287,  3  Am.  Dec.  693;  Mc- 
Kinley  V.  Watkins,  13  111.  140;  Byrd  v.  Fox, 
8  Mo.  574;  Flanders  v.  Wood,  83  Tex.  277.  18 
8.  W.  572;  Earie  v.  AngeU,  157  Mass.  294, 
32  N.  E.  164;  Bracco  v.  Tighe,  75  Hun  140, 
27  N.  Y.  Supp.  34.  Yet  the  promise  of  an 
infant  is  a  consideration  for  the  promise  of 
an  adult.  The  infant  may  avoid  his  con- 
tract, but  the  adult  cannot;  Boyden  v.  Boy- 
den,  9  Mete.  (Mass.)  519;  McGinn  v.  Shaef- 
fer,  7  Watts  (Pa.)  412;  Hunt  v.  Peake,  5 
Cow.  (N.  Y.)  475,  15  Am.  Dec.  475;  Pool  v. 
Pratt,  1  D.  Chipm.  (Vt)  252  ;  Cannon  v.  Als- 
bury,  1  A.  K.  Marsh.  (Ky.)  76,  16  Am.  Dec. 
709;  Eubanks  v.  Peak.  2  Bail.  (S.  C.)  497;  3 
Maule  &  S.  205.  While  a  contract  is  execu- 
tory, an  agreement  by  one  party  to  modify 
it  is  a  consideration  for  a  like  agreement 
by  the  other;  Dickson  v.  Owens,  134  111.  App 
561;  and  a  contract  of  employment  is  not 
lacking  in  mutuality  because  the  party  em- 
ployed does  not  bind  himself  to  continue 
in  the  employment  for  a  definite  period : 
Newhall  v.  Printing  Co.,  105  Minn.  41.  117 
N.  W.  228,  20  L.  R.  A.  (N.  S.)  899. 

Marriage  is  a  valuable  consideration: 
Whelan  v.  Whelan,  3  Cow.  (N.  V.i  537; 
Huston's  Adin'r  v.  Cantril,  11  Leigh  (Va.» 
136;  Magniac  7. Thompson,  7  Pet  (U.  s.)  34S, 
8  L.  Ed.  709;  DonaUen  v.  Lennox,  G  Dana 
(Ky.)  89;  2  D.  F.  &  J.  566;  Edwards  v.  Mar- 
tin, 39  111.  App.  145;  Prignon  v.  Dob 
l  Wash.  199,  29  Pac.  1046.  31  Am.  St  Rep. 
914;  Whitehill's  Lessee  v.  Lonsey,  2  Testes 
(Pa.)  109;  Nally  v.  Xally,  74  Ga.  669,  58  Am. 
Rep.  458.  A  promise  by  one  to  support  an- 
other in  consideration  of  the  other  party's 
release  of  the  first  party  from  his  promise 
to  marry  her,  is  valid  and  enforceable; 
Henderson  v.  Spra'tlen,  44  Colo.  278,  9S  Pac. 
14,  19  L.   R.  A.   (N.  S.)  655. 

Subscriptions  to  shares  in  a  chartered 
company  are  said  to  rest  upon  sufficient  con- 
sideration ;  for  the  company  is  obliged  to 
give  the  subscriber  his  shares,  and  he  must 


CONSIDERATION 


618 


CONSIDERATION 


pay  for  them;  Pars.  Contr.  377;  Chester 
Glass  Co.  v.  Dewey,  16  Mass.  94,  8  Am.  Dec. 
128;  New  Bedford  &  B.  Turnpike  Corp.  v. 
Adams,  8  Mass.  138,  5  Am.  Dec.  81;  Curry 
v.  Rogers,  21  N.  H.  247;  Kennebec  &  P.  R. 
Co.  v.  Jarvis,  34  Me.  360;  Barnes  v.  Perine, 

15  Barb.  (N.  Y.)  249;  Selma  &  T.  R.  Co.  v. 
Tipton,  5  Ala.  787,  39  Am.  Dec.  344;  State 
Treasurer  v.  Cross,  9  Vt.  289,  31  Am.  Dec. 
626. 

On  the  subject  of  voluntary  subscriptions 
for  charitable  purposes  there  is  much  con- 
fusion among  the  authorities;  Ives  v.  Sterl- 
ing, 6  Mete.  (Mass.)  310.  A  promise  of  a 
subscription  for  the  purchase  of  a  church 
site,  followed  by  the  subsequent  contract 
of  the  church  for  the  land,  is  supported  by 
a  valid  consideration ;  First  Universalist 
Church  v.  Pungs,  126  Mich.  670,  86  N.  W. 
235.     See  Subscription. 

Illegal  considerations  can  be  no  founda- 
tion for  a  contract.  Violations  of  morality, 
decency,  and  policy  are  in  contravention  of 
common  law :  as,  contracts  to  commit,  con- 
ceal, or  compound  a  crime.  So,  a  contract 
for  future  illicit  intercourse,  or  in  fraud  of 
a  third  party,  will  not  be  enforced.  Ex  tur- 
pi contractu  non  oritur  actio.  But  the  act 
in  question  is  not  always  a  criterion;  e.  g. 
as  to  immoral  considerations  that  which  the 
law  considers  is  whether  the  promise  has 
a  tendency  to  produce  immoral  results ; 
hence  while  a  promise  of  future  illicit  co- 
habitation is  an  illegal  consideration;  L.  R. 

16  Eq.  275;  Boigneres  v.  Boulon,  54  Cal. 
146;  Baldy  v.  Stratton,  11  Pa.  316;  Harri- 
man,  Cont.  114 ;  but  a  promise  founded  upon 
past  illicit  cohabitation  is  not  illegal ;  Bunn 
v.  Winthrop,  1  Johns.  Ch.  (N.  T.)  329;  but 
simply  voluntary  and  governed  by  the  same 
rules  as  other  pas.t  executed  considerations; 
Poll.  Cont.  262.  The  illegality  created  by 
statute  exists  when  the  statute  either  ex- 
pressly prohibits  a  particular  thing,  or  af- 
fixes a  penalty  which  implies  prohibition,  or 
implies  such  prohibition  from  its  object  and 
nature;  10  Ad.  &  E.  815;  Donallen  v.  Len- 
nox, 6  Dana  (Ky.)  91;  Brown's  Adm'rs  v. 
Langford's  Adm'rs,  3  Bibb  (Ky.)  500;  Town 
of  Hinesburgh  v.   Sumner,  9  Vt.  23,  31  Am. 

•  Dec.  599;  Armstrong  v.  Toler,  11  Wheat.  (U. 
S.)  258,  6  L.  Ed.  468;  Deering  v.  Chapman, 
22  Me.  488,  39  Am.  Dec.  592 ;  Gamble  v. 
Grimes,  2  Ind.  392;  President,  etc.,  of  Spring- 
field Bank  v.  Merrick,  14  Mass.  322 ;  Sharp  v. 
Teese,  9  N.  J.  L.  352,  17  Am.  Dec.  479;  Aspin- 
wall  v.  Meyer,  2  Sandf.  (N.  Y.)  186;  Hale  v. 
Henderson,  4  Humphr.  (Tenn.)  199;  Lewis  v. 
Welch,  14  N.  H.  294 ;  Caldwell  v.  Wentworth, 
id.  435;  Cornwell  v.  Holly,  5  Rich.  (S.  C.) 
47;  Solomons  v.  Jones,  3,  Brev.  (S.  C.)  54, 
5  Am.  Dec.  538 ;  Miller  v.  Ammon,  145  U.  S. 
421,  12  Sup.  Ct.  884,  36  L.  Ed.  759.  If  any 
part  of  the  consideration  is  void  as  against 
the  law,  it  is  void  in  toto;  Woodruff  v.  Hin- 
man,  11  Vt.  592,  34  Am.  Dec.  712;  Allen  v. 
Pearce,  84  Ga.  606,  10  S.  E.  1015 ;  see  Wilcox 


v.  Daniels,  15  R.  I.  261,  3  Atl.  204;  Buck 
v.  Abbee,  20  Vt.  184,  62  Am.  Dec.  564;  Widoe 
v.  Webb,  20  Ohio  St.  431,  5  Am.  Rep.  664; 
Hazelton  v.  Sheckels,  202  U.  S.  71,  26  Sup. 
Ct.  567,  50  L.  Ed.  939,  6  Ann.  Cas.  217;  but 
contra,  if  the  promise  be  divisible  and  ap- 
portionable  to  any  part  of  the  considera- 
tion, the  promise  so  far  as  not  attributable 
to  the  illegal  consideration  might  be  valid ; 
Leake,  Contr.  631 ;  2  M.  &  G.  167. 

A  contract  founded  upon  an  impossible 
consideration  is  void.  Lex  neminem  cogit 
ad  vana  aut  impossibilia ;  5  Viner,  Abr.  110, 
111,  Condition  (C)  a,  (D)  a;  1  Rolle,  Abr.  419; 
Co.  Litt.  206  a;  2  B.  &  C.  474;  Leake,  Contr. 
719.  But  such  impossibility  must  be  a 
natural  or  physical  impossibility;  7  Ad.  &  E. 
798;  Youqua  v.  Nixon,  1  Pet.  C.  C.  221,  Fed. 
Cas.  No.  18,189;  2  Moore  &  S.  89;  9  Bingh. 
68;  but  it  may  be  otherwise  when  the  con- 
sideration is  valid  at  the  time  the  contract 
was  formed,  but  afterwards  became  im- 
possible;  Leake,  Contr.  719. 

An  executory  consideration  which  has 
totally  failed  will  not  support  a  contract 
when  the  performance  of  the  consideration 
forms  a  condition  precedent  to  the  perform- 
ance of  the  promise;  2  C.  B.  548;  New  York 
Life  Ins.  Co.  v.  Beebe,  7  N.  Y.  369;  Fowler 
v.  Shearer,  7  Mass.  14;  Woodward  v.  Cow- 
ing, 13  Mass.  216;  Pettibone  v.  Roberts,  2 
Root  (Conn.)  258;  Dean  v.  Mason,  4  Conn. 
428,  10  Am.  Dec.  162;  Boyd  v.  Anderson,  1 
Ov.  (Tenn.)  438,  3  Am.  Dec.  762;  Treat  v. 
Inhabitants  of  Orono,  26  Me.  217;  Charlton 
v.  Lay,  5  Humphr.  (Tenn.)  496;  Cabot  v. 
Haskins,  3  Pick.  (Mass.)  83;  Jarvis  v.  Sut- 
ton, 3  Ind.  289.  Sometimes  when  the  con- 
sideration partially  fails,  the  appropriate 
part  of  the  agreement  may  be  apportioned 
to  what  remains,  if  the  contract  is  capable 
of  being  severed ;  4  Ad.  &  E.  605;  8  M.  &  W. 
870;  Parish  v.  Stone,  14  Pick.  (Mass.)  198, 
25  Am.  Dec.  378;  Carleton  v.  Woods,  28  N. 
H.  290;  Frazier  v.  Thompson,  2  W.  &  S. 
(Pa.)  235;  L.  R.  10  Q.  B.  491;  1  Q.  B.  Div. 
679;  Wilson  v.  Hentges,  26  Minn.  288,  3  N. 
W.  338.     See  Breach. 

A  past  consideration  will  not  generally 
be  sufficient  to  support  a  contract.  It  is 
something  done  before  the  obligor  makes 
his  promise,  and,  therefore,  cannot  be  a 
foundation  for  that  promise,  unless  it  has 
been  executed  at  the  request  (express  or  im- 
plied) of  the  promisor.  Such  a  request 
plainly  implies  a  promise  of  fair  and  rea- 
sonable compensation;  L.  R.  8  Ch.  8S8;  Car- 
son v.  Clark,  1  Scam.  (111.)  113,  25  Am.  Dec. 
79;  Doty  v.  Wilson,  14  Johns.  (N.  Y.)  378; 
Gleason  v.  Dyke,  22  Pick.  (Mass.)  393;  Hay- 
den  v.  Inhabitants  of  Madison,  7  Greenl. 
(Me.)  76;  Abbot  v.  Third  School  Dist.,  7 
Greenl.  (Me.)  118;  Comstock  v.  Smith,  7 
Johns.  (N.  Y.)  87;  Bulkley  v.  Landon,  2  Conn. 
404;  1  Sm.  Lead.  Cas.  144,  note  to  Lamp- 
leigh  v.  Brathwait.  But  a  pre-existing  ob- 
ligation will  support  a  promise  to  perform 


CONSIDERATION 


619 


CONSIDERATION 


that  obligation  which  the  law,  in  the  case 
of  a  debt,  will  imply;  Harriman,  Contr.  83; 
5  M.  &  W.  541;  but  a  past  consideration 
which  did  not  raise  an  obligation  at  the 
time  it  was  furnished,  will  support  no  prom- 
ise whatever;  3  Q.  B.  234;  Harriman,  Contr. 
83 ;  where  there  has  been  a  request  for  serv- 
ices, a  subsequent  promise  to  pay  a  definite 
sum  for  them  is  evidence  of  the  actual  value 
of  the  services;  id.  Where  a  creditor  gives 
an  extension  of  time  for  payment  of  a  pre- 
existing debt  and  takes  a  mortgage  as  se- 
curity he  is  a  purchaser  for  value;  O'Brien 
v.  Fleckenstein,  180  N.  Y.  350,  73  N.  E.  30, 
105  Am.  St.  Rep.  768;  the  promise  to  pay 
for  another's  past  services  to  and  support  of 
defendant's  mother  during  an  Illness  is  val- 
id; Montgomery  v.  Downey,  116  la.  632,  88 
N.  W.  810;  but  an  agreement  to  take  up  a 
past  due  note  without  additional  considera- 
tion or  a  request  or  promise  of  forbear- 
ance against  the  maker  is  without  consid- 
eration; J.  II.  Queal  &  Co.  v.  Peterson,  13S 
la.  514,  116  N.  W.  593,  19  L.  R.  A.  (N.  S.) 
842. 

As  to  time,  considerations  may  be  of  the 
past,  present,  or  future.  Those  which  are 
present  or  future  will  support  a  contract 
not  void  for  other  reasons;  Story,  Contr. 
71.  When  the  consideration  is  to  do  a  thing 
hereafter,  and  the  promise  has  been  accrpt- 
ed,  and  a  promise  in  return  founded  upon 
it,  the  latter  promise  rests  upon  sufficient 
foundation,  and  is  obligatory ;  Stewart  v. 
Redditt,  3  Md.  67;  Hilton  v.  Southwick,  17 
Me.  303,  35  Am.  Dec.  253;  Andrews  v.  Pon- 
tue,  24  Wend.  (N.  Y.)  285;  Gardner  v.  Web- 
ber, 17  Pick.  (Mass.)  407. 

The  adequacy  of  the  consideration  is  gen- 
erally immaterial;  L.  R.  5  Q.  B.  87;  8  A.  & 
E.  745;  L.  R.  7  Ex.  235;  5  C.  B.  N.  S.  265; 
24  L.  J.  C.  P.  271;  16  East  372;  Hesser  v. 
Steiner,  5  W.  &  S.  (Pa.)  476;  Downing  v. 
Funk,  5  Rawle  (Pa.)  69;  excepting  formerly 
in  England  before  31  &  32  Vict.  c.  4,  in  the 
case  of  the  sale  Of  a  reversionary  interest 
or  where  the  inadequacy  of  the  consideration 
is  so  gross  as  of  itself  to  prove  fraud  or  im- 
position ;  Judy  v.  Louderman,  48  Ohio  St. 
562,  29  N.  E.  181.  There  is  no  case  where 
mere  inadequacy  of  price,  independent  of 
other  circumstances  has  been  held  sufficient 
to  set  aside  a  contract  between  parties  stand- 
ing on  equal  ground  and  dealing  with  each 
other  without  imposition  or  oppression; 
Hind  v.  Holdship,  2  Watts  (Pa.)  104,  26  Am. 
Dec.  107;  Williams  v.  Jensen,  75  Mo.  6S1; 
Smock  v.  Pierson,  68  Ind.  405,  34  Am.  Rep. 
269;  Wolford  v.  Powers.  85  Ind.  21)1.  11 
Am.  Rep.  16;  Wells  v.  Tucker,  57  Vt.  L'L'7 ; 
Worth  v.  Case,  42  N.  Y.  309.  The  adequacy 
of  the  consideration  does  not  affect  the  con- 
tract; Lawrence  v.  McCalmont,  2  How.  (U. 
S.)  426,  11  L.  Ed.  326;  but  the  consideration 
must  be  real  and  not  merely  colorable;  one 
cent  has  been  held  not  to  be  a  sufficient  con- 
sideration for  a  promise  to  pay  $700;  Schnell 


v.  Nell,  17  Ind.  29,  79  Am.  Dec.  453 ;  and  $1 
has  been  held  insufficient  to  support  a  prom- 
ise to  pay  $1000;  Shepard  v.  Rhodes.  7  R.  I. 
470,  84  Am.  Dec.  573 ;  a  dollar  would  be  a 
sufficient  consideration  for  any  promise  ex- 
oepl  one  to  pay  a  larger  sum  of  money  ab- 
solutely; Lawrence  v.  McCalmont,  2  How. 
(U.  S.)  426,  11  L.  Ed.  326.  A  Cully  executed 
contract  will  not  be  disturbed  for  want  of 
consideration;  Lamb's  Estate  v.  Morrow, 
140  la.  89,  117  N.  W.  1118,  18  L.  R.  A.  (N. 
S.)  226. 

See  note  to  Chesterfield  v.  Jannsen  In  1 
W.  &  T.  Lead.  Cas. ;    Contract. 

CONSIDERATUM  EST  PER  CURIAM 
(Lat.  it  is  considered  by  the  court).  A  for- 
mula used  in  giving  judgments. 

A  Judgment  Is  the  decision  or  sentence  of  the  law, 
given  by  a  court  of  Justice,  as  the  result  of  proceed- 
ings instituted  therein  for  the  redress  of  an  injury. 
The  language  of  the  Judgment  is  not,  therefore, 
that  "it  Is  decreed,"  or  "resolved,"  by  the  court, 
but  that  "It  Is  considered  by  the  court,"  considera- 
tion est  per  curiam,  that  the  plaintiff  recover  his 
debt,  etc. 

In  the  early  writers,  considcrarc,  consid- 
eratio  always  means  the  judgment  of  a  court. 
This  usage  was  preserved  down  to  our  time 
in  the  judgment  of  the  common-law  courts  in 
the  form  "It  is  considered,"  which,  as  Sir 
Frederick  Pollock  says,  was  for  no  obvious 
reason  altered  to  "It  is  adjudged,"  in  the 
Judicature  Acts.  Poll.  Contr.  177.  "Adjudg- 
ed" was  current  with  text-writers  from  the 
16th  century  onward. 

CONSIGN.  To  send  goods  to  a  factor  or 
agent.  See  Gillespie  v.  Wiuberg,  4  Daly  (N*. 
Y.)  320. 

In  Civil  Law.  To  deposit  in  the  custody 
of  a  third  person  a  thing  belonging  to  the 
debtor,  for  the  benefit  of  the  creditor,  under 
the  authority  of  a  court  of  justice.  Pothier, 
Obi.  pt.  3,  c.  1,  art.  8. 

The  term  to  consign,  or  consignation,  Is  derived 
from  the  Latin  consiijnare,  which  signifies  to  seal  ; 
for  it  was  formerly  the  practice  to  seal  up  the 
money  thus  received  in  a  bag  or  box.  Aso  &  M. 
Inst.  b.  2,  t.  11,  c.  1,  §  5. 

Generally,  the  consignation  is  made  with  a  public 
officer:  it  is  very  similar  to  our  practice  of  paying 
money  into  court.    See  Burge,  Surety. 

C0NSIGNATI0.    See  Consign. 

CONSIGNEE.  One  to  whom  a  consign- 
ment is  made. 

It  is  usual  in  bills  of  lading  to  state  that 
the  goods  are  to  be  delivered  to  the  con- 
signee or  his  assigns,  be  or  they  paying 
freight:  in  such  case  the  consignee  or  his 
assigns,  by  accepting  the  goods,  by  Implica- 
tion become  bound  to  pay  the  freight;  Do 
Peiral  V.  Wolfe.  29  N.  V.  436;  Hart  v.  En- 
sign, 47  N.  Y.  G19;    3  Bingh.  3S3. 

CONSIGNMENT.  The  goods  or  property 
sent  by  means  of  a  common  carrier  by  one 
or  more  persons,  called  the  consignors,  in 
one  place,  to  one  or  more  persons,  called  the 
consignees,  who  are  in  another.  The  goods 
sent  by  one  person  to  another,  to  be  sold  or 


CONSIGNMENT 


620 


CONSOLIDATE 


disposed  of  by  the  latter  for  and  on  account 
of  the  former.  The  transmission  of  the 
goods. 

CONSIGNOR.  One  who  makes  a  consign- 
ment. 

CONSILIARIUS  (Lat  consiliare,  to  ad- 
vise). In  Civil  Law.  A  counsellor,  as  dis- 
tinguished from  a  pleader  or  advocate.  An 
assistant  judge.  One  who  participates  in 
the  decisions.    Du  Cange. 

CONSILIUM  (called,  also,  Dies  Consilii). 
A  day  appointed  to  hear  the  counsel  of  both 
parties.    A  case  set  down  for  argument. 

It  is  commonly  used  for  the  day  appointed 
for  the  argument  of  a  demurrer,  or  errors 
assigned;  1  Tidd,  Pr.  43S;  2  id.  684,  1122; 
1  Sell.  Pr.  336 ;   1  Archb.  Pr.  191,  246. 

CONSIMILI  CASU  (Lat.  in  like  case).  A 
writ  of  entry,  framed  under  the  provisions 
of  the  statute  Westminster  2d  (13  Edw.  I.), 
c.  24,  which  lay  for  the  benefit  of  the  rever4 
sioner,  where  a  tenant  by  the  curtesy  alien- 
ed in  fee  or  for  life ;  3  Bla.  Com.,  4th  Dublin 
ed.  183  n. ;   Bac.  Abr.  Court  of  Chancery  (A). 

Many  other  new  writs  were  framed  under  the 
provisions  of  this  statute;  but  this  particular  writ 
was  known  emphatically  by  the  title  here  defined. 
The  writ  Is  now  practically  obsolete.  See  3  Bla. 
Com.  51 ;    Case  ;    Assumpsit. 

CONSISTOR.    A  magistrate.     Jacob  L.  D. 

CONSISTORY.    An  assembly  of  cardinals 

convoked  by  the  pope. 

The  consistory  is  either  public  or  secret.  It  Is 
public  when  the  pope  receives  princes  or  gives 
audience  to  ambassadors;  secret  when  he  fills  va- 
cant sees,  proceeds  to  the  canonization  of  saints, 
or  judges  and  settles  certain  contestations  sub- 
mitted to  him. 

A  tribunal  (prcetorium). 

CONSISTORY  COURT.  The  courts  of  dio- 
cesan bishops  held  in  their  several  cathedrals 
{before  the  bishop's  chancellor,  or  commis- 
sary, who  is  the  judge)  for  the  trial  of  all 
ecclesiastical  causes  arising  within  their  re- 
spective dioceses,  and  also  for  granting  pro- 
bates and  administrations.  Originally  the 
"Chancellor"  or  "Official"  of  the  bishop  usual- 
ly presided.  In  time  he  came  to  be  a  per- 
manent judge,  but  the  bishop  could  withdraw 
cases  from  his  cognizance  and  hear  them 
himself,  or  delegate  jurisdiction  over  certain 
parts  of  the  diocese  to  his  "commissary" ;  1 
Holdsw.  Hist.  E.  L.  369,  citing  L.  R.  1902,  1  K. 
B.  816.  A  Consistory  Court  of  London  still 
exists.  From  the  sentence  of  these  courts 
an  appeal  files  to  the  Provincial  Court  of  the 
archbishop  of  each  province  respectively.  2 
Steph.  Com.  230;  3  id.  430;  3  Bla.  Com.  64; 
1  Woodd.  Lect  145 ;  Halifax,  An.  b.  3,  c.  10, 
n.  12. 

C0NS0LAT0   DEL  MARE.     See  Code. 

CONSOLIDATE.  To  unite  into  one  dis- 
tinct things  or  parts  of  a  thing.  In  a  gen- 
eral sense,  to  unite  into  one  mass  or  body, 
as  to  consolidate  the  forces  of  an  army  or 


various  funds.  In  parliamentary  usage,  to 
consolidate  two  bills  is  to  unite  them  into 
one.  In  law,  to  consolidate  benefices,  actions, 
or  corporations  is  to  combine  them  into  one. 
See  Independent  Dist.  of  Fairview  v.  Dur- 
land,  45  la.  56. 

CONSOLIDATED  FUND.  In  England. 
(Usually  abbreviated  to  Consols.)  A  fund 
for  the  payment  of  the  public  debt 

Formerly,  when  a  loan  was  made  by  government, 
a  particular  part  of  the  revenue  was  appropriated 
for  the  payment  of  the  interest  and  principal.  This 
was  called  the  fund;  and  every  loan  had  its  fund. 
In  this  manner  the  Aggregate  fund  originated  in 
1715;  the  South-Sea  fund  in  1717;  the  General  fund 
in  1717  ;  and  the  Sinking  fund,  into  which  the  sur- 
plus of  these  flowed,  which,  although  intended  for 
the  diminution  of  the  debt,  was  applied  to  the  neces- 
sities of  the  government.  These  four  funds  were 
consolidated  into  one  in  the  year  1787 ;  and  this 
fund   is   the   Consolidated  fund. 

It  is  wholly  appropriated  to  the  payment  of  cer- 
tain specific  charges  and  the  interest  on  the  sums 
originally  lent  the  government  by  individuals,  which 
yield  an  annual  interest  of  three  per  cent,  to  the 
holders.  The  principal  of  the  debt  is  to  be  returned 
only  at  the  option  of  the  government. 

CONSOLIDATION.      In     Civil     Law.      The 

union  of  the  usufruct  with  the  estate  out  of 
which  it  issues,  in  the  same  person ;  which 
happens  when  the  usufructuary  acquires  the 
estate,  or  vice  versa.  In  either  case  the  usu- 
fruct is  extinct.     Lee.  Elm.  Dr.  Rom.  424. 

CONSOLIDATION  OF  CORPORATIONS. 
See  Merger. 

CONSOLIDATION  RULE.  An  order  of 
the  court  requiring  the  plaintiff  to  join  in  one 
suit  several  causes  of  action  against  the  same 
defendant  which  may  be  so  joined  consist- 
ently with  the  rules  of  pleading,  but  upon 
which  he  has  brought  distinct  suits.  Brown 
v.  Scott,  1  Dall.  (Pa.)  147,  1  L.  Ed.  74 ;  Groff 
v.  Musser,  3  S.  &  R.  (Pa.)  264 ;  2  Archb.  Pr. 
ISO.  The  matter  is  regulated  by  statute  in 
many  of  the  states. 

It  may  take  place  in  two  ways:  first,  by  the  usu- 
fructuary surrendering  his  right  to  the  proprietor, 
which  in  the  common  law  is  called  a  surrender; 
secondly,  by  the  release  of  the  proprietor  of  his 
rights  to  the  usufructuary,  which  in  our  law  is 
called  a  release. 

In  Ecclesiastical  Law.  The  union  of  two 
or  more  benefices  in  one.    Cowell. 

In  Practice.  The  union  of  two  or  more  ac- 
tions in  the  same  declaration. 

An  order  of  court,  issued  in  some  cases, 
restraining  the  plaintiff  from  proceeding  to 
trial  in  more  than  one  of  several  actions 
brought  against  different  defendants  but  in- 
volving the  same  rights,  and  requiring  tfie 
defendants  also,  in  sucfi  actions,  to  abide  tbe 
event  of  the  suit  which  is  tried.  It  is  in 
reality  in  this  latter  case  a  mere  stay  of  pro- 
ceedings in  all  the  cases  but  one. 

It  is  often  issued  where  separate  suits  are 
brought  against  several  defendants  founded 
upon  a  policy  of  insurance;  2  Marsh.  Ins. 
701 ;  see  Jackson  v.  Schauber,  4  Cow.  (N.  Y.) 
78;  Sherman  v.  McNitt,  id.  85;  or  against 
several  obligors  in  a  bond ;  3  Chit.  Pr.  645 ; 


CONSOLIDATION  RULE 


621 


CONSPIRACY 


3  C.  &  P.  58.  See  Scott  v.  Brown,  1  N.  & 
McC.  (S.  C.)  417,  note;  Powell  v.  Gray,  1  Ala. 
77;  Dews  v.  Eastham,  5  Yerg.  (Tenn.)  207; 
Sykes  v.  Ins.  Co.,  7  Mo.  477;  Den  v.  Fen,  9 
N.  J.  L.  335 ;  Groff  v.  Musser,  3  S.  &  R.  (Pa.) 
262;  Farmers'  &  Manufacturers'  Bank  v. 
Tracy,  19  Wend.  (N.  Y.)  23. 

A  court  may  consolidate  actions  for  trial 
when  they  involve  the  same  property  and  the 
same  questions  of  law  and  fact  and  the  par- 
ties are  the  same;  Welch  v.  Lynch,  30  App. 
D.  C.  122. 

Where  two  actions  arose  upon  the  same 
transaction,  one  for  trespass  against  de- 
fendant's property,  another  against  his  per- 
son, and  might  have  been  joined,  the  court 
ordered  them  tried  at  the  same  time ;  Holmes 
v.  Sheridan,  1  Dill.  351,  Fed.  Cas.  No.  6,644. 

When  two  actions  are  consolidated,  the 
original  actions  are  discontinued  and  only 
the  consolidated  action  remains ;  Hiscox  v. 
New  Yorker  Staats  Zeitung,  30  Abb.  N.  C. 
(N.  Y.)  131;  id.,  3  Misc.  Rep.  110,  23  N.  Y. 
Supp.  682. 

The  Federal  courts  are  authorized  to  con- 
solidate actions  of  a  like  nature,  or  relative 
to  the  same  question,  as  they  may  deem  rea- 
sonable ;    Rev.  Stat.  §  921. 

CONSOLS.     See  Consolidateo  Fund. 

CONSORTIUM  (Lat.  a  union  of  lots  or 
chances).  A  lawful  marriage.  Union  of  par- 
ties in  an  action. 

The  right  of  the  husband  and  wife  respect- 
ively to  the  conjugal  fellowship,  company,  co- 
operation and  aid  of  the  other. 

Company ;    companionship. 

It  occurs  in  this  last  sense  in  the  phrase  per  quod 
consortium  amisit  (by  which  he  has  lost  the  com- 
panionship), used  when  the  plaintiff  declares  for 
any  bodily  injury  done  to  his  wife  by  a  third  per- 
son,   3  Bla.  Com.   140. 

It  is  not  property,  but  "a  marital  right 
growing  out  of  the  marriage  relation";  Hodge 
v.  Wetzler,  69  N.  J.  L.  490,  55  Atl.  49;  but 
is  treated  as  property  in  a  broader  sense  in 
some  cases ;  Jaynes  v.  Jaynes,  39  Hun  (N. 
Y.)  40;  Deitzman  v.  Mullin,  10S  Ky.  610,  57 
S.  W.  247,  50  L.  R.  A.  SOS,  94  Am.  St.  Rep. 
390;  Warren  v.  Warren,  89  Mich.  123,  50 
N.  W.  842,  14  L  R.  A.  545.  "It  usually  in- 
cludes the  person's  affection,  society  and 
aid,"  and,  as  to  it,  the  husband  and  wife 
are  equal ;  Bennett  v.  Bennett,  116  N.  Y. 
5S4,  23  N.  E.  17,  6  L.  R.  A.  553,  where  the 
term  is  discussed  at  length.  See  Husband 
and  Wife. 

CONSPIRACY  (Lat.  con,  together,  spiro,  to 
breathe).  A  combination  of  two  or  more  per- 
sons by  some  concerted  action  fo  accomplish 
some  criminal  or  unlawful  purpose,  or  to  ac- 
complish some  purpose,  not  in  itself  crim- 
inal or  unlawful,  by  criminal  or  unlawful 
means.  Pettibone  v.  U.  S.,  148  U.  S.  203,  13 
Sup.  Ct.  542,  37  L.  Ed.  419;  Com.  v.  Hunt,  4 
Mete.  (Mass.)  Ill,  38  Am.  Dec.  346;    People 


v.  Mather,  4  Wend.  (N.  Y.)  229,  21  Am.  Dec. 
122;  State  v.  Burnham,  15  N.  H.  396;  State 
v.  Buchanan,  5  H.  &  J.  (Md.)  317,  9  Am.  Dec. 
534;  Collins  v.  Com.,  3  S.  &  It.  (Pa 
Stale  v.  Rowley,  12  Conn.  101;  11  CI.  &  F. 
155;  Alderman  v.  People,  4  Mich.  411.  69 
Am.  Dec.  321 ;  Breitenberger  v.  Schmidt,  3S 
111.  App.  168. 

Lord  Denman  defines  conspiracy  as  a  com- 
bination for  accomplishing  an  unlawful  end 
or  a  lawful  end  by  unlawful  means;  4  B. 
&  Ad.  345. 

Criminal  Conspiracy.  Conspiracies  formed 
to  commit  crimes,  or  to  do  anything  unlaw- 
ful, were  first  treated  as  substantive  offenses 
by  the  Star  Chamber;  2  Steph.  II.  C.  L.  UU7 ; 
before  that,  a  conspiracy  only  extended  to 
taking  civil  and  criminal  proceedings  mali- 
ciously;  3  Holdsw.  II.  E.  L.  313.  In  a  prose- 
cution for  a  conspiracy  at  common  law  it 
was  neither  necessary  to  aver  nor  to  prove 
an  overt  act;  Bannon  v.  U.  S.,  156  U.  S.  468, 
15  Sup.  Ct.  467,  39  L.  Ed.  494.  So  long  as  the 
design  to  do  an  unlawful  act,  or  to  do  a  law- 
ful act  by  unlawful  means,  rests  in  intention 
only,  it  is  not  indictable;  but  when  two  or' 
more  agree  to  carry  it  into  effect,  the  very 
plot  is  an  act  in  itself  and  the  act  of  each 
of  the  parties,  promise  against  promise,  act 
against  act;  L.  R.  3  H.  L.  317,  approved  in 
[1901]  A.  C.  529;    [19051  2  K.  B.  746. 

An  indictment  for  a  conspiracy  to  compass 
or  promote  a  criminal  or  unlawful  purpose 
must  set  forth  that  purpose,  fully  and  clear- 
ly ;  and  an  indictment  for  a  conspiracy  to 
compass  or  promote  a  purpose  not  in  itself 
criminal  or  unlawful,  by  the  use  of  criminal 
or  unlawful  means,  must  set  forth  the  means 
intended  to  be  used;  Com.  v.  Hunt,  4  Mete. 
(Mass.)  Ill,  38  Am.  Dec.  346. 

The  participation  in  a  common  plan  by  two 
or  more  persons  is  not  in  itself  a  criminal 
conspiracy ;  in  order  to  make  it  such,  the 
motives  of  those  who  enter  into  the  combina- 
tion must  be  corrupt;  People  v.  Flack.  126 
N.  Y.  324,  26  N.  E.  267.  11  L.  R.  A.  807 ;  Wood 
v.  State,  47  N.  J.  L.  461,  1  Atl.  509;  but  if 
one  member  of  the  combination  has  no  cor- 
rupt motive  when  entering  into  it.  but  aft- 
erward becomes  aware  of  its  Illegality  and 
remains  a  member,  he  is  criminally  liable; 
U.  S.  v.  Mitchell,  l  Hughes  439,  Fed,  Caa 
No.  15,790.  So  persons  who  agree  in 
faith  to  do  an  act  innocent  in  itself  do  n<>t 
become  guilty  of  conspiracy  if  it  is  after- 
wards ascertained  that  the  act  is  f- n-hidden 
by  statute:    People  v.   Powell.  63  X.  V.  88. 

In  the  definitions  the  terms  criminal  or 
unlawful  are  used,  because  it  is  manifest 
that  many  acts  are  unlawful  which  are  i i « •  r 
punishable  by  indictment  or  other  public 
prosecution,  and  yet  there  is  no  doubt  that 
a  combination  by  numbers  to  do  them  is  an 
unlawful  conspiracy  and  punishable  by  in- 
dictment: Stale  v.  Rowley,  12  Conn.  101; 
State  v.  Burnham.  15  N.  H.  •"•00;  People  v. 
Richards,  1  Mich.  216,  51  Am.  Dec  75;   11 


CONSPIRACY 


622 


CONSPIRACY 


Q.  B.  245;  Twitchell  v.  Com.,  9  Pa.  211; 
State  v.  Shooter,  8  Rich.   (S.  C.)   72. 

Of  this  character  was  a  conspiracy  to 
cheat  by  false  pretences  without  false  tok- 
ens, when  a  cheat  by  false  pretences  only  by 
a  single  person  was  not  a  punishable  offence ; 
11  Q.  B.  245.  So  a  combination  to  destroy 
the  reputation  of  an  individual  by  verbal 
calumny  of  itself  is  not  indictable ;  per  Shaw, 
C.  J.,  Com.  v.  Hunt,  4  Mete.  (Mass.)  123,  38 
Am.  Dec.  346.  So  a  conspiracy  to  induce  and 
persuade  a  young  woman,  by  false  repre- 
sentations, to  leave  the  protection  of  her 
parent's  house,  with  a  view  to  facilitate  her 
prostitution;  Mifflin  v.  Com.,  5  W.  &  S.  (Pa.) 
461,  40  Am.  Dec.  527 ;  2  Den.  C.  Cas.  79 ;  and 
to  procure  an  unmarried  girl  of  seventeen  to 
become  a  prostitute;  4  F.  &  F.  160;  to  pro- 
cure a  woman  to  be  married  by  a  mock  cere- 
mony, whereby  she  was  seduced ;  State  v. 
Savoye,  48  la.  562.  And  see  Anderson  v. 
Com.,  5  Rand.  (Va.)  627,  16  Am.  Dec.  776; 
State  v.  Murphy,  6  Ala.  765,  41  Am.  Dec.  79. 
So  a  conspiracy,  by  false  and  fraudulent  rep- 
resentations that  a  horse  bought  by  one  of 
the  defendants  from  the  prosecutor  was  un- 
sound, to  induce  him  to  accept  a  less  sum  for 
the  horse  than  the  agreed  price;  1  Dearsl. 
337.  A  conspiracy  by  traders  to  dispose  of 
their  goods  in  contemplation  of  bankruptcy, 
with  intent  to  defraud  their  creditors ;  1  F. 
&  F.  33. 

The  obtaining  of  goods  on  credit  by  an  in- 
solvent person  without  disclosing  his  insol- 
vency, and  without  having  any  reasonable  ex- 
pectation of  being  able  to  pay  for  such  goods 
in  and  by  means  of  the  fair  and  ordinary 
course  of  his  business,  is  not  of  itself  such 
an  unlawful  act  as  may  be  the  subject  of  an 
action  for  conspiracy ;  though  it  would  be 
otherwise,  it  seems,  in  the  case  of  a  pur- 
chase made  without  any  expectation  of  pay- 
ment. But  the  obtaining  possession  of  goods 
under  the  pretence  of  paying  cash  for  them 
on  delivery,  the  buyer  knowing  that  he  has 
no  funds  to  pay  with,  and  appropriating  the 
goods  to  his  own  use  in  fraud  of  the  seller, 
is  such  a  fraud  or  cheat  as  may  be  the  sub- 
ject of  a  charge  of  conspiracy ;  Com.  v.  East- 
man, 1  Cush.  (Mass.)  189,  48  Am.  Dec.  596. 

A  combination  to  go  to  a  theatre  to  hiss 
an  actor;  2  Campb.  369;  6  Term  628;  to 
indict  for  the  purpose  of  extorting  money ;" 
4  B.  &  C.  329 ;  to  charge  a  person  with  being 
the  father  of  a  bastard  child;  1  Salk.  174; 
to  coerce  journeymen  to  demand  a  higher 
rate  of  wages;  6  Term  619;  People  v.  Fish- 
er, 14  Wend.  (N.  Y.)  9,  28  Am.  Dec.  501 ;  to 
charge  a  person  with  poisoning  another ;  F. 
Moore  S16 ;  to  affect  the  price  of  public 
stocks  by  false  rumors;  3  M.  &  S.  67;  to 
prevent  competition  at  an  auction;  6  C.  & 
P.  239;  to  cheat  by  a  fraudulent  prospectus 
ol  a  projected  company  and  by  false  ac- 
counts ;  11  Cox,  Cr.  Ca.  414 ;  by  false  ac- 
counts between  partners;  L.  R.  1  C.  C.  274; 
by  a.  mock  auction ;  11  Cox,  Cr.  Ca.  404 ;  have 


each  been  held  indictable  for  conspiracy ;  as 
was  an  association  of  retail  coaldealers  in  a 
city  to  fix  prices  and  prevent  a  person  not  a 
member  from  obtaining  coal  from  whole- 
salers; People  v.  Sheldon,  66  Hun  590,  21 
N.  Y.  Supp.  859 ;  id.,  139  N.  Y.  251,  34  N.  B. 
785,  23  L.  R.  A.  221,  36  Am.  St.  Rep.  690. 
So  it  is  a  crime  for  two  or  more  persons  to 
conspire  to  cheat  and  defraud  another  out 
of  his  property,  but  in  such  case  the  indict- 
ment must  set  forth  the  means  proposed  to 
be  used  to  accomplish  the  purpose ;  U.  S.  v. 
Cruikshank,  92  U.  S.  542,  558,  23  L.  Ed.  588. 
In  order  to  render  the  offence  complete, 
it  is  not  necessary  that  any  act  should  be 
done  in  pursuance  of  the  unlawful  agreement 
entered  into  between  the  parties,  or  that  any 
one  should  have  been  defrauded  or  injured 
by  it.  The  conspiracy  is  the  gist  of  the 
crime ;  9  Co.  55 ;  28  L.  T.  N.  S.  75 ;  Com.  v. 
Judd,  2  Mass.  337,  3  Am.  Dec.  54;  Com.  v. 
Tibbetts,  2  Mass.  538 ;  Collins  v.  Com.,  3  S.  & 
R.  (Pa.)  220;  People  v.  Mather,  4  Wend.  (N. 
Y.)  259,  21  Am.  Dec.  122 ;  State  v.  Norton,  23 
N.  J.  L.  33;  Steele  v.  Kinkle,  3  Ala.  360; 
State  v.  Buchanan,  5  Harr.  &  J.  (Md.)  317, 

9  Am.  Dec.  534;  State  v.  Brady,  107  N.  C. 
822,  12  S.  E.  325 ;  U.  S.  v.  Lancaster,  44  Fed. 
896,  10  L.  R.  A.  333.    But  see  Torrey  v.  Field, 

10  Vt.  353.  Where  persons  enter  on  an  un- 
lawful purpose,  with  the  intent  to  aid  or  en- 
courage each  other  in  carrying  out  their  de- 
sign, they  are  each  criminally  responsible  for 
everything  resulting  from  such  purpose 
whether  specifically  contemplated  or  not; 
Turner  v.  State,  97  Ala.  57,  12  South.  54; 
Boyd  v.  U.  S.,  142  U.  S.  450,  12  Sup.  Ct.  292, 
35  L.  Ed.  1077. 

It  is  a  crime  for  several  persons,  out  of 
malice,  to  agree  to  induce  many  others  not 
to  enter  into  contracts  with  a  certain  per- 
son ;  see  [1901]  A.  C.  531 ;  or  for  strangers 
to  a  contract,  and  without  just  excuse,  to 
combine  in  inducing  a  breach  of  it;  [1905] 
A.  C.  239;  otherwise,  in  most  cases,  if  they 
act  merely  out  of  self-interest ;  see  23  Q.  B. 
D.  618.  That  may  be  unlawful  if  done  by 
several,  which  is  not  if  done  by  one ;  [1892] 
A.  C.  45,  per  Lord  Bramwell.  One  may  be 
indicted  alone  for  a  conspiracy  "with  other 
persons  to  the  jury  unknown"  ;   94  L.  T.  887. 

A  criminal  conspiracy  as  boycotting,  may 
arise  out  of  acts  which  in  themselves  might 
be  done  by  one  person  without  preconcert 
with  others.  The  parties  must  be  numerous ; 
they  must  be  actuated  by  ill-will,  and  their 
conduct  must  be  calculated  to  do  harm  to 
the  person  intended;    14  Cox  505. 

Conspiracy  may  be  proved  by  showing  the 
declarations,  acts  and  conduct  of  the  con- 
spirators ;  State  v.  Ryan,  47  Or.  338,  82  Pac. 
703,  1  L.  R.  A.  (N.  S.)  862. 

Where  it  is  necessary  that  two  persons 
concur  in  the  commission  of  an  act  to  make 
it  a  crime,  as  in  case  of  bigamy,  adultery  or 
the  like,  the  agreement  is  said  to  form  part 
of  the  crime  and  not  a  conspiracy;   Shannon 


CONSPIRACY 


623 


CONSPIRACY 


v.  Com.,  14  Pa.  226 ;  Miles  v.  State,  58  Ala. 
390;  the  combination,  which  is  the  essential 
of  conspiracy,  is  not  an  aggravation  of,  but 
necessary  to  constitute,  the  offense,  and  prob- 
ably such  an  agreement  not  coupled  with  an 
overt  act  would  be  a  mere  attempt;  2  BIsh. 
Crim.  L.  (8th  ed.)  §  184,  n.  4,  cited  in  20 
llarv.  L.  Rev.  63,  where  the  matter  is  illus- 
trated by  TJ.  S.  v.  Guilford,  146  Fed.  298, 
where  the  indictment  was  for  conspiracy  to 
violate  the  Elkins  act  in  giving  and  taking 
rebates  and  the  fact  was  proved,  there  being 
three  takers  and  two  givers  besides  two  oth- 
er persons  who  were  go-betweens  or  agents. 
It  was  held  not  a  conspiracy,  upon  the  prin- 
ciple stated. 

Where  three  defendants  were  jointly  ar- 
raigned on  a  charge  of  conspiracy,  and  one 
of  them  pleaded  guilty  and  the  other  two 
were  acquitted  on  pleas  of  not  guilty,  it  was 
held  that  the  judgment  against  the  one  who 
pleaded  guilty  must  be  vacated ;  [1902]  2  K. 

B.  339 ;  this  rule  it  has  been  said  was  "tacit- 
ly assumed  by  the  early  English  decisions, 
and  has  been  expressly  recognized  by  the 
later  ones."  1  Stra.  193 ;  5  B.  &  C.  538 ;  12 
Q.  B.  D.  241;  16  Q.  B.  832.  The  same  rule 
is  adopted  in  some  states  in  certain  cases  in 
which  the  offense  was  necessarily  a  joint  one 
committed  by  two  persons ;  Turpin  v.  State, 
4  Blackf.   (Ind.)   72;    State  v.  Mainor,  28  N. 

C.  340 ;  State  v.  Rinehart,  106  N.  C.  787,  11 
S.  E.  512 ;  and  repudiated  in  others ;  Alonzo 
v.  State,  15  Tex.  App.  378,  49  Am.  Rep.  207; 
State  v.  Caldwell,  8  Baxt.  (Tenn.)  576.  It 
is  argued  in  a  note  on  the  subject  that  the 
last  two  cases  are  more  in  accord  with  rea- 
son ;  as  one  defendant  might  be  a  party  to 
a  joint  act  without  criminal  intent,  and  in 
the  first  English  case  cited  the  plea  of  guilty 
outweighs  the  verdict,  which  means  nothing 
more  than  not  proven;    16  llarv.  L.  Rev.  142. 

Civil  Liability.  It  is  an  early  saying  in 
the  law  that  a  conspiracy  of  itself  gives  no 
cause  of  action.  There  must  be  some  overt 
act  by  one  of  the  parties  to  the  injury  of  an- 
other, Bowen  v.  Matheson,  14  Allen  (Mass.) 
499  (though  there  is  a  dictum,  contra,  in 
Patten  v.  Gurney,  17  Mass.  1S2,  9  Am.  Dec. 
141);  Hutchins  v.  Hutchins,  7  Hill  (N.  Y.) 
104;  Bush  v.  Sprague,  51  Mich.  41,  16  N. 
W.  222;  Hauser  v.  Tate,  85  N.  C.  81,  39  Am. 
Rep.  689 ;  1  lid.  Rayin.  374;  and  an  act  which 
is  lawful  wheu  committed  by  one  will  not 
be  rendered  unlawful  when  two  or  more  con- 
spire to  do  it;  Boston  v.  Simmons,  150  Mass. 
461,  23  N.  E.  210,  6  L.  R.  A.  629,  15  Am.  St. 
Rep.  230;  Martens  v.  Reilly,  109  Wis.  464,  84 
N.  W.  840;  De  Wulf  v.  Dix,  110  la.  553,  81 
N.  W.  779;  Adler  v.  Fenton,  24  How.  (U.  S.) 
407,  16  L.  Ed.  696 ;  [1898]  1  Q.  B.  181 ;  but 
it  is  held  otherwise  in  Cote  v.  Murphy,  159 
Pa.  420,  2S  Atl.  190,  23  L.  R.  A.  135,  39  Am. 
St  Rep.  686 ;  and  this  is  supported  by  a 
dictum  in  State  v.  Huegin.  110  Wis.  189,  85 
N.  W.  1046,  62  L.  R.  A.  700. 

Civil  actions  have  been  sustained  for  con- 


spiracies to  injure  in  person  or  reputation, 
as    by    maliciously    prosecuting;      Breux    v. 
Domec,    18    Cal.    83;     or    by    making    false 
charges;    Irvine  v.  Elliott,  208   Pa.   15 
Atl.  859;     or  to   injure   one   in   proj»erty  or 
business;    Van    Horn  v.  Van   Horn.   52   N.   J. 
L.  284,  20  Atl.  485,  10  L.  EL  A.  184;   Garst  v. 
Charles,  1&7  Mass.  144,  72  x.   k.  B39;    Map- 
stricfe  v.  Eamge,  '•>  Neb'  :;'.«»,  2  X.  W.  7 
Am.  Rep.  415;    Casey  v.  Typographical  I 
No.  3,  45  Fed.  135,  12  L.  It.  A.  193 
Q.  B.  715;    Kartell  v.  White.  185 
69  N.  E.  10S5,  64  L.  K.  A.  260,   102  Am.  St. 
Etep.  'HI  ;    as  by  fraudulent  use  of  Legal  pro- 
ceedings;   Yerplanck  v.  Van  Luren,  76  N.  Y. 
217. 

An  association  of  ship  owners  to  secure  a 
profitable  and  exclusive  carrying  trade,  hav- 
ing agreed  to  limit  the  number  of  ships  to  be 
sent  by  members,  and  to  allow  a  rebate  on 
freights  to  all  shippers  who  dealt  only  with 
members,  is  not  an  actionable  conspiracy,  as 
it  was  done  with  the  lawful  object  of  pro- 
tecting and  increasing  trade  and  profit  and 
no  unlawful  means  had  been  used;  [1892] 
A.  C.  25,  where  the  House  of  Lords  affirmed 
the  judgment  in  23  Q.  B.  D.  598,  where  the 
C.  A.  affirmed  the  judgment  of  Lord  Cole 
ridge  in  21  Q.  B.  D.  oil. 

Corporations  as  Conspirators.  The  law  of 
conspiracy  is  applicable  to  corporations,  and 
a  combination  of  corporations  for  an  unlaw- 
ful purpose,  either  as  an  end  or  means,  is  a 
conspiracy  in  any  case  where  a  combination 
of  natural  persons  would  be  such,  and  the 
converse  of  the  proposition  is  equally  true; 
Noyes,  Intercorp.  Rel.  §  32d.  "We  enter- 
tain," said  the  New  York  Court  of  Appeals, 
"no  doubt  that  an  action  against  a  corpora- 
tion may  be  maintained  to  cover  da: 
caused  by  a  conspiracy,"  and  "it  is  well  set- 
tled .  .  .  that  the  malice  and  wicked  in- 
tent needful  to  sustain  such  action,  may  be 
imputed  to  such  corporations"  ;  Buffalo  Lu- 
bricating Oil  Co.  v.  Standard  Oil  Co.,  106  N. 
Y.  670.  12  N.  E.  826;  Transportation  Co.  v. 
Standard  Oil  Co.,  50  W.  Va.  611,  40  S.  E 
56  L.  R,  A.  S04,  S8  Am.  St.  Rep.  S95.  Both  of 
these  were  civil  actions  against  the  Standard 
Oil  Company,  but  apparently  the  same  rea- 
son should  apply  in  making  a  corporation 
liable  for  criminal  conspiracy  as  well  as  civil, 
and  such  was  the  opinion  of  Judge  No] 
expressed  in  the  section  of  his  text  book 
above  cited.  But  this  view  was  authorita- 
tively declared  when  an  Indictment  and  con- 
viction of  the  same  company  (its  individual 
co-defendant  being  acquitted)  were  sustained 
on  appeal.  The  court  said:  "Corporations 
can  unquestionably  commit  and  be  guilty  of 
a  criminal  conspiracy  denounced  by  the  stat- 
ute, as  it  so  expressly  enacts,  and  they,  there- 
fore, must  be  counted,"  and  further  .that  "in- 
dependent of  statute,  upon  principle  and  in 
furtherance  of  sound  public  policy,  both  cor- 
porations and  their  officers  and  agents  who 
engage  in  the  conspiracy  must  be  held  to  be 


CONSPIRACY 


624 


CONSPIRACY 


parties  to  it" ;  Standard  Oil  Co.  v.  State,  | 
117  Tenn.  618,  100  S.  W.  705,  10  L.  R.  A.  (N. 
S.)  1015.  Where  it  is  provided,  as  in  the 
laws  of  several  states,  that  corporations  as 
well  as  individuals  shall  be  subject  to  the 
provisions  of  anti-trust  laws  the  construction 
given  to  these  laws  has  been  that  they  "did 
not  contemplate  the  commission  of  an  offense 
by  an  impalpable  abstraction,  which  could 
neither  think  nor  act;  but  it  was  intended 
to  bind  this  corporate  entity  by  the  imputed 
actions  of  its  human  agencies";  National 
Lead  Co.  v.  Paint  Store  Co.,  80  Mo.  App.  247; 
State  v.  Ins.  Co.,  152  Mo.  37,  52  S.  W.  595,  45 
L.  R.  A.  363. 

Conspiracy  under  Federal  Laws.  Conspir- 
acies to  prevent  witnesses  from  testifying,  to 
impede  the  course  of  justice,  to  hinder  citi- 
zens from  voting,  to  prevent  persons  from 
holding  office,  to  defraud  the  United  States 
by  obtaining  approval  of  false  claims,  to  levy 
war  against  the  United  States,  to  impede  the 
enforcement  of  the  laws,  etc.,  etc.,  are  made 
punishable  by  acts  of  congress ;  U.  S.  R.  S. 
Index,  Conspiracy. 

In  the  absence  of  damage,  the  simple  act 
of  conspiracy  does  not  furnish  ground  for 
a  civil  action;  Robertson  v.  Parks,  76  Md. 
118,  24  Atl.  411. 

After  a  conspiracy  has  come  to  an  end, 
the  admissions  of  one  conspirator  by  way 
of  narrative  of  past  facts  are  not  admis- 
sible in  evidence  against  the  others;  Brown 
v.  U.  S.,  150  U.  S.  93,  14  Sup.  Ct.  37,  37  L. 
Ed.  1010;  Logan  v.  U.  S.,  144  U.  S.  263,  12 
Sup.  Ct.  617,  36  L.  Ed.  429. 

In  a  prosecution  under  U.  S.  R.  S.  §  5480, 
as  amended,  for  a  conspiracy  to  defraud  by 
means  of  the  postoffice,  three  matters  of  fact 
must  be  charged  in  the  indictment  and  estab- 
lished by  the  evidence:  1.  That  the  persons 
charged  devised  a  scheme  to  defraud ;  2.  that 
they  intended  to  effect  this  scheme  by  open- 
ing or  intending  to  open  correspondence  with 
some  other  person  through  the  postoffice  es- 
tablishment or  by  inciting  such  other  person 
to  open  communication  with  them ;  3.  and 
that  in  carrying  out  such  scheme  such  per- 
son must  have  either  deposited  a  letter  or 
packet  in  the  postoffice,  or  taken  or  received 
one  therefrom;  Stokes  v.  U.  S.,  157  U.  S. 
187,  15  Sup.  Ct.  617,  39  L.  Ed.  667. 

Where  parties  are  on  trial  for  conspiracy 
to  stop  the  mails,  contemporary  telegrams 
from  different  parts  of  the  country,  an- 
nouncing the  stoppage  of  mail  trains,  are  ad- 
missible in  evidence  against  the  defendants 
if  brought  home  to  them,  and  so,  too,  are 
acts  and  declarations  of  persons  not  parties 
to  the  record  if  it  appears  that  they  were 
made  in  carrying  the  conspiracy  into  effect ; 
Clune  v.  U.  S.,  159  U.  S.  590,  16  Sup.  Ct.  125, 
40  L.  Ed.  269. 

Under  R.  S.  §  5440,  the  conspiracy  to  com- 
mit a  crime  against  the  United  States  is  it- 
self the  offence,  without  reference  to  whether 
the  crime  is  consummated,  or  agreed  upon 


by  the  conspirators  in  all  its  details;  an  In- 
dictment charging  the  accused  with  a  con- 
spiracy to  commit  the  crime  of  subornation 
of  perjury  was  held  in  this  case  to  be  suffi- 
cient although  the  precise  persons  to  be 
suborned,  and  the  time  and  place  of  such 
suborning  were  not  particularized;  William- 
son v.  U.  S.,  207  U.  S.  425,  28  Sup.  Ct.  1G3, 
52  L.  Ed.  27S.  A  conspiracy  under  that  stat- 
ute does  not  necessarily  involve  a  direct 
pecuniary  loss,  but  may  exist  to  impair,  ob- 
struct or  defeat  the  lawful  function  of  any 
department  of  tne  government ;  Haas  v.  Hen- 
kel,  216  U.  S.  462,  30  Sup.  Ct  249,  54  L.  Ed. 
569,  17  Ann.  Cas.  1112.  The  words  "unlaw- 
fully did  conspire  to  defraud  the  United 
States,"  followed  by  a  statement  of  the  na- 
ture and  purpose  of  the  conspiracy  and  the 
acts  done  to  effect  its  object,  is  sufficient ; 
Wright  v.  U.  S.,  10S  Fed.  805,  48  C.  C.  A.  37, 
where  the  subject  is  very  fully  discussed.  It 
is  a  conspiracy  under  that  act  to  do  an  act 
which  Congress  has  made  a  crime,  if  two  or 
more  conspire  to  do  it,  and  Congress  may 
make  the  punishment  for  conspiring  greater 
than  for  committing  the  crime  itself ;  U.  S. 
v.  Stevenson,  215  U.  S.  200,  30  Sup.  Ct.  37, 
54  L.  Ed.  157. 

The  crime  is  complete  when  the  conspiracy 
is  shown ;  it  is  not  necessary  to  aver  that  it 
succeeded ;  U.  S.  v.  Greene,  115  Fed.  343. 

Upon  a  charge  of  conspiracy  to  defraud,  a 
somewhat  wide  latitude  is  always  allowed  in 
the  introduction  of  circumstantial  evidence 
to  prove  the  intent;  U.  S.  v.  Greene,  108  Fed. 
816. 

The  jurisdiction  is  in  the  district  in  which 
the  conspiracy  was  entered  into,  although  the 
overt  act  carrying  it  out  is  within  another 
jurisdiction ;  Hyde  v.  Shine,  199  U.  S.  62,  25 
Sup.  Ct.  760,  50  L.  Ed.  90. 

Where  a  conspiracy  had  been  formed  more 
than  the  period  of  the  statute  of  limitations 
before  the  indictment  and  an  overt  act  is 
committed  within  the  statutory  period,  if  the 
existence  of  the  conspiracy  as  well  as  the 
overt  act  are  proved,  the  prosecution  may  be 
sustained;  Ware  v.  U.  S.,  154  Fed.  577,  84 
C  C.  A.  503,  12  L.  R.  A.  (N.  S.)  1053,  12 
Ann.  Cas.  233,  where  the  subject  is  thorough- 
ly discussed  and  the  cases  collected  by  San- 
born, C.  J.,  and  in  a  note  to  the  last  citation. 

A  federal  court  has  no  jurisdiction,  under 
the  13th  Amendment,  of  a  charge  of  con- 
spiracy made  and  carried  out  in  a  state  to 
prevent  its  citizens  of  African  descent  be- 
cause of  their  color  and  race  from  making  or 
carrying  out  contracts  and  agreements  of 
labor ;  Hodges  v.  U.  S.,  203  U.  S.  1,  27  Sup. 
Ct.  6,  51  L.  Ed.  65. 

On  a  bill  alleging  a  malicious  conspiracy 
to  interfere  with  carrying  th"e  mails  and  with 
interstate  commerce,  an  injunction  may  be 
granted  to  restrain  the  ordering  or  causing  a 
strike  of  the  carrier's  employes;  Wabash  R. 
Co.  v.  Hannahan,  121  Fed.  563.  No  civil  ac- 
tion lies  for  conspiracy,  unless  there  be  an 


CONSPIRACY 


625 


CONSTABLE 


•vert  act  that  results  in  damage  to  the  plain- 
tiff; Nalle  v.  Oyster,  230  U.  S.  165,  33  Sup. 
Ct.  1043,  57  L.  Ed.  . 

Some  writers  consider  that  there  is  in  this 
country  a  tendency  to  extend  the  doctrine  of 
criminal  conspiracy  and  utilize  it  for  the  in- 
dictment of  persons  suspected  of  crime  of 
which  there  is  difficulty  in  obtaining  suffi- 
cient proof.  This  tendency  is  the  subject  of 
extended  discussion  in  an  article  on  "The 
Judge-Made  Law  of  Conspiracy,"  by  F.  P. 
Blair,  in  37  Am.  L.  Rev.  33,  in  which  the 
author  contends  that  there  has  been  a  de- 
parture from  the  common  law  upon  this  sub- 
ject It  contains  a  valuable  enumeration  and 
discussion  of  the  early  English  cases  on  the 
subject  of  conspiracy. 

As  to  conspiracies  in  connection  with  labor 
and  labor  unions,  see  Boycott;  Labor  Un- 
ion; Strike;  Combination;  Restraint  of 
Trade. 

CONSPIRATORS.  Persons  guilty  of  a  con- 
spiracy. 

CONSTABLE.  An  officer  wnose  duty  it  is 
to  keep  the  peace  Ll  the  district  which  is  as- 
signed to  him.     See  Sheriff. 

The  most  satisfactory  derivation  of  the  term  and 
history  of  the  origin  of  this  office  is  that  which 
deduces  it  from  the  French  contestable  (Lat.  comes- 
gtabuli),  who  was  an  officer  second  only  to  the  king. 
He  might  take  charge  of  the  army,  wherever  it 
was,  if  the  king  were  not  present,  and  had  the 
general  control  of  everything  relating  to  military 
matters,  as  the  marching  troops,  their  encampment, 
provisioning,   etc.     Guyot,  Rep.   Univ. 

The  same  extensive  duties  pertained  to  the  con- 
stable of  Scotland.     Bell,  Diet. 

The  duties  of  this  officer  in  England  seem  to  have 
been  first  fully  defined  by  the  stat,  Westm.  (13  Edw. 
I.);  and  question  has  been  frequently  made  whether 
the  office  existed  in  England  before  that  time.  1 
Bla.  Com.  356.  It  seems,  however,  to  be  pretty  cer- 
tain that  the  office  in  England  is  of  Norman  origin, 
being  introduced  by  William,  and  that  subsequently 
the  duties  of  the  Saxon  tithing-men,  borsholders, 
etc.,  were  added  to  its  other  functions.  See  Cowell; 
Wlllc.  Const.  ;    1   Bla.    Com.  356 ;    1  Poll.  &   M.  542. 

High  constables  were  first  ordained,  ac- 
cording to  Blackstone,  by  the  statute  of 
Westminster,  though  they  were  known  as 
efficient  public  officers  long  before  that  time. 
1  Sharsw.  Bla.  Com.  356.  They  were  ap- 
pointed for  each  franchise  or  hundred  by 
the  leet,  or,  in  default  of  such  appointment, 
by  the  justices  at  quarter-sessions.  Their 
first  duty  is  that  of  keeping  the  king's  peace. 
In  addition,  they  are  to  serve  warrants,  re- 
turn lists  of  jurors,  and  perform  various  oth- 
er services  enumerated  in  Coke,  4th  Inst.  267; 
3  Steph.  Com.  47. 

The  parish  constables,  under  various 
names,  were  probably  the  successors  of  the 
old  reeves  in  the  townships.  In  each  hun- 
dred, and  in  many  franchises,  there  were  also 
high  constables,  or  similar  officers  with  other 
names,  who  corresponded  with  the  parish 
constables  in  the  townships.  They  continued 
to  be  appointed  till  of  late  years,  but  their 
duties  became  almost  nominal,  and  were 
abolished  practically  in  I860,  rarish  con- 
stables continued  to  be  appointed  till  1S72. 
Bouv.— 40 


Up  to  1829  they  were  the  only  body  of  men, 
except  the  watchmen  in  cities  and  boroughs, 
charged  with  the  duty  of  apprehending  crim- 
inals and  preventing  crime.     1  Steph.  Cr.  L. 

In    some  cities   and    towns   in    t. 
States    there    are    officers    called    high    con- 
stables, who  are  the  principal  police  officers 
in  their  jurisdiction. 

Petty  constables  are  inferior  officers  in 
every  town  or  parish,  subordinate  to  the  hiirh 
constable.  They  perform  the  duties  of  head- 
borough,  tithlng-man,  or  borsholder,  and,  in 
addition,  their  more  modern  duties  apper- 
taining to  the  keeping  the  peace  within  their 
town,  village,  or  tithing. 

In  the  United  States,  generally,  petty  con- 
stables only  are  retained,  their  duties  being 
generally  the  same  as  those  of  constables  in 
England  prior  to  the  5  &  0  Vict.  c.  109,  in- 
cluding a  limited  judicial  power  as  conserva- 
tors of  the  peace,  a  ministerial  power  for  the 
service  of  writs,  etc.,  and  some  other  duties 
not  strictly  referable  to  either  of  these  heads. 
Their  immunities  and  indemnities  are  pro- 
portioned to  their  powers,  and  are  quite  ex- 
tensive. See  1  Sharsw.  Bla.  Com.  356,  n.  ; 
Arrest. 

CONSTABLE  OF  A  CASTLE.  The  ward- 
en or  keeper  of  a  castle;  the  castellain. 
Stat.  Westm.  1,  c.  7  (3  Edw.  I.);  Spehnan. 
Gloss. 

The  constable  of  Dover  Castle  was  also  warden  of 
the  Cinque  Ports.  There  was  besides  a  constable  of 
the  Tower,  as  well  as  other  constables  of  castles  of 
less   note.     Cowell ;     Lambard,  Const. 

CONSTABLE  OF  ENGLAND.  His  office 
consisted  in  the  care  of  the  common  peace 
of  the  realm  in  deeds  of  arms  and  matters 
of  war.     Lambard,  Const.  4. 

He  was  to  regulate  all  matters  of  chivalry, 
tournaments  and  feats  of  arms  which  were 
performed  on  horseback.  3  Steph.  Com.  47. 
He  held  the  court  of  chivalry,  besides  sit- 
ting in  the  curia  regis.    4  Bla.  Com.  92. 

The  office  is  disused  in  England,  except  on 
coronation-days  and  other  such  occasions  of 
state,  and  was  last  held  by  the  Duke  of 
Buckingham,  under  Henry  VIII.  The  title  Ls 
Lord  High  Constable  of  England.  3  Steph. 
Com.  47;  1  Bla.  Com.  355;  2  Grose.  Mil. 
Antiq.  216. 

See  Court  of  Chivalry;  Court  of  Earl 
Marshal. 

CONSTABLE  OF  SCOTLAND.  An  officer 
who  was  formerly  entitled  to  command  all 
the  king's  armies  In  the  absence  of  the  king, 

and  to  take  cognizance  of  all  crimes  commit- 
ted within  four  miles  of  the  king's  person  or 
of  parliament,  the  privy  council,  or  any  gen- 
eral convention  of  the  estates  of  the  king- 
dom. The  office  was  hereditary  in  the  fami- 
ly of  Errol.  and  was  abolished  by  the  20  Geo. 
III.  c.  43.    Bell,  Diet. ;  Erskine.  Inst.  1.  3.  37. 

CONSTABLE  OF  THE  EXCHEQUER.  An 
officer  spoken  of  in  the  51  Hen.  III.  stat.  5, 
cited  by  Cowell. 


CONSTABLEWICK 


626 


CONSTITUTIO 


CONSTABLEWICK.  The  territorial  ju- 
risdiction of  a  constable.    5  Nev.  &  M.  261. 

CONSTABULARIUS  (Lat).  An  officer  of 
horse ;  an  officer  having  charge  of  foot  or 
horse ;  a  naval  commander ;  an  officer  having 
charge  of  military  affairs  generally.  Spel- 
man,  Gloss. 

The  titles  were  very  numerous,  all  derived,  how- 
ever, from  come s- stab uli,  and  the  duties  were  quite 
similar  in  all  the  countries  where  the  civil  law  pre- 
vailed. His  powers  were  second  only  to  those  of 
the  king  in  all  matters  relating  to  the  armies  of  the 
kingdom. 

In  England  his  power  was  early  diminished  and 
restricted  to  those  duties  which  related  to  the  pres- 
ervation of  the  king's  peace.  The  office  is  now 
abolished  in  England,  except  as  a  matter  of  cere- 
mony, and  in  France.    Guyot,  Rep.  Univ.;    Cowell. 

CONSTAT  (Lat.  it  appears).  A  certificate 
by  an  officer  that  certain  matters  therein 
stated  appear  of  record.  See  Wilcox  v.  Ray, 
2  N.  C.  410. 

An  exemplification  under  the  great  seal 
of  the  enrolment  of  letters  patent.  Co.  Litt. 
225. 

A  certificate  which  the  clerk  of  the  pipe 
and  auditors  of  the  exchequer  make  at  the 
request  of  any  person  who  intends  to  plead 
or  move  in  the  court  for  the  discharge  of 
anything ;  and  the  effect  of  it  is,  the  certify- 
ing what  constat  (appears)  upon  record 
touching  the  matter  in  question. 

CONSTAT   D'HUISSIER.     In    French   Law. 

An  affidavit  made  by  a  huissier  setting  forth 
the  appearance,  form,  quality,  color,  etc.,  of 
any  article  upon  which  a  suit  depends.  Arg. 
Fr.  Merc.  L.  554;   Black,  L.  Diet. 

CONSTATING  INSTRUMENTS.  The  term 
is  used  to  signify  the  documents  or  collec- 
tion of  documents  which  fix  the  constitution 
or  charter  of  a  corporation.  Brice,  Ultra 
Vires  34;  Ackerman  v.  Halsey,  37  N.  J.  Eq. 
363. 

CONSTITUENT.  He  who  gives  authority 
to  another  to  act  for  him.  The  constituent 
is  bound  by  the  acts  of  his  attorney,  and 
the  attorney  is  responsible  to  his  constituent. 

CONSTITUERE.     In  Old  English  Law.    To 

establish;  to  appoint;  to  ordain. 

Used  in  letters  of  attorney,  and  translated 
by  constitute.  Applied  generally,  also,  to  de- 
note appointment.     Reg.  Orig.  172  ;  Du  Cange. 

CONSTITUTED  AUTHORITIES.  The  of- 
ficers properly  appointed  under  the  constitu- 
tion for  the  government  of  the  people.  Those 
powers  which  the  constitution  of  each  people 
has  established  to  govern  them,  to  cause 
their  rights  to  be  respected,  and  to  main- 
tain those  of  each  of  its  members. 

They  are  called  constituted,  to  distinguish 
them  from  the  constituting  authority  which 
has  created  or  organized  them,  or  has  dele- 
gated to  an  authority,  which  it  has  itself 
created,  the  right  of  establishing  or  regulat- 
ing their  movements. 

CONSTITUTIO.     In   Civil  Law.    An  estab- 


lishment or  settlement  Used  of  controver- 
sies settled  by  the  parties  without  a  trial. 
Calvinus,  Lex. 

A  sum  paid  according  to  agreement  Du 
Cange. 

An  ordinance  or  decree  having  its  force 
from  the  will  of  the  emperor.  Dig.  1.  4.  1, 
Cooper's  notes. 

In  Old  English  Law.  An  ordinance  or  stat- 
ute.   A  provision  of  a  statute. 

CONSTITUTION.  The  fundamental  law 
of  a  state,  directing  the  principles  upon 
which  the  government  is  founded,  and  regu- 
lating the  exercise  of  the  sovereign  powers, 
directing  to  what  bodies  or  persons  those 
powers  shall  be  confided  and  the  manner  of 
their  exercise. 

An  established  form  of  government;  a 
system  of  laws  and  customs. 

Constitution,  in  the  former  law  of  the  European 
continent,  signified  as  much  as  decree, — a  decree  of 
importance,  especially  ecclesiastical  decrees.  The 
decrees  of  the  Roman  emperors  referring  to  the 
jus  circa  sacra,  contained  in  the  code  of  Justinian, 
have  been  repeatedly  collected  and  called  the  Con- 
stitutions. The  famous  bull  Unigenitus  was  usually 
called  in  France  the  Constitution.  Comprehensive 
laws  or  decrees  have  been  called  constitutions ; 
thus  the  Constitutio  Criminalis  Carolina,  which  is 
the  penal  code  decreed  by  Charles  V.  for  Germany, 
the  Constitutions  of  Clarendon  (q.  v.).  In  political 
law  the  word  constitution  came  to  be  used  more  and 
more  for  the  fundamentals  of  a  government, — the 
laws  and  usages  which  give  it  its  characteristic  fea- 
ture. We  find,  thus,  former  English  writers  speak 
of  the  constitution  of  the  Turkish  empire.  These 
fundamental  laws  and  customs  appeared  to  our 
race  especially  important  where  they  limited  the 
power  and  action  of  the  different  branches  of  gov- 
ernment ;  and  it  came  thus  to  pass  that  by  consti- 
tution was  meant  especially  the  fundamental  law  of 
a  state  in  which  the  citizen  enjoys  a  high  degree  of 
civil  liberty ;  and,  as  it  is  equally  necessary  to 
guard  against  the  power  of  the  executive  in  mon- 
archies, a  period  arrived — namely,  the  first  half  of 
the  present  century— when  in  Europe,  and  especially 
on  the  continent,  the  term  constitutional  government 
came  to  be  used  in  contradistinction  to  absolutism. 

We  now  mean  by  the  term  constitution,  in  com- 
mon parlance,  the  fundamental  law  of  a  free  coun- 
try, which  characterizes  the  organism  of  the  coun- 
try and  secures  the  rights  of  the  citizen  and  deter- 
mines his  main  duties  as  a  freeman.  Sometimes, 
indeed,  the  word  constitution  has  been  used  in 
recent  times  for  what  otherwise  is  generally  called 
an  organic  law.  Napoleon  I.  styled  himself  Emperor 
of  the  French  by  the  Grace  of  God  and  the  Consti- 
tutions of  the  Empire. 

Constitutions  were  generally  divided  into  written 
and  non-written  constitutions,  analogous  to  leges 
scriptas  and  non  scriptce.  These  terms  do  not  in- 
dicate the  distinguishing  principle ;  Lleber,  there- 
fore, divides  political  constitutions  into  accumulated 
or  cumulative  constitutions  and  enacted  constitu- 
tions. The  constitution  of  ancient  Rome  and  that 
of  England  belong  to  the  first  class.  The  latter 
consists  of  the  customs,  statutes,  common  laws, 
and  decisions  of  fundamental  importance.  The  Re- 
form act  is  considered  by  the  English  a  portion  of 
the  constitution  as  much  as  the  trial  by  jury  or 
the  representative  system,  which  have  never  been 
enacted,  but  correspond  to  what  Cicero  calls  leges 
natce. 

Constitutional  law  in  England  appears  to 
include  all  rules  which  directly  or  indirectly 
affect  the  distribution  or  the  exercise  of  the 
sovereign  power  in  the  state ;  all  rules  which 
define  the  members  of  the  sovereign  power 


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627 


CONSTITUTION 


and  their  relation  to  each  other  and  the 
mode  in  which  it,  or  the  members  thereof, 
exercise  their  authority,  the  order  of  succes- 
sion to  the  throne,  the  prerogations  of  the 
chief  magistrate  and  the  form  of  the  legis- 
lature and  its  mode  of  election,  ministers 
with  their  responsibilities  and  sphere  of  ac- 
tion, the  territory  over  which  the  sovereign- 
ty of  the  state  extends,  and  who  are  to  be 
deemed  citizens  and  subjects.  Dicey,  Const. 
22. 

Our  constitutions  are  enacted ;  that  Is  to  say, 
they  were,  on  a  certain  day  and  by  a  certain  au- 
thority, enacted  as  a  fundamental  law  of  the  body 
politic.  In  many  cases  enacted  constitutions  can- 
not be  dispensed  with,  and  they  have  certain  ad- 
vantages which  cumulative  constitutions  must  fore- 
go ;  while  the  latter  have  some  advantages  which 
the  former  cannot  obtain.  It  has  been  thought,  in 
many  periods,  by  modern  nations,  that  enacted  con- 
stitutions and  statutory  law  alone  are  firm  guar- 
antees of  rights  and  liberties.  This  error  has  been 
exposed  in  Lieber's  Civil  Liberty.  Nor  can  enacted 
constitutions  dispense  with  the  "grown  law"  (lex 
nata).  For  the  meaning  of  much  that  an  enacted 
constitution  establishes  can  only  be  found  by  the 
grown  law  on  which  it  is  founded,  just  as  the  Brit- 
ish Bill  of  Rights  (an  enacted  portion  of  the  Eng- 
lish constitution)   rests  on  the  common  law. 

Enacted  constitutions  may  be  either  octroyed, 
that  is,  granted  by  the  presumed  full  authority  of 
the  grantor,  the  monarch  ;  or  they  may  be  enacted 
by  a  sovereign  people  prescribing  high  rules  of  ac- 
tion and  fundamental  laws  for  its  political  society, 
such  as  ours  is ;  or  they  may  rest  on  contracts  be- 
tween contracting  parties, — for  Instance,  between 
the  people  and  a  dynasty,  or  between  several  states. 
We  cannot  enter  here  into  the  interesting  Inquiry 
concerning  the  points  on  which  all  modern  constitu- 
tions agree,  and  regarding  which  they  differ, — one 
of  the  most  instructive  inquiries  for  the  publicist 
and  jurist.  See  Hallam's  Constitutional  History  of 
England;  Hare;  Miller;  Rawle;  Story;  Tur-ker ; 
Watson;  Willoughby ;  Stimson;  Sutherland;  Flan- 
ders; Guthrie;  Foster;  Boutwell  ;  Ti^deman  (the 
Unwritten  Constitution)  ;  Taylor ;  Thayer,  on  the 
Constitution;  Farrand,  Records  of  the  Federal  Con- 
vention: Sheppard's  Constitutional  Text-Book;  El- 
liot's Debates  on  the  Constitution,  etc. ;  Lieber's  ar- 
ticle (Constitution),  In  the  Encyclopaedia  Americana; 
Cooley,  Const.  Llm. ;  Bryce,  Am.  Com.;  Von  Hoist, 
Hist.  U.  S. 

For  the  constitutions  of  the  several  states, 
including  those  in  force  and  the  previous 
ones,  see  Charters  and  Constitutions,  pub- 
lished under  authority  of  Congress  in  1S78. 

Thorpe's  American  Charters.  Constitutions, 
etc.,  gives  the  constitutions  down  to  1908  in- 
clusive. 

Constitution,  Self-Executing  Provisions.  A 
constitutional  provision  may  be  said  to  be 
self-executing  if  it  supplies  a  sufheieut  rule 
by  means  of  which  the  right  given  may  be 
enjoyed  and  protected,  or  the  duty  imposed 
may  be  enforced,  and  it  is  not  self-executing 
when  it  merely  indicates  principles,  without 
laying  down  rules  by  means  of  which  those 
principles  may  be  given  the  force  of  law. 
Cooley,  Const.  Lim.  99  [84],  -1th  ed.   101. 

"The  question  in  every  case  is  whether  the 
language  of  a  constitutional  provision  is  ad- 
dressed to  the  courts  or  the  legislature. 
.  .  .  If  the  nature  and  extent  of  the  right 
conferred  and  of  the  liability  Imposed  is 
fixed  by  the  provision  Itself,  so  that  they  can 


be  determined  by  the  examination  and  con- 
struction of  its  own  terms,  and  there 
is  no  language  used  indicating  that  the  sub- 
ject is  referred  to  the  legislature  for  action, 
then  the  provision  should  be  construed  as 
self-executing,  and  its  language  as  add 
to  the  courts."  "Willis  v.  Mabon,  -lv  Minn. 
160,  50  X.  W.  1110,  16  L.  B.  A.  281,  31  Am. 
St.  Rep.  82ft 

"But  it  must  remain  entirely  clear  that 
where  a  state  constitution  declares  In 
language  that  the  members  of  corporations 
Shall  he  individually  liable  for  their  debts  to 
a  defined  extent,  it  cannot  be  held  that  sup- 
plementary legislation  is  required  to  execute 
this  provision,  and  hence  that  the  li 
ture  may  leave  it  forever  dormant  and  in- 
operative merely  because  the  trainers  of  the 
constitution  did  not  go  on  and  prescribe  the 
remedy  which  should  be  pursued  for  enforc- 
ing it."     Thomp.  Corp.  §  3004. 

See  Morley  v.  Thayer,  3  Fed.  739;  Barnes 
v.  Wheaton,  80  Hun  14,  29  N.  Y.  Supp.  830; 
May  v.  Black,  77  Wis.  104,  45  N.  W.  949; 
Groves  v.  Slaughter,  15  ret.  (U.  8.)  449,  10 
L.  Ed.  800;  Pierce  v.  Com.,  104  Pa.  150; 
Fredericks  v.  Canal  Co.,  148  Pa.  317,  23  At  I. 
1087. 

But  it  has  been  held  that  a  constitutional 
provision  that  "dues  from  corporations  shall 
be  secured  by  individual  liability  of  the 
stockholders  to  an  additional  amount  equal 
to  the  stock  owned  by  such  stockholder,  and 
such  other  means  as  shall  be  provided  by 
law,"  is  not  self-executing  and  is  inoperative 
until  supplemented  by  statute;  Marshall  v. 
Sherman,  148  N.  Y.  9.  42  N.  E.  419,  34  L.  K. 
A.  757,  51  Am.  St.  Rep.  G54. 

A  provision  of  a  state  constitution  impos- 
ing upon  stockholders  personal  liability,  to 
an  additional  amount  equal  to  their  stock, 
for  "dues  from  corporations,"  is  self-execut- 
ing;  Whitman  v.  Bank.  170  U.  S.  559,  20 
Sup.  Ct.  477,  44  L.  Ed.  5S7. 

CONSTITUTION  OF  THE  UNITED 
STATES  OF  AMERICA.  The  supreme  law 
of  the  United  States. 

It  was  framed  by  a  convention  of  delegates 
from  all  of  the  original  thirteen  states  (ex- 
cept Rhode  Island),  which  assembled  at  Phil- 
adelphia on  the  14th  of  May.  1787.  On  Sep- 
tember 17,  1787,  by  the  unanimous  consent 
of  the  states  present,  a  form  of  constitution 
was  agreed  upon,  and  on  September  28th 
was  submitted  to  the  congress  of  the  confed- 
eration, with  recommendations  as  to  the 
method  of  its  adoption  by  the  states.  In  ac- 
cordance with  these  recommendations,  it  was 
transmitted  by  the  congress  to  the  several 
state  legislatures,  in  order  to  be  submitted  to 
conventions  of  delegates  chosen  in  each  state 
by  the  people  thereof.  The  several  states 
accordingly  called  conventions,  which  ratified 
the  constitution  upon  the  following  date-:  Del- 
aware, December  7,  1787;  Pennsylvania,  De- 
cember 12,  17^7;  New  Jersey,  December  IS, 


CONSTITUTION 


628 


CONSTITUTION 


1787;  Georgia,  January  2,  1788;  Connecticut, 
January  9,  1788 ;  Massachusetts,  February  6, 
1788 ;  Maryland,  April  28,  1788 ;  South  Caro- 
lina, May  23,  1788 ;  New  Hampshire,  June  21, 
1788;  Virginia,  June  26,  1788;  New  York, 
July  26,  1788 ;  North  Carolina,  November  21, 
1789;    Rhode  Island,  May  29,  1790. 

It  was  said  by  Mr.  Gladstone,  who  may  be 
considered  an  impartial  critic,  that  "as  the 
British  constitution  is  the  most  subtle  or- 
ganism which  has  proceeded  from  progressive 
history,  so  the  American  constitution  is  the 
most  wonderful  work  ever  struck  off  at  a 
given  time  by  the  brain  and  purpose  of  man." 
Fisher,  Evolution  of  the  Constitution,  11. 
In  connection  with  this  comment  of  the 
great  English  statesman,  it  is  interesting  to 
quote  from  an  address  before  the  American 
Bar  Association  in  1912  by  George  Suther- 
land, Senator  from  Utah  (Rep.  p.  371), 
which  probably  expresses  the  view  of  a  ma- 
jority of  the  thoughtful  lawyers  and  states- 
men of  all  parties.  Alluding  to  "a  growing 
sentiment  that  the  constitution  has  become 
obsolete  and  that  its  provisions  stand  in  the 
way  of  reforms  which  are  demanded  by  the 
people,"  he  continues :  "Many  of  us  do  not 
believe  that  the  constitution  has  been  out- 
worn, or  that  it  has  become  a  dead  wall  in 
the  path  of  progress,  to  be  assaulted  and 
overthrown  before  we  can  move  on.  Its 
principles  are  living  forces,  as  vital  now  as 
when  they  were  adopted.  It  is  not  and  nev- 
er has  been  a  wall,  but  a  wide,  free  flowing 
stream  within  whose  ample  banks  every 
needed  and  wholesome  reform  may  be  launch- 
ed and  carried."  And  the  address  concludes : 
"To  the  thoughtful  student  of  law  and  gov- 
ernment the  great  principles  of  the  constitu- 
tion, as  old  as  the  struggle  for  human  liber- 
ty, are  as  nearly  eternal  as  anything  in  this 
mutable  world  can  be.  We  do  not  outgrow 
them  any  more  than  we  outgrow  the  Ten 
Commandments  or  the  enduring  morality  of 
the  Sermon  on  the  Mount.  .  .  .  The  con- 
stitution did  not  create  the  Union,  but,  by 
making  it  'more  perfect,'  preserved  it  from 
destruction.  If  the  present  day  teachers  of 
vague  and  visionary  reform  would  know  the 
fate  which  will  overtake  the  republic  if  the 
constitution,  through  the  shattered  faith  of 
the  people,  shall  lose  its  binding  force,  they 
have  but  to  read  the  history  of  our  country 
under  the  Articles  of  Confederation.  If  by 
some  unhappy  turn  of  fortune  the  constitu- 
tion should  be  wrecked,  those  conditions  will 
be  repeated,  but  intensified  in  the  proportion 
that  our  population  has  increased,  our  terri- 
tory extended,  and  our  problems  have  be- 
come more  numerous  and  intricate.  The 
forty-eight  states  into  which  our  imperial 
domain  has  finally  been  rounded,  filled  with 
patriotic,  intelligent,  justice-loving  people, 
after  all  constitute  but  the  body  of  the  Un- 
ion.   Its  soul  is  the  constitution." 

Under  the  terms  of  the  constitution  (art. 
vii.),  its  ratification  by  nine  states  was  suffi- 


cient to  establish  it  between  the  states  so 
ratifying  it.  Accordingly,  when,  on  July  2, 
1788,  the  ratification  by  the  ninth  state  was 
read  to  congress,  a  committee  was  appointed 
to  prepare  an  act  for  putting  the  constitu- 
tion into  effect ;  and  on  September  13,  1788 — 
in  accordance  with  the  recommendations 
made  by  the  convention  in  reporting  the  con- 
stitution— congress  appointed  days  for  choos- 
ing electors,  etc.,  and  resolved  that  the  first 
Wednesday  in  March  then  next  (March  4, 
1789)  should  be  the  time,  and  the  then  seat 
of  congress  (New  York)  the  place,  for  com- 
mencing government  under  the  new  consti- 
tution. Proceedings  were  had  in  accordance 
with  these  directions,  and  on  March  4,  17S9, 
congress  met,  but,  owing  to  the  want  of  a 
quorum,  the  house  did  not  organize  until 
April  1st,  nor  the  senate  until  April  6th. 
Washington  took  the  oath  of  office  on  April 
30th.  The  constitution  became  the  law  of 
the  land  on  March  4,  1789.  Owings  v.  Speed, 
5  Wheat.  (U.  S.)  420,  5  L.  Ed.  124- 

Its  adoption  abrogated  the  ordinance  of 
1787,  except  as  continued  in  force  by  con- 
gress ;  Pollard  v.  Hagan,  3  How.  (U.  S.)  212, 
11  L.  Ed.  565 ;  Permoli  v.  Municipality  No.  1 
of  New  Orleans,  3  How.  (U.  S.)  5S9,  11  L.  Ed. 
739 ;  Strader  v.  Graham,  10  How.  (U.  S.)  82, 
13  L.  Ed.  337 ;  South  Carolina  v.  Georgia,  93 
U.  S.  4,  23  L.  Ed.  782 ;  Wharton  v.  Wise,  153 
U.  S.  155,  14  Sup.  Ct.  783,  38  L.  Ed.  669.  The 
constitution  is  to  be  construed  with  respect 
to  the  law  existing  at  the  time  of  its  adop- 
tion and  as  securing  to  the  individual  citi- 
zen the  rights  inherited  by  him  under  Eng- 
lish law,  and  not  with  reference  to  new  guar- 
antees ;  Mattox  v.  U.  S.,  156  U.  S.  237,  15 
Sup.  Ct.  337,  39  L.  Ed.  409 ;  it  is  to  be  inter- 
preted according  to  common  law  rules; 
Schick  v.  U.  S.,  195  U.  S.  65,  24  Sup.  Ct.  826, 
49  L.  Ed.  99 ;  Kepner  v.  U.  S.,  195  U.  S.  100, 
24  Sup.  Ct.  797,  49  L.  Ed.  114 ;  Thompson  v. 
Utah,  170  U.  S.  343,  18  Sup.  Ct.  620,  42  L.  Ed. 
1061;  U.  S.  v.  Wong  Kim  Ark,  169  U.  S.  649, 
18  Sup.  Ct.  456,  42  L.  Ed.  890 ;  Callan  v.  Wil- 
son, 127  U.  S.  540,  8  Sup.  Ct.  1301,  32  L.  Ed. 
223 ;  Smith  v.  Alabama,  124  U.  S.  465,  8  Sup. 
Ct.  564,  31  L.  Ed.  508 ;  Boyd  v.  XT.  S.,  116  U. 
S.  616,  6  Sup.  Ct.  524,  29  L.  Ed.  746;  In  re 
Wilson,  114  U.  S.  417,  5  Sup.  Ct.  935,  29  L. 
Ed.  89;  Minor  v.  Happersett,  21  Wall.  (U. 
S.)  162,  22  L.  Ed.  627.  Under  it  are  derived 
all  powers  exercised  by  the  various  depart- 
ments of  the  federal  government;  Dorr  v. 
U.  S.,  195  U.  S.  138,  24  Sup.  Ct.  808,  49  L. 
Ed.  128,  1  Ann.  Cas.  697 ;  Downes  v.  Bidwell, 
182  U.  S.  244,  21  Sup.  Ct.  770,  45  L.  Ed.  1088 ; 
and  the  courts  were  thereafter  bound  to  take 
notice  of  it ;  Marbury  v.  Madison,  1  Cra.  (U. 
S.)  178,  2  L.  Ed.  60;  and  in  construing  it, 
they  gave  special  weight  to  the  contempo- 
raneous construction  of  it,  acquiesced  in ; 
Stuart  v.  Laird,  1  Cra.  (U.  S.)  299,  2  L.  Ed. 
115.  The  "United  States  of  America"  was 
thereby  constituted  a  government  with  ful) 


CONSTITUTION 


629 


CONSTITUTION 


powers  necessary  for  accomplishing  the  ob- 
jects of  its  creation;  Respublica  v.  Sweers,  1 
Dull.  (U.  S.)  44,  1  L.  Ed.  29;  U.  S.  v.  Mau- 
rice, 2  Brock.  109,  Fed.  Cas.  No.  15,747 ;  U.  S. 
v.  Bradley,  10  Pet.  (U.  S.)  3G3,  9  L.  Ed.  448 ; 
U.  S.  v.  Linn,  15  Pet.  (U.  S.)  290,  10  L.  Ed. 
742;  U.  S.  v.  Tingey,  5  Pet.  (U.  S.)  115,  8 
L.  Ed.  66.  The  government  created  was  one 
of  delegated  powers  only  ;  Martin  v.  Hunter, 
1  Wheat.  (U.  S.)  304,  4  L.  Ed.  97;  McCulloch 
v.  Maryland,  4  Wheat  (U.  S.)  316,  4  L.  Ed. 
579;  Gibbons  v.  Ogden,  'J  Wheat.  (U.  S.)  1, 
6  L.  Ed.  23;  Briscoe  v.  Bank,  11  Pet.  (U.  S.) 
257,  9  L.  Ed.  70!);  Gilman  v.  Philadelphia,  3 
Wall.  (U.  S.)  713,  18  L.  Ed.  90;  U.  S.  v.  Cruik- 
shank,  92  U.  S.  542.  L'::  L.  Ed.  588;  U.  S.  v. 
Harris.  IOC  V.  S.  629,  1  Sup.  Ct.  601,  27  L. 
Ed.  290;  and  though  a  government  of  limited 
powers,  it  possesses,  to  every  extent,  the 
sovereignty  required  for  the  exercise  of  those 
powers  which  do  not  require  to  be  put  in 
practice  by  legislative  action,  but  may  be 
exercised  at  dine  by  virtue  of  the  constitu- 
tion through  the  executive  departments;  In 
re  Debs,  15S  U.  S.  564,  15  Sup.  Ct  900,  39  L. 
Ed.  1092. 

The  constitution  creates  a  government  for 
the  United  States  of  America,  and  not  for 
countries  outside  of  their  limits,  and  it  can, 
therefore,  have  no  operation  in  another  coun- 
try ;  In  re  Ross,  140  U.  S.  453,  11  Sup.  Ct 
897,  35  L.  Ed.  581. 

The  preamble  of  the  constitution  declares 
that  the  people  of  the  United  States,  in  order 
to  form  a  more  perfect  union,  establish  jus- 
tice, insure  domestic  tranquility,  provide  for 
the  common  defence,  promote  the  general  wel- 
fare, and  secure  the  blessings  of  liberty  to 
themselves  and  their  posterity,  do  ordain  and 
establish  this  constitution  for  the  United 
States  of  America. 

The  "people  of  the  United  States"  who  are 
declared  to  have  ordained  and  established 
the  constitution  "were  the  people  of  the  sev- 
eral states  that  had  before  dissolved  the  po- 
litical hands  which  connected  them  with 
Great  Britain,  and  assumed  a  separate  and 
equal  station  among  the  powers  of  the  earth 
(Declaration  of  Independence)  and  had  by 
Articles  of  Confederation  and  Perpetual  Un- 
ion, in  which  they  took  the  name  of  'The 
United  States  of  America,'  entered  into  a 
firm  league  of  friendship  with  each  other 
for  their  common  defence,  the  security  of 
their  liberties  and  their  mutual  and  general 
welfare,  binding  themselves  to  assist  each 
other  against  all  force  offered  to  or  attack 
made  upon  them,  or  any  of  them,  on  account 
of  religion,  sovereignty,  trade  or  any  pretense 
whatever"  (Articles  of  Confederation,  q.  v.) ; 
Minor  v.  Happersett,  21  Wall.  (U.  S.)  162,  105, 
22  P.  Ed.  627. 

The  "perfect  union"  contemplated  by  the 
constitution  was  said  by  the  Supreme  Court 
to  be  "an  indestructible  union  composed  of 
indestructible  states";  Texas  v.  White,  7 
Wall.  (U.  S.)  700,  19  L.  Ed.  227,  where  it  was 


also  said  that  the  union  is  indissoluble  by 
the  act  of  any  one  or  more  of  them ;    U.  S. 
v.  Cathcart,  1  Bond    556,   Fed  <'as.   No.  14, 
756.     The  ordinances  of  secession   were   de- 
clared   to    be    absolute    nullities ;     White    v. 
Cannon,  6  Wall.  (U.  S.)  443,   L8   L.  Ed.  '.•-.:: 
but  the  effort  to   separate   from   the   Union 
will  not  destroy  the  identity  of  a   st.r 
discharge  it  from  its  obligations  under  the 
constitution;    Keith  v.  Clark,  '.'7  U.  S.   ; 
L.   Ed.  1071;    nor  does  a  condition  of  civil 
war    take   away   from   congress    any    of   the 
powers  necessary  to  the  maintenance  of  the 
Union;  Tyler  v.  Defrees,  11  Wall.  (U.  S.)  331, 
20  L.  Ed.  161.    The  federal  and  state  govern- 
ments are  distinct  and  independent  <>l 
other,  and  while  they  exercise  their   p 
within    the    same    territorial    limits,    neither 
can  intrude   upon   the  sphere  of  the  o 
but  in  case  of  conflict  between  the  authori- 
ties of  the   two    governments,    those   of   the 
federal    government    will    control    until    the 
questions   between   them   are   determined    by 
the  federal  tribunals;    Ableman  v.  Booth,  21 
How.   (U.   S.)  500,  16  L.  Ed.  169;    Tarble'e 
Case,  13  Wall.  (U.  S.)  397,  20  L.  Ed.  597. 

In  addition  to  the  powers  conferred  upon 
the  federal  government,  the  power  to  pro- 
vide for  the  common  defence  authorizes  the 
condemnation  by  a  state  of  laud  for  the  pur- 
pose of  ceding  it  to  the  United  States  for 
forts  and  navy-yards;  In  re  League  Island. 
1  Brewst.  (Pa.)  524. 

The  first  article  is  divided  Into  ten  sect  inns. 
By  the  first  the  legislative  power  is  vested  in 
congress.  The  second  regulates  the  formation 
of  the  house  of  representatives,  and  declares 
who  shall  be  electors.  The  third  provides 
for  the  organization  of  the  senate,  and  be- 
stows on  it  the  power  to  try  impeachments. 
The  fourth  directs  the  time  of  meeting  of 
congress,  and  who  may  regulate  the  times, 
places,  and  manner  of  holding  elections  for 
senators  and  representatives.  The  fifth  de- 
termines the  power  of  the  respective  houses. 
The  sixth  provides  for  a  compensation  to 
members  of  congress,  and  for  their  safety 
from  arrests,  and  disqualifies  them  from 
holding  certain  offices.  The  s<  venth  directs 
the  manner  of  passing  bills.  The  eighth  de- 
fines the  powers  vested  in  congress.  The 
ninth  contains  the  following  provisions:  1st: 
That  the  migration  or  Importation  of  certain 
classes  of  persons  shall  not  be  prohibited  pri- 
or to  the  year  1808.  2d.  That  the  writ  of 
habeas  corpus  shall  not  be  suspended,  except 
in  particular  cases.  3d.  That  no  bill  of  at- 
tainder or  cr  port  facto  law  shall  be  passed. 
4th.  The  manner  of  levying  taxes.  5th.  The 
manner  of  drawing  money  oul  of  the  treasury, 
8th.  That  no  title  of  nobility  shall  he  grant- 
ed. 7th.  That  no  officer  shall  receive  a  pres- 
ent from  a  foreign  government  The  tenth 
forbids  the  respective  states  to  exercise  cer- 
tain powers  there  enumerated. 

Sec.  1.  The  power  vested  in  Congress  un- 
der the  constitution  comprised  all  that  por- 


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630 


CONSTITUTION 


tion  of  governmental  power  and  sovereignty 
which  was,  at  the  time  of  the  adoption  of 
the  constitution,  known  and  recognized  as 
the  "legislative  power."  As  to  what  this  in- 
cludes and  what  it  excludes,  see  Legisla- 
tive Power. 

Sec.  2.  The  right  to  vote  for  members  of 
congress  is  derived  from  the  constitution, 
and  this  is  equally  true  even  if  the  qualifica- 
tions for  electors  of  state  officers  have  been 
adopted  by  the  federal  law  as  those  to  be 
required  of  electors  for  members  of  con- 
gress. Wiley  v.  Sinkler,  179  U.  S.  58,  21  Sup. 
Ct.  17,  45  L.  Ed.  84 ;  and  a  denial  to  vote 
at  an  election  of  members  of  congress  in- 
volves a  federal  question ;  Swafford  v.  Tem- 
pleton,  185  U.  S.  4S7,  22  Sup.  Ct.  783,  46  L. 
Ed.  1005. 

While  congress  has  no  power  to  establish 
qualifications  for  voters  in  state  elections,  it 
may  impose  a  deprivation  of  citizenship  as 
a  penalty,  and  if  the  state  constitution  pre- 
scribes citizenship  of  the  United  States  as 
one  of  the  qualifications  for  voting,  the  voter, 
upon  conviction,  might  thus  be  deprived  of 
his  right.     Huber  v.  Reily,  53  Pa.  112. 

The  word  "state,"  in  this  section,  is  used 
in  the  geographical  or  territorial  sense.  Tex- 
as v.  White,  7  Wall.  (U.  S.)  700,  19  L-.  Ed.  227. 
The  qualifications  of  members  of  congress 
being  fixed  by  par.  4,  the  state  cannot  enlarge 
or  vary  them ;  Barney  v.  McCreery,  1  Cont. 
Elect.  Cas.  167. 

As  to  what  are  direct  taxes  within  the 
meaning  of  the  constitution,  see  Taxation. 
The  requirement  that  congress  shall  ap- 
portion direct  taxes  according  to  population 
does  not  apply  to  the  District  of  Columbia  or 
the  territories,  and  a  direct  tax  may  be  im- 
posed in  the  direct  district  in  proportion  to 
the  census ;  Loughborough  v.  Blake,  5  Wheat. 
(U.  S.)  317,  5  L.  Ed.  98. 

Sec.  3.  Under  the  17th  amendment,  adopt- 
ed in  1913,  the  method  of  choosing  senators 
is  changed  from  an  election  by  the  legisla- 
ture to  an  election  by  the  people  of  each 
state  voting  at  large. 

The  senate  is  a  permanent  body.  Cush.  L. 
&  Pr.  of  Legisl.  Ass.  272.  The  seat  of  a  sen- 
ator is  vacated  by  his  addressing  a  resigna- 
tion to  the  governor  of  the  state  without  no- 
tice of  its  acceptance ;  1  Cont.  Elect.  Cas. 
869.  A  vacancy  in  the  senate,  which  has  oc- 
curred before  a  meeting  of  the  Legislature 
which  adjourns  without  filling  the  vacancy, 
cannot  be  filled  by  the  governor ;  1  Cont. 
Elect.  Cas.  874;  nor  is  it  competent  for  the 
governor  to  make  a  recess  appointment  to 
fill  a  vacancy  which  shall  happen  but  has 
not  happened ;    1  Cont.  Elect.  Cas.  871. 

Where  a  state  constitution  directed  the 
governor  to  call  a  special  session  of  the  leg- 
islature upon  the  happening  of  a  vacancy  in 
the  senate,  and  he  was  required  by  the  fed- 
eral constitution  to  make  a  temporary  ap- 
pointment, he  considered  that  the  two  were 
in  conflict  and  he  exercised  his   discretion 


to  disregard  the  positive  mandate  of  the 
state  constitution  and  appoint  a  senator  to 
fill  the  vacancy.  Knox's  Case,  29  Pa.  Co.  Ct 
471  (opinion  of  Governor  (formerly  Judge) 
Pennypacker). 

In  the  trials  of  impeachment  in  which  the* 
Chief  Justice  presides,  he  is  a  member  of 
the  court  with  a  right  to  vote.  1  Trial  of 
Pres.  Johnson  185;  Utica  Bank  v.  Wagar,  8 
Cow.  (N.  Y.)  398;  Rights  of  Lieutenant-Gov- 
ernor, 2  Wend.   (N.  Y.)  213. 

Sec.  4.  When  the  legislature  has  failed  to 
"prescribe  the  times,  places  and  manner"  of 
holding  an  election  under  this  section,  the 
governor  may  issue  a  writ  of  election,  al- 
lowing a  reasonable  time  for  notice.  1  Cont. 
Elect.  Cas.  335.  Congress  may  control  the 
election  of  senators  and  representatives  and 
change  any  existing  state  regulations;  In  re 
Siebold,  100  U.  S.  371,  25  L.  Ed.  717;  In 
re  Clarke,  100  U.  S.  399,  25  L.  Ed.  715 ;  and 
it  may  pass  such  laws  as  are  required  to 
secure  the  free  exercise  of  a  right  of  suf- 
frage and  punish  illegal  interference  with  it ; 
In  re  Coy,  127  U.  S.  731,  8  Sup.  Ct.  1263,  32 
L.  Ed.  274;  it  may  also  punish  violation  of 
duty  by  election  officers;  U.  S.  v.  Gale,  109 
U.  S.  65,  3  Sup.  Ct.  1,  27  L.  Ed.  857 ;  it  may 
authorize  the  appointment  of  supervisors  and 
deputy  marshals ;  In  re  Siebold,  100  U.  S. 
371,  399,  25  L.  Ed.  717;  and  generally  may 
regulate  the  return  and  counting  of  the  vote ; 
In  re  Coy,  127  U.  S.  731,  8  Sup.  Ct.  1263, 
32  L.  Ed.  274. 

Sec.  5.  The  returns  from  the  state  au- 
thorities are  only  prima  facie  evidence  of 
election  and  are  not  conclusive  upon  either 
house  of  congress;  Spaulding  v.  Mead,  1 
Cont.  Elect.  Cas.  157;  Reed  v.  Cosden,  1 
Cont.  Elect.  Cas.  353;  and  a  failure  of  the 
state  executive  to  grant  a  certificate  of  elec- 
tion does  not  affect  the  right  of  one  who  is 
elected  a  member  of  congress ;  id.  95. 

A  majority  of  the  house  is  a  quorum  and 
a  majority  of  the  quorum  is. sufficient  to  pass 
a  bill ;  U.  S.  v.  Ballin,  144  U.  S.  1,  12  Sup.  Ct. 
507,  36  L.  Ed.  321 ;  and  the  house  may  deter- 
mine any  means,  not  in  violation  of  the  con- 
stitutional restraints  or  fundamental  rights, 
for  ascertaining  the  presence  of  a  quorum,  as 
by  rule  authorizing  the  counting  of  members 
who  do  not  vote  sufficient  to  make  a  quo- 
rum; U.  S.  v.  Ballin,  144  U.  S.  1,  12  Sup.  Ct 
507,  36  L.  Ed.  321. 

Each  of  the  two  houses  possesses  an  in- 
herent power  to  punish  for  contempt ;  Ander- 
son v.  Dunn,  6  Wheat.  (U.  S.)  204,  5  L.  Ed. 
242;  the  power  cannot  be  delegated,  though 
a  law  providing  for  the  indictment  of  a  con- 
tumacious witness  is  valid ;  In  re  Chapman, 
166  U.  S.  661,  17  Sup.  Ct.  677,  41  L.  Ed.  1154. 
The  power  to  punish  for  contempt  requires 
that  the  matter  in  question  shall  be  strictly 
within  the  jurisdiction  of  the  body;  Kil- 
bourne  v.  Thompson,  103  U.  S.  168,  26  L.  Ed. 
377,  which  overrules  Anderson  v.  Dunn,  6 
Wheat  (U.  S.)  204,  5  L.  Ed.  242,  on  the  point 


CONSTITUTION 


631 


CONSTITUTION 


that  the  warrant  of  the  speaker  for  the  com- 
mitment of  the  witness  is  not  conclusive  by 
way  of  justification  to  the  serjeant-at-arms 
In  an  action  fur  false  Imprisonment  The 
court  relied  upon  some  English  cases  as  au- 
thorities; 4  Moore  P.  C.  G3 ;  11  Moore  P.  C. 
347;    4  Moore  P.  C.  (N.  S.)  203. 

The  power  to  expel  a  member  has  been 
held  to  cover  an  offence  not  punishable  by 
statute  but  inconsistent  with  the  duty  of  a 
member.  Blount's  Case,  cited  1  Story,  Const. 
§  838;    Smith's  Case,  1  Hall,  L.  J.  459. 

The  constitutional  power  granted  to  each 
bouse  to  keep  a  journal  of  its  proceedings 
does  not  make  it  evidence  that  an  enrolled 
bill  has  passed  containing  a  section  not  ap- 
pearing in  the  enrolled  act  hied  in  the  Btate 
department;  Marshall  B'ield  &  Co.  v.  Clark, 
143  U.  S.  649,  12  Sup.  Ct.  403,  3G  L.  Ed.  294. 

Sec.  6.  The  privilege  from  arrest  extends 
to  all  indictable  offences;  1  Story,  Coust.  § 
865;  but  it  has  been  held  that  the  privilege 
from  arrest  of  a  member  of  the  legislature 
applies  only  to  civil  process  and  not  to  cases 
of  crime  or  misdemeanor.  Com.  v.  Keeper  of 
Jail,  4  W.  N.  C.  (Pa.)  540.  The  privilege  ex- 
tends to  the  service  of  civil  process  while  in 
attendance  on  their  public  duties ;  Geyer  v. 
Irwin,  4  Dall.  (U.  S.)  107,  1  L.  Ed.  762 ;  Nones 
v.  Edsall,  1  Wallace,  Jr.  191,  Fed.  Cas.  10,- 
290;  Respublica  v.  Duane,  4  Yeates  (Pa.) 
347 ;  and  the  privilege  extends  to  the  period 
of  going  or  returning  as  well  as  the  time  of 
attendance ;  Lewis  v.  Elmendorf,  2  Johns. 
Cas.  (N.  Y.)  222 ;  and  it  protects  a  member 
who  loses  his  seat  on  a  contest  until  his  re- 
turn home  in  the  -shortest  reasonable  time; 
Com.  v.  Crans,  2  Clark  (Pa.)  450. 

The  acceptance  of  a  federal  office  after 
election  to  congress  operates  as  a  forfeiture 
of  the  seat;  1  Cont.  Elect.  Cas.  122;  and 
this  includes  a  military  commission  in  a  vol- 
unteer regiment ;  2  Cont.  Elect.  Cas.  92 ; 
Hammond  v.  Herrick,  1  Cont.  Elect  Cas.  295 ; 
but  one  who  continued  to  execute  the  duties  of 
a  federal  office  after  election  to  congress  but 
before  taking  his  seat  is  not  disqualified ; 
Hammond  v.  Herrick,  1  Cont.  Elect  Cas.  287, 
314,  316. 

Sec.  7.  An  act  imposing  taxes  on  the  notes 
of  a  national  bank  is  not  a  revenue  bill  with- 
in this  section;  Twin  City  Nat.  Bank  v.  Ne- 
beker,  167  U.  S.  196,  17  Sup.  Ct.  766,  42  L. 
Ed.  134. 

A  bill  takes  effect  from  the  time  of  its 
approval,  and  the  doctrine  that  there  is  no 
fraction  of  a  day  dues  not  apply;  In  re  Rich- 
ardson, 2  Sto.  571,  Fed.  Cas.  No.  11,777;  Peo- 
ple v.  Clark,  1  Cal.  406;  contra,  In  re  Wel- 
man,  20  Vt.  653,  Fed.  Cas.  No.  17,407.  As 
to  the  presentation  of  bills  and  their  approv- 
al, see  Executive  Power. 

Under  the  last  paragraph  of  this  section 
the  senate  has  decided,  July  7,  1856,  that 
two-thirds  of  a  quorum  were  sufficient  to 
pass  a  bill  »ver  a  veto. 


A  proposed  amendment  to  the  constitution 
need  not  be  presented  to  the  president  for 
approval;  Bolllngswortb  v.  Virginia,  3  Dall. 
(U.  S.)  378,  1  L.  Ed.  844;  nor  joint  resolu- 
tions; 6  Opin.  A.  G.  680. 

Bee.  8.  '1 1  tie  section  enu  the  powers 

specifically  granted  to  coi  ad  with  re- 

spect to  them  it  is  held  that  where  they  are 
not  exclusive,  either  expressly  or  b; 
Imputation,  the  states  may  ezi  rdse  them 
concurrently;  Sturges  v.  Crowninshield,  4 
Wheat.  (U.  S.)  193,  4  L.  Ed.  529;  Houston 
v.  Moore,  5  Wheat.  (U.  S.)  49,  5  L.  Kd.  19. 
The  power  of  congress  to  lay  taxes  is  limit- 
ed, so  that  it  may  not  reach  the  means  and 
instrumentalities  of  the  government  of  a 
state;  Pollock  v.  Trust  Co.,  157  U.  8.  429, 
15  Sup.  Ct.  67.°,,  39  L.  Ed.  759;  or  the  salaries 
of  state  officers;  Collector  v.  Day,  11  Wall. 
(U.  S.)  113,  20  L.  Kd.  TJ2;  nor  the  revenues, 
or  interest  on  bonds,  of  municipal  corpora- 
tions of  the  states ;  U.  S.  v.  R.  Co.,  17  Wall. 
(U.  S.)  322,  21  L.  Ed.  597;  Pollock  v.  Trust 
Co.,  157  U.  S.  429.  15  Sup.  Ct.  073,  39  L.  Ed. 
759;  but  it  may  lay  a  tax  upon  an  inherit- 
ance or  property  by  states  or  from  muni<  i- 
palities;  Snyder  v.  Bettman,  190  U.  S.  249, 
23  Sup.  Ct  803,  47  L.  Ed.  1035. 

The  debts  of  the  United  States,  of  which 
congress  is  authorized  to  provide  for  the 
payment,  include  those  of  an  equitable  char- 
acter which  would  not  be  recoverable  in  a 
court  of  law;  as,  for  example,  the  payment 
of  sugar  bounties  to  producers  who  were 
prevented  by  the  repeal  of  the  act  from  ob- 
taining them  in  due  time;  U.  S.  v.  Realty 
Co.,  163  U.  S.  427,  16  Sup.  Ct.  1120,  41  L. 
Ed.  215.  The  requirement  that  taxes  shall 
be  uniform  throughout  the  United  States  is 
a  geographical  expression  and  means  simply 
to  operate  generally  throughout  the  country; 
Knowlton  v.  Moore,  178  U.  S.  41,  20  Sup. 
CL  747,  44  L.  Ed.  969;  High  v.  Coyne,  17S 
U.  S.  Ill,  20  Sup.  Ct.  747,  44  L.  Ed.  997; 
but  this  does  not  include  foreigu  territory 
acquired  by  conquest  or  treaty  and  not  in- 
corporate! into  the  United  States;  Downes 
v.  BiJwtTL  182  U.  S.  244,  21  Sup.  Ct.  770, 
45  L.  Ed.  10S8. 

As  to  the  scope  of  the  taxing  power  of 
congress  In  this  section,  see  Taxation:  Im- 
post; Excise;  as  to  the  power  to  regulate 
commerce,  see  Commerce;  Restraint  of 
Tbade;    Interstate   Cow  •mmissiox; 

as  to  naturalization  and  bankruptcy, 
those  titles:  as  to  coining  money,  see  Cor 
as  to  counterfeiting,  post-offices  and  post- 
roads,  see  Forgery;  Post-Office ;  Postal 
Service  ;  as  to  the  power  to  promote  science 
and  useful  arts,  see  CorvutGUT;  Patent; 
TBAOE-Mabe  :  as  to  the  power  to  establish 
inferior  courts,  see  United  States  Courts; 
as  to  the  power  to  define  and  punish  piracy 
and  felonies  on  the  high  seas,  see  Admiral- 
ty; Piracy;  High  Seas;  as  to  the  power  to 
declare  war  and  support  armies  and  a  navy 


CONSTITUTION 


632 


CONSTITUTION 


and  to  provide  for  the  government  regula- 
tion of  military  forces,  see  War;  Letter  of 
Mabque  and  Reprisal  ;  Military  Law  ; 
Court-Martial  ;  Militia  ;  as  to  the  power  of 
legislation  for  the  seat  of  government,  see 
District  of  Columbia  ;  as  to  the  line  of  dis- 
tinction between  the  authority  of  the  states 
over  their  internal  affairs  and  that  of  con- 
gress in  regulation  of  commerce,  see  Police 
Power  ;  Health  ;  Quarantine  ;  Inspection  ; 
see  also  Navigable  Waters;  Bridge;  Pilot; 
Harbors  ;  Ferries. 

Sec.  9.  The  first  paragraph  of  this  section 
is  no  longer  in  force,  being  superseded  by  the 
13th  and  14th  Amendments.  While  in  force 
it  was  held  to  apply  to  the  African  race  and 
the  word  "migration"  related  to  free  per- 
sons and  "importation"  to  slaves;  New  York 
v.  Compagnie  Generale  Transatlantique,  107 
U.  S.  59,  2  Sup.  Ct.  87,  27  L.  Ed.  383. 

As  to  the  prohibition  of  the  suspension  of 
the  writ  of  habeas  corpus,  see  that  title ; 
as  to  the  three  following  paragraphs,  see 
Bill  of  Attainder  ;  Ex  Post  Facto  ;  Taxa- 
tion. Under  the  last  paragraph  of  this  sec- 
tion it  was  determined  that  a  United  States 
marshal  could  not  hold  the  office  of  commer- 
cial agent  of  France ;  6  Opin.  A.  G.  409. 

Sec.  10.  The  prohibition  of  the  first  para- 
graph of  this  section  operated  to  make  the 
Confederate  government  an  illegal  organiza- 
tion; Williams  v.  Bruffy,  96  U.  S.  176,  24 
L.  Ed.  716;  and  during  the  time  of  the  ex- 
istence of  the  so-called  Confederacy,  the 
states  composing  it  could  not  pass  any  law 
impairing  the  obligation  of  a  contract;  U. 
S.  v.  Kimbal,  13  Wall.  (U.  S.)  636,  20  L.  Ed. 
503 ;  Ford  v.  Surget,  97  U.  S.  594,  24  L.  Ed. 
1018. 

The  prohibitions  against  the  states  are  ab- 
solute. They  cannot,  directly  or  indirectly, 
coin  money;  Briscoe  v.  Bank,  11  Pet.  (U.  S.) 
257,  9  L.  Ed.  709;  emit  bills  of  credit;  Craig 
v.  Missouri,  4  Pet.  (U.  S.)  410,  7  L.  Ed.  903; 
which  implies  a  pledge  of  the  public  faith 
and  the  issue  of  paper  intended  to  circulate 
as  money;  Briscoe  v.  Bank,  11  Pet.  (U.  S.) 
257,  9  L.  Ed.  709;  pass  a  bill  of  attainder, 
which  includes  bills  of  pains  and  penalties  ;• 
Cummings  v.  Missouri,  4  Wall.  (U.  S.)  277, 
18  L.  Ed.  356;  Ex  parte  Garland,  4  Wall. 
(U.  S.)  333,  18  L.  Ed.  366;  Drehman  v.  Stifle, 
8  Wall.  (U.  S.)  595,  19  L.  Ed.  508.  As  to 
the  other  prohibitions,  see  Ex  Post  Facto; 
Impairing  the  Obligation  of  Contracts  ; 
Nobility.  The  prohibition  against  the  entry 
by  a  state  into  an  agreement  or  compact 
with  another  state  or  foreign  power  implies 
the  broadest  use  of  words  and  forbids  any 
negotiations  or  intercourse  between  a  state 
and  a  foreign  nation ;  Bank  of  Augusta  v. 
Earle,  14  Pet.  (U.  S.)  540,  10  L.  Ed.  274. 
The  states  may,  with  the  consent  of  congress, 
enter  into  a  compact  fixing  their  boundaries ; 
Poole  v.  Fleeger,  11  Pet.  (U.  S.)  185.  9  L.  Ed. 
680 ;  Virginia  v.  West  Virginia.  11  Wall.  (U.  S.) 
39,  20  L.  Ed.  67 ;  and  the  consent  of  congress 


may  be  implied  from  its  legislation  and  pro- 
ceedings as  well  as  by  express  action ;  Green 
v.  Biddle,  8  Wheat.  (U.  S.)  1,  5  L  Ed.  547; 
Virginia  v.  West  Virginia,  11  Wall.  (U.  S.) 
39,  20  L  Ed.  67;  Virginia  v.  Tennessee,  148 
U.    S.  503,   13   Sup.  Ct.   728,   37  L.    Ed.  537. 

There  is  nothing  in  the  constitution  of  the 
United  States  prohibiting  a  state  from 
changing  the  common  law  by  permitting  the 
recovery  of  damages  for  injury  sustained 
for  which  at  common  law  there  could  be  no 
recovery ;  Ivey  v.  Telegraph  Co.,  165  Fed. 
371. 

The  second  article  is  divided  into  four  sec- 
tions. The  first  vests  the  executive  power  in 
the  president  of  the  United  States,  and  (as 
amended)  provides  for  his  election  and  that 
of  the  vice-president.  The  second  section 
confers  various  powers  on  the  president. 
The  third  defines  his  duties.  The  fourth  pro- 
vides for  the  impeachment  of  the  president, 
vice-president,  and  all  civil  officers  of  the 
United  States. 

This  article  deals  with  the  executive  pow- 
er vested  in  the  president,  which  compre- 
hends by  that  term  all  the  powers  belonging 
to  the  executive  department,  and  of  govern- 
ments, where  the  three-fold  division  of  gov- 
ernmental powers  is  recognized.  As  to  what 
is  comprehended  in  this  term,  see  Executive 
Power. 

Sec.  1.  The  section  under  consideration 
provides  in  the  first  place  for  the  election  of 
the  president  by  electors  appointed  in  such 
manner  as  the  state  legislature  may  direct, 
and  for  this  purpose  their  power  is  exclu- 
sive, and  a  law  providing  for  their  election 
by  districts  is  valid;  McPherson  v.  Blacker, 
146  U.  S.  1,  13  Sup.  Ct.  3,  36  L.  Ed.  869,  af- 
firming McPherson  v.  Secretary  of  State,  92 
Mich.  377,  52  N.  W.  469,  16  L.  R.  A.  475,  31 
Am.  St.  Rep.  587.  The  jurisdiction  of  an  in- 
dictment for  illegal  voting  for  electors,  even 
where  the  sentence  included  punishment  for 
illegal  voting  for  a  member  of  congress,  is  in 
the  state  courts ;  In  re  Green,  134  U.  S.  377, 
10  Sup.  Ct.  5S6,  33  L  Ed.  951. 

The  third  clause  of  this  section,  providing 
for  the  manner  of  ascertaining  the  result 
of  the  voting  by  the  electors,  and  of  choosing 
a  president  and  vice-president  in  case  of  fail- 
ure to  elect,  is  of  no  further  force  having 
been  supplied  by  the  12th  Amendment. 

The  time  of  choosing  electors  has  been  fix- 
ed by  congress  as  the  Tuesday  next  after  the 
first  Monday  in  November ;  1  U.  S.  R.  S.  § 
131;  and  the  time  for  electors  to  meet  and 
vote  in  their  respective  states  is  the  second 
Monday  in  January;  Act  Feb.  3,  1887,  1 
'Comp.  St.  67,  which  invalidates  a  state  law 
making  provision  for  the  meeting  of  electors, 
so  far  as  the  date  is  concerned,  but  not  oth- 
erwise. The  same  act  provides  (section? 
4-7)  the  method  of  ascertaining  the  result  of 
the  election  by  congress. 

As  to  who  are  natural-born  citizens  and 
citizens  of  the  United  States  with  respect  to 


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633 


CONSTITUTION 


the  qualifications  of  the  president,  see  Citi- 
zen. As  to  the  succession  to  the  presidency 
In  case  of  a  vacancy  in  the  office  of  both 
president  and  vice-president,  see  Cabinet. 

Sec.  2.  Under  the  power  vested  in  the  pres- 
ident as  commander-in-chief  of  the  army  and 
navy,  he  has  authority  without  legislation  to 
put  in  force  all  legitimate  acts  of  belliger- 
ency, among  which  are  included  the  power  to 
remove  an  officer  of  the  army  if  the  case  is 
not  provided  for  by  law;   Keyes  v.  U.  S.,  109 
U.  S.  33G,  3  Sup.  Ct.  202,  27  L.  Ed.  954 ;  and 
to  institute  a  blockade;   U.  S.  v.  The  Tropic 
Wind,  Fed.  Cas.  No.   16,541a;    U.  S.  v.  The 
F.  W.  Johnson,  Fed.  Cas.  No.  15,179;   to  con- 
vene a  general  court-martial;    Swaim  v.  U. 
S.,  165  U.  S.  553,  17  Sup.  Ct.  4 -IS.  41  L.  Ed. 
823;   levy  contributions  on  the  enemy;   Cross 
v.  Harrison,  10  How.   (U.  S.)   164,  190,  14  L. 
Ed.  SS9;    Fleming  v.  Page,  9  How.    (U.  S.) 
603,  13   L.   Ed.  270;    authorize   the  military 
or  naval  commanders  of  conquered  territory 
to  provide  for  civil  and  military  government, 
and  to  impose  duties  on  imports  and  tonnage 
for  its  support;    Dooley  v.  U.  S.,  182  U.  S. 
222,  21  Sup.  Ct.  7G2,  45  L.  Ed.  1074;    Cross  v. 
Harrison,   16   How.    (U.   S.)    164,    14   L.   Ed. 
889;     or    courts    for   the   administration    of 
civil  and  criminal  law  in  such  territory  may 
be  established   by   the  president,   or  a   com- 
manding officer  therein;   Mechanics'  &  Trad- 
ers' Bank  v.  Bank,  22  Wall    (U.  S.)   277,  22 
L.  Ed.  871;    The  Grapeshot,  9  Wall.  (U.  S.) 
129,  19  L.  Ed.  651 ;   Leitensdorfer  v.  Webb,  20 
How.   (U.  S.)   176,  15  L.  Ed.  891.     The  pres- 
ident   becomes    commander-in-chief    of    the 
militia  only  when  it  is  called  into  the  service 
of  the  United  States;    Johnson  v.  Sayre,  158 
U.  S.  109,  15  Sup.  Ct  773,  39  L.  Ed.  914;   but 
his  authority  as  to  when  it  is  necessary  so  to 
call  it  is  decisive ;   Martin  v.  Mott,  12  Wheat. 
(U.  S.)  19,  6  L.  Ed.  537;  and  it  may  be  made 
a  criminal  offence  by  state  statute  for  the 
militia  to  refuse  to  obey  his  call ;   Houston  v. 
Moore,  5  Wheat.  (U.  S.)  1,  5  L.  Ed.  19.    The 
president  may  place  the  militia  under  com- 
mand of  officers  of  the  United  States  army 
to   whom    he   may   delegate   his    powers;    2 
Opin.  A.  G.  711;    but  he  cannot  delegate  his 
judicial   duty   to    review    the    findings   of   a 
court-martial;   Runkle  v.  U.  S.,  122  U.  S.  543, 
7  Sup.  Ct.  1141,  30  L.  Ed.  1167. 

The  pardoning  power  conferred  upon  the 
president  does  not  destroy  the  power  of  con- 
gress to  pass  an  act  of  general  amnesty ; 
Brown  v.  Walker,  161  U.  S.  591,  16  Sup.  Ct. 
644,  40  L.  Ed.  819.  Tardon  includes  amnesty, 
and  there  is  no  distinction  between  them  un- 
der the  constitution;  Knote  v.  U.  S.,  95  U.  S. 
149,  24  L.  Ed.  442;  U.  S.  v.  Klein,  13  Wall. 
(U.  S.)  128,  20  L.  Ed.  519.  A  pardon  is  a 
private  official  act.  and  must  be  conveyed  to 
and  accepted  by  the  criminal,  aud  must  be 
brought  judicially  to  the  attention  of  the 
court  to  he  noticed ;  U.  S.  v.  Wilson,  7  Pet. 
(U.  S.)   150,  8  L.  Ed.  640;    unless  made  by 


public  proclamation,  when  it  has  the  force  of 
law;  Jenkins  v.  Collard,  14.",  r.  S.  r.46,  12 
Sup.  Ct.  868,  36  L.  Ed.  812.  A  pardon  may 
be  granted  before  trial ;  6  Opin.  A.  G.  20;  or 
after  the  expiration  of  imprisonment  when 
that  is  part  of  the  sentence;  Steller's  Case, 
Fed.  Cas.  No.  13,380,  1  Phila.  302;  ;•  Opin. 
A.  G.  478.  He  may  remit  penalties,  for- 
feitures and  fines;  Osborn  v.  U.  S.,  91  T".  S. 
474,  23  L.  Ed.  388;  even  after  the  death  of 
the  offender;  Caldwell's  Case,  11  Opin.  A.  G. 
35 ;  or  fines  imposed  for  contempt  of  court ; 
In  re  Mullee,  7  Blatchf.  23,  Fed.  Cas.  No. 
9,911. 

As  to  the  force  and  effect  of  pardons  gen- 
erally, see  Pabdon;  Amnesty.  As  to  the 
treaty  power,  see  Treaty. 

Nomination  and  appointment  to  office  are 
voluntary  acts  distinct  from  the  issuing  of 
the  commission  ;  Marbury  v.  Madison,  1  Cra. 
(U.  S.)  137,  155,  2  L.  Ed.  60;  and  the  presi- 
dent may,  after  confirmation,  withhold  a 
commission,  and  until  it  has  been  delivered 
the  appointment  is  not  consummated;  Case 
of  Lieutenant  Cox,  4  Opin.  A.  G.  21S ;  but  it 
was  held  in  Marbury  v.  Madison,  1  Cra.  (XL 
S.)  137,  2  L.  Ed.  60,  that  formal  delivery  of 
a  commission  was  not  necessary  to  complete 
the  appointment,  which  was  done  by  affix- 
ing the  seal  to  the  commission ;  this  having 
been  done,  the  death  of  the  president  before 
the  delivery  will  not  affect  its  validity;  U. 
S.  v.  Le  Baron,  19  How.  73,  15  L.  Ed.  525. 
See  Officer;  Executive  Power;  which  lat- 
ter title  see  also  as  to  the  power  of  the 
president  to  make  recess  appointments. 

Inferior  officers,  such  as  are  mentioned  in 
the  second  paragraph  of  the  section,  include 
clerks  of  courts;  In  re  Hennen,  13  Pet.  (U. 
S.)  230,  10  L.  Ed.  138;  U.  S.  v.  Avery,  1 
Deady,  204,  Fed.  Cas.  No.  14,481 ;  extradition 
commissioners;  Rice  v.  Ames,  180  U.  S.  371, 
21  Sup.  Ct.  406,  45  L.  Ed.  577;  vice-consuls; 
U.  S.  v.  Eaton.  169  U.  S.  331,  18  Sup.  Ct.  374, 
42  L.  Ed.  767;  inspectors  of  immigration : 
Nishimura  Ekiu  v.  U.  S.,  142  U.  S.  651,  12 
Sup.  Ct.  336,  35  L.  Ed.   1146. 

Sec.  3.  The  authority  given  to  the  presi- 
dent to  communicate  his  views  and  recom- 
mendations to  congress,  and  his  power  to  ad- 
journ them  in  case  of  disagreement  between 
the  two  houses,  does  not  seem  to  have  been 
the  occasion  of  any  judicial  or  official  con- 
struction. It  is  interesting  to  note  that  Pres- 
ident Wilson  has  revived  the  earlier  c 
of  communieating  his  views  to  both  houses  in 
person.  The  power  to  convene  the  two 
houses  in  extraordinary  sessions  has  been 
frequently  exercised,  and  there  is  not  in  the 
federal  constitution,  as  there  is  in  those  of 
many  states,  any  power  given  to  the  presi- 
dent to  limit  the  subjects  of  consideration  to 
that  for  which  he  calls  the  extraordinary 
sessions.  As  to  the  power  to  receive  ambas- 
sadors and  other  public  ministers,  and  the 
inferences  which  have  been  drawn  from  it, 


CONSTITUTION 


634 


CONSTITUTION 


and  also  the  direction  to  take  care  that  the 
laws  be  faithfully  executed,  see  Executive 
Power. 

It  was  determined  in  Blount's  Case,  p.  22, 
102,  that  a  member  of  either  house  of  con- 
gress is  not  a  civil  officer  subject  to  impeach- 
ment, nor  is  a  territorial  judge,  his  office  be- 
ing created  by  legislation  only;  3  Opin.  A. 
G.  409.  As  to  the  method  of  proceediug  and 
impeachment,  generally,  see  that  title.  The 
constitutional  power  of  impeachment  does 
not  interfere  with  the  president's  power  of 
removal  for  cause  which  he  deems  adequate ; 
Shurtleff  v.  U.  S.,  189  U.  S.  311,  23  Sup.  Ct 
535,  47  L.  Ed.  S28.     See  Executive  Power. 

The  third  article  contains  three  sections. 
The  first  vests  the  judicial  power  in  sundry 
courts,  provides  for  the  tenure  of  office  by 
the  judges,  and  for  their  compensation.  The 
second  provides  for  the  extent  of  the  judicial 
power,  vests  in  the  supreme  court  original 
jurisdiction  in  certain  cases,  and  directs  the 
manner  of  trying  crimes.  The  third  defines 
treason,  and  vests  in  congress  the  power  to 
declare  its  punishment. 

Sec.  1.  This  article  deals  with  the  judicial 
power,  as  to  which,  generally,  see  that  title. 
As  to  the  power  of  the  courts  to  declare  an 
act  of  congress  or  of  a  state  legislature  un- 
constitutional, see  Constitutional,  The  au- 
thority of  the  federal  courts  over  state  leg- 
islation is  confined  to  cases  in  which  it  is 
repugnant  to  the  federal  constitution,  and 
they  have  no  power  to  declare  it  void  under 
the  state  constitution;  Jackson  v.  Lamphire, 
3  Pet.  (U.  S.)  280,  7  L.  Ed.  679. 

The  federal  courts  are  not  to  be  treated 
by  the  state  courts  as  belonging  to  another 
sovereign ;    Com.  v.  R.  Co.,  58  Pa.  43. 

It  was  established  by  an  early  case  that 
the  power  of  congress  to  create  inferior  tri- 
bunals is  unlimited  except  by  the  sense  of  that 
body  as  to  what  is  necessary  and  proper ; 
Stuart  v.  Laird,  1  Cra.  (U.  S.)  299,  2  L.  Ed. 
115;  and  in  tBe  same  case  it  was  answered 
to  an  objection  that  the  judges  of  the  su- 
preme court  had  no  right  to  sit  as  circuit 
judges,  that  the  practice  and  acquiescence 
in  the  custom  "affords  an  irresistible  answer 
and  has  indeed  fixed  the  construction.  It  is 
a  contemporary  interpretation  of  the  most 
forcible  nature  .  .  .  too  strong  and  ob- 
stinate to  be  shaken  or  controlled ;  .  .  . 
the  question  is  at  rest  and  ought  not  now  to 
be  disturbed." 

It  has  also  been  determined  in  many  cases 
that  the  territorial  courts  are  not  courts  of 
the  United  States;  Good  v.  Martin,  95  U.  S. 
90,  24  L.  Ed.  341;  Reynolds  v.  U.  S.,  98  U.  S. 
145,  25  L.  Ed.  244.  As  to  the  territorial 
courts,  generally,  see  McAllister  v.  U.  S.,  141 
U.  S.  174,  11  Sup.  Ct.  949,  35  L.  Ed.  693. 

The  courts  which  congress  is  authorized  by 
this  section  to  establish  do  not  include  a 
court-martial,  or  a  court  for  the  administra- 
tion of  civil  and  criminal  jurisdiction  in 
conquered  territory,   which  may  be   created 


by  the   president;    supra.     See   Coubt-Mab- 

TIAX. 

The  authority  of  congress  to  create  new 
courts  carries  with  it  ex  necessitate  the  pow- 
er to  define  their  jurisdictiou ;  Sheldon  v. 
Sill,  8  How.   (U.  S.)  449,  12  L.  Ed.  1147. 

The  provision  that  the  compensation  of  a 
judge  shall  not  be  diminished  prevents  a  tax 
upon  his  salary;  Com.  v.  Mann,  5  W.  &  S. 
(Pa.)  415. 

Sec.  2.  The  constitutional  jurisdiction  of 
the  federal  courts  cannot  be  affected  by  state 
legislation;  Watson  v.  Tarpley,  18  How.  (U. 
S.)  517,  15  L.  Ed.  509;  Lincoln  County  v. 
Luning,  133  U.  S.  529,  10  Sup.  Ct.  363,  33  L. 
Ed.  7GG;  as  by  attempting  to  regulate  execu- 
tions ;  Bank  of  U.  S.  v.  Halstead,  10  Wheat. 
(U.  S.)  51,  6  L.  Ed.  264;  or  by  the  interfer- 
ence of  state  courts  or  officers  with  persons 
or  property  within  the  jurisdiction  of  the 
federal  court;  Beers  v.  Haughton,  9  Pet.  (U. 
S.)  329,  9  L.  Ed.  145;  Ableman  v.  Booth,  21 
How.  (U.  S.)  506,  16  L.  Ed.  169;  or  by  a 
limitation  of  remedies  within  the  state;  Suy- 
dam  v.  Broadnax,  14  Pet.  (U.  S.)  67,  10  L. 
Ed.  357;  Lincoln  County  v.  Luning,  133  U. 
S.  529,  10  Sup.  Ct.  363,  33  L.  Ed.  766 ;  or  by 
removing  a  case  from  one  state  court  to  an- 
other; Hyde  v.  Stone,  20  How.  (U.  S.)  170, 
15  L.  Ed.  874.  As  to  the  attempts  to  limit  to 
state  courts  the  litigation  by  or  against  for- 
eign corporations,  see  Foreign  Corporation. 
The  grant  of  judicial  power  includes  both 
criminal  and  civil  cases ;  Tennessee  v.  Davis, 
100  U.  S.  257,  25  L.  Ed.  648 ;  but  there  is  no 
common  law  jurisdiction  in  the  federal 
courts  in  criminal  cases;  United  States  v. 
Hudson,  7  Cra.  (U.  S.)  32,  3  L.  Ed.  259; 
though  their  implied  powers  include  all  that 
is  necessary  to  enforce  their  jurisdiction ; 
United  States  v.  Hudson,  7  Cra.  (U.  S.)  32, 
3  L.  Ed.  259. 

Cases  at  law  under  this  section  include  all 
those  usually  embraced  under  that  term,  in- 
cluding for  example,  proceedings  for  the  con- 
demnation of  land  under  the  power  of  emi- 
nent domain;  Chappell  v.  U.  S.,  160  U.  S. 
499,  16  Sup.  Ct.  397,  40  L.  Ed.  510 ;  Kohl  v. 
U.  S.,  91  U.  S.  367,  23  L.  Ed.  449 ;  and  those 
in  equity  are  those  which  are  included  with- 
in the  English  system  of  equity  jurispru- 
dence, and  include  all  cases  of  which  the 
English  court  of  chancery  would  have  juris- 
diction; Boyle  v.  Zacharie,  6  Pet.  (U.  S.) 
648,  8  L.  Ed?  532 ;  Mississippi  Mills  v.  Cohn, 
150  U.  S.  202,  14  Sup.  Ct.  75,  37  L.  Ed.  1052 ; 
and  the  system  of  equity  administered  by  the 
federal  courts  is  determined  by  the  practice 
in  England,  subject  to  changes  by  legislation 
or  by  rule  of  court;  Boyle  v.  Zacharie,  6  Pet. 
(U.  S.)  648,  8  L.  Ed.  532;  but  it  cannot  be 
affected  by  state  legislation ;  Dravo  v.  Fabel, 
132  U.  S.  487,  10  Sup.  Ct.  170,  33  L.  Ed.  421; 
Hollins  v.  Iron  Co.,  150  U.  S.  371,  14  Sup.  Ct 
127,  37  L.  Ed.  1113. 

A  case  "arising"  under  the  constitution, 
laws  or  treaties  of  the  United  States  means 


CONSTITUTION 


635 


CONSTITUTION 


one  which  required  for  its  decision  a  con- 
struction of  either;  Cohens  v.  Virginia,  6 
Wheat.  (U.  S.)  264,  5  L.  Ed.  257;  Martin  v. 
Hunter,  1  Wheat.  (U.  S.)  304,  4  L.  Ed.  97; 
or  which  involves  a  right  created  or  pro- 
tected by  them ;  Patton  v.  Brady,  184  U.  S. 
608,  22  Sup.  Ct.  4ft:;,  4G  L.  Ed.  713;  New  Or- 
leans v.  De  Armas,  9  Pet  (U.  S.)  224,  9  L. 
Ed.  109.  See  as  to  this  point,  Jubisdiction; 
Federal  Question;  Dotted  States  Courts. 
See  those  titles,  generally,  as  to  the  subjects 
of  the  judicial  power  of  the  United  Stal 
enumerated  in  this  section. 

The  clause  relating  to  jury  trials  remains 
unaffected  by  the  6th  Amendment;  Callan  v. 
Wilson,  127  U.  S.  540,  8  Sup.  Ct.  1301,  32  L. 
Ed.  223;  see  Jury.  As  to  the  admiralty  ju- 
risdiction conferred  by  this  section,  see  Ad- 
miralty ;  Maritime  Law  ;  and  other  cognate 
titles. 

The  power  of  congress  to  designate  the 
place  of  trial  for  offences  not  committed 
within  any  state  includes  the  power  to  desig- 
nate a  place  of  trial  for  an  offence  previously 
committed;  Cook  v.  U.  S.,  138  U.  S.  157,  11 
Sup.  Ct.  208,  34  L.  Ed.  906. 

Sec.  3.  As  to  treason,  see  that  title.  The 
provision  as  to  proof  applies  to  the  trial  and 
not  the  preliminary  hearing;  Charge  to 
Grand  Jury,  Treason,  2  Wall.  Jr.  134,  Fed. 
Cas.  No.  18,270;    1  Burr's  Trial  190. 

The  prohibition  contained  in  the  last  para- 
graph of  this  section  was  set  up  to  defeat  a 
forfeiture  of  real  property  employed  in  vio- 
lation of  the  revenue  laws,  as  making  the 
act  under  which  the  remedy  was  applied  in 
practical  effect  a  bill  of  attainder  within  this 
provision,  and  it  was  said  by  Hall,  J.,  that 
the  clauses  in  this  section  "have  respect  to 
high  crimes,  and  punishing  them,  restraining 
rigor  and  guarding  against  arbitrarily  enact- 
ing guilt.  The  case  before  the  court  is  a 
civil  suit  in  rem,  against  the  thing,  to  ratify 
the  seizure  of  it,  and  the  provision  of  the  act 
of  congress  under  which  it  is  alleged  to  be 
forfeited,  and  therefore  was  seized,  is  a  regu- 
lation of  civil  policy,  framed  to  secure  to  the 
United  States  fair  payment  of  taxes  Imposed 
for  the  support  of  the  government,  a  regula- 
tion of  civil  policy  to  accomplish  a  purpose 
vital  to  government ;  for  without  revenue  the 
government  cannot  exist;  and  what  meas- 
ures may  be  requisite  to  enforce  the  collec- 
tion of  a  tax,  it  is  for  congress  in  the  exer- 
cise of  its  legislative  power  to  determine." 
Accordingly,  the  objection  was  overruled, 
and  the  information  sustained,  and  a  decree 
of  condemnation  was  made;  U.  S.  v.  Distil- 
lery, 2  Abb.  U.  S.  192,  Fed.  Cas.  No.  14,965. 

The  fourth  article  is  composed  of  four 
sections.  The  first  provides  that  state  rec- 
ords, etc.,  shall  have  full  faith  and  credit  in 
other  states.  The  second  secures  to  citizens 
of  each  state  all  privileges  and  immunities 
of  citizens  in  the  several  states,  and  the  de- 
livery of  fugitives  from  justice  or  from  labor. 
The  third  provides  for  the  admission  of  new 


states,  and  the  government  of  the  territories. 
The  fourth  guaranty  ry  state  in  the 

Union  a  republican  form  of  government,  and 
protection  from  invasion  or  domestic  vio- 
lence. 

Sec.  1.  As  to  the  full  faith  and  credit  to 
be  given  in  one  state  to  the  records  and  judi- 
cial proceedings  of  another  under  this  sec- 
tion, see  Foreign  Judqmi 

Bee.  -.  As  to  the  privileges  and  immunities 
to  which  citizens  of  each  state  are  entitled 
in  other  states,  see  I'm. in  a  and  Immuni- 
ties. As  to  the  delivery  of  fugitives  from 
justice  by  one  state  to  another,  see  Fugitive 
reou  Justice,  sub-tit.  Interstate  Rendition. 
The  third  paragraph  of  this  section  relates 
mainly  to  slavery  and  is  necessarily  obs 
but  the  expression  "no  person  held  to  service 
or  labor"  includes  apprentices;  Boaler  v. 
Cummines,  5  Clark  (Pa.)  240;  id.,  Fed.  Cas. 
No.  1,584. 

Sec.  3.  It  was  held  in  Luther  v.  Borden,  7 
How.  1,  12  L.  Ed.  581,  that  the  power  of 
sizing  state  governments  is  vested  in 
congress.  The  territories  cannot  without 
the  consent  of  congress  take  legislative  ac- 
tion for  the  formation  of  constitutions  and 
state  governments,  but  the  people  of  a  terri- 
tory may  meet  in  primary  assemblies  or  con- 
ventions for  the  purpose  of  making  applica- 
tion to  congress  for  admission  into  the 
Union  as  a  state;  2  Opin.  A.  G.  726.  The 
admission  of  a  new  state  gives  it  the  Bame 
status  as  the  other  states;  Bolln  v.  Nebras- 
ka. 176  U.  S.  83,  20  Sup.  Ct.  287,  44  L.  Ed. 
382;  Huse  v.  Glover,  119  U.  S.  543.  7  Sup. 
Ct.  313,  30  L.  Ed.  4S7;  and  its  sovereignty 
and  equality  cannot  be  restrained  by  con- 
gressional action;  Withers  v.  Buckley,  20 
How.  (U.  S.)  84,  15  L.  Ed.  816:  and  imme- 
diately upon  its  admission,  the  federal  laws 
extend  over  and  into  it:  Calkin  v.  Cocke,  14 
How.  (U.  S.)  229,  14  L.  Ed.  398 

The  consent  of  the  legislature  to  the  di- 
vision of  a  state  requires  that  it  be  one  rep- 
resenting and  governing  the  whole  state  and 
not  merely  a  part  of  it;  10  Opin.  A.  G.  426. 
The  power  of  congress  over  public  lands  is 
unlimited:  U.  S.  v.  Gratiot,  14  Pot.  526,  10 
L.  Ed.  573;  and  that  power  is  not  afl 
by  the  admission  of  a  territory  as  a  state; 
Camfield  v.  U.  S.,  167  U.  S.  518,  17  Sup.  Ct. 
864,  42  L.  Ed.  260.     See  Lands.  Prune. 

Sec.  4.  The  guarantee  of  a  republican  form 
of  government  to  every  "state"  means  to  its 
people  and  not  to  its  government:  Texas  v. 
White.  7  Wall.  (U.  S.)  700,  19  L.  Ed.  227. 
Where  it  was  also  held  that  this  clause  was 
sufficient  authority  for  the  reconstruction, 
after  the  Civil  War.  of  the  governments  of 
the  states  included  within  the  Confederacy. 
No  precise  definition  Of  what  constitutes 
a  republican  government  under  this  clause 
has  bee:',  judicially  declared;  it  does  not 
involve  the  recognition  of  woman  suffrage: 
Minor  v.  Happersett,  21  Wall.  (U.  S.)  162, 
22  L.  Ed.  027;  nor  is  it  violated  by  a  pro- 


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636 


CONSTITUTION 


vision  for  minority  representation  in  a  con- 
stitutional convention ;  Woods'  Appeal,  75 
Pa.  59;  nor  by  an  act  of  a  state  legislature 
giving  the  courts  control  over  municipal 
boundaries;  Forsyth  v.  Hammond,  166  U. 
S.  506,  17  Sup.  Ct.  665,  41  L.  Ed.  1095.  The 
decision  as  to  what  is  a  republican  govern- 
ment must  necessarily  remain  absolutely 
with  congress ;  Luther  v.  Borden,  7  How. 
(U.  S.)  42,  12  L.  Ed.  581;  and  the  execution 
of  this  constitutional  power  belongs  to  the 
political  department  of  the  government  and 
not  the  judicial;  Taylor  v.  Beckham,  178 
U.  S.  548,  20  Sup.  Ct.  890,  1009,  44  L.  Ed. 
1187.  See  Republican  Form  of  Govern- 
ment. 

The  authority  to  grant  federal  aid  in  the 
suppression  of  domestic  violence  may  be  ex- 
ercised upon  the  call  of  the  executive  when- 
ever the  legislature  cannot  be  convened ;  U. 
S.  v.  Cruikshank,  92  U.  S.  542,  23  L.  Ed.  588. 

The  fifth  article  merely  provides  for  the 
method  of  amendment  which  is  to  be  made 
on  the  proposal  of  two-thirds  of  both  houses 
and  becomes  part  of  the  constitution  when 
ratified  by  the  legislature  of  three-fourths 
of  the  states,  or  by  conventions  in  three- 
fourths  of  the  states,  as  may  be  provided  by 
congress  in  the  proposal.  Congress  may  also 
by  a  vote  of  two-thirds  of  each  house  or  on 
the  application  of  the  legislatures  of  two- 
thirds  of  the  states  call  a  convention  for 
proposing  amendments. 

The  limitations  on  the  power  of  amend- 
ment were  that,  prior  to  1808  the  first  and 
fourth  clauses  in  the  ninth  section  of  the 
first  article  should  not  be  affected.  The 
clauses  in  question  were  those  relating  to 
the  importation  of  slaves,  and  requiring 
capitation  or  other  direct  tax  to  be  laid  in 
proportion  to  the  population. 

It  was  also  provided  "that  no  state,  with- 
out its  consent,  shall  be  deprived  of  its 
equal   suffrage  in  the  senate." 

Proposed  amendments  to  the  constitution 
need  not  be  approved  by  the  president; 
Hollingsworth  v.  Virginia,  3  Dall.  (U.  S.)  378, 
1  L.  Ed.  644. 

The  sixth  article  declares  that  the  debts 
due  under  the  Confederation  shall  be  valid 
against  the  United  States;  that  the  constitu- 
tion and  treaties  made  under  its  powers 
shall  be  the  supreme  law  of  the  land ;  that 
public  officers  shall  be  required  by  oath  or 
affirmation  to  support  the  constitution  of 
the  United  States ;  and  that  no  religious 
test  shall  be  required  as  a  qualification  for 
office. 

The  first  clause  has  reference  to  a  then  con- 
dition and  not  to  general  powers  of  govern- 
ment; Dred  Scott  v.  Sandford,  19  How.  393, 
15  L.  Ed.  691.  The  second  clause  is  a  very 
vital  one,  which  has  been  and  still  is  in  the 
course  of  constant  application  to  test  the  va- 
lidity of  legislation  by  the  states  and  by  con- 
gress. In  either  case  if  repugnant  to  the  feder- 
al constitution,  laws  or  treaties,  it  is  void  and 


the  courts  will  so  declare  it;  Calder  v.  Bull, 
3  Dall.  (U.  S.)  3S6,  1  L.  Ed.  648;  Pollock  v. 
Trust  Co.,  157  U.  S.  429,  15  Sup.  Ct.  673,  39 
L.  Ed.  759;  and  in  many  other  cases,  which 
have  declared  federal  or  state  laws  uncon- 
stitutional, the  principle  has  been  declared. 
The  obligations  imposed  by  the  federal  con- 
stitution cannot  be  released  or  impaired 
by  a  state  constitution;  Dodge  v.  Woolsey, 
18  How.  (U.  S.)  331,  15  L.  Ed.  401;  or  any 
constitution  or  law  of  a  foreign  state  re- 
ceived into  the  Union;  League  v.  De  Young, 
11  How.  (U.  S.)  185,  13  L.  Ed.  657;  Herman 
v.  Phalen,  14  How.  (U.  S.)  79,  14  L.  Ed. 
334.  As  to  the  principles  which  will  be  ap- 
plied in  testing  the  constitutionality  of 
statutes,  see  Constitutional.  And  as  to  the 
force  of  treaties  after  being  duly  executed 
and  ratified,  see  Treaty.  Under  this  pro- 
vision of  the  constitution,  the  constitution, 
laws  and  treaties  of  the  United  States  are 
made  a  part  of  the  law  of  every  state; 
Hauenstein  v.  Lynham,  100  U.  S.  483,  25 
L.  Ed.  628. 

The  seventh  article  directs  what  shall  be 
a  sufficient  ratification  of  this  constitution 
by   the  states. 

In  pursuance  of  the  fifth  article  of  the 
constitution,  articles  in  addition  to,  and 
amendments  of,  the  constitution,  were  pro- 
posed by  congress,  and  ratified  by  the  legis- 
latures of  the  several  states.  These  addi- 
tional articles  are  to  the  following  import. 
The  first  ten  were  proposed  at  the  first 
session  of  the  first  congress,  in  accordance 
with  the  recommendations  of  various  states 
in  ratifying  the  constitution,  and  were  adopt- 
ed in  1791.  The  dates  of  the  adoption  of 
the  subsequent  amendments  are  given  be- 
low. 

As  to  the  combined  effect  of  the  first  ten 
amendments,  see  infra. 

First  Amendment.  Congress  shall  make  no 
law  respecting  an  establishment  of  religion, 
or  prohibiting  the  free  exercise  thereof;  or 
abridging  the  freedom  of  speech;  or  of  the 
press;  or  the  right  of  the  people  to  peace- 
ably assemble,  and  to  petition  the  govern- 
ment for  a  redress  of  grievances. 

Since  this  applies  entirely  to  the  federal 
government,  there  is  no  provision  protecting 
the  religious  liberties  of  citizens  of  the 
states,  and  the  claim  that  an  ordinance  of 
a  state  municipal  corporation  impairs  it, 
raises  no  federal  question ;  Permoli  v.  Munic- 
ipality No.  1  of  New  Orleans,  3  How.  (U. 
S.)  589,  11  L.  Ed.  739;  the  term  "religion" 
in  this  amendment  refers  exclusively  to  a 
person's  views  of  his  relations  to  his  Crea- 
tor, though  often  confused  with  some  par- 
ticular form  of  worship,  from  which  it  must 
be  distinguished;  Davis  v.  Beason,  133  U.  S. 
333,  10  Sup.  Ct.  299,  33  L.  Ed.  637.  The 
religious  freedom  secured  is  not  available 
as  a  protection  against  legislation  for  the 
punishment  of  criminals,  and  their  offences 
are  not  mitigated  by  the  sanction  of  a  rfc- 


CONSTITUTION 


637 


CONSTITUTION 


ligious  sect ;  Church  of  Jesus  Christ  of  L.  D. 
S.  v.  U.  S.,  136  U.  S.  1,  10  Sup.  Ct.  792,  34  L. 
Ed.  478;  (the  Mormon  Church  case);  Reyn- 
olds v.  U.  S.,  98  U.  S.  145,  25  L.  Ed.  244; 
or  by  territorial  legislation;  Davis  v.  Reason, 
133  U.  S.  333,  10  Sup.  Ct.  299,  33  L.  Ed.  637. 
This  provision  securing  religious  freedom 
is  not  violated  by  an  appropriation  of  money 
by  congress  to  a  hospital  as  compensation 
for  the  treatment  of  poor  patients ;  Brad- 
field  v.  Roberts,  175  U.  S.  291,  20  Sup.  Ct 
121,  44  L.  Ed.  168. 

The  provision  securing  freedom  of  speech 
is  not  violated  by  legislation  excluding  alien 
anarchists  from  the  country;  or  their  de- 
portation after  entry  in  violation  of  law; 
U.  S.  v.  Williams,  194  U.  S.  279,  24  Sup.  Ct. 
719,  48  L.  Ed.  979. 

The  provision  securing  freedom  of  the 
press  is  not  invaded  by  the  exclusion  of  lot- 
tery literature  from  the  mails;  Ex  parte 
Rapier,  143  U.  S.  110,  12  Sup.  Ct.  374,  36 
L.  Ed.  93 ;  Horner  v.  U.  S.,  143  U.  S.  207,  12 
Sup.  Ct.  407.  36  L.  Ed.  126;  and  its  transpor- 
tation otherwise  may  be  prohibited;  Lottery 
Case.  188  U.  S.  321,  23  Sup.  Ct.  321,  47  L. 
Ed.  492,  disregarding  a  suggestion  in  In  re 
Jackson,  96  U.  S.  727,  24  L.  Ed.  877. 

The  right  of  peaceable  assemblage  and  of 
petition  was  not  created,  but  simply  recog- 
nized by  the  constitution  and  protected 
against  federal  interference;  for  its  con- 
tinued protection,  the  reliance  must  be  had 
upon  the  states;  U.  S.  v.  Cruikshank,  92  U. 
S.  542,  23  L.  Ed.  588. 

Second  Amendment.  A  well  regulated  mi- 
litia being  necessary  to  the  security  of  a 
free  state,  the  right  of  the  people  to  keep  and 
bear  arms,  shall  not  be  infringed. 

The  right  secured  by  this  article  is  not 
created,  but  only  secured  against  interfer- 
ence by  congress;  U.  S.  v.  Cruikshank,  92 
U.  S.  542,  23  L.  Ed.  588;  and  it  may  be  regu- 
lated by  state  statutes  not  conflicting  with 
valid  congressional  action;  Presser  v.  Illi- 
nois, 116  U.  S.  252,  6  Sup.  Ct  580,  29  L. 
Ed.  615;  Wright  v.  Com.,  77  Pa.  470;  Nunn 
v.  State,  1  Ga.  243;  Cockrum  v.  State,  24 
Tex.  394;  State  v.  Reid,  1  Ala.  612,  35  Am. 
Dec.  44;  State  v.  Mitchell,  3  Blackf.  (Ind.) 
229;  Bliss  v.  Com.,  2  Litt  (Ky.)  90,  13  Am. 
Dec.   251. 

Third  Amendment.  No  soldier  shall,  in 
time  of  peace,  be  quartered  in  any  house, 
without  the  consent  of  the  owner,  nor  in 
time  of  war,  but  in  a  manner  to  be  pre- 
scribed   by   law. 

No  legal  question  seems  to  have  arisen 
under  this  article. 

Fourth  Amendment.  The  right  of  the  peo- 
ple to  be  secure  in  their  persons,  houses, 
papers,  -and  effects,  against  unreasonable 
searches  and  seizures,  shall  not  be  violated, 
and  no  warrants  shall  issue,  but  upon  prob- 
able cause,  supported  by  oath  or  affirmation, 
and  particularly  describing  the  place  to  be 


searched,   and   the  persons  or  things  to   be 
seized. 

The  guaranty  of  this  article  applies  to 
letters  and  sealed  packages  in  the  mails  as 
fully  as  to  property  retained  in  a  man's 
home;  In  re  Jackson.  96  D.  B.  727,  24  L.  Ed. 
877.  It  is  violated  by  an  act  requiring  the 
defendant  in  revenue  cases  to  pi 
private  books  etc.,  in  court,  and  providing 
that,  on  refusal,  the  case  shall  be  taken  as 
confessed  against  him ;  Boyd  v.  U.  S.,  116 
U.  S.  616,  6  Sup.  Ct.  524,  29  L.  Ed.  746;  but 
not  by  an  inquiry  of  a  broker  as  to  pur- 
chases or  sales  on  behalf  of  any  senator 
of  corporate  stock  liable  to  be  affected  by 
the  action  of  the  senate;  In  re  Chapman, 
166  U.  S.  661,  17  Sup.  Ct  677,  41  L,  Ed. 
1154;  nor  by  compulsory  production  of  docu- 
mentary evidence  under  a  statute  which 
gives  immunity  from  prosecution  or  for- 
feiture because  of  the  testimony  given;  In- 
terstate Commerce  Commission  v.  Baird,  194 
U.S.  26,  24  Sup.  Ct  563,  48  L.  Ed.  860.  Tes- 
timony procured  in  violation  of  this  prohi- 
bition is  not  thereby  rendered  inadmissible; 
Adams  v.  New  York,  192  U.  S.  5S5,  24  Sup. 
Ct.  372,  4S  L.  Ed.  575. 

The  provision  as  to  warrants  does  not 
apply  to  any  issued  under  a  state  process: 
Smith  v.  Maryland,  IS  How.  (U.  S.)  71.  18 
L.  Ed.  269 ;  nor  to  an  action  by  the  federal 
government  for  a  debt  due  to  it  without 
search  warrant;  Den  v.  Improv.  Co.,  IS 
How.  (U.  S.)  272.  15  L.  Ed.  372. 

Fifth  Amendment.  No  persons  shall  be 
held  to  answer  for  a  capital,  or  other  in- 
famous crime,  unless  on  a  presentment  or 
indictment  of  a  grand  jury,  except  in  cases 
arising  in  the  land  or  naval  forces,  or  in 
the  militia,  when  in  actual  service  in  time 
of  war  or  public  danger;  nor  shall  any  per- 
son be  subject  for  the  same  offence  to  be 
twice  put  in  jeopardy  of  life  or  limb;  nor 
shall  be  compelled  in  any  criminal  case  to 
be  witness  against  himself,  nor  be  deprived 
of  life,  liberty,  or  property,  without  due 
process  of  law;  nor  shall  private  property 
be  taken  for  public  use,  without  just  com- 
pensation. 

This  amendment  operates  solely  on  the 
federal  government  and  not  on  the  state: 
Barrington  v.  Missouri,  205  U.  S.  4S3,  27 
Sup.  Ct.  582,  51  L.  Ed.  890;  Hunter  v.  Pitts- 
burgh, 207  U.  S.  161,  28  Sup.  Ct  40,  52  I.. 
Ed.  151.  It  is  satisfied  by  one  inquiry  and 
adjudication,  and  an  indictment  found  by 
the  proper  grand  jury  should  be  accepted 
anywhere  within  the  United  States  as  at 
least  prima  facie  evidence  of  probable  cause 
and  sufficient  basis  for  the  removal  of  the 
person  charged  from  the  district  where  he 
is  arrested;  Beavers  v.  llenkel,  194  U.  S.  78, 
24  Sup.  Ct  605,  48  L.  Ed.  882.  The  require- 
ment in  the  amendment  of  presentment  or 
indictment  for  the  grand  jury  does  not  take 
upon   itself    the    locai    law   as    to   how    the 


CONSTITUTION 


638 


CONSTITUTION 


grand  jury  shall  be  made  up  and  raise  the 
latter  to  a  constitutional  requirement;  Tal- 
ton  v.  Mayes,  163  U.  S.  376,  16  Sup.  Ct.  9S6, 
41  L.  Ed.  196. 

Whether  a  person  on  trial  is  compelled  to 
be  witness  against  himself  contrary  to  the 
5th  Amendment  because  compelled  to  stand 
up  and  walk  before  the  jury,  or  because  the 
jury  were  stationed  during  a  recess  so  as 
to  observe  his  size  and  walk,  was  not  de- 
cided, but  it  was  held  that  it  did  not  af- 
fect the  jurisdiction  of  the  trial  court  and 
render  the  judgment  void;  In  re  Moran,  203 
U.  S.  96,  27  Sup.  Ct  25,  51  L.  Ed.  105. 

As  to  the  several  guarantees  contained  in 
this  article,  see  the  separate  titles  and  par- 
ticularly Fourteenth  Amendment;  Due 
Process  of  Law;  Equal  Protection  of  the 
Laws. 

Sixth  Amendment.  In  all  criminal  prose- 
cutions, the  accused  shall  enjoy  the  right 
to  a  speedy  and  public  trial,  by  an  impar- 
tial jury  of  the  state  and  district  wherein 
the  crime  shall  have  been  committed,  which 
district  shall  have  been  previously  ascer- 
tained by  law,  and  to  be  informed  of  the 
nature  and  cause  of  the  accusation;  to  be 
confronted  with  the  witnesses  against  him  ; 
to  have  compulsory  process  for  obtaining 
witnesses  in  his  favor,  and  to  have  the  as- 
sistance of  counsel  for  his  defence. 

The  purpose  of  this  amendment  was  to 
provide  for  trial  by  jury  in  criminal  cases 
in  all  the  federal  courts;  Ex  parte  Milligan, 
4  Wall.  (U.  S.)  2,  18  L.  Ed.  281;  it  applies 
to  the  territories;  Thompson  v*  Utah,  170 
U.  S.  343,  18  Sup.  Ct.  620,  42  L.  Ed.  1061; 
and  after  the  admission  of  a  state,  it  can- 
not provide  for  the  trial  of  felonies  com- 
mitted before  its  admission  otherwise  than 
by  a  common  law  jury;  Thompson  v.  Utah, 
170  U.  S.  343,  18  Sup.  Ct.  620,  42  L.  Ed. 
1061.  The  provision  applies  to  all  criminal 
cases,  not  felonies  merely ;  Callan  v.  Wilson, 
127  U.  S.  540,  8  Sup.  Ct.  1301,  32  L.  Ed. 
223;  but  only  such  crimes  as  were  previous- 
ly tried  by  jury;  U.  S.  v.  Duane,  Wall.  Sr. 
102,  Fed.  Cas.  No.  14,997.  It  does  not  in- 
clude an  action  for  goods  claimed  to  have 
been  forfeited  by  an  importer;  U.  S.'v.  Zuck- 
er,  161  U.  S.  475,  16  Sup.  Ct.  641,  40  L.  Ed. 
777 ;  or  petty  criminal  offences ;  Schick  v. 
U.  S.,  195  U.  S.  65,  24  Sup.  Ct.  826,  49  L. 
Ed.  99,  1  Ann.  Cas.  585.  The  protection  of 
this  amendment  extends  to  aliens  within 
the  country ;  Wong  Wing  v.  U.  S.,  163  U.  S. 
228,  16  Sup.  Ct.  977,  41  L.  Ed.  140. 

See  Jury;  Venue;  Witness. 

Seventh  Amendment.  In  suits  at  common 
law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by 
jury  shall  be  preserved ;  and  no  fact  tried 
by  a  jury  shall  be  otherwise  re-examined 
in  any  court  of  the  United  States,  than  ac- 
cording to  the  rules  of  the  common  law. 

This  article  secures  the  right  of  trial  by 
jury  in  civil  cases.     Suits  at  common  law 


mean  only  those  distinguished  from  ad- 
miralty and  equity ;  Parsons  v.  Bedford,  3 
Pet.  (U.  S.)  433,  7  L.  Ed.  732;  Shields  v. 
Thomas,  IS  How.  (U.  S.)  253,  15  L.  Ed.  368; 
U.  S.  v.  La  Vengeance,  3  Dall.  (U.  S.)  297, 
1  L.  Ed.  610;  but  the  right  cannot  be  im- 
paired by  blending  a  claim  at  law  with  an 
equitable  demand;  Scott  v.  Neely,  140  U.  S. 
106,  11  Sup.  Ct.  712,  35  L.  Ed.  358.  The 
right  to  a  jury  trial  is  secured  in  bank- 
ruptcy cases;  In  re  Wood,  210  U.  S.  246,  258, 
28  Sup.  Ct.  621,  52  L.  Ed.  1046 ;  and  in  pro- 
ceedings for  the  condemnation  of  property 
seized  as  a  prize;  Armstrong's  Foundry,  6 
Wall.  (U.  S.)  766,  18  L.  Ed.  882;  The  Sarah, 
8  Wheat.  (U.  S.)  394,  5  L.  Ed.  644;  it  does 
not  apply  to  proceedings  to  disbar  an  at- 
torney; In  re  Wall,  107  U.  S.  265,  2  Sup. 
Ct  569,  27  L.  Ed.  552;  nor  to  findings  by 
the  court  of  claims;  McElrath  v.  U.  S.,  102 
U.  S.  426,  26  L.  Ed.  189;  or  by  a  special 
tribunal  for  hearing  claims  against  a  munic- 
ipality not  strictly  legal,  but  properly  pro- 
vided for  by  legislation;  Guthrie  Nat.  Bank 
v.  Guthrie,  173  U.  S.  528,  19  Sup.  Ct.  513, 
43  L.  Ed.  796;  nor  to  condemnations  under 
the  right  of  eminent  domain;  Long  Island 
Water  Supply  Co.  v.  Brooklyn,  166  U.  S. 
685,  17  Sup.  Ct.  718,  41  L.  Ed.  1165;  Bau- 
man  v.  Ross,  167  U.  S.  548,  17  Sup.  Ct.  966, 
42  L.  Ed.  270.  The  common  law  which  in 
this  article  is  made  the  criterion  of  suits 
in  which  the  right  of  trial  by  jury  is  se- 
cured is  the  common  law  of  England;  U.  S. 
v.  Wonson,  1  Gall.  5,  Fed.  Cas."  No.  16,750. 
See  Jury. 

Eighth  Amendment.  Excessive  bail  shall 
not  be  required,  nor  excessive  fines  imposed, 
nor  cruel  and  unusual  punishment  inflicted. 

As  to  the  prohibitions  of  this  article,  see 
Baiu;  Fine;  Punishment. 

Ninth  Amendment.  The  enumeration  in 
the  constitution  of  certain  rights,  shall  not 
be  construed  to  deny  or  disparage  others  re- 
tained by  the  people. 

A  distinction  is  taken  between  a  case  of 
express  prohibition  of  state  actions  and  one 
in  which  the  power  of  the  states  is  taken 
away  by  implication.  In  the  former  case 
the  power  of  the  state  ceased  upon  the  adop- 
tion of  the  constitution,  in  the  latter  it 
continues  until  congress  acts  upon  the  sub- 
ject matter;  Moore  v.  Houston,  3  S.  &  R. 
(Pa.)  169,  179,  to  which  a  writ  of  error  to 
the  United  States  Supreme  Court  was  dis- 
missed. So  a  grant  to  congress  of  power 
over  a  certain  subject  matter  does  not  in- 
vest any  particular  court  with  jurisdiction 
over  it  until  congress  has  enacted  a  law 
upon  the  subject;  U.  S.  v.  New  Bedford 
Bridge,  1  Woodb.  &  M.  401,  Fed.  Cas.  No. 
15,867. 

Tenth  Amendment.  The  powers  not  dele- 
gated to  the  United  States  by  the  constitu- 
tion, nor  prohildted  by  it  to  the  states,  are 
reserved  to  the  states  respectfully,  or  to  the 
people. 


CONSTITUTION 


639 


CONSTITUTION 


The  federal  government  possesses  only  the 
delegated  powers  defined  by  the  constitution 
and  all  others  are  reserved  to  the  .states; 
U.  S.  v.  Cruikshank,  92  U.  S.  542,  23  L.  Ed. 
588;  from  this  results  a  different  rule  of  in- 
terpretation of  the  federal  constitution  from 
those  of  the  states;  the  former  is  strict,  the 
latter  liberal ;  Com.  v.  Ilartman,  17  Pa.  118; 
Weister  v.  Hade,  52  Pa.  474.  See  Interpre- 
tation. 

All  powers  not  conferred  upon  the  federal 
government  by  the  constitution  are  reserved 
to  the  states,  and  among  the  powers  not 
surrendered  by  them  are  the  police  power 
(subject  to  the  limitations  imposed  by  the 
constitution)  ;  New  Orleans  Gaslight  Co. 
v.  Light  Co.,  115  IT.  S.  650,  6  Sup.  Gt  252,  29 
L.  Ed.  510;  Louisville  Gas  Co.  v.  Gas  Co., 
115  U.  S.  GS3,  6  Sup.  Ct.  2G5,  29  L.  Ed.  510 ; 
Patterson  v.  Kentucky,  97  U.  S.  501,  24  L. 
Ed.  1115;  Prigg  v.  Com.,  10  Pet.  (U.  S.)  539, 
10  L.  Ed.  1000;  the  right  to  control  tide  wa- 
ters within  the  limits  of  the  states;  Weber 
v.  Harbor  Com'rs,  18  Wall.  (U.  S.)  57,  21  L. 
Ed.  798;  Illinois  Cent.  R.  Co.  v.  Illinois.  146 
U.  S.  387,  13  Sup.  Ct.  110,  30  L.  Ed.  1018; 
Pollard  v.  Hagan,  3  How.  (U.  S.)  212,  11  L. 
Ed.  505;  the  regulation  of  real  property 
with  respect  to  its  acquisition,  tenure  and 
disposition ;  U.  S.  v.  Fox,  94  U.  S.  315,  24  L. 
Ed.  102 ;  and  the  imposition  of  succession 
duties;  Blaekstone  v.  Miller,  188  U.  S.  189, 
23  Sup.  Ct.  277,  47  L.  Ed.  439;  and  generally 
the  power  of  taxation  of  subject  matter  with- 
in their  jurisdiction;  Kirtland  v.  Hotehkiss, 
100  U.  S.  491,  25  L.  Ed.  558;  Providence 
Bank  v.  Billings,  4  Pet.  (U.  S.)  503,  7  L. 
Ed.  939. 

The  United  States  has  no  inherent  pow- 
ers of  sovereignty  and  only  those  enumerat- 
ed in  the  constitution  of  the  United  States; 
the  manifest  purpose  of  the  10th  Amendment 
was  to  put  beyond  dispute  the  proposition 
that  all  powers  not  so  granted  were  reserved 
to  the  people,  and  any  further  powers  can 
only  be  attained  by  a  new  grant;  Kansas  v. 
Colorado,  200  U.  S.  46,  27  Sup.  Ct.  055,  51 
L.  Ed.  950. 

The  first  ten  amendments  do  not  apply  to 
the  states;  Fox  v.  Ohio,  5  How.  (U.  S.  I  410, 
12  L.  Ed.  213;  Twitchell  v.  Pennsylvania,  7 
Wall.  (U.  S.)  321,  19  L.  Ed.  223;  Spies  v. 
Illinois,  123  U.  S.  131,  8  Sup.  Ct.  22,  31  L. 
Ed.  80;  McElvaine  v.  Brush,  142  U.  S.  155, 
100,  12  Sup.  Ct.  150,  35  L.  Ed.  971;  Jack  v. 
Kansas,  199  U.  S.  372.  20  Sup.  Ct.  73,  50  L. 
Ed.  234,  4  Ann.  Cas.  689;  the  same  was  held 
as  to  the  first  eight  amendments;  Twining 
v.  New  Jersey,  211  U.  S.  78.  29  Sup.  Ct.  14, 
53  L.  Ed.  97;  and  as  to  the  2d  and  4th  :  Mil- 
ler v.  Texas,  153  U.  S.  535,  14  Sup.  Ct.  S74, 
38  L.  Ed.  812;  and  as  to  the  5th;  Kelly  v. 
Pittsburgh,  104  U.  S.  78,  20  L.  Ed.  658;  Da- 
vis v.  Texas,  139  U.  S.  651,  11  Sup.  Ct.  675, 
35  L.  Ed.  300;  Fallbrook  Irrig.  district  v. 
Bradley,  104  U.  S.  112,  17  Sup.  Ct.  50,  41  L. 
Ed.  309;  and  as  to  the  5th  and  0th;  In  re 


Sawyer,  124  U.  S.  200,  8  Sup.  Ct  482,  31  L 
Ed.  402;   Davis  v.  Texas,    L39  D.   S.  651,  11 

Sup.  Ct.  075,  35  L.   Ed.   800;  and  as  to  the 
8th  Amendment;   O'Neil  v.   Vermont,   1 
s.  323,  1  Li  Sup.  Ct.  693,  36  L.  Ed.  450;  Eilen- 
becker   v.    District   Court,    134  ■'■!.    10 

Sup.  Ct  424,  33  L.  Ed.  801  ;  Perv     r  . 
5  Wall.  (U.  S.)  475,  18  L.  Ed.  608.     The  pro- 
vision of  the  14 tli  Amendment  forbidding  a 
stale  to  make  or  enforce  any  law  aim 
the  privileges  and  immunities  of  citiz>- 
the  United  States  does  not  operate  to  extend 
to  the  states  the  limitations  on  the  powers 
of  the  federal  government  contained  in   the 
10th  Amendment;  In  re  Ketninler.   136  I  .   B. 
400,  10  Sup.  Ct.  930,  34  L.  Ed.  519;  Maxwell 
v.  Dow,  170  U.  S.  581,  20  Sup.  Ct.  448, 
44  L.  Ed.  597;  or  tbose  contained  in  the  first 
eight  ;   Twining  v.  New  Jersey,  211    l'.    S.   7V. 
2!)   Sup.   Ct.    14,   53  L.    Ed.   07;    but  the  7th 
applies   in  an   appellate   federal   court   to   a 
case  which  was  tried  in  a  state  court;  Jus- 
i   Supreme  Court  v.  U.  S.,  9  Wall.   (U. 
S.)  274,  19  L.  Ed.  658. 

Eleventh  Amendment.  (1798).  The  judi- 
cial power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or 
equity,  commenced  or  prosecuted  against  one 
of  the  United  States,  by  citizens  of  another 
state,  or  by  citizens  or  subjects  of  any  for- 
eign state. 

This  amendment  was  a  result  of  the  deci- 
sion in  Chisholm  v.  Georgia,  2  Dall.  (U.  S.) 
419,  1  L.  Ed.  440.  It  has  been  the  subject 
of  much  judicial  construction  and  the 
upon  the  point  as  to  what  is  a  suit  against 
a  state  are  very  numerous,  the  question  be- 
ing usually  raised  as  to  whether  a  suit 
against  a  state  officer  respecting  property  <>r 
official  action  is  in  fact  a  suit  against  a  state. 

Many  suits  against  state  officers  have  been 
held  to  be  in  effect  against  the  state,  but  it 
is  established,  as  a  settled  principle,  that 
an  attempt  of  a  state  officer  to  enforce  an 
unconstitutional  statute  is  a  proceeding  with- 
out authority  of,  and  does  not  affect,  the 
state  in  its  sovereign  capacity  and  is  an  il- 
legal act,  and  the  officer  is  stripped  of  his 
official  character  and  is  subjected  as  an  in- 
dividual for  the  consequences  of  it.  The 
state  has  no  power  to  impart  to  its  officer 
immunity  from  responsibility  to  the  supreme 
authority  of  the  U.  S. ;  Ex  parte  Yonng.  209 
U.  S.  123,  28  Sup.  Ct.  tfil,  52  L.  Ed.  714,  13 
L.  R.  A.    (N.   S.)    932,   14  Ann.  Cas.   704. 

As  to  what  has  been  held  to  be  a  suit 
against  a  state  within  this  amendment,  see 
State;  and  also  an  Interesting  discussion 
of  the  history  and  scope  of  this  amendment 
by  W.  L.  Guthrie  in  8  Colum.  L.  Rev.  183. 
In  the  South  Carolina  Distillery  Cases.  Mur- 
ray v.  Distilling  Co..  213  U.  S.  151,  29  Sup. 
Ct.  458,  53  I..  Ed.  742,  and  Murray  v.  South 
Carolina.  213  D.  S.  171.  20  Sup.  Ct  4G5,  53 
L.  Ed.  752,  the  first  being  a  certiorari  to  the 
circuit  court  of  appeals,  and  the  second  be- 
ing a  writ  of  error  to  the  supreme  court  of 


CONSTITUTION 


640 


CONSTITUTION 


the  state,  the  former  was  reversed  and  the 
latter  affirmed.  It  was  held  that  a  bill  in 
equity  to  compel  specific  performance  of  a 
contract  between  an  individual  and  the  state 
cannot,  against  the  objection  of  the  state, 
be  maintained  in  the  federal  courts;  and 
that  the  consent  of  a  state  to  be  sued  in  its 
own  courts  by  a  creditor  does  not  give  that 
creditor  a  right  to  sue  in  a  federal  court. 
It  was  also  held  that  although  by  engaging 
in  business,  a  state  may  not  avoid  a  pre- 
existing right  of  the  federal  government  to 
tax  that  business,  it  does  not  thereby  lose 
the  exemption  from  suit  under  this  amend- 
ment, which  was  also  held  to  prevent  a  suit 
in  the  federal  courts  against  state  officers 
by  vendors  of  supplies  for  business  carried 
on  by  the  courts. 

Twelfth  Amendment  (1804).  The  electors 
shall  meet  in  their  respective  states,  and 
vote  by  ballot  for  president  and  vice-presi- 
dent, one  of  whom,  at  least,  shall  not  be  an 
inhabitant  of  the  same  state  with  them- 
selves; they  shall  name  in  their  ballots  the 
person  voted  for  as  president,  and  in  dis- 
tinct ballots  the  person  voted  for  as  vice- 
president,  and  they  shall  make  distinct  lists 
of  all  persons  voted  for  as  president,  and 
of  all  persons  voted  for  as  vice-president, 
and  of  the  number  of  votes  for  each,  which 
list  they  shall  sign  and  certify,  and  trans- 
mit sealed  to  the  seat  of  the  government  of 
the  United  States,  directed  to  the  president 
of  the  senate;  the  president  of  the  senate 
shall,  in  the  presence  of  the  senate  and  house 
of  representatives,  open  all  the  certificates 
and  the  votes  shall  then  be  counted ;  the  per- 
son having  the  greatest  number  of  votes  for 
president,  shall  be  the  president,  if  such 
number  be  a  majority  of  the  whole  number 
of  electors  appointed ;  and  if  no  person  have 
such  majority,  then  from  the  persons  having 
the  highest  numbers,  not  exceeding  three  on 
the  list  of  those  voted  for  as  president,  the 
house  of  representatives  shall  choose  im- 
mediately, by  ballot,  the  president.  But  in 
choosing  the  president,  the  votes  shall  be 
taken  by  states,  the  representation  from  each 
state  having  one  vote ;  a  quorum  for  this  pur- 
pose shall  consist  of  a  member  or  members 
from  two-thirds  of  the  states,  and  a  majority 
of  all  the  states  shall  be  necessary  to  a  choice. 
And  if  the  house  of  representatives  shall  not 
choose  a  president  whenever  the  right  of 
choice  shall  devolve  upon  them,  before  the 
fourth  day  of  March  next  following,  then 
the  vice-president  shall  act  as  president,  as 
in  the  case  of  death  or  other  constitutional 
disability  of  the  president. 

The  person  having  the  greatest  number  of 
votes  as  vice-president  shall  be  the  vice- 
president,  if  such  number  be  a  majority 
of  the  whole  number  of  electors  appoint- 
ed, and  if  no  person  have  a  majority,  then 
from  the  two  highest  numbers  on  the  list, 
the  senate  shall  choose  the  vice-president ; 
a    quorum    for    the    purpose    shall    consist 


of  two-thirds  of  the  whole  number  of  sena- 
tors, and  a  majority  of  the  whole  shall  be 
necessary  to  a  choice. 

But  no  person  constitutionally  ineligible 
to  the  office  of  president  shall  be  eligible  to 
that  of  vice-president  of  the  United  States. 

This  is  a  substitute  for  the  third  para- 
graph of  section  1  of  Article  II  of  the  consti- 
tution and  provides  for  the  method  of  the 
election  of  president  and  vice-president  by 
the  electors,  or  in  default  of  an  election  by 
them. 

Thirteenth  Amendment  (1865).  Neither 
slavery  nor  involuntary  servitude,  except  as 
a  punishment  for  crime  whereof  the  party 
shall  have  been  duly  convicted,  shall  exist 
within  the  United  States,  or  any  place  sub- 
ject to  their  jurisdiction. 

Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation. 

This  amendment  has  been  recognized  by 
the  Supreme  Court  as  having  been  passed 
with  special  reference  to  the  completion  of 
the  enfranchisement  of  the  African  race; 
Ex  parte  Virginia,  100  U.  S.  339,  25  L.  Ed. 
676;  but  the  word  "servitude"  which  is  in- 
cluded in  it  is  of  larger  meaning  than  slav- 
ery, and  by  the  use  of  it  the  amendment 
operates  to  prohibit  any  kind  of  slavery,  in- 
cluding peonage  and  coolie  labor;  Butchers' 
Benevolent  Ass'n  v.  Slaughter  House  Co.,  16 
Wall.  (U.  S.)  36,  21  L.  Ed.  394;  and  every 
species  of  involuntary  servitude;  U.  S.  v. 
Harris,  106  U.  S.  629,  1  Sup.  Ct.  601,  27  L. 
Ed.  290;  but  imprisonment  at  hard  labor, 
compulsory  and  unpaid,  is  in  the  strongest 
sense  of  the  words  within  this  exception; 
Ex  parte  Wilson,  114  U.  S.  417,  5  Sup.  Ct. 
935,  29  L.  Ed.  89.  In  a  much  later  case  than 
those  which  first  defined  the  scope  of  this 
amendment,  it  is  said:  "The  words  'invol- 
untary servitude'  have  a  'larger  meaning 
than  slavery.'  .  .  .  The  plain  intention 
was  to  abolish  slavery  of  whatever  name 
and  form  and  all  its  badges  and  incidents; 
to  render  impossible  anyijltate  of  bondage; 
to  make  labor  free,  by  prohibiting  that  con- 
trol by  which  the  personal  service  of  one 
man  is  disposed  of  or  coerced  for  another's 
benefit  which  is  the  essence  of  involuntary 
servitude."  Bailey  v.  Alabama,  219  U.  S. 
241731  Sup.  Ct.  145,  55  L.  Ed.  191. 

Fourteenth  Amendment  (1868).  All  per- 
sons born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  there- 
of, are  citizens  of  the  United  States  and  of 
the  state  wherein  they  reside.  No  state 
shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citi- 
zens of  the  United  States;  nor  shall  any 
state  deprive  any  person  of  life,  liberty,  or 
property,  without  due  process  of  law;  nor 
deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws. 

Representatives  shall  be  apportioned  among 
the  several  states  according  to  their  respec- 
tive numbers,  counting  the  whole  number  of 


CONSTITUTION 


641 


CON ST  IT  i 


persons  In  each  state,  excluding  Indians  not 
taxed.  But  when  the  right  to  vote  at  any 
election  for  the  choice  of  electors  for  presi- 
dent and  vice-president  of  the  United  States, 
representatives  in  congress,  the  executive 
and  judicial  officers  of  a  state,  or  the  mem- 
bers of  the  legislature  thereof,  is  denied  to 
the  male  Inhabitants  of  such  state,  being  of 
twenty-one  years  of  age,  and  citizens  of  the 
United  States,  or  in  any  way  abridged,  ex- 
cept for  participation  in  rebellion,  or  other 
crime,  the  basis  of  representation  therein 
shall  be  reduced  in  the  proportion  which  the 
number  of  such  male  citizens  shall  bear  to 
the  whole  number  of  male  citizens  twenty- 
one  years  of  age  in  such  state. 

No  person  shall  be  a  senator  or  represent- 
ative in  congress,  or  elector  of  president  or 
vice-president,  or  hold  any  office,  civil  or 
military,  under  the  United  States,  or  under 
any  state,  who.  bavins  previously  taken  an 
oath,  as  a  member  of  congress,  or  as  an  offi- 
cer of  the  United  States,  or  as  a  member  of 
any  state  legislature,  or  as  an  executive  or 
judicial  officer  of  any  state,  to  support  the 
constitution  of  the  United  States,  shall  have 
engaged  in  insurrection  or  rebellion  against 
the  same,  or  given  aid  or  comfort  to  the 
enemies  thereof.  But  congress  may  by  a 
vote  of  two-thirds  of  each  house,  remove  such 
disability. 

The  validity  of  the  public  debt  of  the  Unit- 
ed States,  authorized  by  law.  including  debts 
incurred  for  payment  of  pensions  and  boun- 
ties for  services  in  suppressing  insurrection 
or  rebellion,  shall  not  be  questioned.  But 
neither  the  United  States  nor  any  state  shall 
assume  or  pay  any  debt  or  obligation  incur- 
red in  aid  of  insurrection  or  rebellion  against 
the  United  States,  or  any  claim  for  the  loss 
or  emancipation  of  any  slave ;  but  all  such 
debts,  obligations  and  claims  shall  be  held 
illegal  and  void. 

The  congress  shall  have  power  to  enforce, 
by  appropriate  legislation,  the  provisions  of 
this  article. 

This  amendment  has  given  rise  to  so  much 
discussion  by  the  courts  that  it  requires  full- 
er treatment  than  can  be  given  here,  and 
for  this  see  the  title,  Fourteenth  Amend- 
ment, and  the  cross-references  therein ;  Po- 
lice Power;  Eminent  Domain. 

Fifteenth  Amendment  (1870).  The  right 
of  citizens  of  the  United  States  to  vote  shall 
not  be  denied  or  abridged  by  the  United 
States  or  by  any  state  on  account  of  race, 
color,   or  previous   condition   of   servitude. 

The  congress  shall  have  power  to  enforce 
this  article  by  appropriate  legislation. 

This  amendment  under  the  decisions  is 
not  to  be  extended  beyond  the  precise  mean- 
ing of  the  words  employed.  It  does  not 
operate  to  increase  the  right  of  suffrage  in 
the  states,  except  so  far  as  that  had  been 
previously  abridged  by  "race,  color  or  previ- 
ous condition  of  servitude,"  or  bad  been  con- 
fined to  white  persons;  Ex  parte  Yarbrough, 
Bouv. — 41 


110  U.  S.  651,  4  Sup.  Ct  152,  2«t  L.  Ed.  274. 
It  does  not  confer  the  right  of  suffrage  upon 
women;  Minor  v.  Happer>ett,  21  Wall.  (U. 
S.)  102,  22  L.  Ed.  627;  nor  upon  Indians  still 
under  tribal  relations  and  not  naturalized ; 
Elk  v.  Wilkins,  112  U.  S.  94,  5  Sup.  Ct.  41, 
28  L.  Ed.  643.  The  amendment  is  not  violat- 
ed by  the  qualifications  requiring 
amount  of  literacy;  Williams  v.  M 
170  U.  S.  213,  18  Sup.  Ct.  583,  42  L.  Ed.   1012. 

Sixteenth    Amendment    (1913).      I 
shall  have  power  to  lay  and  collect  ta:  ■ 
Incomes,  from  whatever  source  derived,  with- 
out apportionment  among  the  several  Si 
and   without  regard   to  any   census  or  enu- 
meration." 

Seventeenth  Amendment  (1913).  The  sen- 
ate of  the  United  States  shall  be  composed 
of  two  senators  from  each  state,  elected  by 
the  people  thereof,  for  six  years ;  and  each 
senator  shall  have  one  vote.  The  electors 
in  each  state  shall  have  the  qualifications 
requisite  for  electors  of  the  most  numerous 
branch  of  the  state  legislatures. 

When*  vacancies  happen  in  the  representa- 
tion of  any  state  in  the  senate,  the  executive 
authority  of  such  state  shall  issue  writs  of 
election  to  fill  such  vacancies:  Provided, 
that  the  legislature  of  any  state  may  em- 
power the  executive  thereof  to  make  tem- 
porary appointment  until  the  people  fill  the 
vacancies  by  election  as  the  legislature  may 
direct. 

The  reader  is  referred  to  the  notes  to  the 
United  States  Constitution  in  Vol.  I  of  Ar- 
demas  Stewart's  Edition  of  Purdon's  Dig. 
(Pa.  Stats.)  which  may  be  properly  termed  a 
treatise  on  the  subject  of  great  value. 

CONSTITUTIONAL.  That  which  is  con- 
sonant and  agrees  with  the  constitution. 

Laws  made  in  violation  of  the  constitu- 
tion are  null  and  void.  It  is  well  establish- 
ed that  it  is  the  function  of  the  courts  so  to 
declare  them  in  any  case  coming  before  the 
court,  which  involves  the  question  of  their 
constitutionality.  See  infra.  "An  unco: 
tional  law  is  not  a  law."  Chicago,  I.  &  L. 
Ry.  Co.  v.  Hackett,  228  U.  S.  559,  33  Sup. 
Ct.  5S1,  57  L.  Ed.  — .  The  presumption 
is  always  in  favor  of  the  constitutionality  Of 
a  law,  and  the  party  alleging  the  opposite 
must  clearly  establish  it;  Fletcher  v.  Peck, 
6  Cra.  ( i'.  S.)  87,  3  L.  Ed.  162;  Sw. 
Kechel,  159  U.  S.  3S0,  16  Sup.  Ct.  43,  40 
L.  Ed.  1SS;  U.  S.  v.  Ry.  Co..  160  D.  EL  668, 
16  Sup.  Ct.  1-7.  K>  L.  Ed.  576;  Ex  parte 
Davis,  21  Fed.  396;  Swing  v.  Hoblitzelle, 
S5  Mo.  64;  Pleuler  v.  state,  ll  Neb.  547, 
10  N.  W.  481;  Oom'rs  Of  Leavenworth  Coun- 
ty v.  Miller.  7  Kan.  47!>.  12  Am.  Rep.  42.".; 
Sawyer  v.  Dooley,  -l  Nev.  390,  32  Pac.  437; 
In  re  League  Island.  1  P.rewst.  (Pa.)  •"•_' 1  : 
People  v.  Reardon,  184  N.  Y.  431,  77  x.  E. 
970,  8  L.  R.  A.  iX.  S.)  314,  112  Am.  St.  Rep. 
628,  <">  Ann.  ('as.  515;  Xew  York  v.  Reardon, 
204   U.   S.   152,  27   Sup.   Ct   188,   51   L.   Ed. 


CONSTITUTIONAL. 


642 


CONSTITUTIONAL 


415,  9  Ann.  Cas.  736;  where  an  act  is  ca- 
pable of  two  interpretations,  the  court  will 
adopt  that  which  will  sustain  it  rather  than 
that  which  will  render  it  void  as  unconsti- 
tutional;  St.  Louis  Nat.  Bank  v.  Papin,  4 
Dill.  29,  Fed.  Cas.  No.  12,239;  the  incom- 
patibility of  the  statute  with  the  constitu- 
tion should  be  so  clear  as  to  leave  little  rea- 
son for  doubt  before  it  is  pronounced  to  be 
invalid;  Ex  parte  Garland,  4  Wall.  (U.  S.) 
333,  18  L.  Ed.  3G6. 

An  act  may  be  declared  partly  valid  and 
partly  void  as  unconstitutional ;  Com.  v. 
Kimball,  24  Pick.  (Mass.)  361,  35  Am.  Dec. 
326;  Berry  v.  R.  Co.,  41  Md.  446,  20  Am. 
Rep.  69;  McPherson  v.  Secretary  of  State, 
92  Mich.  377,  52  N.  W.  469,  16  L.  R.  A.  475, 
31  Am.  St.  Rep.  587;  In  re  Sternbach,  45 
Fed.  175;  Marshall  Field  &  Co.  v.  Clark, 
143  U.  S.  649,  12  Sup.  Ct.  495,  36  L.  Ed.  294; 
Unity  v.  Burrage,  103  U.  S.  459,  26  L.  Ed. 
405;  Presser  v.  Illinois,  116  U.  S.  252,  6 
Sup.  Ct.  580,  29  L.  Ed.  615;  Gamble  v.  Mc- 
Crady,  75  N.  C.  509. 

A  part  of  a  law  may  be  unconstitutional, 
while  there  is  no  such  objection  to  the  re- 
maining parts,  and  in  this  case  all  of  the 
law  stands,   except   that  part  which  is  un- 
constitutional;   People  v.  Van  De  Carr,  178 
N.  Y.  425,  70  N.  E.  965,  66  L.  !R.  A.  189,  102 
Am.  St.  Rep.  516;    Cella  Commission  Co.  v. 
Bohlinger,  147  Fed.  419,  78  C.  C.  A.  467,  8 
L.  R.  A.  (N.  S.)  537 ;    but  the  parts  must  be 
wholly  independent  of  each  other ;    Allen  v. 
Louisiana,  103  U.  S.  80,  26  L.  Ed.  318;   and 
capable  of  separation ;  Bank  of  Hamilton  v. 
Dudley,  2  Pet.  (U.  S.)  492,  526,  7  L.  Ed.  496 ; 
Presser  v.  Illinois,  116  U.  S.  252,  6  Sup.  Ct. 
580,  29  L.  Ed.  615 ;    El  Paso  &  N.  E.  R.  Co. 
v.  Gutierrez,  215  U.  S.  87,  30  Sup.  Ct.  21,  54 
L.   Ed.   106.     The  parts  must  be  separable 
so  that  each  may  be  read  by  itself;    Bald- 
win v.  Franks,  120  U.  S.  678,  7  Sup.  Ct.  656, 
763,  30  L.  Ed.  766;   U.  S.  v.  Steffens,  100  U. 
S.  82,  25  L.  Ed.  550;    but  if  the  two  pro- 
visions   are    so    united   that   a    presumption 
arises   that  the  legislature  would  not  have 
adopted  the  one  without  the  other  both  will 
fail ;    Ex  parte  Frazer,  54  Cal.  94 ;   Western 
Union  Tel.  Co.  v.   State,  62  Tex.  630;    Slau- 
son  v.  City   of  Racine,   13   Wis.  398;    Con- 
nolly v.  Sewer  Pipe  Co.,  184  U.  S.  540,  565, 
22  Sup.  Ct.  431,  46  L.  Ed.  679 ;    and  it  is  a 
question  for  the  court  to  determine  whether 
it  was  the  intent  of   congress   to   have  the 
part  which  is  constitutional  stand  by  itself; 
Butts  v.  Transp.  Co.,  230  U.  S.  126,  33  Sup. 

Ct.  964,  57  L.  Ed.  ;    or  where  the  section 

*  which  is  unconstitutional  is  an  inseparable 
part  of  several  sections  which  form  one  sys- 
tem mutually  dependent;  Campau  v.  City 
of  Detroit,  14  Mich.  276;  or  where  all  the 
provisions  of  the  act  are  secondary  to  the 
unconstitutional  provisions;  Brooks  v.  Hy- 
dorn,  76  Mich.  273,  42  N.  W.  1122 ;  where  a 
portion  is  unconstitutional,  the  statute  must 
fall  as  a  whole,  unless  the  apparent  legis- 


lative intent  is  that  in  such  case  the  re- 
maining portion  shall  stand  alone;  Grey  v. 
City  of  Dover,  62  N.  J.  L.  40,  40  Atl.  640. 

This  power  of  the  courts  to  declare  a  law 
unconstitutional  can  only  exist  where  there 
is  a  written  constitution.    No  such  power  is 
possessed  by  the  English  courts,  and  an  act 
of  parliament   is  absolutely   conclusive  and 
binds  everybody  when   once  its  meaning  is 
ascertained.     But,  where  a  written  constitu- 
tion exists,  it  is  the  expression  of  the  will 
of  the  sovereign  power,  and  no  body  which 
owes  its   existence   to  that  constitution   (as 
does  the  legislature)  can  violate  this  funda- 
mental expression  of  the  will  of  the  people. 
It  was  originally  doubted  whether  the  courts 
possessed  this  power,  even  where  a  written 
constitution  exists,  but  it  is  now  established 
beyond  doubt.    The  question  may  arise  with 
regard  to  both  state  and  United  States  laws 
considered    with    reference    to    the    United 
States  constitution,  and  with  regard  to  state 
laws  also  as  considered  in  reference  to  the 
state.     No   important  question   of   law   has 
ever    been   approached   with    more    caution, 
examined  and  discussed  with  more  delibera- 
tion and  finally  determined  more  conclusive- 
ly, than  that  of  the  existence  of  this  judicial 
power.     It  arose  as  early  as  1792,  on  an  act 
conferring   powers   upon   the    judges    which 
were   alleged  to  be  not  judicial,  but  a  de- 
cision  was   avoided    by  repeal   of   the  stat- 
ute;  see  Hayburn's  Case,  2  Dall.  (U.  S.)  409, 
1  L.  Ed.   436;    but  the  question  arising  in 
another  case,   the  act  was  declared  uncon- 
stitutional;    see  U.  S.  v.  Ferreira,  13  How. 
(U.  S.)  40,  52  note,  14  L.  Ed.  42 ;    the  ques- 
tion was  again  raised  in  1798  and  not  de- 
cided;   Calder  v.  Bull,  3  Dall.  (U.   S.)  386, 
1  L.  Ed.  64S;   and  later  it  was  stated  from 
the  bench  as  the  general  sentiment  of  the 
bench  and  bar  that  the  power  existed ;    Com. 
v.   Coxe,  4  Dall.   (U.    S.)  194,  1  L.  Ed.  7S6. 
But  in  1S03  the  question  was  directly  raised 
in  a   famous  case  recently   much   discussed 
in  legal  periodical  literature,  and  the  power 
and  duty  of  the  court  to  declare  an  act  un- 
constitutional were  declared  in  an   opinion 
by  Marshall,  C.  J.,  in  what  Kent  terms  "an 
argument  approaching  to  the  precision  and 
certainty     of     a     mathematical    demonstra- 
tion ;"    1  Kent  453 ;    in  that  case  the  actual 
decision  was   against   the   jurisdiction,    and 
therefore  no  law   was   declared  unconstitu- 
tional,  but  the  reasoning  of  the  opinion  is 
the  basis  of  the  rule  afterwards  applied  and 
firmly  settled;    the  question  was  next  seri- 
ously raised  and  finally  settled  by  the  rea- 
soning of  Marshall,  C.  J.,  in  Cohen  v.  Vir- 
ginia,  6  Wheat.    (U.    S.)  264,  5  L.  Ed.  257; 
Marbury  v.   Madison,   1  Cra.   (U.  -  S.)  137,  2 
L.   Ed.  60;    prior  to  this  decision  the  ques- 
tion had  been  raised  and  decided  in  favor 
of  the  power  of  the  courts  in  New  Jersey; 
State  v.  Parkhurst,  9  N.  J.  L.  427,  440,  444 ; 
in  Virginia,  In  re  First  Case  of  the  Judges,  4 
Call,  1,  135 ;   Com.  v.  Cherry,  2  Va.  Cas.  20 ; 


CONSTITUTIONAL 


G43 


CONSTITUTIONAL 


Page  v.  Pendleton,  Wythe,  211;  in  South 
Carolina,  Bowman  v.  Middleton,  1  Bay  252; 
in  North  Carolina,  Den  v.  Singleton,  1  N.  C. 
48;  in  Rhode  Island,  Pamph.  J.  B.  Varnum, 
Providence,  1787;  and  it  was  raised  in  New 
York  in  a  case  argued  by  Hamilton;  Ham- 
ilton's Works,  vol.  •",.  115;  vol.  7,  197.  Bee 
Dillon,  Laws  &  Jur.  of  Eng.  203. 

In  Eakin  v.  Raub,  12  S.  &  R-  (Pa.)  330, 
Gibson,  C.  J.,  in  a  dissenting  opinion,  was 
of  opinion  that  the  right  of  the  judiciary  to 
declare  a  legislative  act  unconstitutional 
does  not  exist,  unless  expressly  stated;  but 
that  it  is  expressly  given  by  the  clause  In 
the  federal  constitution  which  provides  that 
the  constitution  shall  he  the  supreme  law 
of  the  land,  etc.  The  same  judge  in  Norris 
v.  Clymer,  2  Pa.  281,  said  to  counsel  that 
he  had  changed  his  opinion  for  two  reasons: 
— the  late  convention  of  Pennsylvania  by 
their  silence  sanctioned  the  pretensions  of 
the  court  to  deal  freely  with  the  acts  of  the 
legislature;  and  he  was  satisfied  from  ex- 
perience of  the  necessity  of  the  case. 

The  power  has  been  exercised  by  (he  su- 
preme court  of  the  United  States  in  the  fol- 
lowing cases:  Hayburn's  Case,  2  Dall.  (U. 
S.)  409.  1  L.  Ed.  436;  U.  S.  v.  Ferroira,  13 
How.  (U.  S.)  40,  52,  14  L.  Ed.  42;  Marbury 
v.  Madison,  1  Cra.  (U.  S.)  137,  2  L.  Ed.  GO ; 
Gordon  v.  U.  S..  2  Wall.  (U.  S.)  5G1,  17  L. 
Ed.  921 ;  In  re  Garland,  4  Wall.  (U.  S.)  333, 
18  L.  Ed.  366;  Hepburn  v.  Griswold,  8 
Wall.  (U.  S.)  603,  19  L.  Ed.  513;  U.  S.  v. 
Dewitt,  9  Wall.  (U.  S.)  41,  19  L.  Ed.  593; 
Supreme  Justices  v.  Murray.  9  Wall.  (U.  S.) 
274,  19  L.  Ed.  658;  Collector  v.  Day,  11 
Wall.  (U.  S.)  113,  20  L.  Ed.  122;  U.  S.  v. 
Klein,  13  Wall.  (U.  S.)  128,  20  L.  Ed.  519; 
U.  S.  v.  R.  Co.,  17  Wall.  (U.  S.)  322,  21  L. 
Ed.  597;  U.  S.  v.  Reese,  92  U.  S.  214,  23 
L.  Ed.  563;  U.  S.  v.  Fox,  95  U.  S.  670,  24 
L.  Ed.  538 ;  U.  S.  v.  Steffens,  100  U.  S.  82, 
25  L.  Ed.  550;  Kilbourn  v.  Thompson,  103 
U.  S.  1GS.  26  L.  Ed.  377;  U.  S.  v.  Harris, 
106  U.  S.  629.  1  Snp.  Ct.  601,  27  L.  Ed.  290 ; 
U.  S.  v.  Stanley,  109  U.  S.  3,  3  Sup.  Ct.  18, 
27  L.  Ed.  835;  Boyd  v.  U.  S..  116  U.  S.  616, 
6  Sup.  Ct.  524,  29  L.  Ed.  746;  Pollock  v. 
Trust  Co.,  158  U.  S.  601,  15  Sup.  Ct.  912, 
39  L.  Ed.  1108;  Employers1  Liability  Cases, 
207  U.  S.  463,  2S  Sup.  Ct.  141,  52  L.  Ed.  297; 
Adair  v.  U.  S.,  20S  U.  S.  161,  28  Sup.  Ct. 
277,  52  L.  Ed.  436,  13  Ann.  Cas.  764.  And 
the  power  has  been  exercised  by  (hat  court 
with  respect  to  state  or  territorial  statutes 
in  cases  running  into  the  hundreds. 

The  discussion  of  the  subject  was  recent- 
ly revived  by  an  article  on  the  Income  Tax 
Cases  in  29  Am.  L.  Rev.  550,  characterizing 
the  exercise  of  the  power  in  question  as 
"without  constitutional  warrant"  and  "bus- 
ed only  on  the  plausible  sophistries  of  John 
Marshall,  and  another  by  the  same  writer 
on  the  case  of  Marbury  v.  Madison,  char- 
acterizing the  doctrine  as  an  'unconstitu- 
tional usurpation  of   the  lawmaking  power 


by  the  federal  courts ;"  30  Am.  L.  Rev.  188. 
The  first  of  these  was  followed  by  an  article 
in  the  same  periodical  t;i  with  it; 

id.  55;  and  one  in  34  Am.  L.  Beg.  &  Rev. 
796.  In  the  last  the  subject  is  thoroughly 
reviewed    from    the   earli* 

the  In<  cases,  ami  it  much 

historical   matter   bearing  upon  thi 
not  before    collected.      See  also   7    Ilarv.    L. 
Rev.  129;    19  Am.  L.  Rev.  177;    Coxe  on  Ju- 
dicial   Power   and    Unconstitutional    I..  i 
tion ;     an    elaborate   discussion    of    the   sub- 
ject by  Jno.  B.  Wilson,  Pres't,  Bep.  ti 
Bar  Ass'n  for  1899,  p.  12. 

In  judging  what  a  constitution  mean-. 
it  must  be  Interpreted  in  the  light  and  by 
istance  of  the  common  law;  Durham 
v.  State,  117 Ind. 477,  19  N.  E.  327;  Brewer, 
J„  in  South  Carolina  v.  U.S.,  199  D.  S.  437, 
!  I!»,  26  Sup.  Ct.  110,  50  L.  Ed.  201,  4  Ann.  Cas. 
737;  Matthews.  J.,  in  Smith  v.  Alabama, 
124  U.  S.  465,  478,  8  Sup.  Ct.  564,  31  L.  Ed. 
508;  Cray,  J.,  in  U.  S.  v.  Wong  Kim  Ark, 
let  r.  s.  649,  654,  18  Sup.  Ct.  466,  -1-  I.. 
Ed.  890;  Bradley,  J„  in  Moore  v.  U.  S.,  91 
U.  S.  270,  271.  23  L.  Ed.  346. 

Certain  fundamental  principles  govern  the 
courts  in  passing  upon  the  validity  of  legis- 
lative acts  under  the  constitution;  among 
them  are  the  following: 

It  is  not  usual  as  a  matter  of  practice  for 
courts  to  pass  upon  constitutional  questions 
excepting  before  a  full  bench;  Briscoe  v. 
Bank,  8  Pet  (U.  S.)  118,  8  L.  Ed.  B87. 

It  has  been  said  that  inferior  courts  will 
not  pass  upon  these  questions ;  Ortman  v. 
Greenman,  4  Mich.  291;  but  see,  contra, 
Cooley,  Const.  Lim.  198,  n. ;  Mayberry  v. 
Kelly,  1  Kan.  116.  The  contrary  rule  would 
seem  now  to  be  well  settled. 

Courts  will  not  draw  into  consideration 
constitutional  questions  collaterally,  or  un- 
less the  consideration  is  necessary  to  the 
determination  of  the  very  poinl  in  C 
versy;  Hoover  v.  Wood,  9  Ind.  L!s7  ;  Smith 
v.  Speed,  50  Ala.  277:  Clarke  v.  city  of 
Rochester,  24  Barb.  (X.  Y.)  446;  Parker  v. 
State.  5  Tex.  App.  579;  State  v.  Rich.  20 
Mo.  393;  Ireland  v.  Turnpike  Co.,  19  Ohio 
St.  373.  If  a  statute  is  valid  on  its  face, 
the  court  will  not  look  into  evidence  aliunde 
to  determine  whether  it  violates  the  con- 
stitution; Rankin  v.  Col-ran.  92  CaL  605,  28 
Pac.  673;  but  where  it  is  plainly  invalid  for 
other  reasons,  courts  will  not  pass  on  its 
constitutionality;  State  v.  Price,  8 
(ir.  Ct.  R.  25,  4  O.  C.  D.  296;  Smith  v. 
Speed.  50  Ala.  276:  Weimer  v.  Bunbury.  30 
Mich.  201;  White  v.  Scott,  4  Barb.  (X.  Y.i 
56.  The  question  whether  a  legislative  act 
is  constitutional  never  comes  before  a  court 
for  decision  as  an  abstract  question,  but  can 
only  be  considered  when  it  arises  in  a  suit 
inter  partes.  "The  serious  duty  of  con- 
demning  state  legislation  as  constitutional 
and  void  cannot  be  thrown  upon  this  court, 
except  at  the  suit  of  parties  directly  and 


CONSTITUTIONAL 


644 


CONSTITUTIONAL 


certainly  effected  thereby" ;  Chadwick  v. 
Kelly,  187  U.  S.  540,  23  Sup.  Ct.  175,  47  L. 
Ed.  293;  Manley  v.  Park,  1S7  U.  S.  547,  23 
Sup.  Ct.  208,  47  L.  Ed.  29G.  As  to  the  effect 
of  a  decision  in  such  a  case  upon  the  act  it- 
self, see  infra. 

To  justify  a  court  in  declaring  an  act  un- 
constitutional, the  case  must  be  so  clear  that 
no  reasonable  doubt  can  be  said  to  exist ; 
Blair  v.  Ridgely,  41  Mo.  63,  97  Am.  Dec. 
248;  Smithee  v.  Garth,  33  Ark.  17;  Peti- 
tion of  Wellington,  16  Pick.  (Mass.)  95,  26 
Am.  Dec.  631;  New  York  &  O.  M.  R.  Co.  v. 
Van  Horn,  57  N.  Y.  473 ;  Kerrigan  v.  Force, 
68  N.  Y.  3S1;  Gormley  v.  Taylor,  44  Ga. 
76;  State  v.  R.  Co.,  48  Mo.  468;  see  Lake 
County  v.  'Rollins,  130  U.  S.  662,  9  Sup.  Ct. 
65.1,  32  L.  Ed.  1060;  Rich  v.  Flanders,  39 
N.  H.  304;  Chicago,  D.  &  V.  R.  R.  Co.  v. 
Smith,  62  111.  268,  14  Am.  Rep.  99;  and  every 
intendment  will  be  made  in  favor  of  the 
constitutionality  of  the  law ;  People  v. 
Rucker,  5  Colo.  455.  "The  principle  is  uni- 
versal, that  legislation,  whether  by  congress 
or  by  a  state,  must  be  taken  to  be  valid, 
unless  the  contrary  is  made  clearly  to  ap- 
pear;"  Reid  v.  Colorado,  187  U.  S.  137,  23 
Sup.  Ct.  92,  47  L.  Ed.  108;  and  in  Min- 
singer  v.  Rau,  236  Pa.  327,  84  Atl.  902,  it 
was  said  that  when  an  act  has  been  the  re- 
sult of  deliberate  thought  of  a  commission 
of  prominent  citizens,  and  has  been  passed 
upon  by  two  legislatures  before  final  ap- 
proval by  the  governor,  it  will  not  be  set 
aside  as  unconstitutional  "unless  the  alleged 
breaches  of  the  fundamental  law  are  so 
glaring  that  there  is  no  escape." 

The  courts  cannot  pronounce  void  an  act 
within  the  general  scope  of  legislative  pow- 
ers, merely  because  contrary  to  natural 
justice;  Commissioners  of  Northumberland 
County  v.  Chapman,  2  Rawle  (Pa.)  74 ;  Web- 
er v.  Reinhard,  73  Pa.  370,  13  Am.  Rep.  747 ; 
State  v.  Kruttschnitt,  4  Nev.  178;  Hills  v. 
Chicago,  60  111.  86;  Munn  v.  Illinois,  94  U. 
S.  113,  24  L.  Ed.  77 ;  Martin  v.  Dix,  52  Miss. 
53,  24  Am.  Rep.  661;  Maxwell  v.  Board, 
119  Ind.  20,  23,  19  N.  E.  617,  21  N.  E.  453 ; 
nor  because  it  violates  fundamental  prin- 
ciples of  republican  government,  unless  these 
principles  are  protected  by  the  constitution; 
License  Tax  Cases,  5  Wall.  (U.  S.)  469,  18 
L.  Ed.  497 ;  Perry  v.  Keene,  56  N.  H.  514 ; 
nor  because  it  is  supposed  to  conflict  with 
the  spirit  of  the  constitution;  People  v. 
Fisher,  24  Wend.  (N.  Y.)  220;  Walker  v. 
City  of  Cincinnati,  21  Ohio  St.  14,  8  Am. 
Rep.  24;  Cooley,  Const.  Lim.  (6th  ed.)  204. 
Any  legislative  act  which  does  not  encroach 
upon  the  powers  vested  in  the  other  depart- 
ments of  the  government  must  be  enforced 
by  the  courts;  Chicago,  D.  &  V.  R.  R.  Co. 
v.  Smith,  62  111.  268,  14  Am.  Rep.  99;  Fletch- 
er v.  Peck,  6  Cra.  (U.  S.)  128,  3  L.  Ed.  162. 
The  courts  of  one  state  should  not  declare 
unconstitutional  and  void  a  statute  of  an- 
other state,  whose  courts  had  held  it  con- 


stitutional;   American  Print  Works  v.  Law- 
rence, 23  N.  J.  L.  596,  57  Am.  Dec.  420. 

In  the  discussion  of  this  subject  expres- 
sions have  been  used  from  time  to  time  by 
courts  and  legal  authors  which  tend  to 
leave  in  the  mind  of  the  reader  an  impres- 
sion that  legislative  acts  have  been  set  aside 
upon  some  other  or  higher  ground  than  that 
of  unconstitutionality.  These  expressions 
will  be  found  on  examination  either  to  con- 
sist of  dicta  not  only  entirely  obiter,  but 
usually  not  justified  even  as  dicta  by  the 
facts  of  the  cases  in  which  they  occur,  or 
to  be  qualified  by  a  context  usually  omitted 
in  citing  them.  A  few  of  them  will  suffice 
as  examples.  Judge  Cooley,  in  the  preface 
to  the  second  edition  of  his  very  learned 
work  on  Constitutional  Limitations,  says: 
"There  are  on  all  sides  definite  limitations 
which  circumscribe  the  legislative  author- 
ity, independent  of  the  specific  restraints 
which  the  people  impose  by  their  state  con- 
stitutions." Again,  in  the  work  itself  it  is 
said  that  It  is  not  necessary  that  the  courts, 
before  they  can  set  aside  a  law  as  invalid 
must  be  able  to  find  some  specific  inhibi- 
tion which  has  been  disregarded,  or  some 
specific  command  which  has  been  disobeyed ; 
Cooley,  Const.  Lim.  206.  This  language 
has  been  quoted  and  interpreted  to  sus- 
tain the  idea  sometimes  hinted  at  rather 
than  seriously  and  argumentatively  advanc- 
ed, that  there  is  some  vague  sense  of  jus- 
tice and  right — some  higher  law,  it  might 
be  termed — which  may  justify  a  court  in 
holding  that  a  legislative  act  is  invalid,  in 
the  absence  of  an  express  or  implied  con- 
stitutional objection.  And  it  has  been  con- 
sidered that  the  same  view  is  maintained 
by  Judge  Redfield  in  an  article  in  10  Am. 
L.  Reg.  N.  S.  161.  So  in  an  early  case  it 
has  been  said  that  statutes  against  plain 
and  obvious  principles  of  common  right  and 
common  reason  are  void;  Ham  v.  McClaws, 
1  Bay  (S.  C.)  9S.  So  also  Judge  Story  made 
some  forcible  observations  respecting  "fun- 
damental maxims  of  free  government,"  to 
disregard  which  no  power  "lurked  under 
any  general  grant  of  legislative  authority," 
Wilkinson  v.  Leland,  2  Pet.  (U.  S.)  627,  7 
L.  Ed.  542,  657,  which  have  been  referred  to 
as  supporting  the  view  under  consideration. 
Of  the  like  character  were  the  assertions  of 
Hosmer,  C.  J.,  that  he  could  not  agree  "with 
those  judges  who  assert  the  omnipotence  of 
the  legislature  in  all  cases  when  the  consti- 
tution has  not  interposed  an  explicit  re- 
straint;" Inhabitants  of  Goshen  v.  Inhabit- 
ants of  Stonington,  4  Conn.  209,  225,  10  Am. 
Dec.  121;  and  the  language  of  a  New  York 
court  which  declared  that  the  vested  rights 
of  the  inhabitants  of  the  city  of  New  York 
in  certain  public  property  rested  "not  mere- 
ly upon  the  constitution,  but  upon  the  great 
principles  of  eternal  justice  which  lie  at  the 
foundation  of  all  free  government;"  Ben- 
son v.  City  of  New  York,  10  Barb.   (N.  Y.) 


CONSTITUTIONAL 


G45 


IITUTIONAL 


223,   244.     Commenting   on   these    and   sim- 
ilar statements,    Mr.  C.  A.  Kent,   in   an  ar- 
ticle in  11  Am.  L.  Keg.  N.   S.  734,   says  on 
this  subject:    "The  judiciary  of  a  state  can- 
not   declare    a    legislative    act    unconstitu- 
tional, unless  it  conflict,  expressly  or  by  im- 
plication,   with  some  provision  of  the  state 
or  of  the  federal  constitution."     See  City  of 
Evansville   v.   State,   118   Ind.  42G,   21  N.    E. 
267,  4  L.  R.  A.  93,  note.     A  careful  exami- 
nation of  these  and  other  authorities  relied 
upon   for   the    purpose   stated   will   make   it 
apparent  that  there  is  no  substantial  basis 
for  a  doctrine  which  will  permit  a  court  to 
apply  to  a  legislative  act  any  test  of  valid- 
ity other  than  that  of  its  constitutionality. 
When  there  is  doubt  as  to  the  construction 
of  a  law,  courts  may  give  to  it  one  conso- 
nant  with  rather  than  opposed  to  principles 
of  right  and  justice,  and   this  was  precisely 
the  scope  of   the   South   Carolina  case.     In 
the  New   York   case  the  great  fundamental 
principles  need  not  have  been  referred  to  by 
the  court,  for  the  reason  that  they  were  all 
protected    by    the   constitution,    aud   in    the 
Connecticut  case  not  only  was  no  law  held 
invalid,   but  the  sole  question   decided   was 
that    an    act   declaring    valid   all    marriages 
previously  celebrated  by  a  clergyman  of  any 
roli'-'ious  denomination  according  to  its  forms 
was  constitutional.    The  note  by  Judge  Red- 
field,   referred  to,  is  directed   only  to   show 
that  there  are  limitations  to  the  legislative 
power,   and  that   it  does  not   embrace   "ju- 
dicial decrees  or  despotic  orders  or  assess- 
ments such   as   a  military  conqueror  might 
make,"  under  the  guise  of  taxation.     But  it 
will  be  found  that  the  cases  put  by  him,  as 
well  as  those  used  by  Judge  Cooley,  to  illus- 
trate the  expression  quoted  from  his  work, 
and   indeed  all   of   those   which  have  given 
rise  to  the  theory  under  consideration,  are 
provided  for  in  the   American  constitutions 
either  by  express  prohibitions  and  declara- 
tions of  rights,  or  by  the  distribution  of  the 
powers  of  government  and  the  right  of  the 
judicial  branch   to  determine   finally  wheth- 
er a  given  act  is  an  exercise  of  legislative 
poicer.    The  whole  subject  is  thoroughly  dis- 
cussed   by    Judge    Cooley   In    his    Constitu- 
tional  Limitations,    Gth   ed.,    and   upon    full 
consideration  of  the  authorities  he  concludes 
that  a  court  cannot  "declare  a  statute  un- 
constitutional and  void,  solely  on  the  ground 
of  unjust  and   oppressive  provisions,   or  be- 
cause it  is  supposed   to  violate  the  natural. 
social,  or  political  rights  of  the  citizen,  un- 
less it  be  shown  that  such  injustice  is  pro- 
hibited  or   such   rights    guaranteed   or   pro- 
tected by  the  constitution  (p.  11)7) ;     . 
that   except    when  the   constitution   has   im- 
posed   limits  upon   the  legislative   power,    it 
must   be  considered  as  practically   absolute, 
whether  it  operate  according  to  natural  jus- 
tice or  not  in  any  particular  case"   (p.  201), 
nor   because   of    "apparent  injustice   or  im- 
policy,"   or    because    "they    appear    to   the 


minds  of  the  judges  to  violate  fundamental 
principles   of   republican    government,   a 
it  shall   be  found  that   those  principles   are 
placed    beyond    legislative   encroachment    by 
the  constitution"   (p.  202).      See  a 
Dwar.  Stats.  62. 

"There   is    no   room   in  our  constitutional 
theory    for    any    transcendent    right    or    in- 
stinct  of    nature,   except   as   guar 
the  constitution";    Henry  v.  Cherry  &  Webb, 
30  R.  I.  13,  :;i,  73  Atl.  97,  24  L.  EL  . 
991,    13G    Am.    St.    Rep.    928,    18    Ann. 
1006;    State  v.   McCrillis,  28   R,    I.   165,  66 
Atl.  301,  9  L.  R.  A.  (N.  8.)  635,  L3  Ann. 
701;    State  v.  Ins.  Co.,  73  Conn.  255,  47  Atl. 
299,  57  L.  R.  A.  481,  denying  the  exlfi 
of  "the  vague  notion  of  a  higher  law."     The 
courts  are  not   guardians  of  the  rights   of 
the   people   except   as   those   rights   are   se- 
cured    by    some     constitutional     provision ; 
Cooley,  Const.  Lim.  201.    And  see  a  thorough 
discussion  of  the  subject  of  "Implied  Limi- 
tations upon  the  Exercise  of  the  Legislative 
Power"    by    R.    C.    Dale,    Am.    Bar.    Assn 
Rep.  (1901)  294. 

A  court   cannot   interfere   merely   because 
it  does  not  consider  that  the  circumstl 
at  the  time  justified  the  action  of  the 
lature;   there  must  be  a  clear  unmistakable 
infringement  of  rights  secured  by  the  funda- 
mental  law;    Otis  v.  Parker,  187  U.  S. 
23  Sup.  Ct  1GS,  47  L.  Ed.  323,  where  an  act 
forbidding  sales   of   stock   on    margins    was 
held    not    unconstitutional.      By    way    of   il- 
lustration,   Holmes,    J.,    said    that    no   court 
would   declare  usury   laws    or   Sunday    laws 
unconstitutional,    though    every    member    of 
it  believed  such  law  to  be  unwise  or  u 
while  on  the  other  hand  wagers  may  be  de- 
clared illegal  without  a  statute,  or  lot; 
under    one,    though    formerly    thought    par- 
donable. 

In  the  consideration  of  these  questions, 
the  distinction  between  the  federal  and  state 
constitutions  must  be  borne  in  mind:  "Con- 
gress can  pass  no  laws  but  such  as  the 
constitution  authorizes  expressly  or  by  clear 
implication;  while  the  state  legislature  has 
jurisdiction  of  all  subjects  on  which  its  leg- 
islation is  not  prohibited."  Cooley,  Const 
Lim.  210;  see  Welster  v.  Hade,  52  Pa.  477: 
Giozza  v.  Tiernan,  148  V.  S.  657,  13  Sup. 
Ct.  721,  37  L.  Ed.  599.  But  it  has  been  held 
that  the  decision  of  congress  that  certain 
claims  upon  the  public  treasury  are  found- 
ed upon  moral  and  honorable  obligations 
and  upou  principles  of  right  and  Justice,, 
and  that  public  money  be  appropriated  in 
payment  of  such  claims  is  constitutional. 
and  can  rarely,  if  ever,  be  the  subject  of  re- 
view by  the  judicial  branch  of  the  govern- 
ment; TJ.  s.  v.  Realty  Co.,  163  U.  S.  427,  16 
Sup.  Ct.  1120,  41  L.  Ed.  215. 

No  one  can  attack  as  unconstitutional  an 
Independent  provision  of  a  law,  who  has 
no  interest  in  and  is  not  affected  by  such 
provision;    State  v.  Becker,  3  S.   D.  29,  51 


CONSTITUTIONAL 


646 


CONSTITUTIONAL 


N.  W.  1018;  Farnenian  v.  Cemetery  Ass'n, 
135  Ind.  344,  35  N.  E.  271;  Burnside  v. 
County  Court,  86  Ky.  423,  6  S.  W.  276 ;  Jones 
v.  Black,  48  Ala.  540;  Moore  v.  City  of 
New  Orleans,  32  La.  Ann.  726;  People  v. 
R.  Co.,  89  N.  Y.  75. 

The  judiciary  of  the  United  States  should 
not  strike  down  a  legislative  enactment 
of  a  state,  especially  if  it  has  direct  con- 
nection with  the  social  order,  health  and 
morals  of  its  people,  unless  such  legisla- 
tion plainly  and  palpably  violates  some 
right  granted  or  secured  by  the  national 
constitution,  or  encroaches  upon  the  au- 
thority delegated  to  the  United  States  for 
the  attainment  of  objects  of  national  con- 
cern; Plumley  v.  Massachusetts,  155  U.  S. 
461,  15  Sup.  Ct.  154,  39  L.  Ed.  223. 

An  act  adjudged  to  be  unconstitutional  is 
as  if  it  had  never  been  enacted ;  Sumner 
v.  Beeler,  50  Ind.  341,  19  Am.  Rep.  718; 
City  of  Detroit  v.  Martin,  34  Mich.  170,  22 
Am.  Rep.  512;  Woolsey  v.  Dodge,  6  McLean, 
142,  Fed.  Cas.  No.- 18,032 ;  Clark  v.  Miller, 
54  N.  Y.  52S;  Norton  v.  Shelby  County,  118 
U.  S.  425,  6  Sup.  Ct.  1121,  30  L.  Ed.  178; 
Poindexter  v.  Greenhow,  114  U.  S.  270,  5 
Sup.  Ct.  903,  962,  29  L.  Ed.  185;  though  it 
was  held  in  Com.  v.  McCombs,  56  Pa.  436, 
that  an  officer  acting  under  an  unconstitu- 
tional law  was  a  de  facto  officer.  An  un- 
constitutional law  must  be  deemed  to  have 
the  force  of  law  so  far  as  to  protect  an  of- 
ficer acting  under  it,  until  it  is  declared 
void;  Sessums  v.  Botts,  34  Tex.  335;  but 
see  Astrom  v.  Hammond,  3  McLean,  107, 
Fed.  Cas.  No.  596;  Poindexter  v.  Greenhow, 
114  U.  S.  2S8,  5  Sup.  Ct.  903,  962,  29  L.  Ed. 
185.  If  a  decision  adjudging  a  statute  un- 
constitutional is  afterwards  overruled,  the 
statute  is  considered  to  have  been  in  force 
during  the  whole  period  since  its  enactment ; 
Pierce  v.  Pierce,  46  Ind.  86 ;  but  see  Menges 
v.  Dentler,  33  Pa.  495,  75  Am.  Dec.  616; 
Geddes  v.  Brown,  5  Phila.  (Pa.)  180;  Gelp- 
cke  v.  Dubuque,  9  Am.  L.  Rev.  402.  An 
unconstitutional  act  can  under  no  circum- 
stances be  validated  by  the  legislature ; 
State  v.  Whitesides,  30  S.  C.  579,  9  S.  E. 
661,  3  L.  R.  A.  777. 

See  11  Am.  L.  Reg.  N.  S.  730 ;   9  id.  5S5. 

The  power  of  the  courts  to  declare  legis- 
lative acts  unconstitutional  is  the  subject  of 
an  extended  article  by  Wm.  M.  Meigs,  in 
40  Am.  L.  Rev.  641,  which  in  a  sense  con- 
tinues a  previous  article  in  19  Am.  L.  Rev. 
175.  Mr.  Meigs  elaborates  the  argument  on 
the  subject,  particularly  with  reference  to 
the  early  decisions  and  the  congressional 
debates  on  the  repeal  of  the  Judiciary  Act, 
in  1S02,  of  which  he  declares  his  ignorance 
at  the  time  he  wrote  his  first  article.  He 
cites  five  cases  in  which  the  right  was  exer- 
cised and  two  others  in  which  it  was  ap- 
proved prior  to  1S00,  and  gives  an  interest- 
ing history  of    the   earlier   development  of 


the  subject,  which  has  been  less  discussed  in 
connection  with  it. 

In  passing  upon  an  act  the  court  can 
only  take  the  facts  before  it ;  in  this  way  it 
may  sometimes  enforce  laws  which  would 
be  declared  invalid  if  attacked  in  a  differ- 
ent manner ;  Quong  Wing  v.  Kirkendall,  223 
U.  S.  59,  32  Sup.  Ct.  192,  56  L.  Ed.  350. 

As  to  the  constitutionality  of  various 
classes  of  statutes,  see  the  several  titles  of 
constitutional  law,  including:  Arms;  Bonds; 
Bkidges;  Civil  Rights;  Commerce;  Due 
Process  of  Law;  Eminent  Domain;  Ex 
Post  Facto  Laws;  Executive  Power;  Ex- 
tradition; Federal  Question;  Foreign 
Judgments;  Full  Faith  and  Credit;  Ha- 
beas Corpus;  Impairing  Obligation  of 
Contracts;  Interstate  Commerce;  Judicial 
Power;  Judiciary;  Liquor  Laws;  Orig- 
inal Packages;  Police  Power;  Privileg- 
es and  Immunities;  Retroactive  Laws; 
Special  Legislation;  Statutes;  Taxation; 
Title;  United  States  Courts. 

See  Thorpe,  Amer.  Charters,  Constitutions 
and  Organic  Laws,  for  the  text  of  state 
constitutions. 

CONSTITUTIONAL  CONVENTION.  A 
convention  summoned  by  the  legislature  to 
draw  up  a  new,  or  amend  an  old  constitu- 
tion. It  is  ancillary  and  subservient  to  the 
fundamental  law,  not  hostile  and  paramount 
thereto.  Jameson,  Const.  Conv.  §  11.  It  is 
bound  by  the  act  creating  it;  Wood's  Ap- 
peal, 75  Pa.  59.  See  Jameson,  Const.  Conv. 
§§  376-418.  The  result  of  its  labors,  when 
adopted,  must  be  submitted  to  a  vote  of  the 
people,  before  it  can  become  effective ;  Jame- 
son, §  479  et  seq.  Contra,  if  the  legislature 
does  not  so  provide  in  the  act  calling  the 
convention;  State  v.  Neal,  42  Mo.  119; 
Sproule  v.  Fredericks,  69  Miss.  898,  11  South. 
472 ;  in  such  case  it  need  not  be  submitted 
to  vote ;  Sproule  v.  Fredericks,  69  Miss.  S9S, 
11  South.  472. 

For  a  complete  list  of  Constitutional  con- 
ventions held  in  the  United  States,  to  1876, 
see  Jameson,  Const.  Conv.  Appendix  B,  and 
see  the  work  generally  for  a  full  discussion 
of  the  interesting  questions  which  have  aris- 
en respecting  the  powers  and  duties  of  such 
bodies.    See  State. 

CONSTITUTIONS  OF  CLARENDON.     See 

Clarendon. 

CONSTITUTIONS      OF      THE      FOREST. 

See  Forest  Laws  ;    Charta  de  Foresta. 

CONSTITUTOR.     In    Civil    Law.     He   who 

promised  by  a  simple  pact  to  pay  the  debt 
of  another;  and  this  is  always  a  principal 
obligation.     Inst  4.  6.  9. 

CONSTITUTUM  (Lat).  An  agreement 
to  pay  a  subsisting  debt  which  exists  with- 
out any  stipulation,  whether  of  the  promisor 
or  another  party.  It  differs  from  a  stipu- 
lation in  that  it  must  be  for  an  existing 
debt.    Du  Cange. 


CONSTITUTUM 


647 


CONSTRUCTIVE 


A  day  appointed  for  any  purpose.  A  form 
of  appeal.     Calvinus,   Lex. 

CONSTRAINT.  The  word  constraint  is 
equivalent  to  the  word  restraint.  Edniond- 
son  v.  Harris,  2  Tenn.  Ch.  433. 

CONSTRUCTION  (Lat.  const  mere,  to  put 
together).  In  Practice.  Determining  the 
meaning  and  application  as  to  the  case  in 
question  of  the  provisions  of  a  constitution, 
statute,  will,  or  other  instrument,  or  of  an 
oral   agreement 

Drawing  conclusions  respecting  subjects 
that  lie  beyond  the  direct  expression  of  the 
term.    Lieber,  Leg.  &  Pol  Herm.  20. 

Construction  and  interpretation  are  generally 
used  by  writers  on  legal  subjects,  and  by  the  courts, 
as  synonymous,  soim  times  one  term  being  employed 
and  sometimes  the  other.  Lieber,  in  his  Legal  and 
Political  Hermeneutics,  distinguishes  between  the 
two,  considering  the  province  of  Interpretation  as 
limited  to  the  written  text,  while  construction  goes 
beyond,  and  Includes  cases  where  texts  interpreted 
and  to  be  construed  are  to  be  reconciled  with  rules 
of  law  or  with  compacts  or  constitutions  of  supe- 
rior authority,  or  where  we  reason  from  the  aim  or 
object  of  an  instrument  or  determine  its  application 
to  cases  unprovided  for;  C.  1,  §  8  ;  c.  3,  §  2  ;  c.  4; 
c.  5.  Dr.  Wharton  (2  Contracts,  c.  19)  adopts  this 
view.  Leake  (Digest  of  Contracts  217)  and  Prof. 
James  B.  Thayer  (Evidence  411)  consider  them  as 
synonymous.  Black  (Interpretation  of  Laws  1) 
makes    some   distinction    between    the   terms. 

Legal  rules  of  construction  so  called,  sug- 
gest natural  methods  of  finding  and  weigh- 
ing evidence  and  ascertaining  the  fact  of 
intention,  but  do  not  determine  the  weight 
which  the  evidence  has  in  mind,  and  do  not 
establish  a  conclusion  at  variance  with  that 
reached  by  a  due  consideration  of  all  the 
competent  proof ;  Edes  v.  Boardman,  58  N. 
H.  580,  592. 

A  strict  construction  is  one  which  limits 
the  application  of  the  provisions  of  the  in- 
strument or  agreement  to  cases  clearly  de- 
scribed by  the  words  used.  It  is  called,  also, 
literal. 

A  liberal  construction  is  one  by  which  the 
letter  is  enlarged  or  restrained  so  as  more 
effectually  to  accomplish  the  end  in  view. 
It  is  called,  also,  equitable. 

The  terms  strict  and  liberal  are  applied  mainly 
in  the  construction  of  statutes;  and  the  question 
of  strictness  or  liberality  is  considered  always  with 
reference  to  the  statute  itself,  according  to  whether 
its  application  is  confined  to  those  cases  clearly 
within  the  legitimate  import  of  the  words  used,  or 
is  extended  beyond  though  not  in  violation  of  (ultra 
sed  non  contra)  the  strict  letter.  In  contracts,  a 
strict  construction  as  to  one  party  would  be  liberal 
as  to  the  other. 

One    leading   principle   of  construction   is 
to  carry  out  the  intention  of  the  authors  of 
or  parties   to  the  instrument  or  agrei 
so  far  as  it  can  be  done  without  Infringing 
upon  any  law   of  superior  binding  force. 

The  subject  will  be  treated  under  Inteb- 

PRETATION. 

CONSTRUCTIVE.  That  which  amounts 
in  the  view  of  the  law  to  an  act,  although 
the  act  itself  is  not  necessarily  really  per- 
formed.    For  words  under  this  head,  such 


as  constructive  fraud,  etc.,  see  the  various 
titles  Fraud;    Notice;    Trl'st;    etc. 

CONSUETUDINARIUS  (Lat.).  In  Old 
English  Law.  A  rilual  or  book  containing 
the  rites  and  forms  of  divine  offices  or  the 
customs  of  abbeys  and  i 

A  record  of  the  consuetudincs  (customs). 
Blount;    Whishaw. 

CONSUETUDINARY    LAW.     Customary  or 

traditional  law. 

CONSUETUDINES  FEUDORUM  (Lat. 
feudal  customs).  A  compilation  of  the  law 
of  feuds  or  fiefs  in  Lombardy,  made  A  D. 
1170. 

It  is  called,  also,  the  Book  of  Fiefs,  and  is  of 
great  and  generally  received  authority.  The  com- 
pilation is  said  to  have  been  ordered  by  Frederic 
Barbarossa,  Erskine,  Inst.  2.  3.  5,  and  to  have  been 
made  by  two  Milanese  lawyers,  Spelman,  Gloss.,  but 
this  Is  uncertain.  It  is  commonly  annexed  to  the 
Corpus  Juris  Civilis,  and  is  easily  accessible.  See 
3  Kent,  Comm.,  10th  ed.  6G5,  n. ; t  Spelman,  Gloss. 

CONSUETUDO  (Lat.)  A  custom;  an  es- 
tablished usage  or  practice.    Co.  Litt.  58. 

Tolls;    duties;   taxes.    Co.  Litt.  58  b. 

This  use  of  consuetudo  is  not  correct:  custuma  is 
the  proper  word  to  denote  duties,  etc.  1  Shars.  Bla. 
Com.  313,  n.  An  action  formerly  lay  for  the  re- 
covery of  customs  due,  which  was  commenced  by  a 
writ  de  consuctudinibus  et  scrvitiis  (of  customs  and 
services).  This  is  said  by  Blount  to  be  "a  writ  of 
right  close  which  lies  against  the  tenant  that  deforc- 
eth  the  lord  of  the  rent  and  services  due  him." 
Blount;    Old  Nat.   Brev.   77;     Fitzh.   Nat.   Brev.   151. 

There  were  various  customs:  as,  consuetudo  An- 
glicana  (custom  of  England),  consuetudo  curiae 
(practice  of  a  court),  consuetudo  mercatorum  (cus- 
tom of  merchants).  See  Custom;  Lex;  Lex  et 
Consuetudo  Reoni  Nostiu  ;  Leges  kt  Consuetu- 
dixes  Reg.ni. 

CONSUL.  A  commercial  agent  appointed 
by  a  government  to  reside  in  a  seaport  or 
other  town  of  a  foreign  country,  and  com- 
missioned to  watch  over  the  commercial 
rights  and  privileges  of  the  nation  deputing 
him.  The  term  includes  consuls-general  and 
vice-consuls.    Rev.  Stat.  §  4130. 

A  vice-consul  is  one  acting  in  the  place  of 
a  consul. 

Among  the  Romans,  consuls  were  chief  magis- 
trates who  were  annually  elected  by  the  people,  and 
were  Invested  with  powers  and  functions  similar  to 
those  of  kings.  During  the  middle  ages  the  term 
consul  was  sometimes  applied  to  ordinary  judges; 
and,  In  the  Levant,  maritime  judges  are  yet  called 
consuls.  1  Boulay  Paty,  Dr.  Mar.  tit.  Prcl.  s.  2,  p. 
57.  Officers  with  powers  and  duties  corresponding 
to  those  of  modern  consuls  were  employed  by  the 
ancient  Athenians,  who  had  them  stationed  in  com- 
mercial ports  with  which  they  traded.  3  St.  John, 
Mann,  and  Cus.  of  Auc.  Greece  283.  They  were 
appointed  about  the  middle  of  the  twelfth  century 
by  the  maritime  states  of  the  Mediterranean  ;  and 
their  numbers  have  increased  greatly  with  the 
extension   of  modern  commerce. 

As  a  general  rule,  consuls  represent  the 
subjects  or  citizens  of  their  own  nation  not 
otherwise  represented;  Bee  209;  The  Lon- 
don racket,  1  Mas.  14,  Fed.  Cas.  No.  8,474; 
The  Anne,  3  Wheat.  (U.  S.)  4:;."..  4  L.  Ed. 
428;  The  Antelope,  10  Wheat  (U.  S.)  66, 
6  L.  Ed.  268.  Their  duties  and  privileges 
are  now  generally  limited,  defined,  and  se- 


CONSUL 


648 


CONSUL 


cured  by  commercial  treaties,  or  by  tbe 
laws  of  the  countries  they  represent.  They 
are  not  strictly  judicial  officers;  3  Taunt. 
102;  and  have  no  judicial  powers  except 
those  which  may  be  conferred  by  treaty 
and  statutes.  See  The  William  Harris,  Ware 
367,  Fed.  Cas.  No.  17,695;  Dainese  v.  Hale, 
91  U.  S.  13,  23  L.  Ed.  190. 

American  consuls  are  nominated  by  the 
president  and  confirmed  by  the  senate.  U.  S. 
Const,  art.  2,  §  2.  Upon  the  exercise  of  this 
power  of  appointment  by  the  president,  con- 
gress can  place  no  limitation ;  Foote  v.  U.  S., 
23   Ct.    Cls.   443. 

The  consular  system  was  reorganized  by 
Act  of  April  5,  1906.  Seven  classes  of  con- 
suls-general were  created  with  salaries  run- 
ning from  $12,000  to  $3,000 ;  nine  classes  of 
consuls,  with  salaries  running  from  $8,000 
to  $2,000.  The  offices  of  vice-consul-general, 
deputy-consul-general,  vice-consul  and  depu- 
ty-consul were  continued,  and  also  consular 
agents.  The  office  of  commercial  agent  was 
abolished.  No  cdnsul-general,  consul,  or 
consular  agent,  receiving  a  salary  of  $1,000 
or  over  shall  transact  business  as  a  mer- 
chant, manufacturer,  broker,  or  other  trad- 
er, or  as  a  clerk  for  such,  within  the  limits 
of  his  jurisdiction,  nor  practice  as  a  lawyer. 
They  are  required  to  perform  many  du- 
ties in  relation  to  the  commerce  of  the  Unit- 
ed States  and  towards  masters  of  ships, 
mariners,  and  other  citizens  of  the  United 
States.  Among  these  are  the  authority  to 
receive  protests  or  declarations  which  cap- 
tains, masters,  crews,  passengers,  merchants, 
and  others  make  relating  to  American  com- 
merce; they  are  required  to  administer  on 
the  estates  of  American  citizens  dying  with- 
in their  consular  jurisdiction  and  leaving 
no  legal  representatives,  when  the  laws  of 
the  country  permit  it;  see  2  Curt.  Eccl.  241; 
to  take  charge  of  and  secure  the  effects  of 
stranded  American  vessels  in  the  absence 
of  the  master,  owner,  or  consignee;  to  settle 
disputes  between  masters  of  vessels  and 
the  mariners;  to  provide  for  destitute  sea- 
men within  their  consulate,  and  send  them 
to  the  United  States  at  the  public  expense. 
See  R.  S.  §  1674  et  seq.  Also  to  hear  com- 
plaints of  ill-treatment  of  seamen;  The  Wel- 
haven,  5>5  Fed.  SO.  The  consuls  are  also 
authorized  to  make  certificates  of  certain 
facts  in  certain  cases,  which  receive  faith 
and  credit  in  the  courts  of  the  United 
States;  Potter  v.  Ins.  Co.,  3  Sumn.  27,  Fed. 
Cas.  No.  11,335.  But  these  consular  certif- 
icates are  not  to  be  received  in  evidence, 
unless  they  are  given  in  the  performance  of 
a  consular  function;  Church  v.  Hubbart,  2 
Cra.  (U.  S.)  187,  2  L.  Ed.  249;  Catlett  v.  Ins. 
Co.,  1  Paine  594,  Fed.  Cas.  No.  2,517 ;  U.  S.  v. 
Mitchell,  2  Wash.  C.  C.  478,  Fed.  Cas.  No. 
15,791;  Foster  v.  Davis,  1  Litt.  (Ky.)  71; 
nor  are  they  evidence,  between  persons  not 
parties  or  privies  to  the  transaction,  of  any 
fact,   unless,   either  expressly   or   impliedly, 


made  so  by  statute;  Levy  v.  Burley,  2  Sumn. 
355,  Fed.  Cas.  No.  8,300;  Catlett  v.  Ins.  Co., 
1  Paine  594,  Fed.  Cas.  No.  2,517;  Brown  v. 
The  Independence,  2  Crabbe  54,  Fed.  Cas. 
No.   2,014. 

Their  rights  are  to  be  protected  agreeably 
to  the  laws  of  nations,  and  of  the  treaties 
made  between  the  United  States  and  the 
nation  to  which  they  are  sent. 

A  consul  is  liable  for  negligence  or  omis- 
sion to  perform  seasonably  the  duties  im- 
posed upon  him,  or  for  any  malversation  or 
abuse  of  power,  to  any  injured  person,  for 
all  damages  occasioned  thereby;  and  for 
all  malversation  and  corrupt  conduct  in 
office  a  consul  is  liable  to  indictment. 

Of  foreign  consuls.  Before  a  consul  can 
perform  any  duties  in  the  United  States, 
he  must  be  recognized  by  the  president  of 
the  United  States,  and  have  received  his 
exequatur. 

A  consul  is  clothed  only  with  authority  for 
commercial  purposes ;  he  has  a  right  to  in- 
terpose claims  for  the  restitution  of  property 
belonging  to  the  citizens  of  the  country  he 
represents;  The  Adolph,  1  Curt.  87,  Fed. 
Cas.  No.  86;  The  Loudon  Packet,  1  Max.  14, 
Fed.  Cas.  No.  8,474;  Gernon  v.  Cochran, 
Bee  209,  Fed.  Cas.  No.  5,368;  The  Bello 
Corrunes,  6  Wheat.  (U.  S.)  152,  5  L.  Ed.  229; 
but  he  is  not  to  be  considered  as  a  minister 
or  diplomatic  agent,  intrusted  by  virtue  of 
his  office  to  represent  his  country  in  negotia- 
tions with  foreign  states;  The  Anne,  3 
Wheat.  (U.  S.)  435,  4  L.  Ed.  428.  They  do 
not  represent  the  country,  but  are  subject 
to  the  laws  of  the  country  where  they  re- 
side; U.  S.  v.  Wong  Kim  Ark,  169  U.  S. 
678,  18  Sup.  Ct.  456,  42  L.  Ed.  890. 

Consuls  are  generally  invested  with  spe- 
cial privileges  by  local  laws  and  usages,  or 
by  international  compacts;  but  by  the  laws 
of  nations  they  are  not  entitled  to  the  pe- 
culiar immunities  of  ambassadors.  In  civil 
and  criminal  cases  they  are  subject  to  the 
local  laws,  in  the  same  manner  with  other 
foreign  residents  owing  a  temporary  allegi- 
ance to  the  state;  1  Op.  Atty.  Gen.  45,  302; 
Com.  v.  Kosloff,  5  S.  &  R.  (Pa.)  546;  3  M. 
&  S.  2S4;  U.  S.  v.  Ravara,  2  Dall.  (U.  S.) 
297,  1  L.  Ed.  3S8;  Hall,  Int.  L.  2S9 ;  Wic- 
quefort,  De  VAmbassadeur,  liv.  1,  §  5;  Byn- 
kershoek,  cap.  10;  Marten,  Droit  des  Gens, 
liv.  4,  c.  3,  §  148. 

R.  S.  §  687,  gives  to  the  supreme  court 
original  but  not  exclusive  jurisdiction  of  all 
suits  in  which  a  consul  or  vice-consul  shall 
be  a  party.  See  Mannhardt  v.  Soderstrom, 
1  Binn.  (Pa.)  143;  State  v.  De  La  Foret,  2  N. 

6  M'C.  (S.  C.)  217;  Hall  v.  Young,  3  Pick. 
(Mass.)  80,  15  Am.  Dec.  ISO ;  Sartori  v.  Ham- 
ilton, 13  N.  J.  L.  107;  Valariuo  v.  Thompson, 

7  N.  Y.  576. 

His  functions  may  be  suspended  at  any 
time  by  the  government  to  which  he  is  sent, 
and  his  exequatur  revoked.  In  general,  a 
consul  is  not  liable  personally  on  a  contract. 


CONSUL 


619 


CONSULAR  CuUKTS 


made  in  his  ofllcial  capacity  on  account  of 
his  government;  Jones  v.  Le  Tombe,  3  Dall. 
(U.  S.)  384,  1  L.  Ed.  647.  A  vice-consul  of  a 
foreign  nation,  who  possesses  an  unrevoked 
exequatur  issued  by  the  President  of  the 
United  States,  must  still  be  recognized  by 
the  courts  as  the  accredited  representative 
of  his  country  and  entitled  to  all  its  privi- 
leges, although  the  government  which  Bent 
him  has  been  overthrown  and  a  revolution- 
ary government  established  in  its  place;  U. 
S.  v.  Trumbull,  4S  Fed.  94. 

A  consul  general  is  a  consul  within  an  act 
concerning  acknowledgments  of  real  estate 
instruments;  Linton  v.  Ins.  Co.,  104  Fed.  584, 
44  C.  C.  A.  54. 

See  Consular  Conns. 

CONSULAR  COURTS.  By  Act  of  June 
22,  1S60,  ministers  and  consuls  are  invested 
with  judicial  authority  in  China,  Japan.  Si- 
am,  Egypt  and  Madagascar,  to  try  and  to 
sentence  "all  citizens  of  the  United  States 
charged  with  offences  against  law  committed 
in  such  countries"  and  to  issue  process  in 
execution  of  the  sentence,  and  with  juris- 
diction in  civil  cases  "in  matter  of  contract" 
embracing  "all  controversies  between  citi- 
zens of  the  United  States,  or  others,"  as 
provided  by  treaties.  This  jurisdiction  is 
exercised  in  conformity  with  the  laws  of 
the  United  States  as  to  its  citizens,  and  as  to 
others  to  the  extent  that  the  treaties  re- 
quire. If  such  laws  are  not  adapted  to  the 
object  or  are  deficient  in  suitable  remedies, 
"common  law  and  equity  and  admiralty 
rules"  are  to  be  applied.  If  none  of  the 
above  provide  sufficient  remedies,  then  the 
ministers  shall,  by  decrees  and  regulations 
having  the  force  of  law,  supply  the  deficien- 
cies. 

A  consul  alone  may  decide  all  cases  when 
the  fine  does  not  exceed  $500,  or  the  im- 
prisonment 90  days;  but  if  the  former  ex- 
ceeds $100  or  the  latter  60  days,  an  appeal 
on  the  law  and  facts  ties  to  the  minister. 

If  there  be  no  minister  in  any  such  coun- 
try, his  duties  devolve  upon  the  Secretary 
of  State. 

The  act  is  extended  to  Persia  as  to  dis- 
putes between  United  States  citizens;  and 
by  amendment  (June  14,  1S78)  to  Tripoli, 
Tunis,  Morocco,  Muscat  and  the  Samoan 
Islands  and  to  countries  with  which  an  ap- 
plicable treaty   shall  be  negotiated. 

In  China  and  Japan  (Act  of  July  1,  1S70), 
an  appeal  on  the  law  and  fact  lies  when 
the  matter  in  dispute  exceeds  $500  and  does 
not  exceed  $2,500,  exclusive  of  costs ;  on  final 
judgment  exceeding  $2,500,  an  appeal  lies 
to  the  district  court  for  the  district  of  Cali- 
fornia; there  is  a  like  appeal  by  a  person 
charged  with  crime. 

By  treaty  between  the  United  States  and 
Japan,  Nov.  22,  1894,  it  was  provided  that 
on  July  17,  1899,  consular  jurisdiction  in 
Japan  should  "absolutely  and  without  notice 


cease   and   determine."     2   Moore,   Int.   Dig. 

Co'J. 

.  By  Act  of  March  23,    1874,   the 

may  suspend  the  Act  of  June  22,  1860,  as 
to  the  territory  of  the  Sublime  Porte  and 
Egypt,  or  either  of  them,  upon  the  organiza- 
tion of  judicial  tribunals  by  the  Ott 
Government  and  accept  such  tribunals.  See 
Mixed  Tbxbi  nals. 

In  China  (Act  of  June  30,  1906),  consular 
courts   have  the   above  jurisdiction   in   civil 
where  the  sum  or  value  of  the  prop- 
erly does  not  exceed  $500,  and  in  criminal 

where  the  punishment  cannot  e 
$100  fine  or  60  days  imprisonment;  all  oth- 
er jurisdiction  is  given  by  thai  act  to  the 
"United  States  Court  for  China."  See 
China.  The  vice-consul  at  Shanghai  (Act 
of  March  2,  1909)  exercises  such  judicial 
functions  in  the  place  of  the  consul-general. 

The  judicial  system  of  the  United  States 
in  China  was  held  to  be  constitutional  in 
Forbes  v.  Scannell,  13  Cal.  242. 

By  Act  of  June  22,  1860,  insurrection 
against  any  of  the  countries  named,  and 
murder,  are  punishable  with  death.  Such 
cases,  and  also  felonies,  are  tried  before  the 
minister. 

In  criminal  cases  of  legal  difficulty,  or 
when  the  consul  deems  that  severer  punish- 
ments than  those  specified  will  be  required, 
he  shall  summon  not  exceeding  four  citi- 
zens of  the  United  States,  and  in  capital 
cases  not  less  than  four,  to  sit  with  him  in 
the  trial.  The  consul  may  alone  decide  civil 
cases  when  the  damages  demanded  do  not 
exceed  $500,  but  if  he  is  of  opinion  that  any 
such  cases  involve  legal  perplexities,  or 
such  damages  exceed  $500,  he  shall  call  in 
two  or  three  citizens  of  the  United  E 
to  sit  with  him.  If  all  agree,  the  judgment 
is  final.  If  any  associate  differs  from  the 
consul,  either  party  may  appeal  to  the  min- 
ister, but  if  there  be  no  appeal,  the  decision 
of  the  consul  is  final. 

The  constitutional  guaranty  of  trial  In- 
jury and  indictment  by  grand  jury  does  not 
apply  to  consular  courts  in  trying  offenses 
committed  in  a  foreign  country.  In  re 
BOSS,  140  U.  S.  453,  11  Sup.  Ct.  S97,  35  L. 
Ed.  581.  The  jurisdiction  of  home  courts 
over  offenses  on  the  high  seas  does  not 
elude  the  jurisdiction  of  a  consular  court 
if  the  offender  is  not  taken  to  the  United 
States;  id. 

CONSULAR    OFFICER.     See  Consul. 

CONSULTATION.  The  name  of  a  writ 
whereby  a  cause,  being  formerly  removed 
by  prohibition  out  of  an  inferior  court  into 
some  of  the  king's  courts  in  Westminster,  is 
returned  thither  again;  for,  if  the  judg 
the  superior  court,  comparing  the  proceed- 
ings with  the  suggestion  of  the  party,  find 
the  suggestion  false  or  not  proved,  and  that, 
therefore,  the  cause  was  wrongfully  called 
from  the  inferior  court,  then,  upon  consul- 


CONSULTATION 


650 


CONTAGIOUS  DISEASES 


tation  and  deliberation,  they  decree  it  to  be 
returned,  whereupon  this  writ  issues.  Ter- 
mes  de  la  Ley;  3  Bla.  Com.  114. 

In  French  Law.  The  opinion  of  counsel 
upon  a  poiut  of  law  submitted  to  them. 

CONSUMMATE.  Complete;  finished;  en- 
tire. 

A  marriage  is  said  to  be  consummate.  A  right  of 
dower  is  inchoate  when  coverture  and  seisin  concur, 
consummate  upon  the  husband's  death.  1  Washb. 
R.  P.  250,  251.  A  tenancy  by  the  curtesy  is  initiate 
upon  the  birth  of  issue,  and  consummate  upon  the 
death  of  the  wife.  1  Washb.  R.  P.  140;  Watson  v. 
Watson,  13  Conn.  83;  Witham  v.  Perkins,  2  Greenl. 
(Me.)  400;    2  Bla.  Com.  12S. 

A  contract  is  said  to  be  consummated  when  every- 
thing to  be  done  in  relation  to  making  it  has  been 
accomplished.  It  is  frequently  of  great  importance 
to  know  when  a  contract  has  been  consummated,  in 
order  to  ascertain  the  rights  of  the  parties,  particu- 
larly in  the  contract  of  sale.  See  Delivery,  where 
the  subject  is  more  fully  examined.  It  is  also  some- 
times of  consequence  to  ascertain  where  the  con- 
summation of  the  contract  took  place,  in  order  to 
decide  by  what  law  it  is  to  be  governed.  See  Con- 
flict of  Laws;    Contract;    Lex  Loci. 

CONTAGIOUS    DISEASES.       Diseases 

which  are  capable  of  being  transmitted  by 
mediate  or  immediate  contact. 

Persons  sick  of  such  disorders  may  re- 
main in  their  own  houses;  Boom  v.  City  of 
Utica,  2  Barb.  (N.  Y.)  104;  but  are  indict- 
able for  exposing  themselves  in  a  public 
place  endangering  the  public.  See  4  M.  & 
S.  73,  272.  Nuisances  which  produce  such 
diseases  may  be  abated;  Meeker  v.  Van 
Rensselaer,  15  Wend.  (N.  Y.)  397.  See  Peo- 
ple v.  Townsend,  3  Hill  (N.  Y.)  479;  Barclay 
v.  Com.,  25  Pa.  503,  64  Am.  Dec.  715 ;  Cald- 
well v.  Bridal,  48  la.  15 ;  and  a  right  of  ac- 
tion may  also  be  had  for  injury  done  to 
health;  Jarvis  v.  Ry.  Co.,  26  Mo.  App.  253; 
Fow  v.  Roberts,  108  Pa.  489. 

A  landlord  is  liable  in  damages  for  rent- 
ing a  property  knowing  it  to  be  contaminat- 
ed with  an  infectious  disease ;  Snyder  v.  Gor- 
den,  12  N.  Y.  St.  Rep.  556;  under  the  police 
power,  cities  and  towns  may  adopt  ordinanc- 
es for  the  preservation  and  promotion  of  the 
health  of  the  inhabitants;  Com.  v.  Cutter, 
156  Mass.  52,  29  N.  E.  1146;  Com.  v.  Hub- 
ley,  172  Mass.  58,  51  N.  E.  448,  42  L.  R. 
A.  403,  70  Am.  St.  Rep.  242;  Borden's  Con- 
densed Milk  Co.  v.  Board  of  Health,  81 
N.  J.  L.  218,  80  Atl.  30.  It  is  not  uncon- 
stitutional, as  a  deprivation  of  property 
without  due  process  of  law,  to  pass  an  or- 
dinance directing  a  milk  inspector  to  de- 
stroy all  milk  below  a  certain  standard  of 
purity  without  notice  to  the  owner;  Blazier 
v.  Miller,  10  Hun  (N.  Y.)  435;  nor  is  an  act 
unconstitutional  as  denying  equal  protection 
of  the  laws  which  gives  a  state  board  of 
health  authority  to  prevent  the  landing  of 
passengers  and  goods  from  a  ship  to  a  lo- 
cality infected  by  contagious  disease;  Com- 
pagnie  Francaise  de  Navigation  a  Vapeur 
v.  Board  of  Health,  186  U.  S.  380,  22  Sup. 
Ct  811,  46  L.  Ed.  1209,  affirming  51  La. 
Ann.  645,  25  South.  591,  56  L.  R.  A.  795,  72 


Am.  St.  Rep.  458;  vaccination  laws  making 
vaccination  of  children  a  condition  of  their 
attendance  in  public  schools  are  not  unf 
constitutional ;  Viemeister  v.  White,  88  App. 
Div.  44,  84  N.  Y.  Supp.  712,  affirmed  179 
N.  Y.  235,  72  N.  E.  97,  70  L.  R.  A.  796,  103 
Am.  St.  Rep.  859,  1  Ann.  Cas.  334. 

A  state  law  may  also  prohibit  the  trans- 
portation of  cattle  from  another  state,  ex- 
cept under  certain  conditions  requiring  a 
certificate  of  health  of  such  cattle,  and  it 
is  not  an  interference  with  interstate  com- 
merce; Reid  v.  Colorado,  187  U.  S.  137,  23 
Sup.  Ct  92,  47  L.  Ed.  10S;  St.  Louis  S.  Ry. 
Co.  v.  Smith,  20  Tex.  Civ.  App.  451,  49  S.  W. 
627,  affirmed  Smith  v.  Ry.  Co.,  181  U.  S. 
248,  21  Sup.  Ct.  603,  45  L.  Ed.  847;  and  so 
with  regard  to  sheep;  State  v.  Rasmussen, 
7  Idaho  1,  59  Pac.  933,  52  L.  R.  A.  78,  97 
Am.  St.  Rep.  234,  affirmed  in  Rasmussen 
v.  Idaho,  181  U.  S.  198,  21  Sup.  Ct.  594,  45 
L.  Ed.  820.  Sleeping  car  companies  may 
exclude  from  their  cars  insane  persons  and 
persons  afflicted  with  contagious  or  infec- 
tious diseases ;  Pullman  Car  Co.  v.  Krauss, 
145  Ala.  395,  40  South.  398,  4  L.  R.  A.  (N. 
S.)   103,  8  Ann.  Cas.  218. 

See   Health. 

CONTANGO.  A  double  bargain,  consist- 
of  a  sale  for  cash  of  stock  previously  bought 
which  the  broker  does  not  wish  to  carry, 
and  a  repurchase  for  the  re-settlement  two 
weeks  ahead  of  the  same  stock  at  the  same 
price  as  at  the  sale  plus  interest  accrued  up 
to  the  date  of  that  settlement.  The  rate  of 
interest  is  called  a  "contango"  and  contango 
days  are  the  two  days  during  the  settlement 
when  these  arrangements  are  in  effect. 

C0NTEK  (L.  Fr.).  A  contest,  dispute, 
disturbance,  opposition.     Britt.  c.  42. 

CONTEMPLATION   OF   BANKRUPTCY. 

An  intention  or  expectation  of  breaking  up 
business  or  applying  to  be  decreed  a  bank- 
rupt. Atkinson  v.  Bank,  Crabbe  529,  Fed. 
Cas.  No.  609;  5  B.  &  Ad.  289;  4  Bing.  20; 
McLean  v.  Bank,  3  McLean  587,  Fed.  Cas. 
No.  8,888. 

Contemplation  of  a  state  of  bankruptcy 
or  a  known  insolvency  and  inability  to  carry 
on  business,  and  a  stoppage  of  business. 
Story,  J.,  Hutchins  v.  Taylor,  5  Law  Rep. 
295,  299,  Fed.  Cas.  No.  6,953.  See  Everett 
v.  Stone,  3  Sto.  446,  Fed.  Cas.  No.  4,577. 

Something  more  is  meant  by  the  phrase 
than  the  expectation  of  insolvency;  it  in- 
cludes the  making  provision  against  the  re- 
sults of  it;  Buckingham  v.  McLean,  13  How. 
(U.  S.)  151,  14  L.  Ed.  91;  Heroy  v.  Kerr,  8 
Bosw.  (N.  Y.)  194.  See  Rison  v.  Knapp,  1 
Dill.  186,  Fed.  Cas.  No.  11,861;  Martin  v. 
Toof,  1  Dill.  203,  Fed.  Cas.  No.  9,167. 

A  conveyance  or  sale  of  property  made  in 
contemplation  of  bankruptcy  is  fraudulent 
and  void ;  2  Bla.  Com.  285. 

CONTEMPLATION  OF  INSOLVENCY. 
This  term  means  something  more  than  ex- 


CONTEMPLATION  OF  INSOLVENCY     651 


CONTEMPT 


pectation  of  its  occurrence;  it  must  include 
provision  against  its  results  so  far  as  the 
transferee  is  concerned,  and  that  can  only 
be  where  he  is  already  a  creditor  and  the 
object  is  to  take  his  debt  out  of  the  equal 
ratable  distribution  of  the  assets  of  the  com- 
pany when  insolvent.  Heroy  v.  Kerr,  21 
How.  Pr.  Rep.  (N.  Y.)  409. 

CONTEMPT.  A  wilful  disregard  or  diso- 
bedience of  a  public  authority. 

By  the  constitution  of  the  United  States, 
each  house  of  congress  may  determine  the 
rujes  of  its  proceedings,  punish  its  members 
for  disorderly  behavior,  and,  with  the  con- 
currence of  two-thirds,  expel  a  member. 
The  same  provision  is  substantially  contain- 
ed in  the  constitutions  of  the  several  states. 

The  power  to  make  rules  carries  that  of 
enforcing  them,  and  to  attach  persons  who 
violate  them  and  punish  them  for  contempts; 

I  Kent  236;  State  v.  Matthews,  37  N.  H. 
450 ;  14  East  1.    But  see  4  Moore,  P.  C  03 ; 

II  id.  347.  This  power  of  punishing  for 
contempts  is  confined  to  punishment  during 
the  session  of  the  legislature,  and  cannot 
extend  beyond  it;  Anderson  v.  Dunn,  6 
Wheat.  (U.  S.)  204,  230,  231,  5  L.  Ed.  242; 
Rap.  Contempt  2;  and  it  seems  this  power 
cannot  be  exerted  beyond  imprisonment.  It 
is  often  regulated  by  statute;  II.  S.  R.  S. 
§§  101-103.  The  arrest  of  the  offending 
party  is  made  by  the  sergeant-at-arms,  act- 
ing by  virtue  of  the  speaker's  warrant,  both 
in  England  and  the  United  States ;  Anderson 
v.  Dunn,  6  Wheat.  (U.  S.)  204,  5  L.  Ed. 
242;  10  Q.  B.  359.  The  power  of  congress 
to  punish  for  contempt  must  be  found  in 
some  express  grant  in  the  constitution  or 
be  found  necessary  to  carry  into  effect  such 
powers  as  are  there  granted;  Kilbourn  v. 
Thompson,  103  U.  S.  169,  26  L.  Ed.  377;  U. 
S.  v.  Lee,  106  U.  S.  220,  1  Sup.  Ct.  240,  27 
L.  Ed.  171.       See  Congress. 

Courts  of  justice  have  an  inherent  power 
to  punish  all  persons  for  contempt  of  their 
rules  and  orders,  for  disobedience  of  their 
process,  and  for  disturbing  them  in  their 
proceedings;  S  Co.  38  ft;  State  v.  Matthews, 
37  N.  H.  450;  State  v.  Morrill.  16  Ark.  384; 
Ex  parte  Walker,  29  Ala.  81;  Kx  parte 
Adams,  25  Miss.  883,  59  Am.  Dec.  234;  Clark 
v.  People,  Breese  (111.)  340,  12  Am.  Dec.  178; 
Ex  parte  Terry,  128  U.  S.  289,  9  Sup.  Ct. 
77,  32  L.  Ed.  405;  Bessette  v.  W.  B.  Conkey 
Co.,  194  U.  S.  324,  24  Sup.  Ct.  665,  48  L. 
Ed.  997:  Kregel  v.  Bartling.  23  Neb.  S48, 
37  N.  W.  668;  Matter  of  Moore,  63  N.  C. 
397;  People  v.  Wilson.  64  111.  195,  16  Am. 
Rep.  52S;  Ex  parte  Wright,  65  Ind.  508. 
See  In  re  Savin.  131  D.  S.  267,  9  Sup.  Ct  689, 
33  L.  Ed.  150;  Respublica  v.  Oswald,  1  Dall. 
(U.  S.)  319,  1  I*  Ed.  155;  it  is  said  that  the 
legislature  cannot  restrict  the  power:  Kx 
parte  McCown.  139  N.  C.  95,  51  S.  E.  957,  2 
L.  R.  A.  (N.  S.)  603.  A  court  may  commit 
for  a  period  reaching  beyond  the  term  at 
which  the  contempt  Is  committed ;  Ex  parte 


Maulsby,  13  Md.  642.  The  punishment 
should  not  be  by  piecemeal,  but  must  be 
entire  and  final;  O'Rourke  v.  Cleveland,  49 
N.  J.  Eq.  577,  25  Atl.  367,  31  Am.  St.  Rep. 
719. 

Contempts  of  court  are  of  two  kinds :  such 
as  are  committed  in  the  presence  of  the 
court,  and  which  interrupt  its  proceedings, 
which  may  be  summarily  punished  by  order 
of  the  presiding  ju<iure;  and  constructive 
contempts,  arising  from  a  refusal  to  comply 
with  an  order  of  court;  Androscoggin  &  EL 
R.  Co.  v.  R.  Co.,  49  Me.  392.  In  the  court 
of  chancery  the  failure  or  refusal  to  perform 
an  order  or  decree  is  a  contempt,  and  the 
enforcement  of  such  orders  and  decrees  i- 
by  attachment.  For  an  exhaustive  discus- 
sion of  the  practice  in  such  cases,  see  note 
to  State  v.  Livingston,  4  Del.  Ch.  265. 

A  prosecution  for  contempt  of  court  in 
order  to  compel  obedience  to  an  order  made 
in  a  chancery  proceeding  is  a  civil  action; 
Leopold  v.  People,  140  111.  552,  30  N.  E.  348. 

The  punishment  is  summary  and  general- 
ly immediate  in  contempts  committed  in 
facie  curia;,  and  no  process  or  evidence  is 
necessary ;  In  re  Noonan,  47  Kan.  771,  28 
Pac.  1104;  2  L.  R.  II.  L.  361;  Middlehrook 
v.  State,  43  Conn.  257,  21  Am.  Rep.  650; 
and  a  party  in  contempt  cannot  be  heard 
except  to  purge  himself;  Gross  v.  Clark, 
87  N.  Y.  272. 

In  some  states,  as  in  Pennsylvania,  the 
power  to  punish  for  contempts  is  restricted 
to  offences  committed  by  the  officers  of  the 
court,  or  in  its  presence,  or  in  disobedience 
of  its  mandates,  orders,  or  rules;  but  no  one 
is  guilty  of  a  contempt  for  any  publication 
made  or  act  done  out  of  court  which  is  not 
in  violation  of  such  lawful  rules  or  orders 
or  in  disobedience  of  its  process.  By  Act 
of  Congress,  March  2,  1831,  the  power  in 
the  federal  courts  to  punish  for  contempt 
has  been  limited.  Whether  it  can  be  held 
to  limit  the  authority  of  the  Supreme  Court, 
which  derives  its  existence  and  powers  from 
the  constitution,  may  perhaps  be  a  matter 
of  doubt.  The  power  of  the  circuit  and 
district  courts  can  only  be  exercised  to  en- 
sure order  and  decorum  in  their  presence, 
to  secure  faithfulness  on  the  part  of  their 
officers  in  their  official  transactions,  and  to 
enforce  obedience  to  their  lawful  orders, 
judgments,  and  processes:  Atwell  v.  V.  s.. 
162  Fed.  97,  S9  C.  C.  A.  97.  17  L.  R.  A.  (N. 
S.)  1049,  15  Ann.  Cas.  253.  where  it  was  held 
a  grand  juror  was  not  guilty  of  contempt  for 
violating  his  oath  to  keep  the  counsel  of 
the  United  states.  See  Oswald's  Case,  4 
Lloyd's  Debates  141.  If  a  newspaper  article 
is  per  se  libellous,  making  a  direct  Charge 
against  court  or  jury,  or  admitting  of  but 
one  reasonable  construction  and  requiring  no 
innuendo  to  apply  its  meaning  to  the  court, 
then  the  publisher  cannot  escape  by  denying 
under  oath  that  he  intended  the  plain  mean- 
ing which  the  language  used  conveys;  Allen 


CONTEMPT 


652 


CONTEMPT 


v.  State,  131  Ind.  599,  30  N.  E.  1093.  The 
question  of  contempt  depends  upon  the  act 
and  not  the  intention  of  the  party;  22  W. 
R.  398;  Wartman  v.  Wartman,  Taney  362, 
Fed.  Cas.  No.  17,210;  3  Burr.  1329;  3  O.  B. 
745.  A  publication  in  a  newspaper,  read  by 
the  jurors  and  attendants  of  the  court, 
which  has  a  tendency  to  interfere  with  the 
unbiased  administration  of  the  laws  in  pend- 
ing cases,  may  be  a  contempt;  State  v. 
Judge  of  Civil  District  Court,  45  La.  Ann. 
1250,  14  South.  310,  40  Am.  St.  Rep.  282. 

The  jurisdiction  prescribed  by  congress 
for  federal  courts  gives  no  power  to  punish 
a  newspaper  publisiher  for  contempt  for 
criticising  the  conduct  and  integrity  of  the 
court;  Cuyler  v.  R.  Co.,  131  Fed.  95;  ordi- 
narily, however,  newspapers  can  be  so  pun- 
ished; where  a  statement  of  facts  are  pub- 
lished which  tend  to  influence  a  jury  in  a 
pending  trial  and  such  facts  could  "not  have 
been  shown  in  evidence,  such  publication  is 
a  contempt;  Telegram  Newspaper  Co.  v. 
Com.,  172  Mass.  294,  52  N.  E.  445,  44  L.  R. 
A.  159,  70  Am.  St.  Rep.  2S0;  where  a  news- 
paper article  tends  to  prejudice  the  fair 
trial  of  a  person  who  has  been  accused  but 
has  not  yet  been  committed,  it  is  a  con- 
tempt; 67  J.  P.  421;  even  an  unintentional 
mis-statement  of  the  conclusion  reached  by 
the  court  is  a  contempt;  In  re  Providence 
Journal  Co.,  28  R.  I.  489,  68  Atl.  428,  17 
L.  R.  A.  (N.  S.)  582,  125  Am.  St.  Rep.  755. 
Contempt  is  not  the  proper  remedy  against 
one  who  publishes  a  newspaper  article  re- 
flecting on  the  conduct  of  a  judge  in  the 
performance  of  his  ministerial  duties,  the 
keeping  of  accounts,  fees,  etc.;  Hamma  v. 
People,  42  Colo.  401,  94  Pac.  326,  15  L.  R. 
A.  (N.  S.)  621,  15  Ann.  Cas.  655.  It  is  a 
contempt  to  publish  any  account,  however 
meagre,  and  whether  accurate  or  inaccu- 
rate, of  proceedings  heard  in  camera;  [1894] 
3  Ch.  193. 

Criticism  of  the  manner  in  which  trials 
are  conducted  cannot  be  punished  unless  it 
refers  to  some  particular  case  pending  be- 
fore the  court;  Ex  parte  Green,  46  Tex.  Cr. 
App.  576,  81  S.  W.  723,  66  L.  R.  A.  727,  108 
Am.  St.  Rep.  1035. 

There  may  be  contempt  of  court  by  scan- 
dalizing the  court  itself ;  by  abusing  parties 
concerned  in  causes;  by  prejudicing  man- 
kind against  persons  before  the  cause  is 
heard;  2  Atk.  471;  but  fair  criticism  on  the 
proceedings  of  a  court  when  the  case  is 
over,  can  seldom  be  contempt  of  court; 
[1889]  A.  C.  549.  There  is  no  sedition  in 
just  criticism  on  the  administration  of  the 
law,  but  it  must  be  without  malignity  and 
not  attribute  corrupt  and  malicious  motives ; 
11  Cox  49. 

A  statement  in  a  petition  for  re-hearing 
that  the  court's  ruling  is  all  wrong  and 
written  for  political  reasons  is  a  contempt; 
In  re  Chartz,  29  Nev.  110,  85  Pac.  352,  5  L. 
R.  A.  (N.  S.)  916,  124  Am.  St  Rep.  915 ;  but 


not  to  file  a  motion  suggesting  the  disquali- 
fication of  the  judge  on  the  ground  that  he 
is  related  to  parties  having  an  interest  in 
the  suit;  Johnson  v.  State,  87  Ark.  45,  112 
S.  W.  143,  18  L.  R.  A.  (N.  S.)  619,  15  Ann. 
Cas.  531.  For  a  case  holding  in  contempt 
a  trial  judge  who  had  grossly  attacked  in 
print  an  appellate  court  who  had  twice  re- 
versed his  judgment  in  a  trial  for  rape,  see 
In  re  Fite,  11  Ga.  App.  665,  76  S.  E.  397. 

A  federal  court  may  punish  for  contempt 
one  who  interferes  with  a  receiver  in  bank- 
ruptcy appointed  by  it ;  In  re  Wilk,  155  Fed. 
943;  and  contempts  committed  before  its 
referee;  United  States  v.  Tom  Wah,  160 
Fed.  207;  one  accused  of  contempt  is  not 
entitled  to  a  jury  trial ;  In  re  Fellerman,  149 
Fed.  244;  O'Flynn  v.  State,  89  Miss.  850,  43 
South.  82,  9  L.  R.  A.  (N.  S.)  1119,  119  Am. 
St.  Rep.  727,  11  Ann.  Cas.  530;  a  denial  on 
oath  of  having  committed  a  contempt  raises 
an  issue  of  fact  for  trial;  Emery  v.  State, 
78  Neb.  547,  111  N.  W.  374,  9  L.  R.  A.  (N.  S.) 
1124;  either  a  municipal  or  business  corpo- 
ration may  be  fined  for  contempt  where  its 
officers  and  servants  have  violated  an  in- 
junction; Marson  v.  City  of  Rochester,  112 
App.  Div.  51,  97  N.  Y.  Supp.  S81 ;  Franklin 
Union  No.  4  v.  People,  220  111.  355,  77  N.  E. 
176,  4  L.  R.  A.  (N.  S.)  1001,  110  Am.  St. 
Rep.  248.  A  defendant  in  a  divorce  pro- 
ceeding who  refused  to  pay  alimony  may  be 
punished  by  having  his  answer  stricken  from 
the  record;  Bennett  v.  Bennett,  15  Okl.  286, 
81  Pac.  632,  70  L.  R.  A.  864. 

One  cannot  be  guilty  of  contempt  In  refus- 
ing to  obey  an  order  which  the  court  has  no 
power  to  make;  McHenry  v.  State,  91  Miss. 
562,  44  South.  831.  16  L.  R.  A.  (N.  S.)  1062; 
Ex  parte  Young,  209  U.  S.  123,  28  Sup.  Ct 
441,  52  L.  Ed.  714,  13  L.  R.  A.  (N.  S.)  932, 
14  Ann.  Cas.  764.  A  decree  for  the  payment 
of  money  may  be  enforced  by  contempt  pro- 
ceedings ;  it  is  not  imprisonment  for  debt ; 
Jastram  v.  McAuslan,  29  R.  I.  390,  71  Atl. 
454,  17  Ann.  Cas.  320.  A  decree  that  a  trus- 
tee pay  over  a  specified1  sum  in  trust  funds 
is  enforceable  by  execution  but  not  by  con- 
tempt; Mast  v.  Washtenaw  Circuit  Judge, 
154  Mich.  485,  117  N.  W.  1052.  An  unsuc- 
cessful attempt  to  induce  a  third  person  to 
influence  a  jury  does  not  constitute  a  con- 
tempt; U.  S.  v.  Carroll,  147  Fed.  947;  an 
assault  committed  on  an  attorney  in  a  case 
by  persons  interested  in  the  party  opposed 
to  him  is  a  contempt,  although  committed 
outside  the  court  room;  U.  S.  v.  Barrett,  187 
Fed.  378;  and  so  where  proceedings  in  a 
criminal  case  are  ordered  to  be  stayed,  and 
a  mob,  with  knowledge  of  such  order,  takes 
the  prisoner  from  jail  and  hangs  him;  U. 
S.  v.  Shipp,  203  U.  S.  563,  27  Sup.  Ct.  165, 
51  L.  Ed.  319,  8  Ann.  Cas.  265 ;  id.,  214  U.  S. 
387,  29  Sup.  Ct.  637,  53  L.  Ed.  1041;  a  court 
may  punish  an  attorney  for  contempt  for 
wilfully  absenting  himself  in  a  criminal 
case;  In  re  Clark,  126  Mo.  App.  391,  103  S. 


CONTEMPT 


653 


CONTEMPT 


W.  1105;  In  re  McHugh,  152  Mich.  505,  116 
N.  W.  45© ;  In  re  Clark,  208  Mo.  121,  10G  S. 
W.  900,  15  L.  R.  A.  (N.  S.)  389. 

The  power  of  Inferior  courts  to  punish  for 
contempt  is  usually  restricted  to  contempts 
committed  in  the  presence  of  the  court;  3 
Steph.  Com.  312,  n.  9;  L.  R.  8  Q.  B.  134.  A 
justice  of  the  peace  cannot  punish  con- 
tempts, even  committed  before  him,  by  sum- 
mary proceedings;  Albright  v.  Lapp,  2G  Pa. 
99,  67  Am.  Dec.  402;  nor  a  committing  magis- 
trate for  refusal  to  obey  a  subpoena;  Farn- 
ham  v.  Column,  19  S.  D.  342,  103  N.  W.  161, 
1  L.  R.  A.  (N.  S.)  1135,  117  Am.  St.  Rep. 
944,  9  Ann.  Cas.  314. 

It  is  said  that  it  belongs  exclusively  to 
the  court  offended  to  Judge  of  contempts; 
State  v.  Matthews,  37  N.  H.  450;  State  v. 
McKinnon,  8  Or.  487;  In  re  Pryor,  18  Kan. 
72,  26  Am.  Rep.  752;  In  re  Williamson,  26 
Pa.  9,  67  Am.  Dec.  374;  State  v.  Anderson, 
40  la.  207;  and  no  other  court  or  judge  can 
or  ought  to  undertake,  in  a  collateral  way,  to 
question  or  review  an  adjudication  of  a 
contempt  made  by  another  competent  juris- 
diction;  14  East  1;  Gist  v.  Bowman,  li  Bay 
(S.  C.)  182;  State  v.  Tipton,  1  Blackf.  (Ind.) 
166;  State  v.  White,  T.  U.  P.  Churl t  (Ga.) 
136;  Cossart  v.  State,  14  Ark.  538;  Bunch 
v.  State,  id.  544;  Lockwood  v.  State,  1  Ind. 
161;  Yates  v.  People,  6  Johns.  (N.  Y.)  337; 
Anderson  v.  Dunn,  6  Wheat.  (U.  S.)  204,  5 
L.  Ed.  242;  People  v.  Owens,  8  Utah  20,  2S 
Pac.  871;  Seventy-Six  Land  &  Water  Co.  v. 
Superior  Court,  93  Cal.  139,  28  Pac.  813. 
But  it  has  been  repeatedly  held  that  a  court 
of  superior  jurisdiction  may  review  the  de- 
cision of  one  of  inferior  jurisdiction  on  a 
matter  of  contempt;  Com.  v.  Newton,  1 
Grant,  Cas.  (Pa.)  453;  Ex  parte  Rowe,  7 
Cal.  181;  Baltimore  &  O.  R.  Co.  v.  City  of 
Wheeling,  13  Graft  (Va.)  40;  Patton  v. 
Harris,  15  B.  Mon.  (Ky.)  607 ;  though  not  on 
habeas  corpus;  Jordan  v.  State,  14  Tex.  436; 
see  Ex  parte  Smith,  53  Cal.  204 ;  Shattuck  v. 
State,  51  Miss.  50,  24  Am.  Rep.  024;  see 
Tolman  v.  Jones,  114  111.  147,  28  N.  E.  464. 
It  should  be  by  direct  order  of  the  court; 
Geisse  v.  Beall,  5  Wis.  227.  A  proceeding 
for  contempt  is  regarded  as  a  distinct  and 
independent  suit;  22  E.  L.  &  Eq.  150;  Ex 
parte  Langdon,  25  Yt.  680;  Lyon  v.  Lyon, 
21  Conn.  185;  and  irregularities  in  the  pro- 
ceedings are  immaterial  where  the  result  is 
a  sufficient  purging  of  the  contempt  and  a 
consequent  discharge  of  the  rule;  Martin 
v.  Burgwyn,  88  Ga.  78,  13  S.  E.  958. 

Though  the  same  act  constitute  both  a 
contempt  and  a  crime,  the  contempt  may  be 
tried  and  punished  by  the  court;  U.  S.  v. 
Debs,  64  Fed.  724;  affirmed  by  the  supreme 
court,  which  held  that  it  was  competent  to 
invoke  the  jurisdiction  of  the  courts  to  re- 
move or  restrain  obstructions  to  interstate 
commerce  or  the  mails,  though  the  acts  were 
criminal  in  themselves,  an  injunction  having 
been  served,  the  circuit  court  had  authority 


to  inquire  whether  its  orders  had  been  dis- 
obeyed, and  finding  that  they  had  been,  to 
enter  the  order  uf  punishment,  and  its  find- 
ings as  to  the  act  of  disobedience  are  not 
open  to  review  on  hal  ;>u$  in  the  su- 

preme  court  or  any  other;  In  re  Debs,  158 
U.  S.  564,  15  Sup.  Ct.  900,  39  L.  Ed.   ! 

Proceedings     for     contempt     are     oi 

9,    criminal    or    punitive,    and    civil    or 
remedial.     The    former   vindi 
nity  of  the  courts,  the  latter 
serves,    and   enforces  the    rights   of    private 
parties    and    compels    obedience    to    or 
judgments    and    decrees    made    to    en 
Buch  ri_'iits:     Wasserman  v.  United   States, 
1G1   Fed.  722,   88  C.  C.  A.  5S2;  Garrigan   v. 
U.  S.,  163  Fed.  16,  89  C.  C.  A.  194,  23  L.   R. 
A.    (X.  S.)  1295;  when  contempt  proceeding 
are    brought   to    enforce   a    civil    right,    the 
constitutional  provision  that  no  person  shall 
be  compelled  to   be  a    witness   against   him- 
self does  not  apply,  since  it  is  not  a  criminal 
proceeding;  Patterson  v.  District  Council,  31 
Pa.  Super.  Ct.  112. 

Every  member  of  the  public  "is  bound  to 
observe  the  restrictions  of  an  Injun 
when  known,  to  the  extent  that  he  must  not 
aid  and  abet  its  violation  by  others,"  nor  ob- 
struct the  administration  of  justice;  the 
power  of  the  court  to  proceed  against  one  so 
offending  is  inherent  and  Indisputable;  Gar- 
rigan v.  U.  S.,  163  Fed.  16,  89  C.  C.  A.  494, 
23  L.  R.  A.  (N.  S.)  1295,  citing  [1897]  L.  R. 
1  Ch.  545 ;  In  re  Reese,  107  Fed.  942,  47  C 
C.  A.  S7.  There  is  an  elementary  distinction 
between  disobedience  of  an  injunction  by 
parties  and  privies,  and  the  conduct  of  oth- 
ers in  contempt  of  the  commands  of  the 
courts;  Garrigan  v.  U.  S.,  163  Fed.  16,  S9 
C.  C.  A.  494,  23  L.  R.  A.  (N.  S.)  1295.  Ac- 
tual notice  will  reuder  one  not  a  party  guilty 
of  contempt  in  violating  an  injunction;  it  is 
not  necessary  that  he  should  have  been 
served  with  a  copy  of  the  injunction  decree 
or  the  writ ;  In  re  Lennon,  166  U.  S.  548,  17 
Sup.  Ct.  65S,  41  L.  Ed.  1110;  Aldinger  v. 
Pugh,  132  N.  Y.  403,  30  N.  E.  745.  But  pub- 
lication in  newspapers  and  the  posting  upon 
wagons  of  a  teaming  company  of  an  injunc- 
tion order  forbidding  interference  with  its 
i  cams,  are  not  enough  to  charge  with  knowl- 
edge thereof  one  not  a  party  to  the  proceed- 
ings who  assists  in  a  riot  in  which  the 
teams  are  interfered  with,  such  person  de- 
nying knowledge  and  having  a  presumption 
of  innocence  in  his  favor;  Garrigan  v.  1". 
S.,  163  Fed.  16,  S9  C.  C.  A.  P.M.  23  I..  R.  A. 
(N.  S.)  1295.  But  mere  reading  and  giving 
to  one  not  a  party  a  copy  of  the  decree  con 
slitutes  sufficient  notice  as  a  basis  for  eon- 
tempt  proceedings;  Fowler  v.  Beckmau,  60 
N.  H.  424.  :;0  Atl.  1117. 

Proceedings  for  contempt  against  one  not 
a  party  to  the  cause,  lor  disobedience  of  an 
injunction,  are  criminal  in  their  nature,  and 
the  accused  is  entitled  to  the  presumption  of 
innocence;    they  are  reviewable   by  writ  of 


CONTEMPT 


654 


CONTENTMENT 


error ;  Garrigan  v.  U.  S.,  163  Fed.  16,  89  C. 
C.  A.  494,  23  L.  R.  A.  (N.  S.)  1295,  citing  Bes- 
sette v.  W.  B.  Conkey  Co.,  194  U.  S.  324,  24 
Sup.  Ct.  665,  48  L.  Ed.  997 ;  In  re  Christensen 
Engineering  Co.,  194  U.  S.  458,  24  Sup.  Ct 
729,  48  L.  Ed.  1072. 

A  proceeding  instituted  by  an  aggrieved 
party  to  punish  the  other  party  for  contempt 
for  affirmatively  violating  an  injunction  in 
the  same  action  in  which  the  injunction  was 
issued,  and  praying  for  damages  and  costs,  is 
a  civil  proceeding  in  contempt  df  which  the 
only  punishment  is  by  fine,  measured  by  the 
pecuniary  injury  sustained.  If  the  main  suit 
is  discontinued,  the  contempt  proceedings  fall 
with  it,  but  in  such  case  the  court  may  in- 
stitute proceedings  to  vindicate  its  author- 
ity ;  Gompers  v.  Range  Co.,  221  U.  S.  418,  31 
Sup.  Ct.  492,  55  L.  Ed.  797,  34  L.  R.  A.  (N. 
S.)  874. 

For  a  contempt  out  of  the  view  and  hear- 
ing of  the  court,  the  offending  party  will  be 
allowed  to  answer  and  offer  evidence  in  de- 
fence of  the  charge;  Hohenadel  v.  Steele, 
237  111.  229,  S6  N.  E.  717.  At  common  law 
the  sworn  answer  of  one  charged  with  con- 
tempt was  conclusive  and  discharged  the  con- 
tempt;  Coleman  v.  State,  121  Tenn.  1,  113 
S.  W.  1045;  Baird  v.  People,  134  111.  App. 
433. 

Where  a  defendant  violates  an  injunction 
pending  an  appeal,  the  appellate  court  is  the 
proper  tribunal  to  punish  the  contempt;  Me- 
nuez  v.  Candy  Co.,  77  Ohio  386,  83  N.  E.  82, 
11  Ann.  Cas.  1037;  an  order  punishing  con- 
tempt, made  in  the  progress  of  a  case  not 
criminal,  is  interlocutory  and  can  only  be 
reviewed  on  appeal  from  final  decree ;  Doyle 
v.  Guarantee  &  Ace.  Co.,  204  U.  S.  599,  27 
Sup.  Ct.  313,  51  L.  Ed.  641;  In  re  Christen- 
sen Engineering  Co.,  194  U.  S.  458,  24  Sup. 
Ct.  729,  48  L.  Ed.  1072. 

See  20  Am.  Law  Reg.  N.  S.  81,  where  the 
subject  is  treated  at  length;  Rapalje,  Con- 
tempt ;    Judge. 

As  to  proceedings  to  compel  payment  of 
alimony,  see  Staples  v.  Staples,  87  Wis.  592, 
58  N.  W.  1036,  24  L.  R.  A.  433. 

C0NTEMPT1BILITER  (L.  Lat  contemp- 
tuously). In  Old  English  Law.  Contempt, 
contempts.    Fleta,  lib.  2,  c.  60,  §  35. 

CONTENEMENTUM.  See  Wainagium  ; 
Contentment. 

CONTENTIOUS  JURISDICTION.  In  Ec- 
clesiastical Law.  That  which  exists  in  cases 
where  there  is  an  action  or  judicial  process 
and  matter  in  dispute  is  to  be  heard  and 
determined  between  party  and  party.  It  is 
to  be  distinguished  from  voluntary  jurisdic- 
tion, which  exists  in  cases  of  taking  probate 
of  wills,  granting  letters  of  administration, 
and  the  like.    3  Bla.  Com.  66. 

CONTENTMENT  (or,  more  properly,  con- 
tenement;  L.  Lat.  contenementum).  A  man's 
countenance  or  credit,  which  he  has  together 


with,  and  by  reason  of,  his  freehold ;  or  that 
which  is  necessary  for  the  support  and  main- 
tenance of  men,  agreeably  to  their  several 
qualities  or  states  of  life.  Cowell;  4  Bla. 
Com.  379. 

CONTENTS.  The  contents  of  a  note  are 
the  sum  it  shows  to  be  due;  Sere  v.  Pitot, 
6  Cra.  (U.  S.)  332,  3  L.  Ed.  240;  Corbin  v. 
Black  Hawk  County,  105  U.  S.  659,  26  L.  Ed. 
1136;  of  a  chose  in  action  are  the  rights 
created  by  it;  id. 

CONTENTS  AND  N  0T-C0NTENTS.  The 
"contents"  are.  those  who,  in  the  house  of 
lords,  express  assent  to  a  bill;  the  "not-"  or 
"non-contents,"  dissent.    May,  P.  L.  c.  12,  357. 

CONTENTS  UNKNOWN.  A  phrase  con- 
tained in  a  bill  of  lading,  denoting  that  the 
goods  are  shipped  in  apparently  good  condi- 
tion. Clark  v.  Barnwell,  12  How.  (U.  S.)  273, 
13  L.  Ed.  985. 

C0NTESTATI0  LITIS.  In  Civil  Law. 
The  statement  and  answer  of  the  plaintiff 
and  defendant,  thus  bringing  the  case  before 
the  judge,  conducted  usually  in  the  presence 
of  witnesses.    Calvinus,  Lex. 

This  sense  is  retained  in  the  canon  law.  1  Kaufm. 
Mackeldey,  C.  L.  205.  A  cause  is  said  to  be  contestata 
when  the  judge  begins  to  hear  the  cause  after  an 
account  of  the  claims,  given  not  through  pleadings, 
but  by  statement  of  the  plaintiff  and  answer  of  the 
defendant.     Calvinus,   Lex. 

In  Old  English  Law.  Coming  to  an  issue; 
the  issue  so  produced.  Steph.  PI.  App.  n.  39 ; 
Crabb,  Hist.  216. 

CONTESTED  ELECTION.  This  phrase 
has  no  technical  or  legally  defined  meaning. 
An  election  may  be  said  to  be  contested 
whenever  an  objection  is  formally  urged 
against  it,  which,  if  found  to  be  true  in  fact, 
would  invalidate  it  This  must  be  true  both 
as  to  objection  founded  upon  some  consti- 
tutional provision,  as  well  as  upon  any  mere 
statutory  enactment;  Robertson  v.  State, 
109  Ind.  116,  10  N.  E.  582,  643. 

CONTEXT.  Those  parts  of  a  writing 
which  precede  and  follow  a  phrase  or  pas- 
sage in  question ;   the  connection. 

It  is  a  general  principle  of  legal  interpretation 
that  a  passage  or  phrase  is  not  to  be  understood  ab- 
solutely as  if  it  stood  by  itself,  but  is  to  be  read  in 
the  light  of  the  context,  i.  e.  in  its  connection  with 
the  general  composition  of  the  instrument.  The 
rule  is  frequently  stated  to  be  that  where  there  is 
any  obscurity  in  a  passage  the  context  is  to  be  con- 
sidered ;  but  the  true  rule  is  much  broader.  It  is 
always  proper  to  look  at  the  context  in  the  applica- 
tion of  the  most  ambiguous  expression.  Thus,  if  on 
a  sale  of  goods  the  vendor  should  give  a  written  re- 
ceipt acknowledging  payment  of  the  price,  and  con- 
taining, also,  a  promise  not  to  deliver  the  goods,  the 
word  "not"  would  be  rejected  by  the  court,  because 
it  is  repugnant  to  the  context.  It  not  unfrequently 
happens  that  two  provisions  of  an  instrument  are 
conflicting:  each  is  then  the  context  of  the  other, 
and  they  are  to  be  taken  together  and  so  understood 
as  to  harmonize  with  each  other  so  far  as  may  be, 
and  to  carry  out  the  general  intent  of  the  instru- 
ment. In  the  context  of  a  will,  that  which  follows 
controls  that  which  precedes ;  and  the  same  rule 
has  been  asserted  with  reference  to  statutes.  See 
Construction;    Interpretation;    Statutes. 


CONTIGUOUS 


655 


CONTINGENT  LEGACY 


CONTIGUOUS.  In  close  proximity,  in  ac- 
tual close  contact  Arkell  v.  Ins.  Co.,  GO  N. 
Y.  191,  25  Am.  Rep.  1G8 ;  as,  contiguous  pro- 
prietors are  those  whose  lauds  actually  touch. 
Vicinal  are  not  necessarily  contiguous  pro- 
prietors; Raxedale  v.  Seip,  32  La.  Ann.  4:;5. 
In  an  ordinance  relating  to  excavations 
and  the  preservation  of  contiguous  struc- 
tures, it  contemplates  nearness  of  a  struc- 
ture, but  with  Intervening  space;  Baxter  v. 
Realty  Co.,  128  App.  Div.  79,  112  N.  Y.  Supp. 
455. 

CONTINGENCY.  The  quality  of  being 
contingent  or  casual ;  the  possibility  of  com- 
ing to  pass;  an  event  which  may  occur. 
Webster. 

It  is  a  fortuitous  event  which  conies  with- 
out design,  foresight,  or  expectation.  Peo- 
ple v.  Village  of  Yonkers,  39  Barb.  (N.  Y.) 
272. 

CONTINGENCY  WITH  DOUBLE  AS- 
PECT. If  there  are  remainders  so  limited 
that  the  second  is  a  substitute  for  the  first 
in  case  it  should  fail,  and  not  in  derogation 
of  it,  the  remainder  is  said  to  be  in  a  con- 
tingency with  double  aspect  Fearne,  Rem. 
373 ;   1  Steph.  Com.  328. 

CONTINGENT.  When  applied  to  a  use, 
remainder,  devise,  bequest,  or  other  legal 
right  or  interest,  it  means  that  no  present 
interest  exists,  and  that  whether  such  inter- 
est or  right  ever  will  exist,  depends  upon  a 
future  uncertain  event  The  legal  definition 
of  the  word  concurs  with  its  ordinary  ac- 
ceptation in  showing  that  the  term  contin- 
gent implies  a  possibility ;  Jemison  v.  Blow- 
ers, 5  Barb.  (N.  Y.)  692. 

CONTINGENT  DAMAGES.  Those  given 
where  the  issues  upon  counts  to  which  no 
demurrer  has  been  filed  are  tried,  before  de- 
murrer to  one  or  more  counts  in  the  same 
declaration  has  been  decided.     1  Stra.  431. 

Inaccurately  used  to  describe  consequen- 
tial damages,  g.  v. 

CONTINGENT  ESTATE.  A  contingent 
estate  depends  for  its  effect  upon  an  event 
which  may  or  may  not  happen:  as,  an  estate 
limited  to  a  person  not  in  esse,  or  not  yet 
born.     Crabb,  It.  P.  §  916. 

CONTINGENT    FEES.     See  Champerty. 

CONTINGENT  INTEREST  IN  PERSON- 
AL PROPERTY.  It  may  be  defined  as  a  fu- 
ture interest  not  transmissible  to  the  repre- 
sentatives of  the  party  entitled  thereto,  in 
case  he  dies  before  it  vests  in  possession. 
Thus,  if  a  testator  leaves  the  income  of  a 
fund  to  his  wife  for  life,  and  the  capital  of 
the  fund  to  be  distributed  among  such  of 
his  children  as  shall  be  living  at  her  death, 
the  interest  of  each  child  during  the  widows 
lifetime  is  contingent,  and  in  case  of  his 
death  is  not  transmissible  to  his  representa- 
tives.   Moz.  &  W.  Law  Diet 

CONTINGENT   LEGACY.     A  legacy  made 


dependent    upon    some   uncertain    event      1 
Rop.  I^eg.  506.     Beach,  Wills  408. 

A  legacy  which  has  not  vested.    Wins.  Ex. 
1229. 

CONTINGENT    REMAINDER.      An   estate 
in  remainder  which  is  limited  to  tal 

to  a  dubious  and  uncertain  person,  or 
upon  a  dubious  and  uncertain  event,  by 
which  no  present  or  particular  I 
es  to  the  remainderman,  so  thai  the  partic- 
ular estate  may  chance  to  be  determined  and 
the  remainder  never  take  effect.  2  Bla.  Com. 
169. 

A  remainder  limited  so  as  to  depend  upon 
an  event  or  condition  which  may  never  hap- 
pen or  be  performed,  or  which  may  not  hap- 
pen or  be  performed  till  after  the  determina- 
tion of  the  preceding  estate.  Fearne,  Cont 
Rem.  3;  2  Washb.  R.  P.  224,  See  L'Btour- 
neau  v.  Henquenet,  89  Mich.  428,  50  N.  W. 
l<>77.  28  Am.  St.  Rep.  310;  Maguire  v.  Moore, 
L08  Mo.  267,  18  S.  W.  897;  Trine  v.  Hub- 
hard,  152  Pa.  IS,  25  Atl.  231;  [1892]  1  Q.  B. 
184;  Remaindbb;  30  Harv.  L.  Rev.  192; 
Dawson  v.  Lancaster,  28  Pa.  Co.  Ct.  R.  657  : 
Fisher  v.  Wagner,  109  Md.  243,  71  Atl.  999, 
21  L.  R,  A.  (N.  S.)  12L 

CONTINGENT  USE.  A  use  limited  in  a 
deed  or  conveyance  of  land  which  may  or  may 
not  happen  to  vest,  according  to  the  contin- 
gency expressed  in  the  limitation  of  such  use. 
Such  a  use  as  by  possibility  may  happen 
in  possession,  reversion,  or  remainder.  1  Co. 
121;  Com.  Dig.  Uses  (K,  6).  A  use  limited 
to  take  effect  upon  the  happening  of  some 
future  contingent  event ;  as,  where  lands  are 
conveyed  to  the  use  of  A  and  B  after  a  mar- 
riage had  between  them.    2  Bla.  Com.  334. 

A  contingent  remainder  limited  by  way  of 
uses.     Sugd.  Uses  175.     See  4  Kent  237. 

CONTINUAL  CLAIM.  A  formal  claim 
made  once  a  year  to  lands  or  tenements  of 
which  we  cannot,  without  danger,  attempt  to 
take  possession.  It  had  the  same  effect  as 
a  legal  entry,  and  thus  saved  the  right  of 
entry  to  the  heir.  Cowell ;  2  Bla.  Com.  316; 
3  id.  175.  This  effect  of  a  continual  claim  is 
abolished  by  stat  3  &  4  Will.  IV.  c.  27,  §  11. 
1  Steph.  Com.  509. 

CONTINUANCE.  The  adjournment  of  a 
cause  from  one  day  to  another  of  the  same 
or  a  subsequent  term. 

The  postponement  of  the  trial  of  a  cause. 
In  the  ancient  practice,  continuances  were  entered 
upon  the  record,  and  a  variety  of  forms  adapted  to 
the  different  stages  of  the  suit  were  in  use.  See  1 
Chit.  PI.  455;  3  Bla.  Com.  316.  The  object  of  the 
continuance  was  to  secure  the  further  attendance 
of  the  defendant,  who  having  once  attended  could 
not  be  required  to  attend  again,  unless  a  day  was 
fixed.  The  entry  of  continuance  became  at  the 
time  mere  matter  of  form,  and  is  now  discontinued 
in  England  and  most  of  the  states  of  the  United 
States. 

Before  the  declaration,  continuance  Is  by  dies 
datus  prcce  partium;  after  the  declaration,  and  be- 
fore issue  joined,  by  imparlance ;  after  issue  Joined, 
and  before  verdict,  by  vice-comes  non  misit  breve; 
and   after   verdict  or  demurrer,   by   curia   advisare 


CONTINUANCE 


656 


CONTINUANCE 


vult.  1  Chit.  PI.  455,  749;  Bac.  Abr.  Pleas  (P),  Trial 
(H);  Com.  Dig.  Pleader  (V);  Steph.  PI.  64.  In  its 
modern  use  the  word  has  the  second  of  the  two 
meanings  given  above. 


Among  the  causes  for  granting  a  continu- 
ance  are    absence    of    a    material   witness; 
Steinnietz  v.  Currie,  1  Dall.  (U.  S.)  270,  1  L. 
Ed.  132;    Higginbothani  v.  Chamberlayne,  4 
Munf.  (Va.)  547 ;    Eads  v.  State,  26  Tex.  App. 
69,  9  S.  W.  68;    Carter  v.  Wharton,  82  Va. 
264 ;  but  he  must  have  been  subpoenaed ;  Bone 
v.  Hillen,  1  Mill,  Const.  (S.  C.)  198 ;    Parker 
v.  Leman,  10  Tex.  116;    Wright  v.  State,  18 
Ga.  383;    in  many  states  the  opposite  party 
may  prevent  it  by  admitting  that  certain  facts 
would  be  proved  by  such  witness;  Smith  v. 
Creason's  Ex'rs,  5  Dana   (Ky.)   298,  30  Am. 
Dec.  688 ;  Willis  v.  People,  1  Scam.  (111.)  399 ; 
Dominges   v.    State,   7   Smedes  &  M.   (Miss.) 
475,  45  Am.  Dec.  315;   Nave  v.  Horton,  9  Ind. 
563  ;  Keith  v.  Knoche,  43  111.  App.  161 ;   State 
v.  Hatfield,  72  Mo.  518 ;    and  the  party  ask- 
ing delay  is  usually  required  to  make  affi- 
davit as  to  the  facts  on  which  he  grounds  his 
request;  Rhea  v.  State,  10  Yerg.  (Tenn.)  25S; 
Vickers  v.  Hill,  1  Scam.  (111.)  307;    Phillips 
v.  Reardon,  7  Ark.  256;    People  v.  Baker,  1 
Cal.  403;     Smith  v.  Barker,  3  Day    (Conn.) 
2S0,  Fed.  Cas.  No.  13,012;    Ralston  v.  Loth- 
ain,  18  Ind.  303;   and,  in  some  states,  as  to 
what  he   expects  to  prove  by  the  witness; 
Nash  v.  Upper  Appomattox  Co.,  5  Gratt.  (Va.) 
332;    Bailey  v.  Hardy,  12  111.  459;    Sledman 
v.  Hamilton,  4  McLean  538,   Fed.  Cas.   No. 
13,343;     Merchant   v.   Bowyer,   3   Tex.    Civ. 
App.  367,  22  S.  W.  763 ;   if  the  opposing  coun- 
sel   stipulates    that   the   witness,    if    called, 
would  so  testify,  a  continuance  is  refused. 
In  other  states,  an  examination  is  made  by 
the  court;    Harris  v.  Harris,  2  Leigh   (Va.) 
584;    Irroy  v.  Nathan,  4  E.  D.  Sm.  (N.  Y.) 
68 ;  as  to  what  diligence  was  used  to  procure 
his  presence;    St.   Louis  &  K.   C.   R.  Co.  v. 
Olive,  40  111.  App.  82;    Weeks  v.   State,  31 
Miss.  490 ;  Fiott  v.  Com.,  12  Gratt.  (Va.)  564 ; 
and  it  is  error  to  grant  a   continuance  on 
oral  statement  of  counsel;    Whaley  v.  King, 
92  Cal.  431,  28  Pac.  579;    the  court  is  not 
bound  to  grant  it  where  it  is  altogether  con- 
jectural whether  the.  witnesses  are  alive,  and" 
if  so  where  they  reside  or  if  their  evidence 
can  be  procured;    Lowenstein  v.   Greve,  50 
Minn.  383,  52  N.  W.  964;    or  to  examine  a 
witness  not  summoned ;    Soper  v.   Manning, 
158  Mass.  381,  33  N.  E.  516;   inability  to  ob- 
tain the  evidence  of  a   witness   out  of  the 
state  in  season  for  trial,  in  some  cases;    U. 
S.  v.  Duane,  1  Wall.  Sr.  5,  Fed.  Cas.  No.  14,- 
996;    Marsh  v.  Hulbert,  4  McLean  364,  Fed. 
Cas.    No.   9,116 ;    filing   amendments   to    the 
pleadings    which    introduce   new    matter    of 
substance;    Tourtelot  v.  Tourtelot,  4  Mass. 
506;    Jones  v.  Talbot,  4  Mo.  279;    Taylor  v. 
Heffner,  4  Blackf.   (Ind.)  387;    filing  a   bill 
of    discovery    in    chancery    in    some   cases; 
Ridgely  v.  Campbell,  1  Har.  &  J.  (Md.)  452 ; 
Hurst  y.  Hurst,  3  Dall.  (Pa.)  512,  Fed.  Cas. 


No.  6,929,  1  L.  Ed.  700;  detention  of  a  par- 
ty in  the  public  service;  Republica  v.  Mat- 
lack,  2  Dall.  (Pa.)  108,  1  L.  Ed.  310;  see 
Nones  v.  Edsall,  1  Wall.  Jr.  189,  Fed.  Cas. 
No.  10,290 ;  illness  of  counsel,  sometimes ; 
Shultz  v.  Moore,  1  McLean  334,  Fed.  Cas. 
No.  12,825;  Rhode  Island  v.  Massachusetts, 
11  Pet.  (U.  S.)  226,  9  L.  Ed.  697;  State  v. 
Adams,  5  Harring.  (Del.)  107;  Thompson 
v.  Thornton,  41  Cal.  626;  Brady  v.  Malone, 
4  la.  146;  Printup  v.  Mitchell,  19  Ga.  586; 
or  surprise  from  unexpected  testimony ; 
Branch  v.  Du  Bose,  55  Ga.  21;  Childs  v. 
State,  10  Tex.  App.  183.  But  it  is  not  suffi- 
cient where  it  is  not  shown  that  the  client's 
case  is  prejudiced  thereby ;  Board  of  Com'rs 
of  Tipton  County  v.  Brown,  4  Ind.  App.  288, 
30  N.  E.  925. 

The  request  must  be  made  in  due  season ; 
Woods  v.  Young,  4  Cra.  (U.  S.)  237,  2  L.  Ed. 
607;    McCourry  v.  Doremus,  10  N.  J.  L.  245; 
Clinton  v.  Hopkins,  2  Root  (Conn.)  25 ;  Smith 
v.  Holebrook,  id.  45 ;    Hanna  v.  McKenzie,  5 
B.  Monr.  (Ky.)  314,  43  Am.  Dec.  122.     It  is 
addressed    to    the    discretion   of   the   court; 
Fiott  v.  Com.,  12  Gratt.  (Va.)  564 ;  Scogin  v. 
Hudspeth,  3  Mo.  123;    Farrand  v.  Bouchell, 
Harp.   (S.  C.)  85;    Justrobe  v.   Price,  Harp. 
(S.  C.)  112;    Sheppard  v.  Lark,  2  Bailey  (S. 
C.)  576;    Cornelius  v.  Boucher,  Breese  (111.) 
32;    Cox  v.  Hart,  145  U.  S.  376,  12  Sup.  Ct. 
962,  36  L.  Ed.  741 ;    Smith  v.  Collins,  94  Ala. 
394,  10  South.  334;    Baumberger  v.  Arff,  96 
Cal.  261,  31  Pac.  53;   Wilkowski  v.  Halle,  37 
Ga.  678,  95  Am.  Dec.  374 ;    Armour  &  Co.  v. 
Kollmeyer,  161  Fed.  78,  88  C.  C.  A.  242;  16 
L.  R.  A.  (N.  S.)  1110;    without  appeal;  Hill 
v.  Bishop,  2  Ala.  320;    Babcock  v.  Scott,  1 
How.  (Miss.)  100 ;    State  v.  Duncan,  28  N.  C. 
98;   Magruder  v.  Snapp,  9  Ark.  108;    Porter 
v.    Lee,   16   Pa.  412;     Simms  v.   Hundley,   6 
How.  (U.   S.)  1,  12  L.  Ed.  319;    and  is  not 
reviewable  on  error ;    Cox  v.  Hart,  145  U.  S. 
376,  12  Sup.  Ct.  962,  36  L.  Ed.  741;   Woods  v. 
Young,  4  Cra.  (U.  S.)  237,  2  L.  Ed.  607 ;    Van- 
guilder  v.  Stull,  10  N.  J.  L.  235 ;   but  an  im- 
proper and  unjust  abuse  of  such  discretion 
may  be  remedied  by  superior  courts,  in  va- 
rious  ways.      See   Vanblaricum   v.    Ward,   1 
Blackf.  (Ind.)  50;    Fuller  v.  State,  1  Blackf. 
(Ind.)  64;    Fox  v.  Govan,  4  Hen.  &  M.  (Va.) 
157;    Reynard  v.  Brecknell,  4  Pick.  (Mass.) 
302 ;    Sealy  v.  State,  1  Ga.  213,  44  Am.  Dec. 
641;     McDaniel    v.    State,    8    Smedes   &    M. 
(Miss.)  401,  47  Am.  Dec.  93 ;   Darne  v.  Broad- 
water, 9  Mo.  19 ;  Hipp  v.  Bissell,  3  Tex.  18 ; 
Cole  v.  Choteau,  18  111.  439;    People  v.  Ver- 
milyea,  7   Cow.   (N.   Y.)   369;    Davis  &  Ran- 
kin Bldg.  &  Mfg.  Co.  v.  Butter  &  Cheese  Co., 
84  Wis.  262,  54  N.  W.  506;    Isaacs  v.  U.  S., 
159  U.  S.  487,  16  Sup.  Ct.  51,  40  L.  Ed.  229; 
Valdes  v.  Central  Altagracia,  225  U.   S.  58, 
32  Sup.  Ct.  664,  56  L.  Ed.  980. 


C0NTINUAND0  (Lat.  continuare,  to  con- 
tinue). An  averment  that  a  trespass  has 
been  continued  during  a  number  of  days.    3 


CONTINUANDO 


657 


CONTRA 


Bla.  Com.  212.  It  was  allowed,  to  prevent  a 
multiplicity  of  actions;  2  Rolle,  Abr.  545; 
only  where  the  injury  was  such  as  could, 
from  its  nature,  be  continued;  1  Wms. 
Saund.  24,  n.  1. 

The  form  is  now  disused,  and  the  same 
end  secured  by  alleging  divers  trespasses  to 
have  been  committed  between  certain  days. 
1  Saund.  24,  n.  1.  See  Gould,  PL  c.  3,  §  86 ; 
Hamm.  N.  P.  90,  91;  Bac.  Abr.  Trespass,  I, 
2,  n.  2. 


CONTINUING      CONSIDERATION. 

Consideration. 


See 


CONTINUING    DAMAGES.     See  Measure 
of  Damages. 

CONTINUING  OFFENCE.  When  an  of- 
fence consumes  a  great  length  of  time  in  its 
perpetration,  the  question  often  arises  wheth- 
er it  is  but  a  single  offence  or  whether  it  can 
be  split  into  a  number  of  indictments.  The 
test  is  that,  if  the  transaction  is  set  in  motion 
by  a  single  impulse  and  operated  upon  by  a 
single  uninteriuitteut  force,  it  forms  a  con- 
tinuous act,  and  hence  must  be  treated  as 
one;  Whart.  Cr.  Law  (10th  ed.)  §§  27,  931. 
Thus  gas  fraudulently  drawn  from  a  main 
pipe  for  a  great  space  of  time  constitutes  but 
one  offence ;  L.  R.  1  C.  C.  172 ;  articles  remov- 
ed at  intervals  a  few  minutes  apart  but  by 
one  impulse ;  4  C.  &  P.  217,  386 ;  or  when  a 
shaft  of  coal  is  opened  and  quarried,  if  there 
be  but  one  tapping  of  the  vein,  though  it  con- 
tinue several  years;  2  C.  &  P.  705.  Nuisanc- 
es, though  usually  continuous  offences,  may 
be  the  object  of  successive  prosecutions,  If 
distinct  impulses  are  given  at  intermittent 
times.  The  test  is  whether  the  individual 
acts  are  prohibited  or  the  course  of  action 
which  they  constitute ;  Whart.  Cr.  Law  § 
27.  Cohabitation  with  more  than  one  wo- 
man for  a  period  of  time  constitutes  but  one 
offence  under  the  act  of  congress  of  March 
22,  1882;  In  re  Snow,  120  U.  S.  274,  7  Sup. 
Ct.  556,  30  L.  Ed.  658. 

The  offence  of  receiving  a  rebate  under 
the  Elkins  act  is  the  transaction  thai  the 
given  rebate  consummates,  and  not  the  units 
of  measurement  of  the  physical  thing  trans- 
ported; Standard  Oil  Co.  of  Indiana  v.  U. 
S.,  164  Fed.  376,  90  C.  C.  A.  364;  as  to 
interstate  merchandise,  it  is  a  single  con- 
tinuing offence,  continuously  committed  in 
each  district  through  which  it  is  conducted; 
Armour  Packing  Co.  v.  U.  S.,  209  U.  S.  56, 
28  Sup.  CL  42S,  52  L.  Ed.  681. 

CONTINUOUS  EASEMENTS.  Basements 
of  which  the  enjoyment  is  or  may  be  con- 
tinual, without  the  necessity  of  any  actual 
interference  by  man,  as  a  waterspout  or  a 
right  of  light  or  air.  Washb.  Easem.  21.  See 
Easements. 

C0NTI0NES.      General    meetings    of    the 
Roman  people.     Launspach,  State  and  Fam- 
ily in  Early  Rome  69. 
Bouv.-42 


CONTRA  (I>at.).  Over;  against;  opposite. 
Against;   otherwi  ed.    After  stating  a 

rule  of  law,  if  it  be  followed  by  contra,  and 
the  citation  of  other  cases,  that 

the  latter  hold  a  contrary  view.     It  is  equiv- 
alent to  alitcr.    Per  contra.     In  opposition. 

CONTRA  BONOS  MORES.  Against  sound 
morals. 

Contracts   which    are    incentive   to    ffl 
or  of  which  the  consideration  is  an  ol 
tion  or  engagement  improperly  prejndii 
the  feelings  of  a  third  party,  of  to  de- 

cency  or  morality,  or  which  has  a  tend 
to   mischievous  or  pernicious  consequ* 
are   void,   as   being    contra    bonos    inures;    2 
Wils.  447;   Cowp.  729:   4  Campb.  152;    1  B.  & 
Aid.  683 ;    16  East  150. 

CONTRA  F0RMAM  STATUTI  (Lat.  against 
the  form  of  the  statute).  The  formal  man- 
ner of  alleging  that  the  offence  described  in 
an  indictment  is  one  forbidden  by  statute. 

When  one  statute  prohibits  a  thing  and 
another  gives  the  penalty,  in  an  action  for 
the  penalty  the  declaration  should  conclude 
contra  formam  statutorum ;  Plowd.  206;  2 
East  333.  The  same  rule  applies  to  informa- 
tions and  indictments;  2  Hale,  PL  Cr.  172. 
But  where  a  statute  refers  to  a  former  one, 
and  adopts  and  continues  the  provisions  of 
it,  the  declaration  or  indictment  should  con- 
clude contra  formam  statuti;  Hale,  PL  Or. 
172.  Where  a  thing  is  prohibited  by  several 
statutes,  if  one  only  gives  the  action  and 
the  others  are  explanatory  and  restrictive, 
the  conclusion  should  be  contra  formam  sta- 
tuti;  2  Saund.  377. 

When  the  act  prohibited  was  not  an  of- 
fence or  ground  of  action  at  common  law,  it 
is  necessary  both  in  criminal  and  civil  • 
to  conclude  against  the  form  of  the  statute 
or  statutes;  1  Saund.  135c;  1  Chit.  PL  556; 
Com.  v.  Inhabitants  of  Stockbridge,  11  Mass. 
280;  Cross  v.  U.  S.,  1  Gall.  30,  Fed.  Cas.  No. 
3,434. 

But  if  the  act  prohibited  by  the  statute  is 
an  offence  or  ground  of  action  at  common 
law,  the  indictment  or  action  may  be  in  the 
common-law  form,  and  the  statute  need  not 
be  noticed  even  though  it  prescribe  a  form 
of  prosecution  or  of  action, — the  statute  rem- 
edy being  merely  cumulative;  Co.  2d  Inst. 
200;  2  Burr.  803;  3  id.  1418;  4  id.  2351; 
2  Wils.  146 ;   Com.  v.  Hoxey,  10  Mass.  3S5. 

When  a  statute  only  indicts  a  punish- 
ment on  that  which  was  an  offence  at  com- 
mon law,  the  punishment  prescribed  may 
be  inflicted  though  the  statute  is  not  noticed 
in  the  indictment;  Oom.  v.  Searle,  2  Binu. 
(Pa.)  332,  4  Am.  Dec.  44G. 

If  an  indictment  for  an  offence  at  com- 
mon law  only  conclude  '"against  the  form 
of  the  statute  in  such  case  made  and  pro- 
vided;" or  "the  form  of  the  statute"  gen- 
erally, the  conclusion  will  be  rejected  as  sur- 
plusage, and  the  indictment  maintained  as  at 


CONTRA  FORMAM  STATUTI 


658 


CONTRABAND  OF  WAR 


common  law;  1  Saund.  135  n.  3;  Com.  v. 
Hoxey,  16  Mass.  385;  Com.  v.  Shattuck,  4 
Cush.  (Mass.)  143.  But  it  will  be  otherwise 
if  it  conclude  against  the  form  of  "the  stat- 
ute aforesaid,"  when  a  statute  has  been  pre- 
viously recited ;  1  Chit.  Cr.  L.  2S9.  See,  fur- 
ther, Com.  Dig.  Pleader  (C,)  76;  5  Viner, 
Abr.  552,  556 ;  Cross  v.  U.  S.,  1  Gall.  26,  Fed. 
Cas.  No.  3,434;  Sears  v.  U.  S.,  1  Gall.  257, 
Fed.  Cas.  No.  12,592 ;  Scroter  v.  Harrington, 
8  N.  C.  192;  Town  of  Barkhamsted  v.  Par- 
sons, 3  Conn.  1;  Com.  v.  Inhabitants  of 
Stockbridge,  11  Mass.  2S0 ;  Barter  v.  Martin, 
5  Greenl.  (Me.)  79. 

CONTRA  PACEM  (Lat.  against  the  peace). 
In  Pleading.  An  allegation  in  an  action  of 
trespass  or  ejectment  that  the  actions  there- 
in complained  of  were  against  the  peace  of 
the  king.  Such  an  allegation  was  formerly 
necessary,  but  has  become  a  mere  matter  of 
form  and  not  traversable.  See  4  Term  503 ; 
1  Chit.  PL  163,  402;  Arch.  Civ.  PL  155; 
Trespass. 

CONTRABAND  OF  WAR.  In  Internation- 
al Law.  Goods  which  neutrals  may  not  car- 
ry in  time  of  war  to  either  of  the  belligerent 
nations  without  subjecting  themselves  to  the 
loss  of  the  goods,  and  formerly  the  owners, 
also,  to  the  loss  of  the  ship  and  other  cargo, 
if  intercepted.  1  Kent  138,  143.  See  Elrod 
v.  Alexander,  4  Heisk.  (Tenn.)  345.  Food  (8 
Am.  Lawy.  108). 

Provisions  may  be  contraband  of  war,  and 
generally  all  articles  calculated  to  be  of  di- 
rect use  in  aiding  the  belligerent  powers  to 
carry  on  the  war ;  and  if  the  use  is  doubt- 
ful, the  mere  fact  of  a  hostile  destination 
renders  the  goods  contraband;  1  Kent  140; 
Hall,  Int.  L.  618. 

The  classification  of  goods  made  by  Eng- 
lish and  American  courts  divides  all  mer- 
chandise into  three  classes:  (1)  Articles  man- 
ufactured and  primarily  or  ordinarily  used 
for  military  purposes  in  time  of  war ;  (2) 
articles  which  may  be  and  are  used  for  war 
or  peace  according  to  circumstances;  (3)  ar- 
ticles exclusively  used  for  peaceful  purposes. 
Articles  of  the  first  class  destined  to  a  bel- 
ligerent country  are  always  contraband;  ar- 
ticles of  the  second  class  are  so  only  when 
actually  destined  to  the  military  or  naval  use 
of  the  belligerent ;  articles  of  the  third  class 
are  not  contraband,  though  liable  to  seizure 
for  violation  of  blockade  or  siege. 

The  Declaration  of  London  (q.  v.)  introduc- 
es a  new  division  of  contraband.  Certain 
specified  articles,  such  as  arms,  ammunition, 
and  other  articles  of  direct  use  in  military 
and  naval  operations,  are  arranged  under  the 
head  of  "Absolute  Contraband"  and  are  lia- 
ble to  capture  if  destined  to  territory  be- 
longing to,  or  occupied  by,  the  enemy,  or  to 
the  armed  forces  of  the  enemy.  Other  speci- 
fied articles,  such  as  foodstuffs,  clothing, 
bullion,  railroad  material,  fuel,  etc.,  are  clas- 
sified under  the  name  of  "Conditional  Con- 


traband," and  are  liable  to  capture  if  des- 
tined for  the  use  of  the  armed  forces  or  of 
a  government  department  of  the  enemy  state. 
Certain  other  articles,  such  as  cotton,  wool, 
rubber,  metallic  ores,  and  industrial  machin- 
ery, are  expressly  declared  not  to  be  con- 
traband of  war. 

In  the  case  of  absolute  contraband  it  is 
immaterial,  according  to  the  Declaration  of 
London,  whether  the  carriage  of  the  goods  is 
direct,  or  entails  trans-shipment  or  a  subse- 
quent transport  by  land.  This  is  but  a  re- 
statement of  the  existing  English  and  Ameri- 
can rule.  On  the  other  hand,  conditional 
contraband  is  not  liable  to  capture  under  the 
above  circumstances,  so  that  the  doctrine  of 
"Continuous  Voyage"  does  not  apply  in  this 
case.  By  analogy  with  the  right  exercised 
by  a  belligerent  of  preventing  contraband 
trade,  a  belligerent  is  allowed  to  prevent 
neutral  ships  from  carrying  dispatches  or 
officers  for  the  other  belligerent.  The  Dec- 
laration of  London  lays  down  definite  rules 
upon  this  subject  under  the  title  of  "Unneu- 
tral service"  {q.  v.). 

A  belligerent  may,  by  force,  prevent  a 
neutral  ship  from  carrying  dispatches  or  of- 
ficers for  the  other  belligerent,  by  analogy 
to  the  law  of  contraband.  Probably  a  mere 
common  carrier  receiving  persons  in  the  serv- 
ice of  a  belligerent  would  not  be  subject  to 
any  penalty,  therefore,  if  they  took  passage 
in  the  ordinary  course  of  business;  Hall 
Int.  Law  673,  approved  in  L.  R.  1  K.  B. 
(1908). 

C0NTRACAUSAT0R.  A  criminal;  one 
prosecuted  for  a   crime.     Wharton. 

CONTRACT  (Lat.  contractus,  from  con, 
with,  and  traho,  to  draw.  Contractus  ultro 
ut rogue  obligatio  est  qua-m  Grasci  awaX?uiyfia 
vocant.    Fr.  contrat). 

An  agreement  between  two  or  more  par- 
ties to  do  or  not  to  do  a  particular  thing. 
Taney,  C.  J.,  Charles  River  Bridge  v.  War- 
ren Bridge,  11  Pet.  (U.  S.)  420,  572,  9  L.  Ed. 
773.  An  agreement  in  which  a  party  under- 
takes to  do  or  not  to  do  a  particular  thing. 
Marshall,  C.  J.,  Sturges  v.  Crowninshield,  4 
Wheat.  (U.  S.)  197,  4  L.  Ed.  529.  An  agree- 
ment between  two  or  more  parties  for  the 
doing  or  not  doing  of  some  specified  thing.  1 
Pars.  Com.  5. 

It  has  been  also  defined  as  follows:  A  compact 
between  two  or  more  parties.  Fletcher  v.  Peck,  6 
Cra.  (U.  S.)  87,  136,  3  L.  Ed.  162.  An  agreement  or 
covenant  between  two  or  more  persons,  in  which 
each  party  binds  himself  to  do  or  forbear  some  act, 
and  each  acquires  a  right  to  what  the  other  prom- 
ises. Encyc.  Amer.  ;  Webster.  A  contract  or  agree- 
ment is  where  a  promise  is  made  on  one  side  and 
assented  to  on  the  other  ;  or  where  two  or  more 
persons  enter  into  an  engagement  with  each  other 
by  a  promise  on  either  side.  2  Steph.  Com.  108,  109. 
An  agreement  upon  sufficient  consideration  to  do 
or  not  to  do  a  particular  thing.  2  Bla.  Com.  446 ; 
2   Kent   449. 

A    covenant    or    agreement    between    two    parties 
with  a  lawful  consideration  or  cause.     West,   Sym- 
bol, lib.  1,  §  10;    Cowell;    Blount. 
A  deliberate  engagement  between  competent  par- 


CONTRACT 


659 


CONTRACT 


ties  upon  a  legal  consideration  to  do  or  to  abstain 
from  doing  some  act.     Story,  Contr.  §  1. 

An  agreement  by  which  two  parties  reciprocally 
promise  and  engage,  or  one  of  them  singly  promises 
and  engages  to  the  other,  to  give  some  particular 
thing  or  to  do  or  abstain  from  doing  some  partic- 
ular act.  Pothier,  Conts.  Pt  I.  c.  1,  I  1;  3G  Ch.  D. 
695. 

A  mutual  promise  upon  lawful  consideration  or 
cause  which  binds  the  parties  to  a  performance. 
The  writing  which  contains  the  agreement  of  par- 
ties with  the  terms  and  conditions,  and  which  serves 
as  a  proof  of  the  obligation.  The  last  is  a  distinct 
signification.  Pierson  v.  Townsend,  2  Hill  (N.  Y.) 
651. 

A  voluntary  and  lawful  agreement  by  competent 
parties,  for  a  good  consideration,  to  do  or  not  to  do 
a  specified  thing.  Robinson  v.  Magee,  9  Cal.  83, 
70  Am.   Dec.   G^8. 

An  agreement  enforceable  at  law,  made  between 
two  or  more  persons,  by  which  rights  are  acquired 
by  one  or  both  to  acts  or  forbearances  on  the  part 
of  the  other.     Anson,  Contr.  9. 

A  learned  writer  has  said,  in  discussing  the  prop- 
er definition  of  contract,  that  "if  we  seek  to  build 
up  a  definition  of  the  term  'contract'  which  shall  in- 
clude all  things  that  have  been  called  contracts  and 
shall  exclude  all  things  that  have  been  held  not  to 
be  contracts,  the  task  is  evidently  impossible.  .  .  . 
Any  definition  of  contract  therefore  must  be  either 
arbitrary  or  inexact."     Hariiman,  Contr.  4. 

The  consideration  is  not  properly  included  In  the 
definition  of  contract,  because  it  does  not  seem  to 
be  essential  to  a  contract,  although  it  may  be  neces- 
sary to  its  enforcement.  See  Consideration  ;  1 
Pars.   Contr.  7. 

Mr.  Stephen,  whose  definition  of  contract  Is  given 
above,  thus  criticizes  the  definition  of  Blackstone, 
which  has  been  adopted  by  Chancellor  Kent  and 
other  high  authorities.  First  that  the  word  agree- 
ment itself  requires  definition  as  much  as  contract. 
Second,  that  the  existence  of  a  consideration,  though 
essential  to  the  validity  of  a  parol  contract,  forms 
properly  no  part  of  the  idea.  Third,  that  the  defini- 
tion takes  no  sufficient  notice  of  the  mutuality 
which  properly  distinguishes  a  contract  from  a 
promise.     2  Steph.  Com.  109. 

The  use  of  the  word  agreement  (aggregatio  men- 
Hum)  seems  to  have  the  authority  of  the  best  wrlt- 
•  ers  in  ancient  and  modern  times  (see  above)  as 
a  part  of  the  definition,  of  contract.  It  Is  probably 
a  translation  of  the  civil-law  conventio  (con  and 
venio),  a  coming  together,  to  which  (being  derived 
from  ad  and  grex)  it  seems  nearly  equivalent.  We 
do  not  think  the  objection  that  It  is  a  synonym  (or 
nearly  so)  a  valid  one.  Some  word  of  the  kind  Is 
necessary  as  a  basis  of  the  definition.  No  two 
synonyms  convey  precisely  the  same  idea.  "Most 
of  them  have  minute  distinctions,"  says  Reld,  If 
two  are  entirely  equivalent,  it  will  soon  be  deter- 
mined by  accident  which  shall  remain  in  use  and 
which  become  obsolete.  To  one  who  has  no  knowl- 
edge of  a  language,  it  Is  impossible  to  define  any 
abstract  Idea.  But  to  one  who  understands  a  lan- 
guage, an  abstraction  is  defined  by  a  synonym  prop- 
erly qualified.  By  pointing  out  distinctions  and  the 
mutual  relations  between  synonyms,  the  object  of 
definition  Is  answered.  Hence  we  do  not  think 
Blackstone's  definition  open  to  the  first  objection. 

As  to  the  idea  of  consideration,  Mr.  Stephen  seems 
correct  and  to  have  the  authority  of  some  of  the  first 
legal  minds  of  modern  times.  Consideration,  how- 
ever, may  be  necessary  to  enforce  a  contract,  though 
not  essential  to  the  idea.  Even  In  that  class  of  con- 
tracts (by  specialty)  in  which  no  consideration  Is  In 
fact  required,  one  Is  said  to  be  always  presumed 
in  law,— the  form  of  the  instrument  being  held  to 
import  a  consideration.  2  Kent  450,  n.  But  see 
Consideration,  where  the  subject  is  more  fully 
treated. 

The  third  objection  of  Mr.  Stephen  to  the  defini- 
tion of  Blackstone  does  not  seem  one  to  which  it  Is 
fairly  open.  There  is  an  Idea  of  mutuality  in  con 
and  traho,  to  draw  together,  and  it  would  seem  that 
mutuality  Is  Implied  in  agreement  as  well.  An 
aggregatio  mentium  6eems  Impossible  without  mutu- 


ality. Blackstone  In  his  analysis  appears  to  have 
regarded  agreement  as  implying  mutuality  ;  for  he 
defines  it  (2  Bla.  Com.  442)  "a  mutual  bargain  or 
convention."  In  the  above  definition,  however,  all 
ambiguity  is  avoided  by  the  use  of  the  words  "be- 
tween  two    or   more   parties"    following    agreement. 

In  its  widest  sense,  "contract"  Includes  records 
•laities  (but  see  infra)',  but  this  use  as  a 
general  term  for  all  sorts  of  obligations,  though  of 
too  great  authority  to  be  now  doubted,  seems  to  be 
an  undue  extension  of  the  proper  meaning  of  the 
term,  which  is  much  more  nearly  equivalent  to 
"agreement"  which  Is  never  applied  to  specialties. 
Mutuality  is  of  the  very  essence  of  both,— not  only 
mutuality  of  assent,  but  of  act.  As  expresi 
Lord  Coke,  Actus  contra  actum;  2  Co.  15;  7  M.  & 
G.  998,  argument  and  note. 

This  is  illustrated  in  contracts  of  sale,  bailment, 
hire,  as  well  as  partnership  and  marriage;  and  no 
other  engagements  but  those  with  this  kind  of  mu- 
tuality would  seem  properly  to  come  under  the 
head  of  contracts.  In  a  bond  there  Is  none  of  this 
mutuality, — no  act  to  be  done  by  the  obligee  to 
make  the  instrument  binding.  In  a  judgment  there 
is  no  mutuality  either  of  act  or  of  assent.  It  is 
judicium  redditum  in  invitum.  It  may  properly  be 
denied  to  be  a  cpntract,  though  Blackstone  insists 
that  one  Is  implied.  Per  Mansfield,  3  Burr.  1545 ; 
Wynian  v.  Mitchell,  1  Cow.  (N.  Y.)  316;  per  Story. 
J.,  Bullard  v.  Bell,  1  Mas.  288,  Fed.  Cas.  No.  i.i.l. 
Chitty  uses  "obligation"  as  an  alternative  word  of 
description  when  speaking  of  bonds  and  Judgments. 
Chit.  Con.  2,  4.  An  act  of  legislature  may  be  a  con- 
tract; so  may  a  legislative  grant  with  exemption 
from  taxes;  Matheuy  v.  Golden,  6  Ohio  St.  3C1. 
So  a  charter  is  a  contract  between  a  state  and  a  cor- 
poration within  the  meaning  of  the  constitution  of 
the  United  States,  art.  1,  §  10,  clause  1 ;  Dart- 
mouth College  v.  Woodward.  4  Wheat.  (U.  S.)  518, 
4  L.  Ed.  629.  Contract  is  used  in  the  United  States 
constitution  in  its  ordinary  sense  as  signifying  the 
agreement  of  two  or  more  minds,  from  considera- 
tions proceeding  from  one  to  the  other,  to  do,  or 
not  to  do,  certain  acts.  Mutual  assent  to  its  terms 
is  of  its  very  essence;  it  does  not  extend  to  a  judg- 
ment against  a  city  for  damages  suffered  from  a 
mob  (given  by  statute)  ;  Louisiana  v.  New  Orleans, 
109  U.   S.  288,  3  Sup.   Ct.  211,  27  L   Ed.   936. 

At  common  law,  contracts  have  been  di- 
vided ordinarily  into  contracts  of  record, 
contracts  by  specialty,  and  simple  or  parol 
contracts.  The  latter  may  be  either  written 
(not  sealed)  or  verbal;  and  they  may  also 
be  express  or  implied.  Implied  contracts 
may  be  either  implied  in  law  or  Implied  in 
fact.  "The  only  difference  between  an  ex- 
press contract  and  one  implied  in  fact  is  in 
the  mode  of  substantiating  it.  An  express 
agreement  is  proved  by  express  words,  writ- 
ten or  spoken  .  .  .  ;  an  implied  e 
ment  is  proved  by  circumstantial  evidence 
showing  that  the  parties  intended  to  con- 
tract;" Leake,  Contr.  11;  1  B.  &  Ad.  415;  1 
Aust.  Jur.  356,  377. 

Accessory  contracts  are  those  made  for  as- 
suring the  performance  of  a  prior  contract. 
either  by  the  same  parties  or  by  others,  SUCb 
as  suretyship,  mortgage,  and  pledges,  Louisi- 
ana Code,  art.  17G4 ;  Poth.  Obi.  pt  1,  c,  1,  s.  1, 
art.  2,  n.  14. 

Bilateral  contracts  are  those  in  which  a 
promise  is  given  in  consideration  of  a  prom- 
ise.   Parsons,  Contr.  464. 

Contracts  of  beneficence  are  those  by 
which  only  one  of  the  contracting  parties 
is  benefited:  as,  loans,  deposit,  and  man- 
date.    Louisiana  Code,  art.  17G7. 


CONTRACT 


660 


CONTRACT 


Certain  contracts  are  those  in  which  the 
thing  to  be  done  is  supposed  to  depend  on 
the  will  of  the  party,  or  when,  in  the  usual 
course  of  events,  it  must  happen  in  the  man- 
ner stipulated. 

Commutative  contracts  are  those  in  which 
what  is  done,  given,  or  promised  by  one  par- 
ty is  considered  as  an  equivalent  to  or  in 
consideration  of  what  is  done,  given,  or 
promised  by  the  other.  Louisiana  Code,  art. 
1761. 

Consensual  contracts  were  contracts  of 
agency,  partnership,  sale,  and  hiring  in  the 
Roman  law,  in  which  a  contract  arose  from 
the  mere  consensus  of  the  parties  without 
other  formalities.     Maine,  Anc."  Law  243. 

Entire  contracts  are  those  the  considera- 
tion of  which  is  entire  on  both  sides. 

Executed  contracts  are  those  in  which 
nothing  remains  to  be  done  by  either  party, 
and  where  the  transaction  has  been  com- 
pleted, or  was  completed  at  the  time  the 
contract  or  agreement  was  made :  as,  where 
an  article  is  sold  and  delivered  and  payment 
therefor  is  made  on  the  spot 

Executory  contracts  are  those  in  which 
some  act  remains  to  be  done :  as,  when  an 
agreement  is  made  to  build  a  house  in  sis 
months ;  to  do  an  act  before  some  future 
day ;  to  lend  money  upon  a  certain  interest 
payable  at  a  future  time.  Fletcher  v.  Peck, 
6  Cra.  (U.  S.)  87,  136,  3  L.  Ed.  162. 

A  contract  executed  (which  differs  in  nothing 
from  a  grant)  transfers  a  chose  in  possession ;  a 
contract  executory  transfers  a  chose  in  action.  2 
Bla.  Com.  443.  As  to  the  importance  of  grants  con- 
sidered as  contracts,  see  Impaieing  the  Obligation 
of  Contracts. 

Express  contracts  are  those  in  which  the 
terms  of  the  contract  or  agreement  are  open- 
ly and  fully  uttered  and  avowed  at  the  time 
of  making:  as,  to  pay  a  stated  price  for 
certain  specified  goods;  to  deliver  an  ox,  etc. 
2  Bla.  Com.  443. 

Gratuitous  contracts  are  those  of  which 
the  object  is  the  benefit  of  the  person  with 
whom  it  is  made,  without  any  profit  or  ad- 
vantage received  or  promised  as  a  considera- 
tion for  it.  It  is  not,  however,  the  less 
gratuitous  if  it  proceed  either  from  gratitude 
for  a  benefit  before  received  or  from  the 
hope  of  receiving  one  hereafter,  although 
such  benefit  be  of  a  pecuniary  nature.  Loui- 
siana Code,  art  1766.  Gratuitous  promises 
are  not  binding  at  common  law  unless  ex- 
ecuted with  certain  formalities,  viz.,  by  ex- 
ecution under  seal. 

Illegal  contracts  are  agreements  to  do  acts 
prohibited  by  law,  as  to  commit  a  crime;  to 
injure  another,  as  to  publish  a  libel.  H.  & 
N.  73. 

Hazardous  contracts  are  those  in  which 
the  performance  of  that  which  is  one  of  its 
objects  depends  on  an  uncertain  event. 
Louisiana  Code,  art  1769. 

Implied  contracts  may  be  either  implied 
in  law  or  in  fact.    A  contract  implied  in  law 


arises  where  some  pecuniary  inequality  ex- 
ists in  one  party  relatively  to  the  other 
which  justice  requires  should  be  compensat- 
ed, and  upon  which  the  law  operates  by  cre- 
ating a  debt  to  the  amount  of  the  required 
compensation ;  Leake,  Contr.  38.  See  2  Burr. 
1005;  11  L.  J.  C.  P.  99;  8  C.  B.  541.  The 
case  of  the  defendant  obtaining  the  plaintiff's 
money  or  goods  by  fraud,  or  duress,  shows 
an  implied  contract  to  pay  the  money  or  the 
value  of  the  goods. 

A  contract  implied  in  fact  arises  where 
there  was  not  an  express  contract,  but  there 
is  circumstantial  evidence  showing  that  the 
parties  did  intend  to  make  a  contract;  for 
instance,  if  one  orders  goods  of  a  tradesman 
or  employs  a  man  to  work  for  him,  without 
stipulating  the  price  or  wages,  the  law  raises 
an  implied  contract  (in  fact)  to  pay  the 
value  of  the  goods  or  services.  In  the  for- 
mer class,  the  implied  contract  is  a  pure  fic- 
tion, having  no  real  existence;  in  the  latter, 
it  is  inferred  as  an  actual  fact  See  Leake, 
Contr.  12. 

Independent  contracts  are  those  in  which 
the  mutual  acts  or  promises  have  no  relation 
to  each  other  either  as  equivalents  or  as 
considerations.     Louisiana    Code,    art.    1762. 

Mixed  contracts  are  those  by  which  one 
of  the  parties  confers  a  benefit  on  the  other, 
receiving  something  of  inferior  value  in  re- 
turn, such  as  a  donation  subject  to  a  charge. 

Contracts  of  mutual  interest  are  such  as 
are  entered  into  for  the  reciprocal  interest 
and  utility  of  each  of  the  parties :  as  sales, 
exchange,  partnership,  and  the  like. 

Onerous  contracts  are  those  in  which 
something  is  given  or  promised  as  a  consid- 
eration for  the  engagement  or  gift,  or  some ' 
service,  interest,  or  condition  is  imposed  on 
what  is  given  or  promised,  although  unequal 
to  it  in  value. 

Oral  contracts  are  simple  contracts. 

Principal  contracts  are  those  entered  into 
by  both  parties  on  their  own  accounts,  or  in 
the  several  qualities  or  characters  they  as- 
sume. 

Real  contracts  are  those  in  which  it  is 
necessary  that  there  should  be  something 
more  than  mere  consent,  such  as  a  loan  of 
money,  deposit,  or  pledge,  which,  from  their 
nature,  require  a  delivery  of  the  thing  (res). 

Reciprocal  contracts  are  those  by  which 
the  parties  expressly  enter  into  mutual  en- 
gagements, such  as  sale,  hire,  and  the  like. 

Contracts  of  record  are  those  which  are 
evidenced  by  matter  of  record,  such  as  judg- 
ments,  recognizances,  and  statutes  staple. 

These  have  been  said  to  be  the  highest  class  of 
contracts.  Statutes,  merchant  and  staple,  and  other 
securities  of  the  like  nature,  are  confined  to  Eng- 
land. They  are  contracts  entered  into  by  the  inter- 
vention of  some  public  authority,  and  are  witnessed 
by  the  highest  kind  of  evidence,  viz.,  matter  of 
record;    Poll.  Contr.  141;    4  Bla.  Com.  465. 

Severable  (or  separable)  contracts  ar« 
those   the    considerations  of    which   are    by 


CONTRACT 


6G1 


CONTRACT 


their  terms  susceptible  of  apportionment  or 
division  on  either  side,  so  as  to  correspond 
to  the  several  parts  or  portions  of  the  con- 
sideration on  the  other  side. 

A  contract  to  pay  a  person  the  worth  of  hla  serv- 
ices as  long  as  he  will  do  certain  work,  or  so  much 
per  week  as  long  as  he  shall  work,  or  to  give  a  cer- 
tain price  per  bushel  for  every  bushel  of  so  much 
corn  as  corresponds  to  a  sample,  would  be  a  sever- 
able contract.  If  the  part  to  be  performed  by  one 
party  consists  of  several  distinct  and  separate  Items, 
and  the  price  to  be  paid  by  the  other  is  apportioned 
to  each  item  to  be  performed,  or  is  left  to  be  Im- 
plied by  law,  such  a  contract  will  generally  be  held 
to  be  severable.  So  when  the  price  to  be  paid  is 
clearly  and  distinctly  apportioned  to  different  parts 
of  what  Is  to  be  performed,  although  the  latter  is 
in  its  nature  Bingle  and  entire.  But  the  mere  fact 
of  sale  by  weight  or  measure — i.  e.  so  much  per 
pound  or  bushel — does  not  make  a  contract  sever- 
able. 

Simple  contracts  are  those  not  of  specialty 
or  record. 

They  are  the  lowest  class  of  express  contracts, 
and  answer  most  nearly  to  our  general  definition 
of  contract. 

To  constitute  a  sufficient  parol  agreement  to  be 
binding  in  law,  there  must  be  that  reciprocal  and 
mutual  assent  which  is  necessary  to  all  contracts. 
They  are  by  parol  (which  includes  both  oral  and 
written).  The  only  distinction  between  oral  and 
written  contracts  is  in  their  mode  of  proof.  And  it 
is  inaccurate  to  distinguish  verbal  from  u 
for  contracts  are  equally  verbal  whether  the  words 
are  written  or  spoken, — the  meaning  of  verbal  being 
ssed  in  words.  See  3  Burr.  1670;  7  Terra  350, 
note  ;  Stackpole  v.  Arnold,  11  Mass.  27,  6  Am.  Dec. 
150;  Cook  v.  Bradley,  7  Conn.  57,  18  Am.  Dec.  79; 
Union  Turnpike  Co.  v.  Jenkins,  1  Caines  (N.  Y.)  385. 

Specialties  are  those  which  are  under  seal; 
as,  deeds  and  bonds. 

Specialties  are  sometimes  said  to  include  also  con- 
tracts of  record;  1  Pars.  Contr.  7;  in  which  case 
there  would  be  but  two  classes  at  common  law,  viz., 
specialties  and  simple  contracts.  The  term  special- 
ty   is   always  used   substantively. 

They  are  the  second  kind  of  express  contracts 
under  the  ordinary  common-law  division.  They  are 
not  merely  written,  but  signed,  sealed,  and  delivered 
by  the  party  bound.  The  solemnities  connected 
with  these  acts,  and  the  formalities  of  witnessing, 
gave  in  early  times  an  importance  and  character  to 
this  class  of  contracts  which  implied  so  much  cau- 
tion and  deliberation  (consideration)  that  it  was  un- 
necessary to  prove  the  consideration  even  In  a  court 
of  equity;  Plowd.  305;  7  Term  477;  4  B.  &  Ad.  652; 
3  Biugh.  Ill;  1  Fonb.  Eq.  342,  note.  Though  little 
of  the  real  solemnity  now  remains,  and  a  scroll  Is 
substituted  in  most  of  the  states  for  the  seal,  the 
distinction  with  regard  to  specialties  has  still  been 
preserved  intact  except  when  abolished  by  statute. 
In  Ortman  v.  Dixon,  13  Cal,  33,  it  is  said  that  the 
distinction  is  now  unmeaning  and  not  sustained  by 
reason.     See  Consideration;    Seal. 

When  a  contract  by  specialty  is  changed  by  a 
parol  agreement,  the  whole  contract  becomes  parol ; 
Vicary  v.  Moore,  2  Watts  (Pa.)  451,  27  Am.  Dec.  323; 
Munroe  v.  Perkins,  9  Pick.  (Mass.)  298,  20  Am.  Dec. 
475  ;     Delacroix   v.   Bulkley,  13  Wend.    (N.   Y.)  71. 

Unilateral  contracts  are  those  in  which 
the  party  to  whom  the  engagement  is  made 
makes  no  express  agreement  on  his  part. 

They  are  so  called  even  in  cases  where  the  law 
attaches  certain  obligations  to  his  acceptance.  Lou- 
isiana Code,  art.  1758.  A  loan  for  use  and  a  loan 
of  money  are  of  this  kind.  Poth.  Obi.  pt.  1,  c.  1  s 
1.  art.  2. 

Verbal  contracts  are  simple  contracts. 


Writtm  contract*  are  those  evidenced  by 
writing. 

Pothier's  treatise  on  Obligations,  taken  in  con- 
nection with  the  Civil  Code  of  Louisiana,  gives  an 
idea  of  the  divisions  of  the  civil  law.  Poth.  Obi. 
pt.  1,  c.  1,  s.  1,  art.  2,  makes  the  Ave  following  class- 
es: reciprocal  and  unU  uri  and  real; 
those  of  mutual  interest,  of 

pal  and  accessory;    those  Khali   are  BU 
by    the    civil    law   to  certain    rules;   and    I 
those  which  are  regulated  by  mere  natural  Justice. 

It  Is  true  that  almost  all  the  rights  of  r" 
property  do  in  great  measure  depend  upon  con 
of  one  kind  or  other,  or  at  least  might  be  r 

<>f  them;    which  is  the  method  taken  by 
the  civil   law;     it  has   referred  the  greatest  part  of 
the  duties  and  rights  of  which  It  treats  to  ti. 
of  obligations   ex  contractu  or  quasi   ex  contractu. 
Inst.  3.  14.  2  ;    2  Bla.  Com.  443. 

Quasircontracta.  The  usual  classifii 
of  contracts  is  objected  to  by  Prof.  ! 
in  his  law  of  Quasi-Contracts.     A  true 

tract  exists,  lie  say-,  because  the  contract- 
ing party  has  willed,  in  circumstances  t" 
which  the  law  attaches  the  sanction  of  an 
obligation,  that  he  shall  he  bound.    His 

tract  may  he  implied  in  fact,  or  express. 
Which  of  the  two  it  is,  is  purely  a  qui 
of  t lie  kind  of  evidence  used  to  establish  the 
contract.  In  either  case  the  source  of  the 
Obligation  is  the  intention  of  the  party. 
"Contract  implied  in  law"  is,  however,  a 
term  used  to  cover  a  class  of  obligations, 
where  the  law,  though  the  defendant  did  not 
intend  to  assume  an  obligation,  imposes  an 
obligation  upon  him,  notwithstanding  the  ab- 
sence of  intention  on  his  part,  and.  in  many 
cases,  in  spite  of  his  actual  dissent.  Such 
contracts,  according  to  the  work  cited,  may 
be  termed  quasi-contracts,  and  are  not  true 
contracts.     They  are  founded  generally : — 

1.  T'pon  a  record. 

2.  "Upon  statutory,  official,  or  customary 
duties. 

3.  Upon  the  doctrine  that  no  one  shall  be 
allowed  to  enrich  himself  unjustly  at  the 
expense  of  another.  The  latter  is  the  most 
Important  and  most  numerous  class.  See 
also  Ans.  Cmitr.  6th  ed.  7;  2  Harv.  I.  K. 
64;  Louisiana  v.  New  Orleans,  109  U.  S.  285, 
3  Sup.  Ct.  211,  27  L.  Ed.  936. 

A  claim  for  half-pilotage  fees  under  a  stat- 
ute allowing  such  fees,  where  a  pilot's  serv- 
ices are  offered  and  declined,  is  an  Instance 
of  a  quasi-contract  of  the  second  class;  Pa- 
cific -Mail  S.  S.  Co.  v.  JolilVe.  2  Wall.  (U.  S.) 
450,  17  L.  Ed.  805.  See  also  Milford  v.  Com., 
144  Mass.  64,  ION.  E.  516.  Prof.  Keener,  in 
his  work  above  cited,  considers  the  duty  of  a 
carrier  to  receive  and  carry  safely  as  being 
of  a  quasi-contractual  nature.  Among. the 
third  class  are  also  cases  of  the  liability  of 
a  husband  to  pay  for  necessaries  furnished 
to  his  wife:  of  a  father  for  those  furnished 
to  his  child.  Also  cases  of  actions  to  n 
money  paid  under  a  mistake:  actions  in  as- 
sumpsit against  a  tort-feasor,  where  the  tort 
is  waived;  actions  to  recover  compensation 
for  benefits  received  under  a  contract  which 
the  plaintiff  cannot  enforce  because  he  has 


CONTRACT 


662 


CONTRACT 


failed  to  comply  with  the  conditions  thereof ; 
actions  for  benefits  conferred  by  the  plain- 
tiff under  a  contract  which  the  defendant, 
by  reason  of  the  statute  of  frauds,  illegality, 
impossibility,  etc.,  is  not  bound  to  perform; 
actions  for  benefits  conferred  on  the  defend- 
ant at  his  request,  but  in  the  absence  of  a 
contract;  actions  for  benefits  intentionally 
conferred,  but  without  the  defendant's  re- 
quest; actions  for  money  paid  to  the  use  of 
the  defendant;  and  actions  for  money  paid 
under  compulsion  of  law  and  money  paid  to 
the  defendant  under  duress,  legal  or  equita- 
ble. These  are  the  general  classes  given  in 
Keener,  Quasi-Contracts,  to  which  reference 
is  made,  passim.  The  question  to  be  deter- 
mined is  not  the  defendant's  intention,  but 
what  in  equity  and  good  conscience  the  de- 
fendant ought  to  do.  The  action  of  indebi- 
tatus assumpsit  was  extended  to  most  cases 
of  quasi-contracts ;  Harriman,  Contr.  24 ;.  2 
Harv.  L.  Rev.  63.  The  settled  tendency  of 
English  and  American  law  is  toward  a  new 
classification  of  contracts  and  the  treatment 
of  implied  contracts  upon  the  lines  here  in- 
dicated. They  are  lines  clearly  defined  in 
the  Roman  law  as  shown  by  Maine  (Anc. 
Law,  3d.  Am.  ed.  332),  who  is  extensively 
quoted  by  Keener.  See  Contractual  Obli- 
gation; Woodward,  Quasi-Contracts. 

Negotiations  preceding  a  contract.  Where 
there  is  an  agreement  between  parties  to  en- 
ter into  a  contract  in  the  future,  and  any 
essential  part  of  the  contract  is  left  open, 
the  agreement  does  not  constitute  a  contract 
in  itself ;  Sibley  v.  Felton,  156  Mass.  273,  31 
N.  E.  10.  Such  is  the  case  also  if  the  agree- 
ment itself  shows  that  it  was  not  intended  to 
bind  the  parties,  but  that  a  formal  contract 
was  to  be  executed ;  Eads  v.  City  of  Caronde- 
let,  42  Mo.  113;  70  L.  T.  781.  But  a  mere 
reference  to  a  contract  to  be  drawn  up  in 
the  future  is  not  conclusive  that  the  parties 
are  not  bound  by  their  original  agreement, 
though  it  tends  to  show  that  such  is  the 
case;  Allen  v.  Chouteau,  102  Mo.  309,  14  S. 
W.  869;  L.  R.  18  Eq.  180.  The  question  is 
one  of  intention  to  be  gathered  from  the 
original  agreement,  in  view  of  all  the  cir- 
cumstances ;  Sanders  v.  Fruit  Co.,  144  N.  Y. 
209,  39  N.  E.  75,  29  L.  R.  A.  431,  43  Am.  St. 
Rep.   757;   Harriman,   Contr.   52. 

Where  negotiations  are  made  "subject  to 
the  preparation  and  approval"  or  "comple- 
tion of  a  formal  contract,"  they  do  not  con- 
stitute a  binding  contract,  whether  the  con- 
dition is  expressed  in  the  offer ;  [1895]  2  Ch. 
1844;  or  in  the  acceptance;  7  Ch.  D.  29; 
but  "the  mere  reference  to  a  future  con- 
tract is  not  enough  to  negative  the  exist- 
ence of  a  present  one ;"  8  Ch.  D.  70.  Where 
a  baker  sold,  and  a  company  bought  a  shop, 
and  the  contract  seemed  complete  in  two 
letters,  but  afterward  the  company  wrote 
a  third  letter  introducing  a  new  and  vital 
term,  viz.,  a  restriction  upon  the  baker's 
trading  in  the  district,  it  was  held  that  the 


three  letters  read  together  negatived  the 
idea  that  the  two  letters  constituted  the  con- 
tract ;  42  Ch.  D.  616.  Where  the  acceptance 
was  "subject  to  the  title  being  approved  by 
our  solicitor"  it  was  held,  that  this  meant 
no  more  than  the  liberty  which  every  pur- 
chaser impliedly  reserves  to  himself  of 
breaking  off  the  contract  if  the  vendor 
breaks  it,  by  not  making  a  good  title.  The 
Court  of  Appeals  construed  these  words  as 
a  condition,  but  Lord  Cairns,  L.  C,  pointed 
out  that  they  would,  if  so  construed,  imply 
that  the  vendor  was  free,  but  the  purchaser 
bound;  4  App.  Cas.  311.  In  3  App.  Cases 
1124,  in  the  House  of  Lords,  it  was  said,  in 
holding  that  a  correspondence  between  par- 
ties constituted  a  complete  contract,  "If  you 
can  find  the  true  and  important  ingredients 
of  an  agreement  in  that  which  has  taken 
place  between  two  parties  in  the  course  of 
a  correspondence,  then,  although  the  corre- 
spondence may  not  set  forth,  in  a  form  which 
a  solicitor  would  adopt  if  he  were  instructed 
to  draw  an  agreement  in  writing,  that  which 
is  the  agreement  between  the  parties,  yet,  if 
the  parties  to  the  agreement,  the  thing  to  be 
sold,  the  price  to  be  paid,  and  all  those  mat- 
ters, be  clearly  and  distinctly  stated,  al- 
though only  by  letter,  an  acceptance  clearly 
by  letter  will  not  the  less  constitute  an 
agreement  in  the  full  sense  between  the  par- 
ties, merely  because  that  letter  may  say, 
'We  will  have  this  agreement  put  in  due 
form  by  a  solicitor.' "  In  the  same  case 
Lord  Blackburn  said  that  there  must  be  a 
complete  agreement,  "if  not  there  is  no  con- 
tract so  long  as  the  parties  are  only  in  nego- 
tiation. But  the  mere  fact  that  the  parties 
have  expressly  stipulated  that  there  shall 
afterwards  be  a  formal  agreement  prepared 
embodying  the  terms  which  shall  be  signed 
by  the  parties,  does  not  by  itself  show  that 
they  continue  merely  in  negotiation.  It  is 
a  matter  to  be  taken  into  account  in  constru- 
ing the  evidence  and  determining  whether 
the  parties  have  really  come  to  a  final  agree- 
ment or  not." 

The  tendency  in  recent  authorities  is  said 
in  Pollock,  Contr.  47,  to  discourage  all  at- 
tempts to  lay  down  any  fixed  rule  as  govern- 
ing these  cases.  The  question  may  be  made 
clear  by  putting  it  this  way,  whether  there 
is  in  the  particular  case  a  final  consent  of 
the  parties  such  that  no  new  term  or  varia- 
tion can  be  introduced  in  the  formal  docu- 
ment to  be  proposed.  "It  is  a  settled  law 
that  a  contract  may  be  made  by  letter  and 
that  the  mere  reference  in  them  to  a  future 
formal  contract  will  not  prevent  their  con- 
stituting a  binding  contract;"  8  Ch.  D.  70. 
It  is  not  binding  if  the  terms  are  uncertain, 
e.  g.,  an  agreement  to  sell  an  estate  reserv- 
ing "the  necessary  land  for  making  a  rail- 
road";  [1875]  20  Eq.  492;  to  make  such  a 
contract  in  the  future  "as  the  parties  may 
agree  upon" ;  Shepard  v.  Carpenter,  54  Minn. 
153,  55  N.  W.  906;  to  give  a  lease  in  the 


CONTRACT 


GG3 


CONTRACT 


form  usual  in  the  city  where  the  property 
is  situate;  Bcholtz  v.  Ins.  Co.,  100  Fed.  573, 
40  C.  C.  A.  550;  otherwise  of  an  agreement 
to  execute  a  deed  of  separation  containing 
the  "usual  covenants";  [1S81]  18  Ch.  Div. 
670. 

Whore  all  the  terms  of  a  contract  were 
agreed  upon  and  It  was  dictated  to  a  ste- 
nographer to  be  written  out  ami  signed  by  the 
parties,  the  contract  was  held  tu  be  complete, 
though  it  was  not  reduced  to  writing  before 
breach;  Hollerbach  &  May  Contract  Co.  v. 
Wilkins,  130  Ky.  51,  112  S.  W.  1126.  Though 
the  parties  to  a  contract  agreed  to  reduce  it 
to  writing,  failure  to  do  so  does  not  invali- 
date it,  but  merely  affects  the  mode  of  proof; 
Jenkins  &  Reynolds  Co.  v.  Alpena  Portland 
Cement  Co.,  147  Fed.  041,  77  C.  O.  A.  625. 

Where  a  contract  was 'reduced  to  writing 
and  assented  to  by  the  parties,  but  not  yet 
signed,  it  was  held  not  binding;  Fourehy  v. 
Ellis,  140  Fed.  149. 

Since  the  judicature  acts  in  England,  a 
tenant  holding  under  an  agreement  for  a 
lease  of  which  specific  performance  would 
be  decreed,  stands  in  precisely  the  same  posi- 
tion as  if  the  lease  had  been  executed;  21 
Ch.  D.  9. 

Qualities  of  contracts.  Every  agreement 
should  be  so  complete  as  to  give  either  party 
his,  action  upon  it;  both  parties  must  assent 
to  all  its  terms;  3  Term  G53 ;  1  B.  &  Aid. 
681;  McCulloch  v.  Ins.  Co.,  1  Pick.  (Mass.) 
278.  To  the  rule  that  the  contract  must  be 
obligatory  on  both  parties,  there  are  some 
exceptions :  as  the  case  of  an  infant,  who 
may  sue,  though  he  cannot  be  sued,  on  his 
contract;  Add.  Contr.  3S0;  Stra.  937.  See 
other  instances,  6  East  307;  3  Taunt.  169; 
5  id.  788;  3  B.  &  C.  232.  There  must  be  a 
good  and  valid  consideration  (q.  v.),  which 
must  be  proved  though  the  contract  be  in 
writing;  7  Term  350,  note  (o)  ;  2  Bla.  Com. 
444;  Fonb.  Eq.  335,  n.  (a).  There  is  an  ex- 
ception to  this  rule  in  the  case  of  bills  and 
notes,  which  are  of  themselves  prima  facie 
evidence  of  consideration.  And  in  other  con- 
tracts (written),  when  consideration  is  ac- 
knowledged, it  is  prima  facie  evidence  there- 
of, but  open  to  contradiction  by  parol  testi- 
mony. There  must  be  a  thing  to  be  done 
which  is  not  forbidden  by  law,  or  one  to  be 
admitted  which  is  not  enjoined  by  law. 
Fraudulent,  immoral,  or  forbidden  contracts 
are  void.  A  contract  is  also  void  if  against 
public  policy  or  the  statutes,  even  though 
the  statute  be  not  prohibitory  but  merely  af- 
fixes a  penalty;  Toll.  Contr.  259  ct  scq.; 
Mitchell  v.  Smith,  4  Dall.  (U.  S.)  209,  1  L. 
Ed.  82S;  Mabin  v.  Coulon,  4  Dall.  (U.  S.) 
298,  1  L.  Ed.  S41 ;  Stanley  v.  Nelson,  28  Ala. 
514;  Siter  v.  Sheets,  7  Ind.  132;  Solomon  v. 
Dreschler,  4  Minn.  278  (Gil.  197)  ;  Coburu 
v.  Odell,  30  N.  H.  540 ;  Bell  v.  Quin,  2  Saudf. 
(N.  Y.)  146.  But  see  Branch  Bank  at  Mont- 
gomery v.  Crocheron,  5  Ala.  250.  As  to  con- 
tracts which  cannot  be  enforced  from  non- 


compliance with  the  statute  of  frauds,  see 
Frauds,  St  a 

Butts  by  third  parties.  It  was  for  a  long 
time  not  fully  settled  wb  intract  be- 

tween A  and  B  that   o  ild  do 

something  for  the  benefit  of  C  did  or  did  not 
give  0  a  right  of  action  on  the  contract  See 
1  B.  &  p.  98;  3  I'-'.  149;  but  it  is  now  dis- 
tinctly established  In  annot 
sue;  1  B.  1;  Po&  I  >;  in 
America  the  authorities  are  conflicting. 

On  specialties  most  courts  do  not  permit  a 
suit  in  a  third  person's  name,  j  I  ie  do; 
Poll.  Contr.  204,  citing  Millard  v.  Baldwin,  3 
Gray  (Mass.)  484.  Professor  Harriman 
i  <  !ontracts,  ch.  Yl  1 ),  after  citing  the  authori- 
ties for  the  common-law  rule  that  the  one 
not  a  party  to  it  can  enforce  a  contract, 
enumerates  and  discusses  the  exceptions. 
The  only  exception  recognized  in  Mass) 
setts  (the  right  to  recover  money  in  the 
hands  of  the  defendant  which  is  of  right  the 
property  of  the  plaintiff),  is  considered  no 
real  exception,  as  the  liability  is  not  con- 
tractual; the  right  of  a  son  to  sue  on  a 
promise  made  to  a  father  is  not  now  recog- 
nized in  England  or  in  Massachusetts  as  it 
formerly  was,  and  it  has  no  foundation  in 
principle;  The  broad  exception  existing  in 
most  of  the  states  permitting  a  person  for 
whose  benefit  a  promise  is  made  to  sue  upon 
it,  he  considers  not  founded  on  any  principle, 
but  a  clear  case  of  judicial  legislation  which, 
like  most  arbitrary  rules,  has  led  to  confu- 
sion. He  reaches  the  conclusion  that  the 
right  of  a  stranger  to  sue  in  certain  cases  is 
recognized  in  New  York,  Missouri,  Indiana, 
Illinois,  Nebraska,  New  Hampshire,  Maine, 
and  Rhode  Island,  and  that  in  Massachusetts 
and  Michigan,  as  in  England,  the  common 
law  prevails.  In  the  federal  courts  he  con- 
siders the  rule  not  clearly  settled,  but  that 
the  general  rules  laid  down  by  the  supreme 
court  coincide  with  the  common-law  rule. 

In  Ilendrick  v.  Lindsay,  93  U.  S.  143,  23  L. 
Ed.  855,  the  court  (Davis,  J.)  said  that  "the 
right  of  a  party  to  maintain  assumpsit  on  a 
promise  not  under  seal  made  to  another  for 
his  benefit,  although  much  controverted,  is 
now  the  prevailing  rule  in  this  country."  In 
Second  Nat.  Bank  v.  Grand  Lodge,  98  V.  s. 
123,  25  L.  Ed.  75,  it  was  held  that  while  the 
common-law  rule  is  that  a  stranger  cannot 
sue  upon  it,  "there  are  confessedly  many  ex- 
ceptions to  It."  In  Pennsylvania  the  general 
rule  is  recognized;  but  it  Is  held  that  where 
money  or  property  is  placed  by  one  in  the 
possession  of  another,  to  be  paid  or  dell 
to  a  third  person,  the  latter  has  a  right  of 
action,  being  regarded  as  a  party  to  the  con- 
sideration on  which  the  undertaking  rests; 
Adams  v.  Kuehn,  119  Pa.  76,  13  Atl.  1S4;  so, 
also,  Blymlre  v.  Boistle,  G  Watts  (Ta.)  1S2, 
31  Am.  Dec.  458  And  a  promise  to  one  to 
pay  a  debt  due  by  him  to  another  is  valid; 
Hind  v.  Iloldship.  2  Watts  (Pa.)  104,  26  Am. 
Dec.  107.    In  some  jurisdictions,  even  includ- 


CONTRACT 


664 


CONTRACT 


ing  courts  adhering  to  the  general  common- 
law  rule,  a  third  person  has  a  right  to  en- 
force a  trust  created  for  his  benefit  by  an- 
other person ;  Union  P.  R.  Co.  v.  Durant,  95 
U.  S.  57G.  24  L.  Ed.  391 ;  Street  v.  McConnell, 
16  111.  125 ;  Bay  v.  Williams,  112  111.  91,  1  N. 
E.  340,  54  Am.  Rep.  209;  Chace  v.  Chapin, 
130  Mass.  128 ;  Pruitt  v.  Pruitt,  91  Ind.  595. 
But  see  Crandall  v.  Payne,  154  111.  627,  39 
N.  E.  601,  where  it  was  held  that  when  a 
contract  of  sale  of  land  from  A  to  B  recited 
that  part  of  the  purchase  money  was  "going 
to  C,"  the  latter  could  not  sue  B. 

See  for  a  general  discussion  of  the  subject, 
Southern  Express  Co.  v.  R.  Co.,  29  Am.  L. 
Reg.  O.  S.  596;  4  N.  J.  L.  J.  197,  229;  8 
Harv.  L.  Rev.  93 ;   Harriman,  Contr. 

Construction  and  interpretation  in  refer- 
ence to  contracts.  The  intention  of  the  par- 
ties is  the  pole-star  of  construction ;  but  their 
intention  must  be  found  expressed  in  the  con- 
tract and  be  consistent  with  rules  of  law. 
The  court  will  not  make  a  new  contract  for 
the  parties,  nor  will  words  be  forced  from 
their  real  signification. 

The  subject  matter  of  the  contract  and  the 
situation  of  the  parties  are  to  be  fully  con- 
sidered with  regard  to  the  sense  in  which 
language  is  used. 

The  legality  of  the  contract  is  presumed 
and  is  favored  by  construction. 

Words  are  to  be  taken,  if  possible,  in  their 
ordinary  and  common  sense. 

The  whole  contract  is  to  be  considered 
with  relation  to  the  meaning  of  any  of  its 
parts. 

The  contract  will  be  supported  rather 
than  defeated:  ut  res  magis  valeat  quam 
per  eat. 

All  parts  will  be  construed,  if  possible,  so 
as  to  have  effect. 

Construction  is  generally  against  the  gran- 
tor— contra  proferentem — except  in  the  case 
of  the  sovereign.  This  rule  of  construction 
is  not  of  great  importance,  except  in  the 
analogous  case  of  penal  statutes ;  for  the  law 
favors  and  supposes  innocence. 

Construction  is  against  claims  or  contracts 
which  are  in  themselves  against  common 
right  or  common  law. 

Neither  bad  English  nor  bad  Latin  in- 
validates a  contract  ("which  perhaps  a  class- 
ical critic  may  think  no  unnecessary  cau- 
tion") ;  2  Bla.  Cora.  379;  6  Co.  59.  See 
Construction  ;  Interpretation. 

Parties.  There  is  no  contract  unless  the 
parties  assent  thereto ;  and  where  such  as- 
sent is  impossible  from  the  want,  immatu- 
rity, or  incapacity  of  mind  of  one  of  the  par- 
ties, there  can  be  no  perfect  contract.  See 
Parties. 

Remedy.  The  foundation  of  the  common 
law  of  contracts  may  be  said  to  be  the  giv- 
ing of  damages  for  the  breach  of  contracts. 
When  the  thing  to  be  done  is  the  payment 
of  money,  damages  paid  in  money  are  en- 
tirely  adequate.     When,   however,   the   con- 


tract is  for  anything  else  than  the  payment 
of  money,  the  common  law  knows  no  other 
than  a  money  remedy :  it  has  no  power  to 
enforce  a  specific  performance  of  the  con- 
tract. 

The  Injustice  of  measuring  all  rights  and 
wrongs  by  a  money  standard,  which  as  a 
remedy  is  often  inadequate,  led  to  the  estab- 
lishment of  the  equity  power  of  decreeing 
specific  performance  when  the  remedy  has 
failed  at  law.  For  example :  contracts  for 
the  sale  of  real  estate  will  be  specifically  en- 
forced in  equity ;  performance  will  be  de- 
creed, and  conveyances  compelled. 

Where  a  contract  is  for  the  benefit  of  the 
contracting  party,  no  action  can  be  main- 
tained by  a  third  person  who  is  a  stranger 
to  the  contract  and  the  consideration ;  Free- 
man v.  R.  Co.,  173  Pa.  274,  33  Atl.  1034. 

As  to  signing  a  contract  without  reading  it, 
see  Signature. 

See  Acceptance;  Agreement;  Breach; 
Consideration;  Contractual  Obligation  ; 
Letter;  Novation;  Offer;  Payment;  Per- 
formance;  Satisfaction;    Status. 

For  the  early  history  of  parol  contracts, 
see  Ames,  3  Sel.  Essays  in  Anglo- Amer.  L.  H. 
304 ;    Salmond,  id.  321. 

See  Impairing  Obligation  of  a  Contract; 
Third  Parties,  Contracts  for. 

In  Roman  and  Mediaeval  Law.  "Formal  contract3 
(legitimes  conventiones)  gave  a  right  of  action  ir- 
respective of  their  subject  matter.  In  Justinian's 
time  the  only  form  of  contract  in  use  was  the  Stip- 
ulation or  verbal  contract  by  question  and  answer. 
Its  origin  is  believed  to  have  been  religious,  though 
the  precise  manner  of  its  adoption  remains  uncer- 
tain. It  appears  as  a  formal  contract  capable  of 
being  applied  to  any  kind  of  subject  matter.  Its 
application  was  in  time  extended  by  the  following 
steps:  1.  The  question  and  answer  were  not  re- 
quired to  be  in  Latin.  2.  An  exact  verbal  corre- 
spondence between  them  was  not  necessary.  3.  An 
instrument  in  writing  purporting  to  be  the  record 
of  a  Stipulation  was  treated  as  strong  evidence 
of  the  Stipulation  having  taken  place.  Hence  the 
medieval  development  of  operative  writings. 

"Informal  agreements  (pacta)  did  not  give  any 
right  of  action  without  the  presence  of  something 
more  than  the  mere  fact  of  the  agreement.  This 
something  was  called  causa.  Practically  the  term 
covers  a  somewhat  wider  ground  than  our  modern 
'consideration  executed' ;  but  it  has  no  general 
notion  corresponding  to  it,  at  least  none  co-exten- 
sive with  the  notion  of  contract ;  it  is  simply  the 
mark  which  distinguishes  any  particular  class 
from  the  common  herd  of  pacta  and  makes  them  ac- 
tionable. Informal  agreements  not  coming  within 
any  of  the  privileged  classes  were  called  nuda  pacta 
and  could  not  be  sued  on.  The  term  nudum  pactum 
is  sometimes  used  however  with  a  special  and  rather 
different  meaning  to  express  the  rule  that  a  con- 
tract  without   delivery   will   not   pass   property. 

"The  further  application  of  this  metaphor  by 
speaking  of  the  causa  when  it  exists  as  the  clothing 
or  vesture  of  the  agreement  is  without  classical 
authority,  but  very  common  ;  it  is  adopted  to  the 
full  extent  by  our  early  writers. 

"The  privileged  informal  contracts  were  the  fol- 
lowing: 1.  Real  contracts,  where  the  causa  con- 
sisted in  the  delivery  of  money  or  goods ;  namely, 
mutui  datio,  commodatum,  depositum,  pignus,  cor- 
responding to  our  bailments.  This  class  was  ex- 
panded within  historical  times  to  cover  the  so-called 
innominate  contracts  denoted  by  the  formula  do  ut 
des,  etc.  2.  Consensual  contracts,  being  contracts  of 
constant  occurrence  in  daily  life  in  which  no  causa 


CONTRACT 


665 


CON  1 RACTUAL 


was  required  beyond  the  nature  of  the  contract 
Itself.  Four  such  contracts  were  recognized,  the 
first  three  of  them  at  all  events,  from  the  earliest 
times  from  which  we  knew  anything,  namely,  Sale, 
Hire,  Partnership,  and  Mandate  (Emptio  Venditio, 
Locatio  Conductio,  Societas,  Mandatum).  To  this 
class  great  additions  were  made  in  later  times. 
Subsidiary  contracts  (pacta  adiecta)  entered  Into  at 
the  same  time  and  in  connection  with  contracts  of 
an  already  enforceable  class  became  likewise  en- 
forceable ;  and  divers  kinds  of  informal  contracts 
were  specially  made  actionable  by  the  Edict  and 
by  Imperial  constitutions,  the  most  material  of  these 
being  the  constitutwn  covering  the  English  heads  of 
account  stated  and  guaranty.  Justinian  added  the 
pactum  donationis,  it  seems  with  a  special  view 
to  gifts  to  pious  uses.  Even  after  all  these  exten- 
sions, however,  matters  stood  thus:  'The  Stipula- 
tion, as  the  only  formal  agreement  existing  in  Jus- 
tinian's time  gave  a  right  of  action.  Certain  par- 
ticular classes  of  agreements  also  gave  a  right  of 
action  even  if  informally  made.  All  other  Informal 
agreements  (nuda  pacta)  gave  none.  This  last 
proposition,  that  nuda  pacta  gave  no  right  of  action, 
may  be  regarded  as  the  most  characteristic  princi- 
ple of  the  Roman  law  of  Contract."  (Sav.  Obi.  2, 
231.)  It  Is  desirable  to  bear  in  mind  that  In  Roman 
and  also  in  early  English  law-text  nudum  p 
does  not  mean  an  agreement  without  consideration. 
Many  nuda  pacta  according  to  the  classical  Roman 
law  would  be  quite  good  in  English  law,  as  being 
made  on  sufficient  consideration ;  while  In  many 
cases  obligations  recognized  by  Roman  law  as  fully 
binding  (e.  g.  from  mandate  or  negotiorum  gestio) 
would  be  unenforceable  as  being  without  considera- 
tion, In  the  common  law. 

"  .  .  .  In  Western  Christendom  the  natural  ob- 
ligation admitted  to  arise  from  an  informal  agree- 
ment was  gradually  raised  to  full  validity,  and  the 
difference  between  paction  and  legitima  conventio 
ceased  to  exist  The  process  however  was  not  com- 
pleted until  English  law  had  already  struck  out 
Its   own    line. 

"The  identification  of  Stipulation  with  formal 
writing,  complete  on  the  Continent  not  later  than 
the  9th  Century,  was  adopted  by  our  mediasval  au- 
thors."    Pollock,   Contracts  743. 

CONTRACT  LABOR  ACT.     See  Labor. 

CONTRACTION  (Lat.  con,  together,  traho, 
to  draw).  A  form  of  a  word  abbreviated  by 
the  omission  of  one  or  more  letters.  This 
was  formerly  much  practised,  but  in  modern 
times  has  fallen  into  general  disuse.  Much 
information  in  regard  to  tbe  rules  for  con- 
trad  ion  is  to  be  found  in  the  Instructor 
Clericalis. 

CONTRACTOR.  One  who  enters  into  a 
contract.  Generally  used  of  those  who  un- 
dertake to  do  public  work  or  tbe  work  for  a 
company  or  corporation  on  a  large  scale,  or 
to  lurnjsh  goods  to  another  at  a  fixed  or  as- 
certained price.  2  Pard.  n.  300.  Sec  Sulli- 
van v.  Johns,  5  Wbart.  (Pa.)  366;  Mason  v. 
U.  S.,  14  Ct.  CI.  59;  Neal  v.  U.  S.,  Id.  280; 
Merriam  v.  U.  S.,  id.  289;  Carr  v.  U.  s.,  13 
Ct.  CI.  136;  Denver  Pacific  Ry.  Co.  v.  U.  S., 
id.  392.  As  to  liability  of  a  party  for  tbe 
neirligeuce  of  a  contractor  employed  by  him, 
see  Independent  Contractor, 

CONTRACTUAL.  Of  the  nature  of  or  per- 
taining to  a  contract,  as,  contraetnal  liability 
or  contractual  obligation,  which  see.  A  term 
used  by  writers  on  the  Roman  law  to  desig- 
nate the  class  of  obligations  described  in  the 
classification  of  the  civilians  as  ex  contractu. 


and  recently  much  used  in  English  and  Amer- 
ican law  in  connection  with  the  more  modern 
method  of  classifying  contracts  referred  to  in 
connection  with  Quasi-Contract.  See  Con- 
tract. 

CONTRACTUAL  OBLIGATION.  The  ob- 
ligation which  arises  from  a  contract  or 
agreement. 

In  the  Roman  law  the  expression  was  a  familiar 
one,  and,  taking  the  result  of  the  discussions  of  the 
subject  by  writers  on  the  civil  law,  and  keeping  In 
view  both  the  etymology  and  the  use  of  the  word 
obligation,  we  may  define  it,  as  there  used,  to  be  a 
tie  binding  one  to  the  performance  of  a  duty  arising 
from  the  agreement  of  parties. 

The  term  Is  resorted  to  as  a  relief  from  what  he 
considers  the  misuse  of  the  word  contract  and  the 
difficulty  of  defining  It,  by  Prof.  Harriman,  who  uses 
It  In  this  sense:  "Nevertheless  in  the  case  of  many 
'contracts,'  using  the  word  in  its  broadest  sense,  we 
find  existing  an  obligation  with  certain  definite 
characteristics  which  can  easily  be  recognized. 
This  obligation  we  shall  venture  to  call  contractu- 
al." He  divides  "the  endless  variety  of  obligations 
which  the  courts  enforce"  into  irrecusable  and  re- 
cusable obligations.  The  former  are  those  which 
are  imposed  upon  the  person  without  his  consent 
and  without  regard  to  any  act  of  his  own;  the 
latter  are  the  result  of  a  voluntary  act  on  the  part 
of  the  person  on  whom  they  are  Imposed.  These 
terms  are  adopted  by  him  from  an  article  by  Profes- 
sor John  H.  Wigmore  In  8  Harv.  L.  Rev.  200,  and 
he  again  divides  recusable  obligations  Into  definite 
and  indefinite,  meaning  thereby  to  express  whether 
the  extent  of  the  undertaking  is  determined  by  the 
act  of  the  party  upon  whom  the  obligation  rests 
or  not;  and  to  differentiate  still  further  the  precise 
character  of  definite  recusable  obligations,  which 
he  terms  contractual  obligations,  Professor  Harri- 
man originates  the  terms  unifactoral  and  bifactoral, 
as  the  obligation  is  created  by  the  act  of  tha  party 
bound,  or  requires  two  acts,  one  by  the  party  bound 
and  the  other  by  the  party  to  be  benefited.  The 
term  contractual  was  of  constant  use  by  writers  on 
the  civil  law,  and  Maine,  in  his  Early  Law  and 
Custom,  refers  to  the  German  Salic  Law  as  elab- 
orately discussing  contractual  obligation.  Pr 
Harriman's  definition  of  this  term  is  "that  obliga- 
tion which  is  imposed  by  the  law  in  consequence  of 
a  voluntary  act,  and  which  is  determined  as  to  its 
nature  and  extent  by  that  act."  Harr.  Cont.  27. 
The  idea  of  contractual  obligation  he  thinks  was 
unknown  to  our  Anglo-Saxon  ancestors  ;  id.  15.  It 
is  undoubtedly  true,  as  Professor  Harriman 
that  the  best  considered  theory  of  contract  at  the 
present  time  has  been  a  slow  and  tedious  develop- 
ment; but  it  Is  equally  true  that  among  the  writers 
who  have  given  most  attention  to  the  study  of  the 
historical  development  of  the  law  there  remain 
'.villi-  differences  of  opinion  as  to  the  time  and  .man- 
ner of  its  development.  It  is  likewise  to  be  ob- 
served that  the  theories  of  Professor  Harriman  and 
those  who  have  preceded  him,  in  the  views  which 
he  has  so  logically  and  comprehensively  treated, 
do  in  fact  include  much  that  is  familiar  to  the 
student  of  the  Roman  law,  while  there  is  exhibited 
a  reluctance  to  give  to  that  system  due  credit  for 
the  principles  which  were  fully  developed  In  it. 
In  his  preface  the  author  here  cited  quotes  with 
approval  the  remark  of  Sir  F.  Pollock,  that  English 
speaking  lawyers  "must  seek  a  genuine  philosophy 
of  the  common  law,  and  not  be  put  oft'  with  a  sur- 
face dressing  of  Romanized  generalities."  It  may 
be  suggested  that  when,  after  centuries  of  an  unsci- 
entific development  of  the  English  law  of  contract 
(due  to  causes  which  Professor  Harriman  well 
sketches  In  Part  II.  of  his  introduction),  what  seems 
to  be  not  only  a  better,  but  the  true  theory  has 
come    to    be    recognized    and  the   coin- 

cidence of  that  theory  with  the  root  idea  of  the  sub- 
ject, as  expressed  in  so  scientific  a  system  as  the 
Roman  law,  should  be  acknowledged  and  utilized, 
rather  than  ignored,  or  characterized  as  "recasting 


CONTRACTUAL  OBLIGATION 


666 


CONTRIBUTION 


English  Ideas  and  institutions  in  a  Roman  mould." 
It  may  be  safely  asserted  that  neither  contract  nor 
contractual  obligation  is  an  English  idea  or  insti- 
tution, but  an  idea  of  human  civilization.  Maine 
says  we  have  no  society  disclosed  to  us  destitute 
of  the  conception ;  Anc.  Law  303.  It  Is  equally 
creditable  to  us  to  have  discovered  and  developed 
the  correct  idea  of  it  after  it  has  been  overlaid 
with  the  misconceptions  of  the  common  law,  as  to 
its  true  nature,  as  it  was  to  the  Civilians  to  have 
formulated  it  correctly  as  part  of  their  scientifically 
constructed  system.  That  a  concurrence  is  reached 
by  these  distinct  processes  is  strong  confirmation  of 
the  accuracy  of  the  result.  The  reader  is  also  re- 
ferred to  Keener,  Quasi-Contracts ;  Holmes,  Com- 
mon Law ;  Sandars,  Inst,  of  Justinian ;  Howe, 
Studies  in  the  Civil  Law,  which  contains  a  state- 
ment of  the  subject  of  obligations  in  the  Roman  law. 

CONTRADICT.  To  prove  a  fact  contrary 
to  what  has  been  asserted  by  a  witness. 

A  party  cannot  impeach  the  character  of 
his  witness,  but  may  contradict  him  as  to 
any  particular  fact ;  1  Greenl.  Ev.  §  443 ;  3 
B.  &  C.  746 ;  Lawrence  v.  Barker,  5  Wend. 
(N.  Y.)  305;  Stockton  v.  Demuth,  7  Watts 
(Pa.)  39,  32  Am.  Dec.  735;  Brown  v.  Bel- 
lows, 4  Pick.  (Mass.)  179,  194;  Dennett  v. 
Dow,  17  Me.  19. 

CONTRAESCRITURA,      In    Spanish    Law. 

Counter-letter.  An  instrument,  usually  exe- 
cuted in  secret,  for  the  purpose  of  showing 
that  an  act  of  sale,  or  some  other  public  in- 
strument, has  a  different  purpose  from  that 
imported  on  its  face.  Acts  of  this  kind, 
though  binding  on  the  parties,  have  no  effect 
as  to  third  persons. 

CONTRAFACTIO  (Lat).  Counterfeiting: 
as,  contrafactio  sigilli  regis  (counterfeiting 
the  king's  seal).    Cowell ;  Beg.  Orig.  42.    See 

Counterfeit. 

CONTRARQTULATOR  (Fr.  contrerou- 
leur).  A  controller.  One  whose  business  it 
was  to  observe  the  money  which  the  col- 
lectors had  gathered  for  the  use  of  the  king 
or  the  people.    Cowell. 

C0NTRAR0TULAT0R  PIP/E.  An  officer 
of  the  exchequer  that  writeth  out  summons 
twice  every  year  to  the  sheriffs  to  levy  the 
farms  (rents)  and  debts  of  the  pipe.    Blount. 

CONTRAVENTION.      In    French   Law.     An 

act  which  violates  the  law,  a  treaty,  or  an 
agreement  which  the  party  has  made.  That 
infraction  of  the  law  punished  by  a  fine 
which  does  not  exceed  fifteen  francs  and  by 
an  imprisonment  not  exceeding  three  days. 

CONTRE-MAITRE.     In   French   Law.     The 

second  officer  in  command  of  a  ship. 

C0NTRECTATI0.  In  Civil  Law.  The  re- 
moval of  a  thing  from  its  place  amounting 
to  a  theft  The  offence  is  purged  by  a  res- 
toration of  the  thing  taken.  Bowy.  Com. 
268. 

C0NTREFAQ0N.  In  French  Law.  The 
offence  of  those  who  print  or  cause  to  be 
printed,  without  lawful  authority,  a  book  of 
which  the  author  or  his  assigns  have  a  copy- 
right.   Merlin,  R6pert. 


CONTRIBUTION.  Payment  by  one  or 
more  persons  who  are  liable,  in  company 
with  others,  of  a  proportionate  part  of  the 
whole  liability  or  loss,  to  one  or  more  of  the 
parties  so  liable  upon  whom  the  whole  loss 
has  fallen  or  who  has  been  compelled  to  dis- 
charge the  whole  liability ;  Dupuy  v.  John- 
son, 1  Bibb  (Ky.)  562;  Lawrence  v.  Cornell, 
4  Johns.  Ch.  (N.  Y.)  545;  Pars.  Part.  198. 

"The  principle  is  that  parties  having  a 
common  interest  in  a  subject-matter  shall 
bear  equally  any  burden  affecting  it  Qui 
sentit  commodum  senlire  debet  et  onus. 
Equality  is  equity.  One  shall  not  bear  a 
common  burden  in  ease  of  the  rest.  Hence, 
if,  (as  often  may  be  done),  a  lien,  charge,  or 
burden  of  any  kind,  affecting  several,  is  en- 
forced at  law  against  one  only,  he  should 
receive  from  the  rest  what  he  has  paid  or 
discharged  on  their  behalf.  This  is  the  doc- 
trine of  equitable  contribution,  resting  on 
as  simple  a  principle  of  natural  justice  as 
can  be  put."  Per  Bates,  Ch.,  in  Eliason  v. 
Eliason,  3  Del.  Ch.  260;  3  Co.  11  6;  1  Cox, 
C.  C.  318 ;  1  B.  &  P.  270 ;  1  Sto.  Eq.  477 ;  1 
Wh.  &  Tud.  L.  Cas.  in  Eq.  66.  Though  its 
most  common  application  is  to  sureties  and 
owners  of  several  parcels  of  land  subject  to 
a  lien,  the  application  of  the  principle  is 
said  to  be  universal  by  Lord  Redesdale  in  3 
Bligh  59;  and  it  applies  equally  to  dower 
as  to  other  incumbrances ;  Eliason  v.  Eliason, 
3  Del.  Ch.  260 ;  Bank  of  United  States  v.  Del- 
orac's  Ex'rs,  Wright  (Ohio)  285. 

A  right  to  contribution  exists  in  the  case 
of  debtors  who  owe  a  debt  jointly  which 
has  been  collected  from  one  of  them ;  Davis 
v.  Burnett,  49  N.  C.  71,  67  Am.  Dec.  263; 
Haupt  v.  Mills,  4  Ga.  545 ;  Mills  v.  Hyde,  19 
Vt.  59,  46  Am.  Dec.  177;  Norton  v.  Coons,  3 
Denio  (N.  Y.)  130;  Fletcher  v.  Brown,  7 
Humphr.  (Tenn.)  385.  See  Russell  v.  Failor, 
1  Ohio  St.  327,  59  Am.  Dec.  631.  It  also  ex- 
ists where  land  charged  with  a  legacy,  or  the 
portion  of  a  posthumous  child,  descends  or 
is  devised  to  several  persons,  when  the  share 
of  each  is  held  liable  for  a  proportionate 
part;  Armistead  v.  Dangerfield,  3  Munf. 
(Va.)  20,  5  Am.  Dec,  501 ;  Stevens  v.  Cooper, 
1  Johns.  Ch.  (N.  Y.)  425,  7  Am.  Dec.  499; 
Blaney  v.  Blaney,  1  Cush.  (Mass.)  107;  Tay- 
lor v.  Taylor,  8  B.  Monr.  (Ky.)  419,  48  Am. 
Dec.  400.  As  to  contribution  under  the  mari- 
time law,  see  General  Average. 

Originally  this  right  was  not  enforced  at 
law,  but  courts  of  common  law  in  modern 
times  have  assumed  a  jurisdiction  to  com- 
pel contribution  among  sureties  in  the  ab- 
sence of  any  positive  contract,  on  the  ground 
of  an  implied  assumpsit,  and  each  of  the 
sureties  may  be  sued  for  his  respective  quota 
or  proportion;  Wh.  &  Tud.  Lead.  Cas.  66 ; 
Carroll  v.  Bowie,  7  Gill  (Md.)  34;  Ellicott 
v.  Nichols,  7  Gill  (Md.)  85,  48  Am.  Dec.  546; 
Lindell  v.  Brant,  17  Mo.  150.  The  remedy  in 
equity  is,  however,  much  more  effective ; 
Couch  v.  Terry's  Adm'rs,  12  Ala.  225;    Me- 


CONTRIBUTION 


6G7 


CONTRIBUTION 


Kenna  v.  George,  2  Rich.  Eq.  (S.  C.)  35; 
Bisp.  Eq.  §  329.  For  example,  a  surety  who 
pays  an  entire  debt  can,  in  equity,  compel 
the  solvent  sureties  to  contribute  towards 
the  payment  of  the  entire  debt;  1  Ch.  Cas. 
346;  Finch  15,  203;  while  at  law  he  can  re- 
cover no  more  than  an  aliquot  part  of  the 
whole,  regard  being  had  to  the  number  of 
co-sureties ;  2  B.  &  P.  2G8 ;  6  B.  &  C.  G97 ; 
Towers  v.  Gowen,  .".2  Me.  381.  See  Subroga- 
tion. See,  as  to  co-sureties,  1  Lead.  Cas.  ESq. 
100. 

There  is  no  contribution,  as  a  general  rule, 
between  joint  tort-feasors;  8T.R.  180  ;  Nich- 
ols  v.  Nowling,  82  Ind.  4S8;  Percy  v.  Clary, 
32  Md.  245;  Miller  v.  Fenton,  11  Paige  (N. 
Y.)  18;  Jacobs  v.  Tollard,  10  Cush.  (Mass.) 
287,  57  Am.  Dee.  105;  Acheson  v.  Miller,  2 
Ohio  St.  203,  59  Am.  Dec.  663;  but  this  rule 
does  not  apply  when  the  person  seeking  re- 
dress did  not  in  fact  know  that  the  act  was 
unlawful,  and  is  not  chargeable  with  knowl- 
edge of  that  fact;  4  Bing.  72;  Moore  v.  Ap- 
pleton,  26  Ala.  633;  Bailey  v.  Bussing,  28 
Conn.  455;  Armstrong  County  v.  Clarion 
County,  66  Pa.  218,  5  Am.  Rep.  36S. 

It  is  not  the  admiralty  rule;  Erie  R.  Co. 
v.  Transp.  Co.,  204  U.  S.  225,  27  Sup.  Ct.  246, 
51  L.  Ed.  450. 

The  rule  against  contribution  between 
wrongdoers  is  not  universal.  If  the  parties 
are  not  equally  at  fault,  the  principal  delin- 
quent may  be  responsible  to  the  others  for 
damages  incurred  by  their  joint  offence. 
With  respect  to  offences  in  which  is  involved 
any  moral  delinquency,  all  parties  are  equal- 
ly guilty,  and  the  courts  will  not  inquire  in- 
to their  relative  guilt.  But  where  the  offence 
is  merely  malum  prohibitum  and  in  no  sense 
immoral,  the  court  will  inquire  into  their 
relative  delinquency  and  administer  justice 
between  them;  Lowell  v.  R.  Co.,  23  Pick. 
(Mass.)  32,  34  Am.  Dec.  33,  cited  in  Washing- 
ton Gas  Co.  v.  Dist.  of  Columbia,  161  U.  S. 
316,  327,  16  Sup.  Ct.  564,  40  L.  Ed.  712,  where 
it  is  said  that  the  cases  are  too  numerous  for 
citation;  they  are  collected  in  Whart.  Nog. 
246 ;  2  Thomp.  Neg.  789,  1061 ;  2  Dill.  Mun. 
Corp.  §  1035. 

The  rule  stated  also  fails  when  the  injury 
grows  out  of  a  duty  resting  primarily  upon 
one  of  the  parties,  and  but  for  his  negligence 
there  would  have  been  no  cause  of  action 
against  the  other.  A  servant  is  consequent- 
ly liable  to  his  master  for  the  damages  re- 
covered against  the  latter  in  consequence 
of  the  negligence  of  the  servant;  Merry- 
weather  v.  Nizan,  2  Sm.  Lead.  Cas.  483. 
Where  a  recovery  is  had  against  a  municipal 
corporation  for  an  injury  resulting  from  an 
obstruction  to  the  highway,  or  other  nui- 
sance, occasioned  by  the  act  or  default  of  its 
servant,  or  even  of  a  citizen,  the  municipality 
has  a  right  of  action  against  the  wrongdoer 
for  indemnity;  Chicago  v.  Robbins,  2  Black 
(U.  S.)  418,  17  L.  Ed.  298. 
In    Civil   Law.     A  partition   by   which  the 


creditors  of  an  insolvent  debtor  divide  among 
themselves  the  proceeds  of  his  property  pro- 
portionably  to  the  amount  of  their  respective 
credits.     La.  Code,  art.  2522,  n.  10.     It  is  a 

division  pro  rata.    Merlin,  7?-  , 

CONTRIBUTORY.  A  person  liable  to  con- 
tribute to  the  assets  of  a  company  which  is 
being  wound  up,  as  being  a  member  or  (in 
some  cases)  a  past-member  thereof.  3  Steph. 
Com.  24;    Moz.  &  \V.  Law  Diet. 

CONTRIBUTORY  NEGLIGENCE.  See 
Nbsugencb. 

CONTROLLER.     A  comptroller,  whi<  ! 

CONTROVER.  One  who  invents  false 
news.     Co.  2d  Inst.  2-7. 

CONTROVERSY.  A  dispute  arising  be- 
tween two  or  more  persons. 

In  the  federal  jurisdiction  clause  relating 
to  controversies  "between  two  or  more 
states,"  etc.,  it  means  those  that  are  justici- 
able between  the  parties  thereto.  Louisiana 
v.  Texas,  176  U.  S.  1,  21,  20  Sup.  Ct.  201,  44 
L.  Ed.  347. 

It  differs  from  case,  which  Includes  all  suits, 
criminal  as  well  as  civil;  whereas  controversy  Is  a 
civil  and  not  a  criminal  proceeding;  Chisholm  v. 
Georgia,  2  Dall.  (U.  S.)  419,  431,  43:!.  1  L.  Ed.  440; 
1  Tuck.   Bla.   Com.  App.  420,   42L 

By  the  constitution  of  the  United  States,  the  Ju- 
dicial power  extends  to  controversies  to  which  the 
United  States  shall  be  a  party.  ArL  III.  sec.  2. 
The  meaning  to  be  attached  to  the  word  contro- 
versy   in   the   constitution   Is  that    above  given. 

CONTUBERNIUM.     In  Civil  Law.     A  mar- 
riage between  two  slaves;    it  was  not  a  legal 
relation,   and   the  children   were   not   legiti- 
mate.    Bryce,    Studies   in   Hist,   etc.,    E 
XVI. 

CONTUMACE  CAPIENDO.  A  writ  pro- 
vided by  53  Geo.  III.  c.  127,  in  place  of  the 
writ  de  excommunicato  capiendo  to  enable 
Ecclesiastical  Courts  to  enforce  an  appear- 
ance and  punish  for  contempt.  1  Holdsw. 
Hist.  Engl.  Law  App.  XVIII.  See  Excom- 
munication. 

CONTUMACY  (Lat  contumacia,  disobedi- 
ence). The  refusal  or  neglect  of  a  party  ac- 
cused to  appear  or  answer  to  a  charge  pre- 
ferred against  him  in  a  court  of  Just! 

Actual  contumacy  is  the  refusal  of  a  party 
actually  before  the  court  to  obey  some  order 
of  the  court. 

Presumed  contumacy  is  the  act  «">f  refus- 
ing or  declining  to  appear  upon  being 
3  Curt.  Dec.   1. 

One  who  has  been  convicted  ffl  contuma- 
ciam in  a  foreign  country  is  to  be  regarded, 
not  as  convicted  of,  but  only  charged  with, 
the  offence:  Ward,  C.  J.,  in  Bx  parte  I'udera, 
i<;2  Fed.  591,  adopting  Moore,  Ex  trad,  art 
102. 

CONTUMAX.  One  accused  of  a  crime  who 
refuses  to  appear  and  answer  to  the  charge. 
An  outlaw. 

CONTUSION.  In  Medical  Jurisprudence. 
An  injury  or  lesion,  arising  from  the  shock 


CONTUSION 


668 


CONVENTION  PARLIAMENTS 


of  a  body  with  a  large  surface,  which  pre- 
sents no  loss  of  substance  and  no  apparent 
wound.  If  the  skin  be  divided,  the  injury 
takes  the  name  of  a  contused  wound.  See  4 
C.  &  P.  3S1,  55S,  5G5;  6  id.  684;  Thomas, 
Med.  Diet,  sub  v.;  2  Beck,  Med.  Jur..  18,  23. 

CONUSANCE,  CLAIM  OF.  See  Cogni- 
zance. 

CONUSANT.  One  who  knows;  as,  if  a 
party  knowing  of  an  agreement  in  which  he 
has  an  interest  makes  no  objection  to  it,  he 
is  said  to  be  conusant.    Co.  Litt.  157. 

CONUSOR.    A  cognizor. 

CONVENE.  In  Civil  Law.  To  bring  an 
action. 

CONVENTICLE.  A  private  assembly  of  a 
few  folks  under  pretence  of  exercise  of  re- 
ligion. The  name  was  first  given  to  the  meet- 
ings of  Wickliffe,  but  afterwards  applied  to 
the  meetings  of  the  non-conformists.    Cowell. 

The  meetings  were  made  illegal  by  16  Car.  II.  c.  4, 
and  the  term  in  its  later  signification  came  to  de- 
note an  unlawful  religious  assembly. 

CONVENTIO  (Lat.  a  coming  together). 
In  Canon  Law.  The  act  of  summoning  or 
calling  together  the  parties  by  summoning 
the  defendant. 

When  the  defendant  was  brought  to  answer,  he 
was  said  to  be  convened, — which  the  canonists  called 
conventio,  because  the  plaintiff  and  defendant  met 
to  contest.    Story,  Eq.  PI.  402. 

In  Contracts.  An  agreement;  a  covenant. 
Cowell. 

Often  used  In  the  maxim  conventio  vincit  legem 
(the  express  agreement  of  the  parties  supersedes 
the  law).  Story,  Ag.  §  368.  But  this  maxim  does 
not  apply,  it  is  said,  to  prevent  the  application  of 
the  general  rule  of  law.  Broom,  Max.  690.  See 
Maxims. 

CONVENTION.  In  Civil  Law.  A  general 
term  which  comprehends  all  kinds  of  con- 
tracts, treaties,  pacts,  or  agreements.  The 
consent  of  two  or  more  persons  to  form  with 
each  other  an  engagement,  or  to  dissolve  or 
change  one  which  they  had  previously  formed. 
Domat,  1.  1,  t.  1,  s.  1 ;  Dig.  lib.  2,  t  14,  1.  1 ; 
lib.  1,  t.  1,  1.  1,  4  and  5. 

In  Legislation.  This  term  is  applied  to  a 
meeting  of  the  delegates  elected  by  the  people 
for  other  purposes  than  usual  legislation.  It 
is  used  to  denote  an  assembly  to  make  or 
amend  the  constitution  of  a  state ;  also  an 
assembly  of  the  delegates  of  the  people  to 
nominate  candidates  to  be  supported  at  au 
election.  As  to  the  former  use,  see  Jameson, 
Constit.  Conv. ;  Cooley,  Const.  Lim. ;  Con- 
stitutional Convention. 

CONVENTION  PARLIAMENTS.  Parlia- 
ments which  met  in  16G0  (and  restored 
Charles  II)  and  in  1688-9  (and  brought  Wil- 
,  liam  and  Mary  to  the  throne).  So  called 
because  they  were  not  summoned  by  the 
king's  writ.  The  acts  of  the  former  were 
confirmed  by  the  succeeding  Parliament  sum- 
moned in  due  form,  but  this  was  not  deemed 


necessary  as  to  those  of  the  latter.     Tasw.- 
Langmead,  Engl.  Const.  Hist  575. 

CONVENTIONAL.  Arising  from,  and  de- 
pendent upon,  the  act  of  the  parties,  as  dis- 
tinguished from  legal,  which  is  something 
arising  from  act  of  law.     2  Bla.  Com.  120. 

CONVENTIONES    LEGITIM/E.     See  Con- 

TEACT. 

CONVENTUS  (Lat.  convenire).  An  as- 
sembly. Conventus  magnatum  vel  procerum. 
An  assemblage  of  the  chief  men  or  nobility ; 
a  name  of  the  English  parliament  1  Bla. 
Com.  248. 

In  Civil  Law.  A  contract  made  between 
two  or  more  parties. 

A  multitude  of  men,  of  all  classes,  gather- 
ed together. 

A  standing  in  a  place  to  attract  a  crowd. 

A  collection  of  the  people  by  the  magis- 
trate to  give  judgment.     Calvinus,  Lex. 

CONVENTUS  JURIDICUS.  A  Roman 
provincial  court  for  the  determination  of 
civil  causes. 

CONVERSANT.  One  who  is  in  the  habit 
of  being  in  a  particular  place  is  said  to  be 
conversant  there.    Barnes  162. 

Acquainted ;    familiar. 

CONVERSION.  In  Equity.  The  exchange 
of  property  from  real  to  personal  or  from 
personal  to  real,  which  takes  place  under 
some  circumstances  in  the  consideration  of 
the  law,  such  as,  to  give  effect  to  directions 
in  a  will  or  settlement,  or  to  stipulations  in 
a  contract,  although  no  such  change  has 
actually  taken  place.  1  Bro.  C.  C.  497;  1 
Lead.  Cas.  Eq.  619 ;  id.  872 ;  Lawrence  v. 
Elliott,  3  Redf.  (N.  Y.)  235;  Dodge  v. 
Williams,  46  Wis.  70,  1  N.  W.  92,  50  N.  W. 
1103 ;   Maddock  v.  Astbury,  32  N.  J.  Eq.  181. 

A  qualified  conversion  is  one  directed  for 
some  particular  purpose ;  Harker  v.  Reilly, 
4  Del.  Ch.  72.  Where  the  purpose  of  conver- 
sion totally  fails  no  conversion  takes  place, 
but  the  property  remains  in  its  original  state, 
but  where  there  is  a  partial  failure  of  the 
purpose  of  conversion  of  land  the  surplus  re- 
sults to  the  heir ;  1  Bro.  C.  C.  503 ;  as  mon- 
ey and  not  as  land,  and  therefore  if  he  be 
dead  it  will  pass  to  his  personal  representa- 
tives even  if  the  land  were  sold  in  his  life- 
time ;  4  Madd.  492.  The  English  authorities 
strongly  favor  the  heir,  and  the  authorities 
are  collected  by  Bispham  (Eq.  pt.  ii.  ch. 
v.)  and  by  Bates,  Ch.  (Harker  v.  Reilly,  4 
Del.  Ch.  72),  who  held  that  where  there  was 
a  qualified  conversion  by  will,  if  one  of  the 
legacies  fail,  whether  it  be  void  ab  origin?  or 
lapse,  that  portion  of  the  fund  which  fails  of 
its  object  will  result  to  the  party  who  would 
have  been  entitled  to  the  real  estate  unsold. 
Bispham  considers  the  American  authorities 
less  favorable  to  the  heir  than  the  English, 
citing  Craig  v.  Leslie,  3  Wheat  (U.  S.)  563, 
4  L.  Ed.  460,  where  it  was  held  that  if  the 
intent  of  the  testator  appears  to  have  been 


CONVERSION 


669 


CON 


to  stamp  upon  the  proceeds  of  the  land  de- 
scribed to  be  sold  the  character  of  person- 
alty, to  all  intents  and  purposes  the  claim 
of  the  heir  is  defeated  and  the  estate  is  con- 
sidered personal  (see  also  Morrow  v.  Bren- 
izer,  2  Eawle  [Pa.]  185).  But  in  the  Dela- 
ware case  cited  it  was  considered  that  the 
English  doctrine  of  qualified  conversion  was 
fully  sustained  by  the  American  cases  at 
large  as  collected  in  the  American  note  to 
Ackroyd  v.  Sinithson,  1  Wh.  &  Tud.  L.  Cas. 
in  Eq.  590;  and  the  case  cited  by  Bispham 
from  3  Wheat.,  as  appears  from  the  foregoing 
Btatement  of  it,  does  not  conflict  with  the 
English  doctrine,  as  it  is  expressly  limited 
to  cases  in  which  the  intention  is  clear  that 
the  heir  shall  not  take. 

Land  is  held  to  be  converted  into  money, 
in  equity,  when  the  owner  has  contracted 
to  sell;  and  if  he  die  before  making  a  con- 
veyance, his  executors  will  be  entitled  to 
the  money,  and  not  his  heirs  ;  1  W.  Bla.  129  ; 
Masterson  v.  Pullen,  02  Ala.  145. 

When  land  is  ordered  by  a  will  to  be  sold, 
it  is  regarded  as  converted  into  personalty; 
Hough's  Estate,  3  D.  R.  (Pa.)  187;  so  of  a 
direction  to  sell  after  20  years;  Handley  v. 
Palmer,  103  Fed.  39,  43  C.  C.  A.  100;  but  a 
mere  power  of  sale  will  not  have  that  effect 
until  it  is  exercised;  Chew  v.  Nicklin,  45  Pa. 
84.  Lands  taken  under  the  right  of  eminent 
domain  are  converted. 

Money  may  be  held  to  be  converted  into 
land  under  various  circumstances :  as  where, 
for  example,  a  man  dies  before  a  conveyance 
is  made  to  him  of  land  which  he  has  bought 
1  P.  Wins.  1TG ;  Peter  v.  Beverly,  10  Pet  (U. 
S.)  563,  9  L.  Ed.  522.  See  Giraud  v.  Giraud, 
58  How.  Pr.  (N.  Y.)  175;  Orrick  v.  Boehm, 
49  Md.  72. 

Where  land  forming  part  of  a  decedent's 
estate  is  sold  in  foreclosure  to  pay  off  a  debt, 
the  sale  converts  the  real  estate  into  money. 
But  the  conversion  is  effectual  only  to  the 
extent  and  for  the  purposes  for  which  the 
sale  was  authorized,  whether  by  will  or  by 
the  order  of  the  court.  So  far  as  these  pur- 
poses do  not  extend,  and  in  so  far  as  any  of 
them  do  not  take  effect,  in  fact  or  in  law,  the 
property  retains  its  former  character  in  re- 
spect of  the  rights  of  its  owner  and  passes 
accordingly;  2  Woerner,  Am.  L.  of  Adm.  § 
4S1 ;  Kitchens  v.  Jones,  87  Ark.  502,  113  S. 
W.  29,  19  L.  R.  A.  (N.  S.)  723.  128  Am.  St. 
Rep.  3G. 

In  case  of  foreclosure  of  a  mortgage,  as  to 
whether  the  heir  or  personal  representative 
takes  the  surplus  depends  upon  whether  the 
mortgagor  died  before  or  after  the  foreclo- 
sure; 2  Sim.  St  323;  although  in  one  case, 
where  foreclosure  was  before  mortgagor's 
death,  still  it  was  held  that  the  surplus  went 
to  his  heirs;  124  L.  T.  503.  A  conditional  di- 
rection to  sell  laud  can  cause  no  equitable 
conversion  until  the  condition  is  satisfied; 
L.  R.  26  Ch.  Div.  601. 

When  a  binding  option  for  the  purchase  of 


land  is  not  exercised  until  after  the  death 
of  the  vendor,  the  conversion  relates  back  as 
between  the  heir  and  the  personal  repre- 
sentative to  the  date  of  the  contract  l.y 
which  the  option   wa 

D'Arras  v.  Keyser,  2<;  Pa  -  Wa- 

ter-Works v.  Sisson,  18  R.  I.  411,  28  At! 
contra,  Smith  v.  Loewensteln,  50  Ohio 
34  s.  i:.  15ft 

Courts  of  equity  have  power  to  order  the 
conversion  of  property  held  in  a  i 
real  esiate  into  personal  estate,  or 
when  such  conversion  is  not  in  conflict  with 
the  will  of  the  testator,  expressly  or  by  im- 
plication, and  is  for  the  interest  of  the  i 
que  trust;   Ex  parte  Jordan,  4  Del.  Ch.  r.ir, , 
Johnson   7.   Payne,   1   Hill   (S.   C.)   112.     The 
English  court  of  chancery  largely  exercised 
this  Jurisdiction;    2  Sto.  Eq.  Jur.  §  1357;    6 
\cs.  Jr.  6;    6  Madd.  100. 

At  Law.  An  unauthorized  assumption  and 
exercise  of  the  right  of  ownership  over  goods 
or  personal  chattels  belonging  to  another,  to 
the  alteration  of  their  condition  or  the  exclu- 
sion of  the  owner's  rights.  Stickney  v.  Mun- 
roe,  44  Me.  197;  Gilman  v.  Hill,  30  X.  B. 
311 ;  Aschermann  v.  Brewing  Co.,  45  Wis. 
262. 

A  constructive  conversion  takes  place 
when  a  person  does  such  acts  in  reference  to 
the  goods  or  personal  chattels  of  another  as 
amount,  in  view  of  the  law,  to  appropriation 
of  the  property  to  himself. 

A  direct  conversion  takes  place  when  a 
person  actually  appropriates  the  property  of 
another  to  his  own  beneflcia]  use  and  enjoy- 
ment or  to  that  of  a  third  person,  or  destroys 
it,  or  alters  its  nature. 

Every  such  unauthorized  taking  of  per- 
sonal property;  Pollock,  Torts  135;  Kennet 
v.  Robinson,  2  J.  J.  Mar.  (Ky.)  84;  Hutchin- 
son v.  Bobo,  1  Bailey  (S.  C.)  546;  Murray  v. 
Burling,  10  Johns.  (X.  Y.)  172;  Howitt  v. 
Estelle,  92  111.  218;  and  all  intermeddling 
with  it  beyond  the  extent  of  authority  con- 
ferred, in  case  a  limited  authority  over  it 
has  been  given;  Cummings  v.  Perham,  1 
Mete.  (Mass.)  555;  Grant  v.  King,  14  Vt.  :;<;7  ; 
Seymour  v.  Ives,  40  Conu.  109;  Teople  v. 
Bank,  75  N.  Y.  547;  Liptrot  v.  Holmes.  1  Ga. 
3S1;  with  intent  so  to  apply  or  dispose  of 
it  as  to  alter  its  condition  or  interfere  with 
the  owner's  dominion;  Stevens  v.  Curtis.  18 
Pick.  (Mass.)  227:  8  M.  ft  W.  540;  consti- 
tutes a  conversion,  including  a  taking  by 
those  claiming  without  right  to  be  assignees 
in  bankruptcy;  3  Brod.  ft  B.  2;  using  a 
thing  without  license  of  the  owner:  Holland 
v.  Osgood,  S  Vt.  283  :  Bilsbury  v.  M.  Coon,  6 
Hill  (N.  T.)  425.  41  Am.  Dec.  763;  Johnson 
v.  Weedman,  4  Scam.  (111.)  495;  Scruggs  v. 
Davis.  5  Snced  (Tonn.i  261;  Johnson's  Adm'rs 
v.  The  Arabia,  24  Mo.  SO;  or  in  excess  of  the 
license:  Hart  v.  Skinner.  18  Vt  138,  42  Am. 
Dec.  500:  Wheelocfe  v.  Wheelwright  5  Mass. 
104 ;    Disbrow  v.  Ten  Broeck,  4  E.  D.  Sm.  (N. 


CONVERSION 


670 


CONVERSION 


T.)  397;  Creach  v.  McRae,  50  N.  C.  122; 
misuse  or  detention  by  a  finder  or  other 
bailee;  Wheelock  v.  Wheelwright,  5  Mass. 
104 ;  Marriam  v.  Yeager,  2  B.  Monr.  (Ky.) 
339;  Cargill  v.  Webb,  10  N.  H.  199;  Ripley 
v.  Dolbier,  18  Me.  3S2;  Spencer  v.  Pileher, 
8  Leigh  (Va.)  565;  Gentry  v.  Madden,  3  Ark. 
127;  Horsely  v.  Branch,  1  Humph.  (Tenn.) 
199;  Disbrow  v.  Ten  Broeck,  4  E.  D.  Sm. 
(N.  Y.)  397;  Fail  v.  McArthur,  31  Ala.  26; 
see  Harvey  v.  Epes,  12  Gratt.  (Va.)  153 ;  de- 
livery by  a  bailee  in  violation  of  orders;  St. 
John  v.  O'Connel,  7  Port.  (Ala.)  466;  non- 
delivery by  a  wharfinger,  carrier,  or  other 
bailee;  Langford  v.  Curnmings,  4  Ala.  46; 
Judah  v.  Kemp,  2  Johns.  Cas.  (N.  Y.)  411; 
Ewart  v.  Kerr,  Rice  (S.  C.)  204 ;  Greenfield 
Bank  v.  Leavitt,  17  Pick.  (Mass.)  1,  28  Am. 
Dec.  268;  a  wrongful  sale  by  a  bailee,  under 
some  circumstances ;  10  M.  &  W.  576 ;  11  id. 
363 ;  Everett  v.  Coffin,  6  Wend.  (N.  Y.)  603, 
22  Am.  Dec.  551 ;  Carraway  v.  Burbank,  12 
N.  C.  306 ;  Howitt  v.  Estelle,  92  111.  21S ;  Bay- 
lis  v.  Cronkite,  39  Mich.  413 ;  a  sale  of  stolen 
goods  by  an  auctioneer,  though  made  without 
notice  of  the  lack  of  title  ;  [1S92]  1  Q.  B.  495 ; 
where  one,  who  has  authority  to  sell,  sells 
below  the  authorized  price,  it  does  not  con- 
stitute conversion ;  Sarjeant  v.  Blunt,  16 
Johns.  (N.  Y.)  74 ;  contra,  Chase  v.  Basker- 
ville,  93  Minn.  402,  101  N.  W.  950.  It  is  not 
conversion  to  sell  for  credit,  when  authorized 
to  sell  only  for  cash ;  Loveless  v.  Fowler,  79 
Ga.  134,  4  S.  E.  103,  11  Am.  St.  Rep.  407; 
but  exchanging  the  goods  has  been  held  a 
conversion ;  Ainsworth  v.  Partillo,  13  Ala. 
460 ;  a  failure  to  sell  when  ordered ;  Barton 
v.  White's  Adm'r,  1  Harr.  &  J.  (Md.)  579; 
Ainsworth  v.  Partillo,  13  Ala.  460 ;  improper 
or  informal  seizure  of  goods  by  an  officer ; 
Sanborn  v.  Hamilton,  18  Vt.  590;  Reynolds 
v.  Shuler,  5  Cow.  (N.  Y.)  323 ;  Burk  v.  Bax- 
ter, 3  Mo.  207;  Martin  v.  England,  5  Yerg. 
(Tenn.)  313;  Burgin  v.  Burgin,  23  N.  C.  453; 
Calkins  v.  Lockwood,  17  Conn.  154,  42  Am. 
Dec.  729;  Fiedler  v.  Maxwell,  2  Blatchf. 
552,  Fed.  Cas.  No.  4,760;  Ferguson  v.  Clif- 
ford, 37  N.  H.  86 ;  informal  sale  by  such  of- 
ficer ;  Pierce  v.  Benjamin,  14  Pick.  (Mass.J 
356,  25  Am.  Dec.  396 ;  or  appropriation  to 
himself ;  Perkins  v.  Thompson,  3  N.  H.  144 ; 
as  against  such  officer  in  the  last  three  cases ; 
the  adulteration  of  liquors  as  to  the  whole 
quantity  affected;  3  A.  &  E.  306;  Young  v. 
Mason,  8  Pick.  (Mass.)  551;  an  excessive  levy 
on  a  defendant's  goods,  followed  by  a  sale ; 
6  Q.  B.  381 ;  but  not  including  a  mere  tres- 
pass with  no  further  intent;  8  M.  &  W.  540: 
Stevens  v.  Curtis,  18  Pick.  (Mass.)  227 ;  nor  an 
accidental  loss  by  mere  omission  of  a  car- 
rier; 2  Greenl.  Ev.  §643;  5  Burr.  2825; 
Dwight  v.  Brewster,  1  Pick.  (Mass.)  50,  11 
Am.  Dec.  133;  Hawkins  v.  Hoffman,  6  Hill 
(N.  Y.)  586,  41  Am.  Dec.  767 ;  nor  mere  non- 
feasance; 2  B.  &  P.  438;  Cairnes  v.  Bleecker, 


12  Johns.  (N.  Y.)  300.  A  manual  taking  is 
not  necessary. 

Trover  will  lie  for  the  value  of  property  il- 
legally withheld  under  an  unlawful  claim 
for  freight  charges ;  Marsh  v.  R.  Co.,  9  Fed. 
873;  Richardson  v.  Rich,  104  Mass.  156,  6 
Am.  Rep.  210 ;  Beasley  v.  R.  Co.,  27  App.  D. 

C.  595,  6  L.  R.  A.  (N.  S.)  1048;  though  the 
refusal  to  surrender  was  conditional,  for  the 
purpose  of  ascertaining  whether  the  bill  of 
lading  or  the  waybill  was  the  true  statement 
of  the  sum  due;  Beasley  v.  R.  Co.,  27  App. 

D.  C.  595,  6  L.  R.  A.  (N.  S.)  1048.  It  is  not 
conversion  for  a  common  carrier,  who  has 
received  property  from  one  not  rightfully 
entitled  to  its  possession,  to  deliver  it  in  ac- 
cordance with  the  contract  of  carriage,  un- 
less the  true  owner  intervenes  before  the 
goods  are  delivered  and  demands  them ; 
Shellnut  v.  R.  Co.,  131  Ga.  404,  62  S.  E.  294, 
IS  L.  R.  A.  (N.  S.)  494 ;  Gurley  v.  Armstead, 
148  Mass.  267,  19  N.  E.  389,  2  L.  R.  A.  80,  12 
Am.  St.  Rep.  555;  Burditt  v.  Hunt,  25  Me. 
419,  43  Am.  Dec.  289;  contra,  Southern  Ex- 
press Co.  v.  Palmer,  48  Ga.  85. 

Where  the  carrier  has  been  notified  by  the 
true  owner  while  the  goods  are  still  in  its 
possession,  however,  it  is  a  conversion  to 
deliver  them  according  to  the  directions  of 
the  shipper;  Atchison,  T.  &  S.  F.  R.  Co.  v. 
Jordon,  67  Kan.  86,  72  Pac.  533 ;  Charleston 
&  W.  C.  R.  Co.  v.  Pope,  122  Ga.  577,  50  S.  E: 
374. 

The  intention  required  is  simply  an  intent 
to  use  or  dispose  of  the  goods,  and  the  knowl- 
edge or  ignorance  of  the  defendant  as  to  their 
ownership  has  no  influence  in  deciding  the 
question  of  conversion ;  Lee  v.  McKay,  25  N. 
C.  29 ;  Thayer  v.  Wright,  4  Denio  (N.  Y.)  ISO ; 
Thrall  v.  Lathrop,  30  Vt.  307,  73  Am.  Dec. 
306; 'Riley  v.  Water  Power  Co.,  11  Cush. 
(Mass.)  11;  Newkirk  v.  Dalton,  17  111.  413; 
Bartlett  v.  Hoyt,  33  N.  H.  151. 

A  license  may  be  presumed  where  the  tak- 
ing was  under  a  necessity,  in  some  cases ; 
6  Esp.  81;  or,  it  is  said,  to  do  a  work  of 
charity;  2  Greenl.  Ev.  §  643;  or  a  kindness 
to  the  owner ;  4  Esp.  195 ;  Sparks  v.  Purdy, 
11  Mo.  219 ;  Plumer  v.  Brown,  8  Mete.  (Mass.) 
57S ;  without  intent,  in  the  last  two  cases, 
to  injure  or  convert  it ;  Plumer  v.  Brown,  8 
Mete.  (Mass.)  578.  As  to  what  constitutes  a 
conversion  as  between  joint  owners,  see  Low- 
thorp  v.  Smith,  2  N.  C.  255;  White  v.  Os- 
born,  21  Wend.  (N.«  Y.)  72;  Campbell  v. 
Campbell,  6  N.  C.  65 ;  Bradley  v.  Arnold,  16 
Vt.  382 ;  and  as  to  a  joint  conversion  by  two 
or  more,  see  White  v.  Demary,  2  N.  H.  546; 
Forbes  v.  Marsh,  15  Conn.  384;  Guerry  v. 
Kerton,  2  Rich.  (S.  C.)  507 ;  White  v.  Wall, 
40  Me.  574.  A  tenant  in  common  can  main- 
tain trover  for  the  sale  or  attempted  sale 
of  the  common  chattel ;  Williams  v.  Chad- 
bourne,  6  Cal.  559;  Dyckman  v.  Valiente, 
42  N.  Y.  549;  contra,  Barton  v.  Burton,  27 
Vt.  93;    9  Ex.  145;    some  cases  hold  that 


CONVERSION 


671 


CONVERSION 


nothing  short  of  the  destruction  of  the 
plaintiff's  property  is  a  conversion,  because 
a  sale  passes  only  the  vendor's  title  and 
the  co-tenant  continues  a  co-tenant  with 
the  purchaser ;  Big.  Torts  204.  It  is  held  al- 
so that  trover  lies,  between  co-tenants,  for  a 
mere  withholding  of  the  chattel,  or  the  mis- 
use of  it,  or  for  a  refusal  to  terminate  the 
common  Interesl  :  Agnew  v.  Johnson,  17  Pa. 
373,  55  Am.  Dec.  505 ;  Piquet  v.  Allison,  12 
Mich.  328,  8G  Am.  Dec.  54. 

An  original  unlawful  taking  is  in  general 
conclusive  evidence  of  a  conversion;  Davis 
V.  Duncan,  1  McCord  (S.  C.)  213;  Fain 
v.  Payne,  15  Johns.  (N.  Y.)  431;  Hyde  v. 
Noble,  13  N.  II.  494,  38  Am.  Dec.  508;  Gar- 
rard v.  R.  Co.,  20  Pa.  154;  Skinner  v.  Brig- 
ham,  12G  Mass.  132;  as  is  the  existence  of 
a  state  of  things  which  constitutes  an  actual 
conversion  ;  Everett  v.  Coflin,  0  Wend.  (X. 
Y.)  603,  22  Am.  Dec.  551 ;  Combs  v.  Johnson, 
12  N.  J.  L.  244;  Newsum  v.  Newsum,  1  Leigh 
(Va.)  86,  19  Am.  Dec.  739;  Jewett  v.  Pat- 
ridge,  11'  Me.  243,  27  Am.  Dec.  173;  Hirues  v. 
McKinney,  3  Mo.  3S2;  Grant  v.  King,  14  Vt. 
307;  without  showing  a  demand  and  re- 
fusal; but  where  the  original  taking  was 
lawful  and  the  detention. only  is  illegal,  a  de^ 
mand  and  refusal  to  deliver  must  be  shown ; 
Witherspoon  v.  Blewett,  47  Miss.  570;  5  B. 
&  C.  140 ;  Kennet  v.  Robinson,  2  J.  J.  Marsh. 
(Ky.)  84 ;  Thompson  v.  Rose,  16  Conn.  71,  41 
Am.  Dec.  121 ;  Polk's  Adm'r  v.  Allen,  19  Mo. 
407 ;  Rogers  v.  Huie,  2  Cal.  571,  50  Am.  Dec. 
363;  but  this  evidence  is  open  to  explana- 
tion and  rebuttal;  Cooley,  Torts  532;  2 
Wms.  Saund.  47  e;  5  B.  &  Aid.  847;  Thomp- 
son v.  Rose,  16  Conn.  71,  41  Am.  Dec.  121; 
Jacoby  v.  Laussatt,  6  S.  &  R.  (Pa.)  300 ;  Lock- 
wood  v.  Bull,  1  Cow.  (N.  Y.)  322,  13  Am.  Dec. 
539 ;  Hunger  v.  Hess,  28  Barb.  (N.  Y.)  75 ; 
Dietus  v.  Fuss,  8  Md.  148;  even  though  ab- 
solute ;  2  C.  M.  &  R.  495.  Demands  and  un- 
lawful refusal  constitute  a  conversion ;  Big. 
Torts  200;  mere  refusal  is  only  evidence  of 
conversion ;  id.  202. 

There  has  been  a  conspicuous  lack  of  har- 
mony in  the  decisions  as  to  whether  a  pledgee 
or  purchaser  from  one  guilty  of  conversion  is 
himself  guilty,  before  demand  and  refusal. 
In  England  the  law  is  briefly  summarized  in 
46  Solicitor's  Journ.  24.  In  11  Q.  B.  Div.  99, 
it  is  held  that  there  is  no  conversion  until 
detention  after  demand;  so  also  Rawley  v. 
Brown,  IS  Hun  (N.  Y.)  456 ;  but  by  the  weight 
of  American  authority  demand  is  not  neces- 
sary; Riley  v.  "Water  Power  Co.,  11  Cush. 
(Mass.)  11,  and  see  an  article  in  15  Am.  L. 
Rev.  363. 

The  refusal,  to  constitute  such  evidence, 
must  be  unconditional,  and  not  a  reasonable 
excuse;  3  Ad.  &  E.  108*;  Robinson  v.  Bur- 
leigh, 5  N.  H.  225;  Wood  v.  Dudley,  8  Vt. 
433;  Thompson  v.  Rose,  16  Conn.  76,  41  Am. 
Dec.  121;  Bowman  v.  Baton,  24  Barb.  (N. 
Y.)    52S;     or    accompanied    by    a    condition 


which  the  party  has  no  right  to  impose ;  6 
Q.  B.  44.';;  Dowd  v.  V.  ,    0.  130, 

18  Am.  Dec.  507;  if  made  by  an  agent,  it 
must  be  within  the  scope  "f  his  authority,  to 
hind  the  principal ;  6  Jur.  K.  R. 

Co.,  l  E.  D.  Sin.  i.\.  y.i  522;   but  is  not 
dence  of  conversion   where    i  1   by 

a  condition  which  the  party  baa  a  right  to 
impose;  6  Q.  B.  443;  5  B.  As  AM.  247  : 
well  v.  Few,  7  Johns,  i\".  Y.i  302;  Dowd  v. 
Wadsworth,  L8  N.  0.  130,  18  Am.  Dec.  567; 
Watt  v.  Potter,  i:  Mas.  77.  Fed.  I  No.  17,- 
291.  It  may  be  made  at  any  time  prior  to 
bringing  suit;  ii  Greenl  Ev.  §  644;  11  M.  & 
\v.  ::<;<;;  storm  v.  Livingston,  0  Johns,  i.v. 
Y.)  44;  if  before  he  has  parted  with  his  pos- 
session; Knapp  v.  Winchester,  11  Vt  351. 
it  may  bo  inferred  from  non-compliance  with 
a  proper  demand;  7  C.  &  P.  .'>:;'.»;  Judah  v. 
Kemp,  2  Johns,  ('as.  (N.  Y.)  411.  The  de- 
mand must  be  a  proper  one;  White  v.  Demary, 
2  N. H. 546;  Fa  Place  v.  Aupoix,  3  Johns.  Cas. 
(N.  Y.)  400;  Spence  v.  Mitchell,  !>  Ala.  744; 
made  by  the  proper  person ;  see  2  Brod.  &  B. 
447  ;  Watt  v.  Potter,  2  Mas.  77,  Fed.  Cas.  No. 
17.291;  Carr  v.  Farley,  12  Me.  328;  and 
upon  the  proper  person  or  persons ;  3  Q.  B. 
099;  White  v.  Demary,  2  N.  II.  510.  The 
plaintiff  must  have  at  least  the  right  to  im- 
mediate possession;  Hardy  v.  Munroe,  127 
Mass.  64. 

CONVEYANCE.  The  transfer  of  the  title 
of  land  from  one  person  or  class  of  persons 
to  another.  Dickerman  v.  Abrahams,  21 
Barb.  (N.  Y.)  551;  Abendroth  v.  Town  of 
Greenwich,  29  Conn.  356. 

There  is  no  magical  meaning  in  this  word; 
it  denotes  an  instrument  which  carries  from 
one  person  to  another  an  interest  in  la  ml ; 
Cairns,  L.  C,  in  L.  R.  10  Ch.  App.  12. 

The  instrument  for  effecting  such  trans- 
fer. It  includes  leases;  Jones  v.  Marks.  47 
Cal.  242;  and  mortgages;  Odd  Fellows  Sav- 
ings Bank  v.  Banton,  40  Cal.  003. 

When  there  is  no  express  agreement  to 
the  contrary,  the  expense  of  the  conveyance 
falls  upon  the  purchaser;  2  Ve&  155,  note; 
who  must  prepare  and  tender  the  convey- 
ance. But  see,  antra,  Fairfax  v.  Lewis.  2 
Rand.  (Va.)  20;  Warvelle,  Vend.  347.  The 
expense  of  the  execution  of  the  conveyance 
is,  on  the  contrary,  usually  borne  by  the 
dor;  Sugd.  Vend.  &  P.  296;  contra,  Fairfax 
v.  Lewis.  2  Hand.  (Va.)  20;  Cooperv.  Brown, 
2  McLean   lit.".  Fed.  Cas.  e  Liv- 

ermore  v.    Bagley,   3   Mass.    1^7;   Dudley   v. 
Mimner,  5  id.  472;  Funom.  2.  §  12. 

The  forms  of  conveyance  have  varied  wide- 
ly from  each  other  at  different  periods  in 
the  history  of  the  law,  and  in  the  various 
states  of  the  United  States.  The  m ode  at 
present  prevailing  in  this  country  is  by  bar- 
gain and  sale. 

A  lease  is  a  conveyance;  Shlmer  v.  Town 
of  Phillipsburg,  58  N.  .T.  L.  506,  33  Atl.  852; 

Sanford  V.  Johnson,  24  Minn.  172;  Jones  V. 


CONVEYANCE 


672 


CONVICT 


Marks,  47  Cal.  242;  Crouse  r.  Michell,  130 
Mich.  347,  90  N.  W.  32,  97  Am.  St.  Rep.  479 ; 
Koeber  v.  Somers,  108  Wis.  497,  84  N.  W. 
991,  52  L.  R.  A.  512 ;  Milliken  v.  Faulk,  111 
Ala.  058,  20  South.  594;  contra,  Stone  v. 
Stone,  1  R.  I.  425  (under  a  general  recording 
statute;  and  is  it  where  a  married  woman's 
act  requires  a  husband  to  join  in  all  convey- 
ances?) ;  Heal  v.  Oil  Co.,  150  Ind.  483,  50 
N.  E.  482;  Perkins  v.  Morse,  78  Me.  17,  2 
Atl.  130,  57  Am.  Rep.  7S0 ;  Sullivan  v.  Barry, 
46  N.  J.  L.  1 ;  nor  within  meaning  of  an  act 
declaring  that  no  covenants  shall  be  implied 
in  any  conveyance  of  real  estate;  Tone  v. 
Brace,  11  Paige  Ch.  (N.  Y.)  566;  Mayor, 
etc.,  of  City  of  New  York  v.  Mabie,  13  N.  Y. 
151,  64  Am.  Dec.  538;  Shaft  v.  Carey,  107 
Wis.  273,  83  N.  W.  288.  Where  a  statute  al- 
lowed appeals  in  cases  involving  conveyanc- 
es of  real  estate,  it  was  held  that  an  order 
directing  a  lease  to  be  executed  was  not 
within  the  statute ;  Tuohy's  Estate,  23  Mont. 
305,  58  Pac.  722. 

CONVEYANCER.  One  who  makes  it  his 
business  to  draw  deeds  of  conveyance  of 
lands  for  others  and  to  investigate  titles 
to  real  property.  They  frequently  act  as 
brokers  for  the  sale  of  real  estate  and  ob- 
taining loans  on  mortgage,  and  transact  a 
general  real  estate  business. 

CONVEYANCING.  A  term  including  both 
the  science  and  art  of  transferring  titles  to 
real  estate  from  one  man  to  another. 

It  includes  the  examination  of  the  title  of  the 
alienor,  and  also  the  preparation  of  the  instru- 
ments of  transfer.  It  is,  in  England  and  Scotland, 
and,  to  a  less  extent,  in  the  United  States,  a  highly- 
artificial  system  of  law,  with  a  distinct  class  of 
practitioners.  A  profound  and  elaborate  treatise 
on  the  English  law  of  conveyancing  is  Mr.  Preston's. 
Geldart  and  Thornton's  works  are  also  important ; 
and  an  interesting  and  useful  summary  of  the 
American  law  is  given  in  "Washburn  on  Real  Prop- 
erty. See  Clerke ;  Martindale;  Morris;  Yeakle, 
Conveyancing. 

CONVEYANCING  COUNSEL  TO  THE 
COURT  OF  CHANCERY.  Certain  counsel, 
not  less  than  six  in  number,  appointed  by 
the  Lord  Chancellor,  for  the  purpose  of  as- 
sisting the  court  of  chancery,  or  any  judge 
thereof,  with  their  opinion  in  matters  of 
title  and  conveyancing.  Stat.  15  &  16  Vict. 
c.  80,  §§  40,  41. 

C0NVICIUM.  In  Civil  Law.  The  name 
of  a  species  of  slander  or  injury  uttered  in 
public,  and  which  charged  some  one  with 
some  act  contra  bonos  mores.  Vicat;  Bac. 
Abr.  Slander,  29. 

CONVICT.  One  who  has  been  condemned 
by  a  competent  court.  One  who  has  been 
convicted  of  a  crime  or  misdemeanor. 

He  differs  from  a  slave,  not  being  mere 
property  without  civil  rights,  but  having  all 
the  rights  of  an  ordinary  citizen  not  taken 
from  him  by  the  law.  While  the  law  takes 
his  liberty  and  imposes  a  duty  of  servitude 
and  observance  of  discipline,  it  does  not  de- 


ny his  right  of  personal  security  against  un- 
lawful invasion;  Westbrook  v.  State,  133 
Ga.  578,  66  S.  E.  788,  26  L.  R.  A.  (N.  S.) 
591,  18  Ann.  Cas.  295.  See  Prisoner;  Pris- 
on  Labor. 

To  condemn.  To  find  guilty  of  a  crime  or 
misdemeanor.    4  Bla.  Com.  362. 

CONVICT-MADE  GOODS.  See  Prison 
Labor. 

CONVICTED.     Attaint.     Thayer,  Evidence. 

CONVICTION  (Lat.  convictio;  from  con, 
with,  vinoire,  to  bind).  In  Practice.  That 
legal  proceeding  of  record  which  ascertains 
the  guilt  of  the  party  and  upon  which  the 
sentence  or  judgment  is  founded.  Nason  v. 
Staples,  48  Me.  123;  Com.  v.  Lockwood,  109 
Mass.  323,  12  Am.  Rep.  699;  Com.  v.  Gor- 
ham,  99  Mass.  420. 

Finding  a  person  guilty  by  verdict  of  a 
jury.  1  Bish.  Cr.  L.  §  223 ;  see  45  Alb.  L. 
J.  1. 

A  record  of  the  summary  proceedings  up- 
on any  penal  statute  before  one  or  more 
justices  of  the  peace  or  other  persons  duly 
authorized,  in  a  case  where  the  offender  has 
been  convicted  and  sentenced.  Holthouse, 
Diet. 

In  its  popular  sense  a  verdict  of  guilty  is 
said  to  be  a  conviction;  Smith  v.  Com.,  14 
S.  &  R.  (Pa.)  69.  In  its  strict  legal  sense  it 
means  judgment  on  a  plea  or  verdict  of 
guilty;  Com.  v.  McDermott,  224  Pa.  363,  73 
Atl.  427,  24  L.  R.  A.    (N.  S.)    431. 

The  first  of  the  definitions  here  given  undoubtedly 
represents  the  accurate  meaning  of  the  term,  and 
includes  an  ascertainment  of  the  guilt  of  the  party 
by  an  authorized  magistrate  in  a  summary  way,  or 
by  confession  of  the  party  himself,  as  well  as  by 
verdict  of  a  jury.  The  word  is  also  used  in  each  of 
the  other  senses  given.  It  is  said  to  be  sometimes 
used  to  denote  final  judgment.    Dwar.  2d  ed.  683. 

Summary  conviction  is  one  which  takes 
place  before  an  authorized  magistrate  with- 
out the  intervention  of  a  jury. 

Conviction  must  precede  judgment  or  sen- 
tence; In  re  McNeill,  1  Cai.  (N.  Y.)  72; 
State  v.  Cross,  34  Me.  594;  see  Faunce  v. 
People,  51  111.  311 ;  but  it  is  not  necessarily 
or  always  followed  by  it;  1  Den.  C.  C.  568; 
Ex  parte  Dick,  14  Pick  (Mass.)  88;  Kane  v. 
People,  8  Wend.  (N.  Y.)  204;  Smith  v. 
Eames,  3  Scam.  (111.)  76,  36  Am.  Dec.  515. 
Generally,  when  several  are  charged  in  the 
same  indictment,  some  may  be  convicted  and 
the  others  acquitted ;  2  Den.  C.  C.  86 ;  State 
v.  Allen,  11  N.  C.  356;  Bloomhuff  v.  State, 
8  Blackf.  (Ind.)  205;  but  not  where  a  joint 
offence  is  charged;  Stephens  v.  State,  14 
Ohio,  386;  State  v.  Mainor,  28  N.  C.  340. 
A  person  cannot  be  convicted  of  part  of  an 
offence  charged  in  an  indictment,  except  by 
statute;  Com.  v.  Newell,  7  Mass.  250;  State 
v.  Shoemaker,  7  Mo.  177;  State  v.  Bridges, 
5  N.  C.  134;  Cameron  v.  State,  13  Ark.  7124 
A  conviction  prevents  a  second  prosecution 
for  the  same  offence;  Whart  Cr.  PI.  §  456; 


CONVICTION 


673 


CONVOY 


U.  S.  v.  Keen,  1  McLean  429,  Fed.  Cas.  No. 
15,510 ;  State  v.  Benham,  7  Conn.  414 ;  Mount 
r.  State,  14  Ohio  295,  45  Am.  Dec.  542 ;  State 
v.  Norvell,  2  Yerg.  (Tenn.)  24,  24  Am.  Dec. 
458;  Solliday  v.  Com.,  28  Pa.  13.  But  the 
recovery  in  a  civil  suit,  of  a  fine,  part  of  a 
penalty  under  a  statute,  does  not  prevent 
the  prosecution  of  the  defendant  for  the  pur- 
pose of  enforcing  the  full  penalty  by  impris- 
onment; In  re  Leszynsky,  1(5  Blatchf.  9,  Fed 
Cas.  No.  8,279.  A  conviction  of  a  less  offence 
may  be  had  where  the  Indictment  charges 
a  greater  offence,  which  necessarily  includes 
the  less;  State  v.  Outerbridge,  82  N.  C.  621; 
Green  v.  State,  8  Tex.  App.  71  ;  De  Lacy  v. 
State,  8  Baxt.  (Tenn.)  401  ;  State  v.  O'Kane, 
2:;  Kan.  214;  State  v.  Scheie,  52  la.  808,  3 
N.  W.  632.  As  to  the  rule  where  the  indict- 
ment under  which  the  conviction  la  procured 
is  defective  and  liable  to  be  set  aside,  see  1 
Bish.  Cr.  L.  §§  663,  664  ;  4  Co.  44  a. 

At  common  law  conviction  of  certain 
crimes  when  accompanied  by  judgment  dis- 
qualifies the  person  convicted  as  a  witness; 
Keithler  v.  State.  10  Smedes  &  M.  (Miss.)  192. 
And  see  Dtley  v.  Merrick,  11  Mete.  (Mass.  i 
302.  But  where  a  statute  making  defendants 
witnesses  is  without  exception,  a  conviction 
rendering  such  defendant  infamous  will  not 
disqualify  him;  Delamater  v.  People,  5  I. ins. 
IX.  Y.i  332;  Newman  v.  People,  63  Barb. 
(N,  Y.)  630,  See  Com.  v.  Wright,  107  Mass. 
403. 

Summary  convictions,  bein^  obtained  by 
proceedings  in  derogation  of  the  common 
law,  must  be  obtained  strictly  in  pursuance 
of  the  provisions  of  the  statute  ;  1  Burr.  011 ; 
and  the  record  must  show  fully  that  all 
proper  steps  have  been  taken:  Welman  v. 
Poihill.  It.  M.  Charlt.  (Ga.)  235;  Singleton 
t.  Com'rs  of  Tobacco  Inspection,  2  Bay  (S. 
C.)  105;  Bigelow  v.  Stearns,  19  Johns.  (N. 
Y.)  39,  41,  10  Am.  Dec.  189;  Chase  v.  Hatha- 
way. 14  Mass.  224;  Cumming's  Case,  3  Greenl. 
(Me.)  51;  Keeler  v.  Milledge,  24  N.  J.  L.  142; 
and  especially  that  the  court  had  jurisdic- 
tion; Brackett  v.  State.  2  Tyler  (Vt)  167; 
Powers  v.  People,  4  Johns.  (N.  Y.)  292;  May- 
or, etc.,  of  City  of  Philadelphia  v.  Nell,  3 
Yeates  (Pa.)   475. 

As  to  payment  of  costs  upon  conviction, 
see  1  Bish.  Cr.  Pr.  §  1317,  n. 

C0NVIVIUM.  A  tenure  by  which  a  ten- 
ant was  bound  to  provide  meat  and  drink  for 
his  lord  at  least  once  in  the  year.     Oowell 

CONVOCATION  (Lat.  con,  together,  voco, 
to  call).  In  Ecclesiastical  Law.  The  general 
assembly  of  the  clergy  to  consult  upon  ec- 
clesiastical matters.  See  Court  of  Convo- 
cation ;  Church  of  England. 

CONVOY.  A  naval  force,  under  the  com- 
mand of  an  officer  appointed  by  government, 
for  the  protection  of  merchant-ships  and 
others,  during  the  whole  voyage,  or  such  part 
of  it  as  is  known  to  require  such  protection. 
Marsh.  Ins.  b.  1,  c.  9,  s.  5;  Park.  Ins.  388. 
Bouv.^13 


Warranties  are  sometimes  Inserted  In  policies  of 
Insurance  that  the  ship  shall  sail  with  convoy.  To 
comply  with  this  warranty,  Ave  things  are  essential: 
first,  the  ship  must  sail  with  the  regular  convoy 
appointed  by  the  government;  secondly,  she  must 
sail  from  the  place  of  rendezvous  appointed  by  the 
government;  thirdly,  the  convoy  must  be  for  the 
voyage ;  fourthly,  the  ship  insured  must  have  sail- 
ing instructions  ;  fifthly,  she  must  depart  and  con- 
tinue with  the  convoy  till  the  end  of  the  voyage,  un- 
less separated  from  It  by  necessity.  Marsh.  Ins.  b. 
1,  c.  9,  s.  5. 

CO-OBLIGOR.  One  who  is  bound  together 
with  one  or  more  others  to  fulfil  an  obliga- 
tion.   See  Parties  ;  Joinder. 

COOL  BLOOD.    Tranquillity,  or  calmnesa 

The  condition  of  one  who  has  the  calm  and 
undisturbed  use  of  his  reason.  In  cases  oi 
homicide,  it  frequently  becomes  necessary  u 
ascertain  whether  the  act  of  the  person  kill- 
ing was  done  in  cool  blood  or  not,  in  order 
ertaln  the  degree  of  his  guilt.  Bacon, 
Abr.  Murder  (B)  ;  Kel.  56;  Sid.  177;  Lev. 
180. 

COOLING -TIME.  Time  for  passion  to 
subside  and  reason  to  interpose.  Cooling- 
time  destroys  the  effect  of  provocation,  leav- 
ing homicide  murder  the  same  as  if  no  prov- 
ocation had  been  given;  1  Russ.  Cr.  667; 
Whart  Horn.  -MS;  McWhlrt's  Case,  3  Gratt. 
(Va.)  594,  -it;  Am.  Dec.  190.  See  Homicide; 
Siin--Di:rENCE. 

COPARCENARY,    ESTATES    IN.      Be 

of  which  two  or  more  persons  form  one  heir. 
l  Washb.  EL  1'.  -lit. 

The  title  to  such  an  estate  is  always  by 
descent.  The  shares  of  the  tenants  need  not 
be  equal.  The  estate  is  rare  in  America,  but 
sometimes  exists;  Manchester  v.  Dodd 
3  Ind.  360;  Pureed  v.  Wilson,  4  Gratt.  (Va.) 
16;  Rector  v.  Waugh,  IT  Mo.  13,  57  Am.  Dec. 
251;  Gilpin  v.  Hollingsworth,  3  Md.  190,  56 
Am.  Dec.  737.     See  Watk.  Conv.   115. 

COPARCENERS.  Persons  to  whom  an  es- 
tate of  inheritance  descends  jointly,  and  by 
whom  it  is  held  as  an  entire  estate.  2  Bla. 
Com.   187. 

In  the  old  English  and  the  American  sense  the 
term  includes  males  as  well  as  females,  but  in  the 
modern  English  use  Is  limited  to  females;  4  Kent 
366.  But  the  husband  of  a  deceased  CO] 
entitled  as  tenant  by  the  curtesy,  holds  as  a  co- 
parcener with  the  surviving  sisters  of  his  wife,  as 
does  also  the  heir-at-law  of  his  deceased  wife  upon 
his  own  death;    Brown,  Diet 

COPARTNER.    One    who    is    a    partner 

with  one  or  more  other  persons;  a   member 
of  a   partnership. 

COPARTNERSHIP.     A   partnership. 

COPARTNERY.  In  Scotch  Law.  The  con- 
tract  of  copartnership.     Bell,  Diet 

COPE.  A  duty  charged  on  lead  from  cer- 
tain  mines    in    England.      Blount 

C0PIA  LIBELLI  DELIBERANDA.  A  writ 
to  enable  a  man  accused  to  get  a  copy  of  tho 
libel  from  the  judge  ecclesiastical.     Cowell. 

COPULATIVE  TERM.     One  which  Ls  plac- 


COPULATIVE  TERM 


674 


COPYRIGHT 


ed  between  two  or  more  others  to  join  them 
together. 

COPY.  A  true  transcript  of  an  original 
writing. 

Exemplifications  are  copies  verified  by  the 
great  seal  or  by  the  seal  of  a  court.  1  Gilb. 
Ev.  19. 

Examined  copies  are  those  which  have 
been  compared  with  the  original  or  with  an 
official  record  thereof. 

Office  copies  are  those  made  by  officers  in- 
trusted with  the  originals  and  authorized 
for  that  purpose. 

The  papers  need  not  be  exchanged  and 
read  alternately ;  2  Taunt.  470 ;  1  Stark.  183 ; 
4  Campb.  372 ;  1  C.  &  P.  578.  An  examined 
copy  of  the  books  of  an  unincorporated  bank 
is  not  evidence  per  se;  Ridgway  v.  Bank,  12 
S.  &  R.  (Pa.)  256,  14  Am.  Dec.  681;  Vance 
v.  Reardon,  2  N.  &  M'C.  299 ;  1  Greenl.  Ev.  § 
508. 

Copies  cannot  be  given  in  evidence,  unless 
proof  is  made  that  the  original  is  lost  or  in 
the  power  of  the  opposite  party,  and,  in  the 
latter  case,  that  notice  has  been  given  him 
to  produce  the  original;  1  Greenl.  Ev.  §  50S. 

A  translation  of  a  book  is  not  a  copy ; 
Stowe  v.  Thomas,  2  Wall.  Jr.  547;  2  Am.  L. 
Reg.  229,  Fed.  Cas.  No.  13,514;  a  copy  of  a 
book  means  a  transcript  of  the  entire  work ; 
Rogers  v.  Jewett,  12  Mo.  Law  Rep.  N.  S.  339, 
Fed.  Cas.  No.  12,012. 

As  to  copies  mechanically  made  being  orig- 
inals, see  International  Harvester  Co.  of 
America  v.  Elfstrom,  101  Minn.  263,  112  N. 
W.  252,  12  L.  R.  A.  (N.  S.)  343,  118  Am.  St. 
Rep.  626,  11  Ann.  Cas.  107. 

COPYHOLD.  A  tenure  by  copy  of  court- 
roll.  Any  species  of  holding  by  particular 
custom  of  the  manor.    The  estate  so  held. 

A  copyhold  estate  was  originally  an  estate  at  the 
will  of  the  lord,  agreeably  to  certain  customs  evi- 
denced by  entries  on  the  roll  of  the  courts  baron. 
Co.  Litt.  58  a;  2  Bla.  Com.  95;  1  Poll.  &  M.  351,  357. 
It  is  a  villenage  tenure  deprived  of  its  servile  inci- 
dents. The  doctrine  of  copyhold  is  of  no  application 
in  the  United  States.  Wms.  R.  P.  257,  258,  Rawle's 
note  ;    1  Washb.  R.  P.  26.    See  Villein. 

COPYHOLDER.  A  tenant  by  copyhold 
tenure  (by  copy  of  court-roll  J.  2  Bla.  Com. 
95. 

COPYRIGHT.  The  exclusive  privilege,  se- 
cured according  to  certain  legal  forms,  of 
printing,  or  otherwise  multiplying,  publish- 
ing, and  vending  copies  of  certain  literary 
or  artistic  productions. 

According  to  the  practice  of  legislation  in  Eng- 
land and  America,  the  term  copyright  is  confined  to 
the  exclusive  right  secured  to  the  author  or  propri- 
etor of  a  writing  or  drawing,  which  may  be  multi- 
plied by  the  arts  of  printing  in  any  of  its  branches. 
Property  in  the  other  classes  of  intellectual  objects 
is  usually  secured  by  letters-patent,  and  the  inter- 
est is  called  a  patent-right.  But  the  distinction  is 
arbitrary   and   conventional. 

The  foundation  of  all  rights  of  this  description  is 
the  natural  dominion  which  every  one  has  over 
his  own  ideas,  the  enjoyment  of  which,  although 
they  are  embodied  in  visible  forms  or  characters, 
he  may,  If  he  chooses,  confine  to  himself  or  impart 


to  others.  But,  as  it  would  be  impracticable  in  civil 
society  to  prevent  others  from  copying  such  char- 
acters or  forms  without  the  intervention  of  positive 
law,  and  as  such  intervention  is  highly  expedient, 
because  it  tends  to  the  increase  of  human  culture, 
knowledge,  and  convenience,  it  has  been  the  prac- 
tice of  civilized  nations  in  modern  times  to  secure 
and  regulate  the  otherwise  insecure  and  imperfect 
right  which,  according  to  the  principles  of  natural 
justice,  belongs  to  the  author  of  new  ideas. 

This  has  been  done  by  securing  an  exclusive  right 
of  multiplying  copies  for  a  limited  period,  as  far  as 
the  municipal  law  of  the  particular  country  extends. 
But,  inasmuch  as  the  original  right,  founded  in  the 
principles  of  natural  justice,  is  of  an  imperfect 
character,  and  requires,  in  order  to  be  valuable, 
the  intervention  of  municipal  law,  the  law  of  na- 
tions has  not  taken  notice  of  it  as  it  has  of  some 
other  rights  of  property ;  and  therefore  all  copy- 
right is  the  result  of  some  municipal  regulation, 
and  exists  only  in  the  limits  of  the  country  by  whose 
legislation  it  is  established.  The  international  copy- 
right which  is  established  in  consequence  of  a  con- 
vention between  any  two  countries  is  not  an  excep- 
tion to  this  principle ;  because  the  municipal  au- 
thority of  each  nation  making  such  convention  ei- 
ther speaks  directly  to  its  own  subjects  through  the 
treaty  itself,  or  is  exerted  in  its  own  limits  by  some 
enactment  made  in  pursuance  of  the  international 
engagement. 

It  was  formerly  doubtful  in  England  whether 
copyright,  as  to  books,  existed  at  common  la»w.  The 
subject  was  much  discussed  in  4  H.  L.  c.  815.  It  is 
said  that  "the  negative  conclusion  is  now  generally 
accepted  by  lawyers."  Sir  F.  Pollock,  First  Book 
of  Jurispr.  200.  It  was  held  that  the  common  law 
copyright  for  protection  exists  in  favor  of  works 
of  literature,  art  or  science  to  this  limited  extent 
only,  that  while  they  remain  unpublished  no  per- 
son can  copyright  them  ;  10  Ir.  Ch.  Rep.  121.  followed 
in  [1908]  2  Ch.  441;  and  that  the  publisher  of  a 
copyrighted  unpublished  picture  is  liable  for  dam- 
ages for  infringement  of  the  owner's  common  law 
right  of  property  therein;     [1908]  2  Ch.  441. 

The  following  judgment  states  the  law  in  the 
United  States:  "Statutory  copyright  is  not  to  be 
confounded  with  the  common  law  right.  At  com- 
mon law  the  exclusive  right  to  copy  existed  in  the 
author  until  he  permitted  a  general  publication. 
Thus,  when  a  book  was  published  in  print,  the  own- 
er's common  law  right  was  lost.  At  common  law 
an  author  had  a  property  in  his  manuscript,  and 
might  have  an  action  against  any  one  who  under- 
took to  publish  it  without  authority.  The  statute 
created  a  new  property  right,  giving  to  the  author, 
after  publication,  the  exclusive  right  to  multiply 
copies  for  a  limited  period.  This  statutory  right 
is  obtained  in  a  certain  way  and  by  the  perform- 
ance of  certain  acts  which  the  statute  points  out. 
That  is,  the  author  having  complied  with  the  stat- 
ute and  given  up  his  common  law  right  of  exclu- 
sive duplication  prior  to  general  publication,  ob- 
tained by  the  method  pointed  out  in  the  statute  an 
exclusive  right  to  multiply  copies  and  publish  the 
same  for  the  term  of  years  named  in  the  statute. 
Congress  did  not  sanction  an  existing  right ;  it 
created  a  new  one."  Caliga  v.  Newspaper  Co.,  215 
U.  S.  1SS,  30  Sup.  Ct.  38,  54  L.  Ed.  150.  The  Act 
March  4,  1909,  expressly  reserves  the  common  law 
rights  of  an  author  of  an  unpublished  work  in  law 
or  in  equity. 

By  art.  1,  §  8,  of  the  federal  constitution, 
power  was  given  to  congress  "to  promote 
the  progress  of  science  and  the  useful  arts, 
by  securing  for  limited  times  to  authors  and 
inventors  the  exclusive  right  to  their  respec- 
tive writings  and  discoveries."  The  follow- 
ing is  a  concise  and  substantial  abstract  of 
the  Act  of  March  4,  1909,  in  effect  July  1, 
1909: 

The  exclusive  rights  secured  under  the 
act  are  to  print,  reprint,  publish,  copy  and 


COPYRIGHT 


675 


COPYRIGHT 


vend  the  copyrighted  work  ;  to  translate  into 
other  languages  or  make  other  versions,  if  a 
literary  work  ;  to  dramatize  it  if  non- 
dramatic;  to  convert  it  into  a  novel  or  other 
non-dramatic  work,  if  a  drama ;  toarrai 
adapt  it  if  it  be  a  musical  work;  to  coi 
it  if  it  be  a  model  or  a  design  for  a  work  of 
art;  to  deliver  or  authorize  its  delivery  in 
public  for  profit  if  it  be  a  lecture,  etc. ;  to 
perform  or  represent  it  publicly  if  it  be  a 
drama,  or  if  it  be  a  dramatic  work  and  not 
reproduced  for  sale,  to  vend  any  manuscript 
or  record  of  it;  to  make  any  transcription 
or  record  of  it  which  may  be  exhibited,  etc.; 
to  exhibit  it,  etc.,  in  any  manner  wh.d- 
if  it  be  a  musical  composition,  to  perform 
it  publicly  for  profit,  and  for  the  purpose  of 
publishing  and  vending  copies  to  make  any 
arrangement  or  setting  of  it  or  of  the  melo- 
dy of  it  in  any  system  of  notation  or  form 
of  record  from  which  it  may  be  reproduced, 
provided  that  the  act  so  far  as  it  secures 
copyright  controlling  the  parts  of  instru- 
ments serving  to  reproduce  mechanically 
the  musical  work  shall  not  include  the  works 
of  a  foreign  author  or  composer  unless  the 
nation  of  such  composer  grants  to  citizens  of 
the  United  States  similar  rights,  and  provid- 
ed that  whenever  the  owner  of  the  musical 
copyright  has  used  or  permitted  it,  etc.,  to 
be  used  mechanically,  any  other  person  may 
make  similar  use  of  it  upon  the  payment  of 
a  royalty  of  two  cents  on  each  part  manu- 
factured. The  reproduction  of  a  mechanical 
composition  on  coin-operating  machines  is 
not  to  be  deemed  a  public  performance  for 
profit  unless  a  fee  is  charged  for  admission 
to  the  place  where  it  occurs. 

Nothing  in  the  act  shall  be  construed  to 
annul  or  limit  the  right  of  the  author  or  pro- 
prietor of  an  unpublished  work,  at  common 
law  or  in  equity,  to  prevent  the  copying,  pub- 
lication or  use  of  his  work  without  his  con- 
sent, and  to  obtain  damages  therefor. 

By  section  4,  copyright  works  include  all 
the  writings  of  an  author;  and  by  section  5 
the  subject-matter  of  copyright  is  in  the  fol- 
lowing classes  : 

Books,  including  composite  and  cyclopedic 
works,  directories,  gazetteers,  and  other  com- 
pilations; periodicals,  including  newspapers; 
lectures,  sermons,  addresses  (prepared  for 
oral  delivery)  ;  dramatic  or  dramatico-musi- 
cal  compositions;  musical  compositions; 
maps;  works  of  art;  models  or  designs  for 
works  of  art;  reproductions  of  a  work  of 
art;  drawings  or  plastic  works  of  a  scientific 
or  technical  character;  photographs;  prints 
and  pictorial  illustrations;  but  this  classifi- 
cation shall  not  limit  the  subject-matter  as 
defined  in  section  4,  and  error  in  classifica- 
tion shall  not  invalidate  a  copyright  By 
Act  of  Aug.  24,  1912,  two  classes  were  added: 
Motion-picture  photo-plays  and  motion-pic- 
tures other  than  photo-plays. 

Compilations,  abridgments,  dramatizations, 
translations,  etc.,  of  works  in  the  public  do- 


main or  of  copyrighted  works  when  produc- 
ed with  the  consent  of  the  proprietor  of  the 
copyright  or  works  republished  with  new 
matter,  are  new  works  and  are  subjects  of 
copyright. 

.\"o  copyright  shall  subsist  in  the  text  of 
any  work  which  is  in  the  public  domal 
in  any  work  which  was  published  in  this 
country  or  a  foreign  country  prior  to  the  go- 
ing into  effect  of  the  act  and  not  already 
copyrighted  in  the  United  States,  or  In  any 
publication  of  the  United  States  government. 
Alien  authors  or  proprietors  are  within 
i  if  domiciled  within  the  United  State. 
at  the  time  of  the  first  publication,  or  if  the 
nation  of  such  alien  has  extended  reciprocal 
rights  to  citizens  of  the  United   States. 

A  copyright  is  secured  by  publication  with 
notice  of  copyright  attached  to  each  copy  of 
the  work. 

Registration  of  a  claim  to  a  copyright  is 
obtained  by  complying  with  the  terms  of  the 
act,  including  the  deposit  of  copies,  and  up- 
on such  compliance  the  register  of  copyrights 
shall  issue  the  prescribed  certificate. 

Copyrights  may  be  had  on  the  works  of  an 
author,  of  which  copies  are  not  reproduced 
for  sale,  upon  the  deposit  of  one  copy  of  such 
work,  if  it  be  a  lecture,  etc.,  or  a  dramatic 
or  musical,  etc.,  composition ;  of  a  title  and 
description,  with  one  print  taken  from  each 
scene  or  act,  if  the  work  be  a  motion-picture 
photo-play;  of  a  photographic  print  if  a  pho- 
tograph; of  a  title  and  description,  with  not 
less  than  two  prints  taken  from  different 
sections  of  a  complete  motion-picture,  if  the 
work  be  a  motion-picture  other  than  a  pho- 
to-play;  or  of  a  photograph  or  other  identi- 
fying reproduction,  if  a  work  of  art,  plastic 
work  or  drawing. 

After  securing  copyright  by  publication, 
with  notice,  two  complete  copies  of  the  best 
edition  of  the  work  shall  be  promptly  depos- 
ited in  the  copyright  office  at  Washington. 

There  are  provisions  for  the  manufacture 
of  books,  etc.,  within  the  limits  of  the  United 
States. 

"Notice  of  copyright  shall  consist  either 
of  the  word  'Copyright*  or  the  abbreviation 
'Copr.,'  accompanied  by  the  name  of  the 
right  proprietor,  and  if  the  work  be  a  print- 
ed, literary,  musical  or  dramatic  work,  the 
year  of  the  copyright,"  except  that  on  maps. 
works  of  art.  photographs,  etc..  it  may  con- 
sist of  the  letter  "C"  in  a  circle,  with  the 
initials,  monogram  or  symbol  of  the  pro- 
prietor, but  on  some  accessible  portions  of 
such  copies  the  name  must  appear.  In  a 
printed  publication,  the  copyright  notice  must 
be  on  the  title  page  or  the  page  Immediately 
following,  or,  if  a  periodical,  upon  the  first 
page  of  text  of  each  separate  number,  or  un- 
der the  title  heading,  or  in  a  musical  work 
either  on  the  title  page  or  the  first  page  of 
music. 

Copyright  is  for  twenty-eight  years   from 
the   date  of   first  publication,   whether   the 


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copyrighted  work  bears  the  author's  true 
name  or  is  published  anonymously  or  under 
an  assumed  name.  If  the  work  is  posthu- 
mous, a  periodical,  an  encyclopaedia,  or  other 
composite  work,  or  was  copyrighted  by  a  cor- 
poration (not  being  the  author's  assignee  or 
licensee)  or  by  an  employer  for  whom  a  work 
was  made  for  hire,  there  may  be  a  renewal 
for  twenty-eight  years,  if  applied  for  within 
one  year  before  expiration.  In  case  of  any 
other  copyrighted  work,  the  author,  or  if  not 
living,  his  widow  or  children,  or  failing  all 
such,  his  executors  or  next  of  kin,  may  re- 
new for  twenty-eight  years,  if  application  is 
made  more  than  one  year  before  expiration. 

Jurisdiction  of  all  suits  is  vested  in  the 
district  court  of  the  United  States  in  the 
district  in  which  the  defendant  or  his  agent 
is  an  inhabitant  or  in  which  he  may  be 
found. 

Section  25  (Act  of  March  4,  1909,  as  amend- 
ed by  Act  of  Aug.  24,  1912)  provides  for  in- 
junctions in  cases  of  infringement,  and  speci- 
fies the  measure  of  damages  in  certain  cases  ; 
also  provides  for  the  surrender  and  destruc- 
tion of  infringing  copies,  etc.  Injunctions 
may  be  served  on  the  parties  anywhere  in 
the  United  States,  and  shall  be  operative 
throughout  the  United  States  and  enforceable 
by  any  other  court  or  judge.  Such  proceed- 
ings may  be  reviewed  as  in  any  other  cases. 
No  criminal  proceeding  shall  be  maintained 
unless  commenced  within  three  years. 

Assignments  of  copyright  shall  be  record- 
ed in  the  copyright  office  within  three  months 
after  execution  if  within  the  United  States  or 
within  six  months  after  execution  without 
the  United  States ;  but  otherwise  shall  be 
void  as  against  any  mortgagee  or  subsequent 
purchaser  for  a  valuable  consideration  with- 
out notice,  whose  assignment  has  been  re- 
corded. The  assignee's  name  may  be  substi- 
tuted in  the  statutory  notice  of  copyright. 

The  fee  for  the  registration  of  any  work 
deposited  under  the  act  is  one  dollar,  which 
includes  the  certificate  of  registration  under 
seal,  except  in  cases  of  photographs,  for 
which  the  fee  is  fifty  cents  when  a  certifi- 
cate is  not  demanded. 

The  date  of  publication  is  the  earliest  day 
when  copies  of  the  first  authorized  edition 
were  placed  on  sale  or  publicly  distributed. 
"Author"  includes  an  employer  in  the  case 
of  works  made  for  hire. 

Oratorios,  cantatas,  etc.,  may  be  perform- 
ed for  charity  by  public  schools,  church 
choirs  or  vocal  societies,  when  obtained  from 
a  public  library,  or  from  a  public  school, 
church  choir  or  vocal  society  library,  with- 
out constituting  infringement. 

The  prohibition  of  the  importation  of 
piratical  copies  does  not  apply:  To  works  in 
raised  characters  for  the  blind;  to  foreign 
newspapers  or  magazines,  although  contain- 
ing copyright  matter  printed  or  reprinted  by 
authority  of  the  copyright  proprietor,  unless 
they  contain  also  copyright  matter  printed 


or  reprinted  without  such  authorization;  to 
an  authorized  edition  of  a  book  in  a  foreign 
language,  of  which  only  an  English  transla- 
tion has  been  copyrighted  here;  to  books 
published  abroad,  with  the  author's  author- 
ity, when  imported  one  copy  at  a  time  for  in- 
dividual use  and  not  for  sale  (but  excepting 
a  foreign  reprint  of  a  book  by  an  American 
author  copyrighted  here) ;  or  to  books  import- 
ed for  the  United  States  or  for  libraries,  etc. ; 
or  when  such  book  is  part  of  a  library 
bought  en  bloc;  or  when  brought  personally 
into  the  United  States. 

Cases  in  the  former  revision  under  former 
acts  are  retained  as  likely  to  be  useful  under 
the  act  of  1909. 

What  may  be  copyrighted.  Private  letters 
may  be  copyrighted  by  their  author ;  Folsom 
v.  Marsh,  2  Sto.  100,  Fed.  Cas.  No.  4,901; 
and  so  may  abstracts  of  title;  Banker  v. 
Caldwell,  3  Minn.  94  (Gil.  46). 

The  compilations  of  existing  material  se- 
lected from  common  sources  arranged  and 
combined  in  original  and  useful  form  are 
the  subject  of  a  copyright,  whether  it  con- 
sists wholly  of  selected  matter  or  partly  of 
original  composition;  Drone,  Copyr.  152. 
Thus:  Dictionaries ;  2  Sim.  &  Stu.  1 ;  gazet* 
teers ;  5  Beav.  6 ;  road  and  guide  books ;  1 
Drew.  353;  directories;  L.  R.  1  Eq.  697; 
calendars;  12  Ves.  270;  catalogues;  L.  R.  18 
Eq.  444  ;  trade  catalogues  ;  Da  Prato  Statu- 
ary Co.  v.  Guiliani  Statuary  Co.,  189  Fed. 
90  ;  mathematical  tables ;  1  Russ.  &  Myl.  73  ;' 
a  list  of  hounds ;  L.  R.  9  Eq.  324 ;  a  collec- 
tion of  statistics ;    L.  R.  3  Eq.  718. 

An  abridgment,  one  not  a  mere  transcript 
of  the  part  of  an  original,  may  be  copyright- 
ed; Gray  v.  Russell,  1  Story  11,  Fed.  Cas. 
No.  5,728 ;  so  may  a  digest ;  Drone,  Copyr. 
15S.  One  who  prepares  reports  of  decided 
cases  may  obtain  a  valid  copyright  for  the 
parts  of  which  he  is  the  author  or  compiler; 
Wheaton  v.  Peters,  8  Pet.  (U.  S.)  591,  8  L. 
Ed.  1055;  Little  v.  Gould,  2  Blatchf.  165, 
Fed.  Cas.  No.  8,394 ;  Paige  v.  Banks,  13  Wall. 
(U.  S.)  60S,  20  L.  Ed.  709;  but  the  reporter 
is  not  entitled  to  a  copyright  in  the  opinion 
of  the  court,  even  though  he  took  it  down 
from  the  lips  of  the  judge,  nor  in  the  head 
notes  when  prepared  by  the  judge ;  Chase  v. 
Sanborn,  6  U.  S.  Pat.  Off.  Gaz.  932,  Fed.  Cas. 
No.  2,62S. 

The  collection  and  arrangement  of  adver- 
tisements in  a  trade  directory  are  the 
subject  of  copyright,  though  each  single  ad- 
vertisement is  not ;  [1S93]  1  Ch.  21S.  A  com- 
pilation made  from  voluminous  public  docu- 
ments may  be  copyrighted ;  Hanson  v.  Jac- 
card  Jewelry  Co.,  32  Fed.  202.  A  compilation 
of  prices  and  quotations  on  the  stock  ex- 
change, printed  on  sheets  and  issued  daily 
as  a  newspaper;  Exchange  Telegraph  Co.  v. 
Gregory  &  Co.,  73  Law  Times  Rep.  120. 

A  photographer,  who  makes  no  charge  for 
photographing  an  actress  in  her  public  char- 
acter, has  the  right  to  secure  a  copyright  for 


COPYRIGHT 


677 


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his  own  exclusive  benefit;  Press  Pub.  Co.  v. 
Falk,  59  Fed.  324;  and  vvbere  be  produces 
by  an  arrangement  of  lights  and  shadows,  an 
original  effect  representing  his  conception  of 
her  in  a  certain  character,  he  is  entitled  to 
the  protection  of  the  copyright  laws;  Falk 
v.  Donaldson,  57  Fed.  32.  So  of  an  artistic 
photograph  of  a  woman  and  child  ;  Burrow- 
Giles  Lithographic  Co.  v.  Sarony,  111  U.  S. 
53,  4  Sup.  Ct.  279,  28  L.  Ed.  349;  Falk  v. 
Brett  Lithographing  Co.,  48  Fed.  GTS. 

A  "book"  may  be  printed  on  one  sheet; 
Clayton  v.  Stone,  2  Paine  383,  Fed.  Cas.  No. 
2,872;  Drury  v.  Ewing,  1  Bond  540,  Fed. 
Cas.  No.  4,095.  As  a  general  rule  a  printed 
publication  is  a  book  within  the  copyright 
laws  when  its  contents  are  complete  in  them- 
selves, deal  with  a  single  subject,  need  no 
continuation,  and  have  appreciable  size; 
Smith  v.  Hitchcock,  226  U.  S.  53,  33  Sup.  Ct. 
6,  57  L.  Ed.  119. 

A  diagram  with  directions  for  cutting 
ladies'  garments  printed  on  a  single  sheet 
of  paper  is  a  "book" ;  Drury  v.  Ewing,  1 
Bond  540,  Fed.  Cas.  No.  4,095;  a  manufac- 
turer of  women's  wearing  apparel  issued  a 
book  containing  illustrations  of  the  latest 
modes  and  information  as  to  materials  and 
prices ;  it  was  held  a  proper  subject  of  copy- 
right, though  used  for  advertisements  ;  Na- 
tional Cloak  &  Suit  Co.  v.  Kaufman,  189  Fed. 
215 ;  and  so  is  a  cut  in  an  illustrated  newspa- 
per; Harper  v.  Shoppell,  26  Fed.  519;  infor- 
mation in  a  guide-book  may  be  copyrighted; 
L.  R.  1  Eq.  697. 

A  scene  in  a  play  representing  a  series  of 
dramatic  incidents,  but  with  very  little  dia- 
logue, may  be  copyrighted ;  Daly  v.  Webster, 
56  Fed.  4S3,  4  C.  C.  A.  10;  so  of  the  intro- 
duction, chorus,  and  skeleton  of  a  "topical 
song" ;  Henderson  v.  Tompkins,  60  Fed.  75S, 
A  manufacturer  of  records  for  mechanical- 
ly producing  a  musical  composition  may  en- 
Join  another  from  copying  his  records; 
^Eolian  Co.  v.  Music  Roll  Co.,  196  Fed.  926. 
When  a  new  edition  differs  substantially 
from  the  former  one,  a  new  copy  right  may 
be  acquired,  provided  the  alteration  shall 
materially  affect  the  work;  Gray  v.  Russell, 
1  Sto.  11,  Fed.  Cas.  No.  5,728;  Bonks  v.  Mc- 
Divitt,  13  Blatchf.  163,  Fed.  Cas.  No.  961. 
New  editions  of  a  copyright  work  are  pro- 
tected by  the  original  copyright,  but  not  new 
matter ;  Lawrence  v.  Dana,  4  Cliff.  1,  Fed. 
Cas.  No.  8,136;  Farmer  v.  Lithographing  Co., 
1  Flipp.  228,  Fed.  Cas.  No.  4,651. 

What  may  not  he  copyrighted.  No  copy- 
right can  be  obtained  on  racing  tips  publish- 
ed in  a  copyrighted  newspaper;  [1895]  2 
Ch.  29;  nor  on  a  daily  price  current;  Clay- 
ton v.  Stone,  2  Paine  382,  Fed.  Cas.  No.  2,872  ; 
nor  on  a  blank;  Baker  v.  Seldeu,  101  U.  S. 
99,  25  L.  Ed.  841 ;  nor  cuts  contained  in  a 
trade  catalogue;  J.  L.  Mott  Iron  Works  v. 
Clow,  72  Fed.  108. 

Where  a  judge  of  a  supreme  court  of  a 


state  prepares  the  opinion  of  the  court,  the 
statement  of  the  case,  and  the  syllabus,  and 
the  reporter  of  the  court  takes  out  a  copy- 
right in  his  own  name  for  the  state,  the 
copyright  is  invalid;  Banks  v.  Manchi 
128  U.  S.  244,  9  Sup.  Ct.  36,  32  L.  Ed  425. 
Where  a  reporter  of  decisions  is  employed  on 
condition  that  his  reports  shall  belong  to  the 
state,  he  is  not  entitled  to  a  copyright;  Lit- 
tle v.  Gould,  2  Blatchf.  165,  Fed.  Cas.  No. 
8,394;  Banks  &  Bros.  v.  Pub.  Co.,  27  Fed. 
50. 

Publications  of  an  improper  kind  will  not 
he  protected  by  the  courts;  Martinetti  v. 
Maguire,  1  Deady  (U.  S.)  223,  Fed.  Cas.  No. 
9,173. 

An  author  cannot  acquire  any  right  to  the 
protection  of  his  literary  products  by  using 
an  assumed  name  or  pseudonym.  Without 
the  protection  of  a  copyright,  his  work  is 
dedicated  to  a  public  when  published;  The 
•Mark  Twain"  Case,  14  Fed.  72S. 

The  compilation  of  the  statutes  of  a  state 
may  be  so  original  as  to  entitle  the  author  to 
a  copyright,  but  he  cannot  obtain  one  for  the 
laws  alone,  and  the  legislature  of  the  state 
cannot  confer  any  such  exclusive  privilege 
upon  him;  Davidson  v.  Wheelock,  27  Fed. 
61.  Such  a  compilation  of  statutes  may  be 
copyrighted  as  to  the  manner  in  which  the 
work  was  done,  but  not  as  to  the  laws  alone ; 
id. 

A  stage  dance  illustrating  the  poetry  of 
motion  by  a  series  of  graceful  movements, 
etc.,  is  not  a  dramatic  composition  within 
the  act;  Fuller  v.  Bemis,  50  Fed.  920.  The 
copyright  of  a  book  describing  a  new  system 
of  stenography  does  not  protect  the  system 
apart  from  the  language  by  which  it  is  ex- 
plained;   Griggs  v.  Porrin,  49  Fed.  15. 

An  opinion  is  not  the  subject-matter  of 
copyright;  nor  is  a  printed  expression  of  it, 
unless  it  amount  to  a  literary  composition; 
[1S95]  2  Ch.  29. 

As  to  notice.  In  the  notice  of  copyright  of 
a  photograph  the  abbreviation  "  '94,"  repre- 
senting the  year,  is  a  substantial  compliance 
with  the  act;  Snow  v.  Mast,  65  Fed.  995. 
The  following  notice  on  a  map:  "Copyright 
entered  according  to  Act  of  Congress.  1889, 
by  T.  C.  Hefel,  Civil  Engineer,"  was  held 
sufficient,  since  it  differed  from  the  prescrib- 
ed formula  only  by  including  words  which 
were  surplusage;  Hefel  v.  Land  re.,  54  Fed. 
179.  The  words  "1889.  Copyrighted 
J.  Falk,  New  York,"  were  held  sufficient; 
Falk  v.  Schumacher,  48  Fed.  222;  Falk 
v.  Seidenberg,  48  Fed.  224.  The  words 
"Copyrighted  1891.  AH  rights  reserved," 
were  held  not  a  sufficient  notice  of  copyright ; 
Osgood  v.  Instrument  Co.,  69  Fed.  291. 

The  initial  of  the  Christian  name  is  suffi- 
cient if  the  full  surname  be  given;  Burrow- 
Giles  Lithographic  Co.  v.  Sarony,  111  0.  S. 
53,  i  Sup.  Ct  279,  2S  L.  Ed.  349.  Where  the 
printed  title  was  deposited  by  E.  B.  Meyers 


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678 


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&  Chandler  and  the  printed  notice  of  the  en- 
try of  the  copyright  showed  that  the  copy- 
right was  entered  by  E.  B.  Meyers  alone,  it 
was  held  immaterial;  Callaghan  v.  Myers, 
128  U.  S.  657,  9  Sup.  Ct.  177,  32  L.  Ed.  547. 

A  copyright  may  be  taken  in  the  name  of 
a  trustee  for  the  benefit  of  some  third  party 
who  is  the  author  or  proprietor ;  Hanson  v. 
Jewelry  Co.,  32  Fed.  202 ;  Black  v.  Henry  G. 
Allen  Co.,  42  Fed.  618,  9  L.  R.  A.  433;  id., 
56  Fed.  764. 

One  who  does  business  under  a  fictitious 
partnership  name  may  receive  a  copyright 
under  that  name ;  Scribner  v.  Henry  G.  Al- 
len Co.,  49  Fed.  S54.  An  author  of  an  ar- 
ticle intended  for  a  foreign  encyclopaedia  ob- 
tained a  copyright  therefor  under  an  agree- 
ment with  the  publisher.  It  was  held  that 
the  agreement  was  a  license  only  to  use  the 
article,  and  that  the  copyright  was  properly 
in  the  author's  name;  Black  v.  Henry  G. 
Allen  Co.,  56  Fed.  764.  An  author  of  a  paint- 
ing, who,  not  being  a  subject  of  a  foreign  state 
with  which  the  United  States  has  copyright 
relations,  is  excluded  from  benefit  of  copy- 
right, cannot  convey  such  right  to  a  person 
whose  citizenship  is  within  the  statute ;  Bong 
v.  Art  Co.,  214  U.  S.  236,  29  Sup.  Ct.  628,  53 
L.  Ed.  979,  16  Ann.  Cas.  1126. 

As  to  what  will  constitute  a  sufficient 
publication  to  deprive  an  author  of  his  copy- 
right: The  public  performance  of  a  play  is 
not  such  publication;  Boucicault  v.  Wood,  2 
Biss.  34,  Fed.  Cas.  No.  1,693;  Boucicault  v. 
Hart,  13  Blatchf.  47,  Fed.  Cas.  No.  1,692; 
the  private  circulation  of  even  printed  copies 
of  a  book  is  not;  Bartlett  v.  Crittenden,  5 
McLean  32,  Fed.  Cas.  No.  1,076;  Keene  v. 
Wheatley  &  Clarke,  9  Am.  L.  Reg.  33,  Fed. 
Cas.  No.  7,644;  1  Macn.  &  G.  25;  the  deposit 
of  a  chart  with  the  secretary  of  the  navy 
with  an  express  agreement  that  it  was  not 
to  be  published,  is  not;  Blunt  v.  Patten,  2 
Paine,  393,  Fed.  Gas.  No.  1,579;  see  generally, 
Palmer  v.  De  Witt,  47  N.  Y.  532,  7  Am.  Rep. 
488.  Publication  of  a  manuscript  constitutes 
a  dedication  to  the  public;  Carte  v.  Duff,  25 
Fed.  1S3;  Tompkins  v.  Halleck,  133  Mass. 
32,  43  Am.  Rep.  480;  the  sale  of  a  picture 
unconditionally  carries  with  it  the  right  of 
making  copies  of  it  and  the  publication 
thereof;  Parton  v.  Prang,  3  Cliff.  537,  Fed. 
Cas.  No.  10,784.  A  picture  which  is  public- 
ly exhibited  without  having  inscribed  upon 
some  visible  portion  of  it,  or  upon  the  sub- 
stance on  which  it  was  mounted,  the  notice 
required  by  the  statute,  is  published;  Pierce 
&  Bushnell  Mfg.  Co.  v.  Werckmeister,  72 
Fed.  54,  18  C.  C.  A.  431.  But  entering  an 
original  painting  with  the  copyright  reserved 
at  an  exhibition  of  the  Royal  Academy 
whose  by-laws  prohibit  copying,  was  held 
not  such  a  publication ;  American  Tobacco 
Co.  v.  Werckmeister,  207  U.  S.  284,  28  Sup. 
Ct.  72,  52  L.  Ed.  208,  12  Ann.  Cas.  595. 

The  remedy  for  an  infringement  of  copy- 
right is  threefold.     By  an  action  of  debt  for 


certain  penalties  and  forfeitures  given  by 
the  statute.  By  an  action  on  the  case  at 
common  law  for  damages,  founded  on  the 
legal  right  and  the  injury  caused  by  the 
infringement.  The  action  must  be  case,  and 
not  trespass;  Atwill  v.  Ferrett,  2  Blatchf. 
39,  Fed.  Cas.  No.  640.  By  a  bill  in  equity 
for  an  injunction  to  restrain  the  further  in- 
fringement, as  an  incident  to  which  an  ac- 
count of  the  profits  made  by  the  infringer 
may  be  ordered  by  the  court;  2  Morg.  Lit. 
706;  6  Ves.  705;  8  id.  323;  9  id.  341;  1  Russ. 
&  M.  73,  159;  1  Y.  &  C.  197;  2  Hare  560; 
though  it  cannot  embrace  penalties ;  Stevens 
v.  Cady,  2  Curt.  C.  C.  200,  Fed.  Cas.  No, 
13,395 ;  Atwill  v.  Ferrett,  2  Blatchf.  39,  Fed. 
Cas.  No.  640. 

An  injunction  may  go  against  an  entire 
work  or  a  part;  2  Russ.  393;  Emerson  v. 
Davies,  3  Sto.  768,  Fed.  Cas.  No.  4,436;  2 
Beav.  6;  2  Brown,  Ch.  80;  though  the  court 
will  not  interfere  where  the  extracts  are 
trifling;  2  Swanst.  428;  1  Russ.  &  M.  73; 
2  id.  247. 

The  remedies  of  forfeiture  and  penalty 
and  of  injunction  given  to  the  owner  of  a 
copyrighted  map  under  the  former  act  in. 
case  of  infringement  are  exclusive  and  pre- 
clude any  resort  to  an  action  at  law  to  re- 
cover damages  sustained ;  Globe  Newspaper- 
Co.  v.  Walker,  210  U.  S.  356,  28  Sup.  Ct. 
726,  52  L.  Fid.  1096. 

An  injunction  to  restrain  the  infringement, 
of  the  rights  of  the  owner  of  one  directory 
by  another  will  be  limited  to  the  extent  to. 
which  the  two  books  are  identical;  List 
Pub:  Co.  v.  Keller,  30  Fed.  772. 

Where  the  extracts  of  a  copyrighted  work 
are  scattered  through  the  defendant's  book 
in  such  manner  that  the  two  cannot  be  dis- 
tinguished and  separated,  the  court  may  en- 
join the  defendant's  book  as  a  whole,  but  if 
the  matters  can  be  separated  the  injunction 
should  extend  only  to  the  copyrighted  mat- 
ter; Farmer  v.  Elstner,  33  Fed.  494.  Where 
the  author's  pirated  paragraphs  of  a  digest 
can  be  separated  from  paragraphs  not  sub- 
ject to  criticism,  the  injunction  should  be 
restricted  to  the  infringing  paragraphs,  even 
though  it  might  consume  a  decade  to  ex- 
amine the  paragraphs  of  the  digest  and  com- 
pare  them.  This  will  not  relieve  the  com- 
plainant from  the  burden  of  proving  his 
case;  West  Pub.  Co.  v.  Pub.  Co.,  64  Fed. 
360,  25  L.  R.  A.  441.  Although  the  eourt  is 
not  convinced  that  a  compilation  which 
wrongfully  appropriates  extracts  from  the 
plaintiff's  copyrighted  work  will  injure  its 
sale,  yet  an  injunction  in  a  proper  case  may 
be  granted.  Actual  pecuniary  damage  is  not 
the  sole  right  to  enjoining  violation  of  copy- 
right; Farmer  v.  Elstner,  33  Fed.  494. 

The  practice  of  one  newspaper  copying 
literary  matter  from  another  is  no  defence 
to  an  action  for  the  infringement  of  a  copy- 
right; [1892]  3  Ch.  4S9,  where  the  cases  are 
collected. 


COPYIUGIIT 


679 


COPYRIGHT 


There  may  be  a  piracy:  1st.  By  reprint- 
ing the  whole  or  part  of  a  book  verbatim. 
The  mere  quantity  of  matter  taken  from  a 
book  is  not  of  itself  a  test  of  piracy;  3  M. 
&  C.  737;  the  court  will  look  at  the  value 
or  quality  more  than  the  quantity  taken ; 
Gray  v.  Russell,  1  Sto.  11,  Fed.  Cas.  No. 
5,728.  Extracts  and  quotations  fairly  made, 
and  not  furnishing  a  substitute  for  the  book 
itself,  or  operating  to  the  injury  of  the 
author,  are  allowable;  17  Yes.  422;  1  Campb. 
94;  Aml.l.  694;  2  Swanat  428;  Folsom  v. 
Marsh,  2  Sto.  100,  Fed.  Cas.  No.  4,901;  2 
Russ.  383;  2  Beav.  6;  11  Him.  31.  A  "fair 
use"  of  a  book,  by  way  of  quotation  or  oth- 
erwise, is  allowable;  Lawrence  v.  Dana,  4 
Cliff.  1,  Fed.  Cas.  No.  8,136;  L.  R.  8  Ex. 
1;  L.  R.  18  Eq.  444;  L.  R.  5  Ch.  251;  it  may 
be  for  purposes  of  criticism,  but  so  as  not 
to  supersede  the  work  itself;  Lawrence  v. 
Dana,  4  Cliff.  1,  Fed.  Cas.  No.  S.13G:  L.  R. 
8  Ex.  1;  Harper  v.  Shoppell,  26  Fed.  519;  or 
in  a  later  work  to  the  extent  of  fair  quo- 
tation ;  11  Sim.  31 ;  Folsom  v.  Marsh,  2  Sto. 
100,  Fed.  Cas.  No.  4.901 ;  in  compiling  a  di- 
rectory, but  not  so  as  to  save  the  compiler 
all  independent  labor;  List  Pub.  Co.  v.  Kel- 
ler, 30  Fed.  771';  L.  R.  1  Eq.  G!>7 ;  7  id.  34; 
id.  5  Ch.  279;  a  descriptive  catalogue  of 
fruit,  etc.;  L.  R.  IS  Eq.  444;  a  book  on  eth- 
nology; L.  R.  5  Ch.  251;  a  dictionary,  pro- 
vided the  new  book  may  fairly  be. considered 
a  new  work;  31  L.  T.  R.  16.  'See  West  Pub. 
Co.  v.  Pub.  Co.,  64  Fed.  360,  25  L.  R.  A. 
441,  for  a  full  discussion. 

2d.  By  imitating  or  copying,  with  color- 
able alterations  and  disguises,  assuming  the 
appearance  of  a  new  work.  Where  the  re- 
semblance does  not  amount  to  identity  of 
parallel  passages,  the  criterion  is  whether 
there  is  such  similitude  and  conformity  be- 
tween the  two  books  that  the  person  who 
wrote  the  one  must  have  used  the  other  as 
a  model,  and  must  have  copied  or  imitated 
it;  see  5  Yes.  24;  16  id.  2G9,  422;  2  Brown, 
Ch.  SO;  2  Russ.  385;  2  S.  &  S.  6;  1  Campb. 
94;  Cray  v.  Russell,  1  Sto.  11,  Fed.  Cas. 
No.  5,728;  Emerson  v.  Davies,  3  Sto.  76S, 
Fed.  Cas.  No.  4,436;  Webb  v.  Powers,  2  W. 
&  M.  497,  Fed.  Cas.  No.  17,323;  Blunt  v. 
Patten,  2  Paine  393,  Fed.  Cas.  No.  1,579, 
which  was  the  case  of  a  chart.  A  fair  and 
Ijona  fide  abridgment  has  in  some  cases 
been  held  to  be  no  infringement  of  the  copy- 
rigbt;  1  Morg.  Lit.  319,  343;  2  Atk.  141;  1 
P.rown,  Ch.  451;  5  Ves.  709;  Lawrence  v. 
Dana,  4  Cliff.  1,  Fed.  Cas.  No.  S.136;  1  Y. 
&  C.  29S ;  Story  v.  Holcombe,  4  McLean  306, 
Fed.  Cas.  No.  13,497;  Folsom  v.  Marsh,  2 
Sto.  105,  Fed.  Cas.  No.  4,901;  2  Kent  382 ; 
see  3  Am.  L.  Reg.  129.  But  Drone,  Copyright 
440,  maintains  the  contrary  doetrine.  A 
booklet  entitled  "Opera  Stories,"  consisting 
of  mere  fragmentary  statements  of  the  story 
and  characters  of  the  operas,  taken  from 
descriptions  other  than  librettos,  is  not  an 


infringement  of  the  copyrights  on  the  li- 
brettos; Ricordi  &  Co.  v.  Mason,  201  Fed. 
182. 

"The  true  test  of  piracy,  then,  is  not 
whether  a  composition  is  copied  in  the  same 
language  or  the  exact  words  of  the  original, 
but  whether  in  substance  it  i<  reprod 
not  whether  the  whole  or  whether  a  mate- 
rial part  is  taken.  In  this  view  of  the  sub- 
ject it  is  no  defence  of  piracy  that  the 
entitled  to  protection  has  not  been  copied 
literally;  that  it  has  been  translated  into 
another  Language;    that  it  has  rama- 

ti/.ed ;  that  the  whole  has  not  been  taken; 
that  it  lias  been  abridged;  that  it  is  repro- 
duced in  a  new  and  more  useful  form.  The 
controlling  question  always  is  whether  the 
substance  of  the  work  is  taken  without  au- 
thority;"   Drone,  Copyr.  385. 

An  a  in  her  may  resort  with  full  liberty  to 
the  common  sources  of  information  and 
make  use  of  the  common  materials  open  to 
all.  but  his  work  must  be  the  result  of  his 
own  independent  labor;  Simms  v.  Stanton, 
75  Fed.  6. 

A  subsequent  compiler  of  a  directory  is 
only  required  to  do  for  himself  that  which 
the  first  compiler  has  done.  lie  may  not  use 
a  previous  compilation  to  save  himself 
trouble,  though  he  do 'so  but  to  a  very  lim- 
ited extent;  but  he  may  use  the  former  work 
to  verify  the  spelling  of  names  or  the  cor- 
rectness of  the  addresses;  List  Pub.  Co.  v. 
Keller,  30  Fed.  772. 

The  compiler  of  a  digest  may  compare 
notes,  abstracts,  and  paragraphs  from  opin- 
ions of  the  courts  and  from  syllabi  prepared 
by  the  courts,  and  may  digest  such  opinions 
and  syllabi  from  printed  copies  aid  pub- 
lished in  a  copyrighted  system,  but  he  may 
not  copy  the  original  work  of  the  reporter, 
or  use  his  work  in  any  way  in  order  to  light- 
en his  labors,  though  he  may  use  it  to  verify 
his  own  accuracy,  to  detect  errors,  etc. ; 
West  Pub.  Co.  v.  Pub.  Co.,  64  Fed.  3 
L.  R.  A.  441.  The  author  of  a  law  book 
may  copy  the  citations  of  a  prior  author  if 
he  examines  and  verifies  the  cases  cited  and 
may  use  them  in  the  same  order  and  with 
additions  and  subtractions;  White  v.  Ben- 
der, 1S5  Fed.  921.    A  copyrighted  law  1 k 

is  not  infringed  by  the  collection  by  another 
author  of  the  cases  cited  therein  for  use  in 
another  publication;    Thompson  Co.  v.  Law 
Book  Co..  122  Fed.  922,  59  C.  C.  A.  1  i 
L.  R.  A.  007. 

The  singing  of  a  single  verse  and  chorus 
of  a  copyrighted  son-  without  musical  ac- 
companiment, in  imitation  of  the  voice,  p  sl- 
ures  and  mannerisms  of  another,  is  not  an 
Infringement;  Green  v.  Minzensheimer,  177 
Fed.  286;  but  contra,  where  one  sings  an 
entire  copyrighted  song  with  musical  ac- 
companiment she  is  guilty  of  Infringement, 
though  she  intends  merely  to  mimic  anoth- 
er;   Green  y.  Minzensheimer,  177  Fed.  287. 


COPYRIGHT 


6S0 


COPYRIGHT 


Mere  fragmentary  scenes  of  various  operas 
do  not  infringe  the  copyrighted  librettos; 
Ricordi  &  Co.  v.  Mason,  201  Fed.  184. 

Moving  pictures  depicting  the  story  of  an 
author's  work  are  a  dramatization  of  it  and 
infringe  the  copyright ;  Kalem  Co.  v.  Harp- 
er Bros.,  222  U.  S.  55,  32  Sup.  Ct.  20,  56  L. 
Ed.  92,  Ann.  Cas.  1913A,  12S5. 

A  translation  has  been  held  not  to  be  a  vi- 
olation of  the  copyright  of  the  original; 
Stowe  v.  Thomas,  2  Wall.  Jr.  547,  Fed.  Cas. 
No.  13,514.  The  correctness  of  this  decision 
is  questioned  in  Drone,  Copyr.  455. 

When  the  infringement  of  a  copyright  is 
established  the  question  of  intent  is  imma- 
terial ;   Fishel  v.  Lueckel,  53  Fed.  499. 

A  copyrighted  compilation,  comprising 
lists  of  trotting  and  pacing  horses  with  their 
speed,  is  infringed  by  one  who  uses  the  table 
to  make  up  records  of  horses  of  2.30  or 
better,  notwithstanding  the  fact  that  the 
latter  compilation  might  have  been  made 
by  the  defendant  from  other  publications 
valuable  to  him ;  American  Trotting  Regis- 
ter Ass'n  v.  Gocher,  70  Fed.  237. 

Damages.  Where  the  infringing  material 
is  so  intermingled  with  the  rest  of  the  con- 
tents as  to  be  almost  incapable  of  separa- 
tion, the  infringer  is  liable  for  the  entire 
profit  realized  from  the  book ;  Callaghan  v. 
Myers,  128  U.  S.  617,  9  Sup.  Ct.  177,  32  L. 
Ed.  547 ;  National  Hat  Pouncing  Mach.  Co. 
v.  Hedden,  148  U.  S.  488,  13  Sup.  Ct.  680,  37 
L.  Ed.  529.  Where  the  infringing  publica- 
tion uses  only  a  part  of  the  original  matter 
and  is  issued  in  a  cheaper  form,  the  meas- 
ure of  damages  is  the  profit  realized  by  the 
infringer,  and  not  what  the  copyright  own- 
er would  have  realized  by  a  sale  of  an  equal 
number  of  the  original  copyright  work ; 
Scribner  v.  Clark,  50  Fed.  473. 

The  owner  of  a  copyright  who  wishes  to 
sell  the  published  work  directly  and  only  to 
individual  subscribers,  through  canvassers 
employed  by  him,  will  be  protected  from 
interference  by  other  dealers  who  have  sur- 
reptitiously obtained  copies  without  his  con- 
sent and  offered  them  for  sale ;  Bill  Pub.  Co. 
v.  Smythe,  27  Fed.  914.  But  it  has  been 
held  that  the  owner  of  a  copyright  trans- 
ferring the  title  of  copyrighted  books  under 
an  agreement  restricting  their  use,  cannot, 
under  the  copyright  statutes,  restrain  sales 
of  books  in  violation  of  the  agreement ;  Har- 
rison v.  Maynard,  Merrill  &  Co.,  61  Fed.  6S9, 
10  C.  C.  A.  17;  the  remedy  is  confined  to 
the  breach  of  the  contract ;   id. 

A  notice  on  a  copyright  book  that  it  must 
not  be  sold  for  less  than  a  specified  price 
does  not  reserve  any  right  to  the  copyright 
owner,  nor  limit  the  absolute  title  acquired 
by  purchaser;  Bobbs-Merrill  Co.  v.  Straus, 
139  Fed.  155,  affirmed  in  147  Fed.  15,  77  C.  C. 
A.  607,  and  210  U.  S.  339,  28  Sup.  Ct.  722, 
52  L.  Ed.  1086. 

The  words  "Webster's  Dictionary"  are  pub- 
lie  property  by  reason  of  the  expiration  of 


the  copyright  in  the  dictionary ;  Merriam  v. 
Clothing  Co.,  47  Fed.  411. 

One  who  buys  copies  of  a  publication 
which  violates  copyright  and  sells  them 
again  is  liable  for  the  profit  on  his  sales; 
Myers  v.  Callaghan,  24  Fed.  636. 

Copyright  is  based  on  statute,  while  un- 
fair competition,  except  as  affected  by  legis- 
lative enactment  in  connection  with  patents, 
trade-marks,  etc.,  is  dependent  on  abstract 
principles  of  law.  Copyright  relates  to  the 
printed  material  of  a  publication,  while  un- 
fair competition  may  be  concerned  with  any 
article  of  trade  whether  having  words  or 
letters  in  its  composition  and  appearance  or 
not;  West  Pub.  Co.  v.  Edward  Thompson 
Co.,  176  Fed.  833,  100  C.  C.  A.  303. 

The  British  copyright  code  went  into  ef- 
fect July  1,  1912.  Australia  adopted  a  code 
in  1905  and  Canada  in  1911. 

See  Litebaey  Property;  Bowker,  Copy- 
right. 

International  Copyright.  Under  the  reci- 
procity clause  of  the  Act  of  March  4,  1909, 
the  President  made  proclamations  April  9, 
1910,  that  the  following  countries  were  en- 
titled to  all  the  benefits  of  the  acts,  except- 
ing those  under  section  1  (e):  Austria,  Bel- 
gium, Chile,  Costa  Rica,  Cuba,  Denmark, 
France,  Germany,  Great  Britain  and  posses- 
sions, Italy,  •  Mexico,  Netherlands  and  pos- 
sessions, Norway,  Portugal,  Spain  and 
Switzerland.  A  like  proclamation  was  made 
as  to  Luxemburg,  June  29,  1910 ;  as  to 
Sweden,  May  26,  1911;  as  to  Tunis,  Octo- 
ber 4,  1912. 

The  benefits  of  the  act  as  to  section  1  (e) 
were  extended  by  proclamation:  to  Ger- 
many, December  S,  1910 ;  Belgium,  June  14, 
1911;  Cuba,  November  27,  1911;  Luxem- 
burg, June  14,  1911 ;  and  Norway,  June  14, 
1911. 

A  copyright  convention  with  Hungary 
went  into  effect  October  15,  1912. 

Tbe  United  States,  as  a  party  only  to  the 
Pan-American  Union  and  not  a  member  of 
the  International  Copyright  Union  under  the 
Berne-Berlin  Conventions,  has  not  .secured 
for  its  citizens  general  rights  of  copyright 
in  other  countries,  without  repetition  of  for- 
malities, and  such  rights  are  secured  only 
by  reciprocity  in  the  countries  designated  by 
presidential  proclamation  and  according  to 
the  formalities  of  their  domestic  legislation. 
The  International  Copyright  Union  held  a 
convention  in  Berlin,  1908,  which  replaced, 
in  the  relations  between  the  contracting 
states,  the  Convention  of  Berne  of  1S86,  with 
the  additional  act  and  the  interpretative 
declaration  of  1S96.  Fifteen  signatory  pow- 
ers of  the  Union  attended,  including  France, 
Germany  and  Great  Britain;  the  United 
States  was  not  a  signatory  power.  Twenty 
non-Union  powers  also  attended  the  Confer- 
ence, including  the  United  States  whose 
delegate,  Thorvald  Solberg,  while  stating 
that  it  was  not  deemed  possible  by  the  Unit- 


COPYRIGHT 


681 


. 


ed  States  to  send  a  plenipotentiary  delegate, 
also  expressed  the  sympathy  of  the  United 
States  with  the  purposes  of  the  Union.  See 
Bowker,  Copyright. 

CORAAGIUM  or  C0RAA6E.  Measures  of 
corn.  An  unusual  and  extraordinary  tribute, 
arising  only  on  special  occasions.  Thty  arc 
thus  distinguished  from  services.  Mention- 
ed in  connection  with  hidage  and  carvwjv. 
Cowell. 

CORAM  IPSO  REGE  (Lat).  Before  the 
king  himself.  Proceedings  in  the  court  of 
king's  bench  are  said  to  be  coram  rege  ipso. 
8  Bla.  Com.  41. 

CORAM  NOBIS.  A  writ  of  error  on  a 
judgment  In  the  king's  bench  is  called  a 
coram  nobis  (before  us).  1  Archb.  Pr.  U34. 
See  Coram  Vobis. 

CORAM  NON  JUDICE.  Acts  done  by 
court  which  has  no  jurisdiction  either  over 
the  person,  the  cause,  or  the  process,  are 
said  to  be  coram  non  judice.  Gruinon  v. 
Raymond,  1  Conn.  40,  0  Am.  Dec.  200.  Such 
acts  have  no  validity.  If  an  act  is  required 
to  be  done  before  a  particular  person,  it 
would  not  be  considered  as  done  before  bim 
if  he  were  asleep  or  non  compos  vuntix; 
Wickes'  Lessee  v.  Caulk,  5  Harr.  &  J.  (Md.) 
42;  Griffith  v.  Frazier,  8  Cra.  (U.  S.)  9,  3 
L.  Ed.  471;  Fisher  v.  Harnden,  1  Paine  55, 
Fed.  Cas.  No.  4,819;  1  Prest.  Conv.  206. 

CORAM  PARIBUS.  In  the  presence  of 
the  peers  or  freeholders.     2  Bla.  Com.  307. 

CORAM  VOBIS.  A  writ  of  error  directed 
to  the  same  court  which  tried  the  cause,  to 
correct  an  error  in  fact.  Bridendolph  v. 
Zellers'  Ex'rs,  3  Md.  325;  3  Steph.  Com. 
642. 

If  a  judgment  in  the  King's  Bench  be  erroneous 
in  matter  of  fact  only,  and  not  in  point  of  law,  it 
may  be  reversed  in  the  same  court  by  writ  of  error 
coram  nobis  (before  us),  or  quae  coram  nobis  resi- 
dant;  so  called  from  its  being  founded  on  the  rec- 
ord and  process,  which  are  stated  in  the  writ  to  re- 
main in  the  court  of  the  king  before  the  king  him- 
self. But  if  the  error  be  in  the  judgment  itself,  and 
not  in  the  process,  a  writ  of  error  does  not  lie  in 
the  same  court  upon  such  judgment.  1  Rolle,  Abr. 
746.  In  the  Common  Pleas,  the  record  and  proceed- 
ings being  stated  to  remain  before  the  king's  jus- 
tices, the  writ  is  called  a  writ  of  error  coram  vobis 
(before  you)  or  qucs  corain  vobis  residant.  3  Chit. 
Bla.  Com.   406,  n. 

CORD.  A  measure  of  wood,  containing 
128  cubic  lVet.  See  Kennedy  v.  R.  Co.,  67 
Barb.   (N.   Y.)  169. 

CO-RESPONDENT.  Any  person  called 
upon  to  answer  a  petition  or  other  proceed- 
ing, but  now  chiefly  applied  to  a  person 
charged  with  adultery  with  the  husband  or 
wife,  in  a  suit  tor  divorce,  and  made  joint- 
ly a  respondent  to  the  suit.     See  Divokck. 

CORN.  In  its  most  comprehensive  sense, 
this  term  signifies  every  sort  of  grain,  as 
well  as  peas  and  beans ;  this  is  its  meaning 
in  the  memorandum  usually  contained  in 
policies   of  insurance.     But  it  does  not  in- 


clude rice;  Park,  Ins.  112;  1  Marsh.  Ins. 
223,  n.;  Weak.  Ins.  145.  See  Com.  Dig.  Biens 
(G,  1).    In  the  United  usually  m 

maize,  or  Indian  corn ;  Sullins  v.  State,  53 
Ala.  474. 

CORN-LAWS.  Laws  regulating  the  trade 
in  bread-stuffs. 

The  object  of  corn  laws  is  to  secure  a  regular  and 
steady  supply  of  the  great  staples  of  food  ;  and  for 
this  object  the  means  adopted  in  different  countries 
and  at  different  times  widely  vary,  sometimes  in- 
volving restriction  or  prohibition  upon  the  export, 
and  sometimes,  in  order  to  stimulate  production, 
offering  a  bounty  upon  the  export.  Of  the  former 
character  was  the  famous  system  of  corn  laws  of 
England,  initiated  in  1773  by  Burke,  and  repealed 
in  1846   under  Sir  Robert  Peel.     See   Cobden'. 

CORN    RENTS.     Rents  reserved  in  wheat 
or  malt  in  certain  university  leases  in 
land.     Stat.  18  Eliz.  c.  6;  2  Bla.  Com.  322 

CORNAGE.     A  species  of  tenure  in 
laud,  by  which  the  tenant  was  bound  to  blow 
a  horn  for  the  sake  of  alarming  the  country 
on   the   approach    of  an   enemy.      Bac.    Abr. 
Tenure  (N.J. 

CORNET.     A    commissioned    officer    in    a 
regiment  of  cavalry,  abolished  in  England  in 
1871,  and  not  existing  in  the  United  fi 
army. 

C0R0DY.  An  allowance  of  meat,  drink, 
money,  clothiug,  lodging,  and  such  like  i 
saries  for  sustenance.  1  Bla.  Com.  283 :  l 
Chit.  Pr.  2-5.  An  allowance  from  an  abbey 
or  house  of  religion,  to  one  of  the  king's 
servants  who  dwells  therein,  of  meat  and 
other  sustenance.    Fitzb.  X.  B.  230. 

An  assize  lay  for  a  corody;  Cowell.     I 
dies  are  now  obsolete;   Co.  2d   Inst.   0"<>:   2 
Bla.  Com.  40. 

CORONATION.  It  "is  but  a  royal  orna- 
ment and  solemnization  of  the  royal  descent, 
but  no  part  of  the  title."  By  the  laws  of 
England  there  can  be  no  interregnum:  7  <••. 
Rep.  10  b. 

CORONATION  OATH.  The  oath  adminis- 
tered to  a  sovereign  in  England  before  coro- 
nation. Whart  Law  Die.  its  form  was 
somewhat  changed  at  the  coronation  of  Ed- 
ward VII. 

C0R0NAT0R   (Lat).     A  coroner.     Spel. 

C0R0NAT0RE  EX0NERAND0.  A  writ 
for  the  removal  of  a  coroner,  for  a  cause 
therein  assigned. 

CORONER.  An  Officer  whose  principal 
duty  it  is  to  bold  an  Inquisition,   with  the 

assistance  of  a  jury,  over  the  body  of  any 
person  who  may  have  come  to  a  violent 
death,  or   who  has  died  in  prison. 

It  is  his  duty,  in  case  of  the  death  of  the 
sheriff  or  his  incapacity,  or  when  a  vacancy 
occurs  in  that  office,  to  serve  all  the  writs 
and  processes  which  the  sheriff  is  usually 
bound  to  serve;  Gunby  v.  Welcher,  20  Ga. 
336;   Brown   v.   Barker,   10   Humph.    (Tenn.) 


CORONER 


682 


CORPORAL 


346 ;  Manning  v.  Keenan,  73  N.  Y.  45 ;  1  Bla. 
Com.  349.    See  Sheriff. 

Coroners  were  county  officers  placed  be- 
side the  sheriff  to  look  after  the  adminis- 
tration of  criminal  justice  and  the  revenue 
to  the  king  resulting  therefrom;  Brunner,  2 
Sel.  Essays  in  Anglo-Amer.  L.  H.  31.  See 
Gross,  History  of  Coroners.  It  is  supposed 
that  the  first  institution  of  coroners  dates 
from  1194.  The  office  may  have  existed  be- 
fore then.  2  Holdsw.  Hist.  E.  L.  45;  Pol- 
lock, King's  Peace,  2  Sel.  Essays  in  Anglo- 
Amer.  L.  H.  410. 

It  was  also  the  coroner's  duty  to  inquire 
concerniug  shipwreck,  and  to  find  who  had 
possession  of  the  goods ;  concerning  treas- 
ure-trove, who  were  the  finders,  and  where 
the  property  was ;  1  Bla.  Com.  349.  The 
stat.  4  Edw.  I.  ch.  2  (1276),  entitled  "De  Of- 
ficio Coronatoris,"  empowered  the  coroner 
to  inquire  who  was  slain  and  who  were 
there,  who  and  in  what  manner  they  were 
culpable  of  the  act  or  force.  Whoever  was 
found  culpable  was  turned  over  to  the  sher- 
iff, and  whoever  was  not  culpable  was  at- 
tached until  the  coming  of  the  justices.  The 
Chief  Justice  of  the  King's  Bench  was  the 
chief  coroner  of  all  England ;  though  he  did 
not  perform  the  active  duties  of  that  office 
in  any  one  county;  4  Co.  57  6;  Bac.  Abr. 
Coroner;  3  Com.  Dig.  242;  5  id.  212. 

Coroners  were  abolished  in  Massachusetts 
in  1877,  and  "men  learned  in  the  science  of 
medicine"  are  appointed  to  make  autopsies 
and  in  case  of  a  violent  death  to  report  it 
to  a  justice  of  the  district. 

In  England  a  coroner  (one  in  every  county 
and  in  certain  boroughs)  holds  a  court  of 
record;  his  jury  of  inquest  consists  of  not 
less  than  12  nOr  more  than  23  persons.  Up- 
on a  verdict  of  the  jury,  the  coroner  can 
commit  the  accused  for  trial  and  he  may  be 
arraigned  without  any  presentment  by  a 
grand  jury.    Odgers,  C.  L.  1031. 

A  corouer  is  a  "judicial  officer"  within  a 
bribery  act;  People  v.  Jackson,  191  N.  Y. 
293,  84  N.  E.  65,  15  L.  R.  A.  (N.  S.)  1173, 
14  Ann.  Cas.  243. 

It  is  proper  for  a  coroner  in  most  cases 
of  homicide  to  cause  an  examination  to  be 
made  by  a  physician,  and  in  many  cases 
it  is  his  duty  so  to  do ;  4  C.  &  P.  571.  See 
Jameson  v.  Board  of  Com'rs  of  Bartholo- 
mew County,  64  Ind.  524;  Sanford  v.  Lee 
County,  49  la.  148 ;  Cook  v.  Multnomah  Coun- 
ty, 8  Or.  170. 

In  Coroner's  Duties,  20  D.  R.  (Pa.)  685, 
Sulzberger,  P.  J.,  instructed  the  coroner  as 
to  his  duties  in  Pennsylvania,  where  the 
practice  has  been  much  modified,  to  the  ef- 
fect that  the  district  attorney  should  always 
be  present  at  the  coroner's  inquest  and  that 
he  has  power  to  cross-examine  witnesses; 
also  that  if  the  district  attorney  is  of  opin- 
ion that  there  is  no  evidence  to  hold  the 
person  charged,  he  should  be  discharged,  but 
not  otherwise. 


CORPORAL  (Lat.  corpus,  body).  Bodily; 
relating  to  the  body:  as,  corporal  punish- 
ment. 

A  non-commissioned  officer  of  the  lowest 
grade  in  an  infantry,  cavalry,  or  artillery 
company. 

CORPORAL  OATH.  An  oath  which  the 
party  takes  laying  his  hand  on  the  gospels. 
Cowell.  It  is  now  held  to  mean  solemn  oath. 
Jackson  v.  State,  1  Ind.  1S4. 

CORPORAL  TOUCH.  Actual,  bodily  con- 
tact with  the  hand. 

It  was  once  held  that  before  a  seller  of 
personal  property  could  be  said  to  have 
stopped  it  in  transitu,  so  as  to  regain  the 
possession  of  it,  it  was  necessary  that  it 
should  come  to  his  corporal  touch;  but  the 
contrary  is  now  settled.  These  words  were 
used  merely  as  a  figurative  expression.  3 
Term  464;  5  East  184. 

CORPORATION.  A  body,  consisting  of 
one  or  more  natural  persons,  established  by 
law,  usually  for  some  specific  purpose,  and 
continued  by  a  succession  of  members. 

"An  artificial  being  created  by  law  and 
composed  of  individuals  who  subsist  as  a 
body  politic  under  a  special  denomination 
with  the  capacity  of  perpetual  succession 
and  of  acting  within  the  scope  of  its  char- 
ter as  a  natural  person."  Fietsam  v.  Hay, 
122  111.  293.  By  fiction  it  is  partly  a  per- 
son and  partly  a  citizen,  yet  it  has  not  the 
inalienable  rights  of  a  natural  person; 
Northern  Securities  Co.  v.  United  States,  193 
U.  S.  200,  24  Sup.  Ct.  436,  48  L.  Ed.  679. 

A  corporation  aggregate  is  a  collection  of 
individuals  united  in  one  body  by  such  a 
grant  of  privileges  as  secures  succession  of 
members  without  changing  the  identity  of 
the  body  and  constitutes  the  members  for 
the  time  being  one  artificial  person  or  legal 
being  capable  of  transacting  the  corporate 
business  like  a  natural  person.  Bronson,  J., 
People  v.  Assessors  of  Village  of  Watertown, 
1  Hill  (N.  Y.)  620. 

For  a  long  time  the  prevailing  theory  on  the  Con- 
tinent of  Europe  of  the  true  nature  of  corporate 
bodies  was  that  the  personality  of  a  corporation  was 
a  mere  legal  fiction,  and  its  rights  derived  in  every 
case  from  a  special  creation  by  the  state.  But  of 
late  years  writers  of  considerable  authority  have 
taken  the  view  that  the  legal  existence  or  person- 
ality of  a  corporation,  though  limited  in  various 
ways,  is  quite  as  real  as  that  of  an  individual; 
Pollock,  First  Book  of  Jurispr.  113,  where  various 
authorities  are  referred  to,  and  the  author  expresses 
his  belief  that  the  latter  view  is  sounder.  The  cor- 
poration in  England  was  the  joint  result  of  certain 
groups  in  ecclesiastical  life  and  certain  other  groups 
'active  in  temporal  affairs.  For  centuries  the  de- 
velopment of  each  was  wholly  independent  of  the 
other.  The  boroughs  first  began  to  secure  from  the 
king  franchises  to  hold  their  own  courts,  to  their 
own  customs  and  freedom  from  toll.  A  borough  had 
two  organizations — gild  and  governmental.  They 
were  connected,  but  not  identical.  The  franchises 
were  in  the  form  of  a  grant  from  the  king  and 
were  made  to  the  burgesses.  No  legal  person  was 
created,  but  the  burgesses  died  and  their  privileges 
were  continued  to  their  successors.  When  individ- 
ual   inhabitants   of   the   borough  offended   the    king 


CORPORATION 


683 


COUP' -RATION 


by  their  acts,  he  took  away  the  franchise  of  the 
borough  as  a  punishment,  which  punishment  fell  on 
the  community.  Once  in  such  a  case  the  London- 
ers prayed  that  only  the  guilty  might  be  punished; 
Riley,  Chronicles  84.  The  king  treated  the  bur- 
gesses as  a  group  and  the  burgesses  In  respect  to 
their  property  acted  as  a  group. 
'  The  same  idea  developed  in  ecclesiastical  life. 
For  wholly  different  reasons,  religious  groups  were 
formed.  The  basic  doctrines  of  the  Christian  church 
require  co-operation  and  also  continuity  of  thought 
and  effort.  Monasteries,  convents  and  chapters  were 
the  result.  It  became  evident  that  this  Indefinite 
something  produced  by  the  association  of  several 
6hould  be  given  a  name  and  its  status  established. 
There  was  much  blind  groping  after  the  nature  of 
this  indefinite  something.  For  a  time  the  idea 
naturally  suggested  by  the  analogy  of  the  human 
body  was  applied  to  these  groups.  The  chief  officer, 
as  the  mayor  or  the  bishop,  was  the  head  and  the 
members  were  the  arms,  legs,  etc.  This  was  called 
the  anthropomorphic  theory  and  for  a  long  time 
obscured  the  true  corporate  idea;  1  Poll.  &  Maitl. 
(2d  ed.)  491,  and  citations  of  the  year  books  there 
given;    19    Ilarv.    L.    Rev.   350. 

Finally,  however,  the  oneness  of  these  groups  was 
given  a  definite  recognition,  not  as  a  real,  but  as  an 
ideal  or  legal  person.  The  conception  of  an  ideal 
person  having  legal  rights  and  duties  was  bor- 
rowed directly  from  the  early  English  theory  as  to 
church  ownership.  In  very  early  times,  several 
centuries  at  least  before  the  reign  of  Edward  I., 
there  were  in  England  what  were  vaguely  known  as 
church  lands.  At  first  the  land  was  given  direct 
to  God.  Sometimes  it  was  given  to  a  particular 
saint,  who  was  supposed  to  guard  and  protect  it. 
Little  by  little,  the  saint  and  the  buildings  became 
merged  in  each  other  and  the  church  itself  was 
thought  to  be  the  property  owner.  The  functions  of 
ownership  were  necessarily  performed  by  human 
beings— by  the  clergy— and  the  theory  was  natu- 
rally extended  to  cases  where  there  was  only  one 
cleric.  Thus  was  introduced  the  corporation  sole, 
characterized  as  "that  unhappy  freak  of  English 
law"  ;  1  Poll.  &  Maitl.  488.  In  ecclesiastical  affairs, 
the  corporation  aggregate  was  almost  resolved  into 
a  mere  collection  of  corporations  sole ;  id.  607.  See 
infra. 

It  was  not  until  about  the  middle  of  the  15th  cen- 
tury that  it  was  settled  as  a  matter  of  positive  law 
that  the  corporation  must  be  created  by  the  sover- 
eign power,  which  rule  arose  simply  from  consid- 
erations of  political  expediency.  Recognizing  that 
boroughs,  organized  communities  and  gilds  might 
become  dangerous,  the  king  made  them  a  source  of 
revenue  by  selling  the  privilege  to  exist.  In  1440 
the  first  municipal  charter  was  granted.  The  may- 
or, burgesses  and  their  successors,  mayors  and  bur- 
gesses of  the  town  of  Kingston-upon-IIull,  were  in- 
corporated so  as  to  form  "one  perpetual  corporate 
commonalty."     19  Harv.   L.   Rev.  350. 

"What  we  call  a  corporation  was  first  called  'un 
corps'  or  a  body,  whence  our  'body  politic,'  or  'body 
corporate';  or  'un  gros'  or  something  that  had  an 
existence  In  itself,  apart  from  its  constituents. 
Thus  there"  was  gradually  evolved  the  idea  of  an 
abstract  artificial  individuality,  composed  of  mem- 
bers for  the  time  being,  to  be  succeeded  by  others 
after  them,  but  continuing  after  their  death.  This 
became  the  persona  ficta  of  a  later  time."  A.  M. 
Eaton  in  1902  Amer.  Bar  Assoc.  Repts.  320.  Refer- 
ring to  the  earlier  historical  days,  the  same  author 
says,  (p.  322):  "There  was  no  intention  on  either 
part  to  form  a  corporation,  indeed  neither  knew 
what  a  corporation  was;  for  the  name  did  not 
exist,  but  the  thing  itself  was  being  gradually 
evolved." 

For  the  history  of  corporations  before  1800,  see 
Williston,  2  Harv.  L.  Rev.  149  (3  Sol.  Essays  in  An- 
glo-Amer.  L.  H.  195):  Baldwin,  History  of  Private 
Corp.,  3  Sol.  Essays  in  Anglo-Amer.  L.  H.  236. 

For  centuries  the  leading  case  on  corporations  in 
England  was  the  case  of  Sutton's  Hospital,  10  Co. 
1  (1612),  where  the  king,  on  the  petition  of  Sutton, 
had  granted  a  charter  to  a  hospital.  Sutton  con- 
veyed land   to  such  corporation.     Against  the  con- 


tention of  the  heir  that  there  was  no  corporation 
and  that  the  conveyance  was  void,  it  was  held  that 
both  the  incorporation  and  the  deed  were  valid  and 
that  the  incorporation  of  the  persons  might  pre- 
cede the  foundation  of  the  hospital;  21  Harv.  L. 
Rev.  305. 

It  was  considered  at  that  time  that  corporations 
aggregate  could  not  commit  treason,  nor  be  out- 
lawed nor  excommunicated,  for  they  have  no  souls. 
Neither  can  they  appear  in  person,  but  by  attor- 
ney ;  they  cannot  do  fealty,  for  an  invisible  body 
can  neither  be  in  person  nor  swear  ;  10  Cok. 
Blackstone  said  it  can  neither  maintain  nor  be  de- 
fendant to  an  action  of  battery  or  such  like  personal 
injuries,  for  a  corporation  can  neither  beat,  nor 
be  beaten,  in  its  body  politic  ;  1  Bla.  Com.  ; 
could  not  be  executor  or  administrator  or  perform 
any  personal  duties,  for  it  could  not  take  an  oath 
for  the  due  execution  of  the  office;    id. 

The  fiction  that  a  corporation  can  do  nothing  but 
by  an  attorney,  that  it  was  an  artificial  being, 
guarded  by  the  body  of  associates  forming  it,  led 
to  the  theory  that  its  administrative  officers  could 
exercise  only  a  delegated  authority;  21  Harv.  L. 
Rev.  535.  It  is  said  that  under  the  pressure  of  mod- 
ern analysis  this  fiction  tends  to  yield  to  more  ra- 
tional ideas,  and  corporate  action  is  perceived  more 
truly  as  simple  group  action;  id.  A  corporation 
represents  the  most  advanced  attainment  of  the 
group  idea;    19  id.  350. 

The  first  business  corporate  charter  In  the  United 
States  was  in  1768:  "The  Philadelphia  Contribu- 
tionship   for    Insuring  Houses  from    Loss   by   Fire." 

Aggregate  corporations  are  those  which 
are  composed  of  two  or  more  members  at 
the  same  time. 

Civil  corporations  are  those  which  are 
created  to  facilitate  the  transaction  of  busi- 
ness. 

Ecclesiastical  corporations  are  those  which 
are  created  to  secure  the  public  worship  of 
God. 

Eleemosynary  corporations  are  those  which 
are  created  for  the  purposes  of  charities, 
such   as   schools,   hospitals,   and   the   like. 

Lay  corporations  are  those  which  exist 
for  secular  purposes. 

Municipal  corporations  are  those  crt.i t » -.1 
for  the  purpose  of  administering  some  por- 
tion of  the  government  in  a  political  sub- 
division of  the  state,  as  a  city,  county,  etc. 

Private  corporations  are  those  which  are 
created  wholly  or  in  part,  for  purposes  of 
private  emolument  Trustees  of  Dartmouth 
College  v.  Woodward,  4  Wheat.  (I'.  S.  >  668, 
4  L.  Ed.  629;  Bank  of  United  States  v.  Bank, 
9   Wheat.    (U.  S.)    907,  G  L.   Ed.   211. 

Public  corporations  are  those  which  are 
exclusively  instruments  of  the  public  inter- 
est. 

Corporations  sole  are  those  which  by  law 
consist  of  but  one  member  at  any  one  time, 
as  a  bishop  in  England.  But  see  infra:  also 
supra. 

In  the  Dartmouth  College  ('as.'.  1  Wheat 
(TJ.  s.)  666,  i  i-  Ed.  629,  Mr.  Justice  Story 
defined  the  various  kinds  of  eorperaiions  as 
follows  : 

"An  aggregate  corporation  at  common 
law  is  a  collection  of  individuals  united  into 
one  collective  body,  under  a  special  name, 
and  possessing  certain  Immunities,  privi- 
leges, ami  capacities  in  its  collective  char- 
acter,  which  do  not   belong   to  the  natural 


CORPORATION 


684 


CORPORATION 


persons  composing  it.  ...  A  great  va- 
riety of  these  corporations  exist  in  every 
country  governed  by  the  common  law ; 
.  .  .  some  of  these  corporations  are,  from 
the  particular  purposes  to  which  they  are  de- 
voted, denominated  spiritual,  and  some  lay ; 
and  the  latter  are  again  divided  into  civil 
and  eleemosynary  corporations.  Eleemosy- 
nary corporations  are  such  as  are  constitut- 
ed for  the  perpetual  distribution  of  the  free 
alms  and  bounty  of  the  founder.  .  .  . 
In  this  class  are  ranked  hospitals,  and  col- 
leges, etc.  Another  division  of  corporations 
is  into  public  and  private.  Public  corpora- 
tions are  generally  esteemed  such  as  exist 
for  public  and  political  purposes  only,  such 
as  towns,  cities,  etc.  Strictly  speaking,  pub- 
lic corporations  are  such  only  as  are  found- 
ed by  the  government  for  public  purposes, 
where  the  whole  interests  belong  also  to  the 
government.  If,  therefore,  the  foundation 
be  private,  though  under  the  charter  of  the 
Government,  the  corporation  is  private. 
.  .  .  For  instance,  a  bank  created  by  the 
Government  for  its  own  uses,  whose  stock 
is  exclusively  owned  by  the  government,  is, 
in  the  strictest  sense,  a  public  corporation. 
So  a  hospital  created  and  endowed  by  the 
government  for  general  charity.  But  a 
bank,  whose  stock  is  owned  by  private  per- 
sons, is  a  private  corporation.  .  .  .  The 
same  doctrine  may  be  affirmed  of  insurance, 
canal,  bridge,  and  turnpike  companies.  In 
all  these  cases,  the  uses  may,  in  a  certain 
sense,  be  called  public,  but  the  corporations 
are  private.  .  .  .  This  reasoning  applies 
in  its  full  force  to  eleemosynary  corpora- 
tions. .  .  .  This  is  the  unequivocal  doc- 
trine of  the  authorities ;  and  cannot  be 
shaken  but  by  undermining  the  most  solid 
foundations  of  the  common  law." 

Kent  divides  corporations  into  ecclesias- 
tical and  lay,  and  lay  corporations  into 
eleemosynary  and  civil;.  2  Kent  274. 

It  has  been  held  that  a  public  corporation 
is  one  that  cannot  carry  out  the  purposes 
of  its  organization  without  certain  rights  un- 
der its  charter  from  the  commonwealth,  and 
that  mere  private  corporations  are  those 
that  need  no  franchise  from  the  state  to 
carry  out  such  purposes;  Allegheny  Co.  v. 
Diamond  Market,  123  Pa.  164,  16  Atl.  619. 
But  Judge  Thompson  doubts  as  to  whether 
these  divisions  promote  clear  conceptions 
of  the  law ;  1  Thomp.  Corp.  §  22;  he  con- 
siders that  a  more  practical  conception 
would  divide  them  into  three  classes :  public- 
municipal  corporations,  to  promote  the  pub- 
lic interest;  corporations  technically  private 
but  of  quasi  public  character,  such  as  rail- 
roads etc. ;  and  corporations  strictly  pri- 
vate; id.  §  37. 

The  essence  of  a  corporation  consists  "in 
a  capacity  (1)  to  have  perpetual  succession 
in  a  special  and  in  an  artificial  form;  (2)  to 
take  and  grant  property,  contract  obliga- 
tions, sue  and  be  sued  by  its  corporate  name 


as  an  individual;  (3)  to  receive  and  enjoy  in 
common  grants  of  privileges  and  immuni- 
ties; Thomas  v.  Dakin,  22  Wend.  (N.  Y.)  71. 

By  both  the  civil  and  the  common  law, 
the  sovereign  authority  only  can  create  a 
corporation, — a  corporation  by  prescription, 
or  so  old  that  the  license  or  charter  which 
created  it  is  lost,  being  presumed,  from  the 
long-continued  exercise  of  corporate  pow- 
ers, to  have  been  entitled  to  them  by  sover- 
eign grant.  In  England,  corporations  are 
created  by  royal  charter  or  parliamentary 
act;  in  the  United  States,  by  legislative  act 
of  any  state,  or  of  the  congress  of  the  Unit- 
ed States, — congress  having  power  to  create 
a  corporation,  as,  for  instance,  a  national 
bank  when  such  a  body  is  an  appropriate 
instrument  for  the  exercise  of  its  constitu- 
tional powers;  McCulloch  v.  Maryland,  4 
Wheat.  (U.  S.)  424,  4  L.  Ed.  579.  In  many 
or  most  of  the  states  general  acts  have  been 
passed  for  the  creation  of  certain  classes 
of  some  corporations.  And  some  state  con- 
stitutions have  taken  from  the  legislature 
the  power  to  create  them  by  special  act. 

All  corporations,  of  whatever  kind,  ai-e 
moulded  and  controlled,  both  as  to  what 
they  may  do  and  the  manner  in  which  they 
may  do  it,  by  their  charters  or  acts  of  in- 
corporation, which  to  them  are  the  laws  of 
their  being,  which  they  can  neither  dispense 
with  nor  alter.  Subject,  however,  to  such 
limitations  as  these,  or  such  as  general  stat- 
ute or  constitutional  law,  may  impose,  every 
corporation  aggregate  has,  by  virtue  of  in- 
corporation and  as  incidental  thereto,  first, 
the  power  of  perpetual  succession,  including 
the  admission,  and,  except  in  the  case  of 
mere  stock  corporations,  the  removal  for 
cause,  of  members ;  second,  the  power  to 
sue  and  be  sued,  to  grant  and  to  receive 
grants,  and  to  do  all  acts  which  it  may  do 
at  all,  in  its  corporate  name;  third,  to  pur- 
chase, receive,  and  to  hold  lands  and  other 
property,  and  to  transmit  them  in  succes- 
sion; fourth,  to  have  a  common  seal,  and  to 
break,  alter,  and  renew  it  at  pleasure;  and, 
fifth,  to  make  by-laws  for  its  government,  so 
that  they  be  consistent  with  its  charter  and 
with  law.  It  may,  within  the  limits  of  its 
charter  or  act  of  incorporation  express  or 
implied,  lawfully  do  all  acts  and  enter  into 
all  contracts  that  a  natural  person  may  do 
or  enter  into,  so  that  the  same  be  appro- 
priate as  means  to  the  end  for  which  the 
corporation  was  created. 

It  is  not  obliged  to  use  all  its  powers  un- 
less its  charter  especially  so  requires ;  Illi- 
nois Trust  &  Savings  Bank  v.  Doud,  105  Fed. 
123,  44  C.  C.  A.  389,  52  L.  R.  A.  481. 

A  corporation  is  a  creature  of  the  state. 
It  is  presumed  to  be  incorporated  for  the 
benefit  of  the  public.  It  receives  certain 
special  privileges  and  franchises  and  holds 
them  subject  to  the  laws  of  the  state  and  the 
limitations  of  its  charter.  Its  powers  are 
limited  by  law.    It  can  make  no  contract  not 


CORPORATION 


G85 


CORPORATION 


authorized  by  its  charter.  Its  rights  to  act 
as  a  corporation  are  only  preserved  to  it  so 
long  as  it'obeys  the  laws  of  its  creation. 
There  is  a  reserved  right  in  the  legislature  to 
Investigate  its  contracts  and  ascertain  if  it 
has  exceeded  its  powers;  Wilson  v.  U.  S., 
221  U.  S.  382,  ::i  Sup.  Ct.  538,  55  L.  Ed  771, 
Ann.  Cas.  1912A,  558.  A  corporation  of  one 
state  may  be  made  a  corporation  of  another 
state  in  regard  to  property  and  acts  within 
its  territorial  jurisdiction;  Ohio  &  M.  R,  Co. 
v.  Wheeler,  1  Black  (U.  S.)  280,  17  L.  Ed. 
130;  Baltimore  &  O.  R.  Co.  v.  Harris,  12 
Wall.  (U.  S.)  65,  20  L.  Ed.  354;  Chicago  & 
N.  W.  R.  Co.  v.  Whitton,  13  Wall.  (U.  S.) 
270,  20  L.  Ed.  571  ;  St.  Louis  R.  Co.  v.  Vance, 
OG  U.  S.  450,  24  L.  Ed.  752 ;  Clark  v.  Barnard, 
108  U.  S.  436,  2  Sup.  Ct.  878,  27  L.  Ed.  780; 
Martin  v.  R.  Co.,  151  U.  S.  673,  14  Sup.  Ct 
533,  38  L.  Ed.  311;  Louisville.  N.  A.  &  C.  R. 
Co.  v.  Trust  Co.,  174  l.  8.  552,  19  Sup.  Ct. 
817,  43  L.  Ed.  1081;  Maekay  v.  R.  Co.,  82 
Com.  73,  72  Atl.  583,  24  L.  R.  A.  (N.  S.)  768; 
but  the  mere  grant  of  privileges  and  powers 
to  it  as  an  existing  corporation,  without 
more,  does  not  confer  the  power  usually  ex- 
ercised over  corporations  by  the  state  or  by 
the  legislature.  The  language  used  must  im- 
ply creation  or  adoption ;  Pennsylvania  R, 
Co.  v.  R.  Co.,  118  U.  S.  200,  6  Sup.  Ct.  1094, 
30  L.  Ed.  83;  Goodlett  v.  R.  R.,  122  U.  S. 
391,  7  Sup.  Ct.  1254,  30  L.  Ed.  1230;  St.  Louis 
&  S.  P.  R.  Co.  v.  James,  1G1  U.  S.  545,  1G 
Sup.  Ct  621,  40  L.  Ed.  S02.  Where  a  corpo- 
ration is  incorporated  simultaneously  in  sev- 
eral states,  it  exists  in  each  state ;  Pinney  v. 
Nelson,  183  U.  S.  149,  22  Sup.  Ct.  52,  46  L. 
Ed.  125.  Where  it  is  sued  in  one  of  such 
states  it  cannot  escape  the  jurisdiction  there- 
of and  remove  the  cause  to  the  federal  court ; 
Patch  v.  R.  Co.,  207  U.  S.  277,  28  Sup.  Ct.  80, 
52  L.  Ed.  204,  12  Ann.  Cas.  518,  distinguish- 
ing Southern  R.  Co.  v.  Allison,  190  U.  S.  326, 
23  Sup.  Ct.  713,  47  L.  Ed.  1078.  Where  sever- 
al corporations,  each  of  a  different  state,  are 
so  consolidated  by  the  co-operating  legisla- 
tion of  those  states  as  to  assume  a  new  cor- 
porate form  and  name,  the  consolidated  cor- 
poration is,  in  each  of  those  states,  a  cor- 
poration of  such  state ;  Patch  v.  R.  Co.,  207 
U.  S.  277,  28  Sup.  Ct.  80,  52  L.  Ed.  204,  12 
Ann.  Cas.  518.    See  Merger. 

Where  property  is  involved,  a  corporation 
is  regarded  as  a  person  separate  and  distinct 
from  its  stockholders,  or  any  or  all  of  them; 
Home  Fire  Ins.  Co.  v.  Barber,  67  Neb.  644, 
93  N.  W.  1024,  60  L.  R.  A.  927,  108  Am.  St. 
Rep.  716,  per  Pound,  Com'r.  The  entirely 
separate  identity  of  the  rights  and  remedies 
of  a  corporation  itself  and  the  individual 
shareholders  is  settled ;  Big  Creek  Gap  Coal 
&  Iron  Co.  v.  Trust  Co.,  127  Fed.  626,  62  C. 
C.  A.  351;  Bronson  v.  R.  Co.,  2  Wall.  (U. 
S.)  283,  li  L.  Ed.  725;  Davenport  v.  Dows, 
18  Wall.  G2G,  21  L.  Ed.  93S;  Church  v.  R.  Co., 
78  Fed.  52G ;  Forbes  v.  R.  Co.,  Fed.  Cas.  No. 
4,926. 


But  it  is  held  that  while  a  corporation  is 
ordinarily  considered  a  legal  entity,  yet  it 
may,  in  the  interest  of  justice,  be  considered 
as  an  association  of  persons ;  and  where  one 
corporation  is  organized  and  owned  by  the 
stockholders  and  officers  of  another,  they 
may  be  treated  as  identical;  U.  S.  v.  Transit 
Co.,  142  Fed.  247. 

Its  residence  is  fixed  by  artificial  condi- 
tions, such  as  the  location  of  its  principal  of- 
fice, or  (if  a  foreign  corporation)  the  per- 
sonal residence  of  its  duly  appointed  attor- 
ney in  facl  on  whom  service  is  to  be  made 
in  a  state  where  it  is  registered  as  a  f> 
corporation;    Lemon   v.   Glass   Co.,   199 

A  corporation  having  stockholders  is  or- 
(janizcd  when  the  first  meeting  has  been  call- 
ed, the  act  of  incorporation  accepted,  officers 
elected,  and  by-laws  providing  for  future 
meetings  adopted,  within  the  meaning  of  a 
statute  providing  that  incorporators  and  sub- 
scribers shall  hold  the  franchise  until  the 
corporation  is  organized;  Roosevelt  v.  Hamb- 
lin.  199  Mass.  127,  ST>  N.  E.  98,  18  L.  R.  A. 
(N.  S.)  748;  or  when  the  officers  provided 
for  in  the  law  of  its  being  have  been  appoint- 
ed and  taken  upon  themselves  the  burden  of 
their  offices;  Com.  v.  Mann  Co.,  150  Pa.  G4. 
24  Atl.  G01;  Walton  v.  Oliver,  49  Kan.  107, 
30  Pac.  172,  33  Am.  St  Rep.  355.  It  has  been 
held  not  to  be  organized  where  it  had  not 
recorded  a  certificate  of  complete  organiza- 
tion; Loverin  v.  McLaughlin,  161  111.  417,  44 
N.  E.  99;  North  Chicago  Electric  Ry.  Co.  v. 
Peuser,  190  111.  67,  60  N.  E.  78 ;  or  filed  its 
articles  of  incorporation;  Capps  v.  Prospectr 
ing  Co.,  40  Neb.  470,  58  N.  W.  95G,  24  L.  R. 
A.  259,  42  Am.  St.  Rep.  G77;  or  its  certificate 
that  the  requisite  capital  stock  had  been  de- 
posited ;    Gent  v.  Ins.  Co.,  107  111.  G52. 

In  civil  cases  a  corporation  is  liable  for  the 
malice  of  its  officers  and  servants ;  [1900]  1 
Q.  B.  22;    [1904]  A.  C.  423. 

Ordinarily  in  England  it  cannot  be  prose- 
cuted for  a  crime;  but  it  may  be  for  a  mis- 
demeanor, which  is  merely  a  civil  wrong; 
(e.  g.)  for  breaches  of  the  Food  and  1  >ru:r 
Act;  Odger,  C.  L.  1405.  In  the  United  States 
it  may  be  indicted  for  crime,  but  not  for 
every  species;  5  Thomps.  Cap.  §  G418.  It  may 
be  for  a  criminal  libel;  Brennan  v.  Tracy.  2 
Mo.  App.  540  (dictum)  ;  for  keeping  a  dis- 
orderly house;  State  v.  Agricultural  Soc,  54 
N.  J.  L.  2G0,  23  Atl.  680;  for  obstructed  pub- 
lic navigation  by  not  constructing  a  draw 
bridge;  Com.  v.  Proprietors  of  New  Bedford 
Bridge,  2  Cray  (Mass.i  :'.::•.»;  for  a  public 
nuisance;  State  v.  City  of  Portland.  74  Me. 
268,  43  Am.  Rep.  586;  Delaware  Division 
Canal  Co.  v.  Com.,  GO  Pa.  3G7.  106  Am.  Dec. 
570;  for  failure  to  perform  public  duties  (as 
of  a  municipality  failing  to  keep  highways  in 
repair  1  :  State  v.  Town  of  Murfrccsboro,  11 
Humph.  (Tenn.)  217:  for  usury;  state  v. 
Bank,  2  S.  D.  538,  51  N.  W.  337;  for  con- 
spiracy  to  aid  a   lynching  mob;     Rogers  v. 


CORPORATION 


686 


CORPORATOR 


R.  Co.,  194  Fed.  65,  114  C.  C.  A.  85;   and  of 

course  for  offences  under  modern  industrial 
statutes. 

It  is  held  that  it  can  be  indicted  only  when 
the  legislation  has  so  provided;  State  v. 
Hotel  Co.,  42  Ind.  App.  2S2,  85  N.  E.  724. 

The  definition  at  the  beginning  of  this  ti- 
tle of  a  corporation  sole  is  the  one  usually 
given  in  the  books.  It  is  said,  in  England,  to 
include  the  Crown,  all  bishops,  rectors,  vicars 
and  the  like ;  3  Steph.  Com.  15  ed.  2.  So 
of  the  supervisor  of  a  town;  Jansen  v.  Os- 
trander,  1  Cow.  (N.  Y.)  670;  the  governor 
of  a  state;  Governor  v.  Allen,  8  Humphr. 
(Tenn.)  176.  It  has  been  defined  as  a  "term 
established  by  usage  indicating  a  person  some 
of  whose  rights  and  liabilities  are  permitted 
by"  law  to  pass  to  his  successors  in  a  par- 
ticular office,  rather  than  to  his  heirs,  execu- 
tors or  administrators.  Such  a  corporation 
was  unknown  in  the  civil  law."  21  Harv.  L. 
Rev.  306.  But  the  conception  has  been  dis- 
approved by  modern  authors.  Thus,  Sir  F. 
Pollock  (note  to  Maine,  Anc.  Law  226)  says: 
"Our  English  category  of  corporations  sole 
is  not  only,  as  Maine  calls  it,  a  fiction,  but 
modern,  anomalous,  and  of  no  practical  use. 
When  a  parson  or  other  solely  corporate  of- 
fice-holder dies,  there  is  no  one  to  act  for 
the  corporation  until  a  successor  is  appoint- 
ed, and  when  appointed,  that  successor  can 
do  nothing  which  he  could  not  do  without  be- 
ing called  a  corporation  sole.  ...  As  for 
the  King,  or  'the  Crown,'  being  a  corporation 
sole,  the  language  of  our  books  appears  to 
be  nothing  but  a  clumsy  and,  after  all,  in- 
effective device  to  avoid  openly  personifying 
the  state.  .  .  .  The  whole  thing  seems  to 
have  arisen  from  the  technical  difficulty  of 
making  grants  to  a  parson  and  his  successors 
after  the  practice  of  making  them  to  God 
and  the  patron  saint  had  been  discontinued. 
.  .  .  All  this  we  may  now  think  makes  for 
historical  curiosity  rather  than  philosophical 
edification." 

"A  bishop  is  not  a  corporation  sole" ;  per 
Strong,  J.,  in  Kain  v.  Gibboney,  101  U.  S. 
362,  25  L.  Ed.  813,  referring  to  a  Roman 
Catholic  bishop. 

See  Maitland,  Corporation  Sole  (16  L.  Q. 
R.  335);  The  Crown  as  a  Corporation  (17 
id.  131).  Judge  Thompson  has  said  (Corp. 
vol.  1,  §  8)  that  the  conception  of  a  corpora- 
tion sole  is  "passing  out  of  American  law." 
See  Charter  ;  Stock  ;  Stockholder;  Di- 
rector; Meetings;  Officer;  Trust  Fund 
Theory;  Dissolution;  Merger;  Eminent 
Domain;  De  Facto;  Ecclesiastical  Corpo- 
rations. 

CORPORATOR.  A  member  of  a  corpora- 
tion. 

The  corporators  are  not  the  corporation, 
for  either  may  sue  the  other ;  Culbertson  v. 
Wabash  Nav.  Co.,  4  McLean,  547,  Fed.  Cas. 
No.  3,464;  Rogers  v.  Universalist  Society,  19 
Vt  187;  Peirce  v.  Partridge,  3  Mete.  (Mass.) 


44;    Omaha  Hotel  Co.  v.  Wade,  97  U.  S.  13, 
24  L.  Ed.  917. 

CORPOREAL  HEREDITAMENTS.  Sub- 
stantial permanent  objects  which  may  be  in- 
herited. The  term  land  will  include  all  such. 
2  Bla.  Com.  17. 

CORPOREAL  PROPERTY.  In  Civil  Law. 
That  which  consists  of  such  subjects  as  are 
palpable. 

In  the  common  law,  the  term  to  signify  the  same 
thing  is  property  in  possession.  It  differs  from 
incorporeal  property,  which  consists  of  choses  in 
action  and  easements,  as  a  right  of  way,  and  the 
like. 

CORPSE.  The  dead  body  of  a  human  be- 
ing. 1  Russ.  &  R.  366,  n.;  2  Term  733;  1 
Leach  497;  Com.  v.  Loring,  8  Pick.  (Mass.) 
370 ; .  Dig.  47.  12.  3.  7 ;  11.  7.  38  ;  Code,  3.  44. 
1.  Stealing  a  corpse  is  an  indictable  offence, 
but  not  larceny  at  common  law;  Co.  3d  Inst. 
203;    1  Russ.  Cr.  629.     See  Dead  Body. 

CORPUS  (Lat).  A  body.  The  substance. 
Used  of  a  human  body,  a  corporation,  a  col- 
lection of  laws,  etc.  The  capital  of  a  fund 
or  estate  as  distinguished  from  the  income. 

CORPUS  COMITATUS.  The  body  of  the 
county  ;  the  inhabitants  or  citizens  of  a  whole 
county,  as  distinguished  from  a  part  of  the 
county  or  a  part  of  its  citizens.  U.  S.  v. 
Grush,  5  Mas.  290,  Fed.  Cas.  No.  15,268. 

CORPUS  CUM  CAUSA.  See  Habeas  Cob- 
pus  cum  Causa. 

CORPUS  DELICTI.  The  body  of  the  of- 
fence ;   the  essence  of  the  crime. 

It  is  a  general  rule  not  to  convict  unless 
the  corpus  delicti  can  be  established,  that  is, 
until  the  fact  that  the  crime  has  been  act- 
ually perpetrated  has  been  first  proved. 
Hence,  on  a  charge  of  homicide,  the  accused 
should  not  be  convicted  unless  the  death 
be  first  distinctly  proved,  either  by  direct 
evidence  of  the  fact  or  by  inspection  of  the 
body;  Best,  Pres.  §201;  1  Stark.  Ev.  575. 
See  6  C  &  P.  176;  2  Hale,  P.  C.  290;  Whart. 
Cr.  Ev.  §  324.  Instances  have  occurred  of 
a  person  being  convicted  of  having  killed 
another,  who,  after  the  supposed  criminal 
has  been  put  to  death  for  the  supposed  of- 
fence, has  made  his  appearance  alive.  The 
wisdom  of  the  rule  is  apparent ;  but  it  has 
been  questioned  whether,  in  extreme  cases, 
it  may  not  be  competent  to  prove  the  basis  of 
the  corpus  delicti  by  presumptive  evidence; 
3  Benth.  Jud.  Ev.  234;  Wills,  Cir.  Ev.  105; 
Best,  Pres.  §  204 ;  3  Greenl.  Ev.  30.  In  cases 
of  felonious  homicide,  the  corpus  delicti  con- 
sists of  two  fundamental  and  necessary 
facts:  first,  the  death;  and  secondly,  the 
existence  of  criminal  agency  as  its  cause ; 
Pitts  v.  State,  43  Miss.  472.  A  like  analysis 
would  apply  in  the  case  of  any  other  crime. 
When  the  body  of  a  murdered  man  was 
mutilated  and  burned  beyond  recognition, 
testimony  that  a  piece  of  charred  cloth  found 


CORPUS  DELICTI 


687 


CORPUS  JURIS  CI VI LIS 


In  the  ashes  with  the  body  were  like  the 
trousers  that  a  certain  man  wore,  and  that 
a  slate  pencil  found  there  was  identical  with 
one  he  carried  about  him,  was  competent  evi- 
dence to  establish  the  identity  of  the  body; 
State  v.  Martin,  47  S.  0.  87,  25  S.  B.  113. 

The  presumption  arising  from  the  pos- 
session of  the  fruits  of  crime  recently  after 
its  commission,  which  in  all  cases  is  one  of 
fact  rather  than  of  law,  Is  occasionally  so 
strong  as  to  render  unnecessary  any  direct 
proof  of  the  corpus  delicti.  Thus,  to  borrow 
an  illustration  from  Mr.  Justice  Maule,  if  a 
man  were  to  go  into  the  London  docks  quite 
sober,  and  shortly  afterwards  were  to  be 
found  very  drunk,  staggering  out  of  one  of 
the  cellars,  in  which  above  a  million  gallons 
of  wine  are  stowed,  "I  think,"  says  the  learn- 
ed Judge,  "that  this  .would  be  reasonable  evi- 
dence that  the  man  had  stolen  some  of  the 
wine  in  the  cellar,  though  no  proof  were  given 
that  any  particular  vat  had  been  broached 
and  that  any  wine  had  actually  been  missed." 
Dears.  284;  1  Tayl.  Ev.  g  122.  In  this  case 
it  was  proved  that  a  prisoner  indicted  for 
larceny  was  seen  coming  out  of  the  lower 
room  of  a  warehouse  in  the  London  docks, 
in  the  floor  above  which  a  large  quantity 
of  pepper  was  deposited,  and  where  he  had 
no  business  to  be.  He  was  stopped  by  a 
constable,  who  suspected  him  from  the  bulky 
state  of  his  pockets,  and  said,  "I  think  there 
is  something  wrong  about  you  ;"  upon  which 
the  prisoner  said,  "I  hope  you  will  not  be 
hard  upon  me;"  and  then  threw  a  quantity 
of  pepper  out  of  his  pocket  on  the  ground. 
The  witness  stated  that  he  could  not  say 
whether  any  pepper  had  been  stolen,  nor  that 
any  pepper  had  been  missed;  but  that  which 
was  found  upon  the  prisoner  was  of  like  de- 
scription with  the  pepper  in  the  warehouse. 
It  was  held  by  all  the  judges  that  the  prison- 
er, upon  these  facts,  was  properly  convicted 
of  larceny. 

The  corpus  delicti  in  arson  consists  in 
proof  of  the  burning  and  of  criminal  agency 
in  causing  it ;  Spears  v.  State,  92  Miss.  G13, 
46  South.  166,  1G  L.  R.  A.  (N.  S.)  285. 

A  confession  alone  ought  not  to  be  con- 
sidered suflicient  proof  of  the  corpus  delicti ; 
Springfellow  v.  State,  26  Miss.  157,  59  Am. 
Dec.  247;  People  v.  Hennessey,  15  Wend.  (N. 
Y.)  147;  Bines  v.  State,  118  Ga.  320,  45  S. 
E.  376,  (58  L.  R.  A.  33.  It  may  be  proved  by 
circumstantial  evidence;  Dimmick  v.  U.  S., 
135  Fed.  2.".7,  70  C.  C.  A.  141 ;  State  v.  Cillis, 
73  S.  C.  318,  53  S.  E.  4S7,  5  L.  R.  A.  (N.  S.) 
571,  114  Am.  St.  Rep.  95,  6  Ann.  Cas.  993. 

CORPUS  JURIS  CANONICI  (Lat.  the 
body  of  the  canon  law).  The  name  given  to 
the  collections  of  the  decrees  and  canons  of 
the  Roman  church.     See  Canon  Law. 

CORPUS  JURIS  CIVILIS.  The  body  of 
the  civil  law.  The  collection  comprising  the 
Institutes,  the  Pandects  or  Digest,  the  Code, 
and  the  Novels  of  Justinian.     See  those  sev- 


eral titles,  and  also  Civil  Law  for  fuller  in- 
formation.    The  name  is  said  to  have  been 
first  applied   to  this  collection   early   in  the 
seventeenth  century.     See  Basilica;    ( 
Law. 

CORRECTION.  Chastisement,  by  one  hav- 
ing authority,  of  a  person  «  mmlt- 

e,  for  the  purpose  of  Li. 
hiiu  into  legal  subjection. 

It  is  chiefly  exercised  in  a  parental  man- 
nor  by  parents,  or  those  who  are  placed  in 
loco  parentis.  A  parent  may  therefore  jus- 
tify the  correction  of  the  child  either  cor- 
porally or  by  confinement;  and  a  school- 
mast. t  may  justify  similar  correction;  hut 
the  correction  in  both  cases  must  he  moder- 
ate and  in  a  proper  manner;  Com.  Dig.  Plead- 
er, (3  -M.i  P.);  Hawk.  c.  60,  s.  23,  c. '  62,  s.  2, 
C.  29,  s.  5;  Johnson  v.  State,  2  Humph, 
(Tenn,  Am.  Dee.  322;   state  v.  Pen, 

dergrass,  19  N.  0.  365,  31  Am.  Dec  416;  Cook 
v.  Neely,  143  Mo.  App.  632,  128  B.  W.  233. 
See  Assault;   Whipping. 

The  master  of  an  apprentice,  for  disob*  li- 
ence,  may  correct  him  moderately  ;  1  B.  & 
O.  469;  Cro.  Car.  179;  Mitchell  v.  An. 
10  Mart.  O.  S.  (La.)  38;  hut  he  cannot  dele- 
gate the  authority  to  another.  A  master  has 
no  right  to  correct  his  servants  who  are  not 
apprentices;  Matthews  v.  Terry,  10  Conn. 
455;  2  Greenl.  Ev.  §  97;  see  Assault  for 
cases  of  undue  correction.  A  master  may  he 
found  guilty  of  murder  for  whipping  a  serv- 
ant so  that  he  dies,  although  he  has  a  right 
to  inflict  the  punishment,  and  the  Instrument 
is  proper,  if  the  punishment  is  so  prolonged 
and  barbarous  as  to  indicate  malice;  State 
v.  Shaw,  64  S.  C.  566,  43  S.  E.  14,  60  L.  R.  A. 
801,  92  Am.  St.  Rep.  817. 

Soldiers  were  formerly  liable  to  moderate 
correction  from  their  superiors.  For  the 
sake  of  maintaining  discipline  in  the  navy, 
the  captain  of  a  vessel,  belonging  either  to 
the  United  States  or  to  private  individuals, 
might  formerly  inflict  moderate  correction 
on  a  sailor  for  disobedience  or  disorderly 
conduct;  Ah.  Sh.  100;  Brown  v.  Howard,  14 
Johns.  (X.  Y.)  119;  Sampson  v.  Smith,  15 
Mass.  305;  Flemming  v.  Ball.  1  Bay  (S.  C.) 
3;  Aertsen  v.  Aurora,  Bee  161,  Fed.  Cas.  No. 
95;  Thorne  v.  White,  1  Pet.  Adm.  168,  Fed. 
Cas.  No.  13.9^9;  Moll.  209;  Turner's  Case,  1 
Ware  S3.  Fed.  Cas.  No.  14,2-lS.  Such  has 
been  the  ireneral  rule.  But  Bogging  and  oth- 
er degrading  punishments  are  now  forbidden 
in  the  army,  navy,  merchant  service,  and  mil- 
itary prisons;  R.  S.  §§  1342,  1624,  4611,  1364. 

The  husband,  by  the  old  law,  might  give 
his  wife  moderate  correction;  l  Hawk.  P. 
C.  2.  But  in  later  times  this  power  of  correc- 
tion began  to  be  doubted;  and  a  wife  may 
now  have  security  of  the  peace  against  her 
husband,  or  a  husband  against  his  wife;  1 
Bla.  Com.  4  14;  Stra.  478,  875,  1207;  2  Lev. 
128.    See  Married  WOidD 

Any  excess  of  correction  by  the  parent, 
master,  officer,  or  captain  rendered  the  par- 


CORRECTION 


688 


CORRUPTION  OF  BLOOD 


ty  guilty  of  an  assault  and  battery  and  liable 
to  all  its  consequences;  Com.  v.  Randall,  4 
Gray  (Mass.)  36.  See  Assault.  In  some 
prisons,  tbe  keepers  are  permitted  to  correct 
the  prisoners. 

The  King's  Council,  in  the  minority  of 
Henry  VI.  authorized  a  subject  to  chastise 
the  king  "when  he  trespasseth  or  doth  amys." 
3  Holdsw.  Hist.  E.  L.  356. 

CORREGIDOR.  In  Spanish  Law.  A  mag- 
istrate who  took  cognizance  of  various  mis- 
demeanors, and  of  civil  matters.  2  White, 
New  Rec,  53. 

CORREI.  In  Civil  Law.  Two  or  more 
bound  or  secured  by  the  same  obligation. 

Correi  credendi.  Creditors  secured  by  the 
same  obligation. 

Correi  debendi.  Two  or  more  persons 
bound  as  principal  debtors  to  pay  or  per- 
form. Ersk.  Inst.  3.  3.  74;  Calvinus,  Lex.; 
Bell,  Diet 

CORRUPT  AND  ILLEGAL  PRACTICES. 
A  British  act  of  18S3  and  supplements  forbid 
certain  acts  in  connection  with  Parliamenta- 
ry elections,  chiefly  bribery,  treating,  undue 
influence  and  personation.  Such  acts  are 
made  criminal  offences  aud  may  be  ground 
for  the  loss  of  the  seat  if  brought  home  to 
the  candidate  personally  or  through  his 
agent.  If  by  bribery,  etc.,  it  appears  that 
the  electorate  did  not  really  express  its  will, 
the  election  may  be  declared  void.  Certain 
practices  are  declared  illegal,  such  as  pay- 
ment for  the  conveyance  of  electors  to  or 
from  the  polls,  paying  an  elector  for  the 
use  of  his  property,  paying  agents  other  than 
those  specified  in  the  act,  and  making  a  false 
statement  as  to  the  personal  character  or 
conduct  of  a  candidate.  In  certain  cases  the 
penalty  to  the  candidate  may  be  disqualifica- 
tion forever  from  serving  for  the  constituen- 
cy in  question,  and,  for  seven  years,  from 
serving  for  any  other  constituency.  2  Steph. 
Com.   (15th  ed.)  463,  476. 

This  subject  has  more  recently  attracted 
much  attention  in  the  United  States,  and 
acts  are  being  passed  on  the  subject,  but  it 
cannot  be  said  that  the  ground  is  fully  c6v- 
ered.  Among  such  acts  are  those  requiring 
candidates  to  file,  immediately  after  election, 
a  statement  of  expenses  incurred. 

In  some  states,  the  state  treasury  assumes 
certain  nomination  expenses.  See  State  As- 
sumption of  Expenses,  23  Yale  L.  Journ.  158, 
by  Simeon  E.  Baldwin. 

CORRUPTION.  An  act  done  with  an  in- 
tent to  give  some  advantage  inconsisteut  with 
official  duty  and  the  rights  of  others. 

It  includes  bribery,  but  is  more  comprehensive ; 
because  an  act  may  be  corruptly  done  though  the 
advantage  to  be  derived  from  it  be  not  offered  by 
another.    Merlin,  Rep. 

Something  against  law:  as,  a  contract  by 
which  the  borrower  agreed  to  pay  the  lender 
usurious  interest.  It  is  said,  in  such  case, 
that  it  was  corruptly  agreed,  etc 


CORRUPTION  OF  BLOOD.  The  incapac- 
ity to  inherit,  or  pass  an  inheritance,  in 
consequence  of  an  attainder  to  which  the 
party  has  been  subject.  Abolished  by  stats. 
3  &  4  Will.  IV.  c.  106,  and  33  &  34  Vict.  c. 
23 ;    1  Steph.  Com.  446. 

When  this  consequence  flows  from  an  at- 
tainder, the  party  is  stripped  of  all  honors 
and  dignities  he  possessed,  and  becomes  ig- 
noble. 

The  constitution  of  the  United  States,  art. 
3,  s.  3,  n.  2,  declarer,  that  "no  attainder  of 
treason  shall  work  corruption  of  blood  or 
forfeiture  except  during  the  life  of  the  per- 
son attainted." 

The  act  of  Congress  of  July  17,  1862,  for 
the  seizure  and  condemnation  of  enemies'  es- 
tates, with  the  resolution  of  the  same  date, 
does  not  conflict  with  this  section,  the  for- 
feiture being  only  during  the  life  of  the  of- 
fender; Bigelow  v.  Forrest,  9  Wall.  (U.  S.) 
339,  19  L.  Ed.  696 ;  Miller  v.  U.  S.,  11  Wall. 
(U.  S.)  268,  20  L.  Ed.  135 ;  Day  v.  Micou,  18 
Wall.  (U.  S.)  156,  21  L.  Ed.  860;  Ex  parte 
Lange,  18  Wall.  (U.  S.)  163,  21  L.  Ed.  872; 
Wallach  v.  Van  Kiswick,  92  U.  S.  202,  23  L, 
Ed.  473. 

So  far  as  it  prevented  descent  being  traced 
through  a  felon,  the  doctrine  of  corruption  of 
blood  was  abolished  in  England  in  1S34 ;  the 
whole  law  of  escheat  for  felony,  together 
with  the  king's  year,  day  and  waste,  was 
abolished  in  1S70. 

CORSE-PRESENT.  In  Old  English  Law. 
A  gift  of  the  second  best  beast  belonging  to 
a  man  at  his  death  taken  along  with  the 
corpse  and  presented  to  the  priest.  Stat.  21 
Hen.  VIII.  cap.  6 ;   Cowell ;   2  Bla.  Com.  425. 

CORSNED.  In  Old  English  Law.  A  piece 
of  barley  bread,  which,  after  the  pronuncia- 
tion of  certain  imprecations,  a  person  accus- 
ed of  crime  was  compelled  to  swallow. 

A  piece  of  cheese  or  bread  of  about  an  ounce 
weight  was  consecrated  with  an  exorcism  desiring 
of  the  Almighty  that  it  might  cause  convulsions 
and  paleness,  and  find  no  passage,  if  the  man  was 
really  guilty,  but  might  turn  to  health  and  nourish- 
ment if  he  was  innocent.  Spelman,  Gloss.  439.  It 
was  then  given  to  the  suspected  person,  who  at  the 
same  time  received  the  sacrament.  If  he  swallowed 
it  easily,  he  was  esteemed  innocent ;  if  it  choked 
him,  he  was  esteemed  guilty.     See  4  Bla.  Com.  345. 

CORTES.  The  name  of  the  legislative  as- 
semblies of  Spain  and  Portugal. 

CORVEE.  In  French  Law.  Gratuitous  la- 
bor exacted  from  the  villages  or  communities, 
especially  for  repairing  roads,  constructing 
bridges,  fortifications,  etc. 

Corve'e  seigneuriale  are  services  due  the 
lord  of  the  manor.  Guyot,  R6p.  Univ.;  3 
Low.  C.  1. 

COSBERING.  In  Feudal  Law.  A  prerog- 
ative or  seignorial  right  of  a  lord,  as  to  lie 
and  feast  himself  and  his  followers  at  his 
tenants'  houses.     Cowell. 

COSENING.  In  Old  English  Law.  An  of- 
fence whereby  anything  is  done  deceitfully, 


COSENING 


689 


COSTS 


whether  in  or  out  of  contracts,  which  cannot 
be  fitly  termed  by  any  especial  name.  Called 
in  the  civil  law  Stcllionatua.  West  Synib. 
pt.  2,  Indictment,  §  68;  Blount;  4  Bla.  Com. 
158. 

COSINAGE  (spelled,  also,  Cousinage,  Cos- 
enage).  A  writ  to  recover  possession  of  an 
estate  in  lands  when  a  stranger  has  entered 
and  abated  after  the  death  of  the  grand- 
father's grandfather  or  of  certain  collateral 
relations.     3  Bla.  Com.  *18G. 

Relationship;  affinity.  Stat.  4  Ben.  III. 
cap.  8;    3  Bla.  Com.  186;   Co.  Litt.  160  a. 


They  do  not  extend  to  the  government ; 
and  therefore  when  the  United  States,  or 
one  of   the   several  a    party  they 

neither   pay  nor   receive   costs,    unless   it  be 
so  expressly   provided   by  statute;     Irwin   v. 
Commissioners  of  Northumberland  County,  1 
S.  &  R.  (Pa.)  505;    D.  S.  v.  Barker,  2  v. 
(U.  S.)  ."'J.j,  4  L.  Ed.  271;    L'.  S.   . 
How.   (U.    S.)   29,   12   L.    Ed.   36;     Col. 
Powell,  23  Ala.  579;    State  v.   Kinne,  41   N. 
3;    State  v.  Harrington,   -  (Vt) 

41;    and  in  actions  of  a  public  nature, 
ducted  solely   for   the   public   benefit, 


are  rarely  given  against  public  office! 
COST.     The  cost  of  an  article   purchased    >:ifly  v  Trustees  of  Schools,  94  111. 
for  exportation  is  the  price  paid,  with  all  in-    (  uUUty  v#  Auditor  General,  -11  Mich.  182,  1  N. 

YV.  926;  Avery  v.  Slack,  19  Wend.  (N.  V.i 
50.  This  exemption  is  founded  on  the  sov- 
ereign character  of  the  state,  which  If 
ject  to  no  process;  3  Bla.  Com.  400;  M<  Kee- 
han  v.  Com.,  3  Pa.  153.  Bat  in  Missouri  v. 
Illinois,  202  U.   S.  598,  26   Sup.   Ct    713,  50 


cidental  charges  paid  at  the  place  of  expor- 
tation. Goodwin  v.  U.  S.,  2  Wash.  C.  C.  493, 
Fed.  Cas.  No.  5,554.  Cost  price  is  that  ac- 
tually paid  for  goods.  Buck  v.  Burk,  18  N. 
Y.  337.    See  Actual  Cost. 

COST-BOOK.     In  English  Law.     A  book  in 
which  a  number  of  adventurers  who  have  ob- 


L.  Ed.  1160,  it  was  said:    "So  far  as  ti. 


tained  permission  to  work  a  lode  and  have    nity  of  the  state  is  concerned,  that  is  its  own 


agreed  to  share  the  enterprise  in  certain 
proportions,  enter  the  agreement  and  from 
time  to  time  the  receipts  and  expenditures  of 
the  mine,  the  names  of  the  shareholders, 
their  respective  accounts  with  the  mine,  and 
transfers  of  shares.  These  associations  are 
called  "Cost-book  mining  companies.''  and 
are  governed  by  the  general  law  of  partner- 
ship.    Lindl.  Bartn.  *147. 

COSTS.  The  expenses  incurred  by  the 
parties  in  the  prosecution  or   defence  of  a 

suit. 

They  are  distinguished  from  fees  in  being  an  al- 
lowance to  a  party,  for  expenses  incurred  in  con- 
ducting his  suit;  whereas  fees  are  a  compensation 
to  an  officer  for  services  rendered  in  the  progress  of 
the  cause.     Musser  v.  Good,  11  S.  &  R.   (Pa.)  248. 

No  costs  were  recoverable  by  either  plaintiff  or  de- 
fendant at  common  law.  They  were  first  given  to 
plaintiff  by  the  statute  of  Gloucester,  6  Edw.  I.  c.  1, 
which  has  been  substantially  adopted  in  all  the 
United  States. 

The  ultimate  power  to  impose  costs  must 
be  found  in  a  statute.  This  may  be  granted 
by  the  legislature  in  general  terms  to  the 
courts  who  may  then  establish  a  fee  bill. 
This  grant  has  been  made  by  congress ;  Jor- 
dan v.  Woollen  Co.,  3  Cliff.  239;  Fed.  Cas. 
No.  7,516.  This  was  before  the  Revised  stat- 
utes but  the  fee  bill  of  1853  which  was  then 
under  consideration  by  that  court  does  not 
differ  in  any  important  respect  from  the  ap- 
propriate sections  of  the  Revised  Statutes; 
Tesla  Electric  Co.  v.  Scott,  101  Fed.  524.  The 
cases  are  collected  in  Kelly  v.  Ry.  Co.,  83 
Fed.  183,  and  the  various  statutes  are  cited 
in  Hathaway  v.  Roach,  Fed.  Cas.  No.  6,213; 
Costs  in  Civil  Cases,  Fed.  Cas.  No.  18.2S4; 
The  Baltimore,  8  Wall.  (U.  S.)  38S,  19  L.  Ed. 
463. 

Statutes  which  give  costs  are  not  to  be 
extended  beyond  the  letter,  but  are  to  be 
construed  strictly;  2  Stra.  1006,  1069;  8 
Burr.  12S7;  Com.  v.  Tilghman,  4  S.,&  R.  (Pa.) 
129 ;  Farry  v.  Thomson,  1  Rich.  (S.  C.)  4. 
Bouv.— 44 


affair.  The  United  States  has  not  been  above 
taking  costs."  U.  S.  v.  Sanborn,  135  U.  S. 
271,  10  Sup.  Ct.  S12,  34  L.  Ed.  112.     Bale  24 

of  the  Supreme  Court  of  the  United  States 
provides  that  no  costs  shall  be  allowed  to  or 
against  the  United  States  in  equity.  The 
king  neither  receives  nor  pays  costs;  (1785) 
T.  R.  86. 

The  right  of  the  state  to  costs  on  convic- 
tion in  criminal  cases  is  generally  declared 
by  statute. 

In  many  cases,  the  right  to  recover  costs 
is    made   to    depend,    by    statute,    upon    the 
amount  of  the  verdict  or  judgment     Where 
there  is  such  a  provision,  and  the  verdict  is 
for  less  than  the  amount  required  by  statute 
to  entitle  the  party  to  costs,  the  right  to  costs, 
in  general,   will   depend   upon   the   mode  in 
which   the   verdict  has  been   reduced    below 
the  sum  specified  in  the  act.     In  such  • 
the  general   rule  is   that  if  the  amount  be 
reduced  by  evidence  of  direct  payment,  the 
party  shall  lose  his  costs;    but  if  by  set-off 
or  other  collateral  defence  he  will  be  enti- 
tled  to   recover   them ;     8    East   2S,   347 ;     - 
Price  19;    4  Bingh.  169;    Cooper  v.  Coats,  1 
Dall.  (U.  S.)  30S,  1  L.  Ed.  150;    Bunner  v. 
Neil,  1  Dall.  (U.  S.)  457,  1  L.  Ed.  222  :  stew- 
art  v.  Mitchell's  Adm'rs,  13  S.  &  R.  (Pa.)  287. 
When  a  ease  is  dismissed  for  want  of  ju- 
risdiction over  the   person,  no   costs  are  al- 
lowed to  the  defendant  unless  expressly   giv- 
en by  statute.    The  difficulty  in  giving  costs, 
in  such  case,  is  the  want  of  power.     If  the 
case  be  not  legally  before  the  court,  it  has  no 
more  Jurisdiction  to  award  costs  than  it  has 
to  grant  relief;    Burnham  v.  Rangeley,  2  W. 
&  M.  117,  Fed.  Oaa  No.  2,177;   Bank  of  Cum- 
berland v.  Willis.  3  Sumn.  47.°..  Fed.  Cas.  No. 
885;   Clark  v.  Rockwell.  15  Mass.  221;    Banks 
v.  Fowler,  3  Litt.  (Ky.)  332;    Barnes  v.  Oar- 
lisle,  3  N.   II.  130;  Paine  v.  Commissioners, 
Wright  (Ohio)  417. 


COSTS 


690 


COSTS  DE  INCREMENTS 


In  equity,  the  giving  of  costs  is  entirely 
discretionary,  as  well  with  respect  to  the 
period  at  which  the  court  decides  upon  them 
as  with  respect  to  the  parties  to  whom  they 
are  given. 

In  the  exercise  of  their  discretion,  courts 
of  equity  are  generally  governed  hy  certain 
fixed  principles  which  they  have  adopted  on 
the  subject  of  costs.  It  was  the  rule  of  the 
civil  law  that  vicius  victori  in  expensis  con- 
demnatus  est;  and  this  is  the  general  rule 
adopted  in  courts  of  equity  as  well  as  in 
courts  of  law,  at  least  to  the  extent  of  throw- 
ing it  upon  the  failing  party  to  show  the 
existence  of  circumstances  to  displace  the 
prima  facie  claim  to  costs  given  by  success 
to  the  party  who  prevails;  3  Dan.  Ch.  Pr. 
1515. 

In  patent  cases  in  equity  costs  will  not 
be  allowed  a  plaintiff  where  some  of  the 
claims  are  withdrawn  at  the  argument  and 
some  adjudged  invalid,  though  others  are 
sustained;  Thomson-Houston  Electric  Co.  v. 
R.  Co.,  71  Fed.  886. 

An  executor  or  administrator  suing  at  law 
or  in  equity  in  his  representative  capacity  is 
not  personally  liable  to  the  opposite  party 
for  costs  in  case  he  is  unsuccessful,  if  the 
litigation  were  carried  on  in  good  faith  for 
the  benefit  of  the  estate;  Gratz  v.  Bayard, 
11  S.  &  R.  (Pa.)  47 ;  Calender's  Adm'r  v.  Ins. 
Co.,  23  Pa.  471.  But  the  rule  is  otherwise 
where  vexatious  litigation  is  caused  by  the 
executor  or  administrator,  and  where  he  has 
been  guilty  of  fraud  or  misconduct  in  rela- 
tion to  the  ,suit;  1  Wnis.  Exec.  451;  Show 
v.  Conway,  7  Pa.  136,  137. 

Costs,  when  recovered,  belong  to  the  client ; 
Celluloid  Mfg.  Co.  v.  Chandler,  27  Fed.  12. 

In  divorce,  the  wife's  costs  can  be  taxed 
de  die  in  diem;  Graves  v.  Cole,  19  Pa.  171, 
citing  2  Hagg.  Cons.  204. 

Ordinarily  an  appeal  does  not  lie  from  a 
decree  for  costs  only  in  a  chancery  suit;  but 
there  are  exceptions  to  the  rule,  turning  on 
the  question  of  the  discretionary  power  of 
the  trial  court  respecting  costs.  A  decree  for 
such  costs  as  are  discretionary  is  not  appeal- 
able, but  one  for  costs  not  in  the  discretion 
of  the  court  is  appealable  if  the  amount  is 
sufficient  to  confer  jurisdiction ;  Nutter  v. 
Brown,  58  W.  Va.  237,  52  S.  E.  88,  1  L.  R.  A. 
(N.  S.)  10S3,  6  Ann.  Cas.  94. 

See  Double  Costs;  Treble  Costs;  Surety 
Company;  Actual. 

COSTS  OF  THE  DAY.  Costs  incurred  in 
preparing  for  trial  on  a  particular  day.  Ad. 
Eq.  343. 

In  English  practice,  costs  are  ordered  to 
be  paid  by  a  plaintiff,  who  neglects  to  go  to 
trial  according  to  notice ;  Mozley  &  W.  Law 
Diet. ;   Lush,  Pr.  496. 

COSTS  DE  INCREMENTO  (increased 
costs,  costs  of  increase).  Costs  adjudged  by 
the  court  in  addition  to  those  assessed  by  the 


jury.     Day  v.  Woodworth,  13  How.   (TJ.   S.) 
372,  14  D.   Ed.  181. 

The-  cost  of  the  suit,  etc.,  recovered  originally 
under  the  statute  of  Gloucester  is  said  to  be  the 
origin  of  costs  de  incremento;  Bull.  N.  P.  328.a. 
Where  the  statute  requires  costs  to  be  doubled  in 
case  of  an  unsuccessful  appeal,  costs  de  incremento 
stand  on  the  same  footing  as  jury  costs ;  2  Stra. 
1048 ;  Taxed  Costs.  Costs  were  enrolled  in  England 
in  the  time  of  Blackstone  as  increase  of  damages; 
3   Bla.    Com.   399. 

COTERELLUS.    A  cottager/ 

Coterellus  was  distinguished  from  cotarius  in  this, 
that  the  cotarius  held  by  socage  tenure,  but  the 
coterellus  held  in  mere  villenage,  and  his  person, 
issue,  and  goods  were  held  at  the  will  of  the  lord. 
Cowell. 

COTLAND.  Land  held  by  a  cottager, 
whether  in  socage  or  villenage.  Cowell; 
Blount. 

COTSETUS.  A  cottager  or  cottageholder 
who  held  by  servile  tenure  and  was  bound  to 
do  the  work  of  the  lord.    Cowell. 

COTTAGE,  COTTAGIUM.  In  Old  English 
Law.  A  small  house  without  any  land  be- 
longing to  it,  whereof  mention  is  made  in 
stat.  4  Edw.  I. 

But,  by  stat.  31  Eliz.  cap.  7,  no  man  may  build 
such  cottage  for  habitation  unless  he  lay  unto  it 
four  acres  of  freehold  land,  except  in  market-towns, 
cities,  or  within  a  mile  of  the  sea,  or  for  the  habita- 
tion of  laborers  in  mines,  shepherds,  foresters,  sail- 
ors, etc.  Twenty  years'  possession  of  cottage  gives 
good  title  as  against  the  lord ;  Bull.  N.  P.  103  a, 
104.  By  a  grant  of  a  cottage  the  curtilage  will 
pass ;    4  Vin.  Abr.  582. 

COTTIER  TENANCY.  A  species  of  tenan- 
cy in  Ireland,  constituted  by  an  agreement  in 
writing,  and  subject  to  the  following  terms: 
That  the  tenement  consist  of  a  dwelling- 
house  wTith  not  more  than  half  an  acre  of 
land ;  at  a  rental  not  exceeding  51.  a  year ; 
the  tenancy  to  be  for  not  more  than  a  month 
at  a  time ;  the  landlord  to  keep  the  house  in 
good  repair.  Landlord  and  Tenant  Act  (Ire- 
land), 23  &  24  Vict  c.  154,  s.  81. 

C0UCHANT.  Lying  down.  Animals  are 
said  to  have  been  levant  and  couchant  when 
they  have  been  upon  another  person's  land, 
damage  feasant,  one  night  at  least.  3  Bla. 
Com.  9. 

COULISSE.  The  stock  brokers'  curb  mar- 
ket in  Paris. 

COUNCIL  (Lat.  concilium,  an  assembly). 
The  legislative  body  in  the  government  of 
cities  or  boroughs.  An  advisory  body  select- 
ed to  aid  the  executive.  See  Opinion  of  the 
Justices,  14  Mass.  470 ;  Opinion  of  the  Justic- 
es, 3  Pick.  (Mass.)  517 ;  In  re  Adams,  4  Pick. 
(Mass.)  25. 

A  governor's  council  is  still  retained  in  some  of 
the  states ;  70  Me.  570.  It  is  analogous  in  many 
respects  to  the  privy  council  (q.  v.),  of  the  king  of 
Great  Britain  and  of  the  governors  of  the  British 
colonies,  though  of  a  much  more  limited  range  of 
duties. 

Common  council  is  a  term  frequently  ap- 
plied to  the  more  numerous  branch  of  the 
legislative  bodies  in  cities. 


COUNCIL 


691 


COUNSELLOR  AT  LAW 


The  British  parliament  is  the  common 
council  of  the  whole  realm. 

COUNCIL  OF  THE  BAR.  A  body  compos- 
ed of  members  of  the  English  bar  which  gov- 
erns the  bar.  It  hears  complaints  against 
barristers  and  reports  its  findings  with  rec- 
ommendations to  the  benchers  of  the  Inn  of 
Court  of  which  the  barrister  is  ii  member, 
who  alone  can  act  Learning,  Phila.  Lawy.  in 
Loud.  Courts  07. 


COUNCIL   OF    LEGAL   EDUCATION. 

Legal  Education. 


See 


COUNSEL.  The  counsellors  who  are  as- 
sociated in  the  management  of  a  particular 
cause,  or  who  act  as  legal  advisers  in  ref- 
erence to  any  matter  requiring  Legal  knowl- 
edge and  Judgment. 

The  term  is  used  both  as  a  singular  and  plural 
noun,  to  denote  one  or  more.  It  is  usual  to  say  of 
one  concerned  in  a  case  that  he  is  "of  counsel." 

Originally  there  was  no  distinction  between 
council  and  counsel;  both  were  consilium. 
Ubort,  Legisl.  Meth.  5. 

Knowledge.  A  grand  jury  is  sworn  to 
keep  secret  "the  commonwealth's  counsel, 
their  fellows',  and  their  own." 

COUNSELLOR    AT    LAW.      An    officer    in 

the  supreme  court  of  the  United  States,  and 
in  some  other  courts,  who  is  retained  by  a 
party  in  a  cause  to  conduct  the  same  on  its 
trial  on  his  behalf. 

He  differs  from  an  attorney  at  law. 

In  the  supreme  court  of  the  United  States,  the 
two  degrees  of  attorney  and  counsel  were  at  first 
kept  separate,  and  no  person  was  permitted  to 
practise  in  both  capacities,  but  the  present  practice 
Is  otherwise;  Weeks,  Att.  54.  It  is  the  duty  of  the 
counsel  to  draft  or  review  and  correct  the  special 
pleadings,  to  manage  the  cause  on  trial,  and,  dur- 
ing the  whole  course  of  the  suit,  to  apply  estab- 
lished principles  of  law  to  the  exigencies  of  the 
case;  1  Kent  307.  In  England  the  term  "counsel" 
is   applied   to   a  barrister. 

Generally,  in  the  courts  of  the  various  states  the 
same  person  performs  the  duties  of  counsellor  and 
attorney  at  law. 

In  giving  their  advice  to  their  clients, 
counsel  have  duties  to  perform  to  their  cli- 
ents, to  the  public  and  to  themselves.  In 
such  cases  they  have  thrown  upon  them 
something  which  they  owe  to  their  adminis- 
tration of  justice,  as  well  as  to  the  private 
interests  of  their  employers.  The  interests 
propounded  for  them  ought,  in  their  own  ap- 
prehension, to  be  just,  or  at  least  fairly 
disputable;  and  when  such  interests  are 
propounded,  they  ought  not  to  be  pursued 
per  fas  et  nefas;  1  Hagg.  Adin.  ^-li'.  An  at- 
torney and  counsellor  is  not  an  officer  of  the 
United  States,  he  is  an  officer  of  the  court. 
I  lis  right  to  appear  for  suitors  and  to  argue 
causes  is  not  a  mere  indulgence,  revocable 
at  the  pleasure  of  the  court,  or  at  the  com- 
mand of  the  legislature.  It  is  a  right  of 
which  he  can  be  deprived  only  by  the  judg- 
ment of  the  court,  for  moral  or  professional 


delinquency ;    Ea>  parte  Garland,  4  Wall.  (U. 
S.)333,  18  L.  Ed.  366. 

See  Attorney;  Privilege;  Confidential 
Communications;  Disuab;  Barium  lb. 

COUNT  (Fr.  cotnte;  from  the  Latin  comes). 
An  earl. 

It  gave  way  as  a  distinct  title  to  the  Saxon  earl, 
but  was  retained  In  couuttss,  viscount,  and  as  the 
basis  of  county.  Termes  dc  la  ley;  1  Bla.  Com.  398. 
See  Comes. 

In  Pleading.  (Fr.  contc,  a  narrative). 
The  plaintiff's  statement  of  his  cause  of  ac- 
tion. 

This  word  Is  In  our  old  law-books  used  synony- 
mously with  declaration;  but  practice  has  intro- 
duced the  following  distinction.  When  the  plaintiff's 
■  lit  embraces  only  a  single  cause  of  action, 
and  he  makes  only  one  statement  of  it,  that  state- 
ment is  called,  Indifferently,  a  declaration  or  count; 
though  the  former  is  the  more  usual  term,  liut 
when  the  suit  embraces  two  or  more  causes  of  action 
(each  of  which,  of  course,  requires  a  different 
statement),  or  when  the  plaintiff  makes  two  or  more 
different  statements  of  one  and  the  same  cause  of 
action,  each  several  statement  Is  called  a  count, 
and  all  of  them,  collectively,  constitute  the  declara- 
tion. In  all  cases,  however,  in  which  there  are  two 
or  more  counts,  whether  there  is  actually  but  one 
cause  of  action  or  several,  each  count  purports, 
upon  the  face  of  It,  to  disclose  a  distinct  right  of 
action,  unconnected  with  that  stated  in  any  of  the 
other  counts. 

One  object  proposed  in  inserting  two  or 
more  counts  in  one  declaration  when  there 
is  in  fact  but  one  cause  of  action,  is,  in 
some  cases,  to  guard  against  the  danger  of 
an  insufficient  statement  of  the  cause,  where 
a  doubt  exists  as  to  the  legal  sufficiency  of 
one  or  another  of  two  different  modes  of 
declaring;  but  the  more  usual  end  pro; 
in  inserting  more  than  one  count  in  such 
case  is  to  accommodate  the  statement  to  the 
cause,  as  far  as  may  be,  to  the  possible  state 
of  the  proof  to  be  exhibited  on  trial,  or  to 
guard,  if  possible,  against  the  hazard  of  the 
proofs  varying  materially  from  the  state- 
ment of  the  cause  of  action ;  so  that,  if  one 
or  more  of  several  counts  be  not  adapted  to 
the  evidence,  some  other  of  them  may  be  so; 
Gould,  PL  c.  4,  ss.  2,  3,  4;  Steph.  PL 
Doctrina  Viae.  ITS;  3  Com.  Dig.  1291;  Dane, 
Abr.  Index.  In  real  actions,  the  declaration 
is  usually  called  a  count;  Steph.  PI.  29. 
Common  Counts. 

COUNT   SUR    CONCESSIT   SOLVERE.     A 

claim  based  upon  a  promise  to  pay.  An  an- 
cient count  in  the  mayor's  court  of  London 
and  now  commonly  used  there.  Under  it  the 
plaintiff  can  sue  for  any  liquidated  demand, 
but  not  for  money  due  under  a  covenant. 
Particulars  defining  more  precisely  the  na- 
ture of  the  claim  must  be  delivered  with  the 
declaration.     Odger,  C.  L.  1029. 

COUNT  AND  COUNT-OUT.  These  words 
refer  to  the  count  of  the  house  of  commons 
by  the  speaker.  Forty  members,  including 
the  speaker,  are  required  to  constitute  a 
quorum  Each  day  alter  parliament  is  open- 
ed, the  speaker  counts  the  house.     If  forty 


COUNT  AND  COUNT-OUT 


692 


COUNTER-CLAIM 


members  are  not  present  he  waits  till  four 
o'clock,  and  then  counts  the  house  again.  If 
forty  members  are  not  then  present,  he  at 
once  adjourns  it  to  the  following  meeting 
day.     May,  Pari.  Prac.  219. 

COUNTER  (spelled,  also,  Compter).  The 
name  of  two  prisons  formerly  standing  in 
London,  but  now  demolished.  They  were 
the  Poultry  Counter  and  Wood  Street  Coun- 
ter. Cowell;  Whish.  L.  D.;  Coke,  4th  Inst. 
248. 

COUNTER  AFFIDAVIT.  An  affidavit 
made  in  opposition  to  one  already  made. 
This  is  allowed  in  the  preliminary  examina- 
tion of  some  cases. 

COUNTER-BOND.  A  bond  to  indemnify. 
2  Leon.  90. 

COUNTER-CLAIM.  A  liberal  practice  in- 
troduced by  the  reformed  codes  of  procedure 
in  many  of  the  United  States,  and  compre- 
hending Recoupment  and  Set-off,  g.  v., 
though  broader  than  either. 
The  New  York  code  thus  defines  it: 
The  counter-claim  must  tend,  in  ,  some  way,  to 
diminish  or  defeat  the  plaintiff's  recovery,  and  must 
be  one  of  the  following  causes  of  action  against  the 
plaintiff,  or,  in  a  proper  case,  against  the  person 
whom  he  represents,  and  in  favor  of  the  defendant, 
or  of  one  or  more  defendants,  between  whom  and 
the  plaintiff  a  separate  judgment  may  be  had  in  the 
action: — 

1.  A  cause  of  action  arising  out  of  the  contract  or 
transaction,  set  forth  in  the  complaint  as  the  foun- 
dation of  the  plaintiff's  claim,  or  connected  with  the 
subject  of  the   action. 

2.  In  an  action  on  contract,  any  other  cause  of  ac- 
tion on  contract  existing  at  the  commencement  of 
the  action.  N.  Y.  Code,  1889,  §  501.  See  National 
Fire  Ins.  Co.  v.  McKay,  21  N.  Y.  191 ;  Waddell  v. 
Darling,  51  id.  327 ;  Smith  v.  Hall,  67  id.  48 ;  Elwell 
v.  Skiddy,  77  id.  282  ;  Ballou  v.  Ballou,  78  id.  325  ; 
Cook  v.  Jenkins,  79  id.  575  ;  Coffin  v.  McLean,  80  id. 
560;  Ward  v.  Craig,  87  id.  550;  Clapp  v.  Wright, 
21  Hun  (N.  Y.)  240  ;  Dietrich  v.  Koch,  35  Wis.  618  ; 
Devries  v.  Warren,  82  N.  C.  356;  Howe  Mach.  Co. 
v.  Reber,  66  Ind.  498 ;  Brady  v.  Brennan,  25  Minn. 
210. 

By  such  statutes  when  a  counter-claim  is 
established  the  defendant  may  recover  in  the 
same  action  the  amount  by  which  his  claim 
exceeds  that  of  the  plaintiff.  A  question  as 
to  which  the  cases  vary  in  result  is  the  ef- 
fect upon  the  jurisdiction  when  the  counter- 
claim exceeds  the  limit  of  the  court.  Some 
courts  hold  that  the  jurisdiction  is  not  oust- 
ed by  reason  of  excess  in  the  amount  of  the 
counter-claim ;  Howard  Iron  Works  v.  Ele- 
vating Co.,  176  N.  Y.  1,  68  N.  E.  66;  aliter, 
Haygood  v.  Boney,  43  S.  C.  63,  20  S.  E.  803 ; 
but  it  is  said  that  the  majority  of  the  cases 
deny  the  right  in  such  case  to  file  the  coun- 
ter-claim;  17  Harv.  L.  Rev.  350  (citing  Gris- 
wold  v.  Pieratt,  110  Cal.  259,  42  Pac.  820, 
and  Almeida  v.  Sigerson,  20  Mo.  497),  where 
that  view  is  approved. 

A  counter-claim  is  a  matter  which  is  capa- 
ble of  use  as  the  basis  of  a  judgment  against 
the  plaintiff,  and,  of  course,  may  be  used  as 
a  set-off ;    Marconi   Wireless   Telegraph   Co. 


of   America    v.    Electric   Signaling   Co.,    206 
Fed.  295. 

COUNTER-LETTER.  An  agreement  to 
reconvey  where  property  has  been  passed  by 
absolute  deed  with  the  intention  that  it  shall 
serve  as  security  only.  A  defeasance  by  a 
separate  instrument.  Livingston  v.  Story,  11 
Pet.  (U.  S.)   351,  9  L.  Ed.  746. 

COUNTER-SECURITY.  Security  given  to 
one  who  has  become  security  for  another, 
the  condition  of  which  is,  that  if  the  one 
who  first  became  surety  shall  be  damnified, 
the  one  who  gives  the  counter-security  will 
indemnify  him. 

COUNTERFEIT.  To  make  something 
false  in  the  semblance  of  that  which  is  true. 
It  always  implies  a  fraudulent  intent.  It 
refers  usually  to  imitations  of  coin  or  paper 
money.  See  Vin.  Abr.  Counterfeit;  State  v. 
Calvin,  R.  M.  Charlt  (Ga.)  151;  Kirby  y. 
State,  1  Ohio  St.  185;  Fobgeby. 

COUNTERMAND.  A  change  or  recalling 
of  orders  previously  given. 

Express  countermand  takes  place  when 
contrary  orders  are  given  and  a  revocation 
of  the  prior  orders  is  made. 

Implied  countermand  takes  place  when  a 
new  order  is  given  which  is  inconsistent 
with  the  former  order. 

When  a  command  or  order  has  been  given, 
and  property  delivered,  by  which  a  right 
vests  in  a  third  person,  the  party  giving  the 
order  cannot  countermand  it.  For  example, 
if  a  debtor  should  deliver  to  A  a  sum  of 
money  to  be  paid  to  B,  his  creditor,  B  has 
a  vested  right  in  the  money,  and,  unless  he 
abandon  that  right  and  refuse  to  take  the 
money,  the  debtor  cannot  recover  it  from  A. 
1  Rolle,  Abr.  32,  pi.  13;  Yelv.  164;  Styles 
296.  See  3  Co.  26  6 ;  2  Ventr.  298 ;  10  Mod. 
432;  Vin.  Abr.  Countermand  (A,  1),  Bail- 
ment (D)  ;  9  East  49;  Bac.  Abr.  Bailment 
(D)  ;  Com.  Dig.  Attorney  (B,  9),  (C,  8); 
Dane,  Abr.  Countermand. 

COUNTERPART.  Formerly,  each  party 
to  an  indenture  executed  a  separate  deed : 
that  part  which  was  executed  by  the  grantor 
was  called  the  original,  and  the  rest  the 
counterparts.  It  is  now  usual  for  all  the 
parties  to  execute  every  part ;  and  this  makes 
them  all  originals.     2  Bla.  Com.  296. 

In  granting  lots  subject  to  a  ground-rent 
reserved  to  the  grantor,  both  parties  execute 
the  deeds,  of  which  there  are  two  copies; 
although '  both  are  original,  one  of  them  is 
sometimes  called  the  counterpart.  See  12 
Vin.  Abr.  104;  Dane,  Abr.  Index;  7  Com. 
Dig.  443 ;  Merlin,  Rep.  Double  Ecrit. 

COUNTERPLEA.  A  plea  to  some  matter 
incidental  to  the  main  object  of  the  suit,  and 
out  of  the  direct  line  of  pleadings.  Steph. 
PL,  Andr.  ed.  165 ;  2  Wms.  Saund.  45  h. 
Thus,  counterplea  of  oyer  is  the  defendant's 
allegations  why  oyer  of  an  instrument  should 


COUNTERPLEA 


093 


COUNTY 


not  be  granted.  Counter plea  to  aid  prayer 
is  the  demandant's  allegation  why  the  vouch- 
ee of  the  tenant  in  a  real  action,  or  a  stran- 
ger who  asks  to  come  in  to  defend  his  right, 
should  not  he  admitted.  Counterplea  of 
voucher  is  the  allegation  of  the  vouchee  in 
avoidance  of  the  warranty  after  admission 
to  plead.  Counterpleas  are  of  rare  occur- 
rence. Termes  de  in  Ley;  Com.  Dig.  Vouch- 
er (B,  1,  2)  ;  Dane,  Abr. 

COUNTEUR.  In  the  time  of  Edward  I,  a 
pleader;  also  called  a  Narrator,  and  Ser- 
jeant-Counteur. 

COUNTRY.  A  word  often  used  in  plead- 
ing and  practice.  Usually  signifies  a  jury, 
or  the  inhabitants  of  a  district  from  which 
a  jury  is  to  he  summoned.     3  Bla.  Com.  349; 

4  id.  349;  Steph.  PI.  73,  78. 

COUNTY.  One  of  the  civil  divisions  of  a 
Country  for  judicial  and  political  purposes. 
l  Bla.  Com.  113.     Etymologically,  it  denotes 

that  portion  of  the  country  under  the  im- 
mediate government  of  a  count.  1  Bla.  Com. 
116. 

The  states  are  generally  divided  into  coun- 
ties. Counties  are.  in  many  of  the  states, 
divided  into  townships  or  towns.  In  the 
New  England  states,  however,  towns  are  the 
basis  of  all  civil  divisions,  and  the  counties 
are  rather  to  be  considered  as  aggregates  of 
towns,  so  far  as  their  origin  is  concerned. 
In  Pennsylvania,  the  state  was  originally  di- 
vided into  three  counties  by  William  Penn. 
See  Proud's  Hist.  Pa.  234 :  2  id.  258. 

In  some  states,  a  county  is  considered  a 
corporation;  Coles  v.  Madison  County, 
Breese  (111.)  154,  12  Am.  Dec.  1G1 ;  in  others, 
it  is  held  a  quasi  corporation;  Inhabitants  of 
County  of  Hampshire  v.  Franklin  County, 
10  Mass.  ST  ;  Emerson  v.  Washington  Coun- 
ty, 9  Greenl.  (Me.)  88;  Jackson  v.  Cory,  8 
Johns.  (N.  Y.)  385;  Boykin's  Devisees  v. 
Smith,  3  Munf.  (Va.)  102.  In  regard  to  the 
division  of  counties,  see  Drake's  Adm'r  v. 
Vaughan,  6  J.  J.  Marsh.  (Ky.)  147;  State  v. 
Jones,  9  N.  J.  L.  357,  17  Am.  Dec.  4S3 ;  Gary 
v.  People,  9  Cow.  (N.  Y.)  640;  Walsh  v. 
Com..  S9  Pa.  419,  33  Am.  Rep.  771;  Blount 
County  v.  Loudon  County,  8  Baxt.  (Tenn.) 
74;  Stuart  v.  Bair,  id.  141;  Newton  v.  Com- 
missioners, 100  U.  S.  548,  25  L.  Ed.  710; 
Eagle  v.  Beard,  33  Ark.  497 ;  Cocke  v.  Gooch, 

5  Heisk.  (Tenn.)  294.  A  county  may  he  re- 
quired by  act  of  legislature  to  build  a  public 
work  outside  the  county  limits,  where  it  is 
of  special  interest  to  the  people  of  the  coun- 
ty; Carter  v.  Bridge,  KM  Mass.  236;  Talbot 
County  Com'rs  v.  County  Com'rs,  50  Mil.  245. 

A  state  has  a  greater  latitude  of  control 
over  a  county,  than  over  a  town  or  city,  as 
the  latter  had  a  two  Cold  character— public. 
as  an  agency  of  the  state,  and  private,  as 
affecting  matter  of  local  concern;  State  v. 
Board  of  Com'rs,  170  Ind.  59."..  85  X.  E.  513. 

The  terms    "county"   and    "people   of   the 


county"   are,   or  may   be,   used  Interc 
ably:    St.    Louis  County   Court   v.    Griswold, 
58  Mo.    175. 

In  the  English  law.  this  word  signifies  the 
same  as   shire, — county  from 

the  French,  and  shire  from  the  S  Both 

these  words  signify  a  circuit  or 
the  realm  into  which  tin-   n 
vided,  for  the  better  goVenuni  :      I  i"  and 

the    more    easy    administration    of    ji 
There  is  no  part  of  England  that  is  not  with- 
in -Mine  county;  and  the  shirereeve 
was  the  governor  of  the  province,  under  the 
comes,  earl,  or  count. 

COUNTY    COMMISSIONERS.     Certain   of- 

ficers  generally  intrusted  with  the  Bupeiin 
tendence  of  the  collection  of  the  county  tax- 
es ami  the  disbursements  made  1'ir  the  coun- 
ty. They  are  Invested  by  the  local  laws  with 
various  powers.  In  some  of  the  states  tin;, 
tailed  supervisors. 

COUNTY  CORPORATE.  A  city  or  town, 
with  more  or  less  territory  annexed  consti- 
tuting  a  county  by' itself.  1  Bla.  Com.  12". 
See  siate  v.  linn.  4  Mo.  App.  347.  They  dif- 
fer in  no  material  points  from  other  coun- 
ties. 

COUNTY  COURTS.  A  number  of  differ- 
ent  local  courts  existed  in  England  in  early 
times,  but  their  jurisdiction  was  gradually 
absorbed  by  the  royal  courts  of  justice  to 
such  an  extent  that  in  the  1Mb  century  prac- 
tically all  the  judicial  work  of  the  country 
was  done  by  the  common  law  courts,  the 
Lord  Chancellor  or  the  Master  of  the  Bolls: 
1  Holdsw.  Hist.  E.  L.  41*.  See  the  various 
titles  under  Court.  In  1846  courts  of  limit- 
ed jurisdiction  were  established  for  England 
and  Wales.  They  were  inferior  courts  of 
record.  Various  acts  in  reference  to  these 
courts  were  consolidated  in  an  act  passed  in 
1888  under  which  England  and  Wales  were 
divided  in  56  districts,  in  which,  as  a  rule. 
a  County  Court  is  held  by  one  of  the  53 
County  Court  judges  once  in  every  month, 
except  September.  The  judges,  who  must 
be  barristers  of  seven  years  standing,  are 
appointed  by  the  Lord  Chancellor  (except 
in  the  Duchy  of  Lancaster). 

Jurisdiction  depends  mainly  on  the  place 
where  the  defendant  resides  or  the  property 
in  dispute  is  situated,  and  the  nature  and 
amount  of  the  claim.  Ordinarily,  suit  must 
be  brought  in  the  district  where  defendant 
resides  or  carries  on  business,  hut  there  are 
special  exceptions 

The  ordinary  jurisdiction  extends  (if  the 
amount  in  controversy  does  QOt  exceed  £100) 
to  personal  actions,  ejectment,  the  trial  of 
title  to  corporeal  or  incorporeal  heredita- 
ments. A  County  Court  cannot,  except  by 
consent,  try  any  action  in  which  the  title  t" 
any  toll,  fair,  market  or  franchise  (includ- 
ing patent-'  is  in  question,  or  for  libel,  slan- 
der, seduction  or  breach  of  promise  of  mar 


COUNTY  COURTS 


694 


COUPONS 


riage.  It  has  all  the  powers  in  equity  of  the 
High  Court  of  Justice  (up  to  the  jurisdic- 
tional amount  of  £500)  in  administration 
actions  by  creditors,  legatees,  devisees,  heirs- 
at-law  and  next  of  kin,  in  actions  for  the  ex- 
ecutions of  trusts,  for  the  foreclosure  of  any 
charge  or  lien,  for  the  specific  performance, 
reforming  or  cancelling  of  agreements  for  the 
sale  or  lease  of  property,  for  dissolution  or 
winding  up  partnerships. 

In  common  law,  but  not  in  equity,  the 
parties  may  agree  that  a  particular  court 
may  try  an  action  for  a  claim  of  any  amount. 
In  the  large  provincial  towns  it  is  a  court 
of  bankruptcy  with  all  the  powers  therein 
of  the  High  Court.  Several  of  the  County 
Courts  have  jurisdiction  in  admiralty.  Nu- 
merous acts  have  extended  their  jurisdiction 
in  special  instances. 

In  American  Law.  Courts  in  many  of  the 
state?,  of  the  United  States  and  in  Canada, 
of  widely  varying  powers. 

COUNTY  PALATINE.  An  independent 
principality  in  England  and  Wales  of  the 
continental  type  in  which  the  king's  writ 
did  not  run.  1  Holdsw.  Hist.  E.  L.  49.  In 
feudal  times  political  power  was  distributed 
among  the  larger  landowners,  who  procured 
grants  to  themselves  of  the  new  processes 
and  powers  of  the  Curia  Regis.  Commission- 
ers were  sent  out  (1274)  to  enquire  by  what 
warrant  different  landowners  were  exercis- 
ing their  jura  regalia.  Many  franchises 
were  cancelled ;  the  franchises  of  some  re- 
mained. The  Counties  Palatine  were  Dur- 
ham, Lancaster  and  Chester  (by  prescrip- 
tion). The  palatine  jurisdiction  also  existed 
in  Wales  and  the  Stannaries  (see  Stannary 
Courts)  and  in  a  lesser  degree  in  the  liber- 
ties of  Ely,  Pembroke  (taken  away  by  27 
Henry  VIII.  c.  26,  §  17)  and  Hescham  and 
the  Universities  of  Oxford  and  Cambridge. 
id.  The  name  was  derived  from  palatinus 
used  on  the  continent  to  imply  something 
peculiarly  royal.  Lapsley,  County  Palatin- 
ate of  Durham.  Coke  says  the  powers  of 
those  that  had  counties  palatinate  was  King- 
like, for  they  might  pardon  treasons,  mur- 
ders, felonies  and  outlawries  and  make  jus- 
tices in  Eyre,  of  assize,  etc.  All  writs  ran, 
and  criminal  process  was  made,  in  the  name 
of  the  person  having  the  County  Palatine.  4 
Inst.  205. 

See  Courts  of  the  Counties  Palatine. 

COUNTY  SESSIONS.  In  England,  the 
Court  of  General  Quarter  Sessions  of  the 
Peace  held  in  every  county  once  in  every 
quarter  of  a  year.     Mozley  &  W.  Law  Diet. 

COUPONS.  Those  parts  of  a  commercial 
instrument  which  are  to  be  cut,  and  which 
are  evidence  of  something  connected  with 
the  contract  mentioned  in  the  instrument. 
They  are  generally  attached  to  bonds  or  cer- 
tificates of  loan,  where  the  interest  is  paya- 
ble at  particular  periods,  and,  when  the  in- 
terest is  paid,  they  are  cut  off  and  delivered 


to  the  payor.  In  England,  they  are  known 
as  warrants  or  dividend  warrants,  and  the 
securities  to  which  they  belong,  debentures ; 
13  C.  B.  372.  In  the  United  States  they 
have  been  decided  to  be  negotiable  instru- 
ments, if  payable  to  bearer  or  order,  upon 
which  suit  may  be  brought  though  detached 
from  the  bond;  Town  of  Cicero  v.  Clifford, 
53  Ind.  191 ;  Beaver  County  v.  Armstrong, 
44  Pa.  63 ;  Haven  v.  Depot  Co.,  109  Mass.  88 ; 
Antoni  v.  Wright,  22  Gratt.  (Va.)  833;  Lex- 
ington v.  Butler,  14  Wall.  (U.  S.)  282,  20  L. 
Ed.  809 ;  Thompson  v.  Perrine,  106  U.  S.  589, 
1  Sup.  Ct.  564,  27  L.  Ed.  298;  Jones,  R.  R. 
Sec.  §  320;  Myers  v.  R.  Co.,  43  Me.  232; 
Home  v.  State,  82  N.  C.  3S2;  Walker  v. 
State,  12  S.  C.  200.  Otherwise,  in  Clarke  v. 
Janesville,  1  Biss.  105,  Fed.  Cas.  No.  2,854, 
if  the  bond  to  which  the  coupons  were  at- 
tached was  not  negotiable;  see  Myers  v.  R. 
Co.,  43  Me.  232 ;  and  otherwise  if  not  payable 
to  bearer  or  order;  Evertson  v.  Bank,  66  N. 
Y.  14,  23  Am.  Rep.  9;  see  Crosby  v.  R.  Co., 
26  Conn.  121.  They  are  distinct  instruments 
from  the  bonds,  and  can  be  added  to  the 
bond  thereof  to  make  up  a  jurisdictional 
amount;  Edwards  v.  Bates  County,  163  U. 
S.  269,  16  Sup.  Ct  967,  41  L.  Ed.  155.  Suits 
on  a  bond  and  on  coupons  cut  therefrom 
are  different  causes  of  action  ;  Presidio  Coun- 
ty, Tex.,  v.  Bond  &  Stock  Co.,  212  U.  S.  58, 
29  Sup.  Ct.  237,  53  L.  Ed.  402. 

In  England  the  question  has  not  been  di- 
rectly decided,  but  it  has  been  held  that 
they  are  not  promissory  notes,  and  therefore 
do  not  require  a  stamp ;  13  C.  B.  373.  Divi- 
dend warrants  of  the  Bank  of  England  made 
payable  to  a  particular  person,  but  not  con- 
taining words  of  transfer,  were  held  not  to 
be  negotiable,  notwithstanding  they  had 
been  so  by  custom  for  sixty  years ;  9  Q.  B. 
396.  A  purchaser  of  overdue  coupons  takes 
only  the  title  of  his  vendor ;  Arents  v.  Com., 
18  Gratt.  (Va.)  750;  Gilbough  v.  R.  Co.,  1 
Hughes  410,  Fed.  Cas.  No.  5,419.  Negotiable 
coupons  were  held  entitled  to  days  of  grace; 
Evertson  v.  Bank,  66  N.  Y.  14,  23  Am.  Rep. 
9;  Jones,  R.  R.  Sec.  §  326;  contra,  Arents  v. 
Com.,  18  Gratt.  (Va.)  773;  2  Dan.  Neg.  Instr., 
3d  ed.  §  1490  a. 

Interest  on  coupons  may  be  recovered  in 
a  suit  on  the  coupons ;  Beaver  County  v. 
Armstrong,  44  Pa.  75;  Hollingsworth  v.  De- 
troit, 3  McLean  472,  Fed.  Cas.  No.  6,613; 
Genoa  v.  Woodruff,  92  U.  S.  502,  23  L.  Ed. 
586;  Cromwell  v.  Sac  County,  96  U.  S.  51, 
24  L.  Ed.  681;  Ashuelot  R.  Co.  v.  Elliot,  57 
N.  H.  397 ;  Burroughs  v.  Richmond  County 
Com'rs,  65  N.  C.  234 ;  Connecticut  Mut.  Life 
Ins.  Co.  v.  R.  Co.,  41  Barb.  (N.  Y.)  9.  The 
rate  of  interest  provided  for  in  the  bond  con- 
tinues on  the  coupon  till  it  is  merged  in 
judgment;  Cromwell  v.  Sac  County,  96  U. 
S.  51,  24  L.  Ed.  6S1;  McLane  v.  Abrams,  2 
Nev.  199 ;  Marietta  Iron  Works  v.  Lotti- 
mer,  25  Ohio  St.  621;  contra,  Brewster  v. 
Wakefield,  22  How.   (U.  S.)    118,  16  L.   Ed. 


COUPONS 


695 


COURT 


301;  Com.  of  Virginia  r.  State,  32  Md.  501; 
Pearce  v.  Hennessy,  10  R.  I.  228.  See  Jones, 
R.  R.  See.  §  336.  A  suit  on  the  coupon  LB 
not  barred  by  the  statute  of  limitations  un- 
less a  suit  on  Hit:  bond  would  be  barred; 
Lexington    v.    Butler,   14   Wall.   (U.   SO   282, 

2U   L.    Ed.  809|    otherwise,    when   the  COUPOUB 

have  passed  into  the  bands  of  the  party 
who  does  not  hold  the  bonds;  Clark  v.  Iowa 
City,  L'O  Wall.  (  D.  S.)  588,  22  L.  Bd.  1-7. 
As  to  practice  in  actions  on  coupons,  see 
Kenosha  v.  Lamson,  0  Wall.  (U.  S.)  477,  10 
L.  Ed.   725. 

COUR  DE  CASSATION.  In  French  Law. 
See  Courts  of  France. 

COURSE.  The  direction  of  a  line  with 
reference  to  a   meridian. 

Where  there  are  no  monuments,  the  land 
Is  usually  described  by  courses  and  distances 
and  those  mentioned  in  the  patent  or  deed 
will  fix  the  boundaries.  But  when  the  lines 
are  actually  marked,  they  must  be  adhered 
to  though  they  vary  from  the  course  men- 
tioned in  the  deeds.     See  Boundary. 

COURSE  OF  BUSINESS.  What  is  usual- 
ly done  in  the  management  of  trade  or  busi- 
ness. A  statute  exempting  from  distress 
property  deposited  with  a  tavern-keeper  "in 
the  usual  course  of  business,"  only  includes 
property  deposited  by  a  guest  for  safekeep- 
ing; Harris  v.  Boggs,  5  Blackf.  (Ind.)  480. 
Carriages  used  for  carrying  the  band  and 
performers  of  a  circus  in  a  street  parade, 
are  not  carriages  "used  solely  for  the  con- 
veyance of  any  goods  or  burdens  in  the 
course  of  trade;"  L.  R.  0  Exch.  25. 

Men  are  presumed  to  act  for  their  own 
interest,  and  to  pursue  the  way  usually 
adopted  by  ruen  generally:  hence  it  is  pre- 
sumed in  law  that  men  in  their  actions  will 
pursue  the  usual  course  of  trade. 

COURSE  OF  THE  VOYAGE.  By  this 
term  is  understood  the  regular  and  custom- 
ary track,  if  such  there  be,  which  a  ship 
takes  in  going  from  one  port  to  another, 
and  the  shortest  way.  Marsh.  Ins.  185; 
Phill.  Ins.  0S1. 

COURT  (Ft.  cour,  Dutch,  lcocrt,  a  yard). 
A  body  in  the  government  to  which  the  ad- 
ministration of  justice  is  delegated. 

The  presence  of  a  sufficient  number  of 
the  members  of  such  a  body  regularly  con- 
vened in  an  authorized  place  at  an  appoint- 
ed time,  engaged  in  the  full  and  regular  per- 
formance of  its  functions.  Wightman  v. 
Karsner,  20  Ala.  446;  P.rumley  v.  state.  20 
Ark.  77. 

The  place  where  justice  is  judicially  ad- 
ministered. Co.  Litt.  58  a;  3  Bla.  Com.  23, 
25.     See  Hobart  v.  Hobaft,  45  la.  501. 

The  judge  or  judges  themselves,  when  duly 
convened.     See  Judge. 

The  term  Is  used  In  all  the  above  senses,  though 
but  Infrequently  In  the  third  sense  given.  The  ap- 
plication of  the  term— which  orlgnally  denoted  the 
place    of    assembling— to    denote     the    assemblage, 


strikingly  resembles  the  similar  application  of  the 
LaUu  term  u;  ia  (if,  Indi     :.  it  be  not  a  mere  trans- 
lation),  and   is   readily  explained   by    the  tact 
the   earlier   courts   were  uiblages,   in   the 

court-yard    of    the    baron    or    of    the    king    himself, 
of    those    who    were    qualified    and    whose    duty    it 
was  so  to  appear  at  stated  limes  or  upon  sun. 
Traces  of  tin.-   u  age  OH  .  "n  of  cour' 

remain  in  the  courts  bare  courts  for 

the    trial    of    imi"  i    the 

United   States,   aud   in   the  control  by  the 

parliament  of   England   and   the  legislatures  of   the 
various  states  of  the  United  Bl  the  organ- 

ization of  courts  oi  .  constituted  in  modern 

times.     Indeed,   the   English  parliament   is   still   the 
lliyh   Court    of   Parliament,    aud   in    Ma 

Ited  legislative  bodies  are  entitled,  as  they 
(and  the  body  to  which  they  mcoeeded)  have  been 
from  time  Immemorial,  the  (Jenral  Court. 

In  England,  however,  and  in  those  states  of  the 
Uuiud  States  which  existed  as  colonies  prior  to  the 
revolution,  most  of  these  Judicial  functions  were 
early  transferred  to  bodies  of  a  compacter  organiza- 
tion, whose  sole  function  was  the  public  ail 
tration  of  Justice.  The  power  of  impeachment  of 
various  high  officers,  however,  is  still  retained  by 
the  legislative  bodies  both  In  England  and  the 
United  States,  and  Is,  perhaps,  the  only  Judicial 
function  which  has  ever  been  exercised  by  the  leg- 
islative bodies  In  the  newer  states  of  the  I 
States.  These  more  compact  bodies  are  the  courts, 
as  the  term  is  used  In  its  modern  acceptance. 

The  one  common  and  essential  feature  In  all 
courts  13  a  judge  or  judges— so  essential.  Indeed, 
that  they  are  even  called  the  court,  as  distinguish..! 
from  the  accessory  and  subordinate  officers;  Mich- 
igan Cent.  R.  Co.  v.  R.  Co.,  3  Ind.  239;  McClure  v. 
McClurg,  53  Mo.  173;  see  Gold  v.  R  Co.,  19  \ 
Courts  of  record  are  also  provided  with  a  recording 
officer,  variously  known  as  clerk,  protbonotary 
ister,  etc.:  while  In  all  courts  there  are  counsellors, 
attorneys,  or  similar  officers  recognized  as  peculiar- 
ly suitable  persons  to  represent  the  parties  actually 
concerned  in  the  causes,  who  are  considered  as  offi- 
cers of  the  court  and  assistants  of  the  judges,  to- 
gether with  a  variety  of  ministerial  officers,  such  as 
sheriffs,  constables,  bailiffs,  tipstaves,  criers,  etc. 
For  a  consideration  of  the  functions  of  the  various 
members  of  a  court,  see  the  various  appropriate 
titles,  as  Jury,  Shehiff,  etc. 

Courts  are  said  to  belong  to  one  or  more 
of  the  following  classes,  according  to  the 
nature  and  extent  of  their  Jurisdiction,  their 
forms  of  proceeding,  or  the  principles  upon 
which  they  administer  Justice,   viz.: 

Admiralty.      See   ADMIRALTY. 

Appellate,  which  take  cognizance  of  causes 
removed  from  another  court  by  appeal  or 
writ  of  error.  See  Appeal  anh  Error;  Bill 
of  Exceptions  ;   Division   of  Opinion. 

Civil,  which  redress  private  wrongs.  Sec 
Jurisdiction. 

Criminal,     which    redress    public    w: 
that  is,  crimes  or  misdemeanors. 

Ecclesiastical.    See  Ecci  i  siastical  I ' 

Of   equity,    which   administer   justice   ac- 
cording  to   the    principles    of   equity. 
Equity;  Doubt  of  Eqi  rrr;  Court  of  Chan- 
a  by. 

Of  general  Jurisdiction,  which  have  cogni- 
zance of  and  may  determine  causes  various 
in  their  nature. 

Inferior,  which  are  subordinate  to  other 
courts.  Nugent  v.  State.  18  Ala.  .".21.  Also, 
those  of  a  very  limited  jurisdiction. 

Of  law,  which  administer  justice  accord- 
ing to  the  principles  of  the  common  law. 


COURT 


696 


COURT  OF  APPEALS 


Of  limited  or  special  jurisdiction,  which 
can  take  cognizance  of  a  few  specified  mat- 
ters only. 

Local,  which  have  jurisdiction  of  causes 
occurring  in  certain  places  only,  usually  the 
limits  of  a  town  or  borough,  or,  in  England, 
of  a  barony. 

Martial.     See  Court-Martial. 

Not  of  recura.    See  Court  of  Record. 

Of  original  jurisdiction,  which  have  juris- 
diction of  causes  in  the  first  instance.  See 
Jurisdiction. 

Of  record.    See  Court  of  Record. 

Superior.  In  England  the  High  Court  of 
justice  is  spoken  of  a  superior  court  of  rec- 
ord; in  the  United  States  the  term  superior 
courts  has  come  to  be  applied  to  courts  of 
intermediate  jurisdiction  between  the  infe- 
rior and  supreme  courts ;  also,  those  of  con- 
trolling, as  distinguished  from  those  of  sub- 
ordinate, jurisdiction.  As  to  superior  and 
inferior  courts,  see  34  Amer.  L.  Rev.  71. 

Supreme,  which  possess  the  highest  and 
controlling  jurisdiction ;  also,  in  some  states, 
a  court  of  higher  jurisdiction  than  the  su- 
perior courts,  though  not  the  court  of  final 
resort. 

A  court  cannot  pass  upon  the  validity  of 
its  own  organization ;  State  v.  Hall,  142  N.  C. 
710,  55  S.  E.  806;  but  it  would  at  least  be 
a  de  facto  court  and  its  authority  could  not 
be  attacked  collaterally;  In  re  Manning,  139 
U.  S.  504,  11  Sup.  Ct.  624,  35  L.  Ed.  264. 
See  De  Facto. 

As  to  holding  court  with  closed  doors,  see 
Open  Court. 

See  the  various  titles  following. 

Courts  of  the  United  States  are  treated 
under  United  States  Courts;  Courts  of 
Great  Britain,  Ireland,  Scotland,  and  France, 
under  Courts  of  England,  Ireland,  Scot- 
land, and  France,  respectively. 

COURT  OF  ADMIRALTY.  See  Admiral- 
ty ;  United  States  Courts. 

COURT      OF      ANCIENT      DEMESNE.     A 

court  of  peculiar  constitution,  held  by  a 
bailiff  appointed  by  the  king,  in  which  alone 
the  tenants  of  the  king's  demesne  could  be 
impleaded.  2  Burr.  1046;  1  Spence,  Eq.  Jur. 
100;  2  Bla.  Com.  99;  1  Report  Eng.  Real 
Prop.  Comm.  28;  1  Steph.  Com.  224;  1  Poll. 
&  Maitl.  367. 

COURT  OF  APPEAL.  In  England,  one 
of  the  two  sections  of  the  Supreme  Court  of 
Judicature.     See  Courts  of  England. 

COURT  OF  APPEALS.  An  appellate  tri- 
bunal which,  in  Kentucky,  Maryland,  and 
New  York,  is  the  court  of  last  resort.  In 
New  Jersey,  it  is  known  as  the  Court  of  Er- 
rors and  Appeals ;  in  Virginia  and  West  Vir- 
ginia, the  Supreme  Court  of  Appeals;  in 
Connecticut,  the  Supreme  Court  of  Errors ; 
in  Massachusetts  and  Maine,  the  Supreme 
Judicial  Court;  in  the  other  states,  and  in 


the  federal  courts,  the  Supreme  Court.  In 
Texas  there  is  a  court  of  Civil  Appeals,  and 
in  Illinois,  Indiana,  Missouri,  Pennsylvania, 
and  other  states,  and  the  United  States, 
there  are  appellate  courts  inferior  to  the 
highest  court    of   appeals. 

COURT  OF  ARCHDEACON.  The  most  in- 
ferior of  the  English  ecclesiastical  courts, 
from  which  an  appeal  lay  to  the  Consistory 
Court.  The  archdeacon  formerly  held  it  as 
a  deputy  of  the  bishop.  Later  it  had  a  cus- 
tomary jurisdiction,  and  the  bishops  adopted 
the  plan  of  exercising  their  jurisdiction 
through  officials;    1  Holdsw.  Hist.  E.  L.  3G9. 

COURT  OF  THE  ARCHES.  The  usual 
name  for  the  Court  of  the  "Official  Principal" 
of  the  Archbishop  of  Canterbury.  It  was  a 
court  of  appeal  from  all  the  diocesan  courts 
and  also  a  court  of  first  instance  in  all  ec- 
clesiastical causes. 

The  most  ancient  consistory  court  belonging  to 
the  archbishop  of  Canterbury  for  the  trial  of  spir- 
itual causes,  the  judge  of  which  is  called  the  dean 
of  the  arches,  because  he  anciently  held  his  court  in 
the  church  of  St.  Mary  le  Bow  (Sancta  Maria  de 
ar cuius, — literally,  "St.  Mary  of  the  arches"),  so 
named  from  the  style  of  its  steeple  which  is  raised 
upon  pillars  built  archwise,  like  so  many  bent 
bowes.  Termes  de  la  Ley.  It  is  now  held,  as  are 
also  the  other  spiritual  courts,  In  the  hall  belonging 
to  the  College  of  Civilians,  commonly  called  Doctor's 
Commons.     It  is  still  a  part  of  the  English  system. 

Its  proper  jurisdiction  is  only  over  the 
thirteen  peculiar  parishes  of  London,  which 
were  exempt  from  the  jurisdiction  of  the 
bishop  of  London ;  but,  the  office  of  dean  of 
the  arches  having  been  for  a  long  time  unit- 
ed with  that  of  the  archbishop's  "Official 
Principal,"  the  judge  of  the  arches,  in  right 
of  such  added  office,  receives  and  determines 
appeals  from  the  sentences  of  all  inferior 
ecclesiastical  courts  within  the  province.  3 
Bla.  Com.  64;  3  Steph.  Com.  306;  Whart. 
Law  Diet.  Arches  Court.  Many  suits  are  al- 
so brought  before  him  as  original  judge,  the 
cognizance  of  which  properly  belongs  to  in- 
ferior jurisdictions  within  the  province,  but 
in  respect  of  which  the  inferior  judge  has 
waived  his  jurisdiction  under  a  certain  form 
of  proceeding  known  in  the  common  law  as 
letters  of  request.  3  Steph.  Com.  306;  2 
Chitty,  Gen.  Pr.  496;   2  Add.  Eccl.  406. 

From  the  court  of  arches  an  appeal  for- 
merly lay  to  the  pope,  and  afterwards,  by 
statute  25  Hen.  VIII.  c.  19,  to  the  king  in 
chancery  (i.  e.,  to  the  Court  of  Delegates, 
q.  v.),  as  supreme  head  of  the  English  church, 
but  now,  by  2  &  3  Will.  IV.  c.  92,  and  3  &  4 
Will.  IV.  c.  41,  to  the  Judicial  Committee  of 
the  Privy  Council. 

A  suit  is  commenced  in  the  ecclesiastical 
court  by  citing  the  defendant  to  appear,  and 
exhibiting  a  libel  containing  the  complaint 
against  him,  to  which  he  answers.  Proofs 
are  then  adduced,  and  the  judge  pronounces 
a  decree  upon  hearing  the  arguments  of  ad- 
vocates, which  is  then  carried  into  effect 


COURT  OF  THE  ARCHES 


697     COURTS  Ol  AND  NISI  PRIUS 


The  corresponding  court  of  the  archbishop 
of  York   was  the  Chancery  Court 
The  Public  Worship  Regulation  Act  (37  & 

38  Vict.)  provides  for  the  appointment  by 
the  archbishops  of  Canterbury  and  York  of 
a  single  judge  to  hold  the  position  of  the  Of- 
ficial Principal  of  the  Court  of  the  Arches 
and  the  Chancery  Court,  and  Master  of  the 
Faculties  to  the  Archbishop  of  Canterbury. 
He  must  be  either  a  barrister  of  10  years 
standing  or  a  judge  of  one  of  the  superior 
courts. 

COURT  OF  ASSISTANTS.  A  court  in 
Massachusetts  organized  in  1G30,  consisting 
of  the  governor,  deputy  governor  and  assist- 
ants. It  exercised  the  whole  power  both 
legislative  and  judicial  of  the  colony  and  an 
extensive  chancery  jurisdiction  as  well;  S. 
D.  YVilson  in  IS  Am.  L.  Rev.  226. 

COURTS  OF  ASSIZE  AND  NISI  PRIUS. 
Courts  composed  of  two  or  more  commis- 
sioners, called  judges  of  assize  (or  of  assize 
and  nisi  prius),  who  are  twice  in  every  year 
sent  by  special  commission  on  circuits  all 
round  the  kingdom,  to  try,  by  a  jury  of  the 
respective  counties,  the  truth  of  such  matters 
of  fact  as  are  then  under  dispute  in  the 
courts  of  Westminster  Hall ;  there  being, 
however,  as  to  London  and  Middlesex,  this 
exception,  that,  instead  of  their  being  com- 
prised within  auy  circuit,  courts  of  nisi  prius 
are  held  there  for  the  same  purpose,  in  and 
after  every  term,  at  what  are  called  the  Lon- 
don and  Westminster  sittiugs. 

These  judges  of  assize  came  into  use  in  the  room 
of  the  ancient  justices  in  eyre  (justiciarii  in  itin- 
erc),  who  were  regularly  established,  if  not  first 
appointed,  by  the  Parliament  of  Northampton,  A.  D. 
1176  (the  first  of  these  of  whom  we  have  any  record, 
were  appointed  in  1170),  with  a  delegated  power  from 
the  king's  great  court  or  aula  reyis,  being  looked 
upon  as  members  thereof;  though  the  present  jus- 
tices of  assize  and  nisi  prius  are  more  immediately 
derived  from  the  stat.  Westm.  2,  13  Edw.  I.  c.  30, 
and  consist  principally  of  the  judges  of  the  superior 
courts  of  common  law,  being  assigned  by  that  stat- 
ute out  of  the  king's  sworn  justices,  associating  to 
themselves  one  or  two  discreet  knights  of  each  coun- 
ty. By  stat.  27  Edw.  I.  c.  4  (explained  by  12  Edw. 
II.  c.  3),  assizes  and  inquests  are  allowed  to  be 
taken  before  any  one  justice  of  the  court  in  which 
the  plea  is  brought,  associating  with  him  one 
knight  or  other  approved  man  of  the  couuty:  by 
stat.  14  Edw.  III.  c.  16,  inquests  of  nisi  prius  may 
be  taken  before  any  justice  of  either  bench  (though 
the  plea  be  not  depending  in  his  own  court),  or  be- 
fore the  chief  baron  of  the  exchequer,  if  he  be  a 
man  of  the  law,  or,  otherwise,  before  the  justices 
of  assize,  so  that  one  of  such  justices  be  a  judge 
of  the  king's  bench  or  common  pleas,  or  the  king's 
sergeant  sworn;  and,  finally,  by  2  ii  3  Vict.  c.  22, 
all  justices  of  assize  may,  on  their  respective  cir- 
cuits, try  causes  pending  in  the  court  of  exchequer, 
without  issuing  (as  it  had  till  then  been  considered 
necessary  to  do)  a  separate  commission  from  the 
exchequer  for  that  purpose.  3  Steph.  Com. 
Bla.  Com.  57,  5S. 

There  are  eight  circuits  (formerly  seven), 
viz.:  Northern,  Northeastern,  Midland,  South- 
eastern, Oxford,  Western,  North  Wales  and 
Chester  and  South  Wales.  At  least  one 
judge  of  the  High  Court  goes  around  each  cir- 
cuit three  times  a  year — in  the  winter,  sum- 


mer and  autumn.     Two  judges  attend  at  the 
larger    towns   tw  I  ar.      At    Liverpool, 

Manchester  and  Leeds  four  assizes  are  held! 
in  each  year,  two  of  them  by  two  judges  and 
two  by  one  judge.  The  Judges  are  under 
three  commissions — oyer  and  terminer,  gaol 
delivery  and  assize.  The 
them  inter  alia  to  try  civil  actions;  -  Odger, 
Com.  Law.  985. 

Where  courts  of  this  kind  exist  in  the 
United  States,  they  are  instituted  by  statu- 
tory provision.  Dawson  v.  Ryan,  4  W.  &  S. 
(Pa.)  404.  See  Oyer  and  Terminer ;  Gaol 
Delivery;  Coubts  of  Oyer  and  i 
and  General  Gaol  Delivery;  Nisi  Pbius; 
:  1  ssi  o.n  of  tim 

COURT  OF  ATTACHMENTS.  The  lowest 
of  the  three  courts  held  in  the  forests.  It 
has  fallen  into  total  disuse.  It  was  held  be- 
fore the  verderers  of  the  forest  once  in  every 
forty  days,  to  view  the  attachments  by  the 
foresters  for  offences  against  the  vert  and 
the  venison.  It  had  cognizance  only  of  small 
trespasses.  Larger  ones  were  enrolled  and 
heard  by  the  Justices  in  Eyre;  1  Holdsw. 
Hist.  E.  L.  343.  See  Courts  of  the  Forest; 
Rawle,  Exmoor  For.  51. 

COURT  OF  AUDIENCE.  The  Archbishop 
of  Canterbury  possessed  a  jurisdiction  con- 
current with  that  of  the  Court  of  the  Arches, 
which  he  exercised  in  the  Court  of  Audience, 
later  held  by  a  judge.  It  does  not  appear 
to  have  been  revived  after  the  Restoration. 
1  Holdsw.  Hist.  E.  L.  371.  The  Archbishop 
of  York  held  a  like  Court  of  Audience. 

COURT  OF  AUGMENTATION.  A  curt 
established  by  27  Hen.  VIII.  c.  27,  for  man- 
aging the  revenues  and  possessions  of  all 
monasteries  whose  income  was  under  £200  a 
year  (which  by  an  act  of  parliament  of  the 
same  session  had  been  given  to  the  king), 
and  for  determining  suits  relating  thereto. 

It  was  called  "The  Court  of  the  Aug- 
mentations of  the  Revenues  of  the  King's 
Crown"  (from  the  augmentation  of  the  rev- 
enues of  the  crown  derived  from  the  suppres- 
sion of  the  monasteries),  and  was  a  court  of 
record,  with  one  great  seal  and  one  privy 
seal, — the  officers  being  a  chancellor,  who 
had  the  great  seal,  a  treasurer,  a  king's  at- 
torney and  solicitor,  ten  auditors,  seventeen 
receivers,  with  clerk,  usher,  etc. 

All  dissolved  monasteries  under  the  above 
value,  with  some  exceptions,  were  in  survey 
of  the  court,  the  chancellor  of  which  was  di- 
rected to  make  a  yearly  report  of  their  rev- 
enues to  the  king.  The  court  was  disc 
in  the  reign  of  queen  Mary,  but  the  Ollice  of 
Augmentation  remained  Long  after:  and 
the  records  of  the  court  are  now  at  the  Pub- 
lic Record  Office     CowelL 

COURT  OF  BANKRUPTCY.  A  court  of 
record,  in  England,  with  jurisdiction  in  bank- 
rupt, y,  primary  and  appellate,  which  is  de- 
clared a  court  of  law  and  equity   for  that 


COURT  OF  BANKRUPTCY 


698 


COURT  OF  CHANCERY 


purpose.  The  Bankrupt  Law  Consolidation 
Act,  1849. 

By  the  judicature  acts,  1S73  and  1875  (q. 
v.)  the  court  of  bankruptcy  was  consolidated 
into  the  supreme  court  of  judicature. 

COURT  BARON.  A  domestic  court,  inci- 
dent to  every  manor,  held  by  the  steward 
within  the  manor,  for  redressing  misdemean- 
ors and  nuisances  therein,  and  for  settling 
disputes  among  the  tenants  relating  to  prop- 
erty. It  is  not  a  court  of  record.  1  Poll.  & 
Maitl.  Hist  E.  L.  580. 

Coke  (1st  Inst.  58  o)  speaks  of  the  Court 
Baron  as  of  two  natures ;  the  first,  by  the 
common  law,  called  a  court  baron,  a  freehold- 
ers' court  where  they  are  the  judges ;  the 
second,  a  customary  court,  in  which  the  lord 
or  his  steward  is  the  judge.  Blackstone  (3 
Com.  33)  says  that,  though  in  their  nature 
distinct,  they  are  frequently  confounded  to- 
gether. Later  writers  doubt  if  there  were 
two  courts ;    1  Poll.  &  Maitl.  Hist.  E.  L.  580. 

Their  jurisdiction  was  practically  abolished  by 
the  County  Courts  Act,  30  and  31  Vict.  c.  142,  s.  28; 
3  Steph.  Com.  279.  In  the  state  of  New  York  such 
courts  were  held  while  the  state  was  a  province. 
See  charters  in  Bolton's  Hist,  of  New  Chester.  A 
deed  of  Wm.  Penn  to  Letitia  Penn  for  a  manor  in 
Pennsylvania  granted  the  privilege  of  holding  court 
baron;  Myers,  Immigration  of  Quakers  127.  They 
existed  in  Maryland ;  Hall,  The  Lords  Baltimore, 
etc.  The  court  derived  its  name  from  the  fact  that 
it  was  the  court  of  the  baron  or  lord  of  the  manor. 
3  Bla.  Com.  33,  n.;  see  Fleta,  lib.  2,  c.  53;  though 
it  is  explained  by  some  as  being  the  court  of  the 
freeholders,  who  were  in  some  instances  called 
barons.     Co.  Litt.  58  a. 

The  lord's  steward  usually  presided.  From 
the  13th  century  he  was  a  lawyer.  All  kinds 
of  personal  actions  (where  the  cause  of  ac- 
tion did  not  exceed  40  shillings  in  value) 
were  tried  there ;  contracts,  trespass,  libel, 
slander,  assault,  etc.  Both  the  common  law 
and  chancery  courts  interfered  to  protect 
suitors  if  injustice  were  done.  The  jurisdic- 
tion of  the  customary  court  declined  and  all 
that  it  was  used  for  was  copyhold  convey- 
ancing business;    1  Poll.  &  Maitl.  578. 

COURT  OF  CHANCERY,  or  CHANCERY. 

A  court  formerly  existing  in  England  and 
still  existing  in  several  of  the  United  States, 
which  possesses  an  extensive  equity  jurisdic- 
tion. 

The  name  is  said  by  some  to  be  derived  from  that 
of  the  chief  judge,  who  is  called  a  chancellor;  oth- 
ers derive  both  names  directly  from  the  cancelli 
(bars)  which  in  this  court  anciently  separated  the 
press  of  people  from  the  officers.  See  3  Bla.  Com. 
46,  n.;    Story,  Eq.  Jur.  40;    Cancellarius. 

In  American  Law.  A  court  of  general  eq- 
uity jurisdiction. 

The  terms  equity  and  chancery,  court  of  equity 
and  court  of  chancery,  are  constantly  used  as  syn- 
onymous in  the  United  States.  It  is  presumed  that 
this  custom  arises  from  the  circumstance  that  the 
equity  jurisdiction  which  is  exercised  by  the  courts 
of  the  various  states  is  assimilated  to  that  possessed 
by  the  English  courts  of  chancery.  Indeed,  in  some 
of  the  states  it  is  made  identical  therewith  by  stat- 
ute, so  far  as  conformable  to  our  institutions. 


Separate  courts  of  chancery  or  equity  ex- 
ist in  a  few  of  the  states;  in  others,  the 
courts  of  law  sit  also  as  courts  of  equity ; 
in  others,  equitable  relief  is  administered 
under  the  forms  of  the  common  law ;  and 
in  others,  the  distinction  between  law  and 
equity  has  been  formally  abolished  or  never 
existed.  The  federal  courts  exercise  an  equi- 
ty jurisdiction  as  understood  in  the  English 
courts  at  the  time  of  the  Revolution ;  Miller 
Const.  318;  independent  of  local  state  law;* 
id.;  Gordon  v.  Hobart,  2  Sumn.  401,  Fed. 
Cas.  No.  5,609 ;  and  the  remedies  are  not 
according  to  state  practice  but  as  distinguish- 
ed and  defined  in  that  country  from  which  we 
derive  our  knowledge  of  those  principles ; 
Robinson  v.  Campbell,  3  Wheat.  (U.  S.)  212, 
4  L.  Ed.  372;  whether  the  state  courts  in 
the  district  are  courts  of  equity  or  not ;  Lor- 
mau  v.  Clarke,  2  McLean,  568,  Fed.  Cas.  No. 
8,516;  Gaines  v.  Relf,  15  Pet.  (U.  S.)  9,  10 
L.  Ed.  642 ;  Bennett  v.  Butterworth,  11  How. 
(U.  S.)  6G9,  13  L.  Ed.  859. 

In  English  Law.  Formerly  the  highest 
court  of  judicature  next  to  parliament.  Pri- 
or to  the  judicature  acts  it  was  the  superior 
court  of  chancery,  called  distinctively  "The 
High  Court  of  Chancery,"  and  consisted  of 
six  separate  tribunals,  viz.:  the  court  of  the 
lord  high  chancellor  of  Great  Britain ;  the 
court  of  the  master  of  the  rolls,  or  keeper  of 
the  records  in  chancery ;  the  court  of  appeal 
in  chancery,  the  three  separate  courts  of  the 
vice-chancellors. 

The  jurisdiction  of  this  court  was  four- 
fold. 

The  common-law  or  ordinary  jurisdiction. 
By  virtue  of  this  the  lord-chancellor  was  a 
privy  councillor  and  prolocutor  of  the  house 
of  lords.  The  writs  for  a  new  parliament  is- 
sued from  this  department.  The  Petty  Bag 
Office  was  in  this  jurisdiction.  It  was  a  com- 
mon-law court  of  record,  in  which  pleas  of 
scire  facias  to  repeal  letters-patent  were  ex- 
hibited, and  many  other  matters  were  deter- 
mined, and  whence  all  original  writs  issued. 
See  11  &  12  Vict.  c.  94;    12  &  13  Vict.  c.  109. 

The  statutory  jurisdiction  included  the 
power  which  the  lord-chancellor  exercised 
under  the  habeas  corpus  act,  and  by  which 
he  inquired  into  charitable  uses,  but  did  not 
include  the  equitable  jurisdiction. 

The  specially  delegated  jurisdiction  includ- 
ed the  exclusive  authority  which  the  lord- 
chancellor  and  lords  justices  of  appeal  had 
over  the  persons  and  property  of  idiots  and 
lunatics. 

The  equity  or  extraordinary  jurisdiction 
was  either  assistant  or  auxiliary  to  the  com- 
mon law,  including  discovery  for  the  promo- 
tion of  substantial  justice  at  the  common 
law,  preservation  of  testimony  of  persons 
not  litigants  relating  to  suits  or  questions  at 
law,  removal  of  improper  impediments  and 
prevention  of  unconscientious  defences  at 
common  law,  giving  effect  to  and  relieving 


COURT  OF  CHANCERY 


699 


COURT  OF  CHIVALRY 


from  the  consequences  of  common-law  judg- 
ments; concurrent  with  the  common  law,  in- 
dueling  the  remedial  correction  of  fraud,  the 
prevention  of  fraud  by  injunction,  accident, 
mistake,  account,  dower,  interpleader,  the  de- 
livery up  of  documents  and  specific  chattels, 
the  specific  performance  of  agreements;  or 
exclusive,  relating  to  trusts,  infancy,  the 
equitable  rights  of  wives,  legal  and  equitable 
mortgages,  the  assignment  of  choses  in  ac- 
tion, partition,  the  appointment  of  receivers, 
charities,  or  public  trusts.     Whart.  Law  Diet 

By  the  Judicature  Acts  (IST.'J  and  1875)  this 
court  was  merged  in  the  High  Court  of  Jus- 
tice.    See  Coubts  of  England. 

The  inferior  courts  of  chancery  are  the 
courts  of  the  Palatine  Counties  (Lancaster 
and  Durham),  the  courts  of  the  Two  Univer- 
sities, the  lord-mayor's  courts  in  the  city  of 
London,  and  the  court  of  chancery  in  the 
Isle  of  Man.  See  IS  &  19  Vict.  c.  48,  and  the 
titles  of  these  various  courts.  See  Story, 
Eq.  Jur. ;  Dan.  Ch.  l'r. ;  Spence,  Eq.  Jur. ;  1 
Iloldsw.  Hist.  E.  L.  194;  Spence,  2  Sel.  Es- 
says in  Anglo-Amer.  L.  H.  219;  Coubts  of 
Equity;  Equity;  Cancellabius. 

COURT  OF  THE  CHIEF  JUSTICE  IN 
EYRE.  The  highest  of  the  courts  of  the  for- 
est, held  every  three  years,  by  the  chief  jus- 
tice, to  inquire  of  purprestures  or  encroach- 
ments, assarts,  or  cultivation  of  forest  land, 
claims  to  franchises,  parks,  warrens,  and 
vineyards  in  the  forest,  as  well  as  claims 
of  the  hundred,  claims  to  the  goods  of  fel- 
ons found  in  the  forest,  and  any  other  civil 
questions  that  might  arise  within  the  forest 
limits.  But  it  had  no  criminal  jurisdiction, 
except  of  offences  against  the  forest  laws.  In 
the  exercise  of  this,  he  passed  sentences  up- 
on offenders  convicted  by  the  verderers  in 
Swanimote  (see  Coubt  of  S wan j  mote)  and 
performed  all  the  duties  of  a  justice  in  eyre 
(g.  v.).  It  was  called  also  the  court  of  jus- 
tice seat.  Inderwick,  King's  Peace.  See  Fob- 
est  Laws;  Coubts  of  the  Forest.  Since 
the  Restoration  the  forest  laws  have  fallen 
into  disuse.    The  office  was  abolished  in  1S17. 

COURT  OF  CHIVALRY.  An  ancient  mili- 
tary court,  possessing  both  civil  and  crim- 
inal jurisdiction  touching  matters  of  arms 
and  deeds  of  war.  It  was  held  by  the  con- 
stable of  England  and  after  that  office  re- 
verted to  the  crown  in  the  time  of  Henry 
VIII.,  by  the  carl-marshal.  Davis,  Mil.  Law 
13.  It  had  cognizance,  by  statute  13  Ric.  II. 
c.  2,  "of  contracts  and  other  matters  touch- 
ing deeds  of  arms  and  war,  as  well  out  of 
the  realm  as  within  it."  This  Jurisdiction 
was  of  importance  while  the  English  kings 
held  territories  In  France. 

As  a  court  of  criminal  jurisdiction,  it  had 
jurisdiction  over  "pleas  of  life  and  member 
arising  in  matters  of  arms  and  deeds  of  war, 
as  well  out  of  the  realm  as  within  it"  It 
was  curia  militarist 


It  was  not  a  court  of  record  and  could 
neither  fine  nor  imprison;  7  Mod.  137 
(where  it  was  held  to  have  still  survived  with 
doubtful  and  trifling  jurisdiction).  It  is 
said  to  have  fallen  entirely   I  e;    3 

Bla.  Com.  68.  The  last  trial  before  a  Court 
of  Chivalry  was  that  of  Lord  Audcley,  in 
1497,  but  the  trial  of  the  Earl  of  Warwick  in 
1499  took  place  before  the  Court  of  the 
High  Steward.  Harcourt,  The  Steward  and 
Trial  of  Peers. 

COURTS  CHRISTIAN.  Ecclesiastical 
courts,  which  see. 

COURTS  OF  THE  CINQUE  PORTS. 
Courts  of  limited  local  Jurisdiction,  formerly 
held  before  the  mayor  and  jurats  (aldermen) 
of  the  Cinque  Ports.  From  the  earliest  times 
they  had  the  tight  to  hold  pleas  and  the  right 
to  wreck,  and  were  always  exempt  from  the 
jurisdiction  of  the  admiralty.  A  writ  of  er- 
ror lay  to  the  lord-warden  in  his  Court  of 
Shepway,  and  from  this  court  to  the  King's 
Bench. 

In  1856  when  the  general  civil  Jurisdio 
tion  of  the  lord-warden  was  abolished,  his 
admiralty  jurisdiction  was  retained.  An  ap- 
peal lies  to  the  lord-warden  in  admiralty 
causes  from  the  County  Courts  within  his 
jurisdiction.  Their  jurisdiction  was  not  af- 
fected by  the  Judicature  Act  of  1873,  The 
regular  sitting  place  was  in  the  aisle  of  St. 
James'  Church,  Dover,  but  the  Judge  now 
often  sits  at  the  Royal  Courts  of  Justice; 
See  1  Iloldsw.  Hist  E.  L.  303 :  3  Bla.  Com. 
79:  2  Steph.  Com.  499.  This  jurisdiction  is 
said  to  present  the  type  and  original  of  alt 
the  admiralty  and  maritime  courts;  1 
Iloldsw.  Hist.  E.  L  305. 

COURT  OF  CLAIMS.  See  United  States 
Coubts. 

COURT  OF  THE  CLERK  OF  THE  MAR- 
KET. A  tribunal  incident  to  the  market 
held  in  the  suburbs  of  the  king's  court.  The 
clericus  mercati  hospiHi  regis  was  the  in- 
cumbent of  an  honorable  office  pertinent  to 
the  ancient  custom  of  holding  such  markets. 
The  clerk  in  early  times  witnessed  • 
contracts:  later  he  adjudicated  on  prices  of 
corn,  bread,  and  wine  and  other  commodities 
as  fixed  by  the  justices  of  the  peace;  inquir- 
ed as  to  the  correctness  of  weights  and  meas- 
ures in  every  city,  town,  or  borough,  subject 
to  appeal  to  the  lord  high  steward,  who 
could  fine  him  for  extortion  and  send  him  to 
the  tower  for  a  third  offence.  The  clerk  also 
measured  land  in  case  of  dispute,  and  he 
had  power  to  Bend  bakers,  brewers,  and  oth- 
ers to  the  pillory  for  unlawful  dealings.  See 
Inderwick,  King's  Peace  104. 

The  jurisdiction  over  weights  and  meas- 
ures formerly  exercised  was  taken  from  him 
by  stat.  5  &  6  Will.  IV.  c.  63;  9  M.  &  \V.  747; 
4  Steph.  Com.  323. 

COURT  OF  COMMERCE.  See  United 
States  Coubts. 


COURT  OF  COMMISSIONERS 


700 


COURT  OF  COMMON  PLEAS 


COURT  OF  COMMISSIONERS  OF  SEW- 
ERS.    See  Commissioners  of  Sewers. 

COURT  OF  COMMON  PLEAS.  In  Ameri- 
can Law.  A  court  of  original  and  general 
jurisdiction  for  the  trial  of  issues  of  fact 
and  law  according  to  the  principles  of  the 
common  law. 

Courts  of  this  name  e«xist  in  some  of  the 
states  of  the  United  States,  and  frequently 
have  a  criminal  as  well  as  civil  jurisdiction. 
They  are,  in  general,  courts  of  record,  being 
expressly  made  so  by  statute  in  Pennsyl- 
vania, April  14,  1834,  §  18.  In  Pennsylvania 
they  exercise  an  equity  jurisdiction  also,  as 
well  as  that  at  common  law.  Courts  of  sub- 
stantially similar  powers  to  those  indicated 
in  the  definition  exist  in  all  the  states,  un- 
der various  names. 

In  English  Law.  Formerly  one  of  the 
three  superior  courts  of  common  law  at 
Westminster. 

This  court,  which  is  sometimes  called,  also,  Ban- 
cus  Communis,  Bancus,  and  Common  Bench,  was 
a  branch  of  the  curia  regis.  At  the  end  of  John's 
reign  there  was  a  separation  between  the  court 
which  sat  at  a  certain  place  to  hear  common  pleas 
and  the  court  which  follow'ed  the  king  with  juris- 
diction both  over  common  pleas  and  pleas  of  the 
crown.  There  were  not  as  yet  two  distinct  bodies 
of  judges.  There  is  a  reported  case  in  1237  which 
shows  that  the  distinction  was  well  recognized.  In 
1272  there  was  a  chief  justice  of  the  common  pleas, 
and  from  that  date  it  may  be  said  that  the  separa- 
tion was  complete.  The  common  pleas  was  inferior 
to  the  court  which  followed  the  king,  since  error 
lay  from  it  to  his  court.  Magna  Carta  provided 
that  it  should  sit  at  some  fixed  place,  which  was 
usually  Westminster.    1  Holdsw.  Hist.  E.  L.  74. 

The  establishment  of  this  court  at  Westminster, 
and  the  consequent  construction  of  the  Inns  of 
Court  and  gathering  together  of  the  common-law 
lawyers,  enabled  the  law  itself  to  withstand  the 
attacks  of  the  canonists  and  civilians.  It  derived  its 
name  from  the  fact  that  the  causes  of  common 
people  were  heard  there.  It  had  exclusive  jurisdic- 
tion of  real  actions  as  long  as  those  actions  were  in 
use,  and  had  also  an  extensive  and,  for  a  long  time, 
exclusive  jurisdiction  of  all  actions  between  subjects.. 
This  latter  jurisdiction,  however,  was  gradually  en- 
croached upon  by  the  king's  bench  and  exchequer, 
with  which  it  afterwards  had  a  concurrent  juris- 
diction in  many  matters.  Formerly  none  but  Ser- 
jeants at  law  were  admitted  to  practise  before  this 
court  in  oanc.  See  Serjeants-at-Law.  Its  judges 
were  always  serjeants-at-law. 

It  consisted  of  a  chief  justice  and  four 
puisne  or  associate  justices. 

It  had  a  civil,  common-law  jurisdiction, 
concurrent  with  the  king's  bench  and  ex- 
chequer, of  personal  actions  and  actions  of 
ejectment,  and  a  peculiar  or  exclusive  juris- 
diction of  real  actions,  actions  under  the 
Railway  and  Canal  Traffic  Act,  17  &  18  Vict. 
c.  31,  the  registration  of  judgments,  annui- 
ties, etc.,  1  &  2  Vict.  c.  110 ;  2  &  3  Vict.  c.  11 ; 
3  &  4  Vict.  c.  82;  18  Vict.  c.  15;  respecting 
fees  for  conveyances  under  3  &  4  Will.  IV. 
c.  74 ;  the  examination  of  married  women 
concerning  their  conveyances ;  11  &  12  Vict. 
c.  70 ;  17  &  18  Vict.  c.  75 ;  19  &  20  Vict.  c. 
108,  §  73 ;  and  of  appeals  from  the  revising 
barristers'  court ;  6  &  7  Vict  c.  18.  Whart. 
Law  Diet. 

See  Bill  of  Middlesex. 


Appeals  formerly  lay  from  this  court  to 
the  King's  Bench ;  and  by  statutes  11  Geo. 
IV.  and  1  Will.  IV.  c.  70,  writs  of  error 
were  afterwards  taken  to  the  King's  Bench 
and  Exchequer  Chamber,  from  whose  judg- 
ment an  appeal  lay  to  the  House  of  Lords. 
3  Bla.  Com.  40. 

Its  jurisdiction  has  been  transferred  to 
the  High  Court  of  Justice.  See  Courts  of 
England. 

COURTS  OF  CONSCIENCE.  See  Courts 
of  Requests. 

COURT  FOR  CONSIDERATION  OF 
CROWN  CASES  RESERVED.  A  court  es- 
tablished by  stat.  11  &  12  Vict.  c.  78,  com- 
posed of  such  of  the  judges  of  the  superior 
courts  of  Westminster  as  were  able  to  attend, 
for  the  consideration  of  questions  of  law  re- 
served by  any  judge  in  a  court  of  oyer  and 
terminer,  gaol  delivery,  or  quarter  sessions, 
before  which  a  prisoner  had  been  found 
guilty  by  verdict.  4  Steph.  Com.  442.  The 
trial  judge  was  empowered  to  "state  a  case" 
for  the  opinion  of  that  court.  He  could  not 
be  compelled  to  do  so,  and  only  a  question 
of  law  could  be  raised.  If  the  court  consid- 
ered that  the  point  had  been  wrongly  de- 
cided at  the  trial,  the  conviction  would  be 
quashed.  Prior  to  this  act  a  judge  who  had 
a  doubt  as  to  the  correctness  of  his  opinion 
in  a  criminal  trial  would  sentence  the  pris- 
oner, but  would  suspend  punishment  until 
he  could  consult  his  brother  judges  or  Ser- 
jeants. By  Act  of  1907,  the  Court  of  Crim- 
inal Appeal  was  created  and  the  Court  for 
Crown  Cases  Reser?ed  was  abolished. 

COURT,  CONSISTORY.  See  Consistory 
Court. 

COURT  OF  CONVOCATION.  A  convoca- 
tion or  ecclesiastical  synod,  which  is  in  the 
nature  of  an  ecclesiastical  parliament. 

There  is  one  for  each  province.  They  are  com- 
posed respectively  of  the  archbishop,  all  the  bishops, 
deans,  and  archdeacons  of  their  province,  with  one 
proctor,  or  representative,  from  each  chapter,  and, 
in  the  province  of  Canterbury,  two  proctors  for  the 
beneficed  parochial  clergy  in  each  diocese,  while  in 
the  province  of  York  there  are  two  proctors  for 
each  archdeaconry.  In  York  the  convocation  con- 
sists of  only  one  house;  but  in  Canterbury  there 
are  two  houses,  of  which  the  archbishop  and  bishops 
form  the  upper  house,  and  the  lower  consists  of  the 
remaining  members  of  the  convocation.  In  this 
house  a  prolocutor,  performing  the  duty  of  pres- 
ident, is  elected.  These  assemblies  meet  at  the 
time  appointed  in  the  queen's  writ.  The  convoca- 
tion has  long  been  summoned  pro  forma  only,  but 
is  still,  in  fact,  summoned  before  the  meeting  of 
every  new  parliament,  and  adjourns  immediately 
afterwards,  without  proceeding  to  the  dispatch  of 
any  business. 

The  purpose  of  the  convocation  is  stated  to  be  the 
enactment  of  canon  law,  subject  to  the  license  and 
authority  of  the  sovereign,  and  consulting  on  eccle- 
siastical  matters. 

In  their  judicial  capacity,  their  jurisdic- 
tion extends  to  matters  of  heresy,  schisms, 
and  other  mere  spiritual  or  ecclesiastical 
causes, — an  appeal  lying  from  their  judicial 
proceedings  to  the  king  in  council,  by  stat. 
2  &  3  Will.  IV.  C.  92. 


COURT  OF  CONVOCATION 


701 


COURT  OF  DELEGATES 


But  there  is  a  question  whether  at  any 
time  Convocation  ever  acted  as  a  court 
There  is  some  evidence  to  show  that  in  the 
14th  and  15th  centuries  persons  accused  of 
heresy  were  brought  before  Convocation  by 
the  bishop,  but  the  members  did  not  vote  on 
such  trials,  being  probably  rather  in  the  na- 
ture of  a  body  of  assessors  to  the  arch- 
bishop. Convocation  exercises  no  jurisdic- 
tion at  the  present  day ;  1  Holdsw.  Hist.  E. 

LQ7Q 

Cowell ;  Bac.  Abr.  Ecclesiastical  Courts, 
A,  1;  1  Bla.  Com.  279;  2  Steph.  Com.  525, 
6G8;  2  Burn,  Eccl.  Law,  18. 

COURT  OF  THE  CORONER.  A  court  the 
chief  duty  of  which  was  to  inquire,  when 
any  one  dies  in  prison,  or  comes  to  a  violent 
or  sudden  death,  by  what  manner  he  came 

to  his  end;  4  Steph.  Com.  323;  4  Bla.  Com. 

274;    now    generally    known   as   an   inquest. 

See  Coroner. 

COURTS  OF  THE  COUNTIES  PALATINE. 

In  the  county  palatine  of  Durham  there 
was  a  Central  Court  of  Pleas,  a  body  of  jus- 
tices who  sat  by  virtue  of  commissions  of  as- 
size, oyer  and  terminer  and  gaol  delivery. 
The  judges  were  often  the  same  persons  as 
those  who  sat  in  the  royal  courts.  The  bish- 
op's council  was  a  court  of  appeal  and  had 
original  jurisdiction.  The  bishop  had  his 
Chancery.  In  1536  an  act  was  passed  by 
which  the  independent  judicial  system  was 
made  to  depend  directly  upon  the  king. 

In  the  county  palatine  of  Lancaster,  the 
courts  were  a  Court  of  Common  Pleas,  jus- 
tices of  assize,  gaol  delivery,  oyer  and  ter- 
miner and  of  the  peace;  a  Chancery  Court 
presided  over  by  the  Vice-Chancellor ;  and  a 
Court  of  Duchy  Chamber,  presided  over  by 
the  Chancellor  of  the  duchy,  which  sat  at 
Westminster  and  heard  appeals  from  the 
Chancery  Court.  It  has  ceased  to  exist 
The  Chancellor  of  the  Duchy  is  no  longer  a 
judicial  officer.  The  Act  of  1536  (supra) 
extended  to  Lancaster  and  also  to  Chester. 

In  the  county  palatine  of  Chesler,  a  jus- 
tice held  a  Court  of  Pleas  for  the  Crown 
and  Common  Pleas.  The  Lord  Chancellor 
or  Lord  Keeper,  by  act  in  1536,  could  ap- 
point justices  of  the  peace  and  gaol  delivery 
for  Chester  and  Wales.  The  chamberlain 
of  Chester,  assisted  by  the  vice-chamberlain, 
exercised  the  equitable  and  common-law  ju- 
risdiction of  the  Chancery  and  of  a  Court  of 
Exchequer.  The  palatinate  jurisdiction  of 
Chester  and  Wales  ended  in  1S30.  Six  coun- 
ties in  Wales  were  created  in  12S4  and  or- 
ganized on  the  English  model ;  other  coun- 
ties in  Wales  were  under  the  Lords  March- 
ers. 

For  the  existing  courts,  see  Courts  of 
England;  County  Palatine;  1  Holdsw. 
Hist.  E.  L.  47;  1  Steph.  Hist.  C.  L.  138; 
Coke,  4  Inst.  239 ;  1  Harg.  L.  Tr.  378. 

COURT  OF  DELEGATES.  A  court  of  ap- 
peal for  all  ecclesiastical   cases  and   called 


the  High  Court  of  Delegates.    25  Henry  VIII. 
c.  19;  repealed,  1  &  2  Phil.  &  Mary,  c.  8;  re- 
vived, 1  Eliz.  c.  1.     The  crown  could  la 
Commission  of  Review  and  rehear  the  C 
It  was  held  by  commissioners  appointed  un- 
der the  Great  Seal.     It  was  therefore  a  shift- 
ing body,  which  could  not  estal  lish  general 
rules  of  procedure.    It  was  usually  composed 
of  junior  civilians.     By  2  &  3  Will.  IV.  ■ 
its  jurisdiction  was  transferred  to  the  Privy 
Council.     1  Holdsw.  Hist.  E.  L.  373. 

COURT  FOR  DIVORCE  AND  MATRI- 
MONIAL CAUSES.  In  English  Law.  A 
court  which  had  the  jurisdiction  formerly 
exercised  by  the  ecclesiastical  courts  in  re- 
spect of  divorces  a  menea  et  thoro,  suits  o£ 
nullity  of  marriage,  suits  of  jactitation  of 
marriage,  suits  for  restitution  of  conjugal 
rights,  and  all  suits,  causes,  and  matters 
matrimonial. 

It  consisted  of  the  lord  chancellor  and  the 
justices  of  the  queen's  bench,  the  common 
pleas,  the  exchequer,  and  the  judge  of  the 
court  of  probate,  who  was  entitled  judge  or- 
dinary. 

The  judge  ordinary  exercised  all  the  pow- 
ers of  the  court,  except  petitions  for  dissolv- 
ing or  annulling  marriages  and  applications 
for  new  trials  of  matters  of  fact,  bills  of  ex- 
ception, special  verdict  and  special  cases, 
for  hearing  which  excepted  cases  he  mnst 
be  joined  by  two  of  the  other  judges.  Pro- 
vision was  made  for  his  absence  by  authoriz- 
ing the  lord  chancellor  to  appoint  one  of  cer- 
tain judicial  persons  to  act  in  such  absence. 
Juries  were  summoned  to  try  matters  of 
fact,  and  such  trials  were  conducted  in  the 
same  manner  as  jury  trials  at  common  law. 
It  is  now  merged  in  the  High  Court  of  Jus- 
tice.   See  Courts  of  England. 

COURT  OF  THE  DUCHY  OF  LANCAS- 
TER. A  court  of  special  jurisdiction,  which 
has  jurisdiction  of  all  matters  of  equity  re- 
lating to  lands  holden  of  the  king  in  right 
of  the  duchy  of  Lancaster.  See  Courts  of 
the  Counties  Palatine. 

COURT  OF  THE  EARL  MARSHAL.  In 
the  reign  of  William  the  Conqueror  the  mar- 
shal was  next  in  rank  to  the  constable,  in 
command  of  the  army.  When  the  constable's 
office  ceased,  bis  duties  devolved  upon  the 
earl  marshal.  The  military  Court  of  the 
Constable  came  to  be  known  as  the  Mar- 
shal's Court,  or.  in  its  modern  form.  Court- 
Martial.  Aside  from  its  criminal  jurisdic- 
tion, it  had  much  to  do  with  questions  re- 
lating to  flef8  and  military  tenure--,  though 
not  to  property  rights  involved  therein.  The 
earl  marshal  is  now  the  head  of  the  Heralds' 
College.  Davis.  Mil.  Laws  of  l".  S.  14.  See 
Hale.  Hist.  C.  L.  36;  Grose,  MIL  Antiq.  See 
Court  OF  Chivalry;  Courts-Martial;  Con- 
stable of  England. 

COURTS  OF  ENGLAND.  The  Judicature 
Acts  (in  force  November  2.  1ST.".)  created 
the  Supreme  Court  of  Judicature.     It  con- 


COURTS  OF  ENGLAND 


702 


COURTS  OF  ENGLAND 


sists  of  the  High  Court  of  Justice  and  the 
Court  of  Appeal,  both  of  which  are  superior 
courts  of  record.  In  itself  it  performs  no 
judicial  function. 

To  the  High  Court  of  Justice  was  trans- 
ferred every  jurisdiction  formerly  vested  in 
the  High  Court  of  Chancery,  the  Queen's 
Bench,  and  the  Common  Pleas  at  "Westmins- 
ter, the  Exchequer  as  a  court  of  revenue  as 
well  as  a  common-law  court,  the  High  Court 
of  Admiralty,  the  Court  of  Probate,  the 
Court  for  Divorce  and  Matrimonial  Causes, 
the  Court  of  Common  Pleas  at  Lancaster, 
the  Court  of  Pleas  at  Durham,  the  Courts 
created  by  Commissioners  of  Assize,  of  Oyer 
and  Terminer,  and  of  Gaol  Delivery,  or  any 
of  such  Commissioners,  and,  by  Act  of  18S3, 
the  jurisdiction  of  the  London  Court  of 
Bankruptcy. 

To  the  Court  of  Appeal  were  transferred 
all  jurisdiction  and  powers  of  the  Court  of 
Appeal  in  Chancery,  the  Court  of  Appeal  in 
Chancery  of  the  County  Palatine  of  Lan- 
caster, the  Court  of  the  Lord  Warden  of  the 
Stannaries,  the  Court  of  Exchequer  Cham- 
ber, the  Judicial  Committee  of  the  Privy 
Council  upon  appeal  from  any  judgment  or 
order  of  the  High  Court  of  Admiralty,  and 
many  other  minor  appellate  jurisdictions. 

The  High  Court  of  Justice  now  consists 
of  three  divisions:  The  King's  Bench  Divi- 
sion, the  Chancery  Division,  and  the  Pro- 
bate, Divorce  and  Admiralty  Division.  By 
the  original  Judicature  Act  each  of  the  su- 
perior courts  of  common  law  was  made  a 
separate  division  of  the  High  Court  of  Jus- 
tice, but  by  an  Order  in  Council,  December 
16,  18S0,  the  Common  Pleas  and  Exchequer 
Divisions  were  merged  in  the  King's  Bench 
Division,  and  the  offices  of  Lord  Chief  Jus- 
tice of  the  Common  Pleas  Division  and  Lord 
Chief  Baron  of  the  Exchequer  Division  were 
abolished. 

The  courts  of  law  give  any  relief  which 
the  Court  of  Chancery  could  formerly  have 
given.  Law  and  equity  are  now  adminis- 
tered concurrently.  See  (1887)  12  App.  Cas. 
308. 

The  King's  Bench  Division.  The  Lord 
Chief  Justice  of  England  is  the  President, 
nominated  by  the  Prime  Minister;  there  are 
seventeen  puisne  judges  appointed  on  the 
recommendation  of  the  Lord  Chancellor. 
They  hear  cases  in  London  or  at  the  assizes 
throughout  England  and  Wales.  At  the 
commencement  of  each  sitting,  one  judge  is 
appointed  to  hear  causes  in  London  and  one 
in  Liverpool.  They  are  assisted  by  nine 
Masters  who  have  power  to  transact  all 
interlocutory  and  much  other  business,  by 
District  Registrars  in  most  of  the  large  pro- 
vincial towns  and  by  Official  Referees.  It 
has  the  bankruptcy  jurisdiction  formerly 
vested  in  the  London  Court  of  Bankruptcy, 
exercised  by  one  of  the  judges  called  the 
Judge  in  Bankruptcy. 

The  judges  of  this  division  frequently  sit 
as  a  Divisional  Court,  consisting  of  two  or 


more  judges.  Any  number  of  such  courts 
may  sit  at  the  same  time.  In  civil  matters 
its  jurisdiction  is  almost  entirely  appellate. 
It  deals  with  appeals  from  Revising  Barris- 
ters, from  County  Courts '  in  Bankruptcy, 
and  from  certain  inferior  courts ;  with  spe- 
cial cases  stated  by  the  courts  of  petty  ses- 
sions and  quarter  sessions  in  civil  matters, 
and  by  the  Railway  Commissioners;  appeals 
from  the  Mayor's  Court,  London,  the  Salford 
Hundred  Court,  the  V.  C.  Court  of  Oxford, 
and  in  a  few  cases  of  appeals  from  a  judge 
of  the  High  Court  in  Chambers.  On  the 
crown  side  it  deals  with  indictments  and 
criminal  informations,  and  in  civil  proceed- 
ings with  mandamus,  habeas  corpus,  certi- 
orari, prohibitions,  informations  in  the  na- 
ture of  quo  warranto,  attachments  for  con- 
tempt of  court  and  petitions  of  right 

The  Chancery  Division  consists  of  the 
Lord  Chancellor,  who  is  President,  and  six 
puisne  judges;  the  latter  are  divided  into 
three  groups  of  two  each.  The  work  con- 
sists chiefly  of  equity  business ;  it,  however, 
administers  law  as  well  as  equity,  but  it 
tries  no  cases  with  a  jury.  It  deals  with 
administering  the  estates  of  deceased  per- 
sons, partnership,  mortgages,  charitable  and 
private  trusts,  infants,  and  other  heads  of 
equitable  jurisdiction. 

The  Probate,  Divorce  and  Admiralty  Divi- 
sion consist  of  the  President  and  one  puisne 
judge.  Probate  matters  consist  of  the  pro- 
bate of  wills,  but  their  interpretations  and 
the  administrations  of  the  estates  are  in  the 
Chancery  Division.  In  admiralty  matters  it 
hears  appeals  from  the  County  Courts. 

The  Court  of  Appeal  consists  of  the  Mas- 
ter of  the  Rolls  and  five  Lords  Justices  of 
Appeal,  with  the  occasional  assistance  of  the 
Lord  Chancellor,  any  ex-Lord  Chancellor, 
the  Chief  Justice  of  England  and  the  Presi- 
dent of  the  P.,  D.  &  A.  Division.  It  sits  in 
two  divisions ;  the  Master  of  the  Rolls  pre- 
sides in  the  first  and  the  senior  Lord  Justice 
in  the  second.  It  has  the  jurisdiction  for- 
merly exercised  by  the  Lord  Chancellor  and 
by  the  Court  of  Appeal  in  Chancery,  includ- 
ing bankruptcy,  and  by  the  Exchequer  Cham- 
ber, and  in  admiralty  and  lunacy,  etc. 

The  House  of  Lords  is  not  a  part  of  the 
Supreme  Court  of  Judicature.  When  sitting 
as  the  supreme  appellate  court,  it  is  usually 
composed  of  the  Lord  Chancellor,  the  ex- 
Lord  Chancellor,  if  any,  and  the  six  Lords 
of  Appeal  in  Ordinary;  peers  who  have  held 
high  judicial  office  are  entitled  to  sit.  At 
least  three  judges  are  required  to  form  a 
quorum.  It  may  summon  the  judges  to  as- 
sist in  their  deliberations  and  give  their 
opinion  on  any  point  of  law.  Lay  peers 
have,  strictly  speaking,  a  right  to  vote,  but, 
since  1S83,  have  never  exercised  that  right. 
It  has  no  original  jurisdiction  in  ordinary 
civil  actions ;  an  appeal  lies  to  it  against  any 
judgment  or  order  of  the  Court  of  Appeal. 

Judicial  Committee  of  the  Privy  Council, 
as  created  in  1S33,  is  a  court  of  final  appeal 


COURTS  OF  ENGLAND 


703 


COURTS  OF  ENGLAND 


from  the  ecclesiastical  courts,  the  courts  of 
India,  the  colonies,  the  Channel  Islands  and 
the  Isle  of  Man.  It  is  held  by  the  Lord 
Chancellor,  the  six  Lords  of  appeal  in  Or- 
dinary, if  Privy  Councillors,  and  such  other 
members  of  the  Privy  Council  as  have  held 
high  judicial  office  in  the  United  Kingdom 
or  the  colonics. 

There  are  other  courts  with  local  or  spe- 
cial jurisdiction  which  are  superior  courts 
of  record  but  are  not  part  of  the  Supreme 
Court  of  Judicature. 

The  Chanecnj  Court  of  the  County  Pala- 
tine of  Lancaster  is  held  by  the  V.  C.  of  the 
Duchy  and  County  Palatine  of  Lancaster  at 
Liverpool  and  Manchester,  within  the  county 
palatine  it  has  the  jurisdiction  of  the  Chan- 
cery Division ;  it  is  essential  that  the  par- 
ties to  actions  should  be  within  the  county 
palatine. 

The  Chancery  Court  of  the  County  Pala- 
tine of  Durham  is  held  by  the  Chancellor  of 
the  County  Palatine  at  Durham.  Either  the 
parties  to  a  suit  must  reside  in  the  county 
palatine  or  the  property  be  situate  there.  Its 
jurisdiction  is  unlimited  in  amount  and  is 
similar  to  that  of  the  Chancery  Division. 

The  Court  of  Railway  and  Canal  Commis- 
sioners is  held  by  a  judge  of  the  High  Court 
and  two  laymen  appointed  by  the  crown,  on 
the  nomination  of  the  Board  of  Trade,  one 
of  whom  must  be  an  expert  in  railway  mat- 
ters. The  judge  alone  decides  points  of  law. 
It  deals  with  transportation  facilities,  pref- 
erences, rates,  etc.  An  appeal  lies  to  the 
Court  of  Appeal. 

The  Inferior  Courts  of  Record.  The  most 
important  are  the  County  Courts  (see  that 
title).  There  are  nineteen  borough  courts, 
whose  jurisdiction  is  generally  limited  to 
causes  of  action  arising  in  the  borough;  in 
most  of  them  the  Recorder  is  the  judge.  The 
most  prominent  of  them  are:  The  Mayor's 
Court,  Tendon;  the  City  of  London  Court; 
the  Liverpool  Court  of  Passage;  the  Salford 
Hundred  Court;  the  Courts  of  Tolzey  and 
Pie  Poudre,  Bristol.  From  the  Court  of 
Passage  an  appeal  lies  to  the  Court  qf  Ap- 
peal ;  from  the  others  to  the  King's  Bench 
Division. 

The  University  Courts  are  analogous  to  the 
borough  courts,  anil  claim  exclusive  jurisdic- 
tion over  the  members  of  the  Universities. 
See  Chancellors'  Courts  of  the  Two  UNI- 
VERSITIES. 

The  Sheriffs  Court  is  held  by  the  under- 
sheriff  with  a  jury  of  twelve. 

A  Coroner's  Court  is  held  in  every  county, 
every  county  borough  and  in  borough  having 
a   court  of   quarter   sessions. 

Inferior  Courts  Not  of  Record.  The  Revis- 
ing Barrister's  Court  annually  revises  the 
lists  of  parliamentary  voters,  of  burgesses 
and  county  electors.  It  is  held  by  one  bar- 
rister. An  appeal  lies,  in  certain  cases,  on  a 
point  of  law,  to  the  King's  Bench -Divisional 
Court,  and  from  there,  but  only  on  special 
leave,  to  the  Court  of  AppeaL 


The  Courts  of  Petty  Sessions,  which  may 
be  held  by  a  single  justice,  have  jurisdiction 
in  disputes  as  to  contracts  between  master 
and  Bervant,  or  between  members  of  friendly 
societies,  affiliation  orders  and  in  certain 
matrimonial  matters. 

The  ordinary  criminal  courts  are:  Courts 
of  Petty  Session;  Courts  of  Quart  >n; 

the  Assizes;  the  Central  Criminal  Court;  the 
King's  Bench  Division;  and  the  Court  of 
Criminal  Appeal.  Courts  of  Borough  Quar- 
ter Sessions  are  now  held  in  131  of  the  larger 
3  and  towns,  having  the  same  jurisdic- 
tion as  the  Quarter  Sessions  in  a  county. 
11:  ■  judge  of  each  is  called  a  Recorder  {q.  v.). 

Peers  charged  with  treason,  felony,  or  mis- 
prision are  tried  either  in  the  House  of  Lords 
or  in  the  Court  of  the  Lord  High  Steward. 

Appeals  in  criminal  cases  from  the  Chan- 
nel Islands,  the  Isle  of  Man,  the  Empire  of 
India  and  the  colonies  are  heard  by  the  Judi- 
cial Committee  of  the  Privy  Council. 

Courts  of  Petty  Sessions  are  held  by  Jus- 
tices of  the  Peace  appointed  by  the  crown 
on  the  recommendation  of  the  Lord  Lieuten- 
ant of  the  county.  There  is  no  limit  to  the 
number  in  any  county.  They  are  unpaid. 
They  elect  their  own  chairmen.  They  hold 
office  for  life,  but  may  be  removed  by  the 
Lord  Chancellor  for  misconduct.  They  are 
appointed  for  a  whole  county,  but  ordinarily 
act  in  the  sessional  division  in  or  near  which 
they  reside.  Any  two  or  more  may  in  their 
own  division  form  a  Capital  Court  of  Petty 
Session.  An  appeal  lies  to  the  Court  of 
Quarter  Session  or  the  King's  Bench  Divi- 
sion, the  latter  only  on  a  point  of  law. 

Courts  of  Quarter  Sessions  are  inferior 
Courts  of  Record.  All  the  justices  of  the 
county  are  justices  of  this  court  for  their 
counly  ;  two  constitute  a  quorum.  They  try 
by  jury  prisoners  committed  for  trial  by  the 
Courts  of  the  Petty  Sessions  for  the  county. 
In  boroughs  there  is  a  j:reat  variety  of  such 
courts  under  their  various  charters.  The 
judge  of  a  borough  court  is  called  a  Record- 
er. Appeals  from  the  Petty  Sessions  are 
heard  without  a  jury;  the  cases  are  reheard. 
The  King's  Bench  Division  may  review  on 
certiorari  any  proceeding  of  a  Court  of 
Quarter   Sessions. 

The  Assizes  are  held  by  the  Judges  of  the 
High  Court  at  the  capital  of  each  county  and 
other  assize  towns.  There  are  eight  circuits. 
See  Assizr. 

The  Central  Criminal  Court  was  created  in 
1834.  It  is  the  Court  of  Assize  and  Quarter 
Session  for  the  City  of  London  and  its  Liber- 
ties, and  the  Court  of  Assize  for  the  Coun- 
ties of  London  ami  Middlesex  and  certain 
parts  of  Kssex.  Kent  and  Surrey.  It  Bits  at 
least  twelve  times  a  year.  Its  judges  Include 
the  Lord  Chancellor,  the  Judces  of  the  High 
Court,  the  Lord  Mayor.  Aldermen.  Recorder 
ami  Common  Serjeant  of  the  City  of  London. 
and  two  Commissioi 

The  Kinrj's  Bench  Division  Is  the  successor 
of  the  Assize  Court  for  the  ancient  county  of 


COURTS  OF  ENGLAND 


704 


COURTS  OF  ENGLAND 


Middlesex,  which  could  try  on  indictment 
any  treason,  felony,  or  misdemeanor  com- 
mitted therein,  and  it  still  has  the  same  pow- 
er, though  rarely  exercised.  It  can  try  any 
misdemeanor  committed  in  any  part  of  Eng- 
land, for  which  a  criminal  information  has 
been  filed  by  an  officer  of  the  crown,  and  any 
crimes  committed  out  of  England  by  public 
officials  of  colonies,  or  by  officials  of  the 
crown  in  India.  Any  indictment  from  inferi- 
or courts  may  be  removed  by  certiorari  and 
tried  there  either  "at  bar"  (by  three  judges), 
or  at  nisi  prius  (by  one),  before  a  jury  of 
the  county  where  the  crime  was  committed. 
But  this  can  be  done  only  on  the  ground  that 
an  impartial  trial  could  not  be  had  in  the 
court  below,  or  that  some  difficult  question 
of  law  is  involved,  or  a  special  jury,  or  a 
view  of  certain  premises,  is  necessary  to  a 
satisfactory  trial.  It  has  general  superin- 
tendence over  all  inferior  courts  of  criminal 
jurisdiction  and  can  review  any  proceedings 
of  a  court  of  quarter  sessions  on  summary 
jurisdiction  or  certiorari.  Any  court  of  sum- 
mary jurisdiction  may  state  a  case  setting 
forth  tbe  facts  for  the  King's  Bench  Division 
and  the  latter  may  order  justices  of  the  pet- 
ty sessions  to  state  such  a  case.  A  court  of 
quarter  sessions  may  state  a  case  for  it  on 
a  point  of  law  arising  in  some  matter  that 
has  come  before  it  on  appeal  from  a  court 
of  petty  sessions. 

The  Court  of  Criminal  Appeal  has  juris- 
diction over  all  criminal  cases  tried  at  Quar- 
ter Sessions,  the  Assizes,  the  Central  Crim- 
inal Court,  or  in  the  King's  Bench  Division. 
It  consists  of  the  Lord  Chief  Justice  of  Eng- 
land and  the  other  judges  of  the  King's 
Bench  Division.  Not  less  than  three  judges 
must  be  present  and  the  number  must  be  un- 
even. An  appeal  lies  to  the  House  of  Lords 
when  the  Attorney  General  has  certified  that 
a  point  of  law  of  exceptional  public  impor- 
tance is  involved.  A  convicted  prisoner  has  a 
right  of  appeal  on  any  question  of  law  or 
fact,  or  of  mixed  law  and  fact,  if  he  can  ob- 
tain leave  of  the  Court  of  Criminal  Appeal 
or  a  certificate  from  the  judge  who  tried  the 
case  that  it  is  a  fit  case  for  appeal.  By  leave 
of  the  Court  of  Criminal  Appeal  a  prisoner 
can  appeal  against  a  sentence  passed  upon 
him,  but  in  such  case  that  the  court  may  in- 
flict a  more  serious  sentence.  It  may  quash  a 
conviction'  and  may  enter  a  verdict  of  acquit- 
tal. In  a  proper  case  it  will  hear  fresh  evi- 
dence.   It  cannot  grant  a  new  trial. 

The  House  of  Lords  may  try  any  one  im- 
peached by  the  House  of  Commons  for  any 
high  crime  or  misdemeanor;  also  temporal 
peers  and  peeresses  accused  of  high  treason, 
felony  or  misprision.  At  such  trial  it  is 
presided  over  by  a  peer  as  Lord  High  Stew- 
ard appointed  by  the  crown,  or  in  the  ab- 
sence of  such  appointment,  by  the  Lord  Chan- 
cellor. All  the  members  of  the  House  are  en- 
titled to  be  present  and  are  equally  judges 
of  law  and  fact.     The  judges  may  be  sum- 


moned to  give  their  opinion  on  any  question 
of  law.  The  "bishops  may  be  present,  but 
may  not  vote  in  capital  cases.  If  the  House 
of  Lords  is  not  sitting,  the  accused  will  be 
tried  in  the  Court  of  the  Lord  High  Steward. 
See  that  title. 

The  above  is  abridged  from  Odgers,  Com- 
mon Law.  See  also  Halsbury's  Laws  of  Eng- 
land, title  Courts. 

See  County  Courts. 

COURT  OF  EQUITY.  A  court  which  ad- 
ministers justice  according  to  the  principles 
of  equity. 

As  to  the  constitution  and  jurisdiction  of 
such  courts,  see  Court  of  Chancery. 

Such  courts  are  not,  strictly  speaking, 
courts  of  record  except  when  made  so  by 
statute;  Yelv.  226;  Evans  v.  Tatem,  9  S.  & 
R.  (Pa.)  252,  11  Am.  Dec.  717.  Their  decrees 
touch  the  person  only;  Post  v.  Neafie,  3  Cai. 
(N.  Y.)  36;  but  are  conclusive  between  the 
parties;  Coit  v.  Tracy,  8  Conn.  268,  20  Am. 
Dec.  110 ;  Van  Riper  v.  Claxton,  9  N.  J.  Eq. 
302;  Hopkins  v.  Lee,  6  Wheat.  (U.  S.)  109, 
5  L.  Ed.  218.  See  Rice's  Heirs  v.  Lowan,  2 
Bibb  (Ky.)  149.  And  as  to  the  personalty, 
their  decrees  are  equal  to  a  judgment;  2 
Madd.  355 ;  2  Salk.  507;  1  Vern.  214;  Post  v. 
Neafie,  3  Cai.  (N.  Y.)  35;  and  have  prefer- 
ence according  to  priority ;  3  P.  Wins.  401, 
n. ;  Cas.  temp.  Talb.  217;  4  Bro.  P.  C.  287; 
Thompson  v.  Brown,  4  Johns.  Ch.  (N.  Y.) 
638.  See  Chase,  Bla.  Com.  843,  n.  3.  They 
are  admissible  in  evidence  between  the  par- 
ties;  Pleasants  v.  Clements,  2  Leigh  (Va.) 
474 ;  Goddard  v.  Long,  5  Smedes  &  M. 
(Miss.)  783;  Randall  v.  Parramore,  1  Fla. 
409;  Whitmore  v.  Johnson's  Heirs,  10 
Humphr.  (Tenn.)  610;  and  see  Landers  v. 
Beauchamp,  8  B.  Monr.  (Ky.)  493;  Ward- 
law  v.  Hammond,  9  Rich.  (S.  C.)  454;  when 
properly  authenticated ;  Barbour  v.  Watts,  2 
A.  K.  Marsh.  (Ky.)  290;  and  come  within 
the  provisions  of  the  constitution  for  authen- 
tication of  judicial  records  of  the  various 
states  for  use  as  evidence  in  other  states; 
Craig  v.  Brown,  Pet.  C.  C.  352,  Fed.  Cas.  No. 
3,328. 

An  action  may  be  brought  at  law  on  a  de- 
cree of  a  foreign  court  of  chancery  for  an 
ascertained  sum;  1  Campb.  253;  Burnett  v. 
Wylie,  Hempst  197,  Fed.  Cas.  No.  2172a; 
but  not  for  an  unascertained  sum ;  Post  v. 
Neafie,  3  Cai.  (N.  Y.)  37,  note;  but  nil  debet 
or  nul  tiel  record  is  not  to  be  pleaded  to  such 
an  action;  Evans  v.  Tatem,  9  S.  &  R.  (Pa.) 
252,  11  Am.  Dec.  717.  See  Equity  ;  Court  of 
Chancery. 

COURT  OF  ERROR.  An  expression  ap- 
plied especially  to  the  court  of  exchequer 
chamber  and  the  house  of  lords,  as  taking 
cognizance  of  error  brought.  Moz.  &  W. 
Diet.  3  Steph.  Com.  333.  It  is  applied  in 
some  of  the  United  States  to  the  court  of 
last  resort  in  the  state.  See  Court  of  Ap- 
peals. 


COURT  OF  EXCHEQUER 


705 


COURT  OF  FACULTIES 


COURT     OF     EXCHEQUER.       In     English 

Law.  A  superior  court  of  record,  administer- 
ing justice  in  questions  of  law  and  revenue. 
It  was  the  lowest  in  rank  of  the  three  superior 
common-law  courts  of  record,  and  had  jurisdiction 
originally  only  of  cases  of  injury  to  the  revenue  by 
withholding  or  non-payment.  The  privilege  of  suing 
and  being  sued  in  this  court  in  personal  actions 
was  extended  to  the  king's  accountants,  and  then, 
by  a  fiction  that  the  plaintiff  was  a  debtor  of  the 
king  to  all  personal  actions.  See  Quo  Minis,  Wkit 
of.  It  had  formerly  an  equity  jurisdiction,  and  the 
cases  were  heard  before  the  Treasurer,  the  Chancel- 
lor of  the  Exchequer  and  the  Barons.  By  statute 
in  1842  this  jurisdiction  was  transferred  to  the 
court  of  chancery. 

It  consisted  of  one  chief  and  four  puisne 
judges  or  barons. 

As  a  court  of  common  law,  it  adminis- 
tered redress  between  subject  and  subject 
in  all  actions  whatever,  except  real  actions. 

The  appellate  jurisdiction  from  this  court 
was  to  the  judges  of  the  king's  bench  and 
common  pleas  sitting  as  the  court  of  ex- 
chequer chamber,  and  from  this  latter  court 
to  the  house  of  lords;  3  Steph.  Com.  338;  3 
Bla.  Com.  44.  Its  jurisdiction  has  been 
transferred  to  the  high  court  of  justice.  See 
Courts  of  England. 

COURT  OF  EXCHEQUER  CHAMBER.  In 
English  Law.  A  court  for  the  correction  and 
prevention  of  errors  of  law  in  the  three  su- 
perior common-law  courts  of  the  kingdom. 

A  court  of  exchequer  chamber  was  first  erected 
by  statute  31  Edw.  III.  c.  12,  to  determine  causes 
upon  writs  of  error  from  the  common-law  side  of 
the  exchequer  court.  It  consisted  of  the  chancellor, 
treasurer,  and  the  "justices  and  other  sage  persons 
as  to  them  seemeth."  The  judges  were  merely  as- 
sistants. A  second  court  of  exchequer  chamber 
was  instituted  by  statute  27  Eliz.  c.  8,  consisting 
of  the  justices  of  the  common  pleas  and  the  ex- 
chequer, or  any  six  of  them,  which  had  jurisdic- 
tion in  error  of  cases  in  the  king's  bench.  In 
1830  these  courts  were  abolished  and  the  court  of 
exchequer  chamber  substituted  in  their  place  as  an 
Intermediate  court  of  appeal  between  the  three 
common-law  courts  and  Parliament.  It  consisted 
of  the  judges  of  the  two  courts  which  had  not  ren- 
dered the  judgment  in  the  court  below.  It  is  now 
merged  in  the  High  Court  of  Justice.  See  Courts 
op  England. 

There  was  an  early  practice,  continuing  as 
late  as  the  17th  century,  by  which  cases  of 
difficulty  in  either  of  the  three  common-law 
courts  might  be  adjourned  to  be  argued  be- 
fore all  the  judges  and  the  barons  in  the 
exchequer  chamber;  but  the  judgment  was 
given  in  the  court  in  which  the  proceedings 
had  begun.    1  Holdsw.  Hist.  E.  L.  109. 

COURT  OF  FACULTIES.  A  tribunal  of 
the  archbishop  in  England. 

It  does  not  hold  pleas  in  any  suits,  but 
creates  rights  to  pews,  monuments,  and  other 
mortuary  matters.  It  has  also  various  other 
powers  under  25  Hen.  VIII.  c.  21,  in  grant- 
ing licenses,  faculties,  dispensations,  etc.,  of 
different  descriptions;  as,  a  license  to  marry, 
a  faculty  to  erect  an  organ  in  a  parish 
church,  to  level  a  churchyard,  to  remove 
bodies  previously  buried;  and  it  may  also 
grant  dispensations  to  eat  flesh  on  days  pro- 
Bouv.— 45 


hibited,  or  to  ordain  a  deacon  under  age,  and 
the  like.  The  archbishop's  office  in  this 
tribunal  is  called  magister  ad  facilitates;  Co. 
4th  Inst.  337 ;    2  Chit.  Gen.  Pr.  TjuT. 

It  still  exists  as  a  registry  for  marriage 
licenses.     It  appoints  notaries. 

See  Coubt  of  Ar<  i 


COURT      OF      FIRST      INSTANCE. 
First  Instance. 


See 


COURTS  OF  THE  FOREST.    Courts  held 

for  the  enforcement  of  the  forest  laws.  The 
lowest  of  these  was  the  YVoodinote,  or  I 
of  Attachments  (q.  v.).  The  next  was  the 
Swainmote  (q.  i".).  The  highest  was  the 
Court  of  the  Chief  Justice  (q.  v.).  There 
was  also  a  Survey  of  Dogs  (see  Regabd)  held 
by  the  Regarders  of  the  Forest  every  three 
years  for  the  lawing  of  dogs.  Inderwick, 
King's  Peace.    See  Forest  Laws. 

COURTS  OF  FRANCE.  Cour  de  Cassa- 
tion (from  cassor,  to  reverse,  because  it  only 
affirms  or  reverses)  is  the  highest  court  in 
France  (the  Tribunal  des  Conflits  possibly 
excepted).  It  is  composed  of  forty-five  Con- 
seillers,  with  one  Premier  President  and 
three  Presidents  de  Chambre.  Attached  to  it 
are  sixty  lawyers  who  are  both  Avoues  and 
Avocats. 

There  are  twenty-seven  Cours  dAppel,  sit- 
ting in  twenty-seven  different  cities  and  each 
having  jurisdiction  over  several  departments; 
also  three  hundred  and  fifty-nine  district 
courts  of  first  instance,  two  hundred  and 
fourteen  Tribunals  of  Commerce,  and  a  large 
number  of  Justices  of  the  Peace ;  also  a  cer- 
tain number  of  Tradesmen's  Courts,  Conseils 
de  Prud'hommes. 

Tribunal  des  Conflits. — This  is  a  juris- 
dictional court  and  nothing  else,  A  dispute 
as  to  whether  a  given  question  shall  be  dis- 
posed of  by  a  government  department  or  by 
the  law  courts  is  decided  by  this  court.  The 
Minister  of  Justice  is  President  of  this  court, 
ex  officio ;  the  eight  other  members  are  taken 
from  the  Conseil  d'Etat  and  the  Cour  de 
Cassation. 

COURTS  OF  THE  FRANCHISES.  Juris- 
dictions in  the  early  Norman  period  which 
rested  upon  royal  grants — often  assumed. 
Edward  I.,  in  1274,  sent  out  commissioners 
to  enquire  by  what  warrant  different  laud- 
owners  were  exercising  their  jura  regalia. 
Those  showing  continued  possession  since 
the  beginning  of  Richard  I.  were  allowed  to 
stand — chiefly  the  less  important  franchises; 
the  exceptions  are  the  palatinate  jurisdictions. 
See  Courts  of  the  Ouumtjuks  Palatine. 
There  were  many  varieties  of  lesser  fran- 
chises, such  as  those  conferred  by  the  old 
Saxon  terms,  sac  and  soc,  infangtheft  and 
outfangtheif,  view  of  frankpledge.  Some  of 
these  franchises  were  recognized  as  existing 
by  the  County  Courts  Acts,  lS4G-18Sa  1 
Holdsw.  Hist.  E.  L.  6L 


COURT  GEN.  QUARTER  SESSIONS      706 


COURT  OF  HUSTINGS 


COURT  OF  GENERAL  QUARTER  SES- 
SIONS OF  THE  PEACE.     In  American  Law. 

A  court  of  criminal  jurisdiction,  so-called 
in  many  states. 

In  English  Law.  A  court  of  criminal  ju- 
risdiction, in  England,  held  in  each  county 
once  in  every  quarter  of  a  year,  but  in  the 
county  of  Middlesex  twice  a  month.  4  Steph. 
Com.  317.  When  held  at  other  times  than 
quarterly,  the  sessions  are  called  "general 
sessions  of  the  peace." 

It  is  held  before  two  or  more  justices  of 
the  peace,  one  of  whom  was  a  justice  of 
the  quorum. 

Edward  III.  appointed  justices  of  the 
peace  for  each  county  in  England  and  enact- 
ed that  they  should  meet  at  least  four  times 
a  year,  and  the  ordinary  meetings  of  the 
county  court  appear  soon  to  have  merged  in, 
or  been  extinguished  by,  these  quarterly 
meetings  of  justices  which  are  now  known 
as  Quarter  Sessions  of  the  Peace.  2  Odgers, 
C.  L.  9G6.    See  Courts  of  England. 

COURT  OF  GREAT  SESSIONS  IN 
WALES.  A  court  formerly  held  in  Wales; 
abolished  by  11  Geo.  IV.  and  1  Will.  IV.  c. 
70,  and  the  Welsh  judicature  incorporated 
with  that  of  England.  3  Bla.  Com.  77;  3 
Steph.  Com.  317,  n. 

COURT  OF  HIGH  COMMISSION.  An  ec- 
clesiastical court  created  under  the  Act  of 
Supremacy,  1  Eliz.  c.  1,  §  8  (1559).  Its  du- 
ties were  to  enforce  the  Acts  of  Supremacy 
and  Uniformity  and  to  deal  generally  with 
ecclesiastical  offences.  It  entertained  all  im- 
portant causes  of  doctrine  and  ritual ;  also 
matters  of  immorality  and  misconduct  of  the 
clergy  and  laity  and  of  recusancy  and  non- 
conformity. It  had  concurrent  jurisdiction 
with  the  ordinary  ecclesiastical  court.  It 
fell  in  1640  and  was  ,not  revived  at  the  Res- 
toration ;   1  Holdsw.  Hist.  E.  L.  375. 

COURT-HOUSE.  The  building  occupied 
for  the  purposes  of  a  court  of  record.  The 
term  may  be  used  of  a  place  temporarily  oc- 
cupied for  the  sessions  of  a  court,  though 
not  the  regular  court-house ;  as,  a  church 
used  when  the  court-house  was  occupied  by 
troops ;  Kane  v.  McCown,  55  Mo.  181 ;  and 
see  Hambright  v.  Brockman,  59  Mo.  52 ;  and 
where  the  court-house  was  burned  down, 
sales  required  by  law  to  be  at  its  door  must 
be  held  at  the  ruins  of  the  door ;  Waller  v. 
Arnold,  71  111.  350. 

COURT,  HUNDRED.  See  Hundred 
Court. 

COURT  OF  HUSTINGS.  The  county  court 
in  the  city  of  London. 

It  is  held  nominally  before  the  lord  mayor, 
recorder,  and  aldermen ;  but  the  recorder  is 
practically  the  sole  judge.  It  has  an  appel- 
late jurisdiction  of  causes  in  the  sheriff's 
court  of  London.  A  writ  of  error  lies  from 
the  decisions  of  this  court  to  certain  com- 
missioners (usually  five  of  the  judges  of  the 


superior  courts  of  law),  from  whose  judg- 
ment a  writ  of  error  lies  to  the  house  of 
lords.  No  merely  personal  actions  can  be 
brought  in  this  court.  See  3  Bla.  Com.  80, 
n. ;  3  Steph.  Com.  293,  n. ;  Madox,  Hist. 
Exch.  c.  20;  Co.  2d  Inst.  327.  Since  the  abo- 
lition of  all  real  and  mixed  actions  except 
ejectment,  the  jurisdiction  of  this  court  has 
fallen  into  comparative  desuetude.  Pulling 
on  Cust.  Lond. 

In  American  Law.  A  local  court  in  some 
parts  of  Virginia.  Smith  v.  Commonwealth, 
6  Gratt.  696. 

COURT  FOR  THE  TRIAL  OF  IMPEACH- 
MENTS. A  tribunal  for  determining  the 
guilt  or  innocence  of  any  person  impeached. 
In  England,  the  House  of  Lords,  and  in  this 
country,  generally,  the  more  select  branch  of 
the  legislative  assembly,  constitutes  a  court 
for  the  trial  of  impeachments.  A  peer  could 
always  be  impeached  for  any  crime,  and  al- 
though Blackstone  lays  it  down  that  a  com- 
moner cannot  be  impeached  for  a  capital  of- 
fence, but  only  for  a  high  misdemeanor,  the 
opinion  seems  to  have  prevailed  that  he 
could  be  impeached  for  high  treason ;  4  Bla. 
Com.  260;  4  Steph.  Com.  299;  May,  Pari. 
Prac.   c.  23. 

The  Commons  might  impeach  any  person 
before  the  House  of  Lords.  The  practice  fell 
into  abeyance  between  1459  and  1621,  and 
its  place  was  taken  by  Acts  of  Attainder. 
There  has  been  no  instance  of  impeachment 
since  1805.    1  Holdsw.  Hist.  E.  L.  190. 

COURT  FOR  THE  RELIEF  OF  INSOL- 
VENT DEBTORS  IN  ENGLAND.  A  court 
in  London  only,  which  received  the  petitions 
of  insolvent  debtors  and  decided  upon  the 
question  of  granting  a  discharge. 

It  was  held  by  the  commissioners  of  bank- 
ruptcy ;  and  its  decisions,  if  in  favor  of  a 
discharge,  were  not  reversible  by  any  other 
tribunal.  See  3  Steph.  Com.  426;  4  id.  287. 
Abolished  by  the  Bankruptcy  Act  of  1S61. 

COURT  OF  INQUIRY.  In  English  Law. 
A  court  sometimes  appointed  by  the  crown 
to  ascertain  the  propriety  of  resorting  to 
ulterior  proceedings  against  a  party  charged 
before  a  court-martial.  See  2  Steph.  Com. 
590;  1  Coler.  Bla.  Com.  418,  n. ;  2  Brod.  & 
B.  130.  Also  a  court  for  hearing  the  com 
plaints  of  private  soldiers.  Moz.  &  W.  Diet. ; 
Simmons,  Cts.  Mart.  §  341. 

In  American  Law.  A  court  constituted  by 
authority  of  the  articles  of  war,  invested 
with  the  power  to  examine  into  the  nature  of 
any  transaction,  accusation,  or  imputation 
against  any  officer  or  soldier. 

They  are  not  strictly  courts,  having  no 
power  to  try  and  determine  guilt  or  inno- 
cence. They  are  rather  agencies  created  by 
statute  to  investigate  facts  and  report  there- 
on. They  cannot  compel  the  attendance  of 
witnesses  nor  require  them  to  testify ;  Davis, 
Mil.  Law  220.    They  may  be  convened  by  any 


COURT  OF  INQUIRY 


707 


COURT  OF  KING'S  BENCH 


military  commander  who  has  power  to  con- 
vene a  court-martial  to  try  the  charge  which 
is  to  be  inquired  into.  The  President  may 
convene  a  court  of  inquiry  at  any  time;  oth- 
erwise they  can  be  convened  only  on  the  ap- 
plication of  the  officer  or  soldier  whose  con- 
duct is  in  question.  They  are  composed  of 
from  one  to  three  commissioned  officers,  with 
a  recorder.  They  give  no  opinions  unless  re- 
quired to  do  so.  119th  Art  of  War.  Their 
proceedings  are  admitted  in  evidence  by  a 
court-martial,  in  cases  not  capital  nor  ex- 
tending to  the  dismissal  of  an  officer,  if  the 
oral  testimony  cannot  be  obtained ;  121st 
Art.  of  War. 

A  naval  court  of  inquiry  may  be  ordered 
by  the  President,  Secretary  of  the  Navy,  or 
commander  of  a  fleet  or  squadron,  consisting 
of  not  more  than  three  commissioned  officers. 
They  "have  power  to  summon  witnesses,  etc., 
in  the  same  manner  as  courts-martial,  but 
they  shall  only  state  facts  and  not  give  their 
opinion  unless  expressly  required  so  to  do" 
in  the  convening  order.  The  person  under 
inquiry,  or  his  attorney,  have  a  right  to 
cross-examine  witnesses  (R.  S.  §  1G24).  The 
Act  of  February  1G,  190'.),  provides  for  sub- 
poenas to  witnesses.  See  Coubts-Mabtial 
(naval). 

COURTS  OF  IRELAND.  The  Court  of 
Appeal  consists  of  the  Lord  Chancellor,  the 
Lord  Chief  Justice,  fhe  Master  of  the  Rolls, 
the  Lord  Chief  Baron  of  the  Exchequer  and 
two  Lords  Justices  of  Appeal. 

The  High  Court  of  Justice.  The  Chancery 
Division  consists  of  the  Lord  Chancellor,  the 
Master  of  the  Rolls,  a  Judge  and  a  Land 
Judge.  The  King's  Bench  Division  consists 
of  the  Lord  Chief  Justice,  the  Lord  Chief 
Baron,  and  five  judges,  one  of  which  is  a 
probate  judge  and  another  a  judge  in  ad- 
miralty and  bankruptcy  cases. 

There  are  33  County  Court  judges  and 
chairmen  of  Quarter  Sessions  in  the  differ- 
ent counties. 

COURT  OF  JUSTICE  SEAT.  See  Coubt  of 
the  Chief  Justice  in  Eyke. 


COURT  OF   JUSTICIARY. 

Scotland. 


See  Coubts  of 


COURT  OF  KING'S  BENCH.  The  su- 
preme court  of  common  law  in  the  kingdom, 
now  merged  in  the  High  Court  of  Justice. 
See  Coubts  of  England. 

It  was  one  of  the  successors  of  the  curia  regis 
and  received  Its  name,  it  is  said,  because  the  king 
formerly  sat  In  it  in  person,  the  style  of  the  court 
being  coram  rege  ipso  (before  the  king  himself). 
During  the  reign  of  a  queen  it  was  called  the 
Queen's  Bench,  and  during  Cromwell's  Protectorate 
it  was  called  the  Upper  Bench.  Its  Jurisdiction 
was  originally  confined  to  the  correction  of  crimes 
and  misdemeanors  which  amounted  to  a  breach  of 
the  peace,  including  those  trespasses  which  were 
committed  with  force  (vi  et  armis),  and  in  the  com- 
mission of  which  there  was,  therefore,  a  breach  of 
the  peace.  By  aid  of  a  fiction  of  the  law  (see  Court 
or  the  Steward  and  tub  Marshal  ;  Bill  of  Mid- 
dlesex), the  aumber  of  actions  which  might  be  al- 


leged to  be  so  committed  was  gradually  Increased, 
until  the  jurisdiction  ext  nded  to  all  actions  on  the 
case,  of  debt  upon  statutes  or  where  fraud  was  al- 
leged, and,  finally,  included  all  personal  actions 
whatever,  and  the  a 

sit;    Arrest;    Attachment.     It  was  from  its  con- 
stitution, ambulatory  and  liable  to  follow  the  I 
person,   all   process    in   this  court  being 
"coram    rege    ubicunque    turn    fuerimus    in    A 
(wherever  in  England  we  tthe  sovereign]  shall  then 
be i.     It  was  for  centuries  held  at   '. 
early  as  Henry  IV.'s  reign  the  king  could  not  pro- 
nounce Judgment. 

It  consisted    of   a   lord    chief   justice   and 
four  puisne  or  associate  justices,  who 
by  virtue  of  their  office,  conservators  of  the 
peace  and  supreme  coroners  of  the  land. 

It  had  original  criminal  jurisdiction 
transferred  jurisdiction  from  Inferior  1 1 
by  Certiorari,  where  a  fair  trial  could  not  be 
had  in  the  inferior  court  or  some  difficult 
question  of  law  was  likely  to  arise;  also  by 
writ  oil  error  and  motion  for  a  new  trial. 
Its  civil  jurisdiction  was  original  and  in  er- 
ror. The  former  did  not  exist  originally  in 
ordinary  civil  suits  between  man  and  man, 
but  was  attained  by  a  fiction  that  the  de- 
fendant was  in  the  custody  of  the  marshal 
(supra).  The  jurisdiction  in  error  was  by 
audita  querela,  motion  for  a  new  trial,  and  in 
t  of  certain  errors  in  the  process  of  the 
court.  Jurisdiction  in  error  belonged  al 
exclusively  to  the  King's  Bench.  It  had  su- 
perintendence over  the  proper  observa 
the  law  by  officials  and  others  by  means  of 
certain  "prerogative  writs":  Certiorari,  pro- 
hibition, mandamus,  quo  warranto,  habeas 
corpus,  de  homini  replegiando,  mainprize,  the 
writ  de  odio  et  atia  (which  last  three  were 
superseded  by  habeas  corpus);  1  Iloldsw. 
Hist.  E.  L.  78. 

COURT  LANDS.    See  Demesne. 

COURT  LEET.  In  English  Law.  A  court 
of  record  for  a  particular  huudred,  lordship, 
or  manor,  holden  therein  before  the  steward 
of  the  leet,  for  the  punishment  of  petty  of- 
fences and  the  preservation  of  the  peace. 
Kitchin,  Courts  Leet 

The  Sheriffs  Tourn  (q.  v.)  was  the  Grand 
Court  Leet  for  the  county. 

The  privilege  of  holding  them  was  a  franchise 
subsisting  in  the  lord  of  the  manor  by  prescription 
or  charter,  and  might  be  lost  by  diruse.  The  court 
leet  had  a  limited  criminal  Jurisdiction.  For  some 
offences    of    a    lower    order,    punishment    by    fines. 

Extents,  or  other  means  might  be  in 
For  the  higher  crimes,  they  either  found  indict- 
ments which  were  to  be  tried  by  the  higher  courts, 
or  made  presentment  of  the  case  to  such  higher 
tribunals.  They  also  took  view  of  frank  : 
Among  other  duties  for  the  keeping  of  the  peace, 
the  court  assisted  in  the  election  of,  or,  In  some 
cases,  elected  certain  municipal  officers  In  the  bor- 
ough to  which  the  leet  was  appended.  A  court  leet 
Is  still  held  in  many  manors  and  a  few  boroughs 
In   England  ;    Odgers,  C.  L.  965. 

Powell.  Courts  Leet;  1  Reeve,  Hist.  Eng. 
Law;  Inderwick,  King's  Peace  11;  1  Poll.  <£ 
Maitl.  568;    4  Steph.  Com.  306. 

It  was  but  a  specially  important  moot  of 
the  Ida,  the  fraction  of  the  huudred  or  wap- 


COURT  LEET 


708 


COURT-MARTIAL 


entake,  alienated  into  private  hands.  Vino- 
gradoff,  Engl.  Soc.  in  Eleventh  Cent.  214. 

COURT  OF  THE  LORD  HIGH  ADMIR- 
AL. In  the  earlier  part  of  the  14th  century, 
the  Admiral  possessed  a  disciplinary  juris- 
diction over  his  fleet.  After  1340  it  is  reason- 
able to  suppose  that  the  Admiral  could  hold 
an  independent  court  and  administer  justice 
in  piracy  and  other  maritime  cases.  In  1353 
a  case  was  had  before  the  Admiral  and  the 
Council.  Four  years  later  there  is  the  ear- 
liest distinct  reference  to  a  Court  of  Ad- 
miralty. There  were  at  first  several  ad- 
mirals and  several  courts.  From  .the  early 
15th  century  there  was  one  Lord  High  Ad- 
miral and  one  Court  of  Admiralty.  1  Holdsw. 
Hist.  E.  L.  313.  The  term  admiral  appears 
to  have  been  first  used  in  1300.    id. 

COURT  OF  THE  LORD  HIGH  STEWARD. 

If  the  House  of  Lords  is  not  sitting,  'cases  of 
impeachment  and  temporal  peers  and  peer- 
esses accused  of  high  treason,  felony  or  mis- 
prision are  tried  in  the  Court  of  the  Lord 
High  Steward.  He  is  appointed  for  the  oc- 
casion, and  is  usually  the  Lord  Chancellor. 
All  peers  who  have  a  right  to  sit  and  vote 
in  Parliament  must  be  summoned.  They  are 
the  sole  judges  of  fact,  and  the  majority, 
which  must  consist  of  twelve  at  least,  de- 
cides. The  Lord  High  Steward  has  a  vote, 
and  is  judge  of  all  matters  of  law. 

House  op  Lords;  Courts  of  England. 
Trials  of  peers  before  it  began  about  1500. 
See  Harcourt,  The  Steward  and  Trial  of 
Peers. 

COURT  OF  THE  LORD  HIGH  STEWARD 
OF   THE    UNIVERSITIES.     In    English    Law. 

A  court  constituted  for  the  trial  of  scholars 
or  privileged  persons  connected  with  the  uni- 
versity of  Oxford  or  Cambridge  who  are  in- 
dicted for  treason,  felony,  or  mayhem. 

The  court  consists  of  the  lord  high  stew- 
ard, or  his  deputy  nominated  by  the  chan- 
cellor of  the  university  and  approved  of  by 
the  lord  high  chancellor  of  England.  The 
steward  issues  a  precept  to  the  sheriff,  who 
returns  a  panel  of  eighteen  freeholders,  and 
another  to  the  university  beadle,  who  return 
a  panel  of  eighteen  matriculated  laymen. 
From  these  panels  a  jury  de  medietate  is  se- 
lected, before  whom  the  cause  is  tried.  An 
Indictment  must  first  have  been  found  by  a 
grand  jury,  and  cognizance  claimed  thereof 
at  the  first  day.  3  Bla.  Com.  83 ;  4  id.  211 ; 
1  Steph.  Com.  67 ;  3  id.  341 ;  4  id.  261.  See 
Chancellors'  Courts  of  the  Universities. 

COURT  OF  MAGISTRATES  AND  FREE- 
HOLDERS. A  court  in  South  Carolina  for 
the  trial  of  slaves  and  free  persons  of  color 
for  criminal  offences.     Now  abolished. 

COURT     OF    THE     MARSHALSEA.      See 

Court  of  the  Steward  and  the  Marshal. 

COURT-MARTIAL.  A  military  or  naval 
tribunal,  which  has  jurisdiction  of  offences 


against  the  laws  of  the  service,  military  or 
naval,  in  which  the  offender  is  engaged. 

Courts-martial  have  some  of  the  functions  of  the 
Court  of  Chivalry,  which  title  see.  They  exist  and 
have  their  jurisdiction  by  virtue  of  the  military 
law,  the  court  being  constituted  and  empowered  to 
act  in  each  instance  by  authority  from  a  command- 
ing officer.  The  general  principles  applicable  to 
courts-martial  in  the  army  and  navy  are  essentially 
the  same.  Courts-martial  for  the  regulation  of  the 
militia  are  held  in  the  various  states  under  local 
statutes,  which  resemble  in  their  main  features  those 
provided  for  in  the  army  of  the  United  States;  and 
when  in  actual  service  the  militia,  like  the  regular 
troops,  are  subject  to  courts-martial,  of  which  a 
majority  of  members  must  be  militia  officers  (Act 
of  May  27,  1908).  Where  all  the  members  of  a 
court-martial  convened  to  try  a  volunteer  officer 
are  officers  of  the  regular  army,  the  court  is  ille- 
gal; McClaughry  v.  Deming,  186  U.  S.  49,  22  Sup. 
Ct.  786,  46  L.  Ed.  1049  (considering  at  length  the  his- 
torical relations  of  volunteers  to  the  regular  army 
and  approving  Deming  v.  McClaughry,  113  Fed.  639, 
51  C.   C.  A.  349). 

Army  Courts-Martial. — By  Act  of  March 
2,  1913,  it  is  provided  that  after  July  1,  1913, 
courts-martial  shall  be  of  three  kinds:  1. 
General  Courts-Martial  (consisting  of  any 
number  of  officers  from  5  to  13  inclusive)  may 
try  any  person,  subject  to  military  offence, 
punishable  by  the  Articles  of  War,  and  any 
other  person  who  by  statute  or  the  law  of 
war  is  subject  to  trial  by  military  tribunal. 

Special  Courts-Martial  (consisting  of  any 
number  of  officers  from  3  to  5  inclusive)  shall 
have  power  to  try  any  person  subject  to  mili- 
tary law,  except  an  officer,  for  any  crime  or 
offence  not  capital,  punishable  by  the  Arti- 
cles of  War,  but  the  President  may  make  reg- 
ulations excepting  from  their  jurisdiction 
any  class  or  classes  of  persons.  They  have 
power  to  adjudge  punishment,  not  to  exceed 
confinement  at  hard  labor  for  6  months  or 
forfeiture  of  pay,  or  both,  with  reduction  to 
the  ranks  of  non-commissioned  officers  and 
reduction  in  classification  of  first-class  pri- 
vates. 

Summary  Courts-Martial  (one  officer)  may 
try  any  soldier,  except  one  having  a  certifi- 
cate of  eligibility  to  promotion,  for  any  crime 
or  offence  not  capital,  punishable  by  the  Ar- 
ticles of  War.  But  non-commissioned  of- 
ficers shall  not,  if  they  object,  be  tried  with- 
out the  authority  of  officers  competent  to 
bring  them  to  trial  before  a  General  Court- 
Martial.  They  may  adjudge  punishments 
not  to  exceed  confinement  at  hard  labor  for 
3  months  *>r  forfeiture  of  3  months  pay,  or 
both,  with  reduction  to  the  ranks  as  afore- 
said; but  when  the  Summary  Court-Martial 
is  also  the  commanding  officer,  confinement 
or  forfeiture  of  pay  for  more  than  one  month, 
must  be  approved  by  superior  authority. 

Art.  74  provides  that  officers  who  may  ap- 
point a  court-martial  shall  be  competent  te 
appoint  a  judge-advocate  for  the  same.  He 
withdraws  when  the  court  sits  in  closed  ses- 
sion. His  advice  must  be  given  in  open 
court.     U.  S.  R.  S.  §  1342. 

The  jurisdiction  of  such  courts  is  limited 


COURT-MARTIAL 


709 


COURT-MARTIAL 


to  offences  against  the  military  law  (which 
title  see)  committed  by  individuals  in  the 
service;  Smith  v.  Shaw,  12  Johns.  (N.  Y.) 
257 ;  which  latter  term  includes  sutlers,  re- 
tainers  to  the  camp,  and  persons  serving  with 
the  army  In  the  field;  GOth  Art.  of  War;  and 
persons  employed  in  a  guast-inilitary  capacity 
with  its  troops  in  time  of  war  and  on  its 
theatre;    Davis,  Mil.  L.  478. 

While  a  district  is  under  martial  law,  by 
proclamation  of  the  executive,  as  for  rebel- 
lion, they  may  take  jurisdiction  of  offences 
which  are  cognizable  by  the  civil  courts  only 
in  time  of  peace;  11  Op.  Att-Gen.  157.  This 
rule  is  said  by  American  writers  to  apply 
where  the  army  passes  Into  a  district  where 
there  are  no  civil  courts  in  existence;  Benet, 
Mil.  Law  15. 

Military  commissions  organized  during  the 
Civil  War,  in  a  state  not  invaded  and  not 
engaged  in  rebellion,  in  which  the  federal 
courts  were  not  obstructed  in  the  exercise  of 
their  judicial  functions,  had  no  jurisdiction 
to  convict,  for  a  criminal  offence,  a  citizen, 
who  was  neither  a  resident  of  a  rebellious 
state,  nor  a  prisoner  of  war,  nor  a  person  in 
the  military  or  naval  service;  and  congress 
could  not  invest  them  with  any  such  power; 
Ex  parte  Milligan,  4  Wall.  (U.  S.)  2,  18  L. 
Ed.  2S1.  Cases  arising  in  the  land  and  naval 
forces,  or  in  the  militia  in  time  of  war  or 
public  danger,  are  excepted  from  the  right  of 
trial  by  jury ;    ibid.  « 

The  court  must  appear  from  its  record  to 
have  acted  within  its  jurisdiction;  Fox  v. 
Wood,  1  Rawle  (Pa.)  143;  Brooks  v.  Adams, 
11  Pick.  (Mass.)  442;  Mills  v.  Martin,  19 
Johns.  (N.  Y.)  7;  Mathews  v.  Bowman,  25 
Me.  1GS;  Ex  parte  Biggers,  1  McMulL  (S.  C.) 
69;  Mitchell  v.  Harmony,  13  How.  (TJ.  S.) 
134,  14  L.  Ed.  75.  A  court-martial  unlawful- 
ly convened  is  not  a  de  facto  court;  Mo- 
daughry  v.  Deming,  186  U.  S.  40,  22  Sup. 
Ct.  780,  46  L.  Ed.  1049.  A  want  of  jurisdic- 
tion either  of  the  person,  Meade  v.  Deputy 
Marshall.  1  Brock.  324,  Fed.  Cas.  No.  9,372, 
or  of  the  offence,  will  render  the  members 
of  the  court  and  officers  executing  its  sen- 
tence trespassers;  Wise  v.  Withers.  3  Cra. 
(U.  S.)  331,  2  L.  Ed.  457.  So,  too,  the  mem- 
bers are  liable  to  a  civil  action  if  they  ad- 
mit or  reject  evidence  contrary  to  the  rules 
of  the  common  law  ;  2  Kent  10 ;  V.  Kennedy, 
Courts-Mart.  13;  or  award  excessive  or  il- 
legal punishment;  V.  Kennedy,  Courts-Mart. 
13.  The  President  may  return  the  proceed- 
ings with  a  recommendation  that  a  more 
severe  sentence  be  imposed ;  Swaim  v.  U.  S., 
165  U.  S.  563,  17  Sup.  Ct.  448," 41  L.  Ed.  823. 

The  decision  and  sentence  of  a  court-mar- 
tial, having  jurisdiction  of  the  person  accus- 
ed and  of  the  offence  charged,  and  acting 
within  the  scope  of  its  lawful  powers,  cannot 
be  reviewed  or  set  aside  by  writ  of  habeas 
corpus;  Johnson  v.  Sayre,  158  U.  S.  109,  15 
Sup.  Ct.  773,  39  L.  Ed.  914.  But  by  habeas 
corpus,  the  legality  of  the  action  of  a  court- 


martial — whether  it  was  legally  constituted 
and  had  jurisdiction — may  be  enquired  into; 
In  re  Reed,  100  25  L.  Ed. 

"Courts-martial  are  lawful  tribunals,  with 
authority  to  determine  finally  any 
which  they  have  jurisdiction,  and  their  pro- 
ceedings,   when    confirmed    a  !.    are 
not  open  to  review  by  the  civil  trlbuna 
cept  for  the  purpose  of  ascertain^  e 
the  military  court  had   jurisdiction   of  the 
person    and    subject    matter,    and    wl  • 
though  having  such  jurisdiction,  it  had  ex- 
ceeded its  powers  in  the  sentence 
ed."     Carter   v.    Roberts,   177    1. 
Sup.  Ct.  713,  44  L.  Ed.  SOI.     Quoted  with  ap- 
proval  in   Carter  v.   McClaughry,   183   D.   B. 
365,  -'2  Sup.  Ct.  181,  46  I,.  Ed.  236;    Grafton 
v.  r.  s..  2uo  U.  S.  33::,  347,  '-i  Sup.  <'t.  7 
L.  Ed.  1084. 

The  presumptions  in  favor  of  official  ac- 
tion preclude  attack  on  the  sentences  of 
courts-martial,  though  they  are  courts  of  >pe- 
cial  or  limited  jurisdiction;  in  re  Chapman, 
166  1'.  S.  670,  17  Sup.  Ct.  077,  41  L.  Ed.  DL54, 
disapproving  Runkle  v.  U.  S.,  122  D.  E 
7  Sup.  Ct.  1141,  30  L.  Ed.  1107.  They  are 
entitled  to  the  same  finality  as  to  the 
involved  as  the  judgment  of  a  civil  court; 
Grafton  v.  U.  S.,  200  U.  S.  3! 
749,  51  L.  Ed.  1084.  Questions  of  procedure, 
the  improper  admission  of  evidence,  and  the 
like,  are  not  grounds  of  collateral  attack  on 
the  judgment  of  a  court-martial ;  Swaim  v. 
U.  S.,  105  U.  S.  553,  17  Sup.  Ct.  44 8,  41  I 
823.  Dnder  Art.  02.  general  courts-martial 
may  take  cognizance  of  all  crimes  not  capital 
committed  by  an  officer  or  soldier  in  the  ter- 
ritory within  which  he  is  serving;  this  is 
concurrent  with  civil  courts;  if  the  former 
first  obtains  jurisdiction,  its  judgment  can  be 
disregarded  by  the  civil  courts  only  for  rea- 
sons affecting  its  jurisdiction;  Grafton  v. 
United  States,  200  U.  S.  333,  27  Sup.  Ct  749, 
51  L.  Ed.  1084. 

If  the  offence  is  a  crime  against  society, 
the  punishment  provided  by  law  may  be  im- 
posed and  also  a  dishonorable  discharg 
re  Mason.  105  U.  S.  090,  26  L.  Ed  1213. 

Acquittal  by  a  court-martial  does  not  bar  a 
ution  by  the  civil  authorities:  In  re 
Fair,  100  Fed.  110.  Acquittal  in  a  state 
court  on  a  charge  of  murder  does  not  bar  a 
trial  by  court-martial  for  "conduct  to  the 
prejudice  of  good  order  and  military  discip- 
line," though  based  on  the  same  act;  In  re 
Stubbs,  1.".::  Fed.  1012. 

The    President,  by   virtue  of  his  oil 
Commander-in-Chief,   may  appoint 
court-martial:    Swaim  v.  U.  S..  165  U.  S 
17  Sup.  Ct.  448,  41  I..  Ed.  823. 

The  presiding  officer  has  no  command  over 
the  other  members;  they  are  all  on  an  equal- 
ity;  Dig.  J.  Adv.  Gen.  009. 

No  officer  shall,  when  it  can  be  avoided,  be 
tried  by  officers  inferior  to  him  in  rank.  79th 
Art.  Whether  it  "can  be  avoided"  is  for  the 
decision  of  the  convening  officer;    Swaim  v. 


COURT-MARTIAL 


710 


COURT-MARTIAL 


U.  S.,  105  U.  S.  553,  17  Sup.  Ct.  44S,  41  L.  Ed. 
S23. 

Consent  does  not  give  jurisdiction  to  a 
court  of  regular  officers  to  try  officers  or 
soldiers  of  other  forces;  McClaughry  v. 
Deming,  186  U.  S.  49,  22  Slip.  Ct.  7SG,  4G  L. 
Ed.  1049. 

Retired  army  officers  are  subject  to  trial 
by  court-martial ;  Murphy  v.  U.  S.,  38  Ct. 
01.  511 ;  Clossou  v.  U.  S.,  7  App.  D.  C.  460 ; 
so  is  a  minor  who  bas  enlisted  without  con- 
sent of  his  parents  or  guardians  and  has  de- 
serted; Solomon  v.  Davenport,  87  Fed.  318, 
30  C.  C.  A.  664.  When  jurisdiction  has  at- 
tached, an  enlisted  man  may  be  tried  and 
sentenced  after  his  enlistment  has  expired; 
Barrett  v.  Hopkins,  7  Fed.  312 ;  and  his  sen- 
tence carried  out ;  Coleman  v.  Tennessee,  97 
U.  S,  509,  24  L.  Ed.  HIS;  so  of  an  officer 
after  he  has  ceased  to  be  such;  Carter  v. 
McClaughry,  183  U.  S.  365,  22  Sup.  Ct.  181, 
46  L.  Ed.  236. 

Courts-martial  should  in  general  follow  the 
rules  of  evidence  of  the  civil  courts  and  es- 
pecially of  the  United  States  criminal 
courts;  Davis,  Mil.  L.  251;  Town  of  Le- 
banon v.  Heath,  47  N.  H.  359;  2  Op.  A.- 
G.  343.  Perhaps  more  latitude  is  allowed; 
Davis,  Mil.  L.  251:  In  England  (Act  of  1881) 
the  ordinary  rules  of  evidence  must  be  ap- 
plied. The  accused  is  not'  entitled  to  counsel 
but  the  privilege  is  usually  granted ;  Davis, 
Mil.  L.  38. 

Where  a  prisoner  on  trial  for  a  trivial  of- 
fence is  absent  for  a  day,  it  does  not  vitiate 
the  proceedings ;  Weirman  v.  U.  S.,  36  Ct.  CI. 
236.  Where  the  offence  is  one  punishable  by 
tbe  civil  authorities,  a  court-martial  may  in- 
flict the  same  punishment  and  add  a  dishon- 
orable discharge ;  Ex  parte  Mason,  105  U.  S. 
696,  26  L.  Ed.  1213,  cited  in  Carter  v.  Mc- 
Claughry, 183  U.  S.  382,  22  Sup.  Ct.  181,  46 
L.  Ed.  236. 

A  death  sentence  requires  the  concurrence 
of  two-thirds  of  the  members ;   Art.  96. 

Naval  Courts -Martial. — Summary  courts- 
martial  (R.  S.  §  1624,  Act  of  March  2,  18S5) 
may  be  ordered  upon  petty  officers  and  per- 
sons of  inferior  ratings,  by  the  commander 
of  any  vessel,  or  by  tbe  commandant  of  any 
navy-yard,  naval  station  or  marine  barracks, 
for  the  trial  of  offences  which  such  officer 
may  deem  deserving  of  greater  punishment 
than  such  officer  is  authorized  to  inflict,  but 
not  sufficient  to  require  trial  by  general 
court-martial.  They  consist  of  3  officers  not 
below  the  rank  of  ensign,  as  members,  and 
a  recorder. 

The  punishments  which  they  can  inflict  are 
specified  in  the  act.  No  sentence  shall  be 
carried  into  execution  until  the  proceedings 
have  been  approved  by  the  convening  officer 
and  by  the  commander-in-chief,  or,  in  his 
absence,  by  the  senior  officer  present,  and,  if 
it  involves  loss  of  pay,  until  approved  by 
the  Secretary  of  the  Navy.  The  convening 
officer  may  remit  in  part  or  altogether,  but 


not  commute,  the  sentence.  Any  punishment 
which  a  summary  court-martial  may  inflict 
may  also  be  inflicted  by  a  general  court-mar- 
tial. 

No  officer  shall  be  dismissed  from  the  serv- 
ice except  by  order  of  the  President  or  by 
sentence  of  a  general  court-martial,  or,  in 
time  of  peace,  except  in  pursuance  of  a  sen- 
tence of  a  general  court-martial  or  in  miti- 
gation thereof. 

A  general  court-martial  shall  consist  of  not 
more  than  13  nor  less  than  5  commissioned 
officers,  and  as  many  officers,  not  exceeding 
13,  as  can  be  convened  without  injury  to  the 
service  (which  is  for  the  convening  officer  to 
decide);  Bishop  v.  U.  S.,  197  U.  S.  334,  25 
Sup.  Ct.  440,  49  L.  Ed.  7S0;  but  in  no  case, 
where  it  can  be  avoided  without  injury  to 
the  service,  shall  more  than  one-half,  exclu- 
sive of  the  President,  be  junior  to  the  of- 
ficer to  be  tried. 

When  proceedings  have  been  commenced, 
they  shall  not  be  suspended  or  delayed  on 
account  of  the  absence  of  any  of  the  mem- 
bers, provided  five  or  more  are  assembled. 
But  where  a  member  is  absent  for  legal 
cause,  the  witnesses  examined  during  his  ab- 
sence must  be  recalled  and  their  testimony 
read  to  him  and  acknowledged  by  them  to  be 
correct,  and  they  must  be  subject  to  such 
further  examination  as  he  may  require. 
Without  compliance  with  this  rule  and  an 
entry  thereon  on  the  record,  such  member 
shall  not  sit  again  in  that  case. 

Two-thirds  must  concur  in  a  death  sen- 
tence. All  other  sentences  may  be  determin- 
ed by  a  majority. 

A  convening  officer  may  order  a  court-mar- 
tial to  reconsider  its  proceedings  and  sen- 
tence before  it  has  dissolved ;  In  re  Reed,  100 
U.  S.  13,  25  L.  Ed.  53S;  where  it  has  been 
adjourned  by  the  Secretary  of  the  Navy  till 
further  orders,  he  may  reconvene  it  to  re- 
consider the  proceedings  ;  Smith  v.  Whitney, 
116  U.  S.  167,  6  Sup.  Ct.  570,  29  L.  Ed.  601. 

Where  the  sentence  of  an  officer  is  dis- 
missal from  the  navy  (in  time  of  peace)  it 
is  subject  to  the  President's  confirmation,  dis- 
approval or  order.  His  action  thereon  is  ju- 
dicial ;  Bishop  v.  U.  S.,  197  U.  S.  334,  25  Sup. 
Ct.  440,  49  L.  Ed.  7S0. 

Deck  Courts  (Act  of  February  16,  1909)  are 
courts  for  the  trial  of  enlisted  men  in  the 
Navy  and  Marine  Corps  for  minor  offences 
formerly  triable  by  summary  court-martial 
and  may  be  ordered  by  the  commanding  of- 
ficer of  a  naval  vessel,  by  the  commandant 
of  a  navy-yard  or  station,  by  a  commanding 
officer  of  marines  or  by  a  higher  naval  au- 
thority. They  consist  of  one  commissioned 
officer  only,  who  shall  hear  and  determine 
cases  and  impose  punishment,  but  not  dis- 
charge from  the  service  or  impose  confine- 
ment or  forfeiture  of  pay  for  longer  than  20 
days.  The  officer  within  whose  command 
the  court  sits  may  "remit  or  mitigate,  but 
not    commute,    any    sentence;     no    sentence 


COURT-M  A  RTI AL 


711 


COURT  OF  NISI   PRIUS 


shall  be  carried  into  effect  until  it  shall  have 
been  so  approved  or  mitigated,  and  such  of- 
ficer shall  have  power  to  remit  any  punish- 
ment." No  person  who  objects  thereto  shall 
be  tried  before  a  deck  court ;  in  case  of  ob- 
jection, trial  shall  be  by  summary,  or  by  gen- 
eral, court-martial,  as  may  be  appropriate. 

The  Secretary  of  the  Navy  may  set  aside 
the  proceedings  or  remit  or  mitigate  the  sen- 
tence imposed  by  any  court-martial. 

General  courts-martial  may  be  convened 
by  the  President,  the  Secretary  of  the  Navy. 
by  the  commander-in-chief  of  a  fleet,  or  squad- 
ron, and  by  the  commanding  officer  of  any 
naval  station  beyond  the  continental  limits 
of  the  United  States. 

The  use  of  irons  as  a  form  of  punishment 
in  the  Navy  is  abolished,  except  for  the  pur- 
pose of  safe  custody,  or  when  part  uf  a  sen- 
tence as  imposed  by  a  general  court-martial. 
Act  of  .May  11,  1908. 

A  general  court-martial  or  court  of  in- 
quiry of  the  Navy  may  issue  like  process  to 
witnesses  which  United  States  courts  of  crim- 
inal jurisdiction  within  the  state,  etc.,  where 
the  court  is  ordered  to  sit,  may  lawfully  is- 
sue. Any  person  duly  subpoenaed  as  a  wit- 
ness, who  wilfully  neglects  or  refuses  to  ap- 
pear or  qualify  or  to  testify  or  to  produce 
documentary  evidence,  is  guilty  of  a  misde- 
meanor, excepting  persons  residing  beyond 
the  state,  etc.,  where  the  court  is  held.  No 
witness  can  be  compelled  to  incriminate  him- 
self. Depositions  may  be  taken  in  certain 
cases. 

The  sentences  of  summary  courts-martial 
may  be  carried  into  effect  upon  the  approval 
of  the  senior  officer  present,  and  those  of 
deck  courts  upon  the  approval  of  the  conven- 
ing authority  or  his  successor  in  office.  Act 
of  February  16,  1909. 

The  ordinary  rules  of  evidence  are  applied 
as  far  as  justice  requires  and  are  to  be  de- 
parted from  in  cases  of  necessity  created  by 
the  nature  of  the  service,  the  constitution  of 
the  court,  and  its  course  of  procedure.  The 
accused  is  entitled  to  counsel,  but  he  may 
only  address  the  court  by  permission,  and 
only  in  case  a  stenographer  is  employed. 

No  federal  tribunal  has  jurisdiction  over  a 
naval  court-martial  nor  can  it  interfere  in 
the  performance  of  its  duties;  Wales  v.  Whit- 
ney, 114  U.  S.  564,  5  Sup.  Ct.  1050,  29  L.  Ed. 
277 ;  Swaim  v.  U.  S.,  165  U.  S.  553,  17  Sup. 
Ct.  44S,  41  L.  Ed.  S23. 

Consult  Ben£t;  De  Hart,  and  also  Adye; 
Defalon ;  Hough;  J.Kennedy,  V.Kennedy; 
M'Arthur  ;  Macnaghten  ;  Macomb  ;  Simmons  ; 
Tytler;  Dudley;  Davis,  Courts-Martial; 
Brickhimer;  Ives;  Merrill;  Winthrop,  Mil. 
Law ;  Opinions  J.  Adv.  Gen.  passim  ;  Regula- 
tions for  the  Govt  of  the  Navy  (1909) ;  Court 
of  Inquiry. 

COURT  OF  NISI  PRIUS.  A  court  of  orig- 
inal civil  jurisdiction  in  the  city  and  county 
of  Philadelphia,  held  by  one  of  the  judges 


of  the  supreme  court  of  the  state.    Abolished 
by  the  constitution  of  1VT  :si  Prius; 

Courts  of  Assize  and  Nisi  Prius. 

COURT  OF  THE  OFFICIAL  PRINCIPAL. 
See  Court  of  tiie  Abce 

COURT  OF  ORDINARY.  A  court  which 
has  jurisdiction  of  the  probate  of  wills  and 
the  regulation  of  the  management  of  dece- 
dents' estates. 

Such  a  court  exists  in  Georgia  (Code  1882, 
§  31S),  and  formerly  existed  in  New  Jersey, 
South  Carolina,  and  Texas,  but  has  been  re- 
placed  by  other  courts.  See  2  Kent  409; 
Obdinabt, 

COURT  OF  ORPHANS.  The  court  of  the 
lord  mayor  and  aldermen  of  London,  which 
had  the  care  of  those  orphans  whose  parents 
died  in  London  and  were  free  of  the  city. 

By  the  custom  of  London  this  court  was 
entitled  to  the  possession  of  the  person, 
lands,  and  chattels  of  every  infant  whose 
parent  was  free  of  the  city  at  the  time  of 

ath  and  who  died  in  the  city.    Tl 
editor    or    administrator    of    such    dc  ■ 
parent  was  obliged  to  exhibit  inventor.' 
the  estate  of  the  deceased,  and  give  security 
to  the  chamberlain  for  the  orphan's  part  or 
share.     It  is  now  said  to  be  fallen  Into 
use.     2  Steph.  Com.  313;    Pull.  Oust  Lond. 
196,  Orphans'  Court. 

COURT  OF  OYER  AND  TERMINER.  The 
name  of  courts  of  criminal  jurisdiction  in 
several  of  the  states,  as  in  Delaware  and 
Pennsylvania.  They  were  abolished  in  New 
York  and  New  Jersey  in  1S'J5.  In  Pennsyl- 
vania they  are  held  at  the  same  time  with 
the  court  of  quarter  sessions,  as  a  general 
rule,  and  by  the  same  judges.  In  Delaware 
they  are  specially  called  by  a  precept  from 
the  judges  when  there  are  capital  felonies 
to  be  tried,  and  consist  of  the  chief  justice 
and  three  associate  judges. 

COURTS  OF  OYER  AND  TERMINER 
AND  GENERAL  GAOL  DELIVERY.  In 
English  Law.  Tribunals  for  the  examina- 
tion and  trial  of  criminals. 

They  are  held  before  commissioners  se- 
lected by  the  High  Court,  among  whom  are 
usually  two  Justices  of  that  court. 

Under  the  commission  of  oyer  a>i>!  termi- 
ner the  justices  try  Indictments  previously 
found  at  the  same  assizes  for  i reason,  fel- 
ony, or  misdemeanors.  Dnder  the  commis- 
sion of  general  gaol  delivery  they  may  try 
and  deliver  every  prisoner  who  is  in  gaol 
when  the  judges  arrive  at  the  circuit  town, 
whenever  or  before  whomsoever  indicted  or 
for  whatsoever  crime  committed.  These  com- 
missioners are  joined  with  those  of  assize 
and  nisi  prius  and  the  commission  of  the 
peace.  3  Steph.  Com.  352.  See  Courts  of 
Assize   and   Nisi   Prius. 

In  American  Law.  Courts  of  criminal  ju- 
risdiction in  some  states.  See  Court  of  Oy- 
er and  Terminer. 


COURT  OP  THE  PALACE 


712 


COURT  OF  PIE  POWDER 


COURT  OF  THE  PALACE.  See  Court  of 
the  Steward  and  the  Marshal. 

COURT  OF  PASSAGE.  A  court,  still  ex- 
isting, in  Liverpool,  having  civil  jurisdiction. 
It  is  an  inferior  court  of  record. 

COURT  OF  PECULIARS.  Ecclesiastical 
courts  which  grew  up  in  England  and  grad- 
ually displaced  the  jurisdiction  of  the  ordi- 
nary diocesan  court.  There  are  peculiars  of 
various  descriptions  in  most  dioceses,  and 
in  some  they  are  very  numerous:  Royal, 
archiepiscopal,  episcopal,  deaconal,  subdea- 
conal,  prebendal,  rectorial  and  vicarial. 
Some  of  them  were  wholly  exempt  from  epis- 
copal, and  even  archiepiscopal  control.  There 
was  an  appeal  formerly  to  the  Pope ;  in  later 
days  to  the  High  Court  of  Delegates.  Most 
of  them  have  been  abolished  by  legislation. 
1  Holdsworth,  Hist.  Engl.  Law  352. 

COURTS     OF     PETTY     SESSIONS.       See 

Courts  of  England. 

COURT  OF  PIE  POWDER,  PY-POW- 
DER,  PIPOWDER,  PIE  POUDRE,  or  PIED- 
POUDRE  (Fr.  iried,  foot,  and  poudre,  dust 
or  pied  puldreaux  [old  French]  pedler).  A 
court  of  special  jurisdiction  in  every  fair  or 
market,  said  to  have  been  so  called  because 
the  several  disputes  which  arose  were  ad- 
judged with  a  dispatch  that  suited  the  con- 
venience of  transitory  suitors, — the  men  with 
"dusty  feet" 

The  word  pie  powder,  spelled  also  piedpoudre  and 
pypowder,  has  been  considerd  as  signifying  dusty 
feet,  pointing  to  the  general  condition  of  the  feet 
of  the  suitors  therein;  Cowell ;  Blount;  or  as  In- 
dicating the  rapidity  with  which  justice  is  adminis- 
tered, as  rapidly  as  dust  can  fall  from  the  foot ;  Co. 
4th  Inst.  472;  or  pedler's  feet,  as  being  the  court  of 
such  chapmen  or  petty  traders  as  resorted  to  fairs. 
It  was  not  confined  to  fairs  or  markets,  but  might 
exist,  by  custom,  in  cities,  boroughs,  or  vills  for  the 
collection  of  debts  and  the  like;  Cro.  Jac.  313;  Cro. 
Car.  46;  2  Salk.  ^04.  Coke  calls  them  "Courts  Pe- 
poudrous."  4  Inst.  272.  It  was  an  important  court 
in  his  time.  It  was  held  before  the  steward  of  him 
who  was  entitled  to  the  tolls  from  the  market. 

In  an  enumeration  of  common-law  insti- 
tutions which  he  claims  were  derived  from 
the  Roman  law,  Mr.  Semmes  claims  that 
these  courts  owe  both  their  origin  and  their 
name  to  the  Roman  law,  "as  will  be  seen 
by  referring  to  the  code  1.  3,  tit.  3,  De  Pe- 
daneis  Judioibus."  Address,  Am.  Bar.  Assn. 
Rep.  1SS6,  p.  197. 

The  civil  jurisdiction  extended  to  all  mat- 
ters of  contract  arising  within  the  precinct 
of  the  fair  or  market  during  the  continuance 
of  the  particular  fair  or  market  at  which  the 
court  was  held,  the  plaintiff  being  obliged 
to  make  oath  as  to  the  time  and  place.  The 
cases  were  mostly  trade  disputes,  and  accord- 
ingly the  decisions  were  law  made  by  mer- 
chants, and  a  good  deal  of  interest  attached 
to  them  as  decisions  by  juries  of  experts ;  1 
Social  England  464.  Disputes  only  could  be 
determined  which  arose  in  the  fair  and  in 
fair  time;  Inderwick,  King's  Peace  105. 

The  ciiminal  jurisdiction  embraced  all  of- 


fences committed  at  the  particular  fair  or 
market  at  which  the  court  was  held.  An  ap- 
peal lay  to  tbe  courts  at  Westminster.  See 
Barrington,  Stat.  337;  3  Bla.  Com.  32;  3 
Steph.  Com.  317,  n. ;  Skene,  de  verb.  sig. 
Pede  pulverosus;  Bracton  334;  22  L.  Q.  R. 
244;    1  Holdsw.  Hist.  E.  L.  309. 

The  court  of  pie  poudre  is  mentioned  in 
Odgers,  C.  L.  1021,  as  being  an  inferior  court 
not  of  record,  now  in  existence. 

COURT    OF    POLICIES   OF    INSURANCE. 

A  court  of  special  jurisdiction  which  took 
cognizance  of  cases  involving  claims  made  by 
those  insured  upon  policies  in  the  city  of 
London. 

It  was  organized  by  a  commission  issued 
yearly  by  the  lord  chancellor,  by  virtue  of 
43  Eliz.  c.  12,  and  13  &  14  Car.  II.  c.  23,  to 
the  judge  of  the  admiralty,  the  recorder  of 
London,  two  doctors  of  the  civil  law,  two 
common-law  lawyers,  and  eight  merchants, 
empowering  any  three  of  them  (one  being  a 
civilian  or  barrister)  to  determine  in  a  sum- 
mary way  all  causes  concerning  policies  in 
the  city  of  London.  The  jurisdiction  was 
confined  to  actions  brought  by  assured  per- 
sons upon  policies  of  insurance  on  mer- 
chandise; and  an  appeal  lay  by  way  of  a 
bill  to  the  court  of  chancery.  Tbe  court  has 
been  long  disused,  and  was  formally  abol- 
ished by  stat.  26  &  27  Vict  c.  125.  3  Bli. 
Com.  74;  3  Steph.  Com.  317,  n. ;  Crabb, 
Hist.  Eng.  Law  503. 

COURT  PREROGATIVE.  See  Preroga- 
tive Court.  s 

COURT  OF  PROBATE.  In  American  Law. 
A  court  which  has  jurisdiction  of  the  pro- 
bate of  wills  and  the  regulation  of  the  man- 
agement and  settlement  of  decedents'  estates, 
as  well  as  a  more  or  less  extensive  control 
of  the  estates  of  minors  and  other  persons  who 
are  under  the  especial  protection  of  the  law. 
In  some  states,  this  court  has  also  a  limited 
jurisdiction  in  civil  and  criminal  actions. 
For  the  states  in  which  such  courts  exist, 
and  the  limits  of  their  jurisdiction,  see  the' 
articles  on  the  various  states. 

In  English  Law.  A  court  in  England,  es- 
tablished under  the  Probate  Act  of  1857,  hav- 
ing exclusive  jurisdiction  of  testamentary 
causes  or  proceedings  relating  to  the  validity 
of  wills  and  the  succession  to  the  property 
of  intestates.  2  Steph.  Com.  192 ;  3  id.  346. 
This  court  is  now  merged  in  the  High  Court 
of  Justice  under  the  Judicature  Act  of  1873. 
See  Courts  of  England. 


COURT    OF    PYP0WDER. 

Pie-Powder. 


See  Court  of 


COURT    OF    QUARTER    SESSIONS. 

Courts  of  England. 


See 


COURT  OF  QUARTER  SESSIONS  OF 
THE  PEACE.  A  court  of  criminal  jurisdic- 
tion in  the  state  of  Pennsylvania.  There  is 
one  such  court  in  each  county  of  the  state. 


COURT  OF  QUARTER  SESSIONS       713 


COURT  OF  RECORD 


Its  sessions  are,  In  general,  held  at  the  same 
time  and  by  the  same  judges  as  the  court  of 
oyer  and  terminer  and  general  gaol  delivery. 

COURT  OF  QUEEN'S  BENCH.  See 
Court  of  King's  Bench. 

COURT  OF  RECORD.  A  judicial  organiz- 
ed tribunal  having  attributes  and  exercising 
functions  independently  ot  the  person  of  the 
magistrate  designated  generally  to  hold  it, 
and  proceeding  according  to  the  course  of  the 
common  law.  Ex  parte  Gladhill,  8  Mete. 
(Mass.)  171,  per  Shaw,  C.  J. 

A   court   where   the   acts    and   proce- 
are  enrolled  in   parchment  for  a   perpetual 
memorial  and  testimony.    3  Bla.  Com.  24. 

A  court  which  has  jurisdiction  to  fine  and 
Imprison,  or  one  having  Jurisdiction  of  civil 
causes  above  forty  shillings,  and  proceeding 
according  to  the  course  of  the  common  law. 
Woodman    v.    Somerset    County,    ::7    Me.    29, 

All  courts  are  either  of  record  or  not  of  record. 
The  possession  of  the  right  to  fine  and  Imprison  for 
contempt  was  formerly  considered  as  furnishing 
decisive  evidence  that  a  court  was  a  court  of  rec- 
ord ;  Co.  Litt.  117  6,  260  o;  1  Salk.  114;  12  Mod. 
388;  2  Wms.  Saund.  101a;  Viner,  Abr.  Courts;  and 
it  is  said  that  the  erection  of  a  new  tribunal  with 
this  power  renders  it  by  that  very  fact  a  court  of 
record  ;  1  Salk.  200  ;  12  Mod.  388  ;  1  Woodd.  Lect. 
98 ;  3  Bla.  Com.  24,  25 ;  but  every  court  of  record 
does  not  possess  this  power;  1  Sid.  145;  3  Sharsw. 
Bla.  Com.  25,  n.  The  mere  fact  that  a  permanent 
record  Is  kept  does  not,  In  modern  law,  stamp  the 
character  of  the  court;  since  many  courts,  as  pro- 
bate courts  and  others  of  limited  or  special  Jurisdic- 
tion, are  obliged  to  keep  records  and  yet  are  held  to 
be  courts  not  of  record.  See  Smith  v.  Rice,  11  Mass. 
510;  Smith  v.  Morrison,  22  Pick.  (Mass.)  430; 
Scott  v.  Rushman,  1  Cow.  (N.  Y.)  212;  Thomas  v. 
Robinson,  3  Wend.  (N.  Y.)  26S;  Snyder  v.  Wise,  10 
Pa.  158;  Silver  Lake  Bank  v.  Harding,  5  Ohio,  545; 
Bancroft  v.  Stanton,  7  Ala.  351;  Ellis  v.  White,  25 
Ala.  540.  The  definition  first  given  above  is  taken 
from  the  opinion  of  Shaw,  C.  J.,  In  Ex  parte  Glad- 
hill,  8  Mete.  (Mass.)  171,  with  an  additional  element 
not  required  in  that  case  for  purposes  of  distinction, 
and  is  believed  to  contain  all  the  distinctive  quali- 
ties which  can  be  said  to  belong  to  all  courts  tech- 
nically of  record  at  modern  law.  To  be  a  court  of 
record,  a  court  must  have  a  clerk  and  a  seal ;  Lewis 
Co.  v.  Adamskl,  131  Wis.  311,  111  N.  W.  495.  As  to 
what  are  courts  of  record  and  courts  not  of  record 
In  England,  see  2  Odgers,  C.  L.  1021. 

Courts  may  be  at  the  same  time  of  record 
for  some  purposes  and  not  of  record  for 
others;  Wheaton  v.  Fellows,  23  Wend.  (N. 
Y.)  3TC. ;  Lester  v.  Redmond,  6  Hill  (N.  Y.) 
590;  Ex  pane  Gladhill,  8  Mete.  (Mass.)   1GS. 

Courts  of  record  have  an  inherent  power, 
independently  of  statutes,  to  make  rules  for 
the  transaction  of  business;  but  such  rules 
must  not  contravene  the  law  of  the  land ; 
Fullerton  v.  Bank,  1  Pet.  (U.  S.)  G04,  7  L. 
Ed.  280;  Boas  v.  Nagle,  3  S.  &  R,  (Pa.)  253; 
Snyder  v.  Ranchman,  8  S.  &  R.  (Pa.)  336; 
Risher  v.  Thomas.  2  Mo.  98.  They  can  be 
deprived  of  their  jurisdiction  by  express 
terms  of  denial  only ;  Kline  v.  Wood,  9  S. 
&  R.  (Pa.)  298;  2  Burr.  1042;  1  W.  Bla.  286. 
Actions  upon  the  judgments  of  such  courts 
may,  under  the  statutes  of  limitations  of 
some  of  the  states  of  the  United  States,  be 


brought  after  the  lapse  of  the  period  of  llmi- 

tation  for  actions  on  simple  i 

this  provision  has  gj 

terminations  of  what  are  and  what  art 

courts  of  record.  ith  v.  Mo 

Pick.    (Mass.  I    4::o ;    Mo  •  :;■ 

Cray    (Mass.)   515;   Le  '•   '  I  Bill 

(N.  Y.i   590;  Scott  v.  Rushman,   I   i 

Y.i  212;  Ellis  v.  White,  . 

man  v.  Somerset  County,  :;7  Me. 

Dnder  the  naturalization  act  ot  the  ; 
States,    "every    court   of   record    ii 
having  common-law  jurisdiction  and  ■ 
and   a   clerk  or   prothonotary"    ha 
specified  powers.     As  to   what  the   require- 
ments are  to  constitute  a  court  of  record  un- 
der this  a< :  rter  v.  Gregory,  8 

.)    168;  Wheaton  v.  Fellows,  23  V 
(N.  T.)  375. 

A  writ  of  error  lies  to  correct  erron 
proceedings  in  a  court  of  record  ;  3  Bla. 
4U7;    Gay    v.    Richardson,    18   Pick.    (M 
•tlT;  but  will  not  lie  unless  the  court  be  one, 
technically,    of    record;    Smith    v.    Rice,    11 
Mass.  510.     See  Writ  of  Ekrob. 

COURT  OF  REFEREES.  See  REFEREES, 
Court  of;  Locus  Standi. 

COURT   OF    REGARD.     See  Regabd. 

COURT  OF  REQUESTS  (called  otherwise 
court  of  cot  ,     A  court  of  equity  for 

poor  suitors,  or  for  the  king's  servants  privi- 
leged  to   sue   there.     The   first   record   of  a 
case  is  in  8  Henry  VIII.    Originally  a  stand- 
ing committee  of  the  Council,   its  members 
being  the  same  as  those  of  the  Star  Cham- 
ber.    Later  it  became  a  separate  court  arid 
its    regular  judges   were    styled    V 
Request.     It  was  virtually  abolished  1 
of   1640;    1    Holdsw.   II.   B.    L.    208.      See   3 
Steph.  Com.  440;  Bac.  Abridg.;  Select  ■ 
in  the  Court  of  Requests    (Selden   Society, 
Publ.  vol.  12). 

In   the  17th   and  18th   centuries  Courts  ot 
Request  were  established  In  different  pi 
England   for  the  collection   of   small   d 
by  1S00,  fifty-four  such  courts  had  been  cre- 
ated by  fifty-four  acts  of  Parliament. 

COURT  ROLLS.  The  rolls  of  a  manor 
court.  In  the  13th  century  landowners  were 
beginning  to  catalogue  their  ;  is  and 

enrol  the  proceedings  of  their  courts.     The 
court  roils  show  that  there  was  a  large  body 
of  law  systematically   and    regularly   admin- 
■i     in     these     local    Courts;     -     I! 
B.  L.  272.     See  Copyhold  ;  Roll. 

COURTS  OF  SCOTLAND.  The  Court  of 
-  of  the  Inner  House,  and  the 
Outer  House.  The  former  has  two  divi 
the  lord  President  and  three  Judges  consti- 
tute the  first  division:  the  Lord  Justice 
Clerk  and  three  judges  constitute  the  second 
division.  In  the  Outer  House  are  five  perma- 
nent Lords  Ordinary,  attached  equally  to 
both  divisions  of  the  court 


COURTS  OF  SCOTLAND 


714 


COURT  OF  STAR  CHAMBER 


Court  of  Justiciary  is  a  court  of  general 
criminal  and  limited  civil  jurisdiction. 

It  consists  of  the  Lord  Justice  General,  the 
Lord  Justice  Clerk,  and  all  the  members 
of  the  court  of  session.  The  kingdom  is 
divided  into  three  circuits,  in  each  of  which 
two  sessions,  of  not  less  than  three  days 
each,  are  to  be  held  annually.  A  term  may 
be  held  by  any  two  of  the  justices,  or  by  the 
Lord  Justice  General  alone,  or  in  Glasgow, 
by  a  simple  justice;  except  in  Edinburgh, 
where  three  justices  constitute  a  quorum, 
and  four  generally  sit  in  important  cases. 

Its  criminal  jurisdiction  extends  to  all 
crimes  committed  in  any  part  of  the  king- 
dom; and  it  has  the  power  of  reviewing  the 
sentences  of  all  inferior  criminal  courts,  un- 
less excluded  by  statute.    Alison,  Pr.  25. 

Its  civil  jurisdiction  on  circuits  is  appel- 
late and  final  in  cases  involving  not  more 
than  twelve  pounds  sterling. 

COURT  OF  SESSIONS.  A  court  of  crim- 
inal jurisdiction  existing  in  some  of  the 
states. 

COURT     OF     SHERIFF'S     TOURN.     See 

Sheriff's  Tourn. 

COURT  OF  STANNARIES.  See  Stan- 
nary Courts. 

COURTS  OF  THE  STAPLE.  See  Stat- 
ute Staple. 

COURT  OF  STAR  CHAMBER.  A  court 
which  was  formerly  held  by  members  of  the 
King's  Council,  together  with  two  judges  of 
the  courts  of  common  law. 

The  name  star  chamber  is  of  uncertain  origin.  It 
has  been  thought  to  be  from  the  Saxon  steoran,  to 
govern,  alluding  to  the  jurisdiction  of  the  court  over 
the  crime  of  cosenage ;  and  has  been  thought  to 
have  been  given  because  the  hall  in  which  the  court 
was  held  was  full  of  windows,  Lambard,  Eiren.  148; 
or,  according  to  Blackstone,  because  the  contracts 
and  obligations  of  the  Jews  (called  Starra,  which 
were  enrolled  in  three  places,  one  of  which  was 
the  exchequer  at  Westminster)  were  originally  kept 
there  ;  4  Bla.  Com.  266,  n.  The  room  so  used  came 
to  be  appropriated  to  the  Council.  The  derivation 
of  Blackstone  receives  confirmation  from  the  fact 
that  this  location  (the  exchequer)  is  assigned  to  the 
star  chamber  the  first  time  it  is  mentioned.  The 
word  star  acquired  at  some  time  the  recognized 
signification  of  inventory  or  schedule.  Stat.  Acad. 
Cont.  32  ;  4  Sharsw.  Bla.  Com.  266,  n  ;  Coke  (4  Inst. 
66).  Sir  Thomas  Smith  (3  Comm.  c.  4),  and  Cam- 
den (Britannia  130),  derive  the  name  from  the  fact 
that  the  roof  of  the  room  where  the  Council  sat,  was 
ornamented  with  stars.  "Sterred  Chambre"  is  first 
refered  to  in  1348  ;    1  Holdsw.  Hist.  E.  L.  272. 

In  1487  an  act  relating  to  the  King's  Coun- 
cil provided  that  the  Chancellor  and  Treas- 
urer of  England,  the  Keeper  of  the  Privy 
Seal,  or  two  of  them,  a  bishop  and  a  tem- 
poral lord  of  the  Council,  the  two  chief  jus- 
tices, or  two  other  justices  in  their  absence, 
should  have  jurisdiction  over  certain  "mis- 
doers."  According  to  Coke  and  Bacon  this 
act  merely  confirmed  the  jurisdiction  of  the 
Council  and  vested  it  in  a  committee.  This 
committee  became  an  ordinary  court  towards 
the  end  of  the  16th  century,  though  closely 


connected  with  the  Council.  It  was  officially 
styled  "The  Lords  of  the  Council  sitting  in 
the  Star  Chamber."  The  jurisdiction  relat- 
ed to  matters  in  some  way  concerning  the 
state  such  as  piracy,  prize,  salvage,  disputes 
arising  in  the  course  of  trade;  punishing 
libels,  conspiracy  and  false  accusations,  riots, 
fraud,  forgery,  and  enforcing  the  laws 
against  recreants.  In  private  disputes,  it 
was  open  to  all.  It  protected  the  weak  from 
the  oppression  of  great  offenders.  If  the 
poor  were  oppressed  they  sought  relief  in 
the  Star  Chamber.  Palgrave  (Council  104) 
says  that  it  "became  indispensable  for  the 
preservation  of  the  rights  and  liberties  of 
the  people." 

The  court  became  unpopular  and  its  pro- 
ceedings in  political  cases  became  tyrannical 
before  1640.  In  that  year  it  was  abolished 
by  Parliament,  together  with  the  Council  of 
Wales,  the  Council  of  the  North,  the  juris- 
diction of  the  Star  Chamber  exercised  by 
the  Court  of  the  Duchy  of  Lancaster,  and 
the  Court  of  Exchequer  of  the  County  Pala- 
tine of  Chester.  The  act  provided  that  nei- 
ther the  King  nor  his  Privy  Council  have,  or 
should  have,  jurisdiction  by  English  bill, 
petition  etc.  over  the  lands  and  chattels  of 
subjects,  but  that  the  same  ought  to  be  de- 
termined in  the  ordinary  courts  of  justice 
and  by  the  ordinary  course  of  law.  See 
Grand  Remonstrance. 

As  the  act  referred  only  to  English  bills 
or  petitions,  it  did  not  affect  the  appellate 
jurisdiction  of  the  Council  over  places  out- 
side the  English  law.  To  this  is  largely  due 
the  present  Judicial  Committee  of  the  Privy 
Council,  which  title  see.  See  1-  Holdsw.  Hist. 
E.  L.  271 ;  Encycl.  Brit,  art.  Star  Chamoer; 
Palgrave,  Council ;  Scofield ;  Hudson,  Star 
Chamber;  12  Am.  L.  Rev.  21;  Courts  of 
England;  Privy  Council. 

COURT  OF  THE  STEWARD  AND  THE 
MARSHAL.  A  court  which  had  cognizance  of 
cases  which  arose  within  the  Verge  i.  e. 
within  12  miles  of  the  place  where  the  king 
was  actually  residing.  Its  judges  had  ju- 
risdiction as  deputies  of  the  Lord  Chief  Jus- 
tice ;  when  he  was  present,  their  general  au- 
thority ceased.  When,  in  28  Edw.  I.,  the 
King's  Bench  was  ordered  to  follow  the 
king,  their  general  jurisdiction  practically 
ceased,  though  they  sometimes  tried  cases  in 
vacation  under  a  special  commission  of  oyer 
and  terminer. 

As  judges  of  the  Court  of  the  Marshalsea. 
the  Steward  and  the  Marshal  had  jurisdic- 
tion in  debt  and  covenant  (if  both  parties 
were  of  the  King's  household),  and  in  tres- 
pass vi  et  armis  (if  one  was)  ;  and  it  was 
limited  to  the  Verge  (10  Co.  Rep.  71).  As 
it  was  obliged  to  follow  the  king  it  was  an 
extremely  inconvenient  court  to  use. 

It  is  probable  that  the  fiction  by  which 
the  King's  Bench  ultimately  acquired  con- 
current jurisdiction  with  the  Common  Pleas 


COURT  OF  THE  STEWARD 


715      COURT  OF  WARDS  AND  LIVERIES 


sprang  from   its  early   connection  with   this 
court 

Charles  I.  created  a  Court  of  the  Palace 
to  be  held  by  the  Steward  and  the  Marshal, 
baying  jurisdiction  over  all  personal  actions 
arising  within  the  Verge  of  Whitehall,  but 
cases  begun  there,  if  of  Importance,  were 
usually  removed  to  the  King's  Bench  r 
Common  Pleas;  l  Boldsw.  Hist.  1;.  I..  BO. 
The  Palace  Court  was  abolished  by  12  &  13 
Vict.  c.  101.     .'J  Steph.  Com.  317. 

COURT  OF  SWANIMOTE  or  SWE1N- 
MOTE  (spelled,  also,  Swainmote,  Swain-ge- 
mote; Saxon,  strung,  an  attendant,  a  free- 
holder, and  mote  or  gemote,  a  meeting). 

In   English   Law.     One  of  the  forest  courts, 
now  ol  solete,  held  before  the  verderers,  as 
Judges,  by  the  steward,  thrice  In  everj 
— the  sweins  or  freeholders  within  the  forest 
composing  the  jury. 

This  court  had  jurisdiction  to  inquire  into 
grievances  and  oppressions  committed  by  the 
officers  of  the  forest,  and  also  to  receive  and 
try  presentments  certified  from  the  court  of 
attachments,  certifying  the  cause,  in  turn, 
under  the  seals  of  the  jury,  in  case  of  con- 
viction, to  the  court  of  justice  seat  for  the 
rendition  of  judgment  Cowell ;  3  Bla,  Com. 
71,  72;  ::  Steph.  Com.  317,  n.  See  Inderwick, 
King's  Peace  150;  Forest  Laws. 

COURTS  OF  SURVEY.  These  are  courts 
hold  in  England  and  Wales  under  the  Mer- 
chants' Shipping  Act  of  1804.  The  Wreck 
Commissioner  is  judge  of  every  such  court 
in  the  United  Kingdom.  There  are  a  large 
number  of  associate  judges  in  various  cir- 
cuits in  England  and  Wales. 

COURTS  OF  THE  TWO  UNIVERSITIES. 
In  English  Law.  See  Chancellor's  Courts 
of  the  Two  Universities. 

COURTS     OF     THE      UNITED     STATES. 

See  United  States  Courts. 

COURT  OF  VICAR  GENERAL.  A  court 
of  the  Archbishop  of  Canterbury,  in  which 
the  bishops  of  the  province  are  confirmed. 
1  Holdsw.  Hist.  E.  L.  H12. 

COURT  OF  WARDS  AND  LIVERIES.  A 
court  of  record  in  England,  which  had  the 
supervision  and  regulation  of  Inquiries  con- 
cerning the  profits  which  arose  to  the  crown 
from  the  fruits  uf  tenure-,  and  to  grant  to 
heirs  the  delivery  of  their  lands  from  the 
possession  of  their  guardians. 

The  Court  of  th  was  Instituted  by 

stat.  32  Hen.  VIII.  c.  46,  to  take  the  place  of  the 
ancient  inquisitio  post  mortem,  and  the  jurisdiction 
of  the  restoration  of  lands  to  heirs  on  their  becom- 
ing of  age  (livery)  was  added  by  statute  " 
VIII.  c.  22,  when  it  became  the  Court  of  W'arJ.s 
and  Liveries.    It  was  abolished  in  16C0. 

The  jurisdiction  extended  to  the  superin- 
tendence of  lunatics  and  idiots  in  the  king's 
custody,  granting  licenses  to  the  king's  wid- 
ows to  marry,  and  Imposing  lines  for  marry- 
ing without  license;  -i  Reeve.  Hist.  L\  L.  259; 


Crabb,  Hist.  E.  L. 
-i  id.  40;  •_'  Bla.  i 

COURTESY^     See  Cum 

COUSIN.  The  son  or  daughter  of  the 
brother  or  sister  of  ones  father  or  mi 

Th.-   issue,    respectivel; 
or  two  sisters,  or  of 

'l  I..*  e   who  descend   from   th"  \ 
sister  of  the  father  of  the  person 
are   called   paternal   cousins;    maternal 
ins  are  those  who  are  descendt  '    fl  ■:■!   the 

-;    or    sisters   of    the    mother. 
Brown,  Ch.  125;  1  sin,.  &  B.  '■■"\  ;  'J  si: 
ir>7.    The  word  is  still  applied  in  Devonshire 
to  a  nephew.     1  Yes.  Jr.   T.'J. 

COUSINAGE.     See  Cosinace. 

couthutlaugh.  lie  (hat  willingly  re- 
ceives an  outlaw  and  cherishes  or  conceals 
him.  In  ancient  times  he  was  subject  to  the 
same   punishment   as   the   outlaw.      Blount 

COUTUM  (Fr.).  Custom;  duty;  toll.  1 
Bla.  Com.  314. 

COUTUMIER     (Fr.).     S 

MIER. 

COVENABLE  (L.  Fr.).  Convenient;  suit- 
able.     Anciently   written   convenable. 

COVENANT   (Lat.  convenire,  to  coi 
gether;  conventio,  a  coming  together.     It   is 
equivalent  to  the  factum  conventum  of  the 
civil  law ) . 

In  Contracts.  An  agreement  between  two 
or  more  persons,  entered  into  by  deed,  where- 
by one  of  the  parties  promises  the  perform- 
ance or  non-performance  of  certain  a<  I 
that  a  given  state  of  things  does  or  shall, 
or  does  not  or  shall  not,  exist. 

A  contract  under  seal;  a  deed. 

Affirmative  COV(  mints  are  those  in  which 
the  covenantor  declares  that  something  has 
been  already  done,  or  shall  be  done  in  the 
future. 

Affirmative  covenants  do  not  operate  to 
deprive  covenantees  of  rights  enjoyed  Inde- 
pendently of  the  covenants;  Dyer  19  o;  1 
Leon.   251. 

Covenants     against     incumbran 
Covenant  against  [ncumbbai; 

Alternativi   covenants  are  «lis ju-. 
nants. 

Auxiliary   covenant*   are   those   which   do 
not    relate    directly    to    the    principal    matter 
of  contract    between   the  parties,  hut  to 
thing  connected  with   it.     Those  the  SC< 
whose  operations  is  in  aid  or  support  of  the 
principal    covenant.      If    the    principal 
nam    is    void,    the    auxiliary    is    disch 
Anstr.  256;  Prec.  Chanc.   IT.". 

Collateral  covenants  are  those  which  are 
entered  into  in  connection  with  the  grant  of 
something,  hut  which  do  not  relate  immedi- 
ately to  the  thing  granted:  as.  to  pay  a 
sum  of  money  in  gross,  that  the  lessor  shall 


COVENANT 


716 


COVENANT 


distrain  for  rent  on  some  other  land  than 
that  which  is  demised,  to  build  a  house  on 
che  land  of  some  third  person,  or  the  like. 
Piatt,  Cov.  69;  Shepp.  Touchst*  161;  4  Burr. 
2439 ;  3  Term  393 ;  2  J.  B.  Moore  164 ;  5  B. 
&  Aid.  7 ;  2  Wils.  27 ;  1  Ves.  56. 

Concurrent  covenants  are  those  which  are 
to  be  performed  at  the  same  time.  When 
one  party  is  ready  and  offers  to  perform  his 
part,  and  the  other  refuses  or  neglects  to 
perform  his,  he  who  is  ready  and  offers  has 
fulfilled  his  engagement,  and  may  maintain 
an  action  for  the  default  of  the  other,  though 
it  is  not  certain  that  either  is  obliged  to  do 
the  first  act;  Piatt,  Cov.  71;  2  Selw.  N.  P. 
443;  Dougl.  69S;  18  E.  L.  &  Eq.  81;  Good- 
win v.  Lynn,  4  Wash.  C.  C.  714,  Fed.  Cas. 
No.  5,553 ;  Denny  v.  Kile,  16  Mo.  450. 

Declaratory  covenants  are  those  which 
serve  to  limit  or  direct  uses.  1  Sid.  27;  1 
Hob.  224. 

Dependent  covenants  are  those  in  which 
the  obligation  to  perform  one  is  made  to  de- 
pend upon  the  performance  of  the  other. 
Covenants  may  be  so  connected  that  the 
right  to  insist  upon  the  performance  of  one 
of  them  depends  upon  a  prior  performance 
on  the  part  of  the  party  seeking  enforce- 
ment. Piatt,  Cov.  71;  2  Selw.  N.  P.  443;  1 
C.  B.  N.  S.  646;  Northrup  v.  Northrup,  6 
Cow.  (N.  Y.)  296;  Cassell  v.  Cooke,  8  S.  & 
R.  (Pa.)  268,  11  Am.  Dec.  610;  Smith  v. 
Lewis,  24  Conn.  624,  63  Am.  Dec.  180;  Low 
v.  Marshall,  17  Me.  232;  Humphries  v. 
Goulding,  3  Ark.  581;  Caldwell  v.  Kirkpat- 
rick,  6  Ala.  60,  41  Am.  Dec.  36;  Bailey  v. 
White,  3  Ala.  330.  To  ascertain  whether 
covenants  are  dependent  or  not,  the  inten- 
tion of  the  parties  is  to  be  sought  for  and 
regarded,  rather  than  the  order  or  time  in 
which  the  acts  are  to  be  done,  or  the  struc- 
ture of  the  instrument,  or  the  arrangement 
of  the  covenant;  1  Wms.  Saund.  320,  n. ; 
5  B.  &  P.  223;  Goodwin  v.  Lynn,  4  Wash. 
O.  C.  714,  Fed.  Cas.  No.  5,553;  McCrelish  v. 
Churchman,  4  Rawle  (Pa.)  26;  Grant  v. 
Johnson,  5  N.  T.  247 ;  Leveret  v.  Sherman,  1 
Root  (Conn.)  170;  Brockenbrough  v.  Ward's 
Adm'r,  4  Rand.  (Va.)  352.  See  note  to  Cut- 
ter v.  Powell,  2  Smith  Lead.  Cas.  22. 

Distinctive  covenants.  Those  which  are 
for  the  performance  of  one  or  more  of  sev- 
eral things  at  the  election  of  the  covenantor 
or  covenantee,  as  the  case  may  be.  Piatt, 
Cov.  21;  Harmony  v.  Bingham,  1  Duer  (N. 
Y.)   209. 

Executory  covenants  are  those  whose  per- 
formance is  to  be  future.  Shepp.  Touchst. 
161. 

Express  covenants  are  those  which  are 
created  by  the  express  words  of  the  parties 
to  the  deed  declaratory  of  their  intention ; 
Piatt,  Cov.  25.  The  formal  word  covenant 
is  not  indispensably  requisite  for  the  crea- 
tion of  an  express  covenant ;  5  Q.  B.  683 ; 
8  J.  B.  Moore  546 ;  Marshall  v.  Craig,  1  Bibb 
(Ky.)  379,  4  Am.  Dec.  647;  Hallett  v.  Wylie, 


3  Johns.  (N.  Y.)  44,  3  Am.  Dec.  457;  Mitchell 
v.  Hazen,  4  Conn.  508,  10  Am.  Dec.  169; 
Randel  v.  Canal,  1  Harr.  (Del.)  233.  The 
words  "I  oblige,"  "agree,"  1  Ves.  516;  "I 
bind  myself,"  Hardr.  178;  3  Leon.  119;  have 
been  held  to  be  words  of  covenant,  as  are  the 
words  of  a  bond ;  1  Ch.  Cas.  194.  Any  words 
showing  the  intent  of  the  parties  to  do  or 
not  to  do  a  certain  thing,  raise  an  express 
covenant ;  Lovering  v.  Lovering,  13  N.  H.  513. 
But  words  importing  merely  an  order  or  di- 
rection that  other  persons  should  pay  a  sum 
of  money,  are  not  a  covenant ;  6  J.  B.  Moore 
202. 

Covenants  for  further  assurance.  See 
Covenant  foe  Further  Assurance. 

Covenants  for  quiet  enjoyment.  See  Cov- 
enant for  Qutet  Enjoyment. 

Covenants  for  title  are  those  covenants  in 
a  deed  conveying  land  which  are  inserted 
for  the  purpose  of  securing  to  the  grantee 
and  covenantee  the  benefit  of  the  title  which 
the  grantor  and  covenantor  professes  to  con- 
vey. 

Those  in  common  use  in  England  are  four 
in  number — of  right  to  convey,  for  quiet  en- 
joyment, against  incumbrances,  and  for  fur- 
ther assurance — and  are  held  to  run  with 
the  land;  the  covenant  for  seisin  has  not 
been  generally  in  use  in  modern  conveyanc- 
es in  England;  Rawle,  Cov.  §  24.  In  the 
United  States  there  is,  in  addition,  a  cove- 
nant of  warranty,  which  is  more  commonly 
used  than  any  of  the  others.  What  are 
"often  called  'full  covenants'  are  the  cove- 
nants for  seisin,  for  right  to  convey,  against 
incumbrances,  for  quiet  enjoyment,  some- 
times for  further  assurance,  and,  almost  al- 
ways, of  warranty — this  last  often  taking 
the  place  of  the  covenant  for  quiet  enjoy- 
ment;" Rawle,  Cov.  §  27.  The  covenants  of 
seisin,  for  right  to  convey,  and  against  in- 
cumbrances, are  generally  held  to  be  in  prw- 
senti;  if  broken  at  all,  they  are  broken  as 
soon  as  made;  Rawle,  Cov.  318;  4  Kent  471; 
Whitney  v.  Dinsmore,  6  Cush.  (Mass.)  128; 
3  Washb.  R.  P.  478;  see  Mitch.  R.  P.  448; 
Allen  v.  Little,  36  Me.  170;  and  the  various 
titles  below  for  a  fuller  statement  of  the 
law  relative  to  the  different  covenants  for 
title. 

Implied  covenants  or  covenants  in  laxo  are 
those  which  arise  by  intendment  and  con- 
struction of  law  from  the  use  of  certain 
words  having  a  known  legal  operation  in 
the  creation  of  an  estate,  so  that  after  they 
have  had  their  primary  operation  in  the 
creation  of  the  estate,  the  law  gives  them 
a  secondary  force,  by  implying  an  agreement 
on  the  part  of  the  grantor  to  protect  and 
preserve  the  estate  so  by  these  words  already 
created;  1  C.  B.  429;  Bacon,  Abr.  Covenant, 
B ;  Rawle,  Cov.  §  270,  n.  In  Co.  Litt.  139  b, 
it  is  said  that  "of  covenants  there  be  two 
kinds :  a  covenant  personal  and  a  covenant 
real;  a  covenant  in  deed  and  a  covenant  in 
law."    In  a  conveyance  of  lands  in  fee,  the 


COVENANT 


717 


COVENANT 


words  "grant,  bargain,  and  sell,"  Imply  cer- 
tain covenants ;  see  4  Kent  473 ;  and  the 
word  "give"  implies  a  covenant  of  warranty 
during  the  life  of  the  feoffor;  Raymond  v. 
Raymond,  10  Cush.  (Mass.)  134;  Frost  v. 
Raymond,  2  Oal  (N.  Y.)  193,  2  Am.  Dec. 
228;  Crouch  v.  Fowle,  9  N.  II.  222,  32  Am. 
Dec.  350;  Young  v.  Hargrave's  Adm'r,  7 
Ohio  69,  pt.  2;  (but  this  covenant  and  that 
implied  from  the  word  "grant"  are  abolish- 
ed in  England  by  s  &  9  Vict  C.  106,  §  Hi; 
and  in  a  base  the  use  of  the  words  "grant 
and  demise;"  Co.  Litt.  3S4 ;  Barney  v.  Keith. 
4  Wend.  (N.  Y.)  502;  "grant;"  Cro 
214;  l  P.  &  D.  300;  "demise;"  4  Co.  80;  10 
Mod.  102;  Crouch  v.  Fowle.  9  N.  II.  222,  32 
Am.  Dec.  350;  Vernam  v.  Smith,  16  N.  Y. 
327;  "demisement;"  1  Show.  79;  1  Salk.  137; 
raise  an  implied  covenant  on  the  part  of  the 
lessor,  as  do  "yielding  and  paying;"  Board- 
man  v.  Harrington,  0  Vt  151;  on  the  part 
of  the  lessee.  In  regard  to  the  covenants 
arising  to  each  grantee  by  implication  on 
sale  of  an  estate  with  conditions,  in  parcels 
to  several  grantees,  see  Brouwer  v.  Jones,  23 
Barb.   (N.  Y.)   153. 

Covenants  in  deed.    Express  covenants. 

Covenants  in  gross.  Such  as  do  not  run 
with  the  land. 

Covenants  in  lair.     Implied  covenants. 

Illegal  con  mints  are  those  which  are  ex- 
pressly  or  Impliedly  forbidden  by  law.  Cove- 
nants are  absolutely  void  when  entered  into 
in  violation  of  the  express  provisions  of  stat- 
utes;  Hall  v.  Mullin,  5  Har.  &  J.  (Md.)  193; 
Seidenbender  v.  Charles'  Adm'rs,  4  S.  &  R. 
(Pa.)  159,  8  Am.  Dec.  682;  Weaver  v.  Wal- 
lace, 9  N.  J.  L.  2."j2;  (see  V,oid)  ;  or  if  they 
are  of  an  immoral  nature;  1  B.  &  P.  340; 
Winebrinner  v.  Weisiger,  3  T.  B.  Monr. 
(ESy.)  '■'<;>:  against  public  policy;  Aver  v. 
Hntchins,  1  Mass.  370,  3  Am.  Dec.  232;  Hods- 
don  v.  Wilkins,  7  Greenl.  (Me.)  113,  20  Am. 
Dec.  347;  Gulick  v.  Ward,  10  N.  .7.  L.  87,  18 
Am.  Dec.  389;  Nichols  v.  Rnggles,  3  Day 
i.)  11."),  :;  Am.  Dec.  262;  Clippinger  v. 
Hepbaugh,  5  W.  &  S.  (Pa.)  315,  40  Am.  Dec. 
519;  Cowen  v.  Boyce,  5  How.  (Miss.)  769; 
Scudder  v.  Andrews,  2  McLean,  464,  Fed. 
('as.  No.  12,564;  Toler  v.  Armstrong.  4  Wash. 
C.  C.  297,  Fed.  Cas.  No.  14,078;  Armstrong  v. 
Toler,  11  Wheat.  (U.  S.)  258,  6  L.  Ed.  168; 
in  general  restraint  of  trade;  Ross  v.  Sad- 
gheer,  21  Wend.  (N.  Y.)  166;  Pierce  v.  Wood- 
ward, 6  Pick.  (Mass.)  200;  or  fraudulent  as 
between  the  parties;  Duncan  v.  McCullougb, 
4  S.  &  R.  (Pa.)  483;  Banorgee  v.  Hovey,  5 
Mass.  16,  4  Am.  Dec.  17 ;  or  as  to  third  per- 
sons; Bailey  v.  Lewis,  3  Day  (Conn.)  -150; 
Martin  v.  Mathiot,  14  S.  &  R.  (Pa.)  211,  10 
Am.  Dec.  491;  Case  v.  Gerrish,  15  Pick. 
(Mass.)  49. 

Independent  eorcnants  are  those  the  ne- 
cessity of  whose  performance  is  determined 
entirely  by  the  requirements  of  the  cove- 
nant  itself,    without  regard    to   other   cove- 


nants between  the  parties  relative  to  the 
same  subject-matter  or  transactions  or  series 
of  transaction-. 

Covenants   are   generally   construed   to   be 
independent;     Piatt,    Cov.    71;     Barruso    v. 
Ma  dan,    2   Johns.    (N.    V.  i     145;     Mill 
i'mmd. tv  v.  Hovey,  21  Pick  (Mass.)  4 
Bingh.  N.  S.  355;    unless  the  undertake 
one  side  is  in  terms  a  condition  to  the  bi 
lation  of  the  other,  and  then  only 
ly  with  the  intention  of  the  parties  ;   .".  .Maule 
&  S.  308;    or  unless  dependency  results  from 
the  nature  of  the  acts  to  be  done,  and  the  or- 
der in   which  ttiey  must  necessarily  pr 
ami  follow  each  other  in  the  progress  of  per- 
formance;   Willes   496;    or   unless   the   non- 
performance on  one  side  goes  to  the  entire 
substance  of  the  contract,  and  to  the  whole 
consideration;   Grant  v.  Johnson,  5  N.  Y.  2)7. 
If  once  independent,  they  remain  so;    1. 
v.  Harris,  19  Barb.    (N.  Y.)   416. 

Inherent  covenants  are  those  which  relate 
directly  to  the  land  itself,  or  matter  grant- 
ed. Shepp.  Touchst.  IfflL  Distinguished 
from  collateral  covenants. 

If  real,  they  run  with  the  land ;  Piatt, 
Cov.  66. 

Intransitive  eorcnants  are  those  the  duty 
of  performing  which  is  limited  to  the  cove- 
nantee himself,  and  does  not  pass  over  to 
his  representative. 

Joint  covenants  are  those  by  which  several 
parties  agree  to  do  or  perform  a  thi: 
gether,  or  in  which  several  persons  have  a 
joint   interest  as  covenantees.     Cheesbrough 

ite,  2';  Barb.   (N.  Y.)   603;    Cab 
Bradley,   16  How.    (U.    s.)    580,    14  P.   Ed. 
1066;     Capen   v.   Barrows,   1   Gray    |  M 
370;    Evans  v.  Sanders,  10  P..  Monr.    (Ky.) 
291.     They  may  be  in  the  negative;    Wing  v. 
Chase,  35  Me.  200. 

■itire  eorcnants  are  those  in  which  the 
party  obliges  himself  not  to  do  or  perform 
some  act.  Courts  are  unwilling  to  construe 
a  negative  covenant  a  condition  precedent, 
inasmuch  as  it  cannot  be  said  to  be  per- 
formed till  a  breach  becomes  Impossible;  2 
Wms.  Saund.  156;    l  Mod.  64;   2  KebL  674. 

Obligatory  eorcnants  are  those  which  are 
binding  on  the  party  himself.  1  Sid.  27:  1 
KebL  337.  They  are  distinguished  from 
declaratory  covenants. 

Personal  Covenants.  See  Personal  Cove- 
nant. 

Principal  eorcnants.  Those  which  relate 
directly  to  the  principal  matter  of  the  con- 
tract entered  into  between  the  parties.  They 
are  distinguished  from  auxiliary. 

Real  COVt  nants.     See  Rkal  Covenant. 

Corenants  of  rights  to  conccy.  See  Cove- 
nant of  Right  to  Convey. 

Corenants  of  seisin.  See  Covenant  of 
Seisin. 

Corenants  to  stand  seized,  etc.  See  Cove- 
nant to  Stand  Sr.izr.n  to  Pses. 

Transitive    covenants    are    those    personal 


COVENANT 


718 


COVENANT 


covenants  the  duty  of  performing  which 
passes  over  to  the  representatives  of  the 
covenantor. 

Covenants  of  warranty.  See  Covenant  of 
Warranty. 

Covenants  are  subject  to  the  same  rules  as 
other  contracts  in  regard  to  the  qualifica- 
tions of  parties,  the  assent  required,  and  the 
nature  of  the  purpose  for  which  the  contract 
is  entered  into.     See  Parties  ;    Contracts. 

No  peculiar  words  are  needed  to  raise  an 
express  covenant;    Midgett  v.  Brooks,  34  N. 
O.  145,  55  Am.  Dec.  405;    5  Q.  B.  683;   3  Ex. 
237,  per  Parke,  B.;    and  by  statute  in  Ala- 
bama, Arkansas,  Delaware,  Illinois,  Indiana, 
Mississippi,  Missouri,  Montana,  Nevada,  New 
Mexico,  Pennsylvania,  and  Texas,  the  words 
grant,   bargain,  and  sell,  in  conveyances  in 
fee,   unless   specially    restricted,    amount   to 
covenants  that  the  grantor  was  seized  in  fee, 
freed    from    incumbrances   done    or   suffered 
by  him,  and  for  quiet  enjoyment  against  his 
acts ;    4  Kent  473 ;    Gratz's  Lessee  v.  Ewalt, 
2  Binn.  (Pa.)  95;  Dickson  v.  Desire's  Adm'r, 
23    Mo.    151,    66    Am.    Dec.    661;    Chambers' 
Adm'r  v.  Smith's  Adm'r,  23  Mo.  174;  Griffin 
v.  Reynolds,  17  Ala.  198;   Prettyman  v.  Wil- 
key,  19  111.  235 ;    Davis  v.  Tarwater,  15  Ark. 
289;   but  do  not  imply  any  general  warranty 
of  title  in  Alabama,  Arkansas,  Pennsylvania, 
and  North  Carolina ;  4  Kent  474;   Winston  v. 
Vaughan,  22  Ark.  72,  76  Am.  Dec.  418 ;   Rick- 
ets v.  Dickens,  5  N.  C.  343,  4  Am.  Dec.  555 ; 
Roebuck  v.  Duprey,  2  Ala.  535.    In  Iowa,  by 
the  statute  of  1843,  the  same  rifle  was  au- 
thorized, and  upon  this  it  was  held  that  all 
covenants   were  express;    Brown  v.  Tomlin- 
son,  2  G.  Greene  (la.)  525;  but  no  such  pro- 
visions are  to  be  found  in  the  revised  code 
of  18S4.     In   Ohio  the  statute  of  1795   was 
almost  exactly  copied  from  the  Pennsylvania 
statute,   but   was   repealed   in   1824  and  re- 
enacted  in  substance,   and  entirely  repealed 
in    1831,    and    the    latest    Revised    Statutes 
(1884),  like  those  of  Iowa,  are  silent  on  the 
subject.      The    Wisconsin    statute,    providing 
that  no  covenant  shall  be  implied,  makes  an 
exception  in  the  case  of  the  short  form  of 
conveyance  provided  by  statute,  and  declares 
that  such  a  deed  shall  have  the  effect  of  a 
conveyance  in  fee  simple  to  the  grantee,  his 
heirs  and  assigns,  etc. ;    Rev.  Stat.  1878.     In 
Tennessee  there  is  no  statutory  provision  as 
to  implied  covenants,  but  a  statutory  short 
form   of  conveyance   was   held   to   authorize 
the    broadest    construction    of    the    granting 
words  unless  their  effect  was  specially  lim- 
ited by  the  instrument  itself;    Daly  v.  Willis, 
5  Lea  (Tenn.)  100.    In  California  and  North 
and  South  Dakota  the  same  rule  substantial- 
ly is  prescribed  by  statute  in  the  first-named 
state,  the  implied  covenants  do  not  run  with 
the  land;    Lawrence  v.  Montgomery,  37  Cal. 
183.     In  Georgia  a  covenant  of  general  war- 
ranty is  held  to  include  covenants  of  a  right 
to    convey,    quiet    enjoyment,    and    freedom 
from  incumbrances;    Burk  v.   Burk,  64  Ga. 


632.     See  generally  on  this  subject,  Rawle, 
Cov.  §  286. 

Describing  lands  in  a  deed  as  bounded  on 
a  street  of  a  certain  description  raises  a 
covenant  that  the  street  shall  be  of  that  de- 
scription; Loring  v.  Otis,  7  Gray  (Mass.) 
563;  and  that  the  purchaser  shall  have  the 
use  thereof;  Moale  v.  Mayor,  etc.,  of  Balti- 
more, 5  Md.  314,  61  Am.  Dec.  276;  Green- 
wood v.  R,  R.,  23  N.  H.  261;  which  binds  sub- 
sequent purchasers  from  the  grantor  ;  Thom- 
as v.  Poole,  7  Gray  (Mass.)  83. 

In  New  York  it  is  provided  by  statute  that 
no  covenants  can  be  implied  in  any  convey- 
ance of  real  estate;  4  Kent  409;  but  this 
provision  does  not  extend  to  leases  for  years  ; 
Tone  v.  Brace,  11  Paige  (N.  Y.)  566;  Mack 
v.  Patchin,  42  N.  Y.  174,  1  Am.  Rep.  506. 

The  New  York  statute  has  been  enacted 
in  Michigan,  Minnesota,  Oregon,  Wisconsin, 
and  Wyoming,  and  no  covenants  for  title 
seem  to  be  implied  in  states  other  than  those 
above  named.  In  some  cases  where  the  cove- 
nants relate  to  lands,  the  rights  and  liabili- 
ties of  the  covenantor,  or  covenantee,  or 
both,  pass  to  the  assignee  of  the  thing  to 
which  the  covenant  relates.  In  such  cases 
the  covenant  is  said  to  run  with  the  land.  If 
rights  pass  the  benefit  is  said  to  run;  if  lia- 
bilities, the  burden.  Only  real  covenants  run 
with  the  land,  and  these  only  when  the  cove- 
nant has  entered  into  the  consideration  for 
which  the  land,  or  some  interest  therein  to 
which  the  covenant  is  annexed,  passed  be- 
tween the  covenantor  and  the  covenantee ;  2 
Sugd.  Vend.  468,  4S4;  2  M.  &  K.  535;  Morse 
v.  Aldrich,  19  Pick.  (Mass.)  449;  Hurd  v. 
Curtis,  19  Pick.  (Mass.)  464;  Van  Rens- 
selaer v.  Bonesteel,  24  Barb.  (N.  Y.)  366; 
Lyon  v.  Parker,  45  Me.  474 ;  see  1  Washb.  R. 
P.  526;  and  they  die  with  the  estate  to  which 
they  are  annexed;  Lewis  v.  Cook,  35  N.  C 
193 ;  but  an  estoppel  to  deny  passage  of  title 
is  said  to  be  sufficient;  Trull  v.  Eastman,  3 
Mete.  (Mass.)  124,  37  Am.  Dec.  126;  and  the 
passage  of  mere  possession,  or  defeasible 
estate  without  possession,  enables  the  cove- 
nant to  run;  Dickson  v.  Desire's  Adm'r,  23 
Mo.  151.  66  Am.  Dec.  661;  Chambers'  Adm'r 
v.  Smith's  Adm'r,  23  Mo.  174. 

It  is  said  by  some  authorities  that  the 
benefit  of  a  covenant  to  do  acts  upon  land 
of  the  covenantee,  made  with  the  "covenantee 
and  his  assigns,"  will  run  with  the  land 
though  no  estate  passed  between  the  cove- 
nantor and  covenantee ;  Rawle,  Cov.  335 ; 
Year  B.  42  Edw.  III.  13;  Allen  v.  Culver,  3 
Den.  (N.  Y.)  301;  but  the  weight  of  author- 
ity is  otherwise;  2  Sugd.  Vend.  468;  Piatt, 
Cov.  461.  Covenants  concerning  title  gen- 
erally run  with  the  land ;  Carter  v.  Den- 
man's  Ex'rs,  23  N.  J.  L.  200;  except  those 
that  are  broken  before  the  land  passed;  4 
Kent  473;  Swasey  v.  Brooks,  30  Vt.  692.  See 
Covenant  of  Seisin,  etc.  "Until  breach, 
covenants  for  title,  without  distinction  be- 
tween them,  run  with  the  land  to  heirs  and 


COVENANT 


719 


COVENANT 


assigns.  But  while  this  is  well  settled,  a 
strong  current  of  American  authority  has 
set  in  favor  of  the  position  that  the  cove- 
nants for  seisin,  for  right  to  convey,  and, 
perhaps,  against  incumbrances,  are  what  are 
called  covenants  in  prasenti, — if  broken  at 
all,  their  breach  occurs  at  the  moment  ot 
their  creation.  .  .  .  These  covenants,  it 
is  held,  are  then  turned  into  a  mere  right  of 
action,  which  is  not  assignable  at  law  and 
can  neither  pass  to  an  heir,  a  devisee,  or  a 
subsequent  purchaser.  S  distinctloD  is  con- 
sidered, by  this  class  of  cases,  to  exist,  in 
this  respect,  between  the  covenants  first 
named,  and  those  for  quiet  enjoyment,  <>f 
warranty,  and  for  further  assurance,  which 
are  held  to  be  prospective  in  their  charac- 
ter;" Rawle,  Cov.  §§  204,  205.  See  also 
Grecnby  v.  Wilcocks,  2  Johns.  (N.  Y.)  1,  3 
Am.   Dec.  379. 

Covenants  in  leases,  by  virtue  of  the  stat- 
ute 32  Hen.  VIII.  c.  34,  which  has  been  re- 
enacted  in  most  of  the  states,  are  assignable 
as  respects  assignees  of  the  reversion  and 
of  the  lease.  The  lessee  continues  liable  on 
express  covenants  after  an  assignment  by 
him,  but  not  on  implied  ones;  4  Term  9S; 
but  he  is  liable  to  the  assignee  of  the  lessor 
on  implied  covenants,  at  common  law;  Piatt, 
Cov.  532;  2  Sugd.  Vend.  4G<J;  Burton,  R.  P. 
§  855.    See  1  Washb.  R.  P.  52G. 

In  case  of  the  assignment  of  lands  in  par- 
cels, the  assignees  may  recover  pro  rata,  and 
the  original  covenantee  may  recover  accord- 
ing to  his  share  of  the  original  estate  re- 
maining; 2  Sugd.  Vend.  SOS;  Rawle,  Cov.  § 
215;  Allen  v.  Little,  30  Me.  17u;  McClure'8 
Ex'rs  v.  Gamble,  27  Pa.  2SS;  White  v.  Whit- 
ney, 3  Mete.  (Mass.)  87;  Dickinson  v. 
Hoomes's  Adm'r,  8  Gratt.  (Va.)  407;  Dough- 
erty v.  Duvall's  Heirs,  9  B.  Monr.  (Ky.  |  58. 
But  covenants  are  not,  in  general,  apportion- 
able;  McClure's  Ex'rs  v.  Gamble,  27  Pa.  288. 
See  Spencer's  case,  1  Sin.  Lend.  Cas.  200. 
In  Practice.  A  form  of  action  which  lies 
to  recover  damages  for  breach  of  a  contract 
under  seal.  It  is  one  of  the  brcria  furmata 
of  the  register,  and  is  sometimes  a  concurrent 
remedy  with  debt,  though  never  with  as- 
sumpsit, and  is  the  only  proper  remedy 
where  the  damages  are  unliquidated  in  na- 
ture and  the  contract  is  under  seal;  Fitzh. 
N.  B.  340;  Chit.  PI.  Il2,  IK'.:  2  Steph.  N.  P. 
1058.  As  to  the  early  history  of  the  action, 
see  Salmond,  3  Sel.  Essays,  Auglo-Amer.  L. 
11.  324. 

The  action  lies,  generally,  where  the  cove- 
nantor does  some  act  contrary  to  his  agree- 
ment, or  fails  to  do  or  perform  that  which 
he  has  undertaken;  4  Dane.  Abr.  115;  or 
does  that  which  disables  him  from  perform- 
ance; Cro.  Eli/..  449;  15  Q.  B.  S8;  Heard  v. 
Bowers,  23  Pick.   (Mass.)  455. 

To  take  advantage  of  an  oral  agreement 
modifying  the  original  covenant  in  an  es- 
sential point,  the  covenant  must  be  aban- 
doned and  assumpsit  brought;    Lehigh  Coal 


&  Xav.  Co.  v.   Harlan.   J7  Pa.  429;    Sherwin 
v.   R.    K.  CO.,  -!    \  ' 

'lite    venue    is    local    when    the    action    is 
founded  on  privity  of  i  Saund 

241   6,  n.:    and  transitory  whi  □  LI    Is  founded 
upon  privity  of  contract.     A 
nal    parties    to    the    covenant,    tb  i   la 

transitorj  ;    and,  by  :;-j.  Hen.  VIII.  c.  34,  an 
action    of   covenant   by    an    .. 
reversion   against   a   Lessor,  or   by   a 
again  t   the  assignee  of  the  reversion,  is  a 
;     1    Chit.    PI.   271. 

The  declaration  must,  at  common  law,  aver 
a  contract  under  seal;    -   Ld   ELaym. 
ami    either    make    profert   thereof   or    • 
the  omission;    :;  Term   151;    at   Least  of  such 
part  as  is  broken;    Bender  v.  Fromberger,  4 
Dall.    (U.   S.i    436,    1    I-    Ed.   898;    Kiliian   v. 
Herndon,  4  Rich.  (S.  C.)   196;    and  a  breach 
or  breaches;    Fortenbury  v.  Tunstali,  5 
2G3;     Steele   v.    Curie,    4   Dana    (Ky.)    381  : 
which  may  be  by  negativing  the  words  of  the 
covenant  in  actions  upon  covenants  of  seisin 
and  right  to  convey;    Rawle,  Cov.  g  176;   or 
according  to  the  legal  effect;    but  musl   set 
forth  the  incumbrance  in  case  of  a  covenant 
against   incumbrances;    id.   §  SO;    and   must 
allege  an  eviction  in  case  of  warranty;    id. 
§  155.     The  disturbance  must  be  averred  to 
have  been  under  lawful  title;    id.     No  con- 
sideration need  be  averred  or  shown,  as  it  is 
said  to  be  implied  from  the  seal;    but  per- 
formance of  an  act  which  constitutes  a  i 
tion  precedent  to  the  defendant's  covenant,  if 
there    be    any    such,    must    be    averred  :     2 
Greenl.   Ev.  §   235;    Nesbitt  v.   McGehee,  26 
Ala.  748.    The  damages  laid  must  be  large 
enough  to  cover  the  real  amount  sou) 
be  recovered;   Clarke  v.  McAuulty.  3  S.  >S:  R. 
(Pa.)  364;    Jordan  v.  Cooper,  id.  567. 

There  is  no  plea  of  general  issue  in  this 
action.  Under  nan  est  factum,  the  defend- 
ant may  show  any  facts  contradicting  the 
making  of  the  deed;  Haggart  v.  Morgan,  5 
N.  Y.  422.  55  Am.  Dec.  350;  Agent  of  state 
Prison  v.  Lathrop,  1  Mich.  438;  as.  personal 
Incapacity;  2  Campb.  272;  that  the  deed 
was  fraudulent;  Lofft  457;  was  pot  deliver- 
ed ;  1  Esp.  255;  or  was  not  executed  by  all 
the  parties:    6  Maule  &  S.  341. 

Xon   infregit  conventionem   and   nil  debet 
have  both  been  held  Insufficient ;    Com.  Dig. 
Pleader,  -   V.  4.     As  to  the  effect  of 
nant    performed,   see   COVENANTS    PERFORMED. 

The  judgment  is  that  the  plaintiff  c 
a  named  sum  for  the  damages  which  b< 
sustained  by  reason  of  the  breach  or  breach- 
es of  covenant,  together  with  cos 


COVENANT  TO  CONVEY.  A  covenant  by 
which  the  covenantor  undertakes  to  convey 

to  tb e.euaiitee  fne  estate  described  in  the 

cov.  nant.  under  certain  eireumsta; 

Tliis  form  of  conditional  alienation  of  lands  Is  in 
frequent  use;  Espy  v.  Anderson,  14  Pa.  308;  Atkins 
v.  Bahrett,  19  Barb.  (N.  Marshall  v.  Haney, 

4  Md.  498.  59  Am.  Dec.  92;  Morgan  v.  Smith,  11  111. 
194 ;  Campbell  v.  Gittings,  19  Ohio,  347.  Substan- 
tially the  same  effect  is  secured  as  by  a  conveyance 


COVENANT 


720 


COVENANT 


and  a  mortgage  back  for  the  purchase-money,  with 
this  important  difference,  however,  that  the  title 
remains  in  the  covenantor  until  he  actually  exe- 
cutes the  conveyance. 

The  remedy  for  breach  may  be  by  action 
011  the  covenant;  Haverstick  v.  Gas  Co.,  29 
Pa.  254;  but  the  better  remedy  is  said  to  be 
in  equity  for  specific  performance;  Poor  Di- 
rectors v.  McFadden,  1  Grant  Cas.  (Pa.)  230. 
It  is  satisfied  only  by  a  perfect  convey- 
ance of  the  kind  bargained  for;  Atkins  v. 
Bahrett,  19  Barb.  (N.  Y.)  639;  otherwise 
where  an  imperfect  conveyance  has  been  ac- 
cepted;  Marshall  v.  Haney,  4  Md.  498,  59 
Am.  Dec.  92. 

COVENANT  FOR  FURTHER  ASSUR- 
ANCE. One  by  which  the  covenantor  under- 
takes, at  the  requirement  of  the  covenantee, 
to  do  such  reasonable  acts  in  addition  to 
those  already  performed  as  may  be  neces- 
sary for  the  completion  of  the  transfer  made, 
or  intended  to  be  made.  It  relates  both  to 
the  title  of  the  vendor  and  to  the  instrument 
of  conveyance,  and  operates  as  well  to  secure 
the  performance  of  all  acts  for  supplying 
any  defect  in  the  former,  as  to  remove  all 
objections  to  the  sufficiency  and  security  of 
the  latter.    Piatt  Cov.  341. 

The  covenant  is  of  frequent  occurrence 
in  English  conveyances;  but  its  use  here 
seems  to  be  limited  to  some  of  the  middle 
states;  2  Washb.  R.  P.  64S;  Griffin  v.  Fair- 
brother,  10  Me.  91;  Prescott  v.  Trueman,  4 
Mass.  627,  3  Am.  Dec.  246 ;  Raymond  v.  Ray- 
mond, 10  Cush.  (Mass.)  134.  It  is  usual  in 
railroad  and  other  corporation  mortgages. 

The  covenantor,  in  execution  of  his  cove- 
nant, is  not  required  to  do  unnecessary  acts ; 
Yelv.  44;  9  Price  43.  He  must  in  equity 
grant  a  subsequently  acquired  title;  2  Ch. 
Cas.  212;  2  P.  Wms.  630;  must  levy  a  fine; 
16  Ves.  366;  4  Maule  &  S.  188;  must  remove 
a  judgment  or  other  incumbrance ;  5  Taunt. 
427;  but  a  mortgagor  with  such  covenant 
need  not  release  his  equity ;  1  Ld.  Raym.  36. 
It  may  be  enforced  by  a  bill  in  equity  for 
specific  performance,  or  an  action  at  law  to 
recover  damages  for  the  breach ;  2  Co.  3  a ; 
6  Jenk.  Cas.  24 ;  Rawle,  Cov.  §  362 ;  2  Washb. 
R.  P.  666. 

COVENANT  AGAINST  INCUMBRANCES. 
One  which  has  for  its  object  security  against 
those  rights  to,  or  interests  in,  the  land 
granted  which  may  subsist  in  third  persons 
to  the  diminution  of  the  value  of  the  estate, 
though  consistently  with  the  passing  of  the 
fee  by  the  deed  of  conveyance.  See  Incum- 
brance. 

The  mere  existence  of  an  incumbrance 
constitutes  a  breach  of  this  covenant;  2 
Washb.  R.  P.  658;  McLemore  v.  Mabson,  20 
Ala.  137;  without  regard  to  the  knowledge  of 
the  grantee;  2  Greenl.  Ev.  §  242;  Butler  v. 
Gale,  27  Vt  739 ;  Medler  v.  Hiatt,  8  Ind.  171. 
Such  covenants,  being  in  prccsenti,  do  not 
run  with  the  land  in  Massachusetts  and 
most  of  the  other  states;    but  the  rule  is 


otherwise,  either  by  statute  or  decision  in 
Maine,  R.  S.  1883,  p.  697,  tit  9,  §  18;  Colo- 
rado, R  S.  1883,  172;  Georgia,  Code  1882, 
672 ;  New  York,  Hall  v.  Dean,  13  Johns.  105 ; 
Colby  v.  Osgood,  29  Barb.  339;  Ohio,  Foote 
v.  Burnet,  10  Ohio,  327,  36  Am.  Dec.  90; 
Minnesota,  Kimball  v.  Bryant,  25  Minn.  496; 
Missouri,  Magwire  v.  Riggin,  44  Mo.  512; 
Hall  v.  Scott  Co.,  7  Fed.  341,  2  McCrary  356, 
Indiana,  Martin  v.  Baker,  5  Blackf.  232; 
Wisconsin,  Mecklem  v.  Blake,  22  Wis.  495,  99 
Am.  Dec.  68  (reversing  the  rule  adopted  in 
Pillsbury  v.  Mitchell,  5  Wis.  17);  Iowa, 
Knadler  v.  Sharp,  36  la.  232 ;  South  Carolina, 
Brisbane  v.  M'Crady's  Ex'rs,  1  N.  &  McC. 
104,  9  Am.  Dec.  676;  Vermont,  Cole  v.  Kim- 
ball, 52  Vt  639;  and  possibly  in  Michigan. 
See  Rawle,  Cov.  §  212.  If  the  covenant  is  so 
linked  with  another  covenant  as  to  have  a 
prospective  operation  it  runs  with  the  land ; 
id.  This  covenant  is  usually  coupled  with 
that  of  seisin  in  considering  this  question, 
but  it  was  not  treated  as  running  with  the 
land  in  this  country  so  readily  as  the  latter; 
Rawle,  Cov.  §  212. 

Yet  the  incumbrance  may  be  of  such  a 
character  that  its  enforcement  may  consti- 
tute a  breach  of  the  covenant  of  warranty ; 
as  in  case  of  a  mortgage ;  Hamilton  v.  CUtts, 
4  Mass.  349,  3  Am.  Dec.  222;  Sprague  v. 
Baker,  17  Mass.  586 ;  Tufts  v.  Adams,  8  Pick. 
(Mass.)  547. 

The  measure  of  damages  is  the  amount  of 
injury  actually  sustained;  Delavergne  v. 
Norris,  7  Johns.  (N.  Y.)  358,  5  Am.  Dec.  281 ; 
Bean  v.  Mayo,  5  Greenl.  (Me.)  94;  Wyman 
v.  Ballard,  12  Mass.  304 ;  Batchelder  v.  Stur- 
gis,  3  Cush.  (Mass.)  201;  Morrison  v.  Un- 
derwood, 20  N.  H.  369;  Willson  v.  Willson, 
25  N.  H.  229,  57  Am.  Dec.  320;  Rawle,  Cov. 
§  188. 

The  covenantee  may  extinguish  the  in- 
cumbrance and  recover  therefor,  at  his  elec- 
tion, in  the  absence  of  agreement;  Lawless 
v.  Collier's  Ex'rs,  19  Mo.  4S0;  Willson  v. 
Willson,  25  N.  H.  229,  57  Am.  Dec.  320.  See 
Covenant;   Real  Covenant. 

COVENANT  OF  NON-CLAIM.  A  covenant 
sometimes  employed,  particularly  in  the  New 
England  States,  and  in  deeds  of  extinguish- 
ment of  ground  rents' in  Pennsylvania,  that 
neither  the  vendor,  nor  his  heirs,  nor  any 
other  person,  etc.,  shall  claim  any  title  in 
the  premises  conveyed.  Rawle,  Cov.  §  22.  It 
is  substantially  the  same  as  the  covenant  of 
warranty,  q.  v.;  id.  §  231. 


COVENANT  NOT  TO  SUE.  One  entered 
into  by  a  party  who  has  a  cause  of  action 
at  the  time  of  making  it,  by  which  he  agrees 
not  to  sue  the  party  liable  to  such  action. 

A  perpetual  covenant  not  to  sue  is  one  by 
which  the  covenantor  agrees  not  to  sue  the 
covenantee  at  any  time.  Such  a  covenant 
operates  as  a  release  to  the  covenantee,  and 
may  be  pleaded  as  such.  Cro.  Eliz.  623; 
Hastings  v.  Dickinson,  7  Mass.   153,  5  Ank 


COVENANT 


721 


COVENANT 


Dec.  34;  Shed  v.  Pierce,  17  Mass.  623; 
Harvey  v.  Harvey,  3  Ind.  473 ;  34  L.  J.  Q.  B. 
25.  And  see  Wolf  v.  Wyeth,  11  S.  &  R.  (Pa.) 
149. 

A  covenant  of  this  kind  with  one  of  sev- 
eral, jointly  and  severally  bound,  will  not 
protect  the  others  so  bound;  12  Mod.  551  ; 
Ward  v.  Johnson,  6  Munf.  (Va.)  6,  8  Am. 
Dec.  729;  Walker  v.  McCulloch,  4  Greenl. 
(Me.)  421;  Mason  v.  Jouett'S  Adm'r,  2  Dana 
(Ky.)  107;  Shed  v.  Pierce,  17  Mass.  623. 
It  is  equivalent  to  a  release  with  a  reserve 
of  remedies,  and  hence  is  properly  used  in 
composition  deeds  in  preference  to  a  release, 
which  discharges  all  sureties  and  co-debtors; 

3  B.  &  C.  301. 

A  covenant  by  one  of  several  partners  not 
to  sue  cannot  be  set  up  as  a  release  in  an 
action  by  all ;   3  P.  &  D.  149. 

A  limited  covenant  not  to  sue,  by  which 
the  covenantor  agrees  not  to  sue  for  a  lim- 
ited time,  does  not  operate  a  release ;  and 
a  breach  must  be  taken  advantage  of  by 
action;  Carth.  G3;  1  Show.  4G;  2  Salk.  573; 
11  Q.  B.  852;  Rowland  v.  Marvin,  5  Cal.  501. 
See  Keep  v.  Kelly,  29  Ala.  322,  as  to  requisite 
consideration.    See  Leake,  Contr.  92S. 

COVENANT  FOR  QUIET  ENJOYMENT. 
An  assurance  against  the  consequences  of  a 
defective  title,  and  of  any  disturbances  there- 
upon. Piatt,  Cov.  312  ;  11  East  G41 ;  Rawle, 
Cov.  §  91.  By  it,  when  general  in  its  terms, 
the  covenantor  stipulates  at  all  events;  1 
Mod.  101;  to  indemnify  the  covenantee 
against  all  acts  committed  by  virtue  of  a 
paramount  title;  Piatt,  Cov.  313;  4  Co.  80 
b;  Cro.  Car.  5;  3  Term  584;  Howard  v.  Doo- 
little,  3  Duer  (N.  Y.)  4G4;  Parker  v.  Dunn, 
47  N.  C.  203;  Hagler  v.  Simpson,  44  N.  C. 
3S4;  Carter  v.  Denman's  Ex'rs,  23  N.  J.  L. 
2G0;  not  including  the  acts  of  a  mob ;  Surget 
v.  Arighi,  11  Smedes  &  M.  (Miss.)  87,  49  Am. 
Dec.  4G;  Rantin  v.  Robertson,  2  Strobh.  (S. 
C. )  367;  nor  a  mere  trespass  by  the  lessor; 
Mayor,  etc.,  of  New  York  v.  Mahie,  13  N.  Y. 
151,  64  Am.  Dec.  538. 

But  this  rule  may  be  varied  by  the  terms 
of  the  covenant;  as  where  it  is  against  acts 
of  a  particular  person ;  Cro.  Eliz.  212;  5 
Maule  &  S.  374 ;  or  those  "claiming  or  pre- 
tending to  claim  ;"  10  Mod.  .">S3;  or  molesta- 
tion by  any  person.  See  Surget  v.  Arighi,  11 
Smedes  &  M.  (Miss.)  87,  19  Am.  Dec.  46. 

It  has  practically  superseded  (he  ancient 
doctrine  of  warranty  as  a  guaranty  of  title, 
in  English  conveyances ;  2  Washb.  R,  P. 
661;  but  the  latter  is  more  common  in  con- 
veyances in  America  ;    Rawle,  Cov.  §  91. 

It  occurs  most  frequently  in  leases;  i 
Washb.  R.  P.  325;  Rawle,  Cov.  §  91;  and 
is  usually  the  only  covenant  used  in  such 
cases;  it  is  there  held  to  be  raised  by  the 
words  grant,  demise,  lease,  yielding  and  pay- 
ing, give,  etc.;  1  P.  &  D.  360;  Oroneh  v. 
Eowle,  9  N.  II.  222,  32  Am.  Dec.  350;  Ver- 
nam  v.  Smith,  15  N.  Y.  327;    6  Bingh.  656; 

4  Kent  474,  n. ;    and  exists  impliedly  in   a 

Bouv.— 46 


parol  lease;  20  E.  L.  &  Eq.  374;  Carter  v. 
Denman's  Ex'rs,  23  X.  J.  L.  260;  see  Blydeu- 
burgh  v.  Cotheal,  1  Duer  (N.  Y.)  176.  It  is 
usual  in  ground-rent  deeds  in  Pennsylvania; 
Rawle,  Cov.  §  91. 

COVENANT  OF  RIGHT  TO  CONVEY. 
An  assurance  by  the  covenantor  that  the 
grantor   has    suffich  I  y    and   title   to 

convey  the  estate  which  he  by  his  deed  un- 
dertakes to  convey. 

in  modern  English  conveyancing,  tl 
nant  has  taken  the  place  of  the  covenant  of 
seisin;  2  Washb.  II.  I'.  648.  It  is  Bald 
the  same  as  a  covenant  of  seisin  ;  Griffin  v. 
Fairbrother,  10  Me.  91;  Prescott  v.  Truemau, 
1  Mass.  627,  :;  Am.  Dec.  216;  but  is  not  nec- 
essarily so,  as  it  includes  the  capacity  of  the 
grantor;   T.  Jones  195;   Cro.  Jac.  358 

The  breach  takes  place  on  execution  of 
the  deed,  if  at  all;  Freem.  41;  Chapman  v. 
Holmes'  Ex'rs,  10  N.  J.  L.  20;  and  the  cove- 
nantee need  not  wait  for  a  disturbance  to 
bring  suit ;  5  Taunt.  426;  but  a  second  recov- 
ery of  damages  cannot  be  had  for  the  same 
breach;  Piatt,  Cov.  310;  1  Maule  &  S. 
4  Id.  53. 

COVENANT  OF  SEISIN.  An  assurance  to 
the  grantee  that  the  grantor  has  the  ver 
tate,  both  in  quantity  and  quality,  which  he 
professes  to  convey.  Piatt,  Cov.  30G.  It  has 
given  place  in  England  to  the  covenant  of 
right  to  convey,  but  is  in  use  in  several 
states;  2  Washb.  R.  P.  64S. 

In  England;  1  Maule  &  S.  355;  4  id.  53; 
and  in  several  states  of  the  United  States  ; 
e.  g.  Colorado,  Georgia.  New  York,  Ohio, 
Minnesota  and  other  states  (see  Rawle,  Cov. 
§  211)  ;  by  decisions;  Martin  v.  Bal 
Blackf.  (Ind.)  232;  Devore  v.  Sunderland, 
17  Ohio  52,  49  Am.  Dec.  442 :  Mecklem  v. 
Blake.  22  Wis.  495,  :>9  Am.  Dec.  68;  Schofield 
v.  Homestead  Co.,  32  la.  317,  7  Am.  Rep.  L97  ; 
Magurre  v.  Riggin,  44  Mo.  512;  or  by  stat- 
ute; 2  Washb.  R.  P.  650;  this  covenant  runs 
with  the  land,  and  may  be  sued  on  for  breach 
by  an  assignee;  in  other  states  it  is  held 
that  a  mere  covenant  of  lawful  seisin  does 
not  run  with  the  land,  but  is  broken,  if  at  all. 
at  the  moment  of  executing  the  deed:  I 
v.  Jackson.  4  Mass.  408;  Prescott  v.  True- 
man,  4  Mass.  <;l'7.  :-;  Am.  i>ec.  246;  Raymond 
v.  Raymond,  10  Cush.  (Mass.')  134;  Fowlej 
v.  poling.  2  Barb.  (X.  X.j  803;  Cushman  v. 
Blanchard,  2  Greenl.  (Me.)  269,  11  Am.  Dec 
76;  Wilson  v.  Forbes,  13  N.  C.  30;  Dickin- 
son v.  Hoomes's  Adm'r,  s  Gratt  (Va 
Kencaid  v.  Brittain,  5  Sneed  (Tenn.)  119; 
Bottorf  v.  smith.  7  Ind.  673;  Brady  v. 
Spurck,  27  111.  482;  Lawrence  v.  Ewot 
-•r.v.  37  CaL  188;  Pate  v.  Mitchell.  2;; 
590,  7!)  Am.  Dec.  114.    See  Covenant  Against 

INCUMHUW 

A  eovenant  for  indefeasible  seiRin  is  every- 
where held  to  run  with  the  land  •»  Garfield  v. 
Williams.  2  Vt.  32S  ;  Wilson  v.  Forbes.  L3  N. 
C.  30;    Bender  v.  Fromberger,  4  Dall.   (Pa. » 


COVENANT 


T2L 


COVENANT 


439,  1  L.  Ed.  898;  Kincaid  v.  Brittain,  5 
Sneed  (Tenn.)  123;  Abbott  v.  Allen,  14 
Jobns.  (N.  Y.)  248;  Smith  v.  Strong,  14 
Pick.  (Mass.)  128;  Collier  v.  Gamble,  10  Mo. 
467;  and  to  apply  to  all  titles  adverse  to 
the  grantor's;   2  Washb.  R.  P.  G56. 

A  covenant  of  seisin  or  lawful  seisin,  in 
England  and  most  of  tbe  states,  is  satisfied 
only  by  an  indefeasible  seisin ;  Rawle,  Cov. 
§  41;  7  C.  B.  310;  Mills  v.  Catlin,  22  Vt.  106; 
Parker  v.  Brown,  15  N.  H.  176  ;  Lockwood  v. 
Sturdevant,  6  Conn.  374;  while  in  other 
states  possession  under  a  claim  of  right  is 
sufficient;  Catlin  v.  Ilurlburt,  3  Vt  403; 
Raymond  v.  Raymond,  10  Cush.  (Mass.)  134; 
Bearce  v.  Jackson,  4  Mass.  408;  Marston  v. 
Hobbs,  2  Mass.  439,  3  Am.  Dec.  61 ;  Wilson 
v.  Widenham,  51  Me.  567;  Montgomery  v. 
Reed,  69  Me.  510;  Watts  v.  Parker,  27  111. 
229;  Scott  v.  Twiss,  4  Neb.  133;  Vancourt  v. 
Moore,  26  Mo.  92 ;  Backus'  Adm'rs  v.  McCoy, 
3  Ohio  211,  17  Am.  Dec.  5S5;  Robinson  v. 
Neil,  3  Ohio  525. 

A  covenant  of  seisin,  of  whatever  form,  is 
broken  at  the  time  of  the  execution  of  the 
deed  if  the  grantor  has  no  possession  either 
by  himself  or  another;  and  no  rights  can 
pass  to  the  assignee  of  the  grantee;  Greenby 
v.  Wilcocks,  2  Johns.  (N.  Y.)  1,  3  Am.  Dec. 
379;  Garfield  v.  Williams,  2  Vt.  327;  Mitch- 
ell v.  Warner,  5  Conn.  497;  Bartholomew 
v.  Candee,  14  Pick.  (Mass.)  170;  Devore  v. 
Sunderland,  17  Ohio  60,  49  Am.  Dec.  442; 
Dickinson  v.  Hoomes's  Adm'r,  8  Gratt.  (Va.) 
397;  Pollard  v.  Dwight,  4  Cra.  (U.  S.)  43.0, 
2  L.  Ed.  666;  Allen  v.  Little,  36  Me.  170; 
Abernathy  v.  Boazman,  24  Ala.  189,  60  Am. 
Dec.  459;  4  Kent  471.  But  it  is  said  that 
this  is  only  a  technical  breach,  and  that  a 
cause  of  action  for  a  substantial  breach  does 
not  accrue,  and  the  statute  of  limitations 
commence  to  run,  till  there  has  been  some 
^substantial  injury ;  Fors.hay  v.  Shafer,  116 
la.  302,  89  N.  W.  1106;  but  other  cases  hold 
that  the  full  consideration  paid  may  be  re- 
covered immediately  upon  breach.  The  cases 
will  be  found  in  8  Am.  &  Engl.  Enc.  Law 
186. 

The  existence  of  an  outstanding  life-es- 
tate; Mills  v.  Catlin,  22  Vt.  106;  a  material 
deficiency  in  the  amount  of  land ;  Pringle  v. 
Witten's  Ex'rs,  1  Bay  (S.  C.)  256,  1  Am. 
Dec.  612 ;  see  Phfpps  v.  Tarpley,  24  Miss. 
597;  non-existence  of  the  land  described ; 
Wheelock  v.  Thayer,  16  Pick.  (Mass.)  68; 
the  existence  of  fences  or  other  fixtures  on 
the  premises  belonging  to  other  persons,  who 
have  a  right  to  remove  them;  Mott  v.  Palm- 
er, 1  N.  Y.  564 ;  West  v.  Stewart,  7  Pa.  122 ; 
Van  Wagner  v.  Van  Nostrand,  19  la.  427 ; 
or  of  a  paramount  right  in  another  to  divert 
a  natural  spring;  Clark  v.  Conroe's  Estate, 
38  Vt.  471 ;  or  to  prevent  the  grantee  from 
damming  \w(ter  to  a  certain  height  when  that 
right  is  reserved  to  him  by  his  deed;  Hall  v. 
Gale,  20  Wis.  293;  Traster  v.  Snelson's 
Adm'r,  29  Ind.  96 ;    concurrent  seisin  of  an- 


other as  tenant  in  common ;  Wheeler  v. 
Hatch,  12  Ma  3S9;  Morrison  v.  MeArthur, 
43  Me.  567 ;  adverse  possession  of  a  part  by 
;i  stranger;  Sedgwick  v.  Hollenback,  7  Johns* 
( N.  Y. )  376 ;  a  conveyance  by  one  of  two 
teuants  in  common  of  the  entire  estate  (so 
far  as  his  half  is  concerned)  ;  Downer's 
Adm'rs  v.  Smith,  38  Vt.  464;  constitute  a 
breach  of  this  covenant.  But  the  existence 
of  such  easements  or  incumbrances  as  do  not 
affect  the  seisin  of  the  purchaser  does  not 
constitute  a  breach  of  the  covenant;  Rawle, 
Cov.  §  59.  For  instance,  the  existence  of  a 
highway  over  a  part  of  the  land ;  Jackson  v. 
Hathaway,  15  Johns.  (N.  Y.}  449,  8  Am.  Dec. 
263;  Lewis  v.  Jones,  1  Pa.  336,  44  Am.  Dec. 
138 ;  Peck  v.  Smith,  1  Conn.  103,  6  Am.  Dec. 
216 ;  Vaughn  v.  Stuyaker,  16  Ind.  340 ;  or  of 
a  judgment,  mortgage,  or  right  of  dower; 
Rawle,  Cov.  §  59;  Fitzhugh  v.  Croghan,  2  J. 
J.  Marsh.  (Ky.)  430,  19  Am.  Dec.  139;  Tuite 
v.  Miller,  10  Ohio  383;  Sedgwick  v.  Hollen- 
back, 7  Johns.  (N.  Y.)  3S0;  (otherwise  if  the 
mortgagee  has  entered;  Rawle,  Cov.  §59); 
the  removal  of  fixtures;  Loughran  v.  Ross, 
45  N.  Y.  792,  6  Am.  Rep.  173.  But  see  Whit- 
ney v.  Dinsmore,  6  Cush.  (Mass.)  124. 

In  the  execution  of  a  power,  a  covenant 
that  the  power  is  subsisting  and  not  revoked 
is  substituted;    Piatt,  Cov.  309. 

COVENANT     TO      STAND      SEISED      TO 

USES.  A  covenant  by  means  of  which  under 
the  statute  of  uses  a  conveyance  of  an  estate 
may  be  effected.    Burton,  R  P.  §§  136,  145. 

Such  a  covenant  cannot  furnish  the  ground 
for  an  action  of  covenant  broken,  and  in  this 
respect  resembles  the  ancient  real  covenants. 

The  consideration  for  such  a  covenant 
must  be  relationship  either  by  blood  or  mar- 
riage; 2  Washb.  R.  P.  129;  See  Corwin  v. 
Corwin,  6  N.  Y.  342,  57  Am.  Dec.  453. 

As  a  mode  of  conveyance  it  has  fallen 
into  disuse ;  though  the  doctrine  is  often  re- 
sorted to  by  courts  in  order  to  give  effect  to 
the  intention  of  the  parties  who  have  under- 
taken to  convey  lands  by  deeds  which  are 
insufficient  for  the  purpose  under  the  rules 
required  in  other  forms  of  conveyance;  2 
Washb.  R  P.  155;  2  Sand.  Uses  79,  S3;  Wal- 
lis  v.  Wallis,  4  Mass.  136,  3  Am.  Dec.  210; 
Gale  v.  Coburn,  18  Pick.  (Mass.)  397;  Allen 
v.  Sayward,  5  Greenl.  (Me.)  232,  17  Am.  Dec. 
221;  Jackson  v.  Staats,  11  Johns.  (N.  Y.) 
351,  6  Am.  Dec.  376;  Cains'  Lessee  v.  Jones, 
5  Yerg.    (Tenn.)    249. 

COVENANT  OF  WARRANTY.  An  assur- 
ance by  the  grantor  of  an  estate  that  the 
grantee  shall  enjoy  the  same  without  inter- 
ruption by  virtue  of  paramount  title.  Parker 
v.  Dunn,  47  N.  C.  203;  Howard  v.  Doolittle, 
3  Duer  (N.  Y.)  464;  Rindskopf  v.  Trust  Co., 
58  Barb.  (N.  Y.)  36;  Moore  v.  Lanham,  3 
Hill  (S.  C.)  304. 

It  is  not  in  use  in  English  conveyances, 
but  is  in  general  use  in  the  United  States ; 
2  Washb.  R  P.  659;    and  in  several  states 


COVENANT 


723 


COVENANT 


is  the  only  covenant  in  general  use;  Rawle, 
Cov.  §  21;  Leary  v.  Durham,  4  Ga.  593; 
Dickinson  v.  Iloome's  Adin'r,  8  Gratt.  (Va.) 
353;  Caldwell  v.  Kirkpatrick,  G  Ala.  60,  41 
Am.  Dec.  3G. 

A  special  warranty  is  not  a  covenant 
against  incumbrances;  Washington  City  Sav. 
Bank  v.  Thornton,  S3  Va.  157,  2  S.  E.  193. 
See  I'.ender  v.  Fromberger,  4  Dall.  (Pa.)  436, 

1  L.  Ed.  898. 

The  form  in  common  use  is  as  follows : 
"And  I  the  said  [grantor],  for  myself,  my 
heirs,  executors,  and  administrators,  do  cove- 
nant with  the  said  [grantee]*  his  heirs  and 
assigns,  that  I  will,  and  my  beirs,  executors, 
and  administrators  shall,  warrant  and  de- 
fend the  same  to  the  said  [grantee],  his  beirs 
and  assigns  forever,  against  the  lawful 
claims  and  demands  of  all  persons  [or,  of 
all  persons  claiming  by,  through,  or  under 
me,  but  against  none  otherj,"  [or  other  spe- 
cial covenant,  as  the  case  may  be].  When 
general,  it  applies  to  lawful  adverse  claims 
of  all  persons  whatever;  when  special,  it 
applies  oidy  to  certain  persons  or  claims  to 
which  its  operation  is  limited  or  restricted ; 

2  Washb.  R.  P.  GG5.  See  a  form  in  Rawle, 
Cov.  §  21,  n. 

This  limitation  may  arise  from  the  nature 
of  the  subject-matter  of  the  grant ;  Tufts  v. 
Adams,  8  Pick.  (Mass.)  547;  Wheelock  v. 
Ilenshaw,  19  Pick.  (.Mass.)  341;  Patterson's 
Lessee  v.  Pease,  5  Ohio  190. 

Such  covenants  give  the  covenantee  and 
grantee  the  benefit  of  subsequently  acquired 
titles;  Jackson  v.  Matsdorf,  11  Johns.  (N. 
Y.)  91,  6  Am.  Dec.  335;  Brown  v.  McCormick, 
6  Watts  (Pa.)  GO,  31  Am.  Dec.  450;  Terrett 
v.  Taylor,  9  Cra.  (U.  S.)  43,  3  L.  Ed.  G50; 
Wark  v.  Willard,  13  N.  H.  389;  Patterson's 
Lessee  v.  Pease,  5  Ohio  190;  Somes  v.  Skin- 
ner, 3  Pick.  (Mass.)  52;  Lawry  v.  Williams, 
13  Me.  281 ;  to  the  extent  of  their  terms ; 
Blake  v.  Tucker,  12  Vt.  39:  Trull  v.  East- 
man, 3  Mete.  (Mass.)  121.  37  Am.  Dec.  12G; 
Jackson  v.  Hoffman,  9  Cow.  (X.  Y.)  271; 
Larrabee  v.  Larrabee,  34  Me.  4S3 ;  but  not  if 
an  interest  actually  passes  at  the  time  of 
making  the  conveyance  upon  winch  the  cove- 
nant may  operate;  Lewis  v.  Baird,  .">  Mc- 
Lean 5G,  Fed.  Cas.  No.  8,310 ;  Blanchard  v. 
Brooks,  12  Tick.  (Mass.)  47;  Wynn  v.  Har- 
mon's Devisees,  5  Gratt.  (Va.)  157;  i 
of  terms  for  years,  as  well  as  com 
greater  estates;  Wms.  R.  r.  229;  4  Kent  261, 
n. ;  Cro.  Car.  109;  Barney  v.  Keith,  1  Wend 
(X.  Y.)  H02 ;  as  against  the  grantor  and 
those  claiming  under  him;  2  Washb.  R.  p. 
479;  including  purchasers  for  value;  Bates 
v.  Norcross,  11  Pick.  (Mass.)  221:  Kimball 
v.  Blaisdell,  5  N.  H.  533,  22  Am.  Dec.  176; 
Allen  v.  Sayward,  5  Ale.  231,  17  Am.  Dec. 
221;  Jackson  v.  Murray.  12  Johns.  (X.  Y.) 
201;  Terrett  v.  Taylor,  9  Cra.  (U.  S.)  53,  3 
L.  Ed.  G50;  but  see  Jackson  v.  Bradford,  4 
Wend.  (X.  Y.)  G19.  And  this  principle  does 
not  operate"to  prevent  the  grantee's  action 


for  breach  of  the  covenant,  if  evicted  by  such 
title;    Jarvis  v.  Aikens,  25  VI  Curtis 

v.  Deering,  12  Me.  499.  Bee  Wheeler  v. 
Wheeb  r,  :;.;  Me  ;;17.  a  deed  of  land  is  not 
void   as  between   the  pai  of  a 

want  of  consideration,  and  such   want  is  no 
answer  to  an  action   upon  a  breach  of  cove- 
nant   of    warranty  ;     Comstock    v. 
389. 
In  case  of  a  release  of  right  and  title,  cove- 
nants   limited    to    those    claiming    under   the 
grantor  do  not  prevent   the  assertion   by  the 
grantor  of  a  subsequently  acquired  titi 
v.  Twilight.  26  X.  II.  401;   Jackson  r. 

1  Wend  i.n.  Y.)  300;  Doane  v.  Willcutt,  5 
Gray  (Mass.)  328,  66  Aia.  Dee.  369;  Kins- 
man's .  Loomis,  11  Ohio  47.1;  11am 
v.  Ham.  11  Me.  :,:. l  ;  Cole  v.  Persons  Un- 
known, 43  Me.  432;  <;•■    ..  Moore,  n  CaL  472. 

It  is  a  real  covenant,  and  runs  with  the 
estate  in  respect  to  which  it  is  made,  into 
the    hands   of    whoever    becomes    the    owner; 

2  Washb.  It.  P.  659;  Chal.  R.  P.  279;  Lau- 
rence v.  Senter,  4  Sneed  (Tenn. )  52:  Mar- 
bury  v.  Thornton,  82  \a.  702,  1  S.  E.  909; 
Succession  of  Cassidy,  4<>  La.  Ann.  827,  5 
South.  292;  against  the  covenantor  and  his 
personal  representatives  :  McClures'  Kx'rs  v. 
Gamble,  27  Pa.  288;  Carter  v.  Denman's 
Kx'rs,  23  x.  J.  L.  260;  see  Mygatt  v.  Coe,  1 12 
X.  Y.  78,  3G  X.  E.  870.  24  L.  R.  A.  850;  to  the 
extent  of  assets  received,  and  cannot  1  • 
ered  therefrom;   Lewis  v.  Cook,  :;.",  X.  C.  193. 

The  covenant  of  warranty  and  that  of 
seisin  or  of  right  to  convey  are  not  equiva- 
lent covenants.  Defect  of  title  will  sustain 
an  action  upon  the  latter,  while  disturbance 
of  possession  is  requisite  to  recover  upon 
the  former;    Douglass  v.  Lewis,  131  U.  S.  75, 

9  Sup.  Ct.  634,  33  L.  Ed.  53.  Grantors  hav- 
ing made  an  express  contract  of  warranty, 
cannot  set  up  knowledge  of  vice  in  their  ti- 
tle, to  exonerate  themselves  from  the  obliga- 
tion of  their  contract:  New  Orleans  v. 
Gaines,  13S  U.  S.  595,  11  Sup.  Ct  428,  34  L. 
Ed.  1102. 

The  action  for  breach   should   be  brought 
by  the  owner  of  the  land  and.  as  such,  as- 
signee of  the  covenant  at  the  time  it  is  bro- 
ken;   Bickford  v.  Page,  2  Mn-s.  455;    Elder 
v.  Elder,  10  Me.  81.  25  Am.  I  >ec.  205  :    '1 
son    v.    Sanders,    5   T.    B.    Monr.    (Ky.i   357; 
Chase  v.  Weston,  12  X.  IT.  413;    but  may  he 
by  the  original  covenantee,  if  he  has  satis- 
lied  the  owner:    Withy  v.  Mumford,  .". 
i\.    V.)    L37;     Wheeler   v.    S<  hii  :■.    :;    - 
(Mass. 1  222:    Thompson  v.  Sanders,  .">  'i".   B. 
Monr.   (Ky.)  .".-"7:     Booth   v.   Starr,   1   Conn. 
211.  6  Am  l'e  .  2:;::;  Markland  v.  Crump,  is 
N.  C.  94,  27  Am.  Dec.  230;   Redwine  v.  Brown, 

10  Ga.  311;    Si, nth  v.  Perry,   21;  Vt.  279. 
To  constitute  a  breach   there  must   I 

eviction  by  paramount  title;  Rawle,  Cov.  S 
131;  Fowler  v.  Poling,  <;  Barb.  (N.  Y.)  105 ; 
Evans  v.  Lewis,  5  Harr.  (Del.)  162;  Faries  v. 
Smith's  Adin'r,  11  Rich.   (S.  C.)  SO;    Norton 


COVENANT 


724 


COVENANTS  PERFORMED 


r.  Jackson,  5  Cal.  262;  Hannah  v.  Hender- 
son, 4  Ind.  174;  Picket's  Adin'r  v.  Picket's 
Adm'r,  6  Ohio  St  525;  Vancourt  v.  Moore, 
26  Mo.  92 ;  Moore  v.  Vail,  17  111.  185 ;  Reed 
v.  Pierce,  36  Me.  455,  58  Am,  Dec.  761;  Hig- 
gins  v.  Johnson,  14  Ark.  309,  60  Am.  Dec. 
544;  Cheney  v.  Straube,  35  Neb.  521,  53  N. 
W.  479;  McGregor  v.  Tabor  (Tex.)  26  S.  W. 
443;  Gleason  v.  Smith,  41  Vt  296;  which 
may  be  constructive;  Curtis  v.  Deering,  12 
Me.  499;  Moore  v.  Vail,  17  111.  185;  and 
it  is  sufficient  if  the  tenant  yields  to  the  true 
owner,  or  if,  the  premises  being  vacant,  such 
owner  takes  possession;  St.  John  v.  Palmer, 
5  Hill.  (N.  Y.)  599;  Hamilton  v.  Cutts,  4 
Mass.  3-19,  3  Am.  Dec.  222 ;  Beebe  v.  Swart- 
wout,  3  Gil.  (111.)  162;  Wilmington  &  R.  R. 
Co.  v.  Robeson,  27  N.  C.  393;  Ogden  v.  Ball, 
40  Minn.  94,  41  N.  W.  453 ;  Hodges  v.  Lath- 
am, 98  N.  C.  239,  3  S.  E.  495,  2  Am.  St.  Rep. 
333 ;  Succession  of  Cassidy,  40  La.  Ann.  827, 
5  South.  292;  McGary  v.  Hastings,  39  Cal. 
560,  2  Am.  Rep.  456 ;  Kellog  v.  Piatt,  33  N.  J. 
L.  328.  But  in  such  case  the  grantee  must 
prove  the  existence  and  assertion  of  such 
paramount,  outstanding,  hostile  title ;  Brown 
v.  Corson,  16  Or.  388,  19  Pac.  66,  21  Pac.  47 ; 
Claycomb  v.  Munger,  51  111.  377;  Crance  v. 
Collenbaugh,  47  Ind.  256;  Ryerson  v.  Chap- 
man, 66  Me.  557 ;  Merritt  v.  Morse,  108  Mass. 
276;  Smith  v.  Sprague,  40  Vt.  43;  and  as- 
sume the  burden  of  proof  with  as  much  par- 
ticularity as  if  suing  in  ejectment;  Rawle, 
Cov.  §  136;  Thomas  v.  Stickle,  32  la.  76; 
Westrope  v.  Chambers'  Estate,  51  Tex.  178 ; 
unless  the  adverse  right  has  been  established 
by  a  judgment  or  decree  in  a  suit  of  which 
the  covenantor  had  been  properly  notified; 
Rawle,  Cov.  §  136;  in  which  case  the  judg- 
ment or  decree  will  be  conclusive  evidence 
of  the  validity  of  the  paramount  title;  id. 
See  id.  §  123  et  seq. 

Exercise  of  the  right  of  eminent  domain 
does  not  render  the  covenantor  liable ;  Tay- 
lor v.  Young,  71  Pa.  83;  Kimball  v.  Semple, 
25  Cal.  452;  Raymond  v.  Raymond,  10  Cush. 
(Mass.)  134;  Brown  v.  Jackson,  3  Wheat. 
(U.  S.)  452,  4  L.  Ed.  432. 

When  the  covenantee  is  threatened  with 
eviction,  it  is  usual  and  proper  for  him  to 
give  notice  to  the  covenantor  to  appear  and 
defend  the  suit.  If  it  appears  on  the  record 
that  the  covenantor  received  the  notice  or 
if  he  defends  the  suit,  recovery  therein  will 
be  conclusive  against  him  in  an  action  by  the 
covenantee ;  otherwise  the  question  of  no- 
tice will  go  to  the  jury  on  the  facts.  If  no 
notice  was  given,  the  record  of  the  adverse 
suit  is  not  even  prima  facie  evidence  that  the 
adverse  title  was  paramount.  Notice  of  the 
adverse  suit  is  not  indispensable  to  a  recov- 
ery against  the  covenantor;  Rawle,  Cov.  § 
125. 

COVENANTS  PERFORMED.    A  plea  to  an 

action  of  covenant,  in  use  in  Pennsylvania, 
whereby  the  defendant,  upon  proper  notice 


to  the  plaintiff,  may  give  anything  in  evi- 
dence which  he  might  have  pleaded.  Bender 
v.  Fromberger,  4  Dall.  (U.  S.)  439,  1  L.  Ed. 
898;  Neave  v.  Jenkins,  2  Yeates  (Pa.)  107; 
Roth  v.  Miller,  15  S.  &  R.  (Pa.)  105.  And 
this  evidence,  it  seems,  may  be  given  in  the 
circuit  court  without  notice,  unless  called 
for ;  Webster  v.  Warren,  2  Wash.  C.  C.  456, 
Fed.  Cas.  No".  17,339. 

COVENANTEE.  One  in  whose  favor  a 
covenant  is  made.     Sbepp.  Touch.  150. 

COVENANTOR.  One  who  becomes  bound 
to  perform  a  covenant, 

COVENTRY  ACT.  The  common  name  for 
the  statute  22  &  23  Car.  II.  c.  1,— It  having 
been  enacted  in  consequence  of  an  assault  on 
Sir  John  Coventry  in  the  street,  and  slitting 
his  nose,  in  revenge,  as  was  supposed,  for 
some  obnoxious  words  uttered  by  him  in  par- 
liament 

By  this  statute  it  is  enacted  that  if  any 
person  shall,  of  malice  aforethought,  and 
by  lying  in  wait,  unlawfully  cut  or  disable 
the  tongue,  put  out  an  eye,  slit  the  nose,  cut 
off  the  nose  or  lip,  or  cut  off  or  disable  any 
limb  or  member,  of  any  other  person,  with 
intent  to  maim  or  disfigure  him,  such  per- 
son, his  counsellors,  aiders,  and  abettors, 
shall  be  guilty  of  felony  without  benefit  of 
clergy.  The  act  was  repealed  by  9  Geo.  IV. 
c.  31. 

COVERING  DEED.  A  trust  deed  executed 
by  a  trading  company  to  secure  an  issue  of 
debentures. 

Such  deed  usually  contains  a  conveyance 
to  the  trustees  of  the  holders  of  debentures 
or  debenture  stock  with  provisions  authoriz- 
ing the  company  to  retain  possession  and 
carry  on  the  business  until  forfeiture.  Sim- 
onson,  Debentures,  38.  It  corresponds  to  the 
general  corporation  mortgage  to  secure  an 
issue  of  bonds,  as  used  in  this  country.  They 
did  not  formerly  include  a  charge  on  per- 
sonal chattels  because  of  decisions  that  trust 
deeds  containing  charges  on  personalty  must 
be  framed  and  registered  under  the  Bills  of 
Sales  acts;  34  Ch.  Div.  43;  but  it  having 
been  held  that  a  covering  deed  is  not  subject 
to  the  registration  provisions ;  (1S91)  1  Ch. 
(C.  A.)  627;  (1896)  2  Ch.  212;  they  now 
usually  contain  such  a  charge;  Simonson, 
Debentures,  39.     See  Debentube. 

COVERT  BARON.  A  wife.  So  called 
from  being  under  the  protection  of  her  hus- 
band, baron,  or  lord.    1  Bla.  Com.  442. 

COVERTURE.  The  condition  or  state  of 
a  married  woman. 

During  coverture  the  civil  existence  of  the 
wife  is,  for  many  purposes,  merged  in  that 
of  her  husband;  2  Steph.  Com.  263.  See 
Abatement;  Pasties;  Married  Women. 

COVIN.  A  secret  contrivance  between  two 
or  more  persons  to  defraud  and  prejudice  an- 
other in  his  rights.    Co.  Litt  357  6;  Comyns, 


COVIN 


725 


CREATE 


Dig.  Covin,  A;  1  Viner,  Abr.  473;  Mix  v. 
Muzzy,  28  Conn.  186.  See  Collusion;  De- 
ceit; Fraud. 

COW.  In  a  penal  statute  which  mentions 
both  cows  and  heifers,  it  was  held  that  by 
the  term  cow  must  be  understood  one  that 
had  had  a  calf.  2  East,  PL  Cr.  616;  1  Leach 
105.  See  Taylor  v.  State,  6  Humph.  (Tenn.) 
285. 

COWARDICE.  Pusillanimity;  fear;  mis- 
behavior through  fear  in  relation  to  some 
duty  to  be  performed  before  an  enemy. 
O'Brien,  Court  M.  142. 

By  both  the  army  and  navy  regulations 
of  the  United  States  this  is  an  offence  punish- 
able in  officers  or  privates  with  death,  or 
such  other  punishment  as  may  be  inflicted 
by  a  court-martial ;   Rev.  Stat.  §§  1342,  1624. 

CRAFT.  Art  or  skill;  dexterity  in  par- 
ticular manual  employment,  hence  the  oc- 
cupation or  employment  itself;  manual  art; 
a  trade.     Webster. 

This  word  is  also  now  applied  to  all  kinds 
of  sailing  vessels.  Owners  of  the  Wenonah 
v.  Bragdon,  21  Gratt.  (Va.)  693.  See  23  L. 
J.  Rep.  156 ;   3  El.  &  Bl.  888. 

CRANAGE.  A  toll  paid  for  drawing  mer- 
chandise out  of  vessels  to  the  wharf;  so 
called  because  the  instrument  used  for  the 
purpose  is  called  a  crane.    8  Co.  46. 

CRASTINUM,  CRASTINO  (Lat.  to-morrow). 
On  the  day  after.  The  return  clay  of  writs 
is  made  the  second  day  of  the  term,  the  first 
day  being  some  saint's  day,  which' gives  its 
name  to  the  term.  In  the  law  Latin,  crastino 
(the  morning,  the  day  after)  would  then  de- 
note the  return  day.  2  Reeve,  Hist.  Eng. 
Law  56.  In  the  United  States  the  return 
day  is  the  first  day  of  the  term. 

CRAVE.    To  ask;   to  demand. 

The  word  is  frequently  used  in  pleading: 
as,  to  crave  oyer  of  a  bond  on  which  the  suit 
is  brought;  and  in  the  settlement  of  accounts 
the  accountant-general  craves  a  credit  or  an 
allowance.    1  Chit.  Pr.  520.    See  Oyeb. 

CRAVEN.  A  word  denoting  defeat,  and 
begging  the  mercy  of  the  conqueror. 

It  was  used  (when  used)  by  the  vanquished  party 
In  trial  by  battle.  Victory  was  obtained  by  the 
death  of  one  of  the  combatants,  or  if  either  cham- 
pion proved  recreant,— that  is,  yielded,  and  pro- 
nounced the  horrible  word  "craven."  Such  a  person 
became  infamous,  and  was  thenceforth  unfit  to  be 
believed  on  oath.  3  Bla.  Com.  340.  See  Wageb  of 
Battel. 

CREANCE.  In  French  Law.  A  claim; 
a  debt ;  also  belief,  credit,  faith.  1  Bouvier, 
Inst.  n.  1040. 

CREANSOR.     A  creditor.     Cowell. 

CREATE.  To  create  a  charter  is  to  make 
an  entirely  new  one,  and  differs  from  renew- 
ing, extending,  or  continuing  an  old  one. 
Moers  v.  City  of  Reading,  21  Pa.  1S8;  Peo- 
ple v.  Marshall,  1  Gilm.  (111.)  672;    Syracuse 


City  Bank  v.  Davis,  16  Barb.  (N.  T.)  188.  See 
McClellan  v.  McClellan,  65  Me.  500;  Palmer 
v.  Preston,  45  Vt.  154,  12  Am.  Rep.  191. 

CREDENTIALS.      In      International      Law. 
The  instruments  which  authorize  and  • 
lish  a  public  minister  in  bis  character  with 
the   state  or   prince   to    whom   they   are  ad- 
1.     If  the  state  or  prince  receive  the 
minister,  he  can  be  received  only  in  the  qual- 
ity attributed  to  him  in  his  credentials, 
are   as   it   were   his   letter   of   attorney,    his 
mandate     patent,     mandatum     manifestum. 
Vattel,  liv.  4,  c.  6,  §  76.     See  Full  Po 
Letter  of  Credence. 

CREDIBILITY.      Worthiness     o« 
The  credibility  of  witnesses  Ls  a  que  Ron  for 

the  jury  to  determine,  as  their  compi 
is  for  the  court ;    Best,  Ev.  §  76 ;    1  Greenl. 
Ev.   §§  49,  425;    Tayl.   Ev.   1257.     See   Im- 
peachment. 

CREDIBLE  WITNESS.  One  who,  being 
competent  to  give  evidence,  is  worthy  of  be- 
lief. Armory  v.  Fellowes,  5  Mass.  229 ;  - 
Curt.  EccL  336. 

In  deciding  upon  the  credibility  of  a  witness,  it  is 
always  pertinent  to  consider  whether  he  is  capable 
of  knowing  thoroughly  the  thing  about  which  he 
testifies ;  whether  he  was  actually  present  at  the 
transaction;  whether  he  paid  sufficient  attention  to 
qualify  himself  to  be  a  reporter  of  it;  and  whether 
he  honestly  relates  the  affair  fully  as  he  knows  it, 
without  any  purpose  or  desire  to  deceive,  or  to  sup- 
press or  add  to  the  truth. 

In  some  of  the  states,  wills  must  be  attested  by 
credible  witnesses.  In  several  of  the  states,  credi- 
ble witness  is  used,  in  certain  connections,  as  synon- 
ymous with  competent  witness,  and  in  Connecticut, 
in  a  statute  providing  for  the  certification  of  copies 
of  records,  it  refers  to  a  witness  giving  testimony 
under  the  sanction  of  the  witness's  oath  ;  Dibble  v. 
Morris,  26  Conn.  41G  ;  Hall  v.  Hall,  18  Ga.  40;  Gar- 
land v.  Crow's  Ex'rs,  2  Bail.  (S.  C.)  24;  Hawes  v. 
Humphrey,  9  Pick.  (Mass.)  350,  20  Am.  Dec.  481; 
Sears  v.  Dillingham,  12  Mass.  353;  Fuller  v.  FulUr, 
83  Ky.  350  ;  Lord  v.  Lord,  5S  N.  H.  8,  42  Am.  Rep. 
565;     Jarm.   Wills,  124. 

See  Witness. 

CREDIT.  The  ability  to  borrow,  on  the 
opinion  conceived  by  the  lender  that  he  will 
be  repaid. 

A  debt  due  in  consequence  of  a  contract 
of  hire  or  borrowing  of  mouey. 

The  time  allowed  by  the  creditor  for  the 
payment  of  goods  sold  by  him  to  the  debtor. 

That  which  is  due  to  a  merchant,  as  dis- 
tinguished from  debit,  that  which  is  due  by 
him. 

That  influence  connected  with  certain  so- 
cial positions.    20  Toullier,  n.   !'.». 

In  a  statute  making  credits  the  subject  ef 
taxation,  the  term  is  held  to  mean  the  ex- 
cess of  the  sum  of  all  legal  claims  and  de- 
mands, whether  for  money  or  other  valuable 
thing,  or  for  labor  or  services,  due  or  to  be- 
come due  to  the  person  liable  to  pay  taxes 
thereon,  when  added  together  (estimati 
ery  such  claim  or  demand  at  its  true  value 
in  money)  over  and  above  the  sum  of  all  le- 
gal bona  fide  debts  owing  by  such  person; 
Payne  v.  Watterson,  37  Ohio  St  123. 


CREDIT 


726 


CREDITORS'  BILL 


See,  generally,  5  Taunt.  338;  Dry  Dock 
Bank  v.  Trust  Co.,  3  N.  Y.  344;  Rindge  v. 
Jud.son,  24  N.  Y.  64,  71 ;  People  v.  Loan  Soc, 
51  Cal.  243,  21  Am.  Rep.  704. 

As  to  the  "full  faith  and  credit"  to  be 
given  in  one  state  to  the  records,  etc.,  of 
another  state,  see  Foreign  Judgments. 

CREDIT,  BILL   OF.     See  Bill  of  Credit. 

CREDIT  INSURANCE.     See  Insurance. 

CREDITOR.  He  who  has  a  right  to  re- 
quire the  fulfillment  of  an  obligation  or  con- 
tract. 

A  person  to  whom  any  obligation  is  due. 
New  Jersey  Ins.  Co.  v.  Meeker,  37  N.  J.  L. 
300.  See  Pettibone  v.  Roberts,  2  Root  (Conn.) 
261. 

Preferred  creditors  are  those  who,  in  con- 
sequence of  some  provision  of  law,  are  en- 
titled to  some  special  privilege  in  the  order 
in  which  their  claims  are  to  be  paid. 

CREDITOR,  JUDGMENT.  One  who  has 
obtained  a  judgment  against  his  debtor,  un- 
der which  he  can  enforce  execution. 

CREDITORS'BILL.  A  bill  in  equity,  filed 
by  one  or  more  creditors,  for  the  purpose  of 
collecting  their  debts  out  of  assets,  or  under 
circumstances  as  to  which  an  execution  at 
law  would  not  be  available. 

It  is  a  proceeding  in  rem,  to  make  effective 
a  judgment  against  the  debtor's  property 
which  is  concealed ;  Houghton  &  Co.  v.  Axels- 
son,  64  Kan.  274,  67  Pac.  825.  Such  bills  are 
usually  filed  by  and  on  behalf  of  the  complain- 
ant and  all  other  creditors  who  shall  come 
in  under  the  decree.  They  may  be  either 
against  the  debtor  in  his  lifetime  or  for  an 
account  of  the  assets  and  a  due  settlement 
of  the  estate  of  a  decedent. 

They  are  divided  by  Bispham  (Equity)  into 
two  classes,  numbered  in  the  order  here  stat- 
ed. In  bills  of  the  second  class,  or  those 
which  in  effect  seek  for  the  administration  of 
a  decedent's  estate,  the  usual  decree  against 
the  executor  or  administrator  is  quod  com- 
putet; it  directs  the  master  to  take  the  ac- 
counts between  the  deceased  and  all  his  cred- 
itors, and  to  cause  the  creditors,  upon  due 
public  notice,  to  come  before  him  to  prove 
their  debts,  and  to  take  an  account  of  all 
the  personal  estate  of  the  deceased  in  the 
hands  of  the  executor  or  administrator,  and 
the  same  to  be  applied  in  payment  of  the 
debts  and  other  charges  in  a  due  course  of 
administration ;    1   Story,    Eq.   Jur.   546. 

Generally  speaking,  this  jurisdiction  has 
been  transferred  to  probate  courts  in  most 
of  the  states,  but  in  some  states  the  original 
jurisdiction  of  equity  over  the  administration 
of  estates  remains  unabridged  by  the  stat- 
utes and  is  concurrent  with  that  of  probate 
courts.     See  3  Pom.  Eq.  Jur.  §  1154. 

Creditors'  suits  of  the  other  class  are 
brought  while  the  debtor  is  living  and  for 
the  collection  of  a  debt  against  him.  This 
jurisdiction  had  its  origin  in  the  inadequacy 


of  common-law  remedies  by  writs  of  exe- 
cution. These  writs  at  common  law  often 
did  not  extend  to  estates  and  interests  which 
were  equitable  in  their  nature,  and  creditors' 
suits  were  therefore  permitted  to  be  brought 
where  the  relief  at  common  law  by  execution 
was  ineffectual,  as  for  the  discovery  of  as- 
sets, to  reach  equitable  and  other  interests 
not  subject  to  levy  and  sale  at  law,  and  to 
set  aside  fraudulent  conveyances. 

Statutes  in  England  and  America  have  ex- 
tended the  common-law  remedies  and  pro- 
vided adequate  legal  relief  in  many  cases 
where  formerly  a  resort  to  equity  was  neces- 
sary;  Pom.  Eq.  Jur.  §  1415. 

The  jurisdiction  of  chancery  in  suits 
brought  by  judgment  creditors  to  enforce  the 
collection  of  their  judgments,  after  having 
exhausted  their  remedy  at  law,  although  it 
may  have  previously  existed,  is  in  some 
states  expressly  declared  and  defined  by  stat- 
utes. 

Before  a  creditor  can  resort  to  the  equi- 
table estate  of  his  debtor,  he  must  first  ob- 
tain judgment  and  seek  to  collect  the  debt 
by  execution  ;  exhausting  his  remedy  at  law ; 
Scott  v.  Neely,  140  U.  S.  106,  11  Sup.  Ct.  712, 
35  L.  Ed.  358;  Taylor  v.  Bowker,  111  U.  S. 
110,  4  Sup.  Ct.  397,  28  L.  Ed.  368 ;  Newman  v. 
Willetts,  52  111.  98;  Lawson's  Ex'r  v.  Grubbs's 
Adm'r,  44  Ga.  466;  and  it  must  appear 
that  a  judgment  has  been  recoyered,  execu- 
tion issued  thereon  and  returned  "nulla  bo- 
na;" Preston  v.  Colby,  117  111.  477,  4  N.  E. 
375;  Taylor  v.  Bowker,  111  U.  S.  110,  4 
Sup.  Ct.  397,  28  L.  Ed.  368 ;  but  this  rule  is 
said  to  be  too  general ;  3  Pom.  Eq.  Jur.  § 
1415 ;  it  probably  would  not  apply  where  the 
judgment  was  a  lien;  id.;  Fleming  v.  Graf- 
ton, 54  Miss.  79 ;  and  in  the  federal  court  the 
objection  that  the  claim  has  not  been  re- 
duced to  judgment  can  be  raised  only  by  de- 
fendant and  may  be  waived;  Pennsylvania 
Steel  Co.  v.  Ry.  Co.,  157  Fed.  440.  A  judg- 
ment cannot  be  questioned  upon  a  creditor's 
bill  brought  to  secure  its  payment ;  Matting- 
ly  v.  Nye,  8  Wall.  (U.  S.)  370,  19  L.  Ed.  380. 

In  a  few  jurisdictions  the  equitable  rule 
has  been  changed  by  statute,  so  that  suits  to 
set  aside  fraudulent  conveyances  may  be 
maintained  by  simple  contract  creditors ; 
Builders'  &  Painters'  Supply  Co.  v.  Bank, 
123  Ala.  203,  26  South.  311;  Riggin  v.  Hil- 
lard,  56  Ark.  476,  20  S.  W.  402,  35  Am.  St. 
Rep.  113;  Huntington  v.  Jones,  72  Conn.  45, 
43  Atl.  564 ; .  Phelps  v.  Smith,  116  Ind.  399, 
17  N.  E.  602,  19  N.  E.  156 ;  Balls  v.  Balls,  69 
Md.  38S,  16  Atl.  18;  Sandford  v.  Wright, 
164  Mass.  85,  41  N.  E.  120 ;  Dawson  Bank  v. 
Harris,  84  N.  C.  206;  Greene  v.  Starnes,  1 
Heisk.  (Tenn.)  5S2 ;  S  to  vail  v.  Bank,  78  Va. 
188 ;  Frye  v.  Miley,  54  W.  Va.  324,  46  S.  E. 
135.  A  judgment  of  a  court  of  record  is  or- 
dinarily sufficient:  Chalmers  v.  Sheehy,  132 
Cal.  459,  64  Pac.  709,  84  Am.  St.  Rep.  62; 
Schaible  v.  Ardner,  98  Mich.  70,  56  N.  ^W. 


CREDITORS'  BILL 


727 


CREDITORS'  BILL 


1105;  Thorp  v.  Leibrecht,  50  N.  J.  Eq.  499, 
39  Atl.  301;  but  a  judgment  may  be  dis- 
pensed with  when  a  creditor  desires  to  rea<  b 
assets  of  a  deceased  debtor  ;  Mallow  v.  Walk- 
er, 115  la.  238,  88  N.  W.  452,  91  Am.  St.  Rep. 
158;  or  when  a  debtor  has  absconded  and 
cannot  be  found  within  the  state;  First  Nat 
Bank  of  Riverside  v.  Eastman,  144  Cal.  487, 
77  l'ac.  1043,  103  Am.  St.  Rep.  95,  1  Ann. 
Cas.  020;  Quail  v.  Abbett,  102  Ind.  234,  1 
N.  E.  470,  52  Am.  Rep.  662;  or  where  the 
debtor  is  insolvent  and  the  claim  is  undis- 
puted; Talley  v.  Curtain,  54  Fed.  43,  4  0. 
C.  A.  177.  An  attachment  which  creates  a 
lien  upon  real  property  may  be  the  founda- 
tion of  a  creditor's  bill  to  set  aside  a  fraud- 
ulent conveyance;  Chicago  &  A.  Bridge  Co. 
v.  Packing  Co.,  46  Fed.  5S4 ;  Evans  v.  Lough- 
ton,  09  Wia  138,  33  N.  W.  573.  Where  exe- 
cution after  judgment  is  necessary  to  form 
part  of  basis  for  a  bill,  it  should  be  directed 
to  and  returned  either  from  the  county  where 
the  judgment  was  obtained  or  where  the 
debtor  resides;  Nashville,  C.  &  St  L.  R.  Co. 
v.  Mattingly,  101  Ky.  219,  40  S.  W.  073; 
Illinois  Malleable  Iron  Co.  v.  Graham,  55  111. 
App.  206. 

Creditors  cannot  attack  the  interest  of 
third  parties,  alleged  to  have  been  obtained 
by  fraud,  until  they  have  gained  a  standing 
in  court  by  legal  proceedings;  Scott  v.  Cham- 
bers, 62  Mich.  532,  29  N.  W.  94;  Goode  v. 
Garrity,  75  la.  713,  3S  N.  W.  150;  Tift  v. 
Collier,  78  Ga.  194,  2  S.  E.  943 ;  McMurt  ry  v. 
Masonic  Temple  Co.,  SO  Ky.  206,  5  S.  W.  570. 

Judgments  of  the  federal  court  cannot  be 
made  the  basis  of  a  creditor's  bill  in  a  state 
court;  Winslow  v.  Leland,  128  111.  301,  21 
X.  E.  5S8;  contra,  First  Nat.  Bank  of  Chi- 
cago v.  Sloman,  42  Neb.  350,  60  N.  W.  5S9, 
47  Am.  St.  Rep.  707;  Chicago  &  A.  Bridge 
Co.  v.  Fowler,  55  Kan.  17,  39  Pac.  727.  The 
plaintiff  in  a  creditor's  bill  is  not  concluded 
by  sworn  answer  of  defendant;  Edwards  v. 
Rodgers,  41  111.  App.  405. 

A  creditor's  bill  is  not  maintainable 
against  a  debtor  and  his  fraudulent  grantee, 
after  the  return  of  an  execution  satisfied; 
Davis  v.  Walton,  SO  Me.  401,  15  Atl.  48.  A 
judgment  creditor's  bill  may  be  framed  for 
the  double  purpose  of  aiding  an  execution 
and  to  reach  property  not  open  to  execution ; 
Vanderpool  v.  Notley,  71  Mich.   131,   12  N.  W. 

eso. 

The  debtor  should  be  made  a  party  :  U.  S.  v. 
Howland.  4  Wheat.  (U.  S.)  108,  4  L.  Ed.  526; 
the  person  who  has  possession  of  the  property 
sought  to  be  reached  must  be  joined;  Dob- 
bins v.  Coles.  59  N.  J.  Eq.  SO,  45  Atl.  444; 
and  in  general  all  who  have  interests  which 
will  be  affected  by  the  decree  in  the  property 
sought  to  be  reached  must  be  made  parties; 
State  v.  Superior  Court,  14  Wash.  686,  45 
Pac.  670;  Marshall's  Ex'r  v.  Hall.  -IU  W.  Va. 
641,  20  S.  E.  300.  A  single  creditor  may  hie 
a  bill  on  his  own  behalf  and  he  is  entitled  to 


retain  the  priority  thereby  gained  over  other 
creditors;    Senter  v.  Williams,  61  Ark.   189, 
31'  S.  W.  490,  54   Am.    St.    Rep.  200;    Puliis 
v.    Robison,   73   Mo.    201,   39   Am.    Rep.    497; 
Clark  v.  Figgins,  31  W.  Va.  137,  5  S.  i 
13   Am.    St.    Rep.    800    (contra,    where   other 
creditors  intervene;    Johnston  v.  Papi •: 
L53  Pa.  189,  25  Atl.  560,  885);   except  in  cer- 
tain suits,  where  a  trust  or  quasi-trust  exists 
tor  all  creditors;    lauch  v.  De  Socarn 
N.  J.  Eq.  524,  39  Atl.  381;    Coddingtoo  v. 
Bispham's  Ex'rs,  36  N.  J.  Eq.  574;   Raker  v. 
Kinnaird,  94  Ky.  5,  21  S.  w.  237;    Day  v. 
Washburn,  24  How.  (U.  S.)  355,  16  L.  Ed.  712. 

It  is  the  tiling  of  the  bill  and  service  of 
process  after  the  return  of  execution  which 
gives  the  plaintiff  a  specific  lien  ;  Iliues  v. 
Duncan,  7'.)  Ala.  112,  5S  Am.  Rep.  580;  Keith 
v.  Porter,  119  Mich.  365,  78  N.  W.  ::. 
Am.  St  Rep.  402. 

A  court  of  equity  has  jurisdiction  to  seq- 
uestrate property  in  a  creditor's  suit,  where 
the  bill  charges  fraud  as  well  as  in- 
cy;  Robinson  v.  Ins.  Co.,  102  Fed.  794. 
Intangible  property  can  be  reached  by  cred- 
itor's bill,  such  as  patents  and  copyrights; 
Stephens  v.  Cady,  14  How.  (U.  S.)  52S,  14  L. 
Ed.  528;  Ager  v.  Murray,  105  U.  S.  126,  26 
L.  Ed.  942 ;  probably  the  majority  rule  is 
that,  in  the  absence  of  statutory  authoriza- 
tion, a  creditor's  bill  cannot  reach  choses 
in  action  unless  the  case  presents  some  inde- 
pendent ground  of  equity  jurisdiction;  Greene 
v.  Keene,  14  R.  I.  3S8,  51  Am.  Rep.  400. 

Alimony  awarded  to  a  wife  cannot  be  ap- 
plied by  creditor's  bill  to  the  payment  of  a 
debt  contracted  before  the  decree  of  divorce ; 
Romaine  v.  Channcey,  129  N.  Y.  GUM,  29  N.  E. 
S2G,  14  L.  R.  A.  712,  26  Am.  St.  Rep.  544 ;  a 
contingent  interest,  such  as  devise  under  a 
will,  may  be  subjected  to  the  payment  of 
debts;  Jacob  v.  Howard  (Ky.)  22  S.  W.  332; 
so  of  any  equitable  interest;  Galveston,  II.  «.V 
S.  A.  R.  R.  Co.  v.  McDonald,  53  Tex.  510. 
Fraudulent  transfers  of  personalty  may  be 
set  aside,  but  the  bill  is  seldom  used  for  this 
purpose,  the  general  practice  being  to  levy 
on  personal  property  and  determine  the  own- 
ership by  action  of  replevin;  O'Brien  v. 
Stambach,  101  la.  40,  09  N.  W.  1133,  «',:;  Am. 
St  Rep.  368;  Pierstoff  v.  Jorges,  86  Wis. 
12S,  50  N.  W.  7::.~>.  39  Am.  St.  !'  High- 

ley  v.  Rank,  lsr>  111.  ^65,  57  N.  E.  436. 

Motives  of  public  policy  prohibit  a  bill  to 
reach  the  salary  of  a  state  official;  Bank  of 
Tennessee  v.  Dibrell,  •".  Sneed  (Tenn.)  .".T'.t: 
or  of  an  employe  of  a  municipal  corporation: 
Addyston  Pipe  Co.  v.  City  of  Chicago,  17<» 
HI.  580,  48  X.  i:.  967,  it  L.  K.  A.  405;  Mor- 
gan v.  Rust,  loo  Ga.  346,  28  s.  ]■:.  n:>:  but 
if  the  court  can  ascertain  that  no  inconven- 
ience can  result  to  the  public  in  a  given 
the  suit  may  be  maintained;  Rerton  v.  An- 
derson, 56  Ark.  476,  20  S.  w.  250;  Knight  \. 
Nash,  22  .Minn.  452;  Pendleton  v.  Perkins.  49 
Mo.  505.    There  are  various  statutory  exemp- 


CREDITORS'  BILL 


"28 


CREEK  NATION 


tions,  such  as  homesteads;  Jayne  v.  Hyiner, 
66  Neb.  785,  92  N.  W.  1019;  Hines  v.  Dun- 
can, 79  Ala.  112,  58  Am.  Rep.  5S0.  Money  in 
custodia  legis,  as  in  the  hands  of  a  clerk  of 
court  in  his  official  capacity,  cannot  be  made 
the  subject  of  a  creditor's  bill ;  Anheuser- 
Busch  Brewing  Ass'n  v.  Hier,  52  Neb.  424, 
72  N.  W.  588;  U.  S.  v.  Eisenbeis,  88  Fed.  4. 
A  creditor's  bill  will  lie  against  municipal 
corporation,  though  the  same  be  not  subject 
to  garnishment.  See  Addison  Pipe  &  Steel 
Co.  v.  Chicago,  28  Chicago  Leg.  News  256. 

State  statutes  authorizing  suits  in  the  na- 
ture of  creditors'  bills  against  corporations 
do  not  give  the  federal  courts  jurisdiction  to 
entertain  such  suits  when  the  creditor  has  not 
first  exhausted  his  legal  remedy,  since  the 
equity  jurisdiction  of  thofee  courts  cannot  be 
enlarged  by  a  state  statute;  Morrow  Shoe 
Mfg.  Co.  v.  Shoe  Co.,  60  Fed.  341,  8  C.  C.  A. 
652,  24  L.  R.  A.  417 ;  nor  will  such  a  bill  lie 
to  obtain  the  seizure  of  the  property  of  an 
insolvent  corporation  which  has  failed  to  col- 
lect stock  subscriptions  and  executed  an  il- 
legal trust  deed,  as  these  facts  do  not  change 
the  rule  of  those  courts  that  simple  contract 
creditors  cannot  obtain  the  aid  of  equity  to 
effect  the  seizure  of  the  debtor's  property  and 
its  application  to  their  claims;  Hollins  v. 
Coal  &  Iron  Co.,  150  U.  S.  371,  14  Sup.  Ct. 
127,  37  L.  Ed.  1113.  But  see  Atlanta  &  F.  R. 
Co.  v.  Ry.  Co.,  35  Cent.  L.  J.  207. 

See  Bisph.  Eq.  525-528;  Richmond  v.  Irons, 
121  U.  S.  44,  7  Sup.  Ct.  788,  30  L.  Ed.  S64; 
4  Harv.  L.  Rev.  99 ;    5  id.  101 ;   Ad.  Eq.  250. 

CREEK.  Such  small  inlets  of  the  sea, 
whether  within  the  precinct  or  extent  of  a 
port  or  without,  as  are  narrow  passages,  and 
have  shore  on  either  side  of  them.  Callis, 
Sew.  56;    5  Taunt.  705. 

Such  inlets  that  though  possibly  for  their 
extent  and  situation  they  might  be  ports, 
yet  are  either  members  of  or  dependent  upon 
other  ports. 

In  England  the  name  arose  thus.  The  king  could 
not  conveniently  have  a  customer  and  comptroller 
in  every  port  or  haven.  But  such  custom-officers 
were  fixed  at  some  eminent  port ;  and  the  smaller 
adjacent  ports  became  by  that  means  creeks,  or  ap- 
pendants of  that  port  where  these  custom-officers 
were  placed.  1  Chit.  Com.  Law,  726;  Hale,  de  Porti- 
lus  Maris,  pt.  2,  c.  1,  vol.  1,  p.  46;  Comyns,  Dig. 
Navigation  (C);    Callis,  Sew.  34. 

A  small  stream,  less  than  a  river.  Baker 
v.  Boston,  12  Pick.  (Mass.)  184,  22  Am.  Dec. 
421 ;   Schermerhorn  v.  R.  Co.,  38  N.  Y.  103. 

A  creek  passing  through  a  deep  level  marsh 
and  navigable  by  small  craft,  may,  under 
legislative  authority,  be  obstructed  by  a  dam, 
or  wholly  filled  up  and  converted  into  house- 
lots, — such  obstructions  not  being  in  conflict 
with  any  act  of  congress  regulating  com- 
merce; Willson  v.  Marsh  Co.,  2  Pet.  (U.  S.) 
245,  7  L.  Ed.  412;  Com.  v.  Charlestown,  1 
Pick.  (Mass.)  180,  11  Am.  Dec.  161;  Rowe  v. 
Bridge  Corp.,  21  Pick.  (Mass.)  344;  Charles- 
town  v.  County  Com'rs,  3  Mete.  (Mass.)  202; 
Glover  v.  Powell,  10  N.  J.  Eq.  211. 


CREEK  NATION.    See  Indian  Tribe. 

CREMATION.  The  act  or  practice  of  re- 
ducing a  corpse  to  ashes  by  means  of  fire. 
Act  Pa.  1891,  June  8 ;   P.  L.  212. 

To  burn  a  dead  body  instead  of  burying 
it  is  not  a  misdemeanor  unless  it  is  so  done 
as  to  amount  to  a  public  nuisance.  If  an 
inquest  ought  to  be  held  upon  a  dead  body 
it  is  a  misdemeanor  so  to  dispose  of  the 
body  as  to  prevent  the  coroner  from  holding 
an  inquest;  L.  R.  12  Q.  B.  D.  247.  In  L.  R. 
20  Ch.  D.  659,  it  was  doubted  as  to  whether 
it  is  lawful  to  burn  a  body,  but  the  question 
was  not  decided.  See  43  Alb.  L.  J.  140.  See 
Dead  Body. 

CREMENTUM  C0MITATUS.  The  in- 
crease of  the  county.  The  increase  of  the 
king's  rents  above  the  old  vicontiel  rents  for 
which  the  sheriffs  were  to  account.  Whar- 
ton, Diet. 

CREPUSCULUM.  Daylight;  twilight.  The 
light  which  immediately  precedes  or  follows 
the  rising  or  setting  of  the  sun.  4  Bla.  Com. 
224.  Housebreaking  during  the  period  in 
which  there  is  sunlight  enough  to  discern  a 
person's  face  (crepuscidum)  is  not  burglary ; 
Co.  3d  Inst.  63 ;  1  Russell,  Cr.  820 ;  3  Greenl. 
Ev.  §  75. 

CRETI0.  Time  for  deliberation  allowed 
an  heir  (usually  100  days),  to  decide  whether 
he  would  or  would  not  take  an  inheritance. 
Calvinus,  Lex. ;   Taylor,  Gloss. 

CREW.  The  word  crew  used  in  a  statute 
in  connection  with  master,  includes  officers  as 
well  as  seamen.  U.  S.  v.  Winn,  3  Sumn.  209, 
Fed.  Cas.  No.  16,740;  U.  S.  v.  Winn,  1  Law 
Rep.  63,  Fed.  Cas.  No.  16,739a.  Sometimes 
also  the  master  is  included ;  Millaudon  v. 
Martin,  6  Rob.  (La.)  534;  but  a  passenger" 
would  not  be ;  U.  S.  v.  Libby,  1  W.  &  M.  231, 
Fed.  Cas.  No.  15,597.     See  Full  Ckew. 

CRIER  (Norman,  to  proclaim).  An  officer 
whose  duty  it  is  to  make  the  various  proc- 
lamations in  court,  under  the  direction  of  the 
judges.  The  office  of  crier  in  chancery  is 
now  abolished  in  England.     Wharton. 

CRIM.  CON.  An  abbreviation  for  crim- 
inal conversation,  of  very  frequent  use,  de- 
noting adultery,  unlawful  sexual  intercourse 
with  a  married  woman.  Bull.  N.  P.  27 ;  Ba- 
con, Abr.  Marriage  (E)  2;  Nixon  v.  Brown, 
4  Blackf.  (Ind.)  157;   3  Bla.  Com.  139. 

The  term  is  used  to  denote  the  act  of  adul- 
tery in  a  suit  brought  by  the  husband  of  the 
married  woman  with  whom  the  act  was  com- 
mitted, to  recover  damages  of  the  adulterer. 
That  the  plaintiff  connived  at  or  assented  to 
his  wife's  infidelity,  or  that  he  prostituted 
her  for  gain,  is  a  complete  answer  to  the  ac- 
tion. But  the  fact  that  the  wife's  character 
for  chastity  was  bad  before  the  plaintiff  mar- 
ried her,  that  he  lived  with  her  after  he  knew 
of  the  criminal  intimacy  with  the  defendant 
that  he  had  connived  at  her  intimacy  with 


CRIM.  CON. 


729 


CRIME 


other  men,  or  that  the  plaintiff  had  been  false 
to  his  wife,  only  go  in  mitigation  of  dam- 
ages; Sanborn  v.  Neilson,  4  N.  H.  501 ;  Sher- 
wood v.  Titman,  55  Pa.  77;  as  will  the  fact 
that  the  wife  willingly  consented  or  threw 
herself  in  the  way  of  her  paramour ;  Fergu- 
son v.  Smethers,  70  Ind.  520,  36  Am.  Rep. 
186. 

The  wife  cannot  maintain  an  action  for 
criminal  conversation  with  her  husband; 
and  for  this,  among  other  reasons,  because 
her  husband,  who  is  particeps  orimints,  must 
be  joined  with  her  as  plaintiff.  But  the 
husband  may  maintain  the  action  after  a  di- 
vorce granted;  2  Bish.  Marr.  Div.  &  Sep. 
§  727;  Ratcliff  v.  Wales,  1  Hill  (N.  Y.)  63. 
This  action  is  rare  in  the  United  States,  and 
has  been  abolished  in  England  by  20  &  21 
Vict.  c.  85,  §  59.  The  husband  may,  how- 
ever, in  suing  for  a  divorce,  claim  damages 
from  the  adulterer ;  3  Steph.  Com.  437.  The 
right  to  an  action  for  damages  is  not  barred 
by  the  fact  that  the  act  was  done  by  violence, 
and  that  a  criminal  action  will  lie;  Egbert 
v.  Greenwalt,  44  Mich.  245,  6  N.  W.  654,  38 
Am.  Rep.  2U0.  See  15  Am.  L.  Reg.  (N.  S.)  451. 
That  the  defendant  was  ignorant  that  the 
woman  was  married  is  immaterial ;  Wales 
v.  Miner,  89  Ind.  119 ;   4  C.  &  P.  499. 

CRIME.  An  act  committed  or  omitted  in 
violation  of  a  public  law  forbidding  or  com- 
manding it. 

A  wrong  which  the  government  notices  as 
injurious  to  the  public,  and  punishes  in  what 
is  called  a  criminal  proceeding  in  its  own 
name.  1  Bish.  Cr.  Law  §  43.  See  People  v. 
Supervisors  of  Ontario  County,  4  Denio  (N. 
Y.)  260;  Rector  v.  State,  6  Ark.  187;  Durr 
v.  Howard,  id.  461;  Clark,  Cr.  Law  1.  See 
Intent;    Mens  Rea. 

The  word  crime  generally  denotes  an  offence  of  a 
deep  and  atrocious  dye.  When  the  act  is  of  an  in- 
ferior degree  of  guilt,  it  is  called  a  misdemeanor  ;  4 
Bla.  Com.  4.  Crime,  however,  is  often  used  as  com- 
,  prehending  misdemeanor  and  even  as  synonymous 
*  therewith,  and  also  with  offence;  In  short,  as  em- 
bracing every  indictable  offence;  State  v.  Corpora- 
tion of  Savannah,  T.  U.  P.  Charlt.  (Ga.)  235,  4  Am. 
Dec.  708;  Van  Meter  v.  People,  60  111.  168;  In  re 
Bergin,  31  Wis.  383  ;  In  re  Clark,  9  Wend.  (N.  Y.) 
212;  Kentucky  v.  Dennison,  24  How.  (U.  S.)  102,  16 
L.  Ed.  717  ;  In  re  Voorhees,  32  N.  J.  L.  144  ;  People 
v.  Board  of  Police  Com'rs,  39  Hun  (N.  Y.)  510; 
People  v.  French,  102  N.  Y.  583,  7  N.  E.  913  ;  but  it 
Is  not  synonymous  with  felony  ;  County  of  Lehigh 
v.   Schock,  113  Pa.  379,  7  Atl.   52. 

Crimes  are  denned  and  punished  by  statutes  and 
by  the  common  law.  Most  common-law  offences  are 
as  well  known  and  as  precisely  ascertained  as  those 
which  are  defined  by  statutes:  yet,  from  the  diffi- 
culty of  exactly  denning  and  describing  every  act 
which  ought  to  be  punished,  the  vital  and  preserv- 
ing principle  has  been  adopted  that  all  immoral  acts 
which  tend  to  the  prejudice  of  the  community  are 
punishable  criminally  by  courts  of  justice;  2  East 
5,  21 ;  State  v.  Doud,  7  Conn.  386  ;  People  v.  Smith, 
6  Cow.  (N.  Y.)  258;  Com.  v.  Harrington,  3  Pick. 
(Mass.)    26. 

As  to  "moral  turpitude"  as  ground  of  de- 
portation, see  that  title. 

There  are  no  common-law  offences  against 
the  United  States ;   U.  S.  v.  Eaton,  144  U.  S. 


677,  12  Sup.  Ct.  764,  36  L.  Ed.  591;  Petti- 
bone  v.  U.  S.,  148  U.  S.  203,  13  Sup.  Ct.  542. 
37  L.  Ed.  419.  See  Common  Law.  There 
can  be  no  constructive  offences,  and  before  a 
man  can  be  punished,  his  case  must  be  plain- 
ly and  unmistakably  within  the  statute;  r. 
S.  v.  Lacher,  134  U.  S.  624,  10  Sup.  I 
:;:;  L.  Ed.  10S0;  Todd  v.  U.  S.,  l 
15  Sup.  Ct  889,  39  L.  Ed.  982. 

Deliberation  and  premeditation  to  commit 
crime  need  not  exist  in  the  criminal's  mind 
for  any  fixed  period  before  the  commission 
of  the  act;  Tbiede  v.  Utah,  159  U.  S.  510,  L6 
Sup.  Ct.  62,  40  L.  Ed.  2.;7. 

A  crime  malum  in,  se  is  an  act  which 
shocks  the  moral  sense  as  being  grossly  im- 
moral and  injurious.  With  regard  to  some 
offences,  such  as  murder,  rape,  arson,  burgla- 
ry, and  larceny,  there  is  but  one  sentiment  in 
all  civilized  countries,  which  is  that  of  un- 
qualified condemnation.  "With  regard  to  oth- 
ers, such  as  adultery,  polygamy,  and  drunk- 
enness, in  some  communities  they  are  re- 
garded as  mala  in  se;  while  in  others  tiny 
are  not  even  mala  prohibita. 

An  offence  is  regarded  as  strictly  a  malum 
prohibitum  only  when,  without  the  prohibi- 
tion of  a  statute,  the  commission  or  omission 
of  it  would  in  a  moral  point  of  view  be  re- 
garded as  indifferent.  The  criminality  of 
the  act  or  omission  consists  not  in  the  sim- 
ple perpetration  of  the  act,  or  the  neglect  to 
perform  it,  but  in  its  being  a  violation  of  a 
positive  law. 

The  nature  of  the  offense  and  the  amount 
of  punishment  prescribed,  rather  than  its 
place  in  the  statutes,  determine  whether  it 
is  to  be  placed  among  the  serious  or  petty 
offenses,  whether  among  crimes  or  misde- 
meanors; Schick  v.  U.  S.,  195  U.  S.  65,  24 
Sup.  Ct.  826,  49  L.  Ed.  99,  1  Ann.  Cas.  585. 
The  purchase  or  receipt  for  sale  of  oleomar- 
garine which  has  not  been  branded  or  stamp- 
ed according  to  law  was  held  a  misdemeanor, 
not  a  crime ;  id. 

A  corrupt  purpose,  a  wicked  intent  to  do 
evil,  is  indispensable  to  conviction  of  a  crime 
which  is  morally  wrong.  But  no  evil  intent 
is  essential  to  an  offence  which  is  a  mere 
malum  prohibitum.  A  simple  purpose  to  do 
the  act  forbidden  In  violation  of  the  statute 
is  the  only  criminal  intent  requisite  to  a 
conviction  of  a  statutory  offense  which  is 
not  malum  in  se;  Armour  Packing  Co.  v.  U. 
S.,  153  Fed.  1,  82  C.  C.  A.  135,  14  L.  R.  A. 
(N.  S.)  400. 

It  may  be  by  act  of  omission,  e.  g.,  where 
a  public  olliccr,  charged  with  the  duty  of 
rescuing  bathers,  neglects  his  duty  and  one 
is  drowned. 

The  following  is,  perhaps,  as  complete  a 
classification  as  the  subject   admits: 

offences    against    the    sovereignty    of    the 

state.     1.  Treason.     2.  Misprision  of  treason. 

Offcnees  against   the   lives   and   person*  of 

individuals.      1.  Murder.       2.  Manslaughter. 


CRIME 


730 


CRIMEN  FALSI 


3.  Attempts  to  murder  or  kill.  4.  Mayhem. 
5.  Rape.  6.  Robbery.  7.  Kidnapping.  8. 
False  imprisonment.  9.  Abduction.  10.  As- 
sault and  battery.  11.  Abortion.  12.  Cruel- 
ty to  children. 

Offences  against  public  property.  1.  Burn- 
ing or  destroying  public  property.  2.  Injury 
to  the  same. 

Offences  against  private  property.  1.  Ar- 
son. 2.  Burglary.  3.  Larceny.  4.  Obtaining 
goods  on  false  pretences.  5.  Embezzlement. 
•  ;.  Malicious  mischief. 

Offences  against  public  justice.  1.  Perju- 
ry. 2.  Bribery.  3.  Destroying  public  rec- 
ords. 4.  Counterfeiting  public  seals.  5.  Jail- 
breach.  6.  Escape.  7.  Resistance  to  officers. 
8.  Obstructing  legal  process.  9.  Barratry. 
10.  Maintenance.  11.  Champerty.  12.  Con- 
tempt of  court.  13.  Oppression.  14.  Extor- 
tion. 15.  Suppression  of  evidence.  16.  Com- 
pounding  felony.     17.  Misprision   of   felony. 

Offences  against  the  public  peace.  1.  Chal- 
lenging or  accepting  a  challenge '  to  a  duel. 
2.  Unlawful  assembly.  3.  Rout.  4.  Riot  5. 
Breach  of  the  peace.     6.  Libel. 

Offences  against  chastity.  1.  Sodomy.  2. 
Bestiality.  3.  Adultery.  4.  Incest.  5.  Big- 
amy. 6.  Seduction.  7.  Fornication.  8.  Las- 
civious carriage.  9.  Keeping  or  frequenting 
house  of  ill-fame. 

Offences  against  public  policy.  1.  False 
currency.  2.  Lotteries.  3.  Gambling.  4.  Im- 
moral shows.  5.  Violations  of  the  right  of 
suffrage.  6.  Destruction  of  game,  fish,  etc. 
7.  Nuisance. 

Offences  against  the  currency,  and  public 
and  private  securities.  1.  Forgery.  2.  Coun- 
terfeiting.    3.  Passing  counterfeit  money. 

Offences  against  religion,  decency,  and 
morality.  1.  Blasphemy.  2.  Profanity.  3. 
Sabbath-breaking.  4.  Obscenity.  5.  Cruelty 
to  animals.  6.  Drunkenness.  7.  Promoting 
intemperance.     See  2  Sharsw.  Bla.  Com.  42. 

Offences  against  the  public,  individuals,  or 
their  property.     1.  Conspiracy. 

Under  recent  legislation  certain  new  of- 
fences have  been  created,  such  as  conspira- 
cies in  restraint  of  trade;  infractions  of 
rules  affecting  commerce  and  carriers  and 
the  like.  These  have  been  called  commercial 
crimes;  such,  for  instance,  as  infractions  of 
the  Sherman  Anti-Trust  Act. 

As  to  state  compensation  to  one  unjustly 
accused  of  crime,  see  Restitution. 

See  Continuing  Offence;  Letteb;  In- 
tent ;  Prosecutor  ;  Criminal  Law. 

CRIME  AGAINST  NATURE.  Sodomy  or 
buggery.  Ausman  v.  Veal,  10  Ind.  355,  71 
Am.  Dec.  331. 

CRIMEN  FALSI.  In  Civil  Law.  A  fraud- 
ulent alteration,  or  forgery,  to  conceal  or 
alter  the  truth,  to  the  prejudice  of  another. 
This  crime  may  be  committed  in  three  ways, 
namely:  by  forgery;  by  false  declarations 
or  false  oath, — perjury;  by  acts,  as  by  deal- 
ing with  false  weights  and  measures,  by  al- 


tering the  current  coin,  by  making  false 
keys,  and  the  like;  see  Dig.  48.  10.  22;  34. 
8.  2;  Code  9.  22;  2.  5.  9.  11.  16.  17.  23.  24; 
Merlin,  Rupert.;  1  Bro.  Civ.  Law  426;  1 
Phill.  Ev.  26;  2  Stark.  Ev.  715. 

At  Common  Law.  Any  crime  which  may 
injuriously  affect  the  administration  of  jus- 
tice, by  the  introduction  of  falsehood  and 
fraud.  Johnston  v.  Riley,  13  Ga.  97;  Webb 
v.  State,  29  Ohio  St.  351,  358;  Harrison  v. 
State,  55  Ala.  239;  U.  S.  v.  Block,  4  Sawy. 
211,  Fed.  Cas.  No.  14,609.  See  Maxims  (cri- 
men falsi  dicitur,  etc.). 

The  meaning  of  this  term  at  common  law 
is  not  well  defined.  It  has  been  held  to  in- 
clude forgery;  5  Mod.  74;  perjury,  suborna- 
tion of  perjury ;  Co.  Litt.  6  b ;  Comyns,  Dig. 
Testmoigne  (A  5)  ;  suppression  of  testimony 
by  bribery  or  conspiracy  to  procure  the  ab- 
sence of  a  witness ;  Ry.  &  M.  434 ;  conspiracy 
to  accuse  of  crime;  2  Hale,  PL  Cr.  277;  2 
Leach  496;  2  Dods.  191;  barratry;  2  Salk. 
690;  the  fraudulent  making  ,or  alteration 
of  a  writing,  to  the  prejudice  of  another 
man's  right ;  or  of  a  stamp,  to  the  prejudice 
of  the  revenue;  4  Steph.  Comm.  (15th  ed.) 
119,  citing  2  East  P.  C.  Ch.  xix,  §  60.  The 
effect  of  a  conviction  for  a  crime  of  this 
class  is  infamy,  and  incompetence  to  testify ; 
Barbour  v.  Com.,  80  Va.  288.  Statutes  some- 
times provide  what  shall  be  such  crimes. 

CRIMEN  L/ES/E  MAJESTATIS.  See  LiE- 
sa  Majestas. 

CRJMINA  EXTRAORDINARY.  In  South 
African  Law.  Certain  crimes  have  been  so 
called  by  Voet  and  the  classification  is  some- 
times broadly  used.  They  include  interfer- 
ing with  another's  marital  rights,  seducing  a 
girl,  polluting  streams,  procuring  abortion, 
blackmail  and  many  others.  The  classifica- 
tion does  not  seem  valuable.  See  28  So.  Afr. 
L.  J.  490. 

CRIMINAL  CONVERSATION.  See  Crim. 
Con. 

CRIMINAL  INFORMATION.  A  criminal 
suit  brought,  without  interposition  of  a 
grand  jury,  by  the  proper  officer  of  the  king 
or  state.  Cole,  Cr.  Inf.;  4  Bla.  Com.  398. 
See  Information. 

CRIMINAL  INTENT.  The  intent  to  com- 
mit a  crime ;  malice,  as  evidenced  by  a  crim- 
inal act.     Black,  Diet. 

CRIMINAL  LAW.  That  branch  of  juris- 
prudence which  treats  of  crimes  and  offences. 
From  the  very  nature  of  the  social  com- 
pact on  which  all  municipal  law  is  founded, 
and  in  consequence  of  which  every  man, 
when  he  enters  into  society,  gives  up  part 
of  his  natural  liberty,  result  those  laws 
which,  in  certain  cases,  authorize  the  inflic- 
tion of  penalties  the  privation  of  liberty  and 
even  the  destruction  of  life  with  a  view  to 
the  future  prevention  of  crime  and  to  insur- 
ing the  safety  and  well-being  of  the  public. 
Salus  populi  suprema  lew. 


CRIMINAL  LAW 


731 


CRIMINAL  LAW 


The  extreme  importance  of  a  knowledge 
of  the  criminal  law  is  evident.  For  a  mis- 
take in  point  of  law,  which  every  person  of 
discretion  not  only  may  know  but  is  bound 
and  presumed  to  know,  is  in  criminal 
no  defence.  Ignoraritia  eorum  quce  guis 
scire  tenetur  non  cxcusat.  This  law  is  ad- 
ministered upon  the  principle  that  every  one 
must  lie  taken  conclusively  to  know  it  with- 
out proof  that  he  docs  know  it;  per  Tindal, 
C.  J.,  in  10  CI.  &  P.  210.  See  U.  S.  v.  An- 
thony, n  Blatchf.  200,  Fed.  Cas.  No.  14,459; 
Hoover  v.  State  59  Ala.  57;  State  v.  Good- 
enow,  85  Mo.  30;  state  v.  Halsted,  39  N.  .r. 
L.  402.  And  this  is  true  though  the  statute 
making  an  act  illegal  is  of  so  recent  pro- 
mulgation as  to  make  it  impossible  to  know 
of  its  existence:  Branch  Bank  at  .Mobile  v. 
Murphy.  8  Ala.  119;  Heard  v.  Heard,  8  6a. 
380;  The  Ann,  1  Gall.  C.  C.  62,  Fed.  Cas.  No. 
397.  This  doctrine  has  been  carried  so  far 
as  to  include  the  case  of  a  foreigner  charged 
with  a  crime  which  was  no  offence  in  his 
own  country;  7  C.  &  P.  456;  Russ.  &  R.  4. 
See  Sumner  v.  Beeler,  50  Ind.  341,  19  Am. 
Rep.  718.  And,  further,  the  criminal  law, 
whether  common  or  statute,  is  imperative 
with  reference  to  the  conduct  of  individuals ; 
so  that,  if  a  statute  forbids  or  commands  a 
thing  to  be  done,  all  acts  or  omissions  con- 
trary to  the  prohibition  or  command  of  the 
statute  are  offences  at  common  law,  and  or- 
dinarily indictable  as  such;  Hawk.  PI.  Cr. 
I)k.  2,  c.  25,  §  4;  8  Q.  B.  883.  An  offence 
which  may  be  the  subject  of  criminal  pro- 
cedure is  an  act  committed  or  omitted  in 
violation  of  a  public  law  either  forbidding 
or  commanding  it ;  U.  S.  v.  Eaton,  144  U.  S. 
G77,  12  Sup.  Ct.  764,  36  L.  Ed.  591. 

In  seeking  for  the  sources  of  our  law  up- 
on this  subject,  when  a  statute  punishes  a 
crime  by  its  legal  designation,  without  enu- 
merating the  acts  which  constitute  it,  then 
it  is  necessary  to  resort  to  the  common  law 
for  a  definition  of  the  crime  with  its  dis- 
tinctions and  qualifications.  So  if  an  act  is 
made  criminal,  but  no  mode  of  prosecution 
is  directed  or  no  punishment  provided,  the 
common  law  furnishes  its  aid,  prescribing 
the  mode  of  prosecution  by  indictment,  and 
as  a  mode  of  punishment,  fine,  and  imprison- 
ment. This  is  generally  designated  the  com- 
mon law  of  England;  but  it  might  now  be 
properly  called  the  common  law  of  this  coun- 
try. It  was  adopted  by  general  consent  when 
our  ancestors  first  settled  here.  So  far, 
therefore,  as  the  rules  and  principles  of  the 
common  law  are  applicable  to  the  adminis- 
tration of  criminal  law  and  have  not  been 
altered  and  modified  by  legislative  enact- 
ments or  judicial  decisions,  they  have  the 
same  force  and  effect  as  laws  formally  enact- 
ed; Tully  v.  Com.,  4  Mete.  (Mass.)  358; 
Com.  v.  Chapman,  13  Mete.  (Mass.)  09. 
"The  common  law  of  crimes  is  at  present 
that  jus  vac/urn  ct  incognitum  against  which 
jurists    and    vindicators    of    freedom    have 


strenuously  protested.  It  is  to  be  observed 
that  the  definitions  of  crimes,  the  nature  of 
punishments,  and  ;!.  of.  criminal  pro- 

cedure originated,  for  il  art,  in  the 

principles  of  the  most  ai  unon  law, 

but  that  most   of  the  unwritten  n 
in_'    -■rimes    have    been    modified    b; 
which    assume   the   common-law    I 
definitions  as   if   their  import   were  familiar 
to     the     community.       The    common     la 
crimes  lias,   partly   from   humane  and   partly 
from  corrupt  motives,  been  pre-eminently  the 
sport  of  Judicial   constructions,     in   r 
indeed,  it  was  made  for  the  state  of  things 
that   prevailed    in   this  island   and   the   kind 
of  people   that   inhabited   it   in   the  reign  of 
Richard  I.;  in  reality,   it  is  the  patchwork 
of  every   judge  in   every    reign,    from   Coeur 
de   Lion    to    Victoria."      Ruins   of   Time    Ex- 
emplified  in  Hale's  Pleas  of  the  Crown,  by 
Amos,  Pref.  x. 

Some  of  the  leading  principles  of  the 
lisli  and  American  system  of  criminal  law 
are — First.  Every  man  is  presumed  to  be  in- 
nocent until  the  contrary  is  shown ;  and  if 
there  is  any  reasonable  doubt  of  his  guilt, 
he  is  entitled  to  the  benefit  of  the  doubt. 
See  Mugler  v.  Kansas,  123  U.  S.  623.  8  Sup. 
Ct.  273,  31  L.  Ed.  20:>.  Second.  In  gi 
no  person  can  be  brought  to  trial  until  a 
grand  jury  on  examination  of  the  charpe  has 
found  reason  to  hold  him  for  trial.  Ex  par- 
te Bain,  121  U.  S.  1,  7  Sup.  Ct.  781,  30  L.  Ed. 
849.  Third.  The  prisoner  is  entitled  to  trial 
by  a  jury  of  his  peers,  who  are  chosen  from 
the  body  of  the  people  with  a  view  to  Im- 
partiality, and  whose  decision  on  questions 
of  fact  is  final.  Fourth.  The  question  of  his 
guilt  is  to  be  determined  without  ref' 
to  his  general  character.  By  the  systems  of 
continental  Europe,  on  the  contrary,  the  tri- 
bunal not  only  examines  the  evidence 
ing  to  the  offence,  but  looks  at  the  probabili- 
ties arising  from  the  prisoner's  previous  his- 
tory and  habits  of  life.  Fifth.  The  prisoner 
cannot  be  required  to  criminate  himself. 
(The  general  rule,  however,  now  seems  to 
be  in  jurisdictions  where  there  is  no  statu- 
tory prohibition,  that  an  accused  person  tes- 
tifying in  his  own  behalf  may  be  cross-ex- 
amined like  any  other  witn<  pie  v. 
Tice,  131  N.  Y.  651,  30  X.  E.  494,  15  L.  R.  A. 
669;  People  v.  Howard.  7.".  Mich.  10,  40  N. 
W.  789;  Boyle  v.  Slate.  105  Ind.  469,  5  N.  E. 
203,  55  Am.  Rep.  2is;  Keyes  v.  State,  122 
Ind.  527.  I'.-.  X.  E.  1097;  State  v.  Pfefferle, 
36  Kan.  90.  12  Pac.  406 ;  State  v.  Iii; 
Nev.  17;  Chambers  v.  People.  105  111.  413. 
See  for  a  full  discussion  of  this  qui 
Rice,  Ev.  S  223  ami  note:  Counsel  man  v. 
Hitchcock.  M2  r.  s.  :,!7,  12  Sup.  Ct  1 
L.  Ed.  L110.)  Sixth.  He  cannot  he  twice  put 
in  jeopardy  for  the  same  offence.  See  Sim- 
mons v.  U.  S..  142  U.  S.  US.  12  Sup.  Ct.  171. 
35  L.  Ed.  968;  In  re  NielSen,  131  D.  S.  176, 
9  Sup.  Ct.  672,  ".3  L.  I'd.  118.  Seventh.  He 
cannot   be  punished   for  an  act  which   was 


CRIMINAL  LAW 


732 


CRIMINATE 


not  an  offence  by  the  law  existing  at  the 
time  of  its  commission ;  nor  can  a  severer 
punishment  be  inflicted  than  was  declared 
by  law  at  that  time. 

See  Crime;  Ignorance;  Intent;  Jeopar- 
dy;  Infamous  Crime;  Infamy;  Prisoner. 

As  to  the  identification  of  criminals,  see 
Anthropometry;    Rogue's  Gallery. 

As  to  circulating  photographs  of  criminals, 
to  assist  in  detecting  crime,  see  Privileged 
Communications. 

CRIMINAL  LAW  CONSOLIDATION 
ACTS.  Passed  in  England  in  1861,  for  the 
consolidation  of  the  criminal  law  of  England 
and  Ireland.  4  Steph.  Com.  227.  They  are 
a  codification  of  the  modern  criminal  law  of 
England.  See  Bruce's  Archb.  PI.  &  Ev.  in 
Cr.  Ca.  1875. 

CRIMINAL  PROCEDURE.  The  method 
pointed  out  by  law  for  the  apprehension,  tri- 
al, or  prosecution,  and  fixing  the  punishment 
of  those  persons  who  have  broken  or  violat- 
ed, or  are  supposed  to  have  broken  or  violat- 
ed, the  laws  prescribed  for  the  regulation  of 
the  conduct  of  the  people  of  the  community, 
and  who  have  thereby  laid  themselves  liable 
to  fine  or  imprisonment,  or  both.  A.  &  E. 
Encyc.  Law.     See  Procedure. 

CRIMINAL  PROCESS.  Process  which  is- 
sues to  compel  a  person  to  answer  for  a 
crime  or  misdemeanor.  Ward  v.  Lewis,  1 
Stew.    (Ala.)   26. 

CRIMINALITER.  Criminally;  on  crimi- 
nal process. 

CRIMINATE.  To  exhibit  evidence  of  the 
commission  of  a  criminal  offence. 

It  is  a  rule  that  a  witness  cannot  be  com- 
pelled to  answer  any  question  which  has  a 
tendency  to  expose  him  to  a  penalty,  or  to 
any  kind  of  punishment,  or  to  a  criminal 
charge ;  4  St.  Tr.  Q;  6  id.  649 ;  10  How.  St. 
Tr.  1090;  Johnson  v.  Goss,  2  Yerg.  (Tenn.) 
110;  Grannis  v.  Branden,  5  Day  (Conn.) 
260,  5  Am.  Dec.  143;  Bellinger  v.  People,  8 
Wend.  (N.  Y.)  598;  Parry  v.  Almond,  12 
S.  &  R.  (Pa.)  284;  State  v.  Quarles,  13  Ark. 
307.  Such  a  statement  cannot  be  used  to 
show  guilt  and  a  confession  must  be  free 
and  voluntary;  In  re  Emery,  107  Mass.  180, 
9  Am.  Rep.  22.  If  a  defendant  offers  him- 
self as  a  witness  to  disprove  a  criminal 
charge,  he  cannot  excuse  himself  from  an- 
swering on  the  ground  that  by  so  doing  he 
may  criminate  himself;  Spies  v.  People,  122 
111.  235,  12  N.  E.  865,  17  N.  E.  898,  3  Am.  St. 
Rep.  320.     See  Incrimination. 

An  accomplice  admitted  to  give  evidence 
against  his  associates  in  guilt  is  bound  to 
make  a  full  and  fair  confession  of  the  whole 
truth  respecting  the  subject-matter  of  the 
prosecution;  Com.  v.  Knapp,  10  Pick.  (Mass.) 
477,  20  Am.  Dec.  534 ;  2  Stark.  Ev.  12,  note ; 
but  he  is  not  bound  to  answer  with  respect 
to  his  share  in  other  offences,  in  which  he 
was  not  concerned  with  the  prisoner ;  People 


v.  Whipple,  9  Cow.   (N.  Y.)   721,  note   (a) ; 
2  C.  &  P.  411. 

CRIMINOLOGY.  The  science  which  treats 
of  crimes  and  their  prevention  and  punish- 
ment 

CRIMP.  One  who  decoys  and  plunders 
sailors  under  cover  of  harboring  them. 
Wharton. 

CRITICISM.  The  art  of  judging  skilfully 
of  the  merits  or  beauties,  defects  or  faults, 
of  a  literary  or  scientific  composition,  or  of 
a  production  of  art.  When  the  criticism  is 
reduced  to  writing,  the  writing  itself  is  call- 
ed a  criticism. 

Liberty  of  criticism  must  be  allowed,  or 
there  would  be  neither  purity  of  taste  nor 
of  morals.  Fair  discussion  is  essentially 
necessary  to  the  truth  of  history  and  the 
advancement  of  literature  and  science.  That 
publication,  therefore,  is  not  a  libel  which 
has  for  its  object  not  to  injure  the  reputa- 
tion of  an  individual,  but  to  correct  misrep- 
resentations of  facts,  to  refute  sophistical 
reasoning,  to  expose  a  vicious  taste  for  liter- 
ature, or  to  censure  that  which  is  hostile  to 
morality;  1  Campb.  351.  As  every  man  who 
publishes  a  book  commits  himself  to  the 
judgment  of  the  public,  any  one  may  com- 
ment on  his  performance ;  if  he  does  not  step 
aside  from  the  work,  or  introduce  fiction  for 
the  purpose  of  condemnation,  he  exercises  a 
fair  and  legitimate  right.  The  critic  does  a 
good  service  to  the  public  who  writes  down 
any  such  vapid  or  useless  publication  as 
should  never  have  appeared ;  and,  although 
the  author  may  suffer  a  loss  from  it,  the 
law  does  not  consider  such  loss  an  injury ; 
because  it  is  a  loss  which  the  party  ought  to 
sustain.  It  is  the  loss  of  fame  and  profit  to 
which  he  was  never  entitled;  1  Campb.  358, 
n.  See  1  Esp.  28;  Stark.  Lib.  and  SI.  228; 
4  Bingh.  N.  S.  92 ;  3  Scott  340 ;  1  Mood.  &  M. 
74,  187;  Cooke,  Def.  52;  20  Q.  B.  D.  275. 
See  Libel;  Slander. 

CROFT.  A  little  close  adjoining  a  dwell- 
ing-house, and  enclosed  for  pasture  and  till- 
age or  any  particular  use.  Jacob,  Law  Diet 
A  small  place  fenced  off  in  which  to  keep 
farm-cattle.     Spelman,  Gloss. 

CROP.  See  Emblements  ;  Growing  Crops  ; 
Away-Going  Crop. 

CROPPER.  One  who,  having  no  interest 
in  the  land,  works  it  in  consideration  of  re- 
ceiving a  portion  of  the  crop  for  his  labor. 
Fry  v.  Jones,  2  Rawle  (Pa.)  12;  Harrison 
v.  Ricks,  71  N.  C.  7. 

CROSS.  A  mark  made  by  a  person  who 
is  unable  to  write,  instead  of  his  name. 

See  Mark. 

CROSS-ACTION.  An  action  by  a  defend- 
ant in  an  action,  against  the  plaintiff  in  the 
same  action,  upon  the  same  contract,  or  for 
the  same  tort.  Thus,  if  Peter  bring  an  ac- 
tion of  trespass  against  Paul,  and  Paul  bring 


CROSS-ACTION 


733 


CROSS-BILL 


another  action  of  trespass  against  Peter,  the 
subject  of  the  dispute  being  an  assault  and 
battery,  it  is  evident  that  Paul  could  not  set 
off  the  assault  committed  upon  him  by  Peter, 
in  the  action  which  Peter  had  brought 
against  him;  therefore  a  cross-action  be- 
comes necessary.     10  Ad.  &  B.  043. 

CROSS-APPEAL.  Where  both  parties  to 
a  judgment  appeal  therefrom,  the  appeal  of 
each  is  called  a  cross-appeal  as  regards  that 
of  the  other.    3  Steph.  Com.  5S1. 

CROSS-BILL.  One  whir]!  is  brought  by  a 
defendant  in  a  suit  against  a  plaintiff  in  or 
against  other  defendants  in  the  Bame  suit,  or 
against  both,  touching  the  matters  in  ques- 
tion in  the  original  bill.  Story,  Eq.  PI.  § 
389;  Mitf.  Eq.  PI.  SO.  It  is  brought  either 
to  obtain  a  discovery  of  facts,  in  aid  of  the 
defence  to  the  original  bill,  or  to  obtain  full 
and  complete  relief  as  to  the  matters  charg- 
ed in  the  original  bill ;  Ayers  v.  Carver, 
17  How.  (U.  S.)  595,  15  L.  Ed.  lTf). 

It  is-  considered  as  a  defence  to  the  origi- 
nal hill,  and  is  treated  as  a  dependency  up- 
on the  original  suit;  1  Eden,  Inj.  190;  3  Atk. 
312;  19  E.  L.  &  Eq.  325;  Cockrell  v.  Warner, 
14  Ark.  346;  McDougald  v.  Dougherty,  14 
Ga.  074;  Slason  v.  Wright,  14  Vt.  208;  Nel- 
son v.  Dunn,  15  Ala.  501;  Kidder  v.  Barr.  35 
N.  H.  251.  It  is  usually  brought  either  to 
obtain  a  necessary  discovery,  as,  for  exam- 
ple, where  the  plaintiffs  answer  under  oath 
is  desired ;  3  Swanst.  474 ;  3  Y.  &  C.  594 ;  2 
Cox,  Ch.  109 ;  or  to  obtain  full  relief  for  all 
parties,  since  the  defendant  in  a  bill  could 
originally  only  pray  for  a  dismissal  from 
court,  which  would  not  prevent  subsequent 
suits ;  1  Yes.  284 ;  2  Sch.  &  L.  9,  144 ;  Speer 
v.  Whitfield,  10  N.  J.  Eq.  107;  Jones  v. 
Smith,  14  111.  229;  Bullock  v.  Brown,  20  Ga. 
472;  or  where  the  defendants  have  conflict- 
ing interests;  Pattison  v.  Hull,  9  Cow.  (N. 
Y.)  747;  Armstrong  v.  Pratt,  2  Wis.  299 ; 
but  may  not  introduce  new  parties;  Shields 
v.  Barrow,  17  How.  (U.  S.)  130,  15  L.  Ed. 
158;  unless  affirmative  relief  is  demanded 
and  justice  so  requires;  Brooks  v.  Applegate, 
37  W.  Va.  376,  16  S.  E.  585.  New  parties 
cannot  be  brought  in  by  a  cross-bill ;  if  the 
defendant's  interest  requires  their  presence, 
he  should  object  for  non-joinder  and  compel 
plaintiff  to  amend;  Patton  v.  Marshall.  173 
Fed.  350,  97  C.  C.  A.  610,  26  L.  R.  A.  (N.  S.) 
127.  It  is  also  used  for  the  same  purpose  as 
a  plea  puis  darrein  continuance  at  law;  2 
Ball  &  B.  140;  2  Atk.  177,  553;  Baker  v. 
Whiting,  1  Sto.  218,  Fed.  Cas.  No.  786. 

It  should  state  the  original  bill,  and  the 
proceedings  thereon,  and  the  rights  of  the 
party  exhibiting  the  bill  which  are  neces- 
sary to  be  made  the  subject  of  a  cross-liti- 
gation, on  the  grounds  on  which  he  resists 
the  claims  of  the  plaintiff  in  the  original 
bill,  if  that  is  the  object  of  the  new  bill; 
Mitf.  Eq.  PL  81 ;  and  it  should  not  introduce 


new  and  distinct  matters;  Gallatian  y.  Cun- 
ningham, 8  Cow.  (N.  Y.)  361. 

It   should  be   brought   before  publication; 
Sterry  v.  Arden,   1   John-.    Ch*   <  N.   Y. 
Josey  v.  Rogers,  13  Ga.  47>> ;  and  not  after, 
— to   avoid    perjury;    Field   v.  in,    7 

Johns.  Ch.  (N.  Y.)  250;  Nelson  103. 

In  England  it  need  not  be  i 
the  same  court;  Mitf.  Eq.  PL  81.     For   the 
rule  in  the  United  States,  see  Carnochan  v. 
Christie,    11    Wheat.    (U.    S. )    446,    6    L. 
516;  Story,  Eq.  PI.  §  401;  Dan.  Ch.  PI.  &  Pr. 
L549. 

The    granting    or    refusing    permission    to 
file   a   cross-hill   is   largely    in    the   disc* 
of  the  court;  Huff  v.  Bidwell,  151  Fed.  563, 
81  C.  C.  A.  43. 

T'mler  the  Equity  Rules  of  Supreme  Court 
of  United  States  (Feb.  1,  1913),  matter 
er  for  a  cross  hill  may  be  set  up  in  the  an- 
swer,   with    the   same   effect     Rule   30    (33 
Sup.  Ct.  xxvi  i . 

CROSS-COMPLAINT.  This  is  allowed 
when  a  defendant  has  a  cause  of  action 
against  a  co-defendant,  or  a  person  not  a 
party  to  the  action,  and  affecting  the  sub- 
ject-matter of  the  action.  The  only  real  dif- 
ference between  a  complaint  and  a  cross- 
complaint,  is,  that  the  first  is  filed  by  the 
plaintiff  and  the  second  by  the  defendant. 
Both  contain  a  statement  of  the  facts,  and 
such  demands  affirmative  relief  upon  the 
facts  stated.  The  difference  betwe 
counter-claim  and  a  cross-complaint  is  that 
in  the  former  the  defendant's  cause  of  ac- 
tion is  against  the  plaintiff;  and  the  latter, 
against  a  co-defendant,  or  one  not  a  party 
to  the  action;  White  v.  Reagan,  32  Ark.  290. 
CROSS-DEMAND.  A  demand  is  so  called 
which  is  preferred  by  B,  in  opposition  to  one 
already  preferred  against  him  by   A. 

CROSS-ERRORS.  Errors  assigned  by  the 
respondent  in  a  writ  of  error. 

CROSS-EXAMINATION.  The  examina- 
tion of  a  witness  by  the  party  opposed  to 
the  party  who  called  him,  and  who  examined, 
or  was  entitled  to  examine  him  in  chief. 

The  purpose  of  the  cross-examination  i.-  to 
test  the  truthfulness,  intelligence,  memory, 
bias  or  interest  of  the  witness,  and  any 
question  to  that  end  within  reason  is  usually 
allowed:  Briggs  v.  People,  219  111.  3 
X.  E.  499;  Real  v.  People.  42  N.  Y.  270; 
Wroe  v.  State,  20  Ohio  St  4G0. 

In  England  and  some  of  the  states,  when 
a  competent  witness  is  called  and  sworn,  the 
other  party  is  ordinarily  entitled  to  cri 
amine  him  as  to  matters  not  covered  by  the 
direct  examination;  1  Esp.  357;  Moody  v. 
Rowell.  IT  Pick.  (Mass.)  490,  28  Am.  Dec. 
317;  Varick  v.  Jackson.  2  Wend.  (X.  Y.)  166, 
19  Am.  Dec.  571  :  Fulton  Bank  v.  Stafford,  2 
Wend.  (X.  Y.)  483;  Aiken  v.  CatO,  23  Ga. 
154;  Mask  v.  State,  32  Miss.  405;  see  3  C 
&  P.  16;  2  M.  &  R.  273;  Aiken  v.  Cato,  23 


CROSS-EXAMINATION 


734 


CROSS-EXAMINATION 


Ga.  154 ;  but  see  Swift  v.  Ins.  Co.,  122  Mass. 
578;  but  it  is  beld  iu  other  states  and  in 
the  federal  courts  that  the  cross-examina- 
tion must  be  confined  to  facts  connected  with 
the  direct  examination ;  Harrison  v.  Rowan, 
3  Wash.  C.  C.  580,  Fed.  Cas.  No.  6,141 ;  Phil- 
adelphia &  Trenton  R.  Co.  v.  Stimpson,  14 
Pet.  (U.  S.)  44S,  10  Lr.  Ed.  535 ;  Ellmaker  v. 
Buckley,  16  S.  &  R.  (Pa.)  77;  Floyd  v.  Bo- 
vard,  6  W.  &  S.  (Pa.)  75 ;  Donnelly  v.  State, 
26  N.  J.  Law,  463;  Landsberger  v.  Gorham, 
5  Cal.  450;  Cokely  v.  State,  4  la.  477;  Pear- 
son v.  Hardin,  95  Mich.  300,  54  N.  W.  904; 
Hansen  v.  Miller,  145  111.  53S,  32  N.  E.  548; 
In  re  Westerfield,  96  Cal.  113,  30  Pac.  1104; 
Winkler  v.  Roeder,  23  Neb.  706,  37  N.  W.  607, 
8  Am.  St.  Rep.  155 ;  Fulton  v.  Bank,  92  Pa. 
112;  Monongahela  Water  Co.  v.  Stewartson, 
96  Pa.  436.  It  may  extend  to  every  fact 
which  is  part  of  the  plaintiff's  case,  but  not 
to  matter  of  defense ;  Smith  v.  Philadelphia 
Traction  Co.,  202  Pa.  54,  51  Atl.  345;  New 
York  Iron  Mine  v.  Bank,  39  Mich.  644 ;  af- 
firmative defenses  cannot  be  introduced  on 
cross-examination;  McCrea  v.  Parsons,  112 
Fed.  917,  50  C.  C.  A.  612. 

Inquiry  may  be  made  in  regard  to  collat- 
eral facts  in  the  discretion  of  the  judge;  7 
C.  &  P.  3S9;  Lawrence  v.  Barker,  5  Wend. 
(N.  T.)  305;  Huntsville  Belt  Line  &  Monte 
Sano  Ry.  Co.  v.  Corpening  &  Co.,  97  Ala.  681, 
12  South.  295;  but  not  merely  for  the  pur- 
pose of  contradicting  the  witness  by  other 
evidence ;  7  C.  &  P.  7S9 ;  Com.  v.  Buzzell,  16 
Pick.  (Mass.)  157;  Ware  v.  Ware,  8  Greenl. 
(Me.)  42.  And  see  Howard  v.  Ins.  Co.,  4 
Denio  (N.  Y.)  502 ;  State  v.  Patterson,  24  N. 
C.  346,  38  Am.  Dec.  699;  Philadelphia  &  T. 
R.  Co.  v.  Stimpson,  14  Pet.  (U.  S.)  461,  10  L. 
Ed.  535.  Considerable  latitude  should  be  al- 
lowed in  cross-examining  witnesses  as  to  val- 
ue, in  order  that  the  ground  of  their  opinion 
may  appear ;  Phillips  v.  Inhabitants  of  Mar- 
blehead,  148  Mass.  326,  19  N.  E.  547. 

A  written  paper  identified  by  the  witness 
as  having  been  written  by  him  may  be  intro- 
duced in  the  course  of  cross-examination  as 
a  part  of  the  evidence  of  the  party  produc- 
ing it,  if  necessary  for  the  purposes  of  the 
cross-examination;  8  C.  &  P.  369.  A  wit- 
ness may  be  asked  whether  he  has  not  made 
previous  statements  contradictory  to  his  pres- 
ent testimony;  People  v.  Walker,  140  Cal. 
153,  73  Pac.  831;  Dillard  v.  U.  S.,  141  Fed. 
303,  72  C.  C-  A.  451 ;  but  he  must  be  given  a 
chance  to  explain;  Rice  v.  Rice,  43  App. 
Div.  458,  60  N.  Y.  Supp.  97.  Where  the 
statement  about,  which  he  is  asked  is  in  writ- 
ing, it  is  necessary  that  his  attention  be  call- 
ed to  the  writing  and  if  he  denies  that  he 
made  such  statement,  the  writing  must  be 
proved  in  the  ordinary  way;  Gaffney  v.  Peo- 
ple, 50  N.  Y.  416.  In  Queen  Caroline's  Case, 
2  B.  &  B.  286,  it  was  held  that  on  cross-ex- 
amination counsel  is  not  allowed  to  repre- 
sent in  the  statement  of  a  question  the  con- 
tents  of  a  letter  and  to   ask   the   witness 


whether  the  witness  wrote  a  letter  to  any 
person  with  such  contents,  or  contents  to  the 
like  effect,  without  first  having  shown  the 
letter  to  the  witness  and  asked  whether  he 
wrote  such  letter.  This  is  commonly  spoken 
of  as  the  rule  in  the  Queen's  Case.  It  is 
severely  and  ably  criticised  in  Wigmore,  Ev- 
idence 1259-1263.  In  England  it  was  unan- 
imously condemned  by  the  bar,  and  in  1854  a 
statute  was  passed  which  abolished  it.  In 
the  United  States  it  was  adopted  in  People 
v.  Lambert,  120  Cal.  170,  52  Pac.  307;  Sim- 
mons v.  State,  32  Fla.  3S7,  13  South.  896; 
Taylor  v.  State,  110  Ga.  150,  35  S.  E.  161; 
Momence  Stone  Co.  v.  Groves,  197  111.  8S,  64 
N.  E.  335;  Glenn  v.  Gleason,  61  la.  28,  15 
N.  W.  659;  Hendrickson  v.  Com.  (Ky.)  64  S. 
W.  954 ;  State  v.  Cain,  106  La.  708,  31  South. 
300;  O'Riley  v.  Clampet,  53  Minn.  539,  55 
N.  W.  740;  Story  v.  State,  6S  Miss.  609,  10 
South.  47;  State  v.  Matthews,  8S  Mo.  121; 
Omaha  Loan  &  Trust  Co.  v.  Douglas  County, 
62  Neb.  1,  S6  N.  W.  936;  Haines  v.  Ins.  Co., 
52  N.  H.  467;  Gaffney  v.  People,  50  N.  Y.  423 ; 
State  v.  Steeves,  29  Or.  85,  43  Pac.  947; 
Kann  v.  Bennett,  223  Pa.  36,  72  Atl.  342; 
Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Artery,  137 
U.  S.  520,  11  Sup.  Ct.  129,  34  L.  Ed.  747; 
Kalk  v.  Fielding,  50  Wis.  339,  7  N.  W.  296; 
Mr.  Wigmore  thinks  that  its  repudiation  in 
England  was  not  known  at  the  time  of  its 
early  adoption  here. 

A  cross-examination  as  to  matters  not  oth- 
erwise admissible  in  evidence  entitles  the 
party  producing  the  witness  to  re-examine 
him  as  to  those  matters;  3  Ad.  &  E.  554; 
Stuart  v.  Baker,  17  Tex.  417.  If  the  defend- 
ant be  permitted  on  cross-examination  to 
bring  out  new  matter,  constituting  his  own 
ease,  which  he  had  not  opened  to  the  jury, 
to  the  injury  of  the  plaintiff,  it  may  be 
ground  for  reversal ;  Thomas  &  Sons  v. 
Loose,  Seaman  &  Co.,  114  Pa.  35,  6  Atl.  326 ; 
Hughes  v.  Coal  Co.,  104  Pa.  207. 

Leading  questions  may  be  put  in  cross-ex- 
amination; 1  Stark.  Ev.  96;  Floyd  v,  Bo- 
vard,  6  W.  &  S.  (Pa.)  75;  Moody  v.  Rowell, 
17  Pick.  (Mass.)  490,  28  Am.  Dec.  317. 

The  trial  court  has  not  such  a  discretion 
as  to  the  scope  of  cross-examination  of  the 
defendant  in  a  criminal  cause  as  in  the  ex- 
amination of  other  witnesses;  People  v. 
O'Brien,  96  Cal.  171,  31  Pac.  45.  See  State  v. 
Wright,  40  La.  Ann.  589,  4  South.  4S6. 

A  refusal  to  permit  cross-examination  as 
to  relevant  matters  brought  out  in  direct  ex- 
amination is  usually  ground  for  reversal; 
Prout  v.  Bernards  Land  &  Sand  Co.,  77  N.  J. 
L.  719,  73  Atl.  4S6,  25  L.  R.  A.  (N.  S.)  683, 
note;  Eames  v.  Kaiser,  142  U.  S.  4S8,  12 
Sup.  Ct.  302,  35  L.  Ed.  1091 ;  Graham  v.  Lari- 
mer, 83  Cal.  173,  23  Pac.  286.  A  full  and  fair 
cross-examination  is  a  matter  of  right  and 
a  denial  of  it  is  error ;  after  such  has  been 
allowed,  further  cross-examination  becomes 
discretionary;  Ressurrection  Gold  Min.  Co. 
v.  Fortune  Min.  Co.,  129  Fed.  668,  64  C.  C. 


CROSS-EXAMINATION 


735 


CRUELTY 


A.  180 ;    City  of  Florence  v.  Calmet,  43  Colo. 
510,  96  Pac.  183. 

It  is  improper  for  a  trial  judge  to  cross- 
examine  defendant's  witnesses  in  such  a 
manner  as  to  impress  the  jury  with  the  idea 
that  he  thinks  the  defendant  guilty.  If  he 
participates  in  the  cross-examination,  he 
should  do  it  in  such  a  way  as  to  indicate  his 
entire  impartiality ;  Adler  v.  U.  S.,  182  Fed. 
464,  104  C.  C.  A.  608. 

CROSS-REMAINDER.  Where  a  particu- 
lar estate  is  conveyed  to  several  persons  in 
common,  or  various  parcels  of  the  same  land 
are  conveyed  to  several  persons  in  severalty, 
and  upon  the  termination  of  the  interest  of 
either  of  them  his  share  is  to  go  in  remainder 
to  the  rest,  the  remainders  so  limited  over 
are  said  to  be  cross-remainders.  In  deeds, 
such  remainders  cannot  arise  without  ex- 
press limitation.  In  wills,  they  frequently 
arise  by  implication;  1  Prest.  Est.  94;  2 
Ililliard,  R.  P.  44;  4  Kent  201;  Chal.  R.  P. 
241. 

CROSS-RULES.  Rules  entered  where 
each  of  the  opposite  litigants  obtained  a  rule 
nisi,  as  the  plaintiff  to  increase  the  damages, 
and  the  defendant  to  enter  a  nonsuit,  Whar- 
ton. 

CR0SSED-CHECK.    See  Check. 

CROSSING.     See  Grade  Crossing. 

CROWN.  In  England.  A  word  often  used 
for  the  sovereign.  As  to  the  Crown  as  a  cor- 
poration, see  Maitland,  16  L.  Q.  R.  335,  17 
id.  131. 

See  Demise  of  tiie  Crown. 

CROWN  CASES  RESERVED.  See  Court 
for  Consideration  of  Crown  Cases  Re- 
served. 

CROWN  D  E  BTS.  Debts  due  to  the  crown, 
which  are  put,  by  various  statutes,  upon  a 
different  footing  from  those  due  to  a  sub- 
ject. 

CROWN  LANDS.  The  demesne  lands  of 
the  crown.     2  Steph.  Com.  534. 

CROWN  LAW.  In  England.  Criminal 
law,  the  crown  being  the  prosecutor. 

CROWN  OFFICE.  The  criminal  side  of 
the  court  of  king's  bench.  The  king's  attor- 
ney in  this  court  is  called  master  of  the 
crown  office.     4  Bla.  Com.  308. 

CROWN  SIDE.  The  criminal  side  of  the 
court  of  king's  bench.  Distinguished  from 
the  pleas  side,  which  transacts  the  civil  busi- 
ness.   4  Bla.  Com.  265. 

CROWN  SOLICITOR.  In  England.  The 
solicitor  to  the  treasury. 

CRUEL    AND     UNUSUAL    PUNISHMENT. 

See  Punishment. 

CRUELTY.    As  between  husband  and  Wife. 
See  Legal  Cruelty. 
Cruelty  towards  weak  and  helpless  persons 


takes  place  where  a  party  bound  to  provide 
for  and  protect  them  either  abuses  them  by 
whipping  them  unnecessarily,  or  by  neglect- 
ing  to   provide   for   them   those   neces 
which  their  helpless  condition  requires, 
posing  a  person  of  tender  years,  under  one's 
care,   to  the  inclemency  of  the  weather;    - 
Campb.  650;   keeping  each  a  child,  unal.le  to 
provide  for  himself,  without  adequate  food; 
1  Leach  137;    Russ.  &  R.  20 ;    or  an 
neglecting  to  provide  food  and  medical  care 
to  a  pauper  having  argent  and  Immediate  oc- 
casion for  them;    Rosa  &  R-  46;    are  ex- 
amples of  this  species  of  cruelty. 

In  many  of  the  principal  cities,  beginning 
with  New  York,  in  April  1875,  SOCleti< 
the  prevention  of  cruelty  to  children  have 
been  formed,  authorized  to  prosecute  persons 
who  maltreat  children,  or  force  them  to  pur- 
sue improper  and  dangerous  employments  '• 
N.  Y.  Act  of  April  21,  1875;  Delafield  on 
Children,  1876.  Stat.  42  &  43  Vict.  c.  34  reg- 
ulates certain  employments  for  children.  By 
the  act  of  Congress  of  February  13,  1SS5,  the 
association  for  the  prevention  of  cruelty  to 
animals  for  the  District  of  Columbia,  was 
authorized  to  extend  its  operation,  under 
the  name  of  the  Washington  Humane  Socie- 
ty, to  the  protection  of  children  as  well  as 
animals  from  cruelty  and  abuse,  and  the 
agents  of  the  society  have  power  to  prefer 
complaints  for  the  violation  of  any  law  re- 
lating to  or  affecting  the  protection  of  chil- 
dren. They  may  also  bring  before  the  court 
any  child  who  is  subjected  to  cruel  treat- 
ment, abuse  or  neglect,  or  any  child  under 
sixteen  years  of  age  found  in  a  house  of  ill- 
fame,  and  the  court  may  commit  such  child 
to  an  orphan  asylum  or  other  public  char- 
itable institution,  and  any  person  wilfully  or 
cruelly  maltreating,  or  wrongfully  employ- 
ing such  child,  is  liable  to  punishment  23 
Stat.  L.  302. 

Cruelty  to  animals  is  an  indictable  offence. 
A  defendant  was  convicted  of  a  misdemeanor 
for  tying  the  tongue  of  a  calf  so  near  the 
root  as  to  prevent  its  sucking,  in  order  to 
sell  the  cow  at  a  greater  price,  by  giving  to 
her  udder  the  appearance  of  being  full  of 
milk  while  affording  the  calf  all  it  needed; 
.Morris  &  Clark's  Cases,  6  City  H.  Rec.  (N. 
Y.)  62.  A  man  may  be  indicted  for  cruelly 
beating  his  horse;  U.  S.  v.  Jackson,  4  Cra. 
C.  C.  483,  Fed.  Cas.  No.  15,4r>:'. ;  9  L.  T.  R. 
(N.  S.)  175;  Com.  v.  Lufkin,  7  Allen  (Mass.) 
579;  3  B.  &  S.  382  ;  State  v.  Avery,  44  N.  H. 
392;  Collier  v.  State,  4  Tex.  App.  12:  Ueeker 
v.  State,  4  Tex.  App.  234;  State  v.  Bogardus, 
4  Mo.  App.  215;  State  v.  Haley,  52  Mo.  App. 
520;  Swartzbangh  v.  People,  85  111.  457;  Com. 
v.  Curry,  150  Mass.  509,  23  N.  E.  212;  See 
Com.  v.  McClellan,  101  Mass.  34;  State  v. 
Porter,  112  N.  C.  8S7,  16  S.  B.  915 ;  Tinsley 
v.  State  (Tex.)  22  S.  W.  39;  or  for  cruel 
treatment  of  a  hen;  State  v.  Neal.  120  N. 
C.  613,  27  S.  E.  81,  58  Am.  St  Rep.  810. 


CRUELTY 


736 


CUI  IN  VITA 


Under  12  and  13  Vict.  c.  92,  §  2,  dishorn- 
ing cattle  is  not  an  offence  where  the  opera- 
tion is  skilfully  performed ;  16  Cox,  Cr.  Cas. 
101.  This  practice  is  allowed  in  Pennsyl- 
vania ;  Act  Pa.  1895,  June  25,  P.  L.  286.  In 
Massachusetts  it  was  held  that  a  fox  is  an 
animal  in  the  sense  of  the  statute,  and  a 
person  letting  loose  a  captive  fox  to  be  sub- 
jected to  unnecessary  suffering  (for  the  pur- 
pose of  being  hunted  by  dogs)  was  liable  to 
punishment ;  Com.  v.  Turner,  145  Mass.  296, 
14  N.  E.  130. 

Malice  toward  the  owner  is  not  an  ingredi- 
ent of  the  offense  created  by  a  statute  pro- 
viding for  the  punishment  of  every  person 
who  shall  wilfully  and  maliciously  maim  the 
horse  of  another;  People  v.  Tessmer,  171 
Mich.  522,  41  L.  R.  A.  (N.  S.)  433,  137  N.  W. 
214. 

CRUISE.  A  voyage  or  expedition  in  quest 
of  vessels  or  fleets  of  the  enemy  which  may 
be  expected  to  sail  in  any  particular  track 
at  a  certain  season  of  the  year.  The  region 
in  which  these  cruises  are  performed  is  usu- 
ally termed  the  rendezvous,  or  cruising-lat- 
itude. 

When  the  ships  employed  for  this  purpose, 
which  are  accordingly  called  cruisers,  have 
arrived  at  the  destined  station,  they  traverse 
the  sea  backwards  and  forwards,  under  an 
easy  sail,  and  within  a  limited  space,  con- 
jectured to  be  in  the  track  of  their  expected 
adversaries.  Wesk.  Ins. ;  Lex  Merc.  Red. 
271,  284;  Dougl.  509;  Marsh.  Ins.  196,  199, 
520 ;  The  Brutus,  2  Gall.  526,  Fed.  Cas.  No. 
2,060. 

CRY  DE  PAYS,  CRY  ,DE  PAIS.  A  hue 
and  cry  raised  by  the  country.  This  was  ab 
lowable  in  the  absence  of  the  constable  when 
a  felony  had  been  committed. 

CRYER.     See  Ckieb. 

CUCKING-STOOL.  An  engine  or  machine 
for  the  punishment  of  scolds  and  unquiet 
women. 

Called  also  a  trebucket,  tumbrel,  and  castigatory. 
Bakers  and  brewers  were  formerly  also  liable  to  the 
same  punishment.  Being  fastened  in  the  machine, 
they  were  immersed  over  head  and  ears  in  some 
pool;    Blount;    Co.  3d  Inst.  219;    4  Bla.  Com.  168. 

CUI  ANTE  DIV0RTIUM  (L.  Lat.  The  full 
phrase  was,  Cui  ipsa  ante  divortium  contra- 
dicere  non  potuit,  whom  she  before  the  di- 
vorce could  not  gainsay).  A  writ  which  an- 
ciently lay  in  favor  of  a  woman  who  had 
been  divorced  from  her  husband,  to  recover 
lands  and  tenements  which  she  had  in  fee- 
simple,  fee-tail,  or  for  life,  from  him  to 
whom  her  husband  had  aliened  them  during 
marriage,  when  she  could  not  gainsay  it; 
Fitzh.  N.  B.  240;  3  Bla.  Com.  183,  n.;  Stearns, 
Real  Act.  143;  Booth,  Real  Act.  188.  Abol- 
ished in  1833. 

CUI  IN  VITA  (L.  Lat.  The  full  phrase 
was,  Cui  in  vita  sua  ipsa  contradicere  non 
potuit,  whom  in  his  lifetime  she  could  not 


gainsay).  A  writ  of  entry  which  lay  for  a 
widow  against  a  person  to  whom  her  husband 
had  in  his  lifetime  aliened  her  lands.  Fitzh. 
N.  B.  193.  It  was  a  method  of  establishing 
the  fact  of  death,  being  a  trial  with  wit- 
nesses, but  without  a  jury.  The  object  of 
the  writ  was  to  avoid  a  judgment  obtained 
against  the  husband  by  confession  or  default. 
It  is  obsolete  in  England  by  force  of  32  Hen. 
VIII.  c.  28,  §  6.  See  6  Co.  8,  9.  As  to  its 
use  in  Pennsylvania,  see  3  Binn.  Appx. ;  Rep. 
Comm.  on  Penn.  Civ.  Code,  1835,  90.  Abol- 
ished in  England,  1833.  Blackstone  is  said 
to  have  shown  little  knowledge  of  its  his- 
tory; Thayer,  Evidence. 

CUL  DE  SAC  (Fr.  bottom  of  a  bag).  A 
street  which  is  open  at  one  end  only. 

It  may  be  a  highway;  L.  R.  16  Ch.  Div. 
449 ;  Bartlett  v.  Bangor,  67  Me.  460 ;  Adams 
v.  Harrington,  114  Ind.  66,  14  N.  E.  603; 
Penick  v.  Morgan  County,  131  Ga.  385,  62 
S.  E.  300 ;  L.  R.  16  Eq.  108.  The  earlier  au- 
thorities are  generally  to  the  contrary.  See 
11  East  376,  note ;  5  Taunt.  137 ;  5  B.  &  Aid. 
454;  Holdane  v.  Village  of  Cold  Spring,  23 
Barb.  (N.  Y.)  103 ;  Hawk.  PI.  Cr.  b.  1,  c.  76, 
s.  1 ;  Dig.  50.  16.  43 ;  43.  12.  1.  §  13 ;  47,  10,  15, 
§  7.  It  may  be  said  that  prima  facie  it  is 
not  a  highway;  see  18  Q.  B.  870;  State  v. 
Gross,  119  N.  C.  868,  26  S.  E.  91. 

CULPA.  A  fault;  negligence.  Jones, 
Bailm.  8. 

Culpa  is  to  be  distinguished  from  dolus,  the  latter 
being  a  trick  for  the  purpose  of  deception,  the  for- 
mer merely  a  negligence.  There  are  three  degrees 
of  culpa:  lata  culpa,  gross  fault  or  neglect;  levis 
culpa,  ordinary  fault  or  neglect;  levissima  culpa, 
slight  fault  or  neglect;  and  the  definitions  of  these 
degrees  are  precisely  the  same  as  those  in  our  law. 
Story,  Bailm.  §  18;  Waltham  Bank  v.  Wright,  8 
Allen  (Mass.)  122 ;  Woodman  v.  Nottingham,  49  N. 
H.  387,  6  Am.  Rep.  526.    See  Negligence. 

CULPABLE.  This  means  not  only  crim- 
inal but  censurable;  and  when  the  term  is 
applied  to  the  omission  by  a  person  to  pre- 
serve the  means  of  enforcing  his  own  rights, 
censurable  is  more  nearly  equivalent  As  he 
has  merely  lost  a  right  of  action  which  he 
might  voluntarily  relinquish,  and  has  wrong- 
ed nobody  but  himself,  culpable  neglect  would 
seem  to  convey  the  idea  of  neglect  for  which 
he  was  to  blame  and  is  ascribed  to  his  own 
carelessness,  improvidence  or  folly.  Wal- 
tham Bank  v.  Wright,  8  Allen  (Mass.)  122. 

CULPRIT.  A  person  who  is  guilty,  or  sup- 
posed to  be  guilty,  of  a  crime. 

When  a  prisoner  is  arraigned,  and  he  pleads  not 
guilty,  in  English  practice,  the  clerk,  who  arraigns 
him  on  behalf  of  the  crown,  replies  that  the  prisoner 
is  guilty,  and  that  he  is  ready  to  prove  the  accusa- 
tion.. This  is  done  by  writing  two  monosyllabic  ab- 
breviations,— cul.  prit.  4  Bla.  Com.  339;  1  Chit.  Cr. 
Law  416.  See  Christian's  note  to  Bla.  Com.  cited  ; 
3  Sharsw.  Bla.  Com.  340,  n.  9.  The  technical  mean- 
ing has  disappeared,  and  the  compound  is  used  in 
the  popular  sense  as  above  given. 

CULVERTAGE.  A  base  kind  of  slavery. 
The  confiscation  or   forfeiture  which   takes 


CULVERTAGE 


737 


CUMULATIVE  SENTENCE 


place  when  a  lord  seizes  his  tenant's  estate. 
Blount ;    Du  Cange. 

CUM  ONERE  (Lat).  With  the  burden; 
subject  to  the  incumbrance ;  subject  to  the 
charge.  A  purchaser  with  knowledge  of  an 
incumbrance  takes  the  property  cum  (mere. 
Co.  Litt  231a;  7  East  164. 

CUM  TESTAMENTO  ANNEXO  (Lat). 
With  the  will  annexed.  The  term  is  applied 
to  administration  when  tbere  is  no  executor 
named  in  a  will,  or  if  he  who  is  named  is  in- 
capable of  acting,  or  where  the  executor 
named  refuses  to  act.  If  the  executor  has 
died,  an  administrator  de  bonis  non  cum  tcx- 
1(un  en  to  anncxo  (of  the  goods  not  [already] 
administered  upon  with  the  will  annexed)  is 
appointed.    Often  abbreviated  d.  b.  n.  c.  t.  a. 

CUMULATIVE  EVIDENCE.  That  which 
goes  to  prove  what  has  already  been  estab- 
lished by  other  evidence.  Waller  v.  Graves, 
20  Conn.  305;  Glidden  v.  Dunlap,  28  Me. 
379 ;  Parker  v.  Hardy,  24  Pick.  (Mass.)  246 ; 
Parshall  v.  Klinck,  43  Barb.  (N.  Y.)  203; 
Able  &  Co.  v.  Frazier,  43  Iowa,  175. 

Newly  discovered  evidence,  if  cumulative 
merely,  is  not  sufficient  ground  for  a  new 
trial;  Hill  v.  Helman,  33  Neb.  731,  51  N.  W. 
128 ;  Johnson  v.  Palmour,  S7  Ga.  244,  13  S. 
E.  637;  White  v.  Ward,  35  W.  Va.  418,  14 
S.  E.  22 ;  Link  v.  R.  Co.,  3  Wyo.  6S0,  29  Pac. 
741 ;  Louisville,  N.  O.  &  T.  Ry.  Co.  v.  Cray- 
ton,  69  Miss.  152,  12  South.  271;  Davis  v. 
Mann,  43  111.  App.   301. 

CUMULATIVE   LEGACY.     See  Legacy. 

CUMULATIVE  REMEDY.  A  remedy  cre- 
ated by  statute  in  addition  to  one  which  still 
remains  in  force. 

CUMULATIVE  SENTENCE.  A  second  or 
additional  judgment  given  against  one  who 
has  been  convicted,  the  execution  or  effect  of 
which  is  to  commence  after  the  first  has  ex- 
pired. Clifford  v.  Dryden,  31  Wash.  545,  72 
Pac.  96. 

Thus,  where  a  man  is  sentenced  to  an  imprison- 
ment for  six  months  on  conviction  of  larceny,  and 
afterwards  he  is  convicted  of  burglary,  he  may  be 
sentenced  to  imprisonment  for  the  latter,  to  com- 
mence after  the  expiration  of  the  first  imprison- 
ment: this  is  called  a  cumulative  judgment.  And  if 
the  former  sentence  is  shortened  by  a  pardon,  or 
by  reversal  on  writ  of  error,  it  expires,  and  the 
subsequent  sentence  takes  effect,  as  if  the  former 
had  expired  by  lapse  of  time;  Kite  v.  Com.,  11  Mete. 
(Mass.)  581.  Where  an  indictment  for  misdemeanor 
contained  four  counts,  the  third  of  which  was  held 
on  error  to  be  bad  in  substance,  and  the  defendant, 
being  convicted  on  the  whole  indictment,  was  sen- 
tenced to  four  successive  terms  of  imprisonment  of 
equal  duration,  held  that  the  sentence  on  the  fourth 
count  was  not  invalidated  by  the  insufficiency  of  the 
third  count,  and  that  the  imprisonment  on  it  was 
to  be  computed  from  the  end  of  the  imprisonment 
on  the  second  count;    15  Q.   B.   594. 

Upon  an  indictment  for  misdemeanor  containing 
two  counts  for  distinct  offences,  the  defendant  may 
be  sentenced  to  imprisonment  for  consecutive  terms 
of  punishment,  although  the  aggregate  of  the  pun- 
ishments may  exceed  the  punishment  allowed  by 
law  for  one  offence,  and  this  rule  is  in  many  states 
prescribed  by  statute;  1  Bish.  New  Crim.  Proc.  § 
1327  (2)  ;    Whart.  Cr.  PI.  &  Pr.  §  932 ;    In  re  White, 

Bouv.— 47 


50  Kan.  299,  32  Pac.  36;  In  re  Walsh,  37  Neb.  454, 
55  N.  W.  1075;  In  re  Wilson,  11  Utah,  114,  39  Pac. 
498.  But  it  may  in  some  cases  be  the  means  of  per- 
petrating great  injustice.  See  O'Neil  v.  Vermont, 
114  U.  S.  323,  12  Sup.  Ct.  693,  36  L.  Ed.  450,  vhere  a 
justice  of  the  peace  imposed  a  fine  of  $0038,  and  on 
failure  to  pay  it,  a  sentence  of  nearly  00  years'  im- 
prisonment, for  selling  intoxcating  liquors.  The 
Supreme  Court  of  the  United  Status  refused  to  inter- 
fere.   See  31  Am.  L.  Reg.  619. 

In  the  absence  of  a  statute,  it  Is  generally  held 
that  the  court  has  power  to  impose  cumulative  sen- 
tences upon  conviction  under  separate  indictments 
for  separate  offences,  the  imprisonment  under  one 
to  commence  at  the  termination  of  that  under  the 
other  ;  Howard  v.  U.  S.,  75  Fed.  986,  21  C.  C.  A.  586, 
34  L.  R.  A.  509,  43  U.  S.  App.  678;  Simmons  v.  Coal 
Co.,  117  Ga.  315,  43  S.  E.  780,  61  L.  R.  A.  739  ;  In  re 
Breton,  93  Me.  39,  44  Atl.  1:5,  74  Am.  St.  Rep.  335  ; 
Rigor  v.  State,  101  Md.  4C5,  61  Atl.  631,  4  Ann.  Cas. 
719;  State  v.  Hamby,  126  N.  C.  1066,  35  S.  E.  614; 
Cuntra,  Ex  parte  Meyers,  44  Mo.  279;  Lockwood  V. 
Dills,  74  Ind.  57.  A  statute  giving  this  authority  Is 
ex  post  facto;  Baker  v.  State,  11  Tex.  App.  262; 
where  a  court  imposes  sentences  exceeding,  in  the 
aggregate,  its  jurisdiction,  only  the  excess  is  void  ; 
Harris  v.  Lang,  27  App.  D.  C.  84,  7  L.  R.  A.  (N.  S.) 
124,  7  Ann.  Cas.  141.  If  the  second  conviction  of 
three  is  erroneous,  the  third  at  once  follows  the 
first;  U.  S.  v.  Carpenter.  151  Fed.  214,  81  C.  C.  A. 
194,   9    L.    R.    A.    (N.    S.)    1043,    10   Ann.    Cas.   509. 

Upon  an  indictment  for  perjury  charging  offences 
committed  in  different  suits,  the  defendant,  upon 
conviction,  may  be  sentenced  to  distinct  punish- 
ments, although  the  suits  were  instituted  with  a 
common  object ;    5  Q.  B.  Div.  490. 

Where,  upon  trial  of  an  Indictment — containing 
several  counts — charging  separate  and  distinct  mis- 
demeanors, identical  In  character,  a  general  verdict 
of  guilty  is  rendered,  or  a  verdict  of  guilty  upon 
two  or  more  specified  counts,  the  court  has  no  power 
to  impose  a  sentence  or  cumulative  sentences  ex- 
ceeding in  the  aggregate  what  is  prescribed  by  stat- 
ute as  the  maximum  punishment  for  one  offence  of 
the  character  charged ;  People  v.  Liscomb,  60  N. 
Y.  559,  19  Am.  Rep.  211 ;  but  this  case  is  said  to 
stand  alone.  See  1  Bish.  New  Cr.  Proc.  §  1327  (2); 
6  App.  Cas.  241. 

CUMULATIVE  VOTING.  A  method  of 
voting  in  which  a  voter,  in  voting  for  a 
class  of  officers,  can  distribute  his  votes 
among  the  candidates  in  such  proportion  as 
he  sees  fit  It  does  not  exist  except  by  a  con- 
stitutional or  statutory  provision ;  State  v. 
Stockley,  45  Ohio  St  304,  13  N.  B.  279;  this 
appears  to  be  the  settled  rule ;  the  cases 
found  in  the  books  are. all  on  statutory  pro- 
visions. 

The  right  of  a  stockholder  to  vote  cumu- 
latively cannot  be  exercised  on  a  single  prop- 
osition, such  as  a  question  of  adjourn 
Bridgers  v.  staton,  150  N.  O.  216,  83  S.  EL 
892;  the  motives  in  exercising  this  right  can- 
not be  inquired  into;  Chicago  Macaroni  Mfg. 
Co.  v.  Bogglano,  202  111.  312.  G7  N.  E.  17. 
The  law  providing  for  cumulative  voting  of 
stock  Is  not  applicable  to  an  election  of  man- 
agers of  a  partnership  association ;  Attorney 
General  v.  McVichie,  138  Mich.  387,  101  N. 
W.  552. 

CUNEAT0R.  A  coiner.  Du  Cange.  Cun- 
eare,  to  coin.  Cuneus,  the  die  with  which 
to  coin.  Cuneata,  coined.  Du  Cange;  Spel- 
man,  Gloss. 

CUR.  ADV.  VULT.     See  Cubia  Advisabe 

VULT. 


CURATE 


738 


CURATRIX 


CURATE.  One  who  represents  the  incum- 
bent of  a  church,  parson  or  vicar,  and  takes 
care  of  the  church  and  performs  divine  serv- 
ices in  his  stead.  An  officiating  temporary 
minister  in  the  English  church  who  repre- 
sents the  proper  incumbent.  Burn,  Eccl. 
Law ;   1  Bla.  Com.  393.     See  Cure  of  Souls. 

CURATIO    (Lat).       In    Civil    Law.       The 

power  or  duty  of  managing  the  property  of 
him  who,  either  on  account  of  infancy  or 
some  defect  of  mind  or  body,  cannot  manage 
his  own  affairs.  The-  duty  of  a  curator  or 
guardian.     Calviniis,  Lex. 

CURATOR.  In  Civil  Law.  One  legally 
appointed  to  take  care  of  the  interests  of  one 
who,  on  account  of  his  youth,  or  defect  of 
his  understanding,  or  for  some  other  cause, 
is  unable  to  attend  to  them  himself ;  a  guard- 
ian. 

There  are  curators  ad  bona  (of  property),  who  ad- 
miniyter  the  estate  of  a  minor,  take  care  of  his  per- 
son, and  intervene  in  all  of  his  contracts;  curators 
ad  litem  (of  suits),  who  assist  the  minor  in  courts 
of  j'istice,  and  act  as  curators  ad  bona  in  cases 
where  the  interests  of  the  curator  are  opposed  to  the 
interests  of  the  minor.  There  are  also  curators  of 
insane  persons,  and  of  vacant  successions  and  ab- 
seDt  heirs. 

In  Missouri  the  term  has  been  adopted  from  the 
civil  law  and  it  is  applied  to  the  guardian  of  the 
ward's  estate,  as  distinct  from  the  guardian  of  his 
person;  Duncan  v.  Crook,  49  Mo.  117.  In  Scotland, 
it  is  pronounced  Ctirator. 

Under  the  Roman  law,  the  guardian  of  a  minor, 
^oth  as  to  person  or  property,  was  called  a  tutor 
(q.  v.)  ;  and  if,  after  being  of  an  age  to  exercise  his 
-ights,  he  needed  a  person  to  look  after  his  rights, 
such  person  was  called  a  curator.  Sandars,  Inst. 
Just.  Introd.  xl.  A  person  who  had  attained  the  age 
of  puberty  was  not  required  to  have  a  curator,  but 
if  he  had  much  property  he  was  almost  certain  to 
have  one,  as  it  was  part  of  his  tutor's  duty  to  urge 
lim  to  do  so;    id.  74;    Dig.  xxvi.  7.  5.  5. 

Interim  Curator.  In  England.  A  person  appoint- 
ed by  justices  of  the  peace  to  take  care  of  the  prop- 
erty of  a  felon  convict  until  the  appointment  by  the 
:rown  of  an  administrator  for  the  same  purpose; 
"Hat.  33  &  34  Vict.  c.  23  ;    4  Steph.  Com.  462. 

CURATOR    BONIS    (Lat.).     In    Civil   Law. 

A.  guardian  to  take  care  of  the  property. 
Calvinus,  Lex. 

In  Scotch  Law.  A  guardian  for  minors, 
lunatics,  etc.  Halk'ers,  Tech.  Terms;  Bell, 
Diet. 

CURATOR  AD  HOC.  A  guardian  for  this 
special  purpose. 

A  curator  ad  hoc  can  be  appointed  to  pro- 
ceed against  the  tutor  for  an  accounting  or 
his  removal  only  when  there  is  no  under- 
tutor ;  Welch  v.  Baxter,  45  La.  Ann.  1062,  13 
South.   629. 

CURATOR  AD  LITEM  (Lat).  Guardian 
for  the  suit.  In  English  law,  the  correspond- 
ing phrase  is  guardian  ad  litem. 

CURATORSHIP.    The  office  of  a  curator. 

Curatorship  differs  from  tutorship  (q.  v.)  in  this, 
that  the  latter  is  instituted  for  the  protection  of 
property  in  the  first  place,  and  secondly,  of  the  per- 
son ;  while  the  former  is  intended  to  protect,  first, 
the  person,  and,  secondly,  the  property.  1  Legons 
Elem.  du  Droit  Civ.  Bom.  241. 


CURATRIX.  A  woman  who  has  been  ap- 
pointed to  the  office  of  a  curator. 

CURE  BY  VERDICT.  See  Aideb  by  Ver- 
dict. 

CURE  OF  SOULS.  The  ordinary  duties  of 
an  officiating  clergyman. 

Curate  more  properly  denotes  the  incumbent  in 
general  who  hath  the  cure  of  souls;  but  more  fre- 
quently it  is  understood  to  signify  a  clerk  not  insti- 
tuted to  the  cure  of  souls,  but  exercising  the  spirit- 
ual office  in  a  parish  under  the  rector  or  vicar.  2 
Burn,  Eccl.  Law  54;    1  H.   Bla.  424. 

CURFEW  (French,  couvre,  to  cover,  and 
feu,  fire).  This  is  generally  supposed  to  be 
an  institution  of  Williain  the  Conqueror,  who 
required,  by  ringing  of  the  bell  at  eight 
o'clock  in  the  evening,  that  all  lights  and 
fires  in  dwellings  should  then  be  extinguish- 
ed. But  the  custom  is  evidently  older  than 
the  Norman;  for  we  find  an  order  of  King 
Alfred  that  the  inhabitants  of  Oxford  should 
at  the  ringing  of  that  bell  cover  up  their 
fires  and  go  to  bed.  And  there  is  evidence 
that  the  same  practice  prevailed  at  this  pe- 
riod in  France,  Normandy,  Spain,  and  prob- 
ably in  most  of  the  other  countries  of  Europe. 
Henry,  Hist,  of  Britain,  vol.  3,  567.  It  was 
doubtless  intended  as  a  precaution  against 
fires,  which  were  very  frequent  and  destruc- 
tive when  most  houses  were  built  of  wood. 

That  it  was  not  intended  as  a  badge  of  in- 
famy is  evident  from  the  fact  that  the  law 
was  of  equal  obligation  upon  the  nobles  of 
court  and  upon  the  native-born  serfs.  And 
yet  we  find  the  name  of  curfew  law  employ- 
ed as  a  by-word  denoting  the  most  odious 
tyranny. 

The  curfew  is  spoken  of  in  1  Social  Eng- 
land 373,  as  having  been  ordained  by  Wil- 
liam I.  in  order  to  prevent  nightly  gather- 
ings of  the  people  of  England. 

It  appears  to  have  met  with  so  much  op- 
position that  in  1103  we  find  Henry  I.  repeal- 
ing the  enactment  of  his  father  on  the  sub- 
ject ;  and  Blackstone  says  that,  though  it 
is  mentioned  a  century  afterwards,  it  is 
rather  spoken  of  as  a  time  of  night  than  as 
a  still  subsisting  custom.  Shakespeare  fre- 
quently refers  to  it  in  the  same  sense.  This 
practice  is  still  pursued,  in  many  parts  of 
England  (Lincoln's  Inn,  among  them)  and  of 
this  country,  as  a  very  convenient  mode  of 
apprising  people  of  the  time  of  night.  It  was 
enacted  in  Utah  (1903)  and  other  states. 

CURIA.  In  Roman  Law.  One  of  the  divi- 
sions of  the  Roman  people.  The  Roman  peo- 
ple were  divided  by  Romulus  into  three  tribes 
and  thirty  curies:  the  members  of  each  curia 
were  united  by  the  tie  of  common  religious 
rites,  and  also  by  certain  common  political 
and  civil  powers.  Dion.  Hal.  1.  2,  p.  82 ; 
Liv.  1.  1,  cap.  13;  Plut.  in  Rottiulo,  p.  30; 
Festus  Brisson,  in  verb. 

In  later  times  the  word  signified  the  sen- 
ate or  aristocratic  body  of  the  provincial 
cities  of  the  empire.    Brisson,  in  verb.;   Or- 


CURIA 


739 


CURIA  REGIS 


tolan,  Histoire,  no.  25,  408;  Ort.  Inst.  no. 
125. 

The  senate-house  at  Rome;  the  senate- 
house  of  a  provincial  city.  Cod.  10.  31.  2 ; 
Spelman,  Gloss. 

In  English  Law.  The  king's  court;  the 
palace;  the  royal  household.  The  residence 
of  a  noble;  a  manor  or  chief  manse;  the 
hall  of  a  manor.    Spelman,  Gloss. 

A  court  of  justice,  whether  of  general  or 
special  jurisdiction.  Pleta,  lib.  2,  1.  72,  §  1 ; 
Feud.  lib.  1,  2,  22;  Spelman;  Cowell ;  3  Bla. 
Com.  c.  iv.    See  Court. 

A  court-yard  or  enclosed  piece  of  ground; 
a  close.  Stat.  Edw.  Conf.  1,  6 ;  Bracton,  76, 
222  6,  335  b,  356  6,  358  ;  Spelman,  Gloss.  See 
Curia  Claudenda. 

The  civil  or  secular  power,  as  distinguish- 
ed from  the  church.     Spelman,  Gloss. 

CURIA  ADVISARE  VULT  (Lat.).  The 
court  wishes  to  consider  (the  matter). 

The  entry  formerly  made  upon  the  record 
to  Indicate  the  continuance  of  a  cause  until 
final  judgment  should  be  rendered. 

It  is  commonly  abbreviated  thus:  cur.  adv. 
vult,  or  c.  a.  v.  Thus,  in  2  B.  &  C.  172,  after 
the  report  of  the  argument  we  find  "c«r. 
adv.  vult"  then,  "on  a  subsequent  day  judg- 
ment was  delivered,"  etc. 

CURIA  CLAUDENDA.  See  De  Curia 
Claudenda. 

CURIA  MILITARIS.  See  Court  of  Chiv- 
alry; Court-Martial  ;  Harcourt,  His  Grace 
the  Steward,  etc. 

CURIA    REGIS   (Lat).     The  king's  court. 

In  English  Law.  A  court  established  in 
England  by  William  the  Conqueror  in  his 
own  hall. 

It  was  the  "great  universal"  court  of  the  king- 
dom; from  the  dismemberment  of  which  are  de- 
rived the  present  four  superior  courts  in  England, 
viz.:  the  High  Court  of  Chancery,  and  the  three 
superior  courts  of  common  law,  to-wit,  The  Queen's 
Bench,  Common  Pleas,  and  Exchequer.  It  was 
composed  of  the  king's  great  officers  of  state  resi- 
dent in  his  palace  and  usually  attendant  on  his  per- 
son ;  such  as  the  lord  high  constable  and  lord 
marescal  (who  chiefly  presided  in  matters  of  honor 
and  of  arms),  the  lord  high  steward  and  lord  great 
chamberlain,  the  steward  of  the  household,  the  lord 
chancellor  (whose  peculiar  duty  it  was  to  keep  the 
king's  seal,  and  examine  all  such  writs,  grants,  and 
letters  as  were  to  pass  under  that  authority),  and 
the  lord  high  treasurer,  who  was  the  principal  ad- 
viser in  all  matters  relating  to  the  revenue.  These 
high  officers  were  assisted  by  certain  persons  learned 
in  the  laws,  who  were  called  the  king's  justiciars  or 
justices,  and  by  the  greater  barons  of  parliament, 
all  of  whom  had  a  seat  in  the  aula  regia,  and  form- 
ed a  kind  of  court  of  appeal,  or  rather  of  advice 
In  matters  of  great  moment  and  difficulty.  These,  in 
their  several  departments,  transacted  all  secular 
business,  both  civil  and  criminal,  and  all  matters  of 
the  revenue ;  and  over  all  presided  one  special  mag- 
istrate, called  the  chief  justiciar,  or  capital 
ciarius  totius  Anglice,  who  was  also  the  principal 
minister  of  state,  the  second  man  in  the  kingdom, 
and,  by  virtue  of  his  office,  guardian  of  the  realm  in 
the  king's  absence.  This  court  was  bound  to  follow 
the  king's  household  in  all  his  expeditions;  on 
which  account  the  trial  of  common  causes  in  it  was 
found  very  burdensome  to  the  people,  and  accord- 
ingly  the   11th   chapter   of   Magna   Charta   enacted 


that  "communia  placita  non  sequantur  curiam 
regis,  sed  teneantur  in  aliquo  certo  loco,"  which 
certain  place  was  established  in  Westminster  Hall 
(where  the  aula  regis  originally  sat,  when  the  king 
resided  in  that  city),  and  there  it  has  ever  since 
continued,  under  the  name  of  Court  of  Common 
Pleas,  or  Common  Bench.  It  was  under  the  reign 
of  Edward  I.  that  the  other  several  officers  of  the 
chief  justiciar  were  subdivided  and  broken  into  dis- 
tinct courts  of  judicature.  A  court  of  chivalry,  to 
regulate  the  king's  domestic  servants,  and  an  august 
tribunal  for  the  trial  of  delinquent  i 
erected;  while  the  barons  reserved  to  themsi : 
parliament  the  right  of  reviewing  the  sentences  of 
the  other  courts  in  the  last  resort;  but  the  distribu- 
tion of  common  Justice  between  man  and  mai 
arranged  by  giving  to  the  court  of  chancery  juris- 
diction to  issue  all  original  writs  under  the  great 
seal  to  other  courts;  the  exchequer  to  manage 
the  king's  revenue,  the  common  pleas  to  determine 
all  causes  between  private  subjects,  and  the  court 
of  king's  bench  retaining  all  the  jurisdiction  not 
cantoned  out  to  the  other  courts,  and  particularly 
the  sole  cognizance  of  pleas  of  the  crown,  or  crim- 
inal causes.  3  Steph.  Com.  397  ;  3  Bla.  Com.  38 ; 
Bract.  1.  3.  tr.  1,  c.  7  ;  Fleta,  Abr.  2,  cc.  2,  3  ;  Gil- 
bert, Hist.  C.  Pleas,  Introd.  18  ;  1  Reeve,  Hist.  E. 
L.  48. 

The  Council  of  the  King.  Its  early  nature 
is  not  well  understood.  Probably  its  work- 
ing body  consisted  of  the  king's  great  officers 
of  state  and  the  judges ;  perhaps  others  were 
added  to  it  on  particular  occasion.  It  trans- 
acted business  of  state,  sometimes  taxation 
and  legislation.  It  was  a  court  of  appeal  and 
exercised  original  jurisdiction.  It  answered 
petitions,  which  was  its  chief  duty.  It  might 
send  the  petition  to  one  of  the  ordinary 
courts  or  lay  it  before  the  king.  It  came  to 
provide  new  remedies  for  new  wrongs  and 
distribute  justice  for  each  man's  des 
Later  it  was  tending  to  become  an  executive 
body. 

Formerly  the  Chancellor  was  the  leading 
legal  member  of  the  Council.  By  the  end 
of  the  Middle  Age's  the  Chancery  has  b< 
a  court,  but  its  connection  with  the  Council 
is  so  close  that  in  most  cases  the  Council 
gives  the  judgment  of  the  court  In  the 
Tudor  period  the  Council  was  re-organized 
and  the  Chancery  became  separate  from  it. 

At  the  end  of  the  13th  and  the  beginning 
of  the  14th  century,  Parliament  gradually 
became  separate  from  the  Council :  a  hun- 
dred years  later  a  division  began  to  take 
place  within  the  Council — into  the  Privy  <>r 
Ordinary  Council,  tie  great  officers  of  state 
and  certain  other  trusted  advisers  of  t lie 
king,  and  the  Great  Council,  which  coi 
of  the  rrivy  Council  and  the  great  body 
of  the  nobility,  spiritual  and  temporal.  The 
early  records  speak  of  the  Council;  about 
the  time  of  Henry  VI  the  term  Privy  Co 
is  met  with. 

The  royal  authority  was  exercised  through 
the  Council. 

Towards  the  end  of  the  10th  century,  a 
committee  of  practically  the  whole  Council 
Bitting  in  the  star  Chamber  gradually  ab- 
sorbed the  judicial  work  of  the  Council,  but 
the  process  was  gradual  and  there  are  few 
data.  The  Star  Chamber  had  the  title  of 
the  "Lords  of  the  Council  Sitting  in  the  '-'tar 


CURIA  REGIS 


740 


CURRENT  MONEY 


Chamber."  Every  member  of  the  Privy 
Council  bad  tbe  right  to  sit  there. 

At  the  beginning  of  the  Tudor  period  tbe 
court  of  Star  Chamber  bad  begun  to  present 
the  appearance  of  a  court  more  or  less  sepa- 
rate from  the  Council  acting  as  an  executive 
body. 

The  Long  Parliament  abolished  the  great- 
er part  of  the  judicial  business  of  the  Coun- 
cil but  only  as  to  English  bills  or  petitions. 
Its  appellate  jurisdiction  as  to  places  outside 
the  ordinary  English  law  was  retained. 

The  act  of  1833  provided  "for  the  better 
administration  of  justice  in  His  Majesty's 
Privy  Council."  * 

The  Judicial  Committee  of  the  Privy  Coun- 
cil is  a  committee  of  an  Executive  Council. 
Though  spoken  of  as  a  court,  it  has  not  a 
self-contained  and  independent  judicial  func- 
tion; its  legal  operation  receives  its  final 
consummation  and  sole  efficacy  from  tbe  di- 
rect official  action  of  the  sovereign  in  coun- 
cil. 

Historically  it  is  the  oldest  of  the  royal 
courts.  The  act  of  the  crown  in  allowing  or 
dismissing  an  appeal,  according  to  tbe  advice 
contained  in  the  report  of  the  Judicial  Com- 
mittee, is  the,  direct  lineal  descendant  of  the 
judgment  given  by  the  king  in  person  in  the 
Curia  Regis.     See  1  Holdsw.  Hist  E.  L.  23. 

See  Judicial  Committee  of  the  Privy 
Council;  Court  of  Star  Chamber;  Dicey, 
Privy  Council.  A  collection  of  cases  (1616- 
1626)  called  Abbrematio  Placitorum  contains 
the  earliest  information  of  the  working  of 
the  Curia  Regis.  See  Reports;  2  Sel.  Es- 
says, Anglo-Amer.  L.  H.  209. 

See  Procedure  in  the  Curia  Regis,  by  G.  B. 
Adams  (13  Columb.  L.  Rev.  277). 

CURRENCY.  A  term  commonly  used 
for  whatever  passes  among  the  people  for 
money,  whether  gold  or  silver  coin  or  bank 
notes.  Osgood  v.  McConnell,  32  111.  74 ;  Cock- 
rill  v.  Kirkpatrick,  9  Mo.  697 ;  Dugan  v. 
Campbell,  1  Ohio  115,  119;  Pilmer  v.  Bank, 
16  la.  323;  Klauber  v.'  Biggerstaff,  47  Wis. 
560,  3  N.  W.  357,  32  Am.  Rep.  773. 

CURRENT  MONEY.  That  which  is  in  gen- 
eral use  as  a  medium  of  exchange. 

It  means  the  same  thing  as  currency  of 
the  country.  Miller  v.  McKinney,  5  Lea 
(Tenn.)   96. 

The  adjective  "current,"  when  qualify- 
ing money,  is  not  the  synonym  of  "convert- 
ible." It  is  employed  to  describe  money 
which  passes  from  hand  to  hand,  and  is  gen- 
erally received.  Money  Is  current  which  is 
received  in  the  common  business  transac- 
tions, and  is  the  common  medium  in  barter 
and  trade ;   Stalwortb  v.  Blum,  41  Ala.  321. 

Current  money  means  that  money  which 
is  commonly  used  and  recognized  as  such; 
current  bank  notes,  such  as  are  convertible 
into  specie  at  the  counter  where  they  were 
issued.  Wharton  v.  Morris,  1  Dall.  (U.  S.) 
125,  1  L.  Ed.  65 ;  Pierson  v.  Wallace,  7  Ark. 


282;  see  Fry  v.  Dudley,  20  La.  Ann.  368; 
Kupfer  v.  Marc,  28  111.  388;  Conwell  v. 
Pumphrey,  9  Ind.  135,  68  Am.  Dec.  611;  Mc- 
Chord  v.  Ford,  3  T.  B.  Monr.  (Ky.)  166; 
Warren  v.  Brown,  64  N.  C.  381;  Stalworth 
v.  Blum,  41  Ala.  321. 

CURSITOR.  A  junior  clerk  in  the  court 
of  chancery,  whose  business  it  formerly  was 
to  write  out  from  tbe  register  those  forms 
of  writs  wbicn  issued  of  course.  1  Poll.  & 
M.  Hist.  Engl.  Law  174. 

Such  writs  were  called  writs  de  cursu  (of  course), 
whence  the  name,  which  had  been  acquired  as  early 
as  the  reign  of  Edward  III.  The  body  of  cursitors 
constituted  a  corporation,  each  clerk  having  a 
certain  number  of  counties  assigned  to  him.  Coke, 
2d  Inst.  670;  1  Spence,  Eq.  Jur.  238.  The  office  was 
abolished  by  5  &  6  Will.  IV.  c.  82. 

CURSITOR  BARON.  An  officer  of  the 
court  of  exchequer,  appointed  by  patent  un- 
der tbe  great  seal  to  be  one  of  tbe  barons  of 
tbe  exchequer.  Abolished  by  19  &  20  Vict,  c 
86.    Wharton,  Diet. 

CURTESY.  The  estate  to  which  by  com- 
mon law  a  man  is  entitled,  on  the  death  of 
his  wife,  in  tbe  lands  or  tenements  of  which 
she  was  seised  in  possession  in  fee  simple  or 
in  tail  during  their  coverture,  provided  they 
have  had  lawful  issue  born  alive  which  might 
have  been  capable  of  inheriting  the  estate. 
Chal.  R.  P.  314. 

An  estate  for  life  which  a  husband  takes 
at  the  death  of  his  wife,  having  had  issue 
by  her  born  alive  during  coverture,  in  all 
lands  of  which  she  was  seised  in  fact  of  an 
inheritable  estate  during  coverture. 

Tbe  right  of  the  husband  to  enjoy  during 
bis  life  land  of  which  bis  wife  is  at  any  time 
during  coverture  seised  in  fee  simple  (ab- 
solute or  defeasible)  or  in  fee  tail,  provided 
there  was  issue,  born  alive,  of  tbe  marriage. 
Demb.  Land  Tit.  §  109. 

It  is  a  freehold  estate  for  the  term  of  his 
natural  life.  1  Washb.  R.  P.  127.  In  the 
common  law  the  word  is  used  in  the  phrases 
tenant  by  curtesy,  or  estate  by  curtesy,  but 
seldom  alone;  while  in  Scotland  of  itself  it 
denotes  the  estate.  The  phrase  "tenant  by 
the  law  of  England"  was  also  used,  and  is 
said  to  have  been  of  earlier  origin ;  2  Poll.  & 
M.  Hist.  E.  L.  412. 

Some  question  has  been  made  as  to  the 
derivation  both  of  the  custom  and  its  name. 
It  is  said  that  the  term  is  derived  from  Cur- 
tis, a  court,  and  that  the  custom,  in  England 
at  least,  is  of  English  origin,  though  a  similar 
custom  existed  in  Normandy,  and  still  exists 
in  Scotland.  1  Washb.  R.  P.  128,  n. ;  Wright, 
Ten.  192;  Co.  Litt.  30  a;  2  Bla.  Com.  126; 
Ersk.  Inst.  380;  Grand  Cout.  de  Normandie, 
c.  119.  But  this  derivation  "is  considered 
more  ingenious  than  satisfactory,"  and  it  is 
suggested  that  it  is  possible  to  explain  the 
phrase  by  "some  royal  concession,"  as  "being 
reasonable  enough."  2  Poll.  &  M.  Hist.  E.  L. 
412. 

A  husband  has  an  estate  by  curtesy  after 


CURTESY 


741 


CURTILAGE 


the  death  of  his  wife  in  lands  which  he  had 
voluntarily  settled  upon  her,  if  he  did  not 
expressly  or  by  implication  relinquish  such 
rights  in  the  settlement ;  Depue  v.  Miller,  G5 
W.  \  a.  120,  64  S.  B.  740,  23  L.  R.  A.  (N.  B.) 
7751  In  re  Kaufmann,  142  Fed.  898;  Mea- 
cham  v.  Bunting,  156  111.  586,  41  N.  E.  175, 
28  L.  R.  A.  CIS,  47  Am.  St.  Rep.  239;  contra, 
Batliff  v.  Ratliff,  162  Va.  887,  47  S.  B.  1007. 
He  has  curtesy  in  the  equity  of  redemption 
of  the  wife's  lands;  Jackson  v.  Printing  Co., 
8G  Ark.  591,  112  S.  W.  161,  20  L.  EL  A.  (N. 
S.)  454.  That,  an  estate  was  purchased  by 
funds  from  the  wife's  separate  estate  and 
conveyed  to  the  husband  and  wife  jointly 
Will  not  deprive  him  of  his  curtesy  in  the 
property;  Donovan  v.  Griffith,  215  Mo.  149, 
114  S.  W.  621,  20  L.  R.  A.  (N.  S.)  825,  128 
Am.  St.  Rep.  458,  15  Ann.  (as.  724.  A  sur- 
viving husband  is  entitled  to  curtesy  out  of 
a  determinable  fee  owned  by  his  wife  with 
issue  born  alive  notwithstanding  the  contin- 
gency upon  which  the  fee  is  to  terminate  ex- 
ists at  the  time  of  her  death;  Carter  v. 
Couch,  157  Ala.  470,  47  South.  1006,  20  L.  R. 
A.  (X.  S.)  S58;  Hatfield  v.  Sneden,  54  N.  Y. 
280;  Webb  v.  First  Baptist  Church,  90  Ky. 
117.  13  S.  W.  3G2;  McMasters  v.  Negley,  152 
Pa  303,  25  Atl.  G41. 

In  Pennsylvania,  by  act  of  April  8,  1833, 
issue  of  the  marriage  is  no  longer  necessary, 
so  that  the  husband  gains  a  freehold  by  the 
marriage  itself;  Lancaster  County  Bank  v. 
Stauffer,  10  Pa.  399:  but  the  law  appli< 
when  the  estate  is  devisable,  not  to  an  estate 
tail  or  defeasible  fee;  McMasters  v.  Negley, 
152  Pa.  303,  25  Atl.  641.  That  the  wife's  title 
to  real  estate  is  not  acquired  until  after  the 
death  of  the  only  child  of  the  marriage  will 
not  deprive  the  husband  of  curtesy  in  the 
property;  Donovan  v.  Griffith,  21T,  Mo.  149, 
114  S.  W.  G21,  20  L.  R.  A.  (N.  S.)  825,  128 
Am.  St  Rep.  458,  15  Ann.  Cas.  724.  Ohio, 
Illinois.  Kentucky,  and  Maine  reduce  the 
husband's  life  estate  to  one-third,  calling  it 
"dower,"  and  dispense  with  birth  of  issue 
alive,  while  dower  remains  unchanged.  In 
South  Carolina  and  Georgia,  curtesy  has 
gone  out  of  use.  the  husband  having  under 
the  law  greater  benefits.  Demb.  Land  Tit.  § 
109.  Louisiana,  Texas,  California,  Nevada, 
Washington,  and  Idaho,  and  Arizona  and 
New  Mexico  have  the  "community"  system 
and  no  curtesy;  id.  §  111.  And  in  Indiana, 
Iowa,  Minnesota,  the  Dakotas,  Kansas,  Col- 
orado, Wyoming,  and  Mississippi,  dower  is 
applied  by  a  forced  lienship  of  the  widow 
and  there  is  no  curtesy ;  id.  §  108.  See 
Doweu. 

CURTILAGE.  The  enclosed  space  imme- 
diately surrounding  a  dwelling-house,  con- 
tained within  the  same  enclosure. 

It  is  defined  by  Blount  as  a  yard,  backside,  or 
piece  of  ground  near  a  dwelling-house,  in  'which 
they  sow  beans,  etc.,  yet  distinct  from  the  garden. 
Blount ;  Spelman.  By  others  it  is  said  to  be  a 
waste  piece  of  ground  so  situated.    Cowell. 

It  has  also  been  defined  as  "a  fence  or  enclosure 


of  a  small  piece  of  land  around  a  dwelling-house, 
usually  including  the  buildings  occupied  in  connec- 
tion with  the  dwelling-house,  the  enclosure  consist- 
ing either  of  a  separate  fence  or  partly  of  a  fence 
and  partly  of  the  exterior  of  buildings  so  within 
this  enclosure."  Com.  v.  Barney,  10  Cush.  (.'■' 
480. 

It  usually  Includes  the  yard,  garden,  or  field 
which   is  near  to  and  used  i:  Ith   the 

dwelling.     Cook  v.  State,  83  Ala.  C2,  3   South.  849,  3 
Am.  St.   Rep.  688.     See  Ivey  v.  State,  CI  A!;i 

The    term    is    used    in    determining    whether    the 
offence    of    breaking   into    a    barn    or   v. 
burglary.    See  4  Bla.  Com.  224;    1  Hale    PI.  Cr.  558; 
2  Russell,  Cr.  13;    Russ.  &  R.  289;    1  C.  &  K.  84. 

In    Michigan    the   meaning   of   curtilage   ha 

1  to  include  more  than  an  enclosure  near 
the  house.  People  v.  Taylor,  2  Mich.  230.  See  Cod- 
dington  v.  Dry  Dock  &  Wet  Dock  Co.,  31  N.  J.  U 
4S5;  State  v.   Shaw,  31  Me.   523. 

CURTILLUM.  The  area  or  space  within 
the  enclosure  of  a  dwelling-house.  Spelman, 
Gloss. 

CURTIS.     The  area  about  a   building;    a 

garden;   a  hut  or  tanner's  house;    a  farmer's 
house  with  the  land  enrolled  with  it. 

A    village  or   a    walled   town   contain 
small  number  of  hon 

The  residence  of  a  nobleman;  a  hall  or 
palace. 

A  court;  a  tribunal  of  justice.  1  Washb. 
R.  P.  120;    Spelman,  Gloss.;   3  Bla.  Com.  320. 

CUSTODES.  Keepers;  guardians;  con- 
servators. 

Custodcs  pads  (guardians  of  the  peace). 
1  Bla.  Com.  349. 

Custodcs  libertatis  Angliw  auctoritaU 
liamenti  (guardians  of  the  liberty  of  England 
by  authority  of  parliament.!.  The  style  in 
which  writs  and  all  judicial  process  ran  dur- 
ing the  grand  rebellion,  from  the  death  of 
Charles  I.  till  Cromwell  was  declared  Pro- 
tector.   Jacob,  Law  Diet. 

CUST0DIA  LEGIS.  In  the  custody  of  the 
law. 

When  property  is  lawfully  taken,  by  vir- 
tue of  legal  process,  it  is  in  the  custody  of 
the  law,  and  not  otherwise:  Gilman  v.  Wil- 
liams. 7  Wis.  334,  76  Am.  1 219. 

■Where  a  sheriff  has  taken  under  attach- 
ment more  than  enough  property  to  satisfy 
it,  the  property  is  not  in  rust*, din  i 
a  sense  that  will  prevent  a  levy  by  a  O.  S. 
marshal  in  a  suit  in  the  federal  court,  so  as 
to  give  the  latter  creditor  a  lien  on  0 
cess  af  Isfying   the   first   attachment; 

Goodbar    v.    Brooks,    5*7    Ark.   450.      Nor   are 
executions    issued    on    void    judgments    and 
their  returns  admissible  against   subsequent 
attaching  creditors,  t<>  show  that  the 
were  in  custodia  Icpis;    Burr  v.  Math 
Mo.  A*pp.  470. 

For  cases  on  property  and  funds  in  the 
custody  of  the  courts  not  subject  to  attach- 
ment, see  Curtis  v.  Lord,  10  L.  R.  A.  529, 
note. 

CUSTODY.     The  detainer  of  a  person  by 

virtue  of  a  lawful  authority.    3  Chit.  Pr.  355. 
The  care  and  possession  of  a  thing. 


CUSTODY 


742 


CUSTOM 


Custody  has  been  held  to  mean  nothing 
less  than  actual  imprisonment;  Smith  v. 
Com.,  59  Pa.  320;  Holland  v.  Com.,  S2  Pa. 
306,  22  Am.  Rep.  758.    See  Custodia  Legis. 

As  to  custody  of  children,  see  Parent  and 
Child  ;    Infant  ;    Divorce. 

CUSTOM.  Such  a  usage  as  by  common 
consent  and  uniform  practice  bas  become  the 
law  of  the  place,  or  of  tbe  subject-matter,  to 
which  it  relates. 

Custom  is  a  law  established  by  long  usage. 
Wilcox  v.  Wood,  9  Wend.  (N.  Y.)  349.  See 
Pollock,  1st  Bk.  of  Jurispr.  263. 

It  differs  from  prescription,  which  is  personal  and 
is  annexed  to  the  person  of  the  owner  of  a  particu- 
lar estate ;  while  the  other  is  local,  and  relates  to 
a  particular  district.  An  instance  of  the  latter  oc- 
curs where  the  question  is  upon  the  manner  of  con- 
ducting a  particular  branch  of  trade  at  a  certain 
place;  of  the  former,  where  a  certain  person  and 
his  ancestors,  or  those  whose  estates  he  has,  have 
been  entitled  to  a  certain  advantage  or  privilege,  as 
to  have  common  of  pasture  in  a  certain  close,  or  the 
like.  2  Bla.  Com.  263.  The  distinction  has  been  thus 
expressed:  "While  prescription  is  the  making  of  a 
right,  custom  is  the  making  of  a  law;"  Laws.  Us. 
&  Cust.  15,  n.  2.  . 

General  customs  are  such  as  constitute  a 
part  of  the  common  law  of  the  country  and 
extend  to  the  whole  country. 

Particular  customs  are  those  which  are 
confined  to  a  particular  district;  or  to  the 
members  of  a  particular  class;  the  exist- 
ence of  the  former  are  to  be  determined  by 
the  court,  of  the  latter,  by  tbe  jury.  Laws. 
Us.  &  Cust.  15,  n.  3 ;  see  Bodfish  v.  Fox,  23 
Me.  90,  39  Am.  Dec.  611. 

In  general,  when  a  contract  is  made  in 
relation  to  matter  about  which  there  is  an 
established  custom,  such  custom  is  to  be  un- 
derstood as  forming  part  of  the  contract,  and 
may  always  be  referred  to  for  the  purpose  of 
showing  the  intention  of  the  parties  in  all 
those  particulars  which  are  not  expressed  in 
the  contract;  2  Pars.  Contr.  652,  603;  Fulton 
Bank  oT  New  York  v.  Benedict,  1  Hall  (N. 
Y.)  602;  Van  Ness  v.  Pacard,  2  Pet.  (U.  S.) 
138,  7  L.  Ed.  374;  Stultz  v.  Dickey,  5  Binn. 
(Pa.)  285,  6  Am.  Dec.  411;  1  M.  &  W.  476; 
L.  R.  17  Eq.  358;  Robinson  v.  Fiske,  25  Me. 
401 ;   Bragg  v.  Bletz,  7  D.  C.  105. 

Evidence  of  a  usage  is  admissible  to  ex- 
plain technical  or  ambiguous  terms;  3  B. 
&  Ad.  728;  Lane  v.  Bank,  3  Ind.  App.  299, 
29  N.  E.  613 ;  Nonantum  Worsted  Co.  v.  Mfg. 
Co.,  156  Mass.  331,  31  N.  E.  293.  But  evi- 
dence of  a  usage  contradicting  the  terms  of 
a  contract  is  inadmissible;  2  Cr.  &  J.  244; 
Brown  v.  Foster,  113  Mass.  136.  18  Am.  Rep. 
463;  Farmers'  &  Mechanics'  Nat.  Bank  of 
Buffalo  v.  Logan,  74  N.  Y.  586;  Exchange 
Bank  of  Virginia  v.  Cookman,  1  W.  Va.  69  ; 
Gilbert  v.  McGinnis,  114  111.  28,  2S  N.  E. 
MS2 ;  De  Cernea  v.  Cornell,  1  Misc.  399,  20  N. 
Y.  Supp.  895;  Globe  Milling  Co.  v.  Elevator 
Co.,  44  Minn.  153,  46  N.  W.  306.  Nor  can  a 
local  usage  affect  the  meaning  of  the  terms 
of  a  contract  unless  it  is  known  to  both  con- 
tracting parties;   Chateaugay  Ore  &  Iron  Co. 


v.  Blake,  144  U.  S.  476,  12  Sup.  Ct.  731,  36  L. 
Ed.  510;  nor  can  it  affect  a  contract  made 
elsewhere;  Insurance  Co.  of  North  America 
v.  Ins.  Co.,  140  U.  S.  5G5,  11  Sup.  Ct.  909,  35 
L.  Ed.  517. 

"Merely  that  it  varies  tbe  apparent  con- 
tract is  not  enough  to  exclude  the  evidence, 
for  it  is  impossible  to  add  any  material  in- 
cident to  the  written  terms  of  a  contract, 
without  altering  its  effect  more  or  less.  To 
fall  within  the  exception  of  repugnancy  the 
incident  must  be  such  as,  if  expressed  in 
tbe  written  contract,  would  make  it  insen- 
sible or  inconsistent ;"  Per  cur.  in  3  E.  &  B. 
715.  See  Leake,  Contr.  197 ;  7  E.  &  B.  274. 
In  order  to  establish  a  custom,  it  will  be 
necessary  to  show  its  existence  for  so  long 
a  time  that  "the  memory  of  man  runneth 
not  to  the  contrary,"  and  that  the  usage 
has  continued  without  any  interruption  of 
the  right;  for,  if  it  has  ceased  for  a  time 
for  such  a  cause,  the  revival  gives  it  a  new 
beginning,  which  will  be  what  the  law  calls 
within  memory.  It  will  be  no  objection,  how- 
ever, that  tbe  exercise  of  the  right  has  been 
merely  suspended.  1  Bla.  Com.  76 ;  2  id.  31 ; 
Freary  v.  Cooke,  14  Mass.  488;  L.  R.  7  Q.  B. 
214;  Ulmer  v.  Farnsworth,  80  Me.  500,  15 
Atl.  05.  See  Hyde  v.  News  Co.,  32  Mo.  App. 
29S.  It  must  not  have  begun  within  legal 
memory,  i.  e,  A.  D.  1189 ;  L  R.  [1905]  2  Ch. 
538;  but  a  jury  may  find  an  immemorial  cus- 
tom upon  proof  of  a  period  of  twenty  years 
or  so ;   21  L.  J.  Q.  B.  190. 

It  must  also  have  been  peaceably  ac- 
quiesced in  and  not  subject  to  dispute ;  for, 
as  customs  owe  their  origin  to  common  con- 
sent, their  being  disputed,  either  at  law  or 
otherwise,  shows  that  such  consent  was 
wanting;  Wood  v.  Hickok,  2  Wend.  (N.  Y.) 
501;  Rapp  v.  Palmer,  3  Watts  (Pa.)  178.  In 
addition  to  this,  customs  must  be  reason- 
able and  certain.  A  custom,  for  instance, 
that  land  shall  descend  to  the  most  worthy 
of  the  owner's  blood  is  void;  for  how  shall 
this  be  determined?  But  a  custom  that  it 
shall  descend  to  the  next  male  of  the  blood, 
exclusive  .of  females,  is  certain,  and  there- 
fore good ;  2  Bla.  Com.  7S ;  Browne,  Us.  & 
Cust.  21.    See  Minis  v.  Nelson,  43  Fed.  777. 

Evidence  of  usage  is  never  admissible  to 
oppose  or  alter  a  general  principle  or  rule 
of  law  so  as,  upon  a  given  state  of  facts,  to 
make  the  legal  right  and  liabilities  of  the 
parties  other  than  they  are  by  law ;  Browne, 
Us.  &  Cust.  135,  n;  Stoever  v.  Whitman's 
Lessee,  6  Binn.  (Pa.)  410;  16  C.  B.  N.  S. 
646;  Barnard  v.  Kellogg,  10  Wall.  (U.  S.) 
3S3,  19  L.  Ed.  987;  Warren  v.  Ins.  Co.,  104 
Mass.  518;  East  Birmingham  Land  Co.  v. 
Dennis,  85  Ala.  565,  5  South.  317,  2  L.  R.  A. 
836,  7  Am.  St.  Rep.  73;  Hopper  v.  Sage,  112 
N.  Y.  530,  20  N.  E.  350,  8  Am.  St.  Rep.  771; 
but  the  rule  is  said  by  Lawson  to  extend  no 
further  than  to  usages  which  "conflict  with 
an  established  rule  of  public  policy,  which  it 
is   not  to   the   general  interest  to  disturb." 


CUSTOM 


743 


CUSTOM 


Laws.  Us.  &  Cust.  48G.  With  respect  to  a 
usage  of  trade,  however,  it  is  suflicient  if  it 
appears  to  be  known,  certain,  uniform,  rea- 
sonable,  and  not  contrary  to  law;  Collings 
v.  Hope,  3  Wash.  C.  C.  150,  Fed.  Ca 
8,003;  U.  S.  v.  MacdanieL  7  Pet.  (U.  S.)  1, 
8  L.  Ed.  587;  Lowry  v.  Russell,  8  Pick. 
(Mass.)  360;  -1  B.  &  Aid.  210;  1  C.  &  P.  59; 
Grlssom  v.  Bank,  87  Tenn.  3.r>0,  10  S.  W.  774, 
3  L.  R.  A.  273,  10  Am.  St.  Rep.  869.  See 
Pickering  v.  Weld;  159  Mass.  522,  34  X.  E. 
1081.  But  if  not  directly  known  to  the  par- 
ties to  the  transaction,  it  will  still  be  binding 
upon  them  if  it  appear  to  be  so  general  and 
well  established  that  knowledge  of  it  may  be 
presumed;  Smith  v.  Wright,  1  Cai.  (N.  Y.) 
43,  2  Am.  Dec.  1G2;  4  Stark.  452;  1  Dougl. 
510.  A  usage  of  trade  is  sufficiently  long 
continued  if  it  has  existed  so  long  as  to  show 
that  the  parties  to  a  contract  meant  fc>  em- 
ploy the  expression  in  the  Bense  defined  by 
it;  Hyde  v.  News  Co.,  32  Mo.  App.  298.  And 
one  who  seeks  to  avoid  the  effect  of  a  noto- 
rious and  uniform  usage  of  trade  must  show 
that  he  was  ignorant  of  it ;  Robertson  v.  B. 
S.  Co.,  139  N.  Y.  416,  34  N.  E.  1053.  Whether 
a  trade  custom  is  established  by  the  evidence 
in  a  case,  and  whether,  if  so,  it  was  known 
to  the  party  contracting  or  was  so  well  es- 
tablished that  he  must  he  presumed  to  have 
known  of  it  and  contracted  with  reference 
to  it,  are  questions  for  the  jury;  New  Roads 
Oilmill  &  Mfg.  Co.  v.  Kline,  Wilson  &  Co., 
154  Fed.  296,  83  0/  C.  A.  1. 

Parties  to  a  contract  may  contract  to  ex- 
clude a  custom  of  trade  therefrom;  id.  To 
read  a  usage  into  a  contract,  it  must  be  con- 
sistent with  the  terms  of  the  writing ;  id. 

In  an  action  for  negligence,  proof  of  a 
custom  on  the  part  of  engine  drivers  to  un- 
couple the  locomotive  and  run  ahead  a  short 
distance  was  offered  to  show  the  measure  of 
duty.  It  was  held  that  such  a  custom,  to 
have  the  force  of  law,  or  to  furnish  a  stand- 
ard for  the  rights  and  acts  of  men,  must  he 
certain  and  uniform  and  so  well  known  that 
no  man  dealing  with  the  subject  would  be 
ignorant  of  it;  per  Sanborn,  C.  J.,  in  Chi- 
cago,  M.  &  St.  P.  Ry.  Co.  v.  Lindeman,  143 
Fed.  946,  75  C.  C.  A.  18  (C.  C.  A.,  Eighth 
Circuit). 

A  local  custom  is  usage  which  has  obtained 
the  force  of  law  and  is  in  truth  the  binding 
law  in  a  particular  district  or  at  a  particular 
place  of  the  persons  or  things  that  it  con- 
cerns; 9  A.  &  E.  421.  A  local  custom,  so  far 
as  it  extends,  supersedes  the  local  law;  5 
Bingh.  253;  but  it  cannot  prevail  against  an 
express  act  of  parliament;  [1899]  App.  (as. 
41.  The  particular  custom  must  have  been 
asserted  openly  and  acquiesced  in  by  the  per- 
sons who  were  affected  and  the  enjoyment 
must  have  been  peaceable.  It  must  have 
been  reasonable.    It  ought  to  be  certain. 

A  local  custom  cannot  supersede  or  modify 
a  statute;    Gore  v.  Lewis,  109  N.  C.  539,  13 


S.  E.  909;  Palmer  v.  Transportation  Co.,  70 
Hun    181,  27  N.  Y.  Supp. 

See  26  L.  J.  Ex.  219;  Stevens  v.  Reeves,  9 
Pick.     (Mass.  i    198J  land,   2 

Cai.  (N.  y.i  219;  2  F.  ft  F.  131;  Metcalf  v. 
Weld.  14  Cray  (Mass.)  210;  Renner  v.  Bank, 
9  Wheat   (U.  8.)  582,  6  L.  Ed.  166;  Gordon 
v.  Little,  8  S.  ft  B,    (Pa.)    533,   11  Am.  Dec. 
632;   Dougl.  201;   4  Taunt.  848;   Waring   v. 
Grady's  Bx'r,  49  Ala.  465,  20  Am.  B 
Goodenow  v.  Tyler,  7  Mi 
22;    I..    B.   'J    Ex.    101;   Cooper  v.   Kane, 
Wend,  i  X.  Y.  I  386,  32  Am!  Dec 
i  lark,  41   Md.   158,  20  Am.  l; 
Lawsoii;  Browne;  Da  &  Cust.;  note  to  Wi 
glesworth  v.  Dallison,  l  Sm.  Lea  L  Cas.  900; 
[1892]  Prob.  411;  Metropolitan  St.  R.  Co.  v. 
Johnson,    91    Ga.    466,    18    S.    E.    816.      See 
Usage. 

CUSTOM-HOUSE.  A  place  appointed  by 
law,  in  ports  of  entry,  where  Importers  of 
goods,  wares,  and  merchandise  are  bound  to 
enter  the  same,  in  order  to  pay  or  secure  the 
duties  or  customs  due  to  the  government. 

CUSTOM-HOUSE  BROKER.  A  person 
authorized  to  acl  Cor  parties,  at  their  option, 
in  the  entry  or  clearance  of  ships  and  the 
transaction  of  general  business.  Wharton. 
See  act  of  July  13,  1866,  §  9,  14.  U.  S.  Stat 
L.  117. 

CUSTOM  OF  LONDON.  Particular  regu- 
lations in  force  within  the  city  of  London. 
in  regard  to  trade,  apprentices,  widows  and 
orphans,  etc.,  which  form  part  of  the  com- 
mon law.  1  Bla.  Com.  75;  3  Steph.  Com. 
588.  See  Dud  Man's  Part.  The  custom 
of  London,  as  regards  intestate  succession, 
was  abolished  by  19  ft  20  Vict  c.  94;  as  re- 
gards foreign  attachment,  it  was  extended 
to  all  England  and  Wales  by  the  Common 
Law  Procedure  Act  of  1854,  and  is  the  basis 
of  the  law  on  that  subject  in  this  country. 
See  Attachment. 

Their  influence  on  the  early  institutions 
of  Pennsylvania  was  very  great;  Com.  v. 
Hill,  1S5  Pa.  392,  39  Atl.  1055. 

CUSTOM  OF  MERCHANTS.  A  system  of 
customs  acknowledged  and  taken  notice  of 
by  all  nations,  and  which  are.  therefore,  a 
part  of  the  general  law  of  the  land.  Se'e 
Law  Merchant;  1  Chit  Bla.  Com.  76,  n.  9. 
CUSTOM  OF  THE  REALM.  A  current 
description  of  the  common  law  of  England, 
which  is  said  not  to  be  unhistorical.  Pol- 
lock, First  Book  of  Jurispr.  252.  See  James 
C.  Carter.  Law,  Its  Origin,  etc. 

custom  of  YORK,  a  custom  of  Intes- 
tacy in  the  province  of  York  similar  to 
that  of  London.  Abolished  by  19  ft  20  Vict 
c.  94. 

CUSTOMARY  COURT  BARON.  See 
Court  Babon. 

CUSTOMARY  ESTATES.  Estates  which 
owe  their  origin  and  existence  to  the  custom 


CUSTOMARY  ESTATES 


744 


CUSTOMS 


of  the  manor  in  which  they  are  held.    2  Bla. 
Com.  149. 

CUSTOMARY  FREEHOLD.  A  class  of 
freeholds  held  according  to  the  custom  of  the 
manor,  derived  from  the  ancient  tenure  in 
villein  socage.  Holders  of  such  an  estate 
have  a  freehold  interest,  though  it  is  not 
held  by  a  freehold  tenure.  2  Bla.  Com.  149. 
In  reference  to  customary  freehold,  outside 
the  ancient  demesne  all  the  tenures  of  the 
non-freeholding  peasantry  are  in  law  one 
tenure,  tenure  in  villeinage;  1  Poll.  &  M. 
Hist.  Engl.  Law  3S4. 

CUSTOMARY  SERVICE.  A  service  due 
by  ancient  custom  or  prescription  only. 
Such  is,  for  example,  the  service  of  doing 
suit  at  another's  mill,  where  the  persons  res- 
ident in  a  particular  place,  by  usage,  time 
out  of  mind  have  been  accustomed  to  grind 
corn  at  a  particular  mill.    3  Bla.  Com.  234. 

CUSTOMARY  TENANTS.  Tenants  who 
hold  by  the  custom  of  the  manor.  2  Bla. 
Com.  149. 

CUSTOMS.  Taxes  levied  upon  goods  and 
merchandise  imported  or  exported.  Story, 
Const.  §  949;  Bacon,  Abr.  Smuggling. 

The  duties,  toll,  tribute,  or  tariff  payable 
upon  merchandise  exported  or  imported. 
These  are  called  customs  from  having  been 
paid  from  time  immemorial.  Expressed  in 
law  Latin  by  custuma,  as  distinguished  by 
consuetudines,  which  are  usages  merely.  1 
Bla.  Com.  314. 

Nine  general  appraisers  are  appointed  by 
the  president  (not  more  than  five  from  the 
same  political  party).  They  are  employed 
at  such  ports  and  within  such  limits  as  the 
Secretary  of  the  Treasury  shall  prescribe. 
Three  of  them  constitute  a  board  of  general 
appraisers  at  the  port  of  New  York.  It  is 
a  part  of  their  duties  to  make  reappraise- 
ments  of  the  dutiable  value  of  goods  on  de- 
mand of  the  importer,  etc.,  or  the  collector. 
There  is  an  appeal  from  the  appraiser  or 
person  acting  as  such,  or  from  the  general 
appraiser  in  cases  of  reappraisement  (either 
by  the  importer,  etc.,  or  by  the  collector)  to 
the  general  board  in  New  York  or  another 
b*oard  of  three  general  appraisers  designated 
by  the  Secretary. 

The  collector  fixes  the  rate  and  amount  of 
duties  chargeable.  If  an  importer,  etc.,  gives 
the  required  notice,  the  papers  are  then  trans- 
mitted to  the  general  board  in  New  York, 
or  to  another  such  board  designated  by  the 
Secretary.  From  its  decision,  an  appeal  lies 
to  the  district  court  in  the  district,  which 
may,  upon  request  of  the  importer,  etc.,  the 
Secretary,  or  the  collector,  direct  a  general 
appraiser  to  procure  further  evidence.  The 
court  then  determines  the  classification  and 
the  rate  of  duty.  It  may,  if  it  deems  the 
case  of  such  importance,  allow  an  appeal  to 
the  Supreme  Court,  and  shall  allow  one 
whenever  the   Attorney-General   requests   it 


within  30  days  from  a  decision.  Provision 
is  made  for  giving  publicity  to  the  rulings 
of  the  general  appraisers  and  the  boards. 
Act  of  June  10,  1S90,  as  amended  Aug.  5, 
1909. 

See  Smuggling;  Tariff;  Protest,  Pay- 
ment under. 

CUSTOS  BREVIUM  (Lat.).  Keeper  of 
writs.  An  officer  of  the  court  of  common 
pleas  whose  duty  it  is  to  receive  and  keep 
all  the  writs  returnable  to  that  court  and 
put  them  upon  file,  and  also  to  receive  of 
the  prothonotaries  all  records  of  nisi  prius, 
called  postcas.  Blount.  An  officer  in  the 
king's  bench  having  similar  duties.  Cowell ; 
Termes  de  la  Ley.  The  office  is  now  abol- 
ished. 

CUSTOS  MARIS  (Lat).  Warden  or 
guardfan  of  the  seas.  Among  the  Saxons,  an 
admiral.     Spelman,   Gloss.  Admiralius. 

CUSTOS  MORUM.  Applied  to  the  court 
of  king's  bench,  as  "the  guardian  of  the 
morals"   of  the  nation.     4  Steph.  Com.  311. 

CUSTOS  PLACITORUM  C0R0N/E  (Lat). 
Keeper  of  the  Pleas  of  the  Crown  (the  crim- 
inal records).  Said  by  Blount  and  Cowell 
to  be  the  same  as  the  Gustos  Rotulorum. 

CUSTOS  ROTULORUM  (Lat).  Keeperof 
the  rolls  of  the  peace.  The  principal  justice 
of  the  peace  of  a  county,  who  is  the  keeper 
of  the  records  of  the  county.  1  Bla.  Com. 
349.  He  is  always  a  justice  of  the  peace 
and  quorum,  is  the  chief  civil  officer  of  the 
king  in  the  county,  and  is  nominated  under 
the  king's  sign-manuaL  He  is  rather  to  be 
considered  a  minister  or  officer  than  a  judge. 
Cowell;  Lambard,  Eiren.  373;  4  Bla.  Com. 
272 ;  3  Steph.  Com.  37.  The  office  has  come 
to  be  united  with  that  of  the  lord-lieutenant 
of  the  county.    Maitland,  Justice,  etc.,  82. 

CUSTUMA.     Duties.    See  Consuetudo. 

CUSTUMA  ANTIQUA  SIVE  MAGNA  (Lat. 
ancient  or  great  duties).  The  duties  on 
wool,  sheepskin  or  wool-pelts  and  leather 
exported  were  so  called,  and  were  payable 
by  every  merchant,  stranger  as  well  as  na- 
tive, with  the  exception  that  merchant 
strangers  paid  one-half  more  than  natives. 
1  Bla.  Com.  314. 

CUSTUMA  PARVA  ET  NOVA  (Lat).  An 
impost  of  threepence  in  the  pound  sterling 
on  all  commodities  exported  or  imported  by 
merchant  strangers.  Called  at  first  the 
alien's  duty,  and  first  granted  by  stat  31 
Edw.  I.  Maddox,  Hist  Exch.  526,  532;  1 
Bla.  Com.  314. 

CUT.  A  wound  made  with  a  sharp  instru- 
ment State  v.  Patza,  3  La.  Ann.  512;  1 
Russ.  &  R.  104.  See  Binns  v.  Lawrence,  12 
How.  (U.  S.)  9,  13  L.  Ed.  871. 

CYNEBOTE.  A  mulct  anciently  paid,  by 
one  who  killed  another,  to  the  kindred  of  the 
deceased.     Spelman,  Gloss. 


CY  PPES 


745 


CY   I  . 


CY  PRES  (L.  Fr.  as  near  as).  The  rule 
of  construction  applied  to  a  will  (but  not  to 
a  deed)  by  which,  where  the  testator  evinces 
a  general  intention  to  be  carried  into  effect 
In  a  particular  mode  which  cannot  be  fol- 
lowed, the  words  shall  be  so  construed  as 
to  give  effect  to  the  general  intention.  3 
Hare  12;  2  Term  254  ;  2  Bllgh  49;  Sugd.  Pow. 
60;  1  Spence,  Eq.  .Tur.  532 ;  Bisph.  Eq.  §  120; 
McGrath,  Cy  Pres. 

The  doctrine  of  approximation,  whereby 
the  intent  of  the  testator  or  grantor,  which 
is  impracticable  to  carry  out  literally,  is  car- 
ried out  as  near  as  possible.  Mott  v.  Morris, 
21!)  Mo.  137,  155  S.  W.  434. 

As  commonly  understood  it  has  two  fea- 
tures—one  the  right  to  exercise  prerogative 
authority,  enabling  a  court  to  deal  with,  a 
bequest  to  a  charitable  use  having  no  desig- 
nated particular  purpose  as  a  bequest  to 
charity  generally,  treating  the  purpose  as 
the  legatee,  or  a  bequest  for  an  illegal  pur- 
pose, or  some  purpose  impossible  of  execu- 
tion for  some  reason ;  and  tbo  other,  the 
right  by  liberal  rules  of  construction  to  deal 
with  a  trust  having  a  designated  particular 
purpose,  though  in  general  terms,  and  en- 
force it  within  the  limits  of  such  purpose, 
supplying  the  trustee  if  necessary;  Tincher 
v.  Arnold,  147  Fed.  665.  77  C.  C.  A.  G49,  7 
L.  R.  A.  (N.  S.)  471,  8  Ann.  Cas.  917;  Har- 
rington v.  Pier,  105  Wis.  4S5,  S2  N.  W.  345, 
50  L.  R.  A.  307,  7G  Am.  St.  Rep.  924. 

The  principle  is  applied  to  sustain  wills 
in  which  perpetuities  are  attempted  to  be 
created,  so  that,  if  it  can  possibly  be  done, 
the  devise  is  not  regarded  as  utterly  void, 
but  is  expounded  in  such  a  manner  as  to 
carry  the  testator's  intention  into  effect  as 
far  as  the  law  respecting  perpetuities  will 
allow.  This  is  called  a  construction  cy  pres. 
Its  rules  are  vague,  and  depend  chiefly  upon 
judicial  discretion  applied  to  the  particular 
case.  Sedgwick,  Stat.  Law  265;  Story,  Eq. 
.Tur.  §  11<>7.  A  limitation  void  because  it 
offends  the  doctrine  of  perpetuity  will  be 
void  altogether,  and  cannot  be  held  under 
the  cy  prcs  rule  of  construction  to  be  good 
as  to  that  part  which  keeps  within  the  period 
of  perpetuity,  and  void  only  as  to  the  excess; 
Post  v.  Rohrbach,  142  111.  606,  32  N.  E.  6S7. 

It  is  also  applied  to  sustain  devises  and 
bequests  for  charities  (q.  v.).  In  its  origin 
the  doctrine  was  applied,  in  the  exercise  of 
the  royal  prerogative,  delegated  to  the  Lord 
Chancellor  under  the  sign  manual  of  the 
crown.  Where  there  was  a  definite  charita- 
ble purpose  which  was  illegal  and  could  not 
take  place,  the  chancellor  would  substitute 
another.  The  judicial  doctrine  under  this 
name  is  that  if  charity  be  the  general  sub- 
stantial intention,  though  the  mode  provided 
for  its  execution  fails,  the  English  chancery 
will  find  some  means  of  effectuating  it,  even 
by  applying  the  fund  to  a  different  purpose 
from  that  contemplated  by  the  testator,  but 
as  near  to  it  as  possible,  provided  only  it  be 


charitable;  Pisph.  Eq.  g  129;  Boyle,  Char. 
147,    155;    Shelf,    Mortal.  Uro.   C.    C. 

379;  7  Yes.  69,  82.     Wh< 
to   a    charitable   institution    which 
the  testator's  death,   but  ;>t  be- 

fore the  legacy  is  paid  over,  ii  i . 
property  of  the  charity  on  the  death  of  the 
testator,    and    upon    the    charity    ceasing    to 

exist  it  is  applicable  to  charitable  pu 
according  to  th<  e  of  cy  pres;  [l^rn] 

2  Ch.  236.     Most  of  the  cases  carry  ;! 
trine  beyond  what  is  allowed   where  private 
Interest     a  re  cm  eerned,  and  have  In  no  In- 
considerabl*  to  draw   for  their  sup- 

port on  the  prerogative  of  the  crown  and  the 
statute   of    charitable   uses;    43    Eliz.    c.   4. 
This  doctrine  dors   not  universally  obtain  in 
this  country  to  the  disinherison  of  heir 
next  of  kin.      See  Ohabitabi  Jack- 

son   v.   Phillips.    M    Allen    (Ma-  :    Vidal 

v.  Philadelphia.  2  How.  (U.  S.)  127,  11  L. 
Ed.   205;    Perin  v.   I  Bow.   (1 

465,  16  L.  Ed.  701;  Loring  v.  Marsh,  6  "Wall. 
(U.  S.)  337,  18  1*  Ed.  802;  Williams  v.  Wil- 
liams 8  N.  Y.  548. 

The  doctrine  of  cy  prcs  with  reference  to 
charitable  trusts  is  that  whore  a  definite 
fum-tion  or  duty  is  to  be  performed,  which 
cannot  bo  done  in  exact  conformity  with  the 
plan  of  the  person  who  has  provided  there- 
for, such  function  or  duty  will  be  perform- 
ed with  as  close  approximation  to  the  origi- 
nal plan  as  is  reasonably  practicable;  En- 
graham  v.  Ingraham,  169  111.  432,  48  N.  B. 
561,  49  N.  E.  320;  MacKenzie  v.  Trust* 
N.  J.  Eq.  652,  61  Atl.  1027,  3  L.  P.  A.  i  N.  S.  i 
227. 

In  cases  where  there  has  been  an  inten- 
tion to  make  an  unconditional  gift  to  a  non- 
existent corporation  or  society,  then  the  gift 
will  be  regarded  as  immediate  supported  up- 
on the  doctrine  of  cy  prcs;  RnsseU  v.  Allen. 
107  U.  S.  163,  2  Sup.  Ct.  327,  27  L.  Ed.  397; 
Swasey  v.  American  Bible  Soc.  57  Me.  523; 
dimming  v.  Peid  Memorial  Church,  64  <■ 
105;  Andrews  v.  Andrews,  110  111. 
Dodge  v.  Williams,  46  Wis.  70,  1  X.  W.  92, 
50  N.  W.  1103.  In  some  states,  however,  the 
power  to  administer  a  charitable  tn 
pres  is  declared  not  to  exist,  and  therefore 
gifts  to  coi] 'orations  not  in  being  are  void 
for  remoteness;  Shipman  v.  Rollins,  '.|v-  N. 
Y.  311;  Little  v.  Willford,  -"l  Minn.  173,  17 
N.  W.  2V2;  Methodist  Church  of  Newark  v. 
Clark.  41  Mich.  730,  3  X.  W.  207;  Barn  urn 
v.  Council  of  Baltimore,  62  Md.  27"..  : 
Rep.  21!);  Williams  v.  IV 
Though  the  disallowance  ct'  charitable  gifts 
to  corporations  not  in  being  seems  to  in-  the 
logical  consequence  of  repudiating  the  doe- 
trine  of  Cy  pre«,  yet  there  are  some  states 
whose  courts  repudiate  the  doctrine  of  cy 
prcs  and  yet  support  such  gifts;  Literary 
Fund  v.  Dawson,  10  Leigh  <\'a.i  147;  Pridg- 
es  v.  Pleasants.  ;::i  X.  < '.  30,  44  Am.  Dec.  94; 
Zeisweiss  v.  James,  63  Pa.  465,  3  Am.  Rep. 
558. 


CY  PRES 


746 


CY  PRES 


Upon  the  dissolution  of  a  charitable  cor- 
poration, its  property  will  be  appropriated 
by  the  court  to  the  purpose  most  nearly  akin 
to  the  intent  of  the  donors  and  will  not  be 
distributed  to  the  donors;  In  re  Centennial 
&  Memorial  Ass'n  of  Valley  Forge,  235  Pa. 
206,  83  Atl.  683. 

Where  the  perpetuity  is  attempted  to  be 
created  by  deed,  all  the  limitations  based 
upon  it  are  void;  Cruise,  Dig.  t.  38,  c.  9,  § 
34.  See,  1  Vern.  250;  2  Ves.  336,  337,  364, 
380 ;  3  id.  141,  220 ;  4  id.  13 ;  Com.  Dig.  Con- 
dition (D,  1)  ;  1  Roper,  Leg.  514;  Dane,  Abr. 
Index;  Domat,  Lois  Civ.  liv.  6,  t.  2,  §  1 ; 
Shelf,  Mortin. ;  Highmore,  Mortal. ;  8  H.  L. 
R.  69. 

The  cy  pres  doctrine  has  been  repudiated 
by  the  states  of  Alabama,  Iowa,  Indiana, 
Maryland,  Michigan,  Minnesota,  North  Caro- 
lina, Tennessee,  South  Carolina,  Virginia, 
West  Virginia  and  Wisconsin  (qnwre).  But 
the  doctrine  has  been  approved  in  all  the 
New  England  states,  also  Pennsylvania  and 
New  York;  in  Mississippi  and  Illinois,  and 
in  some  other  states,  the  question'  has  not 
been  decided.    Bisph.  Eq.  §  130;  Eliot's  Ap- 


peal, 74  Conn.  586,  51  Atl.  544;  Duggan  v. 
Slocum,  83  Fed.  244;  Lennig's  Estate,  154 
Pa.  209,  25  Atl.  1049;  Allen  v.  Stevens,  161 
N.  Y.  122,  55  N.  E.  568 ;  Howard  v.  Society, 
49  Me.  302. 

In  England,  a  gift  to  a  charity  which  fail- 
ed in  the  testator's  lifetime  is  not  within  the 
doctrine;  [1898]  1  Ch.  19;  otherwise,  if  the 
charity  never  existed;  [1902]  1  Ch.  276;  or 
if  the  name  be  left  blank ;  [1896]  2  Ch.  451, 
C.  A.  It  applies  where  there  is  a  gift  to  a 
charity  which  has  failed,  though  there  be  a 
gift  over  to  a  second  charity;  1  My].  &  K. 
410.  It  does  not  apply  if  the  gift  is  not 
charitable;  1  De  G.  F.  &  J.  399;  or  in  case 
of  a  gift  for  masses;  2  Drew.  425.  The 
cy  pres  scheme  will  be  settled  as  near  as 
possible  to  the  testator's  intention ;  10  CI.  & 
F.  908. 

CYR0GRAPHAR1US.     In  Old  English  Law. 

A  cyrographer.  An  officer  of  the  common 
pleas  court. 

CYR0GRAPHUM.  A  chirograph,  which 
see. 


D.  B.  N.,  OK  D.  B.  N.  C.  T.  A. 


747 


DAM. 


D 


D.  B.  N.,  or  D.  B.  N.  C.  T.  A.     See  Execu- 
tors  AND   A  DM  l.MSIItATORS. 

D.  S.  B.     See  Debet  Sine  Bkeve. 
D.  V.  N.     See  Devisavit  Vel  Now. 


DACION.  In  Spanish  Law.  The  real  ant* 
effective  delivery  of  an  object  in  the  execu- 
tion of  a  contract 

DAILY.     Every  day;  day  by  day.     Web. 
Where  a  statute  requires  an  advertisement 

to  be  published  in  a  daily  newspaper  it  is 
such  if  it  uses  the  term  "daily  newspaper" 
in  contradistinction  to  the  term  "weekly," 
"semi-weekly,"  or  "tri-weekly"  newspaper. 
The  term  was  used  and  is  to  be  understood 
in  its  popular  sense,  and  In  this  sense  it  is 
clear  that  a  paper  which,  according  to  its 
usual  custom,  is  published  every  day  of  the 
week  except  one,  is  a  daily  newspaper;  oth- 
erwise a  paper  which  is  published  every  day 
except  Sunday  would  not  be  a  daily  news- 
paper. Richardson  v.  Tobin,  45  Cal.  30.  It 
may  include  a  legal  journal;  Kellogg  v.  Car- 
rico,  47  Mo.  157. 

DAM.  A  construction  of  wood,  stone,  or 
other  materials,  made  across  a  stream  of  wa- 
ter for  the  purpose  of  confining  it;  a  mole. 
See  People  v.  Gaige,  23  Mich.  93;  Colwell 
v.  Water  Power  Co.,  19  N.  J.  Eq.  245. 

It  is  an  instrument  for  turning  the  water 
of  a  stream  to  the  use  of  a  mill ;  Burnham 
v.  Kempton,  44  N.  H.  78. 

The  word  is  sometimes  used  for  the  Rond 
formed  by  the  obstruction ;  Colwell  v.  Wa- 
ter Power  Co.,  19  N.  J.  Eq.  245 ;  Natoma  Wa- 
ter &  Mining  Co.  v.  Hancock,  101  Cal.  42,  31 
Pac.  112,  35  Pac.  334;  Hutchinson  v.  Ry. 
Co.,  37  Wis.  5S2;  and  it  is  held  to  be  synony- 
mous with  dyke;  Com.  v.  Tolman,  14!)  Mass. 
229,  21  N.  E.  377,  3  L.  R.  A.  747,  14  Am.  St. 
Rep.  414.  The  water  collected  by  a  dam  is 
not  properly  termed  a  reservoir,  as  its  object 
is  not  storage  of  water;  Natoma  Water  & 
Mining  Co.  v.  Hancock,  101  Cal.  42,  31  Pac. 
112,  35  Pac.  334. 

The  construction  of  dams  in  floatable 
streams  to  facilitate  their  use  is  in  some 
states  authorized  by  statute;  Brooks  v.  Riv- 
er Imp.  Co.,  82  Me.  17,  19  Atl.  87,  7  L.  R.  A. 
460,  17  Am.  St.  Rep.  459;  Kretzschmar  v. 
Meehan,  74  Minn.  211,  77  N.  W.  41;  Field  v. 
Log  Driving  Co.,  67  Wis.  569,  31  N.  W.  17; 
McLaughlin  v.  Mfg.  Co..  L03  N.  C.  100,  9  S. 
E.  307;  and  incidental  injuries  to  land  of 
riparian  proprietors  thereby  damaged  are 
held  to  be  consequential  injuries  incident  to 
their  proprietorship;  Brooks  v.  River  Imp. 
Co.,  S2  Me.  IT,  19  Atl.  87,  7  L.  K.  A.  460,  17 
Am.  St.  Rep.  459.  See  Logs;  Riparian 
Rights. 

The  owner  of  a  stream  not  navigable  may 
erect  a   dam  across  it,  provided   he  do  not 


thereby  materially  impair  the  rights  of  the 
proprietors  above  or  below  I  ■  of  the 

water  in  its  :>  ed  (low;    Gould,   Wa- 

ters 110,  n.;  Tyler  v.  Wilkinson,  1  Maa  401, 
Fed.  Cas.  No.  14,312;  Vandenburgb  v.  V: 
gen,  L3  Johns.  (N.  ST.)  212;    B<   - 
mlngs,  20  Johns.  iX.  Y.i  '.">.  11  An..  Dec  249; 
Boynton  v.  Rees,  :>  Pick.  (Mass.)  528 :    Wi 
worth  v.  Tillotson,  IB  Conn.  :;<:•;.  •';'.>  Am.  i  •■ 
391;    Betrich  v.  Deachler,  6  Pa.  32;    Shrunk 
v.    Xav.   Co.,  14   S.   &    It.   (Pa.)   71  ;     Scott  v. 
Willson,  3  X.  II.  321;    Daniels  v.   Saw   In 
127  Mass.  534;    Voter  v.  Bobbs,  69  Ma  19; 
Banna  v.  Clarke, 31  Graft  i  Va.)  36;  D 
Woolen   Mill   Co.   v.   Greer,   49    la.    490; 
Am.    L.    Reg.   147,   n.     He  may   even   detain 
the  water  for  the  purposes  of  a  mill,  for  a 
reasonable  time,   to  the  injury  of  an  older 
mill. — the  reasonableness  of  the  detention  in 
each   particular  case   being   a   question   for 
the  jury  ;   Ilartzall  v.  Sill,  12  Pa.  248  ;   Thom- 
as v.  Brackney,  17  Barb.  (X.  Y.i  654;    Snow 
v.  Parsons,  28  Vt.  459,  67  Am.  Dec.  723;  Park- 
er v.    Ilotchkiss,   25   Conn.   321;     Phillips   v. 
Sherman,  04  Me.  171;    Drake  v.  Woolen  Co., 
99   Mass.   574;     Hoxsie   v.    Iloxsie.   38   Mich. 
77;    Ilolden  v.  Lake  Co.,  53  N.  II.  552.     But 
he  must  not  unreasonably  detain  the  water ; 
Dllllng  v.  Murray,  6  Ind.  324,  63  Am.  Dec. 
385 ;   and  the  jury  may  find  the  constant  use 
of  the  water  by  night  and  a  detention  of  it 
by   day  to   be  an  unreasonable  use,   though 
there  be  no  design  to  injure  others;    Barrett 
v.  Parsons,  10  Cush.  (Mass.)  367;   see  Bullard 
v.  Mfg.  Co..  77  X.  Y.  525.    Xor  has  such  own- 
er the  right  to  raise  bis  dam  so  high  as  to 
cause  the  stream  to  flow  back  upon  the  land 
of  supra-riparian  proprietors;    1  B.  «fc  Aid. 
258;    Cowles  v.  Kidder,  24  N.  H.  364,  57  Am. 
Dec.  2S7;   L'nion  Canal  Co.  v.  Keiser,  19  Pa. 
134;    Pitman  v.  Poor,  38  Me.  237;    Ellington 
v.  Bennett,  59  Ga.  286;    Drew  v.  Inhabitants 
of  Westfield,  124  Mass.  461.     And  see  BACK- 
Wateb.      These    rights    may,    of    course,    be 
modified  by  contract  or  prescription. 

An  owner  maintaining  a  dam  acr< 
floatable  stream  is  entitled  to  an  Injunction 
against  the  operation  of  a  splash  dam  by  an 
upper  riparian  owner  in  such  manner  as  to 
Interfere  materially  with  the  continuity  of 
his  power  and  to  fill  his  pond  and  race  with 
dirt  ;  Trullinger  v.  Bowe,  53  Or.  219,  '.'7  Pac. 
54S,  99  Pac.  880,  22  L.  R.  A.  (N.  S.)  545. 

A  mill  proprietor  may  erect  and  maintain 
dams  in  a  floatable  stream,  but  he  must  keep 
open,  for  the  use  of  those  that  wish,  a  con- 
venient and  considerable  .passageway  for 
Logs  through  or  by  bis  dam;  Lancey  v.  Clif- 
ford, 54  Me.  187,  92  Am.  Dec.  561;  Connecti- 
cut River  Lumber  Co.  v.  Olcott  Falls  Co.,  65 
X.  II.  290,  21  Atl.  1090,  13  L.  R.  A.  826.; 
Powell  v.  Lumber  Co.,  12  Idaho,  723,  88  Pac. 
97;    he  may  erect  dividing  piers  to  separate 


DAM 


748 


DAM 


his  logs  from  the  common  mass,  but  he  must 
make  reasonable  provision  for  the  passage  of 
other  logs  without  unreasonable  hindrance; 
A.  C.  Conn.  Co.  v.  Mfg.  Co.,  74  Wis.  652,  43 
N.  W.  6G0. 

One  erecting  fences  and  culverts  across  a 
stream  is  not  liable  for  injuries  to  an  upper 
riparian  proprietor  because  they  are  not  suf- 
ficient to  pass  an  extraordinary  flood,  due  to 
the  giving  way  of  a  dam  or  to  an  unprec- 
edented rainfall;  American  Locomotive  Co. 
v.  Hoffman,  105  Va.  343,  54  S.  E.  25,  6  L.  R. 
A.  (X.  S.)  252,  8  Ann.  Cas.  773.  Riparian 
owners  upon  navigable  fresh  water  lakes  may 
construct  in  the  shore  waters  in  front  of  their 
lands  wharves,  piers,  landings,  and  booms; 
Revell  v.  People,  177  111.  468,  52  N.  E.  1052, 

43  L.  R.  A.  790,  69  Am.  St.  Rep.  257 ;  Mobile 
Transp.  Co.  v.  City  of  Mobile,  153  Ala.  409, 

44  South.  976,  13  L.  R.  A.  (N.  S.)  352,  127 
Am.  St.  Rep.  34. 

A  state  has  full  power,  in  the  absence  of 
legislation  by  congress,  to  authorize  dams 
across  interior  streams  although  previously 
navigable  to  the  sea ;  Manigault  v.  Springs, 
199  U.  S.  473,  26  Sup.  Ct.  127,  50  L.  Ed.  274. 

If  there  be  no  license  or  act  from  which  a 
license  will  necessarily  follow,  a  person 
erecting  a  dam  so  as  to  flood  the  land  of  an- 
other, is  a  trespasser  and  acts  at  his  peril; 
De  Vaughn  v.  Minor,  77  Ga.  809,  1  S.  E.  433. 

When  one  side  of  the  stream  is  owned  by 
one  person  and  the  other  by  another,  neither, 
without  the  consent  of  the  other,  can  build  a 
dam  which  extends  beyond  the  filum  aquae, 
thread  of  the  river,  without  committing  a 
trespass;  Cro.  Eliz.  269;  Tyler  v.  Wilkinson, 
4  Mas.  397,  Fed.  Cas.  No.  14,312;  Lindeman 
v.  Lindsey,  69  Pa.  93,  8  Am.  Rep.  219.  See 
Lois  des  Bat.  p.  1,  c.  3,  s.  1,  a.  3 ;  Pothier, 
Traits  du  Contrat  de  Socie'te',  second  app. 
236;  Stiles  v.  Hooker,  7  Cow.  (N.  Y.)  266; 
McCalmont  v.  Whitaker,  3  Rawle  (Pa.)  90,  23 
Am.  Dec.  102;  Anthony  v.  Laphain,  5  Pick. 
(Mass.)  175;    Goodwin  v.  Gibbs,  70  Me.  243. 

Many  of  the  states  have  statutes  enabling 
persons  to  build  dams  on  their  own  land,  al- 
though in  so  doing  the  land  of  a  higher  ri- 
parian owner  may  be  overflowed ;  and  in 
some  cases  this  permission  is  given  although 
the  party  may  own  the  land  on  one  side  only. 
In  all  these  instances,  however,  a  remedy  is 
provided  for  assessing  the  damages  resulting 
from  such  dam.  See  Angell,  Waterc.  ■§§  482, 
484. 

Where  the  natural  flow  of  water  has  been 
collected  by  a  permanent  artificial  dam  into 
an  artificial  channel,  and  such  condition  has 
continued  for  more  than  twenty  years,  the 
riparian  owners  acquire  a  prescriptive  right 
to  have  the  water  remain  at  such  high  stage, 
and  the  person  who  placed  the  permanent 
obstruction  in  the  stream,  and  all  other  per- 
sons claiming  under  him  are  estopped  from 
restoring  the  water  to  its  original, state;    4 

Hurlst.  &  C.  714;  Jones,  Easem.  SOS;  Washb. 


Easem.  %  47 ;   Woodbury  v.  Short,  17  Vt  387, 
44   Am.   Dec.    344;     Belknap    v.   Trimble,   3 
Paige  Ch.   (N.   Y.)  577;     Shepardson  v.  Per- 
kins, 58  N.  H.  354 ;  Delaney  v.  Boston,  2  Harr. 
(Del.)  489 ;    Mathewson  v.  Hoffman,  77  Mich. 
420,  43  N.  W.  879,  6  L.  R.  A.  349;    Smith  v. 
Youmans,  96  Wis.  103,  70  N.  W.  1115,  37  L. 
R.  A.  285,  65  Am.   St.  Rep.  30;    Murchie  v. 
Gates,  78  Me.  300,  4  Atl.  698 ;    Canton  Iron 
(lCo.  v.  Biwabik  Bessemer  Co.,  63  Minn.  367,- 
65  N.  W.  643 ;    City  of  Reading  v.  Althouse, 
93  Pa.  400 ;   Kray  v.  Muggli,  S4  Minn.  90,  S6 
N.  W.  8S2,  54  L.  R.  A.  473,  87  Am.  St.  Rep. 
332,  where  the  owner  of  the  dam  acquired 
his  right  to  maintain  it  by  prescription.    The 
owners  of  the  land  flooded  by  the  dam  had 
improved   their   property   with   reference   to 
the  changed  conditions,  the  court  held  that 
a  reciprocal  right  accrued  to  the  owners  of 
the  flooded  lands  to  have  the  dam  remain, 
and  that  the  person  who  maintained  it  could 
not  by  .any  affirmative  act  restore  the  stream 
to    its    original   condition.      The   decision    is 
criticised,  as  are  certain  expressions  to  the 
same  effect  in  Belknap  v.  Trimble,  3  Paige 
Ch.  (N.  Y.)  577,  as  not  being  in  accord  with 
the  weight  of  authority;     Farnham,  Waters 
2399;    Lake  Drummond  Canal  &  Water  Co. 
v.  Burnham,  147  N.  C.  41,  60  S.  E.  650,  17 
L.  R.  A.   (N.  S.)  945,  125  Am.  St.  Rep.  527. 
It  is  of  the  essence  of  such  an  easement  (to 
divert  a  stream  by  an  artificial  way)  that  it 
exists  for  the  benefit  of  the  dominant  tene- 
ment alone.    Being  in  its  very  nature  a  right 
created  for  the  benefit  of  the  dominant  own- 
er, its  exercise  by  him  cannot  create  a  new 
right  for  the  benefit  of  the  servient  owner. 
Lilce  any  other  right  its  exercise  may  be  dis- 
continued if  it  becomes  onerous  or  ceases  to 
be  beneficial  to  the  party  entitled;    L.  R.  6 
Q.  B.  578.    In  Lake  Drummond  Canal  &  Wa- 
ter Co.  v.  Burnham,  147  N.  C.  41,  60  S.  E. 
650,  17  L.  R.  A.  (N.  S.)  945,  125  Am.  St.  Rep. 
527,  it  is  said  that  decisions  upholding  the 
rights  of  the  servient  owner  may  be  upheld 
under  the  doctrines  of  dedication  and  estop- 
pel. 

The  degree  of  care  which  a  party  who  con- 
structs a  dam  across  a  stream  is  bound  to 
use,  is  in  proportion  to  the  extent  of  injury 
which  will  be  likely  to  result  to  third  per- 
sons provided  it  should  prove  insufficient. 
It  is  not  enough  that  the  dam  is  sufficient  to 
.resist  ordinary  floods;  for  if  the  stream  is 
occasionally  subject  to  great  freshets,  these 
must  likewise  be  guarded  against;  and  the 
measure  of  care  required  in  such  cases  is 
that  which  a  discreet  person  would  use  if 
the  whole  risk  were  his  own;  Lapham  v. 
Curtis,  5  Vt.  371,  26  Am.  Dec.  310 ;  Gray  v. 
Harris,  107  Mass.  492,  9  Am.  Rep.  61 ;  Washb. 
Easem.  *288;  Bristol  Hydraulic  Co.  v.  Boy- 
er,  67  Ind.  236 ;  State  v.  Water  Co.,  51  Conn. 
137. 

If  a  mill-dam  be  so  built  that  it  causes  a 
watercourse    to    overflow    the    surrounding 


DAM 


749 


DAMAGE 


country,  where  it  becomes  stagnant  and  un- 
wholesome, so  that  the  health  of  the  neigh- 
borhood is  sensibly  impaired,  such  dam  is  a 
public  nuisance,  for  which  its  owner  is  lia- 
ble to  indictment;  Douglass  v.  State,  4  Wis. 
387. 

The  owners  of  a  mill  dam  cannot  interfere 
with  the  right  of  the  public  to  float  Li 
a  stream;  Lancey  v.  Clifford,  54  Me.  487,  92 
Am.  Dec.  5G1;  but  one  injuring  the  dam  of 
a  riparian  owner  by  running  logs  down  a 
stream  must  show  that  the  Stream  was  navi- 
gable; 20  U.  C.  C.  P.  539.  As  to  the  right 
of  a  riparian  proprietor  on  a  navigable 
stream  to  recover  for  injuries  to  his  dam  by 
the  floating  of  logs  down  stream,  see 
which  see  also  as  to  the  conllicting  rights  of 
dam  owners  and  log  driving  companies.  See 
Carlson  v.  Imp.  Co.,  7:;  Minn.  12S,  75  N.  W. 
1044,  41  L.  R.  A.  372,  72  Am.  St.  Rep.  610  f 
Coyne  v.  Boom  Co.,  72  Minn.  533,  75  N.  W. 
748,  41  L.  R.  A.  494,  71  Am.  St.  Rep.  508.  So 
it  is  an  indictable  nuisance  to  erect  a  dam 
so  as  to  overflow  a  highway ;  State  v.  Phipps, 
4  Ind.  515;  Com.  v.  Fisher,  <;  Mete.  (Mass.) 
433 ;  see  Stone  v.  Peckham,  12  R.  I.  27 ;  or  so 
as  to  obstruct  the  navigation  of  a  public  riv- 
er; Newark  Plank  Road  Co.  v.  Elmer,  9  N.  J. 
Eq.  754 ;  Tyrrell  v.  Lockhart,  3  Blackf.  '(Ind.) 
13G ;  Williams  v.  Beardsley,  2  Ind.  591 ;  Mor- 
gan v.  King,  18  Barb.  (N.  Y.)  277 ;  Bacon  v. 
Arthur,  4  Watts  (Pa.)  437;  Hoxsie  v.  Iloxsie, 
38  Mich.  77 ;  Lagrone  v.  Trice,  57  Miss.  227 ; 
Ellis  v.  Harris'  Ex'r,  32  Gratt.  (Va.)  084.  See 
Irrigation;  River;  Watercourse ;  Riparian 
Proprietor;  Police  Power. 

DAMAGE.  The  loss  caused  by  one  person 
to  another,  or  to  his  property,  either  with 
the  design  of  injuring  him,  or  with  negli- 
gence and  carelessness,  or  by  inevitable  acci- 
dent. 

In  England,  in  the  common  law  courts,  it 
was  held  that  neither  in  common  parlance 
nor  in  legal  phraseology  is  the  word  "dam- 
age"' used  as  applicable  to  injuries  done  to 
property  :  40  L.  J.  Q.  B.  218 ;  41  L.  J.  C.  P. 
128. 

The  admiralty  courts  on  the  other  hand 
contended  that  the  word  did  include  claims 
for  personal  injury  and  even  for  loss  of  life; 
37  L.  J.  Adm.  14;  38  id.  12,  50;  46  L.  J.  P. 
D.  &  A.  71;    2  P.  D.  8. 

But  the  House  of  Lords  construing  section 
7  of  the  Admiralty  Court  Act,  24  Vict,  c  10, 
providing  that  "the  High  Court  of  Admiralty 
shall  have  jurisdiction  over  any  claim  Cor 
damages  done  by  any  ship"  established  the 
former  doctrine,  and  held  that  a  claim  for 
loss  of  life  under  Lord  Campbell's  Act  Is  not 
a  claim  for  damage  within  the  provisions  of 
the  Admiralty  Court  Act;  54  L.  J.  P.  D.  & 
A.  9;    10  App.  Cas.  59. 

But  the  word  may  be  controlled  by  the  con- 
text and  can  mean  personal  injury;  52  L.  J. 
Q.  B.  395 :  and  there  seems  in  this  country 
to  be  no  distinction  between  the  meaning  of 
the  words  damage  and  injury. 


Damage  to  the  is  used  In  the  Mas- 

sachusetts statute  relating  to  survival  of  ac- 
tions, does  not  extend  to  torts  not  directly 
affecting  the  person,  but  includes  every  ac- 
tion the  substantial  c  "lily 
injury,  as  the  negligent  sale  of  deadly  \ 
for  a  harmless  drug  as  ti.  hich 
a  man  dies;  Norton  V.  Sewall,  106  ! 
8  Am.  Rep.  298. 

He  who  has  caused  the  damage  is  bound 
to  repair  it;  and  if  he  has  done  it  mali- 
ciously he  may  be  compelled  to  pay  tx 
the  actual  loss;  Fay  v.  Parker.  .">.".  N.  H. 
342,  L6  Am.  Rep.  270.  When  dam:  . 
by  accident  without  blame  to  any  one,  the 
loss  Is  borne  by  the  owner  of  the  thing  in- 
jured: as,  if  a  horse  run  away  with  his  rider, 
without  any  fault  of  the  latter,  and  injure 
the  property  of  another  person,  the  injury  is 
the  loss  of  the  owner  of  the  thing.  When 
the  damage  happens  by  the  act  of  God,  or 
inevitable  accident,  as  by  tempest,  earth- 
quake, or  other  natural  cause,  the  loss  must 
be  borne  by  the  owner.  See  Comyns,  Dig. ; 
Sedgwick;  Mayne  ;  Sutherland ;  Joyce ;  Hale: 
Field,  Damages;  1  Rutherf.  Inst  399;  Com- 
pensation; Damages;  Measure  of  Dam- 
ages. 

DAMAGE  CLEER.  The  tenth  part  in  the 
common  pleas,  and  the  twentieth  part  in  the 
king's  bench  and  exchequer  courts,  of  all 
damages  beyond  a  certain  sum.  which  was  t<> 
be  paid  the  protbonotary  or  chief  ollicer  of 
the  court  in  which  they  were  recovered  be- 
fore execution  could  be  taken  out  At  first 
it  was  a  gratuity,  and  of  uncertain  propor- 
tions. Abolished  by  stat  17  Car.  II.  c.  6. 
Cowell;  Tcrmes  de  la  Ley. 

DAMAGE  FEASANT  (French,  fa 
dommage,  doing  damage).  A  term  usually 
applied  to  the  injury  which  animals  b 
ing  to  one  person  do  upon  the  land  of  anoth- 
er, by  feeding  there,  treading  down  his  grass, 
corn,  or  other  production  of  the  earth.  3 
Bla.  Com.  6;  Co.  Litt.  142,  101;  Com.  Dig. 
Pleader  (3  M.  26). 

It  "is  the  strictest  distress,  for  the  thing 
distrained  must  be  taken  in  the  very  act ;" 
Lord  Holt  in  12  Mod.  658;  3  Bla.  Com.  6,  7. 
By  the  common  law,  a  distress  of  animals  <<r 
things  damage  feasant  is  allowed.  Gilb. 
Distr.  21  ;  Poll.  Torts  473,  478  It  wa 
allowed  by  the  ancient  customs  of  France. 
11  Toullier  402;  Merlin.  Reperf.  Fourriere; 
1  Fournel,  Abandon.    See  Animal. 

DAMAGED  GOODS.  Goods  subject  to  du- 
ties, which  have  received  some  injury  either 
in  the  voyage  home,  or  while  bonded  in  ware- 
house. 

DAMAGES.  The  indemnity  recoverable  by 
a  person  who  has  sustained  an  injury,  either 
in  his  person,  property,  or  relative  rights, 
through  the  act  or  default  of  another. 

The  sum  claimed  as  such  indemnity  by  a 
plaintiff  in  his  declaration. 


DAMAGES 


750 


DAMAGES 


The  injury  or  loss  for  which  compensation 
is  sought. 

Compensatory  damages.  Those  allowed  as 
a  recompense  for  the  injury  actually  re- 
ceived. They  cannot  include  an  allowance 
for  inconvenience  as  well  as  injuries ;  Jen- 
son  v.  R.  Co.,  86  Wis.  589,  57  N.  W.  359,  22 
L.  R.  A.  GSO. 

Consequential  damages.  Those  which, 
though  directly,  are  not  immediately,  con- 
sequential upon  the  act  or  default  complain- 
ed of. 

Double  or  Preble  damages.  See  Measure 
of  Damages. 

Exemplary  damages.  Those  allowed  for 
torts  committed  with  fraud,  actual  malice, 
or  deliberate  violence  or  oppression,  as  a 
punishment  to  the  defendant,  and  as  a  warn- 
ing to  other  wrong  doers.  Mayer  v.  Frobe, 
40  W.  Va.  246,  22  S.  E.  58 ;  Hale,  Dam.  200; 
Measure  of  Damages. 

General  damages.  Those  which  necessarily 
and  by  implication  of  law  result  from  the 
act  or  default  complained  of. 

They  are  such  as  the  jury  may  give  when 
the  judge  cannot  point  out  any  measure  by 
which  they  are  to  be  ascertained,  except  the 
opinion  and  judgment  of  a  reasonable  man. 
They  are  such  as  by  competent  evidence  are 
directly  traceable  to  a  failure  to  discharge  a 
contract,  obligation  or  duty  imposed  by  law. 
Bank  of  Commerce  v.  Goos,  39  Neb.  437,  58 
N.  W.  84,  23  L.  R.  A.  190. 

Liquidated  damages.     See  that  title. 

Nominal  damages.    See  that  title. 

Punitive  damages.  See  Measure  of  Dam- 
ages. 

S-pecial  damages.  Such  as  arise  directly, 
but  not  necessarily  or  by  implication  of  law, 
from  the  act  or  default  complained  of. 

These  are  either  superadded  to  general  damages, 
arising  from  an  act  injurious  in  itself,  as  when  some 
particular  loss  arises  from  the  uttering  of  slander- 
ous words,  actionable  in  themselves,  or  are  such  as 
arise  from  an  act  indifferent  and  not  actionable  in 
itself,  but  injurious  only  in  its  consequences,  as 
when  the  words  become  actionable  only  by  reason 
of  special  damage  ensuing. 

Unliquidated  damages.  See  Liquidated 
Damages. 

Vindictive  damages.  See  Measure  of 
Damages. 

In  modern  law,  the  term  damages  is  not  used  in  a 
legal  sense  to  include  the  costs  of  the  suit;  though 
it  was  formerly  so  used.    Co.  Litt.  267  a;   Dougl.  751. 

The  various  classes  of  damages  here  given  are 
those  commonly  found  in  the  text-books  and  in  the 
decisions  of  courts  of  common  law.  Other  terms 
are  of  occasional  use  (as  resulting,  to  denote  con- 
sequential damages),  but  are  easily  recognizable  as 
belonging  to  some  one  of  the  above  divisions.  The 
question  whether  damages  are  to  be  limited  to  an 
allowance  compensatory  merely  in  its  nature  and 
extent,  or  whether  they  may  be  assessed  as  a  pun- 
ishment upon  a  wrong-doer  in  certain  cases  for  the 
injury  inflicted  by  him  upon  the  plaintiff,  received 
much  attention  from  the  courts  and  was  very  fully 
and  vigorously  discussed  by  Greenleaf  and  Sedg- 
wick, the  latter  of  whom,  though  supporting  the 
doctrine  admitted  that  it  was  exceptional  and  anom- 
alous and  could  not  be  logically  supported;  Sedgw. 
Dam.  §  353.  He  attributes  the  origin  of  the  princi- 
ple to  the  rule  making  juries  the  judges  of  the  dam- 


ages ;  id.  §  354.  In  cases  of  aggravated  wrong  there 
were  large  verdicts  and  the  courts  were  powerless, 
although  the  early  cases  consisted  mainly  of  setting 
them  aside.  Originating  in  the  unrestrained  expres- 
sions of  judges  in  justifying  verdicts,  there  grew 
up  this  doctrine  of  exemplary  damages  characterized 
as  "a  sort  of  hybrid  between  a  display  of  ethical 
indignation,  and  the  imposition  of  a  criminal  fine." 
The  current  of  authorities  set  strongly  (in  numbers, 
at  least)  in  favor  of  allowing  punitive  damages; 
Day  v.  Woodworth,  13  How.  (U.  S.)  363,  14  L.  Ed. 
181;  and  that  rule  of  decision  has  prevailed  in  most 
of  the  states,  though  in  some  it  is  repudiated  en- 
tirely ;  Stilson  v.  Gibbs,  53  Mich.  280,  18  N.  W.  815  ; 
Hawes  v.  Knowles,  114  Mass.  518,  19  Am.  Rep.  383; 
Greeley,  S.  L.  &  P.  R.  Co.  v.  Yeager,  11  Colo.  345,  18 
Pac.  211;  Bixby  v.  Dunlap,  56  N.  H.  456,  22  Am. 
Rep.  475;  and  in  others  the  doctrine  is  also  de- 
nied but  exemplary  damages  were  permitted  on  the 
ground  that  they  were  compensatory  merely  for 
mental  suffering;  Quigley  v.  R.  Co.,  11  Nev.  350, 
21  Am.  Rep.  757  ;  Union  Pac.  R.  R.  Co.  v.  Hause,  1 
Wyo.  27.  This  rule  prevailed  In  West  Virginia ; 
Pegram  v.  Stortz,  31  W.  Va.  220,  6  S.  E.  4S5;  Beck 
v.  Thompson,  31  W.  Va.  459,  7  S.  E.  447,  13  Am.  St. 
Rep.  870;  but  has  been  over-ruled;  Mayer  v.  Frobe, 
40  W.  Va.  246,  22  S.  E.  58.  The  argument  against 
such  damages  was  based  on  the  objection  that  it 
admits  of  the  infliction  of  pecuniary  punishment  to 
an  almost  unlimited  extent  by  an  irresponsible  jury, 
a  view  which  is  theoretically  more  obnoxious  (sup- 
posing that  there  is  no  practical  difference)  than 
that  which  considers  damages  merely  as  a  compen- 
sation, of  the  just  amount  of  which  the  jury  may 
well  be  held  to  be  proper  judges.  It  also  seemed  to 
savor  somewhat  of  judicial  legislation  in  a  criminal 
department  to  extend  such  damages  beyond  those 
cases  where  an  injury  is  committed  to  the  feelings 
of  an  innocent  plaintiff.  See  2  Greenl.  Ev.  §  253  ; 
2  Sedgw.  Dam.  323  ;  1  Kent  630 ;  Grand  Trunk  R. 
R.  Co.  v.  Richardson,  91  U.  S.  465,  23  L.  Ed.  356; 
Fay  v.  Parker,  53  N.  H.  342,  16  Am.  Rep.  270,  where 
the  terms  exemplary,  vindictive  and  punitive  or 
punitory  are  considered  as  synonymous,  and  the 
cases  and  authorities  are  exhaustively  reviewed. 

Direct  is  here  used  in  opposition  to  remote,  and 
immediate  to  consequential. 

In  Pleading.  In  personal  and  mixed  ac- 
tions (but  not  in  penal  actions,  for  obvious 
reasons),  the  declaration  must  allege,  in  con- 
clusion, that  the  injury  is  to  the  damage  of 
the  plaintiff,  and  must  specify  the  amount 
of  damages;  Com.  Dig.  Pleader  (C.  84);  10 
Co.  116  6. 

In  personal  actions  there  is  a  distinction 
between  actions  that  sound  in  damages  and 
those  that  do  not;  but  in  either  of  these 
cases  it  is  equally  the  practice  to  lay  dam- 
ages. There  is,  however,  this  difference: 
that,  in  the  former  case,  damages  are  the 
main  object  of  the  suit,  and  are,  therefore, 
always  laid  high  enough  to  cover  the  whole 
demand;  but  in  the  latter,  the  liquidated 
debt,  or  the  chattel  demanded,  being  the 
main  object,  damages  are  claimed  in  respect 
of  the  detention  only  of  such  debt  or  chattel, 
and  are,  therefore,  usually  laid  at  a  small 
sum.  The  plaintiff  cannot  recover  greater 
damages  than  he  has  laid  in  the  conclusion 
of  his  declaration;  Com.  Dig.  Pleader  (C. 
84)  ;  10  Co.  117  a,  b;  Viner,  Abr.  Damages 
(R.);  1  Bulstr.  49;  2  W.  Bla.  1300;  Curtiss 
v.  Lawrence,  17  Johns.  (N.  Y.)  Ill;  Fish  v. 
Dodge,  4  Denio  (N.  Y.)  311,  47  Am.  Dec.  254; 
Fowlkes  v.  Webber,  8  Humphr.  (Tenn.)  530; 
New  Jersey  Flax  Cotton  Wool  Co.  v.  Mills, 
26  N.  J.  L.  60.    See  Ad  Damnum.    A  verdict 


DAMAGES 


751 


DAMAGES 


for  larger  damages  than  are  alleged  or 
proved  should  be  set  aside;  Texas  &  P.  R. 
Co.  v.  Morin,  66  Tex.  133,  18  S.  W.  345. 

In  real  actions  no  damages  are  to  lie  laid, 
because  in  these  the  demand  is  specially  for 
the  land  withheld,  and  damages  are  in  no 
degree  the  object  of  the  suit;  Steph.  PL  426  ; 
1  Chit.  PI.  307-400. 

General  damages  need  not  be  averred  in 
the  declaration;  nor  need  any  specific  proof 
of  damages  hi'  given  to  enable  the  plaintiff 
to  recover.  The  legal  presumption  of  injury 
in  cases  where  it  arises  is  sufficient  to  main- 
tain the  action.  Whether  special  damage  !»■ 
the  gist  of  the  action,  or  only  collateral 
thereto,  it  must  be  particularly  stated  in  the 
declaration,  as  the  plaintiff  will  not  other- 
wise be  permitted  to  go  into  evidence  of  it 
at  the  trial,  because  the  defendant  cannot 
also  be  prepared  to  answer  it.  See  2  Sedgw. 
Dam.  GOG ;  4  Q.  B.  403;  7  C.  &  P.  S04 ;  Agnew 
v.  Johnson,  22  Pa.  471,  G2  Am.  Dec.  303;  Pat- 
ten v.  Libbey,  32  Me.  370;  Town  of  Troy  v. 
R.  Co.,  23  N.  H.  83,  55  Am.  Dec.  177 ;  Brizsee 
v.  May  bee,  21  Wend.  (N.  Y.)  144;  Rice  v. 
Coolidge,  121  Mass.  303,  23  Am.  Rep.  270; 
Nunan  v.  San  Francisco,  38  Cal.  GS0;  Tom- 
linson  v.  Town  of  Derby,  43  Conn.  5G2 ;  Par- 
ker v.  Burgess,  64  Vt  442,  24  Atl.  743  ;  Oliver 
v.  Perkins,  02  Mich.  304,  52  N.  W.  609;  Rob- 
erts v.  Graham,  G  Wall.  (U.  S.)  578,  18  L. 
Ed.  701. 

In  Practice.  To  constitute  a  right  to  re- 
cover damages,  the  party  claiming  damages 
must  have  sustained  a  loss;  the  party 
against  whom  they  are  claimed  must  be 
chargeable  with  a  wrong;  the  loss  must  be 
the  natural  and  proximate  consequence  of 
the  wrong. 

There  is  no  right  to  damages,  properly  so 
called,  where  there  is  no  loss.  A  sum  in 
which  a  wrong-doer  is  mulcted  simply  as 
punishment  for  his  wrong,  and  irrespective 
of  any  loss  caused  thereby,  is  a  "fine."  or 
a  "penalty,"  rather  than  damages.  Dam- 
ages are  based  on  the  idea  of  a  loss  to  be 
compensated,  a  damage  to  be  made  good ; 
Yates  v.  Joyce,  11  Johns.  (N.  Y.)  136;  Smith 
v.  Sherwood,  2  Tex.  4G0;  Allison  v.  McCune, 
15  Ohio  72G,  45  Am.  Dec.  (;<>:>:  Webb  v.  Mfg. 
Co.,  3  Sumn.  102,  Fed.  Cas.  No.  17,322;  Lin- 
ton v.  Hurley,  104  Mass.  353;  1G  Q.  B.  D. 
G13.  See  Dayton  v.  Parke.  142  N.  V.  391,  ">7 
N.  E.  642;  Hale,  Dam.  3.  This  loss,  how- 
ever, need  not  always  be  distinct  ami  defi- 
nite, capable  of  exact  description  or  of  meas- 
urement in  dollars  and  cents.  A  suffii  lent 
loss  to  sustain  an  action  may  appear  from 
the  mere  nature  of  the  case  itself.  The  law 
in  many  cases  presumes  a  loss  where  a  wil- 
ful wrong  is  proved;  and  thus  also  damages 
are  awarded  for  injured  feelings,  bodily  pain, 
grief  of  mind,  injury  to  reputation,  and  for 
other  sufferings  which  it  would  be  Impossible 
to  make  subjects  of  exact  proof  and  computa- 
tion in  respect  to  the  amount  of  the  loss  sus- 
tained;   Tilden   v.   Metcalf,  2  Day    (Conn.) 


250;   Johnson  v.  Courts,  3  II.  &  .AMI.  Old. i 
510;   Ratllff  v.  Huntly,  27  \.  C.  545;   Wilkins 
v.  Gilmore,  2  Humphr.  (Tenn.)  140;   Hi 
v.  Bacon,  15  Conn.  267;    Jei  nings  v.  Maddox, 

s  B.   Monr.    iKy.i    432;    Hatt   v.  N( 
94  Mich.  Hit,  54  N.  W.  766;   White  v.  P. 
L12  X.  C.  ::-■:.  16  S.  B.  922;    I  &  W. 

R.  Co.  v.  Christian,  39  111.  App.  495;  H 
Bonner,  82  Tex.  ::".  17  s.  w.  605,  14  P.  P.  A. 
336,  _'7  Am.  St.  Pop.  850.  See  Mi.m  u 
feeing.  The  rule  is  not  that  a  loss  must  he 
proved  by  evidence,  hut  that  one  must  ap- 
pear, either  by  evidence  or  by  presumption, 
d  on  the  nature  of  the  case. 
There  Is  no  right  to  damages  wfiere  there 
is  no  wrong.  It  is  not  necessary  that  there 
should  be  a  tort,  strictly  so  called, — a  wilful 
wrong,  an  act  involving  moral  guilt  The 
wrong  may  be  either  a  wilful,  malicious  in- 
jury, as  in  the  case  of  assault  and  battery, 
libel,  and  the  like,  or  one  committed  through 
mere  motives  of  interest,  as  in  many 
of  conversion  of  goods,  trespasses  on  land, 
etc.;  or  it  may  consist  in  a  mere  neglect  to 
discharge  a  duty  with  suitable  skill  or  fidel- 
ity, as  where  a  surgeon  is  held  liable  for 
malpractice,  a  sheriff  for  the  escape  of  his 
prisoner,  or  a  carrier  for  the  neglect  to  de- 
liver goods;  or  a  simple  breach  of  contract, 
as  in  case  of  refusal  to  deliver  goods  sold, 
or  to  perform  services  under  an  agreement ; 
or  it  may  be  a  wrong  of  another  person  for 
whose  act  or  default  a  legal  liability  exists, 
as  where  a  master  is  held  liable  for  an  in- 
jury done  by  his  servant  or  apprentice,  or 
a  railroad  company  for  an  accident  result- 
ing from  the  negligence  of  its  engineer.  But 
there  must  be  something  which  the  law  rec- 
ognizes as  a  wrong,  some  breach  of  a  legal 
duty,  some  violation  of  a  legal  right,  some 
default  or  neglect,  some  failure  in  responsi- 
bility, sustained  by  the  party  claiming  dam- 
ages. For  the  sufferer  by  accident  or  by  the 
innocent  or  rightful  acts  of  another  cannot 
claim  indemnity  for  his  misfortune.  It  is 
called  damnum  absque  injuria, — a  loss  with- 
out a  wrong,  for  which  the  law  gives  no 
edy;  Pollock,  Torts  22,  175;  Bartholomew 
v.  Bentley,  15  Ohio  G50,  45  Am.  Dec.  596; 
11  M.  &  W.  Too;  Howland  v.  Vincent,  i<> 
Mete.  (Mass.)  371,  43  Am.  Dec.  41_'; 
v.  Buchanan,  51  N.  Y.  47<;.  10  Am.  Rep.  623; 
Marshall  v.  Welwood.  38  N.  J.  L.  339,  20 
Am.   Pep.  394;    Brown  v.  Collins,  53  N.   H. 

442,    16  Am.    Pep.   372;    Chase   v.    Silver 

62  Me.  17.".  16  Am.  Rep.  419;  Tn 
of  Village  of  lvlhi  v.  Younians,  50  Barb.  (N. 
Y.i  .".!<;;  Baltimore  &  P.  P.  Co.  v.  Reaney, 
42  Md.  110:  Shipley  v.  Fifty  Associates.  106 
Mass.  P.M.  8  Am.  Rep.  318;  L.  R.  3  H.  I,. 
::::<>:  Egan  v.  Hart.  4."»  Pa.  Aim.  13J 
South.  214;  Booth  v.  R.  Co.,  140  X.  Y.  267, 
35  N.  E.  592,  'J I  P.  P.  A.  105,  37  Am.  St.  Rep. 
552. 

See  Damnum   ABSQUE 'Injuria. 

The  obligation   violated  must  also  be  one 
owed  to  the  plaintiff.    The  neglect  of  a  duty, 


DAMAGES 


752 


DAMAGES 


which  the  plaintiff  had  no  legal  right  to 
enforce,  gives  no  claim  to  damages,  though 
perhaps  it  is  better  said,  gives  no  right  of 
action.  Thus  where  a  postmaster  was  re- 
quired by  law  to  advertise  in  the  newspaper 
in  his  city  having  the  largest  circulation,  and 
chose  another  newspaper,  it  was  merely  a 
breach  of  a  duty  he  owed  to  the  public  and 
not  to  the  owner  of  the  newspaper  having 
the  largest  circulation;  Strong  v.  Campbell, 
11  Barb.  (N.  Y.)    135. 

Whether  when  the  law  gives  judgment  on 
a  contract  to  pay  money — e.  g.  on  a  promis- 
sory note — this  is  to  be  regarded  as  enforc- 
ing performance  of  the  promise,  or  as  award- 
ing damages  for  the  breach  of  it,  is  a  ques- 
tion on  which  jurisconsults  have  differed. 
Regarded  in  the  latter  point  of  view,  the  de- 
fault of  payment  is  the  wrong  on  which  the 
award  of  damages  is  predicated. 

The  loss  must  be  the  natural  and  proxi- 
mate consequence  of  the  wrong ;  2  Greenl. 
Ev.  §  256;  2  Sedgw.  Dam.  362;  Field,  Dam. 
42;  Hale,  Dam.  4.  Smith  v.  Bolles,  132  U. 
S.  125,  10  Sup.  Ct.  39,  33  L.  Ed.  279.  Or,  as 
others  have  expressed  the  idea,  it  must  be 
the  "direct  and  necessary,"  or  "legal  and  nat- 
ural," consequence.  It  must  not  be  "remote" 
or  "consequential."  The  loss  must  be  the 
natural  consequence.  Every  man  is  expected 
—and  may  justly  be — to  foresee  the  usual 
and  natural  consequences  of  his  acts,  and  for 
these  he  may  justly  be  held  accountable ;  but 
not  for  consequences  that  could  not  have 
been  foreseen;  Dickinson  v.  Boyle,  17  Pick. 
(Mass.)  78,  28  Am.  Dec.  281;  Donnell  v. 
Jones,  13  Ala.  490,  48  Am.  Dec.  59;  Vedder  v. 
Hildreth,  2  Wis.  427 ;  Walker  &  Langford  v. 
Ellis  &  Moore,  1  Sneed  (Tenn.)  515 ;  Young 
v.  Tustin,  4  Blackf.  (Ind.)  277;  6  Q.  B.  928; 
Fritts  v.  R.  Co.,  62  Conn.  503,  26  Atl.  347; 
Swain  v.  Schieffelin,  134  N.  Y.  471,  31  N.  E. 
1025,  18  L.  R.  A.  385.  See  Malone  v.  R.  R., 
152  Pa.  390,  394,  25  Atl.  638;  Taylor  Mfg. 
Co.  v.  Hatcher  Mfg.  Co.,  39  Fed.  440,  3  L.  R. 
A.  587.  It  must  also  be  the  proximate  con- 
sequence. Vague  and  indefinite  results,  re- 
mote and  consequential,  and  thus  uncertain, 
are  not  embraced  in  the  compensation  given 
by  damages.  It  cannot  be  certainly  known 
that  they  are  attributable  to  the  wrong,  or 
whether  they  are  not  rather  connected  with 
other  causes ;  Hatchell  v.  Kimbrough,  49  N. 
C.  163;  1  Sm.  D.  Cas.  302.  See  Engelsdorf 
v.  Sire,  64  Hun  209,  18  N.  Y.  Supp.  907; 
Brooke  v.  Bank,  09  Hun  202,  23  N.  Y.  Supp. 
S02. 

In  cases  of  tort  the  rule  has  been  thus 
stated :  "The  question  is  not  what  cause 
was  nearest  in  time  or  place  to  the  catas- 
trophe. This  is  not  the  meaning  of  the 
maxim  causa  proximo  non  remota  spectatur. 
The  proximate  cause  is  the  efficient  cause, 
the  one  that  sets  the  other  causes  in  opera- 
tion. The  causes  that  are  merely  incidental, 
or  instruments  of  a  superior  or  controlling 
agency,  are  not  the  proximate  causes,  and 


the  responsible  ones,  though  they  may  be 
nearer  in  time  to  the  result.  It  is  only  when 
the  causes  are  independent  of  each  other  that 
the  nearest  is,  of  course,  to  be  charged  with 
the  disaster ;"  -Etna  Insurance  Co.  v.  Boon, 
95  U.  S.  117,  24  L.  Ed.  395.  See  Causa  Pbox- 
ima  Non  Remota  Spectatur. 

"The  true  inquiry  is,  whether  the  injury 
sustained  was  such  as,  according  to  com- 
mon experience  and  the  usual  course  of 
events,  might  reasonably  be  anticipated;" 
Derry  v.  Flitner,  118  Mass.  131.  See  L.  R. 
10  Q.  B.  Ill;  Pullman  Palace  Car  Co.  v. 
Barker,  4  Colo.  344,  34  Am.  Rep.  89;  Lake 
Erie  &  W.  R.  Co.  v.  Close,  5  Ind.  App.  444, 
32  N.  E.  588. 

The  foregoing  are  the  general  principles 
on  which  the  right  to  recover  damages  is 
based.  Many  qualifying  rules  have  been  es- 
tablished, of  which  the  following  are  among 
the  more  important  instances.  In  an  action 
for  damages  for  an  injury  caused  by  negli- 
gence, the  plaintiff  must  himself  appear  to 
have  been  free  from  fault;  for  if  his  own 
negligence  in  any  degree  contributed  directly 
to  produce  the  injury,  he  can  recover  noth- 
ing. The  law  will  not  attempt  to  apportion 
the  loss  according  to  the  different  degrees  of 
negligence  of  the  two  parties ;  1  C.  &  P.  181 ; 
Miller  v.  Trustees  of  Mariner's  Church,  7  Me. 
51,  20  Am.  Dec.  341;  Loker  v.  Damon,  17 
Pick.  (Mass.)  284;  Hay  v.  Cohoes  Co.,  3 
Barb.  (N.  Y.)  49;  Murphy  v.  Diamond,  3  La. 
Ann.  441;  Galbraith  v.  Fleming,  60  Mich. 
403,  27  N.  W.  581 ;  though  this  rule  has  in 
some  cases  been  relaxed  in  favor  of  the  plain- 
tiff ;  L.  R.  1  Ap.  Ca.  754 ;  e.  g.,  if  the  injury 
would  have  occurred  although  the  plaintiff 
had  been  free  from  negligence ;  8  C.  B.  N.  S. 
115 ;  Newhouse  v.  Miller,  35  Ind.  463 ;  Walsh 
v.  Transp.  Co.,  52  Mo.  434;  Lindsey  v.  Town 
of  Danville,  45  Vt.  72 ;  or  if  the  injury  is 
wilful ;  Cook  v.  R.  &  Bank.  Co.,  67  Ala.  533; 
Terre  Haute  &  I.  R.  Co.  v.  Graham,  95  Ind. 
286,  48  Am.  Rep.  719;  Lake  Shore  &  M.  S. 
R.  Co.  v.  Bodemer,  139  111.  596,  29  N.  E.  692, 
32  Am.  St.  Rep.  218.  See  Negligence.  There 
is  no  right  of  action  by  an  individual  for 
damages  sustained  from  a  public  nuisance, 
so  far  as  he  only  shares  the  common  injury 
inflicted  on  the  community;  5  Co.  72.  For 
any  special  loss  suffered  by  himself  alone, 
he  may  recover;  4  Maule  &  S.  101 ;  2  Bingh. 
263;  1  Bingh.  N.  C.  222 ;  2  id.  281 ;  Baxter 
v.  Turnpike  Co.,  22  Vt.  114,  52  Am.  Dec.  84; 
Proprietors  of  Quincy  Canal  v.  Newcomb,  7 
Mete.  (Mass.)  276,  39  Am.  Dec.  778;  Mayor, 
etc.,  of  Pittsburgh  v.  Scott,  1  Pa.  309;  O'Brien 
v.  R.  Co.,  17  Conn.  372 ;  but  in  so  far  as  the 
whole  neighborhood  suffer  together,  resort 
must  he  had  to  the  public  remedy;  7  Q.  B. 
339;  Proprietors  of  Quincy  Canal  v.  New- 
comb,  7  Mete.  (Mass.)  276,  39  Am.  Dec.  778; 
Barr  v.  Stevens,  1  Bibb  (Ky.)  293.  Judicial 
officers  are  not  liable  in  damages  for  errone- 
ous decisions.  See  Judge;  Last  Cleab 
Chance. 


DAMAGES 


753 


DAMAGES 


Where  the  wrong  committed  by  the  de- 
fendant amounted  to  a  felony,  the  English 
rule  was  that  the  private  remedy  by  action 
was  stayed  till  conviction  for  the  felony 
was  had.  This  was  in  order  to  stimulate 
the  exertions  of  private  persons  injured  by 
the  commission  of  crimes  to  bring  offenders 
to  justice.  This  rule  has,  however,  been 
changed  in  some  of  the  United  States.  Thus, 
in  New  York  it  is  enacted  that  when  the 
violation  of  a  right  admits  of  both  a  civil 
and  criminal  remedy,  one  is  not  merged  in 
the  other.  And  see  Boardman  v.  Gore,  15 
Mass.  33G;  Ocean  Ins.  Co.  v.  Fields,  2  Stor. 
59,  Fed.  Cas.  No.  10,400;  Turner's  Case, 
Ware  78,  Fed.  Cas.  No.  14,248.  A  criminal 
prosecution  and  conviction  for  an  assault 
and  battery  is  not  a  bar  to  the  recovery  of 
punitive  damages  in  a  civil  action  for  the 
same  offence ;  but  it  may  be  shown  in  miti- 
gation of  damages;  Rhodes  v.  Rodgers,  151 
Pa.  634,  24  Atl.  1044;  but  see  Roach  v.  Cald- 
beck,  04  Vt.  593,  24  Atl.  989.  When  a  serv- 
ant is  injured  through  the  negligence  of  a 
fellow-servant  employed  in  the  same  enter- 
prise or  avocation,  the  common  employer  is 
not  liable  for  damages.  The  servant,  in  en- 
gaging, takes  the  risk  of  injury  from  the  neg- 
ligence of  his  fellow-servants ;  McKinn.  Fel- 
low-Serv.  18 ;  Farwell  v.  R,  Corporation,  4 
Mete.  (Mass.)  49,  38  Am.  Dec.  339;  Hubgh 
v.  R.  Co.,  6  La.  Ann.  495 ;  Ryan  v.  R.  Co.,  23 
Pa.  384 ;  Coon  v.  R.  Co.,  5  N.  Y.  493;  Shields 
v.  Yonge,  15  Ga.  349,  GO  Am.  Dec.  09S ;  Iion- 
ner  v.  R.  Co.,  15  111.  550 ;  Cleveland,  C.  &  C. 
R.  Co.  v.  Keary,  3  Ohio  St.  201;  5  Exch.  343. 
But  this  rule  does  not  exonerate  the  master 
from  liability  for  negligence  of  a  servant  in 
a  different  employment.  See  Master  and 
Servant.  But  this  rule  has  been  altered  in 
some  states,  and  by  act  of  congress  in  cer- 
tain cases:  see  Employers'  Liability  Acts. 
.  By  the  common  law,  no  action  was  main- 
tainable to  recover  damages  for  the  death  of 
a  human  being;  1  Campb.  493;  Carey  v.  R. 
Co.,  1  Cush.  (Mass.)  475,  48  Am.  Dec.  010; 
Hendrick  v.  Walton,  09  Tex.  192,  0  S.  W/.  749. 
As  to  the  right  under  statutes,  see  Death. 

Excessive  or  inadequate  damages.  Even  in 
that  large  class  of  cases  in  which  there  is  no 
fixed  measure  of  damages,  but  they  are  left 
to  the  discretion  of  the  jury,  the  court  has 
a  certain  power  to  review  the  verdict,  and  to 
set  it  aside  if  the  damages  awarded  are 
grossly  excessive  or  unreasonably  Inadequate. 
The  rule  is,  however,  that  a  verdict  will  not 
be  set  aside  for  excessive  damages  unless 
the  amount  is  so  large  as  to  satisfy  the  court 
that  the  jury  have  been  misled  by  passion, 
prejudice,  ignorance,  or  partiality;  Field, 
Dam.  083;  CTapp  v.  R.  Co.,  19  Barb.  (N.  Y.) 
461;  Treanor  v.  Donahoe,  9  Cush.  (Mass.) 
228;  Kountz  v.  Brown,  16  B.  Monr.  (Ky.) 
577;  Nicholson  v.  R.  Co.,  22  Conn.  71.  56  Am. 
Dec.  390;  Bell  v.  Morrison.  27  Miss.  OS:  Lang 
v.  Hopkins,  10  Ga.  37 ;  Marshall  v.  Gunter, 
6  Rich.  (S.  C.)  419;  Payne  v.  Steamship  Co., 
Bouv.— 48 


1  Cal.  33;  George  v.  Law,  id.  303;  Farish  v. 
Reigle,  11  Grat.  (Va.)  097,  <;2  Am.  Dec.  600; 
Dwyer  v.  R.  Co.,  52  City  of  Delphi 

v.  Lowery,  74  Ind.  520,  39  Am.  Rep.  98;  Gale 
v.   R.   Co.,   70   N.   Y.    594  :  Coal   & 

Railroad  Co.  v.  Roddy,  85  Tei  S.  W. 

286.     But  this  power  is  very  sparingly 
and  cases  are  numerous  in  which  the  courts 
have  expr<  aselves  dis.satisiied  with 

the  verdict,  but  have  refused  to  Interfere,  on 
the  ground  that  the  case  did  not  come  within 
this  rule.  See  Potter  v.  Thompson,  22 
(N.  Y.)  87;  Woodson  v.  Scott.  20  Mo.  i:7_' : 
Sexton  v.  Brock,  15  Ark.  345;  Bamette  v. 
Hicks,  6  Tex.  352;  Spencer  v.  ftfcMastefs,  10 
111.  405;  Whipple  v.  Mfg.  Co.,  2  Sto.  661, 
Fed.  Cas.  No.  17,516;  Vreeland  v.  Berry,  21 
N.  J.  L.  183;  McDermott  v.  Ry.  Co.,  85  Wis. 
102,  55  X.  W.  179;  Slette  v.  Ry.  Co.,  53  Minn. 
341,  55  N.  W.  137. 

As  a  general  rule,  in  actions  of  tort  the 
court  will  not  grant  a  new  trial  on  the 
ground  of  the  smallness  of  damages ;  12 
Mod.  150;  2  Stra.  940;  24  E.  L.  &  Eq.  406. 
But  they  have  the  power  to  do  so  in  a  prop- 
er case ;  and  in  a  few  instances  in  which  the 
jury  have  given  no  redress  at  all,  when  some 
was  clearly  due,  the  verdict  has  been  set 
aside;  Richards  v.  Sandford,  2  E.  D.  Sin. 
(N.  Y.)  319;    4  Q.  B.  917. 

An  important  case  sustaining  this  view 
is  reported  in  5  Q.  B.  D.  78 :  there  two  ver- 
dicts of  £7,000  and  £16,000,  respectively,  were 
successively  set  aside  as  inadequate. 

In  the  cases  in  which  there  is  a  fixed  legal 
rule  regulating  the  measure  of  damages,  it 
must  be  stated  to  the  jury  by  the  presiding 
judge  upon  the  trial.  His  failure  to  state  it 
correctly  is  ground  of  exception;  and  if  the 
jury  disregard  the  instructions  of  the  court 
on  the  subject,  their  verdict  may  be  set  aside. 
In  so  far,  however,  as  the  verdict  is  an  hon- 
est determination  of  questions  of  fact  prop- 
erly within  their  province,  it  will  not.  in 
general,  be  disturbed.  Sedgw.  Dam.  004. 
See  Consequential  Damages;  Mi  astre  or 
Damages  ;    Damage. 

OAME.  A  woman  of  rank,  high  social 
position,  or  culture;  specifically,  in  Great 
Britain,  the  legal  title  of  the  wife  or  widow 
of  a  knight  or  baronet.    Cent.  Diet. 

DAMN  A  (Lat.  damnum).  Damages,  both 
inclusive  and  exclusive  of  costs. 

DAMNATUS.  In  Old  English  Law.  Con 
demned;  prohibited  by  law;  unlawful 
Damnatus  coitus,  an  unlawful  connection 
Black,  L.  Diet. 

DAMNI  INJURI/E  ACTIO  (Lat).  In  Civ- 
il Law.  An  action  for  the  damage  done  by 
one  who  intentionally  injured  the  beast  of 
another.    Calvinus,  Lex. 

DAMN0SA  H/EREDITAS.  A  name  given 
by  Lord  Kenyon  to  that  species  of  property 
of  a  bankrupt  which,  so  far  from  being  valu- 
able, would  be  a  charge  to  the  creditors :    for 


DAMNOSA  HiEREDITAS 


754 


DANEGELD 


example,   a   term  of  years   where   the  rent 
would  exceed  the  revenue. 

The  assignees  are  not  bound  to  take  such 
property;  but  they  must  make  their  elec- 
tion, and  having  once  entered  into  posses- 
sion they  cannot  afterwards  abandon  the 
property  ;   7  East  342 ;   3  Campb.  340. 

DAMNUM  (Lat).  That  which  is  taken 
away;  loss;  damage;  legal  hurt  or  harm. 
Anderson,  L.  Diet. 

DAMNUM  ABSQUE  INJURIA  (Lat.  injury 
without  wrong).  A  wrong  done  to  a  man  for 
which  the  law  provides  no  remedy.  Broom. 
Max.  1.     See  Damages. 

Injuria  is  here  to  be  taken  in  the  sense  of  legal 
injury;  and  where  no  malice  exists,  there  are  many 
cases  of  wrong  or  suffering  inflicted  upon  a  man  for 
which  the  law  gives  no  remedy  ;  2  Ld.  Raym.  595 ; 
11  M.  &  W.  755  ;  Lamb  v.  Stone,  11  Pick.  (Mass.)  527. 
Thus,  if  the  owner  of  property,  in  the  prudent  exer- 
cise of  his  own  right  of  dominion,  does  acts  which 
cause  loss  to  another,  it  is  damnum  absque  injuria; 
Gardner  v.  Heartt,  2  Barb.  (N.  Y.)  168;  Howland 
v.  Vincent,  10  Mete.  (Mass.)  371,  43  Am.  Dec.  442; 
Trout  v.  McDonald,  83  Pa.  144;  see  Pennsylvania 
Coal  Co.  v.  Sanderson,  113  Pa.  126,  6  Atl.  453,  57 
Am.  Rep.  445  ;  10  M.  &  W.  109.  A  railroad  company 
which  exercises  due  care  in  blasting  on  its  own 
land,  in  order  to  lay  its  tracks,  is  not  liable  for 
injury  to  adjoining  property  arising  merely  from 
the  incidental  jarring  ;  Booth  v.  R.  Co.,  140  N.  Y. 
267,  35  N.  E.  592,  24  L.  R.  A.  105,  37  Am.  St.  Rep. 
552.  See  Blasting.  The  location  and  operation  of 
a  railroad  in  a  street,  the  bed  of  which  does  not  be- 
long to  an  abutting  property  owner,  is,  as  to  him, 
damnum  absque  injuria;  otherwise  if  he  own  the 
bed  of  the  street;  Grand  Rapids  &  I.  R.  Co.  v. 
Heisel,  38  Mich.  62,  31  Am.  Rep.  306.  The  ringing 
of  bells,  sounding  of  whistles  and  other  noises,  and 
the  emission  of  smoke  by  railroads,  are  damnum 
absque  injuria;  Aldrich  v.  R.  Co.,  195  111.  456,  63 
N.   E.  155,  57  L.  R.  A.   237. 

So,  too,  acts  of  public  agents  within  the  scope  of 
their  authority,  if  they  cause  damage,  cause  simply 
damnum  absque  injuria  (q.  v.) ;  Sedgw.  Dam.  29, 
111 ;  Callender  v.  Marsh,  1  Pick.  (Mass.)  418 ; 
Bridge  over  River  Lehigh  v.  Nav.  Co.,  4  Rawle 
(Pa.)  9,  26  Am.  Dec.  Ill;  Graves  v.  Otis,  2  Hill 
(N  Y.)  466  ;  Hollister  v.  Union  Co.,  9  Conn.  436,  25 
Am.  Dec.  36;  Hatch  v.  R.  Co.,  25  Vt.  49;  Miller 
v.  New  York,  109  U.  S.  395,  3  Sup.  Ct.  228,  27  L.  Ed. 
971;  Hamilton  v.  R.  Co.,  119  U.  S.  284,  7  Sup.  Ct. 
206  30  L.  Ed.  393;  Hart  v.  Aqueduct  Corp.,  133 
Mass.  489  ;  2  B.  &  Aid,  646.  See  Ashby  v.  White,  1 
Smith,  Lead.  Cas.  244;  and  Weeks,  Doc.  of  Dam. 
Abs.   Inj. 

The  state,  in  locating  its  public  levees,  acts  in  the 
exercise  of  its  police  powers,  and  private  injury  re- 
sulting therefrom  is  damnum  absque  injuria;  Egan 
v.  Hart,  45  La.  Ann.  1358,  14  South.  244. 

See  Mental  Suffering. 

DAMNUM  FATALE.  In  Civil  Law.  Dam- 
ages caused  by  a  fortuitous  event  or  inevi- 
table accident ;  damages  arising  from  the  act 
of  God. 

Among  these  were  included  losses  by  ship- 
wreck, lightning,  or  other  casualty;  also 
losses  by  pirates,  or  by  vis  major,  by  fire, 
robbery,  and  burglary;  but  theft  was  not 
numbered  among  these  casualties.  In  gen- 
eral, bailees  are  not  liable  for  such  damages; 
Story,  Bailm.  471. 

DANEGELD.  A  tax  or  tribute  imposed  up- 
on the  English  when  the  Danes  got  a  footing 
in  their  island.     From  about  the  year  991 


the  Danegeld  was  levied  and  paid  to  the 
Danes  as  a  tribute.  In  its  later  form,  from 
1012,  it  was  a  tax  levied  to  pay  the  wages 
of  a  Danish  fleet  in  the  service  of  the  Eng- 
lish crown.  It  was  abolished  about  1051. 
It  was  levied  again  by  William  in  10S3-4, 
and  it  was  with  a  view  of  amending  its  as- 
sessment that  the  survey  of  the  kingdom 
called  Domesday  was  undertaken ;  2  Holdsw. 
Hist.  E.  L.  119.  A  detailed  history  of  the 
Danegeld  cannot  be  written;  Maitl.  Domes- 
day and  Beyond  3. 

DANE  LAGE,  or  DANE  LAW.  The  laws 
of  the  Danes  which  obtained  in  the  eastern 
counties  and  part  of  the  midland  counties 
of  England  in  the  eleventh  century.  1  Bla. 
Com.  65. 

DANGEROUS  WEAPON.  One  dangerous 
to  life.  Cosby  v.  Com.,  115  Ky.  221,  72  S. 
W.  10S9.  One  likely  to  produce  death.  State 
v.  Johns,  6  Pennewill  (Del.)  174,  65  Atl.  763; 
or  great  bodily  injury;  People  v.  Fuqua,  58 
Cal.  245.  This  must  often  depend  upon  the 
manner  of  using  it;  Hunt  v.  State,  6  Tex. 
App.  663 ;  and  the  question  should  go  to  the 
jury.  A  distinction  is  made  between  a  dan- 
gerous and  a  deadly  weapon ;  United  States 
v.  Small,  2  Curt.  241,  Fed.  Cas.  No.  16,314. 
It  is  said  to  be  anything  with  which  death 
can  be  easily  and  readily  produced,  with  a 
reference  to  the  manner  in  which  it  was  used 
and  the  part  of  the  body  upon  which  the 
blow  was  struck  with  it;  Acers  v.  U.  S.,  164 
U.  S.  388,  17  Sup.  Ct.  91,  41  L.  Ed.  481.  The 
following  have  been  held  to  be  deadly  weap- 
ons: A  chisel;  Com.  v.  Branham,  8  Bush 
(Ky.)  387;  a  heavy  iron  weight  or  other 
ponderous  instrument ;  State  v.  West,  51  N. 
C.  506;  Killer  v.  Com.,  124  Pa.  92,  16  Atl. 
495;  McReynolds  v.  State,  4  Tex.  App.  327; 
a  sledgehammer;  Philpot  v.  Com.,  86  Ky. 
595,  6  S.  W.  455 ;  a  heavy  pistol  used  as  a ' 
bludgeon ;  Prior  v.  State,  41  Ga.  155 ;  a  club ; 
State  v.  Phillips,  104  N.  C.  786,  10  S.  E.  463 ; 
a  piece  of  timber;  State  v.  Alfred,  44  La. 
Ann.  582,  10  South.  887;  a  pocket  knife; 
State  v.  Scott,  39  La.  Ann.  943,  3  South.  83 ; 
a  razor;  Scott  v.  State,  42  Tex.  Cr.  Pt.  607, 
62  S.  W.  419;  an  axe;  Dollarhide  v.  U.  S., 
Morris  (la.)  233,  39  Am.  Dec.  460;  State  v. 
Shields,  110  N.  C.  497,  14  S.  E.  779;  but 
where  its  size,  weight,  character  and  kind 
are  not  shown,  it  is  held  that  it  cannot  be 
so  regarded;  Melton  v.  State,  30  Tex.  App. 
273,  17  S.  W.  257;  Gladney  v.  State  (Tex.) 
12  S.  W.  868.  A  jacknife  may  be  a  danger- 
ous weapon  in  fact,  but  whether  it  was  such 
as  matter  of  law  was  not  decided;  Com.  v. 
O'Brien,  119  Mass.  342,  20  Am.  Rep.  325. 
A  heavy  oak  stick,  three  feet  long  and  an 
inch  thick,  is  a  dangerous  weapon  but  not  a 
"deadly"  weapon  in  the  sense  that  from  the 
use  of  it  alone  an  attack  would  be  as  matter 
of  law  an  aggravated  assault  under  a  Texas 
statute;  Pinson  v.  State,  23  Tex.  579.  See 
Arms  ;   Weapons.     And  to  the  same   effect, 


DANGEROUS  WEAPON 


7oZ 


DANGEROUS  WEAPON 


People  v.  Perales,  141  Cal.  581,  75  Pac.  170; 
Renon  v.  State,  56  Tex.  Cr.  R.  343,  120  S. 
W.  174;  Taylor  v.  State,  108  6a.  384,  34  S. 
E.  2;  Kelly  v.  State,  GS  Miss.  343,  8  South. 
745. 

In  one  way  it  may  be  true  that  sticks  or 
clubs    are    not    deadly    weapons.      Carrying 
them  does  not  import  any  hostile  intent,  nor, 
even  in  view  of  an  expected  affray,  a 
to  take  life.     But  when  a  fight  is  actually 
going  on,    they   may   become    weapons   of   a 
very  deadly   character;    Allen   v.  U.    S.,    157 
l.    S.   675,    15    Sup.    Ct   720,   39  L.    Ed.   854. 
When  its  size  and  the  manner  of  its  use  is 
shown,    it   may    be  left    to    the   jury    to   say 
whether  a  stick  or  club  or  piece  of  plank  is 
a    deadly    weapon   of    a    character    likely    to 
produce  death  or  great  bodily  harm;   State 
v.  Nueslein,  25  Mo.  Ill;  Allen  v.  State,  148 
Ala.   588,   42   South.   1006;    State  v.   Brown, 
67  la.  289,  25  N.  W.  248.     A  weapon  cannot 
be  said   as  a   matter  of  law  to  be   deadly, 
without  reference  to  the  manner  of  its  use; 
Crow  v.  State,  55  Tex.  Cr.  R.  200,  116  S.  W. 
52,  21  L.  R.  A.  (N.  S.)  497,  where  a  baseball 
bat  is  held  not  to  be  per  sc  a  deadly  weapon, 
though  it  has  been  said,  if  viciously  used,  it 
would   probably  be   so   considered ;   State   v. 
Brown,  67  la.   289,  25   N.   W.  248.     A  piece 
of  gas  pipe  4  feet  long  and  weighing  about 
4  pounds  was  held  a  deadly  weapon  per  se; 
State  v.  Drumm,  156  Mo.  216,  56  S.  W.  1086 ; 
as  was  a  hoe ;  Hamilton  v.  People,  113  111. 
34,  55  Am.  Rep.  390;  Krchnavy  v.  State,  43 
Neb.  337,  61  N.  W.  628;  a  pitchfork;  Evans 
v.  Com.,  12   S.  W.  767,  11  Ky.  L.   Rep.  551. 
a  stone  may  be;  State  v.  Wilson,  1G  Mo.  App. 
550;  North  Carolina  v.  Gosuell,  74  Fed.  7;;4. 
Whether  a    rock  used   for  a   missile  was   a 
deadly  weapon  was  held  to  be  for  the  jury ; 
State  v.  Shipley,  174  Mo.  512,  74  S.  W.  612; 
Tribble  v.  State,  145  Ala.  23,  40  South.  938; 
but  in  State  v.  Speaks,  94  N.  C.  805,  the  ques- 
tion was  said  to  be  one  of  law.    An  indict- 
ment for  assault  with  a  deadly  weapon,   to 
wit,  a  brick,  sufficiently  charges  the  use  of 
a  deadly  weapon;  State  v.  Sims,  80  Miss.  381, 
31  South.  907.    But  it  was  held  that  whether 
a  brickbat  is  a  deadly  weapon  is  for  the  ju- 
ry; State  v.  Harper,  69  Mo.  425.     Pushing  a 
pin  down  the  throat  of  an  infant  is  a  killing 
with   a   deadly   weapon ;   State   v.   Norwood, 
115  N.  C.  789,  20  S.  E.  712,  44  Am.  St.  Rep. 
498.    A  stocking  loaded  with  salt  and  plaster 
which  had  been  hardened  by  wetting,  used 
by  a  prisoner  in  assaulting  his  jailer  while 
attempting  to  escape,  may  be  found  by  the 
jury  to  be  a  deadly  weapon;  People  v.   Val- 
liere,   123   Cal.   576,   56   Pac.    433.      And  one 
may   be  found  guilty  of  an   assault  with   a 
deadly    weapon   who   has   placed  a   tiu    box 
filled   with   gunpowder   in  the  stove  of   the 
prosecuting  witness,  where  it  exploded ;  Peo- 
ple v.   Pape,   66  Cal.  366,   5   Pac.   621.     See 
Crow  v.  State,  55  Tex.  Cr.  R.  200,  116  S.  W. 
52,  21  L.  R.  A.   (N.  S.)  497. 


A  mere  trespass  on  land  does  not  justify 
an  assault  with  a  deadlj   wea]  on  ;  Moi 
cry  v.  Com.,  98  Va.  - 

v.  Lightsey,  43  S.  C.  114,  20  s.  i:.  975;  State 
v.  Zellers,  7  N.  J.  L.  220;  a  threw 

down  a  fence  and  drove  over  a  wheal 
"ii  account  of  snow  drifts;   State  v.    I 
9    Houst    (Del.)    417,  33  Atl.   181  ;  or 
one   tore   down   and   carried  away   a    f< 
State    v.    Matthews,    1  !s    Mo.    185,     19 
1085,    71    Am.    St    Kep.  :,!J4;   or  went  on   an- 
other's land  to  remove  crops;  Rauck  v.  State. 
110  Ind.  384,  11  N.  E.  450.    other  ., 
that  if  force  be  necessary,  a  deadly  wi 
may  he  used;  People  v.  Flanagan,  60  CaL  2, 
44  Am.  Rep.  52;  or  if  the  owner  has  reason 
able  ground  for  believing  that  he  is  in  dan- 
ger; People  v.  Dann,  53  Mich.  490,  19  N.  W. 
L59,  51  Am.  Rep.  151.    If  the  trespass 
sault   him,    he   may   be  justified   in   billing; 
Ayers  v.  State,  GO  Miss.  709;  he  may  oppose 
force   with   force;    Wenzel   v.    State,  -is  Tex. 
Cr.  R.  625,  90  S.  W.  28;  in  the  defence  of  his 
house;  People  v.  Coughlin,  67  Mich.  46 
N.  W.  72;  so  if  the  killing  is  believed,   in 
good  faith  and  upon  reasonable  grounds,  to 
be  necessary  in  order  to  repel  the  assailant 
or  prevent  his  forcible  entry:    State   v. 
cock,  40  Ohio   St.  333.     In  ejecting  a   tres- 
passer  or   preventing   a   trespass,   a   deadly 
weapon  is  not  justified  unless  the  owner  rea- 
sonably believes  that  he  is  in  danger  of  per- 
sonal  violence;    State   v.    Howell,    21    Mont 
165,    53  Pac.   314;    Sage   v.    Harpending.    49 
Barb.    (N.   Y.)    1GG.     In   Pryse   v.    State,   54 
Tex.  Cr.  R.  523,  113  S.  W.  938,  it  was  held 
that  a  person  may  use  all  the  force  necessary 
to  protect  his  property,  and  if  in  danger  of 
death  or  serious  injury  he  may  kill.    In  Big- 
gins v.  Minaghan,  78  Wis.  602,  47  N.  W.  941, 
11  L.  R.  A.  138,  23  Am.  St.  Rep.  428,  it  was 
held   that   effectual    means,    by    shooting   or 
otherwise,   was   justifiable   to   drive   away    a 
charivari  party  who  were  causing  fright  to 
the    owner's    family    and    endangering    their 
lives. 

DANGERS  OF  THE    RIVER.     In  a  bill  of 

lading  this  term  means  only  the  natural  ac- 
cidents incident  to  river  navigation,  and  does 
not  embrace  such  as  may  be  avoided  by  the 
exercise  of  that  skill,  judgment,  and  fore- 
sight which  are  demanded  from  persons  in  a 
particular  occupation.  Hill  v.  Sturgeon,  35 
Mo.  212,  8G  Am.  Dec.  149.  See  Hibernla  Ins. 
Co.  v.  Transp.  Co.,  17  Fed.  478. 

DANGERS  OF  THE  SEA.     See  Perils  of 

riti:   Ska. 

DAPIFER.  The  name  of  the  first  offi- 
cer of  state  in  France  until  1191,  after  which 
it  was  never  conferred.  The  name  came  to 
England  with  the  Normans,  but  the  office 
was  less  important,  and  there  was  a  staff 
of  dapifers.  After  the  accession  of  Richard 
1.  the  style  Seneschal  began  to  take  its  place. 
Harcourt,  The  Steward  and  Trial  of  Peers. 


DARREIN 


756 


DATE 


DARREIN  (Fr.  dernier).  Last.  Darrein 
continuance,  last  continuance.  See  Puis 
Darrein  Continuance;  Continuance. 

DARREIN  PRESENTMENT.  See  Assize 
of  Darrein  Presentment. 

DARREIN  SEISIN  (L.  Fr.  last  seisin).  A 
plea  which  lay  in  some  cases  for  the  tenant 
in  a  writ  of  right.  Hunt  v.  Hunt,  3  Mete. 
(Mass.)  184;  Jackson,  Real  Act.  285.  See  1 
Roscoe,  Real  Act.  206;  2  Prest.  Abstr.  345. 

DATE.  The  designation  or  indication  in 
an  instrument  of  writing  of  the  time  and 
place  when  and  where  it  was  made. 

In  the  Anglo-Saxon  land  charters  dates  were  given 
by  the  year  of  the  Indiction  (q.  v.).  Dating  by  the 
year  of  our  Lord  was  invented  in  532.  At  a  coun- 
cil in  816  it  was  adopted  for  the  acts  of  the  synod 
and  became  general  in  documents  from  that  date  ; 
2  Holdsw.  Hist.  E.  L.  19.  Some  early  charters 
were  not  dated ;  some  referred  to  the  regnal  year, 
or  a  church  festival,  or  a  remarkable  event ;  3 
id.  196. 

When  the  place  is  mentioned  in  the  date  of  a  deed, 
the  law  intends,  unless  the  contrary  appear,  that  it 
was  executed  at  the  place  of  the  date ;  Plowd.  7  6. 
The  word  is  derived  from  the  Latin  datum  (given)  ; 
because  when  the  instruments  were  in  Latin  the 
form  ran  datum,  etc.  (given  the day  of,  etc.). 

A  date  is  necessary  to  the  validity  of  a 
policy  of  insurance;  but  where  there  are 
separate  underwriters,  each  sets  down  the 
date  of  his  own  signing,  as  this  constitutes 
a  separate  contract ;  Marsh.  Ins.  336 ;  2  Pars. 
Marit.  Law  27.  Written  instruments  gener- 
ally take  effect  from  the  day  of  their  date, 
but  the  actual  date  of  execution  may  be 
shown,  though  different  from  that  which 
the  instrument  bears;  and  it  is  said  that 
the  date  is  not  of  the  essence  of  a  contract, 
but  is  essential  to  the  identity  of  the  writ- 
ing by  which  it  is  to  be  proved;  2  Greenl. 
Ev.  §§  12,  489,  n. ;  Cloyes  v.  Sweetser,  4  Cush. 
(Mass.)  403;  Jackson  v.  McKenny,  3  Wend. 
(N.  Y.)  233,  20  Am.  Dec.  690;  Gammon  v. 
Freeman,  31  Me.  243;  Bement  v.  Mfg.  Co., 
32  N.  J.  L.  513 ;  McSparran  v.  Neeley,  91  Pa. 
17;  17  E.  L.  &  Eq.  548.  See  Knisely  v. 
Sampson,  100  111.  573;  19  L.  J.  Q.  B.  435. 
And  if  the  written  date  is  an  impossible 
one,  the  time  of  delivery  must  be  shown; 
Shepp.  Touchst.  72;  Cruise,  Dig.  c.  2,  s.  61. 

An  indictment  charging  the  commission  of 
a  crime  on  an  impossible  date  (in  the  year 
18903)  was  held  fatally  defective;  Terrell 
v.  State,  165  Ind.  443,  75  N.  E.  884,  2  L.  R. 
A.  (N.  S.)  251,  112  Am.  St.  Rep.  244,  6  Ann. 
Cas.  851 ;  see  also  State  v.  Sexton,  10  N.  C. 
184,  14  Am.  Dec.  584;  State  v.  Litch,  33  Vt. 
67;  even  when  the  mistaken  date  appears 
to  have  been  merely  a  clerical  error;  Robles 
v.  State,  5  Tex.  App.  347 ;  and  one  charging 
the  commission  of  an  offense  upon  a  date  not 
yet  arrived  was  held  to  allege  no  offense  as 
having  been  already  committed;  Com.  v. 
Doyle,  110  Mass.  103.  Where  the  date  al- 
leged for  the  commission  of  a  statutory  of- 
fense occurred  before  the  statute  was  enact- 
ed, and  even  before  the  state  became  a  mem- 


ber of  the  Union,  it  was  held  an  impossibla 
date ;  State  v.  O'Donnell,  81  Me.  271,  17  AtL 
06.     See  Indictment;  Time. 

A  date  in  a  note  or  bill  is  required  only 
for  the  purpose  of  fixing  the  time  of  pay- 
ment. If  the  time  of  payment  is  otherwise 
indicated,  no  date  is  necessary ;  1  Ames, 
Bills  and  Notes  145,  citing  Brewster  v.  Mc- 
Cardell,  8  Wend.  (N.  Y.)  478;  Walker  v. 
Geisse,  4  Whart.  (Pa.)  252,  33  Am.  Dec.  60. 
When  a  note  payable  at  a  fixed  period  after 
date  has  no  date,  a  holder  may  fill  the  date 
with  the  day  of  issue;  ibid. 

It  is  usually  presumed  that  a  deed  was  de- 
livered on  the  day  of  its  date;  but  proof  of 
the  date  of  delivery  must  be  given  if  the  cir- 
cumstances were  such  that  collusion  might 
be  practised;  Steph.  Dig.  Ev.  138;  Raines 
v.  Walker,  77  Va.  92;  Harman  v.  Oberdorfer, 
33  Gratt.  (Va.)  497;  Saunders  v.  Blythe,  112 
Mo.  1,  20  S.  W.  319.  See  6  Bing.  296 ;  Ells- 
worth v.  R.  Co.,  34  N.  J.  L.  93 ;  Cutts  v.  Mfg. 
Co.,  18  Me.  190.  But  this  presumption  does 
not  hold  in  respect  to  deeds  in  fee,  unattest- 
ed and  unacknowledged ;  Genter  v.  Morrison, 
31  Barb.  (N.  Y.)  155.  Parol  evidence  is  ad- 
missible to  show  that  the  date  stated  in  the 
in  testimonium  clause  of  a  mortgage  deed  of 
personal  property  is  not  its  true  date ; 
Shaughnessey  v.  Lewis,  130  Mass.  355 ;  Or- 
cutt  v.  Moore,  134  Mass.  52,  45  Am.  Rep.  278. 
There  is  a  presumption  as  to  a  note  that  it 
was  delivered  on  the  day  of  its  date;  Cran- 
son  v.  Goss,  107  Mass.  439,  9  Am.  Rep.  45. 

Where  a  date  is  given,  both  as  a  day  of 
the  week  and  a  day  of  the  month,  and  the 
two  are  inconsistent,  the  day  of  the  month 
governs;  Minor  v.  Michie,  Walker  (Miss.) 
27. 

D  ATI  ON.  In  Civil  Law.  The  act  of  giv- 
ing something.  It  differs  from  donation, 
which  is  a  gift;  dation,  on  the  contrary,  is 
giving  something  without  any  liberality;  as, 
the  giving  of  an  office. 

DATION  EN  PAIEMENT.  In  Civil  Law. 
A  giving  by  the  debtor  and  receipt  by  the 
creditor  of  something  in  payment  of  a  debt 
instead  of  a  sum  of  money. 

It  is  somewhat  like  the  accord  and  satisfaction  of 
the  common  law.  16  Toullier,  n.  45 ;  Pothier,  Vente, 
n.  601.  Dation  en  paiement  resembles  in  some  re- 
spects the  contract  of  sale ;  dare  in  solutum  est 
quasi  vendere.  There  is,  however,  a  very  marked 
difference  between  a  sale  and  a  dation  en  paiement. 
First.  The  contract  of  sale  is  complete  by  the  mere 
agreement  of  the  parties ;  the  dation  en  paiement 
requires  a  delivery  of  the  thing  given ;  Donoven 
&  Daley  v.  Travers,  122  La.  458,  47  South.  769.  Sec- 
ond. When  the  debtor  pays  a  certain  sum  which  he 
supposed  he  was  owing,  and  he  discovers  he  did  not 
owe  so  much,  he  may  recover  back  the  excess ;  not 
so  when  property  other  than  money  has  been  given 
in  payment.  Third.  He  who  has  in  good  faith  sold  a 
thing  of  which  he  believed  himself  to  be  the  owner, 
is  not  precisely  required  to  transfer  the  property  of 
it  to  the  buyer ;  and  while  he  is  not  troubled  in 
the  possession  of  the  thing,  he  cannot  pretend  that 
the  seller  has  not  fulfilled  his  obligations.  On  the 
contrary,  the  dation  en  paiement  is  good  only  when 
the  debtor  transfers  to  the  creditor  the  property  in 
the  thing  which  he  has  agreed  to  take  in  payment; 


DATION  EN  PAIEMENT 


7.17 


DAY 


and  if  the  thing  thus  delivered  be  the  property  of 
another,  it  will  not  operate  as  a  payment.  Pothier, 
Vevte,  nn.  602,  603,  604.  See  1  Low.  C.  63;  Keough 
v.  J.   Meyers  &.  Co.,  43  La.  Ann.  952,  9  South.  913. 

DATIVE.  A  word  derived  from  the  Ro- 
man  Law,    signifying    "appointed    by    public 

authority."    Thus,  in  Scotland,  an  ex< 
dative  is  an  executor  appointed  by  a  court 
of  justice,  corresponding  to  an  English  ad- 

ininistrutor.     Mozley  &  W.  Diet. 

DAUGHTER.  A  female  child;  an  im- 
mediate female  descendant. 

DAUGHTER-IN-LAW.  The  wife  of  one's 
son. 

DAY.  The  space  of  time  which  elapses 
while  the  earth  makes  a  complete  revolution 
on  its  axis. 

A  portion  of  such  space  of  time  which, 
by  usage  or  law,  has  come  to  be  considered 
as  the  whole  for  some  particular  purpose. 

The  space  of  time  which  elapses  between 
two  successive  midnights.     2  Bla.  Com.  141. 

That  portion  of  such  space  of  time  during 
which  the  sun  is  shining. 

Generally,  in  legal  signification,  the  term  included 
the  time  elapsing  from  one  midnight  to  the  succeed- 
ing one;  2  Bla.  Com.  141;  Kane  v.  Commonwealth, 
S9  Pa.  522,  33  Am.  Rep.  7S7  ;  see  Helphenstine  v. 
Bank,  C5  Ind.  5S9,  32  Am.  Rep.  86  ;  but  it  is  also 
used  to  denote  those  hours  during  which  business  is 
ordinarily  transacted  (frequently  called  a  business 
day);  Hinton  v.  Locke,  5  Hill  (N.  Y.)  437;  as 
well  as  that  portion  of  time  during  which  the  sun 
is  above  the  horizon  (called,  sometimes,  a  solar 
day),  and,  in  addition,  that  part  of  the  morning  or 
evening  during  which  sufficient  of  its  light  is  above 
for  the  features  of  a  man  to  be  reasonably  discern- 
ed ;  Co.  3d  Inst.  63  ;  Trull  v.  Wilson,  9  .Mass.  104. 
Where  a  party  is  required  to  take  action  within 
a  given  number  of  days  in  order  to  secure  or  assert 
a  right,  the  day  is  to  consist  of  twenty-four  hours, 
that  is  the  popular  and  legal  sense  of  the  term ; 
Zimmerman  v.  Cowan,  107  111.  631,  47  Am.  Rep.  -'76; 
also  in  a  marine  insurance  policy  "for  30  days  after 
arrival"  means  thirty  successive  periods  of  twenty- 
four  hours  each,  "commencing  as  soon  as  moored 
at   anchor"  ;     [1904]  1  K.   B.   40. 

By  custom,  the  word  day  may  be  under- 
stood to  include  working-days  only;  3  Esp. 
IL'1 ;  Soreusen  v.  Keyser,  7yi  Fed.  1G3,  2  C.  C. 
A.  650.  In -a  similar  manner  only,  a  certain 
number  of  hours  less  than  the  number  during 
which  the  work  actually  continued  each  day. 
Hinton  v.  Locke,  5  Hill  (N.  Y.)  437. 

Sundays  and  other  public  holidays  falling  within 
the  number  of  days  specified  by  a  statute  for  the 
performance  of  an  act,  are  often  omitted  from  the 
computation,  as  not  being  judicial  days  ;  Abrahams 
v.  Comm.,  1  Rob.  (Va.)  G70 ;  Michie  v.  Michie's 
Adm'r,  17  Gratt.  (Va.)  109;  Neal  v.  Crew,  12  Ga. 
93;  National  Bank  of  the  Metropolis  v.  Williams, 
46  Mo.  17;  Caupfield  v.  Cook,  92  Mich.  020,  52  N. 
W.  1031;  McChesney  v.  People,  145  111.  614,  3i  N. 
E.  431;  Danielson  v.  Fuel  Co.,  55  Fed.  49;  Sorensen 
v.  Keyser,  52  Fed.  163,  2  C.  C.  A.  650.  But  sec  Miles 
v.  McDermott,  31  Cal.  271.  Where  the  last  day  of  the 
six  months  within  which  an  appeal  or  writ  of  error 
may  be  taken  to  review  in  the  circuit  court  of  ap- 
peals, the  judgment  or  decree  of  a  lower  court,  falls 
on  Sunday,  the  appeal  cannot  be  taken  or  the  writ 
sued  out  on  any  subsequent  day  ;  Johnson  v.  Mey- 
ers, 54  Fed.  417,  4  C.  C.  A.  399.  When  the  day  of  per- 
formance of  contracts,  other  than  instruments  upon 
which  days  of  grace  are  allowed,  falls  on  Sunday,  or 
other  public  holiday,  it  is  not  counted,  and  the  con- 


tract may  be  performed  on  Monday  ;  Salter  v.  Burt, 
:.  (N.  Y.)  205,  32  Am.  Dec.  530;  Stryker  v. 
Vanderbilt,  27  N.  J.  L.  68;  Johnson  v.  Merritt,  50 
Minn.  303,  52  N.  W.  S63.  See  Broome  v.  Wellington, 
1  Sandf.    (N.  Y.)  664. 

The  time  for  completing  commercial  contracts  is 
not  limited  to  banking  hours ;  Price  v.  Tucker,  5 
La.  Ann.  514. 

A  day  is  generally,  but  not  always,  re- 
garded in  law  as  a  point  of  time;  and  frac- 
tions will  not  he  recognized;  2  B.  &  Aid. 
586  ;    In  re  W'ehnan,  20  \  I  No. 

17,M»7;     Seward   v.    Hayden,   150   M 
SJ.  N.  B.  629,  5  L.   It.  A.  Ml,   L5  Am.   Si. 
L83;     State  v.    Winter  Park,  25   Fla.  371,   5 
South.  81S.    And  see  Brainard  v.  Bushnell, 
11    fuiin.   17;    3   Op.   Att.  _' :     Phelan 

v.  Douglass,  11  How.  Pr.  (N.  Y.)  193 ;  Duffy 
v.  Ogden,  64  i'a.  240.  See  FRACTION  of  a 
Day. 

It  is  said  that  there  is  no  general  rule  in 
regard  to  including  or  excluding  days  in  the 
computation  of  time  from  the  day  of  a  fact  or 
act  done,  but  that  it  depends  upon  the  reason 
of  the  thing  and  the  circumstances  of  the 
case;  9  Q.  B.  141;  6  M.  &  W.  55;  1'resbrey  v. 
Williams,  15  Mass.  193;  Weeks  v.  Hull,  19 
Conn.  37G,  50  Am.  Dec.  249;  Taylor  v.  Brown, 
5  Dak.  335,  40  X.  W.  525.  And  see,  also,  5  Co. 
la;  Dougl.  403;  4  New  &  M.  378;  Atkins  v. 
Ins.  Co.,  5  Mete.  (Mass.)  439,  39  Am.  Dec.  692  ; 
Wilcox  v.  Wood,  9  Wend.  (N.  Y.)  310;  Blake 
v.  Crowninshield,  9  N.  PI.  304 ;  Ewing  v. 
I>ailey,  4  Scam.  (111.)  420;  Marys  v.  Anderson, 
24  Pa.  272;  State  v.  Water  Co.,  5G  N.  J.  L. 
422,  28  Atl.  578.  Perhaps  the  most  general 
rule  is  to  exclude  the  first  day  and  include 
the  last;  Weld  v.  Barker,  153  Pa.  465,  26 
Atl.  239;  Miner  v.  Tilley,  54  Mo.  App.  027; 
Seward  v.  Hayden,  150  Mass.  159,  22  X.  E. 
029,  5  L.  R.  A.  S44,  15  Am.  St.  Rep.  18:i ;  12 
A.  &  E.  635 ;  Blackman  v.  Nearing,  43  Conn. 
56,  21  Am.  Rep.  634;  Warren  v.  Slade.  u:'. 
Mich.  1,  9  Am.  Rep.  70.  Such  is  the  rule  as 
to  negotiable  paper;  1  Dan.  Neg.  Instr.  496; 
Mark's  Exrs  v.  Russell,  40  Pa.  372.  See, 
generally,  -  Sharsw.  Bla.  Com.  141,  n. ;  and 
so  in  the  Uniform  Negotiable  Instruments 
Act,  •§  86. 

The  rule  now  generally  followed  seems  to  be  that 
not  only  in  mercantile  contracts,  but  also  in  wills 
and  other  instruments,  and  in  the  construction  of 
statutes,  the  day  of  the  date,  or  the  day  of  the  act 
from  which  a  future  time  is  to  be  ascertained,  is  to 
be  excluded  ;  Weeks  v.  Hull,  19  Conn.  376,  50  Am. 
Dec.  249  ;  People  v.  R.  Co.,  28  Barb.  (N.  1 
Hahn  v.  Dlerkes,  37  Mo.  571;  Faure  v.  Exp.  Co., 
23  Ind.  48. 

A  statutory  rule  for  computing  time  does 
not  apply  to  ascertain  the  day,  or  the  last 
day,  on  which  a  thing  may  be  done,  where 
such  day  is  expressed  °y  its  date;  North- 
western Guaranty  Loan  Co.  v.  Channel!.  53 
Minn.  269,  55  N.  W.  121. 

See   Time. 

DAY  BOOK.  An  account-book  in  which 
merchants  and  others  make  entries  of  their 
daily  transactions.  This  is  generally  a  book 
of  original  entries,  and,  as  such,  may  be  giv- 


DAY  BOOK 


758 


DAYS  OF  GRACE 


en  in  evidence  to  prove  the  sale  and  delivery 
of  merchandise  or  of  work  done. 

DAY  RULE.  In  English  Practice.  A  rule 
or  order  of  the  court  by  which  a  prisoner  on 
civil  process,  and  not  committed,  is  enabled, 
in  term-time,  to  go  out  of  the  prison  and  its 
rule  or  bounds.  Tidd.  Pr.  961.  Abolished  by 
5  &  6  Vict.  c.  22. 

DAYS  IN  BANK.  In  English  Practice. 
Days  of  appearance  in  the  court  of  common 
pleas,  usually  called  bancum.  They  are  at 
the  distance  of  about  a  week  from  each  oth- 
er, and  are  regulated  by  some  festival  of  the 
church. 

By  the  common  law,  the  defendant  is  allowed 
three  full  days  in  which  to  make  his  appearance  in 
court,  exclusive  of  the  day  of  appearance  or  return- 
day  named  in  the  writ ;  3  Bla.  Com.  278.  Upon  his 
appearance,  time  is  usually  granted  him  for  plead- 
ing; and  this  is  called  giving  him  day,  or,  as  it  is 
more  familiarly  expressed,  a  continuance.  3  Bla. 
Com.  316.  When  the  suit  is  ended  by  discontinu- 
ance or  by  judgment  for  the  defendant,  he  is  dis- 
charged from  further , attendance,  and  is  said  to  go 
thereof   sine   die,   without   day.     See   Continuance. 

DAYS  OF  GRACE.  Certain  days  allowed 
to  the  acceptor  of  a  bill  or  the  maker  of  a 
note  in  which  to  make  payment,  in  addition 
to  the  time  contracted  for  by  the  bill  or  note 
itself. 

They  are  so  called  because  formerly  they 
were  allowed  as  a  matter  of  favor ;  but  the 
custom  of  merchants  to  allow  such  days  of 
grace  having  grown  into  law,  and  been  sanc- 
tioned by  the  courts,  all  bills  of  exchange  are 
by  the  law  merchant  entitled  to  days  of  grace 
as  of  right.  The  statute  of  Anne  making 
promissory  notes  negotiable  confers  the  same 
right  on  those  instruments.  This  act  has 
been  generally  adopted  throughout  the  Unit- 
ed States;  and  the  days  of  grace  allowed 
are  three ;  Thomas  v.  Shoemaker,  6  W.  &  S. 
(Pa.)  179;    Chitty,  Bills;    Byles,  Bills. 

The  Uniform  Negotiable  Instruments  Act 
passed  in  most  of  the  states  abolishes  days 
of  grace,  but  three  days  of  grace  are  allowed 
on  sight  drafts  in  the  Rhode  Island  Act,  and 
on  notes,  acceptances,  and  sight  drafts  in  the 
North  Carolina  act;  the  Massachusetts  act 
was  amended  so  as  to  allow  days  of  grace  on 
sight  drafts;  also  by  the  English  Bills  of 
Exchange  Act  (1882);  Selover,  Negot.  Instr. 
253.  The  following  cases  are  retained  as 
having  at  least  historical  interest: 

Bank  checks  are  due  on  presentation  and 
are  not  entitled  to  days  of  grace ;  Wood 
River  Bank  v.  Bank,  36  Neb.  744,  55  N.  W. 
239. 

The  principle  deducible  from  all  the  au- 
thorities is,  that,  as  to  every  bill  not  payable 
on  demand,  the  day  on  which  payment  is  to 
be  made  to  prevent  dishonor  is  to  be  deter- 
mined by  adding  three  days  of  grace,  where 
the  bill  itself  does  not  otherwise  provide,  to 
the  time  of  payment  as  fixed  by  the  bill. 
This  principle  is  formulated  into  a  statutory 
I  iro vision   in   England   in   the   Bills   of   Ex- 


change Act,  1SS2,  45  &  46  Vict.  c.  61,  §  14; 
Bell  v.  Bank,  115  U.  S.  383,  6  Sup.  Ct.  105, 
29  L.  Ed.  409;  President,  etc.,  of  Bank  of 
Washington  v.  Triplett,  1  Pet.  (U.  S.)  31,  7 
L.  Ed.  37. 

Where  there  is  an  established  usage  of  the 
place  where  the  bill  is  payable  to  demand 
payment  on  the  fourth  or  other  day  instead 
of  the  third,  the  parties  to  it  will  be  bound 
by  such  usage ;  Renner  v.  President,  etc.,  of 
Bank,  9  Wheat.  (U.  S.)  5S2,  6  L.  Ed.  166; 
Price  v.  Earl  of  Torrington,  1  Smith,  Lead. 
Cas.  417.  When  the  last  day  of  grace  hap- 
pens on  Sunday  or  a  general  holiday,  as  the 
Fourth  of  July,  Christmas  day,  etc.,  the  bill 
is  due  on  the  day  previous,  and  must  be  pre- 
sented on  that  day  in  order  to  hold  the  draw- 
er and  indorsers;  Big.  Bills  &  N.  90;  Me- 
chanics' &  Farmers'  Bank  v.  Gibson,  7  Wend. 
(N.  Y.)  460;  Bank  of  North  America  v.  Pet- 
tit,  4  Dall.  (U.  S.)  127,  1  L.  Ed.  770;  Fisher 
v.  Evans,  5  Binn.  (Pa.)  541 ;  Brown  v.  Lusk, 
4  Yerg.  (Tenn.)  210;  McRae  v.  Kennon,  1 
Ala.  295,  34  Am.  Dec.  777 ;  Leavitt  v.  Simes, 
3  N.  H.  14 ;  contra,  First  Nat.  Bank  of  Hast- 
ings v.  McAllister,  33  Neb.  646,  50  N.  W. 
1040;  unless  changed  by  statute  as  in  some 
states.  Days  of  grac*.  are,  for  all  practical 
purposes,  a  part  of  the  time  the  bill  has  to 
run,  and  interest  is  charged  on  them ;  Presi- 
dent, etc.,  of  the  Bank  of  Utica  v.  Wager, 
2  Cow.  (N.  Y.)  712;  1  Dan.  Neg.  Instr.  489. 
According  to  the  usage  and  custom  of  mer- 
chants to  fix  the  liability  of  the  indorser  of 
negotiable  paper,  it  should  be  protested  on 
the  last  day  of  grace ;  Carey  Lombard  Lum- 
ber Co.  v.  Bank,  86  Tex.  299,  24  S.  W.  260. 

In  computing  the  days  of'  grace  allowed 
in  a  bond  for  the  payment  of  interest,  the 
day  when  the  interest  became  payable  will 
not  be  counted ;  Serrell  v.  Rothstein,  49  N.  J. 
Eq.  385,  24  Atl.  369.  A  bill  payable  in  thirty 
days  having  been  drawn  and  accepted  on 
February  11th,  of  a  leap  year,  the  last  day 
of  grace  falls  on  March  15th,  the  29th  of 
February  being  counted  as  a  distinct  day; 
Helphenstine  v.  Bank,  65  Ind.  582,  32  Am. 
Rep.  86. 

Our  courts  always  assume  that  the  same 
number  of  days  are  allowed  in  other  coun- 
tries ;  and  a  person  claiming  the  benefit  of 
a  foreign  law  or  usage  must  prove  it ;  Bowen 
v.  Newell,  13  N.  Y.  290,  64  Am.  Dec.  550; 
Ripley  v.  Greenleaf,  2  Vt.  129;  President, 
etc.,  of  the  Farmers'  Bank  of  Maryland  v. 
Duvall,  7  Gill  &  J.  (Md.)  78 ;  President,  etc., 
of  the  Bank  of  Alexandria  v.  Swann,  9  Pet. 
(U.  S.)  33,  9  L.  Ed.  40 ;  Wood  v.  Corl,  4  Mete. 
(Mass.)  203.  When  properly  proved,  the  law 
of  the  place  where  the  bill  or  note  is  payable 
prescribes  the  number  of  days  of  grace  and 
the  manner  of  calculating  them;  Dollfus  v. 
Frosch,  1  Denio  (N.  Y.)  367 ;  Story,  Pr.  Notes 
§§  216,  247.  The  tendency  to  adopt  as  laws 
local  usages  or  customs  has  been  materially 
checked ;   Bowen  v.  Newell,  8  N.  Y.  190. 


DAYS  OF  THE  WEEK 


750 


DE  APOSTATA  CAPIENDO 


DAYS  OF  THE  WEEK.  The  courts  will 
always  take  judicial  notice  of  the  days  of 
the  week;  for  example,  when  a  writ  of  in- 
quiry was  stated  in  the  pleadings  to  have 
been  executed  on  the  fifteenth  of  June,  and 
upon  an  examination  it  was  found  to  be 
Sunday,  the  proceeding  was  held  to  be  de- 
fective; Fortesc.  373;    Stra.  387. 

DAYSMAN.  An  arbitrator,  umpire,  or 
elected  Judge.     Cowell. 

DAY  WERE.  As  much  arable  land  as 
could  be  ploughed  in  one  day's  work.    Cowell. 

DE  ADMENSURATIONE  or  AMENSURA- 
CIONE,  in  Maitland  (2  Sel  Essays  in  Anglo- 
Ainer.  L.  H.  585).    Of  admeasurement. 

Used  of  the  writ  of  admeasurement  of  dower, 
which  lies  where  the  widow  has  had  more  dower 
assigned  to  her  than  she  is  entitled  to.  It  is  said  by- 
some  to  lie  where  either  an  infant  heir  or  his 
guardian  made  such  assignment  at  suit  of  the  in- 
fant heir  whose  rights  are  thus  prejudiced.  2  Bla. 
Com.  13C  ;  Fitzh.  N.  B.  348.  It  seems,  however,  that 
an  assignment  by  a  guardian  binds  the  infant  heir, 
and  that  after  such  assignment  the  heir  cannot  have 
his  writ  of  admeasurement;  Boyers  v.  Newbanks, 
2  Ind.  388;  Jones  v.  Brewer,  1  Pick.  (Mass.)  314; 
Young  v.   Tarbell,  37  Me.  509  ;    1  Washb.    R.   P.   226. 

Used  also  of  the  writ  of  admeasurement  of  pas- 
ture, which  lies  where  the  quantity  of  common  due 
each  one  of  several  having  rights  thereto,  has  not 
been  ascertained.  3  Bla.  Com.  38.  See  Admeasure- 
ment of  Dower. 

DE  /ETATE  PROBANDA  (Lat.  for  proving 
age).  A  writ  which  lay  to  summon  a  jury 
for  the  purpose  of  determining  the  age  of 
the  heir  of  a  tenant  in  vapite  who  claimed  his 
estate  as  being  of  full  age.    Fitzh.  N.  B.  257. 

DE  ALLOCATIONE  FACIENDA  (Lat.  for 
making  an  allowance).  A  writ  to  allow  the 
collectors  of  customs,  and  other  such  ollicers 
having  charge  of  the  king's  money,  for  sums 
disbursed  by  them. 

It  was  directed  to  the  treasurer  and  barons 
of  the  exchequer. 

DE  ALTO  ET  BASSO  (Of  high  and  low). 
A  phrase  anciently  used  to  denote  the  abso- 
lute submission  of  all  differences  to  arbitra- 
tion.    Cowell. 

DE  ANNUA  PENSIONE  (Lat.  of  annual 
pension).  A  writ  by  which  the  king,  having 
due  unto  him  an  annual  pension  from  any 
abbot  or  prior  for  any  of  his  chaplains  which 
he  will  name  who  is  not  provided  with  a 
competent  living,  demands  it  of  the  said  ab- 
bot or  prior  for  the  one  that  is  named  in  the 
writ.  Fitzh.  N.  B.  231;  Termes  de  la  Ley, 
Annua  Pensione. 

DE  ANNUO  REDITU  (Lat.  for  a  yearly 
rent).  A  writ  to  recover  an  annuity,  no  mat- 
ter how  payable.  2  Reeve,  Hist.  Eng.  Law 
258. 

DE  APOSTATA  CAPIENDO  (Lat  for  tak- 
ing an  apostate).  A  writ  directed  to  the  sher- 
iff for  the  taking  the  body  of  one  who.  hav- 
ing entered  into  and  professed  some  order  of 
religion,  leaves  his  order  and  departs  from 
his  house  and  wanders  in  the  country.    Fitzh. 


N.  B.  233;  Termes  de  la  Ley,  Apostata  Ca- 
piendo. 

DE  ARBITRATIONE  FACTA  (Latof arbi- 
tration bad).  A  writ  formerly  used  when  an 
action  was  brougbt  for  a  can-.-  which  had 
been  settled  by  arbitration.  Watson,  Ark 
256. 

DE  ASSISA  PROROGANDA  (Lat.  for  pro- 
roguing assize),     a  writ  to  put  off  an  a 

Issuing  to  the  justices  where  one  of  the  par- 
ties is  engaged  in  the  service  of  the  king. 

DE  ATTORNATO  RECIPIENDO  (Lat  fbl 
receiving  an  attorney).  A  writ  to  compel  the 
judges  to  receive  an  attorney  and  admit  bim 
Cor  the  party.  Fitzh.  N.  B.  L56  6.  S 
times  de  (itlurnato  fotiendoj  see  Maitland, 
•J  Sel.  Essays  in  Anglo-Amer.  L.  II.  ;"»'>. 

DE    AVERIIS    CAPTIS    IN    WITHERNAM 

(Lat.  for  cattle  taken  in  withernam).  A  writ 
which  lies  to  take  other  cattle  of  the  de- 
fendant where  he  has  taken  and  carried 
away  cattle  of  the  plaintiff  out  of  the  coun- 
try, so  that  they  cannot  be  reached  by  re- 
plevin.    Termes  de  la  Ley;   3  Bla.  Com.  149. 

DE  AVERIIS  REPLEGIANDIS  (Lat).  A 
writ  to  replevy  beasts.    3  Bla.  Com.  149. 

DE  AVERIIS  RETORNANDIS  (Lat.  for 
returning  cattle).  Used  of  the  pledges  in  the 
old  action  of  replevin.  2  Reeve,  Hist.  Eng. 
Law  177. 

DE  BENE  ESSE  (Lat.  formally;  condition- 
ally; provisionally).  A  technical  phrase  ap- 
plied to  certain  acts  deemed  for  the  time  to 
be  well  done,  or  until  an  exception  or  other 
avoidance.  It  is  equivalent  to  provisionally, 
with  which  meaning  the  phrase  is  commonly 
employed.  For  example,  a  declaration  is  fil- 
ed or  delivered,  special  bail  is  put  in,  a  wit- 
ness is  examined,  etc.,  de  bene  esse,  or  pro- 
visionally ;  3  Bla.  Com.  3S3. 

The  examination  of  a  witness  de  bene  esse 
takes  place  where  there  is  danger  of  losing 
the  testimony  of  an  important  witness  from 
death  by  reason  of  age  or  dangerous  Illness, 
or  where  he  is  the  only  witness  to  an  im- 
portant fact;  Lingan  v.  Henderson,  l  Bland, 
Ch.  (Md.)  238;  Ails  v.  SuMit.  3  Bibb  (Ky.) 
201;  Clark  v.  Dibble,  16  Wend.  (N.  Y.i  601; 
1.".  Yes.  261;  .May's  Heirs  v.  May's  Adin'r.  28 
Ala.  111.  In  such  case,  if  the  witness  be 
alive  at  the  time  of  trial,  his  examination  is 
not  to  be  used;  2  Dan.  Ch.  Pr.  1111.  See 
Haynes,  Eq.  183;    Mitt  Eq.  PL  52,  1  19. 

To  declare  de  hou  <  sa<  is  p>  declare  in  a 
bailable  action  subjeel  to  the  contingency 
of  bail  being  put  in;  and  in  such  case  the 
declaration  docs  not  become  absolute  till  this 
is  d-iie;    Gran.  Pr.  191. 

When  a  judge  has  a  doubt  as  to  the  pro- 
priety  of  finding   a    verdict,    he    may   . 
the  jury   to    hud  one   de    tunc  cs.se;    which 
verdict,  if  the  court  shall  afterwards  be  of 
opinion    that  it  ought   to   have   been  found, 


DE  BENE  ESSE 


760 


DE  CARTIS  REDDENDIS 


shall  stand.    Bac.  Abr.  Verdict  (A).     See,  al- 
so, Blair  v.  Weaver,  11  S.  &  R.  (Pa.)  84. 

DE  BIEN  ET  DE  MAL.  See  De  Bono  et 
Malo. 

DE  BIENS  LE  MORT  (Fr.).  Of  the  goods 
of  the  deceased.     Dyer  32. 

DE  BONIS  ASPORTATIS  (Lat.  for  goods 
carried  away).  The  name  of  the  action  for 
trespass  to  personal  property  is  trespass  de 
bonis  asportatis.  Bull.  N.  P.  S36;  1  Tidd, 
IT.  5. 

DE  BONIS  NON.  See  Executors  and  Ad- 
ministrators. 

DE  BONIS  PROPRIIS  (Lat  of  his  own 
goods).  A  judgment  against  an  executor  or 
administrator  which  is  to  be  satisfied  from 
his  own  property. 

When  an  executor  or  administrator  has 
been  guilty  of  a  devastavit,  he  is  responsible 
for  the  loss  which  the  estate  has  sustained 
de  bonis  propriis.  He  may  also  subject  him- 
self to  the  payment  of  a  debt  of  the  deceased 
de  bonis  propriis  by  his  false  plea  when  sued 
in  a  representative  capacity;  as,  if  he  plead 
plene  administravit  and  it  be  found  against 
him,  or  a  release  to  himself  when  false.  In 
this  latter  case  the  judgment  is  de  bonis  tes- 
ta tori  s  si,  et  si  non,  de  bonis  propriis.  1 
Wms.  Saund.  336  6,  n.  10 ;  Bacon,  Abr.  Exec- 
utor (B,  3). 

DE  BONIS  TESTATORIS  (Lat.  of  the 
goods  of  the  testator).  A  judgment  rendered 
against  an  executor  which  is  to  be  satisfied 
out  of  the  goods  or  property  of  the  testator ; 
distinguished  from  a  judgment  de  bonis  pro- 
priis. 

DE  BONIS  TESTATORIS  AC  SI  (Lat. 
from  the  goods  of  the  testator,  if  he  has  any, 
and,  if  not,  from  those  of  the  executor).  A 
judgment  rendered  where  an  executor  falsely 
pleads  any  matter  as  a  release,  or,  generally, 
in  any  case  where  he  is  to  be  charged  in  case 
his  testators  estate  is  insufiicient.  1  Wms. 
Saund.  306  b;  Bacon,  Abr.  Executor  (B,  3) ; 
2  Archb.  Pr.  148. 

DE  BONO  ET  MALO  (Lat.  for  good  or  ill). 
A  writ  which  apparently  allowed  a  person 
to  be  delivered  from  gaol  if  he  were  willing 
to  put  himself  upon  a  jury.  The  French 
phrase  de  bien  et  de  mat  has  the  same  mean- 
ing. 

A  special  writ  of  gaol  delivery,  one  being 
issued  for  each  prisoner:  now  superseded  by 
the  general  commission  of  gaol  delivery.  4 
Bla.  Com.  270. 


DE  CALCETO  REPARANDO  (Lat.).  A 
writ  for  repairing  a  highway,  directed  to  the 
sheriff,  commanding  him  to  distrain  the  in- 
habitants of  a  place  to  repair  the  highway. 
Reg.  Orig.  154;    Blount. 

DE  CARTIS  REDDENDIS  (Lat.  for  restor- 
ing charters).    A  writ  to  secure  the  delivery1 


of  charters;    a  writ  of  detinue.     Reg.  Orig. 
159  b. 

DE  CATALLIS  REDDENDIS  (Lat.  for  re- 
storing chattels).  A  writ  to  secure  the  re- 
turn specifically  of  chattels  detained  from 
the  owner.     Cowell. 

DE  CAUTIONE  ADMITTENDA  (Lat.  for 
admitting  bail).  A  writ  directed  to  a  bishop 
who  refused  to  allow  a  prisoner  to  go  at 
large  on  giving  sufficient  bail,  requiring  him 
to  admit  him  to  bail.  Fitzh.  N.  B.  63-C.  It 
seems  to  have  been  applicable  only  to  secure 
the  release  of  a  person  who  had  been  taken 
on  a  writ  of  de  excommunicato  capiendo  (q. 
v.)  and  who  was  willing  to  purge  himself  of 
contumacy. 

DE  CERTIFICANDO.  A  writ  requiring  a 
thing  to  be  certified.  A  kind  of  certiorari. 
Reg.  Orig.  152. 

DE  COMMUNI  DIVIDENDO.  In  Civil 
Law.  A  writ  of  partition  of  common  prop- 
erty.    See  Communi  Dividendo. 

DE  C0MPUT0.  Writ  of  account.  A  writ 
commanding  a  defendant  to  render  a  reason- 
able account  to  the  plaintiff,  or  show  cause 
to  the  contrary.  The  foundation  of  the  mod- 
ern action  of  account.  Blount;  Registr.  Br. 
135. 

DE  CONTUMACE  CAPIENDO.  A  writ 
issuing  from  the  English  court  of  chancery 
for  the  arrest  of  a  defendant  who  is  in  con- 
tempt of  the  ecclesiastical  court.  1  N.  &  P. 
685;  5  Dowl.  213,  646;  5  Q.  B.  335. 

DE  CURIA  CLAUDENDA  (Lat.  of  enclos- 
ing a  court).  An  obsolete  writ,  to  require  a 
defendant  to  fence  in  his  court  or  land  about 
his  house,  where  it  was  left  open  to  the  in- 
jury of  his  neighbor's  freehold.  1  Crabb, 
R.  P.  314 ;  Rust  v.  Low,  6  Mass.  90. 

DE  CURSU.     See  Cursitor. 

DE  D0M0  REPARANDA  (Lat).  The 
name  of  an  ancient  common-law  writ,  by 
which  one  tenant  in  common  might  compel 
his  co-tenant  to  concur  in  the  expense  of  re- 
pairing the  property  held  in  common.  8  B. 
&  C.  269;  1  Thomas,  Co.  Litt.  216,  note  17, 
and  p.  787. 

DE  D0NIS,  THE  STATUTE  (more  fully, 
De  Donis  Conditionalibus;  concerning  condi- 
tional gifts).  The  statute  of  Westminster 
the  Second.     13  Edw.  1.  c.  1. 

The  object  of  the  statute  was  to  prevent 
the  alienation  of  estates  by  those  who  held 
only  a  partial  interest  in  the  estate  in  such 
a  manner  as  to  defeat  the  estate  of  those 
who  were  to  take  subsequently.  This  was 
effected  by  providing  that,  in  grants  to  a 
man  and  the  heirs  of  his  body  or  the  heirs 
male  of  his  body,  the  will  of  the  donor 
should  be  observed  according  to  the  form 
expressed  in  the  deed  of  gift  (per  form  am 
doni);  that  the  tenements  so  given  sbould 
go,  after  the  grantee's  death,  to  his  issue  (or 


DE  DONIS,  THE  STATUTE 


761 


DE  FACTO 


Issue  male),  if  there  were  any,  and  if  none, 
should  revert  to  the  donor.  This  statute  was 
the  origin  of  the  estate  in  fee  tail,  or  estate 
tail,  and  by  introducing  perpetuities,  it  built 
up  great  estates  and  strengthened  the  power 
of  the  barons.  See  Bac.  Abr.  Estates  Tail; 
1  Cruise,  Dig.  70;  1  Washb.  R.  P.  271.  See 
imoNAL  Feb  Taix,. 

de  DOTE  assignanda  (Lafc  Cor  assign- 
ing dower).  A  writ  commanding  the  icing's 
eseheator  to  assign  dower  to  the  widow  of  a 
tenant  in  capite.     Fitzh.  N.  I'..  263,  ft 

DE  DOTE  UNDE  NIHIL  HABET  (Lat.  of 
dower  in  that  whereof  she  has  none).  A 
writ  of  dower  which  lay  for  a  widow  where 
no  part  of  her  dower  had  I  icon  assigned  to  a 
widow.  It  is  now  much  disused;  but  a  form 
closely  resembling  it  is  still'  used  in  the 
United  States.  4  Kent  63 ;  Stearns,  Real 
Act.  302 ;  1  Washb.  R.  P.  230. 

DE  EJECTIONE  CUSTODI/E.  A  writ 
which  lay  for  a  guardian  who  had  been  forci- 
bly ejected  from  his  wardship.  Reg.  Orig. 
162;  Black,  L.  Diet. 

DE  EJECTIONE  FIRM/E.  A  writ  which 
lay  at  the  suit  of  the  tenant  for  years 
against  the  lessor,  reversioner,  remainder- 
man, or  stranger  who  had  himself  deprived 
the  tenant  of  the  occupation  of  the  land 
during  his  term.  3  Bla.  Com.  109.  Original- 
ly lying  to  recover  damages  only,  it  came  to 
be  used  to  recover  the  rest  of  the  term,  and 
then  generally  the  possession  of  lands.  In- 
volving, in  the  question  of  who  should  have 
possession,  the  further  question  of  who  had 
the  title,  it  gave  rise  to  the  modern  action 
of  ejectment.  Brooke,  Abr. ;  Adams,  Ejectm. ; 
3  Bla.  Com.  199  et  seq. 

DE  ESTOVERIIS  HABENDIS  (Lat.  to  ob- 
tain estovers).  A  writ  which  lay  for  a  wo- 
man divorced  a  mensa  et  thoro  to  recover 
her  alimony  or  estovers.     1   Bla.  Com.  441. 

DE  EXCOMMUNICATO  CAPIENDO  (Lat. 
for  taking  one  who  is  excommunicated).  A 
writ  commanding  the  sheriff  to  arrest  one 
who  was  excommunicated,  and  imprison  him 
till  he  should  become  reconciled  to  the 
church.     3  Bla.  Com.  102. 

DE     EXCOMMUNICATO     DELIBERANDO 

(Lat.  for  freeing  one  excommunicated).  A 
writ  to  deliver  an  excommunicated  person, 
who  has  made  satisfaction  to  the  church, 
from  prison.     3  Bla.  Com.  102. 

DE  EX0NERATI0NE  SECT/E.  A  writ 
to  free  the  king's  ward  from  suit  in  any 
court  lower  than  the  court  of  common  pleas 
during  the  time  of  such  wardship. 

DE  FACTO.  Actually;  in  fact;  in  deed. 
A  term  used  to  denote  a  thing  actually  done. 

An  officer  de  facto  is  one  who  performs 
the  duties  of  an  office  with  apparent  right, 
and  under   claim  and  color  of  an  appoint- 


ment,  but    without   being  actually    qualified 
in  law  so  to  act.     Brown  v.  Lunt,  .".7  Mo.  423. 

One  who  has  the  reputation  of  being  the 
officer  he  assumes  to   be,   and  yet   is  not  a 
good   officer   in   point   of  law.     6 
where  Lord   Ellenborougb   and  a  full  court 
of  K.  B.  adopted  this  definition  of  Lord  Holt 
in  1   Raym.  658,  which  it  is  said  " 
been  questioned  since  in  England,"  per  But- 
ler, C.  J.,  in  the  leading  case  of  State  v. 
roll,  38  Conn.  449,  9  Am.  Rep.  409,  where  the 
common-law   learning  on  the  subject   i 
lected. 

Where  there   is  an   office  to   be   filled,   and 
ling  under  color  of  authority  fills  the 
office  and   discharges   its   duties,   Ins   actions 
are  those  of  an  officer  dc  facto,  and  are  bind- 
ing on  the  public;  McDowell  v.  D.  S.,  159  U. 
.    16  Sup.  Ct.  Ill,  40  L.  Ed.  271, 

An  officer  in  the  actual  exercise  of  execu- 
tive power  would  be  an  officer  de  facto,  and 
as  such  distinguished  from  one  who,  being 
legally  entitled  to  such  power,  is  deprived 
of  it, — such  a  one  being  an  officer  de  jure 
only.  An  officer  holding  without  strict 
authority;  2  Kent  295. 

An  officer  dc  facto  is  frequently  consider- 
ed an  officer  dc  jure,  and  legal  valid. 
lowed  his  official  acts;  State  v.  Anderson,  1 
X.  J.  L.  31S,  1  Am.  Dec.  207 ;  Com.  v.  Fowler, 
it)  Mass.  290;  Layer  v.  McGlachlin,  28  Wis. 
3G4;  Conover  v.  Devlin,  24  Barb.  (N.  Y.) 
5S7;  Whiting  v.  City  of  Ellsworth.  85  Me. 
301,  27  Atl.  177;  Petition  of  Town  of  Ports- 
mouth, 19  N.  H.  115;  Burton  v.  Patton,  47 
N.  C.  124,  62  Am.  Dec.  194;  Gregg  Tp.  v. 
Jamison,  55  Pa.  40S;  Kimball  v.  Alcorn,  45 
Miss.  151;  Hussey  v.  Smith,  99  U.  S.  20,  25 
L.  Ed.  B14;  Teople  v.  Weber,  8G  111.  283; 
State  v.  Carroll,  38  Conn.  449,  9  Am.  Rep. 
409;  State  v.  Davis,  111  N.  C.  729,  16  S.  E. 
540 ;  State  v.  Lee,  35  S.  C.  192,  14  S.  E.  395 ; 
Zabel  v.  Harshman,  68  Mich.  27.".,  42  X.  W. 
44;  7  L.  R.  II.  L.  891.  But  this  is  so  only 
so  far  as  the  rights  of  the  public  and  third 
persons  are  concerned.  In  order  to  sue  or 
defend  in  his  own  right  as  a  public  officer, 
he  must  be  so  dc  jure;  Teople  v.  Weber,  89 
111.  347.  An  officer  de  facto  incurs  no  liabil- 
ity by  his  mere  omission  to  act;  Olmstead  v. 
Dennis,  77  X.  Y.  MTS;  Snyder  v.  S 
How.  Pr.  (X.  Y.I  404;  but  see  Thayer  v. 
Printing  Co.,  108  Mass.  523;  Providence 
Steam-Engine  Co.  v.  Hubbard.  103  V.  s.  192, 
25  L.  Ed.  786. 

An  officer  dc  facto  must  be  submitted  to  as 
such  until  displaced  by  a  regular  direct  pro- 
ceeding for  that  pui  I  parte  Moore, 
62  Ala.  471;  4  Last  '■'<-!  ;  Buncombe  Turnpike 
Co.  v.  M.i 'arson,  PS  X.  C.  306;  he  is  a  legal 
officer  until  ousted;  Board  of  Auditors  of 
Wayne  County  v.  Benoit,  20  Mich.  170,  4 
Am.  Pep. 

An  officer  acting  under  an  unconstitution- 
al law.  acts  by  color  of  title,  and  is  an  offi- 
cer de  facto;  Com.  v.  McCombs,  56  Pa.  436; 


DE  FACTO 


762 


DE  FACTO 


Watson  v.  McGrath,  111  La.  1097,  30  South. 
204;   State  v.    Gardner,   54   Ohio   St.  31,  42 
N.  E.  999,  31  L.  R.  A.  600;  Lang  v.  City  of 
Bayonne,  74  N.  J.  L.  455,  68  Atl.  90,   15  L. 
R.  A.   (N.   S.)    93,  122  Am.  St.  Rep.  391,  12 
Ann.  Cas.  961 ;  State  v.  Poulin,  105  Me.  224, 
74  Atl.  119,  24  L.  R.  A.  (N.  S.)   408,  134  Am. 
St.  Rep.  543 ;  State  v.  Carroll,  3S  Conn.  449, 
9  Am.  Rep.  409 ;  Donough  v.  Dewey,  82  Mich. 
309,  46  N.  W.  782 ;  Cocke  v.  Halsey,  16  Pet. 
(U.   S.)    71,  10  L.  Ed.  S91,  where  the  office 
was  an  existing  one ;  contra,  Norton  v.  Shelby 
County,  118  U.  S.  425,  6  Sup.  Ct.  1121,  30  L. 
Ed.  178,  where  the  office  was  created  by  the 
same  act.    The  discussion  of  this  point  has  in 
almost  every  case  included  the  consideration 
of  what  may  be  assumed  to  be  a  rule,  when 
properly  understood,  that  there  cannot  be  a 
de  facto  officer  without  a  de  jure  office ;  Dill. 
Mun.  Corp.  §  276.     In  one  case  it  was  said 
that  a  de  facto  office  cannot  exist  under  a 
constitutional    government;    Hawver  v.    Sel- 
denridge,   2  W.   Va.   274,  94  Am.   Dec.  532; 
and  speaking  through  Mr.  Justice  Field  in 
the  much  discussed  case  of  Norton  v.  Shelby 
County,  above  cited   from   118  LT.    S.   425,   6 
Sup.  Ct.  1121,  30  L.  Ed.  178,  the  court  held 
that  acts  done  by  officers  appointed  under  an 
unconstitutional    statute   before   it   was   de- 
clared unconstitutional  were  void.    In  an  L. 
R.  A.   note  to   the   New   Jersey   case  above 
cited,  which  may  be  referred  to  for  a  col- 
lection of  cases,  it  is  assumed  that  the  doc- 
trine of  the  Supreme  Court  case  is  supported 
by  a  "decided  preponderance  of  authority." 
The  cases  cited  in  the  note,  however,  while 
making   a    strong   showing  for  a    rule  that 
there  must  be  a  de  jure  office,  seem  to  estab- 
lish an  overwhelming  weight  of  authority  in 
support  of   the  doctrine   above   stated,   that 
until    the    act   is    declared    unconstitutional 
there  is  a  de  jure  office  and  therefore  a  de 
facto  officer  whose  acts  are  to  be  considered 
valid.    The  opinions  in  the  Connecticut,  New 
Jersey    and   Maine    cases,   the    last   two   of 
which   take   direct    issue    with    Mr.    Justice 
Field,  and  the  first  of  which  was  decided  be- 
fore it,  seem  to  leave  no  logical  support  for 
his  opinion. 

When  a  special  judge  is  duly  elected,  qual- 
ifies, and  takes  possession  of  the  office  ac- 
cording to  law,  he  becomes  judge  de  facto, 
though  his  official  oath  is  not  filed  as  re- 
quired by  law;  and  the  proceedings  of  the 
court,  if  unchallenged  during  his  incumbeu- 
cv,  cannot  afterwards  be  questioned  collat- 
erally; State  v.  Miller,  111  Mo.  542,  20  S. 
W.  243.  See  In  re  Powers'  Estate,  65  Vt. 
399,  26  Atl.  640 ;  Keith  v.  State,  49  Ark.  439, 
5  S.  W.  880;  Campbell  v.  Com.,  96  Pa.  344; 
People  v.  Weber,  S6  111.  283. 

A  notary  who  continues  to  act  after  his 
commission  has  expired,  long  enough  to  af- 
ford a  reasonable  presumption  of  reappoint- 
ment, is  a  de  facto  notary;  Cary  v.  State, 
76  Ala.  78;  and  so  of  one  who  has  failed  to 
file  his  bond;   Keeney  v.   Leas,  14  la.  464; 


and  of  an  alien  appointed  a  notary;  Wilson 
v.  Kimmel,  109  Mo.  260,  19  S.  W.  24.  But 
where  a  notary's  commission  had  expired 
seven  months  before  he  took  an  acknowl- 
edgment, and  it  did  not  appear  that  he  had 
continued  to  act  and  hold  himself  out  as  a 
notary,  he  was  not  a  de  facto  notary ;  Sand- 
lin  v.  Dowdell,  143  Ala.  518,  39  South.  279, 
5  Ann.  Cas.  459. 

There  can  be  no  de  facto  officer  in  the  case 
of  an  office  abolished  by  statute;  Stenson  v. 
Koch,  152  N.  Y.  89,  46  N.  E.  176;  People  v. 
Welsh,  225  111.  364,  80  N.  E.  313 ;  Walker  v. 
Ins.  Co.,  62  Mo.  App.  223;  Gorman  v.  Peo- 
ple, 17  Colo.  596,  31  Pac.  335,  31  Am.  St.  Rep. 
350;  Farrier  v.  Dugan,  48  N.  J.  L.  613,  7 
Atl.  881,  affirming  Dugan  v.  Farrier,  47  N. 
J.  L.  383,  1  Atl.  751;  but  there  are  cases 
contra,  which,  however,  appear  to'  be  all 
cases  of  municipal  officers;  Adams  v.  Lin- 
dell,  5  Mo.  App.  197;  Hilgert  v.  Pav.  Co., 
107  Mo.  App.  385,  81  S.  W.  496;  Keeling 
v.  R.  Co.,  205  Pa.  31;  54  Atl.  485;  Per- 
kins v.  Fielding,  119  Mo.  149,  24  S.  W. 
444,  27  S.  W.  1100. 

An  injunction  does  not  lie  to  restrain  a  de 
facto  officer  from  performing  the  duties  of 
his  office,  on  account  of  irregularity  of  elec- 
tion, his  acts  being  valid  as  to  third  persons ; 
Chambers  v.  Adair,  110  Ky.  942,  62  S.  W. 
1128;  but  a  mandamus  may  be  directed  to 
one,  to  compel  him  to  perform  the  duties  of 
his  office,  and  he  cannot  set  up  in  defense 
that  he  is  not  in  possession  of  his  office  de 
jure;  Kelly  v.  Wimberly,  61  Miss.  548 ;  Har- 
vey v.  Philbrick,  49  N.  J.  L.  374,  8  Atl.  122. 
Where  the  defects  in  the  title  of  the  officer 
are  notorious,  such  as  to  make  those  relying 
on  his  acts  chargeable  with  such  knowledge, 
persons  relying  upon  such  acts  will  not  be 
protected;  oiiver  v.  Jersey  City,  63  N.  J.  L. 
634,  44  Atl.  709,  48  L.  R.  A.  412,  76  Am.  St. 
Rep.  228.  Officers  of  a  corporation  cease  to 
be  officers  de  facto  after  a  judgment  of  a 
court  of  last  resort  adjudging  that  they  have 
no  rightful  title  (notwithstanding  an  appeal 
pending  to  the  supreme  court  of  the  United 
States  and  no  judgment  of  ouster  appearing 
of  record)  ;  Rochester  &  G.  V.  R.  Co.  v. 
Bank,  60  Barb.  (N.  Y.)   234. 

Contracts  and  other  acts  of  de  facto  di- 
rectors of  corporations  are  valid;  Green's 
IBrice,  Ultra  Vires,  522,  n.  c. ;  Atlantic,  T.  & 
O.  R.  Co.  v.  Johnston,  70  N.  C.  348;  Ohio  & 
M.  R.  Co.  v.  McPherson,  35  Mo.  13,  86  Am. 
Dec.  128 ;  Delaware  &  H.  Canal  Co.  v.  Coal 
Co.,  21  Pa.  131. 

An  officer  de  facto  is  prima  facie  one  de 
jure;  Allen  v.  State,  21  Ga.  217,  68  Am.  Dec. 
457. 

When  the  inspectors  of  an  election  fail 
to  issue  a  certificate  of  election,  one  who 
has  received  the  highest  number  of  legal 
votes  cast,  and  holding  over  as  the  present 
incumbent,  has  sufficient  apparent  authority 
or  color  of  title  to  be  considered  an  officer 


DE  FACTO 


7G3 


DE  FACTO 


de  facto;  Montgomery  v.  O'Dcll,  07  Hun  1G9, 
22  N.  Y.   Supp.  412.  * 

A  government  ric  facto  signifies  one  com- 
pletely, though  only  temporarily,  established 
in  the  place  of  the  lawful  government; 
Thomas  v.  Taylor,  42  Miss.  651,  703,  2  Am. 
Bep.  025;  Chisholrn  v.  Coleman,  43  Ala.  204, 
'.'I  Am.  Dec.  077.  See  Dr.  Juki:;  Austin,  Jur. 
Lect.  vi.  p.  336. 

A  wife  de  facto  only  is  one  whose  mar- 
riage is  voidable  by  decree;  4  Kent  36. 

Blockade  de  facto  is  one  actually  main- 
tained :  1   Kent  44. 

De  Facto  Corporations.  A  eolorahle  cor- 
porate organization  of  persons  Intending  in 
good  faith  to  form  a  corporation,  under  a 
law  authorizing  it,  who  have  failed  to  com- 
ply with  one  or  more  provisions  of  the  stat- 
ute, but  have  used  some  of  the  powers 
which,  if  a  de  jure  corporation,  it  would 
have  possessed. 

An  apparent  corporate  organization,  as- 
serted to  be  a  corporation  by  its  members. 
and  actually  acting  as  such,  but  lacking  the 
creative  fiat  of  the  law.  In  re  Gibbs'  Estate, 
157  Pa.  59,  27  Atl.  3S3,  22  L.  R.  A.  276. 

There  must  have  been:  (1)  A  colorable 
corporate  organization ;  P.ergeron  v.  Hobbs, 
m  Wis.  641,  71  N.  W.  1056,  or,  Am.  St.  Rep. 
85:  Abbott  v.  Refining  Co.,  4  Neb.  416;  Fin- 
negan  v.  Noerenberg,  52  Minn.  243,  53  N.  W. 
1150,  18  L.  R.  A.  778,  38  Am.  St.  Rep.  r,.vj  ; 
McLeary  v.  Dawson,  87  Tex.  524,  538,  29  S. 
W.  1044;  Tulare  Irr.  District  v.  Shepard, 
185  C.  S.  13,  22  Sup.  Ct.  531,  46  L.  Ed.  773. 
An  agreement  to  do  business  as  a  corpora- 
tion, fulfilling  part  of  the  requisites  but  pur- 
posely stopping  short  of  complete  incorpora- 
tion is  not  sufficient :  Card  v.  Moore,  173  N. 
Y.  598,  GO  N.  E.  1105. 

(2)  A  statute  authorizing  the  proposed 
corporation;  American  Loan  &  Trust  Co.  v. 
R.  Co..  157  111.  641,  42  X.  E.  153;  Imperial 
BTg  Co.  v.  Board  of  Trade.  238  111.  100,  87 
N.  E.  107;  Eaton  v.  Walker,  76  Mich.  579, 
43  X.  W.  638,  6  L.  R.  A.  102;  Bradley  v. 
Reppill,  13.3  Mo.  545,  -".2  S.  W.  645,  34  S.  W. 
841,  H4  Am.  St.  Bep.  685;  Duke  v.  Taylor,  ::7 
Fla.  64,  19  South.  172.  31  L.  E.  A.  484,  53 
Am.  St.  Rep.  2.".2  ;  Davis  v.  Stevens.  104  Fed. 
235j  Snyder  v.  Studebaker.  19  Ind.  462.  81 
Am.  Dec.  415;  Tulare  Irr.  District  v.  Shep- 
ard, 185  U.  S.  13.  22  Sup.  Ct.  531,  -10  L.  Ed. 
773;  which,  though  in  mosi  cases  a  general 
incorporation  act.  may  be  a  special  charter, 
of  which  there  has  been  a  failure  to  perform 
some  condition;  Utica  Ins.  Co.  v.  Tllman,  1 
Wend.  (N.  Y.l  ">.".";  Bank  of  Manchester  v. 
Allen,  11  Vt  302;  Society  of  Middlesex  Hus- 
bandmen <5c  Manufacturers  v.  Davis,  •">  Mete. 
(Mass.)  13.3;  Buncombe  Turnpike  Co.  v. 
M'Carson,  IS  X.  O.  306;  Gaines  v.  Rank  of 
Mississippi,  12  Ark.  700;  and  it  may  be  un- 
der a  law  passed  by  a  de  facto  legislature; 
U.  S.  v.  Ins.  Companies.  22  Wall.  (U.  S.)  99; 
or  under  a  law  passed  subsequently  to  the 
organization  providing  for  the  recognition  of 


existing  corporations  on  filing  a  certificate, 
which  it  failed  to  do;  Tennessee  Automatic 
Lighting  Co.  v.  Massey  <  .  S.  W.  35; 

or  if  there  is  a   law  authorizing  it,  and  the 
attempt  was  under  a  different  law.  it  i 
Scienl ;  <;<  r.  R.  i ' 

:it  Ga.  ::<";.  L'l    S.   B.  701,  :vj.  L.   R.   A 
17  Am.  St.  Rep.  153.     Bnt  w  1 
rations     of     different     states     attempted     to 
merge,  without  any  enabling  statute,  it  was 
a  nullity  and  they  did  not  !■■  irpora- 

tion  de  facto;  Whaley  v.  Bankers'  Union  of 
the  World,  39  Tex.  Civ.  App.  385,  88  S.  W. 
259;  American  Loan  &  Trust  Co.  v.  R.  Co., 
157  111.  641,  -12  X.  E.  153. 

(3)  A  user  of  corporate  powers  conferred  ; 
Elgin  Xat.  Watch  Co.  v.  Loveland,  132 

41;    Emery  v.  De  I'eyster,  77  App.  Div.  0.",.  7V 
N.  Y.  Supp.  1050;    Tulare  Irr.  List.  v.   - 
ard.  1^7,  U.  S.  13,  22  Sup.  Ct.  531,  46  L.  Ed. 
773. 

(4)  Good  faith  in  the  transaction;  Tulare 
LIT.  I -1st.  v.  Shepard,  185  U.  S.  1,  22  Sup. 
Ct.  531,  46  L.  Ed.  773;  Williamson  v.  Loan 
Fund  Ass'n,  S9  Ind.  389;  Hasselman  v. 
Mortgage  Co.,  97  Ind.  365;  Yanneman  v. 
Young,  52  X.  J.  L.  403,  20  Atl.  53;  Elizabeth- 
town   Gaslight   Co.    v.    Green,   49    X.    .' 

329,  338,  24  Atl.  5G0 ;  Society  Perun  v.  Cleve- 
land. 43  Ohio  St.  4S1,  3  X.  E.  357;  American 
Loan  &  Trust  Co.  v.  R.  Co.,  157  111.  041.  652, 
42  N.  E.  153;  Slanwood  v.  Metal  Co.,  107 
111.  App.  569;  Gilkey  v.  Town  of  How,  105 
Wis.  41,  45,  81  X.  W.  120,  49  L.  R.  A.  4S3 ; 
Slocuni  v.  Head,  105  Wis.  431,  SI  X.  W.  'i;:;, 
50  L.  R.  A.  324;  Haas  v.  Dank.  41  Neb.  754, 
60  N.  W.  85. 

The  second  and  third  conditions  were  giv- 
en as  a  sufficient  definition  in  Methodist 
Episcopal  Union  Church  v.  Tickett,  19  X.  Y. 
482,  and  this  was  adopted  in  Trustees  of 
East  Norway  Lake  Norwegian  Evangelical 
Lutheran  Church  v.  Froislie.  37  Minn.  4  17, 
35  N.  W.  260;  but  criticised  in  Finnegan  v. 
Noerenberg,  52  Minn.  243,  53  N.  W.  1150,  18 
L.  R.  A.  778,  3S  Am.  St.  Rep.  552.  wher< 
first  was  added  and  the  definition,  so  amend- 
ed, repeated  in  Johnson  v.  Okerstrom,  70 
Minn,  303,  7."»  X.  W.  147.  was.  in  prefi 
to  that  of  the  New  York  court,  adopl 
Gibbs'  Estate.  157  Pa.  59,  27  Atl.  383,  22  L 
R.  A.  270.  It  is  believed,  however,  that  the 
fourth  must  be  added  to  make  a  definition 
completely  Ing    all     the    conditions 

which  are  required  by  due  consideration  of 
the  authorities  which  create  and  support  the 
doctrine  of  dc  fa<to  corporations,  indeed  in 
Tulare  Irr.  Dist.  v.  Shepard,  185  1".  S.  1.  14. 
22  Sup.  Ct  531,  40  L.  Ed.  773.  Peckham,  J., 
while  enumerating  the  first  three  conditions 
as  the  requisites  proceeds  in  the  same  para- 
graph to  state  the  "bona  fide  attempt  to  or- 
ganize" under  a  general  law.  and  "actual 
user  of  iie  corporate  franchise"  as  the  ele- 
ments which  constituted  the  defendant  a  de 
facto  corporation.  The  four  conditions  are 
given    substantially   as    requisites    in    many 


DE  FACTO 


764 


DE  FACTO 


cases ;  Clark  v.  Coal  Co.,  35  Ind.  App.  65,  73 
N.  E.  727 ;  Mackay  v.  R.  Co.,  82  Conn.  73,  72 
Atl.  583,  24  L.  R.  A.  (N.  S.)  76S;  Marsli  v. 
Mathias,  19  Utah  350,  56  Pac.  1074 ;  Franke 
v.  Mann,  106  Wis.  US,  81  N.  W.  1014,  48  L. 
R.  A.  856 ;  Stevens  v.  History  Co.,  140  App. 
Div.  570,  125  N.  Y.  Supp.  573;  and  are  all 
combined  under  three  heads  in  Stanwood  v. 
Metal  Co.,  107  111.  App.  569. 

The  mere  carrying  on,  under  a  company 
name,  of  a  business  of  such  character  as  may 
well  be  conducted  by  an  individual,  or  part- 
nership, does  not  constitute  a  de  facto  corpo- 
ration;    Elgin  Nat.  Watch  Co.  v.  Loveland, 
132  Fed.  41 ;   nor  is  a  bank,  exclusively  own- 
ed by  one  person,  such  a  corporation ;    Long- 
fellow v.  Barnard,  59  Neb.  455,  81  N.  W.  307. 
Such  corporations   are  recognized  by   the 
same  rule  which  recognizes  de  facto  officers, 
and  this  is  necessary  for  public  and  private 
security;    Clement  v.   Everest,  29  Mich.   19. 
There  cannot  be  a  corporation  de  facto  where 
it  could  not  exist  de  jure;   Davis  v.  Stevens, 
104  Fed.  235;    Brown  v.  Power  Co.,  113  Ga: 
462,  39  S.  E.  71;    State  v.  Stevens,  16  S.  D. 
309,  92  N.  W.  420 ;    Evenson  v.  Ellingson,  67 
Wis.  634,  31  N.  W.  342;    nor  can  one  exist 
under  an  unconstitutional  statute;    Clark  v. 
Coal  Co.,  165  Ind.  213,  73  N.  E.  1083,  112  Am. 
St.   Rep.   217;    Huber   v.   Martin,    127  Wis. 
412,  105  N.  W.  1031,  1135,  3  L.  R.  A.  (N.  S.) 
653,  .115  Am.  St.  Rep.  1023,  7  Ann.  Cas.  400. 
The  state  only  can  proceed  against  such 
cox-poration,  by  quo  warranto  to  test  the  va- 
lidity  of   its  corporate    existence;    Hon   v. 
State,  89  Ind.  249 ;   Savings  Bank  Co.  v.  Mil- 
ler, 24  Ohio  C.  C.  198 ;   Los  Angeles  Holiness 
Band  v.  Spires,  126  Cal.  541,  5S  Pac.  1049; 
Armour  v.  E.  Bement's  Sons,  123  Fed.  56,  62 
C.  C.  A.  142;  Mayor,  etc.,  of  City  of  Wilming- 
ton v.  Addicks,  8  Del.  Ch.  310,  43  Atl.  297; 
Wyandotte  Electric-Light  Co.  v.  City  of  Wy- 
andotte, 124  Mich.  43,  82  N.  W.  821 ;  and  this 
is  a  rule  of  public  policy ;   Continental  Trust 
Co.  v.  R.  Co.,  82  Fed.  642,  649;    and  the  de 
facto  corporation  may  be  made  sole  defend- 
ant in  such  proceeding  without  joining  the 
associates ;   New  Orleans  Debenture,  etc.,  Co. 
v.  Louisiana,  ISO  U.  S.  320,  21  Sup.  Ct.  378, 
45  L.  Ed.  550;    and  a  decree  at  the  suit  of 
the  state  avoiding  the  charter  does  not  deny 
to  the  incorporators  the  equal  protection  of 
the  laws  or  take  away  their  property  with- 
out due  process  of  law;    id.;   but  a  private 
individual    cannot   institute   proceedings    by 
quo  xcarranto  for  the  forfeiture  of  a  corpo- 
rate charter ;    Attorney   General   v.   Adonai 
Shomo  Corp.,  167  Mass.  424,  45  N.  E.  762; 
Appeal  of  Western  Pennsylvania  R.  Co.,  104 
Pa.  399;    Com.  v.  Bank,  2  Grant,  Cas.  (Pa.) 
392;    North  v.   State,  107   Ind.  356,  8  N.  E. 
159 ;   State  v.  Turnpike  Co.,  21  N.  J.  L.  9.    An 
action  instituted  on  behalf  of  the  state  to 
vacate  a  charter  for  non-compliance  with  the 
act  under  which  it  purports  to  have  organiz- 
ed may  be  instituted-  by  "the  attorney-gen- 
eral," without  a  relator,  and  it  is  strictly  a 


people's  action ;    People  v.  Cement  Co.,   131 
N.  Y.  143,  29  N.  E.  947,  15  L.  R.  A.  240. 

The   corporate   existence  may   not   be  at- 
tacked by  the  associates  who  have  acted  as 
a  corporation  and  are  sued  as  such  by  one 
with  whom  they  have  dealt  as  such ;   Racine 
&  M.  R.  Co.  v.  Trust  Co.,  49  111.  331,  95  Am. 
Dec.  595 ;   Hamilton  v.  R.  Co.,  144  Pa.  34,  23 
Atl.  53,  13  L.  R.  A.  779;    Rush  v.  Steamboat 
Co.,  84  N.  C.  702;    Empire  Mfg.  Co.  v.  Stu- 
art, 46  Mich.  4S2,  9  N.  W.  527;    Toledo,  St. 
L.  &  K.  C.  R.  Co.  v.  Trust  Co.,  95  Fed.  497, 
507,  36  C.  C.  A.  155 ;   contra;  Boyce  v.  Trus- 
tees of  M.  E.  Church,  46  Md.  359 ;  or  by  one 
of  the  associates  as  against  the  others ;  Cur- 
tis v.  Tracy,  109  111.  233,  4S  N.  E.  399,  61  Am. 
St.  Rep.  168;   Lincoln  Park  Chapter  No.  177 
Royal  Arch  Masons  v.  Swatek,  204  111.  228, 
68  N.  E.  429 ;    Franke  v.  Mann,  106  Wis.  118, 
81  N.  W.  1014,  48  L.  R.  A.  856;    Merchants' 
&  Planters'  Line  v.  Waganer,   71  Ala.  5S1, 
585  ;  Heald  v.'  Owen,  79  la.  23,  44  N.  W.  210 ; 
Foster  v.  Moulton,  35  Minn.  45S,  29  N.  W. 
155;    or  by  all  the  others  as  against  one; 
Meurer  v.  Protective  Ass'n,  95  Mich.  451,  54 
N.  W.  954;    or  by  an  associate  or  organizer 
as  against  one  who  is  induced  by  him  to  deal 
with  the  corporation  (as  to  sell  property  to 
it) ;    Smith  v.  Mayfield,  163  111.  447,  45  N.  E. 
157 ;    or  by  one  who  deals  or  contracts  with 
it  as  a   corporation ;    Commercial   Bank  of 
Keokuk,  la.,  v.  Pfeiffer,  10S  N.  X.  242.  15  N. 
E.  311;    Seven  Star  Grange  No.  73,  Patrons 
of  Husbandry,  v.  Ferguson,  98  Me.  176,  56 
Atl.  64S;   Hudson  v.  Seminary  Corp.,  113  111. 
618;    Cravens  v.  Eagle  Cotton  Mills  Co.,  120 
Ind.   6,  21  N.  E.  9S1,  16  Am.  St.  Rep.  29S; 
Bartlett  v.  Wilbur,  53  Md.  485,  49S ;    Butch- 
ers' &  Drovers'  Bank  of  St  Louis  v.  McDon- 
ald, 130  Mass.  264;    Bibb  v.  Hall,  101  Ala. 
79,   14   South.   9S;    Canfield   v.    Gregory,   66 
Conn.  9,  33  Atl.  536 ;    Way  v.  Grease  Co.,  60 
N.  J.  Eq.  263,  47  Atl.  44 ;   Lincoln  Park  Chap- 
ter No.  177  Royal  Arch  Masons  v.   Swatek, 
204  111.  228,  68  N.  E.  429;    nor  can  one  who 
contracts  with  the  associates  as  a  corpora- 
tion   hold    them    individually    liable    for    a 
breach;    Whitford  v.  Laidler,  94  N.  Y.  145, 
151,  46  Am.  Rep.  131 ;    Vanneman  v.  Young, 
52  N.  J.  L.  403,  20  Atl.  53 ;    Clausen  v.  Head, 
110  Wis.  405,  85  N.  W.  1028,  84  Am.  St.  Rep. 
933;    Love  v.  Ramsey,  139  Mich.  47,  102  N. 
W/279;    Larned  v.   Beal,  65  N.   H.  184,  23 
Atl.  149;   Tennessee  Automatic  Lighting  Co. 
v.  Massey  (Tenn.)  56  S.  W.  35;    Richards  v. 
Bank,  75  Minn.  196,  77  N.  W.  822 ;    Planters' 
&  Miners'  Bank  v.  Padgett,  69  Ga.  159 ;   Ow- 
ensboro  Wagon  Co.  v.  Bliss,  132  Ala.  253,  31 
South.  81,  90  Am.  St.  Rep.  907;    unless  un- 
der a  statute  making  persons  who  unlawful- 
ly assume  corporate  powers  personally  lia- 
ble ;   Loverin  v.  McLaughlin,  161  111.  417,  434, 
44  N.  E..  99 ;    Sweney  Bros.  v.  Talcott,  85  la. 
103;    Thornton  v.  Balcom,  85  la.  198,  52  N. 
W.  190. 

It  Is  a  general  rule  that  the  validity  of 
the  corporate  organization  cannot  be  collat- 


DE  FACTO 


7G5 


DE  FACTO 


erally  attacked ;  Doty  v.  Patterson,  155  Ind.  I 
60,  5G  N.  E.  668 ;  Gilkey  v.  Town  of  How,  105  | 
Wis.  41,  46,  81  N.  W.  120,  49  L.  R.  A.  4S3;  | 
Cochran  v.  Arnold,  58  Pa.  399 ;  Mononga-  ! 
hela  Bridge  Co.  v.  Traction  Co.,  196  Pa.  25, 
46  Atl.  99,  79  Am.  St.  Rep.  685 ;  State  v.  Ful- 
ler, 96  Mo.  165,  9  S.  W.  583  ;  Kecne  v.  Van 
Reuth,  48  Md.  1S4 ;  Saunders  v.  Farmer,  62 
N.  H.  572 ;  People  v.  La  Rue,  67  Cal.  526,  8 
Pac.  84;  Atchison,  T.  &  S.  F.  R.  Co.  v.  Com'rs 
of  Sumner  County,  51  Kan.  617,  33  Pac.  312 ; 
Crowder  v.  Town  of  Sullivan,  128  Ind.  486, 
28  N.  E.  94,  13  L.  R.  A.  647;  Otoe  County 
Fair  &  Driving  Park  Ass'n  v.  Domau,  1  Xeb. 
(Unof.)  179,  95  N.  W.  327;  Terry  v.  Packing 
&  Provision  Co.,  105  111.  App.  063;  People  v. 
Irr.  Disc.,  12S  Cal.  477,  (51  l'ac.  SG  ;  Harris 
v.  Land  Co.,  128  Ala.  652,  29  South.  611.  Col- 
lateral attack  has  been  permitted  in  a  suit 
to  enjoin  the  collection  of  .assessments  for 
turnpike  construction  on  the  ground  of  want 
of  legal  organization;  Busenback  v.  Road 
Co.,  43  Ind.  265 ;  also  as  a  defense  to  a  suit 
against  an  original  associate  for  his  stock 
subscription ;  Indianapolis  Furnace  &  Min- 
ing Co.  v.  Herkimer,  46  Ind.  142;  Dorris  v. 
Sweeney,  60  N.  Y.  463  (where  it  was  said 
that  one  contracting  with  a  de  facto  corpo- 
ration after  its  formation  cannot  set  up  its 
invalidity) ;  and  where  capital  stock  agreed 
upon  is  not  fully  subscribed,  a  subscriber  who 
has  not  participated  in.  or  bad  notice  of,  the 
organization,  is  not  estopped  from  setting  up 
the  illegality  of  the  assessment  for  his  sub- 
scriptions; Haskell  v.  Worthington,  94  Mo. 
560,  7  S.  W.  481.  In  Buffalo  &  A.  R.  Co.  v. 
Cary,  26  N.  Y.  75,  it  was  held  that  very 
slight  proof  of  user  (election  of  officers  by 
the  persons  calling  themselves  directors)  was 
sufficient  to  prevent  a  subscriber  from  setting 
up  the  defense  of  defective  organization  in 
a  suit  against  him  for  his  stock  subscrip- 
tion. The  validity  of  a  conveyance  to  or  by 
a  corporation  de  facto  cannot  be  questioned 
in  a  collateral  proceeding ;  Finch  v.  Ullman, 
105  Mo.  255,  16  S.  W.  863,  24  Am.  St.  Rep. 
383,  where  it  was  said  that  "this  rule  is  not 
based  on  estoppel  .  .  .  but  on  the  re- 
quirements of  public  policy  that  the  security 
of  titles  be  not  impaired." 

Collateral  attack  is  usually  permitted  in 
defence  against  an  attempt  by  a  de  facto  cor- 
poration to  exercise  the  right  of  eminent 
domain  ;  Tulare  Irrigation  District  v.  Shep- 
ard,  185  U.  S.  1,  22  Sup.  Ct.  531,  46  L.  Ed. 
773;  In  re  Union  El.  R.  Co.  of  Brooklyn, 
112  N.  Y.  61,  19  N.  E.  664,  2  I..  R.  A.  359; 
"Williamson  v.  Bldg.  &  Loan  Fund  Ass'n,  89 
Ind.  389 ;  Kinston  &  C.  R.  Co.  v.  Stroud,  132 
N.  C.  413,  43  S.  E.  913  (see  Wellington  &  P. 
R.  Co.  v.  Lumber  Co.,  114  N.  C.  690,  19  S.  E. 
646);  Powers  v.  R.  Co.,  33  Ohio  St  429;  St 
Joseph  &  I.  R.  Co.  v.  Shambaugh,  106  Mo. 
557,  17  S.  W.  581;  Hampton  v.  Water  Supply 
Co.,  65  N.  J.  L.  158,  46  Atl.  650:  contra,  Ed- 
dleman  v.  Power  Co.,  217  111.  409,  75  X.  E. 
510;    Terre  Haute  &  P.  R.  Co.  v.  Robbins, 


217  111.  376,  93  X.  B.  398  :    Detroit  &  T.  S.  L. 
R.  Co.  v.  Campbell,  140  Mich.  384,  103  X.  W. 

856;   Central  of  Georgia  B.  Co.  v.  R.  Co.,  144 
Ala.   <139,  39  South.  473,  2   I..    B   A.    i> 
144;     Tostal    Tel.    Cable    Co.    v.    It.    C 
Utah   47L  65  Pac.  735,  90  Am.  .St.   . 
and  see  Portland  &  <;.  Turnpike  Co. 
88  Ky.  226,  10  S.  W.  791;    and  it   I 
collateral  attack  where  there  is  no  law  un- 
der which  it  could  become  a  corporate 
jure;  Clark  v.  Coal  Co.,  165  ind.  213,  1 
E.    10S3,   112   Am.    St.    Rep.   L'17.      As   to   the 
right  of  a  de  facto  corporation  to  e.\> 
the  power  of  eminent  domain,  see  2  L.  R.  A. 
(X.  S.)  144,  note. 

In  some  cases  where  a  tort  was  committed 
for  which  the  remedy  would  have  been 
against  the  corporation,  if  dc  jure,  because 
of  the  defective  organization  the  associates 
were  held  personally  liable;  Yredenburg  v. 
Behan,  33  La.  Ann.  0li7 ;  Smith  v.  Warden, 
S6  Mo.   3S2;    and  a  similar  remedy  ag 

ates  has  been  given  for  breach  of  con- 
tract where  the  intention  was  for  corporate 
action,  but  the  other  party  did  not  know  it; 
Guckert  v.  Ilacke,  150  Pa.  303,  28  Atl.  247; 
Xew  York  Nat  Exch.  Bank  v.  Crowell,  177 
Pa.  313,  35  Atl.  613  (see  Vanhorn  v.  Corcoran, 
1L>7  Pa.  255,  26S,  IS  Atl.  Hi.  4  L  R.  A.  i 
Christian  &  Craft  Grocery  Co.  v.  Lumber  Co.. 
121  Ala.  340,  25  South,  566;  Slocum  v.  Head, 
105  Wis.  431,  81  N.  W.  673,  50  L.  B,  A.  324; 
Field  v.  Cooks,  16  La.  Ann.  153;  but  if  he 
elects  to  proceed  against  them  as  a  corpora- 
tion and  fails  he  is  estopped  afterwards  to 
sue  them  as  individuals ;  Clausen  v.  I 
110  Wis.  405,  85  X.  W.  1028,  84  Am.  St.  Rep. 
933. 

The  immunity  from  personal  liability  of 
the  associates  who  form  a  de  facto  corpora- 
tion is  limited  to  transactions  with  those  who 
deal  with  them  as  a  corporation,  entered  in- 
to in  good  faith,  and  it  is  based  upon  that 
and  the  estoppel  arising  from  the  dealing 
with  the  supposed  organization  as  a  corpora- 
tion, generally  believed  to  be  and  treated  as 
such;  Slocum  v.  Head,  1U5  Wis.  431,  434,  81 
X.  W.  673.  50  L.  B.  a.  324;  Gartside  Coal 
Co.  v.  Maxwell.  22  Fed.  197. 

An  injunction  has  been  refused  against  a 
de  facto  corporation  exercising  powers  which 
would  belong  to  it  if  de  jure;  ElizabethtoWD 
Gas  Eight  Co.  v.  Green,  49  N.  .!.  E  :.  329,  331, 
332,  24  Atl.  560;  but  equity  has  assumed  ju- 
risdiction to  ascertain  whether  the  organiza- 
tion of  a  corporation  is  Legal;  Union  Water 
Co.  v.  Kean,  52  X.  J.  Bq.  111.  '27  Atl.  1015. 

Such  a  corporation  may  "maintain  an  ac- 
tion against  any  one,  other  than   the 
who  has  contracted  with  the  corporation,  or 
who  has  done  it  a   wrong;"    Baltimore  &   P. 
K.  Co.  v.  Fifth  '  lurch,  137  r.  g 

572,  11  Sup.  Ct  1S5.  34  L.  Ed.  7M  ;  Tar  Riv- 
er Xav.  Co.  v.  Xeal.  10  X.  C.  520,  537;  and 
in  some  states  there  are  statutes  forbidding 
one  suing  or  sued  by  a  corporation  to  set  up 
the  lack  of  legal  organization,  as  e.  g.  la' 


DE  FACTO 


766 


DE  FACTO 


Code  (1897)  §  1G36;  Ky.  Comp.  St.  1903,  § 
566;  Comp.  Laws  S.  D.  §  2892,  which  last 
statute  is  held  to  be  merely  declaratory  of 
the  law  as  it  previously  existed ;  Davis  v. 
Stevens,  104  Fed.  235. 

It  may  seek  an  injunction  to  restrain  ir- 
reparable injury  to  property;  Williams  v. 
Ry.  Co.,  130  Ind.  71,  29  N.  E.  408,  15  L.  R.  A. 
64,  30  Am.  St.  Rep.  201 ;  Cincinnati,  L.  &  C. 
R.  Co.  v.  Ry.  Co.,  75  111.  113;  or  sue  any 
one,  other  than  the  state,  either  for  breach  of 
contract  or  a  wrong  done  to  it;  Baltimore 
&  P.  R.  Co.  v.  Fifth  Baptist  Church,  137  U.  S. 
568,  572,  11  Sup.  Ct.  185,  34  L.  Ed.  784;  as 
for  infringement  of  a  patent;  American  Ca- 
ble Ry.  Co.  v.  City  of  New  York,  68  Fed.  227 ; 
for  the  protection  of  its  property  from  a  tort- 
feasor ;  Searsburgh  Turnpike  Co.  v.  Cutler,  6 
Vt.  315,  323 ;  for  trespass  on  personal  prop- 
erty; Persse  &  Brooks  Paper  Works  v.  Wil- 
lett,  1  Rob.  (N.  Y.)  131 ;  for  conversion  ;  Rem- 
ington Paper  Co.  v.  O'Dougherty,  65  N.  Y. 
570 ;  or  as  indorsee  or  assignee  of  a  note  or 
chose  in  action ;  Wilcox  v.  R.  Co.,  43  Mich. 
584,  590,  5  N.  W.  1003;  Cozzens  v.  Brick 
Co.,  166  111.  213,  46  N.  E.  788 ;  Haas  v.  Bank, 
41  Neb.  754,  60  N.  W.  85;  or  for  use  and  oc- 
cupation of  land ;  Philippine  Sugar  Estates 
Development  Co.  v.  U.  S.,  39  Ct.  CI.  225. 

Where  the  existence  of  the  corporation  is 
only  collaterally  in  issue,  slight  proof  only 
is  required  to  make  a  prima  facie  case  of  de 
facto  incorporation ;  Lucas  v.  Bank,  2  Stew. 
(Ala.)  147 ;  Memphis  &  St.  F.  Plank  Road  Co. 
v.  Rives,  21  Ark.  302;  Mix  v.  Bank,  91  111. 
20,  33  Am.  Rep.  44;  Eakright  v.  R.  Co.,  13 
Ind.  404 ;  Merchants'  Nat.  Bank  v.  Glendon 
Co.,  120  Mass.  97 ;  United  States  Vinegar  Co. 
v.  Schlegel,  143  N.  Y.  537,  543,  38  N.  E.  729 ; 
President,  etc.,  of  Bank  of  Manchester  v. 
Allen,  11  Yt.  302. 

A  de  facto  corporation  may  be  a  conduit  of 
title,  to  protect  a  mortgagee;  Hackensack 
Water  Co.  v.  De  Kay,  36  N.  J.  Eq.  559 ;  Dug- 
gan  v.  Inv.  Co.,  11  Colo.  113,  17  Pac.  105; 
Georgia  S.  &  F.  R.  Co.  v.  Trust  &  Deposit 
Co.,  94  Ga.  306,  21  S.  E.  701,  32  L.  R.  A.  208, 
47  Am.  St.  Rep.  153;  or  a  grantee;  Society 
Perun  v.  Cleveland,  43  Ohio  St.  481,  3  N.  E. 
357  (where  the  state  had  maintained  quo 
warranto)  ;  or  a  lessee;  City  of  Denver  v. 
Mullen,  7  Colo.  35S,  3  Pac.  693;  and  the 
grantee  of  such  corporation  has  maintained 
a  writ  of  entry;  Saunders  v.  Farmer,  62  N. 
H.  572 ;  Lusk  v.  Riggs,  70  Neb.  713,  97  N.  W. 
1033;  id.,  70  Neb.  718,  102  N.  W.  88  ;  Cren- 
shaw v.  Ullman,  113  Mo.  633,  20  S.  W.  1077 ; 
or  ejectment;  Finch  v.  Ullman,  105  Mo.  255, 
16  S.  W.  863,  24  Am.  St.  Rep.  383 ;  though 
against  one  who  has  not  dealt  with  the  as- 
sociates as  a  corporation;  Chiniquy  v.  Cath- 
olic Bishop,  41  111.  14S;  East  Norway  Lake 
Church  v.  Froislie,  37  Minn.  447,  35  N.  W. 
260. 

A  de  facto  corporation  may  proceed  against 
its  grantor  for  reformation  of  a  deed ;  Otoe 
County  Fair  &  Driving  Park  Ass'n  v.  Doman, 


1  Neb.  (Unof .)  179,  95  N.  W.  327 ;  or  to  have 
land  discharged  from  the  lien  of  a  judg- 
ment against  its  grantor;  Keyes  v.  Smith, 
87  X.  J.  D.  190,  51  Atl.  122;  and  may  ac- 
quire, hold  and  convey  land ;  New  York,  B. 
&  E.  R.  Co.  v.  Motil,  81  Conn.  406,  71  Atl. 
563. 

If  the  associates  deal  as  partners  and  con- 
tinue to  do  so  after  being  incorporated,  with- 
out giving  notice,  they  are  still  liable  as 
partners ;  Perkins  v.  Rouss,  78  Miss.  343,  29 
South.  92;  Martin  v.  Fewell,  79  Mo.  401, 
412 ;  and  where  one  has  no  knowledge  of 
the  existence  of  a  charter,  and  there  is  noth- 
ing to  put  him  on  inquiry,  he  may  hold  the 
supposed  incorporators  personally  liable  as 
partners ;  Guckert  v.  Hacke,  159  Pa.  303,  28 
Atl.  249. 

The  theory  that  a  de  facto  corporation  has 
no  real  existence  has  no  foundation,  either 
in  reason  or  authority.  A  de  facto  corpora- 
tion is  a  reality.  It  has  an  actual  and  sub- 
stantial legal  existence.  It  is,  as  the  term 
implies,  a  corporation;  Society  Perun  v. 
Cleveland,  43  Ohio  St.  481,  490,  3  N.  E.  357. 
See  discussions  of  de  facto  corporations  in 
20  Harv.  L.  Rev.  456 ;    25  id.  623. 

De  Facto  Court.  A  court  established  by 
statute  apparently  valid,  which  has  organiz- 
ed with  a  judge  appointed,  and  has  exercised 
authority  as  a  court.  Burt  v.  R.  Co.,  31 
Minn.  472,  18  N.  W.  285,  2S9. 

"A  de  facto  court  cannot  exist  by  virtue  of 
a  statute  under  a  written  constitution  which 
ordains  one  supreme  court,  and  defines  the 
qualifications  and  duties  of  its  judges,  and 
prescribes  the  mode  of  appointing  them.  The 
attempt  of  the  legislature  to  abolish  the  con- 
stitutional court  of  appeals  and  establish  a 
new  one  was  ineffectual  to  create  either  a  de 
facto  or  de  jure  court  for  want  of  legislative 
power";  Hildreth's  Heirs  v.  Mclntire's  Dev- 
isee, 1  J.  J.  Marsh.  (Ky.)  206,  19  Am.  Dec.  61. 
De  Facto  Judge.  One  duly  elected,  quali- 
fied and  acting  as  such,  under  conditions  on 
which  one  might  be  properly  appointed,  but 
who  failed  to  comply  with  some  necessary  act 
to  qualify  him,  as  taking  the  oath  of  office. 
State  v.  Miller,  111  Mo.  542,  20  S.  W.  243. 
There  must  be  a  duly  constituted  office  and 
a  vacancy  therein  before  the  election  or  ap- 
pointment; Caldwell  v.  Barrett,  71  Ark.  310, 
74  S.  W.  748. 

One  has  been  recognized  as  a  de  facto 
judge,  though  the  statute  under  which  he 
was  appointed  was  unconstitutional  and  void, 
when  the  office  was  originally  created  under 
a  valid  law ;  Walcott  v.  Wells,  21  Nev.  47.  24 
Pac.  367,  9  L.  R.  A.  59,  37  Am.  St.  Rep.  478. 
And  when  the  incumbent  was  ill  and  an  act- 
ing judge  was  appointed,  qualified,  assumed 
the  duties  and  the  public  acquiesced,  he  was 
held  to  be  a  de  facto  judge;  Dredla  v. 
Baache,  60  Neb.  655,  83  N.  W.  916. 

DE  FAIRE  ECHELLE.  In  French  Law. 
A  clause  commonly  contained  in  French  in- 


DE  FAIRE  ECHELLE 


767 


DE  INJURIA 


surance  policies,  which  is  equivalent  to  a  li- 
cense for  a  vessel  to  touch  and  trade  at  in- 
termediate ports.  American  Ins.  Co.  v.  Gris- 
wold,  14  Wend.    (N.  Y.)  491. 

DE  H/ERETICO  COMBURENDO  (Lat. 
for  burning  a  heretic).  A  writ  which  lay 
where  a  heretic  had  been  convicted  of  heresy, 
had  refused  fo  abjure  or  had  abjured,  and 
had  relapsed  into  heresy.     4  Bla.  Com.  46. 

DE  HOMfNE  CAPTO  IN  WITHERNAM 
(Lat.  for  taking  a  man  in  withernam).  A 
writ  to  take  a  man  who  had  carried  away  a 
bondman  or  bondwoman  into  another  coun- 
try beyond  the  reach  of  a  writ  of  replevin. 
3  Bla.  Com.  129. 

DE  HOMINE  REPLEGIANDO  (Lat.  for 
replevying  a  man).  A  writ  which  lies  to 
replevy  a  man  out  of  prison,  or  out  of  the 
custody  of  a  private  person,  upon  giving  se- 
curity to  the  sheriff  that  the  man  shall  be 
forthcoming  to  answer  any  charge  against 
him.  Fitzh.  N.  B.  66;  3  Bla.  Com.  129.  If 
the  latter  eloigned  his  captive  he  could  be 
summarily  imprisoned  by  a  capias  in  wither- 
nam. It  was  inefficient  against  wrongful  im- 
prisonment because  it  excepted  the  party  if 
he  had  been  arrested  on  the  king's  order. 

The  statute — which  had  gone  nearly  out  of 
use,  having  been  superseded  by  the  writ  of 
habeas  corpus — has  been  revived  within  a 
tew  years  in  some  of  the  United  States  in  an 
amended  and  more  effectual  form.  It  can.be 
used  only  for  the  benefit  of  the  person  im- 
prisoned. 1  Kent  404,  n. ;  Hutchings  v.  Van 
Bokkelen,  34  Me.  126. 

See  Mainprize. 

A  case  is  mentioned  in  Jackson  &  Gross, 
Land.  &  Ten.  §  788,  where  this  writ  was  is- 
sued by  the  supreme  court  of  Pennsylvania 
while  the  writ  of  habeas  corpus  was  suspend- 
ed during  the  war  between  the  states. 

DE  IDIOTA  INQUIRENDO.  An  old  com- 
mon-law writ,  long  obsolete,  to  inquire 
whether  a  man  be  an  idiot  or  not.  2  Steph. 
Com.  509. 

DE     INCREMENTO     (Lat.    of    Increase). 

Costs  de  incremento,  costs  of  increase — that 
is,  which  the  court  assesses  in  addition  to 
the  damages  established  by  the  jury.  See 
Costs  oe  Incremento. 

DE  INJURIA  (Lat.  The  full  term  is,  de 
injuria  sua  propria  absque  tali  causa,  of  his 
own  wrong  without  such  cause;  or,  where 
part  of  the  plea  is  admitted,  absque  residua 
causa;,  without  the  rest  of  the  cause). 

In  Pleading.  The  replication  by  which  in 
an  action  of  tort  the  plaintiff  denies  the  ef- 
fect of  excuse  or  justification  offered  by 
the  defendant. 

It  can  only  be  used  where  the  defendant 
pleads  matter  merely  in  excuse  and  not  in 
justification  of  his  act.  It  is  confined  to 
those  instances  in  which  the  plea  neither 
denies  the  original  existence  of  the  right 
which  the  defendant  is  charged  with  having 


violated,  nor  alleges  that  it  has  been  released 
or  extinguished,  but  sets  up  some  new  mat- 
ter as  a  sufficient  excuse  or  cause  for  that 
which  would  otherwise  and  in  its  own  na- 
ture be  wrongful.  It  cannot,  therefore,  be 
properly  used  when  the  defendant 
leges  any  matter  in  the  nature  of  tit] 
terest,  authority,  or  matter  of  rect 

66;    1  B.  &  I*.  76;    Hyatt  v.   W 1.  4 

(X.  Y.)  159,  note,  4  Am.  Dec.  258;    G 
v.  Sedgwick,  1  Wend.   (N.  Y. |    126;    0; 
v.   Shed.   12  Mass.   506;    Ridgefield   Park  R. 
Co.  v.  Buckman,  38  N.  J.  L.  98;    Steph.  PL 
276;   Pepper,  PI.  35. 

The  English  aud  American  cases  are  at  va- 
•  as  to  what  constitutes  such  legal  au- 
thority as  cannot  be  replied  to  by  de  injuria. 
"f  the  American  cases  hold  that  this 
replication  is  had  whenever  the  defendant  in- 
sists upon  a  right,  no  matter  from  what 
source  it  may  be  derived;  and  this  seems  to 
be  the  more  consistent  doctrine. 

If  the  plea  in  any  sense  justifies  the  act, 
instead  of  merely  excusing  it,  de  injuria 
cannot  be  used:  Coburn  v.  Hopkins,  4  Wend. 
(N.  Y.)  577;  Stickle  v.  Richmond,  1  Hill  (N. 
Y.)  78;  Allen  v.  Scott,  13  111.  SO.  The  Eng- 
lish cases,  on  the  other  hand,  hold  that  an 
authority  derived  from  a  court  not  of  record 
may  be  traversed  by  the  replication  de  in- 
juria;  3  B.  &  Ad.  2. 

The  plaintiff  may  confess  that  portion  of 
a  plea  which  alleges  an  authority  in  law  or 
an  interest,  title,  or  matter  of  record,  and 
aver  that  the  defendant  did  the  act  in  ques- 
tion de  injuria  sua  propria  absque  residua 
causce,  of  his  own  wrong  without  the  residue 
of  the  cause  alleged;  Stickle  v.  Richmond.  1 
Hill  (N.  Y.)  78;  Curry  v.  Hoffman,  2  Am. 
Law  Reg.  246;   Steph.  PI.  276. 

The  replication  de  injuria  puts  in  issue  the 
whole  of  the  defence  contained  in  the  plea  ; 
and  evidence  is,  therefore,  admissible  to  dis- 
prove any  material  averment  in  the  whole 
plea;  McKelv.  Pi.  50;  8  Co.  66;  11  East 
451;  10  Bingh.  157;  Tubbs  v.  Caswell.  8 
Wend.  (N.  Y.)  129;  Erskine  v.  Hohnbach, 
14  Wall.  (U.  S.)  613,  20  L.  Ed.  715.  See  2 
Cr.  M.  &  R.  338.  In  England,  however,  by  a 
uniform  course  of  decisions  in  their  courts, 
evidence  is  not  admissible  under  the  replica- 
tion de  injuria  to  a  plea,  for  instance,  of 
moderate  COStigavit  or  molliter  manus  iin- 
posuit,  to  prove  that  an  excess  of  force  was 
used  by  the  defendant;  but  it  is  He© 
that  such  excess  should  he  specially  pleaded. 
There  must  be  a  new  assignment;  2  Cr.  If. 
&  R.  338;  1  Bingh.  317;  1  Biugh.  X.  C.  3S0; 
3  M.  &  W.  150. 

In  this  country,  on  the  other  hand,  thouirh 
some  of  the  earlier  cases  followed  the  Eng- 
lish doctrine,  later  cases  decide  that  the 
plaintiff  need  not  plead  specially  in  such  a 
case.  It  is  held  that  there  is  no  new  cause 
to  assign  when  the  act  complained  of  is  the 
same  that  is  attempted  to  be  justified  by 
plea.     Therefore  the  fact  of  the  act  being 


DE  INJURIA 


7G8 


DE  JURE 


moderate  is  a  part  of  the  plea,  and  is  one  of 
the  points  brought  in  issue  by  de  injuria; 
and  evidence  is  admissible  to  prove  an  ex- 
cess; Hannen  v.  Edes,  15  Mass.  351 ;  Ben- 
nett v.  Appleton,  25  Wend.  (N.  Y.)  371;  El- 
liot v.  Kilburn,  2  Vt.  474;  Bartlett  v.  Church- 
ill, 24  Vt.  218;  Vreeland  v.  Berry,  21  N.  J. 
L.  1S3. 

Though  a  direct  traverse  of  several  points 
going  to  make  up  a  single  defence  in  a  plea 
will  be  bad  for  duplicity,  yet  the  general  rep- 
lication de  injuria  cannot  be  objected  to 
on  this  ground,  although  putting  the  same 
number  of  points  in  issue ;  3  B.  &  Ad.  1 ; 
Marshall  v.  Aiken,  25  Vt.  330;  2  Bingh.  N. 
C.  579;  3  Tyrwh.  491.  Hence  this  mode  of 
replying  has  a  great  advantage  when  a  spe- 
cial plea  has  been  resorted  to,  since  it  en- 
ables the  plaintiff  to  traverse  all  the  facts 
contained  in  any  single  point,  instead  of  be- 
ing obliged  to  rest  his  cause  on  an  issue  join- 
ed on  one  fact  alone. 

In  England  it  is  held  that  de  injuria  may 
be  replied  in  assumpsit;    2  Bingh.  N.  C.  579. 

In  this  country  it  has  been  held  that  the 
use  of  de  injuria  isTimited  to  actions  of  tort ; 
Coffin  v.  Bassett,  2  Pick.  (Mass.)  357.  But 
in  New  Jersey  it  may  be  used  in  actions  ex 
contractu  wherever  a  special  plea  in  excuse 
of  the  alleged  breach  of  contract  can  be 
pleaded,  as  a  general  traverse  to  put  in  is- 
sue every  material  allegation  in  the  plea ; 
Ridgefield  Park  R.  Co.  v.  Ruckman,  38  N.  J. 
L.  98.  Whether  de  injuria  can  be  used  in  ac- 
tions of  replevin  seems,  even  in  England,  to 
be  a  disputed  question.  The  following  cases 
decide  that  it  may  be  so  used;  9  Bingh.  756; 
3  B.  &  Ad.  2;   contra,  1  Chit.  PL  622. 

The  improper  use  of  de  injuria  is  held 
to  be  only  a  ground  of  general  demurrer ;  6 
Dowl.  502 ;  but  see  3  M.  &  W.  230;  Coffin  v. 
Bassett,  2  Pick.  (Mass.)  357.  Where  it  is 
improperly  employed,  the  defect  will  be  cured 
by  a  verdict;  Lytle  v.  Lee,  5  Johns.  (N.  Y.) 
112;  Hob.  76;  IT.  Raym.  50.  See  Crogate's 
Case,  1  Sm.  Lead.  Cas.  247. 

DE  JUDAISMO,  STATUTUM.  The  name 
of  a  statute  passed  in  the  reign  of  Edward 
I.,  which  enacted  severe  penalties  against  the 
Jews.    Barringt.  Stat.  197. 

D  E  JURE.  Rightfully ;  of  right;  lawfully  ; 
by  legal  title.  Contrasted  with  de  facto 
(which  see).    4  Bla.  Com.  77. 

Of  right:  distinguished  from  de  gratia 
(by  favor).  By  law:  distinguished  from  de 
cequifate  (by  equity). 

The  term  is  variously  applied;  as,  a  king 
or  officer  de  jure,  or  a  wife  de  jure. 

A  government  de  jure,  but  not  de  facto, 
is  one  deemed  lawful,  which  has  been  sup- 
planted; a  government  de  jure  and  also  de 
facto  is  one  deemed  lawful,  which  is  present 
or  established ;  a  government  de  facto  is  one 
deemed  unlawful,  but  which  is  present  or 
established.  Any  established  government,  be 
it  deemed  lawful   or  not,  is   a   government 


de  facto.     Austin,  Jur.  sec.  vi.  336.     See  Db 
Facto. 

DE  LA  PLUS  BELLE  (Fr.  of  the  fairest). 
A  kind  of  dower;  so  called  because  assigned 
from  the  best  part  of  the  husband's  estate. 
It  was  connected  with  the  military  tenures, 
and  was  abolished,  with  them,  by  stat.  12 
Car.  II.  cap.  24.  Littleton  §  48 ;  2  Bla.  Com. 
132,  135 ;  Scrib.  Dower  18 ;  1  Washb.  R.  P. 
149,  n.  See  Dower.  In  Law  French,  de  la 
pluis  beale. 

DE  LIBERTATIBUS  ALLOCANDIS  (Lat. 
for  allowing  liberties).  A  writ,  of  various 
forms,  to  enable  a  citizen  to  recover  the  liber- 
ties to  which  he  was  entitled.  Fitzh.  N.  B. 
229;    Reg.  Orig.  262. 

DE  LUNATICO  INQUIRENDO  (Lat.  to  in- 
quire as  to  lunacy).  The  name  of  a  writ  di- 
rected to  the  sheriff,  directing  him  to  inquire 
by  good  and  lawful  men  whether  one  therein 
named  is  a  lunatic  or  not.  See  Hutchinson 
v.  Sandt,  4  Rawle  (Pa.)  234,  26  Am.  Dec. 
127;  Den  v.  Clark,  10  N.  J.  L.  217,  18  Am. 
Dec.  417;  Hart  v.  Deamer,  6  Wend.  (N.  Y.) 
497;  In  re  McAdams,  19  Hun  (N.  Y.)  292; 
In  re  Kings  County  Insane  Asylum,  7  Abb. 
N.  C.  (N.  Y.)  425;  In  re  Hill,  31  N.  J.  Eq. 
203. 

An  inquisition  in  lunacy  proceedings  must 
show  that  the  imbecility  of  the  mind  is  such 
as  to  render  the  imbecile  unfit  for  the  gov- 
ernment of  himself  and  his  property;  In  re 
Lindsley,  44  N.  J.  Eq.  564,  15  Atl.  1,  6  Am. 
St.  Rep.  913. 

The  English  practice  is  now  regulated  by  the 
Lunacy  Acts  (16  &  17  Vict,  c  70,  and  25  &  26  Vict.  c. 
86),  under  which  the  lord  chancellor,  upon  petition 
or  information,  grants  a  commission  in  the  nature 
of  this  writ;  2  Steph.  Com.  511.  In  the  U.  S.  the 
practice  ia  similar,  and  a  commission  of  lunacy 
is  appointed.  See  Ray's  Med.  Jur.  Ins. ;  Ordron. 
Jud.  Asp.  Ins.  225 ;  In  re  Staudermann,  3  Abb.  N. 
C.  (N.  Y.)  187. 

DE  MANUCAPTIONE  (Lat.  of  mainprize). 
A  writ,  now  obsolete,  directed  to  the  sheriff, 
commanding  him  to  take  sureties  for  the 
prisoner's  appearance, — usually  called  main- 
pernors— and  to  set  him  at  large.  Fitzh.  N. 
R  250;  1  Hale,  PI.  Cr.  141;  Coke,  Bail  d 
Mainp.  c.  10 ;  Reg.  Orig.  268  6.  According  to 
its  form,  it  was  only  available  for  persons  in- 
dicted for  larceny  before  the  sheriff  by  in- 
quest of  office. 

DE  MEDIETATE  LINGU/E.  A  jury  half 
aliens  and  half  natives.    See  Jury. 

DE  MEDIO  (Lat.  of  the  mesne).  A  writ 
in  the  nature  of  a  writ  of  right,  which  lies 
where  upon  a  subinfeudation  the  mesne  (or 
middle)  lord  suffers  his  under-tenant  or  ten- 
ant paravail  to  be  distrained  upon  by  the 
lord  paramount  for  the  rent  due  him  from 
the  mesne  lord. .  Booth,  Real  Act.  136 ;  Fitzh. 
N.  B.  135;   3  Bla.  Com.  234 ;    Co.  Litt.  100  a. 

DE  MELIORIBUS  DAMNIS  (Lat.).  Of 
the  better  damages.  When  a  plaintiff  hag 
sued  several  defendants,  and  the  damages 


DE  MELTORIBUS  DAMNT3 


700 


DE  ODIO  ET  ATIA 


have  been  assessed  severally  against  each,  he 
has  the  choice  of  selecting  the  best,  as  he 
cannot  recover  the  whole.  This  is  done  by 
making  an  election  de  meHoribwa  damnis. 

DE  MERCATORIBUS,  THE  STATUTE. 
The  statute  of  Acton  Burnell.     See   Acton 

Bl/RNELL. 

DE  MINIS.  Writ  of  threats.  A  writ 
which  lay  where  a  person  \v;is  threatened 
with  personal  violence,  or  the  destruction  of 
his  property,  to  compel  the  offender  to  keep 
the  peace.  Reg.  Orig.  88  B.  89;  Fitzh.  Nat 
Brev.  79,  G.  80;   Black,  L  Diet. 

DE  MODO  DECIMANDI  (Lat.  of  a  man- 
ner of  taking  tithes  |. 

A  prescriptive  manner  of  taking  tithes,  dif- 
ferent from  the  general  law  of  taking  tithes 
in  kind.  It  is  usually  by  a  compensation 
either  in  work  or  labor,  and  is  generally  call- 
ed a  modus;  Cro.  Eli/..  446;  2  P.  Wms.  462; 
2  Russ.  &  M.  101':  4  Y.  &  C,  269,  283;  2  Bla. 
Com.  29;   3  Steph.  Com.  130. 

DE  NATURA  BREVIUM  (Lat).  Concern- 
ing the  Nature  of  Writs.  The  title  of  more 
than  one  text-book  of  English  Mediaeval  law. 
Maitland,  2  Sel.  Essays  in  Anglo-Amer.  Leg. 
Hist.  H49.    See  Register  of  Writs. 

DE  NON  DEC  I  MAN  DO  (Lat.  of  not  tak- 
ing tithes).  An  exemption  by  custom  from 
paying  tithes  is  said  to  be  a  prescription  de 
non  deoimando.  A  claim  to  be  entirely  dis- 
charged of  the  payment  of  tithes,  and  to  pay 
no  compensation  in  lieu  of  them.  Cro.  Eliz. 
511;    3  Bla.  Com.  31. 

DE  NOVI  OPERIS  NUNCIATIONE  (Lat.). 
In  Civil  Law.  A  form  of  injunction  or  inter- 
dict which  lies  in  some  cases  for  the  party 
aggrieved,  where  a  thing  is  intended  to  be 
done  against  his  right.  Thus,  where  one 
buildeth  a  house  contrary  to  the  usual  and 
received  form  of  building,  to  the  injury  of 
his  neighbor,  there  lieth  such  an  injunction, 
which  being  served,  the  offender  is  either  to 
desist  from  his  work  or  to  put  in  sureties 
that  he  shall  pull  it  down  if  he  do  not  in  a 
short  time  avow,  i.  c.  show,  the  lawfulness 
thereof.  Ridley,  Civ.  &  Eccl.  Law,  pt.  1,  c. 
1,  S. 

DE  NOVO  (Lat.).  Anew;  afresh.  When 
a  judgment  upon  an  issue  in  part  is  reversed 
on  error  for  some  mistake  made  by  the  court 
in  the  course  of  the  trial,  a  venire  de  novo 
is  awarded,  in  order  that  the  case  may  again 
be  submitted  to  a  jury. 

DE  ODIO  ET  ATIA  (Lat  of  hatred  and  ill 
will).  A  writ  directed  to  the  sheriff,  com- 
manding him  to  inquire  whether  a  person 
charged  with  murder  was  committed  upon 
just  cause  of  suspicion,  or  merely  propter 
odium  et  atiam;  and  if  upon  the  inquisition 
due  cause  of  suspicion  did  not  appear,  then 
there  issued  another  writ  for  the  sheriff  to 
admit  him  to  bail.  3  Bla.  Com.  128.  "A  writ 
for  one  who  says  he  is  imprisoned  on  a  false 
Bouv.— 49 


accusation  of  crime."  Maitland.  in  2  SeL  Es- 
says in  Anglo-Amer.  Leg.  Blst  :- 

This  was  one  of  the  many  safeguards  by 
which   the   English   law  early  endeavor 
protect  the  innocent  against  the  oppression  of 
the  powerful  through  a  misuse  of 
The  writ  was  to  issue  of  course  to  any  one, 
without  denial,  and  gratis.     Bracton,  1.  :'.,  tr. 
2,  ch.  8:    Magna  Carta,  c.  26;    Stat   v 
2  (13  Edw.  I.),  c.  29.     It  has  now  pa  jsed  out 
of  use.    3  Bla.  Com.  129.     It  was  - 
by  habeas  corpus.    See  Assize;    FT  abbas  Cor- 
pus. 

DE  PARCO  FRACTO  (Lat.  of  pound- 
breach). A  writ  which  lay  where  cattle 
taken  in  distress  were  rescued  by  their  owner 
after  being  actually  Impounded.  Fitzh.  X.  B. 
100;  3  Bla.  Com.  146;  Reg.  Orig.  11G6;  Co. 
Litt.  47  h. 

DE  PARTITIONE  FACIENDA  (Lat.  for 
making  partition).  The  ancient  writ  for  the 
partition  of  lands  held  by  tenants  in  com- 
mon. 

DE  PERAMBULATONE  FACIENDA  (Lat 
for  making  a  perambulation).  A  writ  which 
lay  where  there  was  a  dispute  as  to  the 
boundaries  of  two  adjacent  lordships  or 
towns,  directed  to  the  sheriff,  commanding 
him  to  take  with  him  twelve  discreet  and 
lawful  knights  of  his  county  and  make  the 
perambulation  and  set  the  bounds  and  limits 
in  certainty.  Fitzh.  N.  B.  309,  D.  A  similar 
provision  existed  in  regard  to  town-lines  in 
Connecticut.  Maine.  Massachusetts,  and  New 
Hampshire,  by  statute.    See  Perambulation. 

DE  PLEGIIS  ACQUIETANDIS  (Lat.  for 
clearing  pledges).  A  writ  which  lay  where 
one  had  become  surety  for  another  to  pay  a 
sum  of  money  at  a  specified  day.  and  the 
principal  failed  to  pay  it  If  the  surety  was 
obliged  to  pay,  he  was  entitled  to  this  writ 
against  his  principal.  Fitzh.  X.  B.  37  C ;  3 
Reeve,  Hist  Eng.  Law  Go. 

DE  PR/EROGATIVA  REGIS  (Lat.  of  the 
king's  prerogative).  The  statute  17  Edw.  I. 
st.  1,  a  9,  defining  the  prerogatives  of  the 
crown  on  certain  subjects,  but  especially  di- 
recting that  the  king  shall  have  ward  of  the 
lands  of  idiots,  taking  the  pro  tits  without 
waste  and  finding  them  necessaries.  2  Steph. 
Com.  509. 

DE     PROCEDENDO     AD     JUDICIUM.       A 

writ  proceeding  out  of  chancery  and  order- 
ing the  judges  of  any  court  to  proceed  to 
judgment    3  Bla.  Com.  109. 

DE  PROPRIETATE  PROBANDA  (Lat 
for  proving  property).  A  writ  which  issues 
in  a  case  of  replevin,  when  the  defendant 
claims  property  in  the  chattels  replevied  and 
the  sheriff  makes  a  return  accordingly.  The 
writ  directs  the  sheriff  to  summon  an  inquest 
to  determine  on  the  validity  of  the  claim  ; 
and,  if  they  Bnd  for  the  defendant,  the  sher- 
iff merely  returns  their  findirrg.     The  plain- 


DE  PROPRIETATE  PROBANDA         770- 


DE  RETORNO  HABENDO 


tiff  is  not  concluded  by  such  finding ;  he  may 
come  into  the  court  and  traverse  it.  Hanim. 
N.  P.  450. 

This  writ  has  been  superseded  in  England 
by  the  "summons  to  interplead  ;"  in  Penn- 
sylvania and  Delaware  the  "claim  property 
bond"  is  a  convenient  substitute  for  the  old 
practice,  and  similar  to  this  is  the  practice 
under  the  New  York  Code.     Morr.  Repl.  304. 

It  was  pointed  out  in  Weaver  v.  Lawrence, 
1  Dall.  (U.  S.)  156,  1  L.  Ed.  79,  that  in  Eng- 
land there  were  two  kinds  of  replevin — when 
the  writ  issued  out  of  chancery,  and  under 
the  statute  of  Marl  bridge,  which  enabled  the 
sheriff  to  replevin  without  a  writ;  in  the 
latter  case  the  writ  de  proprictate  probanda 
issued  at  once  on  claim  of  property  being 
presented  and  was  tried  by  inquest;  if  the 
finding  was  for  defendant,  the  sheriff  forbore. 

In  replevin  at  common  law  the  writ  de 
proprietate  probanda  did  not  issue  until  aft- 
er return  on  a  plurics  writ  of  replevin  and 
the  finding  on  it  for  defendant,  being  only  an 
inquest  of  office,  did  not  prevent  a  new  re- 
plevin. 

DE    QUOTA    LITIS    (Lat).     In    Civil    Law. 

A  contract  by  which  one  who  has  a  claim 
difficult  to  recover  agrees  with  another  to 
give  a  part,  for  the  purpose  of  obtaining  his 
services  to  recover  the  rest.  1  Duval,  n.  201. 
See  Champertv. 

DE  RATIQNABILI  PARTE  BONORUM 

(Lat.  of  a  reasonable  part  of  the  goods).  A 
writ,  long  since  obsolete,  to  enable  the  widow 
and  children  of  a  decedent  to  recover  their 
proper  shares  of  his  personal  estate.  2  Bla. 
Com.  492.  The  writ  is  said  to  be  founded  on 
the  customs  of  the  counties,  and  not  on  the 
common-law  allowance.  Fitzh.  N.  B.  122,  L. 
See  Custom  of  London. 

DE  RATIONABILIBUS  DIVISIS  (Lat  for 
reasonable  boundaries).  A  writ  which  lies  to 
determine  the  boundaries  between  the  lands 
of  two  proprietors  which  lie  in  different 
towns.  The  writ  is  to  be  brought  by  one 
against  the  other.  Fitzh.  N.  B.  128,  M;  3 
Reeve,  Hist.  Eng.  Law  48. 

DE  RECTO  DE  ADVOCATIONE  (Lat.  of 
right  of  advowson;  called,  also,  Ze  droit  de 
advocatione) .  A  writ  which  lay  to  restore 
the  right  of  presentation  to  a  benefice,  for 
him  who  had  an  advowson,  to  himself  and 
heirs  in  fee  simple,  if  he  was  disturbed  in 
the  presentation.  Year  B.  39  Hen.  VI.  20  a; 
Fitzh.  N.  B.  30,  D. 

DE  REPARATIONE  FACIENDA  (Lat). 
The  name  of  a  writ  which  lies  by  one  ten- 
ant in  common  against  the  other,  to  cause 
him  to  aid  in  repairing  the  common  prop- 
erty.   8  B.  &  C.  269. 

DE  RETORNO  HABENDO  (Lat).  The 
name  of  a  writ  issued  after  a  judgment  has 
been  given  in  replevin  that  the  defendant 
should  have  a,  return  of  the  goods  replevied. 

The  judgment  for   defendant  at  common 


law  is  pro  retorno  habcndo.  Plaintiff's 
pledges  are  also  so  called.  See  Morr.  Repl. ; 
Replevin. 

DE  SALVA  GUARDIA  (Lat.  of  safeguard). 
A  writ  to  protect  the  persons  of  strangers 
seeking  their  rights  in  English  courts.  Reg. 
Orig.  26. 

DE  SCUTAGIO  HABENDO  (Lat  of  hav- 
ing scutage).  A  writ  which  lay  in  case  a 
man  held  lands  of  the  king  by  knight's  serv- 
ice, to  which  homage,  fealty,  and  escuage 
were  appendant,  to  recover  the  services  or 
fee  due  in  case  the  knight  failed  to  accom- 
pany the  king  to  the  war.  It  lay  also  for 
the  tenant  in  capite,  who  had  paid  his  fee, 
against  his  tenants.     Fitzh.  N.  B.  83,  C. 

DE  SECTA  AD  MO  LEN  D  I  N  U  M  (Lat.  of 
suit  to  a  mill).  A  writ  which  lieth  to  com- 
pel one  to  continue  his  custom  of  grinding 
at  a  mill.  3  Bla.  Com.  235;  Fitzh.  N.  B.  122, 
M;   2  Reeve,  Hist.  Eng.  Law  55. 

DE  SON  TORT  (Fr.).  Of  his  own  wrong. 
This  term  is  usually  applied  to  a  person  who, 
having  no  right  to  meddle  with  the  affairs 
or  estate  of  a  deceased  person,  yet  under- 
takes to  do  so,  by  acting  as  executor  of  the 
deceased.  See  Executors  and  Administra- 
tors. 

DE  SON  TORT  DEMESNE  (Fr.).  Of  his 
own  wrong.     See  De  Injuria. 

DE       SUPERONERATIONE        PASTUR/E 

(Lat  of  surcharge  of  pasture).  A  writ  lying 
where  one  who  had  been  previously  implead- 
ed in  the  county  court  was  again  impleaded 
in  the  same  court  for  surcharging  common 
of  pasture,  and  the  cause  was  removed  to 
Westminster  Hall.    Reg.  Jur.  36  6. 

DE      TALLAGIO       NON       CONCEDENDO 

(Lat.  of  not  allowing  talliage).  The  name 
given  to  the  statutes  25  and  34  Edw.  L,  re- 
stricting the  power  of  the  king  to  grant  talli- 
age. Co.  2d  Inst.  532;  2  Reeve,  Hist.  Eng. 
Law  104.     See  Talliage. 

DE  UNA  PARTE  (Lat).  A  deed  de  una 
parte  is  one  where  only  one  party  grants, 
gives,  or  binds  himself  to  do  a  thing  to  an- 
other. It  differs  from  a  deed  inter  partes 
(a.  v.).    See  Deed  Poll. 

DE  UXORE  RAPTA  ET  ABDUCTA  (Lat 
of  a  wife  ravished  and  carried  away).  A 
kind  of  writ  of  trespass.  Fitzh.  N.  B.  89,  O ; 
3  Bla.  Com.  139. 

DE  VENTRE  INSPICIENDO  (Lat.  of  in- 
specting the  womb).  A  writ 'to  inspect  the 
body  where  a  woman  feigns  to  be  pregnant, 
to  see  wliether  she  is  with  child.  It  lies  for 
the  heir  presumptive  to  examine  a  widow 
suspected  to  be  feigning  pregnancy  in  order 
to  enable  a  supposititious  heir  to  obtain  the 
estate.  1  Bla.  Com.  456 ;  2  Steph.  Com.  287 ; 
Cro.  Eliz.  556;  Cro.  Jac.  685;  2  P.  Wms.  693; 
21  Viner,  Abr.  547.  There  was  a  like  proce- 
dure in  Rome  in  cases  of  divorce;  Voet.  Com. 
25,  42. 


DE  VENTRE  INSPICIENDO 


771 


DEAD  BODY 


A  jury  of  12  matrons  was  Impanelled  to 
decide  whether  she  was  quick  with  child ;  if 
so  found,  sentence  was  suspended;  Archb. 
Cr.  IT.  23d  ed.  229. 

It  lay  also  where  a  woman  sentenced  to 
death  pleaded  pregnancy';    4  Bla.  Com. 
This   writ  has   been   recognized  in  America; 

2  Chandl.  Am.  Cr.  Tr.  3S1. 

DE  VICINETO  (Lar.  from  the  neighbor- 
hood). The  sheriff  was  anciently  directed 
in  some  cases  to  summon  a  jury  de  violin  to; 

3  Bla.  Com.  360. 

DE  WARRANTIA  CHART/E  (Lat  of  war- 
ranty of  charter).  This  writ  lieth  properly 
where  a  man  doth  enfeoff  another  by  deed 
and  bindeth  himself  and  heirs  to  warranty. 
Now,  if  the  defendant  be  impleaded  in  an 
assize,  or  in  a  writ  of  entry  in  the  nature 
of  an  assize,  in  which  actions  he  can  nut 
vouch,  then  he  shall  have  the  writ  af 
the  feoffor  or  his  heirs  who  made  such  war- 
ranty; Fitzh.  N.  B.  134,  D;  Cowell;  Tonus 
de  la  Ley;  3  Reeve,  Hist.  Eng.  Law  55. 
Abolished  by  3  &  4  Will.  IV.  c.  27. 

DE  WARRANTIA  D I  El.  A  writ  which 
lay  for  a  party  in  the  service  of  the  king 
who  was  required  to  appear  in  person  on  a 
certain  day,  commanding  the  justices  not 
to  record  his  default,  the  king  certifying  to 
the  fact  of  such  service.     Fitzh.  N.  B.  36. 

DEACON.  The  lowest  degree  of  holy  or- 
ders in  the  Church  of  England.  2  Steph. 
Com.   660. 

DEAD    BODY.     A  corpse. 

There  is  no  right  of  property,  in  the  or- 
dinary sense  of  the  word,  in  a  dead  human 
body;  Co.  Inst.  202;  4  Bla.  Com.  235;  Meagh- 
er v.  Driscoll,  99  Mass.  281,  96  Am.  Dec. 
759;  Pierce  v.  Proprietors  of  Swan  Point 
Cemetery,  10  R.  I.  227,  14  Am.  Rep.  667;  3 
Edw.  Ch.  155;  5  W.  R,  318;  2  Wins,  on  Ex., 
7th  Am.  ed.  165  n. ;  but  there  are  rights  at- 
tached to  it  which  the  law  will  protect;  10 
Cent.  L.  J.  304;  and  for  the  health  and  pro- 
tection of  society,  it  is  a  rule  of  the  common 
law,  and  this  has  been  confirmed  by  statutes 
in  civilized  states  and  countries,  that  public 
duties  are  imposed  upon  public  officers,  and 
private  duties  upon  the  husband  or  wife  and 
the  next  of  kin  of  the  deceased,  to  protect 
the  body  from  violation  and  see  that  it  is 
properly  interred,  and  to  protect  it  after  it  is 
interred ;  1  Witthaus  &  Becker's  Med.  Jur. 
'JUT. 

It  has  been  suggested  that  the  right  of 
the  living  in  their  dead  might  be  Classified 
with  those  rights,  which  arise  out  of  tile 
family  relation;  5  Harv.  L.  Rev.  285;  13  id. 
63 ;  Larson  v.  Chase,  47  Minn.  307,  50  N.  W. 
238,  14  L.  R.  A.  85,  28  Am.  St.  Rep.  370. 
In  Pierce  v.  Proprietors  of  .Swan  Point  Cem- 
etery, 10  R.  I.  227,  14  Am.  Pep.  667,  it  is 
said  there  is  a  quasi  property  right.  The 
clear  legal  right  of  exemptiou  from  wrong- 
ful acts  is  in  itself  the  property.     An  in- 


jury to  such  right  nc.d  not  include  an  injury 
to  physical  property,  or  to  person  or  to 
character,  but  is  of  itself  sufficient  to  sup- 
port an  action;  Koerber  v.  i  Wis. 
453,  L02  X.  W.  40,  68  I.  K. 
tors  have  a  right  to  possession  of  it  and  it 
is  their  duty  to  bury  it;  2  Wins,  on  Ex.  Tth 
Am.  ed.  165;  Hapgood  v.  Houghton,  10  Pick. 
(.Mass.)  154;  Wynkoop  v.  Wynkoop, 
293,  82  Am.  Dec.  506;  but  this  case  is  re- 
ferred to  in  a  subsequent  one  in  tin.-  same 
court  as  not  deciding  what  is  stated  in  the 
syllabus,  which  is  characterized  a 
too  broad  and  as  an  improvident  generaliza- 
tion"; Pettigrew  v.  Pettigrew,  207  Pa,  313, 
56  Atl.  878,  04  L.  R.  A.  179,  09  Am.  St.  Rep. 
70.1 

The  right  of  the  widow  to  control  the 
place  of  burial  is  also  sustained  in 
cases;  O'Donnell  v.  Slack,  is;  CaL  2 
Pac.  one.  43  L.  R,  a.  388;  Buchanan  v.  Bu- 
chanan, 28  Misc.  Rep.  261,  ■"■'•'  N.  Y.  Supp. 
810,  which,  while  recognizing  the  right  of 
the  widow,  held  that  she  could  uot  maintain 
replevin  for  the  body  agi  Lnst  one  who  had 
caused  it  to  be  properly  buried;  and  where 
the  decedent  did  not  in  his  lifetime  live  with 
his  wife  and  there  was  no  executor  or  ad- 
ministrator, the  sister  was  held  entitled  to 
control  the  burial.  It  was  also  held  in 
Louisville  &  X.  R.  Co.  v.  Wilson,  123  G 
51  S.  E.  24,  :;  Ann.  (as.  128,  that  the  widow 
has  an  interest  in  the  unburied  bod;  of  her 
deceased  husband  which  the  courts  will  rec- 
ognize. The  right  to  make  testamentary  di- 
rection concerning  the  disposal  of  the  body 
has  been  conferred  by  statute  in  several 
states;  e.  g.  New  York,  Maine,  Oklahoma, 
and  Minnesota.  The  question  of  the  rL 
disposal  of  the  body  is  ably  discuss*  d  by 
Mr.  R.  S.  Guernsey  in  10  Cent.  L.  .1.  303, 
325,  and  he  concludes  upon  the  authorities 
that  in  the  absence  of  testamentary  dJ 
tion  the  right  and  duty  of  burial  devolves 
upon  relatives  "as  follows:  1.  Husband  or 
wife.  2.  Children.  3.  If  none — (1)  Father. 
(2)  Mother.  4.  Brothers  and  sisters.  5.  Next 
of  kin  according  to  the  course  of  the  com- 
mon law,  according  to  the  law  of  descent  of 
personal  property;"  id.  .">27.  Probably  the 
rule  may  be  fairly  stated  that  there  being 
no    husband    or    wife    of    the  I.    the 

nearest  of  kin  in  order  of  right  to  adminis- 
tration is  chargeQ  with  the  duty  of  burial. 
And  to  the  same  effect  it  is  said:  First,  the 
paramount  right  is  in  the  surviving  busband 
or  widow,  and  if  the  parties  were  living  in 
the  normal  relations  of  marriage,  it  will  re- 
quire a  very  strong  case  to  justify  a  court 
in  interfering  with  the  wishes  of  the  surviv- 
or. Secondly,  if  there  is  no  surviving  hus- 
band or  wife,  the  right  is  in  the  next  of  kin 
in  the  order  of  their  relation  to  the  decedent, 
as,  children  of  a  proper  age,  parents,  broth- 
ers and  sisters,  or  more  distant  kin,  modi- 
fied, it  may  be.  by  circumstances  of  special 
intimacy   or  association   with   the   decedent 


DEAD  BODY 


772 


DEAD  BODY 


Thirdly,  how  far  the  desires  of  the  decedent 
should  prevail  against  those  of  a  surviving 
husband  or  wife  is  an  open  question,  but  as 
against  remoter  connections,  such  wishes,  es- 
pecially if  strongly  and  recently  expressed, 
should  usually  prevail.  Fourthly,  with  re- 
gard to  a  re-interment  in  a  different  place, 
tbe  same  rules  should  apply,  but  with  a  pre- 
sumption against  removal  growing  stronger 
with  the  remoteness  of  connection  with  the 
decedent  and  reserving  always  the  right  of 
the  court  to  require  reasonable  cause  to  be 
shown  for  it;  Pettigrew  v.  Pettigrew,  207 
Pa.  313,  56  Atl.  87S,  64  L.  R.  A.  179,  99  Am. 
St.  Rep.  795. 

Where  a  deceased  person  had  not  lived 
with  his  wife  and  there  was  no  executor  or 
administrator,  his  sister  was  permitted  to. 
control  his  burial ;  Kitchen  v.  Wilkinson,  26 
Pa.  Super.  Ct  75. 

The  leaving  unburied  the  corpse  of  a  per- 
son for  whom  the  defendant  is  bound  to  pro- 
vide Christian  burial,  as  a  wife  or  child,  is 
an  indictable  misdemeanor,  if  he  is  shown 
to  have  been  of  ability  to  provide  such 
burial ;  2  Den.  C.  C.  325 ;  or  preventing  a 
dead  body  from  being  buried ;  2  Term  734 ; 
4  East  460 ;  1  Russ.  Cr.  415,  n. ;  or  interring 
one  found  in  a  river  without  first  sending 
for  the  coroner ;  1  Ld.  Ken.  250 ;  or  to  cast 
one  into  a  river;  Kana van's  Case,  1  Greenl. 
(Me.)  226.  And  every  householder  in  whose 
house  a  dead  body  lies  is  bound  by  the  com- 
mon law,  if  he  has  the  means  to  do  so,  to 
inter  the  body  decently ;  and  this  principle 
applies  where  a  person  dies  in  the  house  of 
a  parish  or  a  union ;  12  A.  &  E.  773.  The 
expense  for  such  burial  may  be  paid  out 
of  the  effects  of  deceased;  3  Camp.  298. 

It  is  the  duty  of  the  coroner  after  death 
by  violence  to  cause  an  autopsy  to  be  made ; 
the  surgeon  who  makes  it  can  recover  from 
the  county  for  his  labor;  Allegheny  County 
v.  Shaw,  34  Pa.  301;  Board  of  Com'rs  of 
Bartholomew  County  v.  Jameson,  86  Ind. 
154.  If  the  work  be  done  with  ordinary 
care,  he  is  not  liable  to  the  family  for  a 
mutilation  of  the  body,  even  though  acting 
without  their  consent;  Young  v.  College  of 
Physicians  &  Surgeons,  81  Md.  358,  32  Atl. 
177,  31  L.  R.  A.  540 ;  and  though  he  removes 
and  keeps  in  his  possession  by  direction  of 
the  coroner,  portions  of  the  body ;  Palmer 
v.  Broder,  78  Wis.  4S3,  47  "ft.  W.  744.  Where 
a  rule  of  a  board  of  health  requires  a  cer- 
tificate as  to  the  cause  of  death  before  is- 
suing a  burial  permit,  an  attending  physi- 
cian is  not  liable  for  performing  an  autopsy 
without  the  family's  consent;  Meyers  v. 
Clarke,  122  Ky.  866,  90  S.  W.  1049,  93  S. 
W.  43,  5  L.  R,  A.  (N.  S.)  727;  so  where  a 
mere  incision  was  made  to  ascertain  the 
cause  of  death,  as  authorized  by  the  board 
of  health  and  a  city  ordinance ;  Rushing  v. 
Medical  College,  4  Ga.  App.  823,  62  S.  E.  563. 

The  purchaser  of  land  upon  which  is  lo- 
cated a  burial  ground  may  be  enjoined  from 


removing  bodies  therefrom  against  the  wish- 
es of  the  relatives  or  next  of  kin  of  the  de- 
ceased. Every  interment  is  a  concession 
of  the  privilege  which  cannot  afterward  be 
repudiated,  and  the  purchaser's  title  to  the 
ground  is  fettered  with  the  right  of  burial; 
First  Presbyterian  Church  v.  Church,  2 
Brewster  (Pa.)  372.  But  the  right  of  mu- 
nicipal or  state  authorities,  with  the  consent 
of  the  owner  of  the  burial  lot  or  in  the  ex- 
ecution of  eminent  domain,  to  remove  dead 
bodies  from  cemeteries  is  well  settled ;  Craig 
v.  Church,  SS  Pa.  42,  32  Am.  Rep.  417 ;  Ham- 
ilton v.  City  of  New  Albany,  30  Ind.  482; 
Page  v.  Symonds,  63  N.  H.  17,  56  Am.  Rep. 
481. 

The  law  of  Indiana  (2  R.  S.  p.  473)  pro- 
hibits the  removal  of  a  dead  body  without 
the  consent  of  a  near  relative  or  of  the  de- 
ceased in  his  lifetime.  It  is  held  there  that 
the  bodies  of  the  dead  belong  to  the  surviv- 
ing relations  in  the  order  of  inheritance,  as 
property;  Bogert  v.  Indianapolis,  13  Ind. 
134.  The  laws  of  Louisiana,  California,  Con- 
necticut, Vermont,  and  Ohio,  recognize  the 
interest  of  the  relatives  of  a  deceased  person 
in  his  body. 

In  4  Bradf.  Sur.  (N.  Y.)  502,  a  learned  re- 
port by  S.  B.  Ruggles  lays  down  these  con- 
clusions, substantially: 

1.  Neither  a  corpse  nor  its  burial  is  sub- 
ject to  ecclesiastical  cognizance. 

2.  The  right  to  bury  a  corpse  and  pre- 
serve it  is  a  legal  right. 

3.  Such  right,  in  the  absence  of  testamen- 
tary disposition,  is  in  the  next  of  kin  (so  in 
Bogert  v.  Indianapolis,  13  Ind.  138). 

4.  The  right  to  protect  the  corpse  includes 
the  right  to  preserve  it  by  burial,  to  select 
the  place  of  sepulture,  and  to  change  it  at 
pleasure. 

5.  If  the  burial-place  be  taken  for  public 
use,  the  next  of  kin  must  be  indemnified  for 
removal  and  reinterring,  etc.  Approved  by 
the  Sup.  Ct.  N.  Y.  (1856). 

The  exhumation  of  the  body  of  the  deceas- 
ed should  be  ordered,  if  at  all,  only  on  a 
strong  showing  that,  without  its  examina- 
tion, a  fraud  is  likely  to  be  accomplished,  as 
where  an  insurance  company  has  exhausted 
every  other  legal  means  of  exposing  a  fraud ; 
Grangers'  Life  Ins.  Co.  v.  Brown,  57  Miss. 
308,  34  Am.  Rep.  446.  But  the  right  of  in- 
terment and  the  right  to  disinter  are  subor- 
dinate to  public  health,  and  disinterment 
may  be  compelled  by  public  authorities 
whenever  conditions  become  such  as  that  the 
public  health  is  threatened ;  or  where  an 
examination  may  disclose  facts  which  prove 
an  accused  person  innocent  of  a  crime ;  Gray 
v.  State,  55  Tex.  Cr.  R.  90,  114  S.  W.  635,  22 
L.  R.  A.  (N.  S.)  513. 

In  a  murder  trial,  the  court  may,  at  the 
prisoner's  instance,  order  an  exhumation 
and  autopsy,  if  in  the  interest  of  justice; 
Gray  v.  State,  55  Tex.  Cr.  R.  90,  114  S.  W. 
635,  22  L.  R.  A.  (N.  S.)  513;  such  order  was 


DEAD  BODY 


773 


DEAD  BODY 


refused  in  Moss  v.  State,  152  Ala.  30,  44 
South.  5b8,  because  it  appeared  that  two 
reputable  physicians,  available  at  the  trial, 
had  examined  the  body  before  burial.  There 
is  said  to  be  no  law  requiring  a  court,  at 
the  prisoner's  request,  but  at  the  expense 
of  the  state,  to  order  exhumation;  Salisbury 
v.  Com.,  79  Ky.  425.  In  Com.  v.  Gretber, 
201  Pa.  203,  53  Atl.  753,  the  court  refused 
to  set  aside  a  conviction  of  murder  in  the 
first  degree  because  the  district  attorney  and 
not  the  coroner  had  caused  the  body  to  be 
exhumed.  In  an  insurance  case,  exhuma- 
tion was  ordered  to  obtain  evidence  bearing 
on  the  question  of  suicide;  the  marshal  was 
directed  to  exhume  the  body  and  the  court 
appointed  a  pathologist  and  a  chemist  to 
make  the  examination;  it  was  held  also  that 
such  order  could  only  be  made  in  a  case 
where  the  widow  was  a  party;  Mutual  Life 
Ins.  Co.  of  New  York  v.  Griesa,  156  Fed. 
398.  The  right  to  make  the  order  in  an  in- 
surance case  was  recognized  in  People  v. 
Fitzgerald,  105  N.  Y.  146,  11  N.  E.  378,  59 
Am.  Rep.  4S3;  Grangers'  Ins.  Co.  v.  Brown, 
57  Miss.  308,  34  Am.  Rep.  446;  but  in  the 
latter  case  the  order  was  refused  on  the 
ground  of  delay;  see  Gray  v.  State,  55  Tex. 
Cr.  R.  90,  114  S.  W.  635,  22  L.  R.  A.  (N.  S.) 
513. 

To  disinter  a  dead  body,  without  lawful 
authority,  even  for  the  purpose  of  dissec- 
tion, is  a  misdemeanor,  for  which  the  of- 
fender may  be  indicted  at  common  law ; 
1  D.  &  R.  13;  State  v.  McClure,  1  Blackf. 
(Ind.)  328;  Com.  v.  Slack,  19  Pick.  (Mass.) 
304;  Kanavan's  Case,  1  Greenl.  (Me.)  226. 
This  offence  is  punished  by  statute  in  most 
of  the  states:  see  1  Russ.  414,  n.  A ;  as  is 
its  unauthorized  sale  for  gain  and  profit; 
Thompson  v.  State,  105  Tenn.  177,  58  S.  W, 
213,  51  L.  R.  A.  8S3,  80  Am.  St.  Rep.  S75. 
To  seize  a  dead  body  on  pretence  of  arrest- 
ing for  debt  is  contra  bonos  mores;  4  East 
460.  There  can  be  no  larceny  of  a  dead 
body;  2  East,  PL  Cr.  652;  12  Co.  106;  but 
may  be  of  the  clothes  or  shroud  upon  it ; 
Wonson  v.  Say  ward,  13  Pick.  (Mass.)  402, 
23  Am.  Dec.  691;  12  Co.  113;  Co.  3d  Inst. 
110;  Kanavan's  Case,  1  Greenl.  (Me.)  226; 
State  v.  Doepke,  68  Mo.  208,  30  Am.  Rep.  785. 

After  the  right  of  burial  has  once  been 
exercised  by  the  person  charged  with  the 
duty  of  burial,  or  where  such  person  has 
consented  to  the  burial  by  another  person, 
no  right  to  the  corpse  remains  except  to 
protect  it  from  unlawful  interference;  Peters 
v.  Peters.  43  N.  J.  Eq.  140,  10  Atl.  742 ;  Low- 
rie  v.  Plitt,  11  Phila.  (Pa.)  303;  10  B.  &  S. 
29S.  But  see  Weld  v.  Walker,  1.30  Mass. 
422.  39  Am.  Rep.  465.  It  has  been  held 
that  it  then  becomes  a  part  of  the  ground  to 
which  it  has  been  committed;  Meagher  v. 
Driscoll,  9!)  Mass.  281,  96  Am.  Dec.  759; 
Wilson  v.  Read,  74  N.  H.  322,  68  Atl.  37,  16 
L.  R.  A.  (X.  S.)  332,  124  Am.  St.  Hep.  973  : 
contra,  Cohen  v.  Congregation  Shearith   Is- 


rael In  City  of  New  York,  85  App.  Div.  65, 
82  N.  Y.  Supp.  91S.  In  England,  where  a 
son  had  removed,  without  leave,  the  body 
of  his  mother  from  the  burial  ground  of  a 
congregation  of  Protestant  dissentei 
bury  it  in  church  ground,  it  was  held  that 
he  was  guilty  of  a  misdemeanor  at  common 
law,  and  that  it  was  no  defence  that  his 
motives  were  pious  and  laudable;  1  D 
&  B.  160,  7  Cox  C.  C.  214. 

A  widow  who  allows  her  husband  to  be 
buried  in  a  certain  place  may  not  disturb 
his  remains;  her  right  to  the  body  of  her 
deceased  husband  being  terminated  by  the 
burial,  and  any  further  disposition  of  such 
body  belonging  thereafter  exclusively  to  his 
next  of  kin;  Wynkoop  v.  Wynkoop,  42  Pa, 
293,  82  Am.  Dec.  506;  but  see  a  criticism  of 
that  case  supra.  Where  one  in  accord- 
ance with  his  own  wishes  was  buried  in  his 
own  lot  by  his  widow,  and  she  removed  his 
remains,  she  was  ordered,  in  equity  to  re- 
store them ;  Pierce  v.  Proprietors  of  Swan 
Point  Cemetery,  10  R.  I.  227,  14  Am.  Rep. 
672,  and  note.  A  son  is  not  allowed  to  re- 
move his  Cathi  r's  remains  against  his  moth- 
er's wishes;  Johnston  v.  Marinus,  IS  Abb. 
X.  C.  (X.  Y.)  78.  After  interment,  the  con- 
trol over  a  dead  body  is  in  the  next  of  kin 
living.  P.ut  if  they  differ  about  its  disposal. 
equity  will  not  help  its  removal.  Where  a 
has  been  properly  buried,  it  is  doubt- 
ful if  even  the  next  of  kin  can  remove  it : 
Lowry  v.  Plitt,  16  Am.  L.  Reg.  155.  and  note. 
Where  a  wife  allowed  her  husband's  re- 
mains to  be  placed  temporarily  in  a  vault  in 
Xew  York,  and  his  father  removed  them  to 
his  own  vault,  held,  that,  in  the  absence  of 
a  request  by  the  deceased  husband  in  his 
lifetime,  the  widow  might  control  the  place 
of  burial,  but  that  she  could  not,  under  the 
circumstances,  disturb  their  repose  and  take 
them  to  Kentucky;  Southworth  v.  South- 
worth,  in  the  Xew  York  Supreme  Court, 
1SS1,  not  reported,  referred  to  in  an  article 
in  17  Can.  L.  J.  1S4.  The  husband  having  in 
a  time  of  great  distress  of  mind  after  his 
wife's  death  consented  to  her  burial  in  a  lot 
of  the  husbands  of  two  of  her  sisters,  and 
sought  to  remove  her  body  to  the  lot  owned 
by  himself  and  his  co-heirs,  the  defendants. 
being  the  lot  owners,  refused  permission,  and 
on  application  for  injunction  to  restrain 
their  interference,  it  was  held  that  he  had 
never  consented  to  her  burial  in  the  lot  as 
a  final  resting  place,  and  that  the  defend- 
ants might  be  required  by  a  court  of  chan- 
cery to  permit  the  removal.  Chief  Justice 
Cray  said:  Neither  the  husband  nor  the 
next  of  kin.  have,  strictly  speaking,  any 
right  of  property  in  a  dead  body;  but  con- 
ies between  them  as  to  the  place  of 
its  burial  are,  in  this  country  where  there 
are  no  ecclesiastical  courts,  within  the  juris- 
Of  a  court  of  equity;  Weld  v.  Walker, 
130  Mass.  42:;,  33* Am.  Rep.  465;  Meagher 
v.  Driscoll,  99  Mass.  281,  96  Am.  Dec.  ToC' ; 


DEAD  BODY 


774 


DEAD  MAN'S  PART 


2  Bla.  Com.  429;  Snyder  v.  Snyder,  60  How. 
Pr.  (N.  Y.)  368. 

Where  a  widow  ordered  a  funeral  of  her 
husband,  it  was  held  that  she  was  liable 
for  the  expense,  although  she  was  an  infant 
at  the  time,  the  court  holding  that  the  ex- 
penses fell  under  the  head  of  necessaries, 
for  which  infants'  estates  are  liable;  13  M. 
&  \Y.  252. 

See  Bingh.  Christ.  Antiq. ;  Tyler,  Am.  Eccl. 
Law;  Burton,  The  Burial  Question;  Cooley, 
Torts  2S0;  The  Law  of  Burials,  Anon.;  1 
Witthaus  &  Becker,  Med.  Jur.  297;  note  in 
Johnston  v.  Marinus,  18  Abb.  N.  C.  (N.  Y,) 
75,  containing  a  list  of  law  literature  on 
this  and  kindred  topics;  notes  to  Moak's 
Eng.  Rep.  656 ;  Cemetery  ;  Cremation  ; 
Measure   of  Damages;   Funeral   Expenses. 

DEAD-BORN.  A  dead-born  child  is  to  be 
considered  as  if  it  had  never  been  conceived 
or  born ;  in  other  words,  it  is  presumed  it 
never  had  life,  it  being  a  maxim  of  the  com- 
mon law  that  mortvus  exitus  non  est  exitus 
(a  dead  birth  is  no  birth).  Co.  Litt.  29  o. 
See  Marsellis  v.  Thalhimer,  2  Paige,  ,Ch. 
(N.  Y.)  35,  21  Am.  Dec.  66;  4  Ves.  334. 

This  is  also  the  doctrine  of  the  civil  law, 
Dig.  50.  16.  129.  Non  nasci,  et  natum  mori, 
paria  sunt  (not  to  be  born,  and  to  be  born 
dead,  are  equivalent).  La.  Civ.  Code,  art. 
28;  Domat,  liv.  prel.  t.  2,  s.  1,  nn.  4,  6. 

DEAD  FREIGHT.  The  amount  paid  by  a 
charterer  for  that  part  of  the  vessel's  ca- 
pacity which  he  does  not  occupy  although 
he  has  contracted  for  it. 

When  the  charterer  of  a  vessel  has  ship- 
ped part  of  the  goods  on  board,  and  is  not 
ready  to  ship  the  remainder,  the  master,  un- 
less restrained  by  his  special  contract,  may 
take  other  goods  on  board,  and  the  amount 
which  is  not  supplied,  required  to  complete 
the  cargo,  is  considered  dead  freight.  The 
dead  freight  is  to  be  calculated  according  to 
the  actual  capacity  of  the  vessel.  3  Chit. 
Com.  Law  399;  2  Stark.  450;  McCull.  Com. 
Die.     See  L.  R.  6  Q.  B.  528.     See  Freight. 

DEAD  LETTER.  Acts  that  have  become 
obsolete  by  long  disuse  are  often  so  called. 

See  Obsolete. 

DEAD  LETTERS.  Letters  transmitted 
through  the  mails  according  to  direction,  and 
remaining  for  a  specified  time  uncalled  for 
by  the  persons  addressed,  are  called  dead 
letters. 

DEAD  MAN'S  PART.  That  portion  of  the 
personal  estate  of  a  person  deceased  which 
by  the  custom  of  London  became  the  ad- 
ministrator's. 

If  the  decedent  left  wife  and  children,  this 
was  one-third  of  the  residue  after  deducting 
the  widow's  chamber ;  if  only  a  widow,  or 
only  children,  it  was  one-half;  1  P.  Wms. 
341;  Salk.  246;  if  neither  widow  nor  chil- 
dren, it  was  the  whole;  2  Show.  175.  This 
provision  was  repealed  by  the  statute  1  Jac. 


II,  c.  17,  and  the  same  made  subject  to  the 
statute  of  distributions.  2  Bla.  Com.  518. 
See  Customs  of  London;  Legitime. 

DEAD'S  PART.  In  Scotch  Law.  The  part 
remaining  over  beyond  the  shares  secured  to 
the  widow  and  children  by  law.  Of  this  the 
.testator  had  the  unqualified  disposal.  Stair, 
Inst  lib.  iii.  tit.  4,  §  24;  Bell  Diet.;  Pater- 
son,  Comp.  §§  674,  848,  902.  It  obtained  in 
the  province  of  York  till  1692.    See  Legitime. 

DEAD -PLEDGE.  A  mortgage;  mortuum 
vadium. 


DEADLY      WEAPON. 

Weapon;  Arms. 


See     Dangerous 


DEAF  AND  DUMB.  A  person  deaf  and 
dumb  is  doli  capax;  but  with  such  persons 
who  have  not  been  educated,  and  who  can- 
not communicate  their  ideas  in  writing,  a 
difficulty  sometimes  arises  on  the  trial. 

A  case  occurred  of  a  woman  deaf  and 
dumb  who  was  charged  with  a  crime.  She 
was  brought  to  the  bar,  and  the  indictment 
was  then  read  to  her ;  and  the  question,  in 
the  usual  form,  was  put,  Guilty  or  not  guilty? 
The  counsel  for  the  prisoner  then  rose,  and 
stated  that  he  could  not  allow  his  client  to 
plead  to  the  indictment  until  it  was  explain- 
ed to  her  that  she  was  at  liberty  to  plead 
guilty  or  not  guilty.  This  was  attempted 
to  be  done,  but  was  found  impossible,  and 
she  was  discharged  from  the  bar  simpliciter. 
Case  of  Jean  Campbell,  1  Wh.  &  St  Med. 
Jur.  §  468.  When  the  party  indicted  is  deaf 
and  dumb,  he  may,  if  he  understands  the 
use  of  signs,  be  arraigned  and  the  meaning 
of  the  clerk  who  addresses  him  conveyed  to 
him  by  signs,  and  his  signs  in  reply  explained 
to  the  court,  so  as  to  justify  his  trial  and 
the  infliction  of  punishment;  Com.  v.  Hill,  14 
Mass.  207;  1  Leach  102;  1  Chit  Cr.  L.  417. 
See  State  v.  Harris,  53  N.  C.  136,  78  Am. 
Dec.  272.  It  was  formerly  said  that  persons 
deaf  and  dumb  were  presumably  idiots;  1 
Hale,  P.  C.  34;  but  that  doctrine  was  formu- 
lated at  a  period  when  the  subject  of  the 
education  of  such  unfortunate  persons  had 
received  little  or  no  attention.  One  deaf 
and  dumb  is  not  consequently  insane,  nor  is 
he  presumed  to  be  an  idiot ;  Alexier  v.  Matz- 
ke,  151  Mich.  36,  115  N.  W.  251,  123  Am.  St. 
Rep.  255,  14  Ann.  Cas.  52 ;  and  his  capacity 
appearing,  he  may  be  tried;  1  Bish.  Cr.  L.  § 
395;  the  ordinary  presumption  of  sound  mind 
and  criminal  responsibility,  as  was  said  by 
Gilpin,  C.  J.,  in  a  case  of  homicide  by  a 
person  so  afflicted,  "does  not  apply  to  a  deaf 
and  dumb  person  when  charged  with  the 
commission  of  a  crime.  On  the  contrary,  the 
legal  presumption  is  then  directly  reversed ; 
for  in  such  case  it  is  incumbent  upon  the 
prosecution  to  prove  to  the  satisfaction  of 
the  jury  that  the  accused  had  capacity  and 
reason  sufficient  to  enable  him  to  distinguish 
between  right  and  wrong  as  to  the  act  at 
the   time  when  it   was  committed   by   him, 


DEAF  AND  DUMB 


775 


DEAN  AND  CHAPTER 


and  had  a  knowledge  and  consciousness  that 
the  act  he  was  doing  was  wrong  and  crim- 
inal and  would  subject  him  to  punishment; 
1  Houst.  Cr.  Rep.  5291  In  that  case  the 
prisoner  was  acquitted  "under  circumstances 
wherein  plainly  they  would  not  have  done  it 
if  he  had  been  endowed  with  hearing  and 
speech;"   1   Dish.   Cr.   L.   §  395. 

A  person  deaf  and  dumb  may  be  examined 
as  a  witness,  provided  he  can  he  Bworn; 
that  is,  if  he  Is  capable  of  understanding 
the  terms  of  the  bath,  and  assents  to  it,  and 
if,  after  he  is  sworn,  he  can  convey  las  ideas, 
with  or  without  an  interpreter,  to  the  court 
and  jury  ;  Phill.  Ev.  14.  If  he  is  able  to  com- 
municate his  ideas  perfectly  by  writing,  he 
will  be  required  to  adopt  that  as  the  more 
satisfactory  method;  but,  if  his  knowledge 
of  that  method  is  imperfect,  he  will  be  per- 
mitted to  testify  by  means  of  signs;  1  Greeul. 
Ev.  §  366;  Tayl  Ev.  1170. 

Such  person  may  execute  a  deed;  1  II.  L. 
Cas.  724;  Barnett  v.  Barnett,  54  N.  C.  221; 
but  it  is  said  in  an  old  case  that  he  is  prima 
facie  unable  to  make  a  contract  or  deed; 
Brown  v.  Brown.  3  Conn.  299,  S  Am.  Dec. 
187;  in  Culley  v.  Jones,  164  Ind.  168,  73  N. 
E.  94,  the  question  of  capacity  was  left  to 
the  jury.     See  a  note  in  14  Ann.  Cas.  52. 

Where  a  defendant  Is  deaf  and  dumb  and 
cannot  hear  the  testimony  of  the  witnesses 
of  the  state,  the  presiding  judge  should  per- 
mit some  reasonable  mode  of  having  their 
evidence  communicated  to  him ;  Ralph  v. 
State,  124  Ga.  81,  52  S.  E.  298,  2  L,  B.  A. 
(N.  S.)  50!);  where  it  was  said  that  in  such 
case  opportunity  should  be  given  for  the 
communication  to  the  defendant  of  the  tes- 
timony, but  the  exact  method  of  doing  it 
must  be  left  to  the  discretion  of  the  court. 

A  deaf  person  was  convicted  of  murder. 
Held  due  process  of  law;  Felts  v.  Murphy, 
201  U.  S.  123,  26  Sup.  Ct.  366,  50  L.  Ed.  6S9. 

DEAF,  DUMB,  AND   BLIND.     See  Idiot. 

DEAFF0REST,     DISAFFOREST.     In     Old 

English  Law.  To  discharge  from  being  for- 
est.   To  free  from  forest  laws. 

DEALER.  A  dealer  in  the  popular,  and 
therefore  in  the  statutory  sense  of  the  word. 
Is  not  one  who  buys  to  keep,  or  makes  to 
sell,  but  one  who  buys  to  sell  again.  Norrls 
v.  Com.,  27  Pa.  494;  Com.  v.  Campbell,  33 
Pa.   385. 

DEAN.  An  oerlesiastieal  officer,  who  de- 
rives his  name  from  the  fact  that  he  presides 
over  ten  canons,  or  prebendaries,  at  least. 
He  is  addressed  as  Very  Reverend. 

There  are  several  kinds  of  deans,  namely: 
deans  of  chapters;  deans  of  peculiars;  rural 
deans;  deans  in  the  colleges;  honorary  deans; 
deans   of  provinces. 

DEAN  AND  CHAPTER.  In  Ecclesiastical 
Law.  The  council  of  a  bishop,  to  assist  him 
with  tneir  advice  in  the  religious  and  also 
in  the  temporal  affairs  of  the  see.    3  Co.  75; 


1  Ilia.  Com.  382;  Co.  Litt  103,  300;   2 
de  la  Ley;  2  Burn,  Cool.  Law  120. 

DEAN  OF  THE  ARCHES.  The  presiding 
judge  of  the  court  of  the  arches.     He  was 

also  an  assistant  Judge  in  the  court  of  ad- 
miralty. 1  Kent  371;  3  Stepb.  Com.  727. 
See  Doctors  Commons;  Coubt  of  the 
Abcb 

DEATH.     The  cessation  of  life.    The 
ing  to  exist. 

Civil  death  is  the  state  of  a  person  who, 
though    possessing    natural    life,   lias   lost    all 
his  civil  rights,  and  as  to  them,  is  con.-, 
as  dead. 

A  person  convicted  and  attainted  of  felony  and 
sentenced  to  the  state  prison  for  life  is,  in  the  state 
of  New  York,  in  consequence  of  the  act  of  29th  of 
March,  1799,  and  by  virtue  of  the  conviction  and 
sentence  of  imprisonment  for  life,  to  be  considered 
as  civilly  dead;  Platner  v.  Sherwood,  6  Job 
(N.  V.)  118;  Troup  v.  Wood,  4  Johns.  Ch.  (X.  Y.) 
228,  2C0.  And  a  similar  doctrine  anciently  prevailed 
in  other  cases  at  common  law  in  England.  See  Co. 
Litt.  133  ;    1   Sharsw.  Bla.   Com.  132,  n. 

Natural  death  is  the  cessation  of  life. 

It  is  also  used  to  denote  a  death  which  occurs  by 
the  unassisted  operation  of  natural  causes,  as  dis- 
tinguished from  a  violent  death,  or  one  caused  or 
accelerated   by   the    interference   of   human   agency. 

In  Medical  Jurisprudence.  The  cause,  phe- 
nomena, and  evidence  of  violent  death  are 
of  importance. 

An  ingenious  theory  as  to  the  cause  of  death  has 
been  brought  forward  by  Philip,  in  his  work  on 
Sleep  and  Death,  in  which  he  claims  that  to  the 
highest  form  of  life  three  orders  of  functions  are 
necessary,— viz. :  the  muscular,  nervous,  and  sen- 
sorial ;  that  of  these  the  two  former  are  independ- 
ent of  the  latter,  and  continue  in  action  for  a  while 
after  its  cessation  ;  that  they  might  thus  continue 
always,  but  for  the  fact  that  they  are  dependent  on 
the  process  of  respiration  ;  that  this  process  is  a 
voluntary  act,  depending  upon  the  will,  and  that 
this  latter  is  embraced  in  the  sensorial  function.  In 
this  view,  death  is  the  suspension  or  removal  of  the 
sensorial  function,  and  that  leads  to  the  suspension 
of  the  others  through  the  cessation  of  respiration. 
Philip,  Sleep  &  D. ;    Dean,  Med.  Jur.  413  et  seq. 

Its  phenomena,  or  signs  and  indications. 
Real  is  distinguishable  from  apparent  death 
by  the  absence  of  the  heart-beats  and  res- 
piration. These  conditions  are,  however, 
not  always  easy  to  determine  positively 
when  the  following  tests  may  be  applied: — 
1.  Temperature  of  body  the  same  as  the  sur- 
rounding air.  -.  Intermittent  shocks  of  elec- 
tricity  at  different  tensions  give  no  indica- 
tions of  muscular  Irritability.  •':.  Mov< 
of  the  joints  of  the  extremities  and  of  the 
jaw  showing  more  or  less  rigor-morti 
A  bright  needle  plunged  into  the  l  s  and 

left  there  showing  no  siu-ns  of  oxidation  on 
withdrawal  (Cloquet'S  test).  5.  The  open- 
ing of  a  vein  showing  that  the  blood  v. 
are  empty,  or  that  in  the  veins  of  dependent 
parts  of  the  body  the  blood  has  coagulated. 
6.  The  subcutaneous  injection  of  ammonia 
causing  a  dirty  brown  stain  (Monte  Verde's 
test).  7.  A  lill'-t  applied  to  the  arm  caus- 
ing no  tilling  of  the  veins  on  the  distal  side 
of  the  fillet   (Richardson's  test).     8.  "Diaph- 


DEATH 


776 


DEATH 


anous  test" ;  after  death  there  is  an  absence 
of  the  translucence  seen  in  the  living  when 
the  hand  is  held  before  a  strong  light  with 
the  fingers  extended  and  in  contact.  9.  "Eye 
test";  after  death  there  is  loss  of  pupillary 
reaction  to  light  and  to  mydriatics,  and  there 
is  also  loss  of  corneal  transparency ;  H.  P. 
Loomis  in  Witthaus  &  Becker,  Med.  Jur. 

Its  evidence  ichen  produced  by  violence. 
This  involves  the  inquiry  as  to  the  cause  of 
death  in  all  cases  of  the  finding  of  bodies 
divested  of  life  through  unknown  agencies. 
It  seeks  to  gather  all  the  evidence  that  can 
be  furnished  by  the  body  and  surrounding 
circumstances  bearing  upon  this  difficult 
and  at  best  doubtful  subject.  It  more  im- 
mediately concerns  the  duties  of  the  coroner, 
but  is  liable  to  come  up  subsequently  for  a 
more  thorough  and  searching  investigation. 
As  this  is  a  subject  of  great,  general,  and 
growing  interest,  no  apology  is  deemed  nec- 
essary for  presenting  briefly  some  of  the 
points  to  which  inquiry  should  be  directed, 
together  with  a  reference  to  authorities 
where  the  doctrines  are  more  thoroughly  dis- 
cussed. 

The  first  point  for  determination  is,  wheth- 
er the  death  was  the  act  of  God  or  the  result 
of  violence.  Sudden  death  is  generally  pro- 
duced by  a  powerful  invasion  of  the  living 
forces,  that  develop  themselves  in  the  heart, 
brain,  or  lungs — the  first  being  called  syn- 
cope, the  second  apoplexy,  and  the  third  as- 
phyxia.    Dean,  Med.  Jur.  426. 

The  last  two  are  the  most  important  to  be 
understood  in  connection  with  the  subject 
of  persons  found  dead. 

In  death  from  apoplexy,  the  sudden  inva- 
sion of  the  brain  by  effused  blood  destroys 
innervation,  by  which  the  circulation  is  ar- 
rested. Death  from  apoplexy  is  disclosed  by 
the  appearances  revealed  by  dissection,  par- 
ticularly in  the  brain. 

Death  by  asphyxia  is  still  more  important 
to  be  understood.  It  is  limited  to  cases 
where  the  heart's  action  is  made  to  cease 
through  the  interruption  of  the  respiration. 
It  is  accomplished  by  all  the  possible  modes 
of  excluding  atmospheric  air  from  the  lungs. 
The  appearances  in  the  body  indicating 
death  from  asphyxia  are,  violet  discolora- 
tions,  eyes  prominent,  firm,  and  brilliant,  ca- 
daveric rigidity  early  and  well  marked,  ve- 
nous system  of  the  brain  full  of  blood,  lungs 
distended  with  thick  dark-colored  blood, 
liver,  spleen,  and  kidneys  gorged,  right  cavi- 
ties of  the  heart  distended,  left  almost  empty. 

Many  indications  as  to  whether  the  death 
is  the  act  of  God  or  the  result  of  violence 
may  be  gathered  from  the  position  and  cir- 
cumstances in  which  the  body  is  found.  As 
thorough  an  examination  as  possible  should 
be  first  made  of  the  body  before  changing 
its  position  or  that  of  any  of  the  limbs,  or 
varying  in  any  respect  its  relations  with  sur- 
rounding bodies.  This  is  more  necessary 
if  the  death  has  been  apparently  caused  by 


wounds.  Then  the  wounds  require  a  special 
examination  before  any  change  is  made  in 
position,  in  order  from  their  nature,  char- 
acter, form,  and  appearance  to  determine 
the  instrument  by  which  they  were  inflict- 
ed, and  also  their  agency  in  causing  the 
death.  Their  relations  with  external  objects 
may  indicate  the  direction  from  which  they 
were  dealt,  and,  if  incised,  their  extent, 
depth,  vessels  severed,  and  hemorrhage  pro- 
duced may  be  conclusive  as  to  the  cause  of 
death. 

A  thorough  examination  should  be  made 
of  the  clothes  worn  by  the  deceased,  and  any 
parts  torn  or  presenting  any  unusual  ap- 
pearance should  be  carefully  noted.  A  list 
should  be  made  of  all  articles  found  on  the 
body,  and  of  their  state  and  condition.  The 
body  itself  should  undergo  a  very  careful 
examination.  This  should  have  reference 
to  the  color  of  the  skin,  the  temperature  of 
the  body,  the  existence  and  extent  of  the 
cadaveric  rigidity  of  the  muscular  system, 
the  state  of  the  eyes  and  of  the  sphincter 
muscles,  noting  at  the  same  time  whatever 
swellings,  ecchymoses,  or  livid,  black,  or 
yellow  spots,  wounds,  ulcers,  contusions, 
fractures,  or  luxations,  may  be  present.  The 
fluids  that  have  exuded  from  the  nose, 
mouth,  ears,  sexual  organs,  etc.,  should  be 
carefully  examined :  and  when  the  deceased 
is  a  female,  it  will  be  proper  to  examine  the 
sexual  organs  with  care,  with  a  view  of 
ascertaining  whether  before  death  the  crime 
of  rape  had  or  had  not  been  committed. 

Another  point  to  which  the  attention 
should  be  directed  is,  the  state  of  the  body 
in  reference  to  the  extent  and  amount  of 
decomposition  that  may  have  taken  place 
in  it,  with  the  view  of  determining  when 
the  death  took  place.  This  is  sometimes  im- 
portant to  identify  the  murderer.  The  period 
after  death  at  which  putrefaction  supervenes 
became  a  subject  of  judicial  examination  in 
Desha's  case,  reported  in  Dean,  Med.  Jur. 
423  et  seq.,  and  more  fully  in  2  Beck,  Med. 
Jur.  44  et  seq.  Another  interesting  inquiry, 
where  persons  are  found  drowned,  is  pre- 
sented in  the  inquiry  as  to  the  existence  of 
adipocere,  a  compound  of  a  yellowish-white 
color,  consisting  of  calcareous  or  ammoni- 
acal  soap,  which  is  formed  in  bodies  immers- 
ed in  water  in  from  eight  weeks  to  three 
years  from  the  cessation  of  life.  Tayl.  Med. 
Jur.,  Hartsh.  ed.  542;  1  Ham.  Leg.  Med.  104. 

Another  point  towards  which  it  is  proper 
to  direct  examination  regards  the  situation 
and  condition  of  the  place  where  the  body  is 
found,  with  the  view  of  determining  two 
facts:  First,  whether  it  be  a  case  of  homi- 
cide, suicide,  or  visitation  of  God ;  and  sec- 
ond, whether,  if  one  of  homicide,  the  murder 
occurred  there  or  at  some  other  place,  the 
body  having  been  brought  there  and  left. 
The  points  to  be  noted  here  are  whether  the 
ground  appears  to  have  been  disturbed  from 
its  natural  condition ;  whether  there  are  any, 


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777 


DEATH 


and  what,  Indications  of  a  Btrnggle;  wheth- 
er there  are  any  marks  of  footsteps,  and,  if 
any,   their   size,    Dumber,    the    direction   to 

which  they  lead,  and  whence  they  ■ 
whether  any  traces  of  blood  or  hair  can  be 
found:  and  whether  any.  or  what,  instru- 
ments or  weapons,  which  could  have  ■ 
u  nil.  are  found  in  the  vicinity  ;  and  all  such 
instruments  should  be  carefully  preserved, 
BO  that  they  may  be  Identified.  Dean,  .Med. 
Jur.  257;  2  Beck,  .Med.  Jur.  107,  nn.  136,  250. 

As  the  decision  of  the  question  relating  to 
the  cause  of  death  is  often  important  and 
difficult  to  determine,  it  may  be  proper  to  no- 
tice some  of  its  signs  and  Indications  In  a 
few  of  the  most  prominent  cases  where  it 
is  induced  by  violence. 

Death  by  drowning  is  caused  by  asphyxia 
from  suffocation,  by  nervous  or  syncopal 
asphyxia,  or  by  asphyxia  from  cerebral  con- 
gestion. 

In  the  first,  besides  other  indications  of 
asphyxia,  the  face  is  pale  or  violet,  a  frothy 
foam  at  the  mouth,  froth  in  the  larynx,  tra- 
chea, and  bronchi,  water  in  the  trachea  and. 
sometimes,  in  the  ramifications  of  the  bron- 
chi, and  also  in  the  stomach.  In  the  second, 
the  lace  and  skin  are  pale,  the  trachea  emp- 
ty, lungs  and  brain  natural,  no  water  in 
the  stomach.  In  the  third,  the  usual  indi- 
cations of  death  by  apoplexy  are  found  on 
examination  of  the  brain.  See  1  Ham.  Leg. 
Med.  IL'0. 

Death  by  hanging  is  produced  by  asphyxia, 
suspending  respiration  by  compressing  the 
larynx,  by  apoplexy,  pressing  upon  the  veins 
and  preventing  the  return  of  blood  from 
the  head,  by  fracture  of  the  cervical  verte- 
bra-, laceration  of  trachea  or  larynx,  or  rup- 
ture of  the  ligaments  of  the  neck,  or  by  com- 
pressing the  nerves  of  the  neck.  The  signs 
and  indications  depend  upon  the  cause  of 
death.  Among  these  are,  face  livid  and 
swollen,  lips  distorted,  eyelids  swollen,  eyes 
red  and  projecting,  tongue  enlarged,  livid, 
compressed,  froth  about  the  lips  and  nos- 
trils, a  deep  ecchyrnosed  mark  of  the  cord 
about  the  neck,  sometimes  ecchyrnosed  patch- 
es on  different  parts  of  the  body,  lingers  con 
tract,  d  or  clenched. 

Death  by  strangulation  presents  much  the 
same  appearances,  the  mark  of  the  cord  be- 
in^  lower  down  on  the  neck,  more  horizon- 
tal, and  plainer  and  more  distinctly  eccliy- 
mosed. 

!><  ath  by  cold  leaves  few  traces  in  the  sys- 
tem. Pale  surface,  general  congestion  id' 
internal  organs,  sometimes  effused  serum 
in  the  ventricles  of  the  brain. 

Death  by  burning  may  show  the  usual 
signs  consequent  npon  exposure  to  great 
heat,  redness,  blistering,  charring.  The  un- 
affected part  of  the  body  is  usually  pale. 
The  extent  of  the  body  surface  burnt,  not 
the   degree  of  burning,   determines  death. 

Death  by  lightning  usually  exhibits  a  con- 


tused or  la<  ound  where  the  electric 

fluid    entered    and    ;  ettmes 

an   extensive  ecchyn 

Iicui/i     hi/     starvation     pr<  I 
emaciation;   eyes   and    cheeks    SU) 
projecting;  face  pal 
and    open:     Bkin,    mouth,    and    fa 
.stomach   and    intestines    empty;    gall-bl 

and  di.--tind.-d:  body  exhaling  a  fetid 
odor;    heart,     lungs,    and    lai- 
lapsed  :    early    commencement  of  the    putre- 
factive process. 

These  and   all   other  qu< 
persons  found  dead  will  be  found  ful 
cussed    in    works   on    medical  jurispn: 

The     Legal     Consequences.       Persons     who 
have  been   once  shown   to  have   been   in   life 
are  always  presumed   thus  to  continue  until 
the   contrary   is    shown;   so   that    the   burden 
is  on  the  party  asserting  the  death  to  make 
proof  of  it;  L'   East  312;  -   Rolle  461     But 
proof  of  a  long  continued  absence  unheard 
from  and  unexplained  will   lay  a  foundation 
for  a  presumption  of  death ;  Butrick  v.  Tilton, 
loo  Ma>s.  461,  •_':»  X.  B.  1088;  Bank  of  Louis- 
ville v.  P.oard  of  Trustees  of  Public  Schools. 
83    Ky.   L*li),   5    S.  W.    735.      Various   periods 
of  time  are  found  in  the  adjudged  ca 
warrant  such  presumption.     It  was  l. 
arise  after  twenty-seven  years;  3  Bro.  C.  C 
510;  twenty  year.-,  sixteen  years: 
Marden  v.  Boston.   155   Mass.   359,  L".»   N.    E. 
5SS;   fourteen  years;   Miller  v.    Beatee,  3   S. 
&  R.  (Pa.)  490,  8  Am.  Dec.  651;  twelve  . 
King    v.    Paddock,    IS    Johns.    (N.    Y.i    141: 
eleven  years:  Baden  v.  McKenny,  7  .v 
(D.  C.)   2GS.     The  general  rule,   as  now  un- 
derstood,   is    that    the    presumption    of    the 
duration   of  life  it    the  expirat: 

seven  years  from  the  time  when  the  i  i 
was  last  known  to  he  living;  and  after  the 
lapse  of  that  period  there  is  a  presumption 
of  death;  Smith  v.  Knowlton,  11  X.  11.  107: 
Clarke's  Ex'rs  v.  Canlield.  15  X.  J.  Bq.  119; 
Eagle  v.  Emmet,  4  Bradf.  Sur.  (N.  V.i  117. 
Chamb.  .Besl  Ev.  304,  note,  collecting  the 
cases;  Francis  v.  Francis,  180  Pa.  644,  .".7 
Atl.  120,  57  Am  Q.   B 

510;  l  Greenl.  Ev.  §  41;  5  B.  ft  Ad.  SO: 
Henderson  v.  P.onar,  11  S.  W.  809,  11  Ky. 
I..  Pep-  219;  French  v.  McGlnnlS,  69  Tex.  19, 
!)  S.  \V.  323.  In  most  of  the  states  t!. 
jeci  is  regulated  by  statute.  It  is  held  also 
that  there  must  he  diligent  inquiry  among 
who    would    probably    hear    from    SUCh 

absentee,  to  raise  this  presumption;  M 

Woodmen  of  America  v.  Gerdom,  72  Kan. 
391,  82  Pac.  iii»<>.  2  L.  P.  A.  (N.  S.I  809; 
Wentworth  v.  Wentworth,  71  Me.  74;  in 
re  Morrison's  Estate,  183  Pa.  155,  ::^  Atl. 
895;  in  re  r.oard  of  Education  of  X.  Y., 
17:;  X.  Y.  321,  00  X.  E.  11.  See  Modern 
Woodmen  of  America  v.  Gerdom,  72  Kan. 
391,  82  Pac.  1100,  2  L.  R.  A.  (X.  S.)  809,  and 
cases  cited.  In  In  re  Freeman's  Estate,  1> 
Pa.   Dist.  R.  101,   it   was   said   that   a   pre- 


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778 


DEATH 


sumption  of  death  in  consonance  with  the 
English  rule  arises  at  the  end  of  an  un- 
explained absence  of  seven  years,  but  con- 
trary to  the  English  rule,  a  counter-presump- 
tion also  arises  of  a  continuance  of  life  dur- 
ing and  up  to  the  very  end  of  that  period, 
subject  to  be  modified  by  proof  of  the  pres- 
ence of  imminent  peril  which  menaced  the 
life  of  the  absent  one  and  probably  termi- 
nated it  within  the  period. 

There  are  cases,  however,  where  a  pre- 
sumption of  death  may  be  raised  from  even 
a  shorter  absence;  Waite  v.  Coaracy,  45 
Minn.  159,  47  N.  W.  537;  Cambrelleng  v. 
Purton,  125  N.  Y.  610,  26  N.  E.  907 ;  Fidelity 
Mut.  Life  Assn.  v.  Mettler,  185  U.  S.  308, 
22  Sup.  Ct.  662,  46  L.  Ed.  922;  and  while 
seven  years  is  the  period  in  which  the  pre- 
sumption of  continued  life  ceases,  yet  this 
period  may  be  shortened  by  proof  of  such 
facts  and  circumstances  as,  submitted  to 
the  test  of  experience,  would  produce  a  con- 
viction of  death  within  a  shorter  period; 
Northwestern  Mut.  Life  Ins.  Co.  v.  Stevens, 
71  Fed.  258,  18  C.  C.  A.  107 ;  Davie  v.  Briggs, 
97  U.  S.  62S,  24  L.  Ed.  1086;  Hyde  Park  v. 
Canton,  130  Mass.  505;  Cox  v.  Ellsworth,  18 
Neb.  664,  26  N.  W.  460,  53  Am.  Rep.  827. 

Though  there  is  controversy  on  the  point, 
the  better  opinion  is  that  there  is  no  pre- 
sumption as  to  the  time  of  death ;  Davie  v. 
Briggs,  97  U.  S.  628,  24  L.  Ed.  1086;  Chamb. 
Best  Ev.  305;  2  Brett,  Com.  941;  2  M.  &  W. 
894;  and  the  vnus  is  on  the  person  whose 
case  requires  proof  of  death  at  a  particular 
period ;  Howard  v.  State,  75  Ala.  27;  White- 
ley  v.   Assurance   Society,   72    Wis.   170,   39 
N.  W.  369;  Spencer  v.  Roper,  35  N.  C.  333; 
8  U.  C.  Q.  B.  291.    It  seems  that  such  contin- 
ued absence  for  seven  years  from  the  particu- 
lar state  of  his  residence,  without  showing  an 
absence  from  the  U.  S.,  is  sufficient ;  Newman 
v.   Jenkins,   10  Pick.    (Mass.)    515;   Innis  v. 
Campbell,  1  Rawle  (Pa.)  373;  Spurr  v.  Trim- 
ble, 1  A.  K.  Marsh.  (Ky.)  278;  Wambaugh  v. 
Schenk,   2   N.  J.  L.  229;    Woods   v.   Woods' 
Adm'rs,  2  Bay  (S.  C.)  476;  and  to  establish 
the   presumption   of  death,   the  last  known 
place  of  residence  is  the  place  to  look  for 
the  person ;  Morrison's  Estate,  183  Pa.  155, 
38  Atl.  895;  but  the  statutory  presumption 
of  the  death  of  a  person  will  not  be  received 
until  all  reasonable  doubt  of  his  death,  at 
a   given  time,  is  removed;  Smith  v.   Combs, 
49  N.  J.  Eq.  420,  24  Atl.  9.    There  are  cases, 
however,  in  which  an  absence  of  seven  years 
will  not  raise  a  presumption  of  death  with- 
out issue,  as  where  it  is  probable  that  the 
failure  to  communicate  with   friends  is  •  in- 
tentional; In  re  Taylor,  66  Hun  626,  20  N. 
Y.    Supp.    960;    Doe   v.    Stockley,    6    Houst. 
(Del.)  447,   where  the  court  refused  to  in- 
struct the  jury  that  there  was  a   presump- 
tion of  the  death  of  an  entire  family  after 
an  absence  of  forty-five  or  fifty  years.     And 
the    statutory    presumption    of    death   after 
seven  years  does   not  apply   to  children  of 


tender  years  incapable  of  voluntary  absence 
or  concealment ;  Mauley  v.  Pattison,  73  Miss. 
417,  19  South.  236,  55  Am.  St.  Rep.  543.  As 
to  this  presumption  generally,  see  8  Eng.  Rui. 
Cas.  512. 

The  common-law  presumption  of  death  aft- 
er a  lapse  of  years  is  not  sufficient  in  a  crim- 
inal prosecution  to  prove  that  the  wife  was 
unmarried;  People  v.  Weinstock,  140  N.  Y. 
Supp.  453.  See  Escheat;  Absentee,  as  to 
the  power  of  the  legislature  to  provide  for 
the  administration  of  estates  of  persons  ab- 
sent and  presumed  to  be  dead. 

The  record  of  the  probate  of  a  will  is  not 
competent   evidence   of   death  except  where 


all  parties  to  a  subsequent  action  were  also 
parties  before  the  surrogate ;  Carroll  v.  Car- 
roll, 60  N.  Y.  121,  19  Am.  Rep.  144,  and  note. 
But  it  is  held  that  where  a  foreign  court  of 
competent  jurisdiction  has  made  a  grant  of 
administration  on  the  presumption  of  death, 
such  grant  may  be  accepted  by  the  court  of 
probate  as  sufficient  proof ;  [1892]  Prob.  255. 
Letters  of  administration  were  held  to  be 
evidence  of  death ;  Ruoff  v.  Bank,  40  Misc. 
549,  82  N.  Y.  Supp.  881;  Aultman,  Miller  & 
Co.  v.  Timm,  93  Ind.  158.  So  is  a  certificate 
of  the  register  of  births  and  deaths;  Suc- 
cession of  Jones,  12  La.  Ann.  397. 

A  letter  contained  in  an  envelope  request- 
ing a  return  to  the  writer,  if  not  called  for, 
and  showing  the  post  office  stamp  that  it  had 
been  returned  to  the  writer,  is  admissible  as 
affording  ground  for  an  inference,  more  or 
less  strong,  of  the  death  of  the  addressee; 
Hurlburt  v.  Hurlburt's  Estate,  63  Vt.  667,  22 
Atl.  850. 

Questions  of  difficulty  have  arisen  where 
several  persons,  respectively  entitled  to  in- 
herit from  one  another,  happen  to  perish  all 
together  by  the  same  event,  such  as  a  ship- 
wreck, a  battle,  or  a  conflagration,  without 
any  possibility  of  ascertaining  who  died 
first.  In  such  cases  the  French  civil  code 
and  the  civil  code  of  Louisiana  lay  down 
rules  (the  latter  copying  from  the  former) 
which  are  deduced  from  the  probabilities  re- 
sulting from  the  strength,  age,  and  differ- 
ence of  sex  of  the  parties. 
'  If  those  thus  perishing  together  were  un- 
der fifteen,  the  eldest  shall  be  presumed  the 
survivor.  If  they  were  all  above  sixty,  the 
youngest  shall  be  presumed  the  survivor.  If 
some  were  under  fifteen  and  others  above 
sixty,  the  former  shall  be  presumed  the  sur- 
vivors. If  those  who  have  perished  together 
had  completed  the  age  of  fifteen  and  were 
under  sixty,  the  male  shall  be  presumed  the 
survivor  where  the  ages  are  equal  or  the 
difference  does  not  exceed  one  year.  If  they 
were  of  the  same  sex,  that  presumption  shall 
be  admitted  which  opens  the  succession  in 
the  order  of  nature;  and  thus  the  younger 
must  be  presumed  to  have  survived  the  elder. 
French  Civ.  Code,  arts.  720-722;  La.  Civ. 
Code,  arts.  930-933;  Hollister  v.  Cordero,  76 
Cal.  649,  18  Pac.  855. 


DEATH 


779 


DEATH 


The  English  common  law  has  never  adopt 
ed  these  provisions,  or  gone  Into  the  refine- 
ment of  reasoning  upon  which  they  are  bas- 
ed.   It  requires  the  survivorship  to  be  proved 
by  facts,  and  not  by  any  settled  legal  rule 
or  prescribed  presumption,     in  some  of  the 
that  have  arisen  involving  this  bare 
question  of  survivorship,  the  court  have  ad- 
vised a  compromise',  denying  that  there  was 
any  legal  principle  anon  which  it  could  be 
decided.      In   others,    the    derision    has    been 
that  they  all  died  together,  and  that  none 
could  transmit  rights  to  others;    1    W.   Kin. 
cio;    Fearne,  Posth.  Works  38,  39;    2  Phill. 
261;    Cro.  EUiz.  so:'.;    3  Hagg.   BSccl.  71s;    5 
B.  &  Ad.  1)1:    1  Y.  &  0.  Oh.  121;    B 
v.  Hallet,  2:;  K;in.  276;   Btinde  v.  Goodrich,  :>, 
Redf.   (N.  Y.)  87:    [1892]  Prob.   142:    Ash   v. 
Bare,    73   Me.    403;     that   is,    the    one    who 
the    burden    of   proof   of   survivorship 
fails  in  his  case;    Newell  v.  Nichols,  ?•"•  N.  V. 
78,  31  Am.  Rep.  421;    Russell  v.  Hallett,  23 
Kan.  27(1.    Where  a  mother  aud  daughter  die 
in   the  same  year,  but  there  is  no  evidence 
of  the  precise  date;  of  the  death  of  the  moth- 
er, an  assumption  that  she  died   before  the 
daughter   is    not    warranted;    Cook    v.    Cas- 
well, 81  Tex.  G78,  17  S.  W.  383.     Each  case 
must  be  determined  upon  its  own  peculiar 
facts   and  circumstances,   whenever   the  evi- 
dence is  sufficient  to  support  a  hudiug  as  to 
survivorship;    Estate   of  Ehle,   73   Wis.  445, 
41  N.  W.  627. 

As  to  contracts.  These  are,  in  general,  not 
affected  by  the  death  of  either  party.  The 
executors  or  administrators  of  the  decedent 
are  required  to  fulfd  all  his  engagements, 
and  may  enforce  all  those  in  his  favor.  But 
to  this  rule  there  are  the  following  excep- 
tions, in  which  the  contracts  are  terminated 
by  the  death  of  one  of  the  parties: — 

The  contract  of  marriage.     See  Marriage. 

The  contract  of  partnership.  See  Part- 
RBBSHXP. 

Those  contracts  which  are  altogether  per- 
sonal: as,  where  the  deceased  has  agreed  to 
accompany  the  other  party  to  the  contract 
on  a  journey,  or  to  serve  another ;  l'othier, 
Obi.  c.  7,  art.  3.  §§  2,  3 ;  Howe  Sewing-Mach. 
Co.  v.  Rosensteel,  24  led.  588;  Lacy  v.  Get- 
man,  119  N.  Y.  K i«.t,  23  N.  E.  452,  6  L.  R.  A. 
728,  16  Am.  St.  Rep.  806;  or  to  instruct  an 
apprentice;  Bacon,  Abr.  Executor,  P;  i 
Burn,  Keel.  Law  82;  Ana,  Contr.  325; 
Shields  v.  Owens,  1  Rawle  (Pa.)  61  :  also  an 
instance  of  this  species  of  contract  in  2  1'.. 
&  Ad.  303.  In  all  those  cases  where  one  is 
actiug  for  another  and  by  his  authority, 
such  as  agencies  and  powers  of  attorney, 
where  the  agency  or  power  is  not  coupled 
with  an  interest,  the  death  of  the  party  or- 
dinarily works  a  revocation;  Hunt  v.  Rous- 
manier,  8  Wheat.  (U.  S.)  174.  5  L.  Ed.  589; 
Lehigh  Coal  X-  Nav.  Co.  v.  Mohr.  83  Pa.  22S, 
21  Am.  Rep.  161.  Where  the  power  is  to 
transfer  stock,  signed  by  the  seller  of  the 
stock,  it  is  not  revoked  by  his  death;    Fish- 


er v.  Coal  Co.,  31  W.  N.  C.  (Pa.)  502.     See 
Principal  and  Agent. 

•  ontinued  i  of  both  parti' 

minted   tern 
tract:    and  on  the  death  of  a  master  no 
lion  will  lie  agal 
fusing  to  continue  a  contract  •  ■: 

ton   v.   G 
I),  c.  578  :    Lacy  e.  G< 
N.   B.  452,  (1  L.    K.   A.   7_ 
Slid;    L.  R.  4  0.  P.  7!  1  ;    Burd< 
Allen  (Mass.)  12.".;    Hair; 

134,  2:.  s.   B.  525 :    Ba  • i        rich,  :: 

How.  I'r.  N.   S.  (N.   Y.i  52.      Bui    In  Hal 
v.  ("onlan,  10  Allen  i.M 
a  church  employed  an 
il. ree    months    for   $50.      The   ei 
and    the  organist    did   not  play   thereafb 
though    ready  to  do  so.     It  was  held  in  an 
action   against   the   personal   repp 
of  the  pastor  that  the  obligation  to  pay  was 
not  discharged  by  his  death,  but  that  the  or- 
ganist could  recover  only  pro  rata  compen- 
sation for  the  portion  of  the  three  months 
during  which  he  had  played.     Where  a  land- 
owner hired  another  for  a  specified  tei 
raise  crops,  the  contract  was  held  not  to 
with  the  employer's  death,  but  to  be  binding 
on  his  personal   representatives,   if  the  em- 
ployment was  continued;   though  most  of  the 
services   were  rendered    after   the  emp 
death,  the  employe.'  was  entitled  to  r< 
his  compensatiou:    Pugh  v.  Baker,  127  N.  C. 
2,  37   S.  E.  82.     In  Mendenhall   v.   Dai 
Wash.  169,  100  Pac.  336,  21  L.  K.  A.  (N.  B.) 
914,  17  Ann.  Cas.  17:».  a  buyer  paid  cash  and 
notes   for  the   implements   and   good    will   of 
tier's  dentistry   business  and  for  the 
seller's  agreement  to  render  for    i 
time  personal  service  in  that  business ;    the 
seller   died  before  the  expiration  of   t: 
riod  and  the  buyer  was  held  to  have  a  right 
to  counterclaim   against   his   liability   on   the 
the  damages   he   had    suffered   by    fail- 
ure to  receive  the  sor\  I 

As    to   torts.      In   general,    when   the    tort 
feasor  or   the   party   injured   dies,   the   • 
of  action  dies  with  him:    but  when  tl 
ceased  might  have  wai\ed  the  tori  and  main- 
tained assumpsit  against  the  defendant,  his 

personal     representative    may    do    the    same 
thing.      See   At  no    Pe&SONALIS    MOBITUB 
,  \,  where  this  subject  la  more  fu. 
amined.    As  to  the  right  of  action  for  death 
by  wrongful  act,  see  infra. 

As  to  -  rimes.    When  a  p.  t 
crime  dies  before  trial,  no  proceedings 

be    had    against     his    representatives    or    bis 

estate. 

,u-  to  inheritance.    By  the  death  of  a  per- 

tsed  Of  real  estate  or  l  I  Of  per- 

sonal property,  his  property  real  and  per- 
sonal, after  satisfying  his  debts,  vesta,  when 
he  lias  made  a  will,  as  he  has  directed  by 
that  instrument  :  hut  if  he  dies  intestate,  his 
real  estate  goes  to  his  heirs  at  law  under  the 
statute  Of  descents,   and  his  personal   to  his 


DEATH 


780 


DEATH 


administrators,  to  be  distributed  to  the  next 
of  kin,  under  tbe  statute  of  distributions. 

In  suits.  At  common  law  an  original  suit 
abated  by  reason  of  tbe  death  of  the  plain- 
tiff ;  6  Wait,  Act.  &  Def.  400 ;  Torry  v.  Rob- 
ertson, 24  Miss.  192;  but  in  most  of  the 
states  and  England  it  is  otherwise,  and  the 
personal  representatives  may  become  parties 
and  prosecute  the  suit;  Wms.  Ex.,  7th  Am. 
ed.  pt.  ii.  b.  iii.  ch.  4,  and  American  note 
thereto,  pp.  91,  99.  The  English  practice  and 
rules  under  the  procedure  acts  will  be  found 
in  the  chapter  of  Williams  on  Executors 
above  cited  and  a  reference  to  the  American 
statutes  in  the  note  thereto.  In  case  of  the 
death  of  a  plaintiff  the  usual  practice  is  to 
make  a  suggestion  of  it  to  the  court  which 
is  entered  of  record ;  and  in  case  of  the 
death  of  a  defendant  his  executor  or  admin- 
istrator may  be  made  a  party,  either  by 
scire  facias,  or  motion  for  an  order  of  re- 
vivor, or  other  proceeding  for  giving  due  no- 
tice to  the  representative,  according  to  the 
varying  practice  of  the  several  states.  See 
Abatement. 

As  to  the  death  of  one  of  the  parties  in  a 
divorce  suit,  see  Divorce. 

The  death  of  a  defendant  will  discharge 
the  special  bail ;  Tidd,  Pr.  243  ;  but  when  he 
dies  after  the  return  of  the  ca.  sa.  and  be- 
fore it  is  filed,  the  bail  are  fixed ;  6  Term 
284;  Boggs  v.  Teackle,  5  Binn.  (Pa.)  332; 
Champion  v.  Noyes,  2  Mass.  4S5 ;  Davidson 
v.  Taylor,  12  Wheat.  (U.  S.)  604,  6  L.  Ed. 
743;  Olcott  v.  Lilly,  4  Johns.  (N.  Y.)  407; 
Goodwin  v.  Smith,  4  N.  H.  29. 

At  common  law  there  was  no  right  of  ac- 
tion for  death  by  wrongful  act ;  Green  v.  R. 
Co.,  28  Barb.  (N.  Y.)  9;  Major  v.  Ry.  Co., 
115  la.  309,  88  N.  W.  815;  Duncan  v.  St. 
Luke's  Hospital,  113  App.  Div.  68,  98  N.  Y. 
Supp.  867. 

Lord  Ellenborough,  in  Baker  v.  Bolton, 
1  Campb.  493,  held  that  "in  a  civil  court 
the  death  of  a  human  being  cannot  be 
complained  of  as  an  injury."  Homicide 
is  always  a  purely  criminal  matter.  In 
the  early  English  law  it  was  regarded  more 
as  a  civil  than  a  criminal  offence,  and 
damages  were  paid  to  the  family  of  the  de- 
cedent known  as  wergilds.  As,  during  the 
continuance  of  this  custom,  a  process  for 
the  recovery  of  the  wergilds  was  certainly 
given,  it  seems  that  when  these  offences 
grew  no  longer  redeemable,  the  private  pro- 
cess was  still  continued,  in  order  to  secure 
the  infliction  of  punishment  upon  the  of- 
fender, though  the  party  injured  was  al- 
lowed no  pecuniary  compensation ;  Jac.  L. 
Diet.  tit.  Appeal.  This  process  was  known 
as  an  appeal  of  murder,  and  was  permitted 
by  statute  to  co-exist  with  the  criminal  ac- 
tion. The  defendant,  if  found  guilty  did  not 
pay  any  damages  to  the  plaintiff,  but  was 
punished  as  in  a  criminal  case.  The  real  ad- 
vantage to  the  plaintiff  lay  in  the  fact  that 
he  could  release  his  rights,  and  that  such  re- 


leases were  frequently  of  great  pecuniary  val- 
ue ;  7  Harv.  L.  Rev.  170.  This  appeal  for  mur- 
der existed  as  late  as  1818  in  the  case  of 
Ashford  v.  Thornton,  1  B.  &  Aid.  405,  wbcre 
the  court  held  that  the  appellor  had  a  rigbt 
to  bring  the  case  by  writ  of  appeal,  but  that 
the  appellee  had  an  equal  right  to  his 
plea  of  wager  of  battel.  The  appellor  de- 
clined to  accept  the  decision  of  the  court 
giving  the  appellee  trial  by  battel  and  the 
latter  was  discharged.  This  led  to  the  en- 
actment of  a  statute  the  next  year  abolish- 
ing appeal  of  murder,  treason,  etc.,  as  well 
as  wager  of  battel  (59  Geo.  III.  ch.  46).  Un- 
til 1846  there  was  no  civil  remedy.  In  that 
year  Lord  Campbell's  Act  was  passed  (9  & 
10  Vict.  ch.  93),  known  as  the  Fatal  Ac- 
cidents Act,  allowing  a  recovery  for  death 
caused  by  negligence  or  wrongful  act.  See 
Appeal. 

In  the  United  States,  like  statutes  have 
been  passed  modelled  on  this  act.  They  dif- 
fer principally  in  respect  of  the  person  who 
may  bring  the  action.  Their  purpose  is  to 
provide  the  means  for  recovering  damages 
caused  by  that  which  is  essentially  and  in 
its  nature  a  tort.  Such  statutes  are  not 
penal  but  remedial — for  the  benefit  of  the 
persons  injured  by  the  death., 

An  action  to  recover  damages  for  a  tort 
is  not  local,  but  transitory,  and  can,  as  a 
general  rule,  be  maintained  wherever  the 
wrongdoer  can  be  found ;  Stewart  v.  R. 
Co.,  168  U.  S.  448,  18  Sup.  Ct.  105,  42  L.  Ed. 
537.  It  may  well  be  that,  where  a  purely 
statutory  right  is  created,  the  special  rem- 
edy provided  by  the  statute  for  the  enforce- 
ment of  that  right  must  be  pursued,  but 
where  the  statute  simply  takes  away  a  com- 
mon-law obstacle  to  a  recovery  for  what  is 
admitted  to  be  a  tort,  it  would  seem  not  un- 
reasonable to  hold  that  an  action  for  that 
tort  can  be  maintained  where  the  statute  of 
the  state  in  which  the  cause  of  action  arose 
is  not  in  substance  inconsistent  with  the 
statutes  or  public  policy  of  the  state  in 
which  the  right  of  action  is  sought  to  be  en- 
forced; Stewart  v.  R.  Co.,  168  U.  S.  445, 
18  Sup.  Ct.  105,  42  L.  Ed.  537,  citing  Texas 
&  Pac.  Ry.  Co.  v.  Cox,  145  U.  S.  593,  12  Sup. 
Ct.  905,  36  L.  Ed.  S29 ;  Northern  Pac.  R. 
Co.  v.  Babcock,  154  U.  S.  190,  14  Sup.  Ct. 
978,  38  L.  Ed.  958. 

Where  the  negligence  which  causes  the 
accident  occurs  in  one  state  or  country,  and 
the  accident  itself  in  another,  it  is  the  law 
of  the  latter  place  that  governs;  Rundell 
v.  La  Compagnie  Gen.  Trans.,  100  Fed.  655, 
40  C.  C.  A.  625,  49 L.  R.  A.  92  (in  admiralty). 
It  is  held  that  a  new  action  is  created  for 
the  benefit  of  the  persons  named  in  the  stat- 
ute, and  not  a  continuation  of  a  right  of 
action  belonging  to  decedent  before  his 
death;  In  re  Mayo's  Estate,  60  S.  C.  401, 
38  S.  E.  634,  54  L.  R.  A.  660.  So  a  cause 
of  action  for  personal  injuries  which  sur- 
vives is  held  distinct  from   a  cause  of  ac- 


DEATH 


781 


di.a  ni 


tion  In  favor  of  surviving  relatives;  Brown 
v.  R.  Co.,  102  Wis.  137,  77  N.  W.  748,  7s  X. 
W.  771,  44  L.  R.  A.  579;  Lubrano  v.  Mills. 
19  R.  I.  11'!).  :;l-  Atl.  205,  31  L.  B.  A.  T'.»7: 
the  two  actions,  though  prosecuted  by  the 
same  personal  representative,  are  Dot  in  the 
same  right,  and  a  recovery  in  one  is  qo(  a 
bar  to  a  recovery  in  the  other;  Mahoning 
Valley  R.  Co.  v.  Van  Alstine,  77  Ohio  St. 
395,  83  N.  E.  601,  14  L.  R  A.  (N.  S 
That  there  is  hut  one  ground  <>f  liability,  the 
wrongful  act.  and  as  all  claims  for  dam- 
ages grow  out  of  the  one  wrong,  it  is  un- 
reasonable to  say  that  the  legislature  In- 
tended there  should  be  two  causes  of  ac- 
tion based  upon  it.  was  held  in  Ilolton  v. 
Daly,  "100  111.  131.  in  Brown  v.  R  Co..  102 
Wis.  137,  77  X.  W.  748,  78  N.  W.  771.  44  L. 
R.  A.  579,  it  is  said  of  that  case:  "True,  in 
the  circumstances  named,  there  is  but  one 
wrongful  act,  but  that  is  not  the  sole  ground 
of  action  in  the  right  of  the  d  or  the 

survivor.  It  takes  the  wrongful  act  and  the 
loss  to  make  the  complete  cause  of  action, 
and  as  the  loss  to  the  person  upon  whom 
the  injury  is  Inflicted  must  be  recovered  by 
or  in  his  right,  and  the  loss  to  the  surviving 
relatives  by  or  in  their  right,  the  causes  of 
action  are  clearly  distinct."  "If  several  per- 
sons are  made  to  suffer  pecuniary  loss  by 
one  wrongful  act,  each  may  very  properly 
have  his  independent  cause  of  action  ami 
remedy  for  the  loss  resulting  to  him,  and, 
generally,  in  order  to  do  complete  jus- 
tice, in  the  absence  of  some  provision  for  a 
recovery  for  the  benefit  of  all  and  a  dis- 
tribution of  the  proceeds,  separate  causes 
of  action  must  necessarily  exist." 

The  principles  on  which  the  decedent's 
cause  of  action  rested  at  common  law  are 
the  same  irrespective  of  the  cause  of  his 
death.  It  died  with  him,  but  is  revived  by 
tbi'  statute  in  favor  of  his  administrator. 
It  includes  nothing  more  than  the  intes- 
tate's cause  of  action.  That  act  simply  re- 
vives hut  does  not  enlarge  the  common-law 
right  of  the  decedent.  The  provision  tor 
surviving  relatives  Introduced  principles 
wholly  unknown  to  the  common  law.  name- 
ly, that  the  value  of  a  man's  life  to  his  wife 
and  next  of  kin  constitute  part  of  his  es- 
tate; Needham  v.  R.  Co..  38  Vt.  294,  where 
it  is  said  that  the  damages  to  the  widow 
and  next  of  kin  begin  where  (lie  damage  to 
the  intestate  ended — with  his  death.  In 
Clare  v.  It.  Co.,  172  Mass.  211.  51  \.  K.  pi-::. 
it  was  held  that  a  judgment  in  an  action  by 
an  administrator  for  personal  injuries  suf- 
fered by  plaintiffs  intestate,  and  not  for 
his  death,  is  not  a  bar  to  the  prosecutl  i!  of 
an  action  for  damages  for  his  death.  Bu1 
it  was  further  held  that  where  one  has  both 
a  common-law  and  a  statutory  right  of  ac- 
tion for  injuries,  and  has  elected  to  pursue 
the  statutory  remedy,  an  action  on  the  other 
is  barred;  and  while  the  right  to  maintain 
the  statutory  action  for  death  is  recognized, 


yet   where   damages  have  already   been  re- 
covered  under  the  common-]  .   the 

statutory   right   is  barred. 

It   has  been   held   that   where  the  death  is 
instantaneous    an    actioi  tie    main- 

tained   under   the   survival    statu;, 
land   v.   R.  Co.,   117  Mich. 

}.';   L.   K.   a.   568;    and   wheri 

survived   the   injury  about   t 

was   held    by   a   divided    court    that    a 

meiit    based   on    the    death   act    could 

sustained,    as   that   act   could  !y   to 

where  the  death  was  instaiil.r 
and  that  in  other  cases  the 
based  on  what  was  termed  the  survival  act; 
Dolson  v.  R.  Co..  li's  Mich.  in.  87  X.  w. 
629;  Beldlng  v.  R.  Co.,  ::  8.  D.  369,  •"::  X. 
W.  750;  Sawyer  v.  I'i-rvy.  88  Me.  !L\  .".'I  Atl. 
ceo. 

Where  the  plaintiff's  husband  released  the 
defendant  from  liability  for  persona]  inju- 
ries received  by  her  such  a  release  was  held 
a  bar  to  a  recovery,  when  five  years  later 
such  injuries  resulted  in  her  death,  on  the 
ground  that  the  wife  was  privy  to  the  hus- 
band, ami  therefore  estopped  by  his  rel< 
and  that  payment,  like  pardon,  relates  back 
to  the  original  act:  Southern  Rell  Telephone 
&  Telegraph  Co.  v.  Cns  dn,  111  c,:i.  r.y 
S.  l:    881,  50  I..  R.  A.  694. 

Collateral  relations  must  show  that  they 
suffered  pecuniary  loss  in  order  to  permit 
a  recovery  of  more  than  nominal  dan 
Anderson  v.  R.  Co..  ."o  Neb.  95,  52  X.  W. 
sift;  Paulmier  v.  R.  Co.,  •"■(  X.  J.  I..  151  : 
in  re  California  Xav.  &  Imp.  Co..  110  Fed, 
670;   Burk   v.    R  Co.,   1'-'"  ;.  57  Pac 

7.".  Am.  St.  Ken.  52;  Serensen  v.  R. 
Co..  45  Fed.  407;  or  reasonable  expectation 
thereof;  Thomas  v.  it.  Co..  8  Civ.  Proc  R 
(N.  Yd  353;  The  o.  l.  Hallenbeck,  119  Fed. 
168.  The  amount  the  deceased  Would  prob- 
ably    have    added     to    his    estate     has     been 

adopted  as  the  measure  of  recovery;  Chi- 
cago, I'.  &  St.  L.  R.  Co.  v.  Wool  rid -e.  17  1 
0,  51  X.  B.  7oi  :  and  probabilities,  not 
possibilities,  of  benefits;  Cleveland,  I 
&  St.  L.  R.  Co.  v.  Drumm,  32  tad,  App.  547, 
70   X.   B.  28d 

The  LOSS    of     parental     care     will     not     be 
considered    In   awarding    damages;    M 

biting  Co.,  27  It.  I.  272,  61  Atl.  667; 
contra,  Anthony  Inner  Brick  Co.  V.  Ashby, 
198  111.  562,  01  X.  E.  1109.  As  to  wheth- 
er the  pain  and  suffering  of  the 
or  the  grief  and  wounded  feelings  of  his 
surviving  relatives  will  be  considered  in 
the   estimate   of  dan  Mi.m.u. 

rSBUHQ. 

The  mother  of  an  illegitimate  child  can- 
not recover;  McDonald  v.  R,  Co..  71  S.  C. 
352,  51  s.  E.  138,  2  L  K.  A.  ,X.  8.)  640,  110 
Am.  St.  Rep.  576;  where  the  statute  gives 
the  right  to  the  mother  and  other  spe 
relatives;  Alabama  &  V.  Ry.  Co.  v.  Williams, 
78  Miss.  209,  28  South.  858,  51  L.  R.  a. 
84  Am.  St.  Rep.  624;    Marshall  v.  R.  Co.,  40 


DEATH 


782 


DEATH 


Fed.  269;  although  by  statute,  an  illegiti- 
mate child  and  his  mother  may  inherit  from 
each  other;  Harkins  v.  R.  Co.,  15  Phila. 
(Pa.)  2S6.  These  cases  follow  the  English 
rule,  which  denies  the  right  of  action  on 
the  ground  that  "child"  in  an  act  of  parlia- 
ment always  applies  exclusively  to  a  legiti- 
mate child ;    2  Hurlst.  &  C.  735. 

On  the  other  hand,  where  the  statute  al- 
lowed an  illegitimate  child  and  its  mother 
to  inherit  from  each  other,  the  mother 
should  be  permitted  to  recover;  Marshall 
v.  R.  Co.,  120  Mo.  275,  25  S.  W.  179;  so 
also  where  the  statute  gave  the  right  of  re- 
covery to  the  widow  and  next  of  kin;  Se- 
curity Title  &  Trust  Co.  v.  R.  R.  Co.,  91  111. 
App.  332. 

When  the  legislature  has  created  a  right 
of  action  for  wrongful  death  for  the  bene- 
fit of  the  next  of  kin,  and  has  declared  that 
the  father,  if  living,  is  the  next  of  kin  of 
minor  children  who  leave  neither  widow  nor 
children,  an  action  for  the  death  of  such 
child  must  be  for  the  sole  benefit  of  the 
father,  although  he  has  deserted  his  fam- 
ily, to  whose  support  the  deceased  child  was 
at  the  time  of  his  death  contributing ;  Swift 
&  Co.  v.  Johnson,  138  Fed.  867,  71  C.  C.  A. 
619,  1  L.  R.  A.  (N.  S.)  1161;  Pineo  v.  R.  Co., 
99  N.  Y.  644,  affirming  34  Hun  (N.  Y.)  80. 
It  is  said,  however  that  he  may  have  only 
nominal  damages  in  such  case;  Cook  v. 
Gunpowder  Co.,  70  N.  J.  L.  65,  56  Atl.  114; 
and  his  right  to  recover  at  all  is  denied  in 
Southern  R.  Co.  v.  Flemister,  120  Ga.  524, 
48  S.  E.  160. 

At  common  law,  neither  husband  nor  wife 
may  recover  damages  for  the  negligent  kill- 
ing of  the  other  where  death  is  instantan- 
eous, either  for  loss  of  services  or  consor- 
tium; Armstrong  v.  Beadle,  Fed.  Cas.  No. 
541;  Howell  v.  Board  of  Com'rs,  121  N.  C. 
362,  28  S.  E.  362;  Johnson  v.  Electric  Co., 
39  Wash.  211,  81  Pac.  705;  Wyatt  v.  Wil- 
liams, 43  N.  H.  102 ;  Grosso  v.  R.  Co.,  50  N. 
J.  L.  317,  13  Atl.  233;  Womack  v.  Banking 
Co.,  80  Ga.  132,  5  S.  E.  63 ;  The  Harrisburg, 
119  U.  S.  199,  7  Sup.  Ct.  140,  30  L.  Ed.  358; 
Mowry  v.  Chaney,  43  la.  609;  Sherlag  v. 
Kelley,  200  Mass.  232,  86  N.  E.  293,  19  L. 
R.  A.  (N.  S.)  633,  128  Am.  St.  Rep.  414; 
Green  v.  R.  Co.,  28  Barb.  (N.  Y.)  9,  where  it 
is  said  no  action  for  loss  of  .service  can 
be  sustained  in  case  of  instantaneous  death, 
because  there  is  no  time  during  her  life 
when  it  can  be  said  that  the  husband  has 
lost  the  society  and  service  of  his  wife  in 
consequence  of  the  injury  complained  of. 
Recovery  can  be  had  if  death  is  not  instan- 
taneous; Eden  v.  R.  Co.,  14  B.  Monr.  (Ky.) 
204;  Hyatt  v.  Adams,  16  Mich.  180;  Green 
v.  R.  Co.,  28  Barb.  (N.  Y.)  9.  See  McMillan 
v.  Lumber  Co.,  115  Wis.  332,  91  N.  W.  979, 
60  L.  R.  A.  589,  95  Am.  St.  Rep.  947.  In 
Ohio  the  action  can  be  maintained  in  the 
courts  of  that  state  only  when  the  deceased 
was  an  Ohio  citizen;  Baltimore  &  O.  R.  Co. 


v.  Chambers,  73  Ohio  St.  16,  76  N.  E.  91,  11 
L.  R.  A.  (N.  S.)  1012;  affirmed  in  Chambers 
v.  R.  Co.,  207  U.  S.  142,  28  Sup.  Ct.  34,  52  L. 
Ed.  143,  where  it  was  held  that  the  plaintiff 
was  not  denied  access  to  the  Ohio  courts 
because  she  was  not  a  citizen  of  that  state, 
but  because  her  cause  of  action  was  not 
cognizable   in    those   courts. 

Generally,  under  the  statutes,  the  remedy 
is  open  to  non-residents ;  In  re  Mayo's  Es- 
tate, 60  S.  C.  401,  38  S.  E.  634,  54  E.  R.  A. 
600.  Non-resident  aliens  are  within  the 
operation  of  such  statute  permitting  the 
father,  mother,  widow  or  next  of  kin  of  one 
killed  by  another's  negligence  (or  the  per- 
sonal representatives  of  the  deceased,  for 
their  benefit)  to  maintain  an  action,  al- 
though the  statute  does  not  expressly  declare 
that  they  shall  be  entitled  to  its  benefit ; 
Rietveld  v.  R.  Co.,  129  la.  249,  105  N.  W. 
515;  Trotta's  Adm'r  v.  Johnson,  121  Ky. 
827,  90  S.  W.  540,  12  Ann.  Cas.  222;  Masci- 
telli  v.  Union  Carbide  Co.,  151  Mich.  69:J, 
115  N.  W.  721;  Kellyville  Coal  Co.  v.  Petray- 
tis,  195  111.  215,  63  N.  E.  94,  88  Am.  St.  Rep. 
191 ;  Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Fajardo, 
74  Kan.  314,  86  Pac.  301,  6  L.  R.  A.  (N.  S.) 
681;  Ferrara  v.  Mining  Co.,  43  Colo.  496,  95 
Pac.  952,  17  L.  R.  A.  (N.  S.)  964;  Gaska  v. 
Car  &  Foundry  Co.,  127  Mo.  App.  169,  105 
S.  W.  3;  Low  Moor  Iron  Co.  v.  La  Bianca's 
Adm'r,  106  Va.  83,  55  S.  E.  532,  9  Ann.  Cas. 
1177 ;  Mulhall  v.  Fallon,  176  Mass.  266,  57  N. 
E.  386,  54  L.  R.  A.  934,  79  Am.  St.  Rep.  309; 
Kellyville  Coal  Co.  v.  Petraytis,  195  111.  215, 
63  N.  E.  94,  88  Am.  St.  Rep.  191;  Szymanski 
v.  Blumenthal,  3  Pennewill  (Del.)  558,  52 
Atl.  347;  Renlund  v.  Min.  Co.,  89  Minn.  41, 
93  N.  W.  1057,  99  Am.  St.  Rep.  534;  Bon- 
thron  v.  Fuel  Co.,  8  Ariz.  129,  71  Pac.  941,  61 
L.  R.  A.  563;  Alfson  v.  Bush  Co.,  182  N.  Y. 
393,  75  N.  E.  230,  108  Am.  St.  Rep.  815; 
Pittsburgh,  C,  C.  &  St.  L.  R.  Co.  v.  Naylor, 
73  Ohio  St.  115,  76  N.  E.  505,  3  L.  R.  A. 
(N.  S.)  473,  112  Am.  St.  Rep.  701;  Cetofonte 
V.  Coke  Co.,  78  N.  J.  L.  662,  75  Atl.  913,  27 
L.  R.  A.  (N.  S.)  1058;  Patek  v.  Refining  Co., 
154  Fed.  190,  83  C.  C.  A.  284,  21  L.  R.  A. 
(N.  S.)  273  (Colorado);  Mahoning  Ore  & 
Steel  Co.  v.  Blomfelt,  163  Fed.  827,  91  C.  C. 
A.  390  (Minnesota) ;  Kaneko  v.  Ry.  Co.,  164 
Fed.  263  (California) ;  Anustasakas  v.  Con- 
tract Co.,  51  Wash.  119,  98  Pac.  93,  21  L.  R. 
A.  (N.  S.)  267,  130  Am.  St.  Rep.  1089.  The 
courts  of  Pennsylvania,  Wisconsin  and  In- 
diana denied  this  right;  Deni  v.  R.  Co.,  1S1 
Pa.  525,  37  Atl.  558,  59  Am.  St.  Rep.  676; 
Maiorano  v.  R.  Co.,  216  Pa.  402,  65  Atl. 
1077,  21  L.  R.  A.  (N.  S.)  271,  116  Am.  St. 
Rep.  778;  affirmed  in  213  U.  S.  268,  29  Sup. 
Ct.  424,  53  L.  Ed.  792;  McMillan  v.  Lumber 
Co.,  115  Wis.  332,  91  N.  W.  979,  60  L.  R.  A. 
5S9,  95  Am.  St.  Rep.  947;  Cleveland,  C-,  C. 
&  St.  L.  R.  Co.  v.  Osgood  (Ind.)  70  N.  E. 
839.  The  federal  courts  sitting  in  Pennsyl- 
vania followed  the  Pennsylvania  courts; 
Zeiger  v.  R.  Co.,   151  Fed.  348,  affirmed  in 


DEATH 


7S3 


DEATH 


158  Fed.  809,  S6  C.  C.  A.  69.  In  Brannigail 
v.  Mining  Co.,  93  Fed.  164,  the  Cnited  States 
circuit  court  for  Colorado  Hollowed  the  Penn- 
sylvania decisions  in  construing  the  Colorado 

statute. 

In   England,   too,    the   rulings   have 
conflicting.     It  was  held    that    Lord   Camp- 
bell's Act  does  not  give  a    right  of   action 
for  the  benefit  of  a  non-resident  alien;  L1898J 
2  q.  B.  430;  but  a   lati  disapproved 

this  ruling  and  a  right  of  recovery  on  be- 
half of  a  nun  resident  alien  widow  was  sus- 
tained;  [1901]  2  K.   B.  606. 

It  was  sought  in  Maiorano  v.  It.  Co.,  216 
Pa.  402,  65  At  I.  1077.  21  L.  R.  A.  (N.  S.i  271, 
110  Am.  St.  Rep.  778,  to  overrule  the  earlier 
Pennsylvania  decisions  by  contending  that 
the  plaintiff  was  protected  by  the  existing 
treaty  between  the  Dnited  States  and  Italy 
providing  that  citizens  of  Italy  shall  enjoy 
in  states  of  the  Union  in  the  protection  and 
security  of  their  persons  and  property  the 
same  rights  which  are  enjoyed  by  citizens 
of  the  United  States.  But  it  was  held  that 
such  a  treaty  conferred  such  rights  only 
upon  those  citizens  of  Italy  who  bring  their 
persons  or  property  within  the  Jurisdiction 
of  the  United  States;  that  the  plaintiff  in 
this  case,  being  a  citizen  and  resident  of 
Italy,  could  not  recover  damages  for  her 
husband's  death.  This  was  affirmed  by  the 
United  States  Supreme  Court  :  213  U.  S.  268, 
29  Sup.  Ct.  424,  53  L.  Ed.  792. 

In  New  York  it  was  held  that  since  in 
Pennsylvania  no  right  of  action  for  wrong- 
ful death  existed  in  favor  of  non-resident 
aliens,  upon  the  principles  of  comity  non- 
residents could  not  maintain  an  action  in 
New  York  and  recover  for  the  death  of  a 
person  in  Pennsylvania;  Gurofsky  v.  K.  Co., 
121  App.    Div.  1110,   105  N.   Y.   Supp.  514. 

By  a  treaty  between  United  States  and 
Italy  of  1913,  non-resident  aliens  are  given 
a  right  of  action  for  injury  or  death  caused 
by  negligence  or  fault,  and  they  enjoy  the 
same  rights  as  are  granted  to  United  States 
citizens,  under  like  conditions. 

It  was  held  in  The  Uarrisburg,  11!)  U.  S. 
199,  7  Sup.  Ct.  140,  30  L.  Ed.  35S,  that  no 
damages  can  be  recovered  In  admiralty  for 
the  death  by  negligence  of  a  human  being 
ou  the  high  seas,  or  on  waters  navigable 
from  the  seas,  in  the  abs<  nee  of  an  ad  ol 
congress  or  a  state  statute.  The  maritime 
law,  of  this  country,  at  least,  gives  n<j  such 
right;  Butler  v.  Steamship  Co.,  l^o  U.  s. 
555,  !)  Sup.  Ct.  612,  32  L.  Ed.  1017.  It  was 
held  that  where  the  law  of  a  state  to  which 
a  vessel  belonged  (the  law  of  the  domicil  or 
flag)  gives  a  right  of  action  for  wrongful 
death  if  such  death  occurred  on  the  bigb 
seas,  such  right  of  action  will  be  enforced  In 
admiralty  as  a  claim  against  the  land  aris- 
ing in  a  proceeding  to  limit  liability;  The 
Hamilton.  207  U.  S.  398,  28  Sup.  Ct  133,  52 
L.  Ed.  2G4.  In  La  BourgOgne,  210  U.  S.  95, 
28  Sup.  Ct.  664,  52  I..  Ed.  ''7::.  it  was  held 
that   the   law   of   France,   which    authorizes 


recovery    for    loss    of  11* 

in   fault,    will    I 

the  United   Stab  -  In  i  to  limit 

liability   for  claims 

found  to  be  in  fault  for  i 

on  the  high 

in  applying  to  the  I 

dona!  rule  as  to  the  speed  ol  i 

had  held  such  vessel  not  to  be  in  Cauil 

21    Ilarv.    L.    Kev.    1,    as  to    tb 

of  a  right  of  action  acquired  under  l 

law  for  death  upon  the  high 

DEATH-BED  DEED,  a  deed  made  by 
one  who  was  at  the  time  Bick  <»f  a  di 

from  which  he  afterwards  died.     Bell,  Diet 

DEATH     DUTIES.      Used    in    England    to 

designate  inheritance  tax  Tax. 

DEATH'S  PART.     See  in:\u 

s  i'Ai;r. 

DEATH    WARRANT.     See  Execution. 

DEBAUCH.  To  corrupt  one's  manners,  to 
make  lewd,  to  mar  or  spoil;  to  seduce  and 
vitiate  a  woman.  Eoenig  v.  Nott,  2  I  lilt.  (N. 
Y.i  329. 

In  an  action  for  damages  for  crim.  con., 
the  allegation  being  that  defendant  Beduced 
and  debauched  the  plaintiff's  wife,  wh< 
her  affections  were  alienated,  etc.,  if  the 
charge  of  adultery  be  not  proved,  the  word 
debauch  in  the  petition  will  not  support  a 
rerdict  for  damages  for  alienation  oi  . 

tion;    Wood   V.  -Mathews.  -17   la.  409. 

It  is  a  word  of  French  origin  which  has 
come  into  use  in  our  language  in  the  sense 
of  enticing  and  corrupting. 

DEBENTURE   (from  debentur  mihi,   Lat, 

with  which  various  old  forms  of  acknov 

»bt  commenced  I .    a 
en  in  pursuance  of  law,  by  the  collector  of  a 
port  Of  entry,   for  a   certain  sum  due  by  the 
.  States,  pi  a  time  therein  men- 

tioned, to  an  Importer  for  drawback  of  duties 
on  merchandise  imported  and  exported  by  him, 
provided  the  duties  on  the  said  merchandise 
shall  have  been  discharged  prior  to  the  time 
dd.  U.  s.  Kev.  Stat  88  3037 
In  some  government  deparl  term 

ad  o|  bill  by  which  the 
government  is  charged  to  pay  a  credit 
signs  the  money  due  on  auditing  b 
count 

An    Instrument   in    writing,    generally    un- 

I'li  a  def- 
inite or   indefinite   fund  or   subject   of   prop- 
lyable  t<>  a  given  \  etc,  and  usu- 

ally  constituttni  ■  ■(   similar 

Instruments.    Cavanagh,  Moi  I     See 

56   I-  -I.   R.  Ch.  D.  S15;    Briee,   Ultra    Vires 
(2d  ed.)  270. 

A  charge  in  writing  on  certain  property, 
with  the  repayment  at  a  time  fixed,  of  money 
lent  by  a  person  therein  named  at  a  given 
Inter* 

It  is  frequently  resorted  to  by  public  com- 


DEBENTURE 


784 


DEBENTURE 


panies  to  raise  money  for  the  prosecution  of 
their  undertakings. 

Any  instrument  (other  than  a  covering  or 
trust  deed)  which  either  creates  or  agrees  to 
create  a  debt  in  favor  of  one  person  or  cor- 
poration, or  several  persons  or  corporations, 
or  acknowledges  such  debt.  Simonson,  De- 
bentures, 5,  where  this  is  given  as  the  result 
of  a  critical  examination  and  discussion  of 
the  cases  bearing  on  the  definition  of  the 
term. 

As  a  rule,  both  text  writers  and  courts  content 
themselves  with  a  statement  of  inability  to  define 
them.  An  English  writer  says:  "No  one  seems  to 
know  exactly  what  debenture  means ;"  Buckley, 
Companies  Act  169  ;  and  Chitty,  J.,  said  in  one  case 
that  "a  debenture  means  a  document  which  either 
creates  a  debt  or  acknowledges  it,  and  any  document 
which  fulfils  either  of  these  conditions  is  a  deben- 
ture ;"  37  Ch.  D.  260,  264 ;  but  in  the  same  case 
North,  J.,  would  not  go  so  far.  In  another  case  the 
same  judge  (Chitty)  said:  "The  term  itself  imports 
a  debt  and  acknowledgment  of  a  debt,  and  generally 
if  not  always  imports  an  obligation  to  pay;"  36 
Ch.  D.  215 ;  and  again  in  another  case  he  thus  ex- 
presses the  doubt  existing  as  to  the  exact  legal  idea 
involved  in  the  expression:  "So  far  as  I  am  aware, 
the  term  debenture  has  never  received  any  precise 
legal  definition.  It  is,  comparatively  speaking,  a 
new  term.  I  do  not  mean  a  new  term  in  the  English 
language,  because  there  is  a  passage  in  Swift  (quot- 
ed in  Latham's  Diet.)  where  the  term  debenture  is 
used."  The  lines  referred  to  are: 
"You  modern  wits,  should  each  man  bring  his  claim, 
Have  desperate  debentures  on  your  fame: 
And  little  would  be  left  you,  I'm  afraid. 
If  all  your  debts  to  Greece  and  Rome  were  paid." 

And  the  judge  continued:  "But  although  it  is 
not  a  term  with  any  legal  definition,  it  is  a  term 
which  has  been  used  by  lawyers  frequently  with 
reference  to  instruments  under  acts  of  parliament, 
which,  when  you  turn  to  the  acts  themselves,  are  not 
so  described  ;"    56  L.  J.  Ch.  817. 

"Debentures,  which  are  the  commonest  form  of 
security  issued  by  English  corporations,  are  defined 
to  be  instruments  under  seal  creating  a  charge  ac- 
cording to  their  wording  upon  the  property  of  the 
corporation,  and  to  that  extent  conferring  a  priority 
over  subsequent  creditors  and  over  existing  creditors 
not  possessed  of  such  charge.  This  is  the  true  and 
proper  use  of  the  term ;  although  it  is  frequently 
applied  on  the  one  hand  to  instruments  which  do 
not  confer  a  charge  and  which  are  nothing  more  nor 
less  than  ordinary  unsecured  bonds,  and  on  the 
other  to  instruments  which  are  more  than  a  mere 
charge,  being  in  effect  mortgages,  and  are  properly 
termed  mortgage  debentures."  Jones,  Corp.  B.  &.M. 
§  32. 

In  the  case  of  an  instrument  engaging  for  the  pay- 
ment of  "the  amount  of  this  debenture,"  with  cou- 
pons for  interest  payable  half-yearly,  Grove,  J., 
said:  "In  the  several  dictionaries  which  we  are  in 
the  habit  of  consulting!  no  satisfactory  definition  can 
be  found,  and  neither  of  the  learned  counsel  has 
been  able  to  afford  us  any.  I  do  not  remember  the 
term  being  used  otherwise  than  in  an  acknowledg- 
ment of  indebtedness  by  a  corporate  body  having 
power  by  act  of  parliament  or  otherwise  to  increase 
its  capital  by  borrowing  money."  It  was  something 
different  from  a  promissory  note,  having  a  different 
stamp  duty,  different  form,  and  a  special  mode  of 
paying  interest.  The  paper  was  held  a  debenture 
and  subject  to  a  higher  stamp  duty  than  a  promis- 
sory note.  In  the  same  case  Lindley,  J.,  said  that 
what  were  known  as  debentures  were  of  various 
kinds  ; — mortgage  debentures  which  were  charges  on 
some  kinds  of  property,  debenture  bonds  which  were 
not,  debentures  which  were  nothing  more  than  an 
acknowledgment  of  indebtedness  and  "a  thing  like 
this  which  is  something  more."    7  Q.  B.  D.  165. 

Manson,  treating  of  "The  Growth  of  the  Deben- 
ture" in  13  L.  Q.  R.  418,  says  that  its  origin  was  a 


mere  acknowledgment  of  indebtedness  from  the 
crown,  first  for  wages,  etc.,  of  servants,  then  to 
soldiers  for  arrears  due  them,  and  in  various  cases 
for  amounts  due  from  the  exchequer  and  the  cus- 
tom house ;  it  was  in  its  primitive  meaning  just 
what  its  derivation  from  debentur  implies — an  ad- 
mission of  indebtedness,  importing,  as  quoted  supra 
from  Chitty,  J.,  an  obligation  or  covenant  to  pay. 
From  this  root,  slender  as  it  is,"  continues  the  same 
writer,  "have  branched  all  the  variety  of  forms. 
.  .  .  Debentures  to  Bearer,  Registered  Debentures, 
Perpetual  Debentures,  Mortgage  Debentures,  Deben- 
ture Bonds,  Debenture  Stock,  Trust  or  Covering 
Deeds,  Debenture  Stock  Certificate  to  Bearer." 
Originally  not  one  of  a  series,  now  inseparably  con- 
nected with  serial  form.  "An  issue  of  debentures 
is  in  effect  one  great  contributory  charge  made  up 
of  a  series  of  securities,  identical  in  form  and 
amount."    id. 

Its  character  springs  from  its  genesis,  as  the  writ- 
er above  quoted  remarks,  and  is  moulded  by  the 
combination  of  necessities:  (1)  Of  giving  security 
to  the  holders  ;  (2)  of  leaving  the  company  free  to 
manage  its  business.  From  this  combination  arises 
the  idea  of  the  "floating  charge"  which  binds  the 
property  of  the  company  and  the  continuance  of 
which  as  a  mere  charge  is  based  upon  the  contin- 
ued existence  of  the  company  as  a  going  concern. 
See  Floating  Charge.  The  property  charged, 
changing  as  it  does  in  specie  from  time  to  time  is 
by  English  courts  termed  the  Undertaking,  which 
title  se&. 

If  the  company  makes  by  default  or  is  wound  up 
or  "ceases  to  be  a  going  concern,"  the  right  of  the 
holders  arises  to  ask  for  a  receiver  and  to  realize 
their  interest ;  56  L.  J.  Ch.  536,  35  W.  R.  574  ;  L.  R. 
15  Ch.  D.  465.  A  sale  of  its  entire  property  assets, 
good  will,  etc.,  is  not  in  the  ordinary  course  of 
business  and  was  enjoined  ;    id. 

"A  floating  charge,  though  it  nets  all  the  avail- 
able assets,  is  only  an  equitable  security,  and 
.  .  .  may  vanish  altogether.  Hence,  where  the 
sum  borrowed  is  large,  it  has  become  usual  to  sup- 
plement the  floating  charge  by  a  mortgage  of  spe- 
cific property  embodied  in  what  is  commonly  called 
a  covering  or  trust  deed;"  13  L.  Q.  R.  422;  which 
has  two  purposes:  (1)  To  fasten  the  security  upon 
the  property  ;  (2)  to  organize  the  debenture  holders 
into  a  compact  body  and  name  trustees  to  act  for 
them ;    id. 

The  mere  fact  that  an  instrument  is  on  its  face 
termed  a  debenture  does  not  make  it  such,  if  on  an 
examination  of  its  substance  it  is  found  not  to  con- 
tain an  acknowledgment  of,  or  agreement  to  pay,  a 
debt;    36  Ch.  D.  215:    37  id.  260. 

Debentures  may  be  issued  by  a  single  per- 
son, a  firm,  or  corporation,  and  it  is  an  at- 
tribute implied  in  the  definition  of  deben- 
ture that  the  holders  are  entitled  without 
priority  among  themselves.  They  are,  it  is 
said,  usually  made  a  primary  charge  on  the 
corporate  property  or  undertaking,  and  as 
such  will  have  priority  over  judgments  ob- 
tained by  general  creditors  and  over  the 
claims  of  shareholders ;    Cav.  Mon.  Sec.  358. 

"Such  debentures  are  in  effect  statutory 
mortgages.  ...  In  England  each  cred- 
itor is  secured  by  a  separate  mortgage,  while 
in  America  one  secures  all ;  and  by  statute 
in  England,  holders  of  mortgage  debentures 
have  no  priority  inter  se."  Jones,  Corp.  B.  & 
M.  Sec.  32. 

Sometimes  the  nature  of  a  debenture  hold- 
er's charge  is  that  of  a  floating  mortgage  or 
security  attaching  only  to  the  subjects  which 
are  for  the  time  being  the  property  of  thp 
company,  and  not  preventing  the  latter  from 
disposing  of  the  subject  charged  free  from 


DEBENTURE 


7S5 


IENTURB 


incumbrance;    id.;    L.  R.  15  Ch.  D.  405;    10 
id.  530, 

A  debenture  is  distinguished  (1)  from  a 
mortgage  which  is  an  actual  transfer  of  prop- 
erty,  (2)  from  a  bond  which  does  not  directly 
affect  property,  and  (3)  from  a  mere  charge 
on  property  which  is  individualized  and  does 
not  form  part  of  a  series  of  similar  chl 
Cav.  Mon.  Sec.  267,  citing  L.  B.  10  Ch.  D. 
530,  681  ;  15  id.  465;  21  id.  762;  L.  EL  7  App. 
Cas.  673.  Debentures  strictly  so  called  dif- 
fer from  mortgages  in  not  conferring  on  the 
grantee  the  legal  title  or  any  of  the  ordinary 
rights  of  ownership  of  the  property  upon 
which  the  charge  Is  created.  A  leading  Amer- 
ican writer  says  of  this  class  of  securities  as 
understood  in  England  that  the  charge  cre- 
ated by  them  confers  only  equitable  rights 
either  as  against  other  creditors  or  as  against 
the  «  orporation  creating  them.  It  is  a  test 
whether  an  instrument  is  a  debenture  or 
mortgage  to  ascertain  whether  the  holder 
has  any  legal  right  to  interfere  with  the  com- 
pany's use  or  control  of  the  property  in  what- 
ever way  it  pleases.  If  the  instrument  con- 
fers a  charge  which  can  be  protected  and  en- 
forced only  in  equity  it  is  strictly  a  deben- 
ture; Joues,  Corp.  P..  &  M.  §  32.  See  10  II. 
L.  C.  191.  Of  course,  the  effect  and  extent  of 
the  charge  depend  entirely  upon  the  language 
used;    L.  R.  2  Ch.  D.  337. 

A  debenture  holder  in  England  differs 
from  a  mortgagee  in  that  the  latter  lias  a 
lien  upon  tolls  and  traffic  receipts  and  may 
have  a  receiver  appointed  while  the  former 
has  not;  Jones,  Corp.  B.  &  M.  §  232;  2  Ir. 
Eq.  524;    L.  R.  7  Ch.  655. 

Debentures  issued  by  an  English  company 
owning  land  in  Italy  and  binding  their  "as- 
sets, property,  and  effects"  were  held  to  cre- 
ate no  mortgage  or  lien;  20  W.  R.  123;  and 
debenture  bonds,  principal  and  i 
payable  to  bearer,  secured  by  mortgs 
the  company  to  certain  persons  as  trustees 
for  the  holders,  which  was  void  for  non-re- 
cording,  were  held  to  create  no  charge;  19 
Q.  B.  D.  50S. 

Where  a  company  had  power  "to  issue 
bonds,  debentures,  or  mortgage  debentures," 
which  would  entitle  holders  to  be  paid  pari 
passu  out  of  the  company's  property,  evi- 
dences of  debt  expressed  as  "obligations"  by 
which  the  company  bound  "themselves  and 
their  successors  and  all  their  estate  property, 
etc.,"  were  held  to  be  debentures  and  to  cre- 
ate a  charge;    10  Ch.  Div.  530. 

As  issues  of  debentures  are  frequently,  if 
not  in  most  cases,  made  payable  to  the  bear- 
er, the  question  has  been  much  litigated  in 
England  whether  in  that  form  they  are  trans- 
ferable by  delivery.  There  being  no  statute 
under  which  they  are  negotiable,  they  must 
be  so  if  at  all  under  the  law  merchant  (q.  v.). 
Debentures  were  at  first  held  not  negotiable 
under  that  law:  L.  R.  S  Q.  B.  374;  but  In 
the  Exchequer  Chamber  upon  a  critical  ex- 

Bouv.— 50 


animation  the  decision  was  otherwise ;    L.  R. 

10  Ex.  346;   which  was  affirmed  by  the  House 

of  Lords,   which  distinguished  the  cases  and 

did  not  review  the  eai 

lTD  ;    and  finally  it  was  held  that  debentures 

Issued  in   England   by   a   I 

able    to    bearer    are    nego  iabl  law 

merchant  and  their  transi*  »d  ti- 

alnst  anybody  to  a   bona 
er ;    [1898]  Q.  B.  658.     1 
applied  to  those  of  a  for< 
moldy  treated  as  negotiable  in  the  ma 
[1802]  3  Ch.  527. 

Where  a  number  of  debentures  are  sealed 
Cter  another  in  numerical  o 
prima  facie  rank  in  priority  accordingly,  but 
if  it  is  so  provided,  they  rank  pari 
Ch.  D.  762;   38  id.  J.",-;,  171;    Buck 
panics  Acts  17J.    They  are  generally 
in  a  series,  but  need  not  be  BO,  a^  a 
debenture  may  be  i.-sued  to  one  man;   30  Ch. 
D.  221. 

Debentures  are  not  issued  until  they  are 
red;  id.;  34  Ch.  I).  58.  A  contract  to 
make  or  take  debentures  will  not  be 
ically  enforced,  but  the  party  is  left  to  his 
action  for  damages;  [1897]  1  Q.  B.  692,  af- 
firmed [1S9S]  A.  C.  309. 

The  exact  nature  of  debentures  has 
much  discussed  in  England  as  arising  In  cas- 
es where  the  question  was  whether  a 
required  registration  under  the  Bills  of  Sales 
Act  which  excepted  from  its  provisions  "de- 
bentures" issued  by  any  mortgage,  loan,  or 
other  incorporated  company  and  secured  ui>- 
on  the  capital  stock  of  goods,  chattels,  and 
effects  of  such  company. 

A  memorandum  of  agreement  which  con- 
tained a  covenant  by  a  company  to  pay  to 
each  of  nine  persons,  who  were  mentioned  in 
it  as  lenders,  the  Bum  set  opposite  their 
names  pari  passu,  and  charged  all  the  prop- 
erty of  the  company,  was  a  debenture 
Ch.  D.  215  :  and  the  covering  deed  which  usu- 
ally accompanies  debentures  as  a  security 
for  the  payment  of  the  debentures  when  due 
is  not  a  debenture;  34  Ch.  l>.  43;  though 
why  it  Should  be  so  held,  it  lias  been  remark- 
ed, it  is  difficult  to  see  in  view  of  the  judicial 
definitions  Of  the  word  "debenture"  quoted 
supra;  Simonson,  Debenture- 
marks  of  Cord  North;  .".7  Ch.  1'.  281,  - 
but  it  need  not  be  r<  onder  tl. 

of  sales  Act;  [1891]  l  Ch.  (A.  C.)  627; 
2  Ch.  212. 

A  mere  memorandum  in  writing  by  a 
and  fireclay  working  and  brick-making  com- 
pany, of  a  deposit  with  bankers  of  title  • 
as  a  security  for   balances  due  or  to  become 
due.    but    Which    did    noi    admit    any    S] 
debt,  or  contain  an  agreement  to  pay  other- 
wise than  by  an  agreement  to  execute  a  legal 
gage,    was   aot    a    debenture;    37    Ch.   1). 
281. 

The  act  referred  to  speaks  of  "debentures 
i-.sued    .     .     .    and   secured    upou,"    and   an 


DEBENTURE 


786 


DEBET  SINE  BREVE 


English  writer  of  authority  considers  that 
this  means  a  borrowing  money  for  the  bene- 
fit of  several  lenders;  Buckley,  Companies 
Acts  170 ;  but  it  has  been  held  that  the  stat- 
utory term  debenture  applied  when  there 
were  several  lenders  but  only  one  security 
given  for  the  benefit  of  all ;  36  Ch.  D.  215 ; 
it  may  consist  of  one  document,  not  necessa- 
rily of  a  series  of  documents;  id.;  and  a 
single  security  to  a  single  lender,  not  pur- 
porting in  terms  to  be  a  debenture,  was  one 
in  law ;  37  Ch.  D.  2G0.  A  security  to  a  lend- 
er on  some  part  of  a  company's  property  is 
not  one,  while  an  issue  secured  upon  its  en- 
tire stock  in  trade  and  undertaking  is,  and 
between  these  two  is  to  be  sought  the  line  of 
demarcation;    Buckley,  Companies  Acts  172. 

The  remedy  upon  a  default  was  formerly 
by  an  action  to  realize  the  security  commenc- 
ed by  one  holder  on  bebalf  of  all  and  the  ap- 
pointment of  a  receiver  and  manager  to  car- 
ry on  the  business;  this  was  followed  by  a 
winding  up  petition,  but  more  recently  the 
proceeding  has  been  for  a  decree  of  foreclo- 
sure ;  [1S97]  1  Ch.  11.  A  power  of  sale  may 
be,  and  usually  is,  included  in  the  trust  deed; 
13  L.  Q.  Rev.  424. 

Debenture  holders  with  a  floating  charge 
were  held  to  be  superior  to  execution  cred- 
itors ;    [1S91]  1  Ch.  627,  C.  A.  3  id.  260. 

As  to  spent  debentures,  see  Bonds.  See 
Covering  Deed.  See  Promissory  Notes  as 
to  sealed  debentures. 

See  Simonson,  Debentures. 

DEBENTURE   BONDS.     See  Debentures. 

DEBENTURE  STOCK.  An  issue  of  stock 
usually  irredeemable  and  transferable  in 
any  amount,  not  including  a  fraction  of  a 
pound. 

The  terminability  and  fixity  in  amount  of 
debentures  being  inconvenient  to  lenders  has 
led  to  their  being  in  many  cases  superseded 
by  debenture  stock.    Whart.  Lex. 

The  issue  of  debenture  stock  is  not  borrow- 
ing at  all ;  it  is  the  sale,  in  consideration  of 
a  sum  of  money,  of  the  right  to  receive  a  per- 
petual annuity ;  9  Ch.  D.  337  ;  Buckley,  Com- 
panies Acts  172 ;  and  none  the  less  so  if  re- 
deemable at  the  option  of  the  company,    id. 

DEBET  ET  DETINET  (Lat  he  owes  and 
withholds).  An  action  of  debt  is  said  to  be  in 
the  debet  et  detinet  when  it  is  alleged  that 
the  defendant  owes  and  unjustly  withholds 
or  detains  the  debt  or  thing  in  question.  The 
action  is  so  brought  between  the  contracting 
parties.     See  Detinet. 

DEBET  ET  SOLET  (Lat.  he  owes  and  is 
used  to).  Where  a  man  sues  in  a  writ  of 
right  or  to  recover  any  right  of  which  he  is 
for  the  first  time  disseised,  as  of  a  suit  at 
a  mill  or  in  case  of  a  writ  of  quod  permittat, 
he  brings  his  writ  in  the  debet  et  solet.  Reg. 
Orig.  144  a;   Fitzh.  N.  B.  122,  M. 

DEBET    SINE     BREVE    (Lat      He    owes 


without  declaration  filed).     Used  in  relation 
to  a  confession  of  judgment. 

DEBIT.  A  term  used  in  book-keeping,  to 
express  the  left  hand  page  of  the  ledger,  or 
of  an  account  to  which  are  carried  all  the 
articles  supplied  or  amounts  paid  on  the  sub- 
ject of  an  account,  or  that  are  charged  to 
that  account. 

The  balance  of  an  account  where  it  is 
shows  that  something  remains  due  to  the  par- 
ty keeping  the  account. 

An  amount  which  is  set  down  as  a  debt 
or  owing. 

DEBITA  LAICORUM  (Lat.).  Debts  of  the 
laity.  Those  which  may  be  recovered  in 
civil  courts. 

DEBITUM  IN  PR/ESENTI  SOLVENDUM 
IN  FUTURO  (Lat).  An  obligation  of  which 
the  binding  force  is  complete  and  perfect, 
but  of  which  the  performance  cannot  be  re- 
quired till  some  future  period. 

DEBT  (Lat.  debere,  to  owe;  debitum, 
something  owed).  In  Contracts.  A  sum  of 
money  due  by  certain  and  express  agreement. 
3  Bla.  Com.  154.  See  Fisher  v.  Consequa,  2 
Wash.  C.  C.  386,  Fed.  Cas.  No.  4,816. 

All  that  is  due  a  man  under  any  form  of 
obligation  or  promise.  Gray  v.  Bennett,  3 
Mete.  (Mass.)  522.  See  Appeal  of  City  of 
Erie,  91  Pa.  402. 

Active  debt.  One  due  to  a  person.  Used 
in  the  civil  law. 

Ancestral  debt.  One  of  an  ancestor  which 
the  law  compels  the  heir  to  pay.  Watkins  v. 
Holman,  16  Pet  (U.  S.)  25,  10  L.  Ed.  873; 
A.  &  E.  Encyc. 

Doubtful  debt.  One  of  which  the  payment 
is  uncertain.     Clef  des  Lois  Romaines. 

Fraudulent  debt.  A  debt  created  by  fraud 
implies  confidence  and  deception.  It  implies 
that  it  arose  out  of  a  contract,  express  or  im- 
plied, and  that  fraudulent  practices  were  em- 
ployed by  the  debtor,  by  which  the  creditor 
was  defrauded.  Howland  v.  Carson,  28  Ohio 
St  628. 

Hypothecary  debt.  One  which  is  a  lien 
upon  an  estate. 

Judgment  debt.  One  which  is  evidenced 
by  matter  of  record. 

Liquid    debt.     One   which   is   immediately 
and  unconditionally  due. 
Passive  debt.     One  which  a  person  owes. 
Privileged  debt.     One  which  is  to  be  paid 
before  others  in  case  a  debtor  is  insolvent. 
The  privilege  may  result  from  the  character 
of  the  creditor,  as  where  a  debt  is  due  to  the 
United  States;   or  the  nature  of  the  debt,  as 
funeral    expenses,     etc.       See    Preference; 
Privilege;  Lien;  Priority;  Distribution. 

Specialty.  A  debt  by  specialty  or  special 
contract  is  one  whereby  a  sum  of  money  be- 
comes, or  is  acknowledged  to  be,  due  by  deed 
or  instrument  under  seal;  2  Bla.  Com.  465; 
Probate  Court  for  Dist  of  Orleans  v.  Child, 
51  Vt  86. 


DEBT 


787 


DEBT 


A  debt  may  be  evidenced  by  matter  of 
record,  by  a  contract  under  seal,  or  by  a  sim- 
ple contract.  The  distinguishing  and  ; 
sary  feature  is  that  a  fixed  and  specific 
amount  is  owing  and  no  future  valuation  Is 
required  to  settle  it;  :'.  Bla.  Com.  154;  Mat- 
ter of  Denny,  2  Hill  (X.  V.)  220. 

See  Accokd  and  Satisfaction;  Bankrupt- 
ct;  Compensation;  Confusion;  Defeas- 
ance; Delegation;  Discharge  of  a  Con- 
tract: Extinction;  Extinguishment;  For- 
mer Recovery;  Lapse  of  Time;  Novation; 
Payment;   Release;  Rescission;  Set-Off. 

In   Practice.     A  form  oi  which   lies 

to  recover  a  sum  certain.    2  Greenl.  Ev.  27'J ; 
Andr.  Steph.  PL  77,  n. 

It  lies  wherever  the  sum  due  is  certain  or  ascer- 
tained in  such  a  manner  as  to  be  readily  reduced  to 
a  certainty,  without  regard  to  the  manner  in  which 
the  obligation  was  incurred  or  is  evidenced;  Crock- 
ett v.  Moore,  3  Sneed  (Tenn.)  145;  Lee  v.  Ga 
26  Miss.  621  ;  Home  v.  Semplc,  3  McLean,  150,  Fed. 
Cas.  No.  6,658 ;  Dullard  v.  Bell,  1  Mas.  243,  Fed. 
Cas.  No.  2,121;  U.  S.  v.  Claflin,  97  U.  S.  546,  24  L. 
Ed.   1082  ;    Baum  v.   Tonkin,   110   Pa.   569,   1  Atl.   535. 

It  is  thus  distinguished  from  assumpsit,  which  lies 
as  well  where  the  sum  due  is  uncertain  as  where  it 
is  certain,  and  from  covenant,  which  lies  only  upon 
contracts  evidenced  in  a  certain  manner. 

It  is  said  to  lie  in  the  debet  and  dctinet  (when  it 
is  stated  that  the  defendant  owes  and  detains)  or  in 
the  detinct  (when  it  is  stated  merely  that  he  de- 
tains). Debt  in  the  detinct  for  goods  differs  from 
detinue,  because  it  is  not  essential  in  this  action,  as 
in  detinue,  that  'the  specific  property  in  the  goods 
should  have  been  vested  in  the  plaintiff  at  the  time 
the  action  is  brought.    Dy.  24  b. 

It  is  used  for  the  recovery  of  a  debt  eo  nomine 
and  in  numero ;  though  damages,  which  are  in 
most  instances  merely  nominal,  are  usually  award- 
ed for  the  detention  ;    1  H.  Bla.  550  ;    Cowp.  588. 

The  action  lies  in  the  debet  and  detinct 
to  recover  money  due,  on  a  record  or  a  judg- 
ment of  a  court  of  record;  Salk.  109;  Eby 
v.  Burkholder,  17  S.  &  R.  (Pa.)  9;  Allen  v. 
Lyman,  27  Vt.  20;  Austin  v.  Townes,  10 
Tex.  24;  although  a  foreign  court;  Moore 
v.  Adie's  Adm'r,  18  Ohio  430;  Mclntire  v. 
Caruth,  3  Brev.  (S.  C.)  393 ;  Jordan  v.  Robin- 
son, 15  Me.  167;  Cole  v.  Driskell,  1  Blackf. 
(Ind.)  16;  Williams  v.  Preston,  3  J.  J.  .Mar. 
(Ky.)  600,  20  Am.  Dec.  179 ;  McKim  v.  Odom, 
12  Me.  94;  on  statutes  at  the  suit  of  the  par- 
ty aggrieved;  Vaughan  v.  Thompson,  15  111. 
39;  Morrison  v.  Bedell,  22  N.  H.  234;  Gar- 
man  v.  Gamble,  10  Watts  (Pa.)  3S2;  Israel 
v.  President,  etc.,  of  Town  of  Jacksonville, 
1  Scam.  (111.)  290;  Falconer  v.  Campbell,  2 
McLean,  19.".,  Fed.  Cas.  No.  4,620;  Reed  v. 
Davis.  8  Tick.  (Mass.)  514;  Chaffee  v.  U.  S., 
18  Wall.  (U.  8.)  516,  21  L.  Ed.  90S ;  or  a  com- 
mon informer ;  Lewis  v.  Stein,  16  Ala.  214, 
50  Am.  Dec.  177;  Sims  v.  Alderson,  8  Leigh 
(Va.)  479;  including  awards  by  a  statutory 
commission;  Knowles  v.  Inhabitants  of  Bast- 
ham,  11  Cush.  (Mass.)  -129;  on  specialties;  1 
Term  40;  Little  v.  Mercer,  9  Mo.  218;  Salter 
v.  Richardson,  37  B.  Monr.  (Ky.)  204;  Allen 
V.  R.  Co.,  32  N.  H.  440;  Nash  v.  Nash.  10 
ill.  79;  including  a  recognizance;  Dowlin  v. 
Standifer,    1    Hempst.    290,    Fed.    Cas.    No. 


4,041  a ;    Bentley    v.    Lyman,    21    Conn.    81 ; 

state  v.   Folsom,  26   M< 

People,  15  ill.  221 ; 

(.Mass.)   138;   Nesl  Itt   v. 

on  a  promissory  note; 

Ark.  165 ;  Loose  v.   .'   ■  on  a 

bill  of  exchange ;  Ho  th  v.  Mill 

I  Va.)  50 ;  on  simpU 
expiree  <  rardinei .  2 

clay  v.  Moore,  17  Ala.  634  ;  I 
Eumphr.  (Tenn.)  480;  although  the  i 
might    have    been    dJ  I    on    or    I 

the  day  oi  paj  men!  In  articles  of 

Eoung  v.  Hawkins,  t  Yerg.  (Tenn.)  171; 
or  Implied;  Bull.  X.  P.  167;  Van  D 
Blum.    18    Pick,    i  M 
582;  Thompson  v.  French,  10  Ye: 
452;  Houghton  v.  Stowell,  28  .Me.  215; 
lingham  v.  Skein,  1  Hempst.  181,  Fed. 
No.  3,912a;  Gray  v.  Johnson,  11  X.  H.  414; 
to   recover   a   specific   reward   off' 
borough  v.  Outcalt,  1  X.  J.   1  \n  ac- 

tion of  debt  is  the  proper  remedy  of  a  land- 
lord against   his  tenant   in   possession 
cover  a  statutory  penalty  for   willfully  cufc 
ting  trees  without  the  owner's  consenl  :  Sog- 
ers  v.   Brooks.   99  Ala.   31,    11    South, 
and  also  in   favor   of  the  beneficiaries  in   a 
certificate  of  membership  in  a  mutual  benefit 
association;  Abe  Lincoln   Mut.   Life  ft 
dent  Society  v.  Miller,  23  111.  App.  341;  but 
it  does  not  lie  on  a  decree  of  foreclosure, 
which    orders    the    money    secured    by    the 
mortgage  to  be  paid,  or  in  default  t' 
the  mortgaged  premises  to  be  sold  and  the 
proceeds  paid  into  court;  Burges  v.  Souther. 
15  R.    I.  202,  2  Atl.  441. 

It  lies  in  the  dctinet  for  goods;  Dy.  24  6; 
Dowlin   v.   Standifer,   1   Hempst.   290,    l'  : 
Cas.  Xo.  4,041a;  Snell  v.  Kirby,  8  Mo.  21.  22 
Am.  Dec.  450;  and  by  an  executor  for  money 
due   the   testator;    1    Wms.    Saund.    1; 
Brown's  Adm'r  v.  Brown,  10  B.  Monr.  (Ky.) 
247;    or  against  him   on  the  testator's 
tracts;  Childress  v.  Emory,  8  Wheat.  (U.  s 
642,  5  L.  Ed,  705. 

The  declaration,  when  the  action  is  found 
ed  on  a  record,  need  not  aver  consideration. 
When  it  is  founded  on  a  specialty,  it  must 
contain -the  specialty;  Huber  v.  Burke,  ll  S. 
&  R.  (Pa.)  238;  but  need  not  aver  considera- 
tion; Nash  v.  Nash,  L6  in.  7;';  Barrett  v. 
Carden,  65  Vt.  431,  26  Atl.  530,  36 
Rep.  876;  but  when  the  action  is  for  rent. 
the  deed  need  not  be  declared  on;  Gray  v. 
Johnson,  14  V  B.  414.  When  it  is  founded 
on  a  Simple  contract,  the  consideration  must 
be  averred;  and  a  liability  or  agreement, 
though  not  necessarily  an  express  promise 
to  pay,  must  be  staled:  2  B,  30. 

The  plea  of  nil  debet  is  th<  issue 

when  the  action  is  on  a  simple  contract,  on 
statutes,  or  wh  dalty  La  matter  of 

inducement    merely;     Stilson     v.     ToJ 
Mass.  521;  Minton  v.  Woodworth,  11  Johns. 
(N.   Y.)    474;   King  v.   Ramsay,   13    111.   619; 


DEBT 


788 


DEBTOR'S  SUMMONS 


McConnell  v.  Bank,  6  Ark.  250;  Dyer  v. 
Cleaveland,  18  Vt.  241;  U.  S.  v.  Cumpton, 
3  McLean  163,  Fed.  Cas.  No.  14,902;  Hyatt 
v.  Robinson,  15  Ohio  372;  Trustees  of  Dart- 
mouth College  v.  Clough,  8  N.  H.  22;  Clark 
v.  Mann,  33  Me.  26S;  Stipp  v.  Cole,  1  Ind. 
146;  Matthews  v.  Redwine,  23  Miss.  233. 
Non  est  factum  is  the  common  plea  when 
on  specialty,  denying  ■  the  execution  of  the 
instrument;  2  Ld.  Raym.  1500;  Chambers  v. 
Games,  2  G.  Greene  (la.)  320;  Brooks  v. 
Bobo,  4  Strobh.  (S.  C.)  38;  People  v.  Row- 
land, 5  Barb.  (N.  Y.)  449;  Brobst  v.  Welker, 
8  Pa.  467;  Utter  v.  Vance,  7  Blackf.  (Ind.) 
514;  Boynton  v.  Reynolds,  3  Mo.  79;  and 
nul  tiel  record  when  on  a  record,  denying 
the  existence  of  the  record ;  Mervin  v.  Kum- 
bel,  23  Wend.  (N.  Y.)  293;  Hall  v.  Williams, 

6  Pick.  (Mass.)  232,  17  Am.  Dec.  356.  As 
to  the  rule  when  the  judgment  is  one  of 
another  state,  see  Clark  v.  Mann,  33  Me. 
26S;  Williams  v.  Preston,  3  J.  J.  Marsh. 
(Ky.)  600,  20  Am.  Dec.  179;  Mills  v.  Duryee, 

7  Cra.  (U.  S.)  481,  3  L.  Ed.  411;  Town  of 
St.  Albans  v.  Bush,  4  Vt.  58,  23  Am.  Dec. 
246;  Lanning  v.  Shute,  5  N.  J.  L.  778; 
Clarke's  Adm'r  v.  Day,  2  Leigh  (Va.)  172; 
as  well  as  the  titles  Fobeign  Judgment,  Con- 
flict of  Laws. 

As  to  the  situs  of  a  debt  in  attachment 
and   garnishment  proceedings,   see  Lex  Rfj 

SlT.E. 

Other  matters  must,  in  general,  be  plead- 
ed specially ;  Hays  v.  Muir,  1  Ind.  174. 

The  judgment  is,  generally,  that  the  plain- 
tiff receive  his  debt  and  costs  when  for  the 
plaintiff,  and  that  the  defendant  receive  his 
costs  when  for  the  defendant;  Chapman  v. 
Wright,  20  111.  120;  Rutter  v.  State,  1  la. 
99;  Downs  v.  Ladd,  4  How.  (Miss.)  40.  It 
is  reversible  error  to  render  judgment  not 
only  for  the  debt  sued  on,  but  for  damages, 
as  in  assumpsit  and  for  interest  on  the  judg- 
ment; Reece  v.  Knott,  3  Utah  451,  24  Pac. 
T.")7.     See  Judgment. 

DEBTEE.  One  to  whom  a  debt  is  due; 
a  creditor :    as,  debtee  executor.    3  Bla.  Com. 

IS. 

DEBTOR.  One  who  owes  a  debt;  he  who 
may  be  constrained  to  pay  what  he  owes. 

DEBTOR'S  ACT,  1869.  The  statute  32  & 
33  Vict.  c.  62,  abolishing  imprisonment  for 
debt  in  England,  and  for  the  punishment  of 
fraudulent  debtors.  2  Steph.  Com.  159-164. 
(Not  to  be  confounded  with  the  Bankruptcy 
Act  of  1869.)    Mozl.  &  W.  Diet. 

DEBTOR'S   SUMMONS.       In   English   Law. 

A  summons  issuing  from  a  court  having  ju- 
risdiction in  bankruptcy,  upon  the  creditor 
proving  a  liquidated  debt  of  not  less  than 
£50,  which  he  has  failed  to  collect  after 
reasonable  effort,  stating  that  if  the  debtor 
fail,  within  one  week  if  a  trader,  and  with- 
in three  weeks  if  a  non-trader,  to  pay  or 
compound  for  the  sum  specified,  a  petition 


may  be  presented  against  him,  praying  that 
he  may  be  adjudged  a  bankrupt  Bkcy.  Act, 
1869,  s.  7;  Robson,  Bkcy.;  Mozl.  &  W.  Diet 

DECALOGUE.    The  ten  commandments. 

DECANATUS,  DECANIA,  DECANA  (Lat). 
A  town  or  tithing,  consisting  originally  of 
ten  families  of  freeholders.  Ten  tithings 
compose  a  hundred.  1  Bla.  Com.  114;  Med- 
ley, Orig.  Illus.  Eng.  Const  Hist. 

Decanatus,  a  deanery,  a  company  of  ten. 
Spelman,  Gloss. ;  Calvinus,   Lex. 

Decania,  Decana,  the  territory  under  the 
charge  of  a  dean. 

DECANUS  (Lat.).  A  dean;  an  officer 
having  charge  of  ten  persons.  In  Constan- 
tinople, an  officer  who  has  charge  of  the 
burial  of  the  dead.  Nov.  Jus.  43,  59;  Du 
Cange.  The  term  is  of  extensive  use,  being 
found  with  closely  related  meanings  in  the 
old  Roman,  the  civil,  ecclesiastical,  and  old 
European  law.  It  is  used  of  civil  and  eccle- 
siastical as  well  as  military  affairs.  There 
were  a  variety  of  decani. 

Decanus  monasticus,  the  dean  of  a  mon- 
astery. 

Decanus  in  majori  ecclesia,  dean  of  a 
cathedral  church. 

Decanus  militaris,  a  military  captain  of 
ten  soldiers. 

Decanus  episcopi,  a  dean  presiding  over 
ten  parishes. 

Decanus  Jrioorgi,  dean  of  a  fribourg,  tith- 
ing, or  association  of  ten  inhabitants.  A 
Saxon  officer,  whose  duties  were  those  of  an 
inferior  judicial  officer.  Du  Cange;  Spel- 
man, Gloss. ;   Calvinus,  Lex. 

DECAPITATION  (Lat.  de,  from,  caput,  a 
head).  The  act  of  beheading.  In  some  coun- 
tries a  method  of  capital  punishment  See 
Capital  Punishment. 

DECEDENT.     A  deceased  person. 

The  signification  of  the  word  has  become  more 
extended  than  its  strict  etymological  meaning. 
Strictly  taken,  It  denotes  a  dying  person,  but  is  al- 
ways used  in  the  more  extended  sense  given,  denot- 
ing any  deceased  person,  testate  or  intestate. 

See  Executobs  and  Administrators. 

DECEIT.  A  fraudulent  misrepresentation 
or  contrivance,  by  which  one  man  deceives 
another,  who  has  no  means  of  detecting  the 
fraud,  to  the  injury  and  damage  of  the  lat- 
ter. It  need  not  be  made  in  words,  if  the 
impression  be  made  on  the  mind  of  the  oth- 
er party,  upon  which  he  acts,  without  the 
exact  expression  in  words  of  the  understand- 
ing sought  to  be  created ;  17  C.  B.  n.  s.  482 ; 
Mizner  v.  Kussell,  29  Mich.  229.  Suspicion 
by  the  maker  that  his  statements  are  false 
is  the  legal  equivalent  of  knowledge  of  their 
falsity  and  fraudulency;  Shackett  v.  Bick- 
ford,  74  N.  H.  57,  65  Atl.  252,  7  L.  R.  A. 
(N.  S.)  646,  124  Am.  St.  Rep.  933. 

Fraud,  or  the  intention  to  deceive,  Is  the 
very  essence  of  this  injury ;  Stewart  v. 
Ranch  Co.,  128  U,  S.  383,  9  Sup.  Ct  101,  32 


DECEIT 


7S9 


DECEIT 


L.  Ed.  439;  for  if  the  party  misrepresenting 
was  himself  mistaken,  no  blame  can  attach 
to  him;  Poll.  Torts  :;.",:;;  Farmers'  Stock- 
Breeding  Ass'n  v.  Bcott,  53  Kan.  534,  36  Pac. 
•jTn;  Wachsmuth  v.  Wachsmuth,  45  111.  App. 
244.  The  representation  must  be  made  mala 
animo;  but  whether  or  not  the  party  is  him- 
self to  gain  by  it  is  wholly  Immaterial. 

It  may  be  by  the  deliberate  assertion  of 
a  falsehood  to  the  injury  of  another,  by  fail- 
ure to  disclose  a  latent  defect,  or  by  con- 
cealing an  apparent  defect;  but,  as  a  rule, 
mere  silence  on  the  part  of  one  party  to  a 
transaction  as  to  facts  which  are  important 
to  the  other  is  not  deceit,  if  he  is  under  DO 
obligation  to  disclose  them;  Big.  Torts  12; 
i         .  6  H.  L.  377. 

Where  the  seller  asked  the  buyer  whether 
there  was  any  news  (of  the  treaty  of  Peace 
in  1815)  that  would  'enhance  the  price  of 
tobacco  and  the  buyer  remained  silent,  it 
should  have  gone  to  the  jury  to  say  whether 
any  imposition  was  practised,  the  court  say- 
ing that  while  the  buyer  need  not,  as  matter 
of  law,  communicate  special  information 
known  only  to  him,  he  must  take  care  not 
to  impose  on  the  seller;  Laidlaw  v.  Organ,  2 
Wheat.  178,  -1  L.  Ed.  214.  In  U.  S.  v.  Bell  Tel- 
ephone Co.,  128  U.  .S.  323,  9  Sup.  Ct  90,  32 
L.  Ed.  450,  it  was  held  that  if,  with  intent 
to  deceive,  either  party  to  a  contract  of 
sale  conceals  or  suppresses  a  material  fact 
which  he  is  in  good  faith  bound  to  disclose, 
that  is  evidence  of  or  equivalent  to  a  false 
representation.  General  assertions,  by  a  ven- 
dor or  lessor,  that  the  property  offered  for 
sale  or  to  be  leased  is  valuable  or  very  valu- 
able, although,  such  assertions  turn  out  to 
be  untrue,  are  not  misrepresentations 
amounting  to  deceit,  nor  are  they  to  be  re- 
garded as  statements  of  existing  facts,  upon 
which  an  action  of  deceit  may  be  based, 
but  rather  as  expressions  of  opinions  or  be- 
liefs; Lehigh  Zinc  &  Iron  Co.  v.  Bamford, 
150  U.  S.  665,  14  Sup.  Ct.  219,  37  L.  Ed. 
1215;  or  as  prophecies  as  to  financial  pros- 
perity; Kimber  v.  Young,  137  Fed.  744,  70 
C.  C.  A.  178;  I  Joining  v.  Darling,  148  Mass. 
504.  20  N.  E.  107.  2  L.  R.  A.  743. 

The  party  deceived  must  have  been  in  a 
situation  such  as  to  have  no  means  of  de- 
tecting the  deceit.  But  see  Carpenter  v. 
Wright,   52   Kan.  221,   34   Pac.   70S. 

A  person  cannot  sustain  an  action  for  de- 
ceit where  no  harm  comes  to  him  ;  Alden  v. 
Wright,  47  Minn.  2L'."i,  49  N.  \V.  707;  Roonie 
v.  Jennings,  2  Misc.  257,  21  X.  Y.  Supp.  938, 
nor  can  he  where  he  does  not  rely  on  the 
misrepresentations;  Fowler  v.  Mct'aun,  86 
Wis.  427,  56  N.  W.  1085. 

In  order  to  constitute  deceit  it  is  neces- 
sary either  that  the  false  representations 
should  be  known  by  the  person  making  them 
to  be  untrue,  or  that  he  should  have  no  rea- 
son to  believe  them  true.  Mere  ignorance 
.of  their  falsity  is  no  excuse:  Burge  v.  Stro- 
berg,  42  Ga.  S3;  see  Carondelet  Iron  Works 


v.  Moore,  78  111.  65;  H^:<a  v.  Young,  59  Ind. 
::7'.>:  Cooper  v.  Lovering,  mi;  Mass.  77;  B 
v.  Knapp,  28  Mich.  53  ;  Newell  v.  Horn,  45 
N.  II.  422;   Long  v.  Warren,  68  X.  v 
Deceit  may  be  committed  not  only  with  the 
careful  intention  of  one  who  knows  what  he 
^   to   be  true  or   false,    but    also   with 
the  reckless   intention  of  one 
know  what  he  represents  to  1 
but  who.  tor  one  reason  or  another,  i>  will- 
ing that  his  recklea  should 

eved ;  Btimson  v.  Helps,  '.•  I 
Pac.  2'.)ii :  Smith  v.  Richards,  i::  i' 
26,   10   L    Ed.   -12:    Busterud   v.   Farrington, 
36  Minn.  329,  31  X  W.  360. 

The  mere  expression  of  opinion  is  m 
■  •eit,  though  untrue  and  made  in  most  posi- 
tive langus  i>.  51  ;  2  East  92;  Credle 
v.  Swindell,  63  X  O.  305;  Hazard  v.  Irwin, 
18  Pick.  (Mass.)  or.;  but  the  expression  of 
opinion  as  knowledge  may  render  one  liable 
for  fraud;  Cabot  v.  Christie,  42  Yt.  121,  1 
Am.  Rep.  313;  or  where  the  means  of  form- 
ing a  correct  opinion  are  within  the  reach  of 
one  party  only;  lledin  v.  Medical  &  Surgical 
Institute.  02  Minn.  I  Hi,  64  X  W.  158,  35  L. 
R.  A.  117,  .".I  Am.  St.  Rep.  628;  and  the  rule 
has  been  avoided  by  the  court's  finding  in 
a  statement  of  opinion  some  Implied  repre- 
sentation of  fact;  Spead  v.  Tomlinson,  7:; 
N.  11.  40,  59  Atl.  376,  68  L.  R.  A.  432.  Thus 
a  cattle-dealer  who  expresses  an  apparent 
opinion  as  to  the  weight  of  cattle  he  d< 
to  sell,  knowing  it  to  be  untrue,  is  guilty  of 
deceit;  Birdsey  v.  Butterfleld,  34   Wis.  02. 

Though  false  representations  as  to  the 
value  of  land  are  not  alone  sufficient  I  i 
tain  an  action  for  damages,  yet  if  made  in 
connection  with  others  as  to  the  net  revenues 
derived,  they  are  BuCfiCient  to  support  such 
an  action;  Henderson  v.  HenshalL  54  Fed. 
320.  4  C.  0.  A.  :;.",T;  and  an  action  for  false 
representation  as  to  title,  in  a  sale  of  lands, 
may  be  maintained  though  tl.  a  tains 

no   covenants;    Barnes    v.    By.   Co.,   5  I 
87,  4  C.  C.  A.  199. 

An  action  for  deceit  can  only  be  based 
upon  the  misrepresentation  of  matter 
fact,  not  of  matters  of  law;  unless  the  party 
who  mad;'  the  misrepresentation  did  it  with 
knowledge  both  of  the  law  and  of  the  ether's 
Ignorance  of  it;  Townsend  v.  Oowles,  .".l  Ala. 
434;  Dillman  v.  Nadlehoffer,  119  ill.  567, 
7  X.  E.  88;  Burt  v.  Bowies.  69  I  ml.  1;  L. 
R.  4  Ch.  D.  702;  Moreland  v.  Atchison,  19 
Tex  303;  Upton  v.  Tribilcock,  91  U.  8.  45, 
23  I..  Ed.  203. 

If  the  party  complaining  of  misrepr.  - 
tions  had  the  same  sources  of  inforn 
as  the  one  who  made  them,  he  must  avail 
himself  of  his  means  of  knowledge,  or  he 
cannot  recover:  Slaughter  v.  Gerson,  13 
Wall.  (U.  s.)  379,  20  L.  Ed.  ''.27;  Brown  v. 
Leach,  107  Mass.  364;  Pigutt  v.  Graham, 
18  Wash.  348,  93  Pac.  135,  11  L.  R,  A.  (N.  S.) 
1176;  Farnsworth  v.  Duffner,  142  U.  S.  4.",, 
12   Sup.  CL   164,  35  L.    Ed.  931;    Warner  v. 


DECEIT 


790 


DECEIT 


Benjamin,  89  Wis.  290,  62  N.  W.  179.  A 
clause  in  a  contract  providing  that  the  plain- 
tiff should  verify  defendant's  plans  does  not 
as  a  matter  of  law  bar  the  plaintiff's  recov- 
ery; but  whether  or  not  the  plaintiff  acted 
in  reliance  on  the  defendant's  plans  is  a 
question  for  the  jury ;  [1907]  A.  C.  351. 

But  a  contracting  party  may  rely  upon 
express  statements  of  fact,  the  truth  of 
which  is  known  or  presumed  to  have  been 
known  to  the  other  party,  even  where  the 
means  of  information  are  open  to  him;  Big. 
Torts  26 ;  especially  when  the  representation 
has  a  natural  tendency  to  prevent  investiga- 
tion or  is  made  the  basis  of  the  contract; 
id,.;  where  one  contracting  party  has  a  men- 
tal or  physical  infirmity,  or  where  the  par- 
ties do  not  stand  upon  an  equal  footing,  the 
duty  of  investigating  the  truth  of  statements 
may  be  less ;  id.  2S. 

The  plaintiff  must  also  have  acted  upon 
the  representation,  and  sustained  injury  by 
so  doing;  4  H.  &  N.  225;  Wells  v.  Water- 
house,  22  Me.  131;  Lindsey  v.  Lindsey,  34 
Miss.  432;  Phipps  v.  Buckman,  30  Pa.  401; 
Enfield  v.  Colburn,  63  N.  H.  21S;  and  they 
must  have  been  made  to  him ;  Iasigi  v. 
Brown,  17  How.  (U.  S.)  183,  15  L.  Ed.  208; 
Lindsey  v.  Lindsey,  34  Miss.  432 ;  Hunnewell 
v.  Duxbury,  154  Mass.  2S6,  28  N.  E.  267,  13 
L.  B.  A.  733.  One  who  purchases  stock  in 
the  market,  upon  the  faith  of  a  prospectus 
received  from  persons  not  connected  with  the 
corporation,  cannot  enforce  a  liability  against 
the  directors  for  false  representations  there- 
in; L.  R.  6  H.  L  377;  but  where  a  prospec- 
tus is  put  out  by  a  company  to  sell  its  stock, 
any  one  of  the  public  may  act  on  it;  Big. 
Torts  33. 

The  false  representations  upon  which  de- 
ceit is  predicated  must  also,  in  order  to  sup- 
port the  action,  be  material  and  relevant, 
and  be  the  determining  factor  of  the  trans- 
actions; L.  R.  2  Ch.  611;  5  De  G.,  M.  &  G. 
126 ;  Bond  v.  Ramsey,  89  111.  29 ;  Noel  v.  Hor- 
ton,  50  la.  687;  Teague  v.  Irwin,  127  Mass. 
217 ;  Miller  v.  Barber,  66  N.  Y.  558.  It  must 
appear  that  the  fraud  was  an  inducing  cause 
of  the  contract;  9  App.  Cas.  190. 

Where  the  effect  of  the  misrepresentations 
was  to  bring  the  parties  into  relations  with 
each  other,  express  evidence  of  an  intent  to 
defraud  is  unnecessary ;  but  where  by  false 
representations  one  suffers  damage  in  a 
transaction  with  a  third  person,  there  must 
be  express  evidence  that  the  party  making 
the  representation  intended  it  to  be  acted 
on,  or  that  the  plaintiff  was  justified  in  as- 
suming that  he  so  intended ;  Big.  Torts  31. 
It  is  sufficient  if  the  representation  was 
made  with  the  direct  intent  that  it  should 
be  communicated  to  the  plaintiff,  or  to  a 
class  of  which  he  was  one ;  L.  R.  6  H.  L.  377. 

In  order  to  sustain  an  action  for  deceit 
there  must  be  proof  of  fraud  and  nothing 
short  of  that  will  suffice.  Secondly.  Fraud 
is  proved  when  it  is  shown  that  a  false  rep- 


resentation has  been  made  (1)  knowingly,  or 
(2)  without  belief  in  its  truth,  or  (3)  reck- 
lessljr  careless  whether  it  be  true  or  false; 
Lord  Herschell,  in  Derry  v.  Peek,  14  App. 
Cas.  337.  Although  treating  the  second  and 
third  as  distinct  cases,  he  says:  "I  think  the 
third  is  but  an  instance  of  the  second,  for 
one  who  makes  a  statement  under  such  cir- 
cumstances can  have  no  real  belief  of  the  • 
truth  of  what  he  states.  To  prevent  a  false 
statement  being  fraudulent,  there  must,  I 
think,  always  be  an  honest  belief  in  its 
truth  and  this  probably  covers  the  whole 
ground,  for  one  who  knowingly  alleges  that 
which  is  false  has  obviously  no  such  honest 
belief.  Thirdly.  If  fraud  be  proved,  the  mo- 
tive of  the  guilty  person  is  immaterial.  It 
matters  not  that  there  was  no  intention  to 
cheat  or  to  injure  the  person  to  whom  the 
statement  was  made."*  In  that  case  (Derry 
v.  Peek)  a  special  act  incorporating  a  tram- 
way company  provided  that  carriages  might 
be  moved  by  animal  power  and,  with  the 
consent  of  the  Board  of  Trade,  by  steam 
power.  The  directors  issued  a  prospectus 
containing  a  statement  that  by  their  special 
act  the  company  had  a  right  to  use  steam 
power,  which  statement  was  made  in  the 
honest  belief  that  it  was  true,  and  the  Board 
of  Trade  having  refused  their  consent  to  the 
use  of  steam  power,  persons  who  had  taken 
shares  on  the  faith  of  the  statement  brought 
an  action  of  deceit  against  the  directors;  the 
House  of  Lords,  reversing  the  Court  of  Ap- 
peal, held  that  the  defendants  were  not 
liable. 

In  an  action  of  deceit  the  plaintiff  must 
prove  that  the  untrue  statement  of  the  de- 
fendant was  made  with  a  fraudulent  intent ; 
[1912]  A.  C.  1S6.  It  is  not  sufficient  that 
there  is  blundering  carelessness,  however 
gross,  unless  there  is  willful  recklessness ; 
[1S91]  2  Ch.  449.  Recklessly  making  a  state- 
ment, intending  it  to  be  acted  upon,  not  car- 
ing whether  it  is  true  or  false,  may  be  said 
to  show  that  a  man  has  a  wicked  mind  and 
is  acting  fraudulently;  [1S93]  1  Q.  B.  491, 
Lord  Esher,  M.  R.  His  mind  is  wicked  not 
because  he  is  negligent,  but  because  he  Is 
dishonest  in  not  caring  about  the  truth  of 
his  statement ;  id.x  per  Bowen,  L.  J. ;  Shack  - 
ett  v.  Bickford,  74  N.  H.  57,  65  Atl.  252,  7 
L.  R.  A.  (N.  S.)  646,  124  Am.  St.  Rep.  933; 
the  grounds  of  belief  and  the  means  of 
knowledge  in  possession  of  the  person  mak- 
ing the  statement  are  to  be  considered  in  de- 
termining the  honesty  of  the  belief;  Hind- 
man  v.  Bank,  112  Fed.  931,  50  C.  C.  A.  623, 
57  C.  C.  A.  108. 

Derry  v.  Peek  was  followed  in  Kountze  v. 
Kennedy,  147  N.  Y.  124,  41  N.  E.  414,  29 
L.  R.  A.  360,  49  Am.  St.  Rep.  651,  where  it 
was  held  that  where  an  act  is  attributable 
to  an  honest  belief,  a  fraudulent  intent  is 
lacking  and  a  charge  of  deceit  fails.  In 
Watson  v.  Jones,  41  Fla.  241,  25  South.  678,^ 
the  leading  English  case  was  not  followed; 


DECEIT 


791 


DECEIT 


it  was  there  bold  that  the  defendant's  situa- 
tion or  menus  of  knowledge  made  it  his  duty 
to  know;  to  the  same  effect,  .Scale  v.  r 
70  Tex.  283,  7  S.  W.  742,  8  Am.  St.  Hep.  B92; 
Monroe  v.  Pritchett,  10  Ala.  785,  GO  Am.  Dec. 
203;  Jordan  v.  Pickett,  78  Ala.  331;  Johnson 
v.  Gulick,  40  Neb.  817,  05  N.  W.  883,  50  Am. 
St.   Rep.   629. 

There  may  be  a  duty  to  use  care  in  the 
accuracy  of  representations  where  the  plain- 
tiffs are  reasonable  in  relying  upon  them 
and  the  defendants  knew  that  they  would  do 
so  and  would  be  damaged  If  such  rep 
tations  were  false;  Harriott  v.  Plimpton,  100 
Mass.  585,  44  N.  E.  992;  Edwards  v.  Lamb, 
69  N.  H.  599,  -15  Atl.  480,  50  L.  11.  A.  100; 
L.  R.  5  Exch.  1. 

As  society  becomes  more  complex  and  the 
consequences  of  negligence  more  far  reach- 
ing, the  obligation  of  using  care  becomes 
stricter  in  morals,  and  will,  have  to  become 
stricter  in  law,  notwithstanding  Derry  v. 
Peek  ;  7  L.  Q.  R,  107.  See  14  llarv.  L.  R.  184, 
as  to  liability  for  the  negligent  use  of  lan- 
guage. 

In  Nash  v.  Trust  Co.,  103  Mass.  574,  40  N. 
E.  1030,  28  L.  It.  A.  753,  47  Am.  St.  Rep.  489, 
it  was  held  that  a  defendant  who  had  writ- 
ten a  letter  reasonably  to  be  understood  as 
warranting  a  title,  might  show  that  the  let- 
ter was  intended  to  convey  another  meaning. 
Field,  GL  J.,  and  Holmes,  J.,  dissented,  ar- 
guing, as  does  Sir  Frederic  Pollock  in  5  L. 
Q.  R.  410,  that  a  man  should  be  bound  by 
a  reasonable  interpretation  of  his  words 
when  he  knows  others  will  act  upon  them. 
See  9  Harv.  L.  Rev.  214. 

One  who  makes  a  representation  positive- 
ly, without  knowing  whether  it  is  false  or 
true,  is  liable  for  deceit;  L.  R.  7  H.  L.  102; 
Stone  v.  Covell,  29  Mich.  359. 

To  tell  half  the  truth  and  to  conceal  the 
other  half,  amounts  to  a  false  statement, 
and  differs  in  no  respect  from  the  « 
false  representations;  Mitchell  v.  McDougall, 
02  111.  501 ;  Stewart  v.  Kanche  Co.,  128 
383,  3S8,  9  Sup.  Ct.  101,  32  L.  Ed.  439;  Wil- 
liams v.  Spurr,  24  Mich.  335;  L.  R.  0  IE  E. 
403;  Mallory  v.  Leach,  35  Vt.  150,  82  Am. 
Dec.  625. 

An  action  of  tort  for  deceit  in  the  sale 
of  property  does  not  lie  for  false  and  fraud- 
ulent representations  concerning  profits  that 
may  be  made  from  it  in  the  future;  Pedrick 
v.  Porter,  5  Allen  (Mass.)  324. 

While  an  honest  belief  in  the  truth  of  rep- 
resentations is  a  defence  to  an  action  for  de- 
ceit at  common  law,  it  is  no  defence  to  a 
bill  in  equity  to  set  aside  the  transaction; 
7  Beav.  140;  Seeley  v.  Reed,  25  Fed.  361; 
Kyle  v.  Kavanagh,  103  Mass.  :;r>0,  4  Am. 
Rep.  500.  It  is  also  a  ground  for  objecting 
to  the  enforcement  of  the  contract,  and 
even  for  a  rescission  of  the  contract  upon 
the  ground  of  mistake;  Big.  Torts  2.".. 

Private  corporations  are  held  liable  for 
the  wrongful  acts  and  neglect  of  their  agents 


or  servants,  dune  in  the  course  of  their  em- 
ployment;  Lamm  v.  Homest  .,  49 
Ml.  241,  33  Am.  Rep.  246.  E.  1  the 
rule  is  that  if  the  person  has  i  een  induced 
to  purchase  shares  of  a  corp  i  mis- 

iiiatioiis    of    its   directors    a. 
damage  thereby,  he  must  bring 
deceit    against   such   dirt 
while  in  the  U.   S.  it  seems  to   be   tbe   rule 
that  a   corporation    may    be   sued    in   such 

.    Fogg   v.   Griffin,    2    Allen 
Peebles  v.  Guano  Co.,' 77  N.  C.  2:;:;,  24   Am. 
Rep.    117;  ZabrisMe  v.  R.  Co.,  -:;  :: 

l,  lo  E.  Ed  488;  Planters'  Rice-Mill 
Co.  v.  Olmstead,  78  Ga.  586,  •':  8.  C.  <E7; 
Moran  v.  Miami  County,  2  Black  (U.  S.)  7U2, 
17  E.  Ed.  342;  Kennedy  v.  McKay,  4;;  N.  J. 
L.  288,  39  Am.  Rep.  581.  "If  the  director  of 
a  company  puts  shares  forth  into  the  world, 
and  deliberately  adopts  a  scheme  of  false- 
hood and  fraud,  the  effect  of  which  is  that 
parties  buy  the  snares  in  consequence  of  the 
tod,"  the  action  for  deceit  lies;  Pol- 
lock, C.  B.,  in  4  II.  &  N.  538;  2  Q.  E.  D.  48. 
See  also  2  M.  &  YV.  519;  3  B.  &  Ad.  114. 

The  general  principles  on  which  the  right 
of  action  for  deceit  is  based  are  thus  stated 
in  Webb's  Poll.  Torts  355: 

"To  create  a  right  of  action  for  deceit 
there  must  be  a  statement  made  by  the  de- 
fendant, or  for  which  he  is  answerable  as 
principal,  and  with  regard  to  that  statement 
all  the  following  conditions  must  concur: 

"It  is  untrue  in  fact. 

"The  person  making  the  statement,  or  the 
person  responsible  for  it,  either  knows  it  to 
be  untrue,  or  is  culpably  Ignorant  (that  is, 
recklessly  and  consciously  ignorant)  whether 
it  be  true  or  not. 

"It  is  made  to  the  intent  that  the  plaintiff 
shall  act  upon  it,  or  in  a  manner  apparently 
litted  to  induce  him  to  act  upon  it. 

"The  plaintiff  does  act  in  reliance  on  the 
statement  in  the  manner  contemplated  or 
manifestly  probable,  and  thereby  sutlers 
damage. 

"There  is  no  cause  of  action  without  both 
fraud  and  actual  damage,  or  the  damage  is 
the  gist  of  the  action. 

"And  according  to  the  general  principles 
of  civil  liability,  the  damage  must  be  the 
natural  and  probable  consequence  of  the 
plaintiff's  action  on  tbe  faith  of  the  defend- 
ant's statement. 

"The  statement  must  be  in  writing  and 
signed  in  one  class  of  eases,  namely,  wl 
amounts  to  a  guaranty;  hut  this  requirement 
is  statutory,  and  as  it  did  not  apply  to  the 
court  of  chancery,  does  not  seem  to  apply  to 
the  high  court  of  justice  in  its  equitable 
jurisdiction." 

The  remedy  for  a  deceit,  unless  the  right 
of  action  has  been  suspended  or  dischi 
is  by  an  action  of  trespass  on  the  case.  The 
old  writ  of  deceit  was  brought  for  acknowl- 
edging a  tine,  or  the  like,  in  another  name, 
and,   this  being  a  perversion   of   law  to  an 


/ 


DECEIT 


792 


DECEIT 


evil  purpose  and  a  high  contempt,  the  act 
was  laid  contra  pacem,  and  a  tine  imposed 
upon  the  offender.  Bee  Brooke,  Abr.  Dis- 
ceit ;  Viner,  Abr.  Disceit. 

When  two  or  more  persons  unite  in  a  de- 
ceit upon  another,  they  may  be  indicted  for 
a  conspiracy.  See,  generally,  1  Rolle,  Abr. 
106;  Com.  Dig.;  1  Viner,  Abr.  560;  8  id.  490; 
Bigelow,  Torts  9;  Cooley,  Torts  554. 

It  has  been  held  that  an  action  will  not 
lie  for  fraudulent  misrepresentations  of  a 
vendor  of  real  estate  as  to  the  price  he  paid 
therefor;  Mooney  v.  Miller,  102  Mass.  217; 
Schurnaker  v.  Mather,  133  N.  Y.  590,  30  N.  E. 
755;  Wilkinson  v.  Clauson,  29  Minn.  91,  12 
N.  W.  147;  Hartman  v.  Flaherty,  80  Ind. 
472;  nor  ordinarily  for  false  statements 
as  to  value  of  stock ;  Ellis  v.  Andrews,  56  N. 
Y.  S3,  11  Am.  Rep.  379;  Boulden  v.  Stil- 
well,  100  Md.  543,  60  Atl.  609,  1  L.  R.  A.  (N. 
S.)  25S,  nor  for  a  false  certificate  of  classi- 
fication of  a  sailing  yacht;  60  L.  J.  Q.  B.  526; 
nor  a  representation  that  a  stallion  would 
not  produce  sorrel  colts;  Scroggin  v.  Wood, 
87  la.  497,  54  N.  W.  437;  nor  generally  for 
a  broken  promise ;  Fenwick  v.  Grimes,  5  Cra. 
C.  C.  603,  Fed.  Cas.  No.  4734;  Dickinson  v. 
Atkins,  100  111.  App.  401;  Cerny  v.  Paxton 
&  Gallagher  Co.,  78  Neb.  134,  110  N.  W.  882, 
10  L.  R.  A.  (N.  S.)  640;  Curdy  v.  Berton,  79 
Cal.  425,  21  Pac.  858,  5  L.  R.  A.  1S9,  12  Am. 
St.  Rep.  157.  In  Harrington  v.  Rutherford, 
3S  Fla.  321,  21  South.  283,  the  rule  was  fol- 
lowed, though  the  promise  was  broken  with- 
out excuse.  A  fraudulent  representation, 
to  vitiate  a  contract  induced  by  it,  is  a  rep- 
resentation of  a  past  or  existing  fact,  but 
a  promise  is  not  a  representation,  and,  when 
not  a  part  of  the  contract,  will  not  affect  it ; 
Estes  v.  Shoe  Co.,  155  Mo.  577,  56  S.  W.  316; 
and  there  is  a  distinction  between  a  repre- 
sentation of  an  existing  fact  which  is  un- 
true, and  a  promise  to  do  or  not  to  do 
something  in  the  future.  In  order  to  avoid 
a  contract,  the  former  must  be  relied  upon ; 
Sleeper  v.  Wood,  60  Fed.  888,  9  C.  C.  A.  289 ; 
McConnell  v.  Pierce,  116  111.  App.  103;  Love 
v.  Teter,  24  W.  Va.  741.  If  deceit,  in  order 
to  be  actionable,  must  relate  to  existing  or 
past  facts,  it  is  evident  that  a  promise  made 
in  the  course  of  negotiations,  if  never  per- 
formed, is  not  of  itself  either  fraud  or  the 
evidence  of  fraud;  Hubbard  v.  Long,  105 
Mich.  442,  63  N.  W.  644.  Many  cases  hold 
that  a  promise  made  without  intent  to  per- 
form, and  with  the  secret  intent  not  to  per- 
form, is  fraudulent,  and  that  an  action  of 
deceit  will  lie;  Traber  v.  Hicks,  131  Mo.  ISO, 
32  S.  W.  1145;  Dowd  v.  Tucker,  41  Conn. 
197;  Cerny  v.  Paxton  &  Gallagher  Co.,  78 
Neb.  134,  110  N.  W.  8S2,  10  L.  R.  A.  (N.  S.) 
640.  A  promise  to  do  an  act  in  the  future 
certainly  carries  with  it  a  representation  of 
present  intention  to  perform ;  see  9  Harv. 
L.  Rev.  424;  and  that  "a  representation  of 
present  intention  is  a  statement  of  fact  has 
rarely    been    disputed    since   Bowen,    L.   J., 


declared  in  L.  R.  29  Ch.  Div.  459,  that  'the 
state  of  a  man's  mind  is  as  much  a  fact  as 
the  state  of  his  digestion.'  If,  then,  this 
misrepresentation  of  a  present  fact  is  ac- 
companied by  the  other  elements  of  deceit, 
it  seems  clear,  on  principle,  that  the  action 
should  be  allowed;"  see  9  Harv.  L.  Rev.  424; 
Bigelow,   Fraud  484. 

It  is,  too,  generally  held  that  a  precon- 
ceived design  in  a  buyer  not  to  pay  for  the 
goods  is  such  fraud  as  will  vitiate  the  sale; 
Stewart  v.  Emerson,  52  N.  H.  301.  The  real 
fraud  is  the  express  or  implied  false  repre- 
sentation of  an  intention  to  pay;  Ayres  v. 
French,  41  Conn.  142;  Chicago,  T.  &  M.  C. 
Ry.  Co.  v.  Titterington,  84  Tex.  218,  19  S. 
W.  472,  31  Am.  St.  Rep.  39;  Goodwin  v. 
Home,  60  N.  H.  4S5;  Wilson  v.  Eggleston, 
27  Mich.  257 ;  Gross  v.  McKee,  53  Miss.  536. 

It  has  been  held  that  an  action  for  de- 
ceit would  lie  for  breach  of  promise  of 
marriage;  Pollock  v.  Sullivan,  53  Vt.  507, 
38  Am.  Rep.  702,  where  the  defendant  was 
married  at  the  time.  An  action  for  deceit 
will  lie  against  one  who  fraudulently  induces 
a  woman  to  enter  into  a  void  marriage  re- 
lation with  him,  by  assurances  that  an 
existing  marriage  with  another  is  void : 
Sears  v.  Wegner,  150  Mich.  388,  114  N.  W. 
224,  14  L.  R.  A.  (N.  S.)  819. 

"Treating  a  promise  to  perform  some  act 
in  the  future  as  a  statement  of  intention, 
and  treating  intention  as  an  existing  fact,  it 
follows  that  if  at  the  time  the  promise  was 
made  there  was  an  intention  to  perform, 
subsequent  non-performance  would  constitute 
fraud;  while,  on  the  other  hand,  if  at  the 
time  the  promise  was  made  no  such  inten- 
tion existed  there  would  be  a  false  repre- 
sentation of  a  material  fact;"  see  57  Am.  L. 
Reg.  325. 

False  representations  concerning  the  fi- 
nancial responsibility  of  another,  made  for 
the  purpose  of  procuring  him  credit,  neg- 
ligently and  carelessly,  without  investiga- 
tion, when  investigation  would  disclose  their 
falsity,  are  held  to  imply  a  fraudulent  intent 
and  are  actionable;  Nevada  Bank  of  San 
Francisco  v.  Bank,  59  Fed.  338;  but  not 
when  made  by  a  friendly  adviser  acting 
without  compensation;  Knight  v.  Rawlings, 
205  Mo.  412,  104  S.  W.  38,  13  L.  R.  A.  (N. 
S.)  212,  12  Ann.  Cas.  325. 

In  an  action  of  deceit  in  inducing  plaintiff 
by  false  representations  to  take  an  assign- 
ment of  a  lease  executed  by  one  who  has  no 
title  to  the  land,  no  offer  of 'restitution  need 
he  made;  Cheney  v.  Powell,  S8  Ga.  629,  15 
S.  E.  750.  But  one  who  seeks  to  rescind  a 
contract  of  sale  because  of  fraud,  but  re- 
tains the  property  so  sold,  cannot  maintain 
an  action  for  deceit;  Roome  v.  Jennings,  2 
Misc.  257,  21  N.  Y.  Supp.  938;  Shappirio  v. 
Goldberg,  192  U.  S.  232,  24  Sup.  Ct.  259,  48 
L.  Ed.  419;  Schagun  v.  Mfg.  Co.,  162  Fed. 
209,  89  C.  C.  A.  1S9;  St.  John  v.  Hendrick- 
son,  81  Ind.  350. 


DECEIT 


793 


DECFM  TALES 


As  to  a  principal's  liability  for  an  agent's 
deceit,  where  there  has  been  no  authoriza- 
tion, express  or  implied,  there  are  numerous 
conflicting  decisions.  In  19  Harv.  L.  Rev. 
391.  it  is  said  the  question  commonly  arises 
in  litigation  for  damages  caused  by  the  over- 
issue of  stock  certificates,  or  by  the  fraudu- 
lent issue  of  bills  of  lading.  In  these  crises 
there  is  no  apparent  authority  given  by  the 
principal  to  do  the  acts  complained  of.  Yet 
some  cases"  have  allowed  a  recovery  on  the 
ground  that  the  agent  bad  apparent  author- 
ity by  his  own  representations,  so  that  the 
principal  is  estopped  to  deny  absence  of 
authority.  The  English  doctrine,  followed 
by  the  supreme  court  in  the  case  of  bills  of 
lading  and  approved  of  in  the  case  of  fraudu- 
lent issue  of  stock,  denies  liability  because 
of  the  absence  of  any  authority  whatever 
in  the  agent;  Robertson  v.  Salomon,  130  U. 
S.  415,  9  Sup.  Ct.  559,  32  L.  Ed.  995.  As. 
however,  the  act  complained  of  is  not  con- 
tractual in  its  nature,  but  tortious,  the  ques- 
tion of  liability  should  depend,  not  upon 
authority  conferred  or  apparently  confer- 
red, but  solely  on  whether  the  agent  is  act- 
ing in  the  course  of  his  employment — the 
ordinary  rule  in  cases  of  tort.  "The  diffi- 
culty, then,  is  to  determine  whether  the 
agent  is  in  fact  acting  within  the  scope  of 
his  employment.  In  the  case  of  the  over- 
issue of  stock,  it  would  appear  to  be  plainly 
the  duty  of  the  agent  to  give  just  such  in- 
formation as  that  upon  which  the  holder 
of  the  spurious  stock  has  relied,  since  one 
of  the  chief  purposes  for  which  a  corpora- 
tion is  organized  is  to  enable  the  shares  to 
be  transferred  freely";  19  Harv.  L.  Rev.  391. 
"In  view  of  the  wide-spread  use  of  the  bill 
of  lading  as  a  symbol  of  property,  it  seems 
better  to  regard  it  as  analogous  to  a  nego- 
tiable instrument,  relied  upon  by  third  par- 
ties in  much  the  same  way  as  stock  certif- 
icates ;"  id. 

In  Cornfoot  v.  Fowke,  6  M.  &  W.  358,  it 
was  held  that  where  an  agent  unknowingly 
makes  an  untrue  statement,  not  expressly 
authorized  by  the  principal,  but  the  true 
state  of  facts  are,  however,  known  by  the 
principal,  the  principal  is  not  liable.  Hut 
it  is  said  that  if  this  case  is  not  overruled 
by  the  remarks  since  made  upon  it  in  2  Sm. 
L.  Cas.  81,  86,  and  by  Willes,  J.,  in  (1867) 
L.  R.  2  Ex.  202,  it  has  been  cut  down  to  a 
decision  on  a  point  of  pleading,  which  per- 
haps cannot,  and  certainly  will  Dot,  ever 
arise;  Wald's  Pollock  on  Contracts,  Willis- 
ton's  ed.  700;  and  in  the  last  edition  of  Leake 
on  Contracts  it  is  said  in  the  preface  that 
"the  time  has  now  arrived  when  Cornfoot 
v.   Fowke  may  be  consigned  to  oblivion." 

See  an  article  in  4  Mich.  L.  Rev.  199;  Bill 
or  Lading. 

DECEM  TALES  (Lat  ten  such).  A  writ 
requiring  the  sheriff  to  appoint  ten  like  men 
(appuiiere  decern  talcs),  to  make  up  a   full 


jury    when   a    sufficient  number  do   not   ap- 
pear.   See  Tales  de  i 

DECEMVIRI    LITIBUS   JUDICANDIS.      In 
Roman    Law.     Ten    judgi 
tors  and  five  knights),  appointed 

tus   to  act  as  judges  in   certain  c 
vinus,    Lex.;   Anthoii,    Rom.   Ant. 

DECENNARIUS     (Lat).      One    who    held 
one-half  a  virgate  of  land.     L>u  Cange.     <  »ne 
of  the  ten  freeholders  in  a  decennary 
<  lange ;  <  !alvinus,  Lex. 

DecentUer.     One  of  the  decennarii,  i 
freeholders  making  up  a  tithing.     Spelman, 
Gloss.;  Du  Cange,  Decetma;  l  Bla.  Com.  114. 
See  Decants. 

DECENNARY  (Lat  decern,  ten).  A  dis- 
trict originally  containing  ten  men  with  their 
families. 

King  Alfred,  for  the  better  preservation  of  the 
peace,  divided  England  into  counties,  the  counties 
into  hundreds,  and  the  hundreds  into  tithings  or  de- 
cennaries: the  Inhabitants  whereof,  living  together, 
were  sureties  or  pledges  for  each  other's  good  be- 
havior. One  of  the  principal  men  of  the  latter 
number  presided  over  the  rest,  and  was  called  the 
chief  pledge,  borsholder,  borrow's  elder,  or  tithing- 
man. 

DECEPTIONE.  A  writ  that  lieth  proper- 
ly against  him  that  deceitfully  doth  any- 
thing in  the  name  of  another,  for  one  that 
receiveth  damage  or  hurt  thereby.  It  is  ei- 
ther original  or  judicial.     Fit/.h.  N.  B. 

DECIES    TANTUM      (Lat).     An    ol 
writ,  which  formerly  lay  against  a  juror  who 
had    taken    money    for    giving    his    verdict. 
Called  so,  because  it  was  sued  out  to  recover 
from  him  ten  times  as  much  as  he  took. 

DECIM/E  (Lat).  The  tenth  part  of  the 
annual  profit  of  each  living,  payable  former- 
ly to  the  pope.  There  were  several  valua- 
tions made  of  these  livings  at  ditferent 
times.  The  deoinus  (tenths)  were  appropriat- 
ed to  the  crown,  and  a  new  valuation  i 
lished,  by  26  Hen.  VIII,  c.  3 ;  1  Bla.  Com. 
28 1. 

DECIMATION.  The  punishment  of  every 
tenth  soldier  by  lot. 

DECINERS.  Those  that  had  the  oversight 
and  check  of  ten  friburgs  for  the  mainte- 
nance of  the  king's  peace.     Cunningham. 

DECISION.  A  judgment  given  by  a  com- 
petent tribunal.  The  French  lawyers  call 
the  opinions  which  they  give  on  questions 
propounded  to  them,  decisions.  Si 
2.  8;  Dig.  1.  2.  2;  Ilanna  v.  Com'rs  of  Put- 
Dam  County,  2!)  Ind.  17<>:  Estey  v.  Sheckler, 
36  Wis.  434;   also  Judgment. 

This  word  is  variously  defined.  It  is  said 
that  the  decision  of  a  court  is  its  Judgment  ; 
Adams  v.  R.  Co.,  77  Miss.  194,  L'-J  South.  200, 
317,  28  South.  956,  60  L.  K.  A.  33;  Its  opin- 
ion Is  the  reason  given  therefor  or  the  views 
of  the  judge  in  relation  to  a  certain  subject; 
In  re  Estate  of  Winslow,  12  Misc.  254,  34  N. 
Y.  Supp.  <!-"7.  The  two  words  are  sometimes 
used  interchangeably ;    Pierce  v.   State,   109 


DECISION 


794 


DECISION 


Ind.  535,  10  N.  E.  302 ;  Estey  v.  Sheckler,  36 
Wis.  434;  Board  of  Education  of  City  of 
Emporia  v.  State,  7  Kan.  App.  620,  52  Pac. 
466.  The  judgment  is  recorded  upon  its  ren- 
dition, and  can  be  changed  only  through  an 
application  to  the  court.  The  decision  is  the 
property  of  the  judges,  subject  to  modifica- 
tion until  transcribed  in  the  records ;  Hous- 
ton v.  Williams,  13  Cal.  27,  73  Am.  Dec.  565 ; 
Coffey  v.  Gamble,  117  la.  545,  91  N.  W.  813. 
The  term  decision  is  held  to  be  a  popular 
and  not  a  technical  word  and  to  mean  little 
more  than  a  concluded  opinion.  It  does  not 
by  itself  amount  to  judgment  or  order  as 
used  in  section  29  of  the  Local  Government 
Act  of  1SS8.  It  is  an  exercise  of  a  consulta- 
tive jurisdiction  and  is  not  appealable; 
[1891]  1  Q.  B.  725. 

The  word  decision  includes:  Dismissal  of 
an  action  for  insufficiency  of  evidence;  Vol- 
mer  v.  Stagerman,  25  Minn.  234;  dismissal 
of  appeal;  Estey  v.  Sheckler,  36  Wis.  434; 
the  findings  of  the  court  upon  which  a  de- 
cree or  judgment  may  be  entered ;  Matter  of 
Winslow,  12  Misc.  254,  34  N.  Y.  Supp.  637; 
an  order  of  a  probate  court  classifying  a  de- 
mand against  the  estate;  Wolfiey  v.  McPher- 
son,  61  Kan.  492,  59  Pac.  1054 ;  a  subsequent 
order  vacating  it  and  relegating  the  demand 
to  a  different  class ;    id. 

It  is,  among  other  things,  an  order  deter- 
mining the  judgment  to  be  entered ;  Garr, 
Scott  &  Co.  v.  Spaulding,  2  N.  D.  414,  51  N. 
W.  867.  It  has  a  broader  significance  than 
judgment;  Wolfiey  v.  McPherson,  61  Kan. 
492,  59  Pac.  1504.  A  "decision  upon  the 
merits"  is  one  upon  the  justice  of  the  case 
and  not  upon  technical  grounds  merely ; 
Mulhern  v.  R.  Co.,  2  Wyo.  465.  "Surely  a 
non-suit  is  not  a  decision ;"  id.  A  ruling 
upon  the  admission  of  evidence  is  not  includ- 
ed in  the  words  "decision  or  intermediate 
order"  ;  State  v.  O'Brien,  18  Mont.  1,  43  Pac. 
1091,  44  Pac.  399;  the  word  is  sometimes 
treated  as  synonymous  with  judgment;  Es- 
tey v.  Sheckler,  36  Wis.  434 ;  Board  of  Edu- 
cation of  City  of  Emporia  v.  State,  7  Kan. 
App.  620,  52  Pac.  466;  Pierce  v.  State,  109 
Ind.  535,  10  N.  E.  302 ;  it  has  been  said  that 
"in  an  abstract  sense  there  is  a  shade  of 
difference  between  the  import  of  the  word 
'decision'  and  the  word  'judgment' " ;  the 
former  "is  the  resolution  of  the  principles 
which  determine  the  controversy ;  the  judg- 
ment is  the  formal  paper  applying  them  to 
the  rights  of  the  parties" ;  Buckeye  Pipe 
Line  Co.  v.  Fee,  62  Ohio  St.  543,  555,  57  N. 
E.  446,  78  Am.  St.  Rep.  743.  As  used  in  a 
statute  characterizing  the  findings  of  fact 
and  conclusions  of  law  as  a  "written  deci- 
sion" it  means  something  which  must  pre- 
cede the  judgment  and  upon  which  it  is  en- 
tered as  upon  a  verdict;  Corbett  v.  Job,  5 
Nev.  201. 

The  decisions  of  courts  are  not  the  law, 
but  only  evidences  of  the  law,  stronger  or 
weaker  according   to   the   number  and   uni- 


formity of  adjudications,  the  unanimity  or 
dissension  of  the  judges,  the  solidity  of  the 
reasons,  and  the  perspicuity  and  precision 
with  which  the  reasons  are  expressed;  Yates 
v.  Lansing,  9  Johns.  (N.  Y.)  395,  6  Am.  Dec. 
290;  United  States  Savings  &  Loan  Co.  v. 
Harris,  113  Fed.  27 ;  Swift  v.  Tyson,  16  Pet. 
(U.  S.)  1,  10  L.  Ed.  865 ;  Phipps  v.  Harding, 
70  Fed.  468,  17  C.  C.  A.  203,  30  L.  R.  A.  513 ; 
Falconer  v.  Simmons,  51  W.  Va.  172,  41  S. 
E.  193. 

But  on  the  other  hand  the  term  "law"  is 
said  to  include  the  decisions  of  the  courts ; 
Miller  v.  Dunn,  72  Cal.  462,  14  Pac.  27,  1 
Am.  St.  Rep.  67.  Possibly,  if  not  probably, 
the  difference  is  one  of  expression  rather 
than  of  substance. 

DECIS0RY    OATH.     See  Oath. 

DECLARANT.  One  who  makes  a  declara- 
tion. 

DECLARATION.  In  Pleading.  A  specifi- 
cation, in  a  methodical  and  logical  form,  of 
the  circumstances  which  constitute  the  plain- 
tiff's cause  of  action.  1  Chit.  PL  248;  Co. 
Litt.  17  a,  303  a ;  Bacon,  Abr.  Pleas  (B) ; 
Comyns,  Dig.  Pleader,  C,  7;  Lawes,  PI.  35; 
Steph.  PL  36;  Dixon  v.  Sturgeon,  6  S.  &  R. 
(Pa.)  28. 

In  real  actions,  it  is  most  properly  called  the 
count;  in  a  personal  one,  the  declaration;  Steph. 
PI.  36 ;  Doctr.  Plac.  83  ;  Lawes,  PI.  33.  See  Fitzh. 
N.  B.  16  a,  60  d.  The  latter,  however,  is  now  the 
general  term, — being  that  commonly  used  when  re- 
ferring to  real  and  personal  actions  without  dis- 
tinction ;    3  Bouvier,  Inst.  n.  2815. 

In  an  action  at  law,  the  declaration  answers  to 
the  bill  in  chancery,  the  libel  (narratio)  of  the 
civilians,  and  the  allegations  of  the  ecclesiastical 
courts. 

It  may  be  general  or  special:  for  example, 
in  debt  on  a  bond,  a  declaration  counting  on 
the  penal  part  only  is  general;  one  which 
sets  out  both  the  bond  and  the  condition  and 
assigns  the  breach  is  special;  Gould,  PL  c. 
4,  §  50. 

The  parts  of  a  declaration  are  the  title  of 
the  court  and  term ;  the  venue,  see  Venue; 
the  commencement,  which  contains  a  state- 
ment of  the  names  of  the  parties  and  the 
character  in  which  they  appear,  whether  iq 
their  own  right,  the  right  of  another,  in  a 
political  capacity,  etc.,  the  mode  in  which 
the  defendant  has  been  brought  into  court, 
and  a  brief  recital  of  the  form  of  action  to 
be  proceeded  in ;  1  Saund.  318,  n.  3,  111 ;  6 
Term  130;  the  statement  of  the  cause  of  ac- 
tion, which  varies  with  the  facts  of  the  case 
and  the  nature  of  the  action  to  be  brought, 
and  which  may  be  made  by  means  of  one 
or  of  several  counts;  3  Wils.  1S5;  Neal  v. 
Lewis,  2  Bay  (S.  C.)  206,  1  Am.  Dec.  640; 
one  count  may  incorporate,  by  reference,  cer- 
tain general  averments  which  are  in  a  pre- 
vious count  in  the  same  pleading;  Green  v. 
Clifford,  94  Cal.  49,  29  Pac.  331 ;  see  Count  ; 
the  conclusion,  which  in  personal  and  mixed 
actions  should  be  to  the  damage  (ad  dam- 
num, which  title  see)  of  the  plaintiff;   Com- 


DECLARATION 


795 


DI.'  LARATION 


yns,  Dig.  Pleader  (C,  84);  10  Co.  116  ft,  117 
a;  1  M.  &  S.  236;  unless  in  scire  facias  and 
in  penal  actions  at  the  suit  of  a  common  in- 
former, but  which  need  not  repeat  the  ca- 
pacity of  the  plaintiff;  Martin  v.  Smith,  5 
Binn.  (Pa.)  10,  21,  6  Am.  Dec.  395;  the  pro- 
fert  of  letters  testamentary  in  case  of  a  snit 
by  an  executor  or  administrator;  Bacon, 
Abr.  Executor  (C) ;  DougL  5,  n. ;  Webb  v. 
Danforth,  1  Day  (Conn.)  ::i>r>;  and  the  i>l"t<j- 
cs  of  prosecution,  which  are  generally  dis- 
used, and,  when  found,  are  only  the  ficti- 
tious persons,  Julin  Doe  and  Richard  Roe. 

Tbe  requisites  or  qualities  of  a  declaration 
are  that  it  must  corresp 1  with  the  pro- 
cess; and  a  variance  in  this  respect  was 
formerly  the  subject  of  a  plea  in  abate 
see  Abatement;  it  must  contain  a  state- 
ment of  all  the  facts  necessary  in  point  of 
law  to  sustain  the  action,  and  no  more;  Co. 
Litt  303  a;  Plowd.  S4,  122;  Pep.  PI.  s. 
See  Coffin  v.  Coffin,  2  Mass.  363  :  Oowp.  682  ;  6 
East  122;  Viner,  Abr.  Declaration ;  Barrett 
v.  Liugle,  45  La.  Ann.  935.  Tbe  omission  of 
a  complaint  to  allege  a  material  fact  is  cur- 
ed where  such  fact  is  shown  by  tbe  answer. 

The  circumstances  must  be  stated  with 
certainty  and  truth  as  to  parties;  Bentley 
v.  Smith,  3  Cat  (X.  Y.)  170;  1  M.  &  S.  304; 
Simonds  v.  Speed,  6  Rich.  (S.  C.)  390;  Jack- 
son v.  Alexander,  8  Tex.  109;  Totty's  Ex'r 
v.  Donald,  4  Muuf.  (Va.)  430;  time  of  occur- 
rence, and  in  personal  actions  it  must,  in 
general,  state  a  time  when  every  material  or 
traversable  fact  happened;  Atlantic  Mut. 
Fire  Ins.  Co.  v.  Sanders,  36  N.  II.  252;  Gi- 
van  v.  Swadley,  3  Ind.  4S4;  Haven  v.  Shaw, 
23  N.  J.  L.  309 ;  Hyslop  v.  Jones,  3  McLean, 
96,  Fed.  Cas.  No.  13,953  ;  and  when  a  venue 
is  necessary,  time  must  also  be  mentioned;  5 
Term  020;  Com.  Dig.  Pleader  (O.  19);  Barnes 
v.  Matteson,  5  Barb.  fX.  Y.)  375;  though  the 
precise  time  is  not  material;  U.  S.  v.  Vigol, 
2  Dall.  (U.  S.)  340,  1  L.  Ed.  409;  Che 
v.  Lewis,  3  Johus.  (N.  Y.)  43;  Simpson  v. 
Talbot.  25  Ala.  409;  unless  it  constitute  a 
material  part  of  tbe  contract  declared  upon, 
or  where  the  date,  etc.,  of  a  writ.cn  contract 
is  averred;  2  Campb.  307;  Atlantic  Mut.  Fire 
Ins.  Co.  v.  Sanders.  :',0  X.  II.  252;  Haven  v. 
Shaw,  23  N.  J.  L.  309;  or  in  ejectment,  in 
which  the  demise  must  he  stated  to  have 
been  made  after  the  title  of  tbe  lessor  of  the 
plaintiff  and  his  right  of  entry  accrued;  2 
East  257;  Van  Alen  v.  Rogers,  1  Johns,  ('as. 
(X.   Y.)   283,   1    Am.    Dec.    113;     the    place,   see 

Venue.;  and,  generally,  as  to  particulars  of 
the  demand,  sufficient  to  enable  the  defend- 
ant to  ascertain  precisely  the  plaintiff's 
claim;  2  P..  &  I'.  265;  2  Saund.  74  &;  Posey 
v.  Hair,  12  Ala.  ri<;7;  Van  Rensselaer  v. 
Jones,  2  Barb.  (N.  Y.)  643;  Corey  v.  Bath, 
35  N.  H.  530;  Heirn  v.  McCaughan,  32  Miss. 
17,  66  Am.  Dec.  5S8;  Fulwood  v.  Graham,  1 
Rich  (S.  C.)  4!>3. 

In   Evidence.     A  statement  made  by  a  par- 
ty to  a  trausactiou,  or  by  one  having  an  in- 


terest in  the  existence  of  some  fact  in  re- 
lation   to   \l 

Such  declarations  are  i  iginal 

evidence'  and  adj  when 

the   fact   that   the  declaration   was  mi 
the  point  in  question;    Bartlet  v. 

702  :    Pelli  treau  •  . 
iX.  Y.)  110;   Phelps  v.  V 
!:.   &  Ad.  845;    :•   Bingh.   359; 
269;    second,  including  expire- 
i."  ling,    where   the  existence   or    :.. 
SUCh  feelings  Is  the  object  of  inquiry,  i 
pressions   of   affection   in   actions   for  crim. 
con.;    1   B.   &  Aid.  90;    Gilchrist   v.    B 
Wacts  (Pa.)  355,  .".I  Am.  Dec.  469: 

6  I'.  22;  Roosa  v.  Loan  Co.,  132  Mai  .  439; 
representations  by  a  sick  person  of  the  ma- 
ture, symptoms,  and  effects  of  the  malady 
under  which  be  is  laboring;  6  Bast  188; 
Gilchrist  v.  Bale,  8  Watts  (Pa.)  355,  34  Am. 

B  C.   &    1'.   275;     Bacon   v.    In- 
habitants of  Charlton,  7  Cush.  (Mass. 
Wilkinson  v.  Mosoley,  30  Ala.  562;    Fa 

I   da.   17;     Wadlow  v.  Ferryman's 
Adm'r,  21  Mo.  279;    State  v.  David 
Vt  377,  73  Am.  Dec.  312 ;    Collins  v.  Waters, 
54  111.  4S5 ;    in  prosecution  for  rape,  th< 
larations  of  the  woman  forced;    1 
565;    _   Stark.  241;    Laughlin  v.   state,   is 
Ohio  99,  51  Am.  Dec.  -144;    third,  in  caf 

■e,  including  the  declarations  of  de- 
ceased persons  nearly  related  to  the  parties 
in  question;  2  C.  &  K.  701;  1  De  G.  A-  S. 
40;  Jewell  v.  Jewell,  1  How.  (U.  S.i  231,  11 
L.  Ed.  10S;  Jackson  v.  Browner,  18  J 
(N.  Y.)  37;  Chapman  v.  Chapman,  2  I 
347,  7  Am.  Dec.  277;  Waldron  v.  Tuttle,  4 
X.  II.  371;  Dupoyster  v.  Gaganl,  84  Kj 

1  S.  W.  052;  5  Out.  638;  33  D.  C.  Q.  B.  013; 
Bisenlord  v.  Clum,  126  N.  V.  552,  27 

1024,  12  L.  R.  A.  836;    Gehr  v.  Fisher.  143 
Pa.  311.  22  Atl.  859;    Harland  v.  East 
107  111.  535;   family  records;    5  CI.  &  F  24; 

7  Scott,  N.  R.  141;    Douglass  v.  Sanderson, 

2  Dall.  (U.  S.)  116.  1  L.  Fd.  312;    Wa 
Brewster,  1  Pa.  381 ;    Jackson   v.   Cooley,   8 
Johns.   (XT.  Y.)  128;    fourth,  cases  where  the 
declaration  may  be  considered  as  a  part  of 
the  res  gestae;   Tucker  v.  Pei  N.  H 
167;   Banfield  v.  Parker,  id.  353;    George  v. 
Thomas,  16  Tex.  74;   67  Am.  Dec.  012;    liar- 
dee  v.  Langford,  6  Fla.  1:::    14  Cox,  Cr 
341;   Clayton  v.  Tucker.  20  Ga.  452;   Deveney 
v.  Baxter,  157  Mass.  !>,  :;i  X.  B.  690;    Mobile 
&  B.  R.  Co.   v.  Worthington.  95   Ala.  5! 
South.  S.-'.'.);  Pake  Shore  &  M.  S.  P.  Co.   v.  Iler- 
rick.  4!)  Ohio  St.  2o.  29  X.  F.  I 

R.  Co..  SO  Wis.  590,  •"><>  X.  W.  584,  27  Am.  St 
Rep.  69;    *  tick  v.  Sisson,  '•>:.  Mich. 
X.  W.  s!i.".;    Holmes  v.  Goldsmith,  117  l".  s. 
150,  1::  Sup.  Ct  288,  .".7  L.  Fd.  11^ 
Martin.   1L11   Mo.  .".27,  28  S.  W.   12   (in  which 
the    cases    are    reviewed);     including 
made  by  persons  in  the  possession  of  land; 
5  B.  &  Ad.  223;    16  M.  &  W.  497 :    Inhabit- 
ants  of   West   Cambridge   v.    Inhabita 
Lexington,  2  Pick.  (Mass.)  530;    Weidman  v. 


DECLARATION 


796 


DECLARATION 


Kohr,  4  S.  &  R.  (Pa.)  174 ;  Snelgrove  v.  Mar- 
tin, 2  McCord  (S.  C.)  241;  Crane  v.  Mar- 
shall, 16  Me.  27.  33  Am.  Dec.  631;  Perkins 
v.  Webster,  2  N.  H.  287;  Doe  v.  Campbell, 
23  N.  C.  4S2 ;  Abney  v.  Kingsland  &  Co.,  10 
Ala.  355,  44  Am.  Dec.  491 ;  Stark  v.  Boswell, 
6  Hill  (N.  Y.)  405,  41  Am.  Dec.  752;  Hay- 
ward  Rubber  Co.  v.  Duncklee,  30  Vt.  29; 
Brush  v.  Blanchard,  19  111.  31;  Sharp  v. 
Maxwell,  30  Miss.  589;  Cunningham  v.  Ful- 
ler, 35  Neb.  58,  52  N.  W.  836;  and  entries 
made  in  the  ordinary  course  of  business  by 
those  whose  duty  it  was  to  make  such  en- 
tries ;  as  field-book  entries  by  a  deceased 
surveyor ;  [1905]  2  Ch.  164  ;  reversing  [1904] 
2  Ch.  525.  The  question  on  which  the  two 
courts  differed  was  whether  the  case  was 
within  the  principle  of  Price  v.  Torrington, 
1  Salk.  285,  1  Smith,  Leading  Cases  139, 
which  was  recognized  as  the  leading  case 
for  the  admission  of  such  entries  made 
by  a  deceased  person.  But  it  must  be  shown 
that  it  was  the  duty  of  the  deceased  person 
to  do  the  particular  thing  and  to  record  con- 
temporaneously the  fact  of  having  done  it; 
[1904]  2  Ch.  534 ;  2  Ont.  App.  247 ;  8  id.  564. 
The  limitation  of  duty  thus  adhered  to  in 
England  and  Canada,  though  suggested  in 
earlier  American  cases;  Nichols  v.  Gold- 
smith, 7  Wend.  (N.  Y.)  161;  "did  not  with 
us  survive"  ;   2  Wigm.  Ev.  §  1524. 

Such  entries  have  been  admitted  in  this 
country  in  a  great  variety  of  cases;  as  a 
private  memorandum  of  marriages  kept  by 
a  clergyman  and  the  baptismal  registry  of  a 
church ;  Blackburn  v.  Crawford,  3  Wall.  (U. 
S.)  175,  18  L.  Ed.  1S6;  American  Life  Ins. 
Co.  &  Trust  Co.  v.  Rosenagle,  77  Pa.  507; 
Hunt  v.  Order  of  Chosen  Friends,  64  Mich. 
671,  31  N.  W.  576,'  8  Am.  St  Rep.  855 ;  Ken- 
nedy v.  Doyle,  10  Allen  (Mass.)  161;  Meconce 
v.  Mower,  37  Kan.  298,  15  Pac.  155;  Weaver 
v.  Leiman,  52  Md.  708;  the  minutes  of  a 
church  conference ;  Pettyjohnls  Ex'r  v.  Petty- 
john, 1  Houst.  (Del.)  332;  Rayburn  v.  Elrod, 
43  Ala.  700;  Nason  v.  First  Church,  66  Me. 
100 ;  the  diary  of  an  attorney ;  Burke  v. 
Baker,  1S8  N.  Y.  561,  SO  N.  E.  1033;  a  log 
book;  U.  S.  v.  Mitchell,  3  Wash.  C.  C.  95, 
Fed.  Cas.  No.  15,792;  contra,  Cameron  v. 
Rich,  5  Rich.  L.  (S.  C.)  352,  52  Am.  Dec. 
747 ;  a  physician's  entries  in  the  ward  book 
of  an  asylum ;  State  v.  Hinkley,  9  N.  J.  L. 
J.  118;  a  school  register;  Falls  v.  Gamble, 
66  N.  C.  455;  a  diploma  to  show  that  a 
physician  had  his  degree ;  Holmes  v.  Halde, 
74  Me.  28,  43  Am.  Rep.  567. 

The  following  have  been  held  inadmissible 
as  such  entries:  Commercial  rating  of  a 
commercial  agency ;  Richardson  v.  Stringfel- 
low,  100  Ala.  416,  14  South.  283;  Baker  v. 
Ashe,  80  Tex.  356,  16  S.  W.  36;  Henderson 
v.  Miller,  36  111.  App.  232 ;  the  book  of  a  car 
inspector;  Hicks  v.  Southern  Ry.,  63  S.  C. 
559,  41  S.  E.  753;  a  nurse's  record  of  what 
transpired  at  the  testator's  sick  bed;  In  re 
Flint's  Estate,  100  CaL  391,  34  Pac,  863;  a 


school  catalogue;  State  v.  Daniels,  44  N.  H. 
383;  the  certificate  of  a  weigher's  assistant. 
not  himself  an  official ;  Prew  v.  Donahue, 
118  Mass.  438.     See  1  Greenl.  Ev.  §  115. 

Originally  such  statements,  to  be  admissi- 
ble, must  have  been  in  writing,  and  the  first 
authority  for  the  admission  of  oral  state- 
ments is  a  dictum  of  Lord  Campbell  in  the 
Sussex  Peerage  Case,  11  CI.  &  Fin.  113,  for 
which  the  only  authority  cited,  3  B.  &  Ad. 
890,  was  a  case  of  written  evidence,  but  it 
was  followed  by  the  admission  of  a  state- 
ment in  the  nature  of  a  report  by  a  consta- 
ble to  his  superior  officer;  13  Cox  C.  C.  293. 
Oral  statements  of  deceased  physicians  were 
admitted  to  show  the  disease  of  which  the 
insured  had  died  in  a  suit  on  a  life  insur- 
ance policy;  McNair  v.  Ins.  Co.,  13  Hun 
(N.  Y.)  144;  but  such  statements  as  to  the 
nature  of  her  illness,  when  offered  by  re- 
spondent in  a  petition  for  dissolution  of 
marriage  in  support  of  cross  charges,  were  re- 
jected as  not  made  in  the  course  of  duty ;  22 
T.  L.  R.  52 ;  and  verbal  reports  of  a  foreman 
to  a  superintendent  as  to  matters  material 
to  the  issue  were  admitted;  Williams  v. 
Walton  &  Whann  Co.,  9  Houst.  (Del.)  322,  32 
Atl.  726.     See  19  Harv.  L.  Rev.  301. 

Declarations  by  a  party  of  his  intention, 
where  that  is  of  itself  a  distinct  and  ma- 
terial fact  in  a  chain  of  circumstances,  are 
admissible;  Mutual  Life  Ins.  Co.  v.  Hillmon, 
145  U.  S.  2S5,  12  Sup.  Ct.  909,  36  L.  Ed.  TOG ; 
such  declarations  being  acts  from  which  in- 
tention may  be  inferred ;  Com.  v.  Trefethen, 
157  Mass.  1S9,  31  N.  E.  961,  24  L.  R.  A.  235 ; 
Buel  v.  State,  104  Wis.  149,  80  N.  W.  7S. 

Declarations  regarded  as  secondary  evi- 
dence or  hearsay  are  yet  admitted  in  some 
cases :  first,  in  matters  of  general  and  public 
interest,  common  reputation  being  admis- 
sible as  to  matters  of  public  interest ;  6  M.  & 
W.  234;  Noyes  v.  Ward,  19  Conn.  250;  but 
reputation  amongst  those  only  connected 
with  the  place  or  business  in  question,  in 
regard  to  matters  of  general  interest  mere- 
ly ;  1  Cr.  M.  &  R.  929 ;  2  B.  &  Ad.  245 ;  El- 
licott  v.  Pearl,  10  Pet.  (U.  S.)  412,  9  L.  Ed. 
475 ;  Southwest  School  Dist.  v.  Williams,  48 
Conn.  504;  McCall  v.  U.  S.,  1  Dak.  320,  46 
N.  W.  608;  and  the  matter  must  be  of  a 
quasi  public  nature;  10  B.  &  C.  657;  Elli- 
cott  v.  Pearl,  10  Pet.  (U.  S.)  412,  9  L.  Ed. 
475 ;  Brander  v.  Ferriday,  16  La.  296 ;  see 
Reputation  ;  second,  in  cases  of  ancient  pos- 
session where  ancient  documents  are  admit- 
ted, if  found  in  a  place  in  which  and  under 
the  care  of  persons  with  whom  such  papers 
might  reasonably  (in  the  opinion  of  the  trial 
judge;  1  Chase  Steph.  Dig.  Evid.  156)  be  ex- 
pected to  be  found ;  Inhabitants  of  Green- 
field v.  Inhabitants  of  Camden,  74  Me.  56; 
Applegate  v.  Lexington  &  C.  County  Min. 
Co.,  117  U.  S.  255,  6  Sup.  Ct.  742,  29  L.  Ed. 
892;  Quinn  v.  Eagleston,  108  111.  248;  if 
they  purport  to  be  a  part  of  the  transaction 
to  which  they  relate;  1  Greenl.  Ev.  §  144; 


DECLARATION 


797 


'  DECLARATION 


see  Ancient  Writings;  third,  in  case  of  dec- 
larations and  entries  made  against  the  in- 
terest of  the  party  making  tbeiu,  whether 
made  concurrently  with  the  act  or  subse- 
quently; 3  B.  &  Ad.  893;  Cramer  v.  Gregg, 
40  111.  App.  442;  Irish-American  Bank  v. 
Ludlum,  49  Minn.  255,  51  N.  W.  L047;  Keesey 
v.  Old,  82  Tex.  22,  17  S.  \V.  928;  Totter  v. 
Ogden,  136  N.  Y.  384,  33  N.  E.  228;  but  such 
declarations  and  entries,  to  be  so  admitted, 
must  appear  or  be  shown  to  he  against  the 
pecuniary  interest  of  the  party  making  them; 
11  01.  &  F.  85;  2  Jac.  &  W.  789;  3  Bingb. 
N.  C.  308;  Drawdy  v.  Heaters,  L30  Ga,  161, 
60  S.  B.  451,  15  L.  R,  A.  (N.  B.)  190;  and 
if  so  they  may  be  admitted,  whether  or  not 
made  in  the  ordinary  course  of  business,  as 
where  a  solicitor  charges  himself  with  re- 
ceipts on  his  client's  behalf;  53  W.  II,  1G9; 
but  letters  written  and  signed  by  one  de- 
d,  or  a  memorandum  made  by  him,  are 
not  admissible  hy  a  party  claiming  under 
him  if  not  shown  to  have  heen  communicat- 
ed to  the  party  claiming  adversely;  Elsberg 
v.  Sewards,  66  Hun  28,  21  N.  Y.  Supp.  10; 
it  was  established  by  the  Sussex  Peerage 
Case,  1  CI.  &  Fiu.  S5.  that  the  interest  must 
be  either  pecuniary  or  proprietary;  this  ex- 
cluded the  admission  by  a  clergyman  that  he 
had  unlawfully  solemnized  a  marriage, 
which  was  so  far  against  his  interest  that 
it  would  have  subjected  him  to  punishment; 
this  ruling  has  been  generally  accepted,  but 
that  it  is  so  has  been  said  to  he  "highly  un- 
fortunate";  1  Gr.  on  Ev.  (16th  Ed.  by  Wig- 
more)  §  152  d;  fourth,  dying  declarations. 

Dying  declarations,  made  in  cases  of  homi- 
cide where  the  death  of  the  deceased  is  the 
subject  of  the  charge  and  the  circumstances 
of  the  death  are  the  subject  of  the  dying 
declarations,  are  admissible;  2  B.  &  C.  605; 
2  Mood.  &  R.  53;  Jackson  v.  Kniffen,  2 
Johns.  (N.  Y.)  81,  3  Am.  Dec.  390;  Wilson  v. 
Boerene,  15  Johns.  (N.  Y.)  2SG;  Anthony  v. 
state.  Meigs  (Tenn.)  265,  33  Am.  Dec.  143; 
if  made  under  a  sense  of  impending  death; 

2  Leach  563;  Montgomery  v.  State,  11  Ohio 
421;  Dunn  v.  State  2  Ark.  229,  35  Am.  Dec. 
54;  Com.  v.  McPike,  3  Cush.  (Mass.)  181,  50 
Am.  Dec.  727;  Smith  v.  State,  9  Humphr. 
(Tenn.)  9;  Logan  v.  State,  t'(/.  21;  state  v. 
Umble,  115  Mo.  452,  22  S.  W.  378;  state  v. 
Aldrieh,  50  Kan.  6G6,  32  Pac.  408;  Wallace 
v.  State,  90  Ga.  117,  15  S.  B.  700;  State  v. 
Cronin,  64  Conn.  293,  29  Atl.  536.     And  see 

3  C.  &  P.  2G9;  6  id.  386;  Vass  v.  Com.,  3 
Leigh  (Va.)  78G,  24  Am.  Dec.  695;  State  v. 
Poll,  8  N.  C.  442,  9  Am.  Dec.  655;  State  v. 
Whitson,  111  N.  C.  695,  16  S.  K.  332;  King 
v.  State,  91  Tenn.  617,  20  S.  W.  169;  Mattox 
T.  U.  S.,  146  U.  S.  140,  13  Sup.  Ct.  50.  36 
L.  Ed.  917.  Ordinarily  they  are  admissible 
only  in  trials  for  homicide  of  the  declarant. 
but  they  have  been  admitted  on  trial  for 
attempted  abortion  on  the  woman  who  made 
them;  State  v.  Meyer.  G5  N.  J.  L.  237,  47 
Atl.  486,  86  Am.   St.  Rep.  634;  Montgomery 


v.    State,    80    Ind.    338,    41    Am.    Rep.    815, 

where    the    question    is    discussed    at    large 

and     the    conclusion  that     be 

death   resulted   and   that   fact   entered  into 

the    statutory     crime,     th 

hie.      It    was    held     i 

Davis,  56  N.  Y.  95,  and  In    -    ite  v.  H 

35  Ohio  St.  7S.  35  Am.    ! 

larations    were    excluded 

the  woman  died,  her  death  was  not  th 

ject  of  the  charge.     The   declarations   must 

have  heen  made   by   the   person 

have    h"en    murdered;    State    v.    Bohan,    15 

Kan.  418;   Brown  v.   Com.,   7::   Pa.  321,   13 

Am.  Rep.  740,  where  husband  and  wife  were 

killed  and  it  was  held  error  to  admit 

larations  of   the   latter   on    trial    f>>r   murder 

of   the    former;    hut   it    has    also    heen    held 

that,   where  two  or  more  were  killed  at  the 

same   time,   declarations  of  one  were  a 

sihle  at  the  trial  for  the  murder  oi 

er;  state  v.  Terrell,  12  Rich.  (S.  C.)  321;  2 

Moo.  &  Rob.  53.     In  the  Pennsylvania  case 

the  court  distinguished   it   from  tl 

"supposing  them  to  be  good  law."    The 

larations  must  be  connected  with  the  death 

which    is    the    subject   of    the    trial:    People 

v.  Won-  Chuey,  117  Cal.  624,  49  Pac 

and  must  concern  the  res  gesUB,  not  previous 

relations;    People   v.    Smith,    172    X.    V.   242, 

64  N.  E.  814.    They  must  be  male  under  an 

actual    apprehension    of    impending    death; 

People  v.  Evans,  40  Hun  (N.  V.  |  492;  P 

v.    Brecht,    120    App.    Div.    769,    105    N.    Y. 

Supp.  4:;G  (in  both  of  which  statements  were 

d   because  declarants   had    Dot   wholly 
abandoned  hope);  State  v.  Hennessy,  29  Nev. 
320,  90   Pac.   221,   13   Ann.   Cas.   1122   (where 
they  were  admitted);  after  hope  of  recovery 
is  gone;  Small  v.  Com.,  91  Pa.  304;  and  even 
a  faint  hope  excludes  them;  Com.  v.  Roberts, 
108   Mass.   296;   People  v.  Gray,  61  Cal.  164, 
44  Am.  Rep.  -~>19;  but  subsequent  lingering, 
with   some  expression   of   hope,    does   not,   if 
at  the   time   they   were   made   there    wa 
hope;  Swisher  v.  Com..  26  Gratt  (Va.) 
21  Am.  Dec.  330.     A  statement  made  in  writ- 
ing before  hope  was  abandoned  and  eon  tinn- 
ed   afterwards    was    admissible;    Wilson    v. 
Com.,   60    S.    YV.   400,   22   Ky.    L.    Rep.    1251; 
State  v.  McEvoy,  9  S.  C.  208.     The  fear  of 
death  need  not  be  expressed  to  the  j 
who  receives  the  declaration,  if  its  exi 
is    otherwise    established;     Worthington    v. 
state  92   Md.   222,  48  Atl.  355,   56   L.   PL   A. 

I   Am.   St   Rep.  506.     a  nt  re- 

duced to  writing  may   be  supplemented   by 
others  made  orally  at  the  same  time;   Herd 

te,  43  Tex.  < -r.  It.  575,  67  S.  W.  495 
(criticised.  11  Y.  L.  3.  430);  i  ntra;  1  Str. 
499;  Whart.  Horn.  §  766;  Gr.  Ev.  §  160. 

Although  the  time  elapsing  between  the 
declarations  and  death  is  proper  to  be  con- 
sidered, they  will  not  be  made  inadmissible 
by  a  few  subsequent  hours  of  life;  People  v. 
Weaver.  108  Mich.  049,  66  N.  W.  507;  State 
v.   Reed,  53  Kan.  767,  37  Pac.   174.  42  Am. 


DECLARATION 


798 


DECLARATION 


St.  Rep.  322;  or  even  some  days;  6  C.  &  P. 
386;  Com.  v.  Haney,  127  Mass.  455;  Jones 
v.  State,  71  Iud.  66;  State  v.  Jones,  3S  La. 
Ann.  792;  Baxter  v.  State,  15  Lea  (Tenn.) 
657 ;  State  v.  Yee  Wee,  7  Idaho,  1SS,  61  Pac. 
5SS. 

It  is  not  necessary  that  the  declarant  state 
that  he  is  expecting  immediate  death;  it  is 
enough  if,  from  all  the  circumstances,  unsat- 
isfactorily appears  that  such  was  the  condi- 
tion of  his  mind  at  the  time  of  the  declara- 
tions; State  v.  Wilson,  24  Kan.  189,  36  Am. 
Rep.  257;  but  there  must  be  a  belief  that 
there  is  no  hope  of  recovery ;  Com.  v. 
Roberts,  10S  Mass.  296;  People  v.  Brecht, 
120  App.  Div.  769,  105  N.  Y.  Supp.  436; 
State  v.  Welsor,  117  Mo.  570,  21  S.  W.  443; 
65  J.  P.  426;  67  id.  151,  where  the  expres- 
sion "I'm  dying"  was  used  and  the  declara- 
tions were  excluded,  while  in  71  id.  152,  the 
same  expression  was  used  and  they  were  ad- 
mitted; as  they  were  also  when  declarant 
said  he  did  not  know  what  expectation  of 
recovery  he  had;  State  v.  Thompson,  49  Or. 
46,  88  Pac.  583,  124  Am.  St.  Rep.  1015.  The 
belief  that  death  is  inevitable  supplies  the 
place  of  an  oath;  Tracy  v.  People,  97  111. 
106;  People  v.  Sanford,  43  Cal.  29;  Dixon 
v.  State,  13  Fla.  636.  Accordingly,  although 
the  common  law  rule  was  said  to  require 
that  declarant  should  have  a  belief  in  God 
and  a  future  state;  1  Str.  499;  17  Y.  L.  J. 
403;  that  rule  was  considered  abrogated  in 
the  cases  just  cited  and  the  want  of  such 
belief  has  been  held  to  be  no  ground  for  ex- 
cluding declarations;  State  v.  Hood,  63  W. 
Va.  182,  59  S.  E.  971,  15  L.  R.  A.  (N.  S.) 
448,  129  Am.  St.  Rep.  964 ;  while  other  cases 
hold  otherwise,  though  belief  is  presumed 
until  the  contrary  is  proved;  Donnelly  v. 
State,  26  N.  J.  L.  463;  but  if  admitted  in 
such  case,  they  should  not  be  relied  on ; 
State  v.  Elliott,  45  la.  486.  Reckless  and 
profane  language  will  not  render  declara- 
tions inadmissible;  Kirby  v.  State,  151  Ala. 
66,  44  South.  38;  but  will  affect  their  credi- 
bility ;  Nesbit  v.  State,  43  Ga.  238 ;  and  cross- 
examination  will  be  allowed  as  to  that,  as 
being  material  in  showing  both  a  reckless 
and  irreverent  state  of  mind  and  hostility 
towards  the  accused;  Tracy  v.  People,  97 
111.  105. 

The  declaration  may  have  been  made  by 
signs ;  1  Greenl.  Ev.  §  161  6 ;  and  in  answer 
to  questions;  7  C.  &  P.  23S:  2  Leach  563; 
Yass  v.  Com.,  3  Leigh  (Va.)  7S6,  24  Am.  Dec. 
695.  They  may  be  in  writing ;  State  v.  Kin- 
dle, 47  Ohio  St.  358,  24  N.  E.  485;  King  v. 
State,  91  Tenn.  617,  20  S.  W.  169.  The  sub- 
stance only  need  be  given  by  the  witness ; 
Montgomery  v.  State,  11  Ohio,  424;  Ward  v. 
State,  8  Blackf.  (Ind.)  101;  but  the  declara- 
tion must  have  been  complete;  Vass  v.  Com., 
3  Leigh  (Va.)  786,  24  Am.  Dec.  695;  Mattox 
v.  U.  S.,  146  U.  S.  140,  13  Sup.  Ct.  50,  36 
L.  Ed.  917;  and  the  circumstances  under 
which  it  was  made  must  be  shown  to  the 


court;  3  C.  &  P.  629;  7  id,  187;  State  v. 
Poll,  8  N.  C.  444,  9  Am.  Dec.  655;  Hill  v. 
Com.,  2  Gratt.  (Va.)  594;  McDaniel  v.  State, 
8  Smedes  &  M.  (Miss.)  401,  47  Am.  Dec.  93. 

It  is  for  the  court  to  determine  whether 
the  preliminary  conditions  make  the  evi- 
dence admissible ;  State  v.  Cronin,  64  Conn. 
293,  29  Atl.  536;  State  v.  Doris,  51  Or.  136, 
94  Pac.  44,  16  L.  R.  A.  (N.  S.)  660 ;  and  this 
includes  the  question  of  impending  death; 
Roten  v.  State,  31  Fla.  514,  12  South.  910; 
1  Stark.  521,  and  note  (where  the  case  of 
Rex  v.  Woodcock,  Leach  593,  contra,  is  dis- 
credited);  People  v.  Smith,  104  N.  Y.  491, 
504,  10  N.  E.  873,  58  Am.  Rep.  537 ;  and  this 
decision  of  the  court  comprises  both  fact 
and  law,  as  to  the  first  of  which  it  is  final 
and  as  to  the  second  subject  to  review; 
State  v.  Williams,  67  N.  C.  12;  Com.  v. 
Bishop,  165  Mass.  148,  42  N.  E.  560  (Holmes, 
C.  J.) ;  but  having  been  admitted,  the  weight 
of  the  evidence  is  for  the  jury ;  State  v. 
Sexton,  147  Mo.  89,  48  S.  W.  452;  and  this 
includes  consideration  of  the  circumstances 
under  which  they  were  made ;  Bush  v.  State, 
109  Ga.  120,  34  S.  E.  298;  State  v.  Phillips, 
118  la.  660,  92  N.  W.  876;  and  it  is  error 
to  charge  that  they  should  be  treated  as  of 
the  same  weight  and  value  as  evidence  pro- 
duced under  the  usual  tests  and  safeguards; 
People  v.  Kraft,  148  N.  Y.  631,  43  N.  E.  80. 
The  conclusions  of  the  trial  court,  as  to  the 
admissibility  of  the  declarations,  should  not 
be  disturbed  unless  it  is  manifest  that  the 
facts  did  not  warrant  them;  Gipe  v.  State, 
165  Ind.  433,  75  N.  E.  881,  1  L.  R.  A.  (N.  S.) 
419,  112  Am.  St.  Rep.  238;  Swisher  v.  Com., 
26  Gratt.  (Va.)  963,  21  Am.  Rep.  330. 

Such  declarations  are  inadmissible  when 
the  witness  does  not  pretend  to  give  either 
the  words  or  substance  of  what  the  deceased 
said,  or  all  that  he  said;  State  v.  Johnson, 
118  Mo.  491,  24  S.  W.  229,  40  Am.  St  Rep. 
405.  The  admissibility  of  the  declaration  is 
not  affected  by  the  fact  that  subsequently  to 
their  being  made  and  before  death  the  de- 
clarant entertained  a  belief  in  recovery ;  14 
Cox,  Cr.  Cas.  565,  28  Engl.  Rep.  587,  and 
note;  State  v.  Shaffer,  23  Or.  555,  32  Pac. 
545. 

Dying  declarations  must  be  confined  to 
the  statement  of  facts,  not  conclusions; 
State  v.  Horn,  204  Mo.  528,  103  S.  W.  69; 
or  opinions;  State  v.  Horn,  204  Mo.  528,  103 
S.  W.  69  (where  a  statement  that  declarant 
shot  the  accused  in  self-defense  was  ex- 
cluded as  a  mere  conclusion) ;  although  it 
is  to  be  noted  that  the  application  of  the 
"opinion  rule"  to  such  declarations  has  been 
vigorously  disputed;  2  Wigm.  Ev.  §  1447. 
It  is  also  to  be  noted  that  the  controversy 
usually  turns  on  whether  the  expression 
used  is  fact  or  opinion. 

The  admission  of  dying  declarations  has 
been  uniformly  held  not  to  contravene  the 
constitutional  right  of  the  accused  to  be 
confronted  with  the  witnesses  against  him; 


DECLARATION 


799 


DECLARATION 


Mattox  v.  U.  S.,  156  U.  S.  237,  243,  15  Sup. 
Ct.  337,  39  L.  Ed.  409;  Brown  v.  Com.,  73 
Pa.  321,  13  Am.  Rep.  740;  State  v.  Dickin- 
son, 41  Wis.  299;  Robbins  v.  State,  8  Ohio 
St.  131;  Com.  v.  Carey,  12  Cush.  (Mass.)  246; 
2  Wigm.  Ev.  §  1398,  and  note,  citing  the 
cases. 

Tbey  are  admitted  either  for  or  against 
the  accused ;  Mattox  v.  U.  S.,  140  U.  S.  140, 
13  Sup.  Ct  50,  36  L.  Ed.  917;  State  v.  Saun- 
ders, 14  Or.  300,  12  Pac.  441. 

It  has  been  held  that  they  may  be  dis- 
credited by  evidence  of  previous  contradic- 
tory statements ;  State  v.  Lodge,  9  Boost 
(Del.)  542,  33  Atl.  312;  but  with  expressions 
of  doubt  and  one  judge  dissenting,  and  the 
case  has  been  criticised;  9  llarv.  L.  Rev. 
432. 

For  full  discussion  of  dying  declarations 
and  collections  of  cases,  see  2  Wigm.  Ev.  g§ 
1430-1  151;  56  L.  R.  A.  353,  note;  also  an 
article  by  Wilbur  Larremore  urging  that 
their  admission  should  be  abolished  by  stat- 
ute; 41  Am.  L.  Rev.  600. 

Other  Declarations.  Declarations  as  to 
the  physical  or  mental  condition  of  the 
declarant  are  sometimes  admitted  as  an  ex- 
ception to  the  rule  against  hearsay,  as  the 
natural  and  necessary  evidence  of  bodily  or 
mental  feelings,  where  those  are  material 
as  facts  to  be  proved.  The  underlying  prin- 
ciple is  thus  expressed  by  Mellish,  L.  J.,  in 
the  St.  Leonard's  Will  case:  "Whenever  it 
is  material  to  prove  the  state  of  a  person's 
mind,  or  what  was  passing  in  it,  and  what 
were  his  intentions,  then  you  may  prove 
what  he  said,  because  that  is  the  only  means 
by  which  you  can  find  out  what  his  inten- 
tions were."  L.  R.  1  P.  Div.  154,  251.  Thus 
such  declarations  as  to  one's  own  physical 
condition,  as  of  the  existence  of  pain,  have 
been  admitted  in  a  suit  by  declarant  be- 
cause, as  it  was  said,  they  "in  their  very 
nature  must  be  evidence,  though  emanating 
from  the  party  himself  who  seeks  to  prove 
them  in  his  own  favor" ;  Phillips  v.  Kelly, 
29  Ala.  628.  Exclamations  of  pain  and  suf- 
fering were  held  properly  admitted  because 
"this  is  the  natural  and  ordinary  mode  in 
which  physical  pain  and  suffering  are  made 
known  to  others,  and  the  only  mode  by 
which  their  nature  and  extent  can  be  as- 
certained"; Hyatt  v.  Adams,  10  Mid 
which  was  an  action  against  a  surgeon  for 
malpractice  causing  death.  Such  declara- 
tions or  exclamations  are  admitted  when 
made  to  a  physician  in  the  course  of  treat- 
ment; State  v.  Gedicke,  43  N.  J.  L.  8t$; 
but  not  when  he  was  "called  in.  not  to  give 
medical  aid,  but  to  make  up  medical  testi- 
mony." and  the  time  was  post  lifcm  motam; 
Grand  Rapids  &  I.  R.  Co.  v.  Huntley,  38 
Mich.  537,  31  Am.  Rep.  321;  Consolidated 
Traction  Co.  v.  Lambertson,  60  N.  J.  L.  452, 
38  Atl.  6S3,  where  declarations  were  held 
clearly  incompetent  though  even  under  such 


circumstances  natural  expressions  of  pres- 
ent pain  might  not  be. 

It  is  suggested  in  a  note  on  the  last  tw<> 
cases    that    such     testimony    is    admi 
without  the  qualifications  of  I  de  to 

a  physician  and  before  the  contri 
arose;  11  llarv.  L.  Rev.  467.  As  to  the 
former  point  the  Alabama  case  sustains  the 
contention,  but  the  tendency  is  to  extend 
the  cases  to  which  the  post  litem  motam 
rule  is  to  be  applied  and.  as  infra, 

its   limitations   are   too  narrowly   stated   in 
the  note  cited.    In  the  Michigan  c 
Christiancy  leaves  (he  question  open  wheth- 
er it  applies  to  thl  >-s. 

Declarations.  t<>  be  admissible  as  original 
evidence,  must  have  been  made  at  the  time 
of  doing  the  act  to  which  they  relate;  Enos 
v.  Tuttle,  3   Conn.   2s  v.    State,  8 

Smedes  &  M.  (Miss.)  722;  In  re  Taylor,  9 
Paige  Oh.  (N.  Y.)  611;  Cherry  v.  McCall  23 
Ga.  193;  O'Kelly  v.  O'Kelly,  8  Mete.  <  v 
436;  Banfleld  v.  Parker,  36  N.  II.  353;  Tomp- 
kins v.  Saltmarch,  14  S.  &  R.  (Pa.)  275;  1 
B.  &  Ad.  135.     1  of  entries  in  books, 

see  Sterrett  v.  Bull,  l  Binn.  (Pa.)  234;  In- 
graham  v.  I  o  S.  &  it  (Pa.)  285,  11 
Am.  Dec.  730;  Faxon  v.  Hollis,  13  Mass 
427;  Hamilton  v.  State,  36  Ind.  2S0,  10  Am. 
Rep.  22. 

To  authorize  their  admission  as  secon- 
dary evidence,  the  declarant  must  be  dead : 

11  Price  162;    1  C.  &  K.  58;    Davis  v.  Fuller, 

12  Vt  ITS,  36  Am.  Dec.  334:  and  the  dec- 
laration must  have  been  made  before  any 
controversy  arose;    3  Campb.  444:    10  B.  & 

7;  4  M.  &  S.  4S6;  Hamilton  v.  Smith, 
74  Conn.  374,  50  Atl.  884;  Elliott  v.  Pi 
1  Pet.  (V.  S.)  328,  7  L.  Ed.  164.  The  rule 
that  such  declarations  must  have  been  made 
ante  litem  motam  was  applied  to  cases  of 
pedigree  in  the  Berkeley  Peerage  i 
Camp.  401;  and  to  matters  of  public  inter- 
est in  3  id.  4H:  and,  pari  ratione,  the  Con- 
necticut cases  above  cited  apply  the  same 
principle  to  boundary  cases,  the  latest  one 
in  date  excluding  declarations  made  after 
the  controversy  arose  which  would  have 
contradicted  those  <>f  the  same  person  made 
before  it.  which  were  admitted.  In  the  opin- 
ion of  the  supreme  court  approving  this 
ruling.  Judge  Baldwin  said  that,  while  it 
may  seem  hard  that  the  earlier  declarations 
could  not  be  met  by  proof  of  the  later  In- 
consistent ones,  "the  latter,  having  been  ut- 
tered after  the  dispute  which  resulted  In 
this  suit  had  arisen,  do  not  carry  that  ab- 
solute assurance  of  sincerity  and  impartial- 
ity on  which  Is  rested  this  exception  to  the 
rule  excluding  hearsay  evidence."  And  yet 
the  opinion  had  stated  that  at  the  time  of 
the  later  declarations,  which  were  thus  ex- 
cluded, suit  had  not  been  brought,  and  there 
was  no  claim  that  declarant  knew  of  any  dis- 
pute. 

It   must  also   appear   that    the   declarant 


DECLARATION 


800 


DECLARATION 


was  In  a  condition  or  situation  to  know  the 
facts,  or  that  it  was  his  duty  to  know  them; 
9  B.  &  C.  935 ;  2  Sm.  Lead.  Cas.  193,  note. 
The  test  to  be  applied  to  dying  declarations 
to  determine  their  admissibility  is  whether 
a  living  witness  would  have  been  permitted 
to  testify  to  the  matters  contained  in  the 
declaration;  State  v.  Foot  You,  24  Or.  61, 
32  Pac.  1031,  33  Pac.  537. 

The  declarations  of  an  agent  respecting  a 
subject-matter,  with  regard  to  which  he  rep- 
resents the  principal,  bind  the  principal ; 
Story,  Ag.  §§  134-137;  2  Q.  B.  212;  Batch- 
elder  v.  Emery,  20  N.  H.  165;  Winter  v. 
Burt,  31  Ala.  33 ;  Wellington  v.  R.  R.,  158 
Mass.  1S5,  33  N.  E.  393 ;  if  made  in  the  line 
of  his  duty  and  within  the  scope  of  his  au- 
thority; Weeks  v.  Inhabitants  of  Needham, 
156  Mass.  2S9,  31  N.  E.  8;  Pittsburgh  & 
L.  S.  Iron  Co.  v.  Kirkpatrick,  92  Mich.  252, 
52  N.  W.  628;  Van  Doren  v.  Bailey,  4S 
Minn.  305,  51  N.  W.  375;  if  made  during 
the  continuance  of  the  agency  with  regard 
to  a  transaction  then  pending;  8  Bingh.  451; 
Mechanics'  Bank  v.  Bank  of  Columbia,  5 
Wheat  (U.  S.)  336,  5  L.  Ed.  100 ;  Hannay  v. 
Stewart,  6  Watts  (Pa.)  4S7 ;  Woods  v.  Banks, 
14  N.  H.  101;  Hayward  Rubber  Co.  v. 
Duncklee,  30  Vt.  29;  Raiford  v.  French,  11 
Rich.  (S.  C.)  367;  Winter  v.  Burt,  31  Ala. 
33;  Burgess  v.  Inhabitants  of  Wareham,  7 
Gray  (Mass.)  345;  Vail  v.  Judson,  4  E.  D. 
Smith  (N.  Y.)  165;  Idaho  Forwarding  Co.  v. 
Forwarding  Ins.  Co.,  8  Utah,  41,  29  Pac. 
S26,  17  L.  R.  A.  5S6 ;  and  similar  rules  ex- 
tend to  partners'  declarations;  1  Greenl. 
Ev.  §  112;  Fail  v.  McArthur,  31  Ala.  26; 
Tucker  v.  Peaslee,  36  N.  H.  167;  Slipp  v. 
Hartley,  50  Minn.  118,  52  N.  W.  3S6,  30 
Am.  St.  Rep.  629.     See  Partner. 

Where  several  defendants  are  interested 
in  the  relief  prayed  against  them,  admis- 
sions of  one  of  them,  made  against  his  own 
interest,  are  admissible  in  evidence  to  af- 
fect him,  although  they  would  not  be  evi- 
dence to  affect  his  co-defendants.  See  Grace 
v.  Nesbitt,  109  Mo.  9,  18  S.  W.  1118;  Red- 
ding v.  Wright,  49  Minn.  322,  51  N.  W.  1056 ; 
Roberts  v.  Kendall,  3  Ind.  App.  339,  29  N. 
E.  487. 

As  to  declarations  made  over  a  telephone, 
see  Telephone. 

When  more  than  one  person  is  concerned 
in  the  commission  of  a  crime,  as  in  cases  of 
riots,  conspiracies,  and  the  like,  the  declara- 
tions of  either  of  the  parties,  made  while 
acting  in  the  common  design,  are  evidence 
against  the  whole;  3  B.  &  Aid.  566;  Com. 
v.  Crowninshield,  10  Pick.  (Mass.)  497 ;  State 
v.  Thibeau,  30  Vt.  100;  Mack  v.  State,  32 
Miss.  405;  Poole  v.  Gerrard,  9  Cal.  593; 
McKenzie  v.  State,  32  Tex.  Cr.  R.  568,  25 
S.  W.  426,  40  Am.  St.  Rep.  795;  People  v. 
Collins,  64  Cal.  293,  30  Pac.  847;  but  the 
declarations  of  one  of  the  rioters  or  conspir- 
ators   made    after    the   accomplishment    of 


their  object  and  when  they  no  longer  acted 
together,  are  evidence  only  against  the  par- 
ty making  them;  2  Russ.  Cr.  572;  1  Mood. 
&  M.  501 ;  Brown  v.  U.  S.,  150  U.  S.  93,  14 
Sup.  Ct.  37,  37  L.  Ed.  1010 ;  Sparf  v.  U.  S., 
156  U.  S.  58,  15  Sup.  Ct.  273,  39  L.  Ed.  313. 
And  see  2  C.  &  P.  232;  Chelmsford  Co.  v. 
Demarest,  7  Gray  (Mass.)  1;  Com.  v.  Ingra- 
ham,  id.  46.  If  one  of  two  persons  accused 
of  having  together  committed  a  crime  of 
murder  makes  a  voluntary  confession  in 
the  presence  of  the  other,  under  such  cir- 
cumstances that  he  would  naturally  have 
contradicted  it  if  he  did  not  assent,  the  con- 
fession is  admissible  in  evidence  against 
both ;  Sparf  v.  U.  S.,  156  U.  S.  51,  15  Sup. 
Ct.  273,  39  L.  Ed.  343. 

See  Hearsay  Evidence;  Boundary;  Mar- 
riage; Domicil;  Reputation;  Pedigree; 
Confession.  And  for  an  extensive  collection 
of  cases  on  the  points  herein  stated  see 
Chamb.  Best.  Ev.  §§  496-505  and  the  Amer- 
ican notes  thereto. 

In  Scotch  Law.  The  prisoner's  statement 
before  a  magistrate. 

When  used  on  trial,  It  must  be  proved 
that  the  prisoner  was  in  his  senses  at  the 
time  of  making  it,  and  made  it  of  his  own 
free  will;  2  Hume  328;  Alison,  Pr.  557.  It 
must  be  signed  by  the  witnesses  present 
when  it  was  made;  Alison,  Pr.  557,  and  by 
the  prisoner  himself;  Arid.  Just.  70.  See 
Paterson,  Comp.  §§  952,  970. 


DECLARATION   OF   INDEPENDENCE. 

A  public  act  by  which,  through  the  Conti- 
nental Congress,  the  thirteen  British  col- 
onies in  America  declared  their  independ- 
ence, in  the  name  and  by  the  authority  of 
the  people,  on  the  fourth  day  of  July,  1776, 
wherein  are  set  forth: — 

Certain  natural  and  inalienable  rights  of 
man ;  the  uses  and  purposes  of  governments ; 
the  right  of  the  people  to  institute  or  to 
abolish  them;  the  sufferings  of  the  colonies, 
and  their  right  to  withdraw  from  the  tyr- 
anny of  the  king  of  Great  Britain ; 

The  various  acts  of  tyranny  of  the  British 
king ; 

The  petitions  for  redress  of  those  injuries, 
and  the  refusal  to  redress  them ;  the  recital 
of  an  appeal  to  the  people  of  Great  Britain, 
and  of  their  being  deaf  to  the  voice  of  jus- 
tice and  consanguinity; 

An  appeal  to  the  Supreme  Judge  of  the 
world  for  the  rectitude  of  the  intentions  of 
the  representatives; 

A  declaration  that  the  United  Colonies 
are,  and  of  right  ought  to  be,  free  and  inde- 
pendent states  ;  that  they  are  absolved  from 
all  allegiance  to  the  British  crown,  and  that 
all  political  connection  between  them  and 
the  state  of  Great  Britain  is  and  ought  to 
be  dissolved ; 

A  pledge  by  the  representatives  to  each 
other  of  their  lives,  their  fortunes,  and  their 
sacred  honor. 


DECLARATION  OF  INDEPENDENCE      801      DECLARATION  OF  ST.  PETERSBURG 


The  effect  of  this  declaration  was  the  es- 
tablishment of  the  government  of  the  Unit- 
ed States  as  free  and  independent. 

DECLARATION   OF   INTENTION.  The 

act  of  an  alien  who  goes  before  a  court  of 
record  and  in  a  formal  manner  declares 
that  it  is  bona  fide  his  Intention  to  become 
a  citizen  of  the  United  States,  and  to  re- 
nounce forever  all  allegiance  and  fidelity 
to  any  foreign  prince,  potentate,  state,  or 
sovereignty  whereof  at  the  time  he  may  be 
a  citizen  or  subject.  See  Act  of  June  29, 
1906 ;  R.  S.  §  2174. 

This  declaration  must,  in  ordinary  cases, 
be  made  at  least  two  years  before  his  admis- 
sion. Id.  But  there  are  exceptions  to  this 
rule.     See  Naturalization. 

DECLARATION  OF  LONDON.  A  declara- 
tion concerning  the  laws  of  naval  war. 
agreed  upon  February  2(i,  1909.  by  the  pow- 
ers assembled  at  the  London  Naval  Confer- 
ence. The  preamble  states  that  the  Dec- 
laration was  made  in  view  of  the  desirabil- 
ity of  an  agreement  upon  the  rules  to  be 
applied  by  the  International  Prize  Court  es- 
tablished by  the  Second  Hague  Conference. 
A  preliminary  provision  states  that  it  is 
agreed  that  the  rules  adopted  "correspond 
in  substance  with  the  generally  recognized 
principles  of  international  law."  The  sub- 
jects dealt  with  by  the  Declaration  include 
Blockade,  Contraband,  Un-neutral  Service, 
Destruction  of  Neutral  Prizes,  Transfer  to 
Neutral  Flag,  Enemy  Character,  Convoy, 
Search,  and  Compensation.  The  Declara- 
tion was  signed  by  all  the  powers  represent- 
ed at  the  Conference,  but  ratifications  have 
not  yet  been  exchanged.    Higgins,  538-613. 

DECLARATION  OF  PARIS.  A  declara- 
tion respecting  international  maritime  law- 
set  forth  by  the  leading  powers  of  Europe 
at  the  Congress  of  Paris  April  16,  1S56. 
The  several  articles  are: 

1.  Privateering  is  and  remains  abolished. 

2.  The  neutral  flag  covers  enemy's  goods, 
except  contraband  of  war. 

3.  Neutral  goods,  except  contraband  of 
war,  are  not  liable  to  confiscation  under  a 
hostile  flag. 

4.  Blockades,  to  be  binding,  must  be  effec- 
tive. 

The  states  not  represented  at  the  Con- 
gress were  invited  to  adhere  to  the  Declara- 
tion, and  the  majority  did  so.  The  United 
States  refused  to  accept  the  Declaration, 
owing  to  the  rejection  by  the  Congress  of 
the  "Marcy  Amendment"  exempting  private 
property  from  capture  at  soa.  But  the  Unit- 
ed States  adhered  to  the  rules  of  the  Dec- 
laration during  the  war  with  Spain  in  1898. 
The  Convention  Relative  to  the  Conversion 
of  Merchant-Ships  into  War-Ships,  adopted 
at  The  Hague  in  1907,  was  directed  against 
a  threatened  evasion  of  the  Declaration  of 
Taris  in  the  form  of  Volunteer  Navies.  Hig- 
gins, 1-4. 

Bouv.— 51 


DECLARATION  OF  ST.  PETERSBURG. 

A  declaration  made  at  St.  Petersburg  in 
1868  on  behalf  of  certain  of  the  powers  in 
relation  to  the  prohibition  of  the  use  of 
explosive  bullets  in  time  of  war. 

DECLARATION  OF  TRUST.  The  act  by 
which  an  individual  acknowledges  that  a 
property,  the  title  of  which  he  holds,  does 
in  fact  belong  to  another,  for  whose  use  he 
holds  the  same. 

The  instrument  in  which  such  an  acknowl- 
edgment is  made. 

Such  a  declaration  is  not  always  in  writ 
ing;    though  it  is  highly  proper  it  should  be 
so;    Hill,   Trust.   49,   note  y;     Sugden, 
200;    1  Washh.  R.  P.     See  Tiedm.  Eq.  Jur. 
296;    Frauds,  Statute  or;   T 

It  differs  from  a  declaration  of  a  use.  (1) 
The  word  "use"  is  restricted  and  refers  only 
to  real  estate.  (2)  Use  was  of  common  oc- 
currence in  times  when  there  existed  no 
method  by  which  the  moral  rights  and 
claims  of  the  cestui  <iue  use  could  be  en- 
forced, whereas  trust,  when  employed  in 
pari  materia  with  use,  has  always  contain- 
ed within  it  a  necessary  implication  that 
the  rights  and  claims  of  the  cestui  que  trust 
would  be  enforced  in  equity,  and.  since  the 
coming  into  operation  of  the  Judicature 
Act  of  1873,  in  England,  in  courts  of  law 
also;    Stroud  Jud.  Diet     See  Uses. 

DECLARATION  OF  WAR.  The  public 
proclamation  of  the  government  of  a 
by  which  it  declares  itself  to  be  at  war  with 
the  foreign  power  mentioned,  and  which  for- 
bids all  and  every  one  to  aid  or  assist  the 
common  enemy. 

The  power  of  declaring  war  is  vested  in 
congress  by  the  constitution,  art.  1,  s.  8.  §  1L'. 
There  is  no  form  or  ceremony  necessary  ex- 
cept the  passage  of  the  act.  A  manifesto 
stating  the  causes  of  the  war  is  usually  pub- 
lished ;  but  war  exists  as  soon  as  the  act 
takes  effect. 

The  necessity  of  a  declaration  of  war  has 
long  been  a  subject  of  controversy  between 
publicists.  In  ancient  times  it  was  customary 
to  precede  hostilities  by  a  public  declaration 
communicated  to  the  enemy,  and  to  send  a 
herald  to  demand  satisfaction.  II  Philllpson 
197.  In  modern  times  wars  have  more  often 
begun  without  any  declaration,  but  several 
instances  of  declarations  during  the  19th 
century  show  a  return  to  the  former  prac- 
tice. At  the  Hague  Conference  of  1907  a 
convention  was  adopted  providing  that  the 
contracting  powers  should  not  commence 
hostilities  "without  a  previous  and  unequiv- 
ocal warning,  which  shall  take  the  form  ei- 
ther of  a  declaration  of  war,  giving  reasons, 
or  of  an  ultimatum  with  conditional  declara- 
tion of  war."     Higgins,  198-205. 

DECLARATORY.  Something  which  ex- 
plains or  ascertains  what  before  was  uncer- 
tain or  doubtful:  as,  a  declaratory  stat- 
ute, which  simply  declares  or  explains  the 


DECLARATORY 


802 


DECOY  LETTER 


law  or  the  right,  as  it  stood  previous  to  the 
statute;  Sedgw.  Stat.  &  Const.  L.  28;  they 
are  usually  passed  to  put  an  end  to  a  doubt 
as  to  what  the  law  is,  and  declare  what  it 
is  and  what  it  has  been.  1  Bla.  Corn.  86. 
Very  many  of  the  state  statutes  in  this  coun- 
try are  declaratory  of  the  common  law,  and 
were  not  passed  to  quiet  a  doubt  but  to  in- 
corporate into  the  law  of  the  state  well- 
settled  common-law  principles.  As  to  declar- 
atory statutes,  see  Statutes. 

DECLARE.  Often  used  of  making  a  posi- 
tive statement,  as  "declare  and  affirm." 
Bassett  v.  Demi,  17  N.  J.  L.  432.  To  assert ; 
to  publish;  to  utter;  to  announce  clearly 
some  opinion  or  resolution.  Knecht  v.  Ins. 
Co.,  90  Pa.  121,  35  Am.  Rep.  641.  For  its 
use  in  pleading,  see  Declaration. 

DECLINATORY  PLEA.  A  plea  of  sanctu- 
ary or  of  benefit  of  clergy.  4  Bla.  Com.  333. 
Abolished,  6  &  7  Geo.  IV.  c.  28,  s.  6 ;  MozL  & 
W.  Diet.     See  Benefit  of  Clergy. 

DECOCTION.  The  operation  of  boiling 
certain  ingredients  in  a  fluid  for  the  pur- 
pose of  extracting  the  parts  soluble  at  that 
temperature;  the  product  of  this  operation. 

In  a  case  in  which  the  indictment  charged  the 
prisoner  with  having  administered  to  a  woman  a 
decoction  of  a  certain  shrub  called  savin,  it  appear- 
ed that  the  prisoner  had  administered  an  infusion, 
and  not  a  decoction.  The  prisoner's  counsel  insisted 
that  he  was  entitled  to  an  acquittal  on  the  ground 
that  the  medicine  was  misdescribed ;  but  it  was 
held  that  infusion  and  decoction  are  ejusdem  gen- 
eris, and  that  the  variance  was  immaterial.  3 
Camp.  74,  75. 

DEC0CT0R.  In  Roman  Law.  A  bank- 
rupt; a  person  who  squandered  the  money 
of  the  state.     Calvinus,  Lex. 

DEC0LLATI0.       Decollation;     beheading. 

D£C0NFES.  In  French  Law.  A  name 
formerly  given  to  those  persons  who  died 
without  confession,  whether  they  refused 
to  confess  or  whether  they  were  criminals  to 
whom  the  sacrament  was  refused.  Droit  de 
Canon,  par  M.  l'Abbe  Andre ;  Dupin,  Gloss,  to 
Loisel's  Institutes. 

DECOY.  A  pond  used  for  the  breeding 
and  maintenance  of  water-fowl.  11  Mod. 
74,  130;  3  Salk.  9;  Holt  14;  11  East  571. 

DECOY  LETTER.  A  letter  prepared  and 
mailed  on  purpose  to  detect  offenders  against 
the  postal  and  revenue  laws.  U.  S.  v.  Whit- 
tier,  5  Dill.  39,  Fed.  Cas.  No.  16,688. 

The  use  of  decoy  letters  by  inspectors  of 
mails  for  the  purpose  of  ascertaining  the 
depredations  upon  the  mails  is  proper  and 
justifiable  as  a  means  to  that  end;  U.  S.  v. 
Dorsey,  40  Fed.  752. 

A  postal  employe  who  takes  from  the 
mail  under  his  charge  a  package  containing 
things  of  value,  though  placed  in  the  mail 
as  a  decoy  and  addressed  to  a  person  having 
no  existence,  is  punishable,  under  R.  S.  sees. 
3891,  5467,  for  taking  a  .  letter  or  package 
entrusted  to  him;   U.  S.  v.  Wight,  38  Fed. 


106;  U.  S.  v.  Dorsey,  40  Fed.  752;  contra,  U. 
S.  v.  Denicke,  35  Fed.  407;  U.  S.  v.  Matthews, 
35  Fed.  890,  1  L.  R.  A.  104.  The  fact  that 
they  were  decoy  letters  is  immaterial  on  a 
prosecution  for  embezzlement;  Walster  v. 
U.  S.,  42  Fed.  891. 

The  offence  of  sending  letters  by  mail  giv- 
ing information  where  obscene  pictures  can 
be  obtained  does  not  lose  its  criminal  char- 
acter, though  the  letters  were  sent  in  re- 
sponse to  a  decoy  letter,  since  it  does  not 
appear  that  the  accused  was  solicited  to 
use  the  mails  and  thus  to  commit  an  offence ; 
U.  S.  v.  Grimm,  50  Fed.  528. 

A  decoy  letter  placed  in  a  sealed  envelope 
and  addressed  to  a  fictitious  person  in  a 
place  where  there  was  no  post-office  was 
wrapped  up  in  a  newspaper,  enclosed  in  an 
ordinary  paper  wrapper,  sealed  and  properly 
stamped  and  directed  as  the  envelope  inside 
the  packet,  and  in  this  condition  was  handed 
by  a  post-office  inspector  and  placed  by  him 
as  a  decoy  in  a  basket  kept  for  improperly 
illegibly  addressed  mail  matter.  It  was  held 
that  this  was  not  a  mailing  of  the  packet, 
and  that  it  did  not  become  mail  matter; 
U.  S.  v.  Rapp,  30  Fed.  818.  A  letter  with  a 
fictitious  address  which  cannot  be  delivered 
is  "not  intended  to  be  conveyed  by  mail" 
within  the  meaning  of  R.  S.  sec.  3891,  pro- 
viding a  penalty  for  embezzling;  U.  S.  v. 
Denicke,   35   Fed.   407. 

Decoys  are  permissible  to  entrap  criminals, 
or  to  present  opportunity  to  those  having 
criminal  intent  to,  or  who  are  willing  to, 
commit  crime,  but  not  to  create  criminals ; 
U.  S.  v.  Healy,  202  Fed.  349  (selling  liquor 
to  an  Indian). 

DECREE.  The  judicial  decision  of  a  liti- 
gated cause  by  a  court  of  equity.  It  is  also 
applied  to  the  determination  of  a  cause  in 
courts  of  admiralty  and  probate.  It  is  ac- 
curate to  use  the  word  judgment  as  applied 
to  courts  of  law  and  decree  to  courts  of 
equity,  although  the  former  term  is  now 
used  in  a  larger  sense  to  include  both. 
There  is,  however,  a  distinction  between  the 
two  which  is  well  understood,  and  may  wise- 
ly be  preserved  as  tending  to  keep  before 
the»mind  the  distinction  betwen  the  two  ju- 
risdictions— quite  as  fundamental  with  re- 
spect to  the  final  determination  of  a  cause 
as  to  the  forms  of  procedure  and  the  prin- 
ciples of  jurisprudence  applied  by  the  two 
tribunals.  Even  the  modern  tendency  of 
courts  of  law  to  avail  themselves  of  equita- 
ble forms  of  procedure  and  principles  of  de- 
cision has  left  undisturbed  the  well-defined 
line  of  demarcation  between  the  judgment  at 
Law  and  the  decree  in  equity.  It  is  stated 
by  an  able  writer,  thus :  "A  judgment  at 
law  was  either  simply  for  the  plaintiff  or 
for  the  defendant.  There  could  be  no  quali- 
fications or  modifications  of  the  judgment. 
But  such  a  judgment  does  not  always  touch 
the  true  justice   of  the   cause   or   put  the 


DECREE 


803 


DECREE 


parties  in  the  position  they  ought  to  occupy. 
While  the  plaintiff  may  be  entitled,  in  a  giv- 
en case,  to  general  relief,  there  may  be  some 
duty  connected  with  the  subject  of  litiga- 
tion which  he  owes  to  the  defendant,  the 
performance  of  which,  equally  with  the  ful- 
filment of  his  duty  by  the  defendant,  ought, 
in  a  perfect  system  of  remedial  law,  to  be 
exacted.  This  result  was  attained  by  the 
decree  of  a  court  of  equity  which  could  be 
so  moulded,  or  the  execution  of  which  could 
be  so  controlled  and  suspended,  that  the 
relative  duties  and  rights  of  tbe  parties 
could  be  secured  and  enforced;''  Bispb.  Eq. 
§  7. 

It  necessarily  springs  from  the  nature  of 
the  chancery  jurisdiction  that  its  determi- 
nations should  be  cast  in  a  mould  differing, 
toto  coelo,  from  a  judgment  at  law,  and  it 
would  hardly  be  an  exaggeration  to  say  that 
the  essential  character  of  the  decree,  as  de- 
scribed by  the  author  quoted,  is  to  be  found 
in  the  literal  application  of  the  fundamental 
maxim,  "He  who  seeks  equity  must  do  eq- 
uity." Accordingly,  it  is  said  that  a  court 
of  equity  will  always  reach,  by  a  direct  de- 
cree, what  would  otherwise  be  accomplished 
by  a  circuity  of  proceedings;  Dodd  v.  Wil- 
son, 4  Del.  Ch.  410.  And  even  when  a  com- 
plainant is  entitled  to  relief  which  it  is  in- 
equitable to  grant  except  upon  a  condition 
to  be  performed  by  him  springing  from  an 
obligation  of  equity  and  good  conscience, 
though  not  from  legal  right,  a  chancellor  may 
make  a  decree  only  upon  such  condition; 
Willard  v.  Tayloe,  8  Wall.  (U.  S.)  557,  19  L. 
Ed.  501;  Bisph.  Eq.  §  43.  In  such  case, 
when  something  remains  to  be  done  by  the 
party  in  order  to  entitle  him  to  relief,  while 
no  present  decree  can  be  made,  as  the  decree 
must  be  absolute  and  final  and  not  contin- 
gent, the  court  will  enter  an  interlocutory 
decree  and  suspend  the  entry  of  a  final  de- 
cree until  the  performance  of  such  condi- 
tion;  Pleasanton  v.  Raughley,  3  Del.  ch.  124; 
and  in  default  thereof  in  a  reasonable  time 
dismiss  the  bill;  Pleasanton  v.  Raughley;  4 
Del.  Ch.  43.  The  doctrine  of  the  wife's  eq- 
uity is  a  familiar  instance  of  this  principle. 

Decrees  are  either  interlocutory  or  final. 
This  distinction  is  well  recognized  and  im- 
portant; Comely  v.  Marckwald,  131  U.  S. 
159,  9  Sup.  Ct.  744,  33  L.  Ed.  117:  Richmond 
v.  Atwood,  52  Fed.  10.  2  C.  C.  A.  G07,  17  L. 
R.  A.  015  (citing  many  cases  and  discussing 
the  distinction  at  large),  In  the  strictest 
sense  all  decrees  are  interlocutory  until  sign- 
ed and  enrolled;  -  Dan.  Ch.  Pr.  0th  Am.  ed. 
9S7,  n.  1;  but  it  is  not  in  this  sense  that  the 
terms  are  in  practice  used.  But  while  there 
is  a  distinction  well  understood,  it  is  not  al- 
ways easy  of  exact  definition.  The  exist- 
ence of  the  two  classes  is,  however,  neces- 
sary in  American  cJvncery  courts,  as  the 
right  of  appeal  is  frequently  confined  to  final 
decrees,  as  in  the  federal  courts.    The  form- 


er Is  entered  on  some  plea  or  Issue  a 
in  the  cause  which  does  n<>t  decide  the  main 
question;  the  latter  settles  the  matter  in  dis- 
pute ;  and  a  final  decree  has  the  same  effect 
as  a  judgment  at  law:  2  Madd.  4012;  1  Ch.  Ca. 
27;  2  Vera  89;  4  Brown,  P.  C.  l 
Viner,  Abr.  394;  7  Comyns,  Dig.  145;  1  Belt, 
Suppl.  Ves.  223;  MeGarrahan  v.  Maxwell,  28 
CaL  7.",  xr>.  For  forms  of  decrees,  see  Seton, 
Decrees;  2  Dan  Ch.  1'r.  986. 

The  federal  equity  rule  No.  71    (in  effect 
Feb.   1,   1913,   33   Sup.    Ct.    xxxviiii    pr 
that  decrees   shall   not   recite   the  pleadings 
nor  any   other  prior  proceedings. 

Final  Decree.  One  which  finally  disposes 
of  a  cause,  so  that  nothing  further  is  left 
for  the  court  to  adjudicate.  See  2  Dan.  Ch. 
Pr.  ii!>4,  n. 

A  decree  which  determines  the  particular 
cause.  It  is  not  confined  to  those  which  ter- 
minate all  litigation  on  the  same  right  1 
Kent  ::it;. 

.\  decree  which  leaves  the  case  in  such  con- 
dition tli.it.  if  on  appeal  there  be  an  affirm- 
ance, nothing  remains  for  the  court  below, 
but  to  execute  it.  Lod-je  v.  Twell,  135  I '.  S. 
232,  10  Sup.  Ct  745,  34  L.  Ed.  153;  Mower  v. 
Fletcher,  114  U.  S.  127,  5  Sup.  Ct  799,  29 
L.  Ed.  117;  see  Haseltine  v.  Central  Rank, 
183  U.  S.  131,  22  Sup.  Ct.  49,  46  L.  Ed.  117. 

A  decree  which  disposes  ultimately  of  the 
suit  Ad.  Eq.  •':7.~..  After  such  decree  has 
been  pronounced,  the  cause  is  at  an  end,  and 
no  further  hearing  can  lie  had;  id.  388; 
Lakin  v.  Lawrence,  195  .Mass.  27,  SO  N.  B. 
578. 

No  court  can  reverse  or  annul  its  decree 
after  the  term  in  which  it  wi  d,  nor 

can  a  decree  be  changed  or  modi  lied  so  as 
substantially  to  vary  or  affect  it;  Illinois  v. 
R.  Co.,  184  U.  S.  77,  22  Sup.  Ct  300,  46  L. 
Ed.  !i<>.  citing  prior  cases;  [1904]  l  K.  B. 
6;  Bissell  Carpet-Sweeper  Co.  v.  Sweeper  Co., 
72  Fed.  545,  19  C.  C.  A.  25;  Marshall  En- 
gine Co.  v.  Engine  Co.,  203  Mass.  410,  89  N. 
E.  54S ;  nor  even  on  petition  for  rehearing 
where  error  in  tbe  findings  is  shown;  Pettit 
v.  One  steel  Lighter,  104  Fed.  1002;  except 
to  correct  clerical  mistakes:  Cameron  v.  Mc- 
Roberts,  3  Wheat  591;  Illinois  v.  K.  Co., 
isi  r.  s.  77.  22  sup.  Ct  300,  u;  I.,  Ed.  440; 
[1901]  1  K.  B.  694  :  or  to  reinstate  a 
dismissed  by  mistake:  Id.  The  Palmyra.  12 
Wheat.  10,  6  L.  Ed.  531  :  and  a  mistake  in 
an  order  may  be  rectified  while  an  appeal 
is  pending;  [1903]  P.  88.  In  equity  jui 
tiou  of  the  cause  is  sometimes  retained  to 
make  further  orders  for  executing  the  decree 
which  may  result  in  modifying  details  of  the 
original  decree;  Mootry  v.  Grayson,  104  Fed. 
613,  M  C.  0.  A.  83;  and  in  admiralty  a  bill 
of  review  may  he  allowed  after  the  term, 
on  petition  of  the  libellant,  who.  being  him- 
self free  from  fraud  or  negligence,  is  the 
victim  of  what  is  equivalent  to  fraud;  Hall 
v.   Chisholm,   117  Fed.  807,  55  C.  C.   A.  31, 


DECREE 


804 


DECREE 


where  the  cases  are  reviewed;  in  this  case 
certiorari  was  refused;  Chisholm  v.  Hall, 
191  U.  S.  571,  24  Sup.  Ct.  843,  48  L.  Ed.  307. 

A  decree  may  be  impeached  for  fraud  in 
obtaining  it,  but  for  this  purpose  a  bill  of 
review  is  not  available,  being  a  continuance 
of  the  original  litigation ;  an  original  bill 
must  be  resorted  to  as  a  new  and  independ- 
ent litigation  and  it  will  lie  pending  an  ap- 
peal from  the  original  decree;  Dowagiac  Mfg. 
Co.  v.  Mfg.  Co.,  155  Fed.  524,  84  C.  C.  A. 
38.  In  such  case  relief  can  be  granted  only 
on  the  ground  of  fraud  in  procuring  the 
decree  and  not  of  error  in  granting  it;  Mc- 
Sherry  Mfg.  Co.  v.  Mfg.  Co.,  160  Fed.  948, 
89  C.   C.   A.  26. 

Prior  to  the  establishment  of  the  circuit 
courts  of  appeals  there  was  an  appeal  to  the 
United  States  supreme  court  only  from  final 
decrees  of  the  circuit  courts ;  U.  S.  Rev. 
Stat.  §  692;  and  the  same  is  still  true  of 
appeals  from  those  courts;  U.  S.  Rev.  Stat. 
1  Supp.  903;  except  that  special  provision  is 
made  for  an  appeal  within  a  limited  time 
directly  to  the  circuit  court  of  appeals 
from  an  order  granting  or  refusing  an  inter- 
locutory injunction  or  appointing  a  receiver, 
notwithstanding  that  an  appeal  from  a  final 
decree  might  be  taken  directly  to  the  su- 
preme court;  Jud.  Code  §  129,  U.  S.  Comp. 
St.  Supp.  (1911)  194.  An  order  modifying 
an  interlocutory  decree  for  a  broad  per- 
petual injunction,  so  as  to  permit  a  limit- 
ed sale  of  the '  articles  of  which  the  sale 
was  restrained,  is  appealable  under  this 
act;  Bissell  Carpet-Sweeper  Co.  v.  Sweeper 
Co.,  72  Fed.  545,  19  C.  C.  A.  25,  where  the 
right  of  appeal  and  the  different  kinds  of  de- 
crees in  England  and  the  United  States  are 
elaborately  discussed.  The  omission  of  the 
word  "final"  in  section  5  of  the  Act  of 
March  3,  1891,  does  not  extend  the  right  of 
appeal  to  any  question  of  jurisdiction  in  ad- 
vance of  final  judgment  or  decree ;  McLish  v. 
Roff,  141  U.  S.  661,  12  Sup.  Ct.  118,  35  L. 
Ed.  893.  Accordingly,  the  question  what  is 
a  final  decree  is  one  of  constant  occurrence 
and  importance  as  determining  the  jurisdic- 
tion of  the  appellate  courts.  The  same 
question  arises  under  the  constitutional  and 
statutory  regulations  of  appeals  in-  many 
of  the  states,  although  in  some  of  them  the 
right  of  appeal  is  not  limited  to  final  de- 
crees ;  e.  g.  Delaware,  where  it  is  extended 
to  interlocutory  decrees  or  orders,  if  prayed 
before  the  first  day  of  the  following  term, 
while  it  may  be  taken  from  a  final  decree 
within  two  years  after  it  is  signed. 

Another  reason  why  the  distinction  is  im- 
portant is  that  a  final  decree,  entered  of  rec- 
ord and  not  directed  to  be  without  prejudice 
is  a  bar  to  another  bill  filed  between  the 
same  parties  for  the  same  subject-matter; 
Cochran  v.  Couper,  2  Del.  Ch.  27. 

In  England  the  question  whether  a  decree 
or  order  is  final  or  interlocutory  is  in  many 
cases  material,  as  affecting  the  right  or  the 


time  of  appeal,  and  it  has  been  much  dis- 
cussed with  some  contrariety  of  opinion. 
In  [1903]  1  K.  B.  547  (C.  A.),  Lord  Alver- 
stone,  C.  J.,  stated  "the  real  test"  to  be 
whether  the  order  did  in  fact  finally  dispose 
of  the  right  of  the  parties,  without  respect 
to  what  would  have  been  the  effect  of  the 
order  if  the  case  had  been  decided  the  other 
way,  and  the  court  of  appeal  unanimously  so 
decided,  following  the  decision  in  9  Q.  B.  D. 
62,  and  disapproving  a  later  ruling  in  [1891] 
1  Q.  B.  (C.  A.)  734,  where  it  was  held  that 
an  order  would  be  considered  interlocutory 
unless  "whichever  way  it  went  it  would 
finally  determine  the  right  of  the  parties," 
and  which  was  cited  as  authority  in  [1902] 
1  Ch.  29.  Subsequently  it  was  said  by 
Cozens-Hardy,  M.  R.,  in  [1907]  2  Ch.  145, 
that  only  a  short  time  before  the  full  court 
was  summoned  "with  a  view  to  laying  down 
some  definite  pronouncement  or  rule"  on  the 
question  "what  order  is  interlocutory  and 
what  is  final,"  characterized  by  him  as  "un- 
doubtedly one  of  very  great  difficulty,"  but 
the  court  had  declined  to  do  so,  confining  it- 
self to  the  decision  of  the  particular  case, 
and  this  course  he  proposed  to  follow.  In 
the  case  to  which  he  referred,  [1906]  2  K.  B. 
569,  Collins,  M.  R.,  emphatically  disapproved 
of  "the  enunciation  of  any  general  rule  on 
the  question  what  orders  are  final  and  what 
interlocutory,"  and  considered  that  it  should 
only  be  done  by  general  rule  of  court. 

In  this  country  the  same  difficulty  of  ex- 
act definition  was  expressed  by  Mr.  Justice 
Brown,  who  said  that  "probably  no  question 
of  equity  practice  has  been  the  subject  of 
more  frequent  discussion  in  this  court,"  and 
he  reviewed  the  cases,  remarking  that  they 
"are  not  altogether  harmonious";  McCourkey 
v.  Ry.  Co.,  146  U.  S.  536,  13  Sup.  Ct.  170,  36 
L.  Ed.  1079;  the  principal  ones  being  also 
collected  by  Mr.  Justice  Blatchford  in  Key- 
stone Manganese  &  Iron  Co.  v.  Martin,  132 
U.  S.  91,  10  Sup.  Ct.  32,  33  L.  Ed.  275. 

Where  the  whole  law  of  a  case  is  settled 
by  a  decree,  and  nothing  remains  to  be 
done,  unless  a  new  application  be  made  at 
the  foot  of  the  decree,  the  decree  is  a  final 
one  so  far  as  respects  a  right  of  appeal ; 
French  v.  Shoemaker,  12  Wall.  (U.  S.)  86,  20 
L.  Ed.  270;  and  so  is  a  decree  dismissing  a 
bill  with  costs,  although  they  be  afterwards 
taxed  and  decree  entered  for  them;  Fowler 
v.  Hamill,  139  U.  S.  549,  11  Sup.  Ct.  663,  35 
L.  Ed.  266;  but  a  decree  of  foreclosure  and 
sale  is  not  final,  in  the  sense  which  allows 
an  appeal  from  it,  so  long  as  the  amount 
due  upon  the  debt  must  be  determined,  and 
the  property  to  be  sold  ascertained  and  de- 
fined;  North  Carolina  R.  Co.  v.  Swasey,  23 
Wall.  (U.  S.)  405,  23  L.  Ed.  136;  see  Jones 
v.  Davenport,  45  N.  J.  Eq.  77,  17  Atl.  570; 
nor  is  an  order  remanding  a  case  to  the  state 
court;  Joy  v.  Adelbert  College,  146  U.  S.  355, 
13  Sup.  Ct.  186,  36  L.  Ed.  1003;  but  a  de- 
cree for  foreclosure  and  sale  of  mortgaged 


DECREE 


805 


DECREE 


premises  is  final  and  may  be  appealed  from 
without  waiting  for  the  return  and  confirma- 
tion of  the  sale  by  a  decretal  order ;  Michoud 
v.  Girod,  4  How.  (U.  S.)  503,  11  L.  Ed.  1076. 
And  so  is  a  decree  ordering  the  dismissal  of 
a  libel  if  not  amended  within  ten  days, 
where  an  appeal  is  taken  without  amending 
it;  The  Three  Friends,  166  U.  S.  1,  17  Sup. 
Ct.  495,  41  L.  Ed.  897.  When  the  finality  is 
in  doubt,  and  was  negatived  by  the  court 
below,  but  is  claimed  in  the  Supreme  Court, 
the  doubt  will  be  resolved  against  finality; 
McGourkey  v.  Ry.  Co.,  146  U.  S.  536,  13  Sup. 
Ct.  170,  36  L.  Ed.  TOT'.i. 

A  decree  fixing  the  priority  of  claims 
against  an  insolvent  corporation,  and  di- 
recting the  sale  of  its  property  for  their 
payment,  is  a  final  decree  within  equity  rule 
88,  relating  to  rehearings;  Hoffman  v.  Knox, 
50  Fed.  484,  1  C.  C.  A.  535.  A  decree  is  final 
which  disposes  of  every  matter  of  conten- 
tion between  the  parties,  except  as  to  the 
amount  of  one  severable  item,  not  relating 
to  appellant,  and  refers  the  case  to  a  master 
to  ascertain  tiiat ;  Hill  v.  R.  Co.,  140  U.  S.  52, 
11  Sup.  Ct.  690,  35  L.  Ed.  331. 

If  the  decree  decides  the  rights  to  prop- 
erty and  orders  it  to  be  delivered  up  or  sold, 
or  adjudges  a  sum  of  money  to  be  paid,  and 
the  party  is  entitled  to  have  such  decree 
carried  into  immediate  execution,  it  is  a 
final  decree ;  Forgay  v.  Conrad,  6  How.  (U.  S.) 
203,  12  L.  Ed.  404.  In  such  cases  it  is  held 
that  the  decree  is  final  upon  the  merits,  and 
the  ulterior  proceedings,  as  in  the  foreclosure 
case,  constitute  but  a  mode  of  executing 
the  original  decree ;  Michoud  v.  Girod,  4 
How.   (U.   S.)  503,  11  L.  Ed.  1076. 

The  multiplicity  of  cases  on  this  subject 
is  too  great  for,  citation  here,  but  the  prin- 
ciple applied  is  illustrated  by  those  cited, 
and  as  to  a  particular  case  the  course  of 
decisions  must  be  critically  examined.  Cas- 
es will  be  found  collected  in  notes  to  U.  S. 
Rev.  Stat.  §  692  and  to  2  Dan.  Ch.  Pr.,  6th 
Am.  ed.  ch.  xxvi.  sec.  1.    See  Judgment. 

A  consent  decree  binds  only  the  consent- 
ing parties ;  Myllius  v.  Smith,  53  W.  Va.  173, 
44  S.  E.  542;  and  is  not  binding  upon  the 
court;  Ex  parte  Loung  June,  160  Fed.  259. 
It  cannot  be  modified  without  consent,  even 
at  the  same  term ;  Seiler  v.  Mfg.  Co.,  50  W. 
Va.  208,  40  S.  E.  547;  and  the  consent  may 
be  withdrawn  before  entry;  Herold  v.  Craig. 
59  W.  Va.  353,  53  S.  E.  466. 

Interlocutory  Decree.  An  adjudication  or 
order  made  upon  some  point  arising  during 
the  progress  of  a  cause  which  does  not  de- 
termine finally  the  merits  of  the  question  or 
questions  involved.  Neither  the  courts  nor 
the  text-writers  have  satisfactorily  defined 
this  term.  As  was  well  said  by  Baldwin,  J., 
"The  difficulty  is  in  the  subject  itself;  for, 
by  various  gradations,  the  interlocutory  de- 
cree may  be  made  to  approach  the  final  de- 
cree, until  the  line  of  discrimination  becomes 
too  faint  to  be  readily  perceived."     Cocke's 


Adm'r  v.  Gilpin,  1  Rob.  (Va.)  27.  The  real 
matter  of  Importance  is  to  define  what  is  a 
final  decree,  and  that  being  done,  it  may  be 
generally  stated  that  every  other  order  or 
decree  made  during  the  progress  of  a  cause 
in  chancery  is  interlocutory.  The  test  which 
is  to  be  derived  from  the  cases  can  hardly 
be  better  stated   than  in  a  late  case,   thus: 

Where  something  more  than  the  ministerial 
execution  of  the  decree  as  rendered  is  left 
to  be  done,  the  decree  is  interlocutory,  and 
not  final,  even  though  it  settles  the  equities 
of  the  bill;  Lodge  v.  Twell,  135  U.  S.  JiifiJ, 
10  Sup.  Ct.  745,  34   L.  Ed.  1".;. 

As  every  decree  inter  partes  is  either  final 
or  interlocutory,  all  that  has  been  said  upon 
the  former  head,  with  the  citations,  must 
also  be  read  in  connection  with  this. 

Decree  Pro  Confesso.  An  order  or  decree 
of  a  court  of  chancery  that  the  allegations 
of  the  bill  be  taken  as  confessed,  as  against 
a  defendant  in  default,  and  permitting  the 
plaintiff  to  go  on  to  a  hearing  ex  parte. 

"A  decree  pro  confesso  is  one  entered  when 
the  defendant  has  made  default  by  not  ap- 
pearing in  the  time  prescribed  by  the  rules 
of  court.  A  decree  nisi  is  drawn  by  the 
plaintiff's  counsel,  and  is  entered  by  the 
court  as  it  is  drawn.  A  decree,  when  the 
bill  is  taken  pro  confesso,  is  pronounced  by 
the  court  alter  heating  the  pleadings  and 
considering  the  plaintiff's  equity ;''  Freem. 
Judg.  §  11. 

Such  a  decree  is  also  entered  when  the 
defendant,  having  appeared,  has  not  answer- 
ed. The  effect  of  such  a  decree  is  that  the 
facts  set  forth  in  the  bill  are  taken  as  true, 
and  a  decree  made  thereon  according  to  the 
equity  of  the  case.  It  was  formerly  the  prac- 
tice to  put  the  plaintiff  to  his  proof  of  the 
substance  of  the  bill ;  Rose  v.  Woodruff.  4 
Johns.  Ch.  (N.  Y.)  547;  1  Dan.  Ch.  IT..  5th 
Am.  ed.  517,  n.;  but  the  practice  of  taking 
the  bill  pro  confesso  is  now  generally  estab- 
lished; id.  518;  and  the  subject  is,  in  most 
courts  of  chancery,  regulated  by  rule  of 
court. 

In  such  decree,  in  admiralty  as  well  as  In 
equity,  the  amount  of  damages  must  be  as- 
certained from  the  evidence  and  not  from 
the  allegations  of  the  libel  or  bill  :  Cape  Fear 
Towing  &  Transp.  Co.  v.  Pearsaii.  90  Fed. 
435,  :;::  O.  O.  A.  16L 

The  usual  modern  practice  is  substantially 
that  provided  in  Equity  Rules  If',  17.  of  the 
United  States  courts  (33  Sup.  Ct.  xxiiii.  Up- 
on motion,  it  appearing  from  the  record  that 
the  facts  warrant  it,  an  order  is  entered  that 
the  bill  be  taken  pro  confesso,  and  the  cause 
proceeds  ex  parte,  and  the  court  may  pro- 
ceed to  a  final  decree  after  thirty  days  from 
try    of   the  order. 

Such  ad  nnot  be  entered  when  the 

bill  contains  a  great  lack  of  precision;  Mar- 
shall v.  Tenant.  '_'  J.  J.  Marsh.  (Ky.)  155,  IS 
Am.  Dec.  126;  but  only  when  the  allegations 
of  the   bill  are  specific,  and  the  defendant 


DECREE 


806     DECRETALES  BONIFACII  OCTAVI 


has  been  properly  served;  Harmon  v.  Camp- 
bell, 30  111.  25;  Boston  v.  Nichols,  47  111. 
353;  Colerick  v.  Hooper,  3  Ind.  31(5,  56  Am. 
Dec.  505;  Russell  v.  Lathrop,  122  Mass.  302. 
When  only  one  defendant  answers,  but 
he  disproves  the  whole  case  made  by  the 
bill,  a  decree  pro  confesso  cannot  be  entered 
against  those  who  fail  to  answer;  Ashby  v. 
Bell's  Adm'r,  80  Va.  811. 

A  decree  pro  confesso  cannot  be  safely  en- 
tered against  an  infant;  30  Beav.  148;  Bank 
of  U.  S.  v.  Ritchie,  8  Pet.  (U.  S.)  128,  8  L. 
Ed.  890;  Daily's  Adm'r  v.  Reid,  74  Ala.  415; 
Quigley  v.  Roberts,  44  111.  503;.  Tucker  v. 
Bean,  65  Me.  352;  Wells  v.  Smith,  44  Miss. 
296;  Mills  v.  Dennis,  3  Johns.  Ch.  (N.  Y.) 
367;  though  this  is  sometimes  done  on  con- 
sent of  his  solicitor;  Walsh  v.  Walsh,  116 
Mass.  377,  17  Am.   Rep.   162. 

Equity  Rule  8  (S.  C.  of  U.  S.;  33  Sup.  Ct. 
xxi)  provides:  "If  a  mandatory  order,  in- 
junction, or  decree  for  specific  performance 
of  any  act  or  contract  be  not  complied  with, 
the  court  or  a  judge,  besides,  or  instead  of, 
proceedings  against  the  disobedient  party 
for  a  contempt  or  by  sequestration,  may  by 
order  direct  that  the  act  required  to  be  done, 
be  done,  so  far  as  practicable,  by  some  other 
person  appointed  by  the  court  or  judge,  at 
the  cost  of  the  disobedient  party,  and  the 
act,  when  so  done,  shall  have  like  effect  as 
if  done  by  him."  See  Writ  of  Assistance. 
I IV  Legislation.  In  some  countries,  as  in 
France,  some  acts  of  the  legislature  or  of  the 
sovereign,  which  have  the  force  of  law  are 
called  decrees:  as,  the  Berlin  and  Milan  de- 
crees. 

DECREE  NISI.  In  English  Law.  A  de- 
cree for  a  divorce,  not  to  take  effect  till  aft- 
er such  time,  not  less  than  six  months  from 
the  pronouncing  thereof,  as  the  court  shall 
from  time  to  time  direct.  During  this  period 
any  person  may  show  cause  why  the  decree 
should  not  be  made  absolute ;  29  Vict.  c.  32, 
s.  3 ;  23  &  24  Vict.  c.  144,  s.  7 ;  2  -Steph. 
Com.  281;    Mozl.  &  W.  Diet. 

The  term  is  also  sometimes  applied  to  a 
decree  entered  provisionally  to  become  final 
at  a  time  therein  named,  unless  cause  is 
shown  to  the  contrary. 

DECREPIT  (Ft.  decrepit;  Lat.  decrepitus). 
Infirm;  disabled,  incapable,  or  incompetent, 
from  either  physical  or  mental  weakness  or 
defects,  whether  produced  by  age  or  other 
cause,  to  such  an  extent  as  to  render  the  in- 
dividual comparatively  helpless  in  a  personal 
conflict  with  one  possessed  of  ordinary  health 
and  strength.  Hall  v.  State,  16  Tex.  App. 
11,  49  Am.  Rep.  824. 

DECRETAL  ORDER.  An  order  made  by 
the  court  of  chancery,  upon  a  motion  or  peti- 
tion, in  the  nature  of  a  decree.  2  Dan.  Ch. 
Pr.  638. 


DECRETALES    BONIFACII    OCTAVI.     A 

supplemental    collection    of   the    canon   law, 


published  by  Boniface  VIII.  in  129S,  called, 
also,  Liber  Sextus  Decretalium  (Sixth  Book 
of  the  Decretals).  1  Kaufm.  Mackeldey,  Civ. 
Law  82,  n.     See  Decretals. 

DECRETALES     GREG0RII     N0NI.      The 

decretals  of  Gregory  the  Ninth.  A  collection 
of  the  laws  of  the  church,  published  by  order 
of  Gregory  IX.  in  1227.  It  is  composed  of 
five  books,  subdivided  into  titles,  and  each 
title  is  divided  into  chapters.  They  are  cited 
by  using  an  X  (or  extra);  thus,  Cap.  &  X  de 
Regulis  Juris,  etc.  1  Kaufm.  Mackeld.  Civ. 
Law  83,  n. ;   Butler,  Hor.  Jur.  115. 

DECRETALS.  Canonical  epistles,  written 
by  the  pope  alone,  or  by  the  pope  and  cardi- 
nals, at  the  instance  or  suit  of  one  or  more 
persons,  for  the  ordering  and  determining  of 
some  matter  in  controversy,  and  which  have 
the  authority  of  a  law  in  themselves. 

The  decretals  were  published  in  three  volumes. 
The  first  volume  was  collected  by  Raymundus  Bar- 
cinius,  chaplain  to  Gregory  IX.,  about  the  year  1227, 
and  published  by  him  to  be  read  in  schools  and 
used  in  the  ecclesiastical  courts.  The  second  vol- 
ume is  the  work  of  Boniface  VIII.,  compiled  about 
the  year  1298,  with  additions  to  and  alterations  of  the 
ordinances  of  his  predecessors.  The  third  volume 
is  called  the  Clementines,  because  made  by  Clem- 
ent V.,  and  was  published  by  him  in  the  council  of 
Vienna,  about  the  year  1308.  To  these  may  be  added 
the  Extravagantes  of  John  XXII.  and  other  bishops 
of  Rome,  which,  relatively  to  the  others,  are  called 
Novella  Constitutiones.  Ridley's  View,  etc.  99,  100 ; 
1  Fournel,  Hist,   des  Avocats  194,  195. 

The  false  decretals  were  forged  in  the  names  of 
the  early  bishops  of  Rome,  and  first  appeared  about 
A.  D.  845-850.  The  author  of  them  is  not  known. 
They  are  mentioned  in  a  letter  written  in  the  name 
of  the  council  of  Quierzy,  by  Charles  the  Bald,  to 
the  bishops  and  lords  of  France.  See  Van  Espen 
Fleury,  Droit  de  Canon,  by  Andre. 

The  decretals  constitute  the  second  division  of  the 
Corpus,  Juris  Canonici. 

DECRETUM  GRATIANI.  A  collection  of 
ecclesiastical  law  made  by  Gratian,  a  Bo- 
lognese  monk,  in  1139-1152.  It  is  the  oldest 
of  the  collections  constituting  the  Corpus  Ju- 
ris Canonici.  1  Kaufm.  Mackeld.  Civ.  Law 
SI ;   1  Bla.  Com.  82 ;   Butler,  Hor.  Jur.  113. 

D  ECU  RIO.  In  Roman  Law.  One  of  the 
chief  men  or  senators  in  the  provincial  towns. 
The  decniriones.  taken  together,  had  the  en- 
tire management  of  the  internal  affairs  of 
their  towns  or  cities,  with  powers  resembling 
in  some  degree  those  of  our  modern  city 
councils.  1  Spence,  Eq.  Jur.  54;  Calvinus, 
Lex. 

DEDBANA.  An  actual  homicide  or  man- 
slaughter.    Toml. 

DEDI  (Lat.  I  have  given).  A  word  used 
in  deeds  and  other  instruments  of  convey- 
ance when  such  instruments  were  made  in 
Latin. 

The  use  of  this  word  formerly  carried  with 
it  a  warranty  in  law,  when  in  a  deed;  for 
example,  if  in  a  deed  it  was  said,  "dedi  (I 
have  given),  etc.,  to  A  B,"  there  was  a  war- 
ranty to  him  and  his  heirs.  But  this  is  no 
longer  so.    8  &  9  Vict.  c.  106,  s.  4.     Brooke, 


DEDI 


807 


DEDICATION 


Abr.  Guaranty,  pi.  85.  The  warranty  thus 
wrought  was  a  special  warranty,  extending 
to  the  heirs  of  the  feoffee  during  the  life  of 
the  dunor  only.  Co.  Litt  3S4  6;  4  Co.  81; 
5  id.  17;  3  Washb.  It.  P.  071.  Drdi  is  said  to 
be  the  aptest  word  to  denote  a  feoffment;  2 
Bla.  Com.  310.  The  future,  dabo,  Is  found  in 
some  of  the  Saxon  grants.  1  Spence,  Eq. 
Jur.  4-4.     See  (in ant. 

DEDI  ET  CONCESSI  (Lat.  I  have  given 
and  granted).  The  aptest  words  to  work  a 
feoffment.  They  are  the  words  ordinarily 
used,  when  instruments  of  conveyance  were 
in  Latin,  in  charters  "f  feoffment,  gift,  or 
grant.  These  words  were  held  the  aptest; 
though  others  would  answer;  Co.  Litt.  :M  b; 
1  Steph.  Com.  114 ;  2  Bla.  Com.  53,  316.  See 
Covenant. 

DEDICATION.  An  appropriation  of  land 
to  some  public  use,  made  by  the  owner,  and 
accepted  for  such  use  by  or  on  behalf  of  the 
public.  Barteau  v.  West,  23  Wis.  416;  Trus- 
tees of  M.  E.  Church  of  Hoboken  v.  City  of 
Hoboken,  33  N.  J.  L,  13,  97  Am.  Dee.  696; 
Smith  v.  City  of  San  Luis  Obispo,  95  Cal. 
4<;::.  30  Pac.  591 ;    Brown  v.  Gunu,  75  Ga.  111. 

The  intentional  appropriation  of  land  by 
the  owner  to  some  proper  public  use,  reserv- 
ing to  himself  no  rights  therein  inconsistent 
with  the  full  exercise  and  enjoyment  of  such 
use.  Northport  Wesleyan  Grove  Camp  .Meet- 
ing Ass'n  v.  Andrews,  104  Me.  342,  71  Atl. 
1027,  20  L.  R.  A.  (N.  S.)  976. 

It  was  unknown  to  the  civil  law;  New  Or- 
leans v.  U.  S.,  10  Pet.  (U.  S.)  662,  9  L.  Ed. 
573 ;  and  is  said  to  have  been  the  only  meth- 
od of  conferring  certain  rights  on  the  public 
at  common  law;  Post  v.  Pearsall,  212  Wend. 
(N.  T.)  425 ;    Stevens  v.  Nashua,  46  N.  H.  192. 

It  need  not  be  by  deed  or  in  writing,  but 
may  be  by  act  in  pais,  and  the  fee  need  not 
pass,  since  it  has  reference  to  possession  and 
not  to  ownership;  Benn  v.  Hatcher,  81  Va. 
25,  59  Am.  Rep.  645.  See  cases  collected  in 
9  L.  R.  A.  551,  note. 

Express  dedication  is  that  made  by  deed, 
vote,  or  declaration. 

Implied  dedication  is  that  presumed  from 
an  acquiescence  in  the  public  use,  or  from 
some  act  of  the  owner  which  operates  against 
him  by  way  of  estoppel  in  pais;  Wood  v.  See- 
ly,  32  N.  Y.  116 ;  Brown  v.  Manning,  6  Ohio, 
29S,  27  Am.  Dec.  255. 

To  he  valid  it  must  be  made  by  the  owner 
of  the  fee ;  5  B.  &  Aid.  454 ;  Ward  v.  Davis, 
3  Sandf.  (N.  Y.)  502;  4  Camph.  10;  Forney 
v.  Calhoun  County,  84  Ala.  1215,  4  South.  153; 
or,  if  the  fee  be  subject  to  a  naked  trust,  by 
the  equitable  owner;  Cincinnati  v.  White,  0 
Pet.  (U.  S.)  431,  8  L.  Ed.  452;  Williams  v. 
Society,  1  Ohio  St.  ITS;  and  to  the  public  at 
large;  Post  V.  Pearsall,  1212  Wend.  i\.  I.) 
425;  State  v.  Wilkinson,  2  Yt.  480,  21  Am. 
Dec.  560;  New  Orleans  v.  U.  S.,  10  Pet.  (U. 
S.)  662,  9  L.  Ed.  573;  Doe  v.  Jones,  11  Ala. 
63.    The  existence  of  a  corporation  as  gran- 


tee is  not  required,  as  the  public  is  an  ever- 
existing  grantee  capable  of  taking  for  public 
use;    Cincinnati  v.  White,  «;  r 
8  L.  Ed.  4512;    Trustees  of  M.  i:.  Church  of 

.1.  L.  13, 
D7  Am.   Dec.  696;    Rutherford  r,  38 

Mo.  317;    Town  of  Warren  v.  Town  of  Jack- 
sonville, 15  111.   _ 

In  making  the  appropriation,  Icular 

formality  is  required,  but  any  act  01 
tion,   whether  written  or  oral,   which  cl 
expresses  an  intent  to  dedicate,- will  ai 
to  a  dedication,  if  accepted  by   the  public, 
and  will  conclude  the  donor  from  ever  after 
asserting'  any    right   Incompatible   with   the 
public  use;   Washb.  Easem.  133;   11  M.  &  W. 
827;    Cincinnati  v.  White,  6  Pet.   (J.   8.)  431, 
8  I..  Ed.  452;    Post  v.  Pearsall,  22  Wend.  (N. 
V.i    150;    Bobbs  v.  Lowell,  19  Pick.   I  M 
105,  ::i   Am.  Dec.  145;    State  v.  Wilkinson,  2 
Yt.  480,  121  Am.  Dec  560;    Ti 
v.  Fox,  u  B.  Mom-.  (Ky.)  201  :    Mayor  &  Coun- 
cil of  Macon  v.   Franklin,   12   Ga.   239;     Mis- 
souri   Institute    for    Education    of    Blind    v. 
How,  27  Mo.  1211  ;    Oswald  v.  ( in-net.  22  Tex. 
01;     Smith    v.    City   of   San    Luis   Obispo,   95 
Cal.  463,  ::'»  Pac.  591;    Dobson  v.  Hohenadel, 
1  18  Pa.  367,  I':;  Atl.  Ill's;    Taylor  v.  Philippi, 
35  W.  Va.  554,  14  S.  F.  150;    Land  v.  Smith. 
44  La.  Ann.  931,  11  South.  ."7  ;    Western  By. 
of  Alabama  v.  P.  Co.,  96  Ala.  12712.  11  South. 
483,  17  L.  R.  A.  474;    Wolfe  v.  Town  of  Sul- 
livan, i:;:;  End.  331,  32  N.  E.   PUT;    the  vital 
principle  of  the  dedication  being  the  intention 
(animus  dedicandi),  which  must  he  unequivo- 
cally manifested,  and  clearly  and  satisfacto- 
rily appear;    Harding  v.  Jasper,  14  Cal.  642; 
Village  of  White  Bear  v.  Stewart,  40  Minn. 
284,    11   X.  W.  1045;    Baker  v.  Vanderburg, 
00  Mo.  378,  12  s.  w.  462;   Shellhouse  v.  state, 
110  Ind.  509,  11  N.  E.  4S4 ;    Waugh  v.  Leech, 
2S  111.  401;    Lee  v.   LaEe,    14   Mich.    12,  ;«' 
Am.    Dec.    220:     Forney    v.    Calhoun    Coun- 
ty, 84  Ala.  215,  4  South.  153;    Hope  v.  Bar- 
nett.  78  Cal.  0.  20  Pac.  245;    State  v.  Adkins, 
42  Kan.  203,  21  Pac.  1000.     Put   it  must  be 
determined    from    the   acts    and    explanatory 
declarations  of  the  party  in  connection  with 
the   surrounding  circumstances;    he  cannot 
subsequently    testify    as    to    what    were    his 
real  Intentions;    Fossion  v.  Landry,  12:1  Ind. 
136,  21  x.  r:.  :"'>:   Lamar  Count;  v.  Clements, 
19  Tex.  347.     If  there  he  doubt  as  to  wl 
there  was  a  dedication  to  public  use,  or  only 
for  a  temporary  purpose,  the  intention  of  the 
owner    may    he    proved;      Lamar    County    v. 
Clements,  40  Tex.  ::i7. 

A  mere  acquiescence  by  the  owner  of  land 
in  its  occasional  and  varying  use  for  travel 
by  the  public  is  Insufficient  to  establish  a  ded- 
ication thereof,  as  a  street  by  adverse  user; 
v.  P.  Co.,  135  Pa.  256,  10  Atl.  1051. 
And,  without  any  express  appropriation  by 
the  owner,  a  dedication  may  be  presumed 
from  twenty  year-'  use  of  his  land  by  the 
public,  with  his  knowledge;    lloole  v.  Atty. 


DEDICATION 


808 


DEDICATION 


Gen.,  22  Ala.  190 ;    Noyes  v.  Ward,  19  Conn. 
250;   Lamed  v.  Larned,  11  Mete.  (Mass.)  421; 
Smith  v.   State,  23  N.  J.  L.  130;    Green  v. 
Oakes,  17  111.  249 ;  "Com.  v.  Cole,  26  Pa.  187 ; 
or  from  any  shorter  period,  if  the  use  be 
accompanied  by  circumstances  which  favor 
the  presumption,  the  fact  of  dedication  being 
a  conclusion  to  be  drawn,  in  each  particular 
case,  by  the  jury,  who  as  against  the  owner 
have  simply  to   determine  whether  by  per- 
mitting the  public  use  he  has  intended  a  dedi- 
cation ;    5  Taunt.  125 ;    Denning  v.  Roonte,  6 
Wend.  (N.  Y.)  651 ;    Irwin  v.  Dixion,  9  How. 
(U.   S.)  10,  13  L.  Ed.  25;    State  v.   Hill,  10 
Ind.  219;    Whittaker  v.  Ferguson,  16  Utah, 
240,  51  Pac.  9S0;    Dimon  v.  People,  17  111. 
416 ;    4  El.  &  Bl.  737.     Public  use  of  a  right 
of  way  over  public  land  for  seven  years  is 
sufficient  under  U.  S.  R.  S.  §  2477;    O'Kano- 
gan  County  v.  Cheetham,  37  Wash.  682,  80 
Pac.  262,   70  L.  R.   A.   1027.     But  this  pre- 
sumption, being  merely  an  inference  from  the 
public  use,  coupled  with  circumstances  indic- 
ative of  the  owner's  intent  to   dedicate,  is 
open  to  rebuttal  by  the  proof  of  circumstanc- 
es indicative  of  the  absence  of  such  an  in- 
tent;   Bowers  v.  Mfg.  Co.,  4  Cush.   (Mass.) 
332;    State  v.  Inhabitants  of  Strong,  25  Me. 
297;    Irwin  v.  Dixion,  9  How.  (U.  S.)  10,  13 
L.  Ed.  25 ;    7  C.  &  P.  578 ;   City  of  St.  Louis 
v.  Wetzel,  110  Mo.  260,  19  S.  W.  534 ;   McKey 
v.  Hyde  Park,  134  U.  S.  84,  10  Sup.  Ct.  512, 
33  L.  Ed*.  800.     Mere  non-user  for  less  than 
the   statutory  period  is   not^  enough   unless 
coupled  with  evidence  of  >  intention ;    Wood 
v.  Hurd,  34  N.  J.  L.  91 ;   Hoole  v.  Atty.  Gen., 
22  Ala.  190 ;    3  Bing.  447. 

The  statute  of  frauds  does  not  apply  to  the 
dedication  of  lands  to  the  public;  Godfrey 
v.  City  of  Alton,  12  111.  29,  52  Am.  Dec.  476 ; 
Rees  v.  Chicago,  38  111.  338;  Harding  v.  Jas- 
per, 14  Cal.  642. 

Before  acceptance,  a  dedication  may  be 
revoked ;  Bridges  v.  Wyckoff,  67  N.  Y.  130 ; 
San  Francisco  v.  Canavan,  42  Cal.  541;  but 
only  when  no  rights  of  other,  persons  inter- 
vene. The  death  of  the  owner  is  a  revocation 
of  a  proffered  dedication  of  streets,  and  an 
acceptance  thereafter  by  the  village  gives  it 
no  right  in  the  streets;  People  v.  Kellogg, 
67  Hun  546,  22  N.  Y.  Supp.  490.  Where 
one  who  has  offered  to  dedicate  land  for  a 
public  street,  conveys  such  land  before  his 
offer  is  accepted,  the  conveyance  operates  as 
a  revocation  of  the  offer;  Chicago  v.  Drexel, 
141  111.  89,  30  N.  E.  774;  Schmitt  v.  San 
Francisco,  100-  Cal.  302,  34  Pac.  961. 

There  must  be  acceptance  of  either  a  com- 
mon-law or  a  statutory  dedication,  either  of 
which  is  incomplete  without  it;  Schmitz  v. 
Village  of  Germantown,  31  111.  App.  284;  Vil- 
lage of  Grandville  v.  Jenison,  84  Mich.  54,  47 
N.  W.  600.  The  American  courts  differ  to 
some  extent  as  to  whether  an  acceptance 
must  be  more  or  less  formal,  by  some  com- 
petent authority,  or  may  be  shown  by  gen- 


eral public  use   or  indirect  official  recogni- 
tion or  both.    The  underlying  principles  are 
discussed  in  the  leading  case  of  Cincinnati 
v.  White's  Lessee,  which  held  that  no  par- 
ticular form  or  ceremony  of  acceptance  is  es- 
sential, but  that  "all  that  is  required  is  the 
assent  of  the  owner  of  the  land,  and  the  fact 
of  its  being  used  for  the  public  purposes  in- 
tended by  the  appropriation";    Cincinnati  v. 
White,  6  Pet.  (U.  S.)  431,  8  L.  Ed.  452 ;    Da- 
vid's Heirs  v.  New  Orleans,  16  La.  Ann.  404, 
79  Am.  Dec.  5S6 ;   Cole  v.  Sprowl,  35  Me.  161, 
56  Am.  Dec.  696;  but  the  acts  which  amount 
to  it  must  be  plain  and  unequivocal ;   Baker 
v.  Johnston,  21  Mich.  349.     It  need  not  be 
by  the  town  or  other  municipal  corporation, 
nor  need  it  be  very  specific,  but  acts  by  the 
public  at  large  are  sufficient;    Attorney  Gen- 
eral v.  Abbott,  154  Mass.  323,  28  N.  E.  346,  13 
L.  R.  A.  251;    as  the  construction  of  sewers 
through  land  dedicated  for  a  street,  and  filing 
liens  against  abutting  owners;    Philadelphia 
v.  Thomas'  Heirs,  152  Pa.  494,  25  Atl.  873; 
or  general  ordinance  or  resolution  accepting 
all  streets  and  parks  dedicated,  where  land 
is  marked  as  such  on  a  recorded  plat;    Los 
Angeles  v.  McCollum,  156  Cal.  148,  103  Pac. 
914;   or  sold  under  the  description  of  bound- 
ing on  a  certain  street;    City  of  Eureka  v. 
Armstrong,  83  Cal.  623,  22  Pac.  928,  23  Pac. 
10S5 ;    but  the  use  of  a  street  by  the  public, 
to   constitute  acceptance,   must  be  under   a 
claim  of  right;    City  of  Eureka  v.  Croghan, 
81  Cal.  524,  22  Pac.  693. 

Acceptance  is  presumed  if  beneficial,  and 
this  is  shown  by  user;  Abbott  v.  Cottage 
City,  143  Mass.  521,  10  N.  E.  325,  58  Am.  Rep. 
143;  Guthrie  v.  New  Haven,  31  Conn.  308; 
San  Francisco  v.  Canavan,  42  Cal.  541 ;  Boyce 
v.  Kalbaugh,  47  Md.  334,  28  Am.  Rep.  464; 
Summers  v.  State,  51  Ind.  201.  The  dedica- 
tion of  a  private  way  to  the  public  without 
acceptance  does  not  constitute  a  public  way ; 
Slater  v.  Gunn,  170  Mass.  509,  49  N.  E.  1017, 
41  L,  R.  A.  26S ;  Rozell  v.  Andrews,  103  N.  Y. 
150,  8  N.  E.  513 ;  Bell  v.  City  of  Burlington, 
68  la.  296,  27  N.  W.  245;  St.  Louis  v.  Uni- 
versity, 88  Mo.  155;  Hayward  v.  Manzer,  70 
Cal.  476,  13  Pac.  141. 

There  is  no  established  standard  as  to 
what  use  by  the  public  will  be  sufficient  to 
constitute  an  acceptance  of  a  dedication; 
it  is  such  use  as  would  naturally  follow  from 
the  character  of  the  place;  Winslow  v.  Cin- 
cinnati, 9  Ohio  S.  &  C.  P.  Dec.  89;  the  use 
need  only  be  such  as  the  public  needs  de- 
mand; Taraldson  v.  Town  of  Lime  Springs, 
92  la.  187,  60  N.  W.  658.  Use  by  a  compara- 
tively small  number  of  persons  on  foot  dur- 
ing the  summer  season  of  a  short  way  from 
a  street  to  the  seashore,  being  the  kind  of 
use  intended  by  the  dedicator,  is  sufficient; 
Phillips  v.  City  of  Stamford,  81  Conn.  408,  71 
Atl.  361,  22  L.  R.  A.  (N.  S.)  1114 ;  otherwise 
of  an  alley  through  private  land,  used  in 
bringing  in  household  supplies  and  removing 


DEDICATION 


809 


DEDICATION' 


refuse;  Brinck  v.  Collier,  56  Mo.  1G0 ;  of 
a  wood  so  grown  up  with  brush  as  to  be  im- 
passable by  wagons  and  but  little  used ;  Ros- 
enberger  v.  Miller,  Gl  Mo.  App.  422;  of  a 
road  to  some  extent  for  two  or  three  weeks; 
Laughlin  v.  City  of  Washington,  63  la.  652, 
19  N.  W.  819;  a  use  by  a  few  persons  only 
and  merely  for  local  purposes ;  Green  v. 
Town  of  Canaan,  29  Conn.  157;  and  a  per- 
mitted use  by  neighbors  for  hauling  wagons; 
Fairchild  v.  Stewart,  117  la.  734,  89  X.  W. 
1075.  Long  continued  use  by  a  few  persons 
does  not  necessarily  show  an  intention  on 
the  part  of  the  public  authorities  to  accepl 
the  dedication;  City  of  Rock  Island  v.  Star- 
key,  189  111.  515,  59  N.  B.  071.  See  Phillips 
v.  City  of  Stamford,  81  Conn.  40S,  71  Atl. 
361,  22  L.  R.  A.  (N.  S.)  1114. 

In  the  case  of  a  highway,  the  question  has 
been  raised  whether  the  public  itself,  as  the 
body  charged  with  the  repair,  is  the  proper 
party  to  make  the  acceptance.  In  England, 
it  has  been  decided  that  an  acceptance  by 
the  public,  evidenced  by  mere  use,  is  suffi- 
cient to  bind  the  parish  to  repair,  without 
any  adoption  on  its  part ;  5  B.  &  Ad.  469 ; 
2  N.  &  M.  583.  In  this  country  there  are 
cases  in  which  the  English  rule  seems  to  be 
recognized;  Remington  v.  Millerd,  1  R.  I.  93; 
though  the  weight  of  decision  is  to  effect 
that  the  towns  are  not  liable,  either  for  re- 
pair or  for  injuries  occasioned  by  the  want 
of  repair,  until  they  have  themselves  adopted 
the  way  thus  created,  either  by  a  formal  ac- 
ceptance or  by  indirectly  recognizing  it,  as 
by  repairing  it  or  setting  up  guide-posts 
therein ;  Thomp.  Highw.  52 ;  Page  v.  Town 
of  Weathersfield,  13  Vt.  424 ;  Com.  v.  Kelly; 
8  Gratt.  (Va.)  632;  Common  Council  of  In- 
dianapolis .v.  McClure,  2  Ind.  147 ;  Wright 
v.  Tukey,  3  Cush.  (Mass.)  290;  Colbert  v. 
Shepherd,  89  Va.  401,  16  S.  E.  246;  Philadel- 
phia v.  Thomas'  Heirs,  152  Pa.  494,  25  Atl. 
873;  Gage  v.  R.  Co.,  84  Ala.  224,  4  South. 
415;  City  of  Galveston  v.  Williams,  69  Tex. 
449,  6  S.  W.  860 ;  Rozell  v.  Andrews,  103  N. 
Y.  150,  8  N.  E.  513 ;  Bell  v.  City  of  Burling- 
ton, 68  la.  296,  27  N.  W.  245;  City  of  St. 
Louis  v.  University,  8S  Mo.  155;  Hayward 
v.  Manzer,  70  Cal.  476,  13  Pac.  141.  It  has 
been  held  that  the  acceptance,  improvement, 
and  user  by  a  city  of  a  street  or  a  portion  of 
a  street  as  platted  is  equivalent  to  an  accept- 
ance of  the  whole  tract  platted;  Heitz  v. 
City  of  St.  Louis,  110  Mo.  618,  19  S.  W.  7.:.",. 

The  authorities  on  this  subject  relate  large- 
ly to  the  dedication  of  land  for  a  highway. 
Such  was  the  subject  matter  in  the  English 
cases  on  which  the  doctrine  rests;  Dovaston 
v.  Payne,  2  H.  Bl.  527,  2  Sm.  L.  Cas.  13S8; 
11  East  376,  where  eight  years  user  was  held 
to  show  sufficient  acceptance ;  and  2  Str.  909. 
where  four  years  was  held  insufficient;  while 
in  a  much  litigated  case  six  years  sufficed; 
18  Q.  B.  870.  The  English  cases  have  not 
shown  a  disposition  to  extend  the  principle 


of  dedication  except  so  far  as  to  recognize 
it  in  the  case  of  charitable  uses  (7.  v.)  under 
43  Eliz.  c.  4,  or  the  general  eiuity  jurisdic- 
tion. There  are  cases  of  bridges;  14  East 
317;   1  Man.  &  Gr.  i  &  B.  526;  and 

one  over  a  ditch  ;  2  Str.  1004 ;  and  a  wharf 
or  landing;  5  B.  &  Aid.  268;  but  all  these 
are  closely  allied  to  roads  or  ways. 

But  in  this  country  there  has  grown  up 
what  is  often  referred  to  as  the  American 
doctrine,  greatly  extending  the  scope  and  op- 
eration of  the  doctrine  of  dedication  under 
which  it  La  applied  equally  well  to  any  other 
purpose  which  is  for  the  benefit  of  the  pub- 
lic at  large,  as  for  a  square,  a  common,  a 
landing,  a  cemetery,  a  school,  or  a  monument; 
and  the  principles  which  govern  in  all 
cases  are  the  same,  though  they  may  be 
somewhat  diversified  in  the  application,  ac- 
cording as  they  are  invoked  for  one  or  anoth- 
er of  these  objects ;  Hunter  v.  Trustees  of 
Sandy  Hill,  G  Hill  (X.  Y.)  407;  Klinkener  v. 
School  Directors  of  McKeesport,  11  Pa.  Ill; 
Huher  v.  Gazley,  IS  Ohio  18;  Langley  v. 
Town  of  Gallipolis,  2  Ohio  St.  107;  Mayor, 
etc.,  of  the  City  of  Macon  v.  Franklin,  12 
Ga.  239;  Olcott  v.  BanfilL  4  X.  II.  537;  Den 
v.  Drummer,  20  N.  J.  L.  86,  40  Am.  Dec.  213; 
Rowan's  Ex'rs  v.  Town  of  Portland,  8  B. 
Monr.  (Ky.)  234;  Ward  v.  Davis.  :;  Sandf 
(X.  Y.)  502;  Doe  v.  Town  of  Attica,  7  Ind 
641;  Gardiner  v.  Tisdale,  2  Wis.  153,  GO  Am 
Dec.  407;  Archer  v.  Salinas  City,  9.3  CaL 
43,  28  Pac.  839,  16  L.  R.  A.  14.1;  Attorney 
General  v.  Abbott,  154  Mas^.  323,  28  X.  E. 
346,  13  L.  R.  A.  251;  Board  of  Com'rs  of 
Miami  County  v.  Wilgus,  4-  Kan.  457,  22 
Pac.  615;  Carpenteria  School  District  v. 
Heath,  56  Cal.  478;  Beatty  v.  Kurt/.,  li  Pet. 
(U.  S.)  566,  7  L.  Ed.  521;  State  v.  Wilkinson, 
2  Vt.  480,  21  Am.  Dec.  560;  Redwood 
etery  Ass'n  v.  Bandy,  93  Ind.  24G ;  Tillage 
of  Mankato  v.  Willard,  13  Minn.  13  (Gil.  1'. 
97  Am.  Dec.  20S. 

As  to  cases  upon  which  rests  the  extension 
of  the  doctrine  to  large  parks  and  cemeteries, 
see  note  in  16  Ilarv.  L.  Rev.  128. 

It  is  usually  said  that  land  dedicated  for 
one  purpose  cannot  be  used  for  another;  so 
land  dedicated  for  a  public  square  cannot  be 
used  for  the  erection  of  a  city  hall ;  Church 
v.  City  of  Portland.  IS  Or.  73,  22  Pac.  52S,  G 
L.  R.  A.  (  N.  S.  1   259  and  note. 

Equity  will  enjoin  the  diversion  of  land 
from  the  purpose  to  which  it  was  dedicated  ! 
Le  Clercq  v.  Trustees  of  Town  of  Gallipolis. 
7  Ohio,  217,  pt.  1.  28  Am.  Dec.  641;  and  the 
legislature  cannot  divert  it  to  a  different 
use;  id.;  but  land  dedicated  for  a  specific 
public  use  may  be  used  for  other  purposes 
reasonably  in  accord  therewith,  as  modiOed 
by  changed  conditions  and  circumstances; 
Codman  v.  Crocker.  203  Mass.  146,  89  X.  E. 
177,  25  L.  R.  A.  (X.  S.)  960,  where  an  act 
authorizing  a  subway  under  a  part  of  Bos- 
ton Common  was  held  not  a  diversion  of  the 


DEDICATION 


810 


DEDICATION 


property  from  the  purpose  of  its  dedication 
"for  the  common  use  of  the  inhabitants  of 
Boston  as  a  training  field  and  cow  pasture." 

A  promise  to  donate  land  for  public  pur- 
poses has  been  enforced,  as  where  the  prom- 
isee has  made  improvements;  L.  R.  4  Ch.  D. 
73;  Freeman  v.  Freeman,  43  N.  Y.  34,  3 
Am.  Rep.  657;  Neale  v.  Neale,  9  Wall.  (U. 
S.)  1,  19  L.  Ed.  590 ;  or  where  a  school  house 
was  erected  on  the  faith  of  the  promise; 
Greenwood  v.  School  Dist.  No.  4,  126  Mich. 
81,  85  N.  W.  241.  As  the  inchoate  right  of 
dower  is  defeated  by  condemnation  of  lands 
to  public  use ;  see  Eminent  Domain  ;  it  seems 
to  be  held  tbat  dower  is  barred  by  the  dedi- 
cation of  land  to  such  use;  Venable  v.  R. 
Co.,  112  Mo.  103,  20  S.  W.  493,  18  L.  R.  A. 
68 ;  French  v.  Lord,  69  Me.  537 ;  Gwynne  v. 
Cincinnati,  3  Ohio  24,  17  Am.  Dec.  576 ;  see 
18  L.  R.  A.  79,  note. 

The  doctrine  of  dedication  has  been  characterized 
as  an  anomaly  in  our  law,  due  to  the  public  policy 
of  effectuating  individual  action  for  public  benefit ; 
21  Harv.  L.  Rev.  356.  And  again,  it  is  said  that, 
so  far  from  being  hampered  in  its  application  by 
mere  technical  distinctions,  the  doctrine  was  called 
into  existence  for  the  very  purpose  of  escaping 
from  technical  rules  and  limitations.  Its  very  vital 
breath  and  its  justification  for  existence  lie  in  the 
disregard  of  existing  technical  limitations  and  in 
recognition  of  the  necessity  for  a  resort  to  broad 
views.  Consequently,  as  fast  as  any  new  subject 
or  phase  of  public  rights  has  been  presented  to  the 
courts,  they  have  never  hesitated  to  apply  the  doc- 
trine to  the  new  situation ;  16  Harv.  L.  Rev.  338, 
where  it  is  urged  that  it  should  be  extended  to 
rights  not  merely  of  using  another's  real  estate,  but 
of  stripping  it  (or  having  it  stripped)  by  or  for  the 
use  of  the  general  public  of  portions  of  the  soil— as 
of  coal  or  oil  ;  and  it  is  suggested  that  on  compli- 
ance with  certain  conditions,  viz.:  1.  Of  leaving  the 
private  owners  in  possession  and  management  (as 
in  the  case  of  a  public  easement  acquired  by  dedica- 
tion over  a  private  wharf),  and,  2.  Of  paying  for 
the  coal  or  oil  as  taken,  such  a  dedication  might 
be  required  by  legislation. 

A  common  method  of  dedicating  land  for 
public  purposes,  particularly  in  connection 
with  laying  out  towns,  is  by  recording  plats 
on  which  are  marked  streets,  public  squares 
and  the  like,  and  this  is  held  either  by  stat- 
ute or,  wbere  there  is  none,  at  common  law, 
to  be  a  sufficient  dedication  to  the  public; 
City  of  Madison  v.  Mayers,  97  Wis.  399,  73 
N.  W.  43.  40  L.  R.  A.  635,  65  Am.  St.  Rep. 
127;  London  &  S.  F.  Bank  v.  City  of  Oak- 
land, 90  Fed.  691,  33  C.  C.  A.  237;  and 
such  dedication  upon  a  plat  acknowledged 
and  recorded  of  land  for  county  buildings 
has  been  held  to  vest  the  fee  in  the  county, 
although  the  town  failed  to  become  the  coun- 
ty seat;  Brown  v.  Manning,  6  Ohio,  298,  27 
Am.  Dec.  255.  So  the  sale  of  land  by  plat 
designating  streets  and  public  squares  op- 
erates as  a  dedication ;  Price  v.  Stratton,  45 
Fla.  535,  33  South.  644;  Florida  E.  C.  R. 
Co.  v.  Worley,  49  Fla.  297,  38  South.  CIS; 
Corning  &  Co.  v.  Woolner,  206  111.  190,  69  N. 
E.  53;  Marsh  v.  Village  of  Fairbury,  163 
111.  401,  45  N.  E.  236;  Van  Duyne  v.  Mfg. 
Co.,  71  N.  J.  Eq.  375,  64  Atl.  149 ;  Weisbrod  v. 
R.  Co.,  18  Wis.  35,  86  Am.  Dec.  743;    Com. 


v.  Beaver  Borough,  171  Pa.  542,  33  Atl.  112 ; 
Baltimore  v.  Frick,  82  Md.  77,  33  Atl.  435; 
Meier  v.  R.  Co.,  16  Or.  500,  19  Pac.  610,  1  L. 
R.  A.  856.  And  see  9  L.  R.  A.  551,  note.  But 
that  it  may  so  operate  at  common  law  there 
must  be  an  acceptance  by  the  public  in  a 
reasonable  time;  Village  of  Grandville  y. 
Jenison,  84  Mich.  54,  47  N.  W.  600. 

To  constitute  a  common-law  dedication  by 
plat  requires  the  same  certainty  of  descrip- 
tion (or  accuracy  of  indication  on  the  plat) 
as  in  other  forms  of  conveyance;  Sanders  v. 
Village  of  Riverside,  118  Fed.  720,  55  C.  C. 
A.  240,  where  it  is  said  that  "a  dedication  is 
a  mode  of  conveyance."  When  a  plat  has 
been  altered  before  filing  so  as  apparently  to 
cut  off  one  half  of  the  street  shown  on  it  as 
originally  drawn,  it  operates  as  a  dedication 
of  what  remains  only;  Elliot  v.  Atlantic 
City,  149  Fed.  849. 

An  offer  to  dedicate,  followed  by  public 
user  under  a  claim  of  right,  is  a  sufficient 
dedication  and  acceptance ;  Delaware,  L.  & 
W.  R.  Co.  v.  City  of  Syracuse,  157  Fed.  700 ; 
Cook  v.  Harris,  61  N.  Y.  448;  Kennedy  v. 
Le  Van,  23  Minn.  513;  Buchanan  v.  Curtis, 
25  Wis.  99.  3  Am.  Rep.  23 ;  Price  v.  Town 
of  Breckenridge,  92  Mo.  378,  5  S.  W.  20 ;  and 
where  the  intention  is  clear  a  dedication  was 
held  complete  without  acceptance  or  user ; 
Point  Pleasant  Land  Co.  v.  Cranmer,  40 
N.  J.  Eq.  81. 

The  mere  making  of  a  survey  or  a  map 
of  a  plat,  which  is  not  recorded  or  exhibited 
to  the  public  and  upon  which  no  lots  are 
sold,  is  not  a  dedication  of  the  streets  there- 
on; Kruger  v.  Constable,  128  Fed.  908,  63 
C.  C.  A.  634;  and  filing  maps  on  which  a 
street  was  laid  out  did  not  make  such  a 
street  a  public  highway  so  far  as  the  public 
was  concerned;  Loughman  v.  R.  Co.,  S3  App. 
Div.  629,  81  N.  Y.  Supp.  1097.  But  filing  the 
plat  in  a  public  repository  or  publishing  it 
and  selling  lots  by  reference  to  it  is  a  dedi- 
cation;  Kruger  v.  Constable,  116  Fed.  722; 
and  if  the  lots  are  sold  with  reference  to  a 
plat  showing  streets,  the  purchasers  are  en- 
titled to  have  them  remain  open,  whether  ac- 
cepted by  the  public  or  not;  Village  of  Au- 
gusta v.  Tyner,  197  111.  242,  64  N.  E.  378; 
Conrad  v.  Land  Co.,  126  N.  C.  776,  36  S.  E. 
282;  and  so  of  a  park;  Florida  E.  C.  R.  Co. 
v.  Worley,  49  Fla.  297,  38  South.  618.  Where 
lots  are  sold  bounded  on  an  unopened  street, 
the  public  has  a  right  to  the  street,  though 
there  was  no  acceptance  or  user  by  the  pub- 
lic; Harrington  v.  City  of  Manchester,  76 
N.  H.  347,  82  Atl.  716. 

The  sale  by  plat  is  a  dedication;  Cum- 
mings  v.  St.  Louis,  90  Mo.  259,  2  S.  W.  130 ; 
and  acceptance  is  presumed  from  purchases 
by  various  persons ;  Carter  v.  City  of  Port- 
land, 4  Or.  339;  and  the  plat  need  not  be 
acknowledged  or  recorded ;  Meier  v.  Ry.  Co., 
16  Or.  500,  19  Pac.  610,  1  L.  R.  A.  856.  After 
a  sale  by  plat  there  can  be  no  revocation; 


DEDICATION 


811 


DEDICATION 


Brown  v.  Stark,  83  Cal.  63G,  24  Pac.  162. 
The  dedication  by  plat  may  apply  either  to 
a  town  site  or  a  small  tract.  In  the  former 
the  purchasers  and  the  public  are  identical, 
but  in  the  latter  there  may  be  an  estoppel  in 
favor  of  purchasers  and  no  acceptance  by 
the  public;  9  Barv.  L.  Rev.  488 :  but  the 
private   rights  of  the  purcha  not   be 

enforced  by  the  municipality;  Village  of 
Augusta  v.  Tyner,  197  ill.  242,  84  N.  E.  378. 

With  respect  to  the  rule  that  the  purchaser 
of  lots  by  plat  is  entitled  to  have  streets 
kept  open  as  shown  on  a  plat,  a  question 
may  arise  whether  his  right  applies  only  to 
adjoining  streets  or  to  all  streets  on  the 
plat.  As  to  the  former  his  right  is  unques- 
tioned, and  many  cases  hold  it  to  be  dear  in 
the  latter  class;  Collins  v.  Land  Co.,  128 
N.  C.  563,  39  S.  B.  21,  83  Am.  St.  Rep.  720; 
Wolfe  v.  Town  of  Sullivan.  133  End.  331,  32 
N.  E.  1017;  Taylor  v.  Com.,  29  Gratt  (Va.) 
780;  In  re  Opening  of  Pearl  St.,  Ill  Pa. 
565,  5  Atl.  430;*  contra;  11  Out.  App.  416; 
Mahler  v.  Brunder,  !>2  Wis.  477,  66  N.  W.  502, 
31  L.  R.  A.  695;  Ilawley  v.  Baltimore.  33 
Md.  1270;  Pearson  v.  Allen,  151  Mass.  79,  23 
N.  E.  731,  21  Am.  St.  Rep.  426. 

The  mere  filing  of  a  map  purporting  to 
show  the  original  plan  of  a  town,  but  never 
authenticated  nor  proved  in  any  manner  to 
be  such,  is  not  sufficient  evidence  of  dedica- 
tion :  Terrell  v.  Town  of  Bloomfield,  20  S. 
W.  2S9,  14  Ky.  L.  Rep.  577;  but  the  streets 
of  a  defective  plat  may  be  dedicated  to  the 
public  by  conveyances  made  of  lots  according 
to  the  plat;  Smith  v.  City  of  St.  Paul,  72 
Minn.  472,  75  N.  W.  70S. 

Whether  a  corporation  may  dedicate  land 
to  a  public  use  is  a  question  not  extensively 
discussed.  It  seems  to  be  permitted  when 
the  dedication  is  for  a  use  consistent  with 
the  object  for  which  the  charter  is  granted; 
Maywood  Co.  v.  Village  of  Maywood,  118  111. 
61,  6  N.  E.  860 ;  Mayor,  etc.,  of  Jersey  City 
v.  Banking  Co.,  12  N.  J.  Eq.  547;  but  not 
otherwise;  Stacy  v.  Hotel  '&  Springs  Co., 
223  111.  546,  79  N.  E.  133,  8  L.  R.  A.  (X.  S.) 
966,  and  note;  and  a  railroad  may,  by  dedi- 
cation, establish  a  street  or  road  across  its 
tracks ;  Northern  Fac.  R.  Co.  v.  City  of 
Spokane,  64  Fed.  506,  12  C.  C.  A.  246;  Green 
v.  Town  of  Canaan,  29  Conn.  157;  Southern 
Pac.  Co.  v.  City  of  Pomona,  141  Cal.  339,  77 
Pac.  929;  Central  R.  Co.  of  New  Jersey  v. 
City  of  Bayonne,  52  N.  J.  L.  503.  20  Atl.  CO. 
A  trustee  of  a  town  site  located  on  public 
land  (under  U.  S.  R.  S.  §  23S7)  has  no  right 
to  dedicate  land  for  a  street  as  against  the 
individual  occupants  for  whom  ho  takes  ti- 
tle; McCloskey  v.  Pacific  Coast  Co.,  100  Fed. 
794,  87  C.  C.  A.  568,  22  L.  R.  A.  (X.  S.)  67a 

Reservations,  conditions  and  restrictions 
are  in  some  cases  sustained,  the  courts  some- 
times going  to  great  lengths;  Hughes  v.  Bing- 
ham, 135  N.  Y.  347,  32  N.  E.  78,  17  L.  R,  A. 
454;  11  M.  &  W.  827;  Bayard  v.  Hargrove. 
45  Ga.  342 ;   City  of  Morrison  t.  Hinkson,  87 


111.  587,  29  Am.  Rep.  77;  Warren  v.  City  of 
Grand  Haven.  30  Mich.  24;  Rutherford  v. 
Taylor,  :;s   Mo.  •".!•'•;    but   the  g  ten- 

dency is  to  hold  the  cond 
of    M.    E.    Church   of    I! 
Ilol.el.cn.   ;::;    \.   J.    L.    13,   !<7    Am. 
.">  Q.   1'..  2d.     The  limitati 
to  defeat  the  dedication  by  Bhowing  an  ab- 

of    the    animus    dedicandi;     Wl. 
Bradley,  66  Me.  254  ;    so  the 
a  right  to  revoke  and  devote  the  land  t 

i  was  held  not  a  good  dedica; 
><i  San   Francisco  v.  Canavan,  42  Cal 
See  21    Harv.    L.    Rev.   356,    wheri 
restrictions  and  conditions  arc  discussed. 
See  Street;  Highway;  Park;  Bridge,  and 
In  27  Am.  I  •(  c.  r,:,'.i. 

DEDIMUS  ET  CONCESSIMUS  (Lat  we 
have  given  and   granted  i.     Words  used   by 

the  king,  or  when-  there  were  more  grantors 
than  one,  instead  of  >!<  <li  <-t  cona 

DEDIMUS  POTESTATEM  (Lat.  we  have 
given  power).  The  name  of  a  writ  to 
mission  private  persons  to  do  some  act  in 
the  place  of  a  judge:  as,  to  administer  an 
oath  of  office  to  a  justice  of  the  peace,  to  ex- 
amine witnesses,  and  the  like.  Co  well;  Com. 
Dig,  Chancery  (K,  3),  (P,  2),  Fine  (E,  7)  ; 
Dane,  Abr.  Index;   2  Bla.  Com.  351. 

DEDIMUS  POTESTATEM  DE  ATTORNO 
FACIENDO  (Lat.).  The  name  of  a  writ 
which  was  formerly  issued  by  authority  of 
the  crown  in  England  to  authorize  an  attor- 
ney to  appear  for  a  defendant,  without  which 
a  party  could  not,  until  the  statute  of  West- 
minster 2,  appear  in  court  by  attorney.  By 
that  statute,  13  Edw.  I.  C  10,  all  persons  Im- 
pleaded may  make  an  attorney  to  sue  for 
them,  in  all  pleas  moved  by  or  against  them, 
in  the  superior  courts  there  enumerated.  3 
M.  &  G.  1S4,  n. 

DEDITITII  (Lat.).  In  Roman  Law.  Crim- 
inals who  had  been  marked  in  the  face  or  on 
the  body  with  fire  or  an  iron  so  that  the 
mark  could  not  be  erased,  and  were  subse- 
quently manumitted.     Calvinus.    1 

DEDUCTION  FOR  NEW.  The  allowance 
(usually  one-third)  on  the  cost  of  repairing 
a  damage  to  the  ship  by  the  extraordinary 
operation  of  the  perils  of  navigation,  the 
renovated  pari  being  presumed  to  he  better 
than  before  the  damage,     in  some  part-,  by 

custom  or  by  express  provision  in  the  policy, 
the  allowance  is  not  made  on  a  ivew 
during  the  first  year,  or  on  a  new  sheathing. 
or  on  an  anchor  or  chain-cables;  1  I'hill.  Ins. 
£  50;  2  id.  S§  1369,  1 131 :  Gray  v.  Wain,  2  s. 
&  R,  (Pa.)  229,  7  Am.  Dec.  642;  risk  v.  ins. 
Co.,  18  La.  77:  Orrok  v.  Ins.  Co.,  21  Pick. 
(Ma^s.i  156,  ■  ■-  Am.  Dec  271;  IVpau  v.  Ins. 
Co.,  5  Cow.  (N.  Y.i  63,  15  Am.  Dec.  431. 

DEED.  A  written  instrument  under  seal, 
Containing    a    contract    or    agreement    which 

has  1 n  delivered  by  the  party  to  be  bound 

and  accepted   by  the  obligee  or  covenantee. 


DEED 


812 


DEED 


Co.  Litt.  171;  2  Bia.  Com.  295;  Shepp. 
Touchst.  50. 

A  writing  containing  a  contract  sealed  and 
delivered  to  the  party  thereto.  3  Washb.  R. 
P.  239. 

A  writing  under  seal  by  which  lands,  tene- 
ments, or  hereditaments  are  conveyed  for  an 
estate  not  less  than  a  freehold.  2  Bla.  Com. 
294. 

A  writing  or  instrument,  written  on  paper 
or  parchment,  sealed  and  delivered,  to  prove 
and  testify  the  agreement  of  the  parties 
whose  deed  it  is  to  the  things  contained  in 
the  deed.  American  Button-Hole  Overseam- 
ing  S.  M.  Co.  v.  Burlack,  35  W.  Va.  647,  14  S. 
E.  319.  See  Baker  v.  Westcott,  73  Tex.  129, 
11  S.  W.  157. 

Any  Instrument  In  writing  under  seal,  whether  it 
relates  to  the  conveyance  of  real  estate  or  to  any 
other  matter, — as,  for  instance,  a  bond,  single  bill, 
agreement,  or  contract  of  any  kind, — is  as  much  a 
deed  as  is  a  conveyance  of  real  estate,  and,  after 
delivery  and  acceptance,  is  obligatory ;  Taylor  v. 
Glaser,  2  S.  &  R.  (Pa.)  504 ;  Taylor  v.  Morton,  6 
Dana  (Ky.)  365  ;  Davis  v.  Brandon,  1  How.  (Miss.) 
154.  The  term  is,  however,  often  used  in  the  latter 
sense  above  given,  and  perhaps  oftener  than  in  its 
more   general    signification. 

Deeds  of  feoffment.    See  Feoffment. 

Deeds  of  grant.    See  Grant. 

Deeds  indented  are  those  to  which  there 
are  two  or  more  parties  who  enter  into  re- 
ciprocal and  corresponding  obligations  to 
each  other.     See  Indenture. 

Deeds  of  release  or  of  quitclaim.  See  Re- 
lease ;    Quitclaim. 

Deeds  poll  are  those  which  are  the  act  of 
a  single  party  and  which  do  not  require  a 
counterpart.     See  Deed  Poll. 

Deeds  under  the  statute  of  uses.  See  Bar- 
gain and  Sale;  Covenant  to  Stand  Seised; 
Lease  and  Release. 

According  to  Blackstone,  2  Com.  313,  deeds  may  be 
considered  as  conveyances  at  common  laio, — of  which 
the  original  are  feoffment ;  gift ;  grant ;  lease ; 
exchange;  partition:  the  derivative  are  release; 
confirmation  ;  surrender ;  assignment ;  defeasance, 
— or  conveyances  which  derive  their  force  by  virtue 
of  the  statute  of  uses:  namely,  covenant  to  stand 
seized  to  uses;  bargain  and  sale  of  lands;  lease 
and  release;  deed  to  lead  and  declare  uses;  deed  of 
revocation  of  uses. 

For  a  description  of  the  various  forms  in  use  in 
United  States,  see  2  Washb.  R.  P.  607. 

Requisites  of.  Deeds  must  be  upon  paper 
or  parchment;  Warren  v.  Lynch,  5  Johns. 
(N.  Y.)  246;  must  be  completely  written  be- 
fore delivery :  Perminter  v.  McDaniel,  1  Hill 
(S.  G)  267,  26  Am.  Dec.  179;  6  M.  &  W.  216, 
Am.  ed.  note;  3  Washb.  R.  P.  239;  but  see 
Cribben  v.  Deal,  21  Or.  211,  27  Pac.  1046,  28 
Am.  St  Rep.  746;  Blank;  and  filing  in 
grantee's  name  after  delivery  in  escrow  is 
sufficient;  Burk  v.  Johnson,  146  Fed.  209,  76 
C.  C.  A.  567 ;  they  may  be  partly  written 
and  partly  printed,  or  entirely  printed;  must 
be  between  competent  parties,  see  Parties  ; 
and  certain  classes  are  excluded  from  hold- 
ing lands,  and,  consequently,  from  being 
grantees  in  a  deed;  see  1  Washb.  R.  P.  73; 
2  id.  564;   must  have  been  made  without  re- 


straint;   Inhabitants  of  Worcester  v.  Eaton, 

13  Mass.  371,  7  Am.  Dec.  155;  2  Bla.  Com. 
291 ;  must  contain  the  names  of  the  grantor 
and  grantee;  Hoffman  v.  Porter,  2  Brock. 
156,  Fed.  Cas.  No.  6,577 ;  Morse  v.  Carpenter, 
19  Vt.  613;  Shaw  v.  Loud,  12  Mass.  447; 
Boone  v.  Moore,  14  Mo.  420 ;   Games  v.  Dunn, 

14  Pet.  (U.  S.)  322,  10  L.  Ed.  476;  Dunn  v. 
Games,  1  McLean  321,  Fed.  Cas.  No.  4,176; 
Elliot  v.  Sleeper,  2  N.  H.  525;  but  a  vari- 
ance in  the  names  set  forth  in  the  deed  will 
not  invalidate  it;  Jenkins  v.  Jenkins,  148 
Pa.  216,  23  Atl.  985;  must  relate  to  suitable 
property ;  Browne,  Stat.  Frauds  §  6 ;  3 
Washb.  R.  P.  331 ;  must  contain  the  requisite 
parts,  see  infra;  must  at  common  law  be 
sealed;  Sicard  v.  Davis,  6  Pet.  (U.  S.)  124, 
8  L.  Ed.  342 ;  Thornt.  Conv.  205 ;  see  Stanley 
v.  Green,  12  Cal.  166 ;  Munds  v.  Cassidey,  98 
N.  C.  558,  4  S.  E.  353,  355  (i.  e.  in  order  to 
constitute  it  a  deed,  though  an  unsealed  in- 
strument may  operate  as  a  conveyance  of 
land;  Mitchell,  R.  P.  453;  Barnes  v.  Mult- 
nomah County,  145  Fed.  695)  ;  and  should, 
for  safety,  be  signed,  even  where  statutes  do 
not  require  it ;  3  Washb.  R.  P.  239 ;  but  see 
Newton  v.  Emerson,  66  Tex.  142,  18  S.  W. 
348.  Previous  to  the  Statute  of  Frauds, 
signing  was  not  essential  to  a  deed,  provided 
it  was  sealed.  The  statute  makes  it  so ;  2 
Bla.  Com.  306;  contra,  Shep.  Touch,  n.  (24), 
Preston's  ed.,  which  latter  is  of  opinion  that 
the  statute  was  intended  to  affect  parol  con- 
tracts only,  and  not  deeds.  See  Wms.  R.  P. 
.152;  2  Q.  B.  580.  Sir  F.  Pollock  (Contracts 
171)  is  of  opinion  that  a  deed  does  not  re- 
quire a  signature,  citing  4  Ex.  631 ;  3  Bla. 
Com.  306.  Where  the  grantor  is  present  and 
authorizes  another,  either  expressly  or  im- 
pliedly, to  sign  his  name  to  a  deed,  it  then 
becomes  his  deed,  and  is  as  binding  upon 
him;  Gardner  v.  Gardner,  5  Cush.  (Mass.) 
483,  52  Am.  Dec.  740 ;  Kime  v.  Brooks,  31  N. 
C.  218;    Frost  v.  Deering,  21  Me.  158. 

They  must  be  delivered  (see  Delivery;  Es- 
crow ;  delivery  is  said  not  to  be  necessary 
in  the  case  of  a  body  corporate,  for  the  affix- 
ing of  the  common  seal  to  the  deed  is  tanta- 
mount to  delivery;  L.  R.  2  H.  L  296)  ;  and 
accepted;  Canning  v.  Pinkham,  1  N.  H.  353 ; 
Buffum  v.  Green,  5  N.  H.  71,  20  Am.  Dec. 
502;  Jackson  v.  Bodle,  20  Johns.  (N.  Y.) 
187 ;  13  Cent.  L.  J.  222 ;  Richardson  v.  Grays, 
85  la.  149,  52  N.  W.  10 ;  Schwab  v.  Rigby,  38 
Minn.  395,  38  N.  W.  101.  A  deed  may  be  de- 
livered by  doing  something  and  saying  noth- 
ing, or  by  saying  something  and  doing  noth- 
ing, or  it  may  be  by  both;  Flint  v.  Phipps, 
16  Or.  437,  19  Pac.  543.  Deeds  conveying  real 
estate  must  by  statute  in  some  states  be  ac- 
knowledged and  recorded ;  Lewis  v.  Herrera, 
208  U.  S.  309,  28  Sup.  Ct.  412,  52  L.  Ed.  506. 
See  Acknowledgment  ;  Record.  In  Pennsyl- 
vania this  is  unnecessary  to  its  validity  as 
between  the  parties ;  Cable  v.  Cable,  146  Pa. 
451,  23  Atl.  223. 

"A  deed  Is  irrevocable  and  binding  on  the 


DEED 


813 


DEED 


promisor  from  the  moment  of  its  delivery  by 
him,  even  before  any  acceptance  by  the  prom- 
isee. The  promisor  does  not,  strictly  speak- 
ing, thereby  create  an  obligation,  but  rather 
declares  himself  actually  bound.  The  very 
object  of  the  Anglo-Norman  writing  under 
seal  was  to  dispense  with  any  other  kind  of 
proof;  Pollock,  Contr.  7. 

The  requisite  number  of  toitnesses  is  also 
prescribed  by  statute  in  most  of  the  states. 
Formal  parts.  The  premises  embrace  the 
statement  of  the  parties,  the  consideration, 
recitals  inserted  for  explanation,  description 
of  the  property  granted,  with  the  intended 
exceptions.  The  habendum  begins  at  the 
words  "to  have  and  to  hold,"  and  limits  and 
defines  the  estate  which  the  grantee  is  to 
have.  The  reddendum,  which  is  used  to  re- 
serve something  to  the  grantor,  see  Excep- 
tion ;  the  conditions,  see  Condition;  the 
covenants,  see  Covenant  ;  Warranty  ;  and 
the  conclusion,  which  mentions  the  execu- 
tion, date,  etc.,  properly  follow  in  the  order 
observed  here ;   3  Wasfib.  R.  P.  365. 

The  construction  of  deeds  is  favorable  to 
their  validity ;  the  principal  includes  the  in- 
cident;  punctuation  is  not  regarded;  a  false 
description  does  not  harm ;  the  construction 
is  least  favorable  to  the  party  making  the 
conveyance  or  reservation;  the  habendum  is 
rejected  if  repugnant  to  the  rest  of  the  deed. 
Shepp.  Touchst.  89;  3  Kent  422.  There  is  a 
tendency  in  the  modern  decisions  to  uphold 
conveyances  where  not  clearly  repugnant  to 
some  well  defined  rule  of  law ;  Love  v. 
Blauw,  61  Kan.  496,  59  Pac.  1059,  48  L.  R.  A. 
257,  78  Am.  St.  Rep.  334;  Abbott  v.  Holway, 
72  Ma  298;  Dismukes  v.  Parrott,  56  Ga. 
513;  Uhl  v.  R.  Co.,  ol  W.  Va.  106,  41  S.  E. 
340;  Sherwood  v.  Whiting,  54  Conn.  330,  8 
Atl.  80,  1  Am.  St.  Rep.  116;  Love  v.  Blauw, 
61  Kan.  496,  59  Pac.  1059,  48  L.  R.  A.  257,  78 
Am.  St.  Rep.  334,  where  an  instrument  con- 
veying lands  to  the  grantor's  children,  but 
the  estate  not  to  vest  in  them  until  the  death 
of  the  grantor,  was  held  not  to  be  testamen- 
tary, but  to  be  a  deed  presently  passing  an 
estate  in  remainder  to  the  grantees,  reserv- 
ing a  life  estate  to  the  grantor.  To  the  same 
effect;  Hunt  v.  Hunt.  119  Ky.  39,  82  S.  W. 
998,  68  L.  R.  A.  ISO,  7  Ann.  Cas.  7S8. 

The  true  test  in  such  cases  is  the  Intention 
of  the  maker;  Love  v.  Blauw.  <;i  Kan.  496, 
59  Pac.  1059,  48  L.  R.  A.  257,  78  Am.  St 
Rep.  334;  Nolan  v.  Otney,  7.".  Kan.  811,  S9 
Pac.  690,  9  L.  R.  A.  (X.  S.)  317;  Hunt  v. 
Hunt,  119  Ky.  39,  82  S.  W.  998,  68  L.  R.  A. 
180,  7  Ann.  Cas.  7SS,  where  it  is  said  to  be 
the  sounder  policy  in  case  of  doubt  to  declare 
the  instrument  a  deed,  and  thus  make  it  ef- 
fectual, when  holding  it  to  be  testamentary 
would,  for  want  of  the  requisite  number  of 
witnesses,  render  it  nugatory;  West  v. 
Wright,  115  Ga.  277,  41  S.  E.  602.  Such  an 
instrument  was  held  a  deed,  though  the  de- 
livery was  made  dependent  upon  the  per- 
formance of  a  condition  as  well  as  upon  the 


happening  of  a  contingency;  Hutton  v.  Cra- 
mer, 10  Ariz.  110,  85  Pac.  483,  103  Pac.  497, 
where  the  condition  (that  the  grantee  should 
give  the  grantor  a  respectable  burial)  was 
incapable  of  performance  in  the  lifetime  of 
the  grantor;  so  in  M-  Curry  v.  McCurry 
(Tex.)  95  S.  W.  35;  hut  a  conveyance  re- 
filing that  the  grantee  should  come  into  pos- 
session of  the  property  after  the  death  of  the 
grantor  on  condition  that  the  grantee  sbould 
care  for  the  grantor  as  long  as  he  should  live, 
was  held  to  be  testamentary;  Culy  v.  I'pham, 
135  Mich.  131,  97  N.  W.  405,  Km;  Am.  s 
388;  in  Arnegaard  v.  Arnegaard,  7  N.  D.  -17.". 
75  N.  W.  797,  41  L.  It  A.  258,  held,  that 
if  the  grantor  reserves  the  right  to  recall  the 
deed,  tlio  transaction  is  testamentary;  and 
so  in  Taft  v.  Taft,  59  Mich.  185,  26  N.  W. 
V2i;.  60  Am.  Eep.  291,  it  is  held  no  valid  de- 
livery can  be  accomplished  by  the  deposit  of 
a  deed  with  a  custodian  who  is  directed  to 
hold  it,  not  only  until  the  grantor  dies,  but 
until  the  grantee  does  something  on  his  part, 
and  then  deliver  it,  unless  the  required  act 
is  one  intended  to  be  performed  or  capable 
of  performance  while  the  grantor  is  jet 
alive. 

An  undelivered  deed  may  not  be  proved  to 
be  a  will  by  extrinsic  evidence  that  it  was 
executed  with  testamentary  intent;  Noble  v. 
Fickes,  230  111.  594,  82  N.  E.  '.>.".<>.  I.''.  L.  B.  A. 
(X.  S.)  1203,  12  Ann.  Cas.  282.  An  instru- 
ment using  words  of  conveyance  in  p+atenti 
will  be  considered  as  an  agreement  to  convey, 
and  not  a  conveyance,  if  it  is  manifest  that 
further  conveyance  was  contemplated;  Wil- 
liams v.  Paine,  109  U.  S.  55,  18  Sup.  Ct.  279, 
42  L.  Ed.  658,  cited  in  Mineral  Development 
Co.  v.  James,  97  Va.  111.  34  S.  E.  37.  The 
question  is  one  of  intention;  Phillips  v. 
Swank,  120  Pa.  76,  13  Atl.  712.  6  Am.  St 
Rep.  691 ;  Jackson  v.  Moncrief.  5  Wend,  I  X. 
Y.)  26. 

All  the  terms  of  a  deed  should  be  con- 
strued together:  Lowdermllb  Bros.  v.  Bos- 
tick,  98  N.  C.  299,  3  S.  E.  844;  Bradley  v. 
Zehmer,  82  Va.  685;  St  Louis  v.  Ruts,  138 
U.  S.  226,  11  Sup.  Ct.  337,  34  L.  Ed.  911 ;  and 
the  words  therein  should  he  taken  most 
strongly  against  the  party  using  them;  Doug- 
lass v.  Lewis,  131  U.  S.  7."..  !i  Sup.  ct.  634,  :::: 
L.  Ed.  53;  Homer  v.  Schonfeld,  84  Ala.  313, 
4  South.  105;  where  two  clauses  in  a  deed 
are  repugnant,  the  first  prevails;  Blair  v. 
Muse,  S3  Va.  238,  2  S.  E.  31  ;  and  if  possible 
a  deed  should  be  so  construed  as  to  give  it 
effect;  Cleveland  v.  Sims.  69  Tex.  153,  6  S. 
W.  634. 

"Sells"  In  a  deed  does  not  pass  title;  Tay- 
lor v.  Burns,  203  U.  S.  120,  27  Sup.  Ct  1". 
51  L.  Ed.  n<;. 

A  deed  speaks  from  the  time  of  its  de- 
livery, not  from  its  date;  Q.  s.  v.  Le  Baron, 
19  How.  (U.  S.)  73,  15  L.  Ed.  525 :  District 
of  Columbia  v.  Camden  Iron  Works.  1S1  U. 
S.  464,  21  Sup.  Ct.  6S0,  45  L.  Ed.  948;  and 
parol  evideuce  may  be  admitted  to  show  de- 


DEED 


814 


DEEM 


livery  at  a  date  subsequent  to  that  shown  on 
the  face  of  the  instrument;    id. 

The  lex  rei  sitce  governs  in  the  convey- 
ance of  lands,  both  as  to  the  requisites  and 
forms  of  conveyance.    See  Lex  Rei  SrriE. 

Recitals  in  deeds  of  payment  of  the  con- 
siderations expressed  therein  are  not  proof 
of  such  payments  as  against  persons  not  par- 
ties thereto;  Simmons  Creek  Coal  Co.  v. 
Doran,  142  U.  S.  417,  12  Sup.  Ct.  239,  35  L. 
Ed.  1063 ;  nor  is  a  consideration  always  nec- 
essary to  the  validity  of  a  deed  of  land ; 
Baker  v.  Westcott,  73  Tex.  129,  11  S.  W.  157. 
An  alteration  in  the  description  of  property 
in  a  deed  cannot  be  made  without  re-execu- 
tion, reacknowledgment,  and  redelivery,  after 
the  deed  has  been  delivered  and  recorded; 
Moelle  v.  Sherwood,  148  U.  S.  21,  13  Sup.  Ct. 
426,  37  L.  Ed.  350. 

In  the  Reading  Railroad  Company  Receiver- 
ship (1S95)  the  court  ordered  the  trustees  to 
execute  six  original  deeds,  for  convenience  in 
recording,  any  one  of  which  might  be  record- 
ed, each  to  be  an  original,  and  all  to  consti- 
tute one  deed. 

The  grantee  in  a  deed  is  bound  by  its 
covenant,  though  he  does  not  sign ;  Taft  v. 
Taft,  59  Mich.  185,  26  N.  W.  426,  60  Am. 
Rep.  291;   21  Harv.  L.  Rev.  587. 

See  Delivery  ;  Escrow  ;  Lost  Instrument  ; 
Attestation;  Alienation;  Ancient  Writ- 
ing. 

DEED  TO  DECLARE  USES.  A  deed 
made  after  a  fine  or  common  recovery,  to 
show  the  object  thereof. 

DEED  TO  LEAD  USES.  A  deed  made 
before  a  fine  or  common  recovery,  to  show 
the  object  thereof. 

DEED  POLL.  A  deed  which  is  made  by 
one  party  only. 

A  deed  in  which  only  the  party  making  it 
executes  it  or  binds  himself  by  it  as  a  deed. 
3  Washb.  R.  P.  311. 

The  term  is  now  applied  in  practice  main- 
ly to  deeds  by  sheriffs,  executors,  administra- 
tors, trustees,  and  the  like. 

The  distinction  between  deed  poll  and  Indenture 
has  come  to  be  of  but  little  importance.  The  ordi- 
nary purpose  of  a  deed  poll  is  merely  to  transfer 
the  rights  of  the  grantor  to  the  grantee.  It  was 
formerly  called  charta  de  una  parte,  and  usually  be- 
gan with  these  words,  Sciant  prcesentes  et  futuri 
quod  ego,  A,  etc.  ;  and  now  begins,  "Know  all  men 
by  these  presents  (taken  from  the  early  language  of 
writs  ;  3  Holdsw.  Hist.  E.  L.  193)  that  I,  A  B,  have 
given,  granted,  and  enfeoffed,  and  by  these  presents 
do  give,  grant,  and  enfeoff,"  etc.  Cruise,  Dig.  tit.  32, 
c.  1,  s.  23.    See  Indenture. 

DEED  OF  SETTLEMENT.  A  deed  for- 
merly used  in  England  for  the  formation  of 
joint  stock  companies  constituting  certain 
persons  trustees  of  the  partnership  property 
and  containing  regulations  for  the  manage- 
ment of  its  private  affairs.  They  are  now 
regulated  by  articles  of  association. 

DEEM.  To  decide;  to  judge  ;  to  sentence. 
When  by  statute  certain  acts  are  deemed  to 
be  crimes  of  a  particular  nature,   they  are 


such  crimes,  and  not  a  semblance  of  it,  nor 
a  mere  fanciful  approximation  to  or  designa- 
tion of  the  offence.  Com.  v.  Pratt,  132  Mass. 
247. 

When  a  thing  is  to  be  "deemed"  something 
else,  it  is  to  be  treated  as  that  something 
else  with  the  attendant  consequences,  but.it 
is  not  that  something  else ;  CO  L  J.  Q.  B. 
380.  When  a  statute  enacts  that  something 
sball  be  deemed  to  have  been  done,  which  in 
fact  and  truth  was  not  done,  the  court  is 
bound  to  ascertain  for  what  purpose  and  be- 
tween what  persons  the  statutory  fiction  is 
to  be  resorted  to ;   50  L.  J.  Ch.  662. 

DEEMSTERS.  Judges  in  the  Isle  of  Man, 
who  decide  all  controversies  without  process, 
writings,  or  any  cbarges.  Tbey  were  chosen 
by  the  people,  and  are  said  by  Spelman  to 
be  two  in  number.  Spelman,  Gloss. ;  Cam- 
den, Brit.;    Cowell. 

DEFACE.  To  mar  or  disfigure.  It  has 
been  held  that  to  write  on  a  license  anything, 
whether  true  or  false,  other  than  the  par- 
ticulars required,  defaces  it ;  15  L.  J.  C.  P. 
18;    [1S95]  1  Q.  B.  639. 

DEFALCATION.    Tbe  act  of  a  defaulter. 

The  reduction  of  the  claim  of  one  of  the 
contracting  parties  against  tbe  other,  by  de- 
ducting from  it  a  smaller  claim  due  from 
the  former  to  the  latter. 

The  law  operates  this  reduction  In  certain  cases ; 
for,  if  the  parties  die  or  are  insolvent,  the  balance 
between  them  is  the  only  claim  ;  but  if  they  are  sol- 
vent and  alive,  the  defendant  may  or  may  not  de- 
falcate at  his  choice.  See  Set-Off.  For  the  etymol- 
ogy of  this  world,  see  Brackenbridge,  Law  Misc.  186. 
Defalcation  was  unknown  at  common  law  ;  Com.  v. 
Clarkson,  1  Rawle  (Pa.)  291. 

DEFAMATION.  The  speaking  or  writing 
words  of  a  person  so  as  to  hurt  his  good 
fame,  de  bona  fama  aliquid  detrahere.  Writ- 
ten defamation  is  termed  libel,  and  oral 
defamation  slander,  which  titles  see.  It  is  a 
term  more  used  in  England  than  in  this  coun- 
try. 

See  Libel;    Slander. 

DEFAULT.  The  non-performance  of  a 
duty,  whether  arising  under  a  contract  or 
otherwise.  In  its  largest  and  most  general 
sense,  it  seems  to  mean  failing.  1  B.  &  P. 
258. 

The  non-appearance  of  a  plaintiff  or  de- 
fendant at  court  witbin  the  time  prescribed 
by  law  to  prosecute  his  claim  or  make  his 
defence. 

When  the  plaintiff  makes  default,  he  may  be  non- 
suited ;  and  when  the  defendant  makes  default, 
judgment  by  default  may  be  rendered  against  him. 
Comyns,  Dig.  Pleader,  E  42,  B.  11.  See  Judgment 
by  Default  ;  7  Viner,  Abr.  429 ;  Doctr.  Plac.  208 ; 
Grah.    Pr.   631. 

DEFEASANCE.  An  instrument  which  de- 
feats the  force  or  operation  of  some  other 
deed  or  of  an  estate.  That  which  is  in  the 
same  deed  is  called  a  condition;  and  that 
which  is  in  another  deed  is  a  defeasance. 
Comyns,  Dig.  Defeasance. 

The  defeasance  may  be  subsequent  to  the 


DEFEASANCE 


815 


DEFECT 


deed  in  case  of  things  executory ;  Co.  Litt. 
237  o;  2  Saund.  43;  but  must  be  a  part  of 
the  same  transaction  in  case  of  an  executed 
contract;  Co.  Litt  236  6;  Lund  v.  Lund,  1 
N.  H.  39,  8  Am.  Dec  29;  Swetland  v. 
land,  3  Mich.  482;  Kelly  v.  Thompson,  7 
Watts  (Pa.)  401.  Yet,  where  an  Instrument 
of  defeasance  is  executed  subsequently  in 
pursuance  of  an  agreement  made  at  the  time 
of  making  the  original  deed,  it  is  sufficient; 
2  Washb.  R.  P.  489;  as  well  as  where  a  deed 
and  the  defeasance  bear  different  dates  but 
are  delivered  at  the  same  time;  Devi.  Deeds 
1102;  Bodwell  v.  Webster,  13  Pick.  (Mass.) 
411;  Reitenbaugh  v.  Ludwick,  31  Pa.  131; 
Hale  v.  Jewell,  7  Greenl.  (Me.)  435,  22  Am. 
Dec.  212;  Freeman  v.  Baldwin,  13  Ala.  246. 
The  instrument  of  defeasance  must  at  law 
be  of  as  high  a  nature  as  the  principal  deed; 
Baton  v.  Green.  22  Pick.  (Mass.*  526;  Jaques 
v.  Weeks,  7  Watts  (Pa.)  261;  Kelly  v. 
Thompson,  7  Watts  (Pa.)  401;  Richardson 
v.  Woodbury,  4.".  Me.  206.  It  must  recite  the 
deed  it  relates  to,  or  at  least  the  most  ma- 
terial part  thereof:  and  it  is  to  be  made  be- 
tween the  same  persons  that  wore  parties 
to  the  first  deed;  Shaw  v.  Erskine,  43  Me. 
"71.  Defeasances  of  deeds  conveying  real 
estate  are  generally  subject  to  the  same 
rules  as  deeds,  as  to  record  and  notice  to 
purchasers;  Brown  v.  Dean,  3  Wend.  (N.  Y.) 
208;  Priedley  v.  Hamilton,  17  S.  &  R.  (Pa.) 
70,  17  Am.  Dec.  63S ;  Purrington  v.  Pierce, 
38  Me.  447;  but  in  some  states  actual  notice 
is  not  sufficient  without  recording;  Mich. 
Rev.  Stat.  201  ;  Minn.  Stat,  at  L.  1873,  34,  § 
23. 

In  equity,  a  defeasance  could  be  proved  by 
parol  and  a  deed,  absolute  on  its  face,  shown 
to  be  in  legal  effect  a  mortgage;  Pearson  v. 
Sharp,  115  Pa.  254,  9  Atl.  38;  but  such  evi- 
dence must  be  clear,  explicit,  and  unequivo- 
cal, and  the  parol  defeasance  must  be  shown 
to  have  been  contemporaneous  with  the  deed; 
id.  In  Pennsylvania,  all  defeasances  are 
now  required  to  be  in  writing,  executed  as 
deeds  and  recorded  within  sixty  days  after 
the  deed.    Act  of  June  8,  1SS1. 

DEFECT.  A  lack  or  absence  of  something 
essential  to  completeness.  00  L.  J.  Q.  B. 
The  want  of  something  required  by  law. 

In  pleading,  matter  sufficient  in  law  must 
be  deduced  and  expressed  according  to  the 
forms  of  law.  Defects  in  matters  of  sub- 
stance cannot  be  cured,  because  it  dors  cot 
appear  that  the  plaintiff  is  entitled  to  re- 
cover; but  when  the  defects  are  in  matter 
of  form,  they  are  cured  by  a  verdict  in  fa- 
vor of  the  party  who  committed  them:  Rob- 
inson v.  Clifford,  2  Wash.  C.  C,  l.  Fed  Cas. 
No.  11,94S;  Hunnicutt  v.  Carsley,  1  Ben.  & 
M.  (Va.)  153;  Read  v.  Inhabitants  of  Chelms- 
ford. 1G  Pick.  (Mass.)  128;  Worster  v.  Pro- 
prietors of  Canal  Bridge,  id.  541  :  Russell  v. 
Slade,  12  Conn.  455;  Minor  v.  Bank.  1  Pet 
(U.  S.)   70,  7  L.  Ed.  47;  Stanley  v.  Whipple, 


2  McL.  35,  Fed.  Cas.  No.  13,286;  Racon,  Abr. 
Verdict,  X.  See  Neil  v.  Board  of  Trustees, 
31  Ohio  St.  15;  Richtmyer  v.  Rlchtmyer,  50 

Barb.   (  X.  V.  >  ::  pound 

Co.  v.  Ins.  Co.,  40  V 

DEFECTUM,   CHALLENGE   PROPTER. 

See  Challenge. 

DEFECTUM    SANGUINIS.     See    Es< 

DEFENCE.  Torts.  A  forcible  resistance 
of  an  attack  by  force. 

A  man  is  Justified  in  defending  his  person. 
thai  of  bis  wife,  children,  and  servants,  and 
for  this  purpose  he  may  use  as  much 
as  may  be  necessary,  even  to  killing  the  as- 
sailant, remembering  that  the  means  used 
must  always  be  proportioned  to  the  oca 
and  that  an  excess  becomes  itself  an  Injury; 

3  M.  &  W.  150;  Jamison  v.  Moseley,  89 

478,  10  South.  582;  People  v.  Bruggy,  93  Cal. 
476,  29  Pac.  26;  Lovetf  v.  State,  30  I  hi.  142. 
11  South,  550,  17  L.  K.  A.  7".-,:  Kelly  v.  State, 
27  Tex.  App.  502,  11  S.  W.  «;27:  Duncan  v. 
State,  4!>  Ark.  543,  8  S.  W.  164;  Kstep  v. 
Com.,  80  Ky.  39,  4  S.  W.  820,  9  Am.  St  Rep. 
200;  but  it  must  be  in  defence,  and  not  in 
revenge;  1  C.  &  M.  214;  PolL  Torts  255; 
State  v.  McGraw,  36  S.  C.  2s::.  11  s.  E.  630; 
for  one  is  not  justified  in  shooting  another, 
if  such  other  party  is  retreating  or  has 
thrown  away  his  weapon;  Meurer  v.  State, 
129  Ind.  5S7,  29  N.  E.  392;  nor  is  a  mere 
threat  to  take  one's  life,  with  nothing  more, 
a  sufficient  defence  or  excuse  for  committing 
homicide;  State  v.  Howard,  35  S.  C.  197,  11 
S.  E.  481. 

A  man  may  also  repel  force  by  force  in 
defence  of  his  personal  property,  against  one 
who  manifestly  intends  or  endeavors,  by 
violence  or  surprise,  to  commit  a  known  fel- 
ony, as  rubbery,  by  any  force  short  of  tak- 
ing the  aggressor's  life;  l  Bish.  Now  Cr.  L. 
g  875;  or  short  of  wounding  or  the  employ- 
ment of  a  dangerous  weapon;  Com.  v.  Dona- 
hue, 148  Mass.  529,  20  N.  B.  171.  2  L.  R.  A. 
023,  12  Am.  St.  Rep.  591.  In  the  latter  case 
Holmes,  J.,  said:  "We  need  not  consider 
whether  this  explanation  is  quite  adequate. 
There  are  weighty  decisions  which  go  fur- 
ther than  those  above  cited,  and  which  can 
hardly  stand  on  the  riu'ht  of  self-defence, 
but  involve  other  considerations  of  polity." 
See  Powers  v.  People.  12  in.  App.  127. 

With  respect  to  the  defence  or  protection 
of  the  possession  of  real  property,  although 
it  is  Justifiable  even  to  kill  a  person  in  the 
act  of  attemptit  imlt    a    forcible   fel- 

ony, as  burglary  or  arson,  yet  this  justifica- 
tion can  only  take  place  when  the  party  in 
ion  is  wholly  without  fault  ;  1  Dale, 
PI.  cr.  no.  in:  1  Bast,  PL  Cr.  259,  277. 
And  where  an  Illegal  forcible  attack  is  made 
upon  a  dwelling-house  with  the  intention 
merely  of  committing  a  trespass,  and  not 
with  any  felonious  intent,  it  is  generally  law- 
ful for  the  rightful  occupant  to  oppose  it  by 


DEFENCE 


816 


DEFENDANT  IN  ERROR 


force;  7  Bing.  305;  20  Eng.  C.  L.  139.  See, 
generally,  1  Chit.  Pr.  589;  Grotius,  lib.  2,  c. 
1;  Rutherford,  Inst.  b.  1,  c.  16;  2  Whart. 
Cr.  L.  §  1019;  Bishop;  Clark;  Wharton, 
Criminal  Law;  Thompson,  Cases  of  Self- 
Defence;  Assault;  Self-Defence;  Justifi- 
cation. 

In  Pleading  and  Practice.  The  denial  of 
the  truth  or  validity  of  the  complaint.  A 
general  assertion  that  the  plaintiff  has  no 
ground  of  action,  which  is  afterwards  ex- 
tended and  maintained  in  the  plea.  3  Bla. 
Com.  296;  Co.  Litt.  127;  Wilson  v.  Poole, 
33  Ind.  448. 

In  this  sense  it  is  similar  to  the  contestatio  litis 
of  the  civilians,  and  does  not  include  justification. 
In  a  more  general  sense  it  denotes  the  means  by 
which  the  defendant  prevents  the  success  of  the 
plaintiff's  action,  or,  in  criminal  practice,  the  in- 
dictment. The  word  is  commonly  used  in  this  sense 
in  modern  practice. 

Half  defence  was  that  which  was  made  by 
the  form  "defends  the  force  and  injury',  and 
says"    (defendit  vim  et  injuriam,   et  dicit). 

Full  defence  was  that  which  was  made  by 
the  form  "defends  the  force  and  injury  when 
and  where  it  shall  behoove  him,  and  the 
damages,  and  whatever  else  he  ought  to  de- 
fend" (defendit  vim  et  injuriam  quando  et 
ubi  curia  consider atit,  et  damna  et  quicquid 
quod  ipse  defendere  debet,  et  dicit),  com- 
monly shortened  into  "defends  the  force  and 
injury  when,"  etc.  3  B.  &  P.  9,  n. ;  Co.  Litt. 
127  b  ;  Willes  41.  It  follows  immediately  up- 
on the  statement  of  appearance,  "comes" 
(venit),  thus:  "comes  and  defends."  By  a 
general  defence  the  propriety  of  the  writ,  the 
competency  of  the  plaintiff,  and  the  jurisdic- 
tion of  the  court  were  allowed ;  by  defending 
the  force  and  injury,  misnomer  was  waived ; 
by  defending  the  damages,  all  exceptions  to 
the  person  of  the  plaintiff ;  and  by  defending 
either  when,  etc.,  the  jurisdiction  of  the 
court  was  admitted.    3  Bla.  Com.  298. 

The  distinction  between  the  forms  of  half 
and  full  defence  was  first  lost  sight  of;  8 
Term  633 ;  Willes  41 ;  3  B.  &  P.  9 ;  2  Saund. 
209  c ;  and  no  necessity  for  a  technical  de- 
fence exists,  under  the  modern  forms  of  prac- 
tice. 

DEFENDANT.  A  party  sued  in  a  per- 
sonal action.  The  term  does  not  in  strict- 
ness apply  to  the  person  opposing  or  denying 
the  allegations  of  the  demandant  in  a  real 
action,  who  is  properly  called  the  tenant 
The  distinction,  however,  is  very  commonly 
disregarded;  and  the  term  is  further  fre- 
quently applied  to  denote  the  person  called 
upon  to  answer,  either  at  law  or  in  equity, 
and  as  well  in  criminal  as  civil  suits. 

See  Clagget  v.  Blanchard,  8  Dana  (Ky.) 
41 ;  Schuyler  County  v.  Mercer  County,  4 
Gilman  (111.)  20;  Almy  v.  Piatt,  16  Wis.  169; 
Leavitt  v.  Lyons,  118  Mass.  470;  Com.  v. 
Certain  Intoxicating  Liquors,  122  Mass.  8; 
56  L.  J.  Ch.  D.  400;  Waddell  v.  Lanier,  54 
Ala.  440. 


DEFENDANT  IN  ERROR.  The  distinc- 
tive term  appropriate  to  the  party  against 
whom  a  writ  of  error  is  sued  out. 

DEFENDARE.  To  answer  for;  to  be  re- 
sponsible for.    Medley. 

DEFENDEMUS  (Lat.  we  will  defend).  A 
word  anciently  used  in  feoffments  or  gifts, 
whereby  the  donor  and  his  heirs  were  bound 
to  defend  the  donee  against  any  servitude 
or  incumbrance  on  the  thing  granted,  other 
than  contained  in  the  donation.     Cowell. 

DEFENDER.     In   Scotch    and    Canon    Law. 

A  defendant. 

DEFENDER  (Fr.).  To  deny;  to  defend; 
to  conduct  a  suit  for  a  defendant ;  to  forbid ; 
to  prevent;  to  protect. 

DEFENDER     OF     THE     FAITH.     A    title 

originally  given  to  the  kings  of  England  by 
the  Pope.  It  was  first  given  by  Leo  X.  to 
Henry  VIII.     It  is  still  part  of  the  title. 

DEFENERATION.  The  act  of  lending 
money  on  usury.    Wharton. 

DEFENSA.  A  park  or  place  fenced  in 
for  deer,  and  defended  as  a  property  and  pe- 
culiar for  that  use  and  service.     Cowell. 

DEFENSE  AU  FOND  EN  DROIT  (called, 
also,  defense  en  droit).  A  demurrer.  2 
Low.  C.  278.     See,  also,  1  Low.  C.  216. 

DEFENSE  AU  FOND  EN  FAIT.  The  gen- 
eral issue.    3  Low.  C.  421. 

DEFENSIVE  ALLEGATION.  In  Ecclesi- 
astical Practice.  The  answer  of  the  party 
defending  to  the  allegations  of  the  party 
moving  the  cause.     3  Bla.  Com.  100. 

DEFENSIVE  WAR.  A  war  in  defence  of 
national  right, — not  necessarily  defensive  in 
its  operations.     1  Kent  50. 

DEFENSOR.  In  Civil  Law.  A  defender; 
one  who  takes  upon  himself  the  defence  of 
another's  cause,   assuming  his  liabilities. 

An  advocate  in  court.  In  this  sense  the 
word  is  very  general  in  its  signification,  in- 
cluding advocatus,  patronus,  procurator,  etc. 
A  tutor  or  guardian.     Calvinus,  Lex. 

In  Old  English  Law.  A  guardian  or  pro- 
tector. Spelman,  Gloss.  The  defendant;  a 
warrantor.     Bracton. 

In  Canon  Law.  The  advocate  of  a  church. 
The  patron.  See  Advocatus.  An  officer  hav- 
ing charge  of  the  temporal  affairs  of  the 
church.     Spelman,  Gloss. 

DEFENSOR  CIVITATIS  (Lat.  defender  of 
the  state).  In  Roman  Law.  An  officer 
whose  business  it  was  to  transact  certain 
business  of  the  state. 

Those  officers  were  so  called  who,  like  the  tribunes 
of  the  people  at  first,  were  chosen  by  the  people  in 
the  large  cities  and  towns,  and  whose  duty  it  was  to 
watch  over  the  order  of  the  city,  protect  the  people 
and  the  decuriones  from  all  harm,  protect  sailors 
and  naval  people,  attend  to  the  complaints  of  those 
who    had   suffered    injuries,    and  •  discharge   various 


DEFENSOR  CIVITATIS 


817 


DEFINITION 


other  duties.  As  will  be  seen,  they  had  considerable 
Judicial  power.  Du  Cange  ;  Schmidt,  Civ.  Law,  In- 
trod.   16. 

DEFENSUM.  A  prohibition;  an  enclo- 
sure.    Medley,  Eng.  Const.  Hist 

DEFERRED   STOCK.     See  Stock. 

DEFICIT  (Lat.  Is  wanting).  The  defi- 
ciency which  is  discovered  in  the  accounts 
of  an  accountant,  or  in  the  money  which  he 
has  received. 

DEFICIT,  DEFICIENCY.  That  part  of  a 
debt  which  a  mortgage  was  given  to  secure 
and  not  realized  from  the  sale  of  the  mort- 
gaged property.  Goldsmith  v.  Brown,  .".."J 
Barb.  I  N.  Y.  I  492.  See  Johnson  v.  McKin- 
non,  54  Fla.  221,  45  South.  ,23,  13  L.  B.  A. 
(N.  S.)  874,  127  Am.  St.  Rep.  135,  14  Ann. 
Cas.  180. 

DEFINE.  In  legislation,  to  determine  or 
fix.  People  v.  Bradley,  3G  Mich.  452  (as  ap- 
plied to  boundaries).  To  enumerate.  U.  S. 
v.  Smith,  5  Wheat  (U.  S.)  160,  5  L.  Ed.  57. 
To  declare  that  a  certain  act  shall  constitute 
an  offence  is  defining  that  offence;  D.  S.  v. 
Arjona,  120  U.  S.  488,  7  Sup.  Ct.  G2S,  30  L. 
Ed.  728. 

DEFINITE.    Bounded;  determinate;  fixed. 

A  definite  failure  of  issue  occurs  when  a 
precise  time  is  fixed  by  a  will  for  a  failure 
of  issue.  An  indefinite  failure  of  issue  is 
the  period  when  the  issue  of  the  first  taker 
shall  become  extinct  and  when  there  shall 
no  longer  be  any  issue  of  the  grantee,  but 
without  reference  to  a  particular  time  or 
event;  Huxford  v.  Milligan,  50  Ind.  5-K>. 

DEFINITION.  An  enumeration  of  the 
principal  ideas  of  which  a  compound  idea  is 
formed,  to  ascertain  and  explain  its  nature; 
that  which  denotes  and  points  out  the  sub- 
stance of  a  thing.     Ayliffe,  Pand.  59. 

Definitions  are  always  dangerous,  because 
it  is  always  difficult  to  prevent  their  being 
inaccurate,  or  their  becoming  so:  ouuiis  defl- 
nitio  in  jure  cirili  perioulosa  est,  parutn  est 
cnim  ut  non  subverti  possit. 

All  ideas  are  not  susceptible  of  definition, 
and  many  legal  terms  cannot  be  defined. 
This  inability  is  frequently  supplied,  in  a 
considerable  degree,  by  descriptions. 

It  has  been  said  that  a  definition  is  the 
most  difficult  of  all  things.  There  is  far 
greater  probability  of  a  correct  use  of  terms 
than  of  a  correct  definition  of  them ;  a  cor- 
rect use  renders  definition  unnecessary.  20 
Sol.  Journ.  8G9,  quoted  in  Thayer,  Evid.  190, 
with  a  comment  that  legal  scholarship  will 
be  best  used  to  clarify  and  restate  the  law. 

The  meaning  of  ordinary  words,  when 
used  in  acts  of  parliament,  is  to  be  found, 
not  so  much  in  a  strict  etymological  proprie- 
ty of  language,  nor  even  in  popular  use,  as 
in  the  subject  or  occasion  on  which  they  are 
used,  and  the  object  which  is  intended  to  be 
attained ;  L.  R.  1  Ex.  D.  143 ;  for  words  used 
with  reference  to  one  set  of  circumstances 
Bouv.— 52 


may  convey  an  intention  quite  different  from 
what  the  selfsame  set  of  words  used  in  ref- 
erence to  another  set  of  circumstances  would 
<>r  might  have  produced;  L.  R.  3  App.  Cas. 
68. 

"A  general  dictionary  of  the  English  lan- 
guage is  not  authority  to  show,  on  a  trial, 
the  meaning  of  a  word  which  is  n 

deriving  a  peculiar  m ill  . 

usage;"  7  C.  &  P.  701;  approved  in  L.  It.  5 
Exch,  179,  184. 

The    definitions    of    the    standard    Le 
raphers    are     authority     as     indicating 
popular  use  of  words;  Burnam  v.  Ban 
Mo.  351.     Regard  must  always  be  had  to  the 
circumstances  under  which  a  word  is 
in  a  statute;  Pennsylvania  R.  Co.  v.  Price, 
96   Pa.  267.     Where  Inconsistent  with  code 
statutes,    a    definition    is    modified:    Ellis    v. 
Prevost,   13   La.   230.     Legal    definitions   for 
the    most   part   are    generalizations    derived 
from   judicial   experience.     To   be  complete 
and  adequate  they  must  sum  up  the  <• 
of   all   that  experience;   Mickle   v.  Miles,  31 
Pa.  21. 

DEFINITIVE.     That    which    terminal 
suit;    final.      A    definitive  sentence   or    judg- 
ment  is  put  in  opposition  to  an  interlocutory 
judgment. 

A  distinction  has  been  drawn  in  the  Unit- 
ed States  supreme  court  between  a  final  and 
a  definitive  judgment  in  regard  to  the  con- 
demnation of  a  prize  in  a  court  of  admiral- 
ty; r.  S.  v.  The  Peggy,  1  Cra.  (U.  S.)  l"::. 
2  L.  Ed.  49 ;  but  for  all  practical  purposes  a 
definitive  judgment  or  decree  is  final;  Ap- 
peal of  Gesell,  84  Pa.  238.  See  Di 
Judgment. 

DEFLORATION.  The  act  by  which  a  wo- 
man is  deprived  of  her  virginity. 

When  this  is  done  unlawfully  and  againsl 
her  will,  it  bears  the  name  of  rape  (which 
seet  :  when  she  consents,  it  is  fornication 
(which  see)  ;  or  if  the  man  be  married  it  is 
adultery  on  bis  part;  2  Greenl.  Ev.  S  lv: 
Com.  v.  Call,  21  Pick.  (Masa)  509,  32 
Dec.  281;  state  v.  Hutchinson,  ::•;  Me.  261; 
Cook  v.  State,  11  Ga.  53.  ."<;  Am.  Dec.  410; 
Respublica  v.  Roberts.  2  DaiL  (U.  B.)  124, 
1  L.  Ed.  .".i»;. 

DEFORCEMENT.  The  holding  any  lands 
or  tenements  to  which  another  has  a  right. 
In  its  most  extensive  sense  the  term  includes  any 
withholding  of  any  lands  or  tenements  to  which 
another  parson  has  a  right ;  Co.  Litt.  277  ;  Phelps 
v.  Baldwin,  17  Conn.  212  ;  so  that  this  includes  as 
well  an  abatement,  an  intrusion,  a  disseisin,  or  a 
discontinuance,  as  any  other  species  of  wrong  what- 
soever, by  which  the  owner  of  the  freehold  is  kept 
out  of  possession.  But,  as  contradistinguished  from 
the  former,  it  is  only  such  a  detainer  of  the  freehold 
from  him  who  has  the  right  of  property  as  falls 
within  none  of  the  injuries  above  mentioned  ;  3  Bla. 
Com.    173;     Archb.    Civ.   PI.   13;    Dane,    Abr.    Index. 

DEFORCIANT.  One  who  wrongfully 
keeps  the  owner  of  lands  and  tenements  <mt 
of  the  possession  of  them.    2  Bla.  Com.  350. 


J>EFORCIARE 


818 


DECREE 


DEFORCIARE.  To  withhold  lands  or  ten- 
ements from  the  rightful  owner.  This  is  a 
word  of  art  which  cannot  be  supplied  by 
any  other  word.  Co.  Litt.  331  & ;  3  Thomas, 
Co.  Litt  3;  Bract,  lib.  4,  238;  Fleta,  lib.  5, 
e.  11. 

DEFOSSION.  The  punishment  of  being 
buried  alive.     Black,  L.  Diet. 

DEFRAUD.  To  defraud  is  to  withhold 
from  another  that  which  is  justly  due  to 
him,  or  to  deprive  him  of  a  right  by  decep- 
tion or  artifice.  Burdick  v.  Post,  12  Barb. 
(N.  Y.)  186.  It  is  not  synonymous  with 
"hinder  and  delay";  Crow  v.  Beardsley,  68 
Mo.  435.     See  Fraud. 

DEFRAUDACION.  In  Spanish  Law.  The 
crime  committed  by  a  person  who  fraudu- 
lently avoids  the  payment  of  some  public 
tax. 

DEGRADATION.  The  act  of  depriving  a 
priest  of  his  orders  or  benefices  or  of  both, 
either  by  word  of  mouth  or  by  public  re- 
proach, and  a  solemn  ceremony  of  stripping 
from  the  offender  the  vestments  of  his  office. 

The  mode  of  proceeding  in  the  trial  of 
clergymen  is  determined  by  canons  in  the 
various  dioceses. 

The  same  term  is  applied  to  the  loss,  by  a 
peer,  of  his  rank  as  such,  as  when  he  is 
deprived  thereof  by  act  of  parliament.  2 
Steph.  Com.  608.  Degradation  must  be  dis- 
tinguished from  disqualification  for  bank- 
ruptcy, under  stat.  34  &  35  Vict.  c.  50. 

DEGRADING.  Sinking  or  lowering  a  per- 
son in  the  estimation  of  the  public. 

As  to  compelling  a  witness  to  answer  ques- 
tions tending  to  degrade  him,  see  Witness  ; 
13  Howell,  St.  Tr.  17,  334;  16  id.  161;  1 
Phill.  Ev.  269.  To  write  or  print  of  a  man 
what  will  degrade  him  in  society  is  a  libel ; 
1  Dowl.  674;  2  M.  &  R.  77.  See  Incrimina- 
tion. 

DEGREE  (Fr.  degre~,  from  Lat.  gradus,  a 
step  in  a  stairway ;   a  round   of  a  ladder) . 

A  remove  or  step  in  the  line  of  descent  or 
consanguinity. 

As  used  in  law,  it  designates  the  distance  between 
those  who  are  allied  by  blood:  it  means  the  rela- 
tions descending  from  a  common  ancestor,  from  gen- 
eration to  generation,  as  by  so  many  steps.  Hence, 
according  to  some  lexicographers,  we  obtain  the 
word  pedigree  (q.  v.)  par  degrez  (by  degrees),  the 
descent  being  reckoned  par  degrez.  Minshew.  Bach 
generation  lengthens  the  line  of  descent  one  de- 
gree ;  for  the  degrees  are  only  the.  generations 
marked  in  a  line  by  small  circles  or  squares,  in 
which  the  names  of  the  persons  forming  it  are  writ- 
ten. See  Consanguinity  ;  Line  ;  Ayliffe,  Parerg. 
209  ;  Toullier,  Droit  Civ.  Franc,  liv.  3,  t.  1,  c.  3,  n. 
158  ;    Aso  &  M.  Inst.  b.  2,  t.  4,  c.  3,  §  1. 

In  criminal  law,  the  word  is  used  to  dis- 
tinguish different  grades  of  guilt  and  pun- 
ishment attached  to  the  same  act,  commit- 
ted under  different  circumstances,  as  mur- 
der in  the  first  and  second  degrees. 


The  state  or  civil  condition  of  a  person. 
State  v.  Bishop,  15  Me.  122. 

The  ancient  English  statute  of  additions,  for  ex- 
ample, requires  that  in  process,  for  the  better  de- 
scription of  a  defendant,  his  state,  degree,  or  mys- 
tery shall  be  mentioned. 

An  honorable  state  or  condition  to  which 
a  student  is  advanced  in  testimony  of  pro- 
ficiency in  arts  and  sciences.  See  College; 
Diploma. 

They  are  of  pontifical  origin.  See  1  Schmidt, 
Thesaurus,  144;  Vicat,  Doctores ;  Minshew,  Diet. 
Bacheler;  Merlin,  Repertoire  Univ.;  Van  Espen. 
pt.  1,  tit.  10  ;  Giannone,  Istoria  di  Napoli,  lib.  xi.  c. 
2,   for   a  full   account  of   this   matter. 

For  the  degrees  of  negligence,  see  Negli- 
gence; Bailee;  Bailment. 

DEHORS  (Fr.  out  of;  without).  Some- 
thing out  of  the  record,  agreement,  will,  or 
other  thing  spoken  of;  something  foreign 
to  the  matter  in  question.     See  Aliunde. 

DEI  GRATIA.  By  the  grace  of  God.  An 
expression  used  in  the  titles  of  sovereigns 
denoting  a  claim  of  authority  derived  from 
divine  right.  It  was  anciently  a  part  of  the 
titles  of  inferior  magistrates  and  other  of- 
ficers, civil  and  ecclesiastical,  but  was  after- 
wards considered  a  prerogative  of  royalty. 
Abbott;  A.  M.  Eaton,  in  Report  of  Am.  Bar 
Assoc.    (1902)   313. 

DEI   JUDICIUM.     See  Judicium  Dei. 

DEJACI0N.  In  Spanish  Law.  A  general 
term  applicable  to  the  surrender  of  his  prop- 
erty to  his  creditors  by  an  insolvent.  The 
renunciation  of  an  inheritance.  The  release 
of  a  mortgage  upon  payment,  and  the  aban- 
donment of  the  property  insured  to  the  in- 
surer. 

DEL  CREDERE  COMMISSION.  One  un- 
der which  the  agent,  in  consideration  of  an 
additional  payment,  engages  to  become  sure- 
ty to  his  principal  for  not  only  the  solvency 
of  the  debtor,  but  the  punctual  discharge  of 
the  debt.  21  W.  R.  465;  L.  R.  6  Ch.  App. 
397.  He  is  liable,  in  the  first  instance,  with- 
out any  demand  from  the  debtor.  The  prin- 
cipal cannot  sue  the  del  credere  factor  until 
the  debtor  has  refused  or  neglected  to  pay ; 
1  Term  112;  Paley,  Ag.  39.  See  Pars. 
Contr. ;    Story  ;   Wharton ;   Mechem,   Agency. 

He  is  virtually  a  surety;  8  Ex.  40;  and 
the  purchaser  is  the  primary  debtor ;  Gindre 
v.  Kean,  7  Misc.  582,  28  N.  Y.  Supp.  4.  He  is 
distinguished  from  other  agents  by  the  fact 
that  he  guarantees  that  those  persons  to 
whom  he  sells  shall  perform  the  contracts 
which  he  makes  with  them ;  L.  R.  6  Ch.  403. 

DELATE.  In  Scotch  Law.  To  accuse. 
Bell,  Diet. 

DELATIO.  In  Civil  Law.  An  accusa- 
tion or  information.     Du  Cange. 


DELATOR.     An  accuser  or  informer. 
Cange. 


Du 


DELATURA 


819 


:NJE 


DELATURA.  In  Old  English  Law.  An  ac- 
cusation. Cunningham.  The  reward  of  an 
informer.     Whishaw. 

DELAWARE.  The  name  of  one  of  the 
original  states  of  the  United  States  of  Amer- 
ica, being  the  flrsl  to  adopt  the  constitution. 

In  16:13,  Corn  lius  May,  with  some  Dutch  emi- 
grants, established  a  trading-house,  but  the  settlers 
soon  removed  to  North  river.  Ten  years  afterwards 
De  Vries  arrived  at  Cape  Henlopen,  but  the  natives 
shortly  destroyed  the  settlement.  In  the  spring  of 
1638  the  Swedes  under  Minult  established  a  settle- 
ment at  the  mouth  of  the  Minquas  river,  which  was 
called  by  them  the  Christiana,  in  honor  of  their 
queen.  They  purchased  all  the  lauds  from  Cape 
Henlopen  to  the  falls  near  Trenton,  and  named  the 
country  New  Sweden.  Stuyvesant,  the  Dutch  gov- 
ernor of  New  York,  ended  the  Swedish  authority  in 
1654.  The  Dutch  held  the  country  until  1 
fell  Into  the  hands  of  the  English,  and  was  granted 
by  Charles  II.  to  his  brother  James,  Duke  of  York. 
In  16SH,  William  Penn  obtained  a  patent  from  the 
Duke  of  York,  releasing  all  his  title  claimed  through 
his  patent  from  the  crown  to  a  portion  of  the  terri- 
tory. By  this  grant  Penn  became  possessed  of  New 
Castle  and  the  land  lying  within  a  circle  of  twelve 
miles  around  it,  and  subsequently  of  a  tract  of  land 
beginning  twelve  miles  south  of  New  Castle  and 
extending  to  Cape  Henlopen.  In  consequence  of  a 
dispute  between  Penn  and  Lord  Baltimore,  the  south 
and  west  lines,  dividing  his  possessions  from  Mary- 
land, were  traced  in  1761,  under  a  decree  of  Lord- 
Chancellor  Hardwicke,  by  the  surveyors  Mason  and 
Dixon  ;  and  this  line,  extended  westward  between 
Maryland  and  Pennsylvania,  has  become  historical 
as  Mason  and  Dixon's  Line  (q.  v.). 

Delaware  was  divided  into  three  counties,  called 
New  Castle,  Kent,  and  Sussex,  and  by  enactment  of 
Penn  was  annexed  to  Pennsylvania  under  the  name 
of  the  Three  Lower  Counties  upon  Delaware.  These 
counties  remained  for  twenty  years  a  part  of  Penn- 
sylvania, each  county  sending  six  delegates  to  the 
general  assembly.  They  separated  in  1703,  with  the 
consent  of  the  proprietary,  and  were  governed  by  a 
separate  legislature  of  their  own,  pursuant  to  the 
liberty  reserved  to  them  by  a  clause  of  their  orig- 
inal charter. 

Delaware  was  the  first  state  to  ratify  the  federal 
constitution,  on  December  7,  1787. 

In  1776  a  state  constitution  was  framed,  a  second 
In  1792,  and  a  third  in  1831,  which  remained  In  force 
until  1897.  The  agitation  for  constitutional  changes 
was  begun  before  1850,  and  in  1S53  a  convention  was 
held  and  a  constitution  adopted  which  was,  on  sub- 
mission to  a  popular  vote,  defeated.  After  the  civil 
war  the  efforts  to  obtain  a  convention  were  resumed, 
but  were  unsuccessful  until  1896. 

The  present  constitution  was  adopted  June  4,  1897, 
by  a  constitutional  convention  which  was  duly 
called  to  meet  in  December,  1896,  delegates  having 
been  elected  at  the  general  election  of  that  year. 
The  constitution  contains  the  usual  declaration  of 
rights,  no  change  being  made  in  that  article.  Minor 
amendments  were  adopted  in  19H.  relating  to  the 
legislative  Journals  and  the   judiciary. 

DELAY.  To  procrastinate;  detain  or 
stop;  to  prolong. 

See  Hinder  and  Delay. 

As    to    delay    in    presenting    checks, 
Check. 

As  to  delay  in  the  execution  of  contract 
work,  see  Negligence;  Breach  of  Contra.)  i  : 
Performance;  Time. 

DELECTUS  PERSON/E  (T.at.  the  choice 
of  the  person).  The  right  of  a  partner  to 
decide  what  new  partners,  if  any,  shall  In- 
admitted  to  the  firm.     Story,  Partn.  S§  5,  195. 

This  doctrine  excludes  even  executors  aud 


Of  partners  from 
to  the  stan 
man   v.   Spurr,   7    V 
Lindi.  Partn.  • 

DELECATE.     One  au?  other 

in  his  name ;  an  . 
A  person  elected,  by  I  of  an  or- 

ganiz  d   territory   of   th< 

of  debating,  but  n 
July  13,  1787;  2  Story,  I  .  S.  1. 

A   person  chosen    to   any  deliberatl 
sembly.     it   Is,  however,  in  this 
(■rally  limited  to  occasional  a 
as   conventions  and   the  like,   and 
usually  apply  to  permanent  bodies,  as  : 
Of    assembly,    etc.      In    Maryland    I 
numerous  branch  of  the  Legislature  i- 
e  1  the  House  of  Delegates. 

As  to  its  meaning  when  used  as  a  verb, 
see  Delegation. 

DELEGATION.  In  Civil  Law.  A  kind  of 
novation  by  which  the  original  debtor,  In 
order  to  be  liberated  from  his  creaicor,  gives 
him  a  third  person,  who  becomes  obliged  in 
his  stead  to  the  creditor  or  to  the  i 
appointed  by  him.     .See  Novation. 

Perfect  delegation  exists  when  the  debtor 
who  makes  the  obligation  is  discharged  bj 
the  creditor. 

Imperfect  delegation  exists  when  the 
itor  retains   his   rights  against    the   original 
debtor.     2  Duvergnoy,  n.  160. 

It  results  from  the  definition  that  a  dele- 
gation  is   made   by   the   concurrence   of  at 
least   three  parties,   viz.:   the  party  de 
iug — that  is,  the  former  debtor  who  procures 
another  debtor  in  his  stead;  the  parts 
gated,  who  enters  into  the  obligation  in  the 
place   of   the   former   debtor,   either    to   the 
creditor  or  to  some  other  person  appointed 
by    him;    and    the   creditor,    who,    in    eonse- 
quence  of  the  obligation  contracted  by  the 
party  delegated,  discharges  the  party  dele- 
gating.   Sometimes  there  Intervenes  a  I 
party;    namely,   the  person  indicated   by   the 
creditor  in  whose  favor  the  person 
becomes  obliged,  upon  the  Indication  of  the 
creditor  and  by  the  order  of  the  person  del- 
egating.    Pothier,   Obi.   pt  ■"•.   c.   2,   aj 
Adams  v.  Power.  48  Miss.  -i'-i.    See  La.  Civ. 
Code   2188,    2189;    Kellogg   v.    Richard 
Wend.  (N.   10    L16;   Buster   v.   Newldrk,   20 
Johns.  (X.  Y.)  76;  Wentworth  v.  Wentworth, 
6  N.    II.    11":    Sterling  v.   Trading  Co.,   11    S, 
&   R,   (Pa.)  170. 

The  party  delegated  is  commonly  a 
or  of  the  person  delegating,  and,  in  order 
to  be  liberated  from  the  obligation  to  him. 
contracts  a  new  one  with  his  creditor.  In 
this  case  there  is  a  novation  both  of  the  ob- 
ligation of  the  person  delegating,  by  bis 
giving  his  creditor  a  new  debtor,  and  of  the 
person  delegated,  by  the  new  obligation 
which  he  contracts,     l'othier,  ut  supra. 


DELEGATION 


820 


DELEGATION 


In  general,  where  the  person  delegated 
contracts  a  valid  obligation  to  the  creditor, 
the  delegant  is  entirely  liberated,  and  the 
creditor  bas  no  recourse  against  him  in  case 
of  the  substitute's  insolvency.  There  is  an 
exception  to  this  rule  when  it  is  agreed  that 
tbe  debtor  shall  at  his  own  risk  delegate  an- 
other person ;  but  even  in  that  case  the  cred- 
itor must  not  have  omitted  using  proper 
diligence  to  obtain  payment  wbilst  the  sub- 
stitute continued  solvent.     Pothier. 

Delegation  differs  from  transfer  and  sim- 
ple indication.  The  transfer  which  a  cred- 
itor makes  of  his  debt  does  not  include  any 
novation.  It  is  the  original  debt  which 
passes  from  one  of  the  parties,  who  makes 
the  transfer  to  the  other,  who  receives  it, 
and  only  takes  place  between  these  two  per- 
sons, without  the  consent  of  the  debtor  nec- 
essarily intervening.  Again,  when  the  debtor 
indicates  to  the  creditor  a  person  from  whom 
he  may  receive  payment  of  the  debt,  and  to 
whom  the  debtor  gives  the  creditor  an  order 
for  the  purpose,  it  is  merely  a  mandate,  and 
neither  a  transfer  nor  a  novation.  So,  where 
the  creditor  indicates  a  person  to  whom  his 
debtor  may  pay  the  money,  the  debtor  does 
not  contract  any  obligation  to  the  person  in- 
dicated, but  continues  the  debtor  of  his  cred- 
itor who  made  the  indication.  Pothier.  See 
Novation. 

At  Common  Law.  The  transfer  of  authori- 
ty from  one  or  more  persons  to  one  or  more 
others. 

Any  person,  sui  juris,  may  delegate  to  an- 
other in  authority  to  act  for  him  in  a  matter 
which  is  lawful  and  otherwise  capable  of 
being  delegated;  Comyns,  Dig.  Attorney,  c. 
1 ;  9  Co.  75  0 ;  Story,  Ag.  §  6. 

When  a  bare  power  or  authority  has  been 
given  to  another,  the  latter  cannot,  in  gen- 
eral, delegate  that  authority,  or  any  part 
of  it,  to  a  third  person,  for  the  obvious  rea- 
son that  the  principal  has  relied  upon  the 
intelligence,  skill,  and  ability  of  his  agent, 
and  cannot  have  the  same  confidence  in  a 
stranger;  Story,  Ag.  §  13;  2  Kent  633; 
Broom,  Leg.  Max.  839;  Shankland  v.  Wash- 
ington, 5  Pet.  (U.  S.)  390,  8  L.  Ed.  166;  Ex 
parte  Winsor,  3  Sto.  411,  425,  Fed.  Cas.  No. 
17,884 ;  Entz  v.  Mills,  1  McMull.  (S.  C.)  453 ; 
Brewster  v.  Hobart,  15  Pick.  (Mass.)  303; 
Wilson  v.  R.  Co.,  11  Gill  &  J.  (Md.)  58: 
Mason  v.  Wait,  4  Scam.  (111.)  127,133;  Smith 
v.  Lowther,  35  W.  Va.  300,  13  S.  E.  999; 
Whitlock  v.  Washburn,  62  Hun  369,  17  N. 
Y.  Supp.  60.  A  power  to  delegate  his  au- 
thority may,  however,  be  given  to  the  agent 
by  express  terms  of  substitution ;  Commer- 
cial Bank  of  Lake  Erie  v.  Norton,  1  Hill  (N. 
Y.)  505.  If  the  power  of  the  agent  is  cre- 
ated by  writing,  he  cannot  go  beyond  it; 
Henry  v.  Lane,  128  Fed.  243,  62  C.  C.  A.  625. 

Sometimes  such  power  is  implied,  as  in 
the  following  cases :  First,  when,  by  the 
law,  such  power  is  indispensable  in  order  to 


accomplish  the  end  proposed:  as,  for  exam- 
ple, when  goods  are  directed  to  be  sold  at 
auction,  and  the  law  forbids  such  sales  ex- 
cept by  licensed  auctioneers ;  Laussatt  v. 
Lippincott,  6  S.  &  R.  (Pa.)  386,  9  Am.  Dec. 
440.  Second,  when  the  employment  of  such 
substitute  is  in  the  ordinary  course  of  trade: 
as,  where  it  is  the  custom  of  trade  to  em- 
ploy a  shipbroker  or  other  agent  for  the 
purpose  of  procuring  freight  and  the  like ; 
2  M.  &  S.  301;  Gray  v.  Murry,  3  Johns.  Ch. 
(N.  Y.)  107;  Laussatt  v.  Lippincott,  6  S.  & 
R.  (Pa.)  386,  9  Am.  Dec.  440.  Third,  when  it 
is  understood  by  the  parties  to  be  the  mode 
in  which  the  particular  thing  would  or  might 
be  done ;  9  Ves.  234,  251,  252 ;  2  M.  &  S.  301, 
303,  note.  See  the  Guiding  Star,  53  Fed.  936. 
Fourth,  when  the  powers  thus  delegated  are 
merely  mechanical  in  their  nature;  Commer- 
cial Bank  of  Lake  Erie  v.  Norton,  1  Hill 
(N.  Y.)  501;  Sugd.  Pow.  176.  See  Principal 
and  Agent. 

As  to  the  form  of  the  delegation,  for  most 
purposes  it  may  be  either  in  writing,  not 
under  seal,  or  verbally  without  writing;  or 
the  authority  may  be  implied.  When,  how- 
ever, the  act  is  required  to  be  done  under 
seal,  the  delegation  must  also  be  under  seal 
unless  the  principal  is  present  and  verbally 
or  impliedly  authorizes  the  act;  Story,  Ag. 
§  51;  Mech.  Ag.  81;  Gardner  v.  Gardner,  5 
Cush.  (Mass.)  483,  52  Am.  Dec.  740. 

Judicial  power  cannot  be  delegated;  Cohen 
v.  I-Ioff,  3  Brev.  (S.  C.)  500;  Fertilizer  Co.  v. 
Taylor,  112  N.  C.  141,  17  S.  E.  69;  a  statute 
authorizing  an  attorney  to  sit  in  the  place 
of  a  judge  who  was  disqualified,  by  reason 
of  prejudice  or  interest,  is  void ;  Van  Slyke 
v.  Ins.  Co.,  39  Wis.  390,  20  Am.  Rep.  50. 

Of  Legislative  Power.  It  is  the  general 
rule  that  legislative  power  cannot  be  dele- 
gated by  the  legislature  to  any  other  body 
or  authority;  Brewer  Brick  Co.  v.  Brewer, 
62  Me.  62,  16  Am.  Rep.  395;  Farnsworth 
Co.  v.  Lisbon,  62  Me.  451 ;  Willis  v.  Owen, 
43  Tex.  41;  Appeal  of  Locke,  72  Pa.  491, 
13  Am.  Rep.  716;  State  v.  Wilcox,  45  Mo. 
458;  State  v.  Parker,  26  Vt.  362;  Rice  v. 
Foster,  4  Harring.  (Del.)  479;  Barto  v. 
Himrod,  8  N.  Y.  483,  59  Am.  Dec.  506; 
Cooley,  Const.  Lim.  141;  U.  S.  v.  Bridge  Co., 
45  Fed.  178;  City  of  St.  Joseph  v.  Wilshire, 
47  Mo.  App.  125;  see  Marshall  Field  &  Co. 
v.  Clark,  143  U.  S.  649,  12  Sup.  Ct.  495, 
36  L  Ed.  294;  but  the  taking  effect  of  a 
statute  may  be  made  to  depend  upon  some 
subsequent  event;  The  Aurora  v.  U.  S.,  7 
Cra.  (U.  S.)  3S2,  3  L.  Ed.  378;  Mayor,  etc., 
of  Baltimore  v.  Clunet,  23  Md.  449;  Lothrop 
v.  Stedman,  42  Conn.  583,  Fed.  Cas.  No. 
S.519. 

It  has  often  been  said  that  it  is  elemen- 
tary law  that  legislative  power  cannot  be  del- 
egated. The  difficulty  is  in  determining  what 
authority  or  discretion  may  be  conferred  on 
a  body  other  than  the  legislature  without 


DELEGATION 


821 


DELEGATION 


contravening  constitutional  principle.  The 
general  question  was  the  subject  of  extended 
discussion  in  a  case  sustaining  the  validity 
of  an  act  conferring  upon  railroad  commis- 
sioners the  power  to  determine  what  are 
reasonable  rates  for  transportation ;  State  v. 
By.  Co.,  38  Minn.  281,  37  N.  W.  782. 

In  that  case  the  court  quotes  from  a  previous  de- 
cision (State  v.  Young,  29  Minn.  474,  9  N.  W.  737)  the 
general  rule  against  the  delegation  of  legislative 
power,  as  requiring  the  legislature  to  pass  upon  two 
things,  the  authority  to  make,  and  the  exi> 
of,  the  enactment.  The  court  then  proceeds  to  lay 
down  a  limitation  for  the  rule  growing  out  of  the 
necessity  of  the  exercise  of  discretion  and  judgment 
In  the  exercise  of  certain  powers.  Attention  is  di- 
rected to  the  difficulty  in  many  cases  of  discriminat- 
ing between  what  is  properly  legislative  and  what 
may  be  executive  or  administrative  duty,  and  it  is 
said  that,  while  still  recognizing  the  difference  be- 
tween the  departments  of  government,  "the  maker 
of  the  law  may  commit  something  to  the  discretion 
of  the  other  departments,  and  the  precise  boundary 
of  this  power  is  a  subject  of  delicate  and  difficult 
Inquiry  into  which  a  court  will  not  necessarily  en- 
ter. Wayman  v.  Southard,  10  Wheat.  (U.  S.)  1,  46, 
6  L.  Ed.  253.  The  principle  is  repeatedly  recognized 
by  all  courts  that  the  legislature  may  authorize  oth- 
ers to  do  things  which  it  might  properly,  but  can- 
not conveniently  or  advantageously,  do  itself.  All 
laws  are  carried  into  execution  by  officers  appointed 
for  the  purpose  ;  some  with  more,  others  with  less, 
but  all  clothed  with  power  sufficient  for  the  efficient 
execution  of  the  law.  These  powers  often  necessa- 
rily involve  in  a  large  degree  the  exercise  of  discre- 
tion and  judgment  even  to  the  extent  of  investigat- 
ing and  determining  the  facts,  and  acting  upon  and 
In  accordance  with  the  facts  as  thus  found.  In  fact, 
this  must  be  so,  if  the  legislature  is  to  be  permitted 
effectually  to  exercise  its  constitutional  powers. 
If  this  was  not  permissible,  the  wheels  of  govern- 
ment would  often  be  blocked  and  the  sovereign 
state  find  itself  hopelessly  entangled  In  the  meshes 
of  Its  own  constitution."  A  number  of  examples 
are  given  of  statutes  granting  discretionary  powers 
to  officers  charged  with  the  execution  of  the  l.iws  ; 
power  given  to  boards  in  control  of  public  institu- 
tions to  make  contracts,  adopt  rules,  etc.;  the  as- 
sessment of  property  for  the  purpose  of  taxation; 
the  exercise  of  the  police  power  in  requiring  and 
granting  licenses,  and  the  conclusion  is  stated  in 
the    exact    words    of    Judge    Ranney,    quoted    infra. 

The  decision  of  the  Minnesota  case  was  reversed 
upon  grounds  not  affecting  this  general  statement  of 
the  doctrine  of  the  delegation  of  legislative  power ; 
Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Minnesota,  134  U. 
S.  418,  10  Sup.  Ct.  462,  702,  33  L.  Ed.  970. 

This  question  was  elaborately  considered 
by  the  supreme  court  in  Marshall  Field  & 
Co.  v.  Clark,  143  U.  S.  649,  12  Sup.  Ct.  495, 
36  L.  Ed.  294.  In  this  case  it  was  held  (hat 
the  authority  conferred  by  a  tariff  act  upon 
the  president  to  suspend  by  proclamation 
the  free  introduction  of  sugar,  etc.,  when  he 
should  be  satisfied  that  any  country  produc- 
ing such  articles  imposed  duties  or  other 
exactions  upon  agricultural  or  other  products 
of  the  United  States,  did  not  conflict  with 
the  recognized  principle  that  congress  could 
not  delegate  its  legislative  power  to  the  pres- 
ident. The  law  was  complete  when  it  was 
declared  that  the  suspension  should  take  ef- 
fect upon  a  named  contingency,  the  presi- 
dent was  the  mere  agent  to  ascertain  the 
event  upon  which  the  legislative  will  was 
to  take  effect.  The  court  quotes  with  ap- 
proval the  language,  often  cited,  of  Ranney, 


J.,  In  Cincinnati,  W.  &  Z.  R.  Co.  v.  County 
Com'rs,  1  Ohio  St  88:  The  true  distinc- 
tion is  between  the  delegation  of  power  to 
make  the  law,  which  necessarily  involves  a 
discretion  as  to  what  it  shall  be,  and  con- 
ferring authority  or 

cution,  to  be  exercised  under  and  in  pursu- 
ance of  the  law.     The  first  cannot  be 
to  the  latter  no  valid  objection  can  be  no 
Two    Pennsylvania    cases    are    quoted    with 
approval  as  follows:    "Hall  the  statu- 
our  books  are  in  the  alternative,  depending 
on  the  discretion  of  some  person  or  pi 
to  whom   Lb  confided  the  duty  of  determin- 
ing whether  the  proper  occasion  exisi 
executing  them.     But  it  cannot  he  said  that 
erdse  of  such  discretion  is  the  making 
of  the  law."     Moors  v.  <  ity  of  Reading,  2] 
Pa.  188,  202.    "To  assert  that  a  Law  i 
than   a   law,   because   it    is   made   to  <J» •; >*-i n I 
on  a  future  event  or  act,  is  to  rob  the  tegis 
lature  of  the  power  to   act  wisely   for   the 
public  welfare  whenever  a  law  is  pass  id   re- 
lating to  a  state  of  affairs  not  yet  developed, 
or  to  things  future  and   Impossible  to  fully 
know."     The  proper   distinction,   the  court 
said,  was  this:     "The  legislature  cannot  del- 
egate its  power  to   make  a   law;   but   it   can 
make  a   law    to  a    power    to   deter- 

mine some  fact  or  state  of  things  upon 
which  the  law  makes,  or  intends  to  make. 
its  own  action  depend.  To  deny  this  would 
be  to  stop  the  wheels  of  government.  There 
are  many  things  upon  which  wise  and  useful 
Legislation  must  depend  which  cannot  be 
known  to  the  law-making  power,  and  must, 
therefore,  be  subject  to  inquiry  and  deter- 
mination outside  of  the  halls  of  legislation." 
Appeal  of  Locke,  72  Pa.  491,  49S,  13  Am. 
Rep.  716. 

While  it  is  difficult  to  define  the  line  which 
separates  legislative  power  to  make  laws  and 
and  administrative  authority  to  make  regula- 
tions, congress  may  delegate  power  to  fill  up 
details  where  it  has  indicated  its  will  in  the 
statute,  and  it  may  make  violations  of 
regulations  punishable  as  indicated  in  the 
Statute.  Regulations  of  the  secretary  of  ag- 
riculture as  to  gra/.ing  sheep  on  fore 
serves  have  the  force  of  law;  and  violation 
thereof  is  punishable  under  R.  S, 
U.  S.  v.  Grimaud.  220  l'.  S.  506,  31  Sup.  Ct 
480,  55  L.  Ed  563.  The  authority  given  by 
congress  to  the  secretary  of  war  to  prescribe 
rules  and  regulations  for  the  use,  adminis- 
tration, and  control  of  canals,  etc..  owned  ox 
operated  by  the  United  states,  is  held  not  to 
be  a  delegation  of  legislative  power,  and  rules 
made  pursuant  thereto  have  the  force  of 
law:  r.  s.  v.  Ormsbee,  71  Fed.  -<)7.  So  au- 
thority given  to  the  same  officer  to  decide  as 
to  whether  bridges  over  navigable  rivers  in- 
terfere with  navigation  is  not  a  delegation 
of  Legislative  power:  Union  Bridge  Co.  v.  (J. 
s.,  -Jul  r.  s.  364,  27  Sup.  Ct  367,  51  I..  Ed. 
523;  r.  S.  v.  Citj  of  Moiine,  82  Fed.  592; 
and  see  Miller  v.  New  York,  109  U.  S.  385, 


DELEGATION 


822 


DELEGATION 


3  Sup.  Ct.  22S,  2T  L.  Ed.  971 ;  nor  is  the  de- 
termination of  the  treasury  department  of 
standards  of  teas  that  may  be  imported; 
Buttfield  v.  Stranahan,  192  U.  S.  470,  24  Sup. 
Ct  349,  48  L.  Ed.  525.  Congress  may  con- 
fer upon  the  department  of  commerce  and  la- 
bor the  power  to  determine  the  right  of  a 
Chinese  person  to  enter  the  United  States 
and  may  make  the  decision  of  that  depart- 
ment conclusive  on  the  federal  courts  in  ha- 
beas corpus  proceedings  even  where  citizen- 
ship is  the  ground  on  which  the  right  of  en- 
try is  claimed;  U.  S.  v.  Ju  Toy,  19S  U.  S. 
253,  25  Sup.  Ct.  644,  49  L.  Ed.  1040. 

Where  the  decision  of  questions  of  fact  is 
committed  by  congress  to  the  judgment  of 
the  head  of  a  department,  his  decision  is 
conclusive ;  and  even  upon  mixed  questions 
of  law  and  fact,  or  of  law  alone,  there  is  a 
strong  presumption  of  its  correctness  and 
the  courts  will  not  ordinarily  review  it,  al- 
though they  may  occasionally  do  so ;    Bates 

6  Guild  Co.  v.  Payne,  194  U.  S.  106,  24  Sup. 
Ct.  595,  48  L.  Ed.  894,  where  the  court  re- 
fused to  interfere  with  the  decision  of  the 
postmaster  general  as  to  the  postal  rates  to 
be  charged  on  a  certain  publication.  The 
findings  of  the  land  department  are  treated 
by  the  courts  as  conclusive,  though  such  pro- 
ceedings involve,  to  a  certain  extent,  the  ex- 
ercise of  judicial  power ;  Burfenniug  v.  R. 
Co.,  163  U.  S.  321,  16  Sup.  Ct.  1018,  41  L.  Ed. 
175 ;  Johnson  v.  Drew,  171  U.  S.  93,  18  Sup. 
Ct.  800,  43  L.  Ed.  88.  And  since  the  land 
department  is  constituted  a  special  tribunal 
with  judicial  functions,  neither  injunction 
nor  mandamus  will  lie  against  an  officer  of 
that  department  to  control  him  in  discharg- 
ing an  official  duty  requiring  the  exercise  of 
his  judgment  and  discretion ;  U.  S.  v.  Hitch- 
cock, 190  U.  S.  316,  23  Sup.  Ct.  698,  47  L. 
Ed.  1074,  citing  Marquez  v.  Frisbie,  101  U. 
S.  473,  25  L.  Ed.  800;  Gaines  v.  Thompson, 

7  Wall.  (U.  S.)  347,  19  L.  Ed.  62;  U.  S.  v. 
Black,  128  U.  S.  40,  9  Sup.  Ct.  12,  32  L.  Ed. 
354 ;  U.  S.  v.  Windom,  137  U.  S.  636,  11  Sup. 
Ct.  197,  34  L.  Ed.  811. 

There  seems  to  be  a  presumption  that  of- 
ficers of  state  making  rules  under  statutory 
powers  have  not  exceeded  their  authority ; 
Lord  Esher  in   (1887)  18  Q.  B.  Div.  383,  400. 

The  legislature  may  confer  upon  commis- 
sions the  power  to  determine  for  what  pur- 
poses, and  upon  what  terms,  conditions,  and 
limitations,  an  increase  of  capital  stock  may 
be  made  by  railroad  corporations ;  State  v. 
Ry.  Co.,  100  Minn.  445,  111  N.  W.  289,  10 
L.  R.  A.  (N.  S.)  250.  It  may  not  authorize 
such  commission  to  allow  an  increase  of  cap- 
ital stock  for  such  purposes  and  on  such 
terms  as  it  may  deem  advisable,  or  in  its 
discretion  to  refuse  it;  this  being  an  attempt 
to  delegate  legislative  power ;  id. 

It  may  provide,  in  appeals  from  orders 
of  the  state  railroad  commission,  that  the 
burden  of  proof  shall  rest  upon  the  party 
seeking  to  set  aside  the  decision  of  the  com- 


missioners of  showing  that  the  order  is 
unreasonable  and  unjust,  and  that  the  record 
shall  be  prima  facie  evidence  that  the  order 
is  just  and  reasonable;  Chicago,  R.  I.  &  P. 
R.  Co.  v.  Ry.  Commission,  85  Neb.  818,  124 
N.  W.  477,  26  L.  R.  A.   (N.  S.)   444. 

It  may  enact  a  law,  complete  in  itself,  de- 
signed to  accomplish  a  general  public  pur- 
pose, and  may  expressly  authorize  designated 
officials,  within  definite  valid  limitations  to 
provide  rules  and  regulations  for  the  com- 
plete operation  and  enforcement  of  the  law 
wilhin  its  expressed  general  purpose ;  State 
v.  R.  Co.,  56  Fla.  617,  47  South.  969,  32  L. 
R.  A.    (N.   S.)   639. 

The  legislature  may  confer  upon  the  state 
auditor  the  right  to  issue  licenses  for  book- 
making  on  horse  races  to  persons  of  good 
character ;  State  v.  Williams,  160  Mo.  333,  60 
S.  W.  1077;  may  require  consent  of  park 
commissioners  for  orations  in  a  park ;  Com. 
v.  Abrahams,  156  Mass.  57,  30  N.  E.  79;  or 
of  a  city  committee  for  orations  on  a  com- 
mon; Com.  v.  Davis,  140  Mass.  485,  4  N.  E. 
577 ;  or  of  the  clerk  of  a  market  for  the  use 
of  a  stand  on  the  street;  In  re  Nightingale, 
11  Pick.  (Mass.)  16S ;  may  require  a  permit 
in  writing  from  the  board  of  health  to  keep 
swine;  Inhabitants  of  Quincy  v.  Kennard, 
151  Mass.  563,  24  N.  E.  860;  or  from  the  com- 
missioners of  the  town  to  erect  wooden 
buildings ;  Commissioners  of  Easton  v.  Cov- 
ey, 74  Md.  262,  22  Atl.  266 ;  or  from  the  pres- 
ident of  the  board  of  trustees  of  a  munici- 
pality to  beat  drums  in  the  travelled  streets 
of  a  city;  In  re  Flaherty, - 105  Cal.  558,  38 
Pac.  981,  27  L.  R.  A.  529.  A  commission  may 
be  authorized  to  select  and  adopt  a  uniform 
series  of  text-books  for  the  schools  of  a 
state;  Leeper  v.  State,  103  Tenn.  500,  53  S. 
W.  962,  48  L.  R.  A.  167 ;  or  voting  machines 
for  use  in  elections;  Elwell  v.  Comstock,  99 
Minn.  261,  109  N.  W.  113,  698,  7  L.  R.  A. 
(N.  S.)  621,  9  Ann.  Cas.  270;  The  McTam- 
many  Voting  Machine,  23  R.  I.  630,  50  Atl. 
265;  City  of  Detroit  v.  Board  of  Inspectors 
of  Election,  139  Mich.  548,  102  N.  W.  1029, 
69  L.  R.  A.  184,  111  Am.  St.  Rep.  430;  Lynch 
v.  Malley,  215  111.  574,  74  N.  E.  723,  2  Ann. 
Cas.  S37 ;  Opinion  of  Justices  to  House  of 
Representatives,  178  Mass.  605,  60  N.  E. 
129,  54  L.  R.  A.  430  (by  a  divided  court). 
A  statute  authorizing  measures  preventive 
of  smallpox  confers  authority  upon  a  board 
to  compel  vaccination  during  an  epidemic; 
Blue  v.  Beach,  155  Ind.  121,  56  N.  E.  89,  50 
L.  R.  A.  64,  80  Am.  St.  Rep.  195;  and  one 
giving  general  sanitary  power  authorizes  a 
board  to  keep  adulterated  milk  out  of  a  city; 
Polinsky  v.  People,  73  N.  Y.  65. 

A  provision  that  a  boiler  inspector's  act 
shall  not  apply  to  boilers  inspected  by  in- 
surance companies  and  certified  by  their  au- 
thorized inspectors  to  be  safe;  State  v.  Mc- 
Mahon,  65  Minn.  453,  68  N.  .W.  77 ;  and  an 
act   providing   that   hogs   shall   not   run    at 


DELEGATION 


823 


DEI.; 


large  In  a  county,  if  the  county  courts  on 
petition  of  voters  direct  that  the  act  be  en- 
forced therein;  Baigh  V.  Bell,  41  \Y.  Va.  l'J, 
23  S.  B.  666,  31  L.  R.  A.  131;  are  valid. 

Acts  held  not  to  be  a  delegation  of  legis- 
lative power  and  therefore  valid,  are  author- 
izing the  fish  commissioners  to  give  permits 
to  take  fish  for  propagation  at  times  aud  by 
methods  otherwise  prohibited;  People  v. 
Brooks,  101  Mich.  98,  68  N.  W.  Ill;  requir- 
ing carriers  of  passengers  to  furnish  their 
agents  with  certificates  of  authority  to  sell 

tickets,  on  which  a  license  shall  he  issued 
by  the  state:  State  v.  Corhett.  ".7  Minn.  .".IT, 
.".!>  x.  \v.  :;i7.  L'l  L.  EL  a.  498;  authorizing 
a  court  to  issue  certificates  of  incorporation 
to  municipalities;  in  re  Town  of  t  Dion 
Mines.  .::)  W.  Va.  179,  19  S.  E.  398;  permit- 
ting the  board  of  supervisors  of  counties 
to  determine  whether  a  county  shall  come 
within  or  remain  without  the  provisions  of 
an  act  to  establish  law  libraries;  Board  Of 
Law  Library  Trustees  v.  Board  of  Super- 
visors, 99  Cal.  571,  34  Atl.  244;  providing 
that  an  act  in  relation  to  public  roads  shall 
not  go  into  effect  until  recommended  by  the 
grand  jury;  Haney  v.  Bartow  County  Com'rs, 
91  Ga.  770,  18  S.  E.  28 ;  authorizing  railroad 
and  warehouse  commissioners  to  make  a 
schedule  of  a  maximum  rate  of  charges  for 
each  railroad  company  in  the  state;  Chicago, 
B.  &  Q.  R.  Co.  v.  Jones,  149  111.  361,  ■■'  N. 
E.  247,  24  L.  R.  A.  141,  41  Am.  St.  Rep.  278 ; 
authorizing  the  union  of  two  railroad  com- 
panies and  that  the  united  company  may  dis- 
continue such  operations  of  the  road  as  the 
directors  deem  necessary;  Farnum  v.  R.  K., 
66  N.  H.  569,  29  Atl.  541;  authorizing  rail- 
road commissioners  to  regulate  freights; 
Georgia  R.  K.  v.  Smith,  70  Ga.  6!H ;  or  to 
make  reasonable  regulations  for  the  preven- 
tion of  excessive  charges  and  unjust  discrim- 
ination ;  Atlantic  Exp.  Co.  v.  R.  Co.,  Ill  N.  C. 
463,  16  S.  E.  393,  18  L.  R.  A.  393,  32  Am.  St. 
Rep.  805;  or  to  fix  rates;  Michigan  Cent.  K. 
Co.  v.  Railroad  Commission,  100  Mich.  355, 
liT.  \.  \V.  548;  Oregon  R.  &  Nav.  Co.  v. 
Campbell,  173  Fed.  957;  Southern  Indiana 
Ry.  Co.  v.  Railroad  Commission,  17L'  ind. 
113,  87  N.  E.  900;  Trustees  of  Village  of 
Saratoga  Springs  v.  Power  Co.,  191  N.  Y. 
123,  83  N.  E.  693,  18  L.  R.  A.  (N.  S.)  713; 
or  to  order  a  company  to  remove  grade 
crossings  and  on  its  failure  to  do  so  to  de- 
termine the  portion  of  the  expense  thereof 
which  is  to  be  paid  by  the  company;  Appeal 
of  New  York  &  N.  E.  R.  Co.,  62  Conn.  r,lj7. 
26  Atl.  122;  to  provide  that  the  mayors  of 
cities  of  a  certain  class  may  be  elected  by 
the  people  or  appointed  by  the  council  as 
provided  by  ordinance;  Brown  v.  Holland,  30 
S.  \Y.  629,  17  Ky.  L.  Rep.  II!';  to  authorize 
park  commissioners  to  determine  where  and 
of  what  material  sidewalks  and  mad  beds 
shall  be  constructed;  Turner  v.  City  of  De- 
troit, 104  Mich.  326,  62  N.  \Y.  405;  to  au- 
thorize  a   state   medical    board    to    exercise 


powers    of  ion     ami    examination; 

France  v.  State,     i  >t.  l,  47  N.  M.  1041, 

38  Ohio  L.  J.  u:;:». 

A    legislative    body    n  :te   to    an 

official  the  power  to  i;t.,; 
tion  on   which  the  operation  of   tin-    . 
conditioned   and   to   i 
lations  for  enforcing  the  ad ;  St  I 
chants'  Bridge  Terminal  R,  Co.  v.  t  . 
Fed.  191,   1 1"  •'.  c.  a.  63  i.    it 

cannot  delegate  its  lawmaking  •!•  its 

indispensable   discretion    to    i  |    stat- 

ute; id. 

Statutes  declaring  that  railroad  rat- 
service  shall   ]<>•  reasonable,  and  creating  a 
commission  with  power  to  Invests 
Log   rates  and   service,  and  to  fix  and   i 
mine  what   rates  and   what  Bervice  are   rea- 
sonable,  the  statute  then   providing   that    the 
rates  and  service  so  fixed  shall  he  in  force. 
have  bc.n   generally  upheld,  as  a  valid  ex- 
ercise   of    the    legislative    power;     S  one    v. 
Trust  Co..  11«:  C.  s.  307,  0  Sup.  ('t.  334 

1191,  L'!>  L.  Ed.  636;    Reagan  v. 

154   C   s.  362,  it   Sup.  <'t.  1047,  88  L.  Ed. 

101  I:    Georgia  R.   It.  v.  Smith.  7<i  6a 

Chicago,  B.  &  Q.  R.  Co.  v.  Jones,  l  |;i  111.  361, 

.:7    X.    E.    247,    21    L.    R.   A.    141.    41    Am.    St. 

Rep.  27S;   Hopper   v.  Ry.   Co.,   91    la.   6 

N.   W.   487;     State   v.    R.    (',,..    BO    Minn.    101, 

83  N.  W.  60,  89  Am.  St.  Rep.  514;    Railroad 

Commission  of  Texas  v.  Ry.  Co.,  '."»  Tex.  340, 
38  S.  W.  750;  Michigan  Cent.  R.  Co.  v.  Kail- 
road  Commission,  100  Mich.  355,  125  N.  W. 
549. 

The  legislature  may  declare  the  general 
rule  of  law  to  be  in  force  and  take  effect 
upon  the  subsequent  establishment  of  the 
facts  necessary  to  make  it  operative,  or  to 
call  for  its  application,  as  the  bankruptcy 
law  of  the  United  States  with  referei 
legislative  action  regarding  exemption  laws 
existing  or  to  he  thereafter  enacted;  Han- 
over Xat.  Bank  v.  Moyses,  1*-''.  D.  s.  181,  22 
Sup.  Ct  857,  46  L.  Ed.  L113;  or  a  law  may 
he  made  to  take  effect  conditionally,  depend- 
ing upon  the  action  of  the  legislature  of  an- 
other state  fixing  the  amount  to  be  enacted; 
Phoenix  Ins.  Co.  of  New  York  v.  Webb.  29 
Kan.  672;  or  it  may  be  conditioned  upon  the 
Legislative  act  of  a  city  council;  Adams  v. 
City  of  Beloit,  105  Wis.  363,  81  N.  W.  869, 
47  L.  R.  A.  441;  or  upon  action  of  t; 
ecu  five;  In  re  Griner,  16  Wis.  424;  Mar- 
shall Field  &  Co.  v.  Clark.  14::  D.  S.  649,  1L' 
Sup.  Ct.  495,  ::»;  l.  Ed  294;  or  upon  judicial 
action  Involving  the  determination  of  ques- 
tions of  fact  ;  In  re  Incorporation  of  Village 
Of  North  Milwaukee.  93  Wis.  616,  67  N.  W. 
1033,  33  L.  R.  A.  638;  or  upon  administra- 
tive action;  state  v.  Burdge,  95  Wis.  390, 
70  X.  W.  :;i7.  .".7  I..  R,  A.  157,  60  Am.  St. 
Rep.  123;  or  upon  a  declaration  of  fact  or 
the  creation  of  a  condition  by  vote  of  the 
electors  of  a  municipality:  State  v.  1  linked. 
131  Wis.  103,  111   X.  W.  L'17. 

Authority   to  transfer  cases  pending  in  a 


DELEGATION 


824 


DELEGATION 


territorial  court  to  the  federal  courts  may 
be  delegated  to  a  constitutional  convention, 
upon  the  admission  of  the  territory  as  a 
state ;   Hecht  v.  Metzler,  82  Fed.  340. 

Acts  held  invalid  as  an  improper  delega- 
tion by  the  legislature  of  the  police  power 
are :  An  act  directing  the  insurance  com- 
missioner to  prescribe  a  standard  policy  and 
forbidding  the  use  of  any  other;  O'Neil  v. 
Ins.  Co.,  166  Pa.  72,  30  Atl.  943,  26  L.  R.  A. 
715,  45  Am.  St.  Rep.  650;  acts  authorizing 
insurance  commissioners  to  adopt  a  printed 
form  of  fire  policy  with  conditions  indorsed 
thereon,  which,  as  nearly  as  possible,  in 
type  and  form  shall  conform  to  that  adopted 
by  another  state;  Dowling  v.  Ins.  Co.,  92 
'Wis.  63,  65  N.  W.  738,  31  L.  R.  A.  112 ;  An- 
derson v.  Fire  Assur.  Co.,  59  Minn.  182,  60  N. 
W.  1095,  63  N.  W.  241,  28  L.  R.  A.  609,  50 
Am.  St.  Rep.  400,  in  which  it  was  admitted 
that  an  act  similar  to  that  of  Pennsylvania 
would  be  invalid,  but  it  was  unsuccessfully 
contended  that  the  legislative  direction  to 
conform  as  nearly  as  possible  to  a  specified 
policy  would  take  the  case  out  of  the  prin- 
ciple laid  down  by  the  Pennsylvania  court. 
So  also  was  an  act  permitting  a  justice  to 
put  a  person  charged  with  drunkenness  as 
a  disorderly  person  under  recognizance  to 
take  the  treatment  of  a  private  corporation 
administering  a  cure  for  drunkenness,  and 
providing  that  on  reports  showing  compli- 
ance, he  should  be  acquitted  and  discharg- 
ed; Senate  of  Happy  Home  Clubs  v.  Board 
of  Supervisors,  99  Mich.  117,  57  N.  W.  1101, 
23  L.  R.  A.  144. 

A  law  providing  for  the  adjustment  of 
state  bonds,  and  authorizing  judges  to  de- 
cide which  of  two  sections  of  the  act  should 
take  effect,  gives  them  legislative  power 
and  is  void ;  State  v.  Young,  29  Minn.  474, 
9  N.  W.  737 ;  in  this  case  the  subject  was 
very  elaborately  argued,  and  the  distinction 
between  legislative  and  judicial  power  is 
very  clearly  stated  by  the  court.     See  supra. 

The  legislature  cannot  leave  to  commis- 
sioners the  power  to  decide  in  what  pro- 
portion the  expense  of  laying  out  and  open- 
ing a  public  avenue  should  be  imposed  on 
townships  of  a  county,  or  wards  of  a  city; 
State  v.  County  Com'rs,  37  N.  J.  L.  12. 

The  legislature  may  not  delegate  the  pow- 
er to  make  a  law  prescribing  a  penalty,  but 
it  is  competent  for  the  legislature  to  au- 
thorize the  railroad  commission  to  prescribe 
duties  upon  which  the  law  may  operate  in 
imposing  a  penalty  and  in  effectuating  the 
purpose  designed  in  enacting  the  law. 
Where  a  penalty  is  imposed  by  law,  it  may 
be  incurred  for  the  penal  violation  of  a  rule 
prescribed  by  the. railroad  commission  with- 
in their  express  authority;  State  v.  R.  Co., 
56  Fla.  617,  47  South.  969,  32  L.  R.  A.  (N.  S.) 
639,  where  the  commissioners  adopted  a  rule 
that  all  railroads  would  be  liable  to  the 
shipper  to  a  charge  of  $1  per  day  for  detain- 
ing cars.     Such  a   charge  was  held   not  a 


penalty,  but  a  monetary  obligation  incurred 
for  breach  of  duty  that  may  be  enforced  by 
the  shipper. 

Congress  may  not  delegate  its  general  leg- 
islative power  to  the  District  of  Columbia ; 
Stoutenburgh  v.  Hennick,  129  U.  S.  141,  9 
Sup.  Ct  256,  32  L.  Ed.  637 ;  nor  its  purely 
legislative  power  to  a  commission,  but,  hav- 
ing laid  down  the  general  rules  of  action 
under  which  a  commission  shall  proceed,  it 
may  require  of  that  commission  the  applica- 
tion of  such  rules  to  particular  situations 
and  the  investigation  of  facts  with  a  view 
to  making  orders  in  a  particular  matter 
within  the  rules  laid  down  by  the  congress; 
Interstate  Commerce  Commission  v.  Tran- 
sit Co.,  224  U.  S.  215,  32  Sup.  Ct.  436,  56 
L.  Ed.  729,  citing  Buttfield  v.  Stranahan,  192 
U.  S.  470,  24  Sup.  Ct.  349,  48  L.  Ed.  525; 
Union  Bridge  Co.  v.  U.  S.,  204  U.  S.  364,  27 
Sup.  Ct.  367,  51  L.  Ed.  523 ;  U.  S.  v.  Grim- 
aud,  220  U.  S.  506,  31  Sup.  Ct  480,  55  L.  Ed. 
563. 

Leaving  to  the  interstate  commerce  com- 
mission the  carrying  out  of  details  in  the 
exercise  of  its  discretion  is  not  a  delega- 
tion of  legislative  authority ;  Interstate 
Commerce  Commission  v.  Transit  Co.,  224 
U.  S.  194,  32  Sup.  Ct.  436,  56  L.  Ed.  729. 
The  commission  may  require  common  car- 
riers to  adopt  a  uniform  system  of  account- 
ing and  bookkeeping  and  to  make  annual 
reports  embracing  not  only  their  joint  rail 
and  water  business,  but  the  other  business 
of  the  carriers  as  well,  such  as  their  port 
to  port  business,  both  intrastate  and  inter- 
state, and  the  business  of  operating  amuse- 
ment parks ;  Interstate  Commerce  Commis- 
sion v.  Transit  Co.,  224  U.  S.  194,  32  Sup. 
Ct.  436,  56  L.  Ed.  729. 

It  is  said  that  the  power  vested  in  boards 
of  health  to  forbid  by  general  regulations 
the  exercise  within  their  respective  towns 
of  any  trade  which  is  a  nuisance  is  in  its 
nature  quasi-judicial.  Its  exercise  requires 
the  officers  charged  with  the  duty  to  use 
their  discretion  and  judgment  in  adjudi- 
cating on  the  subject-matter.  This  is  the 
decisive  test  that  the  authority  vested  in 
them  is  judicial  and  not  ministerial  merely; 
Belcher  v.  Farrar,  8  Allen  (Mass.)  325.  In 
Nelson  v.  State  Board  of  Health,  186  Mass. 
330,  71  N.  E.  693,  it  is  said  there  are  two 
classes  of  regulations — the  general  and  the 
special.  The  general  regulations  are  said 
to  be  quasi-legislative,  while  those  regard- 
ing a  particular  case  are  termed  quasi-ju- 
dicial. Where  commissioners  determined 
that  sawdust  from  a  particular  mill  might 
not  be  discharged  into  a  stream  because  of 
injury  to  fish  therein,  the  court  held  the 
commissioners'  order  to  be  a  legislative  one 
and  so  valid  without  notice  or  hearing;  Com. 
v.  Sisson,  189  Mass.  247,  75  N.  E.  619,  1  L. 
R.  A.  (N.  S.)  752,  109  Am.  St.  Rep.  630. 
Since  the  decision  in  this  case,  a  Massachu- 
setts Act  requires  commissioners  before  mak- 


DELEGATION 


825 


DELIBERATION 


Ing  an  order  forbidding  the  discharge  of 
sawdust  into  a  stream,  to  give  notice  there- 
of and  a  hearing  thereon  and  giving  to  per- 
sons aggrieved  thereby  a  right  of  appeal  to 
the  superior  court  sitting  in  equity.  See  20 
Harv.  L.  R.  116,  wbere  the  query  is  made: 
Have  the  commissioners  become  judicial 
since  the  passage  of  the  Act? 

Power  may  be  conferred  upon  a  state  of- 
ficer, as  such,  to  execute  a  duty  imposed  un- 
der an  act  of  congress;  Dallemagne  v.  Mol- 
san,  197  U.  S.  169,  25  Sup.  Ct.  422,  49  L.  Ed. 
709. 

The  legislature  may  delegate  to  a  com- 
mission the  power  to  determine  the  bound- 
aries of  the  sections  of  a  city  in  which  build- 
ings of  different  heights  as  determined  by 
the  legislature  shall  be  erected  :  Welch  v. 
Swasov,  193  Mass.  364,  70  N.  B.  745,  US  Am. 
St.  Rep.  523,  23  L.  R.  A.  (X.  S.)  1160;  it 
may  confer  upon  examining  boards  appoint- 
ed by  the  mayors  in  certain  cities  In  the 
state,  the  power  to  examine  plumbers  as  to 
their  fitness;  People  v.  Warden  of  City  Pris- 
on, 144  N.  Y.  529.  39  N.  E.  6S6,  27  L.  R.  A. 
718;  but  it  cannot  delegate  to  a  board  au- 
thority to  require  a  knowledge  of  embalm- 
ing as  a  condition  to  receiving  an  under- 
taker's license;  Wyeth  v.  Board  of  Health, 
200  Mass.  474,  86  N.  E.  925,  128  Am.  St.  Rep. 
439,  23  L.  R.  A.  (N.  S.)  147.  See  Municipal 
Corporation. 

It  may  empower  the  courts  on  the  appli- 
cation of  local  authorities  and,  after  notice 
to  railway  companies,  to  order  that  gates  be 
erected  at  the  intersection  of  a  railroad  and 
a  street ;  People  v.  R.  Co.,  134  N.  Y.  506,  31 
N.  E.  873. 

Sir  F.  Pollock  (First  Book  of  Jurisp.  244) 
points  out  the  difference  in  constitutional 
law  between  delegated  and  devolved,  apply- 
ing the  latter  term,  for  instance,  to  the  pow- 
ers given  by  parliament  to  the  legislatures 
of  British  colonies  which  are  plenary  within 
the  appointed  limits,  such  a  legislature  not 
being  "a  mere  delegate  or  agent  of  the  im- 
perial parliament." 

As  to  the  delegation  of  power  by  directors 
of  a  corporation  to  an  executive  committee. 
or  of  a  bank  to  its  executive  officers,  see 
Directors  ;  National  Bank  ;  Officer  ; 
Cashier. 

As  to  the  delegation  of  legislative  power  in 
the  government  of  the  Phillipine  Islands,  see 

PlIILLIPINES. 

As  to  questions  relating  to  the  submission 
of  legislation  to  a  popular  vote,  Bee  Legis- 
lative Power,  and  see  also  Initiative,  Ref- 
erendum, and  Recall. 

DELESTAGE.  In  French  Marine  Law. 
A  discharging  of  ballast  from  a  vessel. 

DELIBERATE.  To  examine,  to  consult, 
in  order  to  form  an  opinion.  Thus,  a  jury 
deliberate  as  to  their  verdict. 

DELIBERATION.  The  act  of  the  under- 
standing by  which  a  party  examines  wheth- 


er a  thing  proposed  ought  to  be  done  or 
not  to  be  done,  or  whether  it  ought  to  be 
done  in  one  manner  or  another. 

The  deliberation  relates  to  the  end  pro- 
posed, to  the  means  of  accomplishim:  that 
end,  or  to  both.  It  is  a  presumption  <>f  law 
that  all  acts  are  done  with  due  dell 
tion, — that  the  party  Intended  to  do  what  be 
has  done.  But  he  may  show  the  contrary. 
In  contracts,  for  example,  he  may  show  that 
he  has  been  taken   by   surp.  d    when 

a  criminal  act  is  charged,  he  may  prove 
that  it  was  an  accident  and  not  with  delib- 
eration,— that,  in  fact,  there  was  no  inten- 
tion or  will.     See  18  Am.  Dec.  778,  n. 

By  the  use  of  this  word  in  describing  the 
crime  of  murder  In  the  first  degree,  the  idea 
is  conveyed  that  the  perpetrator  weighs  : 
motives  for  the  act,  and  its  consequeno 
the  nature  «>f  the  crime,  or  other  things  con- 
nected  with  his  intentions,  with  a   view  to 
a    decision   thereon,   that    he  carefully    con- 
siders all  these,  and  the  act  is  not  suddenly 
committed;    State  v.  Boyle,  28  la.  524.     B 
state  v.   Wieners.   66   Mo.  13;    Nye  v.  Peo- 
ple. :;."»  Mich.  16;  Intent;  Mubobb;  Mu.i 
Cooling  Time;    Will. 

In  Legislation.  Counsel  or  consultation 
touching  some  business  in  an  assembly  hav- 
ing the  power  to  act  in  relation  to  it. 

DELICT.     In  Civil  Law.     The  act  by  which 

one  person,    by   fraud   or   malignity,    ca 
some  damage  or  tort  to  some  other. 

In  its  most  enlarged  sense,  this  term  Includes  all 
kinds  of  crimes  and  misdemeanors,  nri'l  even  the 
Injury  which  has  been  caused  by  another,  either 
voluntarily  or  accidentally,  without  evil  intention. 
But  more  commonly  by  delicts  are  understoo 
small  offences  which  are  punished  by  a  small  fine  or 
a  short  imprisonment 

Private  delicts  are  those  which  are  di 
ly  injurious  to  a  private  individual. 

Public  delicts  are  those  which  affect  the 
whole  community  in  their  hurtful  conse- 
quences. 

(J nasi  delicts  are  the  acts  of  a  person,  who. 
without  malignity,  but  by  an  inexcusable 
imprudence,  causes  an  injury  to  another. 
Pothier.  Obi.  n.  116;    Erskine,  Pr.  4.  4.  1. 

DELICTUM  (I/at).  A  crime  or  offence; 
a  tort  or  wrong,  as  in  actions  ex  delicto,  l 
Chit.  PL  A  challenge  of  a  juror  propter 
delictum  is  for  some  'Time  or  misdemeanor 
thai  affects  ins  credit  and  renders  him  infa- 
mous. 3  Bla.  Com.  363;  2  Kent  241  Some 
offence  committed  or  wrong  done.  1  Kent 
552;  Cowp.  L99,  200.  A  state  of  culpability. 
Occurring  often,  in  the  phrase  "in  pari  de- 
licto melior  est  conditio  </< favicitis."  So, 
where  both  parties  to  a  broken  contract 
have  been  guilty  of  unlawful  acts,  the  law 
will  OOl  interfere,  but  will  leave  them  in 
pari  delicto.     2  Greenl.  Ev.  §  111. 

DELIMIT.  To  mark  or  lay  out  the  limits 
or  boundary  line  of  a  territory  or  country. 

DELINQUENT.  One  who  has  been  guilty 
of  some  crime,  offence,  or  failure  of  duty. 


DELIRIUM  FEBRILE 


820 


DELIRIUM  TREMENS 


DELIRIUM  FEBRILE.  In  Medical  Juris- 
prudence. A  form  of  mental  aberration  inci- 
dent to  febrile  disease,  and  sometimes  to 
the  last  stages  of  chronic  diseases. 

The  aberration  is  mostly  of  a  subjective  character, 
maintained  by  the  inward  activity  of  the  mind  rath- 
er than  by  outward  impressions.  "Regardless  of 
persons  or  things  around  him,  and  scarcely  capable 
of  recognizing  them  when  aroused  by  his  attend- 
ants, the  patient  retires  within  himself,  to  dwell  up- 
on the  scenes  and  events  of  the  past,  which  pass  be- 
fore him.  in  wild  and  disorderly  array,  while  the 
tongue  feebly  records  the  varying  impressions,  in 
the  form  of  disjointed,  incoherent  discourse,  or  of 
senseless  rhapsody."  Ray,  Med.  Jur.  346.  It  comes 
on  gradually,  being  first  manifested  by  talking  while 
asleep,  and  by  a  momentary  forgetfulness  of  persons 
and  things  on  waking.  Fully  aroused,  however,  the 
mind  becomes  clear  and  tranquil,  and  so  continues 
until  the  return  of  sleep,  when  the  same  incidents 
recur.  Gradually  the  mental  disorder  becomes  more 
intense,  and  the  intervals  between  its  returns  of 
shorter  duration,  until  they  disappear  altogether. 
Occasionally  the  past  is  revived  with  wonderful  viv- 
idness, and  acquirements  are  displayed  which  the 
patient,  before  his  illness,  had  entirely  forgotten. 
Instances  are  related  of  persons  speaking  in  a  lan- 
guage which,  though  acquired  in  youth,  had  long 
since  passed  from  their  memory.  See  the  definition 
of  delirium  by  Bland,  Ch.,  in  Owing's  case,  1  Bland, 
(Md.)  Ch.  3S6,  17  Am.  Dec.  311. 

The  only   acts  which   are   liable  to  be  affected  by 
delirium  are  wills,  which  are  often  made  in  the  last 
illness  during  the  periods  when  the  mind  is  appar- 
ently  clear.     Under   such   circumstances   it  may  be 
questioned  whether   the   apparent   clearness   was  or 
was  not  real ;    and  it  is  a  question  not  always  easily 
answered.    In  the  early  stages  of  delirium  the  mind 
may  be  quite  clear  no  doubt,  in  the  intervals,  while 
it  is   no   less  certain  that  there   comes  a  period   at 
last  when   no   really   lucid   interval   occurs  and  the 
mind   is  reliable   at   no   time.     The   person   may   be 
quiet,  and  even  answer  questions  with  some  degree 
of  pertinence,  while  a  close  examination  would  show 
the  mind  to  be   in  a  dreamy  condition   and  unable 
to  appreciate  any  nice  relations.     In  all  these  cases 
the    question    to   be    met    is,    whether    the    delirium 
which   confessedly   existed  before  the   act  left  upon 
the  mind  no  trace  of  its  influence  ;    whether  the  tes- 
tator, calm,  quiet,  clear,  and  coherent  as  he  seemed, 
was  not  quite  unconscious  of  the  nature  of  the  act 
he  was  performing.    The  state  of  things  implied  in 
these    questions   is   not    fanciful.      In   every   case   it 
may  possibly  exist,  and  the  questions  must  be  met. 
After  obtaining  all  the  light  which  can  be  thrown 
on  the  mental  condition  of  the  testator  by  nurses, 
servants,  and  physicians,  then  the  character  of  the 
act  itself   and   the  circumstances  which   accompany 
it  require  a  careful  investigation.    If  it  should  ap- 
pear that  the  mind  was  apparently  clear,  and  that 
the  act  was  a  rational  act  rationally  done,  consist- 
ent one  part  with  another,  and  in  accordance  with 
wishes    or    instructions    previously    expressed,    and 
without  any  appearance  of  foreign  influence,  then  it 
would   be   established.     A   different   state   of   things 
would  to  that  extent  raise  suspicion  and  throw  dis- 
credit on  the  act    Yet  at  the  very  best  it  will  occa- 
sionally happen,  so  dubious  sometimes  are  the  indi- 
cations that  the  decision  will  be  largely  conjectural. 
1  Hagg  Eccl.  146,  256,  502,  577  ;    2  id.  142  ;    3  id.  790  ; 
1  Lee  Eccl.  130 ;    2  id.  229.    See  Insanity. 


DELIRIUM  TREMENS  (called,  also,  man- 
ia-a-potu).       In     Medical     Jurisprudence.      A 

form  of  mental  disorder,  usually  accompa- 
nied by  tremor,  incident  to  habits  of  intem- 
perate drinking,  which  generally  appears  as 
a  sequel  to  a  period  of  unusual  excess  or 
after  a  few  days'  abstinence  from  stimulat- 
ing drink.  It  may  also  be  caused  in  in- 
temperate subjects  by   an   accident,  fright, 


or  acute  inflammatory  disease,  such  as  pneu 
monia. 

The  nature  of  the  connection  between  this  disease 
and  abstinence  is  not  yet  clearly  understood.  Where 
the  former  succeeds  a  broken  limb,  or  any  other 
severe  accident  that  confines  the  patient  to  his  bed 
and  obliges  him  to  abstain,  it  would  seem  as  if  its 
development  were  favored  by  the  constitutional  dis- 
turbance then  existing.  In  other  cases,  where  the 
abstinence  is  apparently  voluntary,  there  is  some 
reason  to  suppose  that  it  is  really  the  incubation  of 
the  disease,  and  not  its  cause. 

Its  approach  is  generally  indicated  by  a  slight 
tremor  and  faltering  of  the  hands  and  lower  extrem- 
ities, a  tremulousness  of  the  voice,  a  certain  rest- 
lessness and  sense  of  anxiety  which  the  patient 
knows  not  how  to  describe  or  account  for,  disturbed 
sleep,  and  impaired  appetite.  These  symptoms  hav- 
ing continued  two  or  three  days,  at  the  end  of 
which  time  they  have  usually  increased  in  severity, 
the  patient  ceases  to  sleep  altogether,  and  soon  be- 
comes delirious  at  intervals.  After  a  while  the  de- 
lirium becomes  constant,  as  well  as  the  utter  ab- 
sence of  sleep.  There  is  usually  an  elevation  of  tem- 
perature of  two  or  three  degrees.  This  state  of 
watchfulness  and  delirium  continues  three  or  four 
days,  when,  if  the  patient  recover,  it  is  succeeded  by 
sleep,  which  at  first  appears  in  uneasy  and  irregu- 
lar naps,  and  lastly  in  long,  sound,  and  refreshing 
slumbers.  If  sleep  does  not  supervene  about  this 
time,    the    disease   may   prove   fatal. 

The  mental  aberration  of  delirium  tremens  is 
marked  by  some  peculiar  characters.  Almost  in- 
variably the  patient  manifests  feelings  of  fear  and 
suspicion,  and  labors  under  continual  apprehensions 
of  being  made  the  victim  of  sinister  designs  and 
practices.  He  imagines  that  people  have  conspired 
to  rob  and  murder  him,  and  insists  that  he  can  hear 
them  in  an  adjoining  room  arranging  their  plans 
and  preparing  to  rush  upon  him,  or  that  he  is  forci- 
bly detained  and  prevented  from  going  to  his  own 
home.  One  of  the  most  common  hallucinations  in 
this  disease  is  that  of  constantly  seeing  devils, 
snakes,  or  vermin  around  him  and  on  him.  Under 
the  influence  of  the  terrors  inspired  by  these  no- 
tions, the  wretched  patient  often  endeavors  to  cut 
his  throat,  or  jump  out  of  the  window,  or  murder  his 
wife,  or  some  one  else  whom  his  disordered  imag- 
ination identifies  with  his  enemies. 

Delirium  tremens  must  not  be  confounded  with 
other  forms  of  mental  derangement  which  occur  1b 
connection  with  intemperate  habits.  Hard  drinking 
may  produce  a  paroxysm  of  maniacal  excitement, 
or  a  host  of  hallucinations  and  delusions,  which  dis- 
appear after  a  few  days'  abstinence  from  drink  and 
are  succeeded  by  the  ordinary  mental  condition.  In 
U.  S.  v.  McGlue,  1  Curt.  cc.  1,  Fed.  Cas.  No.  15,679, 
for  instance,  the  prisoner  was  defendant  on  the  plea 
that  the  homicide  for  which  he  was  indicted  was 
committed  in  a  fit  of  delirium  tremens.  There  was 
no  doubt  that  he  was  laboring  under  some  form  of 
insanity ;  but  the  fact,  which  appeared  in  evidence, 
that  his  reason  returned  before  the  recurrence  of 
sound  sleep,  rendered  it  very  doubtful  whether  the 
trouble  was  delirium  tremens,  although  in  every 
other  respect  it  looked  like  that  disease. 

By  repeated  decisions  the  law  has  been  settled  in 
this  country  that  delirium  tremens  annuls  responsi- 
bility for  any  act  that  may  be  committed  under  its 
influence:  provided,  of  course,  that  the  mental  con- 
dition can  stand  the  tests  applied  in  other  forms  of 
insanity.  The  law  does  not  look  to  the  remote 
causes  of  the  mental  affection ;  and  the  rule  on  this 
point  is,  that  if  the  act  is  not  committed  under  the 
immediate  influence  of  intoxicating  drinks,  the  plea 
of  insanity  is  not  invalidated  by  the  fact  that  it  is 
the  result  of  drinking  at  some  previous  time.  Such 
drinking  may  be  morally  wrong ;  but  the  same  may 
be  said  of  other  vicious  indulgences  which  give  rise 
to  much  of  the  insanity  which  exists  in  the  world ; 
Whart.  Cr.  L.  §  48  ;  Beasley  v.  State,  50  Ala.  149, 
20  Am.  Rep.  292  ;  Cluck  v.  State,  40  Ind.  263  ;  Rob- 
erts v.  People,  19  Mich.  401 ;  Carter  v.  State,  12 
Tex    500,  62  Am.  Dec.  539;    Fisher  v.  State,  64  Ind. 


DELIRIUM  TREMENS 


827 


DELIVERY 


435:  U.  S.  T.  McGlue,  1  Curt.  cc.  1,  Fed.  Cas.  No. 
15,679  ;  U.  S.  v.  Drew,  5  Mas.  28,  Fed.  Cas.  No.  14,993  ; 
State  v.  Wilson,  Ray,  Med.  Jur.  520  ;  State  v.  Har- 
rigan,  9  Houst.  (Del.)  309,  31  Atl.  1052 :  Ayres  v. 
State  (Tex.)  1:6  S.  W.  396.  In  England,  the  existence 
of  delirium  tremens  has  been  admitted  as  an  ex- 
cuse for  crime  for  the  same  reasons  ;  Reg  v.  Wat- 
son and  Reg  v.  Simpson,  2  Tayl.  Med.  Jur.  599;  14 
Cox,  Cr.  Cas.  565,  In  the  case  of  Birdsall,  1  Beck, 
Med.  Jur.  808.  it  was  hold  that  delirium  tremens  was 
not  a  valid  defence,  because  the  prisoner  knew,  by 
repeated  experience,  that  Indulgence  in  drinking 
would  probably  bring  on  an  attack  of  the  disease  ; 
see  also  in  Roberts  y.  People,  19  Mich.  401.  See 
Drunkenness. 

DELIVERANCE.  In  Practice.  A  term 
used  by  the  clerk  in  court  to  every  prisoner 
who  is  arraigned  and  pleads  not  guilty,  to 
whom  he  wishes  a  good  deliverance.  In 
modern  practice  this  is  seldom  used. 

DELIVERY.  The  transfer  of  a  deed  from 
the  grantor  to  the  grantee,  or  some  person 
acting  in  his  behalf,  in  such  a  manner  as  to 
deprive  the  grantor  of  his  right  to  recall 
it  at  his  option. 

An  absolute  delivery  is  one  which  is  com- 
plete upon  the  actual  transfer  of  the  instru- 
ment from  the  possession  of  the  grantor. 

A  conditional  delivery  is  one  which  pass- 
es the  deed  from  the  possession  of  the  gran- 
tor, but  is  not  to  be  completed  by  possession 
in  the  grantee,  or  a  third  person  as  his 
agent,  until  the  happening  of  a  speciOed 
event  A  delivery  in  this  manner  is  an  es- 
crow (q.  v.). 

No  particular  form  is  required  to  effect 
a  delivery.  It  may  be  by  acts  merely,  by 
words  merely,  or  by  both  combined ;  but  in 
all  cases  an  intention  that  it  shall  be  a  deliv- 
ery must  exist;  Com.  Dig.  Fait  (A);  6  Sim. 
31;  Lindsay  v.  Lindsay,  11  Vt.  621;  Arrison 
v.  Harmstead,  2  Pa.  191;  Verplank  v.  Sterry, 
12  Johns.  (N.  Y.)  536,  7  Am.  Dec.  348;  .Mills 
v.  Gore,  20  Pick.  (.Mass.)  28;  Hughes  v.  Has- 
ten, 4  J.  J.  Marsh.  (Ky.)  572,  20  Am.  Dec. 
230;  Hayes  v.  Boylan,  141  111.  400,  30  N.  E. 
1041,  33  Am.  St.  Rep.  326;  Nazro  v.  Ware, 
38  Minn.  443,  38  N.  W.  359;  Stefhan  v.  Lank, 
69  Tex.  513,  6  S.  W.  623;  Flint  v.  Phippe, 
16  Or.  437,  19  Tac.  543.  The  unconditional 
delivery  of  a  deed  to  a  third  person  for  the 
use  of  a  lunatic  grantee,  not  under  guardian- 
ship, followed  by  circumstances  indicating 
acceptance  by  the  grantee,  is  valid ;  Camp- 
bell v.  Knlm,  4f>  Mich.  513,  8  N.  W.  523,  40 
Am.  Rep.  479.  "Anything  which  signifies  the 
intention  of  the  grantor  to  part  with  his  con- 
trol or  dominion  over  the  paper,  so  that  it 
may  become  a  muniment  of  title  in  the  gran- 
tee, operates  as  a  legal  delivery.  With  re- 
spect to  the  measure  of  proof  required,  a 
difference  is  recognized  in  the  cases  depend- 
ing upon  the  character  of  the  deed,  whether 
it.  be  voluntary  or  made  to  give  effect  to  a 
sale.  In  the  former  case  the  intention  to 
part  with  the  control  of  the  deed  is  not  pre- 
sumed and  a  delivery  must  be  proved  strict- 
ly. .  .  But  if  tne  conveyance  be  for 
a  valuable  consideration  and  absolute  on  its 


face,  the  Intention  to  consummate  the  con- 
veyance by  the  delivery  of  the  deed  as  a 
muniment  of  title  is  inferred  from  the  gran- 
tor's parting  with  the  q  of  it, 
whether  it  be  to  the  grantee  directly  or  to 
some  third  person — if  he  part  with  it  with- 
out any  condition  or  reservation."  Bates, 
Ch.,  in  Jamison  v.  Craven,  ; 
In  the  absence  of  direct  evidence,  the  deliv- 
ery of  a  deed  will  be  i  from  the 
concurrent  acts  of  the  parties  recognizing 
a  transfer  of  title;  Gould  v.  Day.  94  r.  S. 
in;,.  24  L.  Ed.  232;  Turner  v.  Warren,  160 
Pa.   330,    28   All.   7S1 ;    Williams   v.    \\  i, 

1  is  III.    126,  36  X.  B.  KM.     Bo  Ion-  as  a 

is  within  the  control  and  subject  to  the 
dominion  of  the  grantor,  there  is  no  deliv- 
ery, without  which  there  can  be  no  i 
Byars  v.  Spencer,  mi  ill.  429,  40  Am.  uep. 
212;  Lang  v.  Smith.  ::t  W.  7a,  725,  17  S. 
E.  213.  The  possession  of  a  deed  by  the 
grantee  therein,  is  prima  facie  evidence  of 
its  delivery;  Campbell  v.  Carruth,  32  Fla. 
264,  i:;  South.  432;  McClellan  v.  Zwingli,  70 
Hun  600,  24  X.  Y.  Supp.  ::71  :  Lewis  v.  Wat- 
son, 98  Ala.  479,  13  South.  570,  22  L.  R,  A. 
297,  39  Am.  St.  Hep.  82.  The  deed  "f  a  cor- 
poration was  said  to  he  delivered  by  a  Mixing 
the  corporate  seal;  Co.  Litt.  22,  n.,  ';•;.  n. ; 
Cro.  Eliz.  107;  2  Rolle,  Ahr.  Fait  (I);  L.  R 

2  II.  L.  2! Hi. 

It  may  be  made  by  an  agent  as  well 
the  grantor  himself;  Hatch  v.  Hatch,  9 
307,  6  Am.  Dec.  07;  Belden  v.  Carter,  1  Day 
(Conn.)  66,  4  Am.  Dec.  185;  5  B.  &  C.  071; 
or  to  an  agent  previously  appointed:   West- 
ern R.  Corp.  v.  Babcock.  0  Mete.  (M 
or  subsequently  recognized;  Turner  v.  Whid- 
den,  22  Me.  121;   Shirley's  I.< — e  v.  Ayres, 
14  Ohio,   307,  45  Am.   Dec.   546;   hut  a  sub- 
sequent assent   on   the  part  of  the  grantee 
will   not   be   presumed:    HuliCK    v.    ScoviL.   4 
Oilman    (111.)    177;    Canning    v.    1'inkham,    1 
N.  H.  353;  Church  v.  oilman.  15  Wei 
Y.)  656,  30  Am.  Dec  82.     Where  a  fat 
purchasing   land   has   the   deed   executed    in 
the  name  of  his   minor  son,   the  delivery   of 
the  deed  to  the  father  is  sufficient  delivery 
to    the   son;    Hall    v.    Hall,    107    Mo.    101,    17 
S.  W.  811. 

The  delivery  of  a  deed  to  a  third  person 
for  the  grantee's  benefit,  followed  by  an  as- 
sertion of  title  by  the  granl  I 
delivery:  Ilaeiini  v.  Bleisch,  1  10  111.  2 
N.  E.  I-"-". :  as  is  also  such  a  delivery  where 
the  third  person  is  to  he  custodian,  hut 
where  the  deed  is  not  to  go  into  force  until 
after  the  grantor's  death;  Campbell  v.  Mor- 
gan, GS  Hun  490,  ^2   X.   Y.   Supp.  1001. 

The  cases  holding  that  a  deed  delivered 
to  a  third  person  to  lake  effect  on  the  death 
of  the  grantor  is  valid  are  collected  by  Mr. 
Jones  in  his  work  on  Real  Property,  vol.  2, 
§  1234;  see  also  Wittenbrock  v.  Cass,  110 
Cal.  1.  12  Pac.  •->.00;  Gish  v.  Brown,  171  Pa. 
479,    33    Atl.    00;    Laker   v.    Baker,    159    111. 


DELIVERY 


828 


DELIVERY 


394,  42  N.  E.  867;  Benzler  v.  Rieckhoff,  97 
la.   75,   66   N.   W.    147;    Haeg   v.   Haeg,   53 
Minn.  33,  55  N.  W.  1114;  Hutton  v.  Cramer, 
10  Ariz.  110,  85  Pac.  483,  103  Pac.  497;  and 
there    are    authorities    which    uphold    such 
transfers  even  though  the  grantor  reserves 
a  right  to  recall  the  deed  at  any  time  be- 
fore his  death,  provided  he  does  not  do  so; 
Belden  v.  Carter,  4  Day   (Conn.)  66,  4  Am. 
Dec.    185;    but  it  is   held   that  these  cases 
are  indefensible  on  principle,  and  that  such 
a  transaction  is  testamentary;  Arnegaard  v. 
Arnegaard,  7  N.   D.  475,   75  N.  W.   797,  41 
L.  R.  A.  258 ;  Phelps  v.  Pratt,  225  111.  85,  80 
N.   E.   69,   9   L.   R.   A.    (N.   S.)   945.     Actual 
delivery  passes  title,  and  such  title  Is  there- 
after  as    much   beyond   the   control   of   the 
grantor  as  though  he  had  never  owned  the 
land;  id.;  Arnegaard  v.  Arnegaard;  7  N.  D. 
475,   75  N.   W.   797,  41   L.   R.  A.   258,   citing 
Con'nard  v.  Colgan,  55  la.  538,  8  N.  W.  351 ; 
Seibel   v.    Rapp,    85   Va.   2S,    6    S.    E.    478; 
Douglas  v.  West,  140  111.  455,  31  N.  E.  40a. 
For  this  reason  it  has  been  held  that  the 
declarations   of   the   grantor   subsequent    to 
an  alleged  delivery  are  not  competent  to  Im- 
peach it.     If  he  has  in  fact  transferred  the 
title,  he  cannot,  by  his  unsworn  declarations 
made  in  his  own  interest,  in  effect  lay  the 
foundation  for  securing  a  restoration  of  the 
title  without  the  act  or  even  consent  of  the 
grantee ;  Bury  v.  Young,  98  Cal.  446,  33  Pac. 
338,  35  Am.  St.  Rep.  1S6 ;  Blight  v.  Schenck, 
10  Pa.  2S5,  51  Am.  Dec.  478. 

When  the  maker  of  a  deed  parts  with  the 
possession  of  it  to  anybody,  there  is  a  pre- 
sumption that  it  was  delivered ;  and  it  is  for 
the  maker  to  show  that  it  was  delivered  in 
escrow;  Robbins  v.  Rascoe,  120  N.  C.  79,  26 
S.  E.  807,  38  L.  R.  A.  238,  58  Am.  St.  Rep. 
774.  As  to  delivery  to  a  third  person  to 
take  effect  on  the  grantor's  death,  some  of 
the  cases  proceed  on  the  theory  that  the  fee 
does  not  pass  to  the  grantee  until  the  deliv- 
ery of  the  deed  to  him,  and  that  then  his 
title  relates  back  to  the  original  delivery. 
But  the  better  rule  is  said  to  be  that  the 
deed  is  immediately  operative  as  against  the 
grantor,  and  that  the  condition  that  delivery 
to  the  grantee  shall  not  be  made  until  after 
the  grantor's  death  is  equivalent  to  the  res- 
ervation of  a  life  estate  in  his  favor  in  the 
land  itself;  Arnegaard  v.  Arnegaard,  7  N. 
D.  475,  75  N.  W.  797,  41  L.  R.  A.  258.  In 
Taft  v.  Taft,  59  Mich.  185,  26  N<  W.  426,  60 
Am.  Rep.  291,  it  is  said  a  deed  of  convey- 
ance in  present  terms  is  inconsistent  with 
the  retention  of  a  life  estate,  and  from  the 
time  when  the  deed  is  delivered  as  a  con- 
veyance the  whole  title  goes  with  it  and  be- 
comes irrevocable. 

To  complete  a  delivery,  acceptance  must 
take  place,  which  may  be  presumed  from 
the  grantee's  possession;  Clarke  v.  Ray,  1 
Har.  &  J.  (Md.)  319;  Ward  v.  Lewis,  4  Pick. 
(Mass.)  518;  Canning  v.  Pinkham,  1  N.  H. 
353 ;  Southern  Life  Ins.  &  Trust  Co.  r.  Cole, 


4  Fla.  359;  Pitts  v.  Sheriff,  108  Mo.  110,  18 
S.  W.  1071;  from  the  relationship  of  a  per- 
son holding  the  deed  to  the  grantee;  Bryan 
v.  Wash,  2  Gilman  (111.)  557;  Souverbye  v. 
Arden,  1  Johns.  Ch.  (N.  Y.)  240;  Methodist 
Episcopal  Church  v.  Jaques,  1  Johns.  Ch. 
(N.  Y.)  456;  and  from  other  circumstances; 
Merrills  v.  Swift,  18  Conn.  257,  46  Am.  Dec. 
315 ;  McKinney  v.  Rhoads,  5  Watts  (Pa.)  343. 
The  execution  and  recording  of  a  deed,  and 
delivery  of  it  to  the  register  for  that  pur- 
pose, do  not  vest  the  title  in  the  grantee; 
he  must  first  ratify  these  acts;  Younge  v. 
Guilbeau,  3  Wall.  (U.  S.)  636,  18  L.  Ed.  262 ; 
Maynard  v.  Maynard,  10  Mass.  456,  6  Am. 
Dec.  146;  Hutton  v.  Smith,  88  la.  238,  55 
N.  W.  326;  but  see  Glaze  v.  Ins.  Co.,  87 
Mich.  349,  49  N.  W.  595 ;  but  they  are  prima 
facie  evidence  of  delivery;  Kille  v.  Ege,  79 
Pa.  15;  Davis  v.  Garrett,  91  Tenn.  147,  18 
S.  W.  113:  Fenton  v.  Miller,  94  Mich.  204, 
53  N.  W.  957;  Knox  T.  Clark,  15  Colo.  App. 
356,  62  Pac.  334. 

Ratification  of  the  Recording  of  an  Un- 
delivered Deed.  An  undelivered  deed  wrong- 
fully recorded  passes  no  title ;  Calhoun  Coun- 
ty v.  Emigrant  Co.,  93  U.  S.  124,  23  L.  Ed. 
826 ;  Gulf  Coal  &  Coke  Co.  v.  Coal  &  Coke 
Co.,  145  Ala.  228,  40  South.  397;  Everts  v. 
Agnes,  6  Wis.  453;  Smith  v.  Bank,  32  Vt. 
341,  76  Am.  Dec.  179 ;  but  a  deed  secured  by 
the  grantee  and  placed  on  record  without 
delivery  may  be  ratified  by  the  grantor  by 
treating  the  property  as  belonging  to  the 
grantee,  and  inducing  him  to  assert  title 
under  the  belief  that  he  has  the  title; 
Phelps  v.  Pratt,  225  111.  85,  80  N.  E.  69,  9 
L.  R.  A.  (N.  S.)  945;  such  a  delivery  was 
held  to  have  been  ratified  by  the  grantor 
where  he  had  notice  of  the  recording  and 
remained  quiet  for  several  years;  McNulty 
v.  McNulty,  47  Kan.  208,  27  Pac.  819;  Pitt- 
man  v.  Sofley,  64  111.  155;  and  where  he  re- 
ceived and  retained  the  purchase  money  or  a 
portion  thereof;  Harkness  v.  Cleaves,  113 
la.  140,  84  N.  W.  1033 ;  and  where  the  gran- 
tor assents  to  the  grantee's  raising  money 
to  be  secured  by  a  mortgage  upon  the  prop- 
erty; Lyman  v.  Smith,  4  Lack.  Leg.  News 
(Pa.)  207 ;  to  the  same  effect,  Mays  v.  Shields, 
117  Ga.  814,  45  S.  E.  68,  where  it  is  said 
the  grantor  cannot  recognize  the  grantee's 
possession  as  valid  for  some  purposes,  and 
disclaim  it  for  others;  and  to  the  same  ef- 
fect, Dixon  v.  Bank,  102  Ga.  461,  31  S.  E. 
96,  66  Am.   St.  Rep.  193. 

Negligence  by  the  grantor  of  an  undeliver- 
ed deed  in  keeping  it  in  a  place  to  which 
the  grantee  had  access  will  not  estop  him 
from  denying  its  validity  as  against  a  pur- 
chaser in  good  faith  from  the  grantee,  where 
the  latter  surreptitiously  abstracted  the  deed 
and  recorded  it ;  Garner  v.  Risinger,  35  Tex. 
Civ.  App.  378,  81  S.  W.  343 ;  Tisher  v.  Beck 
with,  30  Wis.  55,  11  Am.  Rep.  546.  It  has 
been  held  that  nothing  short  of  an  explicit 
ratification  by  the  grantor  of  the  delivery,  or 


DELIVERY 


829 


DELIVERY 


such  acquiescence  after  full  knowledge  of 
the  facts  as  would  raise  a  presumption  of 
an  express  ratification,  could  give  the  deed 
vitality;  Hadloek  v.  Hadlock,  22  111. 
And  it  has  been  held  that  failure  of  succes- 
sors in  title  to  one  whose  undelivered  deed 
to  real  estate  has  been  recorded  by  tbe  gran- 
tee to  bring  suit  to  remove  it  from  the  rec- 
ord will  not  estop  them  from  denying  the 
title  of  a  stranger  who  purchases  the  prop- 
erty in  reliance  upon  the  record;  Gulf  Coal 
&  Coke  Co.  v.  Coal  &  Coke  Co.,  145  Ala.  228, 
40   South.  397. 

See  14  Harv.  L.  Rev.  456;  Assent. 

There  can  ordinarily  be  but  one  valid  de- 
livery; Verplank  v.  Sterry,  12  Johns.  (N.  Y.) 
536,  7  Am.  Dec.  348;  which  can  take  place 
only  after  complete  execution ;  McKee  v. 
Hicks,  13  N.  C.  379;  Moelle  v.  Sherwood, 
148  U.  S.  21,  13  Sup.  Ct.  426,  37  L.  Ed.  350. 
But  there  must  be  one;  Stiles  v.  Brown,  16 
Vt.  563;  2  Washb.  R.  P.  581;  and  from  that 
one  the  deed  takes  effect;  Geiss  v.  Oden- 
beimer,  4  Yeates  (Pa.)  278,  2  Am.  Dec.  407; 
Cutts  v.  Mfg.  Co.,  18  Me.  190.  Elsey  v. 
Metcalf,  1  Denio  (N.  Y.)  323.  Where  the 
date  of  acknowledgment  of  a  mortgage  dif- 
fered from  its  date,  delivery  will  be  of  the 
former  date,  in  the  absence  of  any  evidence ; 
Guaranty  Trust  Co.  of  New  York  v.  R  Co., 
107  Fed.  311,  46  C.  C.  A.  305. 

See  Escrow  ,  Record  ;  Deed. 

In  Contracts.  The  transfer  of  the  posses- 
sion of  a  thing  from  one  person  to  another. 

Originally,  delivery  was  a  clear  and  un- 
equivocal act  of  giving  possession,  accom- 
plished by  placing  the  subject  to  be  trans- 
ferred in  the  hands  of  the  transferree  or  his 
agent,  or  in  their  respective  warehouses,  ves- 
sels, carts,  and  the  like ;  but  in  modern  times 
it  is  frequently  symbolical,  as  by  delivery 
of  the  key  to  a  room  containing  goods; 
Wilkes  v.  Ferris,  5  Johns.  (N.  Y.)  335,  4  Am. 
Dec.  364;  Leedom  v.  Philips,  1  Yeates  (Pa.) 
529;  2  Ves.  Sen.  445;  see,  also,  7  East  558; 
8  B.  &  P.  233;  Debinson  v.  Emmons,  158 
Mass.  592,  33  N.  E.  706;  by  marking  timber 
on  a  wharf,  or  goods  in  a  warehouse,  or  by 
separating  and  weighing  or  measuring  them ; 
Barney  v.  Brown,  2  Vt.  374,  19  Am.  Dec. 
720 ;  Hurff  v.  Hires,  40  N.  J.  L.  5S1,  29  Am. 
Rep.  282;  Farmers'  Phosphate  Co.  v.  Gill,  69 
Md.  537,  16  Atl.  214,  1  L.  R.  A.  767,  9  Am. 
St.  Rep.  443 ;  or  otherwise  constructive,  as 
by  the  delivery  of  a  part  for  the  whole ; 
Chamberlain  v.  Farr,  23  Vt.  265;  Leggett  v. 
Rogers,  9  Barb.  (N.  Y.)  416;  Packard  v. 
Dunsmore,  11  Cush.  (Mass.)  282;  Vining  v. 
Gilbreth,  39  Me.  496 ;  3  B.  &  P.  69.  Aud  see, 
as  to  what  constitutes  a  delivery;  President, 
etc.,  of  Portland  Bank  v.  Stacey,  4  Mass.  661, 
3  Am.  Dec.  253;  Burrows  v.  Whitaker,  71 
N.  Y.  291,  27  Am.  Rep.  42;  Gravett  v.  Mugge, 
89  111.  21S;  Thomas'  Adm'r  v.  Lewis,  89  Va. 
1,  15  S.  E.  3S9,  18  L.  R.  A.  170,  37  Am.  St. 
Rep.  848;  Deming  v.  Cotton-Press  Co.,  90 
Tenn.   306,   17   S.    W.   89,   13  L,   R.   A.   518; 


Brewster  v.  Red.  74  [a.  .".''0,  38  N.  w.  381; 
[1892]  1  Q.  B.  E 

Where    goods    are    ordered    by    a    f< 
merchant,  the  title  i  [very  to 

a  carrier  for  shipment,  subject  only  t«>  the 
right  of  stoppage  in  transitu;  Philadelphia 
&  R.  R,  Co.  v.  WIreman,  38  Pa.  264;  Smith 
v.  Edwards,  156  Mae      221,  L017; 

Seaman    v.    Adler,    37    led.    26  in    v. 

McGary,  117  Ind.  132,   19   N.   I ..   731  ; 
Nat   Bank  v.  McAndrews,   7   Mont   150,   it 
I'ac.  763;  Meyer  Bros.  Drug  Co.  v.  McMahon, 
50   Mo.  App.   L8;    Foley  v.  Felrath,  98  Ala. 
176,    13    South.    485,    39    Am.    St.    Rep.    39. 
Prima  facie  proof  of  delivery  is  made  out  by 
proof  of  delivery  to  a  carrier;  Brud  v. 
ing,  139  111.  App.  107;  hut  such  is  not  a  de- 
livery   to  the   vendee   where   he  dies    ! 
they  reach  their  destination;  Smith  v.   i 
nan,  62  Mich.  349,  28  N.  W.  892,  4  Am.   St 
Rep.  867.     Where  the  vendor  takes  the  bill 
of   lading  deliverable   to   the   order   of  him- 
self, or  of  his  agent,  it  prevents  the  proper- 
ty from  passing  to  the  intended  vendee  until 
delivery;  Berger  v.   State,  50  Ark.  20,  U  B. 
W.  15;   Blackb.  Sales  130. 

Delivery  is  not  necessary  at  common  law 
to  complete  a  sale  of  personal  property  as 
between  the  vendor  and  vendee;  Beuj. 
§  315;  as  a  sale  passes  title  as  soon  as  the 
bargain  is  struck  without  any  delivery  or 
payment;  Briggs  v.  U.  S.,  143  U.  S.  346,  12 
Sup.  Ct.  391,  36  L.  Ed.  180;  but  as  against 
third  parties  possession  retained  by  the  ven- 
dor raises  a  presumption  of  fraud  conclusive 
according  to  some  authorities;  Hamilton  v. 
Russell,  1  Cra.  (U.  S.)  309,  2  L,  Ed.  118; 
Alexander  v.  Deneale,  2  Munf.  (Va.)  341; 
Hudnal  v.  Wilder,  4  McCord  (S.  C.)  294,  17 
Am.  Dec.  744;  Ragsn  v.  Kennedy,  1  Ov. 
(Tenn.)  91;  Jarvis  v.  Davis,  14  B.  Monr. 
(Ky.)  533,  61  Am.  Dec.  166;  Bowman  v.  Her- 
ring, 4  Harr.  (Del.)  458;  Thornton  v.  Dawn 
port,  1  Scam.  (111.)  296.  29  Am.  Dec. 
Chumar  v.  Wood,  6  N.  J.  L.  1  ■">."> ;  Patten  v. 
Smith,  5  Conn.  196;  Wilson  v.  Hooper,  12 
Vt.  653,  36  Am.  Dec.  366;  Gibson  v.  Love, 
4  I'la.  219;  Sturtevant  v.  Ballard,  9  Johns. 
(N.  Y.)  :;:'»7,  6  Am.  Dec.  281;  l  Campb.  332; 
Gould  v.  lluulley,  73  Cal.  399,  15  Pac.  2 1  : 
Freedman  v.  Mfg.  Co.,  122  Pa.  25,  15  Atl. 
690;  others  holding  it  merely  strong  evi- 
dence of  fraud  to  be  left  to  the  jury;  .".  1;. 
&  C.  368;  Land  v.  Jeffries.  5  Rand  (Va.) 
211;  Terry  v.  Belcher,  1  Bail.  (S 
('alien  v.  Thompson,:;  Yerj:.  (Tenn.)  475  24 
Am.  Dec.  5*7;  Hundley  v.  Webb,  :'.  .1.  .1. 
Marsh.  (Ky.)  643,  20  Am.  Dec.  189;  Thomp- 
son v.  Blancnard,  1  N.  V.  ."•<>•"• ;  (iriswold  v. 
Sheldon,  id.  581  :  Marden  v.  Babcock,  2 
Mete.  (Mass.)  99;  Cutter  v.  Copeland,  18 
Me.  127:  Erwin  v.  Bank,  5  La.  Ann.  1;  Bry- 
ant v.  Kelton,  1  Tex.  415;  but  delivery  is 
necessary,  in  general,  where  the  property  in 
goods  is  to  be  transferred  in  pursuance  of 
a  previous  contract;  1  Taunt.  318;  Bean  v. 
Simpson,   16   Me.   49;   and   also   in  case  of 


DELIVERY 


830 


DELIVERY 


a  donatio  causa  mortis;  Wells  v.  Tucker,  3 
Binn.  (Pa.)  370;  2  Ves.  Ch.  120;  9  id,  1; 
Daniel  v.  Smith,  64  Cal.  346,  30  Pac.  575; 
Debinson  v.  Emmons,  158  Mass.  592,  33  N. 
E.  706;  Kirk  v.  MeCusker,  3  Misc.  277,  22 
N.  Y.  Supp.  7S0.  To  give  validity  to  a  gift, 
there  must  be  such  a  delivery  of  the  subject 
thereof  as  works  an  immediate  change  in 
the  dominion  of  the  property;  Gartside  v. 
Pahlman,  45  Mo.  App.  160.  The  rules  re- 
quiring actual  full  delivery  are  subject  to 
modification  in  the  case  of  bulky  articles; 
Girard  v.  Taggart,  5  S.  &  R.  (Pa.)  19,  9  Am. 
Dec.  327;  Bean  v.  Simpson,  16  Me.  49.  See, 
also,  Bailey  v.  Ogdens,  3  Johns.  (N.  Y.)  399, 
3  Am.  Dec.  509;  De  Ridder  v.  McKnight,  13 
Johns.  (N.  Y.)  294;  Dutilh  v.  Ritchie,  1  Dall. 
(U.  S.)  171,  1  L.  Ed.  86;  Currier  v.  Currier, 
2  N.  H.  75,  9  Am.  Dec.  43 ;  Smith  v.  Wheeler, 
7  Or.  49,  33  Am.  Rep.  69S;  Billingsley  v. 
White,  59  Pa.  464;  2  Kent  508;  Bailment; 
Sale  ;  C.  O.  D. ;  Place  of  Delivery. 

The  word  delivery  is  used  in  different 
senses,  which  should  be  borne  in  mind  in 
considering  the  cases.  Sometimes  it  denotes 
transfer  of  the  property  in  the  chattel  and 
sometimes  transfer  of  the  possession  of  the 
chattel.  When  used  in  the  latter  sense  it 
may  refer  either  to  the  formation  of  the 
contract,  or  to  the  performance  of  it.  When 
it  refers  to  the  delivery  of  possession  in 
the  performance  of  the  contract,  the  buyer 
is  sometimes  spoken  of  as  being  in  posses- 
sion although  he  has  only  the  right  of  pos- 
session, while  the  actual  custody  remains 
with  the  vendor. 

.  A  condition  requiring  deliveiw  may  be  an- 
nexed as  a  part  of  any  contract  of  transfer ; 
Savage  Mfg.   Co.  v.  Armstrong,  19  Me.  147. 

In  the  absence  of  contract,  the  amount  of 
transportation  to  be  performed  by  the  seller 
to  constitute  delivery  is  determined  by  gen- 
eral usage. 

The  delivery  of  a  contract  in  writing  is 
necessary  to  its  validity ;  Ligon  v.  Wharton 
(Tex.)  120  S.  W.  930. 

See  Escrow. 

In  Medical  Jurisprudence.  The  act  of  a 
woman  giving  birth  to  her  offspring. 

Pretended  delivery  may  present  itself  In  three 
points  of  view.  First,  when  the  female  who  feigns 
has  never  been  pregnant.  When  thoroughly  inves- 
tigated, this  may  always  be  detected.  There  are 
signs  which  must  be  present  and  cannot  be  feigned. 
An  enlargement  of  the  orifice  of  the  uterus,  and  a 
tumefaction  of  the  organs  of  generation,  should 
always  be  present,  and  if  absent  are  conclusive 
against  the  fact.  2  Annates  d'Hygiene,  227.  Second, 
when  the  pretended  pregnancy  and  delivery  have 
been  preceded  by  one  or  more  deliveries.  In  this 
case  attention  should  be  given  to  the  following  cir- 
cumstances: the  mystery,  if  any,  which  has  been 
affected  with  regard  to  the  situation  of  the  female  ; 
her  age ;  that  of  her  husband  ;  and,  particularly, 
whether  aged  or  decrepit.  Third,  when  the  woman 
has  been  actually  delivered,  and  substitutes  a  living 
for  a  dead  child.  But  little  evidence  can  be  obtained 
on  this  subject  from  a  physical  examination. 

Concealed  delivery  generally  takes  place  when  the 
woman  either  has  destroyed  her  offspring  or  it  was 
born    dead.      In    suspected    cases    the   following   cir- 


cumstances should  be  attended  to:  First,  the  proof  a 
of  pregnancy  which  arise  in  consequence  of  the  ex- 
amination of  the  mother.  When  she  has  been  preg- 
nant, and  has  been  delivered,  the  usual  signs  of 
delivery,  mentioned  below,  will  be  present.  A  care- 
ful investigation  as  to  the  woman's  appearance 
before  and  since  the  delivery  will  have  some  weight ; 
though  such  evidence  is  not  always  to  be  relied  up- 
on, as  such  appearances  are  not  unfrequently  de- 
ceptive. Second,  the  proofs  of  recent  delivery. 
Third,  the  connection  between  the  supposed  state  of 
parturition  and  the  state  of  the  child  that  is  found  ; 
for  if  the  age  of  the  child  do  not  correspond  to  that 
time,  it  will  be  a  strong  circumstance  in  favor  of 
the  mother's  innocence.  A  redness  of  the  skin  and 
an  attachment  of  the  umbilical  cord  to -the  navel  in- 
dicate a  recent  birth.  Whether  the  child  was  living 
at  its  birth,  belongs  to  the  subject  of  infanticide. 

The  usual  signs  of  delivery  are  very  well  collected 
in  Beck's  excellent  treatise  on  Medical  Jurispru- 
dence, and  are  here  extracted: 

If  the  female  be  examined  within  three  or  four 
days  after  the  occurrence  of  delivery,  the  following 
circumstances  will  generally  be  observed:  greater 
or  less  weakness,  a  slight  paleness  of  the  face,  the 
eye  a  little  sunken  and  surrounded  by  a  purplish  or 
dark-brown  colored  ring,  and  a  whiteness  of  tha 
skin  like  that  of  a  person  convalescing  from  disease. 
The  belly  is  soft,  the  skin  of  the  abdomen  is  lax, 
lies  in  folds,  and  is  traversed  in  various  directions 
by  shining  reddish  and  whitish  lines,  which  especial- 
ly extend  from  the  groin  and  pubes  to  the  navel. 
These  lines  have  sometimes  been  termed  tinea  aloi-- 
cantes,  and  are  particularly  observed  near  the 
umbilical  region,  where  the  abdomen  has  experi- 
enced the  greatest  distension.  The  breasts  become 
tumid  and  hard,  and,  on  pressure,  emit  a  fluid  which 
at  first  is  serous  and  afterwards  gradually  becomes 
whiter.  The  areolae  round  the  nipples  are  dark 
colored.  The  external  genital  organs  and  vagina 
are  dilated  and  tumefied  throughout  the  whole  of 
their  extent,  from  the  pressure  of  the  foetus.  The 
uterus  may  be  felt  through  the  abdominal  parietes, 
voluminous,  firm,  and  globular,  and  rising  nearly  as 
high  as  the  umbilicus.  Its  orifice  is  soft  and  tumid, 
and  dilated  so  as  to  admit  two  or  more  fingers.  The 
fourchette,  or  anterior  margin  of  the  perinasum,  is 
sometimes  torn,  or  it  is  lax,  and  appears  to  have 
suffered  considerable  distension.  A  discharge  (term- 
ed the  lochial)  commences  from  the  uterus,  which 
is  distinguished  from  the  menses  by  its  pale  color, 
its  peculiar  and  well-known  smell,  and  its  duration. 
The  lochia  are  at  first  of  a  red  color,  and  gradu- 
ally  become  lighter   until   they  cease. 

These  signs  may  generally  be  relied  upon  as  indi- 
cating recent  delivery:  yet  it  requires  much  ex- 
perience in  order  not  to  be  deceived  by  appearances. 

The  lochial  discharge  might  be  mistaken  for  men- 
struation, or  leucorrhea,  were  it  not  for  its  peculiar 
smell ;    though  this  is  not  absolutely  characteristic. 

Relaxation  of  the  soft  parts  arises  as  frequently 
from  menstruation  as  from  delivery ;  but  in  these 
cases  the  os  uteri  and  vagina  are  not  so  much 
tumefied,  nor  is  there  that  tenderness  and  swelling. 
The  parts  are  found  pale  and  flabby  when  all  signs 
of  contusion  disappear,  after  delivery,  and  this  cir- 
cumstance does   not   follow  menstruation. 

The  presence  of  milk,  though  a  usual  sign  of 
delivery,  is  not  always  to  be  relied  upon  ;  for  this 
secretion  may  take  place  independent  of  pregnancy. 

The  wrinkles  and  relaxations  of  the  abdomen 
which  follow  delivery  may  be  the  consequence  of 
dropsy,  or  of  lankness  following  great  obesity.  This 
state  of  the  parts  is  also  seldom  striking  after  the 
birth  of  the  first  child,  as  they  shortly  resume  their 
natural  state.  Positive  proof  of  the  occurrence  of 
birth  is  furnished  only  by  the  discovery  of  parts  of 
the  ovum.  In  most  cases  the  demonstration  by  the 
microscope  of  shreds  of  the  decidual  with  large, 
nucleated  and  fatty  cells  is  of  itself  a  sure  proof; 
Winckle,  quoted  by  Witthaus  &  Becker. 

See,  generally,  1  Beck,  Med.  Jur.  c.  7,  p.  206 ;  1 
Chit.  Med.  Jur.  411 ;  Ryan,  Med.  Jur.  c.  10,  p.  133 ; 
1  Briand,  Med.  Leg.  liere  partie,  c  5 ;  Whart.  &  S.  ; 
Witthaus  &  Becker,  Med.  Jur. 


DELIVERY  BOND 


831 


DELUSION 


DELIVERY  BOND.  An  obligation  for  the 
return  of  goods  or  the  payment  of  their 
value,  taken  into  the  possession  of  the  law, 
as  in  seizures  under  revenue  laws.  Douglass 
v.  Douglass,  21  Wall.  (U.  B.)  98,  22  L,  Ed. 
479;  Krippendorf  v.  Hyde,  110  U.  S 
4  Sup.  Ct.  27,  28  L.  Ed.  145.  See  Forth- 
coming Bond. 

DELIVERY  ORDER.  An  order  by  the 
owner  of  goods  to  a  person  holding  them  on 
his  behalf,  requesting  him  to  deliver  them 
to  a  person  named  in  the  order.  Such  an  or- 
der is  not  a  document  of  title  and  therefore 
does  not  transfer  the  property  or  divert  1 1 1 » • 
vendor's  lien  for  the  purchase  money  until 
the  holder  obtains  actual  delivery,  the  issue 
of  a  dock  warrant  in  his  name,  or  an  entry 
of  his  title  in  the  wharliuger's  books.  2  li.  L. 
Cas.  309;  0  Ch.  D.  195. 

DELUSION.  In  Medical  Jurisprudence.  A 
perversion  of  the  judgment,  obviously  er- 
roneous aud  persistent.  A  symptom  of  men- 
tal disease,  in  which  persons  believe  things 
to  exist  which  exist  only,  or  In  the  degree 
they  are  conceived  of  only,  in  their  own 
imaginations,  with  a  persuasion  so  hxed  ami 
firm  that  neither  evidence  nor  argument  can 
convince  them  to  the  contrary.  A  faulty  be- 
lief concerning  a  subject  capable  of  physical 
demonstration,  out  of  which  the  person 
cannot  be  reasoned  by  adequate  means  for 
the  time  being.  1  Wood,  American  Text 
Book  of  Med.    See  Haixucination. 

The  individual  is,  of  course,  insane.  For 
example,  should  a  parent  unjustly  persist, 
without  the  least  ground,  in  attributing  to 
his  daughter  a  coarse  vice,  and  use  her  with 
uniform  unkindness,  there  not  being  the 
slightest  pretence  or  color  of  reason  for  the 
supposition,  a  just  inference  of  insanity  or 
delusion  would  arise  in  the  minds  of  a  jury ; 
because  a  supposition  long  entertained  and 
persisted  in,  after  argument  to  the  con- 
trary, and  against  the  natural  affections  of 
a  parent,  suggest  that  he  must  labor  under 
some  morbid  mental  delusion;  Whart.  (Jr.  L. 
|  37;  Whart.  &  S.  Med.  Jur.;  1  Redf.  Wills; 
Ray,  Med.  Jur.  §  20 ;  Shelf.  Lun.  296 ;  3  Add. 
Eccl.  70,  90,  180;  1  Hagg.  Eccl.  27.  See 
Guiteau's  Case,  10  Fed.  170;  Mann,  Med. 
Jur.  of  Insan.  58. 

Where  one  "labors  under  a  partial  delu- 
sion only,  and  is  not  in  other  respects  in- 
sane, we  think  he  must  be  considered  in  the 
same  situation  as  to  responsibility  as  if  the 
facts  with  respect  to  which  the  delusion  ex- 
ists were  real.  For  example,  if  under  the 
influence  of  his  delusion  he  supposes  another 
man  to  be  in  the  act  of  attempting  to  take 
away  his  life,  and  he  kills  that  man,  as  he 
supposes,  in  self-defence,  he  would  be  ex- 
empt from  punishment,"  This  is  the  rule 
as  stated  by  the  English  judges,  cited  in  1 
Whart.  Cr.  L.  §  37.  Shaw,  C.  J.,  in  Com. 
v.  Rogers,  7  Mete.  (Mass.)  500,  41  Am.  Dec. 
458,  says:     "Monomania  may  operate  as  an 


excuse  for  a  criminal  act,"  when  "the  delu- 
sion is  such  that  the  person  iin<ler  its  in- 
fluence has  a  real  and  Arm  belief  of  som? 
fact,  not  true  in  itself,  but  which.  If  it  were 
true,  would  excuse  his  ad  ;  as  where  the 
belief  is  that  the  party  Billed  had  an  im- 
mediate design  upon  his  life,  and  under  that 
belief  the  Insane  man  kills  in  sup; 
defence.  A  common  Instance 
fully  believes  that  the  ad  tie  is  doing  is  done 
by  the  immediate  comma  i.   and  be 

acts    under    the    deli 

that  what   he  is  doing  is  by  the  commi 
a   superior    power,   which   sup.  11  hu- 

man  laws  and   the  laws  of   n 

Where   a    testator  was   laboring   and 
delusion  that  his  brother  was  • 
muscle   preparatory    to    killing   him,    ti 
itself   would    not    justify    a    rejection    of   bis 
will  on  the  ground  of  unsound  i  lind;   In  re 
.  fil  Bun  639,  19  N.  Y.  Supp.  315.     A 
person    persistently   believing  facts 

which    have    no    real    >■•  Bt    all 

evidence  and  probability,  and  conducting 
himself  on  the  assumption  of  their  • 
ence,  is,  so  far  as  such  facts  are  concerned, 
under  an  insane  delusion;  TIaines  v.  Hayden, 
95  Mich.  .>:;J,  54  N.  W.  911,  35  Am.  St.  Bep. 
5G6. 

See  Paranoia. 

DEMAIN.     See  Demi  snt. 

DEMAND.     A  claim;  a  legal  obligation. 

Demand  is  a  term  of  art  of  an  extent 
er  in  its  signification  than  any  other 
word  except  claim.  Co.  Lift.  291;  In  re 
Denny,  1!  Hill  (N.  I.)  220;  Scott  v.  .Mor- 
ris, 9  S.  &  R.  (Pa.)  124;  Murphy's  Appeal,  0 
W.  &  S.  (Pa.)   226. 

A  release  of  all  demands  is,  in  general,  a 
release  of  all  covenants,  real  or  pen 
conditions,  whether  broken  or  not,  annui- 
ties, recognizances,  obligations,  contracts, 
and  the  like;  In  re  Denny,  •_'  Hill  (N.  Y.t  220; 
but  does  not  discharge  rent  before  it  is 
due,  if  it  be  a  rent  incident  to  trie  reversion; 
for  the  rent  was  not  only  not  due,  but  the 
consideration — the  future  enjoyment  of  the 
lands — for  which  the  rent  was  to  be  given 
was  not  executed;  l  Lev.  99;  Baa  Ahr.  Re- 
lease, I.  See  10  Co.  128;  Bordman  v.  I  >-- 
born,  L>:?  Pick.  (Mass.)  295;  Martin  v.  Mar- 
tin, 7  Md.  375,  63  Am.  Dec.  364;  Favors  v. 
Johnson.  79  Qa.  555,  4  S.  E3.  925. 

In  Practice.  A  requisition  or  request  to 
do  a  particular  thing  specified  under  a  claim 
of  right  on  the  part  of  the  person  requesting. 

Jn  causes  of  action  arising  ex  contractu 
It  is  frequently  necessary,  to  enable  plaintiff 
to  bring  an  action,  that  be  should  make 
a  demand  upon  the  party  bound  to  perform 
the  contract  or  discbarge  the  obligation. 
Thus,  where  property  Is  sold  to  be  paid  for 
on  delivery,  a  demand  must  be  made  I 
bringing  an  action  for  non-delivery,  and  prov- 
ed on  trial;  5  Term  409;  3  M.  &  W.  254;  Lit- 
tle  v.   Banks,   67   Hun  505,   22   N.    Y.    Supp. 


DEMAND 


832 


DEMAND 


512 ;  but  not  if  the  seller  has  incapacitated 
himself  from  delivering;  5  B.  &  Aid.  712; 
Wilmouth  v.  Patton,  2  Bibb  (Ky.)  280;  Bob- 
bins v.  Luce,  4  Mass.  474 ;  and  this  rule  and 
exception  apply  to  contracts  for  marriage; 
2  Dowl.  &  R.  55;  1  Chit  Pr.  57,  note  (n), 
438,  note  (e).  Nor  is  a  demand  necessary 
where  it  is  to  be  presumed  that  it  would 
have  been  unavailing;  Davenport  v.  Ladd, 
38  Minn.  545,  38  N.  W.  622;  Bogle  v.  Gor- 
don, 39  Kan.  31,  17  Pac.  857.  Where  a 
selling  price  has  been  agreed  on,  the  bring- 
ing of  a  suit  therefor  is  a  sufficient  demand 
for  the  money  claimed ;  Maguire  v.  Durant, 
1  Misc.  509,  20  N.  Y.  Supp.  617.  A  demand 
of  rent  is  necessary  before  re-entry  for  non- 
payment; Parks  v.  Hays,  92  Tenn.  161,  22 
S.  W.  3.  But  where  rent  is  payable  on  the 
first  day  of  the  month,  no  demand  of  the 
rent  on  the  day  it  falls  due  is  necessary  to 
entitle  the  landlord  to  maintain  an  action 
therefor;  Clarke  v.  Charter,  128  Mass.  483. 
See  Re-entkt.  No  demand  is  in  general 
necessary  on  a  promissory  note  before  bring- 
ing an  action;  but  after  a  tender  demand 
must  be  made  of  the  snm  tendered ;  1  Campb. 
181,  474;  1  Stark.  323.  A  note  payable  "on 
call"  may  be  sued  on  without  demand ;  Mo- 
bile Sav.  Bank  v.  McDonnell,  83  Ala.  595,  4 
South.  346 ;  but  a  demand  and  notice  of 
non-payment  are  essential  to  fix  the  liabili- 
ty of  endorsers  unless  waived ;  Presbrey 
v.  Thomas,  1  App.  D.  C.  171.  Where  a 
mortgagor  has  resolved  to  default  on  an 
interest  coupon  and  provides  no  funds  to 
pay  it,  the  holder  is  not  required  to  pre- 
sent it  for  payment  before  bringing  suit ; 
Conshohocken  Tube  Co.  v.  Equipment  Co., 
161  Pa.  391,  28  Atl.  1119. 

Cases  in  which  a  demand  was  held  neces- 
sary before  action  were  suits  upon  a  part- 
nership ;  Codman  v.  Rogers,  10  Pick.  112 ; 
moneys  received  but  not  accounted  for  by 
an  attorney  to  his  client;  Sheaf  v.  Dodge, 
161  Ind.  270,  68  N.  E.  292 ;  Banner  v.  D'Au- 
by,  34  Misc.  525,  69  N.  Y.  Supp.  891;  Mad- 
den v.  Watts,  59  S.  C.  81,  37  S.  E.  209;  Tay- 
lor v.  Bates,  5  Cow.  (N.  Y.)  376;  Sneed  v. 
Hanley,  Hemp.  659,  Fed.  Cas.  No.  13,136; 
moneys  received  by  a  corporation  officer  not 
accounted  for;  Landis  v.  Saxton,  105  Mo. 
486,  16  S.  W.  912,  24  Am.  St.  Rep.  403 ;  claim 
of  reinstatement  in  a  body  from  which  one 
was  illegally  expelled;  Meherin  v.  Produce 
Exchange,  117  Cal.  215,  48  Pac.  1074 ;  money 
realized  by  a  sheriff  on  execution  but  not 
paid  over;  Keithler  v.  Foster,  22  Ohio  St. 
27;  a  certificate  of  deposit  issued  by  a  bank 
which  by  its  terms  was  payable  on  its  re- 
turn properly  endorsed ;  Elliott  v.  Bank,  128 
la.  275,  103  N.  W.  777,  1  L.  R.  A.  (N.  S.) 
1130,  111  Am.  St.  Rep.  19S ;  Hillsinger  v. 
Bank,  108  Ga.  357,  33  S.  E.  985,  75  Am.  St. 
Rep.  42 ;  but  in  another  case  it  was  held 
that  action  would  lie  without  demand  on 
a  certificate  of  deposit;  McGough  v.  Jamison, 
107  Pa.  336.    See  Elliott  v.  Bank,  1  L.  R.  A. 


(N.  S.)  1130,  n.  A  demand  is  also  required 
before  action  to  recover  a  deposit  in  a  bank ; 
Johnson  v.  Bank,  1  Harring.  (Del.)  117; 
Sickles  v.  Herold,  149  N.  Y.  332,  43  N.  E. 
852 ;  Tobias  v.  Morris,  126  Ala.  535,  28  South. 
517. 

A  demand  is  not  necessary  before  suit  for 
rent,  whether  payable  in  money  in  advance; 
Clarke  v.  Charter,  128  Mass.  483 ;  or  in  labor 
or  property  payable  at  a  fixed  time  and 
place;  Packer  v.  Cockayne,  3  G.  Greene  (la.) 
Ill ;  and  in  a  suit  for  rent  the  demand  need 
not  be  proved  even  where  pleaded;  Gruhn  v. 
Gudebrod  Bros.  Co.,  21  Misc.  528,  47  N.  Y. 
Supp.  714;  for  articles  charged  on  land  de- 
vised to  and  accepted  by  residuary  devisee; 
WTiggin  v.  Wiggin,  43  N.  H.  561,  80  Am. 
Dec.  192;  for  boarding  a  man  under  a  con- 
tract; Chappell  v.  Woods,  9  Wash.  134,  37 
Pac.  286;  for  fees  of  an  attorney;  Foster  v. 
Newbrough,  66  Barb.  (N.  Y.)  645;  Gibbs  v. 
Davis,  11  Or.  2S8,  3  Pac.  677;  but  in  New 
Jersey  the  rendering  of  an  account  is  a  con- 
dition precedent  to  a  suit ;  Truitt  v.  Darnell, 
65  N.  J.  Eq.  221,  55  Atl.  692. 

In  cases  arising  ex  delicto,  a  demand  is 
frequently  necessary.  Thus,  when  the  wife, 
apprentice,  or  servant  of  one  person  has 
been  harbored  by  another,  the  proper  course 
is  to  make  a  demand  of  restoration  before 
an  action  brought,  in  order  to  constitute  the 
party  a  wilful  wrong-doer  unless  the  plain- 
tiff can  prove  an  original  illegal  enticing 
away;  2  Lev.  63;  5  East  39;  4  J.  B.  Moo.  12. 

So,  too,  in  cases  where  the  taking  of  goods 
is  lawful  but  their  subsequent  detention  be- 
comes illegal,  it  is  absolutely  necessary,  in 
order  to  secure  sufficient  evidence  of  a  con- 
version on  the  trial,  to  give  a  formal  notice 
of  the  owner's  right  to  the  property  and  pos- 
session, and  to  make  a  formal  demand  in 
writing  of  the  delivery  of  such  possession  to 
the  owner.  See  Trover;  Conversion.  And 
when  a  nuisance  has  been  erected  or  con- 
tinued by  a  man  on  his  own  land,  it  is  ad- 
visable, particularly  in  the  case  of  a  private 
nuisance,  to  give  tbe  party  notice,  and  re- 
quest him  to  remove  it,  either  before  an  en- 
try is  made  for  the  purpose  of  abating  it  or 
an  action  is  commenced  against  the  wrong- 
doer; and  a  demand  is  always  indispensable 
in  cases  of  a  continuance  of  a  nuisance  orig- 
inally created  by  another  person;  2  B.  &  C. 
302;  Cro.  Jac.  555;  Poll.  Torts  314;  5  Co. 
100;  5  Viner,  Abr.  506;  1  Ayliffe,  Pand.  497; 
Bac.  Abr.  Rent,  I. 

In  cases  of  contempts,  as  where  an  order 
to  pay  money  or  to  do  any  other  thing,  has 
been  made  a  rule  of  court,  a  demand  for  the 
payment  of  the  money  or  performance  of 
the  thing  must  be  made  before  an  attach- 
ment will  be  issued  for  a  contempt;  1  Cr. 
M.  &  R.  88,  459;  4  Tyrwh.  369;  2  Scott  193. 

Demand  should  be  made  by  the  party  hav- 
ing the  right,  or  his  authorized  agent;  2  B. 
&  P.  464  a;  West  v.  Tupper,  1  Bail.  <  (S.  C.) 
193;  Watt  v.  Potter,  2  Mas.  77,  Fed.  Cas.  No. 


DEMAND 


833 


DEMENTIA 


17,201;  Clough  v.  Unity,  18  N.  H.  75;  Sebrell 
v.  Couch,  55  Ind.  122;  of  the  person  in  de- 
fault, in  cases  of  torts;  8  B.  &  C.  528;  Shot- 
well  v.  Few,  7  Johns.  (N.  Y.)  302;  Bridgeport 
Bank  v.  R.  Co.,  30  Conn.  237;  in  ca 
rent;  2  Washb.  R.  P.  321  and  at  a  proper 
time  and  place  in  case  of  rents;  Jackson  v. 
Klpp,  3  Wend.  (N.  Y.)  230;  Jackson  v.  Ilarri- 
Bon,  17  Johns.  (N.  Y.)  GG;  McMurphy  v. 
Minot,  4  X.  H.  251;  Mackubin  v.  Whetcroft,' 
4  I  lair.  &  McH.  (Mil.)  L35;  Bradstreet  v. 
Clark,  21  Pick.  (Mass.)  389;  Pay  v.  shanks, 
56  I  ml.  554;  in  cases  of  notes  and  hills  of 
exchange;  Pars.  Notes  &  B. 

As  to  the  allegation  of  a  demand  in  a  dec- 
laration, see  1  Chit  PI.  322;  -'  id.  84;  1  Wins. 
Baund.  33,  note  2;  Bunn  v.  Lett,  G5  Hun  43, 
id  x.  Y.  Supp.  72S;  Com.  Dig.  Pleader. 

DEMAND  IN  RECONVENTION.  A  de- 
mand which  the  defendant  institutes  in  con- 
sequence of  that  which  the  plaintiff  has 
brought  against  him.  Used  in  Louisiana. 
La.  Pr.  Code,  art.  374. 

DEMANDANT.  The  plaintiff  or  party 
who  brings  a  real  action.  Co.  Litt.  127; 
Com.  Dig.    See  Reax  Action. 

DEM  ENS  (Lat).  Dement.  One  who  has 
lost  his  miud  through  illness  or  some  other 
cause.  One  whose  faculties  are  enfeebled. 
Dean,  Med.  Jur.  4S1.     See  Dementia. 

DEMENTIA.       In      Medical     Jurisprudence. 

That  form  of  insanity  which  is  characterized 
by  mental  weakness  and  decrepitude,  and  by 
total  inability  to  reason  correctly  or  incor- 
rectly. 

Memory  is  lost;  language  Is  Incoherent;  actions 
are  inconsistent.  The  thoughts  succeed  one  another 
without  any  obvious  bond  of  association.  Delusions, 
if  they  exist,  are  transitory,  and  leave  no  permanent 
impression:  and  for  everything  recent  the  memory 
is  exceedingly  weak.  In  mania,  the  action  of  the 
mind  is  marked  by  force,  hurry,  and  intensity  ;  in 
dementia,  by  slowness  and  weakness.  It  is  the 
natural  termination  of  many  forms  of  insanity. 
Occasionally  it  occurs  in  an  acute  form  in  young 
subjects  ;  and  here  only  it  is  curable.  In  old  men, 
in  whom  it  often  occurs,  it  is  called  senile  dementia, 
and  it  indicates  the  breaking  down  of  the  mental 
powers  in  advance  of  the  bodily  decay.  Here  we 
may  find  memory  of  conditions  long  since  past  and 
some  mental  power.  It  is  this  form  of  dementia 
only  which  gives  rise  to  litigation  ;  for  in  the  others 
the  incompetency  is  too  patent  to  admit  of  question. 
It  cannot  be  described  by  auy  positive  characters, 
because  it  differs  in  the  different  stages  of  its  prog- 
ress, varying  from  simple  lapse  of  memory  to  com- 
plete inability  to  recognize  persons  or  tbings.  And 
it  must  be  borne  in  mind  that  often  the  mental  in- 
firmity is  not  so  serious  as  might  be  supposed  at 
first  sight.  Many  an  old  man  who  seems  to  be 
scarcely  conscious  of  what  is  passing  around  him, 
and  is  guilty  of  frequent  breaches  of  decorum,  needs 
only  to  have  his  attention  aroused  to  a  matter  in 
which  he  is  deeply  interested,  to  show  no  lack  of 
vigor  or  acuteness.  In  other  words,  the  mind  may 
be  damaged  superficially  (to  use  a  figure),  while  it 
may  be  sound  at  the  core.  And  therefore  It  is  that 
one  may  be  quite  oblivious  of  names  and  dates, 
while  comprehending  perfectly  well  his  relations  to 
others  and  the  interests  in  which  he  was  concerned. 
It  follows  that  the  impressions  made  upon  casual  or 
ignorant  observers  in  regard  to  the  mental  condition 
are  of  far  less  value  than  those  made  upon  persons 

Bouv.— 53 


who  have  been  well  acquainted  with  his  habits  and 
have  had  occasion  to  test  the  vigor  of  his  fac  . 

Hi  nilr  dementia  or  the  imbecility  caused 
by  the  decay  of  old  ag<  d  the  ground 

on  which  the  wills  of  old  men  are  contested, 
and    the   conflicting 

the  proofs  of  foreign  influence,  and  the  In- 
dications of  mental  capacity  all  comhiue  to 
render  it  no  easy  task  to  arrive  at  a  sati 
factory  conclusion.  The  only  general  rule 
of  much  practical  value  is  that  <■• 
must  he  always  measured,  not  by  any  fan- 
cied  standard  of  intellect,  but  solely  by   ' 

Lrements  of  the  act  in  question.    A  small 
and  familiar  matter  would  require  l< 
tal  power  than  one  complicated  in  Its  details 
and    somewhat   new   to    the   testator's   expe- 
rience.   Less  capacity  would  be  l  to 
distribute    an    estate    between    a    wife    and 
child  than  between  a  multitude  of  relatP. 
with  unequal  claims  upon  bis  bounty.    Such 
is   the   principle;    and    the    ends    of   Justl 
cannot  be  better  served  than  by  its  correct 
and    faithful    application.     Of  course,    I 
will   always  be  more  or  less  difficulty;   but 
generally  by   discarding  all  legal  and   meta- 
physical subtleties  and  following  the  leading 
mon    sense,    it    will    be    satisfactorily 
muted. 
The  legal  principles  by  which   the  courts 
are    governed    are   not   essentially    difl 

whether  the  mental  incapacity  pro< d  from 

dementia  or  mania.  If  the  will  coincides 
with  the  previously  expressed  wishes  of  the 
testator,  if  it  recognizes  the  claims  of  those 
who  stood  in  near  relation  to  him,  if  it 
shows  no  indication  of  undue  influence. — if. 
in  short,  it  is  a  rational  act  rationally 
— it  will  be  established  though  there  may 
have  been  considerable  impairment  of  mind. 
2  Phill.  Keel.  440;  Harrison  v.  Rowan.  :: 
Wash.  C.  C.  580,  Fed.  Cas.  No.  G.141;  Den- 
nett v.  Dennett.  44  X.  EL  531,  84  Am.  Dec. 
07;  Taylor  v.  Pegram,  151  111.  106,  37  X.  E. 
837;  Plough  v.  Tarry.  144  Ind.  463,  40  N.  K. 
70.  43  X.  B.  560;  Pluck  v.  Pea.  51  X.  J.  Eq. 
233,   27   Atl.   636;    Matter   of   ■  Misc. 

199,  25  X.  Y.  Supp.  109;  Matter  of  Pike's 
Will.  83  Hun  327,  31  N.  Y.  Supp.  689;  Tay- 
lor v.  Trich,  165  Pa.  586,  30  Atl.  1053,  44 
Am.  St   Rep.  679. 

Tins  species  of  dementia  is  also  frequently 
i   and  proved  as  a    ground  of  lm] 
ing  deeds.     This  particular  form  of  mental 

e  may  result  either  in  total  ln< 
tency,  such  as  is  produced  by  any  form  of 
insanity,  or  a  greatly  defective  capacity, 
though  Short  Of  total  insanity,  in  which  the 
court  scrutinizes  the  act,  and  sustains  it 
only  when  there  is  found  to  have  been  capac- 
ity sufficient  for  the  act  in  question  and  en- 
tire freedom  of  will.  Consequently  such 
cases  usually  include  the  two  elements  of 
mental  Incompetency  of  some  degree  and 
undue  Influence;  and  probably  a  majority 
of  the  cases  in  which  the  aid  of  equity  is 
sought  to  set  aside  deeds  on  the  ground  of 


DEMENTIA 


834 


DEMESNE 


undue  influence  involve  also  the  question  of 
the  existence  of  senile  dementia  to  a  greater 
or  less  extent.  The  principle  upon  which 
courts  of  equity  deal  with  this  class  of  per- 
sons is  neither  as  a  matter  of  course  to  af- 
firm or  avoid  their  acts,  but  to  protect  them 
in  the  exercise  of  such  capacity  as  tbey  have. 
It  will  scrutinize  their  transactions;  consid- 
ering the  nature  of  the  act  done,  the  induce- 
ments leading  to  it,  and  the  attending  cir- 
cumstances and  influences.  If  the  conscience 
of  the  court  is  satisfied  that  such  a  grantor 
comprehended  the  nature  and  consequences 
of  the  transaction,  and  exercised  a  deliberate 
and  free  judgment,  it  will  be  sustained ;  but 
if  the  nature  of  the  act  or  the  attending 
circumstances  justify  tbe  conclusion  that 
the  grantor's  weakness  has  been  taken  ad- 
vantage of,  the  deed  will  be  set  aside  in 
equity  however  valid  it  might  be  at  law;  1 
Bro.  Ch.  560;  1  Knapp  73;  Cruise  v.  Chris- 
topher's Adm'r,  5  Dana  (Ky.)  181;  Wilson 
v.  Oldham,  12  B.  Monr.  (Ky.)  55;  Tracy  v. 
Sacket,  1  Ohio  St.  54,  59  Am.  Dec.  610; 
Gass  v.  Mason,  4  Sneed  (Tenn.)  497.  "It 
may  be  stated  as  settled  law,  that  whenever 
there  is  great  weakness  of  mind  in  a  person 
executing  a  conveyance  of  law,  arising  from 
age,  sickness,  or  any  other  cause,  though 
not  amounting  to  absolute  disqualification, 
and  the  consideration  given  for  the  property 
is  grossly  inadequate — a  court  of  equity  will 
.  .  .  interfere  and  set  the  conveyance 
aside;"  Allore  v.  Jewell,  94  U.  S.  511,  24 
L.  Ed.  260;  1  Sto.  Eq.  Jur.  §  238;  Bisph.  Eq. 
288.  For  a  thorough  examination  and  dis- 
cussion of  the  subject  in  a  case  of  senile  de- 
mentia in  which  a  deed  was  set  aside,  see 
Jones  v.  Thompson,  5  Del.  Ch.  374.  In  that 
case .  Saulsbury,  Ch.,  thus  stated  the  prin- 
ciple upon  which  courts  of  equity  deal  with 
such  cases :  "In  cases  of  alleged  mental 
incapacity,  the  test  is  whether  the  party 
had  the  ability  to  comprehend  in  a  reason- 
able manner  the  nature  of  the  affair  in  which 
he  participated.  This  is  the  rule  in  the  ab- 
sence of  fraud.  .  .  .  This  ability  so  to 
comprehend  necessarily  implies  the  power  to 
understand  the  character,  legal  conditions, 
and  effect  of  the  act  performed.  .  .  . 
The  cause  of  mental  weakness  is  immaterial. 
It  may  arise  from  injury  to  the  mind,  tem- 
porary illness,  or  excessive  old  age.  In  such 
cases  any  unfairness  will  be  promptly  re- 
dressed." In  a  very  similar  case  a  deed  was 
set  aside  on  the  ground  of  mental  incapacity 
of  the  grantor  by  reason  of  senile  dementia 
or  dotage,  by  Bland,  Ch.,  whose  opinion  con- 
tains an  elaborate  discussion  of  the  different 
species  of  dementia,  which  he  classifies  as, 
Idiocy,  Delirium,  Lunacy,  and  Dotage,  un- 
der which  latter  term  he  describes  senile  de- 
mentia. 

See  Insanity. 

DEMESNE  (Lat.  dominicum).  Lands  of 
which  the  lord  had  the  absolute  property  or 
ownership ;     as    distinguished    from    feudal 


lands,  which  he  held  of  a  superior.  2  Bla. 
Com.  104 ;  Cowell.  Lands  which  the  lord 
retained  under  his  immediate  control,  for 
the  purpose  of  supplying  his  table  and  the 
immediate  needs  of  his  household;  distin- 
guished from  that  farmed  out  to  tenants, 
called  among  the  Saxons  lordlands.  Blount; 
Co.  Litt.  17  a.    . 

Own ;  original.  Son  assault  demesne,  his 
(the  plaintiff's)  original  assault,  or  assault  in 
the  first  place.  2  Greenl.  Ev.  §  633 ;  3  Bla. 
Com.  120,  306. 

DEMESNE  AS  OF  FEE.  A  man  is  said  to 
be  seised  in  his  demesne  as  of  fee  of  a  cor- 
poreal inheritance,  because  he  has  a  prop- 
erty dominicum  or  demesne  in  the  thing  it- 
self. 2  Bla.  Com.  106.  But  when  he  has  no 
dominion  in  the  thing  itself,  as  in  the  case 
of  an  incorporeal  hereditament,  he  is  said 
to  be  seised  as  of  fee,  and  not  in  his  demesne 
as  of  fee ;  Littleton  §  i0 ;  Barnet  v.  Ihrie,  17 
S.  &  R.  (Pa.)  196 ;   Jones,  Land  Tit.  166. 

Formerly  it  was  the  practice  in  an  action 
on  the  case — e.  g.  for  a  nuisance  to  real  es- 
tate— to  aver  in  the  declaration  the  seisin  of 
the  plaintiff  in  demesne  as  of  fee ;  and  this 
is  still  necessary,  in  order  to  estop  the  rec- 
ord with  the  land,  so  that  it  may  run  with 
or  attend  the  title ;  Archb.  Civ.  PI.  104 ;  Co. 
Entr.  9,  pi.  8;  1  Saund.  346.  But  such  an 
action  may  be  maintained  on  the  possession 
as  well  as  on  the  seisin;  although  the  effect 
of  the  record  in  this  case  upon  the  title 
would  not  be  the  same;  Steph.  PI.  322;  4 
Term  718;  2  Wms.  Saund.  113  6;  Cro.  Car. 
500,  575. 

DEMESNE  LANDS.  A  phrase  meaning 
the  same  as  demesne. 

DEMESNE  LANDS  OF  THE  CROWN. 
That  share  of  lands  reserved  to  the  crown 
at  the  original  distribution  of  landed  prop- 
erty, or  which  came  to  it  afterwards  by  for- 
feiture or  otherwise.  1  Bla.  Com.  286;  2 
Steph.  Com.  550. 

D  E  M  I  D  I  ETAS.  A  word  used  in  ancient 
records  for  a  moiety,  or  one-half. 

DEMI- MARK.  A  sum  of  money  (6s.  8d., 
3  Bla.  Com.  App.  v.)  tendered  and  paid  into 
court  in  certain  cases  in  the  trial  of  a  writ 
of  right  by  the  grand  assize.  Co.  Litt.  294  o; 
Booth,  Real  Act.  98. 

It  was  paid  by  the  tenant  to  obtain  an  in- 
quiry by  the  grand  assize  into  the  time  of 
the  demandant's  seisin;  1  Reeve,  Hist.  Eng. 
Law  429;  Stearns,  Real  Act.  378.  It  com- 
pelled the  demandant  to  begin;  3  Chit.  PI. 
1373.  It  is  unknown  in  American  practice ; 
Bradstreet  v.  Supervisors  of  Oneida  County, 
13  Wend.  (N.  Y.)  546. 

DEMI-VILL.     Half  a  tithing. 

DEMISE.  A  conveyance,  either  in  fee,  for 
life,  or  for  years. 

A  lease  or  a  conveyance  for  a  term  of 
years.    According   to    Chief   Justice  Gibson, 


DEMISE 


835 


[ONSTRATIO 


the  English  word  demise,  though  improperly 
used  as  a  synonym  for  concessi  or  demtii, 
strictly  denotes  a  posthumous  grant,  and  no 
more.  Hemphill  v.  Eckfeldt,  5  Wharf.  (Pa.) 
278.  See  4  Bingh.  N.  0.  678;  Voorhees  v. 
Presbyterian  Church,  5  How.  Pr.  (N.  Y.)  71. 
Other  words  may  be  used;  18  L.  Q.  R-  338. 

In  a  conveyance,  the  word  "demise"  im- 
ports in  law  a  covenant  for  quiet  enjoymenl  ; 
Crouch  v.  Fowle,  9  N.  H.  210,  32  Am.  Dec. 
350;  1  M.  <;.  &  s.  429;  it  implies  a  power  to 
Lease;  Grannis  v.  Clark,  8  Cow.  (N,  Y.)  3G. 
See  O'Connor  v.  Daily.  L09  Mass.  235;  Cov- 
enant. As  to  the  covenants  implied,  see 
[1895]  1  Q.  B.  820. 

See  Demise  of  the  Crown. 

DEMISE  OF  THE  CROWN.  The  natural 
dissolution  of  the  king. 

The  term  is  said  to  denote  in  law  merely 
a  transfer  of  the  property  of  the  crown.  1 
Bla.  Com.  249.  By  demise  of  the  crown  we 
mean  only  that,  in  consequence  of  the  dis- 
union of  the  king's  natural  body  from  his 
hody  politic,  the  kingdom  is  transferred  or 
demised  to  his  successor,  and  so  the  royal 
dignity  remains  perpetual  Plowd.  117,  234. 
A  similar  result,  viz.:  the  perpetual  and 
continuous  existence  of  the  office  of  presi- 
dent of  the  United  States,  has  been  secured 
hy  the  constitution  and  subsequent  statutes. 
1.  Sharsw.  Bla.  Com.  249. 

DEMISE  AND  RE-DEMISE.  An  old  form 
of  conveyance  by  mutual  leases  made  from 
one  to  another  on  each  side  of  the  same  land, 
or  of  something  issuing  from  it  A  lease  for 
a  given  sum — usually  a  mere  nominal  amount 
— and  a  release  for  a  larger  rent  Toullier ; 
Whishaw;   Jacob. 

DEMOCRACY.  That  form  of  government 
in  which  the  people  rula 

But  the  multitude  caunot  actually  rule:  an  unor- 
ganic  democracy,  therefore,  one  that  is  not  founded 
upon  a  number  of  institutions  each  endowed  with  a 
degree  of  self-government,  naturally  becomes  a  one- 
man  government.  The  basis  of  the  democracy  is 
equality,  as  that  of  the  aristocj-acy  is  privilege;  but 
equality  of  itself  Is  no  guarantee  for  liberty,  nor 
does  equality  constitutes  liberty.  Absolute  democ- 
racies existed  in  antiquity  and  the  middle  ages: 
they  have  never  endured  for  any  length  of  time. 
On  their  character,  Aristotle's  Politics  may  be  read 
to  the  greatest  advantage.  Lieber,  in  his  Civil 
Liberty,  dwells  at  length  on  the  fact  that  mere 
equality,  without  institutions  of  various  kinds,  Is  ad- 
verse to  self-government ;  and  history  shows  that 
absolute  democracy  is  anything  rather  than  a  con- 
vertible term  for  liberty.     See  Absolutism  ;    Gov- 

EBNMENT. 

DEMOLISH.  To  destroy  totally  or  to  com- 
mence the  work  of  total  destruction  with  the 
purpose  of  completing  the  same.  50  L.  J.  M. 
C.  141. 

DEMONETIZE.  To  divest  of  the  Cha racter 
of  standard  money;  to  withdraw  from  use 
as  currency.     Stand.  Diet 

DEMONSTRATIO  fLat).  Description;  ad- 
dition;    denomination.      Occurring    often    in 

the  phrase  falsa  demonstratiu  nun  nocet  va 


false  description  does  not  harm).  2  Bla. 
Com.  382,  n. ;  2  P.  Wins.  140;  1  Greenl.  Ev. 
§  291  :    Wigr.   Win-   ! 

DEMONSTRATION     I  Lat.   <!■ 
point    out).      Whatever   is   -aid   or  written   to 
designate  a  thing  °r  person, 

Several  descriptions  may  be  employi 
denote  the  same  person  or  object;    and   I 
rule  of  law  in  such  cases  is  that  if  oi 
the  descriptions  he  erroneous  it  maj 
jected,  if,  after   it   is  expui  :h   will 

remain  to  identify  the  person  or  thing  in- 
tended, for  falsa  demonstratio  non  noc<  t. 
The  meaning  of  this  rule  is,  that  if  there  be 
an  adequate  description  with  convenlei 
tainty  of  what  was  contemplated,  a  subse- 
quent erroneous  addition  will  not  vitirfte  it. 
The  complement  of  tins  maxim  is.  non  <i<>  ii>i 
de0(  nt  verba  in  demonstratiom  m  falaam  -. 
competent  in  Umitationem  veramj  which 
means  that  if  it  stand  doubtful  upon  the 
words  whether  they  Import  a  false  ref< 
or  demonstration,  or  whether  they  be  words 
of  restraint  that  limit  the  generality  of  the 
former  words,  the  law  will  never  intend  er- 
ror or  falsehood,  if,  therefore,  there  is 
some  object  wherein  all  the  demonstrations 
are  true,  and  some  wherein  part  are  true  and 
part  false,  they  shall  be  intended  words  of 
true  limitation  to  ascertain  that  person  or 
thing  whereof  all  the  circumstances  are  true; 
4  i:.\eh.  604;  8  Bingh.  244;  Broom.  L.  Max. 
490;  I'ettis  v.  Kellogg,  7  Cush.  (Mass.)  460. 
Parol  and  extrinsii  •■  for  the  con- 

struction of  wills  misdescribing  the  subject 
of  the  devise  is  admitted.     Its  office  is  to  en- 
able a  court  to  reject  whatever  part  of  the 
description  is  false;    Fairfield  v.  Laws 
Conn.  501,   -17  Am.   Rep.   669;    Doe  v.   R 
Wend.  (N.  Y.)  541;    Benham  v.  Hendrickson, 
32   \.  -T.  Eq.  441:    Ro  e  v.  Hale.  185  HI.  379, 
56  N.  0.  1073,  76  Am.  St.  Hep.  40;    Fitzpat- 
rick  v.  Fitzpatrick,  36   la.  674,  11  An 
53S;    Wales  v.   Ten-  33   Mich.   177.   47 

X.  w.  238;  Seebroeb  v.  Fedawa,  33  Neb.  413, 
50  X.  W.  270,  29  Am.  St.  Rep.  488;  but  not 
where  there  is  a  property  which  every  part 
of  the  description  fits;  10  C.  B.  X.  s 
nor  where  the  will  contains  no  iangui 
connect  the  description  in  such  devise  with 
any  land  of  the  testator;  idj  Lbmax  v.  Lo- 
max.  218  ill.  629,  75  X.  B.  1076,  6  L.  R.  A. 
(X.   S.)  942. 

The  rule  that  falsa  demonstratio  does  not 
vitiate  an  otherwise  good  description  applies 
ry  kind  of  statement  of  fact.  Some  of 
the  particulars  of  an  averment  in  a  declara- 
tion may  be  rejected  if  the  declaration  is 
sensible  without  them  and  by  their  presence 
is  made  insensible  or  defective;   Yelv.  182. 

In    Evidence.     That    proof    Which    excludes 
all   possibility   of  error. 

nstniiiic  evidence  of  negligence  has 
been  applied  to  that  kind  of  negligence  which 
is  usually  expressed  by  res  ipsa  loquitur 
(winch  see).     See  Evidence. 


DEMONSTRATIVE  LEGACY 


836 


DEMURRAGE 


DEMONSTRATIVE  LEGACY.  A  pecunia- 
ry legacy  coupled  with  a  direction  that  it  be 
paid  out  of  a  specific  fund. 

A  bequest  of  a  sum  of  money  payable  out 
of  a  particular  fund  or  thing.  A  pecuniary 
legacy  given  generally,  but  with  a  demonstra- 
tion of  a  particular  fund  as  the  source  of 
its  payment.  Roquet  v.  Eldridge,  118  Ind. 
147,  20  N.  E.  733;  Glass  v.  Dunn,  17  Ohio 
St.  413.  See  Harper  v.  Bibb,  47  Ala.  547; 
Kunkel  v.  Macgill,  56  Md.  120. 

Such  a  bequest  differs  from  a  specific  leg- 
acy in  this,  that  if  the  fund  out  of  which 
it  is  payable  fails  for  any  cause,  it  is  never- 
theless entitled  "to  come  on  the  estate  as  a 
general  legacy;  and  it  differs  from  a  gen- 
eral legacy  in  this,  that  it  does  not  abate  in 
that  class,  but  in  the  class  of  specific  lega- 
cies," Armstrong's  Appeal,  63  Pa.  312,  per 
Sharswood,  J.  A  bequest  of  "$2,000  of  the 
South  Ward  Loan  of  Chester,"  where  the 
testator  owned  $10,000  of  the  loan  at  the 
date  of  the  will,  which  was  paid  off  before 
death,  was  held  demonstrative;  Ives  v.  Can- 
by,  48  Fed.  718.  So,  also,  "25  shares  of  cap- 
ital stock  of  the  State  Bank,"  etc.,  the  tes- 
tator owning  25  shares ;  Davis  v.  Cain's 
Ex'r,  36  N.  C.  309;  had  the  testator  said 
"my"  25  shares,  it  would  have  been  a  spe- 
cific legacy ;  id.  So  of  a  gift  of  25%  canal 
shares  of  which  the  testator  owned  15%,  all 
of  which  he  sold  before  his  death ;  2  Beav. 
515.  The  criterion  in  all  the  cases  is  wheth- 
er it  was  the  testator's  intention  to  give  the 
specific  security  then  owned  by  him,  or,  on 
the  other  hand,  to  give  nothing  distinctly 
severed  from  his  estate,  but  rather  such  a 
sum  as  would  suffice  to  buy  the  securities 
named;  id.  See  2  White  &  T.  Lead.  Cas. 
646 ;  2  Y.  &  C.  90 ;  Newton  v.  Stanley,  28  N. 
Y.  61;    Dryden  v.  Owings,  49  Md.  356. 

DEMPSTER.  In  Scotch  Law.  A  dooms- 
man.  One  who  pronounced  the  sentence  of 
court.     1  Howell,  St.  Tr.  937. 

DEMURRAGE.  The  delay  of  a  vessel  by 
the  freighter  beyond  the  time  allowed  for 
loading,   unloading,    or  sailing. 

Payment  for  such  delay. 

The  amount  due  by  the  freighter  or  char- 
terer to  the  owner  of  the  vessel  for  such  de- 
lay. 5  E.  &  B.  755;  Abb.  Adm.  Dec.  548; 
Gronn  v.  Woodruff,  19  Fed.  144. 

Demurrage  may  become  due  either  by  the 
ship's  detention  for  the  purpose  of  loading 
or  unloading  the  cargo,  either  before  or  dur- 
ing or  after  the  voyage,  or  in  waiting  for 
convoy ;  3  Kent  159 ;  Van  Etten  v.  Newton, 
134  N.  Y.  143,  31  N.  E.  334,  30  Am.  St.  Rep. 
630;  Donaldson  v.  McDowell,  1  Holmes  290, 
Fed.  Cas.  No.  3,9S5 ;  Creighton  v.  Dilks,  49 
Fed.  107 ;   Porter,  Bills  of  L.  356. 

Where  neither  the  charter  nor  the  bill  of 
lading  contained  any  provisions  as  to  de- 
murrage, and  the  master  made  no  formal 
protest  against  the  delay,  but  signed  the  bill 
of  lading  without  objection  and  did  not  bring 


suit  until  long  after,  demurrage  could  not 
be  recovered ;  McKeen  v.  Morse,  49  Fed.  253, 
1  C.  C.  A.  237;  Gage  v.  Morse,  12  Allen 
(Mass.)  410,  90  Am.  Dec.  155 ;  and  it  is  said 
the  English  authorities  are  uniformly  against 
such  a  liability ;  id.  5  El.  &  B.  755,  589  ;  10 
C.  B.  N.  S.  802.  Here  the  courts  have  not 
generally  followed  the  English  rule.  It  is 
held  that  maritime  demurrage  may  be  col- 
lected, even  though  not  provided  for  in  the 
contract,  and  that  a  lien  on  the  cargo  for 
demurrage  may  be  enforced ;  Donaldson  v. 
McDowell,  Fed.  Cas.  No.  3.9S5 ;  The  Hyperi- 
on's Cargo,  id.  6,9S7;  275  Tons  of  Mineral 
Phosphates,  9  Fed.  209;  Hawgood  v.  1,310, 
Tons  of  Coal,  21  Fed.  681 ;  and  in  England  it 
is  held  that  a  lien  for  demurrage  may  be  giv- 
en by  contract;  L.  R.  8  Exch.  101 ;  L,  R,  15 
Q.  B.  Div.  247. 

Under  the  terms  of  a  charter  where  de- 
murrage was  to  be  paid  for  each  working 
day  beyond  the  days  allowed  for  loading,  the 
time  lost  by  reason  of  storms  before  the  be- 
ginning of  the  lay  days,  or  after  their  ex- 
piration, could  not  be  deducted  in  computing 
the  demurrage;  Wold  v.  Keyser,  52  Fed. 
169,  2  C.  C.  A.  656. 

The  term  "working  days"  in  maritime  af- 
fairs means  calendar  days,  on  which  the  law 
permits  work  to  be  done,  and  excludes  Sun- 
days and  legal  holidays,  but  not  stormy  days ; 
Sorensen  v.  Keyser,  52  Fed.  163,  2  C.  C.  A. 
650.  But  see  Baldwin  v.  Timber  Co.,  142  N. 
Y.  279,  36  N.  E.  1060,  where  it  was  held  that 
Sundays  are  properly  included  in  computing 
demurrage,  when  demurrage  has  begun  to 
run.  Where  there  are  no  agreed  demurrage 
days  for  loading  the  case  is  one  of  implied 
contract  to  load  with  reasonable  diligence; 
Randall  v.  Sprague,  74  Fed.  247,  21  C.  C.  A. 
334. 

Where  a  charter  party  excepted  delays  by 
strikes,  it  was  held  to  apply  to  the  charter- 
er's own  workmen ;  Wood  v.  Keyser,  84  Fed. 
688;  but  not  to  a  strike  of  coal  operators 
which  overtaxed  the  capacity  of  the  harbor 
and  caused  delay;  W.  K.  Niver  Coal  Co.  v. 
S.  S.  Co.,  142  Fed.  402,  73  C.  C.  A.  502,  5  L. 
R.  A.  (N.  S.)  126. 

Demurrage,  though  a  maritime  term,  has 
been  adopted  in  railroad  practice.  A  rail- 
road company  may  charge  $2  a  day  for  the 
detention  of  cars  after  24  hours,  as  a  gen- 
eral rule  of  the  company  known  to  con- 
signees ;  Miller  v.  .Mansfield,  112  Mass.  260 ; 
so  in  Norfolk  &  W.  R.  Co.  v.  Adams,  90  Va. 
393,  18  S.  E.  673,  22  L.  R.  A.  530,  44  Am.  St 
Rep.  916,  where  it  was  said  to  be  not  a  trans- 
portation, nor  storage,  nor  terminal  charge, 
but  a  charge  by  the  carrier  as  bailee  of  the 
goods  after  its  duties  as  a  carrier  had  ceas- 
ed. Where  a  statute  gives  a  lien  for  freight 
and  storage,  the  lien  extends  to  demurrage 
charges;  New  Orleans  &  N.  E.  R.  Co.  v. 
George,  82  Miss.  710,  35  South.  193.  A  lien 
was  upheld  in  Southern  R.  Co.  v.  Mfg.  Co., 
142  Ala.  322,  37  South.  667,  68  L.  R.  A.  227. 


DEMURRAGE 


837 


DEMUR] 


110  Am.  St.  Rep.  32,  4  Ann.  Cas.  12;    Dar-" 
lington  v.   R.  Co.,  99  Mo.  App.   1,   72   S.    W. 
122;    Schumacher  v.  It.  Co.,  207  111.  LI 
N.  E.  825.    It  is  held,  however,  that  a  i 
has  no  lien;    Xicolette  Lum! 
('«...  213  Pa.  379,  62  Atl.  1000,  3  L.  R.  A.  (N. 
S.)  327,  110  Am.  St.  Rep-  550,  5  Ann.  Oa 
Wallace   v.   R.  Co.,  216  Pa.  311,  05   Atl.  665. 
tate  cannot  enacl  that  a  consignee  shall 
have  3  days  to  unload  and  as  many  more  as 
he  oh.  pi  a  day;  Pennsylvania  R.  Co. 

v.  M.  O.  Coggins  Co.,  38  Pa.  Super.  Ct  129. 
See  3  L.  R.  A.  (N.   S.)  327,  n.     See  Lay 
Days;  Lti;.\. 

DEMURRER  (Lat.  donorari,  Old  Fr.  de- 
morrer,  to  stay;  to  abide).  In  Pleading.  An 
allegation,  that,  admitting  the  facts  of  the 
preceding  pleading  to  be  true,  as  stated  by 
the  party  making  it,  he  has  yet  shown  no 
cause  why  the  party  demurring  should  be 
compelled  by  the  court  to  proceed  further. 
A  declaration  that  the  party  demurring  will 
go  no  further,  because  the  other  has  shown 
nothing  against  him.  5  Mod.  232;  Co.  Litt 
71  &.  It  imports  that  the  objecting  party 
will  not  proceed,  but  will  wait  the  judgment 
of  the  court  whether  he  is  bound  so  to  do. 
Co.  Litt.  71  b;  Steph.  PL  61;  Pepper,  PI.  11. 
In  Equity.  An  allegation  of  a  defendant, 
which,  admitting  the  matters  of  fact  alleged 
by  the  bill  to  be  true,  shows  that  as  therein 
set  forth  they  are  insufficient  for  the  plain- 
tiff to  proceed  upon,  or  to  oblige  the  defend- 
ant to  answer ;  or  that,  for  some  reason  ap- 
parent on  the  face  of  the  bill,  or  on  account 
of  the  omission  of  some  matter  which  ought 
to  be  contained  therein,  or  for  want  of  some 
circumstances  which  ought  to  be  attendant 
thereon,  the  defendant  ought  not  to  be  com- 
pelled to  answer  to  the  whole  bill,  or  to  some 
certain  part  thereof.     Mitf.  Eq.  PI.  107. 

A  demurrer  was  said  to  be  an  answer  in 
law  to  a  bill,  though  not  technically  an  an- 
swer in  the  common  language  of  practice ; 
New  Jersey  v.  New  York,  0  Pet.  (U.  S.)  323, 
8  L.  Ed.  414.  The  purpose  of  a  demurrer 
being  to  raise  the  question  whether  the  case 
presented  by  the  bill  would,  if  proved,  en- 
title the  plaintiff  to  the  relief  sought,  it  nec- 
essarily proceeds  upon  the  theory  that  the 
truth  of  the  bill  is  admitted.  It  is  therefore 
settled  that  all  facts  well  pleaded  in  the  bill, 
but  no  others,  are  taken  to  be  true,  for  the 
purposes  of  the  argument  and  decision  upon 
the  demurrer;  Commercial  Hank  v.  Buck- 
ner,  20  How.  (U.  S.)  108, 15  L.  Ed.  862  :  Gritt- 
ing v.  Gibb,  2  Black  (U.  S.)  519,  17  I..  Ed, 
353;  Goble  v.  Andruss,  2  N.  J.  Eq.  CO;  1 
Ves.  Jr.  72;  1  Pan.  Ch.  Pr.  545.  It  does 
not  admit  conclusions  of  law  stated  in  the 
bill;  Bryan  v.  Spruill,  57  N.  C.  27;  Fogg  v. 
Blair,  139  U.  S.  US,  11  Sup.  Ct.  476,  35  L. 
Ed.  104;  nor  can  it  supply  defects  in  sub- 
stance, nor  cure  a  defective  title,  nor  yet 
establish  one  defectively  set  forth;  Mills  v. 
Brown,  2  Scam.  (111.)  549;    nor  does  it  admit 


any  allegation  int  to  facts  of  which 

the  court  takes  judicial  notice;    1  Dan.  Ch. 
Pr.  5 16 ;   nor  a  fa<  t  m  ly  or  :   ..illy  Im- 

possible;   Louisville  &  N.  R.  Co.  v.  Palm* 
109  U.  S.  244. 

nor  an  averment  contrary   to   t. 
forth   in   the    bill  ;  v. 

Dickerson,  9  N.  J.  Eq.  507,  59  Am.  Di 
nor  inferences  of  other  ;  at- 

ed;     Dike    V.  G  IB.  I,   285;     l 

construction   of  a   statute;    Pennie   v.    !:• 
L32  1  .  S.  404,  10  Sup.  Ct  149,  33  L.  Ed.   126; 
nor   of   any   instrument   set  forth   in   or   an- 
ed  to  the  bill;  Dillon  v.  Barnard,  21  Wall. 
(U.  S.i   430,  22  L.  Ed.  673;  ind 

Co.  v.  Land  Grant  Co.,  139  U.  S.  tap. 

Ct.  656,  35  L.  Ed.  278;  Lea  v.  Robeson,  12 
Cray  (Mass.)  280;  Dillon  v.  Barnard,  1 
Holmes  389,  Fed.  Cas.  No.  3.015;  D.  S.  v. 
Ames,  99  U.  S.  35,  25  L.  Ed.  205.  It  admits 
only  facts  well  pleaded,  but  not  the  conclu- 
sions of  law,  nor  the  correctness  of  the  plead- 
er's opinion  as  to  future  results;  Equitable 
Life  Assur.  Soc.  v.  Brown,  213  I*.  S.  26,  29 
Sup.  Ct  404,  53  L  Ed.  6S2 ;  as  a  rule  of 
evidence  it  was  never  supposed  that  a  de- 
murrer admitted  anything;  Havens  v.  R. 
Co.,  28  Conn.  69. 

As  a  rule  these  limitations  upon  the  effect 
of  a  demurrer  in  equity,  as  admissions,  apply 
equally  at  law. 

Allegations  on  information  and  belief  are 
not  admitted  by  a  demurrer  to  be  facts  ;  Trim- 
ble v.  Sugar  Refining  Co.,  61  N.  J.  Eq.  340.  48 
Atl.  912;  1  Ves.  56;  5  Beav.  620;  Sto.  Eq. 
PI.  §§  241,  256;  Cameron  v.  Abbott,  30  Ala. 
416;  but  in  a  subsequent  case  it  was  held 
that,  although  the  averment  that  complain- 
ant is  informed  and  believes  that  the 
exists  is  insufficient,  he  may  state  the  exist- 
ence of  the  fact  with  the  additional  words 
"as  he  is  informed  and  believes";  Lucas  v. 
Oliver,  34  Ala.  626;  and  see  also  Christian 
v.  Mortgage  Co.,  92  Ala.  130,  9  South.  219 
and  Drennen  v.  Deposit  Co.,  115  Ala.  6 
South.  104,  39  L.  R.  A.  623,  67  Am.  St 
72.  An  allegation  that  the  complainant  "is 
informed  and  believes,  and  therefore  avers," 
is  sufficient;  Wells  v.  Hydraulic  Co.,  30 
Conn.  316,  70  Am.  Dec.  250;  and  SO  is  an  al- 
legation that  he  is  informed  and  believi 
fact  to  be  true,  followed  by  a  statement  that 
he  therefore   charges   the   fa  true, 

where  it  r<  lated  to  matter  necessarily  with- 
in the  knov  the  defendant;  Campbell 
v.  R.  Co..  71   111.  011. 

In  Kansas  v.  Colorado,  1S5  U.  S.  125,  22 
Sup.  Ct  552,  40  L.  Fd.  83S,  the  court  said 
that  "sitting,  as  it  \  o  international, 

as  well  as  a  domestic  tribunal"  they  were 
•'unwilling  in  this  case  to  proceed  on  the 
mere  technical  admissions  made  by  the  de- 
murrer," and  they  accordingly  overruled  it 
without  prejudice  and  forebore  to  proceed 
until  all  the  facts  were  before  the  court  on 
the  evidence. 


DEMURRER 


838 


DEMURRER 


By  Federal  Equity  Rule  29,  33  Sup.  Ct. 
xxvi  (in  effect  February  1,  1913),  demurrers 
(and  pleas)  are  abolished;  every  defence  in 
law  shall  be  made  by  motion  to  dismiss  or  in 
the  answer;  every  such  point  of  law  going 
to  the  whole  or  a  material  part  of  the  cause 
of  action  may  be  disposed  of  before  final 
hearing  at  the  discretion  of  the  court. 

A  demurrer  may  be  either  to  the  relief 
asked  by  the  bill,  or  to  both  the  relief  and 
the  discovery;  Iliginbotham  v.  Burnet,  5 
Johns.  Ch.  (N.  Y.)  184;  Brownell  v.  Curtis, 
10  Paige  Ch.  (N.  T.)  210 ;  but  not  to  the  dis- 
covery alone  where  it  is  merely  incidental  to 
the  relief ;  2  Bro.  C.  C.  123 ;  1  Y.  &  C.  197 ; 
1  S.  &  S.  83.  It  is  said  by  Langdell  (Eq.  PI. 
60)  that  every  proper  demurrer  is  to  relief 
alone;  and  that  while  it  always,  if  well 
taken,  protects  the  defendant  from  giving 
any  discovery,  that  is  a  legal  consequence 
merely.  As  to  exceptions  to  avoid  self-crim- 
ination, see  Sharp  v.  Sharp,  3  Johns.  Ch.  (N. 
Y.)  407 ;  Patterson  v.  Patterson,  2  N.  C.  167 ; 
Wolf  v.  Wolf's  Ex'r,  2  H.  &  G.  (Md.)  382,  18 
Am.  Dec.  313.  If  it  goes  to  the  whole  of 
the  relief,  it  generally  defeats  the  discovery 
if  successful;  '2  Bro.  C.  C.  319;  Souza  v. 
Belcher,  3  Edw.  Ch.  (N.  Y.)  117;  Miller  v. 
Ford,  1  N.  J.  Eq.  358;  Welles  v.  R.  Co.,  Walk. 
Ch.  (Mich.)  35 ;  Pool  v.  Lloyd,  5  Mete.  (Mass.) 
525 ;  otherwise,  if  to  part  only  ;  Ad.  Eq.  331 ; 
Story,  Eq.  PI.  §  545 ;  Brownell  v.  Curtis,  10 
Paige,  Ch.  (N.  Y.)  210. 

It  may  be  brought  either  to  original  or 
supplemental  bills;  and  there  are  peculiar 
causes  of  demurrer  in  the  different  classes 
of  supplemental  bills;  2  Madd.  3S7 ;  4  Sim. 
76;  3  Hare,  476;  3  P.  Wms.  284;  Dias  v. 
Merle,  4  Paige  Ch.  (N.  Y.)  259;  Field  v. 
Schieffelin,  7  Johns.  Ch.  (N.  Y.)  250;  Whit- 
ing v.  Bank,  13  Pet.  (U.  S.)  6,  14,  10  L.  Ed. 
33 ;  ^Story,  Eq.  PI.  §  611. 

Demurrers  are  general,  where  no  particular 
cause  is  assigned  except  the  usual  formulary 
that  there  is  no  equity  in  the  bill,  or  special, 
where  the  particular  defects  are  pointed  out ; 
Story,  Eq.  PI.  §  455 ;  Dan.  Ch.  Pr.  5S6.  Gen- 
eral demurrers  are  used  to  point  out  defects 
of  substance ;  special,  to  point  out  defects  in 
form.  "The  terms  have  a  different  meaning 
[in  equity]  from  what  they  have  at  common 
law;"    Langd.  Eq.  PI.  58. 

The  defendant  may  demur  to  part  of  the 
bill;  Whitbeck  v.  Edgar,  2  Barb.  Ch.  (N.  Y.) 
106 ;  and  plead  or  answer  to  the  residue,  or 
both  plead  and  answer  to  separate  parts 
thereof;  3  P.  Wms.  80;  Clark  v.  Phelps,  6 
Johns.  Ch.  (N.  Y.)  214;  Bull  v.  j^ell,  4  Wis. 
54;  taking  care  so  to  apply  them  to  different 
and  distinct  parts  of  the  bill  that  each  may 
be  consistent  with  the  others ;  3  M.  &  C.  653 ; 
Gray  v.  Regan,  23  Miss.  304 ;  Story,  Eq.  PI.  § 
442;  but  if  it  be  to  the  whole  bill,  and  a 
part  be  good,  the  demurrer  must  be  overrul- 
ed ;  Graves  v.  Hull,  27  Miss.  419 ;  Barnawell 
v.  Threadgill,  40  N.  C.  86 ;    Burns  v.  Hobbs, 


29  Me.  273;  Robinson  v.  Guild,  12  Mete. 
(Mass.)  323;  Gay  v,  Skeen,-  36  W.  Va.  582, 
15  S.  E.  04.  If  it  is  to  the  whole  bill  it  can- 
not be  sustained  if,  for  any  equity  apparent 
in  the  bill,  complainants  are  entitled  to  re- 
lief; George  v.  Banking  Co.,  101  Ala.  607,  14 
South.  752;  Merriam  v.  Pub.  Co.,  43  Fed. 
450.  A  general  demurrer  to  a  bill  must  be 
overruled  unless  it  appears  that  on  no  pos- 
sible state  of  the  evidence  could  a  decree  be 
made;  Failey  v.  Talbee,  55  Fed.  892;  Dar- 
rah  v.  Boyce,  62  Mich.  480,  29  N.  W.  102. 
Demurrers  lie  only  for  matter  apparent  on 
the  face  of  the  bill,  and  not  upon  any  new 
matter  alleged  by  the  defendant;  Beames, 
Ord.  in  Ch.  26 ;  6  Sim.  51 ;  2  Sch.  &  L.  637 ; 
Southern  Life  Ins.  &  Trust  Co.  v.  Lanier,  5 
Fla.  110,  58  Am.  Dec.  44S ;  Black  v.  Shreeve, 
7  N.  J.  Eq.  440;  Hinchman  v.  Kelley,  54 
Fed.  63,  4  C.  C.  A.  189.  A  demurrer  which 
alleges,  as  cause  of  demurrer,  new  matter, 
in  addition  to  what  is  contained  in  the  bill, 
is  termed  a  speaking  demurrer  and  must  be 
overruled;  4  Bro.  C.  C.  254;  4  Drew.  306; 
Brooks  v.  Gibbons,  4  Paige  Ch.  (N.  Y.)  374; 
Ramage  v.  Towles,  85  Ala.  5S9,  5  South.  342 ; 
Stewart  v.  Masterson,  131  U.  S.  151,  9  Sup. 
Ct.  682,  33  L.  Ed.  114;  and  so  also  where 
an  attempt  to  sustain  a  demurrer  is  made  by 
the  averment  of  some  fact  in  an  answer  it  is 
of  the  same  nature  and  is  not  aided  thereby ; 
Kuypers  v.  Reformed  Dutch  Church,  6  Paige 
Ch.  (N.  Y.)  570.  To  constitute  a  speaking 
demurrer,  the  averment  must  be  necessary 
to  support  the  demurrer ;  2  Mol.  295 ;  Sax- 
on v.  Barksdale,  4  Desaus.  (S.  C.)  522 ;  and 
cases  supra;  and  not  mere  immaterial  mat- 
ter which,  though  improper  as  surplusage,  is 
not  fatal  to  the  demurrer,  1  Sim.  5 ;  2  Sim. 
&  Stu.  127. 

The  term  "speaking  demurrer"  originated  with 
Lord  Hardwicke  in  Brownswood  v.  Edwards,  2  Ves. 
243,  245,  and  it  was  used  by  the  reporters  in  the  syl- 
labi of  that  case  and  of  Edsill  v.  Buchanan,  4  Bro. 
C.  C.  254,  nearly  fifty  years  later.  The  editor  of 
Tyler's  edition  of  Mitford,  in  a  note  to  the  word 
in  his  index,  assumes  that  Mitford  ignored  the  term 
because  Lord  Hardwicke  had  used  it  in  ridicule  and 
not  as  a  new  technical  distinction.  However  that 
may  be,  it  seems  to  have  been  too  generally  adopted 
by  courts  and  text-writers  to  be  now  disregarded  as 
an  apt  characterization  of  what  it  was  meant  to 
express. 

A  defendant  may  at  the  hearing  of  a  de- 
murrer orally  assign  another  cause,  different 
from  or  in  addition  to  those  on  the  record, 
which  is  termed  a  demurrer  ore  tenus,  and 
may  be  sustained,  although  that  on  the  rec- 
ord is  overruled;  Brinkerhoff  v.  Brown,  6 
Johns.  Ch.  (N.  Y.)  119;  Wright  v.  Dame,  1 
Mete.  (Mass.)  237;  Chase  v.  Searles,  45  N. 
H.  512;  8  Yes.  405 ;  as,  on  demurrer  to  gen- 
eral relief,  the  objection  of  non-joinder  may 
be  made  ore  tenus;  Garlick  v.  Strong,  3 
Paige  Ch.  440 ;  6  Ves.  779.  Causes  of  demur- 
rer ore  tenus  must  be  coextensive  with  those 
on  the  record,  and  if  the  latter  apply  to  the 
whole  bill,  the  former  will  not  be  allowed  to 
part  of  it;   1  De  G.,  J.  &  S.  3S;  and  a  cause 


DEMURRER 


839 


DEMURRER 


overruled  cannot  be  repeated  ore  tonus;  1 
Anst.  1;  but  see  12  \Y.  EL  394;  nor,  after 
demurrer  to  tbe  whole  bill  has  been  over- 
ruled, can  part  of  it  be  demurred  to  ore 
tenus;  2  Yo.  &  J.  490;  Clark  v.  Davis,  Star- 
ring. Cli.   i  Mich,  i   227. 

Demurrers  are  not  applicable  to  pleas  or 
answers.  If  a  plea  or  answer  Is  bad  in  sub- 
stance, it  may  be  shown  on  bearing;  and  if 
tlic  answer  is  Insuffieienl  in  form,  exceptions 
should  be  filed;  Story,  Eq.  PI.  g§  45G 
I. angi I.  Eq.  PI.  58;  Winters  v.  I 
Miss.  341  ;   Travers  v.  Ross,  14  X.  .1.  E  i.  254. 

If  the  bill  contains  an  allegation  of  fraud, 
it  must  lie  denied  by  answer,  whatever  de- 
fence may  be  adopted  to  ether  parts  of  the 
bill;  because  fraud  uives  jurisdiction  t<>  tin- 
court  and  lays  a  foundation  for  relief;  hence 
a  general  demurrei  to  a  hill  containing 
an  allegation  cannot  be  allowed;  Xiles  v. 
Anderson,  5  How.   (Miss.)  366. 

Demurrers  to  relief  are  usually  brought 
for  causes  relating  to  the  jurisdiction,  as 
that  the  subject  is  not  cognizable  by  any 
court,  as  in  some  cases  under  political  trea- 
ties; 1  Yes.  371;  Foster  v.  Neilson,  ■_'  Pet 
(U.  S.i  253,  7  L.  Ed.  415;  but  see  Cherokee 
Nation  v.  Georgia,  5  Pet.  (U.  S.)  1,  S  I*  Ed. 
25;  U.  S.  v.  Clarke,  S  Pet.  (U.  S.)  436,  8  Ll 
Ed.  1001;  Martin  v.  Hunter,  1  Wheat.  (U. 
S.)  304,  4  L.  Ed.  97;  Carneal  v.  Banks,  10 
Wheat.  (U.  S.)  181,  6  L.  Ed.  297;  Gordon  v. 
Kerr,  1  Wash.  C.  C.  322,  Fed.  Cas.  No.  5,611. 

It  is  frequently  said  that  by  demurring  to 
a  bill  in  chancery,  for  want  of  equity,  the 
defendants  submit  to  the  jurisdiction  of  the 
court,  as  if  that  question  were  to  be  raised 
it  should  have  been  presented  by  plea;  Rank 
of  Bellows  Falls  v.  R.  Co.,  28  Vt.  470;  1  Atk. 
543,  where  Lord  Hardwicke  is  repres<  ated  as 
having  said:  "The  defendant  should  not 
have  demurred  for  want  of  jurisdiction,  for 
a  demurrer  is  always  in  bar,  and  goes  to  the 
merits  of  the  case ;  and  therefore  it  is  in- 
formal and  improper  in  that  respect,  for  he 
should  have  pleaded  to  the  jurisdiction." 
In  a  note  to  section  450  of  Sto.  Eq.  PI.  after 
quoting  these  words  it  is  said:  '"This  lan- 
guage is  loose  and  inaccurate.  If  the  court 
has  no  jurisdiction,  the  objection  may  be 
taken  by  demurrer,  if  it  is  apparent  on  the 
face  of  the  bill;  Mitf.  Eq.  PL  by  Jeremy, 
110,  210;  2  Sim.  &  Stu.  431.  And  a  demur- 
rer may  be  for  causes  not  going  to  the  mer- 
its." This  note  in  Sumner's  edition,  the  first 
after  Judge  story's  death,  appears  from  the 
editor's  prefatory  note  to  be  the  author's 
own  comment.  Such  objection  on  demurrer 
is  allowed  in  the  federal  courts;  Ober  v. 
Gallagher,  93  U.  S.  199,  2:'.  L.  Ed.  829;  Peale 
v.  Coal  Co.,  172  Fed.  639;  but  if  one  cause 
assigned  goes  to  the  merits  if  operates  as  a 
waiver  of  the  objection  to  the  jurisdiction  ;  id. 

In  some  states,  where  the  jurisdiction  in 
equity  is  more  or  less  restricted,  it  is  held 
that  the  question  of  jurisdiction  may  be 
raised  by  general  demurrer ;    Jones  v.  New- 


hall,   11"   M  n.  Rep.  97 ;    Earle 

v.  Humphrey,  121   M 

and  that  it  i-^  I  be   pi  .>f  raising 

it  :    Pennsylvania   R.  Co.  v.  B  I  Pa. 

589,  59  Atl.   100;    Love  v.  B 

480,  62  Atl.   1085. 

So  demurrers  to  relief  will  lie 
cases  of  confiscation ;  3Ves.  424; 
see  Ware  v.  Ilylton.  :;  Dall.   i  !  lb. 

Ed.  568  :  and  qu<  si  ions  i  I 
Eq.   PL  347;    1   Ves.  4 16 :    as  to  Ian    In  the 

United    States,    see    " 

(U.  S.  i..  Ed.  181 ;  X.  Y.  ' 

cut,  4  I 'all.   (  C  S.i   ::.  1  I..  Ed.  71.".;    Si 

.   .",    Pet    I 0.   s.i    21  i.  8  L.  Ed.   127; 
State  v.  State,  n  Pet.  (U.  s.i  210,  10  L.  Ed. 
-123;   or  thai  it  is  not  cognizable  by  a 
of  equity;    Taylor  v.   Buchan,   16  Ga.  541; 
i  (roves'  Heirs  v.  I'u'  '  Am. 

!  17 ;    Box  v.  Stanford,  13  E  &  M. 

(Miss,  i  93,51  Am.  Dec.  112;  L.  R.  8  Ch.  App. 
369;  '//■  timt  some  other  court  of  equity  has 
jurisdiction  properly;  Trustees  of  Philadel- 
phia I'.aptist  Ass'n  v.   Hart's  Kx'rs,  4  V 

.i  1,  4  L.  Ed.  499;  Mays  v.  Taylor,  7 
Ga.  21.".:  l  Ves.  203;  or  ti  .,'  some  other  court 
has  jurisdiction  properly;  Bingham  v.  ' 
3  Dall.  (U.  S.)  382,  1  L.  Ed.  646;  Wallace 
v.  Fletcher,  30  X.  II.  4ii:  Louisville,  C.  & 
C.  R.  Co.  v.  Letsou,  2  Bow.  if.  s.i  497,  11 
L.  Ed.  353;    to  the  p  i  that  the  plain- 

tiff is  not  entitled  to  sue,  by  reason  of  per- 
sonal disal  ility,  as  infancy,  idiocy,  etc.  . 
377;   bankruptcy  and  assignment  :    1  Y.  &  C. 
172;    or  has  no  title  to  sue  in  the  chai 
in  which   he  sues;    2  P.    Wins.  ::<''.>;     Living- 
ston v.  Lynch,  4  Johns.  Ch.  .">7"> ;    or  that  the 
relief  prayed  is  barred  by  limitation  : 
cantile   Nat.   Bank    v  ter,   101    I".    S. 

567,  2."  L.  Ed.  815;  Parmelee  v.  Prii 
111.  544,  70  N.  E.  72.".;  Nash  v.  Engalls,  101 
Fed.  645;  or  a  portion  of  it;  City  of  Mem- 
phis v.  Cable  Co..  145  Fed.  602,  76  0.  C.  A. 
292;  to  the  substance  of  the  bill,  as  that  the 
matter  is  !•,■>  trivial;  Moore  v.  Lyttle,  4 
Johns.  Ch.  (N.  I.)  183;  Carr  v.  [glehart,  3 
Ohio  St.  457  :    l  9;   that  the  plaintiff 

has  no  interest  in  the  matter;    Mitf.  Eq.  PL 
154;    2  s.   &   s.  592;    Long  v.    fcfajestre,    l 
Johns.  Ch.   i  X.  Y.i   305;    Baskell  v.   Hilton, 
:;<>  Me.  419  :    Barr  v.  Clayton,  29  W.  7a 
1 1  s.  E.  899  :    Keysi  c  v.  -7  Va.  249, 

1.2   S.    K.   406;    or   that  the  defendant   has   no 
such  interest;  2  Bro.  C.  C.  332;  5  Madd.  19; 
Wakeman  v.  Bailey,  3  Barb.  Ch.  (N.  ST.)  485; 
De  Wolf  v.  Johnson,  10  Wheat   (U.  s.i   384, 
6  L.  Ed.  343  :    or  that  the  bill  is  /■ 
penalty;    4  Bro.  Ch.   134;    to  the  franu    and 
form  of  the  bill,  as  that  there  is  a  defect  or 
want  Of  form  ;    Mitf.  Eq.  PL  2'";;    5  R.U 
Dlrld  v.  Papln,  11  Mo.  42;    or  that  the  bill  is 
multifarious;     Story.    Eq.    PL    5    530,    n. ;     2 
S.  &  s.  79;  Layton  v.  state.  4  Earring. 
0;    White   v.   Curtis.   2   Gray    (Mass.)    471; 
Oliver    v.    Piatt.    3    How.    (U.    S.)    412.    11   L. 
Ed.  622;   McDermott  v.  BfcGown,  4  Edw.  (N. 
Y.)  5'J2;    that  there  is  a  want  or  misjoinder 


DEMURRER 


840 


DEMURRER 


of  plaintiffs;  1  P.  Wms.  428;  Mitchell  v. 
Lenox,  2  Paige,  Ch.  (N.  Y.)  281;  Wormley 
v.  Wormley,  8  Wheat.  (U.  S.)  451,  5  L.  Ed. 
651;  Southern  Life  Ins.  &  Trust  Co.  v. 
Lanier,  5  Fla.  110,  58  Am.  Dec.  448;  White 
v.  Curtis,  2  Gray  (Mass.)  407;  Betton  v. 
Williams,  4  Fla.  11 ;  but  only  when  it  ap- 
pears from  the  facts  disclosed  by  the  bill ; 
Farson  v.  Sioux  City,  106  Fed.  278 ;  Walling 
v.  Thomas,  133  Ala.  426,  31  South.  982;  for 
a  misjoinder  of  parties  defendant  where 
those  only  can  demur  who  are  improperly 
joined ;  Bigelow  v.  Sanford,  98  Mich.  657,  57 
N.  W.  1037;  or  where  laches  affirmatively 
appear  on  the  face  of  a  bill ;  Hinchman  v. 
Kelley,  54  Fed.  63,  4  C.  C.  A.  189 ;  Thurmond 
v.  Ry.  Co.,  140  Fed.  697,  72  C.  C.  A.  191; 
Tetrault  v.  Fournier,  187  Mass.  58,  72  N.  E. 
351;  Thompson  v.  Iron  Co.,  41  W.  Va.  574, 
23  S.  E.  795  ;  Hawley  v.  Pound,  76  Neb.  130, 
106  N.  W.  458 ;  or  staleness  of  claim ;  Hub- 
bard v.  Manhattan  Trust  Co.,  87  Fed.  51,  30 
C.  C.  A.  520;  but  only  when  it  appears  on 
the  face  of  the  bill ;  Marsh  v.  Marsh,  78  Vt. 
399,  63  Atl.  159;  but  laches  as  an  equitable 
defence  cannot  be  raised  on  demurrer ;  Drake 
v.  Wild,  65  Vt.  611,  27  Atl.  427;  Gleason  v. 
Carpenter,  74  Vt  399,  52  Atl.  906. 

A  demurrer  to  an  answer  or  plea  in  equity 
is  improper ;  Pennsylvania  Co.  v.  Bay,  138 
Fed.  203;  and  is  not  permitted;  Stokes  v. 
Farnsworth,  99  Fed.  836.  The  sufficiency  of 
an  answer  is  properly  questioned  by  setting 
the  cause  down  for  hearing  on  bill  and  an- 
swer; Barrett  v.  Twin  City  Power  Co.,  Ill 
Fed.  45 ;  or  of  a  plea  by  setting  it  down  for 
argument;  Roundtree  v.  Gordon,  8  Mo.  19; 
but  a  demurrer  to  an  answer  filed  and  not 
objected  to  has  been  treated  as  an  applica- 
tion to  set  the  cause  down  on  bill  and  an- 
swer; Grether  v.  Wright,  75  Fed.  742,  23 
C.  C.  A.  498. 

Demurrers  to  discovery  may  be  brought  for 
most  of  the  above  causes ;  12  Beav.  423 ; 
Ocean  Ins.  Co.  v.  Fields,  2  Sto.  59,  Fed.  Cas. 
No.  10,406;  and,  generally,  that  the  plaintiff 
has  no  right  to  demand  the  discovery  asked 
for,  either  in  whole  or  in  part;  8  Ves.  398; 
2  Russ.  564;  or  to  ask  it  of  the  defendant; 
Story,  Eq.  PI.  §  570.  "A  demurrer  to  dis- 
covery is  not,  in  its  nature,  a  pleading  at 
all,  but  a  mere  statement  in  writing  that 
the  defendant  refuses  to  answer  certain  al- 
legations or  charges  in  the  bill,  for  reasons 
which  appear  upon  the  face  of  the  bill,  and 
which  the  demurrer  points  out."  .  Langd.  Eq. 
PI.  61.     See  Discovery. 

The  effect  of  a  demurrer  when  allowed  is 
to  put  an  end  to  the  suit,  unless  it  is  con- 
fined to  a  part  of  the  bill,  or  the  court  gives 
the  plaintiff  leave  to  amend ;  Fleece  v.  Rus- 
sell, 13  111.  31 ;  it  is  within  the  discretion  of 
the  court  whether  the  defendant  will  be  ruled 
to  answer  after  overruling  a  demurrer;  and 
it  may  enter  a  decree  against  him  at  once,  or 
hear  evidence,  or  refer  to  a  master  to  take 
evidence  before  entering  a  decree;   Iglehart 


v.  Miller,  41  111.  App.  439;  Bruschke  v.  Der 
Nord  Chicago  Schuetzen  Verein,  145  111.  433, 
34  N.  E.  417.  If  overruled,  the  defendant 
must  make  a  fresh  defence  by  answer;  Cole 
County  v.  Angney,  12  Mo.  132 ;  unless  he 
obtain  permission  to  put  in  a  plea;  Ad.  Eq. 
336.  Since,  as  shown  supra,  the  demurrer 
does  not  admit  the  truth  of  the  bill,  but  only 
assumes  it  for  the  sake  of  argument,  if  the 
demurrer  is  overruled  the  plaintiff  must  pro- 
ceed to  prove  his  bill;  Langd.  Eq.  PI.  104. 
The  court  will  sometimes  disallow  the  de- 
murrer without  deciding  that  the  bill  is  good, 
reserving  that  question  till  the  hearing ;  id. 
106. 

Equity  rules  usually  provide  for  a  certifi- 
cate of  the  opinion  of  counsel  that  the  demur- 
rer is  well  founded  in  law,  and  an  affidavit 
by  defendant  that  it  is  not  interposed  for  de- 
lay. 

At  Law.  A  general  demurrer  is  one  which 
excepts  to  the  sufficiency  of  a  previous  plead- 
ing in  general  terms,  without  showing  spe- 
cifically the  nature  of  the  objection  ;  and  such 
demurrer  is  sufficient  when  the  objection  is 
on  matter  of  substance;  Steph.  PI.  159;  Co. 
Litt.  72  a;  Flanagan  v.  Ins.  Co.,  25  N.  J.  L. 
506;  Gordon  v.  State,  11  Ark.  12;  Coffin  v. 
Knott,  2  G.  Greene  (la.)  582,  52  Am.  Dec. 
537;  Tyler  v.  Canaday,  2  Barb.  (N.  Y.)  160; 
Cheek  v.  Herndon,  82  Tex.  146,  17  S.  W.  703. 
A  court,  after  overruling  a  general  demurrer 
to  a  complaint  on  the  ground  that  it  does 
not  state  a  cause  of  action,  may  in  its  dis- 
cretion enter  final  judgment  on  the  demur- 
rer; Alley  v.  Nott,  111  U.  S.  472,  4  Sup.  Ct. 
495,  28  L.  Ed.  491. 

A  special  demurrer  is  one  which  excepts 
to  the  sufficiency  of  the  pleadings  on  the 
opposite  side,  and  shows  specifically  the  na- 
ture of  the  objection  and  the  particular 
ground  of  exception;  Co.  Litt.  72  a.  An  ob- 
jection to  a  complaint,  on  the  ground  of 
ambiguity  or  uncertainty,  can  be  taken  only 
by  special  demurrer ;  Kirsch  v.  Derby,  96 
Cal.  002,  31  Pac.  507;  as  must  be  a  demurrer 
to  a  plea  on  the  ground  of  duplicity ;  Willey 
v.  Carpenter,  64  Vt.  212,  23  Atl.  630,  15  L.  R 
A.  853 ;  but  see  Corpening  v.  Worthington  & 
Co.,  99  Ala.  541,  12  South.  426. 

It  is  necessary  where  the  objection  is  to 
the  form,  by  the  statutes  27  Eliz.  c.  5  and 
4  Anne,  c.  16;  Blakeney  v.  Ferguson,  18  Ark. 
347 ;  Mitchell  v.  Williamson,  6  Md.  210 ;  Lyon 
v.  Fish,  20  Ohio,  100.  Under  a  special  demur- 
rer the  party  may,  on  the  argument,  not  only 
take  advantage  of  the  particular  faults 
which  his  demurrer  specifies,  but  also  of  all 
objections  in  substance. 

It  is  not  enough  that  a  special  demurrer 
object  in  general  terms,  that  the  pleading 
is  "uncertain,  defective,  and  informal,"  or 
the  like,  but  it  is  necessary  to  show  in  what 
respect  it  is  uncertain,  defective,  and  infor- 
mal; 1  Wms.  Saund.  161,  n.  1,  337  6,  n.  3; 
Steph.  PI.  159,  161 ;   1  Chit.  PI.  642. 

A  demurrer  may  be  for  insufficiency  either 


DEMURRER 


841 


UURER 


in  substance  or  in  form;    that  is,  it  may  be 
either   on    the  ground   that   the  case   I 
by  the  opposite  party  is  essentially  insuffi- 
cient, or  on  the  ground  that  it  is  stated   In 
an  inartificial  manner;  Hob.  164;  Richmond 
v.  Brookings,  4S  Fed.  241.     Hut  Buch  a  de- 
murrer does  not  raise  the  question  of  the  ju- 
risdiction of  the  court;   Saxton  v.  Beiberling, 
48  Ohio  St.  554,  29  N.  E.  179.     It  lies  to  any 
of  the  pleadings,  except  that  there  may  not 
be  a  demurrer  to  a  demurrer;   Salk.  219  :   Ba- 
con,  Abr.  Pleas  (N  2).    But  it  will  not  lie  to 
a  supplemental  complaint;  Lewis  v.  Rowland, 
131  Ind.  37,  30  N.  E.  796;    while  it  will  to  a 
supplemental  answer;  Eckert  v.  Binkley,  134 
Ind.  614,  33  N.  E.  619,  34  N.  E.  441.    Demur- 
rer may  he  to  the  whole  or  a   part  of  the 
pleading;    but  if  to  the  whole,  and  a  part  be 
good,  the  demurrer  will  be  overruled  ;  13 
76;    Backus  v.  Richardson,  5  Johns.   (N.  Y.) 
476;  Brownv.Castles.il  Cush.  (Mass.)  34S; 
Tucker    v.    Hart,    23    Miss.    54S;    Brown    v. 
Duchesne,  2  Curt.  C.  C.  97,  Fed.  Cas.  No.  2,- 
003;  Walton  v.  Stephenson,  14  111.  77;  Scott 
v.  State.  2  Md.  284;    Pinkum  v.  City  of  Eau 
Claire,  81  Wis.  301,  51  N.  W.  .".();    Alabama 
Great  Southern  R.  Co.  v.  Tapia,  94  Ala.  226, 
10  South.  230.     But  see  Barhee  v.  Road  Co., 
6  Fla.  262;    Whiting  v.  Heslep,  4  Cal.   327; 
State    v.    Clark,   9    Ind.   241;     Henderson    v. 
Stringer,  6  Gratt.  (Va.)  130;  Com.  v.  Hughes, 
8  B.  Monr.    (Ky.)   400.     The  objection  must 
appear  on  the  face  of  the  pleadings;  2  Saund. 
364;    Town  of  Hartland  v.  Town  of  Windsor, 
29  Vt.  354 ;   or  upon  oyer  of  some  instrument 
defectively   set  forth  therein;    2   Saund.   60, 
n. ;    Williams  v.  Boyle.  1  Misc.  364,  20  N.  Y. 
Supp.  720.    A  joint  demurrer  by  two  defend- 
ants to  a  declaration  for  want  of  a  cause  of 
action   should   be   overruled   if   the  declara- 
tion sets  forth  a  cause  of  action  as  to  either 
of  them  ;    May  v.  Jones,  88  Ga.  308.  14  S.  E. 
552,   15  L.   R.  A.  637,   30  Am.    St.   Rep.   154; 
Lancaster  v.  Roberts,  144  111.  213,  33  N.  E. 
27. 

A  demurrer  does  not  reach  vagueness  and 
uncertainty  in  a  complaint,  but  they  musl 
be  remedied  by  a  motion  to  make  more  spe- 
cific and  certain;  Sheeks  v.  Erwin,  130  Ind. 
31,  29  N.  E.  11;  Sluyter  v.  Ins.  Co.,  3  Ind. 
App.  312.  29  N.  E.  608;  Chamberlain  v.  Men- 
sing,  51  Fed.  669. 

Where  the  want  of  jurisdiction  in  a  fed- 
eral court  is  apparent  on  the  face  of  the 
petition,  declaration  or  complaint,  it  may  be 
taken  advantage  of  by  demurrer;  Southern 
P.  Co.  v.  Denton,  1  16  IT.  S.  202,  13  Sup.  Ct.  4  I. 
30  L.  Ed.  942;  Hagstoz  v.  Ins.  Co.,  179  Fed. 
569  ;  and  the  same  is  true  of  the  statute  of 
limitations;  Wood  v.  Carpenter,  101  U.  S. 
135,  25  L.  Ed.  S07 ;  Kendall  v.  U.  S.,  107  U. 
S.  123,  2  Sup.  Ct.  277',  27  L.  Ed.  437. 

For  the  various  and  numerous  causes  of 
demurrer,  reference  must  be  had  to  the  law 
of  each  state. 

As  to  the  effect  of  a  demurrer.  It  admits 
all  such  matters  of  fact  as  are  sufficiently 


pleaded  ;   Com.  Dig  it. 

Ireland,  4  la.  8, 

m.  Dec.  528;   Piersoo  v.  Wallace,  7  Ark. 
Soul.'  v.  S(  attle,  6  Wi  "ac 

384,  10S0;   Jorgensen  v.  Ministers  of  Church, 
7  Misc.   I,  1^7  N.  V.  Su; 

to  test  the  sufficiency  of  the  aid- 

ing both  as  to   form   and   b  I    it 

was  resorted  to  by  either  party  who 
that  the  pleading  of  the  other  party  v.. 
sufficient  either  because  the  declaration  did 
not  show  a  good  cause  of  action  or  the  i 
did  not  set  up  a  legal  defence;    hut  it  d< 
not  admit  mere  epithets  charging  fraud  and 
allegations  of  legal  conclusions;    Kent  v.  R. 

,V-   I.   CO.,    Ml    U.   S.   75,   12  Sup.   '  ' 

Ed.  352  ;   nor  an  erroneous  averment  of  law  ; 

hhkerson  v.  Winslow,  97  Ala.  491,  11  South. 

918. 

The    demurrer   reaches   back   to   the   first 
error  in  the  pleadimr;    Terry  v.  Tubman,  92 
U.  S.  156,  23  L.  Ed.  537;    but  not  where  the 
defect  is  of  form  and  not  of  substan  e;    Bal- 
timore &  O.  R.   Co.  v.   Harris.   12   Wall.    (U. 
S.)  65,  20  L.  Ed.  354.    On  demurrer  the  court 
consider   the    whole   record,   and   give  Judg- 
ment  according   to    the   legal    right    for   the 
party  who  on  the  whole  seems  best  entitled 
to  it;  4  East  502;   Pickett    v.   Bank.   8  Ark. 
224;   Wales  v.  Lyon,  2  Mich.  270;  Tow 
v.  Jemison,  7  How.    (U.   S.)    706,   12  L.   Ed. 
880;    Shaw  v.  White,  28  Ala.  637;    Ch 
v.  Simes,  31  N.  H.  22;  Freeman  v.  Freeman, 
39  Me.  426;   Peoria  &  O.  R.  Co.  v.  Neill,  10 
111.  269.     For  example,  on  a  demurrer  to  the 
replication,    if   the   court  think   the   r. 
tion   bad,   but  perceive   substantial   fault   in 
the  plea,   they   will   give  judgment,   not   foi 
the  defendant,  but  for  the  plaintiff;  2  Wils. 
150;  Townsend   v.  Jemison,   7   How.   (U.    S.) 
706,  12  L.  Ed.  880;  provided  the  declaration 
be  good;   but  if  the  declaration  also   be  bad 
in  substance,  then,  upon  the  same  principle. 
judgment  would  be  given  for  the  defendant: 
29  a.     The  court  will  not  look  back  into 
the  record  to  adjudge  in  favor  of  an  appar- 
ent right  in  the  plaintiff,  unless  the  plaintiff 
have     himself     put     his     action     upon     that 
ground;  5  P..  &  Aid.  507.    Iff  however,  the 
plaintiff  demur  to  a  plea  in  abatement,  and 
the  court  decide  against  the  plea,  they  will 
give    judgment    of   respondeat    ouster,    with- 
out regard  to  any  defect  in  the  declaration; 
Carth.  172;  Ellis  v.  Ellis,  4  R.  1.  11":  Knott 
v.  Clements,  13  Ark.  335;  Ryan  v.  May.  14 
111.   I'J.     A  party  waives  his  demurrer  b 
calling  for  action  thereon;  Phoenix  li 
v.  Boren,  B3  Tex.  97,  is  S.  W.  484. 

In  Practice.  Demurrer  upon  evidence  Is  a 
declaration  that  the  party  making  it.  gener- 
ally the  defendant,  will  not  proceed,  because 
the  evidence  offered  on  the  other  side  is  not 
sufficient  to  maintain  the  issue;  Shaw  v. 
White,  28  Ala.  637. 

It  is  said  that,  although  generally  super- 
seded by  motion  for  nonsuit,  binding  instruc- 
tions, or  to  exclude  the  evidence  from   the 


DEMURRER 


842 


DEMURRER 


jury,  the  practice  is  recognized  "in  nearly 
half  the  states"  in  civil  cases;  15  H.  L.  Rev. 
738.  Nevertheless,  the  proceeding  is  so  hedg- 
ed about  with  technicalities  that  it  is  infre- 
quently resorted  to  and  when  invoked  has 
been  the  subject  of  the  continuing  disap- 
proval of  the  courts  ever  since  it  was  said 
by  Chief  Justice  Tilghinan  that  "he  who  de- 
murs to  parol  evidence  engages  in  an  uphill 
business";  Dickey  v.  Sehreider,  3  S.  &  R. 
(Pa.)  416;  and  Emery,  J.,  characterized  it 
asi  "unusual  and  antiquated  practice" ;  State 
v.  Soper,  16  Me.  293,  33  Am.  Dec.  665.  In 
1S59  it  had  long  been  out  of  use  in  New  York 
and  refusal  to  allow  it  was  not  cause  of  ex- 
ception;  Colegrove  v.  R.  Co.,  20  N.  Y.  492, 
75  Am.  Dec.  418. 

Upon  joinder  by  the  opposite  party,  the 
jury  is  generally  discharged  from  giving  any 
verdict ;  1  Archb.  Pr.  186;  and  the  demurrer 
being  entered  on  record  is  afterwards  argued 
and  decided  by  the  court  in  banc;  and  the 
judgment  there  given  upon  it  may  ultimately 
be  brought  before  a  court  of  error;  Andr. 
Steph.  PI.  180.  It  admits  the  truth  of  the 
evidence  given  and  the  legal  deductions 
therefrom ;  Davis  v.  Steiner,  14  Pa.  275,  53 
Am.  Dec.  547 ;  Hopkins  v.  Bowers,  111  N.  C. 
175,  16  S.  E.  1;  Doe  v.  Rue,  4  Blackf.  (Ind.) 
263,  29  Am.  Dec.  368;  but  only  such  infer- 
ences as  the  jury  might  have  drawn ;  Union 
S.  S.  Co.  v.  Nottinghams,  17  Gratt.  (Va.)  115, 
91  Am.  Dec.  378;  MacKinley  v.  McGregor,  3 
Whart.  (Pa.)  369,  31  Am.  Dec.  522.  An  of- 
fer, in  a  civil  case,  so  to  demur,  is  not  stricti 
juris,  but  is  allowable  only  in  the  discretion 
of  the  court  and  should  be  refused  if  there 
is  not  colorable  cause  for  it ;  Jones  v.  Ireland, 
4  la.  63 ;  it  may  be  tendered  by  either  party 
and  the  court  may  compel  a  joinder,  but  the 
power  should  be  exercised  with  discretion, 
and  when  exercised,  the  action  of  the  court 
is  open  to  review ;  Eubank's  Ex'r  v.  Smith, 
77  Va.  206.  See  Plant  v.  Edwards,  85  Ind. 
588.  All  facts  proved  and  legitimate  infer- 
ences therefrom  must  be  admitted;  Hopkins 
v.  R.  R.,  96  Tenn.  409,  34  S.  W.  1029,  32  L. 
R.  A.  354 ;  Illinois  Cent.  R.  Co.  v.  Brown,  96 
Tenn.  559,  35  S.  W.  560;  and  until  the  party 
demurring  does  this,  the  party  offering  the 
evidence  is  not  required  to'join  in  demurrer; 

2  H.  Bl.  189  (where  the  subject  and  the  prac- 
tice thereon  was  elaborately  considered  in 
the  House  of  Lords)  ;  and  if  the  evidence  is 
prima  fade  insufficient  the  demurrer  is  sus- 
tained; State  v.  Goetz,  131  Mo.  675,  33  S. 
W.  161;  otherwise  if  there  is  some  evidence 
on  each  material  point ;  Hagan  v.  B'l'g  & 
Loan  Ass'n,  2  Kan.  App.  711,  43  Pac.  1138; 
Cherokee  &  P.  Coal  &  Mining  Co.  v.  Britton, 

3  Kan.  App.  292,  45  Pac.  100.  "Since  it  was 
determined  that  a  demurrer  to  evidence  could 
not  be  resorted  to  as  a  matter  of  right,  it 
has  fallen  into  disuse ;  and  as  long  ago  as 
1813  (Young  v.  Black,  7  Cra.  (U.  S.)  565,  3 
L.  Ed.  440)  it  was  regarded  as  an  unusual 
proceeding,  and  one  to  be  allowed  or  denied 


by  the  court  in  the  exercise  of  a  sound  dis- 
cretion under  all  the  circumstances  of  the 
case;"  Suydam  v.  Williamson,  20  How.  (U. 
S.)  427,  436,  15  L.  Ed.  978.  A  bill  of  ex- 
ceptions is  more  comprehensive,  in  that  it 
permits  the  review  of  rulings  upon  the  ad- 
mission of  evidence,  objection  to  which  is 
waived  by  the  demurrer  ;  id.  An  offer  of  an 
instruction  to  find  for  the  defendant,  sub- 
mitted at  the  close  of  the'  plaintiff's  evidence, 
is  equivalent  to  a  demurrer  to  the  evidence; 
Mitchell  v.  Ry.  Co.,  82  Mo.  106 ;  Baker  "v. 
State,  31  Ohio  St.  314. 

The  result  of  a  demurrer  to  evidence  must 
be  final  judgment  for  one  party  or  the  other 
— for  the  defendant  if  his  demurrer  were 
sustained  or  for  the  plaintiff  if  it  were  over- 
ruled, and  in  the  latter  case  judgment  would 
be  given  on  the  verdict  if  a  conditional  one 
had  been  taken,  or  if  not,  a  writ  of  inquiry 
would  issue  to  assess  the  damages.  This 
practice  appears  from  the  cases  already  cited 
and  is  well  stated  in  Obaugh  v.  Finn,  4  Ark. 
110,  37  Am.  Dec.  773,  where  it  was  held  to 
be  error  to  retain  the  jury  after  joinder  in 
demurrer  to  evidence  and  to  submit  the  case 
to  the  jury  after  overruling  the  demurrer.  It 
would  seem  therefore  that  after  that  has 
been  done  the  defendant  demurrant  is  pre- 
cluded from  introducing  evidence;  State  v. 
Groves,  119  N.  C.  822,  25  S.  E.  819 ;  although 
it  appears  to  have  been  done  in  an  Oklahoma 
case  in  which,  on  writ  of  error,  the  United 
States  Supreme  Court  held  ■  that  where  the 
defendant,  after  his  demurrer  to  the  evidence 
was  overruled,  had  introduced  evidence  in 
his  own  behalf,  he  waived  any  supposed  er- 
ror in  the  decision  on  the  demurrer;  Mc- 
Cabe  &  Steen  Const.  Co.  v.  Wilson,  209  U.  S. 
275,  28  Sup.  Ct.  558,  52  L.  Ed.  7S8.  And  it 
was  also  done  in  Oglesby  v.  R.  Co.,  177  Mo. 
272,  76  S.  W.  623,  where,  after  a  demurrer  to 
evidence  was  overruled,  the  defendant  put  in 
its  testimony,  which,  with  the  plaintiff's,  was 
considered  as  a  whole  and  reviewed  on  ap- 
peal, and  the  court  declined  to  review  the 
judgment  that  the  case  was  one  to  go  to  the 
jury. 

In  criminal  trials  it  is  entirely  discretion- 
ary with  the  court  whether  it  will  entertain 
a  demurrer  to  the  evidence,  even  though 
counsel  for  the  prisoner  and  state  should 
both  consent  to  it ;  Duncan  v.  State,  29  Fla. 
439,  10  South.  815.  In  some  courts,  the  pro- 
priety of  the  proceeding,  in  criminal  cases, 
is  denied;  Nelson  v.  State,  47  Miss.  621 ;  Mil- 
ler v.  State,  79  Ind.  19S;  Baker  v.  State,  31 
Ohio  St.  314;  Doss  v.  Com.,  1  Gratt  (Va.) 
557 ;  State  v.  Alderton,  50  W.  Va.  101,  40  S. 
E.  350 ;  while  in  others  it  is  allowed  but  not 
encouraged;  Martin  v.  State,  62  Ala.  240; 
State  v.  Soper,  16  Me.  293,  33  Am.  Dec.  u<:K 
If  allowed,  it  must  state  facts,  and  not  evi- 
dence tending  to  prove  those  facts;  Crowe 
v.  People,  92  111.  231  (and  this  applies  also 
in  civil  causes;  Story,  J.,  in  Fowle  v.  Alex- 
andria, 11  Wheat  [U.  S.]  320,  6  L.  Ed.  4S4)  ; 


DEMURRER 


843 


DENIZA 


and  If  it  is  resorted  to  by  an  accused,  and 
overruled,   he  cannot   introduce  further  evi- 
dence to  controvert  that  which   be  has  ad- 
mitted ;    state  v.  Groves,   L19  X.  i 
S.  E.  819. 

A  demurrer  t  Idence  in  equity  has 

the  same  effect  as  at  law,  and  concedes  ev- 
ery fact  which  Buch  evidence  tend.-  to  prove, 
and  every  Inference  fairly  deducible  from 
the  facts  proved;  Healey  v.  Simpson,  113 
Mo.  340,  20  S.  W.  881. 

For  a  full  discussion  of  the  subject  see  32 
L.  R.  A.  354 

Demurrer  to  intei  t  is  the  r 

which  a  witness  tenders  for  not  answering 
a   particular  question   In   inl  ries;   - 

Swanst.  194.  It  is  not,  strictly  speaking,  a 
demurrer,  except  in  the  po]  ular  sense  of  the 
word;  Gresl.  Eq.  Ev.  61.  The  court  are  ju- 
dicially to  determine  its  validity.  The  wit- 
ness must  state  his  objection  very  carefully: 
for  these  demurrers  are  held  to  strict  rules, 
and  are  readily  overruled  if  they  cover  too 
much;  2  Atk.  524  ;   1   V.  &  J. 

DEMURRER  BOOK.  In  English  Practice. 
A  transcript  of  all  the  pleadings  that  have 
been  filed  or  delivered  between  the  parties 

made  upon  the  formation  of  an  issue  at  law. 
3  Steph.  Com.  511;  Lush,  Pr.   TsT. 

DEMURRER   UPON   EVIDENCE.     See  De- 

MtTRREB. 

DEMY  SANKE,  DEMY  SANGUE.  Half- 
blood.    A  corruption  of  demi-sang. 

DEN  AND  STROND.  Liberty  for  ships 
and  vessels  to  run  aground  or  come  ashore 
(strand  themselves).     CowelL 

DENARII.  An  ancient  general  term  for 
any  sort  of  pecunia  numerate,  or  ready  mon- 
ey. The  French  use  the  word  denier  in  the 
same  sense;  payer  do  scs  proprea  deniers. 

DENARIUS  DEI.  God's  penny;  earnest 
money.  A  certain  sum  of  money  which  is 
given  by  one  of  the  contracting  parties  to 

the  other  as  a  sign  of  the  completion  of  the 
contract.     See  Earnest;  God's  Penny. 

It  differs  from  arrhce  in  this,  that  the  latter  Is  a 
part  of  the  consideration,  while  the  denarius  Dei  is 
no  part  of  it.  1  Duvergnoy,  n.  132;  3  id.  n.  49; 
Re'pert.  dr  Jur.,  Deni<  r  d  Dieu. 

DENATIONALIZATION.  See  EXPATRIA- 
TION. 

DENIAL.     In   Pleading.     A  traverse  of  the 

statement  of  the   opposite  party;   a  defence. 

DENIER  A  DIEU.  In  French  Law.  A 
sum  of  money  which  the  hirer  of  a  thing 
gives  to  the  ether  party  as  evidence,  or  for 
the  consideration  of  uie  contract,  which 
either  party  may  annul  within  twenty  four 
hours,  the  one  who  gave  the  denier  <)  l>i<  u 
by  demanding,  and  the  other  by  returning 
it.     See  Denarius  Dei. 

Earnest  Money.     Bellow's  Diet 

DENIZATION.  The  act  by  which  a  for- 
eigner becomes  a  subject  of  a  country,   but 


without  the  .ither  of  a  natural 

t  or  of  one  Wl; 
it  has  existed  from  an  i  :nd  is 

d  only  by  letl 
i.      Denization     hi 
tion  ;   a   d  In  an  h 

position  between  an  alien  a  •  6  .■•  •    I 
subject,  and  pari 
ters.     lie  may  ordinarils 
but  nol  by  Inherit 
born  before  denizat 
him,  but  his  Issue  born  after  It  i 
burn,  Nationality  27;  M 

Tiest  v.  Cummings,  20  Wend   (N.  Y.i 
• 

The  difference  betv  n  and  nat- 

uralization   is    that   the 
British  subject  from  the  date  of  I 
while  a  naturalized  person  is 

equivalent   to  that  of  a   natural-born 
subject :  Dicey,  Confl.  Laws  164. 

DENIZEN.    An   alien    born    who    ha 
|  tained,   ex  donation*    legit,  Letters  patent  to 
make  him  an  English  subject 

lie  Is  Intermediate  a  natural-born 

i  and  an  alien.     He  may  take  lands  by 

purchase  or  devise,— which  an  alien  cannot; 

but  lie  is  Incapable  Of  taking  by  inheritance. 

i   Bla.  Com.  374. 

In  Smith  Carolina,  and  perhaps  in  other 
stales,  this  civil  condition  is  well  known  tn 
the  law,  having  been  created  by  statute. 

The  right  of  making  denizens  is  i. 
elusive!.-.-  vested  in  the  king,  for  it  is  pos- 
sessed by  parliament,  hut  is  scarcely  ever 
ed  hut  by  royal  power.  It  may  )"■ 
effected  by  conquestj  7  Co.  »",  a  ;  2  Yentr.  6; 
Com  Dig.  Alien  (T)'  1)  ;  Chitty,  Com.  Law 
120.    See  Denization. 

In   the  common    law.   the   word   denizen   is 
applied    to   a    natural-born    suh- 
ject     Co.  Litt.    l29o;   Levy  v.   McCartee,  G 
Pet.  (U.  S.)   102,  116,  s  L.  Ed.  334. 

DENOUNCE.  A  term  frequently  used  in 
regard  to  treaties,  indicating  the  act  of  one 
nation  In  giving  notice  to  another  n:it" 
its  intention  to  terminate  an  existing  treaty 
between  tii,.  two  nations.  The  French  </<■- 
noncer  means  to  declare,  to  lodge  an  infor- 
mation against.     BellOWS,  Fr.   Diet 

DENOUNCEMENT.  In  Mexican  Law.  A 
judicial  proceeding  for  the  forfeiture  of  land 
held  by  an  alien.  See  1'"  Merle  v.  Mathews. 
26  CaL  ITT:  Von  Schmidt  v.  Huntington,  l 
Cal.  <•>■".:  Craig  v.  Leslie,  3  Wheat  (1 
563,  4  L.  Ed.   i '•><>. 

DENUNCIATION.     In  Civil   Law.     The  act 
by  which  an  Individual  Informs  a  publl 
cer,  whose  duly  it  is  to  prosecute  offenders, 

that  a  crime  has  been  committed.  See  1  Bro. 
civ.  Law  tlT;  Ayllffe,  Parerg.  210;  Pothier, 
Proc.  Vi:  sect  2,  §  2. 

The  giving  of  an  informal  ion  in  the  ec- 
clesiastical courts  by  one  who  was  not  the 
accuser. 


DENUNTIATIO 


844 


DEPARTMENT 


DENUNTIATIO.     In    Old    English    Law.     A 

public  notice  or  summons.     Bracton  202  o. 

DE0DANO.  Any  personal  chattel  what- 
ever, animate  or  inanimate,  which  is  the  im- 
mediate cause  of  the  death  of  a  human  crea- 
ture. It  was  forfeited  to  the  king  to  be  dis- 
tributed in  alms  by  his  high  almoner  "for 
the  appeasing,"  says  Coke,  "of  God's  wrath/' 
The  word  comes  from  Deo  dandum,  a  thing 
that  must  be  offered  to  God. 

A  Latin  phrase  which  is  attributed  to  Bracton  has, 
by  mistranslation,  given  rise  to  some  erroneous 
statements  in  some  of  the  authors  as  to  what  are 
deodands.  Omnia  quae  ad  mortem  movent,  although 
it  evidently  means  all  things  which  tend  to  produce 
death,  has  been  rendered  move  to  death, — thus  giv- 
ing rise  to  the  theory  that  things  in  motion  only  are 
to  be  forfeited.  A  difference,  however,  according  to 
Blackstone,  existed  as  to  how  much  was  to  be  sacri- 
ficed. Thus,  if  a  man  should  fall  from  a  cartwheel, 
the  cart  being  stationary,  and  be  killed,  the  wheel 
only  would  be  deodand:  while,  if  he  was  run  over 
by  the  same  wheel  in  motion,  not  only  the  wheel  but 
the  cart  and  the  load  became  deodand.  And  this, 
even  though  it  belonged  to  the  dead  man.  Horses, 
oxen,  carts,  boats,  mill-wheels,  and  cauldrons  were 
the  commonest  deodands.  The  common  name  for  it 
was  the  "bana,"  the  slayer.  In  the  thirteenth  cen- 
tury the  common  practice  was  that  the  thing  itself 
was  delivered  to  the  men  of  the  township  where  the 
death  occurred,  and  they  had  to  account  to  the 
king's  officers.  In  very  early  records  the  justices  in 
eyre  named  the  charitable  purpose,  to  which  the 
money  was  to  be  applied ;  2  Poll.  &  Maitl.  471.  In 
1840,  a  railway  company  in  England  was  amerced 
£2,000,  as  a  deodand.  r^eodands  were  not  abolished 
till  1S46.  See  1  Bla.  Com.  301;  2  Steph.  Com.  551; 
Holmes,  C.  L.  24. 

No  deodand  accrues  in  the  case  of  a  fel- 
onious killing;  1  Q.  B.  818;  1  G.  &  D.  211, 
481 ;  Dow.  1048.  Deodands,  as  droits  for- 
merly attaching  to  the  office  of  the  Lord 
High  Admiral,  are  defined  as  "things  instru- 
mental to  the  death  of  a  man  on  shipboard, 
or  goods  found  on  a  dead  body  cast  on 
shore."    See  2  Browne,  Civ.  L.  56.' 

DEPART.  To  divide  or  separate  actively. 
The  departers  of  gold  and  silver  were  no 
more  than  the  dividers  and  refiners  of  those 
metals.     CowelL 

DEPARTMENT.  A  portion  of  a  country. 
In  France,  the  country  is  divided  into  de- 
partments, which  are  somewhat  similar  to 
the  counties  in  this  country.  The  United 
States  have  been  divided  into  military  de- 
partments, including  certain  portions  of  the 
country.  Parker  v.  U.  S.,  1  Pet  (U.  S.) 
293,  7  L.  Ed.  150. 

A  portion  of  the  agents  employed  by  the 
executive  branch  of  the  United  States  gov- 
ernment, to  whom  a  specified  class  of  duties 
is  assigned.  They  are  appointed  by  the 
president,  by  and  with  the  advice  of  the 
senate. 

The  Department  of  State  is  intrusted  with 
such  matters  relating  to  correspondence, 
commissions,  and  instructions  to  or  with 
public  ministers  and  consuls  of  the  United 
States,  or  to  negotiations  with  public  minis- 
ters from  foreign  states  or  princes,  or  to 
memorials  or  other  applications  from  foreign 


public  ministers  or  other  foreigners,  or  to 
such  matters  respecting  foreign  affairs  as 
the  president  shall  assign  to  said  depart- 
ment U.  S.  R.  S.  §  202.  It  has  custody  and 
charge  of  the  seal  of  the  United  States,  and 
of  the  seal  of  the  department  of  state,  and 
of  all  of  the  books,  papers,  records,  etc.,  in 
and  appertaining  to  the  department,  or  any 
that  may  hereafter  be  acquired  by  it;  id.  § 
203. 

The  principal  officer  is  a  secretary ;  he 
shall  conduct  the  business  of  the  department 
in  such  manner  as  the  president  shall  direct. 
There  are  three  assistant  secretaries  of  state. 

The  Department  of  the  Treasury  has 
charge  of  the  services  relating  to  the  financ- 
es. It  is  the  duty  of  the  secretary  to  digest 
and  prepare  plans  for  the  improvement  and 
management  of  the  revenue,  and  for  the 
support  of  public  credit;  to  prepare  and  re- 
port estimates  of  the  public  revenue  and  the 
public  expenditures ;  to  superintend  the  col- 
lection of  the  revenue;  to  decide  on  the 
forms  of  keeping  and  stating  accounts  and 
making  returns,  and  to  grant  under  limita- 
tions established  by  law,  all  warrants  for 
moneys  to  be  issued  from  the  treasury  in 
pursuance  of  appropriations  by  law;  to  make 
report  and  give  information  to  either  branch 
of  the  legislature,  in  person  or  in  writing, 
respecting  all  matters  referred  to  by  the 
senate  or  house  of  representatives,  or  which 
shall  appertain  to  his  office;  and,  generally, 
to  perform  all  such  services  relative  to  the 
finances  as  he  shall  be  directed  to  perform. 
The  department  includes  internal  revenue ; 
the  mint;  life  saving  service;  engraving  and 
printing;  national  banking  system;  revenue 
marine ;  customs ;  supervising  architect. 
There  are  three  assistant  secretaries. 

The  Department  of  War  is  intrusted  with 
duties  relating  to  the  land  forces.  There  is 
an  assistant  secretary.  U.  S.  R.  S.  §  214. 
It    has    charge    of    the    Military    Academy. 

The  Department  of  Justice  is  presided 
over  by  the  attorney-general,  who  is  assisted 
by  the  solicitoi'-general  and  four  assistant 
attorneys-general,  and  by  solicitors  for  cer- 
tain departments.  There  is  provision  for 
the  employment  of  special  counsel  in  certain 
cases. 

The  attorney-general  is  required  to  give 
his  advice  and  opinion  upon  questions  of 
law  whenever  required  by  the  president  or 
the  head  of  any  executive  department,  and 
on  behalf  of  the  United  States  to  procure 
proper  evidence  for,  and  conduct,  prosecute 
or  defend  all  suits  in  the  supreme  court  or 
in  the  court  of  claims,  in  which  the  United 
States  or  any  officer  thereof,  as  such  officer, 
is  a  party  or  may  be  interested.  He  exer- 
cises general  superintendence  and  direction 
over  the  attorneys  and  marshals  of  all  the 
districts  in  the  United  States  and  territories, 
and  has  power  to  employ  and  retain  such  at- 
torneys  and   counsellors-at-law   as   he    may 


DEPARTMENT 


845 


DEPARTURE 


think  necessary  to  assist  the  district  attor- 
neys in  the  discharge  of  their  duties.  U.  S. 
R.  S.  §  346. 

The  Post  Office  Department  has  the  gener- 
al charge  of  matters  relating  to  the  postal 
service,  the  establishment  of  post-offic< 
pointmenl  of  postmasters,  and  the  like.  The 
head  of  the  department  is  the  p 
general  and  there  are  four  assistanl  post- 
icral.  U.  S.  K.  8.  £§  394  896;  1 
Bupp.  927. 

The  Deportment  of  the  Navy  is  intrusted 
with  the  charge  of  the  navy.  There  is  an 
assistant  secretary  and  a  jndge  adv< 
general.  There  are  in  the  navy  department 
certain  bureaus:  Yards  and  docks;  equip- 
ment and  recruiting;  navigation;  ordnance; 
construction  and  repair;  steam  engineering; 
provisions  and  clothing;  medicine  and  sur- 
gery. It  includes  the  Marine  Corps  and  the 
Naval    Academy. 

The  Department  of  the  Interior  has  gener- 
al supervisory  and  appellate  powers  over  the 
office  of  the  commissioner  of  patents,  and 
charge  of  the  land  office,  Indian  affairs,  pen- 
sions, education,  mines,  geological  survey, 
government  hospitals  and  asylums  and  capi- 
tal buildings.  There  is  an  assistant  secre- 
tary. 

The  Department  of  Agriculture  is  presided 
over  by  a  secretary  of  agriculture.  The  de- 
sign and  duties  of  this  department  are  to 
acquire  and  diffuse  useful  information  on 
subjects  connected  with  agriculture,  aud  to 
procure,  propagate,  and  distribute  among  the 
people  new  and  valuable  seeds  and  plants; 
Act  Feb.  9,  18S9 ;  by  act  of  1890  the  Weather 
Bureau  was  added.  There  is  an  assistant 
secretary. 

The  Department  of  Commerce  was  pro- 
vided by  Act  of  Feb.  14,  1903,  as  the  Depart- 
ment of  Commerce  and  Labor;  upon  the  cre- 
ation (infra)  of  the  Department  of  Labor,  it 
became  the  Department  of  Commerce.  The 
department  includes  supervision  of  corpora- 
tions, lighthouses,  the  census,  steamship  in- 
spection, standards,  navigation  and  foreign 
and  domestic  commerce. 

The  Department  of  Laoor  was  created  by 
Act  of  March  4,  1013,  to  promote  the  welfare 
of  the  wage  earners  of  the  United  States,  to 
Improve  their  working  conditions,  etc.  it  in- 
cludes Immigration,  naturalization,  labor 
Statistics  and   children's   bureau. 

As  to  the  succession  to  the  presidency,  Bee 
Cabinet. 

DEPARTURE.  In  Maritime  Law.  A  devi- 
ation from  the  course  prescribed  In  the  policy 
of  insurance.     See  Deviation-. 

In  Pleading.  The  statement  of  matter  in  a 
replication,  rejoinder,  or  subsequent  plead- 
ing, as  a  cause  of  action  or  defence,  which  is 
not  pursuant  to  the  previous  plea  din,'  of 
the  same  party,  and  which  does  not  support 
and  fortify  it.  2  Wms.  Saund.  84  a,  □.  i  ;  Co. 
Litt.  304  o.     It  is  not  allowable,  as  it  pre- 


vents reaching  an  is>ue;  Kimberlin  v.  Car- 
ter, 49  Ind.  Ill;  White  v.  Joy,  L3  N.  T.  83, 
89;    2  Wins.  Saund.  a,  n.  1  ;    Steph.  PL  410. 

A   replication  in  tort  following  a  declara- 
tion  in  contract   is  ■■ 
B36 :     and    so    it 

tireiy  different  chart 

port    the  declaration  and  the  John- 

son v.  Bank,  59  Kan.  250,  52 
change  of  an  immaterial  point  Ifi  no  depart 
lire;    1   Btra.  -1  ;    nor  is  it  if  one  < 
pleadings  merely  fortifies  the  former;    1  Lev. 
81;    nor   where  the  replication    i 

a  prima  facie  defence  Bel  up  by  the 
plea,  as  a  statute  against  a  claim  of  CO! 
law  right;  2  B.  ft  s.  402;  nor  the  allegation 
in  reply  of  new  matter  necessary  to  meet  the 
allegations  of  the  answer,  if  not  contradlcto- 
atated  In  the  original  plead- 

I.    v.    Allen,    74    Kan. 

-  Pac.  252,  8  L.  EL  A.  (N.  s.i  291  ;    Mc 
Lachlin  v.  Barker,  84  Mo.  App.  511;    ' 

■  hens  38  or.  r.ii'.  63  Pac.  7'  0,  64  Pac 
319;    McFadden   v.    Schroeder,  4   Ind.   App. 

_  I  N.  B.  491,  30  N.  E.  711:   nor  t: 
ting   out   of    previous    averments    in    gi 
detail;    Zorn  v.  Livesley,  44  Or.  501,  7.".  Pac 
1037. 

It  is  to  be  taken  advantage  of  by  demurrer, 
general;   5  D.  ft  II.  295;    Sterns  v.  Patterson, 

it  Johns.  (N.  Y.i  L32;    Keay  v.  G Iwin,  16 

Mass.  1;  or  special;  -  Saund.  84;    i 
Pleader  (F  10);    Hanover   Fire   Ens.  <'o.  of 
City  of  New    York   v.   Brown,  77  Md. 
Atl.  989,  27  Atl.  31  1.  30  Am.  St.  Rep.  386. 
.A  departure  is  cured  by  a  verdict  in  favor 
of  him  who  makes   it,  if  the  matter  p] 
by  way  of  departure  is  a  sufficient  answer  in 
substance  to   what  has  been  before  pl< 
by   the  opposite   party;     that    is.    if  it   would 
have   been    sufficient   if   pleaded    in    the    first 
instance;    2  Saund.  84;    l  Lilly,  Abr.  444. 

DEPARTURE    IN    DESPITE    OF    COURT. 

This  took  place  where  the  tenant,  bavin-' 
once  made  his  appearance  in  court  upon  de- 
mand, failed  to  reappear  when  demanded; 
Co.  Litt  L39tt.  As  the  whole  term  is,  in 
contemplation  of  Law,  but  a  sing 
appearance  on  any  day.  and  a   subsequent 

failure    to    reappear    at  any   subsequent    part 

of  the  term,  is  such  a  departure;  s  Co. 
1  Rolle.  Air.  583;    Met.  .  Yelv.  211. 

DEPENDENCY.     A  territory  dlstlncl 
ontry   in  which  the  supreme  so\. 
power  resides,  but  belonging  rightfully  to  it, 
and    subject     to    the     laws    and     regulations 
which  the  e  may  think  proper  to  pre- 

scribe.   ' 

It  differs  from  a  colony,  because  it  is  not  settled 
by  tin'  citizens  of  t lie  sovereign  or  mother  state; 
ami  from  possession,  because  it  is  held  by  other  title 
than  that  of  mere  conquest  For  example,  Malta 
was  considered  a  dependency  of  Great  Britain  In  the 
year  m 3.  I".  S.  v.  The  Nancy,  3  Wash.  C.  C.  286, 
Fed.  Cas.  No  15,854.  See  Act  of  Cong.  Men.  1,  1809. 
commonly  called  the  non-importation  law;  Terri- 
tory ;    Indians. 


DEPENDENT 


846 


DEPORTATION 


DEPENDENT.  One  who  derives  support 
from  another.  Ballou  v.  Gile,  50  Wis.  618, 
7  N.  W.  561;  Supreme  Council  American 
Legion  of  Honor  v.  Perry,  140  Mass.  590,  5 
X.  E.  634 ;  not  merely  persons  who  derive  a 
benefit  from  the  earnings  of  the  deceased; 
[1S99]  1  Q.  B.  1005.  A  father  is  in  part  de- 
pendent on  his  child,  however  young,  if  the 
wages  of  the  child  form  part  of  the  common 
fund  to  maintain  the  home;  1 11)00]  A.  C.  35S; 
Alexander  v.  Parker,  144  111.  355,  33  N.  E. 
183,  19  L.  R.  A.  1S7  (where  the  term  is  used 
with  reference  to  benevolent  associations). 
See  Death. 

DEPENDENT  PROMISE.  One  which  it  is 
not  the  duty  of  the  promisor  to  perform  un- 
til some  obligation  contained  in  the  same 
agreement  has  been  performed  by  the  other 
party.  Hamm.  Partn.  17,  29,  30,  109 ;  Harr. 
Cont.  152.  See  Contract;  Covenant;  Inde- 
pendent Promise. 

DEPONENT.  One  who  gives  information, 
on  oath  or  affirmation,  respecting  some  facts 
known  to  him,  before  a  magistrate  or  other 
person  entitled  to  administer  an  oath ;  he 
who  makes  a  deposition.  Bliss  v.  Shuman,  47 
Me.  248.     See  Affiant. 

DEPORTATION.  In  Roman  Law.  A  per- 
petual banishment,  depriving  the  banished  of 
his  rights  as  a  citizen:  it  differed  from  rele- 
gation (q.  v.)  and  exile  (q.  v.).  1  Bro.  Civ. 
Law,  125,  n.;   Inst.  1.  12.  1;   Dig.  48.  22.  14.  1. 

In  Modern  Law.  "The  removal  of  an  alien 
out  of  the  country,  simply  because  his  pres- 
ence is  deemed  inconsistent  with  the  public 
welfare,  and  without  any  punishment  being 
imposed  or  contemplated,  either  under  the 
laws  of  the  country  out  of  which  he  is  sent, 
or  under  those  of  the  country  to  which  he  is 
taken."  Fong  Yue  Ting  v.  U.  S.,  149  U.  S. 
709,  13  Sup.  Ct.  1016,  37  L.  Ed.  905.  It  differs 
from  transportation  (q.  v.),  which  is  by  way 
of  punishment  of  one  convicted  of  an  offence 
against  the  laws  of  the  country ;  and  from 
extradition  (q.  v.),  which  is  the  surrender  to 
another  country  of  one  accused  of  an  offence 
against  its  laws,  there  to  be  tried,  and,  if 
found  guilty,  punished ;  id.  It  is  not  a  crim- 
inal proceeding;  U.  S.  v.  Hing  Quong  Chow, 
53  Fed.  233. 

The  right  of  a  nation  to  expel  or  deport 
foreigners  who  have  not  been  naturalized  or 
taken  any  steps  towards  becoming  citizens  of 
the  country,  rests  upon  the  same  grounds, 
and  is  as  absolute  and  unqualified  as  the 
right  to  prohibit  and  prevent  their  entrance 
into  the  country ;  Fong  Yue  Ting  v.  U.  S., 
149  U.  S.  69S,  13  Sup.  Ct.  1016,  37  L.  Ed.  905, 
which  holds,  by  a  divided  court,  that  this 
right  exists  even  though  such  persons  be 
subjects  of  a  friendly  power  and  have  ac- 
quired a  domicile  in  this  country.  This  case 
follows  Vattel,  Law  of  Nations  §  230;  Or- 
tolan, Dipt,  de  la  Mer  297;  1  Phill.  Int.  L. 
§  220;    Bar,  Int.  Law  (Gillespie's  ed.)   70S. 


None  of  the  guaranties  of  the  United  States 
constitution,  first  amendment,  respecting 
freedom  to  worship,  speak,  publish  or  peti- 
tion, are  infringed  by  the  immigration  act  of 
March  3,  1903,  for  the  exclusion  and  deporta- 
tion of  alien  anarchists;  U.  S.  v.  Williams, 
194  U.  S.  279,  24  Sup.  Ct.  719,  48  L.  Ed.  979. 

So  the  child  of  an  alien,  bora  abroad, 
whose  father  afterwards  comes  here  and  is 
naturalized,  can  be  excluded  and  deported  if 
found  to  be  suffering  from  a  contagious  dis- 
ease; Zartariau  v.  Billings,  204  U.  S.  170, 
27  Sup.  Ct.  182,  51  L.  Ed.  428. 

Deportation  is  an  inherent  sovereign  pow- 
er;  Tiaco  v.  Forbes,  228  U.  S.  540,  33  Sup. 

Ct.   585,  57  L.   Ed.   .     Congress  has  the 

power  to  deport  aliens  whose  presence  is 
deemed  hurtful,  and  this  applies  to  prosti- 
tutes, regardless  of  how  long  they  have  been 
here;  Bugajewitz  v.  Adams,  228  U.  S.  585, 
33  Sup.  Ct.  607,  57  L.  Ed. . 

In  England,  the  only  question  has  been 
whether  deportation  could  be  exercised  by 
the  king  without  the  consent  of  parliament. 
It  was  formerly  exercised  by  the  king,  but 
in  later  times  by  parliament.  See  2  Inst. 
57;  1  Bla.  Com.  260;  6  Law  Quart.  Rev.  27. 
A  British  colonial  governor  has  exercised  it; 
1  Moore,  P.  C.  460.    See  App.  Cas.  (1891)  272. 

Congress  may  exercise  the  power  through 
the  executive,  or  may  call  in  the  judiciary 
to  ascertain  contested  facts ;  Fong  You  Ting 
v.  U.  S.,  149  U.  S.  69S,  13  Sup.  Ct.  1016,  37 
L.  Ed.  905. 

See  Alien-Labor;  Anarchist;  Chinese; 
Citizen  ;  Naturalization  ;   Renvoi. 

Under  the  act  of  August  18,  1894,  the  deci- 
sion of  the  secretary  of  commerce  of  the 
right  of  a  person  of  Chinese  descent  to  enter 
the  United .  States  is  conclusive  on  the  fed- 
eral courts,  though  citizenship,  and  not  dom- 
icil,  is  the  ground  on  which  the  right  of  en- 
try is  claimed;  U.  S.  v.  Ju  Toy,  198  U.  S. 
253,  25  Sup.  Ct.  644,  49  L.  Ed.  1040.  If  he 
enters  unlawfully,  he  may  be  deported  by 
the  secretary  of  commerce ;  Prentis  v.  Seu 
Leung,  203  Fed.  25,  121  C.  C.  A.  389. 

"Moral  turpitude,"  as  ground  of  exclusion 
of  an  alien,  means  an  act  of  baseness,  vile- 
ness  or  depravity  in  the  private  and  social 
duties  which  one  owes  to  society,  and  as  ap- 
plied to  offences  includes  only  such  crimes  as 
manifest  personal  depravity  or  baseness ; 
U.  S.  v.  Uhl,  203  Fed.  152 ;  publishing  a  crim- 
inal libel  against  King  George  V,  of  which 
the  person  seeking  entrance  had  been  con- 
victed and  sentenced  to  one  year's  imprison- 
ment in  England  is  not  ground  of  exclusion ; 
id.,  affirmed,  U.  S.  v.  Uhl,  210  Fed.  860. 

DEPOSE.  To  deprive  an  individual  of  a 
public  employment  or  office  against  his  will. 
Wolffius,  Inst.  §  1063.  The  term  is  usually 
applied  to  the  deprivation  of  all  authority  of 
a  sovereign. 

To  give  testimony  under  oath.  See  Depo- 
sition. 


DEPOSIT 


847 


DEPOSIT 


DEPOSIT.  A  naked  bailment  of  goods 
to  be  kept  for  the  depositor  without  reward, 
and  to  be  returned  when  he  shall  require  it. 
Jones,  Bailm.  36,  117;  Bellows  Falls  Bank 
v.   Bank,  40  Vt.  380. 

A  bailment  of  goods  to  be  kept  by  the 
bailee  without  reward,  and  delivered  accord- 
ing to  the  object  or  purpose  of  the  original 
trust.  Story,  Bailm.  §  41 ;  Richardson  v.  Fu- 
trell,  42  Miss.  544 

A  contract  by  which  one  of  the  contract- 
in-  parties  gives  a  thing  to  another  to 
who  is  to  do  so  gratuitously  and  obliges  him- 
self to  return  it  when  lie  shall  be  requested. 
See  3  L.  R.  P.  C.  C.  101. 

An  irregular  deposit  arises  where  one  de- 
posits money  with  another  for  safekeeping, 
in  cases  where  the  latter  is  to  return,  nol  the 
specific  money  deposited,  but  an  equal  sum. 

A    (iitasi    deposit    arises    where   one    i 
lawfully  into  possession  of  the  goods  of  an- 
other by  finding. 

A  depositary  is  bound  to  take  only  ordi- 
nary care  of  the  deposit,  which  will  of  course 
vary  with  the  character  of  the  goods  to  be 
kept,  and  other  circumstances ;  Edw.  Bailm. 
43.  See  Vickroy  v.  Skelley,  14  S.  &  R.  (Pa.) 
:;-:, ;  Foster  v.  Bank,  17  Mass.  479,  9  Am. 
Dec.  168;  Tracy  v.  Wood,  3  Mas.  132,  led. 
Cas.  No.  14,130;  1  B.  &  Aid.  50.  While  gross 
negligence  on  the  part  of  a  gratuitous  bailee 
is  not  fraud,  it  is  in  effect  the  same  thing ; 
First  Nat.  Bank  v.  Graham,  100  L.  S.  699,  25 
L.  Ed.  750.  He  has,  in  general,  no  right  to 
use  the  thing  deposited;  Bac.  Abr.  Bailment, 
D ;  unless  in  cases  where  permission  has 
been  given  or  may  from  the  nature  of  the 
case  be  implied ;  Story,  Bailm.  §  90 ;  Jones, 
Bailm.  80,  81.  He  is  bound  to  return  the  de- 
posit in  individuo,  and  in  the  same  state  in 
which  he  received  it :  if  it  is  lost,  or  injured, 
or  spoiled,  by  his  fraud  or  gross  negligence, 
he  is  responsible  to  the  extent  of  the  loss  or 
injury;  Jones,  Bailm.  3G,  40,  120;  Foster  v. 
Bank,  17  Mass.  479,  9  Am.  Dec.  108;  Stanton 
v.  Bell,  9  N.  C.  145,  11  Am.  Dec.  711  ;  1  Dine, 
Abr.  c.  17,  arts.  1  and  2;  Hubbell  v.  Blandy, 
87  Mich.  209,  40  N.  W.  502,  24  Am.  St.  Rep. 
154.  He  is  also  bound  to  restore,  not  only 
the  thin-  deposited,  but  any  increase  or  prof- 
its which  may  have  accrued  from  it;  if  an 
animal  deposited  bear  young,  the  latter  are 
to  be  delivered  to  the  owner;  story,  Bailm. 
§  99. 

In  the  case  of  irregular  deposits,  as  those 
with  a  bank,  the  relation  of  the  bank  to  its 
customer  is  that  of  debtor  and  creditor,  and 
does  not  partake  at  all  of  a  fiduciary  char- 
acter. It  ceases  alto-ether  to  be  the  money 
of  the  depositor,  and  becomes  the  money  of 
the  bank.  It  is  his  to  do  what  he  pleases 
with  it,  and  there  is  no  trust  created;  Edw. 
Bailm.  41,  45;  Commercial  Bank  of  Albany 
v.  Hughes.  17  Wend.  (X.  Y.I  91;  1  Mer.  568; 
Bank  of  Marysville  v.  Brewing  Co.,  50  Ohio 
St.  151,  33  N.  E.  1054,  40  Am.  St  Rep.  660 ; 


American  Exchange  Nat.  Bank  v.  Gregg,  138 
ill.  596,  28  N.  1.  171  ; 

Collins  v.   State,  33   i  ith.  -'14  ; 

Central  Nat  Bank  v.  Ins.  (Jo.,  101  r.   E 
26  L.  Ed.  693.    See  J  -7  N. 

J.   Eq.  IS.     In  Law's   I  Mate,   114   I 
Atl.  831,  14  L,  R,   A.    i03,  it  was  held  to  be 
"a  temporary  disposition  of  money  for 
keeping,"  not  creating  the  relation  of  u 
and  creditor;    nor  is  it  a  loan;    id.;    Elliott 
v.  state  Bank,  128  la.  275  W.  777,  l 

1..  P.  A.  (N.  S.)  II-':".  Ill  Am.  St.  Rep.  1'.'-.     If 
the  jury  believe  from  the  evidence  that  the 
parties   intended   that  a  bank   should   Oi 
ceive  a  check  as  cash,  hut  only  as  nn  • 
for  collection,   then   title  to   the   check 
not   vest  in  the  bank  at   the  time  of  the  de- 
posit;   Fayette  Nat.    Bank   v.    Sun 
7a.  689,  54  S.  E.  862,  7  L.  R.  A.  (N.  S.)  694. 

Where  a  commission  merchant  deposits  his 
principal's  money  in  his  own  account  in  bank, 
it  cannot  be  applied  to  the  payment  of  the 
former's  debt  to  the  bank;  Boyle  v.  Bank,  125 
Wis.  498,  103  N.  W.  111':;.  104  N.  W.  917,  1  L. 
R.  A.  (N.  S.)  1110,  110  Am.  St  Pep.  844,  cit- 
ing Union  stock  Yards  Nat  Bank  v.  Gilles- 
pie, 137  U.  S.  411,  11  Sup.  Ct  US,  34  L.  Ed 
724. 

As  to  deposits  in  savings  banks,  etc.,  for 
another,  see  Donatio  Mortis  Cai 

See  Check;  Indorsement;  National 
Bank. 

The  legal  remedy  is  a  suit  at  law  for  debt: 
the  balance  cannot  be  reached  by  a  bill  in 
equity;  2  H.  L.  Cas.  39;  except  in  some 
cases  of  insolvency,  when  a  fund  can  be  fol- 
lowed :  Voight  v.  Lewis,  11  Phila.  (Pa.)  511. 
Fed.  Cas.  No.  16,989.  See  infra.  A  bank  is 
not  liable  for  interest  unless  expressly  con- 
tracted for;  and  the  deposil  is  subject  to 
the  statute  of  limitations;  2  II.  I. 
McLoghlin  v.  Bank.  139  N.  Y.  514,  34  N.  K. 
1095.  Otherwise,  in  the  case  of  a  certificate 
of  deposit  payable  on  demand;  Hartman's 
Appeal.  107  Pa.  333. 

The  general  rule  that  the  title  passes  upon 
the  deposit  does  not  apply  when  the  E 
of  the  deposit  is  a  sight  draft  and  the  bank 
at  the  time  of  the  acceptance  was  insolvent 
and  its  officers  knew  it  to  be  so;  St.  Louis  & 
S.  F.  R.  Co.  v.  Johnston.  133  D.  S.  566,  10 
Sup.  <'t.  .".oo.  33  E.  Ed.  683.  The  acceptance 
of  a  deposil  by  a  hank  Irretrievably  insolvent 
will  constitute  SUCh  fraud  as  will  entitle  the 
depositor  to  his  drafts  or  their  proceeds  :  id.  : 
Cragie  v.  Hadley,  99  x.  v.  L31,  l  N.  E.  537, 
52  Am.  Rep.  o:  Bruner  v.  Bank,  97  Tern 
37  S.  W.  286,  •".!  L.  K.  A.  532.  When  checks 
are  received  by  a  hank  hopelessly  Insolvent 
and  not  collected  until  after  it  doses  its 
doors,  the  owner  may  recover  the  checks  or 
their  proceeds;  City  of  SomervUle  v.  Beal, 
10  Fed.  790;  he  may  rescind  the  transfer  and 
stop  payment  of  the  check;  First  Nat.  Bank 
of  Meridian  v.  Strauss,  <'•'■  Miss.  179,  6  South. 
232,  11  Am.  St.  Pep.  579;    or  reclaim  it  from 


DEPOSIT 


848 


DEPOSITARY 


the  hands  of  the  assignee ;  Cragie  v.  Had- 
ley,  99  N.  Y.  131,  1  N.  E.  537,  52  Am.  Rep.  9 ; 
or  of  a  third  person  who  did  not  give  value 
for  it;  National  Citizens'  Bank  v.  Howard. 
3  How.  Pr.  N.  Y.  (N.  S.)  511 ;  but  not  if  the 
check  has  been  turned  over  to  a  bona  fide 
purchaser  for  value ;  Grant  v.  Walsh,  81 
Hun  449,  31  N.  Y.  Supp.  60.  If  the  subject 
of  the  deposit  is  money  and  is  in  a  separate 
package,  the  depositor  may  recover  it  from 
the  receiver;  In  re  Commercial  Bank,  1  Ohio 
N.  P.  35S ;  Chaffee  v.  Fort,  2  Lans.  (N.  Y.) 
81;  Furber  v.  Stephens,  35  Fed.  17;  but  if  it 
has  passed  into  the  hands  of  the  assignee 
and  been  mingled  with  the  other  funds  of 
the  bank,  and  cannot  be  traced,  the  depositor 
is  not  entitled  to  a  preference ;  Lotze  v.  Hoer- 
ner,  25  Ohio  L.  J.  31 ;  Wilson  v.  Coburn,  35 
Neb.  530,  53  N.  W.  466 ;  Blake  v.  Bank,  12 
Wash.  619,  41  Pac.  909;  In  re  North  River 
Bank,  60  Hun  91,  14  N.  Y.  Supp.  201.  It  has 
been  held  that  if  money  and  checks  are  de- 
posited a  few  minutes  before  the  doors  of 
the  bank  are  closed  and  the  checks  are  sub- 
sequently collected,  so  that  the  specific  mon- 
ey deposited  and  the  proceeds  of  the  checks 
come  to  the  hands  of  the  receiver,  the  own- 
er may  recover  them  from  him.  The  fact 
that  the  money  cannot  be  identified  will  not 
prevent  its  recovery  if  it  is  still  in  the  mass 
in  the  receiver's  hands ;  Wasson  v.  Hawkins, 
59  Fed.  237,  followed  in  Lake  Erie  &  W.  R. 
Co.  v.  Bank,  65  Fed.  690. 

Deposits  in  the  civil  law  are  divisible  into  two 
kinds— necessary  and  voluntary.  A  necessary  de- 
posit is  such  as  arises  from  pressing  necessity  ;  as, 
for  instance,  in  case  of  a  fire,  a  shipwreck,  or  other 
overwhelming  calamity ;  and  thence  it  is  called 
tniserabile  depositum.  La.  Civ.  Code  2935.  A  vol- 
untary deposit  is  such  as  arises  without  any  such 
calamity,  from  the  mere  consent  or  agreement  of 
the  parties.     Dig.   16.  3.  2. 

This  distinction  was  material  in  the  civil  law  in 
respect  to  the  remedy,  for  involuntary  deposits  the 
action  was  only  in  simplum,  in  the  other  in  duplum, 
or  twofold,  whenever  the  depositary  was  guilty  of 
any  default.  The  common  law  has  made  no  such 
distinction.     Jones,    Bailm.    48. 

Deposits  are  again  divided  by  the  civil  law  into 
simple  deposits  and  sequestrations:  the  former  is 
when  there  is  but  one  party  depositor  (of  whatever 
number  composed),  having  a  common  interest;  the 
latter  is  where  there  are  two  or  more  depositors, 
having  each  a  different  and  adverse  interest.  These 
distinctions  do  not  seem  to  have  become  incorpo- 
rated into  the  common  law.  See  Story,  Bailm.  §  41. 
See  Bailment. 

Deposit  is  sometimes  used  as  equivalent 
to  or  in  the  sense  of  earnest  (q.  v.),  when 
made  by  way  of  a  forfeiture  to  bind  a  bar- 
gain. In  such  case  it  is  forfeited  on  a  breach 
"even  if  as  a  deposit  and  in  part  payment 
of  the  purchase  money,"  and  it  cannot 
be  recovered  back  unless  circumstances 
make  it  unequitable  to  retain  it;  53  L.  J. 
Ch.  1001 ;  27  Ch.  D.  89. 

See  Gift  ;  Certificate  of  Deposit. 

DEPOSITARY.  A  person  entrusted  with 
anything  by  another  for  safekeeping;  a 
trustee;    fiduciary;    one  to  whom  goods  are 


bailed     to     be     held     without     recompense. 
Stand.  Diet. 

DEPOSITION.  The  testimony  of  a  wit- 
ness reduced  to  writing,  in  due  form  of  law, 
by  virtue  of  a  commission  or  other  author- 
ity of  a  competent  tribunal,  or  according  to 
the  provisions  of  some  statute  law,  to  be 
used  on  the  trial  of  some  question  of  fact 
in  a  court  of  justice.  Stimpson  v.  Brooks, 
3  Blatchf.  456,  Fed.  Cas.  No.  13,454;  State 
v.  Dayton,  23  N.  J.  L.  49,  53  Am.  Dec.  270. 

Depositions  were  not  formerly  admitted 
in  common-law  courts,  and  were  afterwards 
admitted  from  necessity,  where  the  oral 
teslimony  of  a  witness  could  not  be  obtain- 
ed. But  in  courts  of  chancery  this  was 
formerly  the  only  method  of  taking  testi- 
mony; Ad.  Eq.  363.  In  some  of  the  states, 
however,  both  oral  testimony  and  depositions 
are  used,  the  same  as  in  courts  of  common 
law. 

In  criminal  cases,  depositions  cannot  be 
used  without  the  consent  of  the  defendant; 
3  Greenl.  Ev.  §  11;  Dominges  v.  State,  7 
Smedes  &  M.  475,  45  Am.  Dec.  315 ;  McLane 
v.  State,  4  Ga.  335.  This  is  a  necessary 
consequence  of  the  provision  of  the  constitu- 
tion of  the  United  States  that  in  all  crim- 
inal prosecutions  "the  accused  shall  enjoy 
the  right  to  be  confronted  with  the  witness- 
es against  him."  Amend,  art.  6.  This  prin- 
ciple is  recognized  in  the  constitutions  or 
statutes  of  most  of  the  states  of  the  Union. 
3  Greenl.  Ev.  §  11 ;    Cooley,  Const.  Lim.  387. 

In  some  of  the  states,  provision  is  made 
for  the  taking  of  depositions  by  the  accused. 
Conn.  Comp.  Stat.  art.  6,  §  162;  3  Greenl. 
Ev.  §  11. 

Provision  has  been  made  for  taking  dep- 
ositions to  be  used  in  civil  cases,  by  an  act 
of  congress  and  by  statutes  in  most  of  the 
states. 

U.  S.  Rev.  Stat.  §§  863-S76,  direct  that  when,  in 
any  civil  cause  depending  in  any  district  in  any 
court  of  the  United  States,  the  testimony  of  any  per- 
son shall  be  necessary  who  shall  live  at  a  greater 
distance  from  the  place  of  trial  than  one  hundred 
miles,  or  is  bound  on  a  voyage  to  sea,  or  is  about  to 
go  out  of  the  United  States,  or  out  of  such  district, 
and  to  a  greater  distance  from  the  place  of  trial 
than  as  aforesaid,  before  the  time  of  trial,  or  is  an- 
cient, or  very  infirm,  the  deposition  of  such  person 
may  be  taken,  de  bene  esse,  before  any  justice  or 
judge  of  any  of  the  courts  of  the  United  States,  or 
any  commissioner  of  a  circuit  court,  or  any  clerk  of 
a  district  or  circuit  court,  or  before  any  chancellor, 
justice,  or  judge  of  a  supreme  or  superior  court, 
mayor  or  chief  magistrate  of  a  city,  or  judge  of  a 
county  court  or  court  of  common  pleas  of  any  of  the 
United  States,  or  any  notary  public,  not  being  of 
counsel  or  attorney  to  either  of  the  parties,  or  in- 
terested in  the  event  of  the  cause  ;  provided  that  a 
notification  in  writing  from  the  party  or  his  attor- 
ney, to  the  adverse  party,  to  be  present  at  the  tak- 
ing of  the  same,  and  to  put  interrogatories,  if  he 
think  fit,  be  first  made  out  and  served  on  the  adverse 
party,  or  his  attorney,  as  either  may  be  nearest. 
And  in  all  cases  in  rem,  the  person  having  the  agen- 
cy or  possession  of  the  property  at  the  time  of  the 
seizure  shall  be  deemed  the  adverse  party  until  a 
claim  shall  have  been  put  in;  and  whenever,  by  rea- 
son of  the  absence  from  the  district,  and  want  of  an 


DEPOSITION 


849 


DEPOSITION 


attorney  of  record,  or  other  reason,  the  giving  of  the 
notice  herein  required  shall  be  Impracticable,  it  shall 
be  lawful  to  take  such  depositions  as  there  shall  be 
urgent  necessity  for  taking,  upon  such  noti.  ■ 
any  judge  authorized  to  hold  courts  in  such  circuit 
or  district  shall  think  reasonable  and  direct.  Any 
person  may  be  compelled  to  appear  and  depose,  as 
provided  by  this  section,  in  the  same  manner  as 
witnesses  may  be  compelled  to  appear  and  testify 
In  court.  And  every  person  deposing  as  aforesaid 
shall  be  carefully  examined  and  cautioned,  and 
sworn  or  affirmed  to  testify  to  the  whole  truth,  and 
sball  subscribe  the  testimony  by  him  or  her  given, 
after  the  same  shall  be  reduced  to  writing,  which 
shall  be  done  only  by  the  magistrate  taking  the  dep- 
osition, or  by  the  deponent  in  his  presence.  And 
the  depositions  so  taken  shall  be  retained  by  such 
magistrate  until  he  deliver  the  same  with  his  own 
hand  into  the  court  for  which  they  are  taken,  or 
shall,  together  with  a  certificate  of  the  reasons  as 
aforesaid  of  their  being  taken,  and  of  the  notice,  if 
any  given,  to  the  adverse  party,  be  by  him  the  said 
magistrate  sealed  up  and  directed  to  such  court,  and 
remain  under  his  seal  until  opened  in  court.  But 
unless  it  appears  to  the  satisfaction  of  the  court 
that  the  witness  Is  then  dead  or  gone  out  of  the 
United  States,  or  to  a  greater  distance  than  one 
hundred  miles  from  the  place  where  the  court  is 
siting,  or  that,  by  reason  of  age,  sickness,  bodily  in- 
firmity, or  imprisonment,  he  is  unable  to  travel  and 
appear  at  court,  such  deposition  shall  not  be  used 
In  the  cause.  Provided  that  nothing  herein  shall  be 
construed  to  prevent  any  court  of  the  United  States 
from  granting  a  dedimus  potestatcm,  to  take  depo- 
sitions according  to  common  usage,  when  it  may  be 
necessary  to  prevent  a  failure  or  delay  of  justice, — 
which  power  they  shall  severally  possess ;  nor  to 
extend  to  depositions  taken  in  perpetuam  rex  memo- 
riam,  which,  if  they  relate  to  matters  that  may  be 
cognizable  in  any  court  of  the  United  States,  a  cir- 
cuit court,  on  application  thereto,  made  as  a  court 
of  equity,  may,  according  to  the  usages  in  chan- 
cery, direct  to  be  taken. 

In  any  cause  before  a  court  of  the  United  States, 
it  shall  be  lawful  for  such  court,  in  its  discretion  to 
admit  in  evidence  any  deposition  taken  in  perpetuam 
rex  memoriam,  which  would  be  so  admissible  in  a 
court  of  the  state  wherein  such  cause  is  pending, 
according  to  the  laws  thereof. 

The  act  of  January  24,  1827,  authorizes  the  clerk 
of  any  court  of  the  United  States  within  which  a 
witness  resides,  or  where  he  is  found,  to  issue  a 
subpoena  to  compel  the  attendance  of  such  witness ; 
and  a  neglect  of  the  witness  to  attend  may  be  pun- 
ished by  the  court  whose  clerk  has  issued  the  sub- 
poena, as  for  a  contempt.  And  when  papers  are 
wanted  by  the  parties  litigant,  the  judge  of  the 
court  within  which  they  are  may  issue  a  subpoena 
duces  tecum,  and  enforce  obedience  by  punishment 
as  for  a  contempt.  R.  S.  §§  SG3-S75  ;  see  Blease  v. 
Garlington,  92  U.  S.  1,  23  L.  Ed.  521  ;  Bates  Fed. 
Eq.    Proc. 

No  witness  shall  be  required,  under  the  provisions 
of  either  of  the  two  preceding  sections,  to  attend 
at  any  place  out  of  the  county  where  he  resides, 
nor  more  than  forty  miles  from  the  place  of  his  res- 
idence, to  give  his  deposition,  nor  6hall  any  witness 
be  deemed  guilty  of  contempt  for  disobeying  any 
subpoena  directed  to  him  by  virtue  of  either  of  the 
said  sections,  unless  his  fee  for  going  to,  returning 
from,  and  one  day's  attendance  at  the  place  of  ex- 
amination are  paid  or  tendered  to  him  at  the  time 
of  the  service  of  the  subpoena.  See  R.  S.  5  870,  etc. 
R.  S.  §  863,  above  quoted,  relating  to  depositions 
de  bene  esse,  applies  to  equity  as  well  as  to  com- 
mon-law causes;  Stegner  v.  Blake,  36  Fed.  183. 
When  a  party  is  represented  by  counsel  at  the  tak- 
ing of  a  deposition  and  takes  part  in  the  examina- 
tion, that  must  be  regarded  as  a  waiver  of  irregu- 
larities in  taking  it;  Northern  Pac.  R.  Co.  v  Urlin, 
158  U.  S.  271,  15  Sup.  Ct.  840,  39  L.  Ed.  977  ;  and  after 
having  been  read  in  evidence,  without  objection,  its 
regularity  cannot  afterwards  be  challenged  ;  Evans 
v.  Hettich,  7  Wheat.  (U.  S.)  453,  5  L.  Ed.  496;  Brown 
T.   Tarkington,   3   Wall.    (U.   S.)    377.   18  U    Ed.    255. 

Bouv.— 54 


Objections   must   be   taken,   and   noted   at  the  time, 
to  the  competency  of  a  Shutte  v.   Thomp- 

son, 16  Wall.  (U.  S.J  151,  2]   L.  Ed.  123;    or  to  irregu- 
larities or  defects  which  might  have  been  remedied 
by  retaking  the  deposition,  and  m 
tions  must  be  raised   v 

or    on    motion    to    suppress    and    not    at    the    trial  ; 
Doane  v.   Glenn,  21   Wall.   (U.  S.)  33,  22   L    I 
Bibb   v.   Allen,  149   U.    S.   481.   13  Sup     CI 
1M.   819;    York   Mfg.   Co.   v.  R.  Co 

107.  18  L.   Ed.   170  ;     unless  the  Urn.  return 

and   before  trial  is  too  brief;    id.;    otherwise  they 

ired;      Howard   v.    Mfg.   Co.,   139    I 
Sup.    Ct.    500,   35    L.    Ed.   147;     Clogg 
Md.    420,    43  Atl.   795;     American   Pub.    < 
Mayne    Co.,   9    Utah,   821,    84    i  r    Pine 

Lumber  Co.  v.  Garrett,  28  Or.  171,  42  Pa 

A  deposition  de  bene  esse  cannot  be  read,  if  i 
ed  to,  if  the  witness  is  present  in  court;     W. 
v.  Clark  County,  119  U. 
Ed.  500;   or  can  be  produced;    The  Samu 
(U.  S.)  9,  4  L.  Ed.  23;    or,  If  an  away-going  witness, 
a  subpoena  has  not  been  taken  out  and  eiiurt  made 
to  serve  it;    Mifflin  v.  Bingham,  1  Dall.  (U.  S. 
L.    Ed.    133;    and    it   must   be   shown   that   tl. 
ability    to    attend    continues ;     Patapsco    Ins.    Co.    v. 
Southgate,   5  Pet.    (U.   S.)  604,  8    L. 
examination    is   a   waiver   of  objection   to   th' 
larity  of  the  deposition;    Mechanics'  Bank  v. 
1   Pet.    (U.    S.)    299.  7   L.    Ed.   152;     Nortl 
R.  Co.  ▼.  Urlin,  158  U.  S.  274.  15  Sup.  Ct.   840,  39  L. 
Ed.  977  ;    but  not  to  the  i 
Mifflin  v.  Bingham,  1  Dall.  (U.  S.)  272.  1  L.  Ed.  133. 

A  clerical  mistake  in  making  out  a   com- 
mission,    which  in  no  way   misled  (he 
Bite  party  or  affected  his  rights,  is  no  valid 
ground   for   the   suppression   of  the  deposi 
tion;    Bibb  v.  Allen,  149   F.  S.  481,  13 
Ct.  950,  37  L.  Ed.  S19.     If  t)  nt  is 

not  satisfied   with  his   first   deposition,   it  Is 
his  right,    without   any   order  of   the   court, 
to  make  a  second  one:    Mash  v.  Williams,  20 
Wall.   (U.   S.i   226,  22   L.   Ed.  254.     The  sub- 
ject  was  fully  considered  by  Shipman,  C.  J.. 
in  White  v.  R.  Co.,  79  Fed.  133,  24  C.  I 
4(77.     The  judiciary  act  of  17S0  provided  for 
the  examination  of  witnesses  in  open  court 
in   equity  as  well  as  at   law.     The  act   of 
April  29,    1802,    provided    that  testimony    in 
equity    might    be    taken    by    depositions    in 
states   where   that    was    the    practice.      The 
act  of  August  23,  1842,  empowered  the  Su- 
preme Court  to  make  rules  tor  taking 
mony.      The    former    (">7th    Rule    in    Equity 
was  formulated  in  1861.    As  amended  LI 
larged   the   statutory   practice   and    provided 
for  taking  equity  evidence  orally  or  hj 
cial  examiners  and  for  securing  the  attend- 
ance of  witnesses,   which    may    be  coin: 
by  the  court  of  a   district  to  which  the  ex- 
aminer is  sent.     See.  also,   Stevens  v.   R.  Co.. 
104    Fed.    934.      The   judge   of  such    district 
may  pass  on  the  materiality  of  evidence  and 
compel  answers:   In  re  Allis    4  1    Fed.  2 

The  United  states  act  of  March  9.  1892, 
authorizing  depositions  to  be  taken  in  the 
mode  prescribed  by  the  state  laws,  merely 
provided  an  additional  method  and  did  not 
confer  any  additional-  rights  to  take  t<--t i 
mony;  National  Cash  Register  Co.  v.  Ice- 
land.  77   Fed.  242. 

Reasonable  notice  under  R.  S.  §$  863,  865, 

depends   upon  the  circumstances  of  the  par 


DEPOSITION 


850 


DEPOSITION 


ticular  case ;  distance,  number  of  witnesses, 
and  facility  of  communication  are  chiefly 
important;  American  Exch.  Nat.  Bank  v. 
Nat.  Bank,  82  Fed.  961,  27  C.  C.  A.  274. 
Notice  of  taking  proofs  in  three  different 
states  on  the  same  day  is  not  reasonable ; 
Eillert  v.  Craps,  44  Fed.  792. 

A  subpoena  duces  tecum  may  issue  to  a 
witness  whose  testimony  is  to  be  taken  un- 
der R.  S.  §  863;  Davis  v.  Davis,  90  Fed.  791. 

In  connection  with  question  of  adjourn- 
ment on  the  ground  that  counsel  cannot  at- 
tend, it  was  said  in  Uhle  v.  Buruham,  44 
Fed.  729,  that  the  law  does  not  contemplate 
that  a  litigant  shall  be  required  to  go  to  the 
expense  of  hiring  numerous  counsel  to  rep- 
resent him.  An  examiner  may  adjourn  a 
meeting  for  illness  and  absence;  Shapleigh 
v.  Light  &  Power  Co.,  47  Fed.  848. 

A  witness  may  test  the  validity  of  pro- 
ceedings by  refusing  to  be  sworn.  He  is 
then  in  contempt  and  his  rights  will  be  con- 
tested under  contempt  procedure;  In  re 
Spofford,  62  Fed.  443. 

In  taking  depositions  de  bene  esse  in  an- 
other district  under  R.  S.  §  863,  the  witness 
may  assert  his  privilege  of  refusing  to  tes- 
tify or  produce  documents,  and  in  such  a 
case  he  has  the  right  to  be  heard  before  the 
court  of  that  district.  Taking  depositions 
before  an  examiner  in  equity  is  not  a  ju- 
dicial trial ;  the  public  have  no  right  to  be 
present;  U.  S.  v.  Shoe  Machinery  Co.,  198 
Fed.  870. 

A  deposition  is  not  admissible  in  evidence 
if  the  witness  was  not  sworn  till  after  his 
testimony  was  reduced  to  writing;  Arm- 
strong v.  Burrows,  6  Watts  (Pa.)  266,  per 
Gibson,  C.  J. 

See  Street,  Fed.  Practice. 

The  new  Equity  Rules  of  the  Supreme 
Court  of  the  United  States  have  consider- 
ably changed  the  practice.  In  all  equity 
trials  the  testimony  is  to  be  taken  orally, 
in  open  court,  except  as  otherwise  provided 
by  statute  or  other  rules.  The  court  may 
permit  the  deposition  of  named  witnesses  to 
be  used  before  the  court  or  upon  a  refer- 
ence to  a  master  to  be  taken  before  an  ex- 
aminer, etc.  The  district  court  may  order 
that  the  testimony  in  chief  of  expert  wit- 
nesses may  be  set  forth  in  affidavits,  with 
the  right  of  cross-examination  and  re-exam- 
ination before  the  court  at  the  trial.  See 
Expert. 

Objections  to  the  evidence  before  an  ex- 
aminer, etc.,  must  be  in  short  form.  The 
testimony  of  each  witness,  after  being  re- 
duced to  writing,  must  be  read  over  to  or 
by  him  and  be  signed  by  him  in  the  presence 
of  the  officer.  If  the  witness  refuses  to 
sign,  the  officer  shall  sign'  the  deposition, 
stating  thereon  the  reason  for  refusal.  Ob- 
jections to  questions  must  be  noted  by  the 
officer,  but  he  is  without  power  to  pass  on 
competency,  etc. 


Where  witnesses  live  within  the  district, 
whose  testimony  may  be  taken  out  of  court 
by  the  rules,  they  may  be  summoned  before 
a  commissioner  or  master  or  examiner. 
Their  refusal  to  appear  is  contempt  of  court 
and  an  attachment  may  thereupon  issue  as 
in  the  case  of  contempt  for  not  attending 
or  for  refusing  to  give  testimony  in  court. 

In  a  state  criminal  trial  in  Louisiana, 
reading  a  deposition  taken  before  a  com- 
mitting magistrate  in  the  presence  of  the 
accused,  and  subject  to  his  counsel's  cross- 
examination,  the  witness  being  permanently 
absent  from  the  state,  does  not  deprive  the 
accused  of  his  liberty  without  due  process ; 
West  v.  Louisiana,  194  U.  S.  258,  24  Sup.  Ct. 
650,  48  L.  Ed.  965. 

In  Ecclesiastical  Law.  The  act  of  depriving 
a  clergyman,  by  a  competent  tribunal,  of  his 
clerical  orders,  to  punish  him  for  some  of- 
fence and  to  prevent  his  acting  in  future  in 
his  clerical  character.     Ayliffe,  Parerg.  206. 

DEP0SIT0.  In  Spanish  Law.  A  real  con- 
tract by  which  one  person  confides  to  the 
custody  of  another  an  object  on  the  condi- 
tion that  it  shall  be  returned  to  him  when- 
ever he  shall  require  it. 

DEPOSITOR.     He   who   makes  a   deposit. 

DEP0SITUM.  A  species  of  bailment.  See 
Deposit. 

DEPOT.  Within  the  meaning  of  statutes 
obliging  railroad  companies  to  fence  their 
tracks  excepting  depot  grounds,  mgre  dis- 
tance from  depots  has  been  held  not  to  be 
the  controlling  consideration  in  determin- 
ing how  far  they  extend ;  Rabidon  v.  R.  Co., 
115  Mich.  390,  73  N.  W.  3S6,  39  L.  R.  A. 
405.  Public  convenience  is  held  to  be  the 
limit  of  such  an  exception;  Greeley  v.  Ry. 
Co.,  33  Minn.  136,  22  N.  W.  179,  53  Am.  Rep. 
16.  They  may  include  the  terminals  and 
switch  stands  of  all  switches  or  side  tracks 
at  all  stations;  Gulf,  C.  &  S.  F.  Ry.  Co.  v. 
Blankenbeckler,  13  Tex.  Civ.  App.  249,  35 
S.  W.  331 ;  ground  necessary  to  take  in  wood 
and  water ;  Fowler  v.  Loan  Co.,  21  Wis.  77 ; 
Jeffersonville,  M.  &  I.  R.  Co.  v.  Beatty,  36 
Ind.  19 ;  Harvey  v.  Southern  Pac.  Co.,  46  Or. 
505,  80  Pac.  1061;  or  for  switches;  Illinois 
Cent.  R.  Co.  v.  Finney,  42  111.  App.  390;  a 
tract  of  five  or  six  acres  has  been  held  to  be 
included  in  depot  grounds;  Davis  v.  R.  Co., 
26  la.  549. 

A  place  where  military  supplies  and  stores 
are  kept.  Caldwell's  Case,  19  Wall.  (U.  S.) 
264,  22  L.  Ed.   114. 

DEPRIVATION.  A  censure  by  which  a 
clergyman  is  deprived  of  his  parsonage,  vi- 
carage, or  other  ecclesiastical  promotion  or 
dignity.  See  Ayliffe,  Parerg.  206;  1  Bla. 
Com.  393.     See  Degradation. 

DEPRIVE.  Referring  to  property  taken 
under  the  power  of  eminent  domain,  it 
means    the   same   as    "take."      Sharpless   v. 


DEPRIVE 


851 


DLLLLICT 


Mayor  of  Philadelphia,  21  Pa.  167,   59  Am. 
Dec.  759. 

The  constitution  contains  no  definition  of 
this  word  "deprive"  as  used  in  the  Four- 
teenth Amendment.  To  determine  its  sig- 
nification, therefore,  it  is  necessary  i"  as- 
certain the  effect  which  usage  has  given  it, 
when  employed  In  the  same  or  a  like  con- 
nection; Munn  v.  Illinois,  94  U.  S.  12::,  2-1  L. 
Ed.  77.    See  Di  Law;   i: u 

I  »om  \i.\  ;  Petto  egi  s  and  Immunities  ;  Four- 
teenth  A  M  EH  DM  ENT. 

DEPUTY.  One  authorized  by  an  officer 
to  exercise  the  office  or  right  which  the  offi- 
cer possesses,  for  and  in  place  of  the  latter. 

In  general,  ministerial  officers  can  appoint 
deputies,  Comyns,  Dig.  Officer  (D  1),  unless 
the  office  is  to  be  exercised  by  the  ministe- 
rial officer  in  person;  and  when  the  office 
partakes  of  a  judicial  and  ministerial  char- 
acter, although  a  deputy  may  be  made  for 
the  performance  of  ministerial  acts,  one  can- 
not be  made  for  the  performance  of  a  ju- 
dicial act;  a  sheriff  cannot,  therefore,  make 
a  deputy  to  hold  an  inquisition,  under  a  writ 
of  inquiry,  though  he  may  appoint  a  deputy 
to  serve  a  writ.  Sometimes,  however. 
eral  deputy  or  under-sheriff  is  appointed, 
who  possesses,  by  virtue  of  his  appointment. 
authority  to  execute  all  the  ordinary  duties 
of  sheriff,  and  may  even  appoint,  in  the 
name  of  the  sheriff,  a  special  deputy ;  Allen 
v.  Smith.  12  N.  J.  L.  109 ;  Tillotson  v.  Cheet- 
ham,  2  Johns.  (X.  Y.)  63. 

In  general,  a  deputy  has  power  to  do  every 
act  which  his  principal  might  do;  but  a 
deputy  cannot  appoint  a  deputy.  See 
Abrams  v.  Ervin,  9  la.  87;  Lewis  v.  Lewis, 
9  Mo.  183,  43  Am.  Dec.  540;  Confis 
Cases,  20  Wall.  fU.  S.)  Ill,  22  L.  Ed.  :^<>. 

A  deputy  should  always  act  in  the  name 
of  his  principal.  The  principal  is  liable  for 
the  deputy's  acts  performed  by  him  as  such, 
and  for  the  neglect  of  the  deputy;  .'!  Dane, 
Abr.  c.  76,  a.  2;  and  the  deputy  is  liable 
himself  to  the  person  injured  tor  his  own 
tortious  acts;  Dane,  Abr.  Index;  Com.  Dig. 
Officer  (D),  Viscount  (B).  See  7  Yiner,  Abr. 
556;  L.  R.  3  Q.  B.  Div.  741;  Willis  v.  Melvin. 
53  N.  C.  62. 

DERAIGN.  The  literal  meaning  of  the 
word  seems  to  be,  to  disorder  or  displace, 
as  deraignment  out  of  religion;  stat  31, 
Hen.  VIII,  c.  6.  But  it  is  generally  used  in 
the  common  law  for  to  prove,  as,  to  deraign 
the  warranty;  Clanv.,  lit'.  2,  c  6.  See  Jacob 
L.  Diet,  where  the  word  is  discussed.  It  is 
used  as  referring  to  a  decree  "which  de- 
raigns  his  title  from  a  false  source."  Paxson 
v.  Brown,  61  Fed.  874,  884,  10  <".  0.  A.  135. 

DERELICT.  Abandoned;  deserted;  cast 
away. 

Land  left  uncovered  by  the  receding  of  wa- 
ter from  its  former  bed.  2  Rolle,  Abr.  170; 
2    Bla.   Com.    262;   1   Crabb,   R.   P.   109. 


Personal    property    abandoned    or    thrown 
away    by    the   owner    in    such    manner   a 
indicate  that  he  intends  •  irther 

claim   thereto.     2   Bi 

Broom,    Max.    2<J1  ;    I  v.   Tappau    1 

Ohio   SI  ;    Joint's    Adm'rs    v.    Nunn,    1_ 
47.;. 

I  (erelicl  ion    or    renunciath 
quires  both  the  intention 
ternai  action.     Thui 

of  articles   in  a   tempest   to   I,  ship 

is  not   dereliction,   as  there-    I 
of  abandoning  the   ; 

salvage.     Nor   does    the    men  on   of 

abandonment   constitute  dereli  I  li  o 
erty   withoui   a  throwing  away  or  ren 
or  son)  external   acts;   Livermore  v. 

White,  71  Me.  455,  43  Am.  1; 

It  applies  as  well  to  property  abandoned 
at  sea  as  on  land;  Rowe  v.  The  Brig,  1 
Mas.  .••,7::.  Led.  «'as.  No.  12,093;  dons, 

l  Sumn.  207,  l"  d  Cas.  No.   I  Bos 

ton,   l   Sumn.   336,    Fed.  673;   2 

Kent  357.    A  vessel  which  is  abandoned  and 
deserted   by  her  crew   without  any   purpose 
on  their  part  of  returning  to   the  snip,  or 
any  hope  of  savim:  or  recovering  it  by  their 
own  exertions,   is  derelict;  20  E.   L.  &   Eq. 
607;   Mason  v.  The  Blaireau,  2  Cra.  (TJ.  S.) 
240,  2  L.  Ed.  266;  The  John  Gilpin,  0 
Fed.  Cas.  No.  7,345;  Evans  v.  The  Charles,  l 
Newb.  329,  Fed.  Cas.  No.  4,556;  Montgomery 
v.  The  T.  l'.  Leathers.  1  Newb.  421, 
No.  9,736;  The  Attacapas,  3  War. 
fas.    No.    G:;7;    The    Laura,   14    Wall.    (1 
;::;t;.  20  L.  Ed.  S13. 

The  title  of  the  owner  to  property  lying 
at  the  bottom  of  the  sea  is  nut  div< 
however  km;:  it  may  remain  there;  Murphj 
v.  Dunham,  38  I'd.  503;  "because  as  goods 
lying  at  the  bottom,  they  always  await  their 
owner;"  id.;  after  another  has  taken  them, 
the  owner  must  follow  them  within  a 
and  a  day;  id.;  5  Co.  l(i."> ;  1  B.  &  Ad.  141. 
where  the  law  is  fully  discussed;  3  Black 
Book.  Adm.  439. 

A  vessel  at  least  six  miles  from  shore  sub- 
;  from  midship  to  bow.  her  running 
rigging  overboard  and  snarled  fast,  her  boat 
gone,  her  cabin,  etc..  full  of  water,  a  dii 
flag  set.  and  deserted  by  her  crew,  who  had 
left  no  sign  of  an  intention  to  return  and 
were  not  visible,  is  prima  facit  derelict. 
though  she  was  anchored  and  her  master 
was  Intending  to  return  to  save  her  and  had 
telegraphed  for  a  wrecking  vessel;  The  Ann 
L.  Lockwood,  ■■'  Led.  233. 

However  long  goods  thrown  overboard  may 
have  been  on  the  ocean,  they  do  net  become 
derelict  by  time,  but  will  be  restored  on  the 
payment  of  salvage,  unless  there  was  a  vol 
antary  intention  to  abandon  them;  Bee  B2. 
The  finder  can  only  hold  possession  to  enforce 
a  lien  for  salvage;  Whitwell  v.  Wells.  24 
Pick.  (Mass.)  30.  See  Salvage;  Abandon- 
ment. 


DERIVATIVE 


852         DESCENT  AND  DISTRIBUTION 


DERIVATIVE.  Coming  from  another; 
taken  from  something  preceding ;  secondary  ; 
as,  derivative  title,  which  is  that  acquired 
from  another  person. 

There  is  considerable  difference  between  an  orig- 
inal and  a  derivative  title.  When  the  acquisition  is 
original,  the  right  thus  acquired  to  the  thing  be- 
comes property,  which  must  be  unqualified  and  un- 
limited, and,  since  no  one  but  the  occupant  has  any 
right  to  the  thing,  he  must  have  the  whole  right  of 
disposing  of  it.  But  with  regard  to  derivative  ac- 
quisition it  may  be  otherwise  ;  for  the  person  from 
whom  the  thing  is  acquired  may  not  have  an  unlim- 
ited right  to  it,  or  he  may  convey  or  transfer  it 
with  certain  reservation  of  right  Derivative  title 
must  always  be  by  contract. 

Derivative  conveyances  are  those  which 
presuppose  some  precedent  conveyance,  and 
serve  only  to  enlarge,  confirm,  alter,  restrain, 
restore,  or  transfer  the  interest  granted  by 
such  original  conveyance.    3  Bla.  Com.  324. 

DEROGATION.  The  partial  abrogation  of 
a  law.  To  derogate  from  a  law  is  to  enact 
something  which  impairs  its  utility  and 
force ;  to  abrogate  a  law  is  to  abolish  it  en- 
tirely. 

DEROGATORY  CLAUSE.  A  sentence  or 
secret  character  inserted  in  a  will  by  the 
testator,  of  which  he  reserves  the  knowledge 
to  himself,  with  a  condition  that  no  will  he 
may  make  thereafter  shall  be  valid,  unless 
this  clause  be  inserted  word  for  word.  This 
is  done  as  a  precaution  against  later  wills 
being  extorted  by  violence  or  otherwise  im- 
properly obtained.     Whart. 

DESAFUERO.  In  Spanish  Law.  An  ir- 
regular action  committed  with  violence 
against  law,  custom,  or  reason. 

DESCEND.  To  pass  by  succession;  as 
when  the  estate  vests  by  operation  of  law 
in  the  heirs  immediately  upon  the  death  of 
the  ancestor.  Dove  v.  Torr,  128  Mass.  40. 
See  Descent  and  Distribution. 

DESCENDANTS.  Those  who  have  issued 
from  an  individual,  including  his  children, 
grandchildren,  and  their  children  to  the  re- 
motest degree.  Anibl.  327 ;  2  Bro.  C.  C.  30, 
230 ;   1  Roper,  Leg.  115. 

The  descendants  from  what  is  called  the 
direct  descending  line.  The  term  is  opposed 
to  that  of  ascendants. 

There  is  a  difference  between  the  number  of  as- 
cendants and  descendants  which  a  man  may  have ; 
every  one  has  the  same  order  of  ascendants,  though 
they  may  not  be  exactly  alike  as  to  numbers,  be- 
cause some  may  be  descended  from  a  common  an- 
cestor. In  the  line  of  descendants  they  fork  differ- 
ently according  to  the  number  of  children,  and  con- 
tinue longer  or  shorter  as  generations  continue  or 
cease  to  exist.  Many  families  become  extinct,  while 
others  continue:  the  line  of  descendants  is,  there- 
fore, diversified  in  each  family. 

DESCENT  AND  DISTRIBUTION.  The  di- 
vision among  those  legally  entitled  thereto 
of  the  real  and  personal  property  of  intes- 
tates, the  term  descent  being  applied  to  the 
former  and  distribution  to  the  latter.  De- 
scent is  the  devolution  of  real  property  to 
the  heir  or  heirs  of  one  who  dies  intestate; 


the   transmission    by    succession   or   inherit- 
ance. 

Title  by  descent  is  the  title  by  which  one 
person,  upon  the  death  of  another,  acquires 
the  real  estate  of  the  latter  as  his  heir  at 
law.    2  Bla.  Com.  201 ;    Com.  Dig.  Descent. 

It  was  one  of  the  principles  of  the  feudal 
system  that  on  the  death  of  the  tenant  in 
fee  the  land  should  descend,  and  not  ascend. 
Hence  the  title  by  inheritance  is  in  all  cases 
called  descent,  although  by  statute  law  the 
title  is  sometimes  made  to  ascend. 

The  English  doctrine  of  primogeniture,  by 
which  by  the  common  law  the  eldest  son 
takes  the  whole  real  estate,  has  been  uni- 
versally abolished  in  this  country-  So,  with 
few  exceptions,  has  been  the  distinction  be- 
tween male  and  female  heirs. 

The  rules  Of  descent  are  applicable  only  to 
real  estates  of  inheritance.  Estates  for  the 
life  of  the  deceased,  of  course,  terminate  on 
his  death;  estates  for  the  life  of  another  are 
governed  by  peculiar  rules. 

Distribution  is  the  division  by  order  of 
the  court  or  legal  representative  having  au- 
thority, among  those  entitled  thereto,  of  the 
residue  of  the  personal  estate  of  an  intes- 
tate, after  payment  of  the  debts  and  charges. 
The  term  is  sometimes  used  to  denote  the 
division  of  a  residue  of  both  real  and  per- 
sonal estate,  and  also  the  division  of  an  es- 
tate according  to  the  terms  of  a  will,  but  nei- 
ther use  is  accurate,  the  term  being  tech- 
nically applied  only  to  personal  estate. 

The  title  to  real  estate  vests  in  the  heirs 
by  the  death  of  the  owner ;  the  legal  title  to 
personal  estate,  by  such  death,  vests  in  the 
executor  or  administrator,  and  is  transfer- 
red to  the  persons  beneficially  interested,  by 
the  distribution;  Roorbach  v.  Lord,  4  Conn. 
347. 

Terms  of  years,  and  other  estates  less  than 
freehold,  are  regarded  as  personal  estate, 
and,  on  the  death  of  the  owner,  vest  in  his 
executor  or  administrator. 

The  rules  of  descent  and  distribution  are 
prescribed  by  the  statute  laws  of  the  several 
states;  and,  although  they  correspond  in 
some  respects,  it  is  doubtful  whether  in  any 
two  they  are  precisely  alike. 

As  to  the  right  of  a  murderer  to  take  by 
descent  from  his  victim,  see  Mukdee.  And 
see,  generally,  Next  of  Kin;  Kindked;  Heir; 
Executors  and  Administrators. 

DESCENT  CAST.  Another  name  for  what 
the  older  writers  called  a  "descent  which 
tolls  entry."  When  a  person  had  acquired 
land  by  disseisin,  abatement,  or  intrusion, 
and  died  seised  of  the  land,  the  descent  of 
it  to  his  heir  took  away  or  tolled  the  real 
owner's  right  of  entry,  so  that  he  could 
only  recover  the  land  by  an  action.  Co. 
Litt.  237  6;  Rap.  &  L.  Diet. 

DESCENT  OF  CROWN  LANDS.  All 
lands    whereof    the    king    is    seised    in    jure 


coronw  attend  upon  and  follow  the  crown ;  so 


DESCENT  OF  CROWN  LANDS 


853 


DESCRIPTION 


that  to  whomsoever  the  crown  descends 
those  lands  and  possessions  descend  also. 
And  if  the  heir  of  the  crown  be  attainted 
of  treason,  yet  shall  the  crown  descend  to 
him,  and  without  any  reversal  the  attainder 
is  avoided.     I'lowd.  247;   Co.   Litt.   16. 

DESCENT  OF  DIGNITIES.  A  dignity 
differs  from  common  inheritances,  and 
not  accord  ins  to  the  rules  of  the  common 
law,  for  it  descends  to  the  half-blood,  and 
there  is  no  co-partnership  in  it,  but  the 
eldest  takes  the  whole.     Co.  Litt  27. 

DESCRIPTIO  PERSON/E.  Description  of 
the  person.  In  wills,  it  frequently  happens 
that  the  word  heir  is  used  as  a 
personw:  it  is  then  a  sufficient  designation  of 
the  person.  In  criminal  cases,  a  mere  de- 
scriptio  personcs  or  addition,  if  false,  can  be 
taken  advantage  of  only  by  plea  in  abate- 
ment; Com.  v.  Lewis,  l  Mete.  (Mass.)  151. 
A  legacy  "to  the  eldest  son"  of  A  would  be 
a  designation  of  the  person.  See  1  Roper, 
Leg.   c.   2. 

The  description  contained  in  a  contract 
of  the  persons  who  are  parties  thereto. 

In  all  contracts  under  seal  there  must  be 
some  designatio  personw.  In  general,  the 
names  of  the  parties  appear  in  the  body  of 
the  deed,  "between  A  B,  of,  etc.,  of  the  one 
part,  and  CD,  of,  etc.,  of  the  other  part," 
being  the  common  formula.  But  there  is  a 
sufficient  designation  and  description  of  the 
party  to  be  charged  if  his  name  is  written 
at  the  foot  of  the  instrument;  1  Ld.  Itaym. 
2;  1  Salk.  214;  2  B.  &  P.  339. 

When  a  person  is  described  in  the  body  of 
the  instrument  by  the  name  of  James,  and 
he  signs  the  name  of  John,  on  being  sued 
by  the  latter  name  he  cannot  deny  it;  3 
Taunt.  505;  Cro.  Eliz.  S97,  n.  (a).  See  11  Ad. 
&  E.  594;  3  P.  &  D.  271. 

DESCRIPTION.  An  account  of  the  acci- 
dents and  qualities  of  a  thing.  Ayliffe,  Pand. 
60. 

A  written  account  of  the  state  and  condi- 
tion of  personal  property,  titles,  papers,  and 
the  like.  It  is  a  kind  of  inventory,  but  is 
more  particular  in  ascertaining  the  exact 
condition  of  the  property,  and  is  without  any 
appraisement  of  it. 

In  Pleading.  One  of  the  rules  which  regu- 
late the  law  of  variance  is  that  allegations 
of  matter  of  essential  description  should  be 
proved  as  laid.  It  is  impossible  to  explain 
with  precision  the  meaning  of  these  words  ; 
and  the  only  practical  mode  of  understand- 
ing the  extent  of  the  rule  is  to  examine  some 
of  the  leading  decisions  on  the  subject,  and 
then  to  apply  the  reasoning  or  ruling  contain- 
ed therein  to  other  analogous  cases.  With 
respect  to  criminal  law,  it  is  clearly  estab- 
lished that  the  name  or  nature  of  the  prop- 
erty stolen  or  damaged  is  matter  of  essen- 
tial description.  Thus,  for  example,  if  the 
charge  is  one  of  firing  a  stack  of  hay,  and 
it  turns  out  to  have  been  a  stack  of  wheat, 


or  if  a  man  is  accused  of  stealing  a  drake, 
and   it   is   proved    to    Lav.'    b.  en   a 
even  a  duck,  the  va:  fatal     1 

Ev.  §  233;  Steph.  Cr.  Proa  177. 

The  strict  rule  of  pleading  which  former- 
ly required  exact  accuracy  in  the  description 
of  premises  sought  to  be  recovered,  has 
relaxed,   and  a   genera]   description   b< 
be   good.      The   provisions    of    state   Btal 
as  to  the  description  of  the 
and  bounds  have  been  held  to  be  only 
tory,  and  a  description  by  name  i 
property   is   well   known   is   often 
Glacier   Mountain    Silver   Min.   Co.   v.    Willis. 
127  U.  S.  480,  8  Sup.  Ct.  1217,  32  L.  Ed.  171'. 
See  Boi.MiAUY. 

DESERTION.     An   offence  which   co- 
in the  abandonment  of  the  public  service,  in 
the  army  or  navy,  without  b 

An  absence  without  leave,  with  the  inten- 
tion of  returning,  will  not  amount  to  deser- 
tion; Inhabitants  of  Hanson   v.   Inhabitants 
of  South  Scituate,  11-"-  M 
v.  Tunison,  2  Sumn.  373,  Fed.  Cas.  No.  2,907; 
Collin  v.  Jenkins,  3  Sto.   108,  Fed. 
2.94S.     An  unauthorized  absenting  of  himself 
from    the  military    service  by   an   offl« 
soldier  with   the  intention  of  not   returning. 
It  may  consist  in  an  original  absenting  with- 
out authority,  or  in  an  overstayirfg  of  a  de- 
fined leave  of  a  Davis  Mil.  L.  420. 
To  establish  the  offense,  the  fact  of  the  unau- 
thorized voluntary  withdrawal,  and   the  in- 
tent   permanently    to    abandon    the    s 
must  both  be  proved;  1  >i j:.  J.  Adv.  G< 

In  the  navy  absence  without  leave,  with 
a  probability  that  the  person  does  not  intend 
to  desert,  shall  at  first  be  regarded  as  strag- 
gling, but  at  the  end  of  ten  days  as  deser- 
tion.    Reg.   Navy  815. 

A  deserter  from  the  navy  is.  upon  convic- 
tion, forever  incapable  of  holding  anj 
fice  of  trust  or  profit  under  the  United 
States  or  of  exercising  any  rights  of  citizens 
thereof.  R.  S.  §§  1996,  1998.  In  time  of 
war.  the  punishment  may  be  death,  or  as 
the  court-martial  may  adjudge,  and  in  time 
of  peace,  the  above. 

The  act  by  which  a  man  abandons  his  wife 
and  children,  or  either  of  them. 

Wilful  desertion,  as  the  term  is  applied  in 
actions  for  divorce,  Is  the  voluntary  separa- 
tion of  one  of  the  married  parties  from  the 
other,  or  the  voluntary  refusal  to  renew  a 
suspended  cohabitation,  without  JUSI 
tion  either  In  the  ■  ;'  wrongful  eon 

duct  of  the  other.  Slsemore  v.  Slsemore,  17 
Or.  542,  23  Pac.  820.  if  the  wife  leaves  the 
husband  in  consequence  of  a  mere  expres- 
sion on  his  part  that  she  can  go  where  she 
and    refuses    to   return   at    his   request, 

the  husband  is  not  guilty  of  desertion;  Si 
L.  T.  272:  65  J.  P.  246. 

On  proof  of  desertion,  the  courts  possess 
the  power  under  statute,  in  many  States,  to 
compel  support  of  the  wife.  And  a  con- 
tinued  desertion  by   either  husband  or  wife. 


DESERTION 


854 


DESERTION 


after  a  certain  lapse  of  time,  entitles  the 
party  deserted  to  a  divorce,  in  most  states. 
There  must,  however,  be  an  actual  and 
intentional  withdrawal  from  matrimonial  co- 
habitation for  a  statutory  period,  against 
the  consent  of  the  abandoned  party  and 
without  justification;  Tiffany,  Dom.  Rel.  181; 
and  an  intention  to  desert  in  the  mind  of  the 
offender;  Bennett  v.  Bennett,  43  Conn.  313; 
Latham  v.  Latham,  30  Gratt.  (Va.)  307;  Ap- 
peal of  Sowers,  89  Pa.  173;  Bish.  Mar.  Div. 
&  Sep.  1087;  5  Q.  B.  D.  31;  Bradley  v. 
Bradley,  160  Mass.  25S,  35  N.  E.  482;  where 
parties  continue  to  live  together  as  husband 
and  wife  and  other  marital  duties  are  ob- 
served, a  refusal  to  occupy  the  same  bed 
does  not  by  itself  constitute  desertion  ;  Segel- 
baum  v.  Segelbaum,  39  Minn.  25S,  39  N.  W. 
492. 

Desertion  is  established  by  proof  of  a  re- 
fusal to  commence  cohabitation;  Pilgrim   v. 
Pilgrim,  57  la.  370,  10  N.  W.  750 ;  a  refusal 
to  renew  cohabitation,  on  request  of  the  oth- 
er party;  Hanberry  v.  Hanberry,  29  Ala.  719; 
Fellows  v.  Fellows,  31  Me.  342;   Newing  v. 
Newing,  45  N.  J.  Eq.  498,  18  Atl.  106;  Wil- 
liams v.  Williams,  130  N.   Y.  193,  29  N.   E. 
98,   14  L.   R.  A.   220,   27  Am.    St.   Rep.  517; 
Sowers's  Appeal,  89  Pa.  173 ;  causing  a  sep- 
aration, by   driving  the  other  away,   or  by 
cruel  conduct  which  has  that  effect;  14  Ct.  of 
Sess.  Cas.  (4th  Series)  443;  Kinsey  v.  Kinsey, 
37  Ala.  393 ;  Johnson  v.  Johnson,  125  111.  510, 
16  N.  E.  891;  Shrock  v.  Shrock,  4  Bush  (Ky.) 
682;   Lynch    v.    Lynch,    33   Md.   328;  Lea   v. 
Lea,  99  Mass.  493,  96  Am.  Dec.  772 ;  Warner 
v.  Warner,  54  Mich.  492,  20  N.  W.  557;  Mc- 
Vickar  v.  McVickar,  46  N.  J.  Eq.  490,  19  Atl. 
249,  19  Am.   St.  Rep.  422;  a  refusal  by  the 
wife  to  follow  the  husband  when  he  changes 
his  residence;  Hardenbergh  v.  Hardenbergh, 
14  Cal.  654;  Kennedy  v.  Kennedy,  S7  111.  250; 
Hunt  v.  Hunt,  29  N.  J.  Eq.  96 ;  Beck  v.  Beck, 
163  Pa.  649,  30  Atl.  236;  Franklin  v.  Frank- 
lin, 190  Mass.  349,  77  N.  E.  4S,  4  L.  R.  A.  (N. 
S.)  145,  5  Ann.  Cas.  851;    Schuman  v.  Sehu- 
man,  93  Mo.  App.  99;  unless  there  be  good 
reason;    Buell   v.    Buell,    42    Wash.    277,    84 
Pac.  821;   the  mere  refusal  is  not   enough; 
Horn  v.   Horn,  17  Pa.  Super.   Ct.  486.     But 
a  separation  by  mutual  consent  is  not  deser- 
tion; Beller  v.  Beller,  50  Mich.  49,  14  N.  W. 
696;-  Chipchase   v.   Chipchase,  48  N.    J.   Eq. 
549,  22   Atl.   5S8;   Ingersoll   v.   Ingersoll,    49 
Pa.   249,  88  Am.  Dec.  500;  Throckmorton  v. 
Throckmorton,    86    Va.    76S,    11    S.    E.    289; 
Thompson  v.  Thompson,  53  Wis.  153,  10  N. 
W.  166;  neither  is  non-cohabitation;  Jones  v. 
Jones,  13  Ala.  145;  Pidge  v.  Pidge.  3  Mete. 
(Mass.)   257;    Scott  v.    Scott,   Wright  (Ohio) 
469;  Burk  v.  Burk,  21  W.  Va.  445:  to  render 
it  desertion  withdrawal  of  consent  must  be 
shown;    Currier  v.  Currier,  68  N.  J.  Eq.  797, 
64  Atl.  1133;  nor  a  refusal  by  the  husband  to 
follow  the  wife  to  a  new  residence;  for  it  is 
her  duty  to  follow  him;  Frost  v.  Frost,  17 
N.  H.  25L 


Mere  non-support  is  not  always  desertion; 
Bourquin  v.  Bourquin,  33  N.  J.  Eq.  7;  Davis 
v.  Davis,  1  Hun  (N.  Y.)  444 ;  but  if  the  hus- 
band have  the  means  to  support  his  wife, 
and  does  not  do  so,  this  is  a  wilful  desertion ; 
James  v.  James,  5S  N.  H.  266;  but  see  Van 
Dyke  v.  Van  Dyke,  135  Pa.  459,  19  Atl.  1001. 
Refusal  of  sexual  intercourse  is  not  deser- 
tion;  Pfannebecker  v.  Pfannebecker,  133  la. 
425,  110  N.  W.  618,  119  Am.  St.  Rep.  608,  12 
Ann.  Cas.  543;  Williams  v.  Williams,  121  Mo. 
App.  349,  99  S.  W.  42;  Prall  v.  Prall,  58  Fla. 
496,  50  South.  S67,  26  L.  R.  A.  (N.  S.)  577; 
Pratt  v.  Pratt,  75  Vt.  432,  56  Atl.  86  (even 
for  three  years  and  without  physical  ex- 
cuse); Reynolds  v.  Reynolds,  68  W.  Va.  15, 
69  S.  E.  381,  Ann.  Cas.  1912A,  8S9;  physical 
condition  may  justify  refusal;  Pfannebeck- 
er v.  Pfannebecker,  133  la.  425,  110  N.  W. 
618,  119  Am.  St.  Rep.  608,  12  Ann.  Cas.  543 ; 
other  cases  hold  it  desertion;  Raymond  v. 
Raymond  (N.  J.)  79  Atl.  430:  Graves  v. 
Graves,  8S  Miss.  677,  41  South.  384  (desertion 
for  three  years,  followed  by  return  and  re- 
fusal) ;  Sisemore  v.  Sisemore,  17  Or.  542,  21 
Pac.  667;  83  L.  T.  R.  224.  A  wife  who, 
without  cause,  refuses,  cannot  set  up  "deser- 
tion without  reasonable  cause;"  [1901]  P. 
317. 

Involuntary  absence,  on  account  of  sick- 
ness or  business,  if  not  prolonged  beyond 
such  a  time  as  is  reasonable  or  necessary, 
will  not  constitute  desertion;  1  Swab.  &  T. 
88;  Neely  v.  Neely,  131  Pa.  552,  20  Atl.  311; 
or  the  confinement  of  a  wife  in  a  lunatic 
asylum;  Pile  v.  Tile,  94  Ky.  30S,  22  S.  W. 
215.  There  can  be  no  such  thing  as  deser- 
tion by  both  parties;  Wass  v.  Wass.  41  W. 
Va.  126,  23  S.  E.  537.  When  a  wife  is  de- 
serted, she  need  not  hunt  for  her  husband 
or  go  to  the  place  whence  he  has  fled ;  Millo- 
witsch  v.  Millowitsch,  44  111.  App.  357. 

Where  parties  marry  clandestinely  and  on 
an  agreement  to  live  separately  for  the  pres- 
ent, the  separate  living  is  not  a  desertion 
by  the  husband  until  the  wife  demands  that 
thev  should  live  together;  McAllister  v.  Mc- 
Allister, 71  N.  J.  Eq.  13,  62  Atl.  1131. 

In  England  it  is  held  that  if  a  wife  refuses 
to  live  under  the  same  roof  with  her  hus- 
band, except  upon  his  undertaking  not  to 
exercise  his  full  marital  rights,  he  is  justified 
in  separating  himself  from  her,  and  is  not 
guilty  of  desertion  without  reasonable  ex- 
cuse, even  though  he  may  have  committed 
adultery  while  separated  from  her;  [1901] 
P.  317. 

Desertion  is  not  to  be  tested  merely  by  as- 
certaining which  of  the  parties  left  the  mat- 
rimonial home  first.  That  fact  may  be  im- 
material. The  party  who  by  his  pr  her 
act  intends  bringing  the  cohabitation  to  an 
end  commits  the  desertion;  [1899]  P.  278. 
There  is  no  substantial  difference  between 
a  husband  who  puts  an  end  to  cohabitation 
by  leaving  his  wife,  and  a  husband  who  puts 
an  end  to  it  by  persisting  in  a  course  of  con- 


DESERTION 


855 


DESK!  F  A  SEAMAN 


duct  which  obliges  his  wife  to  leave  him; 
[1899]  P.  221,  278,  where  it  was  held  that  a 
husband's  conduct  amounted  to  desertion  al- 
though he  did  not  abandon  her  or  actually 
force  her  to  leave  bis  house,  but  refused 
her  request  to  discharge  a  servant  with 
whom  he  bad  Immoral  relations  or  to  dis- 
continue such  relations.  In  such  a  case  it  is 
held  the  husband  must  be  taken  to  Int  ad 
the  consequences  of  his  own  act.  The  situa- 
tion is  the  same  as  if  be  bad  left  her,  and 
if  the  attitude  of  the  parties  remain  the 
same  for  two  years  the  desertion  i 
plete;  33  L.  J.  P.  CO;  02  L.  T.  330;  68  L.  J. 
P.  91. 

If  husband  and  wife  have  ceased  to  co- 
habit whether  by  the  adverse  act  of  th< 
band  or  wife  or  by  the  mutual  consent  of 
both,  desertion  becomes  from  that  moment 
impossible  t<>  cither,  at  least  until  their  com- 
mon life  and  home  have  been  resumed. 
There  cannot  be  a  desertion  by  the  husband 
unless  the  cohabitation  is  broken  by 
act  of  desertion;  [1904]  P.  389. 

The  Family  Desertion  Act  lias  been  | 
in    Kansas,    Wisconsin,    Massachusetts    and 
North  Dakota. 

See  9  L.  R.  A.  696,  note;  Tiffany;  Schoul- 
er,  Dom.  Rel.;  Divorce;  Legal  Cbueltt. 

DESERTION  OF  A  SEAMAN.  The  aban- 
donment, by  a  sailor,  of  a  vessel  in  which 
he  had  engaged  to  perform  a  voyage,  before 
the  expiration  of  his  time,  and  without 
leave. 

Where  a  seaman  signs  articles  for  a  voy- 
age, agreeing  to  go  to  the  port  where  the 
vessel  is  lying  to  join  her,  and  fails  to  do 
so,  he  is  a  deserter;  In  re  Sutherland,  53 
Fed.  551;  Tucker  v.  Alexandroff,  183  U.  S. 
424,  22  Sup.  Ct.  19.1,  46  L.  Ed.  264,  where  a 
Russian  sailor,  sent  to  the  United  States  as 
one  of  the  force  ordered  to  man  a  cruiser 
then  building,  was  held  a  deserter  within 
the  meaning  of  the  treaty  of  l^.'rj  with  Rus- 
sia, though  he  never  set  foot  on  the  vessel 
and  it  bad  not  been  commissioned. 

Desertion  without  just  cause  renders  the 
sailor  liable  on  his  shipping  articles  for 
damages,  and,  will,  besides,  work  a  for- 
feiture of  bis  wages  previously  earned  ;  .". 
Kent  155.  It  has  been  decided  In  England 
that  leaving  the  ship  before  the  completion 
of  the  voyage  is   not   d<  In   case, — 

first,  of  the  seaman's  entering  the  public 
service,  either  voluntarily  or  by  Impress- 
ment; and.  second,  when  he  is  compelled 
to  leave  it  by  the  Inhuman  treatment  of  the 
captain;  2  Esp.  209;  l  Bell,  Com.  514;  2  C. 
Rob.  2.°>2.  And  see  Cloutman  v.  Tunison, 
1  Sumn.  373,  Fed.  ("as.  No.  2,907;  Si 
Mariners,  2  Pet.  Adm.  393,  Fed.  ''as.  No. 
12,893;  Coffin  v.  Jenkins.  3  Sto.  109.  I-Y 
No.   2.0!^. 

To  justify  the  forfeiture  of  a  seaman's 
wages  for  absence  for  more  than  forty-eight 
hours>,   under    the  provisions   of    the   act   of 


congress  of   Jul  try  in  the 

log-book    of    the   fact    of   his    absence,    made 
by   the  officer  In  of  it  on  I 

which  he  absented  g  the 

name  of  (be  absent  sea ■  tan  with- 

out   permission,    is    indi 

Sh.    &    Adm.    101;    The    Pho  --num. 

l  Wash.  <'.  i.  Cas.  No.  ll,H0; 

•J  12.   296. 

Receiving  a  marine  again  on  board,  and 
his  return  to  duty  with  the  assent  of  the 
master,    is    a    waiver    of    the    forfeitun 

previously  incurred;    Whitton  v.  The 
Commerce,   l   Pet   Adm.   160,  ^.  No. 

17,604 

DESERVING.  Worthy  or  meritorious, 
without  regard  to  condition  or  drcum 

es.  in  no  sense  of  the  word  is  it  limited  to 
pel-sons  in  need  of  assistance,  or  objects 
which  come  within  the  class  of  charitable 
Nichols  v.  Allen,  130  Mass.  211,  39 
Am.  Rep.  4  1". 

DESIGN.  As  a  term  of  art,  "the  giving 
of  a  visible  form  to  the  conceptions  of  the 
mind,  or  in  other  words  to  the  invention." 
Binns  v.  Woodruff,  4  Wash.  O.  C.  48,  Fed. 
Cas.  No.  1,424.     See  Ooptbioht;    Patents. 

Plan,  scheme,  or  intention  carried  into  ef- 
fect. Catlin  v.  Fire  Ins.  •',,.,  i  Sumn.  434, 
Fed.  Cas.  No.  2.522.  A  project,  an  idea.  3 
H.  &  N.  301. 

As  used  in  an  indictment  for  having  in 
one's  possession  materials  for  counterfeiting 
it  may  refer  to  the  purpose  for  which  the 
materials  were  originally  designed,  and  not 
to  criminal  intent  in  the  defendant  to  use 
them;   Commonwealth  v.  Morse.  2  Mass.  r_'s. 

DESIGNATIO     PERS0N/E.     See    Descbit- 

TIO    I'l  KSON.T.. 

DESIGNATION.    The  expression   used  by 

a   testator    to    denote   a   person  or   thing 
stead  of  the  name  i 

A  bequest  of  the  farm  which  the  testator 
bought  of  a  person  named,  or  of  a  picture 
Which  he  owns,  painted  by  a  certain  artist, 
would  be  a  designation  of  the  thing. 

DESIRE.  The  word  desire,  in  a  will. 
raises  a  trust,  where  the  objects  of  that 
desire  are  specified  :  Vandyek  v.  Van  Beur- 
eu,  1  Cal.  (N.  Y.i  84.    See  n  Words. 

DESPATCHES.  Official  communications 
of  official  persons  on  the  affairs  of  govern- 
ment. 

in  general,  the  bearer  of  despatches  Is 
entitled  to  all  the  facilities  that  can  he  glv- 
en  him,  in  bis  own  country,  or  in  a  neutral 
state;  but  a  neutral  cannot,  in  general,  be 
the  bearer  of  despatches  of  one  of  the  bel- 
ligerent parties;  6  C.  R  ib.  465.  E 
54;    1  Fdw.  271. 

DESPERATE.     Of  which  there  is  no  hope. 

This  term  is  used  frequently  in  making 
an  inventory  of  a  decedent's  effects,  when  a 
debt   is   considered   so   bad  that  there   is  no 


DESPERATE 


856 


DESTROY 


hope  of  recovering  it.  It  is  then  called  a 
desperate  debt,  and,  if  it  be  so  returned, 
it  will  be  prima  facie  considered  as  desper- 
ate. See  Toll.  Ex.  248 ;  2  Wms.  Ex.  644 ;  1 
Chitt.  Pr.  5S0;  Schultz  v.  Pulver,  11  Wend. 
(N.  T.)  365. 

DESPOIL.  This  word  involves  in  its  sig- 
nification, violence  or  clandestine  means,  by 
which  one  is  deprived  of  that  which  he  pos- 
sesses.    Sunol  v.  Hepburn,  1  Cal.  268. 

DESPOT.  This  word,  in  its  original  and 
most  simple  acceptation,  signifies  master 
and  supreme  lord;  it  is  synonymous  with 
monarch;  but  taken  in  bad  part,  as  it  is 
usually  employed,  it  signifies  a  tyrant. 

DESPOTISM.  That  abuse  of  government 
where  the  sovereign  power  is  not  divided, 
but  united  in  the  hands  of  a  single  man, 
whatever  may  be  his  official  title.  It  is 
not,  properly,  a  form  of  government.  Toul- 
lier,  Dr.  Civ.  Fr.  tit.  prel.  n.  32;  Rutherf. 
Inst.  b.  1,  c.  20,  §  1.    See  Government. 

DESTINATION.  The  intended  applica- 
tion of  a  thing. 

For  example,  when  a  testator  gives  to  a 
hospital  a  sum  of  money  to  be  applied  in 
erecting  buildings,  he  is  said  to  give  a  des- 
tination to  the  legacy.  Mill-stones  taken 
out  of  a  mill  to  be  picked,  and  to  be  re- 
turned, have  a  destination,  and  are  con- 
sidered real  estate,  although  detached  from 
the  freehold.  Heirlooms,  although  personal 
chattels,  are,  by  their  destination,  consid- 
ered real  estate;  and  money  agreed  or  di- 
rected to  be  laid  out  in  land  is  treated  as 
real  property;  Craig  v.  Leslie,  3  Wheat.  (U. 
S.)  577,  4  L.  Ed.  460;  2  Bell,  Com.  2; 
Erskine,  Inst.  2.  2.  14;  Fonbl.  Eq.  b.  1,  c.  6, 
§  9.     See  Easement;  Fixtures. 

In  Common  Law.  The  port  at  which  a  ship 
is  to  end  her  voyage  is  called  her  port  of 
destination.     Pardessus,  n.  600. 

The  phrases  "port  of  destination"  and 
"port  of  discharge"  are  not  equivalent;  TJ. 
S.  v.  Barker,  5  Mason  404,  Fed.  Cas.  No.  14,- 
516.     See  Sheridan  v.  Ireland,  66  Me.  65. 

Sending  goods  to  their  destination  means 
sending  them  to  a  particular  place,  to  a 
particular  person  who  is  to  receive  them 
there ;  not  sending  them  to  a  particular 
place  without  saying  to  whom ;  15  A.  B.  D. 
43. 

DESTROY.  In  the  act  of  congress  pun- 
ishing with  death  any  one  destroying  ves- 
sels, it  means  to  unfit  the  vessel  for  service, 
beyond  the  hopes  of  recovery,  by  ordinary 
means.  U.  S.  v.  Johns,  1  Wash.  C.  C.  363, 
Fed.  Cas.  No.  15,481;  •  TJ.  S.  v.  Johns,  4  Dall. 
(TJ.  S.)  412,  1  L.  Ed.  888. 

A  will  burned,  cancelled,  or  torn,  animo 
revocandi  is  destroyed ;  Johnson  v.  Brails- 
ford,  2  Nott  &  McC.  (S.  C.)  272.  10  Am.  Dec. 
601.  The  scratching  out  of  the  signature 
with  a  knife,  in  England,  has  been  held  to 
be   tearing   or   otherwise   destroying  a   will 


in  the  sense  of  the  statute;   56  L.  J.  R.  Pr. 
&  D.  96. 

DETACH  I  ARE.  By  writ  of  attachment 
or  course  of  law,  to  seize  or  take  into  cus- 
tody another's  goods  or  person.  Cunning- 
ham. 

DETAIL.  One  who  belongs  to  the  army, 
but  is  only  detached,  or  set  apart,  for  the 
time  to  some  particular  duty  or  service,  and 
who  is  liable  at  any  time,  to  be  recalled  to 
his  place  in  the  ranks.  In  re  Strawbridge, 
39  Ala.  379. 

DETAINER.  Detention.  The  act  of  keep- 
ing a  person  against  his  will,  or  of  with- 
holding the  possession  of  goods  or  other  per- 
sonal or  real  property  from  the  owner. 

Detainer  and  detention  are  very  nearly  synony- 
mous. If  there  be  any  distinction,  it  is  perhaps 
that  detention  applies  rather  to  the  act  considered 
as  a  fact,  detainer  to  the  act  considered  as  some- 
thing done  by  some  person.  Detainer  is  more  fre- 
quently used  with  reference  to  real  estate  than  In 
application   to   personal    property. 

All  illegal  detainers  of  the  person  amount 
to  false  imprisonment,  and  may  be  reme- 
died by  habeas  corpus.  Hurd,  Hab.  Corp. 
209. 

A  detainer  or  detention  of  goods,  is  either 
lawful  or  unlawful ;  when  lawful,  the  party 
having  possession  of  them  cannot  be  de- 
prived of  it.  It  is  legal  when  the  party  has 
a  right  to  the  property,  and  has  come  lawful- 
ly into  possession.  It  is  illegal  when  the 
taking  was  unlawful,  as  in  the  case  of  forci- 
ble entry  and  detainer,  although  the  party 
may  have  a  right  of  possession;  but  in  some 
cases  the  detention  may  be  lawful,  although 
the  taking  may  have  been  unlawful ;  Moore 
v.  Shenk,  3  Pa.  20,  45  Am.  Dec.  618.  So  also 
the  detention  may  be  unlawful  although  the 
original  taking  was  lawful:  as  when  goods 
were  distrained  for  rent,  and  the  rent  was 
afterwards  paid ;  or  when  they  were  pledg- 
ed, and  the  money  borrowed  and  interest 
was  afterwards  paid;  or  if  one  borrow  a 
horse,  to  ride  from  A  to  B,  and  afterwards 
detain  him  from  the  owner,  after  demand, 
such  detention  is  unlawful,  and  the  owner 
may  either  retake  his  property,  or  have  an 
action  of  replevin  or  detinue;  1  Chit.  Pr. 
135.  In  these  and  many  other  like  cases  the 
owner  should  make  a  demand,  and,  if  the 
possessor  refuses  to  restore  them,  trover, 
detinue,  or  replevin  will  lie,  at  the  option  of 
the  plaintiff.  In  some  cases  the  detention 
becomes  criminal  although  the  taking  was 
lawful,  as  in  embezzlement. 

There  may  also  be  a  detainer  of  land; 
and  this  is  either  lawful  and  peaceable,  or 
unlawful  and  forcible.  The  detainer  is 
lawful  where  the  entry  has  been  lawful 
and  the  estate  is  held  by  virtue  of  some 
right.  It  is  unlawful  and  forcible  where 
the  entry  has  been  unlawful  and  with  force, 
and  it  is  retained  by  force  against  right; 
or  even  where  the  entry  has  been  peaceable 


DETAINER 


857 


DETECTIVE 


and  lawful,  if  the  detainer  be  by  force  and 
against  right;  as,  if  a  tenant  at  will  should 
detain  with  force  after  the  will  has  deter- 
mined, he  will  be  guilty  of  a  forci! 
tainer;  2  Chltt  l'r.  238;  Com.  Dig.  Detain- 
er^ 2;  People  v.  Bickert,  8  Cow.  (N.  Y. ) 
226;  People  v.  Anthony,  4  Johns.  (N.  V.i 
198;  Carpenter  v.  Shepherd,  4  Bibb  (Ky.) 
501.  See  Ladd'v.  Dubroca,  ir,  Ala.  421  ;  May 
v.  Luckett,  54  Mo.  437;  Doty  v.  Burd 
111.  473.  A  forcible  detainer  is  a  distinct  of- 
fence from  a  forcible  entry ;  People  v.  Rick- 
ert, 8  Cow.   (N.  Y.)  22G.     See  Fobcieij:  Bw- 

TBT   A  XI.  1  >!  TAINEB, 

In  Practice.  A  writ  or  instrument,  i 
or  made  by  a  competent  officer,  authorizing 
the  keeper  of  a  prison  to  keep  in  his  cus- 
tody a  person  therein  named.  A  detainer 
may  be  lodged  against  one  within  the  walls 
of  a  prison,  on  what  account  soever  he  is 
there;  Com.  Dig.  Process,  E  (3  B).  This 
writ  was  superseded  by  l  ft  2  Vict  c.  110, 
§§  1,  2.     See  Habeas  Corpus. 

DETECTIVE.  One  whose  business  It  Is 
to  watch,  and  furnish  information  concern- 
in  lt.  alleged  wrongdoers  by  adroitly  investi- 
gating their  haunts  and  habits.  In  England 
they  are  usually  police  officers  in  plain 
clothes,  and  are  the  successors  of  the  Bow 
Street  runners.  In  this  country  there  are 
usually  detectives  in  the  police  department 
of  the  large  cities,  but  the  term  is  applied 
more  particularly  to  the  persons  engaged  in 
the  detection  of  crime  and  the  prosecution 
of  such  investigations  as  in  England  are 
made  through  the  private  inquiry  offices. 
The  latter  correspond  to  the  private  detec- 
tive agencies  in   the  United   States. 

Where  a  detective  is  employed  to  arrest 
and  prosecute  persons  engaged  in  unlawful 
acts,  the  employer  will  be  liable  for  the  de- 
tective's arrest  of  an  innocent  pi 
Evansville  &  T.  H.  R.  Co.  v.  McKee,  99  Ind. 
519,  50  Am.  Rep.  102.  It  has  been  said  the 
question  is  not  whether  the  particular  act 
was  authorized,  but  whether  the  servant 
was  engaged  in  the  master's  business,  and 
acting  within  the  general  scope  of  his  au- 
thority; Clark  v.  Starin,  47  Hun  (N.  Y.) 
345.  In  Chicago  City  R.  Co.  v.  McMahon, 
103  111.  485,  12  Am.  Rep.  29,  a  detective, 
employed  to  gather  evidence  in  a  pending 
case,  offered  a  bribe  to  a  witness,  and  it  was 
held  to  be  the  act  of  the  employer.  Where 
a  detective  was  employed  with  general  in- 
structions not  to  make  an  arrest  without 
first  consulting  the  attorneys  of  a  railroad, 
but  with  authority  to  make  an  arrest  if  the 
proof  was  clear,  the  company  was  held  li- 
able for  the  arrest  of  an  innocent  person; 
Eichengreen  v.  R.  R.,  on  Tenn.  229,  34  8.  W. 
219,  31   L.  R.  A.  702,  54  Am,  St.   Rep. 

One  who  joins  a  conspiracy  for  the  pur- 
pose of  robbery,  In  order  to  expose  it,  and 
honestly  carries  out  the  plan,  is  not  an  ac- 
cessory before  the   fact,   though   he  encour- 


ages the  others  to  the  commission  of  the 
crime,  with  the  intent  that  they  shall  be 
punisl  i.  v.  Holllster,  157  Pa.  13,  27 

Atl.  386,  25   1..    R,    \    :: 

Com.,  84  Pa.  L87;  TayL  l]v.  |  071;  Whart. 
Cr.  Ev.  §  410. 

A  detective  may  aid  in  the 
an   offence   in   conjunction   with   a   criminal, 
and    the    mere    fact    wil 
guilty  party.     The  detective  I 
or  urge,  or  lend  in  the  commission  of  the  of- 

The    defendant    must     a<  t    fr« 
his  own  motion;    state  v.  Currie,   13  N.  I>. 
655,  102  X.  W.  875,  69  L.  B.  A  405,  U2 
St.  Bep.  687.     The  assistance  of  a  deb 
in  a  burglary  is  no  defence  to  a  person  who 
himself   does   every    act   essential    to   • 
lute  a   burglary;    >rf.     A  man   may   direct   his 

servant  to  appear  to  encoun 
of  a  thief  and  lead  him  on  until  the  offense 
is  complete,  so  long  as  he  does  not  induce  the 
original   intent,  but  only  provides  for  d 
ery;    McAdams  v.  State,  8  Lea  (Tenn.)  456; 
Thompson  v.  State.  18  II 
364;    Varner  v.  State,  72  6a  ife  v. 

Adams.  11."  N.  O.  77".  20  S.  E.  7: 
the  scheme  was  concocted,  and  the  partic- 
ular building  selected  (with  the  i 
the  proprietor),  and  the  defendant  was  per- 
detectlve  to  assist  in  breaking 
and  entering  no  burglary  was  committed: 
State  v.   non-lass-.   -H    Kan.   61? 

Open  "shadowing,"  so  as  to  proclaim  the 
person  a  suspect,  is  actionable;  Schultz  v. 
Ins.  Co..  151  Wis.  537,  139  N.  W.  386,  43  I.. 
R.  A.  (N.  S.)  520. 

DETENTION.     The  act  of  retaining  and 
ting  the  removal  of  a  person  or 
erty. 

The  detention  may  he  occasioned  by  acci- 
dents, as  the  detention  of  a  ship  by  calms, 
or  by  ice;    or  it  may  be  hostile  leten- 

tion  of  persona  or  ships  in  a  f(  intry 

by  order  of  the  government.  In  gel  eral,  the 
detention  of  a  ship  does  not  change  the  na- 
ture of  the  contrail:  and  th<  lilors 
will  be  entitled  to  their  wages  during  the 
time  of  the  detention;  l  Bell,  Com.,  "th  ed. 
"il7;  MaekeMey,  Civ.  Law  |  210;  2  1'ars. 
Sh.  ft  Adin.  f,.°>.     See  I >i:r aimr. 

DETERMINABLE.  Liable  to  come  to  an 
end  by  the  happening  of  a  conting<  u<         as, 

a  determinable  fee. 

DETERMINABLE      FEE      (i  d     a 

qualified    or   base    f<  ias    a 

qualification  subjoined  to  it,  and  which 
be  determined  whenever  the  qualifl 
nexed  to  it  is  at  an  end.     a  limitation  to  a 
man  and   hi  D   the  part  of  his  father 

affords  an  example  of  this 
Littleton  §  . 

Est  449;  2  Bla.  Com.  109;  Cruise,  Dig.  tit. 
1,  g  82.  see  i  Wajshb.  K.  P.  62;  McLane  v. 
Bovee,  35  Wis. 

DETERMINATE.      That    which    is    ascer- 


DETERMINATE 


858 


DETINUE 


tained;  what  is  particularly  designated :  as, 
if  I  sell  you  my  horse  Napoleon,  the  article 
sold  is  here  determined.  This  is  very  differ- 
ent from  a  contract  by  which  I  sell  you  a 
horse,  without  a  particular  designation  of 
any  horse. 

DETERMINATION.  The  decision  of  a 
court  of  justice.     See  Decree;    Judgment. 

The  end,  the  conclusion,  of  a  right  or  au- 
thority :  as,  the  determination  of  a  lease, 
Com.  Dig.  Estates  by  Grant  (G  10,  11,  12). 
The  phrase  "determination  of  will"  is  used 
of  the  putting  an  end  to  an  estate  at  will. 
2  Bla.  Com.  146. 

The  determination  of  an  authority  is  the 
end  of  the  authority  given ;  the  end  of  the 
return-day  of  a  writ  determines  the  author- 
ity of  the  sheriff ;  the  death  of  the  principal 
determines  the  authority  of  a  mere  attorney. 

DETERMINE.  To  come  to  an  end.  To 
bring  to  an  end.  2  Bla.  Com.  121 ;  1  Washb. 
R.  P.  3S0. 

DETINET  (Lat.  detinere,  to  detain;  de- 
tinet,  he  detains).  In  Pleading.  An  action 
of  debt  is  said  to  be  in  the  detinet  when  it 
is  alleged  merely  that  the  defendant  with- 
holds or  unjustly  detains  from  the  plaintiff 
the  thing  or  amount  demanded. 

The  action  is  so  brought  by  an  executor,  1 
Wms.  Saund.  1;  and  so  between  the  con- 
tracting parties  when  for  the  recovery  of 
such  things  as  a  ship,  horse,  etc. ;  3  Bla. 
Com.  156. 

An  action  of  replevin  is  said  to  be  in  the 
detinet  when  the  defendant  'retains  posses- 
sion of  the  property  until  after  judgment  in 
the  action ;    Bull.  N.  P.  52 ;    Chit.  PI.  145. 

It  is  said  that  anciently  there  was  a  form 
of  writ  adapted  to  bringing  the  action  in 
this  form;  but  it  is  not  to  be  found  in  any 
of  the  books;    1  Chit.  PL  145.' 

In  some  of  the  states  the  defendant  is  al- 
lowed to  retain  possession  upon  giving  a 
bond  similar  to  that  required  of  the  plaintiff 
in  the  common-law  form;  the  action  is  then 
in  the  detinet ;  3  Sharsw.  Bla.  Com.  146,  n. ; 
Bower  v.  Tallman,  5  W.  &  S.  (Pa.)  556;  Bee- 
be  v.  De  Baun,  8  Ark.  510;  Zachrisson  v. 
Ahman,  2  Sandf.  (N.  Y.)  68;  Ingalls  v.  Bulk- 
ley,  13  111.  315;  Boswell  v.  Green,  25  N.  J. 
L.  390.  The  jury  are  to  find  the  value  of  the 
chattels  in  such  case,  as  well  as  the  damage 
sustained.  See-  Debet  et  Detinet  ;  Deti- 
ntjit. 

DETINUE  (Lat.  detinere,  to  withhold). 
In  Practice.  A  form  of  action  which  lies  for 
the  recovery,  in  specie,  of  personal  chattels 
from  one  whp  acquired  possession  of  them 
lawfully  but  retains  it  without  right,  together 
with  damages  for  the  detention.  3  Bla.  Com. 
151. 

It  is  generally  laid  down  as  necessary  to  the  main- 
tenance of  this  action  that  the  orignal  taking  should 
have  been  lawful,  thus  distinguishing  it  from  re- 
plevin, which  lies  in  case  the  original  taking  is  un- 
lawful. Brooke,  Abr.  Detinue,  21,  36,  63.  It  Is  said, 
however,  by  Chitty,  that  it  lies  in  cases  of  tortious 


taking,  except  as  a  distress,  and  that  it  Is  thus  dis- 
tinguished from  replevin,  which  lay  originally  only 
where  a  distress  was  made,  as  was  claimed,  wrong- 
fully ;  1  Chit.  PI.  112.  See  3  Sharsw.  Bla.  Com.  152. 
In  England  this  action  has  yielded  to  the  more 
practical  and  less  technical  action  trover,  but  was 
formerly  much  used  for  the  recovery  of  slaves ; 
Kent  v.  Armistead,  4  Munf.  (Va.)  72 ;  Hansen's 
Adm'r  v.  Israel,  3  Bibb  (Ky.)  510 ;  Hooper's  Adm'r 
v.  Hooper,  1  Ov.  (Tenn.)  187 ;  Foscue  v.  Eubank, 
32  N.  C.  424. 

In  detinue  these  points  are  necessary :  L 
The  plaintiff  must  have  property  in  the  thing 
sought  to  be  recovered.  2.  He  must  have  the 
right  to  its  immediate  possession.  3.  It  must 
he  capable  of  identification.  4.  That  the 
property  be  of  some  value.  5.  The  defendant 
must  have  had  possession  at  some  time  prior 
to  the  institution  of  the  action.  Hefner  v. 
Fuller,  58  W.  Va.  159,  52  S.  E.  513,  3  L.  R. 
A.  (N.  S.)   13S,  112  Am.  St.  Rep.  961. 

The  action  lies  only  to  recover  such  goods 
as  are  capable  of  being  identified  and  distin- 
guished from  all  others;  Audr.  Steph.  PL 
79,  n. ;  Com.  Dig.  Detinue,  B,  C ;  Co.  Litt.  2S6 
b;  Lewis  v.  Hoover,  1  J.  J.  Marsh.  (Ky.) 
500,  19  Am.  Dec.  120;  Hail  v.  Reed,  15  B. 
Monr.  (Ky.)  479;  Wright  v.  Ross,  2  G. 
Greene  (la.)  266;  Goff  v.  Gott,  5  Sneed. 
(Tenn.)  562;  in  cases  where  the  defendant 
had  originally  lawful  possession,  which  he  re- 
tains without  right;  Melton  v.  McDonald,  2 
Mo.  45,  22  Am.  Dec.  437 ;  Spaulding  v.  Scan- 
land,  4  B.  Monr.  (Ky.)  365;  Stoker  v.  Yerby, 
11  Ala.  322;  as  where  goods  were  delivered 
for  application  to  a  specific  purpose;  4  B.  & 
P.  140;  but  a  tort  in  taking  may  be  waived, 
it  is  said,  and  detinue  brought;  Owings  v. 
Frier,  2  A.  K.  Marsh.  (Ky.)  268,  12  Am.  Dec. 
393;  Schulenberg  v.  Campbell,  14  Mo.  491 ; 
O'Neill  v.  Henderson,  15  Ark.  235,  60  Am. 
Dec.  568.  That  it  lies  whether  the  taking 
was  tortious  or  not,  see  Beazley  v.  Mitchell, 
9  Ala.  780;  Overfield  v.  Bullitt,  1  Mo.  749. 
It  may  be  maintained  for  the  recovery  of  a 
policy  of  insurance  where  it  has  been  paid 
for,  but  is  withheld  by  the  agent;  Robinson 
v.  Peterson,  40  111.  App.  132;  or  to  recover 
a  promissory  note;  Hefner  v.  Fidler,  58  W. 
Va.  159,  52  S.  E.  513,  3  L.  R.  A.  (N.  S.)  138, 
112  Am.  St.  Rep.  961;  Brown  v.  Pollard,  89 
Va.  696,  17  S.  E.  6.  The  property  must  be  in 
existence  at  the  time ;  Caldwell  v.  Fenwick, 
2  Dana  (Ky.)  332;  Lindsey  v.  Perry,  1  Ala. 
203;  Bethea  v.  McLennon,  23  N.  C.  523;  see 
Haile  v.  Hill,  13  Mo.  612;  but  need  not  be  in 
the  possession  of  the  defendant ;  Pool  v.  Ad- 
kisson,  1  Dana  (Ky.)  110;  Haley  v.  Rowan, 
5  Yerg.  (Tenn.)  301,  26  Am.  Dec.  268;  Gaines 
v.  Harvin,  19  Ala.  491 ;  Barksdale.  v.  Apple- 
berry,  23  Mo.  389;  Easley's  Ex'rs  v.  Easley, 
18  B.  Monr.   (Ky.)  86. 

The  plaintiff  must  have  had  actual  pos- 
session, or  a  right  to  immediate  possession ; 
Melton  v.  McDonald,  2  Mo.  45,  22  Am.  Dec. 
437;  Burnley  v.  Lambert,  1  Wash.  (Va.) 
308;  Smart  v.  Clift,,  4  Bibb  (Ky.)  518; 
Haynes  v.  Crutchfield,  7  Ala.  189;  Miles  v. 
Allen,  28  N.  C.  88 ;   O'Neal  v.  Baker,  47  N.  C. 


DETINUE 


859 


DETINUE 


168;  Hughes  v.  Jones,  2  Md.  Ch.  Dec.  178; 
but  ft  special  property,  as  that  of  a  bailee, 
with  actual  possession  at  the  time  of  delivery 
to  the  defendant,  is  sufficient;  2  Wins.  Saund. 
47  b;  Boyle  v.  Townes,  9  Leigh  (Vn.i  158; 
Spaulding  v.  Scanland,  4  B.  Monr.  (Ky. 
Melton  v.  McDonald,  2  Mo.  45,  22  Am.  Dec 
437;  Bryan  v.  Smith,  22  Ala.  534.  A  mere 
equitable  claim  reserved  by  a  vendor  on  the 
sale  of  personal  property  for  the  unpaid  pur- 
chase money,  Is  not  sufficient  title  to  author- 
ize a  recovery  in  detinue;  Lucas  v.  I'ittman, 
Pi  Ala.  616,  10  South.  603.  Hither  want  of 
title  in  the  plaintiff  or  the  absence  of 
possession  in  defendant,  when  the  action  was 
it.  will  prevent  plaintiffs  recovery,  as 
constructive  possession  in  defendant  from 
the  fact  that  he  bad  the  title  is  not  sufficient; 
Burns  v.  Morrison,  36  W.  Va.  423,  15  S.  11 
62.  A  demand  is  not  requisite  except  to  en- 
title the  plaintiff  to  da 
between  demand  and  the  commencement  of 
the  action;  Cole  v.  Cole's  Adin'r,  4  Bibb 
(Ky.)  340;  Schulenberg  v.  Campbell.  11  Mo. 
401;  Jones  v.  Henry.  .",  Pitt.  (Ky.)  40;  Mor- 
timer v.  Brumfield,  3  Munf.  (Va.)  122;  Dunn 
v.  Davis,  12  Ala.  135;  Eastman  v.  Burke 
County  Com'rs,  114  N.  C.  524,  19  S.  B.  599. 

The  declaration  may  state  a  bailment  or 
trover;  though  a  simple  allegation  thai  the 
goods  came  to  the  defendant's  hands  is  suf- 
ficient; Brooke,  Abr.  Detinue,  10.  The  bail- 
ment or  trover  alleged  is  not  traversable; 
Brooke,  Abr.  Detinue,  1,  2,  .",0.  It  must  de- 
scribe the  property  with  accuracy;  Felt  v. 
Williams,  1  Scam.  (111.)  206;  March  v. 
Leckie,  35  X.  C.  172.  55  Am.  Dec,  431;  Wright 
v.  Ross.  2  Greene  (la.)  266. 

The  pica  of  non  dettnet  is  the  general  is- 
sue, audi  special  matter  may  be  given  in  evi- 
dence under  it;  Co.  Litt  283;  16  E.  L.  &  Eq. 
514;  Stratton  v.  Minnis,  2  Munf.  (Va.)  329; 
Morrow  v.  Hatfield,  6  Bumphr.  (Tenn.)  108; 
Lucas  v.  Liftman,  94  Ala.  616,  10  South.  Cm:;; 
including  title  in  a  third  person;  Tanner  v. 
Allison,  3  Dana  (Ky.)  -122;  McCurry  v. 
Hooper,  12  Ala.  823.  40  Am.  Dec  280;  evic- 
tion, or  accidental  loss  by  a  bailee;  Rucker 
v.  Hamilton,  3  Dana  (Ky.)  3d.  The  plea  of 
not  guilty  is  not  appropriate;  Robii 
Peterson,  40  111.  App.  132. 

The  defendant  in  this  action  frequently 
prayed  garnishment  of  a  third  person,  who 
he  alleged  owned  or  bad  an  Interest  in  the 
thing  demanded;  but  tins  he  could  not  do 
without  confessing  the  possession  of  the 
thing  demanded,  and  making  privity  of  bail- 
ment; Brooke.  Abr.  Garnishment,  l,  Inter- 
pleader, 3.  If  the  prayer  of  garnishment  was 
allowed,  a  sri.  fa.  issued  against  the  person 
named  as  garnishee.  If  be  made  default,  the 
plaintiff  recovered  against  the  defendant  the 
chattel  demanded,  hut  no  damages.  If  the 
garnishee  appeared,  and  the  plaintiff  made 
default,  the  garnishee  recovered.  If  both  ap- 
peared, and  the  plaintiff  recovered,  he  had 
judgment  against  the  defendant  for  the  chat- 


tel demanded,  and  a  distringas  in  execution ; 
and   against   the   gai  a    judgment    for 

damages,  and  a  ft.  fa.  in  execution. 

The    Judgment    is    in    the    alternative    that 
the  plaintiff  recover  the  the  value 

thereof  if  be  cannot  have  the  property  it- 
self; Haynes  v.  <  1.  7  Ala.  189  :  Car- 
land  v.  Bugg,  5  Munf.    i  \  lei  v. 

r,    1    Bibb    (Ky.  >    484 ;    Th 
Thompson's    Ex'rs,    7    P.    Monr.    (Ky.)    421; 
Waite    v.    Dolby,   S    Bumphr.    (Tenn.) 
Mulliken    v.    Creer,    5    Mo.    489;     Murphy    v. 
Moore,  39  X.  O.  118;    Wilson  v.  Buchanan,  7 
Gratt    I  \'a.  i   343;    Blakely's  Adm'r  v. 
can,  4  Tex.   184;    Arthur  v.  [ngles,  31  \V.  Va. 
J  S.  B.  872,  11   L.  K.  A.  o.'.T:    with  dam- 
,   r  the  detenti  i  v.  m  •!.• 

2::  X.  0.  523;  Balle  v.  Hill,  13  Mo.  612; 
Hunt's  Adm'r  v.  Martin's  Adin'r,  S  Gratt. 
i  Va..  le    v.    Conolly,    10    Ala.    271  : 

and  full   costs,     one  cannot    i  afi   dam- 

DOth  hire  and  the  ordinary  wear  and 
tear  of  the  property  sued  for,  as  hire  in- 
cludes ordinary  wear  and  tear;  White  v.  R. 
Co.,  90  Ala.  253,  7  South.  010. 

The   verdhl    and  judgment   must  be   such 
that  a  special  remedy  may  be  bad  for  a  re- 
covery  of  the   goods  detained,   or  a    -      i 
tion  in  value  for  each  parcel  in  ca 
either  of  them  cannot  be  returned;  Haynes  v. 
Crutchfleld,  7  Ala.  189;    Bell  v.  Pharr,  7  Ala. 
807;   Goodman  v.  Lloyd.  2  Bumphr.  [1 
09;    Glascock    v.    Hays,    4    Dana    (Ky. 
Penny  v.   Davis.  3  B.  Monr.    (Ky.)  313. 
See  'Conversion  ;    Tboveb;    Replevin. 
DETINUE    OF    CHARTERS.      A  man   may 
have  d  stinue  for  de  ids  and  chartei 
ing  land,  but  if  they  Concern  the  freehold,  it 
must  be  in  C.  B.  and  no  other  court     Cun- 
am. 
DETINUE    OF    GOODS    IN    FRANK    MAR- 
RIAGE.    A  writ  formerly  available  to  a  wife 
after  a  divorce,  for  the  recovery  of 
given  with  her  in  marriage     Mo/..  &  W.  Diet 
DETINUIT    (Lat,  he  detained).     In  Plead- 
ing.     An   action   of  replevin   is   said   to   be  in 
the  detinuit  when  the  plaintiff  acquires  pos- 
session of  the  property  claimed  by  means  of 
the  writ.     The  right  to  retain   is.  of  c 
subject  in  such  case  to  the  judgment  of  the 
court  upon  bis  title  to  the  property  cla 
Lull.  X.  P.  521.    The  declaration  in  sue!. 

not  state  the  value  of  th  -  :    Brit- 

ton  v.  Morss,  •:  Blackf.  (Ind.)  U59;  Haynes 
v.  Crutchfleld,  7  Ala.   189. 

The  judgn  ent  in  such  case  Is  for  the  dam- 
UStained    by    the   unjust   taking    or   de- 
tention,   or   both,    if    both    were    Illegal,    and 
for  cods:    4  Bouvier,  Inst.  n.  3562. 

DEUTEROGAMY.     \  Becond  marriage  aft- 
er the  death  of  a  former  husband  or  wife. 

DEVASTATION.       Wasteful     use     of     the 
property  of  a  deceased  person:     as.  for  ex- 
travagant funeral   or  other  unnecessary  ex- 
.     2  Bla.  Com. 


DEVASTAVIT 


860 


DEVASTAVIT 


DEVASTAVIT.  The  mismanagement  and 
waste  by  an  executor,  administrator,  or  oth- 
er trustee,  of  the  estate  and  effects  trusted 
to  him  as  such,  by  which  a  loss  occurs. 

Devastavit  by  direct  abuse  takes  place 
when  the  executor,  administrator,  or  trustee 
sells,  embezzles,  or  converts  to  his  own  use 
goods  intrusted  to  him;  Com.  Dig.  Adminis- 
tration (I  1)  ;    Smith  v.  Ayer,  101  U.  S.  327, 

25  L.  Ed.  955 ;  releases  a  claim  due  to  the 
estate;  3  Bacon,  Abr.  700;  Cro.  Eliz.  43; 
De  Diemar  v.  Van  Wagenen,  7  Johns.  (N. 
Y.)  404;  Dawes  v.  Boylston,  9  Mass.  352,  6 
Am.  Dec.  72 ;  or  surrenders  a  lease ;  People 
v.  Pleas,  2  Johns.  Cas.  (N.  Y.)  376;  3  P, 
Wins.  330;  Camp  v.  Smith,  68  N.  C.  537; 
below  its  value.  These  instances  sufficiently 
show  that  any  wilful  waste  of  the  property 
will  be  considered  a  direct  devastavit.  See 
Lacoste  v.  Splivalo,  64  Cal.  35,  30  Pac.  571. 

Devastavit  by  mal-administration  most  fre- 
quently occurs  by  the  payment  of  claims 
which  were  not  due  nor  owing,  or  by  pay- 
ing others  out  of  the  order  in  which  they 
ought  to  be  paid,  or  by  the  payment  of  lega- 
cies before  all  the  debts  are  satisfied;  Thom- 
as v.  Riegel,  5  Rawle  (Pa.)  266;  Chapin  v. 
Waters,  110  Mass.  195;  Lewis  v.  Mason's 
Adm'r,  84  Va.  731,  10  S.  E.  529. 

Devastavit  by  neglect.  Negligence  on  the 
part  of  an  executor,  administrator,  or  trus- 
tee may  equally  tend  to  the  waste  of  the  es- 
tate as  the  direct  destruction  or  mal-admin- 
istration of  the  assets,  and  render  him  guilty 
of  a  devastavit.  The  neglect  to  sell  the 
goods  at  a  fair  price,  within  a  reasonable 
time,  or,  if  they  are  perishable  goods,  before 
they  are  wasted,  will  be  a  devastavit ;  and  a 
neglect  to  collect  a  doubtful  debt  which  by 
proper  exertion  might  have  been  collected 
will  be  so  considered.  Bacon,  Abr.  Execu- 
tors, L.     See  Matter  of  Childs,  5  Misc.  560, 

26  N.  Y.  Supp.  721;  Baer's  Appeal,  127  Pa. 
360,  18  Atl.  1,  4  L.  R.  A.  609;  Mills'  Adm'r 
v.  Talley's  Adm'r,  83  Va.  361,  5  S.  E.  368; 
Sterling  v.  Wilkinson,  83  Va.  791,  3  S.  E.  533 ; 
Adkins  v.  Hutchings,  79  Ga.  260,  4  S.  E.  887. 

The  law  requires  from  trustees  good  faith 
and  due  diligence,  the  want  of  which  is  pun- 
ished by  making  them  responsible  for  the 
losses  which  may  be  sustained  by  the  prop- 
erty intrusted  to  them :  when,  therefore,  a 
party  has  been  guilty  of  a  devastavit,  he 
is  required  to  make  up  the  loss  out  of  his 
own  estate.  See  Com.  Dig.  Administration, 
I;  Belt,  Suppl.  to  Ves.  209;  In  re  Strong's 
Estate,  160  Pa.  13,  28  Atl.  480;  Franklin  v. 
Low,  1  Johns.  (N.  Y.)  396;  Bacon,  Abr.  Ex- 
ecutors, L;  11  Toullier  58. 

The  return  of  nulla  bona  testatoris  nee 
propria  and  a  devastavit  to  the  writ  of  exe- 
cution de  bonis  testatoris,  in  an  action 
against  an  executor  or  administrator,  is 
called  a  devastavit.  Upon  this  return  the 
plaintiff  may  forthwith  sue  out  an  execution 
against  the  person  or  property  of  the  execu- 
tor or  administrator  in  as  full  a  manner  as 


in  an  action  against  him  sued  in  his  own 
right.  This  is  not,  however,  a  common  use  of 
the  word ;  Brown,  Diet. 

DEVENERUNT  (Lat.  devenire,  to  come 
to).  A  writ,  now  obsolete,  directed  to  tbe 
king's  escheators  when  any  one  of  the  king's 
tenants  in  capite  dies,  and  when  his  son  and 
heir  dies  within  age  and  in  the  king's  cus- 
tody, commanding  the  escheat,  or  that  by  the 
oaths  of  twelve  good  and  lawful  men  they 
shall  inquire  what  lands  or  tenements  by 
the  death  of  the  tenant  have  come  to  the 
king.  Dy.  360;  Keilw.  199  o;  Blount; 
Cowell. 

DEVEST  or  DIVEST.  To  deprive,  to 
take  away ;  opposite  to  invest,  which  is  to 
deliver  possession  of  anything  to  another. 
Wharton. 

DEVIATION.  Varying  from  the  risks  in- 
sured against,  as  described  in  the  policy, 
without  necessity  or  just  cause,  after  the 
risk  has  begun.     1  Phill.  Ins.  §  977. 

Any  unnecessary  or  unexcused  departure 
from  the  usual  or  general  mode  of  carrying 
on  the  voyage  insured.  15  Am.  L.  Rev.  108. 
See  also  Coffin  v.  Ins.  Co.,  9  Mass.  436. 

A  voluntary  departure  without  necessity  or 
reasonable  cause  from  the  regular  and  usual 
course  of  the  voyage  in  reference  to  the 
terms  of  a  policy  of  marine  insurance.  Hos- 
tetter  v.  Park,  137  U.  S.  30,  11  Sup.  Ct  1,  34 
L.  Ed.  568. 

The  mere  intention  to  deviate  is  not  a  de- 
viation, and  if  not  carried  into  effect  will 
not  vitiate  a  policy  or  exempt  insurers  from 
a  loss  happening  before  the  vessel  arrives 
at  the  dividing  port;  Marine  Ins.  Co.  v. 
Tucker,  3  Cra.  (U.  S.)  357,  2  L.  Ed.  466; 
Maryland  Ins.  Co.  v.  Woods,  6  Cra.  (U.  S.) 
29,  3  L.  Ed.  143.  Usage,  in  like  cases,  has  a 
great  weight  in  determining  the  manner  in 
which  the  risk  is  to  be  run, — the  contract 
being  understood  to  have  implied  reference 
thereto  in  the  absence  of  specific  stipulations 
to  the  contrary;  Folsom  v.  Ins.  Co.,  38  Me. 
414;  Winter  v.  Ins.  Co.,  30  Pa.  334 ;  Fletcher 
v.  Ins.  Co.,  18  Mo.  193;  De  Peyster  v.  Ins. 
Co.,  19  N.  Y.  272,  75  Am.  Dec.  331 ;  Hostetter 
v.  Gray,  11  Fed.  181 ;  Hostetter  v.  Park,  13T 
U.  S.  30,  11  Sup.  Ct.  1,  34  L.  Ed.  568.  To 
touch  and  stay  at  a  port  out  of  its  course  is 
not  a  deviation  if  such  departure  is  within 
the  usage  of  the  trade;  id;  Marande  v.  Ry. 
Co.,  184  U.  S.  173,  22  Sup.  Ct.  340,  46  L\  Ed. 
4S7.  A  variation  from  risks  described  in  the 
policy  from  a  necessity  which  is  not  inex- 
cusably incurred  does  not  forfeit  the  insur- 
ance; 1  Phill.  Ins.  §  1018 ;  as  to  seek  an 
intermediate  port  for  repairs  necessary  for 
the  prosecution  of  the  voyage ;  1  Phill.  Ins. 
§  1019;  changing  the  course  to  avoid  dis- 
aster; Haven  v.  Holland,  2  Mas.  234,  Fed. 
Cas.  No.  6,229 ;  delay  in  order  to  succor  the 
distressed  at  sea;  6  East  54;  Mason  v.  The 
Blaireau,  2  Cra.  (U.  S.)  240,  258,  2  L.  Ed. 
266;   if  the  object  is  to  save  life,  otherwise, 


DEVIATION 


861 


to  save  property  merely;  Crocker  v.  Jackson, 
1  Spra.  141,  Fed.  Cas.  No.  3,398;  Bond  v. 
The  Cora,  2  Wash.  C.  C.  80,  Fed.  Cas.  No. 
1,621;  The  Boston,  1  Sumn.  328,  Fed.  Cas. 
No.  1,673;  damage  merely  In  defence  against 
hostile  attacks;  1  PhilL  Ins.  g  1030;  or  In 
taking  measures  to  repel  such  attacks;  Ha- 
ven  v.    Holland,    2    Mas.    230,    Fed.    ('as.    No. 

6,229.  "Liberty  to  touch-*  at  a  pari 
port,  reserved  in  the  policy,  does  not  Imply 
liberty  to  remain  for  trading,  which,  if  it  in- 
volves delay,  may  amount  to  deviation; 
Maryland  ins.  Co.  v.  Le  Roy,  T  Cra.  (U.  S.) 
26,  3  L.  Ed  257;  nor  to  touch  and  stay  at  a 
port  out  of  the  course  when  within  the 
usage  of  the  trade;  Bulkley  v.  Ins.  Co.,  '-' 
Pai.  82,  Fed.  Cas.  No.  2,118;  Bentaloe  v. 
Pratt,  Wall.  C.  C.  58,  Fed.  Cas.  No.  1,330. 

Necessity  alone  will  sanction  a  deviation, 
and  the  latter  must  be  strictly  commensu- 
rate with  the  power  compelling;  Maryland 
Ins.  Co.  v.  Le  Roy,  7  Cra.  (U.  S.)  26,  ::  L.  Ed. 
257;  the  smallest  deviation  without  neces- 
sity discharges  the  underwriters,  though  the 
loss  be  not  the  immediate  consequence  of 
the  deviation;  Martin  v.  Ins.  Co.,  2  Wash.  C. 
C.  254,  Fed.  Cas.  No.  9,161.  The  same  doc- 
trine is  applicable  in  the  case  of  a  hill  of 
lading.  Shipowners  are  held  to  be  deprived 
of  the  exemptions  contained  therein,  even 
where  the  deviation  was  not  the  cause  of  the 
damage;   23  T.  L.  R.  89. 

See  article  in  15  Am.  L.  Rev.  108. 
The  effect  of  a  deviation  in  all  kinds  of 
Insurance  is  to  discharge  the  underwriters, 
whether  the  risk  is  thereby  enhanced  or 
not;  the  doctrine  applies  to  lake  and  river 
navigation  as  well  as  ocean;  1  PhilL  Ins.  § 
987.  See  Insurance;  Departure;  Hastes 
Act. 

In  the  law  of  railways,  a  lateral  alteration 
of  the  line  of  a  railway.  The  railways 
clauses  act  in  England  authorizes  a  company 
which  is  subject  to  its  provisions  to  deviate 
on  the  line  marked  on  the  deposited  plans 
within  the  limits  delineated  thereon.  Hodg. 
Railw.  341. 

In  Contracts.  A  change  made  in  the  prog- 
ress of  a  work  from  the  original  plan  agreed 
upon. 

When  the  contract  Is  to  build  a  house  ac- 
cording to  the  original  plan,  and  a  deviation 
takes  place,  the  contract  must  he  traced  as 
far  as  possible,  and  the  additions,  if  any 
have  been  made,  must  he  paid  for  accord- 
ing to  the  usual  rate  of  charging;  .".  B.  & 
Aid.  47.  And  see  14  Yes.  413;  McFerran  v. 
Taylor,  :;  Cra.  (U.  S.)  270,  2  L.  Ed.  436; 
Munroe  v.  Perkins,  9  Pick.  (Mass.)  29S,  20 
Am.  Dec.  475  ;    Chit.  Contr.  10S. 

DEVICE.  That  which  is  devised  or  form- 
ed by  design,  a  contrivance,  an  Invention. 
Henderson  v.  State,  59  Ala.  91;  Armour 
Packing  Co.  v.  U.  S.,  209  U.  S.  56,  28  Sup.  Ct 
42S,  52  L.  Ed.  681,  where  the  word  as  used 
in   the   Elkius   Act   was   construed   and   the 


above  definition  The  court  held  that 

the  act  sought  t"  reach  all  mean-  by  which 
unlawful    pi  or   re- 

ceived;   that   it  was   :  tentlon  of  Con- 

;.»  limit  the  obtaii  I 
to   fraudulent  I   that  the 

term  "device"  Includes  anything  which 

plan  or  contrivance. 

D  EVIL  LING.     A    I  n  of 

a  barrister  recently  admitted  i 

a  junior  barrister  In  his  pi 
work,  without  compensation  and  without  ap- 
pearing in  any  way  in  the  matter. 

DEVISAVIT  VEL  NON.  The  name  of  an 
"lit  of  a  court  of  chancery .  or 
Which  exercises  chancery  or  probate  jurisdic- 
tion, to  a  court  of  law,  to  try  the  validit 
a  paper  asserted  and  denied  to  he  a  will,  to 
in  whether  or  not  the  testator  did  de- 
vise, or  whether  or  not  that  paper  was  his 
will;  7  Bro.  P.  C.  437;  2  Atk.  424;  Asay  \. 
Hoover,  5  Pa.  21,  45  Am.  Dec.  713. 

An  application  for  an   issue  d< 
non   is   properly    denied    where   the   decided 
Weight   of  evidence  is    in   favor  of  the   I 
mentary    capacity   of    testatrix,    and    it    ap- 
pears that  the  two  sons  in  whose  favor  the 
will  was  made  cared  for  their  mother  and 
her  estate,  while  the  two  who  had  been  dis- 
inherited, attempted  to  have  her  declared  in- 
sane;  In  re  Pensyl's  Estate,  157  Pa.  4( 
Atl.  6G9. 

DEVISE.     A   gift   of   real   property   by   a 

last  will  and  testament. 

The  term  devise,  properly  and  technically,  applies 
only  to  real  estate;  1  Hill,  Abr.  c.  36.  62;  Dicker- 
man  v.  Abrahams,  21  Barb.  (N.  Y.)  561.  But  it  is 
also  sometimes  improperly  applied  to  a  bequest  or 
legacy.  See  4  Kent  4S9  ;  8  Viner,  Abr.  41 ;  Com. 
Dig.  Estates  by  Devise;  Rountree  v.  Pursell,  11  Ind. 
App.  522,  39  N.  E.  717.  The  terms  "bequest"  and 
"devise"  are  used  indifferently,  and  legatees  may 
take  under  a  devise  of  lands,  if  the  context  of  the 
will  shows  that  such  was  the  testator's  intention; 
Ladd  v.  Harvey,  21  N.  H.  615 ;  In  re  Fetrow'a  Es- 
tate,  58    Pa.    127. 

A  general  devise  of  lands  will  pass  a  re- 
version in  fee,  even  though  the  testator  has 
other  lands  which  will  satisfy  the  words  of 
the  devise,  and  although  it  he  highly  Im- 
probable that  he  had  in  mind  such  reversion; 
3  p.  Wins.  56;  3  Bro.  P.  C.  408;  4  Bro.  C.  O. 
338;  Steel  v.  Cook,  1  Mete.  (Mass  I  281;  8 
256. 

A  general  devise  will  pi  for  years, 

if    the    testator    have    no    other    real    i 

which  the  will  may  operate;  but  if 
he  have  both  lands  in  fee  and  lands  for 
years,  a  devise  of  all  his  lands  and  tenements 
will  commonly  pass  only  the  lands  In  fee- 
simple;  Cro.  Car.  •_".':::  Bowen  v.  Idley,  l  Ed 
ch.  (  N.  Y.  i  161;  <:  Sim.  '.''•».  But  if  B 
trary  Intention  appear  from  the  will,  it  will 
prevail;    5  Ves,  .'■  1" :    9  East  448. 

\e,    devised    and    bequeathed 
all  bis  furniture,  goods,  chattels  and  - 
whatsoever   the   same    may   be   and   wh 

situate."     It  was  held   that  giving  ex- 


DEVISE 


862 


DEVISEE 


pression  to  the  word  "devise,"  in  connection 
with  the  other  terms  of  the  will,  that  the 
gift  passed  all  the  property  of  the  testator, 
whether  real  or  personal;  US91]  3  Ch.  389. 
A  devise  in  a  will  can  never  be  regarded 
as  the  execution  of  a  power,  unless  that 
intention  is  manifest :  as,  where  the  will 
would  otherwise  have  nothing  upon  which 
it  could  operate.  But  the  devise  to  have  that 
operation  need  not  necessarily  refer  to  the 
power  in  express  terms.  But  where  there  is 
an  interest  upon  which  it  can  operate,  it  shall 
be  referred  to  that,  unless  some  other  inten- 
tion is  obvious;  G  Co.  176;  6  Madd.  190;  4 
Kent  334 ;    1  Jarin.  Wills  628. 

The  devise  of  all  one's  lands  will  not  gen- 
erally carry  tbe  interest  of  a  mortgagee,  in 
premises,  unless  that  intent  is  apparent :  2 
Vera.  621;  3  P.  Wins.  61;  1  Jarm.  Wills. 
<>J3.  The  fact  that  the  mortgagee  is  in  pos- 
session is  sometimes  of  importance  in  de- 
termining the  purpose  of  the  devise.  But 
many  cases  hold  tbat  the  interest  of  a  mort- 
gagee or  trustee  will  pass  by  a  general  de- 
vise of  all  one's  land,  unless  a  contrary  in- 
tent be  shown;  Jackson  v.  De  Lancy,  13 
Johns.  (N.  Y.)  537.  7  Am.  Dec.  403;  -8  Ves. 
407 :  1  J.  &  W.  494.  But  see  9  B.  &  C.  267. 
This  is  indeed  the  result  of  the  modern  de- 
cisions, 4  Kent  539;  1  Jarm.  Wills  638.  It 
seems  clear  that  a  devise  of  one's  mortgages 
will  pass  the  beneficial  title  of  the  mortga- 
gee;  4  Kent  539. 

Devises  may  be  contingent  or  vested,  after 
the  death  of  the  testator.  They  are  con- 
tingent when  the  vesting  of  any  estate  in 
the  devisee  is  made  to  depend  upon  some 
future  event,  in  wbich  case,  if  the  event 
never  occur,  or  until  it  does  occur,  no  estate 
vests  under  the  devise.  But  when  the  future 
event  is  referred  to  merely  to  determine 
the  time  at  which  the  devisee  shall  come 
into  the  use  of  the  estate,  this  does  not 
hinder  the  vesting  of  the  estate  at  the  death 
of  the  testator;  1  Jarm.  Wills,  c.  xxvi.,  and 
numerous  cases  cited.  The  law  favors  that 
construction  of  the  will  which  will  vest  the 
estate;  Olney  v.  Hull,  21  Pick.  (Mass.)  311; 
King  v.  King,  1  W.  &  S.  (Pa.)  205,  37  Am. 
Dec.  459.  But  this  construction  must  not  be 
carried  to  such  an  extent  as  to  defeat  the 
manifest  intent  of  the  testator;  Olney  v. 
Hull,  21  Pick.  (Mass.)  311;  Richardson  v. 
Wheatland,  7  Mete.  (Mass.)  171.  Where  the 
estate  is  given  absolutely,  but  only  the  time 
of  possession  is  deferred,  the  devisee  or  lega- 
tee acquires  a  transmissible  interest  although 
he  never  arrive  at  the  age  to  take  possession  ; 
1  Ves.  Sen.  44,  59,  118;  Bowers  v.  Porter,  4 
Pick.  (Mass.)  198 ;  Richardson  v.  Wheatland, 
7  Mete.  (Mass.)  .173.  See  -Lapsed  Devise; 
Will  ;    Legacy  ;    Charge. 

DEVISEE.  A  person  to  whom  a  devise 
has  been  made. 

All  persons  who  are  in  rerum  natura,  and 
even  embryos,  may  be  devisees,  unless  ex- 
cepted by  some  positive  law.     But  the  dev- 


isee must  be  in  existence,  except  in  case 
of  devises  to  charitable  uses ;  2  Washb.  R.  P. 
688;  Philadelphia  Baptist  Ass'n  v.  Hart,  4 
Wheat.  (U.  S.)  33,  49,  4  L.  Ed.  499.  See 
Charitable  Uses.  In  general,  he  who  can 
acquire  property  by  his  labor  and  industry 
may  receive  a  devise  ;  Cam.  &  N.  353.  Femes 
covert,  infants,  aliens,  and  persons  of  non- 
sane  memory  may  be  devisees;  4  Kent  506; 
2  Wms.  Ex.  269,  n. ;  Doe  v.  Roe,  1  Harr. 
(Del.)  524.  Corporations  in  England  and  in 
some  of  the  states  can  be  devisees  only  to  a 
limited  extent;    2  Washb.  R.  P.  6S7. 

A  devisee  may  mean  a  legatee;  People  v. 
Fetrie,  191  111.  497,  61  N.  E.  499,  85  Am.  St 
Rep.  268. 

DEVISOR.  A  testator.  One  who  devises 
real  estate. 

Any  person  who  can  sell  an  estate  may, 
in  general,  devise  "it ;  and  there  are  some 
disabilities  as  to  a  sale  which  are  not  such 
as  to  a  devise. 

DEVOIR.  Duty.  It  is  used  in  the  statute 
of  2  Ric.  II.  c.  3,  in  the  sense  of  duties  or 
customs. 

DEVOLUTION.  In  Ecclesiastical  Law. 
The  transfer,  by  forfeiture,  of  a  right  and 
power  which  a  person  has  to  another,  on 
account  of  some  act  or  negligence  of  the  per- 
son who  is  vested  with  such  right  or  power ; 
for  example,  when  a  person  has  the  right  of 
presentation  and  he  does  not  present  within 
.the  time  prescribed,  the  right  devolves  on 
his  next  immediate  superior.  Ayliffe.  Par- 
erg.  331.    See  3  App.  Cas.  520. 

DEVOLVE.  To  pass  from  a  person  dying 
to  a  person  living.  1  Mylne  &  K.  648.  See 
Delegation. 

Dl  COLON  A.  The  contract  which  takes 
place  between  the  owner  of  a  ship,  the  cap- 
tain, and  the  mariners,  who  agree  that  the 
voyage  shall  be  for  the  benefit  of  all.  The 
term  is  used  in  the  Italian  law.  Targa,  cc. 
36,  37;  Emerigon,  Mar.  Loans,  s.  5.  The  New 
England  whalers  owned  and  navigated  were 
under  this  species  of  contract  The  captain 
and  his  mariners  were  all  interested  in  the 
profits  of  the  voyage  in  certain  proportion,  in 
the  same  manner  as  the  captain  and  crew 
of  a  privateer,  according  to  the  agreement 
between  them.  Such  agreements  were  very 
common  in  former  times.  It  is  necessary  to 
know  this  in  order  to  understand  many  of 
the  provisions  of  the  laws  of  Oleron  and  of 
Wisliuy,  the  Consolato  del  Mare,  and  other 
ancient  codes  of  maritime  and  commercial 
law.     Hall,  Mar.  Loans  42. 

DICTATE.  To  pronounce,  word  by  word, 
what  is  meant  to  be  written  by  another.  It 
is  thus  defined  in  the  Louisiana  code,  which 
provides  that  the  testator  may  dictate  his 
will;  Hamilton  v.  Hamilton,  6  Mart  N.  S. 
(La.)  143.  The  presentation,  by  testator,  of 
an  instrument  which  he  has  caused  to  be 
written,  declaring  it  to  be  his  will,  may  some- 


DICTATE 


SG3 


DI< 


times  supply  the  want  of  dictation  ;  Prender- 
gast  v.  Prendergast,  16  La.  Ann.  219,  79  Am. 
Dec.  575. 

DICTATOR.  In  Roman  Law.  A  magis- 
trate at  Rome  Invested  with  absolute  power. 
His  office  continued  but  for  six  months. 
Hist,  de  la  Jur.  Dig.  I.  'J.  18,  1.  1.  1. 

DICTORES.    Arbitrators. 

DICTUM  (also,  Obiter  Dictum).  An  opin- 
ion expressed  by  a  court  upon  sumo  qu 

of  law  which  is  qoI  .   to  the  decision 

of  the  case  before  it. 

It  frequently  b  ippi  as  that.  In  assigning  Its  opin- 
ion upon  a  question  before  it,  the  court  discusses 
collateral  questions  and  expn  sses  a  d< 
upon  them.  Such  opinions,  however,  ari 
given  without  much  reflection  or  without  previous 
argument  at  the  bar  ;  and  as,  moreover,  they  do  not 
enter  into  the  adjudication  of  the  point  at  issue 
they  have  only  that  authority  which  may  be  ac- 
corded to  the  opinion,  more  or  less  deliberate,  of 
the  individual  judge  who  announces  it.  Ch;; 
Com.  30,  n.  It  may  be  observed  that  in  recent  times, 
particularly  in  those  jurisdictions  where  appeals 
are  largely  favored,  the  ancifnt  practice  of  courts 
in  this  respect  is  much  modified.  Formerly,  judges 
aimed  to  confine  their  opinion  to  the  precise  point 
involved,  and  were  glad  to  make  that  point  as  nar- 
row as  it  might  justly  be.  Where  appeals  are  fre- 
quent, however,  a  strong  tendency  may  be  seen  to 
fortify  the  judgment  given  with  every  principle  that 
can  be  invoked  in  its  behalf,— those  that  arf  • 
collateral,  as  well  as  those  that  are  necessarily  in- 
volved. In  some  courts  of  last  resort,  also,  when 
there  are  many  judges,  it  is  not  untrequently  the 
case  that,  while  the  court  come  to  one  and  the  same 
conclusion,  the  different  Judges  may  be  led  to  that 
conclusion  by  different  views  of  the  law,  so  that  it 
becomes  difficult  to  determine  what  is  to  be  regarded 
as  the  principle  upon  which  the  case  was  decided 
and  what  shall  be  deemed  mere  dicta. 

It  is  not  easy  to  define  the  term  with 
such  precision  as  to  afford  an  exact  crite- 
rion by  which  to  decide  when  the  language 
of  a  court  or  judge  is  entitled  to  be  con- 
sidered as  a  precedent  and  followed  as  an 
authority.  Judicial  references  to  the  sub- 
ject indicate  that  expressions  which  would 
be  included  under  the  term  dicta  are  never- 
theless afterwards  treated  by  other  courts 
with  respect  if  not  with  the  binding  force 
of  adjudicated  cases.  Possibly  no  better 
definition  can  he  found  than  that  of  Folger, 
J.,  in  Rohrbacb  v.  ins.  Co.,  62  N.  Y.  58,  20 
Am.  Rep.  -151  :  "Dicta  are  the  opinions  of  a 
judge  which  do  not  embody  the  resolution  or 
determination  of  the  court,  and.  made  with- 
out argument  or  full  consideration  of  the 
point,  are  not  the  professed,  deliberate  deter- 
minations of  the  judge  himself;  obiter  dicta 
are  such  opinions  uttered  by  the  way.  nol 
upon  the  point  or  question  pending,  as  if 
turning  aside  for  the  time  from  the  main 
topic  of  the  case  to  collateral  BubjectS." 

The  general  rule,  broadly  stated  by  the 
United  States  supreme  court,  is  that  to  make 
an  opinion  a  decision  "there  must  have  been 
an  application  of  the  judicial  mind  to  tjie 
precise  question  necessary  to  be  determined 
to  fix  the  rights  of  the  parties,  .  .  .  and. 
therefore,  this  court  has  never  held  Itself 
bound  by  any  part  of  an  opinion  which  was 


not  needful  to  the  ascertainment  of  the  ques- 
tion between  the  partie   "     Per  Curtis,  J.,  in 
Carroll   v.  Carroll,   16   Bow.  287,   14   p 
936.     And  in  Cohens   v.   Virginia,  when   the 
case  of  Marbury  v.  Madl  2  I.. 

Ed.  60,  was  very  ea  rne*  I  ly  1  a  the 

attention  of  the  court,   Marsha  !.  C 
"It    is   a    maxim    not  I    that 

general  expressions  In  every  opin 
be  taken  in  connection  with  the 

d.        i!"    t 

yond  the  case,   they   maj 
ought  not  to  conl  rol  th  ■  judg 
sequent  >ry  point  Is 

ed;"    6  Wheat  399,  5  L.  Ed.  257.     In  In  re 
nk,  :;  How.  292,  ill..!  tron, 

.]..  dissenting,  Btrongly  criticised  the  majority 
of  the  court  for  a  lom;  discussion  of  tb< 
er  of  a  court  as  to  which  they  decided  that 
they  had  do  authority  to  review  lt£    I 
In  a  later  ease  the  same  • 
ence  to  an  allusion  •  tnion  in  a 

previously  decide.],  •'This  was 
tion  before  the  court  and  the  decision  is  au- 
thority only  to  the  extent  of  t 
it;    ...     if    more   was    Intended    by    the 
judge  who  delivered  the  opinion  it  was  pure- 
ly obiter;"    V.  S.  v.  Com  !\  S, 
211,   -1    Li.    Ed.   628.     The  great  powers  and 
peculiar   functions   included   in   the 
tional    powers   of  that    court,   as   well   as    the 
conclusiveness  of  Its  judgments  as  declara- 
tions of  constitutional  construction,   m 
not  only  proper  but  essential  that  Its 
sions  should  be  confined  to  the  points 
sarily    involved   in   the   1                  embraced 
in  the  argument.     And  the  same  n 
only  warrant  but  require  a  rigid  exclusion  of 
mere  dicta  from  the 

The  reason  for  the  <  ent  of  the  rule. 

as  againsl  expressions  of  opinion  upon  points 
not  fairly  raised  by  the  case,  is  stated  by  the 
supreme  court  of  Pennsylvania  :  "What  I 
have  said  or  written  outside  of  the  case  try- 
ing, or  shall  say  or  write  in  BUCh  circum- 
may  be  taken  as  my  opinion  at  the 
time,  without  argument  or  full  consideration; 
but  I  will  not  consider  myself  hound  by 
it  when  the  point  is  fairly  trying  and  fully 
argued  and  considered."  Tor  Huston,  J., 
Fran ts  v.  Brown,  17  S.  £  K.  287. 

According  to  the  more  rigid  rule,  any 
expression  of  opinion  however  deliberate  up- 
on a  question  however  fully  argued,  if  I 

sential  to  the  disposition  that  was  mi 

the  case,  may  be  regarded  as  a  dictum;    but 

it  is,  on  the  other  hand,  said  that  it  is  dilli- 
cult  to  see   why,   in   a   philosophical   p 
view,    the    opinion    of    the    court    is    not    so 
persuasive  on   all   the   points   which   \v. 
Involved  in  the  cause  that  it  was  tin-  duty  of 

counsel  to  argue  them,  and  which  were  delib- 
erately passed  over  by  the  court,  as  if  the 
decision  had  bung  upon  but  one  point;  1 
Abbott,  X.  V.  Dig.  pref.  Iv.  And  a  text  writ- 
er has  Bald  that  "the  line  must  not  be  too 
sharply  drawn";  Wells,  Res,  Adj.  ^  Sta.  Dec. 


DICTUM 


864 


DICTUM 


|  581.  The  fact  that  a  decision  might  have 
been  rested  upon  a  different  ground,  and 
even  a  more  satisfactory  one,  does  not  place 
the  actual  decision,  on  a  ground  arising,  in 
the  category  of  a  dictum;  Clark  v.  Thomas, 
4  Heisk.    (Tenn.)  419. 

But  even   when  the  point  ruled  was  not 
directly  and  necessarily  in  issue,  there  are 
distinctions    drawn    as    to    the   relative    au- 
thority   of    judicial    expressions    of    opinion 
comprehended  under  the  general  term  dicta, 
as  used  in  its  broadest  sense.    An  expression 
of  opinion  upon  a  point  involved  in  a  case, 
argued   by   counsel   and  deliberately   passed 
upon  by  the  court,  though  not  essential  to 
the    disposition    of   the    case,    if    a    dictum, 
should   be   considered  as   a   judicial   dictum 
as  distinguished  from  a  mere  obiter  dictum, 
i.  e.  an  expression  originating  alone  with  the 
judge  writing  the  opinion,  as  an  argument  or 
illustration ;   Buchner  v.  By.  Co.,  GO  Wis.  264, 
19   N.   W.   56.      What  was,   in   strictness,   a 
dictum  of  Mr..  Justice  McLean  has  been  ex- 
tensively commented  on,  treated,  and  in  sev- 
eral cases  followed,   as  an   authority.     The 
suit  was  on  a  bond  of  a  United  States  offi- 
cer, and  the  question  was  as  to  when  a  res- 
ignation Fobk  effect,  it  being  claimed  that  for 
default  after  resignation  the  surety  was  not 
liable.     The  court  held  the  resignation  to  be 
a  conditional  one,  and  went  on  to  discuss  the 
right  of  resignation  and  the  necessity  of  ac- 
ceptance or  power  of  rejection,  reaching  the 
conclusion  that  an  unqualified  resignation  re- 
quired no  acceptance  and   would  have  dis- 
charged the  surety;    U.  S.  v.  Wright,  1  Mc- 
Lean, 509,  Fed.  Cas.  No.  16,775.     This  case 
having  been  cited  to  that  point  it  was  con- 
tended that  it  was  a  mere  dictum.    After  de- 
fining dictum  the  supreme  court  of  Nevada 
held  "that  wbile  technically  such,  it  was  not 
liable  to  the  objections  usually  urged, — it  was 
the  expression  of  opinion  on  a  point  argued, 
and  entitled  to  far  more  weight  than  an  or- 
dinary dictum  on  a  point  not  discussed  and 
remotely  connected  with  the  case."     State  v. 
Clarke,  3  Nev.  5GG.     The  same  case  was  fol- 
lowed in  People  v.  Porter,  6  Cal.  28;    State 
v.  Fitts,  49  Ala.  402;    and  is  commented  on 
and  treated  as  an  authority  without  being 
characterized  as  a  dictum  in  Edwards  v.  U. 
S.,  103  U.  S.  471,  26  L.  Ed.  314  and  Beeves  v. 
Ferguson,  31  N.  J.  L.  107. 

So  also  it  has  been  held,  with  respect  to 
a  court  of  last  resort,  that  all  that  is  needed 
to  render  its  decision  authoritative  is  that 
there  was  an  application  of  the  judicial  mind 
to  the  precise  question  adjudged;  and  that 
the  point  was  investigated  with  care  and 
considered  in  its  fullest  extent;  Alexander 
v.  Worthington,  5  Md.  4SS ;  and  that  when  a 
question  of  general  interest  is  involved,  and 
is  fully  discussed  and  submitted  by  counsel, 
and  the  court  decides  the  question  with  a 
view  to  settle  the  law,  the  decision  cannot  be 
considered  a  dictum;    id. 

When  a  question  is  involved  in  the  case, 


though  not  in  the  particular  phase  of  it,  at 
the  time  before  the  court,  the  language  of 
the  court  is  not  a  mere  dictum.  When  a 
will  was  offered  for  probate  the  question 
of  its  validity,  so  far  as  regarded  charitable 
uses,  was  involved,  and  what  was  said  as  to 
that  was  not  obiter;  Jones  v.  Habersham, 
107  U.  S.  174,  2  Sup.  Ct.  336,  27  L.  Ed.  401; 
although  a  point  may  not  have  been  exhaus- 
tively argued  a  decision  upon  it  cannot  be 
said  to  be  obiter  dictum  when  it  was  upon  a 
question  raised  by  a  demurrer  upon  which 
the  court  distinctly  expressed  an  opinion ; 
Michael  v.  Morey,  26  Md.  239,  90  Am.  Dec. 
106. 

"Whenever  a  question  fairly  arises  in  the 
course  of  a  trial,  and  there  is  a  distinct  de- 
cision  of   that   question,   the    ruling   of   the 
court  in  respect  thereto  can,  in  no  just  sense, 
be  called  mere  dictum."    Union  Pac.  B.  Co.  v. 
Bailroad  Co.,  199  U.  S.  160,  166,  26  Sup.  Ct. 
19,  50  L.  Ed.  134 ;   Florida  C.  B.  Co.  v.  Schut- 
te,  103  U.  S.  118,  26  L.  Ed.  327;    New  York 
Cent.  &  H.  B.  B.  Co.  v.  Price,  159  Fed.  330, 
332.  86  a  C.  A.  502,  16  L.  B.  A.  (N.  S.)  1103. 
The    expressions    of    courts    and    judges 
which  fall  within  the  general  designation  of 
dicta  are  accorded  more  or  less  weight  as 
they  agree  with,  or  run  counter  to,  the  cur- 
rent of  authority,  and,  like  the  adjudications 
of  courts  in  other  jurisdictions,   not  direct 
authorities,  they  are  always  considered  with 
reference  to  the  judicial  reputation  and  ex- 
perience of  their   authors.     Beferring  to   a 
case  cited  in  a  dictum  Lord  Mansfield  said, 
"This   dictum  of  Lord  Holt's  is  no  formed 
decisive    resolution;     no    adjudication;     no 
professed       or       deliberate       determination 
.     .     . " ;    then  after  citing  cases  contra  he 
continued,  "therefore  this  mere  obiter  dictum 
ought  not  to  weigh  against  the  settled  direct 
authority  of  the  cases  which  have  been  delib- 
erately and  upon  argument  determined  the 
other  way."    2  Burr.  2004.    "Dicta  of  judges 
upon  matters  not  argued  or  directly  before 
them,  have  had  more  importance  attached  to 
them  than,  in  my  opinion,  they  ought  to  have 
had ;   but  such  expressions,  falling  from  such 
a  man  as  Lord  Hardwicke,  may  be  safely  re- 
lied upon  to  show  that,  at  that  time,  the  idea 
of  a  larger  legacy  being  adeemed  by  a  small- 
er portion  was  not  familiar  to  his  mind.     It 
is  the  more  important  to  keep  this  dictum  of 
Lord    Hardwicke   in    mind    because   another 
dictum  of  that  very   eminent  judge    .     . 
is  relied   upon   in   support  of  the  supposed 
rule."     Ld.   Ch.   Cottenham,  in  1   Buss.   27. 
The   doctrine   of   the    courts    of   France   on 
this  subject  is  stated  in  11  Toullier  177,  n. 
133. 

See  Precedent. 

In  French  Law.  The  report  of  a  judgment 
made  by  one  of  the  judges  who  has  given  it 
Pothier,  Proc.  Civ.  pi.  1,  c.  5,  art.  2. 

DIEM  CLAUSIT  EXTREMUM  (Lat.  he 
has    closed    his    last    day,— died).     A    writ 


DIEM  CLAUSIT  EXTREMUM 


8G5 


DIES  NON 


which  formerly  lay  on  the  death  of  a  tenant 
in  capite,  to  ascertain  the  lands  of  which  he 
died  seised,  and  reclaim  them  into  the  king's 
hands.  It  was  directed  to  the  kings  es- 
cheators.  Fitzh.  N.  B.  251,  K ;  2  Reeve,  Hist 
Eng.  Law  327. 

A  writ  of  the  same  name,  issuing  out  of 
the  exchequer  after  the  death  of  a  debtor  of 
the  king,  to  levy  the  debt  of  the  lands  or 
goods  of  the  heir,  executor,  or  administra- 
tor. Tenncs  de  la  L< .".  This  writ  La  still  in 
force  in  England.    3  Steph.  Com.  667. 

DIES  (Lafc).  a  day;  days.  Days  for  ap- 
pearance in  court  Provisions  or  mainte- 
nance for  a  day.  The  king's  rents  were  an- 
ciently reserved  by  so  many  days'  provisions. 
Spelnian,  Gloss. ;  Co  well;  Blount 

DIES  AM  OR  IS  (Lat).  A  day  of  favor. 
If  obtained  after  a  default  by  the  defendant, 
it  amounted  to  a  waiver  of  the  default 
I.itt.  L35  a;  2  Reeve.  Hist.  Eng.  Law  60. 
The  appearance  day  of  the  term,  or  quarto 
die  post,  was  also  su  called. 

DIES  COMMUNES  IN  BANCO  (Lat). 
Regular  days  lor  appearance  in  court  ;  call- 
ed, also,  common  return-days.  2  Reeve,  Hist. 
Eng.  Law  57. 

DIES  DATUS  (Lat.  a  day  given).  A  day 
or  time  given  to  a  defendant  in  a  suit,  which 
is  in  fact  a  continuance  of  the  cause.  It  is 
so  called  when  given  before  a  declaration. 
When  it  is  allowed  afterwards,  it  assumes 
the  name  of  imparlance,  which  see. 

Dies  datus  in  banco,  a  day  in  bank.  Co. 
Litt.  135.  Dies  datus  partibus,  a  continu- 
ance; dies  datus  prcce  partium,  a  day  given 
on  prayer  of  the  parties. 

DIES  DOMINICUS.  The  Lord's  day;  Sun- 
day. 

DIES  FASTI  (Lat.  I.  In  Roman  Law. 
Days  on  which  courts  might  be  held  and 
judicial  and  other  business  legally  transact- 
ed. Calvinus.  Lex. ;  Anthon,  Rom.  Ant  3 
Bla.  Com.  275,  424. 

DIES  GRATI/E  (Lat).  In  Old  English 
Law.     Days  of  grace.    Co.  Litt.  134  6. 

DIES    NE  FASTI    (Lat).     In    Roman    Law. 

Days  on  which  it  was  unlawful  to  transact 
judicial  affairs,  and  on  which  the  courts 
were  closed.  Anthon,  Rom.  Ant.;  1  Kaufm. 
Mackeld.  24;    3  Bla.   Com.  27r>. 

DIES  NON  (Lat).  An  abbreviation  of  the 
phrase  dies  non  jwridiOUS,  universally  used 
to  denote  non  judicial  days.  Hays  during 
which  courts  do  not  transact  any  busirn 
as,  Sunday,  or  the  legal  holidays.  :;  Chitty, 
Gen.  Pr.  104;  W.  Jones  156.  Sunday  was 
the  original  dies  non,  but  in  many  slates 
days  declared  by  statute  to  be  legal  holidays 
are  also  such,  but  the  decisions  on  this  sub- 
ject depend  hugely  upon  the  terms  and  scope 
of  the  statutes,  many  of  which  apply  solely 
to  the  presentment  and  payment  of  commer- 
Bouv.— 55 


cial  paper,  and  others  include  a  prohibition 
of  judicial  business  and  provide  for  the  clos- 
ing of  publie  offices. 

A  distinction  was  made  in  9  Co.  GG  between 
judicial  and  ministerial  acts  performed  on  a 
dies  non;  this  was  overruled  in  1  Stra.  387; 
but  the  distinction  now  obtains;  5  ('•  ::t.  L 
J.  2G.  And  under  a  statute  forbiddl 
transaction  of  any  judicial  busin  on- 

day  or  a  legal  holiday,  the  I  ha 

day  of  an  attachment  by  a  county  judg 
a  claim  not  due   was  held  to  be   "Judl 

bb  and  void;  Merchants'  Nat.  Bank  of 
o„,aha  v.  Jaffray,  86  Neb.  218,  64  N.  W.  2S 
19  1..  EL  A.  816;  but  an  attachment  for  a 
Claim  past.  due. was  held  to  be  valid,  as  a  niin 
rial,  and  not  a  judicial  act;  Whipple  v. 
Hill,  36  Neb.  7-n.  r,:,  N.  W.  227,  20  L  EL  A. 
313,  38  Am.  St.   Rep.   712. 

It  has  usually  been  held  that  a  verdict  may 
be  received  on  a  dies  non;  Huidekoper  v. 
Cotton,  3  Watts  (Pa.)  56;  McCorkle  v.  State, 
11  Ind.  39;  Powers  v.  State,  23  Tex.  App. 
i  s.  w.  153;  Brown  v.  Stab  .  32  Tex  «'r. 
R.  119,  22  S.  W.  596;  but  a  judgment  entered 
on  such  verdict  on  the  same  day  is  void; 
Baxter  v.  People,  3  Gilman  (111)  368;  Hogh- 
taling  v.  o.^burn,  15  Johns.  (X.  v.i  119.  See 
Webber  v.  Merrill,  :;i  N.  EL  -»>-  :  Johnson  v. 
Day,  17  Pick.  (Mass.)  106;  State  v.  Ri< 
74  N.  C.  187;  Elrod  v.  Lumber  O  .  92  Tenn. 
476,  22  S.  W.  2;  Men  bants"  Nat.  Bank 
of  Omaha  v.  Jaffray.  36  Neb.  218,  54  N. 
W.  258,  19  L.  R.  A.  316.  A  judgment  by 
confession  entered  upon  December  25,  a  le- 
gal holiday,  is  not  void;  Bradley  v.  Clau- 
don,  45  in.  App.  326.  In  Kentucky  although 
Thanksgiving  day  is  a  legal  holiday,  it  is 
not  treated  as  Sunday,  except  as  to  com- 
mercial paper,  and  where  mom  -  due 
b  a  day,  the  debtor  is  in  default  if  be 
fails  to  pay  on  that  day;  National  Mut. 
Ben.  Ass'n  v.  Miller,  85  Ky.  B8,  _  S.  w.  900. 
A  bill  of  exceptions  signed  on  Sunday  is 
void:  Roberts  v.  Bank,  137  Ind.  697,  •■:''•  N. 
B.  1091.  Warrants  for  treason,  felony,  and 
breach  of  the  peace  may  be  executed  on  Sun- 
day: Slate  v.  RickettS,  71  N.  C.  187.  Where 
public  policy  or  the  prevention  of  Irremedia- 
ble wrong  requires  it,  the  Courts  may 
Sunday  and  Issue  process ;  Langabier  v.  Fair- 
bury,  i".  &  N.  W.  EL  EL  Co.,  64  [11.243, 
Rep.  550.  It  is  no  longer  uncommon  for 
courts  to  <it  on  legal  holidays  in  some  juris- 
dictions. See  a  full  article  on  this  title  in 
..  n.  s.  697;  Si'nkay  ;  Holidays. 

DIES   NON   JURIDICUS  (Lat).     Non-judi- 
cial  das-.      See    l'li  S    NOR. 

DIES    PACIS    (bat.    day      f  The 

year   was  formerly  divided  into   the  dfl 

the  pea.  e  of  the  church  and  tin-  -lays  of  the 

,,f  the  king,— including  in  the  two  divi- 

all  the  days  of  the  year.     Crabb,  Hist 

Eng.    1-aw   35. 

DIES  A   QUO    (Lat).     In  Civil    Law.     The 


DIES  A  QUO 


8G6 


DIGNITIES 


day  from  which  a  transaction  begins.  Cal- 
viuus,  Lex. ;  1  Kaufni.  Mackeld.  Civ.  Law 
168. 

DIES  UTILES  (Lat).  Useful  or  available 
days.  Days  in  which  an  heir  might  apply  to 
the  judge  for  an  inheritance.  Cooper,  Inst; 
Calvinus,  Lex. ;   Du  Cange. 

DIET.  A  general  assembly  is  sometimes 
so  called  on  the  continent  of  Europe.  1  Bla. 
Com.  147. 

DIETA  (Lat.).  A  day's  journey;  a  day's 
work  ;  a  day's  expenses.  A  reasonable  day's 
journey  is  said  to  be  twenty  miles,  by  an 
old  computation.  Cowell ;  Spelman,  Gloss. ; 
Bracton  235  b;   3  Bla.  Com.  218. 

DIFFERENCE.  A  contention  over  a  ques- 
tion of  truth,  or  fact,  or  law,  as  distinguished 
from  a  non-agreement  over  a  question  of 
valuation.    2S  L.  J.  Ch.  184. 

DIGEST.     A  compilation  arranged  in  an 
orderly  manner. 
The  name  is  given  to  a  great  variety   of  topical 

compilations,  abridgments,  and  analytical  indices 
of  reports,  statutes,  etc.  When  reference  is  made 
to  the  Digest,  the  Pandects  of  Justinian  are  intend- 
ed, they  being  the  authoritative  compilation  of  the 
civil  law.  As  to  this  Digest  and  the  mode  of  citing 
it,  see  Pandects.  Other  digests  are  referred  to  by 
their  distinctive  names.  For  some  account  of  di- 
gests of  the  civil  and  canon  law,  and  those  of  In- 
dian law,  see  Civil  Law,  Code,  and  Canon  Law. 

The  digests  of  English  and  American  law  are  for 
the  most  part  deemed  not  authorities,  but  simply 
manuals  of  reference,  by  which  the  reader  may  find 
his  way  to  the  original  cases  which  are  authorities. 
1  Burr.  364  ;  2  Wils.  1,  2.  Some  of  them,  however, 
which  have  been  the  careful  work  of  scholarly  law- 
yers, possess  an  independent  value  as  original  re- 
positories of  the  law.  Bacon's  Abridgment,  which 
has  long  been  deservedly  popular  in  this  country, 
and  Comyns's  Digest,  also  often  cited,  are  examples 
of  these.  The  earlier  English  digests  are  those  of 
Statham  (Hen.  VI.),  Fitzherbert,  1516,  Brooke,  1573, 
Rolle,  Danvers,  Nelson,  Viner,  and  Petersdorf.  Of 
these  Rolle  and  Viner  are  still  not  infrequently 
cited,  and  some  others  rarely.  The  several  digests 
by  Coventry  &  Hughes,  Harrison,  Fisher,  Jacobs, 
and  Chitty,  together  with  the  subsequent  annual 
digests  of  Emden  and  of  Mews,  afford  a  convenient 
index  for  the  American  reader  to  the  English  re- 
ports. In  most  of  the  United  States  one  or  more 
•  digests  of  the  state  reports  have  been  published,  and 
in  some  of  them  digests  or  topical  arrangements  of 
the  statutes.  There  are  also  digests  of  the  federal 
statutes.  'The  American  Digest,  Century  Edition, 
covers  the  reports  of  the  federal  and  state  courts 
from  1658  to  1896,  inclusive,  brought  down  to  cover 
1906  by  the  Decennial  Edition,  and  brought  down  to 
date  by  the  American  Digest,  Key-Number  Series. 
The  Federal  Reporter  Digest  digests  the  series  of 
Federal  Reporters  to  vol.  200  and  the  United  States 
Supreme  Court  decisions  from  vols.  106  to  225  U.  S., 
comprised  in  vols.  21-32  Supreme  Court  Reporter. 
The  latter,  to  225  U.  S.,  are  also  digested  in  the 
Digest  of  United  States  Supreme  Court  Reports. 
Dane's  Abridgment  of  American  Law  has  been  com- 
mended by  high  authority  (Story's  article  in  N. 
Am.  Rev.  July,  1826),  but  it  has  not  maintained  a 
position  as  a  work  of  general  use.  There  are  also 
numerous  digests  of  cases  on  particular  titles  of  the 
law. 

DIGNITARY.  An  ecclesiastic  who  holds  a 
dignity  or  benefice  which  gives  him  some 
pre-eminence  over  mere  priests  and  canons, 
such  as  a  bishop,  archbishop,  prebendary, 
etc.     Burn,  Law  Diet. 


DIGNITIES.  In  English  Law.  Titles  of 
honor. 

They  are  considered  as  incorporeal  here- 
ditaments. The  character  of  our  government 
forbids  their  admission  into  the  republic. 

D  I  LAC  I  ON.      In    Spanish    Law.      The   time 

granted  by  law. or  by  the  judge  to  parties 
litigant  for  the  purpose  of  answering  a  de- 
mand or  proving  some  disputed  fact. 

DILAPIDATION.  A  species  of  ecclesiasti- 
cal waste  which  occurs  whenever  the  incum- 
bent' suffers  any  edifices  of  his  ecclesiastical 
living  to  go  to  ruin  or  decay.  It  is  either 
voluntary,  by  pulling  down  or  permissive,  by 
suffering  the  church,  parsonage-houses,  and 
other  buildings  thereunto  belonging,  to  de- 
cay. And  the  remedy  for  either  lies  either  in 
the  spiritual  court,  where  the  canon  law  pre- 
vails, or  in  the  courts  of  common  law.  It  is 
also  held  to  be  good  cause  of  deprivation  if 
the  bishop,  parson,  or  other  ecclesiastical  per- 
son dilapidates  buildings  or  cuts  down  timber 
growing  on  the  patrimony  of  the  church,  un- 
less for  necessary  repairs ;  and  that  a  writ 
of  prohibition  will  also  lie  against  him  in  the 
common-law  courts.    3  Bla.  Com.  91. 

DILATORY  DEFENCE.  In  Chancery 
Practice.  One  the  object  of  which  is  to  dis- 
miss, suspend,  or  obstruct  the  suit,  without 
touching  the  merits,  until  the  impediment  or 
obstacle  insisted  on  shall  be  removed. 

DILATORY  PLEA.  One  which  goes  to  de- 
feat the  particular  action  brought,  merely, 
and  which  does  not  answer  as  to  the  general 
right  of  the  plaintiff.    See  Plea. 

DILIGENCE.  The  degree  of  care  and  at- 
tention which  the  law  exacts  from  a  person 
in  a  particular  situation  or  a  given  relation' 
to  another  person.  The  word  finds  its  most 
frequent  application  in  the  law  of  Bailments 
and  of  Negligence.  Indeed  it  may  be  termed 
the  correlative  of  negligence. 

DIME  (Lat.  decent,  ten).  A  silver  coin  of 
the  United  States,  of  the  value  of  ten  cents, 
or  one-tenth  of  the  dollar. 

DIMINUTION  OF  THE  RECORD.  Incom- 
pleteness of  the  record  of  a  case  sent  up  from 
an  inferior  to  a  superior  court. 

When  this  exists,  the  parties  may  suggest 
a  diminution  of  the  record,  and  pray  a  writ 
of  certiorari  to  the  court  below  to  certify 
the  whole  record;  Bassler  v.  Niesly,  1  S.  & 
R.  (Pa.)  472;  Co.  Entr.  232;  8  Viner,  Abr. 
552;  Cro.  Jac.  597;  Cro.  Car.  91;  Den  v. 
Carr.  15  N.  C.  575;  State  v.  Reid,  18  N.  C. 
382,  28  Am.  Dec.  572;  Hooper  v.  Royster,  1 
Munf.  (Va.)  119.  See  Alleging  Diminution  ; 
Cektioraei. 

DINING  CARS.  While  in  the  act  of  mak- 
ing its  interstate  journey,  such  car  is  under 
the  control  of  congress,  and  equally  it  is  so 
when  waiting  for  the  train  to  be  made  up  for 
the  next  trip ;  Johnson  v.  Southern  Pac.  Co., 
196  U.  S.  1,  25  Sup.  Ct  158,  49  L.  Ed.  363. 


DIXINf!   CARS 


8G7 


DIl'Lu.MAi  [C  AGENTS 


See  Interstate  Commerce  Commission;  Com- 
mon Cabbiee;  Masteb  and  Servant;  Em- 
ployer's Liability. 

DIOCESE.  The  territorial  extent  of  a 
bishop's  jurisdiction.  The  circuit  of  every 
bishop's  jurisdiction.  Co.  Litt.  94 ;  1  Bla. 
Com.  Ill;    2  Burn,  Eccl.  Law  L58. 

Dioceses  were  divided  into  archdioceses 
and  those  Into  rural  deaneries,  which  were 
divided  into  parishes. 

DIOCESAN  COURTS.  See  Consistory 
Courts;    Church    of   England. 

DIONYSIUS.  The  Collectio  Dionysiana 
was  a  collection  and  translation  of  the  can- 
ons of  Eastern  councils  by  a  monk  named 
Dionysius  Exiguus,  living  in  Rome,  but  Scy- 
thian by  birth,  about  .".no  A.  D.  It  helped  to 
spread  the  notion  that  the  popes  can  de- 
clare, even  if  they  cannot  make  the  law  for 
the  universal  church,  and  thus  to  contract 
the  sphere  of  secular  jurisprudence.  1-4  L 
Q.  It.  20. 

DIPLOMA.  An  instrument  of  writing,  exe- 
cuted by  a  corporation  or  society,  certifying 
that  a  certain  person  therein  named  is  enti- 
tled to  a  certain  distinction  therein  mention- 
ed. It  is  usually  granted  by  learned  institu- 
tions to  their  members  or  to  persons  who 
have  studied  in  them. 

Proof  of  the  seal  of  a  medical  institution 
and  of  the  signatures  of  its  officers  thereto 
affixed,  by  comparison  with  the  seal  and  sig- 
natures attached  to  a  diploma  received  by 
the  witness  from  the  same  institution,  has 
been  held  to  be  competent  evidence  of  the 
genuineness  of  the  instrument,  although  the 
witness  never  saw  the  officers  write  their 
names;  Finch  v.  Gridley'S  Kx'rs,  25  Wend. 
(X.  Y.)  4(1'.). 

A  diploma  is  evidence  that  a  physician  re- 
ceived a  degree  from  a  medical  institution; 
Holmes  v.  Balde,  Ti  Me.  28,  43  Am.  Hep. 
567. 

This  word,  which  Is  also  written  duploma,  in  the 
civil  law  signifies  letters  Issued  by  a  prince.  They 
are  so  called  it  is  supposed,  a  duplicatia  tabt  His,  to 
which  Ovid  is  thought  to  allude,  1  Amor,  12,  '-'.  "~, 
when  he  says,  Tunc  ego  vos  duplices  rebus  pro  no- 
mine sensi.  Sueton.  in  Augustum,  c.  C6.  Hmsonius 
p.  367.  Seals  also  were  called  Diplomata.  Vlcat, 
Diploma.    Sec  College. 

DIPLOMACY.  The  science  which  deals 
with  the  means  and  methods  by  which  the 
intercourse  between  states  is  carried  on.  See 
Diplomatic  Agents. 

DIPLOMATIC     AGENTS.      Public    i 
who  have   been  commissioned   according   to 
law  to  superintend  ami  transact  the  affairs 

of  the  government  which  has  employed  them, 
in  a  foreign  country.     Yattel.  liv.  4,  c.  5. 

The  agents  were  formerly  regarded  as  di- 
vided into  two  general  classes  or  orders. 
Those  of  the  first  order  were  almost  the  per- 
fect representatives  of  the  government  by 
which   they   were   commissioned:    such   were 


legates,   nuncios,   internuncios,   ambassadors, 
rs,    plenipotentiarh    ,  I    the 

second  order  (lid  oot  bo  fully  i  their 

government:      the  .-'iiLs, 

ministers,    charges    d'affaires,    am: 
The  classification  of  .  now  so 

far  sanctioned  as  t<>  !  I  a  rule  of 

international    law,    was   agreed    opon    at    the 
Congress  of  Vienna  in  i^ir>  and  m 
that  of  Aix-la-Ohapelle  in  1818.  this 

classification  diplomatic  i  ak  as  fol- 

lows:   (1)  Ambassadors,  ordinary  unci  ■ 
ordinary,  legates,  and  nund  «;   (2) 
ministers,  or  others  a  credited  t.>  - 
(3)   ministers   resident,   accredited   t>. 
eigns;  (4)  charges  d'affaires,  and  other  d 

math:  agents  accredited    to   ministers  <■: 
eign    affairs    (whether   bearing   the   title  of 
minister  or    noli,   ami    consuls  charged   with 
diplomatic  duties.     See  the  several  titles  and 
I  'avis,  Int.  Law  ch.  vii. 

DIPLOMATICS.    The  art  of  judging  of  an- 
ers,  public  documents,  or  diplo 
and  discriminating  the  true  from  the  false 
Eneyc.  Lond. 

DIPSOMANIA.  In  Medical  Jurisprudence. 
A  mental  disease  characterized  by  an  uncon- 
trollable desire  for  Intoxicating  drinks.  An 
irresistible  impulse  to  indulge  in  into  Lication, 
either  by  alcohol  or  other  drugs.  Ballard  v. 
State,  l'J  Neb.  614,  28  X.  NY.  -71.  As  to  how 
far  the  law  will  hold  a  party  ••  for 

acts  committed  while  the  mind  is  overwhelm- 
ed by  the  effects  of  liquor 

DIRECT.     Straightforward;  not  collateral. 
The   Onrust,   6   Blatchf.    533,    lei 
10,540.     The  direct  line  of  descent  is  formed 
by  a  series  of  relation-hips  between  persons 
who  descend  successively  one  from  the  other. 

Evidence  is  termed  direct  which  applies  im- 
mediately to  the  fact  to  be  proved,  without 
any  intervening  process  as  distinguished 
from  circumstantial,  which  applies  imme- 
diately to  collateral  facta  supposed  to  have 
a  connection,  near  or  remote,  with  the  tact 
in  controversy. 

The  examination  in  chief  of  a  wit: 
called  the  direct  examination. 

DIRECT   TAX.      In    Pollock    v. 

157    l'.    S.   429,    15    Sup.    Ct    I 
759,  it  was  said  that  in  order  to  determine 
whether  a   tax   be  direct  within  the   mean- 
ing   of  Stitution    it    must    be    i 
tained    whether    the    one    upon    whom,    by 

he  burden  of  paying  it  is  flrsl 
can  thereafter  shift  it  to  another  ; 
If  lie  cannot,  the  tax  would  then  be  direct, 
and  bence,  bowever  obvious  in  other  re- 
it  might  be  a  duty,  impost  or  ex- 
Cise,  it  cannot  be  levied  by  the  rule  of  uni- 
formity and  must  be  apportioned.  This  was 
said  in  Knowlton  v.  Moore,  178  I*.  S.    II.  20 

;.  7  17.  ll  I..  Ed.  969,  to  be  a  disputable 
theory.  It  is  said  direct  taxes  within  the 
constitution  are  only  capitation  taxes,  as  ex- 


DIRECT  TAX 


868 


DIRECTORS 


pressed  in  that  instrument,  and  taxes  on  real 
estate ;  Springer  v.  U.  S.,  102  U.  S.  586,  26  L. 
Ed.  253 ;  but  the  inclusion  of  rentals  from  real 
estate  was  held  to  make  it  direct  to  that  ex- 
tent; Pollock  v.  Trust  Co.,  157  U.  S.  429,  15 
Sup.  Ct.  673,  39  L.  Ed.  759,  where  it  is  said, 
although  there  have  been  from  time  to  time 
intimations  that  there  might  be  some  tax 
which  was  not  a  direct  tax  nor  included  un- 
der the  words  duties,  imposts  and  excises, 
such  a  tax  for  more  than  a  hundred  years 
has  as  yet  remained  undiscovered. 

Direct  taxes  include  those  assessed  upon 
property,  person,  business,  income,  etc.,  of 
those  who  pay  them;  while  indirect  taxes 
are  levied  upon  commodities  before  they 
reach  the  consumer,  and  are  paid  by  those 
upon  whom  they  ultimately  fall,  not  as  taxes, 
but  as  part  of  the  market  price  of  the  com- 
modity. Under  the  second  head  may  be 
classed  the  duties  upon  imports,  and  the  ex- 
cise and  stamp  duties  levied  upon  manu- 
factures; Cooley,  Taxation  10. 

See  Tax;  Excise. 

DIRECTING  A  VERDICT.  See  Verdict; 
Jury. 

DIRECTION.  The  order  and  government 
of  an  institution;  the  persons  who  compose 
the  board  of  directors  are  jointly  called  the 
direction. 

Direction,  in  another  sense,  is  nearly  syn- 
qnymous  with  instruction    (g.  v.). 

In  Practice.  The  instruction  of  a  jury  by  a 
judge  on  a  point  of  law,  so  that  they  may 
apply  it  to  the  facts  before  them.  See 
Charge. 

That  part  of  a  bill  in  chancery  which  con- 
tains the  address  of  the  bill  to  the  court: 
this  must,  of  course,  contain  the  appropriate 
and  technical  description  of  the  court.  See 
Bill. 

DIRECTOR  OF  THE  MINT.  An  officer 
appointed  by  the  president  of  the  United 
States,  by  and  with  the  advice  and  consent 
of  the  senate.  He  is  the  chief  officer  of  the 
bureau  of  the  mint  and  is  under  the  general 
direction  of  the  secretary  of  the  treasury. 
R.  S.  §  343. 

DIRECTORS.  Persons  appointed  or  elect- 
ed according  to  law  to  manage  and  direct  the 
affairs  of  a  corporation  or  company.  The  di- 
rectors collectively  form  the  board  of  di- 
rectors. 

They  are  generally  invested  with  certain 
powers  by  the  charter  of  the  corporation,  and 
it  is  believed  that  there  is  no  instance  of  a 
corporation  created  by  statute  without  pro- 
vision for  such  a  board  of  control,  whether  un- 
der the  name  of  directors,  or,  as  they  are 
sometimes  termed,  managers  or  trustees, — 
the  latter  designation  being  more  frequent 
In  religious  or  charitable  corporations.  A 
comprehensive  work  on  corporations  states 
that  the  author  has  likewise  found  no  in- 
stance in  which  these  officers  were  wanting; 


3  Thomp.  Corp.  §  3850.  The  power  to  elect 
directors  has  been  held  to  be  inherent  and 
not  dependent  upon  statute;  Hurlbut  v. 
Marshall,  62  Wis.  590,  22  N.  W.  852. 

As  to  the  nature  of  the  office  and  its  pow- 
ers very  different  views  have  been  held,  and 
each  is  sustained  by  high  authority.     They 
have  been  held  to  be  the  corporation  itself 
"to  all  purposes  of  dealing  with  others"  and 
not   to    "exercise   a   delegated   authority   in 
the  sense  which  applies  to  agents  or  attor- 
neys;"   Shaw,   C.  J.,   in  Burrill  v.  Bank,   2 
Mete.  (Mass.)  163,  35  Am.  Dec.  395.    Another 
view,  and  probably  the  one  which  is  the  best 
settled  conclusion  of  judicial  opinion  in  this 
country,    is    that   they   are    general   agents; 
Simons  v.  Min.  Co.,  61  Pa.  202,  100  Am.  Dec. 
628 ;    State  v.  Smith,  48  Vt.  266 ;    Chetlain  v. 
Ins.  Co.,  86  111.  220;    President,  etc.,  of  Me- 
chanics' Bank  v.  R.  Co.,  13  N.  Y.  599 ;   Good- 
win v.  Ins.  Co.,  24  Conn.  591.     The  question 
is  of  importance  with  respect  to  the  power  of 
directors  to  act  outside  of  the  home  state  of 
the  corporation,  in  order  to  do  which,  they 
must  act  as  agents;     Bank   of   Augusta   v. 
Earle,   13   Pet.   (U.    S.)   519,  10  L.   Ed.   274; 
Wright  v.   Bundy,   11  Ind.  39S ;    McCall   v. 
Mfg.  Co.,  6  Conn.  428.    They  are  undoubted- 
ly, in  a  certain  sense,  agents,  but  they  are 
agents  of  the  corporation,  not  of  the  stock- 
holders;   they  derive  their  powers  from  the 
charter.     They  alone  have  the  management 
of  the  affairs  of  the  corporation,  free  from 
direct  interference  on  the  part  of  the  stock- 
holders ;   Dana  v.  Bank,  5  W.  &  S.  (Pa.)  246 ; 
Bank  of  U.  S.  v.  Dandridge,  12  Wheat.   (U. 
S.)  113,  6  L.  Ed.  552;   Dayton  &  C.  R.  Co.  v. 
Hatch,  1  Disn.  (Ohio)  S4.     The  stockholders 
cannot  perform  any  acts  connected  with  the 
ordinary  affairs  of  the  corporation;    Conro 
v.  Iron  Co.,  12  Barb.  (N.  Y.)  27,  63 ;   the  dele- 
gation of  powers  to  the  directors  excludes 
Control  by  the  stockholders ;  Union  Gold  Min. 
Co.  v.  Nat.  Bank,  2  Colo.  565.     See  Fleckner 
v.  Bank,  8  Wheat.  (U.  S.)  357,  5  L.  Ed.  631 ; 
Gashwiler  v.  Willis,  33  Cal.  11,  91  Am.  Dec. 
607. 

In  England  it  is  held  that  the  directors  of 
a  company  are  in  the  position  of  managing 
partners,  and  their  mandate  is  the  mandate 
of  the  whole  body  of  shareholders,  not  of 
the  majority  only.  A  simple  majority  of  the 
shareholders  cannot  alter  the  mandate  and 
override  the  discretion  of  the  directors; 
[1906]  2  Ch.  34.  The  ultimate  determination 
of  the  management  rests  with  the  stockhold- 
ers, when  by  the  charter  the  powers  of  the 
corporation  are  vested  in  them,  or  when  it 
is  silent  on  that  question  and  does  not  com- 
mit the  exclusive  control  to  the  directors: 
Union  Pac.  R.  Co.  v.  R.  Co.,  163  U.  S.  564,  16 
Sup.  Ct.  1173,  41  L.  Ed.  265.  In  this  case  the 
stockholders  had  adopted  a  by-law  provid- 
ing that  the  board  should  have  the  whole 
management  of  the  property  of  the  company, 
and  that  they  might  delegate  power  to  the 
executive  committee.    The  latter  authorized 


DIRECTORS 


8G9 


DIRECTORS 


the  president  to  execute  a  contract  and  the 
stockholders  approved  it  and  the  action  of 
the  committee,  but  the  board  never  formally 
acted ;  it  was  held  that,  as  they  had  full 
knowledge  of  it,  (hey  would  be  presumed  to 
have  ratified  it 

It  has  been  said  that  directors  are  special 
agents  of  the  corporation,  and  not  general 
agents;  Adrlance  v.  Boome,  52  Barb.  (N.  I.) 
399;  and  this  is  the  view  which  it  is  said 
that  in  England  "the  ingenuity  of  the  bench 
has  been  taxed  to  demonstrate;"  •">  Thomp. 
Corp.  |  3969;  Lindl.  Partn.  (4th  ed.)  249. 
Among  the  cases  relied  on  as  supporting  thlfl 
view  are,  6  Exch.  796;  8  0.  B.  849;  6  !l.  I  . 
Cas.  401  ;  L.  R.  5  Eq.  310;  but  the  distinction 
has  been  said  not  to  be  very  satisfactory; 
per  Comstock,  J.,  in  President,  Directors  & 
Co.  of  Mechanics'  Bank  v.  R.  Co.,  13  N.  Y. 
500.  See  Green's  Brice,  Ultra  Vires  470,  n. 
Although  the  weight  of  authority  is  as  stat- 
ed, it  is  nevertheless  important  to  keep  in 
view  the  different  theories  held,  in  order  to 
weigh  accurately  the  authorities  upon  the 
powers  of  directors,  and  to  distinguish  be- 
tween them  when  they  are  to  be  applied  to  a 
particular  case.  Directors  have  no  common- 
law  powers;  3  Thomp.  Corp-  §  3078:  but 
only  granted  ones,  although  in  dealing  with 
corporations  courts  sometimes  ascribe  to  the 
directors  certain  powers,  termed  implied 
powers,  which,  however,  in  fact  amount  to 
no  more  than  a  recognition  by  the  courts  of 
the  usages  of  business  and  acts  done  in  the 
course  of  business ;  id.  But  they  have  no 
power  to  make  changes  in  the  fundamental 
law  of  the  corporation,  their  relation  to  it 
being  analogous  to  that  of  a  legislature  to 
the  constitution  of  the  state ;  id.  §  3979.  Ac- 
cordingly, their  power  to  make  such  changes 
must  be  derived  from  the  charter.  They 
may  not  change  the  membership  or  capital 
of  the  corporation  by  increasing  either:  Chi- 
cago City  R.  Co.  v.  Allerton,  IS  Wall.  (U.  S.) 
233,  21  L.  Ed.  902;  Com.  v.  Gill.  3  Whart. 
(Pa.)  228;  Gill  v.  Balis,  72  Mo.  424;  or  re- 
ducing the  capital;  Percy  v.  Millaudon,  :'.  r.a. 
568;  Hartridge  v.  Rockwell,  R.  M.  Charlt 
200;  nor  make  by-laws  unless  specially  au- 
thorized; Watson  v.  Printing  Co.,  56  Mo. 
App.  145;  nor  request  or  accept  amendments 
to  the  charter;  Stark  v.  Burke,  9  La  Ann. 
341;  State  v.  Adams,  4-1  Mo.  570;  Zabrlskle 
v.  R.  Co.,  18  N.  J.  Eq.  178.  00  Am.  Dec.  017; 
Marlborough  Mfg.  Co.  V.  Smith.  2  Conn.  579 
(but  see  contra,  Dayton  &  C.  It.  Co.  v.  Hatch, 
1  Disney  (Ohio)  84,  which  is  doubted,  :: 
Thomp.  Corp.  §  30SO,  n.  7  I .  They  may  alien 
property  in  the  course  of  business;  ::  Thomp. 
Corp.  §  3984  (and  sec  note  on  this  subject; 
Garrett  v.  Plow  Co.,  50  Am.  Rep.  466)  :  or 
mortgage  corporate  propertj  :  Sargent  v. 
Webster,  13  Mete,   i  |  &j  ..  i  iec. 

743;  Miller  v.  R.  Co.,  36  Vr.  452;  Augusta 
Bank  v.  Hamblet,  "."»  Me.  491  :  Sendee  v. 
Pinkerton,   14  Allen    (Mass.)    3S1 ;    Hoyt   v. 


Thompson's  Ex'r,  19  N.  Y.  207 ;  or  make  an 
assignment  for  the  benefit  of  creditors;  Mer- 
rick v.  Trustees  of  Bank.  8  Gill    <Md.)    59; 
and  Bee  Thomp.   Corp.   chs.    145,    146,   which 
this  subject  and  the  valldil 
i  assignments 
others  and  of  thems 
away  corporate  property;   Bedford  B,  I 

r,  48  Pa.  29 :  En  i  John* 

son,  24   Me.   490;    nor  sell   the   stock   al 
than   par;    Sturges   v.    Stetson,    l 
Fed.   Cas.  No.    13,568;   in  money   or   mo 
worth;  Chouteau,  Harrison  &  Yalie  v.  I 
7  Mo.  App.  210  (but  see   Handley  v.   suit/.. 
139  D.  s.  -117.  11  Sup.  Ct  530,  35  L.  Ed.  227; 
2   Thomp.  Corp.  §   1005;   Stock)  :    nor. 
general  rule,  become  surety,  accommodation 
Indorser,    or   guarantor;    3  Thomp.    Corp.    § 
3990;    but   under   urgent,   necessity    their   as- 
sumption   of  a    debt    of   another    to    secure 
from  the  common  creditors  an  extension  for 
themselves   has   been   held   justified;    I 
v.  Blakely,  34  Vt.  134.     See  Zabrlskle  v.  R. 
Co.,  23  How.   (U.  S.)  381,  16  L.  Ed.  4S8.     In 
the  usual  course  of  business  they  have  a  gen- 
eral  power    to    borrow    money;    Fleckner    v. 
Bank,  S  Wheat.   (U.   S.)   338,  5  L.   Ed.  631; 
Kid-way  v.  Bank,  12  S.  &  R,   (Pa.)   256,   M 
Am.    Dec.  681;    and    secure    it    by   assigning 
securities  owned  by  the  corporation;   North 
Hudson  Mnt.   Bhig.  &  Loan  Ass'n  v.  Bank, 
79  Wis.  31,  47  X.   W.  300,   11   L.   R.   A 
and  one  so  dealing  with  them  is  not  af 
with    knowledge    of    a    breach    of    trust    by 
them;  Borland  v.  Haven.  37  Fed.  394.     They 
may  make,   accept,  or  indorse  aegottal 
per;  Stevens  v.  Hill,  29  Me.  133;  but  a  ■ 
director    is   not    authorized    to    make   corpo- 
rate notes;   Lawrence  v.   Gebhard.  41    Barb. 
(N.  Y.)  575.     They  may  determine  the  sala- 
ries of  officers  of  the  corporation;  Waite  v. 
Min.  Co.,  37  vt.  oos.    Under  the  English  de- 
cisions the  powers  of  corporations  with  re- 
spect to  borrowing  money  and  making  note-; 
are  now  restricted;  3  Thomp.  Corp.   J 
n.   3. 

While  directors   are   not    strictly  trn 
yet  they  occupy  a  fiduciary  position; 
'son  v.   Ludeling,  21    Wall.  (U.  S.)   616,  22  L 
I  an  &   X.  A.   Ry.   C 

59    Me.   277;    Iloyle   v.   R.  Co..   54    X.    Y. 
13    Am.    Rep.    595 ;    Koehler    v.    iron    Co.,    2 
Black    (U.   S.)    715,    17    I..    Ed.  3! 
v.    Woodward.   5   Sawy.   403,    Fed 
3,223;  Deaderics  v.  Wilson.  8  Baxt   (Tenn.) 
108;  s,  ott   v.  i  »epeyster,  1  Edw.  Ch.  I  N.  v.  | 
513;  Covington  &  L.  R.  Co.  v.  '  Heirs, 

0  Bush  (Ky.)  468;  Hale  v.  Bridge  Co.,  8 
Kan.  466;  Black  v.  i  ,24  N.  J.  Eq. 

463;  sweeny  v.  Beflnlng  Co.,  30  W.  v.. 
4  s.  E.  431,  8  Am.  S  i;  Moraw.  Priv. 

Corp.  516;  and  by  some  authorities 

they  are  termed  trustees;  Walworth,  Ch.,  in 
Robinson  v.  Smith,  3  Paige  (N.  Y.i  222,  21 
Am.  1  Hardwicke,  Ld.  Ch.,  in  2  Atk. 

400;  Bent  v.  Priest,  so  Mo.  475. 


DIRECTORS 


870 


DIRECTORS 


Directors,  in  buying  shares  from  other 
stockholders,  when  there  is  a  possibility  of 
reselling  at  a  profit,  are  not  bound  to  dis- 
cover all  the  facts ;  their  fiduciary  character 
does  not  extend  that  far;  [1902]  2  Ch.  421. 
But  a  director  upon  whose  action  the  value 
of  shares  depends  cannot  avail  of  the  knowl- 
edge of  what  his  own  action  will  be  to  ac- 
quire shares  from  those  whom  he  intention- 
ally keeps  in  ignorance  of  his  expected  ac- 
tion and  the  resulting  value  of  the  shares. 
This  rule  was  applied  in  view  of  the  special 
circumstances :  That  the  director  owned 
three-fourths  of  the  stock,  was  at  the  time 
of  his  purchase  administrator  general  of  the 
company,  with  large  powers,  and  engaged  in 
negotiations  which  finally  led  to  a  sale  of 
the  company's  land  to  the  government  at  a 
price  which  greatly  enhanced  the  value  of 
the  stock;  Strong  v.  Repide,  213  U.  S.  419, 
29  Sup.  Ct.  521,  53  L.  Ed.  853,  citing  Stewart 
v.  Harris,  69  Kan.  49S,  77  Pac.  277,  66  L.  R. 
A.  261,  105  Am.  St.  Rep.  178,  2  Ann.  Cas.  873, 
and  Oliver  v.  Oliver,  118  Ga.  362,  45  S.  E. 
232,  and  not  deciding  as  to  whether  the  rule 
applied  to  the  bare  relationship  between  di- 
rector and  shareholder. 

They  are  charged  with  trustees'  duties  and 
bound  to  care  for  corporation  property  and 
manage  its  affairs  in  good  faith ;  and  for 
violation  of  that  duty,  resulting  in  waste  of 
its  assets,  injury  to  its  property,  or  unlaw- 
ful gain  to  themselves,  they  are  liable  to  ac- 
count in  equity  the  same  as  ordinary  trus- 
tees; Bosworth  v.  Allen,  168  N.  Y.  157,  61 
N.  E.  163,  55  L.  R.  A.  751,  85  Am.  St.  Rep. 
667,  where  the  directors  conspired  to  wreck 
the  corporation.  They  are  held  not  trustees 
in  the  strict  and  technical  sense;  Booth  v. 
Robinson,  55  Md.  419;  Wallace  v.  Savings 
Bank,  89  Tenn.  649,  15  S.  W.  448,  24  Am.  St 
Rep.  625;  at  most  directors  of  a  bank  can 
only  be  considered  implied  trustees ;  Emer- 
son v.  Gaither,  103  Md.  564,  64  Atl.  26,  8  L. 
R.  A.  (N.  S.)  738,  7  Ann.  Cas.  1114;  Landis 
v.  Saxton,  105  Mo.  486,  16  S.  W.  912,  24  Am. 
St  Rep.  403;  Appeal  of  Spering,  71  Pa.  11, 
10  Am.  Rep.  684;  the  liability  of  a  bank  di- 
rector is  held  to  be  that  of  a  mandatary  or 
gratuitous  bailee,  who  undertakes  without 
compensation  to  do  something  for  another, 
and  he  is  therefore  held  only  to  that  degree 
of  care  which  prudent  men  in  like  circum- 
stances ordinarily  give  to  the  same  duties. 
In  Swentzel  v.  Bank,  147  Pa.  140,  23  Atl.  405, 
415,  15  L.  R.  A.  305,  30  Am.  St.  Rep.  718,  the 
position  of  Judge  Sharswood  in  the  earlier 
case  is  approved  and  the  court  said :  "The 
ordinary  care  of  a  business  man  in  his  own 
affairs  means  one  thing ;  the  ordinary  care  of 
a  gratuitous  mandatary  is  quite  another  mat- 
ter. The  one  implies  an  oversight  and 
knowledge  of  every  detail  of  his  business ; 
the  other  suggests  such  care  only  as  a  man 
can  give  in  a  short  space  of  time  to  the  busi- 
ness of  other  persons,  for  which  he  receives 
uo  compensation."     The  customs  and   meth- 


ods of  a  community  in  which  a  banking  busi- 
ness is  done  are,  for  such  community,  a 
standard  of  prudence  and  diligence  by  which 
the  responsibility  of  bank  officers  and  direc- 
tors are  to  be  tested ;  Wheeler  v.  Bank,  75 
Fed.  781.  The  degree  of  care,  skill  and  judg- 
ment depends  upon  the  subject  to  which  it 
is  to  be  applied,  the  particular  circumstanc- 
es of  the  case,  and  the  usages  of  the  busi- 
ness; North  Hudson  Mut.  Bldg.  &  Loan 
Ass'n  v.  Childs,  82  Wis.  460,  52  N.  W.  600, 
33  Am.  St.  Rep.  57;  Killen  v.  Barnes,  106 
Wis.  546,  82  N.  W.  536;  Savings  Bank  of 
Louisville's  Assignee  v.  Caperton,  87  Ky.  306, 
8  S.  W.  885,  12  Am.  St.  Rep.  488;  Warren 
v.  Robison,  19  Utah,  289,  57  Pac.  287,  75  Am. 
St.  Rep.  734.  The  question  of  negligence  is 
ultimately  a  question  of  fact  under  all  the 
circumstances ;  Briggs  v.  Spaulding,  141  U. 
S.  132,  11  Sup.  Ct.  924,  35  L.  Ed.  662. 

Knowledge  of  all  the  affairs  of  a  bank 
cannot  be  imputed  to  the  directors  to  charge 
them  with  liability ;  Mason  v.  Moore,  73  Ohio 
-St.  275,  76  N.  E.  932,  4  L.  R.  A.  (N.  S.)  597, 
4  Ann.  Cas.  240.  They  cannot  be  held  civilly 
liable  to  one  deceived  to  his  injury  by  false 
representations  as  to  the  bank's  financial 
condition,  contained  in  the  official  report  to 
the  comptroller  of  the  currency,  made  and 
published  under  U.  S.  R.  S.  §  5211,  where 
they  merely  negligently  participated  in  or 
assented  to  such  representations,  since  the 
exclusive  test  of  their  liability  is  furnished 
by  U.  S.  R.  S.  §  5239,  which  makes  a  know- 
ing violation  of  the  provisions  of  the  title 
relating  to  national  banks  a  prerequisite  to 
such  liability ;  Yates  v.  Bank,  206  U.  S.  158, 
27  Sup.  Ct.  638,  51  L.  Ed.  1002. 

In  many  other  cases  the  degree  of  care  re- 
quired is  held  to  be  that  which  a  prudent  man 
exercises  about  his  own  affairs ;  Wallace  v. 
Bank,  89  Tenn.  630,  15  S.  W.  448,  24  Am. 
St  Rep.  625;  Marshall  v.  Bank,  85  Va.  676, 
8  S.  E.  586,  2  L.  R.  A.  534,  17  Am.  St.  Rep. 
84;  Union  Nat.  Bank  ,v.  Hill,  148  Mo.  380, 
49  S.  W.  1012,  71  Am.  St.  Rep.  615  ;  Ackerman 
v.  Halsey,  37  N.  J.  Eq.  356;  Horn  Silver 
Min.  Co.  v.  Ryan,  42  Minn.  196,  44  N.  W.  56. 
It  is  said  they  are  not  merely  required  to  be 
honest,  but  they  must  also  bring  to  the  dis- 
charge of  the  duties  they  undertake  ordinary 
competency.  They  cannot  excuse  impru- 
dence or  indifference  by  showing  honesty  of 
intention  coupled  with  gross  ignorance  and  in- 
experience, or  coupled  with  an  absorption  of 
their  time  and  attention  in  their  private  af- 
fairs; Warner  v.  Penoyer,  91  Fed.  587,  33 
C.  C.  A.  222,  44  L.  R.  A.  761;  Williams  v. 
McKay,  46  N.  J.  Eq.  25,  18  Atl.  824.  The 
ordinary  care  and  prudence  required  of  bank 
directors  is  held  to  include  something  more 
than  officiating  as  figureheads.  They  may 
commit  the  business  as  defined  to  duly  au- 
thorized officers,  but  this  does  not  absolve 
them  from  the  duty  of  reasonable  supervi- 
sion ;  Martin  v.  Webb,  110  U.  S.  7,  3  Sup.  Ct 
428,  2S  L.  Ed.  49;  nor  ought  they  to  be  per- 


DIRECTORS 


871 


DIRECTORS 


nuitted  to  be  shielded  from  liability  because 
of  want  of  knowledge  of  wrongdoing,  if  that 
ignorance  is  the  result  of  gross  inattention; 
Briggs  v.  Spaulding.  141  U.  S.  132,  11  Sup. 
Ct.  924,  35  L.  Ed.  862. 

It  is  the  duty  of  the  directors  of  a  national 
bank  to  maintain  a  supervision  of  its  affairs; 
to  have  a  general  knowledge  of  the  manner 
in  which  its  business  is  conducted  and  of 
the  character  of  that  business,  and  to  have 
at  least  such  a  degree  of  Intimacy  with  its 

affairs  as  to  know  to  whom  and  upon  wh:it 
security  Its  large  lines  of  credit  are  given; 
and  generally  to  know  of  and  give  directions 
as  to  the  Important  and  general  affairs  of 
the  bank,  of  which  the  cashier  executi  the 
details;  Gibbons  v.  Anderson,  80  Fed 
they  cannot  shift  Buch  duties  upon  the  ex- 
eeutive  officers;  Wan-en  v.  Robison,  lit  Utah 
289,  57  I'ae.  287,  75  Am.  St.  Rep.  734.  They 
will  he  presumed  to  have  known  what  they 
ought  to  have  known;  Marshall  v.  Bank,  85 
To,  8  S.  B.  586,  2  L.  B.  A.  534,  IT  Am. 
St.  Rep.  84;  Martin  v.  Webb,  110  U.  S.  7,  3 
Sup.  Ct.  428,  28  L.  Ed.   19. 

Directors  also  occupy  a  fiduciary  relation 
to  creditors,  for  whom  they  have  been  said 
to  be  quasi  trustees,  and  when  the  corpora- 
tion becomes  insolvent,  they  become  trustees 
for  the  creditors  and  stockholders;  Bradley 
v.  Farwell,  1  Holmes  433,  Fed.  Cas.  No.  1,779; 
Clark  v.  San  Francisco,  53  Cal.  306;  Good 
v.  Sherman,  37  Tex.  GGO.  Where  directors 
of  an  insolvent  corporation  confessed  a  judg- 
ment against  it  in  favor  of  one  of  themselves 
to  give  him  an  advantage  by  priority  of  lien 
over  another  creditor,  about  to  obtain  judg- 
ment, the  two  judgments  were  placed  upon 
the  same  footing;  Coons  v.  Tome,  9  Fed.  ^'■'•-. 
See  Thomp.  Liab.  of  Dir.  397;  Good  in  v. 
Canal  Co.,  18  Ohio  St.  109,  98  Am.  Dec.  95. 
Directors  are  held  personally  responsible  for 
acts  of  misfeasance  or  gross  negligence,  or 
for  fraud  and  breach  of  trust;  L.  R.  5  II.  L. 
480;  Lewis  v.  Steel  Works,  50  Vt.  477;  Ap- 
peal of  Spering,  71  Pa.  11,  10  Am.  Rep.  084; 
68  Law  T.  380;  Mutual  Bldg.  Fund  &  Dollar 
Sav.  Bank  v.  Bosseiux,  .".  Fed.  S17.  An  ac- 
tion to  enforce  this  responsibility  must  be 
brought  on  behalf  of  all  the.  stockholders, 
and  not  by  a  single  one;  Craig  v.  Gregg,  83 
Pa.  19;  and  cannot  he  brought  by  a  creditor; 
Zinn  v.  Mendel,  '.»  W.  Va.  580;  contra,  Tate 
v.  Bates,  118  N.  C.  287,  24  S.  E.  482,  HI  Am. 
St.  Rep.  719,  where  it  is  held  that  an  action 
will  lie  against  them  for  any  injury  to  the 
corporation  or  a  creditor  by  their  fraud, 
deceit,  neglect,  or  other  misconduct  It  is 
held  to  be  the  duty  of  bank  directors  to  see 
that  the  directions  of  the  banking  laws  are 
complied  with  and  that  depositors  may,  in 
the  absence  of  a  statute  to  the  contrary, 
maintain  an  action  to  recover  losses  result- 
ing from  a  breach  of  such  duty ;  Boyd  v. 
Schneider,  131  Fed.  223,  65  C.  C.  A.  209,  re- 
versing  124    Fed.    239.     In    Brinckerhoff    v. 


ick,  88  N.  T.  52,  It  was  said  the  lia- 
bility of  directors  for  violations  of  their  du- 
ty, and  the  Jurisdiction  of  equity  to  afford 
redress  to  the  corporation  ami  it-  share- 
holders, exist  imle;,<  ndently  of  statute.  This 
was   a   proceeding   by   a  and 

in  Dykman  v.  Keener,  154  N.  Y. 
B.  mi  I.  it  was  referred  to  to 
ti"ii  in  equity  will  lie  by 
it  was  said:    There  is  a  wid<  l  dif- 

ference between  such  a  case  and 

linn  is   by  the  corporal 
delinquent  directors. 

A  director  is  an  agent  of  the  corpor 
and    accounts    primarily    with    the    corpora- 
tion, which  bolds  the  legal  title  to  the  a 
but   there   is    no   privity    at    law    between    a 

bolder. and    the    directors,    and 
equity    is    generally    the    proper    tribunal    in 
which  to  enforce  his  rights,  which  are  equi- 
table and  not  legal;  Emerson  v.  Gaither,  103 
Md.  564,  64  Atl.  2';.  s  L.   K.  A.    |  X.   B.      1 
7    Ann.    Cas.    1114,   where   it   was    held    that 
a    receiver    may    proceed    in    equity    to    hold 
bank   directors  liable   for  losses   caused   by 
their   permitting   Illegal    loins   and    declaring 
Improper  dividends.    See  also  North  Hudson 
Mut.    Building   &   Loan    Ass'n    v.    Chi 
Wis.  460,  52  X.  W.  600,  33  Am.  St.  Bep.  57; 
Robinson  v.    Hall.  63    led.    222,    12 
674;    Hodges   v.    Screw  Co.,  1    B.   I.   312,   5:; 
Am.  Die.   624;    Williams  v.   McKay.  40    X.  .1. 
Eq.  I     '.  53  Am.  Rep.  77."  :  Cockrill  v.  I 
86  Fed.  7,  29  C.  C.  A.  529.     In  the  last  case 
it   was   said   the  office  of   a   director   is   so 
much    akin    to    those    of   a    trustee    that    in 
many    cases    no    substantial    reason    can    be 
given  for  e  -  directors  from  that  de- 

gree of  control  by  a  court  of  chancery  which 
such  courts  ordinarily  exercise  over  trus- 
tees; and  to  the  same  effect  Bosworth  v. 
Allen,  TVS  x.  Y.  157,  63  X.  E.  163,  55  L.  R. 
A.  751,  85  Am.  St.  Rep.  667,  where  the  charge 
against  the  directors  was  waste  of  corporate 
assets  and  unlawful  gain  to  themselves. 
Other  New  York  cases  restricted  the  right 
of  a  receiver  to  bring  an  action  against  di- 
rectors in  equity  where  the  charge  against 
them  was  negligent  and  wasteful  conduct 
and  a  violation  of  the  banking  laws  in  many 
respects,  and  held  that  an  action  at  law  was 
the  proper  remedy;  Dykman  v.  Keenoy.  1."  1 
N.  Y.  -1^-"..  48  X.  i:.  894,  following  I 
Fitzgerald,  143  X.  V.  ::77.  38  X.  B.  ::71  : 
Stephens  v.  Ovorstol/.,  43  Fed.  771.  In  a 
case  in  which  it  did  not  appear  that  an  ac- 
counting was  necessary,  it  was  neld  that  the 
remedy  of  a   receiver  was  at  law;  Thompson 

v.  Greeley,  107  Mo.  .".77.  17  s.  \v. 

Directors  are  not  liable  for  the  fraud  of 
agents  employed  by  them;  l'<;  W.  R.  117; 
Thomp.   Liab.  of  Dir.  355.     Directors  of  a 

national   bank  are  not  insurers  of  the  fideli- 

ils  agents,  and  are  not  response 
losses    resulting   from    the    wrongful   act   or 
omission   of   other    directors   or   agents,    un- 


DIRECTORS 


872 


DIRECTORS 


less  the  loss  Is  a  consequence  of  their  own 
neglect  of  duty ;  Briggs  v.  Spaulding,  141 
U.  S.  132,  11  Sup.  Ct.  924,  35  L.  Ed.  662. 
It  is  their  duty  to  use  their  best  efforts 
to  promote  the  interests  of  the  stockholders, 
and  they  cannot  acquire  any  adverse  inter- 
ests; Wardell  v.  R.  Co.,  4  Dill.  330,  Fed. 
Cas.  No.  17,164 ;  Farmers'  &  Merchants'  Bank 
of  Los  Angeles  v.  Downey,  53  Cal.  466,  31 
Am.  Rep.  62;  European  &  N.  A.  Ry.  Co.  v. 
Poor,  59  Me.  277;  Ryan  v.  R.  Co.,  21  Kan. 
365.  A  director  may  become  a  creditor  of 
a  corporation,  where  his  action  is  not  taint- 
ed with  fraud  or  other  improper  act;  Bor- 
land v.  Haven,  37  Fed.  394.  It  is  said  to  be 
the  rule  that  contracts  made  by  a  director 
with  his  company  are  voidable;  L.  R.  6  H. 
L..1S9;  Wardell  v.  R.  Co.,  4  Dill.  330,  Fed. 
Cas.  No.  17,164 ;  Appeal  of  Rice,  79  Pa.  16S ; 
Twin  Lick  Oil  Co.  v.  Marbury,  91  U.  S.  587, 
23  L.  Ed.  328;  President  &  Trustees  of  City 
of  San  Diego  v.  R.  Co.,  44  Cal.  106.  In  many 
instances  the  courts  have  held  them  abso- 
lutely void.  In  a  leading  English  case  it 
was  held  that  the  directors  were  agents  of 
the  corporation  and  could  not  be  permitted 
to  enter  into  engagements  or  have  any  per- 
sonal interest  which  might  possibly  conflict 
with  the  interests  of  the  corporation,  and 
that  no  question  could  be  raised  as  to  the 
fairness  of  such  a  contract;  1  McQ.  H.  L. 
(Sc.)  461 ;  and  In  several  American  cases  tak- 
ing this  view  it  is  considered  that  directors 
were  subject  to  the  rule  applying  to  all  per- 
sons standing  in  relations  of  trust  and  in- 
volving duties  inconsistent  with  their  deal- 
ing with  the  trust  property  as  their  own ; 
Gardner  v.  Ogden,  22  N.  Y.  327,  78  Am.  Dec. 
192 ;  Port  v.  Russell,  36  Ind.  60,  10  Am.  Rep. 
5;  Haywood  v.  Lincoln  Lumber  Co.,  64  Wis. 
639,  26  N.  W.  184.  A  high  authority  says, 
"there  is  no  sound  principle  of  law  or  equity 
which  prohibits"  such  contracts,  if  entered 
into  in  good  faith,  and  where  there  is  a 
quorum  of  directors  on  the  other  side  of 
the  contract  present,  so  that  the  adoption  of 
the  measure  does  not  depend  on  the  vote  of 
the  interested  director,  and  even  in  the  lat- 
ter case  the  contract  is  good  at  law.  Be- 
cause, however,  he  is  on  both  sides  of  it,  eq- 
uity will  closely  scrutinize  it  and  set  it  aside 
if  it  violates  the  good  faith  which  the  cir- 
cumstances require ;  3  Thomp.  Corp.  §  4059 ; 
but  in  many  cases  contracts  of  a  corpora- 
tion with  directors,  fairly  made,  have  been 
upheld;  Jesup  v.  R.  Co.,  43  Fed.  483;  Barr 
v.  Glass  Co.,  51  Fed.  33;  Illinois  Pneumatic 
Gas  Co.  v.  Berry,  113  U.  S.  322,  5  Sup.  Ct. 
525,  28  L.  Ed.  1003;  Barnes  v.  Brown,  80 
N.  Y.  527;  Smith  v.  Skeary,  47  Conn.  47. 
The  true  rule  to  be  ascertained  from  the 
cases  is  probably,  that  as  to  such  contract 
there  is  a  presumption  of  invalidity  which 
casts  upon  the  party  claiming  under  sucb 
contracts  the  burden  of  showing  that  no  un- 
due advantage  was  taken  or  resulted  from 


the  relation,  and  the  evidence  must  clearly 
show  such  fairness  and  good  faith ;  Skinner 
v.  Smith,  134  N.  Y.  240,  31  N.  E.  911;  War- 
dell v.  R.  Co.,  103  U.  S.  651,  26  L.  Ed.  509. 
Accordingly,  the  more  reasonable  view  is 
that  first  stated,  and  it  is  supported  by  the 
weight  of  American  authority;  3  Thomp. 
Corp.  §  4061 ;  but  courts  holding  the  extreme 
view  that  such  contracts  are  void  will  not 
enforce  the  fairest  contract  if  the  corpora- 
tion exercises  the  option  to  set  it  aside;  id. 

Some  courts  take  the  view  that  in  all 
cases  of  such  contracts  their  nature  and 
terms  and  the  circumstances  under  which 
they  were  made  must  be  taken  into  consid- 
eration, and  that  after  having  been  subject- 
ed to  careful  scrutiny  they  will  be  enforced 
if  for  the  benefit  of  the  corporation ;  Stewart 
v.  R.  Co.,  41  Fed.  736;  Appeal  of  Hammond, 
123  Pa.  503,  16  Atl.  419.  A  corporation  act- 
ing in  good  faith  and  with  the  sole  object 
of  continuing  a  business  which  promises  to 
be  successful,  may  give  a  mortgage  to  direc- 
tors who  have  lent  their  credit  to  it,  in  order 
to  induce  a  continuance  of  that  credit,  and 
to  obtain  renewals  of  maturing  paper  at  a 
time  when  it  is  in  fact  a  going  business  and 
expects  to  continue  in  business,  although 
its  assets  may  not  in  fact  equal  its  indebted- 
ness ;  Sandford  Fork  &  Tool  Co.  v.  Howe, 
Browne  &  Co.,  157  U.  S.  312,  15  Sup.  Ct.  621, 
39  L.  Ed.  713.  See,  generally,  3  Thomp.  Corp. 
§§  4059  to  4075 ;  note  by  J.  C.  Harper ;  Cook 
v.  Sherman,  20  Fed.  175,  and  one  by  Dr. 
Francis  Wharton;  Meeker  v.  Iron  Co.,  17 
Fed.  53.  This  rule  extends  even  to  cases 
where  a  majority  of  directors  in  one  corpo- 
ration contract  with  another  corporation  in 
which  they  are  directors;  Green's  Brice,  Ul- 
tra Vires  479,  n. ;  Attaway  v.  Bank,  93  Mo. 
485,  5  S.  W.  16.  A  railroad  company  de- 
sired to  purchase  the  entire  property  of  a 
canal  company,  both  companies  having  the 
same  president,  who  by  a  purchase  of  a  ma- 
jority of  the  stock  of  the  canal  company 
at  nominal  rates  obtained  the  election  of  di- 
rectors favorable  to  the  railroad  company. 
Through  collusive  legal  proceedings  the  rail- 
road company  purchased  the  canal  property 
at  a  price  which  was  grossly  inadequate. 
The  sale  was  set  aside  as  a  sale  by  a  trustee 
to  himself,  neither  in  good  faith  nor  for  an 
adequate  consideration ;  Goodin  v.  Canal  Co., 
18  Ohio  St.  169,  98  Am.  Dec.  95.  The  same 
principles  are  supported  by  many  authori- 
ties; Koehler  v.  Iron  Co.,  2  Black  (U.  S.) 
715,  17  L.  Ed.  339 ;  Cook  v.  Mill  Co.,  43  Wis. 
433;  Stewart  v.  R.  Co.,  3S  N.  J.  L.  505; 
Rice's  Appeal,  79  Pa.  168. 

In  some  cases  the  question  has  arisen  as 
to  the  effect  of  a  minority  only  of  the  di- 
rectors being  interested  in  both  companies. 
A  contract  made  between  two  corporations 
through  their  respective  boards  of  directors 
is  not  voidable  at  the  suit  of  one  of  the  par- 
ties thereto  from  the  mere  circumstance  that 


DIRECTORS 


873 


MRI  -TORS 


a  minority  of  its  board  of  directors  are  also 
directors  of  the  other  company ;  U.  8.  Rol- 
ling Stock  Co.  v.  R.  B.f  34  Ohio  St.  450, 
32  Am.  Rep.  3S0,  where  the  court  said  it  had 
found  no  case  holding  such  a  contract  in- 
valid from  the  mere  fact  that  a  minority  of 
the  directors  of  one  company  are  also  di- 
rectors <>f  the  other  company,  and,  "in  our 
sent,  where  a  majority  of  the  board 
are  not  adversely  Interested  and  have  no 
adverse  employment,  the  right  to  avoid  the 
contract  or  transaction  dues  not  exist  with- 
out proof  of  fraud  or  unfairness ;"  Id.; 
v.  Ry.  Co.,  10  Fed.  413;  li.uts  v.  Brown, 
77  111.  226.  This  rule  Is  criticised  by  Mr. 
Harper  In  a  note  to  Cook  v.  Sherman,  20 
Fed.  180,  upon  the  ground  that  the  corpora- 
tion is  entitled  to  a  lull  board  of  disiio 
ed  directors.  In  another  case  It  was  said: 
"A  director  whose  personal  interests  are  ad- 
verse to  those  of  the  corporation  has  no 
right  to  be  or  act  as  a  director.  As  soon  as 
he  fiuds  that  he  has  personal  interests  in 
conflict  with  those  of  the  company  he  ought 
to  resign ;"  Goodin  v.  Canal  Co.,  18  Ohio 
St.  183,  98  Am.  Dec.  95.  in  considering  the 
same  subject  McCrary,  J.,  said:  "Besides, 
where  Shall  we  draw  the  line?  If  the  pres- 
ence of  two  interested  directors  in  the  board 
at  the  time  of  the  ratification  does  not  viti- 
ate the  act,  would  the  presence  of  a  larger 
number  of  such  directors  have  that  effect, 
and,  if  so,  what  number."  Thomas  v.  R.  Co., 
2  Fed.  879.  On  appeal  his  judgment  was 
affirmed  and  the  supreme  court  per  Miller,  J., 
said,  "We  concur  with  the  circuit  judge  that 
no  such  contract  as  this  can  be  enforced  in 
a  court  of  equity  where  it  is  resisted  and 
its  immorality  is  brought  to  light  .  .  . 
Such  contracts  are  not  absolutely  void,  but 
are  voidable  at  the  election  of  the  parties 
affected  by  the  fraud.  It  may  often  occur 
that,  notwithstanding  the  vice  of  the  trans- 
action, namely,  the  directors  or  trusters,  or 
a  majority  of  them,  being  interested  in  op- 
position to  the  interest  of  those  whom  they 
represent,  and  in  reality  parties  to  both 
sides  of  the  contract,  that  it  may  be  one 
which  those  whose  confidence  is  abused  may 
prefer  to  ratify  or  submit  to.  It  is.  there- 
fore, at  the  option  of  these  latter  to  avoid 
it,  and,  until  some  act  of  theirs  indicates 
such  a  purpose,  it  is  not  a  nullity."  Thomas 
v.  R.  Co.,  109  U.  S.  524,  3  Sup.  Ct.  315,  27 
L.    Ed.  1018. 

Arrangements  made  by  directors  of  a  rail- 
road company  to  secure  from  it  unusual  ad- 
vantages through  the  medium  of  a  new  com- 
pany in  which  they  are  to  be  Stockholders, 
and  which  is  to  receive  valuable  contracts 
from  the  railroad  company,  are  not  to  be 
enforced  by  the  courts;  Warded  v.  R.  Co., 
103  U.  S.  651,  26  L.  Ed.  509,  affirming  War- 
dell  v.  R.  Co.,  4  Dill.  330,  Fed.  Cas.  No. 
17,164;  such  contracts  cannot  be  made  or 
ratified    by   a    board   of   directors    including 


members  of  the  construction   company  and 

are  void  ;  Thomas  v.  B.  •'"..  " 

Sup.  Ct  315,  U7  I..  Ed.  1018;  but  a  re. 

may    be   had   on   such   a  for    work 

actually    benefiting    the    ralli  puny, 

on  a  quantum  meruit;  id. 

Third     paries,     without     notice,     are     not 
bound    to    know   of   limitation 
directors    by    by-laws    or    oth 
Ultra    Vires    IT) ;   L.   R.  B 
Noble,  12  I  lush.  'Ma  .-'.i   1  :  bi 
R.  Co.,  62  N.  V.  240;   Salem  Bank  v.   B 
17  Mass.  1,  'J  Am.   Dec.  111.     When  con 
as  a  board,  the  directors  are  held   I 

ail    the    corporate    powers;    Boyt    v. 
Thompson's  Ex'r,  10  N.   v.   uo7;   BurrUl   v. 
Bank,  2  Mete.  (Mass.)  168,  35  Am.  Dec. 
As   principals   they   can   delegate    the 
formance  of  acts  which  they  then. 
perform ;    Jones    7.  •Williams,    139    Mo.    1,    .';'.' 
s.  W.  486,   W  s.  w.  353,  37  L,  R,  A.  8 
Am.  St  Rep.  436,  where  it  is  held  that  with- 
out  statutory    authority    directors   have    the 
power  to  delegate  to  agents,  officers  oi 
utive  committees  the  power  to  transact,   not 
only   ordinary    business,   but   business   requir- 
ing the  highest  degree  of  judgment.     These 
agents  or   managing   officers   have   incidental 
power  to  employ  all  assistants  and  to  do  all 
acts  necessary  properly  to  conduct  the  busi- 
iver  which  they  have  charge.     Formal 
action  of  the  board  of  directors  is  not  neces- 
sary in  order  to  confer  the  authority.    Tin- 
power  expressly  given   by  statute  to  appoint 
SUCh    subordinate   officers   and  agents  as   the 
business   of  the   company   may   require 
not  limit  nor  diminish  the  common-lass 
er  to  delegate  authority. 

Where  the  charter  does  not  otherwise  pro- 
vide, it  is  held  that  a  banking  corporation 
may  be  represented  by  its  cashier  in  trans- 
actions outside  of  bis  ordinary  duties,  with- 
out his  authority  to  do  so  being  in  writing 
or  appearing  upon  the  record  of  the  pr- 
ints of  the  directors.  His  authority  may 
be  by  parol  and  inferred  from  circumstances. 
It  may  be  inferred  from  the  general  man 
ner  in  which,  for  a  period  sufficiently  long 
to  establish  a  settled  course  of  business,  he 
has  been  allowed  to  conduct  its  affairs,  it 
may  be  implied  from  the  conduct  or  acqui- 
escence of  the  directors;  Martin  v.  Webb. 
110  U.  S.  7,  3  Sup.  Ct  428,  28  L  Ed.  49; 
Putnam  v.  U.  s..  162  U.  s.  713,  16  Sup.  Ct 
:rj:\.  10  I..  Ed.  lllv-  Statutes  requiring  a 
corporal  ion  to  be  managed  by  directors,  but 
authorizing  them  to  appoint  such  subordi- 
nate officers  and  agents  as  the  business  may 
require,  do  not  prevent  the  directors  from 
entrusting  the  entire  management  of  the 
business  to  a  president,  as  this  is  not  a  del- 
egation of  corporate  powers,  but  a  mere  au- 
thorization to  perform  the  business  for  and 
in  the  name  of  the  corporation;  Jon< 
Williams.  139  Mo.  i.  39  S.  W.  186,  MJ  S.  W. 
:;:>o,  C7  L.   R.  A.  682,  61  Am.   St  Rep.  436. 


DIRECTORS 


874 


DIRECTORS 


This  may  be  done  either  by  express  resolu- 
tion or  by  acquiescence  in  a  course  of  deal- 
ing. A  person  dealing  with  the  president  of 
a  corporation  in  the  usual  manner,  and  with- 
in the  powers  which  the  president  has  been 
accustomed  to  exercise  without  the  dissent 
of  the  directors,  would  be  entitled  to  assume 
that  the  president  had  actually  been  invest- 
ed with  those  powers ;  Morawetz,  Priv.  Corp. 
§  538;  Jones  v.  Williams,  139  Mo.  1,  39  S. 
W.  486,  40  S.  W.  353,  37  L.  R.  A.  6S2,  61 
Am.  St.  Rep.  436. 

It  has,  however,  been  contended  that,  as 
the  directors  are  agents,  they  cannot  dele- 
gate their  authority;  Gillis  v.  Bailey,  21  N. 
H.  149;  Charlestown  Boot  &  Shoe  Co.  v. 
Dunsmore,  60  N.  H.  85;  and  see  Canada-At- 
lantic &  Plant  S.  S.  Co.  v.  Flanders,  145  Fed. 
875,  76  C.  C.  A.  1  (dictum);  20  Harv.  L. 
Rev.  225,  where  it  is  said  there  is  curiously 
little  authority  on  this  point. 

The  powers  of  directors  of  eleemosynary 
corporations  are  much  greater  than  those  of 
moneyed  corporations;  State  v.  Adams,  44 
Mo.  570.  Unless  the  charter  provides  other- 
wise, directors  need  not  be  chosen  from 
among  the  stockholders;  L.  R.  5  Ch.  Div. 
306;   State  v.  McDaniel,  22  Ohio  St.  354. 

Directors  de  facto  are,  presumably,  direc- 
tors de  jure,  and  their  acts  bind  the  com- 
pany;  L.  R.  7  Ch.  5S7.  A  director  who  is 
permitted  to  act  as  such  after  he  has  sold 
all  his  stock,  is  a  director  de  facto;  Wile  & 
Brickner  Co.  v.  Land  Co.,  4  Misc.  570,  25 
N.  Y.  Supp.  794.     See  De  Facto. 

Their  liability  for  acts  expressly  prohibit- 
ed by  the  company's  charter  is  not  created 
by  force  of  statutory  prohibition.  The  per- 
formance of  acts  which  are  illegal  or  pro- 
hibited by  law  may  subject  the  corporation 
to  a  forfeiture  of  its  franchises  and  the  di- 
rectors to  criminal  liability;  but  this  would 
not  render  them  civilly  liable  for  damages. 
Their  liability  to  the  corporation  for  dam- 
ages caused  by  unauthorized  acts  rests  upon 
the  common-law  rule,  which  renders  every 
agent  liable  who  violates  his  authority,  to 
the  damage  of  his  principal.  A  statutory 
prohibition  is  material  under  these  circum- 
stances merely  as  indicating  an  express  re- 
striction placed  upon  the  powers  delegated 
to  the  directors  when  the  corporation  was 
formed ;  Briggs  v.  Spaulding,  141  U.  S.  132, 
11  Sup.  Ct.  924,  35  L.  Ed.  662;  Hicks  v. 
Steel,  142  Mich.  292,  105  N.  W.  767,  4  L.  R. 
A.  (N.  S.)  279,  where  the  liability  of  a  bank 
director  for  inducing  the  bank  to  extend 
credit  to  an  individual  beyond  the  statutory 
limit  was  denied,  though  he  made  false  rep- 
resentations as  to  notes  offered  for  discount, 
on  proof  that  he  acted  at  the  time  as  agent 
for  the  borrower,  and  not  as  a  director. 

Directors  of  a  national  bank,  who  merely 
negligently  participated  in  or  assented  to 
false  representations  as  to  the  bank's  condi- 
tion contained  in  its  official  report  to  the 
comptroller  of  the  currency,  under  R.   S.  § 


5211,  cannot  be  held  civily  liable  to  one  de- 
ceived by  such  report,  since  the  exclusive 
test  of  such  liability  is  under  R.  S.  §  5L!39, 
which  makes  a  knowing  violation  of  the 
national  bank  act  a  prerequisite  to  such  lia- 
bility ;  Yates  v.  Bank,  206  U.  S.  158,  27  Sup. 
Ct.  638,  51  L.  Ed.  1002,  where  it  was  held 
that  this  excludes  common-law  liability,  and 
that  a  scienter  must  be  proved  in  order  to 
sustain  an  action;  id.;  to  the  same  effect, 
State  v.  Allison,  155  Mo.  332,  56  S.  W.  467; 
Cowley  v.  Smyth,  46  N.  J.  L.  380,  50  Am. 
Rep.  432.  It  has  been  held  that  a  director 
is  an  insurer  of  the  truth  of  his  report; 
Gerner  v.  Mosher,  5S  Neb.  135,  78  N.  W.  384, 
46  L.  R.  A.  244.  In  Houston  v.  Thornton, 
122  N.  C.  365,  29  S.  E.  827,  65  Am.  St.  Rep. 
699,  bank  directors  were  held  liable  to  one 
who  purchased  bank  stock  relying  upon  a 
published  statement  of  the  condition  of  the 
bank  which  was  false. 

The  publication  of  an  advertisement  in  a 
newspaper  by  savings  bank  directors  that 
directors  and  stockholders  are  personally 
responsible  for  its  debts  does  not  constitute 
a  contract  with  the  depositors,  but,  if  inten- 
tionally false,  affords  the  basis  of  an  action 
for  deceit;  Westervelt  v.  Demarest,  46  N. 
J.  L.  37,  50  Am.  Rep.  400. 

Directors  of  a  corporation,  who  falsely 
represent  its  condition  to  a  stockholder, 
knowing  that  he  seeks  information  to  guide 
his  decision  as  to  selling  his  stock,  are  lia- 
ble for  the  damages  sustained  by  him  on  ac- 
count of  their  misrepresentations,  although 
they  were  not  made  for  the  purpose  of  induc- 
ing a  sale;  Rothmiller  v.  Stein,  143  N.  Y. 
581,  38  N.  E.  718,  26  L.  R.  A.  148.  An  ac- 
tion for  deceit  will  lie  against  a  director  of 
a  corporation,  banking  or  otherwise  (there 
is  no  difference),,  who  bas  made  false  and 
fraudulent  representations  as  to  its  condi- 
tion, whereby  others  have  been  misled  and 
damaged.  Such  representations  need  not  be 
personally  made,  but  may  consist  of  volun- 
tary reports  or  prospectuses  which  are  false 
and  are  fraudulently  published;  Jones  v.  Wil- 
liams, 139  Mo.  1,  39  S.  W.  486,  40  S.  W.  353, 
37  L.  R.  A.  682,  61  Am.  St.  Rep.  436.  Mora- 
wetz, Priv.  Corp.  (2d  ed.)  §  573. 

Where  a  bank  certified  under  oath  to  the 
insurance  commissioner  that  an  insurance 
company  seeking  a  license  had  a  certain  de- 
posit, which  was  false,  it  was  held  that  one 
who  bought  shares  in  such  company  in 
reliance  upon  such  certificate,  could  not  re- 
cover against  the  bank;  Hindman  v.  Bank, 
112  Fed.  931,  50  C.  C.  A.  623,  57  L.  R.  A. 
108 ;  nor  will  an  action  for  deceit  lie  upon  a 
statement  made  for  the  mere  purpose  of  ob- 
taining a  charter;  Webb  v.  Rockefeller,  195 
Mo.  57,  93  S.  W.  778,  6  L.  R.  A.  (N.  S.)  872. 

Mere  matters  of  opinion  as  to  the  prospect 
of  future  profits  cannot  be  misrepresenta- 
tions ;'  Robertson  v.  Parks,  76  Md.  118,  24 
Atl.  411;  and  where  an  officer  of  a  corpora- 
tion purchases  stock  from  another  officer  by 


DIRECTORS 


875 


DIM MOTORS 


inducing  the  latter  to  believe  the  value  of 
the  shares  would  decrease,  he  cannot  be  held 
liable  for  deceit  when  the  stock  in  fact  was 
resold  at  a  profit;  Boulden  v.  Stilwell,  l<>n 
Md.  543,  GO  Atl.  COO,  1  L.  R.  A.  (N.  S.)  258. 
Where  an  officer  of  a  corporation  procured 
a  transfer  of  stock  to  himself  by  statin-' 
that  it  was  worthless,  when  it  was  in  fact 
valuable,  it  was  held  not  a  breach  of  any 
fiduciary  relation  and  not  a  ground  foravoid- 
Ing  a  sale;  Krumbhaar  v.  Griffiths,  151  Pa. 
223,  25  Atl.  i;i,  denying  the  existence  of  any 
confidential  or  fiduciary  relation  betw< 

r  of  a  corporation  and  a  person  from 
whom  such  officer  purchases  stock.  C 
vendor  is  as  sound  a  rule  of  law, 
emptor,  though  less  frequently  invoked  ;  Boul- 
den v.  Stilwell,  100  Md.  543,  60  Atl.  609,  1  L. 
R.  A.  (N.  S.)  258;  and  where  a  director  bought 
stock  from  a  stockholder  without  disclosing 
facts  known  to  him  as  director  which,  if 
known,  would  enhance  its  market  value,  it 
was  held  that  the  sale  would  not  be  set  aside: 
O'Neile  v.  Ternes,  32  Wash.  52S,  73  Pac.  692; 
see  svpra. 

A  director  may  purchase  unmatured  ob- 
ligations of  the  corporation  at  a  discount, 
and  enforce  them  at  par,  if  the  corporation 
has  not  a  sinking  fund  for  the  same  pur- 
pose; Glenwood  Mfg.  Co.  v.  Syme,  100  Wis. 
355,  85  N.  W.  432;  St.  Louis,  Ft.  S.  &  W.  R. 
Co.  v.  Chenault,  36  Kan.  51,  12  Pac.  303; 
Marshall  v.  Carson,  3S  N.  J.  Eq.  250,  4S  Am. 
Rep.  319.  When  he  forecloses  a  mortgage 
on  corporate  property,  he  has  a  right  to  pur- 
chase; Lucas  v.  Friant.  Ill  Mich.  426.  69  N. 
W.  735;  and  it  is  held  he  may  buy  corporate 
property  at  an  execution  sale  on  a  judgment 
held  by  him;  Marr  v.  Marr,  72  N.  J.  Eq.  TUT, 
66  Atl.  1S2;  but  see  Sebring  v.  Association, 
2  Pa.  Dist.  Rep.  629,  where  it  is  held  the 
director  of  a  corporation  cannot  buy  cor- 
porate property  at  a  judicial  sale,  lie  may 
bid  on  the  foreclosure  sale  of  corporate  prop- 
erty;  McKittrick  v.  Ry.  Co.,  152  U.  S.  473, 
14  Sup.  Ct.  661,  3S  L.  Ed.  51S. 

The  president  and  general  manager  of  a 
corporation  were  held  personally  liable  for 
damages  caused  to  a  riparian  proprietor 
from  the  long  continued  discharge  of  muddy 
water  into  a  stream  from  ore  washers  op- 
erated by  the  company  with  their  sanction. 
they  having  had  knowledge  of  the  damage 
caused  thereby;  Nunnelly  v.  Irou  Co.,  W 
Tenn.  397,  29  S.  W.  3(51,  28  L.  R.  A.  421. 
The  president  of  a  corporation,  who  was  also 
a  director,  was  held  personally  liable  for  the 
wrongful  use  by  his  company  of  a  toll  bridge, 
which  diverted  business  from  another  bridge; 
Chenango  Bridge  Co.  v.  Paige,  83  N.  Y.  lis. 
38  Am.  Rep.  407.  The  president  of  an  irri- 
gation company  was  held  liable  for  damage 
to  land  caused  by  ditches,  which  he,  as  presi- 
dent, had  ordered  to  be  dug  across  another's 
land;  Bates  v.  Van  Pelt,  1  Tex.  Civ.  App. 
1S5,  20  S.  W.  949.  In  some  cases  an  action 
has    been    sustained    against    officers    of    a 


company,  together  with  the  corporation  itself, 
for  infringement  of  a  i >;. 
Car-Bn  Co.  v.  Mi  53 1 ; 

and  an  Injn  ment  of  a 

patent  Blatchf.   91, 

Fed.  Cas.  No.  5,581;  Wire- 

Co.   v.    Mail .  d  w  ire   Co.,  8t 
boone  Barnet  Manufg  Co.  v.  : 
Med.   582,   but  the   later  hold 

other- 

In  the  absence  of  a  provision  of 
ter  or  of  a  special  contract,  a  dir< 
entitle, 1   tn   ■  ition;  Ogden   v.   Murray. 

39  X.  V.  202;  Grfdley  v.  Ry.  Co.,  71   111 

Citizens'   Xaf.    Man);    v.    Elliott,    55    la.   104,    7 

x.  \v.  -iTo.  :::>  Am.  Bep.  167;  and  be  cannot 
recover  therefor  even  where  a  resolution  i" 

compensate   him  has  l a   passed   after  the 

services     were     rendered;     Accommodation 
Loan  &  Saving  Fund  Ass'n  v  "■'■■  29 

Pa.  534 ;  Kilpatrick  v.  Bridge  O"..  49  Ma.  lis. 

B8  Am.  Dec.  197  J  Manx  Merry  Crave! 
Co.  v.  Branegan,  40  End.  361;  New  York  k 
N.  II.  M.  Co.  v.  Ketchum,  'J7  Conn.  170;  un- 
less the  services  were  outside  of  the  line  of 
his  duty  as  an  officer,  as  obtaining  a  right 
of  way,  soliciting  subscriptions,  etc.;  Lafay- 
ette, B.  &  M.  My.  Co.  v.  Cheeney,  87  111.  117: 
at  v.  Granite  Co.,  ::  25,  •-'■"■  N.  v. 

Sii")'.  SS6;  Ten  Eyck  v.  R.  Cot,  7!  Mich.  226, 
41  X.  W.  905,  3  M.  M.  A.  378,  16  Am.  S; 
633.      But   it    has   been  held  that,    when   no 
salary    is    prescribed,    one   appoil  I 
executive   office,   like  that   of   cashier,    is   en- 
titled   to   reasonable    compensation    for    his 
services,  and   that   the  directors   have  power 
to   fix  the  salary  after  the  expiration  of  the 
term    of   office,    and    this,    though    such    ap- 
pointee is  also  a  director,  and  continues 
such    while    holding   the    independent    office; 
20  Fed.  1S3,   note. 

There  is  no  implied  promise  to  pay  such 
an  officer  either  for  regular  or  extra  set 
to  subject  the  corporation  to  liability,  it  must 
be  shown  that  the  services  were  rendered 
under  such  circumstances  as  to  raise  a  fair 
presumption  that  the  parties  intended  and 
understood  they  were  to  be  paid  for;  Mew 
v.  Bank,  130  Mass.  391,  followed  in  Fitz- 
gerald  &  M.  Const.  Co.  v.  Fitzgerald,  137  M. 
s.  98,  U  sup.  ct.  36,  "l  L.  Ed.  608. 
See  Pierce,  Railr.  31,  with  c 
To  constitute  a  Legal  board  of  din 
they  must  meet  at  a  time  when  and  a  place 
where  every  other  director  has  the  opportu- 
nity of  attending;  and  there  must  be  a  quo- 
rum; Percy  v.  Millaudon,  .".  Ma.  574. 
President,  etc.,  of  Northampton  Bank  v. 
.,.  ii  Mass.  288;  Eughes  v.  Bank,  5 
Litt.  (Ky.'i  45;  Kidgway  v.  Bank,  V2  s.  &  M. 
(Pa.)  256,  14  Am.  Dec  681  :  Minor  v.  Bank,  1 
Pet.  (F.  S.)  -If.,  7  L.  M.l.  17.  The  fact  that 
notice  of  a  special  meeting  of  the  board  was 
not  given  as  provided  by  the  by-laws  of  a 
corporation  is  immaterial,  if  all  the  members 
of  the  board  were  in  facl  present  and  par- 
ticipated   iu    the    proceedings;    Minneapolis 


DIRECTORS 


S7G 


DISAFFIRMANCE 


Times  Co.  v.  Nimocks,  53  Minn.  381,  55  N. 
W.  546.  See  Taylor  County  Court  v.  R.  Co., 
35  Fed.  161. 

They  cannot  separately  make  a  contract 
which  will  bind  the  corporation ;  Limer  v. 
Traders  Co.,  44  W.  Va.  175,  28  S.  E.  730; 
Peirce  v.  Building  Co.,  94  Me.  406,  47  Atl. 
914. 

Action  of  directors  in  the  corporate  name, 
in  bad  faith,  and  detrimental  to  its  inter- 
est, is,  with  respect  to  them,  the  act  of  the 
corporation  in  name  only;  Pennsylvania  Su- 
gar Refining  Co.  v.  Refining  Co.,  166  Fed. 
254,  92  C.  C.  A.  318. 

The  directors  of  a  company  which  declares 
dividends,  thereby  impairing  its  capital,  are 
liable  therefor  to  the  company,  though  ig- 
norant of  its  condition  as  to  which  they  are 
bound  to  inform  themselves ;  Cornell  v.  Sed- 
dinger,  237  Pa.  3S9,  85  Atl.  446. 

A  director  is  entitled  to  access  to  all  the 
corporate  books;  Lawton  v.  Bedell  (N.  J.) 
71  Atl.  490. 

Where  directors  are  required  to  be  stock- 
holders, "qualification"  shares  may  be  trans- 
ferred for  that  purpose;  this  suffices  if  the 
director  holds  them  during  his  term,  but  not 
if  he  returns  them  to  the  owner  with  a  pow- 
er of  attorney  for  transfer;  In  re  Ringler  & 
Co.,  204  N.  Y.  30,  97  N.  E.  593,  Ann.  Cas. 
1913C,  1036. 

DIRECTORY  STATUTE.     See  Statute. 

DIRIMANT  IMPEDIMENTS.  Those  bars 
which  annul  a  consummated  marriage. 

DISABILITY.  The  want  of  legal  capacity. 
"Incapacity  to  do  a  legal  act."  It  would 
include  the  resignation  of  a  judge  before 
signing  a  bill  of  exceptions;  Mclntyre  v. 
Modern  Woodmen  of  America,  200  Fed.  1, 
121  C.  C.  A.  1.  See  Abatement;  Devise; 
Deed;  Infancy;  Insanitt;  Limitation; 
Marriage;  Parties. 

DISABLING  STATUTES  (also  called  the 
Restraining  Statutes).  The  acts  of  1  Eliz. 
c  19,  13  Eliz.  c.  10,  14  Eliz.  cc.  11,  14,  18 
Eliz.  c.  11,  and  43  Eliz.  c.  29,  by  which  the 
power  of  ecclesiastical  or  eleemosynary  cor- 
porations to  lease  their  lands  was  restricted. 
2  Bla.  Com.  319,  321 ;  Co.  Litt.  44  a;  2  Steph. 
Com.  735. 

DISAFFIRMANCE.  The  act  by  which  a 
person  who  has  entered  into  a  voidable  con- 
tract, as,  for  example,  an  infant,  disagrees 
to  such  contract  and  declares  he  will. not 
abide  by  it. 

Disaffirmance  is  expressed  or  implied: — 
the  former,  when  the  declaration  that  the 
party  will  not  abide  by  the  contract  is  made 
in  terms ;  the  latter,  when  he  does  an  act 
which  plainly  manifests  his  determination 
not  to  abide  by  it:  as,  where  an  infant  made 
a  deed  for  his  land,  and  on  coming  of  age 
he  made  a  deed  for  the  same  land  to  an- 
other; 2  D.  &  B.  320;  Tucker  v.  Moreland, 
10  Pet.  (U.  S.)  58,  9  L.  Ed.  345;  Inhabitants 


of   Worcester   v.   Eaton,   13  Mass.  371,   375, 
7  Am.  Dec.  155. 

DISAFFOREST.  To  restore  to  their  for- 
mer condition  lands  wbich  have  been  turned 
into  forests.  To  remove  from  the  operation 
of  the  forest  laws.    2  Bla.  Com.  416. 

DISAVOW.  To  deny  the  authority  by 
which  an  agent  pretends  to  have  acted,  as 
when  he  has  exceeded  the  bounds  of  his  au- 
thority. 

It  is  the  duty  of  the  principal  to  fulfil  the 
contracts  which  have  been  entered  into  by 
his  authorized  agent;  and  when  an  agent 
has  exceeded  his  authority  he  ought  prompt- 
ly to  disavow  such  act,  so  that  the  other 
party  may  have  his  remedy  against  the 
agent.     See  Agent;  Principal. 

DISBAR.  In  England,  to  expel  a  barrister 
from  the  bar.  Wharton.  This  is  in  England 
a  colloquial  term.  The  particular  Inn  of 
Court,  in  a  case  requiring  its  action,  "va- 
cates the  call"  to  their  own  Inn.  The  judges 
give  and  take  away  the  "right  of  audience." 
See  Council  of  the  Bar,  General  ;  and  Bar- 
rister, as  to  disbarring  barristers ;  Law  So- 
ciety, as  to  the  practice  of  striking  solic- 
itors from  the  rolls  in  England. 

In  the  United  States,  to  deprive  a  person 
of  the  right  to  practise  as  an  attorney  at 
law. 

Courts  have  jurisdiction  and  power  upon 
their  own  motion  without  formal  complaint 
or  petition,  in  a  proper  case,  to  strike  the 
name  of  an  attorney  from  the  roll,  provided 
he  has  had  reasonable  notice  and  an  oppor- 
tunity to  be  heard;  Ex  parte  Steinman,  95 
Pa.  220,  40  Am.  Rep.  637;  In  re  Orton,  54 
Wis.  379,  11  N.  W.  584;  In  re  Wall,  107 
U.  S.  265,  2  Sup.  Ct.  569,  27  L.  Ed.  552. 

A  lawyer  may  be  disbarred  only  for  mis- 
demeanor in  his  professional  capacity,  or 
affecting  his  professional  character,  but  not 
for  a  criminal  offence  without  formal  indict- 
ment, trial  and  conviction.  His  office  as  at- 
torney is  property  of  which  he  cannot  be 
deprived  except  by  judgment  of  his  peers 
and  by  the  law  of  the  land ;  Ex  parte  Stein- 
man, 95  Pa.  220,  40  Am.  Rep.  637.  But 
while  this  is  true  as  a  general  rule,  it  is 
not  an  inflexible  one,  and  there  may  be  cas- 
es where  it  is  proper  for  the  court  to  pro- 
ceed without  such  previous  conviction;  In 
re  Wall,  107  U.  S.  265,  2  Sup.  Ct.  569,  27 
L.  Ed.  552.  In  this  case  the  proof  was 
clear,  there  was  a  failure  to  offer  any  coun- 
ter proof,  and  an  evasive  denial  of  the 
charge  which  was  that  the  attorney  was  en- 
gaged in  a  tumultuous  and  riotous  gathering 
for  the  purpose  of  lynching. 

Courts  have  no  inherent  power  to  disbar 
an  attorney  for  conviction  of  crime  in  a  for- 
eign jurisdiction,  where  the  legislature  has 
expressly  provided  what  convictions  shall 
result  in  disbarment  and  has  not  included 
those  in  foreign  jurisdictions;   In  re  Ebbs. 


DISBAR 


877 


DISBAR 


150  N.  C.  44,  G3  S.  E.  190,  19  L.  R.  A.  (N. 
S.)  892,  17  Arm.  Cas.  592.  In  the  absence  of 
restrictive  legislation,  courts  have  an  in- 
herent power  to  strike  from  their  rolls 
names  of  attorneys  who  are  found,  by  rea- 
son of  their  conduct,  unfit  and  unworthy; 
State  v.  Klrke,  12  Fla.  278,  95  Am.  Dec  314. 
A  judgment  of  disbarment  by  a  divided 
court  in  another  state,  no  order  of  disbar- 
ment being  made,  pending  on  appeal  to  a 
higher  court,  is  insufficient  as  a  ground  for 
a  revocation  of  an  attorney's  license;  In  re 
Baum,  10   Mont.  223,   25   l'ac.  99. 

An  attorney   may  be  disbarred  for  charg- 
ing a  judge  with  corrupt  practices;  Matter 
of  Murray.  58  linn  604,  11  N".   V.   Supp 
In  re  Robinson,  is  Wash.   153,  92   Pac.  929, 
15  L.   R.   A.    (N.    S.)    525,   15   Ann.   Oaa   415 
(notwithstanding     the     withdrawal     of     the 
charge  and  an  apology,  but  in  view  of  that 
the  attorney  was  merely  suspended   f< 
months);  discussing  a  court's  decision  in  a 
disrespectful  way ;  In  re  Breen,  30  Nev.  1G4, 
9::  l'ac.  1004;   siate  Board  of  Law   Exam- 
iners v.  Hart,  104  Minn.  88,  116  N.  W.  212, 
17   L.  R.  A.  (N.   S.)   585,   15  Ann.  Cas.   197; 
embodying  in  bis  brief  in  the  appellate  court 
"contemptuous,    unbearable    and    unwarrant- 
ed  language"  designed  to   influence  a   deci- 
sion  of   the   court   by   base   appeals   to   the 
supposed  timidity  of  the  justices ;  In  re  Phil- 
brook,  105  Gal.  471,  38  Pac.  511,  SS4,  45  Am.. 
St.    Rep.   59   (where   the   attorney    was   sus- 
pended   for    three    years)  ;    libelous   charges 
against  a  judge ;  U,  S.  v.  Green,  85  Fed.  857 ; 
unwarrantably  charging  a  judge  and  another 
attorney    with    bribery    and    unprofessional 
conduct;   People   v.   Green,   9   Colo.   506,   13 
Pac.   514;    In  re  Maines,   121    Mich.  003,  SO 
N.  W.  714;  or  on  conviction  and  fine  in  the 
United    States    court    for    unlawful    use    of 
the  mails;   People  v.  Weeber,  26  Colo.   220, 
57  Pac.  1079;  or  on  conviction  of  felony  or 
misdemeanor  involving  moral  turpitude;   In 
re  Kirby,  10  S.  D.  414,  73  N.  W.  908 ;  or  for 
fighting   a   duel    and   killing   his   antagonist, 
and   being   indicted   for   murder  in   another 
state;  Smith  v.  State,  1  Yerg.  (Tenn.)  228; 
or    for    procuring    admission    or    license    to 
practice   law    fraudulently;    People    v.    Gil- 
more,  214  111.  5G9.  73  N.  E.  737,  69  L.  R.  A. 
701;    People   v.    Campbell,    20    Cat    481,    58 
Pac.  591;  State  Board  of  Law  Examiners  v. 
Williams,   116   Tenn.   51,   92    S.    W.    521;    for 
gross    disrespect    to    the    court;    Sharon    v. 
Hill,  24  Fed.  726;  or  for  any  breach  of  fidel- 
ity  to  the  court;    In   re  Eldridge,   82   X.   Y. 
161,  37  Am.  Rep.  558;  Strout  v.  Proctor,  71 
Me.  288;  perjury  or  subornation  of  perjury; 
10  M.  &  W.  28;  violation  of  the  confidence 
of  a  client;   Strout  v.  Proctor,  71  Me.   288. 
So  also  for  an  advertisement  as  a  divorce 
Lawyer,  signed  or  unsigned;  People  v.  Good- 
rich, 79   111.  148;    Smith   v.   Teoplo,  32  Colo. 
251,   75  Pac.   914;    People  v.  Smith,  200  111. 
442.  66  N.   E.  27,  93  Am.   St.  Rep.  206;  em- 
ploying runners  to  hunt  up  cases  and  charg- 


ing   fictitiou  Appeal    of    Mairos. 

189   Pa.   99,  41  Ail.  ag  bookmaker 

at   races   in   England;  40  Am.   L.    Rev.   101, 
cited   from   40  L.   Jour.    -  earing  for 

both   parties   in   actions    involving   the   same 
using  Legal  pi  Ln  an  abusive  and 

oppressive  manner,  and  aiding  and  con 
in:,'  bribery  of  a  city  officer;  ln  re  O'Connell, 
171   Masa  253,  53  N.   E.   L001,  54  X.  E. 
niching    money    from   a    woman 
pardon   for   her   husband    under   prom 
return  half  of  it  if  be  dl 
after   failure  appropriating    it   to   bis  own 
use;    In    re   O'Sullivan,    122    App.    1'iv. 
107  X.  V.  Supp.  462;  bringing  a  dl 
without   authority   and  acting  in   fraudulent 
collusion    with    the   husband  to   procure 
divorce  without  knowledge  <>f  the  wife;  Dil- 
lon v.  State,  6  Tex.  55.     For  any  unpi 
sional  conduct  disbarment  or  suspension  may 
be  Inflicted;   In  re  smith.  7.-:  Kan.  7i 
Pac.  584;  State  Board  of  Examiners  In  Law 
v.   Reynolds,  OS  Minn.  44,   107   X.    w.  144; 
State  v.   Harber,   129  Mo.   271.  31   S.   \Y.  889. 
■  omplainl  must  affect  the  official  char- 
acter of  the  attorney;   Wooldridge  v.  I 
6S  111.  157;  Fx  parte  Steinman,  95  Pa.  220, 
40  Am.  Rep.  637.     The  offence  need  not  be 
an    indictable   one;    but    its   char:. 
be  such  as  to  show  the  attorney  unlit   to  be 
trusted  with  the  powers  of  the  pr 
30  L.  J.  (Q.  B.)  32;  Baker  v.  Com.,  10  I 
(Ky.)  502;  U.  S.  v.  Porter,  2  Cra.  C.  C 
Fed.  Cas.  No.  10.072;  In  re  Austin,  5  Rawle 
(Pa.)  191,  28  Am.  Dec.  657.    But  Ignorance 
of  the  law   is   not  a   cause  for  disbarment: 
Bryant's    Case.    24    X.    II.    HO. 

On  being  convicted  of  felony  an  attorney 
loses  his  right  to  practise  in  court  without 
an  order  removing  him;  In  re  Niles,  5  Daly 
(N.  Y.)  465.  Neither  pardon  for  felon;  nor 
a  satisfactory  settlement  with  the  injured 
party  affects  the  court's  power  to  disbar; 
Sanborn  v.  Kimball.  04  Me.  140;  In  n 
vies,  9.".  Pa.  116,  o9  Am.  Rep.  729;  Weeks. 
Attys.  §  S3. 

Disbarment  is  not  by  way  of  punishment. 
but  in  the  exercise  by  the  court  of  its  dis- 
cretion to  determine  whether  one  admitted 
as  an  attorney  is  a  proper  person  to  be 
continued  on  the  roll;  In  re  Adriaans,  17 
App.  D.  0.  89;  in  re  Palmer,  15  Ohio  Clr. 
Ct.  94;  or  for  the  protection  of  the  court 
the  proper  administration  of  justice,  the  pub- 
lic good  and  the  protection  of  clients;  Ea 
parte  Finn,  32  Or.  519,  52  Pac.  7.".';.  67  Am. 
St.  Rep.  550;  it  leaves  to  the  attorney  his 
full  rights  of  citizenship;  In  re  Thatcher. 
S3  Ohio  St.  246,  93  X.  E.  895,  Ann.  Cas. 
1912A,  810. 

The  enumeration  in  a  statute  of  causes  of 
disbarment  or  suspension  docs  not  limit  the 
common-law  power  of  the  court  in  that  re- 
and  the  penalty  may  be  inflicted  for 
other  than  statutory  grounds;  In  re  Smith, 
7::  Kan.  743,  85  Pac  584;  Bar  Ass'n  of  Bos- 
ton  v.  Greenhood,   16S   Mass.   100,  46  N.   E. 


DISBAR 


878 


DISCHARGE 


56S;  State  v.  Gebliardt,  87  Mo.  App.  542; 
contra,  In  re  Collins,  147  Cal.  8,  SI  Pac. 
220.  The  power  to  disbar  is  not  arbitrary 
and  despotic,  to  be  exercised  at  the  pleasure 
of  the  court  or  from  passion,  prejudice,  or 
personal  hostility,  but  in  a  sound  judicial 
discretion;  State  v.  Stiles,  48  W.  Va.  425,  37 
S.  E.  620.  The  manner  of  proceeding  is  said 
to  be  largely  in  the  discretion  of  the  court, 
so  long  as  it  is  exercised  without  oppres- 
sion and  injustice,  and  to  be  used  reasonably 
with  moderation  and  caution;  it  is  judicial 
in  its  character,  but  the  inquiry  is  not  the 
trial  of  an  action  or  suit,  but  an  investiga- 
tion by  the  court  into  the  conduct  of  one  of 
its  own  officers  in  the  exercise  of  the  discip- 
linary jurisdiction  which  it  has  over  them ; 
In  re  Durant,  80  Conn.  140,  67  Atl.  497,  10 
Ann.  Cas.  539. 

A  proceeding  for  disbarment  of  an  attor- 
ney is  civil  in  its  character  and  not  crim- 
inal; Keithley  v.  Stevens,  238  111.  199,  87 
N.  E.  375,  128  Am.  St.  Rep.  120;  State  v. 
Fourchy,  106  La.  743,  31  South.  325;  In  re 
Burnette,  73  Kan.  609,  85  Pac.  575;  In  re 
Crum,  7  N.  D.  316,  75  N.  W.  257 ;  In  re  Ebbs, 
150  N.  C.  44,  63  S.  E.  190,  19  L.  R.  A.  (N. 
S.)  892,  17  Ann.  Cas.  592;  Garfield  v.  U.  S., 
32  App.  D.  C.  109;  In  re  Biggers,  24  Okl. 
842,  104  Pac.  10S3,  25  L.  R.  A.  (N.  S.)  622 ; 
In  re  Spencer,  137  App.  Div.  330,  122  N.  Y. 
Supp.  190;  Wernimont  v.  State,  101  Ark. 
210,  142  S.  W.  194,  Ann.  Cas.  1913D,  1156; 
but  in  one  case  it  was  said  that  such  a  pro- 
ceeding, while  not  strictly  criminal,  is  quasi 
criminal ;  State  v.  Quarles,  158  Ala.  54,  48 
South.  499. 

Proceedings  at  common  law  for  disbar- 
ment or  suspension  should  be  in  the  name 
of  the  state,  but  under  a  statute  directing 
suspension  for  not  paying  over  money  col- 
lected, no  method  of  proceeding  being  pre- 
scribed, the  client  for  whom  the  money  was 
collected  is  the  proper  party ;  Wilson  v.  Pop- 
ham,  91  Ky.  327,  15  S.  W.  859. 

A  disbarred  attorney's  election  as  attor- 
ney-general is  void ;  Danforth  v.  Egan,  23 
S.  D.  43,  119  N.  W.  1021,  139  Am.  St.  Rep. 
1030,  20  Ann.  Cas.  418. 

See  Attorney. 

DISBURSEMENT.  Money  paid  out  by  an 
executor,  guardian,  or  trustee,  on  account 
of  the  fund  in  his  hands.  The  necessary 
expenditures  incurred  in  an  action,  and 
which,  under  the  codes  of  procedure  of 
some  of  the  states,  are  included  in  the  costs, 
are  also  so  called.  But  see  Wright's  Adm'rs 
v.  Wilkerson,  41  Ala.  267;  Case  v.  Price,  9 
Abb.  Pr.  (N.  Y.)  111. 

DISCEPTATIO  CAUS/E  (Eat).  In  Ro- 
man Law.  The  argument  of  a  cause  by  the 
counsel  on  both  sides.     Calvinus,  Lex. 

•DISCHARGE.  The  act  by  which  a  person 
in  confinement  under  some  legal  process,  or 
held  on  an  accusation  of  some  crime  or  mis- 


demeanor, is  set  at  liberty ;  the  writing  con- 
tinuing the  order  for  his  being  so  set  at  lib- 
erty is  also  called  a  discharge. 

The  discharge  of  a  defendant,  in  prison 
under  a  ca.  sa.,  when  made  by  the  plaintiff, 
has  the  operation  of  satisfying  the  debt,  the 
plaintiff  having  no  other  remedy;  4  Term 
526. 

But  when  the  discharge  is  in  consequence 
of  the  insolvent  laws,  or  the  defendant  dies 
in  prison,  the  debt  is  not  satisfied.  In  the 
first  case  the  plaintiff  has  a  remedy  against 
the  property  of  the  defendant  acquired  after 
his  discharge,  and  in  the  last  case  against 
the  executors  or  administrators  of  the  debt- 
or. Bacon,  Abr.  Execution,  D;  Bingham, 
Execution  266. 

The  word  has  still  other  uses.  Thus,  we 
speak  of  the  discharge  of  a  surety,  whereby 
be  is  released  from  his  liability;  of  a  debt; 
of  a  contract;  of  lands,-  or  money  in  the 
funds,  from  an  incumbrance ;  of  an  order 
of  a  court  of  justice,  when  such  order  is 
vacated ;  2  Steph.  Com.  107,  161.  We  also 
speak  of  a  discharge  in  bankruptcy ;  Boyn- 
ton  v.  Ball,  121  U.  S.  457,  7.  Sup.  Ct  981,  30 
L.  Ed.  985;  Scott  v.  Ellery,  142  IT.  S.  381, 
12  Sup.  Ct.  233,  35  L.  Ed.  1050;  Fowle  v. 
Park,  48  Fed.  789. 

DISCHARGE  OF  CONTRACT.  A  con- 
tract may  be  discharged  in  the  following 
ways  :  Performance  according  to  its  terms ; 
a  breach  of  such  a  nature  as  to  justify  the 
innocent  party  in  treating  the  contract  as 
rescinded  or  as  giving  rise  to  a  right  of  ac- 
tion for  breach  of  the  entire  contract ;  rescis- 
sion of  a  voidable  contract,  at  the  will  of 
one  party,  as  for  fraud,  mistake,  duress ;  re- 
lease ;  rescission  by  parol  agreement ;  accord 
and  satisfaction ;  cancellation  and  surrender ; 
alteration  (of  a  written  contract)  ;  merger 
(in  judgment) ;  arbitration  and  award ;  im- 
possibility ;  bankruptcy ;  statutes  of  limita- 
tion, though  the  latter  generally  only  bars 
the  remedy.  A  right  of  action  on  a  contract 
may  be  discharged  in  any  of  these  ways  ex- 
cept where  a  breach  justifies  the  innocent 
party  in  treating  the  contract  as  rescinded, 
or  as  giving  rise  to  a  right  of  action,  or  in 
the  case  of  impossibility.  Williston's  Wald's 
Pollock  on  Contracts.  An  executed  contract 
cannot  be  discharged  except  by  release  un- 
der seal  or  by  performance,  except  that  a 
promissory  note  or  a  bill  of  exchange  stands 
on  a  different  footing;  6  Exch.  851,  per 
Parke,  B. ;  but  only,  in  the  United  States, 
when  the  note  or  bill  has  been  surrendered; 
Bragg  v.  Danielson,  141  Mass.  195,  4  N.  E. 
622 ;  it  is  said  here  to  have  become  extin- 
guished;  Slade  v.  Mutrie,  156  Mass.  19,  30 
N.  E.  10S. 

Discharge  may  be  by  payment  under  the 
contract,  or,  after  breach,  by  an  agreement 
which  is  effectual  as  an  accord  and  satisfac- 
tion {q.  v.).  Tender  of  performance,  such  as 
by  delivery  of  goods,  discharges  the  party; 


DISCHARGE  OF  CONTRACT 


879 


DISCHARCr.   r.F  CONTRACT 


but  tender  of  a  sum  of  money  due  under  the 
contract  does  not  work  a  discbarge;  the 
party  must  stand  ready  and  willing  to  pay 
the  debt,  and.  if  sued,  must  pay  the  money 
into  court.  A  substantial  performance  will 
suffice;  Crouch  v.  Gntmann,  1"!  N.  V.  45, 
31  N.  B.  271,  30  Am.  St.  Rep.  COS,  but  if  the 
deviation  is  not  Blight,  or  Is  willful,  it  is 
otherwise;  Elliott  v.  Caldwell,  43  Minn.  357, 
45  N.  W.  845,  9  L.  R.  A.  52;  and  one  to 
whom  a  sum  of  money  is  tendered  must  not 
be  called  upon  to  make  change;  Anson, 
Contr.  .';I9. 

Discharge  may  be  by  breach,  though  a 
breach,  while  it  always  gives  a  right  of  ac- 
tion, docs  n..t  always  discharge  tlif  contract, 
for  it  may  be  broken  in  whole  or  in  part, 
and  if  the  latter,  the  breach  may  net  be 
important  enough  to  work  a  discharge,  or 
the  other  party  may  not  regard  it  as  a 
breach  but  may  continue  to  carry  out  the 
contract.    See  Breach. 

Where  a  contract  between  A  and  X  is  dis- 
charged by  default  of  X,  A  may  (1)  consider 
himself  exonerated  from  any  further  per- 
formance and  successfully  defend  an  action 
brought  for  non-performance;  (2)  sue  at 
once  upon  the  contract  for  such  damages  as 
he  has  sustained  by  the  breach  without  be- 
ing obliged  to  show  that  such  performance 
has  been  done  or  tendered  by  him:  ».".i  [f 
he  has  done  all  or  a  portion  of  that  which 
he  promised,  so  as  to  have  a  claim  to  a 
money  payment  for  such  performance,  he 
may  treat  such  a  claim  as  due  upon  a  new 
contract  arising  upon  the  promise  which  is 
understood  from  the  acceptance  of  an  exe- 
cuted consideration ;  Anson,  Contr.  352. 
Prof.  Huffcut  in  his  edition  of  Anson's  Contr. 
points  out  that  the  first  two  propositions 
are  illustrated  in  Davison  v.  Von  Lingen, 
113  U.  S.  40,  5  Sup.  Ct.  346,  28  L.  Ed.  885; 
and  that  the  second  is  discussed  in  Lake 
Shore  &  M.  S.  Ry.  Co.  v.  Richards.  L52  HI. 
59.  38  N.  E.  773.  30  L.  R.  A.  33;  also  that 
A  may  elect  and  keep  the  contract  for  both 
parties,  thus  giving  X  a  period  for  repent" 
ance;  Kadish  v.  Young,  108  111.  170,  43  Am. 
Rep.  54S;  but  he  cannot  thereby  increase 
the  damages;  Dillon  v.  Anderson,  43  N.  Y. 
231. 

A  party  may  break  a  contract  by  renounc- 
ing his  liabilities  under  it.  or  by  making  it 
impossible  that  he  should  fulfill  them,  or  by 
failing  totally  or  partially  to  perform  what 
he  has  promised.  As  to  anticipatory  breach- 
es, see  Breach. 

Where  one  party  has.  before  performance 
is  due,  created  an  impossibility  of  perform- 
ance, this  Is  equivalent  to  a  renunciation 
of  the  contract;  Anson,  Contr.  356;  U.  S. 
v.  Peck,  102  U.  S.  64,  26  L.  Ed.  46.  So 
where,  during  performance,  one  party  has 
made  it  impossible  for  the  other  to  perform; 
Western  Union  Telegraph  Co.  v.  Semmes,  7:: 
Md.  9,   20   Atl.   127;    Woodberry  v.   Warner. 


53  Ark.  488,  14  S.  W.  <;?;    Bing.  14;    [' 
2  Q.  B.  70. 

As    to    breaches    of    contracts    containing 
conditional   and    independent  -,    see 

Breach. 

A  contract  may  contain  the  i  of  Its 

own    discharge,    which    may  ^ful- 

filment of  a  condition  precedent,  ' 
cum  nee   of    a    condition  ait,    or    by 

the  exercise  of  an  option   to  determim 
contracl    reserved   to  one  of  the  parti' 
its  terms;    Anson,   Contr.   338.     Of  the 
a  case  in  L.    K.  7  Exch.  7.  is  in  point,  where 
a   horse  was  warranted   to  have  been   I 
with  the  Bicester  hounds  and  if  it  did  not 
answer  to  its  description,  the  buyer  might 
return  it.     It  did   not  answer   to  II 
tion   and   had   never   b<  en  so   hunted.      ' 
that    the   buyer   might    return    it,   though  in- 
jured without  his  fault;    the  sale  vested  the 
property   in  the  buyer  subject  to  a  right  of 
in    a    particular    event;     the    de- 
preciation in  value  must  fall  upon  the  per- 
son in  whom  the  property  revested.     In 
case   the   buyer    may   refuse   to   receive  the 
article  if  he  discovers  that  the  term  is  not 
fulfilled;    Ganson    v.  Madigan,  13  Wis.   67 
or  on  discovery  he  may  return  it;    but  not, 
it   was   held,   if   injured   while   in  his   p 
sion;     Ray   v.    Thompson,    12   Cush.    iMass.i 
281,   59  Am.    Dec.  187.      Instances  of  condi- 
tions  subsequent  are  bonds  defeasible   npon 
a  condition  expressed   therein   and   the  "ex- 
cepted risks"  of  charter  parties. 

If  a  statute  requires  the  contract  to  be  in 
writing,  there  is  authority  for  saying  that  a 
discharge  may  be  by  word  of  mouth  ;  5  B.  ft  A. 
»;<;;  Anson,  Contr.  343;  Wulschner  v.  Ward. 
115  ind.  219,  17  X.  K.  273.  "But  if  the  dis- 
charge be  not  a  simple  rescission,  but  such 
an  implied  discharge  as  arises  from  the 
making  of  a  new  agreement  inconsistent 
with  the  old  one,  then  there  must  be  wri<- 
ing  in  accordance  with  the  reduirements  of 
the  statute:"  Anson,  Contr.  343;  Bill  v. 
Blake,  97  N.  Y.  216;  Burns  v.  Real  Estate 
Co.,  52  .Minn.  31,  53  X.  W.  I'M T;  contra, 
Stearns  v.  Hall,  9  Cush.  (Mass.)  31. 

See  Estoppi  r.. 

DISCHARGE   OF   A   JURY.     See  .TraY. 

DISCLAIMER.  A  disavowal:  a  renuncia- 
tion; as.  for  example,  the  act  by  which  a 
patent  e  renounces  part  of  his  title  of  inven- 
tion. 

Of  Estates.  The  act  by  which  a  party  re- 
fuses to  accept  an  estate  which  has  been 
conveyed  to  him.  Thus,  a  trustee  is  said  to 
disclaim  who  releases  to  his  fellow-tru 
his  estate,  and  relieves  himself  of  the  trust: 
1  Hill.  R,  P.  ■■•.•"•!:  Watson  v.  Watson,  13 
Conn.  83;  Jackson  v.  Richards,  8  Cow.  (N. 
17. 

Of  Tenancy.     The  act  of  a   person  in  pos- 
session, who  denies  holding  the  estate  of  the 
I  who  claims  to  be  the  owner.     2  Nev. 


DISCLAIMER 


880 


DI SCONTINU  ANCE 


&  M.  672.  An  affirmation,  by  pleading  or 
otherwise,  in  a  court  of  record,  that  the  re- 
version is  in  a  stranger.  It  works  a  for- 
feiture of  the  lease  at  common  law;  Co. 
Litt.  251;  1  Cruise,  Dig.  109;  but  not,  it  is 
said,  in  the  United  States;  1  Washb.  R.  P. 
93.  Equity  will  not  aid  a  tenant  in  deny- 
in  his  landlord's  title;  Peyton  v.  Stith,  5 
Pet.   (U.  S.)  486,  8  L.  Ed.  200. 

In  Patent  Law.  A  declaration  in  writing, 
filed  under  the  patent  laws,  by  an  inventor 
whose  claim  as  filed  covers  more  than  that 
of  which  he  was  the  Original  inventor,  re- 
nouncing such  parts  as  he  does  not  claim  to 
hold.     See  Patent. 

In  Pleading.  A  renunciation  by  the  de- 
fendant of  all  claim  to  the  subject  of  the 
demand  made  by  the  plaintiff. 

In  Equity.  It  must,  in  general  be  accom- 
panied by  an  answer ;  Ellsworth  v.  Curtis,  10 
Paige,  Ch.  (N.  Y.)  105;  2  Russ.45S;  2  Y.  &  C. 
546;  Worthington  v.  Lee,  2  Bland,  Ch.  (Md.) 
678;  and  always  when  the  defendant  has 
so  connected  himself  with  the  matter  that 
justice  cannot  be  done  otherwise;  9  Sim. 
102.  It  must  renounce  all  claim  in  any  ca- 
pacity and  to  any  extent;  Bentley  v.  Cow- 
man, 6  G.  &  J.  (Md.)  152.  It  may  be  to  part 
of  a  bill  only,  but  it  must  be  clearly  a  sep- 
arate and  distinct  part  of  the  bill;  Story, 
Eq.  PI.  §  839.  A  disclaimer  may,  in  general, 
be  abandoned,  and  a  claim  put  in  upon  sub- 
sequent discovery  of  a  right;  Cooper,  Eq. 
PI.  310. 

At  Law.  In  real  actions,  a  disclaimer  of 
tenancy  or  estate  is  frequently  added  to  the 
plea  of  non-tenure;  Littleton  §  391;  Porter 
v.  Rummery,  10  Mass.  64.  The  plea  may  be 
either  in  abatement  or  in  bar ;  Prescott  v. 
Hutchinson,  13  Mass.  439 ;  Olney  v.  Adams, 
7  Pick.  (Mass.)  31;  as  to  the  whole  or  any 
part  of  the  demanded  premises;  Stearns, 
Real  Act.  193. 

At  common  law  it  is  not  pleaded  as  a  bar 
to  the  action,  nor  is  it  strictly  a  plea  in 
abatement,  as  it  does  not  give  the  plaintiff 
a  better  writ.  It  contains  no  prayer  for 
judgment,  and  is  not  concluded  with  a  ver- 
ification. It  is  in  effect  an  offer  by  the 
plaintiff  to  yield  to  the  claim  of  the  demand- 
ant and  admit  his  title  to  the  land ;  Stearns, 
Real  Act.  193.  It  cannot,  in  general,  be 
made  by  a  person  incapable  of  conveying 
the  land.  It  is  equivalent  to  a  judgment  in 
favor  of  the  demandant,  except  when  costs 
are  demanded;  Prescott  v.  Hutchinson,  13 
Mass.  439;  in  which  case  there  must  be  a 
replication  by  the  demandant;  Favour  v. 
Sargent  6  Pick.  (Mass.)  5;  no  formal  repli- 
cation is  requisite;  Bratton  v.  Mitchell,  5 
Watts  (Pa.)  70.     See  1  Washb.  R.  P.  93. 

DISCONTINUANCE.        In   Pleading.       The 

chasm  or  interruption  which  occurs  when 
no  answer  is  given  to  some  material  mat- 
ter in  the  preceding  pleading,  and  the  op- 
posite party   neglects  to  take  advantage  of 


such  omission.  See  Com.  Dig.  Pleader,  W.; 
Bac.  Abr.  Pleas,  P.  It  is  distinguished  from 
insufficient  pleading  by  the  fact  that  the 
pleading  does  not  profess  to  answer  all  the 
preceding  pleading  in  a  case  of  discontinu- 
ance; 1  Wins.  Saund.  28,  n.  It  constitutes 
error,  but  may  be  cured  after  verdict,  by 
32  Hen.  VIII.  c.  80,  and  after  judgment  by 
nil  (licit,  confession,  or  non  sum  informatus 
under  4  Anne,  c.  16.  See,  generally,  1  Saund. 
28;  4  Rep.  62  o;  Taft  v.  Transp.  Co.,  56  N. 
H.  414. 

In  Practice.  The  chasm  or  interruption  in 
proceedings  occasioned  by  the  failure  of 
the  plaintiff  to  continue  the  suit  regularly 
from  time  to  time,  as  he  ought;  3  Bla.  Com. 
296;  Germania  Fire  Ins.  Co.  v.  Francis, 
52  Miss.  467,  24  Am.  Rep.  674;  Taft  v. 
Transp.  Co.,  56  N.  H.  416.  The  entry  upon 
record  of  a  discontinuance  has  the  same  ef- 
fect. The  plaintiff  cannot  discontinue  after 
demurrer  joined  and  entered,  or  after  ver- 
dict or  writ  of  inquiry,  without  leave  of 
court;  Cro.  Jac.  35;  1  Lilly,  Abr.  473;  8 
C.  C.  App.  437 ;  but  see  Lowman  v.  West,  7 
Wash.  407,  35  Pac.  130;  although  he  can 
notwithstanding  the  interposition  of  a  coun- 
terclaim ;  Felix  v.  Vanslooten,  17  N.  Y.  Sup. 
844;  and  is  generally  liable  for  costs  when 
he  discontinues,  though  not  in  all  cases. 
Leave  to  discontinue"  will  be  refused  when 
proofs  had  been  taken  and  closed  at  large 
expense  to  defendant,  when  no  other  ground 
is  shown  except  a  desire  to  relitigate  in  a 
new  suit  the  questions  involved ;  American 
Steel  &  Wire  Co.  v.  Mayer  &  Englund  Co., 
121  Fed.  127.  See  Hart  v.  Storey,  1  Johns. 
(N.  Y.)  143;  Ludlow  v.  Hackett,  18  Johns. 
(N.  Y.)  252;  Lackey  v.  McDonald,  1  Cai. 
(N.  Y.)  116;  Thurman  v.  James,  48  Mo.  235; 
Etheridge  v.  Osborn,  12  Wend.  (N.  Y.)  402; 
Com.  Dig.  Pleader  (W  5);  Bac.  Abr.  Plea 
(5  P). 

DISCONTINUANCE    OF    ESTATES.        An 

alienation  made  or  suffered  by  the  tenant 
in  tail,  or  other  tenant  seised  in  autre  droit, 
by  which  the  issue  in  tail,  or  heir,  or  suc- 
cessor, or  those  in  reversion  or  remainder, 
are  driven  to  their  action,  and  cannot  enter. 

The  term  discontinuance  is  used  to  distin- 
guish those  cases  where  the  party  whoso 
freehold  is  ousted  can  restore  it  only  by  ac- 
tion, from  those  in  which  he  may  restore  it 
by  entry;  Co.  Litt.  325  a;  3  Bla.  Com.  171; 
Ad.  Ej.35;    Bac.  Abr. ;    Yiner,  Abr. 

It  was  a  survival  of  the  old  law  which 
rigidly  protected  seizure  even  against  the 
true  owner.    2  Holdsw.  Hist.  E.  L.  496. 

Discontinuances  of  estates,  prior  to  their 
express  abolition,  had  long  become  obsolete, 
and  they  are  now  abolished  by  3  &  4  Will. 
IV.  c.  27,  and  8  &  9  Vict.  c.  106;  Moz.  & 
W.  Die. ;   1  Steph.  Com.  510,  n. 

DISCONTINUOUS  SERVITUDE.  Anease- 
ment  made   up  of  repeated  acts  instead  of 


DISCONTINUOUS  SERVITUDE 


881 


DISC 


one   continuous  act,   such   as  right  of  way. 
drawing  water,  etc.     See  Basement. 

DISCOUNT.  Interest  reserved  from  the 
amount  loaned  at  the  time  of  making  a  loan. 
An  allowance  sometimes  made  for  pi 
payment.  As  a  verb,  it  is  used  to  denote 
the  act  of  giving  money  for  a  bill  of  ex- 
change  or  promissory  note,  deducting  the  in- 
i  Dunkle  v.  Renick,  6  Ohio  St  527; 

Niagara  County  Bank  v.  Baker,  15  Ohio  St. 
87;  Philadelphia  Loan  <'<>.  v.  Towner,  13 
Conn.  249;  state  v.  Savings  Institution,  48 
Mo.  L89;  Fleckner  v.  Bank,  8  Wheat  (1  , 
S.)  338,  5  L.  Ed.  633  ;  Saltmarsh  v.  I 
14  Ala.  G77;  Weckler  v.  Bank,  42  Md.  592, 
20  Am.  Rep.  95. 

Discounting  means  to  take  Interesl  in  ad- 
vance; McLean  v.  Bank,  :;  McLean  597 
Cas.  No.  8,888.  It  is  a  mode  of  loaning  mon- 
ey ;  New  York  Firemen  ins.  Co.  v.  Ely,  2 
Cow.  (N.  Y.)  G78;  Weckler  v.  Bank,  42  Md. 
592,  20  Am.  Rep.  95.  As  to  whether  dis- 
counting includes  buying  and  selling',  the 
cases  are  not  uniform.  It  is  held  to  be  an- 
other name  for  buying  at  a  discount  :  Tracy 
v.  Talmage,  18  Barb.  (N.  Y.)  456;  Fleckner 
v.  Bank,  S  Wheat.  (U.  S.)  338,  5  L.  Ed.  63]  : 
Pape  v.  Bank,  20  Kan.  4.r.0,  27  Am.  Bep. 
183;  contra.  First  Nat  Bank  of  Rochester 
v.  Pierson,  24  Minn.  141,  31  Am.  Rep.  341; 
Niagara  County  Bank  v.  Baker,  15  Ohio 
St.  87.     See  16  L.  R.  A.  223,  note. 

In  an  ordinary  commercial  document,  dis- 
count means  rebate  of  interest  and  not 
"true"  or  mathematical  discount;  [1896]  2 
Ch.  320. 

A  discount  by  a  bank  means  ex  ri  termini 
a  deduction  or  drawback  made  upon  its  ad- 
vances or  loans  of  money  upon  negotiable 
paper  or  other  evidences  of  debt,  payable 
at  a  future  day,  which  are  transferred  to 
the  bank.  It  is  the  difference  between  the 
price  and  the  amount  of  the  debt,  the  evi- 
dence of  which  is  transferred;  National 
Bank  v.  Johnson.  101  U.  S.  276,  26  L.  Ed. 
742;  Fleckner  v.  Bank,  8  Wheat.  (U.  S.)  338, 
350.  5  L.  Ed.  631. 

The  taking  of  legal  Interest  in  advance  is 
not  usurious;  but  it  is  only  allowed  for  the 
benefit  of  trade  and  where  the  bill  or  note 
discounted  is  meant  for  circulation  and  is 
for  a  short  term;  New  York  Firemen  Ins. 
Co.  v.  Ely,  2  Cow.  <NT.  Y.I  678;  President, 
etc.,  of  Bank  of  Utica  v.  Wager,  2  Cow. 
(N.  Y.)  712:  Bank  of  Utica  v.  Phillips,  S 
Wend.  (N.  Y.)  408. 

There  is  a  difference  between  buying  a 
bill  and  discounting  it.  The  former  word 
is  used  when  the  seller  does  not  indorse  the 
bill  and  is  not  accountable  for  Its  payment: 
McElwee  v.  Collins.  20  N.  C.  350;  but  the 
discount  of  negotiable  paper  at  more  than 
a  lawful  rate  of  interest  Includes  purchase 
of  such  paper  as  well  as  loans:  Danforth  v. 
Bank.  4S  Fed.  271,  1  C.  C.  A.  62,  17  L.  R. 
A.  622. 

Bouv.— 56 


The  bona  fide  sale  of  a  note,  made  in  good 
faith  for  full  value  in  it  a,  is  valid 

and  not  usurious,  but  if  in  its  origin  H 
only  a  nominal  negotiation,  it 
by  a  subsequent  Nich- 

I  7   Pet  0 

623;   Junction  B.  Co.  v.   Bank,   12 
6,    20  L.  Ed.  3 
The  discount  of  a  note  at  more  tl  :' 

-    who    v,. 
maker   nor    pay.'...   is    i  ••    u    .  tul    V. 

Willis.   20  Pa.  5 

W    V 

a  device  to  cover  usury  and  it  may  i 

:  by  the  transferor;    French  v.  Grindle. 
163;     l:   I  r     v.   'rum  155; 

National  Bank  of  Michigan  v.  Gn 
140);    but  this  rule  only  applies  to  business 
paper,  since  the  accommodation  pa- 

per at  a  discount  of  more  than  legal  inter- 
est   is  usurious;     Belden    V.    Laud..    17    ' 
-111:    in  some  cases  II   Is  held  that  if  the  ven- 
dor indorses  or  guarantees  or  Ise  bo- 
na bio  for  the  payment  of  the  bill  or 
note,  the   transaction    is  usurious;    Natl 
Bank  v.  Johnson,  104  U.   S.  271,  26  L  Ed. 
742;   Cov  les  v.  McVii  kar,  :;  Wis.  725,  •■•■ 
however,  it  was  also  held  that   the  lnd 
ment  was  valid                                     i'le  to  the 
holder  as  against  the  maker  though  usurious 
as  against  the  '■■                               being  val- 
id in  its  Inception,   was  not    vitiated    by  the 
subsequent  transaction  except 
Indorser.      The    last    ruling,    however,    was 
said  to   be   obiter  dictum,   but.   the  qu 
arising  for  adjudication,  the   view  m 
proved  and  the  subsequent  ca  Ided  ; 
Armstrong    v.    Gibson.    .".1    Wis.    61,    li 
Rep.  I 

The  discounting  of  negotiable  paper  undi  r 
the  national  bank  act  is  synonymous  with 
loans;  National  Bank  v.  Johnson.  104  U.  S 
271,  26  L.  Ed.  742,  citing  Niagara  Counts 
Bank  v.  Baker,  15  Ohio  St  68,  to  the  ef- 
fect  thai  to  discount  paper  Is  "only  a  mode 
of  loaning  money  with  the  riudit  to  take  the 
Interesl  allowed  by  law  In  advai 
Nation  \i.  Bad  ca 

Where   in  an   act  of  incorporation  tl 
erdse    Of  banking   powers  was  prohibited,    it 
was    held   that    fcherebj    the   discount!] 
ootes  was  forbidden;    United  German   Bank 
v.  Katz,  57  Md.  128,  139;    Sewell,  Banking. 

The  true  discount  for  a  given  sum.  for  a 
given  time,  is  BUCh  a  sum  as  will  in  that 
time  amount  to  the  interest  of  the  sum  to 
be  discounted.     Wharton. 

In  Practice.     A  set-off  or  defalcation  in  an 
action.       Yiner,     Abr.       Discount.       Bu1 
Trabue'a  Ex*r  v.  Harris,  l  Mete  tKy.)  507. 

In  common-law  actions  there  was  a  plea 
of  discount  but  it  is  little  used.  In  Dela- 
ware, where  the  common-law  pleading  Is 
Closely  adhered  to  and  Bhorl  pleas  are  fre- 
quently   used,    it    was    said    that    there    was 


DISCOUNT 


882 


DISCOVERY 


never  any  definite  idea  connected  with  the  1 
plea  of  discount  in  the  Delaware  practice; 
that  they  could  not  "give  it  the  force  or 
meaning  of  a  plea  of  set-off."  Glazier  v. 
McCallister,  5  Harring.  (Del.)  41.  Hence 
that  plea  is  rather  intended  for  use  when 
matter  which  constitutes  a  deduction  or  de- 
falcation of  or  from  the  plaintiff's  claim  is 
introduced  to  reduce  it. 

DISCOVERT.  Not  covert;  unmarried. 
The  term  is  applied  to  a  woman  unmarried, 
or  widow, — one  not  within  the  bonds  of  mat- 
rimony. 

DISCOVERY.  The  act  of  finding  an  un- 
known country. 

The  nations  of  Europe  adopted  the  principle  that 
the  discovery  of  any  part  of  America  gave  title  to 
the.  government  by  whose  subjects  or  by  whose  au- 
thority it  was  made,  as  against  all  European  gov- 
ernments. This  title  was  to  be  consummated  by  pos- 
session;  Johnson  v.  Mcintosh,  8  Wheat.  (U.  S.) 
543,  5  L.  Ed.  681 ;  Martin  v.  Waddell,  16  Pet.  (U. 
S.)  367,  10  L.  Ed.  997;    2  Washb.  R.  P.  518. 

By  the  law  of  nations,  dominion  of  new 
territory  may  be  acquired  by  discovery  and 
occupation  as  well  as  by  cession  or  conquest ; 
Jones  v.  U.  S:,  137  U.  S.  202,  11  Sup.  Ct.  80, 
34  L.  Ed.   691. 

An  invention  or  improvement.  See  Pat- 
ent. Also  used  of  the  disclosure  by  a  bank- 
rupt of  his  property  for  the  benefit  of  cred- 
itors. 

In  Practice.  The  disclosure  of  facts  rest- 
ing in  the  knowledge  of  the  defendant,  or 
the  production  of  deeds,  writings,  or  things 
in  his  possession  or  power,  in  order  to  main- 
tain the  right  or  title  of  the  party  asking  it, 
in  some  other  suit  or  proceeding. 

It  was  originally  an  equitable  form  of  procedure, 
and  a  bill  cf  discovery,  strictly  so  called,  was 
brought  to  assist  parties  to  suits  in  other  courts. 
Every  bill  in  equity  is  in  some  sense  a  bill  of  dis- 
covery, since  it  seeks  a  disclosure  from  the  defend- 
ant, on  his  oath  of  the  truth  of  the  circumstances 
constituting  the  plaintiff's  case  as  propounded  in  his 
bill ;  Story,  Eq.  Jur.  §  1483  ;  but  the  term  is  tech- 
nically applied  as  defined  above.  See  De  Wolf  v. 
De  Wolf,  4  R.  I.  450.  Many  important  questions  have 
arisen  out  of  the  exercise  of  this  power  by  equity ; 
but  these  are  of  comparatively  little  practical  im- 
portance in  England  and  many  of  the  states,  where 
parties  may  be.  made  witnesses  and  compelled  to 
produce  books  and  papers  in  courts  of  law. 

Such  bills  are  greatly  favored  in  equity, 
and  are  sustained  in  all  cases  where  some 
well-founded  objection  does  not  exist  against 
the  exercise  of  the  jurisdiction;  Story,  Eq. 
Jur.  §  1488;  Skinner  v.  Judson,  8  Conn.  528, 
21  Am.  Dec.  691 ;  Wolf  v.  Wolf's  Ex'r,  2  H.  & 
G.  (Md.)  382,  18  Am.  Dec.  313.  Some  of  the 
more  important  of  the  objections  are, — first, 
that  the  subject  is  not  cognizable  in  any 
municipal  court  of  justice ;  Story,  Eq.  Jur.  § 
1489 ;  second,  that  the  court  will  not  lend  its 
aid  to  obtain  a  discovery  for  the  particular 
court  for  which  it  is  wanted,  where  the 
court  can  itself  compel  a  discovery ;  2  Ves. 
451;  Fitzhugh  v.  Everingham,  2  Edw.  Ch. 
(N.  Y.)  605;  Wheeler  v.  Wadleigh,  37  N.  H. 
55;    third,   that  the  plaintiff  is  not  entitled 


by  reason  of  personal  disability ;  fourth,  that 
the  plaintiff  has  no  title  to  the  character  in 
which  he  sues ;  Lansing  v.  Pine,  4  Paige, 
Ch.  (N.  Y.)  639 ;  fifth,  that  the  value  of  the. 
suit  is  beneath  the  dignity  of  the  court, 
sixth,  that  the  plaintiff  has  no  interest  in  the 
subject-matter  or  title  to  the  discovery  re- 
quired ;  2  Bro.  C.  C.  321 ;  Coombs  v.  War- 
ren, 17  Me.  404;  Marion  Nat.  Bank  v. 
Abell's  Adm'x,  88  Ky.  428,  11  S.  W.  300,  10 
Ky.  L.  Rep.  9S0 ;  or  that  an  action  for  which 
it  is  wanted  will  not  lie ;  3  Bro.  C.  C  155 ; 
1  Bligh,  N.  S.  120;  3  Y.  &  C.  255;  seventh, 
that  the  defendant  is  not  answerable  to  the 
plaintiff,  but  that  some  other  person  has  a 
right  to  call  for  the  discovery ;  eighth,  that 
the  policy  of  the  law  exempts  the  defendant 
from  the  discovery,  as  on  account  of  the 
peculiar  relations  of  the  parties ;  2  Y.  &  C. 
107;  City  Bank  v.  Bangs,  3  Paige,  Ch.  (N. 
Y.)  36;  in  case  of  arbitrators;  2  Vera.  380; 
3  Atk.  529 ;  ninth,  that  the  defendant  is  not 
bound  to  discover  his  own  title ;  Bisph.  Eq. 
561;  1  Vern.  105;  Mange  v.  Guenat,  6 
Whart.  (Pa.)  141 ;  see  Downie  v.  Nettleton, 
61  Conn.  593,  24  Atl.  977;  or  that  he  is  a 
bona  fide  purchaser  without  notice  of  the 
plaintiff's  claim ;  8  Sim.  153 ;  McNeil  v.  Hill, 
5  Mas.  269,  Fed.  Cas.  No.  8,915;  Wood  v. 
Mann,  1  Sumn.  506,  Fed.  Cas.  No.  17,951; 
Vattier  v.  Hinde,  7  Pet  (U.  S.)  252,  8  L.  Ed. 
675;  Varick  v.  Briggs,  6  Paige,  Ch.  (N.  Y.) 
323;  and  see  Hart  v.  Bank,  33  Vt.  252; 
Howell  v.  Ashmore,  9  N.  J.  Eq.  82,  57  Am. 
Dec.  371 ;  tenth,  that  the  discovery  is  not 
material  in  the  suit ;  2  Ves.  491 ;  Gelston  v. 
Hoyt,  1  Johns.  Ch.  (N.  Y.)  548;  eleventh, 
that  the  defendant  is  a  mefe  witness ;  2  Bro. 
C.  C.  332;  Geer  v.  Kissom,  3  Edw.  Ch.  (N. 
Y.)  129 ;  but  see  2  Ves.  451 ;  1  Sch.  &  L.  227 ; 

11  Sim.  305 ;  Vermilyea  v.  Bank,  1  Paige,  Ch. 
(N.  Y.)  37;  twelfth,  that  the  discovery  call- 
ed for  would  criminate  the  defendant; 
Noyes  v.  Thorpe,  73  N.  H.  481,  62  Atl.  787, 

12  L.  R.  A.  (N.  S.)  636,  where  a  demurrer  to 
a  bill  in  aid  of  an  action  for  libel  was  sus- 
tained upon  that  ground,  the  discovery  sought 
being  the  name  of  the  author  of  the  article 
complained  of.  In  L.  R.  24  Q.  B.  D.  445, 
note,  the  English  court  of  appeal  refused  to 
compel  the  same  discovery  on  the  ground 
that  it  was  a  "fishing"  interrogatory. 

The  suit  must  be  of  a  purely  civil  nature, 
and  may  not  be  a  criminal  prosecution ;  Lofft 
1 ;  19  How.  St.  Tr.  1154 ;  Broadbent  v.  State, 
7  Md.  416;  a  penal  action;  1  Keen  329;  At- 
will  v.  Ferrett,  2  Blatchf.  39,  Fed.  Cas.  No. 
640;  a  suit  partaking  of  this  character;  U. 
S.  v.  Bank,  1  Pet.  (U.  S.)  100,  7  L.  Ed.  69; 
Northrop  v.  Hatch,  6  Conn.  361;  Higdon  v. 
Heard,  14  Ga.  255 ;  or  a  case  involving  moral 
turpitude.  See  1  Bligh,  N.  S.  96 ;  2  E.  L.  & 
Eq.  117;  5  Madd.  229;  11  Beav.  3S0 ;  1  Sim. 
404 ;  Pleasants  v.  Glasscock,  1  S.  &  M.  Ch. 
(Miss.)  17.  In  a  civil  action  for  conspiracy 
a  discovery  of  material  documents  cannot 
be  refused  merely  because  they  tend  to  crim- 


DISCOVERY 


iuate  one  or  to  Involve  him  in  a  criminal 
charge;  [1906]  A.  C.  434;  and  In  a  suit 
against  a  newspaper  pro]  •   both  UbeJ 

and  conspiracy  the  discovery  cannot  be  avoid- 
ed "on  the  ground  either  of  privilege  or  self- 
criniination  :  [1899]  2  Ir.  Rep.  Q.  B. 

Workmen  pledged  to  secrecy  and  emp 
in  a  factory  in  which  the  bus!  induct- 

ed   in   private,    to   Becuri  as    to   the 

method    of   manufacture,    will   not   be   com- 
pelled, iu  a  suit  against  their  emplo;  • 
disclose  such  secrets;  Dobson  v.  Graham,  49 
Fed.  IT. 

A  corporation  not  a  party  to  n  suit  will  not 

be  compelled  to  open  iis  r< nls  which  it  Is 

claimed    will    disclose   something   of   impor- 
tance to  the  litigation;  Henry  v.  Ins.  C 
Fed.  15;  nor  is  an   adv.  Inaflon  ol 

a  defendant  before  trial  allowable  for  the 
purpose  of  discovering  a  cause  of  action; 
Britton  v.  MacDonald,  3  .Misc.  514,  23  N.  Y. 
Supp.  350;  Nathan  v.  YVhiiehill,  G7  Hun  3(JS, 
22    N.    Y.   Supp.    63. 

An  infant  party  to  an  action  cannot  be 
compelled  to  make  discovery  of  documents ; 
[1892]  2  Q.  B.  ITS. 

The  court  has  power  to  allow  a  party  to 
an  action  to  take  photographs  of  documents 
in  the  possession  of  the  other  party;  Ll^'-J 
2  Q.  B.  191. 

It  seems  to  be  settled  that  a  bill  will  lie 
against  a  corporation  and  its  officers  to  com- 
pel a  discovery  from  the  officers,  to  aid  a 
plaintiff  or  a  defendant  in  maintaining  or 
defending  a  suit  brought  against  or  by  the 
corporation  alone ;  McComb  v.  R.  Co.,  T  Fed. 
426,  19  Blatchf.  69 ;  1  Ch.  D.  Tl ;  Post  v.  R. 
Co.,  144  Mass.  34T,  11  N.  E.  540,  59  Am.  Rep. 
86.  Since  it  answers  under  its  seal  and 
not  upon  oath,  there  can  be  no  discovery 
by  a  corporation  unless  its  officers  or  agents 
who  know  the  facts  are  made  parties;  Man- 
chester Fire  Assur.  Co.  v.  Agricultural  Works, 
38  Fed.  3TS;  Vaughn  v.  R.  Co.,  1  Flip.  621, 
Fed.  Cas.  No.  16,898 ;  but  an  officer  of  a  cor- 
poration cannot  be  joined  as  defendant  iu  a 
bill  of  discovery  where  he  did  not  derive 
the  desired  information  in  his  official  capac- 
ity; McComb  v.  R.  Co.,  T  Fed.  426. 

In  the  sense  in  which  the  word  is  used 
with  respect  to  equity  suits  generally,  there 
was,  until  a  comparatively  recent  period,  a 
failure  to  recognize  the  distinction  between 
the  two  functions  of  an  answer  in  chancery, 
viz.:  discovery  and  defence.  These  two  were 
in  the  civil  law  entirely  separated,  while 
in  chancery  they  were  indiscriminately  Com- 
mingled. The  distinction  is  very  clearly  put 
in  Langdell's  Equity  Pleadings,  2d  ed.  |  t;^, 
where  the  author  attributes  to  Wigram  (Disc., 
2d  ed.  §  IT)  and  Hare  (Disc.  223)  the  Blmul- 
taneous  notice  of  what  die  terms  "the  un- 
natural union."  The  distinction  is  Impor- 
tant  because,  when  it  is  borne  in  mind,  the 
"rule  for  determining  what  discovery  the 
defendant  must  give  in  his  answer  becomes 
simple  and  uniform.     He  must  answer  cate- 


gorically    . 

in    the    bill,   u 
jectioii    which    would 
of  a  witness."     In  i 
tion,    r. 
rule    as     to 

in  which  a  <:■  fendant  mi 
as  to  mat 
not.    Among  ' 

■ 
conflicting  claim 
which  must 
a  defendant  ma 

the  bill  iii !'  ing  wholly  to  otl 
With    resped    to   particular   i  •   rule 

must    be  deduced   from    the   de  Lsions 
nearly    applicable,    and     the    •  il    be 

found  to  be  I  and  examined  with  dis- 

crimination in  the  work  cited.  SO  Ad. 

EJq.  b.  1.  ch.  l.     ' 

A  bill  in  equity  which  waives  an  oath  to 
the  answer  is  demurrable;  Starkweather  v. 
Williams,  21  R.  I.  55,  -il  Atl.  loo::-,  and  the 
complainant  cannot  have  discovery  upon 
such  a  bill;  Tillinghast  v.  Chare,  123 
435  i  where  the  collected  and  those 

(■mitra    criticised):    Huntington    v.    Saunders. 
120  r.   S.  TS,  T  Sup.  Ct 
Ward   v.    Peck,   114    Mass.    121;    Torrent    v. 
:s,   31)   Mich.   85;    Stettauer   v.   Dwight. 

54  111.  App.  194;  otherwise  if  the  bill  prays 
both  discovery  and  relief;  Manley  v.  Mickle, 

55  N.    J.   Eg.  563,    .".T   Atl.    738.      Where   the 
oath    is   waived   in    a    bill    of   disc 

dant  may  decline  to  answer,  but  if  he 
undertakes  to  answer,  he  must  state  wheth- 
er he  had  knowledge  or  Information,  but 
not  his  belief;  Yictor  G.  Bloede  Go.  V.  I 
ter,  148  Fed.  127.  A  bill  of  discovery  will 
not  lie  against  a  mere  witness;  Post  v. 
Boardman.  10  Paige  Ch.  (N.  I.) 
general  rule;  Howell  v.  A  9  N.  .1.  Eq. 

82,  ~>~  Am.  Dec.  .".71.     Nor  is  there  equitable 
jurisdiction   in   a   suit   where   dis< 
relief  are  sought,  but  the  only  ground   for 
equitable  relief  is  discovery  of  evidence  to 
be  used  in  enforcing  a  purely  legal  demand; 
Safford  v.  Mfg.  Co.,  120  Fed.  480,  58  C.  C.  a. 
630.      A    simple   bill    of   discovery    will    now 
hardly  be  resorted  to  in   the  '  cited   Si 
courts  because  unnecessary  when 
utes    available   in    0  'ts    furnish    the 

remedies    formerly    sought    only    in    equity; 
In  re  Boyd,   105  Q.   S.  647,   26  1..   Ed 

v.  Neely,  1 10  O.  S.  109,  11  Sap.  Ct  712, 
35  T>.  I'd.  358;  or  the  relief  sough!  i-  avail- 
able under  I'.  S.  R,  S.  5  724,  providing  for 
production   of  books,   etc.,   in  suits  at   law. 

Statutory  provisions  enlarging  the  juris- 
diction of  courts  of  law.  such  as  to  provide 
for  discovery  at  law.  have  been  held  to  be 
merely  cumulative  and  not  to  abridge  the 
jurisdiction  of  equity  to  compel  a  discovery 
(unless  otherwise  specifically  providi  >l  by 
statute),  even  though,  by  enlarge  ment  of  their 
jurisdiction,  the  courts  of  law  could  afford 


DISCOVERY 


884 


DISCREDIT 


similar  relief;  Kelley  v.  Boettcher,  85  Fed. 
5.5,  29  C.  C.  A.  14 ;  Kurtz  v.  Brown,  152  Fed. 
372,  81  C.  C.  A.  498,  11  Ann.  Cas.  576 ;  3  K. 
&  J.  433;  Union  Passenger  Ry.  Co.  v.  Mayor, 
etc.,  71  Md.  238,  17  Atl.  933;  Reynolds  v. 
Fibre  Co.,  71  N.  H.  332,  51  Atl.  1075,  57  L. 
R.  A.  949,  93  Am.  St.  Rep.  535;  Miller  v. 
Casualty  Co.,  61  N.  J.  Eq.  110,  47  Atl.  509 ; 
Clark  v.  Locomotive  Works,  24  R.  I.  307,  53 
Atl.  47;  Nixon  v.  Lumber  Co.,  150  Ala.  602, 
43  South.  S05,  9  L.  R.  A.  (N.  S.)  1255.  But 
in  other  jurisdictions  (where  possibly  the 
distinctive  systems  of  law  and  equity  are 
less  closely  adhered  to)  it  is  held  otherwise ; 
Turnbull  v.  Crick,  63  Minn.  91,  65  N.  W.  135 ; 
Baylis  v.  Mfg.  Co.,  59  App.  Div.  576,  69  N. 
Y.  Supp.  693;  Bond  v.  Worley,  26  Mo.  253; 
Warren  v.  Baker,  43  Me.  570;  Chapman  v. 
Lee,  45  Ohio  St.  356,  13  N.  E.  736;  Riopelle 
v.  Doellner,  26  Mich.  102 ;  Cleveland  v.  Burn- 
bam,  60  Wis.  16,  17  N.  W.  126,  18  N.  W. 
190;  Hall  v.  Joiner,  1  S.  C.  1S6  (where  the 
decision  is  put  upon  the  ground  that,  in 
that  state,  the  jurisdiction  of  equity  for 
want  of  an  adequate  remedy  at  law,  rests 
on  a  statute) ;  though  probably,  where  sepa- 
rate courts  of  law  and  equity  are  maintained, 
it  is  generally  held  that  the  equitable  reme- 
dy is  not  abridged ;  1  Pom.  Eq.  Jur.  §  193. 

Courts  of  equity  which  have  once  obtained 
jurisdiction  for  purposes  of  discovery  will 
dispose  of  a  cause  finally,  if  proper  for  the 
consideration  of  equity,  though  the  remedy 
at  law  is  fully  adequate ;  1  Story,  Eq.  Jur. 
■64  7c;  Chichester's  Ex'r  v.  Vass'  Adm'r,  1 
Munf.  (Va.)  98,  4  Am.  Dec.  531;  Traip  v. 
Gould,  15  Me.  82 ;  Wood  v.  Hudson,  96  Ala. 
469,  11  South.  530. 

DISCREDIT.  To  deprive  one  of  credit  or 
confidence. 

In  general,  a  party  may  discredit  a  wit- 
ness called  by  the  opposite  party,  who  testi- 
fies against  him,  by  proving  that  his  char- 
acter is  such  as  not  to  entitle  him  to  credit 
or  confidence,  or  any  other  fact  which  shows 
he  is  not  entitled  to  belief.  It  is  clearly 
settled,  also,  that  the  party  voluntarily  call- 
ing a  witness  cannot  afterwards  impeach  his 
character  for  truth  and  veracity ;  3  B.  & 
C.  746;  Chism  v.  State,  70  Miss.  742,  12 
South.  852;  Erwin  v.  State,  32  Tex.  Cr.  R. 
519,  24  S.  W.  904.  If  a  party  call  a  witness 
who  turns  out  unfavorable,  he  may  call  an- 
other to  prove  the  same  point ;  2  Campb. 
556 :  4  B.  &  A.  193 ;  Meyer  Bros.  Drug  Co.  v. 
McMahan,  50  Mo.  App.  18.  The  rule  that  a 
party  cannot  discredit  his  own  witness  is 
not  violated  by  proving  facts  contrary  to 
the  testimony  of  such  witness ;  Chester  v. 
Wilhelm,  111  N.  C.  314,  16  S.  E.  229. 

Where  the  evidence  of  a  witness  is  a  sur- 
prise to  the  party  calling  him,  the  trial  judge, 
in  the  exercise  of  discretion,  may  permit 
him  to  be  cross-examined  by  such  party  to 
show  that  his  previous  statements  and  con- 
duct were  at  variance  with  his  testimony ; 
Selover  v.  Bryant,  54  Minn.  434,  56  N.  W.  58, 


21  L.  R.  A.  418,  40  Am.  St.  Rep.  3.  Proof 
cf  contradictory  statements  by  one's  own 
witness,  voluntarily  called  and  not  a  party, 
is  in  general  not  admissible,  although  the 
party  calling  him  may  have  been  surprised 
by  them ;  but  he  may  show  that  the  facts 
were  not  as  stated,  although  these  may  tend 
incidentally  to  discredit  the  witness ;  Hick- 
ory v.  U.  S.,  151  U.  S.  303,  14  Sup.  Ct.  334, 
38  L.  Ed.  170. 

DISCREPANCY.  A  difference  between 
one  thing  and  another,  between  one  writing 
and  another ;   a  variance. 

A  material  discrepancy  exists  when  there 
is  such  a  difference  between  a  thing  alleged 
and  a  thing  offered  in  evidence  as  to  show 
they  are  not  substantially  the  same:  as, 
when  the  plaintiff  in  his  declaration  for  a 
malicious  arrest  averred  that  "the  plaintiff, 
in  that  action,  did  not  prosecute  his  said 
suit,  but  therein  made  default,"  and  the  rec- 
ord was  that  he  obtained  a  rule  to  discon- 
tinue. 

An  immaterial  discrepancy  is  one  which 
does  not  materially  affect  the  cause:  as, 
where  a  declaration  stated  that  a  deed  bore 
date  in  a  certain  year  of  our  Lord,  and  the 
deed  was  simply  dated  "March  30,  1701."  2 
Salk.  658 ;  Henry  v.  Brown,  19  Johns.  (N.  Y.) 
49;  Wade  v.  Grimes,  7  How.  (Miss.)  428; 
Drake  v.  Fisher,  2  McLean,  69,  Fed.  Cas.  No. 
4,061 ;  2  B.  &  Aid.  301. 

DISCRETION.  That  part  of  the  judicial 
function  which  decides  questions  arising  in 
the  trial  of  a  cause,  according  to  the  particu- 
lar circumstances  of  each  case,  and  as  to 
which  the  judgment  of  the  court  is  uncon- 
trolled by  fixed  rules  of  law. 

The  power  exercised  by  courts  to  deter- 
mine questions  to  which  no  strict  rule  of 
law  is  applicable  but  which,  from  their  na- 
ture, and  the  circumstances  of  the  case,  are 
controlled  by  the  personal  judgment  of  the 
court. 

"Discretion  when  applied  to  a  court  of 
justice  means  sound  discretion  guided  by 
law."  4  Burr.  529.  Judicial  discretion  is  a 
mere  legal  discretion — a  discretion  in  dis- 
cerning the  course  presented  by  law ;  and 
what  that  has  discerned  it  is  the  duty  of  , 
the  court  to  follow.  Osborn  v.  Bank,  9 
Wheat.  738,  6  L.  Ed.  204.  "The  discretion 
is  not  wilful  or  arbitrary,  but  legal  [to  set 
aside  a  judicial  sale],  and  though  its  exer- 
cise be  not  purely  a  matter  of  law,  yet  it  in- 
volves a  matter  of  law  or  legal  inference." 
Lovinier  v.  Pearce,  70  N.  C.  167.  "A  legal 
discretion  is  one  that  is  regulated  by  well 
known  and  established  principles  of  law." 
Detroit  Tug  &  Wrecking  Co.  v.  Circuit  Judge, 
75  Mich.  360,  42  N.  W.  968. 

Bishop  on  Mar.  &  Div.  §  830,  defines  it  as 
"denoting  a  sort  of  individual  liberty,  a  sort 
of  liberty  in  the  collective  judges  and  an 
adherence  to  legal  principles  blended  in  such 
a    way   as   shall   constitute   an   establisheG 


DISCRETION 


885 


DISCRETION 


course  of  justice  bending  to  the  circumstanc- 
es of  the  case  instead  of  requiring  the 
to  bend  to  it." 

"But  if  the  word  discretion  in  this  con- 
nection [injunction]  is  used  In  Its  secondary 
sense,  and  by  it  is  meant  that  the  chancel- 
lor lias  the  liberty  and  power  of  acting,  In 
finally  settling  property  rights,  at  his  dis- 
cretion, without  the  restraint  of  the  Legal 
and  equitable  rules  governing  those  rights, 
then  I  deny  Buch  power;"  Eennessy  v.  Car- 
mony,  50  N.  J.  Eq.  616,  -i:>  Atl.  374. 

It  would  tend  to  clearness  and  exactness 
if  discretion  were  used  only  with  reference 
to  those  matters  where  the  action  of  the 
trial  judge  is  final ;  Jenkins  v.  Brown,  21 
Wend.   (X.  Y.)  454. 

Whether  or  nut  a  particular  question  is 
one  of  discretion  is  in  almost  every  case  a 
matter  of  set!  led  law,  and  the  individual 
court  or  judge  has  no  power  to  place  it  with- 
in or  without  tha  I  category.  II  is  only  when 
a  question  arises  which,  according  to  piece 
dent,  is  treated  as  such  that  the  Judicial 
discretion  is  invoked  and  its  exert  ise  cannot 
be  reviewed. 

The  discretion  of  a  judge  is  said  by  Lord 
Camden  to  be  the  law  of  tyrants:  it  is  al- 
ways unknown,  it  is  different  in  different 
men ;  it  is  casual,  and  depends  upon  con- 
stitution, temper,  and  passion.  In  the  best, 
it  is  oftentimes  caprice;  in  the  worst,  it  is 
every  vice,  folly,  and  passion  to  which  hu- 
man nature  is  liable.  Optima  lex  qua:  inini- 
mum  relinquit  arbitrio  judicis:  optimus  ju- 
dex qui  minimum  sibi.  Bacon,  Aph. ;  -  Bell, 
Suppl.  to  Yes.  391;  Toullier,  liv.  3,  n.  338;  1 
Lilly,  Abr.  447.  But  the  prevailing  opinion 
is  that  discretion  must  not  he  arbitrary, 
fanciful,  and  capricious;  it  must  be;  legal 
and  regular,  governed  by  rule,  not  by  humor ; 
4  Burr.  25;  Judges  of  Oneida  Common  Pleas 
v.  People,  18  Wend.  (N.  Y.)  99. 

Many  matters  relating  to  the  trial  such  as 
the  order  of  giving  evidence,  etc.,  are  proper- 
ly left  mainly  or  entirely  to  the  discretion 
of  the  judge;  Utsey  v.  R.  Co.,  38  S.  C.  399; 
17  S.  E.  141;  Winklemeir  v.  Dalber,  '•'- 
Mich.  621,  52  N.  W.  1036;  Coffin  v.  Hydraulic 
Co.,  136  N.  Y.  (jr..-,,  32  X.  E.  1076;  Northern 
Pac.  R.  Co.  v.  Charless,  51  Fed.  .~>(;2,  2  C.  C.  A. 
3S0;  Estis  v.  Jackson,  111  N.  0.  145,  16  S.  E. 
7,  32  Am.  St.  Rep.  784. 

Decisions  upon  matters  within  the  absolute 
discretion  of  a  court  are  not  reviewable  in 
courts  of  appeal ;  Harrington  v.  By.  Co.,  157 
Mass.  579,  32  N.  E.  955;  Perry  v.  Shedd,  159 
Mass.  200,  34  X.  E.  174;  Pittsburgh,  O.  &  St. 
L.  R.  Co.  v.  Heck,  102  U.  S.  120,  26  L.  Ed. 
58;  but  the  discretion  in  granting  or  refus- 
ing a  writ  of  mandamus  musl  lie  exorcised 
under  legal  rules,  and  is  reviewable  in  an 
appellate  court;  People  v.  Common  Council 
of  Syracuse,  78  N.  Y.  5G.  Sucb  a  writ  will 
not  be  granted  to  regulate  the  exercise  of 

discretion  on  the  part  of  an  olhcial ;  State 


v.   Van   Ness,  15  Fla.  :;17:  Ex  parte  Harris, 
52  Ala.  sT.  23  Am.  Be]  .  559. 

A  testator  may  leave  it  to  bla  executor  to 
construe   tiie   pi  .,f  his   will,   and    to 

decide     doubtful    qu  ruing     his 

intentions:    American    Board   of    i 

:  and 
the  donor  of  a   power  may 
tion   to  the  discretion  ol  I ».  J. 

vS:   S.  61  !. 

In  Criminal  Law.     The  ability  to  know  and 
distinguish  between  good  and  evil, — 1»  : 
what  is  lawful  and  what  is  unlawful. 

In  most  modern  criminal  statutes  the 
amount  of  punishment  is  usually  left  I 

lion  of  the  court.    See  Indeterminate 

ICES. 

As  to  the  age  at  which  children  are  said  to 
arrive  at  discretion,  see  Age;  Doxj  Oapax 

DISCRETIONARY  TRUSTS.  Those  which 
cannot  be  duly  administered  without  the  ap- 
plication of  a  cet  of  prudence  and 
judgment:  as,  when  a  fund  Is  given  to  trus- 
tees to  be  distributed  in  certain  charll 
be  selected  by  the  trust' 

DISCRIMINATION.  This  word  is  now 
generally  applied  In  law  to  a  breach  of  the 
statutory  or  common-law  duty  of  a  carrier 
to  treat  all  customers  alike.  It  Is  applied  to 
inequality  in  both  rates  of  fare  and  rates  of 
freight,  and  may  also  be  practised  by  In- 
equality in  the  facilities  afforded  to  differ- 
ent consignors. 

Commebce      Commission;      Bates;      Klhate; 
Railroads. 

As  to  discrimination  in  the  distribution  of 
cars  to  shippers,  see  Bailboads. 

DISCUSSION.  In  Civil  Law.  A  pro 
ing  on  the  part  of  a  surety  by  which  the 
property  of  the  principal  debtor  is  made  lia- 
ble before  resort  can  be  had  to  the  su; 
this  is  called  the  hem  jit  of  discussion.  This 
is  the  law  In  Louisiana.  See  Domat,  3,  4, 
1-4;  Burge,  Suretyship  329,  343,  348;  5  Toul- 
lier 544;   7  id.  93. 

DISENTAILING     ASSURANCE.       A 

executed    under    stat.    ::    &     1    Will.    4.    C    7  1. 

whereby  the  tenant  In  tail  Is  enabled  to  alien- 
ate the  land  for  an  estate  in  fee-sim] 
any  less  estate,  and  thus  destroy  the  entail. 
The  deed  must  he  duly  enrolled  in  the  Court 
of  chancery  within  six  months  of  its  execu- 
tion ;    1  Steph.  Com.  250, 

DISFRANCHISEMENT.  The  act  of  de- 
priving a  men. her  of  a  corporation  of  his 
right  as  such,  by  expulsion. 

It  differs  from  amotion  (</.  v.).  which  is  ap- 
plicable to  the  removal  of  an  officer  from 
office,  leaving  him  his  rights  as  a 
Willc.  Corp.  n.  708;  Aug.  &  A.  Corp.  _::7; 
10  II.  L.  ''as.  404;  Siate  v.  A. lams,  4  1  Mo. 
570;    White  v.   BrowneU,  2  Daly  (N.   V.i  329. 

The  power  of  disfranchisement  extends  only 
to  societies  not  owning  property  or  organiz- 


DISFRANCHISEMENT 


886 


DISHONOR 


ed  for  gain;    unless  the  power  be  given  by 
the  charter;  Evans  v.  Philadelphia  Club,  50 
Pa.  107;    Green's  Briee,   Ultra  Vires  45;    41 
L.  T.  N.  S.  490 ;   People  v.  Board  of  Trade  of 
Chicago,  80  111.  134 ;  People  v.  New  York  Cot- 
ton Exchange,  8  Hun  (N.  Y.)  21G ;    Ang.  &  A. 
Corp-  §  410.     It  extends  to  the  expulsion  of 
members    who    have    proved    guilty    of    the 
more  heinous  crimes,  as  to  which  there  must 
first  be  a  conviction  by  a  jury ;   Com.  v.  Ben- 
evolent Society,  2  Binn.  (Pa.)  448,  4  Am.  Dec. 
4;    Society   for   Visitation   of  Sick   v.   Com., 
52  Pa.  125,  91  Am.  Dec.  139.     It  is  said  that 
the  power  exists  where  members  do  not  ob- 
serve certain  duties  to  the  corporation,  es- 
pecially where  the  breach  tends  directly  or 
indirectly  to  the  forfeiture  of  the  corporate 
rights,   and   franchises,  and  the  destruction 
of  the  corporation ;  Green's  Brice,  Ultra  Vi- 
res 45 ;  People  v.  Board  of  Trade  of  Chicago, 
45  111.  112 ;    Hussey  v.  Gallagher,  61  Ga.  86 ; 
Sale  v.  Baptist  Church,  62  la.  26,  17  N.  W. 
143,  49  Am.  Rep.  136.    A  member  is  entitled 
to  notice  of  the  charges  against  him,  and  to 
an  opportunity  to  be  heard ;   Evans  v.  Phila- 
delphia Club,  50  Pa.  107;    People  v.  Sailors' 
Snug  Harbor,  54  Barb.    (N.   Y.)  532;     State 
v.   Board  of  Management,  40  N.  J.   L.  295; 
People   v.   Benevolent   Society,  24  How.   Pr. 
(N.   Y.)   216;     State  v.   Adams,  44   Mo.   570; 
Gregg  v.  Medical  Society,  111  Mass.  185,  15 
Am.  Rep.  24.     See  Association;  Expulsion. 
Except  in  cases  authorized  by  constitution- 
al provisions,  a  citizen  entitled  to  vote  can- 
not be  disfranchised,  or  deprived  of  his  right 
by  any  action  of  the  public  authorities,  and 
a  law  having  such  effect  is   void;    Cooley, 
Const.  Lim.  776;    as  an  act  creating  a  new 
county  and  leaving  part  of  its  territory  un- 
organized so  that  the  voters  of  that  portion 
could  not  participate  in  the  election ;   People 
v.  Maynard,  15  Mich.  471.    A  citizen  who  has 
been  convicted  of  bribery  at  an  election  and 
has  undergone  the  punishment  is  qualified  to 
vote,  without  a  pardon;    Osborne  v.  County 
Court,  68  W.  Va.  189,  69  S.  E.  470,  32  L.  R. 
A.  (N.  S.)  41S. 

The  present  use  of  the  word  in  England  is  the  de- 
priving an  individual  of  his  right  of  voting,  or  a 
constituency  of  their  right  of  returning  a  member 
to  parliament.     May's   Pari.  Pr. 

DISGRACE.  Ignominy;  shame;  dishonor. 
No  witness  is  required  to  disgrace  himself. 
13  How.  St.  Tr.  17,  334;  16  id.  161.  See 
Criminate. 


DISGUISE. 

A  person  lying  in  ambush  is  not  in  disguise  within 
the  meaning  of  a  statute  declaring  a  county  liable 
in  damages  to  the  next  of  kin  of  any  one  murdered 
by  persons  in  disguise ;  Dale  County  v.  Gunter,  46 
Ala.   118,  142. 

DISHERISON.  Disinheritance;  depriving 
one  of  an  inheritance.  Obsolete.  See  Dis- 
inherison. 

DISHERIT0R.  One  who  disinherits,  or 
puts  another  out  of  his  freehold.    Obsolete. 


DISHONOR.  A  term  applied  to  the  non- 
fulfillment of  commercial  engagements.  To 
dishonor  a  bill  of  exchange,  or  a  promissory 
note,  is  to  refuse  or  neglect  to  pay  it  at 
maturity. 

The  holder  is  bound  to  give  notice  to  the 
parties  to  such  instruments  of  its  dishonor; 
and  his  laches  will  discharge  the  indorsers ; 
Chit.  Bills  250,  394 ;   1  Pars.  N.  &  B.  506,  520. 

DISINHERISON.  In  Civil  Law.  The  act 
of  depriving  a  forced  heir  of  the  inheritance 
which  the  law  gives  him. 

In  Louisiana,  forced  heirs  may  be  depriv- 
ed of  their  legitime,  or  legal  portion,  and 
of  the  seisin  granted  them  by  law,  for  just 
cause.  The  disinherison  must  be  made  in 
proper  form,  by  name  and  expressly,  and  for 
a  just  cause ;  otherwise  it  is  null.  See  Forc- 
ed Heirs;  Legitime. 

DISINHERITANCE.  The  act  by  which  a 
person  deprives  his  heir  of  an  inheritance, 
who,  without  such  act,  would  inherit. 

By  the  common  law  (since  the  statute  of 
wills)  any  one  may  give  his  estate  to  a 
stranger,  and  thereby  disinherit  his  heir  ap- 
parent.    Cooper,  Justin.  495 ;    7  East  106. 

An  heir  cannot  be  disinherited  by  mere 
words  of  exclusion,  but  the  entire  property 
of  the  testator  must  be  given  to  some  one 
else  by  express  words  or  by  necessary  im- 
plication;  Phillips  v.  Phillips,  93  Ky.  498, 
20  S.  W.  541 ;  Chamberlain  v.  Taylor,  105  N. 
Y.  185,  11  N.  E.  625;  Gallagher  v.  Crooks, 
132  N.  Y.  338,  30  N.  E,  746;  Hancock's  Ap- 
peal, 112  Pa.  532,  5  Atl.  56;  and  where  a 
will  provides  that  a  gift  therein  is  to  be  the 
entire  share  of  an  heir,  he  is  not  excluded 
from  a  share  of  property  not  disposed  of  by 
the  will;  Sutherland  v.  Sydnor,  84  Va.  880, 
6  S.  E.  480,  even  though  the  will  shows  that 
the  testator  believed  he  was  disposing  of  all 
his  property;  id.  A  testamentary  writing 
which  revokes  all  other  wills,  and  excludes 
a  son  from  any  share  of  the  estate,  for  rea- 
sons given,  but  does  not  dispose  of  the  prop- 
ertv,  does  not  affect  the  rights  of  such  son; 
Coffman  v.  Coffman,  85  Va.  459,  8  S.  E.  672, 
2  L.  R.  A.  848,  17  Am.  St.  Rep.  69. 

In  a  case  of  doubt  the  law  leans  to  a  dis- 
tribution of  the  estate  of  a  deceased  person 
as  nearly  conforming  to  the  rules  of  inheri- 
tance as  possible. 

DISINTERESTED  WITNESS.  One  who 
has  no  interest  in  the  cause  or  matter  in  is- 
sue, and  who  is  lawfully  competent  to  tes- 
tify. 

DISINTERMENT.     See  Dead  Body. 


DISJUNCTIVE  ALLEGATIONS.  Allega- 
tions which  charge  a  party  disjunctively,  so 
as  to  leave  it  uncertain  what  is  relied  on  as 
the  accusation  against  him. 

An  indictment,  information,  or  complaint 
which  charges  the  defendant  with  one  or 
other  of  two  offences,  in  the  disjunctive,  as 


DISJUNCTIVE  ALLEGATIONS  887 


di-m: 


that  he  murdered  or  caused  to  be  murdered, 
forged  or  caused  to  be  forged,  wrote  and  pub- 
lished or  caused  to  be  written  and  published, 
is  bad  for  uncertainty;  l  Salt  342,  371  ;  2 
Stra.  900:  5  B.  &  C.  251  ;  1  0.  A  K.  2 
Y.  &  J.  22.     An  indictment  which  averred 


■  d  on  the  Durant   f 

Wall,    if  19   L.   Ed 

But    a    bill    "di  on    motion   of   com- 

plainant does  not  1  a;  parte 

Loung  June,  160  l  ed.  2 
A  judgment  of  dl  lintiff 


that  s.  made  a  forcible  entry  into  two  'ils  to  observe  a  rule  ol  co« 

of  meadow  or  pasture  was  held  to  be  bad;    2  come  res  judicata;     Ryan   v.   B 

Rolle,  Abr.  SI.    A  complaint  which  alleges  an  397;  so  of  a  dismli  sal  h, 

unlawful  sale  of  "spirituous  or  Intoxicating  ties;    Rincon  Water  &   P 


jpii 

liquor"  is  had  for  uncertainty;  Oom.  v.  Grey, 
L'  Gray  (.Mass.)  501,  01  Am.  Dee  476.  So  is 
an  Information  which  alleges  that  N.  sold 
beer  or  ale  without  an  excise  licen 
Dowl.  &  R.  14.':.  And  the  same  rule  applies 
if  the  defendant  is  charged  in  two  different 
characters  in  the  disjunctive:  as,  quod  a  ex- 
Istena  servua  -sire  deputatus,  took,  etc.;  2 
Rolle,  Abr.  263. 

DISJUNCTIVE  TERM.  One  which  is  plac- 
ed between  two  contraries,  by  the  affirming 
of  one  of  which  the  other  is  taken  away:  it 
is  usually  expressed  by  the  word  or.  See  3 
Ves.  450;  l  P.  Wms.  433;  2  Cox,  Ch.  213; 
2  Atk.  643;  2  Ves.  Sen.  07;  Cro.  Ella.  525; 
1  Bingh.  500;    Ayliffe,  I'and.  5G. 

In  the  civil  law,  when  a  legacy  is  given 
to  Cains  or  Titius,  the  word  or  is  considered 
and,  and  both  Cains  and  Titius  are  entitled 
to  the  legacy  in  equal  parts.  6  Toullier,  a. 
704.     See  Copulative  Teem;  Construction. 


DISME.     Dime,  which  see. 

DISMISS.  To  remove.  To  send  out  of 
court.  Formerly  used  in  chancery  of  the 
removal  of  a  cause  out  of  court  without  any 
farther  hearing.  The  term  is  now  used  in 
courts  of  law  also. 

It  signifies  a  final  ending  of  a  suit,  not  a 
final  judgment  on  the  controversy,  hut  an 
end  of  that  proceeding;  Taft  v.  Transp.  Co., 
56  N.  II.  417;  Conner  v.  Drake,  1  Ohio  St. 
170.  It  is  well  settled  that  the  judgment  of 
a  court  dismissing  a  suit  for  want  of  juris- 
diction does  not  conclude  the  plaintiff's  right 
of  action:  Smith  v.  McNeal,  109  U.  S.  429,  3 
Sup.  Ct.  319,  27  L.  Ed.  986. 

After  a  decree,  whether  final  or  in' 
Utory,  has  been  made  by  which  the  rights  of 
a  party  defendant  have  been  adjudica 
such  proceedings  have  been  taken  as  entitle 
the  defendant  to  a  decree,  the  complainant 
will  not  be  allowed  to  dismiss  his  hill  without 
the  consent  of  the  defendant  ;  Chicago  &  a. 
R.  R.  Co.  v.  Mill  Co.,  109  U.  S.  713,  ::  Sup. 
Ct.  594,  27  L.  Ed.  1081. 

The  effect  of  dismissals  under  the  codes  of  some 
of  the  United  States,  has  been  much  discussed. 
Thus  in  New  York,  "a  final  judgment  dismissing 
the  complaint,  either  before  or  after  a  trial,  render- 
ed in  an  action  hereafter  con  'loes  not  pre- 
vent a  new  action  for  the  same  cause  of  action,  un- 
less it  expressly  declares  that  it  is  rendered  upon 
the  merits. 

DISMISSED.  A  judgment  of  "Dismissed," 
without  qualifying  words  Indicating  a  right 
to  take  further  proceedings,  is  presumed   to 


Co.,   U".    Pel.   543.     But   ch  ob- 

•.  might  bad  to  a  different  rule. 

DISORDERLY  HOUSE.  A  bouse  the  in- 
of  which  l  ehave  so  badl: 
a  nuisance  to  tie-  neighborhood.  State  v. 
•:i  .Mil, ii.  348,  94  N.  W.  Pi77;  Haw- 
kins v.  Lutton,  '.'•"■  Wis.  493,  70  N.  W.  483,  80 
Am.  St.  Rep.  13L  It  has  a  wide  meaning, 
and  includes  bawdy  houses,  common  gaming 
.  and  places  "f  a  like  character;  l 
Bish.  Cr.  L.  8  IP"'.:  Q.  S.  v.  Gray,  2  Cra. 
C.  «'.  675,  Fed.  Caa  No.  15,251  ;  Com.  v. 
Cobb,  120  Mass.  356.  Any  pice  of  public  re- 
sort in  which  Illegal  practices  are  carried 
on.  Involving  moral  turpitude  or  i 
v.  Martin,  77  X.  .1.  E  652,  7:;  Atl  548,  24  E 
R.  A.  iX.  S.i  507,  134  Am.  St.  Rep.  Bl  ».  18 
Ann.  fas.  986,  where  a  person  making  usuri- 
ous loans  was  convicted  of  keeping  a  disor- 
derly house.  In  order  to  constitute  it  BU<  h  it 
is  do!  necessary  that  tin  i  violative 

of  the  peace  of  the  neighborhood,  or  t  ■ 
ous  disturbance  and  open  acts  of  lewdness; 
Beard  v.  State.  71  Md.  275,  17  Atl.  1044,  4 
L.  R.  A.  675,  17  Am.  St  Rep.  •"•':'•>:  but  a 
single  act  of  lewdness  of  a  man  and  woman 
in  a  house,  does  not  constitute  the  offence  of 
keeping  a  house  of  prostitution;  People  v. 
Gastro,  7-">  Mich.  127,  42  X.  W.  937.  And 
receiving  unmarried  people  who  present 
themselves  as  husband  and  wife  at  a  hotel 
is  not  sufficient  to  convl  t  the  proprietor  of 
keeping  a  disorderly  home  without  pr< 
scienter;  People  v.  Drum,  127  App.  Div.  211. 
110  x.  Y.  Supp.  l' I 

The  keeper  of  such  house  may  be  in.'. 
for  keeping  a   public  nuisance;    Hardr.  ::it: 
People    v.    Clark,   1    Wheel.   Cr  N.   v.» 

290;    Com.  v.  Stewart,  l  S.  &  K.  (Pa 
Bacon,  Abr.   Nuisance*,  \:    4   Sharsw.   Ida. 

L67,   168,  aote  .    Kin  5  v.   p.    ;  :••.   • 
Y.   587;     Bx    parte  Birchfield,   52   Ala 
The  husband  must  be  joined  with  the  wife  in 
an  Indictment  to  suppress  a  disorderly  ! 
1    Show.    1  10. 

See  Words  and  Phrases,  vol.  ;'.,  pp.  2P>v. 
2110. 

DISORDERLY  PERSONS.  A  class  of  of- 
fenders described  in  the  statutes  which  pun- 
ish them.     See    t   Ida.  Com.  169. 

DISPARAGEMENT.  In  Old  English  Law. 
An  injury  by  union  or  comparison  with  some 
person  or  thing  of  Inferior  rank  or  excellence. 
lage  without  disparagement  was  mar- 
riage to  one  of  suitable  rank  and  character. 


DISPARAGEMENT 


888 


DISSAISINA 


2  Bla.  Com.  70 ;  Co.  Litt.  82  6.  The  guard- 
ian in  chivalry  had  the  right  of  disposing  of 
his  infant  ward  in  matrimony;  and  provid- 
ed he  tendered  a  marriage  without  dispar- 
agement or  inequality,  if  the  infant  refused, 
he  was  obliged  to  pay  a  valor  maritagii  to  the 
guardian. 

Disparagare,  to  connect  in  an  unequal  mar- 
riage. Spelman,  Gloss.  Disparagatio,  dis- 
paragement. Used  in  Magna  Carta  (9  Hen. 
III.),  c.  6.  Disparagation,  disparagement. 
Kelham.  Disparage,  to  marry  unequally. 
Used  of  a  marriage  proposed  by  a  guardian 
between  those  of  unequal  rank  and  injurious 
to  the  ward. 

DISPAUPER.  In  English  Law.  To  de- 
prive a  person  of  the  privilege  of  suing  in 
forma  pauperis. 

When  a  person  has  been  admitted  to  sue 
in  forma  pauperis,  and  before  the  suit  is  end- 
ed it  appears  that  the  party  has  become  the 
owner  of  a  sufficient  estate  real,  or  personal, 
or  has  been  guilty  of  some  wrong,  he  may  be 
dispaupered. 

DISPENSARY  LAW.  See  Liquor. 
DISPENSATION.  A  relaxation  of  law  for 
the  benefit  or  advantage  of  an  individual. 
In  the  United  States,  no  power  exists,  ex- 
cept in  the  legislature,  to  dispense  with  law : 
and  then  it  is  not  so  much  a  dispensation  as 
a  change  of  the  law. 

DISPLACE.  Used  in  shipping  articles, 
and,  when  applied  to  an  officer,  meaning 
properly  to  disrate,  not  to  discharge.  Pot- 
ter v.  Smith,  103  Mass.  68. 

DISPOSE.  To  alienate  or  direct  the  own- 
ership of  property,  as,  disposition  by  will. 
Elston  v.  Schilling,  42  N.  Y.  79;  see  Fling 
v.  Goodall,  40  N.  H.  219 ;  Phelps  v.  Harris, 
101  U.  S.  3S0,  25  L.  Ed.  855.  Used  also  of 
the  determination  of  suits ;  In  re  Russell,  13 
Wall.  (U.  S.)  664,  20  L.  Ed.  632.  Called  a 
word  of  large  extent;    Freem.  177. 

DISPOSSESSION.  Ouster;  a  wrong  that 
carries  with  it  the  amotion  of  possession. 
An  act  whereby  the  wrong-doer  gets  the  ac- 
tual occupation  of  the  laud  or  hereditament. 
It  includes  abatement,  intrusion,  disseisin, 
discontinuance,  deforcement.  3  Bla.  Com. 
167. 

DISPUTATIO  FORI  (Lat.).  Argument  in 
court.     Du  Cange. 

D  ISPUTE.  A  fact  is  properly  said  to  be  in 
dispute  when  it  is  alleged  by  one  party  and 
denied  by  the  other,  and  by  both  with  some 
show  of  reason.  Appeal  of  Knight,  19  Pa. 
494. 

DISQUALIFY.  To  incapacitate,  to  disable, 
to  divest  or  deprive  of  qualifications.  Mat- 
ter of  Maguire,  57  Cal.  606,  40  Am.  Rep.  125. 
DISRATI0NARE.  To  clear  oneself  from 
accusation ;  to  make  good  a  legal  claim ;  to 
prove.     Martin,   Record   Interpreter. 


DISSAISINA.  A  disseisin  or  disposses- 
sion ;  an  ejectment.     Skene. 

DISSECTION.  The  act  of  cutting  into 
pieces  an  animal  or  vegetable  for  the  purpose 
of  ascertaining  the  structure  and  use  of  its 
parts;  anatomy;  the  act  of  separating  into 
constituent  parts  for  the  purpose  of  critical 
examination.  Webster.  See  Dead  Body; 
Autopsy;  Death. 

DISSEISEE.  One  who  is  wrongfully  put 
out  of  possession  of  his  lands;  one  who  is 
disseised. 

DISSEISIN.  A  privation  of  seisin.  A 
usurpation  of  the  right  of  seisin  and  posses- 
sion, and  an  exercise  of  such  powers  and 
privileges  of  ownership  as  to  keep  out  or  dis- 
place him  to  whom  these  rightfully  belong. 
2  Washb.  R.  P.  2S3 ;    Mitch.  R.  P.  259. 

It  takes  the  seisin  or  estate  from  one  man 
and  places  it  in  another.  It  is  an  ouster  of 
the  rightful  owner  from  the  seisin  or  estate 
in  the  land,  and  the  commencement  of  a  new 
estate  in  the  wrong-doer.  It  may  be  by 
abatement,  intrusion,  discontinuance,  or  de- 
forcement, as  well  as  by  disseisin  properly 
so  called.  Every  dispossession  is  not  a  dis- 
seisin. A  disseisin,  properly  so  called,  re- 
quires an  ouster  of  the  freehold.  A  disseisin 
at  election  is  not  a  disseisin  in  fact ;  2  Pres. 
Abstr.  Titles  279;  but  by  admission  only  of 
the  injured  party,  for  the  purpose  of  trying 
his  right  in  a  real  action  ;  Co.  Litt.  277 ;  Lit- 
tle v.  Libby,  2  Greenl.  (Me.)  242,  11  Am.  Dec. 
68;  Doe  v.  Thompson,  5  Cow.  (N.  Y.)  371; 
Jackson  v.  Huntington,  5  Pet.  (U.  S.)  402,  8 
L.  Ed.  170 ;  Poignard  v.  Smith,  6  Pick.  (Mass.) 
172. 

Disseisin  may  be  effected  either  in  cor- 
poreal inheritances,  or  incorporeal.  Disseisin 
of  things  corporeal,  as  of  houses,  lands,  etc., 
must  be  by  entry  and  actual  dispossession  of 
the  freehold  :  as  if  a  man  enters,  by  force  or 
fraud,  into  the  house  of  another,  and  turns, 
or,  at  least,  keeps,  him  or  his  servants  out 
of  possession.  Disseisin  of  incorporeal  here- 
ditaments cannot  be  an  actual  dispossession ; 
for  the  subject  itself  is  neither  capable  of 
actual  bodily  possession  or  dispossession;  3 
Bla.  Com.  109,  170.  See  Poignard  v.  Smith,  6 
Pick.  (Mass.)  172 ;  Smith  v.  Burtis,  6  Johns. 
(N.  Y.)  197,  5  Am.  Dec.  218;  Ellicott  v. 
Pearl,  10  Pet.  (U.  S.)  414,  9  L.  Ed.  475 ;  Stet- 
son v.  Veazie,  11  Me.  408. 

In  the  early  law  every  disseisin  was  a 
breach  of  the  peace ;  if  perpetrated  with  vio- 
lence it  was  a  serious  breach.  The  disseisor 
was  amerced  never  less  than  the  amount  of 
the  damage ;  if  it  were  by  force  of  arms  he 
was  sent  to  prison  and  fined.  Besides  he  gave 
the  sheriff  an  ox,— "the  disseisin  ox,"— or 
five  shillings.  If  he  disseised  one  who  has 
already  recovered  possession  from  him  by  the 

assize,   this   was  a  still  graver  offence,   for 

which  he  was  imprisoned  by  statute.     The 


DISSEISIN 


S>!) 


DISSOLU'II-.N 


offender  was  a  redisseisor;   2  Poll.  &  Maitl. 
Hist,  of  Eng.  Law  45. 

See  Buying  Titles. 

DISSEISITUS.  One  who  has  been  dis- 
seised. 

DISSEISOR.  One  who  puts  another  out  of 
the  possession  of  his  lands  wrongfully. 

DISSENT.  A  disagreement  to  something 
which  has  been  done.  It  is  express  or  im- 
plied. 

The  law  presumes  that  every  person  to 
whom  a  conveyance  lias  been  made  has  given 
his  assent  to  it,  because  it  is  supposed  to  be 
for  his  benefit  To  rehut  the  presumption, 
his  dissent  must  be  expressed.  See  Brooks 
v.  Marbury,  11  Wheat,  rrj.  S.)  78,  <;  L.  Ed. 
423;  Wilt  v.  Franklin,  1  Binn.  (Pa.)  GUI'.  2 
Am.  Dee.  474;  Bowman  v.  Griffith,  35 
361,  53  x.  w.  1 10;  Crain  v.  Wright,  ill  N.  Y. 

307,  21   N.  B.    H»l.     ABSENT. 

In  Ecclesiastical  Law.  A  refusal  to  con- 
form to  the  rites  and  ceremonies  of  the  es- 
tablished Church.     2  Burn,  Eccl.   haw  165. 

DISSENTER.  One  who  refuses  to  con- 
form to  the  rites  and  ceremonies  of  the  es- 
tablished  church;  a  non-conformist.  2  Burn, 
Eccl.  Law  165. 

DISSENTIENTE  (Lat  dissenting).  Used 
with  the  name  or  names  of  one  or  more  judg- 
es, it  indicates  a  dissenting  opinion  in  a  case. 
Jfemime  diasentiente.  No  one  dissenting; 
unanimous. 

DISSENTING  OPINIONS.  See  Prece- 
dent. 

DISSOLUTION.  The  dissolution  of  a  con- 
tract is  the  annulling  its  effects  between  the 
contracting  parties. 

The  dissolution  of  a  partnership  is  the  put- 
ting an  end  to  the  partnership.  Its  dissolu- 
tion does  not  affect  contracts  made  Vlween 
the  partnership  and  others ;  so  that  it  is  en- 
titled to  all  its  rights,  and  liable  on  its  obliga- 
tions, as  if  it  had  not  been  dissolved.  See 
Partnkhsiiip. 

Of  Corporations.  Dissolution  of  corpora- 
tions takes  place  by  act  of  legislature  (but 
in  America  only  by  consent  of  the  corpora- 
tion, or  where  the  power  to  dissolve  baa  been 
reserved  by  the  legislature) ;  by  the  loss  of 
all  the  members,  or  an  integral  part  of  them; 
by  a  surrender  of  the  charter;  by  the  ex- 
piration of  the  period  for  which  it  was  char- 
tered; by  proceedings  Cor  the  winding  up  of 
the  company  under  the  law;  or  by  a  for- 
feiture of  the  franchises,  for  abuse  of  its 
powers.  Where  a  method  of  procedure  for 
dissolution  has  been  prescribed  by  statute,  as 
is  now  usual,  such  method  is  exclusive;  Kohl 
v.  Lilienthal,  81  Cal.  378,  20  Tac.  401,  21'  Pac. 
6S0.  0  L.  R.  A.  520. 

The  loss  of  memhers  will  not  work  a  dis- 
solution, so  long  as  enough  memhers  remain 
to  fill  vacancies;  State  v.  Trustees.  5  ind. 
77 ;   McGinty  v.  Reservoir  Co.,  153  Mass.  183, 


29  X.  E.  510;    nor  does  a  failure  to  elect  of- 
ficers;   Com.  v.  Cullen,  13   Pa.   133,   53  Am. 
Dec.  450;    Evarts  v.  Mfg.  Co.,  20  ( 
United  States  Electric  Lighting  <'".  v.  i.eiter, 
19  D.  O.  575;   Rose  v.  Turnpike  Na.Ua 

(Pa.)  46  ;    or  trustees ;    B] 
U.  S.  131,  26  Sup.  Ct  201,  50  L.  1 
of  an   e  .ration ;     \ 

University   v.    Indiana,   1  l    How.   (1 
14   L.   Ed.   41G;     nor  does   the 
all  the  officers  of  a  corporation  work  . 
solution;     Muscatine  Turn    Veiein    v.    1 
is  la.  469;   hut  it  is  said  that  a  municipal  or 
charitable  corporation  may  hi'  dit  olved  bj 
>s   of   all   its    memhers,    although    this 
mode  of  dissolution  cannot  take  pli 
ease  of  business  corporations  which  have  a 
transferable   joint    stock,    because    the 
porate  shares,  being  personal  property,  must 
always  belong  to  SOI  and  BUCb  per- 

son must  of  necessity  be  a  member  of  the 
corporation;    5  Thomp.  Corp.  S  6652;    B 
Glass    Manufactory    v.    i-mu'don,    24    Pick. 
(.Mass.)  -1!».  ::.">  Am.  Dec.  292.     And  even  where 
all  the  shares  of  stock  pass  into  the  ha: 
less   than   the   prescribed    Dumber  of   stock- 
holders, there  is  no  dissolution,  even  t. 
they  may  have  passed  into  the  hands  of  tlDO 
is;      Russell    v.    McLellan,    14    Pick. 
(Mass,  i    63;   or  of  a  8ingU    person:    N< 
Mfg.  Co.  v.  White.  42  Ga.   11^:  and  such  per- 
son could  carry  on  the  corporate  business;  id. 
See  Stoc  ehozj 

Ordinarily,  a  corporation  may  by  a  ma- 
jority vote  surrender  its  franchises;  Mc<ur- 
dy  v.  Myers,  14  Pa.  535;  Black  v.  Canal  •',,.. 
22  N.  J.  Eq.  104;  Tread  well  v.  Mfg.  Co.,  7 
Gray  (Mass.  i  393,  66  Am.  Dec  490;  Si 
Woolen  Mills  Co.,  115  Tenn.  266,  89  B.  W. 
741,  2  L.  R.  A.  (X.   S.i  493,   112  Am.   St.  Rep. 

825;  Hitch  v.  Hawley,  132  :;.  Y.  221. 
E.  401;  but  such  a  surrender  must  be  a 
ed  by  the  state;  Wilson  v.  Proprietors  ol 
Centra]  Bridge,  0  R.  I.  590;  excepting  where 
ickholders  are  liable  for  the  debts;  La 
Grange  &  M.  It.  Co.  v.  Rainey,  7  Cold.  (Tenn.) 
420.  A  corporation  is  not  dissolved  or  its 
franchises  forfeited  by  its  insolvency  and  as- 
signment of  its  assets  for  the  benefit  of  its 

Creditors,  where  the  state  !  ri 

•  have  the  charter  forfeited,  and  there 
is  no  surrender  thereof  by  act  of 
holders;    State  v.    Butler,  86  Tenn.   61  ' 

v.  Bank,  1 1  Cok).  97,  17  Pac 
280;   Adams  v.  Milling  Co.,  3 

A    Don-user    of  corpora'.  a    not 

of  it-elf  work  a   dissolution,   even   though   it 
he  for   twenty   years:     Laritan   Water    I 
Co.   v.   Veghte,   21    X.  J.    Eq.   463;    1  □ 
Strickland    v.    Prichard,  -'».    where 

■  ad   1 een   no   corporate  acts  peri 
for  :_'.".  years  and  it  was  held  there  was  a  dis- 
solution.    The  question  is  oi  and 
intent;     5    Tlmmp.    C                             The    fact 
that  a  eoi]  (nation  has  ceased  to  do  hi: 
and  has  made  an  assignment  of  all  its  prop- 


DISSOLUTION 


890 


DISSOLUTION 


erty  for  the  payment  of  its  debts  and  for 
several  years  held  no  annual  meetings  or 
elected  directors,  does  not  work  a  dissolution 
to  the  extent  of  preventing  its  maintaining 
an  action  for  a  debt  due  it ;  id.  §  6GG0.  The 
sale  of  the  property  and  franchises  of  a  cor- 
poration in  foreclosure  proceedings  does  not, 
ipso  facto,  work  a  dissolution.  It  will  pass 
the  franchise  of  the  company  to  operate  or 
enjoy  the  particular  property  foreclosed,  but 
not  its  primary  franchise  to  be  a  corpora- 
tion;  5  Thomp.  Corp.  §  6662  (but  that  the 
corporation  is  extinguished  by  such  a  sale, 
see  37  Mo.  131).  The  insolvency  of  a  corpo- 
ration or  the  appointment  of  a  receiver  there- 
for does  not  work  a  dissolution;  Boston 
Glass  Manufactory  v.  Langdon,  24  Pick. 
(Mass.)  49,  35  Am.  Dec.  292. 

As    to    dissolution    by    consolidation,    see 
Merger. 

The  forfeiture  of  a  charter  by  misuser  or 
nonuser  is  complete  only  upon  a  final  adjudi- 
cation  thereof  in   a   competent  court,    upon 
proper  proceedings  at  the  suit  of  the  govern- 
ment which  created  the  corporation,  and  in 
the  courts  of  such  government ;   Mo  raw.  Priv. 
Corp.  959,  1015 ;   the  existence  of  the  charter 
cannot  be  attacked  collaterally,  or  by  an  in- 
dividual ;  Proprietors  of  Charles  River  Bridge 
v.    Proprietors   of    Warren    Bridge,    7   Pick. 
(Mass.)  344;    Chesapeake  &  O.  Canal  Co.  v. 
R.  Co.,  4  G.  &  J.  (Md.)  1.    But  when  the  leg- 
islature has  reserved  the  right  to  revoke  a 
charter  for  abuse  of  its  privileges  or  failure 
to  perform  a  condition,  it  may  enact  the  re- 
peal at  the  proper  time ;    Crease  v.  Babcock, 
23  Pick.  (Mass.)  334,  34  Am.  Dec.  61;    Erie  & 
N.  E.  R.  Co.  v.  Casey,  26  Pa.  287 ;    and  such 
repealing  act  will  be  held  constitutional  un- 
less the  company  can  show  by  plain  and  sat- 
isfactory evidence  that  the  privileges  grant- 
ed under  the  charter  were  not  misused  or 
abused;    id.     The  courts  will  not  presume 
that  the  power  of  repeal  has  been  improper- 
ly exercised ;   5  Thomp.  Corp.  §  6579.    Where 
the  legislature  reserves  the  unqualified  right 
of  repeal  upon  the  happening  of  a  certain 
condition,  it  is  exclusively  within  its  power 
to  determine  whether  the  condition  has  hap- 
pened, and  a  previous  judicial  determination 
of  that  fact  is  not  necessary;  id.;  Erie  &  N. 
E.  R.  Co.  v.   Casey,  26  Pa.  287;    Crease  v. 
Babcock,  23  Pick.  (Mass.)  334,  34  Am.  Dec. 
61;    Myrick  v.  Brawley,  33  Minn.  377,  23  N. 
W.  549.    And  so  where  there  is  a  right  of  re- 
peal in  the  legislature  in  case  the  corporation 
misuses  its  franchises;    Erie  &  N.  E.  R.  Co. 
v.  Casey,  26  Pa.  287.     Such  misuse  or  abuse 
of  corporate  privileges  consists  in  any  posi- 
tive act  in  violation  of  the  charter  and  in 
derogation  of  public  right,  wilfully  done  or 
caused  to  be  done  by  those  appointed  to  man- 
age the  general  concerns  of  the  corporation ; 
id.     Where  a   franchise  is  granted   with   a 
provision  that  if  not  exercised  in  a  specified 
time  it  shall  be  void,  upon  the  expiration  of 


the  time  without  the  performance  of  the  con- 
dition, the  charter  falls  without  any  action 
on  the  part  of  the  state  to  declare  its  for- 
feiture; Com.  v.  Water  Co.,  110  Pa.  391,  2 
Atl.  63;  Elizabethtown  Gas  Light  Co.  v. 
Green,  46  N.  J.  Eq.  118,  18  Atl.  S44;  In  re 
Brooklyn,  W.  &  N.  Ry.  Co.,  81  N.  Y.  69.  But 
other  cases  hold  that  the  charter  is  not  for- 
feited until  action  by  the  state  either  legisla- 
tive or  judicial;  Hovelnmn  v.  It.  Co.,  79  Mo. 
(i:;2  ;  Davis  v.  Gray,  10  Wall.  (U.  S.)  203,  21 
L.  Ed.  447;  Chicago  City  Ry.  Co.  v.  People, 
73  111.  541.  The  former  view  is  strongly 
maintained  in  5  Thomp.  Corp.  §  6586.  If  the 
charter  or  the  statute  under  which  it  is 
granted  names  a  definite  period  for  the  life 
of  the  corporation,  the  corporation  is  dis- 
solved ipso  facto,  upon  the  expiration  of  that 
period  without  any  action  either  on  the  part 
of  the  state  or  of  the  members  of  the  corpo- 
ration ;  People  v.  R.  Co.,  76  Cal.  190,  18  Pac. 
308;  Scanlan  v.  Crawshaw,  5  Mo.  App.  337. 
•The  incapacity  to  revive  or  resuscitate  the 
powers  of  a  corporation  may  arise  from  three 
causes:  1.  The  absence  of  the  necessary  of- 
ficers who  are  required  to  be  present  when 
the  deficiency  is  supplied,  or  their  incapacity 
or  neglect  to  do  some  act  which  is  requisite 
to  the  validity  of  the  appointment;  2.  The 
want  of  the  necessary  corporators  who  are 
required  to  unite  in  the  appointment ;  3.  The 
want  of  the  proper  persons  from  whom  the 
appointment  is  to  be  made."  5  Thomp.  Corp. 
§  6658. 

Upon  a  dissolution,  the  assets  of  all  kinds 
are  a  trust  fund  for  the  payment  of  debts, 
and  afterwards  for  distribution  among  the 
stockholders ;  Lathrop  v.  Stedman,  13  Blatch. 
134,  Fed.  Cas.  No.  8,519 ;  Blake  v.  R.  Co.,  39 
N.  H.  435;  Huber  v.  Martin,  127  Wis.  412, 
105  N.  W.  1031,  1135,  3  L.  R.  A.  (N.  S.)  653, 
115  Am.  St.  Rep.  1023,  7  Ann.  Cas.  400;  Late 
Corporation  of  Church  of  Jesus  Christ  of 
Latter-Day  Saints  v.  U.  S.,  136  U.  S.  1,  10 
Sup.  Ct,  792,  34  L  Ed.  47S;  Temperance 
Mut.  Ben.  Ass'n  v.  Socijety,  1S7  Pa.  38,  40 
Atl.  1100 ;  15  Harv.  L.  Rev.  743 ;  15  L.  Q. 
Rev.  115. 

The  ancient  rule  of  the  common  law  was 
supposed  to  be  that  upon  the  termination  of 
a  corporation  its  real  estate  reverted  to  the 
grantor  and  its  personalty  to  the  sovereign; 
Titcomb  v.  Ins.  Co.,  79  Me.  315,  9  Atl.  732; 
Kent  (13th  ed.)  307.  See  Huber  v.  Martin,  127 
Wis.  412,  105  N.  W.  1031,  1135,  3  L.  R.  A. 
(N.  S.)  653,  115  Am.  St.  Rep.  1023,  7  Ann. 
Cas.  400.  This  rule  has  long  been  obsolete, 
if  it  ever  was  the  law,  except  as  regards  pub- 
lic or  religious  corporations;  Late  Corpora- 
tion of  the  Church  of  Jesus  Christ  of  Latter- 
Day  Saints  v.  U.  S.,  136  U.  S.  1,  10  Sup.  Ct. 
792,  34  L.  Ed.  478.  It  has  been  repudiated 
in  the  United  States  as  to  business  corpora- 
tions;  Huber  v.  Martin,  127  Wis.  412,  105 
N.  W.  1031,  3  L.  R.  A.  (N.  S.)  653,  115  Am. 
St.  Rep.  1023,  7  Ann.  Cas.  400;   Baldwin  v. 


DISSOLUTION 


891 


: 


Johnson,  95  Tex.  85,  65  S.  W.  171;  Mora- 
wetz,  Priv.  Corp.  §  1032;  Late  Corporation 
of  the  Church  of  Jesus  Christ  of  Latter-Day 
Saints  v.  U.  S.,  13G  U.  S.  1,  10  Sup.  Ct.  792, 
:;4  L.  Ed.  478;  Bacon  v.  Robertson,  18  How. 
(U.  S.)  4S0,  15  L.  Ed.  499. 

In  England  it  is  said  there  is  no  instance 
on  record  that  the  doctrine  was  ever  applied 
by  any  English  court;  [1S99]  1  Q.  B.  325. 
But  it  is  said  that  the  doctrine  that  at  dis- 
solution the  lands  of  a  corporation  revert  to 
the  donor  was  almost  universally  accepted 
in  the  English  cases  before  1800.  Prof.  YVil- 
liston,  in  Business  Corp.  before  1S00,  3  Sel. 
Essays,  Anglo-Amer.  Leg.  Hist  2.;:;. 

As  to  a  public  or  charitable  corporation  the 
ancient  rule  still  prevails  that  upon  dissolu- 
tion its  personal  property,  like  that  of  a  man 
dying  without  heirs,  ceases  to  be  the  subject 
of  private  ownership  and  becomes  subject  to 
the  disposal  of  the  sovereign  authority,  while 
the  real  estate  reverts  to  the  grantor  or  donor 
unless  it  is  otherwise  provided  by  statute ; 
Late  Corporation  of  the  Church  of 
Christ  of  Latter-Day  Saints  v.  U.  S.,  136  U. 
S.  1,  47,  10  Sup.  Ct.  792,  34  L.  Ed.  47S,  where 
it  was  held  that  the  property  of  the  Mormon 
church  became  vested  in  the  United  States. 

On  the  dissolution  of  a  Louisiana  corpora- 
tion owning  land  in  Texas,  it  was  held  that 
the  stockholders  became  tenants  in  common 
of  such  land ;  Baldwin  v.  Johnson,  95  Tex. 
85,  65  S.  W.  171.  The  title  to  the  land  of  an 
eleemosynary  corporation  reverts  on  its  dis- 
solution to  the  original  owner  without  any 
act  on  his  part;  Mott  v.  Danville  Seminary, 
129  111.  403,  21  N.  E.  927.  But  it  is  held  that, 
upon  the  dissolution  of  a  charitable  corpora- 
tion, the  property  must  be  appropriated  by 
the  court  to  the  purposes  most  nearly  akin 
to  the  intent  of  the  donors;  it  does  not  re- 
vert to  the  donors;  Centennial  «fc  .Memorial 
Ass'n  of  Valley  Eorge,  235  Pa.  200,  S3  Atl. 
6S3. 

Actions  at  law  brought  against  a  pri- 
vate corporation  abate  upon  its  dissolution; 
Life  Ass'n  v.  Goode,  71  Tex.  90,  8  S.  \V.  639; 
contra,  Greenbrier  Lumber  Co.  v.  Ward,  30 
W.  Va.  43,  3  S.  E.  227;  Breene  v.  Bank.  11 
Colo.  97,  17  Pac.  280.  Dissolution  puts  an 
end  to  all  existing  contracts.  It  works  a 
breach  of  the  contract;  Green's  Brlce,  Ultra 
Vires  803.  See  State  Bank  v.  State.  1  Black! 
(Ind.)  267,  12  Am.  Dee.  'j::'.);  Schleider  v. 
Dielman,   44    La.    Ann.   4(12,   10   South.   934 

Since  the  dissolution  of  a  corporation,  ei- 
ther by  its  own  limitation  or  by  the  decree 
of  a  court  of  competent  jurisdiction,  puts  an 
end  to  its  legal  existence,  it  can  thereafter 
neither  prosecute  nor  defend  an  action.  Ac- 
cordingly, in  the  absence  of  statutory  reser- 
vations (which,  however,  generally  o\ 
on  the  dissolution  of  a  corporation  all  anions 
pending  against  it  abate;  Mnmma  v.  Poto- 
mac Co.,  8  Pet  (P.  s.i  281,  8  L  Ed.  945; 
First  Nat  Bank  v.  Colby,  21  Wall.  (U.  S.)  609, 


22  L  Ed.  GS7;    City  Ins.  Co.  v.  Bank,  6S  111. 

::is;    Merrill  v.  1  Dec. 

049;   Thornton  v.  R.  Co.. 

Culloch  v.  Norwi 

v.  Goode,  71  Tex.  90, 

suit  has  been  commenced  by  al 

lion  will  destroy  the  attachment 
Wilcox  v.  1 1 

Farmers'  &  Mecl  lank  v.  I.. 

&  s.  (Pa.)  207,  42  Am.  Dec.  293;  on 
ed  into  a  Judgment  at  t: 
solution,  and  this,  whether  the  atta 
original  or  is  sued  out  in  aid  of  a 
action. 

Under  the  statutes  providing  for  the 
Ing  alive  of  actions  which  would  otherwise 
abate  on  the  dissolution  of  a  corporation,  it 
is  not  quite  settled  whether  the  same  prin- 
ciples apply  as  those  which  apply  to  the  sur- 
vival of  actions  on  the  death  of  a  natural  per- 
son ;  but  the  weight  of  authority  is  in  favor 
of  the  affirmative;  Hepworth  v.  Ferry  Co., 
62  Hun  257.  16  N.  Y.  Supp.  692;  Mil- 
Mut  Fire  Ins.  Co.  v.  Sentinel  Co.,  81  Wis. 
207,  ."1  X.  VV.  4  10,  15  L.  K.  A. 

See  I  ::   FRANCHISE. 

In  Practice.    The  act  of  rendering  a 
proceeding   null,  or  changing  its  character; 
as  where  an  atta'  •   r  as 

it  is  a  lien  on  property  by  entering  bail  or 
security  to  the  action ;  or  as  injunctions  are 
dissolved  by  the  court 

DISSUADE.     To  dissuade  a  witness  from 
giving  evidence  against  a  person  indicl 
an  indictable  offence  at  common  law:  Hawk. 
PI.  Cr.  b.  1,  c.  21,  s.  15.     The  mere  atl 
to   stifle  evidence  is  also  criminal  alt: 
the   persuasion    should   not    succeed,    on    the 
general  principle  that  an  incil  •  com- 

mit a  crime  is  in  itself  criminal; 
21;    6  id.  454;    2  Stra.  904;  2  Leach  925. 

DISTANCE.  The  rule  is  that  the  distance 
between  given  points  should  be  measured  in 
a  straight  Hi  e;  5  E.  &  B.  92;  0  id.  350;  8 
L.  R.  Exch.  32.  But  in  a  rule  of  court  as  to 
service  the  distance  has  been  taken  by  the 
usual  road;  Smith  v.  Ingraham,  7  Cow.  (X. 
Y.)  419. 

DISTILLERY.     A  place  or  building  where 
alcoholic   liquors   are  distilled   or   mat 
cured.    See  r.  S.  v.  Tenbroek,  Pet 

Fed.  Caa  No.  l'''.!  i!'-:  a  |  Jt  ly   13,   IS 
Stat.  L.  117;  AtlantJ  by,  45 

N.    Y.  mtic   Doel;    C.   v.    Leavitt,  54 

X.   Y.  35,   1.".   Am,    B 

DISTRACTED    PERSON.     A  term   used   in 
the  statutes  of  Illinois.    Rev.  I.av. 
332,  and   New   Hampshire,   Dig.   Laws 

•  I  y. 

DISTRACTI0.  In  Civil   Law.     The  sale  of 

a  pledge  by  a  d  I  'he  appropriation  of 

:y  of  a  ward  by  a  guardian.     Cal- 
viuus,  Lex. 


DISTRAHERE 


892 


DISTRESS 


DISTRAHERE.  To  withdraw;  to  sell. 
Oistrahere  controversias,  to  diminish  and 
settle  quarrels ;  distrahere  matrimoniam,  to 
dissolve  marriage ;  to  divorce.     Calvinus,  Lex. 

DISTRAIN.  To  take  as  a  pledge  property 
of  another,  and  keep  the  same  until  he  per- 
forms his  obligation  or  until  the  property  is 
replevied  by  the  sheriff.  It  was  used  to  se- 
cure an  appearance  in  court,  payment  of 
rent,  performance  of  services,  etc.  3  Bla. 
Com.  231;  Fitzh.  N.  B.  32  (B)  (C),  223; 
Boyd  v.  Howden,  3  Daly  (N.  Y.)  455.  See 
Distress. 

DISTRESS  (Fr.  distraindre,  to  draw  away 
from;  Lat.  districtio).  The  taking  of  a  per- 
sonal chattel  out  of  the  possession  of  a 
wrong-doer  into  the  custody  of  the  party  in- 
jured, to  procure  satisfaction  for  the  wrong 
done.  3  Bla.  Com.  6;  Hard  v.  Nearing,  44 
Barb.  (N.  Y.)  4S8.  It  is  generally  resorted 
to  for  the  purpose  of  enforcing  the  payment 
of  rent,  taxes,  or  other  duties,  as  well  as 
to  exact  compensation  for  such  damages  as 
result  from  the  trespasses  of  cattle.  Correct- 
ly speaking,  one  distrains  a  man  by  (per)  a 
thing.     2  Poll.  &  Maitl.  576. 

This  remedy  is  of  great  antiquity,  and  is  said  by 
Spelman  to  have  prevailed  among  the  Gothic  na- 
tions of  Europe  from  the  breaking  up  of  the  Roman 
Empire.  But  in  a  recent  work  the  opinion  is  ex- 
pressed that  distress  before  judicial  proceedings 
had  been  taken  is  not  very  old.  1  Poll.  &  Maitl. 
Hist.  Engl.  Law  334.  Distress  was  not  a  means 
whereby  the  distrainor  could  satisfy  the  debt  clue 
him ;  ibid.  After  distress  the  lord  might  not  sell 
the  goods ;  they  were  not  in  his  possession,  but 
were  in  custodia  legis,  and  he  must  be  ready  to  give 
them  up  if  the  tenant  tendered  arrears  or  offered 
gage  and  pledge  that  he  would  contest  the  claim  in 
a  court  of  law.  The  lord  could  not  take  what  he 
liked  best  among  the  chattels  that  he  found  ;  2  id. 
574.  The  English  statutes  since  the  days  of  Magna 
Charta  have,  from  time  to  time,  extended  and  mod- 
ified its  features  to  meet  the  exigencies  of  the 
times.  Our  state  legislatures  have  generally,  and 
with  some  alterations,  adopted  the  English  provi- 
sions, recognizing  the  old  remedy  as  a  salutary  and 
necessary  one,  equally  conducive  to  the  security  o£ 
the  landlord  and  to  the  welfare  of  society.  As  a 
means  of  collecting  rent,  however,  it  has  become  un- 
popular in  some  states  as  giving  an  undue  advan- 
tage to  landlords  over  other  creditors  in  the  col- 
lection of  debts.  See  Woglam  v.  Cowperthwaite,  2 
Dall.  (U.  S.)  68,  1  L.  Ed.  292  ;  Hartshorne  v.  Kier- 
man,  7  N.  J.  L.  29  ;  Garrett  v.  Hughlett,  1  Harr.  & 
J.  (Md.)  3;  Charleston  v.  Price,  1  McCord  (S.  C.) 
299;  Owens  v.  Conner,  1  Bibb  (Ky.)  607;  Mayo  v. 
Winfree,  2  Leigh  (Va.)  370;  Burket  v.  Boude,  3 
Dana    (Ky.)   209.    . 

In  the  New  England  states  the  law  of  attachment 
on  mesne  process  has  superseded  the  law  of  dis- 
tress;  Potter  v.  Hall,  3  Pick.  (Mass.)  368,  15  Am. 
Dec.  226 ;  4  Dane,  Abr.  126.  New  York  has  ex- 
pressly abolished  it  by  statute.  Acts  of  1846,  ch. 
274.  This  statute  was  held  constitutional  and  valid 
as  against  a  lease  of  prior  date  which  provided  for 
the  remedy ;  Van  Rensselaer  v.  Snyder,  13  N.  Y. 
299  ;  Conkey  v.  Hart,  14  N.  Y.  22,  It  being  held  a 
mere  change  of  remedy  ;  but  such  a  statute  would 
not  apply  when  the  goods  had  been  seized  ;  Dutch- 
er  v.  Culver,  24  Minn.  584.  The  courts  of  North 
Carolina  hold  it  to  be  inconsistent  with  the  spir- 
it of  her  laws  and  government,  and  declare  that 
the  common  process  of  distress  does  not  exist  in  that 
state;  Youngblood  v.  Lowry,  2  McCord  (S.  C.)  39, 
13  Am.  Dec.  698  ;  Dalgleish  v.  Grandy,  1  N.  C.  249  ; 
to  the  same  effect  are  the  laws  of  Missouri;    Crock- 


er v.  Mann,  3  Mo.  472,  26  Am.  Dec.  684.  In  Ohio, 
Tennessee,  and  Alabama  there  are  no  statutory  pro- 
visions on  the  subject,  except  In  the  former  state  to 
secure  to  the  landlord  a  share  of  the  crops  in  pref- 
erence to  an  execution  creditor,  and  one  in  the  lat- 
ter, confining  the  remedy  to  the  city  of  Mobile ; 
McLeod  v.  McDonnel,  6  Ala.  239.  Mississippi  has 
abolished  it  by  statute ;  but  property  cannot  be 
taken  in  execution  on  the  premises  unless  a  year's 
rent,  if  it  be  due,  is  first  tendered  to  the  landlord, 
who  has  also  a  lien  on  the  growing  crop  ;  Arbuckle 
v.  Nelms,  50  Miss.  556 ;  to  the  same  effect  are  the 
statutes  of  "Wisconsin ;  Wis.  Laws  1866,  p.  77.  In 
Colorado  a  landlord  cannot  distrain  unless  in  pur- 
suance of  an  express  agreement ;  Herr  v.  Johnson, 
11   Colo.   393,   18  Pac.   342. 

To  authorize  a  distress  there  must  be  a 
fixed  rent  in  money,  produce  or  services ; 
it  may  be  by  parol  and,  if  not  certain,  it 
must  be  capable  of  being  reduced  to  a  cer- 
tainty ;  Co.  Litt.  96  a ;  Miles  v.  Stevens,  3 
Pa.  31,  45  Am.  Dec.  621;  Jacks  v.  Smith,  1 
Bay  (S.  C.)  315;  and  hence  it  will  not  lie 
on  an  agreement  to  pay  no  rent,  but  make 
repairs  of  uncertain  value;  Grier  v.  Cowan, 
Add.  (Pa.)  347;  a  distress  for  a  rent  of  a 
certain  quantity  of  grain,  may  name  the 
value  in  case  of  tender  of  arrears  or  sale 
of  the  property ;  Warren  v.  Forney,  13  S.  & 
R.  (Pa.)  52.  See  Jones  v.  Gundrim,  3  W.  & 
S.   (Pa.)  531. 

A  distress  can  only  be  taken  for  rent  in 
arrear,  and  not  until  the  day  after  it  is 
due  ( which  may  be  in  advance) ;  Russell 
v.  Doty,  4  Cow.  (N.  Y.)  576;  Williams  v. 
Howard,  3  Munf.  (Va.)  277;  First  Nat. 
Bank  of  Joliet  v.  Adam,  138  111.  483,  28  N. 
E.  955.  But  no  previous  demand  is  neces- 
sary, except  where  the  lease  requires  it; 
Almand  v.  Scott,  83  Ga.  402,  11  S.  E.  653. 
Nor  will  the  right  be  extinguished  either  by 
an  unsatisfied  judgment  for  the  rent  or  by 
taking  a  promissory  note  therefor,  unless 
such  note  has  been  accepted  in  absolute  pay- 
ment of  the  rent;  Bates  v.  Nellis,  5  Hill 
(N.  Y.)  651. 

It  may  be  taken  for  any  kind  of  rent,  the 
detention  of  which  beyond  the  day  of  pay- 
ment is  injurious  to  him  who  is  entitled  to 
receive  it. 

At  common  law,  the  distrainer  must  have  pos- 
sessed a  reversionary  interest  in  the  premises  out  of 
which  the  distress  issued,  unless  he  had  expressly 
reserved  a  power  to  distrain  when  he  parted  with 
the  reversion;  Cornell  v.  Lamb,  2  Cow.  (N.  Y.) 
652  ;  1  Term  441 ;  Co.  Litt.  143  b.  But  the  English 
statute  of  4  Geo.  II.  c.  28,  substantially  abolished 
all  distinctions  between  rents,  and  gave  the  remedy 
in  all  cases  where  rent  is  reserved  upon  a  lease. 
The  effect  of  the  statute  was  to  separate  the  right 
of  distress  from  the  reversion  to  which  it  had  be- 
fore been  incident,  and  to  place  every  species  of 
rent  upon  the  same  footing  as  if  the  power  of  dis- 
tress had  been  expressly  reserved  In  each  case. 

A  distress  may  be  made  by  each  one  of 
several  joint  tenants  for  the  whole  rent  or 
they  may  all  join  together;  4  Bingh.  562;  2 
Ball  &  B.  465;  by  tenants  in  common,  each 
for  his  separate  share;  1  McCl.  &  Y.  107; 
Cro.  Jac.  611;  unless  the  rent  be  entire,  as 
of  a  house,  in  which  case  they  must  all  join ; 
Co.  Litt.  197  o;  5  Term  246;  a  husband  as 


DISTRESS 


893 


. 


tenant  by  the  curtesy  for  rent  due  to  his 
wife,  although  due  to  her  as  executrix  or 
administratrix;  2  Saund.  195;  a  widow  aft- 
er dower  has  been  admeasured  for  her  third 
of  the  rent;  Co.  Litt.  32a;  an  heir  at  law,  or 
devisee,  for  that  which  becomes  due  to  them 
respectively,  after  the  death  of  the  ancestor, 
in  respect  to  their  reversionary  estate; 
Wright  v.  Williams,  5  Cow.  (N.  X.)  601;  1 
Saund.  287;  and  guardians,  trustees,  or 
agents  who  make  leases  in  their  own  names, 
as  well  as  the  assignee  of  the  reversion  which 
is  subject  to  a  lease;  Sloeum  v.  Clark,  2  Hill 
(N.  Y.)  475;  5  C.  &  P.  379.  Payment  of  rent 
is  sufficient  attornment  to  enable  the  party 
to  whom  the  payment  is  made  to  make  a  dis- 
tress; Walker  v.  McDonald,  28  111.  App.  643. 
Generally  all  goods  found  upon  the  prem- 
ises, whether  of  tenant,  under-tenant,  or 
stranger,  may  be  distrained  for  rent  in  ar- 
rear;  Spencer  v.  McGowen,  13  Wen, I.  (N.  Y.) 
256;  Kessler  v.  McConachy,  1  Kawle  (Pa.) 
435;  Howard  v.  Ransay,  7  H.  &  J.  (Mil. ) 
120;  Davis  v.  Payne's  Adm'r,  4  Rand.  (Ya.i 
334;  Reeves  v.  McKenzie,  1  Bail.  (S.  C.) 
497;  Com.  Dig.  Distress  (B  1).  Thus,  a  gen- 
tleman's chariot  in  a  coach-house  of  a  livery- 
stable  keeper  was  distrainable  by  the  laud- 
lord  of  the  livery-stable  keeper;  3  Burr. 
1498;  cattle  put  on  the  tenant's  land  by 
consent  of  the  owners  of  the  beasts,  are 
distrainable  by  the  landlord  Immediately  aft- 
er for  rent  in  arrear;  3  Bla.  Com.  8;  and 
furniture  leased  to  a  tenant,  and  used  by 
him  on  the  demised  premises,  is  subject  to 
the  landlord's  right  of  distress  for  rent; 
Myers  v.  Esery,  134  Pa.  177,  19  Atk  is*. 
The  necessity  of  this  rule  is  justified  by  the 
consideration  that  the  rights  of  the  landlord 
would  be  liable  to  be  defeated  by  a  great 
variety  of  frauds  and  collusions,  if  his  reme- 
dy should  be  restricted  to  such  goods  only 
as  he  could  prove  to  be  the  property  of  the 
tenant. 

Goods  of  a  person  who  has  some  interest 
in  the  land  jointly  with  the  distrainor,  as 
those  of  a  joint  tenant,  although  found  up- 
on the  land,  cannot  be  distrained;  nor  goods 
of  executors  and  administrators,  or  of  the 
assignee  of  an  insolvent  regularly  discharged 
according  to  law,  in  Pennsylvania,  for  more 
than  one  year's  rent.  Nor  can  the  goods  of 
a  former  tenant,  rightfully  on  the  land,  be 
distrained  for  another's  rent,  as  emblements, 
or  growing  crops  of  a  tenant  at  will  quitting 
on  notice,  even  after  they  are  reaped,  if  they 
remain  on  the  land  for  the  purpose  of  hus- 
bandry; Willes  131;  or  in  the  hands  of  a 
vendee  they  cannot  be  distrained  although 
the  purchaser  allow  them  to  remain  uncul 
after  they  have  come  to  maturity;  2  Ball  & 
B.  362;  5  J.  B.  Moo.  97.  If  a  tenant  seek 
to  remove  from  the  premises  any  portion  of 
the  crops  before  the  rent  is  due,  he  is  sub- 
ject to  distraint  immediately;  Daniel  v.  Har- 
ris, 84  Ga.  479,  10  S.  E.  1013. 


As  a  distress  is  only  of  the  property  of  the 
tenant,  things  wh<  can  have  no  ab- 

solute ]>]■  rabbits,  and 

animals   feni    nat\  lined  ; 

yet  deer,    which  are   of   a    wild   natui 
in  a  private  enclosure  tor  sale  or  pi   :it.  may 
be  distrained  for  rent;  a.  7.    Th< 

can  be  no  distress  of  such   I  cannot 

be  restored  to  the  owner  In 
as  when  taken,  as  milk,  fruit,  and  i! 
::  Bla.  Coin.  '••;  or  thing 
to  th<-  freehold,  as  furnaces,  wind 
and  the  like;  Co.   Lltl     it  6 ;   or  i     entially 
part  of  the  freehold  although  for  a  ti 

moved   therefrom,   as  a   mi1:  ■    to 

lie   lacked;    or   an    anvil    fixed    in   a   smith's 
shop;  6  Price  3;  1  Q.  B.  B95;  3  «</.  961. 

Goods  are  also  privileged   In  cases  where 
the  proprietor  is  either  compelled  from  ne- 
cessity to  place  his  goods  upon  the  land,  or 
where  he  does  so  for  commercial  purp 
Brown  v.  Sims,  17  S.  &   R.    (Pa.)    V-'-<:  Hos- 
kins  v.  Paul.  9  X.  J.  L.  11".  17  Am.  Dee  455; 
Himely  v.  Wyatt.  1  B:        -    C.)   102;  Phaelon 
v.  McBride,  1   Bay    (S.  C.)    IT";   Young 
v.  Lowry,  ^  McCord  (S.  C. I  39,  13  Am. 
698;  3  P.all  &  Ik  75;  6  .1.  B.  Moo.  243;  2  C.  & 
P.  353.     In  the  first  case,   the  goods  are  ex- 
empt because  the  owner  has  no  option:     as 
goods  of  a  traveller  in  an  inn:  7   Hen.  VII. 
M.  i.  p.  1 ;  1  W.  Bla  Burr.  14ns.    In 

the    other,    the  interests   of   the   community 
require  that  commerce  should  be  encourag- 
ed; and  adventurers  will  not  engage  In 
ulations  if  the  property  embarked   Is  to   be 
made  liable  for  the  payment  of   d 
never  contracted.     Hence  goods  landed  at  a 
wharf,  or  deposited  in  a  warehouse  on  stor- 
age;  Brown   v.  Sims,   17   S.  &   B.    (Pa.)    138; 
Sson    v.    Men-ill,    21    Me.    -IT:    Connah 
v.   Hale.  23  Wend.    (N.   Y.)    462;   goods  of  a 
third  person  consigned  to  an  agent  to  be  sold 
on  commission    (and   if  the   landlord   knows 
that  the  goods  are  so  owned  and   has  them 
sold  under  distress,  he  is  liable  to  the 
in  trespass;   Brown  v.    Stackhouse,    155    Pa. 
582,  2(i   Atk   669,   :'■.">   Am.    St.    Pep.   90S 
horse  standing  in  a  smith's  shop  to  he  shod, 
or  in  a   common  inn,   or  cloth   at  a   tailor's 
house  to  be  made  into  a  coat,  or  corn  sent  to 
a  mill   to  he  ground  ;  "   B        I  annot 

he  distrained  ;  oeithe  '•'  ;>  board- 

er, for  rent  due  by  the  keeper  of  a 
house;    Biddle  v.   Welden,  5   Whart    (Pa.) 
!);  unless  used  by  the  tenant  with  the  ! 
er's  consent    and   without    that  of  the   land- 
lord;  Matthews  v.   Stone.  1   Hill    (N.   V. 

In  this  country  whether  the  tenant  con- 
ducts a  regular  trade  or  bus  ms  to 
have  keen  considered  immaterial  with  re- 
■o  exemption  of  things  on  the  premises 
in  the  way  of  trade;  Howe  Sewing  Mach. 
Co.  v.  Sloan.  ST  Pa.  438,  30  Am.  B  p.  :'.7<;; 
McCreery  v.  Clafnin.  87  Md.  435,  11  Am.  Kep. 
542.  See  list  of  exemptions  allowed  under 
this  rule;  2  Tiffany,  Laudl.  &  Ten.  2007. 


DISTRESS 


894 


DISTRESS 


At  common  law,  goods  delivered  to  a  com- 
mon carrier,  or  other  person,  to  be  conveyed 
for  hire,  or  goods  on  the  premises  of  an  auc- 
tioneer, for  the  purpose  of  sale  are  privi- 
leged ;  1  Cr.  &  M.  380. 

Goods  taken  in  execution  cannot  be  dis- 
trained. The  law  in  some  states  gives  the 
landlord  the  right  to  claim  payment  out  of 
the  proceeds  of  an  execution  for  rent  not 
exceeding  one  year,  and  he  is  entitled  to  pay- 
ment up  to  the  day  of  seizure,  though  it  be 
in  the  middle  of  a  quarter;  Binns  v.  Hudson, 
5  Binn.  (Fa.)  505;  but  he  is  not  entitled  to 
the  day  of  sale.  See  Trappan  v.  Morie,  18 
Johns.  (N.  Y.)  1.  The  usual  practice  is  to 
give  notice  to  the  sheriff  that  there  is  a  cer- 
tain sum  due  to  the  landlord  as  arrears  of 
rent, — which  notice  ought  to  be  given  to  the 
sheriff,  or  person  who  takes  the  goods  in  ex- 
ecution upon  the  premises ;  for  the  sheriff 
is  not  bound  to  find  out  whether  rent  is  due, 
nor  is  he  liable  to  an  action  unless  there  has 
been  a  demand  of  rent  before  the  removal; 
Com.  Dig.  Rent  (D  8)  ;  Alexander  v.  Mahon, 
11  Johns.  (N.  Y.)  1S5.  This  notice  can  be 
given  by  the  immediate  landlord  only.  A 
ground-landlord  is  not  entitled  to  his  rent 
out  of  the  goods  of  the  under-tenant  taken 
in  execution;  2  Stra.  787.  And  where  there 
are  two  executions,  the  landlord  is  not  en- 
titled to  a  year's  rent  on  each.  See  2  Stra. 
1024.  Goods  distrained  and  replevied  may 
be  distrained  by  another  landlord  for  subse- 
quent rent;  Woglam  v.  Cowperthwaite,  2 
Dall.  (U.  S.)  68,  1  L.  Ed.  292.  Where  a  ten- 
ant makes  an  assignment  in  the  usual  form, 
for  the  benefit  of  creditors,  the  assigned 
property  is  no  longer  his  in  his  own  right, 
and  it  cannot  be  seized  under  a  distress  war- 
rant for  rent;  Ex  parte  Knobebloch,  26  S. 
C.  333,  2  S.  E.  612 ;  Bischoff  v.  Trenholm,  36 
S.  C.  75,  15  S.  E.  346. 

By  statute  in  some  states  tools  of  a  man's 
trade,  some  designated  household  furniture, 
school-books,  and  the  like,  are  exempted 
from  distress,  execution,  or  sale.  In  Penn- 
sylvania, property  to  the  value  of  $300,  ex- 
clusive of  all  wearing  apparel  of  the  defend- 
ant and  his  family,  and  all  Bibles  and  school- 
books  in  use  in  the  family,  are  exempted 
from  distress  for  rent.  Also  sewing-ma- 
chines in  private  families. 

There  are  also  goods  conditionally  privi- 
leged, as  beasts  of  the  plough,  which  are  ex- 
empt if  there  be  a  sufficient  distress  besides 
on  the  land  whence  the  rent  issues ;  Co.  Litt. 
47  a ;  implements  of  trade,  as  a  loom  in  ac- 
tual use,  where  there  is  a  sufficient  distress 
besides ;  4  Term  565 ;  other  things  in  actual 
use,  as  a  horse  whereon  a  person  is  riding, 
an  axe  in  the  hands  of  a  person  cutting 
wood,  and  the  like ;  Co.  Litt.  47  a. 

The  leading  case  upon  exemptions  from 
distress,  Simpson  v.  Hartopp,  Willes  512,  1 
Sm.  L.  Cas.  (9th  Am.  ed.)  721,  has  been  the 
subject  of  critical  review  in  England  after 
the   lapse   of   150   years   with   respect   to   a 


curious  application  of  one  of  its  exceptions 
to  the  rule  subjecting  to  distress  all  prop- 
erty on  the  premises,  including  that  of  third 
persons.  The  exception  declared  by  Willes, 
J.,  of  "things  delivered  to  a  person  exercis- 
ing a  public  trade,  to  be  carried,  wrought, 
worked  up,  or  managed  in  the  way  of  his 
trade  or  employ,"  was  the  subject  of  con- 
struction in  [1908]  1  Ch.  49,  where  pictures 
sent  to  an  art  club  for  exhibition  were  held 
not  to  be  within  it,  because  the  owner  could 
not  show  that  the  pictures  were  delivered 
to  the  club  "for  the  purposes  of  trade,  his 
trade  being  a  public  trade."  In  this  judg- 
ment, Neville,  J.,  says  that  it  seems  extraor- 
dinary that  in  the  year  1907  "it  should  be 
possible  in  a  country  which  boasts  of  civili- 
zation, which  purports  to  protect  the  proper- 
ty of  the  law-abiding  citizen,  to  raise  such 
question.  But  so  it  is.  The  rule  that  the 
landlord  is  entitled  to  distrain  on  the  prop- 
erty of  third  persons  upon  the  premises,  sub- 
ject to  certain  exceptions,  has  up  to  the 
present  day  escaped  the  zeal  of  the  legal  re- 
former and  therefore  I  have  to  deal  with 
the  law  as  I  find  it."  He  then  proceeds 
to  find  "it  impossible,"  as  is  remarked  by  an 
annotator,  "to  extend  an  irrational  excep- 
tion, formulated  towards  the  middle  of  the 
eighteenth  century,  from  a  still  less  reason- 
able rule  which  has  been  a  part  of  the  law 
of  landlord  and  tenant  ever  since  leasehold 
interests  have  been  known  to  the  law;"  24 
L.  Q.  Rev.  49.  The  Court  of  Appeal  affirmed 
the  decision,  but  on  the  ground  that  the  ex- 
ception was  laid  down  by  Willes,  J.,  in  1744 
"with  great  accuracy"  and  must  be  adhered 
to  as  a  definition,  and  the  word  "managed" 
used  by  him  was  equivalent  to  "disposed  of," 
which  would  not  apply  to  the  case.  Thus, 
though  reaching  the  same  result,  they  differ- 
ed from  Neville,  J.,  who  put  the  case  on  the 
ground  that  "public  trade"  meant  that  which 
was  open  to  all  buyers  and  nqt  to  those  only 
of  the  club. 

'  At  common  law  a  distress  could  not  be 
made  after  the  expiration  of  the  lease.  This 
evil  was  corrected  by  statute  in  Pennsyl- 
vania in  1772.  Similar  legislative  enact- 
ments exist  in  most  of  the  other  states.  In 
Philadelphia,  the  landlord  may,  under  cer- 
tain circumstances,  apportion  his  rent,  and 
distrain  before  it   becomes  due. 

A  distress  may  be  made  either  upon  or  off 
the  land.  It  generally  follows  the  rent,  and 
is,  consequently,  confined  to  the  land  out  of 
which  it  issues;  Woodf.  Landl.  &  T.  456. 
If  two  pieces  of  land,  therefore,  are  let  by 
two  separate  demises,  although  both  be  con- 
tained in  one  lease,  a  joint  distress  cannot 
be  made  for  them ;  for  this  would  be  to  make 
the  rent  of  one  issue  out  of  the  other;  Rep. 
t.  Hardw.  245;  2  Stra.  1040.  But  where 
lands  lying  in  different  counties  are  let  to- 
gether by  one  demise  at  one  entire  rent,  and 
it  does  not  appear  that  the  lands  are  sepa- 
rate from  each  other,  one  distress  may  be 


DISTRESS 


895 


made  for  the  whole  rent;  1  Ld.  Raym.  55; 
12  Mod.  TO.     And  where  rent  is  charged  up- 
on land  which  is  afterwards  held  I 
tenants,    the    grantee   or    landlord    may    dis- 
train for  the  whole  upon  the  land  of  any  of 
them;  because  the  whole  rent  is  deemed  to 
issue  out  of  every  part  of  the  land;  Bolle, 
Ai»r.  671.    if  there  be  a  house  ou  the  land. 
the  distress  may  be  made  in  the  bon  i 
the  outer  door  or  window  be  "pen,  a  dl 
may  be  taken  out  of  it;  Rolle,  Abr.  67L     If 
an  outer  door  be  open,  an  Lnner  door  may 
he  broken  for  the  |  of  taking  a   dis- 

tress, hut  not  otherwist  ;  Caa  t.  Hard.  108. 
In  levying  a  distress  Cor  rent  entrance  was 
obtained  into  the  courtyard  through  a  gate, 
and  being  there,  the  bailiff  broke  open  the 
main  door  of  the  warehouse  and  distrained 
therein;  the  court  held  the  distress  Illegal, 

for  the  reason  that  the  door  that  was  I 
was  the  outer  door;  68  Law  T.  742.  A  dis- 
tress was  held  lawful  where  a  party  climbed 
over  the  wall  surrounding  the  yard  of  a 
house  and  entered  the  house  by  an  open 
window;  [1894]  1  Q.  B.  119.  Barges  on  a 
river,  attached  to  the  leased  premises  (a 
wharf)  by  ropes,  cannot  he  distrained;  6 
Bingh.  150. 

By  an  act  of  1772  in  Pennsylvania  copied 
from  the  act.  of  11  Geo.  II.  c.  19,  wl 
tenant  fraudulently  removes  his  goods  from 
the  premises  to  prevent  a  distress,  the  land- 
lord may  distrain  on  them  within  30  days 
after  removal,  but  not  on  goods  previously 
sold  bona  fide  and  for  a  valuable  considera- 
tion to  one  not  privy  to  the  fraud.  To  bring 
a  case  within  the  act,  the  removal  must 
take  place  after  the  rent  becomes  due.  and 
must  be  secret,  not  made  in  open  day;  for 
such  removal  cannot  be  said  to  be  clandes- 
tine within  the  meaning  of  the  act;  Grace 
v.  Shively,  12  S.  &  R.  (Pa.)  217;  7  Bingh. 
423;  1  Mood.  &  M.  535.  Tins  English  stat- 
ute has  been  re-enacted  in  many  of  the 
states,  but  the  period  during  which  the 
goods  may  be  followed  varies  in  different 
states.  In  Louisiana  the  landlord  may  fol- 
low goods  removed  from  his  premises  for 
fifteen  days  after  removal,  provided  they 
continue  to  be  the  property  of  the  tenant; 
La.  Civ.  Code  2675;  Tayl.  I.andl.  ft  T.  §  538. 
It  has  been  made  a  question  whether  goods 
are  protected  that  were  fraudulently  remov- 
ed on  the  night  before  the  rent  had  become 
due;  4  Campb.  135.  The  goods  of  a  stranger 
cannot  be  pursued;  they  can  be  distrained 
only  while  they  are  on  the  premises;  Adams 
v.  La  Comb,  1  Pall.  (U.  S.)  440,  1  L.  Ed  214. 

A  distress  for  rent  may  be  made  i 
by  the  person  to  whom  it  is  due,  or.  which 
is  the  preferable  modi-,  by  a  consl  Lble  <>r 
bailiff,  or  other  officer  properly  authorised 
by  him.  If  made  by  a  constable  or  bailiff, 
he  must  be  properly  authorized  to  make  it; 
for  which  purpose  the  landlord  should  give 
him  a  written  authority,  usually  called  a 
warrant   of   distress;    but   a    subsequent  as- 


sent and  recognition  given  by  the 

use  the  d.  \£  suf- 

ficient;  Ihmiu.  N.   P.  •' 

I    thus    !  with    the 

authority  to  make  a 
tenant  - 

of    the    whole,    and 

i  hem  as  a   dl  i\  ress  f<  r   I 

the   warrant   to  be 

landlord,   and   that  1  • 

Of    the    said     warrant; 

ought,    if    required,    i 

When   making   : 

made  for  the  v 

not  be  found  al 

the  whole,  or  the  party 

ond  di 

en   in  thi 

which  may  be  in  th  1 12a. 

As  soon  as  a  distress  is  made,   an   inven- 
tory   of   the  nd  a 
copy  of  it   deliver,  d  to  the 
with   a   notice  of  taking  such  distress,  with 
the  cause  of  taking  it.  and  an  opportunity 
thus    afforded    the    owner    to 
deem   the   goi  ds.     This   notice   of 
distre                           <d  by  th 
in   writing;    and.   t! 

may  be  given  eith 
the  pn  or  to  the  i 

distrained  ;    12   Mod 

directed    by    the 
cause   Of   taking,    it  is  not   material    wl 
it  accurately  state  the  period  of  the 
becoming  due;  DongL  '2' 
the  tr  of  tal  In  ; 

1  therein  :   7  Ter  □   054.      If 

be  not  personally  given,  it  should  be  left  in 
writing  at  the  tenant's  !  .  according 

to  the  directions  of  the  act,  at  the  mai 
house,   or  other  most    no1  n  the 

premises    charged    with    the    rent    distrained 
for. 
The  distrainor  may  leave  or  Impound  the 
s   on  the  premises   for 
mentioned   in   the  act,   but    1 1 

•  after  that  time;  Woglam  v.  i 

2  !>.  11.  (U.  SO  09,  1L    Ed 

many   eases   it   is   desirable,   for   the   sake  of 
the  tenant,  that  the  goods  should   I 

a  as  the  law  permits,  it  is  usual  for 
him  to  sign  an  agreemenl  at  to  their 

remaining  on  th<    pi 
in  the  custody 

son    by    him    appointed    for    that    pu: 
While  in   his   p,  linor   can- 

not   ose   or   work   cattle  distrained.   anl< 
be  for  the  owner's  !  i 

or  the  like;   6  Dai 

for     rent     may     be    I  by     a 

claimai  ;'-,-r  v-  hi<- 

2  w.  N.  0.   I 

re  the   goods   are   sold,   they    must  be 

appraised  by  two  reputable  freeholders,  who 

shall  take  an  oath  or  affirmation,  to  be  ad- 


DISTRESS 


896 


DISTRICT  ATTORNEY 


ministered  by  the  sheriff,  under-sheriff,  or 
coroner,  in  the  words  mentioned  in  the  act. 
The  next  requisite  is  to  give  public  notice 
of  the  time  and  place  of  sale  of  the  things 
distrained;  see  Whitton  v.  Milligan,  153  Pa. 
376,  26  Atl.  22 ;  after  which,  if  they  have  not 
been  replevied,  they  may  be  sold  by  the  prop- 
er officer,  who  may  apply  the  proceeds  to  the 
payment  and  satisfaction  of  the  rent,  and 
the  expenses  of  the  distress,  appraisement, 
and  sale;  Woodf.  Landl.  &  T.  1322.  The 
overplus,  if  any,  is  to  be  paid  to  the  tenant. 
A  distrainor  has  always  been  held  strictly 
accountable  for  any  irregularity  he  might 
commit,  although  accidental,  as  well  as  for 
the  taking  of  anything  more  than  was  rea- 
sonably required  to  satisfy  the  demand; 
Bradb.  Dist ;  Gilbert,  Rent. 

At  common  law  a  landlord  who  had  dis- 
trained could  not  sell  the  goods;  Davis  v. 
Davis,  128  Pa.  108,  18  Atl.  514. 

DISTRESS  INFINITE.  In  English  Prac- 
tice. A  process  commanding  the  sheriff  to 
distrain  a  person  from  time  to  time,  and  con- 
tinually afterwards,  by  taking  his  goods  by 
way  of  pledge  to  enforce  the  performance  of 
something  due  from  the  party  distrained 
upon.  In  this  case  no  distress  can  be  im- 
moderate, because,  whatever  its  value  may 
be,  it  cannot  be  sold,  but  is  to  be  immediate- 
ly restored  on  satisfaction  being  made;  3 
Bla.  Com.  231.  It  was  the  means  anciently 
resorted  to  to  compel  an  appearance.  See 
Attachment  ;  Arrest. 

DISTRIBUTEES.  The  persons  who  are 
entitled  under  the  statute  of  distribution  to 
the  personal  estate  of  one  who  has  died  in- 
testate.    Henry  v.  Henry,  31  N.  C.  279. 

DISTRIBUTION.  See  Executors  and  Ad- 
ministrators. 

DISTRICT.  A  certain  portion  of  the 
country,  separated  from  the  rest  for  some 
special  purpose. 

The  United  States  is  divided  into  judicial 
districts,  in  each  of  which  is  established  a 
district  court;  they  are  also  divided  into 
election   districts,   collection  districts,   etc. 

It  may  be  construed  to  mean  territory ; 
Com.  v.  Dumbauld,  97  Pa.  305;  and  in  the 
revenue  laws  the  words  "district"  and  "port" 
are  often  used  in  the  same  sense;  Ayer  v. 
Thacher,  3  Mas.  155,  Fed.  Cas.  No.  684. 

DISTRICT  ATTORNEY.  District  attor- 
neys of  the  United  States  are  appointed  for 
a  term  of  four  years  in  each  judicial  dis- 
trict, whose  duty  it  is  to  prosecute,  in  such 
district,  all  delinquents,  for  crimes  and  of- 
fences cognizable  under  the  authority  of  the 
United  States,  and  all  civil  actions  in  which 
the  United  States  shall  be  concerned,  except 
in  the  supreme  court,  in  the  district  in  which 
the  court  shall  be  holden.  R.  S.  §  767.  He 
must  appear  upon  the  record  for  the  United 
States  as  plaintiff,  in  order  that  the  United 
States  should  be  recognized  as  such  on  the 


record ;  U.  S.  v.  Doughty,  7  Blatch.  424,  Fed. 
Cas.  No.  14,986 ;  U.  S.  v.  Blaisdell,  3  Ben.  132, 
Fed.  Cas.  No.  14,608;  U.  S.  v.  McAvoy,  4 
Blatch.  418,  Fed.  Cas.  No.  15,654.  They  are 
under  the  direction  of  the  attorney-general 
and  must  report  to  him. 

The  officer  who  represents  the  state  in 
criminal  proceedings  within  a  particular 
county  is  also,  in  some  of  the  states,  called 
district  attorney.  As  a  prosecuting  attor- 
ney he  is  a  quasi  judicial  officer  and  stands 
indifferent  between  the  accused  and  any  pri- 
vate interest;  People  v.  Bemis,  51  Mich.  422, 
16  N.  W.  794. 

See  Prosecution;  Prosecutor. 

DISTRICT  COURTS.  See  United  States 
Courts. 

DISTRICT   MESSENGER   SERVICE.     The 

service  is  not  that  of  a  common  carrier,  but 
the  furnishing  of  messengers  to  be  used  by 
the  employer  in  any  way  in  which  they  could 
be  properly  employed,  in  the  course  of  which 
the  messenger  becomes  for  the  time  the 
servant  of  the  employer  and  the  company  is 
not  liable  for  his  dishonesty  in  the  ordinary 
course  of  his  employment  unless  there  was 
failure  to  use  proper  care  in  his  selection; 
Haskell  v.  Messenger  Co.,  190  Mass.  189,  76 
N.  B.  215,  2  L.  R.  A.  (N.  S.)  1091,  112  Am. 
St.  Rep.  324,  5  Ann.  Cas.  796. 

DISTRICT  OF  COLUMBIA.  A  portion  of 
the  country,  originally  ten  miles  square, 
which  was  ceded  to  the  United  States  by  the 
states  of  Virginia  and  Maryland,  over  which 
the  national  government  has  exclusive  juris- 
diction. 

Under  the  constitution,  congress  is  authorized  to 
"exercise  exclusive  jurisdiction  in  all  cases  whatso- 
ever, over  such  district,  not  exceeding  ten  miles 
square,  as  may,  by  cession  of  particular  states  and 
the  acceptance  of  congress,  become  the  seat  of  gov- 
ernment of  the  United  States."  In  pursuance  of  this 
authority,  the  states  of  Maryland  and  Virginia 
ceded  to  the  United  States  a  small  territory  on  the 
banks  of  the  Potomac,  and  congress,  by  the  act  of 
July  16,  1790,  accepted  the  same,  for  the  permanent 
seat  of  the  government  of  the  United  States. 

By  the  act  of  July  11,  1S46,  congress  ceded  back 
the  county  of  Alexandria,  part  of  the  District  of  Co- 
lumbia, to  the  state  of  Virginia. 

The  seat  of  government  was  removed  from  Phila- 
delphia to  the  District  in  December,  1800.  As  it  ex- 
ists at  present,  it  constitutes  but  one  county,  called 
the  county  of  Washington. 

By  act  of  Congress  of  Feb.  21,  1871,  a  territorial 
government  was  created  for  the  District ;  16  Stat. 
L.  419  ;  which  was  not  a  mere  municipality  in  its 
restricted  sense,  but  was  held  to  be  placed  upon  the 
same  footing  with  that  of  the  states  or  territories 
within  the  limits  of  the  act ;  Grant  v.  Cooke,  7  D. 
C.  165.  This  government  was,  however,  abolished  by 
act  of  June  20,  1S74,  and  a  temporary  government 
by  commissioners  was  thereby  created,  which  exist- 
ed until  by  act  of  June  11,  1878,  provision  was  made 
for  the  continuance  of  the  District  "as  a  municipal 
corporation"  and  its  control  by  the  federal  govern- 
ment through  these  commissioners,  two  of  whom  are 
appointed  by  the  president  and  confirmed  by  the 
senate,  and  the  other  is  an  engineer  officer  of  the 
army  to  be  detailed  for  that  service  by  the  presi- 
dent. It  is  a  municipal  corporation  having  a  right 
to  sue  and  be  sued,  and  is  subject  to  the  ordinary 
rules  that  govern  the  law  of  procedure  between  pri- 


DISTRICT  OF  COLUMBIA 


897      DISTRINGAS  Nl   PER  VICE  COMITKM 


vate  persons.  The  sovereign  power  Is  lodged  In  the 
government  of  the  United  States,  and  not  In  the 
corporation  of  the  District;  Metropolitan  R.  Co.  v. 
District  of  Columbia,  132  U.  S.  1,  10  Sup.  Ct.  19, 
33  L.  Ed.  231.  Congress  Is  its  local  legislature  ;  Gib- 
bons v.  District  of  Columbia,  116  U.  S.  404,  6  Sup. 
Ct.  427,  29  L.  Ed.  680;  and  exercises  over  it  full  and 
entire  jurisdiction  both  of  a  political  and  municipal 
nature;  Shoemaker  v.  U.  S.,  147  U.  S.  282.  300,  13 
Sup.  Ct.  3C1,  37  L.  Ed.  170;  Parsons  v.  District  of 
Columbia,  170  U.  S.  45,  18  Sup.  Ct.  621,  42  L.  Ed. 
843 ;  and  it  may  legislate  with  respect  to  people 
and  property  therein  as  may  the  legislature  of  a 
6tate  over  any  of  its  municipalities;  Mattingly  v. 
District  of  Columbia,  97  U.  S.  687,  690,  24  L.  Ed.  1098. 

The  District  differs  from  a  territory  in 
that  the  latter  is  the  fountain  from  which 
rights  ordinarily  Bow,  though  congress  may 
intervene,  while  in  the  former  the  body  of 
private  rights  is  created  and  controlled  by 
congress  and  not  by  a  legislature  of  the 
District;  Kawananakoa  v.  Polyblank,  205  U. 
S.   349,  354,  -11   Sup.  Ct.  520,  51  L.  Ed.  834. 

The  District  of  Columbia  and  the  territorial  dis- 
tricts of  the  United  States  are  not  states  within  the 
meaning  of  the  constitution  and  of  the  Judiciary 
Act,  so  as  to  enable  a  citizen  thereof  to  sue  a  citi- 
zen of  one  of  the  states  in  the  federal  courts  ;  Hop- 
burn  v.  Ellzey,  2  Cra.  (U.  S.)  440,  2  L.  Ed.  332; 
New  Orleans  v.  Winter,  1  Wheat.  (U.  S.)  91,  4  L.  Ed. 
44;  Seton  v.  Hanham,  R.  M.  T.  Charlt.  (Ga.)  374. 
Kent  says:  "However  extraordinary  it  might  seem 
to  be,  that  the  courts  of  the  United  States,  which 
were  open  to  aliens,  and  to  the  citizens  of  every 
state,  should  be  closed  upon  the  inhabitants  of  those 
districts  (territories  and  the  District  of  Columbia), 
on  the  construction  that  they  were  not  citizens  of  a 
state,  yet  as  the  court  observed,  this  was  a  subject 
for  legislative,  and  not  for  judicial  consideration." 
1  Com.  349.  It  might  be  suggested  as  a  coi 
tion  not  here  adverted  to,  that  the  theory  on  which 
this  right  of  suing  in  federal  courts  is  based  is 
possible  prejudice  to  the  rights  of  a  citizen  of  an- 
other state  or  an  alien  in  the  state  court.  In  the 
District  of  Columbia  and  territories  this  would  not 
apply,  as  their  courts  are  created  by  the  federal 
government. 

For  the  judiciary,  see  United  States  Courts. 

DISTRICT  10.  A  distraint,  or  distress. 
Cowell. 

DISTRINGAS.  A  writ  directed  to  the 
sheriff,  commanding  him  to  distrain  a  per- 
son of  his  goods  and  chattels  to  enforce  a 
compliance  with  what  is  required  of  him. 
It  is  used  to  compel  an  appearance  where  the 
party  cannot  be  found,  and  in  equity  may  be  avail- 
ed of  to  compel  the  appearance  of  a  corporation 
aggregate.  4  Bouvier,  Inst.  n.  4191 ;  Comyns,  Dig. 
Process   (D  7)  ;    Chitty,  Pr. ;    Scllon,   Pr. 

A  form  of  execution  in  the  actions  of  det- 
inue and  assize  of  nuisance.  Brooke,  Abr. 
pi.   20;   r.arnet  v.   Ihrie.   1    Etawle    (Pa.)    44. 

DISTRINGAS  JURATORES  (Lat  that  you 
distrain  jurors).  A  writ  commanding  the 
sheriff  to  have  the  bodies  of  the  Jurors,  or 
to  distrain  them  by  their  lands  and  goods, 
that  they  may  appear  upon  the  day  appoint- 
ed. 3  Bla.  Com.  354,  it  issues  at  the  same 
time  with  the  venire,  though  in  theory  after- 
wards, founded  on  the  supposed  neglect  of 
the  juror  to  attend.    3  Steph.  Com.  590. 

DISTRINGAS  NUPER  VICE  COMITEM 
(Lat.  that  you  distrain  the  late  sheriff). 
A  writ  to  distrain  the  goods  of  a  sheriff  who 
Bouv.— 57 


is  out  of  office,  to  compel  him  to  bring  in  the 
body  of  a  defendant,  or  to  sell  goods  attach- 
ed under  a  ft.  fa.,  which  he  ought  to  have 
done  while  in  office,  but  has  failed  to  do. 
l  Tidd,  Pr.  313. 

It  can  only  issue  after  a  return  of  seizure 
of  goods  to  the  value,  etc.;  Kline  v.  Church, 
16  Pa.  Dist.  R.  559,  where  the  practice  was 
considered,  although  the  writ  has 
len  into  disuse,  and  cases  in  6  Mod.  295,  and 
Zane  v.  Cowperthwaite,  1  Dall.  (I'.  B.)  81% 
i  L  Bd.  162,  were  cited. 

DISTURBANCE.  A  wrong  done  to  an  In- 
corporeal hereditament  by  hindering  or  <li-- 
quletlng  the  owner  in  the  enjoyment  of  it 
::  Bla,  Com.  235;  Downing  v.  Baldwin,  1  8. 
&  B.  (Pa.)  298;  Files  v.  Magoon,  m  lie.  104. 
The  remedy  for  a  disturbance  is  an  action 
on  the  case,  or,  in  some  instances  in  equity, 
by  an  injunction. 

DISTURBANCE  OF  COMMON.  Any  act 
done  by  which  the  right  of  another  to  his 
common  is  Incommoded  or  hindered.  The 
remedy  is  by  distress  (where  beasts  are  put 
on  his  common)  or  by  an  a<  tion  on  the  case, 
provided  the  damages  are  large  enough  to 
admit  of  his  laying  an  action  with  a  per 
quod.     Cro.    Jac.  0.   Litt.    11"-' :  3    Ida. 

Com.  237;   1   Saund  546;  -1  Term  71. 

DISTURBANCE  OF  FRANCHISE.  Any 
acts  done  whereby  the  owner  of  a  franchise 
has  his  property  damnified  or  the  profits 
arising  thence  diminished.  The  remedy  for 
such  disturbance  is  a  Bpecial  on  the 

case;    Cro.    Eli:  and.    1136;    3 

Sharsw.  Bla.  Com.   i  Mfg.   Co., 

28  X.   II.  438. 

Equity    will    grant   an    injunction    against 
disturbance  of  a  franchise  in  certain  c 
Mohawk   Bridge  Co.   v.   R.  Co..  0  Palj 
(X.   Y.i    554;   Georgetown  v.  Canal   Co.,   i- 
Pet.  (U.  s.i  Pi.  9  L.  Ed  1012; 
of  Delaware  &  M.   II.   Co.   v.    Stump,  S  G.   & 
J.  (Md.)  479,  29  Am.  Dec  561. 

DISTURBANCE    OF      PATRONAGE.     The 
hindrance   or   obstruction   of  the  patron   to 
present  his  clerk  to  u  benefice.     3  Bla.  I 
212.      The   principal   remedy    was    a    writ   of 
right   of   advowson;    and    th< 

writs    of    darrein    presentment   and   of   ijuarr 
impedit.     Co.  2d   Inst,  .".v.;  Fit/.h.  X.  I'..  31. 

DISTURBANCE  OF  PUBLIC  WORSHIP. 
The  Interference  with  the  good  ord<  r 

mblies  has  been  d<  is  dis- 

turbance, and  in  some  of  the  states  statutes 
have  been  passed  to  meet  the  offence;  State 
1.  364  :  Wall  v.  Lee,  34  X.  T. 
in  ;  Cockreham  v.  State,  7  Humph,  i  'i 
11;  Owen  v.   Ilenman.  1   W.  &   8.    (Pa 
:;:  Air.  Dec.   i1-'  :  T  ••  459, 

16  s.  EL  204;  state  v.  Karnes,  51   Mo.  App. 
293;  Williams  v.  State,  f  South. 

743;  Ball  v.  State,  67  Miss.  '  58,  7  Soul 

It   is   no!  ry   to   constitute   the   of- 

fence that  the  congregation  shall  be  actually 


DISTURBANCE  OF  PUBLIC  WORSHIP     898 


DIVERSION 


engaged  in  acts  of  religious  worship  at  the 
time  of  the  disturbance,  but  it  is  sufficient 
if  they  are  assembled  for  the  purpose  of 
worship;  State  v.  Ramsay,  78  N.  C.  448; 
State  v.  Lusk,  68  Ind.  264. 

To  support  a  conviction  for  disturbing  pub- 
lic worship,  the  evidence  must  show  a  wil- 
ful disturbance;  Prucell  v.  State,  (Tex.)  19 
S.  W.  605 ;  Richardson  v.  State,  5  Tex.  App. 
470 ;  Lancaster  v.  State,  53  Ala.  398,  2.3  Am. 
Rep.  625 ;  State  v.  Lusk,  68  Ind.  264 ;  State 
v.  Bryson,  82  N.  C.  576. 

A  Christmas  festival  is  not  a  religious  as- 
sembly;  Layne  v.  State,  4  Lea  (Tenn.)  199; 
nor  is  a  church  business  meeting ;  Wood  v. 
State,  11  Tex.  App.  318.  A  Sunday  school 
is  not  divine  service ;  Appeal  of  Gass,  73  Pa. 
39,  13  Am.  Rep.  726. 

DISTURBANCE  OF  TENURE.  Breaking 
the  connection  which  subsists  between  lord 
and  tenant.  3  Bla.  Com.  242 ;  2  Steph.  Com. 
513. 

DISTURBANCE  OF  WAYS.  This  hap- 
pens where  a  person  who  hath  a  right  of 
way  over  another's  ground  by  grant  or  pre- 
scription is  obstructed  by  enclosures  or  oth- 
er obstacles,  or  by  ploughing  across  it,  by 
which  means  he  cannot  enjoy  his  right  of 
way,  or  at  least  in  so  commodious  a  manner 
as  he  might  have  done ;  3  Bla.  Com.  242 ; 
Pope  v.  Devereaux,  5  Gray  (Mass.)  409; 
McTavish  v.  Carroll,  7  Md.  352,  61  Am.  Dec. 
353;  Shroder  v.  Brenneman,  23  Pa.  348; 
Okeson  v.  Patterson,  29  Pa.  22. 

DITCH.  The  words  "ditch"  and  "drain" 
have  no  technical  or  exact  meaning.  They 
both  may  mean  a  hollow  place  in  the  ground, 
natural  or  artificial,  where  water  is  collected 
or  passes  off.  Goldthwait  v.  Inhabitants  of 
East  Bridgewater,  5  Gray  (Mass.)  64.  See 
Easement  ;  Drain. 

DIVERSION.  A  turning  aside  or  altering 
the  natural  course  of  a  thing.  The  term  is 
chiefly  applied  to  the  unauthorized  changing 
the  course  of  a  water-course  to  the  prejudice 
of  a  lower  proprietor.  Rap.  &  Lawr.  L.  Diet. 
See  Parker  v.  Griswold,  17  Conn.  299,  42  Am. 
Dec.  739 ;  6  Price  1. 

One  who  has  a  natural  gas  well  on  his 
place  may  explode  nitroglycerine  therein  for 
the  purpose  of  increasing  the  flow,  though 
it  has  the  effect  of  drawing  the  gas  from  the 
land  of  another;  Greenfield  Gas.  Co.  v.  Gas 
Co.,  131  Ind.  599,  31  N.  E.  61. 

The  owner  of  land  through  which  flows  a 
stream  of  water,  may  recover  damages  from 
one  who  diverts  the  water,  for  any  actual 
injury  suffered  therefrom  in  the  enjoyment 
of  his  land;  Clark  v.  R.  Co.,  145  Pa.  43S, 
22  Atl.  989,  27  Am.  St.  Rep.  710;  Case  v. 
Hoffman,  84  Wis.  438,  54  N.  W.  793,  20  L. 
R.  A.  40,  36  Am.  St.  Rep.  937.  The  fact 
that  one  diverts  water  maliciously  is  of  no 
importance  in  determining  whether  a  legal 
right  of  plaintiff  has  been  violated;  Paine  v. 


Chandler,  134  N.  Y.  385,  32  N.  E.  18,  19  L. 
R.  A.  99.  See  Riparian  Proprietors  ;  Water- 
Course  ;  Gas  ;  Oil. 

DIVERSITY  OF  PERSON.  The  plea  of  a 
prisoner  in  bar  of  execution  that  he  is  not 
the  person  convicted.  4  Steph.  Com.  368 ; 
Moz.  &  W.  Law  Diet. 

D  I  VERSO  INTUITU.  From  a  different 
view  or  point  of  view ;  with  a  different  view, 
design,  or  purpose ;  by  a  different  course  or 
process.  1  W.  Bla.  89;  9  East  311;  D'Wolf 
v.  Rabaud,  1  Pet.  (U.  S.)  500,  7  L.  Ed.  227; 
4  Kent,  Com.  211    (b). 

DIVEST.     See  Devest. 

DIVIDED    COURT.     See   Precedent. 

DIVIDEND.  A  portion  of  the  principal 
or  profits  divided  among  several  owners  of  a 
thing.  Williston  v.  R.  Co.,  13  Allen  (Mass.) 
400;  Taft  v.  R.  Co.,  8  R.  I.  310,  5  Am.  Rep. 
575 ;  Attorney  General  v.  Bank,  21  N.  C.  545 ; 
Cary  v.  Sav.  Union,  22  Wall.  (U.  S.)  38,  22 
L.  Ed.  779.  See  Rose  v.  Barclay,  191  Pa. 
594,  43  Atl.  385,  45  L.  R.  A.  392. 

As  confined  to  corporations  it  is  "that  por- 
tion of  the  profits  and  surplus  funds  of  the 
corporation .  which  has  been  actually  set 
apart  by  a  valid  resolution  of  the  board  of 
directors,  or  by  the  shareholders  at  a  corpo- 
rate meeting,  for  distribution  among  the 
shareholders  according  to  their  respective  in- 
terests, in  such  a  sense  as  to  become  segre- 
gated from  the  property  of  the  corporation, 
and  to  become  the  property  of  the  share- 
holders distributively."  2  Thomp.  Corp.  § 
2126;  Mobile  &  O.  R.  Co.  v.  Tennessee,  153 
U.  S.  486,  14  Sup.  Ct.  968,  38  L.  Ed.  793. 

In  the  commonest  use  of  the  term  divi- 
dends are  a  sum  which  a  corporation  sets 
apart  from  its  profits  to  be  divided  among 
its  members.  Lockhart  v.  Van  Alstyne,  31 
Mich.  76,  18  Am.  Rep.  156;  which,  for  the 
purpose  of  declaring  a  dividend,  consist  of 
the  excess  of  its  cash  and  other  property  on 
hand  over  its  liabilities ;  Hubbard  v.  Weare, 
79  la.  678,  44  N.  W.  915. 

Dividends  cannot  usually  be  paid  out  of 
the  capital  but  only  from  the  profits.  The 
former  is  a  trust  fund  for  the  stockholders ; 
2  Thomp.  Corp.  §  2152 ;  which  each  of  them 
is  entitled  to  have  preserved  intact;  Slay- 
den  v.  Coal  Co.,  25  Mo.  App.  439;  but  this 
principle  does  not  apply  when  the  capital 
from  its  nature  is  liable  to  waste  and  de- 
preciation, as  in  case  of  companies  to  work 
a  mine  or  a  patent ;  41  Ch.  Div.  1. 

Where  dividends  are  required  to  be  de- 
clared out  of  profits  merely  of  a  railroad 
company,  the  rule  for  ascertaining  the  prof- 
its is  to  exclude  from  consideration  all  debts 
other  than  what  are  commonly  understood 
by  the  term  funded  debts,  but  to  treat  as 
deductions  debts  incurred  and  due  for  en- 
gines, rails,  and  the  like,  which  should  and 
would  have  been  paid  at  the  time  if  the 
funds  had  been  in  hand  and  are  necessary 


DIVIDEND 


S99 


DIVJi 


deductions  from  the  property ;  29  Beav.  272 : 
and  as  to  what  are  net  earnings  in  the  sense 
of  surplus  profits  and  therefore  susceptible 
of  definition,  see  Union  Pac.  R.  Co.  v.  I  8., 
99  U.  S.  420,  25  L.  Ed.  27-1;  99  Am.  Dec.  762, 
note;  Excelsior  Water  &  Mining  Co.  v. 
Pierce.  90  Cal.   131,  27  Pac,   11. 

In  England  it  was  held  that  dividends 
must  be  payable  in  money;  L.  R,  3  I  I  q, 
517;  and  it  has  been  said  there  that  the 
whole  of  the  profits  of  a  corporation  must 
be  divided  periodically;  L.  R.  1  Oh.  494;  but 
this  is  perhaps  too  broadly  stated;  Green's 
Brice,  Ultra  Vires  201.  Neither  of  the  above 
rules  obtains  in  America:  here  stock  and 
scrip  dividends  are  very  common;  Leland  v. 
llayden,  102  -Mass.  542;  Lord  v.  Brooks,  52 
N.  H.  72;  Howell  v.  Ry.  Co.,  .",1  Barb.  (N.  Y.i 
378;  State  v.  R.  Co.,  6  Gill  (Md.)  363;  Mo- 
raw,  l'riv.  Corp.  448;  and  in  the  absence  of 
statutory  restriction  are  lawful;  Williams  v. 
Telegraph  Co.,  93  X.  Y.  162;  Hand  v.  Hub- 
bell,  115  -Mass.  471,  15  Am.  Rep.  121;  Com. 
v.  Ry.  Co.,  74  Pa.  83 ;  and  bonds  may  be  is- 
sued to  the  stockholders  of  a  railroad  corpo- 
ration in  place  of  cash,  as  the  dividends  rep- 
resenting earnings  appropriated  to  the  con- 
struction account,  and  these  dividends,  hav- 
ing been  duly  earned,  may  be  declared  for 
four- years  at  once  instead  of  each  year; 
Wood  v.  Lary,  47  Hun  (X.  Y.i  550. 

The  declaration  of  dividends  is  within  the 
implied  scope  of  the  authority  of  the  di- 
rectors, and  unless  controlled  by  the  action 
of  the  corporation  itself  they  have  authority. 
in  their  sole  discretion,  to  declare  dividends 
and  to  fix  the  time  and  place  of  payment 
within  the  limits  of  reason  and  good  faith 
with  the  stockholders;  State  v.  Bank,  6  La. 
745;  Union  Pac.  Ry.  Co.  v.  U.  S.,  99  U.  S. 
420,  25  L.  Ed.  274;  Minot  v.  Paine,  99  Mass. 
101,  96  Am.  Dec.  705;  Park  v.  Locomotive 
Works.  40  X.  J.  Eq.  114,  3  Atl.  762; 
sior  Water  &  Mining  Co.  v.  Pierce,  90  CaL 
131,  27  Pac.  44;  Williams  v.  Telegraph  Co., 
93  X.  Y.  162;  and  as  to  time  and  place; 
King  v.  R.  Co.,  29  N.  J.  L.  82.  See  Bel  last 
&  M.  L.  R.  Co.  v.  City  of  Belfast.  77  Me. 
445,  1  Atl.  362;  New  York,  L.  B.  &  W.  R. 
Co.  v.  Xickals,  119  U.  S.  296,  7  Sup.  Ct  209, 
30  L.   Ed.  363. 

Where    stockholders,    including    directors. 

met  and  agr 1  to  a  division  of  profits,  but 

without  formally  declaring  a  dividend,  their 
action  was  equivalent  to  such  declaration: 
Spencer  \\  Lowe,  198  Fed.  961,  117  C.  C.  A. 
497.  Generally  courts  will  not  inter; 
behalf  of  a  common  stockholder  to  compel 
the  declaration  of  a  dividend  except  In  case 
of  fraud  or  abuse  of  discretion;  Howell  v. 
R.  Co.,  51  Barb.  (N.  Y.)  :::^:  Pratt  v.  Pratt, 
Read  &  Co.,  33  Conn.  446;  Smith  v.  Mfg. 
Co.,  29  Ala.  503;  Hunter  v.  Roberts,  Throp 
&  Co.,  83  Mich.  63,  47  X.  W.  131;  nor  will 
equity  restrain  the  declaration  of  a  dividend 
where  the  propriety  of  declaring  one  is  fair- 
ly within  the  discretion  of  the  directors;  41 


Ch.  Div.  1.  Livid  ads  may  bo  applied  by 
the  corpon  due  oy  I 

holder    where   t  ffOUld   ex- 

ist with  rope,  t  j;x  parte 

Winsor,   3   Sto.   41 1 

but  this  right  e  where  thi 

has    b(  red    and 

holder  cannot  refuse  to  pay  Intel 
the  corporation    in   anticipate  div- 

idend   will   be  declared ;    Ely   v.   S 
Clarke,  Ch.   (N.   X\)  351.     I;    I 
i  bal    unpaid  dividends  are 
poration    available   for   ci 
its  insolvency;   Curry   v.   Woodward,  -I  ; 
305;   but  this  view  is  disapproved  ai 
eland    unsound;    2    Thomp.    Corp.    J 
Dividends  Improperly  declared  may   i 
called;   id.   \   2135;   and  even  if  paid,   it  has 
been   held  that  they  may 
ington  Life,  Blre  ..v  Marine  1 1 
17  B.  Mon.  t K y. i  412,  86  Am.  Dec  166;  but 
this  decision  is  doubted;  -  Thomp.  Corp.  js 
2135;  although  approved  in  a  case  which  did 
not  require  the  court   to  go  30  far  but 
to  hold   that   the  dividend,   not   having 
paid,   was  not  collectible;   Slayden  v.  Coat 
Co.,  25   Mo.    App.  439. 

But   where   the    directors,    in   fraud   of  a 
stockholder,    set    aside    all    the   earning 
working  capital,  equity  required   the  direc- 
tors  to   declare   a   dividend   out   ol 
earnings  not  needed  for  the  corp< 

Lawton  v.  Bedell  (N.  J.)  71  At: 
Equity  will  order  a  surplus  of  earni: 
a    life   insurance  company   to   be   distrj 

ikholders,  if  not  needed  tor  Its 
ness    and    the    directors   have   arbitrarily    or 
unreasonably  withheld  them;    Blanchard  v. 
Ins.  Co.,  78  X.  J.  Bq.   171,  7'.' 

When  the  fact  that  a  dividend  has  been 
voted  by  the  directors  is  not  made  public  or 
communicated  to  the  stockholders,  and  DO 
fund  is  set  apart  for  payment,  the  vote  may 
be  rescinded;  Ford  v.  Thread  i 
84,  32  X.  B.  1036  20  U  R.  A.  65,  35  Am. 
St.  Rep.  b'._'.  There  can  be  no  discrimina- 
tion among  stockholders  of  the  same 

iecl  to  dividends,  but  if  one  sto,  khold- 
er  is  discriminated  against,  he  cannot  re- 
cover his  share  ratably  from  the  others, 
until  at  least  he  has  established  his  right 
as  a  creditor  of  the  company  and  pursued 
his  remedy  against  it;  Peckham  v.  Van 
Wagenen,  s-':  N.  v.  ;•'.  38  Am.  Rei , 

a  stockholder  cannot  recover  the  profits 
made  by  a  corporation  until  a  dividend  has 
been  declared:  Minot  v.  Paine.  \k>  Mass.  101, 
96  Am.  Dec,  705;  Lockhart  v.  Van  Alstyne, 
:tt  .Mi.h.  78,  L8  Am.  Rep.  156;  Apj  i 
Moss,  83  Pa.  269,  :Ji  Am.  Rep  idwin 

v.  Hardy,  57  Me.  143,  99  Am.  Dee  758;  Bev- 
eridge  v.  R.  Co.,  112  X.  Y.  1,  19  X.  i 
1!  L.  U.  A.  648;  but  after  a  dividend  has  been 
declared,  and  a  demand  madi  by  a 

stockholder,  he  may  sue  in  assumpsit  for 
the  amount  due  him;  Jones  v.  K.  Co.,  57  X. 
Y.  I'M ;  Brown  v.  Xav.  Co.,  4'j  Pa.  270 ;  and 


DIVIDEND 


900 


DIVIDEND 


a  stockholder  has  been  allowed  to  follow  the 
amount  of  his  dividend  into  the  hands  of 
the  receiver  of  the  company ;  In  re  Le  Blanc, 
14  Hun  8 ;  Beers  v.  Spring  Co.,  42  Conn.  17 ; 
the  declaration  of  the  dividend  is  an  admis- 
sion of  indebtedness  in  money  ;  Ehle  v.  Bank, 
24  N.  Y.  548;  and  it  Is  no  defence  to  show 
that  the  earnings  were  received  in  other  prop- 
erty ;  id.  The  earnings  of  the  corporation 
are  part  of  the  corporate  property,  and,  until 
separated  from  the  general  mass,  the  inter- 
est of  the  stockholders  therein  passes  with 
the  transfer  of  the  stock;  and  this  is  irre- 
spective of  the  time  during  which  earnings 
have  accrued.  By  the  declaration  of  a  divi- 
dend, however,  the  earnings,  to  the  extent 
declared,  are  separated  from  the  general 
mass  and  are  appropriated  to  the  then  stock- 
holders, who  become  creditors  of  the  corpo- 
ration for  the  amount  of  the  dividend.  The 
earnings  represented  by  the  dividend,  al- 
though the  fruit  of  the  general  property  of 
the  company,  are  no  longer  represented  by 
the  stock,  but  become  a  debt  of  the  com- 
pany to  the  individual  who,  at  the  time  of 
the  declaration  of  the  dividend,  was  the 
owner  of  the  stock.  That  the  dividend  is 
payable  at  a  future  date  makes  no  distinc- 
tion in  the  right.  The  debt  exists  from  the 
time  of  the  declaration  of  the  dividend, 
though  payment  be  postponed.  This  right 
could  of  course  be  transferred,  by  special 
agreement,  with  the  stock,  but  not  other- 
wise. The  dividend  would  not  pass  as  an 
incident  of  the  stock;  Wheeler  v.  Sleigh  Co., 
39  Fed.  347;  Clark  v.  Campbell,  23  Utah 
569,  65  Pac.  496,  54  L.  R.  A.  508,  90  Am. 
St.  Rep.  716. 

Mandamus  will  not  lie  to  compel  the  pay- 
ment of  dividends  declared  by  a  private  cor- 
poration ;  Van  Norman  v.  Mfg.  Co.,  41  Mich. 
166,  49  N.  W.  925. 

Dividends  must  be  so  declared  as  to  give 
each  stockholder  his  proportional  share  of 
profits;  Jones  v.  R.  R.  Co.,  57  N.  Y.  196; 
Ryder  v.  R.  Co.,  13  111.  516 ;  L.  R.  3  Ch.  262 ; 
Atlantic  &  O.  Telegraph  Co.  v.  Com.,  3 
Brewst.  (Pa.)  366;  and  if  one  person  is  ex- 
cepted, he  may  sue  for  his  dividends,  for 
the  reason  that  such  exception  is  void ;  Hill 
v.  Coal  &  Min.  Co.  (Mo.)  21  S.  W.  508.  They 
can  properly  be  declared  only  out  of  profits 
actually  earned;  and  when  improperly  de- 
clared and  paid,  they  may  be  recovered 
back;  Comstock  v.  Drohan,  71  N.  Y.  9. 

It  is  said  that  in  Great  Britain  it  is  well 
settled  that  where  a  corporation,  whether 
authorized  or  unauthorized  by  law  to  in- 
crease its  capital  stock,  accumulates  and 
invests  part  of  its  earnings,  and  afterwards 
apportions  them  among  its  shareholders  as 
capital,  the  amount  so  apportioned  must  be 
deemed  an  accretion  to  the  capital  of  each 
share,  the  income  of  which  only  is  payable 
to  a  tenant  for  life;  Gibbons  v.  Mahon,  136 
U.  S.  549,  10  Sup.  Ct  1057,  34  L.  Ed.  525. 


Where  a  company,  by  a  majority  of  tn» 
votes,  has  decided  not  to  divide  the  money, 
but  to  turn  it  all  into  capital,  it  must  be 
held  capital  from  that  time ;  L.  R.  29  Ch. 
Div.  G35;  L.  R.  12  App.  Cas.  385.  The 
same  principle  was  established  in  Massachu- 
setts before  the  last  cited  English  case  had 
come  before  the  courts  of  England;  Atkins 
v.  Albree,  12  Allen  (Mass.)  359;  Miuot  v. 
Paine,  99  Mass.  101,  96  Am.  Dec.  705;  Da- 
land  v.  Williams,  101  Mass.  571;  Leland  v. 
Hayden,  102  Mass.  542;  Rand  v.  Hubbell, 
115  Mass.  461,  15  Am.  Rep.  121.  And  in 
Connecticut,  Rhode  Island  and  Maine  a  divi- 
dend of  new  shares  representing  accumulat- 
ed earnings  is  held  to  be  capital  and  not  in- 
come; Brinley  v.  Grou,  50  Conn.  66,  47  Am. 
Rep.  618;  Boardman  v.  Mansfield,  79  Conn. 
634,  66  Atl.  169,  12  L.  R,  A.  (N.  S.)  793,  118 
Am.  St.  Rep.  178;  In  re  Brown,  14  R.  I. 
371,  51  Am.  Rep.  397 ;  Richardson  v.  Richard- 
son, 75  Me.  570,  46  Am.  Rep.  428.  A  stock 
dividend  is  held  not  to  distribute  property ; 
Kalbach  v.  Clark,  133  la.  215,  110  N.  W. 
599,  12  L.  R.  A.  (N.  S.)  801,  12  Ann.  Cas. 
647;  but  simply  dilutes  the  shares  as  they 
existed  before ;  Williams  v.  Telegraph  Co., 
93  N.  Y.  189.  In  In  re  Kernochan,  104  N. 
Y.  618,  11  N.  E.  149,  the  court  applied  the 
same  rules  as  between  the  remainderman 
and  the  person  entitled  for  life  to  the  in- 
come of  shares  bequeathed  in  trust,  reject- 
ed the  test  of  determining  what  part  of  a 
cash  dividend  should  be  deemed  principal 
and  what  part  income,  by  ascertaining  how 
much  was  earned  before  and  how  much  aft- 
er the  death  of  the  testator,  approved  the 
English  doctrine  above  cited,  and  said  that 
from  the  shares  in  question  no  income  could 
accrue,  no  profit  arise  to  the  holder  until 
declared  by  the  company,  and  that  act  should 
be  deemed  to  have  been  in  the  mind  of  the 
testator,  and  not  the  earnings  or  profits  as 
ascertained  by  a  third  person,  or  a  court 
upon  an  investigation  of  the  business  of  the 
company. 

Where  the  votes  of  the  corporation  left 
the  stockholders  at  liberty  to  take  the  cash 
dividend  or  to  take  new  stock  and  treat  the 
dividend  as  payment  for  it,  it  cannot  be 
said  to  be  a  stock  dividend;  Davis  v.  Jack- 
son, 152  Mass.  58,  25  N.  E.  21,  23  Am.  St. 
Rep.  801.  In  Lord  v.  Brooks,  52  N.  H.  72, 
it  was  held  that  the  surplus  earnings  of  a 
corporation  that  were  not  divided  at  the 
date  of  a  trust  deed  belonged  to  the  corpus 
of  the  trust  as  a  part  of  the  capital  of  the 
trust  fund,  and  that  dividends  declared  out 
of  surplus  earnings  accrued  since  the  date 
of  the  trust  deed  were  income  for  the  life 
tenant. 

Stock  which  a  corporation  has  acquired 
from  its  stockholder  in  payment  of  a  debt, 
and  which  it  distributes  among  its  remain- 
ing stockholders  as  surplus  earnings,  goes 
to  the  life  tenant,  and  not  to  the  remainder- 


DIVIDEND 


001 


DIVIDEND 


man;  Green  v.  Bi.ssell,  79  Conn.  547,  65  Atl. 
105G,  S  L.  R.  A.  (X.  S.)  1011,  118  Am.  St. 
Rep.   156,  !)  Ann.  ("as.  2S7. 

In  Holbrook  v.  Ilolbrook,  74  N.  II.  201,  66 
Atl.  124,  12  L.  R.  A.  (N.  S.)  70S,  it  is  said 
the  method  to  be  pursued  is  to  inquire  into 
the  actual  nature  and  source  of  the  dividend. 
If  it  is  found  to  represent  surplus  earnings 
accrued  since  the  creation  of  the  trust,  it  is 
income  and  goes  to  the  life  tenant.  If  it 
Is  found  to  represent  earnings  accrued  prior 
to  the  creation  of  the  trust,  it  is  capital  and 
goes  to  the  corpus  of  the  trust  And  if  it  is 
found  in  whole  or  in  part  to  represent  the 
increase  in  value  of  the  corporate  plant  and 
business,  whether  it  took  place  before  or 
after  the  trust  was  created,  it  is  also  to 
that  extent  capital,  citing  Jones  v.  Railroad, 
67  N.  H.  234,  30  Atl.  614,  68  Am.  St.  Rep. 
650;  Van  Blarcom  v.  Dager,  31  N.  J.  Bq.  783; 
Hite's   Devisees   v.   Ilite's  Ex'r.   03  Ky.   257, 

20  S.  W.  778,  19  L.  R.  A.  173.  40  Am.  St. 
Rep.  189.  As  the  court  in  making  the  in- 
quiry concerns  itself  with  the  substance  of 
the  transaction,  and  not  the  form  in  which 
the  corporation  has  seen  fit  to  clothe  it,  the 
fact  that  a  dividend  is  distributed  in  cash  or 
stock  is  of  little,  if  of  any,  importance  in  de- 
termining whether  it  is  capital  or  income. 
The  inquiry  is  largely  one  of  fact,  and  the 
dividend  is  capital  or  income  as  the  fact 
discloses  into  which  of  the  above  enumerated 
classes  it  falls.  That  it  is  said  is  the  logic 
of  the  decision  of  the  case  in  Lord  v.  Brooks. 
52  N.  H.  72,  supra,  and  to  be  supported  by 
the  great  weight  of  authority  in  this  coun- 
try; McLouth  v.  Hunt,  154  N.  Y.  179,  48 
N.  E.  548,  39  L.  R.  A.  230;  Ashhurst  v. 
Field's  Adm'r,  26  N.  J.  Eq.  1;  Appeal  of 
Earp,  2S  Pa.  368;  Smith's  Estate.  140  Pa. 
344,  21  Atl.  438,  23  Am.  St.  Rep.  237;  Thom- 
as v.  Gregg,  "S  Md.  545,  28  Atl.  565,  44  Am. 
St.  Rep.  310;  Hite's  Devisees  v.  Hite's  Ex'r. 
93  Ky.  257,  20  S.  W.  778,  19  L.  R.  A.  173,  40 
Am.  St.  Rep.  1S9 ;  Pritchitt  v.  Trust  Co.,  96 
Tenn.  472,  36  S.  W.  10G4,  33  L.  R.  A.  S56. 

In  Pennsylvania  it  is  held  that  when 
stock  is  bequeathed  in  trust  for  the  use  of 
one  for  life  with  remainder  over,  surplus 
profits  accumulated  during  the  testator's 
life,  but  not  divided  until  after  his  death, 
belong  to  the  corpus  of  his  estate;  while 
dividends  of  earnings  made  after  his  death, 
whether  in  cash,  stock,  or  scrip,  go  to  the 
tenant  for  life;  Smith's  Estate,  140  Pa.  344, 

21  Atl.  43S,  23  Am.  St.  Rep.  237.  In  Appeal 
of  Earp,  28  Pa.  36S,  the  earnings  from  which 
a  stock  dividend  was  declared  had  accumu- 
lated partly  before  and  partly  after  the 
death  of  the  testator,  and  the  court  held 
that  such  dividend  should  be  apportioned  be- 
tween the  corpus  and  income  in  the  propor- 
tion that  the  value  of  the  stock  at  the  tes- 
tator's death  bore  to  the  value  of  the  stock, 
including  the  new  shares,  after  the  dividend. 
The  principle  of  apportionment  of  extraor- 
dinary dividends,  earned  partly  before  and 


partly  after  the  inception  of  the  life  es 
has  also  been  recognized  and  applied;  Thom- 
as v.  Gregg,  78  Ind.  545,  - 
Bt  Rep.  310;  Van  i  ><  r<  c  v.  t  N.  J. 

Bq.  176,  97  Am.  .  i  -  Pratt  v. 

38  X.  J.   Eq.  oil.     In   Hawaii 
er  discussing  the  various  ro  d  the 

doctrine  which  i  divi- 

dends  alike,    holding  that   only    BO    ED  . 
the  new  Btocb  allotted  to  the  I 
of   the   par   value   of    the    St 
should  be  apportioned  to  the  life  tenant,  and 
the  rest  should  be  held  as  part  of  tl. 
pus;  12  Haw.  309. 

The  value  of  a  right  to  subscribe  to  addi- 
tional Btock,  which  depends  on  the  ean 
of  the  corporation  since  the  creation  of  a 
trust  for  the  benefit  of  a  life  tenant  and  re- 
mainderman, is  income ;  Bolbrook  v.  Hoi- 
brook.  74  N.  II.  201,  66  Atl.  124,  12  E.  R.  A. 
(X.  S.)  768. 

In  England  it  was  at  first  held  that  all 
extra  dividends  belonged  to  the  remainder- 
man; in  Ves.  185;  1  Yes.  800;  but  the  House 
of  Eords  finally  determined  that  stock  divi- 
dends should  pass  to  the  remainderman  and 
cash  dividends  to  the  life  tenant,  except  in 
the  case  of  companies  which  could  not  legal- 
ly increase  their  capital  stock,  and  extra 
dividends  should  go  to  the  remainderman; 
12  App.  Cas.  385. 

When  arising  under  a  will,  the  testator's 
intention  must  be  ascertained,  and  this  is 
ordinarily  that  the  life  tenant  shall  have 
the  income  and  bonuses  declared  by  the  com- 
pany ;  [1893]  •".  Ch.  337  (C.  A.),  follow!] 
App.  ('as.  385,  where,  upon  an  examination 
of  many  authorities,  it  was  held  that  a  re- 
served fund  set  apart  out  of  profits  and  aft- 
erwards distributed  as  a  bonus  dividend,  to 
be  applied  by  stockholders  in  part  payment 
of  a  new  allotment  of  shares  partly  paid  up. 
was  held  capital.  Bramwell,  L.  J.,  said  he 
could  deduce  no  principle  from  the  authori- 
ties. 

A  note  in  26  llarv.  e.  Rev.  77,  classifies  the 
cases  as  follows:     in  Massachusetts  and  a 
number  of  cases  following  the   rule  of   that 
state,   it  was  held  that  stock  dividends 
to    the    remaindermen    and    cash    dividends 
from  earnings  to  the  life  tenanl  ;  Lyman  v. 
Pratt,  183  Mass.  58,  66  N.  E.  123;  Boardman 
v.  Mansfield,  79  Conn.  634,  66  Atl.  169;   De> 
Koven  v.  Alsop,  205  ill.  309,  68  N.  E.  I 
L.  R.  A.  587;  Milieu  v.  Cuerrard.  ' 
-l  I  Am.   Rep.  720;  Bryan  v.  Alkln  (D< 
Atl.    817.       In    Pennsylvania    and    - 
lowing    the   same   rule,    the   courts   hav. 
tingnished    between   the   life   tenant    and    re- 
mainderman   with    respect    to   dividends   rep- 
resenting'  earni  Since  the  crea- 
tion of  the  trust  fund:  Earp'e  28  Pa. 
368;  Van  Doren  v.  Olden,  19  N.  3.  Eq.  176, 
<>7  Am.  i>'               !  aomas  v.               i  -  Md. 
545,  28  Atl.  B  15,  4  l  Am.  S 
lein  v.   Soehnlein,  146  Wis.  330,  131  N.  W. 
739;    Miller  v.   Payne,   150   Wis.   354,   136    X. 


DIVIDEND 


902 


DIVISIBLE 


W.  811 ;  Pritchitt  v.  Trust  Co.,  96  Tenn.  472, 
36  S.  W.  1064,  33  L.  R.  A.  856. 

Another  rule  adopted  in  New  York  and 
Kentucky  gives  the  dividends  to  the  life  ten- 
ant, whether  they  be  of  stock  or  cash  repre- 
senting accumulated  earnings;  McLouth  v. 
Hunt,  154  N.  Y.  179,  48  N.  E.  54S,  39  L.  R. 
A.  230;  Kite's  Devisees  v.  Kite's  Ex'rs,  93 
Ky.  257,  20  S.  W.  778,  19  L.  R.  A.  173,  40 
Am.  St.  Rep.  189.  Other  cases  follow  so 
much  of  the  Massachusetts  rule  as  treats 
stock  dividends  as  part  of  the  principal; 
Gibbons  v.  Mahon,  136  U.  S.  549,  10  Sup.  Ct. 
1057,  34  L.  Ed.  525;  In  re  Brown,  14  R.  I. 
371,  51  Am.  Rep.  397;  Kaufman  v.  Woolen 
Mills  Co.,  93  Va.  673,  25  S.  E.  1003.  The  con- 
clusion is  reached  by  the  writer  (26  Harv. 
L.  Rev.  77)  that  while  all  the  rules  stated 
are  open  to  objections,  that  of  the  Massachu- 
setts courts  is  the  most  workable. 

See  42  Amer.  L.  Rev.  25,  for  a  discussion 
of  the  subject. 

As  used  in  the  United  States  Corporation 
Tax  Act  (August  5,  1909),  the  so-called  divi- 
dends of  a  mutual  life  insurance  company 
doing  business  on  the  level  premium  plan, 
consisting  merely  of  the  portion  of  the  load- 
ing of  a  premium  charged  in  excess  of  the 
cost  of  insurance  and  returned  annually  aft- 
er the  first  year  to  the  policy  holders  to 
reduce  their  subsequent  premiums,  are  not 
income  and  therefore  not  taxable  under  that 
act ;  Mutual  Benefit  Life  Ins.  Co.  v.  Herold, 
198  Fed.  199  (an  instructive  case  on  the  prac- 
tice of  life  insurance  companies  in  this  re- 
spect) ;  to  the  same  effect,  Mutual  Benefit 
Life  Ins.  Co.  v.  Com.,  128  Ky.  174,  107  S.  W. 
802 ;  Fuller  v.  Ins.  Co.,  70  Conn.  647,  41  Atl. 
4 ;  L.  R.  14  App.  Cas.  381. 

In  another  sense,  according  to  some  old 
authorities,  dividend  signifies  one  part  of 
an  indenture. 

DIVINE  RIGHT  OF  KINGS.  This  theory 
"was  in  its  origin  directed,  not  against  popu- 
lar liberty,  but  against  papal  and  ecclesias- 
tical claims  to  supremacy  in  temporal  as 
well  as  spiritual  affairs."  Figgis,  "The  The- 
ory of  the  Divine  Right  of  Kings." 

DIVINE  SERVICE.  The  name  of  a  feudal 
tenure,  by  which  the  tenants  were  obliged 
to  do  some  special  divine  services  in  cer- 
tain, as  to  sing  so  many  masses,  etc.  2  Bla. 
Com.  102 ;  Mozl.  &  W.  Diet. 

In  its  modern  use  the  term  does  not  in- 
clude Sunday  schools;  Appeal  of  Gass,  73 
Pa.  39,  13  Am.  Rep.  726. 

D I  VISA.  In  Old  English.  A  device,  award, 
or  decree ;  also  a  devise ;  bounds  or  limits  of 
division  of  a  parish  or  farm.  Also  a  court 
held  on  the  boundary,  in  order  to  settle  dis- 
putes of  the  tenants.    Wharton. 

DIVISIBLE.  That  which  is  susceptible  of 
being  divided. 

A  contract  cannot,  in  general,  be  divided 
in  such  a   manner   that   an   action  may  be 


brought,  or  a  right  accrue,  on  a  part  of  it; 
Shaw  v.  Turnpike  Co.,  2  Pen.  &  W.  (Pa.) 
454.  But  some  contracts  are  susceptible  of 
division :  as,  when  a  reversioner  sells  a  part 
of  the  reversion  to  one  man  and  a  part  to 
another,  each  shall  have  an  action  for  his 
share  of  the  rent  which  may  accrue  on  a 
contract  to  pay  a  particular  rent  to  the  re- 
versioner; Thomas  v.  Smith,  3  Whart.  (Pa.) 
404.  See  Apportionment.  But  when  it  is  to 
do  several  things  at  several  times,  an  action 
will  lie  upon  every  default;  Badger  v.  Tit- 
comb,  15  Pick.  (Mass.)  409,  26  Am.  Dec.  611. 
See  Aldrich  v.  Fox,  1  Greenl.  (Me.)  316; 
Symmes  v.  Frazier,  6  Mass.  344,  4  Am.  Dec. 
142 ;  Performance. 

DIVISION.  In  English  Law.  A  particu- 
lar and  ascertained  part  of  a  county.  In 
Lincolnshire  division  means  what  riding  does 
in  Yorkshire. 

DIVISION  OF  OPINION.  Disagreement 
among  those  called  upon  to  decide  a  matter. 
When,  in  a  company  or  society,  the  par- 
ties having  a  right  to  vote  are  so  divided 
that  there  is  not  a  plurality  of  the  whole  in 
favor  of  any  particular  proposition,  or  when 
the  voters  are  equally  divided,  it  is  said 
there  is  division  of  opinion.  The  term  is 
especially  applied  to  a  disagreement  among 
the  judges  of  a  court  such  that  no  decision 
can  be  rendered  upon  the  matter  referred  to 
them. 

When  the  judges  of  a  court  are  divided  in- 
to three  classes,  each  holding  a  different 
opinion,  that  class  which  has  the  greatest 
number  shall  give  the  judgment:  for  exam- 
ple, on  a  habeas  corpus,  when  a  court  is  com- 
posed of  four  judges,  and  one  is  for  remand- 
ing the  prisoner,  another  is  for  discharg- 
ing him  on  his  own  recognizance,  and  the 
two  others  are  for  discharging  him  absolute- 
ly, the  judgment  will  be  that  he  be  dis- 
charged; Rudyard's  Case;  Bacon,  Abr.  Hab- 
eas Corpus   (B  10),  Court,  5. 

A  certificate  under  the  act  of  1891  should 
contain  a  proper  statement  of  the  facts  on 
which  the  question  of  law  arises ;  the  entire 
record  should  not  be  transmitted;  Emsheim- 
er  v.  New  Orleans,  186  U.  S.  33,  22  Sup.  Ct. 
770,  46  L.  Ed.  1042. 

DIVISUM  IMPERIUM.  A  divided  juris- 
diction. Applied  e.  g.  to  the  jurisdiction 
of  courts  of  common  law  and  equity  over  the 
same  subject.     1  Kent  366. 

DIVORCE.  The  dissolution  or  partial  sus- 
pension, by  law,  of  the  marriage  relation. 

The  dissolution  is  termed  divorce  from  the  bond 
of  matrimony,  or,  in  the  Latin  form  of  the  expres- 
sion, a  vinculo  matrimonii;  the  suspension,  di- 
vorce from  bed  and  board,  a  mensa  et  thoro.  The 
former  divorce  puts  an  end  to  the  marriage ;  the 
later  leaves  it  in  full  force.  The  term  divorce  is 
sometimes  also  applied  to  a  sentence  of  nullity, 
which  establishes  that  a  supposed  or  pretended 
marriage  either  never  existed  at  all,  or  at  least  was 
voidable  at  the  election  of  one  or  both  of  the  parties. 

The  more  correct  modern  usage,  however,  con- 
fines the  signification  of  divorce  to  the  dissolution 


DIVORCE 


903 


RCE 


of  a  valid  marriage.  What  has  been  known  as  a 
divorce  a  mensa  et  thoro  may  more  properly  be 
termed  a  legal  separation.  So  also  a  sentence  or 
decree  which  renders  a  marriage  void  ab  initio,  and 
bastardizes  the  issue,  should  be  distinguished  from 
one  which  is  entirely  prospective  in  its  opera; 
and  for  that  purpose  the  former  may  be  termed  a 
sentence  of  nullity.  The  present  article  will  ac- 
cordingly be  confined  to  divorce  in  the  strict  ac- 
ceptation of  the  term.  For  the  other  branches  of 
the  subject,  see  Separation  a  Mensa  et  Thoro; 
Nulliiv  OF  Marriage. 

Marriage,  being  a  legal  relation,  and  not 
(as  sometimes  supposed)  a  mere  contract, 
can  only  be  dissolved  by  legal  authority. 

The  relation  originates  in   the 
the  parties,  but,  once  entered  Into,  it   must 
continue  until  the  death  of  either  husband 
or  wife,  unless  sooner  put  an  end  to  by  the 
sovereign  power,     in   Maynard   v.   Hill,   125 
U.  S.  210,  8  Sup.  Ct.  723,  31  L.  Ed.  654,   ii 
is  said  that  whilst  marriage  is  often  termed 
by  text  writers  and    in    decisions    of   courts 
a  civil  contract,  it  is  something  more.     When 
the  contract   to   marry    is   executed    by    the 
marriage,  a   relation   between   the  parlies  is 
created    which    cannot    change      Other   con- 
tracts   may    be   modi  tied,    restricted,    or    en- 
larged, or  entirely  released   upon  the  < 
of  the   parties,   hut  not  so   with   marriage. 
The  relation  once  formed,  the  law  steps  in 
and  holds  the  parties  to  various  obligations 
and  liabilities.     The  supreme  court  then  ap- 
proves   the    views    laid    down    in    Adams    v. 
Palmer,  51   Me.- 483,    whore   it   is   said    that 
when   the  contracting   parties   have  entered 
into   the   marriage   state,    they    have   not   so 
much  entered  into  a  contract  as  into  a  new 
relation,  the  rights,  duties,  and  obligations  of 
which  rest  not  upon  their  agreement,  hut  up- 
on the  general  law  of  the  state,  statutory  or 
common;  they  are  of  law,   not  of  contract. 
It  was  of  contract  that  the  relation  should 
be  established,  but  being  established  the  pow- 
er of  the  parties  as  to  its  extent  or  dura- 
tion is  at  an  end.    Their  rights  under  it  are 
determined  by  the  will  of  the  sovereign  as 
evidenced   by  the  law.     They  can   neither    be 
modified   nor  changed  by   any  agreement   of 
the   parties.     It  is   a    relation   for    lite   and 
the  parties  cannot  terminate  it  at  any  short- 
er period  by  virtue  of  any  contract  they  may 
make.     "Marriage  has  been  said  to  be  some- 
thing  more   than   a   mere   contract,    religious 
or  civil;  to  he  an  institution";   L.  R.  1  P.  & 
D.  130.     In  England,  until  the  middle  of  the 
last   century    no   authority    existed    in    any 
of  the  judicial  courts  to  grant  a  divorce  in 
the  strict  sense  of  the  term.     The  subject  ot 
marriage  and  divorce  generally  belonged  ex- 
clusively to  the  various  ecclesiastical  courts; 
and  they  were  in  the  constant  habit  of  grant- 
ing what  were  termed  divorces  a  mensa  ct 
thoro,   for   various  causes,  and   of  pronounc- 
ing  sentences   of   nullity;    but    they    had    no 
power  to  dissolve  a  marriage,  valid  and  bind- 
ing in   its  origin    tor  causes  arising  subse- 
quent to   its   solemnization.     For    that    i im- 
pose recourse  must  be  had  to  parliament;  2 


Burn,   EJccL    Law   202;    Macq.   Pari.    Pr.   47b 
(after  bavin-   first  obtail 

:    dam- 

against   the  adult 

Crim.  con.     This  pr... 
Iiut     in     Is.,,     a     COU    I 
Court  for  Divorce  and  Mi 
upon    which    v. 

jurisdiction    over    matrimonial    m 

d    in   the   various  •■ 
ami   also  the  jurisdiction   tbi 

Cised  by  parliament  in  grantii 

present    divorce   causes   are    heard,   in    the 
first   instance,  in  the  Probate,   i  >ivon  ■ 
Admiralty    Division   of   the    High 
Justice,    whence  an  appeal    lies  to   tlie   Court 

of  Appeal 

in  Ireland  there  is  no  divorce  a  vinculo, 
excepl   by  a<t  of  parliament 

In  this  country  the  usage  has  been  vai 
Formerly    it    was    common    lor    the    various 
state    legislatures,    like    the    English    parlia- 
ment, to  -rant  divorces  bj  Bpecial  act    This 
practice  is  now  much  leBS  common.     In  many 
states  it   has   been  expressly   prohibited   by 
state  constitutions;   1  Bish.  .Mar.  &  i».  s  1471. 
Such    an    act     is    constitutional;      Wright     v. 
Wright's  Lessee,  2  Md.  i-':».  56  Am. 
Berthelemy  v.  Johnson,  ::  B.  Monr.  I  K 
38  Am.  Dec.  179;  and  does  not  offend  ag 
the    constitutional     provision     which     forbids 
laws  impairing 'the  obligation  of 
even  though  there  was  no  valid  ground  for 
divorce  and  the  wife  was  not  not! 
nard  v.  Hill,  125  r.  s.  190,  8  Sup.  i 

L.  Ed.  654,  where  the  husband  was  a  resident 
of   the   territory.      Bee   ah  v.    Imket, 

90  Wis.  L'7L\  63  X.  W.  83,  31  I,  i:.  A.  5 
Am.  st.  Bep.  928.    Generally,  at  the  pr 
the  jurisdiction   to   grant   divorc 
conferred  by  statute  upon  courts  of  equity, 
or  courts  pi  equity  powers,  to  i 

I   in  accordance  with  the  general  prin- 
ciples  of   equity    practice,    Bubject    to    such 
modifl  ations  as  the  statute  may  direct.     The 
action  is  statutory  only;    there  is  no  COmmon- 
law  jurisdiction  over  the  subject  of  di\ 
Aekerman  v.  Ackerman,  200  N.  V.  7.:. 
E.    192.     The  practice  of  the  English  eccle- 
siastical  courts,  which  is  also  the  foundation 
ol'  the  practice  of  (be  new  court    for  divoi 
and     matrimonial     causes     in     England,     1 
never   been   adopted    to   any   considerable   ex- 
tent  in   this  Country;     but   it   is  said  that    in 
some   jurisdictions    the    principles    and    pra 
tice  of  tile  ecclesiastical  courts   are  followed 
so    far  as   they  are  ap[  to  our  alto: 

conditions  and  in  a  cord  with  the  spirit  of 
our  laws;  2  Bish.  Mar.  &  Div.  460.  See  Le 
Barron  v.  Le  Barron,  ."..".  Vt  365;  J.  <;.  v. 
II.  <;..  :•.::  Md.  401,  ::  Am.  Rep.   U 

Numerous  and  difficult  questions  are  con- 
stantly arising  in  regard  to  the  validity  in 
one  state  of  divorces   granted   1;.  rtB 

or  legislature  of  another  state.     The  SUbj< 
is   treated    in    12   Pish.    Mar.    Div.    and    Sep.    § 
1-S.     The   learned   author    there    stales   the 


DIVORCE 


904 


DIVORCE 


following  propositions,   which  he  elaborates 
with  great  care:     First,  the  tribunals  of  a 
country  have  no  jurisdiction  over  a  cause  of 
divorce,  wherever  the  offence  may  have  oc- 
curred, if  neither  of  the  parties  has  an  actual 
bona  fide  domicil  within  its  territory;    sec- 
ondly, to  entitle  the  court  to  take  jurisdic- 
tion, it  is  sufficient  for  one  of  the  parties  to 
be  domiciled  in  the  country;    both  need  not 
be,  neither  need  the  citation,  when  the  dom- 
iciled party  is  plaintiff,  be  served  personally 
on  the  defendant,   if  such   personal   service 
cannot  be  made,  but  there  should  be  reason- 
able constructive   notice,   at   least;    thirdly, 
tbe  place  where  the  offence  was  committed, 
whether  in  the  country  in  which  the  suit  is 
brought  or  a  foreign  country,  is  immaterial; 
fourthly,   the  domicil  of  the  parties  at  the 
time  of  tbe  offence  committed  is  of  no  conse- 
quence, the  jurisdiction  depending  on  their 
domicil  when  the  proceeding  is  instituted  and 
the  judgment  is  rendered  ;  fifthly,  it  is  imma- 
terial to  this  question  of  jurisdiction  in  what 
country    or   under   what   system   of   divorce 
laws  the  marriage  was  celebrated;    sixthly, 
without  a  citation  within  the  reach  of  pro- 
cess, or  an  appearance,  the  jurisdiction  ex- 
tends only  to  the  status  and  what  depends 
directly  thereon,  and  not  to  collateral  rights. 
The   doctrine   of    the    first    proposition    is 
said  not  to  have  been  thoroughly  established 
in  England;    2  Bish.  Mar.  D.  &  Sep.  §  43; 
but  it  is  fully  established  in  America ;   Davis 
v.  Com.,  13  Bush  (Ky.)  318;    Hood  v.  State, 
56  Ind.  263,  26  Am.  Rep.  21 ;  State  v.  Arming- 
ton,  25  Minn.  29;    People  v.   Smith,  13  Hun 
(N.   Y.)    414;     Cast   v.   Cast,   1   Utah,    112; 
Smith  v.  Smith,  43  La.  Ann.  1140,  10  South. 
248;    Morgan  v.   Morgan,   1  Tex.   Civ.   App. 
315,  21  S.  W.  154;   De  Meli  v.  De  Meli,  120 
N.  Y.  485,  24  N.  E.  996,  17  Am.  St.  Rep.  652 ; 
Watkins  v.  Watkins,  135  Mass.  83;   Arrington 
v.  Arrington,  102  N.  C.  491,. 9  S.  E.  200;   Ap- 
peal of  Piatt,  80  Pa.  501;    Andrews  v.  An- 
drews,  188  U.   S.  14,  23   Sup.  Ct.  237,  47   L. 
Ed.  366 ;    Bell  v.  Bell,  1S1  U.  S.  175,  21  Sup. 
Ct.  551,  45  L.  Ed.  804;    Streitwolf  v.  Streit- 
wolf,  181  U.  S.  179,  21  Sup.  Ct.  553,  45  L.  Ed. 
807.     Mr.  Bishop  maintains  the  second  prop- 
osition as  fully  supported  on  principle  and 
authority;    see  especially  Ditson  v.   Ditson, 
4  R.  I.  87;    Thompson  v.  State,  28  Ala.  12; 
Wakefield   v.   Ives,   35  la.  238;    Cheever   v. 
Wilson,  9  Wall.   (U.  S.)    108,  19  L.  Ed.  604; 
Richards  v.  Richards,  19  D.  C.  431 ;    but  see 
People  v.  Baker,  76  N.  Y.  78,  32  Am.  Rep. 
274;    Story,   Confl.   Laws,   Redf.   ed.     As  to 
the  third  proposition,  which  is  said  by  the 
same  author  to  be  universal,  see  Hanberry 
v.  Hanberry,  29  Ala.  719 ;    Clark  v.  Clark,  8 
N.  H.  21;    Holmes  v.  Holmes,  57  Barb.   (N. 
Y.)   305;    Pawling  v.  Willson,  13  Johns.    (N. 
Y.)  192.     The  fifth  proposition  is  universally 
recognized ;    see  Dorsey  v.  Dorsey,  7  Watts 
(Pa.)    349,    32   Am.   Dec.   767;     Harteau   v. 
Harteau,  14  Pick.   (Mass.)    181,  25  Am.  Dec. 
372;   Thompson  v.  State,  28  Ala.  12;   Stand- 


ridge  v.  Standridge,  31  Ga.  223.     See,  how- 
ever, 2  CI.  &  F.  568. 

When  both  husband  and  wife  are  domi- 
ciled in  the  state  where  the  divorce  is  grant- 
ed, the  decree  of  divorce  is  without  doubt 
valid  everywhere;  Leith  v.  Leith,  39  N.  H. 
38;  Harding  v.  Alden,  9  GreenL  (Me.)  140, 
23  Am.  Dec.  549;  Hanover  v.  Turner,  14 
Mass.  227,  7  Am.  Dec.  203;  Garner  v.  Garner, 
56  Md.  128;  Hunt  v.  Hunt,  72  N.  Y.  237,  28 
Am.  Rep.  129;  Jones  v.  Jones,  108  N.  Y.  415, 
15  N.  E.  707,  2  Am.  St.  Rep.  447 ;  Arrington 
v.  Arrington,  102  N.  C.  491,  9  S.  E.  200 ;  Hub- 
bell  v.  Hubbell,  3  Wis.  664,  62  Am.  Dec.  702 ; 
Cheely  v.  Clayton,  110  U.  S.  701,  4  Sup.  Ct. 
32S,  28  L.  Ed.  298;  Barrett  v.  Failing,  111 
U.  S.  524,  4  Sup.  Ct.  598,  28  L.  Ed.  505;  Roth 
v.  Roth,  104  111.  35,  44  Am.  Rep.  81.  See  L. 
R.  6  P.  D.  35. 

If  the  court  making  the  decree  had  juris- 
diction, it  will  be  held  conclusive  in  other 
states;  In  re  James'  Estate,  99  Cal.  374,  33 
Pac.  1122,  37  Am  St.  Rep.  60;  People  v. 
Allen,  40  Hun  (N.  Y.)  611;  Hawkins  v. 
Ragsdale,  80  Ky.  353,  44  Am.  Rep.  483 ;  Shaw 
v.  Shaw,  98  Mass.  158;  and  jurisdiction  will 
be  presumed ;  Knowlton  v.  Knowlton,  155 
111.  158,  39  N.  E.  595 ;  unless  want  of  it  ap- 
pears upon  the  record  ;  Werner  v.  Werner,  30 
111.  App.  159;  Collins  v.  Collins,  80  N.  Y.  1; 
Morey  v.  Morey,  27  Minn.  265,  6  N.  W.  783; 
or  it  may  be  shown  as  against  the  record ; 
Reed  v.  Reed,  52  Mich.  117,  17  N.  W.  720,  50 
Am.  Rep.  247;  Adams  v.  Adams,  154  Mass. 
290,  28  N.  E.  260,  13  L.  R.  A.  275. 

As  to  the  right  of  the  wife  to  acquire  a 
different  domicil  from  that  of  the  husband 
for  the  purpose  of  jurisdiction  in  a  suit  for 
divorce,  see  Domicil. 

There  has  been  much  difference  of  opinion 
as  to  the  extra-territorial  effect  of  construc- 
tive service  by  publication  as  between  states. 
If  both  parties  are  domiciled  within  the  state 
the  decree  is  of  force  in  other  states;  Hood 
v.  Hood,  11  Allen  (Mass.)  196,  87  Am.  Dec. 
709  ;  Burlen  v.  Shannon,  115  Mass.  438  ;  Hunt 
v.  Hunt,  72  N.  Y.  217,  28  Am.  Rep.  129 ;  but 
if  only  one,  the  decree  determines  his  or  her 
status;  Pennoyer  v.  Neff,  95  U.  S.  714,  734, 
24  L.  Ed.  565;  Shafer  v.  Bushnell,  24  Wis. 
372 ;  Adams  v.  Adams,  154  Mass.  290,  28  N. 
E.  260,  13  L.  R.  A.  275.  Where  the  custody 
of  children  is  involved  it  is  held  that  con- 
structive service  of  summons  cannot  give 
jurisdiction  where  the  defendant  and  the 
children  are  out  of  the  state  and  do  not  ap- 
pear, even  if  their  domicil  is  within  the 
state;  De  la  Montanya  v.  De  la  Montanya, 
112  Cal.  101,  44  Pac.  345,  32  L.  R.  A.  82,  53 
Am.  St.  Rep.  165. 

The  view  cited  from  Bishop  concerning 
the  extra-territorial  operation  of  the  decree 
under  the  constitution  is  held  in  Harding  v. 
Alden,  9  Greenl.  (Me.)  140,  23  Am.  Dee.  549; 
Anthony  v.  Rice,  110  Mo.  233,  19  S.  W.  423 ; 
Chapman  v.  Chapman,  48  Kan.  636,  29  Pac. 
1071;   Thompson  v.  Thompson,  91  Ala.  591,  8 


DIVORCE 


905 


DIVORCE 


South.  419,  11  L.  R.  A.  443;  the  contrary 
view  is  taken  in  Van  Inwagen  v.  Van  In- 
wagen,  86  Mich.  333,  49  N.  W.  154 ;  Cook  v. 
Cook,  56  Wis.  195,  14  N.  W.  33,  443,  43  Am. 
Rep.  706 ;  Flower  v.  Flower,  42  N.  J.  Eq.  152, 
7  Atl.  669;  Doerr  v.  Forsytbe,  5.0  Ohio  St. 
726,  35  N.  E.  1055,  40  Am.  St.  Rep.  703;  Com. 
v.  Steiger,  12  Pa.  Co.  Ct.  334;  [1893 J  Prob. 
89. 

Where  the  husband  removed  to  Mlnni 
and  there  secured  a  divorce  on  constructive 
service  of  notice  on  the  wife,  who  did  not 
appear,  it  was  held  in  a  subsequent  suit  for 
divorce  by  the  wife  in  New  York  that  the 
Minnesota  decree  was  invalid;  Williams  v. 
Williams,  130  N.  Y.  193,  29  N.  E.  98,  14  L.  R. 
A.  220,  27  Am.  St.  Rep.  517 ;  and  to  the  same 
effect  are  O'Dea  v.  O'Dea,  101  N.  Y.  23,  4  N. 
E.  110 ;  People  v.  Baker,  76  X.  Y.  78,  32  Am. 
Rep.  274.  The  ground  of  these  cases  is  that 
the  court  rendering  the  decree  under  such 
circumstances,  though  having  jurisdiction  to 
establish  the  status  of  the  parties  in  the 
state  where  the  divorce  is  granted,  yet  has 
no  jurisdiction  over  their  status  in  New 
York;  People  v.  Baker,  76  N.  Y.  78,  32  Am. 
Rep.  274;  Williams  v.  Williams,  130  N.  Y. 
193,  29  N.  E.  98,  14  L.  R.  A.  220,  27  Am.  St. 
Rep.  517;  Lynde  v.  Lynde,  162  N.  Y.  405,  56 
N.  E.  979,  48  L.  R.  A.  679,  76  Am.  St.  Rep. 
332 ;  Atherton  v.  Atherton,  155  N.  Y.  129,  49 
N.  E.  933,  40  L.  R.  A.  291,  63  Am.  St.  Rep. 
650,  which  case  was  reversed  in  Atherton  v. 
Atherton,  181  U.  S.  155,  21  S up.  Ct.  544,  45 
L.  Ed.  794,  where  it  was  held  that  actual  no- 
tice need  not  be  given  to  a  non-resident  de- 
fendant to  bind  her  by  a  decree  of  divorce,  if 
reasonable  efforts  to  give  her  actual  notice 
as  required  by  the  statutes  of  the  state  grant- 
ing the  decree  are  made.  The  decision  in 
this  case  was  expressly  placed  on  the  ground 
that  the  suit  was  brought  in  the  state  of  the 
matrimonial  domicil.  A  later  case  in  the  su- 
preme court  held  that  the  mere  domicil  with- 
in the  state  of  one  party  to  the  marriage  does 
not  give  the  courts  of  that  state  jurisdiction 
to  render  a  decree  of  divorce  enforceable  In 
all  the  other  states  by  virtue  of  the  full  faith 
and  credit  clause  of  the  federal  constitution, 
against  a  non-resident  who  did  not  appear 
and  was  only  constructively  served  with  no- 
tice of  the  action;  Haddock  v.  Haddock.  201 
U.  S.  502,  26  Sup.  Ct.  525,  50  L.  Ed.  867,  5 
Ann.  Cas.  1.  The  court  in  this  case  made  the 
following  classification:  (a)  States  where 
the  power  to  decree  a  divorce  is  recognized, 
based  upon  the  mere  domicil  of  the  plaintiff, 
although  the  decree  when  rendered  will  be 
but  operative  within  the  borders  of  the  state, 
wholly  irrespective  of  any  force  which  may 
be  given  such  decree  in  oilier  states.  Under 
this  heading  all  of  the  states  are  embraced 
with  the  possible  exception  of  Rhode  Island. 
(b)  States  which  decline,  even  upon  prin- 
ciples of  comity,  to  recognize  and  enforce  as 
to  their  own  citizens,  within  their  own  bor- 
ders, decrees  of  divorce   rendered   in   other 


states,  when  the  court  rendering  the  same 
had  jurisdiction  over  only  one  of  the  parties. 
Under  this  heading  is  embraced  Massachu- 
setts, New  J.-;  ,  the  qualification 
made  by  the  decision  in  Felt  N.  J. 
6,  46  Atl.                        1.  1071,  47   L.   K    A. 

-  .  Am.   st.   Rep.  612)    a  id 
(c)  States  which,   whilst  giving  some  effect 
to  decrees  of  divorce   rendered   a 
citizens,  in  other  states  whei  rl  had 

jurisdiction    of    the    plaintiff    alon 
place  the  effect  given  to  such  decrees  upon 
the  principle  of  state  comity  alone,  or 
BUCh  limitations  upon  the  BU  to  such 

decree   as   Indubitably   establishes   that   the 
recognition  given  is  a  result  merely  of  state 
comity.     As   the   greater   Includes    the 
this  class  of  course  embra  under 

the  previous  heading.  It  also  includes  Ala- 
bama, Maine.  Ohio,  and  Wisconsin.  (d) 
Cases  which,  although  not  actually  so 
Lag,  yet  lend  themselves  to  the  view  that  >  r 
parte  decrees  of  divorce  rendered  In  other 
states  would  receive  recognition  by  virtue  of 
the  due  faith  and  credit  clause.  And  this 
class  embraces  Missouri  and  Rhode  Island. 

This  analysis  and  classification,  the  court 
said,  serves  conclusively  to  demonstrate  that 
the  limited  recognition  which  is  given  in 
most  of  the  Btates  to  such  ex  parte  decrees 
of  divorce  rendered  in  other  states  is  wholly 
inconsistent  with  the  theory  that  such  limit- 
ed recognition  is  based  upon  the  operation  of 
the  full  faith  and  credit  clause  of  the  consti- 
tution, and  on  the  contrary  is  consistent  only 
with  the  conception  that  such  limited  : 
uition  as  is  given  is  based  upon  state  comity. 
In  Haddock  v.  Haddock,  201  TJ.  S.  662,  26 
Sup.  Ct.  525,  "O  L.  Ed.  B67,  r,  Ann.  Caa.  1.  it 
was  held  that  a  decree  of  divorce  rendered 
in  Connecticut,  where  the  husband  had  his 
domicil,  against  a  non-resident  defendant 
who  bad  never  been  domiciled  in  that  state. 
was  not.  by  virtue  of  the  full  faith  and  credit 
clause,  enforceable  in  all  the  other  Btati  a. 

This  decision  was  by  a  divided  court.  In 
19  Harv.  L.  Rev.  586,  it  is  elaborately  crit- 
icised, but.  the  supreme  court  of  Utah 
{infra),  in  deciding  whether  it  was  Justified 
in  granting  a  divorce,  or  whether  it  had  ju- 
risdiction, where  the  husband  had  abandoned 
his  matrimonial  domld]  in  that  state,  was 
constructively  served  with  notice,  and  failed 
to  appear,  followed  the  Haddock  Case  and 
in  a  careful  analysis  of  It.  to  determine  if 
under  its  ruling  the  decision  of  the 
court  would  be  entitled  to  full  faith  and 
credit,  held  that  it  would;  that  a  mai 
not  change  the  matrimonial  domicil  by  aban- 
doning his  wife  ami  going  into  another  state 
to  reside,  and  laid  down  the  following  prop- 
ositions deduced  from  it: 

Divorces  may  be  granted  by  state  courts, 
upon  constructive  service,  where  statutory 
cause  and  residence  co-exist,  which  become 
binding  upon  the  parties,  the  courts  of  all 
states,  and  upon  all  persons:     (1)   In  cases 


DIVORCE 


906 


DIVORCE 


where  the  parties  are  residents  of  the  state 
at  the  time  of  the  marriage  and  thus  estab- 
lished a  domicil  of  matrimony  in  that  state 
and  the  complaining  party  continues  this 
domicil  up  to  the  time  of  the  action.  (2). 
In  all  cases  where  the  parties  are  married 
out  of  the  state,  but  come  to  reside  in  the 
state  afterwards  and  recognize  the  marriage 
relation  within  the  state  and  thus  establish 
a  domicil  of  matrimony  therein,  and  the  par- 
ty bringing  the  action  continues  this  marital 
domicil  up  to  the  time  of  bringing  the  action. 
(3)  In  all  cases  where  a  statutory  cause  and 
residence  co-exist  where  personal  service  is 
had;  State  v.  Morse,  31  Utah  213,  87  Pac. 
705,  7  L.  R.  A.  (N.  S.)  1127. 

Where  the  full  faith  and  credit  clause  of 
the  constitution  is  invoked  to  compel  the  en- 
forcement in  one  state  of  a  decree  rendered 
in  another,  the  question  of  the  jurisdiction 
of  the  court  by  which  the  decree  was  render- 
ed is  open  to  inquiry,  and  if  there  was  no 
jurisdiction  either  of  the  subject-matter  or 
of  the  person  of  the  defendant,  the  courts  of 
another  state  ar&  not  required,  by  virtue  of 
the  full  faith  and  credit  clause,  to  enforce 
such  decree;  Haddock  v.  Haddock,  201  id. 
562,  26  Sup.  Ct.  525,  50  L.  Ed.  867,  5  Ann. 
Cas.  1. 

Where  substituted  service  was  made  upon 
a  non-resident  defendant  in  accordance  with 
the  laws  of  the  state  granting  the  divorce,  it 
has  been  held  in  New  York  that  the  decree 
of  divorce  was  entitled  to  full  extra-terri- 
torial validity  under  the  full  faith  and  credit 
clause  of  the  federal  constitution ;  North  v. 
North,  47  Misc.  180,  93  N.  Y.  Supp.  512 ;  but 
the  deserted  spouse  had  acquired  a  bona  fide 
domicil  in  the  state  granting  the  decree.  It 
is  said  that  this  case  marks  an  important 
development  in  this  branch  of  the  New  York 
law  (19  Harv.  L.  Rev.  61),  rendered  neces- 
sary by  the  decision  of  the  supreme  court  in 
the  Atherton  Case,  181  U.  S.  155,  21  Sup.  Ct. 
544,  45  L.  Ed.  794,  reversing  155  N.  Y.  129, 
49  N.  E.  933,  40  L.  R.  A.  291,  63  Am.  St.  Rep. 
650,  which,  following  the  New  York  rule  that 
divorce  is  a  proceeding  in  personam,  required 
that  the  defendant  should  be  personally  serv- 
ed with  process  within  the  jurisdiction  of  the 
divorce  court. 

A  provision  in  the  Georgia  Code  of  1895, 
§  5237,  that  records  and  judicial  proceedings, 
properly  authenticated,  shall  have  such  faith 
and  credit  given  them  in  every  court  within 
the  United  States  as  they  have  by  law  or 
usage  in  the  court  from  which  they  were 
taken,  was  held  not  to  apply  to  a  decree  of 
divorce  granted  in  Kansas  based  on  construc- 
tive and  not  actual  service  -of  process  on  a 
wife  who  remained  in  Georgia ;  but,  it  not 
appearing  that  any  fraud  or  concealment  was 
practiced  by  the  husband,  the  Georgia  courts, 
recognized  the  validity  of  the  decree  on  the 
ground  of  comity;  Joyner  v.  Joyner,  131  Ga. 
217,  62  S.  E.  182,  18  L.  R.  A.  (N.  S.)  617, 
127  Am.  St  Rep.  220. 


A  decree  of  a  state  court,  having  jurisdic- 
tion of  the  parties,  that  a  divorce  granted  in 
another  state  is  valid,  is  held  binding  in  a 
third  state  in  an  attack  there  upon  such  de- 
cree; Bid  well  v.  Bid  well,  139  N.  C.  402,  52 
S.  E.  55,  2  L  R.  A.  (N.  S.)  324,  111  Am.  St. 
Rep.  797,  where  a  North  Dakota  decree  was 
assailed  for  lack  of  jurisdiction  and  for 
duress  and  fraud  by  the  husband  in  obtain- 
ing it.  The  Massachusetts  court,  in  which 
the  wife  sued  for  divorce,  held  the  Dakota 
decree  valid,  as  did  the  court  in  North  Car- 
olina, where  after  six  years  she  again  sued 
for  divorce  and  it  was  held  that  the  validity 
of  the  North  Dakota  divorce  was  established 
by  the  Massachusetts  court  and  the  plaintiff 
was  estopped  by  the  Massachusetts  decree 
from  further  questions  concerning  the  one  in 
Dakota. 

In  New  Jersey  it  was  held  that  a  court  of 
chancery,  on  a  bill  filed  by  a  wife,  had  ju- 
risdiction to  enjoin  the  husband  from  prose- 
cuting a  suit  for  divorce  in  another  state,  the 
jurisdiction  of  which  he  had  invoked  on  a 
false  and  fraudulent  allegation  of  his  resi- 
dence in  that  state ;  Kempson  v.  Kempson, 
58  N.  J.  Eq.  94,  43  Atl.  97;  Kempson  v. 
Kempson,  63  N.  J.  Eq.  783,  52  Atl.  360,  625, 
58  L.  R.  A.  484,  92  Am.  St  Rep.  682.  The 
defendant  in  this  suit  had  disregarded  the 
injunction  and  obtained  a  final  decree  of  di- 
vorce. He  returned  to  New  Jersey  with  a 
new  wife,  and  was  committed  for  contempt 
The  Vice  Chancellor  reported  a  decree  that 
the  defendant  should  be  fined  and  be  im- 
prisoned until  he  should  have  the  decree  of 
the  North  Dakota  court  set  aside.  On  ap- 
peal, the  order  of  the  Vice  Chancellor  was  so 
far  modified  as  to  require  the  defendant  to 
present  the  truth  to  the  court  in  North 
Dakota  and  in  good  faith  to  urge  that  its  de- 
cree be  set  aside,  as  only  that  court  could 
vacate  its  decree,  and  the  defendant  clearly 
had  no  power  to  insure  the  result.  And  see 
Kittle  v.  Kittle,  8  Daly  (N.  Y.)  72,  where  a 
defendant  in  a  divorce  suit  was  enjoined 
from  prosecuting  a  subsequent  suit  in  an- 
other state  for  a  divorce  which  he  intended 
to  press  to  judgment,  before  the  former  was 
terminated,  where  all  the  witnesses  were  in 
the  former  state,  and  the  wife  was  pecun- 
iarily unable  to  defend  a  suit  in  the  other 
state. 

In  several  states  divorces  are  by  statute 
inoperative  when  a  person  goes  out  of  the 
state  and  obtains  elsewhere  a  divorce  for  a 
cause  not  valid  in  the  state  from  which  he 
goes.  And  in  Massachusetts  the  courts  have 
held  invalid  decrees,  for  causes  not  cogniza- 
ble in  that  state,  granted  in  another  state, 
for  a  divorce  when  the  party  went  there  to 
procure  it;  Sewall  v.  Sewall,  122  Mass.  156, 
23  Am.  Rep.  299;  or  to  annul  a  marriage; 
Loker  v.  Gerald,  157  Mass.  42,  31  N.  E.  709, 
16  L.  R.  A.  497,  34  Am.  St.  Rep.  252;  and 
such  a  decree  does  not  violate  the  full  faith 
and  credit  clause  of  the  United  States  con- 


DIVOKCE 


907 


Dl\ 


stitution ;  Andrews  v.  Andrews,  188  U.  S.  14, 
23  Sup.  Ct.  237,  47  L.  Ed.  366  ;  and  such  a 
divorce  was  held  invalid  as  against  public 
policy,  in  Wisconsin,  where  the  marriage  in 
another  state  was  considered  as  having  been 
entered  into  for  the  purpose  of  evading  the 
statute;  Lanham  v.  Lanbam,  136  Wis.  360, 
117  N.  W.  787,  17  L.  R.  A.  (X.  S.)  804,  128 
Am.  St  Rep.  1085;  but  where  it  was  not 
shown  that  the  party  went  to  the  other  state 
for  that  purpose  and  the  wife  had  executed 
ase  to  the  husband,  she  was  not  per- 
mitted to  impeach  the  decree;  Loud  v.  Loud, 
129  Mass.  14;  and  so  where  an  appearance 
was  entered  in  the  other  state;  El  I 
Wohlfrom,  55  Cal.  3S4 ;  or  where  there  lias 
heen  obtained  a  bona  fide  domicil  elsewhere; 
Gregory  v.  Gregory,  76  Me.  535. 

The  supreme  court  of  the  United  States 
has  no  jurisdiction  to  re-examine  the  judg- 
ment of  a  state  court,  recognizing  as  valid 
the  decree  of  a  court  of  a  foreign  country  an- 
nulling a  marriage;  Roth  v.  Ehman,  107  1*. 
S.  319,  2  Sup.  Ct.  312,  27  L.  Ed.  409.  See 
Whart.  Confl.  Laws. 

It  was  never  the  practice  of  the  English 
parliament  to  grant  a  divorce  for  any  other 
cause  than  adultery;  and  it  was  the  gen- 
eral rule  to  grant  it  for  simple  adultery  only 
when  committed  by  the  wife,  and  upon  the 
application  of  the  husband.  To  entitle  the 
wife,  other  circumstances  must  ordinarily 
concur,  simple  adultery  committed  by  the 
husband  not  being  sufficient;  Macq.  Pari.  Pr. 
473.  The  English  statute  of  20  &  21  Vict.  c. 
85,  before  referred  to,  prescribes  substantial- 
ly the  same  rule, — it  being  provided,  §  27, 
that  the  husband  may  apply  to  have  his  mar- 
riage dissolved  "on  the  ground  that  his  wife 
has,  since  the  celebration  thereof,  been  guilty 
of  adultery,"  and  the  wife,  "on  the  ground 
that,  since  the  celebration  thereof,  her  hus- 
band has  been  guilty  of  incestuous  bigamy, 
or  of  bigamy  with  adultery,  or  of  rape,  or  of 
sodomy,  or  bestiality,  or  of  adultery  coupled 
with  such  cruelty  as  without  adultery  would 
have  entitled  her  to  a  divorce  a  mensa  ct 
thoro,  or  of  adultery  coupled  with  desertion, 
without  reasonable  excuse,  for  two  years  or 
upwards." 

In  this  country  the  question  depends  up- 
on the  statutes  of  the  several  states,  the 
provisions'  of  which  are  far  from  uniform. 
In  some  of  the  states,  also,  the  matter  la 
left  wholly  or  in  part  to  the  discretion  of 
the  court.  See  Bish.  Mar.  D.  &  Sep.;  Weber 
v.  Weber,  16  Or.  163,  17  Pae.  866.  For  more 
specific  information,  recourse  must  be  bad  to 
the  statutes  of  the  several  Btates. 

Some  of  the  more  important  grounds  for 
divorce  are:  desertion;  for  a  statutory  pe- 
riod; Whitfield  v.  Whitfield,  89  Ga.  471,  15 
S.  E.  543;  Millowitsch  v.  Millowitsch,  It  111. 
App.  357;  Hemenway  v.  Hemenway,  65  N't- 
023,  27  Atl.  609  (see  Desertion)  ;  abandon- 
meni;  McLean  v.  .lanin,  4.">  La.  Ann.  664,  12 
South.  747;    adultery ;    Carter  v    Carter,  37 


111.  Ap;  N.   J. 

i  2,  22  Atl.  582;  tan  v. 

Lay 
v.   Day,  M    la.  22]    50  N.   W.  97 

Mayhew,  61  Coi  Am. 

St.  Rep.  195;  69  La* 

76  Ga.  319 :    Myers  ■■    M 

s.    EL   • 

drunki  nm  ss;    McBee  v.   McB 

29  l'ac  887,  29  Am.  St  B 

uier  v.  I  >.•  !.•    dernier,  45  La. 

South.  191  ;    Paj  i 

L.  R,  A.   |  N.  S.)  914,  VI 7  A: 
L05 1  ;     conviction    of    crinn .    In 
states;    incurable   insanity,  In   some 
failure  to  support;   and  impoi 
ship,   Incapacity  to  enter  into  the 
fraud,  duress,  etc. 

Fraud   in    the   contract   is   an   • 
wrong  dene   by   one   Bpouse   to  anoth  i 
affecting  the  essentia]  conditions  of  the  mar- 
riage status  as  practically  to  destroy  that 
relation,  and  render  the  continuance  of  the 
bond  an  injury  to  th<  -  well  as  to  the 

parties.  The  wrong  becomes  complete  on  the 
completion  of  the  marriage  contract.  It  may 
consist  in  false  statements  as  to  ex 
facts  which  affect  one  or  more  of  the  • 
tial  purposes  of  the  status.  The  injured 
spouse  may  however  condone  the  Injury  and 
accept  the  relation  or,  upon  discovery  of  the 
wrong,    may   apply   for   a   di\.  •       dd  v. 

Gould,  78  Conn.  242,  01  Atl.  604,  2  L  R.  A. 
(X.  S.)  531. 

Concealment  of  epilepsy  is  a  fraud  within 
the  meaning  of  a  statute  allowing  divorce  for 
fraud  in  the  contract  of  marriage,  where  the 
statute  forbids  an  epileptic  to  marry  under 
penalty  of  imprisonment  Such  statute  is 
valid  and  a  marriage  in  disregard  of  it  is 
voidable,  not  void ;    id. 

Where  a  statute  gave  a  court  of  chancery 
sole   cognizance    to    decree   a    marriage   null 
and  void  where  either  of  the  parties  \. 
the   time   insane,   drunkenness    was   held   not 
insanity  for  which  a  divorce  could  be  grant- 
ed ;    Elzey  v.  Elzey,  l  Houst  i  Del 
was  an  excessive  Indulgence  in  morphine  con- 
sidered a  ground  for  divorce  under  a  statute 
permitting  divorce  for  habitual  drunkei 
Youngs  v.  loungs,  130  [1L  230,  22  N.  I 
6  L.  R,  A.  548,  27  Am.  Sf  •  wson 

v.  Dawson,  23  Mo.  Lpp.  C69  it  is  Bald 
must  be  an  involuntary  tendency  to  b< 
Intoxicated   as  often   as   the   temptation   is 

presented,    which    comes    from    a    fixed    habit 
acquired  from  frequent  and  i  Lndul- 

;  McBee  v.  M  Bee,  22  I  >r.  32  I,  29  Pae 
ss;  29  Am.  st.  Rep.  613;  Burns  v.  Burns,  13 
Fla.  369.  As  an  Independent  ground,  drunk- 
enness  is  held  in  Maryland  to  furnish  no 
cause  for  divorce;  ShUtt  v.  Shutt,  71  Md. 
193,  17  Atl.  1024,  17  Am.  St.  Rep.  519;   Id 

on,  131  Pa.  162,  IS  Atl.  102L  Where 
the  statute  coupled  habitual  intemperance 
with  Intolerable  cruelty  as  a  cause  for  di- 
vorce, it  was  said  the  habitual  use  of  iutoxi- 


DIVORCE 


908 


DIVORCE 


eating  liquor,  though  producing  excitement, 
will  not  justify  a  divorce.  The  habit  must 
be  so  gross  as  to  produce  suffering  or  want 
in  the  family  to  a  degree  which  caunot  be 
reasonably  borne.  The  term  cannot  well  be 
defined,  but  must  be  applied  to  cases  as  they 
arise  by  inclusion  or  exclusion,  and  the  ex- 
istence of  the  condition  in  question  decided 
as  a  matter  of  fact ;  -  Dennis  v.  Dennis,  68 
Conn.  186,  36  Atl.  34,  34  L.  R.  A.  449,  57  Am. 
St.  Rep.  95,  where  it  is  said :  "While  there 
may  be,  on  the  one  hand,  such  a  clear  case  of 
intemperate  habits  as  to  justify  the  court  in 
saying  that  such  and  such  facts  constitute 
a  condition  of  habitual  intemperance,  or,  on 
the  other  hand,  such  an  entire  absence  of 
proof,  beyond  an  occasional  indulgence  in 
the  use  of  ardent  spirits,  as  to  warrant  the 
opposite  conclusion,  yet  the  main  field  of  in- 
quiry and  the  determination  of  the  question 
must  be  submitted  to  the  jury,  and  the  ques- 
tions on  this  submission  must  be  decided  by 
them." 

If  at  the  time  of  the  marriage  the  wife 
was  with  child  by  another  man,  it  may  be 
ground  for  divorce;  Baker  v.  Baker,  13  Cal. 
87 ;  or  the  marriage  may  be  declared  null 
and  void  ah  initio;  Reynolds  v.  Reynolds,  3 
Allen  (Mass.)  605;  Carris  v.  Carris,  24  N.  J. 
Eq.  516;  contra,  [1897]  P.  D.  263;  but  where 
the  wife  concealed  the  fact  that  she  had  been 
previously  married  and  divorced  and  had  a 
child,  it  was  not  such  fraud  as  to  entitle  the 
husband  to  a  sentence  of  nullity;  Donnelly 
v.  Strong,  175  Mass.  157,  55  N.  E.  892. 

The  existence  of  venereal  disease  at  the 
time  of  marriage  is  held  ground  for  annul- 
ment; Ryder  v.  Ryder,  66  Vt.  158,  28  Atl. 
1029,  44  Am.  St.  Rep.  833;  Smith  v.  Smith, 
171  Mass.  404,  50  N.  E.  933,  41  L.  R.  A.  800, 
68  Am.  St.  Rep.  440  (where  there  was  refusal 
to  consummate  and  the  court  confined  its 
decision  to  that  case,  considering  it  the 
stronger  because  of  the  prompt  action)  ;  and 
it  is  also,  during  marriage,  cause  for  divorce, 
being  put  upon  the  ground  that  the  commu- 
nication of  such  disease  to  the  other  spouse 
is  extreme  cruelty;  Cook  v.  Cook,  32  N.  J. 
Eq.  475;  28  E.  L.  &  Eq.  603,  29  L.  J.  Mat. 
57;  L.  R.  1  P.  &  D.  702,  Curt  678;  McMahen 
v.  McMahen,  186  Pa.  485,  40  Atl.  795,  41  L. 
R.  A.  802 ;  Morehouse  v.  Morehouse,  70  Conn. 
420,  39  Atl.  516;  Holthoefer  v.  Holthoefer, 
47  Mich.  260,  643,  11  N.  W.  150  (where  the 
doctrine  is  sustained,  though  the  divorce  was 
refused  in  a  case  termed  by  Cooley,  J.,  as 
"quite  peculiar,"  the  wife  being  found  dis- 
eased, with  no  suspicion  against  her  chastity, 
and  the  husband  found  on  examination  to 
have  no  signs  of  it) ;  and  having  the  disease 
has  been  held  sufficient  cause  without  com- 
municating it;  1  Hagg.  Eccl.  765;  Canfield 
v.  Canfield,  34  Mich.  519;  Hanna  v.  Hanna,  3 
Tex.  Civ.  App.  51,  21  S.  W.  720;  where  the 
court  was  not  prepared  to  say  that  it  would 
not  entitle  the  wife  to  a  divorce,  if  the  hus- 
band were  diseased,  without  proof  that  he 


had  communicated  it  to  her;  a  reasonable 
apprehension  of  injury  is  sufficient;  1  Hagg. 
Con.  35.  The  libellant  must  have  been  ig- 
norant as  to  the  existence  and  nature  of  the 
disease,  otherwise  there  may  be  waiver  and 
condonation;  Rehart  v.  Rehart  (Or.)  25  Pac. 
775 ;  but  if  she  was  ignorant,  the  divorce 
will  be  granted;  Wilson  v.  Wilson,  16  R.  I. 
122,  13  AtL  102. 

Charges  held  not  to  be  grounds  of  divorce 
are  that  the  wife  entered  into  love-making,  se- 
cret correspondence  and  meetings  with  young 
men  and  the  like,  which  the  court  character- 
ized as  "flirting" ;  Hancock  v.  Hancock,  55 
Fla.  680,  45  South.  1020,  15  L.  R.  A.  (N.  S.) 
670 ;  the  refusal  of  a  man  to  permit  his 
wife  actively  to  control  his  business,  though 
it  result  in  the  inability  to  live  harmoniously 
together;  Root  v.  Root,  164  Mich.  638,  130 
N.  W.  194,  32  L.  R.  A.  (N.  S.)  837,  Ann.  Cas. 
1912B,  740.  The  practice  of  Christian  Science 
as  a  doctor  by  a  wife  may  give  her  husband 
ground  for  divorce  under  a  statute  authoriz- 
ing divorce  for  treatment  seriously  injuring 
health  or  endangering  reason,  even  though 
such  alleged  injury  is  due  to  the  husband's 
abnormal  sensitiveness;  Robinson  v.  Robin- 
son, 66  N.  H.  600,  23  Atl.  362,  15  L.  R.  A. 
121,  49  Am.  St.  Rep.  632. 

In  the  Philippine  Islands  adultery  of  the 
husband  must  be  accompanied  by  public  scan- 
dal and  disgrace  to  entitle  the  wife  to  a  di- 
vorce; De  La  Rama  v.  De  La  Rama,  201  U. 
S.  303,  26  Sup.  Ct.  485,  50  L.  Ed.  765. 

The  Uniform  Divorce  Act  has  been  passed 
in  Delaware,  New  Jersey,  and  Wisconsin. 

See  Abandonment;  Adultery;  Legal 
Cruelty;  Habitual  Drunkard;  Insanity; 
Impotence.  As  to  divorce  laws  in  all  coun- 
tries, see  3  Burge,  Colonial  Law,  by  Renton 
&  Phillimore. 

Some  of  the  principal  defences  in  suits  for 
divorce  are:  Connivance,  or  the  corrupt  con- 
sent of  a  party  to  the  conduct  of  the  other 
party,  whereof  he  afterwards  complains. 
This  bars  the  right  of  divorce,  because  no  in- 
jury was  received ;  for  what  a  man  has  con- 
sented to  he  cannot  say  was  an  injury;  2 
Bish.  Mar.  &  D.  §  204.  See  Brown  v.  Grove, 
116  Ind.  84,  18  N.  E.  3S7,  9  Am.  St.  Rep.  S23 ; 
Pettee  v.  Pettee,  77  Hun  595,  28  N.  Y.  Supp. 
1067.  And  this  may  be  passive  as  well  as 
active;  3  Hagg.  Eccl.  87.  See  Morrison  v. 
Morrison,  136  Mass.  310.  See  Connivance. 
Collusion,  which  is  an  agreement  between 
husband  and  wife  for  one  of  them  to  com- 
mit, or  appear  to  commit,  a  breach  of  matri- 
monial duty,  for  the  purpose  of  enabling  the 
other  to  obtain  the  legal  remedy  of  divorce, 
as  for  a  real  injury.  Where  the  act  has  not 
been  done,  collusion  is  a  real  or  attempted 
fraud  upon  the  court ;  where  it  has,  it  is  al- 
so a  species  of  connivance ;  in  either  case  it 
is  a  bar  to  any  claim  for  divorce ;  2  Bish 
Mar.  &  D.  §  251.  See  Collusion.  Condone*- 
Hon,  or  the  conditional  forgiveness  or  reinis- 


DIVORCE 


909 


DIVORCE 


sion  by  the  husband  or  wife  of  a  matrimonial 
offence  which  the  other  has  committed. 
While  the  condition  remains  unbroken,  con- 
donation, on  whatever  motive  it  proceeded, 
is  an  absolute  bar  to  the  remedy  for  the  par- 
ticular injury  condoned ;  2  Bish.  Mar.  &  D.  S 
268 ;  Farmer  v.  Farmer,  86  Ala.  322,  5  South. 
434;  60  Law  J.  Prob.  73;  O'Connor  v.  O'Con- 
nor, 109  N.  C.  139,  13  S.  E.  887 ;  Nullmeyer  v. 
Nullmeyer,  49  111.  App.  573.  For  the  nature 
of  the  condition,  and  other  matters,  see  Con- 
donation. Recrimination,  which  is  a  de- 
fence arising  from  the  complainant's  being  in 
like  guilt  with  the  one  of  whom  he  com- 
plains. It  is  incompetent  for  one  of  the  par- 
ties to  a  marriage  to  come  into  court  and 
complain  of  the  other's  violation  of  matri- 
monial duties,  if  the  party  complaining  is 
guilty  likewise;  Redington  v.  Redington,  2 
Colo.  App.  8,  29  Pac.  811.  When  the  defend- 
ant sets  up  such  violation  in  answer  to  the 
plaintiff's  suit,  this  is  called,  in  the  matri- 
monial law,  recrimination;  _'  Bish.  Mar.  & 
D.  §  340.     See  Recrimination. 

The  foregoing  defences,  though  available  in 
all  divorce  causes,  are  more  frequently  ap- 
plicable where  a  divorce  is  sought  on  the 
ground  of  adultery. 

The  consequences  of  divorce  are  such  as 
flow  from  the  sentence  by  operation  of  law, 
or  flow  from  either  the  sentence  or  the  pro- 
ceeding by  reason  of  their  being  directly  or- 
dered by  the  court  and  set  down  of  record. 
In  regard  to  the  former,  they  are  chiefly  such 
as  result  immediately  and  necessarily  from 
the  definition  and  nature  of  a  divorce.  Being 
a  dissolution  of  the  marriage  relation,  the 
parties  have  no  longer  any  of  the  rights,  nor 
are  subject  to  any  of  the  duties,  pertaining 
to  that  relation.  They  are  henceforth  single 
persons  to  all  intents  and  purposes.  It  is 
true  that  the  statutes  of  some  of  the  states 
contain  provisions  disabling  the  guilty  party 
from  marrying  again ;  but  these  are  in  the 
nature  of  penal  regulations,  collateral  to  the 
divorce,  and  which  leave  the  latter  in  full 
force. 

In  regard  to  rights  of  property  as  between 
husband  and  wife,  a  sentence  of  divorce 
leaves  them  as  it  finds  them.  Consequently, 
all  transfers  of  property  which  were  actually 
executed,  either  in  law  or  fact,  continue  un- 
disturbed; for  example,  the  personal  estate 
of  the  wii'e.  reduced  to  possession  by  the 
husband,  remains  his  after  the  divorce  the 
same  as  before.  On  the  termination  of  a 
tenancy  by  the  entirety,  created  by  a  con- 
veyance to  husband  and  wife,  by  an  absolute 
divorce,  they  afterward  bold  the  laud  as  ten- 
ants in  common  without  survivorship;  Stelz 
v.  Shreck,  12S  N.  Y.  263,  28  N.  B.  510.  1.'.  L. 
R.  A.  325,  26  Am.  St.  Rep.  475.  See  Hopson 
v.  Fowlkes,  92  Tenn.  697,  23  S.  W.  55,  23 
L.  R.  A.  805.  36  Am.  St.  Rep.  120.  But  it 
puts  an  end  to  all  rights  depending  upon  the 
marriage  and  not  actually  vested;    as,  dow- 


er in  a  wife,  all  rights  of  the  husband  In  the 
real  estate  of  the  wife,  and  bis  right  to  re- 
duce to  |  D  her  choaes  in  action  ;   Law- 
son  v.  Shotwell,  27  M  I  krald  v.  < 
57   Mo.   200;    Whltsell  v.  Mills,  6  Ind. 
Clark  v.  Clark,  tj  w.  &  S.  (Pa.)  »  end 
v.  Grillin,  4  Barr.  fj  tel  i  440;    - 
8  Conn,  r.ii  :   Legg  v,  Ben- 
wick  v.  Benwicl 

Doe  v.  Brown,  ."»  Illackf.  (Ind.)  yM'j  ;    Oldham 
v.   l  tend*  rson,  6  i  >aj  a  I B  j     25 1 ;    Arrl 
v.  Arlington,  102  N.  C.  \'->\.  9  - 
can  Legion  ol  Honor  v.  smith,  45  N.  J.  Eq. 
166,    17  All.  770  ;    Maynaid  v.  Hill.  125  0.  S. 
216,  8  sup.  Ot  7i':;.  :;i  l.  Ed.  654;    Barrett 
v.  Failing,  ill   D.  S.  525,  4  Bu]  ,  I 
L.   Ed.  505;    Lamkin  v.  Enapp,  20  Ob 
154.    in  respect  to  dower,  how<  hould 

be  observed  that  a  contrary  doctrine  has 
been  settled  in  New  York,  it  being  there  held 
that  Immediately  upon  the  marri 
solemnized  the  wife's  right  to  dower  becomes 
perfect,  provided  only  she  survives  her  hus- 
band; Wait  v.  Wait,  4  X.  Y.  05;  Forrest  v. 
Forrest,  6  Duer  ■  N.  Y.i   102. 

Courts  will  annul  or  vacate  decrees  of  di- 
vorce on  sufficient  showing  aft  th  ot 
one  or  both  of  the  parties  i  ..here 
property  rights  are  Involved;  Johnson  v. 
Coleman,  23  Wis.  452,  99  Am.  Dec.  193;  Law- 
rence v.  Nelson,  113  la.  U77.  B5  X.  w.  84,  57 
L.  R.  A.  583;  Wood  v.  Wood,  136  la.  128, 
113  N.  W.  492,  12  L.  K.  A.  (N.  s.i  B91,  125 
Am.  St.  Bep.  223;  Shafer  v.  Shafer,  SO  Mich. 
163;  or  where  it  is  shown  that  the  dl 
was  fraudulently  obtained;  Appeal  of  Fi- 
delity Ins.  Co.,  93  Pa.  242  (where  the  rule  to 
vacate  it  was  not  filed  until  thlrb 
after  the  decree  was  obtained  and  after  the 
death*of  the  party  obtaining  Hi;  Brown  v 
Grove,  116  Ind.  84,  18  X.  B.  387,  'J  Am.  SI 
Rep.  823  (twenty  years  after  the  date  of  the 
decree  and  long  after  the  death  of  the  party 
Obtaining  it);  or  where  lack  of  jurisdiction 
to  grant  the  decree  is  Bhown;  Bine  >  Hodg 
son,  9  Ohio  Deo.  Reprint  L'75 ;  YVillman  v. 
Willman,  .".7  Ind.  500. 

One  against  whom  a  divorce  is  obtained 
who  accepts  the  benefit  of  the  decree,  and 
acts  in  a  way  which  would  be  illegal  but 
for  the  divorce  bo  granted,  cannot,  after  a 
long  lapse  of  time  and  after  the  death  of  the 
other  party,  deny  its  validity,  or  ■ 
it  was  obtained  without  due  notice;  In  re 
Bichardson's  Estate,  132  Pa.  292,  19  Li 
Mohler  v.  Shank's  Estate,  93  ta.  273,  61  N. 
W.  981,  34  I-  B.  A.  161,  57  Am.  Bt  Bep.  274  : 
nor  can  one  who  invokes  the  Jurisdiction  of 
B  state  and  submits  himself  t  heard 

to  question  such  jurisdiction  :  Matter  ol 
risson,  52  Hun  102,  5  X.  Y.  Supp.  90,  affirmed 
in  117  N.  V.  638,  22  X.  K.  1130;  and  his  rep- 
resentatives .an  occupy  no  better  position 
than  be  WOUld  have,  if  living;  i'l.  If  the 
defendant  in  a  divorce  decree  cannot  attack 

i         ause  it  was  obtained  by  his  own  fraud. 


DIVORCE 


910 


DIVORCE 


his  administrator  cannot  attack  it  because 
of  such  fraud ;  Dow  v.  Blake,  148  111.  76,  35 
N.  E.  761,  39  Am.  St.  Rep.  156.  In  Kirschner 
v.  Dietrich,  110  Cal.  502,  42  Pac.  1064,  where 
no  property  rights  were  involved,  it  was  held 
that,  by  the  death  of  a  party,  a  suit  for  a 
divorce  was  absolutely  abated,  and  that  the 
purpose  of  the  action  being  to  change  the 
personal  status  of  the  plaintiff  in  her  rela- 
tions to  her  husband  after  her  death,  there 
was  none  which  could  be  changed  by  judg- 
ment; and  in  Barney  v.  Barney,  14  la.  189, 
there  being  no  property  in  which  the  hus- 
band, except  for  the  divorce,  would  have  had 
an  interest  at  the  .death  of  the  wife,  and  no 
fraud  being  alleged,  it  was  held  that  the 
suit  abated.  Where  in  an  action  for  dower 
in  Ohio  the  defence  was  set  up  that  the  de- 
ceased had  previously  obtained  a  divorce  in 
an  Indiana  court,  of  which  it  was  proved 
that  the  wife  had  no  knowledge  until  after 
the  death  of  the  husband,  and  the  record  did 
not  show  the  ground  upon  which  the  decree 
was  based,  it  was  held  that  the  decree  acted 
only  on  the  marital  relations,  and  having 
been  rendered  without  jurisdiction  of  the 
person  of  the  wife,  her  property  rights  in 
Ohio  were  unaffected ;  Doerr  v.  Forsythe,  50 
Ohio  St.  726,  35  N.  E.  1055,  40  Am.  St.  Rep. 
703. 

The  death  of  the  complainant  in  a  divorce 
suit,  before  a  writ  of  error,  was  held  not  to 
destroy  the  subject-matter  of  the  suit,  as  re- 
spects the  jurisdiction  of  the  court  of  re- 
view ;  although  the  record  fails  to  show  that 
any  property  right  was  involved;  Chatter- 
ton  v.  Chatterton,  231  111.  449,  83  N.  E.  161, 
121  Am.  St.  Rep.  339,  where  the  court  ap- 
proved of  decisions  denying  that,  by  the 
death  ,of  a  party  in  such  suit,  the  marriage 
status'  was  forever  destroyed  and  that  there 
was  no  subject  matter  of  which  a  court  of 
review  could  assume  jurisdiction ;  Danforth 
v.  Danforth,  111  111.  236,  where  the  writ  of 
error  was  taken  before  the  death  of  the  par- 
ty and  a  motion  to  amend  the  record,  so  as 
to  give  effect  to  the  judgment  as  of  a  prior 
term,  was  allowed ;  Wren  v.  Moss,  2  Gilman 
(111.)  72,  where  it  was  held  that  a  writ  of 
error  might  be  prosecuted  after  the  death  of 
the  other  party,  to  reverse  the  decree ;  Wren 
v.  Moss,  1  Gilman  (111.)  560,  where  a  motion 
to  abate  the  suit  as  to  alimony  and  to  make 
the  executor  a  party  for  a  writ  of  error  was 
allowed. 

A  decree  of  divorce  may  be  reviewed  after 
the  death  of  a  party,  either  on  a  writ  of  er- 
ror ;  Israel  v.  Arthur,  6  Colo.  85 ;  or  appeal ; 
Shafer  v.  Shafer,  30  Mich.  163.  Such  a  de- 
cree was  properly  vacated  and  annulled  by 
the  court,  after  the  death  of  the  husband  who 
had  obtained  it,  there  being  evidence  of  fraud 
and  imposition  on  the  part  of  the  libellant ; 
Appeal  of  Boyd,  3S  Pa.  241.  A  case  con- 
stantly cited  to  the  effect  that  a  divorce  ob- 
tained by  fraud  may  be  set  aside  after  the 


death  of  a  party  has  been  properly  char- 
acterized as  merely  a  dictum,  since  the  deci- 
sion was  upon  other  grounds  and  that  ques- 
tion was  not  involved ;  57  L.  R.  A.  583,  5S9, 
note,  where  the  cases  to  that  date  upon  the 
right  to  contest  the  validity  of  a  divorce  de- 
cree, after  the  death  of  a  party,  are  collect- 
ed and  reviewed  with  discrimination.  But 
where  a  divorce  had  been  obtained  by  the 
plaintiff  who  subsequently  died,  a  motion  to 
set  aside  the  judgment  for  fraud  was  prop- 
erly denied  and  it  was  suggested  that  the 
proper  course  was  an  action  in  the  nature  of 
a  bill  of  revivor  bringing  before  the  court  all 
the  heirs  at  law  and  others  interested  in  the 
property  left  by  decedent;  Watson  v.  Wat- 
son, 1  Hun  (N.  Y.)  267 ;  and  to  the  same  ef- 
fect is  Groh  v.  Groh,  35  Misc.  354,  71  N.  Y. 
Supp.  9S5.  These  cases  having  been  in  New 
York,  where  the  writ  of  error  was  abolished, 
the  method  of  review  suggested  was  doubt- 
less the  only  one  available.  In  Michigan, 
where  the  practice,  it  is  believed,  is  very 
similar  to  that  of  New  York,  there  is  a  sim- 
ilar case ;  Zoellner  v.  Zoellner,  46  Mich.  511, 
9  N.  W.  831;  and  a  precisely  similar  case 
citing  and  relying  upon  the  Michigan  case  is 
Roberts  v.  Roberts,  19  R.  I.  349,  33  Atl.  872 ; 
and  in  a  later  Michigan  case  it  was  held 
that  in  simple  divorce  proceedings  aimed  at 
no  independent  relief  after  the  death  of  one 
party,  no  decree  could  be  made  relating  back 
to  his  lifetime;  Wilson  v.  Wilson,  73  Mich. 
620,  41  N.  W.  817.  Where  the  plaintiff  in  a 
suit  for  divorce  dies  pending  the  trial,  be- 
fore submission  to  the  jury,  if  the  issues  are 
found  in  his  favor,  judgment  of  divorce  will 
be  entered  as  of  the  first  day  of  the  term 
while  he  was  alive;  Webber  v.  Webber,  83 
N.  C.  2S0.  Cases  which  hold  that  the  action 
is  of  a  personal  nature  and  abates  with  the 
death  of  the  party  bringing  it  are  Hunt  v. 
Hunt,  75  Misc.  209,  135  N.  Y.  Supp.  39 ;  Dwy- 
er  v.  Nolan,  40  Wash.  459,  82  Pac.  746,  1  L. 
R.  A.  (N.  S.)  551,  111  Am.  St.  Rep.  919,  5 
Ann.  Cas.  S90  (where  it  was  held  that  the 
decree  could  not  be  set  aside  for  want  of 
jurisdiction) ;  Wood  v.  Wood,  1  Boyce  (Del.) 
134,  74  Atl.  560  (where  the  court  refused  to 
make  absolute  a  decree  nisi  and  set  it  aside 
on  the  petition  and  affidavit  of  the  defend- 
ant suggesting  the  death  of  the  plaintiff) ; 
In  re  Crandall,  196  N.  Y.  127,  89  N.  E.  578, 
134  Am.  St.  Rep.  S30,  17  Ann.  Cas.  874; 
Strickland  v.  Strickland,  80  Ark.  451,  97  S. 
W.  659 ;  Hite  v.  Trust  Co.,  156  Cal.  765,  106 
Pac.  102 ;  but  where  the  plaintiff  died,  after 
the  entry  of  a  interlocutory  judgment  by  de- 
fault, the  court  had  power  to  render  its  final 
decree  in  accordance  therewith  after  the 
death  of  the  party ;  John  v.  Superior  Court, 
5  Cal.  App.  262,  90  Pac.  53  (this  being  ex- 
actly the  reverse  of  the  Delaware  case  cited). 
Of  those  consequences  which  result  from 
the  direction  or  order  of  the  court,  the  most 
important   are:    Alimony,   or  the  allowance 


DIVORCE 


911 


which  a  husband,  by  order  of  court,  pays  to 
his  wife,  living  separate  from  him,  for  her 
maintenance.  The  allowance  may  be  for  her 
use  either  dining  the  pendency  of  a  suit, — 
In  which  case  it  is  called  alimony  pendente 
lite, — or  after  its  termination,  called  perma- 
nent alimony.  As  will  be  Been  from  the  fore- 
going detinition,  alimony,  especially  perma- 
nent alimony,  pertains  rather  to  a  separation 
from  bed  and  board  than  to  a  divorce  from 
the  bond  of  matrimony,  indeed,  it  is  gen- 
erally allowed  in  the  latl  only  in  pur- 
suance  of   statutory    provisions. 

A  court  has  no  authority  to  grant  a  de- 
cree of  divorce  in  favor  of  a  libellant  after 
he  has  moved  the  court  that  no  decree  be  en- 
tered; Milliman  v.  Milliman,  45  Colo.  291, 
101  Pac.  58,  22  L.  R.  A.  (N.  S.)  999,  132  Am. 
St.  Rep.  181;  see,  also,  Adams  v.  Adams,  57 
Misc.  150,  10G  N.  Y.  Supp.  1064,  where  it 
appeared  that  the  defendant  had  denied  the 
marriage  and  the  court  refused  to  dismiss 
the  suit  on  libelant's  motion;  W'iuans  v.  Wi- 
nans,  124  N.  Y.  110,  2d  N.  E.  293.  See  Milli- 
man v.  Milliman,  45  Colo.  291,  101  Pac.  58, 
22  L.  R.  A.  (N.  S.)  999,  132  Am.  St.  Rep.  181. 
As  a  general  rule  of  practice,  the  uncor- 
roborated evidence  of  a  co-respondent  is  held 
not  sufficient  to  grant  a  divorce;  Delaney  v. 
Delaney.  71  N.  J.  Eq.  246,  65  Atl.  217.  re- 
versing G9  N.  J.  Eq.  002.  (!1  Atl.  266;  Her- 
rick  v.  Herrick,  31  Mich.  298;  Evans  v.  Ev- 
ans, 93  Ky.  512,  20  S.  W.  G05 ;  but  the  court 
may  act  upon  it,  if  satisfied  that  the  story 
told  is  true  and  that  there  is  no  collusion; 
21  T.  L.  R.  67G ;  (1907)  P.  334.  The  denial 
of  the  adultery  by  defendant  and  the  co- 
respondent is  competent  and,  although  of  lit- 
tle weight  against  clear  proof,  in  the  absence 
of  it,  was  held  sufficient;  Mayer  v.  Mayer, 
21  N.  J.  Eq.  246. 

As  to  the  Effect  on  a  Will.  It  has  been 
held  that  a  divorce  alone  does  not  revoke  a 
previously  executed  will;  In  re  Brown's  Es- 
tate, 139  la.  219,  117  X.  NY.  260;  Baacke  v. 
Baacke,  50  Neb.  21,  G9  N.  W.  303;  Charlton 
v.  Miller.  27  Ohio  St.  298,  22  Am.  Rep.  :'>«>7; 
Card  v.  Alexander,  48  Conn.  192,  In  Am.  Rep. 
1S7;  L.  R.  22  Ch.  Div.  597;  L.  R.  25  Oh. 
Div.  6S5.  It  is  said  that  it  is  probable  thai; 
a  divorce  granted  at  the  suit  of  the  wile  with 
alimony  expressly  decreed  to  be  in  lieu  of 
all  her  rights  in  the  property  of  her  husband, 
testamentary  and  otherwise,  would  by  im- 
plication of  law  revoUe  the  will  of  her  hus- 
band in  so  far  as  it  made  provision  for  her; 
1  Underbill.  Wills  265.  In  a  Michigan  case 
it  is  held  that  when  at  the  time  a  decree  of 
divorce  is  granted,  the  parties  to  the  action 
settle  and  adjust  their  property  rights  by 
mutual  agreement,  without  mentioning  wills 
theretofore  made  by  them,  the  decree  of  di- 
vorce and  settlement  constituted  an  Implied 
revocation  of  the  will  so  theretofore  made. 
The  courl  said  that  by  the  decree  of  divorce 
and  the  property  settlement  the  parties  be- 


came strangers  to  each  other,  neither  there- 
after owing  to  the  other  either  legal  or  moral 
obligations    or    duties,    ami    that    there    was 

La    their    rela- 
tions,  within   the   rule  of  imp:  ation 
of  wills  ;    I.:                                    95  Mi'  h.   I 
X.   W.  699,  :;•")  Am.   St   R(  1   in 
Donaldson  v.  Hall,  106  ! ;..  d   502,  L19  N.  W. 
219,   20   L.   R.    A.   iN 
Rep.   621,    Id   Ann.    <'a^.    541.      In    I 
Baacke,  50  Neb.  in  ';:i  N.  W.                   er,  it 

was    held   that    the  dOCl  ri  !  >D    by 

implication    of    law    was    based    Q] 
sinned  m  <>f  Intention,  ari 

■  dition   and   drcums  bai 
the  testator,  or  ou  the  presumption  thi 
will   would   have  been   different   had   it 
executed    under   altered   circumstai 
that    a    settlement    "f   a    woman's   property 
rights    upon   obtaining   a   divorce   fro:: 
husband  does  not  work  a  revocation  of  a  will 
previously  executed  by  the  husband. 

As  to  questions  arising  from  divorce  re- 
lating to  the  custody  of  children,  see  Paki.vi 
and  Child. 

By  tii"  civil  law.  the  child  of  i 
vorced  is  to  be  brought  up  by  the  in: 
party   at   the  expen  guilt;    party. 

Ridley's  View,  pt  1,  c.  3,  §  9,  citii 
latiotf. 

DO  UT  DES.  I  give  that  you  may  give. 
See  Consi deration. 

DO  UT  FACIAS.  I  give  that  you  may  do. 
See  Consideration. 

DOCK.  The  enclosed  space  occupied  by 
prisoners  in  a  criminal  court 

The  space  between  two  wharves.     See  City 

ton  v.  Lecraw,  17  How.  (D    S.)   B4,  15 

L.    Ed.   118.     The  owner  of  a   dork   is  liable 

to  a  person  who,  by  Ins  invitation,  and  in  the 

exercise  of  due  '-are,  places  a  vessel  in  the 

dock,  for  injury  to  the  vessel  caused  by  a 
defect  thereon  which  the  owner  negligently 
allows  to  exist;  Nickerson  V.  Tirrell,  127 
Mass.    236. 

DOCK    WARRANT.     A  negotiable  Instru- 
ment, in  use  in  England,  given  by  the 
owners  to   the  owner  of  goods  Imported  and 
warehoused   in  the  docks,  as  a   recognition  of 

ids  title  to  the  goods,  upon  the  production  of 

a  of  lading,  etc.    Pulling  on  tic 
toms  of  London. 
dockage.    The  sum  charged  for  thi 

of  a  do.k.     In  tl  I  a  dry  dOCK,  it  has 

been  held  in  the  nature  of  rent     Ives  v.  The 

ye  siate,   i    Newb.  69,  Fed.  Caa   No. 
7i  17.    See  Wham  a 

DOCKET.     A    formal    record   of   Judicial 
proceedings;    a  brief  writing.     A  small  piece 
of   paper  or   parchment   having  the   ell 
a  larger.    Blount.    An  abstract    CowelL 

To  docket   La  Bald  to  bo  by  Blackstone  to  abstract 
and  enter  into  a  t  '■  397.     The  essen- 

tial Idea  of  a  modern  docket,  then,  is  an  entry  in 
briii"  in  a  proper  book  of  all  the  important  acts  done 


DOCKET 


912 


DOCUMENTS 


in  court  in  the  conduct  of  each  case  from  its  com- 
mencement  to   its    conclusion.      See   Colby,    Pr.   154. 

In  common  use,  it  is  the  name  given  to  the  book 
containing  these  abstracts.  The  name  of  trial-dock- 
et is  given  to  the  book  containing  the  cases  which 
are  liable  to  be  tried  at  a  specified  term  of  court, 
called    also    calendar,    or    list. 

The  docket  should  contain  the  names  of  the  par- 
ties and  a  minute  of  every  proceeding  in  the  case. 
It  is  kept  by  the  clerk  or  prothonotary  of  the  court. 
The  docket  entries  form  the  record  until  the  techni- 
cal record  is  made  up  in  proper  form  ;  State  v.  Car- 
roll, 38  Conn.  449,  9  Am.  Rep.  409  ;  McGrath  v.  Sea- 
grave,  2  Allen  (Mass.)  443,  79  Am.  Dec.  797  ;  Leath- 
ers v.  Cooley,  49  Me.  337;  Tracy  v.  Maloney,  105 
Mass.  90 ;  and  this  is  true  of  the  entries  in  the 
docket  of  a  justice  of  the  peace ;  Davidson  v.  Slo- 
comb,  18  Pick.  (Mass.)  464 ;  Ellsworth  v.  Learned, 
21  Vt.  535.  A  sheriff's  docket  is  not  a  record ; 
Thomas  v.  Wright,  9  S.  &  R.  (Pa.)  91;  Stevenson 
v.   Weisser,  1  Bradf.    (N.  Y.)  343. 

DOCK  MASTERS.  Officers  appointed  to 
direct  the  mooring  of  ships,  so  as  to  prevent 
the  obstruction  of  dock  entrances. 

DOCTOR.  Means  commonly  a  practitioner 
of  medicine,  of  whatever  system  or  school. 
Corsi  v.  Maretzek,  4  E.  D.  Smith  (N.  Y.)  1. 
See  Physicians. 

DOCTORS  COMMONS.  An  institution 
near  St.  Paul's  Cathedral  in  London,  where 
the  ecclesiastical  and  admiralty  courts  were 
held  until  the  year  1857.  3  Steph.  Com. 
306,  n. 

In  1768  a  royal  charter  was  obtained  by  virtue  of 
which  the  members  of  the  society  and  their  succes- 
sors were  incorporated  under  the  name  and  title  of 
"The  College  of  Doctors  of  Laws  exercent  in  the 
Ecclesiastical  and  Admiralty  Courts."  The  College 
consists  of  a  president  (the  dean  of  the  arches  for 
the  time-being)  and  of  those  doctors  of  laws  who, 
having  regularly  taken  that  degree  in  either  of  the 
universities  of  Oxford  and  Cambridge,  and  having 
been  admitted  advocates  in  pursuance  of  the  re- 
script of  the  archbishop  of  Canterbury,  shall  have 
been  elected  fellows  of  the  college  in  the  manner 
prescribed  by  the  charter. 

DOCUMENT  OF  TITLE.  By  the  Factors' 
Act  56,  Vict.  c.  39,  §  4,  it  is  stated  to  mean 
any  bill  of  lading,  India  warrant,  dock  war- 
rant, warehouse-keeper's  certificate  warrant, 
or  order  for  the  delivery  of  goods,  or  any  oth- 
er document  used  in  the  ordinary  course  of 
business,  as  proof  of  the  possession  or  con- 
trol of  goods,  or  authorizing,  or  purporting  to 
authorize,  either  by  endorsement  or  by  de- 
livery, the  possessor  of  such  document  to 
transfer  or  receive  goods  thereby  represent- 
ed.   Benj.  Sales  788. 

DOCUMENTS.  The  deeds,  agreements,  ti- 
tle-papers, letters,  receipts,  and  other  written 
instruments  used  to  prove  a  fact  See  Haz- 
ard v.  Durant,  12  R.  I.  99. 

If  a  document  is  lost,  secondary  evidence 
of  its  contents  may  be  given,  after  laying  a 
proper  foundation  therefor  by  proving  its  for- 
mer existence,  and  its  due  execution,  and  sat- 
isfactorily accounting  for  the  failure  to  pro- 
duce it.  The  burden  of  proving  all  these  facts 
rests  on  the  party  who  seeks  to  introduce 
secondary  evidence  of  the  document  claimed 
to  have  been  lost ;  Earley  v.  Euwer,  102  Pa. 
338 ;  Elwell  v.  Cunningham,  74  Me.  127.    See 


American  Life  Insurance  &  Trust  Co.  v.  Ros- 
enagle,  77  Pa.  507.     See  Lost  Instrument. 

In  Civil  Law.  Evidence  delivered  in  the 
forms  established  by  law,  of  whatever  nature 
such  evidence  may  be.  The  term  is,  however, 
applied  principally  to  the  testimony  of  wit- 
nesses. Savigny,  Dr.  Rom.  §  165.  See  Ev- 
idence. 

DOE,  JOHN.  The  name  of  the  fictitious 
plaintiff  in  the  action  of  ejectment.  3  Steph. 
Com.  618. 

DOG.     See  Animal;  Expeditation. 

In   almost  all   languages   this  word   is   used   as  a 

term    or    name    of   contumely    or    reproach.      See    3 

Bulstr.  226  ;    2  Mod.  260  ;    1  Leon.  148  ;    and  the  title 

Action  on  the  Case  for  Defamation  in  the  Digests. 

A  tax  on  dogs  is  constitutional,  and  so  is 
a  provision  that  in  case  of  refusal  to  pay  the 
tax,  the  dog  may  be  killed;  Blair  v.  Fore- 
hand, 100  Mass.  136,  97  Am.  Dec.  82,  1  Am. 
Rep.  94;  Mowery  v.  Town  of  Salisbury,  82 
N.  C.  175;  contra,  Archer  v.  Baertschi,  8 
Ohio  Cir.  Ct.  R.  12 ;  Jenkins  v.  Ballantyne,  8 
Utah  245,  30  Pac.  760,  16  L.  R.  A.  689.  A 
proceeding  of  the  most  stringent  character 
for  the  destruction  of  dogs  kept  contrary  to 
municipal  regulations  is  constitutional ;  Ju- 
lienne v.  City  of  Jackson,  69  Miss.  34,  10 
South.  43,  30  Am.  St.  Rep.  526. 

DOGMA.  In  Civil  Law.  The  word  is 
used  in  the  first  chapter,  first  section,  of  the 
second  Novel,  and  signifies  an  ordinance  of 
the  senate.    See,  also,  Dig.  27.  1.  6. 

DOING  BUSINESS.  See  Foreign  Corpo- 
ration. 

DOLE.  A  part  or  portion.  Dole-meadow, 
that  which  is  shared  by  several.  Spelman, 
Gloss.;  Cowell. 

DOLEANCE.  A  peculiar  appeal  in  the 
Channel  Islands.  It  is  a  personal  charge 
against  a  judicial  officer,  either  of  misconduct 
or  of  negligence.  L.  R.  6  P.  C.  155.  It  still 
exists  in  a  modified  form.  L.  R.  5  A.  C.  348. 
See  48  L.  Jour.  281. 

DO  LI  CAPAX.  Capable  of  mischief;  hav- 
ing knowledge  of  'right  and  wrong.  4  Bla. 
Com.  22,  23 ;    1  Hale,  PI.  Cr.  26,  27. 

D0LI  INCAPAX  (Lat).  Incapable  of  dis- 
tinguishing good  from  evil.  A  child  under 
seven  is  absolutely  presumed  to  be  doli  in- 
capax;  between  seven  and  fourteen  is,  prima 
facie,  incapax  doli,  but  may  be  shown  to  be 
capax  doli.  4  Bla.  Com.  23;  Broom,  Max. 
310 ;  Williams  v.  State,  14  Ohio  222,  45  Am. 
Dec.  536 ;  People  v.  Randolph,  2  Park.  Cr.  R. 
(N.  Y.)  174.     See  Discretion;  Age. 

DOLLAR  (Germ.  Thaler).  The  money  unit 
of  the  United  States. 

It  was  established  under  the  confederation  by  res- 
olution of  congress,  July  6,  1785.  This  was  originally 
represented  by  a  silver  piece  only  ;  the  coinage  of 
which  was  authorized  by  the  act  of  congress  of  Aug. 
8,  1786.  The  same  act  also  established  a  decimal 
system  of  coinage  and  accounts.  But  the  coinage 
was  not  effected  until  after  the  passage  of  the  act 


DOLLAR 


913 


LAB 


of  April  2,  1792,  establishing  a  mint,  1  U.  S.  Stat  L. 
246:  and  the  first  coinage  of  dollars  commenced  in 
1794.  The  law  last  cited  provided  for  the  coinage  of 
"dollars  or  units,  each  to  be  of  the  value  of  a  Span- 
ish milled  dollar,  as  the  same  was  then  current,  and 
to  contain  three  hundred  and  seventy-one  grains 
and  four-sixteenth  parts  of  a  grain  of  pure  silver, 
or  four  hundred  and  sixteen  grains  of  standard  sil- 
ver." 

The  Spanish  dollar  known  to  our  legislation  was 
the  dollar  coined  in  Spanish  America,  North  and 
South,  which  was  abundant  in  our  currency,  in  con- 
tradistinction to  the  dollar  coined  in  Spain,  which 
was  rarely  seen  in  the  United  States.  The  intrinsic 
value  of  the  two  coins  was  the  same  ;  but,  as  a  gen- 
eral (not  invariable)  distinction,  the  American  coin- 
age bore  pillars,  and  the  Spanish  an  escutcheon  or 
shield;    all  kinds  bore  the  royal  efflgy. 

The  milled  dollar,  so  called,  is  in  contradistinction 
to  the  irregular,  misshapen  coinage  nicknamed  cob, 
which  a  century  ago  was  executed  in  the  Spanish- 
American  provinces, — chiefly  Mexican.  By  the  use 
of  a  milling  machine  the  pieces  were  figured  on  the 
edge,  and  assumed  a  true  circular  form.  The  pillar 
dollar  and  the  milled  dollar  were  in  effect  the  same 
In  value,  and,  in  general  terms,  the  same  coin ; 
though  there  are  pillar  dollars  ("cobs")  which  are 
not  milled,  and  there  are  milled  dollars  (of  Spain 
proper)    which    have    no    pillars. 

The  weight  and  fineness  of  the  Spanish  milled  and 
pillar  dollars  is  eight  and  one-half  pieces  to  a  Cas- 
tilian  mark,  or  four  hundred  and  seventeen  and 
fifteen-seventeenths  grains  Troy.  The  limitation  of 
four  hundred  and  fifteen  grains  in  our  law  of  1806, 
April  10,  2  U.  S.  Stat.  L.  374,  was  to  meet  the  loss 
by  wear.  The  legal  fineness  of  these  dollars  was  ten 
dineros,  twenty  granos,  equal  to  nine  hundred  and 
two  and  seven-ninths  thousandths:  the  actual  fine- 
ness was  somewhat  variable,  and  always  below. 
The  Spanish  dollar  and  all  other  foreign  coins  are 
ruled  out  by  the  act  of  congress  of  Feb.  21,  1S">7,  13 
U.  S.  Stat.  1856-57,  163,  they  Deing  no  longer  a  legal 
tender.  But  the  statements  herein  given  are  useful 
for  the  sake  of  comparison:  moreover,  many  con- 
tracts still  in  existence  provide  for  payment  (of 
ground-rents,  for  example)  in  Spanish  milled  or  pil- 
lar dollars.  The  following  terms,  or  their  equiva- 
lent, are  frequently  used  in  agreements  made  about 
the  close  of  the  last  and  the  beginning  of  the  present 
century:  "silver  milled  dollars,  each  dollar  weigh- 
ing seventeen  pennyweights  and  six  grains  at  least." 
This  was  equal  to  four  hundred  and  fourteen  grains. 
The  standard  fineness  of  United  States  silver  coin 
from  1792  to  1836  was  fourteen  hundred  and  eighty- 
five  parts  fine  silver  in  sixteen  hundred  and  sixty- 
four.  Consequently,  a  piece  of  coin  of  four  hun- 
dred and  fourteen  grains  should  contain  three  hun- 
dred and  sixty-nine  and  forty-six  hundredths  grains 
pure    silver. 

By  the  act  of  Jan.  18,  1837,  §  8,  6  U.  S.  Stat.  137, 
the  standard  weight  and  fineness  of  the  dollar  of 
the  United  States  was  fixed  as  follows:  "of  one 
thousand  parts  by  weight,  nine  hundred  shall  be  of 
pure  metal  and  one  hundred  of  alloy,"  the  alloy  to 
consist  of  copper  ;  and  it  was  further  provided  that 
the  weight  of  the  silver  dollar  should  be  four  hun- 
dred and  twelve  and  one-half  grains  (412  1-2). 

The  weight  of  the  silver  dollar  has  not  been 
changed  by  subsequent  legislation  ;  but  the  propor- 
tionate weight  of  the  lower  denomination  of  silver 
coins  has  been  diminished  by  the  act  of  Feb. 
11  U.  S.  Stat.  L.  160.  By  this  act  the  half-dollar 
(and  the  lower  coins  in  proportion)  is  reduced  in 
weight  fourteen  and  one-quarter  grains  below  the 
previous  coinage:  so  that  the  silver  dollar  which 
was  embraced  in  this  act  weighs  twenty-eight  and 
one-half  grains  more  than  two  half-dollar-.  The 
silver  dollar  then,  consequently,  ceased  to  be  cur- 
rent in  the  United  States;  but  it  continued  to  be 
coined  to  supply  the  demands  of  the  West  India 
trade   and  a   local   demand   for  cabinets,   etc. 

But  the  act  of  Feb.  28,  1S78,  20  U.  S.  Stat.  L.  c.  20, 
restored  the  standard  silver  dollar  of  the  act  of  Jan. 
18.  1837,  as  a  legal  tender  for  all  debts  except  where 
otherwise  stipulated  in  the  contract,  and  required 
the  monthly  purchase  of  not  less  than  two  million 

Bouv.— 58 


and  not  more  than  four  million  dollars  worth  of 
silver  bullion  and  the  coinage  of  the  same  Into 
standar  ilars,    but   this   lattti 

1  by  act  of  July  I  of  Feb.  12. 

1S73,    introduced    i:.  lar,   of    t:. 

four    bundled    and    twenty    grains    Tr 
chiefly,  if  not  wholly,  b  n  dol- 

lar In  trade  with  China  and  the  East.  It  baa  found 
Its  way,  however,  all  ov< 

■  ed   by   a   j 
gross  of  July  IS  Stat.   L.  ;  to  be  a 

legal  tender,   has   led  t*>   great    li  The 

coinage  of  the  trade-dollar   was  ud   its 

'ion    and   recoinage    iii 
1  by  the  act  of  M 
See  also  U.   S.   R.   S.   1  Bupp 

liy  the  act  of  Novemb  t  is  declared  to  be 

the  policy  of  the  United  States  to  continue  the  use 
of  both  gold  and  silver  as  standard  money,  and  to 
coin  both  gold  and  silver  Into  money  of  equal  in- 
trinsic and  exchangeable  value,  such  equality  to  be 
secured    through    international    a  or    by 

such  safeguards  of  legislation  as  will  Insure  the 
maintenance  of  the  parity  in  value  of  the  coins  of 
the  two  metals,  and  the  equal  power  of  every  dollar 
at  all  times  in  the  markets  and  in  the  payment  of 
debts.  It  is  further  declared  that  the  efforts  of  the 
Government  should  be  steadily  directed  to  the  es- 
tablishment of  such  a  safe  system  of  bimetallism  as 
will  maintain  at  all  times  the  equal  power  of  every 
dollar  coined  or  issued  by  the  United  States,  in  the 
markets  and  in  the  payment  of  debts. 

By  the  act  of  March  3,  1S19,  a  gold  dollar  was 
authorized  to  be  coined  at  the  mint  of  the  United 
States  and  the  several  branches  thereof,  conform- 
ably in  all  respects  to  the  standard  of  gold  coins 
now  established  by  law,  except  that  on  the  reverse 
of  the  piece  the  figure  of  the  eagle  shall  be  omitted. 
It  Is  of  the  weight  of  25.8  grains,  and  of  the  fineness 
of  nine  hundred  thousandths.  This  dollar  was  made 
the  unit  of  value  by  act  of  congress  Feb.  12,  1873, 
and  it  was  further  provided  that  such  dollar,  when 
worn  by  natural  abrasion,  and  so  reduced  In  weight 
after  twenty  years  of  circulation  (as  evidenced  by 
date  on  the  face  of  such  coin),  will  be  redeemed  by 
the  United  States  Treasury  or  its  offices,  subject 
to  such  regulations  as  the  Secretary  of  the  Treasury 
may  prescribe  for  the  protection  of  the  Government 
against  fraudulent  abrasions  and  other  practices; 
U.  S.  Rev.  Stat.  5§  3605,  "."11.  Its  coinage  was  dis- 
continued by  act  of  September  26,  1890. 

A  charge  of  one-fifth  per  centum  was  formerly 
made  for  converting  gold  bullion  into  coin,  but  by 
act  of  Jan.  14,   1875,   this  law   was   repealed. 

The  one  dollar  and  the  three  dollar  gold  pieces  are 
no   longer   coined.     See  £6   Stat.    L.    485. 

When  the  word  dollars  is  used  In  a  bequest  or  In 
any  Instrument  for  the  payment  of  money,  the 
amount  is  payable  In  whatever  the  United  Stat<  s 
declares  to  be  legal  tender,  whether  coin  or  paper 
money,  but  not  In  real  or  personal  property  In  which 
money  has  been  invested  ;  Halsted  v.  Meeker's  Ex'rs, 
18  N.  J.  E  |.  136;  Lanning  r.  Sisters  of  St.  Francis. 
8S  N.  3.  Eq.  896  :  Rank  of  State  v.  Burton.  27  Ind. 
42C  ;  Miller  v.  Lacy,  33  Tex.  351;  Hart  v.  Flyn's 
Ex'rs.  S  Dana  (Ky.)  13° ;  Morris  v.  Bancroft,  1  U. 
N.   C.    (Pa.)   223. 

D0L0.     The  Spanish   form   of  dolus. 

DOLUS    (Let).      In   Civil    Law.     A   fraudu- 
lent address  or  trick   used  to  decelre  some 
one;  a   fraud.     Dig,    I.  ■".  1.     Any  BUbtJ 
trivance  by  words  or  acts  with  a  design  to 
circumvent    2  Kent  560;  Oode  '-'.  21. 

Dolus   differs   from   culpa   In   this,    that   the   latter 
da  from  an  error  of  thi  -ding,  while 

to  constitute  the  former  :  be  a  will  or  in- 

tention to  do  wrong.     Wolfflus,  Inst   S    17. 

posed    to  ;'orts    negligence, 

heedlessness,  or  temerity,  as  well  as  indirect  inten- 
tion (i.  e.  of  consequence  intended  but  not  desired). 
lysis    of    Anson   78.      See    Culpa. 
is    doubtful,    however,    whether    the    general 
use  of  the  word  dolus  in  the  civil  law  is  not  rather 


DOLUS 


914 


DOMESDAY-BOOK 


that  of  very  great  negligence,  than  of  fraud,  as  used 
in  the  common  law.  A  distinction  was  also  made 
between  dolus  and  fraus,  the  essence  of  the  former 
being  the  intention  to  deceive,  while  that  of  the 
latter  was  actual  damage  resulting  from  the  deceit. 

Such  acts  or  omissions  as  operate  as  a 
deception  upon  the  other  party,  or  violate 
the  just  confidence  reposed  by  him,  whether 
there  be  a  deceitful  intent  {mains  animus)  or 
not.  Pothier,  TraiU  de  D6p0t,  nn.  23,  27; 
Story,  Bailm.  §  20  a;  Webb's  Poll.  Torts  18; 
2  Kent  506,  n. 

DOLUS  MALUS  (Lat).  Fraud.  Deceit 
with  an  evil  intention.  Distinguished  from 
dolus  bonus,  justifiable  or  allowable  deceit. 
Calvinus,  Lex.;  Broom,  Mas.  349;  1  Kauf- 
mann,  Mackeld.  Civ.  Law  165.  Misconduct. 
Magna  negligentia  culpa  est,  magna  culpa 
dolus  est  (great  negligence  is  a  fault,  a 
great  fault  is  fraud).     2  Kent  560,  n. 

DOM.  PROC.  An  abbreviation  of  Domus 
Procerum,  the  House  of  Lords. 

DOMAIN.  Dominion;  territory  governed. 
Possession;  estate.  Land  about  the  man- 
sion-house of  a  lord.  The  right  to  dispose 
at  our  pleasure  of  what  belongs  to  us. 

A  distinction  has  been  made  between  property 
and  domain.  The  former  is  said  to  be  that  quality 
which  is  conceived  to  be  in  the  thing  itself,  consid- 
ered as  belonging  to  such  or  such  person,  exclu- 
sively of  all  others.  By  the  latter  is  understood  that 
right  which  the  owner  has  of  disposing  of  the  thing. 
Hence  domain  and  property  are  said  to  be  correla- 
tive terms ;  the  one  is  the  active  right  to  dispose  of, 
the  other  a  passive  quality  which  follows  the  thing 
and  places  it  at  the  disposition  of  the  owner.  3 
Toullier,  n.  83.  But  this  distinction  is  too  subtle  for 
practical  use.  Puffendorff,  Droit  de  la  Nat.  1.  4.  c.  4, 
106  §  2.  See  1  Bla.  Com.  105  ;  Clef  des  Lois  Rom.  ; 
Domat ;  1  Hill,  Abr.  24 ;  2  id.  237 ;  Eminent  Do- 
main. 

DOMBOC  (spelled,  also,  often  dombec. 
Sax.).  The  name  of  codes  of  laws  among  the 
Saxons.  Of  these  King  Alfred's  was  the 
most  famous.    1  Bla.  Com.  46 ;  4  id.  411. 

The  domboc  of  king  Alfred  is  not  to  be 
confounded  with  the  domesday-book  of  Wil- 
liam the  Conqueror. 

DOME  (Sax.).  Doom;  sentence;  judg- 
ment. An  oath.  The  homager's  oath  in  the 
black  book  of  Hereford.     See  Doom. 

DOMESDAY-BOOK.  The  record  of  the 
survey  of  England  instituted  by  William  the 
Conquerer  and  effected  by  inquests  of  local 
jurors.  It  was  begun  in  1085  and  completed 
in  1086. 

It  was  primarily  a  fiscal  survey — the  lia- 
bility for  paying  "gild"  in  the  past  and  the 
liability  for  paying  "geld"  in  the  future  were 
the  chief  points  to  be  ascertained.  It  has 
been  called  "a  great  rate  book."  Incidental- 
ly it  gives  a  marvelously  detailed  picture  of 
the  legal,  social,  and  economic  state  of  Eng- 
land, but  a  picture  which,  in  ■  some  respects, 
is  not  easily  interpreted ;  Maitl.  2  Sel.  Es- 
says, Anglo-Amer.  L.  H.  76.  It  is  preserved 
in  two  manuscript  volumes ;  the  second  deals 
with  the  counties  of  Essex,  Norfolk,  and 
Suffolk;  the  first  with  the  rest  of  England. 


The  first  is  a  folio  of  382  leaves ;  the  second 
is  a  quarto  volume  of  450  leaves.  It  is  prob- 
able that  the  second  was  compiled  first; 
Round,  Feud.  Engl.  140.  It  was  printed 
by  royal  command  in  1783.  A  third  volume, 
containing  a  general  introduction  and  in- 
dexes, and  a  fourth,  containing  various  doc- 
uments supposed  to  be  connected  with  the 
survey,  were  published  in  1816. 

It  early  acquired  the  name  of  "Domesday." 
The  Dialogus  de  Scaccario  ascribes  the  name 
to  the  fact  that  the  people  were  reminded  by 
it  of  the  Day  of  Judgment.  Hales'  theory 
(Domesday  of  St.  Paul's  XI)  is  that  the  name 
was  derived  from  the  fact  that  the  inquisi- 
tions on  which  it  was  based  were  held  on 
the  "Domes-days,"  or  law-days,  of  the  va- 
rious hundreds. 

"If  English  history  is  to  be  understood,  the  law 
of  Domesday  Book  must  be  mastered.  We  have 
here  an  absolutely  unique  account  of  feudalism  In 
two  different  stages  of  its  growth,  the  more  trust- 
worthy, though  the  more  puzzling,  because  it  gives 
us  particulars  and  not  generalities."  Maitland, 
Domesday  and  Beyond  3.  It  is  not  a  collection  of 
laws;  nor  a  register  of  title;  it  is  a  "geld"  book; 
id.  For  a  partial  bibliography,  see  2  Sel.  Essays, 
Anglo-Amer.  L.  H.  77.  See  Round,  Feudal  England  ; 
11  Engl.  Hist.  Rev.  209  (Pollock);  Ellis,  General 
Introd.  to  Domesday;  Ballard,  Domesday  .Bor- 
oughs; Ballard,  Domesday  Inquest;  2  Holdsworth, 
Hist.  E.  L.  118;  1  Soc.  Engl.  236;  Domesday  Studies 
(papers  read  at  the  Domesday  Commemoration, 
1SS6);    Maitland,   Domesday  Book  and  Beyond. 

D0MESMEN  (Sax.).  An  inferior  kind  of 
judges.  Men  appointed  to  doom  (judge)  in 
matters  in  controversy.  Cowell.  Suitors  in 
a  court  of  a  manor  in  ancient  demesne,  who 
are  judges  there.  Blount ;  Whishaw ;  Termes 
de  la  Ley.     See  Jury. 

DOMESTIC  ATTACHMENT.  See  Attach- 
ment. 

DOMESTIC       MANUFACTURES.  This 

term  in  a  state  statute  is  used,  generally,  of 
manufactures  within  its  jurisdiction.  Com. 
v.   Giltinan,  64  Pa.  100. 

DOMESTIC    PORT.     See  Home  Port. 

DOMESTICS.  Those  who  reside  in  the 
same  house  with  the  master  they  serve.  The 
term  does  not  extend  to  workmen  or  laborers 
employed  out-of-doors.  Ex  parte  Meason,  5 
Binn.  (Pa.)  167;  Cook  v.  Dodge,  6  La.  Ann. 
276 ;  Richardson  v.  State,  43  Tex.  456 ;  Mer- 
lin, RCpert.  The  act  of  congress  of  April  30, 
1790,  s.  25,  used  the  word  domestic  in  this 
sense.  This  term  does  not  extend  to  a  serv- 
ant whose  employment  is  out  of  doors  and 
not  in  the  house ;  Wakefield  v.  State,  41  Tex. 

556. 

Formerly  this  word  was  used  to  designate  those 
who  resided  in  the  house  of  another,  however  ex- 
alted their  station,  who  performed  services  for  him. 
Voltaire,  in  writing  to  the  French  queen,  in  1748, 
says,  "Deign  to  consider,  madam,  that  I  am  one  of 
the  domestics  of  the  king,  and  consequently  yours, 
my  companions,  the  gentlemen  of  the  king,"  etc.  ; 
but  librarians,  secretaries,  and  persons  in  such 
honorable  employments  would  not  probably  be  con- 
sidered domestics,  although  they  might  reside  in 
the   houses   of  their   respective   employers. 

Pothier,   to    point    out   the   distinction   between    a 


DOMESTICS 


915 


DOM 


domestic  and  a  Bervant,  gives  the  following  exam- 
ple:—A    literary    man    who    lives    and    lod:.' 
you,    solely   to    be   your  companion,    that    you   may 
profit  by  his  conversation  and  learning,  is  your  do- 
mestic ;     for   all   who    live   in    the   same   house    and 
eat  at  the  same  table  with  the  owner  of  tbe  house 
are  his  domestics;    but  tbey  are  not  servants.     On 
the  contrary,  your   valet-de-cbambre,  to  whom  you 
pay  wages,  and  wbo  sleeps  out  of  your  hou.s>  , 
properly  speaking,  your  domestic,  but  your  servant. 
Pothier,  Proc.  Cr.  sect.  2,  art.  5,  5  5  ;    Potli. 
710,  81*8  ;    9  Toullier,  n.  3H  ;    H.  de  Pansey,  L> 
tices  de  Paix,  c.  30,  n.  1. 

DOMICIL.  Tliiil  place  where  a  man  has 
his  true,  fixed,  and  permanent  home  and 
principal  establishment,  and  to  which  when- 
ever he  is  absent  he  has  the  Intention  of  re- 
turning. White  v.  Crawford,  10  Mass.  L88; 
Tanner  v.  King,  11  La.  17.".;  Crawford  v. 
Wilson,  4  Barb.  (N.  Y.)  505;  White  v.  Brown, 
Wall.  Jr.  217,  Fed.  ('as.  No.  17,538;  llurne 
v.  Home,  31  N.  C.  99;  Holliman's  Heirs  v. 
Peebles,  1  Tex.  G73 ;  Hairston  v.  Hairston, 
1*7  Miss.  704,  61  Am.  Dec.  530;  Chaine  v. 
Wilson,  1  Bosw.  (N.  Y.)  G73 ;  Hayes  v.  Hayes, 
74  111.  312. 

The  domicil  of  a  person  is  that  place  or 
country  in  which  his  habitation  is  fixed, 
without  any  present  intention  of  removing 
therefrom.  [1892]  3  Ch.  180 ;  Story,  Conn.  L. 
§  43. 

Dicey  defines  domicil  as,  in  general,  the 
place  or  country  which  is  in  fact  his  perma- 
nent home,  but  is  in  some  cases  the  place  or 
country  which,  whether  it  be  in  fact  his  home 
or  not,  is  determined  to  be  his  home  by  a 
rule  of  law;  Dicey,  Dom.  42;  and  again  as 
"that  place  or  country  either  (1)  in  which 
he  in  fact  resides  with  the  intention  of  resi- 
dence (animus  manendi) ;  or  (2)  in  which, 
having  so  resided,  he  continues  actually  to 
reside,  though  no  longer  retaining  the  in- 
tention of  residence;  or  (3)  with  regard  to 
which,  having  so  resided  there,  he  retains 
the  intention  of  residence,  though  he,  in 
fact,  no  longer  resides  there;"  id.  44.  The 
same  definition  substantially  is  given  in  Di- 
cey, Confi.  Laws  (Moore's  ed.)  727.  It  is 
there  said  not  to  include  cases  of  domicil 
created  by  operation  of  law. 

Domicil  is  "a  habitation  fixed  in  some 
place  with  the  intention  of  remaining  there 
alway."  Yattel.  Droit  des  Gens,  liv.  i,  c.  xix, 
s.  218,  Dit  Domicile. 

"The  place  where  a  person  has  established 
the  principal  seat  of  his  residence  and  of 
his  business."  Pothier,  Introd.  Qen.  Cout. 
d' Orleans,  ch.  1,  s.  1,  art.  8. 

"That  place  is  to  be  regarded  as  a  man's 
•domicil  which  he  has  freely  chosen  for  his 
permanent  abode  [and  thus  for  the  centre 
at  once  of  his  legal  relations  and  his  busi- 
ness]."    Savigny,    S.   353. 

"A  residence  at  a  particular  place,  accom- 
panied with  [positive  or  presumptive  proof 
of]  an  intention  to  remain  there  for  an  un- 
limited time."     Phillimore,   Int.  Law  49. 

"TUiC  place  is  properly  the  domicil  of  a 
person    in    which    he    has    voluntarily    fixed 


the  habitation  of  hi:  family,  not 

Cor  a 

but  with  a  u  his 

permanent 

(which   is   unex.  :iu  oc_ 

cur  to  induce   him   ; 

(   home."     28   J..  , 
Kindersley,   V.  O.     ] 
HOD   between   an   individual  and  a 
locality   or  country.      _ 
in  re  Leeds   Will.    I  -   I 

It    has    bl  '  hat   tli.-)  ■ 

definition   of  the   word  ;   25   L.  J.   Ch, 
but   Dice;   (Domicil,   App.  and    in 
Laws  7.;ii  dissents  from  ttii  •.     in 

the  latter  w.uk  the  learned  write] 
"the  attempts  which   have  been    made  to  de- 
fine domicil,  ami  of  the  erith  I 
attempts,  lead  to  results  which  may  be  sum- 
med   uii   as    follows: 

"First.  Domicil,     being    a     complex 
must,   from  the  nature  of  things,   be  capable 
of  definition.     In  other  words,  it  is  a 
which  has  a  meaning,  and  that  meaning  can 
be    explained    by    analyzing    it    into   its   ele- 
ments. 

"Secondly.  All   the 
in  making  the  elements  of  domicil  'residence' 
and  'animus  manendi.' 

"Thirdly.  Several     of    these    definitions — 
such,    for    example,    as    Story's    I'hillimore's, 
or    Vice-Chancellor   Kindersley'B — have   suc- 
ceeded in  giving  an  explanation  of 
Log  of  domicil,  which,  even  if  doI 
in  the  most  precise  langu  substantial- 

ly accurate. 

"Fourthly.  The  reason  why  English  courts 
have  been  inclined  to  hold  that  no  definition 
Of  domicil   is   satisfactory  is.  that   they  have 
found  it  impossible  to  reconcile  any  defini- 
tion  with  three  sets  of  judicial   decisions  or 
dicta    (an    officer   in   the   s.  r\  i 
India    Company;    an    Englishman    acquiring 
a    domicil    in    another   country:    and    a    per- 
son   residing    in    another    country    for    his 
health).     When,  however,  these  sets  ••■: 
amined,  it   is   found    thai    two   of   them   con- 
sist  of   cases   embodying    views   of   domicil 
new   admitted    t<>    be   erroneous,   whilst    the 
third  sot   can   be  reconciled   with  all  tbe 
definitions  of  domiciL"     Dicey,  Confi.   I 
735. 

A  person  must  have  a  domicil  for  pur- 
poses of  taxation;  Thorndike  v.  City  of  Bos- 
ton, 1  Mete.  (Mass.)  242;  Borland  v.  city  of 
Boston,  132  Mass  89,  42  Am.  Rep.  424  : 
Church  v.  Rowell,  4i»  Me.  .".''.7:  for  Jurisdic- 
tion; Andrews  v.  Andrews,  188  r.  S.  14,  2:: 
Sup.  Ct  237,  17  I..  Ed  366;  Bell  v.  Bell,  1M 
U.  S.  17o.  L'l  Sup.  <'t.  r,M.  45  L.  Ed.  - 
Streitwolf  v.  Streitwolf,  181  r.  s.  i7M.  21 
•.  553,  46  p.  Ed.  B67;  Ayer  v.  Weeks, 
<;.-.  X.  II.  248  1^  At!.  1108,  6  L  R  A.  716, 
23  Am.  si.  Rep.  37;  for  succession;  Oilman 
v.  Gllman,  52  Me.  165,  83  Am.  Dec.  502; 
Merrill's  Heirs  v.  Morrissett,  76  ala.  433; 
Dupuy  v.  Wurtz,  53  N.  Y.  5o6;  for  adminis- 


DOMICIL 


916 


DOMICIL 


tration ;  Hindman's  Appeal,  85  Pa.  466 ;  for 
pauper  settlement ;  Abington  v.  North  Bridge- 
water,  23  Pick.  (Mass.)  177;  for  loyal  char- 
acter ;  Desmare  v.  U.  S.,  93  U.  S.  605,  23  L. 
Ed.  959 ;  for  homestead  exemption ;  Shep- 
herd v.  Cassiday,  20  Tex.  24,  70  Am.  Dec. 
372;  for  attachment;  Morgan  v.  Nunes,  54 
Miss.  308;  Hicks  v.  Skinner,  72  N.  G.  1.  A 
person  can,  however,  have  but  one  domicil 
at  a  time;  Desmare  v.  U.  S.,  93  U.  S.  605, 
23  L.  Ed.  959 ;  Shaw  v.  Shaw,  98  Mass.  158 ; 
Evans  v.  Payne,  30  La.  Ann.  502;  Dupuy  v. 
Wurtz,  53  N.  Y.  556;  Abington  v.  North 
Bridgewater,  23  Pick.  (Mass.)  170 ;  but  Cock- 
burn  (Nationality)  says  that  it  is  quite  pos- 
sible for  a  person  to  have  two  domicils.  See 
Morse,  Citizenship  100.  And  it  is  said  that 
a  person  may  have  both  a  civil  and  a  com- 
mercial domicil ;  Dicey,  Confl.  Laws  740. 

A  bachelor  cannot  claim  the  place  where 
he  takes  his  meals  as  his  residence  for  vot- 
ing purposes,  when  he  keeps  a  business  of- 
fice and  sleeping  apartments  in  connection 
^therewith  in  another  place,  where  he  spends 
most  of  his  time;  State  v.  Savre,  129  la. 
122,  105  N.  W.  3S7,  3  L.  R.  A.  (N.  S.)  455, 
113  Am.  St.  Rep.  452;  Behrensmeyer  v. 
Kreitz,  135  111.  591,  26  N.  E.  704  (where  an 
engineer  had  a  room  in  one  state  and  took 
his  meals  in  another);  Carter  v.  Putnam, 
141  111.  138,  30  N.  E.  681  (where  an  unmar- 
ried man  was  in  business  in  one  town  and 
took  the  greater  number  of  his  meals  with 
his  father,  who  lived  in  another,  keeping 
part  of  his  clothing  in  each  place) ;  Long- 
hammer  v.  Munter,  80  Md.  518,  31  Atl.  300, 
27  L.  R.  A.  330. 

Where  a  house  was  located  on  the  line 
between  two  towns,  it  was  said  by  Shaw,  C. 
J.,  that  if  it  could  be  ascertained  where 
the  occupant  usually  slept,  this  would  be  a 
preponderating  circumstance,  and,  in  the  ab- 
sence of  other  proof,  decisive ;  Inhabitants 
of  Abington  v.  Inhabitants  of  North  Bridge- 
water,  23  Pick.   (Mass.)  170. 

Domicil  may  be  either  national  or  domes- 
tic. In  deciding  the  question  of  national 
domicil,  the  point  to  be  determined  will  be 
in  which  of  two  or  more  distinct  nationali- 
ties a  man  has  his  domicil.  In  deciding  the 
matter  of  domestic  domicil,  the  question  is 
in  which  subdivision  of  the  nation  does  the 
person  have  his  domicil.  Thus,  whether  a 
person  is  domiciled  in  England  or  France 
would  be  a  question  of  national  domicil, 
whether  in  Norfolk  or  Suffolk  county,  a 
question  of  domestic  domicil.  The  distinc- 
tion is  to  be  kept  in  mind,  since  the  rules 
for  determining  the  two  domicils,  though  fre- 
quently, are  not  necessarily,  the  same;  see 
2  Kent  449;  Story,  Confl.  Laws  §  39;  Westl. 
Priv.  Int.  Law  15 ;  Wheat.  Int.  Law  123. 

The  Romanists  and  civilians  seem  to  at- 
tach about  equal  importance  to  the  place 
of  business  and  of  residence  as  fixing  the 
place  of  domicil ;  Pothier,  Introd.  Gen.  Gout. 
d'Orleans,  c.  1,  art.  1,  §  8;  Story,  Confl.  Laws 


§  42.  This  may  go  far  towards  reconciling 
the  discrepancies  of  the  common  law  and 
civil  law  as  to  what  law  is  to  govern  in  re- 
gard to  contracts- 
Legal  residence,  inhabitancy,  and  domicil 
are  generally  used  as  synonymous ;  Isham  v. 
Gibbons,  1  Bradf.  Surr.  (N.  Y.)  70;  Del 
Hoyo  v.  Brundred,  20  N.  J.  L.  328;  Bartlett 
v.  Brisbane,  2  Rich.  (S.  C.)  489;  Moore  v. 
Wilkins,  10  N.  H.  452;  Cooper  v.  Galbraith, 
3  Wash.  C.  C.  555,  Fed.  Cas.  No.  3,193; 
Crawford  v.  Wilson,  4  Barb.  (N.  Y.)  505; 
Holmes  v.  Greene,  7  Gray  ( Mass.)  299 ; 
Church  v.  Crossman,  49  la.  447 ;  but  much 
depends  on  the  connection  and  purpose;  In 
re  Thompson,  1  Wend.  (N.  Y.)  43;  Lyman  v. 
Fiske,  17  Pick.  (Mass.)  231,  28  Am.  Dec.  293; 
Inhabitants  of  Exeter  v.  Inhabitants  of 
Brighton,  15  Me.  158 ;  "residence"  has  a  more 
restricted  meaning  than  "domicil ;"  Chariton 
County  v.  Moberly,  59  Mo.  238;  Foster  v. 
Hall,  4  Humph.  (Tenn.)  346 ;  Borland  v.  Bos- 
ton, 132  Mass.  89,  42  Am.  Rep.  424.  So  also 
in  insolvency  statutes ;  Cobb  v.  Rice,  130 
Mass.  231;  those  relating  to  administration 
and  distribution ;  White  v.  Tennant,  31  W. 
Va.  790,  8  S.  E.  596,  13  Am.  St.  Rep.  896; 
testamentary  matters ;  In  re  Zerega's  Will, 
20  N.  Y.  Supp.  417;  eligibility  for  public 
office;  People  v.  Piatt,  50  Hun  454,  3  N.  Y. 
Supp.  367 ;  attachment  statutes ;  Labe  v. 
Brauss,  12  Pa.  Co.  Ct.  Rep.  255;  and  mat- 
ters of  jurisdiction ;  De  Meli  v.  De  Meli,  120 
N.  Y.  485,  24  N.  E.  996,  17  Am.  St.  Rep. 
652;  Bradley  v.  Fraser,  54  la.  289,  6  N. 
W.  293;  Penfield  v.  R.  Co..  29  Fed.  494. 
Within  divorce  statutes,  residence  has  been 
construed  as  equivalent  to  domicil ;  Graham 
v.  Graham,  9  N.  D.  SS,  81  N.  W.  44;  Downs 
v.  Downs,  23  App.  D.  C.  381;  Hinds  v. 
Hinds,  1  la.  36;  but  it  must  be  an  actual 
residence;  Hamill  v.  Talbott,  81  Mo.  App. 
210.  Besides  mere  bodily  presence  with- 
in the  state,  there  must  be  the  present  bona 
fide  purpose  of  abiding  there  indefinitely  as 
a  home;  Graham  v.  Graham,  9  N.  D.  88,  81 
N.  W.  44 ;  mere  length  of  time  during  which 
a  person  has  lived  in  a  particular  locality 
is  not  controlling ;  and  if  he  remain  there 
longer  than  the  period  of  time  required  to 
give  him  a  legal  residence,  but  without  any 
intention  of  making  it  his  permanent  place 
of  residence,  he  does  not  become  a  resident 
thereof;  Sylvester  v.  Sylvester,  109  la.  401, 
SO  N.   W.   547. 

The  term  citizenship  ordinarily  conveys  a 
distinct  idea  from  that  of  domicil ;  State  v. 
Adams,  45  la.  99,  24  Am.  Rep.  760 ;  but  it  is- 
often  construed  in  the  sense  of  domicil ;  Mor-- 
ris  v.  Gilmer,  129  U.  S.  315,  9  Sup.  Ct.  289, 
32  L.  Ed.  690 ;  Comitis  v.  Parkerson,  56  Fed. 
556,  22  L.  R.  A.  148. 

Two  things  must  concur  to  establish  dom- 
icil,— the  fact  of  residence  and  the  intention 
of  remaining.  These  two  must  exist  or  must 
have  existed  in  combination ;  State  v.  Hal- 
lett,  8  Ala.  159 ;  Crawford  v.  Wilson,  4  Barb 


D<»MI<  IL 


917 


l   IL 


(N.  Y.)  504;  Shelton  v.  Tiffin,  0  How.  (U.  S.) 
10.°.,  12  L.  Ed.  387;  Lyman  v.  Fiske,  IT  Pick. 
(Mass.)  231,  28  Am.  Dec.  293;  Hairston  v. 
Hairston,  27  Miss.  704,  83  Am.  Dec.  530; 
Leach  v.  Pillsbury,  15  N.  II.  137;  City  of 
Hartford  v.  Champion,  58  Cona  268,  20  Atl. 
471.  There  must  have  been  an  actual  resi- 
dence; Roosevelt  v.  Kellogg,  20  Johns.  (N, 
Y.i  208;  Hennen  v.  Hennen,  12  La.  LOO;  D  - 
esbats  v.  Berquier,  l  Binn.  (Pa.)  349,  2  Am. 
Dec.  448.  The  character  of  the  residence  is 
of  no  Importance;  Inhabitants  of  Waterbor- 
ough  v.  inhabitants  of  Newfield,  8  GreenL 
(Me.)  203;  Bradley  v.  Lowry,  Spec: 
is.  C.)  3,  39  Am.  Dec  1 12;  5  E.  L.  vV  Eq.  52; 
Veruet  v.  Bonvillain,  33  La.  Ann.  1304;  and 
if  it  has  once  existed,  mere  temporary  ab- 
sence will  not  destroy  it,  however  long  con- 
tinued; 7  CL  &  P.  842;  Sherwood  v.  Judd, 
^  Bradf.  Suit.  (N.  V.)  267;  Boyd  v.  Beck, 
29  Ala.  703;  Mclntyre  v.  Chappell,  i  Tex. 
187;  inhabitants  of  Knox  v.  Inhabitants  <>f 
Waldoborough,  ::  Greenl.  (Me.)  455;  Shattuck 
v.  Maynard,  3  N.  H.  123;  Fain  v.  Crawford, 
91  Ga.  30,  16  S.  E.  106;  Chariton  County  v. 
Moberly,  59  Mo.  238;  Ross  v.  Ross,  103  Mass. 
576;  as  in  the  case  of  a  soldier  in  the  army; 
Inhabitants  of  Brewer  v.  inhabitants  of  Lin- 
naeus, 36  Me.  128;  Crawford  v.  Wilson,  4 
Barb.  (N.  Y.)  522.  And  the  law  favors  the 
presumption  of  a  continuance  of  domidl;  5 
Ves.  750;  President,  etc.,  of  Harvard  Col- 
lege v.  Gore,  5  Pick.  (Mass.)  370;  White  v. 
Brown,  1  Wall.  Jr.  217,  Fed.  Cas.  No.  17,538; 
Chaine  v.  Wilson,  1  Bosw.  (N.  Y.i  673; 
Hood's  Estate.  21  Pa.  100 :  Ferguson  v. 
Wright,  113  N.  C.  537,  is  s.  ]•:.  691.  The 
original  domicil  continues  till  it  is  fairly 
changed  for  another:  5  Madd.  232,  370;  Jen- 
nisou  v.  Hapgood,  10  Pick.  (Mass.)  77:  State 
v.  Hallett,  8  Ala.  159;  Layne  v.  Pardee,  2 
Swan  (Tenn.)  232;  Holliman's  Heirs  v.  Pee- 
bles, 1  Tex.  "673;  Burnham  v.  Rangeley,  1 
Woodb.  &  M.  s.  Fed.  Cas.  No.  2,176;  inhabi- 
tants of  Exeter  v.  inhabitants  of  Br 
15  Me.  "">s:  Baird  v.  Byrne,  3  Wall  Jr.  11, 
Fed.  Cas.  No.  757;  and  revives  on  an  inten- 
tion to  return;  1  Curt.  Eccl.  856;  Frost  v. 
Brisbin,  19  Wend.  (N.  V.)  11.  32  Am.  Dee 
423;  The  Venus.  8  Cra.  (U.  S.)  278,  3  L.  Ed. 
r>.-.:;:  3  C.  Rob.  12;  The  Friendschaft,  3 
Wheat.  (U.  S.)  1 1.  i  L  Ed.  322;  State  v.  Hal- 
lett, 8  Ala.  159;  Miller's  Estate,  3  Rawle 
(Pa.)  312,  -i  Am.  Dee.  345;  The  Ann  Green, 
l  call.  275,  Fed.  Cas.  No.  H4;  Catlin  v. 
Gladding,  i  Mas.  308,  Fed.  Oaa  No.  2,520; 
L.  R.  1  II.  L.  Se.  11:  In  re  Wrigley,  S  Wend. 
(N.  V.)  134.  This  principle  Of  revival,  how- 
ever, is  said  Dot  to  apply  where  both  domi- 
eils  are  domestic;  G  Madd.  ."7!» :  Am.  Lead. 
Cas.  714.  Where  a  young  man  left  the  slate 
of  his  original  domici]  to  ,-r"  to  another  state 
to  fill  a  definite  engagement  for  a  year  and 
for  his  health,  and  at  the  end  of  Buch  en- 
gagement, returned  to  the  domicil  of  his 
origin,  it  was  held  that  if  he  had  ever  re- 
nounced his  domicil  of  origin,  he  had  regain- 


ed   it    1  v    : 

had  a  domidl  elsewhere;  Ma. 

Men-  taking    .■ 
' 

:•   domicil;    Bi 
Eq.  (S.  0.)  l,  39  Am.   I 
511 :  inhabitant 

••.  -l  Me  nam  v.  .; 

L  Curt  1 
alta,   -1  Cal.   17.".:    Bart! 
York,  5  Sand;.  (X.   Y.i   11  ;  Prl 

.  i.   291  ;    State   v.    i 
Mo.  678  :  at  r  is  it  •■"•  en  j 
Of  domidl   when  the  nal  u 
either  is  inconsistent  with,  or  rebuts  the 
sumption  of  thi  ••  of  an  an 

nendi;   Dicey,   Dom   Rule   19/;  34    L.  J 
212.    Nor  is  Intention  of  constituting  d 
alone,   onless  accompanied   bj 
furtherance    of    such    intention;    I 
Wilson.    1    Bosw.    (N.    1.)    673;    B 
Barley,  5  Md.  186,  59  Am  Dec.  107;  Wright 
v.  Boston,  ii'ti  Mass.  163  |  Appeal,  7.". 

Pa.  201  :  Morris  v.  Gilmer,   129  I 
Sup.  Ct  289,  32   I..   B<L  690.     A    subs  quent 
may  be  graft  d  on  a  I 

:  2  C.  Rob.  3!  place 

with   an    intention   ,,f   remaining   then 
an  Indefinite  period  and  as  a  pla< 
present  domici  .  domidl,  though 

be  a  floating  intent  ion  to  rel  urn  ;  •_•  B. 
&  P.  228;  3  Hagg.  Eccl.  374.     Both  b 
aney    and    intention    are    to    a    great    I 
matters   of    fad,   and    may   be 
slight   Indications;  Pearce  v.  State,   l    S 
(Tenn.)  63,  60  Am.  Dec.  135;  Berry  v.  Hull, 
(i  X.  M.  643,  30  Pac.  936.    a  b1   •  . 
quiring  ti  residence  will  be  stridlj 
and  where  a  person  Bpends  part  of  hi- 
in  one  state  and  the  other  part  at' his  home 
in  another,  and  where  he  has  no  busin 
the  former  but  appears  to  be  gaining  I 
denee  for  the  purp  se  of  divorce  only. 

not  a  bona  fide  resident  :  Aibee  v.  All 43 

111.  App.  370.    The  place  where  a  person  lives 
umed  to  be  the  place  of  d Idl  until 

establish  the  contrary  ;  2  B.  >v   P 
m:  2   Kent  532:  Shepard  v.  Wright,  118   N. 

Y.  582,  21  N.  E.  l- 1.    A  Je lent  is  presumed 

to  have  been  domiciled  at  the  place  where  be 
died :    King  v.   r.   s..   27  Ct   CL    " 
\'es.  Jr.  750;  but  where  he  was  a  noi 
dent    of  the  state   fbr  many   years   and   until 
within   two  months  prior  to  his  death,  the 
presumption   Is  thai   be  was  a   non-resident 
at   the  time  of  hi*  death:  Price  v.  Price,  156 
Pa.  817,  27  Atl.  29L 
Proof  of  domici]   does  not    depend   upon 

any    particular    fact,    but    upon    whether    all 
the    facts    and    drcumstances    taken    together 

tend   to  establish   the   fact;    inhabitant 
Abington    v.    inhabitants   of   North    Bridge- 
water,  23  Pick.  (Mass.)  170;  Appeal  of  Hind- 
man,  s-"'  Pa.  466.     Engaging  In  business  and 
voting   in  a   particular   pli 
domicil  there;  Myr.  Prob.  CaL  237;  voting 


DOMICIL 


918 


DOMICIL 


In  a  place  is  evidence,  though  not  conclu- 
sive ;  Hayes  v.  Hayes,  74  111.  312 ;  Inhabitants 
of  East  Livermore  v.  Inhabitants  of  Farm- 
ington,  74  Me.  154;  Easterly  v.  Goodwin.  35 
Conn.  279,  95  Am.  Dec.  237  ;  Smith  v.  Croom, 
7  Fla.  81;  Hewes  v.  Baxter,  48  La.  Ann. 
1303,  20  South.  701,  36  L.  R.  A.  531.  That  it 
will  be  given  decisive  weight,  see  Wolf  v. 
McGavock,  23  Wis.  51S ;  that  it  will  turn  the 
scale  in  a  case  where  a  man  has  two  places 
of  residence  at  different  times  of  the  year, 
see  Hairston  v.  Hairston,  27  Miss.  704,  61 
Am.  Dec.  530;  Chariton  County  v.  Moberly, 
59  Mo.  23S.  The  mere  act  of  registration  as 
a  voter  is  not  conclusive  as  to  change  of  resi- 
dence;  Mallard  v.  Bank,  40  Nebr.  784,  59  N. 
W.  511 ;  but  see  Fulham  v.  Howe,  60  Vt.  351, 
14  Atl.  652,  apparently  contra;  is  a  circum- 
stance to  be  considered  with  others;  Lyman 
v.  Fiske,  17  Pick.  (Mass.)  231,  38  Am.  Dec. 
293 ;  so  of  a  poll  tax ;  Chase  v.  Chase,  66  N. 
H.  588,  29  Atl.  553;  payment  of  taxes; 
so  is  the  execution  of  one's  will  in  accord- 
ance with  the  laws  of  a  particular  place; 
Dupuy  v.  Wurtz,  53  N.  Y.  556;  attending  a 
particular  church ;  Fulham  v.  Howe,  62  Vt. 
3S6,  20  Atl.  101.  But  the  ownership  of  real 
estate  in  a  place  not  coupled  with  residence 
therein  is  of  no  value;  Price  v.  Price,  156 
Pa.  617,  27  Atl.  291;  Holliman's  Heirs  v. 
Peebles,  1  Tex.  673.  Declaring  an  intent  to 
become  a  citizen  is  not  sufficient  to  prove 
an  intention  to  adopt  a  domicil  in  the  place 
where  the  declaration  is  made;  Bremme's 
Estate,  13  Pa.  C.  C.  R.  177.  Declarations 
made  at  the  time  of  change  of  residence  are 
evidence  of  a  permanent  change  of  domicil, 
but  a  person  cannot,  by  his  own  declara- 
tions, make  out  a  case  for  himself;  Doyle  v. 
Clark,  1  Flipp.  536,  Fed.  Cas.  No.  4,053;  Viles 
v.  City  of  Waltham,  157  Mass.  542,  32  N.  E. 
901,  34  Am.  St.  Rep.  311;  Ayer  v.  Weeks,  65 
N.  H.  248,  IS  Atl.  110S,  6  L.  R.  A.  716,  23 
Am.  St  Rep.  37 ;  but  see  as  to  the  latter,  L. 
R.  2  P.  &  M.  435.  Declarations  of  the  party 
are  admissible  to  prove  domicil;  Gundlin  v. 
Packet  Co.,  6  Misc.  620,  26  N.  Y.  Supp.  73; 
Hulett  v.  Hulett,  37  Vt.  586 ;  Reeder  v.  Hol- 
comb,  105  Mass.  94 ;  Rucker  v.  Bolles,  80  Fed. 
504,  25  C.  C.  A.  600;  Kemna  v.  Brockhaus, 
5  Fed.  762,  10  Biss.  128 ;  but  acts  are  said  to 
be  more  important  than  words;  Firth  v. 
Firth,  50  N.  J.  Eq.  137,  24  Atl.  916. 

A  finding  that  a  person  intended  to  fix  his 
domicil  in  the  city  wherein  he  was  taxed 
for  personal  property  was  sustained  on  evi- 
dence that  he  had  actually  resided  there  for 
four  years  and  had  built  an  expensive  house 
with  the  evident  intention  of  making  it  his 
permanent  home ;  and  this  against  his  own 
testimony  as  to  his  intention;  Beecher  v. 
Common  Council  of  Detroit,  114  Mich.  228,  72 
N.  W.  206. 

Domicil  is  said  to  be  of  three  kinds, — 
domicil  of  origin,  or  by  birth,  domicil  by 
choice,  and  domicil  by  operation  of  law.  The 
place  of  birth  is  the  domicil  by  birth  if  at 


that  time  it  is  the  domicil  of  the  parents; 
2  Hagg.  Eccl.  405;  Hardy  v.  De  Leon,  5  Tex. 
211.  See  Sasportas  v.  De  La  Motta,  10  Rich. 
Eq.  (S.  C.)  3S.  If  the  parents  are  on  a  jour- 
ney, the  actual  domicil  of  the  parents  will 
generally  be  the  place  of  domicil ;  5  Ves. 
750;  Westl.  Priv.  Int.  Law  17.  Children  of 
ambassadors ;  14  Beav.  441 ;  31  L.  J.  24,  391 ; 
and  consuls ;  L.  R.  1  Sc.  App.  441 ;  4  P.  D.  1 : 
and  children  born  on  seas,  take  the  domicil 
of  their  parents ;    Story,  Confl.  Laws  §  48. 

The  domicil  of  an  illegitimate  child  is  that 
of  the  mother ;  23  L.  J.  Ch.  724  ;  Inhabitants 
of  Houlton  v.  Inhabitants  of  Lubec,  35  Me. 
411 ;  Inhabitants  of  Blackstone  v.  Inhab- 
itants of  Seekonk,  8  Cush.  (Mass.)  75;  but 
it  has  been  thought  better  to  "regard  the  fa- 
ther who  acknowledges  his  illegitimate  chil- 
dren, or  who  is  adjudged  to  be  such  by  the 
law,  as  imparting  his  domicil  to  such  chil- 
dren;" Whart.  Confl.  L.  37;  L.  R.  1  Sc. 
App.  441;  see  Westl.  Priv.  Int.  Law  272, 
where  it  is  said  that  the  place  of  birth  of  a 
child  whose  parents  are  unknown,  is  its  dom- 
icil ;  if  that  is  unknown,  the  place  where  ft 
is  found.  The  domicil  of  a  legitimate  child 
is  that  of  its  father;  L.  R.  1  P.  &  D.  611 ;  In- 
habitants of  Freetown  v.  Inhabitants  of  Taun- 
ton, 16  Mass.  52 ;  Lacy  v.  Williams,  27  Mo. 
280  ;  Kennedy  v.  Ryall,  67  N.  Y.  379  ;  Dresser 
v.  Illuminating  Co.,  49  Fed.  257;  Kelly  v. 
Garrett,  67  Ala.  304  ;  2  Hagg.  Eccl.  405  ;  Blu- 
menthal  v.  Tannenholz,  31  N.  J.  Eq.  194; 
Desesbats  v.  Berquier,  1  Binn.  (Pa.)  349,  2 
Am.  Dec.  448;  5  Ves.  786;  see  De  Jarnett 
v.  Harper,  45  Mo.  App.  415.  Westlake  (Int 
Law)  maintains  that  a  posthumous  child 
takes  its  mother's  domicil;  but  see  Whart. 
Confl.  Laws  §  35.  The  domicil  by  birth  of  a 
minor  continues  to  be  his  domicil  till  chang- 
ed; Overseers  of  Paterson  Tp.  v.  Overseers 
of  Byram  Tp.,  23  N.  J.  L.  394;  Hiestand  v. 
Kuns,  8  Blackf.  (Ind.)  345,  46  Am.  Dec.  481. 
See  Dresser  v.  Illuminating  Co.,  49  Fed.  257. 
It  changes  with  that  of  the  father ;  Allgood 
v.  Williams,  92  Ala.  551,  8  South.  722;  La- 
mar v.  Micou,  112  U.  S.  452,  5  Sup.  Ct.  221, 
28  L.  Ed.  751 ;  even  though  there  was  an 
agreement  between  the  parents  upon  their 
separation  that  the  mother  should  have  the 
control  of  the  child ;  Lanning  v.  Gregory, 
100  Tex.  310,  99  S.  W.  542, 10  L.  R.  A.  (N.  S.) 
690,  123  Am.   St.  Rep.  809. 

A  student  does  not  change  his  domicil  by 
residence  at  college;  Granby  v.  Amherst,  7 
Mass.  1 ;  Fry's  Election  Case,  71  Pa.  302,  10 
Am.  Rep.  69S;  Sanders  v.  Getchell,  76  Me. 
158,  49  Am.  Rep.  606;  Hart  v.  Lindsey,  17 
N.  H.  235,  43.  Am.  Dec.  597;  and  a  prisoner 
removed  from  his  domicil  for  temporary  im- 
prisonment does  not  acquire  a  new  domicil ; 
Barton  v.  Barton,  74  Ga.  761 ;  Young  v.  Pol- 
lak,  85  Ala.  439,  5  South.  279;  Topsham  v. 
Lewiston,  74  Me.  237,  43  Am.  Rep.  584;  or 
a  convict  for  a  long  term ;  Topsham  v.  Lew- 
iston, 74  Me.  237,  43  Am.   Rep.  584;    or  a 


DOMICIL 


919 


DOMICIL 


fugitive  from  justice  though  intending  never 
to  return ;  Cobb  v.  Rice,  130  Mass.  231 ;  but 
see  Young  v.  Folia  k,  85  Ala.  439,  5  South. 
279.  A  change  of  residence  fur  purposes  of 
health  duos  nol  generally  establish  a  new 
donii.il  ;  Ex  parte  Blumer,  27  Tex.  731;  Still 
v.  Wuudville,  38  Miss.  G4G.  Absence  in  the 
service  of  the  government  does  not  ne 
rily  affect  the  domicil ;  Hannon  v.  Qrizzard, 
89  N.  C.  115;  Dennis  v.  State,  17  1  la.  389; 
In  re  Town  of  Highlands,  22  N.  Y.  Supp. 
137;  depending,  of  course,  on  the  Intention 
of  the  parly;  Darragh  v.  Bird,  3  Or.  229; 
Wood  v.  Fitzgerald,  i<l.  568;  Mooar  v.  Har- 
vey, 128  Mass.  219.  a  diplomatic  representa- 
tive residing  abroad  does  nut  change  bis  dom- 
icil; Com.  v.  Junes,  V2  Pa.  365;  or  a  con- 
sul; Wooldridge  v.  Wilkins,  •'!  How.  (Miss.) 
360;  or  one  in  the  military  or  naval  service; 
Brewer  v.  Linnaeus,  30  Me.  4L'.s ;  Mooar  v. 
Harvey,  128  Mass.  219;  nor  a  sailor  absent 
on  duty;  Hallet  v.  Bassett,  100  Mass.  167. 

It  was  held,  however,  in  Tennessee,  on  a 
suit  for  divorce,  that  the  acquisition  of  an 
actual  home  in  Washington,  by  the  petition- 
er, with  the  intention  of  remaining  there  for 
an  indefinite  time,  countervailed  declara- 
tions of  intention  to  return  to  Tennessee 
upon  the  happening  of  an  uncertain  future 
event;  Sparks  v.  Sparks,  114  Tenn.  666,  8S  S. 
W.  173;  so  one  who  left  a  state  for  the  pur- 
pose of  teaching  school  (the  question  arising 
as  to  the  statute  of  limitations);  Dignam  v. 
Shaff,  51  Wash.  412.  98  Pac.  111::.  22  L.  R.  A. 
(N.  S.)  996 :  Redfearn  v.  Hines,  123  Ga.  391, 
51  S.  E.  407. 

The  domicil  of  origin  always  remains  in 
abeyance,  as  it  were,  to  be  resorted  to  the 
moment  the  domicil  of  choice  is  given  up. 
If  one  leaves  a  domicil  of  choice,  with  the 
intention  of  acquiring  a  new  one.  his  domi- 
cil of  origin  attaches  the  moment  be  leaves 
the  former,  and  persists  until  he  acquires 
the  latter ;  L.  R.  1  Sc.  App.  441 ;  Marks  v. 
Marks.  75  Fed.  321;  Dicey.  Dom.  92.  This, 
however,  can  only  be  true  of  national,  as  dis- 
tinguished from  local  domicil :  when  a  local 
domicil  of  choice  is  acquired,  it  certainly  per- 
sists until  a  new  one  is  adopted. 

Domicil  by  choice  is  that  domicil  which  a 
person  of  capacity  of  his  free  will  selects  to 
be  such. 

Domicil  is  conferred  in  many  cases  by  op- 
eration of  law,  either  expressly  or  conse- 
quentially. The  domicil  of  the  husband  is 
that  of  the  wife:  Hanberry  v.  Hanberry,  29 
Ala.  719;  McAfee  v.  University,  7  Bush  (Ky.) 
135;  Wingfield  v.  Rhea,  77  Ga.  84;  Babbitt 
v.  Babbitt,  69  m.  277;  Mason  v.  Homer,  i<>"> 
Mass.  116;  Baldwin  v.  Elagg,  43  X.  .1.  F.  195; 
7  II.  L.  C.  390:  Anderson  v.  Watt,  138  U.  S. 
694,  11  Sup.  Ct.  449.  34  L.  Ed  107&  a  wo- 
man on  marriage  takes  the  domicil  of  her 
husband,  and  a  husband,  if  entitled  to  a  di- 
vorce, may  obtain  it  though  the  wife  be  ac- 
tually resident  in  a  foreign  state;    2  CI.  & 


:    Parrett  v.  Palmer,  8  Ind.  App.  356, 
52  Am.   SI  lurner 

v.  Turner. 

Wis.  II).-.,  14  N.  W.  • 
But,  where  it  i 
the   wife   may   acquire   a 
Which  may  be  in  the 
ver  v.  Wilson,  0  Wall.  (1 
604;  Dutei,. 

■  •  57  Mo.  -  ipman  v.  Chapman, 

129  Hi.  386,  21  N.  B.  806;    Barber  v.  r. 
21  How.  (U.  8.)  582,   16  F.  Ed.  22( 
2  CI.  &  F.  488;    Di<  • 

□  her  husband's  domicil  for  the  p 
of  obtaining  a  divorce;   Ma-ten  v.  Mast 
x.  11.  159;    Williamson  v.  Parislen,  l  . 
Ch.    (X.    Y.)   389;    Fickle   v.   Fickle.   6 
(Tenn.)   203 ;    P<  rson   \.  .mi.br. 

I  148;  McDermott's  Appeal,  B  W.  St  S. 
(Pa.)  251.  See  Wood  v.  Wood,  54  Ark.  172,  15 
s.  W.   159;   •■:<>  Am.  L  Rev.  <m\  ;    I 

a  wife  divorced  <i  mensa  >t  thoro  may  ac- 
'  quire  a  separate  domicil  BO  as  t"  sue  her  hus- 
band in  the  United  states  courts;    Barber  v. 
Barber,  21  How.  (1  16  L.  I 

so  where  the  wife  is  deserted; 
Moffatt.  5  Cal.  280;   2  B.  J..  &  Eq.  52;   2 
."'7.;:     but   tie-   right  to  do   s..  from 

the  necessity  Cor  it-  i  Hunt  v.  Hunt, 

7l'  x.  v.  217,  28  Am.  Rep.  129;   Atherton  v. 
Atherton,  155  X.  Y.  129,   19  X.  i:.  933, 
R.  a.  291,  »;•':  Am.  st.  Rep.  650;    Cheever  v. 

Wilson.  9   Wall.    (U.    S.i    VS.:.    V.)    F.    Ed 
Haddock  v.  Haddock,  201  i  .  I  Sup. 

Ct.  525,  50  F.   F.d.  867,  5  Ann.  Caa   1.     Tin- 
wife   of   an    insane    person    may    change    her 
domicil ;    McKnight  v.  Dudley,  l  !- 
7S  C.  C.  A.  102. 

Where  a  husband  and  wife  had  an  estab- 
lished permanent  r-  in  Mint.' 
and  the  wife  was  compelled  by  her  husband's 
threats  to  remove  tu  Massat  impli- 
ance  with  his  commands  was  held  not  to  con- 
stitute an  abandonment  of  her  domicil  in 
Minnesota,  though  she  remained  in  V 
chusetts  several  years;    Bechtel   v.   Bechtel, 

KH    Minn.    511,    11-    X.    W.    ^s;;     pj    p     I:     A 

iX.  s.i  LlOO;  so  a  wife's  absence  from  the 
city,   after  being   deserted   by  her  husband, 

without  the  Intention  of  making  her  home 
elsewhere,    was   held   nut   BUffldent    t<>  Change 

her  domicil  in  a  suit  fur  divorce;    Humphrey 

v.  Humphrey,  ii">  Mo.  App.  361,  '.»i  s.  w.  ne. 
Where  the  domicil  of  matrimony  was  in  a 
particular  state,  and   the  husband  ahai. 

his  wife  and  went  Into  another  state  to  avoid 
his  marital  obligations,  BUCh  other  state  did 
not  become  a  new  domicil  of  matrimony, 

re    was    not    to    be    treated    as    the    ne- 
lual  or  Constructive  domlOil  of  the  wile:  Had- 
dock v.   lb  201  U.  s.  562,  26  Suj 
525,  50  F.   Fd.  867,  5  Ann.   Cas.   1. 

A  British  subject  born  in  England  had  re- 
sided in  France  under  such  circumstances 
that  the  English  law  would  deem  him  duini- 


DOMICIL 


920 


DOMICIL 


ciled  there,  although  he  did  not  acquire  a 
domicil  which  the  French  law  would  recog- 
nize. He  died  leaving  a  will  disposing  of 
movables  in  England;  held  that  the  will 
should  be  governed  by  the  English  law;  22 
T.  L.  R.  711,  following  [1903]  1  Ch.  821.  Un- 
der somewhat  similar  circumstances,  the  per- 
sonal property  of  a  decedent  was  held  to  be 
subject  to  the  law  of  France,  which  recog- 
nizes a  conjugal  domicil  analogous  to  what 
is  known  in  our  law  as  a  matrimonial  domi- 
cil, and  is  distinguished  from  that  domicil 
which  is  required  for  the  purpose  of  con- 
tracting a  lawful  marriage;  Harral  v.  Har- 
ral,  39  N.  J.  Eq.  279,  51  Am.  Rep.  17,  where 
it  was  held  that  the  government  authoriza- 
tion required  by  the  French  code  to  estab- 
lish a  domicil  in  France  is  not  necessary  to 
establish  a  conjugal  domicil,  citing  Le  Bre- 
ton v.  Nouchet,  3  Mart.  O.  S.  (La.)  60,  5  Am. 
Dec.  736 ;  Kneeland  v.  Ensley,  Meigs  (Tenn.) 
620,  33  Am.  Dec.  168;  Glenn  v.  Glenn,  47 
Ala.  204;  Mason  v.  Homer,  105  Mass.  116, 
to  the  point  that  with  respect  to  the  prop- 
erty rights  of  husband  or  wife  in  the  person- 
al property  of  the  other,  derived  from  the 
marriage  relation,  the  place  where  the  mar- 
riage was  celebrated  is  not  decisive ;  these 
rights  depend  on  the  matrimonial  domicil. 
An  English  case  held  that  where  the  matri- 
monial domicil  was  English,  the  English 
courts  had  jurisdiction  to  entertain  a  suit 
for  judicial  separation,  though  the  domicil  of 
the  parties  was  German;  23  T.  L.  R.  539. 
So  in  suits  for  nullity,  residence  and  not 
domicil  is  the  test  of  jurisdiction ;  48  L.  J. 
P.  1 ;   71  id.  74 ;    [1902]  P.  143. 

Divorce  is  regulated  by  the  law  of  the 
domicil  of  the  parties;  [1895]  A.  C.  517.  A 
domicil  for  this  purpose  requires  both  the 
animus  and  the  factum ;  L.  R.  1  H.  L.  Sc. 
307 ;  and  the  intention  is  itself  a  question  of 
fact,  to  be  determined  by  evidence,  the  dec- 
larations of  the  party  not  being  conclusive ; 
[1S92]  3  Ch.  180. 

The  domicil  of  a  widow  remains  that  of 
her  deceased  husband  until  she  makes  a 
change;  Story,  Confl.  Laws  §  46;  Mifflin  Tp. 
v.  Elizabeth  Tp.,  18  Pa.  17. 

Commercial  domicil.  There  may  be  a  com- 
mercial domicil  acquired  by  maintenance  of 
a  commercial  establishment  in  a  country,  in 
relation  to  transactions  connected  with  such 
establishments;  1  Kent  82;  Lau  Ow  Bew  v. 
U.  S.,  144  U.  S.  47,  12  Sup.  Ct.  517,  36  L.  Ed. 
340 ;  U.  S.  v.  Chin  Quong  Look,  52  Fed.  203. 
See  Dicey,  Dom.  341 ;  The  Dos  Hermanos,  2 
Wheat.  (U.  S.)  76,  4  L.  Ed.  1S9. 

This  is  such  a  residence  in  a  country  for 
purposes  of  trade  as  makes  a  person's  trade 
or  business  contribute  to  or  form  part  of  the 
resources  of  such  country.  The  question  is 
whether  he  is  or  is  not  residing  in  such  coun- 
try with  the  purpose  of  continuing  to  trade 
there;  Dicey,  Confl.  Laws  737.  The  inten- 
tion of  remaining  in  the  commercial  domicil 


is  the  intention  to  continue  to  reside  and 
trade  there  for  the  present ;  id.  738.  Com- 
mercial domicil  is  not  forfeited  by  temporary 
absence  at  the  domicil  of  origin;  Lau  Ow 
Bew  v.  U.  S.,  144  U.  S.  63,  12  Sup.  Ct.  517,  36 
L.  Ed.  340 ;  but  if  a  person  go  into  a  foreign 
country  and  engage  in  trade  there,  he  is,  by 
the  law  of  nations,  to  be  considered  a  mer- 
chant of  that  country,  and  subject  for  all 
civil  purposes,  whether  that  country  be  hos- 
tile or  neutral ;  3  B.  &  P.  113 ;  3  C.  Rob.  12  ; 
1  Hagg.  103,  104;  U.  S.  v.  Gillies,  1  Pet.  C. 
C.  159,  Fed.  Cas.  No.  15,206 ;  Murray  v.  The 
Charming  Betsy,  2  Cra.  (U.  S.)  64,  2  L.  Ed. 
208 ;  and  this  whether  the  effect  be  to  ren- 
der him  hostile  or  neutral  in  respect  to  his 
bona  fide  trade ;   1  Kent  75 ;   3  B.  &  P.  113 ; 

1  C.  Rob.  249. 

Corporations.  If  the  term  domicil  can  ap- 
ply to  corporations,  they  have  their  domicil 
wherever  they  are  created;  L.  R.  1  Ex.  428; 
5  H.  L.  416;  City  of  St.  Louis  v.  Ferry  Co., 
40  Mo.  5S0 ;  see  North  &  South  Rolling  Stock 
Co.  v.  People,  147  111.  234,  35  N.  E.  608,  24 
L.  R.  A.  462 ;  irrespective  of  the  residence 
of  the  officers  or  the  place  where  the  business 
is  transacted;  Merrick  v.  Van  Santvoord,  34 
N.  Y.  208.  If  the  charter  does  not  fix  the 
domicil,  and  the  directors  hold  their  meetings 
in  several  places,  the  domicil  for  taxing  pur- 
poses will  be  where  the  by-laws  require  the 
stockholders  to  hold  their  meetings;  Grundy 
County  v.  Coal  Co.,  94  Tenn.  295,  29  S.  W. 
116.  The  New  York  rule  is  that  it  is  to  be 
where  the  principal  place  of  business  is  sit- 
uated; Austen  v.  Telephone  Co.,  73  Hun  98, 
25  N.  Y.  Supp.  916.  The  place  where  the 
business  is  done  and  where  its  personal  prop- 
erty is  situated  is  the  situs  of  such  property 
for  taxation ;  Atlantic  &  P.  R.  Co.  v.  Lesueur, 

2  Ariz.  428,  19  Pac.  157,  1  L.  R.  A.  244,  2 
Interst.   Com.  Rep.  189. 

A  permanent  foreign  agency  of  an  insur- 
ance company  may  create  an  independent 
domicil  in  the  place  of  the  agency,  for  the 
purpose  of  enforcing  legal  obligation ;  Mar- 
tine  v.  Life  Ins.  Soc,  53  N.  Y.  339,  13  Am. 
Rep.  529.  See  Ohio  &  M.  R.  Co.  v.  Wheeler, 
1  Black  (U.  S.)  286,  17  L.  Ed.  130.  See  Foe- 
eign  Corporation;  Citizen. 

Change  of  domicil.  Any  person,  sui  juris, 
may  make  any  bona  fide  change  of  domicil 
at  any  time;  5  Madd.  379;  President,  etc., 
of  Harvard  College  v.  Gore,  5  Pick.  (Mass.) 
370 ;  35  E.  L.  &  Eq.  532.  And  the  object  of 
the  change  does  not  affect  the  right,  if  it  be  a 
genuine  change  with  real  intention  of  per- 
manent residence ;  Cooper  v.  Galbraith,  3 
Wash.  C.  C.  546,  Fed.  Cas.  No.  3,193;  Case 
v.  Clarke,  5  Mas.  70,  Fed.  Cas.  No.  2,490; 
Catlett  v.  Ins.  Co.,  1  Paine  594,  Fed.  Cas.  No. 
2,517 ;  Young  v.  Pollak,  85  Ala.  439,  5  South. 
279.  Domicil  is  not  lost  by  going  to  another 
state  to  seek  a  home,  but  continues  until  the 
home  is.  obtained ;  Labe  v.  Brauss,  12  Pa.  Co. 
Ct.  R.  255.    Where  the  parties  had  abandoned 


DOMICIL 


921 


DOMICIL 


their  domicil  and  were  on  their  way  to  their 
future  home,  the  former  domicil  was  not 
lost  before  their  arrival  at  the  place  of  the 
new  domicil;  Shaw  v.  Shaw,  98  .Mass.  158. 
Until  a  new  domicil  is  obtained,  the  old  one 
is  not  lost;  Desmare  v.  I  .  S.,  93  U.  S.  <J05, 
23  L.  Ed.  959;  Inhabitants  of  Monsou  v.  In- 
habitants of  Fairfield,  55  Me.  117 ;  but  is 
presumed  to  continue  until  shown  to  have 
been  changed;  Anderson  v.  Watt,  138  U.  S. 
694,  11  Sup.  Ct.  449,  34  L.  Ed.  1078;  Des- 
mare v.  U.  S.,  9^  U.  S.  ci  i.l.  L':;  L.  Ed  959. 

To  constitute  a  change  of  domicil  three 
things  are  essential:  (1)  Residence  in  anoth- 
er place;  (2)  an  intention  to  abandon  the 
old  domicil ;  and  (3)  an  intention  of  acquir- 
ing a  new  one;  or  as  some  writers  express  it 
there  must  be  an  animus  non  racrli  udi  and 
an  animus  manendi,  or  animus  ct  fact  urn; 
Berry  v.  Wilcox,  M  Neb.  82,  o2  N.  W.  249,  48 
Am.  St.  Rep.  TUG;  Hayes  v.  Hayes,  74  111. 
312;  34  L.  J.  Ch.  N.  S.  212;  10  H.  L.  Cas. 
272;  In  re  Reed's  Will,  48  Or.  500,  87  l'ac. 
763. 

The  factum  is  the  transfer  of  the  bodily 
presence,  and  the  animus  is  the  Intention  of 
residing  permanently  or  for  an  indefinite 
period.  A  wife's  removal  into  another  state 
for  the  benefit  of  her  husband's  health  and 
a  residence  there  for  twelve  years  will  not 
change  the  original  domicil;  In  re  Reed's 
Will,  48  Or.  500,  87  Pac.  763;  Ensor  v.  Graff, 
43  Md.  291;  Cruger  v.  Phelps.  L'L  Misc.  2o2, 
47  X.  Y.  Supp.  61;  Still  v.  Corp.  of  Wood- 
ville,  38  Miss.  646 ;  10  CI.  &  F.  42 ;  Isham  v. 
Gibbons,  1  Bradf.  (N.  Y.)  69.  In  73  L.  J.  K. 
B.  N.  S.  613,  reversing  85  L.  T.  N.  S.  SOS,  65 
J.  P.  819,  the  House  of  Lords  held  that  the 
burden  of  proving  that  one  whose  domicil  of 
origin  was  in  the  United  States  had  changed 
his  domicil  was  not  overcome  by  proof  that 
he  originally  came  to  England  on  account  of 
his  health,  and  lived  there  for  twenty-seven 
years,  describing  himself  as  an  American 
citizen,  purchasing  property  in  the  United 
States  in  the  hope  of  finally  making  his  home 
there,  etc.  The  Lord  Chancellor  said  that  if 
the  decedent  intended  to  make  England  his 
permanent  home,  that  country  would  become 
his  domicil,  notwithstanding  that  such  in- 
tention was  formed  on  account  of  the  condi- 
tion of  his  health,  but  that  he  could  not 
bring  himself  to  a  conclusion  from  the  1 
whether  the  decedent  entertained  that  inten- 
tion or  not,  and  expressly  rested  his  opinion 
against  a  change  of  domicil  upon  the  fact 
that  the  burden  was  upon  the  party  assert- 
ing a  change  of  domicil  to  establish  it. 

In  the  acquisition  of  a  new  domicil,  more 
is  required  than  a  mere  change  of  residence; 
there  must  be  a  fixed  intention  to  renounce 
birthright  in  the  place  of  original  domicil  and 
to  adopt  the  political  and  municipal  status  In- 
volved by  permanent  residence  of  choice 
elsewhere;  [1906]  A.  C.  56;  94  U  T.  33  (an 
Englishman  who  lived   the  greater  part   of 


each  year  for  thirty  years  in  Scotland  )  ;  and 
a  case  in  -'■',  Ch.  L>iv.  inisi- 

tion  of  a  domicil  of  choice  b\  ..  sub- 

ject   in    any    part   of   China,    on  account    of 
differences  of  n 

L.  Cj.  It.  440,  where  '.:  -  British  diplo- 

matic agents,  etc.,  r<  i   India   I 

Cussed,  I  Qd    the  view  taken   that  their   . 
domicil  is  not  lost     But  it  is  held  in  Mather 
v.  Cunningham,  105  Me  ::::<;.  74  a 
L.   B.  A.    (  X.  S.)  761,   18  Ann.   •  .  that 

the  usual  law  of  domicil  applies  to  an    - 
ciii   as   to   acquiring   a   domicil    in 

A  native  of  the  United  states,  who  had 
lived  twenty  seven  years  in  England,  but  al- 
ways described  himself  as  an  American  citi- 
zen, and  had  bought  property  in  Baltimore 
in  the  hope  of  finally  making  his  home  there, 
though  from  the  state  of  his  health  a  \ 

the  Atlantic  was  impracticable,  was 
held  not  to  have  abandoned  his  domicil  of 
origin;  [1904]  A.  0.  287.  But  a  Scotehmau 
who  for  thirty  years  bad  lived 
where  lie  was  engaged  in  business,  and  who 
never  spoke  of  any  Intention  of  takr 
bis  residence  in  Great  Britain,  but  frequently 
expressed  his  dislike  for  the  Scottish  cli- 
mate and  people,  was  held  to  have,  antmo  <.  / 
facto,  abandoned  his  domicil  of  origin  in 
Scotland  and  acquired  a  domicil  of  choice  in 
Ceylon;    [1907]  Sc,  ::.::;.  Ct.  i 

There    are    limitations    to    the    pow 
change  a  minor  child's  domicil  in  the  case  of 
alien  parents;    5   Last  221;     1'  Mer- 

cein,  8  Paige  Ch.   (X.   Y.)   47;    2   Ken1 
and  of  the  mother,  if  a  widow  ;    Bun 
Carlisle   v.   Tuttle.  30   Ala.   613;     i 
v.   Lynch,  2  Bradf.   Surr.   (N.  Y.)  214;    De 
Jarnett   v.   Harper,  45   Mo.  App.  415;    how- 
ever, if  she  acquires  a  new  domicil  l.y   re- 
marriage, the  child's  domicil  does  not  cl 
Ryall    v.    Kennedy.   40    X.    Y.    Sup.    <'t.    .".17: 
Brown  v.  Lynch,  '_'  Bradf.  Burr.  (N.  X 
Inhabitants   of   Walpole    v.    Inhabitants   of 

ehead,  8  Cush.   (Mass.)  528;    Al 
Thomason,  11  Humphr.  (Tenn.)  .".:;''..  :. t  Am. 
Dec.  55.     See   [1893]  3  Ch.  490;     Lai 
Micou.    112   l'.   s.    152,  6   Sup.  Ct.  221, 
Ed  753  ;    Johnson   v.  Copeland's  Adm'r,  35 
Ala.  521.     If  a  father  abandons  his  children, 
who  are* cared  for  and  live  with  their  -rand- 
mother  for  several  years,  and  uent- 
ly  removes  them  against  her  win. 

of  the  children  is  not  changed  :  Guard- 
ianship of  Vance.  PL'  Cal.   195 
I  Cesser  v.  Illuminating  Vo..  49  Fed  -"7. 

The  guardian   is   said   to   have   the  same 
power  over  his  ward  that  a  parent  has 
his  child  :  Holyoke  v.  Haskins,  5  Pi< 
20,  16  Am.  l  '■■  .  372 ;    Wheeler  v.  Hoi 

v     i:       'fi  -   Ohio 

i   Binn.  •".!'•'.  n. :    'J  Kent  237.     But  see 
contra,    Iliestan.l    v.    Kir  kf.    <  Ind.  ) 

::'.",  k;  Am.  Hoc.  481.    The  point  Is  n 
tied  in  England;    Dicey,  Dom 
Mer.  67;    Appeal  of  Taney,  9  YV.  X.  C.  (Pa.) 


DOMICIL 


1)22 


DOMICIL. 


564.      "It   has   been   generally   held    that    a 
guardian    can    change    tlie    ward's    domicil 
from   one    county   to    another    in    the   same 
state;   Anderson  v.  Anderson's  Estate,  42  Vt, 
350,  1  Am.  Rep.  334;    L.  R.  5  Q.  B.  325.     It 
is   doubtful,   to  say   the  least,   whether   the 
guardian  can  remove  the  ward's  doinicil  out 
of  the  state  in  which  be  was  appointed;    L. 
R.  12  Eq.  G17 ;   Daniel  v.  Hill,  52  Ala.  430.    A 
guardian    appointed    in    a    state    wbere    the 
ward  is  temporarily   residing  cannot  change 
the  ward's  domicil  from  one  state  to  anoth- 
er;"    Lamar  v.  Micou,  112  U.  S.  452,  5  Sup. 
Ct.  221,  28  L.  Ed.  751.     But  see  Woodward 
v.   Woodward,   87  Tenn.  644,  11   S.   W.  892. 
The   mere  appointment  of  a   guardian   will 
not  prevent  the  ward  from  changing  his  dom- 
icil where  he  has  sufficient  mental  capacity 
to  do  so ;   Mowry  v.  Latham,  17  R.  I.  480,  23 
Atl.   13;    Talbot  v.   Chamberlain,   149  Mass. 
57,  20  N.  E.  305,  3  L.  R.  A.  254.     It  may  be 
considered  questionable  whether  the  guard- 
ian can  change  the  national  domicil  of  his 
ward ;   2  Kent  226 ;   Story,  Conn.  Laws  §  506. 
The  domicil  of  a  lunatic  may  be  changed 
by  the  direction  or  with  the  assent  of  his 
guardian;      Holyoke    v.     Haskins,     5    Pick. 
(Mass.)  20,  16  Am.  Dec.   372;    Anderson  v. 
Anderson's  Estate,  42   Vt.  350,   1  Am.   Rep. 
334;    In  re  Kingsley,  160  Fed.  275;    contra, 
Inhabitants    of  Pittsfield   v.    Inhabitants   of 
Detroit,  53  Me.  442.    See  L.  R.  1  P.  &  M.  611 ; 
3  Ves.  Jr.  198 ;    9  W.  R.  764.     If  the  incom- 
petent has  enough  mind  left  to  form  an  ani- 
mus manendi,  the  assent  of  the  guardian  to 
a  change  of  domicil  has  been  held  immate- 
rial;    Appeal  of  Culver,  48  Conn.  165;    Tal- 
bot v.  Chamberlain,  149  Mass.  57,  20  N.  E, 
305,  3  L.  R.  A.  254 ;   see  22  Harv.  L.  R.  220. 
The  husband  may  not  change  his  domicil 
after  committing  an  offence   which   entitles 
the  wife  to  a  divorce,  so  as  to  deprive  her  of 
her  remedy;    Harteau  v.  Harteau,  14  Pick. 
(Mass.)  181,  25  Am.  Dec.  372;    Republic  of 
Texas  v.    Skidmore,  2  Tex.  261.     And  it  is 
said  the  wife  may  not  in  the  like  case  ac- 
quire a  new  domicil;    Frary  v.  Frary,  10  N. 
H.  61,  32  Am.  Dec.  395;   Harding  v.  Alden,  9 
Greenl.  (Me.)  140,  23  Am.  Dec.  549;    Sawtell 
v.  Sawtell,  17  Conn.  284 ;    Fickle  v.  Fickle,  5 
Yerg.   (Tenn.)  203;    Richardson  v.  Richard- 
son, 2  Mass.  153;    Tolen  v.  Tolen,  2  Blackf. 
(Ind.)  407,  21  Am.  Dec.  742. 

The  law  of  the  place  of  domicil  governs  as 
to  all  acts  of  the  parties,  when  not  controlled 
by  the  lex  loci  contractus  or  lex  rei  sitw. 
Personal  property  of  the  woman  follows  the 
law  of  the  domicil  upon  marriage.  It  pass- 
es to  the  husband,  if  at  all,  in  such  cases  as 
a  legal  assignment  by  operation  of  the  law 
of  domicil,  but  one  which  is  recognized  ex- 
tra-territorially  ;  2  Rose  97 ;  Holmes  v.  Rem- 
sen,  20  Johns.  (N.  Y.)  267,  11  Am.  Dec.  269 ; 
Story,  Confl.  Laws  §  423. 

The  state  and  condition  of  the  person  ac- 
cording to  the  law  of  his  domicil  will  gen- 
erally,  though   not  universally,  be  regarded 


in  other  countries  as  to  acts  done,  rights  ac- 
quired, or  contracts  made  in  the  place  of  his 
native  domicil;  but  as  to  acts,  rights,  and 
contracts  done,  acquired,  or  made  out  of  his 
domicil,  the  lex  loci  will  generally  govern  in 
respect  to  his  capacity  and  condition ;  2 
Kent  234.     See -Lex  Loci. 

The  disposition  of,  succession  to,  or  distri- 
bution of  the  personal  property  of  a  de- 
cedent, wherever  situated,  is  to  be  made  in 
accordance  with  the  law  of  his  actual  domi- 
cil at  the  time  of  his  death  ;  8  Sim.  310 ; 
Grattan  v.  Appleton,  3  Sto.  755,  Fed.  Cas. 
No.  5,707;  Rankin  v.  Holloway,  3  Smedes  & 
M.  (Miss.)  617;  Bradley  v.  Lowry,  Speers, 
Eq.  (S.  C.)  3,  39  Am.  Dec.  142;  Graham  v. 
Public  Adm'r,  4  Bradf.  Surr.  (N.  Y.)  127; 
Leach  v.  Pillsbury,  15  N.  H.  137. 

The  principle  applies  equally  to  cases  of 
voluntary  transfer,  of  intestacy,  and  of  tes- 
taments; 5  B.  &  C.  451;  Grattan  v.  Apple- 
ton,  3  Sto.  755,  Fed.  Cas.  No.  5,707 ;  3  Hagg. 
273;  Harrison  v.  Nixon,  9  Pet.  (U.  S.)  503, 
9  L.  Ed.  201;  De  Sobry  v.  De  Laistre,  2  Harr. 
&  J.  (Md.)  191,  3  Am.  Dec.  535;  Blake  v. 
Williams,  6  Pick.  (Mass.)  286,  17  Am.  Dec. 
372;  French  v.  Hall,  9  N.  H.  137,  32  Am. 
Dec.  341 ;  In  re  Roberts'  Will,  8  Paige,  Ch. 
(N.  Y.)  519 ;  Harvey  v.  Richards,  1  Mas.  381, 
Fed.  Cas.  No.  6,184 ;  Thomas  v.  Tanner,  6  T. 
B.  Monr.  (Ky.)  52. 

Wills  are  to  be  governed  by  the  law  of  the 
domicil  as  to  the  capacity  of  parties ;  1  Jarm. 
Wills  3 ;  and  as  to  their  validity  and  effect 
in  relation  to  personal  property;  Irving  v. 
McLean,  4  Blackf.  (Ind.)  53 ;  Conover  v. 
Chapman,  2  Bail.  (S.  C.)  436 ;  Smith  v.  Bank, 
5  Pet.  (U.  S.)  519,  8  L.  Ed.  212;  Barnes' 
Adm'r  v.  Brashear,  2  B.  Monr.  (Ky.)  382;  3 
Curt.  Eccl.  468;  Goodall  v.  Marshall,  11  N. 
H.  88,  35  Am.  Dec.  472;  Hunter  v.  Bryson, 
5  Gill  &  J.  (Md.)  483,  25  Am.  Dec.  313;  Du- 
puy  v.  Wurtz,  53  N.  Y.  556 ;  Johnson  v. 
Copeland's  Adm'r,  35  Ala.  521;  Gilman  v. 
Gilman,  52  Me.  165,  83  Am.  Dec.  502 ;  Appeal 
of  Carey,  75  Pa.  201 ;  but  by  the  lex  rei  sites 
as  to  the  transfer  of  real  property ;  Calloway 
v.  Doe,  1  Blackf.  (Ind.)  372;  Robertson  v. 
Barbour,  6  T.  B.  Monr.  (Ky.)  527 ;  Potter  v. 
Titcomb,  22  Me.  303 ;  Bailey  v.  Bailey,  8  Ohio 
239;  U.  S.  v.  Crosby,  7  Cra.  (U.  S.)  115,  3  L. 
Ed.  287 ;  Applegate  v.  Smith,  31  Mo.  166 ;  Hol- 
man  v.  Hopkins,  27  Tex.  38;  14  Ves.  541; 
Appeal  of  Carey,  75  Pa.  201.     See  Lex  Rei 

SlTiE. 

The  forms  and  solemnities  of  the  place  of 
domicil  must  be  observed ;  4  M.  &  C.  76 ; 
De  Sobry  v.  De  Laistre,  2  H.  &  J.  (Md.)  191, 
3  Am.  Dec.  535;  Desesbats  v.  Berquier,  1 
Binn.  (Pa.)  336,  2  Am.  Dec.  448;  Holmes  v. 
Remsen,  4  Johns.  Ch.  (N.  Y.)  460,  8  Am. 
Dec.  581;  Harvey  v.  Richards,  1  Mas.  381, 
Fed.  Cas.  No.  6,184;  Armstrong  v.  Lear,  12 
Wheat.  (U.  S.)  169,  6  L.  Ed.  589;  Gilman  v. 
Gilman,  52  Me.  165,  S3  Am.  Dec.  502 ;  John- 
son v.  Copeland's  Adm'r,  35  Ala.  521. 

The  local  law  is  to  determine  the  character 


DOMICIL 


923 


DOMICIL 


of  property ;  Chapman  v.  Robertson,  6  Paige, 
Ch.  (N.  Y.)  G30,  31  Am.  Dec.  264 ;  Story,  Confl. 
Laws  §  447;  Ersklne,  Inst  b.  3,  tit.  9,  §  4. 
And  it  is  held  that  a  state  may  regulate  the 
succession  to  personal  as  well  as  real  proper- 
ty within  its  limits,  without  regard  to  the 
lex  domicilii;  Jones  v.  Marable,  0  Ilumphr. 
(Tenn.)  116. 

The  interpretation  of  a  will  of  movables 
is  to  be  according  to  the  law  of  the  place  of 
the  last  domlcil  of  the  testator;  t.  EL  3  II.  L. 
55;  Appeal  of  Freeman,  68  i'a.  151;  l  Bllgh 
502;  Harrison  v.  Nixon,  9  Pet  (U.  B 
9  L.  Ed.  201.  But  so  far  as  its  validity  is 
concerned,  it  does  not  matter  that  after  the 
will  was  made  In  one  domlcil  the  testator  ob- 
tained a  new  domidl,  where  he  died;  Whart 
Confl.  Laws  §  592;  story,  Confl.  I 
g.  See  Dupuy  v.  Wurtz,  53  N.  V.  556.  But 
it  must  be  valid  under  the  law  of  the  new 
domlcil. 

En  England,  by  statute,  a  will  «loes  not  be- 
come invalid  nor  is  its  construction  altered 
by  reason  of  the  testator's  change  of  doinicil 
after  making  it;  Dicey,  Dom.  308.  It  has 
been  said  that  the  rules  as  to  construction 
of  wills  apply  whether  they  be  of  real  or 
personal  property,  unless  in  case  of  real  prop- 
erty it  may  be  clearly  gathered  from  the 
terms  of  the  will  that  the  testator  bad  In 
view  the  lex  rei  sitce;  Story,  Confl.  Laws  § 
479  h;  2  Bligh  60 ;  4  M.  &  C.  76.  But  see, 
contra,  Whart  Confl.  Laws  §  597.  See  CON- 
FLICT of  Laws;  Lex  Rei  Sitk;  Will. 

Uniform  acts  have  been  passed  in  some 
states  providing  that  a  will  executed  outside 
a  state  is  good  in  a  state  if  valid  in  the  state 
of  its  execution  (Colorado,  Kansas,  Louisi- 
ana, Massachusetts,  Michigan,  Rhode  island, 
Washington,    Wisconsin,    Alaska  i.. 

Distribution  of  the  personal  property  of  an 
intestate  is  governed  exclusively  by  the  law 
of  his  actual  domicil  at  the  time  of  his 
death;  5  B.  &  C.  438;  Dannelll  v.  Dannelli's 
Adm'r,  4  Bush  (Ky.)  51;  Ennis  v.  Smith,  14 
How.  (U.  s.)  400,  14  L.  Ed.  172;  De  Sobry  v. 
De  Laistre,  2  H.  &  J.  (Md.)  193,  3  Am.  Dec. 
535;  Holmes  v.  Remsen,  4  Johns.  Ch.  (N.  Y.) 
460,  8  Am.  Dec.  581  :  Harvey  v.  Richards,  1 
Mas.  418,  Fed.  Cas:  No.  6,184;  Leach  v.  rills- 
bury,  15  N.  II.  137.  This  includes  the  ascer- 
tainment of  the  person  who  is  to  lake;  Story, 
Confl.   taws  §  481;    2  Yes.  35;    2  Keen  293. 

The  descent  of  real   estate  depends  upon   the 

law  of  the  place  of  the  real  estate;  8  t.  R. 
Ch.  842;  Harvey  v.  Ball,  32  End.  99;  Kerr  v. 
Moon,  9  Wheat,  (U.  S.)  565,  6  L.  Ed.  161  ;  1  1 
Ves.  541;  Grimball  v.  ration.  To  Ala. 
Pratt  v.  Don-las,  38  N.  J.  Eq.  516;  Keegan 
v.  Geraghty,  101  ill.  26.  The  question  wheth- 
er debts  are  to  be  paid  by  the  administrator 
from  the  personalty  or  realty  is  to  be  d 
ed  by  the  law  of  his  domlcil;  9  Mod.  66;  2 
Keen  L,(.r.. 

Insolvents  and  bankrupts.    An  assig 
of  property  for  the  benelit  of  creditors  valid 


by  the  law  of  the  domidl  is  generally  recog- 
a     valid    everywl. 

.  Ch. 
(N.  Y.)    171,  7:1 

Cr.    M.    &    K.    296;      1 
Mass.  | 

5;    Appeal  of  Smith,  104  E*a.  381  ;    Van 
Winkle  v.  Armstrong,  41  N.  J.  S  AtL 

1 19;    in  the  absent  e  of 

the    contrary;     i  I'nk. 

286,    17    Am.    De 
x.  s.  i  r. 

Moreton,  6  Binn.  (i'a.)  353,  6 

•  to  the  injury  of  citizens  of  t! 
eign  state  in   wl 

Easl  131;    Saul  v.  Bia  Creditors,  6  Mart.  N. 
s.    (La.)    596,    16   Am.    Dec   212;     Ml 
m,  6  Binn.  (Pa.)  3<  0,  8  Am.  I 
v.  Saunders,  12  Wheat 
L.  Ed.  606;   Johnson  v.  Pi  Bush  (Ky.) 

149;  Kidder  v.  Tufts,  48  N.  EL  125;  Burk 
v.  M.  claim  1  H.  &  McH.  (Md.)  236;  Moore  v. 
Willett.  35  Barb.  (N.  Y.)  663.  opul- 

sory  assignment  by  force  of  statute  is  n 
extra-territorial  operation;    Holmes  v.  Rem- 

■  Johns.  (N.  V.)  229,  U   Am. 
Milne  v.  Moreton,  6  Binn.  (Pa.)  353,  8  Am. 
Dec.  460;    Blake  v.  Williams.  6  Pick,  (V 
286,  17  Am.  l  »ec  372;    Wood  v.  P 
Ml(  h.  159.     Distribution  of  the  effects  of  in- 
solvent or  bankrupt  debtors  is  to  be  made  ac- 
cording to  the  law  of  the  doinicil.  subj 

e  qualifications;    Story,  Confl.  taws 
§  323,  423o.    See,  generally,  13  Am.  I. 
261;    Whart  Confl.   taws;    Mora 
ship;     Tiffany;      Schouler,     Domes 

ii-t;    For- 
eign Corporation;  Insolvency, 

DOMINANT.     That   to   which   a   servitude 

or  easement  is  duo,  or  for  the  l  enefit  of  which 

■  is.     Distinguished  from  that 

from  which  it  is  due. 

DOMINICUM  (tat.  domain;  domain:  de- 
mesne).  A  lordship.  That  of  which  one  has 
the  lord-hip  or  ownership.  That  which  re- 
mains under  the  lord's  iinined  e  and 
control 

In   this  sense  It  Is  equivalent  to  the  Saxor. 
lands.      Spelman,    Gloss.;      Dlount.      In 

I  hom- 
merely,  the  dominioum  was  in  the  tenant. 

Jn  Domesday  EJOOk  it  meant  the  home  farm 
as  distinguished   from   the  o<  »f  the 

tenants.     Vlnogradoff,  EngL  S 
Century  353. 

Property;  domain;  anything  pertain 
a  lord.     Cowell. 

in  Ecclesiastical  Law.  A  church,  or  any 
other  building  consecrated  to  <;<'d.  Du 
Cange. 

DOMINION.  Ownership  or  right  to  prop- 
erty. 2  Bla.  Com  L  "The  bolder  has  do- 
minion of  the  bill."    8  I 

Sovereignty  or  lordship,  as  the  dominion 
of  the  seas.     Black,  L.  Diet     see  DOMINIUM. 


DOMINIUM 


924 


DOMINUS 


DOMINIUM  (Lat.)-  Perfect  and  complete 
property  or  ownership  in  a  thing. 

Plenum  in  re  dominium,— plena  in  re  potestas. 
This  right  is  composed  of  three  principal  elements: 
The  right  to  use,  the  right  to  enjoy,  and  the  right 
to  dispose  of  the  thing,  to  the  exclusion  of  every 
other  person.  To  use  a  thing,  jus  utendi  tantum, 
consists  in  employing  it  for  the  purposes  for  which 
it  is  fit,  without  destroying  it,  and  which  employ- 
ment can  therefore  be  repeated ;  to  enjoy  a  thing, 
jus  fruendi  tantum,  consists  in  receiving  the  fruits 
which  it  yields,  quidquid  ex  re  nascitur;  to  dispose 
of  a  thing,  jus  abutendi,  is  to  destroy  it,  or  to  trans- 
fer it  to  another.  Thus,  he  who  has  the  use  of  a 
horse  may  ride  him,  or  put  him  in  the  plow  to  culti- 
vate his  own  soil ;  but  he  has  no  right  to  hire  the 
horse  to  another  and  receive  the  fruits  which  he 
may   produce    in   that   way. 

On  the  other  hand,  he  who  has  the  enjoyment  of  a 
thing  is  entitled  to  receive  all  the  profits  or  rev- 
enues  which   may  be   derived  from   it. 

And,  lastly,  he  who  has  the  right  of  disposing  of  a 
thing,  jus  abutendi,  may  sell  it,  or  give  it  away, 
etc.,  subject,  however,  to  the  rights  of  the  usuary  or 
usufructuary,  as  the  case  may  be. 

These  three  elements,  usus,  fructus,  abusus,  when 
united  in  the  same  person,  constitute  the  domini- 
um; but  they  may  be,  and  frequently  are,  separat- 
ed, so  that  the  right  of  disposing  of  a  thing  may  be- 
long to  Primus,  and  the  rights  of  using  and  enjoy- 
ing to  Secundus,  or  the  right  of  enjoying  alone  may 
belong  to  Secundus,  and  the  right  of  using  to  Ter- 
tius.  In  that  case,  Primus  is  always  the  owner  of 
the  thing,  but  he  is  the  naked  owner,  inasmuch  as 
for  a  certain  time  he  is  actually  deprived  of  all  the 
principal  advantages  that  can  be  derived  from  it. 
Secundus,  if  he  has  the  use  and  enjoyment,  jus 
utendi  et  fruendi  simul,  is  called  the  usufructuary, 
ususfructuarius  ;  if  he  has  the  enjoyment  only  jus 
fruendi  tantum,  he  is  the  fructuarius;  and  Tertius, 
who  has  the  right  of  use,  jus  utendi  tantum,  is  call- 
ed the  usuary,— usuarius.  But  this  dismemberment 
of  the  elements  of  the  dominium  Is  essentially  tem- 
porary ;  if  no  shorter  period  has  been  fixed  for  its 
duration,  it  terminates  with  the  life  of  the  usuary, 
fructuary,  or  usufructuary;  for  which  reason  the 
rights  of  use  and  usufruct  are  called  personal  serv- 
itudes. Besides  the  separation  of  the  elements  of  the 
dominium  among  different  persons,  there  may  also 
be  a  jus  in  re,  or  dismemberment,  so  far  as  real  es- 
tates are  concerned,  in  favor  of  other  estates.  Thus, 
a  right  of  way  over  my  land  may  exist  in  favor  of 
your  house  ;  this  right  is  so  completely  attached  to 
the  house  that  it  can  never  be  separated  from  it,  ex- 
cept by  its  entire  extinction.  This  class  of  jura  in 
re  is  called  predial  or  real  servitudes.  To  constitute 
this  servitude,  there  must  be  two  estates,  belonging 
to  different  owners  ;  theso  estates  are  viewed  in  some 
measure  as  juridical  persons,  capable  of  acquiring 
rights  and  incurring  obligations.  The  estate  in  fa- 
vor of  which  the  servitude  exists  is  the  creditor- 
estate;  and  the  estate  by  which  the  servitude  is 
due,  the  debtor-estate.  See  Hunter,  Roman  Law 
231;    Eminent  Domain. 

DOMINIUM  DIRECTUM  (Lat).  Legal 
ownership.  Ownership  as  distinguished 
from  enjoyment. 

DOMINIUM  DIRECTUM  ET  UTILE  (Lat). 
Full  ownership  and  possession  united  in  one 
person. 

DOMINIUM   UTILE  (Lat).     The  beneficial 

ownership.  The  use  of  the  property. 
* 
DOMINUS  (Lat).  The  lord  or  master; 
the  owner.  Ainsworth,  Lat.  Lex.  The  own- 
er or  proprietor  of  a  thing,  as  distinguished 
from  him  who  uses  it  merely.  Calvinus, 
Lex.    A  master  or  principal,  as  distinguished 


from  an  agent  or  attorney.  Story,  Ag.  §  3; 
Ferriere,  Diet 

In  Civil  Law.  A  husband.  A  family.  Vi- 
cat,  Voc.  Jur. 

DOMINUS  LITIS  (Lat).  The  master  of 
suit.  The  client,  as  distinguished  from  an 
attorney. 

And  yet  it  is  said  that,  although  he  who  has  ap- 
pointed an  attorney  is  properly  called  dominus  litis, 
the  attorney  himself,  when  the  cause  has  been 
tried,  becomes  the  dominus  litis.     Vicat. 

DOMINUS  NAVIS.  In  Civil  Law.  The  ab- 
solute owner  of  a  ship.     Wharton. 

DOMIT/E  (Lat).  Tame;  subdued;  not 
wild. 

Applied  to  domestic  animals,  in  which  a 
man  may  have  an  absolute  property.  2  Bla. 
Com.  391. 

DONATARIUS  (L.  Lat).  One  to  whom 
something  is  given.    A  donee. 

DONATIO  (Lat).  A  gift.  A  transfer  of 
the  title  to  property  to  one  who  receives  it 
without  paying  for  it.  Vicat.  The  act  by 
which  the  owner  of  a  thing  voluntarily 
transfers  the  title  and  possession  of  it  from 
himself  to  another  person,  without  any  con- 
sideration. See  Indiana  N.  &  S.  R.  W.  Co.  v. 
City  of  Attica,  56  Ind.  476;  Georgia  Peni- 
tentiary Co.  No.  2  v.  Nelms,  65  Ga.  499,  38 
Am.  Rep.  793. 

A  donation  is  never  perfected  until  it  has 
been  accepted  ;  for  an  acceptance  is  requisite 
to  make  the  donation  complete.  See  Assent; 
Ayl.  Pand.  tit.  9;  Clef  des  Lois  Rom.;  2 
Kent  438;  Penfield  v.  Thayer,  2  E.  D.  Sm. 
(N.  Y.)  305 ;  Ivey's  Adm'r  v.  Owens,  28  Ala. 
N.  S.  641.  In  old  English  law  and  in  the 
modern  law,  in  several  phrases,  the  word  re- 
tains the  extended  sense  it  has  in  the  civil 
law. 

Its  literal  translation,  gift,  has  acquired  in 
real  property  law  a  more  limited  meaning, 
being  applied  to  the  conveyance  of  estates 
tail.  2  Bla.  Com.  316 ;  Littleton  §  59 ;  West, 
Symb.  §  254;  4  Cruise,  Dig.  51.  There  are 
several  kinds  of  donatio:  as,  donatio  simplest 
et  pura  (simple  and  pure  gift  without  com- 
pulsion or  consideration) ;  donatio  aosoluta 
et  larga  (an  absolute  gift);  donatio  condi- 
tionalis  (a  conditional  gift);  donatio  striata 
et  coarctura  (a  restricted  gift,  as,  an  estate 
tail). 

DONATIO  INTER  VIVOS  (Lat  a  gift  be- 
tween living  persons).  A  contract  which 
takes  place  by  the  mutual  consent  of  the 
giver,  who  divests  himself  of  the  thing  giv- 
en in  order  to  transmit  the  title  of  it  to  the 
donee,  gratuitously,  and  the  donee  who  ac- 
cepts and  acquires  the  legal  title  to  it.  See 
Gift;  Donatio  Mortis  Causa. 

DONATIO  MORTIS  CAUSA  (Lat  a  gift  in 
prospect  of  death).  A  gift  made  by  a  person 
in  sickness,  or  other  immediate  peril,  who, 
apprehending  his  death  as  near,  delivers,  or 


DONATIO  MORTIS  CAUSA 


ATIu  MORTIS  CAUSA 


causes  to  be  delivered,  to  another,  the  pos- 
session of  any  personal  goods,  to  keep  as  his 
own  in  case  of  donor's  decease.  2  Bla.  Com. 
514;   Gouiiey  v.  Linsenblgler,  51  Pa.  345. 

The  civil  law  defines  it  to  be  a  gift  under  appre- 
hension of  death:  as,  when  anything  Is  given  upon 
condition  that  if  the  donor  die  the  donee  shall  pos- 
sess it  absolutely,  or  return  it  if  the  donor  should 
survive  or  sould  repent  of  having  made  the  gift,  or 
If  the  donee  should  die  before  the  donor.  Adams  v. 
Nicholas,   1  Miles    (Pa.)  109. 

It  differs  from  a  legacy,  inasmuch  as  It  does  not 
require  proof  in  the  court  of  probate;  2  Stra.  777; 
6ee  1  Bligh,  N.  S.  531 ;  and  no  assent  is  r< 
from  the  executor  to  perfect  the  donee's  title ;  2 
Ves.  120;  1  S.  &  S.  245.  It  differs  from  a  gift  inter 
vivos  because  it  is  ambulatory  and  revocable  dur- 
ing the  donor's  life  because  it  may  be  made  to  the 
wife  of  the  donor,  and  because  it  is  liable  for  his 
debts,  and  it  requires  actual  delivery  ;  Poullain  v. 
Poullain,  79  Ga.  11,  4  S.  E.  81.  This  division  of  gifts 
is  taken  from  the  Roman  law,  as  are  also  the  rules 
by  which  they  are  governed.  2  Kent  439.  See  also 
as  to  these  distinctions  Brett,  L.  Cas.   Mod.   E<\.  33. 

The  donor  need  not  be  in  extremis;  Larra- 
bee  v.  HascaU,  88  Me.  511,  :±4  Atl.  408,  51 
Am.  St.  Rep.  440.  It  has  been  considered  es- 
sential to  the  validity  of  the  gift  that  the 
donor  should  die  of  the  very  malady  from 
which  deatli  was  apprehended  at  the  time 
of  making  the  gift;  Williams  v.  Chamber- 
lain, 165  111.  210,  4G  N.  E.  250;  Conser  v. 
Snowden,  54  Md.  175,  39  Am.  Bep.  368;  but 
the  better  opinion  is  that  while  it  is  not  a 
requisite  that  he  should  die  from  the  very 
disease  or  peril  from  which  he  apprehended 
death,  yet  there  must  be  no  intervening  re- 
covery, and  it  is  essential  that  his  death  en- 
sue as  a  result  of  some  disease  or  peril  ex- 
isting or  impending  at  the  time  the  gift  was 
made;  Peck  v.  Scolield,  186  Mass.  108,  71  N. 
E.  109;  Ridden  v.  Thrall.  125  N.  Y.  E 
N.  E.  627,  11  L.  R.  A.  684,  21  Am.  St.  Rep. 
758.  A  soldier  ordered  to  the  seat  of  war 
is  not  in  such  imminent  peril  as  will  justify 
his  making  a  gift  causa  mortis;  Linsenblgler 
v.  Gourley,  56  Pa.  166,  94  Am.  Dec.  51 ;  but 
such  gifts  have  been  held  valid  where  the 
donor  never  returned  alive,  hut  fell  hi  battle 
or  died  in  camp:  Virgin  v.  Gaither,  42  111. 
39;  Gass  v.  Simpson,  4  Coldw.  (Tenn.)  2SS. 
A  gift  made  in  contemplation  of  suicide  is 
utterly  void  as  agalnsl  public  policy;  Dur- 
yea  v.  Harvey,  188  Mass.  429,  67   X.  I 

A  delivery  of  more  than  was  Intended  to 
be  given  cannot  overrule  the  donor's  Inten- 
tion, and  the  donee  can  take  only  as  much  as 
was  intended  to  he  given;  Crippen  v.  Adams, 
132  Mich.  81,  92  N.  w.  496.  The  delivery 
need  not  be  made  to  the  donee  personally, 
but  may  he  made  to  another  as  his  agent  or 
trustee,  and  that  without  his  knowled 
the  time  of  making  the  gift :  Sheedy  v.  Roach, 
124  Mass.  472,  26  Am.  Rep.  680;  Williams 
v.  Guile.  117  N.  V.  843,  22  N.  B,  1071,  8  L. 
R.  A.  "'6t>.  Where  actual  manual  tradition 
cannot  be  made,  either  from  their  nature  or 
their  situation  at  the  time,  in  such  eases  the 
delivery  may  be  constructive,  although  in  all 
cases  it  must  be  as  nearly  perfect  and  com- 
plete as  the  nature  of  the  property  and  at- 


tendant   drcum  md    conditions   wil' 

permit;    Newman   v. 

8.    B.  hnieally. 

ery  by  the 

S.  B.  721  :  An  mon  v.  ' 
191,  26  s.   W.  826;   but 
Blight  practical    lm] 
gift  is  beneficial  to 
will  be  presumed  ;  I  >evol  \  ■  I  V 
24  N.  B.  246,  7  L.  K.  A. 
nine,  71    N.   II.   585,  53  Atl.   1026. 

To  constitute  a  good  donatio  mortit 
first,  the  thing  given  mu 
erty  ;    Wei.  3  Binn.  (1 

Wells  v.  Tucker,  3  Binn.  (Pa.)  370;   2 

Jen.  431 ;    3  Madd.   184 :    haul:    i 
Michener  v.   Dale,  23  Pa.  59;    2   I 
<;ii':    White  b.  (N.  Y 

3  P.  Wms.  356;   certiflcati  k ;    Walsh 

v.  Sexton,  55  Barb.  (N.  v.i  251;  a  ; 
life  insurance;  1  B.  ft  8.  109;  Gourley  v. 
Linsenblgler,  51  Pa.  345;  and  a  check  of- 
fered for  payment  during  the  life  of  the 
donor ;  i  Bro.  C.  C.  286 ;  will  be 
ered:  but  a  check  not  bo  presented,  which 
had  m  •  Into  the  hands  of  a  bona  flde 

holder,    is    revoked    by    the    death    of   the  de- 
cedent ;    L.  R.  6  Bq.  198;    Burke  v.  B 
27   I. a.  Ann.  465,  21   Am.   Rep.  . 
v.  Society,  31  Ohio  St.  457,  27  A:. 
Matter  of  Smith  '      D  (N.  I.)  I 

v.  Crowley,  59  Cal.  665;    ulityr,  as  t"  a 
given  abroad  ;    L.  R.  5  Ch!   Div. 
Taylor's   Estate,    154   Ta.    1-::.   25    Atl.    1061, 
IS  L.  K.  A.  855.    A  check  to  a  wl  • 
ing  that  it  was  to  enable  her  to  buy  mourning, 
was  held  under  peculiar  circumstances  a  val- 
id donatio  mortis  causa;  l  P.  Wms.  ill.    a 
note  not  negotiable,  or  if  negotiable,  not  in- 

:.  but  delivered,  passes  by  BU<  h  a  dona- 
tion; 1  Dan.  Neg.  Inst  g  24;  Tiedm.  Com. 
Pap.  252;   Chase  v.  B 

418;    but  in   Bradley  v.   Hunt,  5  Gill  ft  J. 
(Md.  i   54,  23  Am.  Dec  .".'.'7.  this  is  limited  to 
bank  notes  and  notes  payable  to  hear. 
certificate  of  deposit  which  Is  delivered  to  a 

person    for   the   086  of  a   third  party,  though 
not  indorsed.  Is  a  valid  gift  |  Conner  v. 
11  Colo.   183,   17  Pae   77::;     Reed   v.  Barnum. 
:;<;  111.  App.  525;  contra,  Dunn  v.   I 

S.  W.  1 1  39;  see  Daniel  \ 
Cal.  346,  80  Pac  575,    a  chi    : 
subject  of  a  donatio  i  -  paid 

in    the    doner's    lifetime:    death    revokes    the 
hank's   authority   to   pay;    -1    1 
Burke  v.  Bishop,  27   La.  Ann.   465,  '-'l   Am 
Rep.  567;    Second  Nat   Bank  of  Deti 
Williams.   13  Mich.  282.      But   in  BUCfa   i 
check  has  been  i 

tary    I  haraeter  ;    .".   Curt. 

1   P,   Wn  9.    Ill  [supra).     Where  a  man  made 

a  gift  of  his  check  to  his  son  to  be  collected 

after  his  death,  and   the  hank,   knowil 
drawer    was    dead,    paid    the    check,    it    must 
pay  the  amount  of  the  check  to  ti. 


DONATIO  MORTIS  CAUSA 


92G 


DONATIO  MORTIS  CAUSA 


representatives ;  Pullen  v.  Bank,  138  Cal. 
169,  66  Pac.  740,  71  Pac.  83,  94  Am.  St.  Rep. 
19.  A  cheek  or  note  or  other  negotiable  in- 
strument of  a  person  other  than  the  donor 
may  be  the  subject  of  such  gift;  L.  R.  15 
Ch.  D.  651 ;  L.  R.  6  Eq.  198 ;  Burke  v.  Bish- 
op, 27  La.  Ann.  465,  21  Am.  Rep.  567. 
Though  unaccepted  by  the  bank,  a  check  for 
the  entire  amount  of  the  drawer's  balance 
delivered  to  a  person  as  a  gift  of  the  mon- 
ey, operates  as  an  assignment  of  the  fund 
and  is  valid  as  a  gift  mortis  causa;  Varley 
v.  Sims.  100  Minn.  331,  111  N.  W.  269,  8  L. 
R.  A.  (N.  S.)  S28,  117  Am.  St.  Rep.  694,  10 
Ann.  Cas.  473.  There  must  be  a  parting  with 
the  dominion  over  the  subject  matter  of  the 
gift,  with  a  present  design  that  the  title 
shall  pass  out  of  the  donor  and  to  the  donee ; 
Liebe  v.  Battmann,  33  Or.  241,  54  Pac.  179, 
72  Am.  St.  Rep.  705. 

A  husband  cannot  gratuitously  dispose  of  his  per- 
sonalty in  this  way  to  defeat  the  widow's  statutory 
rights  therein;  Hatcher,  v.  Buford,  60  Ark.  169,  29 
S  W  641  27  L.  R.  A.  507  ;  and  the  same  is  true  as 
to  the  wife  ;    Baker  v.  Smith,  66  N.  H.  422,  23  Atl.  82. 

Title  to  the  property  passes  to  the  donee  upon  its 
delivery  to  him,  but  remains  subject  to  defeasance 
while  the  donor  lives;  Chase  v.  Redding,  13  Gray 
(Mass.)  418;  Nicholas  v.  Adams,  2  Whart.  (Pa.)  17; 
Basket  v.  Hassell,  107  U.  S.,  602,  2  Sup.  Ct.  415,  27 
L.  Ed.  500.  A  gift  of  this  nature  cannot  avail 
against  creditors  and  the  donee  takes  subject  to  the 
right  of  personal  representative  to  reclaim  it  if 
necessary  for  the  payment  of  deceased's  debts ; 
Dunn  v.  Bank,  109  Mo.  90*  18  S.  W.  1139. 

The  delivery  of  a  savings-bank  book  passes 
the  money  in  bank ;  Hill  v.  Stevenson,  63  Me. 
364,  18  Am.  Rep.  231 ;  Sheedy  v.  Roach,  124 
Mass.  412,  26  Am.  Rep.  680 ;  Pierce  v.  Bank, 
129  Mass.  425,  37  Am.  Rep.  371 ;  Camp's  Ap- 
peal, 36  Conn.  88,  4  Am.  Rep.  39;  Tilling- 
hast  v.  Wheaton,  8  R.  I.  536,  5  Am.  Rep.  621, 
94  Am.  Dec.  126;  contra,  Walsh's  Appeal,  122 
Pa.  177,  15  Atl.  470,  9  Am.  St.  Rep.  83,  1  L. 
R.  A.  535 ;  see  Thomas'  Adm'r  v.  Lewis,  89 
Va.  1,  15  S.  E.  389,  18  L.  R.  A.  170,  37  Am. 
St.  Rep.  848.  A  banker's  deposit  note  is  a 
good  subject  of  gift;  44  Ch.  Div.  76;  but 
where  the  bank  book  is  already  in  the  hands 
of  the  donee,  a  statement  by  the  donor  that 
his  wife  may  have  it  is  not  sufficient;  Drew 
v.  Hagerty,  81  Me,  231,  17  Atl.  63,  3  L.  R.  A. 
230,  10  Am.  St.  Rep.  255.  See  36  Cent.  Law 
J.  354 ;  31  Am.  Law  Reg.  681 ;  34  id.  85,  for 
discussions  and  annotations  on  this  subject. 
A  mortgage  is  a  good  gift;  5  Madd.  351;  1 
Bligh,  N.  S.  497;  a  policy  of  insurance;  1 
Best  &  Sm.  109;  33  Beav.  619;  a  receipt  for 
money;  4  De  G.  &  Sm.  517;  bouds ;  3  Atk. 
214;  1  Bligh,  N.  S.  497;  bank  notes;  2  Eden 
125 ;  Sel.  Ch.  Cas.  14 ;  3  P.  Wms.  356 ;  2  Bro. 
C.  C.  612. 

A  promissory  note  of  the  sick  man  made 
in  his  last  illness  is  not  a  valid  donation;  5 
B.  &  C.  501;  Parish  v.  Stone,  14  Pick. 
(Mass.)  204,  25  Am.  Dec.  378;  Craig  v. 
Craig,  3  Barb.  Ch.  (N.  Y.)  70;  Smith  v.  Kitt- 
ridge.  21  Vt.  238;  Helfenstein's  Estate,  77 
Pa.  328,  18  Am.  Rep.  449.     See  Flint  v.  Pat- 


tee,  33  N.  H.  520,  66  Am.  Dec.  742 ;  Brown 
v.  Brown,  18  Conn.  410,  46  Am.  Dec.  328; 
Waring  Adm'r  v.  Edmonds,  11  Md.  424 ;  Ses- 
sions v.  Moseley,  4  Cush.  (Mass.)  87;  Graves 
v.  Safford,  41  111.  App.  659 ;  6  Harv.  L.  Rev. 
36.  In  England,  bills  delivered  on  a  death- 
bed but  without  consideration,  are  valid 
donations;  27  Beav.  303;  but  a  gift  of  the 
donor's  own  cheque,  if  not  payable  until  aft- 
er his  death,  is  not  valid;  27  Ch.  D.  631.  See 
also  5  Ch.  D.  730 ;  4  D.  M.  &  G.  249.  As  to 
a  gift  of  money,  see  Corle  v.  Monkhouse,  50 
N.  J.   Eq.  537,  25  Atl.   157. 

Second,  the  gift  must  be  made  by  the 
donor  in  peril  of  death,  and  to  take  effect 
only  in  case  the  giver  dies;  Bisph.  Eq.  70; 
Wells  v.  Tucker,  3  Binn.  (Pa.)  370;  1  Bligh, 
N.  S.  530;  Blanchard  v.  Sheldon,  43  Vt.  513; 
Grymes  v.  Hone,  49  N.  Y.  17,  10  Am.  Rep. 
313;  Kirk  v.  McCusker,  3  Misc.  277,  22  N. 
Y.  Supp.  780;  a  gift  made  in  apprehension  of 
death  from  a  surgical  operation  is  valid ;  Rid- 
den v.  Thrall,  125  N.  Y.  572.  There  is  quite 
a  conflict  of  authority  as  to  whether  a  gift 
by  a  soldier  about  to  join  the  army  is  a  valid 
donatio  causa  mortis,  with  the  weight  of  au- 
thority against  sustaining  them.  They  have 
been  upheld,  it  may  possibly  be  considered,  in 
Virgin  v.  Gaither,  42  111.  39 ;  but  this  case  is 
explained  in  Travis  on  Sales  as  a  gift  inter 
vivos  on  condition;  a  case  cited  as  upholding 
them,  Baker  v.  Williams,  34  Ind.  547,  is  over- 
ruled if  it  does  so  hold ;  Smith  v.  Dorsey,  38 
Ind.  451,  10  Am.  Rep.  118 ;  which  holds  them 
invalid,  as  do  also  Gourley  v.  Linsenbigler,  51 
Pa.  345;  Irish  v.  Nutting,  47  Barb.  (N.  Y.) 
370;  Dexheimer  v.  Gautier,  5  Rob.  (N.  Y.) 
216  (Barbour,  J.,  dissenting).  See  Gass  v. 
Simpson,  4  Cold.  (Tenn.)  288. 

Such  a  gift  is  only  good  when  made  in 
relation  to  the  death  of  the  person  by  ill- 
ness affecting  him  at  the  time;  2  Ves.  Jr. 
121;  but  if  it  appear  that  the  donation  was 
made  when  the  donor  was  ill  and  only  a 
few  days  or  weeks  before  his  death,  it  will 
be  presumed  that  it  was  made  in  the  last 
illness  and  in  contemplation  of  death ;  1 
Wms.  Ex.  845;  Dole  v.  Lincoln,  31  Me.  422. 
When  a  gift  was  made  in  contemplation 
of  death,  but  the  donor  so  far  recovered  as 
to  be  able  to  attend  to  his  business,  and  then 
died  of  the  same  disease,  held  not  a  good 
donatio;  Weston  v.  Hight,  17  Me.  287,  35 
Am.  Dec.  250.  That  the  donor  lived  fourteen 
days;  Nicholas  v.  Adams,  2  Whart.  (Pa.) 
17;  three  days;  Wells  v.  Tucker,  3  Binn. 
(Pa.)  370;  Goulding  v.  Horbury,  85  Me.  227, 
27  Atl.  127,  35  Am.  St.  Rep.  357 ;  six  hours ; 
Michener  v.  Dale,  23  Pa.  63;  after  making 
the  gift,  does  not  invalidate  it.  There  seems 
to  be  no  rule  limiting  the  time  within  which 
the  gift  must  be  made  before  death;  Grymes 
v.  Hone,  49  N.  Y.  17,  10  Am.  Rep.  313. 

Third,  there  must  be  an  actual  delivery 
of  the  subject  to  or  for  the  donee,  in  cases 
where  such  delivery  can  be  made;  Penning- 
ton v.  Gittings,  2  Gill  &  J.   (Md.)  208;    Mil- 


DONATIO  MORTIS  CAUSA 


927 


DONATIO  MOI'lI 


ler  v.  Jeffress,  4  Gratt.  (Va.)  472;  Dole  v. 
Lincoln,  31  Me.  422;  Grynies  v.  Hone.  49  N. 
Y.  17,  10  Am.  Rep.  313;  Cutting  v.  Oilman, 
41  N.  H.  147;  Daniel  v.  Smith,  75  Cal.  548, 
17  Pac.  683;  L.  R.  <;  Eq.  47-1;  Emery  v. 
Clough.  63  x.  n.  r>r,2,  4  Atl.  7:m;,  56  Am.  Rep. 
543;  McCord's  Adm'r  v.  McCord,  77  Mo.  L66, 
46  Am.  Rep.  :>;  Kill  v.  Weaver,  \n  N.  0.  2.  t. 
55  Am.  Rep.  001.  The  delivery  must  be  as 
complete  as  the  nature  of  the  property  will 
admit  of;  Hatch  v.  Atkinson,  56  Me.  324,  '.»; 
Am.  Dec.  464,  where  taking  the  key  of  a 
trunk,  putting  goods  into  the  trunk  and  re- 
turning the  key  to  its  place  at  the  request 
of  the  owner,  who  expressed  a  desire,  in  his 
last  illness,  to  make  the  trunk  and  its  con- 
tents a  donatio  mortis  causa,  was  held  not  to 
be  a  sufficient  delivery. 

Where  one  about  to  commit  suicide  in- 
dorsed a  promissory  note  and  placed  it  in  an 
envelope  directed  to  a  friend  in  the  same 
house  and  then  shot  himself,  held  no  deliv- 
ery; Liebe  v.  Battmann,  :;::  Or.  241,  ."4  Pac. 
179,  72  Am.  St.  Rep.  705.  The  gifl  of  the 
keys  of  a  box  deposited  in  a  vault  of  a  haul: 
containing  bonds,  etc.,  is  a  sufficient  con- 
structive delivery  of  the  contents  of  the  box; 
Thomas'  Adm'r  v.  Lewis,  ,s:i  Va.  1,  15  S.  E. 
389,  18  L.  R.  A.  170,  37  Am.  St.  Rep.  848; 
2  Ves.  Sen.  431;  Prec.  Ch.  300;  [1891]  W.  N. 
201  (where  donor  delivered  the  keys  of  a 
trunk  to  donee,  and  said  the  trunk  and  its 
contents  were  donee's)  ;  Debinson  v.  Em- 
mons, 15S  Mass.  592,  33  N.  E.  706;  but  see 
Gouldins  v.  Horbury,  85  Me.  2:27,  27  Atl.  127, 
35  Am.  St.  Rep.  357.  An  intention  to  give  is 
sufficiently  manifested  from  the  fact  that  a 
person  in  extremis  hands  a  package  of  bonds 
to  another  saying,  "These  bonds  are  for 
you;"  Vandor  v.  Roach,  73  Cal.  014,  15  Tae. 
354.  Delivery  can  be  made  to  a  third  person 
for  the  use  of  a  donee;  Wells  v.  Tucker,  .". 
Binn.  (Pa.)  370;  Bloomer  v.  Bloomer,  2 
Bradf.  Surr.  (N.  Y.)  340;  Southerland  v. 
Southerlaud's  Adm'r,  5  Bush  (Ky.)  591  ;  but 
not  if  the  third  party  is  the  agent  of  the 
giver;  2  Coll.  350.  The  acceptance  is  pre- 
sumed, unless  the  contrary  appear;  In  re 
Dunlap's  Estate,  94  Mich.  11,  53  N.  W.  788. 

To  make  such  a  gift  valid  there  must  he 
a  renunciation  by  the  donor  and  an  acquisi- 
tion by  the  donee,  of  all  interest  and  title 
to  the  property  intended  to  be  given;  Wet- 
more  v.  Brooks,  IS  X.  Y.  Supp.  852. 

To  constitute  such  a  gift,  the  subject  must 
be  delivered  either  to  the  donee  or  to  some 
person  for  bis  use  and  benefit,  and  the  donor 
must  part  with  all  dominion  over  the  prop- 
erty, and  the  title  must  vest  in  the  donee, 
subject  to  the  right  of  the  donor  at  any  time 
to  revoke  the  gift;  Daniel  v.  Smith,  75  Cal. 
548,  17  Pac.  683. 

It  is  an  unsettled  question  whether  such 
kind  of  gift  appearing  in  writing,  without 
delivery  of  the  subject,  can  be  supported; 
2  Ves.  120;  Smith  v.  Downey,  38  N.  C.  268; 
but  Lord  Hardwicke  expressed   the  opinion 


that  it  could  be;   2  Ves.  s  1  id.  314; 

Contra,    L  WffiJ     Ex.  8  i5.      A D  I 

v.  Thompson,    12  -'.     By   t: 

and  civil  la  ausa  might  be 

made  in  writing;    Dig. 

2  Ves.  Sen,  440;    l  id.  ! 

Upon  the  recovery  of  the  donor  and  his 
consequent  ability  to  comply  with  the 
ute.  the  dispensation  from  Its 

and  the  gift  mortis  causa,  tl 
icl  when  made, 

No  expr<  ssion  to  this  effe  I  Is  i 
son  v.  Jones,  .';  I  >eL  Ch.  63  :    '■ 
v.  Lewis,  89  Va.  I,  15  S.   I 
848. 

also  thus  I.  It 

must   be  In  view  of  d<  Dor's  death.     2.  With 
express  or  Implied  intention  that  it  shall 

ffect    by    reason    of   ex:         >  irder. 

3.  Delivery   by   the   donor   t<>   the   i 
some  one  on  his  behalf;    Brett,  L.  Cas.  Mod. 
Eq.  33;   but  this  Is  nol  so  satisfactory  as  the 
well-settled  enumeration  above  given. 

A  donatio  mortis  require 

the   executor's   assent  ;    2   Ves.    Jr.    120;     is 

ble    by    the    donor    during    his 
Bloomer  v.  Bloomer,  2  Bradf.  Burr.  (N.  Y.) 
339  :    Parker  v.  Marston,  -J7  M 
Luther,   3  Woodb.   &    M.   519,    F<  i 
8,196;   Jones  v.  B  :  N.  n.   139;    I 

v.   Doran,  99  CaL  311,  3  -  »;    by   re- 

covery:   :;  Macn.  a.-  6.  664 ;    '  651  ; 

or  resumption  of  possession;  2  Ves,  Sen. 
but  not  by  a  subsequent  will;    Tree.  Chanc. 
300;    contra,  Jayne  v.  Murphy.  31   lib 
28;     but    may    be   satisfied    by   a   subsequent 
legacy;   l  Ves.  Sen.  314.    And  see  sin: 
Whitehead,  36  N.  C.  130.     it  n  ay  I  e  of  any 
amount  of  property;   Meach  v.  Meach,  24  Vt 
591.     It  is   liable  for  the   testator's   debts; 
Dunn   v.  Bank,  109   Mo.   90,    18    B.   W.    1139; 
Emery  v.  Clough,  63  N.  II.  552,  i  Atl.  7 
Am.  Rep.  543;    Basket  v.  Hassell,  107  D.  S. 
6t  2,  2  sup.  Ct  415,  27  L.  Ed.  500;  a  gift  pro- 
riding  for  the  payment  of  certain  bills 
a  division  of  the  remaining  property  is  valid: 
Loucks    v.   Johnson.    7<>    Hun    565,    24    N.    V. 
Supp.  267. 

Lft  mortis  causa   is  none  the  less  valid 
because  it  embraces  the  entire  personal  es- 
tate of  the  donor,  and   the  testin: 
credible  witness  is  sufficient  to  establish  such 
a  gift  :    Thomas'  Adm'r  v.  Lewis    89  Va.  1,  15 
s.    B.  389,    18  1..    K.   A.    17".  37  Am.   St 
848;    Meach  v.  Meach,  24   vt.  591;    bi 
Beadley  v.  Kirby,  18   Pa.  326  :    Mi  i   ball  v. 
Berry,  13  Allen  (Mass.)  43;  and  a  gift  to 
panied   by    the   condition   that   part   tl 
is  to  be  applied  to  the  payment  of  tl 
nor's  debts  Is  good;    Wetmore  v. 
X.  V.  sup.  852, 

a  thorough  discussion  of  this  subject. 

see  Robson  v.  Jones,  3  Del.  Ch.  51;  36  Am.  L. 

547,  289;   note  to  Ward  v.  Turner,   Wh. 

&  T.  L.  «'•  Eq. :  36  Cent.  Law  .7.  354;  32  id.  27. 

DONATIO   PROPTER   NUPTIAS   (Lit. 

gift    on    account    of    marriage),      in    Roman 


DONATIO   PROPTER  NUPTIAS 


928 


DOOR 


Law.  A  gift  made  by  the  husband  as  a  se- 
curity for  the  marriage  portion.  The  effect 
of  the  act  of  making  such  a  gift  was  differ- 
ent according  to  the  relation  of  the  parties 
at  the  time.  Yicat,  Voc,  Jur.  Called,  also,  a 
mutual  gift. 

The  name  was  originally  applied  to  a  gift 
made  before  marriage,  and  was  theu  called 
a  donatio  ante  nuptias;  but  in  process  of 
time  it  was  allowed  to  be  made  after  mar- 
riage as  well,  and  was  then  called  a  dona- 
tio propter  nuptias. 

DONATION.     See  Don  Alio. 

DONATIVE.     See  Advowson. 

DONEE.  One  to  whom  a  gift  Is  made  or 
a  bequest  given;  one  who  is  invested  with 
a  power  of  appointment:  he  is  sometimes 
called  an  appointee.    4  Kent  316. 

DON  IS,  STATUTE  DE.  See  De  Donis, 
the  Statute. 

DONOR.  One  who  makes  a  gift.  One 
who  gives  lands  in  tail.     Termes  de  la  Ley. 

DONUM    (Lat).     A  gift. 

The  difference  between  donum  and  munus  is  said 
to  be  that  donum  is  more  general,  while  munus  is 
specific.  Munus  is  said  to  mean  donum  with  a 
cause  for  the  giving  (though  not  a  legal  considera- 
tion), as  on  account  of  marriage,  etc.  Donum  is 
said  to  be  that  which  is  given  from  no  necessity  of 
law  or  duty,  but  from  free  will,  "from  the  absence 
of  which,  if  they  are  not  given,  no  blame  arises ; 
but  if  they  are  given,  praise  is  due."  Vicat,  Voc. 
Jur. ;     Calvinus,   Lex. 

DOOM.     Judgment. 

DOOM  OF  THE  ASSESSOR.  See  Assess- 
ment. 

DOOR.  The  place  of  usual  entrance  into 
a  house,  or  into  a  room  in  the  house. 

To  authorize  the  breach  of  an  outer  door 
in  order  to  serve  process,  the  process  must 
be  of  a  criminal  nature;  and  even  then  a 
demand  of  admittance  must  first  have  been 
refused;  5  Co.  94;  State  v.  Smith,  1  N.  H. 
346;  Bell  v.  Clapp,  10  Johns.  (N.  Y.)  263, 
6  Am.  Dec  339;  Kelsy  v.  Wright,  1  Root 
(Conn.)  83;  State  v.  Shaw,  1  Root  (Conn.) 
134;  Banks  v.  Farwell,  21  Pick.  (Mass.)  156; 
Com.  v.  Reynolds,  120  Mass.  190,  21  Am.  Rep. 
510;  Cabill  v.  People,  106  111.  621;  Hawkins 
v.  Com.,  14  B.  Monr.  (Ky.)  395,  61  Am.  Dec. 
147.  The  outer  door  may  also  be  broken 
open  for  the  purpose  of  executing  a  writ  of 
habere  facias;  5^Co.  93;  Bac.  Abr.  Sheriff 
(N3). 

An  outer  door  cannot,  in  general,  be 
broken  for  the  purpose  of  serving  civil  pro- 
cess; Oy stead  v.  Shed,  13  Mass.  520,  7  Am. 
Dec.  172;  Snydacker  v.  Brosse,  51  111.  357, 
99  Am.  Dec.  551 ;  Hooker  v.  Smith,  19  Vt. 
151,  47  Am.  Dec.  G79 ;  1  M.  &  W.  336 ;  Curtis 
v.  Hubbard,  4  Hill  (N.  Y.)  437,  40  Am.  Dec. 
292;  but  after  the  defendant  has  been  ar- 
rested, and  he  takes  refuge  in  his  own  house, 
the  officer  may  justify  breaking  an  outer 
door  to  take  him;  Fost.  320;  1  Rolle  138; 
Cro,  Jac.   555;    Allen  v.  Martin,   10  Wend. 


(N.  Y.)  300,  25  Am.  Dec.  564.  When  once 
an  officer  is  in  the  house,  he  may  break  open 
an  inner  door  to  make  an  arrest;  Fitch  v. 
Loveland,  Kirb.  (Conn.)  386;  Hubbard  v. 
Mace,  17  Johns.  (N.  Y.)  127;  13  M.  &  W.  52; 
Pretty  man  v.  Dean,  2  Harr.  (Del.)  494.  See 
1  Toullier,  n.  214,  p.  88;  L.  R.  2  Q.  B.  593; 
or  break  the  outer  door  to  get  out;  7  A.  & 
E.  826. 

DORMANT.  Sleeping;  silent;  not  known; 
not  acting.  One  whose  name  and  transac- 
tions as  a  partner  are  professedly  concealed 
from  the  world ;  Mitchell  v.  Dall,  2  H.  &  G. 
(Md.)  159;  Kelley  v.  Hurlburt,  5  Cow.  (N. 
Y.)  534;  Pitts  v.  Waugh,  4  Mass.  424;  Na- 
tional Bank  of  Salem  v.  Thomas,  47  N.  Y. 
15.  Coll.  Partn.  §  4.  The  term  is  applied, 
also,  to  titles,  rights,  judgments,  and  exe- 
cutions. As  to  the  latter,  see  Storm  v. 
Woods,  11  Johns.  (N.  Y.)  110;  Kimball  v. 
Munger,  2  Hill  (N.  Y.)  364. 

DORMANT  JUDGMENT.  One  that  has  be- 
come inoperative  so  far  as  the  right  to  issue 
execution  thereon  is  concerned.  General  Elec- 
tric Co.  v.  Hurd,  171  Fed.  984.  See  Judg- 
ment. 

DOS  (Lat).  In  Roman  Law.  That  which 
is  received  by  or  promised  to  the  husband 
from  the  wife,  or  any  one  else  by  her  influ- 
ence, for  sustaining  the  burdens  of  matri- 
mony. There  are  three  classes  of  dos.  Dos 
profectitia  is  that  which  is  given  by  the  fa- 
ther or  any  male  relative  from  his  property 
or  by  his  act;  dos  adventitia  is  that  which 
is  given  by  any  other  person  or  from  the 
property  of  the  wife  herself;  dos  receptitia 
is  where  there  is  a  stipulation  connected 
with  the  gift  relating  to  the  death  of  the 
wife.  Vicat;  Calvinus,  Lex.;  Du  Cange;  1 
Washb.  R.  P.  147. 

In  English  Law.  The  portion  bestowed  up- 
on a  wife  at  her  marriage  by  her  husband. 
1  Washb.  R.  P.  147;    1  Cruise,  Dig.  152. 

Dower  generally.  The  portion  which  a 
widow  has  in  the  estate  of  her  husband  aft- 
er his  death.     Park,  Dower. 

This  use  of  the  word  in  the  English  law,  though, 
as  Spelman  shows,  not  strictly  correct,  has  still  the 
authority  of  Tacitus  (de  Mor.  Germ.  18)  for  its  use. 
And  if  the  general  meaning  of  marriage  portion  is 
given  to  it,  it  is  strictly  as  applicable  to  a  gift  from 
the  husband  to  the  wife  as  to  one  from  the  wife  to 
the  husband.  It  occurs  often,  in  the  phrase  dos  de 
dote  peti  non  debet  (dower  should  not  be  sought  of 
dower).    1  Washb.  R.  P.  209. 

DOS  RATIONABILIS  (Lat).  A  reason- 
able marriage  portion.  A  reasonable  part 
of  her  husband's  estate,  to  which  every  wid- 
ow is  entitled,  of  lands  of  which  her  husband 
may  have  endowed  her  on  the  day  of  mar- 
riage. Co.  Litt  336.  Dower,  at  common 
law.    2  Bla.  Com.  134. 

DOSSIER  (Fr.).  A  brief;  a  bundle  of 
papers. 

DOT  (a  French  word  adopted  in  Louisi- 
ana). The  fortune,  portion,  or  dowry  which 
a  woman  brings  to  her  husband  by  the  mar- 


DOT 


929 


DOUBLE  EAGLE 


riage.      Buisson   v.   Thompson,   7    Mart.    La. 
(N.  S.)  4G0. 

DOTAGE.     That  feehleness  of  the  mental 
faculties   which   proceeds   from   old   ag< 
diminution  or  decay  of  that  intellectual  pow- 
er which  was  once  possessed.     1  Bland,  Ch. 
380.    See  Dementia. 

DOTAL  PROPERTY.  By  the  civil  law 
in  Louisiana,  by  this  term  is  understood  that 
property  which  the  wife  brings  to  the  ln:s- 
band  to  assist  him  in  bearing  the  ex] 
of  the  marriage  establishment  Extradotal 
property,  otherwise  called  paraphernal  prop- 
erty, is  that  which  forms  no  part  of  the  dow- 
ry.    La.  Civ.   Code,  art. 

The  effect  of  marriage  under  the  civil  law 
as  found  in  the  digest  was  that  the  wife 
brought  her  dos  and  the  husband  his  anti- 
dos  into  the  marriage.  In  all  other  prop- 
erty belonging  to  them  they  each  retained 
the  rights  of  owners  in  their  separate  ca- 
pacities uncontrolled  by  their  relation  of 
husband  and  wife;  Ballinger,  Community 
Property  §  2.    See  Community. 

DOTATION.  In  French  Law.  The  act  by 
which  the  founder  of  a  hospital,  or  other 
charity,  endows  it  with  property  to  fulfil  its 
destination. 

DOTE.  In  Spanish  Law.  The  property 
and  effects  which  a  woman  brings  to  her  hus- 
band for  the  purpose  of  aiding  him  with  the 
rents  and  revenues  thereof  to  support  the  ex- 
penses of  the  marriage.  Las  Pallidas,  4.  11. 
1.  "Dos,"  says  Cujas,  "est  pecan ia  marito, 
nuptiarwm  oausa,  data  vel  promissa."  The 
dower  of  the  wife  is  inalienable,  except  in 
certain  specified  cases,  for  which  see  Escri- 
che,  Die.  Raz.  Dote. 

As  an  English  verb  it  has  been  defined  to 
be  delirious,  silly  or  insane.  Gates  v.  Mere- 
dith, 7  Ind.  441. 

DOTE  ASSIGNANDA.  In  English  Law.  A 
writ  which  lay  in  favor  of  a  widow,  when  it 
was  found  by  office  that  the  king's  tenant 
was  seized  of  tenements  in  fee  or  fee-tail 
at  the  time  of  his  death,  and  that  he  held 
of  the  king  in  chief.  Such  widows  were 
called  king's  widows. 

DOTE  UNDE  NIHIL  HABET.  A  writ 
which  lies  for  a  widow  to  whom  no  dower 
has  been  assigned.  3  Bla.  Com.  182.  By  23 
and  24  Vict.  e.  12G,  an  ordinary  action  com- 
menced by  writ  of  summons  lias  taken  its 
place;  but  it  remains  in  force  in  the  United 
States,  and  under  the  designation  of  dower 
unde  nihil  habct,  is  file  form  in  common  Q8€ 
for  the  recovery  of  dower  at  law;  l  Washb. 
R.  P.  290 ;    4  Kent  63. 

DOUBLE    AVAIL    OF     MARRIAGE.      See 

Duplex  Valor  Map.itami. 

DOUBLE  COMPLAINT.  See  Duplex 
Querela. 

DOUBLE  COSTS.    See  Costs. 
Bouv.— 59 


DOUBLE  EAGLE.  A  gold  coin  of  the 
United  States,  of  the  value  of  twenty  dol- 
lars or  units. 

It  Is  60  called  because  It  la  twice  the  value  of  the 
eagle,    and,   consequently,    weighs   five   hundred    and 
sixteen    grains   of   standard    fineness,    namely,   nine 
hundred   thousandths  fine.     It  is   a  legal  lender  for 
dollars    to   any    amount.  .rch    3 

1849,   6  Stat.    L.   397.     U.   S.    Rev.   Stat.    H  3511,  3614. 
The  double  eagle  is  in  value  the  largest  colt, 
in   the  United  States.     The  first  issue  was  u. 
1849.     See   act   of   Feb.    I  Stat,    L.    p.    426 ; 

Eagle. 

DOUBLE    INSURANCE.     Wh.  re  .livers  in- 
surances are  made  upon  I 
the  same  subje  t   the  same  risks  it 

favor  of  the  same  assured,  in  proportions  ex- 
ceeding  the  value.     1  I'hill.  ins.  §§  350, 

I  E,    sub-title,    Double    In-sur- 

A  like  excess  in  one  policy  is  over-insurance.  If 
the  valuation  of  the  whole  interest  in  one  policy  Is 
double  that  in  another,  and  half  of  the  value  is  in- 
sured in  each  policy  according  to  the  valuation  In 
that  policy,  it  is  not  a  double  insurance  ;  its  being 
so  or  not  depends  on  the  aggregate  of  the  propor- 
tions, one-quarter,  one-half,  etc.,  insured  by  each 
policy,  not  upon  the  aggregate  of  the  amounts. 

Where  the  insurance  is  on  the  interests 
of  different  persons,  though  on  the  same 
goods,  it  is  not  double  insurance;  Wells  v. 
Ins.  Co.,  0  S.  &  R.  (Pa.)  107  :  nor  la  it  where 
canier  and  shipper  each  insure;  Royster  v. 
Roanoke  X.  &  B.  S.  B.  Co.,  26  i  ■  I.  192. 

In  case  of  double  insurance,  the  assured  may  sue 
upon   all    the   policies  and    is   entitled   to   judgment 
upon  all,  but  he  is  entitled  to  but  one 
therefore,    if  during  the  pendency   of  suits  on  sev- 
eral policies  concerning  the  same  risk  and  interest, 
the  loss  is  paid  in  full  by  one  company,  the  .. 
against  the  others  must  fail,  and  the  insurer  paying 
the   loss   has  a    remedy   against   the  other    In 
for  a  proportionate  share  of  the  loss.     If  there  be 
any  doubt  as  to  whether  the  policies  cover  the  same 
property  or  interest,  evidence  is  admissible  to  show 
the  fact;     Wip^in  v.   Ins.    Co.,  18  Pick.   (Ma 
29  Am.    Dec.  57ti ;    ./Etna  Fire  Ins.   Co.    v.   Tyler,   16 
Wend.    (X.    Y.)    386,    30   Am.  ..    Ins. 

Co.,   39   Barb.    (N.    Y.)    302;     Peoria   Marine   &    Fire 
Ins.  Co.  v.  Lewis,  IS  111.  553;     Sloat  v.   Ins.  Co.,  49 
Pa.    14.    88   Am.    Dec.    477 ;     Merrick    v.    Ins.    Co.,   54 
U  ;     May,    Ins.    §   13. 

The  question  of  double  insurance  do. 
generally  arise  in  life  insurance,  as  there  is 
no  fixed  value  to  the  life,  and  the  person  in 
each  case  is  to  pay  a  fixed  sum  without  re- 
gard to  other  insurance.  But  where  the 
Insurable  Interest;  has  an  ascertainable  value 
the  question    may   ai  here  two   poli- 

cies a  re  taken  out  in  differenl  offices,  by  a 
creditor,  on  the  life  of  a  debtor,  and  for  the 
same   debt     Then   only  the   \  le  in- 

terest can  be  recovered  and  the  amount  re- 
covered on  the  first  policy  is  to  be  deducted 
from  the  amount  payable  on  the  second; 
May.  Ins.  $    II" 

DOUBLE  PLEA.  The  alleging,  for  one 
single  purpose,  two  or  more  distinct  grounds 
:  one  of  them  would  be  as  ef- 
fectual in  law  as  both  or  all.     See  DuPi  I 

By  the  statute  4  Anne,  c.  16,  in  Knsland, 
and  by  similar  statutes  in  most  if  not  all  of 
the  states,  any  defendant  in  any   suit,  and 


DOUBLE  PLEA 


930 


DOUBLE  WASTE 


any  plaintiff  in  replevin  in  any  court  of  rec- 
ord, may  plead  as  many  several  matters  as 
may  be  necessary  for  a  defence,  with  leave  of 
court.  This  statute  allows  double  pleading; 
but  each  plea  must  be  single,  as  at  common 
law;  Lawes,  PL  131;  1  Chit.  PL  512;  Andr. 
Steph.  PI.  320 ;  and  the  statute  does  not  ex- 
tend to  the  subsequent  pleadings;  Com.  Dig. 
Pleader  (E  2)  ;  Story,  PL  §  72;  Gould,  PL 
c.  8;  Doctrina  Plac.  222.  In  criminal  cases 
a  defendant  cannot  plead  a  special  plea  in 
addition  to  the  general  issue;  7  Cox,  Cr.  Cas. 
85. 

DOUBLE  POSSIBILITY.  A  possibility  up- 
on a  possibility.  2  Bla.  Com.  170.  See  Con- 
tingent Remainder. 

DOUBLE  RENT.  In  English  Law.  Rent 
payable  by  a  tenant  who  continues  in  pos- 
session after  the  time  for  which  he  has  given 
notice  to  quit,  until  the  time  of  his  quitting 
possession.  Stat.  11  Geo.  II.  c.  19 ;  Fawcett, 
L.  &  T.  304.  The  provisions  of  this  statute 
have  been  re-enacted  in  New  York,  and  some 
other  states,  though  not  generally  adopted  in 
this  country. 

DOUBLE  TAX.     See  Tax. 

DOUBLE    OR    TREBLE    DAMAGES.      See 

Measure  of  Damages. 

DOUBLE  USE.  A  term  used  in  patent  law 
to  indicate  that  a  later  device  is  merely  a 
new  application  of  an  older  device,  not  in- 
volving the  exercise  of  the  inventive  faculty. 

In  construing  letters  patent  for  new  ap- 
plications of  old  devices,  if  the  new  use  be 
so  nearly  analogous  to  the  former  one  that 
it  would  occur  to  a  person  of  ordinary  me- 
chanical skill,  it  is  only  a  case  of  double 
use;  but  if  the  relations  between  them  are 
remote,  and  especially  if  the  use  of  the  old 
device  produce  a  new  result,  it  may  involve 
an  exercise  of  the  inventive  faculty — much 
depending  upon  the  nature  of  the  changes 
required  to  adapt  the  device  to  its  new  use; 
Potts  v.  Creager,  155  U.  €.  597,  15  Sup.  Ct. 
194,  39  L.  Ed.  275.     See  Patent. 

DOUBLE  VOUCHER.  A  voucher  which 
occurs  when  the  person  first  vouched  to  war- 
ranty comes  in  and  vouches  over  a  third 
person.  See  a  precedent,  2  Bla.  Com.  App. 
V.  p.  xvii. ;  Voucher. 

The  necessity  for  double  voucher  arises 
when  the  tenant  in  tail  is  not  the  tenant  in 
the  writ,  but  is  tenant  by  warranty ;  that  is, 
where  he  is  vouched,  and  comes  in  and  con- 
fesses the  warranty.  Generally  speaking,  to 
accomplish  this  result  a  previous  conveyance 
is  necessary,  by  the  tenant  in  tail,  to  a  third 
person,  in  order  to  make  such  third  person 
tenant  to  a  writ  of  entry.  Pres.  Conv.  125, 
126. 

DOUBLE  WASTE.  When  a  tenant  bound 
to  repair  suffers  a  house  to  be  wasted,  and 
then    unlawfully   fells    timber   to   repair   it, 


he  is  said  to  commit  double  waste.    Co.  Litt. 
53.     See  Waste. 

DOUBT.  The  uncertainty  which  exists  in 
relation  to  a  fact,  a  proposition,  or  other 
thing ;  an  equipoise  of  the  mind  arising  from 
an  equality  of  contrary  reasons.  Ayliffe, 
Pand.  121. 

Some  rules,  not  ,  always  infallible,  have 
been  adopted  in  doubtful  cases,  in  order  to 
arrive  at  the  truth.  1.  In  civil  cases,  the 
doubt  ought  to  operate  against  him  who,  hav- 
ing it  in  his  power  to  prove  facts  to  remove 
the  doubt,  has  neglected  to  do  so.  In  cases 
of  fraud,  when  there  is  a  doubt,  the  presump- 
tion of  innocence  ought  usually  to  remove  it. 
2.  In  criminal  cases,  whenever  a  reasonable 
doubt  exists  as  to  the  guilt  of  the  accused, 
that  doubt  ought  to  operate  in  his  favor.  In 
such  cases,  particularly  when  the  liberty, 
honor,  or  life  of  an  individual  is  at  stake, 
the  evidence  to  convict  ought  to  be  clear 
and  devoid  of  all  reasonable  doubt. 

The  term  reasonable  doubt  is  often  used, 
but  not  easily  defined.  Failure  to  explain 
reasonable  doubt  in  a  charge  is  not  error; 
Thigpen  v.  State,  11  Ga.  App.  846,  76  S.  E. 
596.  The  words  require  no  definition ;  Buch- 
anan v.  State,  11  Ga.  App.  756,  76  S.  E.  73. 
It  is  a  better  practice  not  to  define  it ; 
Holmes  v.  State  (Tex.)  150  S.  W.  926 ;  State 
v.  Reed,  62  Me.  129.  "It  is  not  mere  possible 
doubt ;  because  everything  relating  to  human 
affairs,  and  depending  on  moral  evidence,  is 
open  to  some  possible  or  imaginary  doubt. 
It  is  that  state  of  the  case  which,  after  the 
entire  comparison  and  consideration  of  all 
the  evidence,  leaves  the  minds  of  jurors  in 
such  a  condition  that  they  cannot  say  they 
feel  an  abiding  conviction,  to  a  moral  cer- 
tainty, of  the  truth  of  the  charge.  The 
burden  of  proof  is  upon  the  prosecutor.  All 
the  presumptions  of  law  independent  of  evi- 
dence are  in  favor  of  innocence;  and  every 
person  is  presumed  to  be  innocent  until  he 
is  proved  guilty.  If  upon  such  proof  there 
is  reasonable  doubt  remaining,  the  accused 
is  entitled  to  the  benefit  of  it  by  an  acquit- 
tal. For  it  is  not  sufficient  to  establish  a 
probability,  though  a  strong  one  arising  from 
the  doctrine  of  chances,  that  the  fact  charged 
is  more  likely  to  be  true  than  the  contrary ; 
but  the  evidence  must  establish  the  truth 
of  the  fact  to  a  reasonable  and  moral  cer- 
tainty; a  certainty  that  convinces  and  di- 
rects the  understanding  and  satisfies  the 
reason  and  judgment  of  those  who  are  bound 
to  act  conscientiously  upon  it.  This  we  take 
to  be  proof  beyond  reasonable  doubt ;  because 
if  the  law,  which  mostly  depends  upon  consid- 
erations of  a  moral  nature,  should  go  further 
than  this,  and  require  absolute  certainty,  it 
would  exclude  circumstantial  evidence  al- 
together." Per  Shaw,  C.  J.,  in  Com.  v.  Webster, 
5  Cush.  (Mass.)  320,  52  Am.  Dec.  711 ;  Schmidt 
v.  Ins.  Co.,  1  Gray  (Mass.)  534;  Bethell  v. 
Moore,  19  N.  C.  311 ;  State  v.  Goldsborough, 


DOUBT 


931 


D  >UBT 


Houst.  Cr.  Rep.  (Del.)  316.  In  approving 
the  opinion  of  Shaw,  C.  J.,  the  court  in  Peo- 
ple v.  Wreden,  5!)  Cal.  395,'says:  "There  can 
be  no  'reasonable  doubt'  of  a  fact  after  it 
has  been  clearly  established  by  satisfactory 
proof."  No  man  should  be  deprived  of  life 
under  the  form  of  law  unless  the  jury  can 
say  upon  their  conscience  that  the  evidence 
is  sufficient  to  show  beyond  a  reasonable 
douht  the  existence  of  every  fact  necessary 
i(»  constitute  the  crime  charged;  Davis  v.  U. 
S.,  1G0  U.  S.  409,  1G  Sup.  Ct.  353,  40  L.  Ed. 
499. 

Reasonable  doubt  is  the  result  of  the 
proof,  not  the  proof  itself;  whereas  the  pre- 
sumption  of  innocence  is  one  of  the  instru- 
ments of  proof  going  to  bring  about  the  proof 
from  which  reasonable  doubt  arises ;  thus 
one  is  a  cause  and  the  other  an  effect.  To 
say  that  one  is  the  equivalent  of  the  other 
is  therefore  to  say  that  legal  evidence  can 
be  excluded  from  the  jury,  and  that  such 
exclusion  may  be  cured  by  instructing  them 
correctly  in  regard  to  the  method  by  which 
they  are  required  to  reach  their  conclusions 
upon  the  proof  actually  before  them;  Coffin 
v.  U.  S.,  ICiG  U.  S.  432,  15  Sup.  Ct.  394,  39 
L.  Ed.  481.  It  must  be  an  actual,  substan- 
tial doubt,  arising  from  the  evidence  or  want 
of  evidence  in  the  case;  Langford  v.  State, 
32  Neb.  782.  49  N.  W.  766. 

If  the  evidence  produced  in  a  criminal 
action  be  of  such  a  convincing  character 
that  the  jurors  would  unhesitatingly  he  gov- 
erned by  it  in  the  weighty  and  important 
matters  of  life,  they  may  be  said  to  have 
no  reasonable  doubt  respecting  the  guilt  or 
innocence  of  the  accused,  notwithstanding 
the  uncertainty  which  attends  all  human 
evidence.  Therefore,  a  charge  to  the  jury 
that  if  after  au  impartial  comparison  and 
consideration  of  all  the  evidence,  they  can 
truthfully  say  that  they  have  an  abiding 
conviction  of  the  defendant's  guilt,  such  as 
they  would  be  willing  to  act  upon  in  the 
more  weighty  and  important  matters  relating 
to  their  own  affairs,  they  have  no  reason- 
able doubt,  is  not  erroneous;  Hopt  v.  Utah, 
120  U.  S.  431,  7  Sup.  Ct.  614,  30  L.  Ed.  708. 

Proof  "beyond  a  reasonable  doubt"  is  not 
beyond  all  possible  or  Imaginary  doubt,  but 
such  proof  as  precludes  every  reasonable 
hypothesis  except  that  which  it  tends  to  sup- 
port. It  is  proof  "to  a  moral  certainty,"  as 
distinguished  from  an  absolute  certainty.  As 
applied  to  a  judicial  trial  for  crime,  the 
two  phrases  are  synonymous  and  equivalent; 
nnd  each  signifies  such  proof  as  satisfies  the 
judgment  and  conscienees  of  the  jury,  as 
reasonable  men,  and  applying  their  reason  to 
the  evidence  before  them,  that  the  crime 
charged  has  been  committed  by  the  defend- 
ant, and  so  satisfies  them  as  to  Wave  no 
other  reasonable  conclusion  possible;  Com. 
V.  Costley,  IIS  Ma^s.  24.  It  must  be  founded 
on  a  consideration  of  all  the  circumstances 
end  evidence,  and  not  on  mere  conjecture  or 


speculation ;  Kennedy  v.  State,  107  Ind.  144, 
0  N.  E.  .-lor,,  :,7  Am.  Rep.  99;  and  must  not 
be  a  mere  mistaking  of  the  imagination  or 
misplaced  sympathy;  State  v.  Murphy,  6 
Ala.  B45;  but  natural  and  substantial,  not 
forced  or  fanciful;  State  v.  Bodekee,  34  la. 
520 ;  such  an  honest  uncertainty  i 
the  minds  of  a  candid,  Impartial  and  d 
jury  as  fairly  strikes  the  i  mind 

and  clouds  the  judgment;  Com.  v.  Drui 
Pa.  9.    It  must  not  be 
speculative  or  possible  doubt,  but  a  r. 

Ubstantial   doubt,   remaining  after   the 
consideration    of   all   the   evidence;    State    v. 
Dzzo,  G  Pennew.  (Del.)  212.  65  AtL  775. 
subject   is  discussed   in   an   address  by   -f.    S. 
Burger,  before  the  State  Bar 

:  11  Am.  Lawy.  440;  and  the  history 
of  the  doctrine  I  :is  well  as  the  dif- 

flculty   and   danger   of   trying  to   define   it, 
though  the  doctrine  itself  is  strongly   0 

e  shield  of  innocence  and  the  champion 
of   liberty."     It   is   said   to   have   been 
used  in  the  treason  trials  in  Dublin  in 

A   much   quoted   and   much  criticized  defi- 
nition is  that  of  Dillon,  J.,   in   St 

p,    is    [a.   437,  I    In    P  »Un    v. 

11  Neb.  540,  16  X.  W.  898.    Oti 
tempts  to   define  reasona'  ire  State 

v.    llayden.    15    la.    17;    State   v.    Nelson,    11 
Xev.  :::;i ;   t  F.  &  Tin.  383 :  D.  S.  v.  Ja< 
29  Fed.  ."".•::   state  v.  Kearley,  2G  Kan.  77, 
per  Brewer,  J.;  People  v.  Finley,  38   Mich. 
482;    Lane   v.   state,  41  Tex.   Cr.   R.  560,  55 
S.  W.  831;  State  v.  Swain.  68  Mo.  605.    The 
difficulty  of  a  satisfactory  definition  is  dis- 
;   in   57  Am.   L.    Reg.   419,   where  C.  J. 
Shaw's    definition    is   criticized    and    that    in 
Com.  v.  Costley,  118  Mass.  1.   supra,   U 
gested  as  better.     And  in  Hopt   v.  Utah,  120 
U.  S.  430,  7  Sup.  Ct.  614,  30   L.   Ed.    T 
was  approved  as  contrasted  with  0.  J.  Shaw's 
definition.    The  whole  subject  was  there  con- 
sidered  and  the   necessity   was   stated   of  al- 
lowing the  trial  judge  considerable  latitude 
in   the    way   of  explanation. 
In    the    Tichborne    Case    I  burn 

1  the  jury:  "It  is  the  business  of  the 
prosecution  to  bring  home  guilt  to  the  ac- 
cused to  the  satisfaction  of  the  jury.  But 
the  doubt  of  which  1  led  to 

aeflt  must  be  the  doubt  that  a  rational 
— that  a  sensible — man  may  fairly  enter- 
tain, not  the  doubt  of  a  \;  ;  mind 
that    has    not    the    mora! 

but   shelters    itself   in    vain    scepticism."      14 
Ilarv.  I..  Rev.  -7. 

An  Instruction  that  "reasonable  doubt  is  a 
doubt   you   can  give  ii   reason   foi 
neous;  Abbott  v.  Territory,  20  OkL  111 

L79,  16  I..  R.  A.  (N.  S.)  260,  129  Am.  St. 
318;  Pet  Ine  v.  New  Mexico,  201  Fed. 
489,  119  C.  C  A.  58L     It  is  said  that  to  re- 
quire an  affirmative  reason  for  a   reasonable 
doubt  of  guilt  places  upon  the  int  the 

burden   of   furnishing   to  every  juror   a    rea- 
son why  he  is  not  satisfied  as  to  guilt,  with 


DOUBT 


932 


DOWER 


the  certainty  which  the  law  requires;  also, 
that  such  au  instruction  casts  on  the  defend- 
ant the  burden  of  furnishing  reasons  for  not 
finding  him  guilty,  whereas  it  is  on  the  pros- 
ecution to  make  out  a  case  excluding  all  rea- 
sonable doubt;  State  v.  Cohen,  108  la.  208, 
78  N.  W.  857,  75  Am.  St.  Rep.  213.  So  in 
Carr  v.  State,  23  Neb.  749,  37  N.  W.  630; 
Darden  v.  State,  73  Ark.  315,  84  S.  W.  507. 
In  State  v.  Sailer,  38  Minn.  438,  38  N.  W. 
355,  it  was  said  that  there  is  a  serious  ob- 
jection to  requiring  a  juror  to  be  able  to 
express  in  words  the  ground  of  his  doubt, 
because  he  might  well  have  a  reasonable 
doubt  and  yet  find  it  difficult  to  give  a  rea- 
son for  it. 

But  a  contrary  view  is  held  in  Butler  v. 
State,  102  Wis.  364,  78  N.  W.  590 :  "A  doubt 
cannot  be  reasonable  unless  there  is  a  rea- 
son for  it,  and  if  such  reason  exists,  it  can 
be  given."  To  the  same  effect:  People  v. 
Guidici,  100  N.  Y.  503,  3  N.  E.  493 ;  State  v. 
Rounds,  76  Me.  123.  In  State  v.  Jefferson, 
43  La.  Ann.  995,  10  South.  199,  it  was  held 
to  be  a  "serious,  sensible  doubt  such  as  you 
could  give  a  good  reason  for."  The  doubt 
ought  not  to  be  a  capricious  one,  but  a 
substantial  doubt,  which  the  jury  could  give 
a  reason  for;  Marshall  v.  U.  S.,  197  Fed. 
511,  117  C.  C.  A.  65. 

In  Alabama  there  are  numerous  and  con- 
flicting cases. 

There  are  also  cases  which,  though  criti- 
cizing the  rule  that  requires  the  jury  to  have 
a  reason  for  a  doubt,  have  held  that  its  ap- 
plication in  a  charge  is  not  a  reversible  er- 
ror, if  it  be  part  of  a  charge  defining  the 
difference  between  a  reasonable  and  a  vague 
doubt;  Thibert  v.  Supreme  Lodge,  78  Minn. 
450,  81  N.  W.  220,  47  L.  R.  A.  136,  79  Am.  St. 
Rep.  412;  Klyce  v.  State,  78  Miss.  450,  28 
South.  827;  People  v.  Stubenvoll,  62  Mich. 
329,  28  N.  W.  8S3. 

The  cases  are  collected  in  16  L.  R.  A.  (N. 
S.)  260,  note. 

DOVE.     See  Animal. 

DOWAGER.  A  widow  endowed;  one  who 
has  a  jointure. 

In  England,  this  is  a  title  or  addition 
given  to  the  widow  of  a  prince,  duke,  earl, 
or  other  nobleman,  to  distinguish  her  from 
the  wife  of  the  heir,  who  has  the  right  to 
bear  the  title ;  1  Bla.  Com.  224. 

DOWER  (from  Fr.  doner,  to  endow).  The 
provision  which  the  law  makes  for  a  widow 
out  of  the  lands  or  tenements  of  her  hus- 
band, for  her  support  and  the  nurture  of 
her  children.  Co.  Litt.  30  o;  2  Bla.  Com. 
130;  4  Kent  35;  Washb.  R.  P.  146. 

There  were  five  species  of  dower  in  Eng- 
land (Littleton  §  51): 

1.  Bower  ad  ostium  ecclesice,  where  a  man 
of  full  age,  on.  coming  to  the  church-door  to 
be  married,  endowed  his  wife  of  a  certain 
portion  of  his  lands. 

2.  Dower  ex  assensu  patris,  which  differed 


from  dower  ad  ostium  ecclesiw  only  in  being 
made  out  of  the  lands  of  the  husband's  fa- 
ther and  with  his  consent. 

3.  Dower  by  common  laio,  where  the  wid- 
ow was  entitled  during  her  life  to  a  third 
part  of  all  the  lands  and  tenements  of  which 
her  husband  was  seised  in  law  or  in  fact  of 
an  inheritable  estate,  at  any  time  during  the 
coverture,  and  which  any  issue  she  might 
have  had  might  by  possibility  have  inherited. 

4.  Dower  by  custom,  where  a  widow  be- 
came entitled  to  a  specified  portion  of  her 
husband's  lands  in  consequence  of  some  lo- 
cal or  particular  custom. 

5.  Dower  de  la  plus  telle  (de  la  pluis 
beale),  where  the  widow  on  suing  the  guard- 
ian in  chivalry  for  dower,  was  required  by 
him  to  endow  herself  of  the  fairest  portion 
of  any  lands  she  might  hold  as  guardian  in 
socage,  and  thus  release  from  dower  the  lands 
of  her  husband  held  in  chivalry.  This  was 
abolished  along  with  the  military  tenures, 
of  which  it  was  a  consequence;  2  Bla.  Com. 
132,  n. 

Of  these,  the  first  and  second  were  created 
by  the  act  of  the  parties,  the  third  and 
fourth  by  the  law.  The  two  classes  represent 
the  old  order  and  the  new.  3  Holdsw.  Hist. 
E.  L.  157.  In  later  days  the  former  class 
was  superseded  by  the  latter  class  or  by 
jointures. 

By  the  Dower  Act  in  England  (1S33)  the 
widow  is  entitled  to  dower  out  of  equitable 
estates  as  well  as  legal,  but  only  out  of  those 
estates  to  which  the  husband  is  beneficially 
entitled  at  his,  death. 

Dower  in  the  United  States,  although  reg- 
ulated by  statutes  differing  from  each  other 
in  many  respects,  conforms  substantially  to 
that  at  the  common  law;  1  Washb.  R.  P. 
149 ;  see  Schoul.  Hus.  &  W.  455. 

Where  a  statute  provided  that  no  estate 
in  dower  be  allotted  to  the  wife  on  the  death 
of  her  husband,  it  took  away  a  wife's  in- 
choate right  of  dower  in  lands  previously 
alienated  by  her  husband  without  joining 
her  in  the  deed;  Richards  v.  Land  Co.,  47 
Fed.  854;  the  inchoate  right  of  the  wife  is 
not  such  a  vested  right  or  interest  as  cannot 
be  taken  away  by  legislative  action;  Rich- 
ards v.  Land  Co.,  54  Fed.  209,  4  C.  C.  A.  290. 

Of  what  estates  the  wife  is  dowable.  Her 
right  to  dower  is  always  determined  by  the 
laws  of  the  place  where  the  property  is  sit- 
uate; Duncan  v.  Dick,  Walker  (Miss.)  281; 
O'Ferrall  v.  Simplot,  4  la.  381;  Lamar  v. 
Scott,  3  Strobh.   (S.  C.)  562. 

She  is  entitled  to  one-third  of  all  lands, 
tenements,  or  hereditaments,  corporeal  and 
incorporeal,  of  which  her  husband  may  have 
been  seized  during  the  coverture,  in  fee  or 
in  tail ;  2  Bla.  Com.  131 ;  Gorhain  v.  Daniels, 
23  Vt.  611. 

She  was  not  dowable  of  a  term  for  years, 
however  long;  Park,  Dow.  47;  Spangler  v. 
Stanler,  1  Md.  Ch.  Dec.  36. 

The  inheritance   must  be  an  entire  one, 


DOWER 


933 


.  ER 


and  one  of  which  the  husband  may  have  cor- 
poreal seisin  or  the  right  of  Immediate  cor- 
poreal seisin;  Plowd.  506;  Caruthers  v.  Wil- 
son, 1   Sin.  ft  M.    (.Miss,  i    527. 

I  »o\ver  does  not  attach  in  an  estate  held  in 
joint  tenancy;  but  the  widow  of  the  survivor 
has  dower;  Co.  Litt.  8  4.~>;  Mayburry  v. 
Brien,  15  Pet  (U.  S.)  21,  10  L.  Ed.  646. 
But  where  the  principle  of  survivorship  is 
abolished,  this  disability  does  not  exisl  ;  Da- 
vis v.  Logan,  9  Dana  (Ky.)  185;  Peed  v. 
Kennedy,  2  Strobh.    (S.  C.)    '',7. 

An  estate  in  common  is  subject  to  dower; 
Wilkinson  v.  Parish,  3  Paige,  Ch.  (N.  Y. ) 
653;  Totten  v.  Stuyvesant,  3  Edw.  Ch.  (N. 
Y.i  500;  Pynchon  v.  Lester,  6  Gray  (Mass.) 
314;  Clift  v.  Clift,  87  Tenn.  17,  9  S.  W.  198, 
360;  Parrish  v.  Parrish,  88  Va.  529,  14  S.  E. 
325;  Chew  v.  ("hew,  l  Md.  172.  But  the  dow- 
er in  land  owned  by  the  husband  in  common 
with  others  is  divested  by  partition  thereof 
in  a  suit  to  which  the  husband  is  a  party, 
though  the  wife  is  not  joined:  Ilolley  v. 
Glover,  30  S.  C.  404,  15  S.  E.  G05,  16  L.  R. 
A.  77G,  31  Am.  St.  Rep.  883.  See  2  Can.  L. 
T.  15. 

In  the  case  of  an  exchange  of  lands,  the 
widow  may  claim  dower  in  either,  but  not 
in  both ;  Co.  Litt  31  o ;  if  the  interests  are 
unequal,  then   in   both ;   Wilcox   v.   Randall, 

7  Barb.  (N.  Y.)  633;  Mosher  v.  Mosher,  32 
Me.  412;  Cass  v.  Thompson,  1  N.  II.  65,  8 
Am.  Dec.  36. 

She  is  entitled  to  dower  in  mines  belong- 
ing to  her  husband,  if  opened  by  him  in 
his  lifetime  on  his   own   or  another's  land; 

1  Taunt.  402;  Coates  v.  Cheever,  1  Cow. 
(N.  Y.)  460;  Lenfers  v.  Henke.  73  111.  405, 
24  Am.  Rep.  263;  Moore  v.  Rollins,  4".  Me. 
493.  See  In  re  Seager's  Estate,  92  Mich. 
186,  52  N.  W.  299.  where  she  was  held  to 
be  entitled  whether  the  mines  were  open- 
ed before  or  after  her  husband's  death; 
Black  v.  Min.  Co.,  49  Fed.  549;  id.  52  Fed. 
859,  3  C.  C.  A.  312.  See  also  Seager  v.  Mc- 
Cabe.  92  Mich.  186,  52  N.  W.  299,  16  L.  R. 
A.  247.  But  in  Marshall  v.  Mellon,  179  Pa. 
371,  36  Atl.  201,  35  L.  R.  A.  816,  57  Am.  St. 
Rep.  601  she  was  held  to  have  no  right  to 
operate  for  oil  or  gas,  where  such  operations 
had  not  commenced  during  the  lifetime  of 
her  husband.  Where  a  statute  gave  the  sur- 
viving husband  or  wife  a  one-third  Interesl 
in  the  real  estate  of  the  other,  the  life  ten- 
ant is  entitled  only  to  the  income  upon  one- 
third  of  the  oil  produced;  Swayne  v.  Oil  Co., 
98  Tex.  597,  SO  S.  W.  740,  69   L.   R,   A.  986, 

8  Ann.  Cas.  1117. 

She  had  the  right  of  dower  in  various 
species  of  Incorporeal  hereditaments:  as, 
rights   of   Ashing,   and   rents;   Co\   Litt.   32a; 

2  Bla.  Com.  132;  Chase's  Case,  1  Bland,  Ch. 
(Md.">  227,  17  Am.  Dec.  277;  but  the  rents 
should  be  estates  of  inheritance;  2  Cruise. 
Dig.  291. 

In  most  of  the  states  she  is  dowable  of 
wild  lands;   Chapman  v.   Schroeder,    10  Ga. 


321;  Macaulay's  Ex*r  v.  Land  Co.,  2  Rob. 
(Va.)  507;  Hickman  v.  Irvine's  Heirs,  3  Dana 
(Ky. i    123  ;    Allen   v.    M  418; 

Pike    v.    Underbill's    Adm'r,  124; 

Brown  v.  Richards,  17  N.  J.  royner 

v.  Speed,  68  N.  I     -  Sunn  v.  Kaler, 

1 1   Me.    !"'■•:  Johnson  \ 
:>  Am.  Dec.  35. 

She  has  no  right  of  dower  li 
claim;    Well's    Guardian    v.  6    Mu. 

478;    Davenport    v.    Farrar,     I  (111.) 

31  I. 

At  law  there  was  nothing  to  prevent  her 
from  having  dower  In  land-  v. hi  b  ber  hus- 
band held  as  trustee.  But,  as  she  would 
take  it  subject  to  the  trust,  courts  of  equity 
were  in  the  habit  of  restraining  her  from 
claiming  her  dower  in  lands  which  she 
would  he  compelled  to  bold  entirely  to  an- 
other's use.  till  it  was  finally  establl 
both  in  England  and  the  Dnil  .  that 

she   is  not  entitled   in  such   case  to  d 
Firestone  V.  Firestone,  2  Ohio  St  416;  Bart- 
lett  v.  Gouge,  5  B.  Mour.   (Ky.)    162;   Park, 
Dow.  105. 

At  common  law  she  was  not  dowable  of 
the  estate  of  a  cestui  que  trust;  2  Sch.  & 
L.  387;  4  Kent 43;  Lenox  v.  Notrebe,  Hempst 
251,  Fed.  Caa  No.  B,246c.  See  Watsoi 
tate,  139  Pa.  461,  22  AtL  638.  But  by  the 
Dower  Act  this  restriction  was  removed  in 
England;  3  &  4  Will.  IV.  c.  105;  l  Spence, 
Eq.  Jur.  501.  The  common  law  rule  that  a 
widow  could  only  have  dower  in  the  legal 
estates  of  the  husband  has  been  either  ex- 
pressly  or  impliedly  changed  by  statute  in 
the  majority  of  states,  and  she  now  has  a 
right  of  dower  in  his  equitable  estat 
well,  but  only  in  those  of  which  he  died  seis- 
ed; In  re  Ransom,  17  Fed.  233;  Morse  v. 
ThorselL  7S  ill.  604;  and  if  the  husband  has 
aliened  an  equitable  estate,  although  his 
wife  may  not  have  consented,  the  dower  is 
defeated;  Taylor  v.  Kearn,  68  111.  341;  Mil- 
ler v.  Stump,  3  Gill  (Md.)  304.  In  Delaware 
a  widow  Is  not  dowable  out  of  an  equitable 
estate  of  her  deceased  husband,  except  in 
intestate  lands;  Cornog  V.  Cornog,  3  Del. 
Ch.  407,  but  the  law  upon  this  subject  is 
not  uniform;  Stelle  v.  Can-oil.  i_ 
S.i  201,  9  L.  Ed,  Id-"!", ;  Hamlin  v.  Hamlin. 
19  Me.  141;  Shoemaker  v.  Walker.  2  S.  ft 
R.  (Pa.)  554;  Rowton  v.  Rowton,  1  Hen.  ft 
M.  (Va.)  92.  in  Borne  states,  dower  in  equi- 
table estates  is  given  by  Btatutes;  while  in 
others  the  severe  common-law"  rule  has  not 
been  strictly  followed  by  the  courts;  llawley 
v.  James,  5  Paige,  Ch.  i  N.  V.  318;  I.. 
v.  Morton,  6  Dana  (Ky.)  471;  Lewis  ?. 
James.  8  Ilumphr.  (Tenn.)  537;  The: 
v.  Thompson,  46  X.  C.  430;  Miller  v.  Stump, 

3  Gill   (Md.)  304. 

A  mortgagee's  wife,  although  her  husband 
has  the  technical  seisin,  had  no  dowable  in- 
terest till  the  estate   becomes  irredeemable; 

4  Dane,    Abr.    G71 ;    4    Kent    42;    Foster    v. 


DOWER 


934 


DOWER 


Dwinel,  49  Me.  53,  2  Ves.  Jr.  631;  Waller  v. 
Waller's  Adm'r,  33  Gratt.  (Va.)   83. 

A  widow  was  not  dowable  of  an  equity 
of  redemption  under  the  common  law ;  In  re 
Ransom,  17  Fed.  331;  L.  R.  6  Ch.  D.  218; 
Cox  v.  Garst,  105  111.  342;  Glenn  v.  Clark, 
53  Md.  607 ;  Pickett  v.  Buckner,  45  Miss.  243 ; 
Hopkinson  v.  Dumas,  42  N.  H.  296;  Eddy  v. 
Moulton,  13  R.  I.  105;  nor  did  the  English 
courts  admit  the  doctrine  until  the  statute 
of  1833 ;  Ld.  Ch.  Redesdale  in  2  S.  &  L.  3S8 ; 
but,  as  was  said  by  Chancellor  Bates  in 
Cornog  v.  Cornog,  3  Del.  Ch.  407,  the  Ameri- 
can courts,  being  free  to  carry  the  equitable 
view  of  mortgaged  estates  to  its  logical  re- 
sults, have  uniformly  allowed  dower  in  an 
equity  of  redemption ;  Mayburry  v.  Brien,  15 
Pet.  (U.  S.)  38,  10  L.  Ed.  646;  Simonton  v. 
Gray,  34  Me.  50;  Newton  v.  Cook,  4  Gray 
(Mass.)  46;  Titus  v.  Neilson,  5  Johns.  Ch. 
(N.  Y.)  452;  Taylor  v.  McCrackin,  2  Blackf. 
(Ind.)  262;  Heth  v.  Cocke,  1  Rand.  (Va.) 
344;  Fish  v.  Fish,  1  Conn.  559;  Hastings  v. 
Stevens,  29  N.  H.  564;  Hinchman  v.  Stiles, 
9  N.  J.  Eq.  361 ;  but  after  the  surplus  pro- 
ceeds of  sale  have  been  applied  by  the  sher- 
iff to  a  judgment  against  the  husband,  it  is 
too  late  to  assert  the  widow's  claim  to  equi- 
table dower;  Gemmill  v.  Richardson,  4  Del. 
Ch.  599.  .See  on  this  subject  11  Can.  L.  T. 
281. 

In  reference  to  her  husband's  contracts 
for  the  purchase  of  lands,  the  rule  seems  to 
be,  in  those  states  where  dower  is  allowed 
in  equitable  estates,  that  her  right  attaches 
to  her  husband's  interest  in  the  contract,  if 
at  his  death  he  was  in  a  condition  to  enforce 
specific  performance;  Hawley  v.  James,  5 
Paige,  Ch.  (N.  Y.)  318;  Smith  v.  Addleman, 
5  Blackf.  (Ind.)  406;  Rowton  v.  Rowton,  1 
Hen.  &  M.  (Va.)  92;  Robinson  v.  Miller,  1 
B.  Monr.  (Ky.)  93;  Reed  v.  Whitney,  7  Gray 
(Mass.)  533;  Owen  v.  Robbins,  19  111.  545; 
Thompson  v.  Thompson,  46  N.  C.  430.  If  his 
interest  has  been  assigned  before  his  death, 
or  forfeited,  or  taken  on  execution,  her  dow- 
er-right is  defeated ;  Pritts  v.  Ritchey,  29  Pa. 
71;  Secrest  v.  McKenna,  6  Rich.  Eq.  (S.  C.) 
72;  Dean's  Heirs  v.  Michell's  Heirs,  4  J.  J. 
Marsh.  (Ky.)  451;  Heed  v.  Ford,  16  B.  Monr. 
(,Ky.)  114;  Rowton  v.  Rowton,  1  Hen.  &  M. 
(Va.)   91. 

She  is  entitled  to  dower  in  lands  actually 
purchased  by  her  husband  and  upon  which 
the  vendor  retains  a  lien  for  the  unpaid  pur- 
chase-money, subject  to  that  lien;  McClure 
v.  Harris,  12  B.  Monr.  (Ky.)  261;  Crane  v. 
Palmer,  8  Blackf.  Ind.  120 ;  Ellicott  v.  Welch, 
2  Bland.  Ch.  (Md.)  242;  Williams  v.  Woods, 
1  Humphr.  (Tenn.)  408;  or  upon  which  her 
husband  has  given  a  mortgage  to  secure  the 
purchase-money,  subject  to  that  mortgage; 
Henagan  v.  Harllee,  10  Rich.  Eq.  (S.  C.) 
285.  See  Seibert  v.  Todd,  31  S.  C.  206,  9  S. 
E.  822,  4  L.  R.  A.  606. 

She  is  not  entitled  to  dower  in  partnership 
lands  purchased  by  partnership   funds  and 


for  partnership  purposes,  until  the  partner- 
ship debts  have  been  paid ;  Burnside  v.  Mer- 
rick, 4  Mete.  (Mass.)  537;  Woolridge  v.  Wil- 
kins,  3  How.  (Miss.)  372;  Loubat  v.  Nourse, 
5  Fla.  350 ;  Duhring  v.  Duhring,  20  Mo.  174 ; 
Drewry  v.  Montgomery,  28  Ark.  259;  Willet 
v.  Brown,  65  Mo.  148,  27  Am.  Rep.  265; 
Campbell  v.  Campbell,  30  N.  J.  Eq.  417.  She 
has  been  denied  dower  in  land  purchased  by 
several  for  the  purposes  of  sale  and  specu- 
lation; Coster  v.  Clarke,  3  Edw.  Ch.  (N.  Y.) 
428;  it  has  been  treated  as  personalty  so 
far  as  was  necessary  to  settle  the  partner- 
ship affairs,  the  right  of  dower  being'  sub- 
ject to  the  debts  of  the  firm;  Young  v. 
Thrasher,  115  Mo.  222,  21  S.  W.  1104;  Mal- 
lory  v.  Russell,  71  la.  63,  32  N.  W.  102,  60 
Am.  Rep.  776;  Wheatley's  Heirs  v.  Calhoun, 
12  Leigh   (Va.)   264,  37  Am.  Dec.  654. 

Sometimes  she  is  allowed  dower  out  of 
money,  the  proceeds  of  real  estate  sold  by 
order  of  court,  or  by  the  wrongful  act  of  an 
agent  or  trustee ;  Jennison  v.  Hapgood,  14 
Pick.  (Mass.)  345;  Beavers  v.  Smith,  11  Ala. 
33;  Church  v.  Church,  3  Sandf.  Ch.  (N.  Y.) 
434;  Willet  v.  Beatty,  12  B.  Monr.  (Ky.) 
172;  Thompson  v.  Cochran,  7  Humphr. 
(Tenn.)    72,  46  Am.  Dec.  68. 

Her  claim  for  dower  has  been  held  not 
subject  to  mechanics'  liens ;  Shaeffer  v. 
Weed,  3  Gilman  (111.)  511;  Nazareth  Liter- 
ary &  Benevolent  Inst.  v.  Lowe,  1  B.  Monr. 
(Ky.)   257.' 

The  principle  of  equitable  contribution  ap- 
plies equally  to  dower,  as  to  other  incum- 
brances ;  Eliason  v.  Eliason,  3  Del.  Ch.  260. 
She  is  not  entitled  to  dower  in  an  estate 
pur  auter  vie;  Gillis  v.  Brown,  5  Cow.  (N. 
Y.)  388;  or  in  a  vested  remainder;  Fisk  v. 
Eastman,  5  N.  H.  240;  Moore  v.  Esty,  5  N. 
H.  479;  Blow  v.  Maynard,  2  Leigh  (Va.)  29; 
Reynolds  v.  Reynolds,  5  Paige,  Ch.  (N.  Y.) 
161 ;  or  in  reversion  of  the  husband,  where 
he  dies  before  the  termination  of  the  life 
estate;  Kellett  v.  Shepard,  139  111.  433,  28 
N.  E.  751,  34  N.  E.  254. 

In  some  states  she  has  dower  only  in  what 
the  husband  died  seised  of;  Winstead  v. 
Winstead's  Heirs,  2  N.  C.  243 ;  4  Kent  41. 

The  wife's  dower  will  be  protected  against 
the  voluntary  conveyance  of  the  husband 
made  pending  a  marriage  engagement,  under 
the  same  circumstances  in  which  the  hus- 
band is  relieved  against  an  ante-nuptial  set- 
tlement by  the  wife;  Chandler  v.  Hollings- 
worth,  3  Del.  Ch.  99.  This  case  is  consider- 
ed by  Washburn  and  Bishop  as  the  leading 
case  and  is  approved  by  both  authors;  3 
Washb.  R.  P.  359 ;  2  Bish.  M.  W.  §  343,  note 
2,  quoting  the  greater  portion  of  the  opinion 
of  Bates,  Ch. 

Requisites  of.  Three  things  are  usually 
said  to  be  requisite  to  the  consummation  of 
a  title  to  dower,  viz. :  marriage,  seisin  of  the 
husband,  and  his  death;  4  Kent  36;  1 
Washb.  R.  P.  169 ;  King  v.  King,  61  Ala.  481 ; 
Wait  v.  Wait,  4  N.  Y.  99. 


DOWER 


935 


DOY. 


The  marriage  must  be  a  legal  one;  though, 
if  voidable  and  not  void,  she  will  have  her 
dower  unless  it  is  dissolved  in  his  lifetime; 
Smart  v.  Whaley,  6  Smedes  &  M.  (Miss.) 
308;  Co.  Litt.  33  a;  1  Cruise,  Dig.  164;  Big- 
gins v.  Breen,  9  Mo.  501 ;  Jones  v.  Jones,  2S 
Ark.  21. 

The  husband  must  have  been  seised  in  the 
premises  of  an  estate  of  inheritance  at  some 
time  during  the  coverture.  It  may  not  be 
an  actual  seisin;  a  seisin  in  law  with  the 
right  of  immediate  corporeal  seisin  is  suffi- 
cient; Eldredge  v.  Forrestal,  7  Mass.  253; 
Mann  v.  Edson,  39  Me.  25;  Dunham  v.  Os- 
born,  1  Paige,  Ch.  (N.  Y.)  635;  Shoemaker 
v.  Walker,  2  S.  &  R.  (Pa.)  554;  1  Cruise, 
Dig.  166;  Young  v.  Young,  45  N.  J.  Bq.  27, 
16  Atl.  921  ;  Houston  v.  Smith.  SS  X.  C.  312. 
Possession  by  a  widow  of  the  mansion  house 
of  her  husband,  and  her  unassigned  right 
of  dower,  do  not  prevent  the  heir  from  being 
seised  thereof  so  that  his  widow  may  ac- 
quire dower  therein;  Null  v.  Howell,  111 
Mo.  273,  20  S.  W.  24.  It  is  not  necessary 
that  the  seisin  of  the  husband  should  be  a 
rightful  one.  The  widow  of  a  disseisor  may 
have  dower  against  all  who  have  not  the 
rightful  seisin;  Seribn.  Dow.  702.  See 
Tooiney   v.  McLean,   105  Mass.   122. 

So,  although  the  estate  is  a  defeasible  one, 
provided  it  is  one  of  inheritance,  she  may 
claim  her  dower  until  it  is  defeated;  Co. 
Litt.  241;  Doughty  v.  Doughty,  7  N.  J.  Eq. 
241 ;   10  Co.  95. 

The  seisin  is  not  required  to  remain  in  the 
husband  any  particular  length  of  time.  It 
is  sufficient  if  he  is  seised  but  an  instant,  to 
his  own  benefit  and  use;  Young  v.  TarbelL 
37  Me.  509;  2  Bla.  Com.  132;  Kade  v.  Laub- 
er,  48  How.  Pr.  (N.  Y.)  3S2;  but  a  mere  in- 
stantaneous seisin  for  some  other  purpose 
than  proprietorship  will  not  give  the  wife 
dower;  Stanwood  v.  Dunning,  14  Me.  290; 
Wooldridge  v.  Wilkins.  3  How.  (Miss.)  3G9 ; 
Edmondson  v.  Welsh,  27  Ala.  578 ;  McCauley 
v.  Grimes.  2  G.  &  J.  (Md.)  318,  20  Am.  Dec. 
434;  Emerson  v.  Harris,  6  Mete.  (Mass.) 
475. 

Where  he  purchases  land  and  gives  a 
mortgage  at  the  same  time  to  secure  the  pur- 
chase-money, such  incumbrance  takes  prec- 
edence of  his  wife's  dower;  Stow  v.  Tifft, 
15  Johns.  (N.  Y.)  458,  8  Am.  Dec.  2G6 ;  Reed 
v.  Morrison,  12  S.  &  R.  (Pa.)  IS;  Holbrook 
v  Finney.  4  Mass.  r,c,c>,  3  Am.  Dec.  243; 
Moore  v.  Esty,  5  N.  II.  479;  Griggs  v.  Smith. 
12  N.  J.  L.  22;  Bogie  v.  Rutledge,  1  Bay  (S. 
C.)  312;  Smith  v.  Stanley,  37  Me.  11,  58  Am. 
Dec.  771. 

The  death  of  the  husband.  1  Cruise,  Dig. 
168.  What  was  known  as  civil  death  in  Eng- 
land did  not  give  the  wife  right  of  dower; 
2  Crabb.  R.  P.  130;  Wooldridge  v.  Lucas,  7 
B.  Monr.  (Ky.)  51;  Platner  v.  Sherwood,  <*> 
Johns.  Ch.  (N.  Y.)  129.  Imprisonment  for 
life  is  declared  civil  death  in  some  of  the 
states. 


dower  may  be  prevented  or  dV/. 
At  common  law,  irt  »t  che 

husband  or   wife  r   fr^m  at- 

taching; 2   Bla.   Com.   131;    Priest   v.   Cum- 
mings,    16    Wend.     (X.    Y.)     617; 
O'FaUon,  2  Mo.  32.    ]  bis  >:' 
tially    done   away    with    in    1 
Vict.  c.  <'>';.  and  is  alm<    t  wholly  abolished  In 
the  United  States.     See  Alien. 

It  is  well  established  thai  I 
is  defeated  whenever  tbi  C  her  bus- 

band  la  defeated  by  a  paramount  title;  Co. 
Litt  240  6;  4  Kent  48. 

The  foreclosure   of   a    mork 
the  husband  before  marriage,  or  by  the  wife 
and  husband  after  marriage,  will  defeat  her 
rlghl  of  dower;  Stow  v.  Tifft.  15  Johns.   (N. 
v.  i  458,  8  Am.  Dec  I  v.  Moi 

12  S.  &  r.  (Pa.)  18;  Nottingham  v.  Calvert, 

1  Ind.   "27;  Bisland   v.   Eewett,   ll    Si 

&  M.  (  Miss.)  164  :  Wilson  v.  1 1  2  Rob. 

(Va.)  384;  Ingram  v.  Morris,  4  Barr.  (Del.) 
Ill;  Shope  v.  Schaffner,  140  111.  470,  30  N. 
E.  872;  Boorum  v.  Tucker,  51  X.  J.  Eq.  135, 
2G  Atl.  456.  And  in  Pennsylvania,  wl 
the  wife  joined  or  not.  Like  force  would  be 
given  to  a  vendor's  lien  or  m<  >r  tbe 

purchase-money,  or  to  a  judgment  lien  out- 
standing at  the  time  of  marriage. 

Her  right  to  dower  in  the  estate  which 
she  has  joined  with  her  husband  In  mort- 
gaging is  good  against  every  one  but  the 
igee;  Whitehead  v.  Middleton,  2  Hew. 
(Miss.)  692;  Eaton  v.  Simonds,  14  Pick. 
(Mass.)    98;   Hastings  v.  Ste  N.  H. 

564;    Young    v.    Tarbell,    37    Me.    509.      The 
same  is  true  in  regard  to  an  estate  mortgag- 
ed by  her  husband  before  coverture:   I 
v.  Simonds,  14  Pick.  (Mass.)  98.    In  o 
case  would  the   husband   have    tbo    right    to 
cut  off  her  claim  for  dower  by  a 
the-  mortgagee,  or  an  assignment  of  bis  eq- 
uity of  redemption  :  Titus  v.  Neilson,  5  Johns. 
Ch.  (X.  Y.)   452;  Swaine  v.  Perine,  6  Johns. 
Ch.    (X.  Y.)   482,  9  Am.  Dec.   318;   Eaton  v. 
Simonds,   14    Pick.    (Mass.)    98;    Md 
Cherry,    8    Huini.hr.     (Tenn.)    713;     Hetb    v. 
Cocke,    1    Rand.    (Va.)     344;    Simonton    v. 
Gray,  34  Me.  50;  Harrison  v.  Eldridge,  7  N. 
J.  L.  392.    As  to  a  purchase  and  mort 
for  the  purchase-money   before  marriage,  in 
which  the  busband  releases  the  equity  of  re- 
demption   after    marriage,    see    Jackson    v. 
Dewitt.  6  Cow.  in.  X  I 

An  agreement  on  the  part  of  tbe  husband 
to  convey  before  dower  attaches,  If  enforced, 
will  extinguish  her  claim;  Adklns  v.  Hohmes, 

2  Ind.  197;  Bowie  v.  Berry,  3  Md.  Ch,  359. 
Dower  will  not  be  defeated  by  the  deter- 
mination of  the  estate  by  natural  limitation; 
as,  if  the  tenant  in  fee  die  without  heirs,  or 
the  tenant  in  tail;  8  Co.  34;  4  Kent  49; 
Northcul  v.  Whipp,  12  B.  Monr.  (Ky  7 
Whether  it  will  he  defeated  by  a  conditional 
limitation  by  way  of  executory  devise  or 
shifting  use.  is  not  yet  fully  settled:  Co.  Litt. 
241a,  Butler's  note  170;  Sugd.  Pow.  333;  3 


DOWER 


936 


DOWER 


B.  &  P.  652.  But  it  seems  that  the  weight 
of  American  authority  is  in  favor  of  sustain- 
ing dower  out  of  such  estates;  Evans  v.  Ev- 
ans, 9  Pa.  190 ;  Milledge  v.  Lamar,  4  Desaus. 
(S.  C.)   617.     See  1  Washb.  R.  P.  216. 

Dower  will  be  defeated  by  operation  of  a 
collateral  limitation :  as,  in  the  case  of  an 
estate  to  a  man  and  his  heirs  so  long  as  a 
tree  shall  stand,  and  the  tree  dies;  3  Prest. 
Abstr.  373 ;  4  Kent  49. 

In  some  states  it  will  be  defeated  by  a  sale 
on  execution  for  the  debts  of  the  husband; 
Gardiner  v.  Miles,  5  Gill  (Md.)  94;  London 
v.  London,  1  Humphr.  (Tenn.)  1;  Kennerly  v. 
Ins.  Co.,  11  Mo.  204 ;  Den  v.  Frew,  14  N.  C. 
3,  22  Am.  Dec.  708 ;  but  see  Thomas  v.  Thom- 
as,  73  la.  657.  35  N.  W.  693.  In  Missouri 
it  is  defeated  by  a  sale  in  partition;  Lee  v. 
Lindell,  22  Mo.  202,  64  Am.  Dec.  262.  See 
Jackson  v.  Edwards,  22  Wend.  (N.  Y.)  498; 
Van  Gelder  v.  Post,  2  Edw.  Ch.  (N.  Y.)  577. 
See  25  Alb.  L.  J.  3S7. 

It  is  defeated  by  a  sale  for  the  payment 
of  taxes;  Jones  v.  Devore,  8  Obio  St.  430. 

It  is  also  defeated  by  exercise  of  the  right 
of  eminent  domain  during  the  life  of  the 
husband.  Nor  has  the  widow  the  right  of 
compensation  for  such  taking.  The  same 
is  true  of  land  dedicated  by  her  husband  to 
public  use;  Gwynne  v.  City  of  Cincinnati,  3 
Ohio  24,  17  Am.  Dec.  576. 

How  dower  may  be  barred.  A  divorce 
from  the  bonds  of  matrimony  was  at  com- 
mon law  a  bar  to  dower;  2  Bla.  Com.  130; 
Wait  v.  Wait,  4  Barb.  (N.  Y.)  192;  Hinson 
v.  Bush,  84  Ala.  368,  4  South.  410;  Pullen 
v.  Pullen,  52  N.  J.  Eq.  9,  28  Atl.  719;  but 
the  woman's  right  to  dower,  or  something 
equivalent  to  it,  is  reserved  by  statutes  in 
most  of  the  states,  if  she  be  the  innocent 
party ;  Forrest  v.  Forrest,  6  Duer  (N.  Y.) 
102.  A  judgment  of  divorce  in  another 
state,  for  cause  other  than  adultery,  which 
has  the  effect  to  deprive  the  wife  of  dower  in 
the  state  where  rendered,  will  not  have  such 
effect  in  New  York;  the  United  States  con- 
stitution makes  a  judgment  in  another  state 
conclusive  as  to  the  fact  of  divorce,  but 
gives  no  extra-territorial  effect  on  land  of 
the  husband ;  Van  Cleaf  v.  Burns,  133  N.  Y. 
540,  30  N.  E.  G61,  15  L.  R.  A.  542. 

By  the  common  law  neither  adultery  alone 
nor  with  elopement  was  a  bar  to  dower ;  2 
Scrib.  Dow.  531 ;  but  by  the  statute  of  West- 
minster 2d,  a  wife  who  eloped  and  lived  in 
adultery  forfeited  her  dower-right.  This 
provision  has  been  re-enacted  in  several  of 
the  states  and  recognized  as  common  law  in 
others ;  Lecompte  v.  Wash,  9  Mo.  555 ;  Ste- 
gall  v.  Stegall,  2  Brock.  256,  Fed.  Cas.  No. 
13,351;  Cogswell  v.  Tibbetts,  3  N.  H.  41; 
Walters  v.  Jordan,  35  N.  C.  361,  57  Am. 
Dec.  558 ;  4  Dane,  Abr.  676 ;  Bell  v.  Nealy,  1 
Bailey  (S.  C.)  312,  19  Am.  Dec.  6S6 ;  contra, 
Schiffer  v.  Pruden,  64  N.  Y.  47;  Lakin  v. 
Lakin,  2  Allen  (Mass.)  45 ;  Littlefleld  v.  Paul, 
69  Me.  527 ;  Bryan  v.  Batcheller,  6  R.  I.  543, 


78  Am.  Dec.  454.  Dower  is  not  barred  even 
if  the  wife  commit  adultery,  if  she  be  aban- 
doned by  her  husband  and  he  be  profligate 
and  intemperate  and  an  adulterer ;  Rawlins 
v.  Buttel,  1  Houst.  (Del.)  224;  nor  if  she  be 
deserted  by  her  husband,  will  her  subsequent 
seduction  and  adultery  operate  as  a  bar ; 
Appeal  of  Nye,  126  Pa.  341,  17  Atl.  618;  6 
U.  C.  C.  P.  310;  Shaffer  v.  Richardson's 
Adrn'r,  27  Ind.  122.  For  an  analysis  of  de- 
cisions and  reference  to  state  statutes  on 
this  subject,  see  2  Scrib.  Dow.  531. 

A  widow  who  had  been  convicted  as  acces- 
sory before  the  fact  to  her  husband's  mur- 
der was  held  entitled  to  dower ;  Owens  v. 
Owens,  100  N.  C.  240,  6  S.  E.  794. 

Dower  is  barred  by  an  annuity  given  the 
wife  in  a  divorce  decree,  and  charged  on 
the  husband's  real  estate,  where  the  wife 
had  taken  her  maintenance  under  the  de- 
cree ;  Adams  v.  Storey,  135  111.  448,  26  N.  E. 
582,  11  L.  R.  A.  790,  25  Am.  St.  Rep.  392. 

The  widow  of  a  convicted  traitor  could 
not  recover  dower  ;  2  Bla.  Com.  130  ;  but  this 
principle  is  not  recognized  in  this  country; 
Wms.   R.  P.   103,  n. 

Nor  does  she  in  this  country,  as  at  com- 
mon law,  forfeit  her  dower  by  conveying  in 
fee  the  estate  assigned  to  her ;  4  Kent  82 ; 
Wms.  R.  P.  121,  125,  n. ;  Robinson  v.  Miller, 

1  B.   Monr.   (Ky.)   88. 

The  most  common  mode  formerly  of  bar- 
ring dower  was  by  jointure ;  Scrib.  Dow.  389 ; 
Craig's  Heirs  v.  Walthall,  14  Gratt.  (Va.) 
51S ;  Stilley  v.  Folger,  14  Ohio  610 ;  West  v. 
Walker,  77  Wis.  557,  46  N.  W.  S19.  Marriage 
is  a  sufficient  consideration  to  support  an 
ante-nuptial  contract  for  release  of  dower ; 
Shea's  Appeal,  121  Pa.  302,  15  Atl.  629,  1  L. 
R.  A.  422;  Worrell  v.  Forsyth,  141  111.  22, 
30  N.  E.  673.  Now  it  is  usually  done  by 
joining  with  her  husband  in  conveying  the 
estate.  Formerly  this  was  done  by  levying 
a  fine,  or  suffering  a  recovery ;  4  Kent  51 ; 

2  Bla.  Com.  137 ;  now  it  is  by  deed  executed 
with  her  husband  and  acknowledged  in  the 
form  required  by  statute ;  Wms.  R.  P.  1S9 ; 
Coburn  v.  Herrington,  114  111.  104,  29  N.  E. 
478;  Mitch.  R.  P.  156;  which  is  the  mode 
prevailing  in  the  United  States.  The  hus- 
band must  usually  join  in  the  act;  Moore 
v.  Tisdale,  5  B.  Monr.  (Ky.)  352;  Ulp  v. 
Campbell,  19  Pa.  361 ;  Page  v.  Page,  6  Cush. 
(Mass.)  196 ;  Shaw  v.  Russ,  14  Me.  432. 

Words  of  grant  will  be  sufficient  although 
no  reference  is  made  in  the  deed  to  dower 
eo  nomine;  Dundas  v.  Hitchcock,  12  How. 
(U.  S.)  256,  13  L.  Ed.  978 ;  Smith  v.  Handy, 
16  Ohio  236. 

In  most  of  the  states  her  deed  must  be 
acknowledged,  and  in  the  form  pointed  out 
by  statute ;  Williams  v.  Robson,  6  Ohio  St. 
510;  Kirk  v.  Dean,  2  Binn.  (Pa.)  341;  Scan- 
Ian  v.  Turner,  1  Bail.  (S.  C.)  421;  Clark  v. 
Redman,  1  Blackf.  (Ind.)  379;  which  must 
appear  in  the  certificate ;  Elwood  v.  Klock, 
13  Barb.  (N.  Y.)  50.     She  should  be  of  age 


DOWER 


937 


UUW1.K 


at  the  time;  Jones  v.  Todd,  2  J.  J.  Marsh. 
(Ky.)  359;  Thomas  v.  Gammel,  6  Leigh  (Va.) 
9;  Cunningham  v.  Knight,  1  Barb.  (N.  Y.) 
30!);  Markham  v.  Merrett,  7  Bow.  I 
437,  40  Am.  Dec.  7G.  She  cannot  release  her 
dower  by  parol;  see  Wood  v.  Lee,  G  T.  B. 
Monr.  (Ky.)  57;  Keeler  v.  Tatnell,  23  N.  J. 
L.  62.  A  parol  sale  of  lands  in  which  the 
husband  delivers  possession  does  no 
elude  dower;  Williams  v.  Dawson.  3  Sneed 
(Tenn.)  316.  But  it  has  been  held  that  she 
may  bar  her  claim  for  dower  by  her  own 
acts  operating  by  way  of  estoppel;  Ileth  v. 
Cocke,  1  Band.  (Va.)  344;  Dongrey  v.  Top- 
pin-.  -1  Paige,  Oh.  (N.  Y.)  94;  Reed  v.  Mor- 
rison, 12  S.  &  B.  (Pa.)  18;  Gardiner  v.  Miles, 
5  (Jill  (Md.)  94. 

A  release  of  dower  by  a  wife  direct  to  her 
husband  will  not  enable  him  by  his  sole 
deed  to  convey  the  land  free  of  dower  right, 
for,  if  the  release  is  at  all  effectual,  the  hus- 
band becomes  vested  with  a  fee  simple  and 
the  dower-right  immediately  reattaches  by 
operation  of  law;  House  v.  Fowle,  22  Or. 
303,  29  Pac.  890;  but  where  the  wife  has 
power  to  release  her  dower  by  an  attorney 
in  fact,  she  may  constitute  her  husband  at- 
torney for  the  purpose ;  Wronkow  v.  Oakley, 
133  X.  Y.  50o,  31  N.  E.  521,  16  L.  B.  A.  209, 
28  Am.   St.   Bep.  661. 

A  release  of  dower  has  been  presumed  aft- 
er a  long  lapse  of  time;  Barnard  v.  Edwards, 
4  N.  H.  321 ;  Evaus  v.  Evans,  3  Yeates  (Pa.) 
507. 

At  common  law  there  was  no  limitation 
to  the  claim  for  dower ;  4  Kent  70.  As  to 
the  statutes  in  the  different  states,  see  id. 
note;  1  Washb.  B.  P.  217.  Adverse  posses- 
sion for  seven  years  with  claim  and  color 
of  title  and  payment  of  taxes  will  bar  a 
claim  of  dower;  Brian  v.  Melton,  125  111. 
647,  18  N.  E.  31S;  Null  v.  Howell,  111  Mo. 
275,  20  S.  W.  24  :  but  see  Boling  v.  Clark, 
83  La.  481,  50  N.  W.  57. 

The  right  to  dower  does  not  depend  on  the 
existence  of  the  family  relation  at  the  death 
of  the  husband  and  is  not  barred  by  deser- 
tion; Nye's  Appeal.  120  Pa.  341,  17  Atl.  618, 
12  Am.  St.  Bep.  873. 

Upon  the  doctrine  of  dots  de  dote,  see  1 
Washb.    K.    P.  209. 

In  some  states  the  wife  may  elect  to  take 
half  of  the  husband's  estate  in  lieu  of  dower 
under  certain  contingencies;  Welch  v.  An- 
derson, 2S  Mo.  293;  or  she  may  accept  a 
devise  in  lieu  of  dower;  Nelson  v.  Brown, 
00  Bun  311,  20  N.  Y.  Supp.  978;  Stone  v. 
Vandermark,  146  ill.  312,  34  N.  B.  150;  Ban- 
nister v.  Bannister,  37  B.  Q  529,  if.  S.  B.  612; 
Goodrum  v.  Goodrum,  56  Ark.  532,  20  S.  W. 
353. 

It  seems  that  a  contract  to  many  on  con- 
dition that  the  wife  should  receive  no  portion 
of  the  husband's  lands  may  be  valid;  Spiva 
v.  Jeter,  9  Bich.  Eq.   (S.  C.)  434. 

iioir  and  by  whom  dower  may  be  assigned. 
Her  right  to  have  dower  set  out  to  her  ac- 


crues   Immediately    upon    the    death    of    her 

husband  ;   but  until  it 

right   to  any   si  .  te;   2 

i'.la.    Com.    139. 

Carta  to  occupy  the  principal  I  of  her 

husband  for   forty   d  th,  if 

it  were  on  dowable  land.-.     'J '.. 

riously    re©  gi  ized    iii    th( 

McAllister,  'J  Mo.   163;   D 

148;    Chaplin    v.    Simmons'    Beirs,    7   T.   B. 

Monr.    (  Ky.  I    337 :    St  dman    v.    1 

Conn.  462.     in  some  stab  main 

In  posses  -  Ion  of  the  principal  man 

and  in.  thereto  belonging  until  dower 

has    been    assigned;    Grimes    v.    Wil 

Blackf.    (Ind.  i    33L     This   makes   her   b 

in  common  with  the  heir  to  the  extent  i 

right    of    dower;    and     an    assignment 

works   a   scveranoe  of   the   tenancy;   4   Kent 

62;  Stokes  v.  McAllister,  2  Mo.  163. 

There  were  two  modes  of  assigning  dower; 
one  by  "common  right,"  where  the  assign- 
ment was  by  legal  pro..--;  the  other 
"against  common  right,"  which  rested  upon 
the  widow's  assent  ami  agreement 

I  >ower  of  "common  right"  must  be  assign- 
ed by  metes  and  bounds,  where  this  i- 
ble,  unless  the  parties  agree  to  a  different 
form;   2   Penning,   521;    1   Bolle,   Abr. 
Style  276;  Perkins  407. 

If  assigned  "against  common  right,"  it 
must  be  by  indenture  to  which  she  is  a  par- 
ty; Co.  Litt.  34  6;  Jones  v.  Brewer.  1  Pick. 
(".Mass.!    314. 

When-  assigned  of  common  right,  it  must 
be  unconditional  and  absolute;  Co.  Litr.  ::i 
B,  n.  217;   1   Rolle,  Abr.  682;  and  for  her  life; 

1  Bright,  Busb.  &  W.  37ft 

Where  it  is  assigned  not  by  legal  pi 

it  must  be  by  the  tenant  of  the  freehold; 
Co.  Litt.  35tt.     It  may  be  done  by  an  infant; 

2  I'.la.  Com.  136;  McCormick  v.  Taylor,  2  Ind. 
336;  or  by  the  guardian  of  the  heir;  2  Bla. 
Com.    136;    Young   v.   Tarbeii.   37    Me 

1  tower  may  be  assigned  in  partition:  Thom- 
as v.  Thomas.  7::  la.  657,  35  N.  W. 

As  between  the  widow  and  heir,  she  takes 
her  dower  according  to  the  value  of  the  prop- 
erty at  the  time  of  the  assignment;  Thomp- 
son v.  Morrow,  5  S.  &  B.  (Pa.)  290,  9 
Dec.  358;  Wooldrldge  r.  Wilkins,  •"■  Bow. 
(Miss  I  360;  Mosher  v.  Mosher,  15  Me.  371; 
Green  v.  Tennant,  2  Barr.  (Del.)  336;  Sum- 
mers v.  Babb,  13  ill.  483. 

As   between    the   widow    and    the    husband's 

alienee,   si,.-  takes  her  dower  accord 

the  value  at  the  time  of  the  alienation;  Hale 
v.  James,  6  Johns.  Ch.  (N.  Y.)  258,  10  Am 
Dec.  328;  Tod  v.  Baylor,  •»  Leigh  (Va,)  488, 

This  was  the  ancient  and  well  established 
rule;  Humphrey  v.  Phinney,  2  John-.  I  N 
v.i  484;  Catlin  \.  Ware.  9  Mass.  218,  6  Am. 
Dec.  56.  But  in  this  country  the  rule  in  re- 
spect to  the  alienee  seems  now  to  be  that  if 
the  land  bad  been  enhanced  in  value  by  his 
labor  and  improvements,  the  widow  shall 
bare  in  these;  Thompson  v.  Morrow,  5 


DOWER 


938 


DOWER 


S.  &  R.  (Pa.)  289,  9  Am.  Dec.  358;  Catlin  v. 
Ware,  9  Mass.  218,  6  Arm  Dec.  56;  Tod  v. 
Baylor,  4  Leigh  (Va.)  498;  Wilson  v.  Oat- 
man,  2  Blackf.  (Ind.)  223;  Barney  v. 
Frowner,  9  Ala.  901 ;  Baden  v.  McKenny,  7 
Mackey  (D.  C.)  268;  Felch  v.  Finch,  52  la. 
563,  3  N.  W.  570;  McGehee  v.  McGehee,  42 
Miss.  747 ;  if  it  has  been  enhanced  by  ex- 
traneous circumstances,  such  as  the  rise  and 
improvement  of  property  in  the  neighbor- 
hood, she  is  to  have  the  full  benefit  of  this ; 
Smith  v.  Addleman,  5  Blackf.  (Ind.)  406; 
Powell  v.  M'f'g  Co.,  3  Mas.  375,  Fed.  Cas. 
No.  11,356;  Johnston  v.  Vandyke,  6  McLean, 
422,  Fed.  Cas.  No.  7,426 ;  Wms.  R.  P.  191,  n. 

There  seems  to  be  no  remedy  for  her  now 
in  eitber  country  where  the  land  has  dete- 
riorated in  value  by  the  waste  and  misman- 
agement of  the  alienee  or  by  extraneous 
circumstances ;  McClanahan  v.  Porter,  10 
Mo.  746;  see  Westcott  v.  Campbell,  11  R.  I. 
378 ;  but  she  must  be  content  to  take  her 
dower  in  the  property  as  it  was  at  the  time 
of  her  husband's  death;  1  Washb.  R.  P.  239. 
See  Sanders  v.  McMillian,  98  Ala.  144,  11 
South.  750,  18  L.  R.  A.  425,  39  Am.  St.  Rep. 
19.  Where  the  widow  dies  without  asserting 
her  claim,  neither  her  personal  representa- 
tives, nor  those  of  her  assignee  of  such  dow- 
er right,  can  maintain  an  action  to  have 
dower  admeasured  or  for  a  gross  sum  in 
lieu  thereof;  Howell  v.  Newman,  59  Hun 
538,  13  N.  Y.  Supp.  648;  Pollitt  v.  Kerr,  49 
N.  J.  Eq.  66,  22  Atl.  800. 

Dower  may  also  be  recovered  in  equity, 
the  jurisdiction  of  which,  as  Chancellor 
Kent  says,  "has  been  thoroughly  examined, 
clearly  asserted,  and  definitively  establish- 
ed ;"  4  Kent  71 ;  and  nearly  half  a  century 
later  this  language  is  repeated  as  correctly 
expressing  the  result  of  the  authorities; 
Bisph.  Eq.  §  495.  The  jurisdiction  was  as- 
serted in  the  TL  S.  at  an  early  period ;  Gray- 
son v.  Moncure,  1  Leigh  (Va.)  449;  Kendall 
v.  Honey,  5  T.  B.  Monr.  (Ky.)  284;  Stevens 
v.  Smitb,  4  J.  J.  Marsh.  (Ky.)  64,  20  Am.' 
Dec.  205;  Swaine  v.  Perine,  5  Johns.  Ch.  (N. 
Y.)  482,  9  Am.  Dec.  318;  Badgley  v.  Bruce, 
4  Paige,  Ch.  (N.  Y.)  98;  and  although  in 
New  Jersey  in  the  time  of  Kent  the  equitable 
jurisdiction  was  denied ;  4  Kent  72 ;  Harri- 
son v.  Eldridge,  7  N.  J.  L.  392 ;  it  was  after- 
wards asserted  and  sustained ;  1  Green  Ch. 
b49.  The  jurisdiction  is  concurrent  with  that 
of  courts  of  law,  which  must  settle  the  legal 
title  when  that  is  in  controversy,  "but  if 
that  be  admitted  or  settled,  full  and  effec- 
tual relief  can  be  granted  to  the  widow  in 
equity  both  as  to  the  assignment  of  dower 
and  tbe  damages ;"  4  Kent  71 ;  and  in  many 
respects  the  remedy  in  equity  possesses  great 
advantages  over  that  at  law ;  Bisph.  Eq.  § 
496.  As  to  the  remedies  afforded  both  by 
law  and  equity  for  the  enforcement  of  dow- 
er, see  1  Washb.  R.  P.  226 ;  4  W.  R.  459. 

Nature  of  the  estate  in  dower.  Until  the 
death   of  her   husband,   the  wife's  right   of 


dower  is  not  an  interest  in  real  estate  of 
which  value  can  be  predicated ;  Moore  v. 
City  of  New  York,  8  N.  Y.  110,  59  Am.  Dec. 
473.  And  although  on  the  death  of  her  hus- 
band this  right  becomes  consummate,  it  re- 
mains a  chose  in  action  until  assignment; 
4  Kent  61;  Green  v.  Putnam,  1  Barb.  (N. 
Y.)  500;  Johnson  v.  Shields,  32  Me.  424; 
Shield's  Heirs  v.  Batts,  5  J.  J.  Marsh.  (Ky.) 
12;  McClanahan  v.  Porter,  10  Mo.  746;  Hil- 
leary  v.  Hilleary's  Lessee,  26  Md.  289. 

During  coverture  a  wife  has  such  an  in- 
terest in  her  husband's  lands  which  have 
been  conveyed  by  him  without  her  joining 
in  the  deed,  as  will  make  a  release  by  her 
a  valuable  consideration ;  Howlett  v.  Dilts, 
4  Ind.  App.  23,  30  N.  E.  313.  See  Brooks 
v.  McMeekin,  37  S.  C.  2S5,  15  S.  E.  1019. 

Until  assignment,  she  has  no  estate  which 
she  can  convey  or  which  can  be  taken  on 
execution  for  her  debts ;  2  Keen  527 ;  Tomp- 
kins v.  Fonda,  4  Paige,  Ch.  (N.  Y.)  448; 
Gooch  v.  Atkins,  14  Mass.  378;  Summers  v. 
Babb,  13  111.  483;  Rausch  v.  Moore,  48  la. 
611,  30  Am.  Rep.  412 ;  Webb  v.  Boyle,  63  N. 
C.  271 ;  contra,  Powell  v.  Powell,  10  Ala.  900. 

But  where  she  does  sell  or  assign  this 
right  of  action,  equity  will  protect  the  rights 
of  the  assignee  and  sustain  an  action  in  the 
widow's  name  for  his  benefit;  Lamar  v. 
Scott,  4  Rich.  (S.  C.)  516;  Powell  v.  Powell, 
10  Ala.  900 ;  Potter  v.  Everitt,  42  N.  C.  152 ; 
Parton  v.  Allison,  109  N.  C.  674,  14  S.  E. 
107.  She  may  mortgage  her  undivided  dow- 
er interest,  which  is  valid  in  equity ;  Herr  v. 
Herr,  90  la.  538,  58  N.  W.  897. 

She  can  release  her  claim  to  one  who  is 
in  possession  of  the  lands,  or  to  whom  she 
stands  in  privity  of  estate;  Blain  v.  Harri- 
son, 11  111.  384;  Jackson  v.  Vanderheyden, 
17  Johns.  (N.  Y.)  167,  8  Am.  Dec.  378; 
Johnson  v.  Shields,  32  Me.  424;  Saltmarsh 
v.  Smith,  32  Ala.  404;  Saunders  v.  Blythe, 
112  Mo.  1,  20  S.  W.  319 ;  8  L.  R.  Q.  B.  D.  31 ; 
Weaver  v.  Sturtevant,  12  R.  I.  537. 

But  as  soon  as  the  premises  have  been  set 
out  and  assigned  to  her,  and  she  has  entered 
upon  them,  the  freehold  vests  in  her  by  vir- 
tue of  her  husband's  seisin ;  Co.  Litt.  239  a ; 
Inhabitants  of  Windham  v.  Inhabitants  of 
Portland,  4  Mass.  384;  Norwood  v.  Marrow, 
20  N.  C.  578.  Her  estate  is  a  continuation 
of  her  husband's  by  appointment  of  the  law ; 
Conant  v.  Little,  1  Pick.  (Mass.)  189;  Baker 
v.  Baker,  4  Greenl.  (Me.)  67;  Love  v.  Mc- 
Clure,  99  N.  C.  290,  6  S.  E.  247,  250. 

The  legislature  may  change  the  relative 
rights  of  husband  and  wife  after  marriage, 
and  may  substitute  for  inchoate  dower  an- 
other and  larger  estate  to  be  carved  out  of 
that  of  the  husband  after  his  death ;  Noel 
v.  Ewing,  9  Ind.  37;  but  not  after  the  hus- 
band's death ;  Bottorff  v.  Lewis,  121  la.  27, 
95  N.  W.  262;  nor  as  against  one  who  has 
contracted  for  a  judgment  lien  on  the  hus- 
band's property,  although  such  judgment 
was  not  entered  until  after  the  statute  was 


DOWER 


939 


DRAFT 


passed;  Davidson  v.  Richardson,  50  Or.  323, 
91  Pac.  10S0,  17  L.  R.  A.  (N.  S.)  319,  126 
Am.  St.  Rep.  738.  And  it  is  held  that  a  stat- 
ute enlarging  dower  by  extending  it  to  the 
husband's  equitable  estate  did  not  apply  to 
a  widow  married  before  the  statute  was 
passed;  Slinglufl  v.  Ilubner,  101  Md.  <;:,•_",  63 
Atl.  .".-.JiV 

See  Scribner,  Dower;  Dembitz,  Land  Ti- 
tles; Tudor;  Washburn;  Cruise;  Tiedeman, 
i;cai  Property;  Divobce;  ki.f.ction  of 
Rights;  Assignment  of  Dower;  Qtjaban- 
'li  m:. 

DOWRESS.  A  woman  entitled  to  dower. 
See  Dower. 

DOWRY.  Formerly  applied  to  mean  that 
which  a  woman  brings  to  her  husband  In 
marriage:  this  is  now  called  a  portion. 
This  word  is  sometimes  confounded  with 
dower.  See  Co.  Litt.  31;  la.  Civ.  Code; 
Dig.  23.  3.  7G;  Code  5.  12.  20;  Buard  v.  De 
Russy,  6  Rob.  (La.)  Ill;  Gates  v.  Legendre, 
Id  Rob.  (La.)  74;  De  Youm:  v.  I>o  Young. 
6  La.  Ann.  7SG;  Cutter  v.  Waddingham;  22 
Mo.  254. 

DRAFT.  An  order  for  the  payment  of 
money,  drawn  by  one  person  on  another. 
Wildes  v.  Savage,  1  Sto.  30,  Fed.  Cas.  No. 
17,053.  It  is  said  to  be  a  nomen  <k  n<  ralissi- 
mum,  and  to  include  all  such  orders,  ibid., 
per  Story,  J.  It  is  frequently  used  in  corpo- 
x-ations  where  one  agent  draws  on  another; 
in  such  case  it  may  be  treated  either  as  an 
accepted  bill  or  a  promissory  note;  1  Dan. 
Neg.  Inst.  350;  Tiedeman,  Com.  Pap.  §  128. 
Drafts  come  within  a  statutory  provision 
respecting  "bills  and  notes  for  the  direct 
payment  of  money;"  Gilstrap  v.  R.  Co.,  50 
Mo.  491.  They  are  frequently  given  for 
mere  convenience  in  keeping  accounts,  and 
providing  concurrent  vouchers,  and  it  is  not 
necessary  to  present  such  a  draft  to  the 
drawee  or  to  give  notice  of  non-payment  be- 
fore suing  the  corporation;  1  Dan.  Neg.  Inst. 
350;  Dennis  v.  Water  Co.,  10  Cal.  369;  Mob- 
ley  v.  Clark,  2S  Barb.  (N.  Y.)  391  ;  Shaw  v. 
Stone,  1  Cush.  (Mass.)  256.  A  draft  by  di- 
rectors of  an  assurance  company  on  its 
cashier  was  said  to  contain  all  that  is  es- 
sential to  constitute  a  promissory  note;  9 
C.  B.  574.  Drafts  are  frequently  used  be- 
tween municipal  oflicors.  and  are  not  usual- 
ly negotiable  Instruments;  l  Dan.  Neg.  Inst. 
352.  But  it  has  been  held  that  municipal 
warrants  or  orders  for  the  payment  Of  debts, 
if  authorized  and  drawn  in  negotiable  lan- 
guage, may  be  sued  on  by  the  transferee; 
id.  353;  Kelley  v.  City  of  Brooklyn,  4  Hill. 
(N.  Y.)  265.  They  must  be  presented  for 
payment  before  suit;  Pease  v.  Inhabitants  of 
Cornish,  19  Me.  193;  contra.  Steel  v.  Davis 
County.  2  G.  Greene  (la.)  469. 

Draft,  in  a  commercial  sense,  is  an  allow- 
ance to  the  merchant  where  the  duty  is  as- 
certained by  weight,  to  insure  good  weight 


to  him;  it  Is  a  small  allowance  in  weighable 
goods,  made  by  the  king  to  the  importer; 
it  is   to   CO  for   any    lo-s    that    may 

occur  from  the  handling  of  the  In  the 

weighing,   so   that,   when 
time,  the  article  will  bol 
Napier  v.  Barney,  6  Blatchf. 
No.  10,009. 

the  rough  copy  uf  a  U 
before 

DRAG0     DOCTRINE.     The     pri 
sorted   by   Luis   Drago,   Minister  o 
Affairs  of  the  Argentine  Republic,  In  a  let- 
ter to  the  Argentine   Mil 
ton,  December  29,  1902,  tb  it  the  1   i 
Hon  of  states  to  secure  the 
of    public   debts    due    to    their  citizens    from 
foreign  states  is  unjustifiable  and  dang 
to  the  security  and  peace  of  the  nati< 
South  America.     The  doctrine  was 
but    became    associated     with    the    na:. 
Drago,  owing  to  his  publication  of  an  elabo- 
rate exposition  of  it  shortly  before  the 
ond    Hague   Conference.     The   subject    was 
brought  before  the  conference  by  the  Dnited 
States    and    a    Convention    was    adopted    in 
which  the  contracting  powers  agreed,   with 
some  restrictive  conditions,   not  to   have  re- 
course to  armed   force   for  the  recovery   of 
contract   debts    claimed    by    thoi'r   nationals 
against    a    foreign   state.      Biggins,    184-197. 
DRAGOMAN.     An  interpreter  employed  in 
the   east,    and   particularly   at   the   Turkish 
court 

DRAIN.  To  conduct  water  from  one  place 
to  another,  for  the  purpose  of  drying  the 
former. 

The  right  of  draining   water  through  an- 
other man's  land.     This  is  an  easement    or 
servitude  acquired  by   grant  or  preacrl 
See  3  Kent  436;  7  M.  ft  <;.  354. 

In     Goldthwait    v.     Inhabitants     of 
Bridgwater,  5  Gray  (Mass.)  63,  it  was  said 
that  the  word  drain  has  no  technical  or  ex- 
act   meaning.      It   was   considered    fully    in 
People  v.  Parks.  58  Cal.  639. 

A  state  may  provide  for  the  constru 
of  canals  for  draining  marshy  and  malarious 
district-,    and    of    levees    to    prevent    inunda- 
tions; Hagar  v.  Reclamation  Dlst,    111    O.  B. 
701,  4  Sup.  Ct  663,  28  L.  Ed.  669.    T 
penses  of  such  works  may  be  •  -'  linst 

parties  specially  benefited  and  be  made  a 
lien  upon  their  property:  id.  The  law  under 
which  such  an  assessment  Is  made  does  not 

deprive  one  Of  property  without   due   |  I 
of  law;  id.    Taylor  v.  Crawford.  72  Ohio  St. 
560,  7  1  N.  B.  1065,  69  L.  B,  A.  805.    Bee  Dm 
PBOCSSS  of  Law;    Kmimm'   DOMAIN;  Taxa- 
tion ;    l.i  0181  mivi:   Tow  KB  . 

DRAINAGE  DISTRICT.  The  organiza- 
tion of  a  drainage  district  is  within  the  pow- 
er of  the  state;  Hagar  v.  Reclamation  Dist* 
in  0.  s.  Tin.  4  Sup.  ct.  663,  28  L.  Ed.  569; 
for    the    exclusive    benefit    of    the    territory 


DRAINAGE  DISTRICT 


940 


DRAWING 


within  the  district;  Commissioners  of  Union 
Drainage  Dist  No.  3  v.  Com'rs,  220  111.  176, 
77  N.  E.  71 ;  and  the  lands  within  the  district 
may  be  assessed  to  pay  the  entire  cost,  on 
the  theory  that  they  alone  are  benefited; 
Bradbury  v.  Drainage  Dist,  236  111.  36,  86 
N.  E.  163,  19  L  R.  A.  (N.  S.)  991,  15  Ann. 
Cas.  904.  It  is  correct  to  say  that  a  drain- 
age district  is  a  quasi-corporation,  if  the 
act  under  which  it  is  organized  does  not 
make  it  a  corporation  in  fact;  but  it  is  not 
created  for  political  purposes  or  for  the  ad- 
ministration of  civil  government.  It  is  not 
liable  for  the  unauthorized  acts  of  its  com- 
missioners, but  the  district  has  the  power 
of  eminent  domain  for  the  purposes  of  its 
organization;  Bradbury  v.  Drainage  Dist, 
236  111.  36,  86  N.  E.  163,  19  L.  R.  A.  (N.  S.) 
991,  15  Ann.  Cas.  904.  They  have  been  class- 
ed as  municipal  corporations ;  Commissioners 
of  Havana  Tp.  Drainage  Dist.  No.  1  v.  Kel- 
sey,  120  111.  4S2,  11  N.  E.  256. 

Where,  in  the  construction  of  a  levee,  an 
upper  owner  was  damaged  by  having  the 
water  thrown  back  on  his  lands,  and  there 
was  no  negligence  on  the  part  of  the  district 
in  the  performance  of  the  work,  he  could 
not  recover ;  Bradbury  v.  Drainage  Dist.,  236 
111.  36,  86  N.  E.  163,  19  L.  R.  A.  (N.  S.)  991, 
15  Ann.  Cas.  904;  Lamb  v.  Reclamation 
Dist.,  73  Cal.  125,  14  Pac.  625,  2  Am.  St 
Rep.  775  (where  a  lower  owner  was  damag- 
ed by  overflow,  caused  by  the  necessary 
work  of  a  reclamation  district).  See  Police 
Powee  ;  Assessment  ;  Rivers. 

DRAM.  A  liquid  containing  alcohol ;  some- 
thing that  can  intoxicate.  Lacy  v.  State,  32 
Tex.  228.     See  Wright  v.  People,  101  111.  134. 

DRAW.  To  drag  (on  a  hurdle)  to  the 
place  of  execution.  Anciently  no  hurdle  was 
allowed,  bivt  the  criminal  was  actually  drag- 
ged along  the  road  to  the  place  of  execution. 
A  part  of  the  ancient  punishment  of  traitors 
was  to  be  thus  drawn.    4  Bla.  Com.  92,  377. 

DRAWBACK.  An  allowance  made  by  the 
government  to  merchants  on  the  re-exporta- 
tion of  certain  imported  goods  liable  to  du- 
ties, which  in  some  cases  consists  of  the 
whole,  in  others  of  a  part,  of  the  duties 
which  had  been  paid  upon  the  importation. 
Goods  can  thus  be  sold  in  a  foreign  market 
at  their  natural  cost  in  the  home  market. 
See  U.  S.  R.  S.  tit  34,  c.  9. 

DRAWEE.  A  person  to  whom  a  bill  of  ex- 
change is  addressed,  and  who  is  requested 
to  pay  the  amount  of  money  therein  men- 
tioned.   See  Bill  of  Exchange. 

DRAWER.  The  party  who  makes  a  bill 
of  exchange. 

DRAWING.  Every  person  who  applies 
for  a  patent  for  an  invention  is  required  to 
furnish  a  drawing  or  drawings  illustrative 
of  that  invention :  provided  from  the  na- 
ture of  the  case  the  invention  can  be  so  il- 


lustrated. Drawings  are  also  required  on 
application  for  a  patent  for  a  design.  See 
Patent. 

DRAW  LATCHES.  Thieves;       robbers. 

Cowell.     • 

DREDGE.  Formerly  applied  to  a  net  or 
drag  for  taking  oysters ;  now  a  machine  for 
cleansing  canals  and  rivers.  To  dredge  is 
to  gather  or  take  with  a  dredge,  to  remove 
sand,  mud,  and  filth  from  the  beds  of  rivers, 
harbors,  and  canals,  with  a  dredging  ma- 
chine.    15  Can.  L.  T.  268. 

DREIT  DREIT.  Droit  droit.  Double 
right.  A  union  of  the  right  of  possession  and 
the  right  of  property.    2  Bla.  Com.  199. 

DRENGAGE.  A  variety  of  feudal  tenure 
by  serjeanty  (q.  v.),  often  occurring  in  the 
northern  counties  of  England,  involving  a 
kind  of  general  service.  Vinogradoff,  Engl. 
Soc.  in  Eleventh  Cent.  62.  Little  is  known 
of  it ;  3  Holdsw.  Hist.  E.  L.  132. 

DRIFTWAY.  A  road  or  way  over  which 
cattle  are  driven.  1  Taunt.  279 ;  Selw.  N.  P. 
1037 ;  Woolr.  Ways  1.  The  term  is  in  use  in 
Rhode  Island.     2  Hilliard,  Abr.  Prop.  33. 

DRIP.  The  right  of  drip  is  an  easement 
by  which  the  water  which  falls  on  one  house 
is  allowed  to  fall  upon  the  land  of  another. 

Unless  the  owner  has  acquired  the  right  by 
grant  or  prescription,  he  has  no  right  so  to 
construct  his  house  as  to  let  the  water  drip 
over  his  neighbor's  land;  1  Rolle,  Abr.  107. 
See  3  Kent  436;  Dig.  43.  23.  4.  6;  11  Ad.  & 
E.  40. 

DRIVER.  One  employed  in  conducting  a 
coach,  carriage,  wagon,  or  other  vehicle  with 
horses,  mules,  or  other  animals. 

The  law  requires  that  a  driver  should  pos- 
sess reasonable  skill  and  be  of  good  habits; 
it,  therefore,  he  is  not  acquainted  with  the 
road  he  undertakes  to  drive ;  3  Bing.  314, 
321 ;  drives  with  reins  so  loose  that  he  can- 
not govern  his  horse;  2  Esp.  533;  does  not 
give  notice  of  any  serious  danger  on  the 
road;  1  Campb.  67;  takes  the  wrong  side  of 
the  road;  4  Esp.  273;  incautiously  comes  in 
collision  with  another  carriage;  1  Stark. 
423;  1  Campb.  167;  or  does  not  exercise  a 
sound  and  reasonable  discretion  in  travelling 
on  the  road  to  avoid  dangers  and  difficulties, 
and  any  accident  happens  by  which  any  pas- 
senger is  injured,  both  the  driver  and  his 
employers  will  be  responsible;  Barnes  v. 
Hurd,  11  Mass.  57 ;  6  Te-rm  659 ;  1  East  106 ; 
4  B.  &  Aid.  590;  Maury  v.  Talmadge,  2  Mc- 
Lean, 157,  Fed.  Cas.  No.  9,315. 

It  has  been  held  that  the  conductor  of  a 
street  railway  is  not  a  driver;  Isaacs  v.  R. 
Co.,  47  N.  Y.  122,  7  Am.  Rep.  418;  and  one 
who  drove  a  wagon  loaded  with  calves  and 
drawn  by  horses  was  held  not  to  be  "driving 
or  conducting"  cattle;  L.  R.  1  Q.  B.  259. 

DR0F-LAND   {Drift-land).     A  yearly  pay- 


DROF-LAND 


941 


DROITS  OP  ADMIRALTY 


rnent  made  by  some  to  their  landlords  for 
driving  their  cattle  through  the  manor  to 
fairs  and  markets.     Cowed. 

DROIT  (Fr.).  In  French  Law.  Law. 
The  whole  body  of  law,  written  and  unwrit- 
ten. 

A  right  No  law  exists  without  a  duty. 
Toullier,  n.  96;  Pothler,  Droit. 

In   English   Law.     Right     Co.   Litt   158. 

A  person  was  said  to  have  droit  droit,  plu- 
rimum    juris,    ami    pUirimum    posset 
when  he  had  the  freehold,  the  fee,  and  the 
property  in  him.    Crabb,  Hist.  B.  L  106. 

Recht,  Droit,  Diritto.-  These  terms  are  all 
closely  connected  with  each  other  and  with 
the  English  right.  The  French  and  Italian 
words  are  derivatives  of  the  Latin  directUS 
and  rectus,  these  being  cognate  with  recht 
and  right;    15  L.  Q.  R.  369. 

DROIT-CLOSE.     The   name  of  an   ancient 

writ  directed  to  the  lord  of  ancienl  de sne, 

and  which  lies  for  those  tenants  in  ancient 
demesne  who  hold  their  lauds  and  tenements 
by  charter  in  fee-simple,  in  foe-tail,  for  life, 
or  in  dower.     Fitzh.  N.  B.  23. 

DROIT  COUTUMIER.  In  French  Law. 
Common  law. 

DROIT  D'ACCESSION.  In  French  Law. 
That  property  winch  is  acquired  by  making 
a  new  form  out  of  the  material  of  another. 
The  civil  law  rule  is  that  if  the  thing  can 
be  reduced  to  the  former  matter  it  belongs  to 
the  owner  of  the  matter,  e.  g.  a  statue  made 
of  gold ;  but  if  it  cannot  so  he  reduced  it  he- 
longs  to  the  person  who  made  it.  e.  g.  a 
statue  made  of  marble.  This  subject  is 
treated  of  in  the  Code  Civil  de  NapoWon,  art. 
565,  577;  Merlin.  Rupert.  Accession;  Malle- 
ville's  Discussion,  art.  505.    See  Accession. 

DROIT   D'AUBAINE.     A  rule  by  which  all 

the  property  of  a  deceased  foreigner,  whether 
movable  or  Immovable,  was  confiscated  to  the 

use  of  the  state,  to  the  exclusion  of  his  heirs, 
whether  claiming  at)  intestuto  or  under  a  will 
of  the  deceased.  Finally  abolished  in  1819. 
Boyd's  Wheat.  Int.  Laws  §  S2. 

The  word  aubaine  signifies  hospes  loci,  perajrinus 
advena,  a  stranger.  It  is  derived,  according  to 
some,  from  alibi,  elsewhere,  natus,  born,  from  which 
the  word  albinus  is  said  to  be  formed.  Others,  as 
Cujas,  derive  the  word  directly  from  advena,  by 
which  word  aubains  or  strangers  are  designated  in 
the  capitularies  of  Charlemagne.  See  Du  Cange; 
TreAoux,    Diet. 

DROIT  DE  NAUFRAGE.  In  French  Law. 
The  right  of  a  seignleur,  who  owns  (lie  sea- 
shore, or  the  king,  when  a  vessel  is  w 
to  take  possession  of  the  wreckage  and  to 
kill  the  crew  or  sell  them  as  slaves.  1  I  Vale 
L.  Jour.  H.".). 

DROIT  NATUREL   (Fr.).     The  law  of  na- 
ture.      See   .lUKlSl'KUDENCE. 

DROITS  OF  ADMIRALTY.    Rights. claim- 
ed by  the  government  over  the  property  of 

an  enemy.  In  England,  it  lias  been  usual  in 
maritime  wa-rs  for  the  government  to   seize 


and   condemn,   as   droits   of   admiralty, 
property  of  an  ■  and  in  her  poi 

the   breaking   out   of   hostility 
196;    13  Yes.  71;    1  Edw.  •  '.  191. 

The  power  to  e:  ich  a  right  hfl 

been    delegated    to,    nor    has    it    i 
claimed   by,  the  aent; 

Benedict  Adm.  §  33;  Brown  v.  D.  S.,  8 
110,  3  i..  Ed.  504. 

The  droits  formerly  attaching  {•< 
Of    Lord    High    Admiral   C( 

jetsam,  ligan,  treas  . 

all  goods  picked  up  at  si 

-eons  and    all    BUCh    larg<  .    all  ships  and 

of  an   i  aemy   coming   Into   i  nj 
creek  or  road,  all  ships  seized  ■■■■' 
rage,  and  a  share  of  prizes.     2  Sel. 

Imer.  U  g.  Hist  318.    3  ■•    Droll 
of  the  High  Court,  1618   17   I 
15  L.  Q.   K.  359;    Marsden,  Admiralty,   D 
and   Salvage. 

For  a  ease  of  the  condemnation  to  the 
Crown  of  goods  taken  from  Convicted  pirates, 
see  l  W.  Rob.  r_':;. 

DROITS  CIVILS.     In   French   Law. 
Private  rights,  the  exercise  of  which  is  independ- 
ent  of   the    status  of   citizen.     Fori 
enjoy   them,    and   the   extent  of   that    enjoyi: 
determined    by    the    principle   of    reciprocity.      Con- 
versely,  foreigners,  although  not  resident  in  France, 
may  be  sued  on  contracts  made  by  them  in  France, 
and   (unless  possessed  of  sufficient  real   prof 
France)  are  obliged  to  give  security;    12  C.  B.  801; 
Brown,  Law  Diet. 

DROITURAL.  What  belongs  of  right ;  re- 
lating t<>  rlghl  :    as.  real  actions  are  either 

droitural  or  possessory, — droitural  when  the 
plaintiff     seeks     to     recover     the     property. 

Finch.  Law  L'">7.     See  Wkii  or  Kicht. 

DRUGGIST.  One  who  deals  in  medicinal 
substances,  ■•.  animal,  or  mineral,  un- 

compounded.  State  v.  Holmes,  28  La.  Ann. 
765,  -<i  Am.  Rep.  110. 

In  America  the  term  druccist  is  used  synony- 
mously with  apothecary,  although,  strictly  speak- 
ing, a  d  one  who  deals  in  medicinal  sub- 
stances, \  i  gi  table,  animal,  or  mineral,  before  being 
compound  (I,     while    composition    and    combination 

My  the  business  of  the  apothecary.    Tl. 
is  here  used  in  its  double  sense,  and  throughout  this 
article  is  to   be   read   as   If  druggist  or 

land    an    apothecary    was    formerly    a    sub- 
lan,    or   privileged    pra  lie    was    the 

ordinary  medical  man,  or  family  medical  attendant, 
in   that  country. 

Druggists  are  BubJSct  to  the  general  rule 
of    law    that    persons    who    hold    then 
out    to    the    world    as    possessing    skill    and 
qualifi  "  a   particular  trade  or  pro- 

fession an-  hound  to  reasonable  skill  and 
diligence  in  the  performance  of  their  duties. 
Accordingly  the  law  Implies  an  undertaking 
on  the  part  of  apothecaries  that  they  shall 
use  a  reasonable  ad  skill  in 

the  treatment  of  their  customers;  Chit 
Contr.  553;  Qwynn  v.  Duffleld,  66  la.  708,  -'» 
X.  W.  523,  55  Am.  Bep.  286;  Walton  v.  Booth, 
;:i  i. a.  Ann.  913;  Beckwlth  v.  Oatman,  43 
Hun  in.  v.i  265.  This  rule  is  probably 
more  strict  here  than  in   England;    Webh's 


DRUGGIST 


942 


DRUGGIST 


Poll.  Torts  26,  note.  A  druggist,  whether 
under  a  license  or  not,  holds  himself  out  as 
competent  for  that  business,  but  not  to  pre- 
scribe as  a  physician  ;  and  for  any  lack  of 
capacity  or  for  negligence,  he  is  answerable 
in  damages  to  the  person  injured,  the  same 
principles  of  law  applying  to  him  as  to  a 
medical  practitioner;  Bish.  Non-Contr.  L.  § 
716.  In  dispensing  poisons,  he  is  required  to 
exercise  the  highest  degree  of  care  for  the 
safety  of  his  customers;  Sutton's  Adm'r  v. 
Wood,  120  Ky.  23,  85  S.  W.  201,  8  Ann.  Cas. 
S94. 

Where  a  customer  asked  for  a  preparation 
for  a  specified  purpose  (corrosive  sublimate 
for  external  application  to  kill  lice)  and  the 
druggist  made  the  solution  so  strong  (85  per 
cent.)  as  to  cause  severe  injury,  he  was  held 
liable,  though  it  was  labelled  "Poison  Car- 
bolic Acid" ;  it  was  the  druggist's  duty  to 
give  proper  instructions ;  Goldberg  v.  Hege- 
man  &  Co.,  60  Misc.  107,  111  N.  Y.  Supp. 
679.  Where  a  solution  was  called  for  to 
cleanse  a  wound,  plaintiff  had  a  right  to  as- 
sume that  that  which  was  furnished  would 
be  at  least  harmless,  if  not  efficient,  and 
could  be  applied  without  further  injury ; 
Horst  v.  Walter,  53  Misc.  591,  103  N.  Y. 
Supp.  750. 

A  druggist  is  required  to  know  the  proper- 
ties of  the  medicines  he  sells  and  to  employ 
capable  assistants ;  Smith  v.  Hays,  23  111. 
App.  244;  it  is  no  defence  that  he  used  ordi- 
nary care;  Fleet  v.  Hollenkemp,  13  B.  Mon. 
(Ky.)  219,  56  Am.  Dec  563;  or  that  the 
clerk  who  negligently  put  up  the  prescription 
was  a  competent  pharmacist;  Burgess  v. 
Drug  Co.,  114  la.  275,  S6  N.  W.  307,  54  L.  R. 
A.  364,  89  Am.  St.  Rep.  359.  The  highest  de- 
gree of  skill  is  not  to  be  expected  nor  can 
it  reasonably  be  required  of  all ;  Simonds  v. 
Henry,  39  Me.  156,  63  Am.  Dec.  611. 

Perhaps  a  higher  degree  of  skill  than  is  the 
usual  rule  was  required  in  Fleet  v.  Hollen- 
kemp, 13  B.  Monr.  (Ky.)  219;  where  it  was 
held  that  any  mistake  made  by  the  druggist, 
if  the  result  of  ignorance  or  carelessness, 
renders  him  liable  to  the  injured  party; 
Thomas  v.  Winchester,  6  N.  Y.  397,  57  Am. 
Dec.  455.  Where  one,  whether  an  apothecary 
or  not,  negligently  gave  a  customer  poison 
and  the  customer  swallowed  it  and  was  in- 
jured, he  who  negligently  gave  the  poison 
was  guilty  of  a  tort,  and  liable  for  the  in- 
jury to  the  customer  unless  the  latter  was 
also  guilty  of  negligence  which  contributed 
to  the  injury;  Gwynn  v.  Duffield,  61  la.  64, 
15  N.  W.  594,  47  Am.  Rep.  802.  If  a  druggist 
negligently  sells  a  deadly  poison  as  a  harm- 
less medicine  to  A,  who  administers  it  to  B 
and  B  takes  it  as  a  medicine  and  dies  in  a 
few  hours  by  reason  thereof,  a  right  of  ac- 
tion against  the  druggist  survives  to  B's  ad- 
ministrator ;  Norton  v.  Sewall,  106.  Mass. 
143,  8  Am.  Rep.  298.  The  sale  of  an  article 
in  itself  harmless,  which  becomes  dangerous 
only  by  being  used  in  combination  with  some 


other  article,  without  any  knowledge  on  the 
part  of  the  vendor  that  it  was  to  be  used  in 
such  combination,  does  not  render  him  liable 
to  an  action  by  one  who  purchased  the  ar- 
ticle from  the  original  vendee  and  is  injured 
while  using  it  in  a  dangerous  combination, 
although  by  mistake  the  article  sold  was  dif- 
ferent from  that  which  was  intended  to  be 
sold;  Davidson  v.  Nichols,  11  Allen  (Mass.) 
514. 

A  druggist  who  sells  to  one  person  for  the 
use  of  another  a  hair  wash  made  by  himself 
and  represented  not  to  be  injurious,  is  liable 
to  the  person  for  whom  it  was  purchased 
when  used  as  directed,  for  injuries  arising 
from  such  use,  the  intended  use  by  the  third 
person  being  known  to  the  vendor ;  L.  R.  5 
Ex.  1.  The  maker  of  a  proprietary  medicine 
recommended  for  the  cure  of  a  certain  dis- 
ease, the  bottle  having  on  it  directions  for 
use,  who  sells  the  medicine,  so  put  up,  to  a 
druggist,  is  liable  to  one  who  buys  it  from 
the  druggist  and  is  injured  by  its  use  accord- 
ing to  the  directions  on  the  bottle ;  Blood 
Balm  Co.  v.  Cooper,  S3  Ga.  457,  10  S.  E.  118, 
5  L.  R.  A.  612,  20  Am.  St.  Rep.  324. 

Where  a  druggist  selling  a  poisonous  med- 
icine, fully  and  clearly  warned  the  person 
of  its  nature  and  gave  him  accurate  direc- 
tions as  to  the  quantity  which  he  could  safe- 
ly take,  and  the  person  was  injured  or  killed 
by  taking  an  overdose  in  disregard  of  the  di- 
rections, the  druggist  is  not  liable  for  negli- 
gence simply  because  he  failed  to  put  a  label 
marked  "Poison"  on  the  package  as  direct- 
ed by  statute.  The  customer  disregarding 
the  warning  and  direction  of  the  vendor  was 
guilty  of  negligence;  Wohlfahrt  v.  Beckert, 
92  N.  Y.  490,  44  Am.  Rep.  406. 

An  unlicensed  druggist  who  conducts  a 
drug  store  cannot  escape  the  penalty  of  the 
law  for  the  unlawful  sale  of  intoxicating 
liquors  by  showing  that  the  sales  were  made 
for  medicinal  purposes  by  his  clerk,  who  was 
a  licensed  pharmacist;  State  v.  Norton,  67 
la.  641,  25  N.  W.  842.  A  druggist  is  not  lia- 
ble if  he  compounds  carefully  another's  pre- 
scription ;  Ray  v.  Burbank,  61  Ga.  505,  34 
Am.  Rep.  103.  But  if  he  sell  one  medicine 
for  another  and  an  injury  result  therefrom, 
it  is  no  defence  for  him  to  show  that  the  case 
was  negligently  treated;  Brown  v.  Marshall, 
47  Mich.  576,  11  N.  W.  392,  41  Am.  Rep.  728. 
An  apothecary,  if  guilty  of  criminal  negli- 
gence, and  fatal  results  follow,  may  be  con- 
victed of  manslaughter ;  1  Lew.  Cr.  Cas.  169. 
See  Physician. 

DRUGS.  Substances  used  in  the  composi- 
tion of  medicines  or  in  dyeing  and  in  chem- 
ical operations.    Webst.  Diet. 

"Drugs  and  Medicines,"  when  used  in  in- 
surance policies,  include  saltpetre ;  Collins  v. 
Ins.  Co.,  79  N.  C.  279,  28  Am.  Rep.  322.  It  is 
a  question  of  fact  wnether  benzine  is  a  drug; 
Carrigan  v.  Ins.  Co.,  53  Vt  418,  38  Am.  Rep. 
687. 


DRUGS 


948 


Wlrere  a  druggist  was  charged  with  sell- 
ing peppermint  lozenges  on  Sunday,  it  ap- 
■:  that  the  statute  permitted  the*  sell- 
ing of  "drugs  and  medicines"  on  that  day. 
They  were  held  prima  facie  within  1 1 1 - 
ute;  33  D.  C.  Q.  B.  543.  So  a  mixture  of 
rosewater  and  prussic  acid  to  be  used  as  a 
lotion  is  within  the  same  terms;  L.  It.  4  Q. 
B.  296. 

For  pure  food  and  drug  law,  see  Foon  and 
Drugs. 

DRUMMER.  A  travelling  salesman.  One 
who  solicits  custom.  Thomas  v.  City  of  Hot 
Springs,  34  Ark.  553,  36  Am.  Rep.  34.  "Com- 
mercial agents  who  arc  travelling  for  whole- 
sale merchants  and  supplying  the  retail 
trade  with  goods,  or  rather,  taking  orders  for 
goods  to  he  shipped  to  the  retail  merchant." 
singleton  v.  Fritsch,  4  Lea  (Tenn.)  '.•:;.  See 
Commercial  Traveller;    Commence. 

DRUNKENNESS.  In  Medical  Jurispru- 
dence. The  condition  of  a  man  whose  mind 
is  affected  by  the  immediate  use  of  Intoxicat- 
ing drinks. 

This  condition  presents  various  degrees  of  in- 
tensity, ranging  from  a  simple  exhilaration  to  a 
state  of  utter  unconsciousness  and  lity.    In 

the  popular  phrase,  the  term  drunkenness  is  applied 
only  to  those  degrees  of  it  in  which  the  mind  is 
manifestly  disturbed  in  its  operations.  In  the  earli- 
er stages  it  frequently  happens  that  the  mind  is  not 
only  not  disturbed,  but  acts  with  extraordinary 
clearness,  promptitude,  and  vigor.  In  the  latter  the 
thoughts  obviously  succeed  one  another  without 
much  relevance  or  coherence,  the  perceptive  facul- 
ties are  active,  but  the  impressions  are  miscon- 
ceived, as  if  they  passed  through  a  distorting  me- 
dium, and  the  reflective  powers  cease  to  act  with 
any  degree  of  efficiency.  Some  of  the  intermediate 
stages  may  be  easily  recognized  ;  but  it  is  not  al- 
ways possible  to  fix  upon  the  exact  moment  when 
they  succeed  one  another.  In  some  persons  pecul- 
iarly constituted,  a  fit  of  intoxication  presents  few 
if  any  of  these  successive  stages,  and  the  mind  rap- 
idly loses  its  self-control,  and  for  the  time  is  actu- 
ally frenzied,  as  if  in  a  maniacal  paroxysm,  though 
the  amount  of  the  drink  may  be  comparatively 
small.  The  same  phenomenon  is  observed  some- 
times in  persons  who  have  had  some  injury  of  the 
head,  who  are  deprived  of  their  reason  by  the 
slightest    indulgence. 

The  habitual  abuse  of  Intoxicating  drinks  Is  usu- 
ally followed  by  a  pathological  condition  of  the 
brain,  which  is  manifested  by  a  degree  of  int.  Hi  ctu- 
al  obtuseness,  and  some  Insensibility  to  moral  dis- 
tinctions once  readily  discerned.  The  mind  Is  more 
exposed  to  the  force  of  foreign  influences,  and  more 
readily  induced  to  regard  things  in  the  light  to 
which  others  have  directed  them.  In  others  it  pro- 
duces a  permanent  mental  derangement,  wl 
the   person   continue  to   Indul  i!y  mistaken 

by   common  observers   for   the    immediate   el 
hard  drinking.     These  two  results— the  mediate  and 
the    immediate    effects    of    drinking— may    coexist; 
but  it  is  no  less  necessary  to  distlnguli  li  them  from 
each  other,  because  their  legal  (•<•■  may  be 

very  different.  Moved  by  the  latter,  a  person  goes 
into  the  street  and  abuses  or  assaults  his  Del 
moved  by  the  former,  the  same  person  makes  his 
will,  and  cuts  off  with  a  shilling  those  who  have  the 
strongest  claims  upon  his  bounty.  In  a  Judicial  in- 
vestigation, one  class  of  witnesses  will  attribute  all 
his  extravagances  to  drink,  while  another  will  see 
nothing  in  them  but  the  effect  of  insanity.  The 
medical  jurist  should  not  be  misled  by  either  party, 
but  be  able  to  refer  each  particular  act  to  Its  prop- 
er source. 


Drunkenness  may  be  the  result  of  dipsomania. 
Rather  suddenly,  and  perhaps  without  much  prelim- 
inary indulgence,  ;.  ts  an  insatiable 
thirst  t  ...us  of 
propriety  or  prudence  can  induce  him  to  control. 
He  generally  retires  to  some  secluded  place,  and 
there,  during  a  period  of  a  few  days  or 
swallows  enormous  quantities  of  liquor,  until  bis 
stomach   refuses   to   bear  any  more.     Vomiting   suc- 

: ollowed  by  sick! 
for  all    Intoxicating  drinks.     This  affection   Is  often 
periodical,    the    pal  urriug   at 

rylng  from  three    I 

times  the  Indulgence  Is  more  and  limit- 

ed,  sufficient,   however,   to  d<  :  'nind.   with- 

out producing  b!<  kuess,  and  < 
aula   may   result  from 
anxiety,   disappointment,    grli 

hility  ;    or  phj  •  chiefly  of  some  anom- 

alous   condition    of    the    stomach.      Bsqulrol,     Mai. 
M.  n.   ii.  7:;  ;   Mare.    :  !.  Jur. 

•107 ;    Macnisb,  Anatomy  of  Drunkenness,  cha; 

The  Common  law  showed  hut  little  dispo- 
sition to  afford  relief,  either  in  civil  or  crim- 
inal cases,  from  tin-  immediate  effects  . . f 
drunkenness.  It  has  never  considered  that 
mere  drunkenness  alone  as  a  sufficient  rea- 
son for  Invalidating  any  act.  In  Crane  v. 
Conklin,  l  N.  .1.  Eq.  ::i<;.  22  Am.  Dec  519, 
it  was  said  that  the  early  cases  held  that 
relief  could  not  he  granted  against  a  con- 
tract made  by  one  who  was  Intoxicated,  un- 
less the  Intoxication  was  brought  about  by 
the  other  party,  hut  that  that  rule  had  been 
changed;  that  courts  will  not  interfere  to 
assist  a  person  on  the  ground  of  Intoxication 
merely,  hut  will,  if  any  unfair  advantage 
sen  taken  of  bis  situation.  To  the  same 
effect,  Baird  v.  Howard,  51  Ohio  St.  57,  36 
N.  K.  732,  22  L.  It.  A.  840,  4«;  Am.  St. 
550,  but  such  contracts  have  been  held  void 
where  it  appeared  that  actual  Intoxication 
dethroned  the  reason  or  that  the  party's 
understanding  was  so  unpaired  as  to  r 
him  mentally  unsound;  IUirnham  v.  Barn- 
ham,   U!)  Wis.  509,  '.IT  N.   W.    17-;.   LOO  Am.   St. 

Rep.  895;  Wright  v.  Fisher,  65  Mich.  275,  32 
N.  W.605,8  Am.  St  Rep.  886 ;  that  the  drunk- 
enness must  have  been  BUCh  as  to  have 
drowned  reason,  memory  and  judgment  and 
to  have  impaired  the  mental  facull 
such  an  extent  as  to  render  the  party  QOD 
Compos  mentis  for  the  time  being;  Martin 
v.  Harsh,  -•'■!  111.  384,  83  \.  B.  164,  '.::  I.,  l: 
A.  (N.  S.i  1000;  that  at  the  time  the  party 
did  not  fully  anderatand  the  nature  of  the 
transaction;  7  Idaho  292;  that  the  party 
was  Incapable  of  knowing  or  understanding 
the  nature  or  quality  of  the  act  ;  BentOD  v. 
Sikyta,  m  -    122  v  W.  61,  '-' I   L  B, 

A.    ( N.    S.i    1057;  titute   <>f   reason   as 

not    to    know    t 

tract ;  Fowler  v.  Water  Co,  208  Pa. 
Ail.  959;  Incapable  Of  knowing  what  1. 

ik  v.  Timber  <'"..  7s  Ark.    17,  94 
S.   W.  695,  8  -Mm.  fas.  251. 

it  has  been  held  that  there  must  be 
give  "f  drunkenness  which  may  he  called  ex- 
cessive, where  a  party  is  bo  far  deprived  of 
his  reason  as  to  render  him  incapable  of  uu- 
indlng   the  consequences  of  his  act;   J. 


DRUNKENNESS 


944 


DRUNKENNESS 


I.  Case  Threshing  Mach.  Co.  v.  Meyers,  78 
Neb.  GS5,  111  N.  W.  602,  9  L.  R.  A.  (N.  S.) 
970;  Conant  v.  Jackson,  16  Vt.  335;  Johns 
v.  Fritchey,  39  Md.  258;  Reynolds  v.  De- 
chaums,  24  Tex.  174,  76  Am.  Dec.  101 ;  Tay- 
lor v.  Purcell,  60  Ark.  606,  31  S.  W.  5G7 ; 
Kuhlman  v.  Wieben,  129  la.  188,  105  N.  W. 
445,  2  L.  R.  A.  (N.  S.)  666;  Druimnond  v. 
Hopper,  4  Harr.  (Del.)  327;  Fowler  v.  Wa- 
ter Co.,  208  Pa.  473 ;  or  where  it  is  of  such 
a  degree  as  to  make  his  mind  similar  to  that 
of  an  idiot  or  a  lunatic ;  Harbison  v.  Lemon, 
3  Blackf.  (Ind.)  51,  23  Am.  Dec.  376;  when 
he  is  in  such  a  condition  as  to  be  unable  to 
understand  the  nature  of  the  transaction; 
Ryan  v.  Schutt,  135  111.  App.  554;  or  is  de- 
prived entirely  of  his  reason;  Bing  v.  Rank, 

5  Ga.  App.  578,  63  S.  E.  652.  It  must  be  so 
extreme  that  the  party  sought  to  be  charged 
was  incapable  of  assenting ;  Wade  v.  Colvert, 
2  Mill,  Const.  (S.  C.)  26,  12  Am.  Dec.  652; 
because  the  very  essence  of  a  contract  is 
the  assent  of  the  party;  id.;  Longhead  v. 
Commission  Co.,  64  Mo.  App.  559.  That  one 
may  plead  his  intoxication  in  avoidance  of 
a  contract  is  held  in  Johnson  v.  Harmon,  94 
U.  S.  371,  24  L.  Ed.  271. 

The  leading  English  case  is  13  M.  &  W. 
623,  which  holds  that  there  is  a  class  of  con- 
tracts from  which  a  party  cannot  be  releas- 
ed, even  by  proof  of  complete  drunkenness 
at  the  time  they  were  entered  into.  This 
class  embraces  transactions  where  the  law 
raises  the  assent  essential  to  their  execution, 
such  as  actions  for  money  had  and  received 
to  the  plaintiff's  use,  or  paid  by  him  to  the 
defendant's  use.  So  a  tradesman  who  sup- 
plies a  drunken  man  with  necessaries  may 
recover  the  price  of  them  if  the  party  keeps 
them  when  he  becomes  sober,  although  a 
count  for  goods  bargained  and  sold  would 
fail.  The  contract  may  be  ratified  by  him 
when  he  becomes  sober;  L.  R.  8  Exch.  132, 
where  it  was  said  that  the  judges  in  13  M. 

6  W.  623,  used  the  word  void,  but  that  they 
did  not  mean  absolutely  void,  but  only  that 
a  drunken  man's  contract  could  not  be  en- 
forced against  his  will,  not  that  it  was  in- 
capable of -ratification.  To  the  same  effect, 
McClure  v.  Mausell,  4  Brewst.  (Pa.)  119; 
Birmingham  Ry.,  Light  &  Power  Co.  v.  Hin- 
ton,  158  Ala.  470,  48  South.  546;  Eaton's 
Adm'r  v.  Perry,  29  Mo.  96;  Brockway  v. 
Jewell,  52  Ohio  St.  187,  39  N.  E.  470  (hold- 
ing that  a  drunken  man  may  be  bound  on  an 
implied  contract). 

The  contract  of  a  drunken  man  is  not  void 
but  voidable  only;  8  Am.  Rep.  251,  note. 
See  also  1  Ames,  Cas.  on  Bills  and  Notes 
558;  Carpenter  v.  Rodgers,  61  Mich.  384,  28 
N.  W.  156,  1  Am.  St.  Rep.  595;  see  Rice  v. 
Peet,  15  Johns.  (N.  Y.)  503;  Joest  v.  Wil- 
liams, 42  Ind.  565,  13  Am.  Rep.  377;  Bates 
v.  Ball,  72  111.  108.  The  party  must  rescind 
the  contract  within  a  reasonable  time  after 
recovery;  Fowler  v.  Water  Co.,  208  Pa.  473, 


57  Atl.  959;  Shaw  v.  R.  Co.,  126  App.  Div. 
210,  110  N.  Y.  Supp.  362 ;  Kelly  v.  R.  Co.,  154 
Ala. .  573,  45  South.  906 ;  Case  Threshing 
Mach.  Co.  v.  Meyers,  78  Neb.  685,  111  N.  W. 
602,  9  D.  R.  A.  (N.  S.)  970.  If  a  person 
when  sober  agree  to  sign  a  contract,  he  can- 
not avail  himself  of  intoxication  at  the  time 
of  signature  as  a  defence;  Strickland  v.  Par- 
lin  &  Orendorf  Co.,  118  Ga.  213,  44  S.  E.  997 ; 
Fagan  v.  Wiley,  49  Or.  480,  90  Pac.  910. 
When  carried  so  far  as  to  deprive  the  party 
of  all  consciousness,  a  strong  presumption 
of  fraud  is  raised  ;  and  on  that  ground  courts 
may  interfere ;  1  Ves.  19 ;  18  id.  12  ;  Thackrah 
v.  Haas,  119  U.  S.  499,  7  Sup.  Ct.  311,  30  L. 
Ed.  486;  Jones  v.  McGruder,  87  Va.  360,  12 
S.  E.  792.  In  equity  it  is  not  so  much  the 
drunkenness  of  one  party  as  the  fraud  and 
imposition  of  the  other;  Cook  v.  Bagnell 
Timber  Co.,  78  Ark.  47,  94  S.  W.  695,  8  Ann. 
Cas.  251 ;  Calloway  v.  Witherspoon,  40  N.  C. 
128.  Drunkenness  in  such  a  degree  as  to 
render  the  testator  unconscious  of  what  he 
is  about,  or  less  capable  of  resisting  the  in- 
fluence of  others,  avoids  a  will ;  Shelf.  Lun. 
274,  304;  Dimond's  Estate,  3  Pa.  D.  R.  554; 
but  not  if  at  the  time  the  testator  could  com- 
prehend the  nature  of  his  act;  Bannister  v. 
Jackson,  45  N.  J.  Eq.  702,  17  Atl.  692. 

In  actions  for  torts,  drunkenness  is  not 
regarded  as  a  reason  for  mitigating  damag- 
es; Co.  Litt.  247  a;  Webb,  Poll.  Torts  59,  n. 
See  Hanvey  v.  State,  68  Ga.  612.  Courts  of 
equity,  too,  have  declined  to  interfere  in  fa- 
vor of  parties  pleading  intoxication  in  the 
performance  of  some  civil  act ;  but  they  have 
not  gone  the  length  of  enforcing  agreements 
against  such  parties;  1  Story,  Eq.  §  232; 
Youn  v.  Lamont,  56  Minn.  216,  57  N.  W. 
478;  18  Ves.  Jr.  12;  1  Ves.  19.  "A  drunk- 
ard who  is  voliintarius  daemon,"  says  Coke, 
"hath  no  privilege  thereby:  Whatever  ill 
or  hurt  he  doth,  his  drunkenness  doth  ag- 
gravate it."  Lawyers  have  occasionally 
shown  a  disposition  to  distinguish  between 
the  guilt  of  one  who  commits  an  offence  un- 
consciously, though  in  consequence  of  vicious 
indulgence,  and  that  of  another  who  is  ac- 
tuated by  malice  aforethought  and  acts  de- 
liberately and  coolly.  In  Pennsylvania,  as 
early  as  1794,  it  was  remarked  that,  as 
drunkenness  clouds  the  understanding  and 
excites  passion,  it  may  be  evidence  of  pas- 
sion only,  and  of  want  of  malice  and  design ; 
Add.  Pa.  257.     See  Meyers  v.  Com.,  83  Pa. 

144.  In  1819,  Justice  Holroyd  decided  that 
the  fact  of  drunkenness  might  be  taken  into 
consideration  in  determining  the  question 
whether  the  act  was  premeditated  or  done 
only  with  sudden  heat  and  impulse ;  Rex  v. 
Grundley,  1  Russ.  Cr.  8.  This  particular  de- 
cision, however,  was,  a  few  years  afterwards, 
pronounced*  to  be  not  correct  law ;  7  C.  &  P. 

145.  Again,  it  was  held  that  drunkenness, 
by  rendering  the  party  more  excitable  un- 
der provocation,  might  be  taken  into  consid- 


DRUNKENNESS 


945 


DKL  NKENNESS 


eration  in  determining  the  sufficiency  of  the 
provocation;  7  C.  &  P.  817.  In  Rex  v.  Monk- 
house,  4  Cox,  Cr.  Cas.  55,  it  was  declared 
that  there  might  exist  a  state  of  drunken- 
ness which  takes  away  the  power  of  form- 
ing any   specific  intention. 

In  this  country,  courts  have  gone  still 
further  in  regarding  drunkenness  as  lncom- 
patihle  with  some  of  the  elements  of  crime. 
It  has  heen  held,  where  murder  was  defined 
to  be  wilful,  deliberate,  malicious,  and  pre- 
meditated killing,  that  the  existence  of  these 
attributes  is  not  compatible  with  drunken- 
ness; State  v.  Bullock,  1.°,  Ala.  41.".;  Swan  v. 
State,  4  Humphr.  (Tenn.  i  136;  llaile  v. 
State,  11  Humphr.  (Tenn.)  154;  State  v. 
McCants,  1  Speers  (S.  C.)  384;  and  when  a 
mans  intoxication  is  so  great  as  to  render 
him  unable  to  form  a  wilful,  deliberate,  and 
premeditated  design  to  kill,  or  of  judging  of 
his  acts  and  their  legitimate  consequences, 
then  it  reduces  what  would  otherwise  be 
murder  in  the  first  degree  to  murder  in  the 
second  degree ;  People  v.  Harris,  29  Cal.  GTS ; 
Coui.  v.  Jones,  1  Leigh  (Va.)  612;  People  v. 
Robinson,  2  Park  C.  R.  (N.  Y.)  235;  Ayres 
v.  State  (Tex.)  2G  S.  W.  390;  Mooney  v. 
State,  33  Ala.  419;  State  v.  Johnson,  41 
Conn.  584;  Rafferty  v.  People,  GG  111.  118; 
Jones  v.  Com.,  75  Pa.  403.  See  Bernhardt 
v.  State,  82  Wis.  23,  51  N.  W.  1009;  State 
v.  Zorn,  22  Or.  591,  30  Pac.  317;  People  v. 
Vincent,  95  Cal.  425,  30  Pac.  581.  But  where 
one  who  intends  to  kill  another  becomes  vol- 
untarily intoxicated  for  the  purpose  of  car- 
rying out  the  intention,  the  intoxication  will 
have  no  effect  upon  the  act;  Garner  v.  State, 
28  Fla.  113,  9  South.  835,  29  Am.  St.  Rep. 
232;  Springfield  v.  State,  9G  Ala.  81,  11 
South.  250,  38  Am.  St.  Rep.  85.  See  People 
v.  Young,  102  Cal.  411 ;  36  Pac.  770 ;  and  if 
one  person  gets  another  drunk  and  per- 
suades him  to  commit  a  crime,  he  is  legally 
responsible ;  McCook  v.  State,  91  Ga.  740,  17 
S.  E.  1019. 

Intoxication  does  not  excuse  crime,  but 
may  show  an  absence  of  malice;  Wilkerson 
v.  Com.,  88  Ky.  29,  9  S.  W.  83G,  10  Ky.  L. 
Rep.  656;  Engelhardt  v.  State,  88  Ala.  100, 
7  South.  154;  and  the  burden  of  proof  is  on 
the  defendant  to  show  intoxication  to  such 
an  extent  as  to  render  him  incapable  of  mal- 
ice; State  v.  Hill.  46  La.  Ann.  27,  14  South. 
294,  49  Am.  St.  Rep.  316. 

If  one  commits  robbery  while  so  drunk  as 
not  to  know  what  be  was  doing,  he  will  not 
bo  deemed  to  have  taken  the  property  with  a 
felonious  intent;  Keeton  v.  Com.,  92  Ky.  522, 
18  S.  W.  359. 

It  has  been  already  stated  that  strong 
drink  sometimes,  in  consequence  of  injury 
to  the  head,  or  some  peculiar  constitutional 
susceptibility,  produces  a  paroxysm  of  fren- 
zy immediately,  under  the  influence  of  which 
the  person  commits  a  criminal  act.  Cases  of 
this  kind  have  been  too  seldom  tried  to  make 
it  quite  certain  how  they  would  he  regarded 
Bouv.— 60 


in   law.      It   is   probable,   however,   that    the 
plea  of  insanity  would  be  deprived  of  its  \u- 
lidity    by   the  fact   that,   sane   or   Insane,  the 
party    was    confessedly    drunk.      In    a 
where  injury  of  the  head  bad  been  foil 

astonal  \>:  :  nsanity,  in  one 

of  which  the  prisoner  I  Hied  '::        I  e   :t  ap- 
peared  that  he  bad  Just  been  dri 
that  Intoxicat  Ion  bad  som<   I  ght  on 

the  paroxysms,  though  they  m 

ed  by  drinking.     The  court   ruled  that 
if  the  mental  disturbance  wen-  pi 
intoxication  it,  was  not  a  valid  defence;  and 
accordingly  the  prisoner  was  convicted  and 
executed.     Trial   of   M'Donough,    Ray, 
Jur.  514.     The  principle  is  that  if  a  i  i 
voluntarily   deprives   himself   of   reason,   he 
can  claim  no  exemption  from  the  ordinary 
consequences  of  crime;  3  Par.  ft  FonbL  Med. 
J.  39;  and  the  courts  hold  that  voluntary  In- 
toxication is  no  justification  or  excuse  for 
crime;  State  v.  O'Neil,  51   Kan.  651,  33 
I'M.  24  L.  R.  A.  555;  People  v.  Bell,   ' 
485;   state  v.  Bullock,  13  Ala.  413 
State,  55  6a.  31  :  state  v.  Tatro,  50  vt.  483; 
Colbath    v.    State,    4    Tex.    App.    76.      Milder 
views    have   been    advocated    by   writers   of 
note,    and    have    appeared    in    judicial    d<  i  i 
sinus.    Alison,  referring  to  the  class  of 
just  mentioned,  calls  it  inhuman  to  visit  them 
with  the  extreme  punishment  otherwise  suit- 
able.    Prin.   of  Crim.  Law  of   Scotland  654. 
See,  also.  23  Am.  Jur.  290.     When  a  defend- 
ant sets  up  the  defence  of  delirium   t>< 
and   there  is  evidence  to   support   the 
the  court  in  charging  the  jury  is   bound   to 
set  forth   the  law  applicable  to   such   a  de- 
fence; 12  Rep.  701.    This  disease  is  a  species 
of  insanity,  and  one  who  labors  under  it  is 
not  responsible  for  his  acts:  l  Wh.  ft  Still-'. 
Med.  Jur.  §  202.     While  drunkenness  is  no 
excuse  for  crime,  mania  a  /»</»  is:   SI 
Potts,  100  N.  C.  457,  6  s.  K.  657.    See  People 
v.  Williams,  42  Cal.  344;  Fisher  v.  Stat 
Ind.  435;  Lanergan  v.  People,  50  Barb.   (N. 
Y. »    L'<'.t'..      Where   dipsomania   affects  the   in- 
tellect and  not  merely  the  will,  it  may   be  a 
defence;    3   Witth.   ft   Beck.   Med.   Jur 

anigan  v.  People,  86  N.  Y.  559,   I 
Rep.  556;   People  v.   I.eary,  105  Cal.   48 
Pac.   24.     Where  a  person,   in   regard 
particular  act,    though    knowing   right    from 
wrong,   has  lost  his  power  to  discriminate, 
in  consequence  of  mental  disease,  he  will  be 
exempt   from  crime;    3  Witth.   ft    Beck.   507. 
See  State  v.  McDanlel,  115  N.  C.  B07,  20  S. 
E.    622.      Dipsomania    would    hardly   be  con- 
sidered, in  the  present  state  of  Judicial  opin- 
ion, a  valid  defence  in  a  capital  case,  though 
there  have  been  decisions  which  have  allow- 
ed it.  holding  the  question  whether  there  is 
such    a    disease,    and    whether    the    act    was 

committed  under  its   influence,   to   be  ques- 
tions Of  fact  for  the  jury;   State  v.  Pike,  49 
X.  11.  399,  6  Am.  Hep.  533;  state  v.  Johnson. 
|u  i  ,,uii.   136;   1   Bish.  Cr.  Law  §  409. 
The  law  does  recognize  two  kinds  of  in- 


DRUNKENNESS 


946 


DUE 


culpable  drunkenness,  viz.:  that  which  is 
produced  by  the  "unskilfulness  of  the  physi- 
cian," and  that  which  is  produced  by  the 
"contrivance  of  enemies."  Russ.  Cr.  8.  To 
these  there  may  perhaps  also  be  added  that 
above  described,  where  the  party  drinks  no 
more  liquor  than  he  has  habitually  used 
without  being  intoxicated,  but  which  exerts 
an  unusually  potent  effect  on  the  brain,  in 
consequence  of  certain  pathological  condi- 
tions. See  Com.  v.  Whitney,  5  Gray  (Mass.) 
S6;  1  Benn.  &  H.  Lead.  Cr.  Cas.  113.  See 
Insanity  ;   Delirium   Tremens. 

DRY  EXCHANGE.  A  term  invented  for 
disguising  and  covering  usury,— in  which 
something  was  pretended  to  pass  on  both 
sides,  when  in  truth  nothing  passed  on  one 
side ;  whence  it  was  called  dry.  Stat.  3  Hen. 
VII.  c.  5 ;  Wolffius,  Ins.  Nat.  §  657. 

DRY  RENT.  Rent-seek;  a  rent  reserved 
without  a  clause  of  distress. 

DRY  TRUST.  A  passive  trust;  one  which 
requires  no  action  on  the  part  of  the  trustee 
beyond  turning  over  the  money  or  property 
to  the  cestui  que  trust.  Black,  L.  Diet.  See 
Trust. 

DUBITANTE.  Doubting.  Affixed  in  law 
reports  to  a  judge's  name,  to  signify  that  he 
doubts  the  correctness  of  a  decision. 

DUCAT.    The  name  of  a  foreign  coin. 

The  ducat,  or  sequin,  was  originally  a  gold  coin  of 
the  middle  ages,  apparently  a  descendant  from  the 
bezant  of  the  Greek-Roman  Empire.  For  many 
centuries  it  constituted  the  principal  international 
currency,  being  intended,  or  supposed,  to  be  made 
of  pure  gold,  though  subsequently  settled  at  a  basis 
a  little  below.  It  is  now  nearly  obsolete  in  every 
part  of  the  world.  Its  average  value  is  about  $2.26 
of  our  money.  It  is  said  they  appeared  earliest  in 
Venice,  and  that  they  bore  the  following  motto: 
Sit  tibi,  Christe,  datus,  quern  tu  regis,  iste  Ducatus 
(Let  this  Duchy  which  thou  rulest  be  dedicated  to 
thee,  O  Christ)— whence  the  name  ducat. 

The  silver  ducat  was  formerly  a  coin* of  Naples, 
weighing  three  hundred .  and  forty-eight  grains, 
eight  hundred  and  forty-two  thousandths  fine  ;  con- 
sequent value,  in  our  money,  about  eighty-one 
cents ;  but  it  now  exists  only  as  a  money  of  account. 

DUCES   TECUM    LICET    LANGUIDUS.     A 

writ  directing  the  sheriff  to  bring  a  person 
whom  he  returned  as  so  sick  that  he  could 
not  be  brought  without  endangering  his  life. 
Cowell.     Now  obsolete. 


DUCKING-STOOL.  A  stool  or  chair  in 
which  common  scolds  were  formerly  tied 
and  plunged  into  water.  The  ducking-stool 
is  mentioned  in  the  Domesday  Book ;  it  was 
extensively  in  use  throughout  Great  Britain 
from  the  fifteenth  till  the  beginning  of  the 
eighteenth  century.  Cent.  Diet.  The  last 
recorded  instance  in  England  was  in  1809. 
See  Castigatory;  Punishment. 

DUE.  Just  and  proper,  as  due  care,  due 
rights.  Ryerson  v.  Boorman,  8  N.  J.  Eq.  701 ; 
Jones  v.  Inhabitants  of  Andover,  10  Allen 
(Mass.)  18;  Butterfield  v.  Western  R.  Corp., 
10  Allen   (Mass.)    532,  87  Am.  Dec.  678.     A 


due  presentment  and  demand  of  payment 
must  be  made.  See  Bank  of  Pennsylvania  v. 
McCalmont,  4  Rawle  (Pa.)  307;  Collins's 
Adm'x  v.  Janey,  3  Leigh  (Va.)  389;  Siinms 
v.  Slacum,  3  Cra.   (U.  S.)   300,  2  L.  Ed.  446. 

What  ought  to  be  paid;  what  may  be  de- 
manded. 

It  differs  from  owing  in  this,  that  sometimes  what 
is  owing  is  not  due:  a  note  payable  thirty  days 
after  date  is  owing  immediately  after  it  is  delivered 
to  the  payee,  but  it  is  not  due  until  the  thirty  days 
have  elapsed.  But  see  Allen  v.  Patterson,  7  N.  Y. 
476,  57  Am.  Dec.  542  ;  Scudder  v.  Scudder,  10  N.  J. 
L.  340  ;  U.  S.  v.  Bank  of  North  Carolina,  6  Pet.  (U. 
S.)   36,  8  L.  Ed.  308. 

The  word  "due,"  unlike  "arrears,"  has 
more  than  one  signification,  and  expresses 
two  distinct  ideas.  At  times  it  signifies  a 
simple  indebtedness  without  reference  to 
the  time  of  payment ;  at  others  it  shows  that 
the  day  of  payment  has  passed;  Wiggin  v. 
Knights  of  Pythias,  31  Fed.  125;  Scudder  v. 
Scudder,  10  N.  J.  L.  345. 

DUE-BILL.  An  acknowledgment  of  a 
dent  in  writing.  This  instrument  differs 
from  a  promissory  note  in  many  particulars : 
it  is  not  payable  to  order,  nor  is  it  assigna- 
ble by  mere  indorsement.  Byles,  Bills  *11, 
n.   (t).     See  I.  O.  U. ;  Promissory  Notes. 

DUE  CARE.  Reasonable  care  adapted  to 
the  circumstances  of  the  case.  Butterfield  v. 
Western  R.  Corp.,  10  Allen  (Mass.)  532 ;  Bal- 
timore &  P.  R.  Co.  v.  State,  54  Md.  656.  See 
Bailment;  Negligence. 

DUE  COURSE  OF 'LAW.  This  phrase  is 
synonymous  with  "due  process  of  law,"  or 
"the  law  of  the  land,"  and  means  law  in  its 
regular  course  of  administration  through 
courts  of  justice.  Kansas  Pac.  Ry.  Co.  v. 
Dunmeyer,  19  Kan.  542.  But  see  Due  Pro- 
cess of  Law. 

DUE  PROCESS  OF  LAW.  Law  in  its  reg- 
ular course  of  administration  through  courts 
of  justice.  3  Story,  Const.  264,  661 ;  Miller, 
Const.  664;  Wynehamer  v.  People,  13  N.  Y. 
378. 

This  definition  embodies  the  earlier  con- 
ception;  2  Co.  Inst.  51;  but  it  was  long  ago 
held  too  narrow;  Murray's  Lessee  v.  Hobo- 
ken  Land  &  Improvement  Company,  IS  How. 
(U.  S.)  272,  15  L.  Ed.  372,  where  a  distress 
warrant  to  collect  a  balance  due  from  a  col- 
lector of  customs,  under  executive  author- 
ity, prescribed  by  law,  was  held  due  process 
within  the  Vth  Amendment;  and  the  same 
ruling  is  made  under  the  XlVth  Amendment ; 
Ballard  v.  Hunter,  204  U.  S.  241,  27  Sup.  Ct. 
261,  51  L.  Ed.  461,  where  it  was  said  that 
the  phrase,  "has  never  been  defined.  It  does 
not  always  mean  proceedings  in  court.  Its 
fundamental  requirement  is  an  opportunity 
for  a  hearing  and  defense,  but  no  fixed  pro- 
cedure is  demanded,"  and  the  ruling  in  Da- 
vidson v.  New  Orleans,  96  U.  S.  97,  24  L.  Ed. 
616  (infra)  is  approved. 

Any  legal   proceeding   enforced   by   public 


DUE  PROCESS  OF  LAW 


947 


UF  LAW 


authority,  whether  sanctioned  by  age  or  cus- 
tom, or  newly  devised  in  the  discretion  of  the 
legislative  power,  in  furtherance  of  the  gen- 
eral public  good,  which  regards  and  pre- 
serves these  principles  of  liberty  and  jus- 
tice. Burtado  v.  California,  110  U.  S.  51G, 
4  Sup.  Ct.  Ill,  292,  28  I..  Ed.  232. 

This  term  is  considered  fty  i  equiv- 

alent to  tiir  phrase  "law  of  the  land" 
in  Magna  Carta,  c.  29),  ami  is  said  by  him 

to  denote  "indictment  or  presentment  of  g I 

and  lawful  men."  Co.  2d  Jnst.  50.  Amend- 
ment V.  of  the  Constitution  of  the  United 
States  provides:  "No  person  shall  .  .  . 
he  deprived  of  life,  liberty,  or  property,  with- 
out due  process  of  law."  Amendment  XIV. 
prohibits  a  state  from  depriving  a  person  of 
life,  liberty,  or  property,  without  due  process 
of  law.  A  similar  provision  exists  in  all 
the  state  constitutions;  the  phrases  "due 
course  of  law"  and  "the  law  of  the  land"  are 
sometimes  used;  but  all  three  of  these  phras- 
es have  the  same  meaning;  and  that  implies 
conformity  with  the  ancient  and  customary 
laws  of  the  English  people  or  laws  indi- 
cated by  parliament;  Davidson  v.  New  Or- 
leans, 96  U.  S.  97,  24  L.  Ed.  616;  Cooley, 
Const  Llm.  437,  where  the  provisions  in  the 
various  state  constitutions  are  set  forth. 
Miller,  J.,  says,  in  that  case  that  a  general 
definition  of  the  phrases  which  would  cover 
every  case  would  be  most  desirable,  but  that, 
apart  from  the  risk  of  failure  to  make  the 
definition  perspicuous  and  comprehensive, 
there  is  a  wisdom  in  ascertaining  the  extent 
and  application  of  the  phrase  by  the  judi- 
cial process  of  exclusion  and  inclusion  as  the 
cases  arise.  In  that  case,  however,  he  says 
also,  that  it  must  be  confessed  that  the  con- 
stitutional meaning  or  value  of  the  phrase 
remains  without  that  satisfactory  precision 
of  definition  which  judicial  decisions  have 
given  to  nearly  all  the  other  guaranties  of 
personal  rights  found  in  the  constitutions 
of  the  several  states  and  of  the  United 
States.  And  in  a  much  later  case  it  was 
said  that  the  phrase  has  never  been  precisely 
defined;  while  its  fundamental  requirement 
is  opportunity  for  hearing  and  defense,  the 
procedure  may  be  adapted  to  the  case.  Pro- 
ceedings in  court  are  not  always  essential; 
Ballard  v.  Hunter,  201  U.  S.  I'll.  L'7  Sup.  Ct. 
261,  51  L.  Ed.  461,  where  it  was  held  that 
personal  service  of  liens  for  taxes  and  as- 
sessments on  real  estate  on  resident  owners, 
and  constructive  service  by  publication  on 
non-resident  owners,  may  he  required  by 
statute,  the  land  being  accountable  to  the 
state  and  the  owner  charged  with  knowledge 
of  laws  affecting  it. 

The  liberty  guaranteed  is  that  of  natural 
and  not  of  artificial  persons;  Western  Turf 
Ass'n  v.  Greenberg,  204  U.  S.  359.  27  Sup.  Ct. 
3S4,  51  L.  Ed.  520;  where  it  was  said  "a  cor- 
poration cannot  be  deemed  a  citizen  within 
the  meaning  of  the  clause  of  the  Constitu- 


tion of  the  Unil  ta  the 

privileges  and  immunities  of  citizens  of  the 

r  im- 
paired by  the  La  prin- 
ciple   was    laid    down    in 
Life  1:      i 

ct.  126,  51  I-   Ed   L68,  7  At  □ 
Pembina  ConsoL  Silver  Min.  &  Mill.  < 
Pennsylvania,  125  U.  S. 
31  L.  Ed.  i'>~,o.    But  ■ 
as  well  as  with  I 

if  equal  protection  of  the  la 
&  L.  Turnpike  Road  Co.  v. 
L64  U.  s.  r.7s,  17  Sii;    i 
Smyth   v.   Ames,    169    U.    S.  46( 
U8,  li'  I-.  Ed  819;   Chicago,  M.  .v 
Co.  v.  Minnesota,  134  C.  S.  418,  10  Sup.  Ct. 
462,  7<c.  33  L.   Ed  970. 

The  full  significance  of  the  clause  "law  of 
the  land"  is  said  by  Ruflin,  C.  J.,  to  be  that 
statutes  which  would  deprive  a  citizen  of  the 
d  nr  property  without  a  reg- 
ular trial  according  to  the  course  and 
of  the  common  law  would  not  be  the  law  of 
the  land  ;  Hoke  v.  Henderson,  15  N.  C.  L5,  25 
Am.  Dec.  677.  Mr.  Webster's  explanation  of 
the  meaning  of  these  phrases  in  the  Dart- 
mouth College  Case,  4  Wheat  (U.  S.) 
L.  Ed  <',u'.t,  is:  "By  the  law  of  the  land  U 
more  clearly  intended  the  general  law,  a  law 
which  hears  before  it  condemns;  which  pro- 
ceeds upon  inquiry,  and  renders  judgment 
only  after  trial.  The  meaning  is  that  every 
citizen  shall  hold  his  life,  liberty,  property, 
and  immunities,  under  the  protection  of  the 
general  rules  which  govern  society.  Every- 
thing which  may  pass  under  the  form  of  an 
enactment  is  not,  therefore,  to  be  considered 
the  law  of  the  land." 

General  Principles.  The  adoption  of  the 
XIYth  Amendment  completed  the  circle  of 
protection  against  violations  of  the  provision 
of  Magna  Carta,  which  guaranteed  to  the 
citizen  his  life,  liberty  ami  property  against 
Interference  except  by  the  "law  of  the  land," 

which  phrase  was  coupled  in  the  Petition  of 
Right  with  due  process  of  law.  The  latter 
phrase  was  then  used  for  the  first  time,  but 
the  two  are  generally  treated  as  meaning  the 
same.     This  security   is   provided   as   :i  _ 

the   United   states  by   the  xivth   and   vth 
Amendments  and  as  against   the   Bta1 
the  XIYth   Amendment;    Davidson    \. 

origans.    96    U.    S.    '.'7.     101,    -\    L.    CI 
which   declined   to  attempt   its  precise   def- 
inition;   1  Iceland  v.  Williams.  131   1  ■  8.    105, 
418,  8  snp.  Ct  763,  83  L   Ed.   193;    tl 

promo  COUrt  has  frequently  declared  i: 
oral  terms  its  appreciation  of  the  value 
of  this  constitutional  guaranty;  Lank  of 
Columbia  v.  Okely,  4  wheat.  (U.  S.)  - 
I'll.  1  1..  Ed  659;  Jick  Wo  v.  Hopkins.  11^ 
V.  s.  370,  <••  Sup,  «'r.  1084,  30  I..  Ed.  220; 
Holden  v.  Bardy,  169  U.  S.  366,  389,  is  Sup. 
Ct.  ;;s;;.  42  1..  Ed.  780.  The  meaning  of  the 
phrase  is  discussed  generally  in  Kennard  v. 


DUE  PROCESS  OF  LAW 


948 


DUE  PROCESS  OF  LAW 


Louisiana,  92  U.  S.  480,  23  L.  Ed.  478;  Da- 
vidson v.  New  Orleans,  96  U.  S.  97,  24  L. 
Ed.  616;  Ex  parte  Wall,  107  U.  S.  265,  2  Sup. 
Ct.  569,  27  L.  Ed.  552;  Hagar  v.  Reclama- 
tion District  No.  10S,  111  U.  S.  701,  4  Sup. 
Ct.  663,  28  L.  Ed.  569 ;  Missouri  Pac.  Ry.  Co. 
v.  Humes,  115  U.  S.  512,  6  Sup.  Ct.  110,  29 
L.  Ed.  463;  Freeland  v.  Williams,  131  U.  S. 
405,  9  Sup.  Ct.  763,  33  L.  Ed.  193 ;  Hallinger 
v.  Davis,  146  U.  S.  314,  13  Sup.  Ct.  105,  36 
L.  Ed.  9S6.  It  does  not  refer  to  any  gen- 
eral system  of  law,  but  must  be  construed 
with  reference  to  the  historical  developments 
of  the  law  in  each  state;  Walker  v.  Sau- 
vinet,  92  U.  S.  90,  23  L.  Ed.  678;  Kennard 
v.  Louisiana,  92  U.  S.  4S0,  23  L.  Ed.  478 ;  and 
it  means  according  to  the  system  of  law  in 
each  state  and  not  any  general  one ;  Walker 
v.  Sauvinet,  92  U.  S.  90,  93,  23  L.  Ed.  67S ; 
Kennard  v.  Louisiana,  92  U.  S.  480,  23  L. 
Ed.  478;  Missouri  v.  Lewis,  101  U.  S.  22, 
25  L.  Ed.  9S9;  Hurtado  v.  California,  110 
U.  S.  516,  4  Sup.  Ct.  Ill,  292,  28  L.  Ed. 
232 ;  In  re  Converse,  137  U.  S.  624,  11  Sup. 
Ct.  191,  34  L.  Ed.  796;  Leeper  v.  Texas, 
139  U.  S.  462,  11  Sup.  Ct.  577,  35  L.  Ed.  225 ; 
McNulty  v.  California,  149  U.  S.  645,  13  Sup. 
Ct.  959,  37  L.  Ed.  882;  but  see  Wynehamer 
v.  People,  13  N.  Y.  378. 

The  prohibition  applies  to  all  instrumen- 
talities of  a  state ;  Chicago,  B.  &  Q.  R.  Co.  v. 
Chicago,  166  U.  S.  226,  17  Sup.  Ct.  581,  41 
L.  Ed.  979 ;  it  is  sufficient  if  the  legislation  is 
general,  in  its  operation  and  enforceable  by 
usual  methods  adapted  to  the  case ;  Dent  v. 
West  Virginia,  129  U.  S.  114,  9  Sup.  Ct.  231, 
32  L.  Ed.  623.  What  is  due  process  of  law 
in  a  particular  state  is  regulated  by  the  law 
of  the  state;  Walker  v.  Sauvinet,  92  U.  S. 
90,  23  L.  Ed.  67S;  although  a  state  cannot 
make  due  process  of  law  of  anything  which 
it  chooses  to  declare  such  by  its  own  legis- 
lation ;  Davidson  v.  New  Orleans,  96  U.  S. 
97,  24  L.  Ed.  616. 

Due  process  of  law  means  such  acts  of 
government  as  settled  maxims  of  law  and 
custom  sanction  and  permit ;  Ex  parte  Ah 
Fook,  49  Cal.  402;  in  the  regular  course  of 
administration  according  to  the  prescribed 
forms ;  Rowan  v.  State,  30  Wis.  129,  11  Am. 
Rep.  559 ;  according  to  the  law  of  the  land ; 
Walker  v.  Sauvinet,  92  U.  S.  93,  23  L.  Ed. 
678 ;  Kennard  v.  Louisiana,  92  U.  S.  480,  23 
L.  Ed.  47S ;  and  with  respect  to  taxation,  as 
to  which  the  question  is  so  frequently  rais- 
ed, it  has  been  said  that  the  assessment  of 
taxes  is  necessarily  summary  and  need  not 
be  by  judicial  proceeding ;  so  a  levy  by  a 
collector  under  a  state  law  is  valid;  Da- 
vidson v.  New  Orleans,  96  U.  S.  97,  24  L.  Ed. 
616 ;  Sears  v.  Cottrell,  5  Mich.  251,  where  the 
subject  is  fully  treated ;  and  taxation  for 
railroad  aid  bonds;  Talcott  v.  Pine  Grove,  1 
Flipp.  120,  Fed.  Cas.  No.  13,735;  the  clause 
has  reference  to  the  modes  of  ascertaining 


rights,  not  to  the  objects  and  purposes  of  a 
statute ;  id. 

Legislation  is  not  open  to  the  charge  of 
depriving  one  of  his  rights  without  due  pro- 
cess of  law,  if  it  be  general  in  its  operation 
upon  the  subject  to  which  it  relates  and  i3 
enforceable  by  usual  methods  adapted  to 
the  nature  of  the 'case;  Dent  v.  West  Vir- 
ginia, 129  U.  S.  114,  9  Sup.  Ct.  231,  32  L. 
Ed.  623.  As  was  said  by  Field,  J.,  in  Bar- 
temeyer  v.  Iowa,  18  Wall.  (U.  S.)  129,  21  L. 
Ed.  929:  "No  one  has  ever  pretended,  that 
I  am  aware  of,  that  the  XlVth  Amendment 
interferes  in  any  respect  with  the  police 
power  of  the  state."  In  that  case  it  was 
held  that  the  right  to  sell  liquor,  as  far  as 
it  exists,  is  not  a  right  growing  out  of  citi- 
zenship of  the  United  States. 

The  Distinction  Between  the  Two  Amend- 
ments. While  the  language  of  the  Vth  and 
XlVth  Amendments  is  the  same,  yet  as  they 
were  engrafted  upon  the  Constitution  at  dif- 
ferent times  and  under  widely  different  cir- 
cumstances, it  may  be  that  questions  may 
arise  in  which  different  constructions  and  ap- 
plications of  their  provisions  may  be  proper; 
French  v.  Pav.  Co.,  181  U.  S.  324,  328,  21 
Sup.  Ct  625,  45  L.  Ed.  879;  citing  Slaugh- 
ter-House Cases,  16  Wall.  (U.  S.)  36,  21  L. 
Ed.  394 ;  then  quoting  from  Davidson  v.  New 
Orleans,  96  U.  S.  97,  24  L.  Ed.  616  as  fol- 
lows: "It  is  not  a  little  remarkable  that 
while  this  provision  has  been  in  the  Con- 
stitution of  the  United  States,  as  a  restraint 
upon  the  authority  of  the  federal  government 
for  nearly  a  century,  and  while  during  all 
that  time,  the  manner  in  which  the  powers 
of  that  government  have  been  exercised  has 
been  watched  with  jealousy,  and  subjected 
to  the  most  rigid  criticism  in  all  its  branch- 
es, this  special  limitation  upon  its  powers 
has  rarely  been  invoked  in  the  judicial  forum 
or  the  more  enlarged  theatre  of  public 
discussion.  But  while  it  has  been  a  part  of 
the  Constitution,  as  a  restraint  upon  the 
power  of  the  states,  only  a  very  few  years, 
the  docket  of  this  court  is  crowded  with 
cases  in  which  we  are  asked  to  hold  that 
state  courts  and  state  legislatures  have  de- 
prived their  own  citizens  of  life,  liberty  or 
property  without  due  process  of  law.  There 
is  here  abundant  evidence  that  there  exists 
some  strange  misconception  of  the  scope  of 
this  provision  as  found  in  the  XI Vth  Amend- 
ment." The  court  then  stated  that  it  would 
"proceed  in  the  present  case  on  the  assump- 
tion that  the  legal  import  of  the  phrase  due 
process  of  law  is  the  same  in  both  amend- 
ments." See  Lent  v.  Tillson,  140  U.  S.  316, 
11  Sup.  Ct.  825,  35  L.  Ed.  419;  Palmer  v. 
McMahon,  133  U.  S.  660,  10  Sup.  Ct.  324,  33 
L.  Ed.  772;  Pittsburgh,  C,  C.  &  St.  L.  Ry. 
Co.  v.  Backus,  154  U.  S.  421,  14  Sup.  Ct. 
1114,  38  L.  Ed.  1031. 

It  was  not  intended  by  the  XlVth  Amend- 
ment to  impose  on  the  states,  when  exercis- 


DUE  PROCESS  OF  LAW 


949 


DUE  PRO"  ESS  OF  LAW 


ing  their  power  of  taxation,  any  more  rigid 
or  stricter  curb  than  that  imposed  on  the 
federal  government,  in  the  exercise  of  a 
similar  power  by  the  Vth  Amendment 
French  v.  Paving  Co.,  181  U.  S.  824,  329,  21 
Sup.  Ct.  625,  45  L.  Ed.  ST9.  And  in  another 
case  the  court  said:  "It  by  no  means  follows 
that  a  long  and  consistent  construction  put 
upon  the  vth  Amendment  relating  to  public 
improvements  within  the  District  of  Colum- 
bia is  to  be  deemed  overruled  by  a  decision 
concerning  the  operation  of  the  XI  Vth 
Amendment  as  controlling  state  legislation." 
Wight  v.  Davidson,  181  U.  S.  371,  384,  21 
Sup.  Ct.  GIG,  45  L.  Ed.  900. 

The  privileges  and  Immunities  of  citizens 
of  the  United  states,  protected  by  the  XiVth 
Amendment,  are  those  arising  out  of  the  na- 
ture and  essential   character  of  the   federal 
government,  and  granted  or  secured  by  the 
constitution;   and  due  process  of  law  and  the 
equal  protection  of  the   laws  are  secured  if 
the  laws  operate  on  all  alike,  and  do  not  sub- 
ject the  individual  to  an  arbitrary  exer<  Ise 
of    the   powers   of   government;     Duncan    v. 
Missouri,  152  U.  S.  382,  14  Sup.  Ct  570,  38  L 
Ed.  4S5 ;    Ilurtado   v.   California,   110   U.   S. 
535,  4  Sup.  Ct  111,  292,  28  L.  Ed.  232;    due 
process  of  law  in  the  XI Vth  Amendment  re- 
fers  to   that  law   of   the   land   in  each   state 
which  derives  its  authority  from  the   inher- 
ent  and   reserved   powers   of   the    state   ex- 
erted within  the  limits  of  those  fundamental 
principles  of  liberty  and  justice  which  lie  at 
the  basis  of  all  our  civil  and  political  insti- 
tutions;   In  re  Kemmler,  13G  U.   S.   436,   10 
Sup.  Ct  930,  34  L.  Ed.  519.     It  implh 
formity  with  the  natural  and  inherent  prin- 
ciples of  justice  and   forbids  the   taking  of 
one's    property    without    compensation,    and 
requires  that  no  one  shall  be  condemned  in 
person   or   property    without   opportunity    to 
be  heard;   llolden  v.  Hardy,  109  U.  S.  366,  18 
Sup.  Ct.  3S3,  42  L.  Ed.  780;   the  proceedings 
need  not  be  in  a  court  of  justice,  but  accord- 
ing to  tli"  forms  thereof;    Davidson  v.   New 
Orleans,   96   U.    S.   97,    24   L.    Ed.   616.     The 
proceedings  must  be  appropriate  to  the  case 
and  just  to  the  parties  affected,  and  pursued 
in  the  ordinary  manner  and  adapted  to  the 
end   to   be  attained,   with    opportunity   to   be 
heard,   when   necessary,   for   the  just   protec- 
tion of  rights;    Turpln  v.  Lemon,  1S7  U.  S. 
51,  23  Sup.  Ct  20,    IT  I..  Ed.  70.     See  edito- 
rial notes  on  What  is  Due  Process  of  Law 
in  24  L.  Ed.  436;   42  L.  Ed.  865.     Appropriate 
regulation  of  property  is  not  deprivation  of 
due  process  of  law;    Richmond,  F.  &  P.  B. 
Co.  v.  Richmond,  96  D.  S.  521,  24  L.  Ed.  734. 
In  Bank  of  Columbia    v.   Okely,  4   Wheat 
(U.  S.)  235,  4  L.   Ed.  559.   Johnson.  .!..  says: 
"As  to  the  words  from  Magna  Carta   Incor- 
porated in  the  constitution  of  Maryland,  alt- 
er volumes  spoken  and  written  with  a   view 
to  their  exposition,  the  good  sense  of  man- 
kind has  at  length   settled   down   to    this, — 


that   they   were  Intended   to   secure   the  in- 
dividual from  the  arbitrary  .  (  the 
powers  of   -                               trained  by   the 
established  principles  of   private   rights 
distributive  ju- 

"Due  process   of  law   undoubtedly   me 
In   the   due  course   of    legal   p. 
cording  to  those  rules  and  forme  which 
been   established   for  the  protection  of   pri- 
vate rights;"    Westervdt  v.  Gregg,  12  N.  Y. 
209,  62  Am.   Dec.    L60;    but  not   i 
judicial   pro  ;    it  may   Include   sum- 

mary   proceedings,    If    not    arbitrary    nr    un- 
equal,  as    for  collection   of   taxes;     .\b  Mi  lien 
v.  Anderson,  95  D.  S.  37,  24  L.  Ed.  335  ;  nor 
is    the    right    of    appeal    essential;    whe 
statute  lias  fixed  the  time  and  place  of 
Lng  of  any  board  or  tribunal,  do  special  no- 
tice to  parties  interested  Is  requii 
v.  Michigan,  188  U.  S.  505,  23  Su]  ,  I  I 
17  L.  Ed.  563. 

Law  in  its  regular  course  of  administration 
through  courts  of  justice  is  due  process;  and 
when  Becured  by  the  law  of  the  state,  the 
constitutional  requirement  is  satisfied;  keep- 
er v.  Texas   139  U.  S.  4(iL',  11  Sin,.  Ct  577, 
35  L.  Ed.  225.    The  phrase  as  used  in  the 
constitution  does  not  "mean  a  statu! 
for  the  purpose  of  working  the  wrong.    That 
construction  would  render  the  restriction  ab- 
solutely nugatory,  and  turn  this  part  of  the 
constitution  into  mere  nonsense.    The  people 
would    be    made   to    say   to    the   two    bouses: 
'You  shall  be  vested  with  the  legislative  pow- 
er of  the  state,  but  no  one  shall  be  disfran- 
chised iir  deprived  of  any  of  the  rights  or 
privileges  of  a  Citizen,  unless  you  pass  B 
ute  for  that  purpose.     In   other    words,   you 
shall  nol  do  the  w  rong  unless  yon  ch 
do  it;'"  per  Bronson,  J.,  in  Taylor  v.  l 
4  Hill   (X.   Y.i    1  »,   40   Am.    Dec.  274     "The 
meaning  of  these  words  is  that  no  man  shall 
be  deprived   of   his   property   without   being 
beard  in  bis  own  defence."    Kinney  v.  Bever- 
ly, 2   Hen.  &  M.    (  Va.)  318,  336. 

Cooley  (Const  Lim.  441)  says:  "Due  pro- 
cess Of  law  in  each  particular  case  mean-, 
such  an  exercise  of  the  powers  of  the 
eminent  as  t lit*  settled  maxims  of  law  per- 
mit and  sanction,  and  under  such  safeguards 
Cor  the  protection  of  individual  rights  as 
those  maxims  prescribe  for  the  class  ol 
to  which  the  one  in  question  belo 

Taking  property   onder  the  taxing   ■ 
is  taking  it  by  due  process  of  law;    Bigb  v. 
Shoemaker,  22  Cal.  363;    Springer  v.   r.  s.. 
102  i  .  s.  586,  26  L.  Ed.  253.     in  this  connec- 
tion, Itls  said  In  State  v.  Allen,  2  McCord  (8. 
0.)   56:    "We   think   thai   any   legal   pi 
which  was  originally   founded   In   nec< 
has  been  consecrated  by  time,  and  apj 
and    acquiesced    in    by    universal    consent 
.     .     .     is   embraced    in    the   alternative    law 
of  the  land.'"    in  Brown  v.  Levee  Com'rs,  50 
Miss.   ITU.  it  Is  said  that  these  constitutional 
ions  do  not  mean  the  general  body  of 


DUE  PROCESS  OF  LAW 


950 


DUE  PROCESS  OF  LAW 


the  law  as  it  was  at  the  time  the  constitution 
took  effect;  but  they  refer  to  certain  funda- 
mental rights  which  that  system  of  juris- 
prudence of  which  ours  is  derivative  has  al- 
ways recognized ;  if  any  of  these  are  disre- 
garded in  the  proceedings  by  which  a  person 
is  condemned  to  the  loss  of  property,  etc., 
then  the  deprivation  has  not  been  by  due  pro- 
cess of  law.  And  it  has  been  held  that  the 
state  cannot  deprive  a  person  of  his  prop- 
erty without  due  process  of  law  through  the 
medium  of  a  constitutional  convention  any 
more  than  it  can  through  an  act  of  the  leg- 
islature ;  Clark  v.  Mitchell,  69  Mo.  G27.  Ex- 
action of  tolls  under  a  state  statute  for  the 
use  of  an  improved  waterway,  is  not  a  dep- 
rivation of  property  within  the  federal  con- 
stitution ;  Sands  v.  Improv.  Co.,  123  U.  S. 
288,  8  Sup.  Ct  113,  31  L.  Ed.  149. 

It  follows  necessarily,  from  the  confessed 
inability  of  the  courts  to  form  a  general  def- 
inition and  their  settled  rule  of  dealing  with 
each  case  separately  upon  its  own  facts,  that 
in  a  discussion  of  the  subject  it  is  conven- 
ient to  illustrate  the  course  of  decisions  by 
a  selection  of  them  showing  different  phases 
of  the  application  of  the  principle. 

Limitations  on  the  Legislation  of  the  States. 
Acts  of  a  municipal  corporation  are  not 
wanting  in  due  process  of  law  if  such  acts, 
when  done  or  ratified  by  the  state,  would  not 
be  inconsistent  with  the  Amendment,  the 
latter  being  not  intended  to  bring  under  fed- 
eral control  everything  done  by  states  ille- 
gally under  state  laws,  but  only  the  acts  of 
states  or  their  instrumentalities  in  violations 
of  rights  secured  by  the  Constitution  of  the 
United  States;  Owensboro  Waterworks  Co. 
v.  Owensboro,  200  U.  S.  38,  26  Sup.  Ct.  249, 
50  L.  Ed.  361 ;  it  does  not  control  mere 
forms  of  procedure  in  state  courts  or  regu- 
late their  practice.  It  only  requires  that  the 
person  condemned  has  had  sufficient  notice 
and  an  adequate  opportunity  to  defend ;  Lou- 
isville &  N.  R.  Co.  v.  Schmidt,  177  U.  S.  230, 
20  Sup.  Ct.  620,  44  L.  Ed.  747.  The  guaranty 
is  secured  within  the  meaning  of  the  Amend- 
ment if  the  law  operates  on  all  alike  and 
does  not  subject  the  individual  to  an  arbi- 
trary exercise  of  the  powers  of  government ; 
Leeper  v.  Texas,  139  U.  S.  462,  11  Sup.  Ct. 
577,  35  L.  Ed.  225;  it  requires  only  that  a 
person  accused  of  crime  shall  be  subjected  to 
law  in  the  regular  course  of  the  administra- 
tion in  courts  of  justice;  In  re  Converse,  137 
U.  S.  624,  11  Sup.  Ct.  191,  34  L.  Ed.  796 ;  that 
the  accused  be  present  at  every  stage  of  the 
trial,  but  not  in  the  appellate  court,  when  he 
has  counsel,  and  when  that  court  is  merely 
deciding  as  to  prejudicial  error  below ;  Dow- 
dell  v.  U.  S.,  221  U.  S.  325,  31  Sup.  Ct.  590, 
55  L.  Ed.  753. 

"No  right,  privilege,  or  immunity  in  re- 
spect of  due  process,  at  any  stage  in  the 
duty  of  affording  it  arises  under  the  XlVth 
Amendment  unless   there   be  denial   of   the 


right  by  the  state  or  its  officers;"  no  im- 
munity is  secured  against  the  lawlessness  of 
private  individuals  who  take  a  prisoner  from 
the  custody  of  the  state  officers  and  murder 
him  to  prevent  his  having  the  benefits  of  a 
trial  by  operation  of  the  state's  established 
course  of  judicial  procedure ;  U.  S.  v.  Pow- 
ell, 151  Fed.  64S,  a  very  comprehensive  opin- 
ion by  Jones,  D.  J.,  in  the  circuit  court  of 
Alabama. 

While  the  XlVth  Amendment  protects  the 
citizen  in  his  right  to  engage  in  any  lawful 
business,  it  does  not  prevent  legislation  in- 
tended to  regulate  useful  occupations,  which, 
because  of  their  nature  and  location,  may 
prove  injurious  or  offensive  to  the  public.  It 
does  not  prevent  a  municipality  from  pro- 
hibiting any  business  which  is  inherently 
vicious  and  harmful ;  nor  does  it  prevent  a 
state  from  regulating  or  prohibiting  a  non- 
useful  occupation  which  may  become  harm- 
ful to  the  public,  and  the  regulation  or  pro- 
hibition need  not  be  postponed  until  the  evil 
is  flagrant ;  Murphy  v.  California,  225  U.  S. 
623,  32  Sup.  Ct.  697,  56  L.  Ed.  1229,  41  L.  R. 
A.  (N.  S.)  153.  There  is  nothing  in  the  XlVth 
Amendment  to  prevent  a  state  from  requiring 
individuals  to  make,  on  receiving  due  com- 
pensation, such  concessions  to  each  other  as 
the  public  welfare  demands,  and  a  statute 
permitting  the  exercise  of  the  right  of  em- 
inent domain  for  railways,  etc.,  for  working 
mines,  was  held  to  be  constitutional  and  to 
authorize  condemnation  of  the  right  to  cross 
the  land  of  a  private  owner  by  an  aerial 
bucket  line,  necessary  for  the  working  of  a 
mine;  Strickley  v.  Min.  Co.,  200  U.  S.  527, 
26  Sup.  Ct.  301,  50  L.  Ed.  581,  4  Ann.  Cas. 
1174;  Clark  v.  Nash,  198  U.  S.  361,  25  Sup. 
Ct.  676,  49  L.  Ed.  1085,  4  Ann.  Cas.  1171. 

Acts  and  Proceedings  Held  Valid.  Stat- 
utes or  ordinances  which  have  been  held  val- 
id as  not  being  deprivations  of  liberty  or 
property  without  due  process  of  law  are: 
Prohibiting  the  carrying  of  dangerous  weap- 
ons; Miller  v.  Texas,  153  U.  S.  535,  14  Sup. 
Ct.  874,  38  L.  Ed.  812;  creating  a  board  of 
registration  for  physicians;  Reetz  v.  Mich- 
igan, 188  U.  S.  505,  23  Sup.  Ct.  390,  47  L.  Ed. 
563  (where  it  was  said  that  due  process  of 
law  is  not  necessarily  judicial  process  and 
the  right  of  appeal  is  not  essential  to  it) ; 
taxing  stocks  of  railroads  in  other  states 
(held  not  unconstitutional  because  no  sim- 
ilar tax  was  laid  upon  stock  of  domestic 
railroads  or  foreign  railroads  doing  business 
in  Alabama,  the  property  of  the  former  class 
of  railroads  being  untaxed  and  that  of  the 
latter  two  classes  being  taxed  by  the  state) ; 
Kidd  v.  Alabama,  188  U.  S.  730,  23  Sup.  Ct. 
401,  47  L.  Ed.  669 ;  imposing  a  personal  tax 
on  all  property  in  or  out  of  the  state;  Glid- 
den  v.  Harrington,  1S9  U.  S.  255,  23  Sup.  Ct. 
574,  47  L.  Ed.  798  (where  it  was  said  that 
what  is  required  by  the  XlVth  Amendment, 
in  the  assessment  of  ordinary  annual  taxes 


DUE  PROCESS  OF  LAW 


951 


OF  LAW 


on    personal    property,    should    be   construed 
liberally,  and  while  notice  may  be  required, 
it  need  not  be  personal,  but  may  be  by  pub- 
lication or  by  posting  at  polling  places,  and 
it  was  also  neld  in  another  case  that  in  con- 
demning property  for  municipal  purpo 
is  sufficient   to   give   notice  by    public) 
with  opportunity  for  bearing;    Wight  v.  Da- 
vidson, 181  U.  S.  371,  21  Sup.  Ct.  616,  46  [* 
Bd.  900).     So  the  right  is  aot  Infringed  by 
Imposing  liabilities  on  particular  class 
an  act  making  persons  driving  herds  over  a 
highway  liable  for  damages  done  to  U  :  Jones 
lm,  L65  r.  s.  180,  17  Sup.  Ct  282,  41   L. 
Bd.  677;   or  sheep  owners  for  grazing  on  the 
public  domain;    Bacon  v.  Walker,  204  D.  S. 
311,  27  Sup.  Ct  289,  53   D.  Ed.  499;    or  mak- 
ing railroads  liable  to  employes  for  the  neg- 
e  of  fellow  employes;    .Missouri  1'ac.  R. 
Co.  v.  Mackey,  127  U.  S.  205,  8  Sup.  Ct.  1161, 
32  L.  Ed.  107;  or  for  flres  caused  by  locomo- 
tives;   St  Louis  &  S.  F.  K.  Co.  v.  Mathews, 
165  U.  S.  1,  17  Sup.  Ct.  243,  41  L.   Ed.  (.11; 
or  requiring  railroads  to  pay  damages  for  the 
diminution    in    value  of   farms    by    the   com- 
pany's failure  to  put  up   fences  and  cattle 
guards;     Minneapolis  &  St.  L.  R.  Co.  v.   Em- 
mons, 149  U.  S.  3G4,  13   Sup.  Ct.  870,  37  L. 
Ed.  769;    requiring  log  owners  to  pay  fees 
of  state  officer  for  surveying  and  sealing  logs; 
Lindsay  vS:  P.  Co.  v.  Mullen,  17G  U.  S.  126,  20 
Sup.   Ct.  325,   44   L.   Ed.   400;     making  mine 
owners  liable  for  defaults  of  mine  managers 
and    examiners    selected    by    them    under    a 
state    law ;     Wilmington    Star    Min.    Co.    v. 
Fulton,  205  U.  S.  60,  27  Sup.  Ct.  412,  51  L. 
Ed.   70S;    requiring   railroad   stockholders  to 
pay   their  just   proportion   of   bonded  debt; 
Union  Pac.  R.  Co.  v.  U.  S.,  99  U.  S.  700,  25 
E.  Ed.  496;    the  exaction  of  tolls  for  the  use 
of  an  improved  water  way;    Sands  v.   Imp. 
Co.,  123  U.  S.  2SS,  8  Sup.  Ct  113,  31  L.  Ed. 
149;   subjecting  buildings  used  for  gaming  to 
the  payment  of  money  lost  at  play;    Marvin 
v.  Trout,  199  U.  S.  212,  26  Sup.  Ct.  31,  50  L. 
Ed.  1T.7;    authorizing  the  destruction  of  nets 
used   in    Illegal    fishing;    Lawton    v.   Steele, 
152  U.  S.  133,  14  Sup.  Ct.  499.  38  L.  Ed.  385; 
subjecting   a  railroad  corporation    to  a   rule 
of    negligence   prescribed    by    a    general    act 
under  which  it  is  incorporated;   Chicago,  R.  I. 
&  P.  R.  Co.  v.  Zernecke,    L83  U.  S.  582,  22 
Sup.  Ct.   229,  46  L.   Ed.  339;    taking  private 
property  under  state  law  authorizing  the  ex- 
ercise  of  the    right   of   eminent    domain    for 
taking  private  property;    Missouri   Pac.   B. 
Co.  v.  Nebraska,  164  U.   S.  403,  IT   Sup.  Ct 
130,  41  L.  Ed.  489;  as  corporate  franchises; 
Greenwood   v.   Freight  Co.,  105  U.  S.  13,  26 
p.  Bd.  961 ;   for  flooding  lands;    Manigault  v. 
Springs,  199  U.  S.  473,  26  Sup.  Ct  127,  50  E. 
Ed.  274;    construction  of  a  levee;    Eldridge 
v.  Trezevant,  160  (J.  s.  452,  L6  Sup.  Ct  345, 
40  L.  Ed.  490;    condemnation  of  a    right   of 
way  across  a  place*  mining  claim;    Strickley 
v.   Min.   Co.,  200  U.   S.  527,  20   Sup.  Ct  301, 


50  L.  Ed.  581,  4  1174;    constructing 

a  dam  in  a  stream  i.  Ie,  payin 

damage  to  ou  d<  .-.-:  i  [<  ,.i  v.  M 
S.  9,  5  Sup.  Ct  4  11,  28  L.  Ed 
nation  of  shares  I  for 

its  improvement  under  ;i 
v.  R.  Co..  203  I'.  s.  372,  27 
Ed.  231  ;    acts   Imposing  spe  Ial   I 
public  service  corporal  I 
electric  company   to   pay  salaries  to 
siouers    to    supervise   them  ; 
Squire,  145  0.  S.  17.".,  12  Sup.  I  I 
Ed.  666;    com]  elling  a  railroad  i 
pa\  for  the  removal  of  a  grade  i  i  ■ 
York  &  N.  E.  K.  Co.  v.  Bristol,  151  U.  8.  556, 
1 1   Sup.  Ct   437,  38   L.   Ed.   -■  dring 

the  removal  of  a   bridge  and  culvert;    Chi- 
cago, B.  &  Q.  B.  Co.  v.  Illinois,  200  D.  S.  561? 
26  sup.  Ct  341,  50  L.  Ed.  596,  4  Ann 
117.";    requiring  the  lowering  or  removal  of 
a  tunnel  which  had  become  an  obstruct 
navigation  since  its  construction;    Wesl  Chi- 
cago St  B.  Co.  v.  Illinois,  201   r.  s.  5 
Sup.  Ct  518,  50  L.  Ed.  845;   requiring  a  rail5 
road   company    to    pay    for   examiners   as    to 
competency  of  Its  employes;    Nashville,  C.  & 
St.   L.  By.  v.   Alabama,   128   U.   B.  96,  9  Sup. 
Ct.  28,  32  L.  Ed.  352;    requiring  railroad  to 
furnish  track   connections   at   Intersect 
Wisconsin,  M.  &  P.  B.  Co.  v.  Jacobson,  17'J  L'. 
s.  287,  21  Sup.  Ct  115,  45  L.  Ed.  194;    re- 
quiring  a  gas  company  to  changi  ation 

of  its  pipes;  New  Orleans  Gas  Light  Co.  v. 
Drainage  Commission,  107  U.  S.  453,  25  Sup. 
Ct.  471,  49  L.  Bd.  831. 

So  the  guaranty   is  not  infringed  by  com- 
pulsory vaccination;    Jacobson  v.  Massachu- 
setts, 197  U.  S.  11,  25  Sup.  Ct  358,  49  L  Bd. 
643,    3    Ann.    Caa    765;     prohibition   against 
sales  of  options  on  grain;    Booth  v.  Illinois, 
1S4  U.  S.  4L'.". ;    regulating  charges  of  ware- 
housemen;   Munn  v.  Illinois,  94  U.  S.  113,  24 
L.  Ed.  77;  the  danger  that  testimony 
in  a  proceeding  under  a  state  law  may  in- 
criminate the  witness  in  a  possible  prosecu- 
tion under  the  federal  anti-trust  law;  .lack 
v.  Kansas,  199  U.  S.  372,  26  Sup.  Ct  73,  50 
L.   Ed.    234,   4   Ann.   ('as.   689;    or  by  0 
struction  of  the  value  of  properly  by  -tatute 
forbidding  the  manufacture  or  sale  of  Intoxi- 
cating liquors;    Mngler  v.  Kansas,  123  D.  S. 
623,  8   Sup.   Ct  273,  31    E.    Ed.  205 ; 
oleomargarine;    capital   city    Dairy   I 
Ohio,   183  D.  s.  238,  22  Sup.  Ct    120, 
Bd.    171:    or  by   taxing   artificially  ce 
oleomargarine,  even  If  the  tax  will  buj  ; 

the  manufacture;  M.Cray  v.  V.  S.,  195  I  •  S. 
27,  24  Sup.  Ct  769,  19  E.  Ed.  78,  1  Ann. 
Cats.  561  :  making  water  rents  a  prior  li< 
land;  Provident  Inst,  tor  Savings  v.  Jersey 
City,  113  D.  S.  506,  5  Sup.  Ct  612,  28  L  Ed. 
L102;  subordinating  Claims  Of  nonresident 
mortgagee  to  those  of  resident  creditors  of  a 
foreign  corporation;  Sully  v.  Bank,  17s  I'. 
s.  289,  20  Sup.  Ct  935,  44  L.  Ed.  1072;  the 
appointment  of  a  receiver  in  a  railroad  fore- 


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952 


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closure  suit;    St  Louis,  G.  &  Ft.  S.  Ry.  Co. 
v.  Missouri,  156  U.  S.  478,  15  Sup.  Ct  443, 
39  L.    Ed.   502;    precluding  defense  by   life 
insurance  company  based  on  false  and  fraud- 
ulent statement  in  application  unless  the  mat- 
ter represented   actually  contributed  to  the 
death    of   the    insured;     Northwestern    Nat 
Life  Ins.  Co.  v.  Riggs,  203  U.  S.  243,  27  Sup. 
Ct   126,   51    L.    Ed.    168,    7   Ann.    Cas.    1104 
(where  it  was  said  that  liberty  means  liberty 
of  natural  and  not   artificial  persons) ;    as- 
sessment for   opening   streets   on   the   front 
foot  rule,  held  not  void  because  levied  after 
the  work   was  completed  or  because,   when 
the  work  was  ordered,  the  city  could  under 
a  statute  repealed  after  the  work  was  com- 
pleted and   before  assessment,   include  part 
of  the   expenses  in  general  taxes  and  levy 
the  assessment  on  a   valuation  basis  under 
which  a   smaller   amount   would  have   been 
assessed  against  these  lands ;   City  of  Seattle 
v.  Kelleher,  195  U.  S.  351,  25  Sup.  Ct.  44,  49 
L.  Ed.  232 ;    the  imposition  of  some  duty  on 
transfer  of  stock ;   New  York  v.  Reardon,  204 
U.   S.  152,  27  Sup.  Ct  1SS,  51  L.  Ed.  415,  9 
Ann.  Cas.  736 ;   limiting  to  eight  hours  a  day 
the  period  of  work  in  under-ground  mines; 
Holden  v.  Hardy,  169  U.  S.  366,  18  Sup.  Ct. 
3S3,  42  L.  Ed.  780;   a  New  York  tax  on  a 
Pennsylvania     fire    insurance     company     on 
premiums  received  in  New  York,  being  the 
same    that   was    required   in    Pennsylvania ; 
Fire  Ass'n  of  Philadelphia  v.  New  York,  119 
U.  S.  110,  7  Sup.  Ct.  108,  30  L.  Ed.  342  (where 
it  was  held  a  condition  precedent  to  doing 
business  in  the  state). 

The  grant  by  a  state  to  a  corporation  of 
the  exclusive  right  or  privilege  of  maintain- 
ing slaughter  houses,  guarded  by  proper  lim- 
itation of  prices  to  be  charged  and  imposing 
the  duty  of  providing  ample  conveniences, 
with  permission  to  all  owners  of  stock  to 
land,  and  to  all  butchers  to  slaughter,  at 
those  places  is  valid;  Slaughter  House  Cases, 
16  Wall.  (U.  S.)   36,  21  L.  Ed.  394. 

Among  the  statutes  and  judicial  or  admin- 
istrative proceedings  which  have  been  held 
not  to  be  obnoxious  to  the  XlVth  Amend- 
ment as  deprivation  of  property  without 
due  process  of  law,  are  the  following:  Pro- 
viding for  the  widening  of  a  street;  Lent 
v.  Tillson,  140  U.  S.  316,  11  Sup.  Ct.  825,  35 
L.  Ed.  419 ;  regulating  contests  between  per- 
sons claiming  judicial  offices ;  Kennard  v. 
Louisiana,  92  U.  S.  480,  23  L.  Ed.  478 ;  mak- 
ing water  rates  a  charge  on  lands  prior  to 
liens;  Provident  Inst,  for  Savings  v.  Jersey 
City,  113  U.  S.  506,  5  Sup.  Ct.  612,  28  L.  Ed. 
1102;  authorizing  any  person  to  erect  and 
maintain  a  mill  dam  in  a  navigable  stream, 
paying  to  the  owners  of  the  lands  affected 
damages  assessed  in  a  judicial  proceeding; 
Head  v.  Mfg.  Co.,  113  U.  S.  9,  5  Sup.  Ct.  441, 
28  L.  Ed.  8S9 ;  providing  for  drainage  of  low 
lands,  damages  to  be  assessed  by  commis- 
sioners after  notice  and  hearing;    Wurts  v. 


Hoagland,  114  U.  S.  606,  5  Sup.  Ct.  10S6,  29 
L.  Ed.  229;    a  tax  law  giving  notice  to  the 
taxable  by  requiring  statement  of  his  prop- 
erty,  with   public   sessions   when   he   has   a 
right  to  be  present  and  to  be  heard,  with  an 
opportunity  in  a  suit  at  law  to  contest  the 
validity  of  the  proceeding ;  Cincinnati,  N.  O. 
&  T.  P.  R.  Co.  v.  Kentucky,  115  U.  S.  321,  6 
Sup.  Ct.  57,  29  L.  Ed.  414;   for  valuation  and 
classification  of  property  with  different  pro- 
visions as  to  different  classes  for  ascertain- 
ing the  value  and  a  right  of  appeal,  applying 
the  same  means  and  methods  to  individuals 
of  each  class;    Cincinnati,  N.  O.  &  T.  P.  R. 
Co.  v.  Kentucky,  115  U.  S.  321,  6  Sup.  Ct.  57, 
29  L.  Ed.  414 ;    requiring  railroads  to  erect 
and  maintain  cattle  guards  and  in  default 
thereof  to  be  liable  for  double  damages ;  Mis- 
souri Pac.  R.  Co.  v.  Humes.  115  U.  S.  512,  6 
Sup.  Ct.  110,  29  L.  Ed.  463;    or  to  fence  a 
track  under  penalty  of  double  damages ;  Min- 
neapolis &  St.  L.  R.  Co.  v.  Beckwith,  129  U.  S. 
26,  9  Sup.  Ct.  207,  32  L.  Ed.  585;    Spealman 
v.  Ry.  Co.,  71  Mo.  434;    the  imposition  upon 
property  of  a  tax  or  other  burden  for  rec- 
lamation of  swamp  lands ;  Reclamation  Dist 
No.  108  v.  Hagar,  4  Fed.  366;    and  see  Lent 
v.  Tillson,  140  U.  S.  316,  11  Sup.  Ct.  825,  35 
L.  Ed.  419 ;   Walston  v.  Nevin,  128  U.  S.  578, 
9   Sup.   Ct.  192,  32  L.  Ed.  544;    Pittsburgh, 
C,  C.  &  St  L.  R.  Co.  v.  Backus,  154  U.  S.  421, 
14  Sup.  Ct.  1114,  38  L.   Ed.  1031;    a  paving" 
law   originating  proceedings   on  petition   of 
two-thirds  of  the  owners  of  lots  bordering  on 
a  street,  and  taxing  abutting  owners ;  Schaef- 
er  v.  Werling,  1SS  U.  S.  516,  23  Sup.  Ct.  449, 
47  L.  Ed.  570;    Hibben  v.  Smith,  191  U.  S. 
310,  24  Sup.   Ct.  88,  4S  L.  Ed.  195;    and  as 
to  back-lying  property;    Voris  v.  Glass  Co., 
163  Ind.  599,  70  N.  E.  249 ;    Cleveland,  C,  C. 
&  St.  L.  R.  Co.  v.  Porter,  210  U.  S.  177,  2S 
Sup.  Ct.  647,  52  L.  Ed.  1012  (where  it  was 
held   that   the  legislature  may   create   back 
taxing  districts  of  property  extending  back) ; 
assessment  for  paving,  etc.,  not  void  because 
lot  is  not  benefited  by  the  improvements  ow- 
ing to  its  present  use ;   the  land  must  be  con- 
sidered simply  in  its  general  relations  and 
apart  from  its  particular  use  at  the  time; 
Louisville  &  N.  R.  Co.  v.  Paving  Co.,  197  U. 
S.  430,  25  Sup.  Ct.  466,  49  L.  Ed.  819 ;   charg- 
ing the  cost  of  paving  against  lots  fronting 
on  a   street  according  to  the  frontage,   the 
XlVth  Amendment  being  held  not  applicable ; 
French  v.  Paving  Co.,  1S1  U.  S.  324,  21  Sup. 
Ct.  625,  45  L.  Ed.  879 ;   providing  for  the  as- 
sessment  of   damages   for   laying    out,    etc., 
streets  upon  owners  of  land  benefited  there- 
by and  determining  the  amount  of  tax  and 
also  what  lands  are  benefited,  with  notice  to 
and  hearing  of  each  owner  at  some  stage  of 
the  proceeding  upon  the  question  of  his  pro- 
portion of  the  tax  to  be  assessed;   People  v. 
City  of  Brooklyn,  4  N.  Y.  419,  55  Am.  Dec. 
266;    Spencer  v.  Merchant,  125  U.  S.  345,  8 
Sup.   Ct   921,  31   L.   Ed.   763;    an  order  of 


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953 


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drainage  commissioners  requiring  a  railroad 
company  at  Its  own  expense  to   remove  a 
bridge    and    culvert    over    a    natural    water 
course  and  to  erect  a  new  one  in  conformity 
with  the  regulations  established  by  the  com- 
missioners; C,  B.  &  c>.  By.  v.  People,  200  U. 
S.  501,  20  Sup.  Ct.  341,  50  L.  Ed.  596 ;    mak- 
ing railroad  companies  liable  lor  damage  to 
employes  caused  by  the  negligence  of  fellow 
servants;  Missouri  Pac.  By.  Co.  v.  Mackey, 
1U7  r.  s.  205,  8  Sup.  Ct.  1161,  32  L.  Ed.  LOT; 
authorizing    a    city    to    open    and    Improve 
streets  and  assess  damages  against  the  own- 
ers of  adjacent  lots;    Walston   v.  .Wvin,   128 
U.  S.  578,  ••»  Sup.  Ct.  182,  32  L.  I'd.  ■".  1 1 :  con- 
verting an  appearance  «i.  b.  e.  Into 
appearance  and  submission  to  jurisdiction; 
Birmingham  v.  R.  Co.,  1.J7  N.  Y.  15,  32  N.  E. 
995,   L8  1-  B.  A.  701;    if  it  does  not  attempt 
to  restrain  the  suitor  from  fully  protecting 
his  life,  liberty  and  property  against  any  at- 
I    to  enforce  a  judgment   against    him 
without  <iue  process  of  law:    Kauffman   v. 
Wooters,   L38  D.   S.  285,  11  Sup.  Ct.  298,  -"i 
L.  Ed  962;    a  municipal  ordinance  prohibit- 
ing a   private   market  within   six   squares  of 
any    public    market    under    penalty    of    trial 
by  magistrate;    Natal  v.  Louisiana,  139  U.  S. 
621,  n  sup.  Ct  636,  35  l.  Ed.  288;  an  ordi- 
nance closing  laundries  between  10  p.  m.  and 
6  a.  in.,  it  being  held  merely  a  police  regula- 
tion and  not  a  violation  of  the  XlVth  Amend- 
ment;   Barbier  v.  Connolly,  113  U.  S.  'JT,  5 
Sup.  Ct.  357,  28  L.  Ed.  923;  so  also  a  stat- 
ute forbidding  inn-keepers,  common  carriers, 
theatres,  schools  and  cemetery  associations 
from  excluding  any  person  by  reason  of  race 
or  color;    People  v.  King,  110  N.  Y.  418,  18 
N.    E.   245,   1   L.   K.   A.   293,   0   Am.    St.   Rep. 
389;    a  statute  requiring  an  annual  license 
tax  from  foreign  corporations  which  do  not 
invest  and  use  their  capital  within  the  state; 
Pembina  Mining  Co.  v.  Pennsylvania,  125  U. 
s.  L81,  8  Sup.  Ct  737,  ::i  L  Ed.  650;   an  af- 
firmance on  appeal  of  death  sentence  in  the 
absence  of  the  accused  and  his  counsel  and 
without   notice  to  either;     Schwab  v.    Berg- 
gren,  143  U.  S.  442,  12  Sup.  <"t.  525,  36  L,  Ed. 
218;    punishment   of    death    by    electricity; 
McElvaine   v.   Crush,   142   D.   S.   155,    12   Sup. 
Ct.  150,  35  L.  Ed.  '.»71  :    trials  without  a  Jury 
if  according  to  the  settled  course  of  pi 
Lngs;    Walker  v.  Sauvinet,  92  D.  S.  90,  23  L. 
I'M.  <;7^;  Gibson  v.  Mason,  5  Nev.  283;  Janes 
v.  Reynolds'  Adm'rs,  2   Tex.   250;    whether 
by   motion    Hi'   action,    if   sanctioned   by    state 
law  and  with  opportunity  for  hearing;   Iowa 
C.  By.  Co.  v.  P>wa,  160  D.  S.  389,  16  Sup.  Ct. 
344,  40  L.  Ed.  467;   and  the  hearing  need  not 
be  according  to  the  practice  of  the  courts, 
but    by    appropriate    judicial    proceedings; 
Chicago,  B.  &  Q.  B.  Co.  v.  State,  -17  N< 
66  X.    W.  624,  41  L.  R.    A.    181,   53   Am.    St. 
Rep.    557;     the    decisions    of    administrative 
officers   under   the   Immigration    acts;     Nishi- 
mura    Ekiu  v.   U.   S.,  142  U.   S.   051,  12   Sup. 


Ct  336,  35  L.  Ed.  1140;  trial  and  sentence 
by  a  judge  de  facto  of  a  court  de  jure,  though 
appointed  by  the  governor  without  author- 
ity ;    In  re  Manning,  139  0.  S.  •"•"!,  11  Sup. 

L.    Ed.    264  ;     COnvi 

dc  fad 

o  Sawy.   410;    altering   the  mode  of  Q 

water  rates  in  a  city;    Spring   \al. 

Works  v.  Bartlett,  18 

validating  ultra 

s.  Mori  -    r.  s.    177,  - 

940,  -7   1..  Ed  795 :    trel   I   g 

penalty    for    fraud;     State    \.  •    Mo. 

495;     limiting  municipal   taxation   '■■ 

payment  of  a  judgment;    Slate  v.   Maj 

I  o  leans,    109    O.    S.    -  211, 

l'7  E.   Ed.  936;    proceeding  by  Info 

Bowan  v.  state.  :;o  Wis.  \::>.  n  Am.  I 
Hurtado  v.  P 

in.  292,  28  I.,  l.d.  232,  as  explained  and  af- 
firmed in  Maxwell  v.  Dow,  17'-.  I'.  S.  581,  20 
sup.  (  !t   1 18,   194,  i  I  E  Ed.  597;    McNu 
California,  110  P.  S.  645,  13  Sup.  I 
id  v.  Vermont 
262,   L8  Sup.  Ct   80,    1-  L.  Ed.  461;    Bolln  v. 
Nebra  ,  I  !t  287,  n  L. 

2;    Davis  v.  Burke,  179   i  ,   - 
Sup-  Ct  210,  45  I-  Ed.  249 
J.,  in  Jones  v.  Bobbins,  8  Gray  (W 
see  also   state  v.   Starling,   15   Bich.    I  - 
120;      the    trial    of    cases    without    a    jury; 
Walker  v.  Sauvinet  92   D.   S.  90,  23  L.  Ed. 
67£  ;    the  prini  Iple  with  a  de- 

tails being  that  the  provision  against  taking 
property  without  due 

apply  where   the   party  has  had  a   fair  trial 
in  a  court  of  justice  according  to  the   I 
of  proceeding   applicable  to   such   case;     Da- 
vidson v.  New  Orleans,  96  0.  - 

Kennard  v.  Louisiana,  92  0.  S.  180,  23 
i..  Ed.  478;  the  fad  that  the  judgment  of  a 
commissioner  is  final  does  not  operate 
deprivation  of  due  process  of  law;  Ex  Parte 
Ah  l'ook,  lit  CaL  402;  nor  does  the  entry 
of   a   judgment    on    forfi 

v.  Quigg,  59  X.  V.  B3;  a  statute  au- 
thorizing ti.e  Immigration  commissioner  to 
prevent    the   landing   of    lewd    w 

..    49    Cal.    402;     prohibiting 
any    person   from    making   or    mending    bur- 
glars'  tools ;    Ex  parte  Bobert 
65  s.  w.  726;    prohlbltli  fi""'"  sell- 

[uor  in  places  whe 
mitted  to  enter;    < 'renin  v.  Adams,  L92  0.  S. 
L08,  24  Sup.  Ct  219,    18   L.   1   i    8<  5  (where 
the  court  said:    "Th(  right 

in  a   citizen  to  sell   Intoxicating   liquors  by 
retail;   it  is  not  a   privl! 
Btate  or  Of   a    I  iti.  en  of  the   D 
a    statute  making   the  owner  of   pivin: 
which  liquor  is  sold   with  bis  knowledge  lia- 
ble   for    all    da:  suiting    from    the    in- 
toxication of  any  person  purchasing  0 
aor;    Bertholf  v.  O'Bellly,  71  X.  Y.  B 
Am.  Bep  323;    an  ordinance  prohibiting  the 

•ig  of  billiard  halls  (not  unconstitutional 


DUE  PROCESS  OF  LAW 


954 


DUE  PROCESS  OF  LAW 


either  as  depriving  the  owner  of  his  prop- 
erty without  due  process  of  law,  or  as  de- 
priving him  of  the  equal  protection  of  the 
laws) ;  Murphy  v.  California,  225  U.  S.  623, 
32  Sup.  Ct.  G97,  56  L.  Ed.  1229,  41  L.  R.  A. 
(N.  S.)  153 ;  (and  the  classification  regulating 
billiard  halls  based  on  hotels  having  twenty- 
five  rooms  is  reasonable ;  Murphy  v.  Califor- 
nia, 225  U.  S.  623,  32  Sup.  Ct.  697,  56  L.  Ed. 
1229,  41  L.  R.  A.  (N.  S.)  153) ;  the  discharge 
of  a  jury  in  a  murder  trial  for  cause  shown 
before  being  sworn ;  Howard  v.  Kentucky, 
200  U.  S.  164,  26  Sup.  Ct.  189,  50  L.  Ed.  421 
(where  it  was  held  that  the  amendment  was 
not  intended  to  interfere  with  the  power  of 
the  state  to  protect  life,  liberty  or  property 
of  citizens,  or  with  the  power  of  adjudica- 
tion of  its  courts,  in  administering  process 
provided  by  the  state  law) ;  regulation  by 
the  state  of  admission  of  persons  to  places 
of  amusement,  with  the  provision  that  per- 
sons holding  tickets  therefor  shall  be  ad- 
mitted if  not  under  the  influence  of  liquor, 
boisterous  or  of  immoral  character  ;  Western 
Turf  Ass'n  v.  Greenberg,  204  U.  S.  359,  27 
Sup.  Ct.  384,  51  L.  Ed.  520;  statutes  au- 
thorizing the  administration  on  the  estates 
of  absentees  if  the  period  of  absence  be  fixed 
and  not  unreasonably  brief ;  Cunnius  v. 
School  Dist.,  198  U.  S.  458,  25  Sup.  Ct.  721, 
49  L.  Ed.  1125,  3  Ann.  Cas.  1121,  affirming 
id.,  206  Pa.  469,  56  Atl.  16,  98  Am.  St.  Rep. 
790;  a  municipal  ordinance  providing  for 
the  inspection  of  good  products  kept  in  stor- 
age and  for  the  summary  seizure  and  de- 
struction of  what  is  unfit  for  use ;  North 
American  Cold  Storage  Co.  v.  Chicago,  151 
Fed.  120;  the  restriction  of  the  right  of  ap- 
peal to  an  intermediate  appellate  court  in 
lieu  of  the  state  supreme  court;  Missouri  v. 
Lewis,  101  U.  S.  22,  25  L.  Ed.  989;  a  review 
by  an  appellate  court  of  final  judgment  in  a 
criminal  case  not  being  necessary  to  consti- 
tute due  process ;  McKane  v.  Durston,  153 
U.  S.  684,  14  Sup.  Ct.  913,  38  L.  Ed.  867 ;  the 
entry  of  a  judgment  on  a  bond  which  is  for- 
feited is  not  invalid ;  Janes  v.  Reynolds' 
Adm'rs,  2  Tex.  250 ;  nor  the  entry  of  a  judg- 
ment for  money  which  is  void  for  want  of 
proper  service;  York  v.  Texas,  137  U.  S.  15, 
11  Sup.  Ct.  9,  34  L.  Ed.  604 ;  authorizing  the 
sale  of  animals  running  at  large ;  Campau 
v.  Langley,  39  Mich.  45l,  33  Am.  Rep.  414 ; 
making  a  garnishee  liable  to  pay  a  judg- 
ment if  he  fails  to  render  a  sworn  account ; 
Vaughan  v.  Furlong,  12  R.  I.  127 ;  conviction 
and  sentence  to  death  of  a  prisoner  when 
after  the  verdict  one  of  the  jurors  was  in- 
sane, the  court  having  upon  inquiry  found 
that  he  was  of  sufficient  mental  capacity  dur- 
ing the  trial  to  act  as  a  juror ;  Jordan  v. 
Massachusetts,  225  U.  S.  167,  32  Sup.  Ct.  651, 
56  L.  Ed.  1038. 

A  transfer  or  succession  tax  is  valid ; 
Blackstone  v.  Miller,  188  U.  S.  189,  23  Sup. 
Ct.  277,  47  L.  Ed.  439 ;   Magoun  v.  Bank,  170 


U.  S.  2S3,  18  Sup.  Ct.  594,  42  L.  Ed.  1037; 
it  does  not  violate  either  the  XlVth  Amend- 
ment or  sec.  10  of  art.  I,  of  the  constitution; 
Orr  v.  Gilman,  183  U.  S.  278,  22  Sup.  Ct.  213, 
46  L.  Ed.  196  (where  it  was  held  that  the 
opinion  in  Carpenter  v.  Pennsylvania,  17 
How.  [U.  S.]  456,  15  L.  Ed.  127,  though  prior 
to  the  XlVth  Amendment,  correctly  defines 
the  limits  of  jurisdiction  between  the  state 
and  federal  governments  in  respect  of  con- 
trolling the  assets  of  decedents  both  before 
and  after  that  amendment);  nor  does  a  state 
inheritance  tax;  Campbell  v.  California,  200 
U.  S.  87,  26  Sup.  Ct.  1S2,  50  L.  Ed.  382  (where 
it  was  said  that  the  XlVth  Amendment  does 
not  deprive  the  state  of  the  right  to  regulate 
and  burden  the  right  of  inheritance,  but  at 
the  most  can  only  be  held  to  restrain  such  an 
exercise  of  power  as  would  exclude  the  con- 
ception of  judgment  and  discretion  and  be 
so  obviously  arbitrary  and  unreasonable  as 
to  be  beyond  the  pale  of  governmental  au- 
thority) ;  a  provision  in  the  California  con- 
stitution that  "all  contracts  for  the  sales  of 
shares  of  capital  stock  of  any  corporation  or 
association  on  margin  shall  be  void  and  any 
money  paid  on  such  contracts  may  be  re- 
covered by  the  party  paying  it  by  suit  in  any 
court  of  competent  jurisdiction,"  directed 
against  sales  on  margins ;  Ottis  v.  Parker, 
1S7  U.  S.  606,  23  Sup.  Ct.  168,  47  L.  Ed.  323. 
A  tax  law  which  gives  a  right  to  be  heard, 
but  does  not  extend  a  rehearing  on  appeal  to 
railroad  companies,  though  it  does  to  ordina- 
ry taxpayers,  is  valid ;  Pittsburgh,  C,  C.  & 
St.  L.  R.  Co.  v.  Backus,  154  U.  S.  421,  14 
Sup.  Ct.  1114,  38  L.  Ed.  1031,  where  Brewer, 
J.,  says:  "The  power  of  a  state  to  make 
classifications  in  judicial  or  administrative 
proceedings  carries  with  it  the  right  to  make 
such  a  classification  as  will  give  to  parties 
belonging  to  one  class  two  hearings  and  to 
parties  belonging  to  a  different  class  only  a 
single  hearing;"  and  on  this  authority  a 
statute  making  final  the  decision  of  an  in- 
ferior court  in  a  local  option  election  con- 
test was  held  valid ;  Saylor  v.  Duel,  236  111. 
429,  86  N.  E.  119,  19  L  R.  A.  (N.  S.)  377. 
See  Equal  Protection  of  the  Laws. 

An  erroneous  decision  does  not  deprive  the 
unsuccessful  party  of  liberty  without  due 
process  of  law ;  Central  Land  Co.  v.  Laidley, 
159  U.  S.  103,  16  Sup.  Ct.  80,  40  L.  Ed.  91 ; 
nor  do  mere  errors  in  the  administration  of 
a  state  statute  not  unconstitutional ;  Lent  v. 
Tillson,  140  U.  S.  316,  11  Sup.  Ct.  825,  35  L. 
Ed.  419 ;  nor  imprisonment  under  a  valid 
law,  though  there  was  error  in  the  proceed- 
ings; In  re  Ah  Lee,  5  Fed.  899;  nor  error 
in  a  charge  to  a  jury  in  a  criminal  case; 
Davis  v.  Texas,  139  U.  S.  651,  11  Sup.  Ct. 
675,  35  L.  Ed.  300.  The  guaranty  is  not  vio- 
lated by  an  order  requiring  an  attorney  to 
defend  an  accused  person  gratuitously; 
Presby  v.  Klickitat  County,  5  Wash.  329,  31 
Pac.  876.     The  XlVth  Amendment  did   not 


DUE  PROCESS  OF  LAW 


955 


DUE  PROCESS  OF  LAW 


change  the  law  as  held  prior  to  it  that  regula- 
tion of  the  use,  or  even  of  the  price  of  the 
use,  of  private  property,  was  not  depriving 
the  owner  of  it  without  due  process  of  law; 
Munn  v.  Illinois,  94  U.  S.  113,  24  L.  Ed.  77. 

Acts  and   Proceedings   Which   Violate  the 
Guaranty  of  Due  Process  of  Law.    Acts  of  a 
state  held  to  infringe  the  guaranty  of  due 
process  of  law  are:    Taking  property  hy  the 
state  for  public  use  without  compensation; 
Chicago,  B.  &  Q.  R.  Co.  v.  Chicago,  L66  D.  S. 
226,  17  Sup.  Ct  5S1,  41  L.  Ed  '.IT'.) ;  Norwood 
v.  Baker,  172  U.  S.  269,  L9  Sup.  Ct  187,  43  L. 
Ed.    143;    Cincinnati,  N.  O.  &  T.  P.  K.  Co.  v. 
Kentucky,  115  U.  S.  321,  6  Sup.  Ct.  57,  29  L. 
Ed.  414;     Smyth  v.   Ames.   L69   (J.   S.  466,  18 
Sup.  Ct.  418,  42  L.  Ed.  819 ;   Chicago,  B.  &  Q. 
R.  Co.  v.  Drainage  Coin'rs,  200  U.  S.  561,  26 
Sup.  Ct.  341,  50  L.  Ed.  596;    and  so  also  if 
taken  under  a  judgment  of  the  state  court 
though  authorized  by  statute;  Chicago,  B.  & 
Q.  R.  Co.  v.  Chicago,  166  U.  S.  226,  17  Sup. 
Ct.  581,  41  L.  Ed.  979;   but  if  compensation 
was   provided  for  before  a   proper  tribunal 
there  is  due  process  of  law ;    Backus  v.  De- 
pot Co.,  169  U.  S.  557,  18  Sup.  Ct  445,  42  L. 
Ed.  853;   Otis  Co.  v.  Mfg.  Co.,  201  U.  S.  140, 
26  Sup.  Ct.  353,  50  L.  Ed.  696.    The  exclusion 
of  colored  men  on  account  of  race  from  the 
grand  jury  was  held  a  denial  of  rights  under 
the  XlVth  Amendment;    Rogers  v.  Alabama, 
192  U.  S.  226,  24  Sup.  Ct.  257,  4S  L.  Ed.  417. 
Other    acts    held    unconstitutional    were: 
One    forbidding   the   manufacture   of   cigars 
in  tenement  houses;    In  re  Jacobs,  98  N.  Y. 
98,  50  Am.  Rep.  636 ;    and  a  New  York  stat- 
ute  respecting    the    sale    of   oleomargarine; 
People  v.  Rosenberg,  138  N.  Y.  410,  34  N.  B. 
2S5  (on  the  other  hand  the  constitutionality 
of  the  Pennsylvania  act  on  the  same  subject 
was  affirmed;   Powell  v.  Commonwealth,  114 
Pa.  265) ;   a  prohibition  against  laundries  ex- 
cept of  brick  or  stone,  without  the  consent  ot 
the  supervisors,  because  clearly  intended  for 
discrimination  against  the  Chinese;  Yick  Wo 
v.  Hopkins,  118  U.  S.  356,  6  Sup.  Ct.  1064,  30 
L.  Ed.  220;    a  statute  requiring  every  mem- 
ber of  a  firm  of  plumbers  to  be  a  registered 
plumber,  whether  his  duties  require  him  to 
have  knowledge  of  that  trade  or  not,   is  an 
unwarranted    interference    with    liberty    and 
property;    Schnaier  v.    Importation  Co.,  182 
N.  Y.  83,  74  N.  E.  501,  70  L.  R.  A.  722,  108 
Am.  St.  Rep.  790;    State  v.  Smith.  42  Wash. 
237,  84  Pac.  851,  5  L.  R.  A.  (N.  S.)  674,  and 
note,  114  Am.  St  Rep.  114,  7  Ann.  Caa  577; 
so  is  a  statute  forbidding  women  to  work  in 
a  factory  before  6  a.  m.  or  after  '.>  p.  in. ;  Peo- 
ple v.  Williams.  189  N.  V.  131,  8]    X.  E.  778, 
12   L.   R.   A.   (N.   S.)   1130.    121   Am.   St.    Rep. 
854,  12  Ann.  Cas.  798;   and  one  limiting  hours 
of  labor  for  employes  of  bakers;  Lochner  v. 
New  York,  198  U.  S.  45,  25  Sup.  Ct  539,  49 
L.  Ed.  937,  3  Ann.  Cas.  1133,  reversing  Peo- 
ple v.  Lochner.  177  N.  Y.   145,  69  N.  E.  373, 
101   Am.  St  Rep.  773  (the  bake  ^ap  case) ; 


but    it   was    held   otherwise   as    to    limiting 
hours  of  lahor  in  employments  when  health 
is  involved,  as  in  underground  mines;    Hold- 
en  v.  Hardy,  169  D.  S 
L.  Ed.   780;    Ex  parte  Kair,  2- 
Pac.  45:;,  6  Ann.  I 
34  Mont.   571.  87   Pa 
State  v.  Cantwell,  179  Mo 

or  for  a  woman  to  work  in  a  factory,  laun- 
dry or  mechanical   establishment   I 
ten  hours  a  day;    Muller   ..    S 
208  1'.  s.   ill'.  28  Sup.  Ct  324,  52  L.  Ed 
13   Ann.   <'as.   '.(.",7,  affirming    State   v.   Muller, 
l-  Or.  252,  85  Pac.  855,  L20  Am  St  B 
1L  Ann.  (  as.  88;    or  limiting  hours  of 
for  children  under  sixteen;    state  v.  Shorey, 
48  Or.  396,  86  Pac.  881,  24   L.   R.   A.  I 
1121;    In  re  Spencer.  1  19  CaL  ■■- 
117  Am.   St.   Rep.  137,  '•»  Ann.  Cas.  1105. 

Denial  of  due  process  of  law  by  municipal 
authorities  while  acting  as  a  1  oard  of  equal- 
ization   amounts   to    a    denial    by    the    - 
Raymond   v.  Traction    Co,,   207    O.    S.  2 
Sup.  Ct  7,  52   L.  Ed.  78,  12  Ann.   I  757 

the  guaranty  is  denied  by  imprisonment  un- 
der a  void  ordinance;  In  re  Lee  Long,  L8 
Fed.  253;  but  not  under  a  valid  law  by  rea- 
son of  error  in  the  proceedings;  In  re  Ah 
Lee,  5  Fed.  899,  6  Sawy.  410. 

Statutes  authorizing  the  destruction  of 
property  used  for  unlawful  gaming  were  held 
void;  Lowry  v.  Rainwater,  70  Mo.  152,  35 
Am.  Rep.  420;  so  also  the  sale  of  land  to 
satisfy  void  street  assessments  which  the 
legislature  has  unconstitutionally  attei 
to  validate;  Brady  v.  King,  53  Cal.  44:  the 
commitment  to  the  workhouse  of  an  B  I 

pauper  by  two  overseers  em  \<artc  and  with- 
out hearing;  City  of  Portland  v.  City  of 
Bangor,  65  Me.  120,  20  Am  Re] ,  681,  re- 
versing earlier  cases  before  the  ad 
of  the  XlVth  Amendment.  A  judgment  in 
personam  without  service  within  the  j  ins- 
diction  Is  void;  Pennoyer  v.  Neff,  95  D.  S. 
714,  24  L.  Ed.  565:  see  York  v.  Texa 
U.  S.  15,  11  Sup.  Ct  9,  •"■  1  L.  Ed.  604;  no 
judgment  of  a  court  is  due  process  of  law  if 
rendered  without  jurisdiction  or  notice  to  the 
party.  Scott  v.  McNeal,  154  D.  S.  .:».  14  Sup. 
Ct  1108,  38  L.  Ed.  B  itute  providing 

that  the  use  of  an  easement  shall  not 
idence  of  a  right  thereto  is  uno  i  stitutional 
as  to  rights  acquired  prior  thereto;    Reyn- 
olds v.  Randall,  12  R.  1.  522;   and  bo  Is  an 
act    purporting   to  make   a   tax   d( 

if  title:  Marx  v.  Hanthorn, 
148  U.  S.  172.  13  Sup.  Ct  508,  37  L  Ed.  410 
(it  may  be  made  prima  lence);   an 

act  fixing  absolute  liability  on  a  corporation 
to  make  compensation  for  injuries  done  to 
property  without  fault,  when  no  one  else 
would     be     liable    under  eral     law ; 

Zeigler  v.  R  Co.,  "v  Ala,  594;  an  act  au- 
thorizing  a  Hon  on  a  tombstone  and  Its  sale 
for  non  payment  without  provision  for  ad- 
justing the  rights  of  the  parties;    Brooks  v. 


DUE  PROCESS  OF  LAW 


956 


DUE  PROCESS  OF  LAW 


Tayntor,  17  Misc.  534,  40  N.  Y.  Supp.  445; 
a.  statute  dispensing  with  personal  service  in 
proceedings  where  it  is  practicable  and  usual, 
the  parties  being  within  the  jurisdiction; 
Brown  v.  Board  of  Levee  Com'rs,  50  Miss. 
468;  imposing  an  assessment  for  local  im- 
provement without  notice  or  an  opportunity 
for  hearing ;  it  is  not  enough  that  the  owner 
may  have  notice  and  hearing,  the  law  must 
provide  for  it;  Stuart  v.  Palmer,  74  N.  Y. 
1S3,  30  Am.  Rep.  2S9 ;  Savannah,  F.  &  W.  R. 
Co.  v.  Savannah,  96  Ga.  6S0,  23  S.  E.  847; 
Violett  v.  Alexandria,  92  Va.  561,  23  S.  E. 
909,  31  L.  R.  A.  3S2,  53  Am.  St.  Rep.  825. 

The  proceedings  of  a  board  of  equalization 
of  state  taxes,  its  decision  being  conclusive, 
are  reviewable  in  the  federal  courts  at  the 
suit  of  one  claiming  that  he  was  deprived 
thereby  of  due  process  of  law ;  Raymond  v. 
Traction  Co.,  207  U.  S.  20,  28  Sup.  Ct.  7,  52 
L.  Ed.  78,  12  Ann.  Cas.  757,  where  a  tax 
was  held  to  be  an  illegal  discrimination 
against  property  of  the  same  class  where  it 
was  so  great  as  to  cause  insolvency. 

A  state  statute  requiring  that  no  railroad 
company  shall  require  a  stipulation  from  its 
employes  waiving  damages  for  injury  vio- 
lates their  liberty  of  contract,  and  is  also 
void  as  class  legislation  in  violation  of  the 
Ohio  constitution ;  Shaver  v.  Pennsylvania 
Co.,  71  Fed.  931. 

A  county  ordinance,  of  which  the  manifest 
purpose  is  to  limit  the  number  of  any  kind 
of  game  to  be  killed  or  taken  by  one  person  in 
a  day,  and  making  it  a  misdemeanor  to  use  a 
repeating  shotgun  or  magazine  gun,  is  void ; 
In  re  Marshall,  102  Fed.  323  (but  such  pro- 
hibition is  valid  when  directed  against  aliens, 
and  is  not  in  contravention  of  the  treaty  be- 
tween Italy  and  the  United  States;  Com.  v. 
Patsone,  231  Pa.  46,  79  Atl.  928). 

In  Norwood  v.  Baker,  172  U.  S.  269,  19 
Sup.  Ct.  187,  43  L.  Ed.  443,  it  was  held  that 
taking  private  property  under  a  rule  which 
excluded  any  inquiry  as  to  special  benefits, 
the  necessary  operation  of  which  was  to  the 
extent  of  the  excess  of  the  cost  of  opening 
the  street  in  question  over  any  special  bene- 
fits accruing  to  the  abutting  property  there- 
from, was  a  taking  of  private  property  for 
private  use  without  compensation. 

A  state  statute  establishing  a  board  of 
medical  examiners  and  conditions  under 
which  persons  will  be  licensed  to  practice 
osteopathy  does  not  deprive  one  who  refuses 
to  apply  for  a  license  therein  of  his  property 
under  due  process  of  law  or  deny  him  the 
equal  protection  of  the  law ;  Collins  v.  Texas, 
223  U.  S.  288,  32  Sup.  Ct  286,  56  L.  Ed.  439 ; 
nor  does  a  state  statute  making  entries  in 
public  records  prima  facie,  but  not  conclu- 
sive, evidence  of  the  validity  of  the  proceed- 
ings referred  to ;  Reitler  v.  Harris,  223  U.  S. 
437,  32  Sup.  Ct.  24S,  56  L.  Ed.  497. 

Contempt  of  Court.  A  commitment  for 
contempt  of  court  is  not  obnoxious  to  this 


constitutional  provision;  State  v.  Becht,  23 
Minn.  411 ;  Eikenberry  v.  Edwards,  67  la. 
619,  25  N.  W.  832,  56  Am.  Rep.  300;  In  re 
Clayton,  59  Conn.  510,  21  Atl.  1005,  13  L.  R. 
A.  66,  21  Am.  St.  Rep.  128 ;  State  v.  Shepherd, 
177  Mo.  205,  76  S.  W.  79,  99  Am.  St.  Rep. 
624;  Com.  v.  Gibbons,  9  Pa.  Super.  Ct.  527; 
In  re  Barnes,  204  N.  Y.  108,  97  N.  E.  508; 
Eilenbecker  v.  District  Court,  134  U.  S.  31, 
10  Sup.  Ct.  424,  33  L.  Ed.  801 ;  whether  under 
the  inherent  power  of  courts  or  under  stat- 
utes authorizing  summary  punishment ;  In 
re  Barnes,  147  App.  Div.  396,  132  N.  Y.  Supp. 
908;  Brown  v.  Powers  (la.)  134  N.  W.  73; 
nor  is  a  commitment  for  failure  to  pay  a 
tax,  not  resorted  to  until  other  means  of  col- 
lection have  failed,  and  then  only  upon  a 
showing  of  property  possessed,  not  accessible 
to  levy,  but  enabling  the  owner  to  pay  if  he 
chooses;  Palmer  v.  McMahon,  133  U.  S.  660, 
10  Sup.  Ct.  324,  33  L.  Ed.  772 ;  but  a  person 
summarily  adjudged  guilty  of  contempt  by 
a  court  without  a  hearing  or  service  upon 
him  of  any  process,  for  an  act  not  committed 
in  the  presence  of  the  court,  and  imprison- 
ment for  non-payment  of  the  fine  imposed, 
is  deprived  of  his  liberty  without  due  pro- 
cess of  law ;  Ex  parte  Strieker,  109  Fed.  145. 

To  punish  for  contempt  by  striking  an  an- 
swer from  the  files  and  condemning  as  by 
default  is  denial  of  due  process  of  law ;  but, 
under  the  power  conferred  by  statute,  the 
answer  of  a  foreign  corporation  was  stricken 
from  the  files  and  a  judgment  rendered  as 
by  default  because  of  the  failure  or  refusal 
of  the  corporation  defendant  to  produce 
books  and  papers  from  outside  of  the  state 
as  required  by  the  statute ;  Hammond  Pack- 
ing Co.  v.  Arkansas,  212  U.  S.  322,  29  Sup. 
Ct.  370,  53  L.  Ed.  530,  15  Ann.  Cas.  645; 
which  decision  on  this  point,  was  based  up- 
on the  undoubted  right  of  the  legislature  to 
create  a  presumption  in  respect  to  the  want 
of  foundation  of  an  asserted  defense  against 
a  defendant  who  suppresses,  or  fails  to  pro- 
duce, evidence  when  legally  called  upon  to 
produce  it. 

Where  a  railroad  rate  statute  was  held 
unconstitutional  by  a  federal  court  and  all 
the  defendants,  including  the  attorney  gen- 
eral, were  enjoined  from  enforcing  it,  and 
the  attorney  general  refused  to  comply  with 
the  order,  and  was  fined  and  committed  for 
contempt,  the  supreme  court  refused  to  dis- 
charge him  on  habeas  corpus,  it  being  con- 
sidered that  he  was  a  state  officer  charged 
with  the  duty  of  enforcing  the  statute,  if 
constitutional,  and  therefore  was  properly 
joined  as  a  defendant;  Ex  parte  Young,  209 
U.  S.  123,  28  Sup.  Ct.  441,  52  L.  Ed.  714,  13 
L.  R.  A.   (N.  S.)   932,  14  Ann.  Cas.  764. 

Notice.  Guarantee  by  the  XlVth  Amend- 
ment does  not  require  a  state  to  adopt  a  par- 
ticular form  of  procedure,  so  long  as  the  ac- 
cused has  had  sufficient  notice  and  an  ade- 
quate opportunity  to  defend  himself,  and  a 


DUE  PROCESS  OF  LAW 


957 


PRO<  J.--   ■  »F  LAW 


state  may  determine,  free  from  federal  in- 
terference or  control,  in  what  courts  crime 
may  be  prosecuted  and  by  what  courts  the 
prosecution  may  be  reviewed ;  Rogers  v. 
I  L99  U.  S.  425,  2G  Sup.  Ct.  87,  50  L.  Ed. 

The  essential  elements  of  due  process  of 
law  are  notice  and  opportunity  to  defend; 
Simon  v.  Craft,  L82  D.  S.  427,  436,  21  Sup. 
Ct.  836,  45  L.  Ed.  1165;  "in  determining 
whether  such  rights  were  denied  we  are  gov- 
erned by  the  substance  of  things  and  not 
by  mere  form;"  id.,  citing  Louisville  &  N.  it. 
Co.  v.  Srhini.lt,  177  U.  S.  230,  20  Sup.  Ct 
620,  44  L.  Ed.  747;  it  is  not  nece  iry  that 
the  proceedings  in  a  state  court  should  be 
by  particular  mode,  hut  only  that  there  shall 
be  a  regular  course  of  proceedings  in  which 
notice  is  given  of  the  claim  asserted  and  an 
opportunity  to  defend  against  it";  Simon  v. 
Craft,  182  U.  S.  427,  21  Sup.  Ct  836,  1",  L. 
Ed.  1165,  citing  Louisville  &  N.  R.  Co.  v. 
Schmidt  177  U.  S.  230,  20  Sup.  Ct.  020,  44 
L.  Ed.  747. 

While  the  essential  element  of  due  process 
is  opportunity  to  be  heard,  a  necessary  con- 
dition of  which  is  notice;  Simon  v.  Craft, 
182  r.  s.  127,  21  Sup.  Ct.  836,  45  L.  Ed.  1165; 
personal  notice  is  not  always  necessary;  .la- 
cob  v.  Roberts,  223  U.  S.  261,  32  Sup.  Ct 
303,  56  L.  Ed.  429. 

It  is  necessary  that  a  tax  payer  be  afford- 
ed a  hearing,  of  which  he  must  have  notice, 
and  this  requirement  is  not  satisfied  by  the 
mere  right  to  file  objections  in  writing;  Lon- 
doner v.  Denver,  210  V.  S.  373,  28  Sup.  Ct. 
708,  52  L.  Ed.  1103,  where  it  was  held  that 
the  legislature  may  authorize  municipal  im- 
provements without  any  petition  of  land 
owners  who  are  to  be  assessed  therefor  and 
the  proceedings  of  the  municipality  in  ac- 
cordance with  the  charter  and  without  hear- 
ings, do  not  deny  due  process  of  law  to  land 
owners  who  are  afforded  a  hearing  on  the 
assessment  itself. 

Federal  courts  follow  state  courts  in  de- 
ciding as  to  notice  and  service  under  a  state 
statute;  Ballard  v.  Hunter,  204  U.  S.  241, 
27  Sup.  Ct.  261,  51  L.  Ed.  461. 

A  statute  providing  for  the  taking  of  pri- 
vate property  for  a  railroad  and  Cor  the  as- 
sessment of  damages  by  commissioners,  need 
not,    under   the    Delaware    constitution,    pro- 
vide for  notice  to  the  owner  of  the  tin 
place  of  meeting  of  the  commissioners,  nor 
need  it  secure  to  the  owner  a  hearing;  the 
United    States   constitution   and    amendments 
impose  no    restraint    upon    the   states    in    the 
exercise  of  the  right  of  eminent  domain,  and 
the  words,  "due  course  of  law,"  in  th 
constitution  do  not  apply  thereto;  Wi] 
R.  Co.,  5  Del.  Ch.  524,  in  which  case  U 
thorities  are  collected  and   the  construction 
of  these    words    exhaustively    considered    by 
Saulsbury,    Ch.     But   as   to   this   and   some 
other   cases,  holding   that  notice   is  not   re- 


quired,   see    Emimint    Domain,    sultit. 
tu  e  and  P 

As   to   the  doctrine  of  due  efore 

the  civil  wa .  in  in 

•Jl   Harv.   L.   R< 

27  Am.  Law  Reg.  611,  7 
31   Am.  St   Re]  .    U  : 
Grand  v  D.  s..  12 
ty   v.    Southern    Pac.    R.   i 
3   L  R.  A.  194  :  4  L   R.  A.  724;  21    L. 
780. 

As    to   as  !    for    Imp  tfl     or 

benefits,  see  !  'iain. 

DUELLING.     The   lighting  of  two 

ainst  the  other,  at  an  appointed  time 
and  place,  upon  a  precedent  quarreL    It  dif- 
fers from  an  affray  In  this,  that  the 
occurs   on  a    sudden   quarrel,   while   ti- 
mer is  always  the  result  of  design. 

When  one  of  the  parties  is  killed,  th. 
vivor  is  guilty  of  murder;  l  Ru  a.  Ct. 
Smith  v.  state,  i  lerg.  (Tenn.)  228;  as  the 
deliberate  killing  of  another  in  a  duel  is  not 
a  killing  in  a  heat  of  passion  which  will 
mitigate  the  crime,  however  grievous  the 
provocation  nay  have  been;  •"•  Last  581;  s 
Carr.  &  P,  644;  hut  evidence  of  a  mutual 
willingness  to  light  upon  the  |  "sons, 

one  of  whom  killed  the  other  in  a  fight  has 
been    held   to    authorize   an    instruction   that 
was  murder  in  the  second  degree; 
Wiley  v.  State   (Tex.  i   65  S.  W.   L! 

Lighting  a   duel,   even   where   there   i>    DO 
fatal  result,  is  of  itself  a  misdemeanor. 
2  Com.  Dig.  252;  Clark,  Cr.  L.  340;  C 
Inst.  157;  Const.    167;   Barker  v.  People,  20 
Johns.    (N.  Y.l    -157;    Stale  v.   Herri. -tt.   1  Mc- 
MulL   (S.  C.)   126.     For  cases  of  mutual  com- 
bat  upon   a  sudden  quail 
105;   2  L.ish.  Cr.  Law  [  311.     Dnder  tl  • 
stitutions  of  some  states,  any   one  directly 
or  indirectly  engaged   in  a   duel   is   forever 
disqualified  from  holding  public  oMico 
Com.   v.  Jones,   10  Bush   (Ky.)   725;    I 

v.  People,  20  Johns.  (N.  Y.)   457;  M iy  v. 

Com.,  4   Mete.    (Ky.)    1;   State   v.    Dupont,   - 

:::•[  ;    Royal!   v.  Th  m 
Qratt    I  \'a.)   130,  26  I  -p.   335;   - 

LENQB. 

duellum.  Trial  by  battle  Judicial 
combat     Spelman,    Glosa      S  bh   of 

Battel. 

DUES.     When  used  of  a  corporation  It  in- 
cludes,  iu  the  Kansas  constitution,  all 
tractual     liabilities,     hut     net. 
stockholder,  an  ultra  contract     Ward 

v.  Joslin.  HC.  Fed.  224,  44  C,  0.  A. 

DUKE.     The  title  given  to   those  who  are 
in   the   highest    rank    of  nobility   in    El  - 
Firel   held  by  the  Black  Prince,  as  a  superior 
kind  of   earldom. 

DUKE  OF  YORK'S  LAWS.  A  body  of 
laws  compiled  in  1665  for  the  government  of 
the  colony  of  New  York. 


DUM  SE  BENE  GESSERIT 


958 


DUNNAGE 


DUM  SE  BENE  GESSERIT  (Lat.  while  he 
shall  conduct  himself  well).  These  words 
signify  that  a  judge  or  other  officer  shall 
hold  his  office  during  good  behavior,  and 
not  at  the  pleasure  of  the  crown  nor  for  a 
certain  limited  time. 

DUM  FUIT  IN  PRISONA  (L.  Lat).  A 
writ  which  lay  for  a  man  who  had  aliened 
lands  under  duress  by  imprisonment,  to  re- 
store to  him  his  proper  estates.  Co.  2d  Inst. 
4S2.    Abolished  by  stat  3  &  4  Will.  IV.  c.  27. 

DUM  FUIT  INFRA  /ETATEM  (Lat). 
The  name  of  a  writ  which  lay  when  an  in- 
fant had  made  a  feoffment  in  fee  of  his 
lands  or  for  life,  or  a  gift  in  tail.  Abolished 
by  stat.  3  &  4  Will.  IV.  c.  27. 

It  could  be  sued  out  by  him  after  he  came 
of  full  age,  and  not  before ;  but  in  the  mean- 
time he  could  enter,  and  his  entry  remitted 
him  to  his  ancestor's  rights;  Fitzh.  N.  B. 
192 ;  Co.  Litt  247,  337. 

DUM  NON  FUIT  COMPOS  MENTIS  (Lat). 
The  name  of  a  writ  which  the  heirs  of  a  per- 
son who  was  non  compos  mentis,  and  who 
aliened  his  lands,  might  have  sued  out  to  re- 
store him  to  his  rights.  Abolished  by  3  &  4 
Will.  IV.  c.  27. 

DUM  SOLA  (Lat  while  single  or  unmar- 
ried). A  phrase  to  denote  that  something 
has  been  done,  or  may  be  done,  while  a  wo- 
man is  or  was  unmarried.  Thus,  when  a 
judgment  is  rendered  against  a  woman  dum 
sola,  and  afterward  she  marries,  the  scire 
facias  to  revive  the  judgment  must  be  against 
both  husband  and  wife. 

DUM  SOLA  ET  CASTA  (Lat.  while  un- 
married and  chaste).  Decrees  for  alimony 
sometimes  provide  that  it  shall  be  paid  only 
so  long  as  the  divorced  wife  remains  unmar- 
ried and  chaste.     See  Divorce. 

DUMB.  Unable  to  speak ;  mute.  See 
Deaf  and  Dumb. 

DUMB-BIDDING.  In  sales  at  auction, 
when  the  amount  which  the  owner  of  the 
thing  sold  is  willing  to  take  for  the  article 
is  written,  and  placed  by  the  owner  under 
a  candlestick,  or  other  thing,  and  it  is  agreed 
that  no  bidding  shall  avail  unless  equal  to 
that,  this  is  called  dumb-bidding.  Babing- 
ton,  Auct  44. 

DUN.  One  who  duns  or,  urges  for  pay- 
ment; a  troublesome  creditor.  A  demand 
for  payment,  whether  oral  or  written. 
Stand.  Diet 

DUNGEON.  A  cell  under  ground;  a  place 
in  a  prison  built  under  ground,  dark,  or  but 
indifferently  lighted. 

DUNNAGE.  Pieces  of  wood  placed  against 
the  sides  and  bottom  of  the  hold  of  a  vessel, 
to  preserve  the  cargo  from  the  effect  of  leak- 
age, according  to  its  nature  and  quality.  Ab- 
bott, Shipp.  227. 

There    is    considerable    analogy    between 


dunnage  and  ballast.  The  latter  is  used  for 
trimming  the  ship  and  bringing  it  down  to 
a  draft  of  water  proper  and  safe  for  sailing. 
Dunnage  is  placed  under  the  cargo  to  keep 
it  from  being  wetted  by  water  getting  into 
the  hold,  or  between  the  different  parcels  to 
keep  them  from  bruising  and  injuring  each 
other;  Great  Western  Ins.  Co.  v.  Thwing, 
13  Wall.   (U.  S.)  674,  20  L.  Ed.  607. 

DUODECIMA  MAN  US  (Lat).  Twelve 
hands.  The  oaths  of  twelve  men,  including 
himself,  by  whom  the  defendant  was  allow- 
ed to  make  his  law.    3  Bla.  Com.  343. 

DUPLEX  QUERELA  (Lat).  A  complaint 
in  the  nature  of  an  appeal  from  the  ordinary 
to  his  next  immediate  superior  for  delaying 
or  refusing  to  do  justice  in  some  ecclesiasti- 
cal cause.     3  Bla.  Com.  247. 

DUPLEX  VALOR  MARITAGII  (Lat.  dou- 
ble the  value  of  a  marriage).  Guardians  in 
chivalry  had  the  privilege  of  proposing  a 
marriage  for  their  infant  wards,  provided  it 
were  done  without  disparagement,  and  if  the 
wards  married  without  the  guardian's  con- 
sent they  were  liable  to  forfeit  double  the 
value  of  marriage.  Co.  Litt  82  o;  2  Sharsw. 
Bla.  Com.  70. 

DUPLICATE  (Lat.  duplex,  double).  The 
double  of  anything.  A  document  which  is 
essentially  the  same  as  some  other  instru- 
ment 7  Mann.  &  G.  93 ;  Benton  v.  Martin, 
40  N.  Y.  345, 

A  duplicate  writing  has  but  one  effect. 
Each  duplicate  is  complete  evidence  of  the 
intention  of  the  parties.  When  a  duplicate 
is  destroyed,  for  example,  in  the  case  of  a 
will,  it  is  presumed  both  are  intended  to  be 
destroyed;  but  this  presumption  possesses 
greater  or  less  force,  owing  to  circumstances. 
When  only  one  of  the  duplicates  is  in  the 
possession  of  the  testator,  the  destruction  of 
that  is  a  strong  presumption  of  any  intent  to 
revoke  both ;  but  if  he  possessed  both,  and 
destroys  but  one,  it  is  weaker;  when  he 
alters  one,  and  afterwards  destroys  it,  re- 
taining the  other  entire,  it  has  been  held 
that  the  intention  was  to  revoke  both ;  1  P. 
Wms.  346;  13  Ves.  310.  But  that  seems  to 
be  doubted ;  3  Hagg.  Eccl.  548.  See  Com.  v. 
Beamish,  81  Pa.  3S9 ;  49  E.  C.  L.  94;  103 
id.  29;  Nelson  v.  Blakey,  54  Ind.  29.  As  to 
the  execution  of  a  number  of  deeds,  all  to 
constitute  one  deed,  see  Deed. 

In  English  Law.  The  certificate  of  dis- 
charge given  to  an  insolvent  debtor  who  takes 
the  benefit  of  the  act  for  the  relief  of  in- 
solvent debtors. 

DUPLICATIO  (Lat.  a  doubling).  The  de- 
fendant's second  answer;  that  is,  the  answer 
to  the  plaintiff's  replication. 

DUPLICATUM  JUS  (Lat  a  twofold  or 
double  right).  Words  which  signify  the  same 
as  droit  dreit,  or  droit  droit,  and  which  are 
applied  to  a  writ  of  right,  patent,  and  such 


DUPLICATUM    JUS 


959 


DLl'LI-Il  Y 


other  writs  of  right  as  are  of  the  same  na- 
ture, and  do  as  it  were  flow  from  it  as  the 
writ  of  right     Booth,  Real  Act  87. 

DUPLICITY  (Lat.  duplex,  twofold;  dou- 
ble). The  union  of  more  than  one  cause  of 
action  in  one  count  in  a  writ,  or  more  than 
one  defence  in  one  plea,  or  more  than  a 
single  breach  in  a  replication.  Jaei. 
Rundlet,  l  W.  &  M.  381,  Fed.  <'as.  No.  T.i  15. 

The  union  of  several  farts  constituting 
together  but  one  cause  of  action,  or  one  de- 
fence, or  one  breach,  do<  Citato  du- 
plicity; Torrey  v.  Field,  10  Vt  353;  Harker 
v.  Brink,  24  N.  J.  1,.  :;:;:; ;  Holland  v.  Kibbe, 
1G  ill.  133;  Bed  ley  v.  Moore,  i  McCord  (S. 
0.)  464  ;  State  v.  Bank,  :::;  Ml  ss.  :ti  ;  Gulf, 
C.  &  S.  F.  Ry.  Co.  v.  Buford,  2  Tex.  Civ. 
App.  115,  21  S.  W.  272;  State  v.  Chri 
101  N.  C.  749,  S  S.  E.  361  ;  Merriman  v. 
Mach.  Co.,  86  Wis.  ml',  :a;  n.  w.  743;  state 
v.  Warren,  77  Md.  121,  26  A 1 1 .  500,  :10  Am. 
St.  Rep.  401;  TracyV  Com.,  87  Ky.  578,  9 
S.  W.  822.  Though  the  joinder  of  two  or 
more  distinct  offences  in  one  count  of  an  in- 
dictment is  faulty,  yet  where  the  acts  im- 
puted are  component  parts  of  the  same  of- 
fence the  pleading  is  not  objectionable  for 
duplicity;  Farrell  v.  State.  54  X.  J.  L.  410, 
24  Atl.  723;  nor  is  it  where  one  of  the  two 
offences  charged  is  insulliciently  set  out; 
State  v.  Henn,  39  Minn.  47b\  40  N.  W.  572. 
It  must  be  of  causes  on  which  the  party  re- 
lies, and  not  merely  matter  introduced  in 
explanation;  Dunning  v.  Owen,  14  Mass. 
157.  In  trespass  it  is  not  duplicity  to  plead 
to  part  and  justify  or  confess  as  to  the  resi- 
due; Parker  v.  Parker,  17  Pick.  (Mass.i  236. 
If  only  one  defence  be  valid,  the  objection  of 
duplicity  is  not  sustained  ;  Porter  v.  Brack- 
enridge,  2  Blackf.  (Ind.)  385. 

It  may  exist  in  any  part  of  the  pleadings; 
the  declaration;  Morse  v.  Eaton,  23  N.  11. 
415;  Jarman  v.  Windsor,  2  Ilarr.  (Del.)  102 ; 
pleas;  Welch  v.  Jamison,  1  How.  (Miss.)  1G0; 
replication;  Benner  v.  Elliott,  5  Blackf. 
(Ind.)  451;  Calhoun  v.  Wright,  ;5  Scam.  (111.) 
74;  Bennett  v.  Martin,  G  Mo.  4G0 ;  or  subse- 
quent pleadings;  Tebbets  v.  Tilton,  24  X. 
II.  L20;  Dnited  states  v.  Gurney,  1  Wash.  C. 
C.  440,  Fed.  Cas.  No.  1.VJ71  ;  and  was  at 
common  law  a  fatal  defect;  Robinson  v. 
Rice,  2d  Mo.  229;  to  be  reached  on  demurrer 
only;  Cunningham  v.  Smith,  10  Gratt  (Va.) 
255,  GO  Am.  Dec.  333;  King  v.  Howard,  l 
Cush.  (Mass.)  137;  Gardiner  v.  Miles.  :,  Gill 
(Md.)  ;)i;  Benner  v.  Elliott,  5  Blackf.  (ind.) 
451;  People  v.  Clement.  4  Cal.  I'nrep.  493, 
35  Pac.  1022.  The  rules  against  duplicity 
did  not  extend  to  dilatory  pleas  so  as  to  pre- 
vent the  use  of  the  various  classes  in  their 
proper  older;  Co.  Litt  .''.01a;  Steph.  PI. 
App.   n.  56. 

Owing  to  the  statutory  changes  in  the 
forms  of  pleading,  duplicity  se< -.is  to  be  no 
longer  a  defect  in  many  of  the  states,  either 


i  rations;     Bl.-  D,    18 

:     King   v.    Howard,    1   ' 
137;   Bryan  v.  Buford,  7  J.  J.  Marsh. 
(Ky.)  335;   or  replica!  in  »r  \.  I 

8  Ind.  96 ;   though  In 

only  in   the  n   of  the  euurt,   for   the 

furtherance  of  jut  I . 

it  is  too  late  after  verdict  b  to  du- 

plicity in  an  Information  for  a 

v.  Armsti      •  w. 

604,  13  L.  R.  a.  419,  27  Am.  St  B 

DURANTE    ABSENTIA.        See    1. 

AND   ADMIMsi  i:.'.  rOBS. 

DURANTE    BENE   PLACIT0    (Lat).     Dur- 
od   pi"  asure.     The  ancient  tenui 
English  judges  was  durante  b<  /<<■  placi 
the  pleasure  of  the  I  I  Bla. 

Com.  267,  342. 

DURANTE        MIN0RE        /ETATE 
During  the  minority.     An  infant  can  i 
into  no  contracts  during  his  minor 

for  his  benefit     if  be  should  l  e 
pointed  an  executor,  administration  of  the 
estate  will  be  granted 
to  another  person.    2  Bouvier,  Inst  n.   1555 

DURANTE     VIDUITATE     (Lat.).      During 
widowhood. 

DURATION.     Extent,  limit  or  time.     Peo- 
ple v.  Hill,  7  Cal.  102. 

DURBAR.     In  India,  a  court,  audiei. 
levee. 

DURESS.      Personal    restraint,   or   fear   of 
personal  injury  or  imprisonment     Ha/ 
v.  Donaldson,  2  Mete.  (Ky.)  445. 

Duress   of  imprisonment    exists   whi 
man   actually   loses   his    liberty.      If   a    man 
he  illegally  deprived  of  his  liberty  until  be 
sign  and  seal  a  hond,  or  the  like,  he  may  al- 
lege this  duress  and   avoid    the  hond:     Heaps 
v.    Dunham,   9.">    111.   583;     Rollins   v.    I. 
71  Mc  218;    GuUleaume  v.  Rowe,  94   N.   V. 
26S,  4G  Am.  Rep.   111.     But   if  a  man  be  le- 
gally  imprisoned,   and.  either  to  procure  his 
discharge,  or  on  any  other  fair  account 
a  bond  or  a  deed,  this  is  not  by  dm 
imprisonment  and   he  Is  not  at   liberty   to 
avoid  it;    Co.  2d  Inst.  482;    Eddy  v.  Herrin, 
17  Me.  338,  35   Am.    Dec   261  :    Mas« 
Montesanto,    61    Conn.   50,   23   Atl.   71 1.   29 
Am.  st.  Rep.  170.    Where  the  proceed!] 
law  are  a  mere  pretext  the  Instrument 
he  avoided  ;    Aleyn  92;    1   Bla.  Com.  136. 

Duress  per  minas,  which  is  either  for  fear 
of  loss  of   life,   or  else   for   fear   of   ma; 
or  loss  of  limb,   must   be  upon  a   sufl 

reason;  1  Ida.  Coin.  l.'M.  In  this  Case,  ■ 
man  may  avoid  his  own  act  Coke  enumer- 
ates four  Instances  In  which  a  man  may 
avoid  his  own  act  by  reason  of  menaces:  For 
fear  of  lOSS  Of  lif<' :  Of  M 
of  imprisonment;  Co.  2d  Inst  iv":  2  RoUe, 
Abr.  124;  Baa  Abr.  Duress,  Murder,  A;  2 
i.d.  Raym.  1578;    Savigny,  Dr.  Rom.  §  114: 


DURESS 


9G0 


DURESS 


Motz  v.  Mitchell,  91  Pa.  114 ;  Brown  v.  Pierce, 
7  Wall.  (U.  S.)  205,  19  L.  Ed.  134. 

It  has  been  held  that  restraint  of  goods 
under  circumstances  of  hardship  will  avoid 
a  contract;  Collins  v.  Westbury,  2  Bay  (S. 
C.)  211,  1  Am.  Dec.  643;  Spaids  v.  Barrett, 
57  111.  2S9,  11  Am.  Rep.  10 ;  Radich  v.  Hutch- 
ins,  95  U.  S.  210,  24  L.  Ed.  409;  11  Exch. 
878.  But  see  Hazelrigg  v.  Donaldson,  2 
Mete.  (Ky.)  445 ;  Maisonnaire  v.  Keating,  2 
Gall.  337,  Fed.  Cas.  No.  8,978;  Block  v.  U. 
S.,  8  Ct.  CI.  461 ;  Lehman  v.  Shackleford,  50 
Ala.  437. 

The  duress  to  avoid  a  deed  is  that  which 
compels  the  grantor  to  do  what  he  would  not 
do  voluntarily;  Savage  v.  Savage,  80  Me. 
472,  15  Atl.  43 ;  Hackley  v.  Headley,  45  Mich. 
569,  8  N.  W.  511;  Griffith  v.  Sitgreaves,  90 
Pa.  161.  If  a  contract  is  made  under  duress 
and  subsequently  ratified,  it  becomes  valid; 
Ferrari  v.  Board  of  Health,  24  Fla.  390,  5 
South.  1 ;  Belote  v.  Henderson,  5  Coldw. 
(Tenn.)  471,  9S  Am.  Dec.  432. 

The  violence  or  threats  must  be  such  as 
are  calculated  to  operate  on  a  person  of  or- 
dinary firmness  and  inspire  a  just  fear  of 
great  injury  to  person,  reputation,  or  for- 
tune. See  Seymour  v.  Prescott,  G9  Me.  376 ; 
McClair  v.  Wilson,  18  Colo.  82,  31  Pac.  502 ; 
Bosley  v.  Shanner,  26  Ark.  2S0 ;  Mollere  v. 
Harp,  36  La.  Ann.  471.  The  resisting  power 
which  any  man  is  bound  to  exercise  for  his 
own  protection  was  measured,  in  the  com- 
mon law,  by  the  standard  of  a  man  of  cour- 
age, as  a  part  of  the  law  itself ;  Galusha  v. 
Sherman,  105  Wis.  263,  81  N.  W.  495,  47  L. 
R.  A.  417.  There  is  no  legal  standard  of  re- 
sistance which  a  person  acted  upon  must 
come  up  to  at  his  peril  of  being  remediless. 
The  question  in  each  case  is:  Was  the  person 
so  acted  upon  by  threats  of  the  person  claim- 
ing the  benefit  of  the  contract,  for  the  pur- 
poses of  obtaining  it,  as  to  be  bereft  of  the 
quality  of  mind  essential  to  the  making  of 
a  contract,  and  was  the  contract  thereby  ob- 
tained;    Galusha  v.  Sherman,   105  Wis. '263, 

81  N.  W.  495,  47  L.  R.  A.  417.  The  age,  sex, 
state  of  health,  temper,  and  disposition  of 
the  party,  and  other  circumstances  calculated 
to  give  greater  or  less  effect  to  the  violence 
of  threats,  must  be  taken  into  consideration; 
1  Ky.  L.  Rep.  137;  Parmentier  v.  Pater,  13 
Or.  121,  9  Pac.  59;  U.  S.  v.  Huckabee,  16 
Wall.  (U.  S.)  432,  21  L.  Ed.  457. 

Violence  or  threats  will  amount  to' duress 
not  only  where  they  are  exercised  on  the 
contracting  party,  but  when  the  wife,  the 
husband,  or  children  of  the  party  are  the  ob- 
ject of  them;   Eadie  v.  Slimmon,  26  N.  Y.  12, 

82  Am.  Dec.  395 ;  Harris  v.  Carmody,  131 
Mass.  51,  41  Am.  Rep.  18S.  The  defence  was 
sustained  where  a  father  was  coerced  into 
executing  a  mortgage  to  secure  restitution  of 
his  son's  defalcation  by  threats  of  prosecu- 
tion ;  Williamson,  Hal  sell,  Frazier  Co.  v. 
Ackerman,  77  Kan.  502,  94  Pac.  807,  20  L.  R. 


A.  (N.  S.)  4S4 ;  McCormick  Harvesting  Mach. 
Co.  v.  Hamilton,  73  Wis.  486,  41  N.  W.  727 ; 
Bryant  v.  Peck  &  Whipple  Co.,  154  Mass. 
460,  28  N.  E.  67S;  where  a  father  gave  a 
note  to  avoid  prosecution  of  his  son  and 
son-in-law ;  Folmar  v.  Siler,  132  Ala.  297,  31 
South.  719;  National  Bank  of  Oxford  v. 
Kirk,  90  Pa.  49 ;  where  a  wife  gave  a  note 
and  mortgage  to  prevent  prosecution  of  her 
husband,  he  being  already  under  arrest; 
Jones  v.  Dannenberg  Co.,  112  Ga.  426,  37  N. 
E.  729,  52  L.  R.  A.  271  (even  though  the 
note  was  in  the  hands  of  a  bona  fide  holder, 
etc.);  Harris  v.  Webb,  101  Ga.  84,  28  S.  E. 
020 ;  but  not,  where  a  son-in-law  was  threat- 
ened with  prosecution,  the  father-in-law, 
with  deliberation,  gave  his  notes  and  agreed 
with  his  daughter  that  they  should  constitute 
an  advancement ;  Loud  v.  Hamilton  (Tenn.) 
51  S.  W.  140,  45  L.  R.  A.  400;  or  where  a 
mortgage  was  given  to  stop  a  threatened 
prosecution  of  the  mortgagor's  husband,  but 
no  promise  was  given  not  to  prosecute ;  Moy- 
er  v.  Dodson,  212  Pa.  344,  61  Atl.  937;  or 
where  one  agreed  not  to  prosecute  his  agent 
if  he  would  make  restitution  of  his  em- 
bezzled funds;  Allen  v.  Dunham,  92  Tenn. 
257,  21  S.  W.  898. 

If  the  violence  used  be  only  a  legal  con- 
straint, or  the  threats  only  of  doing  that 
which  the  party  using  them  had  a  right  to  do, 
they  shall  not  invalidate  the  contract.  A 
just  and  legal  imprisonment,  or  threats  of 
any  measure  authorized  by  law  and  the  cir- 
cumstances of  the  case,  are  of  this  descrip- 
tion. See  Norris,  Peake's  Ev.  440,  and  the 
cases  cited ;  also,  Watkins  v.  Baird,  6  Mass. 
506,  4  Am.  Dec.  170;  Thorn  v.  Pinkham, 
84  Me.  103,  24  Atl.  718,  30  Am.  St.  Rep.  335 ; 
Hilborn  v.  Bucknam,  7S  Me.  4S2,  7  Atl.  272, 
57  Am.  Rep.  816.  A  man  lawfully  arrested 
on  a  warrant  for  seduction,  who,  to  procure 
his  discharge  marries  the  woman,  cannot 
have  the  marriage  declared  void ;  Marvin 
v.  Marvin,  52  Ark.  425,  12  S.  W.  875,  20  Am. 
St.  Rep.  191;  Lacoste  v.  Guidroz,  47  La.  Ann. 
295,  16  South.  836 ;  Johns  v.  Johns,  44  Tex. 
40;  Williams  v.  State,  44  Ala.  24;  Sickles 
v.  Carson,  26  N.  J.  Eq.  440;  Blankenmiester 
v.  Blankenmiester,  106  Mo.  App.  390,  80  S. 
W.  706 ;  Griffin  v.  Griffin,  130  Ga.  527,  61  S. 
E.  16,  16  L.  R.  A.  (N.  S.)  937,  14  Ann.  Cas. 
866.  A  marriage  between  cousins,  upon  the 
threat  of  the  man  that  if  the  woman  would 
not  marry  him  he  would  blow  out  his  brains, 
would  not  be  set  aside,  where  the  woman 
went  through  the  marriage  ceremony  with- 
out any  sign  of  unwillingness,  though  the 
marriage  was  never  consummated,  and  the 
man  admitted  that  he  had  only  married  her 
for  her  money,  and  she  was  of  a  weak  char- 
acter; [1891]  P.  369.  To  constitute  duress 
which  will  be  regarded  as  sufficient  to  make 
a  payment  involuntary  there  must  be  some 
actual  or  threatened  exercise  of  power  pos- 
sessed  or   believed   to    be  possessed   by   the 


DURESS 


9G1 


DURESS 


party  exacting  the  payment  over  the  person 
or  property  of  another,  for  which  the  latter 
has  no  other  means  of  Immediate  relief  than 
by  making  the  payment;  Etadich  v.  Hutch- 
ins  95  U.  S.  210,  24  L.  Ed.  409.  There  is  no 
Ironclad  rule  which  confines  an  involuntary 
payment  to  cases  of  duress.  Money  coin- 
pulsorily  paid  to  prevent  an  injury  to  one's 
property  rights  comes  within  the  same  prin- 
ciple; Buckley  v.  Mayor,  30  App.  Div.  4G3,  52 
N.  Y.  Supp.  452.  One  who  negotiates  a  loan 
to  take  up  an  existing  mortgage  upon  which 
foreclosure  proceedings  have  been  begun,  and 
who  is  required  under  protest  to  pay  an  il- 
legal bonus  to  secure  a  discharge  of  the  inort- 
gage,  acts  under  duress  in  so  doing,  and  can 
recover  the  amount  paid;  Kilpatrick  v.  Ins. 
Co.,  1S3  N.  Y.  1G3,  75  X.  E.  1124,  2  L  R.  A. 
(N.   S.)   574,   110  Am.   St.   Rep.   722. 

As  to  other  contracts  it  is  said  that  threats 
of  imprisonment,  to  constitute  duress,  must 
be  of  unlawful  imprisonment.  But  the  ques- 
tion is  whether  the  threat  is  of  imprisonment 
which  will  be  unlawful  in  reference  to  the 
conduct  of  the  threatener.  Imprisonment 
that  is  suffered  through  the  execution  of  a 
threat  which  was  made  for  the  purpose  of 
forcing  a  guilty  person  to  enter  into  a  con- 
tract may  be  lawful  as  against  the  authori- 
ties and  the  public,  but  unlawful  as  against 
the  threatener,  when  considered  in  reference 
to  his  effort  to  use  for  his  private  benefit 
processes  provided  for  the  protection  of  the 
public.  One  who  has  overcome  the  will  of 
another  for  his  own  advantage,  under  such 
circumstances,  is  guilty  of  a  perversion  and 
abuse  of  laws  which  were  made  for  another 
purpose,  and  he  is  in  no  position  to  claim  the 
advantage  of  a  formal  contract  obtained  in 
that  way,  on  the  ground  that  the  rights  of 
the  parties  are  to  be  determined  by  their 
language  and  their  overt  acts,  without  ref- 
erence to  the  influences  which  moved  them  ; 
Morse  v.  Woodworth,  155  Mass.  233,  27  X.  E. 
1010,  29  N.  E.  525;  Burton  v.  McMillan,  52 
Fla.  4<;:t.  42  South.  S49,  S  L.  R.  A.  (N.  S.)  991, 
120  Am.  St.  Rep.  220,  11  Ann.  Cas.  3S0;  Gor- 
ringe  v.  Reed,  23  Utah,  120,  63  Pac.  902,  90 
Am.  St.  Rep.  692;  Harm-eaves  v.  Korcek,  44 
Neb.  6G0,  62  X.  W.  1086 ;  and  to  the  same  ef- 
fect, Lomerson  v.  Johnston,  44  X.  J.  Eq.  93, 
13  Atl.  8;  Coffman  v.  Bank,  5  Lea  (Tenn.) 
232,  40  Am.  Rep.  31;  Bell  v.  Campbell,  123 
Mo.  1,  25  S.  W.  359,  45  Am.  St.  Rep.  505; 
Heaton  v.  Bank,  59  Kan.  281,  52  Pac.  876. 

In  the  early  common  law,  duress,  strictly 
so  called,  was  a  matter  of  law.  It  was 
pleadable  as  a  defence  or  as  material  to  a 
cause  of  action,  by  alleging  the  existence  of 
specific  circumstances  legally  suilicient  to 
constitute  duress.  Oppression  of  one  person 
bf  another,  causing  such  person  to  surrender 
something  of  value  to  another,  not  amount- 
ing to  duress  within  the  rigorous  rules  of 
law,  regardless  of  whether  the  oppression  ac- 
tually deprived  the  oppressed  party  of  the 
Bouv.-61 


exercise  of  his  free  will,  was  remediless  ex- 
cept by  an  appeal  to  equity,  where  a  remedy 
was  obtainable  on  the  ground  of  unlawful 
compulsion;  Galusha  v.  Sherman,  105  Wis. 
263,  81  N.  W.  495,  17  L.  R.  A.  417,  where  it  is 
said  that  the  real  foundation  principle  of 
duress  is  that  it  is  the  condition  of  mind  of 
the  wronged  person  at  the  time  of  the  act 
sought  to  he  avoided,  not  the  means  by  which 
such  a  condition  was  produced.  In  its  broad 
sense  duress  is  now  -aid  to  include  all  in- 
stances where  a  condition  of  mind  of  a  per- 
son caused  by  fear  of  personal  injury  or  h 
of  limb,  or  injury  to  such  person's  property. 
wife,  Child,  or  husband,  is  produced  by  tin- 
wrongful  conduct  of  another,  rendering  such 
person  incompetent  to  contract  with  the  ex- 
ercise of  his  free  will  power:  Williamson  v. 
rman,  77  Kan.  502,  94  Pac.  807,  20  L. 
R.  A.  (X.  S.)  484,  whether  formerly  re- 
lievahle  at  law  on  the  ground  of  duress  or 
in  equity  on  the  ground  of  wrongful  compul- 
sion ;  Galusha  v.  Sherman,  105  Wis.  263,  81 
X.  W.  495,  -17  L.  R.  A.   117. 

Threats  of  unlawful  imprisonment  are  not 
necessary  to  constitute  duress.  It  was  never 
contemplated  in  the  law  that  either  the 
actual  use  or  misuse  of  criminal  proc. 
legal  or  illegal,  should  be  resorted  to  for  the 
purpose  of  compelling  the  payment  of  a  mere 
debt,  or  to  coerce  the  making  of  contracts. 
Ample  civil  remedies  are  afforded  in  the  law 
to  enforce  the  payment  of  debts  and  the  per- 
formance of  contracts;  but  the  criminal  law 
and  the  machinery  for  its  enforcement  have 
a  wholly  different  purpose  and  cannot  be  em- 
ployed to  interfere  with  that  wise  and  just 
policy  of  the  law  that  all  contracts  and 
agreements  shall  be  founded  upon  the  exer- 
cise of  the  free  will  of  the  parties,  which  is 
the  real  essence  of  all  contracts;  Hartford 
Fire  Ins.  Co.  v.  Kirkpatrick,  Dunn  &  Co., 
Ill  Ala.  456,  20  South.  Col  ;  Adams  v.  Bank, 
116  N.  Y.  606,  2:1,  X.  E.  7,  6  L,  R.  A.  491,  15 
Am.  St  Rep.  447;  Henry  v.  Bank,  131  la 
97,  107  X.  W.  ln:l  1;  Williamson.  Halsell 
Frazier  Co.  v.  Ackerman.  77  Kan.  502,  '.'1 
Pac.  S07,  20  L.  R.  X.  (X.  S.)  484;  Burton  \ 
McMillan.  52  Fla.  228,  42  South.  S79,  11  L. 
R,  A.  (X.  S.)   159. 

Excessive  charges  paid  to  railroad  com- 
panies refusing  to  carry  or  deliver  Lroods,  un- 
less these  payments  were  made  voluntarily, 
have  been  recovered  on  the  ground  of  dw 
27  L.  J.  Ch.  137;  32  id.  225;  30  L.  J.  I 
361 ;  28  id.  169.  Where  the  carrier  refuses 
to  transport  stock  until  a  special  contract  Is 
signed  limiting  its  liability,  it  does  not  bind 
the  shipper;  Atchison,  t.  &  S.  F.  R.  Co.  v. 
Dill.  48  Kan.  210,  29  Pac.  148. 

Where,  in  addition  to  money  penalties  for 
delay  in  payment  of  a  tax.  there  is  forfeiture 
of  the  right  to  do  business  and  risk  of  hav- 
■  ieclared    illegal    for   non-pay- 
ment thereof,  payment  is  made  under  duress. 

'Courts  sometimes  perhaps  have  been  a  little 
too  slow  to  recognize  the  implied  duress  und«>r 


DURESS 


962 


DWELLING-HOUSE 


which  payment  is  made"  of  taxes;  Atchison, 
T.  &  S.  F.  Ry.  Co.  v.  O'Connor,  223  U.  S.  280, 
32  Sup.  Ct.  216,  56  L.  Ed.  436,  Ann.  Cas. 
1913C,  1050;  Gaar,  Scott  &  Co.  v.  Shannon, 
223  U.  S.  468,  32  Sup.  Ct.  236,  56  L.  Ed.  510. 

The  burden  of  proving  duress  is  on  the 
party  alleging  it;  Horton  v.  Bloedorn,  37 
Neb.  666,  56  N.  W.  321. 

There  is  said  to  be  some  conflict  in  the 
authorities  upon  the  question  whether  the 
defence  of  duress  by  threats  can  be  success- 
fully urged  against  a  bona  fide  holder  for 
value  of  negotiable  paper,  and  that  the  bet- 
ter opinion  and  weight  of  authority  is  that 
such  defence  stands  upon  the  same  footing  as 
other  defences  wfiich  may  be  made  as  be- 
tween the  original  parties,  but  is  cut  off 
when  the  paper  reaches  the  hands  of  a  bona 
fide  holder ;  Fairbanks  v.  Snow,  145  Mass. 
153,  13  N.  E.  596,  1  Am.  St  Rep.  446 ;  Farm- 
ers' Bank  of  Grand  Rapids  v.  Butler,  4S 
Mich.  192,  12  N.  W.  36;  Clark  v.  Pease,  41 
N.  H.  414;  Beals  v.  Neddo,  2  Fed.  41,  1  Mc- 
Crary  206.  If  such  a  contract  be  simply  a 
voidable  one,  then  it  follows  naturally  that, 
when  the  contract  consists  of  negotiable  pa- 
per, the  defence  is  cut  off  by  transfer  to  a 
bona  fide  purchaser  before  maturity,  in  the 
same  manner  that  other  defences  upon  the 
ground  of  fraud  are  cut  off ;  Mack  v.  Prang, 
104  Wis.  1,  79  N.  W.  770,  45  L.  R.  A.  407,  76 
Am.  St.  Rep.  848.  Is  a  defense  to  all  save 
the  gravest  crimes,  and  one  cannot,  under 
compulsion  kill  another  person,  even  in  order 
to  save  his  own  life;  8  C.  &  P.  616. 

DURHAM.     See  County  Palatine. 

DURSLEY.  In  Old  English  Law.  Blows 
without  wounding  or  bloodshed;  dry  blows. 
Blount. 

DUTIES.  In  its  most  enlarged  sense,  this 
word  is  nearly  equivalent  to  taxes ;  State  v. 
Telegraph  Co.,  73  Me.  518;  Blake  v.  People, 
109  111.  504;  embracing  all  impositions  or 
charges  levied  on  persons  or  things ;  in  its 
more  restrained  sense,  it  is  often  used  as 
equivalent  to  customs,  or  imposts.  Story, 
Const.  §  949.  In  common  use,  an  indirect 
tax  imposed  on  the  importation  or  consump- 
tion of  goods.  Pollock  v.  Trust  Co.,  158  U.  S. 
601,  15  Sup.  Ct.  912,  39  L.  Ed.  1108. 

DUTY.  A  human  action  which  is  exactly 
conformable  to  the  laws  which  require  us  to 
obey  them. 

That  which  is  right  or  due  from  one  to 
another.  A  moral  obligation  or  responsi- 
bility. 

It  differs  from  a  legal  obligation,  because  a  duty 
cannot  always  be  enforced  by  the  law:  it  is  our 
duty,  for  example,  to  be  temperate  in  eating,  but  we 
are  under  no  legal  obligation  to  be  so  ;  we  ought  to 
love  our  neighbors,  but  no  law  obliges  us  to  love 
them. 

DWELLING;- HOUSE.  A  building  inhab- 
ited by  man.  A  house  usually  occupied  by 
the  person  there  residing,  and  his  family. 
The  apartment,  building,  or  cluster  of  build- 


ings in  which  a  man  with  his  family  resides. 
2  Bish.  Cr.  Law  §  104. 

The  importance  of  an  exact  signification  for  this 
word  is  often  felt  in  criminal  cases  ;  and  yet  It  is 
very  difficult  to  frame  an  exact  definition  which  will 
apply  to  all  cases.  It  is  said  to  be  equivalent  to 
mansion-house;  Com.  v.  Pennock,  3  S.  &  R.  (Pa.) 
199 ;  State  v.  Sutcliffe,  4  Strobh.  (S.  C.)  372 ;  7 
Mann.  &  G.  122.  See  14  M.  &  W.  181 ;  4  C.  B.  105  ; 
Com.  v.  Posey,  4  Call   (Va.)  109,  2  Am.  Dec.  560. 

Judge  Cooley,  in  Stearns  v.  Vincent,  50 
Mich.  219,  15  N.  W.  86,  45  Am.  Rep.  37,  says 
that  in  the  law  of  burglary  the  dwelling- 
house  is  deemed  to  include  whatever  is  with- 
in the  curtilage,  even  though  not  inclosed 
with  the  dwelling,  if  used  with  it  for  domes- 
tic purposes;  People  v.  Taylor,  2  Mich.  250; 
Pitcher  v.  People,  16  Mich.  142. 

It  must  be  a  permanent  structure ;  1  Hale, 
PI.  Cr.  557 ;  1  Russ.  Cr.  798 ;  must  be  inhab- 
ited at  the  time;  2  Leach  1018,  n. ;  State  v. 
Warren,  33  Me.  30;  Ex  parte  Vincent,  26  Ala. 
145,  62  Am.  Dec.  714;  Com.  v.  Barney,  10 
Cush.  (Mass.)  479;  People  v.  Cotteral,  18 
Johns.  (N.  T.)  115;  Com.  v.  Posey,  4  Call 
(Va.)  109,  2  Am.  Dec.  560;  Scott  v.  State, 
62  Miss.  782.  It  is  sufficient  if  a  part  of  the 
structure  only  be  used  for  an  abode;  Russ. 
&  R.  185;  Stedman  v.  Crane,  11  Mete. 
(Mass.)  295;  Cole  v.  State,  9  Tex.  42;  2  B. 
&  P.  508;  Dale  v.  State,  27  Ala.  31.  How 
far  a  building  may  be  separate  is  a  difficult 
question;  Com.  v.  Estabrook,  10  Pick. 
(Mass.)  293;  State  v.  Langford,  12  N.  C. 
253;  Armour  v.  State,  3  Humphr.  (Tenn.) 
379;  State  v.  Ginns,  1  N.  &  McC.  (S.  C.)  583; 
Com.  v.  Sanders,  5  Leigh  (Va.)  751 ;  People 
v.  Dupree,  98  Mich.  26,  56  N.  W.  1046 ;  Bruce 
v.  Cloutman,  45  N.  H.  37,  84  Am.  Dec.  Ill; 
Chase  v.  Ins.  Co.,  20  N.  Y.  52 ;  18  Q.  B.  783 ; 
22  Ir.  L.  T.  Rep.  30 ;  State  v.  Clark,  89  Mo. 
430,  1  S.  W.  332 ;  Davis  v.  State,  38  Ohio  St. 
506 ;  State  v.  Mordecai,  68  N.  C.  207. 

A  suite  of  rooms  in  a  college  of  the  Uni- 
versity of  Cambridge  is  a  dwelling-house ; 
L.  R.  4  C.  P.  539.  Six  separate  tenants  occu- 
pied a  house  of  ten  rooms,  each  having  ex- 
clusive possession  of  his  part  of  the  premis- 
es and  the  owner  did  not  reside  there.  The 
outer  and  street  door  had  no  lock  or  bolt 
and  was  always  kept  open.  The  entry,  stair- 
way, and  an  ashpit  and  other  conveniences 
were  used  in  common.  Two  of  the  judges 
held  that  each  of  the  six  tenants  occupied  a 
"dwelling-house,"  and  two  held  otherwise; 
L.  R.  6  C.  P.  327. 

DWELLING-PLACE.         See       Residence; 

DOMICIL. 

DYING  DECLARATIONS.  Dying  declara- 
tion of  one  who  did  not  believe  in  a  Supreme 
Being  are  admissible,  but  are  thereby  dis- 
credited. Gambrell  v.  State,  92  Miss.  728, 
46  South.  138,  17  L.  R.  A.  (N.  S.)  291,  131 
Am.  St.  549,  16  Ann.  Cas.  147.  See  Declara- 
tion. 

DYING  WITHOUT  ISSUE.  Not  having 
issue   living   at  the  death  of   the   decedent. 


DYING  WITHOUT  ISSUE 


9G3 


DYSNOMY 


Van  Vechten  v.  Pearson,  5  Paige,  Ch.  (N.  Y.) 
514;  Fairehild  v.  Crane,  13  N.  J.  Eq.  105. 
In  England  this  is  the  signification,  by  stat- 
utes 7  Will.  IV.;  1  Vict.  c.  26,  §  29.  But  the 
old  English  rule,  that  the  words,  when  ap- 
plied to  real  estate,  import  an  indefinite  fail- 
ure of  issue,  has  been  generally  adhered  to 
in  this  country;  Den  v.  Allaire,  20  N.  J.  L. 
6;  Wilson  v.  Wilson,  32  Barb.  (N.  Y.)  328; 
Wallis  v.  Woodland,  32  Md.  101.  See  2 
Washb.  R.  P.  302 ;  4  Kent  273. 

DYNASTY.     A  succession  of  kings  in  the 
same  line  or  family. 


DYSNOMY.  Bad  legislation;  the  enact- 
ment of  bad  laws. 

DYSPEPSIA.  The  group  of  symptoms  re- 
sulting from  alterations  in  the  process  of  di- 
gestion due  either  to  functional  or  organic 
diseases  of  the  stomach. 

Dyspepsia  is  not,  in  general,  considered  as 
a  disease  which  tends  to  shorten  life,  so  as 
to  make  a  life  uninsurable,  unless  the  com- 
plaint has  become  organic  dyspepsia,  or  was 
of  such  a  degree  at  the  time  of  the  insurance 
as  by  its  excess  to  tend  to  shorten  life;  4 
Taunt  763. 


E  CON VERSO 


904 


EAIIL, 


E  CONVERSO  (Lat).  On  the  other  hand; 
on  the  contrary.     Equivalent  to  e  contra. 

EAGLE.  A  gold  coin  of  the  United  States 
of  the  value  of  ten  dollars. 

It  weighs  two  hundred  and  fifty-eight  grains  of 
standard  fineness  ;  that  is  to  say,  of  one  thousand 
parts  by  weight,  nine  hundred  shall  be  of  pure 
metal  and  one  hundred  of  alloy,  the  alloy  consisting 
of  silver  and  copper. 

The  act  of  February  12,  1873,  Rev.  Stat.  §  3514,  fixes 
the  proportion  of  silver  at  in  no  case  more  than  one- 
tenth  of  the  whole  alloy. 

For  all  sums  whatever  the  eagle  is  a  legal  tender 
for  ten  dollars.    U.  S.  Rev.  Stat.  §  3585. 

EALDORMAN  (Sax.).  A  Saxon  title  of 
honor.  It  was  a  mark  of  honor  very  widely 
applicable,  the  ealdormen  being  of  various 
ranks.  The  chief  of  them  were  the  rulers 
almost  of  provinces.  After  the  Conquest 
they  disappeared  and  the  term  earl  became 
a  mere  title.     It  is  the  same  as  alderman. 

See  Seebohm,  Tribal  Customs;  2  Freeman, 
Norm.  Conq.  51. 

EARLDORMAN.  Said  to  be  a  false  spell- 
ing for  ealdorman.  Cent.  Diet.  But  see  2 
Holdsw.  Hist.  E.  L.  29,  giving  Earldorman. 

EAR-MARK.  A  mark  put  upon  a  thing 
for  the  purpose  of  distinction.  Money  in  a 
bag  tied  and  labelled  is  said  to  have  an  ear- 
mark.    3  Maule  &  S.  575. 

Also  used  in  equity  in  respect  of  property 
or  a  fund  in  the  hands  of  a  third  party, 
which  is  capable  of  identification  as  belong- 
ing to  the  claimant  out  of  possession. 

The  doctrine  that  money  has  no  ear-mark 
is  no  longer  law.  Property  entrusted  to  a 
person  in  a  fiduciary  capacity  may  be  fol- 
lowed as  long  as  it  may  be  traced,  and  where 
a  person  holding  money  as  trustee  or  in  a 
fiduciary  character  mixed  it  with  his  own 
and  draws  out  of  the  mixed  fund  for  his 
own  purposes,  the  court  presumes  that  his 
own  drawings  are  to  come  out  of  his  own 
money ;  13  Ch.  D.  696.  And  see  note  to  this 
case  citing  leading  English  cases  in  Brett's 
Lead.  Cas.  Mod.  Eq.  179. 

Where  police  on^cers,  in  arresting  bank 
burglars,  took  the  stolen  money  from  them 
and  claimed  to  hold  it  for  an  assignee  of  the 
burglars  (their  attorney  for  his  services) 
and  for  a  reward  offered,  it  was  held  that 
an  indemnity  company  which  had  indemni- 
fied the  bank  could  recover  the  specific  mon- 
ey from  the  police  officers;  ^Etna  Indemnity 
Co.  v.  Malone,  89  Neb.  260,  131  N.  W.  200. 

EAR-WITNESS.  One  who  attests  to 
things  he  has  heard  himself. 

EARL.  In  English  Law.  A  title  of  nobili- 
ty next  below  a  marquis  and  above  a  vis- 
count 

Earls  were  anciently  called  comites,  because  they 
were  wont  comitari  regem,  to  wait  upon  the  king 
for  counsel  and  advice.  They  were  also  called 
shiremen,  because   each  earl   had  the  civil  govern- 


ment of  a  shire.  After  the  Norman  conquest  they 
were  called  counts,  whence  the  shires  obtained  the 
names  of  counties.  They  have  now  nothing  to  do 
with  the  government  of  counties,  their  duties  having 
devolved  on  the  sheriff,  the  earl's  deputy,  or  vice- 
comes.     1  Bla.   Com.   398. 

EARL  MARSHAL.  An  officer  who  former- 
ly was  of  great  repute  in  England.  He  held 
the  court  of  chivalry  alone  as  a  court  of 
honor,  and  in  connection  with  the  lord  high 
constable  as  a  court  having  criminal  juris- 
diction. 3  Bla.  Com.  68 ;  4  id.  268.  The  du- 
ties of  the  office  now  are  restricted  to  the 
settlement  of  matters  of  form  merely.  It 
would  appear,  from  similarity  of  duties  and 
from  the  derivation  of  the  title,  to  be  a  relic 
of  the  ancient  office  of  alderman  of  all  Eng- 
land.    See  Coukt  of  the  Eael  Marshal. 

EARL'S  PENNY.     See  Aeles. 

EARL'S  THIRD  PENNY.  In  the  county 
court  and  in  every  hundred  court  the  king 
was  entitled  to  but  two-thirds  of  the  proceeds 
of  justice  and  the  earl  got  the  other  third, 
except  perhaps  in  some  exceptional  cases. 
Maitl.,  Domesday  and  Beyond  95. 

EARLDOM.  The  dignity  or  jurisdiction 
of  an  earl.  The  dignity  only  remains  now, 
as  the  jurisdiction  has  been  given  over  to  the 
sheriff;  1  Bla.  Com.  339. 

EARNEST.  The  payment  of  a  sum  of 
money  or  delivery  of  a  thing  or  token,  upon 
the  making  of  a  contract  for  the  sale  of 
goods,  to  bind  the  bargain,  the  delivery  and 
acceptance  of  which  marks  the  final  and 
conclusive  assent  of  both  parties  to  the  con- 
tract. 

The  payment  of  a  part  of  the  price  of  goods  sold, 
or  the  delivery  of  part  of  such  goods,  for  the  pur- 
pose of  binding  the  contract.  Howe  v.  Hayward, 
108   Mass.   54,   11  Am.   Rep.   306. 

It  has  been  stated  in  a  general  way  that  the  effect 
of  earnest  is  to  bind  the  goods  sold ;  and,  upon 
their  being  paid  for  without  default,  the  buyer  is 
entitled  to  them  ;  but,  notwithstanding  the  earnest, 
the  money  must  be  paid  upon  taking  away  the 
goods,  because  no  other  time  for  payment  is  ap- 
pointed; earnest  only  binds  the  bargain,  and  gives 
the  buyer  a  right  to  demand,  but  a  demand  without 
payment  of  the  money  is  void  ;  after  earnest  given, 
the  vendor  cannot  sell  the  goods  to  another  without 
a  default  in  the  vendee,  and  therefore  if  the  latter 
does  not  come  and  pay,  and  take  the  goods,  the 
vendor  ought  to  go  and  request  him,  and  then,  if 
he  does  not  come,  pay  for  the  goods,  and  take  them 
away  in  convenient  time,  the  agreement  is  dissolv- 
ed, and  the  vendor  is  at  liberty  to  sell  them  to  any 
other  person  ;  2  Bla.  Com.  447  ;  2  Kent,  Com.  495 ; 
2  H.  Bla.  316 ;  3  Campb.  426 ;  Neil  v.  Cheves,  1 
Bailey    (S.    C.)    537. 

There  is  great  difference  of  opinion  as  to  the  exact 
definition  of  this  word.  It  had  a  signification  at 
common  law  sufficiently  well  understood  to  warrant 
its  use  in  the  statute  of  frauds  of  29  Car.  II.  §  17, 
which  makes  parol  sales  of  goods,  etc.,  void  unless 
there  is  a  delivery,  or  the  buyer  "give  something 
in  earnest  to  bind  the  bargain,  or  in  part  payment." 

The  Roman  law  included  two  kinds  of  earnest, 
one  being  a  contract  prior  to  that  of  sale  and  in- 
dependent of  it,  which  was  practically  the  payment 
of  a  sum  of  money  for  what  we  should  now  call  an 


EARNEST 


9G5 


EAR:. 


option  to  purchase,  to  be  forfeited  by  the  purchaser 
if  he  did  not  buy,  while,  if  the  other  party  was  un- 
willing to  sell,  he  must  return  the  earnest  aril  pay 
an  equal  amount  as  a  forfeit.  The  other  kind  of 
earnest  was  that  afterwards  found  in  the  common 
law  and  might  be  a  thing,  usually  a  ring,  which 
either  party,  generally  the  buyer,  gave  to  the  other 
as  a  token.  It  is  important  in  reading  the  civil 
law  on  this  topic  to  bear  in  mind  these  two  classes. 
Benj.  Sales  §  10o.  Justinian  changed  the  law  on  this 
subject  by  providing  that  either  party  might  re- 
scind the  sale  by  forfeiting  the  amount  of  the  ear- 
nest money ;  Inst.  1.  3.  23.  1.  At  least  the  text 
appears  to  be  susceptible  of  no  other  meaning,  but 
Pothier  maintains  that,  after  earnest,  neither  party 
could  avoid  the  obligation  ;  In  this  he  is  not  fol- 
lowed by  the  later  civilians.  The  same  controversy 
has  arisen  upon  a  similar  provision  of  the  French 
code.  The  conclusion  above  stated  is  that  of  Ben- 
jamin,  who  cites  the  authorities;    Sales,   §§  198-200. 

In  Scotland  the  word  arles  is  used  for  earnest, 
and  is  usually  applied  to  a  small  sum  given  to  a 
servant  on  hiring,  as  earnest  that  the  wage  will  be 
paid. 

The  word  earnest  "has  been  supposed  to  flow 
from  a  Phoenician  source,  through  the  appa(3o)v  of  the 
Greeks,  the  arra  or  arrha  of  the  Latin,  and  the 
arrhes  of  the  French.  .  .  .  The  general  rule  ap- 
pears to  have  been  that  expressed  in  the  Institutes 
III.  23:  'Is  qui  recusat  adimplere  contractum,  si 
quidem  est  emptor,  perdit  quod  dedit :  si  vero  ven- 
ditor, duplum  restituere  compeUitur,  licet  super  ar- 
ris nihil  expressum  est.'  Furthermore,  the  earnest 
did  not  lose  that  character,  because  the  same  thing 
might  also  avail  as  part  payment:  'Datur  autem 
arrha  vel  simpliciter  (says  Vinnius,  on  Inst.  III.  24) 
ut  sit  argumentum  duntaxat  et  prooatio  emptionis 
contractce,  veluti  si  annulus  dctur ;  vcl  ut  simul 
postea  cedat  in  partem  pretii,  data  certa  pecunia.' 
From  the  Roman  law  the  principles  relating  to  the 
earnest  appear  to  have  passed  to  the  earlier  juris- 
prudence of  England:  'Item  cum  arrarum  nomine 
(says  Bracton  ii.  27)  aliquid  datum  fuerit  ante  tra- 
ditionem,  si  emptorem  emptionis  paznituerit,  et  a 
contractu  resilire  voluerit,  perdat  quod  dedit:  si 
autem  venditorem,  quod  arrarum  nomine  reccperit, 
emptori  restituat  duplicatum.'  Though  the  liability 
of  the  vendor  to  return  to  the  purchaser  twice  the 
amount  of  the  deposit  has  long  since  departed  from 
our  law,  the  passage  in  question  seems  an  authority 
for  the  proposition  that  the  earnest  is  lost  by  the 
party  who  fails  to  perform  the  contract.  That  ear- 
nest and  part  payment  are  two  distinct  things  is 
apparent  from  the  17th  section  of  the  statute  of 
frauds,  where  they  are  treated  as  separate  acts, 
each  of  which  is  sufficient  to  give  validity  to  a  parol 
contract."    Fry,  L.  J.,  in  53  L.  J.  Ch.  1055,  10G1. 

Kent  says  it  is  only  one  mode  of  binding 
trie  bargain,  and  giving  tbe  buyer  a  right  to 
the  goods  on  payment ;  2  Com.  49o ;  it  is  a 
token  or  pledge  passing  between  the  parties 
by  way  of  evidence  or  ratification  of  the 
sale.  .  .  .  It  is  mentioned  in  the  statute 
of  frauds,  and  in  the  French  code,  as  an  effi- 
cient act;  but  it  has  fallen  into  very  general 
disuse  in  modern  times,  and  seems  rather 
to  be  suited  to  the  manners  of  simple  and 
unlettered  ages,  before  the  introduction  of 
writing,  than  to  the  more  precise  and  accu- 
rate habits  of  dealing  at  the  present  day. 
It  was  omitted  in  the  New  York  Revised 
Statutes;  id.  (14th  ed.)  495,  n.  (h).  That  it 
has  fallen  into  disuse  is  true  as  to  the  giving 
of  earnest  in  its  ancient,  strict,  and  techni- 
cal sense,  and  its  having  fallen  into  disuse 
has  been  attributed  the  tendency  to  treat 
earnest  and  part  payment  as  meaning  the 
same  thing,  though  the  language  of  the  stat- 


ute of  frauds  implies  that  the  former  is 
something  to  land  the  bargain  while  no  part 
payment  can  be  made  until  the  contract  has 
been  closed  ;  Benj.  Sabs  §  I  - 

One  definition  is:  "Specifically,  in  law, 
a  part  of  the  price  of  goods  or  service  bar- 
gained for,  which  is  paid  at  the  time  of  the 
bargain  to  evidence  the  fact  that  the  i 
ation  has  ended  in  an  actual  contract 
Hence  it  is  said  to  bind  the  bargain."  Cent 
Diet.  And  another  is:  "Something  given  by 
a  buyer  to  a  seller  by  way  of  token  or  ; 
to  bind  the  bargain;  a  part  or  port! 
goods  delivered  into  the  possession  of  the 
buyer  at  the  time  of  the  sale  as  a  pledge  or 
security  for  the  complete  fulfilment  of  the 
contract ;  a  handsel."  Encyc.  Diet.  And  the 
latter  authority  illustrates  the  function  of 
earnest  as  evidence  of  the  conclusion  of  the 
contract  by  tbe  Scotch  law  which  holds  a 
party  who  resiles,  to  fulfil  the  contract  as 
well  as  to  forfeit  the  earnest  paid. 

It  is  sometimes  said  that  the  question 
wmether  the  earnest  shall  count  as  part  of 
the  price  or  wage  depends  on  the  intention 
of  the  parties,  which,  in  the  absence  of  di- 
rect evidence,  will  be  inferred  from  the  pro- 
portion which  it  bears  to  the  whole  sum. 
Int.  Cyc.  "If  a  shilling  be  given  in  the  pur- 
chase of  a  ship  or  of  a  box  of  diamonds,  it 
is  presumed  to  be  given  merely  in  evidence 
of  the  bargain,  or,  in  the  common  way  of 
speaking,  is  dead  earnest;  but  if  the  sum 
be  more  considerable  it  is  reckoned  up  in  the 
price."     Ersk.  Inst.  b.  iii.  tit.  iii.  §  5. 

Another  writer  considers  "that  the  origi- 
nal view  of  earnest  in  England  was,  that  it 
was  a  payment  of  a  small  portion  of  the 
price  or  wage,  in  token  of  the  conclusion  of 
the  contract;  and  as  this  view  seems  to  have 
been  adhered  to,  the  sum,  however  small. 
would  probably  then  be  counted  as  a  part 
payment."     Sto.  Sales  216. 

It  has  been  a  mooted  question  whether  at 
common  law  either  earnest  or  delivery  was 
necessary  to  perfect  a  sale  of  chattels ;  in  a 
case  where  it  was  objected  that  b< 
there  was  neither,  there  could  not  be  a  re- 
covery for  the  breach  of  a  parol  contract  of 
sale,  it  was  said :  Earnest  paid  is  not  i 
sary  to  complete  a  parol  contract  of  sale; 
when  made,  it  only  prevents  the  vendor,  un- 
der any  circumstances,  from  rescinding  the 
contract  without  the  assent  of  the  vendee: 
and  this  by  common  law,  and  not  by  any 
statute;  Hurlburt  v.  Simpson.  25  N.  I 

It  has  been  much  discussed  whether  the 
giving  of  earnest  has  any  effect  to  pas>  the 
title  to  the  property  Bold;  and  in  earlier 
cases  of  the  sale  of  specific  chattels  it  was 
so  held;  Shep.  Touchst.  221:  5  Term  409;  7 
East  558;  Nov.  Max.  87-89;  2  Bla.  Com.  447; 
but  see  the  analysis  of  these  authorities; 
Benj.  Sales  !•  355.  It  is  said  by  this  learned 
writer  on  the  subject,  that  there  is  no  case 
in  which  this  has  been  held  when  a  complet- 


EARNEST 


9GG 


EARNEST 


ed  bargain,  if  in  writing,  would  not  have 
altered  the  property ;  id.  §  357 ;  and  it  is  con- 
cluded that  the  true  legal  effect  of  earnest 
is  simply  to  afford  conclusive  evidence  of  a 
bargain  actually  completed  with  the  mutual 
intention  that  it  should  be  binding  on  both ; 
and  whether  the  property  has  passed  in  such 
cases  is  to  be  tested,  not  by  the  fact  that 
earnest  was  given,  but  by  the  true  nature  of 
the  contract  concluded  by  the  giving  of  earn- 
est ;  id.  Hence  with  respect  to  the  remedy 
of  the  seller,  if  the  buyer  refuse  to  take  the 
property  sold,  the  law  of  earnest,  properly 
speaking,  is  not  concerned ;  but  it  is  to  be 
treated  as  in  the  case  of  contracts  otherwise 
legally  evidenced.  See  2  Kent,  Com.  Lacey's 
ed.  496,  note  51 ;  Sales. 

To  constitute  earnest  to  bind  the  bargain 
something  must  be  paid  or  given.  An  in- 
stance is  reported  where,  the  buyer  having 
drawn  a  shilling  across  the  palm  of  the  seller 
and  returned  it  to  his  own  pocket,  according 
to  a  custom  alleged  to  exist  in  the  north  of 
England,  it  was  held  that  the  statute  was 
not  satisfied ;  7  Taunt.  597.  This  has  been 
said  to  be  the  only  reported  case ;  Benj.  Sales 
§  191 ;  but  it  has  been  held  that  money  left 
in  the  hands  of  a  third  person  as  a  forfei- 
ture is  not  sufficient ;  Howe  v.  Hay  ward,  108 
Mass.  54,  11  Am.  Rep.  306;  much  less  a  de- 
posit of  a  check ;  Jennings  v.  Dunham,  60 
Mo.  App.  635;  Noakes  v.  Morey,  30  Ind.  103. 
The  three  cases  last  cited  are  usually  refer- 
red to  in  connection  with  the  subject  of 
earnest.  In  the  Massachusetts  case,  the 
question  was  as  to  the  recovery  of  money  de- 
posited as  a  forfeiture,  which  it  was  argued 
was  earnest  to  bind  the  bargain  in  case  of  a 
refusal  to  take  the  goods,  and  the  court  said 
that  earnest,  as  used  in  the  statute  of  frauds, 
was  part  payment.  On  the  strength  of  this 
case  a  text-writer  on  the  law  of  that  state 
adopts  the  statement  as  a  definition  of  earn- 
est; Usher,  Sales  Per.  Prop.  §  113.  So  an 
authoritative  writer  on  the  statute  of  frauds 
uses  the  terms,  earnest  and  part  payment, 
as  interchangeable,  and  discusses  the  ques- 
tion of  when  earnest  must  be  paid  mainly 
upon  New  York  cases,  although  in  that  state 
the  exception  is  confined  to  part  payment, 
the  "giving  something  in  earnest"  being 
omitted ;  Reed,  Stat.  Fr.  §  226.  While,  there- 
fore, the  clear  and  philosophical  definitions 
of  the  nature  and  effect  of  earnest  cited 
from  Benjamin  on  Sales  unquestionably  com- 
mend themselves  as  better  satisfying  the  ap- 
parent purpose  of  the  statute  to  designate 
two  distinct  acts,  it  must  be  admitted  that 
they  are  constantly  referred  to  by  American 
courts  and  writers  as  alternative  expressions 
of  the  same  thing.  Consequently  the  cases 
cited  in  text-books  as  laying  down  rules  as 
to  earnest  are  usually  found,  on  examination, 
to  be  in  fact  cases  of  part  payment,  and 
they  must  be  so  read.  This  use  of  the  words, 
interchangeably,  makes  unavoidable  a  refer- 
ence to  the  cases  just  referred  to,  especially 


since  the  word  earnest,  in  addition  to  what 
has  been  indicated  as  its  real  signification, 
has,  in  this  country,  certainly,  an  acquired 
meaning  too  general  to  be  disregarded. 

In  part  payment  something  having  value 
must  pass  from  the  buyer  to  the  seller; 
16  M.  &  W.  302;  Brand  v.  Brand,  49  Barb. 
(N.  Y.)  348;  an  unaccepted  tender  to  the 
vendor  on  a  call  for  part  payment  by  him 
will  not  suffice  to  bind  him,  as  when  a  re- 
mittance by  mail  of  a  check  was  returned  to 
the  sender;  Edgerton  v.  Hodge,  41  Vt.  676; 
nor  the  promissory  note  of  the  buyer ;  Combs 
v.  Bateman,  10  Barb.  (N.  Y.)  573;  Hooker 
v.  Knab,  20  Wis.  511;  Krohn  v.  Bantz,  68 
Ind.  278 ;  even  if  there  were  an  express 
agreement  that  the  note  should  be  received 
as  part  payment,  which  in  this  instance 
there  was  not;  id.;  in  this  case  it  was  held 
that  the  note  was  not  only  ineffectual  as 
part  payment,  but  that  it  could  not  be  re- 
garded as  earnest,  sufficient  to  bind  the  bar- 
gain. After  referring  to  the  Massachusetts 
decision,  supra,  that,  as  used  in  the  statute 
of  frauds,  earnest  was  regarded  as  part  pay- 
ment of  the  price,  the  court  said :  "But, 
conceding  that  it  may  be  something  distinct 
from  payment,  it  is  quite  clear  that  it  must 
have  some  value.  The  note  has  no  value 
whatever,  because  it  had  no  consideration 
to  support  it,  and  its  payment  could  not, 
therefore,  have  been  enforced.  To  say  that 
such  a  note  has  value,  is  but  grasping  at  a 
shadow,  and  losing  sight  of  the  substance. 
The  contract  for  the  sale  of  the  hogs  not 
being  valid,  the  note  given  in  consideration 
of  the  agreement  therefor  was  based  upon 
no  valid  consideration;"  id.;  Ely  v.  Ormsby, 
12  Barb.  (N.  Y.)  570.  But  see  13  M.  &  W. 
58;  Byles,  Bills  *3S6.  But  when  the  con- 
tract was  partly  performed  by  compliance 
with  a  condition,  and  a  note  was  tendered 
for  the  price,  it  was  considered  that  the 
statute  was  satisfied;  Gray  v.  Payne,  16 
Barb.  (N.  Y.)  277.  A  note  of  a  third  person 
accepted  as  payment  is  sufficient;  Combs  v. 
Bateman,  10  Barb.  (N.  Y.)  573;  or  a  check 
if  paid  is  a  payment  relating  back  to  the 
time  when  given ;  Hunter  v.  Wetsell,  17  Hun 
(N.  Y.)  135;  a  stipulation  that  borrowed 
money  owing  from  the  seller  to  the  buyer 
shall  be  treated  as  part  payment  will  avail ; 
Mattice  v.  Allen,  33  Barb.  (N.  Y.)  543;  but 
not  an  agreement  to  credit  an  account  due 
from  the  seller  and  send  goods  for  the  bal- 
ance; Galbraith  v.  Holmes,  15  Ind.  App. 
34,  43  N.  E.  575 ;  or  a  promise  to  pay  a  part 
of  the  purchase  money  to  a  creditor  of  the 
vendor  or  credit  it  in  the  account  against 
him;  Artcher  v.  Zeh,  5  Hill  (N.  Y.)  204; 
but  if  such  debt  be  actually  paid  it  is  good ; 
2j.  U.  C.  Q.  B.  340 ;  or  if  accepting  the  prom- 
ise the  creditor  discharge  the  vendor ;  Cot- 
terill  v.  Stevens,  10  Wis.  425 ;  but  the  pay- 
ment must  be  made  at  the  time  of  the  agree- 
ment; Paine  v.  Fulton,  34  Wis.  83;  and  if 
there   was  no  entry   in  the  account  stating 


EARNEST 


967 


EARNINGS 


that  the  credit  was  given  on  account  of  the 
transactions  in  suit  it  was  insufficient ;  Teed 
v.  Teed,  44  Barb.  (N.  Y.)  9G.  A  mere  agree- 
ment that  the  price  shall  go  in  settlement 
of  an  existing  account  is  not  sufficient  with- 
out more;  Brabln  v.  Hyde,  30  Barb.  (N.  I.) 
265 ;  1G  M.  &  W.  302 ;  1G  L.  J.  Ex.  120 ;  nor 
is  an  agreement  to  sell  one  article  and  take 
another  in  part  payment;  Chapin  v.  Potter, 
1  Hilt.  (N.  Y.)  3GG.  Part  payment  may  be 
by  the  actual  delivery  of  anything  of  value. 
as  a  chattel;  Dow  v.  Worthen,  37  Vt.  108; 
but  a  delivery  of  goods  must  be  sufficient 
within  the  statute  of  frauds  if  they  were  In 
litigation;  Walrath  v.  Ingles,  04  Barb.  (N. 
Y.)  27.",. 

With  respect  to  the  time  at  which  part 
payment  must  be  made,  it  is  in  some  states 
required  to  be  at  the  time  of  making  the 
contract;  Crosby  Hardwood  Co.  v.  Tester, 
90  Wis.  412,  G3  N.  W.  1057.  It  was  so  held 
in  New  York  ;  Sprague  v.  Blake,  20  Wend. 
(N.  Y.)  G3;  though  in  a  later  case  the  ques- 
tion was  raised  and  not  determined;  Haw- 
ley  v.  Keeler,  53  N.  Y.  119;  the  same  day  is 
sufficient;  Brabin  v.  Hyde,  30  Barb.  (N.  Y.) 
2G5;  and  so  was  a  payment  asked  and  re- 
ceived on  the  following  day,  the  contract  be- 
ing held  to  be  then  made  for  the  first  time; 
Bissell  v.  Balcom,  39  N.  Y.  2S1.  And  when 
a  check  is  given  and  paid  upon  presentation 
it  is  a  payment  at  the  time ;  Hunter  v.  Wet- 
sell,  S4  N.  Y.  549,  3S  Am.  Rep.  544 ;  so  also  a 
check  upon  a  deposit  in  bank ;  McLure  v. 
Sherman,  70  Fed.  190.  In  some  cases  it  has 
been  held  that  payment  is  not  so  restricted ; 
7  U.  C.  C.  P.  133;  Thompson  v.  Alger,  12 
Mete.  (Mass.)  435;  Davis  v.  Moore,  13  Me. 
424;  Gault  v.  Brown,  4S  N.  H.  1S9,  2  Am. 
Rep.  210.  It  is  to  be  observed  that  this  ques- 
tion of  time  arises  with  more  frequency  un- 
der the  New  York  statute  which  does  not 
provide  for  earnest  eo  nomine,  but  only  for 
part  payment  "at  the  time,"  as  does  also  the 
Wisconsin  statute. 

See  Benjamin;  Blackburn;  Story.  Sales; 
Browne;  Reed,  Statute  of  Frauds;  Frauds, 
Statute  of  ;   Sales  ;   God's  Penny. 

EARNINGS.  The  word  has  been  used  to 
denote  a  larger  class  of  credits  than  would 
be  included  in  the  term  wages.  Jenks  v. 
Dyer,  102  Mass.  235;  Somers  v.  Keliher,  115 
Mass.  1G5.  See  Jason  v.  Antone,  131  Mass. 
534.  It  also  means  gains  derived  from  serv- 
ices or  labor  without  the  aid  of  capital. 
Brown  v.  Hebard,  20  Wis.  330,  91  Am.  Dec. 
408. 

Surplus  earnings  is  an  amount  owned  by 
a  company,  over  and  above  the  capital  and 
actual  liabilities.  People  v.  Board  of  Com'rs, 
76  N.  Y.  74. 

Net  earnings,  generally  speaking,  are  the 
excess  of  the  gross  earnings  over  the  ex- 
penditures defrayed  in  producing  them,  aside 
from,  and  exclusive  of,  the  expenditure  of 
capital   laid  out  in  constructing  and   equip- 


ping the  works  themselves.     Enion   Pac.   R. 
Co.  v.  U.  8.,  99  I".  S.  420,  25  I..  Ed,  274. 

They  include   "tips";    [1908]    1   K.   B 
See  Dividends. 

EARTH.     Clay,  gravel,  loam  and  the  like, 
in  distinction  from  the  firm  rock.    The  term 
also  Includes  hard  pan,  which  is  a  bar'! 
turn  of  earth.     Dickinson  v.  City  of  Pough- 
kecpsie,  75  N.  Y.  70. 

EASEMENT.  A  right  in  the  owner  of  one 
parcel  of  land,  by  reason  of  such  ownership, 
P>  use  the  laud  of  another  for  a  special  pur- 
pose ii"t  Inconsistent  with  a  general  proper- 
ty in  the  owner.  2  Washb.  R.  P.  25;  Clark 
v.  Glidden,  GO  Yt.  702,  ir,  Atl.  358. 

A  privilege  which  the  owner  of  one  ad- 
jacent tenement  hath  of  another,  existing  in 
respect  of  their  several  tenements,  by  which 
that  owner  against  whose  tenement  the  priv- 
ilege exists  is  obliged  to  suffer  or  not  to  do 
something  on  or  in  regard  to  his  own  land 
for  the  advantage  of  him  in  whose  land  the 
privilege  exists.  Termes  de  la  Leu,  Ease- 
ments; Downing  v.  Baldwin,  1  S.  &  B.  (Pa.) 
298;  3  B.  &  C.  339;  Lawton  v.  Rivers.  2 
M'Cord  (S.  C.)  451.  1.",  Am.  Dec.  741;  Com. 
v.  Low,  3  Pick.  (Mass.)  ^<»S;  Forbes  v.  Bal 
enseifer,  74  111.  183;  Oliver  v.  Hook,  17  Md. 
301;  Strong  v.  Wales.  50  Yt.  361  ;  Howell  v. 
Estes,  71  Tex.  GOO,  12  S.  W.  62;  Koenigs  v. 
Jung.  73  Wis.  178,  40  N.  W.  801. 

Although  the  terms  are  sometimes  used  as 
if  convertible,  properly  speaking  easement 
refers  to  the  right  enjoyed  by  one  and  servi- 
tude the  burden  imposed  upon  the  other. 

An  interest  in  land  created  by  grant  or 
agreement,  express  or  implied,  which  con- 
fers a  right  upon  the  owner  thereof  to  some 
profit,  benefit,  dominion,  or  lawful  use  out 
of  or  over  the  estate  of  another.  Huyck  v. 
Andrews,  113  N.  Y.  SI,  20  N.  E.  581,  3  L.  R. 
A.  7S9,  10  Am.  St.  Rep.  432. 

In  the  civil  law,  the  land  against  which  the  privi- 
lege exists  is  called  the  servient  tenement :  its  pro- 
prietor, the  servient  owner;  he  in  whose  favor  it 
exists,  the  dominant  owner  ;  his  land,  the  dominant 
tenement.  And,  as  these  rights  are  not  personal 
and  do  not  change  with  the  persons  who  may  own 
the  respective  estates,  it  is  very  common  to  per- 
sonify the  estates  as  themselves  owning  or  enjoying 
the  easements;  Wolfe  v.  Frost,  4  Sandf.  Ch.  (X. 
Y.)  72;  Hills  v.  Miller,  3  Paige,  Ch.  (N.  Y.)  254,  24 
Am.  Dec.  21S  :  Boston  Water  Power  Co.  v.  R.  Co., 
16  Pick.   (Mass.)   522. 

There  are  said  to  be  in  England  five  differ- 
ent classes  of  rights  which  one  man  may 
have  over  the  land  of  another:  Easements, 
profits  ;1  prendre,  personal  licenses,  custom- 
ary rights,  and  natural  rights.  Odgers  C.  L. 
5G1.  This  classification  is  apparently  ob- 
served in  the  English  cases.  Of  these  sub- 
divisions, profits  ;1  prendre  and  licenses  are 
treated  under  these  titles.  "Customary 
rights"  are  referred  to  below.  They  are 
more  common  in  England  than  here.  "Nat- 
ural rights"  do  not  depend  upon  grant  or 
prescription,  but  are  really  incident  to  prop- 
erty in  land.     Such  are  the  right  of  lateral 


EASEMENT 


968 


EASEMENT 


support  to  land  by  adjacent  land,  the  right 
to  the  flow  of  water,  and  the  right  to  air  free 
from  noxious  smells.  These  rights,  of  course, 
exist  without  grant.  See  Lateral  Support  ; 
Riparian  Proprietors  ;    Nuisance. 

These  distinctions  have  not  always  been 
fully  observed  in  the  cases  here.  The  dis- 
tinction between  an  ordinary  easement  and 
an  easement  in  gross  is  tbat  in  the  former 
there  is  and  in  the  latter  there  is  not  a  domi- 
nant tenement ;  Jones,  Easements  25.  Lord 
Cairns,  L.  J.,  said  in  Rangeley  v.  Midland  R. 
Co.,  L.  R.  3  Ch.  311,  that  there  is  no  such 
thing  in  the  civil  law  or  in  England  as  an 
easement  in  gross — an  easement  not  connect- 
ed with  a  dominant  tenement.  Mr.  Jones 
(Easements  25)  states  that  he  uses  the  term 
"easement  in  gross"  because  it  is  in  general 
use  here  by  legal  writers,  judges  and  the 
profession,  and  it  is  useless  to  attempt  to  es- 
tablish a  refinement  of  definition  intended  to 
do  away  with  it. 

On  the  other  hand,  Sharswood,  C.  J.,  said : 
"That  there  may  be  the  grant  of  an  easement 
in  gross  personal  to  the  grantee  is  not  to  be 
denied."  Tinicum  Fishing  Co.  v.  Carter,  61 
Pa.  21,  38,  100  Am.  Dec.  597.  To  the  same 
effect  are  3  Kent  420;  Washb.  Easem.  8; 
Fisher  v.  Fair,  34  S.  C.  203,  13  S.  E.  470,  14 
L.  R.  A.  333,  with  note  citing  other  cases,  in 
which  the  statement  that  "there  is  no  such 
thing  known  to  the  law"  as  an  easement  in 
gross  is  characterized  as  a  "refinement  at- 
tempted to  be  established"  by  Gale  (Easem. 
5)  and  Goddard  (Easem.  6). 

The  essential  qualities  of  easements,  properly  so 
called,  may  be  thus  distinguished:  1.  Easements 
are  incorporeal.  2.  They  are  imposed  upon  cor- 
poreal property.  3.  They  confer  no  right  to  a  par- 
ticipation in  the  profits  arising  from  it.  4.  They 
must  be  imposed  for  the  benefit  of  corporeal  or 
incorporeal  hereditaments,  and  are  usually  imposed 
for  the  benefit  of  corporeal.  5.  There  must  be  two 
distinct  tenements— the  dominant,  to  which  the  right 
belongs  ;  and  the  servient,  upon  which  the  obliga- 
tion is  imposed.  6.  By  the  civil  law  it  is  also  re- 
quired that  the  cause  must  be  perpetual.  Gale, 
Easem.   (Sth  ed.)  8. 

Easements  in  gross  are  personal,  are  not 
assignable,  and  will  not  pass  by  a  deed  of 
conveyance ;  Washb.  Easem.  12 ;  Tinicum 
Fishing:  Co.  v.  Carter,  Gl  Pa.  38,  100  Am.  Dec. 
597;  Kuecken  v.  Voltz,  110  111.  2(58.  See 
14  L.  R.  A.  333,  n.  They  are  not  inheritable ; 
Wagner  v.  Hanna,  38  Cal.  Ill,  99  Am.  Dec. 
351 ;  Hall  v.  Armstrong,  53  Conn.  554,  4  Atl. 
113;  but  in  Hankey  v.  Clark,  110  Mass.  202 ; 
Poull  v.  Mockley,  33  Wis.  4S2 ;  Lonsdale  Co. 
v.  Moies,  21  Law  Rep.  658,  they  are  held  to 
be  assignable  and  inheritable.  A  way  is 
never  presumed  to  be  in  gross  when  it  can 
be  construed  to  be  appurtenant  to  the  land; 
French  v.  Williams,  82  Va.  4G2,  4  S.  E.  591; 
Cadwalader  v.  Bailey,  17  R.  I.  495,  23  Atl. 
20,  14  L.  R.  A.  300. 

Easements  are  also  classified  as  contin- 
uous and  discontinuous,  the  distinction  be- 
tween them  being  thus  stated:  "Continuous 
are  those  of  which  the  enjoyment  is,  or  may 


be,  continual,  without  the  necessity  of  any 
actual  interference  by  man.  Discontinuous 
are  those,  the  enjoyment  of  which  can  be 
had  only  by  the  interference  of  man,  as 
rights  of  way,  or  a  right  to  draw  water." 
Lampman  v.  Milks,  21  N.  Y.  505.  Of  the 
former  the  right  to  light  and  air  would  be 
an  example,  of  the  latter,  the  right  to  use  a 
pump;  Chase's  Bla.  Com.  232,  note,  which 
see  as  to  Easements  generally. 

There  must  be  two  tenements  owned  by 
distinct  proprietors :  the  dominant,  to  which 
the  privilege  is  attached ;  the  servient,  upon 
which  it  is  imposed.  Tudor,  Lead.  Cas.  108; 
Grant  v.  Chase,  17  Mass.  443,  9  Am.  Dec.  161 ; 
Meek  v.  Breckenridge,  29  Ohio  St.  042. 

Easements  confer  no  right  to  any  profits 
arising  from  the  servient  tenement;  Waters 
v.  Lilley,  4  Pick.  (Mass.)  145,  16  Am.  Dec. 
333;  30  E.  L.  &  Eq.  189;  Pierce  v.  Keator, 
70  N.  Y.  419,  26  Am.  Rep.  612.  They  are  in- 
corporeal. Like  other  incorporeal  heredita- 
ments they  have  been  held  not  to  pass  with- 
out a  grant ;  3  Kent  434;  Orleans  Nav.  Co. 
v.  New  Orleans,  2  Mart.  La.  (O.  S.)  214. 
They  are  specifically  distinguished  from  oth- 
er incorporeal  hereditaments  by  the  absence 
of  all  right  to  participate  in  the  profits  of 
the  soil  charged  with  them ;  Gale,  Easem. 
(Sth  ed.)   10. 

By  the  common  law,  they  may  be  tem- 
porary; by  the  civil  law,  the  cause  must  be 
perpgtual.  They  impose  no  duty  on  the 
servient  owner,  except  not  to  change  his 
tenement  to  the  prejudice  or  destruction  of 
the  privilege;  Gale,  Easem.  (Sth  ed.)  9; 
Washb.  Easem.  5. 

Easements  are  as  various  as  the  exigencies 
of  domestic  convenience  or  the  purposes  to 
which  buildings  and  lands  may  be  applied. 
The  following  attach  to  land  as  incidents  or 
appurtenances,  viz. :     The  right — 

Of  pasture  on  other  land ;  of  fishing  in 
other  waters ;  of  taking  game  on  other  land ; 
of  way  over  other  land ;  of  receiving  air, 
light,  or  heat  from  or  over  other  land ;  of 
receiving  or  discharging  water  over,  or  hav- 
ing support  to  buildings  from,  other  land ;  3 
E.,  B.  &  E.  655;  of  a  right  to  take  ice  on  a 
pond ;  Hoag  v.  Place,  93  Mich.  450,  53  N.  W. 
017,  18  L.  R.  A.  39 ;  of  going  on  other  land  to 
clear  a  mill-stream,  or  repair  its  banks,  or 
draw  water  from  a  spring  there,  or  to  do 
some  other  act  not  involving  ownership;  of 
carrying  on  an  offensive  trade;  2  Bingh.  N. 
C.  134;  Dana  v.  Valentine,  5  Mete.  (M;iss.) 
8 ;  of  burying  in  a  church,  or  a  particular 
vault ;  8  H.  L.  Cas.  362 ;  11  Q.  B.  666 ;  Long 
v.  Weller's  Ex'or.,  29  Gratt.  (Va.)  347;  Can- 
ny v.  Andrews,  123  Mass.  155;  Central 
Wharf  &  Wet  Dock  Corp.  v.  India  Wharf,  123 
Mass.  562;  Onthank  v.  R.  Co.,  71  N.  Y.  194, 
27  Am.  Rep.  35.     See  Cemetery. 

The  right  to  maintain  a  building  or  other 
permanent  structure  upon  the  land  of  an- 
other cannot  be  acquired  by  custom;    Attor- 


EASEMENT 


969 


EASEM 1  .NT 


ney  General  v.  Tarr,  148  Mass.  309,  19  N.  E. 
358,  2  L.  R.  A.  87. 

Open  visible  ditches;  Thayer  v.  Payne,  2 
Cush.  (Mass.  t  327;  McElroy  v.  McSeay,  71 
Vt.  39G,  45  Atl.  898;  Stuyvesant  v.  Early,  58 
App.  Div.  242,  68  N.  V.  Supp.  752;  Sander- 
lin  v.  Baxter,  76  Va.  299,  -i  I  Am.  Elep.  165; 
Qulnlan  v.  Noble,  75  Cal.  250,  IT  Pac.  69;  a 
furnace  Hue;  Ingals  v.  Plamondon,  75  111. 
118;  an  alley  way;  Cihalc  v.  Klekr,  117  111. 
643,  7  N.  E.  ill;  Bums  v.  Gallagher,  62 
Md.  4<;'J;  a  water  ditch  and  water  rights; 
v.  Crafts,  53  Cal.  135;  rights  of  way; 
Ellis  v.  Bassett,   128  Ind.  118,  27  N.  EL  344, 

25  Am.  St.  Rep.  421:  McTavish  v.  Carroll, 
7  Md.  352,  t'.l  Am.  Dec.  353;  stairways  in  a 
building;  Calloway  v.  lionesteel,  05  Wis.  79, 

26  N.  W.  262,  56  Am.  Rep.  616;  Geible  v. 
Smith,  140  Pa.  270,  23  All.  437,  28  Am.  St 
Hep.  790;  a  flow  of  water  forced  from  the 
vendor's  premises  through  pipes  to  the  prem- 
ises of  the  vendee;  Toothe  v.  Bryce,  50  N. 
J.  Eq.  589,  25  Atl.  182 ;  a  portion  of  a  build- 
ing projecting  upon  the  land  retained  by  the 
vendor;  N.  Y.  C.  &  H.  R.  R.  Co.  v.  Need- 
ham,  29  Misc.  435,  01  N.  Y.  Supp.  992 ;  have 
all  been  held  the  subject  of  implied  ease- 
ments. Rights  to  a  several  fishery  in  the 
adjoining  sea  enjoyed  by  grantees  of  land 
and  their  predecessors  in  title  from  time  im- 
memorial were  held  to  pass  under  a  royal 
patent,  though  the  habendum  clause  recited 
that  they  were  to  have  and  to  hold  "the 
above  granted  land,"  which  standing  alone 
might  not  include  a  fishing  right;  Damon  v. 
Hawaii,  194  U.  S.  158,  24  Sup.  Ct.  017,  48 
L.  Ed.  910,  reversing  14  Hawaiian  Rep.  405. 
The  fact  that  the  particular  method  of  ex- 
ercising this  alleged  right,  while  prevailing 
in  Hawaii,  differed  from  those  known  to 
the  common  law,  was  held  to  make  no  differ- 
ence; Carter  v.  Hawaii.  200  U.  S.  255,  20 
Sup.  Ct.  248,  50  L.  Ed.  470. 

A  covenant  to  erect  and  maintain  a  fence 
on  a  railroad,  contained  in  a  grant  of  a  right 
of  way,  was  held  to  run  with  the  land,  be- 
cause the  covenant  gave  to  the  grantee  an 
interest  in  the  nature  of  an  easement  in  the 
adjoining  land  of  the  grantor ;  Bronson  v. 
Coffin,  108  Mass.  175,  11  Am.  Rep.  335;  cited 
in  Joy  v.  St.  Louis,  138  U.  S.  1,  11  Sup.  Ct. 
243,  34  L.  Ed.  843.  An  easement  may  be  cre- 
ated by  way  of  exception  or  reservation; 
Claflin  v.  R.  Co.,  157  Mass.  489,  32  N.  E.  659, 
20  L.  R.  A.  038;  and  rights  in  the  nature  of 
an  easement  may  be  created  by  statute;  At- 
torney General  v.  Williams,  174  Mass.  470, 
55  N.  E.  77,  where  an  act  restricted  the 
height  of  buildings  bordering  on  a  public 
square  under  the  power  of  eminent  domain 
and  provided  compensation  to  the  abutting 
owners.  The  court  said  that  the  act  added 
to  the  public  park  rights  in  Light  and  air 
and  view  over  adjacent  land  which  were  "in 
the  nature  of  an  easement  created  by  the  \ 
statute  and  annexed  to  the  park."  It  was 
further  said  "it  would  be  hard  to  say  that 


this  statute  might  not  have  been  passed  in 
the  exercise  of  the  police  power,"  but  that, 
in  providing  compensation,  it  conformed  to 
an  exercise  of  the  right  of  eminent  domain. 
A  similar  right  secured  by  statute  is  that  of 
lateral   support 

An  easement  of  private  way  over  land 
must  have  a  particular,  definite  line:  (.'rosier 
v.  Brown,  66  W.  Va.  27::.  66  8.  B.  326,  25  L. 
R.  A.  (N.  S.i  174.  To  establish  an  easement 
of  a  private  way  by  prescription,  the  use 
must  be  continuous  and  uninterrupted  under 
a  bona  fide  claim  of  rifrht  adverse  to  the 
owner  of  the  land  and  with  his  knO1 
and  silence.  If  the  use  is  by  his  pern  I 
or  if  he  denies  the  right,  the  title  does  not 
accrue;  id.;  verbal  protests  against  the  use 
prevent  its  accruing;  Keid  v.  Garnett,  101 
Va.  47,  43  S.  E.  182;  but  it  is  held  that 
mere  verbal  denial  by  the  owner  does  not 
tend  to  prove  that  the  enjoyment  of  the  way 
was  interrupted  or  had  been  under  the  own 
er's  license;  Okeson  v.  Patterson,  29  Pa.  22. 
See  25  L.  R.  A.   (N.  S.)    174.  note. 

Mere  knowledge  by  a  railway  company 
that  the  public  and  an  adjoining  owner  are 
passing  over  its  right  of  way  will  not  create 
a  right  of  way,  especially  when  the  company 
erects  signs  notifying  the  public  that  it  is 
railroad  property ;  Andries  v.  Ry.  Co.,  105 
Mich.  557,  63  N.  W.  526. 

Forbidding  an  adjoining  owner  from  us- 
ing a  way  over  his  land  and  beginning  to 
put  up  a  fence  will  not  in  law  prevent  such 
adjoining  owner  from  acquiring  a  right  of 
way,  when  the  latter  with  threats  prevented 
the  erection  of  a  fence  and  the  owner  took 
no  proceedings  to  establish  his  rights;  Con- 
nor v.  Sullivan,  40  Conn.  26,  16  Am.  Kep.  10. 

Some  of  these  are  affirmative  or  positive. 
— i.  e.,  authorizing  the  commission  of  acts 
on  the  lands  of  another  actually  injurious 
to  it ;  as,  a  right  of  way, — or  negative,  be- 
ing only  consequentially  injurious;  as,  for- 
bidding the  owner  from  building  to  the  ob- 
struction of  light  to  the  dominant  tenement. 
Tudor,  Lead.   Cas.   107;   2  Washb.   R.  P.  26. 

All  easements  must  originate  in  a  grant 
or  agreement,  express  or  implied,  of  the 
owner  of  the  servient  tenement:  Huyck  v. 
Andrews,  113  N.  Y.  81,  2<>  X.  E.  581,  3  L.  R. 
A.  789,  10  Am.  St  Rep.  432.  The  evidence 
of  their  existence,  by  the  common  law,  may 
be  by  proof  of  the  agreement  Itself,  or  by 
prescription,  requiring  an  uninterrupted  en- 
joyment Immemorially,  or  for  upwards  of 
twenty  years,  to  the  extent  of  the  easement 
claimed,  from  which  a  grant  is  implied.  A 
negative  easement  does  not  admit  of  posses- 
sion: and.  bj  the  civil  law.  it  cannot  lie  ac- 
quired by  prescription,  and  can  only  be  prov- 
ed by  grant.  Use,  therefore.  Is  uot  essential 
to  its  existence;  Gale.  Easem.  2:\  Si,  128; 
2  Bla.  Com.  263.  An  easement  can  only  be 
created  by  a  conveyance  under  seal  or  by 
long  user,  from  which  such  conveyance  is 
presumed;  Cagle  v.  Parker,  97  X.  C.  271,   2 


EASEMENT 


970 


EASEMENT 


S.  E.  76;  see  Hammond  v.  Sehiff,  100  N.  C. 
161,  6  S.  E.  753;  or  by  necessity;  Butter- 
worth  v.  Crawford,  46  N.  Y.  349,  7  Am.  Rep. 
352;  Cihak  v.  Klekr,  117  111.  643,  7  N.  E.  Ill  ; 
and  the  burden  is  on  one  claiming  that  it 
was  by  virtue  of  a  license,  to  prove  that 
fact;  Colburn  v.  Marsh,  68  Hun  269,  22  N. 
Y.  Supp.  990.  As  to  the  creation  of  ease- 
ments by  deed,  see  8  L.  R.  A.  617,  note;  and 
by  implication,  see  O'Brien  v.  R.  Co.,  74  Md. 
363,  22  Atl.  141,  13  L.  R.  A.  126. 

Where  the  owner  of  a  tract  of  land  front- 
ing upon  a  public  highway  sells  a  portion 
thereof  which  is  entirely  surrounded  by  the 
land  of  the  grantor  and  of  strangers  with 
no  outlet,  except  over  the  lands  of  the  gran- 
tor, the  grantee  is  entitled  to  a  right  of  way 
over  the  grantor's  land,  unless  the  situation 
of  the  land  or  the  object  for  which  it  is  used 
and  conveyed  shows  that  no  grant  of  such 
right  was  intended ;  Mead  v.  Anderson,  40 
Kan.  203,  19  Pac.  708.  See  Kinney  v.  Hook- 
er, 65  Vt.  333,  26  Atl.  690,  36  Am.  St.  Rep. 
864. 

In  case  of  a  division  of  an  estate  consist- 
ing of  two  or  more  heritages,  the  question 
whether  an  easement  or  convenience,  which 
may  have  been  used  in  favor  of  one  in  or 
over  the  other  by  the  common  owner  of  both, 
shall  become  attached  to  the  one  or  charged 
upon  the  other  in  the  hands  of  separate  own- 
ers, by  a  grant  of  one  or  both  of  those  parts, 
or  upon  a  partition  thereof,  must  depend, 
where  there  are  no  words  limiting  or  defin- 
ing what  is  intended  to  be  embraced  in  the 
deed  or  partition,  upon  whether  the  ease- 
ment is  necessary  for  the  reasonable  enjoy- 
ment of  the  part  of  the  heritage  claimed  as 
an  appurtenance. 

The  scope  of  the  doctrine  of  implication 
of  an  easement  over  one  portion  of  a  gran- 
tor's lands  in  favor  of  the  other  portion,  ei- 
ther granted  or  reserved  upon  the  sale  of  ei- 
ther portion,  is  said  to  be  in  much  confu- 
sion in  the  United  States.  The  rule  in  Eng- 
land, as  quoted  and  adopted  in  perhaps  the 
most  cited  of  the  earlier  American  cases, 
Lampman  v.  Milks,  21  N.  Y.  505,  is,  in  ef- 
fect, that  where  the  owner  of  two  tenements 
sells  one  of  them,  the  purchaser  takes  the 
portion  sold,  with  all  the  benefits  and  bur- 
dens which  appear  at  the  time  of  the  sale 
to  belong  to  it,  as  between  it  and  the  prop- 
erty which  the  vendor  retains.  .  .  .  The 
parties  are  presumed  to  contract  in  reference 
to  the  condition  of  the  property  at  the  time 
of  the  sale,  and  neither  has  a  right,  by  alter- 
ing arrangements  then  openly  existing,  to 
change  materially  the  relative  value  of  the 
respective  parts.  The  rule  has  been  applied 
in  Dixon  v.  Schermeier,  110  Cal.  582,  42  Pac. 
1091 ;  Fremont,  E.  &  M.  V.  R.  Co.  v.  Gayton, 
07  Neb.  2G3,  93  N.  W.  163 ;  Janes  v.  Jenkins, 
34  Md.  1,  6  Am.  Rep.  300;  Cihak  v.  Klekr, 
117  111.  643,  7  N.  E.  Ill ;  Dunklee  v.  R.  Co., 
24  N.  H.  489 ;  Henry  v.  Koch,  SO  Ky.  391,  44 
Am.  Rep.  484;  Cannon  v.  Boyd,  73  Pa.  179; 


John  Hancock  Mut.  Life  Ins.  Co.  v.  Patter- 
son, 103  Ind.  582,  2  N.  E.  188,  53  Am.  Rep. 
550;  Lammott  v.  Ewers,  106  Ind.  310,  6  N. 
B.  636,  55  Am.  Rep.  746.  In  the  states  where 
the  rule  has  been  adopted  in  terms,  its  ap- 
plication has  been  quite  limited,  and  in  some 
of  them  an  early  tendency  to  liberality  has 
been  followed  by  a  later  strictness  of  limi- 
tation;  Griffiths  v.  Morrison,  106  N.  Y.  165, 
12  N.  E.  580;  Whyte  v.  Builders'  League  of 
New  York,  164  N.  Y.  429,  58  N.  E.  517 ;  Keats 
v.  Hugo,  115  Mass.  204,  15  Am.  Rep.  80. 

It  is  said  that  this  rule  has  its  reason  in 
intended  permanence  of  real  estate  arrange- 
ments supposed  to  be  in  the  minds  of  gran- 
tor and  grantee.  But,  whatever  may  be  true 
in  older  communities,  it  would  be  difficult 
to  find  justification  for  any  such  presump- 
tion in  a  new  and  developing  country,  and 
especially  in  cities.  There,  instead  of  per- 
manence, change  is  to  be  expected,  and  there 
can  be  but  a  slight  reason  to  suppose  that, 
upon  a  sale  of  that  part  of  an  entire  tract 
on  which  stands  a  house,  it  is  intended  per- 
manently to  subject  other  parts  of  the  tract 
to  such  obsolescent  uses,  although  the  own- 
er of  the  whole  had  so  devoted  them ;  Miller 
v.  Hoeschler,  126  Wis.  263,  105  N.  W.  790,  8 
L.  R.  A.  (N.  S.)  327,  where  it  is  said :  "The 
English  rule,  above  quoted,  if  applied  to  the 
full  extent  of  its  words,  would  be  against  pub- 
lic policy."  In  Dillman  v.  Hoffman,  38  Wis. 
359,  doubt  is  suggested  whether  any  enlarge- 
ment of  the  doctrine  of  implied  easements,  be- 
yond rights  of  way  strictly  necessary  to  the 
use  of  the  dominant  estate,  is  at  all  wise. 
Largely  on  the  authority  of  that  case,  neces- 
sary rights  of  way  have  been  implied  in  sev- 
eral cases  ;  Jarstadt  v.  Smith,  51  Wis.  96,  8  N. 
W.  29 ;  Galloway  v.  Bonesteel,  65  Wis.  79,  26 
N.  W.  262,  56  Am.  Rep.  616 ;  Johnson  v.  Bor- 
son,  77  Wis.  593,  46  N.  W.  815,  20  Am.  St.  Rep. 
146 ;  Benedict  v.  Barling,  79  Wis.  551,  48  N.  W. 
670;  but  no  other  easement  than  a  right  of 
way  has  been  held  implied  in  that  state; 
Miller  v.  Hoeschler,  126  Wis.  263,  105  N.  W. 
790,  8  L.  R.  A.  (N.  S.)  327,  where  the  con- 
clusion is  reached  that  even  if,  in  some  ex- 
treme cases,  there  must  be  any  easement 
other  than  right  of  way  implied  from  neces- 
sity, that  necessity  must  be  so  clear  and  ab- 
solute that,  without  the  easement,  the  gran- 
tee cannot,  in  any  reasonable  sense,  be  said 
to  have  acquired  that  which  is  expressly 
granted. 

In  New  York  the  rule  of  strict  necessity 
is  applied  to  reservations,  but  not  to  grants ; 
Paine  v.  Chandler,  134  N.  Y.  385,  32  N.  E.  18, 
19  L.  R.  A.  99.  The  reservation  of  an  ease- 
ment will  not  be  implied  except  in  cases 
where  it  was  apparent,  continuous,  and 
strictly  necessary ;  Wells  v.  Garbutt,  132  N. 
Y.  430,  30  N.  E.  97S;  Whyte  v.  Builders' 
League  of  New  York,  164  N.  Y.  429,  58  N.  E. 
517.  The  former  case  was  approved  and  fol- 
lowed in  Walker  v.  Clifford,  12S  Ala.  67,  29 
South.  5S8,  86  Am.  St.  Rep.  74.     In  Stuyve- 


EASEMENT 


971 


EASEMENT 


sant  v.  Early,  58  App.  Div.  242,  08  N.  Y. 
Supp.  752,  a  distinction  between  an  Implied 
grant,  and  an  implied  reservation  was  recog- 

nized.  It  was  there  held  that  a  right  to 
drain  through  the  grantor's  premises  passed 
by  Implication,  on  the  ground  that  the  ease- 
ment was  visible  and  apparent    The  court 

said  that,  if  the  owner  had  conveyed  the 
servient  tenement  first,  no  easement  would 
have  been  implied. 

In  New  Jersey,  there  is  no  distinction  be- 
tween an  implied  grant  and  an  implied  res- 
ervation: Greer  v.  Van  Meter,  54  N.  J.  Eq. 
270,  33  Atl.  704;  so  in  Seibert  v.  Levan,  8 
Pa.  383,  49  Am.  Dec.  525,  the  distinction  be- 
tween an  implied  grant  and  an  implied  res- 
ervation was  denied,  following  the  rule  in 
Gale  &  Whately,  Easem.  52:  "It  is  true 
that,  strictly  speaking,  a  man  cannot  sub- 
ject one  part  of  his  property  to  another  by 
an  easement,  for  no  man  can  have  an  ease- 
ment in  his  own  property ;  but  he  obtains 
the  same  object  by  the  exercise  of  another 
right,  the  general  right  of  property;  but  he 
has,  nevertheless,  thereby  altered  the  quali- 
ty of  the  two  parts  of  his  heritage,  and  if, 
after  the  annexation  of  peculiar  qualities, 
he  alien  one  part  of  his  heritage,  it  seems 
but  reasonable,  if  the  alterations  thus  made 
are  palpable  and  manifest,  that  a  purchaser 
should  take  the  land,  burdened  or  benefited, 
as  the  case  may  be,  by  the  qualities  which 
the  previous  owner  had  undoubtedly  the 
right  to  attach  to  it." 

In  Burns  v.  Gallagher.  G2  Md.  4G4,  the 
test  was  said  to  be  that  the  doctrine  of  res- 
ervation of  an  easement  would  be  invoked 
when  the  necessity  is  so  strict  that  it  would 
be  unreasonable  to  suppose  the  parties  in- 
'  tended  the  easement  in  question  should  not 
be  used.  Where  the  owner  of  a  lot,  bounded 
on  one  side  by  a  highway  and  on  the  other 
by  the  ocean,  sold  that  half  of  the  estate 
which  adjoined  the  highway,  without  ex- 
pressly reserving  a  way  across  it  from  the 
highway  to  the  part  he  retained,  and  no  ac- 
cess could  be  had  to  the  unsold  portion  ex- 
cept by  the  ocean  or  by  crossing  the  land 
of  other  owners,  it  was  held,  following  the 
English  rule,  that  the  ocean  was  a  public 
highway,  and.  as  all  communication  was  not 
shown  to  be  cut  off,  the  grantor  must  in  fu- 
ture rely  on  such  access  as  the  sea  afforded. 
Hildreth  v.  Googins,  91  Me.  227,  39  Atl.  550. 

Where  it  is  not  necessary,  it  requires  de- 
scriptive words  of  grant  or  reservation  in 
the  deed  to  create  it;  Washb.  Easem.  95; 
36  Am.  Rep.  415.  The  common-law  rule  re- 
quiring the  word  "heirs"  in  the  creation  of 
an  estate  of  inheritance  by  deed  is  inappli- 
cable in  creating  a  permanent  easemenl  ; 
Chappell  v.  K.  Co.,  G2  Conn.  195,  24  Atl.  997, 
17  L.  R.  A.  420;  Lathrop  v.  Eisner,  93  Mich. 
599,  53  N.  W.  791.  See  Claflin  v.  R.  Co.,  157 
Mass.  489,  32  N.  E.  659,  20  L.  R.  A.  60S.  The 
use  of  the  word  appurtenances  is  not  suffi- 
cient to  create  an  easement  where  none  ex- 


isted before;  Bonelli  v.  Blakemore, 
136,  5  South.  228,  14  Am.  St.  Rep. 

An  easement  in  land  held  in  common  can- 
not be  acquired  by  one  of  the  tenant 
common  in  favor  of  land  held  by  him  in 
severalty,  as  a  right  of  flowage  over  com- 
mon property  by  a  tenant  owning  a  dam; 
Great  Falls  Co.  v.  Worster,  15  N.  II.  412; 
or  a   right  of  way  over  thi  11  land  by 

the   tenant   to  a   lot  in    the   rear    owned    by 
him ;  Boyd  v.  Hand,  65  Ga.  468. 

There  are  many  rights  which  in  their 
mode  of  enjoyment  partake  of  the 
of  easements,  such  as  a  custom  for  the  In- 
habitants of  a  village  to  dance  upon  a  par- 
ticular close  at  all  times  of  the  year;  1  Lev. 
l T» ; :  for  the  Inhabitants  of  a  parish  to  play 
at  all  kinds  of  lawful  games  in  a  close  at  all 
seasonable  times  of  the  year;  2  II.  El.  393; 
for  the  freemen  and  citizens  of  a  town  on  a 
particular  day  of  the  year  to  enter  upon  a 
close  and  have  horse  race-  thereon;  1  II.  & 
C.  72'.»;  that  every  inhabitant  of  a  town  shall 
have  a  way  over  certain  land  either  to 
church  or  to  market;  6  Co.  Rep.  59;  a  right 
to  use  a  strip  of  land  as  a  promenade;  [1900] 
1  Ir.  302;  a  custom  for  victuallers  to  erect 
booths  on  the  waste  of  a  manor  at  the  time 
of  fairs;  6  A.  &  E.  745;  for  the  inhabitants 
of  a  township  to  go  on  a  close  and  take  wa- 
ter from  a  spring ;  4  E.  &  B.  702 ;  to  move 
vessels  in  a  navigable  tidal  estuary  of  the 
Thames:  [1897]  2  Q.  B.  318;  to  deposit  oys- 
ters dredged  from  oyster  fisheries  upon  the 
foreshore  in  another  part  of  the  fishery ; 
[1901]  2  K.  B.  870;  for  all  the  fishermen  of 
a  parish  to  dry  their  nets  on  a  particular 
close;  [1904]  2  Ch.  534;  [1005]  2  Ch.  538; 
for  the  inhabitants  of  a  burgh  (in  Scotland  1 
to  use  a  strip  of  ground  for  recreation  and 
for  drying  clothes;  [1904]  A.  C.  73.  As. 
however,  the  existence  and  validity  of  these 
rights  generally  depend  on  some  local  cus- 
tom excluding  the  operation  of  the  general 
rules  of  law  (consuetudo  tollit  communem 
legem)  and  they  are  sometimes  entirely  in- 
dependent of  any  express  or  implied  agree- 
ment between  the  parties,  they  generally 
stand  upon  a  different  footing,  and  are  not 
in  all  respects  governed  by  the  same  princi- 
ples as  those  which  determine  the  boundaries 
of  private  easements.  When  claims  of  this 
kind  arc  unreasonable,  they  are  disallowed 
even  In-  cases  where  they  might  possibly 
have  formed  the  subject  of  a  valid  grant. 
When  it  is  said  that  a  custom  is  void  be- 
cause it  is  unreasonable,  nothing  more  is 
meant  than  that  the  unreasonable  character 
of  the  alleged  custom  conclusively  proves  that 
the  usage,  even  though  it  may  have  existed 
immemoiially,  must  have  resulted  from  acci- 
dent or  indulgence,  and  not  from  any  right 
conferred  in  ancient  times  on  the  party  set- 
ting up  the  custom;  9  II.  L.  Cas.  «',:»_:. 

The  general  public  cannot  acquire  by  user 
a  right  to  visit  a  monument  or  other  object 


EASEMENT 


972 


EASEMENT 


of  interest  on  private  property  (Stonehenge) ; 
[1905]  2  Ch.  Div.  188.  See  Jus  Spatiandi. 
Easements  are  extinguished  :  by  release ; 
by  merger,  when  the  two  tenements  in  re- 
spect of  which  they  exist  are  united  under 
the  same  title  and  to  the  same  person;  Par- 
sons v.  Johnson,  6S  N.  Y.  62,  23  Am.  Rep. 
149;  by  necessity,  or  abandonment,  as  by  a 
license  to  the  servient  owner  to  do  some 
act  inconsistent  with  its  existence;  Cart- 
wright  v.  Maplesden,  53  N.  Y.  622 ;  by 
cessation  of  enjoyment,  when  acquired  by 
prescription, — the  non-user  being  evidence 
of  a  release  where  the  abandonment  has  con- 
tinued at  least  as  long  as  the  user  from 
which  the  right  arose.  In  some  cases  a 
shorter  time  will  suffice;  2  Washb.  R.  P.  56, 
82,  453.  An  easement  acquired  by  grant 
cannot  be  lost  by  mere  non-user,  though  it 
may  be  by  non-user  coupled  with  an  inten- 
tion of  abandonment;  Welsh  v.  Taylor,  134 
N.  Y.  450,  31  N.  E.  896,  18  L.  R.  A.  535; 
Edgerton  v.  McMullan,  55  Kan.  90,  39  Pac. 
1021;  Tabbutt  v.  Grant,  94  Me.  371,  47  Atl. 
899;  Cox  v.  Forrest,  60  Md.  74.  A  presump- 
tion of  a  way  resting  in  grant  will  not  be 
created  by  the  fact  that  it  is  not  continuous- 
ly used  by  the  dominant  owner;  Bombaugh 
v.  Miller,  82  Pa.  203 ;  [1893]  A.  C.  162 ;  Tyler 
v.  Cooper,  47  Hun  (N.  Y.)  94.  The  destruc- 
tion of  an  easement  of  a  private  right  of 
way  for  public  purposes  is  a  taking  of  the 
property  of  the  dominant  owner  for  which 
he  must  be  compensated ;  U.  S.  v.  Welch,  217 
U.  S.  333,  30  Sup.  Ct.  527,  54  L.  Ed.  787,  28 
L.  R.  A.   (N.  S.)   385,  19  Ann.  Cas.  680. 

Prescription  does  not  run  against  the  ex- 
ercise of  a  servitude  in  favor  of  one  who 
resisted  and  prevented  its  exercise;  Sarpy  v. 
Hymel,  40  La.  Ann.  425,  4  South.  439.  Mere 
non-user  must  be  accompanied  by  adverse 
use  of  the  servient  estate;  Welsh  v.  Taylor, 
134  N.  Y.  450,  31  N.  E.  896,  18  L.  R.  A.  535, 
with  note  on  the  effect  of  non-user  generally. 
One  cannot  acquire  a  prescriptive  right  over 
his  own  lands  or  the  lands  of  another  which 
he  occupies  as  tenant ;  Vossen  v.  Dautel,  116 
Mo.  379,  22  S.  W.  734. 

An  easement  in  favor  of  land  held  in  com- 
mon will  be  extinguished  by  a  partition,  if 
nothing  is  said  about  it;  Livingston  v. 
Ketcham,  1  Barb.  (N.  Y.)  592.  As  to  the 
loss  or  extinguishment  of  easements,  see  1 
L.   R.  A.  214,  note. 

The  remedy  at  common  law  for  interfer- 
ence with  a  right  of  easement  is  an  action  of 
trespass,  or  where  it  is  for  consequential 
damages  and  for  an  act  not  done  on  plain- 
tiff's own  land,  of  case;  Brenton  v.  Davis,  8 
Blackf.  (Ind.)  317,  44  Am.  Dec.  769;  Gan- 
ley  v.  Looney,  14  Allen  (Mass.)  40.  Where 
the  act  complained  of  is  done  in  one  county, 
but  the  injurious  consequences  thereof  are 
felt  in  another,  the  action  may  be  brought  in 
the  latter;  Thompson  v.  Crocker,  9  Pick. 
(Mass.)  59;  Worster  v.  Lake  Co.,  25  N.  H. 


525.  Redress  may  also,  as  a  general  propo- 
sition, be  obtained  through  a  court  of  equi- 
ty, for  the  infringement  of  an  easement  and 
an  injunction  will  be  granted  to  prevent  the 
same ;  Washb.  Easem.  747. 

As  to  the  distinction  between  an  easement 
and  a  license,  see  License. 

See  Washburn,  Easements  ;  Abandonment  ; 
Air;  Ancient  Lights;  Backwatek;  Com- 
mon ;  Dam  ;  Highways  ;  Lateral  Support  ; 
Party-Wall;  Profit  A  Prendre;  Servitude; 
Street  ;   Support  ;   Way. 

EASTER  TERM.  In  English  Law.  For- 
merly one  of  the  four  movable  terms  of  the 
courts,  but  afterwards  a  fixed  term,  begin- 
ning on  the  15th  of  April  and  ending  on  the 
Sth  of  May  in  every  year,  though  sometimes 
prolonged  so  late  as  the  13th  of  May,  under 
stat.  11  Geo.  IV.  and  1  Will.  IV.  c.  70.  See 
Term. 

EASTERLY.  When  this  word  is  used 
alone  it  will  be  construed  to  mean  due  east ; 
but  this  is  a  rule  of  necessity,  growing  out 
of  the  indefiniteness  of  the  term  and  has  no 
application  where  other  words  are  used  for 
the  purpose  of  qualifying  its  meaning. 
Where  such  is  the  case  it  means  precisely 
what  the  qualifying  word  makes  it  mean; 
Fratt  v.  Woodward,  32  Cal.  227,  91  Am.  Dec. 
573. 

EAT  IND  E  SINE  DIE.  Words  used  on  an 
acquittal,  or  when  a  prisoner  is  to  be  dis- 
charged, that  he  may  go  without  day;  that 
is  that  he  be  dismissed.     Dane,  Abr.  Index. 

EAVES-DROPPERS.  In  Criminal  Law. 
Such  persons  as  wait  under  walls  or  win- 
dows or  the  eaves  of  a  house,  to  listen  to  dis- 
courses and  thereupon  to  frame  mischievous- 
tales. 

The  common-law  punishment  for  this  of- 
fence is  fine  and  finding  sureties  for  /good 
behavior;  4  Bla.  Com.  167;  State  v.  Williams, 
2  Ov.  (Tenn.)  108.  See  Com.  v.  Lovett,  4 
•Clark  (Pa.)  5;  1  Bish.  Cr.  L.  §  112;  State  v. 
Pennington,  3  Head  (Tenn.)  299,  75  Am.  Dec. 
771;  8  Haz.  Pa.  Reg.  305. 

EBB  AND  FLOW.  An  expression  used 
formerly  in  this  country  to  denote  the  limits 
of  admiralty  jurisdiction.  As  to  jurisdiction 
as  founded  on  ebb  and  flow  of  tide,  see  Ad- 
miralty. 

EBEREMURDER.     See  Aberemurder. 

ECCHYM0S1S.     In    Medical    Jurisprudence. 

Localized  discoloration  in  and  under  the 
skin.  An  extravasation  of  blood  by  rupture 
of  capillary  vessels,  and  hence  it  follows  con- 
tusion ;  but  it  may  exist,  as  in  cases  of  scur- 
vy, asphyxiation  and  other  morbid  condi- 
tions, without  the  latter.  Ryan  Med.  Jur. 
172.  Ecchymoses  produced  by  blows  upon 
a  body  but  a  few  hours  dead  cannot  be  dis- 
tinguished from  those  produced  during  life. 
1  Witth.  &  Beck.  Med.  Jur.  485;  2  Been, 
Med.  Jur.  22. 


ECCLESIA 


973 


ECCLESIASTICAL  COURTS 


ECCLESIA     (Lat.)-      An     assembly.      A 

Christian  assembly;  a  church.  A  place  of 
religious  worship.     Spelman,  Gloss. 

In  the  civil  law  this  word  retains  its  classical 
meaning  of  an  assembly  of  whatever  character. 
Du  Cange ;  Calvlnus,  Lex.;  Vicat.  Yoc.  Jur.  ;  Acts 
xix.  39.  Ordinarily  in  the  New  Testament  the  word 
denotes  a  Christian  assembly,  and  is.  rendered  into 
English  by  the  word  church.  It  occurs  twice  in 
the  gospels,  Matt.  xvi.  18,  xvlii.  17,  but  freq 
in  the  other  parts  of  the  New  Testament,  beginning 
with  Acts  ii.  47.  Ecclesia  there  never  denotes  the 
building,  however,  as  its  English  equivalent 
does.  In  the  law,  generally,  the  word  is  used  to  de- 
note a  place  of  religious  worship,  and  sometimes  a 
parsonage.     Spelman,  Gloss.     See  Church. 

ECCLESIASTIC.  A  clergyman;  one  des- 
tined to  the  divine  ministry:  as,  a  bishop, 
a  priest,  a  deacon. 

ECCLESIASTICAL  COMMISSIONERS. 

In  English  Law.  A  body  appointed  to  con- 
sider the  state  of  the  revenues,  and  the  more 
equal  distribution  of  episcopal  duties,  in  the 
several  dioceses.  They  were  first  appointed 
as  royal  commissioners  in  1835 ;  were  incor- 
porated in  1836,  and  now  comprise  all  the 
bishops  of  England  and  Wales  and  the  Lord 
Chief  Justice,  and  other  persons  of  distinc- 
tion.    2  Steph.  Com.  798. 

ECCLESIASTICAL  CORPORATIONS. 

Such  corporations  as  are  composed  of  per- 
sons who  take  a  lively  interest  in  the  ad- 
vancement of  religion,  and  who  are  associ- 
ated and  incorporated  for  that  purpose. 
Ang.  &  A.  Corp.  §  36. 

Corporations  whose  members  are  spiritual 
persons  are  distinguished  from  lay  corpora- 
tions ;  1  Bla.  Com.  470. 

They  are  generally  called  religious  corpo- 
rations in  the  United  States.  2  Kent  274; 
Ang.  &  A.  Corp.  §  37. 

In  the  earlier  times,  the  church  became  a  large 
property  owner.  Before  the  device  of  a  corporation 
sole  was  known  to  the  law,  there  was  the  greatest 
uncertainty  as  to  who  the  owner  of  church  property 
really  was.  Property  given  to  the  church  was  given 
to  the  patron  saint — the  gift  was  in  the  first  place 
to  God  and  the  saint,  and  only  in  the  second  place 
to  the  ecclesiastic  in  charge  of  it.  But  it  was  man- 
aged by  a  group  of  persons  and  they  were  per- 
petual because  their  numbers  were  always  being 
renewed.  Gradually  the  theory  that  they  were  per- 
sona fictCB  was  evolved  by  the  Canonists.  They 
became  persons  created  by  law — distinct  from  their 
members,  and  perpetual.  The  change  was  grad- 
ually accepted  by  the  common-law  lawyers  and  was 
extended  to  other  groups  which  had  nothing  to  do 
with  the  church.  The  growing  definiteness  of  the 
conception  of  the  corporation  had  reacted  upon  those 
ecclesiastical  corporations  which  had  originally  in- 
troduced the  idea  of  persona  ficta.  The  corporation 
was  a  person.  Gifts  were  made  to  a  parson  for  the 
benefit  of  the  church  and  no  longer  to  a  saint.  The 
parson  became  a  corporation  sole  and  gradually 
that  theory  obtained  recognition  at  the  common 
law ;  3  Holdsw.  Hist.  E.  L.  367 ;  see  16  L.  Q.  R. 
336,  where  Prof.  Maitland  suggests  that  "corpora- 
tion sole"  was  first  applied  to  a  parson  by  Brooke, 
author  of  the  Abridgment,  who  died  in  1538.  See,  as 
to  corporations  sole,  Corporation. 

See  Association  ;  Religious  Societies  ; 
Church. 

ECCLESIASTICAL  COURTS  (called,  also, 
Courts   Christian).       The  generic  name  for 


certain  courts  in  England  having  cognizance 
mainly   of  spiritual   matters. 

In  IS."  they  were  deprived  of  their  juris- 
diction in  probate  and  divorce  1  they 
now  deal  only  with  clergymen  of  the  Church 
Hi'  England  in  their  professional  character. 
Even  over  clergymen  their  power  "ii  ques- 
tions of  heresy  is  very  limited,  it  i<  not  an 
ecclesiastical  offense  to  deny  that  the  whole 
of  the  Scriptures  are  inspired,  or  to  reject 
parts  thereof  as  inherently  incredible,  etc., 
so  long  as  they  do  not  contradict  the  Arti- 
cles "i-  Formularies  of  the  Church  of  Eng- 
land.    Odgers,  Com.  L.  206. 

Sic  Courts  of  England;  Church  of  Eng- 
land; Court  of  Abches;  Couet  of  Convoca- 
tion; Court  of  Faculties;  Court  <  \    ! 
iars;     Consistory     Courts;     Archdeacon's 
Court;   Prerogative  Court;  Privy  Council. 

ECCLESIASTICAL  LAW.  The  law  of  the 
church. 

The  existence  In  England  of  a  separate  order  of 
ecclesiastical  courts,  and  a  separate  system  of  law 
by  them  administered,  may  be  traced  back  to  the 
time  of  William  the  Conqueror,  who  separated  the 
civil  and  the  ecclesiastical  jurisdictions,  and  forbade 
tribunals  of  either  class  from  assuming  cognizance 
of  cases  pertaining  to  the  other.  The  elements  of 
the  English  ecclesiastical  law  are  the  canon  law, 
the  civil  law,  the  common  law  of  England,  and  the 
statutes  of  the  realm.  The  jurisdiction  of  the  ec- 
clesiastical tribunals  extended  to  matters  concern- 
ing the  order  of  clergy  and  their  discipline,  and  also 
to  such  affairs  of  the  laity  as  "concern  the  health  of 
the  soul ;"  and  under  this  latter  theory  it  grasped 
also  cases  of  marriage  and  divorce,  and  testamen- 
tary causes.  But  in  more  recent  times,  1830-1858, 
these  latter  subjects  have  been  taken  from  these 
courts,  and  they  are  now  substantially  confined  to 
administering  the  judicial  authority  and  discipline 
incident  to  a  national  ecclesiastical  establishment. 
See  Canon  Law  ;  Ecclesiastical  Courts  ;  Asso- 
ciation ;    Church  ;    Religious  Society. 

ECHOUEMENT.  In  French  Marine  Law. 
Stranding. 

ECLAMPSIA  PARTURIENTIUM.  In  Med- 
ical Jurisprudence.  Puerperal  convulsions. 
Convulsive  movements,  loss  of  consciousness, 
and  coma  occurring  during  pregnancy,  par- 
turition or  the  puerperiurn.  The  attack  close- 
ly resembles  the  convulsions  of  epilepsy. 
The  disease  is  often  fatal,  causing  the  death 
of  the  patient  in  about  one-fourth  of  all  the 
cases,  and  foetal  death  in  about  one-half. 
Mental  defects  may  result  from  eclampsia. 
and  are  occasionally  permanent  American 
Text-book  of  Obstetrics. 

The  word  eclampsia  Is  of  Greek  origin  Signifirat 
splendorem,  fulgorem ,  eflvlgentiom,  ct  emicai 
qualcs    ex    oculis    aliquando    prodcunt.     Mctaphorice 
sumitur  dc  emicatione  flamma  vitalis  in  pi. 
ct  cctatis   vigore.     Castelli,    Lex.    Medic. 

There  can  be  but  little  doubt  that  many  of  the 
tragical  cases  of  infanticide  proceed  from  this 
cause.  The  criminal  judge  and  lawyer  cannot  in- 
quire with  too  much  care  into  the  symptoms  of 
this  disease,  in  order  to  discover  the  guilt  of  the 
mother,  where  it  exists,  and  to  ascertain  her  in- 
nocence, where  it  does  not.  See  two  well-reported 
cases  of  this  kind  in  the  Boston  Medical  Journal, 
vol.  27,  no.  10,  p.  161. 

EDICT  (Lat.  cdictunn.  A  law  ordained 
by   the   sovereign,    by    which   he   forbids   or 


EDICT 


974 


EDUCATE 


commands  something:  it  extends  either  to 
the  whole  country  or  only  to  some  particular 
provinces. 

Edicts  are  somewhat  similar  to  public  proclama- 
tions. Their  difference  consists  in  this, — that  the 
former  have  authority  and  form  of  law  in  them- 
selves, whereas  the  latter  are,  at  most,  declarations 
of  a  law  before  enacted. 

Among  the  Romans  this  word  sometimes  signified 
a  citation  to  appear  before  a  judge.  The  edicts  of 
the  emperors,  also  called  constitutiones  principium, 
were  new  laws  which  they  made  of  their  own  mo- 
tion, either  to  decide  cases  which  they  had  foreseen, 
or  to  abolish  or  change  some  ancient  laws.  They 
were  different  from  rescripts  or  decrees,  which  were 
answers  given  in  deciding  questions  brought  before 
them.  These  edicts  contributed  to  the  formation  of 
the  Georgian,  Hermogenian,  Theodosian,  and  Jus- 
tinian codes.  See  Dig.  1.  4.  1.  1 ;  Inst.  1.  2.  7  ;  Code 
1.   1;     Nov.  139. 

A  special  edict  was  a  judgment  in  a  case ; 
a  general  edict  was  in  effect  a  statute.  The 
praetor,  at  the  commencement  of  his  year 
of  office,  published  a  body  of  rules  as  to  the 
remedies  he  would  grant.  In  the  reign  of 
Hadrian  (A.  D.  131)  a  codified  edict  was 
published,  made  by  Salvius  Julianus,  and 
called  the  Edictum  Salvianum  or  Perpetuum. 

EDICTS  OF  JUSTINIAN.  Thirteen  con- 
stitutions or  laws  of  this  prince,  found  in 
most  editions  of  the  Corpus  Juris  Givilis 
after  the  Novels.  Being  confined  to  matters 
of  police  in  the  provinces  of  the  empire,  they 
are  of  little  use. 

EDICTUM    PERPETUUM.     See  Edict. 

EDITION.  The  term  applies  to  every 
quantity  of  books  put  forth  to  the  booksell- 
ing trade  at  one  time  by  the  publisher;  4 
K.  &  J.  656.  A  new  edition  is  published 
whenever,  having  in  his  warehouse  a  certain 
number  of  copies,  the  publisher  issues  a 
fresh  batch  of  them  to  the  public.  This,  ac- 
cording to  the  practice  of  the  trade  is  done, 
as  is  well  known,  periodically,  and  if,  after 
printing  20,000  copies,  a  publisher  should 
think  it  expedient  for  the  purpose  of  keep- 
ing up  the  price  of  the  work,  to  issue  them 
in  batches  of  a  thousand  at  a  time,  keeping 
the  rest  under  lock  and  key,  each  successive 
issue  would  be  a  new  edition  in  every  sense 
of  the  word;  4  K.  &  J.  667;  Short,  Litera- 
ture. 

EDITOR.  The  term  is  held  to  include  not 
only  the  person  who  writes  or  selects  the  ar- 
ticles for  publication,  but  he  who  publishes 
a  paper  and  puts  it  in  circulation.  Pennoyer 
v.  Neff,  95  U.  S.  721,  24  L.  Ed.  565 ;  Bunce  v. 
Reed,  16  Barb.   (N.  Y.)   350. 

ED  IT  US.  In  Old  English  Law.  Put  forth 
or  promulgated  when  speaking  of  the  pas- 
sage of  a  statute ;  and  brought  forth  or  born, 
when  speaking  of  the  birth  of  a  child.  Black, 
L.  Diet. 

EDMUNDS  ACT.  An  act  of  congress  of 
March  22,  18S2,  punishing  polygamy,  which 
see. 

EDUCATE.  Includes  proper  moral,  as 
well  as  intellectual  and  physical,  instruction. 


Ruohs  v.  Backer,  6  Heisk.  (Tenn.)  395,  19 
Am.  Rep.  598.  See  Williams  v.  MacDongall, 
39  Cal.  80;  Merrill  v.  Emery,  10  Pick. 
(Mass.)  507;  Peck  v.  Claflin,  105  Mass.  420; 
De  Camp  v.  Dobbins,  29  N.  J.  Eq.  36. 

EDUCATION.  It  may  be  directed  partic- 
ularly to  either  the  mental,  moral,  or  physi- 
cal powers  and  faculties,  but  in  its  broadest 
and  best  sense  it  refers  to  them  all.  Mt. 
Hermon  Boys'  School  v.  Gill,  145  Mass.  146, 
13  N.  E.  354. 

Legal  Education.  This  subject  has  been 
for  many  years  receiving  earnest  and  ex- 
tended attention  in  England  and  the  United 
States.  It  has  been  elaborately  treated  at 
various  times  by  committees  of  the  American 
Bar  Association,  in  which  a  report  was  made 
in  1879  by  Carleton  Hunt,  chairman,  and 
subsequent  reports  in  1881,  1890,  1891,  and 
1892.  See  the  annual  reports  of  those  years. 
In  1893  the  association  formed  a  section  of 
legal  education,  which  has  held  yearly  con- 
ferences for  the  reading  of  papers  and  dis- 
cussion on  the  subject,  which  has  been  ably 
and  elaborately  treated.  Its  work  in  1894 
was  published  by  the  United  States  in  the 
reports   of   the   Commissioner  of   Education. 

In  1901,  an  Association  of  Am'erican  Law 
Schools  was  organized  in  connection  with 
that  Association,  which  has  also  held  annual 
meetings. 

The  subject  has  also  been  much  discussed 
by  various  State  Bar  Associations,  as  will 
appear  by  reference  to  their  published  re- 
ports. 

An  interesting  address  by  Lord  Russell, 
Lord  Chief  Justice  of  England,  was  deliver- 
ed before  the  Benchers  of  Lincoln's  Inn,  Oc- 
tober, 1895.  See  also  a  paper  by  Austen  G. 
Fox  on  the  work  of  the  New  York  State 
Board  of  Examiners  (Am.  Bar  Ass'n  Report, 
1896,  p.  543,  and  10  Harv.  L.  Rev.  199).  The 
following  is  a  partial  list  of  books  and  pa- 
pers on  the  subject: 

Legal  Education,  by  Gerald  B.  Finch,  Lon- 
don, 1885;  1  Jurid.  Soc.  Papers  385;  Hoff- 
man's Course  of  Legal  Studies;  Warren's 
Introd.  to  Law  Studies;  Jones,  Legal  Educ. 
in  France;  Parliamentary  Reports  on  Inns 
of  Court,  1855,  and  on  Legal  Educ.,  1846; 
Sir  R.  Palmer's  Address  before  the  Legal 
Educ.  Association,  1S71 ;  Reports  of  Incor- 
porated Law  Society,  1893,  1894,  1895,  1896; 
Bar  Examinations  in  Canada,  18  Legal  News 
(Can.)  275;  3  Amer.  Lawy.  55,  283,  288; 
33  Am.  Law  Reg.  689;  N.  Y.  State  Bar  As- 
sociation Report,  1894;  7  Harv.  Law  Rev. 
203;  Sir  F.  Pollock's  Advice  to  Students,  95 
Law  Times  552 ;  Existing  Questions,  by 
Austin  Abbott,  26  Chi.  Leg.  News  72;  Meth- 
ods of  Study,  by  J.  N.  Field,  48  Alb.  L.  J. 
264;  34  id.  84;  24  Am.  L.  Rev.  211,  1027; 
Address  by  Lawrence  Maxwell,  Jr.,  30  Week- 
ly L.  Bull.  41;  48  Alb.  L.  J.  81-88;  47  id. 
496;  28  Can.  L.  J.  605;  9  Scot.  L.  Rev.  122; 
9  Harv.  L.  Rev.  169;  Case  System,  27  Am. 


EDUCATION 


975 


EFFECTS 


L.  Reg.  416;  23  Am.  L.  Rev.  1;  25  id.  234; 
22  id.  750;  In  Germany,  8  Am.  L.  Rec.  200; 
In  Japan,  5  G.  B.  17,  18;  Inns  of  Court,  1 
id.  68.  See  numerous  other  references  in 
Jones's  Index  of  Le^al  Periodicals. 

EFFECT.  The  operation  of  a  law,  of  an 
agreement,  or  an  act,  is  called  its  effect. 
Maize  v.  State,  4  Ind.  342, 

By  the  laws  of  the  United  States,  a  patent 
■cannot  "be  granted  for  an  effect  only,  but  it 
may  be  for  a  new  mode  or  application  of 
machinery  to  produce  effects;  Whittemore  v. 
Cutter,  1  Gall.  478,  Fed.  Cas.  No.  17,601. 
See  Gray  v.  James,  1  Ret.  C.  C.  394,  Fed.  Cas. 
No.  5,718. 

EFFECTS.  Property,  or  worldly  sub- 
stance. As  thus  used,  it  denotes  property 
in  a  more  extensive  sense  than  goods.  2 
Bla.  Com.  284.  See  The  Alpena,  7  Fed.  361. 
Indeed  the  word  may  be  used  to  embrace 
every  kind  of  property,  real  and  personal, 
Including  things  in  action;  as,  a  ship  at  sea; 
Welsh  v.  Parish,  1  Hill  (S.  C.)  155;  a  bond; 
Ba nning  v.  Sibley,  3  Minn.  389  (Gil.  2S2)  ; 
16  East  222;  shares  of  capital  stock;  Union 
Nat  Bank  v.  Byram,  131  111.  92,  22  N.  E. 
S42. 

In  a  will,  "effects"  may  carry  the  whole 
personal  estate;  5  Madd.  72;  15  Ves.  507; 
but  not  real  estate ;  Andrews  v.  Applegate, 
223  111.  535,  79  N.  E.  170,  12  L.  R.  A.  (N.  S.) 
661,  7  Ann.  Cas.  120;  Appeal  of  Price,  169 
Pa.  294,  32  Atl.  4r>."> ;  unless  the  word  "real" 
be  added;  15  M.  &  W.  450;  Foxall  v.  MeKen- 
ney,  3  Cranch  C.  C.  206,  Fed.  Cas.  No.  5,016; 
Sehouler,  Wills  §  509.  "Effects  either  real 
or  personal,"  in  the  residuary  clause  of  a 
will,  have  been  held  to  embrace  real  estate; 
22  L.  J.  Ch.  N.  S.  230;  Page  v.  Foust,  89  N. 
C.  447.  When  preceded  or  followed  in  a  will 
by  words  of  narrower  import,  if  the  bequest 
is  not  residuary,  it  will  be  confined  to  spe- 
cies of  property  of  the  same  kind  (ejusdem 
generis)  with  those  previously  described;  13 
Ves.  39;  Rop.  Leg.  210.  See  2  Sharsw.  Bla. 
Com.  384,  n.  Generally  speaking  the  word 
"effects"  in  a  will,  is  equivalent  to  "proper- 
ty" or  "worldly  substance" ;  but  the  inter- 
pretation may  be  restricted  to  articles  ejus- 
dem generis  with  those  previously  enumer- 
ated or  specified  ;  1  Ves.  Jr.  143 ;  15  Ves.  500. 

When  "the  effects"  passes  realty,  and 
when  personalty,  in  a  will,  see  1  Jarin.  Wills 
585,  590;  Ennis  v.  Smith,  14  How.  (U.  S.) 
400,  420,  14  L.  Ed.  472  ;  1  Cowp.  307 ;  L.  R. 
8  Ch.  Div.  501;  Will. 

In  a  treaty  between  the  United  States  and 
the  Netherlands,  "effects"  was  held  to  in- 
clude real  estate;  Dowd  v.  Sea  well,  14  N.  C. 
188;  and  in  a  treaty  between  Sweden  and 
the  United  States  "fonda  et  Oien*"  (trans- 
lated goods  and  effects)  was  held  to  embrace 
all  kinds  of  property;  Adams  v.  Akerlund, 
168  111.  032,  48  N.  E.  454.  But  these  words 
in  this  treaty  were  held  to  apply  to  personal- 


ty only  in  Meier  v.  Lee,  106  la.  303,  70  N. 
W.  712. 

EFFIGY.    The  figure  or  representation  of 

a  person. 

To  make  the  effigy  of  a  person  with  an  in- 
tent to  make  him  the  object  of  ridicule,  is 
libel  (q.  v.).     Hawk.  PI.  Cr.  b.  1,  c.  73,  s.  2; 

14  East  227;  2  Chitty,  Cr.   Law  & 

In  France  an  execution  by  effigy  or  in  effigy  was 
adopted  in  the  case  of  a  criminal  who  has  fled  from 
justice.  By  the  public  exposure  or  exhibition  of  a 
picture  or  representation  of  him  on  a  scaffold,  on 
which  his  name  and  the  decree  condemning  him  are 
written,  he  is  deemed  to  undergo  the  punishment 
to  which  he  has  been  sentenced.  Since  the  adop- 
tion of  the  Code  Civil,  the  practice  has  been  to  affix 
the  names,  qualities,  or  addition,  and  the  residence, 
of  the  condemned  person,  together  with  an  extract 
from  the  sentence  of  condemnation,  to  a  post  set 
upright  in  the  ground,  instead  of  exhibiting  a  por- 
trait of  him  on  the  scaffold.  Repert.  de  Villargucs ; 
Biret,  Vocab. 

EFFRACTOR.  One  who  breaks  through; 
one  who  commits  a  burglary. 

EGO.  I,  myself.  This  term  is  used  in 
forming  genealogical  tables,  to  represent  the 
person  who  is  the  object  of  inquiry. 

EGYPT.  As  to  courts  established  by  the 
Christian  Powers  in  Egypt,  see  Mixed  Tri- 
bunals. 

EIGHT  HOUR  LAWS.  Statutes  making 
eight  hours  a  day's  labor  for  workmen,  la- 
borers, and  mechanics. 

Acts  regulating  the  hours  of  labor  for  wo- 
men and  children  are  generally  upheld;  Com. 
v.  Mfg.  Co.,  120  Mass.  383;  Com.  v.  Beatty. 

15  Pa.  Super.  Ct.  5;  State  v.  Buchanan,  2'.t 
Wash.  G02,  70  Pac.  52,  59  L.  R.  A.  342,  92 
Am.  St.  Rep.  930;  but  contra.  Ritchie  v.  Peo- 
ple, 155  111.  98,  40  N.  E.  454,  29  L.  R.  A.  79. 
46  Am.  St.  Rep.  315,  where  the  Massachu- 
setts case  was  expressly  disapproved.  See 
Atkin  v.  Kansas,  191  U.  S.  207,  24  Sup.  Ct. 
124,  48  L.  Ed.  14S;  Liberty  of  Contract. 
Such  statutes  have  been  upheld  in  three 
classes  of  cases:  (1)  Occupations  injurious 
to  the  health  of  employes;  (2)  occupations 
in  which  women  and  children  are  employed  : 
(3)  occupations  involving  the  publi  •  safety 
and  welfare.  Holden  v.  Hardy,  1G9  U.  S. 
300,    18    Sup.    Ct.    Rep.   383,    42    L.    Ed.    7S0. 

An  act  providing  that  in  contracting  for 
municipal  work  the  contractor  should  bind 
himself  not  to  accept  more  than  eight  hours 
as  a  day's  work  to  be  performed  within  nine 
consecutive  hours  or,  except  in  case  of  ne- 
cessity, not  to  employ  any  one  for  more  than 
eight  hours  in  twenty-four  consecutive  hours. 
was  held  not  to  violate  either  the  federal  or 
tln>  New  Y'>rk  constitution:  People  v.  War- 
ren, 77  Hun  120,  28  N.  V.  Supp.  303;  People 
v.  Beck,  10  Misc.  77,  30  N.  Y.  Supp.  473,  re- 
versed on  other  -rounds  in  People  v.  Beck, 
141  X.   Y.  225,  39  X.   E.  80. 

other  courts  have  held  that  statutes  lim- 
iting a  day's  work  for  all  classes  of  median- 


EIGHT  HOUR  LAWS 


976 


EIS3STE 


ies,  servants  and  laborers  (except  farm  and 
domestic  workers)  to  eight  hours  are  invalid 
as  interfering  with  the  constitutional  rigbA 
to  contract ;  Low  v.  Printing  Co.,  41  Neb. 
127,  59  N.  W.  3G2,  24  L.  R.  A.  702,  43  Am.  St. 
Rep.  G70;  In  re  Bill  Providing  That  Eight 
Hours  Shall  Constitute  a  Day's  Labor,  21 
Colo.  29,  39  Pac.  328;  City  of  Cleveland  v. 
Const.  Co.,  67  Ohio  St.  197,  65  N.  E.  885,  59 
L.  R.  A.  775,  93  Am.  St.  Rep.  670;  Fiske  v. 
People,  1SS  111.  206,  58  N.  E.  985,  52  L.  R.  A. 
291;  State  v.  McNally,  48  La.  Ann.  1450,  21 
South.  27,  36  L.  R.  A.  533.  And  a  similar 
municipal  ordinance  was  held  invalid ;  Ex 
parte  Kuback,  85  Cal.  274,  24  Pac.  737,  9 
L.  R.  A.  482,  20  Am.  St.  Rep.  226 ;  City  of 
Seattle  v.  Smyth,  22  Wash.  327,  60  Pac.  1120, 
79  Am.  St.  Rep.  939. 

By  act  of  congress  of  August  1,  1S92,  the 
employment  of  all  laborers  and  mechanics 
employed  by  the  United  States,  the  District 
of  Columbia  or  by  any  contractor  upon  any 
of  the  public  works  of  the  United  States  or 
the  District  of  Columbia  is  limited  to  eight 
hours  in  any  one  calendar  day,  except  in 
cases  of  extraordinary  emergency.  A  viola- 
tion of  this  act  is  made  punishable  by  fine 
and  imprisonment  or  both.  The  act  was  up- 
held; Ellis  v.  U.  S.,  206  U.  S.  246,  27  Sup. 
Ct.  600,  51  L.  Ed.  1047,  11  Ann.  Cas.  589. 
A  statute  somewhat  similar  was  passed  June 
19,  1912.  A  similar  statute  of  Kansas  was 
held  not  to  infringe  the  freedom  to  contract, 
nor  deny  the  equal  protection  of  the  laws; 
Atkin  v.  Kansas,  191  U.  S.  207,  24  Sup.  Ct. 
124,  48  L.  Ed.  148,  affirming  State  v.  Atkin, 
64  Kan.  174,  67  Pac.  519,  97  Am.  St.  Rep. 
343.  A  statute  limiting  to  eight  hours  a 
day's  work  for  men  in  underground  mines, 
or  in  the  smelting,  refining  or  reduction  of 
metals,  is  constitutional;  Holden  v.  Hardy, 
169  U.  S.  366,  18  Sup.  Ct.  383,  42  L.  Ed. 
780,  affirming  State  v.  Holden,  14  Utah 
71,  46  Pac.  756,  37  L.  R.  A.  103;  contra, 
In  re  Bill  Providing  that  Eight  Hours  shall 
Constitute  a  Day's  Labor,  21  Colo.  29,  39 
Pac.  328. 

The  emergency  which  ^permits  days  of 
more  than  eight  hours'  work  is  something 
more  than  contemplated  emergencies  neces- 
sarily inhering  in  the  work;  U.  S.  v.  Gar- 
bish,  222  U.  S.  257,  32  Sup.  Ct.  77,  56  L.  Ed. 
190.     See  Labob  Laws. 

EIGNE.  A  corruption  of  the  French  word 
aine'.     Eldest  or  first-born. 

It  is  frequently  used  in  our  old  law-books ; 
bastard  eigne  signifies  an  elder  bastard  when 
spoken  of  two  children,  one  of  whom  was 
born  before  the  marriage  of  his  parents  and 
the  other  after;  the  latter  is  called  mulier 
puisne.     Littleton,  sect.  399. 

EINETIUS.  In  English  Law.  The  oldest; 
the  first-born.     Spelman,  Gloss. 


EIRE,    or    EYRE. 

journey.     See  Eyre. 


In    English    Law. 


EISNE.  The  senior ;  the  oldest  son.  Spell- 
ed, also,  eigne,  einsne,  aisne,  eign.  Termcs 
dc  la  Ley ;  1  Kelham. 

EISNETIA,  EINETIA  (Lat).  The  share 
of  the  oldest  son.  The  portion  acquired  by 
primogeniture.  Termes  de  la  Leg;  Co.  Litt. 
166  6;  Cowell. 

EITHER.  May  be  used  in  the  sense  of 
each.     Chidester  v.  Ry.  Co.,  59  111.  87. 

EJECTION.  Turning  out  of  possession.  3 
Bla.  Com.   199.     See   Ejectment. 

EJECTI0NE  CUST0DI/E  (Lat).  A  writ 
of  which  lay  for  a  guardian  to  recover  the 
land  or  person  of  his  ward,  or  both,  where 
he  had  been  deprived  of  the  possession  of 
them.     Fitzh.  N.  B.  139,  L. ;  Co.  Litt.  199. 

EJECTIONE  FIRM/E  (Lat  ejectment 
from  a  farm).  This  writ  lay  where  lands 
or  tenements  were  let  for  a  term  of  years, 
and  afterwards  the  lessor,  reversioner,  re- 
mainderman, or  a  stranger  ejected  or  ousted 
the  lessee  of  his  term.  The  plaintiff,  if  he 
prevailed,  recovered  the  term  with  damages. 
Hence  Blackstone  calls  this  a  mixed  action, 
somewhat  between  real  and  personal;  for 
therein  are  two  things  recovered,  as  well 
restitution  of  the  "term  of  years,"  as  dam- 
ages for  the  ouster  or  wrong.  This  writ  is 
the  original  foundation  of  the  action  of  eject- 
ment 3  Sharsw.  Bla.  Com.  199;  Fitzh.  N. 
B.  220,  F,  G;  Gibson,  Eject  3;  Stearn,  Real 
Act.  53,  400. 

EJECTMENT  (Lat.  e,  out  of,  jacere,  to 
throw,  cast).  A  form  of  action  by  which 
possessory  titles  to  corporeal  hereditaments 
may  be  tried  and  possession  obtained. 

A  form  of  action  which  lies  to  regain  the 
possession  of  real  property,  with  damages 
for  the  unlawful  detention. 

In  its  origin,  during  the  reign  of  Edw.  III.,  this 
action  was  an  action  of  trespass  which  lay  for  a 
tenant  for  years,  to  recover  damages  against  a  per- 
son who  had  ousted  him  of  his  possession  without 
•right.  To  the  judgment  for  damages  the  courts  soon 
added  a  judgment  for  possession,  upon  which  the 
plaintiff  became  entitled  to  a  writ  of  possession. 
The  action  of  de  ejectione  flrmce  (q.  v.),  was  framed 
to  meet  the  case  of  the  termor,  and  just  at  the 
close  of  the  middle  ages  it  was  held  that  under  it  he 
could  recover  his  term.  As  to  its  history  see  2  Poll. 
&  Maitl.  105.  As  the  disadvantages  of  real  actions 
as  a  means  of  recovering  land  for  the  benefit  of  the 
real  owner  from  the  possession  of  one  who  held 
them  without  title  became  a  serious  obstacle  to  their 
use,  this  form  of  action  was  taken  advantage  of 
by  Ch.  J.   Rolle  to  accomplish  the  same  result. 

In  the  original  action,  the  plaintiff  had  been  oblig- 
ed to  prove  a  lease  from  the  person  shown  to  have 
title,  an  entry  under  the  lease,  and  an  ouster  by 
some  third  person.  The  modifled  action  as  sanc- 
tioned by  Rolle  was  brought  by  a  fictitious  person 
as  lessee  against  another  fictitious  person  (the  cas- 
ual ejector)  alleged  to  have  committed  the  ouster. 
Service  was  made  upon  the  tenant  in  possession, 
with  a  notice  annexed  from  the  casual  ejector  to  ap- 
pear and  defend.  If  the  tenant  failed  to  do  this, 
judgment  was  given  by  default  and  the  claimant 
put  in  possession.  If  he  did  appear,  he  was  allowed 
to  defend  only  by  entering  into  the  consent  rule,  by 
which  he  confessed  the  fictitious  lease,  entry,  and 
ouster  to  have  been  made,  leaving  only  the  title  in 


EJECTMENT 


977 


EJECTMENT 


question.  The  tenant  by  a  subsequent  statute  was 
obliged,  under  heavy  penalties,  to  give  notice  to  his 
lessor  of  the  pendency  of  the   action. 

The  action  has  been  superseded  in  England  under 
the  Common  Law  Procedure  Act  (1852  §§  170-220)  by 
a  writ,  In  a  prescribed  form,  addressed,  on  the 
claimant's  part,  to  the  person  or  persons  in  posses- 
sion, by  name,  and  generally  "to  all  persons  enti- 
tled to  defend  the  possession"  of  the  premises  there- 
in described  ;  commanding  such  of  them  as  deny  the 
claimant's  title  to  appear  in  court  and  defend  the 
possession  of  the  property.  Not  only  the  person  to 
whom  the  writ  is  directed,  but  any  other  person  (on 
filing  an  affidavit  that  he  or  his  tenant  is  in  posses- 
sion, and  obtaining  the  leave  of  the  court  or  a 
judge),  is  allowed  to  appear  and  defend. 

In  England,  since  the  Judicature  Act, 
ejectment  has  given  place  to  a  new  action 
for  the  recovery  of  land. 

Ejectment  has  been  materially  modified  in  many 
of  the  states,  though  still  retaining  the  name ; 
but  is  retained  in  its  original  form  in  others,  and 
in  the  United  States  courts  for  those  states  in  which 
it  existed  when  the  circuit  courts  were  organized. 
In  some  of  the  states  it  has  never  been  in  use.  See 
3  Bla.  Com.  198. 

The  action  lies  for  the  recovery  of  cor- 
poreal hereditaments  only  ;  Carmalt  v.  Piatt, 
7  Watts  (Pa.)  318;  People  v.  Mauran,  5 
Denio  (N.  Y.)  3S9;  including  a  room  in  a 
house;  White  v.  Wrhite,  16  N.  J.  L.  202,  31 
Am.  Dec.  232;  upon  which  there  may  have 
been  an  entry  and  of  which  the  sheriff  can 
deliver  possession  to  the  plaintiff;  Jackson 
v.  Buel,  9  Johns.  (N.  Y.)  29S;  Nichols  v. 
Lewis,  15  Conn.  137;  and  not  for  incorpo- 
real hereditaments ;  Den  v.  Craig,  15  N.  J. 
L.  191;  Parker  v.  Packing  Co.,  17  Or.  510, 
21  Pac.  822,  5  L.  R.  A.  Gl ;  or  rights  of  dow- 
er; Jackson  v.  Vanderheyden,  17  Johns.  (N. 
Y.)  167,  8  Am.  Dec.  378;  Jones  v.  Hollopeter, 
10  S.  &  R.  (Pa.)  326;  or  a  right  of  way; 
Taylor  v.  Gladwin,  40  Mich.  232;  or  a  rent 
reserved ;  Van  Rensselaer  v.  Hayes,  5  Denio 
(N.  Y.)  477;  or  for  an  easement  to  use  land 
for  a  public  park ;  Canton  Co.  of  Baltimore 
v.  City  of  Baltimore,  106  Md.  69,  00  Atl.  679, 
67  Atl.  274,  11  L.  R.  A.  (N.  S.)  129;  or  to 
put  the  public  in  possession  of  land  appro- 
priated for  streets ;  Bay  County  v.  Bradley, 
39  Mich.  163,  33  Am.  Rep.  367;  City  of  Ra- 
cine v.  Crotsenberg,  61  Wis.  481,  21  N.  W. 
520,  50  Am.  Rep.  149 ;  or  of  an  ocean  beach ; 
Trustees  of  the  Freeholders  and  Commonalty 
of  Southampton  v.  Betts,  163  N.  Y.  454,  57 
N.  E.  762.  Ejectment  may  be  maintained  for 
the  possession  of  a  street  dedicated  to  the 
public  use;  City  of  Eureka  v.  Armstrong,  83 
Cal.  623,  22  Pac.  92S,  23  Pac.  1085;  City  and 
County  of  San  Francisco  y.  Grote,  120  Cal. 
59,  52  Pac.  127,  41  L.  R.  A.  335,  65  Am.  St. 
Rep.  155.  So  in  Village  of  Lee  v.  Harris, 
206  111.  428,  69  N.  E.  230,  99  Am.  St.  Rep. 
176 ;  French  v.  Robb,  67  N.  J.  L.  260,  51  Atl. 
509,  57  L.  R.  A.  956,  91  Am.  St.  Rep.  433; 
City  of  Winona  v.  Huff,  11  Minn.  119  (Gil. 
24).  It  is  said  that  the  right  to  the  pos- 
session, use  and  control  of  highways  is  pri- 
marily in  the  state,  and  that  the  state,  hav- 
ing by  express  grants  vested  in  the  cities 
Bouv.— 62 


and  villages  of  the  state  the  possession,  use 
and  control  of  their  streets  and  alleys,  the 
right  of  po£  ession,  use  and  control  is  re 
garded  as  a  legal  and  not  a  mere  equitable 
right,  and  that  in  that  view,  no  reason  ex- 
ists why  the  action  of  ejectment  may  not 
lie  maintained,  though  the  city  or  village 
had  not  the  legal  title;  Village  of  I.' 
Harris,  206  111.  428.  O'.i  X.  B,  230,  :>:»  Am. 
St.  Rep.  176;  and  see  City  of  Cleveland  v.  R. 
Co.,  '■>'■'<  Fed.  113  (reversed  on  other  grounds 
in  City  of  Cleveland  v.  R.  Co.,  147  Fed.  171. 
77  C.  C.  A.  467,  holding  that  ejectment  will 
lie  by  a  city  for  the  recovery  of  i 
of  its  streets,  though  the  effect  of  the  dedi- 
cation was  to  give  the  city  only  an  easement. 

One  is  liable  in  ejectment  for  the  projec- 
tion of  his  roof  over  another's  land;  Murphy 
v.  Bolger,  60  Vt.  IS.',,  15  Atl.  365,  1  L.  R.  a. 
309;  contra,  Rascb  v.  Noth,  !•!>  Wis.  285,  74 
X.  W.  820,  40  L.  R.  A.  577,  67  Am.  St.  Rep. 
858;  or  for  the  encroachment  of  the  founda- 
tions of  a  building  on  the  land  of  another. 
though  entirely  below  the  surface;  Wach- 
stein  v.  Christopher,  128  Ga.  229,  57  S.  E. 
511,  11  L.  R.  A.  (N.  S.)  917,  119  Am.  St. 
Rep.  381;  or  to  secure  the  removal  of  wins 
strung  through  the  air  over  one's  property, 
though  the  supports  are  on  adjoining  land : 
Butler  v.  Tel.  Co.,  186  N.  Y.  486,  79  N.  E. 
716,  11  L.  R.  A.  (X.  S.)  920,  116  Am.  St.  Rep. 
563,  9  Ann.  Cas.  858. 

It  may  be  brought  upon  a  right  to  an  es- 
tate in  fee-simple,  fee-tail,  for  life,  or  for 
years,  if  only  there  be  a  right  of  entry  and 
possession  in  the  plaintiff ;  McMillan's  Les- 
see v.  Robbins,  5  Ohio,  28;  Matthews  v. 
Ward,  10  Gill  &  J.  (Md.)  443;  Miller  v. 
Shackleford,  3  Dana  (Ky.)  289;  Middleton 
v.  Johns,  4  Gratt.  (Va.)  129:  Batterton  v. 
jLoakum,  17  111.  288;  Sears  v.  Taylor,  4  Cal 
38;  but  the  title  must  be  a  legal  one;  Wright 
V.  Douglass,  3  Barb.  (X.  Y.)  554;  Botts  v. 
Shield's  Heirs,  3  Litt.  (Ky.)  32;  Thompson 
v.  Wheatley,  5  Smedes  &  M.  (Miss,  i  499; 
Middleton  v.  Johns,  4  Gratt.  (Va.)  129; 
Foster  v.  Mora,  98  U.  S.  425,  25  L.  Ed.  191  : 
Hollingsworth  v.  Walker,  98  Ala.  543,  13 
South.  6;  Collins  v.  Hallow,  7:2  Tex.  ■":'■' I,  1" 
S.  W.  IMS;  Anson  v.  Townsend.  73  Cal.  415, 
15  Pac.  49;  Johnson  v.  Christian,  12S  U.  S. 
374,  9  Sup.  Ct.  87,  32  L.  Ed.  412  (but  in 
Pennsylvania  a  valid  equitable  title  will  sus- 
tain ejectment,  on  the  ground,  as  has  been 
said,  that,  (here  is  no  court  of  chancery  in 
that  state;  Peebles  v.  Reading,  8  S.  ft  R. 
[Pa.]  4S4;  Chase  v.  Irvin,  S7  Pa.  2S61  ;  which 
existed  at  the  commencement  of  the  suit; 
Carroll  v.  Xorwood's  Heirs,  5  Ilarr.  &  J. 
(Md.)  155;  McCulloch  v.  Cowher,  5  W.  ft  S. 
(  Pa.  I  427  ;  Pitkin  v.  Yaw,  13  111.  251 ;  Lauris- 
sini  v.  Doe,  25  Miss.  177,  57  Am.  Dec.  200; 
Layman  v.  Whiting,  20  Barb.  (X.  Y.)  559; 
Collins  v.  Ballow,  72  Tex.  330,  10  S.  W.  248; 
Green  v.  Jordan,  S3  Ala.  220,  3  South.  513,  3 
Am.  St.  Rep.  711;  Buxton  v.  Carter,  11  Mo. 


EJECTMENT 


978 


EJECTMENT 


481  (but  he  cannot  recover  if  the  title  is 
terminated  pending  the  action;  Brunsou  v. 
Morgan,  86  Ala.  318,  5  South.  495);  at  the 
date  of  the  demise;  Anderson  v.  Turner,  3 
A.  K.  Marsh.  (Ky.)  131;  Hargrove  v.  Powell, 
19  N.  C.  97;  Wood  v.  Morton,  11  111.  547; 
Scisson  v.  McLaws,  12  Ga.  166;  Fenn  v. 
Holme,  21  How.  (U.  S.)  481,  16  L.  Ed.  198; 
and  at  the  time  of  trial ;  Ratcliff  v.  Trimble, 
12  B.  Monr.  (Ky.)  32;  Beach  v.  Beach,  20 
Vt  83;  Cresap's  Lessees  v.  Hutson,  9  Gill 
(Md.)  269;  and  it  must  be  against  the  per- 
son having  actual  possession ;  Den  v.  Ste- 
phens, 18  N.  0.  5;  Den  v.  Oliver,  10  N.  C. 
479;  McDowell  v.  King,  4  Dana  (Ky.)  67; 
McDaniel  v.  Reed,  17  Vt.  674 ;  Huff  v.  Lake, 
9  Huinphr.  (Tenn.)  137;'  Hyde  v.  Folger,  4 
McLean  255,  Fed.  Cas.  No.  6,971;  Lucas  v. 
Johnson,  8  Barb.  (N.  Y.)  244;  Losee  v.  Mc- 
iarland,  86  Pa.  33.  A  railroad  company 
which  has  condemned  lands  for  railroad  pur- 
poses has  a  sufficient  title  to  sustain  an  ac- 
tion ;  Pittsburgh,  Ft.  W.  &  C.  Ry.  Co.  v.  Peet, 
152  Pa.  488,  25  Atl.  612,  19  L.  R.  A.  467. 

Plaintiff  in  ejectment  may  recover  as 
against  a  mere  trespasser,  on  proof  of  his 
former  possession  only,  without  regard  to 
his  title;  Green  v.  Jordan,  83  Ala.  220,  3 
South.  513,  3  Am.  St.  Rep.  711;  Wilson  v. 
Fine,  38  Fed.  789;  Nolan  v.  Pelham,  77  Ga. 
262,  2  S.  E.  639;  Ratcliff  v.  Iron  Works  Co., 
87  Ky.  559,  10  S.  W.  305 ;  Parker  v.  Ry.  Co., 
71  Tex.  132,  8  S.  W.  541;  Bradshaw  v.  Ash- 
ley, 180  U.  S.  59,  21  Sup.  Ct.  297,  45  L.  Ed. 
423. 

The  real  plaintiff  must  recover  on  the 
strength  of  his  own  title;  King  v.  Mullins, 
171  U.  S.  404,  18  Sup.  Ct.  925,  43  L.  Ed.  214 ; 
and  cannot  rely  on  the  weakness  of  the  de- 
fendant's; 1  East  246;  Lane  v.  Reynard,  2 
S.  &  R.  (Pa.)  65;  Boardman  v.  Bartlett,  6 
Vt.  631;  Den  v.  Sinnickson,  9  N.  J.  L.  149; 
Winton  v.  Rodger's  Lessee,  2  Ov.  (Tenn.) 
185  ;  Hall  v.  Gittings'  Lessee,  2  H.  &  J.  (Md.) 
112;  Doe  v.  Ingersoll,  11  Smedes  &  M. 
(Miss.)  249,  49  Am.  Dec.  57;  Clarke  v.  Diggs, 
28  N.  C.  159,  44  Am.  Dec.  73;  Woodworth  v. 
Fulton,  1  Cal.  295;  Garrett  v.  Lyle,  27  Ala. 
586;  Jones  v.  Lofton,  16  Fla.  189;  Holly 
River  Coal  Co.  v.  Howell,  36  W.  Va.  489,  15 
S.  E.  214;  Dunbar  v.  Green,  198  U.  S.  166, 
25  Sup.  Ct.  620,  49  L.  Ed.  998;  and  must 
show  an  injury  which  amounts  in  law  to  an 
ouster  or  dispossession ;  Cooley  v.  Penfield, 
1  Vt.  244;  Moore  v.  Gilliam,  5  Munf.  (Va.) 
346 ;  Edwards  v.  Bishop,  4  N.  Y.  61 ;  Lykens 
v.  Whelan.  15  Pa.  4S3 ;  an  entry  under  a  con- 
'  tract  which  the  defendant  has  not  fulfilled 
being  equivalent;  Jackson  v.  Moncrief,  5 
Wend.  (N.  Y.)  26;  Marlin  v.  Willink,  7  S.  &' 
R.  (Pa.)  297;  Harle  v.  McCoy,  7  J.  J.  Marsh. 
(Ky.)  318.  23  Am.  Dec.  407;  Dennis  v.  Ward- 
er, 3  B.  Monr.  (Ky.)  173;  Den  v.  Westbrook, 
15  N.  J.  L.  371,  29  Am.  Dec.  692;  Baker  v. 
Gittings'  Lessee,  16  Ohio  4S5 ;  Prentice  v. 
Wilson,  14  111.  HI. 

It  may  be  maintained  by  one  joint  tenant 


or  tenants  in  common  against  another  who 
has  dispossessed  him ;  White's  Lessee  v. 
Sayre,  2  Ohio  110;  Barnitz  v.  Casey,  7  Cra. 
(U.  S.)  456,  3  L.  Ed.  403;  Clark  v.  Vaughan, 
3  Conn.  191;  Den  v.  Bordine,  20  N.  J.  L. 
394 ;  Edwards  v.  Bishop,  4  N.  Y.  61 ;  Peterson 
v.  Laik,  24  Mo.  541,  69  Am.  Dec.  444;  Avery 
v.  Hall,  50  Vt.  11.  Co-tenants  need  not  join 
as  against  a  mere  disseisor ;  Smith  v.  Stark- 
weather, 5  Day  (Conn.)  207;  Chesround  v. 
Cunningham,  3  Blackf.  (Ind.)  82;  Craig  v. 
Taylor,  6  B.  Monr.  ( Ky.)  457 ;  but  mere  ten- 
ants in  common  may ;  Hicks  v.  Rogers,  4 
Cra.  (U.  S.)  165,  2  L.  Ed.  583;  Innis  v.  Craw- 
ford, 4  Bibb  (Ky.)  241;  Camp  v.  Homesley, 
36  N.  C.  211.  It  may  be  maintained  by  the 
wife  against  the  husband  to  recover  her  sep- 
arate real  estate;  Crater  v.  Crater,  118  Ind. 
521,  21  N.  E.  290,  10  Am.  St.  Rep.  161. 

A  court  of  law  will  not  uphold  or  enforce 
an  equitable  title  to  land  as  a  defence  to 
an  action  of  ejectment ;  Johnson  v.  Christian, 
128  U.  S.  374,  9  Sup.  Ct.  87,  32  L.  Ed.  412 ; 
Doe  v.  Aiken,  31  Fed.  393 ;  contra,  Brolaskey 
v.  McClain,  61  Pa.  146;  but  see,  Brame  v. 
Swain,  111  N.  C.  542,  15  S.  E.  938 ;  Hamilton 
v.  Williford,  90  Ga.  210,  15  S.  E.  753.  In 
Pennsylvania,  ejectment  lies  on  an  equitable 
title  and  is  the  full  equivalent  of  a  bill  in 
equity;  Winpenny  v.  Winpenny,  92  Pa.  440. 
Where  a  defendant  has  entered  a  disclaim- 
er of  title  and  possession,  he  cannot  defend 
his  possession  as  agent  of  his  wife  without 
first  showing  a  title  in  her ;  Duncan  v.  Sher- 
man, 121  Pa.  520,  15  Atl.  565. 

Where  a  defendant  in  ejectment  repudi- 
ates a  tenancy  and  claims  a  title  in  fee,  he 
dispenses  with  the  necessity  of  notice  to 
quit;  McGinnis  v.  Fernandes,  126  111.  228, 
19  N.  E.  44;  Simpson  v.  Applegate,  75  Cal. 
342,  17  Pac.  237. 

Plaintiff  in  ejectment  in  proving  title  need 
not  go  further  back  than  the  common  source 
of  title,  where  the  defendant  claims  under 
the  same  person ;  Johnson  v.  Cobb,  29  S.  C. 
372,  7  S.  E.  601 ;  Luen  v.  Wilson,  85  Ky.  503, 
3  S.  W.  911 ;  Laidley  v.  Land  Co.,  30  W.  Va. 
505,  4  S.  E.  705;  Blalock  v.  Newhill,  78  Ga. 
245,  1  S.  E.  383;  Drake  v.  Happ,  92  Mich. 
580,  52  N.  W.  1023. 

In  case  title  is  denied,  it  cannot  be  prov- 
ed by  merely  producing  a  deed,  but  when 
such  a  deed  is  produced  from  a  grantor  who 
was  in  possession,  or  where  possession  was 
taken  and  held  under  such  deed,  and  the 
premises  in  the  deed  are  clearly  identified, 
then  a  prima  facie  title  is  shown;  Hartley 
v.  Ferrell,  9  Fla.  374;  McFarlane  v.  Ray,  14 
Mich.  465;  Hall  v.  Kellogg,  16  Mich.  135; 
Cottrell  v.  Pickering,  32  Utah  62,  88  Pac. 
696,  10  L.  R.  A.   (N.  S.)  404. 

The  plea  of  not  guilty  raises  the  general 
issue;  Zeigler  v.  Fisher's  Heirs,  3  Pa.  365; 
King  v.  Kent's  Heirs,  29  Ala.  542. 

The  judgment  is  that  the  plaintiff  recover 
his  term  and  damages;  Battin  v.  Bigelow, 
Pet.  C.  C.  452,  Fed.  Cas.  No.  1,108 ;  Congrega- 


EJECTMENT 


979 


ELDER  BRET1 


tional  Soc.  in  Newport  v.  Walker,  18  Vt.  GOO; 
Livingston  v.  Tanner,  12  Barb.  (N.  Y.)  481; 
Carroll  v.  Carroll,  16  How.  (U.  8.)  275,  14 
L.  Ed.  936;  or  damages  merely  where  the 
the  term  expires  during  suit ;  Jackson  v. 
Davenport,  is  Johns.  (N.  Y.)  295. 

Where  the  fictitious  form  is  abolished,  how- 
ever, the  possession  of  the  hind  generally  is 
recovered,  and  the  recovery  may  be  of  part 
of  what  the  demandant  claims;  Treon's  Les- 
see v.  Emerick,  6  Ohio  391  ;  Thornton's  Les- 
see v.  Edwards.  1  11.  &  McH.  (Md.)  158; 
Vrooman  v.  Weed,  2  Barb.  (N.  I.)  330; 
Lenoir  v.  South,  32  N.  0.  237;  Little  v.  Bish- 
op, 9  B.  Monr.  (Ky.)  240;  Loard  v.  Philips. 
4  Sneed  (Tenn.)  566;  Messick  v.  Thomas,  Si 
Va.  891,  G  S.  E.  482. 

The  damages  are,  regularly,  nominal  mere- 
ly ;  and  in  such  case  an  action  of  trespass 
for  mesne  profits  lies  to  recover  the  actual 
damages;  Baron  v.  Aheel,  3  Johns.  (N.  Y.) 
481,  3  Am.  Dec.  515;  Shipley  v.  Alexander, 
3  Harr.  &  J.  (Md.)  84,  5  Am.  Dec.  121  ;  .Mil- 
ler v.  Melchor,  35  N.  C.  439;  Davis  v.  Doe, 
25  Miss.  445;  Saunders  v.  Lee,  101  N.  C.  3, 
7  S.  E.  590;  Gooch  v.  Botts,  110  Mo.  419, 
20  S.  W.  192;  Roach  v.  Heffernan,  65  Yt. 
485,  27  Atl.  71.  See  Trespass  fob  Mesne 
Profits  ;  Adverse  Possession. 

In  some  states,  however,  full  damages  may 
be  assessed  by  the  jury  in  the  original  ac- 
tion ;  Congregational  Soc.  in  Newport  v. 
Walker,  18  Vt.  GOO;  Livingston  v.  Tanner, 
12  Barb.  (N.  Y.)  4S1 ;  Jenkins  v.  Means,  59 
Ga.  55;  Emrich  v.  Ireland,  55  Miss.  390; 
Whissenhunt  v.  Jones,  78  N.  C.  3G1 ;  and  the 
verdict  is  conclusive  as  to  the  damages ; 
Mills  v.  Fletcher,  100  Cal.  142,  34  Pac.  G37. 

For  the  history  of  ejectment,  see  3  Sel. 
Essays  in  Anglo-Amer.  L.  Hist.  611. 

EJECTUM.  That  wbich  is  thrown  up  by 
the  sea.  Warder  v.  La  Belle  Creole,  1  Pet. 
Adm.  Dec.  43,  Fed.  Cas.  No.  17,1G3.  See 
Jetsam. 

EJERCIT0RIA.  In  Spanish  Law.  The  ac- 
tion which  lies  against  the  owner  of  a  ves- 
sel for  debts  contracted  hy  the  master,  or 
contracts  entered  into  by  him,  for  the  pur- 
pose of  repairing,  rigging,  and  victualling 
the  same. 

EJUSDEM  GENERIS  (Lat).  Of  the  same 
kind. 

In  the  construction  of  law?,  wills,  and  other  in- 
struments, general  words  following  an  enumeration 
of  specific  things  are  usually  restricted  to  things  of 
the  same  kind  (ejusdem  generis)  as  those  specifi- 
cally   enumerated. 

So,  in  the  construction  of  wills,  whin  certain  ar- 
ticles are  enumerated,  the  term  goods  is  to  be  re- 
stricted to  those  ejusdem  generis.  Bacon,  Abr.  Leg- 
acies, B  ;  Minor's  Ex'x  v.  Dabney,  3  Raud.  (Va.) 
191 ;  2  Atk.  113  ;  3  id.  61.  See  Interpretation  ;  Et 
Cetera. 

ELDER  BRETHREN.  A  distinguished 
hody  of  men,  elected  as  masters  of  Trinity 
House,  an  institution  incorporated  in  the 
reign  of  Henry  VI1L,  charged  with  numerous 


important  duties  relating  to  the  marine,  such 
as  the  superintendence  of  Ligb'thouses.  Mozl. 
&  W.  Diet;  2  Steph.  :  The  full  title 

of  the  corporation  is  Elder  Brethren  of  the 
Holy  and   Undivided  Trinity.     It  <■ 
a   master,  deputy  master,  a  certain  number 
of  acting   elder   brethren,   and   of  honorary 
elder   brethren,    with   an   unlimited   nu 
of  younger  brethren,  the  master  and  honor- 
ary elder  brethren  being  chosen  on  aci 
of   eminent    social    position,    and    I 
by  the  court  of  elder  brethren.    The  deputy 
•  and  elder  brethren  are  chosen  from 
such  of  the  younger  brethren  as  have  been 
commanders    In    the    navy    tour   years    ; 
ously,  or  have  served  as  master  in  the 
chant  service  on  foreign  voyages  for  at  Leasl 
four  years.     The  younger  brethren  are  chos- 
en from  officers  of  the  navy  or  the  merchant 
shipping  service  who  possess  certain  qualifi- 
cations.    Their  action  is  subject    to  an  ap- 
peal to    the    Board   of   Trade.     Two   of   tin- 
elder  brethren  assist  the  court  of  admiralty 
at  the  hearing   of  every   suit   for   collision, 
and  occasionally  in  suits  for  salvage.    Their 
duty  is  to  guide  the  court  by   advice  only; 
though  influential,  their  opinion  is  not  Legal- 
ly binding  on   the  judges. 

ELDEST.  He  or  she  who  has  the  great- 
est age. 

The  eldest  son  of  a  man  is  his  first-born, 
the  primo-genitus ;  L.  R.  2  App.  Cas.  698;  I. 
R.  12  Ch.  Div.  171.     See  Primogeniture. 

ELECTED.     In    its    ordinary    signification 

this  word  carries  with  it  the  idea  of  a  vote, 
generally  popular,  sometimes  more  restrict- 
ed, and  cannot  be  held  the  synonym  of  any 
other  mode  of  filling  a  position.  State  v. 
Irwin,  5  Nev.  121;  Magruder  v.  Swann,  25 
Md.  214. 

ELECTION.  Choice;  selection.  The  se- 
lection of  one  person  from  a  specified  class 
to  discharge  certain  duties  in  a  state,  cor- 
poration, or  society. 

The  word,  in  its  ordinary  signification,  carries  the 
idea  of  a  vote,  and  cannot  be  held  the  synonym  of 
any  other  mode  of  filling  a  position;  State  v.  Irwin, 
5  Nev.  111.  See  People  v.  Molitor,  23  Mich.  341  ; 
Appointment.  Election  has  often  been  construed  to 
mean  thft  act  of  casting  and  receiving  the  ballots,— 
the  actual  time  of  voting,  not  the  date  of  the  certifi- 
cate of  election.     State  v.  Tucker,  54  Ala. 

Both  houses  of  congress,  and  parliamentary  bodies 
in  general,  claim  to  be  the  sole  judges  of  the  elec- 
tion of  their  own  members.     This  right  seems  to  be 
derived   from  the  declaration  of  rights,  deliv.  i 
the  commons  to  the  king  in  1G04.     Brown,  Law  Diet 

In  the  United  States  this  power  is  vested  in  con- 
gress and  the  state  legislatures  by  the  federal  and 
state  constitutions,  and  chancellor  Kent  considers 
that  "there  is  no  other  body  known  to  the  constitu- 
tion to  which  such  power  might  safely  be  trusted. 
It  is  requisite  to  preserve  a  pure  and  genuine  rep- 
resentation, and  to  control  the  evils  of  irregular, 
corrupt,  and  tumultuous  elections ;  and  as  each 
house  acts  in  these  cases  in  a  judicial  character,  its 
decisions,  like  the  decisions  of  any  other  court  of 
justice,  ought  to  be  regulated  by  known  principles 
of  law,  and  strictly  adhered  to  for  the  sake  of  uni- 
formity and  certainty  ;"  1  Com.  235.  On  the  other 
hand,  experience  of  the  temptation  to  defeated  mem- 


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bers,  which  makes  contests,  in  reliance  (unfortu- 
nately too  often  well-founded)  upon  the  Irresponsi- 
bility of  party  majorities,  leads  Mr.  Justice  Miller  to 
remark  that:  "This  provision  .  .  .  seems,  from 
the  experience  of  the  past,  to  have  been  one  of  those 
principles  adopted  from  the  English  house  of  com- 
mons which  has  not  worked  well  with  our  institu- 
tions, and  which  the  house  of  commons  itself  has 
been  obliged  to  abandon.  Contested  elections  are 
now,  by  the  law  of  England,  tried  before  the  judi- 
ciary, and  the  judgment  of  the  court  is  conclusive 
upon  the  subject.  It  is  conceded  on  all  hands  that 
justice  is  in  this  way  more  nearly  administered 
with  accuracy  than  it  was  under  the  former  system. 
Both  in  that  country  and  in  this,  under  the  former 
method,  the  result  of  a  contested  election  has  been 
very  generally  forecast  by  a  knowledge  of  the  rela- 
tions of  the  parties  contesting  to  the  political  ma- 
jority or  minority  of  the  house  in  which  the  contest 
is  carried  on.  As  this  is  a  constitutional  provision, 
however,  ■  there  exists  no  power  in  the  legislature, 
without  an  amendment  of  that  instrument,  to  refer 
these  contested  cases  to  the  judiciary.  The  increas- 
ing number  of  contested  election  cases  arising  out 
of  frauds  supposed  to  be  perpetrated  at  the  elec- 
tions themselves,  the  investigation  of  which  is  al- 
ways difficult,  and  the  uncertainty  of  a  fair  and 
impartial  decision  .  .  .  render  it  doubtful  wheth- 
er the  entire  provision  on  this  subject  is  of  any 
value."     Miller,   Const.   193. 

Much  may  be  said  in  support  of  the  views  of  each 
of  these  learned  commentators,  and  there  is  a  pos- 
sible middle  ground  practicable  under  existing  con- 
stitutional conditions,  which  might  be  suggested. 
That  would  be  to  provide  for  a  judicial  determina- 
tion of  the  contest  in  the  first  instance,  reserving  to 
the  legislative  body  the  final  decision  only  on  ex- 
ception or  appeal  under  such  limitations  as  would 
preserve  and  emphasize  the  judicial  character  of 
the  proceeding.  This  would,  on  the  one  hand,  pre- 
serve the  absolute  independence  of  the  legislature 
as  one  of  three  co-ordinate  branches  of  the  govern- 
ment,— a  basic  principle,  it  may  be  remarked,  of 
American  and  not  of  English  governmental  policy, — 
and  at  the  same  time  add  to  the  difficulty  and  prob- 
ably lessen  the  frequency  of  partisan  decisions, 
contrived  in  the  comparative  secrecy  of  committee 
rooms  and  consummated  by  the  mere  brute  force  of 
a  majority. 

Election  of  Public  Officers.  The  right  to 
vote  is  not  a  natural  one  but  is  derived  from 
constitutions  and  statutes;  it  is  not  a  privi- 
lege protected  by  the  Fourteenth  Amend- 
ment; Minor  v.  Happersett,  21  Wall.  163, 
22  L.  Ed.  627.  Each  state  determines  for  it- 
self the  qualifications  of  its  voters,  and  the 
United  States  adopts  the  state  law  upon  the 
subject  as  the  rule  in  federal  elections  in 
accordance  with  Section  2,  article  1  of  the 
Constitution  of  the  United  States,  which  pro- 
vides that  "the  house  of  representatives  shall 
be  composed  of  members  chosen  every  sec- 
ond year  by  the  people  of  the  several  states, 
and  the  electors  in  each  state  shall  have  the 
qualifications  required  for  electors  of  the 
most  numerous  branch  of  the  state  legisla- 
ture." 

The  power  of  the  state  governments,  how- 
ever, to  prescribe  the  qualifications  of  elec- 
tors is  limited  by  the  Fifteenth  Amendment 
of  the  Constitution  which  provides  "that  the 
right  of  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  Unit- 
ed States  or  by  any  state,  on  account  of 
race,  color,  or  previous  condition  of  servi- 
tude."    This  provision  renders  void  all  pro- 


visions of  a  state  constitution  or  a  state  law 
which  come  in  conflict  with  it  or  With  any 
act  of  congress  passed  to  enforce  it;  Mc- 
Crary,  Elections  2 ;  Ex  parte  Yarbrough,  110 
U.  S.  663,  4  Sup.  Ct,  152,  28  L.  Ed.  274.  In 
the  territories  the  right  to  vote  is  regulated 
by  congress. 

The  right  to  vote,  if  once  given  by  a  state 
constitution,  cannot  be  impaired  or  taken 
away  by  legislation.  But  the  legislature  can 
regulate  the  right  to  vote  in  a  reasonable 
way  by  prescribing  questions  to  be  propound- 
ed to  voters  to  test  their  qualifications ; 
State  v.  Lean,  9  Wis.  279;  or  by  requiring 
them  to  swear  to  support  the  Constitution 
of  the  United  States,  or  by  requiring  regis- 
tration. But  regulations  must  not  in  any 
way  impair  the  right  to  vote,  and  hence  it 
has  been  held  that  an  act  prohibiting  from . 
voting  those  who,  having  been  drafted  into 
the  military  service  and  duly  notified,  had 
failed  to  report  for  duty,  was  void;  McCaf- 
ferty  v.  Guyer,  59  Pa.  109.  An  act  requiring 
the  voter  to  declare  under  oath  that  he  is 
not  guilty  of  any  crime  and  has  not  volun- 
tarily borne  arms  against  the  United  States 
has  also  been  held  void;  Rison  v.  Farr,  24 
Ark.  161,  87  Am.  Dec.  52.  But  see  Randolph 
v.  Good,  3  W.  Va.  551.  The  right  to  vote 
can,  however,  be  limited  to  male  citizens  or 
extended  to  females,  but"  only  upon  the  same 
terms  and  conditions  as  are  applied  to 
males;  U.  S.  v.  Anthony,  11  Blatch.  200,  Fed. 
Cas.  No.  14,459 ;  Minor  v.  Happersett,  53  Mo. 
58;  Wheeler  v.  Brady,  15  Kan.  26;  Lyman 
v.  Martin,  2  Utah,  136.  Different  qualifica- 
tions for  persons  to  vote  upon  the  question 
of  licensing  the  sale  of  intoxicating  liquors, 
from  those  prescribed  in  a  state  constitution 
for  electors  of  public  officers,  may  be  pre- 
scribed by  a  legislative  act;  Willis  v.  Kalin- 
bach,  109  Va.  475,  64  S.  E.  342,  21  L.  R.  A. 
(N.  S.)  1009;  but  the  legislature  may  not 
prescribe  additional  qualifications  for  voters 
to  those  fixed  in  the  constitution;  Johnson 
v.  Grand  Forks  County,  16  N.  D.  363,  113  N. 
W.  1071,  125  Am.  St.  Rep.  662. 

The  qualifications  of  voters  in  the  different 
states  are  usually  citizenship,  residence  for 
a  given  period,  age  (21  years),  sometimes 
payment  of  taxes,  ownership  of  land,  and 
education,  and  mental  capacity.  See  Grand- 
father Clause. 

As  to  woman  suffrage,  see  that  title. 

See  Citizen  ;  Residence  ;  Naturalization  ; 
Domicil. 

Elections  must  be  held  at  the  time  and 
place  required  by  law.  Legislative  or  con- 
stitutional provisions  on  this  questior  are 
mandatory;  Chase  v.  Miller,  41  Pa.  403; 
Opinion  of  the  Judges,  30  Conn.  591 ;  and 
votes  cast  by  soldiers  in  the  field,  outside  of 
the  state,  under  a  statute  permitting  it,  are 
not  valid,  when  the  constitution  requires  a 
citizen  to  vote  at  his  place  of  residence.  In 
the  absence  of  any  constitutional  provision 


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a  statute  providing  that  soldiers  in  service 
may  vote  is  valid;  Morrison  v.  Springer,  15 
la.  304. 

A  soldier  making  his  permanent  residence 
at  a  soldiers'  home  does  not  thereby  acquire 
a  right  to  vote  in  the  precinct  where  the  in- 
stitution is  situated;  Powell  v.  Spackman, 
7   Idaho  092,  05  Pac.  503,   54  L.   R.  A.   378 

If  polls  are  moved  to  a  place  not  author- 
ized, the  election  becomes  void ;  Melvin'S 
Case,  OS  Pa.  333;  if  the  polls  an-  not  kept 
open  as  required  by  law,  the  election  will  be 
set  aside,  if  enough  votes  were  thereby  ex- 
cluded to  change  or  render  doubtful  the  re- 
sult; Knowles  v.  Yates,  31  Cal.  82;  Melvin's 
Case,  us  l'a.  333 ;  but  see  State  v.  Smith.  4 
Wash.  001,  30  Pac.  1064;  but  it  is  doubtful 
whether  a  few  minutes'  delay  in  opening  the 
polls  will  avoid  an  election;  5  Eng.  El.  Cas. 
3S7;  4  id.  378.  Closing  polls  too  soon;  Cle- 
land  v.  Porter,  74  111.  70,  24  Am.  Rep.  273; 
or  during  the  dinner  hour  will  not  vitiate 
the  election;  Fry  v.  Booth,  19  Ohio  St.  25. 
But  the  casting  of  epough  votes  after  the 
proper  hour  for  closing  to  change  the  result 
will;  Contested  Election  of  Locust  Ward,  4 
Pa.  L.  J.  341.     See  3  Cong.  El.  Cas.  564. 

Generally  speaking,  notice  is  essential  to 
the  validity  of  an  election ;  McCrary,  Elect. 
87 ;  and  all  qualified  voters  who  absent 
themselves  from  an  election  duly  called  are 
presumed  to  assent  to  the  expressed  will 
of  the  majority  of  those  voting,  even  though 
only  a  minority  of  those  entitled  to  vote 
really  do  vote;  Walker  v.  Oswald,  08  Md. 
146,  11  Atl.  711 ;  but  formalities  or  even  the 
absence  of  notice  may  be  dispensed  with, 
where  there  has  been  an  actual  election  by 
the  people ;  Dishon  v.  Smith,  10  la.  212.  See 
Seymour  v.  Tacoma,  0  Wash.  427,  33  Pac. 
1059;  Woodward  v.  Sanitary  Dist,  99  Cal. 
554,  34  Pac.  239;  but  it  would  seem  that,  if 
by  a  default  of  notice,  enough  voters  were 
deprived  of  a  chance  to  vote,  to  change  the 
result,  the  election  would  be  void;  McCrary, 
Elect.  SS.  The  fact  that  an  order  providing 
for  an  election  of  the  board  of  education 
was  passed  by  less  than  a  quorum  of  the 
board,  does  not  affect  the  validity  of  the 
election,  where  it  is  held  at  the  time  provid- 
ed by  statute  and  there  is  no  statute  provi- 
sion requiring  the  order  to  be  made;  Acker- 
man  v.  Haenck,  147  111.  514,  35  N.  E.  .".SI.  In 
California,  in  a  much  considered  case,  it 
was  held  that  voters  must  take  notice  of 
general  elections  prescribed  by  law,  and  in 
such  cases  provisions  of  the  laws  as  to  no- 
tice are  merely  directory ;  but  that  in  elec- 
tions to  fill  vacancies,  the  requirements  as  to 
notice  must  be  fully  complied  with;  People 
v.  Weller,  11  Cal.  49,  70  Am.  Dec.  751.  In 
this  case  it  was  further  held  that,  without 
statutory  regulations,  no  election  can  be 
held.  See  also  People  v.  Martin.  12  Cal.  409  ; 
Com.  v.  Smith,  132  Mass.  2S9 ;  City  of  Lafa- 
yette v.  State,  09  Ind.  218 ;  Jones  v.  Gridley, 
20  Kan.  5S4 ;  Bolton  v.  Good,  41  N.  J.  L.  290 ; 


People  v.  Crissey,  !»1   N.  Y.  <".16.     An  election 
to  till  a  vacancy  cannot  be  held  where  such 
vacancy  did  not  occur  long  enough  before  the 
election   to   enable   due   notice  to   be   gl 
Beal  v.   Ray,  17  Ind.   554;    People   v.  Martin, 

12  Cal.  409.  A  failure  to  give  more  than 
three  days'  notice  may  not  be  fatal  to  the 
election,  if  there  was  full  knowledge  thereof 
and  a  full  vote;  State  v.  Carroll,  17  K.  I. 
591,  21  Atl.  835. 

Slight  irregularities  in  the  manner  of  con- 
ducting elections,  if  not  fraudulent,  will  not 
avoid  an  election;  Paine.  Elect.  502.  For  In- 
stance, the  presence  of  one  of  the  candidates 
in  the  room  where  the  election  was  held,  and 
the  fact  that  he  intermeddled  with  tl  • 
lots,  was  held  not  to  vitiate  the  poll,  there 
not  appearing  to  have  been  any  actual  fraud  : 
Bright.  Elect.  Cas.  208.  Irregularities  which 
do  not  tend  to  affect  results,  will  not  defeat 
the  will  of  the  majority ;  Juker  v.  Com.,  20 
l'a.  193.  Where  a  special  election  was  not 
called  by  legal  authority,  the  fact  that  the 
people  voted  for  the  several  candidates,  will 
not  render  the  election  valid ;  People  v 
Palmer,  91  Mich.  2S3,  51  N.  W.  999. 

A  majority  of  voters  is  necessary  to  pass 
a  constitutional  amendment,  by  a  popular 
vote,  but  it  will  be  presumed  that  the  num- 
ber of  those  who  voted  is  the  number  of  the 
qualified  voters;  22  Alb.  L.  J.  147:  see  as  to 
the  latter  point,  St.  Joseph  Township  v.  Rog- 
ers, 10  Wall.  (U.  S.)  044,  21  L  Ed.  328.  But 
there  may  be  a  constitutional  or  statutory 
method  prescribed  for  ascertaining  a  ma- 
jority, in  which  case  the  presumption  stated 
does  not  apply.  Thus,  in  Delaware,  a  major- 
ity to  determine  whether  a  constitutional 
convention  shall  be  called  is  to  be  ascertain- 
ed by  the  highest  vote  cast  at  any  one  of  the 
last  three  preceding  elections;   Const.    1831. 

As  to  whether,  when  the  person  receiving 
the  highest  number  of  votes  is  ineligible, 
the  person  receiving  the  next  highest  num- 
ber of  votes  is  thereby  elected :  In  England 
it  is  held  that  the  second  highest  is  elected 
only  when  it  is  affirmatively  shown  that  the 
voters  for  the  candidate  highest  in  votes  had 
such  actual  knowledge  of  his  ineligibility 
that  they  must  be  taken  to  have  thrown 
away  their  votes  wilfully;  L.  R.  3  Q.  B.  629; 
so  in  People  v.  Clute,  50  N.  Y.  451,  10  Am. 
Rep.  508.  But  in  other  cases  this  distil 
has  not  been  regarded,  and  it  has  been  held 
that  the  election  is  void  ;  Saunders  v.  llaynes. 

13  Cal.  145;  Sublett  v.  Bedwell,  17  Miss.  266, 

12  Am.  Rep.  338;  People  v.  Molitor,  •_::  Mich. 
341  :  State  v.  Bell,  109  Ind.  01.  82   X.   E.  69, 

13  L.  R.  A.  (N.  S.)  1013,  124  Am.  St  Rep. 
203.  The  better  opinion  is  stated  by  Cooley 
(Const.  Lim.)  and  Dillon  (Mun.  Corp.)  to  be 
in  accordance  with  this  'dew.  This  rule  was 
followed  in  Rhode  Island  in  the  presidential 
election  of  1S7G;  In  re  Corliss.  10  Am.  L. 
Reg.  15,  with  a  note  by  Judge  Mitchell.  It 
was  therein  also  held  that  the  ineligibility 
at  the  time  of  election  cannot  be  removed  by 


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a  subsequent  resignation  of  the  office  which 
constituted  the   ineligibility. 

Where  a  candidate  who  receives  the  high- 
est number  of  votes  dies  on  election  day, 
that  candidate  for  the  same  office  who  re- 
ceives the  next  highest  number  of  votes  is 
not  elected ;  State  v.  Speidel,  62  Ohio  St.  156, 
56  X.  E.  871. 

Where  there  is  a  tie  vote  and  one  of  the 
candidates  refuses  to  participate  in  the 
drawing  prescribed  by  statute,  the  office  can- 
not thereby  be  declared  vacant,  and  an  ap- 
pointment to  fill  such  alleged  vacancy  is  in- 
valid;  Com.  v.  Meanor,  167  Pa.  292,  31  Atl. 
552. 

The  legislative  precedents  as  to  the  effect 
of  ineligibility  are  not  uniform.  See  Sublett 
v.  Bedwell.  47  Miss.  266,  12  Am.  Rep.  338; 
People  v.  Clute,  50  N.  Y.  451,  10  Am.  Rep. 
50S. 

An  act  providing  for  the  registration  of 
voters,  either  local  or  general  in  its  opera- 
tion, is  within  the  legislative  power  and  con- 
stitutional ;  Cowan  v.  Prowse,  93  Ky.  156, 
19  S.  W.  407. 

The  election  laws  of  the  United  States  of 
1870  and  1871,  for  supervising  the  election 
of  representatives,  now  repealed,  were  con- 
stitutional ;  Ex  parte  Siebold,  100  U.  S.  371, 
25  L.   Ed.   717. 

A  wager  upon  the  result  of  an  election, 
being  contrary  to  public  policy,  is  void; 
Bunn  y.  Riker,  4  Johns.  (N.  Y.)  426,  4  Am. 
Dec.  292;  Johnston  v.  Russell,  37  Cal.  670; 
Reynolds  v.  McKinney,  4  Kan.  94,  89  Am. 
Dec.  602.  All  contracts  tending  to  corrupt 
elections  are  also  void ;  Nichols  v.  Mudgett, 
32  Vt.  546.  In  Pennsylvania  and  other 
states  one  betting  on  the  result  of  an  elec- 
tion is  disfranchised  as  a  voter  thereat. 

See  Corrupt  Practices. 

Election  Officers.  Canvassing  officers  and 
return  judges  are  miuisterial  officers  only ; 
they  exercise  no  judicial  or  discretionary 
function;  Cooley,  Const.  Lim.  783;  State  v. 
Steers,  44  Mo.  223 ;  Morgan  v.  Quackenbush, 
22  Barb.  (N.  Y.)  72;  Clark  v.  Board  of  Ex- 
aminers of  Hampden  County,  126  Mass.  282. 
It  is  said  they  may  judge  whether  the  re- 
turns are  in  due  form ;  People  v.  Head,  25 
111.  328.  The  acts  of  such  officer,  within 
the  scope  of  his  authority,  are  presumed  to 
be  correct ;  Littell  v.  Robbins,  1  Bartl.  138. 
In  some  states,  canvassing  officers  have  the 
power  to  revise  the  returns,  hear  testimony, 
and  reject  illegal  votes;  it  is  so  in  Texas, 
Alabama,  Louisiana,  and  Florida ;  McCrary, 
Elect.  67.  Where  election  officers  have  en- 
forced an  erroneous  view  as  to  the  qualifica- 
tions of  voters,  whereby  legal  voters  are  not 
permitted  to  vote,  an  election  may  be  set 
aside,  especially  if  it  appear  that  such  votes 
would  have  changed  or  rendered  doubtful 
the  result  of  the  election ;  Bright.  Elect.  Cas. 
455 ;  McCrary,  Elect.  68.  A  canvassing  board 
wbich  has  counted  a  vote  and  declared  the 


result,  is  functus  officio.  It  cannot  make  a 
recount;  Bowen  v.  Hixon,  45  Mo.  340;  llad- 
ley  v.  City  of  Albany,  33  N.  Y.  003,  88  Am. 
Dec.  412;  State  v.  Donnewirth,  21  Ohio  St. 
216. 

It  is  a  general  rale  that  the  errors  of  a 
returning  officer  shall  not  prejudice  the 
rights  of  innocent  voters;  CI.  &  H.  329;  (see 
Behrensmeyer  v.  Kreitz,  135  111.  591,  26  N. 
E.  704;  Ackerman  v.  Haenck,  147  111.  514, 
35  N.  E.  3S1)  ;  as  where  it  was  the  duty  of 
the  officer  to  return  the  votes  sealed  and  he 
returned  them  unsealed,  it  was  held  that  in 
the  absence  of  any  suspicion  of  fraud  the  re- 
turn was  good.  Also  where  a  state  prescrib- 
ed a  certain  form  of  certificate  to  be  execut- 
ed by  the  election  officer,  it  is  sufficient  if 
the  certificate  is  substantially  in  that  form, 
and  if  au  election  officer  insert  by  accident 
the  wrong  name  in  his  return  of  the  persons 
voted  for,  the  mistake  may  be  corrected ;  CI. 
&  H.  Elect.  Cas.  229,  369. 

But  it  has  also  been  held  that  where  a  stat- 
ute requires  the  election  officer  to  place  on 
each  ballot  the  number  corresponding  with 
the  number  of  the  voter,  the  failure  so  to 
number  will  deprive  the  voter  of  his  rights ; 
Ledbetter  v.  Hall,  62  Mo.  422 ;  West  v.  Ross, 
53  Mo.  350.  All  regulations  intended  to  se- 
cure the  purity  of  elections  are  of  vital  im- 
portance and  must  be  enforced  to  the  letter ; 
Jones  v.  State,  1  Kan.  273,  279;  Gilleland  v. 
Schuyler,  9  Kan.  569.  Regulations  which 
affect  the  time  and  place  of  the  election  and 
the  legal  qualifications  of  the  voters  are  usu- 
ally matters  of  substance,  while  those  relat- 
ing to  the  recording  and  return  of  the  votes 
received  and  the  mode  and  manner  of  eon- 
ducting  the  details  of  the  election  are  direc- 
tory. 

A  statute  requiring  an  official  act,  for  pub- 
lic purposes,  to  be  done  by  a  given  day,  is 
directory  only;  People  v.  Allen,  6  Wend.  (N. 
Y.)  486.  A  representative  in  the  legislature 
cannot  be  deprived  of  his  seat  by  the  failure 
of  mere  election  officers  to  make  the  return 
required  by  law  to  the  secretary  of  state; 
see  opinion  of  the  judges  in  Maine;  Me. 
Laws,  1880,  p.  225,  where  many  election  ques- 
tions are  considered  fully.  Mere  irregulari- 
ty on  the  part  of  election  officers,  or  their 
omission  to  observe  some  merely  directory 
provision  of  the  law,  will  not  vitiate  the 
poll;  Anderson  v.  Winfree,  85  Ky.  597,  4  S. 
W.  351,  11  S.  W.  307;  nor  is  an  election  in- 
valid because  the  election  officers  de  facto 
were  disqualified ;  Quinn  v.  Markoe,  37  Minn. 
439,  35  N.  W.  263;  State  v.  Goowin,  69  Tex. 
55,  5  S.  W.  678;  so  also  irregularities  which 
do  not  tend  to  affect  results  are  not  allowed 
to  defeat  the  will  of  the  majority,  which 
must  be  respected,  even  when  irregularly  ex- 
pressed; Lane  v.  Cary,  19  Barb.  (N.  Y.)  540; 
Juker  v.  Com.,  20  Pa.  493;  Morris  v.  Van- 
laningham,  11  Kan.  269;  Ranney  v.  Brooks, 
20  Mo.   107;  People  v.  Bates,  11  Mich.  362, 


ELECTION 


983 


ELECTION 


83  Am.  Dec.  745;  McKinney  v.  O'Connor,  -jo 
Tex.  ."»;  Keller  v.  Chapman,  34  Cul.  635; 
Bright    Elect.  Cas.  448,  449,  450. 

By  the  laws  of  some  states  separate  boxes 
are  kept  at  the  voting  polls  for  the  reception 
of  ballots  for  different  officers,  and  the  ques- 
tion has  arisen  whether  a  ballot  dropped 
into  the  wrong  box  can  be  counted.  There 
is  some  conflict  of  authority  on  this  point, 
but  it  lias  been  held  by  the  supreme  court 
of  Michigan  that  a  voter  cannot  be  deprived 
of  his  vote  by  the  mistake  or  fraud  of  an 
officer  in  depositing  it  in  the  wrong  box,  if 
the  intention  of  a  voter  can  be  ascertained 
with  reasonable  certainty;  and  for  the  Bame 
reason  a  ballot  should  not  be  rejected  be- 
cause put  in  the  wrong  box  by  the  honest 
mistake  of  the  voter  himself;  People  v. 
Bates,  11  Mich.  302,  83  Am.  Dec.  745. 

An  election  officer  who  wilfully  and  cor- 
ruptly refuses  to  any  qualified  citizen  the 
right  to  vote  or  to  register  is  liable  in  dam- 
ages to  the  person  injured  :  Ashby  v.  White, 
1  Sm.  L.  Cas.  (7th  ed.)  455;  2  Ld.  Raym. 
95S;  Bernier  v.  Russell,  80  111.  00.  Equity 
wiU  not  interpose  to  protect  the  right  to  vote, 
it  being  a  mere  political  right ;  Shoemaker 
v.  City  of  Des  Moines,  129  la.  244,  105  N. 
W.  520,  3  L.  R.  A.  (N.  S.)  382.  In  England 
and  in  most  of  the  states  proof  of  a  mali- 
cious or  a  corrupt  purpose  on  the  part  of  the 
officer  is  necessary ;  Weckerly  v.  Geyer,  11 
S.  &  R.  (Pa.)  35;  but  in  Massachusetts  it  is 
not  necessary  to  show  malice,  and  this  rule 
has  been  followed  in  Ohio  and  Wisconsin. 
But  even  in  Massachusetts  the  officer  is  not 
liable  if  he  acted  under  a  mistake  into  which 
he  was  led  by  the  conduct  of  the  plaintiff; 
Lincoln  v.  Ilapgood,  11  Mass.  350;  Gillespie 
v.  Palmer,  20  Wis.  544.  See  Jenkins  v. 
.  Waldron,  11  Johns.  (N.  Y.)  114,  0  Am.  Dec. 
359;  State  v.  Smith,  18  N.  H.  91;  State  v. 
Robb,  17  Ind.  530. 

Exemplary  damages  may  be  recovered  if 
the  refusal  was  wilful,  corrupt,  and  fraudu- 
lent; Elbin  v.  Wilson,  3"  Md.  135.  Equity 
may  upon  the  relation  of  the  Attorney  Gen- 
eral, the  Governor  and  the  state  committee 
chairman,  restrain  by  injunction  election  of- 
ficials from  committing  illegal  and  fraudu- 
lent acts,  though  the  acts  charged,  if  com- 
mitted, constitute  criminal  offences;  People 
v.  Tool,  35  Colo.  225,  80  Pac.  224,  229,  231,  0 
L.  R.  A.    (N.   S.)  S22,   117  Am.  St.  Rep.  198. 

The  jurisdiction  to  hear  and  determine 
election  cases,  though  by  common  law  in 
courts  having  ordinary  common-law  jurisdic- 
tion, is  generally  regulated  by  special  stat- 
utes in  most  of  the  states. 

Where  a  court  can  reach  a  conclusion  as 
to  the  actual  legal  vote  cast  at  a  precinct, 
on  a  contest  of  an  election,  it  can  give  effeel 
to  it  notwithstanding  the  election  officers 
may  have  been  guilty  of  misconduct ;  Lucky 
v.  Police  Jury,  40  La.  Ann.  679,  15  South.  89. 

Ballots.     Voting  by   ballots  is   by   a   ticket 


or  ball  and  secrecy  is  an  essential  part  of 
this  manner  of  voting;  state  v.  Shaw,  9  S. 
C.  '.M;  Brisbin  v.  Cleary,  •_'<;  Minn,  m:,  1  N. 
W.  825;  L  R.  10  C.  P.  t:.:::  therefore  a  stat- 
ute which  provides  for  numbering  ballots  Is 
repugnant  to  a  constitutional  provision  that 
elections  shall  he  by  ballot;  Williams  v.  Stein, 

38  Ind.  89,  10  Am.  Rep.  !»7  ;  contra,  State,  v. 
Connor,  SO  Tex.  133,  23  S.  W.  1103;  People 
v.  Bidelman,  <;:>  Hun  596,  23  X.  Y.  Supp.  954; 
Ex  parte  Owens,  lis  Ala.  402,  12  South.  676, 
8  L.  R.  A.  (X.  S.)  888,  121  An  p.  07: 
unnumbered  ballots  are  not  void  although 
the  on.ission  to  number  them  is  a  misde- 
meanor; Montgomery  v.  Henry,  14  1  Ala.  ''<-'■'. 

39  South.  507,  1  L.  R.  A.  (N.  S.)  656,  0  Ann. 
Cas.  965. 

Ballots  are  frequently  deposited  which  do 
not  clearly  indicate  the  voter's  intention: 
for  instance,  by  misspelling  the  name  of  a 
candidate,  etc.  The  rule  in  such  cases  is 
thus  stated  in  Cooley,  Const.  Lim.  Oil  :  "We 
think  evidence  of  such  facts  as  may  be  call- 
ed the  circumstances  surrounding  the  elec- 
tion,— such  as,  who  were  the  candidates 
brought  forward  by  the  nominating  conven- 
tions; whether  other  persons  of  the  same 
name  resided  in  the  district  from  which  the 
officer  was  to  be  chosen ;  and  if  so.  whether 
they  were  eligible  or  had  been  named  for  the 
office;  if  the  ballot  was  printed  Imperfectly, 
how  it  came  to  be  so  printed,  and  the  like. — 
is  admissible  for  the  purpose  of  showing 
that  an  imperfect  ballot  was  intended  for  a 
particular  candidate,  unless  the  name  is  so 
different  that  to  thus  apply  it  would  be  to 
contradict  the  ballot  itself,  or  unless  the  bal- 
lot is  so  defective  that  it  fails  to  show  any 
intention  whatever,  in  which  case  it  is  Inad- 
missible." See  on  this  point,  Attorney-Gen- 
eral v.  Ely,  4  Wis.  430;  People  v.  Pease.  -~ 
X.  Y.  04,  84  Am.  Dec.  242.  The  case  in  Peo- 
ple v.  Tisdale,  1  Dougl.  (Mich.)  05,  which  is 
contra,  was  overruled  in  People  v.  Cicott,  10 
Mich.  283,  97  Am.  Dec.  141,  and  the  rule 
above  laid  down  by  Judge  Cooley  approved 
and  followed.  Thus  votes  for  "E.  M.  Brax- 
ton," "Elliot  Braxton."  and  "Braxton"  have 
been  counted  for  Elliot  M.  Braxton  in  the 
42d  Congress.  See  McCrary,  Elect.  296. 
Ballots  cast  for  "D.  M.  Carpenter,"  "M.  D. 
Carpenter,"  "M.  I.  Carpenter,"  and  "Carpen- 
ter" were  counted  for  Mathew  II.  Carp 
Attorney-General  v.  Ely,  4  Wis.  430.  Ballots 
for  "Judge  Ferguson"  were  counted  for  Fen- 
ner  Ferguson;  1  BartL'267.  Ballots  cast 
for  "E.  Clark"  and  "Clark"  were  counted  tor 
E.  E.  Clark;  those  cast  for  "W.  E.  R 
"Robertson,"  "Robers,"  and  "Robin — "  were 
counted  for  w.  E.  Robinson.  Where  the  only 
candidates  for  an  office  were  Caleb  Gumm 
and  Joel  D.  Hubbard,  votes  for  "J.  D.  Huba," 
"J.  D.  Iluhba,"  "J.  I).  Hub,"  and  also  one  for 
"Huber,"  and  one  for  "D.  Huber,"  are  prop- 
erly counted  tor  Hubbard;  Gumm  v.  Hub- 
bard,  97   Mo.  311,   11  S.    W.  01,   10  Am.   St. 


ELECTION 


9S4 


ELECTION 


Rep.  312.  See  opinion  of  judges  of  supreme 
court  of  Maine,  printed  in  Maine  Laws,  1880, 
App.  p.  225. 

A  ballot  containing  the  names  of  two  can- 
didates for  the  same  office  is  bad  as  to  both, 
but  is  not  thereby  vitiated  as  to  other  names 
of  candidates  on  the  same  ballot;  Attorney- 
General  v.  Ely,  4  Wis.  420;  State  v.  Fox- 
worthy,  29  Neb.  341,  45  N.  W.  632 ;  where  a 
ballot  contains  the  names  of  three  persons 
for  the  same  office,  and  there  is  only  one  va- 
cancy to  be  filled,  it  should  be  rejected ; 
Montgomery  v.  O'Dell,  67  Hun  169,  22  N.  Y. 
Supp.  412. 

Where  there  are  statutory  provisions  as 
to  the  marking  of  ballots,  the  paper  on 
which  they  are  printed,  etc.,  a  ballot  not 
complying  with  the  law  should  not  be  receiv- 
ed; the  direction  is  mandatory;  Com.  v. 
Woelper,  3  S.  &  R.  (Pa.)  29,  8  Am.  Dec.  628; 
Parvin  v.  Wimberg,  130  Ind.  561,  30  N.  E. 
790,  15  L.  R.  A.  775,  30  Am.  St.  Rep.  254; 
but  see  People  v.  Kilduff,  15  111.  492,  60 
Am.  Dec.  769,  where  the  law  required  white 
paper  without  any  marks,  and  blue-tinted 
paper,  ruled,  was  used,  and  the  ballot  de- 
clared legal ;  and  where  the  law  required 
the  marking  of  the  ballots  with  ink,  if  oth- 
erwise regular  and  marked  with  a  pencil, 
they  were  counted ;  State  v.  Russell,  34  Neb. 
116,  51  N.  W.  465,  15  L.  R.  A.  740,  33  Am. 
St.  Rep.  625.  In  Kirk  v.  Rhoads,  46  Cal.  398, 
the  court  held,  in  this  connection,  that  as  to 
those  things  over  which  the  voter  has  con- 
trol, provisions  as  to  the  appearance  of  bal- 
lots are  mandatory;  and  as  to  those  things 
that  are  not  under  his  control,  such  provi- 
sions are  directory.  Ballots  on  which  a  print- 
ed name  is  erased  and  another  name  written 
in  its  place  are  valid;  People  v.  Saxton,  22 
N.  Y.  309,  78  Am.  Dec.  191 ;  Fenton  v.  Scott, 
17  Or.  189,  20  Pac.  95,  11  Am.  St.  Rep.  S01 ; 
but  see  State  v.  McElroy,  44  La.  Ann.  796, 
11  South.  133,  16  L.  R.  A.  278,  32  Am.  St. 
Rep.  355. 

Where  a  law  provides  that  the  voter  may 
insert  in  the  blank  space  provided  therefor 
any  name  not  already  on  the  ballot,  it  was 
held  that  such  insertion  might  be  made  by 
the  use  of  a  "sticker"  as  well  as  by  writing 
the  name  of  the  candidate ;  De  Walt  v. 
Bartley,  146  Pa.  529,  24  Atl.  185,  15  L.  R.  A. 
771,  28  Am.  St.  Rep.  814. 

The  fact  that  some  of  the  ballots  cast  at 
an  election  were  marked,  and  thereby  ren- 
dered void  by  the  election  law,  does  not  in- 
validate the  ballots  that  were  regular;  Peo- 
ple v.  Bidelman,  69  Hun  596,  23  N.  Y.  Supp. 
954. 

Australian  Ballot.  This  system,  the  lead- 
ing features  of  which  have  now  been  adopt- 
ed in  many  of  the  states,  is  the  first  im- 
portant gift  to  civilization  from  the  conti- 
nent of  Australasia.  It  revives  the  secret 
ballot  in  the  time  of  Cicero,  under  the  Ga- 
binian  Law.     It  originated  in  South  Austra- 


lia soon  after  the  beginning  of  the  present 
century  as  the  result  of  the  efforts  of  Mr. 
Francis  S.  Dutton,  and  thence  passed  from 
state  to  state  in  Australasia,  then  to  the 
mother  country  in  Europe,  afterward  to 
Canada,  and  eastward  to  continental  coun- 
tries, and  finally  westward  again  to  the  Unit- 
ed States.  It  has  been  said  that  a  some- 
what similar  system  had  been  in  vogue  in 
England  in  Maryport  for  many  years  before 
the  modern  system  was  introduced  in  Aus- 
tralasia. But  the  Australasian  system  seems 
to  have  been  purely  indigenous,  and  was  de- 
veloped without  any  copying  or  even  knowl- 
edge of  the  system  at  Maryport 

The  cardinal  features  of  the  system,  as 
everywhere  adopted,  are  an  arrangement  for 
polling  by  which  compulsory  secrecy  of  vot- 
ing is  secured  and  an  official  ballot  printed 
and  distributed  by  government  authority  con- 
taining the  names  of  all  candidates.  The 
details  of  the  system  include  methods  by 
which  candidates  may  be  nominated,  pre- 
scribing the  number  of  persons  necessary  to 
nominate  a  candidate,  forms  in  which  the 
various  party  nominations  and  information 
for  the  voters  shall  be  printed  on  the  ballots, 
arrangements  for  small  closets  or  rooms  into 
which  the  voter  can  retire  and  mark  his  bal- 
lot in  secret,  regulations  for  allowing  him 
to  take  into  the  closet  with  him  when  he  so 
desires  a  person  to  assist  him  in  marking 
his  ballot,  and  regulations  for  the  numbering 
and  counting  of  the  ballots.  See  Wigmore, 
Australian  Ballot  System. 

The  system  now  generally  in  vogue  in  the 
United  States  is  in  most  cases  not  the 
Australian  ballot  pure  and  simple.  One 
feature  of  that  system  is  the  enumeration 
of  candidates  for  a  particular  office  alphabet- 
ically and  without  designation  of  party  name 
or  emblem.  This  was  adopted  in  Massachu- 
setts. But  in  most  states  the  plan,  better 
adapted  for  the  American  states,  is  to  use 
an  official  ballot,  but,  when  many  officers 
are  voted  for  on  a  single  ballot,  to  have  the 
column  of  each  party  indicated  by  name  or 
sign  or  both,  and  permit  the  voter  to  vote 
a  "straight"  ticket  by  a  single  mark  for  all 
officers  voted  for.  This,  in  various  forms, 
may  be  termed  the  American  modification  of 
the  Australian  ballot. 

The  novel  features  of  this  system  of  vot- 
ing have  given  rise  to  much  litigation,  and 
a  considerable  body  of  law  has  already  ac- 
cumulated, which  involves  not  so  much  new 
principles  as  the  application  of  old  ones  to 
new  conditions.  It  is,  nevertheless,  desirable 
to  consider  these  decisions  separately  from 
those  under  the  old  system,  as  thereby  a 
clearer  impression  is  received,  both  of  the 
system  and  the  method  of  its  enforcement, 
which  is  necessarily  committed  very  largely 
to  the  courts,  and,  like  cases  of  railroad  re- 
ceiverships,   devolves    upon    the   courts   the 


ELECTION 


985 


ELECTION 


exercise  of  functions  often  to  some  extent 
administrative  as  well  as  judicial. 

It  may  be  said  without  reserve  that  the 
courts  have,  as  a  rule,  been  true  to  the  fun- 
damental doctrines  of  the  law  of  elections: 
to  give  effect  to  the  intention  of  the  voter, 
where  it  can  be  done  without  defeating  the 
purpose  of  the  Legislation, — to  enforce  party 
rules  with  respect  to  nominations  and  test 
the  integrity  and  fairness  of  those  made  by 
petition, — to  disregard  mere  technical  irregu- 
larities and  hold  valid  elections  carried  on 
in  good  faith  rather  than  to  permit  them  to 
be  defeated  by  the  carelessness,  ignorance, 
or  fraud  of  officials, — to  enforce  rigidly  the 
safeguards  against  bribery  and  intimidation, 
and  the  provisions  to  secure  the  secrecy  of 
the  ballot  which  lie  at  the  foundation  of  the 
system. 

For  an  extended  discussion  of  the  Austra- 
lian ballot  laws  of  England  and  some  of  the 
American  states,  see  Bowers  v.  Smith,  111 
Mo.  !•",  20  S.  \V.  101,  1G  L.  R.  A.  754,  33  Am. 
St.  Rep.  491,  in  which  it  is  held  that  the 
system  should  be  construed  in  subordination 
to  the  constitution  and  laws  of  the  state 
wherein  it  is  adopted. 

Such  laws  have  been  held  constitutional; 
Bowers  v.  Smith,  111  Mo.  45,  20  S.  W.  101, 
16  L.  R.  A.  754,  33  Am.  St.  Rep.  491;  De 
Walt  v.  Bartley,  146  Pa.  529,  24  Atl.  185,  15 
L.  R.  A.  771,  28  Am.  St.  Rep.  814 ;  Attorney- 
General  v.  May,  99  Mich.  538,  58  N.  W.  483, 
25  L.  R.  A.  325;  Ransom  v.  Black,  54  N.  J. 
L.  446,  24  Atl.  489,  1021,  16  L.  R.  A.  769; 
Miner  v.  Olin,  159  Mass.  487,  34  N.  E.  721; 
Slaymaker  v.  Phillips,  5  Wyo.  453,  40  Pac. 
971.  42  Pac.  1049,  47  L.  R.  A.  842;  Pearson 
v.  Board  of  Sup'rs,  91  Va.  322,  21  S.  E.  483. 
The  objections  taken  will  be  found  to  in- 
clude general  ones  and  also  features  of  par- 
ticular statutes.  The  statute  forbidding  the 
counting  of  a  ballot  not  officially  stamped 
and  marked  with  the  initials  of  a  judge  of 
election  is  in  conflict  with  the  constitutional 
provision  that  all  persons  duly  qualified  are 
entitled  to  vote  and  that  all  elections  shall 
be  by  ballot;  Moyer  v.  Van  De  Vanter,  12 
Wash.  St.  377,  41  Pac.  60,  29  L.  R.  A.  670; 
50  Am.  St.  Rep.  900.  In  Illinois  the  new 
ballot  law  was  held  to  have  repealed  all 
other  laws  respecting  voting  on  municipal 
affairs  and  ballots;  Union  County  v.  Ussery, 
147  111.  204,  35  N.  E.  618;  but  it  is  held  to 
apply  only  to  the  election  of  officers  and  not 
to  special  elections  to  determine  other  mat- 
ters, in  Wisconsin;  State  v.  City  of  Janes- 
ville,  90  Wis.  157,  62  N.  W.  933;  and  Penn- 
sylvania; Evans  v.  Willistown  Township.  3 
Pa.  Dist.  Rep.  395.  A  statutory  provision 
that  a  local  option  election  shall  be  conduct- 
ed according  to  the  rules  provided  for  gener- 
al elections  requires  that  it  shall  be  by  bal- 
lot, where  the  constitution  requires  general 
elections  to  be  so  conducted;  State  v.  Board 
of  Canvassers,  78  S.  C.  461,  59  S.  B.  145,  14 
L.  R.  A.   (N.  S.)  850,  13  Ann.  Cas.  1133. 


Questions  as  to  the  regularity  of  nomina- 
tion papers  under  the  Australian  ballot  sys- 
tem are  usually  set  tied  by  the  courts  either 
under  express  statutory  provisions  or  under 
their  general  jurisdiction  when  applicable. 
A  number  of  such  questions  decided  in  ref- 
erence to  the  then  pending  election  are  re- 
ported in  Tillu-ook's  and  Semmen's  Nomina- 
tions, 5  Pa.  Dist.  Rep.  660;  Hendley  v.  Reed- 
er,  5  Pa.  Dist  Rep.  677. 

Where  conflicting  nominations  have  each 
certain  claims  to  superiority,  if  technical 
rules  only  are  applied,  the  court  will  give 
weight  to  the  fact  that  one  candidate  carried 
the  district  by  a  decisive  majority.  The  de- 
sire of  the  court  in  such  cases  is  to  reach 
what  is  substantial ;  Tilbrook's  and  Sem- 
men's Nominations,  5  Pa.  Dist.  Rep.  660.  If. 
under  the  rules  of  the  party,  the  county 
committee  has  power  to  All  vacancies  and 
did  not  act,  but  only  certain  members  of  it 
residing  within  the  representative  district, 
such  action  is  a  clear  violation  of  the  party 
rules  and  the  nomination  by  such  Irregular 
body  is  void ;  Stucker's  Nomination,  5  Pa. 
Dist.  Rep.  660.  Where  congressional  con- 
ferees from  one  county  of  a  congressiun.\l 
district  were  appointed  in  violation  of  the 
party  rules,  the  conference  in  which  they 
took  part  was  not  a  regular  body,  and  the 
nomination  made  by  it  was  void ;  Klugh's 
Nomination,  5  Pa.  Dist,  Rep.  661.  Nomina- 
tions attended  by  fraud  and  the  exercise  of 
arbitrary  power  will  not  be  upheld  by  the 
courts.  A  minority  of  delegates  cannot  nom- 
inate, and  a  faction  may  not  arbitrarily  se- 
lect their  meeting-place  in  defiance  of  a  clear 
majority  of  the  ward  executive  committee ; 
Saunders'  and  Roberts'  Nominations.  5  Pa. 
Dist.  Rep.  661.  Where  persons  who  are  not 
delegates  are  permitted  upon  the  floor  of  a 
convention  and  the  evidence  justilies  the  con- 
clusion that  their  presence  was  not  harmless, 
the  nomination  is  invalid ;  Boger's  and 
Sterr's,  Laubach's  and  Hessler's  Nomina- 
tions, 5  Pa.  Dist  Rep.  662.  A  nomination 
paper  which  attempts  to  name  presidential 
electors,  representatives  at  large  in  congress, 
and  other  state  officers,  as  well  as  candi- 
dates for  separate  congressional,  senatorial. 
and  representative  districts,  by  a  single  pa- 
per is  bad;  Crow  Ami  Combine  Party  Nomi- 
nation Paper,  5  Pa.  Dist.  Rep.  665.  A  court 
will,  not.  however,  in  the  exercise  of  its  equi- 
table powers,  enjoin  the  printing  of  a  certain 
column  on  the  official  I. allot  on  a  mere  allega- 
tion that  the  nomination  papers  are 
tive.  false,  and  fraudulent.  Proof  of  such 
allegation  must  be  made  before  the  con  it 
will  find  it  so  as  a  fact  ;  Hendley  v.  Reeder, 
5  Pa.  Dist.  Rep.  677.  Where  an  adequate 
remedy  exists  and  a  sufficient  opportunity 
has  l  een  given  to  present  to  the  court  ob- 
jections to  a  nomination  paper,  the  court  will 
not  intervene  by  injunction  in  relief  of  a 
complainant  who  has  failed  to  avail  himself 


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986 


ELECTION 


of  such  a  remedy ;  Cassin  v.  Reeder,  5  Pa. 
Dist.  Rep.  G81. 

Whenever  an  official  ballot  is  provided  for 
by  statute»the  secretary  of  state  will  not  de- 
cide which  of  two  rival  conventions  of  the 
same  organization  is  the  regular  one,  but  all 
such  nominations  should  be  certified  and 
left  to  the  voters  for  their  decision ;  State 
v.  Allen,  43  Neb.  651,  62  N.  W.  35 ;  People  v. 
District  Court,  IS  Colo.  26,  31  Pac.  339; 
Shields  v.  Jacob,  88  Mich.  101,  50  N.  W.  105, 
13  L.  R.  A.  700 ;  Matter  of  Redmond,  5  Misc. 
309.  25  N.  Y.  Supp.  381 ;  nominations  by  a 
bolting  convention  are  invalid ;  In  re  Nomi- 
nation of  Gibbons,  5  Pa.  Dist.  Rep.  194 ;  in 
case  of  a  tie  vote  in  a  nominating  convention 
neither  the  candidates  nor  the  election  offi- 
cers can  determine  the  result  by  lot;  Beck 
v.  Board  of  Election  Com'rs,  103  Mich.  192, 
61  N.  W.  346.  Where  the  People's  Independ- 
ent party  had  been  generally  known  as  the 
"Populist  Party,"  that  name  could  not  be 
adopted  by  a  new  political  organization ; 
Porter  v.  Flick,  60  Neb.  773,  84  N.  W.  262. 

The  offence  of  falsely  making  or  signing 
a  nomination  certificate  must  be  charged  in 
the  words  of  the  statute,  being  unknown  at 
common  law,  and  the  want  of  criminal  in- 
tent is  no  defence,  and  the  voter  must  sign 
in  person,  or  be  present,  and  request  it  to  be 
done;  Com.  v.  Connelly,  163  Mass.  539,  40 
N.   E.  862. 

As  to  defects  in  statement  of  names  of 
candidates  in  nomination  papers,  see  L.  R. 
1  C.  P.  Div.  596;  L.  R.  15  Q.  B.  Div.  273; 
12  id.  257 ;  they  are  not  invalidated  by  or- 
dinary abbreviations  of  names;  10  N.  S. 
Wales  L.  R.  59. 

Provisions  as  to  filling  vacancies  are  not 
always  mandatory,  and  after  a  fair  election, 
an  irregularity  will  not  be  permitted  to  in- 
validate it;  Stackpole  v.  Hallahan,  16  Mont. 
40,  40  Pac.  80,  28  L.  R.  A.  502. 

For  the  form  of  ballots  prescribed  in  a 
number  of  states,  see  Talcott  v.  Philbrick, 
59  Conn.  472,  20  Atl.  436,  10  L.  R.  A.  150. 
For  inserting  names  under  the  Australian 
ballot  law  in  the  official  ballot,  not  legally 
entitled  to  insertion,  see  Bowers  v.  Smith, 
35  Cent.  L.  J.  305. 

Courts  will  not  interfere  with  the  discre- 
tion of  the  officer  charged  with  the  prepa- 
ration of  the  official  ballot,  as  to  details; 
Woods  v.    State,  44  Neb.  430,   63  N.  W.  23. 

Prohibiting  the  printing  of  the  name  of 
a  candidate  in  more  than  one  column  is  con- 
stitutional ;  Todd  v.  Election  Com'rs,  104 
Mich.  474,  480,  62  N.  W.  564,  64  N.  W.  496, 
29  L.  R.  A.  330 ;  but  where  the  act  provides 
that  names  shall  be  groiiped  by  parties,  a 
candidate  named  by  more  than  one  party  is 
entitled  to  have  his  name  appear  in  the  col- 
umn of  each ;  Williams  v.  Dalrymple,  132 
Mo.  62,  33  S.  W.  447 ;  contra,  Sawin  v.  Pease, 
6  Wyo.  91,  42  Pac.  750. 

A  construction  which  makes  the  error  of 
a  single  official  disfranchise  large  bodies  of 


voters  must  be  avoided  if  the  language  is 
susceptible  of  any  other;  Bowers  v.  Smith, 
111  Mo.  45,  20  S.  W.  101,  16  L.  R.  A.  754,  33 
Am.  St.  Rep.  491;  and  where,  by  the  negli- 
gence of  the  officer,  the  name  of  a  candidate 
and  of  the  office  is  omitted  from  the  ballot, 
the  voter  may  write  them,  and  his  vote  will 
be  valid ;  People  v.  President,  etc.,  of  Wap- 
pingers  Falls,  144  N.  Y.  616,  39  N.  E.  641. 
The  provision  requiring  the  voter  to  make 
a  cross  with  a  stamp  opposite  each  name  vot- 
ed for  is  mandatory ;  Lay  v.  Parsons,  104  Cal. 
661,  38  Pac.  447 ;  Sego  v.  Stoddard,  136  Ind. 
297,  36  N.  E.  204,  22  L.  R.  A.  468 ;  Curran  v. 
Clayton,  S6  Me.  42,  29  Atl.  930 ;  Parvin  v.  Wim- 
berg,  130  Ind.  561,  30  N.  E.  790,  15  L.  R.  A. 
775,  30  Am.  St.  Rep.  254 ;  but  in  other  states 
the  courts  are  disposed  to  be  more  liberal 
and  permit  marking  outside  of  the  square 
if  to  the  right  of  the  name ;  In  re  Vote 
Marks,  17  R.  I.  812,  21  Atl.  962 ;  Weidknecht 
v.  Hawk,  13  Pa.  Co.  Ct.  41;  Contested  Elec- 
tion for  Mayor  of  City  of  York,  13  Pa.  Co. 
Ct.  205 ;  Tebbe  v.  Smith,  108  Cal.  101,  41  Pac. 
454,  29  L.  R.  A.  673,  49  Am.  St.  Rep.  68; 
Lynip  v.  Buckner,  22  Nev.  426,  41  Pac. 
702,  30  L.  R.  A.  354;  Vallier  v.  Brakke,  7 
S.  D.  343,  64  N.  W.  180,  186;  Parker  v. 
Orr,  158  111.  609,  41  N.  E.  1002,  30  L.  R. 
A.  227;  Houston  v.  Steele,  98  Ky.  596,  34 
S.  W.  6  (in  which  cases  the  subject  of 
marks  is  fully  considered).  A  provision 
for  marking  with  ink  is  directory  only, 
and  pencil  will  answer;  State  v.  Russell, 
34  Neb.  116,  51  N.  W.  465,  15  L.  R.  A.  740, 
33  Am.  St.  Rep.  625 ;  a  blanket  paster  is  not 
legal  in  Pennsylvania,  but  a  single  sticker 
may  be  used ;  Little  Beaver  Tp.  School  Di- 
rectors' Election,  165  Pa.  233,  30  Atl.  955, 
27  L.  R.  A.  234.  As  to  what  distinguishing 
marks  on  ballots  will  vitiate  them  see  Par- 
ker v.  Orr,  158  111.  609,  41  N.  E.  1002,  30  L. 
R.  A.  227;  Zeis  v.  Passwater,  142  Ind.  375, 
41  N.  E.  796 ;  Rutledge  v.  Crawford,  91  Cal. 
526,  27  Pac.  779,  13  L.  R.  A.  761,  25  Am. 
St.  Rep.  212 ;  People  v.  Board  of  County  Can- 
vassers, 129  N.  Y.  395,  29  N.  E.  327,  14  L. 
R.  A.  624;  Hanscom  v.  State,  10  Tex.  Civ. 
App.  638,  31  S.  W.  547  ;  and  where  by  mistake 
"spoiled  ballots"  were  counted  the  result  was 
not  thereby  ascertained  and  the  returns  of  the 
county  clerk  were  prima  facie  evidence 
which  should  be  considered  by  the  court; 
Hendee  v.  Hayden,  42  Neb.  760,  60  N.  W. 
1034 ;  voters  are  not  confined  to  the  names 
on  the  official  ballot  but  may  write  other 
names  thereon ;  Sanner  v.  Patton,  155  111. 
553,  40  N.  E.  290;  signing  a  ballot  invali- 
dates it;  Parker  v.  Orr,  158  111.  609,  41  N.  E. 
1002,  30  L.  R.  A.  227.  The  failure  of  a  vot- 
er to  retire  to  the  booth  to  mark  the  ballot 
does  not  make  the  marking  illegal  if  not 
wilful;  Hall  v.  Schoenecke,  128  Mo.  661,  31 
S.  W.  97.  In  Michigan  the  supreme  court 
have  with  much  detail  considered  this  sub- 
ject and  enumerate  seven  methods  of  mark- 
ing which  are  defective  by  reason  of  their 


ELECTION 


987 


ELECTION 


being  in  effect  distinguishing  marks;  Attor- 
ney-General v.  Glaser,  102  Mich.  390,  63  N. 
W.  648,  64  N.  W.  828. 

The  provision  that  an  officer  or  person 
designated  by  law  may  assist  a  voter  physi- 
cally or  educationally  unable  to  vote  should 
be  liberally  construed;  Pearson  v.  Board  of 
Supervisors,  91  Va.  322,  21  S.  E.  483;  the 
voter  is  the  sole  judge  of  his  disability; 
Beaver  County  Elections,  12  Pa.  Co.  Ct.  227 ; 
contra,  under  the  same  statute;  Election  In- 
structions, 2  Pa.  Dist.  Rep.  1;  the  disability 
must  be  one  contemplated  by  the  statute  and 
not  drunkenness  or  ignorance;  id.;  nor  that 
he  left  his  glasses  at  home;  State  v.  Gay, 
59  Minn.  6,  60  N.  W.  676,  50  Am.  St.  Rep. 
389;  a  ballot  is  good  if  the  voter  asks  as- 
sistance though  he  can  read;  Montgomery  v. 
Oldham,  143  Ind.  34,  42  N.  10.  474  ;  where  the 
voter  is  required  to  make  oath,  this  is  man- 
datory, and  failure  to  take  it  invalidates 
the  vote;  Attorney-General  v.  May,  99  Mich. 
538,  58  N.  W.  483,  25  L.  R.  A.  325;  but  if  no 
form  of  oath  is  prescribed  any  sufficient 
form  of  words  will  suffice;  State  v.  Gay,  59 
Minn.  6,  60  N.  W.  676,  50  Am.  St.  Rep.  389 ; 
if  the  statute  does  not  restrict  the  voter's 
choice  of  an  assistant  the  election  officers 
cannot  do  so;  Beaver  County  Elections,  12 
Pa.  Co.  Ct.  227;  but  when  the  statute  desig- 
nates a  particular  officer,  it  is  mandatory; 
Pearson  v.  Board  of  Supervisors,  91  Va.  322, 
21  S.  E.  483;  and  irregulai-ities  in  the  serv- 
ices of  the  voter's  assistant,  as  having  one 
where  two  were  required,  or  if  the  assistant 
had  received  money  from  a  candidate,  will 
not  invalidate  the  vote;  Hanscom  v.  State, 
10  Tex.  Civ.  App.  638,  31  S.  W.  547 ;  if  the 
assistant  prepares  a  ballot  contrary  to  the 
direction  of  the  voter,  if  fraudulently  done, 
it  will  avoid  the  vote,  but  if  it  does  not  ap- 
pear whether  it  was  fraud  of  the  assistant 
or  mistake  of  the  voter  it  will  not  be  reject- 
ed; id. 

When  an  interpreter  was  permitted  by 
law  but  not  asked  for,  the  presence  of  one 
inside  the  railing,  conversing  with  voters 
was  held  to  vitiate  the  election;  Attorney- 
General  v.  Stillson,  108  Mich.  419,  00  N.  W. 
383. 

Irregularities  in  taking  the  ballot  must 
be  gross  to  defeat  the  election ;  L.  R.  16  Q. 
B.  Div.  739;  7  Can.  S.  C.  247.  When  the 
statute  declares  a  certain  irregularity  fatal 
courts  will  give  effect  to  it,  otherwise  they 
will  ignore  such  innocent  irregularities  as 
are  free  from  fraud  and  have  not  interfered 
with  a  fair  expression  of  the  voter's  will; 
Bowers  v.  Smith,  111  Mo.  45,  20  S.  W.  101, 
16  L.  R.  A.  754,  33  Am.  St.  Rep.  491. 

Irregularities  which  have  been  held  harm- 
less, are :  Where  there  were  two  voting  plac- 
es in  a  precinct  entitled  to  one;  Wildman  v. 
Anderson,  17  Kan.  347;  Bowers  v.  Smith.  Ill 
Mo.  45,  20  S.  W.  101,  16  L.  R.  A.  754,  33  Am. 
St.  Rep.  491 ;  where  ballots  were  received  by 
officers  near  a  house  appointed  whose  owner 


refused  to  permit  its  use ;  Preston  v.  Cul- 
bertson,  58  CaL  198;  errors  or  Irregularities 
in  printing;  Allen  v.  Glynn,  17  Col 
Pac.  670,  15  L.  R.  A.  743,  31  Am.  St.  Rep. 
304;  Miller  v.  Pennoyer,  23  Or.  364,  33  Pac 
830;  ballots  improperly  prepared  by  the  offi- 
cers and  not  "marked"  ballots  may  be 
counted;  People  v.  Wood,  148  X.  Y.  142,  42 
N.  B.  536. 

When  candidates  and  voters  have  partici- 
pated in  an  election  and  acquiesced  in  the 
result  failure  to  give  notice  may  be  disre- 
garded; Adsit  v.  Board  of  State  Canva 
84  Mi.h.  42(),  48  N.  W.  31,  11  L.  R.  A.  534; 
and  other  irregularities  may  be  so  far  ac- 
quiesced in  by  the  defeated  candidate  that 
he  will  he  disqualified  to  complain;  L.  R.  1 
Q.  B.  433;  Allen  v.  Glynn,  17  Colo.  338,  29 
Pac.  G70,  15  L.  R.  A.  743,  31  Am.  St.  Rep. 
304. 

Contested  Elections.  At  common  law  the 
right  to  an  office  was  tried  by  a  writ  of  quo 
warranto;  in  modern  practice,  an  informa- 
tion in  the  nature  of  quo  warranto  is  usual 
in  the  absence  of  a  statute;  McCrary,  Elect. 
190.  See  3  Bla.  Com.  2G3 ;  2  Jurist  N.  S.  114. 
An  act  for  trying  contested  elections  without 
a  jury  is  not  unconstitutional:  Ewing  v.  Fil- 
ley,  43  Pa.  389.  An  act  providing  for  the 
appointment  of  an  election  commission  with 
power  over  contests,  by  the  legislature,  is  an 
invasion  of  the  executive  power  and  uncon- 
stitutional;   Pratt   v.    Breckinridge,   112   Ky. 

I,  65  S.  W.  130,  00  S.  W.  405.  As  to  whether 
the  declarations  not  under  oath  of  illegal 
voters  is  evidence  as  to  the  votes  cast  by 
them,  is  doubtful,  see  State  v.  Olin,  23  Wis. 
319;  1  Bartl.  19,  230;  Gilleland  v.  Schuyler, 
9  Kan.  509 ;  People  v.  Pease,  27  N.  Y.  45,  84 
Am.  Dec.  242.  The  ordinary  rules  of  evi- 
dence apply  to  election  cases;  McCrary, 
Elect.  231 ;  Paine,  Elect.  S24.  A  legal  voter 
may  refuse  to  testify  for  whom  he  voted, 
but  he  may  waive  this  privilege;  K.ieass' 
Case,  2  Pars.  (Pa.)  5S0.  It  is  competent  for 
witnesses  to  testify  that  they  were  under 
age  at  the  time  of  voting,  and  that  their 
votes  were  cast  for  the  candidate  receiving 
the  largest  number;  Crabb  v.  Orth,  133  Ind. 

II,  32  N.  E.  711.  A  voter  who  participates 
in  an  election  which  is  not  secret,  although 
required  by  statute  to  be  by  ballot,  does  not 
waive  his  right  to  contest  the  result,  as  BUCh 
waiver  would  he  contrary  to  public  policy; 
State  v.  Board  of  Canvassers,  78  S.  C.  461, 
59  S.  E.  145,  14  L.  R.  A.  (N.  S.)  850,  13  Ann. 
Cas.   1133. 

In  all  contested  elections,  the  tribunal  will 
look  beyond  the  certificate  of  the  returning 
hoard;  People  v.  Vail.  20  Wend.  (N.  Y.)  12. 
State  v.  Townsley,  r><">  Mo.   107. 

In  purging  the  poll  of  illegal  votes,  unless 
it  be  shown  for  whom  the  illegal  votes  were 
east,  they  will  be  deducted  from  the  total 
vote:  In  re  Contested  Elections  of  1868,  2 
Brewst    (Pa.)    128. 

Where  the  laws  have  been  entirely  disre-. 


ELECTION 


9S8 


ELECTION  OF  RIGHTS 


garded  by  the  election  officers  and  the  re- 
turns are  utterly  unworthy  of  credit,  the 
entire  poll  will  be  thrown  out,  but  legal 
votes,  having  been  properly  proved,  may  be 
counted;  Bright.  Elect  Cas.  493.  "Nothing 
short  of  the  impossibility  of  determining  for 
whom  the  majority  of  votes  were  given 
ought  to  vacate  an  election;"  CI.  &  H.  504. 

Where  another  than  the  person  returned 
as  elected  is  found  to  have  received  the 
highest  number  of  legal  votes  given,  he  is 
entitled  to  the  office;  Varney  v.  Justice,  86 
Ky.  596,  6  S.  W.  457. 

Primary  Elections.  After  an  election,  the 
right  of  successful  candidates  to  their  offices 
is  not  affected  by  the  unconstitutionality  of 
the  primary  act  under  which  they  were 
nominated;  People  v.  Strassheim,  240  111. 
279,  88  N.  E.  821,  22  L.  R.  A.  (N.  S.)  1135; 
such  an  act  may  not  curtail,  subvert  or  add 
to  the  constitutional  qualifications  of  voters ; 
id.  Primary  elections  may  be  provided  by 
statute  for  political  parties  which  cast  at 
least  10  per  cent,  of  the  vote  at  the  last  gen- 
eral election,  and  such  statute  does  not  de- 
prive any  person  of  the  equal  protection  of 
the  laws;  State  v.  Felton,  77  Ohio  St.  554, 
84  N.  E.  85,  12  Ann.  Cas.  65.  They  are  not 
within  the  meaning  of  a  statute  permitting 
the  use  of  voting  machines  at  all  state,  etc., 
elections,  Line  v.  Board  of  Election  Canvass- 
ers, 154  Mich.  329,  117  N.  W.  730,  18  L.  R. 
A.   (N.  S.)  412,  16  Ann.  Cas.  248. 

A  law  requiring  the  payment  of  a  fee  as  a 
condition  precedent  to  having  a  candidate's 
name  printed  on  the  official  primary  election 
ballot,  except  as  may  be  reasonable  for  the 
services  of  an  auditor  for  filing  petition,  is 
unconstitutional ;  Johnson  v.  Grand  Forks 
County,  16  N.  D.  363,  113  N.  W.  1071,  125 
Am.  St.  Rep.  662. 

In  1868,  jurisdiction  over  contested  elections 
to  the  House  of  Commons  was  transferred 
to  the  Court  of  Common  Pleas  and  is  now 
vested  in  the  High  Court  of  Justice,  the  cas- 
es being  heard  by  two  judges.  Their  deci- 
sion is  certified  to  the  Speaker  of  the  House. 

See  Ballot;  Eligibility;  Majority;  Vot- 
er; Voting  Machine. 

ELECTION    OF   RIGHTS   OR    REMEDIES. 

The  obligation  imposed  upon  a  party  to 
choose  between  two  inconsistent  or  alterna- 
tive rights  or  claims,  in  cases  where  there 
is  clear  intention  of  the  person  from  whom 
he  derives  one  that  he  should  not  enjoy  both. 
2  Sto.  Eq.  Jur.  §  1075. 

A  choice  shown  by  an  overt  act  between 
two  inconsistent  rights,  either  of  which  may 
be  asserted  at  the  will  of  the  chooser  alone. 
Bierce  v.  Hutchins,  205  U.  S.  346,  27  Sup.  Ct. 
524,  51  L.  Ed.  828. 

Etymologically,  election  denotes  choice,  selection 
vut  of  the  number  of  those  choosing.  Thus,  the 
election  of  a  governor  would  be  the  choice  of  some 
individual  from  the  body  of  the  electors  to  perform 
the  duties  of  governor.  In  common  use,  however, 
it  has  come  to  denote  such  a  selection  made  by  a 


distinctly  denned  body — as  a  board  of  aldermen,  a 
corporation,  or  state — conducted  in  such  a  manner 
that  each  individual  of  the  body  choosing  shall 
have  an  equal  voice  in  the  choice,  but  without 
regard  to  the  question  whether  the  person  to  be 
chosen  is  a  member  of  the  body  or  not.  The  word 
occurs  in  law  frequently  in  such  a  sense,  especially 
in  governmental  law  and  the  law  of  corporations. 
But  the  term  has  also  acquired  a  more  technical 
signification,  in  which  it  is  oftener  used  as  a  legal 
term,  which  is  substantially  the  choice  of  one  of  two 
rights  or  things,  to  each  one  of  which  the  party 
choosing  has  equal  right,  but  both  of  which  he  can- 
not have.  This  option  occurs  in  fewer  instances  at 
law  than  in  equity,  and  is  in  the  former  branch, 
in  general,  a  question  of  practice. 

At  Law.  In  contracts,  when  a  debtor  is 
obliged  in  an  alternative  obligation  to  do  one 
of  two  things,  as  to  pay  one  hundred  dol- 
lars or  deliver  one  hundred  bushels  of  wheat, 
he  has  the  choice  to  do  one  or  the  other  until 
the  time  of  payment;  he  has  not  the  choice, 
however,  to  pay  a  part  in  each.  Pothier, 
Obi.  part  2,  c.  3,  art.  6,  no.  247;  Smith  v.- 
Sanborn,  11  Johns.  (N.  Y.)  59.  Or,  if  a 
man  sell  or  agree  to  deliver  one  of  two  ar- 
ticles, as  a  horse  or  an  ox,  he  has  the  elec- 
tion till  the  time  of  delivery, — it  being  a 
rule  that,  "in  case  an  election  be  given  of 
two  several  things,  always  he  which  is  the 
first  agent,  and  which  ought  to  do  the  first 
act,  shall  have  the  election  ;  "  Co.  Litt.  145  a; 
McNitt  v.  Clark,  7  Johns.  (N.  Y.)  465 ;  Flem- 
ing v.  Harrison's  Devisees,  2  Bibb  (Ky.)  171, 
4  Am.  Dec.  691.  On  the  failure  of  the  per- 
son who  has  the  right  to  make  his  election 
in  proper  time,  the  right  passes  to  the  op- 
posite party;  Co.  Litt.  145  o;  Reid  v.  Smith, 
1  Des.  Ch.  (S.  C.)  460;  Overbach  v.  Heer- 
mance,  Hopk.  Ch.  (N.  Y.)  337,  14  Am.  Dec. 
546;  Waggoner  v.  Cox,  40  Ohio  St.  539;  Cor- 
bin  v.  Fairbanks  Co.,  56  Vt.  538;  Husson  v. 
Oppenheimer,  66  How.  Pr.  (N.  Y.)  306;  Mar- 
lor  v.  R.  Co.,  21  Fed.  383. 

When  one  party  renounces  a  contract  the 
other  party  may  elect  to  rescind  at  once,  ex- 
cept so  far  as  to  sue  upon  it  and  recover  for 
the  breach,  and  he  may  immediately  bring 
an  action,  without  waiting  for  the  time  of 
performance  to  arrive  or  elapse  (in  such 
case  he  cannot  treat  the  contract  as  subsist- 
ing for  any  other  purpose) ;  L.  R.  7  Exch. 
114;  L.  R.  16  Q.  B.  460;  Hocking  v.  Ham- 
ilton, 158  Pa.  107,  27  Atl.  836 ;  Lovell  v.  Ins. 
Co.,  Ill  U.  S.  264,  4  Sup.  Ct.  390,  28  L.  Ed. 
423;  Dingley  v.  Oler,  11  Fed.  372;  contra, 
as  to  a  contract  for  the  sale  of  land,  Daniels 
v.  Newton,  114  Mass.  530,  19  Am.  Rep.  384. 
See  the  cases  collected,  Ans.  Cont.  (8th  ed.) 
355,  n.  1.  It  is  a  maxim  of  law  that,  an  elec- 
tion once  made  and  pleaded,  the  party  is 
concluded ;  electio  semel  facta  et  placitum 
testatum  non  patitur  regressum;  Co.  Litt. 
146;  Lawrence  v.  Ins.  Co.,  11  Johns.  (N.  Y.) 
241. 

But  an  action  for  enforcing  the  benefits 
due  under  a  contract  conveying  property  in 
consideration  of  support  does  not  preclude 
an  action  to  rescind  on  subsequent  breaches ; 


ELECTION  OF  RIGHTS 


989 


ELECTION  OF  RIGHTS 


Gall  v.  Gall,  120  Wis.  390,  105  N.  W.  953,  5 
L.  R.  A.   (N.  S.)  603. 

In  many  cases  of  voidable  contracts  there 
is  a  right  of  election  to  affirm  or  disavow 
them,  after  the  termination  of  the  disabili- 
ty, the  existence  of  which  makes  this  con- 
tract voidable.  So  all  contracts  of  an  in- 
fant, except  for  necessaries,  may  be  avoided 
by  him  within  a  reasonable  time  after  he 
comes  of  age,  but  they  are  voidable  only, 
and  he  must  elect  not  to  be  bound  by  them ; 
Heath  v.  Stevens,  48  N.  H.  251;  Philpot  v. 
Mfg.  Co.,  18  Neb.  54,  24  N.  W.  428.  See  Sims 
v.  Everhardt,  102  U.  S.  300,  26  L.  Ed.  87. 
And  bringing  suit  is  an  election  to  rescind; 
Eaton  v.  Hill,  50  N.  H.  235,  9  Am.  Rep.  1S9; 
Pakas  v.  Racy,  13  Daly  (N.  Y.)  227.  See  In- 
fant. 

Whenever,  by  law  or  contract,  a  party 
has  laid  before  him  a  variety  of  steps,  the 
taking  of  one  of  which  excludes  another,  or 
the  rest,  he  must  choose  between  them.  Aft- 
er his  choice  is  made,  and  by  words  or  acts 
expressed  in  a  manner  suited  to  the  particu- 
lar case,  he  cannot  reverse  it;  he  is  said  to 
have  elected  the  one  step,  and  waived  the 
other;  Bish.  Cont.  §  808. 

Other  cases  in  law  arise :  as  in  case  of  a 
person  holding  land  by  two  inconsistent  ti- 
tles ;  1  Jenk.  Cent  Cas.  27 ;  dower  in  a  piece 
of  land  and  that  piece  for  which  it  was  ex- 
changed;  3  Leon  271.     See  Sugd.  Pow.  498. 

In  Equity.  A  choice  which  a  party  is  com- 
pelled to  make  between  the  acceptance  of  a 
benefit  under  a  written  instrument,  and  the 
retention  of  some  property  already  his  own, 
which  is  attempted  to  be  disposed  of,  in  fa- 
vor of  a  third  party,  by  virtue  of  the  same 
paper.  The  doctrine  of  election  pre-supposes 
a  plurality  of  gifts  or  rights,  with  an  inten- 
tion, express  or  implied,  of  the  party  who 
has  a  right  to  control  one  or  both,  that  one 
should  be  a  substitute  for  the  other;  1 
Swanst.  394 ;  3  Woodd.  Lect.  491 ;  2  Rop.  Leg. 
480;   Snell,  Pr.  Eq.  237. 

The  doctrine  of  election  rests  upon  the 
principle  that  he  who  seeks  equity  must  do 
equity,  and  means,  as  the  term  is  ordinarily 
used,  that  where  two  inconsistent  or  alter- 
native rights  or  claims  are  presented  to  the 
choice  of  a  party,  by  a  person  who  manifests 
the  clear  intention  that  he  should  not  enjoy 
both,  then  he  must  accept  or  reject  one  or 
the  other;  and  so,  in  other  words,  that  one 
cannot  take  a  benefit  under  an  instrument 
and  then  repudiate  it;  Peters  v.  Bain,  133 
U.  S.  695,  10  Sup.  Ct.  354,  33  L.  Ed.  696. 

Where  an  express  and  positive  election  is 
required,  there  is  no  claim,  either  at  law  or 
in  equity,  to  but  one  of  the  objects  between 
which  election  is  to  be  made ;  but  in  many 
cases  there  is  apparent,  from  the  whole  of 
an  instrument,  the  intention  that  the  party 
to  be  benefited  shall  be  benefited  on  certain 
conditions.  In  such  cases,  equity  will  re- 
quire the  party  to  elect;  Bisph.  Eq.  sec.  295. 


Where  a  testator  gives  money  or  land  to 
A,  and  by  the  same  will  gives  something  of 
A's  to  B,  A  must  elect  either  to  give  effect 
to  the  will  by  allowing  1'.  to  have  the  prop- 
erty which  the  testator  intended  should  go 
to  him,  or  if  ho  chooses  i"  disregard  the  will 
and  retain  his  own  property,  he  must  make 
g 1  the  value  of  the  gift  to  the  disappoint- 
ed beneficiary;  Bisph.  Eq.  sec.  295.  This 
doctrine  is  principally  applied  to  cases  of 
wills;  but  it  is  applicable  also  to  voluntary 
deeds,  to  contracts  for  value  resting  upon 
articles,  and  to  contracts  completely  execut- 
ed by  conveyance  and  assignment.  This  is 
a  case  of  implied  election.  An  express  elec- 
tion is  where  a  condition  is  annexed  to  a 
gift,  a  compliance  with  which  is  distinctly 
made  one  of  the  terms  by  which  alone  the 
gift  can  be  enjoyed.  In  a  case  of  express 
condition  the  result  of  a  non-compliance  is 
a  forfeiture ;  whereas  in  elections  growing 
out  of  an  implied  duty,  the  person  who  de- 
clines to  make  good  the  gift  does  not  abso- 
lutely lose  the  benefit  which  is  bestowed  up- 
on him,  but  is  compelled  only  to  give  up  so 
much  of  it  as  will  amount  to  compensation 
for  the  disappointed  beneficiary ;  Bisph.  Eq. 
sec.  296. 

Where  a  testator  purports  to  give  property 
to  A  which  in  fact  belongs  to  B,  and  at  the 
same  time  out  of  his  own  property  confers 
benefits  on  B,  the  literal  construction  and 
application  of  the  will  would  allow  B  to 
keep  his  property  to  the  disappointment  of 
A  and  also  to  take  the  benefits  given  him 
by  the  will.  In  such  circumstances,  however, 
B  is  not  allowed  to  take  the  full  benefit  giv- 
en him  by  the  will  unless  he  is  prepared  to 
carry  into  effect  the  whole  of  the  testator's 
dispositions;  1  Swan.  359,  394.  If  he  elects 
to  take  under  the  will,  he  is  bound  and  may 
be  ordered  to  convey  his  own  property  to  A ; 
1  Ves.  514 ;  1  Swan.  409,  420.  If  he  elects  to 
take  against  the  will  and  keep  his  own  prop- 
erty, and  disappoints  A,  then  he  cannot  take 
any  benefits  under  the  will  without  compen- 
sating A  to  the  extent  of  the  value  of  the 
property  as  to  which  A  is  disappointed ;  5 
Ch.  D.  163 ;  4  Bro.  C.  C.  21. 

The  question  whether  an  election  is  re- 
quired occurs  most  frequently  in  case  of  de- 
vises; "because  deeds  being  generally  mat- 
ters of  contract,  the  contract  is  not  to  be 
interpreted  otherwise  than  as  the  considera- 
tion which  is  expressed  requires;"  L.  Et.  8 
Ch.  57S;  but  it  extends  to  deeds;  1  Swanst. 
400 ;  2  Story,  Eq.  Jur.  §  1075,  n. ;  and  it  has 
been  held  to  apply  to  "voluntary  dee. is.  to 
cases  of  contracts  for  valuable  consideration 
resting  in  articles,  to  contracts  for  value 
completely  executed  by  conveyance  and  as- 
signments" ;  L.  R.  8  Ch.  57S,  where  the  au- 
thorities are  collected.  The  doctrine  also 
applies  to  powers  of  appointment;  L.  R.  9 
Eq.  519 ;  22  Ch.  D.  555 ;  34  id.  160. 

In  the  case,   not  strictly  of  election,   but 


ELECTION  OF  RIGHTS 


990 


ELECTION  OF  RIGHTS 


often  so  treated,  of  two  distinct  gifts  of  a 
testator's  own  property,  one  onerous  and 
the  other  not,  it  is  the  general  rule  that  the 
donee  may  take  one  and  reject  the  other, 
unless  it  appear  that  it  was  the  testator's 
intention  that  the  option  should  not  exist ; 
22  Ch.  D.  573,  577 ;  and  where  a  gift  is  made 
by  a  deed  of  which  the  consideration  is  part- 
ly invalid  by  reason  of  the  disability  of  the 
parties,  the  parts  of  the  deed  are  read  to- 
gether and  the  burden  is  treated  as  the  con- 
sideration for  the  benefit;  Brett,  L.  Cas. 
Mod.  Eq.  263.  Where  a  married  woman 
made  a  valid  appointment  by  will  to  her  hus- 
band under  a  power,  and  also  bequeathed 
personal  property  (not  her  separate  estate) 
to  another  person  to  which  the  power  did 
not  extend,  the  husband  was  not  put  to  his 
election,  but  took  both  under  the  power  and 
jure  mariti,  as  to  the  property  ineffectually 
bequeathed;  9  Ves.  369. 

There  must  be  a  clear  intention  by  the  tes- 
tator to  give  that  which  is  not  his  property ; 
Scott  v.  Depeyster,  1  Edw.  Ch.  (N.  Y.)  532; 
L.  R.  7  Eq.  291.  And  if  the  testator  has 
some  interest  in  the  thing  disposed,  the  pre- 
sumption that  he  intended  to  dispose  only  of 
his  interest  must  be  overruled  in  order  to 
make  a  case  of  election ;  6  Dow.  149,  179 ; 
1  Ves.  515 ;  and  evidence  is  not  admissible 
to  enlarge  the  devise  so  as  to  include  prop- 
erty belonging  to  another;  McDonald  v. 
Shaw,  92  Ark.  15,  121  S.  W.  935,  28  L.  R.  A. 
(N.  S.)  657. 

The  intention  of  the  testator  to  put  the 
devisee  to  his  election  must  appear  from  the 
will  itself;  McDonald  v.  Shaw,  92  Ark.  15, 
121  S.  W.  935,  28  L.  R.  A.  (N.  S.)  657;  but 
surrounding  circumstances  may  be  shown  by 
parol;  Fitzhugh  v.  Hubbard,  41  Ark.  64;  30 
Beav.  14.  The  time  in  which  election  may 
be  exercised  must  be  reasonable;  30  Beav. 
235;  Cooper  v.  Cooper's  Ex'r,  77  Va.  198; 
19  Ves.  663;  Reaves  v.  Garrett's  Adm'r,  34 
Ala.  558;  U.  S.  v.  Duncan,  4  McLean  99, 
Fed.  Cas.  No.  15,002. 

The  doctrine  applies  to  every  species  of 
property  or  interest,  whether  the  donor  does 
or  does  not  know  of  his  right  to  dispose  of 
it;  Wats.  Comp.  Eq.  177;  cases  of  transac- 
tions involving  property  of  the  wife ;  23 
Beav.  457;  Gregory  v.  Gates,  30  Gratt.  (Va.) 
83;  satisfaction  of  dower;  Fuller  v.  Yates, 
8  Paige,  Ch.  (N.  Y.)  325;  2  Sch.  &  K  452 ; 
14  Sim.  258.  The  doctrine  does  not  apply 
to  creditors ;  12  Ves.  354. 

As  to  the  right  or  duty  of  election  by  per- 
sons under  disability,  there  is  much  appar- 
ent confusion  in  the  cases  both  as  to  theory 
and  practice.  Story  states  the  rule  general- 
ly that  married  women,  infants,  and  lunatics 
are  not  bound  by  election ;  2  Eq.  Jur.  §  1097. 
The  statement  would  seem  too  broad  even 
before  the  great  changes  made  in  all  mat- 
ters affecting  the  property  rights  and  powers 
of  married  women  by  recent  legislation,  and 
before  the  changes  characterized  as  a  "brand 


new  invention  of  equity  not  fifty  years  old, 
and  made  exclusively  for  the  benefit  of  mar- 
ried women  under  the  old  law — a  breed 
which  is  rapidly  becoming  extinct ;"  Brett, 
L.  Cas.  Mod.  Eq.  257.  This  writer  considers 
the  old  and  true  doctrine  of  election  to  ap- 
ply only  to  the  acceptance  of  gifts  under  an 
instrument  made  by  another,  while  the  new 
doctrine  involves  the  confirmation  or  repudi- 
ation of  voidable  instruments  made  by  the 
person  electing,  who,  in  the  cases  referred 
to,  is  alwrays  a  married  woman.  The  rule, 
so  far  as  there  is  one,  has  been  stated  thus : 
— Parties  competent  to  make  an  election 
must  usually  be  sui  juris,  but  election  may 
sometimes  be  made  by  a  court  of  equity  on 
behalf  of  infants  and  married  women ;  Bisph. 
Eq.  §  304 ;  but  this  is  really  no  rule  and  prob- 
ably none  can  be  exactly  defined ;  the  cases 
must  be  resorted  to,  and  a  large  measure  of 
judicial  discretion  has  been  exercised  in 
dealing  with  them  as  they  arose.  In  some 
it  is  held  that  a  married  woman  may  be  per- 
mitted to  elect ;  4  Kay  &  J.  409 ;  Van  Steen- 
wyck  v.  Washburn,  59  Wis.  483,  17  N.  W.  289, 
48  Am.  Rep.  532;  Kennedy  v.  Johnston,  65 
Pa.  451,  3  Am.  Rep.  650 ;  in  others  that  she 
cannot ;  3  Myl.  &  Cr.  171 ;  Lord  Cairns  in  L. 
R.  7  H.  L.  67;  9  Ch.  D.  363;  but  it  may  be 
referred  to  a  master  to  inquire  what  is  best 
for  her;  2  Ves.  60;  L.  R.  7  H.  L.  67  (but  in 
this  case  there  were  also  infants).  It  was 
held  by  Lord  Hatherly  that  she  must  elect; 
in  2  J.  &  H.  344  (which  Brett  says  "led  to 
the  new  departure")  ;  followed  in  28  Ch.  D. 
124;  contra;  by  Sir  George  Jessel  in  18  Ch. 
D.  531 ;  followed  by  Chitty,  L.  J.,  in  27  Ch. 
D.  606.  The  decisions  of  Lord  Hatherly  and 
Sir  George  Jessel  were  referred  to  without 
disapproval  by  Lord  Selborne,  one  in  L.  R. 
8  Ch.  578,  and  the  other  in  8  App.  Cas.  420. 
Finally  in  31  Ch.  D.  275,  (reversing  28  Ch. 
Div.  124,)  it  was  held  that  the  wife  would 
not  be  compelled  to  elect,  but  was  entitled  to 
retain  both  funds,  on  the  ground  that  the 
settled  fund  had  a  restraint  on  anticipation. 
This  case  reviews  the  conflicting  decisions 
and  considers  that  they  leave  the  question 
to  be  determined  on  principle.  It  is  treated 
as  deciding  that  but  for  the  fact  on  which 
the  case  was  put  it  was  one  for  election ; 
Snell,  Pr.  Eq.  247;  and  it  assumed  without 
discussion  that  election  applied  to  married 
women,  and  thereby  as  Brett  considers  "seal- 
ed the  triumph  of  the  new  election" ;  Lead. 
Cas.  Mod.  Eq.  257. 

With  regard  to  infants,  the  practice  has 
varied  very  much,  and  the  cases  are  col- 
lected in  1  Swanst.  413,  note  (c).  The  in- 
fant has  been  permitted  to  elect  after  com- 
ing of  age  in  some  cases ;  cas.  t.  Talbot  176 ; 
id.  130;  3  Bro.  P.  C.  173;  in  others  an  in- 
quiry has  been  directed;  2  Sch.  &  Lef.  266; 
and  this  may  be  considered  the  usual  prac- 
tice ;  1  Bro.  P.  C.  300 ;  though  the  court  has 
elected  for  them  without  reference;  26  L.  J. 
N.   S.  Ch.  148;  Addison  v.  Bowie,  2  Bland, 


ELECTION  OF  RIGHTS 


991 


ELECTION  OF  RIGHTS 


Ch.  (Md.)  GOG;  and  the  same  practice  is 
adopted  when  the  persons  to  elect  are  un- 
born; Brett,  L.  Cas.  Mod.  Eq.  260.  Sec,  g<  Q- 
erally,  on  this  subject,  Serrell,  Equit.  DocL 
Elect.   184. 

Persons  not  under  disabilities  are  bound 
to  elect;  Prentice  v.  Janssen,  79  N.  Y.  47S. 
Positive  acts  of  acceptance  or  renunciation 
are  not  indispensable,  but  the  question  is  to 
be  determined  from  the  circumstances  of 
each  case  as  it  arises;  21  Beav.  447;  1  Mo- 
del. 541;  Tiernan  v.  Roland,  15  Pa.  429. 
And  the  election  need  not  be  made  till  all 
the  circumstances  are  known;  2  V.  &  B.  222; 

1  McCl.  &  v.  569.  See,  generally,  2  Story, 
Eq.  Jur.  §  1075;  1  Swanst.  402,  note;  2  Rop. 
Leg.  48<);  Bisph.  Eq.  295. 

A  widow  has  a  right,  regulated  by  statute 
in  the  several  states,  to  declare  her  election 
between  the  provisions  in  her  favor  under 
the  will  of  her  husband  and  her  right  of 
dower.  When  bound  to  elect  she  is  entitled 
to  full  information  and  ascertainment  of  the 
values  of  the  two  interests,  and  she  may  file 
a  bill  in  equity  to  obtain  them;  2  Scribn. 
Dow.  497,  and  cases  cited  at  large  in  note  1. 
The  right  must  be  exercised  by  the  widow 
herself,  being  purely  personal;  Sherman  v. 
Newton,  6  Gray  (Mass.)  307;  Hinton  v.  Hin- 
ton,  28  N.  C.  274;  and  the  rule  is  not  sub- 
ject to  exception  even  if  she  is  insane ;  Lewis 
v.  Lewis,  29  X.  C.  72;  Collins  v.  Carman,  5 
Md.  503.  After  the  widow's  death  within 
forty  days  without  election,  her  representa- 
tives could  not  make  a  renunciation  of  the 
will ;  Boone's  Representatives  v.  Boone,  3 
Har.  &  McH.  (Md.)  95;  Millikin  v.  Welliver. 
37  Ohio  St.  4G0 ;  Eltzroth  v.  Binford,  71  Ind. 
455;  Appeal  of  Crozier,  90  Pa.  3S4,  35  Am. 
Rep.  GG6;  and  the  right  to  a  legacy  in  her 
favor  vests  in  her  executor;  Flynn  v.  Mc- 
Dermott,  183  N.  Y.  62,  75  N.  E.  931,  2  L  R. 
A.  (N.  S.)  959,  110  Am.  St.  Rep.  687,  5  Ann. 
Cas.  81;  and  attacking  a  will  on  the  ground 
of  lack  of  testamentary  capacity  is  not  an 
election  by  the  widow ;  id.  For  the  statutory 
provisions  on  the  subject  see  2  Scribn.  Dow. 
505,  notes. 

There  must  be  an  intention  to  elect  and 
knowledge  of  her  rights  so  as  to  constitute 
a  deliberate  choice ;  Bradford  v.  Kent,  43 
Pa.  174;  and  an  election  made  under  a  mis- 
take does  not  conclude  her ;  1  Bro.  C.  C.  445 ; 
12  Ves.  Jr.  13G;  Snelgrove  v.  Snelgrove,  4 
Dessaus.  (S.  C.)  274;  but  if  she  is  acquaint- 
ed with  the  material  facts  the  election  will 
bind  her  even  though  she  do  not  understand 
her  legal  rights ;  Light  v.  Light,  21  Pa.  407. 
But  see  McDaniel  v.  Douglas,  6  Humph. 
(Tenn.)  220;  Davis  v.  Davis,  11  Ohio  St.  386. 
Nor  is  she  concluded  by  an  election  procured 
by  fraud ;  Smart  v.  Waterhouse,  10  Yerg. 
(Tenn.)    94;  Morrison   v.   Morrison's  Widow, 

2  Dana  (Ky.)  13.  In  some  cases  an  election 
is  implied,  but  so  much  difficulty  is  found  to 
exist  with  respect  to  what  constitutes  an  im- 


plied election  that  it  will  generally  remain 
to  be  determined  by  the  circumstances  of 
each  case.  See  1  Lead.  Cas.  in  Eq.  .~>.".7.  570, 
and  cases  cited;  Blunt  v,  ''all    (Va.) 

481;    Upshaw    v.    I  .  2    Hen.    &    Mun. 

(Va.)  381,  3  Am.  Dec.  '--J:  Reed  v.  Dicker- 
man,  12  Pick.  (Mass. i  146;  Bradford  v. 
Kent,  43  Pa.  474 ;  Thompson's  Lessee  v. 
Hoop,  6  Ohio  St.  4S0;  Craig's  He 
Walthall,  14  Gratt  (Va.)  51S.  A  widow's 
administrator  cannot  sell  land  orig 
longing  to  her,  where  her  husband  by  his 
will  dealt  with  it  as  his,  and  she  for  nine- 
years  bad  elected  to  take  under  his  will; 
Hoggard  v.  Jordan,  140  X.  C.  610,  53  B.  E. 
220,  4  L.  R.  A.   (N.  S.)   1065,  6  Aim 

In  many  states,  if  deprived  of  the  provi- 
sion given  in  lieu  of  dower,  the  widow 
titled  to  demand  her  dower;  '1  Scribn.  Dow. 
525;  Thompson  v.  Egbert,  17  X.  J.  L.  459; 
if  the  deprivation  be  substantial  though  not 
total;  Hastings  v.  Clifford,  32  Me.  132;  or  if 
a  previous  application  for  dower  has 
refused;  Thompson  v.  McGaw.  1  Mete 
(Mass.)  6G;  or  the  statutory  period  for  de- 
mand has  passed  before  she  was  advised  of 
the  failure  of  her  provision;  Hastings  v. 
Clifford,  32  Me.  132;  or  she  had  previously 
elected  to  take  under  the  will;  Hone's  Ex'rs 
v.  Van  Schaick,  20  Wend.  (X.  Y.)  o»i4.  In 
taking  a  testamentary  provision  in  lieu  of 
dower  the  widow  becomes  a  purchaser  for  a 
valuable  consideration;  1  Lead.  Cas.  in  Eq. 
511,  570;  2  Scribn.  Dow.  527;  Warren  v. 
Morris,  4  Del.  Ch.  289. 

In  cases  not  covered  by  statute  a  ■widow  may  be 
required  to  elect  upon  general  equitable  principles. 
In  the  case  last  cited,  she  being  also  a  legatee  of 
one-third  of  the  estate  "according  to  law,"  was  held 
to  be  put  to  her  election,  not  under  the  statute  but 
under  the  general  doctrine  of  equity  which  is  thus 
stated  by  Bates,  Ch.  "This  doctrine  precludes  a 
party  taking  a  benefit  by  deed  or  will  from 
ing  any  title  or  claim  clearly  inconsistent  with  the 
provisions  of  the  instrument  under  which  he  takes 
— putting  him  to  his  election  between  the  two.  Iu 
its  application  to  dower  it  is  nowhere  better  stated 
than  by  our  court  of  appeals  in  Kinsey  v.  Wood- 
ward, 3  Harr.  (Del.)  464.  'In  regard  to  dower  it 
seems  from  all  the  cases  to  be  an  established  rule 
that  a  court  of  equity  will  not  compel  the  widow 
to  make  her  election,  unless  it  be  shown  by  the  ex- 
press words  of  the  testator,  that  the  devise  or  be- 
quest was  given  in  lieu  or  satisfaction  of  dower ; 
or  unless  it  appears  that  such  was  the  testator*s 
Intention,  by  clear  and  manifest  implication  arising 
from  the  fact  that  the  dower  is  plainly  inconsistent 
with  the  devise  or  bequest,  and  so  repugnant  to  the 
will  as  to  defeat  its  provisions.  If  both  claims  can 
stand  consistently  together,  the  widow  is  entitled 
to  both,  although  the  claim  under  the  will  may  be 
much  greater  in  value  than  her  dower.'  "  2  S.  & 
L.  451;  3  Ves.  Jr.  249;  1  Drew.  411;  Dru.  &  War. 
107  ;  3  Kay  &  J.  257 ;  Adsit  v.  Adsit,  2  John.  Ch. 
(N.  Y.)  451,  7  Am.  Dec.  539. 

If  a  beneficiary  elects  to  take  against  the 
will,  the  amount  of  compensation  to  be  paid 
to  a  disappointed  legatee  must  be  ascertain- 
ed as  of  the  time  of  testator's  death,  and 
not  the  date  of  election ;  [1905]  1  Ch.  16. 

Of  Remedies.  A  choice  between  two  or 
more  means  of  redress  for  an  injury  or  the 
punishment  of  a  crime  allowed  by  law. 


ELECTION  OF  RIGHTS 


992 


ELECTION  OF  RIGHTS 


The  selection  of  one  of  several  forms  of 
action  allowed  by  law. 

The  choice  of  remedies  is  a  matter  demanding 
practical  judgment  of  what  will,  upon  the  whole, 
best  secure  the  end  to  be  attained.  Thus,  a  remedy 
may  be  furnished  by  law  or  equity,  and  at  law,  in  a 
variety  of  actions  resembling  each  other  in  some 
particulars.  Actually,  however,  the  choice  is  great- 
ly narrowed  by  statutory  regulations  in  modern 
law,  in  most  cases.    See  1  Chit.  PI.  207-214. 

Where  a  party  has  two  inconsistent  reme- 
dies, and  brings  suit  on  one  with  knowledge 
of  the  facts  and  his  rights  therein,  he  can- 
not thereafter  sue  on.the  other;  A.  Klipstein 
&  Co.  v.  Grant,  141  Fed.  72,  72  C.  C.  A.  511. 
But  it  is  held  that  where  a  wrong  has  been 
inflicted,  and  the  party  is  doubtful  which  of 
two  inconsistent  remedies  is  the  right  one, 
he  may  pursue  both  until  he  recovers 
through  one;  Rankin  v.  Tygard,  198  Fed. 
795.  Supreme  Court  Equity  Rule  25  provides 
that  relief  in  a  bill  may  be  sought  in  alter- 
native forms. 

A  person  may  often  choose  whether  he  will 
sue  in  tort  or  contract.  If  his  goods  are 
taken  from  him  by  fraud  he  may  sue  for 
the  price  in  assumpsit,  or  bring  an  action  of 
replevin  or  trover;  Pike  v.  Bright,  29  Ala. 
332;  Watson  v.  Stever,  25  Mich.  386;  Hud- 
son v.  Gilliland,  25  Ark.  100;  Roberts  v.  Ev- 
ans, 43  Cal.  380;  Phelps  v.  Conant,  30  Vt. 
277 ;  Rogers  v.  Inhabitants  of  Greenbush,  57 
Me.  441.  But  where  a  principal  had  recov- 
ered from  a  fraudulent  agent  for  money  had 
and  received,  it  was  held  he  could  later  sue 
the  third  party  who  had  bought  from  the 
agent,  in  conversion;  [1900]  1  K.  B.  54;  crit- 
icized in  16  L.  Q.  Rev.  100.  And  when  two 
actions  are  pending  at  law  or  in  equity  be- 
tween the  same  persons  and  for  the  same 
subject-matter,  the  plaintiff  is  usually  com- 
pelled to  elect  which  one  he  will  maintain ; 
Central  R.  Co.  of  New  Jersey  v.  R.  Co.,  32 
N.  J.  Eq.  67 ;  Hause  v.  Hause,  29  Minn.  252, 
13  N.  W.  43;  McRae  v.  Singleton,  35  Ala. 
297.  But  an  election  is  not  usually  compel- 
led between  domestic  and  foreign  suits;  In 
re  Bininger,  7  Blatchf.  159,  Fed.  Cas.  No. 
1,417 ;  Wood  v.  Lake,  13  Wis.  94 ;  and  a  fore- 
closure of  a  mortgage  and  a  suit  on  the  bond 
or  note  secured  by  it  as  well  as  actions  to 
enforce  admiralty  liens  and  at  the  same  time 
recover  on  the  debt  are  also  exceptions ; 
Morgan  v.  Sherwood,  53  111.  171 ;  Russell  v. 
Alvarez,  5.  Cal.  4S;  The  Kalorama,  10  Wall. 
(U.  S.)  204,  19  L.  Ed.  941;  Ober  v.  Gallag- 
her, 93  U.  S.  199,  23  L.  Ed.  829. 

It  may  be  laid  down  as  a  general  rule  that 
when  a  statute  prescribes  a  new  remedy  the 
plaintiff  has  his  election  either  to  adopt  such 
remedy  or  proceed  at  common  law.  Such 
statutory  remedy  is  cumulative,  unless  the 
statute  expressly  or  by  necessary  implica- 
tion takes  away  the  common-law  remedy ; 
Miles  v.  O'Hara,  1  S.  &  R.  (Pa.)  32;  Booker's 
Ex'rs  v.  McRoberts,  1  Call  (Va.)  243;  Bear- 
Camp-River  Co.  v.  Woodman,  2  Greenl.  (Me.) 
404;  Mayor,  etc.,  of  Baltimore  v.  Howard,  6 


Har.  &  J.  (Md.)  383;  Coxe  v.  Robbins,  9  N. 
J.  L.  384. 

The  commencement  and  trial  of  an  action 
on  a  contract  is  not  such  an  election  of  rem- 
edies as  would  estop  plaintiff  from  suing  on 
the  notes;  Fifield  v.  Edwards,  39  Mich.  267; 
Kingsbury  v.  Kettle,  90  Mich.  476,  51  N.  W. 
541. 

Where  a  plaintiff  has  separate  and  concur- 
rent remedies  against  a  number  of  parties, 
he  loses  no  rights  by  suing  some  and  after- 
wards discontinuing  his  action;  Bishop  v. 
McGillis,  82  Wis.  120,  51  N.  W.  1075.  See 
Russell  v.  McCall,  141  N.  Y.  437,  36  N.  E. 
498,  38  Am.  St.  Rep.  807.  An  unsatisfied 
judgment  on  a  note  will  not  bar  an  action 
on  notes  taken  as  collateral  security ;  Black 
v.  Reno,  59  Fed.  917. 

By  joining  his  wife  in  a  suit  for  her  lega- 
cy, a  husband  exercises  his  election  to  treat 
it  as  joint  property ;  Wingate  v.  Parsons,  4 
Del.  Ch.  117. 

After  a  suit  in  replevin  has  been  discon- 
tinued before  judgment  without  obtaining 
any  benefit,  because  plaintiff  has  paid  the 
value  of  the  goods  to  satisfy  his  replevin 
bond,  this  suit  does  not  constitute  such  an 
election  of  remedy  as  to  stop  him  from 
claiming  payment  of  the  purchase  price  out 
of  the  assets  of  the  purchaser's  estate ;  Bol- 
ton Mines  Co.  v.  Stokes,  82  Md.  50,  33  Atl. 
491,  31  L.  R.  A.  789.  Bringing  trover  for 
possession  of  goods  by  mistake  will  not  pre- 
clude a  subsequent  action  of  assumpsit  for 
their  purchase  price ;  Clark  v.  Heath,  101 
Me.  530,  64  Atl.  913,  8  L  R.  A.  (N.  S.)   144. 

In  Criminal  Law.  The  choice  or  determi- 
nation by  a  prosecuting  officer,  upon  which  of 
several  charges,  or  counts,  in  an  indictment 
he  will  proceed  to  trial. 

No  objection  can  be  raised,  either  on  de- 
murrer or  in  arrest  of  judgment,  though  the 
defendant  or  defendants  be  charged  in  dif- 
ferent counts  of  an  indictment  with  different 
offences  of  the  same  kind.  Indeed,  on  the 
face  of  the  record,  every  count  purports  to 
be  for  a  separate  offence,  and  in  misdemean- 
ors it  is  the  daily  practice  to  receive  evi- 
dence of  several  libels,  several  assaults,  sev- 
eral acts  of  fraud,  and  the  like,  upon  the 
same  indictment.  In  cases  of  felony,  the 
courts,  in  the  exercise  of  a  sound  discretion, 
are  accustomed  to  quash  indictments  con- 
taining several  distinct  charges,  when  it  ap- 
pears, before  the  defendant  has  pleaded  and 
the  jury  are  charged,  that  the  inquiry  is  to 
include  several  crimes.  When  this  circum- 
stance is  discovered  during  the  progress  of 
the  trial,  the  prosecutor  is  usually  called  up- 
on to  select  one  felony,  and  to  confine  him- 
self to  that,  unless  the  offences,  though  in 
law  distinct,  seem  to  constitute  in  fact  but 
parts  of  one  continuous  transaction.  Thus, 
if  a  prisoner  is  charged  with  receiving  sev- 
eral articles,  knowing  them  to  have  been 
stolen,  and  it  is  proved  that  they  were  re- 
ceived at  separate  times,  the  prosecutor  may 


ELECTION  OF  RIGHTS 


993 


ELECTIONS  IN  CORPORATIONS 


be  put  to  his  election;  but  if  it  is  possible 
that  all  the  goods  may  have  been  received 
at  one  time,  he  cannot  be  compelled  to  aban- 
don any  part  of  his  accusation  ;  1  Mood.  1 16  ; 
2  Mood.  &  B.  524.  In  another  case,  the  de- 
fendant was  charged  in  a  single  count  with 
uttering  twenty-two  forged  receipts,  which 
were  severally  set  out  and  purported  to  be 
signed  by  different  persons,  with  intent  to 
defraud  the  king.  His  counsel  contended 
that  the  prosecutor  ought  to  elect  upon 
which  of  these  receipts  he  would  proceed, 
as  amidst  such  a  variety  it  would  be  almost 
impossible  for  the  prisoner  to  conduct  his 
defence.  As,  however,  the  indictment  alleg- 
ed that  they  were  all  uttered  at  one  and  the 
same  time,  and  the  proof  corresponded  with 
this  allegation,  the  court  refused  to  inter- 
fere; and  all  the  judges  subsequently  held 
that  a  proper  discretion  had  been  exercised ; 
2  Leach  877 ;  2  East,  PI.  Cr.  934.  See  11  CI. 
&  F.  155 ;  Harman  v.  Com.,  12  S.  &  R.  (Pa.) 
69;  Burk  v.  State,  2  Har.  &  J.  (Md.)  426; 
People  v.  Rymlers,  12  Wend.  (N.  Y.)  426; 
Com.  v.  Bennett,  118  Mass.  443;  Van  Sickle 
v.  People,  29  Mich.  61;  State  v.  Mallon,  75 
Mo.  355. 

The  state  need  not  elect  on  which  count 
of  an  indictment  it  will  proceed  to  trial, 
where  the  several  counts  relate  to  the  same 
transaction;  State  v.  Houx,  109  Mo.  654,  19 
S.  W.  35,  32  Am.  St.  Rep.  686. 

The  artificial  distinction  between  felonies  and  mis- 
demeanors is,  in  most  jurisdictions,  obsolete,  and  in 
most  states  several  distinct  offences  to  which  a  sim- 
ilar punishment  is  attached  may  be  joined.  It 
usually  rests  with  the  court  whether  it  will  compel 
a  prosecuting  officer  to  elect  which  count  to  proceed 
on ;  State  v.  Hood,  51  Me.  363  ;  Com.  r.  Sullivan, 
104  Mass.  552  ;  Beasley  v.  People,  89  111.  571 ;  State 
v.  Green,  66  Mo.  632 ;  Whart.  Crim.  PI.  &  Pr.  §  293. 
The  election  should  be  made  before  opening  the  case 
of  the  defence ;    Gilbert  v.  State,  65  Ga.  449. 

ELECTION  DISTRICT.  A  subdivision  of 
territory,  whether  of  state,  county,  or  city, 
the  boundaries  of  which  are  fixed  by  law, 
for  convenience  in  local  or  general  elections. 
Chase  v.  Miller,  41  Pa.  403. 

ELECTIONS   IN    CORPORATIONS.       The 

power  of  election  by  corporations  may  apply 
either  to  corporate  officers  generally,  or  to 
the  selection  of  new  members  to  fill  vacan- 
cies in  (hose  corporations,  whose  nature  and 
composition  require  them  to  consist  of  mem- 
bers and  not  of  holders  of  capital  stock,  as 
eleemosynary  corporations.  The  election  of 
members  of  a  corporation  of  the  former 
class  is,  in  general,  regulated  by  the  char- 
ter, or  other  constituent  law  of  the  corpora- 
tion, or  by  its  by-laws,  and  their  provisions 
must  be  strictly  followed.  In  the  absence  of 
express  regulations  it  is  a  general  principle 
that  the  power  of  election  of  new  members, 
or  when  the  number  is  limited,  of  supplying 
vacancies,  is  an  inherent  power  necessarily 
implied  in  every  corporation  aggregate.  It 
is  said  to  result  from  the  principle  of  self- 
Bouv.— 63 


preservation;  2  Kent  2!>:; ;  1  Rolle,  Abr.  513; 
8  East  272. 

If  the  right  and  power  of  election  is  not 
adequately  prescribed  by  the  charter,  a  cor- 
poration has  power  to  make  by-laws  consist- 
ent with  the  charter,  and  not  contrary  to 
law,  regulating  the  time  and  manner  of  elec- 
tions and  the  qualifications  of  electors,  and 
manner  of  proving  the  same ;  3  Term  189 ; 
Com.  v.  Woelper,  3  S.  &  R.  (Pa.)  29,  8  Am. 
Dec.  628;  Com.  v.  Detwiller,  131  Pa.  614,  18 
Atl.  990,  992,  7  L.  R.  A.  357.  :r,(i-  and  if  there 
be  no  by-law  established  usage  will  be  re- 
sorted to;  Juker  v.  Com.,  20  Pa.  484.  In 
many  states  there  are  general  statutes  on 
this  subject,  and  in  such  case  they  must  be 
strictly  followed;  1  Thoinp.  Corp.  §  715. 

Unless  under  express  provision  as  to  spe- 
cial meetings,  or  filling  vacancies,  elections 
of  officers  are  held  at  regular  meetings  of 
the  corporation.  The  time  is  nearly,  if  not 
always,  regulated  by  statute,  charter,  or  by- 
laws, and  such  cases  as  are  found  on  the 
subject  are  not  as  to  any  general  principle; 

I  Thomp.  Corp.  §  701 ;  the  date  cannot  be 
changed  by  directors  so  as,  by  postponement 
of  an  annual  election,  to  lengthen  their 
terms;  Mottu  v.  Primrose,  23  Md.  482;  a 
business  meeting  of  a  benevolent  corpora- 
tion may  be  held  on  Sunday ;  Teople  v. 
Benev.  Society,  65  Barb.  (N.  Y.  >  357;  and  a 
charter  provision  requiring  the  choice  of  di- 
rectors at  an  annual  meeting  was  held  to 
be  directory  and  not  exclusive;  Hughes  v. 
Parker,  20  N.  H.  58. 

The  place  of  meeting  for  elections  is  also 
usually  regulated  by  the  law  of  the  corpo- 
ration itself,  and  if  there  be  none,  it  should 
unquestionably  be  done  at  its  usual  and 
principal  place  of  business,  or  where  it  ex- 
ercises its  corporate  functions.  This  is  for 
corporate  purposes  its  domicil,  (q.  v.)  and 
the  term  residence  is  also  applied  to  corpora- 
tions, as  the  place  where  its  business  is 
done;  Bristol  v.  R.  Co.,  15  111.  436;  Chicago, 
D.  &  V.  R.  Co.  v.  Bank,  82  111.  493 ;  while  it 
is  a  citizen  only  of  the  state  by  which  it  was 
created ;  id.  In  the  latter  state  only  may 
constituent  acts  be  done;  Bank  of  Augusta 
v.  Earle,  13  Pet.  (U.  S.)  519,  5S8,  10  L.  Ed. 
274;  Galveston,  II.  &  II.  R.  Co.  v.  Cowdrey, 

II  Wall.  (U.  S.)  459,  476,  20  L.  Ed.  199; 
Hilles  v.  Parrish,  14  N.  J.  Eq.  380.  See  also 
Arms  v.  Conant,  36  VL  750;  Ohio  &  M.  R. 
Co.  v.  McPherson,  35  Mo.  13,  86  Am.  Dec. 
128.  Accordingly  it  has  been  held  that  votes 
and  similar  acts  outside  of  the  state  creat- 
ing it  are  void ;  Miller  v.  Ewer,  27  Me.  509. 
46  Am.  Dec.  619 ;  even  under  a  provision  au- 
thorizing the  calling  of  a  first  meeting  at 
such  a  time  or  place  as  they  think  proper ; 
id.;  but  the  appointment  in  one  state  of  a 
secretary,  by  the  directors  of  a  manufactur- 
ing corporation  of  another  state,  has  heen 
held  valid:  McCall  v.  Mfg.  Co.,  6  Conn.  428; 
and  a  corporation  created  by  a  concurrent 


ELECTIONS  IN  CORPORATIONS 


994 


ELECTIONS  IN  CORPORATIONS 


legislation  of  two  states  may  hold  meetings 
for  elections  in  either;  Covington  &  C. 
Bridge  Co.  v.  Mayer,  31  Ohio  St.  317.  In 
some  states,  as  Minnesota,  the  Dakotas,  and 
Colorado,  the  holding  of  such  meetings  is 
permitted  outside  of  the  state;  and  in  the 
latter  state  it  is  held  that  the  fact  that  the 
annual  meeting  was  held  outside  of  the  state 
cannot  be  raised  in  a  collateral  proceeding; 
Humphreys  v.  Mooney,  5  Colo.  282.  Under 
an  authority  to  call  special  meetings  on  no- 
tice of  time  and  place,  they  may  be  called 
by  the  president  at  a  place  other  than  the 
regular  place  of  business ;  Corbett  v.  Wood- 
ward, 5  Sawy.  403,  Fed.  Cas.  No.  3,223 ;  and 
at  such  a  meeting  an  election  may  be  held 
if  otherwise  legal.  Where  no  place  is  named 
in  tbe  charter,  the  directors  may  designate 
it,  and  officers  elected  at  such  meeting  will 
be  such  de  facto;  Com.  v.  Smith,  45  Pa.  59. 
Meetings  for  the  election  of  officers  follow- 
ing the  law  of  the  corporation  must  be  called 
by  the  person  or  persons  designated  for  that 
purpose ;  Congregational  Society  of  Bethany 
v.  Sperry,  10  Conn.  200;  Reilly  v.  Oglebay, 
25  W.  Va.  3G;  though  it  has  been  held  that 
it  need  not  always  be  by  formal  action  or 
with  strictness  of  procedure  if  it  is  done  by 
their  direction ;  Hardenburgh  v.  Bank,  3  N. 
J.  Eq.  68;  Citizens'  Mut.  Fire  Ins.  Co.  V. 
Sortwell,  8  Alien  (Mass.)  217;  contra;  Reil- 
ly v.  Oglebay,  25  W.  Va.  36;  Goulding  v. 
Clark,  34  N.  H.  148;  Third  School  District 
in  Stoughton  v.  Atherton,  12  Mete.  (Mass.) 
105;  they  must  be  duly  assembled;  German 
Evangelical  Congregation  v.  Pressler,  14  La. 
Ann.  799 ;  whether  of  stockholders ;  Peirce 
v.  Building  Co.,  9  La.  397,  29  Am.  Dec.  448 ; 
or  directors ;  Despatch  Line  of  Packets  v. 
Mfg.  Co.,  12  N.  H.  205,  37  Am.  Dec.  203 ;  El- 
liot v.  Abbot,  12  N.  H.  549,  37  Am.  Dec.  227 ; 
Herrington  v.  District  Tp.  of  Liston,  47  la. 
11 ;  upon  due  notice;  5  Burr.  2681 ;  in  ac- 
cordance with  charter  or  by-laws;  Cogswell 
v.  Bullock,  13  Allen  (Mass.)  90;  Stow  v. 
Wyse,  7  Conn.  214,  18  Am.  Dec.  99;  Stock- 
holders of  Shelby  R.  Co.  v.  R.  Co.,  12  Bush 
(Ky.)  62;  and  when  there  is  no  provision 
as  to  method,  personal  notice  is  proper ; 
Stow  v.  Wyse,  7  Conn.  214,  18  Am.  Dec.  99 ; 
or  according  to  general  statute  law,  if  there 
be  such ;  In  re  Long  Island  R.  Co.,  19  Wend. 
(N.  Y.)  37,  32  Am.  Dec.  429;  but,  though  it 
is  safer  and  better  practice  to  give  notice, 
in  case  of  stated  meetings  for  regular  elec- 
tions, notice  is  not  required,  but  the  mem- 
bers are  charged  with  notice  of  them ;  Samp- 
son v.  Mill  Corp.,  36  Me.  78 ;  4  B.  &  C.  441 ; 
Atlantic  Mut.  Fire  Ins.  Co.  v.  Sanders,  36 
N.  H.  252;  People  v.  Peck,  11  Wend.  (N.  Y.) 
604,  27  Am.  Dec.  104 ;  while  of  special  meet- 
ings there  must  always  be  notice;  2  H.  L. 
Cas.  789 ;  People  v.  Batchelor,  22  N.  Y.  128 ; 
Com.  v.  Guardians  of  Poor  of  Philadelphia, 
6  S.  &  R.  (Pa.)  469;  and  the  failure  to  not- 
tify  a  single  member  will  avoid  the  proceed- 


ings, 5  Burr.  2681 ;  4  B.  &  C.  441 ;  4  A.  &  E. 
538;  People  v.  Batchelor,  22  N.  Y.  128;  un- 
less notice  is  waived  by  attendance,  as,  if 
all  are  present,  each  of  them  waives  the 
want  or  irregularity  of  notice ;  Jones  v. 
Turnpike  Co.,  7  Ind.  547;  People  v.  Peck, 
11  Wend.  (N.  Y.)  604,  27  Am.  Dec.  104. 
Such  waiver  will  not  operate  as  against  a 
positive  direction  of  the  charter;  1  Dill. 
Mun.  Corp.  §  264 ;  and  when  there  is  no  pro- 
vision as  to  notice  it  must  be  personal ;  Sav- 
ings Bank  of  New  Haven  v.  Davis,  8  Conn. 
191 ;  Wiggin  v.  First  Freewill  Baptist 
Church,  8  Mete.  (Mass.)  301;  Harding  v. 
Vandewater,  40  Cal.  77. 

As  to  what  constitutes  a  quorum  at  elec- 
tions, see  Meetings  ;  Quoeum. 

As  to  all  the  details  of  the  conduct  of  elec- 
tions, the  provisions  of  state  statutes,  char- 
ters, or  by-laws,  must  be  strictly  pursued 
and  will  generally  be  found  to  cover  the 
subject.  Where  a  statute  provided  for  three 
hispectors,  it  was  held  that  two  could  act ; 
In  re  Excelsior  Fire  Ins.  Co.,  16  Abb.  Pr. 
(N.  Y.)  8.  The  method  of  appointment  pre- 
scribed must  be  strictly  followed;  People  v. 
Peck,  11  Wend.  (N.  Y.)  604,  27  Am.  Dec.  104; 
though  in  certain  emergencies  the  corpora- 
tors may  appoint;  Matter  of  Wheeler,  2  Abb. 
Pr.  N.  S.  (N.  Y.)  361;  and  a  candidate  has 
been  held  not  disqualified;  Ex  parte  Will- 
cocks,  7  Cow.  (N.  Y.)  402,  17  Am.  Dec.  525; 
but  this  is  so  contrary  to  well  settled  and 
judicious  legal  principles  that  it  cannot  be 
considered  desirable.  An  election  otherwise 
valid  will  not  be  avoided  because  inspectors 
were  not  sworn ;  In  re  Chenango  County 
Mut.  Ins.  Co.,  19  Wend.  (N.  Y.)  635;  or  the 
oath  taken  not  subscribed  by  them ;  Matter 
of  Wheeler,  2  Abb.  Pr.  N.  S.  (N.  Y.)  361. 
In  the  absence  of  a  statute  to  the  contrary, 
their  duties  are  ministerial,  and  they  cannot 
act  upon  the  challenge  of  a  vote  except  to 
follow  the  transfer  books ;  In  re  Long  Island 
R.  Co.,  19  Wend.  (N.  Y.)  37,  32  Am.  Dec.  429; 
or  put  the  challenged  party  on  oath ;  id. 
note;  or  pass  judicially  upon  proxies  regu- 
lar on  their  face ;  In  re  Election  of  Direc- 
tors of  St.  Lawrence  Steamboat  Co.,  44  N. 
J.  L.  529 ;  because  not  acknowledged  or  wit- 
nessed;  In  re  Cecil,  36  How.  Pr.  (N.  Y.) 
477 ;  but  this  would  be  otherwise  if,  as  is 
often  the  case,  the  charter  requires  witness- 
es. They  may  not  reject  votes  once  receiv- 
ed; Hartt  v.  Harvey,  10  Abb.  Pr.  (N.  Y.) 
321 ;  nor  go  beyond  the  ballot  to  ascertain 
the  intention  of  the  voter;  Loubat  v.  Le 
Roy,  15  Abb.  N.  C.  (N.  Y.)  16.  Ballots  in 
which  only  the  initials  of  a  candidate  were 
inserted  have  been  held  sufficient  when  it 
was  determined  by  a  verdict  who  was  in- 
tended thereby ;  People  v.  Seaman,  5  Denio 
(N.  Y.)  409.  If  the  statutes  provide  that 
only  a  certain  number  are  to  be  chosen,  bal- 
lots containing  more  names  will  not  be 
counted;    State   v.   Thompson,   27   Mo.   365; 


ELECTIONS   IN  CORPORATIONS 


995 


ELECTIONS  IN  CORPORA  : 


2  Burr.  1020;  votes  for  ineligible  candidates 
were  formerly  held  to  be  "thrown  away;" 
2  Burr.  1021  note;  but  it  has  been  held  in  a 
later  ease  that  such  votes  will  not  give  the 
election  to  a  minority  candidate  unless  the 
voids  knew  of  the  ineligibility;  In  re  Elec- 
tion of  Directors  of  St.  Lawrence  Steam- 
boat Co.,  44  N.  J.  L.  529. 

There  is  no  common-law  right  to  vote  by 
pro.ru,  except  in  England  in  the  House  of 
Lords;  1  Bla.  Com.  168;  Com.  v.  Detwiller, 
131  Pa.  G23,  IS  Atl.  919,  992,  7  L.  R.  A.  357, 
360;  and  in  public  or  municipal  corporations, 
voting  can  only  be  done  in  person;  2  Kent 
294;  in  private  corporations,  the  right  of 
voting  by  proxy  is  usually  conferred  by 
charter  and  the  weight  of  authority  is  that, 
if  not  so  conferred,  it  may  be  done  by  by- 
law ;  id.  295 :  Com.  v.  Detwiller,  131  Pa.  614, 
18  Atl.  919,  992,  7  L.  R.  A.  357,  360;  People 
v.  Crossley,  69  111.  195 ;  Moraw.  Corp.  §  4SG ; 
contra;  People  v.  Twaddell,  18  Hun  (N.  Y. » 
427;  Taylor  v.  Griswold,  14  N.  J.  L.  222,  27 
Am.  Dec.  33.  A  proxy  may  be  revoked,  even 
if  given  for  a  valuable  consideration,  if 
about  to  be  used  fraudulently ;  Reed  v. 
Rank,  6  Paige  Ch.  (N.  Y:)  337;  and  voting 
by  proxy  in  fraud  or  violation  of  the  char- 
ter may  be  restrained  by  injunction;  Camp- 
bell v.  Poultuey,  Ellicott  &  Co.,  6  Gill  &  J. 
<Md.)  94,  26  Am.  Dec.  559.  A  certificate  of 
election  is  not  essential ;  People  v.  Peck,  11 
Wend.  (N.  Y.)  604,  27  Am.  Dec.  104;  but  it 
is,  when  valid  on  its  face,  prima  facie  evi- 
dence of  election ;  Hartt  v.  Harvey,  10  Abb. 
Pr.  (N.  Y.)  321;  but  a  court  on  quo  warraiv- 
to,  may  go  behind  it;  People  v.  Vail,  20 
Wend.   (N.  Y.)   12. 

It  is  probable  that  at  common  law  each 
stockholder  is  entitled  to  but  one  vote  with- 
out respect  to  the  number  of  shares  held. 
In  public  and  municipal  corporations  un- 
doubtedly each  member  has  but  one  vote, 
and  it  is  said  in  connection  with  the  state- 
ment of  this  principle:  "This  rule  has  been 
applied  to  stockholders  in  a  private  corpo- 
ration, and  it  has  been  held  that  such  a 
shareholder  has  but  one  vote ;  Cook,  Stock 
&  Stockholders,  §  608.  But  this  writer,  after 
adverting  to  the  almost  universal  practice 
of  providing  by  constitution,  statute,  or  char- 
ter for  a  vote  to  each  share  of  stock  adds, 
"at  the  present  day  it  is  probable  that  no 
court,  even  in  the  absence  of  such  provision, 
would  uphold  a  rule  which  disregards  the 
number  of  shares  which  the  shareholder 
holds  in  the  corporation  ;  "  id.  And  after  a 
reference  to  the  same  common-law  rule  it 
is  said :  "But  there  are  good  reasons  for 
holding  that  this  rule  has  no  application  to 
ordinary  joint  stock  business  corporations 
of  the  present  day;"  Moraw.  Corp.  §  476. 
Where  the  charter  declared  that  the  by- 
laws may  make  provision  for  the  conduct  of 
elections,  it  was  held  that  a  corporation 
might  enact  a  by-law  giving  to  stockholders 


a  vote  for  each  share  of  stock ;  Com.  v.  Det- 
willer, 131  Pa.  G14,  18  Atl.  990,  992,  7  L.  R. 
A.  357.  360. 

See  Meetings;  Proxy;  Quoeum  ;  Cumvla- 
tivi;  Voting. 

ELECTOR.     One    who    has    the    right    to 

make  choice  of  public  officers ;  one  who  has 
a    right  to   vote.      See  Taylor  v.    Taylor,   10 
Minn.     107,      (Gil.     81).     See     Puesiu; 
Electors. 

One  who  exercises  the  right  of  elect 
equity.     The  term  is  sometimes  used  in  this 
sense.    Brett,  L.  Cas.  Mod.  Bq.  2.~.7. 

In  the  German  Empire  the  name  was  giv- 
en to  those  great  princes  who  had  the  right 
to  elect  the  emperor  or  king.  The 
elector  in  some  instances  became  hereditary 
and  was  connected  with  territorial  posses- 
sions as,  elector  of  Saxony. 

ELECTORAL  COLLEGE.  A  name  given 
to  the  presidential  electors,  when  met  to 
vote  for  president  and  vice-president  of  the 
United  States,  by  analogy  to  the  college  of 
cardinals,  which  elects  the  pope,  or  the  body 
which  formerly  selected  the  German  emper- 
or. It  is,  according  to  the  more  general  us- 
age, applied  to  the  electors  chosen  by  a  sin- 
gle state,  but  is  also  used  to  designate  those 
chosen  throughout  the  United  States. 

This  term  has  no  strict  legal  or  technical  mean- 
ing, and  being  unknown  to  the  constitution  and  laws 
of  the  United  States,  its  use  is  purely  colloquial. 
Accordingly  the  term  is  not  clearly  defined, 
is  employed  by  approved  writers  in  both  the  senses 
stated,  though  more  frequently  when  reference  is 
made  to  the  entire  body  of  electors  the  plural  is 
employed,  as,  "the  expectations  of  the  public  .  .  . 
(have)  been  so  completely  frustrated  as  in  the  prac- 
tical operation  of  the  system,  so  far  as  relates  to 
the  independence  of  the  electors  In  the  electoral 
colleges;"  2  Sto.  Const.  §  14G3 ;  "...  would  be 
chosen  as  electors,  and  would,  after  mature  delib- 
eration in  their  respective  colleges,"  etc.  ;  1  Hare, 
Am.  Const.  L.  219 ;  "the  electoral  colleges  have 
sunk  so  low"  ;  id.  221.  So  In  speaking  of  the  elec- 
tors the  phrase  "state  colleges"  is  used  by  Stevens, 
Sources  of  the  Constitution  of  the  U.  S.  153,  note. 
Following  this  view  is  the  following  definition:  A 
name  informally  given  to  the  electors  of  a  single 
state  when  met  to  vote  for  president  and  vice-presi- 
dent of  the  United  States,  and  sometimes  to  the 
whole  body  of  electors.     Cent  Diet. 

On  the  other  hand,  the  other  use  is  well  sustained 
by  authority,  and  we  find  this  definition:  The  body 
of  electors  chosen  by  the  people  to  elect  their  presi- 
dent. Encyc.  Diet.  This  is  supported  by  AY 
and  Worcester  as  well  as  some  authorities  on  con- 
stitutional law.  "The  presidential  electors  chosen  as 
therein  directed,  constitute  what  is  commonly  called 
the  'electoral  college';"  Black,  Const  L.  86;  and 
again,  "by  an  electoral  college  appointed  or  elected 
in  the  several  states" ;  id.  "In  case  the  electoral 
college  fails  to  choose  a  vice-president,  the  power'de- 
volves  on  the  senate  to  make  the  selection  from  the 
two  candidates  having  the  highest  number  of  votes." 
1  Calhoun's  Works,  175.  See  Presidential  Elec- 
tors. 

ELECTORAL  COMMISSION.  A  commis- 
sion created  by  an  act  of  congress  of  Janu- 
ary 29,  LS77,  to  decide  certain  questions  aris- 
ing out  of  the  presidential  election  of  No- 
vember, 1S70,  in  which  Hayes  and  Wheeler 
had  been  candidates  of  the  republican  party 


ELECTORAL  COMMISSION 


996 


ELECTORAL  COMMISSION 


and  Tilden  and  Hendricks  of  the  democratic 
party.  The  election  was  very  close,  and  de- 
pended on  the  electoral  votes  of  South  Caro- 
lina, Florida,  and  Louisiana.  It  was  feared 
that  there  would  be  much  trouble  at  the  final 
counting  of  the  votes  by  the  president  of  the 
senate  according  to  the  plan  laid  down  in 
the  Constitution.  The  republicans  had  a 
majority  in  the  senate  and  the  democrats 
had  a  majority  in  the  house  of  representa- 
tives. A  resolution  was  adopted  by  congress 
for  the  appointment  of  a  committee  of  seven 
menders  by  the  speaker  to  act  in  conjunc- 
tion with  a  similar  committee  that  might  be 
appointed  by  the  senate  to  prepare  a  report 
and  plan  for  the  creation  of  a  tribunal  to 
count  the  electoral  votes  whose  authority  no 
one  would  question  and  whose  decision  all 
would  accept  as  final.  The  joint  committee 
thus  appointed  reported  a  bill  providing  for 
a  commission  of  fifteen  members,  to  be  com- 
posed of  five  members  from  each  house  ap- 
pointed viva  voce,  with  four  associate  jus- 
tices of  the  supreme  court,  which  latter 
would  select  another  of  the  justices  of  the 
supreme  court,  the  entire  commission  to  be 
presided  over  by  the  associate  justice  longest 
in  commission.  This  body  has  since  been 
known  as  the  Electoral  Commission. 

Justices  Clifford,  Miller,  Field,  and  Strong 
were  named  in  the  act  as  members,  and  they 
chose  as  the  fifth  justice  Justice  Bradley. 
The  other  members  were  Senators  Bayard, 
Edmunds,  Frelinghuysen,  Morton,  and  Thur- 
man,  and  Representatives  Abbott,  Garfield, 
Hoar,  Hunton,  and  Payne. 

The  commission  began  its  sessions  Febru- 
ary 1,  and  completed  its  work  March  2,  1877. 
Various  questions  came  before  it  in  regard 
to  the  electoral  vote  of  South  Carolina, 
Florida,  and  Louisiana,  as  to  which  of  two 
state  returns  was  valid,  and  as  to  the  eligi- 
bility of  certain  of  the  presidential  electors. 
The  most  important  decision  of  the  commis- 
sion and  the  one  which  has  caused  most 
comment  and  criticism  was  to  the  effect  that 
the  regular  returns  from  a  state  must  be  ac- 
cepted, and  that  the  commission  had  no  pow- 
er to  go  behind  these  returns ;  or,  as  the  com- 
mission itself  expressed  it,  "that  it  is  not 
competent  under  the  Constitution  and  the 
law  as.  it  existed  at  the  date  of  the  passage 
of  said  act,  to  go  into  evidence  aliunde  the 
papers  opened  by  the  president  of  the  senate 
in  the  presence  of  the  two  houses,  to  prove 
that  other  persons  than  those  regularly  cer- 
tified to  by  the  governor  of  the  state  of 
Florida  in  and  according  to  the  determina- 
tion and  declaration  of  their  appointment  by 
the  Board  of  State  Canvassers  of  said  state 
prior  to  the  time  required  for  the  perform- 
ance of  their  duties,  had  been  appointed 
electors,  or  by  counter-proof  to  show  that 
they  had  not,  and  that  all  proceedings  of 
the  courts  or  acts  of  the  legislature  or  of  the 
executive  of  Florida  subsequent  to  the  cast- 


ing of  the  votes  of  the  electors  on  the  pre- 
scribed day  are  inadmissible  for  any  such 
purpose."  2  Curtis,  Const.  Hist,  of  U.  S., 
419. 

The  result  of  the  controversy  over  the 
election  of  1876  was  the  passage,  after  long 
and  earnest  consideration,  of  the  Act  of 
Feb.  3,  1SS7,  to  regulate  the  counting  of  the 
electoral  votes  for  president  and  vice-presi- 
dent. U.  S.  R.  S.  1  Supp.  525.  See  Presi- 
dential Electors  ;  President  of  the  Unit- 
ed States;   38  Am.  L.  Rev.  1. 

ELECTRIC    COMPANIES.       Such  compa- 
nies, although  not  public  corporations  in  the 
sense  that  the  term  is  applied  to  municipal 
corporations;    Croswell  Elec.  §  20;    and  be- 
ing unable    without   statutory   authority   to 
claim  an  exemption  of  property  from  the  or- 
dinary mechanic's  lien;    Badger  Lumber  Co. 
v.   Power  Co.,  48  Kan.  182,  29  Pac.  476,  15 
L.  R.  A.  652,  30  Am.  St.  Rep.  301 ;   are  held 
to  exercise  a  public  use  and  are  of  a  public 
character  similar  to  telegraph  and  telephone 
companies;    Opinion  of  Justices,  150   Mass. 
592,  24  N.  E.  1084,  8  L.  R.  A.  4S7;   Linn  v. 
Chambersburg  Borough,  160  Pa.  511,  28  Atl. 
842,    25    L.   R.    A.   217;     Thompson-Houston 
Electric  Co.  v.  City  of  Newton,  42  Fed.  723; 
City  of  Crawfordsville  v.  Braden,  130   Ind. 
149,  28  N.   E.  849,  14  L.  R.  A.  268,  30  Am. 
St.   Rep.  214.     Poles  and  wires  erected  for 
lighting  city   streets  are   a  public  use   and 
constitute  no   additional  burden;    Tuttle  v. 
Illuminating  Co.,   50  N.   Y.    Super.   Ct.  464; 
People  v.  Thompson,  65  How.  Pr.  (N.  Y.)  407, 
affirmed  in  32  Hun  (N.   Y.)  93;    Tiffany  & 
Co.  v.  Illuminating  Co.,  51  N.  Y.  Super.  Ct. 
2S6;    Johnson  v.   Electric  Co.,  54  Hun  469, 
7  N.  Y.  Supp.  716;    Gulf  Coast  Ice  &  Mfg. 
Co.  v.  Bowers,  80  Miss.  570,  32  South.  113 ; 
Halsey  v.  Ry.  Co.,  47  N.  J.  Eq.  380,  20  Atl. 
859;    Loeber  v.  Electric  Co.,  16  Mont.  1,  39 
Pac.    912,    50   Am.    St    Rep.    468;    but    not 
where  a  pole  shut  off  free  access  to  a  store; 
Tiffany  &  Co.  v.  Illuminating  Co.,  51  N.  Y. 
Super.  Ct.  280.     The  same  general  rule  may 
be   applied   to   rural   highways;     Palmer   v. 
Electric  Co.,  158  N.  Y.  231,  52  N.  E.   1092, 
43  L.  R.  A.  672;    contra,  Haverford  Electric 
Light  Co.  v.  Hart,  13  Pa.  Co.  Ct.  369.     In 
the  case  of  private  lighting,   such  use   en- 
titles the  owner  to  compensation;    Callen  v. 
Electric  Light  Co.,  66  Ohio  166,  64  N.  E.  141, 
58  L.  R.  A.  7S2.     See,  generally,  Joyce  on 
Electric  Law. 

They  are  held  to  be  manufacturing  com- 
panies with  reference  to  taxation;  People 
v.  Wemple,  129  N.  Y.  543,  29  N.  E.  808,  14 
L.  R.  A.  708  (reversing  People  v.  Wemple, 
15  N.  Y.  Supp.  718);  Beggs  v.  Illuminating 
Co.,  96  Ala.  295,  11  South.  381,  38  Am.  St, 
Rep.  94;  People  v.  Wemple,  129  N.  Y.  664, 
29  N.  E.  812;  contra,  Evanston  Electric  Il- 
luminating Co.  v.  Kochersperger,  175  111.  26, 
51  N.  E.  719;  Frederick  Electric  Light  & 
Power  Co.  v.   Frederick  City,   84  Md.   599, 


ELECTRIC  COMPANIES 


997 


ELECTRIC  COMPANIES 


36  Atl.  302,  30  L.  R.  A.  130;  Com.  v.  Light 
&  Tower  Co.,  145  Pa.  105,  22  Atl.  S39,  14 
L.  R.  A.  107;  Com.  v.  Electric  Light  Co., 
145  Pa.  131,  22  Atl.  S41,  845,  ^7  Am.  St.  Rep. 
683;  Com.  v.  Electric  Light  Co.,  1  15  Pa.  147, 
22  Atl.  844.  See  Globe  Mut.  Life  Ins.  Ass'n 
v.  Ahern,  191  111.  170,  60  X.  E.  S0G. 

Charter  authority  to  such  a  company  to 
enter  upon  any  public  street  of  a  city  for 
the  purpose  of  its  business  is  held  to  in- 
clude the  right  to  lay  conduits  beneath  the 
sidewalks;  Allegheny  County  Light  Co.  v. 
Booth,  210  Pa.  564,  66  Atl.  72,  9  L.  R.  A. 
(N.  S.)    104. 

Implied  Powers  of  the  Municipality.  The 
right  of  a  municipality  to  light  the  streets 
is  generally  conceded  as  a  part  of  the  police 
power  and  while  usually  enumerated  in 
the  charters,  its  omission  would  not  de- 
prive the  city  of  such  right,  whether  by 
electricity  or  other  means;  City  of  Craw- 
fordsville  v.  Braden,  130  Ind.  149,  28  N.  E. 
849,  14  L.  R.  A.  268,  30  Am.  St.  Rep.  214; 
Mauldin  v.  City  Couucil  of  Greenville,  33 
S.  C.  1,  11  S.  E.  434,  8  L.  R.  A.  291;  State 
v.  City  of  Hiawatha,  53  Kan.  477,  36  Pac. 
1119;  Hamilton  Gaslight  &  Coke  Co.  v. 
City  of  Hamilton,  37  Fed.  832;  Hamilton 
Gas  Light  &  Coke  Co.  v.  Hamilton  City,  146 
U.  S.  25S,  13  Sup.  Ct.  90,  36  L.  Ed.  963;  and 
the  right  of  the  municipality,  not  only  to 
own,  operate,  and  control  an  electric  light 
plant,  but  to  raise  money  for  such  purpose 
by  taxation  has  been  upheld;  City  of  Craw- 
fordsville  v.  Braden,  130  Ind.  149,  28  N.  E. 
849,  14  L.  R.  A.  268,  30  Am.  St.  Rep.  214; 
Mauldin  v.  City  Council  of  Greenville,  33 
S.  C.  1,  11  S.  E.  434,  8  L.  R.  A.  291;  State 
V.  City  of  Hiawatha,  53  Kan.  477,  36  Pac. 
1119;  and  to  issue  bonds  for  that  purpose; 
Rushville  Gas  Co.  v.  City  of  Rushville,  121 
Ind.  212,  23  N.  E.  72,  6  L.  R.  A.  315,  16  Am. 
St.  Rep.  388 ;  Hequembourg  v.  City  of  Dun- 
kirk. 49  Hun  550,  2  N.  Y.  Supp.  447.  The 
contrary  view  of  such  implied  powers  was 
taken  in  Spaulding  v.  Inhabitants  of  Pea- 
body,  153  Mass.  129,  26  N.  E.  421,  10  L.  R. 
A.  397,  where  the  court  decided  that  the  ex- 
isting statute  giving  towns  the  right  to  main- 
tain street  lamps  and  to  raise  money  by 
taxation  for  such  purpose  did  not  carry 
with  it  the  right  to  maintain  the  more  cost- 
ly electric  light  plant,  and  that  to  authorize 
such  a  purchase  an  express  statute  must  be 
passed,  thus  settling  a  question  raised  but 
not  decided  in  Opinion  of  Justices,  150 
Mass.  592,  24  N.  E.  1084,  8  L.  R.  A.  4S7. 
The  Massachusetts  case  was  followed  in 
Posey  v.  Town  of  North  Birmingham,  154 
Ala.  511,  45  South.  663,  15  L.  R.  A.  (N.  S.) 
711. 

Commercial  Lighting  by  the  Municipality. 
Where  the  right  of  maintaining  an  electric 
light  plant  has  been  conferred  upon  towns 
by  statute,  it  has  been  usually  held  to  apply 
as  well  to  private  property  as  to  public 
highways;     Thompson-Houston    Electric    Co. 


v.  City  of  Newton,  42  Fed.  723;  City  of 
Crawfordsville  v.  Braden,  130  Ind.  149,  2S 
N.  E.  849,  14  L.  R.  A.  268,  30  Am.  St.  Rep. 
214 ;  but  where  it  has  been  only  implied 
from  existing  statutes  the  Implication  will 
not  extend  to  a  commercial  use;  Mauldin  v. 
City  Council  of  Greenvi  .  C.   I,  11   B. 

B.  434,  8  L.   R.   A.  291;    Rushville  Ga 
v.  City  of  Rushville,  121   Ind.  212,  23 
72,  6  L.  R.  A.  315,  10  Am.  St.  Rep.  388.     Stat- 
utes conferring  such  rights  are  constitution- 
al;   Opinion  of  the  Justices,  150  Mass.   592, 

24  N.  E.  L084,  8  L.  R.  A.  487;  Linn  v.  Cham- 
bersburg  Borough,  100  Pa.  511,  28  Atl.  842, 

25  L.  R.  A.  217;  Hequembourg  v.  City  of 
Dunkirk,  49  Hun  550,  2  N.  Y.  Supp.  117: 
State  v.  Allen,  17S  Mo.  555,  77  S.  W. 
Mitchell  v.  City  of  Negaunee,  113  Mich.  359, 
71  N.  W.  640,  3S  L.  R.  A.  157,  07  Am.  St. 
Rep.  4GS;  Fawcett  v.  Mt.  Airy,  134  X.  »'. 
125,  45  S.  E.  1029,  G3  L.  R.  A.  870,  101  Am. 
St.  Rep.  825. 

In  so  far  as  municipal  corporations  are 
engaged  in  the  discharge  of  the  powers  and 
duties  imposed  upon  them  by  the  legislature 
as  governmental  agencies  of  the  state,  they 
are  not  liable  for  breach  of  duty  by  their 
officers;  in  that  respect  the  officers  are  the 
agents  of  the  state,  although  selected  by  the 
municipality.  When  acting  in  their  minis- 
terial or  corporate  character  in  the  man- 
agement of  property  used  for  their  own 
benefit  or  profit,  discharging  powers  and  du- 
ties voluntarily  assumed  for  their  own  ad- 
vantage, they  are  liable  to  an  action  to  per- 
sons injured  by  the  negligence  of  their  serv- 
ants, agents  and  officers ;  and  it  is  immate- 
rial whether  such  servant,  agent  or  officer 
be  a  corporation  or  an  individual;  City  of 
Owensboro  v.  Knox's  Adm'r,  110  Ky.  451,  76 
S.  W.  191;  Emery  v.  Philadelphia,  20S  Pa. 
492,  57  Atl.  977;  Twist  v.  City  of  Rochester, 
165  N.  Y.  619,  59  N.  E.  1131;  City  of  Em- 
poria v.  Burns,  67  Kan.  523,  73  Pac.  94; 
Moffitt  v.  Asheville,  103  N.  C.  237,  9  S.  E. 
095,  14  Am.  St.  Rep.  810;  Fisher  v.  City  of 
New  Bern,  140  N.  C.  506,  53  S.  E.  342,  5  L. 
R.  A.  (N.  S.)  542,  111  Am.  St.  Rep.  857, 
where  a  commission  was  established  by  the 
legislature  to  have  charge  of  the  electric 
light,  water  and  sewer  systems  of  a  city. 
It  was  held  that,  though  one  of  the  pur- 
poses of  the  company  in  the  construction  of 
the  electric  light  plant  was  the  illumination 
of  the  streets  (which  possibly  might  be  con- 
sidered a  governmental  function),  yet  the 
selling  the  power  for  profit  to  shops,  resi- 
dences, etc.,  would  place  such  a  corporation 
upon  the  same  footing  as  private  individuals 
engaged  in  the  same  business.  The  city  was 
held  responsible  for  the  negligence  of  the 
commission  in  leaving  a  live,  broken  elec- 
tric! light  wire  on  a  pole  in  a  much  used 
street,  where  one  stepped  upon  it  and  was 
killed.  And  to  the  same  effect  that  a  city 
is  liable  in  the  exercise  of  its  business  pow- 
ers, see  Davoust  v.  City  of  Alameda,  149  Cal. 


ELECTRIC  COMPANIES 


998 


ELECTRIC  COMPANIES 


69,  S4  Pac.  760,  5  L.  R.  A.  (N.  S.)  536,  9  Ann. 
Cas.  847;  Esberg  Cigar  Co.  v.  City  of  Port- 
land, 34  Or.  2S2,  55  Pac.  961,  43  L.  R.  A.  435, 
75  Am.  St.  Rep.  651;  City  of  Henderson  v. 
Young,  119  Ky.  224,  S3  S.  W.  5S3,  26  Ky. 
L.  Rep.  1152;  Twist  v.  City  of  Rochester, 
165  N.  Y.  619,  59  N.  E.  1131 ;  Bullniaster  v. 
City  of  St.  Joseph,  70  Mo.  App.  60. 

It  has  been  held  that  the  duty  of  a  city 
to  see  that  its  highways,  are  in  a  safe  con- 
dition does  not  extend  to  the  inspection  of 
the  insulation  of  wires  owned  by  a  private 
corporation,  and  that  recovery  cannot  be 
had  from  the  city  for  a  death  caused  by  a 
banging  wire  charged  by  the  defective  in- 
sulation of  a  wire  belonging  to  an  electric 
company;  Fox  v.  Village  of  Manchester,  183 
N.  Y.  141,  75  N.  E.  1116,  2  L.  R.  A.  (N.  S.) 
474.  But  see,  to  the  contrary.  Gladdon  v. 
Borough  of  Duncannon,  23  Pa.  Co.  Ct.  R.  81, 
where  a  borough,  manufacturing  electricity 
for  the  use  of  its  inhabitants,  was  held  not 
to  become  thereby  an  electric  light  com- 
pany, so  as  to  be  liable  under  an  act  pro- 
viding for  the  recovery  of  damage  to  trees 
by  such  companies. 

As  to  Rights  and  Privileges.  A  munici- 
pality may  grant  a  franchise  to  an  electric 
light  company  to  use  its  streets  without 
making  such  right  an  exclusive  one;  Crow- 
der  v.  Town  of  Sullivan,  128  Ind.  4S6,  28 
X.  E.  94,  13  L.  R.  A.  647;  Hanson  v.  Electric 
Light  Co.,  86  la.  722,  48  N.  W.  1005,  53  N. 
W.  84;  but.it  must  have  legislative  author- 
ity to  grant  such  franchise;  Brush  Electric 
Light  Co.  v.  Electric  Light  Co.,  5  Ohio  Cir. 
Ct.  340;  Grand  Rapids  E.  L.  &  P.  Co.  v.  Gas 
Co.,  33  Fed.  659;  and  in  Iowa  it  must  be 
submitted  to  a  vote  of  qualified  electors; 
Hanson  v.  Electric  Light  Co.,  S6  la.  722, 
48  N.  W.  1005,  53  N.  W.  84;  City  of  Keo- 
kuk v.  Electric  Co.,  90  la.  67,  57  N.  W.  689. 
It  may  confer  the  right  on  one  company  to 
use  poles  erected  by  another  company ;  Cit- 
izens' Electric  Light  &  Power  Co.  v.  Sands, 
95  Mich.  551,  55  N.  W.  452,  20  L.  R.  A.  411; 
and  may  fix  the  compensation  to  the  latter 
for  their  use;  Toledo  Electric  St.  Ry.  Co. 
v.  Power  Co.,  10  Ohio  Cir.  Ct.  531;  but  un- 
less the  limit  of  such  use  is  fixed  and  the 
manner  of  stringing  the  wires  prescribed 
such  a  permission  is  unreasonable  and  void; 
Citizens'  Electric  Light  &  Power  Co.  v. 
Sands,  95  Mich.  551,  55  N.  W.  452,  20  L.  R. 
A.  411;  and  a  company  will  be  enjoined 
from  use  of  another's  poles  without  permis- 
sion from  the  city,  the  court,  or  the  other 
company;  Hauss  Electric  Lighting  Power 
Co.  v.  Electric  Co.,  23  Wkly.  Law  Bui.  137. 
A  contract  with  a  gas  company  to  light  the 
streets  with  gas  was  held  not  to  deprive  the 
city  of  the  power  to  contract  with  another 
company  to  furnish  electric  lights  for  the 
same  purpose;  Parkersburg  Gas  Co.  v. 
Parkersburg,  30  W.  Va.  435,  4  S.  E.  650; 
'Saginaw  Gas-Light  Co.  v.  City  of  Saginaw, 
28  Fed.  529.     The  right  of  the  city  to  grant 


franchises  for  electric  lighing  carries  wi  h 
it  the  right  to  purchase  or  operate  a  plant 
even  if  there  be  an  existing  organized  cor- 
poration and  the  city  violates  no  contract 
by  so  doing;  Thompson-Ilo\iston  Electric 
Co.  v.  City  of  Newton,  42  Fed.  723.  As  a 
rule,  however,  the  statutes  provide  for  the 
purchase  of  an  existing  plant  by  the  munic- 
ipality and  for  arbitration  in  case  of  dis- 
agreement as  to  the  price.  In  Massachu-, 
setts  an  existing  company  is  not  compelled 
to  sell  its  property  to  the  town;  Citizens' 
Gas  Light  Co.  v.  Wakefield,  161  Mass.  432, 
37  N.  E.  444,  31  L.  R.  A.  457. 

Conflicting  Electrical  Companies.  Where 
a  telegraph  and  an  electric  light  company 
had  each  obtained  a  franchise  for  the  use 
of  the  same  street,  it  was  held  that  the 
company  which  first  obtained  the  franchise 
was  entitled  to  priority,  and  the  other  com- 
pany must,  so  adjust  its  wires  as  to  prevent 
danger  from  juxtaposition  or  interference 
with  the  business  of  the  first  company; 
Western  Union  Tel.  Co-  v.  Light  Co.,  46  Mo. 
App.  120;  and  that  where  the  street  was 
already  occupied  by  the  telegraph  company 
the  electric  light  company  would  be  enjoin- 
ed from  placing  its  wires  so  near  as  to  in- 
terfere with  the  transmission  of  messages ; 
id.  In  the  case  of  a  telephone  and  an  elec- 
tric light  company,  both  having  valid  fran- 
chises, the  telephone  company  was  refused 
an  injunction  against  the  latter  company  on 
the  ground  that  they  had  first  occupied  the 
streets,  but  on  streets  not  occupied  by  ei- 
ther company,  the  electric  light  company 
was  enjoined  from  using  the  same  side  of 
the  street  for  lights  and  from  stringing 
wires  within  such  a  distance  as  to  injure 
the  service  of  the  telephone  company;  Ne- 
braska Telephone  Co.  v.  Gas  &  Electric 
Light  Co.,  27  Neb.  284,  43  N.  W.  126;  12 
Ont.  571;  Paris  Electric  Light  &  Ry.  Co. 
v.  Telegraph  &  Telephone  Co.  (Tex.)  27  S. 
W.  902.  If  two  electric  light  companies 
have  the  use  of  the  same  street,  the  first  to 
occupy  them  has  the  prior  right,  and  the 
second  company  will  be  restrained  from 
stringing  its  wires  so  near  as  to  interfere 
with  the  business  of  the  first  company  or 
cause  danger  to  the  public;  Consolidated 
Electric  Light  Co.  v.  Electric  Light  &  Gas 
Co.,  94  Ala.  372,  10  South.  440  (where  the 
decision  was  based  rather  on  the  ground 
that  such  juxtaposition  of  the  wires  was 
dangerous  to  public  safety).  An  electric 
light  corporation,  contracting  to  light  a 
building,  must  exercise  the  highest  degree  of 
care  in  the  installation  of  its  wires  and 
fixtures,  and  is  liable  for  injuries  sustained 
by  a  person  handling  in  the  usual  way  an 
ordinary  incandescent  light  bulb;  Alexan- 
der v.  Light  Co.,  209  Pa.  571,  5S  Atl.  106S, 
67  L.  R.  A.  475;  to  the  same  effect,  Gilbert 
v.  Electric  Co.,  93  Minn.  99,  100  N.  W.  653, 
106  Am.  St.  Rep.  430;  Memphis  Consol.  Gas 
&  Electric  Co.  v.  Letson,  135  Fed.  969,  68  C. 


ELECTRIC  COMPANIES 


999 


ELECTRIC  COMPANIES 


C.  A.  453;  Southern  Telegraph  &  Telephone 
Co.  v.  Evans,  54  Tex.  Civ.  App.  63,  116  S. 
W.  41S;  such  a  company  must  use  reason- 
able care  to  prevent  a  secondary  current 
from  being  charged  with  a  high  voltage 
current ;  Witmer  v.  Electric  Light  &  Power 
Co.,  1S7  N.  Y.  572,  80  N.  E.  1122;  and  is 
bound  to  see  that  its  fixtures  are  securely 
attached;  Fish  v.  Electric  Light  &  Power 
Co.,  189  X.  Y.  336,  82  X.  E.  150,  13  L.  It.  A. 
(X.  S.i  L'JO;  and  to  keep  the  wires  properly 
insulated;  Griffin  v.  Light  Co.,  164  Mass. 
492,  41  N.  E.  675,  32  L.  R.  A.  400,  49  Am. 
St.  Rep.  477.  The  test  of  the  liability  of  a 
company  is  whether  injury  to  persons  might 
reasonably  be  anticipated;  Guinn  v.  Tele- 
phone Co.,  72  N.  J.  L.  276,  62  Atl.  412,  3 
L.  R.  A.  (N.  S.)  9S8,  111  Am.  St.  Rep.  668. 
Where  the  apparatus  is  installed  by  other 
parties,  the  company  has  been  held  bound 
to  make  a  reasonable  inspection  of  it  be- 
fore furnishing  current;  Hoboken  Land  & 
Imp.  Co.  v.  Electric  Co.,  71  N.  J.  L.  430, 
58  Atl.  1082;  but  they  are  held  not  lia- 
ble for  defective  apparatus  where  other  per- 
sons did  the  work  of  wiring;  Harter  v. 
Power  Co.,  324  la.  500,  100  N.  W.  508;  Brun- 
elle  v.  Light  Corp.,  188  Mass.  493,  74  N.  E. 
676;  National  Fire  Ins.  Co.  v.  Electric  Co., 
16  Colo.  App.  86,  63  Pac.  949;  Minneapolis 
General  Electric  Co.  v.  Cronon,  166  Fed.  651, 
92  C.  C.  A.  345,  20  L.  R.  A.  (N.  S.)  816.  A 
city  ordinance  requiring  all  splices  or  joints 
on  electric  wires  to  be  perfectly  insulated 
is  a  contract  with  every  inhabitant  fixing  a 
standard  of  duty,  failure  to  observe  which 
will  constitute  negligence ;  Clements  v.  Light 
Co.,  44  La.  Ann.  692,  11  South.  51,  16  L.  R. 
A.  43,  32  Am.  St.  Rep.  348. 

The  liability  extends  to  trespassers ;  Nel- 
son v.  Lighting  &  Water  Co.,  75  Conn.  548, 
54  Atl.  303 ;  Newark  Electric  Light  &  Power 
Co.  v.  Garden,  78  Fed.  74,  23  C.  C.  A.  649,  37 
L.  R.  A.  725;  Lynchburg  Telephone  Co.  v. 
Booker,  103  Va.  595,  50  S.  E.  148;  contra, 
Augusta  Ry.  Co.  v.  Andrews,  89  Ga.  653,  16 
S.  E.  203;  McCaughna  v.  Electric  Co.,  129 
Mich.  407,  89  N.  W.  73,  95  Am.  St  Rep.  441 ; 
Stark  v.  Traction  &  Lighting  Co.,  141  Mich. 
575,  104  N.  W.  1100,  1  L.  R.  A.  (N.  S.)  822; 
Cumberland  Telegraph  &  Telephone  Co.  v. 
Martin's  Adm'r,  110  Ky.  554,  76  S.  W.  394, 
77  S.  W.  718,  63  L.  R.  A.  469,  105  Am.  St. 
Rep.  229 ;  Minneapolis  General  Electric  Co. 
v.  Cronon,  166  Fed.  651,  92  C.  C.  A.  345,  20 
L.  R.  A.  (N.  S.)  816. 

Equity,  at  the  suit  of  a  state,  will  enjoin 
an  electric  railway  company  from  permitting 
the  escape  of  electricity  into  the  ground,  in- 
juring municipal  water  pipes ;  Dayton  v. 
Ry.  Co.,  26  Ohio  Cir.  Ct  R.  736.  One  who 
discharges  electricity  into  the  earth  is  lia- 
ble for  damages  caused  by  the  current  just 
as  if  he  had  discharged  a  stream  of  water. 
Where  a  railway  company  did  so  under  or- 
der of  the  Board  of  Trade  and  used  the  best 


known  system,  it  was  not  responsible  for  the 
injury;    [1893]  2  Ch.   L86. 

Equity  cannot  prescribe  by  injunction  a 
particular  system  of  circuit  or  negative  re- 
turn of  the  electric  current  to  be  used  by 
an  electric  railway  company,  although  it  is 
shown  that  the  system  in  use  results  in  con- 
tinuous injury  to  the  water  pipes  of  a  water 
company  ;  but  it  will  act  by  injunction  upon 
the  continuance  of  the  injury,  leaving  it  to 
the  discretion  of  the  company  to  prevent  it. 
In  this  case  it  appeared  that  the  railway 
company's  system  could  not  entirely  pr< 
electrolysis,  but  that  it  was  suggesting  other 
means  which  would  practically  prevent  seri- 
ous injury.  The  court  enjoined  the  continu- 
ance of  the  injury,  but  left  the  defendant 
free  to  adopt  the  proper  system  within  a 
reasonable  time;  Peoria  Waterworks  Co.  v. 
R.  Co.,  1S1  Fed.  990  (C.  C.  111.),  per  San- 
born, C.  J. 

See  generally  Causa  Proxima;  Joyce,  Elec- 
tric Law;  Eminent  Domain;  Highways; 
Impairing  Obligation  of  Contracts; 
Streets;    TELEGRArn;    Telephone. 

ELECTROCUTION.  A  method  of  punish- 
ment of  death  inflicted  by  causing  to  pass 
through  the  body  of  the  convicted  person  a 
current  of  electricity  of  sufficient  force  and 
continuance  to  cause  death.  See  1  Witth.  & 
Beck.  Med.  Jur.  663. 

It  was  enacted  in  New  York  in  18SS,  in 
Ohio  in  1S96,  and  in  Pennsylvania  in  1913, 
and  in  one  or  two  other  states. 

Punishment  by  electrocution  is  not  within 
the  meaning  of  the  Constitution  of  the  Unit- 
ed States,  which  prohibits  the  infliction  of 
unusual  and  cruel  punishments  ;  and  while 
the  infliction  of  the  death  penalty  by  a  new 
agency  is  unusual,  the  adoptiou  of  such  an 
agency  which  is  not  a  certainly  prolonged  or 
extreme  procedure  is  not  violative  of  this 
constitutional  provision;  People  v.  Durston. 
119  N.  Y.  569,  24  N.  E.  6,  7  L  R.  A.  715,  16 
Am.  St.  Rep.  859. 

This  act  of  New  York  is  not  repugnant  to 
the  Constitution  of  the  United  States  when 
applied  to  a  convict  who  committed  the  crime 
after  the  act  took  effect;  In  re  Kemmler, 
136  U.  S.  436,  10  Sup.  Ct.  930,  34  L.  Ed.  519. 
See  Ex  parte  Mirzan,  119  U.  S.  5S4,  7  Sup. 
Ct  341,  30  L.  Ed.  513. 

ELECTROLYSIS.  See  Electrical  Compa- 
nies. 

ELEEMOSYNARIUS  (Lat).  An  almoner. 
There  was  formerly  a  lord  almoner  to  the 
kings  of  England,  whose  duties  are  describ- 
ed in  Fleta,  lib.  2,  cap.  23.  A  chief  i 
who  received  the  eleemosynary  rents  and 
gifts,  and  in  due  method  distributed  them  to 
pious  and  charitable  uses.     Cowed. 

ELEEMOSYNARY  CORPORATIONS.  Such 
private  corporations  as  are  instituted  for  pur- 
poses of  charity,  their  object  being  the  dis- 
tribution of  the  bounty   of  the   founder   of 


ELEEMOSYNARY  CORPORATIONS      1000 


ELEGIT 


them  to  such  persons  as  he  directed.  Of  this 
kind  are  hospitals  for  the  relief  of  the  im- 
potent, indigent,  sick,  and  deaf  or  dumb; 
Ang.  &  A.  Corp.  §  39;  American  Asylum  at 
Hartford  v.  Bank,  4  Conn.  172,  10  Am.  Dec. 
112 ;  McKim  v.  Odom,  3  Bland  (Md.)  407 ;  1 
Ld.  Raym.  5;  2  Term  346.  The  nature  of 
eleemosynary  corporations  is  discussed  in 
the  Dartmouth  College  case.  They  are  in 
no  sense  ecclesiastical  corporations  as  under- 
stood in  the  classification  of  Blackstone. 
Marshall,  C.  J.,  said,  in  distinguishing  the 
college  from  a  public  corporation  employed 
for  the  purposes  of  government,  that  it  was 
in  fact  a  private  eleemosynary  institution  en- 
dowed with  capacity  to  take  property  for 
objects  unconnected  with  government,  whose 
funds  were  bestowed  by  individuals  on  the 
faith  of  the  charter — none  the  less  so  be- 
cause for  public  education;  Dartmouth  Col- 
lege v.  Woodward,  4  Wheat.  518,  630,  4  L. 
Ed.  629.  And  in  the  same  case,  Story,  J., 
discussed  at  length  the  nature  of  these  cor- 
porations, defining  them  as  "such  as  are  con- 
stituted for  the  perpetual  distribution  of  the 
free  alms  and  bounty  of  the  founder  in  such 
manner  as  he  has  directed";  and  then,  after 
pointing  out  the  division  of  corporations  into 
public  and  private,  he  goes  on  to  explain  that 
eleemosynary  corporations  are  private  corpo- 
rations although  dedicated  to  general  char- 
ity, and  that  the  argument  that  because  the 
charity  is  public,  the  corporation  is  public, 
"manifestly  confounds  the  popular  with  the 
strictly  legal  sense  of  the  terms."  He  also 
calls  attention  to  the  fact  that  "to  all 
eleemosynary  corporations  a  visitorial  pow- 
er attaches  as  a  necessary  incident."  See 
Visitation. 

In  the  same  opinion  it  is  said  that  a  pri- 
vate eleemosynary  corporation,  when  created 
by  the  charter  of  the  crown,  is  subject  to  no 
other  control  of  the  crown  unless  power  be 
reserved  for  that  purpose,  and  this  he  char- 
acterizes as  "one  of  the  most  stubborn  and 
well-settled  doctrines  of  the  common  law"  ; 
but  nevertheless  such  corporations,  like  all 
others,  are  subject  to  the  general  law  of  the 
land.  See,  also,  Society  for  Propagation  of 
Gospel  v.  New  Haven,  8  Wheat.  (U.  S.)  464, 
5  L.  Ed.  662 ;  1  Bla.  Com.  471. 

"In  the  English  law  corporations  are  divided  into 
ecclesiastical  and  lay;  and  lay  corportions  are 
again  divided  into  eleemosynary  and  civil.  It  is 
doubtful  how  far  clear  conceptions  of  the  law  are 
promoted  by  keeping  in  mind  these  divisions.  They 
seem,  for  us  at  least,  to  have  an  historical,  rather 
than  a  practical,  value.  In  a  country  where  the 
church  is  totally  disassociated  from  the  state,  there 
is  little  room  for  a  division  of  corporations  into 
ecclesiastical  and  lay  ;  and  while  charitable  corpo- 
rations have  many  features  which  distinguish  them 
from  other  private  corporations,  as  will  hereafter 
appear,  it  is  very  seldom  that  the  word  'civil'  is 
used  in  our  American  books  of  reports  in  order  to 
distinguish  corporations  other  than  charitable." 

ELEGIT  (Lat,  eligere,  to  choose).  A  writ 
of  execution  directed  to  the  sheriff,  com- 
manding him  to  make  delivery  of  a  moiety  of 


the  party's  land  and  all  his  goods,  beasts  of 
the  plough  only  excepted. 

The  sheriff,  on  the  receipt  of  the  writ, 
holds  an  inquest  to  ascertain  the  value  of 
the  lands  and  goods  he  has  seized,  and  then 
they  are  delivered  to  the  plaintiff,  who  re- 
tains them  until  the  whole  debt  and  damages 
have  been  paid  and  satisfied.  During  that 
term  he  is  called  tenant  by  eligit ;  Co.  Litt. 
2S9.     See   Pow.    Mort. ;    Wats.    Sheriff   206; 

1  C.  B.  N.  S.  568 ;  3  Holdsw.  Hist.  E.  L.  113 ; 

2  Poll.  &  Maitl.  122. 

The  name  was  given  because  the  plaintiff 
has  his  choice  to  accept  either  this  writ  or 
a  ft.  fa. 

By  statute,  in  England,  the  sheriff  is  to 
deliver  the  whole  estate  instead  of  the  half; 
see  3  Bla.  Com.  418 ;  and  by  act  of  1883  it  no 
longer  extends  to  goods.  The  writ  is  still  in 
use  in  the  United  States,  to  some  extent,  and 
with  somewhat  different  modifications  in  the 
various  states  adopting  it ;  4  Kent  431,  436 ; 
McCance  v.  Taylor,  10  Gratt  (Va.)  5S0;  Mor- 
ris v.  Ellis,  3  Ala.  560. 

ELEMENTS.  A  term  popularly  applied  to 
fire,  air,  earth  and  water,  anciently  suppos- 
ed to  be  the  four  simple  bodies  of  which  the 
world  was  composed.  Encyc.  Diet.  Often  ap- 
plied in  a  particular  sense  to  wind  and  wa- 
ter, as  "the  fury  of  the  elements."  Gent. 
Diet.  It  has  been  said  that  "damages  by  the 
elements,"  and  "damages  by  the  act  of  God," 
are  convertible  expressions  ;  Polack  v.  Pioche, 
35  Cal.  416,  95  Am.  Dec.  115. 

ELEVATED   RAILWAYS.    See  Railroads. 

ELEVATOR.  A  building  containing  one 
or  more  mechanical  elevators,  especially  a 
warehouse  for  the  storage  of  grain ;  a  hoist- 
ing apparatus ;  a  lift ;  a  car  or  cage  for  lift- 
ing and  lowering  passengers  or  freight  in  a 
hoistway.    Cent.  Diet. 

A  landlord  who  runs  an  elevator  for  the 
use  of  his  tenants  and  their  visitors  thereby 
becomes  a  common  carrier ;  Goodsell  v.  Tay- 
lor, 41  Minn.  207,  42  N.  W.  873,  4  L.  R.  A. 
673,  16  Am.  St.  Rep.  700;  Morgan  v.  Saks, 
143  Ala.  139,  38  South.  848;  Mitchell  v. 
Marker,  62  Fed.  139,  10  C.  C.  A.  306,  25  L. 
R.  A.  33 ;  Edwards  v.  Burke,  36  Wash.  107, 
78  Pac.  610;  Lee  v.  Knapp  &  Co.,  155  Mo. 
610,  56  S.  W.  458;  Fox  v.  Philadelphia,  208 
Pa.  127,  57  Atl.  356,  65  L.  R.  A.  214;  Ober- 
felder  v.  Doran,  26  Neb.  118,  41  N.  W.  1094, 
18  Am.  St.  Rep.  771;  Walsh  v.  Cullen,  235 
111.  91,  85  N.  E.  223,  18  D.  R.  A.  (N.  S.)  911. 
He  is  charged  with  the  highest  degree  of 
care  which  human  foresight  can  suggest, 
both  as  to  the  machinery  and  the  conduct  of 
his  servants;  Marker  v.  Mitchell,  54  Fed. 
637;  Treadwell  v.  Whittier,  80  Cal.  595,  22 
Pac.  266,  5  L.  R.  A.  498,  13  Am.  St.  Rep.  175. 
That  such  a  carrier  of  passengers  is  not  an 
insurer,  but  is  required  to  exercise  the  high- 
est degree  of  care;  Mitchell  v.  Marker,  62 
Fed.   139,  10  C.  C.  A.  306,  25  L.   R.  A.  33; 


ELEVATOR 


1001 


ELEVATOR 


Tousey  v.  Roberts,  114  N.  T.  312,  21  N.  E. 
399,  11  Am.  St.  Rep.  655;  Edwards  v.  Burke, 
36  Wash.  107,  7S  Pac.  610.  Other  cases  do 
not  subject  him  to  the  same  responsibility 
as  common  carriers;  Edwards  v.  Building 
Co.,  27  R.  I.  248,  61  AM.  646,  2  L.  R.  A.  (N. 
S.)  744,  114  Am.  St.  Rep.  37,  8  Ann.  Cas. 
974;  Griffen  v.  Ma  nice,  166  N.  Y.  197,  59  N. 
E.  925,  52  L.  R.  A.  922,  82  Am.  St.  Rep.  630; 
Seaver  v.  Bradley,  17!)  Mass.  329,  60  N.  B. 
70r,.  SS  Am.  St.  Bep.  384. 

Where  the  owner  is  in  the  habit  of  permit- 
ting a  person  to  accompany  freight  on  an 
elevator,  he  owes  him  the  duty  of  a  carrier; 
Orcutt  v.  Building  Co.,  201  Mo.  424,  99  S.  W. 
1062,  8  L.  R.  A.  (N.  S.)  929.  Where  a  mu- 
nicipal ordinance  imposed  upon  owners  of 
elevators  the  duty  to  employ  competent  per- 
sons, the  owner  of  an  apartment  house  was 
held  liable  for  injuries  to  the  child  of  his 
tenant,  who,  finding  the  elevator  unguarded, 
attempted  to  run  it;  Shellaberger  v.  Fisher, 
143  Fed.  937,  75  C.  C.  A.  9,  5  L.  R.  A.  (N. 
S.)  250.  A  hotel-keeper  owes  the  same  duty 
to  persons  visiting  his  guests,  and,  in  gen- 
eral, to  all  persons  lawfully  in  the  hotel  and 
in  the  elevator,  as  to  his  guests;  McCracken 
v.  Meyers,  75  N.  J.  L.  935,  68  Atl.  805,  16  L. 
R.  A.  (N.  S.)  290,  citing  Siggins  v.  McGill, 
72  N.  J.  L.  263,  62  Atl.  411,  3  L.  R.  A.  (N. 
S.)   316,  111  Am.  St.  Rep.  666. 

The  right  of  any  person  to  ride  on  an  ele- 
vator is  held  to  be  based  on  the  implied  in- 
vitation which  the  owner  is  deemed  to  have 
extended  to  all  who  have  business  on  his 
premises ;  such  owner  must  see  that  the 
premises  are  in  a  reasonable,  safe,  condition  ; 
the  measure  of  duty  is  reasonable  care  and 
prudence;  Griffen  v.  Manice,  166  N.  Y.  197, 
59  X.  E.  925,  52  L.  R.  A.  922,  82  Am.  St.  Rep. 
630;  Burgess  v.  Stowe,  134  Mich.  204,  96  N. 
W.  29. 

A  hotel-keeper  is  not  bound  to  the  same 
degree  of  care  with  respect  to  his  employes 
as  to  his  guests  in  operating  his  elevator. 
His  duty  as  to  them  is  ascertained  by  the 
general  rules  governing  the  relation  of  mas- 
ter and  servant.  In  Illinois,  where  the  pro- 
prietor of  an  elevator  is  held  to  be  a  carrier 
of  passengers;  Hodges  v.  Percival,  132  111. 
53,  23  N.  E.  423;  Springer  v.  Ford,  1S9  111. 
430,  59  N.  E.  953,  52  L.  R.  A.  930,  82  Am. 
St.  Rep.  464;  Beidler  v.  Branshaw,  200  111. 
425,  65  N.  E.  1080;  Masonic  Fraternity  Tem- 
ple Ass'n  v.  Collins,  210  111.  482,  71  N.  E. 
396;  yet  where  a  waitress  was  injured  on  a 
hotel  elevator,  the  proprietor  was  held  not 
to  owe  her  the  duty  of  a  common  carrier; 
Walsh  v.  Cullen,  235  111.  91,  85  N.  E.  223,  18 
L.  R.  A.  (N.  S.)  911.  To  the  same  effect, 
Sievers  v.  Lumber  Co.,  151  Ind.  642,  50  N.  E. 
S77.  52  N.  E.  399;  McDonough  v.  Lanpher, 
55  Minn.  501,  57  N.  W.  152,  43  Am.  St  Bep. 
541. 

The  owner  of  an  office  building  has  been 
held  not  to  owe  the  duty  of  keeping  closed 


the  doors  to  the  elevator  wells  in  respect  to 
one  who  enters  the  building  seeking  informa- 
tion about  one  not  a  tenant  of  or  employed 
in  it,  since  he  is  a  mere  licensee;  Stanwood 
v.  Clancey,  100  Me.  72,  75  AM.  293;  Plummer 
v.  Dill,  L56  Mass.  426,  ::i  X.  B.  128,  32  Am. 
St.  Rep.  463;  as  such  he  goes  into  the  build- 
ing at  his  own  risk  and  is  bound  to  take  the 
premises  as  he  finds  them;  Beehler  v.  Dan- 
iels, 18  B.  I.  503,  29  Atl.  6,  27  L.  R.  A.  512, 
49  Am.  St.  Rep.  790 ;  Faurot  v.  Grocery  Co., 
21  Okl.  104,  95  Pac.  403,  17  L.  R,  A 
136;  Faris  v.  Hoberg,  134  Ind.  269,  33  X.  B. 
1028,  39  Am.  St,  Rep.  261.  This  rule  was 
applied  where  a  policeman,  in  the  exercise 
of  his  duty  to  protect  the  property  of  an  ex- 
press company  from  strikers,  was  killed 
from  falling  down  an  elevator  shaft;  Casey 
v.  Adams,  234  111.  350,  84  N.  E.  933,  17  L.  R. 
A.  (N.  S.)  776,  123  Am.  St.  Rep.  105;  and 
also  where  a  fireman  entered  a  building  for 
the  purpose  of  protecting  property  therein 
from  fire  and  was  injured  while  using  an 
elevator  in  such  building ;  Gibson  v.  Leonard, 
143  111.  182,  32  N.  E.  182,  17  L.  R.  A.  588. 
36  Am.  St.  Rep.  376 ;  and  where  the  wife  of 
the  janitor  of  a  building  used  the  elevator 
for  the  purpose  of  showing  a  tenant  therein 
the  roof;  Billows  v.  Moors,  162  Mass.  42,  37 
N.  E.  750. 

As  to  licensees  by  invitation  or  affirmative 
consent,  it  is  held  that  the  owner  of  an  ele- 
vator owes  the  duty  of  exercising  ordinary 
care;  Muench  v.  Heinemann,  119  Wis.  441, 
96  N.  W.  800.  Thus  a  child,  who  with  the 
knowdedge  or  implied  consent  of  an  elevator 
operator,  rides  on  the  top  of  the  car,  is  held 
not  a  trespasser;  Davis'  Adm'r  v.  Trust  Co., 
127  Ky.  800,  106  S.  W.  843,  15  L.  B.  A.  (N. 
S.)  402.  As  to  licensees  by  permission  or  on 
mere  sufferance,  the  owner  owes  no  duty  ex- 
cept to  refrain  from  acts  of  actual  negli- 
gence; Muench  v.  Heinemann,  119  Wis.  ill, 
96  N.  W.  800;  Faris  v.  Hoberg,  134  Ind.  269, 
33  N.  E.  1028,  39  Am.  St.  Bep.  201;  Amerine 
v.  Porteous,  105  Mich.  347,  63  N.  W.  300; 
McCarvell  v.  Sawyer,  173  Mass.  540,  54  N. 
E.  259,  73  Am.  St.  Rep.  318;  MeManus  v. 
Thing.  104  Mass.  362.  SO  N.  E.  487:  Leavitt 
v.  Shoe  Co.,  69  N.  H.  597,  45  AM.  558.  Where 
one  has  been  forbidden  to  use  the*  elevator 
and  sustains  an  injury,  he  cannot  recover; 
Ferguson  v.  Truax.  132  Wis.  -ITS,  mi  X.  W. 
395,  111  N.  W.  657,  112  X.  W.  513,  14  L.  R.  A. 
(X.  S.)   350,  13  Ann.  Cas.  1092. 

An  elevator  should  have  constant  care  and 
inspection;  Bier  v.  Mfg.  Co.,  130  Pa.  4  1<;.  18 
Atl.  637;  McGuigan  v.  Beatty,  1S6  Pa.  329, 
40  Atl.  490 ;  that  the  machinery  was  oiled 
once  a  week  and  the  elevator  looked  at  by  a 
fellow  servant  does  not  fulfil  the  require- 
ment that  it  should  be  inspected  regularly; 
Swenson  v.  R.  Co.,  78  App.  Div.  379,  80  N. 
Y.  Supp.  2S1 ;  or  where  it  has  been  inspected 
two  weeks  before  an  accident,  and  a  defect 
overlooked;   Corn   Products   Refining   Co.    v. 


ELEVATOR 


1002 


ELIGIBILITY 


Kins,  168  Fed.  802,  94  C.  C.  A.  304 ;  or  where 
an  accident  was  caused  by  the  breaking  of  a 
shaft,  the  defective  condition  of  which  might 
bare  been  discovered  by  inspection;  Rein- 
bardt  v.  Laid  Co.,  74  N.  J.  L.  9,  G4  Atl.  990. 
But  one  is  not  liable  for  an  accident  to  an 
employe  if  he  regularly  employs  a  competent 
firm  to  inspect  the  elevator;  Young  v.  Stable 
Co.,  193  N.  Y.  188,  86  N.  E.  15,  21  L.  R.  A. 
(N.  S.)  592,  127  Am.  St.  Rep.  939.  In  case 
of  a  casualty,  it  is  not  enough  to  show  that 
the  elevator  is  one  of  a  kind  in  ordinary  use ; 
McCormick  Harvesting  Machine  Co.  v.  Bur- 
andt,  136  111.  170,  26  N.  E.  588.  But  the  ab- 
sence of  safety  appliances  is  said  not  to  be 
conclusive  evidence  of  negligence;  Shattuck 
v.  Rand,  142  Mass.  83,  7  N.  E.  43.  An  eleva- 
tor is  not  supposed  to  be  a  place  of  danger, 
to  be  approached  with  great  caution ;  Zieman 
v.  Mfg.  Co.,  90  Wis.  497,  63  N.  W.  1021 ;  but 
when  the  door  is  opened  a  passenger  may 
enter  it  without  stopping  to  make  a  special 
examination ;  Tousey  v.  Roberts,  114  N.  Y. 
312,  21  N.  E.  399,  11  Am.  St.  Rep.  655. 

See  9  L.  R.  A.  640,  note ;  Mitchell  v.  Mark- 
er, 62  Fed.  139,  10  C.  C.  A.  306,  25  L.  R.  A. 
33 ;  Webb,  Elevators. 

The  business  of  handling  grain  in  eleva- 
tors is  of  such  a  nature  as  to  subject  it  to 
regulations  which  would  be  entirely  unjusti- 
fiable if  applied  to  a  purely  private  business. 
Because  the  business  is  of  a  quasi-public  na- 
ture, even  the  owner  of  a  country  elevator, 
who  buys  for  himself  alone  and  is  his  own 
grader  and  weighmaster,  may  be  required 
to  secure  a  license  from  the  state ;  State  v. 
W.  W.  Cargill  Co.,  77  Minn.  223,  79  N.  W. 
962 ;  W.  W.  Cargill  Co.  v.  Minnesota,  180  U. 
S.  402,  21  Sup.  Ct.  423,  45  L.  Ed.  619.  For 
the  same  reason  the  legislature  may  make 
a  weighmaster's  certificate  prima  facie  evi- 
dence of  what  is  stated  therein ;  Vega  Steam- 
ship Co.  v.  Elevator  Co.,  75  Minn.  308,  77  N. 
W.  973,  43  L.  R.  A.  843,  74  Am.  St.  Rep.  484. 

As  to  grain  in  a  grain  elevator,  see  Confu- 
sion of  Goods. 

ELIGIBILITY.  The  constitution  of  the 
United  States  provides  that  no  person  hold- 
ing any  office  under  the  United  States  shall 
be  a  member  of  either  house.  The  accept- 
ance by  a  member  of  congress  of  a  commis- 
sion as  a  volunteer  in  the  army  vacates  his 
seat ;  CI.  &  H.  122,  395,  637.  But  by  a  deci- 
sion of  the  second  comptroller  of  the  treas- 
ury, of  Feb.  24,  1894,  it  was  held  that  there 
was  no  incompatibility  of  office  between  that 
of  a  member  of  the  house  of  representatives 
and  the  military  office  held  by  an  officer  of 
the  United  States  army  on  the  retired  list, 
and  that  he  was  entitled  to  pay  for  both 
offices.  A  centennial  commissioner  holds  an 
office  of  trust  or  profit  under  the  United 
States,  and  is  thereby  ineligible  as  a  presi- 
dential elector;  In  re  Corliss,  11  R.  I.  638, 
23  Am.  Rep.  538.  A  state  cannot  by  statute 
provide  that  certain  state  officers  are  ineligi- 


ble to  a  federal  office;  Turney  v.  Marshall, 
1  Bartl.  167;  Trumbull's  Election,  1  Bartl. 
619. 

Duelling  has  been  made  in  some  states  a 
disqualification  for  office ;  see  Duelling.  In 
Kentucky,  it  was  held  that  the  doing  of  any 
of  the  prohibited  acts  was  a  disqualification 
for  office  without  a  previous  conviction ; 
Cochrane  v.  Jones,  14  Am.  L.  Reg.  N.  S.  22 ; 
but  this  opinion  has  been  questioned  in  a 
note  to  that  case.     See  McCrary,  Elect.  189. 

An  alien  cannot,  even  in  the  absence  of 
any  provision  forbidding  it,  hold  an  office; 
State  v.  Van  Beek,  87  la.  569,  54  N.  W.  525, 
19  L.  R.  A.  622,  43  Am.  St.  Rep.  397.  See 
Cooley,  Const.  Lim.  748,  n. ;  but  he  may  be 
elected  to  an  office ;  State  v.  Murray,  28  Wis. 
96,  9  Am.  Rep.  489 ;  State  v.  Trumpf,  50  Wis. 
103,  5  N.  W.  876,  6  N.  W.  512.  And  mem- 
bers elect  of  congress,  who  were  ineligible 
on  account  of  participation  in  the  rebellion, 
have  been  admitted  to  a  seat,  their  disquali- 
fication having  been  subsequently  removed; 
McCrary,  Elect.  193. 

The  word  eligibility,  used  in  connection 
with  an  office,  where  there  are  no  explana- 
tory words  indicating  that  it  is  used  with 
reference  to  the  time  of  election,  refers  to 
the  qualification  to  hold  the  office  rather 
than  to  be  elected ;  Bradfield  v.  Avery,  16 
Idaho  769,  102  Pac.  687,  23  L.  R.  A.  (N.  S.) 
1228;  Hoy  v.  State,  168  Ind.  506,  81  N.  E. 
509,  11  Ann.  Cas.  944. 

As  to  the  effect  of  the  ineligibility  of  the 
candidate  having  the  highest  number  of 
votes,  see  Election. 

ELIGIBLE.  This  term  relates  to  the  ca- 
pacity of  holding  as  well  as  that  of  being 
elected  to  an  office ;  Carson  v.  McPhetridge. 
15  Ind.  327.  lSee  Searcy  v.  Grow,  15  Cal. 
117;  State  v.  Clarke,  3  Nev.  566;  State  v. 
Smith,  14  Wis.  497. 

ELISORS.  Two  persons  appointed  by  the 
court  to  return  a  jury  when  the  sheriff  and 
coroner  have  been  challenged  as  incompetent, 
either  because  they  are  parties  to  the  suit, 
or  are  related  to  either  party.  3  Bla.  Com. 
354;  Allen  v.  Com.,  12  S.  W.  582,  11  Ky.  L. 
Rep.  555 ;  or  because  they  are  partial ;  5 
Bac.  Abr.  318;  3  East  141;  Fortesc.  de  Laudi- 
bus  LL.  53;  Ale.  &  Nap.  113;  or  interested; 
Tidd,  Prac.  723,  780;  People  v.  Fellows,  122 
Cal.  233,  54  Pac.  830;  State  v.  Hultz,  106 
Mo.  41,  16  S.  W.  940;  Harriman  v.  State,  2 
G.  Greene  (la.)  270.  They -return  the  writ 
of  venire  directed  to  them  with  a  panel  of 
the  jurors'  names,  and  their  return  is  final 
and  no  challenge  is  allowed  to  the  array. 
But  a  party  may  have  his  challenge  to  the 
poll ;  Co.  Litt.  158  a. 

Elisors  may  be  appointed  to  serve  process 
other  than  that  of  returning  a  jury;  Bruner 
v.  Superior  Court,  92  Cal.  239,  28  Pac.  341. 
An  attachment  may  be  directed  to  elisors 
against  the  coroners  for  not  attaching  a 
disobedient  sheriff  who  has  not  brought  the 


ELISORS 


1003 


ELISORS 


defendant  into  court;  2  Win.  Bla.  Oil ;  2  id. 
1218;  Tidd,  Prac.  314;  or  for  nut  returning 

an  execution;  People  v.  Palmer,  1  Cow.  (N. 
Y. )  '.VI ;  hut  such  appointment  will  be  refus- 
ed where  it  is  a  matter  of  mere  service  of 
process  ;  10  Moore  266. 

Authority  to  appoint  elisors  need  not  be 
given  by  statute;  Wilson  v.  Roach,  4  Cal. 
302;  though  the  legislature  may  authorize 
the  governor  to  appoint  officers  with  the 
powers  of  sheriff  to  enforce  liquor  laws ; 
Gilmore  v.  Penobscot  County,  107  Me.  345, 
78  Atl.  454. 

Elisors  were  named  by  the  prothonotary 
and  appointed  by  the  court;  Barnes  465; 
named  by  plaintiff  and  approved  by  prothon- 
otary; 2  Win.  Bla.  911;  or  named  by  the 
master  in  the  King's  Bench,  or  prothonotary 
in  the  Common  Pleas;  Tidd,  Prac.  151. 

A  sheriff  is  incompetent  if  he  is  part  of  a 
defendant  corporation,  in  which  case  elisors 
will  he  appointed ;  1  Ir.  L.  Rec.  O.  S.  281 ; 
but  where  the  sheriff  and  coroner  were  mem- 
bers of  a  corporation  defending  another  sim- 
ilar suit  against  the  same  plaintiff,  elisors 
were  not  appointed ;  Jackson  v.  Rathbone, 
3  Cow.   (N.  Y.)    296. 

Elisors  are  usually  two  clerks  of  the  court 
or  residents  of  the  county,  and  are  sworn; 
3  Bla.  Com.  354;  Fortesc.  de  Laud.  LL.  53; 
but  a  person  residing  in  a  county  other  than 
that  in  which  the  defendant  resides  may  be 
appointed  under  peculiar  circumstances ; 
Anonymous,  23  Wend.  (N.  Y.)  102;  so  may 
one  who  has  served  under  the  sheriff  as 
bailiff  to  the  petit  jury  in  other  causes; 
State  v.  Bodly,  7  Blackf.  (Ind.)  355;  and 
only  one  need  be  appointed  to  serve  a  sum- 
mons;  Reed  v.  Moffatt,  62  111.  300;  and  he 
need  not  be  sworn;  id. 

Notice  of  the  appointment  of  elisors  must 
be  given  to  the  opposite  party;  1  Stra.  235. 

The  appointment  by  a  judge  having  com- 
petent jurisdiction  is  presumed  to  be  prop- 
er; Turner  v.  Billagram,  2  Cal.  520;  or  by  a 
clerk  to  serve  a  writ  of  replevin ;  Beach  v. 
Schmultz,  20  111.  1S5.  If  it  is  irregular,  a 
motion  to  quash  the  levy  should  be  made  ha 
the  court  to  which  the  writ  is  returnable; 
Turner  v.  Billagram.  2  Cal.  520.  It  rests  in 
the  discretion  of  the  trial  judge  and  will  not 
be  disturbed  unless  arbitrary  and  unjust ; 
State  v.  Hultz,  100  Mo.  41,  10  S.  W.  940. 
A  venire  for  a  grand  jury  was  directed  to 
elisors,  the  sheriff  being  disqualified,  and 
not  to  the  coroner;  held  legal;  State  v.  Zel- 
ler,  83  N.  J.  L.  606,  85  Atl.  237. 

Absence  of  the  coroner  from  the  parish 
when  the  sheriff  is  a  party  to  the  suit  will 
not  warrant  the  appointment  of  an  elisor; 
Whitehead  v.  Brigham,  1  La.  Ann.  317.  A 
new  sheriff  will  not  be  awarded  process, 
though  he  be  impartial,  if  it  has  already 
been  given  to  elisors;  Co.  Litt.  15Sa;  contra, 
Anonymous,  23  Wend.  (N.  Y.)  102. 
An  elisor  may  be  appointed  to  take  charge 


of  a  jury  retiring  to  deliberate  upon  a  ver- 
dict, when  both  sheriff  and  coroner  are  dis- 
qualified or  unable  to  act;  People  v.  Fellows, 
122  Cal  233,  54  Pa  Ibanks, 

117  Cal.  052,  49  Pac.   1049,  40  L.  R.  A.  269. 

By  act  of  parliao  ,e  free  ac- 

cess  to  jurors'  books  in  Ireland;  Iluband, 
Grand  Jury  in  Ireland 

See  Umfreville,  Lex  Coi  7,  241; 

Huband,  Grand  Jury  in  Ire:, 
ward,    Coroners    in    Pennsylvania    14". 

EL  KINS'   ACT.     See  Rates. 

ELL.  A  measure  of  length. 
In  old  English  the  word  signifies  arm,  which  sense 
it  still  retains  In  the  word  elbow.  Nature  has  no 
standard  of  measure.  The  cubit,  the  ell,  the  span, 
palm,  hand,  finger  (being  taken  from  the  individual 
who  uses  them),  are  variable  measures.  So  of  the 
foot,  pace,  mile,  or  mille  passuum.  See  Report  on 
Weights  and  Measures,  by  the  secretary  of  state  of 
the  United  States,  Feb.  22,  1821. 

ELLENBOROUGH'S  ACT.  An  English 
statute  (43  Geo.  III.  c.  68)  punishing  offens- 
es against  the  person.     See  Abobtion. 

EL0GIUM  (Lat).  In  Civil  Law.  A  will 
or  testament. 

EL0IGNE  (Fr.  Eloigner,  to  remove  to  a 
distance).  In  Practice.  A  return  to  a  writ 
of  replevin,  when  the  chattels  have  been  re- 
moved out  of  the  way  of  the  sheriff. 

E  LONG  AT  A.  The  return  made  by  the 
sheriff  to  a  writ  of  replevin,  when  the  goods 
have  heen  removed  to  places  unknown  to 
him.  See,  for  the  form  of  this  return,  Wats. 
Sheriff,  Appx.  c.  18,  s.  3,  p.  454 ;  3  Bla.  Com. 
143. 

On  this  return  the  plaintiff  is  entitled  to 
a  capias  in  withernam.  See  WITHERNAM; 
Wats.  Sheriff  300,  301.  The  word  i  loignd  is 
sometimes  used  as  synonymous  with  elon- 
gata. 

EL0NGATUS.  The  sheriffs  return  to  a 
writ  de  homine  replegiando,  q.  v. 

ELOPEMENT.  The  departure  of  a  mar- 
ried woman  from  her  husband  and  dwelling 
with  an  adulterer.    Cowell ;  Tomlin. 

To  constitute  elopement  the  wife  must  not 
only  leave  the  husband,  but  go  beyond  his 
actual  control.  For  if  she  abandon  the  hus- 
band, and  go  and  live  in  adultery  in  a  house 
belonging  to  him,  it  is  said  not  to  be  an 
elopement;  Cogswell  v.  Tlbbetts,  3  X.  II.  42; 
1  Rolle,  Abr.  0S0. 

When  a  wife  elopes  the  husband  Is  no 
longer  liable  for  her  support,  and  is  not 
bound  to  pay  debts  of  her  contracting,  when 
the  separation  is  notorious;  and  whoever 
gives  her  credit  does  so,  under  these  circum- 
stances, at  his  peril;  Hunter  v.  Boucher,  3 
Pick.  (Mass.)  2S9 ;  0  Term  003;  McCutcheo 
v.  McGahay,  11  Johns.  (N.  Y.)  2S1,  0  Am. 
Dec.  37:'. ;  Bull.  N.  P.  135. 

It  has  been  said  that  the  word  has  no  legal 
sense;  2  W.  Bla.  1080;  but  it  is  frequently 


ELOPEMENT 


1004    EMANCIPATION  PROCLAMATION 


used,  as  is  here  shown,  with  a  precisely  de- 
fined meaning.  An  action  may  be  maintain- 
ed by  the  husband,  against  a  third  person, 
for  enticing  away  his  wife,  where  nothing 
in  the  nature  of  criminal  conversation  is  al- 
leged. See  Schoul.  Hus.  &  W.  64;  Aliena- 
tion op  Affection  ;  Entice. 

ELSEWHERE.     In  another  place. 

Where  one  devises  all  his  land  in  A,  B,  and  C, 
three  distinct  towns,  and  elsewhere,  and  had  lands 
of  much  greater  value  than  those  in  A,  B,  and  C,  in 
another  county,  the  lands  in  the  other  county  were 
decreed  to  pass  by  the  word  "elsewhere";  and  by 
Lord  Chancellor  King,  assisted  by  Raymond,  C.  J., 
and  other  judges,  the  word  "elsewhere"  was  ad- 
judged to  be  the  same  as  if  the  testator  had  said  he 
devised  all  his  lands  in  the  three  towns  particularly 
mentioned,  or  in  any  other  place  whatever.  3  P. 
Wms.  56.  See,  also,  Chanc.  Prec.  202;  1  Vera.  4,  n. ; 
Cowp.  360,  808  ;    5  Bro.  P.  C.  496  ;    1  East  456. 

As  to  the  effect  of  the  word  "elsewhere"  in  the 
case  of  lands  not  purchased  at  the  time  of  making 
the  will,  see  3  Atk.  254;  2  Ventr.  351.  The  words 
"or  elsewhere"  have  been  held  not  to  include  lands 
in  another  state ;  Atkinson  v.  Schilman,  60  Fla.  39, 
53  South.  844,  56  South.  274.  As  to  the  construction 
of  the  words  "or  elsewhere"  in  shipping  articles, 
see  Brown  v.  Jones,  2  Gall.  477,  Fed.  Cas.  No.  2,017. 

ELUVIONES.     Spring-tides. 

EMANCIPATION.  An  act  by  which  a 
person  who  was  once  in  the  power  or  under 
the  control  of  another  is  rendered  free. 

This  is  of  importance  mainly  in  relation 
to  the  emancipation  of  minors  from  the  pa- 
rental control.  See  3  Term  355;  8  id.  479; 
Varney  v.  Young,  11  Vt.  258;  Tillotson  v. 
McCrillis,  id.  477;  Haugh,  Ketcham  &  Co. 
Iron  Works  v.  Duncan,  2  Ind.  App.  264,  28 
N.  E.  334;  Trapnell  v.  Conklyn,  37  W.  Va. 
242,  16  S.  E.  570,  38  Am.  St.  Rep.  30.  See 
Cooper,  Justin.  441,  480;  Cowperthwaite  v. 
Jones,  2  Dall.  (U.  S.)  57,  1  L.  Ed.  287;  Fer- 
riere,  Diet,  de  Jurist).  Emancipation;  Man- 
umission. 

An  infant  husband  is  entitled  to  his  own 
wages,  so  far  as  necessary  for  the  support 
of  himself  and  family,  even  though  he  mar- 
ried without  his  father's  consent;  Com.  v. 
Graham,  157  Mass.  73,  31  N.  E.  708,  16  L.  R. 
A.  578,  34  Am.  St.  Rep.  255.  Where  children 
contract  for,  collect,  and  use  their  own  earn- 
ings, emancipation  is  to  be  inferred;  Ger- 
inger  v.  Heinlein,  29  Wkly.  Law  Bui.  339; 
and  so  when  they  become  of  age,  no  other 
facts  being  shown ;  Baldwin  v.  Worcester,  66 
Vt.  54,  28  Atl.  633. 

The  desertion  of  children  by  their  father 
emancipates  them ;  Thompson  v.  Ry.  Co.,  104 
Fed.  845,  where,  in  an  action  by  the  father 
as  next  of  kin  for  the  death  of  the  child,  it 
was  held  that  there  could  be  no  recovery  as 
by  reason  of  the  emancipation  the  father 
had  no  right  to  the  earnings.  See  also  for 
other  authorities  note  in  Wilson  v.  McMil- 
lan, 62  Ga.  16,  35  Am.  Rep.  117 ;  Rodg.  Dom. 
Rel.  §  467.  This  presumption  of  emancipa- 
tion from  desertion  has  been  termed  "the 
presumption  of  necessity."  Schoul.  Dom. 
Rel.  §  267. 


EMANCIPATION    PROCLAMATION.      See 

Bondage. 

EMBARGO.  A  proclamation  or  order  of 
state,  usually  issued  in  time  of  war  or  threat- 
ened hostilities,  prohibiting  the  departure  of 
ships  or  goods  from  some  or  all  the  ports  of 
such  state,  until  further  order.  The  William 
King,  2  Wheat.    (U.  S.)  148,  4  L.  Ed.  206. 

A  civil  embargo  is  the  act  of  a  state  de- 
taining the  ships  of  its  own  citizens  in  port, 
which  amounts  to  an  interdiction  of  com- 
merce, accompanied,  as  it  usually  is,  by  a 
closing  of  its'  ports  to  foreign  vessels.  A 
hostile  embargo  is  a  detention,  as  before 
mentioned,  of  foreign  vessels  and  property 
which  may  be  in  the  ports  of  the  wronged 
state.  The  detention  is  by  way  of  reprisal 
(q.  v.)  and  is  thus  distinguished  from  a  de- 
tention of  foreign  vessels  upon  other  grounds. 
If  hostile  embargo  is  followed  by  war,  the 
vessels  detained  are  confiscated.  The  term 
embargo  is  sometimes  applied  to  the  deten- 
tion of  foreign  merchant  vessels  after  the 
outbreak  of  war.  It  had  been  customary 
for  belligerents  to  allow  enemy  vessels  in 
their  ports  at  the  outbreak  of  hostilities  to 
depart  freely,  and  this  custom  finds  a  limit- 
ed expression  in  the  Convention  Relative  to 
the  Status  of  Enemy  Merchant  Ships  at  the 
Outbreak  of  Hostilities,  adopted  at  the 
Hague  Convention  of  1907,  which  provides 
that  it  is  desirable  that  such  vessels  be  al- 
lowed to  depart  freely. 

The  detention  of  ships  by  an  embargo  is 
such  an  injury  to  the  owner  as  to  entitle 
him  to  recover  on  a  policy  of  insurance 
against  "arrests  or  detainments."  And 
whether  the  embargo  be  legally  or  illegally 
laid,  the  injury  to  the  owner  is  the  same, 
and  the  insurer  is  equally  liable  for  the  loss 
occasioned  by  it.  Marsh.  Ins.  b.  1,  c.  12,  s. 
5 ;  1  Kent  60 ;  1  Bell,  Diet.  517. 

An  embargo  detaining  a  vessel  at  the  port 
of  departure,  or  in  the  course  of  the  voyage, 
does  not  of  itself  work  a  dissolution  of  a 
charter-party,  or  of  the  contract  with  the 
seamen.  It  is  only  a  temporary  restraint 
imposed  by  authority  for  legitimate  politi- 
cal purposes,  which  suspends  for  a  time  the 
performance  of  such  contracts,  and  leaves 
the  rights  of  parties  untouched ;  1  Bell,  Diet 
517. 

EMBASSAGE  or  EMBASSY.  The  message 
or  commission  given  by  a  sovereign  or  state 
to  a  minister  called  an  "ambassador,"  em- 
powered to  treat  or  communicate  with  an- 
other sovereign  or  state;  also  the  establish- 
ment of  an  ambassador.    Black,  L.  Diet 

EMBEZZLEMENT.  The  fraudulent  ap- 
propriation to  one's  ow«n  use  of  the  money 
or  goods  entrusted  to  one's  care  by  another. 
Fagnan  v.  Knox,  40  N.  Y.  Super.  Ct.  41. 

The  fraudulent  appropriation  of  property 
by  a  person  to  whom  it  has  been  intrusted 
or  to  whose  hands  it  has  lawfully  come;  it 


EMBEZZLEMENT 


1005 


EMBEZZLEMENT 


is  distinguished  from  larceny  in  the  fact  that 
the  original  taking  of  the  pifpjoerty  was  law- 
ful or  with  the  consent  of  the  owner,  while 
in  larceny  the  felonious  intent  must  have 
existed  at  the  time  of  the  talcing.  Moore  v. 
T\  S..  inn  U.  S.  2G8,  16  Sup.  Ct  294,  40  L.  Ed. 
422.  See  Grin  v.  Shine,  187  TJ.  S.  181,  23 
Sup.  Ct.  98,  47  L.  Ed.  130 ;  People  v.  Toinlin- 
son,  102  Cal.  19,  3G  Pac.  50& 

The  principles  of  the  common  law  not  be- 
ing found  adequate  to  protect  general  owners 
against  the  fraudulent  conversion  of  proper- 
ty by  persons  standing  in  certain  fiduciary 
relations  to  those  who  were  the  subject  of 
their  peculations,  certain  statutes  have  been 
enacted,  as  well  in  England  as  in  this  coun- 
try, creating  new  criminal  offences  and  an- 
nexing to  them  their  proper  punishments. 
The  general  object  of  these  statutes  doubt- 
less was  to  define  and  embrace,  as  criminal 
offences  punishable  by  law,  certain  cases 
where,  although  the  moral  guilt  was  quite  as 
great  as  in  larceny,  yet  the  technical  objec- 
tion arising  from  the  fact  of  a  possession 
lawfully  acquired  by  the  party  screened  him 
from  punishment.  Com.  v.  Stearns,  2  Mete. 
(Mass.  i  345;  Com.  v.  Simpson,  9  Mete. 
(Mass.)  142.  See  State  v.  Wolff,  34  La. 
Ann.  1153. 

In  order  to  constitute  embezzlement,  it 
must  distinctly  appear  that  the  party  acted 
with  felonious  intent,  and  made  an  inten- 
tionally wrong  disposal,  indicating  a  design 
to  cheat  and  deceive  the  owner.  A  mere 
failure  to  pay  over  money  intrusted  to  such 
party  as  agent  for  investment  is  not  suffi- 
cient, if  this  intent  is  not  plainly  apparent; 
People  v.  Hurst.  02  Mich.  276,  28  N.  W.  838. 
The  money  appropriated  need  not  have  been 
intrusted  to  the  accused  by  the  owner;  it  is 
sufficient  if  it  were  intrusted  to  the  employ- 
er of  the  accused  and  appropriated  by  the 
latter;  Com.  v.  Clifford,  00  Ky.  4,  27  S.  W. 
Sll  ;  and  that  the  money  was  taken  without 
any  attempt  at  concealment  is  no  defence  to 
the  charge  of  embezzlement:  People  v.  Con- 
nelly, 4  Cal.  Unrep.  Cas.  858,  38  Pac.  42. 
There  must  be  a  relation  of  special  trust  in 
regard  to  the  article  appropriated,  and  it  must 
be  by  virtue  of  such  trust  that  the  servant 
has  access  to,  or  control  or  possession  of,  it ; 
CMip  v.  State.  153  Ind.  584,  55  N.  E.  739.  74 
Am.  St.  Pep.  322;  followed  in  State  v.  Win- 
standley,  155  Ind.  290,  58  N.  E.  71.  Wheth- 
er the  lack  of  authority  to  receive  the  money 
in  the  first  instance  will  necessarily  defeat 
a  prosecution  for  embezzlement  is  a  subject 
much  discussed.  The  better  view  seems  to 
be  that  if,  by  virtue  of  his  employment,  the 
money  came  into  his  possession,  its  embez- 
zlement is  within  the  meaning  of  the  stat- 
ute; Ker  v.  State,  110  111.  029.  51  Am.  Rep. 
700;  Smith  v.  State,  53  Tex.  Cr.  R.  117,  109 
S.  W.  118,  17  L.  R.  A.  (N.  S.)  531,  15  Ann. 
Cas.  435;  McAleer  v.  State,  40  Neb.  116,  64 
N.  W.  358;  State  v.  Costin,  89  N.  C.  511; 
State  v.  Jennings,  9S  Mo.  493,  11  S.  W.  980 ; 


but  some  cases  hold  that,  if  there  was  no  au- 
thority to  receive  the  money,  its  conversion 
will  not  constitute  embezzlement;  Brady  v. 
State,  21  Tex.  App.  659,  1  S.  W  462;  state  v. 
Johnson,  49  la.  141. 

Embezzlement  being  a  statutory  offence, 
reference  must  be  had  to  the  statutes  of  the 
jurisdiction  for  the  ela-ses  of  persons  and 
property  affected  by  them.  It  has  been  held 
that  there  may  be  embezzlement  of  bank 
bills;  Com.  v.  King,  9  Cush.  (Ma 
municipal  bonds ;  Bork  v.  People,  91  N.  Y. 
5  ;  State  v.  White,  60  Wis.  343,  28  N.  W. 
grain;  State  v.  Stoller,  38  la.  321;  an  ani- 
mal; Washington  v.  Stale,  72  Ala.  272;  com- 
mercial securities;  State  v.  Orwig,  24  la. 
102;  [1891]  1  Q.  B.  112;  and  of  a  mortgage; 
Com.  v.  Concannon,  5  Allen  (Mass,  i 
and  by  public  officers,  placed  in  a  fiduciary 
relation  as  such;  Com.  v.  Tuckerman,  10 
Gray  (Mass.)  173;  People  v.  McKinney,  10 
Mich.  54.  See  Ex  parte  Hedley,  31  Cal.  108; 
People  v.  Dalton,  15  Wend.  (N.  Y.)  581  ; 
Com.  v.  Morrisey,  80  Pa.  416;  State  v.  Munch, 
22  Minn.  'IT:  Lewis  v.  Kendall.  0  How.  Pr. 
(X.  Y.)  59;  State  v.  King.  81  la.  587,  47  N. 
W.  775;  State  v.  Noland,  111  Mo.  473.  19  S. 
W.  715.  Where  one  withdraws  from  the 
money  drawer  of  a  cash  register  money  that 
he  had  deposited  a  moment  before  without 
registering,  he  is  guilty  of  embezzlement ; 
Com.  v.  Ryan,  155  Mass.  523.  36  X.  E.  364, 
15  L.  R.  A.  317,  31  Am.  St  Rep.  500.  Where 
an  attorney  collects  money  for  his  client,  he 
acts  as  agent  and  attorney,  and  in  either 
case,  if  he  appropriate  the  money  collected 
to  his  own  use  with  the  intention  of  depriv- 
ing the  owner  of  the  same,  he  is  guilty  of 
embezzlement;  People  v.  Converse,  74  Mich. 
47S,  42  N.  W.  70,  16  Am.  St.  Rep.  648.  In 
a  prosecution  for  the  embezzlement  of  mon- 
ey held  by  defendant  as  bailee,  it  is  imma- 
terial that  it  was  deposited  in  a  bank  for  a 
time,  so  that  the  money  actually  converted 
was  not.  the  identical  bills  delivered  to  the 
bailee:  Com.  v.  Mead,  100  Mass.  319,  35  N. 
E.  1125. 

A  taking  is  requisite  to  constitute  a  lar- 
ceny, and  embezzlement  is  in  substance  and 
essentially  a  larceny,  aggravated  rather  than 
palliated  by  the  violation  of  a  trust  or  con- 
tract, instead  of  being,  like  larceny,  a  tres- 
pass. The  administration  of  the  common 
law  has  been  not  a  little  embarrassed  in  dis- 
criminating between  the  two  offences.  But 
they  are  so  far  distinct  in  their  character 
that,  under  an  indictment  charging  merely 
a  larceny,  evidence  of  embezzlement  is  not 
sufficient  to  authorize  a  conviction:  and  in 
cases  of  embezzlement  the  proper  mode  is 
to  allege  sufficient  matter  in  the  indictment 
to  apprise  the  defendant  that  the  cha 
for  embezzlement.  And  it  is  often  no  less 
difficult  to  distinguish  this  crime  from  a  mere 
breach  of  trust.  Although  the  statutes  de- 
clare that  a  party  shall  be  deemed  to  have 
committed  the  crime'  of  simple  larceny,   yet 


EMBEZZLEMENT 


1006 


EMBLEMENTS 


It  is  a  larceny  of  a  peculiar  character,  and 
must  be  set  forth  in  its  distinctive  charac- 
ter; Com.  v.  Wyman,  8  Mete.  (Mass.)  247; 
Com.  v.  Simpson,  9  Mete.  (Mass.)  138;  Com. 
v.  King,  9  Cush.  (Mass.)  284;  Kribs  v. 
Teople,  82  111.  425 ;  State  v.  Newton,  26  Ohio 
St.  205. 

The  word  embezzle  implies  a  fraudulent 
intent,  and  the  addition  of  the  word  fraudu- 
lently is  mere  surplusage;  Reeves  v.  State, 
95  Ala.  31,  11  South.  158 ;  U.  S.  v.  Lancaster, 
2  McLean  431,  Fed.  Cas.  No.  15,556;  State 
v.  Wolff,  34  La.  Ann.  1153;  State  v.  Trolson, 
21  Nev.  419,  32  Pac.  930;  State  v.  Combs, 
47  Kan.  136,  27  Pac.  818. 

When  money  is  embezzled,  the  owner  has 
a  right  to  settle  as  for  an  implied  contract, 
and  such  settlement  is  no  bar  to  a  criminal 
prosecution;  Faguan  v.  Knox,  66  N.  Y.  526; 
State  v.  Noland,  111  Mo.  473,  19  S.  W.  715. 
A  partner  is  not  guilty  of  embezzlement 
in  appropriating  the  funds  of  the  firm  to  his 
own  use ;  Gary  v.  Masonic  Aid  Ass'n,  87  la. 
25,  53  N.  W.  1086.  See  Napoleon  v.  State,  3 
Tex.  App.  522 ;  12  Cox,  C.  C.  96. 

When  an  embezzlement  of  a  part  of  the 
cargo  takes  place  on  board  of  a  ship,  either 
from  the  fault,  fraud,  connivance,  or  negli- 
gence of  any  of  the  crew,  they  are  bound  to 
contribute  to  the  reparation  of  the  loss,  in 
proportion  to  their  wages.  So  too  the  em- 
bezzlement of  property  saved  is  a  bar  to 
salvage.  When  the  embezzlement  is  fixed  on 
any  individual,  he  is  solely  responsible; 
when  it  is  made  by  the  crew,  or  some  of  the 
crew,  but  the  particular  offender  is  unknown, 
and,  from  the  circumstances  of  the  case, 
strong  presumptions  of  guilt  apply  to  the 
whole  crew,  all  must  contribute.  The  pre- 
sumption of  innocence  is  always  in  favor  of 
the  crew;  and  the  guilt  of  the  parties  must 
be  established  beyond  all  reasonable  doubt 
before  they  can  be  required  to  contribute ; 
Spurr  v.  Pearson,  1  Mas.  104,  Fed.  Cas.  No. 
13,268;  4  B.  &  P.  347;  Lewis  v.  Davis,  3 
Johns.  (N  Y.)  17;  Dane,  Abr.  Index;  Wesk. 
Ins.  194 ;  3  Kent  151.  See  Pars.  Sh.  &  Adm. 
A  prima  facie  case  of  embezzlement  is 
made  out,  sufficient  to  warrant  the  surrender 
of  one  in  extradition  proceedings,  when  it 
was  shown  that  a  check  was  delivered  to 
him  with  instructions  to  draw  the  money 
from  the  bank  and  take  it  to  a  railway  sta- 
tion to  be  forwarded  to  another  city,  and 
that  he  subsequently  converted  the  same  to 
his  own  use;  Grin  v.  Shine,  187  U.  S.  181, 
23  Sup.  Ct.  98,  47  L.  Ed.  130. 

Stringent  provisions  are  made  by  several 
acts  of  congress  against  the  embezzlement 
of  arms,  munitions,  and  habiliments  of  war, 
property  stored  in  public  storehouses,  letters, 
precious   metals,   and  coins  from   the   mint. 

EMBLEMENTS  (Fr.  emUer,  or  emblaver, 
to  sow  with  corn.  The  profits  of  the  land 
sown).  The  right  of  a  tenant  to  take  and 
carry    away,   after   his.  tenancy    has  ended, 


such  annual  products  of  the  land  as  have 
resulted  from  his  own  care  and  labor.  The 
term  is  also  applied  to  the  crops  themselves. 
Co.  Lift.  55  6;  4  H.  &  J.  139;  3  B.  &  Aid. 
118;  Reiff  v.  Reiff,  64  Pa.  134. 

It  is  a  privilege  allowed  to  tenants  for  life, 
at  will,  or  from  year  to  year,  because  of  the 
uncertainty  of  their  estates  and  to  encourage 
husbandry.  If,  however,  the  tenancy  is  for 
3'ears,  and  its  duration  depends  upon  no  con- 
tingency, a  tenant  when  he  sows  a  crop  must 
know  whether  his  term  will  continue  long 
enough  for  him  to  reap  it,  and  is  not  per- 
mitted to  re-enter  and  cut  it  after  his  term 
has  ended ;  4  Bingh.  202 ;  Whitmarsh  v.  Cut- 
ting, 10  Johns.  (N.  Y.)  361;  Debow  v.  Col- 
fax, 10  N.  J.  L.  128;  Gossett  v.  Drydale,  48 
Mo.  App.  430.  Whenever  a  tenancy,  other 
than  at  sufferance,  is  from  the  first  of  un- 
certain duration  and  is  unexpectedly  termi- 
nated without  fault  of  the  tenant,  he  is  en- 
titled to  emblements ;  Gardner  v.  Lanford, 
S6  Ala.  508,  5  South.  879. 

This  privilege,  extends  to  cases  where  a 
lease  has  been  unexpectedly  terminated  by 
the  act  of  God  or  the  law;  that  is,  by  some 
unforeseen  event  which  happens  without  the 
tenant's  agency ;  as,  if  a  lease  is  made  to 
husband  and  wife  so  long  as  they  continue 
in  that  relation,  and  they  are  afterwards 
divorced  by  a  legal  sentence,  the  husband 
will  be  entitled  to  emblements;  Oland's  case, 
5  Co.  116  & ;  or  where  the  lessee  of  a  tenant 
for  life  has  growing  crops  unharvested  at 
the  time  of  the  latter's  death,  he  is  entitled 
to  them ;  Bradley  v.  Bailey,  56  Conn.  374,  15 
All.  746,  1  L.  R.  A.  427,  7  Am.  St.  Rep.  316 ; 
Edghill  v.  Mankey,  79  Neb.  347,  112  N.  W. 
570,  11  L.  R.-A.  (N.  S.)  688;  Hoagland  v. 
Crum,  113  111.  365,  55  Am.  Rep.  424.  A  simi- 
lar result  will  follow  if  the  landlord,  having 
the  power,  terminates  the  tenancy  by  notice 
to  quit;  Cro.  Eliz.  460;  but  not  where,  under 
the  terms  of  the  lease,  the  landlord  re-enters 
and  takes  possession  because  the  tenant  fails 
to  pay  rent;  Gregg  v.  Boyd,  69  Hun  588,  23 
N.  Y.  Supp.  918.  See  other  cases  of  uncer- 
tain duration,  Stewart  v.  Doughty,  9  Johns. 
(N.  Y.)  112;  8  Viner,  Abr.  364.  But  it  is 
otherwise  if  the  tenancy  is  determined  by  an 
act  of  the  tenant  which  works  a  forfeiture ; 
as  If,  being  a  woman,  she  has  a  lease  for  a 
term  of  years  provided  she  remains  so  long 
single,  and  she  terminates  it  by  marrying; 
2  B.  &  Aid.  470;  Lane  v.  King,  8  Wend.  (N. 
Y.)  584,  24  Am.  Dec.  105.  A  landlord  who 
re-enters  for  a  forfeiture  takes  the  emble- 
ments ;  7  Bingh.  154.  Where  a  tenant  wrong- 
fully retains  possession  of  land  after  his 
term  has  expired,  crops  planted  by  him  so 
long  as  they  remain  unsevered,  belong  to  the 
landlord;  Kleimann  v.  Geiselmann,  45  Mo. 
App.  505.     See  Landlord  and  Tenant. 

All  such  crops  as  in  the  ordinary  course 
of  things  return  the  labor  and  expense  be- 
stowed upon  them  within  the  current  year 


EMBLEMENTS 


1007 


EMBLEMENTS 


Decome  the  subject  of  emblements, — consist- 
ing of  grain,  peas,  beans,  hemp,  flax,  and 
annual  roots,  such  as  parsnips,  carrots,  tur- 
nips, and  potatoes  as  well  as  the  artificial 
grasses,  which  are  usually  renewed  like  oth- 
er crops.  But  such  things  as  are  of  sponta- 
neous growth,  as  roots  and  trees  not  annual, 
and  the  fruit  on  such  trees,  although  ripe, 
and  grass  growing,  even  if  ready  to  cut,  or  a 
second  crop  of  clover,  although  the  first  crop 
taken  before  the  end  of  the  term  did  not  re- 
pay the  expense  of  cultivation,  do  not  fall 
within  the  description  of  emblements;  Cro. 
Car.  515;  Cro.  Eliz.  4G3 ;  Whitmarsh  v.  Cut- 
tin-  10  Johns.  (N.  Y.)  361;  Co.  LItt  55  6; 
TayL  Landl.  &  T.  §  534;  Woodf.  Landl.  &  T. 
750. 

But  although  a  tenant  for  years  may  not 
be  entitled  to  emblements  as  such,  yet  by  the 
custom  of  the  country,  in  particular  districts, 
he  may  be  allowed  to  enter  and  reap  a  crop 
which  he  has  sown,  after  his  lease  has  ex- 
pired ;  Dougl.  201 ;  16  East  71 ;  7  Bingh.  465. 
The  parties  to  a  lease  may,  of  course,  regu- 
late all  such  matters  by  an  express  stipula- 
tion ;  but  in  the  absence  of  such  stipulation 
it  is  to  be  understood  that  every  demise  is 
open  to  explanation  by  the  general  usage  of 
the  country  where  the  land  lies,  in  respect 
to  all  matters  about  which  the  lease  is  si- 
lent ;  and  every  person  is  supposed  to  be  cog- 
nizant of  this  custom  and  to  contract  in  ref- 
erence to  it;  Stultz  v.  Dickey,  5  Binn.  (Pa.) 
285,  G  Am.  Dec.  411.  The  rights  of  tenants, 
therefore,  with  regard  to  the  aivay -going 
crop,  will  differ  in  different  sections  of  the 
country;  thus,  in  Pennsylvania  and  New 
Jersey  a  tenant  is  held  to  be  entitled  to  the 
grain  sown  in  the  autumn  before  the  expira- 
tion of  his  lease,  and  coming  to  maturity  in 
the  following  summer ;  Mitch.  R.  P.  24 ; 
Clark  v.  Harvey,  54  Pa.  142 ;  Hudson  v.  Por- 
ter, 13  Conn.  59 ;  Howell  v.  Schenck,  24  N.  J. 
L.  89;  while  in  Delaware  the  same  custom  is 
said  to  prevail  with  respect  to  wheat,  but 
not  as  to  oats ;  Templeman  v.  Biddle,  1  Harr. 
(Del.)  522;  and  trespass  will  lie  against  one 
who  interferes  with  the  land  to  the  injury  of 
the  outgoing  tenant;  Clark  v.  Banks,  6 
Houst.    (Del.)   584. 

Of  a  similar  nature  would  be  the  tenant's 
right  to  remove  the  manure  made  upon  the 
farm  during  the  last  year  of  the  tenancy. 
Good  husbandry  requires  that  it  should  ei- 
ther be  used  by  the  tenant  on  the  farm,  or 
left  by  him  for  the  use  of  his  successor ;  and 
such  is  the  general  rule  on  the  subject  in 
England  as  well  as  in  this  country;  Middle- 
brook  v.  Corwln,  15  Wend.  (N.  Y.)  169; 
Goodrich  v.  Jones,  2  Dill  (N.  Y.)  142.  A 
different  role  has  been  laid  down  in  North 
Carolina;  2  Ired.  320;  but  it  is  clearly  at 
variance  with  the  whole  current  of  Ameri- 
can authorities  upon  this  point.  See  Ma- 
nure. Straw,  however,  is  incidental  to  the 
crop  to  which  it  belongs,  and  may  be  remov- 


ed In  all  cases  where  the  crop  may  be ;  ( 
v.  Shattuck,  22  Barb.   (N.  J.)   568;  <' 
Dale,  1  W.  &  S.   (Pa  7  Am.  Dec. 

There  are  sometimes,  also,  mutual  privi- 
leges, in  the  nature  of  emblements,  which 
are  founded  on  the  common  usage  of  the 
neighborhood    where    there    is    no    e.\ 

ient  to  the  contrary,  applicable  to  both 
outgoing  and  incoming  tenants.  Thus,  the 
outgoing  tenant  may  by  custom  be  entitled 
to  the  privilege  of  retaining  possession  of 
the  land  on  which  his  away-going  crops  are 
sown,  with  the  use  of  the  barns  and  ste 
for  housing  and  carrying  them  away;  while 
the  incoming  tenant  has  the  privilege  of  en- 
tering during  the  continuance  of  .the  old  ten- 
ancy for  the  purposes  of  ploughing  and  ma- 
nuring the  land.  But,  independently  of  any 
custom,  every  tenant  who  is  entitled  to  em- 
blements has  a  right  of  ingress,  egress,  and 
regress  to  cut  and  carry  them  away,  and  the 
same  privilege  will  belong  to  his.  vendee, — 
neither  of  them,  however,  having  any  ex- 
clusive right  of  possession.  See  Wintermute 
v.  Light,  46  Barb.  (N.  Y.)  278;  Tayl.  Landl. 
&  T.  §  543;  Woodf.  Landl.  &  T.  754;  Land- 
lord and  Tenant  ;  Away-going  Crop  ;  Grow- 
ing Crops. 

EMBRACE0R.  He  who,  when  a  matter 
is  on  trial  between  party  and  party,  comes 
to  the  bar  with  one  of  the  parties,  and.  hav- 
ing received  some  reward  so  to  do,  speaks  in 
the  case  or  privily  labors  the  jury,  or  stands 
there  to  survey  or  overlook  them,  thereby  U> 
put  them  in  fear  and  doubt  of  the  matter. 
But  persons  learned  in  the  law  may  speak 
in  a  cause  for  their  clients.  Co.  Litt  360 : 
Tcrmes  de  la  Ley. 

EMBRACERY.  An  attempt  to  corrupt  or 
inlluence  a  jury,  or  any  way  incline  them  to 
be  more  favorable  to  one  side  than  to  the 
other,  by  money,  promises,  threats,  or  persua- 
sions, whether  the  juror  on  whom  such  at- 
tempt is  made  give  any  verdict  or  d 
whether  the  verdict  be  true  or  false.  Hawk. 
PI.  Cr.  259;  Co.  Litt  157  b,  369  a;  11  Mod. 
Ill,  US;  Gibbs  v.  Dewey,  5  Cow.  (N.  Y.  i 
503;  2  Bish.  Cr.  L.  §  3S9;  State  v.  Sales,  2 
Nev.  26S;  Graunis  v.  Branden,  5  Day  (Conn,  i 
260,  5  Am.  Dec.  143;  State  v.  Keyes,  8  \ 
57,  30  Am.  Dec.  450. 

Such  an  attempt  is  a  misdemeanor  at  com- 
mon law;  CI.  Cr.  L.  326. 

See  Jury. 

EMENDA  ( Lat. )  Amends.  That  which  is 
given  in  reparation  or  satisfaction  for  a  tres- 
pass committed;  or,  among  the  Saxons,  a 
compensation  for  a  crime.     Spelman,   l 

EMENDALS.  In  English  Law.  This  an- 
cient word  is  said  to  be  used  in  the  accounts 
of  the  Inner  Temple,  where  so  much  in  omen- 
dais  at  the  foot  of  an  account  signifies  so 
much  in  bank,  or  stock,  for  the  supply  of 
emergencies.     Cunningham,   Law  Diet.     But 


EMEND ALS 


1008 


EMINENT  DOMAIN 


^pelman  says  it  is  what  is  contributed   for 
the  reparation  of  losses.     Cowell. 

EMENDATIO  PANIS  ET  CERVISI/E. 
The  power  of  supervising  and  correcting  the 
weights  and  measures  of  bread  and  ale. 
Cowell. 

EMERGENCY.  An  unforeseen  occurrence 
or  condition.     See  Accident. 

EMIGRANT.  One  who  quits  his  country 
for  any  lawful  reason,  with  a  design  to  set- 
tle elsewhere,  and  who  takes  his  family  and 
property,  if  he  has  any,  with  him.  Vattel, 
b.  1,  c.  19,  §  224.  See  Mcllvaine  v.  Coxe,  2 
Cra.   (TJ.  S.)   302,  2  L.  Ed.  279. 

EMIGRA.NT  AGENT.  As  used  in  a 
Georgia  statute  taxing  emigrant  agents,  a 
person  engaged  in  hiring  laborers  in  a  state 
to  be  employed  beyond  its  limits.  Williams 
v.  Fears,  179  U.  S.  270,  21  Sup.  Ct.  128,  45 
L.  Ed.  186,  affirming  110  Ga.  584,  35  S.  E. 
099,  50  L.  R.  A.  6S5.  See  Employment 
Agencies. 

EMIGRATION.  Theactof  removing  from 
one  place  to  another. 

It  is  sometimes  used  in  the  same  sense  as 
expatriation ;  but  there  is  some  difference 
in  the  signification.  Expatriation  is  the  act 
of  abandoning  one's  country ;  while  emigra- 
tion is,  perhaps  not  strictly,  applied  to  the 
act  of  removing  from  one  part  of  the  coun- 
try to  another.  See  2  Kent  34,  44 ;  Expatria- 
tion. 

EMINENCE.  A  title  of  honor  given  to 
cardinals. 

EMINENT  DOMAIN.  The  superior  right 
of  property  subsisting  in  a  sovereignty,  by 
which  private  property  may  in  certain  cases 
be  taken  or  its  use  controlled  for  the  public 
benefit,  without  regard  to  the  wishes  of  the 
owner. 

The  power  to  take  private  property  for 
public  use.  West  River  Bridge  Co.  v.  Dix,  6 
How.  (U.  S.)  536,  12  L.  Ed.  535. 

The  right  of  every  government  to  appro- 
priate otherwise  than  by  taxation  and  its 
police  authority  (which  are  distinct  powers), 
private  property  for  public  use.  Dill.  Mun. 
Corp.  §  5S4. 

History  and  Nature  of  the  Power.  The 
phrase  "eminent  domain"  appears  to  have 
originated  with  Grotius,  who  carefully  de- 
scribes its  nature ;  Lewis,  Em.  Dom.  §  3,  n. ; 
Mills,  Em.  Dom.  §  5;  1  Thayer,  Cas.  Const. 
L.  945.  The  power  is  a  universal  one  and 
as  old  as  political  society,  and  the  American 
constitutions  do  not  change  its  scope  or  na- 
ture but  simply  embody  it,  as  described  by 
Grotius,  in  positive,  fundamental  law. 

The  language  of  Grotius  is:  "We  have  elsewhere 
said,  that  the  property  of  subjects  is  under  the 
eminent  domain  of  the  state  ;  so  that  the  state,  or 
he  who  acts  for  it,  may  use,  and  even  alienate  and 
destroy  such  property;  not  only  in  case  of  extreme 
necessity,  in  which  even  private  persons  have  a 
right  over  the  property  of  others;  but  for  ends  of 
public  utility,  to  which  ends  those  who  founded  civil 


society  must  be  supposed  to  have  Intended  that 
private  ends  should  give  way.  But  it  is  to  be  added, 
that  when  this  is  done,  the  state  is  bound  to  make 
good  the  loss  to  those  who  lose  their  property  ;  and 
to  this  public  purpose,  among  others,  he  who  has 
suffered  the  loss  must,  if  n--ed  be,  contribute." 
Grotius,  Bel.  ac  Pac.  lib.  iii.  c.  20.  In  the  last  clause 
quoted  there  seems  to  be  an  expression  thus  early 
of  the  doctrine  which  commonly  forms  a  part  of 
later  legislation  in  the  exercise  of  the  right  of  emi- 
nent domain  of  the  assessment  of  benefits  on  the 
person  whose  property  is  taken. 

The  term  used  by  Grotius  has  been  objected  to  by 
other  writers,  as,  for  example  Bynkershoek,  who 
prefers  the  terms  imperium  eminens  rather  than 
dominium  eminens,  considering  the  former  as  more 
accurately  expressing  the  idea  of  supreme  power. 
At  the  same  time  that  he  advocates  the  use  of  a 
terminology  to  give  more  emphatic  expression  to  the 
sovereign  nature  and  character  of  the  power,  this 
writer  discusses  the  question  whether  it  may  be  ex- 
ercised only  for  necessity  as  he  conceives  Puffendorf 
to  urge,  or  also  on  the  ground  of  convenience  or,  to 
use  the  exact  phrase  of  Grotius,  utility.  Bynker- 
shoek considers  either  ground  sufficient,  but  he  also 
lays  down  the  principle  of  requiring  compensation 
not  merely  for  a  taking,  but  for  "every  loss  which 
private  persons  bear  for  the  common  necessity  or 
utility,"  thus  anticipating  the  doctrine  not  recog- 
nized by  writers  of  his  time,  but  accepted  by  mod- 
ern constitution  makers,  under  the  name  of  conse- 
quential damages  for  injury  to,  as  well  the  direct 
loss  occasioned  by,  the  taking  private  property. 
Quest.  Jur.  Pub.  lib.  ii.  c.  15.  Puffendorf  also  criti- 
cises the  term  employed  by  Grotius.  He  divides  the 
term  control  (potestas)  into  dominium  as  used  in 
respect  to  what  is  one's  own,  and  imperium,  with 
respect  to  what  belongs  to  others.  Accordingly  he 
would  consider  that  imperium  eminens  is  more  ac- 
curate than  dominium  eminens;  De  Jure  Natures 
et  Gentium,  lib.  i.  c.  1.  s.  19.  So  Heinneccius  says: 
"We  confess  that  this  use  o'f  the  word  is  not  quite 
apt,  for  the  conception  of  dominium  and  that  of 
imperium  are  different  things  ;  it  is  the  latter  and 
not  the  former  which  belongs  to  rulers,"  but  he 
adds,  that  as  there  is  no  doubt  about  the  absolute 
right,  it  is  useless  to  condemn  the  word  when  once 
it  has  been  accepted;  Elem.  Jur.  Nat.  et  Gent.  lib. 
ii.  c.  8,  s.  168. 

All  these  writers  agree  that  the  power  is  exercised 
as  an  attribute  of  sovereignty,  and  in  this  conclu- 
sion there  is  a  general  concurrence.  Vattel  says: 
"In  political  society  everything  must  give  way  to 
the  common  good;  and  if  even  the  person  of  the 
citizens  is  subject  to  this  rule,  their  property  can- 
not be  excepted.  The  state  cannot  live,  or  continue 
to  administer  public  affairs  in  the  most  advanta- 
geous manner,  if  it  have  not  the  power,  on  occasion, 
to  dispose  of  every  kind  of  property  under  its  con- 
trol. It  should  be  presumed  that  when  the  nation 
takes  possession  of  a  country,  property  in  specific 
things  is  given  up  to  individuals  only  upon  this 
reservation."  So  it  was  said  by  the  U.  S.  Supreme 
Court:  "The  power  to  take  private  property  for 
public  use,  generally  termed  the  right  of  eminent 
domain,  belongs  to  every  independent  government. 
It  is  an  incident  of  sovereignty,  and  as  said  in 
Mississippi  &  R.  River  Boom  Co.  v.  Patterson,  98 
U.  S.  403,  25  Li.  Ed.  206,  requires  no  constitutional 
recognition ;"  Field,  J.,  U.  S.  v.  Jones,  109  U.  S. 
513,  51S,  3  Sup.  Ct.  346,  27  L.  Ed.  1015. 

Blackstone  rests  the  doctrine  upon  necessity,  and 
considers  the  recognized  right  to  compensation  as 
evidence  of  the  great  regard  of  the  law  for  private 
property ;  while  the  good  of  the  individual  must 
yield  to  that  of  the  community,  the  legislature  alone 
may  interpose  to  compel  the  individual  to  acquiesce, 
but  such  interposition  is  not  arbitrary  but  only 
upon  full  indemnification  and  equivalent  for  the  in- 
jury thereby  sustained.  The  nature  of  the  transac- 
tion he  states  thus:  "All  that  the  legislature  does, 
is  to  oblige  the  owner  to  alienate  his  possessions 
for  a  reasonable  price  ;  and  even  this  is  an  exer- 
tion  of   power  which   the  legislature   indulges  with 


EMINENT  DOMAIN 


1009 


EMINENT  DOMAIN 


caution,  and  which  nothing  but  the  legislature  can 
perform."    1  Sharsw.  Bla.  Com.  139,  n.  19. 

This  statement  by  Blackstone  of  English  law  Is  to 
be  borne  in  mind  hereafter  in  considering  the  nature 
and  origin  of  the  right  to  compensation.  Here  we 
have  the  right  defined  with  the  same  limitation 
which,  as  will  be  seen,  is  sometimes  claimed  to  rest 
solely  on  express  provisions  of  written  constitutions. 
And  the  force  of  this  statement  is  strengthened  not 
weakened,  by  the  observation  of  Bull^r,  J.,  that 
there  were  many  cases  in  which  an  injury  is  suf- 
fered by  individuals  for  which  there  is  no  right  of 
action,  as  in  a  case  of  the  destruction  of  private 
property  in  time  of  war  for  the  public  defence;  id.; 
4  Term  794  ;    3  Wils.  461;    6  Taunt.  29. 

Notwithstanding  this  recognition  of  the  nature  of 
the  power  the  subject  of  eminent  domain  as  under- 
stood in  the  United  States  is  practically  eliminated 
from  English,  law  and  the  title  itself  is  usually  not 
to  be  found  in  digests  or  text  books  of  that  country. 
"That  there  is  no  eminent  domain  in  English  juris- 
prudence," says  a  recent  writer  on  the  subject,  "is 
because  the  power  is  included,  and  the  obligation  to 
compensate  lost,  in  the  absolutism  of  parliament." 
"The  only  technical  term  approximating  to  eminent 
domain,  is  compulsory  power,  as  used  in  acts  en- 
abling municipal  and  other  corporations  to  take 
property  for  their  use.  The  multiplication  of  such 
acts  led  to  the  enactment  of  several  general  laws, 
notably  the  Lands  Clauses  Consolidation  Act  (q.  v.), 
which  is  a  complete  code.  This  act  or  one  of  the 
others  of  a  similar  class,  as  the  Railway  Clauses 
Consolidation  Act,  is  incorporated  by  reference  in 
the  various  special  acts  ;"    Rand.  Em.  Dom.  §  7. 

It  follows  of  necessity  that  English  decisions  do 
not  apply  to  the  vast  number  of  constitutional  ques- 
tions constantly  arising  in  this  country,  though  the 
adherence  of  English  legislation  to  the  same  great 
principle  of  compensation  necessarily  results  in  pro- 
ducing a  body  of  law  in  England  covering  most  of 
the  questions  which  are  adjudicated  in  our  own 
country  respecting  the  construction  and  application 
of  statutes  under  which  the  power  is  exercised. 

The  subject  is  treated  at  length  in  6  Halsbury, 
Laws  of  England  1,  under  the  title  of  Compulsory 
Purchase  of  Land,  where  (p.  12)  it  is  pointed  out 
that  the  earliest  act  appears  to  be  one  for  supply- 
ing Gloucester  with  water  in  1541-42,  called  "The 
Bill  for  the  Conduyttes  at  Gloucester"  ;  and  that 
there  was  a  similar  act  in  1543-44  for  rebuilding 
London  after  the  Great  Fire. 

Different  theories  are  advanced  as  to  the  precise 
nature  of  the  power,  and  it  has  been  defined  to  be 
the  right  retained  by  the  people  or  government  over 
the  estate  of  individuals,  to  reclaim  the  same  for 
public  use,— a  kind  of  reserved  right  or  estate  re- 
maining in  the  sovereign  as  paramount  to  the  in- 
dividual title.  This  conception  of  the  right  was  at 
one  time  very  generally  accepted.  The  result  of 
this  view  is  to  consider  the  right,  theoretically  at 
least,  as  so  much  of  the  original  proprietorship  re- 
tained by  the  sovereign  power  in  granting  lands  or 
franchises  to  individuals  or  corporations,  wherever 
the  common-law  theory  of  original  proprietorship 
prevails.  An  argument  by  analogy  in  support  of 
this  view  is  derived  from  the  able  examination  and 
explanation  of  the  origin  of  the  jus  publicum  in 
Com.  v.  Alger.  7  Cush.  (Mass.)  90.  See,  also,  remarks 
of  Daniell,  J.,  in  West  River  Bridge  Co.  v.  Dix,  6 
How.  (U.  S.)  533,  12  L.  Ed.  535.  Perhaps  no  better 
statement  of  this  doctrine  is  to  be  found  than  this: 
"The  highest  and  most  exact  idea  of  property  re- 
maining in  the  government,  or  in  the  aggregate 
body  of  the  people  in  their  sovereign  capacity,  giv- 
ing a  right  to  resume  the  possession  of  the  prop- 
erty in  the  manner  directed  by  the  constitution  and 
the  laws  of  the  state  whenever  the  public  good  re- 
quires it."  Beekman  v.  R.  Co.,  3  Paige,  Ch.  (N.  Y.) 
73,  22  Am.  Dec.  679;  or,  "The  true  theory  and 
principle  of  the  matter  is,  that  the  legislature  re- 
sume dominion  over  the  property,  and  having  re- 
sumed it,  instead  of  using  it  by  their  agents,  to 
effect  the  intended  public  good,  and  to  avoid  en- 
tanglement in  the  common  business  of  life,  they 
revest  it  in  other  individuals  or  corporations  to  be 

Bouv.— 64 


used  by  them  in  such  manner  as  to  effect,  directly 
or  indirectly,  or  incidentally,  as  the  case  may  be, 
the    public    good  m,    ,>i 

Conn.   78;     see    also   Harding   v.    Goodlett,    3   Yerg. 
I   41,  21   Am.    Dec.   546      Heyward    v.   City  of 
New  York,  8  Barb.  (N.    .  [n  re  Union   EL  R. 

Co.,  113  X.  Y.  275,  21  N.  E.  81 ;  Biddle  . 
23  Mo.  597. 
But  this  theory  of  resumption  of  original  pro- 
I  -  disapproved  by  the  most  authorita- 
tive writers,  and  with  reason;  the  weight  of  au- 
thority and  of  argument  are  both  against  it.  In 
this  country  the   right  is  exercised  by  two  govern- 

< operating  on  the 
erty ;  the  federal  power  can,  upon  no  hypothesis, 
be  based  upon  original  grant  in  the  older  states, 
nor  perhaps  the  state  power,  in  the  new  states;  a 
new  sovereignty  by  acquiring  territorial  rights  suc- 
ceeds to  this  right  over  property,  of  which  the 
original  grant  was  from  the  prior  one;  property 
may  be  appropriated  a  second  time  after  the 
has  been  already  exercised  and,  upon  the  theory 
under  consideration,  necessarily  exhausted  ;  person- 
al property  is  subject  to  the  right,  although  the 
doctrine  of  reserved  right  cannot  apply  to  it,  while 
the  reversion  of  the  state  will  supply  no  argument, 
as  it  applies  equally  to  personal  property  in  which 
the  state  never  had  any  title;  and  any  paramount 
or  reserved  right  could  be  granted,  but  this  right 
never  can  ;  Sholl  v.  Coal  Co.,  US  111.  427,  10  N.  E. 
199,  59  Am.  Rep.  379  ;  New  York,  H.  &  N.  R.  Co.  v. 
R.  Co.,  36  Conn.  196.  All  these  considerations  are 
inconsistent  with  the  theory  suggested  and  seem 
to  leave  no  alternative  but  to  recognize  the  right  as 
an  attribute  of  sovereignty  and  in  no  sense  an  in- 
terest or  estate.  See  Lewis,  Em.  Dom.  §  3;  Rand. 
Em.  Dom.  §  3  ;  Noll  v.  R.  Co.,  32  la.  66  ;  Raleigh 
&  G.  R.  Co.  v.  Davis,  19  N.  C.  451 ;  Bloodgood  v. 
R.  Co.,  18  Wend.  (N.  Y.)  9,  57,  31  Am.  Dec.  313  ;  2 
Redf.  Railw.  229. 

It  is  an  inherent  power  which  belong 
the  states  and  was  not  surrendered  to  the 
United  States,  and  it  is  untouched  by  any 
provision  of  the  federal  constitution.  It  ex- 
tends to  tangible  and  intangible  property,  to 
a  chose  in  action,  a  charter  or  any  kind  of 
contract,  as  well  as  to  land  and  movables. 
It  is  not  limited  by  the  inhibition  against 
impairing  the  obligation  of  contracts.  The 
obligation  of  a  contract  is  not  impaired  by 
being  taken  under  eminent  domain  if  com- 
pensation be  made.  Every  contract  between 
the  state  and  the  individual  or  between  in- 
dividuals is  subject  to  this  law;  City  of  Cin- 
cinnati v.  R.  Co..  223  U.  S.  390,  32  Sup.  Ct 
207,  5G  L.  Ed.  481. 

One  of  the  inalienable  righl 
ty;     Hollister   v.    Stale.    9    Ida.    8,  71 
541;  Central  Branch  U.  P.  R.  Co.  v.  R.  I 
Kan.  4">."> ;  Woodmere  C<  metery  v.  Roulo,  104 
Mich.   595,   62   N.    W.    L010;     Painter   v.    St 
Clair,  98   Va.  85,  34   S.   E.  989;    and  may  be 
exercised  Cor  public  purposes  In  the  absence 
of  any  constitutional   restriction;    Am 
v.  Draining  Co.,  14  Ind.  199,  77  Am.  Dec.  63. 
It  lies  dormant  in  the  stale  until  legislative 
action  determines  the  occasion,  mode,  condi- 
tions, and   agencies  for  Its  exercise; 

V.   Jones.   47    Ind.    CIS;     St.    Louis,    11.   &    K.    C. 

R.  Co.  v.  Union  Depot  Co..  125  Mo.  82,  28  S. 
W.  483;  the  legislature  may  determine  the 
estate  or  quantity  of  interest  in  lands  which 
may  1  e  taken  ;  Cleveland,  C,  C.  &  I.  R.  Co.  v. 
R.  Co.,  91  Ind.  r>.">7  :  the  power  is  recognized 
but  not  granted  by  the  constitution ;    Samish 


EMINENT  DOMAIN 


1010 


EMINENT  DOMAIN 


River  Boom  Co.  v.  Union  Boom  Co.,  32  Wash. 
5S6,  73  Pac.  670 ;  by  which  it  is  limited  ;  Con- 
sumers' Gas  Trust  Co.  v.  Harless,  131  Ind. 
446,  29  N.  E.  1062,  15  L.  R.  A.  505 ;  it  is  the 
"offspring  of  political  necessity,  and  is  in- 
separable from  sovereignty  unless  denied  to 
it  by  its  fundamental  law" ;  Searl  v.  School 
Dist.  No.  2,  133  U.  S.  553,  10  Sup.  Ct.  374,  33 
L.  Ed.  740,  cited  in  Adams  v.  Henderson,  168 
U.  S.  574,  18  Sup.  Ct.  179,  42  L.  Ed.  5S4. 

Distinction  beticeen  Eminent  Domain  and 
Other  Powers.  The  constitutional  require- 
ment that  compensation  be  made  for  proper- 
ty taken  for  public  use  does  not  restrict  the 
inherent  power  of  the  state  under  reasonable 
regulation  to  protect  the  lives  and  secure  the 
safety  of  the  people;  Chicago,  B.  &  Q.  R. 
Co.  v.  Chicago,  166  U.  S.  226,  17  Sup.  Ct.  581, 
41  L.  Ed.  979 ;  instances  of  taking  or  de- 
struction of  property  which  have  been  sus- 
tained are :  the  change  of  boundaries  of  mu- 
nicipal corporations ;  Little  Rock  v.  North 
Little  Rock,  72  Ark.  195,  79  S.  W.  7S5 ;  re- 
striction on  a  mill  site  which  another  one 
had  previously  appropriated ;  Otis  Comp. 
v.  Mfg.  Co.,  201  U.  S.  140,  26  Sup.  Ct.  353,  50 
L.  Ed.  696,  affirming  Otis  Co.  v.  Ludlow  Mfg. 
Co.,  186  Mass.  89,  70  N.  E.  1009,  104  Am.  St. 
Rep.  563 ;  the  construction  and  operation  of 
a  water  works  plant  by  a  city  in  competition 
with  a  company  which  had  constructed 
works  under  a  franchise  from  the  city ;  City 
of  Meridian  v.  Loan  &  Trust  Co.,  143  Fed. 
67,  74  C.  C.  A.  221,  6  Ann.  Cas.  599 ;  the  de- 
struction of  a  fruit  tree  affected  with  the 
•yellows";  State  v.  Main,  69  Conn.  123,  37 
Atl.  80,  36  L.  R.  A.  623,  61  Am.  St.  Rep.  30 ; 
abatement  of  a  public  nuisance  and  the  as- 
sessment of  the  benefits  of  such  abatement 
to  the  owner;  Rude  v.  St.  Marie,  121  Wis. 
634,  99  N.  W.  460;  the  restrictions  imposed 
by  game  laws;  Ex  parte  Fritz,  86  Miss.  210, 
38  South.  722,  109  Am.  St.  Rep.  700;  State 
v.  Heger,  194  Mo.  707,  93  S.  W.  252;  State 
v.  Theriault,  70  Vt.  617,  41  Atl.  1030,  43  L. 
R.  A.  290,  67  Am.  St.  Rep.  695;  reasonable 
health  regulations;  State  v.  Robb,  100  Me. 
180,  60  Atl.  874,  4  Ann.  Cas.  275. 

'Acts  done  in  the  exercise  of  governmental 
powers  and  not  directly  encroaching  upon 
private  property,  though  their  consequences 
may  be  to  impair  its  use,  are  universally 
held  not  to  be  a  taking"  within  the  fifth 
amendment ;  Northern  Transp.  Co.  v.  Chi- 
cago, 99  U.  S.  635,  25  L.  Ed.  336;  Union 
Bridge  Co.  v.  U.  S.,  204  U.  S.  390,  27  Sup.  Ct 
367,  51  L.  Ed.  523.  So  of  the  change  of  lo- 
cation of  gas  pipes  under  a  municipal  reg- 
ulation enacted  for  the  public  safety  under 
the  police  power ;  Union  Bridge  Co.  v.  U.  S., 
204  U.  S.  395,  27  Sup.  Ct.  367,  51  L.  Ed.  523 ; 
and  an  ordinance  requiring  a  railroad  com- 
pany to  lower  its  tunnel  under  the  Chicago 
river  to  afford  increased  depth  of  water  for 
navigation ;  West  Chicago  Street  Ry.  Co.  v. 
Illinois,  201  U.  S.  506,  26  Sup.  Ct.  518.  50  L. 
Ed.  845 ;    so  of  an  order  of  the  secretary  of 


war  requiring  a  bridge  over  a  navigable  riv- 
er to  be  raised  in  aid  of  navigation ;  Union 
Bridge  Co.  v.  U.  S.,  204  U.  S.  364,  27  Sup.  Ct. 
367,  51  L.  Ed.  523. 

This  right  is  distinguished  from  public  do- 
main, which  is  property  owned  absolutely 
by  the  state  in  the  same  manner  as  an  in- 
dividual holds  his  property ;  19  (No.  37)  Am. 
Jur.  121 ;  2  Kent  339 ;  Corporation  of  Mem- 
phis v.  Overton,  3  Yerg.  (Tenn.)  3S9;  West 
River  Bridge  Co.  v.  Dix,  6  How.  (U.  S.)  540, 
12  L.  Ed.  535 ;  termed  by  Cooley  "the  ordi- 
nary domain  of  the  state";    Const.  Lim.  642. 

The  right  of  eminent  domain  is  not  to  be 
confounded  with  cases  in  which  there  ex- 
ists a  sovereign  right  to  take  or  destroy 
private  property  without  making  compensa- 
tion. The  familiar  case  of  taxation  is  read- 
ily distinguished.  An  owner  is  not  entitled 
to  compensation  for  damage  or  loss  to  prop- 
erty taken  or  destroyed  during  war.  As  to 
the  distinction  between  the  war  power  and 
eminent  domain  see  13  Am.  L.  Reg.  265,  337, 
401 ;  Mills,  Em.  Dom.  §  3.  So  property  may 
be  taken  under  a  controlling  necessity,  or  to 
prevent  the  spread  of  a  fire ;  12  Co.  63 ;  Kel- 
ler v.  City  of  Corpus  Christi,  50  Tex.  614,  32 
Am.  Rep.  613;  McDonald  v.  City  of  Red 
Wing,  13  Minn.  38  (Gil.  25) ;  Mayor,  etc.,  of 
New  York  v.  Lord,  18  Wend.  (N.  Y.)  126; 
Amer.  Print  Works  v.  Lawrence,  21  N.  J.  L. 
248. 

In  trespass  for  destruction  of  goods,  de- 
stroyed by  the  blowing  up  a  building  to  pre- 
vent the  spread  of  fire  in  a  city,  ordered  by 
defendant  as  Mayor  of  New  York,  the  com- 
mon-law plea  of  necessity  is  good  in  justifica- 
tion and  it  need  not  be  averred  that  the  de- 
fendant was  a  resident  of  or  owner  of  prop- 
erty, in  the  city,  or  that  his  own  property 
was  in  danger;  American  Print  Works  v. 
Lawrence,  23  N.  J.  L.  590,  57  Am.  Dec.  420. 
And  similarly  are  treated  proceedings  under 
the  police  power,  to  abate  a  nuisance  (q.  v.); 
Com.  v.  Alger,  7  Cush.  (Mass.)  53  (in  which 
Shaw,  C.  J.,  draws  the  distinction  between 
the  police  power  and  eminent  domain) ;  Ban- 
croft v.  Cambridge,  126  Mass.  438;  or  by 
restraining  the  owner  of  land  from  making 
a  noxious  use  of  it;  Chicago  &  A.  R.  Co.  v. 
R.  Co.,  105  111.  388,  44  Am.  Rep.  799;  or  by 
removing  sand,  etc.,  from  beaches;  Com.  v. 
Tewksbury,  11  Mete.  (Mass.)  55;  compelliug 
railroads  to  erect  cattle  guards;  Thorpe  v. 
R.  Co.,  27  Vt.  140,  62  Am.  Dec.  625 ;  or  hold- 
ing them  responsible  for  damages  by  fire 
(q.  v.)  from  locomotives ;  Rodemacher  v.  R. 
Co.,  41  la.  297,  20  Am.  Rep.  592;  compelling 
riparian  owners  to  keep  up  a  levee;  Boulig- 
ny  v.  Dormenon,  2  Mart.  N.  S.  (La.)  455 :  ex- 
changing the  course  of  a  river;  Green  v. 
Swift,  47  Cal.  536;  or  as  a  forfeiture  for 
violation  of  law ;  State  v.  Snow,  3  R.  I.  64 ; 
People  v.  Hawley,  3  Mich.  330 ;  Erie  &  N.  E. 
R.  Co.  v.  Casey,  26  Pa.  287;  Guillotte  v.  New 
Orleans,  12  La.  Ann.  432. 


EMINENT  DOMAIN 


1011 


EMINENT  DOMAIN 


The  Right  of  Compensation.  Though  not 
included  in  the  definitions  of  the  power  as 
usually  given,  the  necessity  for  compensa- 
tion is  recognized  by  the  most  authoritative 
writers  as  an  incident  to  the  right,  an  orig- 
inal element  of  its  existence,  and  nut  a  super- 
imposed limitation. 

Accordingly  eminent  domain  is  said  with 
more  precision  to  be  the  right  of  the  nation 
or  the  state,  or  of  those  to  whom  the  power 
has  been  lawfully  delegated,  to  condemn  pri- 
vate property  to  public  use,  and  to  appro- 
priate the  ownership  and  possession  of  such 
property  for  such  use,  upon  paying  to  the 
owner  a  due  compensation,  to  be  ascertained 
according  to  law;    Black,  Const.  L.  350. 

So  far  as  the  federal  constitution  is  con- 
cerned, a  state  may  authorize  the  taking  pos- 
session of  property  for  a  public  use,  prior 
to  any  payment  therefor,  or  even  the  deter- 
mination of  the  amount  of  compensation, 
provided  adequate  provision  is  made  for  such 
compensation ;  Williams  v.  Parker,  1S8  U. 
S.  491,  23  Sup.  Ct.  440,  47  L.  Ed.  559. 

Nearly  if  not  all  of  the  American  consti- 
tutions provide  for  compensation.  Professor 
Thayer  states  that  "now  (1S95)  only  three 
constitutions.  New  Hampshire,  North  Caro- 
lina, and  Virginia  are  without  a  clause  ex- 
pressly requiring  compensation."  The  provi- 
sions of  the  several  then  constitutions  are 
given  in  Randolph,  Em.  Dom.  401  to  416,  and 
Lewis,  Em.  Dom.  §§  14  to  52  (the  latter  in- 
cluding the  prior  as  well  as  the  last  state 
constitutions).  Nichols,  Em.  Dom.  (1909) 
gives  the  provisions  of  twenty-seven  state 
constitutions  requiring  prepayment ;  §  2G7. 
Tn  one  of  these  states  a  statute  providing 
that  possession  might  be  taken  after  the 
money  was  paid  into  court  and  before  the 
amount  of  the  compensation  was  ascertained 
was  held  unconstitutional  on  the  ground  that 
the  owner  was  entitled  to  hold  the  land  until 
he  received  the  money ;  Steinhart  v.  Superior 
Court,  137  Cal.  575,  70  Pac.  629,  59  L.  R.  A. 
404,  92  Am.  St.  Rep.  183. 

With  respect  to  compensation,  Kent  says: 
"This  principle,  in  American  constitutional 
jurisprudence,  is  founded  in  natural  equity, 
and  is  laid  down  by  jurists  as  an  acknowl- 
edged principle  of  universal  law;"  2  Com. 
339. 

It  would  seem  to  be  the  most  satisfactory 
conclusion  both  upon  reason  and  authority 
that  neither  the  right  of  the  state  to  take 
nor  the  right  of  the  individual  to  compensa- 
tion required  a  constitutional  assertion.  The 
right  to  take  private  property  for  public  use 
does  not  depend  on  constitutional  provisions, 
but  is  an  attribute  of  sovereignty ;  Sinniek- 
son  v.  Johnson,  17  N.  J.  L.  129,  34  Am.  Dec. 
1S4 ;  Raleigh  &  G.  R.  Co.  v.  Davis,  19  N.  O. 
451 ;  it  (the  right)  exists,  and  the  only  lim- 
itation upon  its  exercise  is  that  imposed  by 
the  state  or  federal  constitution ;  Wilson  v. 
R.  Co.,  5  Del.  Ch.  524. 

So  also  the  right  to  compensation  is  an  in- 


cident to  the  exercise  of  the  power,  insep- 
arably connected  with  it;  Sinnickson  v.  John- 
son, 17  N.  J.  L.  129,  B4  Am.  Dec.  184;  "this 
is  an  affirmance  of  a  doctrine  i 

lished  by  tbe  common  law  for  the 
of  private  property;"   2  Story.  I 
"the  obligation   attaches   to   I 
the  power,  though  it  is  not  provided  for  by 
the  state  constitution,  or  that  of  the  United 
Slates  had    not  enjoined  it;''    Bonaparte    v. 
R.  Co.,  Baldw.  C.  C.  220,  1      '  No.  1,617. 

"If  by  the  assertion  that  tbis  right  e 
at  common  law  independent  of  the  declara- 
tion of  rights,  is  meant  that  compensation 
in  such  case  is  required  by  a  plain  dictate  of 
natural  justice,  it  must  be  conceded.  Tbe 
bill  of  rigbts  declares  a  great  principle;  the 
particular  law  prescribes  a  practical  rule- 
by  which  the  remedy  for  tbe  violation  of 
right  is  to  be  sought  and  afforded  :"  Shaw, 
C.  J.,  in  Hazen  v.  Esses  Co.,  12  Cush.  (Mass.) 
475.  In  New  Hampshire,  although  the  con- 
stitution did  not  contain  an  express  provision 
requiring  compensation,  "yet  it  has  been  con- 
strued by  the  courts,  in  view  of  the  spirit 
and  tenor  of  the  whole  instrument,  as  pro- 
hibiting such  taking  without  compensation; 
and  it  is  understood  to  be  the  settled  law  of 
the  state,  that  the  legislature  cannot  con- 
stitutionally authorize  such  taking  without 
compensation ;"  Eaton  v.  R.  R.,  51  N.  II.  504, 
12  Am.  Rep.  147.  It  is  a  condition  precedent 
to  its  exercise  under  a  statute  that  it  make 
reasonable  provision  for  compensation  to  the 
owner  of  the  property  taken  ;  Sweet  v.  Rech- 
el,  159  U.  S.  3S0,  16  Sup.  Ct  43,  40  L.  Ed. 
18S;  Gardner  v.  Newburgh,  2  Johns.  Ch.  (N. 
Y.)  162,  7  Am.  Dec.  526. 

There  are  dicta  which  countenance  the 
opinion  that  compensation  is  not  of  the  es- 
sence of  eminent  domain,  that  the  usual  con- 
stitutional clause  is  restrictive,  not  declara- 
tory, so  that,  were  it  omitted,  the  state  could 
properly  take  property  without  paying  for 
it;  Rand.  Em.  Dom.  §  226,  citing  Mississippi 
&  R.  River  Boom  Co.  v.  Patterson,  98  V.  S. 
103,  25  L.  Ed.  liOG;  U.  S.  v.  Jones.  109  U.  B. 
513,  3  Sup.  Ct.  340,  27  L.  Ed.  1015;  Clark  v. 
Town  of  Sayhrook,  21  Conn.  313;  Wilson 
v.  R.  Co.,  5  Del.  Ch.  524 ;  In  re  Furinan  St., 
17  Wend.  (N.  Y.)  049;  Orr  v.  Quhnby.  54  N. 
H.  590,  647.  In  one  of  these  cases  the  lan- 
guage used  is  "the  provision  found  in  tbe 
federal  and  state  constitutions  for  just  com- 
pensation for  property  taken  is  no  part  of 
the  power  itself,  but  merely  a  limitation  up- 
on the  use  of  it.  a  condition  upon  which  it 
may  be  exercised;"  U.  S.  v.  Jones.  109  U.  S. 
513,  3  Sup.  Ct.  34G.  27  L.  Ed.  1015. 

One  of  the  text  writers  on  the  subject  takes 
this  view  ;  Lewis.  Em.  Dom.  §  10 ;  and  argues 
it    with   great  ear:  I  reating   it  as  the   same 

question  discussed  by  Sedgwick  and  Cooley  and 
referred  to  supra  under  the  title  Constitutional 
(q.  v.),  whether  there  are  limitations  of  legislative 
power  other  than  those  contained  in  the  constitu- 
tions, federal  and  state.  The  real  question  involved 
in  the  relation  of  compensation  to  eminent  domain 
is  a  different  one.    It  is  not  whether  the  sovereign 


EMINENT  DOMAIN 


1012 


EMINENT  DOMAIN 


powers  of  government  exercised  by  American  state 
legislatures  are  subject  to  undefined  limitations  not 
embodied  in  the  written  constitution,  but  what  is 
the  sovereign  power  which  we  term  eminent  domain, 
as  recognized  and  exercised  by  governments  long 
before  written  constitutions  were  known.  It  is  true 
that  some  courts  in  discussing  this  subject  have 
fallen  into  the  same  confusion  of  ideas,  but  the  dis- 
tinction none  the  less  exists  and  should  be  borne 
in  mind.  Is  it  the  right  to  take  private  property 
arbitrarily,  or  only  to  take  it  on  making  compensa- 
tion? Lewis  thinks  "the  question  has  lost  most 
of  its  practical  interest  from  the  fact  that  all  states 
except  one  (North  Carolina),  now  have  an  express 
limitation  in  their  organic  law  touching  the  exercise 
of  this  power."  It  is  submitted,  however,  that  the 
precise  definition  and  true  limitation  of  so  auto- 
cratic a  governmental  power  can  never  become  a 
matter  of  indifference.  So  long  as  one  state  consti- 
tution is  silent  on  the  subject  of  compensation  it 
remains  a  practical  question  in  American  constitu- 
tional law  and  the  existence  of  a  reserved  power  to 
amend  or  abolish  any  existing  constitution,  coupled 
with  the  prevalent  tendency  to  attack  and  impair 
the  right  to  private  property,  must  necessarily  keep 
it  such,  independently  of  the  theoretical  interest  in 
maintaining  correct  definitions  of  the  inherent  rights 
of    sovereignty. 

Suggestions  in  the  line  of  the  cases  cited  by  Ran- 
dolph and  the  views  expressed  by  Lewis,  led  to 
practical  results  in  but  few  cases:— In  South  Caro- 
lina land  was  taken  for  roads  without  compensa- 
tion ;  Lindsay  v.  Street  Com'rs,  2  Cay  (S.  C.)  38  ; 
State  v.  Dawson,  3  Hill  (S.  C.)  100 ;  but  in  New 
York,  taking  wild  land  without  compensation  was 
held  unconstitutional ;  Wallace  v.  Karlenowefski, 
19  Barb.  (N.  Y.)  118.  In  New  Jersey  and  Pennsyl- 
vania, the  subject  rested  on  a  statutory  rather  than 
a  constitutional  basis,  because  the  grants  by  the 
proprietors  included  an  extra  allowance  for  roads  ; 
Simmons  v.  City  of  Passaic,  42  N.  J.  L.  619  ;  Work- 
man v.  Mifflin,  30  Pa.  362;  and  this  was  held  com- 
pensation ;  East  Union  Tp.  v.  Comrey,  100  Pa.  362. 
See  Wagner  v.  Salzburg  Tp.,  132  Pa.  636,  19  Atl.  294. 
Under  the  New  Jersey  constitution,  land  might  be 
taken  for  highways  without  compensation  until  oth- 
erwise directed  by  the  legislature.  In  Louisiana 
land  on  the  Mississippi  River  can  be  taken  -without 
compensation  for  the  construction  of  a  public  levee 
under  the  old  French  law,  and  this  applies  to  the 
land  of  a  citizen  of  another  state,  provided  he  re- 
ceive the  same  measure  of  right  as  citizens  of  Lou- 
isiana in  regard  to  their  property  similarly  situ- 
ated ;  Eldridge  v.  Trezevant,  160  U.  S.  452,  16  Sup. 
Ct.   345,  40  L.   Ed.   490. 

Mr.  James  B.  Thayer  (Cases,  Const.  L.  953)  dis- 
cusses this  subject  in  a  very  interesting  note  and 
reaches  the  somewhat  metaphysical  conclusion  that 
the  right  to  compensation  is  not  a  component  part  of 
the  right  to  take,  though  it  arises  at  the  same  time 
and  the  latter  cannot  exist  without  it,  the  two  be- 
ing compared  to    shadow   and   substance. 

He  argues  that  the  right  of  the  state  springs 
from  the  necessity  of  government,  while  the  obliga- 
tion to  reimburse  stands  upon  the  natural  rights  of 
the  individual.  "These  two,  therefore,  have  not  the 
same  origin  ;  they  do  not  come,  for  instance,  from 
any  implied  contract  between  the  state  and  the  in- 
dividual, that  the  former  shall  have  the  property, 
if  it  will  make  compensation  ;  the  right  is  no  mere 
right  of  pre-emption,  and  it  has  no  condition  of 
compensation  annexed  to  it,  either  precedent  or 
subsequent.  But  there  is  a  right  to  take,  and  at- 
tached to  it,  as  an  incident,  an  obligation  to  make 
compensation ;  this  latter,  morally  speaking,  fol- 
lows the  other,  indeed,  like  a  shadow,  but  it  is  yet 
distinct  from  it,  and  flows  from  another  source." 
From  this  he  argues  that  for  the  taking  the  citizen 
cannot  complain  ;  if  recompense  is  not  made,  the 
duty  of  the  sovereign  is  violated  and  the  individual 
"has  an  eternal  claim  against  the  state,  which  can 
never  be  blotted  out  except  only  by  satisfaction ; 
but  this  claim  is  for  compensation,  and  not  for  his 
former  property,"  and,  "in  the  absence  of  constitu- 


tional   provisions,"   the   loss   "must  be  regarded   as 
damnum  absque  injuria." 

The  distinction  between  this  theory  and  the  doc- 
trine that  the  right  to  compensation  is  an  inherent 
attribute  rather  than  a  subsequent  limitation  of  the 
original  right  would  seem  to  be  rather  ingenious 
than  practical.  The  citations  in  the  same  note  from 
the  civilians  show  clearly  that,  in  their  view,  com- 
pensation was  essential,  and  even  in  the  states 
whose  organic  law  was,  at  the  time  of  the  decision, 
either  silent  or  contained  merely  a  general  declara- 
tion as  to  private  rights  the  necessity  of  compensa- 
tion has  been  recognized ;  Rand.  Em.  Dom.  §  227, 
citing  Bristol  v.  New  Chester,  3  N.  H.  524  ;  In  re 
Mt.  Washington  Road  Co.,  35  N.  H.  134 ;  Harness 
v.  Canal  Co.,  1  Md.  Ch.  248 ;  Bonaparte  v.  R.  Co., 
Baldw.  C.  C.  205,  Fed.  Cas.  No.  1,617  ;  Johnston  v. 
Rankin,  70  N.  C.  550;  Staton  v.  R.  Co.,  Ill  N.  C. 
278,  16  S.  E.  181,  17  L.  R.  A.  S38  ;  Ex  parte  Martin, 
13  Ark.  198,  58  Am.  Dec.  321 ;  see  also  Monongahela 
Nav.  Co.  v.  U.  S.,  148  U.  S.  312,  13  Sup.  Ct.  622,  37 
L.  Ed.  463;  Hazen  v.  Essex  Co.,  12  Cush.  (Mass.) 
475.  The  mistaken  idea  that  the  fifth  amendment 
of  the  constitution  of  the  U.  S.,  applied  to  the 
states,  seems  to  have  contributed  to  this  opinion  in 
some  cases ;  Gardner  v.  Village  of  Newburgh,  2 
Johns.  Ch.  (N.  Y.)  162,  7  Am.  Dec.  526  ;  Scudder  v. 
Falls  Co.,  1  N.  J.  Eq.  694,  23  Am.  Dec.  756.  "The 
true  doctrine  is,  ij  the  writer's  opinion,"  says  the 
author  last  cited,  "that  which  requires  the  payment 
of  compensation  whether  it  be  expressly  enjoined 
or  not.  The  modern  concept  of  a  constitutional  state 
as  realized  in  the  United  States  has  no  room  for 
spoliation  of  the  individual."  The  same  view  is 
supported    in    Mills,    Em.   Dom.    §   1. 

Whatever  view  may  be  taken  of  the  gen- 
eral doctrine  of  the  law  on  this  subject  the 
necessity  of  compensation  is  firmly  imbedded 
in  American  constitutional  law. 

It  may  be  considered  settled  that  the  ex- 
ercise of  the  right  is  not  justifiable,  where 
the  statute  fails  to  provide  compensation ; 
and  the  courts  will,  in  general,  substantially 
declare  such  an  act  unconstitutional;  Sweet 
v.  Rechel,  159  U.  S.  3S0,  16  Sup.  Ct.  43,  40  L. 
Ed.  188 ;  Richmond  v.  Telegraph  Co.,  174  U. 
S.  761,  19  Sup.  Ct.  778,  43  L.  Ed.  1162 ;  U.  S. 
v.  Lynah,  188  U.  S.  445,  485,  23  Sup.  Ct.  349, 
47  L.  Ed.  539;  Barron  v.  City  of  Memphis, 
113  Tenn.  89,  SO  S.  W.  S32,  106  Am.  St.  Rep. 
S10;  Clifton  v.  Town  of  Weston,  54  W.  Va. 
250,  46  S.  E.  360;  Smith  v.  City  of  Sedalia, 
152  Mo.  2S3,  53  S.  W.  907,  48  L.  R.  A.  711; 
East  Shore  Land  Co.  v.  Peckham,  33  R.  I. 
541,  82  Atl.  487;  Higginson  v.  Com'rs,  212 
Mass.  5S3,  99  N.  E.  523,  42  L.  R.  A.  (N.  S.) 
215;  Sea  Cliff  Grove  &  Metropolitan  Camp 
Ground  Ass'n  v.  Steamboat  Co.,  70  Misc.  97, 
127  N.  Y.  Supp.  1021 ;  Kent  339,  n. ;  dicta 
in  4  Term  794;  Louisville,  C.  &  C.  R.  R.  Co. 
v.  Chappell,  Rice  (S.  C.)  3S3;  Stokes  v.  Upper 
Appomatox  Co.,  3  Leigh  (Va.)  337;  Eastman 
v.  Mfg.  Co.,  44  N.  H.  143,  S2  Am.  Dec.  201; 
Wells  v.  R.  Co.,  47  Me.  345 ;  Watkins  v.  Walk- 
er County,  18  Tex.  5S5,  70  Am.  Dec.  298; 
Watson's  Ex'r  v.  Trustees  of  Pleasant  Tp., 
21  Ohio  St.  667 ;  Shute  v.  R.  Co.,  26  111.  436 ; 
Georgia  M.  &  G.  R.  Co.  v.  Ry.  Co.,  89  Ga. 
205,  15  S.  E.  305 ;  Calder  v.  Police  Jury,  44 
La.  Ann.  173,  10  South.  726;  Webster  v.  Ry. 
Co.,  116  Mo.  114,  22  S.  W.  474 ;  Monongahela 
Nav.  Co.  v.  U.  S.,  148  U.  S.  312,  13  Sup.  Ct 
622,  37  L.  Ed.  463 ;   Searl  v.  School  Dist  No. 


EMINENT  DOMAIN 


1013 


EMINENT  DOMAIN 


2,  133  U.  S.  553,  10  Sup.  Ct.  374,  33  L.  Ed. 
740.  See  contra,  Hart  v.  Board  of  Levee 
Com'rs,  54  Fed.  559.  Such  statute  may  be 
treated  by  the  land  owner  as  void ;  Boston  & 
L.  R.  Co.  V.  R.  Co.,  2  Cray  (Mass.)  1;  and  he 
has  the  same  rights  against  a  trespasser  un- 
der color  of  such  authority  as  if  it  did  not 
exist;  Id.;  Proprietors  of  Piscataqua  Bridge 
Co.  v.  Bridge  Co.,  7  N.  II.  35.  Such  an  act 
is,  however,  said  not  to  be  so  far  void  as  not 
to  warrant  the  acquisition  of  the  property 
by  purchase;  Carbon  Coal  &  Min.  Co.  v. 
Drake,  2G  Kan.  345.  This  compensation 
must  be  in  money;  Com.  v.  Peters,  li  .Mass. 
125;  Vanhorne  v.  Dorrance,  2  Dall.  (U.  S.) 
304,  1  L.  Ed.  391;  Murphy  v.  De  Grott,  44 
Cal.  51 ;  Chicago,  M.  &  St  P.  Ry.  Co.  v.  Mel- 
ville, G6  111.  329;  State  v.  Sewer  Com'rs,  39 
N.  J.  L.  G65. 

In  constitutional  construction  the  words 
"just,"  "ample,"  "full,"  "adequate,"  "due," 
etc.,  prefixed  to  the  word  "compensation," 
has  been  said  to  lend  no  appreciable  addi- 
tional weight;  Rand.  Em.  Dom.  §  223;  but 
much  stress  has  often  been  put  upon  it  by 
courts.  The  word  "just"  in  the  fifth  amend- 
ment excludes  the  taking  into  account  as  an 
element  in  the  compensation  any  supposed 
benefit  that  the  owner  may  receive  in.  com- 
mon with  all  from  the  public  uses  to  which 
his  private  property  is  appropriated  and 
leaves  it  to  stand  as  a  declaration  that  no 
private  property  shall  be  appropriated  to 
public  uses  unless  a  full  and  exact  equiva- 
lent for  it  be  returned  to  the  owner ;  Monon- 
gahela  Naw  Co.  v.  U.  S.,  148  U.  S.  32G,  13 
Sup.  Ct  622,  37  L.  Ed.  4G3.  The  word  "just" 
is  not  used  as  an  antithesis  of  unjust,  but 
"evidently  to  intensify  the  meaning  of  the 
word  compensation;"  A'irginia  &  T.  R.  Co.  v. 
Henry,  8  New  165;  it  means  recompense  "all 
circumstances  considered;"  Mclntire  v.  State, 
5  Blaekf.  (Ind.)  3S4,  "to  save  the  owner  from 
suffering  in  his  property  or  estate  .  .  . 
as  far  as  compensation  in  money  can  go ;" 
Bangor  &  P.  R.  Co.  v.  McComb,  60  Me.  290; 
"making  the  owner  good  by  an  equivalent  in 
money;"   Bigelow  v.  R.  Co.,  27  Wis.  478. 

The  Federal  Power.  All  lands  held  by 
private  owners  everywhere  within  the  geo- 
graphical limits  of  the  United  States  are 
subject  to  the  authority  of  the  general  gov- 
ernment to  take  them  for  such  objects  as 
are  germane  to  the  execution  of  the  powers 
granted  to  it ;  Cherokee  Nation  v.  R.  Co.,  135 
U.  S.  641,  10  Sup.  Ct.  9G5,  34  L.  Ed.  295.  The 
federal  government  exercises  its  own  right 
of  eminent  domain  subject  to  the  constitu- 
tional limitations  requiring  compensation;  it 
does  not  proceed  under  the  right  of  the  state 
and  the  measure  of  compensation  in  each 
case  may  be  different;  Town  of  Nahant  v.  U. 
S.,  136  Fed.  273,  70  C.  C.  A.  641,  69  L.  EL  A. 
723,  modified  in  U.  S.  v.  Town  of  Nahant, 
153  Fed.  520,  82  C.  C.  A.  470;  Alexander  v. 
U.  S.,  39  Ct  CI.  3S3;  Burt  v.  Ins.  Co.,  106 
Mass.  356,  8  Am.  Rep.  339;    the  consent  of 


the  state  is  not  necessary  for  the  condemna- 
tion, but  only  for  the  transfer  of  jurisdic- 
tion; People  v.  Humphrey,  23  Mich.  471,  9 
Am.  Rep.  94.  It  has  the  right  in  territory 
acquired  either  by  purchase  or  conquest; 
People  v.  Folsom,  5  Cal.  373. 

The  right  of  eminent  domain  is  one  of  the 
powers  of  the  federal  government  essential 
to  its  independent  existence  and  perpetuity. 
Among  the  purposes  for  which  it  is  e.\t  : 
are  the  acquisition  of  lands  for  forts,  ar- 
mories, arsenals,  navy  yards,  light-hi 
custom-houses,  post-offices,  court-houses,  and 
other  public  uses.  The  right  may  be 
cised  within  the  states  without  application  to 
them  for  permission  to  exercise  it;  Kohl  v. 
U.  s.,  91  U.  S.  367,  23  L.  Ed.  449;  the  fact 
that  the  power  has  not  been  exercised  ad- 
versely does  not  disprove  its  existence,  nor 
does  the  fact  that  in  some  instances  the 
states  have  condemned  lands  for  the  I 
the  general  government;  id.  It  is  a  right 
belonging  to  a  sovereignty  to  take  private 
property  for  its  own  public  uses  but  not  for 
those  of  another;  hence  the  power  of  the 
United  States  must  be  complete  in  itself,  it 
can  neither  be  enlarged  nor  diminished,  nor 
can  the  manner  of  its  exercise  be  regulated 
by  the  state  whose  consent  is  not  a  condi- 
tion precedent  to  its  enjoyment ;    id. 

Originally  the  method  of  proceeding  was 
usually  for  the  state  to  condemn  lands  for 
the  United  States  when  needed  by  the  hitter; 
Orr  v.  Quimby,  54  N.  II.  590;  U.  S.  v.  Dump 
liu  Island,  1  Barb.  (N.  Y.)  24;  Gilmer  v. 
Lime  Point,  18  Cal.  229 ;  Burt  v.  Ins.  Co.,  106 
Mass.  356,  8  Am.  Rep.  339;  and  the  power 
has  been  delegated  by  the  state  to  the  United 
States  within  a  comparatively  recent  period; 
In  re  Certain  Land  in  Lawrence,  119  Fed. 
453;  but  this  method  is  not  only  unnecessary, 
but  is  not  based  on  correct  principles,  since 
the  absolute  and  unqualified  power  belongs 
to  the  federal  government,  and  that  method 
has  been  disapproved ;  Kohl  v.  U.  S.,  91  U. 
S.  367,  23  L.  Ed.  449;  Reddall  v.  Bryan.  11 
Md.  444,  74  Am.  Dec.  550;  In  re  Appoint- 
ment of  U.  S.  Com'rs,  96  N.  V.  227.  When 
the  taking  of  property  is  authorized  bj  con- 
gress, the  proceedings  are  carried  on  under 
federal  law;  Town  of  Nahant  v.  U.  S.,  136 
Fed.  273,  70  C.  C.  A.  641,  69  L  B,  A.  723. 

The  United  States  cannot  take  state  prop- 
erty devoted  to  a  public  use  and  the  1 
which  would  Interfere  with  the  performance 
of  its  duties  by  the  state.  It  was  on  this 
principle  that  the  right  to  tax  a  state  judi- 
cial officer  upon  his  salary  was  denied  to  the 
United  States;  The  Collector  v.  Day.  11 
Wall.  (U.  S.)  113,  20  L.  Ed.  122:  hut  the 
United  States  may  acquire  an  easement  in 
the  property  of  a  state  which  does  not  inter- 
fere with  its  ordinary  use,  as  by  the  placing 
of  telegraph  poles,  under  a  federal  authority, 
upon  state  roads;  City  of  St.  Louis  v.  Tele- 
graph Co..  14S  U.  S.  92.  13  Sup.  Ct  485,  ::7 
L.  Ed.  3S0;    City  of  Richmond  v.  Telegraph 


EMINENT  DOMAIN 


1014 


EMINENT  DOMAIN 


Co.,  174  U.  S.  761,  19  Sup.  Ct.  778,  43  L.  Ed. 
1162. 

It  has  been  said  that  a  necessity  of  the 
federal  government  would  override  the  right 
of  the  state  to  the  occupancy  of  property  for 
public  use — that  what  was  devoted  to  a  lo- 
cal public  use  might  be  taken  for  a  higber 
national  use;  New  Orleans  v.  U.  S.,  10  Pet. 
(U.  S.)  662,  723,  9  L.  Ed.  573;  and  it  was 
said  by  Bradley,  J.,  that  "if  it  is  necessary 
that  the  United  States  government  should 
have  an  eminent  domain  still  higher  than 
that  of  the  state,  in  order  that  it  may  fully 
carry  out  the  .objects  and  purposes  of  the 
constitution,  then  it  has  it" ;  Stockton  v.  R. 
Co.,  32  Fed.  9;  it  has  paramount  authority 
in  the  matter  of  taking  any  property  within 
its  borders  for  those  public  uses  which  are 
within  the  constitutional  reservations  to  the 
general  government;  U.  S.  v.  City  of  Tiffin, 
190  Fed.  279;  and  in  the  Northern  Securi- 
ties Case  it  was  said  that  state  legislation, 
even  if  in  the  exercise  of  its  unquestioned 
power,  must  yield,  in  case  of  conflict,  to  the 
supremacy  of  the  United  States  constitution 
and  the  acts  of  congress  passed  pursuant  to 
it;  Northern  Securities  Co.  v.  U.  S.,  193  U. 
S.  197,  24  Sup.  Ct.  436,  48  L.  Ed.  679.  As  to 
the  nature  and  extent  of  power  of  condem- 
nation of  the  United  States,  see  note,  70  C.  C. 
A.  653. 

On  the  other  hand,  the  state  cannot  con- 
demn land  held  by  the  United  States  and 
used  for  public  purposes;  U.  S.  v.  Chicago, 
7  How.  (U.  S.)  185,  12  L.  Ed.  660 ;  nor  can  a 
territory  ;  Pratt  v.  Brown,  3  Wis.  603.  With 
respect  to  land  not  used  for  public  purposes 
of  which  the  United  States  is  considered  as 
a  private  proprietor,  it  has  been  held  that 
such  land  might  be  taken;  Hendricks  v. 
Johnson,  6  Port.  (Ala.)  472;  U.  S.  v.  R. 
Bridge  Co.,  6  McLean  517,  Fed.  Cas.  No. 
16,114,  approved  by- a  dictum  in  U.  S.  v.  Chi- 
cago, 7  How.  (U.  S.)  185,  12  L.  Ed.  660,  and 
apparently  disapproved  in  Van  Brocklin  v. 
Tennessee,  117  U.  S.  151,  6  Sup.  Ct.  670,  29 
L.  Ed.  845,  where  Gray,  J.  suggests  that  the 
question,  will,  when  raised,  require  careful 
consideration.  When  the  state  has  ceded 
land  to  the  federal  government  it  has  lost  its 
jurisdiction  entirely;  Ft.  Leavenworth  R. 
Co.  v.  Lowe,  114  U.  S.  525,  5  Sup.  Ct.  995,  29 
L.  Ed.  264 ;  U.  S.  v.  Cornell,  2  Mas.  60,  Fed. 
Cas.  No.  14,867 ;  People  v.  Godfrey,  17  Johns. 
(N.  Y.)  225;  Mitchell  v.  Tibbetts,  17  Pick. 
(Mass.)  298 ;  Sinks  v.  Reese,  19  Ohio  St.  306, 
2  Am.  Rep.  397 ;  and  hence  the  state  cannot 
condemn  land  within  the  ceded  district;  U. 
S.  v.  Ames,  1  Woodb.  &  M.  76,  Fed.  Cas.  No. 
14,441 ;  In  re  Opinion  of  the  Justices,  1 
Mete.  (Mass.)  580.  But  when  land  has  been 
acquired  by  the  United  States  without  the 
consent  of  the  state,  the  state  retains  its  ju- 
risdiction and  may  act  with  respect  to  it,  so 
far  as  it  does  not  interfere  with  the  use  of 
the  property  by  the  United  States ;  Ft.  Leav- 
enworth R.  Co.  v.  Lowe,  114  U.  S.  525,  5  Sup. 


Ct.  995,  29  L.  Ed.  264;  but  whether  in  the 
exercise  of  this  jurisdiction  there  is  included 
the  power  of  condemnation  remains  an  open 
question ;    Nichols,  Em.  Dom.  §  25. 

The  state  may  condemn  for  another  public 
use  the  land  of  an  interstate  railroad  charter- 
ed by  congress  if  it  does  not  interfere  with  its 
operation ;  Union  Pac.  Ry.  Co.  v.  R.  Co.,  3 
Fed.  106;  Northern  Pac.  Ry.  Co.  v.  Ry.  Co., 
3  Fed.  702 ;  Union  Pac.  Ry.  Co.  v.  R.  Co.,  29 
Fed.  728. 

A  federal  court  may  require  proceedings 
to  condemn  a  crossing  over  a  railroad,  in  the 
hand  of  a  receiver  appointed  by  it,  to  be 
brought  within  its  jurisdiction ;  Buckhan- 
non  &  N.  R.  Co.  v.  Davis,  135  Fed.  707,  68 
C.  C.  A.  345 ;  and  when  the  owner  of  the 
land  and  the  party  seeking  to  condemn  it  are 
citizens  of  the  same  state,  the  condemnation 
proceedings  may  be  begun  in,  or  removed  to, 
the  federal  court;  Mississippi  &  R.  River 
Boom  Co.  v.  Patterson,  98  U.  S.  403,  25  L. 
Ed.  206;  Madisonville  Traction  Co.  v.  Min. 
Co.,  196  U.  S.  239,  25  Sup.  Ct.  251,  49  L.  Ed. 
462;  Kansas  City  v.  Hennegan,  152  Fed.  249 ; 
Deepwater  R.  Co.  v.  Lumber  Co.,  152  Fed. 
824;  but  it  must  follow  the  procedure  of 
the  state  statute;  East  Tennessee,  Va.  & 
Ga.  R.  Co.  v.  Telegraph  Co.,  112  U.  S.  306, 
5  Sup.  Ct.  168,  28  L.  Ed.  746;  Broadmoor 
Land  Co.  v.  Curr,  142  Fed.  421,  73  C.  C.  A. 
537. 

This  right  exists  in  the  District  of  Colum- 
bia, the  territories,  and  lands  within  the 
United  States  acquired  through  cession ; 
Shoemaker  v.  U.  S.,  147  U.  S.  282.  13  Sup. 
Ct.  361,  37  L.  Ed.  170. 

The  power  of  eminent  domain  in  the  gen- 
eral government  as  exercised  for  local  pur- 
poses in  the  District  of  Columbia  is  the  same 
as  that  exercised  by  a  state  within  its  own 
territory ;  Shoemaker  v.  U.  S.,  147  U.  S.  282, 
13  Sup.  Ct.  361,  37  L.  Ed.  170 ;  there  and  in 
the  territories  it  exists  in  all  cases  in  which 
a  similar  power  could  be  exercised  by  the 
states;  First  Nat.  Bank  v.  County  of  Yank- 
ton, 101  U.  S.  129,  25  L.  Ed.  1046.  It  is 
among  the  powers  derived  by  the  territorial 
governments  immediately  from  the  United 
States  ;  Swan  v.  Williams,  2  Mich.  427  ;  Oury 
v.  Goodwin,  3  Ariz.  255,  26  Pac.  376;  New- 
comb  v.  Smith,  1  Chand.  (Wis.)  71. 

Within  the  states  the  United  States  has 
the  right  of  eminent  domain  for  federal  pur- 
poses;  Kohl  v.  U.  S.,  91  U.  S.  367,  23  L. 
Ed.  449;  Cherokee  Nation  v.  Ry.  Co.,  135 
U.  S.  641,  10  Sup.  Ct.  965,  34  L.  Ed.  295.  This 
power  has  been  exercised  to  condemn  land 
for  military  posts ;  U.  S.  v.  Chicago,  7  How. 
(U.  S.)  185,  12  L.  Ed.  660;  fortification; 
Gilmer  v.  Lime  Point,  18  Cal.  229;  naviga- 
tion work;  King  v.  U.  S.,  59  Fed.  9;  light- 
house and  coast  survey  purposes;  Orr  v. 
Quimby,  54  N.  H.  590 ;  Chappell  v.  U.  S.,  160 
U.  S.  499,  16  Sup.  Ct.  397,  40  L.  Ed.  510; 
the  construction  of  interstate  railroads ;  Cali- 


EMINENT  DOMAIN 


1015 


EMINENT  DOMAIN 


fornia  v.  R.  Co.,  127  U.  S.  1,  8  Sup.  Ct.  1073, 
32   L.    Ed.    150;     water   supply;     Reddall   v. 
Bryan.  14  Md.  444,  74  Am.  Dec.  550;    post- 
Offlce;    Kohl  v.  U.  S.,  91  U.  S.  367,  23  L.  Ed. 
440;    Burt  v.  Ins.  Co.,  10G  Mass.  350,  8  Am. 
Rep.   3.'59 ;    a   national   cemetery    at   Gettys- 
burg ;    U.  S.  v.  Ry.  Co.,  160  U.  S.  6G8,  16  Sup. 
Ct.  427,  10  L.  Ed.  576.     The  weight  of  au- 
thority is  in  favor  of  the  exercise  of  the  right 
by  the  United  States  directly  when  property 
is   required    for    federal    purposes   and    not 
through  the  right  of  eminent  domain  of  the 
state;    Reddall  v.  Bryan,  14  Md.  444,  74  Am. 
Dec.    550;     In    re    Appointment    of    United 
States  Commissioners,  96  N.  Y.  227;  though 
the  latter  method  is  upheld  in  some  cases; 
U.  S.  v.  Dumplin  Island,  1  Barb.  (N.  Y.)  24; 
Burt  v.  Ins.  Co.,  106  Mass.  356,  8  Am.  Rep. 
339;    Orr  v.  Quiinby,  54  N.   H.  590;   but  it 
is   held  that   the   United   States   may   dele- 
gate to  a  tribunal  created   under  the  laws 
of  the  state  the  power  to  fix  and  determine 
the  amount  of  compensation   to  be  paid  by 
the  federal  government  for  private  property 
taken  by  it  in  the  exercise  of  the  right  of 
eminent  domain;    U.  S.  v..  Jones,  109  U.  S. 
513,  3   Sup.   Ct  346,   27   L.   Ed.   1015.     The 
United   States  circuit  court  has  jurisdiction 
to   entertain   proceedings   instituted    by   the 
United  States  to  appropriate  land  for  a  post- 
office  ;    Kohl  v.  U.  S.,  91  U.  S.  367,  23  L.  Ed. 
449.     In  this  case  there  was  no  act  of  con- 
gress relating  to  the  subject  except  the  ap- 
propriation of  money,  and  a  direction  to  the 
secretary  of  the  treasury  to  purchase  a  site, 
and  the  jurisdiction  was  objected  to.     The 
supreme  court  held  that  the  proceedings  were 
a  suit  at  law  and  cognizable  under  the  gen- 
eral provisions  of  the  judiciary  act.     As  to 
the  federal   right,  see  Chattaroi  Ry.  Co.  v. 
Kinner,  14  Am.  &  Eng.  R.  R.  Cas.  30;    Kohl 
v.  U.  S.,  91  U.   S.  367,  23  L.  Ed.  449.     The 
state  cannot  condemn  for  the  United  States 
and  bind  the  latter  as  to  compensation ;  Peo- 
ple v.  Humphrey,  23  Mich.  471,  9  Am.  Rep. 
94,  in  which  the  whole  subject  of  the  exer- 
cise of  this  right  by  state  and  federal  gov- 
ernments was  considered  by  Cooley,  J.     Pro- 
ceedings may  be  in  the  United  States  courts, 
or  in  state  courts,  in  the  name  of  the  United 
States,  and  state  practice  should  be  follow- 
ed ;  In  re  Appointment  of  United  States  Com- 
missioners, 96  N.  Y.  227 ;    Jones  v.  U.  S.,  48 
Wis.  385,  4  N.  W.  519;    U.  S.  v.  Jones,  109 
U.   S.  513,  3  Sup.  Ct  346,  27  L.   Ed.   1015; 
or  may  by  act  of  congress  be  made  to  follow 
some  state  statute;    Darlington  v.  U.  S.,  S2 
Pa.  3S2,  22  Am.  Rep.  766. 

Public  uses  of  the  federal  government  have 
been  held  to  be  public  uses  of  the  suite;  Red- 
dall v.  Bryan,  14  Md.  444,  74  Am.  Dec.  550. 

Proceedings  under  state  laws  for  condem- 
nation of  lands,  involving  the  ascertainment 
by  judicial  proceedings  of  the  value  of  prop- 
erty to  be  paid  as  compensation,  may  be  re- 
moved to  the  United  States  court;  Searl  v. 
School  Dist.  No.  2,  124  C.  S.  197,  S  Sup.  Ct. 


460,  31  L.  Ed.  415;  Sugar  Creek,  P.  B.  &  P. 
C.  R.  Co.  v.  McKeil,  75  Fed.  34;  if  they 
take  the  form  of  a  proceeding  before  the 
courts:  Mississippi  &  B.  R.  Boom  Co.  v.  Pat- 
terson, 9S  U.  S.  403,  25  L.  Ed.  206;  the  pre- 
liminary proceedings  are  in  the  nature  of  an 
inquest  and  not  a  "suit,"  but  when  trai 
red  into  the  state  court  by  appeal  it  I • 
one;  id.;  Hastings  Lumber  Co.  v.  Garland, 
115  Fed.  IS,  52  C.  C.  A.  809.  As  to 
of  Buch  proceedings,  see  25  Am.  L.  R<  -.  L83. 
The  Power  of  the  States.  The  right  ol 
eminent  domain  is  also  an  attribute  or  part 
of  the  sovereignty  of  the  states,  and  i-  by 
them  exercised  for  a  great  and  constantly 
increasing  variety  of  purposes,  seine  of  which 
are  for  governmental  uses  either  of  the  state 
at  large  or  of  local  municipal  bodies,  or  by 
private  persons  or  corporations  authorized  to 
exercise  some  function  of  such  public  char- 
acter, technically  known  as  a  public  use. 

It  is  also  true  that  a  state  cannot  con- 
demn property  within  its  borders  for  the 
use  of  another  state ;  Kohl  v.  U.  S.,  91  U.  S. 
3G7,  23  L.  Ed.  449;  and  a  state  statute  is 
constitutional  which  forbids  a  riparian  own- 
er from  diverting  the  water  of  a  river  for 
the  use  of  a  city  in  another  state;  Hudson 
County  Water  Co.  v.  McCarter,  209  U.  S. 
349,  28  Sup.  Ct  529,  52  L.  Ed.  828,  14  Ann. 
Gas.  560;  but  a  statute  of  one  state  author- 
izing condemnation  of  a  water  supply  for 
use  in  a  canal  in  another  state  was  sus- 
tained on  the  ground  that  the  work  was  also 
of  great  benefit  to  the  former  state;  In  re 
Townsend,  39  N.  Y.  171. 

When  the  right  of  eminent  domain  is  con- 
ferred upon  private  persons'  or  corporations 
the  right  is  termed  by  some  writers  the  dele- 
gated power  of  eminent  domain ;  4  Thomp. 
Corp.  ch.  exxii. ;  and  such  person  or  cor 
tion  is  the  agent  of  the  state  for  its  exercise. 
Delegation  of  Power.  The  power  may  be 
delegated  ;  Brayton  v.  City  of  Fall  River,  124 
Mass.  95;  but  it  can  only  be  exercised  by  a 
private  individual  or  corporation  by  express 
legislative  authority;  Minnesota  Canal  ^v 
Power  Co.  v.  Koochiching  Co..  :<7  Minn.  429, 
107  N.  W.  405,  5  L.  R.  A.  (N.  S.)  638,  7 
Ann.  Cas.  1182;  it  may  be  conferred  upon  a 
municipality  for  laying  out  and  establishing 
s;  st.  Louis  &  S.  F.  R.  Co.  v.  Fayette- 
ville,  75  Ark.  534,  87  S.  W.  1174  (but  it  is 
not  implied  from  a  mere  grant  of  authority 
to  establish  new  streets;  Georgia  R.  &  B. 
Co.  v.  Mayor,  etc.,  of  Union  Point,  i: 
809,  47  S.  E.  183);  constructing  drains; 
Hutchins  v.  Drainage  Dist.,  217  111.  561,  7-" 
N.  E.  354;  establishing  water  works;  In  re 
Petition   of   Board    of  Water  Com-  Vii 

Lage  of  White  Plains,  17G  X.  Y.  239,  68  N.  E. 
348;  Dallas  v.  Hallock,  44  Or.  246,  75  Pac. 
204;  laying  out  parks  and  parkways;  City 
of  Memphis  v.  Hastings,  113  Tenn.  142,  86 
S.  W.  »'>'".>,  69  L.  R.  A.  750  (but  a  municipal 
corporation  cannot  exercise  the  right  beyond 
its  corporate  limit   without  express  legishi- 


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1016 


EMINENT  DOMAIN 


live  authority;  City  of  Puyallup  v.  Lacey, 
43  Wash.  110,  86  Pac.  215)  ;  a  railroad  com- 
pany for  obtaining  gravel  and  other  ma- 
terial ;  Hopkins  v.  R.  Co.,  97  Ga.  107,  25  S. 
E.  452;  for  building  bridges  and  approaches 
thereto;  Southern  I.  &  M.  Bridge  Co.  v. 
Stone,  174  Mo.  1,  73  S.  W.  453,  63  L.  R.  A. 
301;  and  tunnels;  McEwan  v.  R.  Co.,  72  N. 
J.  L.  419,  60  Atl.  1130.  Railroad  companies 
may  acquire  a  title  in  fee  simple  if  the  leg- 
islature authorizes  it  to  do  so;  Challiss  v. 
R.  Co.,  16  Kans.  117.  A  de  facto  railroad 
corporation  may  exercise  the  right  inasmuch 
as  Its  legal  existence  can  only  be  questioned 
by  the  state  in  a  direct  proceeding  for  that 
purpose ;    Reisner   v.    Strong,   24   Kans.   410. 

Strictly  speaking  it  is  not  accurate  to  say 
that  the  state  delegates  a  right  of  sovereign- 
ty, of  which  it  cannot  divest  itself,  hence  it 
is  more  exact  to  speak  of  it  as  exercising 
the  power  through  an  agent.  While  corpora- 
tions are  usually  selected  for  such  agency, 
it  may  be  and  sometimes  is  conferred  upon 
individuals ;  Young  v.  Buckingham,  5  Ohio 
485 ;  Ash  v.  Cummings,  50  N.  H.  591 ;  Calk- 
ing v.  Baldwin,  4  Wend.  (N.  Y.)  667,  21  Am. 
Dec.  168;  Moran  v.  Ross,  79  Cal.  159,  21 
Pac.  833;  and  where  incorporation  and  a 
franchise  were  granted  to  an  individual 
"and  associates"  it  was  held  that  he  need 
not  associate  any  one  with  him ;  Day  v.  Stet- 
son, 8  Greenl.  (Me.)  365.  It  has  also  been 
held  that  an  individual  as  purchaser  of  a 
railroad  and  franchises  at  the  foreclosure 
sale  acquired  the  right  to  condemn  lands; 
Morgan  v.  Louisiana,  93  U.  S.  217,  23  L.  Ed. 
860.  In  one  case  it  is  said  that  a  statute 
neither  did  nor  could  confer  this  right  "upon 
private  persons,  but  only  corporations  organ- 
ized for  public  purposes  can  be  clothed  with 
such  privileges;"  Finney  v.  Somerville,  80 
Pa.  59 ;  but  this  expression,  so  far  as  it  con- 
cerns the  power  of  the  legislature,  .  was 
obiter;  and  a  case  often  cited  with  this  only 
decides  that  under  a  general  act,  then  un- 
der construction,  the  power  could  not  be  ex- 
ercised by  individuals,  because  there  was 
no  provision  of  law  for  its  exercise  by  in- 
dividuals; Coe  v.  R.  Co.,  10  Ohio  St.  372,  75 
Am.  Dec.  518. 

The  exercise  of  the  power  by  such  agen- 
cies is  governed  in  the  main  by  the  same 
principles  and  limitations  as  when  it  is  di- 
rectly exerted  by  the  federal  or  state  govern- 
ment, and  the  exceptions  to  this  rule  readily 
disclose  themselves  in  the  consideration  of 
the  natural  divisions  of  the  subject.  When 
its  exercise  by  a  private  corporation  is  au- 
thorized it  has  been  termed  not  a  franchise 
but  a  means  to  the  enjoyment  of  corporate 
franchises;  Coe  v.  R.  Co.,  10  Ohio  St.  372, 
75  Am.  Dec.  518;  but  the  contrary  view  was 
expressed  by  Bradley,  J.,  in  California  v.  R. 
Co.,  127  XL  S.  1,  8  Sup.  Ct.  1073,  32  L.  Ed. 
150;  "a  power  conferred  upon  certain  cor- 
porations, which  is  not  possessed  by  the  citi- 
zens generally,   and   which  is  in  derogation 


of  their  rights,  so  nearly  resembles  a  fran- 
chise as  to  justify  its  treatment"  under  that 
title ;  4  Thomp.  Corp.  §  5587.  The  use  of  the 
term  franchise  is  not  defined,  by  those  who 
most  use  it,  with  sufficient  precision  to  be 
conclusive  against  either  view.  It  is  as 
much  a  franchise,  if  one  at  all,  if  exercised 
by  an  individual  as  a  corporation,  though 
the  writer  quoted  seems  to  overlook  the  pos- 
sibility of  this.  It  is,  however,  a  grant  of 
power  or  privilege  from  the  sovereign  to 
the  citizen  or  subject,  to  do  what  would 
but  for  the  grant  be  unlawful,  and  it  un- 
doubtedly does  come  within  the  usually  ac- 
cepted definition  of  the  word  franchise  (q.  v.). 
As  is  true  with  respect  to  franchises  gener- 
ally, the  grant  of  the  power  is  never  presum- 
ed unless  the  intent  to  part  with  it  is  clearly 
expressed ;  id.  §  5588 ;  Lewis,  Em.  Dom.  § 
240 ;  Appeal  of  Pennsylvania  R.  Co.,  93  Pa. 
150;  Butler  v.  Mayor,  etc.,  of  Thomasville, 
74  Ga.  570 ;  Schmidt  v.  Densmore,  42  Mo. 
225 ;  Chamberlain  v.  Steam  Cordage  Co.,  41 
N.  J.  Eq.  43,  2  Atl.  775;  and  its  exercise  by 
the  state  may  determine  a  preceding  con- 
tract made  by  the  state  without  impairing 
the  obligation  of  such  contract,  the  right 
itself  being  always  reserved  by  implication, 
if  not  expressly ;  Tait's  Ex'r  v.  Central  Luna- 
tic Asylum,  84  Va.  271,  4  S.  E.  697. 

It  is  no  objection  to  a  grant  of  the  power 
to  a  corporation  that  the  latter  is  seeking 
to  effect  its  own  private  gain;  4  Thomp. 
Corp.  §  5589;  for  that  is  said  to  be  merely 
compensation  for  the  risk  assumed  for  the 
benefit  of  the  public ;  Concord  R.  R.  v.  Gree- 
ly,  17  N.  H.  47.  When  unrestrained  by  con- 
stitutional provision,  the  discretion  of  the 
legislature  in  selecting  agents  through  whom 
the  power  is  to  be  exercised  is  absolute.  In 
a  state  whose  constitution  prohibits  its  exer- 
cise by  foreign  corporations  they  cannot  of 
course  act  unless  domesticated  in  the  state ; 
St.  Louis  &  S.  F.  R.  Co.  v.  Foltz,  52  Fed.  627 ; 
but  otherwise  they  may  do  so;  New  York, 
N.  H.  &  H.  R.  Co.  v.  Welsh,  143  N.  Y.  411, 
38  N.  E.  378,  43  Am.  St.  Rep.  734 ;  New  York 
&  E.  R.  Co.  v.  Young,  33  Pa.  175;  Dodge  v. 
City  of  Council  Bluffs,  57  la.  560,  10  N.  W. 
886;  but  a  constitutional  incapacity  cannot 
be  avoided  by  acting  through  a  domestic 
corporation;  Koening  v.  R.  Co.,  27  Neb.  699, 
43  N.  W.  423  (see  State  v.  Scott,  22  Neb. 
628,  36  N.  W.  121)  ;  though  by  consolidating 
with  a  domestic  corporation  it  may  exercise 
the  power;  Toledo,  A.  A.  &  G.  T.  R.  Co.  v. 
Dunlap,  47  Mich.  456,  11  N.  W.  271;  In  re 
St.  Paul  &  N.  P.  R.  Co.,  36  Minn.  85,  30  N. 
W.  432;  as  thereby  the  consolidated  com- 
pany becomes  a  corporation  of  the  state; 
Trester  v.  R.  Co.,  33  Neb.  171,  49  N.  W.  1110. 
Foreign  Corporations.  A  state  cannot  con- 
fer upon  any  corporation,  public,  quasi  pub- 
lic or  private,  the  power  to  exercise  the 
right  of  eminent  domain  outside  of  its  own 
limits ;  St,  Louis  &  S.  F.  R.  Co.  v.  Telegraph. 


EMINENT  DOMAIN 


1017 


EMINENT  DOMAIN 


Co.,  121  Fed.  276,  58  C.  C.  A.  198 ;  Chestatee 
Pyrites  Co.  v.  Mining  Co.,  119  Ga.  354,  4G  S. 
E.  422;  100  Am.  St.  Rep.  174;  Helena  Pow- 
er Co.  v.  Spratt,  35  Mont.  108,  88  Pac.  773, 
8  L.  R.  A.  (N.  S.)  507,  10  Ann.  Cas.  1055; 
Duke  v.  Cable  Co.,  71  S.  C.  95,  50  S.  E.  675 ; 
but  tbe  fact  that  a  corporation  duly  organ- 
ized under  the  law  of  the  state  is  subsidiary 
to  a  foreign  corporation  does  not  affect  its 
right  to  exorcise  such  power;  Oregon  Short 
Line  R.  Co.  v.  Cable  Co.,  Ill  Fed.  842,  49 
O.  C.  A.  CG3.  A  domesticated  foreign  corpo- 
ration may,  in  the  absence  of  constitutional 
prohibition,  be  authorized  by  statute  to  ex- 
ercise the  power  within  a  state;  Columbus 
Water  Works  Co.  v.  Long,  121  Ala.  245,  25 
South.  702 ;  Illinois  State  Trust  Co.  v.  R.  Co., 
208  111.  419,  70  N.  E.  357;  Southern  Illinois 
ic  M.  Bridge  Co.  v.  Stone,  174  Mo.  1,  73  S. 
W.  453,  G3  L.  R.  A.  301  ;  In  re  New  York  & 
N.  H.  Co.  (In  re  Marks)  53  Hun  033,  G  N. 
Y.  Supp.  105;  Abbott  v.  Railroad,  145  Mass. 
450,  15  N.  E.  91 ;  New  York  &  Erie  R.  Co.  v. 
Young,  33  Pa.  175 ;  or  the  district  of  Alaska ; 
St.  Louis  &  S.  F.  R.  Co.  v.  Telephone  &  Tele- 
graph Co.,  121  Fed.  276,  58  C.  C.  A.  19S. 

Statutes  conferring  the  power  of  eminent 
domain  are  to  be  construed  strictly;  God- 
dard  v.  Ry.  Co.,  202  111.  3G2,  66  N.  E.  106G ; 
Chesapeake  &  O.  Ry.  Co.  v.  Walker,  100  Va. 
69,  40  S.  E.  633,  914 ;  State  v.  Superior  Court 
for  Chelan  County,  36  Wash.  381,  78  Pac. 
1011;  City  of  Puyallup  v.  Lacey,  43  Wash. 
110,  86  Pac.  215;  aliter,  Petersburg  School 
Dist.  v.  Peterson,  14  N.  D.  344,  103  N.  W. 
756. 

The  power  can  only  be  delegated  for  a 
public  use;  People  v.  R.  Co.,  2  McCarty,  Civ. 
Pro.  (N.  Y.)  345;  a  statute  authorizing  a 
telegraph  company  to  construct,  maintain, 
and  operate  its  lines  over  and  along  any 
military  or  post  road  of  the  United  States 
does  not  confer  authority  to  condemn  a  right 
of  way  over  private  property ;  Western  Un- 
ion Telegraph  Co.  v.  R.  Co.,  195  U.  S.  540, 
25  Sup.  Ct.  133,  49  L.  Ed.  312,  1  Ann.  Cas. 
517;  land  may  be  taken  for  a  private  road 
if  it  is  open  to  the  public ;  County  of  Madera 
v.  Granite  Co.,  139  Cal.  128,  72  Pac.  915; 
the  laying  out  of  private  roads  may  be  au- 
thorized ;  Dickinson  Township  Road.  23  Pa. 
Super.  Ct.  34;  contra,  Beaudrot  v.  Murphy, 
53  S.  C.  118,  30  S.  E.  825 ;  Varner  v.  Martin, 
21  W.  Va.  534. 

How  the  Question  of  Public  Use  is  Deter- 
mined. It  is  well  settled  that  the  power  ex- 
ists only  in  cases  where  the  public  exigency 
demands  its  exercise.  See  remarks  of  Wood- 
bury, J.,  and  cases  cited  by  him  in  West  Riv- 
er Bridge  Co.  v.  Dix,  6  How.  (U.  S.)  545, 
12  L.  Ed.  535.  But  the  practice  of  all  the 
states  and  of  the  federal  government,  since 
this  decision,  in  condemning  land  for  pur- 
poses of  public  convenience  but  not  neces- 
sity, has  been  so  frequent  that  the  legislative 
control  over  the  necessity  and  the  particular 


location  is  almost  universally  conceded. 
Mills,  Em.  Dom.  §  11  ;  Nichols,  Em.  Dom.  ch. 
liii.  In  a  proceeding  to  condemn  land,  the 
term  "necessary"  does  not  mean  that  it  is 
indispensable  or  Imperative,  but  only  that  it 
is  convenient  and  useful ;  and  if  an  improve- 
ment is  useful,  and  a  convenience  and  bene- 
fit to  the  public  sufficient  to  warrant  tin-  ex- 
pense in  making  it,  then  it  is  Decessary; 
Com'rs  of  Parks  and  Boulevards  of  City  of 
Detroit  v.  Moesta.  91  Midi.  149,  51  N.  W. 
903;  but  it  is  no  ground  for  a  right  to  take 
land  that  its  resources  could  be  utilized  at  a 
much  less  expense  than  the  land  a 
owned;  Spring  Valley  Water  Works  v.  San 
Mateo  Water  Works.  64  Cal.  123,  28  Par. 
447.  In  4  Thomp.  Corp.  §  5593,  in  concludiir.: 
a  discussion  of  the  various  theories  as  to 
what  uses  are  public  uses,  the  author  says: 
"But  it  is  a  sound  conclusion  that  the  use 
must  be  a  public  use  in  the  sense  that  it  is 
open  to  such  members  of  the  public  as  may 
choose  to  use  it  upon  the  performance  of 
reasonable  or  proper  conditions ;  or  in  the 
sense  of  satisfying  a  great  public  want  or 
exigency.  On  the  other  hand,  where  the 
public  use  is  not  compulsory,  but  is  optional 
with  the  private  corporation  seeking  the 
condemnation,  it  is  not  a  public  use."  In 
U.  S.  v.  Ry.  Co.,  160  U.  S.  608.  16  Sup. 
Ct.  427,  40  L.  E.l.  576,  it  was  said:  "The 
constitution  provides  that  private  proper- 
ty shall  not  be  taken  for  public  uses  with- 
out just  compensation.  These  words  are  a 
limitation,  the  same  in  effect  as  'You  shall 
not  exercise  this  power  except  for  public 
use.' " 

The  legislature  cannot  so  determine  that 
the  use  is  public  as  to  make  its  determina- 
tion conclusive  on  the  courts,  and  the  ex- 
istence of  a  public  use  in  any  class  of  cases 
is  a  question  for  the  courts ;  Tyler  v.  Beach- 
er,  44  Vt.  648.  8  Am.  Rep.  39S;  Varner  v. 
Martin,  21  W.  Va.  534;  McQuillen  v.  Hatton, 
42  Ohio  St.  202;  New  Central  Coal  Co.  v. 
George's  Creek  Coal  &  Iron  Co.,  37  Md.  537; 
Consolidated  Channel  Co.  v.  R.  Co.,  51  Cal. 
269;   Sadler  v.  Langham,  34  Ala.  311. 

The  Missouri  constitution  provides,  as  do 
those  of  Colorado,  Mississippi,  and  Washing- 
ton, that  it  shall  be  'a  judicial  question 
whether  the  use  contemplated  is  public  and 
that  question  will  be  determined  without  the 
aid  of  a  jury;  City  of  Savannah  v.  Hancock, 
91  Mo.  54,  3  S.  W.  215. 

The  Massachusetts  Bill  of  Rights  uses  the 
term  "public  exigency"  and  the  existence  of 
one  was  said  by  Shaw,  C.  J.,  to  be  made  by 
implication  a  prerequisite:  Harback  v.  City 
of  Boston,  10  Cush.  (Mass.)  295.  There  is 
a  similar  provision  in  Maine,  and  in  both 
states  the  rule  making  the  necessity  a  legis- 
lative question  is  followed  as  in  other  states  ; 
Lynch  v.  Forbes,  1G1  Mass.  302.  37  N.  E. 
437.  42  Am.  St.  Rep.  402 ;  Hayford  v.  City  of 
Bangor,  102  Me.  340,  66  Atl.  731,  11  L.  R.  A. 


EMINENT  DOMAIN 


1018 


EMINENT  DOMAIN 


( N.  S.)  940.  The  .Michigan  constitution  re- 
quires the  necessity  of  all  takings,  except 
by  the  state,  to  be  determined  by  a  jury,  and 
in  Wisconsin  a  similar  provision  applies  to 
condemnation  by  municipal  corporations. 

The  presumption  is  in  favor  of  the  public 
character  of  a  use  declared  so  by  the  legis- 
lature;  Appeal  of  Edgewood  R.  Co.,  79  Pa. 
257;  Varner  v.  Martin,  21  W.  Va.  534;  and 
unless  it  is  clear  that  it  is  not  possible  for 
the  use  to  be  public,  the  courts  cannot  inter- 
fere; Mills,  Em.  Dom.  §  10. 

In  an  early  case  it  was  said  that  in  general  the 
question  whether  a  particular  structure,  as  a  bridge, 
or  a  lock,  canal,  or  road,  is  for  the  public  use,  is  a 
question  for  the  legislature,  and  it  may  be  pre- 
sumed to  have  been  decided  by  them ;  Hazen  v. 
Essex  Co.,  12  Cush.  (Mass.)  475 ;  citing  Com.  v. 
Breed,  4  Pick.  (Mass.)  463;  but  in  a  later  case  when 
this  position  was  broadly  urged,  it  was  held  to  be 
obviously  untenable,  and  that,  where  the  power  was 
exercised,  it  necessarily  involved  an  inquiry  into 
the  rightful  authority  of  the  legislature  under  the 
organic  law,  and  that  the  legislature  had  no  power 
to  determine  finally  upon  the  extent  of  its  authority 
over  private  rights ;  Talbot  v.  Hudson,  16  Gray 
(Mass.)  417.  In  this  case  what  is  probably  the  true 
doctrine  was  stated,  that  it  is  the  duty  of  the  courts 
to  make  all  reasonable  presumptions  in  favor  of  the 
validity  of  the  legislative  act.  But  this  is  simply 
the  application  to  this  particular  subject  of  the  gen- 
eral presumption  of  the  constitutionality  of  legis- 
lative  acts. 

This  right  of  the  courts  to  determine  the 
question  of  public  use  was  maintained  in  In 
re  Niagara  Falls  &  W.  Ry.  Co.,  108  N.  Y.  375, 
1 5  N.  E.  429 ;  but  if  the  court  determine  the 
matter  in  question  to  be  a  public  use,  their 
power  is  exhausted  and  the  extent  to  which 
property  shall  be  taken  for  it  is  wholly  in 
the  legislative  discretion ;  Shoemaker  v.  U. 
S.,  147  U.  S.  282,  13  Sup.  Ct.  361,  37  L.  Ed. 
170.  Whether  the  necessity  exists  for  tak- 
ing the  property  is  a  legislative  question ; 
Lynch  v.  Forbes,  161  Mass.  302,  37  N.  E.  437, 
42  Am.   St.  Rep.  402. 

The  grant  of  the  right  is  a  determination 
on  the  part  of  the  legislature  that  the  object 
is  necessary;  Central  R.  Co.  of  New  Jersey 
v.  R.  Co.,  31  N.  J.  Eq.  475 ;  and  of  this  it  is 
the  judge ;  Tracy,  etc.,  v.  R.  Co.,  80  Ky.  259 ; 
In  re  Application  of  Jacobs,  98  N.  Y.  109,  50 
Am.  Rep.  636;  North  Missouri  R.  Co.  v. 
Gott,  25  Mo.  540 ;  and  parties  cannot  be 
heard  on  the  question  of  necessity ;  Holt  v. 
City  Council  of  Somerville,  127  Mass.  408. 
If  it  is  a  public  use  there  is  no  restraint  on 
legislative  discretion  and  the  judicial  func- 
tion is  gone ;  Mills,  Em.  Dom.  §  11.  If  the 
use  is  certainly  public  courts  will  not  inter- 
fere ;  only,  when  there  is  an  attempt  to  evade 
the  law  and  procure  condemnation  for  pri- 
vate uses  will  courts  declare  it  void ;  Mills, 
Em.  Dom.  §  11 ;  Baltimore  &  O.  R.  Co.  v.  R. 
Co.,  17  W.  Va.  812.  The  fact  that  a  rail- 
road has  located  its  line  across  certain  land, 
is  prima  facie  proof  that  it  is  necessary 
for  it  to  take  that  land  for  the  use  of  its 
road;  O'Hare  v.  R.  Co.,  139  111.  151,  28  N. 
E,    923.      Whether    the    land    is    reasonably 


required  is  a  question  of  fact  to  be  de- 
termined by  the  court  or  jury,  and  the 
burden  of  proof  is  on  the  plaintiff;  Spring 
Valley  Water  Works  v.  Drinkhouse,  92  Cal. 
528,  28  Pac.  681. 

It  has  been  held  that  when  under  the  con- 
stitution a  federal  question  arises,  the  su- 
preme court  will  determine  the  law  without 
reference  to  state  decisions ;  Ohio  Life  Ins. 
&  Trust  Co.  v.  Debolt,  16  How.  (U.  S.)  432, 
14  L.  Ed.  997.  See  Olcott  v.  Fond  du  Lac 
County,  16  Wall.  (U.  S.")  678,  21  L.  Ed.  382; 
People  v.  'Batchellor,  53  N.  Y.  128,  13  Am. 
Rep.  480.  But  in  determining  what  is  a  tak- 
ing of  property,  the  federal  courts  will  ac- 
cept the  definition  of  the  word  property  by 
the  state  court,  where  it  is  clearly  settled ; 
Pumpelly  v.  Canal  Co.,  13  Wall.  (U.  S.)  166, 
20  L.  Ed.  557;  D.  M.  Osborne  &  Co.  v.  R. 
Co.,  147  U.  S.  248,  13  Sup.  Ct.  299,  37  L.  Ed. 
155 ;  Barney  v.  Keokuk,  94  U.  S.  324,  24  L. 
Ed.  224;  Yates  v.  Milwaukee,  10  Wall.  (U. 
S.)  497,  19  L.  Ed.  9S4;  even  following  re- 
versals by  the  latter;  Leffingwell  v.  Warren, 
2  Black.  (U.  S.)  599,  17  L.  Ed.  261;  Green  v. 
Neal,  6  Pet.  (U.  S.)  291,  8  L.  Ed.  402;  Olcott 
v.  Fond  du  Lac  County,  16  Wall.  (U.  S.) 
678,  21  L.  Ed.  3S2. 

What  is  a  Public  Use.  There  has  not 
been  and  probably  never  will  be  a  satis- 
factory comprehensive  definition  of  the 
term  "public  use."  There  is  a  fundamen- 
tal difficulty  in  framing  one,  arising  from 
the  double  meaning  of  the  word  "use."  It 
may  be  either  employment  or  advantage,  and 
courts  have  divided  in  resting  their  efforts 
at  a  definition  upon  either  one  or  the  other 
of  these  terms.  The  subject  is  discussed  at 
length  and  the  cases  examined  in  Nichols, 
Em.  Dom.  §§  206-211,  and  the  conclusion  of 
this  author  is  that  neither  view  as  based  up- 
on the  words  mentioned,  is  entirely  satisfac- 
tory or  sufficiently  broad  to  justify  taking 
land  for  all  the  purposes  for  which  it  has 
been  permitted. 

Property  taken  for  public  use  need  not  be 
taken  by  the  public  as  a  body  into  its  direct 
possession,  but  for  public  usefulness,  utility, 
or  advantage,  or  purposes  productive  of  gen- 
eral benefit  or  great  advantage  to  the  com- 
munity ;  Olmstead  v.  Camp,  33  Conn.  532, 
89  Am.  Dec.  221.  It  is  not  necessary  that 
the  entire  community,  or  any  considerable 
portion  of  it,  should  participate  in  an  im- 
provement to  constitute  a  public  use;  Tal- 
bot v.  Hudson,  16  Gray  (Mass.)  417;  County 
Court  of  St.  Louis  County  v.  Griswold,  58 
Mo.  175 ;  it  may  be  limited  to  the  inhabitants 
of  a  small  locality;  but  the  benefit  must  be 
in  common,  not  to  particular  persons  or  es- 
tates; Gilmer  v.  Lime  Point,  18  Cal.  229. 
See  Mills,  Em.  Dom.  §  12.  If  a  considerable 
number  will  be  benefited  the  use  is  public ; 
Riche  v.  Water  Co.,  75  Me.  91 ;  Ross  v.  Da- 
vis, 97  Ind.  79 ;  as  a  school  available  for  use 
by  a  portion  of  the  community  taxed  to  pay 


EMINENT  DOMAIN 


1010 


EMINENT  DOMAIN 


for  the  property  taken ;  Williams  v.  School 
Dist,  33  Vt.  271. 

The  legislature  determines  the  number  of 
people  to  be  benefited  to  make  the  use  pub- 
lic;  Aldridge  v.  R.  Co.,  2  Slew.  &  P.  (Ala.) 
199,  23  Am.  Dec.  307 ;  but  the  incidental  ben- 
efit of  additional  facilities  for  business,  etc., 
will  not  make  use  public;  In  re  Eureka 
Basin  Warehouse  &  Mfg.  Co.  of  Long  Island, 
9fi  N.  Y.  42. 

It  was  formerly  considered  that  a  public 
use  must  be  for  material  needs,  and  not 
mere  aesthetic  gratification;  Nichols,  Em. 
Dom.  §  232,  citing  Bynk.  Jur.  Pub.  lib.  ii.  c. 
15;  Boston  &  R.  Mill  Dam  Corp.  v.  Newman. 
12  Pick.  (Mass.)  407,  480,  23  Am.  Dec.  0G2 ; 
Town  of  Woodstock  v.  Gallup,  28  Vt.  587; 
but  this  doctrine  has  been  practically  aban- 
doned ;  Nichols,  Em.  Dom.  §  232 ;  Attorney 
General  v.  Williams,  174  Mass.  470,  55  N.  E. 
77,  47  L.  R.  A.  314. 

It  has  been  judicially  decided  that  the  fol- 
lowing are  public  uses:  an  almshouse;  Hey- 
ward  v.  City  of  New  York,  7  N.  Y.  314;  a 
public  bath ;  Poillon  v.  City  of  Brooklyn,  101 
N.  Y.  132,  4  N.  E.  191;  a  schoolhouse;  Reed 
v.  Inhabitants  of  Acton,  117  Mass.  384 ;  Wil- 
liams v.  School  Dist,  33  Vt.  271;  Peckham 
v.  School  Dist.,  7  R.  I.  545 ;  Township  Board 
of  Education  v.  Hackmann,  4S  Mo.  243;  Long 
v.  Fuller,  08  Pa.  170 ;  a  market ;  In  re  Coop- 
er, 28  Hun  (N.  Y.)  515;  Henkel  v.  City  of 
Detroit,  49  Mich.  249,  13  N.  W.  011,  43  Am. 
Rep.  404;  telegraph  and  telephone  lines; 
Lockie  v.  Telegraph  Co.,  103  111.  401;  State 
v.  Telephone  Co.,  53  N.  J.  L.  341,  21  Atl.  400, 
11  L.  R.  A.  064;  Pierce  v.  Drew,  136  Mass. 
75,  49  Am.  Rep.  7 ;  New  Orleans,  M.  &  T.  R. 
Co.  v.  Telegraph  Co.,  53  Ala.  211;  Spring 
Valley  Water  Works  v.  Drinkhouse,  92  Cal. 
528,  28  Pac.  GS1 ;  water-works  for  a  town; 
Bailey  v.  Inhabitants  of  Woburn,  126  Mass. 
416;  Lake  Pleasanton  Water  Co.,  v.  Water 
Co.,  67  Cal.  659,  8  Pac.  501;  water  supply 
for  a  town ;  Burden  v.  Stein,  27  Ala.  104, 
02  Am.  Dec.  758;  Martin  v.  Gleason,  139 
Mass.  1S3,  29  N.  E.  0G4 ;  Cheyney  v.  Water 
Works  Co.,  55  N.  J.  L.  235,  20  Atl.  95 ;  Long 
Island  Water  Supply  Co.  v.  Brooklyn,  1GG  U. 
S.  GS5,  17  Sup.  Ct.  718,  41  L.  Ed.  11 05;  City 
of  Chicago  v.  Smith,  204  111.  350,  08  N.  E. 
395;  Denver  Power.  &  Irr.  Co.  v.  R.  Co.,  30 
Colo.  204,  69  Pac.  5GS,  GO  L.  R.  A.  383  (but 
not  where  the  creation  of  a  water  power  and 
plant  is  for  the  purpose  of  supplying  power 
for  private  enterprises;  Berrien  Springs  Wa- 
ter-Power Co.  v.  Circuit  Judge,  133  Mich.  is. 
94  N.  W.  379,  103  Am.  St.  Rep.  438;  Minne- 
sota Canal  &  Power  Co.  v.  Koochiching  Co., 
97  Minn.  429,  107  N.  W.  405,  5  L.  R.  A.  (N. 
S.i  638,  7  Ann.  Cas.  11S2;  Peifly  v.  Water 
Supply  Co.,  214  Pa.  340,  63  Atl.  751) ;  the  im- 
provement of  the  navigation  of  a  river;  Ha- 
zen  v.  Essex  County,  12  Cush.  (Mass.)  IT".; 
and  the  creation  of  a  wholly  artificial  sys- 
tem  of    navigation    by    canals;    id.;   Chesa- 


peake &  O.  Canal  Co.  v.  Key.  3  Cra.  C.  C. 
599,  Fed.  Cas.   No.  2,649;   Water  Works  Co. 
of   Indianapolis    v.    Burkhart,   41    link    364; 
In    re  Townsend,   3D    X.    Y.    171;    drai 
Willson  v.  Marsh  Co.,  2  Pet.    (U. 
L.  Ed.   412;   Cleveland,   C,    C.   &   St.    L.   Ry. 
Co.   v.   Drainage  Dist,  213  111.   83,    Tl!   X.   H. 
684;  sisson  v.  Board  of  Sup'rs  of  Buena  Vis- 
ta County,  128  la.  442,  104  X.   W. 
R.  A.  440;  contra,  Xickey  v.  Stearns  !; 
os  Co.,  126  Cal.  150,  58  Pac.  459;   !i 
Thomas,  119  Mass.  583;  Anderson  v.   I 
9S    Ind.    5S7;    sewers;    Ilildreth    v.    Ci 
Lowell,  11  Gray  (Mass.)  345;  wharves;  Cur- 
ran  v.  City  of  Louisville,  83  Ky.  628;  Kings- 
land  v.  City  of  New  York.  110  X.  Y.  569,  18 
N.  E.  435;   In  re  City  of  New   York.   135  X. 
Y.  253,  31  N.  E.  1043,  31  Am.   St.  Rep.  825; 
ferries;  Day  v.  Stetson,  8  Greenl.  (Me.)  365; 
Stark  v.  McGowen.  1  N.  ;*  McC.   (S.  C.)  387; 
irrigation;  Umatilla  Irr.  Co.  v.  Barnhart,  22 
Or.  389,  30  Pac.  37;  Lux  v.  Haggin,  09  Cal. 
255,  4  Pac.  919,  10  Pac.  074;  Fallbrook   Irr. 
Dist.  v.  Bradley.   164  U.   S.  112.  17  Sup.  Ct 
56,  41  L.  Ed.  36  rres  v.   Land  &  Irr. 

Co.,  1SS  U.  S.  545,  23  Sup.  Ct.  338,  -17  L.  Ed. 
588;  Clark  v.  Nash,  198  U.  S.  3G1,  25  Sup. 
Ct.  676,  49  L.  Ed.  10S5,  4  Ann.  Cas.  1171; 
Borden  v.  Irr.  Co.,  204  U.  S.  GG7,  27  Sup.  Ct. 
785,  51  L.  Ed.  G71 ;  Irrigation  Co.  v.  Klein, 
63  Kan.  484,  65  Pac.  684  :  Prescott  Irr.  Co.  v. 
Flathers,  20  Wash.  454,  55  Pac.  035;  levees; 
Missouri.  K.  &  T.  Ry.  Co.  v.  Ca  nil  tern,  G6 
Kan.  3G5,  71  Pac.  S09 ;  forts,  armories  or 
arsenals;  Kohl  v.  U.  S.,  91  U.  S.  367,  23  L. 
Ed.  449 ;  U.  S.  v.  Fox,  94  U.  S.  315,  24  L.  Ed. 
192;  Gilmer  v.  Lime  Point,  18  Cal.  220;  navy 
yards;  In  re  League  Island,  1  Brewst.  (Pa.) 
524 ;  military  camps ;  Morris  v.  Comptroller, 
54  N.  J.  L.  268,  23  Atl.  GG4;  turnpikes;  In  re 
Mount  Washington  Road  Co.,  35  N.  H.  134; 
State  v.  Maine,  27  Conn.  Oil,  71  Am.  Dec. 
89 ;  bridges ;  Young  v.  Buckingham,  5  Ohio 
485;  In  re  Towanda  Bridge  Co.,  91  Pa.  216; 
Young  v.  McKenzie,  3  Ga.  31 ;  Crosby  v.  Han- 
over, 36  N.  H.  404;  Palmer  v.  State.  Wright 
(Ohio)  3G4;  the  criterion  being,  whether  the 
public  may  use  by  right,  or  only  by  permis- 
sion, and  not  to  whom  the  tolls  are  paid; 
Arnold  v.  Bridge  Co.,  1  Duv.  (Ky.)  372; 
cemeteries;  Edgecumbe  v.  city  of  Burling- 
ton, 40  Vt  218;  Balch  v.  County  Com'rs,  103 
Mass.  100;  Edwards  v.  Cemetery  Ass'a,  20 
Conn.  4GG;  even  if  the  price  of  the  lots  there- 
in differ;  Evergreen  Cemetery  Ass'n  of  New 
Haven  v.  Beecher.  53  Conn  551,  5  Atl.  "."".; 
but  not  if  used  exclusively  for  members  of  a 
private  corporation;  In  re  Deansville  Cem- 
etery Ass'n.  CO  X.  Y.  569,  -■'■  Am.  Rep 
a  restaurant  at  a  summer  resorl  ;  Pi 
Park  &  C.  I.  R.  Co.  v.  Williamson.  Ml  X.  Y. 
552;  parks;  city  of  Lexington  v.  Assembly, 
114  Ky.  7S1,  71  S.  W.  943;  In  re  Mayor, 
of  City  of  Xew  York.  99  X.  Y.  569,  2  N.  E. 
642;  Kansas  City  v.  Ward.  134  .Mo.  172,  35 
S.   W.  GOO;   Holt  v.  City  Council,  127   Mass. 


EMINENT  DOMAIN 


1020 


EMINENT  DOMAIN 


408 ;  Gilman  v.  City  of  Milwaukee,  55  Wis. 
328,  13  N.  W.  2GG;  Cook  v.  South  Park 
Coru'rs,  61  111.  115;  Kerr  v.  South  Park,  117 
J.  S.  379,  6  Sup.  Ct.  SOI,  29  L.  Ed.  924 ;  Shoe- 
maker v.  U.  S.,  147  U.  S.  2S2,  13  Sup.  Ct.  361, 
37  L.  Ed.  170 ;  even  if  paid  for  by  a  county, 
though  beneficial  only  or  mainly  to  a  neigh- 
boring city;  St.  Louis  County  Court  v.  Gris- 
wold,  58  Mo.  175;  acquiring  private  proper- 
ty within  200  feet  of  city  parks  and  park- 
ways in  order  to  protect  the  same  by  resale 
in  fee  for  private  use ;  Penna.  Mut.  Life 
Ins.  Co.  v.  Philadelphia,  22  Pa.  Dist.  R.  195, 
per  Sulzberger,  J. ;  the  erection  of  a  memorial 
hall  or  monumental  statues,  arches,  and  the 
like,  the  publication  of  town  histories,  dec- 
orations on  public  buildings,  parks  designed 
to  provide  for  fresh  air  or  recreation,  edu- 
cate the  public  taste,  or  inspire  patriotism ; 
Kingman  v.  City  of  Brockton,  153  Mass.  255, 
26  N.  E.  998,  11  L.  R.  A.  123.  As  to  play- 
grounds, or  places  of  public  recreation,  the 
law  is  not  fully  settled ;  Nichols,  Em.  Doin. 
§  234 ;  it  was  held  not  valid  for  a  theatre ; 
Sug'ar  v.  City  of  Monroe,  108  La.  677,  32 
South.  961,  59  L.  R.  A.  723;  or  a  private 
right  of  fishing  in  an  island  pond  to  provide 
for  fishing  as  a  pastime;  Albright  v.  Park 
Commission,  71  N.  J.  L.  303,  57  Atl.  398,  69 
L.  R.  A.  768,  108  Am.  St.  Rep.  749,  2  Ann. 
Cas.  48. 

Restrictions  on  the  height  of  buildings, 
while  valid  under  the  police  power ;  Welch 
v.  Swasey,  193  Mass.  364,  79  N.  E.  745,  23 
L.  R.  A.  (N.  S.)  1160,  118  Am.  St  Rep.  523; 
have  been  also  upheld  to  prevent  disfiguring 
the  surroundings,  when  compensation  is 
made;  Attorney  General  v.  Williams,  174 
Mass.  476,  55  N.  E.  77,  47  L.  R.  A.  314,  af- 
firmed Williams  v.  Parker,  188  U.  S.  491, 
23  Sup.  Ct.  440,  47  L.  Ed.  559;  American 
Unitarian  Ass'n  v.  Com.,  193  Mass.  470,  79 
N.  E.  878 ;  but  not  otherwise ;  Nichols,  Em. 
Dom.  §  235,  giving  cases. 

A  highway  is  a  public  use;  Dronberger  v. 
Reed,  11  Ind.  420 ;  Haverhill  Bridge  Propri- 
etors v.  Commissioners,  103  Mass.  120,  4  Am. 
Rep.  518;  but  it  must  connect  with  another 
highway;  In  re  Niagara  Falls  &  W.  Ry.  Co., 
108  N.  Y.  375,  15  N.  E.  429 ;  Moore  v.  Rob- 
erts, 64  Wis.  538,  25  N.  W.  564;  Appeal  of 
Waddell,  84  Pa.  90 ;  though  at  one  end  only ; 
Schatz  v.  Pfeil,  56  Wis.  429,  14  N.  W.  628; 
Peckham  v.  Town  of  Lebanon,  39  Conn.  231  ; 
People  v.  Kingman,  24  N.  Y.  559.  It  may, 
however,  terminate  on  private  property ;  At- 
kinson v.  Bishop,  39  N.  J.  L.  226;  Sheaff  v. 
People,  87  111.  189,  29  Am.  Rep.  49 ;  Goodwin 
v.  Town  of  Wethersfield,  43  Conn.  437 ;  or  at 
a  river;  Moore  v.  Auge,  125  Ind.  562,  25  N. 
E.  S16 ;  or  at  a  church ;  West  Pikeland  Road, 
63  Pa.  471.  So  the  improvement  of  a  harbor 
is  a  public  use,  (but  not  the  extension  of 
harbor  lines  to  prevent  the  placing  of  build- 
ings on  either  side  of  a  bridge) ;  Farist  Steel 
Co.  v.  City  of  Bridgeport,  60  Conn.  278,  22 


Atl.  561,  13  L.  R.  A.  590;  and  the  reclama- 
tion of  flat  land;  1  Thayer,  Cas.  Const.  L. 
1025,  n.  citing  cases.  Gas  works ;  Bloomfield 
&  R.  Nat  Gaslight  Co.  v.  Richardson,  63 
Barb.  (N.  Y.)  437;  Appeal  of  Pittsburgh, 
123  Pa.  374,  16  Atl.  621 ;  Providence  Gas  Co. 
v.  Thurber,  2  R.  I.  15,  55  Am.  Dec.  621;  a 
state  military  encampment;  State  v.  Heppen- 
heimer,  54  N.  J.  L.  26S,  23  Atl.  664 ;  a  public 
urinal;  Badger  v.  City  of  Boston,  130  Mass. 
170,  are  public  uses.  So  has  been  held  the 
production  of  electric  power  or  light;  Story 
v.  Power  Co.,  160  Ind.  316,  76  N.  E.  1057; 
Minnesota  C.  &  P.  Co.  v.  Koochiching  Co., 
97  Minn.  429,  107  N.  W.  405,  5  L.  R.  A.  (N. 
S.)  638,  7  Ann.  Cas.  1182;  In  re  East  Canada 
Creek  Electric  L.  &  P.  Co.,  49  Misc.  565,  99 
N.  Y.  Supp.  109 ;  In  re  Niagara,  L.  &  O.  Pow- 
er Co.,  Ill  App.  Div.  686,  97  N.  Y.  Supp.  853 ; 
Rockingham  County  L.  &  P.  Co.  v.  Hobbs,  72 
N.  H.  531,  58  Atl.  46,  66  L.  R.  A.  581 ;  Jones 
v.  Electric  Co.,  125  Ga.  618,  54  S.  E.  85,  6 
L.  R.  A.  (N.  S.)  122,  5  Ann.  Cas.  526;  though 
some  courts  have  doubted  whether  the  trans- 
mitting of  water  power  into  electricity  was 
such  a  public  use  as  would  warrant  the  ex- 
ercise of  the  right  of  eminent  domain ;  State 
v.  Power  Co.,  39  Wash.  648,  82  Pac.  150,  2  L. 
R.  A.  (N.  S.)  842,  and  note,  4  Ann  Cas.  987; 
Minnesota  Canal  &  P.  Co.  v.  Koochiching  Co., 
97  Minn.  429,  107  N.  W.  405,  5  L.  R.  A.  (N. 
S.)  638,  7  Ann.  Cas.  1182.  A  department 
store  is  not  a  public  use ;  Townsend  v.  Ep- 
stein, 93  Md.  537,  49  Atl.  629,  52  L.  R.  A. 
409,  86  Am.  St.  Rep.  441 ;  and  see  Hatfield  v. 
Straus,  189  N.  Y.  208,  82  N.  E.  172. 

Other  instrumentalities  of  commerce  held 
to  be  public  uses  are,  pipe  lines  for  the  trans- 
portation of  oil  or  natural  gas ;  W.  Va.  Transp. 
Co.  v.  Coal  Co.,  5  W.  Va.  382;  City  of  La 
Harpe  v.  Power  Co.,  69  Kan.  97,  76  Pac.  448; 
City  of  Rushville  v.  Gas  Co.,  132  Ind.  575, 
2S  N.  E.  853,  15  L.  R.  A.  321;  Charleston 
Nat.  Gas  Co.  v.  Lowe,  52  W.  Va.  662,  44  S. 
E.  410 ;  dams  for  booms  used  in  logging ; 
Patterson  v.  Boom  Co.,  3  Dill  465,  Fed.  Cas. 
No.  10,829;  Lawler  v.  Baring  Boom  Co.,  56 
Me.  443;  Schoff  v.  Imp.  Co.,  57  N.  H.  110; 
Maffet  v.  Quine,  93  Fed.  347;  contra,  Brews- 
ter v.  Rogers  Co.,  169  N.  Y.  73,  62  N.  E.  164, 
58  L.  R.  A.  495;  Matthews  v.  Mfg.  Co.,  35 
Wash.  662,  77  Pac.  1046 ;  see  also  Mississippi 
&  R.  R.  Boom  Co.  v.  Patterson,  98  U.  S.  403, 
25  L.  Ed.  206 ;  Weaver  v.  Boom  Co.,  28  Minn. 
534,  11  N.  W.  114;  Appeal  of  Bennett's 
Branch  Imp.  Co.,  65  Pa.  242 ;  a  flume  for  the 
transportation  of  lumber;  Dallas  Lumbering 
Co.  v.  Urquhart,  16  Or.  67,  19  Pac.  78.  As 
to  the  condemnation  of  land  to  facilitate 
mining  operations  there;  is  a  conflict  of  deci- 
sions. In  some  of  the  states  the  courts  have 
refused  to  permit  it;  Amador  Queen  Min. 
Co.  v.  Dewitt,  73  Cal.  482,  15  Pac.  74;  Ap- 
peal of  Waddell,  84  Pa.  90;  Woodruff  v. 
Min.  Co.,  18  Fed.  753;  while  in  others 
they   have   considered   it  justifiable   on   the 


EMINENT  DOMAIN 


1021 


EMINEN'J    DOMAIN 


ground  of  public  utility;  Hand  Gold  Min. 
Co.  v.  Parker,  59  Ga.  419;  Overman  Silver 
Min.  Co.  v.  Corcoran,  15  Nev.  147;  and  tlie 
owner  of  a  mine  may  have  land  condemned 
for  a  railroad  for  the  transportation  of  the 
products  of  his  mine  to  the  nearest  thorough- 
fare by  rail  or  water,  provided  such  a  rail- 
way shall  be  free  to  all  who  wish  to  use  it; 
Hays  v.  Risher,  -"2  Pa.  169;  Hibernia  Un- 
derground R.  Co.  v.  De  Camp,  47  X.  J.  L. 
618,  i  Atl.  318,  54  Am.  Rep.  197;  New  Cen- 
tral Coal  Co.  v.  Coal  &  Iron  Co.,  37  Md.  537; 
Colorado  E.  R.  Co.  v.  R.  Co.,  41  Fed.  294; 
and  this  latter  provision  will  be  implied  from 
the  statute  authorizing  the  condemnation; 
Phillips  v.  Watson,  »;:;  la.  28,  18  X.  W.  G59 ; 
but  it  has  been  held  that  a  mine-owner  can- 
not condemn  land  solely  for  the  transporta- 
tion of  his  own  products;  Appeal  of  Stewart, 
56  Pa.  413;  Appeal  of  McCandless,  70  Pa. 
210;  Shod  v.  Coal  Co.,  IIS  111.  427,  10  N.  E. 
199,  5!)  Am.  Rep.  379;  State  v.  R.  Co.,  40 
Ohio  St.  504;  or  to  take  water  to  the  mines; 
Lorenz  v.  Jacob,  G3  Cal.  7:;. 

The  right  to  condemn  land  for  mill  sites 
has  been  frequently  granted;  Ilankins  v. 
Lnurence,  8  Blackf.  (Ind.)  2GG ;  Harding  v. 
Goo,! left,  3  Yerg.  (Tenn.)  41,  24  Am.  Dec. 
54G;  Boston  &  R.  Mill  Dam.  Corp.  v.  New- 
man, 12  Pick.  (Mass.)  4G7,  23  Am.  Dec.  622; 
Inhabitants  of  Andover  v.  Sutton.  12  Mete. 
(Mass.)  182;  Tyler  v.  Beacher,  44  Vt.  648, 
8  Am.  Rep.  398;  Ohnstead  v.  Camp,  33 
Conn.  532,  89  Am.  Dec.  221.  In  the  last  case 
it  was  urged  that  it  was  against  public  poli- 
cy to  allow  such  great  agencies  as  streams 
capable  of  propelling  machinery  to  go  to 
waste,  and  that  to  utilize  such  power,  even 
for  the  erection  of  private  mills,  promotes 
the  wealth  of  the  state  and  is  of  incidental 
benefit  to  the  people.  But  although  courts 
have  recognized  this  right  to  a  certain  ex- 
tent; Holyoke  Co.  v.  Lyman,  15  Wall.  (U. 
S.)  500,  21  L.  Ed.  133,  it  has  been  with  re- 
luctance and  it  will  not  now  probably  be 
sustained;  Mills,  Em.  Dom.  §  15;  it  has  been 
doubted;  Towers  v.  Bears.  12  Wis.  213,  78 
Am.  Dec.  733;  and  by  some  denied;  Jordan 
v.  Woodward,  40  Me.  317;  Hay  v.  Cohoes 
Co.,  3  Barb.  (X.  Y.)  42;  Sadler  v.  Langham, 
34  Ala.  311 ;  Ryerson  v.  Brown,  35  Mich.  333, 
24  Am.  Rep.  5G4 ;  in  which,  after  reviewing  the 
authorities,  Judge  Cooley  holds  the  question 
not  one  of  necessity  but  of  comparative  cost. 
A  general  statute,  delegating  to  individuals 
the  power  to  condemn  land  and  locate  mills, 
was  held  unconstitutional;  Loughbridge  v. 
Harris,  42  Ga.  500.  See  generally  as  to  the 
exercise  of  the  power  in  aid  of  private  en- 
terprises, including  mining,  mills,  etc.,  in- 
cluding an  historical  review  of  the  eases, 
Nichols,    Km.  Dom.  ch.  xliv,  §§  23G-2r>4. 

A  railroad  is  a  public  use;  Cherokee  Na- 
tion v.  Ry.  Co..  135  IT.  S.  (Ml,  K>  Sup.  Ct. 
965,  34  L.  Ed.  295;  Whitemans  Ex'x  v.  R. 
Co.,  2  Harring.  (Del.)  511.  :'•:*,  Am.  Dec.  411; 
Swan  v.  Williams,  2  Mich.  427;  In  re  Long 


Island  R.   Co.,   143  N.   Y.  07,   37  X.    E 
even   whore  used  for  freight  only;    State  v. 
R.  Co.,  47  X.  .1.  L.  43;  so  also  are  all  appur- 
tenances essential  to  the  reasonable,  coi 
ent,    and   proper  construction,    maintei 
and    operation    of    the    road,    such    as    yard- 
room;    Eldridge   v.    Smith,    84    Vt.   4S4  ;    and 
terminals;    Spofford    v.    B 
turnouts,  engine-houses,   depo:  turn- 

tables;  Chicago,    B.   &    Q.    K.    I     . 
17  HI.  1S\;  Giesy  v.  R.  Co.,  4  Ohi< 
and    repair    shops,    stock-yards ;     l 
Stock-Yards  Co.  v.   Keith,   L39   Q.  S.    !. 
Sup.  Ct.   469,   -".5  L.   Ed.   73;    Hannibal   &   St. 
J.   R.  Co.   v.   Muder,  19  Mo.   1G5;   pain! 
lumber,   and   timber   sheds;    Low    v.    It.   Co., 
IS  111.  324;   wharves;   In  re  Xew  York  Cent. 
&  II.  R.  »'o.,  77  X.  V.  24S;  a  place  of  d< 
for   waste  earth;    Lodge   v.    R.    Co..   8   Phila. 
(Pa.)   345;  but  not  shops  for  manufacturing 
new  rolling  stock;  Xew  York  &  II.  R.  Co.  v. 
Kip,  46  X.  V.  546,  7  An  35;  or  tene- 

ment houses  for  employes  ;  id. ;  State  v.  Com- 
missioners of  Mansfield,  Tp.,  23  X.  J.  L.  ."»!". 
57  Am.  Dec.  409;  as  to  an  ordinary  ware- 
bouse,  it  was  doubted;  Cumberland  Yal.  R. 
Co.  v.  McLanahan,  59  Pa.  23;  but  a  I 
ing  for  handling  freight  was  not  a  mere 
warehouse;  In  re  Xew  York  Cent.  &  II.  K.  K. 
Co.,  77  N.  Y.  248;  so  land  for  a  track  to  an 
elevator  could  be  taken;  Clarke  v.  Blackmar, 
47  X.  Y.  150;  but  not  for  a  railroad  con- 
structed solely  to  convey  passengers  to  see 
the  Niagara  River  and  whirlpool  for  revenue 
to  a  private  person;  In  re  Niagara  Falls  & 
Whirlpool  R.  Co.,  10S  X.  Y.  375,  15  X.  B 
See  Lewis,  Em.  Dom.  §  170;  Rand.  Em.  Dom. 
§  45. 

Having  obtained  its  franchises  and  right 
of  way  subject  to  the  right  of  the  state  to 
extend  public  streets  and  highways  across 
its  track,  a  railway  company  is  not  entitled 
to  compensation  for  interruption  of  its  busi- 
ness, or  increased  expense  or  risk  involved 
in  the  construction  of  such  highway:  Bos- 
ton &  M.  R.  Co.  v.  County  Com'rs,  79  Me. 
3SG,  10  Atl.  113;  Lake  Shore  &  M.  S.  Ry. 
Co.  v.  City  of  Chicago,  148  HI.  509,  :'.7  X.  E. 
88.  Legislative  authority  to  construct  streets 
and  highways  across  such  right  of  way  does 
not  violate  the  constitutional  prohibition 
against  taking  private  property  for  public 
use  without  compensation;  Albany  X.  l;.  Co. 
v.  BrownelL  24  X.  Y.  345;    People  v.  R.  Co., 

156  N.  Y.  570,  ."1   X.  B.  .".12:    Koch c  &   B. 

v.  P.  Co.  v.  City  of  Rochester,  163  N.  S 
57  X.  E.  1123.  But  the  company  is  entitled 
to  compensation  under  such  circumstances 
and  its  right  is  considered  property;  Hook 
v.  R.  Co.,  L33  Mo.  314.  34  S.  W.  549;  New 
York  &  L.  B.  K.  Co.  v.  Capner,  49  X.  .1.  I, 
555,  9  Atl.  7S1;  Kansas  Cent.  II.  I 
missioners  of  Jackson  County.  45  Kan.  71G, 
26  Pac.  394;  Illinois  Cent.  P.  Co.  v.  Highway 
Com'rs  of  Town  of  Mattoon.  163  111.  247.  43 
X.  E.  1100;  St.  Louis  S.  \Y.  Ry.  Co.  v.  Roy- 
all,  75  Ark.  530,  SS  S.  W.  555;    Louisville  & 


EMINENT  DOMAIN 


1022 


EMINENT  DOMAIN 


N.  R.  R.  Co.  v.  City  of  Louisville,  131  Ky. 
108,  114  S.  W.  743,  24  L.  R.  A.  (N.  S.)  1213. 

It  is  not  a  public  use  to  provide  for  fenc- 
ing a  large  tract  of  land  subject  to  floods 
which  carried  off  the  fences ;  Scuffletown 
Fence  Co.  v.  McAllister,  12  Bush  (Ky.)  312; 
or  to  acquire  swamp  land  and  build  docks, 
warehouses,  factories,  etc.;  In  re  Eureka 
Basin  Warehouse  &  Mfg.  Co.,  96  N.  Y.  42; 
or  to  settle  private  controversies  concerning 
title  by  transferring  the  land  of  one  to  an- 
other ;  Vanhorne  v.  Dorrance,  2  Dall.  (U.  S.) 
304,  1  L.  Ed.  391;  Lessee  of  Pickering  v.  Rut- 
ty, 1  S.  &  R.  (Pa.)  511.  The  latter  cases  arose 
under  legislation  to  settle  titles  and  adjust 
controversies  in  Pennsylvania  under  the  Con- 
necticut grant. 

It  is  settled  that  the  legislature  cannot  au- 
thorize the  taking  of  property  for  a  private 
use,  but  the  decisions  conflict  as  to  the  case 
of  private  ways,  or  roads  laid  out  under  stat- 
utes existing  in  many  states.  By  many 
courts  they  are  held  unconstitutional  as  being 
a  private  use ;  Taylor  v.  Porter,  4  Hill  (N.  Y.) 
140,  40  Am.  Dec.  274;  Bankhead  v.  Brown, 
25  la.  540;  Richards  v.  Wolf,  82  la.  358, 
47  N.  W.  1044,  31  Am.  St.  Rep.  501 ;  Wild  v. 
Deig,  43  Ind.  455,  13  Am.  Rep.  399;  Dickey 
v.  Tennison,  27  Mo.  373 ;  Crear  v.  Crossly,  40 
111.  175 ;  but  in  others  such  roads  are  held 
to  be  a  public  use,  and  the  word  private  is 
construed  as  a  word  of  classification  and  not 
technical  or  describing  the  use;  Sherman  v. 
Buick,  32  Cal.  241,  91  Am.  Dec.  577;  Mon- 
terey County  v.  Cushing,  83  Cal.  507,  23  Pac. 
700;  In  re  Hickman,  4  Harring.  (Del.)  5S0 ; 
Sadler  v.  Langham,  34  Ala.  311;  Shaver  v< 
Starrett,  4  Ohio  St.  494 ;  Denham  v.  County 
Com'rs  of  Bristol,  108  Mass.  202 ;  Appeal  of 
Waddell,  84  Pa.  90;  In  re  Killbuck  Private 
Road,  77  Pa.  39 ;  Perrine  v.  Farr,  22  N.  J.  L. 
356. 

The  doctrine  as  to  taking  under  this  pow- 
er for  the  assistance  of  private  enterprise  is 
thus  stated:  "The  power  of  eminent  domain 
cannot  be  constitutionally  employed  to  en- 
able individuals  to  cultivate  their  land  or 
carry  on  their  business  to  better  advantage 
even  if  the  prosperity  of  the  community  will 
be  enhanced  by  their  success;  but  when  the 
public  welfare  depends  upon  an  undertaking 
which  cannot  succeed  without  taking  rights* 
in  private  land,  the  courts  will  allow  such 
taking,  especially  if  it  is  sanctioned  by  usage 
contemporary  with  the  adoption  of  the  con- 
stitution." Nichols,  Em.  Dom.  274 ;  People 
v.  Township  Board  of  Salem,  20  Mich.  452,  4 
Am.  Rep.  400 ;  Citizens'  Sav.  &  Loan  Ass'n  v. 
Topeka,  20  Wall.  (U.  S.)  655,  22  L.  Ed.  455 ; 
Allen  v.  Inhabitants  of  Jay,  60  Me.  127,  11 
Am.  Rep.  185. 

"The  taking  by  a  state  of  the  private  prop- 
erty of  one  person  without  the  owner's  con- 
sent for  the  private  Use  of  another  is  not 
due  process  of  law  and  is  a  violation  of  the 
fourteenth  article  of  amendment  of  the  con- 
stitution of  the  United  States."    An  act  au- 


thorizing a  board  of  transportation  to  re- 
quire a  railroad  corporation  to  grant  to  pri- 
vate persons  a  location  on  the  right  of  way 
of  a  railroad  for  the  purpose'  of  erecting  a 
third  elevator  is  invalid ;  Missouri  Pac.  Ry. 
Co.  v.  Nebraska,  164  U.  S.  403,  17  Sup.  Ct. 
130,  41  L.  Ed.  4S9.  The  prohibition  is  against 
taking  without  due  process  of  law.  So  at  the 
same  term  the  court  say:  "There  is  no  spe- 
cific prohibition  of  the  Federal  Constitution 
which  acts  upon  the  states  with  regard  to 
their  taking  private  property  for  any  but  a 
public  use ;"  Fallbrook  Irr.  Dist.  v.  Bradley, 
164  U.  S.  112,  17  Sup.  Ct.  56,  41  L.  Ed.  369. 

What  is  a  public  use,  for  which  private 
property  may  be  taken  by  due  process  of  law, 
depends  upon  the  particular  facts  and  cir- 
cumstances connected  with  the  particular 
subject-matter.  See  notes  on  this  subject  in 
which  the  cases  are  collected;  91  Am.  Dec. 
5S5. 

What  may  be  taken.  Every  kind  of  prop- 
erty may  be  taken  under  this  power.  It  "is 
attribute  of  sovereignty,  and  whatever  exists 
in  any  form,  whether  tangible  or  intangible, 
may  be  subjected  to  the  exercise  of  its  pow- 
er, and  may  be  seized  and  appropriated  to 
public  uses  when  necessity  demands  it," 
Lewis,  Em.  Dom.  §  262;  Metropolitan  City 
Ry.  Co.  v.  Ry.  Co.,  87  111.  317,  324;  Alabama 
&  F.  R.  Co.  v.  Kenney,  39  Ala.  307;  New 
York,  H.  &  N.  R.  Co.  v.  R.  Co.,  36  Conn.  196 ; 
Water  Works  Co.  of  Indianapolis  v.  Burk- 
hart,  41  Ind.  364;  Eastern  R.  Co.  v.  Rail- 
road, 111  Mass.  125,  15  Am.  Rep.  13.  The 
general  rule  to  be  gathered  from  all  the  au- 
thorities, considered  together,  is,  that  a  leg- 
islative grant  of  power  to  condemn  property, 
expressed  in  general  terms,  confers  on  the 
grantee  power  to  take  all  kinds  of  property 
except  property  already  devoted  to  public 
use  and  necessary  for  the  exercise  of  such 
use ;  27  Cent.  L.  J.  207 ;  it  makes  no  differ- 
ence whether  corporeal  property,  as  land,  or 
incorporeal,  as  a  franchise,  is  to  be  affected ; 
Bloodgood  v.  R.  Co.,  14  Wend.  (N.  Y.)  51; 
Bonaparte  v.  R.  Co.,  1  Baldw.  C.  C.  205,  Fed. 
Cas.  No.  1,617;  U.  S.  v.  Ry.  Co.,  160  U.  S. 
668,  16  Sup.  Ct.  427,  40  L.  Ed.  576 ;  see  Lou- 
isville, C.  &  C.  R.  Co.  v.  Chappell,  Rice  (S.  C.) 
383;  Backus  v.  Lebanon,  11  N.  H.  19,  35 
Am.  Dec.  466;  Enfield  Toll  Bridge  Co.  v.  R. 
Co.,  17  Conn.  454,  44  Am.  Dec.  556;  Charles 
River  Bridge  v.  Warren  Bridge,  11  Pet.  (U. 
S.)  420,  9  L.  Ed.  773:  State  v.  Dawson,  3 
Hill  (S.  C.)  109;  Lexington  &  O.  R.  Co.  v. 
Applegate,  8  Dana  (Ky.)  289,  33  Am.  Dec. 
497;  Pocantico  Water  Works  Co.  v.  Bird,  130 
N.  Y.  249,  29  N.  E.  246;  Turner  v.  Nye,  154 
Mass.  579,  28  N.  E.  1048,  14  L.  R.  A.  487; 
Louisville,  N.  O.  &  T.  Ry.  Co.  v.  Telegraph 
Cable  Co.,  68  Miss.  806,  10  South.  74 ;  Spring 
Valley  Water  Works  Co.  v.  Drinkhouse,  92 
Cal.  528,  28 -Pac.  6S1. 

The  property  which  may  be  taken  includes: 
Estates  successive  in  point  of  time,  as  re- 
mainders and  reversions;    Alexander  v.   U. 


EMINENT  DOMAIN 


1023 


EMINENT  DOMAIN 


S.,  39  Ct.  CI.  3S3;  Charleston  &  W.  C.  Ry. 
Co.  v.  Reynolds,  69  S.  C.  4S1,  48  S.  E.  47G; 
life-tenancy;  Austin  v.  R.  Co.,  45  Vt.  215; 
Chicago,   K.  &  X.  Ry.  Co.  v.  Ellis,  52  Kan. 

41,  :;:;  Pac.  478;  tenancy  for  years;  Chicago 
&  E.  R.  Co.  v.  Dresel,  110  111.  89;  Kearney 
v.  Ry.  Co.,  129  N.  Y.  7G,  29  N.  E.  70;  or  at 
will;  Sheehan  v.  City  of  Fall  River,  187 
Mass.  356,  T.'J  X.  E.  544  ;  easements,  if  Impair- 
ed by  the  new  use;  State  v.  Superior  Court 
of  King  County,  2G  Wash.  278,  (JO  Pac.  3S5 ; 
even  a  prescriptive  right  to  pollute  a  stream ; 
Sprague  v.  Dorr,  1S5  Mass.  10,  69  N.  E.  344; 
profits  a  prendre;  Carville  v.  Com.,  192 
Mass.  570,  7S  N.  E.  735;  mortgages;  Bank 
of  Auburn  v.  Roberts,  44  N.  Y.  191';  Wooster 
v.  R.  Co.,  57  Wis.  311,  15  N.  W.  401 ;  South 
Park  Com'rs  v.  Todd,  112  111.  379;  contra, 
Whiting  v.  City  of  New  Haven,  45  Conn.  303  ; 
Goodrich  v.  Board,  47  Kan.  355,  27  Pac.  1000, 
IS  L.  R.  A.  113 ;  Farnsworth  v.  City  of  Bos- 
ton, 126  Mass.  1;  (but  not  general  liens; 
Watson  v.  R.  Co.,  47  N.  Y.  157,  or  ground 
rents;  Workman  v.  Mifflin,  30  Pa.  302;)  dow- 
er ;  French  v.  Lord,  69  Me.  537 ;  Tenable  v. 
Ry.  Co.,  112  Mo.  103,  20  S.  W.  493,  18  L.  R. 
A.  GS;  buildings  and  fixtures;  Williams  v. 
Com.,  16S  Mass.  364,  47  N.  E.  115  (but  only 
such  fixtures  as  cannot  be  removed  without 
injury  to  the  freehold  or  to  the  owner;  In  re 
City  of  New  York,  192  N.  Y.  295,  84  N.  E. 
1105,  IS  L.  R.  A.  [N.  S.]  423,  127  Am.  St. 
Rep.  903).  As  to  who  are  proper  parties  see 
infra  ;  and  as  to  what  is  property  within  the 
constitutional  use  of  the  word,  see  Nichols, 
Em.  Dom.  §  173  et  seq.  An  inchoate  right 
of  dower  is  defeated  by  condemnation  for  a 
public  use;  Moore  v.  Mayor,  etc.,  8  N.  Y. 
110,  59  Am.  Dec.  473;  Duncan  v.  City  of 
Torre  Haute,  85  Ind.  104;  Wheeler  v.  Kirt- 
land,  27  N.  J.  Eq.  534 ;  Chouteau  v.  Ry.  Co., 
122  Mo.  375,  22  S.  W.  45S,  30  S.  W.  299; 
French  v.  Lord,  69  Me.  537;  it  is  said  that 
the  dower  right  in  the  land  is  cut  off  but 
transferred  to  the  proceeds ;  Bonner  v.  Peter- 
son, 44  111.  253;  In  re  Central  Park  Exten- 
sion, 16  Abb.  Pr.  (N.  Y.)  56;  but  the  statu- 
tory purchase  of  land  by  a  railroad  corpora- 
tion for  depots,  etc.,  does  not  extinguish  the 
inchoate  right  of  dower  therein;  Nye  v.  R. 
Co.,  113  Mass.  277. 

The  power  has  been  held  to  exist :  To 
build  a  railroad  over  basins  maintained  by  a 
water  power  company  for  public  purposes, 
and  its  franchise  is  not  thereby  destroyed; 
Boston  Water  Power  Co.  v.  Boston  &  W.  R. 
Corp.,  23  Pick.  (Mass.)  360;  to  take  for  a 
public  road  the  property,  easement,  and 
franchise  of  a  bridge  company  ;  West  River 
Bridge  Co.  v.  Dix,  G  How.  (U.  S.)  507,  12  L. 
Ed.  535;  to  build  a  railroad  over  the  land  of 
a  gas  company  not  then  in  use  but  likely  to 
become  necessary;  New  York  C.  &  H.  R.  R. 
Co.  v.  Gas-Light  Co.,  63  N.  Y.  326;  over  the 
lands  and  right  of  way  of  a  canal  company  ; 
Tuokahoe  Canal  Co.  v.  R.  Co.,  11  Leigh  (Va.) 

42,  36  Am.  Dec.  374;  Board  of  Trustees  of 


Illinois  &  M.  Canal  v.  R.  Co.,  14  111.  314; 
over  lands  of  a  state  asylum  for  deaf  and 
dumb;  Indiana  Gent.  Ry.  Co.  v.  Si 
421  ;  over  a  turnpike  which  would  not  be  ma- 
terially injured;  White  River  Turnpike  Co. 
v.  R.  Co.,  21  Vt  590;  but  not  over  land 
necessary  for  the  railway,  owned  and  used 
by  the  state  for  an  institution  for  the  blind; 
St.  Louis,  J.  &  C.  R.  Co.  v.  Trustees,  43  ill. 
303.  In  a  proceeding  by  a  railroad  company 
to  condemn  for  terminal  warehouses  the 
land  of  a  steamboat  company,  the  test  wheth- 
er the  defendant  held  its  land  for  such  use 
as  to  exempt  it  from  condemnation  was  said 
to  be  not  what  the  defendant  "does  or  may 
choose  to  do,  but  what  under  the  law  it  must 
do,  and  whether  a  public  trust  is  impr 
upon  it.  It  does  not  so  hold  its  property  im- 
pressed with  a  trust  for  the  public  use  un- 
less its  charter  puts  that  character  upon  it 
and  so  that  it  cannot  he  shaken  off ;"  In  re 
New  York,  L.  &  W.  Ry.  Co.,  99  N.  Y.  12,  1 
N.  E.  27.  Any  property  belonging  to  a  rail- 
way not  in  actual  use  or  necessary  to  the 
proper  exercise  of  the  franchise  thereof  may 
be  taken  for  the  purpose  of  another  railroad 
under  a  general  power;  Baltimore  &  O.  R. 
Co.  v.  R.  Co.,  17  W.  Va.  812;  Chicago  &  N. 
W.  Ry.  Co.  v.  R.  Co.,  112  111.  589;  In  re 
Poughkeepsie  &  E.  R.  Co.,  63  Barb.  (N.  Y.j 
151;  Providence  &  W.  R.  R.  Co.  v.  R.  Co., 
13S  Mass.  277;  Pittsburgh  Junction  R.  Co. 
v.  R.  Co.,  146  Pa.  297,  23  Atl.  313;  but  not 
where  the  loss  of  the  property  to  be  taken 
is  necessary  to  the  exercise  of  the  franchise 
of  its  owner;  Central  City  Horse  Ry.  Co.  v. 
Ry.  Co.,  81  111.  523 ;  Oregon  Cascade  R.  Co. 
v.  Baily,  3  Or.  164.  The  same  general  prin- 
ciples are  applied  to  cases  where  a  municipal 
corporation  attempts  to  condemn  railroad 
property ;  if  the  property  is  not  neci 
to  the  new  use  and  the  latter  is  destructive 
of  the  old  one  it  is  not  permitted  to  be  tak- 
en; Baltimore  &  O.  C.  R.  Co.  v.  North,  103 
Ind.  4S6,  3  N.  E.  144,  23  A.  &  E.  R.  R.  Cas. 
36 ;  s.  c.  Baltimore  &  O.  &  C.  R.  Co.  v.  North. 
103  Ind.  486,  3  N.  E.  144;  Winona  &  St.  P. 
Ry.  Co.  v.  City  of  Watertown.  4  S.  D.  323, 
56  N.  W.  H»77;  otherwise,  if  it  will  leave  the 
franchise  unimpaired;  New  Jersey  Southern 
R.  Co.  v.  Com'rs,  39  X.  J.  L.  28.  A  market 
house  has  been  condemned  for  a  railway 
terminal  station,  reached  by  an  elevated  rail- 
road, and  its  approaches;  Twelfth-St.  Mar- 
ket Co.  v.  R.  Co.,  142  Pa.  580,  21  Atl.  902, 
9S9;  but  one  corporation  cannot  take  the 
franchise  of  another  which  is  in  use  u:iles< 
expressly  authorized  by  the  legislature,  and 
then  only  by  regular  condemnation,  and  can- 
not take  it  at  all,  if  this  will  materially  af- 
fect its  use;  Fidelity  Trust  &  Safety  Vault 
Co.  v.  Ry.  Co.,  63  Fed.  687.  So  a  strei  t  may 
be  taken:  Ottawa.  O.  O.  &  C.  G.  R.  Co.  v. 
Larson,  40  Kan.  301.  19  Pac.  661,  2  L.  R.  A 
59;  a  bridge:  39  Am.  &  Bng.  Corp.  C 
n. :  or  land  in  custody  of  the  law ;  14  Am.  L. 
Rev.  131. 


EMINENT  DOMAIN 


1024 


EMINENT  DOMAIN    / 


Where  the  power  in  a  charter  to  condemn 
lands  is  limited  so  as  to  exclude  land  or 
property  of  any  other  corporation  existing 
under  the  law  of  the  state,  this  restriction 
was  not  confined  to  lands  of  corporations  ex- 
isting at  the  passage  of  the  act,  but  applies 
to  those  thereafter  incorporated ;  and  anoth- 
er corporation  which  acquired  lands  after 
the  first  corporation  had  filed  a  survey  there- 
of according  to  the  requirements  of  the  laws, 
but  before  any  petition  for  the  appointment 
of  commissioners  had  been  presented,  could 
claim  exemption  from  condemnation  under 
the  limitations;  In  re  American  Transp.  & 
Nav.  Co.,  58  N.  J.  I/.  109,  32  Atl.  74. 

See  review  of  cases  on  this  general  sub- 
ject, of  the  taking  of  a  franchise;  27  Cent. 
L.  J.  207.  231 ;  and  as  to  corporate  property ; 
14  Am.  &  Eng.  R.  R.  Cas.  41,  n. 

Claims  of  citizens  against  a  foreign  power 
may  be  taken  by  the  national  government 
for  the  purpose  of  adjusting  its  relations 
with  such  power;  Meade  v.  U.  S.,  2  Ct.  of  CI. 
224 ;  and  a  claim  for  damages  to  land  by  rea- 
son of  an  unlawful  entry  may  be  taken  and 
adjusted  in  a  proceeding  to  take  the  land 
itself ;  Morris  Canal  &  Banking  Co.  v.  Town- 
send,  24  Barb.   (N.  Y.)  658. 

It  has  been  held  that  m6ney  cannot  be 
taken;  Field,  J.,  Burnett  v.  City  of  Sacra- 
mento, 12  Cal.  76,  73  Am.  Dec.  518;  contra, 
Cary  Library  v.  Bliss,  151  Mass.  364,  25  N. 
E.  92,  7  L.  R.  A.  765 ;  only  as  to  money  tak- 
en by  the  state  in  time  of  war;  Mitchell  v. 
Harmony,  13  How.  (U.  S.)  115,  14  L.  Ed. 
75;  Wellman  v.  Wickerman,  44  Mo.  484; 
and  without  any  such  limitation ;  Sharswood, 
J.,  in  Hammett  v.  Philadelphia,  65  Pa.  152, 
3  Am.  Rep.  615,  who  says  that  "the  public 
necessity  which  gives  rise  to  it  prevents  its 
being  restrained  by  any  limitations  as  to  ei- 
ther subject  or  occasion."  "Such,"  the  opin- 
ion continues,  "would  be  the  case  of  a  press- 
ing and  immediate  necessity,  as  in  the  event 
of  invasion  by  a  public  enemy,  or  some  great 
public  calamity,  as  famine  or  pestilence,  con- 
tribution could  be  levied  on  banks,  corpora- 
tions, or  individuals." 

Buildings  on  land  condemned  are  parts  of 
the  realty  and  pass  with  the  land,  and  the 
owner  must  be  paid  for  them  in  full,  and 
being  so  paid  cannot  recover  from  the  com- 
pany damages  for  the  removal  of  them ;  For- 
ney v.  R.  Co.,  23  Neb.  465,  36  N.  W.  806 ;  nor 
can  the  owner  remove  them ;  Finn  v.  Gas  & 
Water  Co.,  99  Pa.  640.  See,  generally,  as  to 
structures,  3  Am.  R.  R.  &  Corp.. Cas.  181,  n. 

An  act  for  the  extinguishment  of  irredeem- 
able ground  rents  was  held  not  to  be  an  ex- 
ercise of  the  right  of  eminent  domain  and 
therefore  unconstitutional ;  Appeal  of  Palair- 
et,  67  Pa.  479,  5  Am.  Rep.  450.  Generally  a 
city  may  not  condemn  property  beyond  its 
territorial  limits ;  Bank  of  Augusta  v.  Earle, 
13  Peters  (U.  S.)  519,  10  L.  Ed.  274;  Crosby 
v.  Hanover,  36  N.  H.  404;  or  a  corporation 


in  a  different  state  from  that  of  its  incorpo- 
ration ;  Saunders  v.  Imp.  Co.,  58  Fed.  133 ; 
but  there  are  exceptions  to  the  rule  as  in 
case  of  a  city  which  may  condemn  property 
beyond  its  orders  where  the  necessity  exists, 
as  for  a  park ;  Thompson  v.  Moran,  44  Mich. 
602,  7  N.  W.  180;  St.  Louis  County  Court  v. 
Griswold,  58  Mo.  175;  a  sewer;  City  of  Cold- 
water  v.  Tucker,  36  Mich.  474,  24  Am.  Rep. 
601;  Maywood  Co.  v.  Village  of  May  wood, 
140  111.  216,  29  N.  E.  704;  or  waterworks; 
Warner  v.  Town  of  Gunnison,  2  Colo.  App. 
430,  31  Pac.  238;  State  v.  City  of  Newark, 
54  N.  J.  L.  62,  23  Atl.  129 ;  but  in  such  case 
the  property  must  be  sufficiently  near  to  the 
municipality  to  be  serviceable  for  the  pur- 
pose for  which  it  is  condemned ;  In  re  City 
of  New  York,  99  N.  Y.  569,  2  N.  E.  642. 

Reversion  on  abandonment  and  change  of 
public  use.  Where  land  is  taken  for  one 
purpose,  it  reverts  to  the  owner  if  that  use 
is  abandoned ;  Miller  v.  R.  Co.,  43  Ind.  App. 
540,  88  N.  E.  102;  Harris  v.  Elliott,  10  Pet. 
(U.  S.)  25,  9  L.  Ed.  333;  Kimball  v.  City  of 
Kenosha,  4  Wis.  321 ;  Newton  v.  M'f'g's  Ry. 
Co.,  115  Fed.  781,  53  C.  C.  A.  599;  Chicago 
&  E.  I.  R.  Co.  v.  Clapp,  201  111.  418,  66  N. 
E.  223  (Under  constitutional  provision) ;  Can- 
ton Co.  of  Baltimore  v.  R.  Co.,  99  Md.  202, 
57  Atl.  637 ;  Neitzel  v.  Ry.  Co.,  65  Wash.  100, 
117  Pac.  864,  36  L.  R.  A.  (N.  S.)  522;  and 
he  can  restrain  the  unlawful  use  of  it;  Ap- 
peal of  Lance,  55  Pa.  16,  93  Am.  Dec.  722; 
since  the  nature  of  the  right  exercised  sub- 
jects the  statutes  conferring  it  to  a  strict 
construction ;  Washington  Cemetery  v.  R. 
Co.,  68  N.  Y.  591;  and  unless  the  statute 
clearly  authorizes  greater  latitude  the  pow- 
er to  take  is  only  for  the  public  use  indicat- 
ed ;  Attorney  General  v.  Aqueduct  Corp.,  133 
Mass.  361.  When  the  public  use  is  discontin- 
ued, the  land  owner  holds  his  title  unincum- 
bered as  before  condemnation;  McCombs  v. 
Stewart,  40  Ohio  St.  647 ;  Chambers  v.  Pow- 
er Co.,  100  Minn.  214,  110  N.  W.  1128;  Gross 
v.  Jones,  85  Neb.  77,  122  N.  W.  681,  32  L.  R. 
A.  (N.  S.)  47;  Lyford  v.  Laconia,  75  N.  H. 
220,  72  Atl.  1085,  22  L.  R.  A.  (N.  S.)  1062, 
139  Am.  St.  Rep.  680 ;  but  to  constitute  aban- 
donment there  must  be  intention  to  abandon 
as  well  as  actual  relinquishment ;  Canton  Co. 
of  Baltimore  v.  R.  Co.,  99  Md.  202,  57  Atl. 
637;  Corr  v.  Philadelphia,  212  Pa.  123,  61 
Atl.  808;  Chicago  &  E.  I.  R.  Co.  v.  Clapp,  201 
111.  418,  66  N.  E.  223 ;  and  the  expression  of 
an  intention  not  to  abandon  is  not  conclusive, 
but  is  to  be  considered  with  other  evidence 
of  action  and  conduct;  id.  It  has  been  held 
that  the  legislature  may  change  the  use  to 
another  of  the  same  nature;  Chase  v.  Mfg. 
Co.,  4  Cush.  (Mass.)  152;  Eldridge  v.  City  of 
Binghamton,  120  N.  Y.  309,  24  N.  E.  402; 
Malone  v.  City  of  Toledo,  28  Ohio  St.  643; 
but  it  is  probably  the  better  opinion  that 
compensation  must  be  given  for  another  or 
additional  burden;  State  v.  Laverack,  34  N. 


EMINENT  DOMAIN 


102? 


EMINENT  DOMAIN 


J.  L.  201;  Lahr  v.  Ry.  Co.,  104  N.  Y.  268, 
10  N.  E.  528;  Wagner  v.  Ry.  Co.,  104  N.  Y. 
6G5,  10  N.  E.  535;  Wearl  v.  R.  Co.,  64  Vt. 
52,  24  Atl.  363  ;  Lostutter  v.  City  of  Aurora, 
126  Ind.  436,  26  N.  E.  184,  12  L.  R.  A.  259; 
Town  of  Ilazlehurst  v.  Mayes,  84  M 
36  South.  33,  04  L.  R.  A.  805.  In  some  cases 
payment  for  the  damage  caused  by  the 
change  of  use  is  sufficient;  Lucas  v.  Power 
Co.,  02  Neb.  550,  138  N.  W.  761. 

Indirect  or  consequential  damages.  The 
principle  that  a  right  of  compensation  exists 
wherever  private  property  is  taken  lor  pub- 
lic use  does  not  extend  to  the  case  of  one 
whose  property  is  indirectly  damaged  by  the 
lawful  use  of  property  already  belonging  to 
the  public.  For  example,  it  was  held  that 
an  adjoining  or  abutting  owner  was  not  en- 
titled to  compensation  for  damages  result- 
ing from  the  change  of  a  grade  of  a  street; 
4  Term  794;  Proctor  v.  Stone,  158  Mass. 
564,  33  N.  E.  704;  Brooks  v.  Improvement 
Co.,  82  Me.  1,  19  Atl.  87,  7  L.  R.  A.  460,  17 
Am.  St.  Rep.  459;  Rauenstein  v.  R.  Co.,  136 
N.  Y.  528,  32  N.  E.  1047,  18  L.  R.  A.  768. 
Callender  v.  Marsh,  1  Pick.  (Mass.)  418, 
was  the  leading  American  case,  and  gave 
rise  to  a  statute  to  remedy  the  wrong 
suggested  by  it.  In  Pennsylvania  the  doc- 
trine of  these  cases  was  followed  in  a  case 
in  which  Gibson,  C.  J.,  expressed  regret 
that  such  injustice  was  remediless;  O'Con- 
nor v.  Pittsburgh,  18  Pa.  187  (a  case  refer- 
red to  by  the  same  court  as  of  a  class  in- 
tended to  be  remedied  by  the  constitution  of 
1874;  O'Brien  v.  Philadelphia,  150  Pa.  589, 
24  Atl.  1047,  30  Am.  St.  Rep.  832).  These 
and  the  other  authorities  were  reviewed  by 
the  United  States  Supreme  Court,  and  the 
same  conclusion  reached  as  being  "well  set- 
tled both  in  England  and  in  this  country;" 
Smith  v.  Corporation  of  Washington,  20 
How.  (U.  S.)  135,  15  L.  Ed.  858.  Of  the  law 
at  this  period,  it  was  said  that  the  limitation 
of  the  term  "taking"  to  an  actual  physical 
appropriation  or  divesting  of  title  was  "far 
too  narrow  to  answer  the  purpose  of  jus- 
tice;" Sedg.  Const.  L.  (2d  ed.)  456.  See  1 
Thayer,  Cas.  Const.  L.  1053,  1055;  2  Am.  R. 
&  Corp.  Cas.  435,  n.  The  law  on  this  specific 
subject  of  change  of  grades  became  firmly 
settled,  except  as  changed  by  constitutional 
or  statutory  enactments,  but  on  the  general 
subject  of  what  constitutes  a  "taking"  of 
property,  it  has  since  undergone  very  great 
changes,  and  the  narrow  rule  of  physical  ap- 
propriation has  ceased  to  afford  a  criterion 
of  decision.  An  illustration  of  the  tendency 
to  treat  this  question  liberally,  rather  than 
technically,  is  a  decision  that  it  is  a  "tak- 
ing" of  property  to  prohibit  an  owner  of 
land  on  a  boulevard  from  building,  beyond 
a  certain  limit,  on  the  front  part  of  the  lot; 
City  of  St.  Louis  v.  Hill,  116  Mo.  527,  22  8. 
W.  861,  21  L.  R.  A.  226;  City  of  Philadelphia 
v.  Linnard,  97  Pa.  242;  In  re  Chestnut 
Street,  118  Pa.  593,  12  Atl.  585.  See  Vander- 
Bouv.— 65 


lip  v.  Grand  Rapids,  73  Mich.  522,  41  X.  W. 
677,  3  L.  R.  A.  247,  16  Am.  St.  Rep.  597; 
Memphis  &  C.  R.  Co.  v.  R.  C  u  571, 

11  South.  642,  18  L.   R.   A.    ll  older 

cases   rested  upon  a  narrow,  the  later  ones 
upon  a  liberal,  meaning  of  the  word  "prop- 
erty" in  the  constitutions.  ,  Of  the  latfo 
ton  v.  Railroad  Co.,  51   N.  11.  504,  12  Am.  Rep. 
147,  is  the  leading  case  on  the  of  the 

right  to  compensation  where  property  Is  in- 
jured and  not  physically  taken.  Plaintiff's 
land  was  overflowed  during  a  freshet  as  the 
result  of  the  construction  of  the  defendant's 
railroad.  Damages  for  the  land  actually  tak- 
en for  the  railroad  had  been  paid  as  the  result 
of  condemnation  proceedings.  It  was  held 
that  the  right  to  use  the  land  undisturbed 
really  constituted  the  property  in  it,  rather 
than  the  physical  possession  of  the  land  itself. 
and  that  even  if  the  land  itself  were  the 
"property,"  a  physical  interference  with  it 
which  abridged  the  right  to  use  it  was  in  fact 
a  taking  of  the  owner's  property  to  that  ex- 
tent. The  opinion  of  Smith,  J.,  in  this  case 
is  said  to  have  contributed  more  than  any 
other  towards  the  change  in  the  law  extend- 
ing the  effect  of  the  word  taking;  Lewis,  Km. 
Dom.  §  58.  See  also  Thompson  v.  Imp.  Co., 
54  N.  H.  545;  City  of  Janesville  v.  Carpen- 
ter, 77  Wis.  288,  46  N.  W.  128,  8  L.  R.  A. 
808,  20  Am.  St.  Rep.  123;  Weaver  v.  Boom 
Co.,  28  Minn.  534,  11  N.  W.  114;  14  Ch.  Div. 
58;  Northern  Transp.  Co.  v.  Chicago,  99  I". 
S.  635,  25  L.  Ed.  336;  Earl,  J.,  dissenting  in 
Story  v.  R.  R.  Co..  90  N.  Y.  122,  43  Am.  Rep. 
146.  It  is  now  quite  settled  that  the  flowing 
of  lands,  against  the  owner's  consent  and 
without  compensation,  is  a  taking;  Eaton  v. 
R.  R.,  51  N.  H.  504,  12  Am.  Rep.  147;  Grand 
Rapids  Booming  Co.  v.  Jarvis,  30  Mich.  321. 
See  also,  Nevins  v.  City  of  Peoria,  41  111. 
502,  89  Am.  Dec.  392;  Pettigrew  v.  Village 
of  Evansville.  25  Wis.  223,  3  Am.  Rep.  50; 
Pumpelly  v.  Canal  Co.,  13  Wall.  (IT.  S.)  166, 
20  L.  Ed.  557.  In  the  latter  case.  Miller.  J.. 
after  referring  to  the  decisions  that  there 
is  no  remedy  for  a  consequential  injury  from 
the  improvements  of  roads,  streets,  rivers, 
etc.,  said:  "But  we  are  of  opinion  that  the 
decisions  referred  to  have  gone  to  the  utter- 
most limit  of  sound  judicial  const ruetion  in 
favor  of  this  principle,  and.  in  some  cases, 
beyond  it,  and  that  it  remains  true  that 
where  real  estate  is  actually  invaded  by  su- 
perinduced additions  of  water,  earth,  sand 
or  other  material,  or  by  having  any  artificial 
structure  placed  on  it,  so  as  to  effectually  de- 
stroy or  impair  its  usefulness,  it  is  a  taking, 
within  the  meaning  of  the  constitution,  and 
that  this  proposition  is  not  in  conflict  with 
the  weight  of  judicial  authority  in  this  coun- 
try, and  certainly  not  with  sound  principle. 
Beyond  (his  we  do  not  go,  and  this  case  calls 
us  to  go  no  further."  This  was  afterwards 
said  by  the  court  to  be  a  case  of  "physical 
invasion  of  the  real  estate  of  the  private 
owner,  a  practical  ouster  of  his  possession" ; 


EMINENT  DOMAIN 


1026 


EMINENT  DOMAIN 


Mississippi  &  R.  River  Boom  Co.  v.  Patter- 
son, 98  U.  S.  403,  25  L.  Ed.  206. 

The  danger  to  which  the  occupants  of  the 
remaining  land  and  the  stock  thereon  will 
be  exposed  by  the  operation  of  a  railway  up- 
on the  land  taken  cannot  be  considered  in 
assessing  damages;  Indianapolis  Traction 
Co.  v.  Larrabee,  168  Ind.  237,  80  N.  E.  413, 
10  L.  R.  A.  (N.  S.)  1003,  and  note,  11  Ann. 
Cas.  695,  on  the  general  question  of  the  dan- 
ger to  the  owner  of  the  property,  or  his  fam- 
ily, or  his  live  stock,  as  an  element  of  dam- 
ages. The  conclusion  is  that  the  cases  'dis- 
agree too  much  to  form  a  settled  rule  and 
they  are  collected,  dealing  with  the  subject 
from  all  points  of  view. 

The  interference  with  the  rights  of  abut- 
ting owners  by  building  an  elevated  railroad 
on   a  street   was  held   a   taking  of   private 
property   for  public  use   without  compensa- 
tion, to  restrain  which  the  plaintiff  was  en- 
titled to  an  injunction;   Story  v.  R.  Co.,  90 
N.  Y.  122,  43  Am.  Rep.  146.     This  case  was 
decided    by    four  judges   against   three   dis- 
senting,   whose    views    were    expressed    by 
Earl,    J.,   in  an   opinion   much   referred   to, 
contending  that  it  was  a  use  of  the  street 
properly  incident  to  its  purpose  as  a  public 
highway.     An  effort  to  secure  a  re-examina- 
tion of  the  doctrine  of  this  case  resulted  in 
its  affirmance;   Lahr  v.  Ry.  Co.,   104  N.  Y. 
268,  10  N.  E.  528.     In  a  subsequent  case  the 
New  York  court  of  appeals  stated  the  law 
of  that  state  to  be  that,  although  the  abut- 
ting owner  might  have  an  injunction,  and  in 
the  same  proceeding  recover  full  compensa- 
tion for  the  permanent  injury,  he  could  not, 
in  an  action  at  law,  recover  permanent  dam- 
ages measured  by   the  diminution  in   value 
of   the   property,   but   only    such   temporary 
damages  as  he  had  sustained  at  the  time  of 
commencing  the  action;  Pond  v.  Ry.  Co.,  112 
N.  Y.  190,  19  N.  E.  487,  8  Am.  St.  Rep.  734. 
In  a  leading  case  the  construction  of  an 
ordinary  commercial  railroad  along  a  street 
in  front  of  a  lot  without  impairing  ingress 
and   egress,   but  resulting  in   the   usual  in- 
juries to  the  lot  from   steam,  smoke,   dust, 
smells,  interference  with  light  and  air,  jar- 
ring the  ground,  etc.,  was  held  to  be  an  ap- 
propriation of  the  street  for  what  was  not 
a  proper  street  use,  for  which  damages  were 
recoverable,  but  limited  to  the  injury  result- 
ing from  the  operation  of  the  road  in  front 
of  the  lot,  and  not  including  any  accruing 
from    operating    it    on    other   parts    of    the 
street ;  Adams  v.  R.  Co.,  39  Minn.  286,  39  N. 
\v.  629,  1  L.  R.  A.  493,  12  Am.  St.  Rep.  644. 
The  Maryland  court  of  appeals,  in  review- 
ing the  decisions  on  the  subject,  and  partic- 
ularly the  New  York  cases,  mentions  as  the 
only  other  cases  holding  that  opinion,  Craw- 
ford v.  Village  of  Delaware,  7  Ohio  St.  460; 
Adams  v.  R.  Co.,  39  Minn.  286,  39  N.  W.  629, 
1  L.  R.  A.  493,  12  Am.  St.  Rep.  644;  Theo- 
bold  v.  Ry.  Co.,  66  Miss.  279,  6  South.  230, 
4  L.  R.  A.  735,  14  Am.  St.  Rep.  564 ;  and  con- 


siders that  its  own  decision  in  Mayor,  etc., 
of  Cumberland  v.  Willison,  50  Md.  148,  33 
Am.  Rep.  304,  and  O'Brien  v.  R.  Co.,  74  Md. 
363,  22  Atl.  141,  13  L.  R.  A.  126,  should  be 
adhered  to  as  being  in  accord  with  the  decid- 
ed weight  of  judicial  opinion.  The  conclu- 
sion is  thus  stated  :  "The  New  York  doctrine 
involves  this  inextricable  dilemma,  viz.,  if 
the  grading  of  a  street  by  a  municipal  cor- 
poration cuts  off  all  access  to  a  person's 
house,  albeit  his  property  is  thereby  destroy- 
ed and  rendered  valueless,  it  is  not  taken  in 
the  constitutional  sense;  but  if  a  railroad 
company  in  lawfully  constructing  its  road 
does  precisely  the  same  thing  that  the  city 
did  in  grading  a  street,  then  the  abutter's 
property  is  taken,  though  not  physically  en- 
tered upon  at  all.  The  structure  is  there- 
fore a  lawful  one.  But  it  does  not  destroy 
the  street  as  a  street,  though  it  may  cause 
the  plaintiff  greater  inconvenience  in  gain- 
ing access  to  his  lots  than  he  encountered 
before  it  was  built.  But  this  and  other  in- 
juries complained  of  are  purely  incidental 
and  consequential,  though  the  appellant,  un- 
der the  statutes  of  Maryland,  is  not  without 
a  remedy  therefor;  Garrett  v.  Ry.  Co.,  79 
Md.  277,  29  Atl.  830,  24  L.  R.  A.  396. 

The  question  what  constitutes  a  taking, 
under  the  older  constitutional  provisions, 
was  much  considered  with  respect  to  the 
use  of  streets  and  highways  by  many  other 
modern  appliances,  such  as  gas  and  water 
pipes,  steam  and  electric  railroads,  and  poles 
for  telegraph,  telephone,  and  electric  light 
wires.  In  this  class  of  cases,  of  which  the 
elevated  railroad  cases  have  been  used  as 
an  illustration,  the  question  has  turned  on 
the  consideration  whether  the  proposed  use 
was  a  legitimate  incidental  use  of  the  street 
as  such,  and  the  tendency  of  the  cases  is  in 
favor  of  a  very  liberal  construction  of  the 
rights  of  the  public,  at  least  in  streets  of 
cities.  In  some  states  a  distinction  is  made 
between  city  streets  and  country  roads,  and 
the  public  easement  in  the  latter  is  much 
more  restricted,  and  the  rights  of  abutting 
owners  to  damages  consequently  more  ex- 
tended; Bloomfield  &  Rochester  Nat.  Gas 
Light  Co.  v.  Calkins,  62  N.  Y.  386 ;  Appeal  of 
Sterling,  111  Pa.  35,  2  Atl.  105,  56  Am.  Rep. 
246;  Pennsylvania  R.  Co.  v.  Railway,  167 
Pa.  62,  31  Atl.  468,  27  D.  R.  A.  766,  46  Am. 
St.  Rep.  659;  Kincaid  v.  Gas  Co.,  124  Ind. 
577,  24  N.  E.  1066,  8  L.  R.  A.  602,  19  Am. 
St.  Rep.  113.  See  Impairing  the  Obligation 
of  Contracts. 

In  a  general  view  of  the  subject  nothing 
more  is  practicable  than  a  mere  indication 
or  illustration  of  the  tendency  of  the  deci- 
sions which  must  be  resorted  to  and  exam- 
ined for  application  to  a  special  case.  City 
streets  are  legitimately  used,  from  necessity, 
for  sewers  and  drains ;  Cone  v.  City  of  Hart- 
ford, 28  Conn.  363;  Leeds  v.  City  of  Rich- 
mond, 102  Ind.  372,  1  N.  E.  711;  Traphagen 
v.  Mayor,  etc.,  of  Jersey  City,  29  N.  J.  Eq. 


EMTXEXT  DOMAIN 


1027 


EMINENT  DOMAIN 


206;  White  v.  Corporation  of  Yazoo  City,  27 
Miss.  357;  water  pipes;  Crooke  v.  Water- 
Works  Co.,  29  Huii  (N.  Y.)  245;  gas  pipes, 
as  a  practical  necessity,  in  cities,  are  not 
questioned  but  indirectly  sanctioned;  Story 
v.  It.  Co.,  90  N.  Y.  161,  43  Am.  Rep.  146; 
Tompkins  v.  Hodgson,  2  Hun  (N.  Y.)  146. 
See  City  of  Boston  v.  Richardson,  13  Allen 
(Mass.)  146,  160.  As  to  steam  railroads, 
from  a  great  conflict  of  decisions  (difficult 
if  not  impossible  to  reconcile),  it  would  seem 
to  be  the  best  opinion  that  it  is  not  a  legiti- 
mate use  of  the  street;  see  Rand.  Em.  Dom. 
§  405;  Lewis,  Em.  Dom.  §  111,  with  notes 
citing  the  cases  at  large;  a  horse  railway  is 
almost  universally  held  to  be  a  proper  use 
of  streets;  Rand.  Em.  Dom.  §  402;  Lewis, 
Em.  Dom.  §  124;  the  only  substantial  dissent 
being  in  New  York  ;  Craig  v.  R.  Co.,  39  N. 
Y.  404;  unless  the  fee  is  in  the  public;  Kel- 
linger  v.  R.  Co.,  50  N.  Y.  206.  See  Cincin- 
nati &  Spring  Grove  Ave.  St.  Ry.  Co.  v.  Vil- 
lage of  Cumminsville,  14  Ohio  St.  523;  Ho- 
bart  v.  R.  Co.,  27  Wis.  194,  9  Am.  Rep.  461. 
With  respect  to  electric  railways  in  cities, 
the  doctrine  of  "the  right  of  the  public  to  use 
the  streets  by  means  of  street  cars"  was  said 
to  be  "now  so  thoroughly  settled  as  to  be  no 
longer  open  to  debate,"  and  it  was  extended 
to  the  poles  and  wires  of  the  new  system ; 
Halsey  v.  Ry.  Co.,  47  N.  J.  Eq.  380,  20  Atl. 
859;  and  see  Detroit  City  Ry.  v.  Mills,  85 
Mich.  634,  48  N.  W.  1007;  Koch  v.  Ry.  Co., 
'<5  Md.  222,  23  Atl.  463,  15  L.  R.  A.  377;  Far- 
rell  v.  R.  Co.,  61  Conn.  127,  23  Atl.  757 ;  Raf- 
ferty  v.  Traction  Co.,  147  Pa.  579,  23  Atl. 
884,  30  Am.  St.  Rep.  763;  but  not  along  a 
country  road;  Pennsylvania  R.  Co.  v.  Kail- 
way,  167  Pa.  62,  31  Atl.  468,  27  L.  R.  A.  766, 
46  Am.  St.  Rep.  659.  See  Rand.  Em.  Dom. 
§  403.  Electric  light  poles  are  usually  treat- 
ed as  proper,  on  the  same  basis  as  the  older 
lamp  posts;  Johnson  v.  Electric  Co.,  54  Hun 
469,  7  N.  Y.  Supp.  716;  but  not  telegraph 
and  telephone  poles,  according  to  the  weight 
of  authority ;  Pacific  Postal  Tel.  Cable  Co. 
v.  Irvine,  49  Fed.  113 ;  Western  Union  Tel. 
Co.  v.  Williams,  86  Va.  696,  11  S.  E.  106, 
8  L.  R.  A.  429,  19  Am.  St.  Rep.  908;  Taggart 
v.  R.  Co.,  16  R.  I.  668,  19  Atl.  326,  7  L.  R.  A. 
205;  St.  Louis  v.  Tel.  Co.,  148  U.  S.  92,  13 
Sup.  Ct.  485,  37  L.  Ed.  3S0;  though  in  some 
cases  it  is  held  otherwise,  and  of  these  the 
leading  case  considered  the  subject  within 
the  principle  of  Cullender  v.  Marsh,  1  Pick. 
(Mass.)  418;  the  opinion  of  the  court  and 
the  dissenting  one  of  two  judges  present  the 
two  views  of  the  question  very  fully ;  Pierce 
v."  Drew,  136  Mass.  75,  49  Am.  Rep.  7.  See 
also  Julia  Bldg.  Ass'n  v.  Tel.  Co.,  88  Mo.  258, 
57  Am.  Rep.  398. 

In  the  cases  relating  to  the  use  of  streets  and 
highways  a  great  diversity  of  decision  is  occasioned 
by  the  distinctions  drawn  between  the  rights  of  an 
abutting  owner  who  has  the  fee  and  one  owning 
merely  an  easement  of  access  over  a  street  of  which 
the  soil  belongs  to  the  public.  The  question  is  fur- 
ther  complicated   by   the  varied  application   of  the 


doctrine  that  an   owner  whose  land  was  taken   for 
a  street  or  highway   is   presumed   to  anticipate  the 
future  uses  to  which  it  may   be  put  both  over  and 
under  the  surface.     The  confusion  of  the  di 
is  well  stated  by  a  writer  on   the  subject:    "Laying 
aside    constitutional    and    statutory    declarations   of 
liability   for  consequential  injuries  we  And   the   fol- 
lowing   anticipations    imputed    to    one    whose    land 
is    affected   by    a   street    easement     In    every    state 
except  Ohio  he  anticipates  that  he  may   be  o 
to  enter  his  house  by  a  second-story  window 
the  grade  is  raised,  or  by  a  ladder  when   the  grade 
is   lowered.     In   New  York   he   does  not  foresee  any 
improved  method  of  transportation   from  the 
car  to  the  electric  motor;    but   In   : 
anticipates    all    methods.     The    Ma  j    man 

seems   to   be   the   only  one   who   has   clearly 
patcd    the    telegraph    and    telephone.      Judged     by 
results  there  is  no  working  rule  of  general  applica- 
tion deducible  from  a  presumed  anticipation  of  fu- 
ture use."     Rand.  Em.   Dom.  §  414. 

In  some  states  there  are  constitutional  pro- 
visions covering  tins  subject,  sixteen  of  them 
requiring  compensation  when  property  is 
damaged  by  such  proceedings  generally,  and 
three  others  when  the  delegated  power  of 
eminent  domain  is  exercised  by  corporations. 
Under  these  provisions  compensation  is  re- 
quired for  property  "damaged"  as  well  as 
"taken,"  and  the  former  word  is  held  to  in- 
clude all  actual  damages  resulting  from  the 
exercise  of  the  right  of  eminent  domain 
which  diminish  the  market  value  of  private 
property;  City  of  Omaha  v.  Kramer.  25  Neb. 
4S9,  41  N.  W.  295,  13  Am.  St.  Rep.  504; 
Reardon  v.  San  Francisco,  66  Cal.  492,  6  Pac. 
317,  56  Am.  Rep.  109;  City  of  Atlanta  v. 
Green,  67  Ga.  3S6 ;  Chicago  &  W.  I.  R.  Co.  v. 
Ayres,  100  111.  511;  Dot  Springs  R.  Co.  v. 
Williamson,  45  Ark.  429. 

The  treatment  by  the  courts  of  the  subject 
of  consequential  damages  is  illustrated  by 
the  course  of  decisions  under  two  constitu- 
tions of  Illinois,  by  the  supreme  court  of  that 
state,  which  is  very  elaborately  reviewed  in 
a  judgment  of  the  supreme  court  of  the  Unit- 
ed States.  The  constitution  of  1S48  prohibit- 
ed the  taking  or  application  to  public  use  of 
property  without  just  compensation;  and  the 
rule  adopted  by  the  courts  was  that  any 
physical  injury  to  private  property,  by  the 
erection,  etc.,  of  a  public  improvement,  in  or 
along  a  public  highway,  whereby  its  use  was 
materially  interrupted,  was  to  be  regarded 
as  a  taking,  within  the  meaning  of  the  con- 
stitution. The  constitution  of  1S70  provided 
that  private  property  should  not  be  tak<  it  or 
damaged  without  just  compensation,  and  up- 
on this  it  was  held  that  the  property  owner 
was  protected  against  any  substantial  dam- 
age, though  consequential,  and  that  it  did 
not  require  a  trespass  or  actual  physical  in- 
vasion; Riguey  v.  City  of  Chicago,  102  ill. 
64;  City  of  Chicago  v.  Bldg.  Ass"n,  102  ill. 
379,  40  Am.  Rep.  598;  Chicago  v.  Taylor,  125 
U.  S.  161,  8  Sup.  Ct.  820,  31  L.  Ed.  638.  In 
the  judgment  last  cited  Harlan,  J.,  said: 
"We  concur  in  that  construction"  and  "we 
regard  that  case  (Rigney  v.  City  of  Chicago, 
102  111.  64)   as  conclusive  of  this  question." 


EMINENT  DOMAIN 


1028 


EMINENT  DOMAIN 


This  constitution  of  Illinois  was  the  first  in 
which  the  word  "damaged''  was  inserted,  but 
in  1894  the  supreme  court  of  Colorado  enu- 
merated fourteen  other  states  which  had 
then  adopted  the  word;  City  of  Pueblo  v. 
Strait,  20  Colo.  13,  36  Pac.  789,  24  L.  R.  A. 
392,  46  Am.  St.  Rep.  273. 

In  awarding  damages  to  one,  a  part  of 
whose  land  is  sought  to  be  condemned  for 
public  use,  for  injury  to  his  remaining  land, 
injury  to  tracts  not  connected  with,  and  held 
under  different  titles  from,  although  adjoin- 
ing, that  from  which  the  parts  are  taken, 
cannot  be  considered;  Sharpe  v.  U.  S.,  112 
Fed.  893,  50  C.  C.  A.  597,  57  L.  R.  A.  932, 
where  Gray,  J.,  upon  careful  examination 
of  the  question,  says  that  it  is  right  and 
proper  to  include  the  damages,  in  the  shape 
of  deterioration  of  value,  to  the  residue  of 
the  tract,  but  that,  to  apply  this  rule,  "re- 
gard is  had  to  the  integrity  of  the  tract  as  a 
unitary  holding"  and,  where  the  holding 
from  which  the  part  is  taken  is  "of  such  a 
character  that  its  integrity  as  an  individual 
tract  shall  have  been  destroyed  by  the  tak- 
ing, depreciation  in  the  value  of  the  residue 
.  .  .  may  properly  be  considered  allowa- 
ble damages  in  adjusting  the  compensation 
to  be  given  to  the  owner  for  the  land  taken. 
It  is  often  difficult,  when  part  of  a  tract  is 
taken,  to  determine  what  is  an  independent 
tract,  but  the  character  of  the  holding,  and 
the  distinction  between  the  residue  of  a 
tract,  whose  integrity  is  destroyed  by  the 
taking,  and  what  are  merely  other  parcels 
or  holdings  of  the  same  owner,  must  be  kept 
in  mind."  The  case  is  accompanied  in  the 
last  citation  by  a  note  in  which  the  cases 
are  examined  and  which  concludes  that  "the 
general  rule  is  that  when  property  is  so  sit- 
uated that  it  is  used  as  a  unit,  and  each 
part  is  dependent  upon  the  other,  the  dam- 
ages will  not  be  limited  in  eminent  domain 
to  the  particular  piece  taken,  but  will  ex- 
tend to  the  whole."  Substantially  this  rule 
has  been  applied  in  a  great  variety  of  cases 
to  both  country  and  city  property;  Gorgas 
v.  R.  Co.,  215  Pa.  501,  64  Atl.  6S0,  114  Am. 
St.  Rep.  974;  Jeffery  v.  Osborne,  145  Wis. 
351,  129  N.  W.  931;  Union  Traction  Co.  v. 
Pfeil,  39  Ind.  App.  51,  78  N.  E.  1052;  St. 
Louis,  Memphis  &  S.  E.  R.  Co.  v.  Realty  & 
Investment  Co.,  205  Mo.  167,  103  S.  W.  977, 
120  Am.  St.  Rep.  724 ;  West  Skokie  Drainage 
Dist.  v.  Dawson,  243  111.  175,  90  N.  E.  377, 
17  Ann.  Cas.  776 ;  In  re  Lehigh  Valley  R.  Co., 
78  N.  J.  L.  699,  76  Atl.  1067;  State  v.  Su- 
perior Court  of  Clarke  County,  44  Wash.  108, 
87  Pac.  40;  Chicago  &  W.  M.  Ry.  Co.  v. 
Huncheon,  130  Ind.  529,  30  N.  E.  636 ;  Union 
Elevator  Co.  v.  R.  Co.,  135  Mo.  353,  36  S. 
W.  1071 ;  Rudolph  v.  R.  Co.,  186  Pa.  541,  40 
Atl.  1083,  47  L.  R.  A.  7S2 ;  and  see  Bauman 
v.  Ross,  167  U.  S.  568,  17  Sup.  Ct.  966,  42 
L.  Ed.  270,  where  the  cases  are  considered 
by  Gray,  J.  But  this  rule  did  not  apply 
when  a  man  owned  one  parcel  in  severalty 


and  he  and  his  wife  the  other  in  entirety, 
even  if  the  two  were  used  for  a  common 
purpose ;  Glendenning  v.  Stahley,  173  Ind. 
674,  91  N.  E.  234 ;  and  it  has  been  held  that 
the  rule  does  not  apply  to  parcels,  not  used 
as  a  whole  for  one  purpose,  when  separated 
by  highways;  Baker  v.  R.  Co.,  236  Pa.  479, 
84  Atl.  959;  or  to  such  parcels  separated  by 
a  railroad ;  Kansas  City,  M.  &  O.  R.  Co.  v. 
Littler,  70  Kan.  556,  79  Pac.  114 ;  or  a  stream 
of  water;  St.  Louis,  M.  &  S.  E.  R.  Co.  v. 
Aubuchon,  199  Mo.  352,  97  S.  W.  867,  116 
Am.  St.  Rep.  499,  8  Ann.  Cas.  822,  9  L.  R.  A. 
(N.  S.)  426,  and  note  which  repeats  the  con- 
clusion of  that  above  cited,  that  the  right 
to  have  the  parcels  treated  as  one  must  de- 
pend on  unity  of  use  and  dependence  of  each 
parcel  on  the  other ;  Baker  v.  R.  Co.,  236 
Pa.  479,  84  Atl.  959,  supra. 

See,  generally,  as  to  land  injured;  2  Am. 
R.  &  C.  Cas.  94 ;  5  id.  201 ;  property  damag- 
ed ;  25  Am.  L.  Rev.  924 ;  taken  or  damaged ; 
27  Am.  L.  Reg.  391 ;  Harman  v.  City  of  Oma- 
ha, 21  Cent.  L.  J.  130. 

What  estate  is  acquired.  Where  the  con- 
stitution contains  no  restriction,  a  fee  or  any 
less  estate  may  be  taken,  in  the  discretion 
of  the  legislature;  Dingley  v.  City  of  Bos- 
ton, 100  Mass.  544;  Prather  v.  Telegraph 
Co.,  89  Ind.  501;  Malone  v.  City  of  Toledo, 
34  Ohio  St.  541;  Patterson  v.  Boom  Co.,  3 
Dill.  465,  Fed.  Cas.  No.  10,829 ;  Sweet  v.  Ry. 
Co.,  79  N.  Y.  293;  Roanoke  City  v.  Berko- 
witz,  80  Va.  616;  Lewis,  Em.  Dom.  §  277; 
Rand.  Em.  Dom.  §  205;  Cooley,  Const.  Lim. 
683. 

It  is  within  the  power  of  the  legislature 
to  determine  the  interest  to  be  taken;  Fair- 
child  v.  City  of  St.  Paul,  46  Minn.  540,  49 
N.  W.  325 ;  and  it  may  authorize  the  taking 
of  a  fee  simple ;  Wood  v.  City  of  Mobile,  107 
Fed.  846,  47  C.  C.  A.  9;  In  re  City  of  New 
York,  190  N.  Y.  350,  83  N.  E.  299,  16  L.  R. 
A.  (N.  S.)  335;  contra,  Kellogg  v.  Malin,  50 
Mo.  496,  11  Am.  Rep.  426;  if  a  fee  is  taken 
under  the  statute,  the  land  may  afterwards 
be  devoted  to  other  uses;  id.;  Rand.  Em. 
Dom.  §  209.  If  the  state  condemn,  a  fee 
is  presumed;  Haldeman  v.  R.  Co.,  50  Pa. 
425 ;  Craig  v.  City  of  Allegheny,  53  Pa.  477 ; 
but  not  when  a  private  corporation  does  so; 
Rand.  Em.  Dom.  §  206 ;  when  the  act  author- 
ized a  railroad  company  to  take  the  fee  for 
a  right  of  way,  it  was  a  qualified  estate 
which  would  revert;  Kellogg  v.  Malin,  50 
Mo.  496,  11  Am.  Rep.  426 ;  Kellogg  v.  Malin, 
62  Mo.  429;  but  a  railroad  may  be  author- 
ized to  take  a  fee;  Raleigh  &  G.  R.  Co.  v. 
Davis,  19  N.  C.  451.  The  purpose  is  some- 
times said  to  indicate  the  estate  taken ;  Holt 
v.  City  Council  of  Somerville,  127  Mass.  408 ; 
Brooklyn  Park  Com'rs  v.  Armstrong,  45  N. 
Y.  234,  6  Am.  Rep.  70 ;  but  this  is  an  unsafe 
criterion  of  the  interest,  and  the  better  opin- 
ion is  that  it  merely  defines  the  use.  See 
New  Orleans  Pac.  Ry.  Co.  v.  Gay,  31  La. 
Ann.  430;  Commissioners  of  Parks  and  Bou- 


EMINENT  DOMAIN 


1029 


EMIXKXT  DOMAIN 


levards  of  City  of  Detroit  v.  R.  Co.,  90  Mich. 
385,  51  N.  W.  447 ;  New  York  S.  &  W.  R.  Co. 
v.  Trimmer,  53  N.  J.  L.  1,  20  Atl.  7G1.  Under 
a  provision  that  the  title  should  vest,  a  city 
took  a  fee  for  sewers  ;  Page  v.  O'Toole,  144 
Mass.  303,  10  N.  E.  851  ;  but  a  turnpike  com- 
pany only  an  easement;  Dunham  v.  Wil- 
liams, 36  Barb.  (N.  Y.)  136.  An  absolute 
power  of  alienation,  the  ear-mark  of  untram- 
melled and  unconditional  ownership  has  been 
supported  in  land  held  by  a  municipal  corpo- 
ration for  a  park;  In  re  City  of  Rochester, 
137  N.  Y.  243,  ::::  X.  E.  320;  or  an  alms- 
house; Heyward  v.  City  of  New  York,  7  X. 
Y.  314;  De  Varaigne  v.  Fox,  2  Blatchf.  95, 
Fed.  Cas.  No.  3,S3G ;  when  a  street  which 
had  been  taken  for  a  canal  was  abandoned, 
the  right  of  the  public  and  the  abutters  re- 
vived in  the  street ;  City  of  Logansport  v. 
Shirk,  88  Ind.  5G3;  and  land  taken  for  a  ca- 
nal was  afterwards  used  for  a  street ;  El- 
dridge  v.  City  of  Binghamton,  42  Hun  (N. 
Y.)  202;  Malone  v.  City  of  Toledo,  34  Ohio 
St.  541.  It  is  said  that  a  municipal  corpo- 
ration can  condemn  the  fee-simple  title  of 
land  for  streets,  but  only  so  as  to  acquire 
the  absolute  control  for  that  purpose  and  not 
a  proprietary  right  to  sell  or  devote  it  to  a 
private  use ;  Fairchild  v.  City  of  St.  Paul, 
4G  Minn.  540,  49  N.  W.  325.  When  the  fee  is 
taken  and  the  use  ceases,  the  state  may  au- 
thorize a  sale  for  other  uses,  but  when  only 
an  easement,  the  land  reverts;  Lewis,  Em. 
Dom.  596,  citing  cases ;  and  so  if  there  is  an 
abandonment;  id.  507. 

The  time  when  payment  must  be  made 
varies  according  to  the  exact  terms  of  the 
constitutional  provision  under  which  pro- 
ceedings are  taken.  In  the  majority  of  states 
where  there  is  no  express  provision  it  is  held 
that  compensation  need  not  be  concurrent  in 
time  with  the  taking,  it  is  sufficient  if  an 
adequate  and  certain  remedy  is  provided  by 
which  the  owner  may  compel  payment  of 
damages;  In  re  Appointment  of  U.  S.  Com'rs, 
00  X.  Y.  227  ;  and  this  means  reasonable  le- 
gal certainty;  Sage  v.  City  of  Brooklyn,  89 
N.  Y.  1S9 ;  or  if  there  is  a  definite  provision 
or  security  for  the  payment  of  the  compensa- 
tion ;  Commissioners'  Court  of  Loundes 
County  v.  Boure,  34  Ala.  4G1 ;  Cairo  &  F.  R. 
Co.  v.  Turner,  31  Ark.  494.  25  Am.  Rep.  564 ; 
Moody  v.  R.  Co.,  20  Fla.  597;  Briggs  v.  Ca- 
nal Co.,  137  Mass.  71 ;  Orr  v.  Quimby,  54  N. 
H.  590  (but  Ash  v.  Cummings,  50  N.  H.  591, 
seems  contra)  ;  Ilawley  v.  Ilarntll,  19  Conn. 
142;  Ferris  v.  Bramble,  5  Ohio  St.  109;  In 
re  Yost,  17  Pa.  524  (contra,  as  to  private 
roads;  In  re  Clowes'  Private  Road,  31  Pa. 
12)  ;  Tuckahoe  Canal  Co.  v.  R.  Co..  11  Leigh 
(Va.)  42,  36  Am.  Dec.  374;  Foster  v.  Bank, 
57  Yt.  128;  State  v.  Mclver,  88  X.  C.  686; 
Smeaton  v.  Martin.  57  Wis.  364,  15  X.  W.  403; 
Great  Falls  Mfg.  Co.  v.  G;irland,  25  Fed.  521. 
The  same  rule  was  formerly  followed,  in  some 
states  in  which  later  constitutions  provided 
for  prior  payment,  or  required  compensation 


where  none  was  provided  for  before,  as 
Maryland;  Compton  v.  Railroad,  3  Bland, 
Ch.  (Md.)  era  v.  Armstrong,  I 

427;  People   v.    B  I;    Prat her 

v.  R.  Co.,  52  Ind.  16;  tes require  that 

the  owner  shall  receive 
entry;  Brady  v.  Bronson,  45  Cal 
Fox  v.  R.  Co.,  31  Cal.  538,  which  r. 
the  cases,  established  a  different  rule,  and 
was  overruled);  Yilhac  v.  R.  Co.,  53  <\, 
City  of  Paris  v.  Mason,  37  Tex.  417;  Har- 
ness v.  Canal  Co.,  1  Md.  Ch.  24S ;  Hall  v.  Peo- 
ple, 57  111.  307;  Chicago,  St.  L.  &  W.  K.  Co. 
v.  Gates,  120  111.  86,  11  X.  E.  5  27 ;  hut  in 
Maine,  while  title  does  not  p. 
may  be  taken  before  payment,  and  a  n 
able  time — three  years  being  so  held — allow- 
ed therefor;  Cushman  v.  Smith,  34  Me.  247; 
Riche  v.  Water  Co.,  75  Me.  91.  It  has  been 
held  that  the  state  when  acting  directly  may 
provide  that  title  shall  pass  when  the 
amount  is  ascertained,  it  being  presumed 
that  payment  will  be  made  by  the  state: 
Ballou  v.  Ballou,  78  X.  Y.  325 ;  but  any  such 
declaration  in  a  statute  is  controlled  by  the 
constitution,  and  it  was  held  in  a  Xew  York 
case  that  payment  must  be  prior  to  or  con- 
current with  the  taking;  Garrison  v.  New 
York,  21  Wall.  (U.  S.)  19G,  22  L.  Ed.  612. 
In  many  state  constitutions  there  is  a  dis- 
tinction between  the  direct  exercise  of  the 
power  by  the  government  and  the  delegated 
power  conferred  on  private  corporations. 
Under  such  a  provision  it  was  said  that  in 
both  cases  the  sovereign  power  is  coupled 
with  the  correlative  duty;  State  v.  City  of 
Perth  Amboy,  52  N.  J.  L.  132,  18  Atl.  670; 
but  municipal  corporations  must  settle  first 
when  exercising  delegated  power ;  id. ;  Low- 
eree  v.  City  of  Newark,  38  N.  J.  L.  151.  And 
it  is  said  by  a  writer  of  authority,  "the  al- 
most invariable,  and  certainly  the  just, 
course  being  to  require  payment  to  precede 
or  accompany  the  act  of  appropriation:"  2 
Dill.  Mun.  Corp.  G15.  Generally,  however, 
when  the  compensation  is  to  be  paid  by  the 
state  or  is  a  charge  upon  the  funds  of  a  mu- 
nicipality that  is  held  sufficient;  Haverhill 
Bridge  Proprietors  v.  County  Com'ra,  103 
Mass.  120,  4  Am.  Rep.  518;  State  v.  Mclver, 
88  N.  C.  686;  Mayor,  etc.,  of  Pittsburgh  v. 
Scott,  1  Pa.  309;  In  re  Mayor,  etc.,  of  City 
of  Xew  York.  09  X.  Y.  569,  2  X.  E.  012;  Jef- 
fersonville,  M.  &  I.  R.  Co.  v.  Daugherty,  40 
Ind.  33;  Brock  v.  Hishen,  40  Wis.  674  :  lie 
v.  Fuller,  6S  Pa.  170;  but  if  the  available 
resources  are  shown  to  be  insufficient  an  en- 
try may  be  enjoined ;  Keene  v.  Borough  of 
Bristol.  20  Pa.  46. 

The  fact  that  there  is  a  limitation  of  the 
amount  to  be  expended  does  not  invalidate 
the  law  for  taking  property;  U.  S.  v.  Ry. 
Co.,  160  U.  S.  668,  16  Sup.  Ct.  427,  40  L.  Ed. 
576. 

When  the  title  passes.  It  naturally  fol- 
lows that  no  title  can  be  acquired  under  the 
proceedings  until   the  compensation   is   paid 


EMINENT  DOMAIN 


1030 


EMINENT  DOMAIN 


or  so  secured  as  to  be  treated  in  law  as  the 
equivalent    of   payment.     Accordingly   when 
the  title  is  permitted  to  vest  before  payment, 
it  is  said  to  be  subject  to  a  claim  for  com- 
pensation in  the   nature  of  a   vendor's  lien 
enforcible  in  equity ;  Lewis,  Em.  Dom.  §  G20, 
and  note  citing  cases.    And  a  sale  or  mort- 
gage of  the  property  could  only  be  made  sub- 
ject to   such   prior   right   of  the   landowner, 
which  is  maintained  by  some  courts  on  the 
theory  of  a  lien,  and  by  otbers  on  that  of 
title  remaining  in  the  owner;  id.  §  621.     In 
Pennsylvania,  however,  an  extreme  doctrine 
prevails;  the  appropriation  is  valid  and  ef- 
factual   where  compensation  is   paid   or   se- 
cured ;  Levering  v.  R.  Co.,  8  W.  &  S.  (Pa.)  459  ; 
McClinton   v.   R.  Co.,  66  Fa.   404;   Dimmick 
v.   Brodhead,   75   Pa.   464;    and   title  passes 
when  the  bond  is  approved  by  the  court  un- 
der the  statute;  Fries  v.  Mining  Co.,  85  Pa. 
73;  and  remains  vested  even  if  the  bond  is 
found  to  be  valueless ;  Wallace  v.  R.  Co.,  138 
Pa.  168,  22  Atl.  95;  and  there  is  no  lien  for 
compensation;   Appeal  of   Hoffman,  118   Pa. 
512,  12  Atl.  57.     By  the  act  of  location  the 
corporation   acquires   a   conditional   title  as 
against  the  land-owner,  which   becomes  ab- 
solute upon   making   or  securing  compensa- 
tion ;  Williamsport  &  N.  B.  R.  Co.  v.  R.  Co., 
141  Pa.  407,  21  Atl.  645.  12  L.  R.  A.  220 ;  as 
against  third  parties  there  is  a  valid  loca- 
tion after  entry  made,  lines  run,   map  pre- 
pared,  and   a  report   made  to  the   directors 
and  adopted  by  them;   Pittsburgh,  V.   &  C. 
Ry.  Co.  v.  R.  Co.,  159  Pa.  331,  28  Atl.  155; 
but  running  a  line,  making  a  map,  and  a  re- 
port to  the  directors,  not  acted  on,  did  not 
confer  title  to  the  location  to  justify  an  in- 
junction to  restrain  another  company  from 
taking  the  land   for  a  railway,   though  the 
land  was  owned  by  the  plaintiff  company; 
Williamsport  R.  Co.  v.  R.  Co.,  141  Pa.  407, 
21  Atl.  645,  12  L.  R.  A.  220. 

If  a  land-owner,  knowing  that  a  railroad 
company  has  entered  upon  his  land,  and  is 
engaged  in  constructing  its  road  without  hav- 
ing complied  with  a  statute  requiring  either 
payment  by  agreement  or  proceedings  to  con- 
demn, remains  inactive  and  permits  it  to  go 
on  and  expend  large  sums  in  the  work,  he 
cannot  maintain  either  trespass  or  eject- 
ment, and  will  be  restricted  to  a  suit  for 
damages;  Roberts  v.  R.  Co.,  158  U.  S.  1,  15 
Sup.  Ct.  756,  39  L.  Ed.  873. 

The  actual  cash  market  value,  at  the  time, 
of  property  actually  taken  must  be  allowed; 
Burt  v.  Wigglesworth,  117  Mass.  302;  Mis- 
sissippi River  Bridge  Co.  v.  Ring,  58  Mo. 
491 ;  Chicago,  K.  &  W.  R.  Co.  v.  Parsons,  51 
Kan.  408,  32  Pac.  1083 ;  Chicago  &  E.  R.  Co. 
v.  Jacobs,  110  111.  414 ;  Mississippi  &  R.  Riv- 
er Boom  Co.  v.  Patterson,  98  U.  S.  403,  25 
L.  Ed.  206.  It  has  been  said  that  the  true 
criterion  of  market  value  is  the  sum  which 
the  property  would  bring  if  sold  at  auction, 
conducted  in  the  fairest  possible  way;  Low 


v.   Railroad,  63  N.   H.    557,  3  Atl.   739;  but 
this  is  not  the  result  of  the  best  considered 
cases.     "Market  value  means  the  fair  value 
of  the  property  as  between  one  who  wants  to 
purchase  and  one  who  wants  to  sell  an  ar- 
ticle; not  what  could  be  obtained  for  it  un- 
der peculiar  circumstances;  not  its  specula- 
tive value;  not  a  value  obtained  from  the 
necessity  of  another.    Nor  is  it  to  be  limited 
to  that  price  which  the  property  would  bring 
when  forced  off  at  auction  under  the  ham- 
mer;" Lawrence  v.  Boston,   119  Mass.   126; 
it   is   measured    by    the   difference    between 
what  it  would  have  sold  for  before  the  in- 
jury, and  what  it  would  have  sold  for  as  af- 
fected by  it;    Setzler  v.  R.   Co.,   112  Pa.  56, 
4  Atl.  370;  what  would  be  accepted  by  one 
desiring  but  not  obliged  to  sell  and  paid  by 
one    under    no    necessity    of    buying;    Pitts- 
burgh, V.  &  C.  Ry.  Co.  v.  Vance,  115  Pa.  325, 
8    Atl.    764;    Little    Rock    Junction    Ry.    v. 
Woodruff,  49  Ark.  3S1,  5  S.  W.   792,  4  Am. 
St.  Rep.  51 ;  it  is  not  to  be  measured  by  the 
interest  or  necessity  of  the  particular  own- 
er; Pittsburgh  &  L.  E.  R.   Co.  v.  Robinson, 
95  Pa.  426;  nor,  on  the  other  hand,  by  those 
of  the  appropriator ;  Montgomery  County  v. 
Bridge    Co.,    110   Pa.    54,    20   Atl.    407;    San 
Diego   Land   &  Town  Co.   v.   Neale,   88  Cal. 
50,  25  Pac.  977,  11  L.  R.  A.  604 ;  Selma,  R.  & 
D.  R.  Co.  v.  Keith,  53  Ga.  178 ;  Everett  v.  R. 
Co.,  59  la.  243,  13  N.  W.  109;   when  these 
principles  are  fairly  applied  due  considera- 
tion may  be  given  to  auction  value ;   Pitts- 
burgh, V.  &  C.  Ry.  Co.  v.  Vance,  115  Pa.  325, 
S  Atl.  7G4 ;  but  its  availability  for  other  spe- 
cial   purposes    to    which    it    is    particularly 
adapted  by  reason  of  "its  natural  advanta- 
ges, or  its  artificial  improvements,  or  its  in- 
trinsic character,"  may  be  considered  as  an 
element  of  value;    Lewis,   Em.  Dom.   §  479, 
and  cases  cited;  as,  for  railroad  approaches 
to  a  large  city;  Webster  v.  R.  Co.,  116  Mo. 
114,  22  S.  W.  474;  Mississippi  River  Bridge 
Co.  v.  Ring,  58  Mo.  491 ;  or  for  a  bridge  site ; 
Young  v.  Harrison,   17  Ga.  30;  Little  Rock 
Junction  Ry.  v.  Woodruff,  49  Ark.  381,  5  S. 
W.  792,  4  Am.   St.  Rep.  51 ;  or  a  mill  site; 
Louisville,    N.   O.   &  T.    R.   Co.   v.    Ryan,   64 
Miss.  404,  8  South.  173 ;  so  also  its  situation 
and    surroundings    for    railroad    purposes; 
Currie  v.  R.  Co.,  52  N.  J.  L.  391,  20  Atl.  56, 
19  Am.    St.   Rep.   452;  Cohen   v.   R.   Co.,   34 
Kan.  158,  8  Pac.  138,  55  Am.  Rep.  242 ;  John- 
son v.  R.  Co.,  Ill  111.  413;  or  market-garden- 
ing; Chicago  &  E.  R.  Co.  v.  Jacobs,  110  111. 
414;    or  subdivision   into   village  lots;   Wat- 
son v.  Ry.  Co.,  57  Wis.  332,  15  N.  W.  46S; 
South  Park  Com'rs   v.   Dunlevy,   91  111.   49; 
Cincinnati  &  S.  Ry.  Co.  v.  Longworth's  Ex'rs, 
30  Ohio  St.  108;   or  in  case  of  a  pond,  for 
ice  or  milling,  there  being  no  other  one  near ; 
Trustees    of    College    Point    v.    Dennett,    5 
Thomp.  &  C.  (N.  Y.)  217;  or  for  warehouse 
purposes;    Russell  v.   R.  Co.,   33    Minn.   210, 
22  N.  W.  379.     When  the  water  of  a  stream 


EMINENT  DOMAIN 


1031 


EMINENT  DOMAIN 


running  through  a  farm  was  taken  by  a  vil- 
lage for  its  waterworks,  the  owner  was  en- 
titled to  damages,  not  only  for  being  deprived 
of  the  water  for  farm  purposes,  but  also 
for  being  deprived  of  the  opportunity  to  sell 
water  rights  to  prospective  purchasers  of  vil- 
lage lots  plotted  out  for  sale  in  a  part  of  the 
farm;  Bridgeman  v.  Village  of  Ilardwick, 
67  Vt.  653,  31  Atl.  33.  The  pollution  of  a 
stream  so  as  to  render  it  unfit  for  use  in  a 
paper  mill,  resulting  from  the  opening  of  a 
railroad  through  the  hind,  was  a  proper  ele- 
ment to  be  considered  in  estimating  the  dam- 
ages ;  Rudolph  v.  R.  Co.,  186  Pa.  541,  40  Atl. 
1083,  47  L.  R.  A.  782.  So  its  adaptability  for 
the  particular  purpose  for  which  the  con- 
demnation is  bought  may  be  shown,  as  is- 
lands well  situated  for  boom  purposes;  Mis- 
sissippi &  R.  River  Boom  Co.  v.  Patterson, 
98  U.  S.  403,  25  L.  Ed.  206 ;  or  the  bed  of  an 
old  canal  desired  for  a  railroad;  In  re  New 
York.  L.  &  W.  R.  Co.,  27  Hun  (N.  Y.)  116. 
But  mere  speculative  opinions  and  considera- 
tions will  be  excluded  from  consideration ; 
Gardner  v.  Brookline,  127  Mass.  358;  Tide 
Water  Cajial  Co.  v.  Archer,  9  G.  &  J.  (Md.) 
479;  Chicago  &  E.  R.  Co.  v.  Blake,  116  111. 
163,  4  N.  E.  4SS;  Pittsburgh  &  W.  R.  Co.  v. 
Patterson,  107  Pa.  461 ;  Watson  v.  R.  Co.,  57 
Wis.  332,  15  N.  W.  468;  New  Jersey  R.  Co. 
v.  Suydam,  17  N.  J.  L.  25. 

See,  generally.  Peoria  Gas  Light  &  Coke  Co. 
v.  R.  Co.,  146  111.  372,  34  N.  E.  550,  21  L.  R. 
A.  373;  57  Am.  &  Eng.  R.  R.  Cas.  SOS,  n;  2 
Am.  R.  R.  &  Corp.  Rep.  744,  n. 

Assessment  of  benefits  on  the  remainder  of 
a  tract  of  which  part  is  taken  is  prohibited 
by  the  constitution  in  some  states,  either  gen- 
erally, as  in  Iowa  and  Ohio,  in  favor  of  any 
corporation,  as  in  Arkansas.  Kansas,  and 
South  Carolina,  or  any  other  than  municipal, 
as  in  California,  North  Dakota,  and  Wash- 
ington. In  the  other  states  there  is  a  di- 
versity of  decisions  which  have  been  thus 
classified,  as :  1.  Not  considered.  2.  Spe- 
cial benefit  is  set  off  against  damages  to  the 
remainder  but  not  against  the  value  of  the 
part  taken.  3.  General  or  special,  as  in  the 
last  class.  4.  Special,  against  both  damages 
to  remainder  and  value  of  part  taken.  5. 
General  and  special,  as  in  the  last  class. 
Lewis,  Em.  Dom.  §  465. 

In  the  first  class  the  benefit  Is  excluded 
because  compensation  is  held  to  be  money ; 
Brown  v.  Beatty,  34  Miss.  227,  241,  69  Am. 
Dec.  389;  Board  of  Levee  Com'rs  for  Yazoo- 
Mississippi  Delta  v.  Harkleroads,  62  Miss. 
807;  Burlington  &  C.  R.  Co.  v.  Schweikart, 
10  Cal.  178.  14  Pac.  329;  Dulanoy  v.  Nolan 
County,  85  Tex.  225,  20  S.  W.  70;  Jones  v. 
R.  Co.,  30  Ga.  43;  Paducah  &  M.  R.  Co.  v. 
Stovall,  12  Heisk.  (Tenn.)  1.  In  some  states 
the  constitution  prohibits  the  deduction  of 
benefits;  though  in  some  of  them  it  is  per- 
mitted in  favor  of  public  corporations ; 
Nichols,  Em.  Dom.  §  27S,  where  these  states 
are  enumerated. 


The  second  rule  which  obtains  has  been 
justly  criticised  as  illogical;  Lewis,  Em. 
Dom.  §  467;  but  it  rots  upon  the  theory 
that  for  the  part  taken  compensation  in  mon- 
ey is  required,  while  for  Incidental  damage 
the  legislature  may  prescribe  the  rule  of 
Qsation.  This  was  the  doctrine  laid 
down  in  Tennessee  which,  with  several  oth- 
er states,  adheres  to  it;  Woodfolk  v.  R.  Co., 

2  Swan    (Tenn.)    -1^2;   Bobbins  v.  R.  Co..  6 
Wis.    636;    Shipley    v.    R.    Co.,    34    Md 
Fremont,  E.   &   M.   V.   It.  Co.   v.  Win! 

Neb.  585,  10  N.  W.  491;  Chicago,  K.  &  N. 
R.  Co.  v.  Wiebe,  25  Neb.  542,  41  N.  YV.  297. 
The  third  class  rests  upon  the  same  idea 
of  requiring  compensation  in  money  for  the 
part  taken,  but  treating  the  claim  for  dam- 
age to  the  remainder  as  consequential  and 
properly  subject  to  the  set-off  of  all  advan- 
tages; and  in  Kentucky,  from  which  comes 
the  leading  case,  a  judgment  was  reversed 
for  an  instruction  excluding  general  bene- 
fits ;    Henderson   &  N.   R.    Co.   v.   Dickerson, 

17  B.  Monr.  (Ky.)  173,  66  Am.  Dec.  1  1^;  City 
Council  of  Augusta  v.  Marks,  50  Ga.  612 
(but  see  Young  v.  Harrison,  17  Ga.  30,  in 
which  a  different  doctrine  was  applied, 
which  was  passed  without  mention  in  Jones 
v.  Wills  Val.  R.  Co.,  30  Ga.  43,  which  laid 
down  the  rule  afterwards  adhered  to) ;  Buf- 
falo, B.,  B.  &  C.  R.  Co.  v.  Ferris,  20  Tex. 
5S8;  Tait  v.  Matthews,  33  Tex.  112;  City  of 
Paris  v.  Mason.  37  Tex.  447;  Texas  &  St  L. 
R.  Co.  v.  Matthews,  60  Tex.  215;  but  see 
Bourgeois  v.  Mills,  60  Tex.  76;  New  Orleans 
Pac.  Ry.  Co.  v.  Gay,  31  La.  Ann.  430. 

The  fourth  rule  allows  special  benefits 
against  both  the  value  of  the  part  taken 
and  damage  to  the  remainder,  because  just 
compensation  is  construed  to  mean  recom- 
pense for  the  net  resulting  injury,  and  ex- 
cludes a  share  of  the  general  advantage,  be- 
cause to  allow  it  would  be  to  distribute  it 
unequally,  charging  those  whose  land  is  tak- 
en for  that  which  the  rest  of  the  community 
enjoy  without  cost ;  Adden  v.  R.  R.,  55  X.  H. 
413,  20  Am.  Rep.  220;  Meacham  v.  R.  Co.,  1 
Cush.  (Mass.)  291  ;  Clark  v.  City  of  Worces- 
ter. 12.1  Mass.  220;  Cross  v.  Plymouth  Coun- 
ty, 125  Mass.  557;  Trinity  College  v.  City 
of  Hartford,  32  Conn.  4 .".2 ;  Gautier  v.  i 
55  N.  J.  L.  SS,  25  Atl.  322,  IT  L.  R.  A.  785; 
Set/.ler  v.  R.  Co.,  112  Pa.  50,  4  At!.  370 
(which  lays  down  the  rule  with  great  clear- 
ness not  only  on  this  point  but  in  confining 
the  consideration  of  inconvenience  and  ad- 
vantage to  the  effect  of  both  upon  the  mar- 
ket value)  ;  Freedle  v.  R.  Co..  19  n.  i 
Wyandotte,  K.  O.  &  X.  W.  Ry.  Co.  v.  Waldo, 
70  Mo.  629;  Daugherty  v.  Brown,  91  V 

3  S.  W.  210;  Winona  &  St.  P.  R.  Co.  v.  YYal- 
dron,  11  Minn.  515,  (Gil.  392),  88  Am.  Dec. 
100;  Arbrusb  v.  Town  of  Oakdalo.  28  Minn. 
01,  9  N.  W.  .".«»;  Beekman  v.  Jackson  County, 

18  Or.  283,  22  Pac  1074  (but  see  Putnam  v. 
Douglas  County.  6  Or.  328,  25  Am.  Rep.  527). 
See  L.  R.  2  C.  P.  63S. 


EMINENT  DOMAIN 


1032 


EMINENT  DOMAIN' 


The  last  class  permits  all   benefits  to  be 
set  off  against  all  damages  of  either  kind, 
placing  the  rule  on  natural  equity,  and  in  a 
leading  case   (Young  v.  Harrison,  17  Ga.  30, 
afterwards    apparently    overruled    as   stated 
supra) ,  it  is  argued  that  the  term  compensa- 
tion comes  from  the  civil  law  which  so  con- 
strues  it.     This   rule  is  accepted   by   many 
courts    which,    among    other    reasons,    hold 
that  compensation  does  not  mean  money  but 
includes  any  means  of  recompense:  Califor- 
nia  Pac.   R.    Co.   v.    Armstrong,  46  Cal.  85; 
Whiteman's  Ex'x  v.  R.  Co.,  2  Harr.    (Del.) 
514,  33  Am.  Dec.  411;  Kramer  v.  Ry.  Co.,  5 
Ohio  St.  140;  Piatt  v.  Pennsylvania  Co.,  43 
Ohio  St.  228,  1  N.  E.  420  (before  the  consti- 
tution of  1851) ;  Ross  v.  Davis,  97  Ind.  79 ; 
Rassier  v.  Grimmer,  130  Ind.  219,  23  N.  E. 
866,  29  N.  E.  918;  Greenville  &  C.  R.  Co.  v. 
Partlow,  5  Rich.    (S.  C.)   428;  White  v.   R. 
Co.,   6  Rich.    (S.  C.)    47.     See  Bourgeois  v. 
Mills,  60  Tex.   76.     In  New  York  this  rule 
applies  to  cases  where  land  is  taken  by  the 
state  and   municipal   corporations;  Genet  v. 
City  of  Brooklyn,  99  N.  Y.  296,  1  N.  E.  777 ; 
Eldridge  v.  City  of  Binghampton,  120  N.  Y. 
309,  24  N.  E.  462 ;  but  in  the  case  of  private 
corporations  the  third  rule  seems  to  apply; 
Washington   Cemetery   v.    R.   Co.,   68  N.   Y. 
591 ;  Newman  v.  Ry.  Co.,  118  N.  Y.  618,  23 
N.  E.  901,  7  L.  R.  A.  289;  Bohm  v.  R.  Co., 
129  N.  Y.  576.  29  N.  E.  802,  14  L.  R.  A.  344. 
See  Heath  v.  Barmore,  50  N.  Y.  302.    In  Illi- 
nois the  cases  prior  to  1870  were  under  the 
fifth  rule ;  Alton  &  S.  R.  Co.  v.  Carpenter,  14 
111.   190;  and  since  the  constitution  of  that 
year  and   a  subsequent  statute  it  has   been 
held  that  benefits  were  prohibited  as  against 
the  value  of  land  taken;   Carpenter  v.  Jen- 
nings, 77  111.  250;  that  general  benefits  can- 
not be  set  off  against  either  value  or  dam- 
age;  Keithsburg  &  E.  R.  Co.   v.   Henry,  79 
111.   290;   and  that  special  damage  may   be 
charged  against  the  damage  to  the  residue; 
Lewis,  Em.  Dom.  §  470,  where  the  cases  are 
collected  and  analyzed. 

The  last  rule  enumerated  seems  to  be  ap- 
proved by  the  federal  courts ;  Chesapeake  & 
O.  Canal  Co.  v.  Key,  3  Cra.  C.  C.  599,  Fed. 
Cas.  No.  2,649 ;  Kennedy  v.  Indianapolis,  103 
U.  S.  599,  26  L.  Ed.  550;  and  upon  candid 
consideration  it  must  be  admitted  that  if  ben- 
efits are  to  be  allowed  at  all  it  is  the  only 
logical  doctrine.  This  seems  also  to  be  the 
conclusion  of  the  writer  whose  classification 
of  the  decisions  is  here  given,  and  to  whose 
discussion  of  the  whole  subject  reference 
may  profitably  be  made;  Lewis,  Em.  Dom.  § 
471.  The  subject  was  considered  in  the 
United  States  Supreme  Court  at  length  by 
Gray,  J.,  who  held  that  in  applying  the  law 
to  the  District  of  Columbia  it  was  proper  to 
'take  into  consideration,  by  way  of  lessening 
the  whole  or  either  part  of  the  sum  due  him, 
any  special  and  direct  benefits,  capable  of 
present  estimate  and  reasonable  computa- 
tion, caused  by  the  establishment  of  the  high- 


way to  the  part  not  taken ;"  Bauman  v.  Ross, 
167  TJ.  S.  548,  17  Sup.  Ct.  966,  42  L.  Ed.  270. 
This  view  also  prevailed  in  In  re  City  of 
New  York,  190  N.  Y.  350,  S3  N.  E.  299,  16  L. 
R.  A.  (N.  S.)  335;  Taber  v.  R.  Co.,  28  R.  I. 
269,  67  Atl.  9. 

Damage  to  property  injured  but  not  phys- 
ically taken.  A  question  of  great  impor- 
tance arises  either  under  the  later  constitu- 
tional provisions  for  compensation  for  injury 
as  well  as  actual  taking,  or  under  the  exten- 
sion of  the  meaning  of  the  word  taking  to 
include  consequential  damages  so  called, 
when  the  injury  to  property  is  so  great  and 
permanent  as  practically  to  deprive  the  own- 
er of  all  use  and  enjoyment  of  it. 

In  such  cases  the  only  remedy  of  the  prop- 
erty owner,  in  the  absence  of  legislation,  is 
a  common-law  action,  and  for  permanent  or 
continuing  injury   trespass   is  totally  inade- 
quate, as  is  evidenced  by  the  fact  that  to  re- 
strain  it   when    continuous  is  a   recognized 
ground  of  equitable  interference.     In  many 
cases   it  is   held   that   prospective   damages 
cannot  be  recovered,  and  the  property  owner 
is  thus  put  to  the  necessity  of  resorting  to 
repeated   actions,   but  when  the  trespass  is 
the  result  of  the  exercise  of  a  public  use  au- 
thorized by  statute  this  remedy  is  not  only 
unsatisfactory  but  illogical.     Accordingly  it 
is  held  in  many  cases  that  such  damage  be- 
ing of  a  permanent  nature  there  should  be 
but  one  recovery  for  all  damages  past,  pres- 
ent, and  future;  and  it  has  been  held  that 
they  may  be  allowed.    An  action  on  the  case 
is  the  proper  remedy  in  such  cases,  but  the 
measure  of  damages  applied  is  not  uniform, 
though  when  the  liberal  rule  referred  to  is 
adopted  the  payment  vests  in  the  defendant 
a  right  to  maintain  its  works  and  operates 
as  a   bar   to  further  suits.     In   some  cases 
such  an  action  has  also  been  held  to  have 
the  effect  of  statutory  proceedings  for  the  as- 
sessment of  compensation ;  Chicago  &  E.  I. 
R.  Co.  v.  Loeb,  118  111.  203,  8  N.  E.  460,  59 
Am.  Rep.  341;   Penn.  Mut.  Life  Ins.  Co.  v. 
Heiss,  141  111.  35,  31  N.  E.  138,  33  Am.   St. 
Rep.  273.    This  subject  is,  however,  involved 
in  great  confusion,  which  should  undoubted- 
ly be  removed  by  legislative  enactments  pro- 
viding  for   the   acquisition   of   the   right  to 
cause,  and  the  assessment  of  compensation 
for,  permanent  injury  to  property  whenever 
consequential  damages  are  provided  for  by 
constitution  or  statute,  or  recognized  by  the 
courts.     As  to  this  subject,  see  discussions 
with  copious  citations  of  cases  in  Lewis,  Em. 
Dom.  §  624;  Rand.  Em.  Dom.  §  308;  26  Am. 
L.  Reg.  281,  345. 

Who  are  proper  and  necessary  parties. 
The  compensation  must  be  paid  to  the  true 
owner  as  on  that  the  title  depends ;  Hatch  v. 
Mayor,  82  N.  Y.  436;  South  Park  Com'rs  v. 
Todd,  112  111.  379 ;  Searl  v.  School  Dist,  133 
U.  S.  553,  10  Sup.  Ct.  374,  33  L.  Ed.  740; 
and  if  paid  to  the  wrong  person,  it  may  be 
recovered  from  him  by  one  having  an  inter- 


EMINENT  DOMAIN 


1033 


EMINENT  DOMAIN 


est;  De  Peyster  v.  Mali,  92  N.  Y.  202;  Sher- 
wood v.  City  of  Lafayette,  109  Ind.  411,  10 
N.  E.  89,  58  Am.  Rep.  414;  but  if  title  is 
doubtful,  it  may  be  paid  into  court;  Jones 
v.  R.  Co.,  41  Fed.  TO;  In  re  Department  of 
Parks,  73  N.  Y.  560;  and  if  afterwards  paid 
out  wrongly  the  person  who  paid  it  in  is  not 
liable;  U.  S.  v.  Dunnington,  140  U.  S.  33S, 
13  Sup.  Ct.  79,  36  L.  Ed.  996. 

The  general  principle  is  that  the  neces- 
sary parties  to  a  proceeding,  independent  of 
statutory  requirements,  are  all  persons  hav- 
ing an  interest  in  the  property  taken,  as  pro- 
prietors, or  such  as  is  recognized  by  the  law 
of  the  state  as  property ;  Lewis,  Em.  Dom. 
§  :;17.  When  the  ownership  is  divided,  each 
is  entitled  to  his  share,  as  life-tenant  and  re- 
mainderman ;  Miller  v.  City  of  Asheville, 
112  N.  C.  7.39.  16  S.  E.  762;  Kansas  City,  S. 
&  M.  R.  Co.  v.  Weaver,  86  Mo.  473;  dowress 
after  admeasurement ;  Borough  of  York  v. 
Welsh,  117  Pa.  174,  11  Atl.  390 ;  but  not  be- 
fore the  dower  is  assigned;  Todemier  v.  As- 
pinwall,  43  111.  401 ;  and  only  as  against  the 
award  when  it  is  inchoate;  Wheeler  v.  Kirt- 
land,  27  N.  J.  Eq.  534.  The  interest  of  a 
tenant  must  be  compensated ;  Frost  v.  Earn- 
est 4  Whart.  (Pa.)  86;  if  the  lease  has  ac- 
tual value  to  him;  Corrigan  v.  City  of  Chi- 
cago, 144  111.  537,  33  N.  E.  746,  21  L.  R.  A. 
212;  sometimes  separately;  Atchison,  T.  & 
S.  F.  R.  Co.  v.  Schneider,  127  111.  144,  20  N. 
E.  41,  2  L.  R.  A.  422;  and  sometimes  by  ap- 
portionment of  the  entire  amount;  Edmands 
v.  Boston,  108  Mass.  535. 

When  part  of  land  under  lease  is  taken, 
the  lease  is  not  terminated  or  the  tenant  dis- 
charged ;  Stubbings  v.  Village  of  Evanston, 
136  111.  37,  26.  N.  E.  577,  11  L.  R.  A.  839,  29 
Am.  St.  Rep.  300 ;  but  both  he  and  the  lessor 
are  entitled  to  compensation  for  their  re- 
spective losses;  Patterson  v.  City  of  Boston, 
20  Pick.  (Mass.)  159;  Foote  v.  City  of  Cin- 
cinnati, 11  Ohio  408,  38  Am.  Dec.  737 :  Work- 
man v.  Mifllin,  30  Pa.  302;  1  Thayer,  Cas. 
Const.  L.  968.  See  Rand.  Em.  Dom.  §  304; 
Corrigan  v.  City  of  Chicago,  144  111.  537,  33 
N.  E.  740,  21  L.  R.  A.  212,  with  note  on 
rights  of  tenants,  etc.,  in  such  cases;  5  Am. 
R.  R.  &  Corp.  Cas.  208,  note,  as  to  grantor 
and  grantee,  and  29  Am.  St.  Rep.  304,  note, 
as  to  leased  premises.  See  also  29  Am.  L. 
Rev.  351,  as  to  the  abatement  of  rent  when 
leased  premises  are  appropriated. 

As  to  mortgagees  the  decisions  lack  both 
uniformity  and  consistency,  and  this  result 
is  largely  due  to  the  differing  views  taken 
of  the  position  of  a  mortgagee  before  the 
law.  As  between  the  parties  to  the  mortgage 
the  award  takes  the  place  of  the  land  and 
the  lien  attaches  to  it;  Astor  v.  Miller,  2 
Paige  Ch.  (N.  Y.)  OS;  Gimbel  v.  Stolte,  59 
Ind.  453:  Chicago,  M.  &  St.  P.  R.  Co.  v.  Bak- 
er, 102  Mo.  500,  15  S.  W.  64 ;  Union  Mut.  Life 
Ins.  Co.  v.  Slee.  123  Til.  95,  13  N.  E.  222; 
as  to  all  rights  and  interests;  TTtter  v.  Rich- 
mond, 112  N.  Y.  610,  20  N.  E.  554.    The  dam- 


ages should  be  apportioned  by  the  jury  be- 
tween owner,  Le  tc. ;  RentZ 
v.  Detroit,  4S  Mich.  517.  12  N.  W.  694,  911. 
In  some  cases  the  remainder  of  the  land 
must  be  exhausted  before  the 
resort  to  the  fund;  Bank  of  Auburn  v.  Rob- 
erts, 44  N.  Y.  192  ;  or  to  the  i  land  ; 

v.  R.  Co.,  20  Neb. 
and  the  mortgagee,  if  not  a  party  to  the 
proceedings,  may  appropriate  the  fund ; 
Sawyer  v.  Landers,  50  la.  422,  'J  N.  W 
Bright  v.  Piatt,  32  N.  J.  Eq. 
the  land  has  been  sold  and  bought  in  by  the 
mortgagee  he  loses  all  claim  to  the  fund  and 
new  proceedings  must  be  taken  to  com 
his  interest;  Lehigh  Coal  &  Nav.  Co.  v.  R. 
Co.,  35  N.  J.  Eq.  379.  As  affecting  the  title 
of  the  appropriator  who  has  been  said  to 
take  no  better  title  than  an  innocent  pur- 
chaser  for  value;  Severin  v.  Cole,  38  la.  403; 
and  must  protect  himself  against  the  claim 
of  the  mortgagee ;  Wooster  v.  R.  Co.,  57  Wis. 
311,  15  N.  W.  401;  the  more  reasonable  opin- 
ion would  seem  to  be  that  the  me 
necessary  party;  if  in  possession  he  certainly 
is;  In  re  Parker,  3G  N.  II.  S4;  Ballard  v.  Bal- 
lard Yale  Co.,  5  Gray  (Mass.)  468;  or  after 
condition  broken;  Adams  v.  R.  R.  Co.,  57  Yt. 
248;  in  other  cases  to  be  bound  he  must 
have  notice;  Siman  v.  Rhoades,  24  Minn.  25; 
Piatt  v.  Bright,  29  N.  J.  Eq.  128:  Warwick 
Institution  for  Savings  v.  City  of  Providence, 
12  R.  I.  144;  Wade  v.  Hennessy,  55  Yt.  207; 
Sherwood  v.  City  of  Lafayette,  109  Ind.  411, 
10  N.  E.  89,  58  Am.  Rep.  414 ;  Wilson  v.  Ry. 
Co.,  67  Me.  35S;  L.  R.  1  Eq.  145;  contra, 
Parish  v.  Gilmanton,  11  N.  II.  293;  Keystone 
Bridge  Co.  v.  Summers.  13  W.  Ya.  470;  Whit- 
ing v.  City  of  New  Haven,  45  Conn.  303; 
Farnsworth  v.  City  of  Boston,  120  Mass.  1  ; 
Read  v.  City  of  Cambridge,  id.  427;  Schu- 
macker  v.  Toberman.  50  Cal.  508;  Bank  of 
Auburn  v.  Roberts,  44  N.  Y.  192.  See  Lewis. 
Em.  Dom.  §  324;  18  L.  R.  A.  113,  note.  It 
was  held  that  the  appropriator  must  see  to 
the  discharge  of  the  mortgage  and  may  pay 
it  off  or  keep  the  money  until  it  is  due ;  In 
re  John  &  Cherry  Sts.,  19  Wend.  (N.  Y.) 
659;  and  he  may  require  or  provide  for  its 
satisfaction:  Devlin  v.  City  of  New  York, 
131  N.  Y.  127,  30  N.  E.  4.",.  It  has  eve!,  been 
held  that  a  mortgagee  cannot  move  for  con- 
sequential damages  to  mortgaged  property 
when  the  mortgagor  has  without  fraud  set- 
tled with  the  company ;  Knoll  v.  Ry.  Co., 
121  Pa.  467,  15  Atl.  571,  1  L.  R.  A.  366. 

Judgment  liens  may  be  divested  by  the 
proceedings,  and  the  creditor  need  not  be 
made  a  party;  Watson  v.  R.  Co.,  47  N.  Y. 
157,  102.  This  is  the  leading  case  and  well 
states  the  reasons  on  which  this  settled  prin- 
ciple is  based.  See  also  Gimbel  v.  Stolte.  59 
Ind.  446;  Bean  v.  Kulp.  7  Phila.  (Pa.  i  650; 
Lewis.  Em.  Dom.  §  325;  Rand.  Em.  Dom.  §§ 
302,  340.  As  to  what  interests  may  be  con- 
demned, see,  further,  supra. 

Xuticc  and  procedure.    It  is  a  general  rule 


EMINENT  DOMAIN 


1034 


EMINENT  DOMAIN 


that  notice  of  proceedings  must  be  given  to 
the  owner  of  property  to  be  taken ;  Lewis, 
Em.  Dom.  §  363;  Rand.  Em.  Dom.  §  333; 
though  a  few  cases  hold  contrary  to  the 
otherwise  uniform  course  of  decisions ;  Wil- 
son v.  It.  Co.,  5  Del.  Ch.  524 ;  George's  Creek 
Coal  &  Iron  Co.  v.  Coal  Co.,  40  Md.  425,  437 ; 
New  Orleans,  J.  &  G.  N.  R.  Co.  v.  Hemphill, 
35  Miss.  17;  Johnson  v.  R.  Co.,  23  111.  202. 
In  the  Delaware  case  there  was  actual  no- 
tice, though  it  was  held  that  the  act  need 
not  require  it;  in  the  Mississippi  case  the 
proceeding  is  considered  as  in  rem,  which  is 
treated  as  actual  notice,  and  the  Illinois  case 
is  in  effect  though  not  expressly  overruled 
in  Wilson  v.  R.  Co.,  59  111.  273,  and  Chicago 
&  A.  R.  Co.  v.  Smith,  78  111.  96.  These  cases 
have  been  termed  "sporadic  decisions,"  by 
which  the  current  of  authority  is  not  dis- 
turbed; Rand.  Em.  Dom.  §  333.  See  Due 
Process  of  Law.  See  also  Lewis,  Em.  Dom. 
§  364 ;  where  the  cases  are  cited,  and,  for 
other  cases  cited  in  support  of  the  view  that 
notice  need  not  be  required  in  the  act;  Peo- 
ple v.  Smith,  21  N.  Y.  595 ;  Harper  v.  R.  Co., 
2  Dana  (,Ky.)  227 ;  Kramer  v.  R.  Co.,  5  Ohio 
St.  140;  Beekman  v.  R.  Co.,  3  Paige  (N.  Y.) 
45,  22  Am.  Dec.  679.  The  questions  whether 
the  property  shall  be  taken  and  what  com- 
pensation shall  be  paid  need  not  be  tried  by 
a  jury ;  Raleigh  &  G.  R.  Co.  v.  Davis,  19  N. 
C.  451 ;  Whiteman's  Ex'x  v.  R.  Co.,  2  Harr. 
(Del.)  514,  33  Am.  Dec.  411;  the  constitution 
does  not  describe  the  mode  or  means  by 
which  compensation  shall  be  ascertained; 
these  therefore  can  only  be  prescribed  by  the 
legislature ;  Wilson  v.  R.  Co.,  5  Del.  Ch.  524 ; 
under  the  constitution  of  the  United  States, 
a  jury  is  not  necessary;  U.  S.  v.  Engerman, 
46  Fed.  176 ;  and  it  cannot  be  demanded  as  a 
matter  of  right;  State  v.  Lyle,  100  N.  C.  497, 
6  S.  E.  379 ;  Backus  v.  Lebanon,  11  N.  H.  19, 
35  Am.  Dec.  406  i  Morris  v.  Heppenheimer, 
54  N.  J.  L.  26S,  23  Atl.  664. 

It  was  recently  held  that  due  process  of 
law  is  furnished  and  equal  protection  of  the 
law  given  in  such  proceedings  when  the 
course  pursued  for  the  assessment  and  col- 
lection of  taxes  is  that  customarily  provid- 
ed in  the  state,  for  then  the  party  charged 
has  an  opportunity  to  be  heard ;  Fallbrook 
Irr.  Dist.  v,  Bradley,  164  U.  S.  112,  17  Sup. 
Ct.  56,  41  L.  Ed.  369 ;  and  where  by  state  law 
a  burden  is  imposed  upon  property  for  the 
public  use,  "whether  it  be  for  the  whole  state 
or  some  more  limited  portion  of  the  com- 
munity, and  those  laws  provide  for  a  mode 
of  confirming  or  contesting  the  charge  thus 
imposed,  in  the  ordinary  courts  of  justice 
with  such  notice  to  the  person,  or  such  pro- 
ceeding in  regard  to  the  property  as  is  ap- 
propriate to  the  nature  of  the  case,  the  judg- 
ment in  such  proceedings  cannot  be  said  to 
deprive  the  owner  of  his  property  without 
due  process  of  law,  however  obnoxious  it 
may  be  to  other  objections;"  id. 


As  to  procedure  generally,  see  Rand.  Em. 
Dom.  ch.  xi. ;  Lewis,  Em.  Dom.  chs.  xvii.- 
xix.  ;  Mills,  Em.  Dom.  ch.  xi. ;  San  Diego 
Land  &  Town  Co.  v.  Neale,  3  L.  R.  A.  83; 
14  A.  &  E.  R.  R.  Cas.  378,  384,  392,  note; 
and  for  some  cases  as  to  the  necessity  of 
notice  and  a  hearing  to  constitute  due  pro- 
cess of  law,  see  2  L.  R.  A.  (Ind.)  655,  note; 
3  L.  R.  A.  (Mont.)  194,  note;  11  L.  R.  A.  224, 
note. 

The  power  need  not  be  exhausted  in  the 
first  instance;  New  York,  H.  &  N.  R.  Co.  v. 
R.  Co.,  36  Conn.  196;  and  a  railroad  may 
subsequently  take  land  for  laying  additional 
tracks  when  necessary ;  Railway  Co.  v.  Pet- 
ty, 57  Ark.  359,  21  S.  W.  884,  20  L.  R.  A. 
434 ;  or  a  canal  company  for  a  new  supply 
of  water;  Proprietors  of  Sudbury  Meadows 
v.  Canal,  23  Pick.  (Mass.)  36;  or  a  company 
may  take  more  than  at  present  required, 
having  view  to  future  and  other  needs,  and 
use  of  part  is  not  an  abandonment;  Pitts- 
burgh, Ft.  W.  &  C.  R.  v.  Peet,  152  Pa.  488, 
25  Atl.  612,  19  L.  R.  A.  467. 

See,  generally,  Mills,  Lewis,  Randolph, 
Nichols,  Eminent  Domain ;  Cooley,  Const. 
Lim.  ch.  xv. ;  Gould,  Waters,  ch.  viii. ;  Red- 
field,  Railways,  Part  3 ;  Wood,  Railways,  ch. 
xiv. ;  Harris,  Damages ;  Thompson,  High- 
ways ;  Police  Power  ;  Taxation  ;  Railroad  ; 
Due  Process  of  Law  ;  Dedication. 

EMISSION.  In  Medical  Jurisprudence. 
The  act  by  which  any  matter  whatever  is 
thrown  from  the  body :  thus,  it  is  usual  to 
say,  emission  of  urine,  emission  of  semen, 
etc. 

Emission  is  not  necessary  in  the  commis- 
sion of  a  rape  to  complete  the  offence ;  1 
Hale,  P.  C.  628;  4  C.  &  P.  249;  9  id.  31; 
Rodgers  v.  State,  30  Tex.  App.  510,  17  S.  W. 
1077 ;  Territory  v.  Edie,  6  N.  M.  555,  30  Pac. 
851 ;  State  v.  Dalton,  106  Mo.  463,  17  S.  W. 
700;  [1891]  2  Q.  B.  149.  It  is,  however,  es- 
sential in  sodomy  ;  12  Co.  36 ;  People  v.  Hodg- 
kin,  94  Mich.  27,  53  N.  W.  794,  34  Am.  St. 
Rep.  321.  But  see  Com.  v.  Thomas,  1  Va. 
Cas.  307.     As  to  adultery,  see  that  title. 

EMIT.    To  put  out;  to  send  forth. 

The  tenth  section  of  the  first  article  of  the  con- 
stitution contains  various  prohibitions,  among  which 
is  the  following:  "No  state  shall  emit  bills  of  cred- 
it." To  emit  bills  of  credit  is  to  issue  paper  intend- 
ed to  circulate  through  the  community  for  its  ordi- 
nary purposes,  as  money,  which  paper  is  redeemable 
at  a  future  day.  Craig  v.  Missouri,  4  Pet.  (U.  S.) 
410,  432,  7  L.  Ed.  903  ;  Briscoe  v.  Bank,  11  Pet.  (U. 
S.)  257,  9  L..  Ed.  709  ;  Ramsey  v.  Cox,  28  Ark.  369  ; 
Linn  v.  Bank,  1  Scam.  (111.)  87,  25  Am.  Dec.  71; 
Story,  Const.  §  1358.     See  Bills  of  Credit. 

EMMENAG0GUES.  In  Medical  Jurispru- 
dence. The  name  of  a  class  of  medicines 
which  are  believed  to  have  the  power  of  fa- 
voring the  discharge  of  the  menses.  These 
are  "savine  (see  Juniperus  Sabina),  black 
hellebore,  aloes,  gamboge,  rue,  madder,  stink- 
ing goosefoot  (cheno  podium  olidumj,  gin, 
parsley  (and  its  active  principle,  apiol),  per- 


EMM1  XAGOGUES 


1035 


EMPLAZAMI  ■ 


manganate  of  potassium,  cantharides,  and 
buni.r,  and  for  the  most  part  substances 
whir]],  in  large  doses,  act  as  drastic  purga- 
tives or  stimulating  diuretics."  They  are 
sometimes  used  for  the  criminal  purpose  of 
producing  abortion  (q.  v.).  They  always  en- 
danger  the  life  of  the  woman,  l  Beck,  Med. 
Jur.  31G;  Dunglison,  Med.  Diet.;  Parr,  Med. 
Diet;  3  Par.  &  F.  Med.  Jur.  88;  Taylor's 
Mod.  Jur.  184. 

EMOLUMENT.  The  profit  arising  from 
office  or  employment ;  that  which  is  received 
as  a  compensation  for  services,  or  which  is 
annexed  to  the  possession  of  office  as  salary, 
fees,  and  perquisites;  advantage;  gain,  pub- 
lic or  private.  Webster,  it  Imports  any  per- 
quisite, advantage,  profit  or  gain  a 
from  the  possession  of  an  office.  Apple  v. 
Crawford  County,  105  Pa.  P.O.0.,  51  Am.  Pop. 
205.  See  Peeling  v.  County  of  York,  113  Pa. 
108,  5  Atl.  67. 

EMOTIONAL   INSANITY.       See  Insanity. 

EMPANEL.     See   Impanel;  Jury. 

EMPEROR.  This  word  is  synonymous 
with  the  Latin  imperator:  they  are  both  de- 
rived from  the  verb  knperare.  Literally,  it 
signifies  he  who  commands. 

EMPHYTEUSIS.  In  Civil  Law.  The  name 
of  a  contract,  in  the  nature  of  a  perpetual 
lease,  by  which  the  owner  of  an  uncultivat- 
ed piece  of  land  granted  it  to  another,  ei- 
ther in  perpetuity  or  for  a  long  time,  on  con- 
dition that  he  should  improve  it,  by  building 
on,  planting,  or  cultivating  it,  and  should 
pay  for  it  an  annual  rent,  with  a  right  to  the 
grantee  to  alienate  it,  or  transmit  it  by  de- 
scent to  his  heirs,  and  under  a  condition  that 
the  grantor  should  never  re-enter  as  long  as 
the  rent  should  be  paid  to  him  by  the  gran- 
tee or  his  assigns.  Inst  3,  25,  3;  18  Toul- 
lier,  n.  144. 

EMPHYTEUTA.  The  grantee  under  a 
contract  of  emphyteusis  or  empfnitcosis. 
Vicat,  Voc.  Jur. ;  Calvinus,  Lex. ;  1  Ilallam, 
c.  ii.  p.  1. 

EMPIRE  (Lat.  Imperii)  in).  Supreme 
power  in  governing;  imperial  power;  domin- 
ion ;  sovereignty. 

The  country,  region,  or  union  of  states  or 
territories  under  the  dominion  of  an  emper- 
or.    Cent.  Diet. 

It  was  in  the  sense  of  the  first  of  these 
definitions  that  Chief  Justice  Marshall  is 
said  to  have  at  one  time  used  the  phrase 
"the  American  Empire."  See  Downes  v.  Bid- 
well,  182  U.  S.  279,  21  Sup.  Ct.  770.  45  L. 
Ed.  1088. 

It  is  used  on  a  tablet  over  the  door  of  the 
old  Friends'  Library  at  Philadelphia:  "The 
Fourth  Year  of  the  Empire." 

EMPLAZAMIENTO.  In  Spanish  Law. 
The  citation  given  to  a  person  by  order  of 


the  judge,   and   ordering  him   to  appear  be- 
fore his  tribunal  on  a  gi  hour. 

EMPLOYE    or    EMPLOYEE.  a    of 

rather    broad    signification    for   one   who   is 
employed,  whether  his  dutii      are  with 
without  the  walls  of  the  building  in  which 
the  chief  officer  usually  transacts  his 
ness.     MaUory  v.  r.  S.,  3  Ct  CI.  257; 
v.   I'.  S.f  3  Ct.  CI.  200.     It  is  nut  usually  ap- 
plied   to   higher  officers  of  corporatio 
o.  domestic  servants,  but  to  clerks,  workmen, 
and  laborers,  collectively. 

Strictly  and  etymologically,  it-  means  "a 
person  employed,"  but  in  practice,  in  the 
French  language,  it  ordinarily  is  used  to  sig- 
nify a  person  in  some  official  employment, 
and  as  generally  used  with  us,  though  per- 
haps not  confined  to  any  official  employment, 
it  is  understood  to  mean  some  permanent 
ployment  or  position.  It  may  be  any  one 
who  renders  service  to  another;  Watson  v. 
Mil'.  Co.,  30  N.  J.  Eq.  588;  and  has  been  ex- 
tended so  far  as  to  embrace  attorney  and 
counsel;  Gurney  v.  Ry.  Co.,  58  X.  Y.  358. 
The  servant  of  a  contractor  for  carrying 
mail  is  an  employe  of  the  department  of  the 
post-office;  U.  S.  v.  Belew,  2  Brock.  280,  Fed. 
Cas.  No.  14,563;  also  one  who  received  five 
per  cent,  of  the  cost  for  superintending  the 
erection  of  a  warehouse  was  held  an  em- 
ploy,'.; Moore  v.  Hoaney,  14  Md.  558.  See 
Master  am>  S;  bvant. 

EMPLOYED.  The  act  of  doing  a  thing, 
and  the  being  under  contract  or  orders  to 
do  it  U.  S.  v.  Morris,  14  Pet.  (U.  S.)  464, 
47o,  10  L.  Ed.  ;j4.",  ;  IJ.  S.  v.  The  Catherine, 
2  Paine  721,  Fed.  Cas.  No.  11.7."..".. 

Where  persons  were  employed  "in  and 
about  the  works."  it  was  laid  that  although 
their  work  as  miners  was  at  the  bottom  of 
a  mine,  the  term  covered  them  as  employes 
until  they  arrived  safely  at  the  top,  even  al- 
though they  discharged  themselves;  2  O.  P. 
Div.  397. 

EMPLOYERS  AND  WORKMEN  ACT. 
The  English  statute  of  38  and  ":>  Vict  c.  90, 
regulating  the  Jurisdiction  of  certain  courts 
over  disputes  bet  ween  masters  and  employes. 
See  Master  and  Servant. 

EMPLOYERS'     LIABILITY    ACTS.        The 

English   act,    1SS0,   gives  p.  all  workmen,   ex- 
cept   domestic   or    menial    servants    and    s.-a- 
men,    a    right   of  action   if  injured   by    i 
of  the  defeel Ive  condition  of  machinery,  etc.,  if 
the  defeel   was  attributable  to  the  uegli] 

of  the  employer  or  his  agent;  to  the  negli- 
gence of  his  superintendent  or  one  to  whom 

he  has  given  authority  over  the  workman: 
to  some  actor  omission  by  a  fellow  workman 
in  obedience  to  the  employers  by-laws,  or 
to  the  particular  Instruction  of  one  p 
in  authority  over  him;  or  to  a  fellow  work- 
man in  charge  of  any  railroad  signal,  loco- 
motive or  train.  The  act  abolishes  the  fel- 
low  servant    rule,   but   not   the   contributory 


EMPLOYERS'  LIABILITY  ACTS      1036       EMPLOYERS'  LIABILITY  ACTS 


negligence  rule.  The  employer  may  set  up 
1  the  defence  that  the  workman  knew  of  the 
defect  but  did  not  complain.  A  contract  not 
to  claim  compensation  under  the  act  is  law- 
ful ;  Griffiths  v.  Earl  of  Dudley,  9  Q.  B.  D. 
357. 

The  act  of  congress  of  June  11,  1906,  was 
declared  unconstitutional  in  the  Employers' 
Liability  Case  (Howard  v.  R.  Co.)  207  U.  S. 
403,  28  Sup.  Ct.  141,  52  L.  Ed.  297,  Harlan, 
Holmes,  Moody,  and  Lurton,  J  J.,  dissenting. 
The  act  of  April  22,  190S,  as  amended  April 
5,  1910,  provides  for  the  liability  of  common 
carriers  engaged  in  interstate  or  foreign 
commerce  to  their  employees  injured  in  such 
commerce,  or  in  case  of  death  gives  a  right 
of  action  to  their  personal  representatives 
for  the  benefit  of  the  surviving  widow  or 
husband  and  children  of  such  employee,  and 
if  none,  then  of  such  employee's  parents,  and 
if  none,  then  of  the  next  of  kin  depend- 
ent upon  such  employee.  There  shall  be 
only  one  recovery  for  the  same  injury;  St. 
Louis,  I.  M.  &  S.  Ry.  Co.  v.  Hesterly,  228  U. 

S.  702,   33   Sup.   Ct.  703,  57  L.  Ed.  .     It 

does  away  with  the  fellow  servant  rule,  the 
contributory  negligence  rule,  except  that 
damages  shall  be  diminished  in  proportion 
to  the  amount  of  contributory  negligence  at- 
tributable to  the  employee,  and  the  rule 
that  an  employee  is  held  to  have  assumed 
the  risk  of  his  employment  in  any  case  where 
the  violation,  by  the  carrier,  of  any  statute 
enacted  for  the  safety  of  employees  contrib- 
uted to  the  injury  or  death  of  such  employee. 
Acceptance  of  relief,  such  as  railway  relief, 
is  no  bar  to  an  action  though  agreed  to,  but 
simply  reduces  the  damages  pro  tanto. 

The  following  cases  define  what  is  inter- 
state commerce  within  the  act.  In  Johnson 
v.  Great  Northern  R.  R.  Co.,  178  Fed.  G43, 
102  C.  C.  A.  89  (8th  Cir.),  it  was  held  that 
an  employee  charged  with  the  duty  of  cou- 
pling cars  and  airbrake  pipes  upon  cars 
standing  upon  a  switch  track,  some  of  which 
cars  were  engaged  in  interstate  commerce, 
was  himself  employed  in  interstate  com- 
merce. In  Zikos  v.  Navigation  Co.,  179  Fed. 
893  (C.  C,  E.  D.  Wash.),  it  was  held  that  a 
section  hand,  while  driving  a  spike  on  the 
track  of  a  railroad  over  which  both  inter- 
state and  intrastate  commerce  moved,  was 
employed  in.  interstate  commerce.  In  Cen- 
tral R.  Co.  of  New  Jersey  v.  Colasurdo,  192 
Fed.  901,  113  C.  C.  A.  379  (2d  Cir.),  where 
the  plaintiff  was  injured  while  repairing  an 
interstate  road  over  which  interstate  com- 
merce and  freight,  and  cars  and  engines  en- 
gaged in  interstate  commerce  were  constant- 
ly passing,  he  was  considered  as  being  en- 
gaged in  interstate  commerce.  In  Pedersen 
v.  R.  Co.,  197  Fed.  537,  117  C.  C.  A.  33  (3d 
Cir.),  the  plaintiff  was  an  iron  worker  on  a 
bridge  on  which  an  additional  track  was  be- 
ing placed.  In  getting  rivets  for  the  bridge 
he  went  upon  the  main  east-bound  track  of 
the  road,  where  he  was  struck  and  injured 


by  a  local,  intrastate  train  coming  from  the 
other  direction ;  and  it  was  held  that  neither 
by  operating  such  local  train,  nor  by  build- 
ing an  additional  track  or  bridge,  nor  by 
sending  the  man  for  the  rivets,  was  the  car- 
rier engaged  in  interstate  commerce ;  nor 
was  the  plaintiff,  by  helping  to  build  such 
bridge  or  by  going  upon  a  track  which  the 
company  was  not  using  in  interstate  com- 
merce employed  by  such  carrier  in  such  com- 
merce. The  case  was  reversed  in  Pedersen 
v.  R.  Co.,  229  U.  S.  146,  33  Sup.  Ct.  648,  57 
L.  Ed.  1125,  Holmes,  Lamar  and  Lurton,  JJ., 
dissenting.  The  court  held  there  was  evi- 
dence to  sustain  a  finding  that  at  the  time  of 
the  injury  the  defendant  was  engaged,  and 
the  plaintiff  was  employed  by  it,  in  inter- 
state commerce.  In  Illinois  Cent.  R.  Co.  v. 
Porter,  207  Fed.  311  (C.  C.  A.,  6th  Cir.)  a 
truckman  employed  by  the  railroad  to  wheel 
interstate  freight  from  a  warehouse  into  a 
car  to  be  transported  in  interstate  commerce 
was  held  to  be  engaged  in  such  commerce. 

An  action  cannot  be  maintained  under  sec- 
tion 1  of  the  above  act  where  the  complain- 
ant neither  alleges  nor  pleads  facts  showing 
that  defendant  is  a  common  carrier;  Shade  v. 
Northern  Pac.  R.  Co.,  206  Fed.  353  (D.  C, 
W.  D.  Wash.).  Where  a  train  of  cars  was 
hauled  by  a  switch  engine  over  certain  tracks 
and  switches  from  one  part  of  the  railroad 
yard  to  another,  that  they  might  be  classi- 
fied, inspected,  and  assembled,  they  were 
not  engaged  in  interstate  commerce;  U.  S. 
v.  R.  Co.,  205  Fed.  428  (D.  C,  W.  D.  N.  Y.). 
A  workman,  killed  while  employed  by  a  rail- 
road company  engaged  in  interstate  com- 
merce in  repairing  a  bridge  on  a  line  over 
which  such  commerce  was  carried  on,  was 
held  to  be  employed  in  interstate  commerce ; 
Thomson  v.  R.  Co.,  205  Fed.  203. 

A  locomotive  fireman  in  the  employment 
of  an  interstate  railroad,  who  was  ordered 
to  report  at  a  station  to  be  transported  with 
others  to  another  station  to  relieve  the  crew 
of  an  interstate  train,  and  who,  when  ap- 
proaching the  station  over  a  crossing,  was 
struck  and  killed  through  the  negligence  of 
other  servants  of  the  company  also  operat- 
ing an  interstate  train,  was  within  the  act; 
Lamphere  v.  Oregon  R.  &  Nav.  Co.,  196  Fed. 
336,  116  C.  C.  A.  156  (9th  Cir.).  So  of  one 
injured  when  employed  in  repair  shops  con- 
nected with  an  interstate  track,  in  repairing 
a  car  used  indiscriminately  in  both  inter- 
state and  intrastate  commerce,  but  which 
was  at  the  time  engaged  in  interstate  com- 
merce; Northern  Pac.  R.  Co.  v.  Maerkl,  198 
Fed.  1,  117  C.  C.  A.  237  (9th  Cir.).  The  judg- 
ment in  the  Pedersen  Case,  supra,  will 
doubtless  affect  some  of  these  decisions  in 
lower  courts. 

The  following  cases  were  held  not  within 
act:  Bennett  v.  R.  Co.,  197  Fed.  578  "(D.  C, 
E.  D.  Pa.),  where  an  employee  was  killed 
while  riding  to  his  home  by  permission  on 
one  of   the  company's  trains,   but  who  was 

/ 


EMPLOYERS'  LIABILITY  ACTS  1037       EMPLOYERS'   LIABILITY  ACTS 


not  at  the  time,  and,  so  far  as  appeared, 
bad  not  just  previously  been,  employed  In 
interstate  commerce,  was  not  within  the  act; 
Heimbach  v.  R.  Co.,  197  Fed.  579  (D.  0.,  B. 
I).  Pa.)  ;  where  an  employee,  who  was  in- 
jured while  repairing  a  ear  of  another  com- 
pany which  had  reached  the  end  of  its  run. 
been  unloaded,  and  was  lying  at  a  station 
awaiting  orders,  was  not  within  the  ad  \ 
F. ■aster  v.  R.  Co.,  197  Fed.  5S0  (D.  C,  E.  D. 
Pa.);  and  where  an  extra  conductor,  direct- 
ed, on  reporting  for  work,  to  ride  to  another 
point  within  the  same  state  for  service  on  a 
work  train,  and  who  was  injured  while  pro- 
ceeding to  his  train,  was  not  at  the  time  em- 
ployed in  interstate  commerce;  Taylor  v. 
So.  R.  Co.,  ITS  Fed.  3S0'(C.  C,  N.  D.  Ga.), 
where  a  member  of  a  bridge  gang  who  was 
injured  while  repairing  a  bridge  forming  a 
most  necessary  part  of  the  track  of  a  rail- 
road used  for  hoth  int(  estate  and  intrastate 
commerce,  was  not  within  the  act. 

A  fireman  on  a  switch  engine  which  was 
ordinarily  employed  in  interstate  commerce, 
though  mingled  with  intrastate  commerce, 
was  held  engaged  in  interstate  commerce; 
Behrens  v.  R.  Co.,  102  Fed.  581  (D.  C,  E.  D. 
La.).  Where  a  railroad  brakeman  was  in- 
jured while  engaged  in  making  a  flying 
switch  to  set  out  a  car  transported  wholly 
in  intrastate  traflic,  though  it  was  part  of  a 
train  carrying  both  interstate  and  intrastate 
freight,  his  injury  did  not  occur  while  en- 
gaged in  interstate  commerce;  Van  Brim- 
mer v.  Ry.  Co.,  190  Fed.  394  (C.  C,  E.  D. 
Tex.).  The  causal  negligence  of  a  co-em- 
ployee may  be  that  of  one  not  engaged  in 
interstate  commerce ;  In  re  Second  Employ- 
ers' Liability  Cases.  223  U.  S.  1,  32  Sup.  Ct. 
1G9,  50  L.  Ed.  327,  38  L.  R.  A.    (N.  S.)  44. 

A  Workman's  Compensation  Act  was  pass- 
ed in  England  in  1807.  It  provides  that  in 
certain  trades  and  works  the  employer  shall 
be  liable  to  compensate  any  workman  Injur- 
ed by  an  accident  in  the  course  of  his  em- 
ployment, whether  the  employer  or  any  of 
bis  subordinates  had  been  guilty  of  negli- 
gence or  had  committed  any  breach  of  duty 
or  not.  This  act  was  repealed  in  190G,  by 
an  act  which  provides  for  compensation  for 
injury  from  any  accident  in  the  course  of 
employment  unless  attributable  to  the  seri- 
ous or  willful  misconduct  of  the  workman. 
but  this  exception  does  not  extend  to  injury 
resulting  in  death  or  serious  and  permanent 
disablement.  Compensation  can  also  be 
claimed  by  one  who  has  suffered  from  cer- 
tain specified  "industrial  diseases";  on  the 
event  of  his  death,  his  dependants  may 
claim.  The  utmost  amount  recoverable  is 
one  pound  a  week  during  total  incapacity  to 
work  or  three  hundred  pounds  in  case  of 
death.  Contributory  negligence  is  no  de- 
fence, nor  the  voluntary  assumption  of  a 
Known  risk,  nor  the  negligence  of  a  fellow 
servant     Where  a  principal  has  engaged  a 


contractor  for  the  work,  the  act  makes  the 
principal    liable    for    compensation    air 
there  is  no  din    I    relation  between  him  and 
t!ii-  Injured    workman. 

A  workman  Injured  in  the  course  of  his 
employment  has  three  diffi  f  pro- 

cedure open  to  him  :  He  may  sue  for  da 
at    common    law;    he   may    sue    for    dai 
under  the  Employers'  Liability  Act  of  1880; 
or   he    may    claim    compensation    under  the 
Workman's  Compensation  Act  of  1906.     ru- 
der the  Act  of  1906,  disputed  questioi 
settled  by  arbitration  in  the  County  Courts. 
Se..  Odgers  C.  L.  854. 

Workmen's  Compensation  Acts  were 
ed  in  1011  in  New  Jersey,  California,  Wiscon- 
sin, Kansas  and  Nevada,  and  in  1012  in  Illi- 
nois. Michigan,  Arizona,  New  Hampshire  and 
Rhode  Island.  Under  such  acts  the  em; 
is  liable  for  the  compensations  to  Injured 
workmen.  The  only  negligence  recognized 
on  the  part  of  either  the  employer  or  the 
employi  bag  generally,  is  that  of  will- 

ful negligence.  If  the  employer  is  guilty  of 
such  he  is  penalized;  if  the  employee  Is,  then 
his  compensation  is  denied  or  reduced.  The 
amount  of  the  compensation  is  determined 
with  a  maximum  and  minimum  limit  by 
specified  schedules  of  compensation  and  grad- 
ed on  a  basis  of  a  certain  percentage  of  the 
loss  or  impairment  of  the  injured  worker's 
average  weekly  wage.  Jury  trials  are  large- 
ly eliminated  and  the  compensation  to  which 
the  injured  worker  is  entitled  under  the  act 
is  determined  by  a  board  of  arbitration,  a 
judge  of  some  court  or  a  board  of  awards 
created  as  specified  by  the  act 

Workmen's  Industrial  Insurance  Acts  were 
passed  in  1011  in  Washington,  in  1912  in 
Massachusetts,  Maryland  and  Ohio,  and  in 
1913  in  West  Virginia. 

The  injured  workman's  claim  under  a 
state  insurance  act  is  against  a  fund  en 
by  contributions  paid  by  employers,  employ- 
ees and  the  state  or  by  any  of  them,  in  the 
form  of  an  insurance  premium  which  is  col- 
lected by  the  taxing  power  of  the  state 
through  the  exercise  of  its  police  power. 
The  employers  liability  to  his  employees  for 
personal  injuries  occurring  in  the  course  of 
their  employment  is  discharged  when  be  has 
paid  the  premium  as  provided  by  the  act. 
The  right  of  trial  by  jury  is  entirely  elim- 
inated in  such  cases,  excepting  the  case 
where  the  employee  is  denied  coir: 
tion  of  any  kind,  and  In  that  case  he  may 
sue  the  board  of  administration  created  by 
the  act  and  have  his  case  tried  before 
a  jury  as  heretofore,  but  cannot  sue  bis  em- 
ployer. No  negligence  is  recognized  except- 
ing willful  negligence  on  the  part  of  either. 
The  compensation  is  paid  in  Installments 
based  upon  a  certain  percentage — usually  50 
to  GO  per  cent — of  the  impairment  of  wages 
caused  by  the  injury.  The  act  usually  fixes 
the  length  of  time  that  such  compensation 


EMPLOYERS'  LIABILITY   ACTS     1038    EN  DECLARATION  DE  SIMULATION 


may  run,  and  also  a  maximum  and  minimum 
total  compensation.  In  the  enactment  of 
these  statutes  the  state  exercises  its  police 
power  for  the  protection  of  the  peace,  safety 
and  general  welfare  of  the  public. 

The  following  states  have  by  statute  abro- 
gated the  fellow  servant  rule  either  general- 
ly or  in  particular  industries :  Arkansas, 
Colorado,  Florida,  Georgia,  Iowa,  Kansas, 
Minnesota,  Missouri,  Montana,  Nebraska, 
Nevada,  North  Carolina,  North  Dakota, 
Oklahoma,  South  Dakota,  Texas,  Wisconsin. 

In  the  following  states  the  rule  is  modified : 
California,  Mississippi,  Maryland,  Ohio,  Ore- 
gon, South  Carolina,  Utah,  Virginia. 

See  Master  and  Servant;  Negligence; 
Death  ;  Workmen's  Compensation  Acts. 

Compensation  Acts  were  passed  by  con- 
gress May  30,  1908,  March  4,  1911,  and 
March  11,  1912,  providing  that  artisans  or 
laborers  engaged  in  any  of  the  government 
manufacturing  establishments,  arsenals  or 
navy-yards,  or  in  the  construction  of  river 
and  harbor  or  fortification  work,  or  in  haz- 
ardous employment  or  construction  work  in 
the  reclamation  of  arid  lands  or  the  manage- 
ment or  control  of  the  same,  or  in  hazard- 
ous employment  under  the  Isthmian  Canal 
Commission,  or  in  any  hazardous  work  un- 
der the  Bureau  of  Mines  or  Forestry  Service 
shall  receive  compensation  from  the  govern- 
ment for  injuries  sustained  in  the  course  of 
their  employment,  and  if  the  employee  should 
die  by  reason  of  such  injury  then  bis  widow 
or  children  under  sixteen,  or  a  dependent 
parent  shall  be  entitled  to  receive  as  compen- 
sation the  same  pay  for  one  year  as  if  he 
continued  to  be  employed,  unless  if  only  in- 
jured he  sooner  be  able  to  resume  work. 

EMPLOYMENT  AGENCY.  A  municipal 
ordinance  licensing  and  regulating  employ- 
ment agencies  is  a  valid  exercise  of  the 
police  power ;  People  v.  Warden  of  City  Pris- 
on of  City,  183  N.  Y.  223,  76  N.  E.  11,  2  L. 
R.  A.  (N.  S.)  859,  5  Ann.  Cas.  325;  Price  v. 
People,  193  111.  114,  61  N.  E.  844,  55  L.  R.  A. 
588,  86  Am.  St.  Rep.  306.  The  Illinois  act 
was  held  void  because  forbidding  a  free  em- 
ployment agency  to  furnish  help  to  persons 
whose  employees  were  on  a  strike  or  locked 
out,  or  to  refuse  them  access  to  the  names  of 
applicants  for  service,  wbilst  allowing  this 
privilege  to  other  employers;  Mathews  v. 
People,  202  111.  389,  67  N.  E.  28,  63  L.  R.  A. 
73,  95  Am.  St.   Rep.  241. 

EMPRESTITO.  In  Spanish  Law.  A  loan. 
Something  lent  to  the  borrower  at  his  re- 
quest.    Las  Partidas,  pt.  3,  tit.  18,  1.  70. 

E MPT  10,  EMPTOR  (Lat.  emere,  to  buy). 
Emptio,  a  buying.  Emptor,  a  buyer.  Emp- 
tio et  venditio,  buying  and  selling. 

In  Roman  Law.  The  name  of  a  contract 
of  sale.     Du  Cange;  Vicat,  Voc.  Jur. 

EN  AUTRE  DROIT  (Fr.).  In  the  right  of 
another. 


EN  DECLARATION  DE  SIMULATION. 
A  form  of  action  used  in  Louisiana.  It  is 
one  of  revendication  (q.  v.),  and  has  for  its 
object  to  have  the  contract  declared  judicial- 
ly a  simulation  and  a  nullity  ;  Envin  v.  Bank, 
5  La.  Ann.  1;  Edwards  v.  Ballard,  20  La. 
Ann.  169. 

EN  DEMEURE  (Fr.).  In  default.  Used 
in  Louisiana.  Bryan  v.  Cox,  3  Mart.  La. 
(N.  S.)   574. 

EN  0WEL  MAIN  (L.  Fr.).  In  equal 
hand.  The  word  oiocl  occurs  also  in  the 
phrase  owelty  of  partition.  See  1  Washb. 
R.  P.  427. 

EN  VENTRE  SA  MERE  (Fr.).  In  its 
mother's  womb.  For  certain  purposes,  in- 
deed for  all  beneficial  purposes,  a  child  en 
ventre  sa  mere  is  to  be  considered  as  born ; 
5  T.  R.  49 ;  1  P.  Wms.  329.  It  is  regarded  as 
in  esse  for  all  purposes  beneficial  to  itself, 
but  not  to  another;  Marsellis  v.  Thalhimer, 
2  Paige  (N.  Y.)  35,  21  Am.  Dec.  66;  Gillespie 
v.  Nabors,  59  Ala.  441,  31  Am.  Rep.  20 ;  [1908] 
1  Ch.  4;  [1907]  A.  C.  139.  Formerly  this 
rule  would  not  be  applied  if  the  child's  in- 
terests would  be  injured  thereby;  2  De  G., 
J.  &  S.  665 ;  but,  for  the  purpose  of  the  rule 
against  perpetuities,  such  a  child  is  now  re- 
garded as  a  life  in  being,  even  though  it  is 
prejudiced  by  being  considered  as  born ; 
[1903]  1  Ch.  894;  [1907]  A.  C.  139.  Its  civil 
rights  are  equally  respected  at  every  period 
of  gestation;  it  is  capable  of  taking  under  a 
will,  by  descent,  or  under  a  marriage  settle- 
ment, may  be  appointed  executor,  may  have 
a  guardian  assigned  to  it,  may  obtain  an  in- 
junction to  stay  waste ;  Stedf ast  v.  Nicoll,  3 
Johns.  Cas.  (N.  Y.)  18;  Swift  v.  Duffield,  5 
S.  &  R.  (Pa.)  38;  1  Ves.  81;  2  Atk.  117; 
Bacon,  Abr.  Infancy  (B) ;  2  H.  Bla.  399;  2 
Vera.  710 ;  4  Ves.  Jr.  227.  Such  a  child  is  to 
be  considered  as  living  so  as  to  vest  in  the 
parent  on  the  death  of  the  life  tenant  a  de- 
vise made  by  a  testator  to  A  for  life,  and 
on  her  death  to  the  parent  of  the  child,  "for 
her  absolute  use  and  benefit  in  case  she  has 
issue  living  at  the  death"  of  A,  "but  in  case 
she  has  no  issue  then  living,"  then  over, 
when  the  parent  was  enceinte  at  the  time  of 
A's  death ;  [1895]  2  Ch.  497.  The  right  of  an 
unborn  infant  to  take  property  by  descent 
or  otherwise  has  been  said  to  be  an  inchoate 
right,  which  will  not  be  completed  by  a  pre- 
mature birth ;  1  Sharsw.  Bla.  Com.  130,  n. ; 
but  as  the  word  premature  is  used  in  the 
authorities,  the  rule  accurately  stated  is 
that  it  must  be  born  alive  or  after  such  pe- 
riod of  foetal  existence  that  it  might  reason- 
ably be  expected  to  survive ;  Harper  v.  Arch- 
er, 4  Smedes  &  M.  (Miss.)  99,  43  Am.  Dec.  472 ; 
Swift  v.  Duffield,  5  S.  &  R.  (Pa.)  3S;  4  Kent 
248;  Marsellis  v.  Thalhimer,  2  Paige  (N.  Y.) 
35,  21  Am.  Dec.  66. 

A  bastard  en  ventre  sa  mere  is  not  regard- 
ed as  in  esse  because,  as  it  was  said,  such 


EN  VENTRE  SA  MERE 


1030 


ENACT 


child  could  not  take  "until  they  have  gained 
a  name  by  reputation"  and  "that  reputation 
could  not  be  gained  before  the  child  was 
born";  1  P.  Wins.  529;  but  in  a  case  decided 
long  afterwards  Lord  Eldon  (with  win  mi, 
he  stated,  Sir  William  Grant  concurred)  held 
that  a  bequest  to  an  Illegitimate  child  en 
ventre  sa  mere  was  valid  if  there  were  a 
sufficient  description  to  identify  it;  l  Mer. 
141  ;  and  the  court  of  appeal  followed  this 
(though  with  Selbome,  L.  C.  dissenting)  :  9 
Ch.  App.  117,  which  case  was  followed  in 
[1900]  1  Ch.  542,  and  [1905]  P.  137.  The 
question  whether  an  illegitimate  child  en 
ventre  sa  mere  at  the  testator's  death,  but 
not  when  his  will  was  made,  might  take  as 
his  reputed  child,  was  left  undecided;  31 
Ch.  D.  5-12;  and  a  bequest  to  an  illegitimate 
child  en  ventre  sa  mere  at  the  date  of  the 
will  was  held  good  and  not  contrary  to  pub- 
lic policy;  3  Ch.  D.  773.  These  quest  inns 
derive  special  interest  in  England  because 
they  frequently  arise  in  case  of  marriages 
with  a  deceased  wife's  sister. 

Such  unborn  child  may  have  an  injunction 
to  stay  waste,  have  a  guardian,  and  take 
under  a  charge  of  a  portion,  or  be  executor; 
2  Ves.  Jr.  319;  but  it  is  held  that  an  infant 
may  not  recover  damages  for  injuries  receiv- 
ed before  its  birth ;  Dietrich  v.  Northampton, 
138  Mass.  14,  52  Am.  Rep.  212. 

See  an  elaborate  article  on  unborn  infants, 
action  by,  when  they  take,  conveyance  to,  de- 
gree of  development  necessary  and  rights  of 
action  in  detail;  01  C.  L.  J.  304.  And  see 
Tyler,  Inf.  &  Cov.  ch.  xiv.;  21  llarv.  L.  Rev. 
300 ;  Postiiumous  Child  ;  Fcetus  ;  Negli- 
gence ;   Unborn  Child. 

ENABLE.  To  give  power  to  do  something. 
In  the  case  of  a  person  under  disability  as 
to  dealing  with  another,  "enable"  has  the 
primary  meaning  of  removing  that  disabili- 
ty; not  of  conferring  a  compulsory  power  :is 
against  that  other;  00  L.  J.  Ch.  208;  [1897] 
A.  C.  047. 

ENABLING  POWERS.  A  term  used  in 
equity.  When  the  donor  of  a  power,  who  is 
the  owner  of  the  estate,  confers  upon  per- 
sons not  seised  of  the  fee  the  right  of  creat- 
ing interests  to  take  effect  out  of  it.  which 
could  not  be  done  by  the  donee  of  the  power 
unless  by  such  authority,  this  is  called  an 
enabling  power. 

ENABLING  STATUTE.  The  act  of  32 
Henry  VIII.  c.  28,  by  which  tenants  in  tail. 
husbands  seised  in  right  of  their  wives,  and 
others,  were  empowered  to  make  Leases  for 
their  lives  or  for  21  years,  which  they  could 
not  do  before.  2  Bla.  Com.  319;  To.  Litt 
44  a.  The  phrase  is  also  applied  to  any  stat- 
.  ute  enabling  persons  or  corporations  to  do 
what  before  they  could  not. 

As  to  enabling  acts  of  territories,  see  Ter- 
ritory. 


ENACT.  To  establish  by  law:  to  perform 
or  effect;   to  decree.     The  usual  formula  in 

(ute  is,  /;.    it 

ENAJENACI0N.  In  Spanish  Law.  The 
act    by    which   one    person    t.  to    an- 

other a  property,  either  -  tuitou  y,  as  in 
the  case  of  a  donation,  or  by  an  owner's  ti- 
tle, as  in  the  case  of  a  sale  or  an 

In    Mexican    Law.        This   v..  1    in 

conveyancing  to  convey  the  fee,  and  not  a 
mere  servitude  upon  the  land.  Mulford  v. 
Le  Franc,  '^;  CaL  88. 

ENCEINTE    (Ft.).     Pregnant.      See    1 
NANCY. 

ENCLOSURE.  An  artificial  fence  around 
one's  estate.  Keith  v.  Bradford,  '■:'■>  vt.  :;  i; 
Porter  v.  Aldrich,  39  Vt.  320;  Taylor  v.  Wel- 
bey,  30  Wis.  42.    See  Close. 

ENC0MIENDA.  A  charge  or  mandate 
conferring  certain  important  privileges  on 
the  four  military  orders  of  Spain,  to  wit, 
those  of  Santiago,  Calatrava,  Alcantara,  and 
Montesa.  In  the  legislation  of  the  Indias,  it 
signilied  the  concession  of  a  certain  number 
of  Indians  for  the  purpose  of  instructing 
them  in  the  Christian  religion  and  defending 
their  persons  and  property. 

ENCOURAGE.  To  intimate,  to  incite  to 
anything,  to  give  courage  to,  to  inspirit,  to 
embolden,  to  raise  contidence,  to  make  con- 
fident.    7  Q.  B.  Div.  258. 

ENCROACH.  To  gain  unlawfully  upon  the 
lands,  property,  or  authority  of  another':  as  if 
one  man  presseth  upon  the  grounds  of  another 
too  far,  or  if  a  tenant  owe  two  shillings  rent- 
service  and  the  lord  exact  three.  So,  too,  the 
Spencers  were  said  to  encroach  the  king's  au- 
thority. Blount;  Plowd.  94a.  Quite  a  mem- 
orable instance  of  punishment  for  encroach- 
ing (accroaching)  royal  power  took  place  in 
21  Edw.  III.  1  Hale.  PI.  Or.  80.  Takii 
by  clerks  of  the  courts  has  been  held  en- 
croaching ;   1  Leon.  5. 

ENCUMBRANCE.      See   IWCUMBBANC*. 

ENDORSE.     See  Indou-:    :i  m. 

ENDOWMENT.  Now  generally  used  of  a 
permanent  provision  for  any  public  • 
as  a  school  or  hospital.  By  the  endowment 
of  such  institutions  is  commonly  undei 
not  the  building  or  providing  sites  for  them, 
but  the  providing  of  a  fixed  revenue  for  their 
support,  -jr.  1..  .1.  i'h.  82;  '■>  De  «...  M.  &  G. 
87;  state  v.  Lyon.  ::l:  \.  J.  L  361.  But  more 
technically,  of  the  assigning  dower  to  a  wo- 
man, or  the  severing  of  lit  portion 
for  a  vicar  towards  his  perpetual  mainte- 
nance. 1  Bla.  Com.  Steph. 
Com.  99;  French  v.  Pratt,  27  Me.  381  ;  state 
v.  [^yon,  32  N.  .1.  L.  360;  Runkel  v.  Winemil- 
ler.  4  Hair.  &  McH.  (Md.)  429,  1  Am.  Dec 
411. 


ENDOWMENT   INSURANCE. 

ANCE. 


See  Insur- 


ENEMY 


1040 


ENGAGED 


ENEMV.  A  nation  which  is  at  war  with 
another.  A  citizen  or  a  subject  of  such  a 
nation.  Any  of  the  subjects  or  citizens  of  a 
state  in  amity  with  another  state  who  have 
commenced  or  have  made  preparations  for 
commencing  hostilities  against  the  latter 
otate,  and  also  the  citizens  or  subjects  of  a 
state  in  amity  with  another  state  who  are  in 
the  service  of  a  state  at  war  with  it.  See 
Salk.  (x55;  Bacon,  Abr.  Treason,  G;  Monon- 
gahela  Ins.  Co.  v.  Chester,  43  Pa.  491. 

By  the  term  enemy  is  also  understood  a  person 
who  is  desirous  of  doing  injury  to  another.  The 
Latins  had  two  terms  to  signify  these  two  classes 
of  persons:  the  first,  or  the  public  enemy,  they 
called  liostis,  and  the  latter,  or  the  private  enemy, 
iiiimicus. 

An  enemy  subject  cannot,  as  a  general  rule, 
enter  into  any  contract  which  can  be  enforc- 
ed in  the  courts  of  law ;  but  the  rule  is  not 
without  exceptions :  as,  for  example,  in  suits 
brought  upon  ransom  bills  (q.  v.),  bills  of  ex- 
change drawn  by  prisoners  of  war,  contracts 
entered  into  under  licenses  to  trade  with  the 
enemy  granted  by  a  belligerent  to  its  citi- 
zens; Scholefield  v.  Eichelberger,  7  Pet.  (U. 
S.)  5S6,  8  L.  Ed.  793 ;  Kershaw  v.  Kelsey,  100 
Mass.  561,  97  Am.  Dec.  124,  1  Am.  Rep.  142. 

United  States  citizens  in  Cuba  during  the 
war  with  Spain  were  enemies,  and  cannot 
recover  from  the  United  States  for  property 
destroyed;  Juragua  Iron  Co.  v.  U.  S.,  212  U. 
S.  297,  29  Sup.  Ct.  3S5,  53  L.  Ed.  520.  See 
Public  Enemy. 

ENFEOFF.  To  make  a  gift  of  any  corpo- 
real hereditaments  to  another.  See  Feoff- 
ment. 

ENFRANCHISE.  To  make  free;  to  in- 
corporate a  man  in  a  society  or  body  politic. 
Cue  Diet. 

ENFRANCHISEMENT.  Giving  freedom 
to  a  person.  Admitting  a  person  to  the  free- 
dom of  a  city.  A  denizen  of  England,  or  a 
citizen  of  London,  is  said  to  be  enfranchised. 
So,  too,  a  villein  is  enfranchised  when  he  ob- 
tains his  freedom  from  his  lord.  Termes  de 
la  Ley;  11  Co.  91. 

The  word  is  now  used  principally  either 
of  the  manumission  of  slaves  {q.  v.),  of  giv- 
ing to  a  borough  or  other  constituency  a 
right  to  return  a  member  or  members  to  par- 
liament, or  of  the  conversion  of  copyhold  in- 
to freehold.    Moz.  &  W.  L.  Diet 

ENFRANCHISEMENT      OF      COPYHOLD. 

The  change  of  the  tenure  by  which  lands  are 
held  from  copyhold  to  freehold,  as  by  a  con- 
veyance to  the  copyholder  or  by  a  release  of 
the  seignorial  rights.  1  Watk.  Copy.  362; 
1  Steph.  Com.  632 ;   2  id.  51. 

ENGAGED.  Within  the  meaning  of  a  by- 
law of  a  fraternal  order,  one  is  engaged  in 
the  sale  of  liquor  who  is  a  partner  in  the 
saloon  business,  though  he  performs  no  labor 
in  or  about  the  saloon  and  takes  no  active 


part  in  the  business.  Graves  v.  Knights  of 
Maccabees  of  the  World,  199  N.  Y.  397,  92  N. 
E.  792,  139  Am.  St.  Rep.  912. 

ENGAGEMENT.  In  French  Law.  A  con- 
trail. The  obligations  arising  from  a  Quasi 
contract. 

The  terms  obligation  and  engagement  are  said  to 
be  synonymous;  17  Toullier,  n.  1;  but  the  Code 
seems  specially  to  apply  the  term  engagement  to 
those  obligations  which  the  law  imposes  on  a  man 
without  the  intervention  of  any  contract,  either  on 
the  part  of  the  obligor  of  the  obligee  ;  art.  1370.  An 
engagement  to  do  or  omit  to  do  something  amounts 
to  a  promise  ;    Rue  v.  Rue,  21  N.  J.  L.  3G9. 

Promises  or  debts  of  a  married  woman, 
not  expressly  charged  on  her  separate  es- 
tate, are  termed  her  general  engagements, 
not  binding  it  unless  made  with  reference  to 
and  upon  the  credit  of  it.  L.  R.  4  C.  P.  593 ; 
L.  R.  2  Eq.  1S2  ;  3  De  G.,  F.  &  J.  513.  See 
Agreement  ;  Contbact;  Peomise. 

ENGLAND.  See  United  Kingdom  of 
Gkeat  Britain  and  Ireland. 

ENGL ES HIRE.  A  law  was  made  by  Can- 
ute, for  the  preservation  of  his  Danes,  that, 
when  a  man  was  killed,  the  hundred  or  town 
should  be  liable  to  be  amerced,  unless  it  could 
be  proved  that  the  person  killed  was  an  Eng- 
lishman. This  proof  was  called  Engleshire. 
It  consisted,  generally,  of  the  testimony  of 
two  males  on  the  part  of  the  father  of  him 
who  had  been  killed,  and  two  females  on  the 
part  of  his  mother.  1  Hale,  PI.  Cr.  447;  4 
Bla.  Com.  195;    Spelman,  Gloss. 

ENGLISH  MARRIAGE.  This  phrase  may 
refer  to  the  place  where  the  marriage  was 
solemnized,  or  it  may  refer  to  the  national- 
ity and  domicil  of  the  parties  between  whom 
it  was  solemnized,  the  place  where  the  union 
so  created  was  to  have  been  enjoyed.  6  Prob. 
Div.  51. 

ENGRAVING.     See  Copyright. 

ENGROSS.  To  copy  the  rude  draught  of 
an  instrument  in  a  fair,  large  hand.  To 
write  out,  in  a  large,  fair  hand,  on  parch- 
ment. The  term  is  applied  to  statutes,  which, 
after  being  read  and  acted  on  a  sufficient 
number  of  times,  are  ordered  to  be  engrossed. 
Anciently,  also,  used  of  the  process  of  mak- 
ing the  indenture  of  a  fine.     5  Co.  39  6. 

In  Criminal  Law.  To  buy  up  such  large 
quantities  of  an  article  as  to  obtain  a  mo- 
nopoly of  it  for  the  purpose  of  selling  at  an 
unreasonable  price.  The  tendency  of  modern 
law  is  very  decidedly  to  restrict  the  applica- 
tion of  the  law  against  engrossing;  and  is 
very  doubtful  if  it  applies  at  all  except  to 
obtaining  a  monopoly  of  provisions;  1  East 
143.  And  now  the  common-law  offence  of  the 
total  engrossing  of  any  commodity  is  abol- 
ished by  Stat.  7  &  8  Vict.  c.  24.  Merely  buy- 
ing for  the  purpose  of  selling  again  is  not 
necessarily  engrossing.  14  East  406;  15  id. 
511.  See  Combinations;  Restraint  of 
Trade;  Monopoly. 


ENGROSSER 


1041 


ENLISTMENT 


ENGROSSER.  One  who  engrosses  or 
writes  on  parchment  in  a  large,  fair  hand. 

One  who  purchases  large  quantities  of  any 
commodity  in  order  to  have  the  command  of 
the  market  and  to  sell  them  again  at  high 
prices. 

ENGROSSING.  The  offence  committed  by 
an  engrosser. 

ENHANCED.  Taken  in  an  unqualified 
sense,  it  is  equivalent  to  "increased,"  and 
comprehends  any  Increase  In  value  however 

caused  or  arising.     Thornburn  v.  Doschc-r,  32 
Fed.  812. 

ENITIA  PARS  (L.  Lat).  The  part  of  the 
eldest.  Co.  Litt.  166 ;  Bacon,  Abr.  Coparcen- 
ers (C). 

When  partition  is  voluntarily  made  among 
coparceners  in  England,  the  eldest  has  the 
first  choice,  or  primer  election  (q.  v.)',  and 
the  part  which  she  takes  is  called  enitia  pars. 
This  right  is  purely  persona!,  and  descends: 
it  is  also  said  that  even  her  assignee  shall 
enjoy  it ;  but  this  has  been  doubted.  The 
word  enitia  is  said  to  be  derived  from  the 
old  French  efsne,  the  eldest;  Bac.  Abr.  Co- 
parceners (C) ;   Keilw.  1  a,  49  a;  Cro.  Eliz.  18. 

ENJOIN.  To  command;  to  require:  as, 
private  individuals  are  not  only  permitted, 
but  enjoined,  by  law,  to  arrest  an  offender 
when  present  at  the  time  a  felony  is  commit- 
ted or  a  dangerous  wound  given,  on  pain  of 
fine  and  imprisonment  if  the  wrong-doer  es- 
cape through  their  negligence.  1  Hale,  PL 
Cr.  587 ;   1  East,  PI.  Cr.  298 ;   Ry.  &  M.  93. 

To  command  or  order  a  defendant  in  equi- 
ty to  do  or  not  to  do  a  particular  tiling  by 
writ  of  injunction.  See  55  Ch.  Div.  418 ;  In- 
junction. 

ENLARGE.  To  extend:  as,  to  enlarge  a 
rule  to  plead  is  to  extend  the  time  during 
which  a  defendant  may  plead.  To  enlarge 
means,  also,  to  set  at  liberty:  as,  the  pris- 
oner was  enlarged  on  giving  bail. 

ENLARGING.  Extending,  or  making  more 
comprehensive:  as,  an  enlarging  statute, 
which  is  one  extending  the  common  Law.  En- 
larging an  estate  is  the  increasing  an  estate 
in  laud,  as  where  A.  has  an  estate  for  life 
with  remainder  to  B.  and  his  heirs,  and  B. 
releases  his  estate  to  A.  2  Bla.  Com.  324. 
See  Release. 

ENLISTMENT.  The  act  of  making  a  con- 
tract to  serve  the  government  iu  a  subordi- 
nate capacity,  either  in  the  army  or  navy. 
The  contract  so  made  is  also  called  an  en- 
listment. A  drafted  man  is  said  to  be  "eu- 
listed"  as  well  as  a  volunteer,  but  the  term 
does  not  apply  to  one  entering  the  army  un- 
der a  commission  ;  Inhabitants  of  Sheffield  v. 
Inhabitants  of  Otis,  107  Mass.  282;    Billiard 

v.  Stewartstown,  48  N.  II.  280.     Th< otract 

of  enlistment  involves  a  change  in  the  status 
of  the  recruit,  which  he  cannot  throw  off  at 
Bouv.— 66 


will,  though  he  may  violate  his  contract:  In 
re  Grimley,  137  Q.  S.  147,  11  Sup.  Ct.  54,  34 
L.  Ed  636. 

Fraudulent  enlistment  is  an   off< 
Ishable  by  general  court-martial;   A  I 

••tween  the  ages  of  16  and  18 
are  authorized  to  enlist  if  they  have  the  con- 
sent of  their  parents  or  guardians;  R.  S. 
1419.  But  a  minor  who  has  been  enlisted  in 
either  service  without  the  consent  of  his  par 
ents  or  guardian  is  both  de  facto  and  dr  jure 
in  the  service,  and  is  liable  to  be  tried  and 
punished  for  any  infraction  of  the  regulations. 
The  lack  of  such  consent  will  require  his  dis- 
charge from  the  service,  but  it  will  not  ab- 
solve him  from  punishment  for  offences  com- 
mitted while  in  the  service;  Dillingham  v. 
Booker,  L63  Fed.  696,  90  C.  C.  A  280,  IS  L. 
R.  A.  (N.  S.)  956,  16  Ann.  Cas.  127;  U.  S.  v. 
Reaves,  126  Fed.  127,  GO  C.  C.  A.  675;  In  re 
Scott,  144  Fed.  79,  7.",  < '.  c.  a.  237;  In  re 
Lessard,  134  Fed.  305.  But  in  Ex  parte  Lisk. 
145  Fed.  8G0,  it  was  held  that  where  the  stat- 
ute required  the  consent  of  the  parents,  and 
such  consent  was  not  given,  the  minor  was 
not  a  person  "belonging  to  the  navy,"  and 
the  naval  authorities  could  not  detain  him 
in  custody  with  a  view  to  having  him  tried 
by  a  naval  court-martial  for  fraudulent  en- 
listment, when  the  real  issue  was  his  legal 
right  to  enter  the  navy,  and  whether  he  was 
lawfully  therein  or  not ;  followed  in  Dilling- 
ham v.  Bakley,  152  Fed.  1022,  82  C.  C.  A 
659,  affirming  Ex  parte  Bakley,  14S  Fed.  50. 

Where  the  jurisdiction  of  the  civil  courts 
has  attached  in  habeas  corpus  proceedings  be- 
fore charges  are  preferred  against  a  minor 
for  fraudulent  enlistment  and  an  arrest 
made,  he  is  entitled  to  be  discharged;  Ex 
parte  Houghton,  129  Fed.  239;  contra.  Ex 
parte  Lewkowitz,  163  Fed.  046.  In  V.  S.  v. 
Wright,  5  Phila.  299,  Fed.  Cas.  No.  16,778,  it 
was  held  the  enlistment  of  a  minor  without 
his  parents'  consent  was  illegal,  and  his  sub- 
sequent desertion  was  but  a  disclaimer  of 
his  contract,  which  be  had  a  right  to  make, 
citing  and  following  Com.  v.  Fox,  T  Pa.  336. 
But  the  right  to  a  discharge  is  denied  to  a 
minor,  himself  the  petitioner,  on  the  ground 
that  the  contract  was  valid  so  far  as  the 
minor  himself  is  concerned;  In  re  Moirissey, 
137  U.  S.  ir,7.  11  Sup.  Ct.  57,  .".1  L.  Ed.  644; 
In  re  Hearn,  32  Fed.  141.  See  22  II.  I..  K. 
144.  A  federal  court  may  discharge  on  ha- 
beas corpus;  I0x  parte  Sehmeid.  1  In' 
Fed.  Cas.  No.  12,461  :  but  not  a  state  court  : 
Tarble's  Case,  13  Wall.  (U.  S.)  397,  20  L.  Ed 
597. 

The  receipt  of  pay  seems  to  be  tantamount 
to  an  enlistment  or  perhaps  evidence  th( 
Art.  of  War  17  provides  for  the  punishment 
of  "any  soldier  who.  having  received  pay  or 
having  been  duly  enlisted,"  etc.,  "deserts," 
etc.  In  Re  Grimley,  137  I".  S.  147,  11  Sup. 
Ct  54,  34  I..  Ed.  636,  it  was  held  that  taking 
the  oath  of  enlistment  "was  the  pivotal  fact 
which  operated  to  change  the  status." 


ENORMIA 


1042 


ENTICE 


ENORMIA  (Lat).  Wrongs.  See  Alia  En- 
ormia. 

ENQUETE  or  ENQUEST.  In  Canon 
Law.  An  examination  of  witnesses  in  the 
presence  of  a  judge  authorized  to  sit  for  this 
purpose,  taken  in  writing,  to  be  used  as  ev- 
idence in  the  trial  of  a  cause.  The  day  of 
hearing  must  be  specified  in  a  notice  to  the 
opposite  party;  9  Low.  C.  392.  It  may  be 
opened,  in  some  cases,  before  the  trial ;  10 
Low.  G.  19. 

ENROLL.  To  register;  to  enter  on  the 
rolls  of  chancery,  or  other  courts;  to  make 
a  record. 

ENROLMENT.  The  registering  or  enter- 
ing on  the  rolls  of  chancery,  king's  bench, 
common  pleas,  or  exchequer,  or  by  the  clerk 
Of  the  peace  in  the  records  of  the  quarter 
sessions,  of  any  lawful  act :  as,  a  recog- 
nizance, a  deed  of  bargain  and  sale,  and  the 
like.  Jacob,  Law  Diet.  For  the  terms  "en- 
rolment" and  "registration"  as  used  in  the 
United  States  merchant  shipping  laws,  see 
R.  S.  tit.  50;  21  Stat.  L.  271;  18  id.  30;  The 
Mohawk,  3  Wall.  (U.  S.)  566,  18  L.  Ed.  67; 
Vessel. 

ENS  LEG  IS.  A  being  of  the  law;  a  legal 
entity.     Used  of  corporations. 

ENTAIL.  A  fee  abridged  or  limited  to  the 
issue,  or  certain  classes  of  issue,  instead  of 
descending  to  all  the  heirs.  1  Washb.  R.  P. 
66 ;  2  Bla.  Com.  112,  n. ;   Wms.  R.  P.  61. 

To  restrict  the  inheritance  of  lands  to  a 
particular  class  of  issue.  1  Washb.  R.  P.  66 ; 
2  Bla.  Com.  113.     See  Fee -Tail. 

ENTENCION.     In    Old    English    Law.    The 

plaintiff's  declaration. 

ENTER.  To  go  upon  lands  for  the  pur- 
pose of  taking  possession ;  to  take  possession. 
In  a  strict  use  of  terms,  entry  and  taking 
possession  would  seem  to  be  distinct  parts  of 
the  same  act ;  but,  practically,  entry  is  now 
merged  in  taking  possession.  1  Washb.  R.  P. 
10,  32  ;   Stearn,  Real  Act.  2. 

To  cause  to  be  put  down  upon  the  record. 
An  attorney  is  said  to  enter  his  appearance, 
or  the  party  himself  may  enter  an  appear- 
ance.    See  Entry. 

ENTERTAINMENT.  Something  connected 
with  the  enjoyment  of  refreshment  rooms, 
tables,  and  the  like.  It  is  something  be- 
yond refreshments ;  it  is  the  accommodation 
provided  whether  that  includes  musical  or 
other  amusements  or  not.  L.  R.  10  Q.  B.  595. 
It  is  synonymous  with  board ;  Scattergood  v. 
Waterman,  2  Miles  (Pa.)  323 ;  but  it  may  in- 
clude refreshment,  without  seating  accom- 
modation; 1  Ex.  Div.  385.  See  Place  of 
Amusement. 

ENTICE.  To  solicit,  persuade,  or  procure. 
Nash  v.  Douglass,  12  Abb.  Pr.  N.  S.  (N.  Y.) 
187.  The  enticing  desertions  from  the  army 
or  navy  or  arsenals  of  the  United  States  is 


punishable  by  fine  and  imprisonment.     R.  S. 
§§  1553,  1668,  5455,  5525. 

A  husband  may  recover  compensation  for 
enticing  his  wife  away ;  French  v.  Deane,  19 
Colo.  504,  36  Pac.  609,  24  L.  R.  A.  387 ;  Tas- 
ker  v.  Stanley,  153  Mass.  148,  26  N.  E.  417, 
10  L.  R.  A.  468.  It  is  no  defence  to  show 
that  they  had  not  lived  happily  together, 
though  it  may  go  in  mitigation  of  damages; 
Hadley  v.  Hey  wood,  121  Mass.  236 ;  Bailey  v. 
Bailey,  94  la.  598,  63  N.  W.  341.  Stronger 
evidence  is  required  where  a  parent  har- 
bors his  daughter ;  it  ought  to  appear  that 
there  were  improper  motives ;  Hutcheson  v. 
Peck,  5  Johns.  (N.  Y.)  196 ;  Schoul.  Husb.  & 
W.  §  64;  Glass  v.  Bennett,  S9  Tenn.  478,  14 
S.  W.  1085 ;  White  v.  Ross,  47  Mich.  172,  10 
N.  W.  1SS.  So  of  a  wife's  action  against  her 
husband's  parents  for  enticing  him  away 
from  her;  Reed  v.  Reed,  6  Ind.  App.  317,  33 
N.  E.  638,  51  Am.  St.  Rep.  310 ;  and  probably 
of  a  brother's  harboring  his  sister;  Glass 
v.  Bennett,  89  Tenn.  479,  14  S.  W.  1085.  It 
has  been  held  that  neither  at  common  law 
nor  under  statutes  giving  a  wife  the  right  to 
sue  has  she  a  right  of  action  for  enticing 
away  her  husband ;  Duffies  v.  Duffies,  76 
Wis.  374,  45  N.  W.  522,  8  L.  R.  A.  420,  20 
Am.  St.  Rep.  79 ;  Doe  v.  Roe,  82  Me.  503,  20 
Atl.  83,  8  D.  R.  A.  833,  17  Am.  St.  Rep.  499 ; 
Hester  v.  Hester,  88  Tenn.  270,  12  S.  W.  446 ; 
but  the  weight  of  authority  is  that  the  ac- 
tion will  lie  at  common  law ;  Holmes  v. 
Holmes,  133  Ind.  3S6,  32  N.  E.  932 ;  Waldron 
v.  Waldron,  45  Fed.  315;  Hodgkinson  v. 
Hodgkinson,  43  Neb.  269,  61  N.  W.  577,  27  L. 
R.  A.  120,  47  Am.  St  Rep.  759;  Bennett  v. 
Bennett,  116  N.  Y.  584,  23  N.  E.  17,  6  L.  R. 
A.  553;  9  H.  L.  Cas.  577.  See  Warren  v. 
Warren,  89  Mich.  123,  50  N.  W.  842,  14  L.  R. 
A.  545.     See  Alienation  of  Affection. 

A  parent  has  a  right  of  action  against  one 
who  improperly  entices  his  minor  child 
away  from  him ;  Grand  Rapids  &  I.  R.  R.  Co. 
v.  Showers,  71  Ind.  451 ;  Caughey  v.  Smith, 
50  Barb.  (N.  Y.)  351;  L.  R.  2  C.  P.  615;  in 
tort  or  assumpsit;  Tiffany,  Pers.  &  Dom. 
Rel.  284.  The  action  is  on  the  theory  of  loss 
of  services,  and  the  relation  of  master  and 
servant,  either  actual  or  constructive,  must 
be  proven;  id.;  Magee  v.  Holland,  27  N.  J. 
L.  86,  72  Am.  Dec.  341. 

A  master  has  a  right  of  action  for  know 
ingly  enticing  his  servant;    2  El.  &  Bl.  216 
Bixby  v.  Dunlap,  56  N.  H.  456,  22  Am.  Rep 
475  and  note ;    Jones  v.  Blocker,  43  Ga.  331 
Duckett  v.  Pool,  33  S.  C.  23S,  11  S.  E.  6S9 
even  though  the  contract  of  employment  was 
one  which   the  servant  could   terminate   at 
will;    Haskins  v.  Royster,  70  N.  C.  601,  16 
Am.  Rep.  780;    L.  R.  2  C.  P.  615;    but  not 
where  it  had  expired  by  its  own  limitations; 
Boston  Glass  Manufactory  v.  Binney,  4  Pick. 
(Mass.)    425.     The    doctrine    extends   to    all 
kinds  of  employes;    Walker  v.   Cronin,   107 
Mass.  555 ;  though  it  has  been  held  to  apply, 
at  common  law,  only   to  domestic  servants 


ENTICE 


1043 


I.N  1  [RETT 


and  apprentices;  Huff  v.  Watkins,  15  S.  C. 
82,  40  Am.  Rep.  6S0. 

Where  one  after  notice  continues  to  em- 
ploy another's  servant,  the  latter  has  a  right 
of  action,  though  at  the  time  he  hired  him 
the  second  master  did  not  know  that  he  was 
hiring  another  man's  servant:  Schoul.  Dom. 
Rel.  §  4S7;  but  in  Lumley  v.  Gye,  2  El.  &  Bl. 
216,  whieh  was  an  action  for  damages  can  ed 
by  the  enticement  of  Wagner,  a  celebrated 
singer,  from  one  theatre  to  another,  the  ma- 
jority of  the  court  thought  the  action  would 
lie. 

Enticement  in  some  states  renders  one  lia- 
ble to  criminal  prosecution;  Bryan  v.  State, 
44  Ga.  32S ;  Roseberry  v.  State,  50  Ala.  1G0 ; 
State  v.  Daniel,  89  X.  C.  553.  See  Chipley  v. 
Atkinson,  23  Fla.  206,  1  South.  934,  11  Am. 
St  Rep.  3G7. 

ENTIRE.  That  which  is  not  divided;  that 
which  is  whole. 

When  a  contract  is  entire,  it  must,  in  gen- 
eral, be  fully  performed  before  the  party  can 
claim  the  compensation  which  was  to  have 
been  paid  to  him  ;  for  example,  when  a  man 
hires  to  serve  another  for  one  year,  he  will 
not  be  entitled  to  leave  him  at  any  time  be- 
fore the  end  of  the  year,  and  claim  compen- 
sation for  the  time  unless  it  be  done  by  the 
consent  or  default  of  the  party  hiring;  Hair 
v.  Bell,  6  Vt.  35;  Stark  v.  Parker,  2  Pick. 
(Mass.)  267,  13  Am.  Dec.  425;  McClure  v. 
Pyatt,  4  McCord  (S.  C.)  26 ;  Byrd  v.  Boyd,  4 
McCord  (S.  C.)  246,  17  Am.  Dec.  740 ;  Rounds 
v.  Baxter,  4  Greenl.  (Me.)  454 ;  Hoar  v.  Clute, 
15  Johns.  (N.  Y.)  224;  Watkins  v.  Hodges,  6 
H.  &  J.  (Md.)  38.  See  Olmstead  v.  Bach,  78 
Md.  132,  27  Atl.  501,  22  L.  R.  A.  74,  44  Am. 
St.  Rep.  273.  A  contract  is  entire  if  the  con- 
sideration be  single  and  eutire,  notwithstand- 
ing the  subject  of  the  contract  consists  of  sev- 
eral distinct  items ;  2  Pars.  Cont.  517.  See 
Divisible. 

An  entire  day  is  an  undivided  day,  from 
midnight  to  midnight;  Robertson  v.  State, 
43  Ala.  325;  Haines  v.  State,  7  Tex.  App.  30; 
Lawrence  v.  State,  7  Tex.  App.  192.  The 
words  "entire  use,  benefit,"  etc.,  in  a  trust 
deed  for  the  benefit  of  a  married  woman, 
have  been  construed  as  equivalent  to  "sole 
and  separate  use"  ;  Hcathman  v.  Hall,  38  N. 
C.  414.  Entire  tenancy  "is  contrary  to  sev- 
eral tenancy,  signifying  a  sole  possession  in 
one  man,  whereas  the  other  signifieth  joint 
or  common  in  more."    Co  well. 

ENTIRETY.  This  word  denotes  the  whole, 
in  contradistinction  to  moiety,  which  deuote's 
the  half  part.  A  husband  and  wife,  when 
jointly  seized  of  land,  are  seized  by  entireties 
per  tout  and  not  per  my  et  per  tout,  as  joint 
tenants  are.  Jacob,  Law  Diet.;  2  Kent  132. 
See  In  re  Bramberry's  Estate,  156  Pa.  628,  27 
Atl.  405,  22  L.  R.  A.  594,  36  Am.  St.  Rep. 
64.     Per  Tout  et  now  Peb  My. 

The  same  words  of  conveyance  that  would 
make  two  other  persons  joint   tenants   will 


make  the  husband  and  wife  tenants  of  the 
entirety;  Georgia,  etc.,  R.  Co.  v.  Scott,  3fe 
S.  0.  34,   L6  s.  .  y  v.  Bing- 

60  -Miss.  795,  r.  g  a  ...  352;  Noblitt  v. 
Beebe,  23  Or.  4.  35  pac.  248;  Chambers  v. 
Chambers,  92  Tenn.  7<j7.  l-:;  S.   \. 

Such  an  estate  has  the  quality  of  survivor- 
ship, where!. y  the  ii-ir.    of  the  survivor 
to  tlie  exelusion  of  the  beirs  of  the  fir 
ceased  ;   Marburg  v.  Cole,  49  Md.  i 
Rep.  266;    Kunz  v.  Kurtz,  8  Del.  Ch.  -i 
Atl.  450.    There  can  he  no  partition  bet 
tenants  by  entireties;    Chandler  v.  Cheney, 
37  Ind.  391;    no  interest  in  it  can  be  » 
execution   for  the  debts  of  the  husband  or 
wile;     id.;    Almond   v.    Bonnell,   76    111 
But  in  Hiles  v.  Fisher,  144  X.  Y.  306,  39  N. 
B.  337,  30  L.  R.  A.  305,  43  Am.  St.  Re; 
a  purchaser  at  a  mortgage  foreclosure  sale 
which  covered  the  property  held   in  entirely 
and  in  which  the  wife  did  not  join  was  held 
to  become  a  tenant  in  common  with  the  wife 
as  to  such  property;  and  to  the  same  effect 
Washburn  v.  Burns,  :;i  X.  J.  L.  18.    In  Butt- 
lar  v.   Rosenblath,   42   X.   J.    Eq.   651,   9  Atl. 
095,  59  Am.  Rep.  52,  an  act  which  in  terms 
preserves  to  a  married  woman  her  separate 
right   of  property    was    held    to    change   the 
status  of  an  estate  by  entirety  to  the  extent 
of  limiting  the  rights  of  the  creditors  of  the 
husband  to  subject  the  use  of  only  his  half 
of  such  an  estate  to  the  payment  of  his  debts. 

That  a  judgment  against  the  husband  is 
not  a  lien  on  real  estite  owned  by  himself 
and  wife  by  entirety,  and  that  they  can  con- 
vey it  free  and  clear  of  an  unsatisfied  judg- 
ment lien  against  him  (valid  on  laud  owned 
by  him  personally),  is  held  :  Davis  v.  Clark. 
26  Ind.  424,  89  Am.  Dec.  471,  where  it  is  said; 
"As  between  husband  and  wife,  there  is  but 
one  owner,  and  that  is  neither  the  one  nor 
the  other,  but  both  together.  The  estate  be- 
longs as  well  to  the  wife  as  to  the  husband." 
The  husband  cannot  therefore  possess  any 
interest  separate  from  bis  wife,  nor  can  he 
alienate  or  encumber  the  estate.  From  the 
peculiar  nature  of  this  estate  and  from  the 
legal  relation  of  the  parties,  there  must  be 
unity  of  estate,  unity  of  possession,  unity  of 
control,  and  unity  in  conveying  or  encum- 
bering it;  and  it  necessarily  results  that  it 
cannot  be  seized  and  sold  upon  execution  for 
the  separate  debts  of  either  the  husband  or 
the  wife;  followed  in  Ilulett  v.  Inlow.  7.7 
Ind.  411^.  26  Am.  Rep.  64;  Barren  Creek 
Ditching  Co.  v.  Beck,  99  Ind.  247;  and  to 
the  same  effect,  Alios  v.  Lyon.  216  Pa,  604,  66 
Atl.  SI,  10  L.  R.  A.  (N.  S.)  463,  lit:  A 
Rep.  791.  9  Ann.  Cas.  137;  Dickey  v. 
verse.  117  Mich.  449,  76  X.  W.  SO.  72  Am.  St. 
Rep.  568;  Lank  v.  Corder,  32  W.  \  a.  •J.:l'.  9 
s.  B.  220;  Oole  Mfg.  Co.  v.  Colder.  95  Tena 
115,  31  S.  W.  1000,  30  L.  R.  A.  315,  49  Am. 
St.  Rep.  921;  Ray  v.  Long,  132  X.  0.  v.U.  44 
S.  E.  t'.r.l'. 

Whore  a  husbaud  and  wife  sold  land  owned 
by   them   as   tenants   by   entirety,    taking   a 


ENTIRETY 


1044 


ENTRY 


mortgage  to  husband  and  wife,  the  wife  died, 
and  the  bond  was  paid,  it  was  held  that  one- 
half  the  proceeds  belonged  to  the  wife's  legal 
representatives;  In  re  Baum,  121  App.  Div. 
49G,  106  N.  Y.  Supp.  113. 

Where  a  wife  pays  for  land  and  consents 
that  the  title  may  be  taken  in  the  name  of 
herself  and  husband,  they  hold  as  tenants  in 
entirety,  and  a  conveyance  by  the  husband 
passes  the  rights  to  the  possession  of  the 
land  during  their  joint  lives,  and  to  the  fee 
in  case  the  husband  survive ;  Hiles  v.  Fisher, 
67  Hun  229,  22  X.  Y.  Supp.  795:  Phelps  v. 
Simons,  159  Mass.  415,  34  N.  E.  657,  38  Am. 
St.  Rep.  430. 

In  Merritt  v.  Whitlock,  200  Pa.  50,  49  Atl. 
786,  it  was  said  it  might  be  considered  as 
still  an  open  question  whether  husband  and 
wife  may  not,  since  the  married  woman's 
acts,  take,  as  well  as  hold  in  common,  if  there 
be  a  clear  actual  intent,  notwithstanding  the 
presumption  to  the  contrary.  But  a  later 
case  in  the  same  state  holds  that  as  the  qual- 
ity of  the  estate  is  determined  at  its  incep- 
tion, that  estate  could  not  be  stripped  of 
any  of  its  incidents  except  by  express  stat- 
utory provision  existing  at  the  time  of  its  in- 
ception ;  Alles  v.  Lyon,  216  Pa.  604,  66  Atl. 
81,  10  L.  R.  A.  (N.  S.)  463,  116  Am.  St  Rep. 
791,  9  Ann.  Cas.  137. 

This  estate,  where  it  exists  as  at  common 
law,  is  not  affected  by  the  statutes  for  the 
protection  of  married  women,  nor  by  statutes 
providing  that  conveyances  to  two  or  more 
persons  shall  be  deemed  to  create  a  tenancy 
in  common  and  not  a  joint  tenancy ;  Kunz  v. 
Kurtz,  8  Del.  Ch.  404,  68  Atl.  450. 

As  to  the  effect  of  the  married  woman's 
acts  on  estates  held  by  entirety,  see  Married 
Woman. 

The  divorce  of  the  parties  will  not  sever 
an  estate  by  entirety;  Alles  v.  Lyon,  216  Pa. 
604,  66  Atl.  81,  10  L.  R.  A.  (N.  S.)  463,  116 
Am.  St  Rep.  791,  9  Ann.  Cas.  139;  contra, 
Joerger  v.  Joerger,  193  Mo.  133,  91  S.  W.  918, 
5  Ann.  Cas.  534;  Hayes  v.  Horton,  46  Or. 
597,  81  Pac.  386  (by  changing  it  into  a  ten- 
ancy in  common). 

ENTITLE.  To  give  a  right  to.  L.  R.  20 
Eq.  534. 

ENTRY.  In  Common  Law.  The  act  of 
setting  down  the  particulars  of  a  sale,  or 
other  transaction,  in  a  merchant's  or  trades- 
man's account-books:  such  entries  are,  in 
general,  prima  facie  evidence  of  the  sale  and 
delivery,  and  of  work  done ;  but  unless  the 
entry  be  the  original  one,  it  is  not  evidence. 
See  Short  Entry;  Single  Entry. 

In  Revenue  Law.  The  submitting  to  the 
inspection  of  officers  appointed  by  law,  to 
collect  customs,  goods  imported  into  the  Unit- 
ed States,  together  with  a  statement  or  de- 
scription of  such  goods,  and  the  original  in- 
voices of  the  same,  for  the  purpose  of  esti- 
mating the  duties  to  be  paid  thereon. 

The  term  "entry"  in  the  acts  of  congress  is 


used  in  two  senses.  In  many  of  the  acts  it 
refers  to  the  bill  of  entry, — the  paper  or 
declaration  which  the  merchant  or  importer 
in  the  first  instance  hands  to  the  entry  clerk. 
In  other  statutes  it  is  used  to  denote,  not  a 
document,  but  a  transaction ;  a  series  of  acts 
which  are  necessary  to  the  end  to  be  accom- 
plished, viz.  the  entering  of  the  goods;  U.  S. 
v.  Cargo  of  Sugar,  3  Sawy.  46,  Fed.  Cas.  No. 
14,722. 

In  Criminal  Law.  The  act  of  entering  a 
dwelling-house,  or  other  building,  in  order 
to  commit  a  crime.    See  Burglary. 

Upon  Real  Estate.  The  act  of  going  upon 
the  lands  of  another,  or  lands  claimed  as 
one's  own,  with  intent  to  take  possession. 
See  Guion  v.  Anderson,  8  Humph.  (Tenn.)  306. 

In  general,  any  person  who  has  a  right 
of  possession  may  assert  it  by  a  peaceable 
entiTi  without  the  formality  of  a  legal  ac- 
tion, and,  being  so  in  possession,  may  retain 
it,  and  plead  that  it  is  his  soil  and  freehold ; 
3  Term  295.  A  notorious  act  of  ownership 
of  this  kind  was  always  equivalent  to  a  feo- 
dal  investiture  by  the  lord,  and  is  now  allow- 
ed in  all  cases  where  the  original  entry  of  a 
wrong-doer  was  unlawful.  But,  in  all  cases 
where  the  first  entry  was  lawful  and  an  ap- 
parent right  of  possession  was  thereby  gain- 
ed, the  owner  of  the  estate  cannot  thus  enter, 
but  is  driven  to  his  action  at  law ;  3  Bla. 
Com.  175.     See  Re-Entry;  Forcible  Entry. 

At  common  law,  no  person  could  make  a 
valid  sale  of  land  unless  he  had  lawfully  en- 
tered, and  could  make  livery  of  seisin, — that 
is,  could  make  an  actual  delivery  of  posses- 
sion to  the  purchaser.  This  provision  was 
early  incorporated  into  the  English  statutes, 
to  guard  against  the  many  evils  produced  by 
selling  pretended  titles  to  land.  A  pretended 
title  within  the  purview  of  the  law  is  where 
one  person  claims  land  of  which  another  is 
in  possession  holding  adversely  to  the  claim; 
1  Plowd.  88  a;  Littleton  §  347;  Livingston 
v.  Iron  Co.,  9  Wend.  (N.  Y.)  511.  And  now 
in  most  of  the  states,  every  grant  of  land,  ex- 
cept as  a  release,  is  void  as  an  act  of  main- 
tenance, if,  at  the  time  it  is  made,  the  lands 
are  in  the  actual  possession  of  another  per- 
son claiming  under  a  title  adverse  to  that  of 
the  grantor ;  4  Kent  446 ;  Williams  v.  Jack- 
son, 5  Johns.  (N.  Y.)  489 ;  Wolcot  v.  Knight, 
6  Mass.  418;  Cornwell  v.  Clement,  87  Hun 
50,  33  N.  Y.  Supp.  866;  Sneed  v.  Hope  (Ky.) 
30  S.  W.  20;  contra,  Hadduck  v.  Wilmarth, 
5  N.  H.  181,  20  Am.  Dec.  570;  Stoever  v. 
Whitman's  Lessee,  6  Binn.  (Pa.)  420;  Mat- 
thews v.  Hevner,  2  App.  Cas.  D.  C.  349. 
See  Champerty;  Buying  Titles. 

In  a  more  limited  sense,  an  entry  signifies 
the  simply  going  upon  another  person's  prem- 
ises for  some  particular  purpose.  The  right 
to  land  is  exclusive,  and  every  unwarranted 
entry  thereon  without  the  owner's  leave, 
whether  it  be  enclosed  or  not,  or  unless  the 
person  entering  have  an  authority  given  him 


ENTRY 


1045      ENTRY  AD  COMMDNEM  LEGEM 


by  law,  is  a  trespass;  Adams  v.  Freeman,  12 
Johns.  (N.  Y.)  408,  7  Am.  Dee.  327;  Wells  v. 
Howell,  19  Johns.  (N.  I.)  385.  But  the  own- 
er's license  will  sometimes  Lie  presumed,  and 
then  will  continue  In  force  until  it  is  actually 
revoked  by  the  owner;  Dexter  v.  Hazen,  10 
Johns.  (N.  T.)'246;  Willes  195;  TayL  L.  & 
T.  766.    See  License. 

Authority  to  enter  upon  lauds  is  given  by 
law  in  many  eases.     See  Abbest. 

The  proprietor  of  chattels  may  under  some 
circumstances  enter  the  land  of  another  up- 
on which  they  are  placed,  and  remove  them, 
provided  they  are  there  without  his  default: 
as,  where  his  tree  has  blown  down  into  the 
adjoining  close  by  the  wind,  or  his  fruit  has 
fallen  from  a  branch  which  overhung  it;  20 
Vin.  Abr.  418;    2  GreenL  Ev.  §  627. 

A  landlord  also  may  enter,  to  distrain  or 
to  demand  rent,  to  see  whether  waste  has 
been  committed,  or  repairs  made,  and  may  go 
into  the  house  for  either  purpose,  provided 
the  outer  door  be  open;  Cro.  Eliz.  S7G;  2 
Greenl.  Ev.  §  627.  So,  if  he  is  bouud  to  re- 
pair, he  has  a  right  of  entry  given  him  by 
law  for  that  purpose  ;  Moore  889.  Or  if  trees 
are  excepted  out  of  a  demise,  the  lessee  has 
a  right  of  entering  to  prune  or  fell  them ; 
11  Co.  53 ;  Tayl.  L.  &  T.  §  767.  A  tenant  be- 
comes a  trespasser  after  the  expiration  of 
his  term,  though  his  holding  is  in  good  faith 
under  color  of  a  reasonable  claim  of  right; 
and  the  landlord  may  forcibly  enter  thereon 
and  eject  him  without  legal  process;  Free- 
man v.  Wilson,  16  R.  I.  524,  17  Atl.  921 ;  Al- 
len v.  Keily,  17  R.  I.  731,  24  Atl.  776,  16  L. 
R.  A.  798,  33  Am.  St.  Rep.  905. 

So  any  man  may  throw  down  a  public  nui- 
sance; and  a  private  one  may  be  thrown 
down  by  the  party  grieved,  and  this  before 
any  prejudice  happens,  but  only  from  the 
probability  that  it  may  happen ;  Webb,  Poll. 
Torts  513;  5  Co.  102.  And  see  1  Brownl. 
212;  12  Mod.  510;  W.  Jones  221;  1  Stra. 
683 ;  Kiefer  v.  Carrier,  53  Wis.  404,  10  N.  W. 
562.  To  this  end,  the  abator  has  authority 
to  enter  the  close  in  which  it  stands.  See 
Nuisance. 

In  Practice.  The  placing  on  record  the 
various  proceedings  in  an  action,  in  technical* 
language  and  order.  The  extreme  strictness 
of  the  old  practice  is  somewhat  relaxed,  but 
the  term  entry  is  still  used  in  this  connec- 
tion. "Books  of  Entries"  were  formerly 
much  relied  on,  containing  forms  or  prece- 
dents of  the  proceedings  in  various  actions  as 
they  appear  on  record. 

In  the  law  books  the  words  entry  and  en- 
tered are  frequently  used  as  synonymous 
with  recorded ;  Lent  v.  Ry.  Co.,  130  N.  Y.  504, 
29  N.  E.  9SS.  See  Blatchford  v.  Newberry, 
100  111.  4S4 ;  McLaughlin  v.  Doherty,  54  Cal. 
519. 

For  entry  of  public  lands,  see  Pre-emption 
Rigiit.  For  the  terms  entry  of  judgment, 
entry  of  appearance,  entry  for  copyright,  see 
Juogment;  Appearance;  Copyright. 


I  ENTRY  AD  C0MMUNEM  LEGEM.  A  writ 
which  lay  in  favor  of  the  reversioner,  when 
the  tenant  for  term  of  life,  tenant  for  term 
of  another's   life,   tenant    by   the   curt' 

I  tenant  in  dower  had  aliened  and  died, 
lin,  Law  Diet     Long  obsolete,  and  abolished 
in  183a 

ENTRY,    WRIT    OF.     In    Old    Practice.     A 
real  action  brought  to  recover  the  ; 
of  lands  from  one  who  wrongfully  withholds 
.   thereof. 
Such  writs  were  said  to  be  in  the  Quibus, 
where  the  suit  was  brought  against  the  par- 
ty  who  committed   the  wrong;    in   the   l'<  r, 
where   the   tenant   against  whom  the  action 
was   brought   was  either  heir  or  gran; 
the    original    wrong-doer;     in    the    Per    and 
(Jul,  where  there  had  been  two  descents,  two 
alienations,  or  descent  and  an  alienation;    iii 
the  Post,  where  the  wrong  was  removed  be- 
yond the  degrees  mentioned. 

The  above  designations  are  derived  from  signifi- 
cant Latin  words  in  the  respective  forms  adapt'  d 
to  the  cases  given.  A  descent  or  alienation  on  the 
part  of  the  disseisor  constituted  a  degree  (see  Co. 
Lilt.  2:'j9  a)  ;  and  at  common  law  the  writ  could  be 
brought  only  within  the  degrees  (two),  the  demand- 
ant after  that  being  driven  to  his  writ  of  right,  By 
the  statute  of  Marlbridge  (q.  v.),  52  Hen.  III.  c.  30 
(a.  d.  12G7),  however,  a  writ  of  entry,  after  (post) 
those  degrees  had  been  passed  in  the  alienation  of 
the  estate,  was  allowed.  Where  there  had  L 
descent  and  the  demandant  himself  had  been  dis- 
possessed, the  writ  ran,  frccvipe  A  quod  reddat  U 
as  terra,  etc.  de  quibus  idem  A,  etc.  (com- 
mand A  to  restore  to  B  six  acres  of  land,  etc.,  of 
which  the  said  A,  etc.)  ;  if  there  had  been  a  descent 
after  the  description  came,  the  clause,  in  quod  idem 
A  non  habet  ingressum  nisi  per  C  qui  Mud  ci  dem- 
isit  (into  which  the  said  A,  the  tenant,  has  no  entry 
but  through  C,  who  demised  it  to  him)  ;  where 
there  were  two  descents,  nisi  per  D  cui  C  illud  dem- 
isit  (but  by  D,  to  whom  C  demised  it)  ;  where  it 
was  beyond  the  degrees,  nisi  post  disseisinam  quam 
C  (but  after  the  disseisin  which  C,  the  original  dis- 
seisor,  did,    etc.). 

The  writ  was  of  many  varieties,  also,  according  to 
the  character  of  the  title  of  the  claimant  and  tho 
circumstances  of  the  deprivation  of  possession. 
Booth  enumerates  and  discusses  twelve  of  these,  of 
which  some  are  sur  disseisin,  sur  intrusion,  ad  com- 
munem  legem,  ad  terminum  qui  preterit,  cui  in  vita, 
cui  ante  divortium,  etc.  Either  of  these  might,  of 
course,  be  brought  in  any  of  the  four  degrees,  as  the 
circumstances  of  the  case  required.  The  use  of 
writs  of  entry  has  been  long  since  abolished  in  Eng- 
land ;  but  they  are  still  in  use  in  a  modified  form 
in  some  states,  as  the  common  means  of  recovering 
possession  of  realty  against  a  wrongful  occupant; 
Emerson  v.  Thompson,  J  Pick.  (Mass.)  473;  Tilson 
v.  Thompson,  10  Pick.  (Mass.)  359  ;  Bean  v.  Moulton, 
5  N.  11.  450;  Rowell  v.  Mitchell.  G3  Me.  21;  Day 
v.  Philbrook,  85  Me.  90,  26  Atl.  999  ;  Cole  v.  Inhab- 
itants of  Eastham,  124  Mass.  307  ;  Wilbur  v.  Ripley, 
124  Mass.  468;  Pettingell  r.  Boynton,  139  Mass.  244, 
29  N.  E.  655  ;  Tappan  v.  Power  Co.,  151 
N.  E.  703,  16  L.  R.  A.  353.  See  Stearn,  Real  Act.  ; 
Booth,  R.  A. ;    Co.  Litt  238  b. 

To  maintain  a  writ  of  entry,  the  demand- 
ant who  declares  on  his  own  seisin,  and  al- 
leges a  disseisin,  is  required  to  prove  only 
that  he  has  a  right  of  entry  and  need  not 
prove  an  actual  wrongful  dispossession  or  an 
adverse  possession  by  the  tenants;  Twomey 
v.  Linnehan,  161  Mass.  91,  36  N.  E.  590. 


ENURE 


1046 


EPISCOPUS 


ENURE.  To  take  or  have  effect  To  serve 
to  the  use,  benefit,  or  advantage  of  a  person. 
The  word  is  often  written  inure.  A  release 
to  the  tenant  for  life  enures  to  him  in  rever- 
sion ;  that  is,  it  has  the  same  effect  for  him 
as  for  the  tenant  for  life.  A  discharge  of  the 
principal  enures  to  the  benefit  of  the  surety. 

ENVOY.  In  International  Law.  A  diplo- 
matic agent  sent  by  one  state  to  another. 

In  accordance  with  the  rules  adopted  at 
the  Congress  of  Vienna,  in  1815,  envoys  are 
placed  among  diplomatic  agents  of  the  sec- 
ond class.  They  are  not  regarded  as  repre- 
senting the  person  and  dignity  of  their  sov- 
ereigns, and  thus  they  rank  below  ambassa- 
dors. On  the  other  hand,  they  are  accredit- 
ed to  the  sovereign  of  the  state  and,  except 
for  the  obsolete  privilege  of  treating  with 
the  head  of  the  foreign  state  personally,  their 
position  is  not  substantially  different  from 
that  of  an  ambassador  (q.  v.).  1  Opp.  443- 
446. 

EO  INSTANT  I.  At  that  instant;  at  tie 
very  or  same  instant ;  immediately.  1  Bla. 
Com.  196,  249 ;    1  Co.  138 ;    Black,  L.  Diet. 

EORLE  (Sax.).  An  earl.  Blount;  1  Bla. 
Com.  398.    The  governor  of  a  province. 

EPILEPSY.  A  disease  of  the  brain,  which 
occurs  in  paroxysms  with  uncertain  inter- 
vals between  them. 

These  paroxysms  are  characterized  by  the  loss  of 
sensation,  and  convulsive  motions  of  the  muscles. 
When  long  continued  and  violent,  this  disease  is 
very  apt  to  end  in  dementia.  It  gradually  destroys 
the  memory  and  impairs  the  intellect,  and  is  one 
of  the  causes  of  an  unsound  mind. 

A  statute  forbidding  the  marriage  of  epi- 
leptics is  held  not  unconstitutional  as  unjust- 
ly discriminating  against  certain  persons; 
Gould  v.  Gould,  78  Conn.  242,  61  Atl.  604, 
2  L.  R.  A.  (N.  S.)  531.  As  to  the  effect  of 
concealment  of  epilepsy  under  this  statute, 
see  Divorce. 

EPIQUEYA.  In  Spanish  Law.  The  benig- 
nant and  prudent  interpretation  of  the  law 
according  to  the  circumstances  of  the  time, 
place,  and  person.  This  word  is  derived 
from  the  Greek,  and  is  synonymous  with  the 
word  equity.     See  Murillo,  nn.  67,  68. 

EPISCOPACY.  A  form  of  government  by 
diocesan  bishops;  the  office  or  condition  of 
a  bishop. 

EPISCOPALIA.  Synodals,  or  payments 
due  the  bishop. 

EPISCOPUS  (L.  Lat).  In  Civil  Law.  A 
superintendent;  an  inspector.  Those  in 
each  municipality  who  had  the  charge  and 
oversight  of  the  bread  and  other  provisions 
which  served  the  citizens  for  their  daily 
food  were  so  called.     Vicat;   Du  Cange. 

A  bishop.  These  bishops,  or  episcopi,  were 
held  to  be  the  successors  of  the  apostles, 
and  have  various  titles  at  different  times  in 
history  and  according  to  their  different  du- 
ties.    It  was  applied  generally  to  those  who 


had  authority  or  were  of  peculiar  sanctity. 
After  the  fall  of  the  Roman  empire  they 
came  to  have  very  considerable  judicial  pow- 
ers.   Du  Cange;    Vicat;   Calvinus,  Lex. 

EPISTOL/E  (Lat).  In  Civil  Law.  Re- 
scripts; opinions  given  by  the  emperors  in 
cases  submitted  to  them  for  decision. 

Answers  of  the  emperors  to  petitions. 

The  answers  of  counsellors  (juris-con- 
sulta),  as  Ulpian  and  others,  to  questions  of 
law  proposed  to  them,  were  also  called 
epistolcB. 

Opinions  written  out.  The  term  origin- 
ally signified  the  same  as  literce.     Vicat. 

EQUAL    PROTECTION    OF    THE    LAWS. 

The  fourteenth  amendment  of  the  constitu- 
tion of  the  United  States,  among  other  pro- 
visions respecting  the  life,  liberty,  and  prop- 
erty of  citizens,  provides  that  no  state  shall 
"deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws."  This 
provision  has  been  subjected  to  much  judi- 
cial construction.  The  protection  extends 
to  "acts  of  the  state  whether  through  its 
legislative,  its  executive,  or  its  judicial  au- 
thorities"; Scott  v.  McNeal,  154  U.  S.  45,  14 
Sup.  Ct.  1108,  38  L.  Ed.  896 ;  Virginia  v. 
Rives,  100  U.  S.  313,  25  L.  Ed.  667;  Ex 
parte  Virginia,  100  U.  S.  339,  25  L.  Ed.  676 ; 
Neal  v.  Delaware,  103  U.  S.  370,  26  L.  Ed. 
567.  In  Chicago,  B.  &  Q.  R.  Co.  v.  Chicago, 
166  U.  S.  226,  17  Sup.  Ct  5S1,  41  L.  Ed.  979, 
Harlan,  J.,  for  the  court,  said:  "But  it  must 
be  observed  that  the  prohibitions  of  the 
amendment  refer  to  all  the  instrumentalities 
of  the  state,  to  its  legislative,  executive,  and 
judicial  authorities,  and,  therefore,  whoever 
by  virtue  of  public  position  under  a  state 
government  deprives  another  of  any  right 
protected  by  that  amendment  against  dep- 
rivation by  the  state,  'violates  the  constitu- 
tional inhibition,  and,  as  he  acts  in  the  name 
and  for  the  state,  and  is  clothed  with  the 
state's  power,  his  act  is  that  of  the  state.' 
This  must  be  so,  or,  as  we  have  often  said, 
the  constitutional  prohibition  has  no  mean- 
ing, and  'the  state  has  clothed  one  of  its 
agents  with  power  to  annul  or  evade  it' " 
See  Gibson  v.  Mississippi,  162  U.  S.  565,  16 
Sup.  Ct  904,  40  L.  Ed.  1075;  Yick  Wo  v. 
Hopkins,  118  U.  S.  356,  6  Sup.  Ct.  1064,  3.0  L. 
Ed.  220.  That  amendment  conferred  no  new 
and  additional  rights,  but  only  extended  the 
protection  of  the  federal  constitution  over 
rights  of  life,  liberty,  and  property  that 
previously  existed  under  all  state  constitu- 
tions. Prior  to  the  passage  of  this  amend- 
ment "the  laws  of  all  the  states  in  terms 
gave  equal  protection  to  all  white  persons. 
This  amendment,  however,  is  general,  and 
forbids  the  denial  to  any  class  of  persons  the 
equal  protection  of  the  laws  by  any  state; 
and  there  is  no  doubt  that  class  legislation 
is  forbidden;"  State  v.  Holden,  14  Utah,  71, 
46  Pac.  756,  37  L.  R.  A.  103.  "What  must 
constitute  a  denial  of  the  equal  protection 


EQUAL  PROTECTION  OF  THE  LAWS  1047  EQUAL  PROTECTION  OF  THE  LAWS 


of  the  law  will  depend,  in  this  view,  in  a 
large  measure,  upon  what  rights  of  the  law 
have  been  conferred,  or  protection  ext 
under  the  constitution  and  laws  of  the  par- 
ticular state  in  which  the  question  arises. 
As  the  constitution  and  laws  of  the  states 
vary,  the  proposition  that  each  case  must, 
to  an  extent,  depend  upon  its  own  facts,  is 
especially  applicable  to  this  class  of  cases. 
When  the  state  itself  undertakes  to  deal 
with  its  citizens  by  legislation,  it  does  so  un- 
der certain  limitations,  and  it  may  not  sin- 
gle out  a  class  of  citizens,  and  subject  that 
class  to  oppressive  discrimination,  especially 
in  respect  to  those  rights  so  important  as  to 
be  protected  by  constitutional  guaranty. 
That  the  prohibitions  of  that  amendment  are 
now  regarded  as  protecting  the  citizen 
against  a. denial  of  the  equal  protection  of 
the  law,  and  against  taking  property  without 
due  process  of  law,  under  the  power  of  taxa- 
tion, is  a  proposition  clearly  deducible  from 
the  many  causes  in  which  that  question  has 
been  considered ;"  Nashville,  C.  &  St.  L.  Ry. 
v.  Taylor,  8(1  Fed.  168,  185.  See  Privileges 
and  Immunities;  Civil  Rights;  Due  Pro- 
cess of  Law. 

The  guaranties  of  due  process  of  law  and 
of  equal  protection  of  the  laws  are  rights 
secured  to  all  persons  whether  citizens  or 
not.  The  two  are  in  most  cases  treated  to- 
gether, though  occasionally  differentiated. 
The  guaranty  means  as  well  equal  exemp- 
tion from  all  burdens  as  equal  accessibility 
to  the  courts;  In  re  Ah  Fong,  3  Sawy.  144, 
Fed.  Cas.  No.  102;  San  Mateo  County  v.  R, 
Co.,  13  Fed.  722;  Santa  Clara  County  v.  R. 
Co.,  18  Fed.  3S5 ;  and  it  is  not  confined  to 
citizens,  but  applies  to  all  persons,  native 
or  foreign,  within  this  country ;  Fraser  v. 
Torley  Co.,  82  Fed.  257;  In  re  Ah  Fong,  3 
Sawy.  144,  Fed.  Cas.  No.  102;  though  not 
non-residents;  Steed  v.  Harvey,  18  Utah  3G7, 
54  Pac.  1011,  72  Am.  St  Rep.  7S9.  But  in 
State  v.  Ins.  Co.,  70  Conn.  590,  40  Atl.  465, 
66  Am.  St.  Rep.  138,  it  was  said  to  be  only 
for  the  benefit  of  persons  physically  present 
within  the  territorial  jurisdiction  of  the 
state.  A  corporation  is  not  a  citizen  within 
the  meaning  of  the  amendment  securing 
privileges  and  immunities,  but  it  is  a  person 
under  the  equal  protection  clause;  Pembina 
Consol.  Silver  Min.  &  Mill.  Co.  v.  Pennsyl- 
vania, 125  U.  S.  1S1,  8  Sup.  Ct  737,  31  L  Ed. 
650;  McQuire  v.  R.  Co.,  131  la.  340,  108  N. 
W.  !M)2,  33  L.  R.  A.  (N.  S.)  706;  Hammond 
Beef  &  Provision  Co.  v.  Best,  91  Me.  431,  40 
Atl.  338,  II'  L.  R.  A.  52S;  and  so  is  a  rail- 
road corporation;  Smyth  v.  Ames.  169  Q.  S. 
466,  18  Snp.  Ct.  41S,  42  L.  Ed.  SI'.);  and  a 
mutual  insurance  company;  Uul  er  v.  Mar- 
tin, 127  Wis.  412.  105  X.  Vv.  1031,  1135,  3  L. 
R.  A.  (N.  S.)  653,  115  Am.  St.  Rep.  1023,  7 
Ann.  Cas.  400.  But  a  private  corporation  not 
created  by  the  laws  of  the  state  nor  doing 
business  in  it  is  not  within  its  jurisdiction 
so  as  to   invoke  the  protection  of  the  14th 


Amendment;     Blake   v.   McClung,   172    0 
239,  19  Sup.  Ct.  165,  4:;  L.  Ed.  432;    Ilawley 
v.  Hurd,  72   Vt.   122.  47  Atl.  401,  52  L.   R.    A. 
(N.   S.i   195,  82  Am.  St.  Rep.  922;    the  only 
limitation  being  when  the  corporation  is  in 
the  employment  of   tbe   federal  government 
or    in    business    which    is    strictly    Intel 
commerce;    Pembina   Consol.   SJ    er  Min.  & 
Mill.    Co.    v.    Pennsylvania.    125   U.   S.    18 
Sup.  Ct.  737,  31  L.  Ed.  650 

The  amendment  "was  not  intended  to  com- 
pel the  state  to  adopt  an  iron  rule  of  equal 
taxation,"  nor  "to  prevent  a  state  from  ad- 
justing its  system  of  taxation  in  all  proper 
and  reasonable  ways";  Pell's  Gap  R  I 
Pennsylvania,  134  U.  S.  232,  10  Sup.  CL  533, 
33  L.  Ed.  892.  Taxation  must  be  equal  and 
uniform  as  well  as  regards  the  mode  of  as- 
sessment as  in  the  rate  of  charge;  San  I •: 
County  v.  R.  Co.,  13  Fed.  722;  Santa  Clara 
County  v.  R.  Co.,  18  id,  3S5 ;  but  this  may 
be  done  by  different  officers  if  the  method  is 
uniform ;  San  Francisco  &  N.  P.  R.  Co.  v. 
State  Board  of  Equalization,  60  Cal.  12. 

The  prohibition  against  the  denial  of  equal 
protection  of  the  laws  does  not  require  that 
the  law  shall  have  an  equality  of  operation, 
in  the  sense  of  an  Indiscriminate  operation 
on  persons  merely  as  such,  but  on  persons  ac- 
cording to  their  relation.  It  does  not  pre- 
vent states  from  distinguishing,  selecting  and 
classifying  objects  of  legislation  within  a 
wide  range  of  discretion,  provided  only  that 
the  discretion  must  be  based  upon  some 
reasonable  ground ;  Interstate  Consol.  St. 
Ry.  Co.  v.  Massachusetts,  207  U.  S.  79,  28 
Sup.  Ct  26,  52  L  Ed.  Ill,  12  Ann.  Cas.  555; 
affirming  Com.  v.  Ry.  Co.,  187  Ma 
N.  E.  530,  11  L.  R.  A.  (N.  S.)  973,  2  Ann. 
Cas.  419;  some  difference  which  bears  a  just 
and  proper  relation  to  the  classification  and 
not  a  mere  arbitrary  selection;  Magown  v. 
Bank,  170  U.  S.  283,  18  Sup.  Ct.  594,  42  L. 
Ed.  10."7;  Watson  v.  Maryland.  218  D.  S. 
173,  30  Sup.  Ct.  644,  54  L.  Ed.  987.  D  - 
tion  which  regulates  business  may  well  make 
distinctions  dependent  upon  the  degrees  of 
evil  without  being  unreasonable  or  in  con- 
flict with  the  equal  protection  of  the  laws ; 
Heath  &  Mi  Hi  can  Mfg.  Co.  v.  Worst,  2<>7  r. 
S.  338,  2S  Sup.  Ct.  114,  52  L.  Ed.  23a  The 
mere  fact  of  classification  will  not  relieve ; 
it  must  be  based  on  reasonable  grounds  and 
not  mere  arbitrary  selection;  but  it  suffices 
if  the  statute  is  applicable  to  all  persons  un- 
der like  circumstances  and  docs  not  Bfl 
individuals  to  an  arbitrary  exercise  of  pow- 
er; Jones  v.  Brim,  165  0.  S.  180,  17  Sup.  Ct. 
282,  41  I..  Ed.  i'>77:  or  if  a  law  operates  alike 
upon  all  persons  similarly  situated  :  WalstOD 
v.  Nevin,  128  D.  S.  578,  9  Sup.  Ct  192,  .".2  L 
Ed.  51  1  :  or  a  law  or  course  of  proceedings 
has  been  applied  to  any  other  person  in  the 
state  under  similar  circumstances  and  con- 
ditions; Tinsley  v.  Anderson,  171  I'.  S.  101, 
18  Sup.  Ct.  805,  43  L.  Ed.  91.  Legislation 
may  be  limited  as  to  objects  or  territory  if 


EQUAL  PROTECTION  OP  THE  LAWS  1048  EQUAL  PROTECTION  OF  THE  LAWS 


all  persons  subject  to  it  are  treated  alike 
under  like  circumstances  and  conditions; 
Hayes  v.  Missouri,  120  U.  S.  OS,  7  Sup.  Ct. 
350,  30  L.  Ed.  57S;  Giles  v.  Teasley,  193  U. 
S.  148,  24  Sup.  Ct.  359,  48  L.  Ed.  G55.  It 
cannot  discriminate  in  taxation  against  for- 
eign corporations  lawfully  doing  business 
within  the  state;  Southern  R.  Co.  v.  Greene, 
216  U.  S.  400,  30  Sup.  Ct.  2S7,  54  L.  Ed.  536, 
17  Ann.  Cas.  1247. 

"Classification  must  have  relation  to  the 
purpose  of  the  legislature,  but  logical  ap- 
propriateness of  the  inclusion  or  exclusion 
of  objects  or  persons  is  not  required.  A 
classification  may  not  be  merely  arbitrary, 
but  necessarily  there  must  be  great  freedom 
of  discretion  even  though  it  result  in  'ill- 
advised,  unequal  and  oppressive  legisla- 
tion' ;"  Heath  &  Milligan  Mfg.  Co.  v.  Worst, 
207  U.  S.  338,  28  Sup.  Ct.  114,  52  L.  Ed.  236, 
quoting  Mobile  County  v.  Kimball,  102  U.  S. 
691,  26  L.  Ed.  238. 

In  order  to  avoid  denial  of  equal  protec- 
tion of  the  laws  the  police  power  must  be 
exercised  reasonably  and  not  arbitrarily ; 
Yick  Wo  v.  Hopkins,  118  U.  S.  365,  6  Sup.  Ct. 
1064,  30  L.  Ed.  220. 

The  guaranties  for  equal  protection  of  the 
laws  and  of  due  process  of  law  are  not  vio- 
lated by  discrimination  in  the  statute ;  Clark 
v.  Kansas  City,  176  U.  S.  114,  20  Sup.  Ct. 
284,  44  L.  Ed.  392. 

As  there  is  no  vested  right  in  procedure, 
the  guaranty  of  equal  protection  of  the  laws 
is  not  violated  by  change  of  previous  deci- 
sions of  the  state  court  on  questions  of  pro- 
cedure; Backus  v.  Union  Depot  Co.,  169  U. 
S.  557,  18  Sup.  Ct.  445,  42  L.  Ed.  853. 

What  may  be  regarded  as  a  denial  of  the 
equal  protection  of  the  laws  is  a  question 
not  always  easily  determined,  as  the  deci- 
sions of  this  court  and  the  highest  courts  of 
the  states  will  show.  It  is  sometimes  diffi- 
cult to  show  that  a  state  enactment,  having 
its  source  in  a  power  not  controverted,  in- 
fringes rights  protected  by  the  national  con- 
stitution. No  rule  can  be  formulated  that 
will  cover  every  case.  But  upon  this  general 
question  we  have  said  that  the  guaranty  of 
the  equal  protection  of  the  law  means  "that 
no  person  or  class  of  persons  shall  be  de- 
nied the  same  protection  of  the  laws  which 
is  enjoyed  by  other  persons  or  other  classes 
in  the  same  place  and  in  like  circumstances." 
Connolly  v.  Union  Sewer  Pipe  Co.,  184  U.  S. 
540,  558,  22  Sup.  Ct.  431,  46  L.  Ed.  679,  quot- 
ing Bowman  v.  Lewis,  101  U.  S.  22,  25  L.  Ed. 
989;   In  re  Doo  Woon,  18  Fed.  898. 

The  South  Carolina  supreme  court,  in  ref- 
erence to  the  law  imposing  special  liability 
for  fires  caused  by  locomotives,  thus  com- 
ments on  the  federal  cases  "Let  it  ,be  noted 
.  .  .  the  classification  for  the  imposition 
of  special  liability  was  not  affected  by  the 
fact  that  there  were  other  common  carriers 
operating  with  steam  which  might  communi- 
cate  fire  or  whose  employes  might  sustain 


injury  through  the  negligence  of  their  fellow 
servants ;  thus  showing  that  a  classification 
need  not  include  all  engaged  in  a  general 
business,  as  the  business  of  carrying  freight 
and  passengers,  it  may  simply  embrace  a 
more  limited  class,  who  carry  freight  and 
passengers  in  a  particular  way,  or  by  par- 
ticular instrumentalities."  McCandless  v.  R. 
Co.,  38  S.  C.  116,  16  S.  E.  429,  18  L.  R,  A. 
440. 

State  laws  or  official  action  held  not  to 
deny  the  equal  protection  of  the  laws  are : 
Prescribing  rules  of  evidence,  as  by  prevent- 
ing Chinese  from  testifying  in  a  case  where 
a  white  person  is  a  party ;  People  v.  Brady, 
40  Cal.  198,  6  Am.  Rep.  604  (but  under  the 
Civil  Rights  Bill,  negroes  were  entitled  to 
the  benefit  of  this  law ;  People  v.  Washing- 
ton, 36  Cal.  658)  ;  prohibiting  the  landing  of 
lewd  women  from  passenger  steamers;  Ex 
parte  Ah  Fook,  49  Cal.  402;  regulating 
slaughter  houses ;  Slaughter-House  Cases,  16 
Wall.  (U.  S.)  36,  21  L  Ed.  394;  authorizing 
the  recovery  of  double  value  for  property  de- 
stroyed by  railroad  trains ;  Tredway  v.  R. 
Co.,  43  la.  527 ;  excluding  women  from  em- 
ployment in  saloons  or  other  places  where  in- 
toxicating liquor  is  sold;  Ex  parte  Hayes, 
98  Cal.  555,  33  Pac.  337,  20  L.  R.  A.  701; 
Foster  v.  Board  of  Police  Com'rs,  102  Cal. 
483,  37  Pac.  763,  41  Am.  St.  Rep.  194;  State 
v.  Reynolds,  14  Mont.  383,  36  Pac,  449 ;  City 
of  Hoboken  v.  Goodman,  68  N.  J.  L.  217,  51 
Atl.  1092;  Bergman  v.  Cleveland,  39  Ohio 
St.  651 ;  State  v.  Considine,  16  Wash.  358,  47 
Pac.  755;  In  re  Considine,  83  Fed.  157;  but 
contra,  In  re  Maguire,  57  Cal.  604,  40  Am. 
Rep.  125  (and  an  ordinance  making  it  a  mis- 
demeanor for  any  woman  to  go  into  a  bulid- 
ing  where  liquor  is  sold,  or  to  stand  within 
fifty  feet  of  such  a  building,  was  held  an  un- 
necessary interference  with  individual  liber- 
ty ;  Gastenau  v.  Com.,  108  Ky.  473,  56  S.  W. 
705,  49  L.  R.  A.  Ill,  94  Am.  St.  Rep.  380)  ; 
prohibiting  women  from  frequenting  places 
for  the  sale  of  intoxicating  liquors  ;  Ex  parte 
Smith,  38  Cal.  709;  People  v.  Case,  153  Mich. 
98,  116  N.  W.  558,  18  L.  R.  A.  (N.  S.)  657; 
Cronin  v.  Adams,  192  U.  S.  108,  24  Sup.  Ct. 
219,  48  L.  Ed.  365,  affirming  Adams  v.  Cron- 
in, 29  Colo.  488,  69  Pac.  590,  63  L.  R.  A.  61 ; 
imposing  more  severe  penalties  for  adultery 
between  persons  of  different  races;  Ellis  v. 
State,  42  Ala.  525;  Ford  v.  State,  53  Ala. 
150 ;  Green  v.  State,  58  Ala.  190,  29  Am,  Rep. 
739;  Pace  v.  Alabama,  106  U.  S.  583,  1  Sup. 
Ct.  637,  27  L.  Ed.  207;  forbidding  marriages 
between  whites  and  blacks ;  Hoover  v.  State, 
59  Ala.  57 ;  Ex  parte  Francois,  3  Woods  367, 
Fed.  Cas.  No.  5,047;  Ex  parte  Kinney,  3 
Hughes  9,  Fed.  Cas.  No.  7,825 ;  or  declaring 
such  marriages  null  and  void;  In  re  Hobbs, 
1  Woods  537,  Fed.  Cas.  No.  6,550;  regulating 
the  charges  of  storage  warehouses ;  Munn  v. 
Illinois,  94  U.  S.  113,  24  L.  Ed.  77 ;  Munn  v. 
People,  69  111.  8.0;  providing  for  territorial 
and  municipal  regulations  for  different  part* 


EQUAL  PROTECTION  OF  THE  LAWS  1049  EQUAL  PROTECTION  OF  THE  LAWS 


of  the  state ;  Missouri  v.  Lewis,  101  U.  S.  22, 
25  L.  Ed.  9S9;  forbidding  bankers  and  bro- 
kers, knowing  that  they  are  insolvent,  to  re- 
ceive money;  Baker  v.  State,  54  Wis.  3GS,  12 
X.  W.  12;  imposing  a  tax  on  corporations 
measured  by  the  amount  of  dividends  paid, 
part  of  such  dividends  being  derived  from 
capital  invested  in  United  States  bonds  ex- 
empted from  taxation;-  Home  Ins.  Co.  v. 
New  York.  134  U.  S.  504,  10  Sup.  Ct.  593,  33 
I*  Ed.  1025;  the  provision  of  the  Mississippi 
constitution  prescribing  a  test  of  literacy  for 
voting;  Williams  v.  .Mississippi,  170  U.  S. 
213,  18  Sup.  Ct.  583,  42  L.  Ed.  1012;  au  or- 
der dismissing  a  writ  of  habeas  coy-pus  and 
remanding  to  custody  a  prisoner  held  in  con- 
tempt when  it  appeared  that  the  same  proce- 
dure would  be  applied  to  any  other  person 
in  the  state  under  similar  circumstances  and 
conditions;  Tinsley  v.  Anderson,  171  U.  S. 
101,  IS  Sup.  Ct.  S05,  43  L.  Ed.  91;  as  a 
penalty  for  non-compliance  with  police  regu- 
lations ;  Dow  v.  Beidelman,  49  Ark.  455,  5 
S.  W.  718;  allowing  a  reasonable  attorney's 
fee  as  part  of  a  judgment  against  a  railroad 
company  for  damage  by  fire ;  Atchison,  T. 
&  S.  F.  R.  Co.  r.  Mattbews,  174  U.  S.  90,  19 
Sup.  Ct.  009,  43  L.  Ed.  909  (distinguishing 
Gulf,  C.  &  S.  F.  R.  Co.  v.  Ellis,  165  U.  S.  150, 
17  Sup.  Ct.  255,  41  L.  Ed.  GOG,  where  a  stat- 
ute, allowing  such  fees  in  suits  against  rail- 
road companies,  for  ordinary  claims,  was 
held  unconstitutional) ;  allowing  a  defendant 
on  trial  for  homicide  a  less  number  of  chal- 
lenges with  a  struck  jury  than  an  ordinary 
one;  Brown  v.  Xew  Jersey,  175  U.  S.  172,  20 
Sup.  Ct.  77,  44  L.  Ed.  119;  prohibiting  any 
person,  corporation  or  firm  from  issuing  any 
order,  etc.,  payable  otherwise  than  in  money 
— what  are  commonly  known  as  store  or- 
ders ;  Johnson,  Lytle  &  Co.  v.  Spartan  Mills, 
68  S.  C.  339,  47  S.  E.  095,  1  Ann.  Cas.  409; 
Frorer  v.  People,  141  111.  171,  31  N.  E.  395, 
16  L.  R.  A.  492;  establishing  separate 
schools  for  colored  children;  Bertonneau  v. 
Board,  3  Woods  177.  Fed.  Cas.  Xo.  1,361; 
Ward  v.  Flood,  4S  Cal.  36,  17  Am.  Rep.  405 ; 
State  v.  McCann,  21  Ohio  St.  198 ;  Chrisman 
v.  City  of  Brookhaven,  70  Miss.  477,  12 
South.  458;  Corey  v.  Carter.  48  Ind.  327,  17 
Am.  Rep.  738;  see  Marshall  v.  Donovan,  10 
Bush.  (Ky.)  GS1;  denial  of  injunction  against 
maintaining  a  high  school  for  white  children 
while  failing  to  maintain  one  for  colored  chil- 
dren;  Cummiug  v.  County  Board  of  Educa- 
tion, 175  U.  S.  528,  20  Sup.  Ct.  197,  44  L.  Ed. 
262;  imposing  upon  railroad  companies  fu- 
ture liabilities  for  damages  to  employees  by 
negligence  of  their  fellow  servants,  etc.,  since 
it  met  a  particular  necessity,  and  all  rail- 
road companies  without  distinction  were 
made  subject  to  the  same  liability ;  Missouri 
Pac.  Ry.  Co.  v.  Mackey,  127  U.  S.  205,  8  Sup. 
Ct  1161,  32  L,  Ed.  107 ;  Tullis  v.  R.  Co.,  175 
U.  S.  348,  20  Sup.  Ct.  136,  44  L.  Ed.  192.  mak- 
ing railroad  companies  liable  for  property 
destroyed    by    fire    commuuicated\  by    their 


locomotives,  even  though  the  liability  did  not 
depend   on    any  ice    of    the    railroad 

company;    St  Louis  &  S.  F.  Ry.  Co.  v.  Math- 
ews,  IT.   U.  S.  1,  17  Sup.  Ct.  24:;,  41  L.   Ed. 
611;    McCandless  v.  B,  Co.,  38  S.  C.   116,  1G 
S.  E.  4-_*:>,  18  L.  It.  A.    140;    giving  -hi 
for  sheep  grazing  on  public  lands;    Bown  \. 
Walling,   204  U.   S.  320,  L'7   Sup.  ct.   292,   :.l 
L.    Ed.    503;     taxing   transfers   of   cor; 
stock;    Xew  York  v.  Beardon,  204  D.  S.  152, 
27  Sup.  Ct.  188,  51    L.  Ed.  415,  9  Am 
736;    the  separation  of  white  and  blacl 
sons  in  public  com  Chilton   • 

Co.,  114  Mo.  8S,  21  S.  W.  457,  19  L.  B.  A 
1  .  S.  v.  Stanley,  109  E.  S.  3,  3  Sup.  Ct.  is,  23 
I..  Ed.  835;  West  Chester  &  P.  R.  < 
Miles,  55  Pa.  209,  93  Am.  Dec.  744 ;  Ander- 
son v.  R.  Co.,  G2  Fed.  40;  or  in  theatres  if 
equally  good  seats  were  provided  for  both; 
Younger  v.  Judah,  ill  Mo.  303,  19  S.  W.  1109, 

16  L.  R.  A.  558,  33  Am.  St.  Rep.  527  (but  to 
require  colored  persons  to  occupy  particular 
seats  was  held  a  \iolation  of  the  Illinois 
Civil  Rights  Act  of  June  10,  1885;  Baylies 
v.  Curry,  128  111.  2S7,  21  X.  EL  595). 

In  Adair  v.  U.  S.,  208  D.  S.  161,  28  Sup.  Ct. 
277,  52  L.  Ed.  43G,  13  Ann.  Cas.  764,  C 
ing  U.  S.  v.  Adair,  152  led.  737,  it  was  held 
that  congress  could  not  make  it  a  criminal 
offence  against  the  United  States  for  a  car- 
rier engaged  in  interstate  commerce  to  dis- 
charge an  employe  simply  because  of  mein- 
bership  in  a  labor  organization,  and  that 
the  provision  to  that  effect  in  section  10  of 
the  Act  of  June  1,  1898,  was  an  invasion  of 
personal  liberty  as  well  as  of  the  right  of 
property  guaranteed  by  the  Yth  Amendment 
to  the  constitution  and  therefore  unen 
able. 

Statutes  held  to  violate  the  guaranty  of 
"ecpjal  protection  of  the  laws  are:  A  law 
taxing  miners,  which  discriminates  between 
persons  of  different  races ;  U.  S.  v.  Jfl 
3  Sawy.  59,  Fed.  Cas.  No.  15,459 ;  excluding 
colored  children  from  the  benefits  of  the  pub- 
lic school  system  ;  Ward  v.  Flood,  4S  Cal.  30, 

17  Am.  Rep.  405;  or  from  sharing  in  the  use 
of  the  common  school  fund;  Dawson  v.  Lee, 
S3  Ky.  49  (but  not  establishing  separate 
schools,  see  supra) ;  discriminating  against 
non-residents,    with    respect   to    legal 

dies;  Pearson  v.  City  of  Portland,  69  Me. 
27S,  31  Am.  Rep.  27G ;  discriminating 
tween  Chinese  and  other  aliens ;  Baker  v. 
Portland,  5  Sawy.  566,  Fed.  Cas.  Xo.  777: 
In  re  Parrott,  6  Sawy.  349.  1  Fed.  4S1;  a  city 
ordinance  requiring  the  cutting  of  a  prison- 
er's hair,  it  being  considered  more  degrading 
to  the  Chinese;  Ho  Ah  Kon  v.  Nun) 
Sawy.  552,  Fed  >.  6,546;    forbidding 

the  employment  of  Chinese;  In  re  Parrott,  1 
Fed.  4S1.  6  Sawy.  349;  prohibiting  aliens 
incapable  of  acquiring  citizenship  from  fish- 
ing in  public  waters;  In  re  Ah  Chong,  '"> 
Sawy.  451,  2  Fed.  733;  authorizing  the  over- 
seers of  the  poor  to  commit  paupers  and 
vagrants    to    the    workhouse    without    trial: 


EQUAL  PROTECTION  OF  THE  LAWS  1050  EQUAL  PROTEOTION  OF  THE  LAWS 


City  of  Portland  v.  City  of  Bangor,  Go  Me. 
120,  20  Am.  Rep.  6S1 ;  prescribing  a  penalty 
and  counsel  fees  in  suits  on  insurance  poli- 
cies;  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Ellis,  1G5 
U.  S.  150,  17  Sup.  Ct.  255,  41  L.  Ed.  666; 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Williams,  49 
Ark.  492,  5  S.  W.  883 ;  San  Antonio  &  A.  R. 
Ry.  Co.  v,  Wilson  (Tex.)  19  S.  W.  910;  Wil- 
der v.  Ry.  Co.,  70  Mich.  3S2,  38  N.  W.  2S9; 
Lafferty  v.  Ry.  Co.,  71  Mich.  35,  38  N.  W. 
660;  New  York  Life  Ins.  Co.  v.  Smith 
(Tex.)  41  S.  W.  GSO.  But  it  is  said  in  a 
dissenting  opinion  in  Gulf,  C.  &  S.  F.  Ry.  Co. 
v.  Ellis,  165  U.  S.  150,  17  Sup.  Ct  255,  41  L. 
Ed.  666:  "The  constitutionality  of  statutes 
allowing  plaintiffs  only  to  recover  an  at- 
torney's fee  as  part  of  the  judgment  in  par- 
ticular classes  of<  actions  selected  by  the 
legislature  appears  to  have  been  upheld  by 
the  courts  of  most  of  the  states  in  which  it 
has  been  challenged ;  Kansas  Pac.  Ry.  Co. 
v.  Mower,  16  Kan.  573 ;  Kansas  Pac.  Ry.  Co. 
v.  Yanz,  id.  583;  Missouri,  K.  &  T.  Ry.  Co. 
v.  Simonson,  64  Kan.  802,  68  Pac.  653,  57  L. 
R.  A.  765,  91  Am.  St.  Rep.  248 ;  Peoria,  D.  & 
E.  Ry.  Co.  v.  Duggan,  109  111.  537,  50  Am. 
Rep.  619;  Vogel  v.  Pekoe,  157  111.  339,  42  N. 
E.  386,  30  L  R.  A.  491;  Dow  v.  Beidelman, 
49  Ark.  455,  5  S.  W.  718 ;  Perkins  v.  Ry.  Co., 
103  Mo.  52,  15  S.  W.  320,  11  L.  R.  A.  426; 
Burlington,  C.  R.  &  N.  Ry.  Co.  v.  Dey,  82 
la.  312,  48  N.  W.  98,  12  L.  R.  A.  436,  31  Am. 
St.  Rep.  477 ;  Wortman  v.  Kleinschmidt,  12 
Mont.  316,  30  Pac.  280;  Gulf,  C.  &  S.  F.  Ry. 
Co.  v.  Ellis,  87  Tex.  19,  26.  S.  W.  9S5;  Cam- 
eron v.  Ry.  Co.,  63  Minn.  384,  65  N.  W.  652, 
31  L.  R.  A.  553 ;  Morris-Scarboro-Moffit  Co. 
v.  Express  Co.,  146  N.  C.  167,  59  S.  E.  667,  15 
L.  R.  A.  (N.  S.)  983;  Gulf,  C.  &  S.  F.  Ry. 
Co.  v.  Ellis,  165  U.  S.  150,  17  Sup.  Ct.  255,  41 
L.  Ed.  666,  where  it  is  further  said :  "The 
legislature  of  a  state  must  be  presumed  to 
have  acted  from  lawful  motives,  unless  the 
contrary  appears  upon  the  face  of  the  stat- 
ute. If,  for  instance,  the  legislature  of 
Texas  was  satisfied,  from  observation  and 
experience,  that  railroad  corporations  with- 
in the  state  were  accustomed,  beyond  other 
corporations  or  persons,  to  unconscionably 
resist  the  payment  of  such  petty  claims,  with 
the  object  of  exhausting  the  patience  and 
means  of  the  claimants  by  prolonged  litiga- 
tion and  perhaps  repeated  appeals,  railroad 
corporations  alone  might  well  be  required, 
when  ultimately  defeated  in  such  a  claim,  to 
pay  a  moderate  attorney's  fee,  as  a  just, 
though  often  inadequate,  contribution  to  the 
expenses  to  which  they  had  put  the  plain- 
tiff in  establishing  a  rightful  demand." 

An  act  was  held  void  providing  that  a 
prisoner  who  escaped  and  was  retaken 
should  be  punished  by  imprisonment  for  a 
term  equal  to  his  original  one ;  In  re  Mallon, 
16  Idaho  737,  102  Pac.  374,  22  L.  R.  A.  (N. 
S.)  1123;  so  also  a  statutory  provision  for 
the  imprisonment  of  one  who  after  receiving 
advances  commits  a  breach  of  a  contract  for 


farm  labor;  Ex  parte  Hollman,  79  S.  C.  9, 
GO  S.  E.  19,  21  L.  R.  A.  (N.  S.)  242  with 
note,  14  Ann.  Cas.  1105;  and  a  statute  regu- 
lating railroad  rates,  in  which  the  penalties 
for  violation  were  so  excessive  and  enormous 
as  to  deter  and  intimidate  parties  affected 
from  testing  its  validity  in  the  courts ;  Ex 
parte  Young,  209  U.  S.  123,  28  Sup.  Ct.  441, 
52  L.  Ed.  714,  13  L.  R.  A.  (N.  S.)  932,  14 
Ann.  Cas.  1164. 

When  a  state,  either  through  its  legisla- 
ture, courts,  or  administrative  officers,  ex- 
cludes persons  of  the  African  race,  solely  be- 
cause of  race  or  color,  from  serving  as  grand 
jurors  in  the  prosecution  of  a  person  of  that 
race,  the  equal  protection  of  the  laws  is  de- 
nied him  and  a  judgment  of  the  state  court, 
sustaining  the  conviction  will  be  reversed ; 
Carter  v.  Texas,  177  U.  S.  442,  20  Sup.  Ct. 
687,  44  L.  Ed.  839;  Strauder  v.  West  Vir- 
ginia, 100  U.  S.  303,  25  L.  Ed.  664;  Neal  v. 
Delaware,  103  U.  S.  370,  26  L.  Ed.  567 ;  Gib- 
son v.  Mississippi,  162  U.  S.  5G5,  16  Sup.  Ct. 
905,  40  L.  Ed.  1075 ;  but  statutes  prescribing 
counsel  fees  have  been  in  some  distinguish- 
ing cases  upheld,  as  in  the  case  of  wrongful- 
ly discharged  railroad  employees ;  St.  Louis. 
I.  M.  &  S.  Ry.  Co.  v.  Paul,  173  U.  S.  409,  19 
Sup.  Ct.  419,  43  L.  Ed.  746;  or  statutes 
against  railroad  companies  for  damage  by 
fire  from  locomotives;  Atchison,  T.  &  S.  F. 
R.  Co.  v.  Matthews,  174  U.  S.  96,  19  Sup.  Ct. 
609,  43  L.  Ed.  909;  and  a  law  requiring 
monthly  payment  of  corporation  employees; 
Skinner  v.  Min.  Co.,  96  Fed.  743;  or  com- 
pelling railroad  companies  to  pay  employees 
at  the  time  of  discharge ;  St  Louis,  I.  M.  & 
S.  Ry.  Co.  v.  Paul,  64  Ark.  83,  40  S.  W.  705, 
37  L.  R.  A.  504,  62  Am.  St.  Rep.  154 ;  or  to 
furnish  free  return  transportation  to  ship- 
pers of  live  stock ;  George  v.  Ry.  Co.,  214  Mo. 
551,  113  S.  W.  1099,  127  Am.  St  Rep.  690; 
an  act  punishing  any  one  who  by  threats  or 
extortion  obtains  money  from  citizens  or  res- 
idents of  a  state;  Greene  v.  State,  83  Neb. 
84,  119  N.  W.  6,  131  Am.  St  Rep.  626 ;  mak- 
ing it  a  misdemeanor  to  admit  a  child  under 
sixteen  to  theatres  except  entertainments  on 
piers ;  In  re  Van  Home.  74  N.  J.  Eq.  600,  70 
Atl.  986 ;  giving  the  owner  of  live  stock  acci- 
dentally killed  or  destroyed  on  a  railroad 
track  double  its  value ;  Atchison  &  N.  R.  Co. 
v.  Baty,  6  Neb.  37,  29  Am.  Rep.  356 ;  one  re- 
quiring owners  and  operators  of  coal  mines 
to  weigh  coal  in  a  certain  specified  manner; 
Millett  v.  People,  117  111.  294,  7  N.  E.  631, 
57  Am.  Rep.  869. 

Probably  the  most  numerous  cases  requir- 
ing the  construction  of  this  guaranty  have 
arisen  under  statutes  establishing  some 
classification  of  persons,  property  or  occupa- 
tions. 

The  classification  "must  always  rest  upon 
some  difference  which  bears  a  reasonable 
and  just  relation  to  the  act  in  respect  of 
which  the  classification  is  proposed,  and  can 
never  be  made  arbitrarily  and  without  any 


EQUAL  PROTECTION  OF  THE  LAWS     Ufti     EQUAL  PROTECTION  OF  THE  LAWS 


such  basis.  .  .  .  But  arbitrary  selection 
can  never  be  justified  by  calling  it  Cli 
cation.  The  equal  protection  demanded  by 
the  Fourteenth  Amendment  forbids  tins. 
.  .  .  It  is  apparent  that  the  mere  fact  of 
classification  is  not  sufficient  to  relii 
statute  from  the  reach  of  the  equality  clause 
of  the  Fourteenth  Amendment,  and  that  in 
all  cases  it  must  appear  not  only  that  a 
classification  has  been  made,  but  also  that 
it  is  one  based  upon  some  reasonable  ground 
— some  difference  which  bears  a  just  and 
proper  relation  to  the  attempted  classifica- 
tion— and  is  not  a  mere  arbitrary  selection." 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Ellis,  165  U.  S. 
150,  17  Sup.  Ct.  255,  41  L.  Ed.  666,  quoted  in 
Connolly  v.  Pipe  Co.,  184  U.  S.  540,  560,  22 
Sup.  Ct  431,  40  L.  Ed.  070;  Cotting  v.  Stock 
Yards  Co.,  183  U.  S.  79,  22  Sup.  Ct.  30,  46 
L.  Ed.  92 ;  Bachtel  v.  Wilson,  204  U.  S.  41,  27 
Sup.  Ct.  24.",,  51  L,  Ed.  357. 

"The  equal  protection  of  the  laws  which, 
by  the  E\>urteenth  Amendment,  no  state  can 
deny  to  the  individual,  forbids  legislation, 
in  whatever  form  it  may  be  enacted,  by 
which  the  property  of  an  individual  is,  with- 
out compensation,  wrested  from  him  for  the 
benefit  of  another  or  of  the  public."  Cotting 
v.  Stock  Yards  Co.,  183  U.  S.  79,  87,  22  Sup. 
Ct  30,  46  L.  Ed.  92  (quoting  Reagan  v.  Loan 
&  Trust  Co.,  154  U.  S.  362,  399,  14  Sup.  Ct. 
1047,  38  L.  Ed.  1014),  where  it  was  held  that 
a  classification  between  stockyards  doing  a 
large  business  and  those  doing  a  small  busi- 
ness was  invalid. 

A"  state  may  without  violating  the  guaran- 
ty put  into  one  class  all  engaged  in  business 
of  a  special  and  public  character  and  require 
them  to  perform  a  duty  which  they  can  do 
better  and  more  quickly  than  others,  and  im- 
pose a  penalty  for  non-performance ;  Sea- 
board Air  Line  Ry.  v.  Seegers,  207  U.  S.  73, 
28  Sup.  Ct.  28,  52  L.  Ed.  10S;  where  a  penal- 
ty for  the  failure  of  a  railroad  to  adjust 
and  average  claims  within  forty  days  was 
held  constitutional. 

Mere  direction  of  the  state  law  that  under 
given  circumstances  the  venue  shall  be  chang- 
ed does  not  violate  the  equal  protection  of 
the  laws;  Cincinnati  Street  Ry.  Co.  v.  Snell, 
193  U.  S.  30,  24  Sup.  Ct  319,  48  L.  Ed.  604  : 
where  it  was  said:  "But  it  is  clear  that  the 
Fourteenth  Amendment  in  no  way  under- 
takes to  control  the  power  of  a  state  to  de- 
termine by  what  process  legal  rights  may  be 
asserted  or  legal  obligations  enforced,  pro- 
vided the  method  of  procedure  adopted  for 
these  purposes  gives  reasonable  notice  and 
affords  a  fair  opportunity  to  be  heard  before 
the  issues  are  decided."  "It  is  fundamental 
rights  which  the  Fourteenth  Amendment 
safeguards  and  not  the  mere  form  which  a 
state  may  see  proper  to  designate  for  the  en- 
forcement and  protection  of  such  rights." 

The  following  statutes  have  been  held  to 
enact  a  reasonable  classification,  valid  as 
not   denying   equal   protection  of   the   laws: 


DistinguJ  shing  bet     een  street  railways  and 
steam  railroads  in  Imposing  a   tax;    £ 
nab,  T.  &  I.  of  II.   Ry.  Co.  V.  Savannah,  198 
U.  S.  392,  25  Sup.  19  L,   Ed. 

between  life  and  health  com]  l  lire, 

marine  and  inland  insur  <  with 

respect  to  taxation;  Fidelity  Mut 
v.  Mettler,  185  D.  s  .j,  44 

L.  Ed.  922;  between  bitumh 
and  block  coal  mines  as  to  working;  I 
v.  Indiana,  229  1.  S.  26,  33  Sup.  I 

L.   Ed.  ;   a  distinction  in  inheritan 

laws  between  lineal  and  collateral 
Billings  v.  Illinois,  1S8  U.  S.  97,  2 
272.  47  L.  Ed.  400;  as  also  the  ex 
step-children  from  the  collateral  inheritance 
tax  on  bequests  and  devises  from  step-par- 
ents; Com.  v.  Randall,  -J-'.",  Pa.   197,  7::  AtL 
1109;   the  exemption    in   a   medical    ref 
tion  act  of  those  who  had  practiced  before  a 
certain  date  or  gratuitously  or  in  a  hospital ; 
Watson  v.   Maryland,  218   I".   S.   17."-.  30  Sup. 
Ct.   644,  54  L.    Ed.  987;   between    individuals 
and  corporations,   the  classification   between 
the  two   being  approved  because  of  the  dif- 
ference of  the  power   which   the  state  may 
exercise  over  the   doing  of   business    within 
its  borders  by  an  individual  on  the  one  band 
or   a   corporation   on   the   other:    Ham 
Packing  Co.  v.  Arkansas.   212  D.   S.   322,  20 
Sup.  Ct.  370,  53  L.  Ed.  530,  15  Ann.  .<  !as.  645 : 
of  a   municipal  ordinance  distinguishing  be- 
tween those   having  cows   inside  and   those 
outside  a  city  ;  Adams  v.  City  of  Milwaukee, 

228  U.  S.  572,  33  Sup.  Ct.  610,  57  L.  Ed.  ; 

a  provision  of  one  gas  rate  act  for  the  mu- 
nicipality and  another  for  individual  con- 
sumers; Willcox  v.  Gas  Co..  212  U.  S.  19, 
29  Sup.  Ct.  192,  53  L.  Ed.  3S2.  15  Ann.  Cas. 
1034 ;  a  discrimination  between  the  residen- 
tial and  commercial  portions  of  a  city  as  to 
the  height  of  buildings  based  on  practical 
and  not  merely  aesthetic  grounds;  Welch  v. 
Swasey.  214  U.  S.  91,  29  Sup.  Ct.  567,  53  I- 
Ed.  92";  or  excepting  churches  from  a  stat- 
ute limiting  the  height  of  buildings; 
ran  v.  Preston,  108  Md.  220,  70  Atl.  11".  2:; 
L.  R.  A.  (X.  S.)  110:?.  120  Am.  St.  Rep.  432, 
15  Ann.  ('as.  10  IS;  a  discrimination  by  a  mu- 
nicipal corporation  for  the  purpose  of  taxa- 
tion between  automobiles  and  other  vehicles; 
Kersey  v.  Terre  Haute,  161  Ind.  171.  68  X.  E. 
1027;  lion    of    distilled    spirits     in 

bond  as  distinguished  from  other  property  in 
regard  to  the  payment  of  interest  on  t. 
Thompson    v.   Kentucky,   209   U.  S.   31 
Sup.  ct.  533,  52  L.   Ed. 

So  of  the  following:  A  state  statute 
imposing  a  license  tax  on  persons  compound- 
ing, rectifying,  adulterating  or  blending  dis- 
tilled spirits  does  not  deny  equal  protection 
of  the  laws  because  it  discriminates  in  favor 
of  the  distilleries  and  rectifiers  or  straight 
distilled  spirits;  Brown-Fonnan  Co.  v.  Com- 
monwealth of  Kentucky,  217  l".  s.  563,  30 
Sup.  ct.  578,  54  I..  Ed.  883,  where  the  • 
accepted    the    construction    by    the    highest 


EQUAL  PROTECTION  OF  THE  LAWS  1052  EQUAL  PROTECTION  OF  THE  LAWS 


court  of  the  state  that  the  tax  in  question 
was  not  a  property  tax  but  a  license  tax  im- 
posed on  the  doing  of  a  business.  Other 
classifications  held  valid  are  one  prohibiting 
drumming  or  soliciting  on  trains  for  any  ho- 
tel, lodging  house,  eating  house,  bath  house, 
physician,  masseur,  surgeon  or  other  medi- 
cal practitioner;  Williams  v.  Arkansas,  217 
U.  S.  79,  30  Sup.  Ct.  493,  54  L.  Ed.  673,  18 
Ann.  Cas.  865,  affirming  85  Ark.  470,  108  S. 
W.  838,  26  L.  R.  A.  (N.  S.)  4S2,  122  Am.  St. 
Rep.  47  (where  as  in  some  other  cases  the 
statute  was  said  by  the  court  to  meet  an  ex- 
isting condition  which  was  required  to  be 
met)  ;  of  express  companies  with  railroad 
and  telegraph  companies  as  subject  to  the 
unit  rule;  Adams  Exp.  Co.  v.  Ohio  State 
Auditor,  165  U.  S.  194,  17  Sup.  Ct.  305,  41 
L.  Ed.  683,  where  the  court  said  that  there 
was  "doubtless  a  distinction  between  the 
property  of  railroad  and  telegraph  companies 
and  that  of  express  companies,  the  physical 
unity  existing  in  the  former  is  lacking  in 
the  latter ;  but  there  is  the  same  unity  in  the 
use  of  the  entire  property  for  one  specific 
purpose  and  there  are  the  same  elements  of 
value  arising  from  such  use."  The  case  in- 
volved the  constitutionality  of  an  act  requir- 
ing the  apportionment  of  the  value  of  the 
property  of  the  express  companies  among  the 
several  counties,  in  which  they  did  business, 
in  the  proportion  which  the  gross  receipts 
in  each  county  bore  to  the  gross  receipts  in 
the  state  and  provided  for  a  tax  for  county 
purposes  on  such  proportion. 

A  statute  defining  express  companies  as 
those  carrying  on  the  business  of  transporta- 
tion under  contracts  with  steamboat  com- 
panies or  railroads  did  not  invidiously  dis- 
criminate as  to  express  companies  by  ex- 
empting other  companies  from  carrying  ex- 
press matter  in  vehicles  of  their  own; 
Pacific  Exp.  Co.  v.  Seibert,  142  U.  S.  339,  12 
Sup.  Ct.  250,  35  L.  Ed.  1035 ;  nor  did  a  state 
license  tax  on  the  business  of  refining  sugar 
and  molasses,  by  exempting  planters  and 
farmers  refining  their  own  sugar  and  molas- 
ses, deny  equal  protection  of  the  laws ;  Amer- 
ican Sugar  Refining  Co.  v.  Louisiana,  179  U. 
S.  89,  21  Sup.  Ct.  43,  45  L.  Ed.  102 ;  nor  those 
which  adjust  the  revenue  laws  of  the  state  to 
favor  certain  industries ;  Quong  Wing  v.  Kir- 
kendall,  223  U.  S.  59,  32  Sup.  Ct.  192,  56  L.  Ed. 
350;  nor  a  collateral  inheritance  tax  impos- 
ing a  higher  rate  on  strangers  in  blood  and 
on  larger  sums ;  Magoun  v.  Sav.  Bank,  170 
U.  S.  283,  18  Sup.  Ct.  594,  42  L.  Ed.  1037. 
The  objection  must  come- from  one  claiming 
to  be  discriminated  against;  Darnell  v.  In- 
diana, 226  U.  S.  390,  33  Sup.  Ct.  120,  57  L. 
Ed.  267,  following  New  York  v.  Reardon,  204 
U.  S.  152,  27  Sup.  Ct.  188,  51  L.  Ed.  415,  9 
Ann.  Cas.  736,  distinguishing  Spraigue  v. 
Thompson,  118  U.  S.  90,  6  Sup.  Ct.  988,  30 
L.  Ed.  115. 
A  state  statute   providing   that   "all   tele- 


graph companies  doing  business  in  this  state 
shall  be  liable  in  damages  for  mental  anguish 
or  suffering  even  in  the  absence  of  bodily  in- 
jury or  pecuniary  loss  for  negligence  in  re- 
ceiving, transmitting  or  delivering  messages" 
is  based  upon  a  reasonable  and  not  an  arbi- 
trary classification  and  is  not  an  unconstitu- 
tional discrimination  against  telegraph  com- 
panies ;  Ivy  v.  Tel.  Co.,  165  Fed.  371 ;  nor  is 
one  which  recognizes  a  difference  between 
ordinary  vehicles  and  electric  cars;  Detroit, 
Ft.  W.  &  B.  I.  Ry.  v.  Osborn,  189  U.  S.  383, 
23  Sup.  Ct.  540,  47  L.  Ed.  860,  wbere  it  was 
held  that  the  commissioner  of  railroads  had 
power  to  require  an  electric  company  to  in- 
stall safety  devices  and  share  the  cost  with 
the  steam  railroad  on  the  same  street  not- 
withstanding -the  latter  was  the  junior  occu- 
pant. The  exception  of  newspapers,  etc.,  in 
a  law  forbidding  the  use  of  the  flag  for  ad- 
vertising purposes,  does  not  violate  the  pro- 
hibition; Halter  v.  Nebraska,  205  U.  S.  34, 
27  Sup.  Ct.  419,  51  L.  Ed.  696,  10  Ann.  Cas. 
525 ;  nor  does  singling  out  the  milk  business, 
in  a  city,  as  a  proper  subject  of  regulation ; 
New  York  v.  Van  De  Carr,  199  U.  S.  552,  26 
Sup.  Ct.  144,  50  L.  Ed.  305 ;  nor  the  selection 
of  mine  owners  as  a  class  to  be  subjected  to 
responsibility  for  the  defaults  of  certain  em- 
ployees; Wilmington  Mining  Co.  v.  Fulton, 
205  U.  S.  60,  27  Sup.  Ct  412,  51  L.  Ed.  708. 
Classification  was  held  proper  between 
itinerant  dealers  in  sewing  machines  and 
those  selling  in  regularly  established  places 
of  business ;  Singer  Sewing  Mach.  Co.  v. 
Brickell,  199  Fed.  654;  and  also  one  of  rail- 
road employees  as  distinct  from  those  of  oth- 
er carriers;  Mondou  v.  R.  Co.,  223  U.  S.  1, 
32  Sup.  Ct.  169,  56  L.  Ed.  327,  38  L.  R.  A.  (N. 
S.)  44;  and  a  statute  prohibiting  the  sale  of 
adulterated  milk;  St.  John  v.  New  York,  201 
U.  S.  633,  26  Sup.  Ct.  554,  50  L.  Ed.  896,  5 
Ann.  Cas.  909;  and  one  regulating  the  sale 
of  mixed  paints  and  requiring  a  label  show- 
ing the  ingredients  is  not  an  unconstitution- 
al discrimination  against  the  manufacture 
and  sale  of  paste  paint,  which  is  a  substan- 
tial part  of  the  paint  business ;  Heath  &  Mil- 
ligen  Mfg.  Co.  v.  Worst,  207  U.  S.  338,  28 
Sup.  Ct.  114,  52  L.  Ed.  236;  nor  a  statute 
forbidding  the  employment  of  workingmen 
for  more  than  eight  hours  a  day  in  mines 
and  in  the  smelting  reduction  or  refining 
of  ores  and  metals;  Holden  v.  Hardy,  169 
U.  S.  366,  18  Sup.  Ct.  383,  42  L.  Ed.  780  (and 
see  comments  thereon  in  Johnson,  Lytle  & 
Co.  v.  Mills,  68  S.  C.  339,  47  S.  E.  695,  1  Ann. 
Cas.  409)  ;  a  statute  requiring,  for  the  safety 
of  persons  employed  therein,  the  owner  or 
agent  of  every  coal  mine  or  colliery  to  make 
an  accurate  map  of  the  workings;  Daniels 
v.  Hilgard,  77  111.  640;  and  another  prohib- 
iting the  employment  of  persons  under  eight- 
een and  of  women  from  laboring  more  than 
sixty  hours  a  week;  Com.  v.  Mfg.  Co.,  120 
Mass.  383;  a  statute  making  eight  hours  a 


EQUAL  PROTECTION  OF  THE  LAWS     1053     EQUAL  PR<  »N  OF  THE  LAWS 


day's  work  for  all  laborers  except  farm  and 
domestic;  People  v.  Met/.,  L93  N.  Y.  l 
N.  E.  1070,  24  L.  R.  A.  (N.  S.)  201  ;  o 
thorizing  a  state  commission  to  fix  the  maxi- 
mum price  to  be  charged  for  Bervice  by  gas 
and  electric  light  companies,  and  an  order 
of  tbe  commission  fixing  tbe  maximum  price 
of  pis  or  electricity  for  three  years  was  held 
to  be  reasonable  and  valid,  but  the  further 
provision  that  the  rate  so  fixed  should  con- 
tinue Indefinitely  thereafter  until  fixed  anew 
on  complaint  made  was  Inequitable  and  vio- 
lated the  guaranty  of  equal  protection  of  the 
laws,  inasmuch  as  the  statute  did  not  con- 
fer equal  rights  on  both  parties,  authorizing 
only  certain  municipal  ofheers  or  a  designat- 
ed number  of  consumers  to  make  complaint, 
and  giving  no  opportunity  to  the  company 
at  the  end  of  three  years,  or  at  any  time 
thereafter,  to  apply  for  a  new  adjustment  of 
rates;  Village  of  Saratoga  Springs  v.  Power 
Co.,  191  N.  Y.  123,  83  N.  E.  G93,  18  L.  R.  A. 
(N.  S.)  713.  An  act  requiring  the  substitu- 
tion of  water-closets  for  school  sinks  in  tene- 
ment houses ;  Tenement  House  Dep't  of  New 
York  v.  Moeschen,  179  N.  Y.  325,  72  N.  E. 
231,  70  L.  R.  A.  704,  103  Am.  St.  Rep.  930, 
1  Ann.  Cas.  439;  one  providing  that  having 
in  possession  more  than  a  quart  of  liquor, 
without  license  to  sell,  shall  be  prima  facie 
evidence  of  intent  to  make  an  illegal  sale 
thereof;  State  v.  Barrett,  138  N.  C.  630,  50 
S.  E.  506,  1  L.  R.  A.  (N.  S.)  626,  and  note; 
an  act  regulating  the  keeping  of  employment 
agencies  in  cities  of  first  and  second  class; 
People  v.  Warden  of  City  Prison,  183  N.  Y. 
223,  76  N.  E.  11,  2  L.  R.  A.  (N.  S.)  859,  5 
Ann.  Cas.  325 ;  an  act  imposing  heavier  pun- 
ishment on  criminals  for  a  second  offence; 
McDonald  v.  Com.,  173  Mass.  322,  53  N.  E. 
874,  73  Am.  St.  Rep.  203 ;  Moore  v.  Missouri, 
159  U.  S.  673,  16  Sup.  Ct.  179,  40  L.  Ed.  301 ; 
Ughbanks  v.  Armstrong,  208  U.  S.  481,  28 
Sup.  Ct  372,  52  L.  Ed.  5S2 ;  one  imposing  a 
license  tax  on  all  laundries  not  run  by  steam  ; 
Quong  Wing  v.  Kirkendall,  223  U.  S.  59,  32 
Sup.  Ct.  192,  56  L.  Ed.  350 ;  an  act  requiring 
certain  public  service  corporations  to  pay 
employees  each  week  in  lawful  money; 
Lawrence  v.  R.  Co.,  80  Vt  370,  67  Atl.  1091, 
15  L.  R.  A.  (N.  S.)  350,  13  Ann.  Cas.  475; 
an  act  imposing  on  railroad  companies  the 
weekly  payment  of  wages;  Skinner  v.  Min. 
Co.,  96  Fed.  735  (but  see  infra)  ;  were  all 
held  valid. 

A  statute  was  held  valid  requiring  an  ex- 
amination of  graduates  of  foreign  medical 
colleges  as  a  prerequisite  to  obtaining  a  li- 
cense to  practice  medicine,  the  same  not  be- 
ing required  of  graduates  of  colleges  in  the 
state;  State  v.  Currens,  111  Wis.  431,  87  N. 
W.  561,  56  L.  R.  A.  252;  and  so  were  stat- 
utes recognizing  the  diploma  of  some  named 
medical  schools  as  sufficient  for  permission  to 
practice  medicine;  Shaw.  C.  J.,  in  Hewitt  v. 
Charier,    16    Pick.    (Mass.)    353;    Wright    v. 


Lanckton,    19    Pick.    (Mass.)    288;    Bibber    v. 
Simpson.  59  Me.  181  :  Broi  -  Ala. 

122.  0  Smith.  902;  and  statub 

at  the  approval  of  a  si  1   as- 

sociation  for  practicing   dentistry;   Wilkins 
v.  state,   113  Ind.  514,  16   N.   B.   192;  or  the 
fact  of  practicing  in 
the  law  as  a  sufficient  reason  for  • 
from     examination     to     practice     medi 
State  v.  Creditor,  44  Kan.  565,  24 
21  Am.  St  Rep.  300;  and  one  which  di 
guished   between  graduates  of  a    unii 
or  college   authorized   to    grant  diploma 
dental  surgery   and  those  of  a  regu  i 
lege  of  dentistry;   State  v.  Snowies,  90  Md. 
046,  45  All.  877,  49  L.  R.  A.  695. 

The  legal  duty  of  persons,  firms  or  corpo 
rations  operating  railroads  may  be  of  a  pe- 
culiar nature,  and  essentially  different  from 
the  duties  of  other  persons,  firms  or  corpora- 
tions, or  even  different  from  other  coi; 
carriers,  such,  for  example,  as  the  fencing 
of  tracks,  the  operation  of  trains,  construc- 
tion of  tracks,  maintenance  or  operation  of 
terminals,  depots,  or  crossings,  protection  of 
employees,  and  the  like.  As  to  such  matters 
peculiar  to  railroads,  they  may  be  separately 
classified  for  the  purposes  of  legislative  reg- 
ulation ;  Minneapolis  &  St.  L.  R.  Co.  v.  Beck- 
with,  129  U.  S.  26,  9  Sup.  Ct.  207,  32  L.  E 
5S5;  Missouri  Pac.  R.  Co.  v.  Mackey,  127  U. 
S.  205,  8  Sup.  Ct.  1161,  32  L.  Ed.  107;  Mis- 
souri, K.  &  T.  R.  Co.  v.  May,  194  U.  S.  267, 
24  Sup.  Ct.  638,  48  L.  Ed.  971 ;  Atchison,  T. 
&  S.'  F.  R.  Co.  v.  Matthews,  174  U.  S.  96, 
19  Sup.  Ct  609,  43  L.  Ed.  909 ;  Tullis  v.  R. 
Co.,  175  U.  S.  348,  20  Sup.  Ct.  136,  4  1  L.  Ed. 
192;  Lake  Shore  &  M.  S.  R.  Co.  v.  Ohio.  173 
U.  S.  285,  19  Sup.  Ct.  405,  43  L.  Ed  TO2; 
Pittsburgh,  C,  C.  &  St  L.  R.  Co.  v.  Light- 
heiser,  168  Ind.  438,  78  N.  E.  1033,  and  other 
cases  supra.  That  the  peculiar  rights,  du- 
ties and  responsibilities  of  common  carriers 
justifies  a  classification  including  only  com- 
mon carriers  is  held  in  Seaboard  Air  Line 
Ry.  v.  Seegers,  207  U.  S.  73,  28  Sup.  Ct 
28,  52  L.  Ed.  108;  but  where  the  particular 
subject  of  legislative  regulation  discrimi- 
nates against  one  class  of  common  carri- 
ers (in  this  case  railroad  companies  were 
required  to  pay  for  the  loss  of  or  damage 
to  any  shipment  the  sum  of  25  per  cent 
per  annum  on  the  principal  sum  of  the 
claim)  it  was  held  unreasonable,  as  impos- 
ing upon  one  class  of  carriers  a  burden  to 
which  others  are  not  subjected;  Seaboard 
A.  L.  R.  Co.  v.  Simon.  56  Fla.  54,".  47  South, 
1001,  20  L.  R.  A.  (N.  S.i  126,  10  Ann.  ('as. 
12:'.4.  Where,  however  a  statute  imposed  a 
penalty  on  railroad  companies  for  delay  in 
the  delivery  of  freight,  it  was  held  not  an 
unwarranted  discrimination  against  such 
carriers  as  singling  them  out  from  all  other 
carriers  engaged  in  the  same  business,  as 
carriage  by  water  is  subject  to  many  contin- 
gencies which  do  not  affect  carriage  by  rail- 


EQUAL  PROTECTION  OF  THE  LAWS  1054  EQUAL  PROTECTION  OF  THE  LAWS 


roads,  and  it  would  not  be  reasonable  to  sub- 
ject both  alike  to  the  same  regulations  as  to 
time ;  McCutchen  v.  R.  Co.,  81  S.  C.  71,  61  S. 
E.  1108. 

Statutes  held  void  as  against  both  guar- 
anties of  the  14th  Amendment  are  those  im- 
posing a  high  privilege  tax  on  lenders  of 
money  upon  furniture  etc. ;  Rodge  v.  Kelly, 
SS  Miss.  209,  40  South.  552,  11  L.  R.  A.  (N. 
S.)  635,  117  Am.  St  Rep.  733;  Ex  parte 
Sohncke,  148  Cal.  262,  S2  Pac.  956,  2  L.  R.  A. 
(N.  S.)  813,  113  Am.  St.  Rep.  236,  7  Ann. 
Cas.  475;  (aliter  as  to  a  statute  limiting  the 
amount  of  interest;  State  v.  Cary,  126  Wis. 
135,  105  N.  W.  792,  11  L.  R.  A.  [N.  S.]  174; 
or  requiring  certain  specifications  in  the  in- 
strument securing  the  loan ;  In  re  Home  Dis- 
count Co.,  147  Fed.  53S;  or  requiring  a  li- 
cense to  do  the  business;  City  Council  of 
Augusta  v.  Clark  &  Co.,  124  Ga.  254,  52  S. 
E.  SSI ;  Cowart  v.  City  Council  of  Green- 
ville, 67  S.  C.  35,  45  S.  E.  122;  State  v. 
Wickenhoefer,  6  Pennewill  [Del.]  120,  64  Atl. 
273). 

Among  the  acts  held  void  as  against  the 
equality  clause  are  those  forbidding  store 
orders  in  payment  of  wages;  State  v.  Good- 
will, 33  W.  Va.  179,  10  S.  E.  285,  6  L.  R.  A. 
621,  25  Am.  St.  Rep.  863;  State  v.  Coal  & 
Coke  Co.,  33  W.  Va.  1S8,  10  S.  E.  288,  6  L.  R. 
A.  359,  25  Am.  St.  Rep.  S91 ;  requiring  week- 
ly payment  of  wages  by  certain  corporations ; 
Braceville  Coal  Co.  v.  Teople,  147  111.  C6,  35 
N.  E.  62,  22  L.  R.  A.  340,  37  Am.  St.  Rep.  206 
(contra,  Skinner  v.  Mining  Co.,  96  Fed.  735) ; 
imposing  on  private  corporations  a  liability 
for  injuries  to  employees  as  being  an  abroga- 
tion of  the  fellow  servant  rule  which  does  not 
exist  in  case  of  individuals ;  Bedford  Quarries 
Co.  v.  Bough,  168  Ind.  671,  80  N.  E.  529,  14  L. 
R.  A.  (N.  S.)  418 ;  an  ordinance  prohibiting  the 
use  of  property  for  business  on  certain 
streets;  City  of  St.  Louis  v.  Dorr,  145  Mo. 
466,  41  S.  W.  1094,  46  S.  W.  976,  42  L.  R.  A. 
686,  68  Am.  St.  Rep.  575 ;  an  act  forbidding 
combinations  in  restraint  of  trade,  except 
agricultural  products  and  live  stock  in  the 
hands  of  the  producer ;  In  re  Grice,  79  Fed. 
627;  an  ordinance  allowing  four  livery  sta- 
bles in  the  business  centre  of  the  city  while 
the  fifth  and  all  others  must  be  relegated  and 
confined  to  a  remote  district ;  Town  of  Crow- 
ley v.  West,  52  La.  Ann.  526,  27  South.  53,  47 
L.  R.  A.  652,  78  Am.  St.  Rep.  355;  a  Mis- 
souri statute  prescribing  a  different  registra- 
tion law  for  St.  Louis  from  that  of  other 
cities  in  the  state;  Mason  v.  Missouri,  179 
U.  S.  328,  21  Sup.  Ct.  125,  45  L.  Ed.  214;  at 
classification  for  taxation  distinguishing  be- 
tween retail  and  wholesale  dealers;  Cook  v. 
Marshall  County,  196  U.  S.  261,  25  Sup.  Ct. 
233,  49  L.  Ed.  471;  or  between  different  oc- 
cupations ;  Kehrer  v.  Stewart,  197  U.  S.  60, 
25  Sup.  Ct.  403,  49  L.  Ed.  663;  an  act  per- 
mitting water  from  coal  mines  and  tunnels 
and  city  sewage  to  flow  into  streams  and  pro- 
hibiting individuals  and  corporations  to  do 


the  same;  Com.  v.  Emmers,  221  Pa.  29S,  70 
Atl.  762 ;  an  act  setting  apart  mineral  springs 
bored  in  the  rock  as  a  class  by  themselves ; 
Hathorn  v.  Gas  Co.,  128  App.  Div.  33,  112  N. 
Y.  Supp.  374;  forbidding  barbers,  and  bar- 
bers only,  from  keeping  open  their  shops  or 
working  their  trade  on  Sundays ;  Eden  v. 
People,  161  111.  296,  43  N.  E.  1108,  32  L.  R. 
A.  659,  52  Am.  St.  Rep.  365 ;  City  of  Tacoma 
v.  Krech,  15  Wash.  296,  46  Pac.  255,  34  L.  R. 
A.  68  (contra,  McClelland  v.  City  of  Denver, 
36  Colo.  486,  86  Pac.  126,  10  Ann.  Cas.  1014 ; 
Ex  parte  Northrup,  41  Or.  489,  69  Pac.  445); 
providing  that  no  costs  should  be  recovered 
against  the  city  in  an  action  commenced  to 
set  aside  any  assessment  or  tax  deed,  or  to 
prevent  the  collection  of  taxes  in  said  city ; 
Durkee  v.  City  of  Janesville,  28  Wis.  464,  9 
Am.  Rep.  500 ;  authorizing  suits  for  injunc- 
tion to  be  maintained  in  favor  of  certain  par- 
ties under  circumstances  differing  from  those 
which  obtained  in  respect  to  all  other  suits  of 
a  similar  nature;  City  of  Janesville  v.  Car- 
penter, 77  Wis.  288,  46  N.  W.  12S,  8  L.  R.  A. 
808,  20  Am.  St  Rep.  123;  prohibiting  per- 
sons engaged  in  mining  and  manufacturing 
from  issuing  for  the  payment  of  labor  any 
order  or  paper,  except  such  as  was  specified 
in  the  act ;  State  v.  Goodwill,  33  W.  Va.  179, 
10  S.  E.  2S5,  6  L.  R.  A.  621,  25  Am.  St.  Rep. 
863 ;  limiting  recovery  in  suits  brought  for 
libel  in  certain  cases  to  actual  damages  as 
defined  in  the  act ;  Park  v.  Free  Press  Co.,  72 
Mich.  560,  40  N.  W.  731,  1  L.  R.  A.  599,  16 
Am.  St.  Rep.  544;  providing  that  no  dam- 
ages for  injury  to  persons  or  property  caus- 
ed by  a  defect  in  the  highway  could  be  re- 
covered of  any  city  or  town  by  any  person, 
who,  at  the  time  the  damage  was  done,  was 
a  resident  of  any  country  where  damage  done 
under  similar  circumstances  was  not,  by  the 
laws  of  that  country  recoverable;  Pearson  v. 
City  of  Portland,  69  Me.  278,  31  Am.  Rep. 
276. 

In  Soon  Hing  v.  Crowley,  113  U.  S.  703,  5 
Sup.  Ct.  730,  28  L.  Ed.  1145,  the  court  said: 
"The  specific  regulations  for  one  kind  of 
business  which  may  be  necessary  for  the  pro- 
tection of  the  public  can  never  be  a  just 
ground  of  complaint  because  like  restrictions 
are  not  imposed  upon  a  business  of  a  differ- 
ent kind.  The  discriminations  which  are 
open  to  objection  are  those  where  persons 
engaged  in  the  same  business  are  subjected 
to  different  restrictions  or  are  held  entitled 
to  different  privileges  under  the  same  condi- 
tions." 

Whether  a  classification  under  a  statute  is 
a  denial  of  equal  protection  of  the  laws  "is 
a  legislative  question,  subject  to  judicial  re- 
vision only  so  far  as  to  see  that  it  is  found- 
ed on  real  distinctions  in  the  subjects  classi- 
fied, and  not  on  artificial  or  irrelevant  ones 
used  for  the  purpose  of  evading  the  consti- 
tutional prohibition.  If  the  distinctions  are 
genuine  the  courts  cannot  declare  the  dis- 
tinctions void,  though  they  may  not  consider 


EQUAL  PROTECTION  OF  THE  LAWS     1055 


EQUALITY 


it  on  a  sound  basis.  The  test  is  not  wisdom, 
but  good  faith  in  the  classification."  Sea- 
bolt  v.  Com'rs  of  Northumberland  County, 
187  Pa.  318,  41  Atl.  22 ;  Com.  v.  Randall,  225 
Pa.  197,  73  Atl.  1109. 

The  effect  of  the  prohibition  is  that  a  state 
is  hereby  prevented  from  depriving  particu- 
lar persons  or  classes  of  persons  of  equal  and 
impartial  justice  under  the  law;  Caldwell  v. 
Texas,  137  U.  S.  692,  11  Sup.  Ct.  224,  34  L. 
Ed.  81G ;  as  was  said  by  tbe  court  in  other 
cases,  "no  person  or  class  shall  be  denied  the 
same  protection  of  the  laws  which  Is  enjoy- 
ed by  other  persons  or  other  classes  in  the 
same  place  and  in  like  circumstances,"  quot- 
ed from  Missouri  v.  Lewis,  101  U.  S.  22,  31, 
25  L.  Ed.  989,  in  Connolly  v.  Sewer  Pipe  Co., 
184  U.  S.  510,  559,  22  Sup.  Ct.  431,  40  L.  Ed. 
079,  where  the  Illinois  Anti-Trust  Act  of  1893 
was  held  unconstitutional. 

Congress  may  not  by  penal  statutes  enforce 
the  guaranty  of  equal  protection  of  the  laws, 
as  it  is  directed  against  legislation  by  the 
states ;  U.  S.  v.  Harris,  100  U.  S.  629,  1  Sup. 
Ct.  G01,  27  L.  Ed.  290. 

The  classification  of  crimes  should  be  nat- 
ural and  not  arbitrary  and  should  be  made 
with  reference  to  the  heinousness  of  the 
crime  and  not  to  matters  disconnected  there- 
with; In  re  Mallon,  10  Idaho  737,  102  Pac. 
374,  22  L.  R.  A.  (N.  S.)  1123. 

EQUALITY.  Likeness  in  possessing  the 
same  rights  and  being  liable  to  the  same  du- 
ties.    See  1  Toullier,  nn.  170,  193. 

The  word  equal  implies,  not  identity,  but 
duality ;  the  use  of  one  thing  as  the  measure 
of  another.  Kentucky  &  I.  Bridge  Co.  v.  R. 
Co.,  37  Fed.  624,  2  L.  R.  A.  2S9;  Little  Rock 
&  M.  R.  Co.  v.  R.  Co.,  03  Fed.  775,  11  C.  C. 
A.  417,  26  L.  R.  A.  192. 

Judges  in  court,  while  exercising  their 
functions,  are  all  upon  an  equality,  it  being 
a  rule  that  inter  pares  non  est  potestas:  a 
judge  cannot,  therefore,  punish  another 
judge  of  the  same  court  for  using  any  ex- 
pression in  court,  although  the  words  used 
might  have  been  a  contempt  in  any  other 
person.  Bacon,  Abr.,  Of  the  Court  of  Ses- 
sions, Of  Justices  of  the  Peace. 

In  contracts,  the  law  presumes  that  the 
parties  act  upon  a  perfect  equality:  when, 
therefore,  one  party  uses  auy  fraud  or  deceit 
to  destroy  this  equality,  the  party  grieved 
may  avoid  the  contract  In  case  of  a  grant 
to  two  or  more  persons  jointly,  without  des- 
ignating what  each  takes,  they  are  presumed 
to  take  in  equal  proportions ;  Treadwell  v. 
Bulkley,  4  Day  (Conn.)  395,  4  Am.  Dec.  225 ; 
Henderson  v.  Womack,  41  N.  C.  437 ;  Appeal 
of  Young,  S3  Pa.  59. 

It  is  a  maxim  that  when  the  equity  of  the 
parties  is  equal,  the  law  must  prevail ;  John- 
son v.  Brown,  3  Call  (Va.)  259;  and  that  as 
between  different  creditors,  equality  is  equi- 
ty; De  La  Yergne  v.  Evertson,  1  Paige,  Ch. 
(N.  Y.)  1S1,  19  Am.  Dec.  411.  See  Karnes,  Eq. 
75;    Equity. 


Equalization  in  revenue  statutes  means  to 

bring  the  assessment  of  i  parts  of  a 

taxing  district  to  the  .-lard  ; 

Huidekoper  v.  Hadley,  177  Fed.  l,  lou  C.  C. 

.  40  L.  R.  A.  (N.  S.j  505. 

See  Tax. 

EQUINOX.  The  name  given  to  two  pe- 
riods of  the  year  when  the  days  and  nights 
are  equal ;  that  is,  when  the  space  ol 
between  the  rising  and  setting  of  the  sun  is 
one-half  of  a  natural  day.  The  vernal  equi- 
nox occurs  about  March  21,  the  autumnal 
about  Septemher  23. 

EQUIPMENT.  Furnishings  for  the  requir- 
ed purposes,  in  a  Legacy  to  he  applied  to- 
ward the  rebuilding  and  equipment  of  a  hos- 
pital it  was  held  equipment  meant  everything 
required  to  convert  an  empty  building  into  a 
hospital;   75  L.  J.  Ch.  163. 

EQUITABLE  ASSETS.  Such  assets  as  are 
Chargeable  with  the  payment  of  debts  or  leg- 
acies  iu  equity,  and  which  do  not  fall  under 
the  description  of  legal  assets. 

Those  portions  of  the  property  which  by 
the  ordinary  rules  of  law  are  exempt  from 
debts,  but  which  the  testator  has  voluntarily 
charged  as  assets,  or  which,  being  non-exist- 
ent at  law,  have  been  created  in  equity.  Ad. 
Eq.  254. 

They  are  so  called  because  they  can  be 
reached  only  by  the  aid  and  instrumentality 
of  a  court  of  equity,  and  because  their  dis- 
tribution is  governed  by  a  different  rule  from 
that  which  governs  the  distribution  of  legal 
assets.  2  Fonb.  Eq.  b.  4,  pt  2,  c.  2,  §  1,  and 
notes;  2  Vera.  703;  YVilles  523;  3  Woodd. 
Lect  4S6 ;    Story,  Eq.  Jur.  §  552. 

The  doctrine  of  equitable  assets  has  been 
much  restricted  in  the  United  States  gen- 
erally, and  has  lost  its  Importance  in  Eng- 
land since  the  act  of  ls70,  providing  that  sim- 
ple contract  and  specialty  creditors  are,  in 
future,  payable  pari  passu  out  of  boil, 
and  equitable  assets;  Bisph.  Eq.  S  531  ;  Ben- 
son v.  Le  Roy,  4  Johns.  Ch.  (N.  Y.)  651  :  uack- 
house  v.  Patton,  5  Pet.  (U.  S.)  100,  8  L.  Ed. 
S2;    Black  v.  Scott,  2  Brock.  Caa 

No.  1,404;  Hopkins  v.  Morgan's  Kx'r.  3  Dana 
(Ky.)  18;  Speed's  Ex'r  v.  Nelson's  Ex'r,  8  B. 
Monr.  (Ky.)  499;  Henderson  v.  Burton's  Kx'r, 
38  N.  C.  259. 

EQUITABLE    ASSIGNMENT.     An   assign- 
ment of  a  chose  in  action,  a  thing  not  in 
as  a  mortgage  of  personal  property  t<>  1"   ac- 
quired in  the  future,  and  a  mere  contii 
which,   though  not  good  at  law.  equity   will 
recognize.     Bisph.  Eq.  S  164;    10  H.  L.  Caa 
209;    Butt  v.  Ellett  19  Wall.  (U.  S.)  511,  ^_ 
L.  Ed.  183;    Shephard  v.  Clark,  3.s  111.  App. 
00;  Bacon  v.  Bonhain.  ::::  X.  .1.  Eq.  614  :    East 
Lewisburg  Lumber  &  Mfg.  Co.  v.   Ma: 
Pa.  90.      In  making  such  an  assignment,   no 
particular  form  of  words  is  necessary;  Buck 
v.  Swazey.  35  Me.  41,  56  Am.  Dec.  681;    Kes- 
sel  v.  Albetis,  56  Barb.  (N.  Y.t  362;    Noyes  v. 
Brown,  33  Yt.  431;    Cage  v.  Dow,  59  N.  H. 


EQUITABLE  ASSIGNMENT 


1056 


EQUITABLE  ESTATE 


383;  Bower  v.  Stone  Co.,  30  N.  J.  Eq.  171; 
but  the  property  must  be  specifically  pointed 
out;  Morrill  v.  Noyes,  56  Me.  465,  96  Am. 
Dec.  4S6 ;  Benj.  Sales  62  ;  and  there  must  be 
an  appropriation  or  separation,  and  the  mere 
intent  to  appropriate  is  not  sufficient;  Put- 
nam Saw  Bank  v.  Beal,  54  Fed.  577;  Shan- 
non v.  Mayor,  etc.,  of  Hoboken,  37  N.  J.  Eq. 
123.  A  valid  assignment  may  be  made  of  a 
portion  of  the  contract  price  of  a  building 
contracted  to  be  erected  by  the  assignor,  but 
not  yet  erected,  and  such  assignment  need 
not  be  written  nor  accompanied  by  any  trans- 
fer of  the  contract  itself;  Lanigan's  Adin'r 
v.  Bradley  &  Currier  Co.,  50  N.  J.  Eq.  201, 
24  Atl.  505.  The  assignee  of  a  chose  in  ac- 
tion takes  it  subject  to  existing  equities  in 
favor  of  third  persons,  as  well  as  to  those 
between  the  original  parties;  Schafer  v.  Reil- 
ly,  50  N.  Y.  67;  3  Lead.  Cas.  Eq.  372,  n. 
Equity  will  not  recognize  the  assignment  of 
certain  kinds  of  property  as  against  the  pol- 
icy of  the  law,  such  as,  mere  litigious  rights, 
pensions,  salaries  of  judges,  commissions  of 
officers  in  the  army  or  navy,  claims  against 
the  United  States,  and  the  like;  1  E.  L.  & 
Eq.  153  ;  Appeal  of  Elwyn,  67  Pa.  369  ;  L.  R. 
7  Ch.  109;  8  id.  76;  Wanless  v.  U.  S.,  6  Ct. 
CI.  123  ;  Bates  v.  U.  S.,  4  Ct.  01.  569 ;  St.  Paul 
&  D.  R.  Co.  v.  U.  S.,  112  U.  S.  733,  5  Sup.  Ct. 
366,  28  L.  Ed.  861.  The  assignment  of  secur- 
ed notes  carries  with  it  an  equitable  assign- 
ment of  the  security;  Himrod  v.  Bolton,  44 
111.  App.  516.    See  Assignment;  Expectancy. 

EQUITABLE  CONVERSION.  See  Con- 
version. 

EQUITABLE  DEFENCE.  A  defence  to  an 
action  on  grounds  which,  prior  to  the  passing 
of  the  Common  Law  Procedure  Act  (17  and 
18  Vict.  c.  125),  would  have  been  cognizable 
only  in  a  court  of  equity.  Moz.  &  W.  The 
codes  of  procedure  and  the  practice  in  some 
of  the  states  likewise  permit  both  a  legal  and 
equitable  defence  to  the  same  action. 

EQUITABLE  ELECTION.  See  Election 
of  Rights. 

EQUITABLE  ESTATE.  A  right  or  inter- 
est in  land,  which,  not  having  the  properties 
of  a  legal  estate,  but  being  merely  a  right  of 
which  courts  of  equity  will  take  notice,  re- 
quires the  aid  of  such  court  to  make  it  avail- 
able. 

These  estates  consist  of  uses,  trusts,  and 
powers.  They  possess  in  some  respects  the 
qualities  of  legal  estates  in  modern  law ;  Da- 
vis v.  Mason,  1  Pet.  (U.  S.)  508,  7  L  Ed.  239 ; 
Houghton  v.  Hapgood,  13  Pick.  (Mass.)  154; 
Ege  v.  Medlar,  82  Pa.  86 ;  Dunscomb  v.  Duns- 
comb,  1  Johns.  Ch.  (N.  Y.)  508,  7  Am.  Dec. 
504;  2  Vern.  536;  1  Bro.  C.  C.  499;  Wms. 
R.  P.  134 ;  1  Spence,  Eq.  Jur.  501 ;  1  Washb. 
R.  P.  130,  161. 

A  contract  for  the  sale  of  land  gives  the 
buyer  an  equitable  estate ;  an  interest  which 
he  can  resell,  or  dispose  of  by  will,  etc. ;  his 


title  is  good  against  every  one  except  a  "pur- 
chaser for  value  without  notice";  Pollock, 
First  Book  of  Jurispr.  212. 

EQUITABLE    ESTOPPEL.     See  Estoppel. 

EQUITABLE  MORTGAGE.  A  lien  upon 
real  estate  of  such  a  character  that  it  is  rec- 
ognized in  equity  as  a  security  for  the,  pay- 
ment of  money  and  is  treated  as  a  mortgage. 
A  mortgage  of  a  merely  equitable  estate  or 
interest  is  also  so  called. 

Such  a  mortgage  may  exist  by  a  deposit 
with  the  lender  of  money  of  the  titleTdeeds 
to  an  estate ;  Story,  Eq.  Jur.  §  1020 ;  Bisph. 
Eq.  161 ;  1  Bro.  Ch.  C.  269 ;  17  Ves.  230 ;  Man- 
deville  v.  Welch,  5  Wheat.  (U.  S.)  277,  5  L. 
Ed.  S7 ;  20  Beav.  607.  They  must  have  been 
deposited  as  a  present,  bona  fide  security ;  1 
Washb.  R.  P.  503 ;  and  the  mortgagee  must 
show  notice  to  affect  a  subsequent  mortgagee 
of  record;  Hall  v.  McDuff,  24  Me.  311;  3 
Hare  416  ;  Story,  Eq.  Jur.  §  1020.  Such  mort- 
gages are  recognized  in  some  states ;  Hall  v. 
McDuff,  24  Me.  311;  Williams  v.  Stratton, 
10  Smedes  &  M.  (Miss.)  418;  Hackett  v, 
Reynolds,  4  R.  I.  512;  but  under  the  usual 
system  of  the  registration  of  deeds  are  of  in- 
frequent occurrence. 

The  doctrine  is  repudiated  in  many  juris- 
dictions ;  Lehman,  Durr  &  Co.  v.  Collins,  69 
Ala.  127;  Pierce  v.  Parrish,  111  Ga.  725,  37 
S.  E.  79;  Gothard  v.  Flynn,  25  Miss.  58; 
Bloomfield  State  Bank  v.  Miller,  55  Neb.  243, 
75  N.  W.  569,  44  L.  R.  A.  387,  70  Am.  St.  Rep. 
3S1;  Harper  v.  Spainhour,  64  N.  C.  629; 
Hackett  v.  Watts,  138  Mo.  502,  40  S.  W.  113 ; 
on  the  ground  that  it  would  tend  to  embar- 
rass lands  with  secret  trusts ;  Lehman,  Durr 
&  Co.  v.  Collins,  69  Ala.  127;  as  coming  in 
conflict  with  the  statute  of  frauds,  which 
provides  that  all  agreements  for  the  sale  of 
land,  etc.,  should  be  in  writing,  etc.;  Wil- 
liams v.  Stratton,  10  Smedes  &  M.  (Miss.) 
41S;  and  as  being  contrary  to  acts  for  the 
recording  of  mortgages, .  and  for  recording 
liens  for  public  information;  Shitz  v.  Dief- 
fenbach,  3  Pa.  233.  In  Georgia  the  code  de- 
clares that  the  delivery  of  title  deeds  creates 
no  pledge;  Davis  v.  Davis,  88  Ga.  191,  14 
S.  E.  194.  When,  however,  a  written  agree- 
ment accompanies  the  deposit  of  the  title 
deeds,  such  agreement  may  become  the  basis 
for  an  equitable  lien  ;  Woodruff  v.  Adair,  131 
Ala.  530,  32  South.  515. 

No  particular  formality  is  necessary  in  or- 
der to  make  a  valid  mortgage  between  the 
parties  thereto ;  Frick  v.  Fritz,  115  la.  438,  SS 
N.  W.  961,  91  Am.  St.  Rep.  165.  If  the  trans- 
action resolves  itself  into  a  security,  whatever 
may  be  its  form,  in  equity  it  is  a  mortgage; 
Flagg  v.  Mann,  2  Sumn.  533,  Fed.  Cas.  No. 
4,847.  A  lien  created  by  contract  and  not 
sufficient  as  a  legal  mortgage,  will  generally 
be  regarded  as  partaking  of  the  nature  of  an 
equitable  mortgage;  Kyle  v.  Belleuger,  79 
Ala.  516.  Though  a  lien  may  not  be  express- 
ed in  terms,  equity  will  imply  a  security  from 


F.QUITABLE  MORTGAGE 


1057 


EQUITY 


the  nature  of  the  transaction,  and  give  effect 
to  it,  as  such,  in  furtherance  of  the 
ment  of  the  parties,  if  there  appears  an  in- 
tention to  create  a  security;  Wood  v.  Holly 
Mfg.  Co.,  100  Ala.  326,  13  South.  948.  -if,  Am. 
St.  Rep.  50.  The  form  of  the  writing  is  not 
important  provided  it  sufficiently  appears 
that  it  was  thereby  intended  to  create  a  se- 
curity; Howard  v.  Iron  &  Land  Co.,  G2 
Minn.  298,  64  X.  W.  896;  and  to  the  same  ef- 
fect, Higgins  v.  Manson.  11";  Gal  407,  58  Pac. 
907,  77  Am.  St.  Rep.  192;  Martin  v.  Rowen, 
51  N.  J.  Eq.  452,  26  Atl.  823;  Dulaney  v. 
Willis,  95  Va.  006,  29  S.  E.  324,  04  Am.  St. 
Rep.  815;  Hackett  v.  Watts,  138  Mo.  502,  40 
S.  W.  113. 

To  place  in  the  hands  of  another  a  deed  to 
real  estate,  together  with  a  written  memo- 
randum stating  that  the  property  is  pledged 
to  secure  the  other  against  loss  from  i 
Ing  a  surety  for  the  owner,  will  create  an 
equitable  lien  enforceable  against  the  own- 
er's assignee  for  creditors ;  In  re  Snyder,  138 
la.  553,  114  N.  W.  015,  19  L.  R.  A.  (N.  S.) 
206. 

Such  a  mortgage  has  been  said  to  exist  in 
favor  of  the  vendor  of  real  estate  as  security 
for  purchase-money  due  from  the  purchaser ; 
in  which  case  a  lien  is  recognized  in  some 
jurisdictions ;  15  Ves.  339  ;  1  Bro.  Ch.  C.  420, 
424,  n.  It  is  occasionally  spoken  of  as  an 
equitable  mortgage;  Moreton  v.  Harrison,  1 
Bland  (Md.)  491,  though  it  is  doubtful  if  it  is 
to  be  so  considered.  It  is  properly  termed 
vendor's  lien,  which  see.    See  also  Lien. 

EQUITABLE  WASTE.    See  Waste. 

EQUITATURA.  In  Old  English  Law. 
Needful  equipments  for  riding  or  travelling. 

EQUITY.  A  branch  of  remedial  justice  by 
and  through  which  relief  is  afforded  to  suit- 
ors in  the  courts  of  equity. 

In  the  broad  sense  in  which  this  term  is  some- 
times used  it  signifies  natural  justice. 

In  a  more  limited  application,  it  denotes  equal 
justice  between  contending  parties.  This  is  its 
moral  signification,  in  reference  to  the  rights  of 
parties  having  conflicting  claims ;  but  applied  to 
courts  and  their  jurisdiction  and  proceedings,  it  has 
a  more  restrained  and   limited  signification. 

One  division  of  courts  is  into  courts  of  law  and 
courts  of  equity.  And  equity,  in  this  relation  and 
application,  is  a  branch  of  remedial  justice  by  and 
through  which  relief  is  afforded  to  suitors  in  the 
courts   of   equity. 

The  difference,  between  the  remedial  justice  of  the 
courts  of  common  law  and  that  of  the  courts  of 
equity  is  marked  and  material.  That  administered 
by  the  courts  of  law  is  limited  by  the  principles  of 
the  common  law  (which  are  to  a  great  extent  posi- 
tive and  inflexible),  and  especially  by  the  nature 
and  character  of  the  process  and  pleadings,  and  of 
the  judgments  which  those  courts  can  render  ;  be- 
cause the  pleadings  cannot  fully  present  all  the 
matters  in  controversy,  nor  can  the  judgments  be 
adapted  to  the  special  exigencies  which  may  exist 
in  particular  cases.  It  is  not  uncommon,  also,  for 
cases  to  fail  in  those  courts,  from  the  fact  that  too 
few  or  too  many  persons  have  been  joined  as  par- 
ties, or  because  the  pleadings  have  not  been  framed 
with  sufficient  technical   precision. 

The  remedial  process  of  the  courts  of  equity,  on 
the    other    hand,    admits,    and,    generally,    requires, 

Bouv.— 67 


that  all  persons  having  an  interest  shall  be  made 
parties,  and  makes  a  large  allowance  for  amend- 
ments by  summoning  and  discharging  parties  after 
the  commencement  of  the  suit.  The  pleadings  are 
usually  framed  so  as  to  present  to  the  considera- 
tion of  the  court  the  whole  case,  with  its  i 
legal  rights,  and  all  its  equities,— that  Is,  all  the 
grounds  upon  which  the  suitor  is  or  is  not  entitled 
to  relief  upon  the  principles  of  equity.  And  its  final 
remedial  process  may  be  so  varied  as  to  n; 
requirements  of  these  equities,  in  cases  where  the 
jurisdiction  of  the  courts  of  equity  "com- 

manding what  is  right,  and  prohibiting  what  is 
wrong."  In  other  words,  its  final  process  Is  varied 
so  as  to  enable  the  courts  to  do  that  •  ';uitable  Jus- 
tice between  the  parties  which  the  case  demands, 
eithi  r  by  commanding  what  is  to  be  done,  or  pro- 
hibiting what  is   threatened   to  be  done. 

The  principles  upon  which,  and  the  mo<! 
forms  by  and  through  which,  justice  is  administered 
in  the  United  States,  are  derived  to  a  great  ex- 
tent from  those  which  were  In  existence  in  England 
at  the  time  of  the  settlement  of  this  country  ;  and 
it  is  therefore  important  to  a  correct  understanding 
of  the  nature  and  character  of  our  own  jurispru- 
dence, not  only  to  trace  it  back  to  its  introduction 
here  .on  the  early  settlement  of  the  colonies,  but 
also  to  trace  the  English  jurisprudence  from,  its 
earliest  inception  as  the  administration  of  law, 
founded  on  principles,  down  to  that  period.  It  is  in 
this  way  that  we  are  enabled  to  explain  many 
things  in  our  own  practice  which  would  otherwise 
be  entirely  obscure.  This  is  particularly  true  of  the 
principles  which  regulate  the  jurisdiction  and  prac- 
tice of  the  courts  of  equity,  and  of  the  principles  of 
equity  as  they  are  now  applied  and  administ.<  red  i:i 
the  courts  of  law  which  at  the  present  day  have 
equitable  jurisdiction  conferred  upon  them  by  stat- 
utes passed  for  that,  purpose.  And  for  the  purpose 
of  a  competent  understanding  of  the  course  of  de- 
cisions in  the  courts  of  equity  in  England,  it  is 
necessary  to  refer  to  the  origin  of  the  equitable 
jurisdiction  there,  and  to  trace  its  history,  inquiring 
upon  what  principles  it  was  originally  founded,  and 
how  it  has  been  enlarged  and  sustained. 

The  study  of  equity  jurisprudence,  therefore,  com- 
prises an  inquiry  into  the  origin  and  history  of  the 
courts  of  equity ;  the  distinctive  principles  upon 
which  jurisdiction  in  equity  is  founded  ;  the  nature, 
character,  and  extent  of  the  jurisdiction  itself ;  its 
peculiar  remedies ;  the  rules  and  maxims  which 
regulate  its  administration ;  its  remedial  process 
and  proceedings  and  modes  of  defence ;  and  its 
rules  of  evidence  and   practice. 

"The  meaning  of  the  word  'equity,"  as  used  in  its 
technical  sense  in  English  jurisprudence,  comes 
back  to  this:  that  it  is  simply  a  term  descriptive  of 
a  certain  field  of  jurisdiction  exercised  in  the  Eng- 
lish system,  by  certain  courts,  and  of  which  the 
extent  and  boundaries  are  not  marked  by  lines 
founded  upon  principle  so  much  as  by  the  features 
of  the  original  constitution  of  the  English  scheme 
of  remedial  law,  and  the  accidents  of  its  develop- 
ment."    Bisph.   Eq.   §  11. 

Origin  and  History.  The  courts  of  equi- 
ty may  be  said  to  have  their  origin  as  far 
back  as  the  Aula  or  Curia  Regis,  the  great 
court  in  which  the  king  administered  Justice 
in  person,  assisted  by  bis  counsellors.  Of 
the  officers  of  this  court,  the  chancellor  was 
one  of  great  trust  ami  confidence,  next  to  the 
king  himself;  but  bis  duties  do  not  distinctly 
appear  at  the  present  day.  On  the  di 
tion  of  that  court,  he  exercised  separate  du- 
ties. 

On  the  introduction  of  seals,   he  had   the 
keeping  of  the  king's  seal,  which  he  affixed 
to  charters  and  deeds;   and  he  had  soi 
thority    in    relation    to    the    king's    grants. — 
perhaps  annulling  those  which  were  alleged 


EQUITY 


1058 


EQUITY 


to  have  been  procured  by  misrepresentation 
or  to  have  been  issued  unadvisedly. 

As  writs  came  into  use,  it  was  made  bis 
duty  to  frame  and  issue  them  from  bis  court, 
which,  as  early  as  the  reign  of  Henry  II., 
was  known  as  the  chancery-  And  it  is  said 
that  he  exercised  at  this  period  a  sort  of 
equitable  jurisdiction  by  which  he  mitigated 
the  rigor  of  the  common  law, — to  what  ex- 
tent it  is  impossible  to  determine.  He  is 
spoken  of  as  one  who  "annuls  unjust  laws, 
and  executes  the  rightful  commands  of  the 
pious  prince,  and  puts  an  end  to  what  is  in- 
jurious to  the  people  or  to  morals," — which 
would  form  a  very  ample  jurisdiction ;  but  it 
seems  probable  that  this  was  according  to 
the  authority  or  direction  of  the  king,  given 
from  time  to  time  in  relation  to  particular 
cases.  He  was  a  principal  member  of  the 
king's  council,  after  the  conquest,  in  which, 
among  other  things,  all  applications  for  the 
special  exercise  of  the  prerogative  in  regard 
to  matters  of  judicial  cognizance  were  dis- 
cussed and  decided  upon.  In  connection  with 
the  council,  he  exercised  a  separate  author- 
ity in  cases  in  which  the  council  directed  the 
suitors  to  proceed  in  chancery.  The  court  of 
chancery  is  said  to  have  sprung  from  this 
council.  But  it  may  be  said  that  it  had  its 
origin  in  the  prerogative  of  the  king,  by 
which  he  undertook  to  administer  justice,  on 
petitions  to  himself,  without  regard  to  the 
jurisdiction  of  the  ordinary  courts,  which  he 
did  through  orders  to  his  chancellor.  The 
great  council,  or  parliament,  also  sent  mat- 
ters relating  to  the  king's  grants,  etc.,  to  the 
chancery",  and  it  seems  that  the  chancellor, 
although  an  ecclesiastic,  was  the  principal 
actor  as  regards  the  judicial  business  which 
the  select  or  king's  council,  as  well  as  the 
great  council,  had  to  advise  upon  or  trans- 
act. In  the  reign  of  Edward  I.  the  power 
and  authority  of  the  chancellor  were  extend- 
ed by  the  statute  of  Westminster  2d. 

In  the  time  of  Edward  III.  proceedings  in 
chancery  were  commenced  by  petition  or  bill, 
the  adverse  party  was  summoned,  the  par- 
ties were  examined,  and  chancery  appears  as 
a  distinct  court  for  giving  relief  in  cases 
which  required  extraordinary  remedies,  the 
king  having,  "by  a  writ,  referred  all  such 
matters  as  were  of  grace  to  be  dispatched 
by  the  chancellor  or  by  the  keeper  of  the 
privy  seal."  . 

It  may  be  considered  to  have  been  fully 
established  as  a  separate  and  permanent  ju- 
risdiction, from  the  17th  of  Richard  II. 

In  the  time  of  Edward  IV.  the  chancery 
had  come  to  be  regarded  as  one  of  the  four 
principal  courts  of  the  kingdom.  From  this 
time  its  jurisdiction  and  the  progress  of  its 
jurisdiction  become  of  more  importance  to  us. 
It  is  the  tendency  of  any  system  of  legal 
principles,  when  reduced  to  a  practical  ap- 
plication, to  fail  of  effecting  such  justice  be- 
tween party  and  party  as  the  special  circum- 
stances of  a  case  may  require,  by  reason  of 


the  minuteness  and  inflexibility  of  its  rules 
and  the  inability  of  the  judges  to  adapt  its  " 
remedies  to  the  necessities  of  the  controver- 
sy under  consideration.  This  was  the  case 
with  the  Roman  law ;  and,  to  remedy  this, 
edicts  were  issued  from  time  to  time,  which 
enabled  the  consuls  and  pr:ctors  to  correct 
"the  scrupulosity  and  mischievous  subtlety 
of  the  law ;"  and  from  these  edicts  a  code 
of  equitable  jurisprudence  was  compiled. 

So  the  principles  and  rules  of  the  common 
law,  as  they  were  reduced  to  practice,  became 
in  their  application  the  means  of  injustice 
in  cases  where  special  equitable  circumstanc- 
es existed,  of  which  the  judge  could  not  take 
cognizance  because  of  the  precise  nature  of 
its  titles  and  rights,  the  inflexible  character 
of  its  principles,  and  the  technicality  of  its 
pleadings  and  practice.  And  in  a  manner 
somewhat  analogous  to  the  Roman  mode  of 
modification,  in  order  to  remedy  such  hard- 
ships, the  prerogative  of  the  kijjg  or  the  au- 
thority of  the  great  council  was  exercised  in 
ancient  times  to  procure  a  more  equitable 
measure  of  justice  in  the  particular  case, 
which  was  accomplished  through  the  court  of 
chancery. 

This  was  followed  by  the  "invention"  of 
the  writ  of  subpoena  by  means  of  which  the 
chancery  assumed,  upon  a  complaint  made 
directly  to  that  court,  to  require  the  attend- 
ance of  the  adverse  party,  to  answer  to  such 
matters  as  should  be  objected  against  him. 
Notwithstanding  the  complaints  of  the  com- 
mons, from  time  to  time,  that  the  course  of 
proceeding  in  chancery  "was  not  according 
to  the  course  of  the  common  law,  but  the 
practice  of  the  holy  church,"  the  king  sus- 
tained the  authority  of  the  chancellor,  the 
right  to  issue  the  writ  was  recognized  and 
regulated  by  statute,  and  other  statutes  were 
passed  conferring  jurisdiction  where  it  had 
not  been  taken  before.  In  this  way,  without 
any  compilation  of  a  code,  a  system  of  equi- 
table jurisprudence  Was  established  in  the 
court  of  chancery,  enlarging  from  time  to 
time;  the  decisions  of  the  court  furnishing 
an  exposition  of  its  principles  and  of  their 
application.  It  is  said  that  the  jurisdiction 
was  greatly  enlarged  under  the  administra- 
tion of  Cardinal  Wolsey,  in  the  time  of  Hen- 
ry VIII.  The  courts  of  equity  also  began  to 
act  in  personam' and  to  enjoin  plaintiffs  in 
common-law  courts  from  prosecuting  inequi- 
table suits.  A  controversy  took  place  be- 
tween Lord  Chancellor  Ellesmere  and  Lord 
Coke,  Chief  Justice  of  the  King's  Bench,  in 
the  time  of  James  I.,  respecting  the  right  of 
the  chancellor  to  interfere  with  any  of  the 
proceedings  and  judgments  of  the  courts  of 
law.  The  king  sustained  the  chancellor ;  and 
from  that  time  the  jurisdiction  then  claimed 
has  been  maintained.  See  The  Earl  of  Ox- 
ford's Case,  1  Ch.  Rep.  1,  2  Lead.  Cas.  Eq. 
601 ;  Bisph.  Eq.  §  407 ;  1  Poll.  &  Maitl.  172 ; 
1  Hallam,  Const.  Hist- 472;   Cancellarius. 

It  is  from  the  study  of  these  decisions  and 


EQUITY 


1059 


EQUITY 


the  commentaries  upon  them  that  we  are 
enabled  to  determine,  with  a  greater  or  less 
degree  of  certainty,  the  time  when  and  the 
grounds  upon  which  jurisdiction  was  granted 
or  was  taken  in  particular  classes  of  cases, 
and  the  principles  upon  which  it  was  admin- 
istered. And  it  is  occasionally  of  Importance 
to  attend  to  this;  because  we  shall  see  that, 
chancery  having  once  obtained  jurisdiction, 
that  jurisdiction  continues  until  expressly 
takeu  away,  notwithstanding  the  intervention 
of  such  changes  in  common-law  practice  and 
rules  as,  if  they  had  been  made  earlier, 
would  have  rendered  the  exercise  of  juris- 
diction in  equity  incompatible  with  the  prin- 
ciples upon  which  it  is  founded. 

A  brief  sketch  of  some  of  the  principal 
points  in  the  origin  and  history  of  the  court 
of  chancery  may  serve  to  show  that  much  of 
its  jurisdiction  exists  independently  of  any 
statute,  and  is  founded  upon  an  assumption 
of  a  power  to  do  equity,  having  its  first  in- 
ception in  the  prerogative  of  the  king,  and 
his  commands  to  do  justice  in  individual  cas- 
es, extending  itself  through  the  action  of  the 
chancellor,  to  the  issue  of  a  writ  of  summons 
to  appear  in  his  court  without  any  special 
authority  for  that  purpose,  and,  upon  the 
return  of  the  subpoena,  to  the  reception  of  a 
complaint,  to  a  requirement  upon  the  party 
summoned  to  make  answer  to  that  complaint, 
and  then  to  a  hearing  and  decree,  or  judg- 
ment, upon  the  merits  of  the  matters  in  con- 
troversy, according  to  the  rules  of  equity  and 
good  conscience. 

It  appears  as  a  noticeable  fact  that  the 
jurisdiction  of  the  chancery  proceeded  orig- 
inally from  and  was  sustained  by  successive 
kings  of  England  against  the  repeated  remon- 
strances of  the  commons,  who  were  for  ad- 
hering to  the  common  law ;  though  not,  per- 
haps, approving  of  all  its  rigors,  as  equity 
had  been  to  some  extent  acknowledged  as  a 
rule  of  decision  in  the  common-law  courts. 

This  opposition  of  the  commons  may  have 
been  owing  in  part  to  the  fact  that  the  chan- 
cellor was  in  those  days  usually  an  ec- 
clesiastic, and  to  the  existing  antipathy 
among  the  masses  of  the  people  to  almost  ev- 
erything Roman. 

The  master  of  the  rolls,  who  for  a  long 
period  was  a  judicial  officer  of  the  court  of 
chancery,  second  only  to  the  chancellor,  was 
originally  a  clerk  or  keeper  of  the  rolls  or 
records,  but  seems  to  have  acquired  his  judi- 
cial authority  from  being  at  times  directed 
by  the  king  to  take  cognizance  of  and  de- 
termine matters  submitted  to  him. 

Distinctive  Principles.  It  is  quid'  ap- 
parent that  some  principles  other  than  those 
of  the  common  law  must  regulate  the  • 
cise  of  such  a  jurisdiction.  That  law  could 
not  mitigate  its  rigor  upon  its  own  principles. 
And  as,  down  to  the  time  of  Edward  III., 
and,  with  few  exceptions,  to  the  21st  of  Hen- 
ry VIII.,  the  chancellors  were  ecclesiastics, 
much  more  familiar  with  the  principles  of 


the  Roman  law  than  with  those  of  the  com- 
mon law,  it  was  but  a  matter  of  course  that 
there  should  be  a  larger  adoption  of  the 
principles  of  that  law;  and  the  study  of  it  is 
of  some  importance  in  this  connection.  Still, 
that  law  cannot  be  said  to  be  of  authority 
even   in   equity  proceedings.     The  con. 

lealous  of  its  introduction.  "In  the 
reign  of  Richard  II.  the  barons  protested  that 
they  would  never  suffer  the  kingdom  to  be 
governed  by  the  Roman  law,  and  the  j 
prohibited  it  from  being  any  longer  cited  in 
the  common-law  tribunals." 

This  opposition  of  the  barons  and  of  the 
common-law  judges  furnished  very  suffl 
reasons  why  the  chancellors  should  nol 
fess  to  adopt  that  law  as  the  rule  of  de 
In  addition  to  this,  it  was  not  fitted,  in  many 
ts,   to   the  state  of  things   existing  in 
England ;    and  so  the  chancellors  were  of  ne- 
cessity compelled  to  act  upon  equitable  prin- 
ciples as  expounded  by  themselves.     In  later 
times  the  common-law  judges  in  that  country 
have  resorted  to  the  Roman  law  for  princi- 
ples of  decision  to  a    much   (  stent 
than  they  have  given  credit  to  it. 

Since  the  time  of  Henry  VIII.  the  cha 
bench  has  been  occupied  by  some  of  the 
ablest  lawyers  which  England  has  pro* 
and  they  have  given  to  the  proceedings  and 
practice  in  equity  definite  rules  and  forms, 
which  leave  little  to  the  personal  discretion 
of  the  chancellor  in  determining  what  equity 
and  good  conscience  require.  The  discretion 
of  the  chancellor  is  a  judicial  discretion,  to 
be  exercised  according  to  the  principles  and 
practice  of  the  court.     See  Discretion. 

The  avowed  principle  upon  which   the  ju- 
risdiction was  at  first  exercised  was  the  ad- 
ministration of  justice  according  to  hi  I 
equity,  and  conscience, — which  last,  it  i- 
was  unknown  to  the  common  law  as  a  prin- 
ciple of  decision. 

In  the  15th  of  Richard  II.  two  petitions, 
addressed  to  the  king  and  the  lords  of  par- 
liament, were  sent  to  the  chancery  to  be 
heard,  with  the  direction,  "Let  there  be 
by  the  authority  of  parliament,  that  which 
right  and  reason  and  good  faith  and  good 
conscience  demand  in  the  case." 

These  may  be  said  to  be  the  general  prin- 
ciples upon  which  equity  is  administered  at 
the  pre>< Mit  day. 

Although  in  its  origin  the  result  of  efforts 
to  avoid  hardships  sometimes  resulting  from 
the  rigorous  application  of  leg  -  and 

processes,  it  has  in  modern  times 
into  a  settled  system;  McElroy  v.  Master 
son,  L56  Fed.  86,  84  C.  C.  A.  202;  and  as  was 
said  in  [1903]  2  Ch.  171.  195,  it  is  not  B  court 
of  conscience,  in  the  sense  that  there  being 
no  question  of  legal  liability,  ripe  for  dis- 
cussion, there  was  no  occasion  for  judicial 
action. 

The  distinctive  principles  of  the  courts  of 
equity  are  shown,  also,  by  the  classes  of  cas- 
es in   which    they   exercise  jurisdiction   and 


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give  relief, — allowing  it  to  be  sought  and  ad- 
ministered through  process  and  proceedings 
of  less  formality  and  technicality  than  are 
required  in  proceedings  at  law.  This,  how- 
ever, has  its  limitations,  some  of  its  rules 
"of  pleading  in  defence  being  quite  technical. 
And  it  is  another  peculiar  feature  that  the 
relief  is  administered  by  a  decree  or  process 
adapted  to  the  exigencies  of  the  particular 
case. 

It  was  said  by  Jessel,  M.  R.,  in  L.  R.  13 
Ch.  D.  696,  710:  "It  must  not  be  forgotten 
that  the  rules  of  the  court  of  equity  are  not, 
like  the  rules  of  the  common  law,  supposed  to 
have  been  established  from  time  immemorial. 
It  is  perfectly  well  known  that  they  have 
been  established  from  time  to  time — altered, 
improved,  and  refined  from  time  to  time.  In 
many  cases  we  know  the  names  of  the  chan- 
cellors who  invented  them.  No  doubt  they 
were  invented  for  the  purpose  of  securing 
the  better  administration  of  justice,  but  they 
were  invented.  Take  such  things  as  these: 
The  separate  use  of  a  married  woman,  the 
restraint  on  alienation,  the  modern  rule 
against  perpetuities,  and  the  rules  of  equi- 
table waste.  We  can  name  the  chancellors 
'  who  first  invented  them,  and  state  the  date 
when  they  were  first  introduced  into  equity 
jurisprudence;  and,  therefore,  in  cases  of 
this  kind,  the  older  precedents  in  equity  are 
of  very  little  value.  The  doctrines  are  pro- 
gressive, refined  and  improved ;  and  if  we 
want  to  know  what  the  rules  of  equity  are, 
we  must  look,  of  course,  rather  to  the  more 
modern  than  the  more  ancient  cases." 

Jurisdiction.  It  is  difficult  to  reduce  a 
jurisdiction  so  extensive  and  of  such  diverse 
component  parts  to  a  rigid  and  precise  clas- 
sification. But  an  approach  to  it  may  be 
made.  The  general  nature  of  the  jurisdic- 
tion has  already  been  indicated.  It  exists — 
First,  for  the  purpose  of  compelling  a  dis- 
covery from  the  defendant,  respecting  the 
truth  of  the  matters  alleged  against  him,  by 
an  appeal  to  his  conscience  to  speak  the 
truth.  The  discovery  is  enforced  by  requir- 
ing an  answer  to  the  allegations  in  the  plain- 
tiff's complaint,  in  order  that  the  plaintiff 
may  use  the  matters  disclosed  in  the  answer, 
as  admissions  of  the  defendant,  and,  thus,  evi- 
dence is  secured  for  the  plaintiff,  either  in 
connection  with  and  in  aid  of  other  evidence 
offered  by  the  plaintiff,  or  to  supply  the  want 
of  other  evidence  on  his  part;  or  it  may  be 
to  avoid  the  expense  to  which  the  plaintiff 
must  be  put  in  procuring  other  evidence  to 
sustain  his  case. 

When  the  plaintiff's  complaint,  otherwise 
called  a  bill,  prays  for  relief  in  the  same  suit, 
the  statements  of  the  defendant  in  his  an- 
swer are  considered  by  the  court  in  forming 
a  judgment  upon  the  whole  case.  A  party,  if 
uncertain  to  what  specific  relief  he  is  enti- 
tled, may  frame  his  bill  with  an  alternative 
prayer  for  relief;  Hardin  v.  Boyd,  113  U.  S. 
756,  763,  5  Sup.  Ct  771,  28  L.  Ed.  1141 ;  but 


he  may  not  recognize  a  transaction  and  pray 
for  the  enforcement  of  his  rights  thereunder 
and  ask  that  it  be  set  aside  as  a  fraud,  par- 
ticularly without  specifying  in  what  particu- 
lar;  (Vila  v.  Brown,  144  Fed.  742,  75  C.  C. 
A.  608. 

To  a  certain  extent,  the  statements  of 
the  defendant  in  answer  to  the  bill  are  evi- 
dence for  himself  also. 

The  discovery  which  may  be  required  is 
not  only  of  facts  within  the  knowledge  of 
the  defendant,  but  may,  also,  be  of  deeds  and 
other  writings  in  his  possession. 

The  right  to  discovery  is  not,  however, 
an  unlimited  one :  as,  for  instance,  the  de- 
fendant is  not  bound  to  make  a  discovery 
which  would  subject  him  to'  punishment, 
nor,  ordinarily,  to  discover  the  title  upon 
which  he  relies,  in  his  defence ;  nor  is  the 
plaintiff  entitled  to  require  the  production 
of  all  papers  which  he  may  desire  to  look 
into.  The  limits  of  the  right  deserve  care- 
ful consideration.  The  discovery,  when  had, 
may  be  the  foundation  of  equitable  relief  in 
the  same  suit,  in  which  case  it  may  be  con- 
nected with  all  the  classes  of  cases  in  which 
relief  is  sought ;  or  it  may  be  for  the  pur- 
pose of  being  used  in  some  other  court,  in 
which  case  the  jurisdiction  is  designated  as 
an  assistant  jurisdiction.  Since  the  new 
statutes  on  the  admission  of  evidence  of  par- 
ties, bills  of  discovery  have  practically  fallen 
into  disuse.     See  Discovery. 

Second,  where  the  courts  of  law  do  not, 
or  did  not,  recognize  any  right,  and  there- 
fore could  give  no  remedy,  but  where  the 
courts  of  equity  recognize  equitable  rights 
and,  of  course,  give  equitable  relief.  This 
has  been  denominated  the  exclusive  juris- 
diction. In  this  class  are  trusts,  charities, 
forfeited  and  imperfect  mortgages,  penalties 
and  forfeitures,  imperfect  consideration. 

Uses  and  trusts  have  been  supposed  to 
have  had  their  origin  in  the  restrictions  laid 
by  parliament  upon  conveyances  in  mort- 
main,— that  is,  to  the  church  for  charitable, 
or  rather  for  ecclesiastical,  purposes. 

It  may  well  be  that  the  doctrine  of  equita- 
ble titles  and  estates,  unknown  to  the  com- 
mon law  but  which  could  be  enforced  in 
chancery,  had  its  origin  in  conveyances  to 
individuals  for  the  use  of  the  church  in  or- 
der to  avoid  the  operation  of  these  restric- 
tions,— the  conscience  of  the  feofee  being 
bound  to  permit  the  church  to  have  the  use 
according  to  the  design  and  intent  of  the 
feoffment. 

But  conveyances  in  trust  for  the  use  of 
the  church  were  not  by  any  means  the  only 
cases  in  which  it  was  desirable  to  convey 
the  legal  title  to  one  for  the  use  of  another. 
In  many  instances,  such  a  conveyance  offered 
a  convenient  mode  of  making  provision  for 
those  who,  from  any  circumstances,  were 
unable  to  manage  property  advantageously 
for  themselves,  or  to  whom  it  was  not  de- 
sirable to  give  the  control  of  it;    and  the 


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r 


propriety  In  all  such  cases  of  some  protec- 
tion to  the  beneficiary  is  quite  apparent 
The  court  of  chancery,  by  recognizing  that 
he  had  an  interest  of  an  equitable  character 
which  could  be  protected  and  enforced 
against  the  holder  of  the  legal  title,  exercised 
a  jurisdiction  to  give  relief  in  cases  which 
the  courts  of  common  law  could  not  reach, 
consistently  with  their  principles  and  modes 
of  procedure. 

Mortgages,  which  were  originally  estates 
conveyed  upon  condition,  redeemable  if  the 
condition  won-  performed  at  tlie  day,  but 
absolute  on  non-performance,  the  right  to  re- 
deem  being  thereby  forfeited,  owe  their  ori- 
gin, in  the  modern  conception  of  the  term, 
to  the  court  of  chancery;  which,  acting  at 
first,  perhaps,  in  some  cases  where  the  non- 
performance was  by  mistake  or  accideut, 
soon  recognized  an  equitable  right  of  re- 
demption after  the  day,  as  a  general  rule,  in 
order  to  relieve  against  the  forfeiture.  This 
became  known  as  an  equity  of  redemption, — 
a  designation,  in  use  at  the  present  day,  al- 
though there  has  lon^  been  a  legal  right  of 
redemption  in  such  cases. 

Relief  against  penalties  and  forfeitures 
also  was  formerly  obtained  only  through 
the  aid  of  the  court  of  chancery. 

In  most  of  the  cases  which  fall  under  this 
head,  courts  of  law  now  exercise  a  concur- 
rent jurisdiction. 

Third,  where  the  courts  of  equity  admin- 
ister equitable  relief  for  the  infraction  of 
legal  rights,  in  cases  in  which  the  courts  of 
law.  recognizing  the  right,  give  a  remedy  ac- 
cording to  their  principles,  modes,  and  forms, 
but  the  remedy  is  deemed  by  equity  inade- 
quate to  the  requirements  of  the  case.  This 
is  sometimes  called  the  concurrent  jurisdic- 
tion. This  class  embraces  fraud,  mistake, 
acoid  nt,  administration,  legacies,  contribu- 
tion, and  cases  where  justice  and  conscience 
require  the  cancellation,  or  reformation  of 
instruments,  or  the  rescission,  or  the  specific 
performance  of  contracts.  (See  these  several 
titles.) 

The  adequate  remedy  at  law  to  oust  equi- 
table jurisdiction  must  lie  as  certain,  prompt 
and  efficient  to  attain  the  ends  of  justice  as 
the  remedy  in  equity;  Boyce  v.  Grundy,  3 
Pet.  (U.  S.)  -2)0,  7  L.  Ed.  655;  Williams  v. 
Xecly,  i::i  Fed.  1,  67  C.  C.  A.  171,  69  L.  R.  A. 
232;  Castle  Creek  Water  Co.  v.  City  of 
Aspen,  140  Fed.  8,  76  C  C.  A.  516,  8  Ann. 
Gas.  000;  for  example,  an  action  requiring 
submission  to  jury  of  matters  requiring  ac- 
counting is  insufficient;  Castle  Creek  Water 
Co.  v.  City  of  Aspen,  I  if,  Fed.  8,  70  C.  C.  A. 
171,  8  Ann.  Cas.  660;  Butler  Bros.  Shoe  Co. 
v.  Rubber  Co..  156  Fed.  1,  84  C.  C.  A.  107: 
and  so,  for  another  instance,  if  damages  for 
breach  of  contract  are  too  uncertain  to  be 
assessed  the  failure  to  provide  for  liquidated 
damages  does  not  give  an  equitable  cause  for 
action;  Utz  v.  Wolf,  159  Fed.  696,  86  a  0. 
A.  564. 


The  courts  of  law  relieve  against  fraud, 
mistake,  and  accident  where  a  remedy  can 
be  had  according  to  their  modes  and  forms  : 
but  there  are  many  cases  in  which  the  legal 
remedy  is  inadequate  for  tbe  purpose 
justice. 

The  modes  of  investigation  and  the  pecu- 
liar remedies  of  the  courts  of  equity  are  of- 
ten of  the  greatest  importance  in  this 
of  cases. 

Transfers  to  defeat  or  delay  creditors,  and 
purchases  with  notice  of  an  outstandii 
tie,  come  under  the  head  of  fraud. 

It    has    been    said    that    there    is    a 
amount  of  evidence  required  to  prove  fraud, 
in    equity,    than    there    is    at    law;    but    the 
soundness    of    that    position    may    well    be 
doubted. 

The  court  does  not  relieve  in  all  cases  of 
accident  and  mistake. 

In  many  cases  the  circumstances  are  such 
as  to  require  the  cancellation  or  reformation 
of   written   instruments   or  the   specific   per- 
formance of  contracts,   instead  of   da: 
for  the  breach  of  them. 

Fourth,  where  the  court  of  equity  admin- 
isters a  remedy  because  the  relations  of  the 
parties  are  such  that  there  are  impediments 
to  a  legal  remedy.  PartnershHp  furnishes  a 
marked  instance.  Joint-tenancy  and  mar- 
shalling of  assets  may  be  included.  (See 
these  titles.) 

From  the  nature  of  a  partnership,  there 
are  impediments  to  suits  at  law  between 
the  several  partners  and  the  partnership  in 
relation  to  matters  involved  in  the  partner- 
ship ;  and  impediments  of  a  somewhat  sim- 
ilar character  exist  in  other  casts. 

Fifth,  where  the  forms  of  proceeding  in 
the  courts  of  law  are  not  deemed  adequate 
to  the  due  investigation  of  the  particulars 
and  details  of  the  case.  This  class  includes 
account,  partition,  dower,  ascertainment  of 
boundaries. 

sirth,  where,  from  a  relation  of  trust  and 
confidence,  or  from  consanguinity,  tbe  par- 
ties do  not  stand  on  equal  ground  in  their 
dealings  with  each  other:  as.  the  relations 
of  parent  and  child,  guardian  and  ward,  at- 
torney and  client,  principal  and  agent.  • 
tor  or  administrator  and  legatees  or  dis- 
tributees, truster  and  cestui  que  trust,  etc. 

nth,  where  the  court  jzrant  relief  from 
considerations  of  public  policy,  because  of 
the  mischief  which  would  result  if  the  court 
did  not  interfere.  Marriage-brokage  agrcr- 
ments,  contracts  in  restraint  of  trade,  buying 
and  selling  public  offices,  agreenu  nts  founded 
un  corrupt  considerations,  usury,  gaming, 
and  contracts  with  expectant  heirs,  are  of 
this  class. 

Many  cases  of  this  and  the  precedintr  class 
are  sometimes  considered  under  the  head  of 
construct  ire  fraud. 

Eighth,  where  a  party  from  Incapacity  to 
take  care  of  his  rights  is  under  the  special 


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care  of  the  court  of  equity,  as  infants,  idiots, 
and  lunatics. 

This  is  a  brauch  of  jurisdiction  of  very 
ancient  date,  and  of  a  special  character,  said 
to  be  founded  in  the  prerogative  of  the  king. 

In  this  country  the  court  does  not,  in  gen- 
eral, assume  the  guardianship,  but  exercises 
an  extensive  jurisdiction  over  guardians,  and 
may  hold  a  stranger  interfering  with  the 
property  of  an  infant  accountable  as  if  he 
were  guardian. 

Ninth,  where  the  court  recognizes  an  ob- 
ligation on  the  part  of  a  husband  to  make 
provision  for  the  support  of  his  wife,  or  to 
make  a  settlement  upon  her,  out  of  the  prop- 
erty which  comes  to  her  by  inheritance  or 
otherwise. 

This  jurisdiction  is  not  founded  upon  ei- 
ther trust  or  fraud,  but  is  derived  originally 
from  the  maxim  that  he  who  asks  equity 
should  do  equity. 

Tenth,  where  the  equitable  relief  appro- 
priate to  the  case  consists  in  restraining 
the  commission  or  continuance  of  some  act 
of  the  defendant,  administered  by  means  of 
a  writ  of  injunction. 

Eleventh,  the  court  aids  in  the  procura- 
tion or  preservation  of  evidence  of  the  rights 
of  a  party,  to  be  used,  if  necessary,  in  some 
subsequent  proceeding,  the  court  administer- 
ing no  final  relief. 

See  a  full  note  as  to  equity  jurisdiction 
in  19  Am.  L.  Reg.  N.  S.  563. 

Peculiar  Remedies,  and  the  Manner  of 
Administering  them.  Under  this  head  are 
— specific  performance  of  contracts;  re-exe- 
cution, reformation,  rescission,  and  cancella- 
tion of  contracts  or  instruments ;  restraint 
by  injunction :  bills  quia  timet;  bills  of 
peace;  protection  of  a  party  liable  at  law, 
but  who  has  no  interest,  by  bill  of  interplead- 
er; election  between  two  inconsistent  legal 
rights;  conversion;  priorities;  tacking; 
marshalling  of  securities ;  application  of 
purchase-money.      (See  these  several  titles.) 

In  recent  periods,  the  principles  of  the 
court  of  chancery  have  in  many  instances 
been  acted  on  and  recognized  by  the  courts 
of  law  (as,  for  instance,  in  relation  to  mort- 
gages, contribution,  etc.)  so  far  as  the  rules 
of  the  courts  of  law  admitted  of  their  intro- 
duction. 

In  some  states  the  entire  jurisdiction  has, 
by  statute,  been  conferred  upon  the  courts 
of  law,  who  exercise  it  as  a  separate  and 
distinct  branch  of  their  authority,  upon  the 
principles  and  according  to  the  modes  and 
forms  previously  adopted  in  chancery. 

In  a  few,  the  jurisdictions  of  the  courts 
of  law  and  of  equity  have  been  amalga- 
mated, and  an  entire  system  has  been  sub- 
stituted, administered  more  according  to  the 
principles  and  modes  and  forms  of  equity 
than  the  principles  and  forms  of  the  common 
law. 

It  is  to  be  noted,  however,  that  the  equity 
system  is  not  abolished  or  abridged  by  the 


changes  in  the  courts  which  administer  it, 
and  it  is  held  that  the  constitutional  grant 
of  equity  powers  to  certain  courts  cannot  be 
impaired  by  the  legislature,  so  that  acts  re- 
quiring the  trial  by  jury  of  facts  in  chancery 
cases  are  unconstitutional ;  Brown  v.  Kala- 
mazoo Circuit  Judge,  75  Mich.  274,  42  N.  W. 
827,  5  L.  R.  A.  226,  13  Am.  St.  Rep.  438; 
Callanan  v.  Judd,  23  Wis.  343.  So,  in  an  act 
requiring  the  court  of  chancery  to  direct  an 
issue  in  suits  to  quiet  title,  a  provision  au- 
thorizing that  court  to  set  aside  a  verdict 
and  order  a  new  trial  is  not  unconstitutional 
as  violating  the  division  of  powers  between 
courts  of  equity  and  law ;  Brady  v.  Realty 
Co.,  70  N.  J.  Eq.  748,  64  Atl.  1.078,  8  L,  R.  A. 
(N.  S.)  866,  118  Am.  St.  Rep.  778.  See  an 
admirable  discussion  of  this  head  of  equi- 
table jurisdiction  in  the  opinion  of  Philips, 
J.,  in  Big  Six  Development  Co.  v.  Mitchell, 
138  Fed.  286,  70  C.  C.  A.  569,  1  L.  R.  A.  (N. 
S.)  332,  affirmed  in  the  Circuit  Court  of  Ap- 
peals in  s.  c.  138  Fed.  279,  70  C.  C.  A.  569,  1 
L.  R.  A.  (N.  S.)  332  (with  note),  and  cer- 
tiorari denied  in  id.,  199  U.  S.  606,  26  Sup. 
Ct.  746,  50  L.  Ed.  330. 

Rules  and  Maxims.  In  the  administra- 
tion of  the  jurisdiction,  there  are  certain 
rules  and  maxims  which  are  of  special  sig- 
nificance. 

First.  Equity  having  once  had  jurisdic- 
tion of  a  subject-matter  because  there  was 
no  remedy  at  law,  or  because  the  remedy  is 
inadequate,  does  not  lose  the  jurisdiction 
merely  because  the  courts  of  law  afterwards 
give  the  same  or  a  similar  relief. 

Second.  Equity  follows  the  law.  This  is 
true  as  a  general  maxim.  Equity  follows 
the  law,  except  in  relation  to  those  matters 
which  give  a  title  to  equitable  relief  be- 
cause the  rules  of  law  would  operate  to  sanc- 
tion fraud  or  injustice  in  the  particular  case. 

Third.  Between  equal  equities,  the  law 
must  prevail.  The  ground  upon  which  the 
suitor  comes  into  the  court  of  equity  is  that 
he  is  entitled  to  relief  there.  But  if  his  ad- 
versary has  an  equally  equitable  case,  the 
complainant  has  no  title  to  relief. 

It  has  been  said  that  the  maxim  that 
where  equities  are  equal  relief  will  be  denied 
does  not  apply  to  a  suit  to  reform  a  deed ; 
Union  Ice  Co.  v.  Doyle,  6  Cal.  App.  2S4,  92 
Pac.  112. 

Fourth.  Equality  is  equity:  applied  to 
cases  of  contribution,  apportionment  of  mon- 
eys due  among  those  liable  or  benefited  by 
the  payment,  abatement  of  claims  on  account 
of  deficiency  of  the  means  of  payment,  etc. 

Fifth.  He  who  seeks  equity  must  do  equi- 
ty. A  party  cannot  claim  the  interposition 
of  the  court  for  relief  unless  he  will  do  what 
it  is  equitable  should  be  done  by  him  as  a 
condition  precedent  to  that  relief.  See  the 
eleventh  maxim,  infra. 

See  General  Proprietors  of  Eastern  Divi- 
sion of  New  Jersey  v.  Force's  Ex'rs,  72  N.  J. 
Eq.  56,  127,  68  Atl.  914.    This  maxim  applies 


EQUITY 


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EQUITY 


to  one  seeking  equitable  relief,  whether  he 
be  plaintiff  or  defendant;  Union  Stock  Yards 
Nat.  Bank  v.  Day,  79  Neb.  84",,  113  N.  W.  530 
(where  in  an  action  of  ejectment  an  equi- 
table defence  was  pleaded).  It  was  al 
plied  in  refusing  to  permit  plaintiff  to  dis- 
miss after  having  acquired  advantage  from 
the  suit;  Johnson  City  Southern  Ry.  Co.  v. 
R.  Co.,  148  N.  C.  59,  61  S.  E.  683. 

Sixth.  Equity  considers  that  as  done 
Which  ought  to  have  been  done.  A  maxim 
of  much  more  limited  application  than  might 
at  first  be  supposed  from  the  broad  terms 
in  which  it  is  expressed.  In  favor  of  parties 
who  would  have  had  a  benefit  from  some- 
thing contracted  to  be  done,  and  who  bave 
an  equitable  right  to  have  the  case  consider- 
ed as  if  it  bad  been  done,  equity  applies  this 
maxim.  Illustration:  when  there  is  an 
agreement  for  a  sale  of  land,  and  the  vendor 
dies,  the  land  may  be  treated  as  money,  and 
the  proceeds  of  the  sale,  when  completed,  go 
to  the  distributees  of  personal  estate,  instead 
of  to  the  heir.  If  the  vendee  die  before  the 
completion  of  the  purchase,  the  purchase- 
money  may  be  treated  as  land  for  the  benefit 
of  the  heir. 

Seventh.  Equity  will  not  permit  a  wrong 
without  a  remedy. 

Eighth.  Equity  regards  the  spirit  and  not 
the  letter,  the  intent  and  not  the  form,  the 
substance  rather  than  the  circumstance,  as  it 
is  variously  expressed  by  different  courts. 
See  Moring  v.  Privott,  146  N.  C.  558,  60  S.  E. 
509;  Clinton  v.  Winnard,  135  111.  App.  274; 
Curtin  v.  Krohn,  4  Cal.  App.  131,  87  Pac.  243. 
Ninth.  Where  equities  are  equal  the  first 
in  time  prevails — qui  prior  est  in  tempore, 
potior  est  in  jure. 

Tenth.  Eqwity  imputes  an  intention  to  per- 
form  an  obligation. 

Eleventh.  He  who  comes  into  equity  must 
come  with  clean  hands.  The  inequity  which 
deprives  a  suitor  of  a  right  to  relief  in  a 
court  of  equity  is  not  general  iniquitous  con- 
duct unconnected  with  the  cause  of  action, 
but  evil  practice  or  wrong-doing  in  the  par- 
ticular matter  as  to  which  judicial  protec- 
tion or  redress  is  sought;  Liverpool  &  Lon- 
don &  Globe  Ins.  Co.  v.  Clunie,  88  Fed.  160; 
Woodward  v.  Woodward,  41  N.  J.  Eq.  224,  4 
Atl.  424;  or  where  there  is  some  duty  spring- 
ing from  the  relations  of  the  parties;  Cun- 
ningham v.  Pettigrew,  169  Fed.  335,  94  C.  C. 
A.  457.  A  good  illustration  is  found  in  Tole- 
do Computing  Scale  Co.  v.  Scale  Co..  142 
Fed.  919,  74  C.  C.  A.  89,  where  it  was  held 
that  the  manufacturers  of  a  "butcher's  com- 
puting scale,"  who  advertised  it  as  making  a 
profit  for  butchers  by  counting  fractions 
against  the  purchaser,  could  not  have  equi- 
table relief  against  a  competitor  for  calling 
attention  to  the  fraudulent  character  of  such 
scale.     See  Clean  Hands. 

Twelfth.  It  is  to  the  vigilant  and  not  to 
those  who  sleep  upon  their  rights,  that  Equi- 
ty leads  assistance — vigilantibus  et  non  dor- 


micntibus  cquitas  aubvenit.  This  is  a  mere 
adaptation  or  limit  at  ion  of  the  general  max- 
im, vigilantibus  et  non  dormientilnM  jura 
(or  leges  )   subrenal, it. 

Thirteenth.  Equity  aots  in  personam  and 
not  in  rem.  As  a  result  of  this  principle, 
jurisdiction  of  the  person  gives  power  to 
affect    by   the   decree   pr  tside    the 

jurisdiction;  Wilhite  v.  Skelton,  149  i  ed.  '''7, 
78  C.  C  a.  de  v.  Watts,  6  Cra.  (U. 

S.)  159,  3  L.  Ed.  181;  Carpenter  v.  Sti 
141  U.  8.  105\  11  Sup.  Ct.  960,  35  L.  Ed 
Selover,  Bates  &  Co.  v.  W  f'.  B.  112; 

33  Sup.  Ct  69,  57  L.  Ed.  H<;.    This  power  was 
notably  exercised  in  the  great  ca- 
v.    Lord    Baltimore,    1    Ves.   444.    when 
Chancellor   made   a    decree    for   the    B]  • 
performance  of  a  contract  relating  to  land 
in  the  colonies. 

Fourteenth.  Equity  delights  to  do  justice 
and  not  by  halves. 

Most  of  these  maxims  are  given  by  Francis 
or  Story  and  all  but  the  first  and  last  by 
Indermaur  and  Pomeroy;  all  of  them  are 
recognized  and  stated  by  approved  writers 
on  Equity  and  they  are  here  collected  as  in- 
cluding all  those  principles  which  have 
by  competent  authority  selected  as  funda- 
mental and  designated  as  maxims  of  equity. 
Story  only  enumerates  the  first  six,  and  of 
those  he  states  the  first,  not  as  a  maxim 
strictly  so  termed,  but  as  a  doctrine  of  equi- 
ty. The  last  one  is  given  by  Story  In  his 
Eq.  PI.  §  72,  where  he  quotes  it  from  Talbott. 
Ld.  Ch.,  in  3  P.  Wins.  331. 

Francis  sets  out  fourteen  maxims,  as  he 
terms  them,  but  those  numbered  by  him  VII. 
VIII.  IX,  XI,  XII,  inclusive,  are  not  stated 
supra,  because  they  are  mere  statements  of 
equitable  rules  of  decision,  or  doctrines, 
rather  than  maxims.  These,  briefly  Btated, 
are  that  he  who  received  the  benefit  should 
make,  and  he  who  sustained  the  loss  should 
receive,  satisfaction;  Francis.  Max.  IV  &  V; 
that  equity  relieves  against  accidents,  pre- 
vents mischief  and  multiplicity  of  suits;  id. 
VII,  VIII.  IX;  and  that  equity  will  not  suf- 
fer a  double  satisfaction  nor  permit  advan- 
tage to  be  taken  of  a  forfeiture  when  satis- 
faction  can  be  made;    id.  XI.  XII. 

To  the  above  authorities  reference  may  be 
made  for  the  cases  which  gave  early  expres- 
sion to  these  maxims,  which  have  been  so 
universally  recognized  as  fundamental  that, 
except  in  a  few  cases  of  special  applic 
or  limitation,  the  citations  are  omitted. 

Remedial  Pbockss,  an  A  suit 

in  equity  is  ordinarily  Instituted  by  a   com- 
plaint, or  petition,  called  a  bill;    and  the  de- 
fendant is  served  with   a   writ  of  BUD 
requiring  him  to  appear  and  answer,  called  a 
subpoena. 

In  Pennsylvania   the  suit  is  begun  by   fil- 
ing and  serving  a  copy  of  the  bill,  the  sub- 
having  been  dispensed  with  by  a  rule 
of  court. 
The   forms   of  proceedings   in   equity   are 


EQUITY 


1064 


EQUITY 


such  as  to  bring  the  rights  of  all  persons 
interested  before  the  court;  and,  as  a  gen- 
eral rule,  all  persons  interested  should  be 
made  parties  to  the  bill,  either  as  plaintiffs 
or  defendants. 

There  may  be  amendments  of  the  bill;  or 
a  supplemental  bill, — which  is  sometimes 
necessary  wben  the  case  is  beyond  the  stage 
for  amendment. 

In  case  the  suit  fails  by  the  death  of  the 
party,  there  is  a  bill  of  revivor,  and  after 
the  cause  is  disposed  of,  there  may  be  a  bill 
of  review. 

The  defence  is  made  by  demurrer,  plea,  or 
answer.  If  the  defendant  has  no  interest,  he 
may  disclaim.  Discovery  may  be  obtained 
from  the  plaintiff,  and  further  matter  may 
be  introduced,  by  means  of  a  cross-bill, 
brought  by  the  defendant  against  the  plain- 
tiff, in  order  that  it  may  be  considered  at 
the  same  time.  Issue  is  joined  by  the  plain- 
tiff's filing  a  replication  to  the  defendant's 
answer ;  Sto.  Eq.  PI.  §  S78  n.  But  the  new 
Equity  Rule  31  (1913)  of  the  United  States 
Supreme  Court  (33  Sup.  Ct.  xxvii)  does 
away  Avith  a  replication  unless  required  by  a 
special  order  of  the  court.  New  or  affirma- 
tive matter  in  the  answer  is  deemed  to  be  de- 
nied by  the  plaintiff.  If  the  answer  includes 
a  set-off  or  counter-claim,  the  party  against 
whom  it  is  asserted  must  reply  within  10 
days.  In  some  states,  as  Delaware,  the 
replication  is  entered  as  of  course  without 
filing;  and  special  replications  are  now  as  a 
rule  not  used. 

The  final  process  is  directed  by  the  decree, 
which  being  a  special  judgment  can  provide 
relief  according  to  the  nature  of  the  case. 
This  is  sometimes  by  a  perpetual  injunction. 

There  may  be  a  bill  to  execute,  or  to  im- 
peach, a  decree. 

Evidence  and  Practice.  The  rules  of  evi- 
dence, except  as  to  the  effect  of  the  answer 
and  the  taking  of  the  testimony,  are,  in  gen- 
eral, similar  to  the  rules  of  evidence  in  cases 
at  law.    But  to  this  there  are  exceptions. 

The  answer,  if  made  on  oath,  is  evidence 
for  the  defendant,  so  far  as  it  is  responsive 
to  the  calls  of  the  bill  for  discovery,  and 
as  such  it  prevails,  unless  it  is  overcome  by 
something  more  than  what  is  equivalent  to 
the  testimony  of  one  witness.  If  without 
oath,  it  is  a  mere  pleading,  and  the  allega- 
tions stand  over  for  proof. 

If  the  answer  is  incomplete  or  improper, 
the  plaintiff  may  except  to  it,  and  it  must, 
if  the  exceptions  are  sustained,  be  so  amend- 
ed as  to  be  made  sufficient  and  proper. 

The  case  may  be  heard  on  the  bill  and  an- 
swer, if  the  plaintiff  so  elects,  and  sets  the 
case  down  for  a  hearing  thereon. 

If  the  plaintiff  desires  to  controvert  any 
of  the  statements  in  the  answer,  he  files  a 
replication  by  which  he  denies  the  truth  of 
the  allegations  in  tile  answer,  and  testi- 
mony is  taken. 

The    testimony,   according   to   the   former 


practice  in  chancery,  is  taken  upon  inter- 
rogatories filed  in  the  clerk's  office,  and  pro- 
pounded by  the  examiner,  without  the  pres- 
ence of  the  parties.  But  this  practice  has 
been  very  extensively  modified.  Equity  rule 
4G  (33  Sup.  Ct.  xxxi)  of  the  United  States 
Supreme  Court  (in  effect  February  1,  1913), 
provides  that  the  testimony  of  witnesses 
shall  be  taken  in  open  court  except  as  other- 
wise provided  by  statute  or  by  the  equity 
rules. 

If  any  of  the  testimony  is  improper,  there 
is  a  motion  to  suppress  it. 

The  case  may  be  referred  to  a  master  to 
state  the  accounts  between  the  parties,  or 
to  make  such  other  report  as  the  case  may 
require;  and  there  may  be  an  examination 
of  the  parties  in  the  master's  office.  Excep- 
tions may  be  taken  to  his  report 

The  hearing  of  the  case  is  before  the  equi- 
ty judge,  who  may  make  interlocutory  or- 
ders or  decrees,  and  who  pronounces  the 
final  decree  or  judgment.  There  may  be  a 
rehearing,  if  sufficient  cause  is  shown. 

At  the  present  day,  wherever  equity  forms 
are  used,  the  proceedings  have  become  very 
much  simplified. 

The  system  of  two  distinct  sets  of  tri- 
bunals administering  different  rules  for  the 
adjudication  of  causes  has  been  changed  in 
England.  By  the  Judicature  Acts  of  1873 
and  1876,  the  courts  of  law  and  equity  were 
consolidated  into  one  Supreme  Court  of  Judi- 
cature, in  which  equitable  rights  and  de- 
fences are  recognized  in  all  proceedings  to 
the  same  effect  as  a  court  of  chancery  would 
have  recognized  them  before  the  passing  of 
the  act.  Equitable  remedies  are  substantial- 
ly applied. 

In  America,  the  federal  courts  have  equity 
powers  under  the  constitution,  where  an  ade- 
quate remedy  at  law  does  not  exist;  R.  S.  § 
723;  Smyth  v.  Banking  Co.,  141  U.  S.  656, 
12  Sup.  Ct.  113,  35  L.  Ed.  891 ;  Whitehead  v. 
Shattuck,  13S  U.  S.  146,  11  Sup.  Ct  276,  34 
L.  Ed.  873.  The  adequate  remedy  at  law, 
which  is  the  test  of  the  equitable  jurisdic- 
tion of  the  courts  of  the  United  States,  is 
that  which  existed  when  the  judiciary  act 
of  1789  was  adopted,  unless  subsequently 
changed  by  congress ;  McConihay  v.  Wright, 
121  U.  S.  201,  7  Sup.  Ct.  940,  30  L.  Ed.  932. 
The  equity  jurisdiction  conferred  on  the 
federal  courts  is  the  same  as  that  of  the  for- 
mer court  of  chancery  in  England,  is  subject 
to  neither  limitation  nor  restraint  by  state 
legislation,  and  is  uniform  throughout  the 
states;  Mississippi  Mills  v.  Cohn,  150  U.  S. 
202,  14  Sup.  Ct.  75,  37  L.  Ed.  1052;  Kirby 
v.  R.  Co.,  120  U.  S.  130,  7  Sup.  Ct.  430,  3.0 
L.  Ed.  569;  Smith  v.  Burnham,  2  Sumn. 
612,  Fed.  Cas.  No.  13,018 ;  but  these  are  only 
the  powers  which  are  judicial  in  their  char- 
acter, and  not  such  as  belong  to  the  chancel- 
lor of  England  as  the  keeper  of  the  con- 
science of  the  king,  as  representing  his  per- 
son and  administering  as  his  agent  his  pre- 


EQUITY 


10G5 


EQUITY 


rogatlves  and  duties;  Gallego's  Ex'rs  v.  At- 
torney General,  3  Leigh  (Va.)  450,  24  Am. 
Dec.  650. 

In  the  administration  of  that  jurisdiction 
the  federal  courts  are  not  to  "look  only  to 
the  statutes  of  congress.  The  principles  of 
equity  exist  independently  of,  and  anterior 
to,  all  congressional  legislation,  and  the  stat- 
utes are  either  enunciations  of  those  prin- 
ciples or  limitations  upon  their  application 
in  particular  cases";  U.  S.  v.  Lumber  Co., 
200  U.  S.  321,  26  Sup.  Ct.  2S2,  50  L.  Ed.  499, 
where  it  was  held  that  even  "in  passin 
on  transactions  between  the  government  and 
its  vendees"  the  principles  of  equity  must  be 
borne  in  mind  and  applied,  and  that  al- 
though, while  the  legal  title  to  land  remains 
in  the  government,  the  holder  of  an  equitable 
title  may  not  be  able  to  enforce  his  equity  by 
reason  of  inability  to  sue  the  government  ex- 
cept upon  contract,  he  may  protect  that  equi- 
ty when  sued  by  the  government. 

Equity  jurisdiction  does  not  accrue  to  the 
federal  courts  because  it  is  thought  that 
the  law  as  administered  in  equity  is  more 
favorable  to  a  party  seeking  its  aid  than  the 
law  as  administered  by  the  courts  of  a  state 
in  which  such  party  has  been  sued;  Cable  v. 
Ins.  Co.,  191  U.  S.  2S8,  24  Sup.  Ct.  74,  48  L. 
Ed.   188. 

Courts  of  chancery  were  constituted  in 
some  of  the  states  after  177G;  and  in  Penn- 
sylvania, for  a  short  time,  as  early  as  1723, 
a  court  of  chancery  existed ;  see  Rawle,  Eq. 
in  Penna. ;  and  in  most  of  the  colonies  be- 
fore the  revolution:    Bisph.  Eq.  §  14,  n. 

In  colonial  Pennsylvania,  and  until  the  act 
of  June  16,  1836,  equity,  in  the  absence  of 
courts  of  equity,  was  administered  through 
coninion-law  forms.  It  is  pointed  out  in 
Rawle,  Equity  in  Penna.,  that  it  was  not  first 
and  only  in  Pennsylvania  that  common-law 
courts  enforced  equitable  principles,  and  he 
mentions  several  heads  going  back  to  the 
Year  Books.  But  the  Pennsylvania  courts 
administered  under  common-law  forms  all 
the  principles  and  doctrines  of  equity.  The 
earliest  reported  case  is  Riche  v.  P.roadfield. 
1  Dall.  16,  1  L.  Ed.  IS  (1768).  The  subject 
is  treated  in  Laussat's  Equity  in  Penna.  and 
by  Sidney  G.  Fisher  in  1  L.  Q.  R.  455  (2  Sel. 
Essays  in  Anglo-Amer.  L.  H.  S10).  See  also 
Brightly,  Eq.  in  Penna.  A  paper  in  the  Re- 
port of  the  Texas  Bar  Assoc.  (1890)  states 
that  "Texas  was  unquestionably  the  first 
state  in  the  American  Union  controlled  by 
common-law  principles  to  abolish  the  dis- 
tinction between  law  and  equity  in  the  en- 
forcement of  private  rights  and  redress  of 
private  wrongs." 

At  the  present  time,  distinct  courts  of 
chancery  now  exist  in  but  six  states :  Ala- 
bama, Arkansas,  Delaware,  Mississippi,  New 
Jersey  and  Tennessee.  In  the  greater  num- 
ber of  states  chancery  powers  are  exercised 
by  judges  of  common-law  courts  according  to 
the  ordinary  practice  in  chancery.     In   the 


remaining  states,  the  distinctions  between 
actions  at  law  and  suits  in  equity  have  been 
abolished,  but  certain  equitable  remedies  arc 
still  administered  under  the  statutory  form 
of  the  civil  action.    See  Bisph.  Eq  §  15. 

EQUITY  EVIDENCE.  See  Equitt;  Evi- 
dence. 

EQUITY  PLEADING.  See  EQUITY;  An- 
sweb;  Bill;  Demubbeb;  Plea. 

EQUITY  OF  REDEMPTION.  A  right 
which  the  mortgagor  of  an  es  of  re- 

Ing  it  after  it  has  been  f<  at  law 

by  the  non-payment  at  the  time  appointed  of 
the  money  secured  by  the  mortgage  to  be 
paid,  by  paying  the  amount  of  the  debt,  in- 
terest, and  costs. 

The  phrase  of  equity  of  redemption  is  indiscrimi- 
nately, though  often  incorrectly,  applied  to  the 
right  of  the  mortgagor  to  regain  his  estate,  both 
before  and  after  breach  of  condition.  In  North 
Carolina,  by  statute,  the  former  is  called  a  legal 
right  of  redemption,  and  the  latter  the  equity  of 
redemption,  thereby  keeping  a  just  distinction  be- 
tween these  estates  ;  1  N.  C.  Rev.  Stat.  266  ;  State 
v.  Laval,  4  McCord  (S.  C.)  340.  The  interest  is  rec- 
ognized at  law  for  many  purposes:  as  a  subsisting 
estate,  although  the  mortgagor  in  order  to  enforce 
his  right  Is  obliged  to  resort  to  an  equitable  pro- 
ceeding, administered  generally  in  courts  of  equity, 
but  in  some  states  by  courts  of  law;  Anderson  v. 
Neff,  11  S.  &  R.  (Pa.)  223  ;  or  in  some  states  may 
pay  the  debt  and  have  an  action  at  law  ;  Jackson  v. 
Davis,  18  Johns.  (N.  Y.)  7;  Den  v.  Spinning,  6  N.  J. 
L.  466;  Morgan's  Lessee  v.  Davis,  2  H.  &  McH. 
(Md.)  9. 

This  estate  in  the  mortgagor  is  one  which 
he  may  devise  or  grant;  2  Washb.  R.  P.  40 ; 
and  which  is  governed  by  the  same  rules  of 
devolution  or  descent  as  any  other  estate  in 
lands;  Chamberlain  v.  Thompson.  10  Conn. 
243,  26  Am.  Dec.  390;  2  Hare  35.  lie  may 
mortgage  it;  Bigelow  v.  Willson.  1  Pick. 
(Mass.)  4S5;  and  it  is  liable  for  his  debts; 
Fox  v.  Harding,  21  Me.  104;  Pierce  v.  Pot- 
ter, 7  Watts.  (Pa.)  475;  Freeby  v.  Tupper, 
15  Ohio  467;  "United  States  Bank  v.  Ilutli. 
4  B.  Monr.  (Ky.)  420;  Curtis  v.  Root,  20  111 
53;  Punderson  v.  Brown,  1  Day  (Conu.)  93, 
2  Am.  Dec.  53;  state  v.  Laval,  4  McCord  (S. 
C.)  336;  but  see  Palmer  v 

(X.  Y.)  437;  Goring's  Ex'x  v.  Shrove.  T  Dana 
(Ky.)  67;  Powell  v.  Williams,  14  Ala.  476, 
48  Am.  Dec.  105;  Baldwin  v.  Jenkins.  2:; 
Miss.  206;  Buck  v.  Sherman,  2  DougL  |  Mich.) 
170;  Thornton  v.  Pigg,  24  Mo.  249;  Van  Ness 
v.  Hyatt,  13  Pet.  (U.  S.)  294.  10  L.  Ed.  168; 
and  in  many  other  cases,  if  the  mortgagor 
still  retains  possession,  he  is  held  to  be  the 
owner;  5  Gray  170,  note:  Parish  v.  Gilnian- 
ton,  11  N.  II.  203;  City  of  Norwich  v.  Bub- 
bard,  22  Conn.  5S7 ;  Ralston  v.  Hughes.  13 
111.  469. 

Any  person  who  is  interested  in  the  mort- 
gaged estate,  or  any  part  of  it,  having  a  le- 
gal estate  therein,  or  a  legal  or  equitable 
lien  thereon,  provided  he  comes  in  as  privy 
in  estate  with  the  mortgagor,  may  exereise 
the  right;  including  heirs,  devisees,  execu- 
tors,   administrators,    and   assignees   of    the 


EQUITY  OF  REDEMPTION 


106G 


EQUITY  OF  REDEMPTION 


mortgagor;  Sheldon  v.  Bird,  2  Root  (Conn.) 
509;  Craik's  Adin'rs  v.  Clark,  3  N.  C.  22; 
Merriam  v.  Barton,  14  Vt.  501;  Coombs  v. 
Warren,  34  Me.  89;  Bell  v.  Mayor,  etc.,  of 
New  York,  10  Paige,  Ch.  (N.  Y.)  49;  Smith 
v.  Manning,  9  Mass.  422;  H.  B.  Claflin  Co. 
v.  Banking  Co.,  113  Fed.  958;  Bovey  De 
Laittre  Lumber  Co.  v.  Tucker,  48  Minn.  223, 
50  N.  W.  1038;  subsequent  incumbrancers; 
Burnett  v.  Denniston,  5  Johns.  Ch.  (N.  Y.) 
35;  Cooper  v.  Martin,  1  Dana  (Ky.)  23; 
Farnum  v.  Metcalf,  8  Cush.  (Mass.)  46; 
Hoover  v.  Johnson,  47  Minn.  434,  50  N.  W. 
475;  judgment  creditors;  Dabney  v.  Green, 
4  Hen.  &  M.  (Va.)  101,4  Am.  Dec.  503;  Elliot 
v.  Patton,  4  Yerg.  (Tenn.)  10;  Kent  v.  Laf- 
fan,  2  Cal.  595;  Bowen  v.  Van  Gundy,  133 
Ind.  670,  33  N.  E.  687;  Schroeder  v.  Bauer, 
140  111.  135,  29  N.  E.  560 ;  tenants  for  years ; 
Loud  v.  Lane,  8  Mete.  (Mass.)  517;  even  if 
only  tenant  of  a  portion  of  the  land  mort- 
gaged;  Kebabian  v.  Shinkle,  26  R.  I.  505, 
59  Atl.  743 ;  one  having  an  easement ;  Bacon 
v.  Bowdoin,  22  Pick.  (Mass.)  401;  one  hav- 
ing an  interest  as  a  partner ;  Emerson  v. 
Atkinson,  159  Mass.  356,  34  N.  E.  516;  a 
jointress;  1  Vern.  190;  2  Wh.  &  T.  Lead. 
Cas.  752;  dowress  and  tenant  by  curtesy; 
Eaton  v.  Simonds,  14  Pick.  (Mass.)  98;  Jack- 
son v.  Mfg.  Co.,  86  Ark.  591,  112  S.  W.  161, 
20  L.  R.  A.  (N.  S.)  454;  Davis  v.  Mason,  1 
Pet.  (U.  S.)  503,  7  L.  Ed.  239;  Gatewood  v. 
Gatewood,  75  Va.  407 ;  Wilkins  v.  French,  20 
Me.  Ill;  Denton  v.  Nanny,  8  Barb.  (N.  Y.) 
618;  Wade  v.  Miller,  32  N.  J.  L.  296;  Hart 
v.  Chase,  46  Conn.  207;  Robinson  v.  Lake- 
nan,  28  Mo.  App.  135  (but  to  be  endowed  by 
the  law,  the  widow  must  pay  the  mortgage; 
Rossiter  v.  Cossit,  15  N.  H.  38)  ;  a  widow 
who  had  joined  in  the  mortgage;  McArthur 
v.  Franklin,  15  Ohio  St.  485 ;  Posten  v.  Mil- 
ler, 60  Wis.  494,  19  N.  W.  540;  McGough  v. 
Sweetser,  97  Ala.  361,  12  South.  162,  19  L. 
R.  A.  470;  34  U.  C.  Q.  B.  389;  or  where  the 
husband  had  mortgaged  prior  to  the  mar- 
riage; Merselis  v.  Van  Riper,  55  N.  J.  Eq. 
618,  38  Atl.  196;  or  where  she  had  joined  in 
the  mortgage  but  the  equity  of  redemption 
was  reserved  to  the  husband  alone;  [1894] 
2  Ch.  133;  and  where  she  had  released  her 
dower,  she  was  entitled  to  redeem  as  dow- 
ress, though  the  dower  had  not  been  assign- 
ed; Gibson  v.  Crehore,  5  Pick.  (Mass.)  146 
(followed  in  McCabe  v.  Bellows,  1  Allen 
[Mass.]  269)  ;  Simonton  v.  Gray,  34  Me.  50; 
also  where  she  did  not  join  in  the  mortgage, 
which  was  for  purchase  money;  May  v. 
Fletcher,  40  Ind.  575  (overruling  Fletcher  v. 
Holmes,  32  id.  497) ;  Wing  v.  Ayer,  53  Me.  138 ; 
Wheeler  v.  Morris,  2  Bosw.  (N.  Y.)  524;  and 
she  may  redeem  where  the  husband  alone 
had  given  a  second  mortgage ;  Hays  v.  Cretin, 
102  Md.  695,  62  Atl.  1028,  4  L.  R.  A.  (N.  S.) 
1039;  so  a  widow,  though  not  entitled  under 
the  statute  to  redeem  as  such,  may  do  so 
when  the  mortgage  property  is  the  family 
homestead;  Walden  v.  Speigner,  87  Ala.  379, 


6  South.  81 ;  and  where  she  had  not  joined  in 
a  mortgage  during  coverture,  she  was  held, 
on  a  bill  to  redeem,  dowable  of  the  whole 
premises  and  not  merely  in  the  equity  of  re- 
demption and  she  was  not  required  to  re- 
deem; Opdyke  v.  Bartles,  11  N.  J.  Eq.  133. 
A  wife  is  entitled  by  reason  of  her  in- 
choate right  of  dower  to  redeem  during  the 
lifetime  of  her  husband ;  Lamb  v.  Montague, 
112  Mass.  352;  Mackenna  v.  Trust  Co.,  184 
N.  Y.  411,  77  N.  E.  721,  3  L.  R.  A.  (N.  S.) 
1068,  112  Am.  St.  Rep.  620,  6  Ann.  Cas.  471 ; 
Gatewood  v.  Gatewood,  75  Va.  413;  and 
her  equity  of  redemption  is  stronger  in  case 
of  homestead  property ;  Moore  v.  Smith, 
95  Mich.  71,  54  N.  W.  701 ;  Smith  v.  Hall,  67 
N.  H.  200,  30  Atl.  409. 

A  mortgagee  for  adequate  value  and  in 
good  faith  may  acquire  the  equity  of  re- 
demption ;  Wilson  v.  Vanstone,  112  Mo.  315, 
20  S.  W.  612;  and  a  second  mortgagee  who 
purchases  such  equity  is  entitled  to  any  pay- 
ments that  may  have  been  made  on  the  first 
mortgage,  but  which  were  not  credited  there- 
on; Babbitt  v.  McDermott  (N.  J.)  26  Atl. 
889. 

Where  the  necessary  amount  has  been  ten- 
dered within  the  statutory  period  for  re- 
demption, it  can  be  followed  up  by  suit  to 
redeem  at  any  time  before  the  right  to  bring 
suit  is  barred ;  Wood  v.  Holland,  57  Ark. 
198,  21  S.  W.  223.  A  court  of  equity  has  the 
discretion  governed  by  the  equities  of  each 
case,  to  name  terms  on  which  it  will  let  in  a 
party  to  redeem ;  Hannah  v.  Davis,  112  Mo. 
599,  20  S.  W.  686. 

Where  a  bill  to  redeem  is  filed  before  the 
debt  is  due,  it  must  be  dismissed,  although 
the  hearing  is  not  had  until  after  the  debt 
is  due;  Bernard  v.  Toplitz,  160  Mass.  162,  35 
N.  E.  673,  39  Am.  St.  Rep.  465. 

Any  provision  or  stipulation  in  a  mortgage 
which  will  fetter  or  "clog  the  equity  of  re- 
demption" (as  the  phrase  goes)  is  void; 
[1902]  A.  C.  24;  [1903]  A.  C.  253;  and  these 
two  cases  in  the  House  of  Lords  may  be  con- 
sidered as  settling  the  question  in  England 
after  many  and  varying  decisions  since  the 
leading  case  of  Howard  v.  Harris,  1  Vern. 
33.  The  same  doctrine  prevails  in  this  coun- 
try ;  Parmer  v.  Parmer,  74  Ala.  285 ;  Walling 
v.  Aiken,  1  McMul.  Eq.  (S.  C.)  1;  Clark  v. 
Henry,  2  Cow.  (N.  Y.)  324;  Quartermous  v. 
Kennedy,  29  Ark.  544;  Baxter  v.  Child,  39 
Me.  110;  Stover's  Heirs  v.  Bounds'  Heirs,  1 
Ohio  St.  107;  Bayley  v.  Bailey,  5  Gray 
(Mass.)  505;  Hazeltine  v.  Granger,  44  Mich. 
503,  7  N.  W.  74.  The  "equity  of  redemption 
is  inseparably  connected  with  a  mortgage 
and  the  right  cannot  be  abandoned  by  any 
stipulation  of  the  parties  made  at  the  time, 
even  if  embodied  in  the  mortgage" ;  Peugh 
v.  Davis,  96  U.  S.  332,  24  L.  Ed.  775 ;  the  rule 
protecting  the  equity  of  redemption  is  "well 
settled"  and  "characterized  by  a  jealous  and 
salutary  policy,"  and  a  sale  by  the  mortgagor 
must  be  almost  as  closely  examined  as  one 


EQUITY  OF  REDEMPTION 


10G7 


EQUITY  OF  REDEMPTION 


by  a  ceatui  que  trust;  Villa  v.  Rodriguez,  12 
Wall.  (U.  S.i  323,  'JO  L.  Ed.  406. 

The  doctrine  that  equity  will  not  permit 
the  parties  to  a  mortgage  to  "clog  the  equi- 
ty of  redemption"  is  only  another  expn 
of  the  maxim  "once  a  mortgage  always  a 
mortgage";  1  Vera.  33  (where  the  latter  ex- 
pression  seems  to  have  originated). 

The  provision  is  invalid,  not  only  if  con- 
tained in  the  mortgage,  but  also  if  there  is 
a  separate  contract  which  is  part  of  the  same 
transaction,  whether  in  writing  or  by  parol; 
Mooney  v.  Byrne,  1G3  N.  Y.  8G,  57  N.  B.  163  ; 
Turpie  v.  Lowe,  114  Ind.  37,  15  N.  I- 
Wright  v.  Bates,  13  Vt.  341;  [1904]  A.  C.  323; 
11  Ir.  Ch.  ;i<;7;  [1892]  A.  C.  1;  Plummer  v. 
Use,  41  Wash.  5,  S2  Pac.  1009,  2  L.  R.  A.  (N. 
S.)  0127,  111  Am.  St.  Rep.  997;  First  Nat 
Bank  of  David  City  v.  Sargeant,  65  Neb.  594, 
91  N.  W.  595,  59  L.  R.  A.  296;  Ind.  Rep.  Al- 
ia ha  Lad  Series  559  (where  the  rule  was  en- 
forced in  India)  ;  though  not  necessarily  of 
the  same  date ;  Batty  v.  Snook,  5  Mich.  231 ; 
Tennery  v.  Nicholson,  87  111.  464;  Bradbury 
v.  Davenport,  114  Cal.  593,  46  Pac.  1062,  55 
Am.  St.  Rep.  92;  but  a  separate  and  inde- 
pendent agreement,  subsequent  to  the  mort- 
gage, depriving  the  mortgagor,  in  effect,  of 
his  right  to  redeem,  has  been  held  valid ; 
[1902]  A.  C.  461 ;  Gleason's  Adin'x  v.  Burke, 
20  N.  J.  Eq.  300;  Wynkoop  v.  Cowing,  21 
111.  570;  Bradbury  v.  Davenport,  120  Cal. 
52  Pac.  301;  Trull  v.  Skinner,  17  Pick. 
(Mass.)  213  (where  the  subject  is  discussed 
by  Shaw,  C.  J.)  ;  Shouler  v.  Bonander,  80 
Mich.  531,  45  N.  W.  487 ;  McMillan  v.  Jewett, 
S5  Ala.  478,  5  South.  145 ;  though  it  "will  he 
closely  scrutinized  to  guard  the  debtor  from 
oppression"  and  there  must  be  a  new  and 
adequate  consideration ;  Linnell  v.  Lyford, 
72  Me.  280;  Brown  v.  Gaffney,  28  111.  149; 
and  indeed  cases  may  be  found  which  treat 
the  subject  wholly  with  respect  to  the  ques- 
tion whether  the  transaction  was  unconscion- 
able; Pritchard  v.  Elton,  38  Conn.  434;  or 
deny  that  there  is  any  fiduciary  relation  be- 
tween a  mortgagor  and  mortgagee;  Do  Mar- 
tin v.  Phelan,  115  Cal.  538,  47  Pac.  356,  56 
Am.  St.  Rep.  115.     See  Mortgage. 

Many  of  the  cases  cited  supra  are  those 
of  absolute  conveyances  held  to  be  mortgages 
carrying  an  equity  of  redemption  and  this 
fact  may  he  shown  by  parol ;  Strong  v.  Stew- 
art, 4  Johns.  Ch.  (N.  Y.)  167;  Cullen  v. 
Carey,  146  Mass.  50,  15  N.  E.  131  ;  Miller  v. 
Thomas,  14  111.  428. 

So  where  the  parties  to  a  mortgage  nego- 
tiated an  absolute  sale  for  a  larger  amount, 
with  conveyance  in  fee  and  a  lease  with  an 
option  to  purchase  it'  rent  were  punctually 
paid,  a  default  was  held  fatal  to  the  right  to 
repurchase ;  1  Russ.  &  M.  506 ;  it  being  no 
debt,  but  a  conditional  sale,  which  carries 
no  equity  of  redemption:  Conway  v.  Alex- 
ander, 7  Cra.  (U.  S.)  218,  3  L.  Ed.  321; 
Haynie  v.   Robertson,  58  Ala.   37 ;  Robinson 


v.  Cropsey,  2  Edw.  Ch.  (N.  Y.)  138;  but  the 
transaction     will     he     closely     scrutii. 

•    v.  Steadman,  49  I  a  full 

discussion  of  the  "Tl  the  Equity  of 

Redemption"  by  Prof.  Bruce  Wyman  in  '-'l 
Ilarv.  L.   Rev.  459. 

Where  a  mortgagee  of  the  equitable  inter- 
est  of    the    beneficiary    in  a    resulting 
purchased  the  equity  of  r<  n  of  such 

beneficiary,  they  did   not   me  such 

merger  was  not  for  the  interest  of  the  mort- 
gagee; Coryell  v.  Klehm,  157  111.  463,  41  X. 
0.  864. 

A  foreclosure  sale  without  redemption  may 
be  decreed  in  case  of  a  mortgage  of  a  rail- 
rqad  or  a  business  plant,  of  which  the  value 
is  in  keeping  it  in  its  entirety;  Hammock 
v.  Loan  &  Trust  Co.,  105  U.  S.  77,  26  L.  Ed. 
1111;  even  when  a  state  statute  provides 
that  all  sales  of  real  estate  shall  be  subject 
to  redemption;  Pacific  Northwest  Packing 
Co.  v.  Allen,  116  Fed.  312,  54  C.  C.  A.  648; 
Sioux  City  Terminal  R.  &  Warehouse  Co.  v. 
Trust  Co.,  82  Fed.  124,  27  C.  C.  A.  To. 

Seo  Mortgage. 

EQUIVALENT.  Of  the  same  value. 
Sometimes  a  condition  must  be  literally  ac- 
complished in  forma  specified;  but  some  may 
be  fulfilled  by  an  equivalent,  per  wqvipott  rM, 
when  such  appears  to  be  the  intention  of  the 
parties:  as,  if  I  promise  to  pay  you  one 
hundred  dollars,  and  then  die,  my  executor 
may  fulfill  my  engagement;  for  it  is  equiva- 
lent to  you  whether  the  money  be  paid  to 
you  by  me  or  by  him.  Rolle,  Ahr.  451.  For 
its  meaning  in  patent  law,  see  Tyler  v.  Bos- 
ton, 7  Wall.  (U.  S.)  327,  19  L.  Ed.  93;  Pat- 
ent. 

EQUIVOCAL.     Having  a  double  sense. 

In  the  construction  of  contracts,  it  is  a 
general  rale  that  when  an  expression  may 
be  taken  in  two  senses,  that  shall  be  pre- 
ferred which  gives  it  effect  See  Construc- 
tion ;  Interpretation. 

EQUULEUS  (Lat.).  A  kind  of  rack  for 
extorting  confessions.     Encyc.  Lond. 

ERASURE.  The  obliteration  of  a  writing. 
The  effect  of  an  erasure  is  not  per  se  to  de- 
stroy the  writing  in  which  it  occurs,  but  is 
a  question  for  the  jury,  and  will  render  the 
writing  void  or  not.  under  the  same  circum- 
stances as  an  interlineation.  See  11  Co.  vs  ; 
5  Bingh.  1S.;:  Bailey  v.  Taylor.  11  Conn.  531, 
29  Am.  Dec.  321;  S.-lihellas  v.  Reeves-  Cura- 
tor, 3  La.  56;  Brooks  v.  Allen.  (12  Ind.  401; 
Whittlesey  v.  Hughes,  39  Mo.  34;  Cole  v. 
Hills.  11  X.  II.  227;  Page  v.  Donaher,43  Wis. 
221  ;  Dodge  v.  Haskell.  69  Me.  429;  Simpson 
v.  Davis.  110  Mass.  269,  20  Am.  Rep.  324. 
Se,>  Alteration;  Interlineation. 

ERCISCUNDUS  (Lat.  erviseere).  For  di- 
viding.  Familia •  crcisruitda?  actio.  An  action 
for  dividing  a  way,  goods,  or  any  matter  of 
inheritance.    Vicat,  Voc.  Jur. ;  Calvinus,  Lex. 


ERECTION 


1068 


ERROR 


ERECTION.  This  term  is  generally  used 
of  a  completed  building.  McGary  v.  People, 
45  N.  Y.  153;  Shaw  v.  Hitchcock,  119  Mass. 
254 ;  but  it  is  held  to  be  of  wider  import ;  it 
may  include  trade  fixtures;  17  W.  R.  153; 
or  a  fence ;  36  J.  P.  743. 

The  repairing,  alteration,  and  enlarging, 
or  the  removal  from  one  spot  to  another,  of 
a  building,  is  not  erection  within  the  mean- 
ing of  a  statute  forbidding  the  erection  of 
wooden  buildings;  Brown  v.  Hunn,  27  Conn. 
332,  71  Am.  Dec.  71;  Douglass  v.  Com.,  2 
Rawle  (Pa.)  262;  Martine  v.  Nelson,  51  111. 
422.  The  moving  of  a  building  is  not  an 
erection  of  a  building;  Trask  v.  Searle,  121 
Mass.  229;  but  the  painting  of  a  house  has 
been  held  to  be  part  of  the  erection;  Mar- 
tine  v.  Nelson,  51  111.  422.     See  Lien. 

EREGIMUS  (Lat.  we  have  erected).  A 
word  proper  to  be  used  in  the  creation  of  a 
new  office  by  the  sovereign.  Bac.  Abr.  Of- 
fices, E. 

EROSION.  The  gradual  eating  away  of 
the  soil  by  the  operation  of  currents  or  tides. 
Mulry  v.  Norton,  100  N.  Y.  433,  3  N.  E.  5S1, 
53  Am.  Rep.  206.  See  Riparian  Proprietor; 
Accretion. 

EROTIC  MANIA,  EROTOMANIA.  In 
Medical  Jurisprudence.  A  name  given  to  a- 
morbid  activity  of  the  sexual  propensity.  It 
is  a  disease  or  morbid  affection  of  the  mind, 
which  fills  it  with  a  crowd  of  voluptuous  im- 
ages, and  hurries  its  victim  to  acts  of  the 
grossest  licentiousness,  often  in  the  absence 
of  any  lesion  of  the  intellectual  powers.  It 
is  to  be  distinguished  from  Nymphomania 
and  Satyriasis.  See  Krafft-Ebing,  Psyco- 
pathia   Sexualis,  Chaddock's  ed. ;  Mania. 

ERRANT  (Lat.  errare,  to  wander).  Wan- 
dering. Justices  in  eyre  were  formerly  said 
to  be  errant  (itinerant).     Cowell. 

ERRONEOUS.  Deviating  from  the  law. 
Thompson  v.  Doty,  72  Ind.  338. 

ERROR.  A  mistake  in  judgment  or  devia- 
tion from  the  truth  in  matters  of  fact,  and 
from  the  law  in  matters  of  judgment. 

Error  of  fact  will  excuse  the  party  acting 
illegally  but  honestly,  in  many  cases,  will 
avoid  a  contract  in  some  instances,  and 
when  mutual  will  furnish  equity  with  a 
ground  for  interference ;  Norton  v.  Marden, 
15  Me.  45,  32  Am.  Dec.  132;  Wheadon  v. 
Olds,  20  Wend.  (N.  Y.)  174;  Eagle  Bank  of 
New  Haven  v.  Smith,  5  Conn.  71,  13  Am. 
Dec.  37;  Bond  v.  Hays,  12  Mass.  36.  See 
Mistake;  Ignorance. 

Error  in  law  will  not,  in  general,  excuse 
a  man  for  its  violation.  A  contract  made 
under  an  error  in  law  is,  in  general,  binding ; 
for,  were  it  not  so,  error  would  be  urged  in 
almost  every  case;  Bisph.  Eq.  187.  2  East 
469.  See  Storrs  v.  Barker,  6  Johns.  Ch.  (N. 
Y.)  166,  10  Am.  Dec.  316;  Waite  v.  Leggett, 
8  Cow.  (N.  Y.)  195,  18  Am.  Dec.  441 ;  2  J.  & 


W.  249 ;  1  Y.  &  C.  232 ;  6  B.  &  C.  671.  But 
a  foreign  law  will  for  this  purpose  be  con- 
sidered as  a  fact;  Norton  v.  Marden,  15  Me. 
45,  32  Am.  Dec.  132 ;  Haven  v.  Foster,  9  Pick. 
(Mass.)  112,  19  Am.  De^.  353;  2  Pothier,  Obi. 
369,  etc. 

ERROR,  CONFESSION  OF.  See  Appeal 
and  Error. 

ERROR,  WRIT  OF.  See  Appeal  and  Er- 
ror. 

ESCAMBI0.  A  writ  granting  power  to  an 
English  merchant  to  draw  a  bill  of  exchange 
on  another  who  is  in  a  foreign  country.  Reg. 
Orig.  194.  Abolished  by  Stats.  59  Geo.  III. 
c.  49,  and  26  &  27  Vict  c.  125. 

ESCAMBIUM.     Exchange,  which  see. 

ESCAPE.  The  deliverance  of  a  person 
who  is  lawfully  imprisoned,  out  of  prison, 
before  such  a  person  is  entitled  to  such  de- 
liverance by  law.  Colby  v.  Sampson,  5 
Mass.  310. 

The  voluntarily  or  negligently  allowing  any 
person  lawfully  in  confinement  to  leave  the 
place.    2  Bish.  Cr.  L.  §  917. 

Departure  of  a  prisoner  from  custody  be- 
fore he  is  discharged  by  due  process  of  law. 

Escape  takes  place  without  force;  prison- 
breach,  with  violence;  rescue,  through  the 
intervention  of  third  parties. 

Actual  escapes  are  those  which  take  place 
when  the  prisoner  in  fact  gets  out  of  prison 
and  unlawfully  regains  his  liberty. 

Constructive  escapes  take  place  when  the 
prisoner  obtains  more  liberty  than  the  law 
allows,  although  he  still  remains  in  confine- 
ment. Bac.  Abr.  Escape  (B);  Plowd.  17; 
Colby  v.  Sampson,  5  Mass.  310;  Steere  v. 
Field,  2  Mas.  486,  Fed.  Cas.  No.  13,350. 

Negligent  escape  takes  place  when  the  pris- 
oner goes  at  large,  unlawfully,  either  be- 
cause the  building  or  prison  in  which  he  is 
confined  is  too  weak  to  hold  him,  or  because 
the  keeper  by  carelessness  lets  him  go  out  of 
prison. 

Voluntary  escape  takes  place  when  the 
prisoner  has  given  to  him  voluntarily  any 
liberty  not  authorized  by  law.  Colby  v. 
Sampson,  5  Mass.  310;  Lowry  v.  Barney,  2 
D.  Chip.  (Vt.)   11. 

When  a  man  is  imprisoned  in  a  proper 
place  under  the  process  of  a  court  having 
jurisdiction  in  the  case,  he  is  lawfully  im- 
prisoned, notwithstanding  the  proceedings 
may  be  irregular;  1  Crawf.  &  D.  203;  see 
Com.  v.  Barker,  133  Mass.  399;  but  if  the 
court  has  not  jurisdiction  the  imprisonment 
is  unlawful,  whether  the  process  be  regular 
or  otherwise.  Bacon,  Abr.  Escape  in  Civil 
Cases  (A  1)  ;  Scott  v.  Shaw,  13  Johns.  (N. 
Y.)  378;  Ontario  Bank  v.  Hallett,  8  Cow. 
(N.  Y.)  192;  Austin  v.  Fitch,  1  Root  (Conn.) 
288.  See  State  v.  Leach,  7  Conn.  452,  18  Am. 
Dec.  113. 

Letting  a  prisoner,  confined  under  final 
process,    out   of   prison   for   any,    even   the 


ESCAPE 


10G9 


ESCAPE 


shortest,  time,  is  an  escape,  although  he  aft- 
erwards return;  2  W.  Bla.  1048;  Browning's 
Kx'r  v.  Kittenhouse,  40  N.  J.  L.  230;  Servis 
v.  Marsh,  38  Fed.  794;  De  Grand  v.  Hunne- 
well,  11  Mass.  1G0;  and  this  may  be  (as  in 
the  case  of  imprisonment  under  a  ca.  .set 
although  an  officer  may  accompany  him;  3 
Co.  44  a;  1  B.  &  P.  24.  Where  an  Insolvent 
debtor  whose  discharge  has  been  refused  by 
the  court,  surrenders  himself  to  the  keeper 
of  a  prison,  who  will  not  receive  him  because 
he  has  no  writ  or  record  showing  that  he  is 
an  insolvent  debtor  and  is  not  in  charge  of 
an  ollicer,  the  surrender  is  not  sufficient  to 
make  the  keeper  liable  for  the  debt  in  case 
of  the  debtor's  escape:  Saunders  v.  Perkins, 
140  Pa.  102,  21  Atl.  257. 

In  criminal  cases,  the  prisoner  is  indicta- 
ble for  a  misdemeanor,  whether  the  escape 
be  negligent  or  voluntary ;  2  Hawk.  PI.  C. 
189;  Cro.  Car.  209;  State  v.  Doud,  7  Conn. 
384;  State  v.  Brown.  S2  N.  C.  585;  and  the 
officer  is  also  indictable;  Martin  v.  State,  32 
Ark.  124 ;  State  v.  Ritchie,  107  N.  C.  857,  12 
S.  B.  251.  If  the  offence  of  the  prisoner  was 
a  felony,  a  voluntary  escape  is  a  felony  on 
the  part  of  the  officer;  2  Hawk.  PL  C.  c.  19, 
S  25 ;  if  negligent,  it  is  a  misdemeanor  only 
in  any  case;  2  Bish.  Cr.  L.  §  925.  See  State 
v.  Sparks,  78  Ind.  1GG.  It  is  the  duty  of  the 
officer  to  rearrest  after  an  escape;  Clark  v. 
Cleveland,  0  Hill  (N.  Y.)  344;  People  v. 
Hanchett,  111  111.  90;  1  Russ.  Cr.  572.     . 

In  civil  cases,  a  prisoner  may  be  arrested 
who  escapes  from  custody  on  mesne  pro- 
cess, and  the  officer  will  not  be  liable  if  he 
rearrest  him ;  Cro.  Jac.  419 ;  but  if  the  es- 
cape be  voluntary  from  imprisonment  on 
mesne  process,  and  in  any  case  if  the  escape 
be  from  final  process,  the  officer  is  liable  in 
damages  to  the  plaintiff,  and  is  not  excused 
by  retaking  the  prisoner;  2  B.  &  A.  .',<;; 
Doane  v.  Baker,  6  Allen  (Mass.)  260.  Noth- 
ing but  an  act  of  God  or  the  enemies  of  the 
country  will  excuse  an  escape.  Fairchild  v. 
Case,  24  Wend.  (N.  Y.)  381;  Rainey's  Ex'rs 
v.  Dunning.  6  N.  C.  386;  Shattuek  v.  State, 
51  Miss.  575.  See  Lash  v.  Ziglar,  27  N.  C. 
702;  Shuler  v.  Garrison,  5  W.  &  S.  (Pa.) 
455. 

Attempts  to  escape  by  one  accused  of 
crime  are  presumptive  of  guilt,  and  the  con- 
duct of  a  defendant  in  arrest,  either  hefore 
or  after  being  accused  of  the  crime,  may  be 
competent  evidence  against  him,  as  indicat- 
ing a  guilty  mind;  Bowles  v.  State,  5S  Ala. 
335;  People  v.  Stanley,  47  Cal.  113,  17  Am. 
Rep.  401.  Where  a  prisoner  being  in  the  cor- 
ridor of  a  jail  unlocks  a  door  between  the 
corridor  and  a  cell,  and  thence  escapes,  he 
commits  prison  breach;  Randall  v.  State,  53 
N.  J.  L.  488.  22  Atl.  4G.  An  unsuccessful  at- 
tempt at  prison  breach  is  indictable;  People 
v.  Rose,  12  Johns.  (N.  Y.)  339. 

On  an  escape  and  recapture,  the  party  has 
a  day  in  court  to  deny  his  identity  as  the 


person  sentenced;  Com.  v.  Hill,  1S5  Pa.  397, 
39  Atl.  lor,.",. 

See  Whart.  Cr.  L.  §  1667;  2G  Am.  L.  Reg. 
345;  Flight;  Pklsoi 

ESCAPE  WARRANT.     A  warrant  add 
ed  to  all  sheriffs  throughout  England,  to  re- 
take an  escaped  prisoner  for  debt,  and 
mit  him  to  gaol  till  the  debt  is  satisfied. 

ESCHEAT  (Ft.  escheoir,  to  happen).    An 

accidental  reverting  of  lands  to  the  original 
lord. 

Coke  says  the  word  "signifieth  properly 
when  by  accident  the  lands  fall  to  the 
of  whom  they  are  holden,  in  which  case  we 
say  the  fee  is  escheated."  And  he  enumer- 
ates the  instances  of  failure  of  blood  on  the 
one  hand  and  per  delictum  tencntis,  1.  e.,  f"r 
felony,  on  the  other.     Co.  Litt.  13a. 

An  obstruction  of  the  course  of  descent, 
and  a  consequent  determination  of  the  ten- 
ure, by  some  unforeseen  contingency ;  in 
which  case  the  land  naturally  results 
by  a  kind  of  reversion,  to  the  original  grantor 
or  lord  of  the  fee ;   2  Bla.  Com.  244  et  seq. 

Care  must  be  taken  to  distinguish  between  for- 
feiture of  lands  to  the  king  and  this  species  of  es- 
cheat to  the  lord;  which  by  reason  of  their  simili- 
tude in  some  circumstances,  and  because  the  crown 
is  very  frequently  the  immediate  lord  of  the  fee, 
and  therefore  entitled  to  both,  have  been  often  con- 
founded together.  Forfeiture  of  lands,  and  of  what- 
ever else  the  offender  possessed,  was  the  doctrine 
of  the  old  Saxon  law,  as  a  part  of  punishment  for 
an  offence,  and  does  not  at  all  relate  to  the  feodal 
system,  nor  is  the  consequence  of  any  seigniory  or 
lordship  paramount;  but,  being  a  prerogaih 
c-d  in  the  crown,  was  neither  superseded  nor  dimin- 
ished by  the  introduction  of  the  Norman  tenures,  a 
fruit  and  consequence  of  which,  escheat  must  un- 
doubtedly be  reckoned.  Escheat  therefore  operates 
in  subordination  to  this  more  ancient  and  superior 
law  of   forfeiture. 

The  doctrine  of  escheat  upon  attainder,  taken 
singly,  is  this:  That  the  blood  of  the  tenant,  by  the 
ion  of  any  felony  (under  which  denomina- 
tion all  treasons  were  formerly  comprised),  is  cor- 
rupted and  stained  and  the  original  donation  of  the 
feud  is  thereby  determined,  it  being  always  granted 
to  the  vassal  on  the  implied  condition  of  dum  bene 
se  gesserit.  Upon  the  thorough  demonstration  of 
which  guilt,  by  legal  attainder,  the  feodal  c 
and  mutual  bond  of  fealty  are  held  to  be  broken, 
the  estate  instantly  falls  back  from  the  offender  to 
the  lord  of  the  fee,  and  the  inheritable  quality  of 
his  blood  is  extinguished  and  blotted  out  forever. 
In  this  situation  the  law  of  feodal  escheat  was 
brought  into  England  at  the  Conquest ;  and  in  gen- 
eral superadded  to  the  ancient  law  of  forfeiture. 
In  consequence  of  which  corruption  and  extinction 
of  hereditary  blood,  the  land  of  all  felons  would 
immediately  revest  in  the  lord,  but  that  the  supe- 
rior law  of  forfeiture  intervenes,  and  interc 
in  its  passage:  In  case  of  treason,  forever;  in  case 
of  other  felony,  for  only  a  year  and  a  day  ;  after 
which  time  it  goes  to  the  lord  in  the  regular  course 
of  escheat,  as  it  would  have  done  to  the  heir  of 
Ion  in  case  the  feodal  tenures  had  never  been 
introduced.     2  Bla.  Com.   Lol. 

See   Year,   Day   and   Waste. 

The  estate  itself  which  so  reverted  was 
called  an  escheat.  Spelman.  The  term  in- 
clnded  also  other  property  which  fell  to  the 
lord:   as,  trees  which  fell  down.  etc.     Cowell. 

All  escheats  under  the  English  laws  are 
declared  to  be  strictly  feudal  and  to  import 


ESCHEAT 


1070 


ESCHEAT 


the  extinction  of  tenure.     Wr.  Ten.  115;    1 
W.  Bla.  123. 

It  was  not  until  after  the  statute  of  quia 
emptores  that  the  title  of  the  reversioner 
became  distinct  from  that  of  the  lord  who 
took  by  escheat.  Before  that  statute  "revert" 
and  "escheat"  were  used  indiscriminately  to 
express  the  fact  that  the  land  went  back  to 
the  lord  who  gave  it;  3  Holdsw.  Hist.  E.  L. 
115. 

That  if  the  ownership  of  a  property  become 
vacant,  the  right  must  necessarily  subside  into  the 
whole  community  in  which,  when  society  first 
assumed  the  elements  of  order  and  subordination,  it 
was  originally  vested,  is  a  principle  which  lies  at 
the  foundation  of  property ;  4  Kent  425 ;  and  this 
seems  to  be  the  universal  rule  of  civilized  society. 
Domat,  Droit  Pub.  lib.  1,  t.  6,  s.  3,  n.  1.  See  10 
Viner,  Abr.  139 ;  1  Bro.  Civ.  Law  250 ;  Lock  v. 
Lloyd's  Estate,  5  Binn.  (Pa.)  375 ;  McCaughal  V. 
Ryan,  27  Barb.  (N.  Y.)  376  ;  People  v.  Folsom,  5  Cal. 
373 ;  Armstrong  v.  Bittinger,  47  Md.  103  ;  Appeal  of 
Olmsted,  86  Pa.  284.  It  was  recognized  by  Justinian, 
and  by  the  civil  law  an  officer  was  appointed,  called 
the  escheator,  whose  duty  it  was  to  assert  the  right 
of  the  emperor  to  the  hcereditas  jacens  or  caduca 
when  the  owner  left  no  heirs  or  legatee  to  take  it. 
Code  10,  10,  1.  By  the  earlier  English  usages  the 
estate  of  the  vassal  escheated  to  his  lord  when  there 
were  no  representatives  in  the  seventh  degree,  and 
this  custom  was  later  extended  to  include  male  de- 
scendants ad  infinitum;    Lib.  Feud.  I.  1,  s.  4. 

In  case  of  escheat  by  failure  of  heirs,  by  cor- 
ruption of  blood,  or  by  conviction  of  certain  crimes, 
the  feud  fell  back  into  the  lord's  hands  by  a  ter- 
mination of  the  tenure.  1  Washb.  R.  P.  24.  At  the 
present  day,  in  England,  escheat  can  only  arise 
from  the  failure  of  heirs.  By  the  Felony  Act,  33  and 
34  Vict.  c.  23,  no  confession,  verdict,  inquest,  convic- 
tion, or  judgment  of  or  for  any  treason  or  felony, 
or  felo  de  se,  shall  cause  any  forfeiture  or  escheat ; 
3  Steph.  Com.  660.  An  action  of  ejectment,  com- 
menced by  writ  of  summons,  has  taken  the  place 
of  an  ancient  writ  of  escheat,  against  the  person  in 
possession  on  the  death  of  the  tenant  without  heirs. 

The  early  English  law  is  thus  stated:  "By  the 
law  of  England,  before  the  Declaration  of  Inde- 
pendence, the  lands  of  a  man  dying  intestate  and 
without  lawful  heirs  reverted  by  escheat  to  the 
king  as  the  sovereign  lord  ;  but  the  king's  title  was 
not  complete  without  an  actual  entry  upon  the 
land,  or  judicial  proceedings  to  ascertain  the  want 
of  heirs  and  devisees  ;  8  App.  Cas.  767,  772  ;  2  Bla. 
Com.  245.  The  usual  form  of  proceeding  for  this 
purpose  was  by  an  inquisition  or  inquest  of  office 
before  a  jury,  which  was  had  upon  a  commission 
out  of  the  court  of  chancery,  but  was  really  a  pro- 
ceeding at  common  law  ;  and,  if  it  resulted  in  favor 
of  the  king,  then,  by  virtue  of  ancient  statutes,  any 
one  claiming  title  in  the  lands  might,  by  leave  of 
that  court,  file  a  traverse  in  the  nature  of  a  plea  or 
defense  to  the  king's  claim,  and  not  in  the  nature  of 
an  original  suit;  Lord  Somers  in  14  How.  St.  Tr.  1, 
83  ;  6  Ves.  809  ;  4  Madd.  281 ;  L.  R.  2  Eq.  95  ;  Peo- 
ple v.  Cutting,  3  Johns.  (N.  Y.)  1 ;  Briggs  v.  Light- 
Boat  Upper  Cedar  Point,  11  Allen  (Mass.)  157,  172. 
The  inquest  of  office  was  a  proceeding  in  rem; 
when  there  was  proper  office  found  for  the  king, 
that  was  notice  to  all  persons  who  had  claims  to 
come  in  and  assert  them  ;  and,  until  so  traversed, 
it  was  conclusive  in  the  king's  favor  ;  Bayley,  J., 
in  12  East  96,  103;  16  Vin.  Abr.  86,  pi.  1."  Hamilton 
v.  Brown,  161  U.  S.  256,  16  Sup.  Ct.  585,  40  L.  Ed.  691. 

In  mediaeval  law  there  was  an  escheat  to  the  lord 
propter  defectum  sanguinis,  if  the  tenant  died  with- 
out heirs ;  and  propter  delictum  tenentis,  if  the 
tenant  committed  any  gross  breach  of  the  feudal 
bond.  The  right  to  escheat  depended  on  tenure 
alone. 

In  this  country,  however,  the  state  steps  in, 
in  the  place  of  the  feudal  lord,  by  virtue  of 


its  sovereignty,  as  the  original  and  ultimate 
proprietor  of  all  the  lands  within  its  juris- 
diction ;  4  Kent  424.  See  Matthews  v.  Ward, 
10  Gill  &  J.  (Md.)  450;  3  Dane,  Abr.  140. 
And  it  escheats  to  the  state  as  part  of  its 
common  ownership,  either  by  mere  operation 
of  law,  or  upon  an  inquest  of  office  according 
to  the  law  of  the  particular  state;  Hamil- 
ton v.  Brown,  161  U.  S.  25G,  16  Sup.  Ct.  585, 
40  E.  Ed.  691 ;  Smith  v.  Doe,  111  N.  Y.  Supp. 
525.  See  21  Harv.  L.  Rev.  452.  It  is,  per- 
haps, questionable  how  far  this  incident  ex- 
ists at  common  law  in  the  United  States  gen- 
erally. In  Maryland  the  lord  proprietor  was 
originally  the  owner  of  the  land,  as  the  crown 
was  in  England.  In  most  of  the  states  the 
right  to  an  escheat  is  secured  by  statute;  4 
Kent  424 ;    1  Washb.  R.  P.  24,  27 ;    2  id.  443. 

Such  a  statute  is  "not  unconstitutional, 
but  only  asserts  an  indisputable,  but  long- 
neglected  and  dormant  right  in  the  common- 
wealth;" Com.  v.  Blanton's  Ex'rs,  2  B.  Mon. 
(Ky.)  393;  Crane  v.  Reeder,  21  Mich1.  24,  4 
Am.  Rep.  430;  and  the  state,  in  a  just  and 
proper  exercise  of  its  police  power,  may  de- 
clare new  causes  of  escheat  of  lands  within 
its  territory;  Com.  v.  R.  Co.,  124  Ky.  497, 
99  S.  W.  596. 

In  Indiana  and  Missouri  it  was  held  that 
at  common  law,  if  a  bastard  died  intestate, 
his  property  escheated;  Doe  v.  Bates,  6 
Blackf.  (Ind.)  533  ;  Bent's  Adm'r  v.  St.  Vrain, 
30  Mo.  268;  but  this  is  now  otherwise  by 
statute  in  those  states  and  in  most  of  the 
others.  See  Bastard.  So  at  common  law 
there  was  an  escheat  if  the  purchaser  or 
heirs  of  the  decedent  were  aliens ;  Montgom- 
ery v.  Dorion,  7  N.  H.  475 ;  Co.  Litt.  2b;  but 
it  is  usually  otherwise  by  the  statutes  of  tbe 
several  states.     See  Alien. 

Hereditaments  which,  although  they  may 
be  held  in  fee-simple,  are  not  strictly  subjects 
of  tenure,  such  as  fairs,  markets,  commons 
in  gross,  rents  charge,  rents  seek,  and  the 
like,  do  not  escheat,  but  become  extinct  upon 
a  failure  of  heirs  of  the  tenant;  Challis,  R. 
P.  30. 

The  method  of  proceeding,  and  subject- 
matter.  To  determine  the  question  of  es- 
cheat a  proceeding  must  be  brought  in  the 
nature  of  an  inquest  of  office  or  office  found ; 
Jackson  v.  Adams,  7  Wend.  (N.  Y.)  367 ;  Peo- 
ple v.  Folsom,  5  Cal.  373;  Gresham  v.  Rick- 
enbacher,  28  Ga.  227 ;  State  v.  Tilghman,  14 
la.  474 ;  Louisville  School  Board  v.  King,  127 
Ky.  824,  107  S.  W.  247,  15  L.  R.  A.  (N.  S.) 
379;  In  re  Miner's  Estate,  143  Cal.  194,  76 
Pac.  968 ;  and  to  give  the  inquisition  the  ef- 
fect of  a  lien  the  same  must  be  filed,  as  the 
record  of  it  is  the  only  competent  evidence 
by  which  title  by  escheat  can  be  estab- 
lished ;  Crane  v.  Reeder,  21  Mich.  24,  4  Am. 
Rep.  430 ;  People  v.  Cutting,  3  Johns.  (N.  Y.) 
1 ;  and  such  action  must  also  be  taken  to  re- 
cover escheated  lands  held  in  adverse  pos- 
session ;   after  which  an  entry  must  be  made 


ESCHEAT 


1071 


ESCHI  AT 


to  give  the  state  a  right  of  possession;  Jack- 
son v.  Adams,  7  Wend.  (X.  Y.)  307 ;  Com.  v. 
Ilite,  6  Leigh  (Va.)  58S,  29  Am.  Dec.  226; 
Reid  v,  State,  74  Ind.  252;  and  the  facts 
which  support  the  escheat  must  be  stated ; 
Catham  v.  State,  2  Head  (Tenn.)  553;  Ap- 
peal of  Ramsey,  2  Watts  (Pa.)  228,  U7  Am. 
Dec.  301 ;  a  bill  of  information  must  be  filed 
and  a  scire  facias  issued  against  all  alleged 
to  have,  hold,  claim,  or  possess  such  estate; 
Wallahan  v.  Ingersoll,  117  111.  123,  7  N.  EL 
519;  and  the  names  of  all  persons  in  posses- 
sion of  the  premises,  and  all  who  were  known 
to  claim  an  interest  therein,  must  be  set 
forth  and  the  scire  facias  served  on  them 
personally ;  to  all  other  persons  constructive 
notice  is  sufficient;  id.  In  Texas,  no  pro- 
ceedings can  be  had,  except  under  and  ac- 
cording to  an  act  of  the  legislature  ;  Wieder- 
anders  v.  State,  64  Tex.  133;  Hamilton  v. 
Brown,  161  U.  S.  256,  16  Sup.  Ct.  585,  40  L. 
Ed.  691. 

In  many  of  the  states,  however,  the  doc- 
trine in  force  is,  that  land  cannot  remain 
without  an  owner;  it  must  vest  somewhere, 
and  on  the  death  of  an  intestate  without 
heirs  it  becomes  eo  instant e  the  property  of 
the  state;  Mooers  v.  White,  6  Johns.  Ch.  (N. 
Y.)  360;  Hall  v.  Gittings'  Lessee,  2  Harr.  & 
J.  (Md.)  112;  State  v.  Reeder,  5  Neb.  203; 
Montgomery  v.  Dorion,  7  N.  H.  475 ;  Rubeck 
v.  Gardner,  7  Watts  (ra.)  455;  Haigh  v. 
Haigh.  9  R.  I.  26 ;  Colgan  v.  McKeon,  24  N. 
J.  L.  566.  In  Wallahan  v.  Ingersoll,  117  111. 
123,  7  N.  E.  519,  it  was  held  that  on  the  death 
of  an  intestate  without  heirs,  the  title  to  his  es- 
tate devolves  immediately  upon  the  state,  but, 
in  order  to  make  that  title  available,  it  must 
be  established  in  the  manner  prescribed  by 
law  by  proceedings  in  the  proper  court,  in 
the  name  of  the  people,  for  the  purpose  of 
establishing  by  judicial  determination  the 
title  of  the  state.  After  a  long  lapse  of  time 
an  inquest  will  be  presumed ;  Doe  v.  Roe,  26 
Ga.  5S2.  A  right  of  action  for  the  recovery 
of  lands  is  vested  in  the  state  at  the  death 
of  the  owner  whose  property  escheats;  John- 
ston v.  Spicer,  107  N.  Y.  185,  13  N.  E.  753. 
Persons  claiming  as  heirs  may  come  in  under 
the  statute  and  obtain  leave  to  make  up  an 
issue  at  law  to  have  their  rights  determined; 
Ex  parte  Williams,  13  Rich.  (S.  C.)  77;  In 
re  Alton's  Estate,  220  Pa.  258,  69  Atl.  902; 
State  v.  Knott.  54  Fla.  138,  44  South.  744. 
The  legislature  is  under  no  constitutional  ob- 
ligation to  leave  the  title  to  such  properly  in 
abeyance,  and  a  judicial  proceeding  Cor  ascer- 
taining an  escheat  on  due  notice,  actual  to 
known,  and  constructive  to  all  possible  un- 
known, claimants,  is  due  process  of  law;  and 
a  statute,  providing  for  such  proceeding  does 
not  impair  the  obligation  of  any  contract, 
contained  in  the  grant  under  which  the  for- 
mer owner  held  whether  from  the  state  or  a 
private  person ;  Hamilton  v.  Brown,  161  U. 
S.  256,  275,  16  Sup.  Ct.  5S5,  40  L.  Ed.  691. 

Not  oidy  do  estates  in  possession  escheat, 


but  also  those  in  remainder,  if  vested;  Peo- 
ple v.  Conklin,  2  Hill  (N.  Y.)  07;  and  equi- 
table as  well  as  leu'al  estates;  Cri  \ .  De 
Yalle,  1  Wall.  (U.  S.)  5,  17  L  :   At- 

kins v.  Kron,  40  N.  0.  207;  3  Wasbb.  EL  P. 
446;  Mai  thews  v.  Ward,  10  (Jill  &  .1.  (Md.) 
443;  4  Kent  424;  (in  many  states  this  pro- 
vision is  statutory,  but  the  rule  in  England  Ls 
contrary;  1  Eden  177;)  also  those  held  in 
trust,  when  the  trust  expires;  In  re  Linton's 
Estate,  198  Pa.  438,  48  al 
ty   of   redemption;     Seitz    v.    [  mutt, 

117  App.  Div.  401,  102  N.  Y.  Supp.  732;  and 
lands  subject  to  dower,  and  the  right  . 
waived  by  the  appearance  of  the  attorney- 
general  of  the  state  in  an  action  to  ad 
ure  dower;  Smith  v.  Doe,  111  N.  Y.  Supp. 
525;  also  property  devised  by  B  void  will,  and 
the  state  is  the  proper  party  to  contest  the 
will;  State  v.  Lancaster,  119  Tenn.  038,  105 
S.  W.  858,  14  L.  R.  A.  (N.  S.)  991,  14  Ann. 
Caa  953;  and  duly  constituted  officials  may 
intervene ;  Gombault  v.  l'ublic  Adm'r,  4 
Bradf.  Sur.  (X.  Y.)  226;  contra,  llopf  v. 
State,  72  Tex.  281,  10  S.  W.  589. 

Proceedings  to  traverse  an  inquest.  An  in- 
quisition is  traversable,  the  traverser  being 
considered  as  a  defendant,  and  being  only  re- 
quired to  show  failure  of  title  in  the  state 
and  bare  possession  in  himself;  People  v. 
Cutting,  3  Johns.  (N.  Y.)  1;  contra,  in  Penn- 
sylvania, where  such  traverser  is  in  the  posi- 
tion of  plaintiff  in  ejectment  and  must  show 
a  title  superior  to  the  commonwealth;  pro- 
ceedings may  be  brought  by  any  one  claim- 
ing an  interest  and  including  an  administra- 
trix in  possession;  Com.  v.  Compton,  137  Pa 
138,  20  Atl.  417;  In  re  Alton's  Estate,  220 
Pa.  258,  69  Atl.  902;  it  is  a  proceed 
law  and  not  in  equity;  In  re  Fenstermacber 
v.  State,  19  Or.  504,  25  Pac.  142;  and  the 
court  of  common  pleas  has  jurisdiction  over 
it;  Com.  v.  Compton,  137  Pa.  138,  20  Atl. 
417;  the  traverser  being  allowed  to  begin 
and  conclude  to  the  jury;  Com.  v.  Desilver, 
2  Aslnn.  (Pa.)  163.  And  if  only  one  of  those 
notified  appear,  he  is  entitled  to  a  separate 
trial  of  his  traverse;  In  re  Maloiie's  Estate, 
21  S.  O.  435;  but  such  traverser  has  no  pre- 
cedence over  others  on  the  dockets  of  c 
Lance  v.  Dobson,  Riley  (S.  O.)  301. 

When    all    the    members    of    a    partnership 
have  died  intestate  and  without  heirs,  the 

properly   escheats   to   the  state,   but   the   heirs 

or  kindied  of  any  one  of  the  partners  may 
traverse  the  inquisition;  Com.  v.  Land  Co., 
57  Pa.   mi'. 

The    law    favors    the    presumption    of    the 
existence  of  belrs,  and  there  most  i  e 

thing  shown   by   (hose  Claiming  by   virtue  of 

escheat  to  rebut  that  presumption;  Appeal 
of  Ramsey,  2  Waits  (Pa.)  228,  27  Am.  Dec. 
301;    state  v.  Teulon's  Estate,   n  Tea 

//«/.  Brown  v.  .State,  36  Tex  283; 
Hammond's  Lessee  v.  inloes,  i  Md.  138;  Uni- 
versity of  North  Carolina  v.  Harrison,  '.(<»  N. 
C.  3b5,  overruling  as  to  this  point  University 


ESCHEAT 


1072 


ESCHEAT 


of  North  Carolina  v.  Johnston,  2  N.  C.  373. 
Proceedings  for  an  escheat  for  want  of  heirs 
or  devisees,  like  ordinary  provisions  for  the 
administration  of  his  estate,  presuppose  that 
he  is  dead;  if  he  is  still  alive,  the  court  is 
without  jurisdiction  and  its  proceedings  are 
null  and  void,  even  in  a  collateral  proceed- 
ing ;  Hamilton  v.  Brown,  161  U.  S.  256,  267, 
16  Sup.  Ct.  585,  40  L.  Ed.  691,  citing  Scott  v. 
McNeal,  154  U.  S.  34,  14  Sup.  Ct.  110S,  38  L. 
Ed,  S96;   Hall  v.  Claiborne,  27  Tex.  217. 

Equity  cannot  enjoin  proceedings  to  have 
an  escheat  declared,  where  every  question 
presented  could  be  decided  on  a  traverse 
should  such  escheat  be  found  ;  Appeal  of  Olm- 
sted, S6  Pa.  2S4 ;  and  an  amicus  curias  cannot 
move  to  quash  an  inquisition,  unless  he  has 
an  interest  himself  or  represents  some  one 
who  has ;  Dunlop  v.  Com.,  2  Call.  (Va.)  284. 

Disposition  of  escheated  lands  by  the  state. 
Where  the  state  takes  the  title  of  escheat- 
ed land,  it  is  entitled  to  the  rights  of  the 
last  owner;  therefore,  such  lands  cannot 
be  taken  up  by  location  as  vacant  land ; 
Hughes  v.  State,  41  Tex.  13 ;  or  be  regarded 
as  ungranted  land ;  but  it  must  be  sold  pur- 
suant to  the  statute;  Bodden  v.  Speigner,  2 
Brev.  (S.  C.)  321;  Straub  v.  Dimm,  27  Pa. 
30:  aiid  a  grant  of  such  lands  by  the  state 
before  office  found  is  valid ;  Rubeck  v.  Gard- 
ner, 7  Watts  (Pa.)  456;  Colgan  v.  McKeon, 
24  N.  J.  L.  566 ;  McCaughal  v.  Ryan,  27  Barb. 
(N.  Y.)  376;  as  is  also  a  grant  of  land  to 
escheat  in  futuro;  Nettles  v.  Cummings,  9 
Rich.  Eq.  (S.  C.)  440;  but  no  authority  is 
vested  in  officers  of  the  land  office  to  issue 
warrants  for  the  taking  up  of  escheated 
lands.  After  seven  years  from  the  inquisi- 
tion they  shall  be  sold  at  auction ;  Straub  v. 
Dimm,  27  Pa.  36 ;  and  the  power  to  order  the 
sale  of  the  property  is  vested  in  the  district 
court ;  Hughes  v.  State,  41  Tex.  10.  The  dis- 
position of  funds  secured  by  the  sale  of  such 
property  must  be  strictly  in  conformity  with 
the  state  statute;  and  the  legislature  of  a 
state  can  pass  no  act  diverting  the  funds  to 
another  purpose ;  State  v.  Reeder,  5  Neb.  203  ; 
-  where  the  constitution  gives  to  the  legislature 
the  power  to  provide  methods  to  enforce  the 
forfeiture,  there  can  be  no  proceedings  until 
the  legislature  acts;  Wiederanders  v.  State, 
64  Tex.  133. 

In  addition  to  the  escheat  for  want  of 
heirs  of  a  decedent,  there  are  in  some  states 
provisions  for  forfeiture  to  the  state  of  lands 
held  by  corporations  under  certain  circum- 
stances ;  in  Kentucky,  property  of  a  corpora- 
tion not  necessary  to  its  business  and  held 
for  more  than  five  years  is  forfeited  for  the 
benefit  of  schools ;  Com.  v.  Property  Co.,  128 
Ky.  790,  109  S.  W.  1183 ;  in  Pennsylvania  it 
is  provided  that  land  held  by  or  for  corpora- 
tions, either  directly  or  indirectly,  unless 
specially  authorized  by  statute,  shall  "es- 
cheat" to  the  state,  but  land  belonging  to  a 
mining  company,  all  of  whose  stock  was  held 
by  a  railroad  company,  was  held  not  to  be 


within  the  mischief  of  such  statute;  Com.  y. 
R.  Co.,  132  Pa.  591,  19  Atl.  291,  7  L.  R.  A. 
634.  Corporate  property  so  forfeited  is  tak- 
en however  subject  to  the  payment  of  debts 
of  the  corporation ;  War  Eagle  Consol.  Min. 
Co.  v.  Dickie,  14  Idaho  534,  94  Pac.  1034. 
Though  in  passing  or  construing  such  stat- 
utes as  these,  both  legislatures  and  courts 
have  employed  the  term  "escheat,"  it  would 
appear  to  be  a  departure  from  its  precise 
meaning  as  used  in  the  common  law. 

In  some  states  statutes  provided  that  cer- 
tain unclaimed  funds  held  by  corporations 
shall  go  to  the  state;  such  acts  are  constitu- 
tional ;  Deaderick  v.  Washington  County 
Court,  1  Coldw.  (Tenn.)  202. 

A  statute,  providing  that  all  moneys  re- 
maining in  the  registry  of  the  United  States 
courts  unclaimed  for  ten  years  or  longer  shall 
be  paid  over  to  the  government,  is  unconsti- 
tutional ;  the  United  States  cannot  be  regard- 
ed as  a  parens  patriae,  and  the  right  of  es- 
cheat belongs  only  to  the  states;  American 
Loan  &  Trust  Co.  v.  Grand  Rivers  Co.,  159 
Fed.  775. 

See,  generally,  American  Mortgage  Co.  of 
Scotland  v.  Tennille,  87  Ga.  28,  13  S.  E.  15S, 
12  L.  R.  A.  529;  Alien;  Bastard;  Dissolu- 
tion; Foreign  Corporation. 

ESCHEAT0R.  The  name  of  an  officer 
whose  duties  are  generally  to  ascertain  what 
escheats  have  taken  place,  and  to  prosecute 
the  claim  of  the  sovereign  for  the  purpose 
of  recovering  the  escbeated  property.  10 
Vfcn.  Abr.  158;  Co.  Litt.  13  6;  Toml.  L.  D. 
His  office  was  to  be  retained  but  one  year ; 
and  no  one  person  could  hold  the  office 
more  than  once  in  three  years. 

This  office  has  fallen  into  desuetude.  There  was 
formerly  an  escheator-general  in  Pennsylvania  but 
his  duties  have  been  transferred  to  the  auditor- 
general,  and  in  most  of  the  states  the  duties  of  tbis 
office  devolve  upon  the  attorney-general. 

ESCRIBAN0.  In  Spanish  Law.  The  pub- 
lic officer  who  is  lawfully  authorized  to  re- 
duce to  writing  and  verify  by  his  signature 
all  judicial  acts  and  proceedings  as  well  as 
all  acts  and  contracts  entered  into  between 
private  individuals. 

ESCROW.  A  deed  delivered  to  a  stran- 
ger, to  be  by  him  delivered  to  the  grantee 
upon  the  happening  of  certain  conditions, 
upon  which  last  delivery  the  transmission 
of  title  is  complete. 

Tbe  delivery  must  be  to  a  stranger;  Fair- 
banks v.  Metcalf,  8  Mass.  230.  See  9  Co. 
137  6;  Foley  v.  Cowgill,  5  Blackf.  (Ind.)  18, 
32  Am.  Dec.  49 ;  Gilbert  v.  Ins.  Co.,  23  Wend. 
(N.  Y.)  43,  35  Am.  Dec.  543;  Den  v.  Partee, 
19  N.  C.  530;  Simonton's  Estate,  4  Watts 
(Pa.)  180;  Jackson  v.  Sheldon,  22  Me.  569; 
for  when  delivered  directly  to  the  grantee; 
Campbell  v.  Jones,  52  Ark.  493,  12  S.  W. 
1016,  6  L.  R.  A.  783 ;  Stevenson  v.  Crapnell, 
114  111.  19,  28  N.  E.  379;  East  Texas  Fire 
Ins.  Co.  v.  Clarke,  1  Tex.  Civ.  App.  238,  21 
S.  W.  277;    Hubbard  v.  Greeley,  84  Me.  340, 


ESCROW 


1073 


ESCROW 


24  Atl.  799,  17  L.  R.  A.  511 ;   or  to  the  agent 
or  attorney  of  the  grantee;    Day  v.  LfU 
85  Me.  242,  27  Atl.  121:    it  cannot  be  tl 
as  an  escrow  ;   but  see  McLaughlin  v.  Wheel- 
er,   1   S.   D.   -107,   47    N.    W.  816;     Shelby   v. 
Tardy,  SI  Ala.  :J27,  4  South.  276. 

In   Cincinnati,  W.   &  Z.   R.   Co.   v.    Iliff,    13 
Ohio  St.  2::.",,  the  court,  after  giving  Kent's 
definition,    says:      "The   phrase    'a    str. 
used  in  this  definition,  or  the  phrase  'a  third 
person'  which  in  many  of  the  books  i- 
interchangeably  with  it,  it  seems  to  me  can 
mean  no  more  than  this,   a  stranger  to  the 
deed  as  not  being  a  party  to  it;    or  at 
this,  a  person  so  free  from  any  personal  or 
legal  identity  with  the  parties  to  the  instru- 
ment as  to  leave  him  free  to  discharge  his 
duties  as  a  depositary  to  both  parties,  with- 
out Involving  a  breach  of  duty  to  either."    It 
was  there  held  that  an  agent  of  one  party 
was    not    incapacitated    from    becoming    the 
depositary  of  an  escrow.    An  officer  of 
poration    may    receive    a    deed    in    escrow 
though  the  corporation  be  a  party   tl. 
Southern   Life   Ins.   &  Trust  Co.   v.    Cole,   4 
Fla.  369;   Bank  of  Bealdsburg  v.  Bailhache, 
65  Cal.  327,  4  Pac.  106.     The  second  delivery 
must  be  conditioned,   and    not    merely    post- 
poned;   O'Kelly  v.  O'Kelly,  8  Mete.   (Mass.) 
436;    2  B.  &  C.  82;    Shep.  Touch.  58.     Care- 
should  be  taken  to  express  the  intent  of  the 
first  delivery   clearly;     Clark   v.    Gift'ord,    10 
Wend.    (N.  Y.)    310;     Fairbanks   v.    Metcalf, 
8  Mass.  230;  Jackson  v.  Sheldon.  22  Me.  569; 
White  v.   Bailey,   14  Conn.  271.     An   escrow 
has  no  effect  as  a  deed  till  the  performance 
of  the  condition  ;  Hinman  v.  Booth,  21  Wend. 
(N.  Y.)   267;    Gaston  v.  City  of  Portland,  16 
Or.  255,  19  Pac.  127;    Hark" reader  v.  Clayton, 
56   Miss.   383,  31  Am.  Rep.   369;    Patrick  v. 
McCormick,    10   Neb.   1,   4   N.   W.   312;    and 
takes  effect  from  the  second  delivery  :    Green 
v.  Putnam.  1  Barb.   (X.  Y. )   500.     See  Foster 
v.    Mansfield.  3   Mete.    (Mass.)    412,   37   Am. 
Dec.  154;    Jackson  v.  Rowland,  6  Wend.    (N. 
Y.)    6C<;.   22  Am.  Dec  557;     Stiles  v.  Brown. 
16  Vt.  563;    Rhodes  v.  School  Dist.,  30  Me. 
110;    Blight  v.  Schenck,  10  Pa.  285,  51  Am. 
Dec.  478;   White  Star  lane  Steamboat  Co.  v. 
Moragne,   91   Ala.   610,   8   South.   867.     But 
where  the  parties  announce   their  intention 
that  the  escrow  shall,  after  the  performance 
of  the  condition,  take  effect  from   the   date 
of  the  deed,  such  intention  will  control;  Devi. 
Deeds  329;    Price  v.  R.  Co.,  34  111.  13. 

A  deed  delivered  in  escrow  cannot  be  re- 
voked; McDonald  v.  Huff,  77  Cal.  279,  19 
Pac.  499. 

The  term,  though  usually  applied  to  deeds. 
Is  sometimes  applied  to  any  written  instru- 
ment: Andrews  v.  Thayer,  "<>  Wis.  228;  Foy 
v.  Blackstone.  31  111.  538,  83  Am.  Dec.  246; 
Stewart  v.  Anderson,  59  Ind.  .".7.".:  Ostmann 
v.  Ilanlc.  49  Mich.  56,  12  N.  W.  '.1(17:  Kemp 
v.  Walker.  10  Ohio,  118;  12  Q.  B.  317;  Ben- 
ton v.  Martin.  52  N.  Y.  570;  Sweet  v.  Stevens. 
7  R.  I.  375 ;  Clark  v.  Campbell,  23  Utah,  569, 
Bouv.— 68 


65  Pae.  496,  54  L.  R.  A.  508.  90  Am.  St. 

tig.     They  are  a  aally  cases  of  Incomj 

instruments,  not  strictly  escrow.    A 

tialile  insti 

their  free  and  u: 

protect  the  right 

fide  without  notice.     It  tb  es  the 

consequences  which  follow  from  tb 

tion  of  promissory  notes  and  bills  of  • 

through    the    fraud.  a    or    mist 

of  the   |  to  whom   they 

by  the  maker,  on  those  who  enabli 

hold  ti  •  iwnera  of  the  p 

jure  dteponendi,  and  not  on  innocent  hoi 

who  have  tak(  o  it  for  value  with  at  D 

Fearing  v.  Clark,    16  Gray    (Mass.)    74,   77 

Am.  Dec.  3!  •  ed  In  Provident  Life  iv 

Trust  Co.  v.  Mercer  County,  H    I 

Sup.  Ct  788,    12  L.  Ed.  1156.     To  the 

Burson  v.  Huntington,  21  Mich.  415,  -1 
Am.    Rep.    497;     Vallett    v.    Parker,    6    V. 
(N.  Y.)  615;    Bong  Island  Loan  &  Trust  Co. 
v.  By.  Co..  65  Fed. 

It  is  held  a  delivery  in  escrow  for  one  per- 
son to  sign  a  note  as  surety  upon  the  e\ 
condition   that  another  person's  signature  is 
also  to  be  obtained,  and  to  deliver  the  note 
to  the  maker  for  thai  purpose;   Perry  v.  Pat- 
.  5  Humph.    (Tenn.)    133,  42  Am.  Dec. 
424.     But  it  Is  held  that  signing  a  not' 
placing  it  in  the  hands  of  one  of  the  sig 
with  direction  to  deliver  it  only  on  condition 
that  it  should  be  signed  by  other  designated 
persons,  is  not  a  delivery  in  escrow,  but  of 
an  incomplete  instrument,  and  there  can  be 
no  recovery  against  those  executing  it  when 
it  has  not  been  executed  by  all;    Keener  v. 
Crago,  si  Pa.  166. 

It  has  been  held  that  notes  cannot  be  de- 
livered  in  escrow  to  the  agent  of  the  payee  to 
hold  until  the  maker  could  Investigate  the 
indebtedness  for  which  they  were  given; 
.Murray  v.  W.  W.  Kimball  Co.,  10  Ind.  App. 
184,  .".7  N.  K.  7:;!:  id.,  10  Ind.  App.  111.  37  N. 
B.  736;  contra,  Stewart  v.  Al 
375;  or  so  as  to  make  the  signature  of  an- 
other person  essential  to  its  validity:  Hurt 
v.  Ford,  l  !2  Mo.  283,  n  S.  W.  228,  41  L.  R 
But  it  is  held  that  if  the  deposit  Is 
of  sueh  charac!  negative  its  being 

delivered  to  the  grantee,  it  may  nevertl 
operate   as    a    delivery    in    escrow,    although 
placed  in  the  hands  of  th<  's  solidtdr, 

if  he  was  Intended  to  hold  it  as  an  Incom- 
plete instrument  :  I..  B  -J"  Eq.  262;  Ashford 
v.  Prewitt,  102  Ala.  264,  1 1  South.  663,  48 
Am.  St.  Rep.  87. 

As  a  genera]  rule,  when  an  instrument  Ifi 
placed  in  the  hand-  of  a  third  person  in  es- 
crow, it  takes  .  a  the  second  deliv- 
ery: bid  such  a  rule  does  not  apply  where 
either  justice  or  necessity  requires  a  • 
to  a  fiction  In  order  to  avoid  injury  (a^  in 
:  Intervening  rights  between  the  first 
and  second  delivery,  it  shall  take  effect  from 
its  tirst  delivery);  Shirley*fl  Lessee  v.  Ayres, 
1  1  (duo  807,  45  Am.  1  >e  .  546;    Bank  v.  Lum- 


ESCROW 


1074 


ESCROW 


ber  Co.,  32  W.  Va.  357,  9  S.  E.  243.  In  such 
a  case,  much  depends  on  the  intent  of  the 
parties  to  be  collected  from  the  nature  of 
the  transaction;  Calhoun  County  v.  Emigrant 
Co.,  93  U.  S.  124,  23  L.  Ed.  826.  Tbis  fiction 
is  adopted  to  prevent  a  manifest  hardship; 
Craddock  v.  Barnes,  142  N.  C.  89,  54  S.  E. 
1003;  and  there  is  no  reason  why  it  sbould 
not  be  invoked  to  effectuate  the  lawful  intent 
of  the  parties;   id. 

In  Gish  v.  Brown,  171  Pa.  479,  33  Atl.  60, 
the  fiction  of  relation  back  was  adopted 
where  the  grantor  delivered  the  deed  to  a 
third  person  with  absolute  instructions  to 
hold  it  until  his  death  and  then  deliver  it  to 
the  grantee.  So  where  one  of  the  parties  has 
come  under  a  disability  such  as  mental  in- 
capacity; Wheelwright  v.  Wheelwright,  2 
Mass.  447,  3  Am.  Dec.  6G;  and  where  a 
woman,  after  delivering  a  bond  on  condition, 
marries  before  the  happening  of  the  condi- 
tion ;  1  Ves.  Jr.  275 ;  and  where  the  condi- 
tion was  capable  of  performance  within  the 
lifetime  of  the  grantor,  though  the  instru- 
ment, delivered  to  a  third  person,  provided 
that  it  should  not  take  effect  until  the  death 
of  the  grantor;  Nolan  v.  Otney,  75  Kan.  311, 
89  Pac,  690,  9  L.  R.  A.  (N.  S.)  317,  where 
the  provision  was  construed  to  mean  that 
the  title  was  to  vest  at  once,  and  only  the 
enjoyment  to  be  postponed  until  the  death  of 
the  grantor. 

It  is  the  performance  of  the  condition  and 
not  the  second  delivery  that  gives  it  vitality 
as  a  deed ;  State  Bank  at  Trenton  v.  Evans, 
15  N.  J.  L.  155,  28  Am.  Dec.  400;  Clark  v. 
Campbell,  23  Utah  569,  65  Pac.  496,  54  L.  R. 
A.  508,  90  Am.  St.  Rep.  716  ;  Calhoun  County 
v.  Emigrant  Co.,  93  U.  S.  124,  23  L.  Ed.  826. 
No  title  passes  until  the  condition  is  per- 
formed ;  Calhoun  County  v.  Emigrant  Co., 
93  U.  S.  124,  23  L.  Ed.  826;  but  the  instant 
the  conditions  are  performed  the  instrument 
takes  effect,  though  the  depositary  has  not 
formally  delivered  it;  Taylor  v.  Thomas,  13 
Kan.  217;  Missouri  Pac.  R.  Co.  v.  Atkison,  17 
Mo.  App.  484.  The  depositary  then  holds 
possession  for  the  grantee;  Cannon  v.  Hand- 
ley,  72  Cal.  133,  13  Pac.  315. 

Where  dividends  are  declared  on  stock  de- 
posited in  escrow,  they  are  the  property  of 
the  seller;  Clark  v.  Campbell,  23  Utah  569, 
65  Pac.  496,  54  L.  R.  A.  508,  90  Am.  St.  Rep. 
716. 

One  acting  in  escrow  acts  at  his  peril  with 
either  party  without  the  consent  of  the  other; 
Citizens'  Nat.  Bank  of  Roswell,  N.  M.,  v. 
Davisson,  229  U.  S.  212,  33  Sup.  Ct  625,  57 
L.  Ed.  . 

See,  generally,  Shirley's  Lessee  v.  Ayres, 
14  Ohio  309,  45  Am.  Dec.  546;  Ruggles  v. 
Lawson,  13  Johns.  (N.  Y.)  285,  7  Am.  Dec. 
375;  Carr  v.  Hoxie,  5  Mas.  60,  Fed.  Cas.  No. 
2,438;  Evans  v.  Gibbs,  6  Humph.  (Tenn.) 
405;  Foster  v.  Mansfield,  3  Mete.  (Mass.) 
412,  37  Am.  Dec.  154;  Crane  v.  Hutchinson,  3 
111.  App.  30»    Clements  v.  Hood,  57  Ala.  459; 


Miller  v.  Sears,  91  Cal.  282,  27  Pac.  589,  25 
Am.  St.  Rep.  176;  Minah  Consol.  Min.  Co. 
v.  Briscoe,  47  Fed.  276 ;    10  I..  R.  A.  469,  n. 

As  to  the  validity  of  a  deed  to  take  effect 
at  the  death  of  the  grantor,  see  Delivery. 

ESCUAGE.  In  Old  English  Law.  Service 
of  the  shield.  Tenants  who  hold  their  land 
by  escuage  hold  by  knight's  service.  1 
Thomas,  Co.  Litt.  272;  Littleton  §  95,  86  6. 
Abolished  by  Stat.  12  Car.  II.  c.  24!    Scutage. 

ESKETORES.  Robbers  or  destroyers  of 
other  men's  lands  and  fortunes.     Cowell. 

ESKIPPAMENTUM.  Tackle  or  furniture; 
outfit.  Certain  towns  in  England  were 
bound  to  furnish  certain  ships  at  their  own 
expense  and  with  double  skippage  or  tackle. 
The  modern  word  outfit  would  seem  to  ren- 
der the  passage  quite  as  satisfactorily ; 
though  the  conjecture  of  Cowell  has  the  ad- 
vantage of  antiquity. 

ESKIPPER,  ESKIPPARE.  To  ship.  Kelh. 
Norm.  L.  D. ;   Rast  409. 

ESKIPPESON.  Shippage,  or  passage  by 
sea.     Spelled,  also,  skippeson.     Cowell. 

ESNECY.  Eldership.  In  the  English  law, 
this  word  signifies  the  right  which  the  eldest 
coparcener  of  lands  has  to  choose  first  one 
of  the  parts  of  the  estate  after  it  has  been 
divided. 

ESP  ERA.  The  period  fixed  by  a  compe- 
tent judge  within  which  a  party  is  to  do  cer- 
tain acts,  as,  e.  g.,  to  effect  certain  payments, 
present  documents,  etc. ;  and  more  especially 
the  privilege  granted  by  law  to  debtors,  al- 
lowing them  certain  time  for  the  payment  of 
their  indebtedness. 

ESPLEES.  The  products  which  the  land 
or  ground  yields;  as,  the  hay  of  the  meadows, 
the  herbage  of  the  pasture,  corn  or  other 
produce  of  the  arable,  rents,  and  services. 
See  Witherow  v.  Keller,  11  S.  &  R.  (Pa.) 
275;  Dane,  Abr.  Index;  Fosgate  v.  Mfg.  & 
Hydraulic  Co.,  9  Barb.  (N.  Y.)  293. 

ESPOUSALS.  A  mutual  promise  between 
a  man  and  a  woman  to  marry  each  other  at 
some  other  time :  it  differs  from  a  marriage, 
because  then  the  contract  is  completed. 
Wood,  Inst.  57.     See  Betrothment. 

ESQUIRE.  A  title  applied  by  courtesy  to 
officers  of  almost  every  description,  to  mem- 
bers of  the  bar,  and  others.  No  one  is  en- 
titled to  it  by  law ;  and  therefore  it  confers 
no  distinction  in  law. 

In  England,  it  is  a  title  next  above  that  of  a  gen- 
tleman and  below  that  of  a  knight.  Camden  reck- 
ons up  four  kinds  of  esquires  particularly  regarded 
by  the  heralds:  the  eldest  sons  of  knights,  and  their 
eldest  sons  in  perpetual  succession  ;  the  eldest  sons 
of  the  younger  sons  of  peers,  and  their  eldest  sons 
in  like  perpetual  succession ;  esquires  created  by 
the  king's  letters  patent,  or  other  investiture,  and 
their  eldest  sons  ;  esquires  by  virtue  of  their  office, 
as  justices  of  the  peace,  and  others  who  bear  any 
office  of  trust  under  the  crown.  2  Steph.  Com.  673. 
A  miller  or  a  farmer  may  be  an  esquire ;  I.  R.  2 
Eq.  235. 


ESS  ART 


1075 


ESTADIA 


ESSART.  In  Forest  Law.  The  destruction 
of  the  forest  and  the  reduction  of  it  to  a  state 
of  cultivation.  _  1  Iloldsw.  Hist.  E.  L.  342. 

ESSE.    See  In  Esse. 

ESSENDI  QUIETAM  DE  T0L0NE0 
(Lat.  of  being  quit  of  toll).  A  writ  which 
lay  anciently  for  the  citizens  or  burgesses  of 
a  town  which  was  entitled  to  exemption 
from  toll,  in  case  toll  was  demanded  of  them. 
Fitzh.  N.  B.  220,  I. 

ESSOIN,    ESSOIGN.     In   Old    English    Law. 

An  excuse  for  not  appearing  in  court  at  the 
return  of  the  process.  Presentation  of  such 
excuse.  Spelman,  Gloss.;  1  Sell.  1'r.  A  . 
Dig.  Exoine,  B  1.  Essoin  is  not  now  allowed 
at  all  in  personal  actions.  2  Term  10;  3  Bla. 
Com.  278,  il  # 

ESSOIN  DAY.  Formerly,  the  first  day  in 
the  term  was  essoin  day;  now  practically 
abolished.    Dowl.  448;   3  Bla.  Com.  278,  n. 

ESSOIN  ROLL.  The  roll  containing  the 
essoins  and  the  day  of  adjournment.  Rose. 
R.  Act.  1G2  et  seq. 

ESTABLISH.  This  word  occurs  frequent- 
ly in  the  constitution  of  the  United  States, 
and  it  is  there  used  in  different  meanings. 
1.  To  settle  firmly,  to  fix  unalterably :  as, 
to  establish  justice,  which  is  the  avowed  ob- 
ject of  the  constitution.  2.  To  make  or 
form :  as,  to  establish  an  uniform  rule  of 
naturalization,  and  uniform  laws  on  the  sub- 
ject of  bankruptcies, — which  evidently  does 
not  mean  that  these  laws  shall  be  unalter- 
ably established  as  justice.  3.  To  found,  to 
create,  to  regulate :  as,  Congress  shall  have 
power  to  establish  postroads  and  post-offices. 
4.  To  found,  recognize,  confirm,  or  admit : 
as,  Congress  shall  make  no  law  respecting  an 
establishment  of  religion.  5.  To  create,  to 
ratify,  or  confirm :  as,  We,  the  people,  etc., 
do  ordain  and  establish  this  constitution.  1 
Story,  Const.  §  454. 

For  decisions  upon  the  scope  and  meaning  of  the 
word,  see  Ketchum  v.  City  of  Buffalo,  14  N.  Y.  356  ; 
People  v.  Lowber,  28  Barb.  (N.  Y.)  65;  Wartman  v. 
City  of  Philadelphia,  33  Pa.  202 ;  Com.  v.  Simonds, 
11  Gray  (Mass.)  306;  Smith  v.  Forrest,  49  N.  H.  230; 
Succession  of  Weigel,  18  La.  Ann.  49. 

The  Established  Church  in  England  is  the 
Church  of  England ;  so  of  Wales. »  The  Irish 
Church  has  been  disestablished. 

ESTABLISHMENT,        ETABLISSEM  ENT. 

An  ordinance  or  statute.  Especially  used  of 
those  ordinances  or  statutes  passed  in  the 
reign  of  Edw.  I.  Co.  2d  Inst.  15G ;  Britt  c 
21.  That  which  is  instituted  or  established 
for  public  or  private  use,  as  the  trading  es- 
tablishments of  a  government. 

Etablissemcnt  is  also  used  to  denote  the 
settlement  of  dower  by  the  husband  upon 
his  wife.    Britt.  c.  102. 

ESTADAL.  In  Spanish  Law.  A  measure 
of  land  of  sixteen  square  varas,  or  yards.  2 
White,  Ree.  139. 


ESTADIA.     In  Spanish   Law.    Called,  also, 
Solyrt   ta*  ia.     The  time  for  which  the  party 
who  has  chartered  a  vessel,  or  is  bou 
receive  the  cargo,  has  to  pay  demarra 
account  of  his  delay  in  the  execution  of  the 
contract. 

ESTATE  (Lat  status,  the  condition  or  cir- 
cumstances in  which  the  own  with 
reference    to    his    property).      The    del 
quantity,    nature,    and    extent    of    Inti 

which  a  person  has  in  real  property. 

It  Signifies   the  quantity  of  interest   which 
a  person  has,  from  absolute  ownership  down 
to   naked   possession;    Jackson   v.   Pari 
Cow.  (X.  Y.)  81. 

This  word  has  several  meanings.  1.  In  its  most 
extensive  sense,  it  is  applied  to  signify  every  thing 
of  which  riches  or  fortune  may  consist,  and  includes 
personal  and  real  property  :  hence  we  say,  personal 
estate,  real  estate  ;  8  Yes.  504  ;  Jackson  v.  Robins, 
16  Johns.  (N.  Y.)  587;  Deering  v.  Tucker,  5:,  Me.' 
284;  Bates  v.  Sparrell,  10  Mass.  323;  Archer  v. 
Deneale,  1  Pet.  (U.  S.)  535,  7  L.  Ed.  272;  Donovan's 
Lessee  v.  Donovan,  4  Harr.  (Del.)  177  ;  Andrews 
v.  Brumfleld,  32  Miss.  107  ;  Blewer  v.  Brightman,  4 
McCord  (S.  C.)  60  ;  Den  v.  Snitcher,  14  N.  J.  L.  53. 
2.  In  its  more  limited  sense,  the  word  estate  is  ap- 
plied to  lands.  It  is  so  applied  in  two  senses.  The 
first  describes  or  points  out  the  land  itself,  without 
ascertaining  the  extent  or  nature  of  the  interest 
therein:  as,  "my  estate  at  A."  Godfrey  v.  Hum- 
phrey, 18  Pick.  (Mass.)  537,  29  Am.  Dec.  621.  The 
second,  which  is  the  proper  and  technical  meaning 
of  estate,  is  the  degree,  quantity,  nature,  and  extent 
of  interest  which  one  has  in  real  property:  as,  an 
estate  in  fee,  whether  the  same  be  a  free-simple 
or  fee-tail,  or,  an  estate  for  life  or  for  years,  etc. 
Coke  says,  Estate  signifies  such  inheritance,  free- 
hold, term  of  years,  tenancy  by  statute  merchant, 
staple,  eligit,  or  the  like,  as  any  man  hath  in  lands 
or  tenements,  etc.    Co.  Litt.  S  See  Jones, 

Land  Off.  Titles  In  Penna.  165.  Estate  does  not 
include  rights  in  action  ;  Pippin  v.  Ellison,  34  N.  C. 
61,  55  Am.  Dec.  403  ;  Mclntyre  v.  Ingraham,  35 
25;  In  re  Sibbald's  Estate,  IS  Pa.  -W.  But  as  the 
word  is  commonly  used  in  the  settlement  of  estates, 
it  does  include  the  debts  as  well  as  the  assets  of 
a  bankrupt  or  decedent,  all  his  obligations  and  re- 
sources being  regarded  as  one  entirety.  See  Davis's 
Heirs  v.  Elkins,  9  La.  135.  Also  the  status  or  condi- 
tion in  life  of  a  person  ;  State  v.  Bishop,  15  Me. 
122.     See  Estates  of  the  Realm. 

ESTATE  AT  WILL.  An  estate  in  lands 
which  the  tenant  has,  by  entry  made  there- 
on under  a  demise,  to  hold  during  the  joint 
wills  of  the  parties  to  the  same.  Co.  Lift.  55 
a;  Tud.  L.  Cas.  R.  P.  10;  2  Bla.  Com.  145  : 
4  Kent  110.  Estates  properly  at  will  are  of 
very  infrequent  occurrence,  being  generally 
turned  into  estates  for  years  or  from  year 
to  year  by  decisions  of  the  courts  or  by  st:it- 
ute;  4  Kent  115;  Tud.  L,  Cas.  R.  P.  14; 
Lesley  v.  Randolph,  4  Rawle  (Pa.)  123;  1 
Term  159. 

They  may  be  created  by  express  words  or 
may  arise  by  implication  of  law.  Where 
created  by  express  contract,  the  writing  nec- 
essarily so  indicates,  and  reserves  the  right 
of  termination  to  either  party,  as  where  the 
lease  provides  that  the  tenant  shall  occupy 
the  premises  so  long  as  agreeable  to  both 
parties;  4  Taunt.  128;  Say  v.  Stoddard.  27 
Ohio  St.  47S.  They  arise  by  implication  of 
law  where  no  definite  time  is  stated  in  the 


ESTATE  AT  WILL 


1076 


ESTATE  FOR  LIFE 


contract,  or  where  the  tenant  enters  into 
possession  under  an  agreement  to  execute  a 
contract  for  a  specific  term  and  he  subse- 
quently refuses  to  do  so,  or  where  one  en- 
ters under  a  void  lease,  or  where  he  holds 
over  pending  negotiations  for  a  new  lease; 
Thompson  v.  Baxter,  107  Minn.  122,.  119  N. 
W.  797,  21  L.  R.  A.  (N.  S.)  575.  The  chief 
characteristics  of  this  form  of  tenancy  are 
(1)  uncertainty  respecting  the  term  and  (2) 
the  right  of  either  party  to  terminate  it  by 
proper  notice.     See  Tenancy  at  Suffeeance. 

ESTATE  BY  ELEGIT.     See  Elegit. 

ESTATE  BY  STATUTE  MERCHANT.  See 
Statute  Merchant. 

ESTATE     BY    STATUTE    STAPLE.      See 

Statute  Staple. 

.  ESTATE  BY  THE  CURTESY.  That  es- 
tate to  which  a  husband  is  entitled  upon  the 
death  of  his  wife  in  the  lands  or  tenements 
of  which  she  was  seised  in  possession,  in 
fee-simple,  or  in  fee-tail  during  their  cover- 
ture; provided  they  have  had  lawful  issue 
born  alive  and  possibly  capable  of  inheriting 
her  estate.  Co.  Litt.  3.0  a;  2  Bla.  Com.  120; 
4  Kent  29;  Leach  v.  Leach,  21  Hun  (N.  Y.) 
381;  Crumley  v.  Deake,  8  Baxt.  (Teun.)  301; 
Carter  v.  Dale,  3  Lea.  (Tenn.)  710,  31  Am. 
Rep.  000 ;  McKee  v.  Cattle,  0  Mo.  App.  410 ; 
Tremmel  v.  Kleiboldt,  0  Mo.  App.  549 ;  [1892] 
2  Ch.  330.    See  Curtesy. 

ESTATE  DUTY.  A  duty  imposed  in  Eng- 
land (act  of  1894)  superseding  probate  duty, 
taxing  not  the  interest  to  which  some  person 
succeeds  on  a  death,  but  the  interest  which 
ceased  by  reason  of  the  death.  Hansen, 
Death  Duties  03.  It  is  leviable  on  property 
which  was  left  untouched  by  probate  duty, 
such  as  real  estate,  yet  it  is  in  substance  of 
the  same  nature  as  the  old  probate  duty ;  id. 
See  Tax 

ESTATE  FOR  LIFE.  A  freehold  estate, 
not  of  inheritance,  but  which  is  held  by  the 
tenant  for  his  own  life  or  the  life  or  lives 
of  one  or  more  other  persons,  or  for  an  in- 
definite period,  which  may  endure  for  the 
life  or  lives  of  persons  in  being,  and  not  be- 
yond the  period  of  a  life.  1  Washb.  R.  P. 
88 ;  Co.  Litt.  42  a;  Bract  lib.  4,  c.  28,  §  207 ; 
Hurd  v.  Cushing,  7  Pick.  (Mass.)  109;  Chal. 
R.  P.  89.  When  the  measure  of  duration  is 
the  tenant's  own  life,  it  is  called  simply  an 
estate  "for  life ;"  when  the  measure  of  dura- 
tion is  the  life  of  another  person,  it  is  called 
an  estate  "per  (or  pur)  autre  vie;"  2  Bla. 
Com.  120;    Co.  Litt.  41  6;     4  Kent  23,  24. 

Estates  for  life  may  be  created  by  act  of 
law  or  by  act  of  the  parties :  in  the  former 
case  they  are  called  legal,  in  the  latter  con- 
ventional. The  legal  life  estates  are  estates- 
tail  after  possibility  of  issue  extinct,  estates 
by  dower,  estates  by  curtesy,  jointures; 
Mitch.  R.  P.  118,  133 ;  Eldridge  v.  Preble,  34 
Me.  151;   Dejarnatte  v.  Allen,  5  Gratt.  (Va.) 


499;  Fay  v.  Fay,  1  Cush.  (Mass.)  95;  Irwin 
v.  Covode,  24  Pa.  102;  3  E.  L.  &  Eq.  R.  345; 
Miller  v.  Williamson,  5  Md.  219;  Gourley  v. 
Woodbury,  51  Vt.  37;  Brooks' v.  Brooks,  12 
S.  C.  422 ;  Slemmer  v.  Crampton,  50  la.  302 ; 
Rountree  v.  Talbot;  89  111.  240;  Noe  v.  Mil- 
ler's Ex'rs,  31  N.  J.  Eq.  234.  A  life  estate 
may  be  created  by  implication ;  Nicholson  v. 
Drennan,  35  S.  C.  333,  14  S.  E.  719. 

A  right  given  by  a  will  to  occupy,  at  a 
specified  rent,  certain  premises  as  long  as  the 
devisee  "may  desire  to  occupy  the  same  as 
a  drug  store,"  was  held  to  amount  to  an  es- 
tate for  life;  and  to  the  same  effect  Warner 
v.  Tanner,  38  Ohio  St,  118 ;  Jones  v.  Mason, 
5  Rand.  (Va.)  584,  10  Am.  Dec.  701;  as  was 
a  grant  "so  long  as  the  waters  of  the  Dela- 
ware shall  run" ;  Foster  v.  Joice,  3  Wash. 
C.  C.  498,  Fed.  Cas.  No.  4,974;  and  a  lease 
at  a  specified  monthly  rent  of  certain  prem- 
ises whilst  the  defendant  continued  to  wish 
to  live  in  a  certain  city ;  Thompson  v.  Bax- 
ter, 107  Minn.  122,  119  N.  W.  797,  21  L.  R. 
A.  (N.  S.)  575.  A  devise  of  the  use  and  im- 
provement of  the  testator's  real  estate,  so 
long  as  the  devisee  should  choose  personally 
to  occupy  and  improve  any  portion  of  the 
estate,  was  held  to  create  a  life  estate, 
though  terminable  by  the  tenant  ceasing  to 
occupy ;    Wilmarth  v.  Bridges,  113  Mass.  407. 

The  chief  incidents  of  life  estates  are  a 
right  to  take  reasonable  estovers,  and  free- 
dom from  injury  by  a  sudden  termination 
or  disturbance  of  the  estate;  Smith  v.  Jew- 
ett,  40  N.  H.  532.  A  tenant  for  life  may  not 
operate  for  oil  or  gas,  or  make  an  oil  or  gas 
lease,  unless  operations  for  oil  or  gas  were 
commenced  before  the  life  estate  accrued ; 
Marshall  v.  Mellon,  179  Pa.  371,  30  Atl.  201, 
35  L.  R.  A.  810,  57  Am.  St.  Rep.  001;  nor 
can  the  owner  of  such  an  estate  maintain 
an  action  of  partition  against  the  owners  of 
the  estate  in  remainder;  Love  v.  Blauw,  01 
Kan.  490,  59  Pac,  1059,  48  L.  R.  A.  257,  78 
Am.  St.  Rep.  334.  Under-tenants  have  the 
same  privileges  as  the  original  tenant ;  and 
acts  of  the  original  tenant  which  would  de- 
stroy his  own  claim  to  these  privileges  will 
not  affect  them ;   see  Neel  v.  Neel,  19  Pa.  323. 

Their  right,  however,  does  not  of  course, 
as  against  the  superior  lord,  extend  beyond 
the  life  of. the  original  tenant;  2  Bla.  Com. 
122;    1  Rolle,  Abr.  727;    Co.  Litt.  41  o. 

ESTATE  FOR  YEARS.  An  interest  in 
lands  by  virtue  of  a  contract  for  the  posses- 
sion of  them  for  a  definite  and  limited  period 
of  time.  2  Bla.  Com.  140 ;  2  Crabb,  R.  P.  I 
1207;  Baa  Abr.  Leases;  Wms.  R.  P.  195. 
Such  estates  are  frequently  called  terms. 
See  Teem.  The  length  of  time  for  which 
the  estate  is  to  endure  is  of  no  importance 
in  ascertaining  its  character,  unless  other- 
wise declared  by  statute ;  Chapman  v.  Gray, 
15  Mass.  439 ;  Brewster  v.  Hill,  1  N.  H.  350 ; 
Diller  v.  Roberts,  13  S.  &  R.  (Pa.)  00,  15  Am. 
Dec.  578;  Brown's  Adm'rs  v.  Bragg,  22  Ind. 
122;    4  Kent  93. 


ESTATE  FROM  YEAR  TO  YEAR      1077  ESTATE  IN  EXPECTANCY 


ESTATE    FROM    YEAR    TO    YEAR.     It   is 

an  example  of  an  estate  for  years.  It  is  of 
later  origin  and  is  not  found  in  Littleton 
(see  §  3S1).  It  exists  in  cases  where  the 
parties  stipulate  for  it,  and  also  where  the 
parties  by  their  conduct  have  placed  them- 
selves in  the  relation  of  landlord  and  ten- 
ant without  adopting  any  other  term.  If  a 
tenanl  has  been  allowed  to  hold  over  after 
the  expiration  of  his  term  in  such  a  way  as 
to  preclude  the  possibility  of  his  becoming 
a  tenant  on  sufferance,  it  is  a  tenancy  from 
year  to  year.     Jenks,  Mod.  Land  Law  88. 

A  tenancy  from  year  to  year  exists  where 
both  landlord  and  tenant  are  entitled  to  no- 
tice before  the  tenancy  can  be  terminated  by 
either.  At  common  law  such  notice  must  be 
given  at  least  one-half  year  before  the  ex- 
piration of  the  current  year.  The  tenant 
must  occupy  for  a  certain  number  of  com- 
plete years;  Odger,  C.  L.  809.  A  tenancy 
from  year  to  year  in  England  lasts  as  long 
only  as  both  parties  please ;  it  is  terminable 
by  either  at  the  end  of  any  year  on  a  half 
year's  notice;    7  Q.  B.  958. 

It  was  originally  a  development  of  a  ten- 
ancy at  will,  by  which  the  tenancy  was 
terminable  only  at  the  time  of  the  year  at 
which  it  began,  and  on  notice. 

ESTATE  IN  COMMON.  An  estate  held  in 
joint  possession  by  two  or  more  persons  at 
the  same  time  by  several  and  distinct  titles. 

1  Washb.  R.  P.  415;  2  Bla.  Com.  191;  1 
Pres.  Est.  139.  This  estate  has  the  single 
unity  of  possession,  and  may  he  of  real  or 
personal  property  ;  Harvey  v.  Cherry,  76  N. 
Y.  436 ;  Jones  v.  Cohen,  82  N.  C.  75 ;  With- 
row  v.  Biggerstaff,  82  N.  C.  82;  Stookey  v. 
Carter,  92  111.  129;  Kean  v.  Connelly,  25 
Minn.  2'22,  33  Am.  Rep.  458 :  Goell  v.  Morse, 
120  Mass.  480 :  Ennis  v.  Hutchinson,  30  N.  J. 
Eq.  110 ;  Butler  v.  Roys,  25  Mich.  53,  12  Am. 
Rep.  218. 

Where  one  dies  intestate,  the  joint  owner- 
ship of  his  property  by  his  children  is  gen- 
erally that  of  tenants  in  common ;  Fenton  v. 
Miller,  94  Mich.  204,  53  N.  W.  957. 

ESTATE  IN  COPARCENARY.  An  estate 
which  several  persons  hold  as  one  heir, 
whether  male  or  female.  In  the  latter  case, 
it  arises  at  common  law,  when  an  estate  de- 
scends to  two  or  more  females ;  in  the  for- 
mer, when  an  estate  descends  to  all  the  males 
in  equal  degree  by  particular  custom.  This 
estate  has  the  three  unities  of  time,  title,  and 
possession;  but  the  interests  of  the  copar- 
ceners may  be  unequal.    1  Washb.  R.  P.  414; 

2  Bla.  Com.  1S8 ;  4  Kent  360 ;  Flynn  v.  Herye, 
4  Mo.  App.  300.  See  Coparcenary,  Estates 
in. 

ESTATE    IN    DOWER.     See  Dower. 

ESTATE  IN  EXPECTANCY.  An  estate 
giving  a  present  or  vested  contingent  right  of 
future  enjoyment.  One  in  which  the  right  to 
pernancy  of  the  profits  is  postponed  to  some 


future  period.     Such  are  <  remainder 

and  reversion.  Lawrence  v.  Bayard, 7  Paige, 
Oh.  (N.  Yj  70,  76;  Underbill  v.  R.  Co.,  20 
Barb.  455.     See  Exi 

ESTATE   IN    FEE-SIMPLE.     See 
PLE. 

ESTATE   IN    FEE-TAIL.     E  n 

ESTATE   IN   JOINT  TENANCY.    See.! 
Tenancy. 

ESTATE     IN     POSSESSION.      An     e 
where  the  tenant  is  in   actual   pernani 
receipt   of   the   rents   and    other   advai 
arising  therefrom.    2  Crabb,  R.  P.  ?  21 
Bla.  Com.  163.     Sec  Campau  v.  Campau,  19 
Mich.   116;    Valle  v.   Clemens,   18   Mo.   486; 
Expectancy. 

ESTATE  IN  REMAINDER.  See  Re- 
mainder. 

ESTATE  IN  REVERSION.  See  Rever- 
sion. 

ESTATE  IN  SEVERALTY.  See  SEVERAL- 
TY, Estate  in. 

ESTATE   IN  VADI0.     See  Mortgage. 

ESTATE  OF  FREEHOLD  or  FRANK- 
TENEMENT.  Any  estate  of  inheritance,  or 
for  life,  in  either  a  corporeal  or  incorporeal 
hereditament,  existing  in  or  arising  from 
real  property  of  free  tenure.  2  Bla.  Com.  104. 
It  thus  includes  all  estates  but  copyhold  and 
leasehold,  the  former  of  which  has  never  been 
known  in  this  country.  Freehold  in  deed  is 
the  real  possession  of  land  or  tenements  in 
fee,  fee-tail,  or  for  life.  Freehold  in  bur  is 
the  right  to  such  tenements  before  entry. 
The  term  has  also  been  applied  to 
es  which  a  man  holds  in  fee  or  for  life.  Mozl. 
&  W.  Diet,  i  1  Washb.  R.  P.  71,  037.  See 
Gage  v.  Scales,  100  111.  221;  State  v.  Rag- 
land,  75  N.  C.  12,  L.  R.  11  Eq.  454;  Liulki  m 
Ti:  momentum. 

ESTATE    OF    INHERITANCE.     An 
which  may  descend  to  heirs.     1  Washb.  It.  P. 
51  :    1  Steph.  Com.  218. 

All  freehold  estates  are  estates  of  inherit- 
ance, except  estates  for  life.  Crabb,  R.  P. 
§  945. 

ESTATE  PUR  AUTRE  VIE.  An  estate  for 
the  life  of  another.  It  arises  most  frequently 
when  a  tenant  for  his  own  life  conveys  his 
estate  to  a  third  person.  He  can  only  convey 
what  he  has,  and  his  grantee  takes  an  estate 
during  the  life  of  the  grantor,  if  the  tenant 
died  during  the  life  of  the  grantor  (who  was 
called  the  cestui  que  vie),  at  common  law  the 
residue  of  the  estate  went  to  the  first  person 
who  took  it.  termed  a  general  occupant.  If 
the  original  gift  was  to  the  tenant  and  his 
heirs,  the  heir  took  it  as  special  occupant 
By  statute  In  England,  if  there  Is  no  special 
occupant,  the  estate  goes  to  the  executors  as 
personalty,  if  not  disposed  of  by  will.  This 
rule  has  been  adopted  in  most  of  the  United 
States,  except  a  few,  where  it  still  descends 


ESTATE  PUR  AUTRE  VIE 


1078 


ESTOPPEL 


as  personalty;  1  Wasbb.  R.  P.  88 ;  2  Bla. 
Com.  120. 

Where  two  estates  come  to  one  person,  so 
that  if  in  the  same  right  they  would  merge, 
if  one  of  them  be  in  autre  droit,  there  will  be 
no  merger.  2  Bla.  Com.  177,  but  see  Sharsw. 
note  17. 

ESTATE  TAIL.     See  Fee-Tail. 

ESTATE  UPON  CONDITION.  See  Condi- 
tion. 

v  ESTATES  OF  THE  REALM.  The  lords 
spiritual,  the  lords  temporal,  and  the  com- 
mons of  Great  Britain.  1  Bla.  Com.  153 ;  3 
Hallam,  ch.  6,  pi.  3.  Sometimes  called  the 
three  estates. 

ESTER  IN  JUDGMENT.  To  appear  be- 
fore a  tribunal  either  as  plaintiff  or  defend- 
ant.   Kelh.  Norm.  L.  D. 

ESTIMATE.  A  word  used  to  express  the 
mind  or  judgment  of  the  speaker  or  writer 
on  the  particular  subject  under  consideration. 
It  implies  a  computation  or  calculation. 
People  v.  Clark,  37  Hun  (N.  Y.)  203. 

ESTOPPEL.  The  preclusion  of  a  person 
from  asserting  a  fact,  by  previous  conduct  in- 
consistent therewith,  on  his  own  part  or  the 
part  of  those  under  whom  he  claims,  or  by 
an  adjudication  upon  his  rights  which  he  can- 
not be  allowed  to  call  in  question. 

A  preclusion,  in  law,  whichj  prevents  a  man 
from  alleging  or  denying  a  fact,  in  conse- 
quence of  his  own  previous  act,  allegation, 
or  denial  of  a  contrary  tenor.    Steph.  PI.  239. 

A  plea  which  neither  admits  nor  denies 
the  facts  alleged  by  the  plaintiff,  but  denies 
his  right  to  allege  them.    Gould,  PI.  c.  2,  §  39. 

A  special  plea  in  bar,  which  happens  where 
a  man  has  done  some  act  or  executed  some 
deed  which  precludes  him  from  averring  any- 
thing to  the  contrary.    3  Bla.  Com.  308. 

Where  a  fact  has  been  admitted  or  asserted  for 
the  purpose  of  influencing  the  conduct  or  deriving 
a  benefit  from  another  so  that  it  cannot  be  denied 
without  a  breach  of  good  faith,  the  law  enforces  the 
rule  of  good  morals  as  a  rule  of  policy,  and  pre- 
cludes the  party  from  repudiating  his  representa- 
tions or  denying  the  truth  of  his  admissions ;  Doug- 
lass v.   Scott,  5  Ohio  199 ;    Rawle,  Cov.  407. 

This  doctrine  of  law  gives  rise  to  a  kind  of  plead- 
ing that  is  neither  by  way  of  traverse,  nor  confes- 
sion and  avoidance,  viz.:  a  pleading  that,  waiving 
any  question  of  fact,  relies  merely  on  the  estoppel, 
and,  after  stating  the  previous  act,  allegation,  or 
denial  of  the  opposite  party,  prays  judgment  if  he 
shall  be  received  or  admitted  to  aver  contrary  to 
what  he  before  did  or  said.  This  pleading  is  called 
a  pleading  by  way  of  estoppel.  Steph.  PI.  240  ; 
Blackington  v.  Johnson,  126  Mass.  21 ;  Andrews  v. 
Ins.  Co.,  18  Hun  (N.  Y.)  163 ;  Cross  v.  Levy,  57  Miss. 
634 ;  Byrne  v.  Bank,  31  La.  Ann.  81 ;  Stephenson 
v.  Walker,  8  Baxt.  (Tenn.)  289  ;  Hull  v.  Johnston, 
90  111.  604  ;  Walker  v.  Baxter,  6  Wash.  244,  33  Pac. 
426. 

Formerly  the  questions  regarding  estoppel  arose 
almost  entirely  In  relation  to  transfers  of  real  prop- 
erty, and  the  rules  in  regard  to  one  kind  of  estoppel 
were  quite  fully  elaborated.  In  more  modern  time 
the  principle  has  come  to  be  applied  to  all  cases 
where  one  by  words  or  conduct  wilfully  causes  an- 
other to  believe  in  the  existence  of  a  certain  state  of 
things,   and    induces   him   to  act   on   that   belief   or 


to  alter  his  own  previous  position ;  2  Exch.  653  ; 
Den  v.  Baldwin,  21  N.  J.  L.  403  ;  Titus  v.  Morse,  40 
Me.  348,  63  Am.  Dec.  665.  See,  as  to  the  reason  and 
propriety  of  the  doctrine,  Co.  Litt.  352  o;  Pelletreau 
v.  Jackson,  11  Wend.  (N.  Y.)  117  ;  Jones  v.  Sasser, 
18  N.   C.  464;     Blake  v.  Tucker,  12  Vt.  44. 

"The  correct  view  of  estoppel  is  that  taken  in  a 
recent  work  (Bigelow,  Est.).  'Certain  admissions,' 
it  is  there  said,  'are  indisputable,  and  estoppel  is  the 
agency  of  the  law  by  which  evidence  to  controvert 
their  truth  is  excluded.'  In  other  words,  when  an 
act  is  done,  or  a  statement  made  by  a  party  the 
truth  or  efficacy  of  which  it  would  be  a  fraud  on  his 
part  to  controvert  or  impair,  the  character  of  an 
estoppel  will  be  given  to  what  would  otherwise  be 
a  mere  matter  of  evidence.  The  law  of  estoppel, 
therefore,  is  a  branch  of  the  law  of  evidence,  it  has 
become  a  part  of  the  jurisdiction  of  chancery,  sim- 
ply because  in  equity  alone,  or  rather  by  equitable 
construction  alone,  has  that  full  effect  been  given  to 
this  species  of  evidence  which  is  necessary  to  the 
due  administration  of  justice."  Bisph.  Eq.  §  280. 
See   Tiedm.    Eq.    Jur.   106. 

"Estoppel  is  only  a  rule  of  evidence  and  you  can- 
not found  an  action  upon  estoppel.  Estoppel  is  only 
important  as  being  one  step  in  the  progress  towards 
relief  on  the  hypothesis  that  the  defendant  is  es- 
topped from  denying  the  truth  of  something  he  has 
said."  (1891)  3  Ch.  82,  105,  per  Bowen,  L.  J.  The 
doctrine  of  estoppel  was  applied  to  a  case  of  the 
transfer  of  shares  upon  a  forged  order;  L.  R.  3 
Q.  B.  584. 

Where  there  is  an  attempt  to  apply  the 
doctrine  of  estoppel,  one  essential  in  such  a 
case  is  that  the  party  in  whose  favor  it  is 
invoked  must  himself  act  in  good  faith; 
Vaughn  v.  Hixon,  50  Kan.  773,  32  Pac.  358; 
and  it  is  of  the  essence  of  estoppels  that  they 
must  be  mutual  and  certain  to  every  intent ; 
Sutton  v.  Dameron,  100  Mo.  141,  13  S.  W. 
497 ;  Sullivan  v.  R.  Co.,  128  Ala.  97,  30  South. 
528;  and  they  cannot  rest  on  argument  or 
inference;  id.  They  arise  out  of  matters  of 
fact,  not  of  law;  Snyder  v.  Studebaker,  19 
Ind.  462,  81  Am.  Dec.  415. 

Estoppels  are  of  three  kinds.  1.  By  deed. 
2.  By  matter  of  record.  3.  By  matter  in 
pais,  which  last  are  also  termed  equitable  es- 
toppels. 

By  Deed.  Such  as  arises  from  the  provi- 
sions of  a  deed.  It  is  a  general  rule  that  a 
party  to  a  deed  is  estopped  to  deny  any  thing 
stated  therein  which  has  operated  upon  the 
other  party:  as,  the  inducement  to  accept 
and  act  under  such  deed ;  Stow  v.  Wyse,  7 
Conn.  214,  18  Am.  Dec.  99 ;  Green  v.  Clark, 
13  Vt.  158;  Douglass  v.  Scott,  5  Ohio  199; 
Bennett  v.  Conant,  10  Cush.  (Mass.)  163; 
Reinhard  v.  Min.  Co.,  107  Mo.  616,  18  S.  W. 
17,  28  Am.  St.  Rep.  441 ;  Carson  v.  Cochran, 
52  Minn.  67,  53  N.  W.  1130 ;  Craig  v.  Reeder, 
3  McCord  (S.  C.)  411  ;■  including  a  deed  made 
with  covenant  of  warranty,  which  estops 
even  as  to  a  subsequently  acquired  title ; 
Jackson  v.  Matsdorf,  11  Johns.  (N.  Y.)  91,  6 
Am.  Dec.  355 ;  Baxter  v.  Bradbury,  20  Me. 
260,  37  Am.  Dec.  49 ;  Blake  v.  Tucker,  12  Vt. 
39;  Jenkins  v.  Collard,  145  U.  S.  546,  12  Sup. 
Ct.  868,  36  L.  Ed.  812;  Moore  v.  Crawford, 
130  U.  S.  122,  9  Sup.  Ct.  447,  32  L.  Ed.  878 ; 
Ayer  v.  Brick  Co.,  157  Mass.  57,  31  N.  E.  717 ; 
Woods  v.  Bonner,  89  Tenn.  411,  18  S.  W.  67; 
but,  while  this  is  the  general  rule,  there  Is 


ESTOPPEL 


1079 


ESTOPPEL 


no  estoppel  where  the  deed  is  a  release  with 
a  covenant  of  restricted  warranty  merely  of 
the  title  granted;  Conistock  v.  Smith,  13 
Pick.  (Mass.)  11G,  23  Am.  Dec.  670 ;  nor  will 
a  deed  of  release  without  covenant  of  war- 
ranty estop  the  grantor  from  contesting  the 
seisin  of  the  grantor  and  showing  seisin  in 
himself  by  an  older  and  better  title;  Ham  v. 
Ham,  14  Me.  351 ;  so  a  conveyance  of  all  of 
the  grantor's  right,  title  and  interest  does 
not  convey  more  than  he  has  at  the  time  and 
the  covenants  apply  only  to  the  grant  and  do 
not  enlarge  it;  Coe  v.  Persons  Unknown,  43 
Me.  432.  A  grantor  who  covenants  against 
incumbrances  without  reservation  is  estopped 
to  sue  for  obstruction  to  a  right  of  way 
across  the  granted  premises;  De  Rochemont 
v.  R.  R.,  64  N.  H.  500,  15  Atl.  131.  A  grantor 
whose  deed  recites  or  allirms  his  seisin  of  the 
estate  granted,  either  expressly  or  by  im- 
plication, is  estopped  to  deny  that  such  es- 
tate passed,  though  there  is  no  warranty; 
Reynolds  v.  Cook,  S3  Va.  S17,  3  S.  E.  710,  5 
Am.  St  Rep.  317 ;  but  while  he  may  not  show 
that  he  had  no  such  estate  as  the  deed  pur- 
ported to  convey,  he  is  not  estopped  to  show 
a  subsequently  acquired,  independent  title 
consistent  with  the  deed;  Cuthrell  v.  Haw- 
kins, 98  N.  C.  203,  3  S.  E.  672;  and  a  con- 
veyance with  warranty  by  one  who  had  no 
title,  but  wdio  afterwards  acquired  title  as 
trustee,  did  not  operate  by  estoppel  so  as  to 
make  the  latter  enure  to  the  former  grantee, 
since  an  estoppel  arises  only  when  the  new 
title  is  taken  in  the  same  right;  Dewhurst 
v.  Wright,  29  Fla.  229,  10  South.  6S2.  The 
doctrine  of  estoppel  by  deed  has  been  applied 
to  one  who,  having  as  agent  leased  land  for 
a  term  of  years,  was  not  permitted  to  set 
up  want  of  authority  to  make  the  lease;  Lee 
v.  Lee,  83  la.  565,  50  Nv  W.  33 ;  to  a  vendor 
who,  having  only  a  certificate  of  purchase  at 
a  tax  sale,  and  having  given  bond  to  make  a 
quitclaim  deed  on  payment  of  the  pun  base 
money,  was  precluded  from  acquiring  any 
title  by  virtue  of  the  tax  sale,  as  was  also 
one  claiming  from  him  by  descent  or  as  a 
purchaser  with  notice;  Jernigan  v.  Flowers, 
94  Ala.  SOS,  10  South.  437;  to  a  tenant  for 
life  who,  having  recognized  the  right  of  the 
remainderman  in  a  bequest  of  personal  prop- 
erty and  executed  a  deed  of  trust  therefor, 
could  not  afterwards  deny  the  right ;  Welsch 
v.  Bank,  94  111.  191;  to  one  who  attempts  to 
convey  title  to  the  property  as  executor  or 
administrator;  Millican  v.  McNeill,  102  Tex. 
189,  114  S.  W.  106,  132  Am.  St.  Rep.  863,  20 
Ann.  Cas.  74,  21  L.  R.  A.  (N.  S.)  60,  and  note 
in  which  are  collected  many  cases  and  the 
conclusion  reached  that  the  question  is  to  be 
determined  by  the  general  principles  of  the 
law  of  estoppel  and  not  by  any  considera- 
tions peculiar  to  this  class  of  cases. 

There  was  held  to  be  no  estoppel  against 
the  setting  up  of  a  subsequently  acquired  ti- 
tle by  one  who  quitclaimed  lands  in  which  at 


that  time  he  had  no  interest;  Jackson  t. 
Peek,  -I  Wend.  (X.  Y.)  300;  where,  after  the 
purchase  of  a  mortgage,  the  premises  were 
conveyed  subject  to  it,  and  the  deed  had  con- 
tained a  covenant  to  pay  it,  the  grantee  was 
permitted  to  insist,  as  against  the  purchaser 
.  that  he  was  not  liable;  Real 
Estate  Trusl  Co.  v.  Balch,  45  N.  Y.  Super. 
I  It  528,  in  which  the  court  held  that  the  case 
presented  no  one  of  tin-  elements 

of  an  estoppel,  and  critically  examined  the 
New  York  cases  on  the  question  of  liability 
under  such  covenants.  A  partition  deed  be- 
tween tenants  in  common  and  assignment 
thereunder  does  not  estop  one  of  the  parties 
from  setting  up  an  after-acquired  title  to 
land  so  assigned ;  Doaue  v.  Willcutt  5  Gray 
(Mass.)  328,  66  Am.  Dec.  369. 

"Where  under  the  law  there  is  an  entire 
lack  of  power  to  do  the  act  in  question,  it 
cannot  be  made  good  by  estoppel.  But  if  the 
power  to  do  the  act  existed,  and  there  was  a 
way  in  which  it  could  be  lawfully  exercised, 
and  it  purports  to  have  been  done  in  a  law- 
ful way,  a  person  who  has  induced  another 
to  act  upon  the  assumption  that  it  was  in 
fact  done,  may  be  estopped  from  questioning 
its  validity."  Mut.  Life  Ins.  Co.  v.  Corey, 
135  N.  Y.  326,  334,  31  N.  E.  1095. 

A  corporation  accepting  conveyance  of  a 
water  works  plant  by  deed  describing  cer- 
tain mortgages  thereon,  and  expressly  de- 
claring that  the  conveyance  was  made  sub- 
ject thereto,  is  thereby  estopped  from  ques- 
tioning the  validity  of  the  mortgages  ;  Ameri- 
can Waterworks  Co.  of  Illinois  v.  Loan  & 
Trust  Co.,  73  Fed.  956,  20  C.  C.  A.  133.  So 
also  a  city  taking  property  by  eminent  do- 
main subject  to  liens  is  estopped  to  deny 
their  validity;  City  Safe  Deposit  &  Agency 
Co.  v.  City  of  Omaha,  79  Neb.  446,  112  X.  \V. 
59S,  23  L.  R.  A.  (N.  S.).  72.  And  a  corpora- 
tion may  be  estopped  to  deny  the  execution 
of  a  mortgage  when  the  directors  assented, 
but,  by  reason  of  the  absence  of  some,  there 
was  no  formal  action  of  the  board  directing 
the  signing  and  sealing  by  the  officers;  Ne- 
vada Nickel  Syndicate  v.  Nickel  Co.,  96  Fed. 
133. 

To  create  an  estoppel,  the  deed  must  be 
good  and  valid  in  its  form  and  execution ; 
2  Washb.  R.  P.  41;  Alt  v.  Banholzer,  ::'.> 
Minn.  511,  40  N.  W.  830,  L2  Am.  St  Pep.  683  : 
and  must  convey  no  title  upon  which  the 
warranty  can  operate  in  case  of  a  covenant; 
Jackson  v.  Boffman,  9  Cow.  (N.  Y.)  271;  2 
Pres.  Abs.  216. 

Estoppels  affect  only  parties  and  privies 
in  blood,  law.  or  estate;  6  Bing,  X.  O.  79; 
Corbett  v.  Norcross,  35  X.  II.  99;  Patterson's 
1  .  5  Ohio  190;  Phelffs  v.  Blount, 

i:;  X.  ('.  177;  Wark  v.  Willard,  13  X.  II.  389; 
Calhoun  v.  Pierson,  44  La.  Ann.  5S4,  10  South. 
880;  Campbell  v.  Carroth,  32  Fla.  261,  13 
South.  132.  See  Knight  v.  Thayer,  125  Mass. 
25;   Stockstill  v.  Bart,  47  Fed.  231.     Estop- 


ESTOPPEL 


10S0 


.ESTOPPEL 


pels,  It  is  said,  must  be  reciprocal ;  Co.  Litt. 
352  a;  Furgeson  v.  Jones,  17  Or.  204,  20  Pac. 
842,  3  L.  R.  A.  620,  11  Am.  St.  Rep.  808.  But 
see  Winlock  v.  Hardy,  4  Litt.  (Ky.)  272; 
Small  v.  Procter,  15  Mass.  499 ;  Crittenden  v. 
Woodruff,  11  Ark.  S2 ;  2  Sm.  L.  C.  664.  And 
see  2  Washb.  R.  P.  45S. 

The  rule  requiring  mutuality  is  subject  to 
exceptions  which  are  discussed  at  large  by 
Van  Devanter,  J.,  in  Portland  Gold  Mining 
Co.  v.  Stratton's  Independence,  158  Fed.  63, 
85  C.  C.  A.  393,  16  L.  R.  A.  (N.  S.)  677,  and 
note.  Persons  claiming  under  a  common 
source  of  title  are  mutually  estopped  to  deny 
its  validity;  Gilliam  v.  Bird,  30  N.  C.  280, 
49  Am.  Dec.  379,  and  note  in  which  the  cases 
are  collected. 

An  estoppel  relating  to  an  interest  in  land 
passes  with  the  land,  and  an  estoppel  by 
deed  creates  what  in  law  is  termed  a  title  by 
estoppel ;  Mutual  Life  Ins.  Co.  v.  Corey,  135 
N.  Y.  326,  335,  31  N.  E.  1095. 

A  grantor  is  not  estopped  by  recitals  in 
his  deed  of  payment  of  consideration,  from 
suing  for  the  unpaid  purchase  money ;  Smith 
v.  Arthur,  110  N.  C.  400,  15  S.  E.  197;  nor 
are  recitals  an  estoppel  when  the  deed  con- 
taining them  is  not  operative ;  Wallace's  Les- 
see v.  Miner,  6  Ohio  366.  But  one  who  de- 
fended his  possession  on  the  sole  ground  that 
one  of  the  grantors  in  the  series  of  deeds  had 
no  title  was  bound  by  the  recitals  of  the  deed 
to  the  same  extent  as  if  he  were  privy  to  the 
grantor;  Kinsman's  Lessee  v.  Loomis,  11 
Ohio  475;  and  a  ward  after  coming  of  age 
was  held  bound  by  the  recitals  of  a  deed 
made  by  her  guardian1;  Esterbrook  v.  Savage, 
21  Hun  (N.  Y.)  145.  A  recital  in  a  bond  that 
it  was  under  seal  estops  the  obligor  from  de- 
nying that  it  was  so  executed ;  Metropolitan 
Life  Ins.  Co.  v.  Bender,  124  N.  Y.  47,  26  N.  E. 
345,  11  L.  R.  A.  708.  A  grantee  cannot  enter 
and  hold  under  a  deed  and  at  the  same  time 
repudiate  the  title  thereby  conveyed;  Kelso 
v.  Stigar,  75  Md.  376,  24  Atl.  18.  See  White 
v.  R.  Co.,  156  Mass.  1S1,  30  N.  E.  612 ;  Raby 
v.  Reeves,  112  N.  C.  6SS,  16  S.  E.  760 ;  Ogles- 
by  v.  Foley,  46  111.  App.  119;  Coward  v. 
Clanton,  79  Cal.  23,  21  Pac.  359. 

The  doctrine  of  estoppel  by  deed  did  not 
at  common  law  apply  to  a  married  woman, 
except  as  to  her  equitable  separate  estate; 
Big.  Est.  371,  citing  the  cases;  Bank  of 
America  v.  Banks,  101  U.  S.  240,  25  L.  Ed. 
S50 ;  Jones  v.  Reese,  65  Ala.  134 ;  but  under 
the  statutes  enabling  married  women  to  deal 
with  their  own  property,  her  liability  to  be 
estopped  is  doubtless  coterminous  with  her 
capacity  to  contract;  Neal  v.  Bleckley,  36 
S.  C.  468,  478,  15  S.  E.  733;  Appeal  of  Pow- 
ell, 98  Pa.  403,  413;  Knight  v.  Thayer,  125 
Mass.  25.  isfor  is  an  infant  estopped  by  his 
deed  unless  ratified  after  majority;  Cook  v. 
Toumbs,  36  Miss.  685;  Houston  v.  Turk,  7 
Yerg.  (Tenn.)  13. 

It  has  been  held  that  a  state  may  be  es- 
topped by  deed;    Com.  v.  Andre's  Heirs,  3 


Pick.  (Mass.)  224;  Bartlett  Land  &  Lumber 
Co.  v.  Saunders,  103  U.  S.  316,  26  L.  Ed.  546 ; 
State  v.  Ober,  34  La.  Ann.  359;  Penrose  v. 
Griffith,  4  Binn.  (Pa.)  231;  and  this  is  said 
to  be  "perhaps  the  better  opinion" ;  Big.  Est. 
371 ;  but  there  are  expressions  to  the  con- 
trary, though  generally  qualified  so  as  not  to 
conflict  with  the  doctrine  that  the  state  may 
be  estopped  by  legislative  action;  State  v. 
Williams,  94  N.  C.  891;  Alexander  v.  State, 
56  Ga.  478;  People  v.  Brown,  67  111.  435; 
but  not  by  official  laches  or  error;  State  v. 
Brewer,  64  Ala.  287 ;  U.  S.  v.  Kirkpatrick,  9 
Wheat.  (U.  S.)  735,  6  L.  Ed.  199 ;  The  Floyd 
Acceptances,  7  Wall.  (U.  S.)  676,  19  L.  Ed. 
169. 

By  Matter  of  Record.  Such  as  arises 
from  the  adjudication  of  a  competent  court. 
Judgments  of  courts  of  record,  and  decrees 
and  other  final  determinations  of  ecclesias- 
tical, maritime,  and  military  courts,  work  es- 
toppels ;  2  B.  &  Aid.  362 ;  Buck  v.  Collins,  69 
Me.  445;  Bradner  v.  Howard,  75  N.  Y.  417; 
Adams  v.  Adams,  25  Minn.  72 ;  Butterfield  v. 
Smith,  101  U.  S.  570,  25  L.  Ed.  868;  Henning 
v.  Warner,  109  N.  C.  406,  14  S.  E.  317 ;  Den- 
ver City  Irr.  &  Water  Co.  v.  Middaugh,  12 
Colo.  434,  21  Pac.  565,  13  Am.  St.  Rep.  234. 
Admissions  in  pleadings,  either  express  or 
implied,  cannot  afterwards  be  controverted 
in  a  suit  between  the  same  parties;  Com. 
Dig.  Estoppel  A  1.  It  is  of  the  essence  of 
estoppel  by  judgment  that  it  is  certain  that 
the  precise  fact  was  determined  by  the  for- 
mer judgment;  De  Sollar  v.  Hanscome,  158 
U.  S.  216,  15  Sup.  Ct.  816,  39  L.  Ed.  956; 
Nashua  &  L.  R.  Corp.  v.  R.,  164  Mass.  226,  41 
N.  E.  268,  49  Am.  St.  Rep.  454 ;  Empire  State 
Nail  Co.  v.  Button  Co.,  74  Fed.  S68,  21  C.  C. 
A.  152.  See  Res  Judicata,  where  the  subject 
of  estoppel  by  matter  of  record  is  treated. 

Estoppels  by  deed  and  by  record  are  com- 
mon-law doctrines. 

By  Matter  in  Pais.  Such  as  arises  from 
the  acts  and  declarations  of  a  person  by 
which  he  designedly  induces  another  to  alter 
his  position  injuriously  to  himself;  Brown 
v.  Wheeler,  17  Conn.  345,  44  Am.  Dec.  550; 
Kinney  v.  Farnsworth,  17  Conn.  355 ;  Frost 
v.  Ins.  Co.,  5  Denio  (N.  Y.)  154,  49  Am.  Dec. 
234 ;  Ensel  v.  Levy,  46  Ohio  St.  255,  19  N.  E. 
597 ;  Tousley  v.  Board  of  Education,  39  Minn. 
419,  40  N.  W.  509;  Pennypacker  v.  Latimer, 
10  Idaho  618,  81  Pac.  55 ;  Harrison  National 
Bank  of  Cadiz,  Ohio,  v.  Austin,  65  Neb.  632, 
91  N.  W.  540,  59  L.  R.  A.  294,  101  Am.  St. 
Rep.  639.  See  Humphreys  v.  Finch,  97  N.  C. 
303,  1  S.  E.  870,  2  Am.  St.  Rep.  293 ;  Joyce  v. 
Ry.  Co.,  43  111.  App.  157 ;  Vaile  v.  City  of  In- 
dependence, 116  Mo.  333,  22  S.  W.  695 ;  West- 
brook  v.  Guderian,  3  Tex.  Civ.  App.  406,  22 
S.  W.  59.  Equitable  estoppel,  or  estoppel  by 
conduct,  is  said  to  have  its  foundation  in 
fraud,  considered  in  its  most  general  sense; 
Bisph.  Eq.  §  282.  It  is  said  (Bigelow,  Estop. 
437)  that  the  following  elements  must  be 
present  in  order  to  constitute  an  estoppel  by 


ESTOPPEL. 


1081 


ESTOPPEL 


conduct:  1.  There  must  have  been  a  repre- 
sentation or  concealment  of  material  facts. 
2.  The  representation  must  have  been  made 
with  knowledge  of  the  facts.  3.  The  party 
to  whom  it  was  made  must  have  been  ig- 
norant of  the  truth  of  the  matter.  4.  It 
must  have  been  made  with  the  intention  that 
the  other  party  would  act  upon  it.  5.  The 
other  party  must  have  been  induced  to  act 
upon  it.  Ergenbright  v.  Henderson,  72  Kan. 
29,  82  Pac.  524;  Blodgett  v.  Perry,  97  .Mo. 
263,  10  S.  W.  891,  10  Am.  St.  Rep.  307.  See 
Bynuin  v.  Preston,  69  Tex.  2S7,  6  S.  W.  428, 

5  Am.  St.  Rep.  49 ;  Tiedm.  Eq.  Jur.  107.  The 
rule  of  equitable  estoppel  is,  that  where  one 
by  his  acts,  declarations,  or  silence  where  it 
is  his  duty  to  speak,  has  induced  another, 
in  reliance  on  such  acts,  declarations,  or 
silence,  to  enter  into  a  transaction,  he  shall 
not,  to  the  prejudice  of  the  person  mis- 
led, impeach  the  transaction:  per  Bates,  Ch., 
in  Marvel  v.  Ortlip,  3  Del.  Ch.  9;  Woodruff 
v.  Morristown  Instit.  for  Savings,  34  N. 
J.  Eq.  174 ;  Miles  v.  Lefi,  60  la.  168,  14  N.  W. 
233;  Stowe  v.  U.  S.r  19  Wall.  (U.  S.)  13,  22 
L.  Ed.  144;  Davis  v.  Williams,  49  la.  83; 
Griffin  v.  City  of  Lawrence,  135  Mass.  365; 
Given  v.  Printing  Co.,  114  Fed.  92,  52  C.  C. 
A.  40 ;  Linton  v.  Ins.  Co.,  104  Fed.  584,  44  C. 
C.  A.  54;  Greer  v.  Mitchell,  42  W.  Va.  494, 
26  S.  E.  302.  "He  who  by  his  language  or 
conduct  leads  another  to  do  what  he  would 
not  otherwise  have  done  shall  not  subject 
such  person  to  loss  or  injury  by  disappoint- 
ing the  expectations  upon  which  he  acted." 
Dickerson  v.  Colgrove,  100  U.  S.  578,  25  L.  Ed. 
618,  where  an  estoppel  in-  pais  in  regard  to 
real  estate  was  held  to  have  been  created  by 
a  letter  disavowing  intention  to  claim  the 
same. 

Representations,  in  order  to  constitute  an 
estoppel  must  be  made  to  induce  the  other 
party  to  act,  and  he  must  have  been  induced 
so  to  act;  Booth  v.  Lenox,  45  Fla.  191.  34 
South.  566 :  Welty  v.  Vulgamore,  24  Ohio  C. 
C.  572 ;  to  his  injury ;  Appeal  of  Columbus,  S. 

6  H.  R.  Co.,  109  Fed.  177,  4S  C.  C.  A.  275. 
They  must  amount  to  misrepresentation  or 
concealment  of  material  facts;  Brian  v.  Bon- 
villain,  111  La.  441,  35  South.  6.12 ;  Mining 
Co.  v.  Juab  County,  22  Utah  395,  62  Pac. 
1024;  Atkinson  v.  Plum,  50  W.  Va.  104,  40  S. 
E.  5S7,  5S  L.  R.  A.  7SS ;  of  which  the  other 
party  is  actually  and  permissively  ignorant; 
City  of  Ft.  Scott  v.  Brokerage  Co.,  117  Fed. 
51,  54  C.  C.  A.  437;  or  such  negligence  as 
amounts  to  fraud  in  law ;  Dye  v.  Crary,  13 
N.  Mex.  439,  85  Pac.  103S;  9  L.  R.  A.  (N.  S.) 
1136,  affirmed,  208  U.  S.  515,  28  Sup.  Ct.  360, 
52  L.  Ed.  595.  In  some  cases  it  is  held  that 
there  need  not  be  intent  to  deceive;  Maxon 
v.  Lane,  124  Ind.  592,  24  N.  E.  6S3 ;  Rogers 
v.  St.  Ry.,  100  Me.  86,  60  Atl.  713,  70  L.  R.  A. 
574 ;  Vanneter  v.  Crossman,  42  Mich.  465,  4 
N.  W.  216 ;  Lydick  v.  Gill,  68  Neb.  273,  94  N. 
W.  109;  Globe  Nav.  Co.  v.  Casualty  Co.,  39 
Wash.  299,  81  Pac.  826;  contra,  see  Stiff  v. 


Ashton,  155  Mass.  130,  29  N.  E.  203;  Beacon 
Trust  Co.  v.  Souther,  1-::  Mass.  413,  67  N. 
E.  345;  Pearson  v.  Hardin,  95  Mi' 
X.  W.  904;  Centennial  Eureka  Min.  Co.  v. 
Juab  County,  22  Utah  395,  62  Pac.  1024. 
There  is  no  estoppel  by  acts  in  pain  done  un- 
der a  misapprehension  of  facts  induced  by 
the  party  setting  up  the  estoppel ;  Mason  v. 
St.  Albans  Furniture  Co.,  149  Fed. 

In  some  cases  representations  as  to  future 
conduct  may  be  the  basis  of  estoppel,  if  their 
purpose  and  effect  involves  the  abandonment 
of  an  existing  righl  and  affects  the  conduct 
of  another;  Union  Mut.  Life  Ins.  Co.  v.  Mow- 
ry,  90  U.  S.  544,  24  L.  Ed.  074;  Edi 
trie  Light  Co.  v.  Electric  Co.,  59  Fed 
699;  Shields  v.  Smith,  37  Ark.  47;  StaytoD 
v.  Graham,  139  Pa.  1,  21  Atl.  2;  but  in  Eng- 
land it  is  otherwise;  5  H.  L.  Cas.  185,  214; 
8  App.  Cas.  407;  [190U]  A.  C.  117,  130. 

In  the  leading  case  on  this  subject  (Pickard 
v.  Scars,  6  Ad.  &  El.  469)  a  mortgagee  of  per- 
sonalty was  held  to  be  estopped  from  assert- 
ing his  title  under  the  mortgage  because  he 
bad  passively  acquiesced  in  a  purchase  of 
the  same  by  the  defendant  under  an  execu- 
tion against  the  mortgagor.  The  rule  of  that 
case  was  that  an  estoppel  arose  from  wilful- 
ly causing  another  to  believe  in  a  certain 
state  of  facts,  and  to  act  on  that  belief;  in 
Gregg  v.  Wells,  9  A.  &  E.  97,  Lord  Denman 
stated  the  rule  more  broadly  as  subjecting 
to  an  estoppel  one  who  negligently  and  cul- 
pably stands  by  and  allows  another  to  con- 
tract on  the  faith  of  a  fact  which  he  can 
contradict;  and  in  Freeman  v.  Cooke,  2  Exch. 
654,  it  was  said  by  Parke,  B.,  that  the  rule 
of  Pickard  v.  Sears  must  be  considered 
tablished.  but  that  by  the  term  •'wilfully"  it 
must  be  understood,  "if  not  that  the  party 
represents  that  to  be  true  which  he  knows 
to  be  untrue,  at  least,  that  he  means  his  rep- 
resentations to  be  acted  upon,  and  that  it  is 
acted  upon  accordingly."  The  establishment 
of  the  rule  as  thus  limited  was  followed  by 
Folger,  J.,  in  Continental  Nat  Bank  v.  Bank, 
50  X.  Y.  575,  where  the  principle  was  recog- 
nized that  doing  an  act  and  the  omission  to 
act  are  the  same;  Howard  v.  Hudson.  2  EL 
&  Bl.  1 ;  Knights  v.  Wiffen,  L.  R.  5  Q.  B.  660; 
Casco  Bank  v.  Keene,  53  Me.  103.  Cases  of 
estoppel  by  silence  are  numerous;  Appeal  of 
Thompson,  120  Pa.  367,  17  Atl.  643;  Sillo- 
way  v.  Ins.  Co.,  12  Gray  |  tfass.)  73  :  Blake  v. 
Ins.  Co.,  12  dray  (Mass.)  265;  35  Can.  Sup. 
Ct.  133  (criticised  at  length;  19  llarv.  L.  Kev. 
113);  but  silence  does  not  always  amount  to 
fraud;  Lawrence  v.  I.uhr,  65  Pa.  241;  and 
there  is  no  estoppel  by  silence  where  a  party 
has  had  no  opportunity  to  speak;  National 
Newark  Banking  Co.  v.  Bank,  o:;  Pa.  U7. 
See  Carroll  v.  Tucker,  2  Misc.  Rep.  397,  lil 
N.  Y.  Supp.  952. 

The  estoppel  will  be  limited  to  the  acts 
which  were  based  upon  the  representations 
out  of  which  the  estoppel  arose ;  thus,  where 
a  sheriff  had  a  writ  against  A,  but  took  B 


ESTOPPEL 


1082 


ESTOPPEL 


into  custody,  upon  B's  representations  that 
she  was  A,  but  detained  her  after  he  was 
informed  that  she  was  not  A,  B  was  estop- 
ped to  recover  damages  for  the  false  arrest 
but  not  for  the  subsequent  detention ;  2  C. 
B.  N.  S.  495.  See  Burney  v.  Collins,  50  Ga. 
90;  Tilton  v.  Nelson,  27  Barb.  (N.  T.)  595; 
Bisph.  Eq.  §  292. 

The  acts  alleged  as  an  estoppel  must  be 
executed  and  not  merely  executory ;  Rorer 
Iron  Co.  v.  Trout,  83  Va.  397,  2  S.  E.  713, 
5  Am.  St.  Rep.  2S5 ;  as  when  a  statement  is 
not  accepted  and  acted  upon,  it  does  not  con- 
stitute an  estoppel ;  Nosier  v.  R.  Co.,  73  la. 
268,  34  N.  E.  850;  Gilbert  v.  Vail,  60  Vt.  261, 
14  Atl.  542. 

The  doctrine  of  estoppel  in  pais  is  applied 
at  law  as  well  as  in  equity ;  Dickerson  v.  Col- 
grove,  100  U.  S.  578,  25  L.  Ed.  618  (where  the 
early  cases  are  cited) ;  Drexel  v.  Berney,  122 
U.  S.  241,  253,  7  Sup.  Ct.  1200,  30  L.  Ed.  1219 ; 
Wehrman  v.  Conklin,  155  U.  S.  327,  15  Sup. 
Ct.  129,  39  L.  Ed.  167;  Tracy  v.  Roberts,  88 
Me.  317,  34  Atl.  68,  51  Am.  St.  Rep.  394; 
Hagan  v.  Ellis,  39  Fla.  472,  22  South.  727,  63 
Am.  St.  Rep.  167;  Duke  v.  Griffith,  9  Utah 
476,  35  Pac.  512;  Marine  Iron  Works  v. 
Wiess,  148  Fed.  145,  78  C.  C.  A.  279;  Camp- 
bell v.  Min.  Co.,  141  Fed.  610,  73  C.  C.  A.  260 ; 
and  therefore  it  is  neither  necessary  nor  per- 
missible to  resort  to  equity  to  obtain  the  ben- 
efit of  it ;  Barnard  v.  German  American  Sem- 
inary, 49  Mich.  444,  13  N.  W.  811;  Vermont 
Copper  Min.  Co.  v.  Ormsby,  47  Vt.  709,  713; 
Anglo-American  Land,  Mortgage  &  Agency 
Co.  v.  Lombard,  132  Fed.  721,  6S  C.  C.  A.  89 ; 
to  be  available  it  must  be  specifically  plead- 
ed ;  id.  A  title  by  estoppel  has  been  held  suf- 
ficient to  maintain  ejectment  or  defend 
against  it ;  George  v.  Tate,  102  U.  S.  570,  26 
L.  Ed.  232;  where  the  subject  of  acquiring 
title  to  land  by  estoppel  is  fully  considered. 
See  Adverse  Possession. 

Whether  "title  by  estoppel,"  so  called,  may 
be  acquired  to  personal  property  is  the  sub- 
ject of  interesting  discussion  in  the  English 
courts  in  cases  of  registration  of  a  forged 
transfer  of  stock.  Such  a  transfer  was  held 
to  work  an  estoppel  in  favor  of  subsequent 
transferees;  L.  R.  3  Q.  B.  584;  but  not  in 
favor  of  the  holder  under  the  forged  trans- 
fer ;  49  L.  J.  Q.  B.  N.  S.  392,  where  Brett,  L. 
J.,  said  that  "an  estoppel  gives  no  title  to 
that  which  is  the  subject-matter  of  it."  He 
considered  that  the  meaning  of  the  phrase 
"legal  title  by  estoppel,"  as  used  in  the  older 
cases,  is  simply  an  expression  of  the  recog- 
nition of  the  doctrine  of  estoppel  by  the 
courts  of  law  as  much  as  in  those  of  equity, 
and  while  "the  estoppel  assumes  that  the 
reality  is  contrary  to  that  which  the  person 
is  estopped  from  denying,  it  has  no  effect 
whatever  upon  the  reality  of  the  circum- 
stances." 

It  is  said  that  the  contract  of  a  person 
under  disability  cannot  be  made  good  by  es- 
toppel ;  Bisph.  Eq.  §  293.     See  Lowell  v.  Dan- 


iels, 2  Gray  (Mass.)  161,  61  Am.  Dec.  448; 
Merriam  v.  R.  Co.,  117  Mass.  241;  Glidden 
v.  Strupler,  52  Pa.  400.  It  makes  no  differ- 
ence that  the  person,  if  a  married  woman, 
falsely  represented  herself  to  be  sole;  9  Ex. 
4l'l2;  Weathersbee  v.  Farrar,  97  N.  C.  107,  1 
S.  E.  616.  But  estoppel  may  operate  to  pre- 
vent such  a  person  from  enforcing  a  right. 
For  instance,  if  a  married  woman  were  to 
induce  A  to  buy  property  from  B,  knowing 
that  the  title  was  not  in  B,  but  in  herself, 
she  would  be  estopped  from  asserting  her  ti- 
tle against  A ;  Connolly  v.  Branstler,  3  Bush 
(Ky.)  702,  96  Am.  Dec.  278;  Brinkerhoff  v. 
Brinkerhoff,  23  N.  J.  Eq.  477 ;  Drake  v.  Glo- 
ver, 30  Ala.  382.  The  same  principle  would 
extend  to  similar  acts  on  the  part  of  an  in- 
fant ;  3  Hare  503 ;  Whittington  v.  Doe,  9  Ga. 
23 ;  but  not  unless  the  conduct  was  inten- 
tional and  fraudulent;  Harmon  v.  Smith,  38 
Fed.  482 ;  but  infancy,  being  in  law  a  shield 
and  not  a  sword,  cannot  be  pleaded  to  avoid 
liability  for  frauds,  trespasses  or  torts;  1 
Lev.  169 ;  International  Land  Co.  v.  Mar- 
shall, 22  Okl.  693,  98  Pac.  951,  19  L.  R.  A.  (N. 
S.)  1058,  where  the  cases  are  discussed  by 
Williams,  C.  J.  See  notes  in  57  L.  R.  A.  684 ; 
9  L.  R.  A.  (N.  S.)  1117;  16  L.  R.  A.  672. 

"Equitable  estoppel  is  not  applied  in  favor 
of  a  volunteer;"  [1898]  1  Ch.  82.  An  unexe- 
cuted contract  void  as  against  public  policy 
cannot  be  validated  by  invoking  the  doctrine 
of  estoppel ;  Robinson  v.  Patterson,  71  Mich. 
141,  39  N.  W.  21;  McKinney  v.  Development 
Co.,  167  Fed.  770,  93  C.  C.  A.  258. 

The  doctrine  that  estoppels  bind  not  only" 
parties,  but  privies  of  blood,  law,  and  estate, 
is  said  to  apply  equally  to  this  class  of  estop- 
pels ;  Bigelow,  Estop.  554,  629 ;  but  a  ward 
cannot  be  estopped  by  an  act  of  his  guard- 
ian which  the  other  party  to  the  agreement 
knew  to  be  unauthorized ;  Heisen  v.  Heisen, 
145  111.  65S,  34  N.  E.  597,  21  L.  R.  A.  434. 

An  agent  or  attorney  having  received  mon- 
ey for  his  principal  is  in  geueral  estopped  to 
deny  his  liability  to  pay  it  over  to  him,  but  it 
is  a  good  defence  that  he  was  divested  of 
the  property  or  required  to  pay  over  the  mon- 
ey by  one  having  a  paramount  title ;  Moss 
Mercantile  Co.  v.  Bank,  47  Or.  361,  82  Pac. 
8,  2  L.  R.  A.  (N.  S.)  657,  and  note,  8  Ann. 
Cas.  569. 

One  who  accepts  a  benefit  under  a  will  is 
thereby  estopped  to  deny  its  validity;  Drake 
v.  Wild,  70  Vt.  52,  39  Atl.  248  ;  Branson  v.  Wat- 
kins,  96  Ga.  55,  23  S.  E.  204 ;  Fry  v.  Morrison, 
159  111.  244,  42  N.  E.  774 ;  Utermehle  v.  Nor- 
ment,  197  U.  S.  40,  25  Sup.  Ct.  291,  49  L.  Ed. 
055,  3  Ann.  Cas.  520 ;  though  ignorant  of  the 
rule  of  law  on  the  subject;  id. 

At  common  law  there  was  no  estoppel 
against  the  sovereign;  10  Mod.  199,  and  the 
doctrine  is  applied  in  some  states;  State  v. 
Williams,  94  N.  C.  891;  but,  as  appears  su- 
pra, the  state  has  been  held  estopped  by  mat- 
ter of  record  and  by  deed.  The  weight  of  au- 
thority is  against  the  estoppel  of  the  govern- 


ESTOPPEL 


10S3 


ESTOPPEL. 


ment  by  matter  in  pais,  though  It  has  been 
questioned  whether  there  should  not  be ;  19 
Harv.  L.  Rev.  126;  and  where  the  s<> 
asserts  a  pecuniary  demand  in  court,  it  has 
been  applied,  though  with  hesitation;  Walk- 
er v.  U.  S.,  139  Fed.  409,  where  it  was  held 
that  acts  of  oilicers  of  the  United  States,  au- 
thorized to  shape  its  conduct  as  to  the  trans- 
action, may  work  an  estoppel  against  the 
government.  As  to  estoppels  against  the 
state  or  the  United  States,  see  note  to  State 
of  Michigan  v.  Jackson,  L.  &  S.  R.  Co.,  16 
C.  C.  A.  353. 

Estoppel  has  been  sustained  as  against  a 
municipal  corporation;  Beadles  v.  Smyser, 
209  U.  S.  393,  28  Sup.  Ot.  522,  52  L.  Ed.  849 ; 
and  it  has  been  held  that  an  estoppel  in  pais 
(by  reason  of  a  mistake  of  an  officer  which 
misled  a  person  searching  records)  cannot  be 
set  up  against  a  municipal  government  ;  Phil- 
adelphia Mortgage  &  Trust  Co.  v.  Omaha,  63 
Neb.  280,  88  N.  W.  523,  93  Am.  St.  Rep.  442 ; 
but  in  a  note  on  this  case  it  is  contended  that 
the  doctrine  of  estoppel  is  available  as 
against  the  sovereign ;  15  Harv.  L.  Rev.  737. 
It  is  sometimes  said,  though  usually  denied, 
that  there  can  be  no  estoppel  against  alleg- 
ing unconstitutionality,  and  for  an  examina- 
tion of  cases  on  this  point,  see  21  Harv.  L. 
Rev.  133.  It  is  also  held  that  parties  cannot 
estop  themselves  by  a  contract  "in  the  face 
of  an  act  of  parliament";  14  Ch.  D.  432. 

An  estoppel  against  one  of  two  joint  plain- 
tiffs, whose  right  is  to  a  joint  recovery,  will 
defeat  the  action ;  Mcintosh  v.  Dierken,  222 
Pa.  612,  72  Atl.  232;  one  who  applies  for 
company  shares  in  a  fictitious  name  will  not 
be  permitted  to  deny  liability  as  a  share- 
holder; 5  Manson  336. 

Where  the  facts  are  undisputed,  the  ques- 
tion whether  they  amount  to  an  estoppel  is 
one  of  law  for  the  court ;  Keating  v.  Orne,  77 
Pa.  89 ;  Cox  v.  Rogers,  77  Pa.  160 ;  Lewis  v. 
Carstairs,  5  W.  &  S.  (Pa.)  205.  Otherwise 
the  facts  are  of  course  to  be  submitted  to  the 
jury  under  proper  instructions  as  to  what 
will  constitute  an  estoppel. 

The  maxim  vigilantibus  non  domUentibus 
leges  adjuvant  specially  applies  to  a  claim 
of  equitable  estoppel,  since  in  such  eases  the 
interposition  of  equity  is  extraordinary  and 
restrictive  of  what  but  for  the  estoppel  would 
be  a  clear  legal  right;  Marvel  v.  Oitlip,  3 
Del.  Ch.  9.  The  representations  must  he  such 
as  to  lead  a  reasonably  prudent  man  to  act 
on  them  and  he  must  have  done  this  in  ig- 
norance of  the  truth  and  in  good  faith ;  Da- 
vis v.  Pryor,  112  Fed.  274,  no  C.  O.  A.  579. 

This  principle  has  been  applied  to  ca 
dedication  of  land  to  the  public  use;  Cincin- 
nati v.  White,  6  Pet.  (U.  S.)  438,  S  L.  Ed.  152  ; 
llobbs  v.  Inhabitants  of  Lowell,  19  Pick. 
(Mass.)  405,  31  Am.  Dec.  145 ;  of  the  owner's 
standing  by  and  seeing  land  improved;  Fa- 
vill  v.  Roberts,  50  N.  Y.  222:  Smith  v.  Mc- 
'Neal,  68  Pa.  164;  Truesdail  v.  Ward.  L't 
Mich.  134 ;    Forbes  v.  McCoy,  24  Neb.  702,  40 


X.  W.  132;  Alabama  G.  S.  R.  Co.  v.  R.  Co., 
84  Ala.  570,  3  South.  286,  5  Am.  St.  Rep 
401;   Robertson  v.  Wind  3  Tenn.  171, 

l  S.  W.  781;    Stone  v.  T; 

:..  878  ;    Marines  v.  i  :   s.  < '.  153, 

9    S.    E.   803,    17    Am.    St 
Epley    v.    Witherow,    7    Watts    (] 
Thompson  v.  Sanborn,  11  .\.  EL  201,  -.r,  Am. 

©0;   Morris  m   v.  Morrison's    WJ 
Dana  (Ky.)  13;  Snodgrass  v.  Bid  etts,  L3  CaL 
359;  Shapley  v.  Bangeley,  l  Woodb.  &  M.  213, 
Fed.  Cas.  No.  12,707;    Titus  v.  Mo 
348,  <;:;  Am.  Dec.  665;   Planet  Pr< 
nancial  Co.  v.  By.  Co.,  115  Mo.  613,  ul1  S.  W. 
616;      without    making    any    claim;     Planet 
Property  &  Financial  Co.  v.  By.  Co.,  115  Mo. 
613,  22  S.  W.  616;    Winters  v.  Armstrong,  37 
Fed.  50S;    Griffeth  v.  Brown,  7»;  Cal.  2< 
Pac.  372;   Weinstein  v.  Bank,  69  Tex.  38,  6 
S.  W.  171,  5  Am.  St.  Bep.  i'." ;   Bynum  v.  Pres- 
ton, 69  Tex.  287,  6  S.  W.  428,  5  Am.  St  Rep. 
49;    McMartin  v.  Ins.  Co.,  41  Minn.   198,  42 
N.  W.  934;    Irvine  v.  Scott,  85  Ky.  260,  3  S. 
W.   163.     But  the  owner  is  not  estopped  by 
the  unlawful  occupation  of  a  trespasser  for 
less  than  the  legal  period  of  limitation ;  Woll 
v.  Voight,  105  Minn.  371,  117  X.  W.  608,  23  L. 
R.  A.  (N.  S.)  270,  and  note. 

What  is  termed  an  estoppel  by  negligence 
occurs  when  one  who  is  under  a  legal  duty, 
either  to  the  person  injured  or  to  the  public, 
to  act  with  due  care,  fails  to  do  so,  and  such 
failure  is  the  natural  and  proximate  cause  of 
misleading  that  person  to  alter  his  position; 
but  to  create  the  estoppel  all  these  elements 
must  concur;  Bradford  v.  Ins.  Co.,  102 
48,  43  C.  C.  A.  310,  49  L.  R.  A.  530 ;  And r us 
v.  Bradley,  102  Fed.  54;  Central  R.  R.  Co. 
of  New  Jersey  v.  McCartney,  68  N.  J.  L.  L65, 
52  Atl.  575;  Brown  &  Co.  v.  Ins.  Co.,  42  Md. 
3S4,  20  Am.  Rep.  90 ;  Nye  v.  Denny,  IS  Ohio 
st.  246,  98  Am.  Dec.  lis;  Tisher  v.  Beck- 
with,  30  Wis.  55,  11  Am.  Rep.  546;  1  O.  I'.  D. 
578;  [1905J  1  K.  B.  677  (where,  however, 
payment  of  a  stolen  cheque  with  a  forged 
indorsement  was  held  good  under  the  law  of 
Austria  where  the  transaction  occurred 
though  it  would  not  have  been  good  in 
land). 

But  this  doctrine  does  not  apply  betweeu 
original  parties,  or  where  the  defence  is  that, 
by  reason  of  fraud,  the  writing,  on  which  the 
estoppel  is  claimed,  dees  not  embrace  the  con- 
tract as  originally  made;  Ward  v.  Spelts,  •"'•> 
Neb.  S09,  58  N.  W.  426;  Spelts  v.  Ward.  2 
Neb.  (Unof.)  177,  96  N.  W.  56. 

The  phrase  "estoppel  by  negligence"  has 
been  characterized  as  "an  expression  usual 
but  not  accurate,  since  negligence  prevents  a 
right  of  action  accruing,  estoppel  a  right  that 
has  accrued  from  being  set  up";  2  Beven, 
Negl.  L332,  where,  however,  a  chapter  is  de- 
voted to  the  subject.  So  also  Bigelow  treats 
the  doctrine  as  above  stated  as  a  recognized 
branch  of  estoppel;  Big.  Est.  (6th  ed.)  711; 
and  while  considering  it  quite  clear  that  "cas- 
es of  estoppel  arising  out  of  negligence  with- 


ESTOPPEL 


1084 


ESTOPPEL. 


out  a  representation  must  be  uncommon," 
thinks  it  well  settled  that  "negligence  when 
naturally  and  directly  tending  to  indicate  in- 
tention" is  equivalent  to  it  in  creating  an 
estoppel. 

See  an  interesting  discussion  of  the  doc- 
trine, with  critical  examination  of  the  Eng- 
lish cases,  by  John  S.  Ewart  in  15  L.  Q.  R. 
384. 

As  to  whether  the  doctrine  of  estoppel  has 
any  place  in  criminal  law,  see  12  Harv.  L-. 
Rev.  5G ;  2  Bish.  Cr.  L.  §  364 ;  State  v.  Spauld- 
ing,  24  Kan.  1 ;  Moore  v.  State,  53  Neb.  831, 
74  N.  W.  319. 

Quasi -Estoppel.  A  term  used  by  Bigelow 
to  cover  a  group  of  cases  in  which  a  party  is 
precluded  from  occupying  inconsistent  posi- 
tions, either  in  litigations  or  in  ordinary 
dealings;  Big.  Est.  (6th  ed.)  732.  The  prin- 
ciple covers  a  variety  of  cases  under  wills 
where  a  party  who  elects  to  take  a  benefit  is 
required  to  give  effect  to  an  otherwise  void 
devise;  31  Ch.  D.  466;  or  appointment;  2 
Atk.  88 ;  or  one  taking  a  benefit  under  it  can- 
not dispute  the  validity  of  a  deed ;  Pickett  v. 
Bank,  32  Ark.  346;  Robinson  v.  Peb worth, 
71  Ala.  240 ;  Jacobs  v.  Miller,  50  Mich.  119, 
15  N.  W.  42;  Wood  v.  Seely,  32  N.  Y.  105; 
or  of  a  contract  of  affreightment ;  The  Wa- 
ter Witch,  1  Black  (U.  S.)  494,  17  L.  Ed.  155. 
So  also  a  person  who  has  procured  the  en- 
actment of  a  statute  and  received  benefits 
under  it,  is  precluded  from  alleging  its  un- 
constitutionality;  Vose  v.  Cockcroft,  44  N. 
Y.  415;  Sherman  v.  McKeon,  38  N.  Y.  266; 
Cloud  v.  Coleman,  1  Bush  (Ky.)  548;  one 
who  has  petitioned  for  opening  a  street  or 
acquiesced  in  it  cannot  dispute  the  validity 
of  the  assessment  for  it ;  City  of  Burlington 
v.  Gilbert,  31  la.  356,  7  Am.  Rep.  143;  Ap- 
peal of  Ferson,  96  Pa.  140. 

It  has  been  held  that  a  party,  who  in  a 
cause  applies  for  affirmative  relief,  is  estop- 
ped from  setting  up  an  original  lack  of  juris- 
diction ;  Thompson  v.  Greer,  62  Kan.  522,  64 
Pac.  48;  Chandler  v.  Bank,  149  Ind.  601,  49 
N.  E.  579 ;  Lower  v.  Wilson,  9  S.  D.  252,  68 
N.  W.  545,  62  Am.  St.  Rep.  S65 ;  F.  C.  Austin 
Mfg.  Co.  v.  Hunter,  16  Okl.  86,  86  Pac.  293; 
Champion  v.  R.  Co.,  145  Mich.  676,  108  N.  W. 
1078 ;  Montague  v.  Marunda,  71  Neb.  805,  99 
N.  W.  653 ;  contra,  Freer  v.  Davis,  52  W.  Va. 
1,  43  S.  E.  164,  59  L.  R.  A.  556,  94  Am.  St. 
Rep.  895 ;  State  v.  Dist.  Court  of  Second  Ju- 
dicial Dist,  34  Mont.  226,  85  Pac.  1022 ;  and 
it  is  suggested  that  the  latter  view  should 
prevail  upon  the  principle  that  consent  can 
never  give  jurisdiction;  20  Harv.  L.  Rev. 
150,  237. 

It  is  to  be  noted  that  in  the  cases  grouped 
under  this  title  the  courts  have  generally 
used  the  simple  term  "estoppel"  which,  it 
has  been  suggested,  is  a  questionable  use  of 
terms,  since  many  of  the  cases  are  mere  in- 
stances of  ratification  or  acquiescence;  Big. 
Est.  755. 

Estoppel  in  pais  need  not  be  pleaded,  but 


this  rule  is  altered  in  many  states ;  Big.  Est. 
763. 

The  doctrine  of  estoppel  is  said  to  be  the 
basis  of  another  equitable  doctrine,  that  of 
election;   Bisph.  Eq.  §  294.     See  Election. 

ESTOVERS  (estouviers,  necessaries;  from 
estoffer,  to  furnish).  The  right  or  privilege 
which  a  tenant  has  to  furnish  himself  with 
so  much  wood  from  the  demised  premises  as 
may  be  sufficient  or  necessary  for  his  fuel, 
fences,  and  other  agricultural  operations.  2 
Bla.  Com.  35 ;  Van  Rensselaer  v.  Radcliff,  10 
Wend.  (N.  Y.)  639,  25  Am.  Dec.  582. 

Any  tenant  may  claim  this  right,  whether 
he  be  a  tenant  for  life,  for  years,  or  at  will ; 
and  that  without  waiting  for  any  special 
leave  or  assignment  of  the  lessor,  unless  he 
is  restrained  by  some  provision  contained  in 
his  lease;  Shepp.  Touchst.  3,  n.  1;  Chal.  R. 
P.  311.  Nor  does  it  appear  to  be  necessary 
that  the  wood  should  all  be  consumed  upon 
the  premises,  provided  it  is  taken  in  good 
faith  for  the  use  of  the  tenant,  and  in  rea- 
sonable quantities,  with  the  further  qualifica- 
tion, also,  that  no  substantial  injury  be  done 
to  the  inheritance;  Gardner  v.  Dering,  1 
Paige,  Ch.  (N.  Y.)  573. 

Where  several  tenants  are  granted  the 
right  of  estovers  from  the  same  estate,  it  be- 
comes a  common  of  estovers;  but  no  one  of 
such  tenants  can,  by  underletting  his  land  to 
two  or  more  persons,  apportion  this  right 
among  them ;  for  in  this  way  he  might  sur- 
charge the  land,  and  the  rights  of  his  co- 
tenants,  as  well  as  those  of  the  landlord, 
would  be  thereby  invaded.  In  case,  there- 
fore, of  the  division  of  a  farm  among  several 
tenants,  neither  of  the  under-tenants  can 
have  estovers,  and  the  right,  consequently, 
becomes  extinguished;  Van  Rensselaer  v. 
Radcliff,  10  Wend.  (N.  Y.)  650,  25  Am.  Dec. 
582 ;  4  Co.  36 ;  8  id.  78.  There  is  much  learn- 
ing in  the  old  books  relative  to  the  creation, 
apportionment,  suspension,  and  extinguish- 
ment of  these  rights,  very  little  of  which, 
however,  is  applicable  to  the  condition  of 
things  in  this  country,  except  perhaps  in  New 
York,  where  the  grants  of  the  manor-lands 
have  led  to  some  litigation  on  the  subject 
Tayl.  Landl.  &  T.  §  220.  See  4  Washb.  R.  P. 
99;  7  Bing.  640;  Padelford  v.  Padelford,  7 
Pick.  (Mass.)  152 ;  Richardson  v.  York,  14  Me. 
221;  Dalton  v.  Dalton,  42  N.  C.  197;  Owen  v. 
Hyde,  6  Yerg.  (Tenn.)  334,  27  Am.  Dec.  467; 
Loomis  v.  Wilbur,  5  Mas.  13,  Fed.  Cas.  No. 
8.49S. 

The  alimony  allowed  to  a  wife  was  called 
at  common  law,  estovers.  See  De  Estoveriis 
Habenois  ;   Common. 

ESTRAY.  Cattle  whose  owner  is  un- 
known. Spelman,  Gloss. ;  Walters  v.  Glats, 
29  la.  437;  Roberts  v.  Barnes,  27  Wis.  422; 
Shepherd  v.  Hawley,  4  Or.  206;  Lyman  v. 
Gipson,  18  Pick.  (Mass.)  426 ;  but  see  Worth- 
ington  v.  Brent,  69  Mo.  205;  State  v.  Apel, 
14  Tex.  431.    Any  beast,  not  wild,  found  with- 


ESTRAY 


1085 


LEPEMENT 


in  any  lordship,  and  not  owned  by  any  man. 
Cowell;  1  Ma.  Com.  297 ;  2  id.  14.  These  be- 
longed to  the  lord  of  the  soil.    Britt.  c.  IT. 

An  animal  turned  on  a  range  by  its  owner 
Is  not  an  estray,  although  its  immediate 
whereabouts  is  unknown  to  the  owner,  unless 
it  wanders  from  the  range  and  becomes  lost; 
Stewart  v.  Hunter,  10  Or.  62,  1G  Pac.  876,  8 
Am.  St.  Rep.  207. 

It  is  used  of  flotsam  at  sea.  15  L.  Q.  R. 
357. 

See  Animal;  Running  at  Large. 

ESTREAT.  A  true  copy  or  note  of  some 
original  writing  or  record,  and  especially  of 
fines  and  amercements  imposed  by  a  court, 
extracted  from  the  record,  and  certified  to  a 
proper  officer  or  officers  authorized  and  re- 
quired to  collect  them.  Fitzh.  N.  B.  57,  7G. 
A  forfeited  recognizance  taken  out  from 
among  the  other  records  for  the  purpose  of 
being  sent  up  to  the  exehciuer,  that  the  par- 
ties might  be  sued  thereon,  was  said  to  be 
estreated.     4  Bla.  Com.  253. 

ESTREPEMENT.  A  common-law  writ  for 
the  prevention  of  waste. 

The  same  object  being  attainable  by  a  mo- 
tion for  an  injunction  in  chancery,  the  writ 
became  obsolete  in  England,  and  was  abol- 
ished by  3  &  4  Will.  IV.  c.  27. 

The  writ  lay  at  common  law  to  prevent  a  party  In 
possession  from  committing  waste  on  an  estate  the 
title  to  which  was  disputed,  after  judgment  ob- 
tained in  any  real  action  and  before  possession  was 
delivered  by   the    sheriff. 

Iiut,  as  waste  might  be  committed  in  some  cases 
pending  the  suit,  the  statute  of  Gloucester  gave 
another  writ  of  estrepement  pendente  placito,  com- 
manding the  sheriff  firmly  to  inhibit  the  tenant 
"ne  faciat  vastum  vel  strepementnm  pendente  pla- 
cito dicto  indiscusso."  By  virtue  of  either  of  these 
writs,  the  sheriff  may  resist  those  who  commit 
waste  or  offer  to  do  so  ;  and  he  might  use  sufficient 
force  for  the  purpose  ;    3  Bla.  Com.  225,  226. 

The  writ  was  sometimes  directed  to  the 
sheriff  and  the  party  in  possession  of  the 
lands,  in  order  to  make  him  amenable  to  the 
court  as  for  a  contempt  in  case  of  his  dis- 
obedience to  the  injunction  of  the  writ.  At 
common  law  the  process  proper  to  bring  the 
tenant  into  court  is  a  venire  facias,  and 
thereon  an  attachment.  i'i">!i  the  defend- 
ant's coming  in,  the  plaintiff  declares  against 
him.  The  defendant  usually  pleads  "that 
he  has  done  no  waste  contrary  to  the* pro- 
hibition of  the  writ."  The  issue  on  this  plea 
is  tried  by  a  jury,  and  in  case  they  find 
againsl  the  defendant  they  assess  damages 
which  the  plaintiff  recovers.  But,  as  this 
verdict  convicts  the  defendant  of  a  contempt, 
the  court  proceed  against  him  for  that  cause 
as  in  other  cases;  Co.  2d  Inst.  329;  Rast 
317;  1  B.  &  P.  121;  2  Lilly,  Reg.  Estrepe- 
ment; 5  Co.  119;  Reg.  Brev.  76. 

In  Pennsylvania,  by  statute,  the  remedy 
by  estrepement  is  extended  for  the  benefit  of 
any  owner  of  lands  leased  for  years  or  at 
will,  at  any  time  during  the  continuance  or 
after  the  expiration  of  such  demise,  and  due 


notice  given  to  the  tenant  to  leave  the  same, 
agreeably   to  law;    or  for  any   purchaser  at 
sheriff  or  coroner's  sale  of  lands,  etc.,  after 
he  has  been  declared  the  highest  bidder  by 
the  sheriff  or  coroner;    or  for  any  mortf 
or  judgment-creditor,  afb 
by    such    Judgment  or   mortgage   shall    have 
been  condemned  by  inquisition,  or  whicl 
l-e  subject  to  be  sold  by  a  writ  of  venditioni 
exponas  or  b  vari  fa  .  Abr. 

407;  Woodf.  Landl.  &  T.  447;  ..  PL 

17;   7  Com.  Dig.  659;  Irwin  v.  Covode,  2 
162 ;   Byrne  v.  Boyle,  37  Pa.  2 

ET  ADJOURNATUR   (Lat).     And  it 

journed.     A   phrase  used  in  the  ol 
where  the  argument  of  a  cause  was  adjourn- 
ed to  another  day,  or  where  a  second  argu- 
ment was  had.     1  Keh.  Gf)2,  754. 

ET  ALIUS  (Lat).  And  another.  The  ab- 
breviation et  al.,  s<  '  'times  in  the  plural 
written  et  als.,  is  affixed  to  the  name  of  the 
first  plaintiff  or  defendant,  in  entitling  a 
cause,  where  there  are  several  joined  as 
plaintiffs  or  defendants. 

On  an  appeal  from  a  judgment  In  favor  of  two  or 
more  parties,  a  bond  payable  to  one  of  the  appel- 
lees et  al.  will  be  good ;  Conery  v.  Webb,  12  La. 
Ann.  282.  But  where  a  summons  should  state  the 
parties  to  the  action,  the  name  of  one  followed  by 
the  words  et  al.  is  not  sufficient;  Lyman  v.  Milton, 
44  Cal.  630. 

ET  C/ETERA  (Lat).  And  others:  and 
other  things.  See  Lathers  v.  Keogh,  39  Hun 
(N.  Y.)  576;  Agate  v.  Lowenbein.  4  Daly  (N. 
Y.)  62. 

The  addition  of  the  abbreviation  etc.  to 
some  minor  provisions  of  an  agreement  for 
a  lease  does  not  introduce  such  uncertainty 
as  to  prevent  a  decree  for  specific  perform- 
ance where  the  material  points  are  clear; 
2  De  G.  &  J.  559;  but  such  an  agreement 
"for  letting  and  taking  coals,  etc.,"  was  too 
indefinite  a  statement  of  the  natter 

of  the  agreement  to  admit  of  such  a  decree; 
1  De  G.  M.  &  G.  80;  an  agreement  "to  do  all 
the  painting,  papering,  repairing,  decorating, 
etc.,  during  the  term  of  the  lease"  was  not 
so  uncertain  as  to  prevent  a  specific  perform- 
ance; 21  L.  J.   , 

Under  a  bequest  of  "all  her  household  fur- 
niture and  effects,  plate,  linen,  china, 
hooks,   wearing  apparel,   etc.,"  it   was   claim- 
ed that  the   testatrix   had   disposed    <>f  the 
general   residue  of  her  estate,    but    she   was 
held  by  Komilly,  M.  R.,  to  be  intestate 
cept  as  to  the  articles  specified   in  the   will 
and  those  which  are   ejvsdem  generU 
Beav.    220;    and    the   same    judge    held    the 
words  good-will,  etc.,  in  a  contract,  to  include 
"such   other  things   as   are  necessarih 
nected    with    and    belong    to    the    good-will, 
.     .     .     for  instance,  the  use  of  trade-marks." 
and    a    covenant    not    to    engage   in    similar 
business   in    Great   Britain    for  a    reasonable 
time  to  be  limited  in  the  conveyance  having 
regard  to  the  nature  of  such  undertakings. 


ET  CJETERA 


10S6 


ET  UXOR 


"All  these  things  would  be  included  in  the 
words  et  cccteraf  28  L.  J.  Ch.  212 ;  "all  my 
furniture,  etc.,"  passed  only  property  ejus- 
dem  generis  and  not  shares  of  a  waterworks 
company ;  L.  R.  11  Eq.  363 ;  a  bequest  to 
his  widow  of  "all  my  money,  cattle,  farm- 
ing implements,  etc.,  she  paying"  certain 
sums  named  to  testator's  two  brothers, 
was  sufficient  to  make  the  widow  residu- 
ary legatee  of  real  and  personal  estate,  the 
latter  being  insufficient  to  pay  debts ;  Jessel, 
M.  R.,  L.  R.  4  Ch.  Div.  800. 

The  abbreviation  etc.  was  formerly  much 
used  in  pleading  to  avoid  the  inconveniences 
attendant  upon  making  full  and  half  de- 
fence. See  Defence.  It  is  not  generally  to 
be  used  in  solemn  instruments;  see  Com.  v. 
Ross,  6  S.  &  R.  (Pa.)  427;  when  used  in 
pleadings  to  avoid  repetition,  it  usually  re- 
fers to  things  unnecessary  to  be  stated ;  Da- 
no  v.  R.  Co.,  27  Ark.  5G4. 

Where  the  sense  of  the  abbreviation  may 
be  gathered  from  the  preceding  words  there 
is  sufficient  certainty ;  but  where  the  abbrevi- 
ation cannot  be  understood  and  affects  a 
vital  part  of  the  contract  or  instrument'  the 
uncertainty  will  be  fatal. 

See  Hayes  v.  Wilson,  105  Mass.  21;  Gray 
v.  R.  Co.,  11  Hun  (N.  Y.)  70;  Ejusdem 
Generis. 

ET  DE  HOC  PONIT  SE  SUPER  PATRI- 

AM  (Lat).  And  of  this  he  puts  himself  up- 
on the  country.  The  Latin  form  of  conclud- 
ing a  traverse.     See  3  Bla.  Com.  313. 

ET     HOC    PARATUS    EST    VERIFICARE 

(Lat).  And  this  he  is  prepared  to  verify. 
The  form  of  concluding  a  plea  in  confession 
and  avoidance;  that  is,  where  the  defendant 
has  confessed  all  that  the  plaintiff  has  set 
forth,  and  has  pleaded  new  matter  in  avoid- 
ance.   1  Salk.  2. 

ET  HOC  PETIT  QUOD  INQUIRATUR 
PER  PAT  R I  AM  (Lat).  And  this  he  prays 
may  be  inquired  of  by  the  country.  The 
conclusion  of  a  plea  tendering  an  issue  to 
the  country.     1  Salk.  3. 

ET  INDE  PRODUCIT  SECTAM  (Lat). 
And  thereupon  he  brings  suit.  The  Latin 
conclusion  of  a  declaration,  except  against 
attorneys  and  other  officers  of  the  court  3 
Bla.  Com.  295. 

ET  M0D0  AD  HUNC  DIEM  (Lat).  And 
now  at  this  day.  The  Latin  form  of  the 
commencement  of  the  record  on  appearance 
of  the  parties. 

ET  NON  (Lat).  And  not  These  words 
are  sometimes  employed  in  pleading  to  con- 
vey a  pointed  denial.  They  have  the  same 
effect  as  "without  this,"  absque  hoc.  2  Bou- 
vier,  Inst.,  2d  ed.  n.  2985,  note. 

ET  SIC  AD  PATRIAM  (Lat).  And  so  to 
the  country.  A  phrase  used  in  the  Year 
Books,  to  record  an  issue  to  the  country. 


ET  UXOR  TLat.  and  wife).  Used  to  show 
that  the  wife  of  the  grantor  is  a  party  to  the 
deed.     The  abbreviation  is  et  ux. 

ETHICS,  LEGAL.  That  branch  of  moral 
science  which  treats  of  the  duties  which  a 
member  of  the  legal  profession  owes  to  the 
public,  to  the  court,  to  his  professional 
brethren,  and  to  his  client. 

Perhaps  the  most  comprehensive  and  satisfactory 
treatment  of  the  subject  is  the  essay  of  Judge 
Sharswood,  originally  embodied  in  a  series  of  lec- 
tures to  the  law  school  of  the  University  of  Penn- 
sylvania, in  1854.  The  republication  of  the  fifth 
edition,  forty-two  years  after  the  issue  of  the  first, 
attests  the  interest  of  the  profession  in  the  work. 
It  was  republished  by  the  American  Bar  Associa- 
tion in  1907.  From  it  the  following  is  mainly  ex- 
tracted: 

The  relation  of  the  profession  to  the  public  is  so 
intimate  and  far-reaching,  that  it  "can  hardly  be 
over-estimated."  This  arises  from  its  influence 
both  on  legislation  and  jurisprudence ;  the  latter  of 
which  it  controls  entirely  and  "the  former  almost 
entirely."  Accordingly  there  is  involved  the  study 
of  the  true  ends  of  society  and  government  and  the 
conservation  of  life,  liberty,  and  property,  and  as 
means  to  these  ends  it  is  the  office  of  the  Bar  to 
diffuse  sound  principles  among  the  people,  to  aid  in 
forming  correct  public  opinion,  "to  maintain  the 
ancient  landmarks,  to  respect  authority,  and  to 
guard  the  integrity  of  the  law  as  a  science." 

The  responsibilities,-  legal  and  moral,  of  the  law- 
yer, arising  from  his  relations  to  the  court,  to  his 
professional  brethren,  and  to  his  client,  are  thus 
treated:  "Fidelity  to  the  court,  fidelity  to  the  client, 
fidelity  to  the  claims  of  truth  and  honor:  these  are 
the  matters  comprised  in  the  oath  of  office." 

"Fidelity  to  the  court  requires  outward  respect  in 
words  and  actions.  The  oath,  as  it  has  been  said, 
undoubtedly  looks  to  nothing  like  allegiance  to  the 
person  of  the  judge  ;  unless  in  those  cases  where 
his  person  is  so  inseparable  from  his  office,  that  an 
insult  to  the  one  is  an  indignity  to  the  other.  In 
matters  collateral  to  official  duty,  the  judge  is  on  a 
level  with  the  members  of  the  Bar,  as  he  is  with  his 
fellow-citizens ;  his  title  to  distinction  and  respect 
resting  on  no  other  foundation  than  his  virtues  and 
qualities  as  a  man."  Per  Gibson,  C.  J.,  in  In  re 
Austin,   5   Rawle   (Pa.)   204,  28   Am.   Dec.   657. 

"There  are  occasions,  no  doubt,  when  duty  to  the 
interests  confided  to  the  charge  of  the  advocate  de- 
mands firm  and  decided  opposition  to  the  views  ex- 
pressed or  the  course  pursued  by  the  court,  nay, 
even  manly  and  open  remonstrance  ;  but  this  duty 
may  be  faithfully  performed,  and  yet  that  outward 
respect  be  preserved,  which  is  here  inculcated. 
Counsel  should  ever  remember  how  necessary  it  is 
for  the  dignified  and  honorable  administration  of 
justice,  upon  which  the  dignity  and  honor  of  their 
profession  entirely  depend,  that  the  courts  and  the 
members  of  the  courts  should  be  regarded  with 
respect  by  the  suitors  and  people  ;  that  on  all  occa- 
sions of  difficulty  or  danger  to  that  department  of 
government,  they  should  have  the  good  opinion  and 
confidence  of  the  public  on  their  side." 

"Indeed  it  is  highly  important  that  the  temper  of 
an  advocate  should  be  always  equal.  He  should 
most  carefully  aim  to  repress  everything  like  ex- 
citability or  irritability.  When  passion  is  allowed 
to  prevail,  the  judgment  is  dethroned.  Words  are 
spoken,  or  things  done,  which  the  parties  afterwards 
wish  could  be  unsaid  or  undone.  Equanimity  and 
self-possession  are  qualities  of  unspeakable  value." 
"Another  plain  duty  of  counsel  is  to  present 
everything  in  the  cause  to  the  court  openly  in  the 
course  of  the  public  discharge  of  its  duties.  It  is 
not  often,  indeed,  that  gentlemen  of  the  Bar  so  far 
forget  themselves  as  to  attempt  to  exert  privately 
an  influence  upon  the  judge,  to  seek  private  inter- 
views, or  take  occasional  opportunities  of  accidental 
or  social  meetings  to  make  ex  parte  statements,  or 
to    endeavor    to    impress    their    views.    .    .    .    They 


ETHICS,  LEGAL 


1087 


ETHICS,  LEGAL 


know  that  such  conduct  Is  wrong  in  itself,  and  has 
a  tendency  to  impair  confidence  in  the  adminis- 
tration of  justice,  which  ought  not  only  to  be  pure 
but  unsuspected.  A  judge  will  do  right  to  avoid 
social  intercourse  with  those  who  obtrude  such  un- 
welcome matters  upon   his  moments  of  relaxation." 

"There  is  one  thing,  however,  of  which  gentlemen 
of  the  Bar  are  not  sufficiently  careful,— to  d 
age  and  prohibit  their  clients  from  pursuing  a  simi- 
lar course.    The  position  of  the  judge  In 
a  cause,  under  such  circumstances,  is  very 
rassing,  especially,  as  is  often  the  case,  if  he  hears 
a   good   deal   about   the   matter   before  he  discovers 
the    nature   of  the   business   and   object   of  the   call 
upon    him." 

"Counsel  should  set  their  faces  against  all  un- 
due influences  of  the  sort;  they  are  unfaithful  to 
the  court  if  they  allow  any  improper  means  of  the 
kind  to  be  resorted  to.  Judicem  nee  de  obtinendo 
jure  orari  oportet  nee  de  injuria  exorari.  It  may 
be  in  place  to  remark  here  that  the  counsel  in  a 
cause  ought  to  avoid  all  unnecessary  communica- 
tion with  the  jurors  before  or  during  any  trial  In 
which  he  may  be  concerned.  He  should  enforce  the 
same   duty   upon   his   client." 

"There  is  another  duty  to  the  court,  and  that  is, 
to  support  and  maintain  it  in  its  proper  province 
wherever  it  comes  in  conflict  with  the  co-ordiuate 
tribunal — the  jury." 

"It  need  hardly  be  added  that  a  practitioner 
ought  to  be  particularly  cautious,  in  all  his  dealings 
with  the  court,  to  use  no  deceit,  imposition,  or  eva- 
sion— to  make  no  statements  of  facts  which  he  does 
not  know  or  believe  to  be  true — to  distinguish  care- 
fully what  lies  in  his  own  knowledge  from  what  he 
has  merely  derived  from  his  instructions— to  pre- 
sent no  paper-books  intentionally  garbled.  'Sir 
Matthew  Hale  abhorred,'  says  his  biographer,  'those 
too  common  faults  of  misreciting  witnesses,  quot- 
ing precedents  or  books  falsely,  or  asserting  any- 
thing confidently ;  by  which  ignorant  Juries  and 
weak  judges  are  too  often  wrought  upon.'  " 

"The  topic  of  fidelity  to  the  client  involves  the 
most  difficult  questions  In  the  consideration  of  the 
duty   of    a    lawyer." 

"He  is  legally  responsible  to  his  client  only  for 
the  want  of  ordinary  care  and  ordinary  skill.  That 
constitutes  gross  negligence.  It  is  extremely  diffi- 
cult to  fix  upon  any  rule  which  shall  define  what  is 
negligence  in  a  given  case.  The  habits  and  practice 
of  men  are  widely  different  in  this  regard.  It  has 
been  laid  down  that  if  the  ordinary  and  average  de- 
gree of  diligence  and  skill  could  be  determined,  it 
would  furnish  the  true  rule.  Though  such  be  the 
extent  of  legal  liability,  that  of  moral  responsibility 
is  wider.  Entire  devotion  to  the  interest  of  the 
client,  warm  zeal  in  the  maintenance  and  defence 
of  his  rights,  and  the  exertion  of  his  utmost  learn- 
ing and  ability,— these  are  the  higher  points  which 
can  only  satisfy  the  truly  conscientious  practi- 
tioner." 

"But  what  are  the  limits  of  his  duty  when  the 
legal  demands  or  interests  of  his  client  conflict  with 
his  own  sense  of  what  is  just  and  right?  This  is  a 
problem  by  no  means  of  easy  solution.  That  lawyers 
are  as  often  the  ministers  of  injustice  as  of  Justice, 
is  the  common  accusation  in  the  mouth  of  gain- 
sayers  against  the  profession.  It  is  said  there  must 
be  a  right  and  a  wrong  side  to  every  lawsuit.  In 
the  majority  of  cases  it  must  be  apparent  to  the  ad- 
vocate on  which  side  is  the  justice  of  the  cause ; 
yet  he  will  maintain,  and  often  with  the  appear- 
ance of  warmth  and  earnestness,  that  side  which  he 
must  know  to  be  unjust,  and  the  success  of  which 
will  be  a  wrong  to  the  opposite  party.  Is  he  not 
then  a  participator  in  the  injustice?  It  may  be 
answered  in  general:  Every  case  is  to  be  decided, 
by  the  tribunal  before  which  it  is  brought  for  ad- 
judication, upon  the  evidence,  and  upon  the  prin- 
ciples of  law  applicable  to  the  facts  as  they  appear 
upon   the  evidence." 

"Now  the  lawyer  Is  not  merely  the  agent  of  the 
party  ;  he  is  an  officer  of  the  court.  The  party  has 
a  right  to  have  his  case  decided  upon  the  law  and 
the  evidence,  and  to  have  every  view  presented  to 
the    minds    of    the    judges    which    can    legitimately 


bear  upon  the  question.  This  is  the  office  which  the 
advocate  performs.  He  is  not  morally  responsible 
for  the  act  of  the  party  in  maintaining  an  unjust 
cause,  nor  for  the  error  of  the  court,  if  they  fall 
into  error,  in  deciding  it  iu  his  favor.  The  court  or 
jury  ought  certainly  to  hear  and  weigh  both  sides  ; 
and  the  office  of  the  counsel  is  to  assist  them  by 
doing  that  which  the  client  in  person,  from  want  of 
learning,  experience,  and  address,  is  unable  to  do  In 
a  proper  manner.  The  lawyer  who  ref>. 
fessional  assistance  because  in  his  judgment  the 
case  is  unjust  and  indefensible,  usurps  the  functions 
of  both   judge   and  jury." 

"As   an   answer   to   any   sweeping  objection   made 
to  the  profession  in  general,  the  view  thus  pn 
may  be  quite  satisfactory.     It  by  no  means  1 
however,  as  a  principle  of  private  action  for  the  ad- 
vocate, that  all  causes  are  to  be  taken  by  him  indis- 
criminately, and  conducted  with  a  view  to  one  sin- 
gle   end,    success.      It    is    much    to    be    feared, 
ever,  that  the  prevailing  tone  of  professional  ethics 
leads    practically    to    this    result.     He   has   an    un- 
doubted  right  to   refuse  a   retainer,   and  decline   to 
be  concerned  in  any  cause,  at  his  discretion.     It  is 
a  discretion  to  be  wisely  and  Justly  exercised.    When 
he  has  once  embarked  in  a  case,  he  cannot  retire 
from  it  without  the  consent  of  his  client  or  the  ap- 
probation  of   the  court." 

"Lord  Brougham,  In  his  Justly  celebrated  de- 
fence of  the  Queen,  went  to  very  extravagant 
lengths  upon  this  subject ;  no  doubt  he  was  led  by 
the  excitement  of  so  great  an  occasion  to  say  what 
cool  reflection  and  sober  reason  certainly  never  can 
approve.  'An  advocate,'  said  he,  'in  the  discharge 
of  his  duty  knows  but  one  person  in  all  the  world, 
and  that  person  is  his  client  To  save  that  client  by 
all  means  and  expedients,  and  at  all  hazard 
costs  to  other  persons,  and  among  them  to  himself, 
is  his  first  and  only  duty;  and  In  performing  this 
duty  he  must  not  regard  the  alarm,  the  torments, 
the  destruction  he  may  brlng*upon  others.  Separat- 
ing the  duty  of  a  patriot  from  that  of  an  advocate, 
he  must  go  on,  reckless  of  consequences:  though  It 
should  be  his  unhappy  lot  to  involve  his  country  iu 
confusion.'  " 

"On  the  other  hand,  and  as  Illustrative  of  the 
practical  difficulty  which  this  question  presented 
to  a  man  with  as  nice  a  perception  of  moral  duty 
as  perhaps  ever  lived,  It  is  said  by  Bishop  Burnet 
of  Sir  Matthew  Hale:  'If  he  saw  a  cause  was  un- 
just, he  for  a  great  while  would  not  meddle  further 
in  it,  but  to  give  his  advice  that  it  was  so  ;  If  the 
parties  after  that  would  go  on,  they  were  to  seek 
another  counsellor,  for  he  would  assist  none  in  acts 
of  injustice ;  if  he  found  the  cause  doubtful  or 
weak  in  point  of  law,  he  always  advised  his  clients 
to  agree  their  business.  Yet  afterwards  he  abated 
much  of  the  scrupulosity  he  had  about  causes  that 
appeared  at  first  unjust,  upon  this  occasion:  th>  re- 
were  two  causes  brought  him  which,  by  the  Igno- 
rance of  the  party  or  their  attorney,  were  so  Ill-rep- 
resented to  him  that  they  seemed  to  be  very  bad  ; 
but  he  inquiring  more  narrowly  Into  them,  found 
they  were  really  very  good  and  Just ;  so  after  this 
he  slackened  much  of  his  former  strictness  of  re- 
fusing to  meddle  in  causes  upon  the  ill  circum- 
stances that  appeared  In  them  at  first.'  " 

"There  is  a  distinction  to  be  made  between  the 
case  of  prosecution  and  defence  for  crimes ;  be- 
tween appearing  for  a  plaintiff  In  pursuit  of  an  un- 
just claim,  and  for  a  defendant  in  resisting  whit 
appears  to  be  a  Just  one.  Every  man,  accused  of 
an  offence,  has  a  constitutional  right  to  a  trial  ac- 
cording to  law  ;  even  If  guilty,  he  ought  not  to  be 
convicted     and    undergo    punishn  upon 

legal  evidence  ;  and  with  all  the  forms  which  have 
been  devised  for  the  security  of  life  and  liberty. 
These  are  the  panoply  of  Innocence,  when  unjustly 
arraigned  ;  and  guilt  cannot  be  deprived  of  It,  with- 
out 1  •  moving  it  from  innocence.  He  is  entitled, 
therefore,  to  the  benefit  of  counsel  to  conduct  his 
defence,  to  cross-examine  the  witnesses  for  the 
State,  to  scan,  with  legal  knowledge,  the  forms  of 
the  proceeding  against  him,  to  present  his  defence 
in  an  intelligible  shape,  to  suggest  all  those  r 
able  doubts  which  may  arise  from  the  evidence  as 


ETHICS,  LEGAL 


1088 


ETHICS,  LEGAL 


to  his  guilt,  and  to  see  that  if  lje  is  convicted,  It  is 
according   to    law." 

As  to  contingent  fees   Judge  Sharswood   says: 

"Regard  should  be  had  to  the  general  usage  of  the 
profession,  especially  as  to  the  rates  of  commis- 
sion to  be  charged  for  the  collection  of  undefended 
claims.  Except  in  this  class  of  cases,  agreements 
between  counsel  and  client  that  the  compensation 
of  the  former  shall  depend  upon  final  success  in  the 
lawsuit — in  other  words,  contingent  fees — however 
common  such  agreements  may  be,  are  of  a  very 
dangerous  tendency,  and  to  be  declined  in  all  or- 
dinary cases.  In  making  his  charge,  after  the  busi- 
ness committed  to  him  has  been  completed,  as  an 
attorney  may  well  take  into  consideration  the  gen- 
eral ability  of  his  client  to  pay,  so, he  may  also  con- 
sider the  pecuniary  benefit  which  may  have  been 
derived  from  his  services.  For  a  poor  man,  who  is 
unable  to  pay  at  all,  there  may  be  a  general  under- 
standing that  the  attorney  is  to  be  liberally  com- 
pensated in  case  of  success.  What  is  objected  to  is 
an  agreement  to  receive  a  certain  part  or  propor- 
tion of  the  sum  or  subject-matter,  in  the  event  of  a 
recovery,  and  nothing  otherwise." 
•  He  considers  that  the  practice  should  be  dis- 
couraged not  necessarily  on  the  consideration  of 
unlawfulness  but  of  morality  and  its  effect  on  the 
lawyer. 

"It  is  to  be  observed,  then,  that  such  a  contract 
changes  entirely  the  relation  of  counsel  to  the 
cause.  It  reduces  him  from  his  high  position  of  an 
officer  of  the  court  and  a  minister  of  justice,  to 
that  of  a  party  litigating  his  own  claim.  Having 
now  a  deep  personal  interest  in  the  event  of  the 
controversy,  he  will  cease  to  consider  himself  sub- 
ject to  the  ordinary  rules  of  professional  conduct. 
He  is  tempted  to  make  success,  at  all  hazards  and 
by  all  means,  the  sole  end  of  his  exertions.  He 
becomes  blind  to  the  merits  of  the  case,  and  would 
find  it  difficult  to  persuade  himself  no  matter  what 
state  of  facts  might  be  developed  in  the  progress  of 
the  proceedings,  as  to  the  true  character  of  the 
transaction,  that  it  was  his  duty  to  retire  from  it." 

"He  has  now  an  interest,  which  gives  him  a 
right  to  speak  as  principal,  not  merely  to  advise  as 
to  the  law,  and  abide  by  instructions.  It  is  either 
unfair  to  him  or  unfair  to  the  client.  If  he  thinks 
the  result  doubtful,  he  throws  all  his  time,  learning, 
and  skill  away  upon  what,  in  his  estimation,  is  an 
uncertain  chance.  He  cannot  work  with  the  prop- 
er spirit  in  such  a  case.  If  he  believes  that  the  re- 
sult will  be  success,  he  secures  in  this  way  a  higher 
compensation  than  he  is  justly  entitled   to  receive. 

"It  is  an  undue  encouragement  to  litigation.  Men, 
who  would  not  think  of  entering  on  a  lawsuit,  if 
they  knew  that  they  must  compensate  their  lawyers 
whether  they  win  or  lose,  are  ready  upon  such  a 
contingent  agreement  to  try  their  chances  with  any 
kind  of  a  claim.  It  makes  the  law  more  of  a  lot- 
tery than  it  is. 

"The  worst  consequence  is  yet  to  be  told, — its  ef- 
fect upon  professional  character.  It  turns  lawyers 
into  higglers  with  their  clients.  Of  course  it  is  not 
meant  that  these  are  always  its  actual  results  ;  but 
they  are  its  inevitable  tendencies,  in  many  instances 
its  practical  working.  To  drive  a  favorable  bar- 
gain with  the  suitor  in  the  first  place,  the  difficulties 
of  the  case  are  magnified  and  multiplied,  and  ad- 
vantage taken  of  that  very  confidence  which  led 
him  to  intrust  his  interests  to  the  protection  of  the 
advocate.  The  parties  are  necessarily  not  on  an 
equal  footing  in  making  such  a  bargain.  A  high 
sense  of  honor  may  prevent  counsel  from  abusing 
his  position  and  knowledge ;  but  all  have  not  such 
high  and  nice  sense  of  honor.  If  our  example  goes 
towards  making  the  practice  of  agreements  for  con- 
tingent fees  general,  we  assist  in  placing  such 
temptations  in  the  way  of  our  professional  brethren 
of  all  degrees — the  young,  the  inexperienced,  and 
the  unwary,  as  well  as  those  whose  age  and  expe- 
rience have  taught  them  that  a  lawyer's  honor  is 
his  brightest  jewel,  and  to  be  guarded  from  being 
sullied,  even  by  the  breath  of  suspicion,  with  the 
most   sedulous   care." 

On  the  same  subject  Mr.  Eli  K.  Price,  in  an  essay 
on  Limitations  and  Liens,  thus  expresses  his  opin- 


ion: "And  further  permit  me  to  advise  and  earnest- 
ly to  admonish  you,  for  the  preservation  of  profes- 
sional honor  and  integrity,  to  avoid  the  temptation 
for  bargaining  for  fees  or  shares  of  any  estate  or 
other  claim,  contingent  upon  a  successful  recovery. 
The  practice  directly  leads  to  a  disturbance  of  the 
peace  of  society,  and  to  an  infidelity  to  the  profes- 
sional obligation  promised  to  the  court,  in  which  is 
implied  an  absence  of  desire  or  effort  of  one  in  the 
ministry  of  the  temple  of  justice,  to  obtain  a  suc- 
cess that  is  not  just  as  well  as  lawful.  It  is  true,  as 
a  just  equivalent  for  many  cases  honorably  ad- 
vocated and  incompetently  paid  by  the  poor,  a  com- 
pensation may  and  will  be  received,  the  more 
liberal  because  of  the  ability  produced  by  success ; 
but  let  it  be  the  result  of  no  bargain,  exacted  as  a 
price  before  the  service  is  rendered,  but  rather  the 
grateful  return  for  benefits  already  conferred.  If 
rigid  in  your  terms,  in  protection  of  the  right  of  the 
profession  to  a  just  and  honorable  compensation, 
let  it  rather  be  in  the  amount  of  the  required  re- 
tainer, when  it  will  have  its  proper  influence  in  the 
discouragement  of  litigation."    See  Champerty. 

"The  boundaries  of  professional  privilege  and 
professional  obligation  are  clearly  defined  and  in 
no  way  doubtful.  Counsel  represents  the  prisoner 
to  defend  his  rights.  In  so  doing  he  is  bound  to 
exercise  competent  learning,  and  to  be  faithful, 
vigilant,  resolute.  But  he  is  at  the  same  time  an 
officer  of  the  court,  part  of  the  system  which  the 
law  provides  for  the  preservation  of  individual 
rights  in  the  administration  of  justice,  and  bound 
by  his  official  oath  to  fidelity  as  well  to  the  court 
as  to  the  client.  It  was  well  said  by  the  Chief 
Justice  in  Com.  v.  Jongrass,  181  Pa.  172,  37  Atl.  207: 
'There  is  no  code  of  professional  ethics  which  is 
peculiar  to  the  criminal  courts.  There  are  no  meth- 
ods of  practice  to  be  tolerated  there  that  are  not 
equally  entitled  to  recognition  in  the  civil  courts.* 
The  duty  of  the  counsel  is  to  see  that  his  client 
is  tried  with  proper  observance  of  his  legal  rights, 
and  not  convicted  except  in  strict  accordance  with 
law.  His  duty  to  his  client  requires  him  to  do  this 
much,  his  duty  to  the  court  forbids  him  to  do  more. 
An  independent  and  fearless  bar  is  a  necessary  part 
of  the  heritage  of  a  people  free  by  the  standards  of 
Anglo-Saxon  freedom,  and  courts  must  allow  a 
large  latitude  to  the  individual  judgment  of  counsel 
in  determining  his  action,  but  it  must  never  be 
lost  sight  of  that  there  is  a  corresponding  obligation 
to  the  court,  which  is  violated  by  excessive  zeal  or 
perverted  ingenuity  that  seeks  to  delay  or  evade 
the  due  course  of  legal  justice."  Com.  v.  Hill,  185 
Pa.  387,  39  Atl.  1055,  per  Mitchell,   J. 

In  an  address  of  Joseph  B.  Warner  before  the 
American  Bar  Association  (1896)  on  "The  Responsi- 
bilities of  the  Lawyer,"  will  be  found  a  discussion 
of  this  subject.  It  is  said  upon  the  much-discussed 
question  of  how  an  honorable  man  can  advocate 
what  he  knows  to  be  a  bad  cause,  that  it  is  im- 
portant to  look  at  the  profession  from  the  non- 
professional standpoint,  and  that  the  familiar  argu- 
ment that  every  man  has  the  right  to  have  the  law 
fairly  applied  to  his  case  is  a  solution,  less  satisfac- 
tory in  theory  than  in  practice,  of  the  problem  as  it 
confronts  the  individual  lawyer.  This  assumes  the 
presentation  of  a'  cause  by  an  official  spokesman 
before  a  competent  and  impartial  tribunal.  The 
theory  might  fit  a  mere  intermediary  in  the  public 
function  of  the  administration  of  justice,  but  does 
not  answer  when,  as  in  modern  practice,  it  concerns 
the  intimate  and  confidential  adviser  of  the  client 
who  is  thoroughly  identified  with  the  client  at  the 
inception  and  during  the  preparation  for  the  prog- 
ress of  the  trial  at  every  stage.  "Such  being  the 
lawyer's  immersion  in  his  client's  cause,  it  is  out  of 
the  question  to  consider  him  merely  as  a  perfunc- 
tory representative.  His  responsibility  for  litiga- 
tion in  its  inception,  its  progress,  and  its  results, 
must  be,  to  some  extent  at  least,  commensurate 
with  his  identification  with  the  cause.  If  he  wholly 
adopts  the  client  he  must  acknowledge  the  relation- 
ship. This  leaves  the  lawyer's  responsibility  where 
he  chooses  to  put  it.  He  may  limit  it  by  limiting 
his  relations  to  those  external  services  which  are 
guardedly  professional ;    he  may,  on  the  other  hand, 


ETHICS,  LEGAL 


1089 


ETHICS,  LEGAL 


enter  so  far  into  the  case  as  to  become  as  answer- 
able for  it  as  the  client  is,  or  even  more.  This  is, 
I  think,  the  position  which  the  lawyer  must  accept. 
He  cannot  make  a  case  his  own,  and  push  it  as  if 
he  were  a  party,  and  yet  disclaim  responsibility  for 
It  on  the  ground  that  his  connection  with  it  is 
wholly  official.  He  must  openly  accept  the  conse- 
quences of  whatever  he  does,  and  expect  no  shelter 
from  any  theory  of  the  professional  relation  which 
does  not  squarely  recognize  all  the  facts." 

Nor  does  Mr.  Warner  consider  that  the  unavoid- 
able influence  of  powerful  counsel  on  courts  is  to  be 
disregarded  as  a  disturbing  factor  in  the  cause  of 
Justice.  While  the  danger  may  be  slight  as  to 
courts,  with  juries  it  is  by  no  means  so,  and  "in 
proportion  as  the  lawyer  purposely  carries  a  jury 
t  the  facts,  or  beyond  the  facts,  so  far  the 
verdict  Is  his  act.  To  that  responsibility  he  must 
be  held."  The  shadowy  impression  of  an  obligation 
to  undertake  any  cause  is  dismissed  as  untenable 
and  inconsistent  with  present  conditions.  The 
counsel  is  in  a  measure  responsible  for  the  cause  he 
has  chosen  to  take.  It  is  true  he  Is  not  required  to 
settle  all  doubts  against  his  client,  and  due  regard 
is  to  be  had  for  the  uncertainty  of  the  law  and  the 
unquestioned  fact  that  the  lawyer  must  administer 
It  as  it  is,  and  not  in  each  case  sit  in  judgment  upon 
Its  wisdom  or  policy.  The  law,  therefore,  he  does 
not  control,  but  as  to  facts  there  is  grave  respon- 
sibility. No  special  rule  can  be  formulated  to  dis- 
tinguish between  true  and  false  advocacy,  and 
allowance  is  to  be  made  for  the  avowedly  partisan 
attitude  of  the  counsel,  but  "from  a  piece  of  false 
evidence,  or  a  false  statement  in  argument,  every 
decent  lawyer  starts  back.  .  .  .  Certainly  nothing 
could  be  worse  than  to  give  any  sanction  whatever 
to  a  theory  which,  though  never  avowed,  may  some- 
times b,e  tacitly  assumed,  that  the  practice  of  the 
law  is  a  game,  or  a  species  of  warfare,  in  which 
there  may  be  a  few  rules  agreed  on,  but  in  the 
main  there  is  but  one  thing  to  consider,  and  that  is 
victory.  As  in  the  strange,  unethical  ethics  of  war 
you  may  not  use  poisoned  bullets,  but  may  use  ex- 
plosive shells,  and  may  not  poison  the  well  in  the 
besieged  city,  but  may  destroy  the  provision  train 
on  its  way  thither,  so  in  a  court  of  law,  on  this 
monstrous  theory,  though  you  may  not  actually 
suborn  witnesses,  you  may  take  advantage  of  every 
piece  of  falsehood  which  in  any  other  way  can  pass 
in,  undetected,  in  evidence  or  argument.  But  if  law 
is  a  game,  it  is  a  game  in  which  the  stakes  are 
human  happiness  and  character  ;  if  it  is  war,  it  is 
not  a  war  for  plunder,  but  one  for  principles,  which 
cannot  be  set  up  with  glory  in  the  end  i£  they  have 
been  first  defiled  and  trampled  under  foot  by  the 
victors."  The  subject  is  thus  fairly  summed  up: 
"At  last  the  moralities  of  the  practice  of  the  law 
must  rest  on  the  individual  lawyer,  and  perhaps 
little  more  can  be  said  by  way  of  particular  rules 
for  professional  conduct  than  that  the  lawyer  is  un- 
der all  the  obligations  which  the  highest  standard, 
rightly  understood,  imposes  on  any  man.  From 
these  he  neither  gets,  nor  claims,  an  exemption  by 
reason  of  any  convention  which  would  permit  false- 
hood, nor  by  reason  of  working  within  a  system 
which,  to  some  extent,  settles  conduct  by  general 
rules  of  law  without  regard  to  the  moral  aspect  of 
particular  cases." 

Our  system  is  not  devised  primarily  to  discover 
truth,  nor  is  the  lawyer  chiefly  a  searcher  after 
truth.  If  he  were,  his  methods  would  seem  strange, 
Indeed.  Our  administration  of  law  is  made,  or 
rather  has  grown,  by  forces  which  are  virtually  the 
great  forces  of  nature,  to  meet  human  needs,  to 
control  the  elemental  passions  of  men,  to  regulate 
the  affairs  of  life.  ...  It  has  the  imperfections 
and  the  contradictions  of  all  human  things.  It  does 
not  always  conform  to  rules,  however  unquestion- 
able and  right.  It  touches  all  of  life  and  takes  on 
both  good  and  evil  by  the  contact.  In  its  critical 
moments,  when  it  is  centred  in  a  trial  in  court,  it 
is  the  modern  phase  of  all  ancient  strife,  the  visible 
struggle,  old  as  the  world,  of  all  the  passions  of 
anger,  hate,  greed,  and  avarice,  less  wild  than  of 
old,  but  still  full  of  their  inherited  spirit,  and  now 

Bouv.— 69 


forced  into  an  arena  which,  excepting  war  itself.  Is 
left  as  the  only  battlefield  for  the  irrepressible 
fighting  instincts  of  the  race. 

That  these  contests  should  not  always  proceed  in 
irreproachable  methods  and  infallibly  end  in  right 
results,  is  not  to  be  wondered  at:  that  the  men  who 
engage  in  them  as  trained  contestants  sometimes 
fight  with  indefensible  tactics  must  be  laid  to  traits 
which  yet  survive  in  the  human  animal.  The  vigor- 
ous participation  in  affairs,  with  a  purpose  to  do 
right,  is  the  most  wholesome  moral  tonic  that  our 
nature  can  have.  This  way  lies  open  in  the  practice 
of  the  law.  It  cannot  be  said  to  be  free  from  per- 
plexities. The  practitioner  will  not  find  himself  in 
a  plain  way  in  which  the  fool  cannot  err.  But  he 
will  find  himself  in  the  midst  of  abundant  oppor- 
tunities for  service  to  mankind,  will  see  before  him 
ideals  among  the  highest  which  our  minds  can 
reach,  and  will  have  the  encouragement  of  exam- 
ples which  are  not  behind  the  farthest  mark  that 
human  nature  has  touched  in  its  approach  to  jus- 
tice. 

Among  numerous  works  and  articles,  the  follow- 
ing may  be  referred  to:  Virginia  State  Bar  Assoc 
Reports,  1894 ;  Butler,  Lawyer  &  Client,  1871 ;  Ea- 
ton, Public  Relations,  etc.,  of  the  Legal  Profes- 
sion, 1882 ;  Hearn,  Legal  Duties  &  Rights,  1883 ; 
Hill,  The  Bar;  Its  Ethics,  1881;  Hoffman,  Legal 
Studies;  Pollock,  Essays  in  Jurispr.  &  Etbics,  lbSJ; 
Sedgwick,  Relation  &  Duty  of  the  Lawyer  to  the 
State,  1892 ;  Warren,  Professional  Duties.  1870 ;  F. 
C.  Brewster's  Address  before  the  Phila.  Law  Acad- 
emy, 1861 ;  Woolworth,  Duty,  etc.,  of  the  Profession, 
Nebraska  State  Bar  Assoc.  1877  ;  Lord  Herschell, 
Rights  &  Duties  of  an  Advocate,  Glasgow  Jurid.  Soc. 
1890  ;  The  Responsibilities  of  the  Lawyer,  by  Joseph 
B.  Warner,  Amer.  Bar.  Assoc.  1896 ;  Henry  Wade 
Rogers,  16  Yale  L  J.  225. 

Canons  of  legal  ethics  have  been  published 
by  several  State  Bar  Associations.  As  to 
the  civil  law,  see  Advocatl 

EUGENICS.  Acts  forbidding  marriage 
except  upon  proof  of  the  good  health  of  one 
or  both  of  the  parties  have  recently  been 
passed  in  a  few  states.  The  Wisconsin  act 
has  been  declared  invalid  in  an  unreported 
case. 

EUNDO,  MORANDO  ET  REDEUNDO 
(Lat).  This  Latin  phrase  signifies  going, 
remaining,  and  returning.  It  is  employed  in 
cases  where  a  person  is  privileged  from  ar- 
rest, in  order  to  give  him  the  freedom  neces- 
sary to  the  performance  of  his  respective  ob- 
ligations, to  signify  that  he  is  protected  from 
arrest  cundo,  morando  et  redcundo. 

EUNOMY.  Equal  laws  and  a  well-adjust- 
ed constitution  of  government. 

EVASION  (Lat  evador,  to  avoid).  A 
subtle  device  to  set  aside  the  truth  or  es- 
cape the  punishment  of  the  law  :  as,  if  a 
man  should  tempt  another  to  strike  him 
first,  in  order  that  he  might  have  an  oppor- 
tunity of  returning  the  blow  with  impuni- 
ty. He  is,  nevertheless,  punishable,  because 
he  becomes  himself  the  in  such  a 

case.     Hawk.  PL  Cr.  c.  31,   §S  24,  25;   Bac. 
Abr.  Fraud,  A. 

EVENT.  The  consequences  of  anything, 
the  issue,  conclusion,  end  ;  that  in  which  an 
action,  operation,  or  series  of  operations, 
terminates.  Fitch  v.  Bates,  11  Barb.  (N.  Y.) 
•173. 


EVERY 


1000 


EVICTION 


EVERY.  All  the  separate  individuals  who 
constitute  the  whole  regarded  one  by  one. 
State  v.  Penny,  19  S.  C.  221.     See  All. 

EVICTION.  Deprivation  of  the  possession 
of  lands  or  tenements. 

Originally  and  technically,  the  disposses- 
sion must  be  by  judgment  of  law;  if  other- 
wise, it  was  an  ouster;  Lansing  v.  Van  Al- 
styne,  2  Wend.  (N.  Y.)  563,  note;  Webb  v. 
Alexander,  7  Wend.  (N.  Y.)  2S5;  but  the  ne- 
cessity of  legal  process  was  long  ago  aban- 
doned in  England;  4  Term  617;  and  in  this 
country  also  it  is  settled  that  there  need 
not  be  legal  process ;  Greenvault  v.  Davis,  4 
Hill  (N.  Y.)  645;  Grist  v.  Hodges,  14  N.  C. 
200;  Green  v.  Irving,  54  Miss.  450,  28  Am. 
Rep.  360.  •  The  word  is  difficult  to  define  with 
technical  accuracy ;  17  C.  B.  30 ;  but  it  may 
be  fairly  stated  that  any  actual  entry  and 
dispossession,  adversely  and  lawfully  made 
under  paramount  title,  will  be  an  eviction; 
Rawle,  Cov.  §  133. 

Total  eviction  takes  place  when  the  pos- 
sessor is  wholly  deprived  of  his  rights  in  the 
premises.  Partial  eviction  takes  place  when 
the  possessor  is  deprived  of  only  a  portion  of 
them ;  as,  if  a  third  person  comes  in  and 
ejects  him  from  the  possession  of  half  his 
land,  or  establishes  a  right  to  some  ease- 
ment over  it,  by  a  title  which  is  prior  to 
that  under  which  he  holds. 

With  respect  to  the  demised  premises,  an 
eviction  consists  in  taking  from  a  tenant 
some  part  of  the  premises  of  which  he  was 
in  possession,  not  in  refusing  to  put  him  in 
possession  of  something  which  by  the  agree- 
ment with  his  landlord  he  should  have  en- 
joyed;  Etheridge  v.  Osborn,  12  Wend.  (N. 
Y.)  529.  And  in  order  to  effect  a  suspension 
of  rent  there  must  be  something  equivalent 
to  an  expulsion  from  the  premises,  and  not  a 
mere  trespass,  or  disturbance  in  the  enjoy- 
ment of  them  ;  Allen  v.  Pell,  4  Wend.  (N.  Y.) 
505;  City  of  New  York  v.  Price,  5  Sandf. 
( N.  Y.)  542 ;  T.  Jones  148 ;  Nelson  v.  Allen,  1 
Yerg.  (Tenn.)  379;  Bartlett  v.  Farrington, 
120  Mass.  284.  The  entry  of  a  landlord  up- 
on demised  premises  for  the  purpose  of  re- 
building does  not  operate  as  an  eviction, 
where  it  was  with  the  tenant's  assent  and 
not  to  his  entire  seclusion ;  Heller  v.  Ins. 
Co.,  151  Pa.  101,  25  Atl.  83. 

It  is  not  necessary,  however,  in  order  to 
produce  the  eviction  of  a  tenant,  that  there 
should  be  an  actual  physical  expulsion ;  for 
a  landlord  may  do  many  acts  tending  to  di- 
minish the  enjoyment  of  the  premises,  short 
of  an  expulsion,  which  will  amount  to  an 
eviction  in  law :  as  if  he  intentionally  dis- 
turb the  tenant's  enjoyment  to  such  an  ex- 
tent as  to  injure  his  business  or  destroy  the 
comfort  of  himself  and  family,  or  render 
the  premises  unfit  for  the  purposes  for  which 
they  were  leased,  it  will  amount  to  an  evic- 
tion; Dyett  v.  Pendleton,  8  Cow.  (N.  Y.) 
727 ;  Edmison  v.  Lowry,  3  S.  D.  77,  52  N.  W. 


583,  17  L.  R.  A.  275,  44  Am.  St.  Rep.  774; 
Duff  v.  Hart,  16  N.  Y.  Supp.  163;  O'Neill  v. 
Manget,  44  Mo.  App.  279;  Hoeveler  v.  Flem- 
ing, 91  Pa.  322;  Royce  v.  Guggenheim,  106 
Mass.  201,  8  Am.  Rep.  322 ;  Alger  v.  Kennedy, 
49  Vt.  109,  24  Am.  Rep.  117 ;  Wade  v.  Herndl, 
127  Wis.  544,  107  N.  W.  4,  5  L.  R.  A.  (N.  S.) 
855,  7  Ann.  Cas.  591. 

Constructive  eviction  may  arise  from  any 
wrongful  act  of  the  lessor  which  deprives 
the  tenant  of  the  full  enjoyment  of  the  leas- 
ed premises :  as,  by  forbidding  an  under- 
tenant to  pay  rent  to  the  tenant;  Leadbeater 
v.  Roth,  25  111.  587 ;  building  a  fence  in  front 
of  the  premises  to  cut  off  the  tenant's  access 
thereto;  see  Boston  &  W.  R.  Co.  v.  Ripley, 
13  Allen  (Mass.)  421;  erecting  a  permanent 
structure  which  renders  unfit  for  use  two 
rooms ;  Royce  v.  Guggenheim,  106  Mass.  201, 
8  Am.  Rep.  322;  refusal  to  do  an  act  indis- 
pensably necessary  to  enable  the  tenant  to 
carry  on  the  business  for  which  the  prem- 
ises were  leased :  as,  when  premises  were 
let  for  a  grog-shop,  the  landlord  refused  to 
sign  the  necessary  documents  required  by 
statute  to  enable  the  tenant  to  obtain  a  li- 
cense ;  Grabenhorst  v.  Nicodemus,  42  Md. 
236;  contra,  Kellogg  v.  Lowe,  38  Wash.  293, 
»0  Pac.  458,  70  t,.  R.  A.  510 ;  also  where  les- 
sor tears  down  an  adjoining  building,  mak- 
ing it  evident  that  lessee's  building  would 
fall;  Snow  v.  Pulitzer,  142  N.  Y.  263,  36  N. 
E.  1059.  And  when  a  landlord,  who  owned 
another  building  adjoining  that  occupied  by 
a  tenant,  the  two  being 'constructed  together, 
tore  the  former  down,  rendering  the  latter 
unsafe  for  occupancy,  and  then  procured  its 
condemnation  and  destruction  by  the  city 
authorities,  these  acts  constituted  an  evic- 
tion; Silber  v.  Larkin,  94  Wis.  9,  68  N.  W. 
406.  So  also  failure  to  furnish  elevator 
service  to  an  office  building;  McCall  v.  Ins. 
Co.,  201  Mass.  223,  87  N.  E.  582,  21  L.  R.  A. 
(N.  S.)  38;  Lawrence  v.  Marble  Co.,  1  Misc. 
105,  20  N.  Y.  Supp.  698;  Ess-Eff  Realty  Co. 
v.  Buttenheim,  125  N.  Y.  Supp.  401 ;  and  such 
failure  together  with  a  failure  to  heat  the 
premises;  Minneapolis  Co-Operative  Co.  v. 
|  Williamson,  51  Minn.  53,  52  N.  W.  986,  38 
Am.  St.  Rep.  473 ;  leasing  part  of  a  building 
to  an  automobile  company  whose  work  caus- 
ed vibrations,  to  the  disturbance  of  an  artist; 
Wade  v.  Herndl,  127  Wis.  544,  107  N.  W.  4, 
5  L.  R.  A.  (N.  S.)  855,  7  Ann.  Cas.  591;  rent- 
ing a  floor  to  lewd  and  disorderly  persons; 
Lay  v.  Bennett,  4  Colo.  App.  252,  35  Pac.  748 ; 
renting  a  lower  floor  for  a  laundry,  as 
against  a  florist  on  an  upper  floor;  Duff  v. 
Hart,  16  N.  Y.  Supp.  163 ;  or  for  a  noisy  and 
disorderly  saloon;  Halligan  v.  Wade,  21  111. 
470,  74  Am.  Dec.  108;  permitting  rats  and 
offensive  odors  in  a  part  of  a  building ;  Bar- 
nard Realty  Co.  v.  Bonwit,  155  App.  Div. 
182,  139  N.  Y.  Supp.  1050. 

But  a  mere  .failure  of  the  landlord  to  make 
repairs,   although    such    act  may   cause   the 


EVICTION 


1091 


TION" 


place  to  be  untenantable,  will  not  amount  to 
an  eviction;  Coddington  v.  Dunham,  35  N. 
Y.  Super.  Ct.  412;  Bussman  v.  Ganster,  72 
Pa.  285.  See  Alger  v.  Kennedy,  49  Vt.  109, 
24  Am.  Rep.  117.  Nor  the  presence  of  ver- 
min; Jacobs  v.  Morand,  59  Misc.  200,  110 
N.  Y.  Supp.  208.  If  the  objectionable  acts 
are  done  on  an  adjoining  property  it  is  not 
eviction;  Solomon  v.  Fantozzi,  43  Misc.  81, 
86  N.  Y.  Supp.  754;  Kellogg  v.  Lowe,  38 
Wash.  293,  80  Pac.  458,  70  L.  R.  A.  510; 
Gray  v.  Gaff,  8  Mo.  App.  329. 

The  doctrine  of  constructive  eviction 
amounts  only  to  a  right  to  abandon  the 
premises;  it  is  not  a  defence  against  an  ac- 
tion for  rent  when  the  tenant  waives  the 
eviction  and  remains  in  possession ;  Edger- 
ton  v.  Page,  20  N.  Y.  281. 

The  ownership  of  adjacent  premises,  and 
the  doing  of  an  act,  solely  as  owner  of  such 
premises,  which  injures  a  tenant's  use  of  his 
land,  do  not  infringe  a  right  of  the  tenant 
and  will  not  amount  to  a  constructive  evic- 
tion; Palmer  v.  Wetmore,  2  Saudf.  (N.  Y.) 
31G;  Solomon  v.  Fantozzi,  43  Misc.  61,  86  N. 
Y.  Supp.  754;  Kellogg  v.  Lowe,  38  Wash. 
293,  80  Pac.  458,  70  L.  R.  A.  510;  Gray  v. 
Gaff,  8  Mo.  App.  329. 

The  remedy  for  an  eviction  depends  chief- 
ly upon  the  covenants  in  the  deed  under 
which  the  party  held.  When  the  grantee 
suffers  a  total  eviction,  if  he  has  a  covenant 
of  seisin  or  for  quiet  enjoyment,  he  recovers 
from  the  grantor  the  consideration-money 
which  he  paid  for  the  land,  with  interest, 
and  not  the  enhanced  value  of  the  premises, 
whether  such  value  has  been  created  by  the 
expenditure  of  money  in  Improvements  there- 
on, or  by  any  other  more  general  cause; 
Kinney  v.  Watts,  14  Wend.  (N.  Y.)  38;  Mar- 
ston  v.  Hobbs,  2  Mass.  433,  3  Am.  Dec.  61. 
And  this  seems  to  be  the  general  rule;  Ben- 
net  v.  Jenkins,  13  Johns.  (N.  Y.)  50;  Bender 
v.  Fromberger,  4  Dall.  (U.  S.)  441,  1  L.  Ed. 
898;  Talbot  v.  Bedford's  Heirs,  Cooke 
(Tenn.)  447;  Lowtber  v.  Com.,  1  Hen.  &  M. 
(  Va.i  202;  Stewart  v.  Drake,  9  N.  J.  L.  139; 
Cox's  Heirs  v.  Strode,  2  Bibb  (Ky.)  273,  5 
Am.  Dec.  603. 

With  respect  to  a  lessee,  however,  who 
pays  no  purchase-money,  the  rule  of  dam- 
ages upon  an  eviction  is  different;  for  he 
recovers  nothing,  except  such  expenses  as 
he  has  beeD  put  to  in  defending  his  posses- 
sion; and  as  to  any  Improvements  he  may 
have  made  upon  the  premises,  he  stands  up- 
on the  same  general  footing  with  a  purchas- 
er. The  rents  reserved  in  a  lease,  where  no 
other  consideration  is  paid,  are  regarded  as 
a  just  equivalent  for  the  use  of  the  demised 
premises.  Upon  an  eviction  the  rent  - 
and  the  lessee  is  thereby  relieved  from  a 
burden  which  must  be  deemed  equal  to  the 
benefit  he  would  have  derived  from  the  con- 
tinued enjoyment  of  the  property;  Kelly  v. 
Dutch  Church,  2  Dill  (N.  Y.)  105;  The  Rich- 
mond v.  Cake,  1  App.  D.  C.  447;  Holmes  v. 


Guion,  44  Mo.  164;  Alger  v.  Kenned;..  19  Vt. 
109,  24  Am.  Rep.  117;  McClurg  v.  Price,  59 
Pa.  420,  98  Am.  Dec.  356;  Leadbeater  v. 
Roth,  25  111.  5S7.  It  is  no  defence,  ho? 
to  an  action  for  rent  which  was  due  at  the 
time  of  the  eviction ;  Johnson  v.  Barg,  8 
Misc.  307,  28  N.   Y.   Supp.   728. 

When  the  eviction  is  only  partial,  the  dam- 
ages to  be  recovered  under  the  co 
seisin  are  a  ratable  part  of  the  original  price, 
and  they  are  to  bear  the  same  r. 
whole    consideration   that   the    value   nf    the 
land   to  which   the  title  has   i  re   to 

the  value  of  the  whole  tract.  Th- 
is not  rescinded,  so  as  to  entitle  the  \ 
to  the  whole  consideration-money,  but  only 
to  the  amount  of  the  relative  value  nf  the 
part  lost;  Guthrie  v.  PugBley,  1-  Johns.  (N. 
Y.i  126;  -1  Kent  462.  See  6  Bac.  Abr.  44;  1 
Saund,  204,  322a;  Colburn  v.  Merrill.  117 
-iV2,  ]'.)  Am.  Rep.  -11.");  Tunis  v.  C  randy, 
•J2  Gratt  i  Va.i  109;  Hunter  v.  Reiley,  4:!  N. 
J.  L.  4S0;  Home  Life  Ins.  Co.  v.  Sherman.  46 
N.  Y.  370.     See  Measube  of  Damages. 

EVIDENCE.  That  which  tends  to  prove 
or  disprove  any  matter  in  question,  or  to  in- 
fluence the  belief  n  g  it.  Belief  is 
produced  by  the  consideration  of  some 
presented  to  the  mind.  The  matter  thus  pre- 
sented, in  whatever  shape  it  may  come,  and 
through  whatever  material  organ  it  is  de- 
rived, is  evidence.  Prof.  Parke*,  Lectures  on 
Medical  Jurisprudence,  id  Dartmouth  Col- 
lege. 

The  word  evidence,  in  legal  acceptation, 
includes  all  the  means  by  which  any  alleged 
matter  of  fact,  the  truth  of  which  is  submit- 
ted to  investigation,  is  established  or  dis- 
proved. 1  Greenl.  Ev.  c.  I.  §  1 ;  Will,  Cir.  Ev. 
1.  Testimony  is  not  synonymous  with  evi- 
dence; Harvey  v.  Smith.  17  Ind.  1272;  the 
latter  is  the  more  comprehensive  term; 
Whart  Cr.  L.  §  7s" :  and  includes  all  that 
may  be  submitted  to  the  jury  whether  it  be 
the  statement  of   witnesses,  or  the  contents 

of  papers,   documents,   or   r ids,   or  the  in- 

on  of  whatever  the  jury  may  he  per- 
mitted to  examine  and  consider  during  the 
trial;  Will,  Cir.  Ev.  2;  Jones  v.  Gregory,  4S 
111.  App.  230. 

The   means  sanctioned   by    law   of 
taining  in  a  Judicial  proceeding  the  truth  re- 
ig  a  question  of  fact.    CaL  Code  Civ. 
Proc.    §    1823.      And    the   law   of   evid- 
declared  to  be  a  collection  of  general  rules 
established  by  law  : 

1.  For  declaring  what  Is  to  be  taken  as 
true  without  pi 

2.  For  declaring  the  presumptions  of  law. 
both  disputabh  inclusive. 

3.  For  the  production  of  legal  evidei 

4.  For  the  exclusion  of  what  is  not 

5.  For  determining  in  certain  cases  the 
value  and  effect  of  evidence.     Id.  i   1825. 

"The  rules  of  evidence."  says  a  discrimi- 
nating  writer,    "are    the  maxims   which    tb« 


EVIDENCE 


1092 


EVIDENCE 


sagacity  and  experience  of  ages  have  estab- 
lished, as  the  best  means  of  discriminating 
truth  from  error,  and  of  contracting  as  far 
as  possible  the  dangerous  power  of  judicial 
discretion."     Will,  Cir.  Ev.  2. 

That  wbich  is  legally  submitted  to  a  jury, 
to  enable  them  to  decide  upon  the  questions 
in  dispute,  or  issue,  as  pointed  out  by  the 
pleadings,  and  distinguisbed  from  all  com- 
ment and  argument,  is  termed  evidence.  1 
Stark.  Ev.  pt.  1,  §  3. 

Evidence  may  be  considered  with  refer- 
ence to  its  instruments,  its  nature,  its  legal 
character,  its  effect,  its  object,  and  the  modes 
of  its  introduction. 

The  instruments  of  evidence,  in  the  legal 
acceptation  of  the  term,  are: 

1.  Judicial  notice  or  recognition.  There 
are  divers  things  of  which  courts  take  ju- 
dicial notice,  without  the  introduction  of 
proof  by  the  parties :  such  as  the  territorial 
extent  of  their  jurisdiction,  local  divisions 
of  their  own  countries,  seats  of  courts,  all 
public  matters  directly  concerning  the  gen- 
eral government,  the  ordinary  course  of  na- 
ture, divisions  of  time,  the  meanings  of 
words,  and,  generally,  of  whatever  ought  to 
be  generally  known  in  the  jurisdiction.  If 
the  judge  needs  information  on  subjects,  he 
will  seek  it  from  such  sources  as  he  deems 
uuthentic.     See  Judicial  Notice. 

2.  Public  records;  the  registers  of  official 
transactions  made  by  officers  appointed  for 
the  purpose ;  as,  the  public  statutes,  the  judg- 
ments and  proceedings  of  courts,  etc. 

3.  Judicial  writings:  such  as  inquisitions, 
depositions,  etc. 

4.  Public  documents  having  a  semi-official 
character:  as,  the  statute-books  published 
under  the  authority  of  the  government,  doc- 
uments printed  by  the  authority  of  congress, 
etc. 

5.  Private  ucritings:  as,  deeds,  contracts, 
wills. 

6.  Testimony  of  witnesses. 

7.  Personal  inspection,  by  the  jury  or  tri- 
bunal whose  duty  it  is  to  determine  the 
matter  in  controversy:  as,  a  view  of  the 
locality  by  the  jury,  to  enable  them  to  de- 
termine the  disputed  fact,  or  the  better  to 
understand  the  testimony,  or  inspection  of 
any  machine  or  weapon  which  is  produced 
in  the  cause. 

Real  evidence  is  evidence  of  the  thing  or 
object  which  is  produced  in  court.  When, 
for  instance,  the  condition  or  appearance  of 
any  thing  or  object  is  material  to  the  issue, 
and  the  thing  or  object  itself  is  produced  in 
court  for  the  inspection  of  the  tribunal,  with 
proper  testimony  as  to  its  identity,  and,  if 
necessary,  to  show  that  it  has  existed  since 
the  time  at  which  the  issue  in  question  arose, 
this  object  or  thing  becomes  itself  "real  evi- 
dence" of  its  condition  or  appearance  at  the 
time  in  question.  1  Greenl.  Ev.  §  13  a,  note. 
For  a  full  discussion  of  this  species  of  evi- 


dence, see  Gaunt  v.  State,  50  N.  J.  L.  491, 
14  Atl.  600. 

There  are  rules  prescribing  the  limits  and 
regulating  the  use  of  these  different  instru- 
ments of  evidence,  appropriate  to  each  class. 
In  its  nature,  evidence  is  direct,  or  pre- 
sumptive, or  circumstantial. 

Direct  evidence  is  that  means  of  proof 
which  tends  to  show  the  existence  of  a  fact 
in  question,  without  the  intervention  of  the 
proof  of  any  other  fact. 

It  is  that  evidence  which,  if  believed,  es- 
tablishes the  truth  of  a  fact  in  issue,  and 
does  not  arise  from  any  presumption.  Evi- 
dence is  direct  and  positive  when  the  very 
facts  in  dispute  are  sworn  to  by  those  who 
have  the  actual  knowledge  of  them  by  means 
of  their  senses.  1  Stark.  Ev.  19;  Tayl.  Ev. 
84.  In  one  sense,  there  is  but  little  direct 
or  positive  proof,  or  such  proof  as  is  acquir- 
ed by  means  of  one's  own  sense;  all  other 
evidence  is  presumptive ;  but,  in  common  ac- 
ceptation, direct  and  positive  evidence  is 
that  which  is  communicated  by  one  who  has 
actual  knowledge  of  the  fact. 

Extrinsic  evidence  is  external  evidence,  or 
that  which  is  not  contained  in  the  body  of 
an  agreement,  contract,  and  the  like. 

It  is  a  general  rule  that  extrinsic  evidence 
cannot  be  admitted  to  contradict,  explain, 
vary,  or  change  the  terms  of  a  contract  or 
of  a  will,  except  in  a  latent  ambiguity,  or 
to  rebut  a  resulting  trust;  Mann  v.  Mann, 
14  Johns.  (N.  Y.)  1,  7  Am.  Dec.  416;  Spald- 
ing v.  Huntington,  1  Day  (Conn.)  8.  Ex- 
cepting where  evidence  is  admissible  to  vary 
a  written  contract  on  the  ground  that  it  does 
not  represent  the  actual  contract  between 
the  parties.  See  Wigram,  Extrinsic  Evi- 
dence; 14  L.  R.  A.  459,  note. 

Presumptive  evidence  is  that  which  shows 
the  existence  of  one  fact,  by  proof  of  the 
existence  of  another  or  others,  from  which 
the  first  may  be  inferred;  because  the  fact 
or  facts  shown  have  a  legitimate  tendency 
to  lead  the  mind  to  the  conclusion  that  the 
fact  exists  which  is  sought  to  be  proved. 

Presumptive  evidence  has  been  divided 
into  presumptions  of  law  and  presumptions 
of  fact. 

Presumptions  of  law,  adopted  from  mo- 
tives of  public  policy,  are  those  which  arise 
in  certain  eases  by  force  of  the  rules  of  law, 
directing  an  inference  to  be  drawn  from 
proof  of  the  existence  of  a  particular  fact 
or  facts.  They  may  be  conclusive  or  in- 
conclusive. 

Conclusive  presumptions  are  those  which 
admit  of  no  averment  or  proof  to  the  con- 
trary. Thus,  the  records  of  a  court,  except 
in  some  proceeding  to  amend  them,  are  con- 
clusive evidence  of  the  matter  there  record- 
ed, being  presumed  to  be  rightly  made  up. 

Inconclusive  or  disputable  presumptions 
of  law  are  those  where  a  fact  is  presumed 
to  exist,  either  from  the  general  experience 


EVIDENCE 


1093 


EVIDENCE 


of  mankind,  or  from  policy,  or  from  proof 
of  the  existence  of  certain  other  facts,  until 
something  is  offered  to  show  the  contrary. 
Thus,  the  law  presumes  a  man  to  be  sane 
until  the  contrary  appears,  and  to  be  inno- 
cent of  the  commission  of  a  crime  until  he 
is  proved  to  be  guilty.  So,  the  existence 
of  a  person,  or  of  a  particular  state  of  things, 
being  shown,  the  law  presumes  the  person  or 
state  of  things  to  continue  until  something 
is  offered  to  conflict  with  the  presumption. 
See  Best,  Presumption,  ch.  ii. 

But  the  presumption  of  life  may  be  rebut- 
ted by  another  presumption.  Where  a  party 
has  been  absent  from  his  place  of  residence 
for  the  term  of  seven  years,  without  having 
been  heard  of,  this  raises  a  presumption  of 
his  death,  until  it  is  encountered  by  some  ev- 
idence showing  that  he  is  actually  alive,  or 
was  so  within  that  period. 

Presumptions  of  fact  are  not  the  subject 
of  fixed  rules,  but  are  merely  natural  pre- 
sumptions, such  as  appear,  from  common 
experience,  to  arise  from  the  particular  cir- 
cumstances of  any  case.  Some  of  these  are 
"founded  upon  a  knowledge  of  the  human 
character,  and  of  the  motives,  passions,  and 
feelings  by  which  the  mind  is  usually  influ- 
enced."    1  Stark.  Ev.  27. 

They  may  be  said  to  be  the  conclusions 
drawn  by  the  mind  from  the  natural  con- 
nection of  the  circumstances  disclosed  in 
each  case,  or.  in  other  words,  from  circum- 
stantial evidence. 

Circumstantial  evidence  is  the  proof  of 
facts  which  usually  attend  other  facts  sought 
to  be  proved ;  that  which  is  not  direct  evi- 
dence. For  example,  when  a  witness  testi- 
fies that  a  man  was  stabbed  with  a  knife, 
and  that  a  piece  of  the  blade  was  found  in 
the  wound,  and  it  is  found  to  fit  exactly  with 
another  part  of  the  blade  found  in  the  pos- 
session of  the  prisoner,  the  facts  are  direct- 
ly attested,  but  they  only  prove  circumstanc- 
es; and  hence  this  is  called  circumstantial 
evidence. 

Circumstantial  evidence  is  of  two  kinds, 
namely,  certain  and  uncertain.  It  is  certain 
when  the  conclusion  in  question  necessarily 
follows :  as,  where  a  man  had  received  a 
mortal  wound,  and  it  was  found  I  hat  the  im- 
pression of  a  bloody  left  hand  had  been  made 
on  the  left  arm  of  the  deceased,  it  was  cer- 
tain some  other  person  than  the  deceased 
must  have  made  such  mark  ;  14  How.  St.  Tr. 
1334.  But  it  is  uncertain  whether  the  death 
was  caused  by  suicide  or  by  murder,  and 
whether  the  mark  of  the  bloody  hand  was 
made  Jay  the  assassin,  or  by  a  friendly  hand 
that  came  too  late  to  the  relief  of  the  de- 
ceased. 

Circumstantial  evidence  warrants  a  convic- 
tion in  a  criminal  case,  provided  it  is  such 
as  to  exclude  every  reasonable  hypothesis 
but  that  of  guilt  of  the  offence  charged  to 
the  defendant,  but  it  must  always  rise  to  that 
degree  of  convincing  power  which  satisfies  the 


mind  beyond  reasonable  doubt  of  guilt    This 
can  never  be  the  case  when  the  evidence,  as 
produced,  is  entirely  consistent  with  innocence 
in  a  given  transaction;   Hayes  v.   T".  s..   169 
Fed.  101,  94  C.  C.  A.  1 19.     When  the  evidence 
can  be  reconciled  either  with  the  theory  ol 
innocence  or  of  guilt,  the  law  requires  that 
the    defendant   be   given    the  benefit   of   the 
donbt  and   that  the  theory  of,  innocence  be 
adopted;   Vernon  v.  D.   S.,   146   Fed.   ' 
C.  C.  A.  547,  citing  People  v.  Ward,  lCf 
335,  38  Pac.  945;   Asbach   v.  By.  Co.,  74  la. 
248,  37  N.  W.  182;  Smith  v.  Bank,  99 
G05,  97  Am.  Dec.  59.     It  is  not  a  question  of 
the  weakest  link  of  a  chain,  but  the  weakest 
strand  of  a  rope  cable;   Ex  parte  Haj 
Old.  Cr.  321,  118  Pac.  G09. 

While  it  has  thus  been  contended  that,  in 
order  to  justify  the  inference  of  legal  guilt 
from  circumstantial  evidence,  the  existence 
of  the  inculpatory  facts  must  be  absolutely 
incompatible  with  the  innocence  of  the  ac- 
cused; Wills,  Cir.  Ev.  300;  Stark.  Ev.  160;  1 
Crim.  L.  Mag.  234;  State  v.  Miller.  9  Houst 
(Del.)  564,  32  Atl.  137;  other  writers  have 
held  that  the  distinction  between  this  species 
of  evidence  and  that  which  is  direct  is  mere- 
ly one  of  logic,  and  of  no  practical  signlfi- 
cance ;  that  all  evidence  is  more  or  less  cir- 
cumstantial; all  statements  of  witnesses,  all 
conclusions  of  juries,  are  the  results  of  in- 
ference; or  as  it  was  expressed  by  Gibson, 
C.  J.,  "the  difference  being  only  in  degree:" 
Com.  v.  Harman,  4  Pa.  269.  See  U.  S.  v. 
Gibert,  2  Sunin.  27,  Fed.  Cas.  No.  15,204; 
Com.  v.  Harman.  4  Pa.  269;  Whart  Cr.  Ev. 
§  10.  Even  in  its  strictest  sense,  circumstan 
tial  evidence  is  legal  evidence,  and  when 
it  is  satisfactory  beyond  reasonable  doubt,  a 
jury  is  bound  to  act  upon  it  as  if  it  were  the 
most  direct;  1  Greenl.  Ev.  §  13;  3  Rice,  Ev. 
544.     See  Circumstances;    Evidence. 

Circumstantial  evidence  is  sometimes  used 
as  synonymous  with  presumptive  evidence, 
but  not  with  strict  accuracy:  for  presump- 
tive evidence  is  not  necessarily  and  in  all 
cases  what  is  usually  understood  by  circum- 
stantial evidence.  The  latter  is  that  evi- 
dence which  tends  to  prove  a  disputed  fad 
by  proof  of  other  facts  which  have  a  legiti- 
mate tendency,  from  the  laws  of  nature,  the 
usual  connection  of  things,  and  the  ordinary 
transactions  of  business,  etc.,  to  lead  the 
mind  to  a  conclusion  that  the  fact  exists 
which  is  sought  to  be  established.  See  l 
Stark.  Ev.   ITS:    Whart.  Ev.  1,  'J.  15. 

A  writer  on  this  subject  already  quoted, 
thus  states  the  distinction:  the  word  pre- 
sumption, em  1 1  termini,  imports  an  inference 
from  facts  known,  based  upon  previous  ex- 
perience of  the  ordinary  connection  between 
the  two,  and.  the  word  itself  implies  a  cer- 
tain relation  between  fact  and  inference. 
Circumstances,  however,  generally  but  not 
irily  lead  to  particular  inferences;  for 
the  facts  may  he  indisputable,  and  yet  their 
relation  to   the  principal   fact  may    be  only 


EVIDENCE 


1094 


EVIDENCE 


apparent,  not  real ;  and  even  where  the  con- 
nection is  real,  the  deduction  may  be  errone- 
ous. Circumstantial  and  presumptive  evi- 
dence differ  therefore  as  genus  and  species. 
Will,  Cir.  Ev.  17. 

Presumptive  evidence  may  sometimes  be 
the  result,  to  some  extent,  of  any  arbitrary 
rule— as  in  the  case  of  the  presumption  of 
death  after  an  absence  of  seven  years  with- 
out being  heard  of— derived  by  analogy  from 
certain  statutes. 

The  judge  and  the  jury  draw  cbnclusions 
from  circumstantial  evidence,  and  find  one 
fact  from  the  existence  of  other  facts  shown 
to  them,— some  of  the  presumptions  being 
so  clear  and  certain  that  they  have  become 
fixed  as  rules  of  law,  and  others  having 
greater  or  less  weight  according  to  the  cir- 
cumstances of  the  case,  leaving  the  matter 
of  fact  inquired  about  in  doubt  until  the 
proper  tribunal  to  determine  the  question 
draws  the  conclusion. 

In  its  legal  character,  evidence  is  primary 
or  secondary,  and  prima  facie  or  conclusive. 
Primary  evidence  is  the  best  evidence,  or 
that  proof  which  most  certainly  exhibits  the 
true  state  of  facts  to  which  it  relates.  The 
law  requires  this,  and  rejects  secondary  or 
inferior  evidence  when  it  is  attempted  to  be 
substituted  for  evidence  of  a  higher  or  su- 
perior nature.  For  example,  when  a  written 
contract  has  been  entered  into,  and  the  ob- 
ject is  to  prove  what  it  was,  it  is  requisite 
to  produce  the  original  writing,  if  it  is  to  be 
attained ;  and  in  that  case  no  copy  or  other 
inferior, evidence  will  be  received. 

This  is  a  rule  of  ^policy,  grounded  upon  a 
reasonable  suspicion  that  the  substitution  of 
inferior  for  better  evidence  arises  from  sin- 
ister motives,  and  an  apprehension  that  the 
best  evidence,   if  produced  would   alter  the 
case  to  the  prejudice  of  the  party.    This  rule 
relates  not  to  the  measure  and  quantity  of 
evidence,  but  to  its  quality  when  compared 
with  some  other  evidence  of  superior  degree. 
To  this  general  rule  there  are  several  ex- 
ceptions.     1.  As    it    refers    to    the    quality 
rather  than  to  the  quantity  of  evidence,  it 
is  evident  that  the  fullest  proof  that  every 
case  admits  of  is  not  requisite  :    if,  therefore, 
there  are  several  eye-witnesses  to  a  fact,  it 
may  be  sufficiently  proved  by  one  only.     2. 
It  is  not  always  requisite,  when  the  matter 
to  be  proved  has  been   reduced  to  writing, 
that  the  writing  should  be  produced :    as,  if 
the  narrative  of  a  fact  to  be  proved  has  been 
committed  to  writing,  it  may  yet  be  proved 
by  parol  evidence.     A   receipt  for  the  pay- 
ment of  money,   for   example,   will   not   ex- 
clude  parol    evidence    of    payment;     4    Esp. 
213.     And  see  3   B.  &  Aid.   566;    Meade  v. 
Keane,  3  Cra.  C.  C.  51,  Fed.  Cas.  No.  9,373 ; 
Bonesteel  v.  Gardner,  1  Dak.  372,  46  N.  W. 
590 ;    Chapin  v.  Dobson,  78  N.  Y.  82,  34  Am. 
Rep.   512.     The   evidence    of   a   father   and 
mother,   cognizant   of  their  child's   birth,   is 
primary  evidence  of  its  date  or  the  age  of 


the  child,  although  there  is  a  written  record 
thereof  in  the  family  Bible ;  State  v.  Woods, 
49  Kan.  237,  30  PsTc.  520;  Hawkins  v.  Taylor, 
1  McCord  (S.  C.)  164;  Hermann  v.  State,  73 
Wis.  248,  41  N.  W.  171,  9  Am.  St.  Rep.  789. 
A  stenographer's  notes  of  the  testimony  of  a 
witness  are  not  the  best  evidence  of  such 
testimony,  so  as  to  prevent  any  other  person 
who  was  present  from  testifying  in  relation 
thereto;  Brice  v.  Miller,  35  S.  C.  537,  15  S. 
E.  272;  Nasanowitz  v.  Hanf,  17  Misc.  157, 
39  N.  Y.  Supp.  327.  Documentary  evidence 
is  not  the  best  evidence  of  marriage ;  People 
v.  Perriman,  72  Mich.  184,  40  N.  W.  425. 
Oral  admissions  of  a  party  against  himself 
as  to  the  contents  of  a  writing  are  primary 
evidence;  Morey  v.  Hoyt,  62  Conn.  542,  26 
Atl.  127,  19  L.  R.  A.  611. 

Secondary  evidence  is  that  species  of  proof 
which  is  admissible  when  the  primary  evi- 
dence cannot  be  produced,  and  which  be- 
comes by  that  event  the  best  evidence  that 
can  be  adduced.  Armstrong's  Lessee  v.  Mor- 
gan, 3  Yeates  (Pa.)  530. 

But  before  such  evidence  can  be  allowed 
it  must  be  clearly  made  to  appear  that  the 
superior  evidence  is  not  to  be  had;    Phillips 
v.  O'Neal,  87  Ga.  727,  13  S.  E.  819 ;   Curtis  v. 
Wilcox,   91  Mich.   229,   51   N.    W.  992.     The 
person  who  possesses  it  must  be  a'pplied  to, 
whether   he   be   a  stranger   or   the  opposite 
party :     in  the  case  of  a  stranger,  a  subpoena 
and  attachment,  when  proper,  must  be  taken 
out  and  served ;   and  in  the  case  of  a  party, 
notice    to    produce    such    primary    evidence 
must   be   proved   before   the   secondary   evi- 
dence will  be  admitted;    Patton's  Adm'rs  v. 
Ash,  7  S.  &  R.   (Pa.)    116;    3  B.  &  Aid.  296; 
Susquehanna  &  W.  V.  R.  &  Coal  Co.  v.  Quick, 
61  Pa.  328;    Gallagher  v.  Assur.  Corp.,  149 
Pa.   25,   24   Atl.    115;    King   Optical   Co.   v. 
Treat,  72  Mich.  599,  40  N.  W.  912;    7  Exch. 
639;    Louisville  &  N.  R.  Co.  v.  Orr,  94  Ala. 
602,    10   South.   167;    De   Barie  v.   Pardo,  6 
Sadler  (Pa.)  148,  8  Atl.  876,  where  this  rule 
is   discussed  at  large  by  Arnold,   J.,  whose 
views  were  affirmed  without  an  opinion.    "If 
there  are  several  sources  of  information  of 
the  same  fact,  it  is  not  ordinarily  necessary 
to  show  that  all  have  been  exhausted  before 
secondary    evidence    can    be    resorted    to." 
Smith  v.  Brown,  151  Mass.  338,  24  N.  E.  31. 
See   Kleimann   v.   Geiselmann,   45   Mo.   App. 
497;    McCormick  v.  Anderson,  83  Ala.  401,  3 
South.  796 ;   McClure  v.  Campbell,  25  Neb.  57, 
40   N.   W.   595.     Secondary  evidence  of  the 
contents  of  a  written  contract  is  inadmissi- 
ble in  the  absence  of  proper  diligence  to  se- 
cure the  original ;    Low  v.  Tandy,   70  Tex. 
745,  8  S.  W.  620;    Whaun  &  Co.  v.  Atkinson, 
84  Ala.  592,  4  South.  681.     After  proof  of  the 
due  execution  of  the  original,   the  contents 
should  be  proved  by  a  counterpart,  if  there 
be  one,   for  this  is  the  next  best  evidence; 
and  it  seems  that  no  evidence  of  a  copy  is 
admissible  until  proof  has  been  given  that 
the  counterpart  cannot  be  proddced ;  6  Term 


EVIDENCE 


1095 


EVIDENCE 


23G.  If  there  be  no  counterpart,  a  copy  may 
be  proved  in  evidence  by  any  witness  who 
knows  tbat  it  is  a  copy,  from  having  com- 
pared it  with  the  original;  Meyer  v.  Barker, 
G  Binn.  (Pa.)  2:H ;  Buttrick  v.  Allen,  8  Mass. 
273,  5  Am.  Dec.  105.  If  regularly  recorded, 
an  office  copy  may  be  given  in  evidence.  If 
there  be  no  copy,  the  party  may  produce  an 
abstract,  or  even  give  parol  evidence  of  the 
contents  of  a  deed;  6  Term  55G.  A  tran- 
scribed telegraphic  message  which  is  actually 
delivered  is  primary  evidence,  and  if  lost  or 
destroyed  its  contents  may  be  proved  by 
parol;  Magie  v.  Herman,  50  Minn.  424,  52  N. 
W.  909,  36  Am.  St.  Rep.  GGO.  See  Terre 
Haute  &  I.  R.  Co.  v.  Stockwell,  US  Ind.  98, 
20  N.  E.  650;  Anheuser-Busch  Brewing  Co. 
v.  Hutmacher,  127  ill.  <<~r2.  21  N.  E.  626,  4 
L.  K.  A.  575.  Letterpress  copies  of  writings 
are  secondary  evidence;  Thompson-Houston 
Electric  Co.  v.  Berg,  10  Tex.  Civ.  App.  200, 
30  S.  W.  454  ;  and  where  there  were  sucb, 
next  to  the  originals,  they  were  the  best  evi- 
dence and  oral  evidence  should  have  been  re- 
jected; Ford  v.  Cunningham,  S7  Cal.  209,  25 
Pac.  403 ;  and  as  to  copies  of  documents 
made  by  mechanical  means,  as  originals,  see 
12  L.  R.  A.  (N.  S.)   343,  note. 

If  books  or  papers  necessary  as  evidence 
in  the  courts  of  one  state  be  in  the  posses- 
sion of  a  person  living  in  another  state, 
secondary  evidence  without  further  show- 
ing may  be  given  to  prove  the  contents  of 
such  papers,  and  notice  to  produce  them  is 
unnecessary;  Burton  v.  Driggs,  20  Wall.  (U. 
S.)  125,  22  L.  Ed.  299.  See  Thomson-Hous- 
ton Electric  Co.  v.  Palmer,  52  Minn.  174,  53 
N.  W.  1137,  38  Am.  St.  Rep.  53G.  Where  the 
attesting  witness  to  a  deed  lives  out  of  the 
state,  secondary  evidence  of  its  execution  is 
admissible ;  Trustees  of  Smith  Charities  v. 
Connolly,  157  Mass.  272,  31  N.  E.  1058. 

It  has  been  decided  in  England  that  there 
are  no  degrees  in  secondary  evidence;  and 
when  a  party  has  laid  the  foundation  for 
such  evidence,  he  may  prove  the  contents 
of  a  deed  by  parol,  although  it  appear  that 
an  attested  copy  is  in  existence ;  6  C.  &  P. 
206;  8  id.  389;  7  M.  &  W.  102.  It  is  urged 
on  the  one  hand  that  the  rule  requiring  the 
best  evidence  has  reference  to  its  nature,  not 
to  its  strength,  and  the  argument  ub  incon- 
venient i  is  invoked  against  the  extension  of 
the  rule  recognizing  degrees.  On  the  other 
hand  it  is  contended  that  such  an  extension 
is  an  equitable  one  and  rests  on  the  same 
principle  which  forbids  the  introduction  of 
any  secondary  evidence  while  the  primary 
is  available.  English  cases  cited  in  favor 
of  the  recognition  of  degrees  arc  said  to  be 
not  so  much  decisions  of  the  point  as  dicta, 
as  they  refer  to  it  as  a  rule  existing  but  not 
involved  in  the  case;  2  Atk.  71 ;  1  Nev.  & 
Per.  8.  But  in  the  latter  case  the  rule  is 
doubted,  and  in  G  C.  &  P.  359  impliedly  de- 
nied by  Patteson,  J.,  as  it  is  also  by  Parke. 
J. ;   G  C.  &  P.  81 ;   id.  200.    See  8  Dowl.  3S9 ; 


3  Scott,  N.  R.  o77.  The  question  is  not  set- 
tled in  the  United  States;  Greenl.  Ev.  §  84, 
note;  and  the  United  states  Supreme  Court, 
declining  to  adopt  the  English  rule  without 
qualification,  observe  that  the  secondary  evi- 
"must  be  the  best  the  party  has  in  his 
power  to  produce"  and  also  that  the  rule  of 
exclusion  or  admission  must  be  so  applii 
to  promote  the  ends  of  Justice,  and  guard 
against  fraud,  surprise,  and  In 
nett  v.  Williams,  'Jo  Wall.    (1  .  22  L. 

Ed.  254.  This  doctrine  was  followed  in 
Johnson  v.  Arnwine,  42  N.  J.  L.  458,  86  'Am. 
Pep.  532;  Jaques  v.  Borton,  76  Ala.  246. 
See  Kentzler  v.  Kentzler,  o  Wash.  I 
Pac.  370,  28  Am.  St  Rep.  lm  :  I  irida  Cent. 
&  P.  R.  Co.  v.  Buckii  68  Fed.  864,  16  C.  0.  A. 
42.  The  American  doctrine  seems  to  be  "that 
if  from  the  nature  of  the  case  itself  it  is 
manifest  that  a  more  satisfactory  kind  of 
secondary  evidence  exists,  the  party  will  be 
required  to  produce  It;  but  that  when  the 
nature  of  the  case  does  not  of  itself  disclose 
the  existence  of  such  better  eviden  <■.  the 
objector  must  not  only  prove  its  exist 
but  also  must  prove  that  it  was  known  to 
the  other  party  in  time  to  have  been  pro- 
duced at  the  trial;"  1  Gr.  Ev.  g  84,  note; 
Lewis  v.  San  Antonio,  7  Tex.  315;  Lane  v. 
Jones,  2  Cold.  (Tenn.)  321;  Harvey  v. 
Thorpe,  2S  Ala.  L'.V>.  <;:,  Am.  Dec.  :;il  ;  Gra- 
ham v.  Campbell,  •">';  Ga.  258;  Illinois  Land 
&  Loan  Co.  v.  Bonner,  75  111.  315;  Nason  v. 
Jordan,  62  Me.  480;  Winn  v.  Patterson,  9 
Pet    (U.  S.)   0G3,  9  L.  Ed.  -J';,;. 

Cases  holding  that  there  are  no  degn 
secondary  evidence  are  Goodrich  v.  Weston, 
102  Mass.  :;<■.-'.  "  Am.  Rep.  169;  Smith  v. 
Brown,  151  Mass.  338,  24  X.  E.  31;  Dra.  K. 
B.  U.  C.  357;  at  least  unless  it  appears  that 
there  is  better  evidence  than  is  offered  :  Es- 
low  v.  Mitchell,  2t;  Mich.  500.  Cases  holding 
that  there  are  such  degrees  are  Coman  v. 
State,  4  Blackf.  (Ind.)  211;  Cornet!  v.  Wil- 
liams, 20  Wall.  (U.  S.)  226,  22  L.  Ed.  254; 
Williams  v.  Waters,  36  Ga.  454,  where  if 
was  said  that  the  same  rule  applies  as  in  the 
case  of  primary  evidence;  Dillon  v.  Howe, 
98  Mich.  168,  57  N.  W.  102. 

Prima  facie  evidence  is  that  which  a\>- 
pears  to  be  sufficient  proof  respecting  the 
matter  in  question,  until  something  appears 
to  controvert  it.  hut  which  may  he  contra- 
dicted or  controlled. 

Conclusive  evidence  is  that  which,  while 
uncontradicted,  establishes  the  fact  :  as  in 
the  instance  of  conclusive  presumptions;  it 
is  also  that   which  cannot  he  contradit 

The  record  of  a  court  of  common  law  ju- 
risdiction is  conclusive  as  to  the  facts  there- 
in stated;  Shelton  v.  Barbour,  2  Wash. 
(Va.)  64;  Dennlson  v.  Hyde,  <'•  Conn.  508. 
But  the  judgment  and  record  of  a  prize-court 
is  not  conclusive  evidence  in  the  state  courts. 
unless  it  had  jurisdiction  of  the  subject-mat- 
ter; and  whether  it  had  or  not,  the  state 
courts   may   decide;    Slocum    v.    Wheeler,    1 


EVIDENCE 


1006 


EVIDENCE 


Conn.  429.  See,  as  to  the  conclusiveness  of 
the  judgments  of  foreign  courts  of  admiralty  ; 
Maley  v.  Shattuck,  3  Cra.  (U.  S.)  458,  2  L. 
Ed.  498;  Pollard  v.  Dwight,  4  Cra.  (U.  S.) 
421,  2  L.  Ed.  666;  Croudson  v.  Leonard,  4 
Cra.  (U.  S.)  434,  2  L.  Ed.  670;  Bourke  v. 
Granberry,  Gilm.  (Va.)  16,  9  Am.  Dec.  589; 
Groning  v.  Ins.  Co.,  1  Nott  &  McC.  (S.  C.) 
537. 

Evidence  may  be  conclusive  for  some  pur- 
poses but  not  for  others. 

Admissibility  of  evidence.  In  consider- 
ing the  legal  character  of  evidence,  we  are 
naturally  led  to  the  rules  which  regulate 
its  competency  and  admissibility,  although 
it  is  not  precisely  accurate  to  say  that  evi- 
dence is  in  its  legal  character  competent  or 
incompetent;  because  what  is  incompetent 
for  the  consideration  of  the  tribunal  wbich 
is  to  pronounce  the  decision  is  not,  strictly 
'  speaking,  evidence. 

But  the  terms  incompetent  evidence  and 
inadmissible  evidence  are  often  used  to  des- 
ignate what  is  not  to  be  heard  as  evidence : 
as,  witnesses  are  spoken  of  as  competent  or 
incompetent. 

The  admissibility  of  evidence  is  not  affect- 
ed by  the  fact  that  it  was  obtained  by  un- 
fair means ;  Williams  v.  State,  100  Ga.  511, 
28  S.  E.  624,  39  L.  R.  A.  269;  14  East  302; 
Com.  v.  Dana,  2  Mete.  (Mass.)  329;  1  Gr. 
Ev.  §  254a ;  as  when  illegally  seized  by  a 
public  official;  Starchman  v.  State,  62  Ark. 
538,  36  S.  W.  940:  State  v.  Flynn,  36  N.  H. 
64;  Com.  v.  Henderson,  140  Mass.  303,  5  N. 
E.  832 ;  or  a  private  detective ;  Gindrat  v. 
People,  138  111.  103,  27  N.  E.  1085;  or  sur- 
reptitiously taken  by  a  person  unknown ; 
Firth  Sterling  Steel  Co.  v.  Steel  Co.,  199  Fed. 
353.  But  evidence  was  held  to  be  inadmis- 
sible because  obtained  in  violation  of  rights 
secured  by  the  IVth  and  Vth  Amendments  of 
the  Constitution  either  by  production  under 
order  of  the  court;  Boyd  v.  U.  S.,  116  U.  S. 
616,  6  Sup.  Ct.  524,  29  L.  Ed.  746;  or  by 
means  of  an  illegal  search  by  a  custom  offi- 
cer; U.  S.  v.  Wong  Quong  Wong,  94  Fed. 
832.  In  criminal  cases  personal  property  is 
sometimes  introduced  in  evidence  as  bur- 
glar's tools,  appliances  used  in  counterfeit- 
ing, gaming  and  the  like.    See  Seabch. 

Evidence  of  experiments  to  throw  light 
upon  any  question  at  issue  is  admissible  or 
not,  largely  in  the  discretion  of  the  trial 
court.  Evidence  of  experiments  made  eight 
years  after  as  to  what  sound  could  be  heard 
through  a  wall,  to  show  that  a  certain  con- 
versation could  not  have  been  heard  througb 
it,  was  rejected ;  Dow  v.  Bulfinch,  192  Mass. 
281,  78  N.  E.  416. 

It  is  competent  on  a  second  trial  of  a  civil 
case  in  a  federal  court,  under  the  general 
rule,  to  prove  the  testimony  given  on  the 
former  trial  by  a  witness  who  has  since  died, 
there  being  no  federal  statute  on  the  subject ; 
Nome  Beach  Lighterage  &  Transp.  Co.  v. 
Ins.  Co.,  156  Fed.  4S4;    Mattox  v.  U.  S.,  156 


U.  S.  237,  15  Sup.  Ct.  337,  39  L.  Ed.  409;  it 
is  not  necessary  to  prove  the  precise  lan- 
guage of  the  deceased  witness,  but  only  to 
express  clearly  the  substance ;  Ruch  v.  Rock 
Island,  97  U.  S.  693,  24  L.  Ed.  1101 ;  and  in 
a  criminal  case  where  the  witness  was  dead 
and  had  been  cross-examined,  his  evidence 
was  held  admissible;  U.  S.  v.  Macomb,  5 
McLean  2S6,  Fed.  Cas.  No.  15,702 ;  Brown  v. 
Com.,  73  Pa.  326,  13  Am.  Rep.  740;  State  v. 
Able,  65  Mo.  371;  but  where  the  proof  was 
insufficient  to  connect  the  present  respondent 
with  the  defense  in  the  prior  suit,  the  dep- 
osition of  a  deceased  witness  was  held  inad- 
missible'; Rumford  Chemical  Works  v. 
Chemical  Co.,  154  Fed.  65,  83  C.  C.  A.  177. 
The  notes  of  testimony  on  a  former  trial  by 
deceased  and  absent  witnesses  are  admis- 
sible when  the  accuracy  of  the  copy  is  agreed 
to ;  Emerson  v.  Burnett,  11  Colo.  App.  86,  52 
Pac.  752;  or  admitted;  Chicago,  St.  P.  M. 
&  O.  R.  Co.  v.  Myers,  80  Fed.  365,  25  C.  C. 
A.  486 ;  but  not  when  there  is  no  proof  of 
accuracy  other  than  the  certificate  of  the 
stenographer ;  Williams  v.  Min.  Co.,  37  Colo. 
62,  86  Pac.  337,  7  L.  R.  A.  (N.  S.)  1170,  11 
Ann.  Cas.  111. 

As  the  common  law  excludes  certain  class- 
es of  persons  from  giving  testimony  in  par- 
ticular cases,  because  it  deems  their  exclu- 
sion conducive,  in  general,  to  the  discovery 
of  the  truth,  so  it  excludes  certain  materials 
and  statements  from  being  introduced  as 
testimony  in  a  cause,  for  a  similar  reason. 
Thus,  as  a  general  rule,  it  requires  witnesses 
to  speak  to  facts  within  their  own  knowl- 
edge, and  excludes  hearsay  evidence. 

Hearsay  is  the  evidence,  not  of  what  the 
witness  knows  himself,  but  of  what  he  has 
heard  from  others. 

It  is  the  general  rule  that  hearsay  is  in- 
admissible ;  Central  Pac.  R.  Co.  v.  Feldman, 
152  Cal.  303,  92  Pac.  849;  and  evidence 
which  appears  to  be  hearsay  should  be  ex- 
cluded ;  Moore  v.  Maxwell  &  Delhomme,  155 
Ala.  299,  46  South.  755 ;  so  also  facts  which 
the  witness  could  know  only  by  hearsay  are 
inadmissible.     See  Heaesay. 

Such  mere  recitals  or  assertions  cannot 
be  received  in  evidence  for  many  reasons, 
but  principally  for  the  following:  First, 
that  the  party  making  such  declarations  is 
not  on  oath ;  and,  secondly,  because  the  par- 
ty against  whom  it  operates  has  no  oppor- 
tunity of  cross-examination  ;  1  Phil.  Ev.  1S5. 
See,  for  other  reasons,  1  Stark.  Ev.  pt.  1,  p. 
44 ;  Tayl.  Ev.  508.  The  general  rule  exclud- 
ing hearsay  evidence  does  not  apply  to  those 
declarations  to  which  the  party  is  privy,  or 
to  admissions  which  he  himself  has  made. 

Many  facts,  from  their  very  nature,  either 
absolutely  or  usually  exclude  direct  evidence 
to  prove  thein,  being  such  as  are  either 
necessarily  or  usually  imperceptible  by  the 
senses,  and  therefore  incapable  of  the  ordi 
nary  means  of  proof.  These  are  questions 
of  pedigree   or  relationship,  character,  pre- 


EVIDENCE 


1097 


EVIDENCE 


scription,  custom,  boundary,  and  the  like;  as 
also  questions  which  depend  upon  the  exer- 
cise of  particular  skill  and  judgment.  Such 
facts,  some  from  their  nature,  and  others 
from  their  antiquity,  do  not  admit  of  the 
ordinary  and  direct  means  of  proof  by  living 
witnesses:  and,  consequently,  resort  must 
be  had  to  the  best  means  of  proof  which  the 
nature  of  the  case  affords.  The  rule  permit- 
ting a  resort  to  hearsay  evidence,  however, 
in  cases  of  pedigree  extends  only  to  the  ad- 
mission of  declarations  by  deceased  persons 
who  were  related  by  blood  or  marriage  to  the 
person  in  question,  and  not  to  declarations 
by  servants,  friends,  or  neighbors;  Flora  v. 
Anderson,  75  Fed.  217.  And  "general  reputa- 
tion in  the  family,"  which  is  admissible  in 
matters  of  pedigree,  or  to  establish  the  facts 
of  birth,  marriage,  or  death,  is  confined  to 
declarations  of  deceased  members  of  the 
family,  and  family  history  and  traditions 
handed  down  by  declarations  of  deceased 
members,  in  either  case  made  ante  litem 
motam,  and  originating  with  persons  pre- 
sumed to  have  competent  knowledge  of  the 
facts  stated ;  and  evidence  of  the  opinion  or 
belief  of  living  members  of  a  family  as  to 
the  death  of  another  member,  or  of  general 
reputation  among  a  person's  living  friends 
and  acquaintances  as  to  his  death,  is  not 
within  the  rule,  and  is  inadmissible;  In  re 
Hurlburt's  Estate,  G8  Vt  3(56,  35  Atl.  77,  35 
L.  R.  A.  794.  See  Boundary  ;  Custom  ;  Pedi- 
gree ;    Prescription. 

Admissions  are  the  declarations  which  a 
party  by  himself,  or  those  who  act  under 
his  authority,  make  of  the  existence  of  cer- 
tain facts.  But  where  an  admission  is  made 
the  foundation  of  a  claim,  the  whole  state- 
ment must  be  taken  together ;  Perkins  v. 
Lane,  S2  Va.  59.  See  Bryan  v.  Kelly,  85  Ala. 
509,  5  South.  34G ;    Admissions. 

A  statement  of  all  the  distinctions  between 
what  is  to  be  regarded  as  hearsay  and  what 
is  to  be  deemed  original  evidence  would  ex- 
tend this  article  too  far.  The  general  prin- 
ciple is  that  the  mere  declaration,  oral  or 
written,  of  a  third  person,  as  to  a  fact, 
standing  alone,  is  inadmissible. 

Res  gestw.  But  where  evidence  of  an 
act  done  by  a  party  is  admissible,  his  dec- 
larations made  at  the  time,  having  a  tend- 
ency to  elucidate  or  give  a  character  to  the 
act,  and  which  may  derive  a  degree  of  credit 
from  the  act  itself,  are  also  admissible,  as 
part  of  the  res  gestce;  Sessions  v.  Little,  9 
N.  H.  271 ;  Steph.  Dig.  Ev.  §§  2,  7.  See  Res 
Gestae. 

So,  declarations  of  third  persons,  in  the 
presence  and  hearing  of  a  person,  which 
tend  to  affect  his  interest,  may  be  shown  in 
order  to  introduce  his  answer  or  to  show  an 
admission  by  his  silence,  but  this  species 
of  evidence  must  be  received  with  great 
caution;    1  Greeril.  Ev.  230. 

Confessions  of  guilt  in  criminal  cases  come 
within  the  class  of  admissions,  provided  they 


have  been  voluntarily  made  and  have  not 
been  obtained  by  the  hope  of  favor  or  by  the 
fear  of  punishment.  And  if  made  under  such 
indu  :ement8  as  to  exclude  them,  a 
quent  declaration  to  the  same  effect,  made 
after  the   Inducement  ha  -rate, 

and   having  no  connection  with  the  ho] 
fears   which   have   existed,    is  admissible  as 
evidence;     State   v.    Howard,    17   N.    II.    171. 
Actions  as  well  as  verbal  declarations  may 
constitute  a   confession,    and    the   same    rule 
as  to  admissibility  applies  to  both;    State  \. 
Crowson,  98  N.  C  595,  -4  S.  C.  143.     Th< 
however,    a    growing    unwillingness    I 
convictions   on   confessions    unless   sup] 
by   corroborating   circumstances,    and   in   all 
cases   there  must  be  at   least  proof  of   the 
corpus  delicti,   independently   of  the  confes- 
sion; 1  Whart.  Cr.  Law.  §  883;  Cooley,  Const. 
Lim.  385;    Tayl.  Ev.   74-1.     See  Admissions; 
Concession  ;    Res  Gestae. 

Dying  declarations  are  an  exception  to 
the  rule  excluding  hearsay  evidence,  and 
are  admitted,  under  certain  limitations  in 
cases  of  homicide,  so  far  as  the  circum- 
stances attending  the  death  and  its  cause 
are  the  subject  of  them.  See  Declaration  ; 
Dying  Declamations. 

Opinions  of  persons  of  skill  and  expt  rl- 
ence,  called  experts,  are  also  admissible  in 
certain  cases,  when,  in  order  to  the  better 
understanding  of  the  evidence  or  to  the  solu- 
tion of  the  question,  a  certain  skill  and  ex- 
perience are  required  which  are  not  ordi- 
narily possessed  by  jurors.  A  nou-' 
witness  on  the  question  of  the  sanity  of  one 
accused  of  crime  "after  stating  such  par- 
ticulars as  he  can  remember, — generally  only 
the  more  striking  facts, —  ...  is  per- 
mitted to  sum  up  the  total  remembered  and 
unremembered  Impressions  of  the  senses  by 
stating  the  opinion  which  they  produced;' 
Queenau  v.  Oklahoma.  190  U.  S.  548,  23  Sup. 
Ct.  702,  47  L.  Ed.  1175.     See  Expert;    Oti.n- 

ION. 

In  several  instances  proof  of  facts  is  ex- 
eluded  from  public  policy;  as  professional 
communications  between  lawyer  and  client. 
and  physician  and  patient;  secrets  of  state. 
proceedings  of  grand  juror,  and  communi- 
cations between  husband  and  wile.  See 
Confidential  Commend  ahons  ;  I'kivileged 
Communications. 

The  effect  of  evidence.  As  a  general  rule, 
a  judgment  rendered  by  a  court  of  com- 
petent jurisdiction  directly  upon  a  point  in 
issue  is  a  bar  between  the  same  parti- 
Phill.  Ev.  242;  and  privies  in  blood,  as  an 
heir;  3  Mod.  141;  or  privies  in  estate;  1 
Ld.  Raym.  730;  Bull.  N.  P.  232,  stand  in  the 
same  situation  as  those  they  represent:  the 
verdict  and  judgment  may  be  used  for  or 
against   them,   and  is  conclusive.     See  Res 

J  El  U  CAT  A  :     JinxiMKNT. 

The  constitution  of  the  United  States,  art. 
4,  s.  1,  declares  that  "full  faith  and  credit 
shall   be  given   in  each  state  to  the  public 


EVIDENCE 


1098 


EVIDENCE 


acts,    records,    and    judicial    proceedings    of 
every  other  state.    And  congress  may,  by  gen- 
eral   laws,    prescribe    the    manner   in    which 
such  acts,  records,  and  proceedings  shall  be 
proved,  and  the  effect  thereof."     See  Hamp- 
ton v.  M'Connel,  3  Wheat.    (U.  S.)   234,  4  L, 
Ed.    378;     Com.    v.    Green,    17    Mass.    546 
Stephenson  v.  Bannister,  3  Bibb   (Ky.)  369 
Manwaring  v.  GrifHng,  5  Day    (Conn.)   563 
Hilton  v.  Guyot,  159  U.   S.  113.   10  Sup.  Ct 
139,  40  L.  Ed.  95 ;  Ritchie  v.  McMullen,  159 
U.  S.  235,  16  Sup.  Ct  171,  40  L.  Ed.  133  ;    2 
Black,  Judg.  §  857;    Foreign  Judgment. 

Statutes  defining  what  shall  be  held  con- 
clusive are,  in  general,  unconstitutional,  as 
a  deprivation  of  due  process  of  law,  and  as 
depriving  the  courts  of  their  function  of  de- 
termining the  weight  and  sufficiency  of  evi- 
dence; Chicago,  M.  &  St.  P.  R.  Co.  v.  Min- 
nesota, 134  U.  S.  418,  10  Sup.  Ct.  462,  702,  33 
L.  Ed.  970;  Missouri,  K.  &  T.  R.  Co.  v. 
Simonson,  64  Kan.  802,  68  Pac.  653,  57  L.  R. 
A.  765,  91  Am.  St.  Rep.  248;  Cairo  &  F.  R. 
Co.  v.  Parks,  32  Ark.  131 ;  Wantlan  v.  White, 
19  Ind.  470 ;  Meyer  v.  Berlandi,  39  Minn.  438, 
40  N.  W.  513,  1  L.  R.  A.  777,  12  Am.  St.  Rep. 
GG3;  Cooley  Const.  Lim.  (5th  ed.)  453;  but 
the  legislature  may  make  the  deliberate 
statement  of  a  party  conclusive  evidence 
against  him ;  Orient  Ins.  Co.  v.  Daggs,  172 
U.  S.  557,  19  Sup.  Ct.  281,  43  L.  Ed.  552. 

Foreign  laws  must  be  proved  as  facts  in 
the  courts  of  this  country,  and  mere  cita- 
tions to  English  statutes  and  authorities  can- 
not be  accepted  as  showing  the  English  law; 
Dickerson  v.  jiatheson,  50  Fed.  73.  See  For- 
eign Law.  For  the  force  and  effect  of  for- 
eign judgments,  see  Foreign  Judgment. 

The  object  of  evidence  is  next  to  be  con- 
sidered. It  is  to  ascertain  the  truth  be- 
tween the  parties.  It  has  been  discovered 
by  experience  that  this  is  done  most  cer- 
tainly by  the  adoption  of  the  following  rules, 
which  are  now  binding  as  law :  1.  The  evi- 
dence must  be  confined  to  the  point  in  issue. 
2.  The  substance  of  the  issue  must  be  proved; 
but  only  the  substance  is  required  to  be 
proved.  3.  The  affirmative  of  the  issue  must 
be  proved. 

It  is  a  general  rule,  both  in  civil  and 
criminal  cases,  that  the  evidence  shall  be 
confined  to  the  point  in  issue.  Justice  and 
convenience  require  the  observance  of  this 
rule,  particularly  in  criminal  cases ;  for 
when  a  prisoner  is  charged  with  an  offence 
it  is  of  the  utmost  importance  to  him  that 
the  facts  laid  before  the  jury  should  consist 
exclusively  of  the  transaction  which  forms 
the  subject  of  the  indictment,  and  which 
alone  he  has  come  prepared  to  answer;  2 
Russ.  Cr.  694;   1  Phill.  Ev.  166. 

To  this  general  rule  there  are  several  ex- 
ceptions, and  a  variety  of  cases  which  do 
not  fall  within  the  rule.  In  general,  evi- 
dence of  collateral  facts  is  not  admissible; 
but  when  such  a  fact  is  material  to  the 
issue  joined  between  the  parties,  it  may  be 


given  in  evidence :  as,  for  example,  in  order 
to  prove  that  the  acceptor  of  a  bill  knew 
the  payee  to  be  a  fictitious  person,  or  that 
the  drawer  had  general  authority  from  him 
to  fill  up  bills  with  the  name  of  a  fictitious 
payee,  evidence  may  be  given  to  show  that 
he  had  accepted  similar  bills  before  they 
could,  from  their  date,  have  arrived  from 
the  place  of  date ;   2  H.  Bla.  288. 

When  special  damage  sustained  by  the 
plaintiff  is  not  stated  in  the  declaration,  it 
is  not  one  of  the  points  in  issue,  and,  there- 
fore, evidence  of  it  cannot  be  received ;  yet 
a  damage  which  is  a  necessary  result  of  the 
defendant's  breach  of  contract  may  be 
proved  notwithstanding  it  is  not  in  the  dec- 
laration ;    11  Price  19. 

In  general,  evidence  of  the  character  of 
either  party  to  a  suit  is  inadmissible ;  yet  in 
some  cases  such  evidence  may  be  given.  See 
Character. 

When  evidence  incidentally  applies  to  an- 
other person  or  thing  not  included  in  the 
transaction  in  question,  and  with  regard  to 
whom  or  to  which  it  is  inadmissible,  yet  if 
it  bear  upon  the  point  in  issue  it  will  be 
received;  8  Bing.  376.  And  see  4  B.  &  P. 
92;  State  v.  Watkins,  9  Conn.  47,  21  Am. 
Dec.  712;    1  Whart.  Cr.  Law  §  649. 

The  acts  of  others,  as  in  the  case  of  con- 
spirators, may  be  given  in  evidence  against 
the  prisoner,  when  referable  to  the  issue ; 
but  confessions  made  by  one  of  several  con- 
spirators after  the  offence  has  been  complet- 
ed, and  when  the  conspirators  no  longer  act 
in  concert,  cannot  be  received.  See  Liver- 
more  v.  Herschell,  3  Pick.  (Mass.)  33;  Mack- 
aboy  v.  Com.,  2  Va.  Cas.  269 ;  Reitenbach  v. 
Reitenbach,  1  Rawle  (Pa.)  362,  18  Am.  Dec. 
638;  Wilbur  v.  Strickland,  1  Rawle  (Pa.) 
458;  Martin  v.  Com.,  2  Leigh  (Va.)  745; 
Gardner  v.  Preston,  2  Day  (Conn.)  205,  2 
Am.  Dec.  91 ;  2  B.  &  Aid.  573,  574 ;  Perigo  v. 
State,  25  Tex.  App.  533,  8  S.  W.  660;  Con- 
spiracy;  Confession. 

In  criminal  cases,  when  the  offence  is  a 
cumulative  one,  consisting  itself  in  the  com- 
mission of  a  number  of  acts,  evidence  of 
those  acts  is  not  only  admissible,  but  essen- 
tial to  support  the  charge.  On  an  indictment 
against  a  defendant  for  a  conspiracy  to 
cause  himself  to  be  believed  a  man  of  large 
property,  for  the  purpose  of  defrauding 
tradesmen  after  proof  of  a  representation  to 
one  tradesman,  evidence  may  thereupon  be 
given  of  a  representation  to  another  trades- 
man at  a  different  time;  1  Campb.  399; 
Gardner  v.  Preston,  2  Day  (Conn.)  205,  2 
Am.  Dec.  91;  Snell  v.  Moses,  1  Johns.  (N. 
Y.)   99. 

Evidence  of  similar  occurrences  is  admis- 
sible, to  show  the  quality  of  the  act,  in  many 
cases,  as  the  value  of  land,  the  dangerous 
character  of  a  drug,  or  the  reasonableness 
of  the  act;  17  Harv.  L.  Rev.  349,  where  the 
principles  regulating  the  subject  are  discuss- 
ed, and  the  decisions  are  said  to  be  chaotic 


EVIDENCE 


101)9 


evil; 


and  arbitrary,  as  a  result  of  the  rule  that 
the  admissibility  is  made  to  depend  on  the 
opinion  of  the  judge  as  to  whether  it  raises 
a  multiplicity  of  issues  or  occasions  undue 
surprise.  In  civil  cases  such  evidi 
to  be  admitted  in  very  few  instances.  It  is 
inadmissible  to  prove  negligence;  Missouri, 
K.  &  T.  Ry.  Co.  v.  Johnson,  92  Tex.  380,  48 
S.  W.  568;  but,  to  prove  due  care,  evidence 
of  a  general  custom  of  switchmen  to  ride  on 
the  side  of  a  freight  car  was  admitted. 
v.  Lumber  Co.,  119  Wis.  642,  97  N.  W.  563. 
So  it  has  been  admitted  to  prove  similarity 
of  conditions,  as  the  effect  of  the  passing  of 
trains  over  a  certain  curve;  Louisville  «.V  N. 
R  Co.  v.  Sandlin,  125  Ala.  5S5,  2S  South.  40; 
or  the  supply  of  gas  to  other  houses,  where 
the  appliances  were  such  as  to  furnish  as 
much  or  more  gas  than  those  in  dispute ; 
Indiana  Natural  &  Illuminating  Gas  Co.  v. 
Anthony,  2G  Ind.  App.  307,  58  N.  E.  8G8 ;  or 
the  relative  quantity  of  water  obtained  un- 
der similar  conditions  in  other  pastures, 
where  the  action  was  for  an  insufficient  sup- 
ply in  the  case  of  a  contract  to  pasture  cat- 
tle; Tuttle  v.  Robert  Moody  &  Son  (Tex.) 
94  S.  W.  134.  In  criminal  cases  such  evi- 
dence is  admissible  to  show  mental  condi- 
tion; [1S99]  1  Q.  B.  D.  77;  12  Cox,  C.  C.  612; 
Com.  v.  Coe,  115  Mass.  481,  501.  In  prosecu- 
tions for  crime,  evidence  of  similar  offences 
is  not  admissible  except  for  the  purpose  of 
showing  the  intent ;  Topolewski  v.  State,  130 
Wis.  244,  109  N.  W.  1037,  7  L.  R.  A.  (N.  S.) 
75G,  118  Am.  St.  Rep.  1019,  10  Ann.  Cas.  627 ; 
Lightfoot  v.  People,  1G  Mich.  507;  Olson  v. 
U.  S.,  133  Fed.  849,  G7  C.  C.  A.  21 ;  U.  S.  v. 
Flemming,  18  Fed.  907 ;  Dillard  v.  U.  S.,  141 
Fed.  303,  72  C.  C.  A.  451;  Com.  v.  Russell, 
156  Mass.  190,  30  N.  E.  763 ;  Packer  v.  U.  S., 
106  Fed.  900,  46  C.  C.  A.  35 ;  Brown  v.  U.  S., 
142  Fed.  1,  73  C.  C.  A.  187;  or  some  element 
of  the  present  charge;  Paulson  v.  State,  118 
Wis.  89,  94  N.  W.  771 ;  but  evidence  of  previ- 
ous offences  is  not  admissible  to  raise  the 
presumption  of  present  guilt;  Lightfoot  v. 
People,  16  Mich.  507;  2  Can.  L.  Rev.  GS9 ; 
20  Harv.  L.  Rev.  151;  but  evidence  otherwise 
admissible  is  not  rendered  inadmissible  mere- 
ly because  likely  to  raise  a  prejudice;  [1S94] 
A.  C.  57 ;  and  when  a  guilty  knowledge  or 
intent  is  an  essential  part  of  the  offence, 
commission  of  similar  acts  may  be  proved 
to  raise  an  inference  of  such  knowledge  or 
intent;  2  Can.  L.  Rev.  690;  where  a  prisoner 
had  passed  a  counterfeit  dollar,  evidence 
that  he  had  other  counterfeit  dollars  in  his 
possession  is  evidence  to  prove  the  guilty 
knowledge;  State  v.  Odel,  2  Const.  (S.  C.) 
75S;  State  v.  Antonio,  id.  776;  State  v.  Hous- 
ton, 1  Bail.  (S.  C.)  300;  Martin  v.  Com.,  L" 
Leigh  (Va.)  745;  People  v.  Lagrille,  1  Wheel. 
Cr.  Cas.  (N.  Y.)  415;  Russ.  &  R.  132;  Finn 
v.  Com.,  5  Rand.  (Va.)  701;  and  when  a 
wife  was  tried  for  poisoning  her  husband  by 
arsenic,  evidence  was  admitted  of  the  death 
of  two  sons  and  similar  illness  of  the  third 


from  same  cause,  to  show  that  the  hu 
died   of   arsenical   ;  and   not 

dentally;   18  L.  J.  M.  C.  215;    15  Cox,  Cr.  C. 

!"  ; ;   aj  .  v.  Moln  N.  Y. 

264,  61  N. 

in  Hi'-  ■■;  and  in  an  exl 

Bubject    la    dJ  d    from    every    point   of 

view,  and  the  cases  are  colle 

Where  the  crime  <■;  part  of  a  plan 

item    of    criminal    . 
other  crimes  near  to  it  in  tin 
Iar  character,  is  relevant  and 
show    the   knowledge   and   intent  of  f 
cused,  and  that  the  act  charged  •■ 
result  of  accident  or  Ina 
v.    U.   S.,   158   fed.   r,72,  85   C.   C.   A.  5 
where   the  other    and    independent    criminal 
acts  of  themselves  form  the  motive  for 
mining   the   crime  alleged    in   the  cas 
trial;   Thompson  v.  V.  s.,  144  led.  it.  75  C. 
C.  A.  172,  7  Ann.  Cas.  02;  or  is  an  incident 
to,  or  part  of,  or  leads  up  to  the  latter;    P«  h 
pie  v.  McLaughlin,  150  N.  Y.  365,  44  N.   i:. 
1017;    but  as  such   evidence,   if  wrongfully 
admitted,   would  greatly  prejudice  the  pris- 
oner,    its     relevancy     should     be     carefully 
scrutinized;     Com.     v.     Shepard,     1     Allen 
i  Mass.  i    575.   581;   hence  Its   admission   upon 
an  issue  as  to  which  it  is  not  relevant  will 
be  prejudicial   and    therefore    reversible   er- 
ror; People  v.  Collins,  144  Mich.  121,  107  N. 
W.  1114. 

The  substance  of  the  issue  joined  between 
the  parties  must  be  proved;  1  PhilL  Ev.  190; 
Tayl.  Ev.  233.  Under  this  rule  will  be  con- 
sidered the  quantity  of  evidence  required  to 
support  particular  averments  in  the  declara- 
tion or  indictment. 

And,  first,  of  civil  cases.  1.  It  is  a  fatal 
variance  in  a  contract  if  it  appear  that  a 
party  who  ought  to  have  been  joined  as 
plaintiff  has  been  omitted;  1  Saund.  291  h, 
n.;  2  Term  282;  and  so  where  a  bill  for 
specific  performance  alleges  the  execution  of 
a  contract  in  a  certain  year,  and  the  proof 
shows  that  it  was  made  in  another;  John- 
ston v.  Jones,  S5  Ala.  286,  -1  South.  748.  Bui 
it  is  no  variance  to  omit  a  person  who  might 
have  been  joined  as  defendant;  because  the 
non-joinder  ought  to  have  been  pleaded  in 
abatement;  1  Saund.  293  </.  n.  2  The  con- 
sideration of  the  contract  must  be  proved; 
but  it  is  not  necessary  for  the  plaint  iff  to  set 
out  in  his  declaration,  or  prove  on  the  trial, 
the  several  parts  of  a  contract  consisting  of 
distinct  and  collateral  provisions:  it  Is  sutii- 
cient  to  state  so  much  of  the  contract  as  con- 
tains the  entire  consideration  of  the  act,  and 
the  entire  act  to  be  done  in  virtue  of  such 
consideration,  Including  the  time,  manner, 
and  other  circumstances  of  its  perform 
6  Easl  568;   4  B.  &  Aid.  3S7. 

Second.  In  criminal  cases,  it  may  be  laid 
down  that  it  Is,  in  general,  sufficient  to  prove 
what  constitutes  the  offence,  l.  it  is  enougb 
to  prove  so  much  of  the  indictment  as  shows 
that    the    defendant    has    committed    a    sub- 


EVIDENCE 


1100 


EVIDENCE 


stantive  crime  therein  specified;  2  Campb. 
585;  U.  S.  v.  Vickery,  1  H.  &  J.  (Md.)  427, 
Fed.  Cas.  No.  16,619.  See  Daniels  v.  State,  78 
Ga.  98,  6  Am.  St.  Rep.  23S ;  People  v.  Wake- 
ly,  62  Mich.  297,  28  N.  W.  871.  If  a  man  be 
indicted  for  robbery,  he  may  be  found  guilty 
of  larceny  and  not  guilty  of  the  robbery ;  2 
Hale,  PI.  Cr.  302.  The  offence  of  which  the 
party  is  convicted  must,  however,  be  of  the 
same  class  with  that  of  which  he  is  charged ; 
1  Leach  14;    2  Stra.  1133. 

2.  When  the  intent  of  the  prisoner  fur- 
nishes one  of  the  ingredients  in  the  offence, 
and  several  intents  are  laid  in  the  indict- 
ment, each  of  which,  together  with  the  act 
done,  constitutes  an  offence,  it  is  sufficient 
to  prove  one  intent  only ;   3  Stark.  35. 

3.  When  a  person  or  thing  necessary  to 
be  mentioned  in  an  indictment  is  described 
with  circumstances  of  greater  particularity 
than  is  requisite,  yet  those  circumstances 
must  be  proved ;  U.  S.  v.  Porter,  3  Day 
(Conn.)  2S3,  Fed.  Cas.  No.  16,074;  Clark  v. 
State,  26  Tex.  App.  4S6,  9  S.  W.  767.  For 
example,  if  a  party  be  charged  with  stealing 
a  black  horse,  the  evidence  must  correspond 
with  the  averment,  although  it  was  unneces- 
sary to  make  it ;  Hooker  v.  State,  4  Ohio  350 ; 
Berrien  v.  State,  83  Ga.  381,  9  S.  E.  609 ;  but 
see  People  v.  Monteith,  73  Cal.  7,  14  Pac.  373, 
where  an  indictment  charging  a  murder  with 
a  "bludgeon"  is  supported  by  proof  that 
death  was  produced  by  a  blow  with  a  bolt  or 
club;  Long  v.  State,  23  Neb.  33,  36  N.  W. 
310.    See  State  v.  Weddington,  103  N.  C.  364, 

9  S.  E.  577 ;  Douglass  v.  State,  26  Tex.  App. 
109,  9  S.  W.  4S9,  8  Am.  St  Rep.  459. 

4.  The  name  of  the  prosecutor  or  party 
injured  must  be  proved  as  laid ;  and  the  rule 
is  the  same  with  reference  to  the  name  of  a 
third  person  introduced  into  the  indictment, 
as  descriptive  of  some  person  or  thing.  See 
Robinson  v.  Com.,  88  Ky.  386,  11  S.  W.  210, 

10  Ky.  L.  Rep.  972;  State  v.  Quinlan,  40 
Minn.  55,  41  N.  W.  299. 

The  affirmative  of  the  issue  must  be  proved. 
The  general  rule  with  regard  to  the  burden 
of  proving  the  issue  requires  that  the  party 
who  asserts  the  affirmative  shoulu  prove  it. 
But  this  rule  ceases  to  operate  the  moment 
the  presumption  of  law  is  thrown  into  the 
other  scale.  When  the  issue  is  on  the  legiti- 
macy of  a  child,  therefore,  it  is  incumbent  on 
the  party  asserting  the  illegitimacy  to  prove 
it;  2  Selw.  N.  P.  709.  Or  where  an  answer 
admits  all  the  averments  of  the  complaint, 
and  sets  up  a^ounter-claim  as  a  defence,  the 
affirmative  of  all  the  issues  raised  by  the 
pleadings  is  on  the  defendant ;  Hamilton 
Coal  Co.  v.  Bernhard,  61  Hun  624,  16  N.  Y. 
Supp.  55.  See  Onus  Probandi;  Presump- 
tion; U.  S.  v.  Hay  ward,  2  Gall.  4S5,  Fed.  Cas. 
No.  15,336 ;  State  v.  Geuing,  1  McCord  (S.  C) 
573;  2  So.  L.  Rev.  (N.  S.)  126;  Delachaise 
v.  Maginnis,  44  La.  Ann.  1043,  11  South.  715. 

Modes  of  proof.    Records  are  to  be  proved 


by  an  exemplification,  duly  authenticated 
according  to  law,  in  all  cases  where  the  is- 
sue is  nul  Mel  record.  In  other  cases,  an  ex- 
amined copy,  duly  proved,  will,  in  general,  be 
evidence;  Leathers  v.  Wrecking,  etc.,  Co.,  2 
Woods  6S0,  Fed.  Cas.  No.  8,164.  Foreign 
laws  are  proved  in  the  mode  pointed  out  un- 
der the  article  Foreign   Law.     See   supra. 

Incompetent  and  irrelevant  evidence  can- 
not be  rendered  competent  and  relevant  by 
being  contained  in  an  official  document ;  U. 
S.  v.  Corwin,  129  U.  S.  381,  9  Sup.  Ct  318, 
32  L.  Ed.  710. 

Private  writings  are  proved  by  producing 
the  attesting  witness ;  or  in  case  of  his  death, 
absence,  or  other  legal  inability  to  testify,  as 
if  after  attesting  the  paper  he  becomes  in- 
famous, his  handwriting  may  be  proved. 
When  there  is  no  witness  to  the  instrument, 
it  may  be  proved  by  the  evidence  of  the  hand- 
writing of  the  party,  by  a  person  who  has 
seen  him  write,  or  who  in  a  course  of  cor- 
respondence or  business  relations  has  become 
acquainted  with  his  hand.  See  Munns  v.  De 
Nemours,  3  Wash.  C.  C.  31,  Fed.  Cas.  No. 
9,926;  Arnold  v.  Gorr,  1  Rawle  (Pa.)  223; 
4  Am.  L.  Rev.  625 ;  Berg  v.  Peterson,  49 
Minn.  420,  52  N.  W.  37.  As  to  the  question 
whether  the  genuineness  of  a  signature  may 
be  proved  or  disproved  by  comparison,  or  the 
signature  to  documents  not  a  part  of  the  case 
be  proven  for  the  purpose  of  using  them  as 
standards  of  comparison  with  the  signature 
to  the  instrument  sued  on,  see  Handwriting. 

Books  of  original  entry,  when  duly  proved, 
are  prima  facie  evidence  of  goods  sold  and 
delivered,  and  of  work  and  labor  done.  See 
Original  Entry. 

A  full  opinion  laid  down  some  general 
rules  in  relation  to  the  use  of  the  ballots  as 
evidence  in  an  election  contest,  which  present 
the  law  in  that  regard  in  a  very  terse  and 
lucid  form.  It  holds  (1)  that  one  who  has 
received  a  certificate  of  election  to  office  is 
not  estopped  in  case  of  contest  from  going 
behind  the  returns  from  ballot  boxes  which 
were  counted  without  objection  by  either 
party,  and  which  formed  the  basis  of  the  cer- 
tificate; (2)  that  in  an  election  contest,  the 
ballots  of  a  certain  box,  which  had  been 
opened  before  a  legislative  committee  after 
the  election,  are  admissible  when  it  appears 
that  the  opportunity  for  the  ballots  to  have 
been  tampered  with  was  a  mere  possibility ; 
and  (3)  that  the  fact  that  a  discrepancy  ex- 
ists between  the  returns  of  the  votes  counted 
from  that  ballot  box  and  a  recount  made  by 
the  court  in  an  election  contest  does  not  in- 
dicate that  there  was  any  alteration  in  the 
ballots  after  being  voted,  nor  tend  to  cast 
suspicion  thereon,  when  the  evidence  shows 
that,  when  the  count  was  concluded  by  the 
election  officers,  there  were  discrepancies  be- 
tween the  tally  sheets  of  the  different  clerks 
of  the  election,  which  it  was  attempted  to  rec 
oncile  by  guessing  at  the  result,  and  making 


EVIDENCE 


1101 


EVIDENCE 


changes  accordingly;    Henderson  v.  Albright, 
12  Tex.  Civ.  App.  368,  34  S.   W.  992.     See 

Election. 

Proof  by  witnesses.  The  testimony  of  wit- 
nesses is  called  oral  evidence,  or  that  which 
is  given  viva  voce,  as  contradistinguished 
from  that  which  is  written  or  documentary. 
Testimony  is  oral  evidence  as  distinguished 
from  documentary  or  written.  Proof  is  the 
effect  of  evidence  and  evidence  is  the  means 
or  medium  of  proof ;  Elliot,  Ev.  §  9,  and  cas- 
es cited.  It  is  a  general  rule  that  oral  evi- 
dence shall  in  no  case  be  received  as  equiva- 
lent to,  or  as  a  substitute  for,  a  written  in- 
strument, whore  the  Latter  is  required  by 
law  ;  or  to  give  effect  to  a  written  instru- 
ment which  is  defective  in  any  particular 
which  by  law  is  essential  to  its  validity;  or 
to  contradict,  alter,  or  vary  a  written  in- 
strument, either  appointed  by  law,  or  by  the 
contract  of  the  parties,  to  Lie  the  appropriate 
and  authentic  memorial  of  the  particular 
facts  it  recites;  for  by  doing  so,  oral  testi- 
mony would  be  admitted  to  usurp  the  place 
of  evidence  decidedly  superior  in  degree ; 
Christ  v.  Diffenbach,  1  S.  &  R.  (Pa.)  404,  7 
Am.  Dec.  624;  Querry  v.  White,  1  Bibb  (Ky.) 
271 ;  Stackpole  v.  Arnold,  11  Mass.  30,  0  Am. 
Dec.  150;  Barber  v.  Brace,  3  Conn.  9,  8  Am. 
Dec.  149;  Chemical  Electric  Light  &  Power 
Co.  v.  Howard.  150  Mass.  496,  23  N.  E.  317; 
Butler  v.  Trust  Co.,  122  Ga.  371,  50  S.  E.  132; 
Colton  v.  Vandervolgen,  87  Ind.  361 ;  Chari- 
ton Ice  Co.  v.  Ice  Co.,  129  la.  523,  105  N.  W. 
1014;  O'Connor  v.  Green,  60  App.  Div.  553, 
69  N.  Y.  Supp.  1097;  Town  of  Kane  v.  i-'ar- 
relly,  192  111.  521,  61  N.  E.  64S ;  Milwaukee 
Carnival  Ass'n  v.  King  Co.,  112  Wis.  647,  88 
N.  W.  59S;  Northern  Assur.  Co.  v.  Building 
Ass'n,  1S3  U.  S.  30S,  22  Sup.  Ct.  133,  40  L. 
Ed.  213  (where  many  cases  are  considered), 
criticised,  15  Harv.  L.  Rev.  575;  but  this 
rule  does  not  apply  in  suits  between  persons 
not  parties  to  the  writing;  Williams  v.  Fish- 
er, 8  Misc.  314,  2S  X.  Y.  Supp.  7::'.);  Clapp  v. 
Banking  Co.,  50  Ohio  St.  528,  35  N.  E.  30S ; 
Brown  v.  Thurber.  77  N.  Y.  013 ;  Kellogg  v. 
Tompson,  142  Mass.  76.  6  X.  E.  S60. 

But  parol  evidence  is  admissible  to  defeat 
a  written  instrument,  on  the  ground  of  fraud, 
mistake,  etc.,  or  to  apply  it  to  its  proper  sub- 
ject-matter, or,  in  some  instances,  as  ancil- 
lary to  such  application,  to  explain  the 
meaning  of  doubtful  terms,  or  to  rebut  pre- 
sumptions arising  extrinsically.  Such  evi- 
dence is  admissible  if  the  contract  was  ob- 
tained by  fraud;  Cass  v.  Brown,  68  N.  11.  85, 
44  Atl.  86;  Cushwa  v.  Imp.  Loan  &  Bldg. 
Ass'n,  45  W.  Ya.  490,  32  S.  B.  259;  McCrary 
v.  Pritchard,  119  Ga.  876,  17  s.  E.  ::n  ;  Moore 
v.  Harmon,  142  Ind.  555,  41  N.  E.  599 :  or 
false  representations:  Machin  v.  Trust  Co., 
210  Pa.  2."):;.  59  Atl.  107:::  l>:uis  v.  DriscoU, 
22  Tex.  Civ.  App.  14.  51  S.  W.  43;  or  if  the 
written  contract  is  ambiguous  or  obscure  so 
that  the  intent  of  the  parties  cannot  be  as- 
certained ;    Jacobs  v.  Parodi,  50  Fla.  541,  39 


South.  833;    Leverett  v.  Bullard,  121  Ga.  534, 

49  S.  E.  591  ;  Stone  v.  Muivaine,  217  111.  40. 
75  X.  E.  421;  Gregory  v.  Lake  Linden,  130 
Mich.  368,  90  X.  W.  29;  but  the  ambiguity 
must  be  a  latent  one;  Okie  v.  Person,  23  App. 
D.  C.  170;  11- -an  v.  Wallace,  100  111.  328,  46 
X.  E.  1136;  Camden  &  T.  It.  To.  v.  Adams, 
02  X.  J.  Eq.  656,  51  A.U.  24  ;  A.1 
Ferguson,  54  X.  V.  659;  it"  patent  •:.  <■  ■ 

of  the  deed,  parol  evidence  is  not  ad 
Storer  v.  Freeman,  t;  Mass.    155,  4  Am 
155;    Holman  v.  Whitaker,  119  X.  C.  L13,  25 
s.  E.  7:*:; ;    Gatewood  v.  Burrus,  3  O    I 
194.     Where   the   contract   is   obscure 

d,  so  that  a  knowledge  oi  tl 
matter  and   relation   of  the   pi 

try,  parol  evidence,  a-  to  that,  may  be 
admitted;  Black  River  Lumber  Co.  v.  War- 
ner, 93  Mo.  :;7i.  o  s.  w.  210;  bo  also  it  may 
be  admitted  to  show  the  meaning  of  words 
used,  where  they  have  some  other  than  the 
ordinary  sense;  Richmond  Onion  Pass.  R.  C 
v.  R.  Co.,  95  \'a.  386,  28  s.  E.  57:;;  Mcintosh 
v.  Miner,  53  App.  Div.  210,  05  X.  Y.  Supp. 
755;  Wib-ox  v.  Baer,  85  Mo.  App.  587;  "i" 
the  identification  of  parties,  where  that  does 
not  appear  certain  by  the  instrument,  as  that 
the  grantees  in  a  deed  were  husband  and 
wife;  McLaughlin  v.  Rice,  185  Klass.  212,  70 
X.  E.  52.  102  Am.  St.  Rep.  339;  Aplin  v. 
Fisher,  84  Mich.  128,  47  X.  W.  571 ;  or  that 
the  words  "bodily  heirs"  meant  children; 
Edins  v.  Murphree,  111'  Ala.  617,  38  South. 
639;  or  that  one  of  the  contractors  was  a 
partnership  and  not  a  corporation;  Hubbard 
v.  Chappel,  14  Ind.  601;  or  where  the  identity 
of  the  parties  is  not  clear:  Masked  v.  Tukes- 
bury,  92  Me.  551,  43  Atl.  500,  69  Am.  St.  Rep. 
529;  or  where  a  signature  is  made  with  in- 
itials only;  Sanborn  v.  Flagler,  '.>  Allen 
(Mass.1  171;  or  to  establish  the  liability  of 
an  undisclosed  principal;  City  Trust.  Sal'e- 
Deposit  &  Surety  Co.  of  Philadelphia  v. 
Brewing  Co.,  174  X.  Y.  480,  07  X.  1 
Smith  v.  Felter,  63  X.  J.  I..  30,  -1-  Atl.  1053; 
lleywood  Bros.  &  Wakefield  Co.  v.  Andrew--. 

50  111.  App.  195;  Belt  v.  Power  Co..  24  Wash. 
387,  »''i  Pac.  525;  contra,  Vail  v.  Life  ins. 
Co.,  192  111.  567,  6]  X.  E.  651;  Finan  v.  Bab- 
cock,  58  Mich.  501.  26  X.  w.  294;  David  Be- 
lasco  Go.  v.  Claw,  is  Mis.-.  597,  '.'7  N.  v. 
Supp.  712;  or  whether  the  notes  were  made 
by  individuals  or  a  linn  ;  In  re  E.  B.  Weis- 
enberg  &  Co.,  131  fed.  517;  Huguenot  Mills 
v.  George  F.  Jempson  &  Co.,  68  S.  C.  363,  17 
s.  E.  int.  102  Am.  St.  Rep.  673;  Markham  v. 
Cover.  D'.t  Mo.  App.  83,  72  S.  W.  171;  Daugh- 
erty  v.  lleckard.  189  111.  239,  59  X.  B.  569; 
or  where  two  persons  have  the  same  name: 
Simpson  v.  Dix,  151  Mass.  179;  or  there  is  a 
mistake  or  variance  in  the  name;  Hicks  v. 
Ivey.  '.»'.'  Ga.  'Us.  L't,  S.  E.  -is;  or  whe 
dence  is  necessary  to  identify  the  subject 
matter:  /Etna  Ins.  Co.  v.  Strout,  10  Ind.  App. 
100.  44  X.  K.  934;  Ax  ford  v.  Meeks,  59  X.  J. 
L.  502,  36  Atl.  1036;  and,  in  some  cases, 
evidence  of  conversations   between   the  par- 


EVIDENCE 


1102 


EVIDENCE 


ties  during  negotiations  is  competent  to  show 
the  construction  of  the  contract;  Hart  v. 
Thompson,  10  App.  Div.  183,  41  N.  Y.  Supp. 
909;  or  to  explain  an  ambiguity;  Sabin  v. 
Kendrick,  5S  App.  Div.  108,  GS  N.  Y.  Supp. 
546  ;  Wright  v.  Gas  Co.,  2  Pa.  Super.  Ct.  219 ; 
Wussow  v.  Hase,  10S  Wis.  382,  84  X.  W.  433  ; 
but  not  to  change  the  terms  of  the  contract ; 
Hart  v.  Hart,  117  Wis.  639,  94  X.  W.  890. 

But  parol  evidence  is  not  admissible  to  con- 
tradict the  terms  of  the  agreement  or  show 
the  intent  of  the  parties;  Delaware  Indians 
v.  Cherokee  Nation,  193  U.  S.  127,  24  Sup. 
Ct.  342,  4S  L.  Ed.  646;  Packer  v.  Roberts,  140 
111.  671,  29  N.  E.  G6S;  Willis  v.  Weeks,  129 
la.  525,  105  N.  W.  1012;  or  to  construe  a 
term  which  may  be  done  without  extrinsic 
evidence ;  Sullivan  v.  R.  Co.,  138  Ala.  650,  35 
South.  694 ;  or  to  explain  away  or  destroy 
the  effect  of  the  agreement ;  King  v.  Ins.  Co., 
45  Ind.  43. 

Extrinsic  evidence  is  inadmissible  to  contra- 
dict or  control  court  records ;  Bent  v.  Stone. 
184  Mass.  92,  68  X.  E.  46 ;  Marrow  v.  Brink- 
ley,  85  Va.  55,  6  S.  E.  605,  in  which  an  appeal 
was  dismissed ;  Marrow  v.  Brinkley,  129  U. 
S.  178,  9  Sup.  Ct.  267,  32  L.  Ed.  654 ;  Cook  v. 
Penrod,  111  Mo.  App.  128,  S5  S.  W.  676;  or  to 
supply,  extend  or  modify  the  record  of  judi- 
cial action  by  a  municipal  board ;  Kidson  v. 
City  of  Bangor,  99  Me.  139,  5S  Atl.  900 ;  and 
this  rule  extends  to  official  records  generally ; 
Ferguson  v.  Brown,  75  Miss.  214,  21  South. 
603  ;  Austin  v.  Rodman,  8  N.  C.  71 ;  legisla- 
tive journals  and  records ;  Auditor  General 
v.  Board,  S9  Mich.  552,  51  N.  W.  4S3 ;  7vTil- 
son  v.  Markley,  133  N.  C.  016,  45  S.  E.  1023 ; 
municipal  records ;  Chippewa  Bridge  Co.  v. 
Durand,  122  Wis.  85,  99  N.  W.  603,  106  Am. 
St.  Rep.  931 ;  corporation  records ;  State  v. 
Hancock,  2  Pennewill  (Del.)  252,  45  Atl.  851 
(at  least  in  the  absence  of  fraud  or  mistake); 
Snyder  v.  Lindsey,  157  N.  Y.  616,  52  N.  E. 
592 ;  contra,  Rose  v.  Independent  Chevra 
Kadisho,  215  Pa.  t>9,  64  Atl.  401;  Hequem- 
bourg  v.  Edwards,  155  Mo.  514,  56  S.  W.  490. 
If  there  be  no  fraud,  accident,  or  mistake,  a 
deed  cannot  be  contradicted  or  varied  by  pa- 
rol evidence ;  Kruse  v.  Koelzer,  124  Wis.  536, 
102  N.  W.  1072 ;  Wishart  v.  Gerhart,  105  Mo. 
App.  112,  78  S.  W.  1094;  nor  can  an  official 
deed;  Bower  v.  Chess  &  Wymand  Co.,  S3 
Miss.  218,  35  South.  444 ;  Wells  v.  Savannah, 
181  U.  S.  531,  21  Sup.  Ct.  697,  45  L.  Ed.  986 ; 
or  a  sealed  instrument  generally ;  Finck  v. 
Bauer,  40  Misc.  218,  SI  N.  Y.  Supp.  625. 

See  a  "Brief  History  of  the  Parol  Evi- 
dence Rule,"  by  Wigmore ;  4  Colum.  L.  Rev. 
338;  20  L.  Q.  R.  245;  9  L.  R.  A.  (N.  S.)  967, 
note;  [189S]  2  Q.  B.  487;  also  as  to  con- 
tracts against  public  policy  and  good  in  part ; 
16  Y.  L.  J.  531 ;  and  where  the  writing  was 
delivered  conditionally;  18  L.  R.  A.  (X.-S.) 
434,  note. 

In  these  cases,  the  parol  evidence  does  not 
usurp  the  place,  or  arrogate  the  authority  of 
written  evidence,  but  either  shows  that  the 
instrument  ought  not  to  be  allowed  to  oper- 


ate at  all,  or  is  essential  in  order  to  give  to 
the  instrument  its  legal  effect ;  Smith  v.  Wil- 
liams, 5  X.  C.  426,  4  Am.  Dec.  564;  White  v. 
Eagan,  1  Bay  (S.  C.)  247 ;  Querry  v.  White,  1 
Bibb  (Ky.)  271;  Stackpole  v.  Arnold,  11 
Mass.  30,  6  Am.  Dec.  150.  See  Gilpins  v. 
Consequa,  Pet.  C.  C.  85,  Fed.  Cas.  Xo.  5,452 ; 
Barnet  v.  Gilson,  3  S.  &  R.  (Pa.)  340;  Otis  v. 
Von  Storch,  15  R.  I.  41,  23  Atl.  39 ;  Olds  v. 
Conger,  1  Okl.  232,  32  Pac.  337 ;  Bradley  Fer- 
tilizer Co.  v.  Caswell,  65  Vt.  231,  26  Atl.  956; 
Bulkeley  v.  House,  62  Conn.  459,  26  Atl.  352, 
21  L.  R.  A.  247;  O'Leary  v.  McDonough,  2 
Misc.  219,  23  X.  Y.  Supp.  665;  Louergan  v. 
Buford,  148  U.  S.  581,  13  Sup.  Ct.  684,  37  L. 
Ed.  569 ;  Shepherd  v.  Busch,  154  Pa.  149,  26 
Atl.  363,  35  Am.  St.  Rep.  815.  Where  the 
facts  do  not  appear  on  the  face  of  the  judg- 
ment, oral  evidence  is  admissible  to  show 
how  credits  thereon  come  to  be  allowed,  and 
what  they  were  allowed  for ;  Humphreys  v. 
Bank,  75  Fed.  852,  21  C.  C.  A.  538.  And 
parol  evidence  has  been  admitted  to  establish 
a  contemporaneous  oral  agreement  which  in- 
duced the  execution  of  the  written  contract 
though  the  effect  be  to  alter  or  reform  the 
latter;  Cullmans  v.  Lindsay,  114  Pa.  170,  6 
Atl.  332;  Cake  v.  Bank,  116  Pa.  270,  9  Atl. 
302,  2  Am.  St.  Rep.  600;  so  when  the  con- 
tract was  a  letter  "confirming  our  verbal  con- 
tract," proof  of  the  latter  was  permitted  al- 
though inconsistent  with  the  letter ;  Holt  v. 
Pie,  120  Pa.  439,  14  Atl.  389.  As  a  general 
rule  the  withdrawal  of  evidence  from  the 
consideration  of  the  jury,  by  direction  of  the 
court,  cures  any  error  caused  by  its  admis- 
sion; Pennsylvania  Co.  v.  Roy,  102  U.  S.  452, 
26  L.  Ed.  141 ;  Hopt  v.  Utah,  120  U.  S.  430, 
7  Sup.  Ct.  614,  30  L.  Ed.  708 ;  but  there  are 
exceptions,  as  where  too  strong  an  impres- 
sion has  been  made  to  be  cured  by  the  with- 
drawal; id.;  or  where  the  language  of  the 
withdrawal  is  insufficient  to  identify  clearly 
what  is  withdrawn ;  Throckmorton  v.  Holt, 
ISO  U.  S.  552,  21  Sup.  Ct.  474,  45  L.  Ed. 
663. 

It  was  held  to  be  no  cause  of  action  to  give 
false  evidence  negligently  but  not  wilfully  or 
corruptly,  whereby  the  plaintiff  was  convict- 
ed of  a  criminal  offence,  the  conviction  still 
standing;  [1902]  1  K.  B.  467;  which  was 
based  on  a  long  line  of  authorities  ending 
with  Basely  v.  Mathews,  L.  R.  2  C.  P.  684, 
which  is  said  to  be  a  novel  case,  and  that 
there  would  probably  be  no  cause  of  action 
even  if  the  conviction  were  reversed;  18  L. 
Q.  R.  107-     See  Perjury. 

As  to  the  distinction  between  Evidence, 
which  corresponds  with  probatlo,  and  preuve, 
see  Preuve. 

See,  generally,  the  treatises  on  Evidence, 
of  Gilbert,  Phillipps,  Starkie,  Roscoe,  Swift, 
Bentham,  Macnally,  Peake,  Greenleaf,  WThar- 
ton,  Stephen,  Rice;  Wigmore  ;  Chamberlayne  ; 
McKelvey;  Jones;  Best  on  Presumption; 
Browne,  Parol  Ev.;  Will.  Circ  Ev. ;  Tele- 
graph and  Telephone. 


EVIDENCE,  CIRCUMSTANTIAL        1103 


EX   Ml-RO  MOTU 


EVIDENCE,  CIRCUMSTANTIAL.  See 
Evidence. 

EVIDENCE,     CONCLUSIVE.       See     Evi- 

DENCE. 

EVIDENCE,   DIRECT.     See  EVIDENCE, 

EVIDENCE,  EXTRINSIC.     See  Evidence. 

EVIDENTIA.    See  Pkeuve. 

EVOCATION.  In  French  Law.  The  net 
by  which  a  judge  is  deprived  of  the  cogni- 
zance of  a  suit  over  which  be  had  jurisdic- 
tion, for  the  purpose  of  conferring  on  other 
judges  the  power  of  deciding  it.  It  is  like 
the  process  by  writ  of  certiorari. 

EWAGE.  A  toll  paid  for  water-passage. 
Cowell.    The  same  as  aquagium. 

EWBRICE.  Adultery;  spouse-breach ; 
marriage-breach.    CowelJ;  Tomlin,  Law  Diet. 

EX  /EQUO  ET  BONO  (Lat).  In  justice 
and  good  dealing.    1  Story,  Eq.  Jur.  §  965. 

EX  CONTRACTU  (Lat).  From  contract. 
A  division  of  actions  is  made  in  the  common 
and  civil  law  into  those  arising  ex  contractu 
<from  contract)  and  ex  delicto  (from  wrong  or 
tort).  3  Bla.  Com.  117  ;  1  Chit.  PL  2  ;  1  Mac- 
keldey,  Civ.  Law  §  193. 

EX  DEBITO  JUSTITI/E  (Lat.).  As  a  deht 
of  justice.  As  a  matter  of  legal  right.  3  Bla. 
Com.  48. 

EX  DELICTO  (Lat).  Actions  which  arise 
iu  consequence  of  a  crime,  misdemeanor,  or 
tort  are  said  to  arise  ex  delicto:  such  are  ac- 
tions of  case,  replevin,  trespass,  trover.  1 
Chit.  PI.  2;    See  Ex  Contractu;  Actions. 

EX  DOLO  MALO  (Lat).  Out  of  fraud  of 
deceit.  When  a  cause  of  action  arises  from 
fraud  or  deceit,  it  cannot  be  supported ;  ex 
dolo  malo  non  oritur  actio.     See  Maxims. 

EX  EMPTO.  Out  of  purchase;  founded  on 
purchase.  A  term  of  the  civil  law,  adopted 
by  Bracton.  Inst.  4,  6,  2S ;  Brae.  fol.  102 ; 
Black,  L.  Diet. 

EX  GRATIA  (Lat.).  Of  favor.  Of  grace. 
Words   used   formerly    at  the   beginning   of 

royal  grants,  to  indicate  that  they  were  not 
made  in  consequence  of  any  claim  of  legal 
right. 

EX  INDU  STRIA  (Lat).  Intentionally. 
From  fixed  purpose. 

EX  MALEFICIO  (Lat.).  On  account  of 
misconduct.  By  virtue  of  or  out  of  an  Illegal 
act.  I'sed  in  the  civil  law  generally,  and 
sometimes  in  the  common  law.  Browne,  Stat. 
Frauds  110,  n.;    Broom,  Leg.  Max.  351. 

EX  MERO  MOTU  (Lat.).  Of  mere  motion. 
■  The  term  is  derived  from  the  king's  letters 
patent  and  charters,  where  it  signifies  that 
he  grants  them  of  his  own  mere  motion,  with- 
out petition.  To  prevent  Injustice,  the  courts 
will,  ex  mcro  mo'u,  make  rules  and  orders 


which  the  parties  would  1 1 •  > t  strictly  he  enti- 
tled to  ask  for.     See  Ex  Gratia ;  Ex  1'k 
MOTU. 

EX    MORA  (Lat).     From  the  delay ;  from 
the  default 

EX  MORE  (Lat).    According  to  custom. 

EX    NECESSITATE    LEGIS   (Lat.).     From 
the  necessity  of  law. 

EX    NECESSITATE   REI    (Lat).     Fr- 

ity  of  the  thin^.  Many  acts  may  be 
done  ex  necessitate  ici  which  would  not  he 
justifiable  without  it;    and  &  prop- 

erty is  protected  ex  necessitaU  rei  which  un- 
der other  circumstances  would  no: 
a  way  of  necessity  will  he  allowed  ;    B 
Edwards,  126  Mass.  445.    Property  put  upon 
the  land  of  another  from  necessity  cannot  be 
distrained  for  rent    See  Distb 

EX  OFFICIO  (Lat.).  By  virtue  of  his  of- 
fice. 

Many  powers  are  granted  and  exercised  by 
public  officers  which   are  not   expressly  dele- 
gated.    A  judge,  for  example,  may  he  • 
fido  a  conservator  of  the  peace  and  a  justice 
of  the  peace. 

EX  OFFICIO  INFORMATION.  A  crim- 
inal information  filed  by  the  attorney-general 

ex  officio  on  behalf  of  the  crown,  in  the  court 
of  queen's  bench,  for  offences  more  imme- 
diately affecting  the  government,  and  to  be 
distinguished  from  informations  in  winch  the 
crown  is  the  nominal  prosecutor.  4  Steph. 
Com.  372. 

EX  OFFICIO  OATH.  An  oath  used  in  the 
Ecclesiastical  Courts,  by  which  the  person 
who  took  it  swore  to  make  true  answer  to  all 
such  questions  as  Bhould  be  demanded  of 
him.     Stephen,  Cr.  I'roe. 

EX  PARTE  (Lat).  Of  the  one  part. 
Many  things  may  be  done  ex  parte,  when  the 
opposite  party  has  had  notice.  An  affidavit 
or  deposition  is  said  to  be  taken  '  /  parte 
when  only  one  of  the  parties  attends  to  tak- 
ing the  same.  An  Injunction  is  grant 
parte  when  but  one  side  has  had  a  hearing. 
The  term  ex  parte  implies  an  examination  in 
the  presence  of  one  of  the  parties  ami  the  ab- 
sence of  the  other.  Lincoln  v.  Cook,  2  Sam. 
(111. i  62, 

"Ex  parte,"  in  the  title  of  a  reported  case, 
Signifies  that  the  name  following  is  that  of 
the  party  upon  whose  application  the  case  is 
heard. 

EX  PARTE  MATERNA  (Lat.).  On  the 
mother's  side.  The  words  ex  parte  materna 
and  ex  parte  paterna  have  a  well-known  m_-- 
nificatlon   in   the  law.     They   are  found   OSed 

in    the   books   to   denote   the   line,   or   bled   of 

the  mother  or  father,  and  have  no  such  re- 
stricted or  limited  sense,  as  from  the  mother 
or  father,  exclusively;  Banta  v.  Demarest, 
24  N.  J.  l-  i-"-;  -  Bla.  Cum.  224, 


EX  PARTE  PATERNA 


1104 


EX  POST  FACTO  LAW 


EX  PARTE  PATERNA  (Lat).  On  the  fa- 
ther's side.  See  Ex  Parte  Materna;  De- 
scent and  Distribution. 

EX  POST  FACTO  (Lat.).  From  or  by  an 
after  act:  by  subsequent  matter.  The  cor- 
relative term  is  ab  initio.  An  estate  granted 
may  be  made  good  or  avoided  by  matter  ex 
post  facto,  when  an  election  is  given  to  the 
party  to  accept  or  not  to  accept ;  1  Coke  146. 
A  remainderman  or  reversioner  may  confirm 
ex  post  facto  a  lease  granted  by  a  life-tenant 
to  last  beyond  his  own  life. 

EX  POST  FACTO  LAW.  A  statute  which 
would  render  an  act  punishable  in  a  manner 
in  which  it  was  not  punishable  when  it  was 
committed.  Fletcher  v.  Peck,  6  Cra.  (U.  S.) 
138,  3  L.  Ed.  162 ;    1  Kent  408. 

A  law  made  to  punish  acts  committed  be- 
fore the  existence  of  such  law,  which  had  not 
been  declared  crimes  by  preceding  laws- 
Mass.  Declar.  of  Rights,  pt.  1,  s.  24;  Md. 
Decl.  of  Rights,  art.  15. 

A  law  passed  after  the  commission  of  the 
offence  charged,  which  inflicts  a  greater  pun- 
ishment than  was  annexed  to  the  crime  at 
the  time  of  commission,  or  which  alters  the 
situation  of  the  accused  to  his  disadvantage. 
In  re  Wright,  3  Wyo.  478,  27  Pac.  565,  13  L. 
R.  A.  748,  31  Am.  St.  Rep.  94. 

A  law  which,  in  its  operation,  makes  that 
criminal  which  was  not  so  at  the  time  the 
action  was  performed ;  or  which  increases 
the  punishment,  or,  in  short,  which,  in  rela- 
tion to  the  offence  or  its  consequences,  alters 
the  situation  of  a  party  to  his  disadvantage. 
U.  S.  v.  Hall,  2  Wash.  C.  C.  366,  Fed.  Cas. 
No.  15,2S5  ;  see  Lindzey  v.  State,  65  Miss.  542, 
5  South.  99,  7  Am.  St.  Rep.  674 ;  Fletcher  v. 
Peck,  6  Cra.  (U.  S.)  87,  3  L.  Ed.  162;  Moore 
v.  State,  43  N.  J.  L.  203,  39  Am.  Rep.  558; 
Ratzky  v.  People,  29  N.  Y.  124;  Thompson 
v.  Utah,  170  U.  S.  343,  18  Sup.  Ct.  620,  42  L. 
Ed.  1061 ;  In  re  Medley,  134  U.  S.  160,  10  Sup. 
Ct.  3S4,  33  L.  Ed.  835. 

Parliament,  in  virtue  of  its  supreme  pow- 
er, may  pass  such  laws,  beiug  sustained  by 
discretion  alone ;    1  Bla.  Com.  46,  160. 

By  the  constitution  of  the  United  States, 
congress  is  forbidden  to  pass  ex  post  facto 
laws.  U.  S.  Const,  art.  1,  §  9.  And  by  §  10 
of  the  same  instrument,  as  well  as  by  the 
constitutions  of  most,  if  not  all,  of  the  states, 
a  similar  restriction  is  imposed  upon  the 
state  legislatures.  Such  an  act  is  void  as  to 
those  cases  in  which,  if  given  effect,  it  would 
be  ex  post  facto;  but  so  far  only.  In  cases 
arising  after  it,  it  may  have  effect ;  for  as  a 
rule  for  the  future,  it  is  not  ex  post  facto. 

There  is  a  distinction  between  ex  post  fac- 
to laws  and  retrospective  or  retroactive 
laws:  every  ex  post  facto  law  must  necessa- 
rily be  retrospective,  but  not  every  retrospec- 
tive law  is  an  ex  post  facto  law ;  in  general, 
ex  post  facto  laws  only  are  prohibited. 

Ex  post  facto  laws  differ  from  retroactive 
laws.     The  latter,  when  imposing  taxes  or 


providing  for  their  assessment  and  collection, 
are  not  forbidden  by  the  constitution;  the 
former,  in  that  constitution,  has  reference  to 
criminal  punishment  only;  Kentucky  Union 
Co.  v.  Kentucky,  219  U.  S.  140,  31  Sup.  Ct. 
171,  55  L.  Ed.  137.  Retrospective  laws  are 
prohibited  by  the  constitutions  of  the  states 
of  New  Hampshire  and  Ohio.  See  Rairden 
v.  Holden,  15  Ohio  St.  207;  John  v.  Bridg- 
man,  27  Ohio  St.  22;  Blackburn  v.  State,  50 
Ohio  428,  36  N.  E.  18 ;  Kring  v.  Missouri,  107 
U.  S.  221,  2  Sup.  Ct.  443,  27  L.  Ed.  506 ;  White 
v.  Wayne,  T.  U.  P.  Charlt.  94. 

It  is  fully  settled  that  the  term  ex  post 
facto,  as  used  in  the  constitution,  is  to  be 
taken  in  a  limited  sense  as  referring  to  crim- 
inal or  penal  statutes  alone,  and  that  the 
policy,  the  reason,  and  the  humanity  of  the 
prohibition  against  passing  ex  post  facto 
laws  do  not  extend  to  civil  cases,  to  cases 
that  merely  affect  the  private  property  of 
citizens.  But  the  prohibition  cannot  be  evad- 
ed by  giving  a  civil  form  to  what  is,  in  sub- 
stance, criminal ;  Cummings  v.  Missouri,  4 
Wall.  (U.  S.)  277,  18  L.  Ed.  356 ;  In  re  Gar- 
land, 4  Wall.  (U.  S.)  333,  18  L.  Ed.  366 ;  Bur- 
gess v.  Salmon,  97  U.  S.  385,  24  L.  Ed.  1104 ; 
Green  v.  Shumway,  39  N.  Y.  41S ;  Hare,  Am. 
Const.  L.  547.  Divorce  not  being  a  punish- 
ment may  be  authorized  for  causes  happen- 
ing previous  to  the  passage  of  the  divorce 
act;   Carson  v.  Carson,  40  Miss.  349. 

The  constitution  does  not  prohibit  the 
states  from  passing  retrospective  laws  gen- 
erally. Some  of  the  most  necessary  acts  of 
legislation  are,  on  the  contrary,  founded  up- 
on the  principles  that  private  rights  must 
yield  to  public  exigencies ;  Carpenter  v.  Penn- 
sylvania, 17  How.  (U.  S.)  463,  15  L.  Ed.  127 ; 
Watson  v.  Mercer,  8  Pet.  (U.  S.)  88,  8  L.  Ed. 
876 ;  Charles  River  Bridge  v.  Warren  Bridge, 
11  Pet.  (U.  S.)  421,  9  L.  Ed.  773 ;  Satterlee  v. 
Matthewson,  2  Pet.  (U.  S.)  3S0,  7  L.  Ed.  458 ; 
Bank  of  Hamilton  v.  Dudley,  2  Pet.  (U.  S.) 
523,  7  L.  Ed.  490;  Dash  v.  Van  Kleeck,  7 
Johns.  (N.  Y.)  4S8,  5  Am.  Dec.  291 ;  Com.  v. 
Lewis,  6  Binn,  (Pa.)  271 ;  Wellshear  v.  Kel- 
ley,  69  Mo.  343 ;  United  States  Mortg.  Co.  v. 
Gross,  93  111.  483 ;  Cooley,  Const.  Lim.  265 ; 
Callahan  v.  Callahan,  36  S.  C.  454,  15  S.  E. 
727.  See  Drake  v.  Jordan,  73  la.  707,  36  N. 
W.  653 ;  Campbell  v.  Manderscheid,  74  la. 
70S,  39  N.  W.  92. 

Test  oaths  of  past  loyalty  to  the  govern- 
ment have  been  held  void  as  ex  post  facto; 
In  re  Garland,  4  Wall.  (U.  S.)  333,,  18  L.  Ed. 
366 ;  except  as  pre-requisites  to  the  exercise 
of  the  elective  franchise ;  Green  v.  Shum- 
way, 39  N.  Y.  418.  A  law  prohibiting  the 
sale  of  intoxicating  liquors  is  not  ex  post 
facto,  State  v.  Paul,  5  R.  I.  1S5 ;  or  a  law 
imposing  a  retrospective  tax ;  Bonny  v.  Reed, 
31  N.  J.  L.  133;  Stockdale  v.  Ins.  Co.,  20 
Wall.  (U.  S.)  323,  22  L.  Ed.  348;  see,  Car- 
penter v.  Pennsylvania,  17  How.  (U.  S.)  456, 
15  L.   Ed-   127 ;    Pullen  v.  Com'rs  of  Wake 


EX  POST  FACTO  LAW 


1105 


EX  POST  FACTO  LAW 


County,  GG  N.  C.  3G1;  or  a  law  providing  for 
the  infliction  of  the  death  penalty  by  means 
of  electricity  which  did  not  apply  to  crimes 
committed  before  it  took  effect;  People  v. 
Nolan,  115  N.  Y.  6G0,  21  N.  E.  10G0;  or  a 
law  authorizing  a  divorce  for  past  offences; 
Carson  v.  Carson,  40  Miss.  349;  Clark  v. 
Clark,  10  N.  H.  380,  34  Am.  Dec.  105 ;  com- 
pare Dickinson  v.  Dickenson,  7  N.  C.  ■>-~,  9 
Am.  Dec.  60S ;  or  a  law  providing  that  the 
punishment  of  future  crimes  shall  be  in- 
creased by  reason  of  past  offences;  State  v. 
Woods,  68  Me.  409. 

Statutes  providing  for  the  revocation  of 
licenses  of  physicians  of  had  moral  character 
by  state  boards  have  been  questioned  as  be- 
ing ex  post  facto,  hut  the  ease  of  People  v. 
Hawker,  152  N.  Y.  23 1,  4G  N.  E.  GOT,  affirmed 
Hawker  v.  New  York,  170  U.  S.  1S9,  18  Sup. 
Ct.  573,  42  L.  Ed.  1002,  is  said  to  have  set- 
tled that  they  are  not;  People  v.  Reetz,  127 
Mich.  87,  86  N.  W.  30G,  affirmed  Reetz  v. 
Michigan,  1SS  U.  S.  505,  23  Sup.  Ct.  300,  47 
L.  Ed.  5G3;  Meffert  v.  Board  of  Medical  Reg- 
istration, 66  Kan.  710,  72  Pac.  247,  1  L.  R.  A. 
(N.  S.)  811,  affirmed  Meffert  v.  Packer,  195 
TJ.  S.  625,  25  Sup.  Ct  790,  49  L.  Ed.  350.  See 
Police  Power. 

Where  an  act  provided  that  one  who  has 
been  convicted  of  crime  shall  no  longer  en- 
gage in  the  practice  of  medicine,  it  was 
held  not  to  be  an  additional  punishment  for 
past  offences  or  ex  post  facto,  but  that  it  sim- 
ply prescribed  the  qualifications  for  the  posi- 
tion and  the  appropriate  evidence  of  such 
qualification ;  Hawker  v.  New  York,  170  U. 
S.  189,  18  Sup.  Ct.  573,  42  L.  Ed.  1002. 

Corporations  cannot  pass  ex  post  facto  by- 
laws ;  People  v.  Fire  Dept,  31   Mich.  458. 

Laws  under  the  following  circumstances 
are  to  be  considered  ex  post  facto  laws  with- 
in the  words  and  intent  of  the  prohibition: 
1.  Every  law  that  makes  an  action  dune,  lie- 
fore  the  passing  of  the  law,  and  which  was 
innocent  when  done,  criminal,  and  punishes 
such  action.  2.  Every  law  that  aggravates 
a  crime,  or  makes  it  greater  than  it  was  when 
committed.  3.  Every  law  that  changes  the 
punishment  and  inflicts  a  greater  punish- 
ment than  the  law  annexed  to  the  crime  when 
committed  (though  it  would  be  otherwise  of 
a  law  mitigating  the  punishment;  3  Story, 
Const.  212).  4.  Every  law  that  alters  the  le- 
gal rules  of  evidence,  and  receives  less,  or 
different,  testimony  than  the  law  required  at 
the  time  of  the  commission  of  the  offence,  in 
order  to  convict  the  offender ;  Calder  v.  Bull, 
3  Dall.  (U.  S.)  390.  1  L.  Ed.  G4S.  This  con- 
struction, it  is  said,  "has  been  accepted  and 
followed  as  correct  by  the  courts  ever  since" ; 
Cooley,  Const.  Lim.  325 ;  its  substance  re- 
mains unchanged;  Com.  v.  Kalck,  239  Pa. 
533,  S7  Atl.  61.  See  People  v.  McNulty,  93 
Cal.  427,  26  Pac.  597,  29  Pac.  61;  Com.  v. 
Graves,  155  Mass.  163,  29  N.  E.  579,  16  L.  R. 
A.  256. 

This     classification     has     been     generally 

Bouv.— 70 


adopted  as  accurate  and  complete,  but  is  not 
entirely  so.  Thus  a  law  has  been  decided  to 
be  ex  post  facto  which  was  intended  to  pun- 
ish a  criminal  act,  prosecution  as  to  which 
was  already  barred  by  a  statute  of  limita- 
tions; Moore  v.  State,  4o  N.  J.  L.  203,  39  Am. 
Rep.  558  ;  but  an  act  which  reduces  a  pun- 
ishment is  not  ex  post  farto  as  to  crimes 
muted    prior    to    Its    enactment;     People    v. 

.  140  N.  Y.  484,  35  N.  E.  951,  23  L.  E. 

i,  37  Am.  St.  Rep.  572  ;    St 
65    N.    C.   311;    Dolan    v.    Thomas,    lli 

.  421;    Mclnturf  v.  Stai  A  pp. 

335.     The  statement  under  the  fourth 
also  requires  modification.     Convictions  un- 
der  changes   In    the   rules    of   evidence    have 
been    held    not   unconstitutional;     Sto 
People,  53  N.  Y.  164,  L3  Am.  Rep.  492; 
quins  v.  Com.,  9  Cush.  (Mass.i  UT'J  ;    State  v. 
Williams,    11    Rich.    (S.    C.)    281  ;     Mr< 
Slate,  31  Tex.  Or.    R.  597,  21   S.   \V.  764,  37 
Am.  St.  Rep.  834;  Magular  v.  Henry.  84  K, 
l,  4  Am.  St.  Rep.  182;   Robinson  v.  Sta 
Ind.  452:    Thompson  v.  Missouri,  171   0.   B. 
380,  is  Sup.  Ct.  922,  \S  L.  Ed.  204;  th<   . 
seems  to  be  settled  that  a  law  requiring  a 
less  degree  of  evidence  cannot  be  applied  to 
a    previous    offence.      But    changes    in    the 
forms,  in  the  manner  of  passing  sentei 
the  qualifications  of  jurors,  do  not  fall  with- 
in the  prohibition;    Cum.  v.  Phillips.  11  Pick. 
(Mass.)  28;    Lybarger  v.  State,  2  Wash 
27  Pac.  449,  1020 ;    In  re  Wright,  3  Wyo.  478, 
27  Pac.  565,  13  L.  R.  a.  748,  31  Am.  St.  Rep. 
94;    City  Council  of  Anderson  v.  O'DonnelL 
29  S.  C.  355,  7  S.  E.  523,  1  L.  R.  A.  632,  13 
Am.  St   Rep.  72S;    nor  will  a  provision  re- 
ducing the  number  of  peremptory  challenges 
on  a  prosecution  for  a  capital  offence,  though 
applied  to  eases  where  the  offence  was 
mitted  before  the  change  was  made;    Matins 
v.  State,  31  Ida.  29L   12  South.  681; 
v.   state,  86  Ala.  617,  6  South.  52;  nor  an 
amendment  which   confers  jurisdiction   in   a 
criminal    cause    upon    a    division    of   the   su- 
preme court  less  in  numbers  and  different  in 
personnel  from  the  court  as  organized  when 
the  crime   was   committed;     Duncan   v.    Mis- 
souri, 152  U.  S.  377,  l  1  sup.  Ct  570,  38  I..  Ed. 
485.     A  i  hange  of  criminal  procedure  applied 
to   the   trial   of   crimes   committed    before    it 
took  effect  is  not  c.r  post  facto,  unless  it  af- 
fects some  substantial   right   to    which   the 
■•1    was    entitled    when    the   alleged    Of- 
Cence  was  i  ommitted;   state  v.  carter.  3 
Ann.  1214;    Kring  V.  Missouri,  107  D.  S.  221, 
2  sup.  Ct  443,  27  L.  Ed. 

statutes  regulating  pro<  dure,  if  they  leave 
untouched  all  the  substantial  prob 
with  which  existing  law  surrounds  the  per- 
son accused  of  crime,  are  not  within  the  con- 
stitutional Inhibition;  Duncan  v.  Missouri. 
152  r.  s.  378,  11  sup.  Ct  570,  38  L.  Ed.  485; 
Thompson  V.  Missouri.  171  U.  S.  380,  18  Sup. 
Ct  922,  43  L.  Ed.  204.  A  statute  admitting 
evidence  of  a  particular  kind  in  a  criminal 
case  upon  an  issue  of  fact,  which  was  not 


EX  POST  FACTO  LAW 


1106 


EX  POST  FACTO  LAW 


admissible  under  the  rules  of  evidence  at  the 
time  the  offence  was  committed,  is  not  ex 
post  facto;  Thompson  v.  Missouri,  171  U.  S. 
3S0,  18  Sup.  Ct.  922,  43  L.  Ed.  204 ;  though  in 
his  classification  of  ex  post  facto  laws  Mr. 
Justice  Chase,  in  Calder  v.  Bull,  3  Dall.  (U. 
S.)  3S6,  1  L.  Ed.  648,  includes  every  law  that 
alters  the  legal  rules  of  evidence,  and  re- 
quires less  or  different  testimony  than  the 
law  required  at  the  time  of  the  commission 
of  the  offence  in  order  to  convict  the  offender. 

In  Missouri,  after  conviction  of  a  capital 
offence  and  verdict  set  aside  because  of  the 
admission  of  papers  for  comparison  of  hand- 
writing merely,  the  legislature  changed  the 
law  so  as  to  admit  such  papers;  on  a  new 
trial,  it  was  held  merely  a  change  of  a  rule 
of  evidence,  which  could  be  applied  in  the 
trial  of  an  offence  committed  before  its  enact- 
ment;  Thompson  v.  Missouri,  171  U.  S.  380, 
18  Sup.  Ct.  922,  43  L.  Ed.  204. 

The  supreme  court  of  the  United  States 
has  decided  that  a  constitutional  provision, 
requiring  all  grand  and  petit  jurors  to  be 
qualified  electors,  able  to  read  and  write,  and 
enjoining  on  the  legislature  to  provide  by  law 
for  listing  and  drawing  persons  so  qualified, 
but  declaring  that,  until  otherwise  provided 
by  law,  all  crimes  should  be  tried  as  though 
no  change  had  been  made  (Const.  Miss.  1S90), 
went  into  effect  immediately  on  its  adoption, 
so  far  as  the  qualifications  of  jurors  were 
concerned ;  that  one  who  committed  a  crime 
after  the  adoption  of  the  constitution,  but 
before  the  legislature  passed  a  new  jury  law, 
could  be  tried,  after  the  passage  of  such  a 
law,  by  a  jury  selected  under  its  provisions; 
and  that,  as  the  new  law  did  not  aggravate 
the  crime  previously  committed,  or  inflict  a 
greater  punishment,  or  alter  the  rules  of  evi- 
dence, its  application  to  the  trial  of  the  ac- 
cused did  not  make  it  an  ex  post  facto  law; 
Gibson  v.  Mississippi,  162  U.  S.  565,  16  Sup. 
Ct.  904,  40  L.  Ed.  1075.  But  where  the  consti- 
tution of  Utah  provided  for  the  trial  in 
courts  of  general  jurisdiction  of  criminal  cas- 
es not  capital  by  a  jury  of  eight,  it  was  held 
ex  post  facto  in  its  application  to  felonies 
committed  before  the  territory  became  a 
state,  because  the  constitution  of  the  United 
States,  gave  the  accused,  at  the  time  of  the 
commission  of  the  offence,  the  right  to  be 
tried  by  a  jury  of  twelve  persons,  and  made 
it  unlawful  to  deprive  him  of  his  liberty  ex- 
cept by  the  unanimous  verdict  of  such  a  jury  ; 
Thompson  v.  Utah,  170  U.  S.  343,  18  Sup.  Ct. 
620,  42  L.  Ed.  1061. 

For  a  review  of  the  history  of  the  ex  post 
facto  clause  of  the  constitution  in  connection 
with  its  adoption,  and  with  its  subsequent 
construction  by  the  federal  and  state  courts, 
see  Kring  v.  Missouri,  107  U.  S.  221,  2  Sup. 
Ct.  443,  27  L.  Ed.  506. 

See  also  In  re  Medley,  134  U.  S.  160,  10 
Sup.  Ct.  3S4,  33  L.  Ed.  835;  Cooley,  Const. 
Lim.  ch.  ix. ;  Sto.  Const.  §§  1345,  1373 ;  Wade, 


Retro.  L. ;  Pat.  Fed.  Restr.  ch.  vi. ;  Johnson, 
Ex  Post  Facto  Laws ;  Black,  Const.  Prohibi- 
tions ;  Pomeroy,  Const.  Law ;  4  L.  Mag.  & 
Rev.,  4th  59 ;  Savigny,  Confl.  Laws ;  22  Am. 
L.  Rev.  523 ;  Myer,  Vested  Rights;  3  L.  R.  A. 
181,  note ;  1  L.  R.  A.  632,  note ;  Fisher,  Evo- 
lution of  Const. ;    Retrospective. 

EX  PR0PRI0  M0TU  (Lat).  Of  his  own 
accord. 

EX  PR0PRI0  VIG0RE  (Lat.).    By  its  own 

force.    2  Kent  457. 

EX  REL.    See  Ex  Relatione. 

EX  RELATIONE  (Lat.).  At  the  informa- 
tion of ;  by  the  relation.  A  bill  in  equity,  for 
example,  may  in  many  cases  be  brought  for 
an  injunction  to  restrain  a  public  nuisance 
ex  relatione  (by  information  of)  the  parties 
immediately  interested  in  or  affected  by  the 
nuisance ;  18  Ves.  217 ;  Van  Bergen  v.  Van 
Bergen,  2  Johns.  Ch.  (N.  Y.)  3S2 ;  Corning  v. 
Lowerre,  6  Johns.  Ch.  (N.  Y.)  439;  Pennsyl- 
vania v.  Bridge  Co.,  13  How.  (U.  S.)  518,  14 
L.  Ed.  249 ;  Georgetown  v.  Canal  Co.,  12  Pet. 
(U.  S.)  91,  9  L.  Ed.  1012. 

It  is  frequently  abbreviated  ex  rel.  See 
Relator. 

EX  TEMPORE  (Lat).  From  the  time; 
without  premeditation. 

EX  VI  TERMINI  (Lat.).  By  force  of  the 
term. 

EX  VISCERIBUS  (Lat.  from  the  bowels). 
From  the  vital  part,  the  very  essence  of  the 
thing.  10  Co.  24:0;  Homer  v.  Shelton,  2 
Mete.  (Mass.)  213.  Ex  visceribus  verborum 
(from  the  mere  words  and  nothing  else) ;  1 
Story,  Eq.  §  980. 

EX  VISITATIONE  DEI  (Lat).  By  or 
from  the  visitation  of  God.  In  the  ancient 
law,  upon  a  prisoner  arraigned  for  treason  or 
felony  standing  mute,  a  jury  was  impanelled 
to  inquire  whether  he  stood  obstinately  mute, 
or  was  dumb  ex  visitatione  Dei;  4  Steph. 
Com.  391.  This  phrase  is  frequently  employ- 
ed in  inquisitions  by  the  coroner,  where 
it  signifies  that  the  death  of  the  deceased  is 
a  natural  one. 

EXACTION.  A  wilful  wrong  done  by  an 
officer,  or  by  one  who,  under  color  of  his  of- 
fice, takes  more  fee  or  pay  for  his  services 
than  the  law  allows. 

Between  extortion  and  exaction  there  is  this  dif- 
ference: that  in  the  former  case  the  officer  extorts 
more  than  his  due,  when  something  is  due  to  him  ; 
in  the  latter,  he  exacts  what  is  not  his  due,  when 
there  is  nothing  due  to   him.     Co.   Litt.   36S. 

EXACTOR.  In  Old  English  and  Civil  Law. 
A  collector.  Exactor  regis  (collector  for  the 
king).  A  collector  of  taxes  or  revenue.  Vicat, 
Voc.  Jur. ;  Spelman,  Gloss.  The  term  exac- 
tion early  came  to  mean  the  wrong  done  by 
an  officer,  or  one  pretending  to  have  author- 
ity, in  demanding  or  taking  any  reward  or 
fee  for  that  matter,  cause,  or  thing  which  the 
law  allows  not.    Tenncs  de  la  Ley. 


EXAMINATION 


1107 


EXAMINi 


EXAMINATION.  In  Criminal  Law.  The 
investigation  by  an  authorized  magistrate 
of    the    eircuins  which    constitute    the 

grounds  for  an  accusation  against  a  person 
arrested  on  a  criminal  charge,  with  a  view 
to  discharging  the  person  so  arrested,  or  to 
securing  his  appearance  for  trial  by  the 
proper  court,  and  to  preserving  the  evideuce 
relating  to  the  matter. 

Practically,  it  is  accomplished  by  bringing  the 
person  accused,  together  with  witnesses,  before  a 
magistrate  (generally  a  justice  of  the  peace),  who 
thereupon  takes  down  in  writing  the  evidence  of  the 
witnesses,  and  any  statements  which  the  prisoner 
may  see  fit  to  make.  If  no  cause  for  detention 
appears,  the  party  is  discharged  from  arrest.  If 
sufficient  cause  of  suspicion  appears  to  warrant 
putting  him  on  trial,  he  is  committed,  or  required 
to  give  bail  or  enter  into  a  recognizance  to  appear 
at  the  proper  time  for  trial.  The  witnesses  are  also 
frequently  required  to  recognize  for  their  appear- 
ance ;  though  in  ordinary  cases  only  their  own  re- 
cognizance is  required.  The  magistrate  signs  or 
certifies  the  minutes  of  the  evidence  which  he  has 
taken,  and  it  is  delivered  to  the  court  before  whom 
the  trial  is  to  be  had.  The  object  of  an  examination 
is  to  enable  the  judge  and  jury  to  see  whether  the 
witnesses  are  consistent,  and  to  ascertain  whether 
the  offence  is  bailable.  2  Leach  552.  And  see  i 
Sharsw.  Bla.   Com.  296. 

At  common  law,  the  prisoner  could  not  be 
interrogated  by  the  magistrate;  but  under 
the  statutes  1  &  2  Phil.  &  M.  c.  13,  2  &  3 
.Phil.  &  M.  c.  10,  the  provisions  of  which 
have  been  substantially  adopted  in  most  of 
the  states,  the  magistrate  is  to  examine  the 
prisoner  as  well  as  the  witnesses.  1  Greenl. 
Ev.  §  224;  4  Bla.  Com.  200;  Rose.  Cr.  Ev.  44; 
By.  &  M.  432. 

The  examination  should  be  taken  and  com- 
pleted as  soon  as  the  nature  of  the  case  will 
admit;  Cro.  Eliz.  820;  1  Hale,  PI.  Cr.  5S5 ; 
2  id.  120.  The  prisoner  must  not  be  put  up- 
on oath,  but  the  witnesses  must ;  1  Phil.  Ev. 
10G;  Archb.  Cr.  Pr.  &  PI.  380.  The  prisoner 
formerly  had  no  right  to  the  assistance  of 
an  attorney ;  but  the  privilege  was  granted 
at  the  discretion  of  the  magistrate;  2  Dowl. 
&  R.  80 ;  1  B.  &  C.  37.  Now,  however,  a  pris- 
oner is  permitted  to  have  counsel  as  a  mat- 
ter of  course.  The  magistrate's  return  and 
certificate  are  conclusive  evidence,  and  ex- 
clude parol  evidence,  of  what  the  prisoner 
said  on  that  occasion  with  reference  to  the 
charge;  2  C.  &  K.  223;  5  C.  &  P.  102;  1  Mood. 
&  M.  403.     See  Confession;   Recognizance. 

In  Practice.  The  interrogation  of  a  wit- 
ness, in  order  to  ascertain  his  knowledge  as 
to  the  facts  in  dispute  between  parties. 

The  examination  in  chief  is  that  made  by 
the  party  calling  the  witness;  the  cross-ex- 
amination is  that  made  by  the  other  party. 
In  the  examination  in  chief  the  counsel  can- 
not ask  leading  questions,  except  in  particu- 
lar cases.  See  Cross-Examination  ;  Leading 
Questions. 

The  examination  Is  to  be  made  in  open  court, 
when  practicable ;  but  when,  on  account  of  age, 
sickness,  absence  from  the  jurisdiction,  or  other 
cause,  the  witness  cannot  be  so  examined,  I 
civil  causes  It  may  be  made  before  authorized 
commissioners. 


The  interrogation  of  a  ho  Is  de- 

sirous  •  ae   act,    or   availing 

of  the  law.    in  or- 
der   to    ascertain    if   all    the    req'lir 
the  law  have  been  complied   with,   i 
by  and  before  an  officer  havii 
the  purpose. 

There  are  many  acts  which  can  be  of  validity  and 
binding  force  only   upon  an 

many    states,   a   married  woman    must    be   privately 
examined  as  to  whether  she  has  ^  .  nnsent 

freely  and  without  restraint  to  a  d<  he  ap- 

pears to  have  executed  ;    see  A 
insolvent  who  wishes  to  take  tl 
vent   laws,   one  who   Is   about  to   t. 
another  in  legal  proceedings,  a  bankrupt,  etc  . 
submit  to  an  examination. 

EXAMINED  COPY.  A  phrase  applied  to 
designate  a  paper  which  is  a  copy  uf  a  rec- 
ord, public  book,  or  register,  and  which  has 
been  compared  with  the  original.  1  Campb. 
469. 

Such   examined   copy   is  admitted   in   evi- 
dence,  because  of  the  public  inconven 
which    would    arise    if    such    record,    public 
book,   or   register  were  removed   from 
to  place,  and  because  any  fraud  or  mistake 
made  in  the  examined  copy  would  be  Bi 
ly  detected;  1  Greenl.  Ev.  §  01  ;  1  Stark.  Ev. 
180.    But  in  an  answer  in  chancery  on  which 
the  defendant  was  indicted    for    ! 
where  the  original  must  be  produced  in  order 
to  identify  the  party  by   proof  of  handwrit- 
ing, an  examined  copy  would  not  be  evidence; 
1  Mood.  &  R.  ISO.     See  Copy. 


EXAMINERS. 
cial  Examiner. 


See    Examination; 


EXAMINERS  IN  CHANCERY.  Officers 
who  examine,  upon  oath,  witnesses  produced 
on  either  side  upon  such  Interrogatories  as 
the  parties  to  any  suit  exhibit  for  that  pur- 
pose.   Cowell. 

The  examiner  is  to  administer  an  oath  t<> 
the  party,  and  then  repeat  the  Interrogatories 
one  at  a  time,  writing  down  the  answer 
himself;  2  Dan.  Ch.  Pr.  1062.  Anciently, 
the  examiner  was  one  of  the  judges  of  the 
court:  hence  an  examination  before  the  ex- 
aminer is  said  to  be  an  examination  in 
court;  1  Dan.  Ch.  Pr.  1053. 

EXANNUAL  ROLL.    A  roll  containing  the 

illevialile  lines  and  desperate  debts,  which 
was  read  Nearly  to  the  sheriff  tin  the  an- 
cient way  of  delivering  the  sheriffs  ac- 
counts), to  see  what  might  be  gotten.  Hale, 
Sheriffs  67;  CowelL 

EXCAMB.  In  Scotch  Law.  To  exchange. 
Excambion,  exchange  The  words  are  evi- 
dently derived  from  the  Latin  ewcattlbium. 
Bell,  Diet     See  Exchange. 

EXCAMBIATOR.     An  exchanger  of  1 
a  broker.    Obsolete. 

EXCAMBIUM  (Lat).  In  English  Law. 
Exchange;    a    recompense.     1    Reeve,    Hist 

Kng.    Law  4112. 


EXCELLENCY 


1108 


EXCEPTION 


EXCELLENCY.  A  title  given  by  courtesy 
to  the  governors  of  the  states,  to  the  Presi- 
dent of  the  United  States,  and  to  ambassa- 
dors. 

EXCEPTIO  REI  JUDICAT/E.  A  Roman 
law  term  equivalent  to  a  plea  of  former 
judgment.     Bigelow,  Estoppel  41. 

EXCEPTION  (Lat  excipere:  ex,  out  of, 
capere,  to  take).  A  clause  in  a  deed  by 
which  the  lessor  excepts  something  out  of 
that   which  he  before  granted  by  the  deed. 

The  exclusion  of  something  from  the  ef- 
fect or  operation  of  the  deed  or  contract 
which  would  otherwise  be  included. 

An  exception  differs  from  a  reservation  (q.  v.),— 
the  former  being  always  of  part  of  the  thing  grant- 
ed, the  latter  of  a  thing  not  in  esse,  but  newly  cre- 
ated or  reserved ;  the  exception  is  of  the  whole  of 
the  part  excepted ;  the  reservation  may  be  of  a 
risht  or  interest  in  *he  particular  part  affected  by 
the  reservation.  See  Ballou  v.  Harris,  5  R.  I.  419  ; 
Hammond  v.  Woodman,  41  Me.  177,  66  Am.  Dec.  219  ; 
State  v.  Wilson,  42  Me.  9  ;  Adams  v.  Morse,  51  Me. 
498;  Gould  v.  Glass,  19  Barb.  (N.  Y.)  192;  2  B.  & 
C.  197.  The  two  words,  however,  are  often  used 
indiscriminately;  Stockwell  v.  Couillard,  1l9  Mass. 
231  ;  Barnes  v.  Burt,  38  Conn.  541.  An  exception 
differs,  also,  from  an  explanation,  which,  by  the  use 
of  a  videlicet,  proviso,  etc.,  is  allowed  only  to  ex- 
plain doubtful  clauses  precedent,  or  to  separate  and 
distribute  generals  into  particulars ;  Cutler  v. 
Tufts,  3  Pick.  (Mass.)  272.     See  Reservation. 

To  make  a  valid  exception,  these  things 
must  concur :  first,  the  exception  must  be 
by  apt  words,  as,  "saving  and  excepting," 
etc. ;  see  Keeler  v.  Wood,  30  Vt.  242 ;  Ballou 
v.  Harris,  5  R.  I.  419;  Hammond  v.  Wood- 
man, 41  Me.  177,  66  Am.  Dec.  219;  Midgett 
v.  Wharton,  102  N.  C.  14,  8  S.  E.  778 ;  second, 
it  must  be  of  part  of  the  thing  previously 
described,  and  not  of  some  other  thing; 
third,  it  must  be  of  part  of  the  thing  only, 
and  not  of  all,  the  greater  part,  or  the  ef- 
fect of  the  thing  granted ;  Richardson  v.  Mil- 
burn,  11  Md.  339;  Adams  v.  Warner,  23  Vt. 
395 ;  an  exception,  therefore,  in  a  lease  which 
extends  to  the  whole  thing  demised  is  void; 
fourth,  it  must  be  of  such  thing  as  is  severa- 
ble from  the  demised  premises,  and  not  of  an 
inseparable  incident ;  Backenstoss  v.  Stahler's 
Adm'rs,  33  Pa.  251,  75  Am.  Dec.  592;  Good- 
rich v.  R.  R.,  37  N.  H.  167;  fifth,  it  must  be 
of  such  a  thing  as  he  that  excepts  may  have, 
and  which  properly  belongs  to  him ;  sixth, 
it  must  be  of  a  particular  thing  out  of  a  gen- 
eral, and  not  of  a  particular  thing  out  of  a 
particular  thing ;  seventh,  it  must  be  particu- 
larly described  and  set  forth ;  a  lease  of  a 
tract  of  land  except  one  acre  would  be  void, 
because  that  acre  was  not  particularly  de- 
scribed ;  Co.  Litt.  47  a;  Hay  v.  Storrs,  Wright 
(Ohio)  711;  Jackson  v.  Hudson,  3  Johns. 
(N.  Y.)  375,  3  Am.  Dec.  500;  Darling  v. 
Crowell,  6  N.  H.  421;  Altman  v.  McBride,  4 
Strobh.  (S.  C.)  208;  see  Painter  v.  Water 
Co.,  91  Cal.  74,  27  Pac.  539.  Exceptions 
against  common  right  and  general  rules  are 
construed  as  strictly  as  possible ;  Hays  v. 
Askew,  50  N.  C.  63.     When  a  grantor  makes 


a  valid  exception,  the  thing  excepted  remains 
the  property  of  himself  or  his  heirs;  but  if 
he  has  no  valid  title  to  it,  neither  he  nor 
his  heirs  can  recover ;  Fisher  v.  Min.  Co.,  97 
N.  C.  95,  4  S.  E.  772. 

In  Equity  Practice.  The  allegation  of  a 
party,  in  writing,  that  some  pleading  or  pro- 
ceeding in  a  cause  is  insufficient 

In    Civil   Law.     A   plea.     Merlin,   Rupert. 

Declinatory  exceptions  are  such  dilatory 
exceptions  as  merely  decline  the  jurisdiction 
of  the  judge  before  whom  the  action  is 
brought.     La.  Code  Proc. 

Dilatory  exceptions  are  such  as  do  not 
tend  to  defeat  the  action,  but  only  to  retard 
its  progress. 

Declinatory  exceptions  have  this  effect,  as  well 
as  the  exception  of  discussion  offered  by  a  third 
possessor  or  by  a  surety  in  an  hypothecary  action, 
or  the  exception  taken  in  order  to  call  in  the  war- 
rantor. Noble  v.  Martin,  7  Mart.  N.  S.  (La.)  282 ; 
Howard  v.   The  Columbia,  1  La.   420. 

Peremptory  exceptions  are  those  which 
tend  to  the  dismissal  of  the  action. 

Some  relate  to  forms,  others  arise  from  the  law. 
Those  which  relate  to  forms  tend  to  have  the  cause 
dismissed,  owing  to  some  nullities  in  the  proceed- 
ings. These  must  be  pleaded  in  limine  litis.  Per- 
emptory exceptions  founded  on  law  are  those  which, 
without  going  into  the  merits  of  the  cause,  show 
that  the  plaintiff  cannot  maintain  his  action,  either 
because  it  is  prescribed,  or  because  the  cause  of 
action  has  been  destroyed  or  extinguished.  These 
may  be  pleaded  at  any  time  previous  to  definitive 
judgment ;  Pothier.  Proc.  Civ.  pt.  1,  c.  2,  ss.  1,  2,  3. 
These,  in  the  French  law,  are  called  Fins  de  non 
recevoir. 

In  Practice.  Objections  made  to  the  deci- 
sions of  the  court  in  the  course  of  a  trial. 
See  Bill  of  Exception. 

EXCEPTION  TO  BAIL.  An  objection  to 
the  special  bail  put  in  by  the  defendant  to 
an  action  at  law  made  by  the  plaintiff  on 
grounds  of  the  insufficiency  of  the  bail.  1 
Tidd,  Pr.  255. 

EXCESS.  When  a  defendant  pleaded  to 
an  action  of  assault  that  the  plaintiff  tres- 
passed on  his  land,  and  he  would  not  depart 
when  ordered,  whereupon  he  molliter  manus 
imposuit,  gently  laid  hands  on  him,  the  repli- 
cation of  excess  was  to  the  effect  that  the 
defendant  used  more  force  than  necessary. 
Wharton. 

EXCESSIVE  BAIL.  Bail  which  is  perse 
unreasonably  great  and  clearly  dispropor- 
tionate to  the  offence  involved,  or  which  un- 
der the  peculiar  circumstances  appearing  is 
shown  to  be  so  in  the  particular  case.  Ex 
parte  Ryan,  44  Cal.  558;  Ex  parte  Duncan, 
53  Cal.  410. 

EXCHANGE.  In  Commercial  Law.  A  ne- 
gotiation by  which  one  person  transfers  to 
another  funds  which  he  has  in  a  certain 
place,  either  at  a  price  agreed  upon  or  which 
is  fixed  by  commercial  usage. 

This  transfer  is  made  by  means  of  an  instrument 
which  represents  such  funds  and  is  well  known  by 
the  name  of  a  bill  of  exchange  (q.  v.).  The  price 
above  the  par  value  of  the  funds  so  transferred   i» 


EXCHANGE 


1109 


EXCHANGE 


called  the  premium  of  exchange,  and  If  under  that 
value  the  difference  is  called  the  discount,— either 
being  called  the  rate  of  exchange. 

The  par  of  exchange  is  the  value  of  the 
money  of  one  country  in  that  of  another, 
and  is  either  real  or  nominal.  The  nominal 
par  is  that  which  has  been  fixed  by  law  or 
usage,  and,  for  the  sake  of  uniformity,  is 
not  altered,  the  rate  of  exchange  alone 
fluctuating.  The  real  par  is  that  based  on 
the  weight  and  fineness  of  the  coins  of  the 
two  countries,  and  fluctuates  with  changes 
in  the  coinage.  The  nominal  par  of  exchange 
in  this  country  on  England,  settled  in  1799 
by  act  of  congress,  was  four  dollars  and  for- 
ty-four cents  for  the  pound  sterling;  but  by 
successive  changes  in  the  coinage  this  value 
has  been  increased,  the  real  mint  par  at 
present  being  $4,866%.  The  course  of  ex- 
change means  the  quotations  for  any  given 
time. 

The  transfer  of  goods  and  chattels  for  oth- 
er goods  and  chattels  of  equal  value.  This 
is  more  commonly  called  barter.  Where  a 
party  deposits  wheat  with  a  mill  company, 
expecting  to  receive  a  proportionate  amount 
of  flour,  it  constitutes  an  exchange  and  not 
a  sale;  Martin  v.  Mill  Co.,  49  Mo.  App.  23. 
One  cannot,  as  having  been  defrauded  there- 
by, rescind  an  exchange  of  property,  without 
tendering  a  return  of  his  property  to  the 
other,  unless  it  is  absolutely  worthless; 
Johnson  v.  Flynn,  97  Mich.  581,  56  N.  W.  939. 
The  distinction  between  a  sale  and  ex- 
change of  property  is  rather  one  of  shadow 
than  of  substance.  In  both  cases  the  title 
to  property  is  absolutely  transferred,  and 
the  same  rules  of  law  are  applicable  to  the 
transaction,  whether  the  consideration  of  the 
contract  is  money  or  by  way  of  barter.  It 
can  make  no  essential  difference  in  the  rights 
and  obligations  of  parties  that  goods  and 
merchandise  are  transferred  and  paid  for  by 
other  goods  and  merchandise  instead  of  by 
money,  which  is  but.  the  representative  of 
value  or  property;  Com.  v.  Clark,  14  Gray 
(Mass.)    372. 

The  profit  which  arises  from  a  maritime 
loan,  when  such  profit  is  a  percentage  on 
the  money  lent,  considering  it  in  the  light 
of  money  lent  in  one  place  to  be  returned 
in  another,  with  a  difference  in  amount  in 
the  sum  borrowed  and  that  paid,  arising 
from  the  difference  of  time  ami  place.  The 
term  is  commonly  used  in  this  sense  by 
French  writers.     Hall,  Mar.   Loans  5C>,  n. 

The  place  where  merchants,  captains  of 
vessels,  exchange-asents,  brokers,  etc..  assem- 
ble to  transact  their  business.  Cadr  <lc 
Comm.  art.  71.    See  Stock  Exchange. 

In  Conveyancing.  A  mutual  grant  of  equal 
interests  in  land,  the  one  in  consideration 
of  the  other.  2  Bla.  Com.  323;  Littleton  62; 
Shep.  Touchst  289;  Digby,  R.  P.  368.  It  is 
said  that  exchange  in  the  United  States  does 
not  differ  from  bargain  and  sale.  1  Bouvier, 
Inst.  n.  2059. 


There  are  five  circumstances  necessary  to 
an    exchange.      That    the    estates    given    be 
equal.      That    the    word   excambium,    or    ex- 
change,  be   used, — which  cannot  I  e 
by  any  other  u urd,  or  described  by  circum- 
locution.   That  there  be  an  execution  by  en- 
try or  claim  in  the  life  of  the  parties.    That 
if  it  be  of  things  which  lie  in  grant,  it  be 
by   deed.     That   if  the  lands   lie  In    a 
counties,  or  if  the  thing  lie  in  grant,  though 
they  be  in  one  county,  it  be  by  deed  lnd< 
In    practice   this   mode  of   conveyancing   is 
nearly  obsolete. 

See   Cruise,    Dig.    tit.   32;   Com.    Dig.;    Co. 
Litt.  51;  1  Washb.  B.  P.  159;  Cass  v.  Thomp- 
son, 1  N.  II.  65,  8  Am.  Dec.  30;   Maydwell   v. 
Carroll,  3   Harr.   ft  J.    (Md.i    361;   Stroll   \. 
Swafford    Bros.,    79    la.   135,   44    N.    W 
Close  v.  Crossland,  47  Minn.  500,  50  N.   W. 
694;  Williamson  v.  Woten,  132   Ind.  2 
N.   E.   791  ;   Gunter   v.  Leckey,  30  Ala. 
Real  Estate  Bkoker. 

EXCHANGE,   BILLS   OF.       See  Bills  of 

Exchange. 

EXCHEQUER  (Law  Lat.  tcaCCQ ri urn  ; 
Nor.  Fr.  eschequier) .  In  English  Law.  A 
department  of  the  government  which  has 
the  management  of  the  collection  of  the 
king's  revenue. 

The  name  is  said  to  be  derived  from  the  chequer- 
ed cloth  which  covered  the  table  on  which  some  of 
the  king's  account*  were  made  up  and  the  amounts 
indicated   by  counters. 

It  consisted  of  two  divisions,  one  for  the 
receipt  of  revenue,  the  other  for  administer- 
ing justice.  Co.  4th  Inst  103;  ."•  Bla.  Com. 
44,  45.  See  Court  of  EXCHEQUER;  Court  ok 
Exchequer  Chamber. 

EXCHEQUER  BILLS.  Bills  of  credit  is- 
sued by  authority  of  parliament 

They  constitute  the  medium  of  transaction 
of  business  between  the  bank  of  England 
and  the  government.  The  exchequer  bills 
contain  a  guarantee  from  government  which 
secures  the  holders  against  l<  ss  by  fluctua- 
tion.    Wharton;   McCulloch,  Comm.  Diet. 

EXCISE.  An  inland  imposition,  paid 
sometimes  upon  the  consumption  of  the  com- 
modity, and  frequently  upon  the  retail  sale, 
i  Bla.  Com.  318;  story,  Const  |  950;  Cooley, 
Tax,  4.  See  Oliver  v.  Washington  Mills.  11 
Allen   (Mass.)   -,'^. 

Excises  are  a  species  of  b  Isting 

ally  of  duties  laid  upon  the  manufac- 
ture, sale,  or  consumption  of  commodities 
within  the  country,  or  upon  certain  callings 
upations,  often  taking  the  form  of  ex- 
actions for  licenses  to  pursue  them.  P 
v.  Trust  Co.,  157  U.  S.  429,  15  Sup.  Ct  673, 
.•'.'.i  L.  Ed.  759. 

In  Art.  I,  sec.  8,  of  the  constitution  con- 
gress has  power  to  lay  and  collect  taxes,  du- 
ties, imposts,  and  excises  to  pay  the  debts 
and  provide  for  the  common  defeuse  and  gen- 
eral welfare  of  the  United  States,  but  all  du- 


EXCISE 


1110 


EXCISE 


ties,  imposts  and  excises  shall  be  uniform 
throughout  the  United  States.  The  power 
of  congress  under  this  clause  is  co-extensive 
with  the  territory  of  the  United  States  and 
extends  to  the  territories;  Loughborough  v. 
Blake,  5  Wheat.  (U.  S.)  317,  5  L.  Ed.  98; 
The  Cherokee  Tobacco,  11  Wall.  (U.  S.)  G16, 
20  L.  Ed.  227. 

Duties,  imposts,  and  excises  were  used  com- 
prehensively to  cover  customs  and  excise  du- 
ties imposed  on  importation,  consumption, 
manufacture  and  sale  of  certain  commodi- 
ties, privileges,  particular  business  transac- 
tions, vocations,  occupations  and  the  like; 
Thomas  v.  U.  S.,  192  U.  S.  363,  24  Sup.  Ct. 
305,  4S  L.  Ed.  481.  "Excises  usually  look  to  a 
particular  subject,  and  levy  burdens  with 
reference  to  the  act  of  manufacturing  them, 
selling  them,  etc.  They  are  or  may  be  as 
varied  iu  form  as  the  acts  or  dealings  with 
which  the  taxes  are  concerned.  Impost  du- 
ties take  every  conceivable  form,  as  may  by 
the  legislative  authority  be  deemed  best  for 
the  general  welfare.  They  have  been  at  all 
times  often  specific.  They  have  sometimes 
been  discriminatory,  particularly  when  deem- 
ed necessary  by  reason  of  the  tariff  legisla- 
tion of  other  countries ;"  Knowlton  v.  Moore, 
178  U.  S.  41,  88,  20  Sup.  Ct.  747,  44  L.  Ed. 
969. 

Taxes  held  to  be  excises,  and  to  be  dis- 
tinguished from  direct  taxes,  are :  Upon  the 
business  of  an  insurance  company;  Pacific 
Ins.  Co.  v.  Soule,  7  Wall.  (U.  S.)  433,  19 
L.  Ed.  95;  ou  the  circulation  of  state  banks; 
Veazie  Bank  v.  Fenno,  8  Wall.  (U.  S.)  533, 
19  L.  Ed.  482 ;  or  notes  of  any  town,  city,  or 
municipal  corporation  paid  out  by  any  bank 
or  banker;  Merchants'  Nat.  Bank  v.  U.  S., 
101  U.  S.  1,  25  L.  Ed.  979 ;  a  succession  tax ; 
Knowlton  v.  Moore,  178  U.  S.  41,  20  Sup.  Ct. 
747,  44  L.  Ed.  969;  on  the  interest  paid  by 
a  corporation  on  its  bonds;  Michigan  C.  R. 
Co.  v.  Collector,  100  U.  S.  595,  25  L.  Ed.  647 ; 
on  carriages;  Hylton  v.  U.  S.,  3  Dall.  (U. 
S.)  171,  1  L.  Ed.  556 ;  on  passing  title  to  real 
estate;  Scholey  v.  Rew,  23  Wall.  331,  23  L. 
Ed.  99;  internal  revenue  tax;  U.  S.  v.  Vas- 
sal-, 5  Wall.  (U.  S.)  462,  18  L.  Ed.  497; 
Springer  v.  U.  S.,  102  U.  S.  586,  26  L.  Ed. 
253;  stamp  duties;  Treat  v.  White,  181  U. 
S.  264,  21  Sup.  Ct.  611,  45  L.  Ed.  853 ;  Pat- 
ton  v.  Brady,  184  U.  S.  608,  22  Sup.  Ct.  493, 
46  L.  Ed.  713;  on  oleomargarine  or  artificial 
butter;  McCray  v.  U.  S.,  195  U.  S.  27,  24 
Sup.  Ct.  769,  49  L.  Ed.  78,  1  Ann.  Cas.  561 ; 
on  sales  of  property  at  an  exchange;  Nicol 
v.  Ames,  173  U.  S.  509,  19  Sup.  Ct.  522,  43 
L.  Ed.  786;  on  the  business  of  sugar  refin- 
ing; Spreckels  Sugar  Refin.  Co.  v.  McClain, 
192  U.  S.  397,  24  Sup.  Ct.  376,  48  L.  Ed.  496; 
on  contracts  of  sale  of  stock ;  Thomas  v.  U. 
S.,  192  U.  S.  363,  24  Sup.  Ct.  305,  48  L.  Ed. 
481 ;  on  agreements  to  sell  shares  of  stock, 
denominated  calls  by  New  York  stockbro- 
kers ;  Treat  v.  White,  181  U.  S.  264,  21  Sup. 
Ct.  611,  45  L.  Ed.  853;   on  tobacco  manufac- 


tured for  consumption  ;    Patton  v.  Brady,  184- 
U.  S.  608,  22  Sup.  Ct.  49^,  46  L.  Ed.  713. 

Taxes  held  not  valid  as  excises  are:  On 
the  occupation  of  an  importer  the  same  as 
on  the  imports;  Brown  v.  Maryland,  12 
Wheat.  (U.  S.)  419,  6  L.  Ed..  678;  on  the  in- 
come of  United  States  securities  the  same 
as  a  tax  on  the  securities ;  Weston  v. 
Charleston,  2  Pet.  (U.  S.)  449,  7  L.  Ed.  481; 
income  from  an  office  the  same  as  a  tax  on 
the  office;  Minis  v.  U.  S.,  16  Pet.  (U.  S.)  435, 
10  L.  Ed.  791 ;  on  a  bill  of  lading  the  same 
as  a  duty  on  the  article  represented  by  it; 
Almy  v.  California,  24  How.  (U.  S.)  169,  16 
L.  Ed.  644 ;  a  tax  upon  interest  on  bonds  as 
upon  the  security ;  Northern  C.  R.  Co.  v. 
Jackson,  7  Wall.  (U.  S.)  262,  19  L.  Ed.  88; 
on  auction  sales  of  goods  as  a  tax  on  the 
goods  sold ;  Cook  v.  Pennsylvania,  97  U.  S. 
566,  24  L,  Ed.  1015;  tax  on  income  from  in- 
terstate commerce  as  a  tax  on  the  commerce ; 
Philadelphia  &  S.  Mail  S.  S.  Co.  v.  Pennsyl- 
vania, 122  U.  S.  326,  7  Sup.  Ct.  1118,  30  L. 
Ed.  1200;  Leloup  v.  Port  of  Mobile,  127  U. 
S.  640,  8  Sup.  Ct.  1383,  32  L.  Ed.  311;  tax 
on  the  rents  or  income  of  real  estate  is  a 
direct  tax;  Pollock  v.  Trust  Co.,  157  U.  S. 
429,  15  Sup.  Ct.  673,  39  L.  Ed.  759;  tax 
upon  income  from  municipal  bonds;  id.;  li- 
cense fees  on  certain  lines  of  business  in  a 
single  territory;  Binns  v.  U.  S.,  194  U.  S. 
486,  24  Sup.  Ct.  816,  48  L.  Ed.  1087. 

It  is  within  the  power  of  congress  to  in- 
crease an  excise  as  well  as  a  property  tax, 
and  such  an  increase  may  be  made  at  least 
while  the  property  is  held  for  sale  and  before 
it  has  passed  into  the  hands  of  the  con- 
sumer ;  and  it  is  no  part  of  the  function  of 
the  court  to  inquire  into  the  reasonableness 
of  the  excise,  either  as  respects  the  amount 
or  the  property  upon  which  it  is  imposed; 
Patton  v.  Brady,  184  U.  S.  608,  22  Sup.  Ct. 
493,  46  L.  Ed.  713.     See  Tax. 

Though  an  excise  tax  be  so  onerous  that 
it  amounts  to  a  destruction  of  the  business, 
or  even  if  intended  to  do  so,  it  is  within  the 
power  of  congress  and  the  courts  have  no 
power  to  revise  its  judgment ;  McCray  v. 
U.  S.,  195  U.  S.  27,  24  Sup.  Ct.  769,  49  L.  Ed. 
78;  Patton  v.  Brady,  184  U.  S.  608,  22  Sup. 
Ct.  493,  46  L.  Ed.  713,  where  it  was  said 
"that  it  is  no  part  of  the  function  of  a  court 
to  inquire  into  the  reasonableness  of  the  ex- 
cise, either  as  respects  the  amount,  or  the 
property  upon  which  it  is  imposed." 

Territory  acquired  as  a  result  of  the  Span- 
ish War  became  territory  appurtenant  to  the 
United  States,  but  not  a  part  of  it  within 
the  revenue  clause  of  the  constitution; 
Downes  v.  Bidwell,  1S2  U.  S.  244,  21  Sup.  Ct. 
770,  45  L.  Ed.  1088;  Dooley  v.  U.  S.,  183  U. 
S.  153,  22  Sup.  Ct.  62,  43  L.  Ed.  128. 

EXCLUSIVE  (Lat.  ex,  out,  claudere,  to 
shut).  Not  including;  debarring  from  par- 
ticipation.    Shut  out;    not  included. 

An  exclusive  right  or  privilege,  as  a  copy- 
right  or  patent,   is  one  which  may   be   ex- 


EXCLUSIVE 


1111 


EXCUSE 


ercised  and  enjoyed  only  by  tbe  person  au- 
thorized, while  all  others  are  forbidden  to 
interfere. 

EXCOMMUNICATION.  An  ecclesiastical 
sentence  pronounced  by  a  spiritual  judge 
against  a  Christian  man,  by  which  he  is 
excluded  from  the  body  of  the  church,  and 
disabled  to  bring  any  action  or  sue  any 
person  in  the  common-law  courts.  Bac.  Abr. ; 
Co.  Litt.  133,  134;  Nance  v.  Busby,  91  Tenn. 
303,  18  S.   W.  874,  15  L.  R.  A.  801. 

In  early  times  It  was  the  most  frequent  and  the 
most  severe  method  of  executing  ecclesiastical  cen- 
sure, although  proper  to  be  used,  said  Justinian 
(Nov.  123),  only  upon  grave  occasions.  The  effect  of 
it  was  to  remove  the  excommunicated  person  not 
only  from  the  sacred  rites,  but  from  the  society  of 
men.  In  a  certain  sense  it  interdicted  the  use  of  fire 
and  water,  like  the  punishment  spoken  of  by  Cajsar 
(lib.  6,  de  Bell.  Gall.)  as  inflicted  by  the  Druids. 
Innocent  IV.  called  it  the  nerve  of  ecclesiastical 
discipline.  On  repentance,  the  excommunicated  per- 
son was  absolved  and  received  again  to  communion. 
These  are  said  to  be  the  powers  of  binding  and  loos- 
ing,—the  keys  of  the  kingdom  of  heaven.  This  kind 
of  punishment  seems  to  have  been  adopted  from  the 
Roman  usage  of  interdicting  the  use  of  Are  and 
water.  Fr.  Duaren,  De  Sacris  Eccles.  Ministeriis, 
lib.  1,  cap.  3.  See  Ridley,  View  of  the  Civil  and 
Ecclesiastical    Law   245. 

It  was  the  process  by  which  the  English  ecclesias- 
tical courts  enforced  their  process.  If  the  excom- 
municate did  not  submit  within  40  days,  the  court 
signified  the  fact  to  the  crown  and  thereon  a  writ 
excommunicato  capiendo  issued  to  the  sheriff,  who 
took  and  imprisoned  the  offender  till  he  submitted. 
When  he  submitted,  the  bishop  signified  this  fact, 
and  a  writ  de  excommunicato  deliberando  (to  re- 
lease an  excommunicate)  issued.  An  excommuni- 
cate could  not  serve  upon  juries,  be  a  witness  in 
any  court,  or  bring  an  action,  real  or  personal.  In 
1813  the  writ  de  contumace  capiendo  was  substituted 
to  enforce  appearance  and  punish  contempt,  the 
rules  applicable  being  the  same  as  before.  Excom- 
munication is  still  a  punishment  by  the  earlier 
writ  for  offences  of  ecclesiastical  cognizance,  but 
the  only  penalty  is  imprisonment  not  exceeding  six 
months  ;  1  Holdsw.  Hist.  E.  L.  400.  For  the  form 
of  the  writ  see  id.  433. 

EXCOMMUNICATO  CAPIENDO  (Lat.  for 
taking  an  excommunicated  person).  In  Ec- 
clesiastical Law.  A  writ  issuing  out  of  chan- 
cery, founded  on  a  bishop's  certificate  that 
the  defendant  had  been  excommunicated,  re- 
turnable to  the  king's  bench.  4  Bla.  Com. 
415;  Bac.  Abr.  Excommunication,  E.  See 
Cro.  Eli/..  224,  680;  Cro.  Car.  421;  Cro.  Jac. 
567;    1  Salk.  293. 

EXCULPATION.  See  Letters  of  EXCUL- 
PATION. 

EXCUSABLE  HOMICIDE.  The  killing  of 
a  human  being,  when  the  party  killing  is  not 
altogether  free  trotn  blame,  but  the  necessity 
which  renders  it  excusable  may  be  said  to 
have  been  partly  induced  by  bis  own  act  1 
East,  PI.  Cr.  220.     See  Homicide. 

EXCUSATIO  (Lat.).  In  Civil  Law.  Ex- 
cuse. A  cause  from  exemption  from  a  duty, 
such  as  absence,  insufficient  age,  etc.  Vicat, 
Yoc.  Jut.,  and  reference  there  given. 

EXCUSE.  A  reason  alleged  for  the  do- 
ing or  not  doing  a  thing. 

This  word  presents  two  ideas,  differing  essentially 
from   each  other.     In   one   case   an   excuse   may  be 


made  In  order  to  show  that  the  party  accused  is  not 
guilty ;  In  another,  by  showing  that  though  guilty 
he  is  less  so  than  he  appears  to  be.  T. 
ample,  the  case  of  a  sheriff  who  has  an  execution 
lual,  and  who,  in  performance  of 
his  duty,  arrests  him:  in  an  action  by  the  defend- 
ant against  the  sheriff,  the  latter  may  prove  the 
facts,  and  this  shall  be  a  sufficient  excuse  for  him  ; 
this  is  an  excuse  of  the  first  kind,  or  a  complete 
justification  ;  the  sheriff  was  guilty  of  no  offence. 
But  suppose,  secondly,  that  the  sheriff  has  an  execu- 
tion against  Paul,  and  by  mistake,  and  without  any 
malicious  design,  he  arrests  Peter  instead  of  Paul: 
the  fact  of  his  having  the  execution  against  Paul 
and  the  mistake  being  made  will  not  justify  the 
)!•  riff,  but  it  will  extenuate  and  excuse  his  conduct, 
and  this  will  be  an  excuse  of  the  second  kind. 

Persons  are  sometimes  excused  for  the  commis- 
sion of  acts  which  oidinarily  are  crimes,  either  be- 
cause they  had  no  intention  of  doing  wrong,  or  be- 
cause they  had  no  power  of  judging,  and  therefore 
had  no  criminal  will,  or,  having  power  of  judging, 
they  had  no  choice,  and  were  compelled  by  neces- 
sity. Among  the  first  class  may  be  placed  infants 
under  the  age  of  discretion,  lunatics,  and  married 
women  committing  certain  offences  in  the  presence 
of  their  husbands.  Among  acts  of  the  second  kind 
may  be  classed  the  beating  or  killing  another  in 
self-defence,  the  destruction  of  property  in  order 
to  prevent  a  more  serious  calamity,  as  the  tearing 
down  of  a  house  on  fire  to  prevent  its  spreading  U 
the  neighboring  property,  and  the  like.  See  Dalloz, 
Diet. 

EXCUSSI0  (Lat.).  In  Civil  Law.  Ex- 
hausting the  principal  debtor  before  proceed- 
ing against  the  surety.  Discussion  is  used 
in  the  same  sense  in  Scotch  law.  Vicat, 
Excussionis  Beneficium. 

EXECUTE.  To  complete:  to  make;  to 
perform ;   to  do  ;   to  follow  out 

The  term  is  frequently  used  in  law;  as, 
to  execute  a  deed,  which  means  to  make  a 
deed,  including  especially  signing,  sealing, 
and  delivery.  To  execute  a  contract  is  to 
perform  the  contract.  To  execute  a  use  is 
to    merge   or   unite   the   equit  .  ite   of 

the  cestui  que  use  in  the  legal  estate,  under 
the  statute  of  uses.  To  execute  a  writ  is 
to  do  the  act  commanded  in  the  writ.  To 
execute  a  criminal  is  to  put  him  to  death 
according  to  law,  in  pursuance  of  his  sen- 
tence. 

EXECUTED.  Done;  completed;  effec- 
tuated; performed;  fully  disclosed;  vested; 
giving  present  right  of  employment. 

EXECUTED  CONSIDERATION.      See 

si  I  n  RATION. 

EXECUTED  CONTRACT.  One  which  has 
been  Cully  performed.  The  statute  of  frauds 
does  nol  apply  to  such  contracts;  Anderson 
School  Tp.  v.  Milroy  Lodge  F.  ft  A,  M..  130 
Ind.  L08,  29  N.  E.  -111.  30  Am.  St.  Rep.  206; 
Harris  v.  Harper.  48  Kan.  418,  29  Pac  697; 
Brown  v.  Bailey,  159  Pa.  li'i.  28  Atl.  245; 
Lagerfeli  v.  McKie,  100  Ala.  430,  14  South 
281;  Doherty  v.  Doe,  18  Colo.  456,  33  Pac. 
L65;  Showalter  v.  McDonnell,  S3  Tex.  158, 
ps  s.  \v.  r.n.    See  Contracts. 

EXECUTED  ESTATE.  An  estate  where- 
by a  present  interest  passes  to  and  resides 
in  the  tenant,  not  dependent  upon  any  sub- 
sequent circumstance  or  contingency.     They 


EXECUTED  ESTATE 


1112 


EXECUTION 


are  more  commonly  called  estates  in  posses- 
sion.   2  Bla.  Com.  162. 

An  estate  where  there  is  vested  in  the 
grantee  a  present  and  immediate  right  of 
present  or  future  enjoyment.  An  estate 
which  confers  a  present  right  of  present  en- 
joyment. 

When  the  right  of  enjoyment  in  possession  is  to 
arise  at  a  future  period,  only  the  estate  is  executed ; 
that  is,  it  is  merely  vested  in  point  of  interest: 
where  the  right  of  immediate  enjoyment  is  annexed 
to  the  estate,  then  only  is  the  estate  vested  in  pos- 
session.    1  Prest.   Est,  62;    Fearne,  Cont.   Rem.   392. 

Executed  is  synonymous  with  vested.  1 
Washb.  R.  P.  11. 

EXECUTED  REMAINDER.  One  giving  a 
present  interest,  though  the  enjoyment  may 
be  future.  Fearne,  Cont.  Rem.  31;  2  Bla. 
Com.  168.     See  Remainder. 

EXECUTED  TRUST.  A  trust  of  which 
the  scheme  has  in  the  outset  been  completely 
declared.  Ad.  Eq.  151.  One  in  which  the 
devise  or  trust  is  directly  and  wholly  de- 
clared by  the  testator  or  settler,  so  -as  to 
attach  on  the  lands  immediately  under  the 
deed  or  will  itself.  1  Greenl.  Cruise,  Dig. 
385;  1  Jac.  &  W.  570.  "A  trust  in  which 
the  estates  and  interest  in  the  subject-mat- 
ter of  the  trust  are  completely  limited  and 
defined  by  the  instrument  creating  the  trust, 
and  require  no  further  instruments  to  com- 
plete them."  Bisph.  Eq..  31.  See  Trust  ;  Ex- 
ecutory Trust. 

Also  used  when,  by  the  statute  of  uses,  the 
property  passes  directly  to  the  beneficiary, 
being  executed  by  the  statute.  See  Executed 
Use. 

EXECUTED  USE.  A  use  with  which  the 
possession  and  legal  title  have  been  united 
by  the  statute  of  uses.  1  Steph.  Com.  339;  2 
Sharsw.  Bla.  Com.  335,  note;  7  Term  342; 
12  Ves.  Ch.  89 ;   4  Mod.  380. 

EXECUTED  WRIT.  A  writ  the  command 
in  which  has  been  obeyed  by  the  person  to 
whom  it  was  directed. 

EXECUTION.  The  accomplishment  of  a 
thing;  the  completion  of  an  act  or  instru- 
ment ;  the  fulfilment  of  an  undertaking. 
Thus,  a  contract  is  executed  when  the  act 
to  be  done  is  performed;  a  deed  is  executed 
when  it  is  signed,  sealed,  and  delivered.  See 
Gaskill  v.  King,  34  N.  C.  221.  Where  the 
party  is  present  and  directs  another  to  sign 
for  him,  no  written  authority  is  necessary ; 
Mut.  Ben.  Life  Ins.  Co.  v.  Brown,  30  N.  J. 
Eq.  193;  McMurtry  v.  Brown,  6  Neb.  368; 
Jansen  v.  McCahill,  22  Cal.  563,  S3  Am.  Dec. 
84;  Fitzpatrick  v.  Engard,  175  Pa.  393,  34 
Atl.  803;   Reed,  St.  of  Fr.  §  1063. 

In  Criminal  Law.  Putting  a  convict  to 
death,  agreeably  to  law,  in  pursuance  of  his 
sentence.  This  is  to  be  performed  by  the 
sheriff  or  his  deputy  ;  (see  4  Bla.  Com.  403  ;) 
or  under  the  laws  of  the  United  States,  by 
the  marshal.  Under  the  Pennsylvania  prac- 
tice, the  governor  issues  a  mandate  to  exe- 


cute the  sentence  of  death.  The  origin  of 
the  custom  and  the  forms  of  mandate  and 
return  thereto  are  found  in  Com.  v.  Hill,  185 
Pa.  385,  39  Atl.  1055,  per  Mitchell,  J.  He 
points  out  that  the  superior  courts  at  West- 
minster issued  warrants  of  death,  and  the 
Court  of  King's  Bench,  being  held  before  the 
king  himself,  had  further  power  to  issue  ex- 
ecution of  judgments  on  attainder  in  parlia- 
ment or  in  other  courts.  The  practice  of 
mandates  prevails  in  other  states.  See  Com. 
v.  Costley,  118  Mass.  35;  Lowenberg  v.  Peo- 
ple, 27  N.  Y.  336 ;  In  re  Dyer,  56  Kan.  489, 
43  Pac.  783 ;  Holden  v.  Minnesota,  137  U.  S. 
483,  11  Sup.  Ct.  143,  34  L.  Ed.  734;  State  v. 
Oscar,  13  La.  Ann.  297. 

Where  a  day  of  execution  is  fixed  by  the 
court  and  is  an  integral  part  of  the  sentence, 
and  the  day  has  passed,  the  court  should 
fix  a  new  day ;  Com.  v.  Hill,  185  Pa.  397,  39 
Atl.  1055;  Ex  parte  Howard,  17  N.  H.  545; 
Nicholas  v.  Com.,  91  Va.  813,  22  S.  E.  507; 
State  v.  Cardwell,  95  N.  C.  643 ;  In  re  Cross, 
146  U.  S.  271,  13  Sup.  Ct.  109,  36  L.  Ed.  969 
(apparently  on  a  statutory  direction).  See 
Crimes;  Electrocution;  Garrot&j  Guillo- 
tine ;   Hanging. 

In  Practice.  Putting  the  sentence  of  the 
law  in  force.  3  Bla.  Com.  412.  The  act  of 
carrying  into  effect  the  final  judgment  or  de- 
cree of  a  court 

The  writ  which  directs  and  authorizes  the 
officer  to  carry  into  effect  such  judgment. 

Final  execution  is  one  which  authorizes 
the  money  due  on  a  judgment  to  be  made 
out  of  the  property  of  the  defendant. 

Execution  quousque  is  such  as  tends  to 
an  end,  but  is  not  absolutely  final :  as,  for 
example,  a  capiat  ad  satisfaciendum,  by 
virtue  of  which  the  body  of  the  defendant 
is  taken,  to  the  intent  that  the  plaintiff: 
shall  be  satisfied  of  his  debt,  etc.,  the  impris- 
onment not  being  absolute,  but  until  he  shall 
satisfy  the  same.     6  Co.  87. 

Execution,  in  civil  actions,  is  the  mode  of 
obtaining  the  debt  or  damages  or  other 
thing  recovered  by  the  judgment ;  and  it  is 
either  for  the  plaintiff  or  defendant.  For 
the  plaintiff  upon  a  judgment  in  debt,  the 
execution  is  for  the  debt  and  damages ;  or 
in  assumpsit,  covenant,  case,  replevin,  or 
trespass,  for  the  damages  and  costs;  or  in 
detinue,  for  the  goods,  or  their  value,  with 
damages  and  costs.  For  the  defendant  upon 
a  judgment  in  replevin,  the  execution  at  com- 
mon law  is  for  a  return  of  the  goods,  to 
which  damages  are  superadded  by  the  stat- 
utes 7  Hen.  VIII.  c.  4,  §  3,  and  21  Hen.  VIII. 
c.  19,  §  3 ;  and  in  other  actious  upon  a  judg- 
ment of  non  pros.,  non  suit,  or  verdict,  the 
execution  is  for  the  costs  only ;  Tidd,  Pr. 
993. 

After  final  judgment  signed,  and  even  be- 
fore it  is  entered  of  record,  the  plaintiff 
may,  in  general,  at  any  time  within  a  year 
and  a  day,  and  whilst  the  parties  to  the 
judgment  continue  the  same,  take  out  exe- 


EXECUTION 


1113 


EXECUTION 


cution ;  provided  there  be  no  writ  of  error 
depending  or  agreement  to  the  contrary,  or, 
where  this  is  allowed,  security  entered  for 
stay  of  execution.  But  after  a  year  and  a 
day  from  the  time  of  signing  judgment  the 
plaintiff  cannot  regularly  take  out  execu- 
tion without  reviving  the  judgment  by  scire 
facias,  unless  a  fieri  facias,  or  capias  ad  sat- 
isfaciendum, etc.,  was  previously  sued  out, 
returned,  and  filed,  or  he  was  hindered  from 
suing  it  out  by  a  writ  of  error;  and  if  a 
writ  of  error  be  brought,  it  is,  generally 
speaking,  a  supersedeas  of  execution  from 
the  time  of  its  allowance;  provided  bail, 
when  necessary,  be  put  in  and  perfected,  in 
due  time.  See  Tidd,  Pr.  994 ;  Elliott  v.  May- 
field.  3  Ala.   223. 

Writs  of  execution  are  judicial  writs  issu- 
ing out  of  the  court  where  the  record  is 
upon  which  they  are  grounded.  Hence,  when 
the  record  has  been  removed  to  a  higher 
court  by  writ  of  error  or  certiorari,  or  on 
appeal,  either  the  execution  must  issue  out 
of  that  court,  or  else  the  record  must  be  re- 
turned to  the  inferior  court  by  a  remittitur 
(q.  v.)  for  the  purpose  of  taking  out  execu- 
tion in  the  court  below.  The  former  is  the 
practice  in  England ;  the  latter,  in  some  of 
the  United  States. 

The   object  of  execution   in   personal   ac- 
tions is  effected  in  one  or  more  of  the  three 
following  ways.     1.  By  the  seizure  and  sale 
of  personal   property  of  the  defendant     2. 
By    the   seizure    of   his    real   property,   and 
either  selling  it  or  detaining  it  until  the  is- 
sues and  profits  are  sufficient  to  satisfy  the 
judgment.      3.  By    seizing    his    person    and 
holding   him   in   custody    until   he  pays   the 
judgment  or  is  judicially  declared  insolvent. 
These   proceedings,    though    taken    at    the 
instance  and  under  the  direction  of  the  par- 
ty  for   whom   judgment   is   given,   are   con- 
sidered the  act  of  the  law  itself,  and  are  in 
all  cases  performed  by  the  authorized  min- 
ister of  the  law.     The  party  or  his  attorney 
obtains,  from  the  office  of  the  court  where 
the  record  is,  a  writ,  based  upon  and  reciting 
the   judgment,    and   directed    to    the  sheriff 
(or,  where  he  is  interested  or  otherwise  dis- 
qualified,   to    the    coroner)    of    the    county, 
commanding  htm,  in   the  name   of  the  sov- 
ereign or  of  the  state,  that  of  the  goods  and 
chattels  or  of  the   lands   and    tenements   of 
the  defendant  in  his  bailiwick  he  cause  to 
be   made   or    levied    the   sum    recovered,   or 
that  he  seize  the  person  of  the  defendant, 
as  the  case  may  be,  and  have  the  same  be- 
fore the  court  at  the  return  day  of  the  writ. 
This  writ  is  delivered  by  the  party  to  the 
officer  to  whom  it  is  directed,  who  thence- 
forth  becomes  responsible  for  his  perform- 
ance of  its  mandate,  and  in  case  of  omission, 
mistake,  or  misconduct  is  liable  in  damages 
to   the   person   injured,   whether   he   be   the 
plaintiff,  the  defendant,  or  a  stranger  to  the 
writ. 

When   property   is   sold   under   execution, 


the  proceeds  are  applied  to  the  satisfaction 
of  the  judgment  and  the  costs  and  Chi 
of  the  proceedings;   and  the  surplus,  if  there 
be   any,    Is   paid   to   the   defendant  in  execu- 
tion. 

Execution      against      personal      pr<>; 
When    the  propi  of  goods   and 

chattels,  in  which  are  Included  terms  for 
years,  the  writ  used  is  the  fieri  facias  (q.  v.). 
If,  after  levying  on  the  goods,  etc.,  under  a 
fieri  facias,  they  remain  unsold  for  want  of 
buyers,  etc.,  a  supplemental  writ  may 
which   is  called   the  At 

common  law,  goods  and  chattels  might 
be  taken  in  execution  under  a  U    ari 
though  now  perhaps  the  most   fre 
of    this    writ   is   in    executions    against 
property. 

Where  it  is  sought  to  reach  an  equitable 
interest  a  bill  in  equity  is  sometimes  tiled 
in  aid  of  an  execution;  Lant  v.  Manley,  75 
Fed.  G27,  21  C.  C.  A.  457. 

When  the  property  consisted  of  chose*  <" 
action,  whether  debts  due  the  defendant  or 
any  other  sort  of  credit  or  interest  belong- 
ing to  him,  it  could  not  be  taken  in  • 
tion  at  common  law;  but  now.  under  statu- 
tory provisions  in  many  of  the  states,  such 
property  may  be  reached  by  a  process  in  the 
nature  of  an  attachment,  called  an  attach- 
ment execution  or  execution  attachment. 
See  Attachment;    Cbeditobs'  Blll- 

Execution  against  real  estate.  Where 
lands  are  absolutely  liable  for  the  payment 
of  debts,  and  can  be  sold  in  execution,  the 
process  is  by  fieri  facias  and  vendition 
ponas.  In  Pennsylvania  the  land  cannot 
be  sold  in  execution  unless  the  sheriff's  jury. 
under  the  fieri  facias,  find  that  the  profits 
will  not  pay  the  debt  in  seven  years.  But, 
practically,  lands  are  almost  never  extend- 
ed- And,  in  general,  under  common-law 
practice,  lands  are  not  subject  to  sale  under 
execution,  until  after  a  levy  has  been  made 
under  the  fieri  facias,  and  they  are  appi 
under  an  inquisition.  They  are  then  liable 
to  be  sold  under  a  venditioni  <   •/' 

There  are  in  England  writs  of  execution 
against  land  which  are  not  in  general  use 
here.  The  extent  (q.  v.),  or  extendi  facias, 
is  the  usual  proce8S  for  the  king's  debt.  The 
levari  facias  (q.  v.)  is  also  used  for  the 
king's  debt,  and  for  the  subject  on  a  r< 
zance  or  statute  Staple  or  merchant  (<].  17.), 
and  on  a  judgment  in  sdn  (■.:<  ias,  in  which 
latter  case  it  is  also  generally  employi 
this  country. 

Execution  against  the  person.  This  is  ef- 
fected by  the  writ  of  capias  ad  sati 
endwm,  under  which  the  sheriff  arrests  the 
dant  and  Imprisons  him  till  be  satisfies 
the  judgment  or  is  discharged  by  pro© 
law;  Freem.  Ex.  451.  See  Insolvency. 
This  execution  is  not  final,  the  imprison- 
ment not  being  absolute:  whence  it  has 
been  called  an  execution  quousque;  6  Co.  87. 
Besides    the    ordinary    judgment    for    the 


EXECUTION 


1114 


EXECUTIONER 


payment  of  a  sum  certain,  there  are  spe- 
cific judgments,  to  do  some  particular  thing. 
To  this  the  execution  must  correspond :  on 
a  judgment  for  plaintiff  in  a  real  action, 
the  writ  is  a  habere  facias  seisinam ;  in 
ejectment  it  is  a  habere  facias  possessionem; 
for  the  defendant  in  replevin,  as  has  already 
been  mentioned,  the  writ  is  de  retorno  ha- 
bendo. 

Still  another  sort  of  judgment  is  that  in 
rem,  confined  to  a  particular  thing:  such 
are  judgments  upon  mechanics'  liens  and 
municipal  claims,  and,  in  the  peculiar  prac- 
tice of  Pennsylvania,  on  scire  facias  upon 
a  mortgage.  In  such  cases  the  execution 
is  a  writ  of  levari  facias.  A  confession  of 
judgment  upon  warrant  of  attorney,  with 
a  restriction  of  the  lieu  to  a  particular  tract, 
is  an  analogous  instance;  but  in  such  case 
there  is  no  peculiar  form  of  execution ; 
though  if  the  plaintiff  should,  in  violation 
of  his  agreement,  attempt  to  levy  on  other 
land  than  that  to  which  his  judgment  is 
confined,  the  court  on  motion  would  set 
aside  the  execution. 

An  execution  issued  in  direct  violation  of 
an  express  agreement  not  to  do  so,  except 
in  a  certain  contingency  which  has  not  hap- 
pened, will  be  set  aside;  Feagley  v.  Norbeck, 
127  Pa.  238,  17  Atl.  900. 

The  lien  of  an  execution  from  the  judg- 
ment or  decree  of  a  court  of  record  relates 
to  its  teste,  and  attaches  to  all  personalty 
owned  by  the  debtor  between  the  teste  and 
the  levy  so  as  to  defeat  the  title  of  all  in- 
termediate purchasers;  Edwards  v.  Thomp- 
son, 85  Tenn.  720,  4  S.  W.  913,  4  Am.  St.  Rep. 
807 ;  not  only  in  the  comity  in  which  judg- 
ment was  rendered,  but  everywhere  in  the 
state;  Cecil  v.  Carson,  86  Tenn.  139,  5  S. 
W.  532.  A  sale'  under  execution  transmits 
only  the  debtor's  estate,  in  the  same  plight 
and  subject  to  all  the  equities  under  which 
he  held  it;  Threadgill  v.  Redwine,  97  N.  C. 
241,  2  S.  E.  526. 

In  Connecticut,  Massachusetts,  and  Maine 
by  common  law  and  immemorial  usage,  un- 
der a  judgment  against  a  town,  the  prop- 
erty of  any  inhabitant  may  be  taken  in  exe- 
cution;  Bloomfield  v.  Bank,  121  U.  S.  121, 
7  Sup.  Ct.  865,  30  L.  Ed.  923. 

See  Exemption;  Fieri  Facias;  Home- 
stead ;    Sheriff. 

EXECUTION  PAREE.     In  French  Law.     A 

right  founded  on  an  act  passed  before  a 
notary,  by.  which  the  creditor  may  imme- 
diately, without  citation  or  summons,  seize 
and  cause  to  be  sold  the  property  of  his 
debtor,  out  of  the  proceeds  of  which  to  re- 
ceive his  payment.  It  imports  a  confession 
of  judgment,  and  is  not  unlike  a  warrant 
of  attorney.  La.  Code  of  Proc.  art  732;  6 
Toullier,  n.  208;   7  id.  99. 

EXECUTIONER.  The  name  given  to  him 
who  puts  criminals  to  death,  according  to 
their  sentence;    a  hangman. 


In  the  United  States  there  are  no  execu- 
tioners by  profession.  It  is  the  duty  of  the 
sheriff  or  marshal  to  perform  this  office,  or 
to  procure  a  deputy  to  do  it  for  him. 

EXECUTIVE.  That  power  in  the  govern- 
ment which  causes  the  laws  to  be  executed 
and  obeyed. 

It  is  usually  confided  to  the  hands  of  the  chief 
magistrate  ;  the  president  of  the  United  States  is 
invested  with  this  authority  under  the  national  gov- 
ernment ;  and  the  governor  of  each  state  has  the 
executive  power  of  the  state  in  his  hands. 

The  officer  in  whom  the  executive  power 
is  vested. 

EXECUTIVE  COMMITTEE.  See  Direc- 
tors. 

EXECUTIVE  POWER.  Authority  exer- 
cised by  that;  department  of  government 
which  is  charged  with  the  administration 
or  execution  of  the  laws  as  distinguished 
from  the  legislative  and  judicial  functions. 

"  'Executive  power,'  which  the  constitu- 
tion declares  shall  be  'vested'  in  the  presi- 
dent, includes  power  to  carry  into  execu- 
tion the  national  laws — and  including  such 
other  powers,  not  legislative  or  judicial  in 
their  nature,  as  might  from  time  to  time 
be .  delegated  to  the  president  by  congress 
— as  the  prosecution  of  war  when  declared 
— and  to  take  care  that  the  law  be  faith- 
fully executed."     1  Curtis,  Const.  Hist.  578. 

The  separation  of  the  three  primary  govern- 
mental powers  as  found  in  the  constitution  of  the 
United  States  aud  of  the  separate  states  is  the 
culmination  of  a  revolution  which  had  long  been  in 
progress  in  Europe.  As  is  pointed  out  by  a  recent 
writer  all  governmental  power  was  formerly  united 
in  the  monarch  of  the  middle  ages.  As  the  result  of 
experience  there  was  a  separation  of  the  state  from 
the  government,  the  former  being  termed  the  con- 
stitution-making power  and  the  latter  the  instru- 
mentalities by  which  administration  was  from  time 
to  time  set  in  motion  and  carried  on.  Further  ad- 
vances in  experience  indicated  the  necessity  of  the 
distribution  of  powers  by  which  there  should  be  a 
deliberative  body  for  the  formulation  of  the  rules 
and  regulations  under  which  the  state  should  exist 
and  its  affairs  be  administered ;  another  which 
should  be  the  medium  by  which  these  rules  and 
regulations  forming  the  body  of  municipal  law 
should  be  carried  into  effect ;  and  a  third  to  which 
should  be  committed  the  functions  known  in  the 
science  of  government  as  judicial.  The  latter,  under 
the  government  of  the  United  States,  has  reached 
its  highest  development  and  exercises  an  authority 
in  some  instances  over  the  other  two  departments 
of  the  government  elsewhere  unknown,  even  going 
so  far  as  to  define  the  limits  of  their  authority  and 
to  declare  void  legislative  acts.  See  Constitution- 
al. This  theory  of  the  distribution  of  the  powers  of 
government  among  three  distinct  authorities,  inde- 
pendent of  each  other,  was  first  formulated  bj 
Montesquieu,  Esprit  des  Lois,  b.  xi.  c.  vi.  The  ab- 
solute independence  of  the  three  branches  of  gov- 
ernment which  was  advocated  by  Montesquieu  has 
not  been  found  entirely  practicable  in  practice,  and, 
although  the  threefold  division  of  powers  is  the 
basis  of  the  American  constitution,  there  are  many 
cases  in  which  the  duties  of  one  department  are  to 
a  certain  extent  devolved  upon  and  shared  by  an- 
other. This  is  illustrated  in  the  United  States  and 
in  many  of  the  states  by  the  veto  power  which 
vests  in  the  executive  a  part  of  the  legislative 
authority,  and  on  the  other  hand  by  the  require- 
ment of  the  confirmation  by  one  branch  of  the  legis- 
lature   of    executive    appointments.      The    practical 


EXECUTIVE  POWER 


1115 


EXECUTIVE  POWElt 


difficulty  In  the  way  of  an  exact  division  of  powers 
is  thus  well  expressed:  "Although  the  executive, 
legislative,  and  supreme  judicial  powers  of  the  gov- 
ernment ought  to  be  forever  separate  and  distinct, 
it  is  also  true  that  the  science  of  governnv  nt  is  a 
practical  one  ;  therefore,  while  each  should  firmly 
maintain  the  essential  powers  belonging  to  it,  it 
cannot  be  forgotten  that  the  three  co-ordinate  parts 
constitute  one  brotherhood  whose  common  trust  re- 
quires a  mutual  toleration  of  the  occupancy  of  what 
seems  to  be  a  'common  because  of  vicinage'  border- 
ing on  the  domains  of  each;"  Brown  v.  Turner,  70 
N.  C.  93,  102.  In  England,  there  is  in  parliament  a 
practical  union  of  all  the  governmental  powers,  that 
body  having  absolute  power  of  selecting  the  agents 
through  whom,  in  fact,  is  exercised  the  executive 
power  theoretically  vested  in  the  crown,  and  the 
final  judicial  authority  on  appeal  remaining  In  the 
House  of  Lords.  There  is,  notwithstanding,  a  com- 
plete recognition  of  the  threefold  nature  of  govern- 
mental power  which  is  not  lost  nor  destroyed  by 
the  unity  of  the  final  depositary  of  it  all. 

While  the  science  of  government  in  modern  times 
may  be  said  to  accept  the  general  theory  of  the 
separation  of  powers,  subject  to  limitations  and  ex- 
ceptions suggested,  the  application  of  the  theory 
has  not  been  uniform.  Great  difficulty  has  been 
found  in  practice  in  determining  the  depositary  of 
executive  power  and  whether  it  should  be  vested  in 
one  man  or  a  board  of  control,  the  latter  being  sup- 
posed to  insure  deliberation  and  possibly  to  prevent 
tyranny,  and  the  other  being  more  conducive  to  ef- 
ficient administration.  See  2  Sto.  Const.  §§  1419-23; 
Montesq.  Espr.  de  L.  b.  xi.  ch.  vi.  ;  De  Lolme, 
Const.  Eng.  b.  2,  ch.  2;  Federalist  No.  70;  1  Kent 
271.  The  necessity  for  the  latter  has  led  to  the  al- 
most universal  adoption  of  the  plan  of  having  a 
single  executive  head,  and  the  principal  remaining 
difficulty  has  been  the  extent  and  character  of  the 
power  to  be  entrusted  to  it.  This  is  in  part  the  re- 
sult of  the  effort  to  apply  too  rigidly  the  theory  of 
the  absolute  separation  of  powers  already  shown  to 
be  impracticable.  Another  difficulty  has  been  said 
to  arise  from  the  failure  to  recognize  that  execu- 
tive power  really  comprises  two  functions,  the  polit- 
ical or  governmental  and  the  administrative.  The 
former  concerns  the  relations  of  the  chief  executive 
authority  with  the  great  powers  of  government,  the 
latter  relates  to  the  practical  management  of  the 
public  service.  It  has  been  said  that  the  executive 
authority,  as  understood  in  the  American  states,  is 
mainly  a  political  chief,  that  in  France  and  to  a 
less  extent  in  England  its  position  as  an  adminis- 
trator is  more  important,  while  in  the  federal  gov- 
ernment in  this  country  it  is  both,  as  it  is  also  in 
Germany  ;    1  Goodnow,  Comp.  Adm.   L.  51. 

The  proper  treatment  of  this  subject  involves  the 
consideration  of  the  systems  of  executive  adminis- 
tration developed  in  the  principal  countries  of  the 
world  which  have  adopted  the  principle  of  the 
distribution  of  powers.  Only  the  briefest  summary, 
however,   is   here   practicable. 

The  general  theory  of  tbe  distribution  of  powers 
in  Great  Britain  is  very,  much  like  that  in  the 
princely  governments  of  Germany.  The  residuum 
of  governmental  powers  is  in  the  crown,  and  the 
crown  may  exercise  all  authority  not  expressly 
otherwise  delegated,  but  it  rests  with  parliament  to 
decide    ultimately   v.  I  rs    shall    be    exercised 

by  the  crown  and  how  it  ise  them;    here- 

in it  differs  from  the  German  system.  From  the 
comprehensive  Norman  Idea  of  royalty  which  com- 
bined all  the  sovereign  powers  of  the  Saxon  and 
Dane  with  those  of  the  feudal  theory  of  monan  hy 
exemplified  at  the  time  in  France,  there  developed 
at  first  hereditary  and  despotic  power  which  was 
gradually  limited  by  of  the  concurrent 

action  of  parliament  for  the  imposition  of  taxes  and 
the  enactment  of  laws  affecting  the  ordinary  rela- 
tions of  individuals.  Later  it  was  considered  that 
a  law  once  enacted  could  not  be  changed  without 
the  consent  of  parliament,  and  finally  the  latter 
body  assumed  the  right  *o  initiate  as  well  as  ap- 
prove laws,  and  the  ciown  lost  its  original  • 
of  veto  which  has  certainly  become  obsolete,  though 
it    has   been    said    to    be    merely    dormant   and   sus- 


ceptible of  being  revived;  2  Todd,  Pari.  Govt,  in 
Eng.    390.     See  1   Stubbs,    Const.    11  33S. 

The  result  of  this  development  is  that  parliament 
has  assumed  most  of  tbe  :e»ugh 

many  matters  not  regulated  by  It  are  controlled  by 
the  crown  which  exen  lses  a  large  ordinance  power 
both    Independent    and  ry.      The 

has  lost  both  the  taxing  power  and  the  Judicial 
power,  but  retains  in  large  part  Its  old  executive 
powers,  and  its  action  Is  coir 

a  body  whose  power  has  gradually  developed,  viz., 
the  privy  council.  The  crown  may  do  anything 
which  it  Is  not  forbidden  to  do  and  possesses  the 
administrative  as  well  as  the  political  power.  It 
may  create  offices  as  well  as  fill  them,  and  both 
remove  and  direct  the  Incumbents.  Th< 
therefore,  the  chief  both  of  the  administrative  and 
political    departments    of    the    exec  r.    its 

position    being    modified   by    the    i  I  it    Its 

advisers,  without  whom  it  cannot  act,  must  ; 
the  confidence  of  the  majority  in  the  house  of  com- 
mons. The  principle  of  parliamentary  responsibility 
puts  the  crown  in  the  position  of  reigning  but  not 
governing ;  but  so  long  as  It  possesses  the  confi- 
dence of  the  house  of  commons  it  has  very  ex- 
tensive executive  powers,  and  in  council  may  declare 
war  and  make  treaties,  which  In  other  con: 
can  be  done  only  with  the  consent  of  the  legis- 
lature. The  crown  Is  in  theory  irresponsible,  but 
when  its  ministers  are  In  a  minority  in  the  house 
of  common  it  chooses  new  ministers  who  will  have 
the  confidence  of  parliament,  or  dissolves  parlia- 
ment in  the  hope  that  the  new  body  will  havo  con- 
in  the  existing  ministers,  but  the  theory 
:  in  all  cases  the  crown  and  not  parliament 
administers.  See  Pom.  Const.  Law  5  176  ;  1  Goodn. 
Comp.  Adm.  L.  ch.  vi. 

In    France    the    executive    power    Is    vested    In    a 
president  elected  by  the  legislature.    His  position  Is 
said  by  a  recent  writer,  probably  on  account  of  the 
monarchical   traditions   in    France,   to   be  more   Im- 
portant from   the  administrative   point  of  view   and 
less  from  a  political  point  of  view  thnn  that  of  the 
President  of  the  United   States,   he  having   no  veto 
power.      He   has   quite    an   unlimited    power   of    ap- 
pointment and   also  a  very  extensive   power  of   re- 
moval,   not   only    of   officers   appointed    by    hi 
but  of   local   administrative  officers;     as  mayors  of 
communes;    Law,  Apr.  5.  1S84:    and  he  a 
local    and    municipal    legislative    bodies    in    the    de- 
partments  and  communes  ;     LL.    Aug.   10,    1S71,    and 
Apr.  5,  1SS4.     In  addition  to  his  power  of  executing 
laws,  he  has  in  many  cases  authority  to  supplement 
the  law  without  any  delegation  of  leglsative  power 
by  what  are  known  as  decrees.     This  supplemental 
power    is    accorded    to    him    under    a    constiti 
provision   that   he   shall  watch  over  and  secure    the 
execution   of   the   laws,    and  the    dlffere- 
the    interpretation    put   upon    this   and    the   similar 
provision    in   the    United    States   constitution    is    ac- 
credited  to  the  monarchical  traditions  of  the  coun- 
try,  and  the  resulting  idea  that  t:  y  gov- 
ernmental power  is  vested  In  the  executive  and  not, 
as  in   this  country,    in   congress.     The    ; 
also  held  to  a   greater  responsibility  for  his 
than  In   the   American   system.     1   Goodnow,    Comp. 
Adm.  L.  ch.  iv. 

In  Germany  the  conception  of  execut; 
much   broader  than   in   ihe   I  s,   and    it  Is 

more    Important    from   the   admin,  .nt    of 

re  Important 
tions  on  the  action  of  the  Prince,  or  ez< 
of   the  subdivisions  of  the  empire;     but   in   t 
sence  of  such  limitations  he  Is  recognized  as  having 
the    governm  r,    being   as    in 

tbe  residuum  of  the  g  1  pow- 

6  limitations  upon  his  action  by  the  constitu- 
tion are  found  in  the  requirement  oi 
consent  for  the  validity  of  legislative  acts  affect- 
ing freedom  of  person  and  property  and  the  finan- 
cial affairs  of  the  government,  judicial  power  ad- 
ministered by  courts  independent  of  the  control  of 
the  executive,  and  the  necessity  that  each 
official  acts  must  be  countersigned  by  a  minister 
who   is   responsible   for   It  either    to  the   legislature 


EXECUTIVE  POWER 


1116 


EXECUTIVE  POWER 


or  to  the  criminal  courts.  The  administrative  pow- 
ers are  very  extensive,  including  that  of  appoint- 
ment and  removal,  and  a  very  wide  power  of  di- 
rection, together  with  the  authority  to  make  de- 
crees or  ordinances  as  to  all  matters  not  regulated 
in  detail   by  legislation. 

In  the  imperial  government,  the  Emperor  occu- 
pies, from  the  administrative  point  of  view,  about 
the  same  position  as  the  President  of  the  United 
States.  He  has  a  general  power  of  appointment 
and  of  administrative  direction,  which  latter  is, 
however,  exercised  under  the  responsibility  of  the 
chancellor,  who  must  countersign  all  acts  by  which 
it  is  exercised;  but  just  what  the  responsibility  of 
the  latter  officer  is  seems  to  be  undefined  other  than 
that  he  may  be  called  upon  to  defend  his  policy  be- 
fore the  federal  council.  The  Emperor  does  not 
have  any  ordinance  power  except  such  as  is  ex- 
pressly mentioned  in  the  constitution  or  delegated 
by  the  legislature,  and  in  the  exercise  of  it  he  often 
requires  the  consent  of  the  federal  council.  He  is 
entirely  irresponsible,  id.  ch.  v.  A  leading  German 
commentator  regards  .the  governmental  form  of  the 
empire  as  a  republic;  1  Zorn,  Dos  Reichsstaats- 
recht,  162. 

In  the  United  States,  the  federal  execu- 
tive power  is  vested  in  the  president.  In 
all  the  states  the  chief  executive  is  the  gov- 
ernor. With  respect  to  the  power  of  the  lat- 
ter the  differences  in  the  state  constitutions 
make  it  necessary,  for  brief  statements  of 
the  executive  officers  and  their  duties,  to  re- 
fer for  more  detailed  information  to  the 
constitutions  of  the  states,  while  compara- 
tive views  of  the  provisions  on  particular 
points  may  be  found  in  Stimson,  Am.  Stat. 
Law.  Many  features  are  common  to  most 
of  the  states  and,  making  due  allowance  for 
differences  of  detail,  the  character  of  the  of- 
ficer is  substantially  the  same.  In  general, 
it  may  be  noted  that  he  is  commander  of 
the  state  militia,  subject  to  the  paramount 
federal  constitutional  control  when  it  is  in 
the  actual  service  of  the  United  States:  he 
has  in  most  cases  a  pardoning  power  (ex- 
cept in  some  states  for  treason),  as  to  which, 
however,  there  is  a  growing  tendency  to  lim- 
it it  by  requiring  the  recommendation  of  a 
board  of  pardons,  either  such  in  name  or  ef- 
fect, usually  composed  of  several  executive 
officers,  virtute  officii;  he  has  usually  a  veto 
power  which  compels  the  reconsideration  of 
legislation  by  a  two-thirds  vote  in  most  cas- 
es, but  in  some,  three-fifths,  and  in  others  a 
mere  majority ;  in  most  of  the  states  he  has 
power  to  summon  the  legislature  in  extra 
session,  and  to  adjourn  its  sessions  when  the 
two  houses  disagree  as  to  the  time.  As  a 
rule,  the  governor's  power  of  appointment  is 
confined  to  minor  state  officials,  and  he  has 
no  power  of  removal  except  for  cause  and 
after  a  hearing.  He  is  usually  charged  with 
the  duty  of  sending  messages  to  the  legisla- 
ture containing  his  views  and  recommenda- 
tions upon  public  questions.  The  constitu- 
tional powers  vested  in  the  governor  alone 
are  addressed  to  and  regulated  by  his  own 
uncontrolled  discretion;  for  example,  where 
an  officer  assuming  to  act  as  governor,  in  his 
absence,  had  issued  a  proclamation  conven- 
ing the  legislature  in  extraordinary  session, 


the  governor  having  returned  previous  to  the 
time  named  for  the  meeting,  and  issued  a 
second  proclamation,  revoking  the  first,  it 
was  held  that,  the  power  of  convening  the 
legislature  being  discretionary,  the  call  might 
be  recalled  before  the  meeting  took  place; 
People  v.  Parker,  3  Neb.  409,  19  Am.  Rep.  634. 

Under  the  United  States  constitution  the 
governor  of  a  state  may  call  upon  the  presi- 
dent, when  necessary,  for  aid  in  the  enforce- 
ment of  the  laws. 

His  limited  power  of  removal  makes  his 
power  of  direction  and  administration  very 
slight  He  is  in  effect  a  political  rather  than 
an  administrative  officer,  his  powers  Of  the 
former  class  having  increased  while  those 
of  the  latter  class  have  been  gradually  cur- 
tailed. In  this  respect  his  relative  position 
is  quite  the  reverse  of  that  of  the  president. 
For  a  discriminating  review  of  this  subject, 
see  1  Goodn.  Comp.  Adm.  L.  ch.  iii. 

The  right  of  the  executive  officers  named 
in  the  constitution  to  exercise  all  the  powers 
properly  belonging  to  the  executive  depart- 
ment is  given  indisputably  by  the  constitu- 
tion ;  State  v.  Savage,  64  Neb.  684,  90  N.  W. 
898,  91  N.  W.  557.  They  may,  unless  limited 
by  constitution  or  statute,  determine  as  to 
the  time  and  place  where  the  exercise  of 
their  jurisdiction  is  necessary,  and  the  peo- 
ple and  local  officers  of  that  locality  have  no 
constitutional  or  statutory  right  to  be  heard 
on  that  question ;  Gilmore  v.  Penobscot,  107 
Me.  345,  78  Atl.  454. 

The  executive  power  possessed  by  the 
president  must  be  considered  historically  in 
order  to  reach  an  adequate  view,  both  of 
its  present  scope  and  limitations  and  its 
growth  since  the  adoption  of  the  constitu- 
tion. It  is  to  be  observed  primarily  that  in 
the  United  States  there  is  the  fundamental 
condition  that  the  executive  power,  whether 
of  president  or  governor,  is  expressly  grant- 
ed, and  the  residuum  of  sovereignty  is  in  the 
legislature,  either  federal  or  state  as  the  case 
may  be,  and  not  in  the  executive,  as  in 
France  and  Germany,  actually  so,  or,  as  in 
England,  theoretically  so.  This  remark  is 
equally  true  as  to  its  general  results,  not- 
withstanding decisions,  that  the  express 
grant  of  executive  power  carries  with  it  cer- 
tain implied  powers.  These  were  still  pow- 
ers of  executing  the  laws,  and  not,  as  in  the 
countries  named,  of  supplementing  or  adding 
to  them. 

Though  it  is  often  said  that  the  framers  of  the 
United  States  constitution,  in  creating  the  office  of 
president,  had  in  view,  as  a  model,  the  English 
king;  Pom.  Const.  Law  §  176,  a  more  recent  and 
probably  correct  view  is  that  the  office  was  rather 
modelled  upon  the  colonial  governor;  1,  Goodnow, 
Comp.  Adm.  L.  52,  and  1  Bryce,  Am.  Com.  36.  An 
examination  of  the  powers  of  the  executive  in  each 
of  the  three  colonies  of  New  York,  Massachusetts, 
and  Virginia  leads  Professor  Goodnow  to  the  con- 
clusion that  the  American  constitutional  executive 
power  was  that  which  has  been  called  the  political 
or  governmental  power,  and  which  had  usually  been 
exercised  by  the  colonial  governor,  to  which  was 
added  the  carrying  on  of   foreign   relations,  which, 


EXECUTIVE  POWER 


1117 


exe<  utive  power 


fn  the  colonial  period,  were  under  the  control  of 
the  mother  country,  and  afterwards  of  tho  con- 
tinental congress.  The  fact  that  the  constitution, 
in  vesting  in  the  president  the  executive  power, 
used  the  term  as  one  whose  meaning  would  be 
readily  understood,  undoubtedly  leads  to  the  con- 
clusion that  the  general  powers  so  characterized 
were  such  as  people  of  the  states  were  accustomed 
to  have  exercised  by  the  governors,  first  of  the 
colonies  and  then  of  the  states.  But  see  Stevens, 
Sources  Const.  U.  S.  ch.  vl. 

The  specific  powers  conferred  by  the  con- 
stitution in  addition  to  the  general  provision 
vesting  the  executive  power  in  hi  in,  are  that 
he  shall  be  commander-in-chief  of  the  army 
and  navy  and  the  militia  of  the  states  when 
in  service;  that  he  may  require  the  opinions 
of  the  officers  of  the  executive  depart m 
grant  reprieves  and  pardons,  except  in  cases 
of  impeachment;  make  treaties  with  the  ad- 
vice and  consent  of  the  senate,  two-thirds 
thereof  concurring,  and,  the  senate  consent- 
ing, appoint  ambassadors,  judges,  and  other 
oflicers  whose  appointment  is  not  otherwise 
provided  for  by  law ;  give  information  to 
congress ;  convene  both  houses,  or  either,  and 
adjourn  them,  when  they  disagree  with  re- 
spect to  the  time  of  adjournment,  to  such 
time  as  he  shall  think  proper;  receive  am- 
bassadors and  other  public  ministers;  take 
care  that  the  laws  be  faithfully  executed ; 
and  commission  all  officers;  Const,  art  ii. 
§§  1,  2,  3. 

This  grant  is  said  to  have  conferred  upon 
the  president  the  political  power  of  an  ex- 
ecutive and  one  administrative  power,  viz., 
the  power  of  appointment,  beyond  which  he 
had  no  control  over  the  administration;  1 
Gooduow,  Comp.  Adm.  L.  63;  Pom.  Const 
L.  §  633. 

The  original  powers  of  the  president,  un- 
der the  constitution,  have  been  increased  by 
acts  of  congress  conferring  specific  powers 
upon  him  and  by  decisions  that  his  power  is 
not  limited  by  the  express  terms  of  legisla- 
tive acts  but  includes  certain  "rights,  duties, 
and  obligations  growing  out  of  the  constitu- 
tion itself,  our  international  relations,  and 
all  the  protection  implied  by  the  nature  of 
the  government  under  the  constitution" ;  In 
re  Neagle,  135  U.  S.  1,  64,  10  Sup.  Ct  658, 
34  L.  Ed.  55.  Under  this  implied  power  it 
was  hold  that  the  president  could  take  meas- 
ures to  protect  a  United  States  judge  or  a 
mail-carrier  in  the  discharge  of  his  duty 
without  an  act  of  congress  authorizing  him 
to  do  so;  In  re  Neagle,  135  U.  S.  67,  10  Sup. 
Ct  658,  34  L.  Ed.  55;  or,  in  the  same  man- 
ner, to- place  guards  upon  the  public  lauds 
to  protect  the  property  of  the  government 
As  an  Illustration  of  the  exercise  of  this  pow- 
er the  supreme  court  cites  the  executive  ac- 
tion which  resulted  in  the  release  of  Koszta 
from  a  foreign  prison  where  he  was  confined 
in  derogation  of  his  rights  as  a  person  who 
had  declared  his  intention  to  become  an 
American  citizen ;  In  re  Neagle,  135  U.  S.  64, 
10  Sup.  Ct  65S,  34  L.  Ed.  55.     He  may  re- 


move   obstructions    to    interstate    commerce 
and  the  transportation  Of  '.he  mails;  and  en- 
the  full  and    free  ,,f  all    na- 

tional powers  and  ;.  all  rights 

under  the  constitution;   In  re 
15  sup.  ■ 
Another    increase    of     the  .  itive 

power  of  the  president  wi 
of  removal,  which  was  i  L  in  the 

constitution,  but  it   was  b<  Id   by  a 
vote  in  the  first  congress  to  be  a  part  of  the 
executive  power ;  1  Lloyd's  D 
150,   480-600;    2   id.    1-12;   5   Marsh.   I. 
Washington,   ch.    .'!,    196;   and    this  coi 
tion    of   the   constitution    was   judicially   ap- 
proved ;   t;.  S.  v.  Avery,  Dead:    - 
No.  14,481;  and  was  undoubtedly 
nized  practice  of  the  government  until   the 

-e  of  the  Tenure  of  Office  Acts  of  1867 
') ;  l'.  S.  E.  S.  Si  1767  to  lTtJ'.t;  which  were  re- 
pealed in  18S7.     See  2  Sto.  Const  SS  1537- 
43;  Paper  of  W.  A.  Dunning  on  the  [mj 
ment  and  Trial  of  President  Johnson;  4  Pa- 
pers Am.  Hist.  Assoc  4!tl  ;  1   K<  at  310;  Pom. 
Const   L.   §§  647-6.07.     To   the  power  of  re- 
moval thus  recognized  has   been   attributed 
the  evolution  of  "the  president's  power  of  di- 
rection and  supervision  over  the  entire 
tional   administration"  and   "the   recognition 
of  the  possession  by  the  preside  nt  of  ti 
ministrative    power"  ;    l    Goodnow,    I 
Adm.  L.  66.     Whatever  theories  may  be  form- 
ed   of   the   conception   of   the    office    in    the 
minds    of   the   framers   of    the   constitution, 
and    however    the    result    may     have     been 
brought  about,  it  cannot  be  doubted  that  the 
executive  head  of  the  federal   government  is 
now  in  fact  the  depositary  of  the  complete 
executive  power,  as  it  is  understood  i 
prehend    both    political   and    administrative 
power.     He  is  authorized  to  ap]  oint  certain 
officers  in  the  executive  departments,  the  dis- 
charge  of   whose   duties  is   under   his   direc- 
tion;  Marbury   v.   Madison,  l   Cra,    ti 

.  2  L.  Ed.  60;  Kendall  v.  U.  B.,  12  Pet 
(U.  S.)  524,  9  L.  IM.  1181  ;  U.  S  v.  Kendall, 
5  Cra.  C.  C.  163,  Fed.  Cas.  No.  15,517.  This 
is  considered  by  the  writer  last  cited  P>  be 
a  great  enlargement  of  the  American  I 
tion;  and  this  view  seems  to  be  well  support- 
ed by  the  considerations  already  sugg 
It  is  true  that  at  the  time  of  the  adoption  of 
the  constitution  the  powers  conferred  upon 
the  president  were  considered  by  many  to  be 
so  great  as  to  endanger  the  stability  of  the 
Union,  and  it  is  considered  l  y  one  of  the 
ablest  authorities  on  constitutional  law  that 
no  one  of  the  three  great  departments  "has 
been  more  shorn  of  its  just  powers,  or  crip- 
pled in  the  exercise  of  them,  than  the  | 
dency;"  Miller.  Const  U.  s.  20,  95.  But  the 
context  shows  that  this  has  reference  sole- 
ly to  the  encroachments  on  the  appointing 
power  by  the  extra-legal  participation  of 
members  of  congress  therein — an  evil  much 
mitigated  by  the  extension  of  the  civil  serv- 


EXECUTIVE  POWER 


1118 


EXECUTIVE  POWER 


ice  system  to  the  greater  number  of  offices 
which  were  formerly  not  subject  to  its  oper- 
ation. 

The  administrative  power  of  the  president 
includes  not  only  the  control  of  the  person- 
nel of  the  public  service  but  also  the  vast 
number  of  powers  brought  into  action  in  the 
course  of  the  administration  of  the  govern- 
ment growing  out  of  powers  vested  in  the 
president  by  his  duty  under  the  constitution 
to  see  that  the  laws  are  faithfully  executed. 
These  duties,  aside  from  this  specific  enumer- 
ation in  the  constitution  as  already  stated, 
are  those  imposed  upon  the  president  by  act 
of  congress,  and  may  be  either  of  a  special 
or  general  character,  as  the  promulgation  of 
regulations  for  the  control  of  particular 
branches  of  the  public  service,  such  as  con- 
sular regulations  and  the  civil  service  rules ; 
but  in  most  cases  such  executive  regulations 
proceed  from  the  heads  of  departments  and 
not  from  the  president  directly,  although 
they  are  in  law  presumed  to  proceed  from 
him;  Wilcox  v.  Jackson,  13  Pet.  (U.  S.)  498, 
513,  10  L.  Ed.  264;  U.  S.  v.  Eliason,  16  Pet. 
(U.  S.)  291,  10  L.  Ed.  96S;  The  Confiscation 
Cases,  20  Wall.  (U.  S.)  92,  109,  22  L.  Ed. 
320;  U.  S.  v.  Farden,  99  U.  S.  10,  19,  25  L. 
Ed.  267 ;  Wolsey  v.  Chapman,  101  U.  S.  755, 
25  L.  Ed.  915.  Executive  acts,  as  to  the 
manner  of  doing  which  there  is  no  provision 
of  law,  may  be  done  through  the  head  of  the 
proper  department  whose  acts  are  the  acts 
of  the  president  in  contemplation  of  law; 
Jones  v.  U.  S.,  137  U.  S.  202,  217,  11  Sup.  Ct. 
80,  34  L.  Ed.  691.  The  president  may  act  in 
special  cases  by  directions  to  his  subordinate 
officers,  either  directly  or  through  the  head 
of  a  department,  or  by  his  decision  on  ap- 
peal from  either  of  them,  though,  as  a  rule, 
he  is  not  considered  to  be  authorized  to  en- 
tertain such  appeals  except  as  to  the  juris- 
diction of  the  officer  appealed  from ;  15  Op. 
Atty.  Gen.  94,  100,  reviewing  opinions  on  this 
question.  In  other  cases  the  appeal  does 
not  go  beyond  the  head  of  the  department; 
4  id.  515 ;  9  id.  462 ;  10  id.  526. 

Nearly  if  not  all  the  state  constitutions 
contain  provisions  similar  to  that  of  the 
United  States  making  it  the  duty  of  the 
chief  executive  to  see  that  the  laws  are 
faithfully  executed.  This  provision  has  been 
drawn  into  construction  by  the  supreme 
court  of  Mississippi.  The  governor  believed 
that  a  contract  made  by  a  state  board  of 
which  the  attorney-general  was  a  member 
was  contrary  to  the  constitution,  and,  hav- 
ing ineffectually  endeavored  to  induce  the 
attorney-general  to  act  in  the  matter,  brought 
suit  himself  in  the  name  of  the  state  and  the 
court  dismissed  the  bill,  the  majority  opinion 
being  that  no  warrant  could  be  found  in  the 
constitution  or  laws  of  the  state  for  the  ac- 
tion of  the  governor;  Henry  v.  State,  87 
Miss.  1,  39  South.  856.  See  note  on  this 
case;  1  The  Law  806.    In  that  state  the  right 


of  the  governor  to  sue  in  a  foreign  state  is 
given  by  statute;  Rev.  Code    (1892)   §  2167. 

A  governor,  being  under  the  constitutional 
injunction  to  see  that  the  laws  are  executed, 
appears  to  have  no  right  to  execute  them 
himself;  Shields  v.  Bennett,  8  W.  Va.  74; 
In  re  Fire  &  Excise  Com'rs,  19  Colo.  482,  36 
Pac.  234;  Cahill  v.  Board,  127  Mich.  487,  86 
IS.  W.  950,  55  L.  R.  A.  493.  As  to  his  right 
to  employ  counsel  for  the  state,  see  55  L.  R. 
A.  493,  n.  There  are  state  statutes  authoriz- 
ing the  governor  to  employ  other  counsel  in 
certain  cases,  where  the  attorney-general  is 
under  a  disability ;  State  v.  Dubuclet,  25  La. 
Ann.  161;  Orton  v.  State,  12  Wis.  509.  A 
governor  has  also  been  permitted  to  bring 
action  on  bonds  payable  to  him  for  the  use 
of  the  state;  Governor  v.  Allen,  8  Humph. 
(Tenn.)  176.  See  note  on  this  subject;  19 
Harv.  L.  Rev.  524. 

In  most  if  not  all  of  the  states,  the  gov- 
ernor has  a  veto  power,  and  in  such  case  an 
act  of  the  legislature  is  not  valid  unless  pre- 
sented to  him  for  approval,  the  opportunity 
for  his  action  being  essential  to  the  validity 
of  the  law;  Wartman  v.  City  of  Philadelphia, 
33  Pa.  202;  Burritt  v.  Com'rs  of  State  Con- 
tracts, 120  111.  322,  11  N.  E.  180;  State  v. 
Newark,  25  N.  J.  L.  399.  In  some  cases  not 
only  a  bill  but  an  order  or  resolution  must 
be  presented  to  the  executive,  but  in  most 
cases  adjournment  is  excepted ;  Trammed  v. 
Bradley,  37  Ark.  374. 

Some  question  has  arisen  as  to  whether 
the  veto  power  of  the  governor  extends  to 
proposals  for  the  amendment  of  the  constitu- 
tion. In  Delaware,  the  governor's  power 
over  such  proposals  is  recognized  in  the 
constitution,  and  in  some  other  states  they 
are  exempted,  but  as  a  general  rule  there  is 
no  mention  of  the  governor  in  connection 
with  such  proposals.  It  has  been  held  that 
the  veto  power  of  the  executive  does  not  ap- 
ply to  them  in  Com.  v.  Griest,  196  Pa.  396, 
46  Atl.  505,  50  L.  R.  A.  56S ;  Nesbit  v.  People, 
19  Colo.  441,  36  Pac.  221;  Warfield  v.  Van- 
diver,  101  Md.  78,  60  Atl.  538,  4  Ann.  Cas. 
692;  but  it  has  also  been  held  that,  while 
proposing  constitutional  amendments  is  not 
legislation  in  the  ordinary  sense,  it  is  such 
so  far  as  that  it  must  be  included  in  the  gov- 
ernor's proposals  for  legislation  in  a  special 
session  in  order  to  be  valid;  People  v.  Cur- 
ry, 130  Cal.  82,  62  Pac.  516. 

The  practice  of  the  federal  government  is 
that  proposals  by  congress  of  amendments  to 
the  constitution  are  not  submitted  to  the 
president  for  his  approval.  Of  the  seventeen 
amendments  thus  far  adopted,  none  have 
been  approved  by  the  president  except  the 
XIHth.  The  resolution  proposing  that  par- 
ticular amendment  is  published  with  the 
note  at  the  foot,  "Approved  February  1st, 
1865";  13  Stat.  567;  but  this  does  not  ap- 
pear in  the  resolution  as  published  by  the 
secretary  of  state  in  his  announcement  of 
its  ratification.    Prior  to  the  XHIth,  no  res- 


EXECUTIVE  POWER 


1119 


EXECUTIVE  POWER 


olution  proposing  amendments,  as  published, 
has  any  note  at  the  foot.  Subsequent  to  the 
Xlllth  tbey  appear  with  "Received  at  De- 
partment of  State"  or  "Deposited  in  Depart- 
ment, of  State,"  noted  at  the  foot  of  the  reso- 
lution as  published,  in  the  Statutes  at  Large. 
The  only  exception  to  the  general  practice 
of  having  no  approval  by  the  president  is 
the  Xlllth  which  seems  to  have  been  inad- 
vertence. 

In  Ilollingsworth  v.  Virginia,  3  Dall.  (U. 
S.)  380,  1  L.  Ed.  G44,  it  was  argued  by  \Y. 
Tilghman  and  Rawle,  upon  the  question 
whether  the  Xlth  amendment  did,  or  did 
not,  supersede  all  pending  suits  against 
states,  that  the  amendment  was  not  propos- 
ed in  due  form  because  never  submitted  for 
approval  of  the  president.  When  Lee,  Atty. 
Gen.,  answered  that  the  same  course  bad 
been  pursued  relative  to  all  the  other  amend- 
ments, Chase,  J.,  interrupted:  "There  can, 
surely,  be  no  necessity  to  answer  that  argu- 
ment. The  negative  of  the  president  applies 
only  to  the  ordinary  cases  of  legislation.  He 
has  nothing  to  do  with  the  proposition,  or 
adoption,  of  amendments  to  the  constitution." 

The  date  is  no  necessary  part  of  executive 
approval  of  a  bill  either  by  the  president; 
Gardner  v.  The  Collector,  G  Wall.  (U.  S.) 
499,  18  L.  Ed.  890  (where  it  is  said  that  nei- 
ther the  constitution  nor  any  act  of  con- 
gress requires  him  to  affix  a  date  to  bis  sig- 
nature) :  nor  in  the  case  of  a  governor;  State 
v.  Hitchcock,  1  Kan.  178,  SI  Am.  Dec.  503; 
and  the  signature  in  any  place  on  the  bill  is 
sufficient;  National  Land  &  Loan  Co.  v. 
Mead,  60  Vt.  257,  14  Atl.  689. 

Where  the  constitution  provides  that  meas- 
ures submitted  for  executive  approval  "shall 
be  presented"  to  him,  it  is  held  that  it  is 
unnecessary  that  they  should  be  presented 
to  him  in  person;  but  it  is  sufficient  that 
they  be  left  at  the  executive  chamber,  or 
other  place  determined  by  usage  where  com- 
munications are  made  to  the  governor ;  Opin- 
ion of  Justices,  45  N.  II.  607 ;  otherwise,  as 
was  said  arguendo,  the  executive,  by  simply 
absenting  himself,  could  defeat  any  law ; 
Hamilton  v.  State,  61  Md.  14;  on  the  other 
hand,  it  is  said  that  it  is  not  sufficient  that 
the  bill  is  sent  to  the  secretary  of  state; 
Opinion  of  Justices,  99  Mass.  63(5 ;  or  the  gov- 
ernor's private  secretary,  who  returned  it  as 
not  properly  signed  ;  .Monroe  v.  Green,  Tl  Ark. 
527,  76  S.  W.  199;  and  see  Lyth  v.  City  of 
Buffalo,  4S  Hun  (N.  Y.)  175,  and  Barpending 
v.  Haight,  39  Cal.  189,  2  Am.  Rep.  432,  where 
it  was  held  that  merely  exhibiting  a  meas- 
ure to  the  governor  was  not  a  proper  pres- 
entation; which  must  he  such  as  to  notify 
the  executive  that  it  is  intended  to  secure 
his  final  action;  State  v.  Newark,  25  N.  J. 
L.  399.  The  presentation  must  be  of  the 
same  bill  which  was  passed.;  State  v.  Wend 
ler,  94  Wis.  369,  68  N.  W.  759;  Padavano  v. 
Fagan,  66  N.  J.  L.  167,  48  Atl.  998;  and  if 


the   title   has    been   changed   it   is  material, 
particularly  where  the  title  is  required  to  ex- 
press the  substance  of  the  bill;   Simpson  v. 
ards    Co.,    110    Fed.    1  pie    v. 

Onondaga  Sup'rs,   16  Mid  ,254;  the  p 
tation  must  be  within  a   I 
fore  the  expiration  of  the  time  limit  1 
proval;   State  v.   Michel,  52  La.  An 
South.  565,  49  L.  R.  A.  2 
364.      In  the   absence  of  any   express   provi- 
sion for  the  approval  of  bill 
journment   of    the    Legislature,    it 
held  that  the  power  of  the  ex<    >. 
an    end    and    the    legislation    void;    1'    ivler  v. 
Peirce,  2  Cal.  165;  Hardee  v.  Gibbs,  50  Miss. 
802,  overruled  in  State  v.  Sup'ra  of  Coahoma 
County,    64    Mi  l     South.    501;    but 

where  the  constitution  provided  that  a  bill 
should  become  a  law  if  nol  returned  within 
ten  days,  and  that  within  live  days  aft( 
journment  the  governor  might  sign  any  act 
passed  within  the  last  five  days  of  the  ses- 
sion, his  signature  within  ten  days  after  the 
passage  of  the  bill,  although  it  was  p 
more  than  five  days  before  adjournment,  was 
valid;  City  of  Detroit  v.  Chapin,  108  Mich. 
LJ6,  66  N.  W.  5S7,  37  L.  R.  a.  391  (where 
the  cases  are  examined  at  large  in  the  opin- 
ion and  a  notei  ;  but  where  he  is  allowed 
five  days  and  returns  it  in  less  time  with  a 
notification  that  he  does  not  sign  it,  it  will 
become  a  law.  as  the  five  days  allowed  Is  a 
matter  of  privilege;  Hunt  v.  State.  72  Ark. 
241,  79  S.  W.  769,  65  L  R.  A.  71,  105  Am. 
St.  Rep.  34,  2  Ann.  Cas.  33.  Of  course,  this 
question  is  settled  by  a  constitutional  provi- 
sion authorizing  executive  action  after  the 
adjournment,  and  such  action  has  been  sus- 
tained upon  the  basis  of  long-established 
custom;  Solomon  v.  Com'rs  of  Cartorsville, 
41  Ga.  157.  On  the  other  hand,  custom  to 
the  contrary  was  held  to  be  abrogated  by  a 
single  departure  from  it  by  the  president; 
U.  S.  v.  WeiL  29  Ct.  CI.  523.  But  when  that 
question  arose  in  a  ease  before  the  supreme 
court,  that  court  held  that  an  act  was  not 
invalid  by  reason  of  its  being  signed  during 
a  recess  of  Congress,  but  it  declined  to  de- 
cide whether  the  president  could  sign 
the  final  adjournment;  La  Abra  Silver  Min. 
Co.  v.  U.  S.,  175  U.  S.  423,  20  Sup.  CI 
4-1  L.   Ed.  223. 

Where  there  were  rival  bodies  each  claim- 
ing to  be  the  legislature,  it  has  been  held 
that  the  recognition  of  the  governor  is  in>t 
effective  to  determine  between  them:  Ex 
parte  Screws.  49  Ala.  57;  In  re  Gunn,  50 
Kan.  155,  32  Pac.  470,  948,  19  L  EL  A.  519; 
but  under  the  United  states  constitution, 
the  president,  by  virtue  of  the  guaranty  to 
the  states  against  domestic  violence,  upon 
the  application  of  the  legislature,  and  his 
authority  to  suppress  Insurrection, 
ly  has  the  power  to  determine  who  constitute 
the  legislature,  as  it  was  held  in  Luther  v. 
Borden,  7  How.  (U.  S.)  1,  12  L.  Ed.  581. 


EXECUTIVE  POWER 


1120 


EXECUTIVE  POWER 


In  the  absence  of  constitutional  authority 
to  the  contrary,  the  governor  must  approve 
or  veto  a  bill  as  a  whole ;  Porter  v.  Hughes, 
4  Ariz.  1,  32  Pac.  165,  where  without  such 
authority  the  governor  vetoed  part  of  an  ap- 
propriation bill,  but  his  signature  affixed  to 
it  was  held  to  be  an  approval  of  the  whole 
bill;   but  in  State  v.   Holder,  76  Miss.  158, 

23  South.  643,  the  contrary  was  held  and 
the  action  of  the  executive  was  treated  as  a 
nullity;  where,  however,  he  is  authorized  to 
veto  separate  items,  he  may  also  veto  a  part 
of  an  item;  Com.  v.  Barnett,  199  Pa.  161, 
48  Atl.  976,  55  L.  R.  A.  882 ;  but  he  may  not 
veto  some  items  before  adjournment  and 
others  after  it ;  Pickle  v.  McCall,  86  Tex.  212, 

24  S.  W.  265.  Where  the  governor  inad- 
vertently approved  one  bill  believing  it  to 
be  another  and  recalled  his  action,  it  was  held 
valid  so  long  as  the  bill  was  before  him,  but 
would  not  have  been  so  if  returned  to  the 
legislature ;  People  v.  Hatch,  19  111.  2S3 ;  Alle- 
gany County  v.  Warfield,  100  Md.  516,  60  Atl. 
599,  108  Am.  St.  Rep.  446.  Where  he  had 
deposited  the  bill  in  the  office  of  the  secre- 
tary of  state  with  his  approval  endorsed  on 
it,  it  had  passed  beyond  his  control,  and  he 
had  no  authority  afterwards  to  veto  it ;  Peo- 
ple v.  McCullough,  210  111.  4S8,  71  N.  E.  602. 
The  return  of  a  bill  to  either  house,  or  notifi- 
cation of  its  approval,  is  a  matter  of  courte- 
sy only  and  not  required  by  law;  State  v. 
Whisner,  35  Kan.  271,  10  Pac.  852. 

Whether  a  measure  may  be  recalled  by  the 
legislature  after  having  been  sent  to  the 
executive  is  in  doubt;  Wolfe  v.  McCaull,  76 
Va.  876,  where  its  return  is  said  to  be  "a 
mere  act  of  courtesy"  ;  and  see  People  v. 
Devlin,  33  N.  Y.  269,  88  Am.  Dec.  377.  An 
opinion  of  the  attorney-general  of  Wisconsin 
holds  the  practice  of  the  surrender  of  bills 
by  the  executive  as  questionable,  and  doubts 
whether,  if  returned,  it  may  be  changed  by 
the  legislature;  Op.  Atty.  Gen.  Wis.  Sen. 
Jour.  (1897)  690.  See  also  Smith  v.  Jen- 
nings, 67  S.  C.  324,  45  S.  E.  821 ;  In  re  Duf- 
fy, 4  Brewst.  (Pa.)  533;  Sank  v.  City  of 
Philadelphia,  8  Phila.  (Pa.)  117.  The  re- 
turn of  a  bill  after  veto  must  put  it  clearly 
in  the  possession  of  the  legislature  and  out 
of  the  control  of  the  executive;  Harpending 
v.  Haight,  39  Cal.  189,  2  Am.  Rep.  432;  but 
the  return  must  be  before  final  adjournment ; 
Opinion  of  Justices,  45  N.  H.  607. 

The  approval  or  veto  by  the  governor  is 
held  in  some  cases  to  be  a  legislative  act; 
Trustees  of  School  District  No.  1  v.  County 
Com'rs,  1  Nev.  335;  Thornburg  v.  Hermann, 
1  Nev.  473;  Fowler  v.  Peirce,  2  Cal.  165; 
State  v.  Deal,  24  Fla.  293,  4  South.  899,  12 
Am.  St.  Rep.  204  ;  Opinion  on  Governor's  Com- 
munication, 23  Fla.  298,  6  South.  925;  Har- 
dee v.  Gibbs,  50  Miss.  802;  State  v.  Fagan, 
22  La.  Ann.  545 ;  Arnold  v.  McKellar,  9  S.  C. 
335;  Weis  v.  Ashley,  59  Neb.  494,  81  N.  W. 
318,  80  Am.  St  Rep.  704;  contra,  People  v. 


Bowen,  30  Barb.  (N.  Y.)  24;  U.  S.  v.  Weil, 
29  Ct.  CI.  523.  It  is  said  by  way  of  conclu- 
sion, after  an  examination  of  the  cases,  in 
an  article  in  41  Am.  L.  Rev.  396,  cited  infra: 
"Usually  the  controversy  has  been  entirely 
unnecessary  to  a  decision  of  a  case.  Though 
the  legislative  character  of  the  executive's 
action  would  seem  to  be  obvious  enough,  in- 
sisting on  this  truth  has  been  very  'unfruit- 
ful,' since  the  same  results  could  generally 
have  been  obtained  without  it,  and  when 
pushed  to  the  extreme,  unreasonable  results 
are  likely   to   follow." 

The  power  of  a  governor  to  summon  the 
legislature  in  extraordinary  sessions,  express- 
ed in  various  terms  in  the  state  constitutions, 
is  held  to  leave  the  occasion  wholly  to  the 
discretion  of  the  executive;  Whiteman's  Ex'x 
v.  R.  Co.,  2  Harr.  (Del.)  514,  33  Am.  Dec.  411 ; 
In  re  Governor's  Proclamation,  19  Colo.  333, 
35  Pac.  530;  State  v.  Fair,  35  Wash.  127,  76 
Pac.  731,  102  Am.  St.  Rep.  S97 ;  and  in  one 
case  it  was  held  that  the  governor  had  pow- 
er to  revoke  his  proclamation ;  People  v. 
Parker,  3  Neb.  409,  19  Am.  Rep.  634.  Where 
the  constitution  authorized  the  governor  to 
limit  the  subject-matters  of  legislation  at  the 
special  session,  they  must  be  presented  in 
writing  and  a  "parol  request"  or  a  mere  ref- 
erence to  the  subject  is  insufficient;  Manor 
Casino  v.  State  (Tex.)  34  S.  W.  769 ;  Jones  v. 
Theall,  3  Nev.  233 ;  but  it  has  been  decided 
by  the  United  States  senate  that  the  election 
of  a  senator,  which  has  failed  at  a  regular 
session,  may  take  place  at  a  special  session, 
though  not  named  by  the  governor  as  one  of 
the  purposes;  Taft,  El.  Cas.  722.  The  gov- 
ernor's proclamation  need  not  be  specific  as 
to  the  details  of  particular  legislation,  as  to 
which  the  general  subject  is  recommended; 
In  re  Governor's  Proclamation,  19  Colo.  333, 
35  Pac.  530 ;  Chicago,  B.  &  Q.  R.  Co.  v.  Wolfe, 
61  Neb.  502,  86  N.  W.  441 ;  Parsons  v.  People, 
32  Colo.  221,  76  Pac.  666. 

In  many  states  the  executive  has  the  pow- 
er to  convene  the  legislature  at  a  place  other 
than  its  usual  place  of  meeting,  in  the  case 
of  grave  emergency,  the  existence  of  which 
must  be  determined  by  him,  and  in  one  case, 
that  of  Alabama,  he  has  power  to  remove  it 
after  it  has  convened,  but  the  ordinary  pro- 
vision is  held  to  apply  only  to  the  place  of 
assembly  and  not  to  a  subsequent  change; 
Taylor  v.  Beckham,  10S  Ky.  278,  56  S.  W. 
177,  49  I*  R.  A.  258,  94  Am.  St.  Rep.  357. 

The  usual  provision  of  state  constitutions 
authorizing  the  governor  to  adjourn  the  leg- 
islature in  case  of  disagreement  between  the 
two  houses  is  held  to  vest  the  decision  wheth- 
er such  occasion  exists  in  the  executive;  In 
re  Legislative  Adjournment,  18  R.  I.  824,  27 
Atl.  324,  22  L.  R.  A.  716,  where  it  was  held 
that  the  governor  might  disregard  a  certifi- 
cate of  disagreement  and  examine  the  records 
of  the  two  house's  to  ascertain  whether  one 
existed.  In  another  case  the  power  of  the 
governor  was  not  determined,  as  it  was  deem- 


EXECUTIVE  POWER 


1121 


EXECUTIVE  POWER 


ed  sufficient  by  the  court  that  the  legislature 
had  in  fact  adjourned ;  People  v.  Hatch,  33 
111.  9.  See  an  interesting  discussion  of  "The 
Executive  Control  of  the  Legislature,"  by 
James  B.  Barnett,  41  Am.  I*  Rev.  215,  384. 

Congress  may  impose  on  any  executive 
officer  any  duty  which  is  not  repugnant  to 
any  right  which  is  secured  and  protected  by 
the  constitution;  Mai-bury  v.  Madison,  1  Cra. 
(U.  S.)  137,  2  L.  Ed.  60;  Kendall  v.  U.  S.,  12 
Pet.  (U.  S.)  524,  9  L.  Ed.  1181.  With  respect 
to  certain  executive  functions  which  spring 
from  the  legislation  of  congress,  after  the  oc- 
casion is  created  by  the  passage  of  a  law, 
the  authority  of  the  legislature  is  ended,  and 
the  uncontrolled  discretion  of  the  executive 
attaches  and  is  exercised  independently  of 
the  other  departments  of  the  government.  In 
the  exercise  of  such  powers  the  discretion  of 
the  subordinate  officer,  within  his  sphere,  is 
the  discretion  of  the  president.  Of  this  char- 
acter are  the  control  of  the  military  resourc- 
es of  the  government;  the  pardoning  power 
and  the  power  of  appointment,  all  of  which 
are  dormant  until  legislation  has  been  enact- 
ed for  creating  an  army  and  navy,  or  defining 
crimes  and  punishments  and  the  creation  of 
offices.  As  to  another  class  of  executive  pow- 
ers which  depend  entirely  upon  the  legislation 
of  congress  both  for  their  existence  and  their 
scope,  the  president  merely  executes  the  law. 
Within  this  class  necessarily  fall  the  greater 
number  of  executive  functions,  and  they  differ 
from  the  other  classes  in  that,  with  respect 
to  them,  the  president  may  be  deprived  of  all 
discretion. 

The  power  to  appoint  to  an  office  is  an  ex- 
ecutive function,  but  may  be  exercised  by 
the  legislature  or  the  courts  as  an  incident 
of  the  principal  power ;  that  is,  where  nec- 
essary to  the  exercise  of  full  legislative  or 
judicial  power;  State  v.  Hyde,  121  Ind.  20, 
22  N.  E.  644. 

A  law  providing  that  the  governor,  lieu- 
tenant governor  and  attorney-general  shall 
constitute  a  board  to  appoint  members  of  a 
railroad  commission  is  not  the  appointment 
of  those  officers  to  a  new  office,  but  merely 
imposing  new  duties  upon  them  and  is  valid ; 
Southern  Pac.  Co.  v.  Bartine,  170  Fed.  725 ; 
and  the  same  was  held  to  be  the  effect  of  a 
similar  designation  of  certain  executive  of- 
ficers to  act  as  a  state  board  of  elections  to 
appoint  election  officers;  Richardson  v. 
Young,  122  Tenn.  471,  125  S.  W.  664. 

Where  the  executive  has  the  power  and 
duty  of  appointing  the  fish  and  game  com- 
missioner, an  act  appropriating  money  for 
the  department  and  providing  that  no  part  of 
the  appropriation  shall  be  available,  so  long 
as  the  present  commissioner  remains  in  of- 
fice, is  unconstitutional  as  an  encroachment 
upon  the  appointing  power  of  the  executive ; 
State  v.  Gordon,  236  Mo.  142,  139  S.  W.  10.;. 
A  constitutional  provision  prohibiting  the 
legislative  department  from  exercising  ex- 
Bouv.— 71 


ecutive  powers  Is  violated  when  the  legisla- 
ture attempts  to  interfere  with  an  action  tak- 
en by  the  executive  under  existing  laws;  In 
re  Opinion  of  the  Justices,  208  Mass.  tjlO,  94 
N.  E.  852. 

The  authority,  vested  by  the  constitution 
in  the  legislature,  to  make  laws,  may  be  ex- 
ercised, leaving,  in  the  particular  instance,  to 
an  executive  officer,  or  some  other  .--. 
the  duty  of  determining  questions  of  fa< 
sential  to  the  application  thereof  which  in- 
volves administrative  discretion;  State  v. 
Chittenden,  127  Wis.  468,  107  X.  W.  500.  See 
Legislative  Power;  and  as  to  powers,  du- 
ties, acts  of  executive  officers,  boards  or  com- 
missions under  legislative  authority,  see  Del- 
egation. 

In  some  cases  the  courts  may  go  behind  the 
execution  of  statutory  power  by  an  execu- 
tive officer  as:  Where,  a  statute  authorizing 
the  summary  killing  of  diseased  animals, 
with  no  provision  for  compensation  to  the 
owner,  an  adjudication  of  the  cattle  com- 
missioners is  not  conclusive  and  an  order  is- 
sued by  them  for  killing  an  animal,  not  in 
fact  infected,  is  no  defense  to  those  executing 
the  order  in  a  subsequent  action  by  the  own- 
er for  compensation;  Miller  v.  Norton.  lr.L' 
Mass.  540,  26  X.  E.  100,  10  L.  R.  A.  lit;.  23 
Am.  St.  Rep.  850;  so  in  case  of  the  destruc 
tion  of  property  when  required  to  secure  the 
public  safety,  where  there  is  a  statute  au- 
thorizing it,  the  destruction  of  the  property 
is  conclusive,  so  far  as  the  res  is  concerned ; 
Salem  v.  R.  Co.,  98  Mass.  431,  06  Am. 
650 ;  but  the  right  is  preserved  to  the  owner 
for  a  hearing  in  a  subsequent  proceeding 
for  compensation;  Miller  v.  Horton,  152 
Mass.  540,  26  X.  E.  100,  10  L.  R.  A.  116,  1M 
Am.  St.  Rep.  850. 

In  other  cases  the  courts  will  not  go  behind 
the  decision  of  the  officer  charged  with  the 
execution  of  a  statute  as,  under  the  Chi: 
exclusion  and  Immigration  laws,  the  findi 
of  the  designated  officer,  when  approved  on 
appeal  by  the  secretary  of  commerce  and  la- 
id-, will  not  be  reviewed  by  the  courts,  but  is 
treated  by  them  as  final  and  conclusive;  U. 
S.  v.  Ju  Toy,  19S  U.  S.  253,  25  Sup.  Ct.  611, 
49  L.  Ed.  1040. 

The  executive  powers  which  are  derived 
directly  from  the  constitution  would  still  re- 
main if  all  the  legislative  acts  of  congress 
were  repealed.  As  to  these  the  president 
clothed  with  unrest  rained  discretion,  and  his 
acts  in  pursuance  of  them  are  purely  politi- 
cal, lie  cannot  be  controlled  nor  can  his  pow- 
ers be  enlarged  or  diminished  by  Legislation, 
though  through  the  medium  of  proper  laws 
he  may  be  aided  in  the  performance  of  the 
duties  thus  imposed  upon  him.  For  example, 
an  attempt  to  limit  the  pardoning  power  or 
control  its  effect  has  been  held  unconsti- 
tutional, where  the  supreme  court  having  de- 
clared that  the  power  of  the  president  dis- 
pensed with  the  necessity  of  proof  of  loyalty 


EXECUTIVE  POWER 


1122 


EXECUTIVE  POWER 


In  cases  authorizing  claims  for  the  value  of 
property  seized  as  captured  or  abandoned 
during  the  war;  congress  subsequently  en- 
acted that  such  proof  should  be  required  ir- 
respective of  any  executive  pardon  or  am- 
.  This  the  court  held  unconstitutional, 
saying:— "Now  it  is  clear  that  the  legislature 
cannot  change  the  effect  of  such  a  pardon 
any  more  than  the  executive  can  change  a 
law.  Yet  this  is  attempted  by  the  provision 
under  consideration.  The  court  is  required 
to  receive  special  pardons  as  evidence  of  guilt 
and  to  treat  them  as  null  and  void.  It  is  re- 
quired to  disregard  pardons  granted  by  proc- 
lamation on  condition,  though  the  condition 
has  been  fulfilled,  and  to  deny  them  their  le- 
gal effect.  This  certainly  impairs  the  execu- 
tive authority  and  directs  the  court  to  be  in- 
strumental to  that  end."  U.  S.  v.  Klein,  13 
Wall.  (U.  S.)  128,  14S,  20  L.  Ed.  519.  But 
when  a  claim  was  made  against  the  govern- 
ment for  payment  for  supplies  furnished  be- 
fore the  war,  it  was  held  that  the  prohibitory 
legislation  of  congress  prevented  a  recovery, 
because  the  disability  of  the  claimant  to  re- 
ceive a  debt  from  the  United  States  did  not 
arise  as  a  consequence  of  any  offence  but  out 
of  a  state  of  war,  and  ended  with  the  close 
of  the  war,  and  not  by  reason  of  the  pardon, 
which  operated  only  to  relieve  him  from  pun- 
ishment for  his  acts  and  gave  him  no  new 
rights ;  Hart  v.  U.  S.,  118  U.  S.  62,  6  Sup.  Ct 
9G1,  30  L.  Ed.  96. 

The  question  has  been  considered  from  time 
to  time  of  the  extent  of  the  power  of  the  pres- 
ident over  newly  acquired  territory.  After 
the  acquisition  of  territory  it  has  been  gen- 
erally considered  in  countries  governed  by 
the  English  law  that  the  temporary  powers 
of  government  are  vested  in  the  executive  un- 
til it  is  assumed  by  the  legislative  branch  of 
the  government ;  Cowp.  204 ;  Leitensdorfer 
v.  Webb,  20  How.  (U.  S.)  176,  15  L.  Ed.  891 ; 
Cross  v.  Harrison,  16  How.  (U.  S.)  164,  14  L. 
Ed.  889,  where  after  the  Mexican  war  the 
exercise  by  the  president  of  what  were  really 
legislative  powers,  in  relation  to  customs,  was 
sustained  by  the  supreme  court.  And  after 
the  acquisition  of  the  canal  zone  on  the  Isth- 
mus of  Panama,  in  the  absence  of  congres- 
sional action  with  respect  to  its  government, 
the  president  exercised  all  the  power  of  gov- 
ernment. See  21  Harv.  L.  Rev.  547,  where 
this  subject  is  discussed  and  the  conclusion 
reached  that  the  action  of  the  president  was 
warranted. 

As  to  his  express  powers  the  president  is 
equally  independent  of  the  courts  and  can  be 
held  for  maladministration  of  them  only  by 
impeachment;  Marbury  v.  Madison,  1  Cra. 
(U.  S.)  165,  2  L.  Ed.  60 ;  Kendall  v.  U.  S.,  12 
Pet.  524,  9  L.  Ed.  1181 ;  U.  S.  v.  Kendall,  5 
Cra.  C.  C.  163,  Fed.  Cas.  No.  15,517. 

The  command  of  the  army  and  navy  is  es- 
sentially an  executive  power;  2  Sto.  Const. 
§  149;  2  Kent  282;  though  it  did  not  pass 
without  criticism ;    2  Elliot,  Deb.  365 ;    3  id. 


103,  108 ;  the  power  to  call  out  the  militia  is 
discretionary  and  his  judgment  of  the  ne- 
cessity is  final ;  Martin  v.  Mott,  12  Wheat. 
(U.  S.)  29,  6  L.  Ed.  537 ;  and  he  may  delegate 
the  command  of  it;  Rawle,  Const.  193;  2 
Sto.  Const.  (5th  ed.)  §  1492,  n.  2.  See  Dilling- 
ham v.  Snow,  5  Mass.  548. 

The  power  to  require  opinions  from  the 
heads  of  departments  has  been  termed  a  mere 
redundancy ;  Federalist,  No.  74 ;  but  it  is 
said  to  be  not  without  its  use  and  frequently 
acted  upon ;  2  Sto.  Const.  §  1493 ;  especially 
in  two  notable  instances,  by  President  Wash- 
ington, 1793,  relative  to  the  condition  of  af- 
fairs between  France  and  Great  Britain,  and 
by  President  Grant  in  1873  in  reference  to 
the  subject  of  expatriation;  Miller,  Const. 
U.  S.  185. 

The  pardoning  power  of  the  president  ex- 
tends to  any  case  in  which  it  might  have 
been  exercised  under  the  English  law ;  U.  S 
v.  Wilson,  7  Pet.  (U.  S.)  150,  8  L.  Ed.  640 
In  re  Wells,  18  How.  (U.  S.)  307,  15  L.  Ed 
421 ;  and  includes  the  power  to  grant  a  con 
ditional  pardon  ;  In  re  Garland,  4  Wall.  (U 
S.)  333,'  18  L.  Ed.  366 ;  to  relieve  against  for 
feiture  of  property  under  a  confiscation  act; 
Armstrong's  Foundry,  6  Wall.  (U.  S.)  766,  18 
L.  Ed.  882 ;  or  release  from  fines,  penalties, 
and  forfeiture  which  accrue  from  the  offence ; 
Osborn  v.  U.  S.,  91  U.  S.  474,  23  L.  Ed.  38S ; 
or  contempt  of  court;  State  v.  Sauvinet,  24 
La.  Ann.  119,  13  Am.  Rep.  115 ;  it  includes 
amnesty ;  U.  S.  v.  Klein,  13  Wall.  (U.  S.)  128, 
20  L.  Ed.  519 ;  and  a  general  amnesty  proc- 
lamation includes  domiciled  aliens;  Carlisle 
v.  U.  S.,  16  Wall.  (U.  S.)  14S,  21  L.  Ed.  426. 
The  power  of  the  president  to  issue  a  proc-> 
lamation  of  general  amnesty  has  been  much 
drawn  into  question,  and  it  was  denied  in  a 
report  of  the  judiciary  committee  of  the  sen- 
ate made  Feb.  17,  1S69,  that  he  could  do  if 
without  the  authority  or  assent  of  congress! 
It  was  the  subject  of  legislation,  an  express 
power  being  granted  to  the  president  by  sec- 
tion 13  of  the  act  of  June  17,  1862,  which  was 
repealed  by  act  of  Jan.  19, 1867.  It  was,  how- 
ever, generally  considered  that  the  subject 
was  within  the  power  of  the  executive,  and  it 
was  exercised  by  Presidents  Washington; 
Adams,  Madison,  Lincoln,  and  Johnson,  and 
independently  of  congressional  action.  See  an 
extended  discussion  of  the  subject  in  8  Am. 
Law  Reg.  N.  S.  513,  577.  The  president  may 
act  on  pardons  immediately,  or  first  refer 
them  to  the  executive  departments;  14  Op. 
Att.  Gen.  20. 

The  president  has  no  power  to  interfere 
with  a  public  prosecution,  except  to  put  an 
end  to  it  and  discharge  the  accused.  He  may 
not  change  the  proceedings  or  place  of  trial ; 
U.  S.  v.  Corrie,  Fed.  Cas.  No.  14,869 ;  1  Brun- 
ner,  Col.  Cas.  686. 

The  executive  cannot,  except  as  permitted 
by  the  constitution,  grant  a  reprieve  or  fix  a 
day  for  the  execution  of  a  convicted  crim- 
inal, that  being  a  judicial  power;    Clifford 


EXECUTIVE  POWER 


1123 


EXECUTIVE  POWER 


v.  Heller,  63  N.  J.  L.  105,  42  Atl.  155,  57  L.  R. 
A.  312.  His  pardoning  power  is  not  affected 
by  a  provision  in  an  act  giving  one-half  of  the 
fine  imposed  to  an  informer;  Meul  v.  People, 
198  111.  258,  04  N.  E.  1106;  nor  by  a  provi- 
sion authorizing  the  commutation  of  sentence 
for  good  conduct  and  defining  the  credit  to  be 
given;  Fite  v.  Snider,  114  Tenn.  646,  SS  S. 
W.  941,  1  L.  R.  A.  (N.  S.)  520,  4  Ann.  Cas. 
1108 ;  or  a  provision  for  indeterminate  sen- 
tences; People  v.  Cook,  147  .Mich.  127,  110 
N.  W.  514;  or  release  on  parole;  People  v. 
Madden,  120  App.  Div.  338,  105  N.  Y.  Supp. 
554;  People  v.  Nowasky,  254  111.  140,  !>s  X. 
E.  242;  so  that  in  none  of  these  cases  was 
the  act  considered  unconstitutional  as  an  in- 
vasion of  the  pardoning  power  of  the  execu- 
tive. So  an  act  creating  a  medical  council 
and  state  boards  of  medical  examiners  where- 
by the  appointing  power  of  the  governor  was 
limited  by  restricting  the  choice  to  a  certain 
class  of  applicants  was  valid  ;  In  re  Registra- 
tion of  Campbell,  197  Pa.  581,  47  Atl.  860; 
and,  since  the  power  of  appointment  to  otlice 
is  not  exclusively  an  executive  prerogative,  so 
was  an  act  making  officers  of  the  board  of 
agriculture  elective  by  general  assembly ; 
Cunningham  v.  Sprinkle,  124  N.  C.  638,  33  S. 
E.  138 ;  but  the  legislature  has  no  power  to 
authorize  a  state  board  of  auditors  to  deter- 
mine the  guilt  or  innocence  of  a  person  con- 
victed of  crime,  as  the  result  of  such  action 
would  be  to  constitute  such  board  a  court  of 
appeals  without  any  constitutional  warrant 
therefor;  Allen  v.  Board,  122  Mich.  324,  81 
N.  W.  113,  47  L.  R.  A.  117,  SO  Am.  St.  Rep. 
573. 

The  constitutional  pardoning  power  of  a 
governor  does  not  apply  to  penalties  for  the 
violation  of  municipal  ordinances,  and  conse- 
quently a  statute  authorizing  the  mayor, 
with  the  consent  of  the  aldermen,  to  remit 
such  penalties,  is  not  invalid  as  an  interfer- 
ence with  the  pardoning  power  of  the  gov- 
ernor; Allen  v.  McGuire,  100  Miss.  7S1,  57 
South.  217,  3S  L.  R.  A.  (N.  S.)  190. 

The  power  to  make  treaties  "embraces  all 
sorts  of  treaties,  for  peace!  or  war ;  for  com- 
merce or  territory;  lor  alliances  or  succors; 
for  indemnity  for  injuries  or  payment  of 
debt;  for  the  recognition  and  enforcement  of 
principles  of  public  law;  and  for  any  other 
purposes  which  the  policy  or  interests  of  in- 
dependent sovereigns  may  dictate  in  their 
intercourse  with  each  other."  2  Sto.  Const, 
sec.  1508.  This  power  is  plenary ;  Holmes  v. 
Jennison,  14  Pet.  (U.  S.)  540,  014,  10  L.  Ed, 
579;  U.  S.  v.  Forty-Three  Gallons  of  Whis- 
key, etc.,  93  U.  S.  1SS,  23  L.  Ed.  M0 ;  it  in- 
cludes removing  the  disabilities  of  aliens  to 
inherit;  5  Cal.  381;  or  enabling  them  to  pur- 
chase and  hold  lands  in  the  United  S 
Chirac  v.  Chirac,  2  Wheat.  (U.  S.)  259,  4  L. 
Ed.  234. 

An  important  question  has  frequently  aris- 
en as  to  the  effect  of  this  power  where  legis- 
lation was  required  to  give  effect  to  a  treaty. 


"In  regard  to  this,  any  serious  difficulty  has 
been  averted  by  the  wisdom  and  forbearance 
of    the    house    of    represent.!  Miller, 

Const.  1".   S.   K,  4.   181,  ai 

thorlties  cited;    Pom.  Const  L.  $§  676 
1  Kent  286;   Tbi  .. 

In  the  La  Abra  Mining  Case,  it  was  held 
no  interference  with  the  constitutional  func- 
tions   of   the   president,    in    connection    with 
matters  involved  in  the  relations  between  this 
country  and  Mexico,  that  provision  was  made 
by  act  of  congress  for  a  suit  in  the  court  of 
Claims  to  determine  whether  then 
fraud  in  obtaining  the  award,  the  amount  of 
which  had  been  paid  by  Mexico  to  the  i 
States    for    the    claimants;     La    Alia 
Min.  Co.  v.  U.  S.,  175  U.  S.  423,  2U  S 
168,  44  L.  Ed.  223. 

The  power  of  appointment  includes  nomi- 
nation and  appointment,  and  the  power  to 
commission  is  distinct,  but  when  the  commis- 
sion is  Signed  and  scale,],  tin'  1'  gal  right  of 
the  officer  is  vested  and  delivery  of  tic 
mission  is  not  essential ;  Mari.ury  v.  .Madison, 
1  Cra.  (U.  S.)  137,  2  L.  Ed.  60;  U.  S.  v.  Le 
Baron,  19  How.  (U.  S.)  71.  1.",  L.  Ed.  .".75.  See 
Constitution  of  the  United  States.  The 
Domination  is  a  recommendation  in  writing; 
Marbury  v.  Madison,  1  Cra.  (U.  S.)  137,  -  L. 
Ed.  00;  7  Op.  Att.  Gen,  186;  and  the 
can  only  affirm  or  reject ;  '■>  <  >p.  Att.  <  ten.  188  : 
congress  cannot  by  law  designate  the  person 
to  till  an  Office;  U.  S.  v.  Ferreira,  13  How.  (U. 
S.)  40,  14  L.  Ed.  41*. 

It  was  held  by  Cadwalader,  J.,  in  the  Case 
of  the  District  Attorney,  2  Cadw.  Oas.  138,  7 
Am.  L.  Keg.  (N.  S.)  7^<i.  Fed.  Cas.  No.  3,924, 
that  the  president  cannot  make  a  temporary 
appointment  in  a  recess,  if  the  senate  was 
in  session  when  or  since  the  vacancy  occur- 
red; but  Woods.  J.,  held  directly  contra  in  a 
case  also  involving  the  right  to  a  similar  of- 
fice; In  re  Farrow,  i  Woods  491,  :;  Fed.  nj. 
where  he  cited  the  opinions  of  ten  attorney- 
generals  which  are  treated  as  authoritative 
and  declared  "to  outweigh"  the  opinion  of 
Judge  Cadwalader.  The  latter,  however,  dis- 
putes the  statement  of  an  unbroken  pra<  the 
or  an  acquiescence  of  the  senate  and  con- 
siders the  executive  opinions  to  have  been 
I.-immI  upon  erroneous  assumptions  of  both. 
The  two  opinions  appear  to  present  fully  the 
arguments  on  each  side  of  the  question  and 
no  other  case  has  been  found  except  a  deci- 
sion that  an  original  recess  appointment  can- 
not be  made  to  fill  an  office  created  at  the 
previous  Beaston;  Schemes  v.  Peay,  l  DHL 
268,  Led.  Cas.  No.  12,451,  where  the  opinion 
ivalader,  J.,  is  said  to  dispense  witb 
further  argument. 

.Judge  Woods  cited  the  opinions  of  at  least 
ten  attorney-generals,  beginning  with  Wirt 
aid  ending  with  Evarta  Since  that  time 
opinions  to  the  same  effect  have  been  given 
by  Attorney-General  Williams;  14  Opin.  663 
(when-  he  Bald,  "So  far  as  this  department  is 
concerned,    the  question   is    settled');     Stan- 


EXECUTIVE  POWER 


1124 


EXECUTIVE  POWER 


bery,  12  Opin.  32  (where  the  power  of  the 
president  to  make  recess  appointments  to  fill 
vacancies  was  said  to  be  "without  any  lim- 
itation as  to  the  time  when  they  first  occur- 
red");  Devens,  15  Opin.  207;  16  id.  522 
(where  alone  among  these  opinions  is  a  ref- 
erence to  Judge  Cadwalader's  decision  as  the 
opinion  of  a  single  judge  of  admitted  ability, 
but  of  a  subordinate  court  and  "not  of  great 
authority  or  weight  against  the  opinions  cit- 
ed") ;  he  also,  citing  Cushing,  holds  that  "may 
happen"  means  may  happen  to  exist;  quoted 
by  Hoyt ;  26  Opin.  234  ;  following  Devens,  as 
conclusive,  is  Brewster,  17  Opin.  530;  18  id. 
29;   and  Miller,  19  id.  261. 

Nor  can  a  governor  appoint  a  senator  to 
fill  a  vacancy  which  occurred  during  a  pre- 
vious recess,  a  session  of  the  senate  having 
intervened.  This  was  determined  in  the  Cas- 
es of  Johns,  Williams  and  Phelps  (1  Cont*. 
El.  Cas.  874 ;  2  id.  612  and  613),  all  of  which 
were  cited  by  Judge  Cadwalader  as  pertinent 
by  reason  of  the  use  in  both  sections  of  the 
constitution  of  the  words  "may  happen" 
which  he  interprets  as  meaning  occur  and 
not  exist;  and  no  vacancy  can  occur  in  an 
office  until  it  has  once  been  filled;  Ex  parte 
podd,  11  Ark.  152 ;  contra,  State  v.  Irwin,  5 
Nev.  Ill,  where  it  was  held  that  when  a  new 
office  is  created  and  no  person  appointed  to 
fill  it,  there  is  a  vacancy,  and  this  was  the 
view  taken  by  Attorney-General  Miller,  who 
said  that  a  vacancy  means  that  an  office  ex- 
ists of  which  there  is  no  incumbent ;  19  Opin. 
261. 

With  respect  to  state  offices  it  has  also  been 
held  that  a  governor  cannot  make  a  recess 
appointment  unless  the  vacancy  occurred 
since  the  adjournment  of  the  general  as- 
sembly ;  People  v.  Forquer,  1  Breese  (111.) 
104 ;  but  where  the  sittings  of  the  senate  are 
terminated  by  a  long  adjournment,  it  is  not 
"in  session,"  and  an  appointment  by  the  gov- 
ernor during  such  adjournment  is  valid ;  Peo- 
ple v.  Fancher,  50  N.  Y.  288.  Atty.  Gen. 
Knox,  however,  decided  that  the  president 
cannot  make  a  recess  appointment  in  a  holi- 
day adjournment,  and  that  a  recess  means 
the  period  after  the  final  adjournment  of 
congress;    23  Opin.  599. 

Whether  a  newly  created  office,  not  before 
filled,  is  a  vacancy,  within  the  constitutional 
power  of  the  president  to  make  temporary  ap- 
pointments, is  a  question  upon  which  courts 
and  attorneys-general  have  differed.  The 
most  reasonable  conclusion  and  that  best  sup- 
ported by  authority  seems  to  be  that  it  is  not ; 
Cooley,  Const.  Law  104,  n.  5;  Ordronaux, 
Const.  Leg.  107;  and  it  is  said  that  if  the 
senate  is  in  session  when  offices  are  created 
by  law  and  no  appointment  is  made,  no  va- 
cancy exists  in  such  sense  that  the  president 
can  appoint  during  the  recess;  id.;  2  Sto. 
Const.  §  1559;  Case  of  District  Attorney  of 
United  States,  7  Am.  L.  Reg.  (N.  S.)  786,  Fed. 
Cas.  No.  3,924 ;    In  re  Farrow,  3  Fed.  112. 

Strictly   speaking,   an  appointment  to   of- 


fice is  an  executive  act;  Taylor  v.  Com.,  3  J. 
J.  Marsh.  (Ky.)  404;  2  Goodu.  Comp.  Adm. 
L.  22 ;  but  in  many  cases  it  has  been  held 
that  it  may  be  exercised  by  the  legislative 
power,  and  this  in  the  absence  of  negative 
constitutional  limitation  is  held  valid;  id.; 
Cooley,  Const.  Lim.  115,  n.;  Mayor,  etc.,  of 
Baltimore  v.  State,  15  Md.  376,  74  Am.  Dec. 
572 ;  People  v.  Mahaney,  13  Mich.  481 ;  Peo- 
ple v.  Hurlbut,  24  Mich.  44,  9  Am.  Rep.  103 ; 
Bridges  v.  Shallcross,  6  W.  Va.  562 ;  contra, 
State  v.  Denny,  118  Ind.  449,  21  N.  E.  274,  4  L. 
R.  A.  65;  City  of  Evansville  v.  State,  118 
Ind.  426,  21  N.  E.  267,  4  L.  R.  A.  93 ;  State  v. 
Kennon,  7  Ohio  St.  546 ;  State  v.  Covington, 
29  Ohio  St.  102. 

See,  generally,  as  to  the  president's  power 
of  appointment  and  removal,  2  Sto.  Const. 
§§  1545-1553;  Rawle,  Const.  166;  Sergeant, 
Const,  ch.  29;  Miller,  Const.  U.  S.  156;  Pom. 
Const.  L.  §§  642-651. 

Among  the  executive  powers  of  first  im- 
portance vested  in  the  president  is  the  man- 
agement of  foreign  affairs,  including  the 
treaty  power,  to  be  exercised  with  the  con- 
sent of  the  senate,  and  the  power  to  appoint 
and  receive  foreign  ministers,  both  of  which 
are  expressed  in  the  constitution. 

A  question  much  discussed  prior  to  the  war 
with  Spain  is  whether  the  recognition  of  a 
foreign  revolutionary  government  is  a  matter 
entrusted,  under  the  constitution,  to  the  dis- 
cretion of  the  president  acting  alone,  or 
whether  it  is  vested  in  congress,  or  requires 
the  joint  action  of  both  of  the  political  de- 
partments of  the  government.  It  has  been 
contended  on  the  one  hand  that  this  power 
"rests  exclusively  -with  the  executive,"  and  that,  "a 
resolution  on  the  subject  by  the  senate  or  by  the 
house,  by  both  bodies  or  by  one,  whether  concur- 
rent or  Joint,  is  inoperative  as  legislation,  and  is 
important  only  as  advice  of  great  weight  voluntar- 
ily tendered  to  the  executive  regarding  the  man- 
ner in  which  he  shall  exercise  his  constitutional 
functions." 

Such  is  the  view  said  to  have  been  express- 
ed by  Secretary  Olney  in  a  public  statement, 
which,  although  not  an  official  document,  was 
generally  accepted  as  a  fit  expression  of  the 
opinion  of  those  who  take  the  extreme  view 
of  the  prerogative  of  the  executive  on  this 
subject.  The  occasion  of  this  utterance  was 
a  unanimous  report  of  the  Committee  on  For- 
eign Affairs  of  the  Senate,  recommending  the 
passage  of  a  joint  resolution,  "That  the  inde- 
pendence of  the  Republic  of  Cuba  be,  and  the 
same  is,  hereby  acknowledged  by  the  United 
States  of  America." 

This  precise  view  was  maintained  by  Sec- 
retary Seward  in  an  instruction  to  Minister 
Dayton,  infra. 

The  opposite  opinion  is  based  upon  the  idea 
that,  because  the  constitution  vests  in  con- 
gress the  power  to  declare  war  (which  is  lia- 
ble to  be  a  consequence  of  the  recognition  of 
a  new  government)  not  only  is  the  action  of 
that  body  necessary,  but  it  is  the  proper  de- 
partment of  the  government  to  act  in  such 


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EXECUTIVE   I'oWKR 


case.  At  least  it  is  contended  that  congress 
has  the  power  to  act  even  if  its  power  is  not 
exclusive. 

The  argument  in  favor  of  the  absolute  and 
exclusive  control  of  the  subject  by  congress  is 
substantially  this:  The  recognition  of  the  in- 
dependence of  a  people  is  from  its  very  na- 
ture the  creation  of  obligations  arising  from 
international  law,  and  therefore  must  belong 
to  the  law-making  power;    it  is  also  a  su- 
preme act  of  sovereignty  and  must  be  done 
by   that  department  of  the   government   in 
which  the  national  sovereignty  resides.    Un- 
der the  constitution,  congress  is  Invested  with 
almost  all  the  prerogatives  of  sovereignty,  the 
only  one  granted  to  the  president  being  the 
pardoning  power,  and  even  that  is  denied  in 
cases  of  impeachment.     The  power  in  ques- 
tion is  not  directly  granted  to  the  president ; 
therefore,  is  not  one  of  his  functions  unless 
necessary  to  the  full  and  proper  exercise  of 
some  power  directly  granted  to  him  or  inher- 
ent in  the  office.    His  general  inherent  func- 
tion is  to  execute  the  laics,  to  which  this  pow- 
er of  recognition  has  no  relation,  unless  it 
be  exercised  in  pursuance  of  law.     The  only 
expressed  power  from  which  it  is  sought  to 
imply  this  far-reaching  authority  is  that  of 
receiving    ambassadors    and    ministers,    and 
that,  it  is  urged,  is  simply  a  ceremonial  duty, 
imposed  upon  him  as  the  medium  through 
which    the    government    communicates    with 
foreign  governments.     As  the  power   of   re- 
ceiving  ambassadors   and   ministers   can   be 
exercised  pursuant  to  the  direction  of  con- 
gress in  doubtful  cases,  the  power  to  deter- 
mine the  existence  or  independence  of  a  na- 
tion is  not  necessarily  involved  in  the  con- 
stitutional  grant   of    power   to    receive   am- 
bassadors, etc.    If  this  power  is  vested  in  the 
executive,  it  is  unlimited  and   involves  the 
authority,  so  far  as  this  government  is  con- 
cerned, to  alter  the  map  of  the  world,  change 
the  relation  of  this  government  to  other  gov- 
ernments,  and  involve  the  country  in  war. 
That  such  uncontrolled  executive  power  over 
foreign  relations  was  intended,  it  is  contend- 
ed, cannot  be  reconciled  with  the  fact  that 
the  president  cannot  declare  war,  or  make  a 
treaty,  or  appoint  an  ambassador  or  consul 
without  the  consent  of  the  senate. 

The  argument  from  this  point  of  view  is 
very  forcibly  stated  in  a  speech  by  Senator 
Bacon,  Jan.  13,  1S97,  in  the  United  States 
senate,  made  expressly  to  take  issue  with 
the  position  taken  by  Secretary  Olney,  supra. 
A  third  view,  as  stated  in  the  preliminary 
statement  of  the  question  in  the  Hale  memoh 
randum,  is  that,  under  the  constitution  and 
according  to  precedent, 

"the  recognition  of  the  independence  of  a  new  for- 
eign power  is  an  act  of  the  executive  (] 
alone,  or  president  and  senate),  and  not  of  the  leg- 
islative branch  of  the  government,  although  the 
executive  branch  may  properly  first  consult  the 
legislative.  While  the  legislative  branch  of  the 
government  cannot  directly  exercise  the  power  of 
recognizing  a  foreign  government,  because  that  is  a 
power    executive    or    judicial    in    nature    (and    one 


which  the  Judiciary,  by  refusing  independently  to 
examine  the  question,  cast  entirely  upon  the  execu- 
tive), nevertheless,  if  a  recognition  of  such  inde- 
pendence is  liable  to  become  a  casus  belli  with 
some  other  foreign  power,  it  is  most  advisable  as 
well  as  proper  for  the  executive  first  to  consult  the 
legislative  branch  as  to  its  wishes  and  postpone  Its 
own  action  if  not  assured  of  legislativi 
Cong.  Rec.  54th  Cong.  2d  Sess.  663. 

The  basis  of  the  argument  in  favor  of  leg- 
islative participation  in  such  action  is  main- 
ly the  power  to  declare  war  and.  as  particu- 
larly urged  by  Mr.  Clay,  as  quoted  in  the 
Hale  memorandum  (id.  681),  the  power  to  reg- 
ulate commerce.  Tlie  argument  in  l'a\ 
exclusive  executive  power  is  found  in  tin 
eral  control  of  foreign  relations,  as  to  which 
the  only  expressed  powers  are  to  "make 
ties"  and  to  "receive  ambassadors  and  other 
ministers."  The  argument  of  greater  force 
in  favor  of  executive  control  is,  however,  not 
that  the  power  in  question  is  included  in  the 
s] .ci  i tic  powers  named  but  that  it  is  a  part  of 
the  general  grant  of  executive  power;  that 
all  duties  in  connection  with  foreign  rela- 
tions, not  otherwise  specified,  are  placed  up- 
on the  executive,  and  that  the  two  powers 
enumerated  are  merely  illustrative  and  not" 
exclusive.  This  third  view  is  thus  stated  in 
a  memorandum  submitted  to  the  United 
States  senate  by  Senator  Hale  in  connection 
with  resolutions  peuding  for  the  recognition 
of  Cuba,  and  printed  as  Ex.  Doc.  No.  56,  2d 
Sess.  54th  Cong. 

"It  is  in  the  light  of  this  conception  of  the  ex- 
ecutive character  of  foreign  negotiations  and  acts 
concerning  foreign  relations  that  our  constitution 
gave  the  president  power  to  send  and  receive  min- 
isters and  agents  to  or  from  any  country  he  sees 
fit,  and  when  he  sees  fit,  and  not  to  send  or  re- 
ceive any,  as  he  may  think  best.  Also,  the  power 
to  make  treaties ;  that  is,  to  negotiate  with  or 
without  agents,  as  he  may  prefer,  when  he  may 
prefer,  or  not  at  all,  if  he  prefer;  to  draw  up  such 
articles  as  may  suit  him;  and  to  ratify  the  acts  of 
his  plenipotentiaries,  instructed  by  him,  the  only 
qualification  of  his  power  being  the  advice  and  con- 
sent of  the  states  in  the  senate  to  the  treaty  he 
makes.  These  grants  confirm  the  executive  charac- 
ter of  the  proceedings,  and  indicate  an  Intent  to 
give  all  the  power  to  the  president,  which  the  fed- 
eral government  itself  was  to  possess— the  general 
control  of  foreign  relations. 

At  the  time  of  the  presentation  to  the 
ate  of  the  Hale  memorandum,  Senator  Boar, 
after  remarking  that  it  was  not  the  time  for 
full  debate,  said: 

"Therefore,  I  wish  to  bring  out  distinctly,  if  I  can, 
by  a  question  to  the  senator  from  Maine,  whether, 
in  his  researches  into  the  history  of  this  country 
for  a  hundred  years,  in  which  we  must  have  recog- 
nized foreign  governments  more  than  a  hundred 
times,  taking  all  the  numbers  of  the  governments 
of  the  world  and  their  political  changes  and  revo- 
lutions which   have   established   new   governments— 

"Mr.  Hai.k.    Over  a  hundred. 

"Mr.  Hoar.  There  must  be  over  a  hundred  cases, 
as  the  senator  says.  Is  there  a  single  instance 
where  in  fact  our  relations  with  the  foreign  coun- 
try have  not  been  determined  by  the  act  of  recog- 
nition by  the  president  of  the  United  States  and, 
without  congress?     Has  there   been  a  single  one? 

"Mr.  [{ALB.  As  the  result  of  some  considerable, 
and  what  I  have  tried  to  make  faithful,  examina- 
tion  of  the   subject  and   of  what  others  have  done 


EXECUTIVE  POWER 


1126 


EXECUTIVE   POWER 


for  me,  I  answer  the  senator  from  Massachusetts 
that  I  do  not  find  one. 

"Mr.  Allen.  As  this  question  is  very  important 
and  going  out  to  the  country  to  be  criticised,  I  ask 
the  senator  from  Maine  whether  he  will  not  state 
to  the  senate  whether  he  finds  any  instance  in  the 
history  of  this  country  where  the  question  of  in- 
dependency was  determined  to  belong  to  the  execu- 
tive department  exclusively? 

"Mr.  Hale.  In  every  one  of  the  cases  that  have 
been  referred  to  by  the  senator  from  Massachusetts 
(Mr.  Hoar)  the  recognition  was  made  by  the  ex- 
ecutive department,  acted  upon,  submitted  to,  and 
not  questioned."  Cong.  Rec.  54th  Cong.,  2nd  Sess. 
682. 

The  extent  of  executive  control  of  foreign 
relations  was  the  subject  of  an  extended  de- 
bate in  congress  in  1796,  upon  a  resolution 
calling  upon  the  president  for  details  of  the 
negotiations  leading  up  to  the  Jay  treaty 
with  England,  the  exact  question,  however, 
being  the  effect  of  a  treaty  when  negotiated. 
See  Treaty. 

With  respect  to  the  express  power  of  the 
executive  to  make,  treaties,  that  is  shared 
with  the  senate  and  there  is  no  precedent  for 
the  primary  act  of  recognition  of  a  new  for- 
eign state,  by  the  joint  action  of  president 
and  senate  under  the  treaty-making  power. 
As  to  the  power  to  "receive  ambassadors  and 
other  ministers,"  though  it  was  much  debated 
as  giving  the  president  too  much  power,  the 
only  comments  on  it  in  the  Federalist  are 
the  following: 

"This,  though  it  has  been  a  rich  theme  of  decla- 
mation, is  more  a  matter  of  dignity  than  of  au- 
thority. It  is  a  circumstance  which  will  be  without 
consequence  in  the  administration  of  the  Govern- 
ment; and  it  was  far  more  convenient  that  it 
should  be  arranged  in  this  manner,  than  that  there 
should  be  necessity  for  convening  the  legislature,  or 
one  of  .its  branches,  upon  every  arrival  of  a  foreign 
minister ;  though  it  were  merely  to  take  the  place 
of  a  departed  predecessor."  Federalist,  No.  69,  p. 
326. 

"Except  some  cavils  about  the  power  of  .  .  . 
receiving  ambassadors,  no  objection  has  been  made 
to  this  class  of  authorities ;  nor  could  they  possibly 
admit  of  any.  ...  As  to  the  reception  of  am- 
bassadors, what  I  have  said  in  a  former  paper  will 
furnish  a  sufficient  anwer."    id.  No.  77,  p.  362. 

The  executive  can  alone  appoint  a  diplo- 
matic representative  to  a  new  government, 
but  to  do  this  there  is  required  congressional 
action  to  provide  for  the  payment  of  his  sal- 
ary, and  it  might  be  an  inference  from  the 
practice  of  the  government  that  the  creation 
of  an  office,  either  directly  or  by  provision  for 
compensation  to  its  incumbent,  is  a  prerequi- 
site to  the  appointment  of  a  person  to  exercise 
any  public  functions.  It  has  been  argued,  on 
the  other  hand,  that  such  an  officer,  appoint- 
ed by  the  president  and  senate,  and  his  posi- 
tion as  an  officer  having  been  established, 
might  serve  gratuitously  or  be  paid  out  of 
the  contingent  fund.  It  would  seem,  how- 
ever, that  it  might  be  urged  with  more  force 
that  merely  from  an  appointment  authorized 
by  the  constitution,  there  would  arise  an  ob- 
ligation to  provide  compensation,  of  the  same 
character   as   those   created   in   many   cases 


without  the  direct  action  of  congress,  notably 
under  the  power  to  make  a  treaty  (q.  v.). 

In  1798  a  discussion  arose  as  to  this  power,  in 
which  was  considered  the  possible  clashing  between 
the  appointing  power  of  the  president  and  the  ap- 
propriating financial  power  of  congress.  In  the 
course  of  debate  Mr.  Otis  concluded  his  remarks 
with  some  observations  not  less  pertinent  to  the 
present  question  than  to  that  to  which  they  were 
addressed:  "It  was  owing  to  the  apparent  contra- 
dictions arising  from  a  theoretical  view  of  consti- 
tutions like  ours  that  they  were  pronounced  to  be 
impracticable  by  some  of  the  best  writers  of  an- 
tiquity. And  these  abstract  questions  and  extreme 
cases  were  not  calculated  to  reconcile  the  minds  ot 
our  citizens  to  our  excellent  form  of  government. 
It  is  a  plain  and  conclusive  reply,  by  which  all 
such  objections  are  obviated,  that  the  constitution 
is  not  predicated  upon  a  presumed  abuse  of  power 
by  any  department,  but  on  the  more  reasonable 
confidence  that  each  will  perform  its  duty  within 
its  own  sphere  with  sincerity,  that  division  of  senti- 
ment will  yield  to  reason  and  explanation,  and  that 
extreme  cases  are  not  likely  to  happen." 

And  Attorney-General  Cushing  objected  to  an  act 
in  which  it  was  provided  that  the  president  "shall" 
appoint  a  consul  at  Port  au  Prince,  that  it  involved 
the  diplomatic  recognition  of  the  Haytien  empire, 
which  rested  entirely  within  the  discretion  of  the 
president.    7  Op.  Attys.  Gen.  242. 

Turning  to  the  precedents,  the  right  to  recognize 
a  foreign  power  was  first  discussed  in  1S18  with 
reference  to  the  South  American  republics.  The 
matter  first  came  up  on  an  appropriation  to  pay  a 
minister,  which  was  defeated,  after  a  debate,  in 
which  Mr.  Clay  maintained  that  recognition  might 
be  either  by  the  president  in  receiving  or  sending 
a  minister,  or  by  congress  under  the  commerce 
clause  ;  and  the  relation  of  the  two  powers  of  gov- 
ernment to  the  subject  was  much  considered;  Ann. 
of  Cong.  (1818),  pp.  1468-1608-1655.  The  subject  was 
at  this  time  much  discussed  both  in  congress  and 
between  the  president  and  individual  members,  so 
much  so  that  Mr.  Adams,  the  secretary  of  state,  in 
his  memoirs,  mentions  jocular  remarks  made  in  the 
cabinet  in  that  connection  about  the  power  of  im- 
peachment; 4  Memoirs,  J.  Q.  Adams  204-206.  Sub- 
sequently the  subject  was  revived  in  the  house  and 
various  resolutions  were  considered,  with  the  result 
of  a  request  for  information  from  the  president, 
which  was  responded  to  by  the  message  of  March  8, 
1S22,  in  which  he  said  it  was  his  duty  to  invite  the 
attention  of  congress  to  a  very  important  subject, 
and  to  communicate  the  sentiments  of  the  executive 
on  it ;  that,  should  congress  entertain  other  senti- 
ments, then  there  might  be  such  co-operation  be- 
tween the  two  departments  of  the  government  as 
their  respective  rights  and  duties  might  require. 
And  after  stating  that  in  his  judgment  the  time  had 
come  to  recognize  the  republics,  he  said:  "Should 
congress  concur  in  the  view  herein  presented,  they 
will  doubtless  see  the  propriety  of  making  the  nec- 
essary appropriations  for  carrying  it  into  effect.' 
The  house  then  resolved  that  it  "concur  in  the 
opinion  expressed  by  the  president  in  his  message 
of  the  8th  of  March,  1822,  that  the  late  American 
provinces  of  Spain  which  have  declared  their  in- 
dependence and  are  in  the  enjoyment  of  it,  ought 
to  be  recognized  by  the  United  States  as  inde- 
pendent nations,"  and  directed  an  appropriation  "to 
enable  the  President  of  the  United  States  to  give 
due  effect  to  such  recognition."  The  Hale  memo- 
randum concludes  a  review  of  this  matter  with  a 
protest  against  the  conclusion  which  has  been  drawn 
that  President  Monroe,  after  all  the  discussion,  had 
admitted  the  power  of  recognition  in  congress,  but 
concedes  that  he  did  acknowledge  "the  importance 
of  consulting  the  legislative  branch  when  a  step 
was  about  to  be  taken  whose  expediency  might  bs 
doubted,  and  which  would  necessarily  result  in  a 
request  for  appropriations." 

In  June,  1S36,  in  reporting  a  resolution  declaring 
that  the  independence  of  Texas  ought  to  be  recog- 
nized, the  committee  on  foreign  affairs  of  the  senate 


EXECUTIVE  POWER 


1127 


EXECUTIVE  rowi.li 


made  a  report  in  which  It  was  said:  "The  recog- 
nition of  Texas  as  an  independent  power  may  be 
made  by  the  United  States  in  various  ways:  First, 
by  treaty;  second,  by  the  passage  of  a  law  regulat- 
ing commercial  intercourse  between  the  two  pow- 
ers; third,  by  sending  a  diplomatic  agent  to  Texas 
with  the  usual  credentials  ;  or,  lastly,  by  the  execu- 
tive receiving  and  accrediting  a  diplomatic  repre- 
sentative from  Texas,  which  would  be  a  recogni- 
tion as  far  as  thi  re  only  Is  competent  to 
make  it.  .  .  .  The  President  of  the  United  States, 
by  the  constitution,  has  the  charge  of  their  foreign 
intercourse.  Regularly  he  ought  to  take  the  initia- 
tive in  the  acknowledgment  of  the  independence  of 
any  new  power,  but  in  this  case  he  has  not  yet 
done  it,  for  reasons  which  he,  without  doubt,  deems 
■  t.  If  in  any  instance  the  president  should 
be  tardy,  he  may  be  quickened  in  the  exercise  of 
his  power  by  the  expression  of  the  opinion,  or  by 
other  acts,  of  one  or  both  branches  of  congress,  as 
was  done  in  relation  to  the  republics  formed  out 
of  Spanish  America."  Quoted  in  Senate  Report, 
No.   1160,   54th  Cong.   2d   Sess. 

President  Jackson,  in  his  message  of  Dec.  21,  1836, 
after  referring  to  the  resolution,  said  that  there  had 
never  been  any  deliberate  inquiry  as  to  where  be- 
longed the  power  of  recognizing  a  new  state, — a 
power  in  some  instances  equivalent  to  a  declara- 
tion of  war,  and  nowhere  expressly  given,  but  only 
as  it  is  implied  from  some  of  the  great  powers  giv- 
en to  congress  or  in  that  given  to  the  president  to 
make  treaties  and  receive  and  appoint  ministers. 
Then  he  continues:  "In  the  preamble  to  the  resolu- 
tion of  the  house  of  representatives  it  is  distinctly 
intimated  that  the  expediency  of  recognizing  the  in- 
dependence of  Texas  should  be  left  to  the  decision 
of  congress.  In  this  view,  on  the  ground  of  expe- 
diency, I  am  disposed  to  concur,  and  do  not,  there- 
fore, consider  it  necessary  to  express  any  opinion  as 
to  the  strict  constitutional  right  of  the  executive, 
either  apart  from  or  in  conjunction  with  the  senate, 
over  the  subject.  It  is  to  be  presumed  that  on  no 
future  occasion  will  a  dispute  arise,  as  none  has 
heretofore  occurred,  between  the  executive  and  the 
legislature  in  the  exercise  of  the  power  of  recogni- 
tion. It  will  always  be  considered  consistent  with 
the  spirit  of  the  constitution  and  most  safe  that  it 
should  be  exercised,  when  probably  leading  to  war, 
with  a  previous  understanding  with  that  body  by 
whom  war  can  alone  be  declared,  and  by  whom  all 
the  provisions  for  sustaining  its  perils  must  be 
furnished.  Its  submission  to  congress,  which  rep- 
resents in  one  of  its  branches  the  states  of  this 
Union,  and  in  the  other  the  people  of  the  United 
States,  where  there  may  be  reasonable  ground  to 
apprehend  so  grave  a  consequence,  would  certainly 
afford  the  fullest  satisfaction  to  our  own  country 
and  a  perfect  guaranty  to  all  other  nations  of  the 
justice  and  prudence  of  the  measures  which  might 
be   adopted." 

As  to  this  message  the  Hale  memorandum,  which, 
it  is  to  be  remembered,  is  an  argument  for  the 
absolute  and  unqualified  poivcr  of  the  executive 
(but  modified  only  by  what  might  be  termed  a  moral 
duty  to  consult  congress  in  extreme  cases)  remarks: 

"President  Jackson  plainly  was  of  the  opinion 
that,  in  a  doubtful  case,  when  international  com- 
plications might  be  involved,  the  president  should 
not  recognize  a  revolutionary  .government  without 
the  assent  of  congress.  His  language  is  so  care- 
fully guarded  that  no  Inference  can  be  made  with 
entire  confidence  as  to  the  proper  course  if  the  ex- 
ecutive were  strongly  of  the  opinion  that  facts 
Justifying  the  recognition  of  independence  did  not 
exist." 

With  respect  to  other  expressions  on  this  sub- 
ject from  the  executive  department  of  the 
ment,  Secretary  Seward  wrote  to  Minister  Dayton, 
April  7,  1864:  "The  question  of  recognition  of  for- 
eign revolutionary  or  reactionary  governments  is 
one  exclusively  for  the  executive,  and  cannot  be  de- 
termined internationally  by  congressional  action." 
This  had  reference  to  the  action  of  the  house  of  rep- 
resentatives, which  had  unanimously  adopted  a  res- 
olution protesting  against  the  establishment  of  an 
empire  in  Mexico  under  Maximilian.  The  senate 
did   not   act  on   it.     The   French  government   asked 


an  explanation,  and  the  secretary  of  state,  using  the 
expression  quoted,  said  that  a  vote  of  the  house  or 
the  senate  could  neither  coerce  the  executive  to 
modify  its  policy  nor  deprive  it  of  its  freedom  of 
action.     In  i  .jority 

affirmed   their   right   to   advise   on  ■,  of   for- 

eign policy  ;    but,  us  was  remarked  by  an  intelligent 
foreign   writer,  this  declaration   does  not  ap; 
have  had  any  Influi  the  admin- 

istration.    Chambrun,   1.  B.   lol. 

On   the  other  hand,  Secretary   Clayton,  writing  to 
Mr.    Mann,  a  special  agent  to  ■:   the  Hun- 

garian insurrection,  says:  "Should  the  new  gov- 
ernment prove  to  be,  in  your  i  ,  m  and 
stable,  the  president  will  cheerfully  recommend  to 
congress,  at  their  next  session,  the  recognition  of 
Hungary  ;  and  you  might  intimate,  if  you  should 
see  fit,  that  the  president  would  in  ti. 
gratified  to  receive  a  diplomatic  agent  from  Hun- 
gary in  the  United  States  by  or  before  the  next 
meeting  of  congress,  and  that  he  entertains  no 
doubt  whatever  that  in  case  her  new  government 
should  prove  to  be  firm  and  stable,  her  (ndi 
ence  would  be  speedily  recognized  by  that  enlight- 
ened body."  In  his  Digest  of  International  Law, 
from  which  the  foregoing  is  quoted,  Dr.  Wharton 
concludes  his  statement  of  precedents  on  this  sub- 
ject as  follows:  "As  to  this  It  Is  to  be  remarked 
that  while  Mr.  Webster,  who  shortly  afterwards,  on 
the  death  of  President  Taylor,  became  secretary 
of  state,  sustained  the  sending  of  Mr.  Maun  as  an 
agent  of  inquiry,  he  was  silent  as  to  this  paragraph, 
and  suggests,  at  the  utmost,  only  a  probable  con- 
gressional recognition  in  case  the  new  government 
should  prove  to  be  firm  and  stable.  In  making  con- 
gress the  arbiter,  President  Taylor  followed  the 
precedent  of  President  Jackson,  who,  on  March  3, 
1S37,  signed  a  resolution  of  congress  for  the  recog- 
nition of  the  independence  of  Texas.  The  recog- 
nition, however,  by  the  United  States,  of  the  Inde- 
pendence of  Belgium,  of  the  powers  who  threw  off 
Napoleon's  yoke,  and  of  the  South  American  states 
who  have  from  time  to  time  declared  themselves 
independent  of  prior  governments,  has  been  pri- 
marily by  the  executive,  and  such  also  has  been 
the  case  in  respect  to  the  recognition  of  the  suc- 
cessive  revolutionary  governments  of  France. 

The  conclusion  of  the  extended  discussion 
of  Cuban  affairs,  which  covered  the  sub- 
ject of  the  recognition  of  a  new  gorerament 
in  a  foreign  state  and  Intervention  in  its 
affairs,  was  reached  in  1898  when  President 
McKlnley  sent  a  special  message  dated  April 
11,  recommending  intervention  and  stating 
the  grounds  on  which  he  did  so.  A; 
April  20  congress  passed  a  joint  resolution 
declaring  that  the  people  of  Cuba  wei 
and  Independent,  and  demanding  that  the 
government  of  Spain  relinquish  its  authority 
and  government  in  the  island,  and  authorizing 
the  president  to  use  the  entire  land  and 
naval  forces  of  the  United  states  to  carry 
the  resolutions  into  effect.  There  was  a 
disclaimer  of  any  purpose  to  exercise  sover- 
eignty or  control  over  the  island  except  for 
its  pacification.  The  result  was  that  dip- 
lomatic relations  between  this  country  and 
Spain  were  immediately  broken  Off  and  war 
followed.     '">  Moore  Int.  L.  Dig.  See.  '.'"'.i. 

action  of  our  government  in  this  case 
does  not  Pear  upon  the  direct  question  as  to 
which  department  of  the  government  Is  di- 
rectly charged  with  the  recognition  of  new 
states,  except  that  it  shows  that  President 
McKiuley  acted  in  accordance  with  the 
views,  already  cited,  of  his  predecessors, 
Presidents  Monroe  and  Jackson,  in  consult- 


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1128 


EXECUTIVE  POWER 


ing  congress  and  securing  its  joint  action 
in  a  case  which  was  likely  to  result  in  war. 
Since  the  settlement  of  the  affairs  of  Cuba, 
it  is  believed  that  the  question  of  executive 
power  with  relation  to  new  or  insurrection- 
ary governments  has  not  been  raised  or  dis- 
cussed. 

In  1S99,  a  revolutionary  government  hav- 
ing been  established  in  Venezuela,  the  Unit- 
ed States  minister  was  authorized  by  the 
department  of  state  to  recognize  it,  and, 
when  he  had  done  so,  his  action  was  ap- 
proved; 1  Moore,  Int.  L.  Dig.  sec.  52.  In  the 
same  year  similar  action  was  taken  with 
respect  to  a  successful  insurrection  in  Bor 
livia ;  id.  sec.  53. 

Early  in  1911,  a  revolution  occurred  in 
Portugal  which  resulted  in  the  abdication 
of  the  king  aud  the  proclamation  of  a  re- 
public. On  the  6th  of  June,  1911,  the  Amer- 
ican minister  in  Lisbon  was  instructed,  as 
soon  as  the  constituent  assembly,  which  was 
to  meet  on  the  19th  of  June,  should  have  ex- 
pressed the  voice  of  the  people  and  settled 
upon  the  form  of  government  to  be  adopted 
by  Portugal,  to  inform  the  minister  of  for- 
eign affairs  of  its  official  recognition  by  the 
government  of  the  United  States.  The  min- 
ister was  to  do  this,  if  possible,  on  the  day 
on  which  the  constituent  assembly  took  def- 
inite and  final  action. 

On  the  following  day,  the  American  minis- 
ter was  explicitly  instructed  that  the  gov- 
ernment of  the  United  States  desired  to  rec- 
ognize the  republic  of  Portugal  as  soon  as  it 
should  be  officially  proclaimed  by  the  con- 
stituent assembly,  without  awaiting  the 
choice  of  a  president  or  the  adoption  of  a 
constitution.  On  June  19,  the  constituent 
assembly  met  and  definitely  proclaimed  the 
republic.  On  the  same  day  the  diplomatic 
representative  of  the  United  States  handed 
to  the  minister  of  foreign  affairs  a  note 
stating  that  the  government  of  the  Portu- 
guese republic  was  on  that  day  officially 
recognized  by  the  government  of  the  United 
States. 

It  may  be  remarked  that  the  republic  of 
Portugal  had  previously  been  recognized  by 
Switzerland. 

Late  in  the  same  year  there  occurred  a 
revolution  in  China  which  resulted  in  the 
establishment  by  the  insurgent  military  lead- 
ers in  the  various  Yangtze  provinces  and  in 
southern  China,  of  a  cabinet  form  of  govern- 
ment with  headquarters  at  Nanking,  and  an 
assembly  convoked  in  that  city,  which  on 
December  29,  1911,  elected  a  provisional  pres- 
ident of  the  republic  of  China,  who  was  in- 
augurated as  such  on  New  Year's  day.  On 
February  12,  1912,  the  throne  abdicated  in 
favor  of  a  republic  and  conferred  full  power 
to  organize  such  a  government  on  Yuan  Shih- 
kai,  who  three  days  later  was  elected  by  the 
Nanking  assembly  provisional  president. 
The  resignation  of  the  provisional  president 
and  his  cabinet  was  accepted  to  take  effect 


on  the  inauguration  of  Yuan,  which  occurred 
at  Peking  March  10,  1912.  The  provisional 
government  meanwhile  had  notified  the 
American  minister  that  the  Chinese  minister 
in  the  United  States  would  continue  in  the 
discharge  of  his  functions  as  "provisional 
diplomatic  agent."  On  March  10,  the  date 
of  the  inauguration,  a  provisional  constitu- 
tion, previously  approved  by  the  Peking  au- 
thorities, was  adopted  by  the  Nanking  as- 
sembly, under  which  it  was  provided  that 
within  ten  months  the  provisional  president 
should  convene  a  representative  national  as- 
sembly to  adopt  a  permanent  constitution 
and  elect  a  president. 

President  Taft  in  his  annual  message  of 
December,  1912,  announced  to  congress  the 
course  of  events  in  China  and  stated  that 
the  United  States  was,  according  to  prece- 
dent, maintaining  full  and  friendly  de  facto 
relations  with  the  provisional  government. 

On  April  6,  1913,  the  American  diplomatic 
representative  at  Peking  was  instructed  that 
upon  the  convening  of  the  national  assembly 
with  a  quorum,  organized  for  business  by 
the  election  of  officers,  he  should  communi- 
cate to  the  president  of  China  as  coming 
from  the  president  of  the  United  States  a 
message  recognizing  the  new  government 
and  welcoming  the  new  China  into  the  family 
of  nations.  This  message  of  the  president  of 
the  United  States  was  delivered  on  May  2, 
and  on  the  same  day  the  new  president, 
Yuan  Shih-kai,  sent  an  appreciative  message 
to  the  president  of  the  United  States  ac- 
knowledging his  greeting  and  thanking  him 
for  his  sentiments  of  amity  and  good  will. 

Meanwhile  none  of  the  European  govern- 
ments had  recognized  the  Chinese  republic. 

The  courts  have  frequently  had  occasion 
to  determine  whether  the  independence  of 
a  foreign  country  should  be  recognized  as 
existing  for  the  purpose  of  the  pending  case, 
but  not  to  pass  upon  the  question  of  power 
as  between  the  executive  and  legislative  de- 
partments. In  an  early  case  Marshall,  C.  J., 
said  that  before  a  nation 

"could  be  considered  independent  by  the  judiciary 
of  foreign  nations,  it  was  necessary  that  its  inde- 
pendence should  be  recognized  by  the  executive  au- 
thority of  those  nations.  That  as  our  executive  had 
never  recognized  the  independence  of  Buenos  Ayres, 
it  was  not  competent  to  the  court  to  pronounce  its 
independence."  U.  S.  v.  Hutchings,  2  Wh.  Cr.  Cas. 
(N.  Y.)  543,  Fed.  Cas.  No.  15,429. 

A  little  later,  on  certificate  of  division,  the 
supreme  court  had  before  it  the  direct  ques- 
tion of  the  rights  of  a  revolting  colony,  or 
portion  of  a  nation  which  has  declared  its 
independence.  The  case  was  the  trial  for 
piracy  of  one  of  the  revolutionary  subjects. 

Marshall,  C.  J.,  speaking  for  the  court, 
said: 

"Those  questions  which  respect  the  rights  of  a 
part  of  a  foreign  empire,  which  asserts  and  is  con- 
tending for  its  independence,  and  the  conduct  which 
must  be  observed  by  the  courts  of  the  Union  to- 
wards the  subjects  of  such  section  of  an  empire 
who  may  be  brought  before  the  tribunals  of  this 
country,    are    equally   delicate    and    difficult    .    .    • 


EXECUTIVE  POWER 


1129 


EXECUTIVE  POWER 


Such  questions  are  generally  rather  political  ttran 
legal  in  their  character.  They  belong  more  prop- 
erly to  those  who  can  declare  what  the  law  shall 
be ;  who  can  place  the  nation  in  such  a  position  with 
respect  to  foreign  powers  as  to  their  own  judgment 
shall  appear  wise ;  to  whom  are  entrusted  all  its 
foreign  relations,  than  to  that  tribunal  whose  power 
as  well  as  duty  is  confined  to  the  application  of 
the  rule  which  the  legislature  may  prescribe  for 
it."  The  certificate  of  opinion  was  "...  The 
court  is  further  of  opinion  that  when  a  civil  war 
rages  in  a  foreign  nation,  a  part  of  which  sep- 
arates itself  from  the  old  established  government, 
and  erects  itself  into  a  distinct  government,  the 
courts  of  the  Union  must  view  such  newly  con- 
stituted government  as  it  is  viewed  by  the  legis- 
lative and  executive  departments  of  the  govern- 
ment of  the  United  States."  U.  S.  v.  Palmer,  3 
Wheat.  (U.  S.)  CIO,  4  L.  Ed.  471. 

In  a  case  Involving  the  question  of  the 
right  of  citizens  of  the  United  States  to 
the  use  of  the  seal  fisheries  at  the  Falkland 
Islands  claimed  by  Buenos  Ayres,  Williams 
v.  Ins.  Co.,  3  Sumn.  270,  273,  Fed.  Cas.  No. 
17,738,  Mr.  Justice  Story  said. 

"It  is  very  clear  that  it  belongs  exclusively  to  the 
executive  department  of  our  government  to  rec- 
ognize from  time  to  time  any  new  governments 
which  may  arise  in  the  political  revolutions  of  the 
world  ;  and  until  such  new  governments  are  so  rec- 
ognized they  cannot  be  admitted  by  our  courts  of 
justice  to  have  or  to  exercise  the  common  rights 
and  prerogatives   of  sovereignty." 

He  adds  that  "this  doctrine  was  fully  rec- 
ognized by  the  supreme  court"  in  Gelston 
v.  Hoyt ;  which  was  one  of  those  cases  cited 
infra  in  which  the  court  had  referred  to 
the  recognition  of  independence,  by  the  "gov- 
ernment."  On  appeal  from  Judge  Story's 
decision  the  supreme  court  held  that  the 
action,  of  the  executive  department  of  the 
government,  on  the  question  to  whom  the 
sovereignty  of  the  islands  belonged  was  bind- 
ing and  conclusive  on  the  courts,  and  it  was 
enough  that  in  the  exercise  of  his  constitu- 
tional functions  the  president  had  decided 
that  question;  Williams  v.  Ins.  Co.,  13  Pet. 
(U.  -S.)  417,  420,  10  L.  Ed.  220.  In  several 
cases  the  court  has  said  that  the  question  of 
the  recognition  of  belligerency  or  independ- 
ence is  one  for  the  government  of  the  United 
Slates;  The  Divina  Pastora,  4  Wheat.  (U. 
S.)  52,  4  L.  Ed.  512;  The  Nueva  Anna,  6 
Wheat.  (U.  S.)  193,  5  L.  Ed.  23»;  Gelston  v. 
Hoyt,  3  Wneat.  (U.  S.)  324,  4  L.  Ed.  381; 
Rose  v.  Ilimely.  4  Cra.  (U.  S.)  241,  272,  2 
L.  Ed.  COS ;  and  again  congress  and  the 
president  are  referred  to  as  "those  depart- 
ments" having  the  control  of  such  mailers; 
l'.  S.  v.  Lynde,  11  Wall.  (U.  S.)  632,  638, 
20  I-  Ed.  'SSO.  On  a  bill  to  enforce  an  agree- 
ment the  validity  of  which  turned  on  the 
question  whether  at  its  date  Texas  was,  or 
was  not,  independent,  Taney,  C.  J.,  said  that 
"was  a  question  for  that  part  of  our  govern- 
ment which  is  charged .  with  our  foreign 
relations,"  and  it.  was  held  that  the  court 
could  not  inquire  whether  it  had  not  in 
fact  become  an  independent  sovereign  state 
before  its  recognition  as  such  by  the  treaty- 
making  power;  Kennett  v.  Chambers,  14 
How.  (U.  S.)  38,  51,  14  L.  Ed.  316. 


In  the  Prize  Cases,  2  Black  i 
L.   Ed.   4.",!),   much  later  than   anj 
above  cited    (relating  not  to  foreign  but  to 
Lc  relations,  and  therefore  not  strict- 
ly applicable),  this  language  is  u 

"As  in  the  case  of  an  insurrection,  the  President 
must,  in  the  absence  of  congressional  action,  deter- 
mine what  degree  of  force  the  crisis  demands,  and 
as  in  political  matters  the  courts  must  be  g<'. 
by  the  decisions  and  acts  of  the  political  depart- 
ment to  which  this  power  is  entrusted,  the  proc- 
lamation of  blockade  by  the  is  of  Itself 
conclusive  evidence  that  a  state  of  war  existed 
which  demanded  and  authorized  recourse  to  such  a 
measure." 

In  this  case,  the  court  terms  the  ext ■■ 
the  political  department  of  the  government, 
and  in  a  later  east.-  it  so  designates  cong 
U.  S.  v.  Yorba.  1  Wall.  (U.  S.j  412.  17  ! 
035.     More  recently  in  a  case  in  which  the 
president  was  authorized,  by  act  of  coi  - 
to  declare  that  a  guano  island  belonged   to 
the  United  States,  the  court  said  : 

"Who  is  the  sovereign,  de  jure  or  de  facto,  of  a 
territory  is  not  a  judicial,  but  a  political,  question, 
the  determination  of  which  by  the  legislative  and 
executive  departments  of  any  government  conclu- 
sively binds  the  judges  as  well  as  all  other  officers, 
citizens,  and  subjects  of  that  government ;"  Jones 
v.  U.   S.,  137  U.  S.  202,  11  Sup.  Ct.  80,  34  L.   Ed.  691. 

With  reference  to  the  status  of  the  rev- 
olutionary party  of  Chile,  the  circuit  court 
of  appeals  said  that  it  was  to  be  regarded  by 
the  courts  as  determined  by  the  executive 
department  of  the  United  States;  The  Itata. 
56  Fed.  505,  5  C.  C.  A.  gos;  affirming  l  .  S. 
v.  Trumbull,  48  Fed.  99. 

The  earliest  reference  to  this  subject  by 
a  text-writer  is  by  liawle,  who  says : 

"The  power  of  receiving  foreign  ambassadors  car- 
ries with  it,  among  other  things,  the  right  of  judg- 
ing in  the  case  of  a  revolution  in  a  foreign  country, 
whether  the  new  ruler  ought  to  be  recognized.  The 
ture,  indeed,  possesses  a  superior  power,  and 
may  declare  its  dissent  from  the  executive  recogni- 
tion or  refusal,  but  until  their  sense  Is  declared,  the 
act  of  the  executive  is  binding.  The  judicial  power 
can  take  no  notice  of  a  new  government,  until  one 
or  the  other  of  those  two  departments  has  acted  on 
it.  Circumstances  may  render  the  decision  of  great 
importance  to  the  interests  and  peace  of  the  coun- 
try. A  precipitate  acknowledgment  of  the  independ- 
ence of  part  of  a  foreign  nation,  separating  itself 
from  its  former  head,  may  provoke  the  resentment 
of  the  latter  ;  a  refusal  to  do  so  may  disgust  the 
former,  and  prevent  the  attainment  of  amity  and 
commerce  with  them  if  they  succeed.  The  principle 
on  which  the  separation  takes  place  must  also  be 
taken  into  consideration,  and  if  they  are  conform- 
able to  those  which  led  to  our  own  independence, 
and  appear  likely  to  be  preserved,  a  strong  impulse 
will  arise  in  favor  of  recognition.  .  .  .  The  power 
of  congress  on  this  subject  cannot  be  controlled ; 
they  may.  if  they  think  proper,  acknowledge  a  small 
and  helpless  community,  though  with  a  certainty  of 
drawing  war  upon  our  country  ;  but  greater  cir- 
cumspection is  required  from  the  president,  who,  not 
having  the  constitutional  power  to  declare  war, 
ought  ever  to  abstain  from  a  measure  likely  to 
produce   it."     Rawle,   Const.   195. 

A  Little  later  Story  wrote: 
"The  exercise  of  this  prerogative  of  acknowledg- 
ing new  nations  or  ministers  is,  therefore,  under 
such  circumstances,  an  executive  function  of  great 
delicacy,  which  requires  the  utmost  caution  and  de- 
liberation. ...  If  such  recognition  is  made,  it  is 
conclusive  upon  the  nation,  unless  indeed,  it  can  be 
1   by   an  act  of  congress  repudiating  it     If, 


EXECUTIVE  POWER 


1130 


EXECUTIVE  POWER 


on  the  other  hand,  such  recognition  has  been  re- 
fused by  the  executive,  it  is  said  that  congress  may, 
notwithstanding,  solemnly  acknowledge  the  sover- 
eignty of  the  nation  or  party  (citing  Rawle).  These, 
however,  are  propositions  which  have  hitherto  re- 
mained as  abstract  statements  under  the  constitu- 
tion, and  therefore  can  be  propounded,  not  as  abso- 
lutely true,  but  as  still  open  to  discussion  if  they 
.should  ever  arise  in  the  course  of  our  foreign  di- 
plomacy. The  constitution  has  expressly  invested 
the  executive  with  power  to  receive  ambassadors 
and  other  ministers.  It  has  not  expressly  invested 
congress  with  the  power  either  to  repudiate  or  ac- 
knowledge  them."     2   Sto.    Const.    §   1566. 

In  connection  with  this  treatment  of  the 
subject  is  to  be  considered  the  judicial  ut- 
terance of  Judge  Story,  before  cited  from 
Williams  v.  Ins.  Co.,  3  Sumn.  270,  Fed.  Cas. 
No.  17,738.  Pomeroy  is  also  cited  in  Senator 
Hale's  memorandum  as  an  authority  in  favor 
of  the  exclusive  executive  control,  which  he 
does  assert  strongly  with  reference  to  for- 
eign relations,  and  the  treaty-making  pow- 
er in  general,  but  he  does  not  discuss  the 
particular  question  under  consideration ; 
while  he  enforces  with  great  earnestness  the 
necessity  of  harmonious  action  of  congress 
and  the  executive,  and  of  their  co-operation 
in  giving  due  effect  to  the  powers  confided 
to  each ;  Pom.  Const.  Law  §  075. 

Dr.  Wharton,  in  his  Digest  of  Internation- 
al Law,  in  discussing  the  subject  of  the  rec- 
ognition of  various  revolutionary  govern- 
ments, entitles  section  vii.  of  chap,  iii.,  vol. 
1,  thus :  "Such  recognition  determinable  by 
executive,"  thus  implying  the  opinion  that 
the  right  rests  with  the  executive  alone.  The 
author  states  the  proposition  embodied  in 
his  caption  more  fully  thus : 

"In  political  matters  the  courts  follow  the  de- 
partment of  the  government  to  which  those  mat- 
ters may  be  committed,  and  will  not  recognize  the 
existence  of  a  new  government  until  it  has  been 
recognized  by  the  executive."  Most  of  the  cases, 
however,  which  are  cited  by  him  under  this  caption 
are  among  the  authorities  upon  the  proposition 
already  noted,  that  it  is  not  a  matter  for  the  judi- 
cial department  of  the  government,  but  that  the 
courts  will  not  take  cognizance  of  the  existence  of 
a  new  government  until  it  has  been  recognized  by 
the  political  department  of  the  government,  with- 
out discriminating  between  the  executive  and  legis- 
lative  branches    of   the  government. 

From  an  examination  of  all  the  decisions 
touching  this  question  by  the  judicial  de- 
partment, no  precise  principle  can  be  deduc- 
ed unless  it  be  that  the  references  to  it  rest 
upon  an  assumption  of  entire  harmony  of 
action  between  the  executive  and  legislative 
departments.  And  the  fact  that  the  direct 
issue  arising  from  the  claim  of  exclusive  con- 
trol by  one  of  those  two  departments  has  not 
heretofore  been  made,  will  readily  account 
for  the  absence  of  direct  judicial  authority 
or  authoritative  expression  of  opinion  by 
text-writers.  The  duties  and  powers  of  what 
the  supreme  court  frequently  terms  the  polit- 
ical departments  are  so  closely  interwoven 
that  it  is  unlikely  that  such  an  issue  will  be 
sharply  drawn.  Every  approach  to  it  hither- 
to has  resulted,  after  discussion,  in  the  rec- 
ognition by  congress  of  the  right  of  the  ex- 


ecutive to  full  control  of  foreign  relations 
and  to  the  initiative  in  the  practical  recogni- 
tion of  a  new  foreign  power,  and,  on  the 
other  hand,  by  a  prudent  disposition  on  the 
part  of  the  executive  not  to  act  in  a  doubt- 
ful case  or  one  likely  to  create  a  casus  belli 
without  ascertaining  the  disposition  of  con- 
gress. This  has  been  simply  the  application 
to  this  particular  subject  of  the  principle  of 
mutual  recognition  of  the  distribution  of 
powers,  and  at  the  same  time,  the  interde- 
pendence of  the  executive  and  congress 
which,  with  the  prudent  reserve  of  the  judi- 
ciary in  keeping  closely  within  the  limits  of 
its  own  sphere,  has  enabled  the  government 
to  avoid  the  dangers  of  mere  theoretical  con- 
struction alluded  to  by  Otis  in  the  quotation 
made  from  his  remarks  upon  the  subject. 
The  undoubted  constitutional  powers  of  both 
departments  bearing  upon  the  question  make 
harmony  of  action  as  necessary  in  dealing 
with  this  subject  as  with  most,  if  not  all,  of 
the  ordinary  details  of  the  government. 
While  the  president  may  undoubtedly  recog- 
nize a  foreign  government,  as  has  frequently 
been  done,  such  action,  if  it  involved  war, 
would  still  require  the  action  of  congress  to 
make  it  effective,  and  doubtless  the  prece- 
dents established  by  Presidents  Jackson  and 
Monroe,  neither  of  whom  was  indifferent 
to  the  respect  due  to  his  office,  will  always 
have  very  great,  if  not  controlling,  weight. 
Again,  the  question  recently  raised  of  the 
right  of  congress  by  independent  action  and 
against  the  views  of  the  president,  to  recog- 
nize the  independence  of  a  new  nation,  is 
more  likely  to  be  met  hereafter,  as  hereto- 
fore, in  the  spirit  of  co-operation  and  full 
recognition  of  the  executive  control  of  for- 
eign relations  than  to  be  asserted,  to  the 
extent  of  making  a  direct  issue,  as  it  would 
need  to  be  by  a  majority  of  two-thirds  of 
each  house. 

The  United  States  government  has  always 
held,  and,  on  occasion,  exercised,  the  right 
in  case  of  disturbances  of  the  peace,  either 
general  or  local  in  foreign  countries,  to  land 
forces  and  adopt  all  necessary  measures  to 
protect  the  life  and  property  of  our  citizens, 
whenever  menaced  by  lawless  acts,  which 
the  general  or  local  authority  is  unwilling 
or  impotent  to  prevent.  This  power  has  al- 
ways been  exercised  by  the  executive  depart- 
ment of  the  government.  The  power  was 
asserted  in  a  dispatch  of  Mr  Toucey,  secre1 
tary  of  the  navy,  to  Captain  Jarvis,  U.  S.  N., 
March  13,  1800,  with  reference  to  the  unset- 
tled state  of  affairs  in  Mexico ;  by  Mr.  Adee, 
acting  secretary  of  state  to  the  Korean  min- 
ister, July  8,  1S95,  with  reference  to  the  af- 
fairs in  Korea;  by  President  McKinley  in 
his  annual  message  of  Dec.  5,  1899,  with  ref- 
erence to  disturbances  in  China,  and  the 
power  was  also  asserted  with  reference  to 
disturbances  in  that  country,  by  Mr.  Hill, 
acting  secretary  of  state  to  the  secretary  of 
the  navy,  Sept.  11,  1900 ;  and  by  a  dispatch 


executive  power 


llol 


EXECUTIVE  POWER 


from  Mr.  Merry,  United  States  minister  to 
Nicaragua,  Feb.  -1,  1899;  with  reference  to 
disturbances  in  tbat  country  and  the  landing 
of  American  and  English  forces.  See  2 
Moore,  Int.  L.  Dig.  400    W2. 

Executive  officers,  including  the  president, 
are  required  to  execute  the  laws  as  enacted 
by  the  legislature  or  congress,  and  can  in 
no  case  nullify  them  by  refusing  to  execute 
them  so  long  as  their  unconstitutionality  or 
invalidity  has  not  been  Judicially  establish- 
ed, for,  until  this  is  done,  the  constitution- 
ality is  presumed,  and  in  the  judicial  power 
alone  resides  the  power  to  decide  as  to  the 
validity  of  a  statute ;  Pom.  Const.  L.  sees. 
148,  6G2-GGS;  Martin  v.  Hunter,  1  Wheat. 
(U.  S.)  304,  4  L.  Ed.  97;  Cohens  v.  Virginia, 
6  Wheat  (U.  S.)  2G4,  5  L.  Ed.  257;  Ahleman 
v.  Booth,  21  How.   (U.  S.i  506,  Hi  L.  Ed.  169. 

The  question  whether  an  executive  officer 
has,  under  any  circumstances,  the  right  to 
question  the  constitutionality  of  an  act  of 
congress,  and  to  make  this  decision  the  basis 
of  acting  upon, claims  to  be  passed  upon  by 
him,  was  the  subject  of  consideration  and 
extended  discussion  in  the  sugar  bounty  case 
lately  pending  before  the  comptroller  of  the 
treasury.  It  was  contended  on  the  one  hand 
that  every  law  must  be  considered  valid  un- 
til declared  otherwise  by  the  supreme  court, 
and  that  although  the  comptroller  is  an  in- 
dependent officer,  and  not  a  mere  subordi- 
nate of  the  secretary  of  the  treasury  or  the 
president,  such  an  exercise  of  jurisdiction 
would  be  a  dangerous  usurpation  by  an  ex- 
ecutive officer  of  judicial  authority,  which  is 
confided  by  the  constitution  exclusively  to 
the  courts.  On  the  other  hand,  it  was  urged 
that  the  constitution  is  the  supreme  law,  and 
that  an  executive  officer  is  responsible  for  a 
wrongful  act  under  an  unconstitutional  stat- 
ute. It  was  replied  that  his  responsibility 
is  political.  The  claim  was  disallowed  by 
the  comptroller  upon  the  ground  that  the  act 
was  unconstitutional  and  the  case  sent  to 
the  court  of  claims  under  the  authority  of 
U.  S.  Rev.  Stat.  §  1065.  The  act  in  question 
had  been  held  unconstitutional,  but  not  by 
the  court  of  last  resort;  U.  S.  v.  Carlisle,  5 
App.  I).  C.  138.  Subsequently  the  act  was 
held  to  be  constitutional  by  the  supreme 
court,  but  the  question  of  the  power  of  the 
comptroller  was  not  determined;  U.  S.  v. 
Realty  Co.,  163  U.  S.  127.  lb'  Sup.  Ct.  1120, 
41  L.  Ed.  215.  This  division  of  the  comp- 
troller and  the  questions  involved  have  been 
elaborately  discussed  by  Mr.  Black,  the  writ- 
er on  constitutional  law.  who,  after  an  ex- 
amination of  the  authorities,  reaches  the  con- 
clusion that  the  power  of  an  executive  offi- 
cer to  judge  of  the  constitutionality  of  a 
statute  (in  advance  of  a  determination  by 
the  courts)  is  confined  to  cases  in  which  it 
is  necessary  for  the  regulation  of  his  own 
conduct,  and  that  where  the  rights  of  others 
are  involved  he  must  enforce  the  law;  29 
Am.  L.  Rev.  S01.    See  also  11  Op.  Atty.  Gen. 


214;  Poindexter  ihow,  114 

.".   Sup.  Ct. 

Kaufman,  96   I  . 

v.  Bank.  104  U.  S.  728,  26  L.  l.d.  908;  Leisy 

v.  Hardin.   135   I  10  Sup.  I 

L.   Ed.   128;   Huntington  v.  Worthen,   12 

S.   102,  7  Sup.  I 

The  same  principle  is  b pplied  in  the 
governments,     [nan  .  Louisiana 

it    was    held    that    the    <■ 

the    state   government   have    do   authority   to 
decline    the    performance    of    pur< 
terial  duties  Imposed  upon  them  by  a 

ute,  on  the  ground  that  it  is  an istitutionaL 

An  executive  officer  cannot  nullify  a  law  by 
neglecting  or  refusing  to  act  under  it;  State 
v.  Heard,  17  La  Ann.  1679,  is  South.  746, 
47  L.  R.  A.  512. 

The  so-called  war  powers  of  the  executive, 
so  much  discussed  during  tin'  civil  War,  do 
not  now  present  a  practical  subject  fur  dis- 
cussion, and  may  be  passed,  with  this  quo- 
tation from  a  judicious  writer  on  the  sub- 
ject : 

"During  our  Civil  War,  many  powers  were  claim- 
ed and  exercised  by  the  president  under  a  stringen- 
cy of  circumstances  tor  which  no  provision  had  been 
made  in  the  constitution.  Secession  being  the  out- 
growth ot  the  doctrine  of  states  governed  by  com- 
pact and  not  by  law,  it  became  necessary,  in  the 
complication  growing  out  of  the  war,  whether  In  the 
form  of  military  occupancy  and  blockade,  legislative- 
reconstruction,  or  judicial  protection  of  persons  and 
property  in  the  seceded  states,  to  find  by  impli- 
cation, in  the  executive  department,  certain  war 
not  hitherto  contemplated  and  never  before 
invoked.  W'hile  the  general  results  of  their  exercise 
doubtless  contributed  to  the  restoration  of  the  Un- 
ion, and  the  re-establishment  of  the  government  of 
the  United  States  over  all  its  territory,  these  powers 
were  so  far  anomalous  in  their  assumption  as  to 
afford  no  justifiable  precedents  for  the  government 
of  the  executive,  in  the  ordinary  circumstances  of 
our  federal  administration.  A  formal  discussion  of 
their  scope  and  application  has  accordingly  been 
omitted,  because  they  present  exceptions  in  the  body 
of  our  constitutional  legislation  that  are  never 
again  likely  to  be  repeated."  Ordronaux,  Const. 
Leg.  109.  See  Whiting,  War  Powers  under  the  Con- 
stitution ;  Campbell,  Collection  of  Pampli 
Habeas   Corpus,   Martial   Law,   etc. 

The  president  is  not  responsible  to  the 
courts,  civil  or  criminal;  Duraml  v.  Hollins, 
4  Blatchf.  451,  1'ed.  Cas.  No.  4,186;  nor  are 
his  acts  reviewable  by»them  to  the  extent  of 
bringing  them  into  conflict  with  him;  Missis- 
sippi v.  Johnson,  4  Wall.  (I*.  S.  i  47o. 
Ed.  437;  except  that  they  may  declare 
an  order  or  regulation  in  ex<v~s  of  his  pow- 
ers; D.  S.  v.  The  Franklin,  1  Call.  137, 
('as.  No.  10,585;  0  Am.  Law  Reg.  •"■  - 1  :  hut 
with  respect  to  all  of  his  political  functions 
growing  out  <>f  the  foreign  relations,  the  con- 
trol of  military  officers,  and  his  n  I 
with  congress,  it  is  settled  that  the  courts 
have  no  control  whatever;  Cherokee  Nation 
v.  Georgia,  5  Pet  (U.  S.)  E  20,  8  L.  Ed.  2:,; 
Luther  v.  Borden,  7  How.  (U.  S.)  1.  12  L. 
Ed.  581  ;  Mississippi  v.  Johnson.  4  Wall.  (U. 
S.)  47.".  18  I..  F.d.  437;  1  Goodn.  Comp.  Adm. 
I..  34,  7:'.;  Pom.  Const.  L.  §  033.  See  also  1 
Yes.  407;  1  Yes.  Jr.  J75 ;  2  id.  50. 


EXECUTIVE  POWER 


1132 


EXECUTIVE  POWER 


All  the  acts  of  the  president  by  which  his 
political  powers  are  exercised  are  considered 
equally  political,  and  are  only  brought  with- 
in the  scope  of  judicial  examination  where 
the  act  of  some  inferior  ministerial  officer, 
who  is  the  direct  instrument  for  exercising 
the  executive  function,  is  submitted  to  the 
scrutiny  of  the  courts.  This  usually  occurs 
where  the  constitutionality  of  a  law  is  ques- 
tioned by  the  judicial  examination  of  the 
act  of  some  officer  who  has  attempted  to 
carry  the  law  into  execution.  In  such  a 
case  there  is  not  a  direct  judicial  examina- 
tion of  the  president's  acts,  or  those  of  his 
subordinates,  but  merely  the  determination 
of  the  question  whether  there  is  a  valid  law ; 
id.  419;  Marbury  v.  Madison,  1  Cranch  (U. 
S.)  137,  2  L.  Ed.  60;  Mississippi  v.  John- 
son, 4  Wall.  (U.  S.)  475,  18  L.  Ed.  437;  Pom. 
Const.  Law  §  633. 

So,  as  a  necessary  incident  of  the  power 
to  perform  his  executive  duties,  must  be  in- 
cluded freedom  from  any  obstruction  or  im- 
pediments;  accordingly,  the  president  can- 
not be  liable  to  arrest,  imprisonment,  or  de- 
tention, while  he  is  in  the  discharge  of  the 
duties  of  his  office;  and  for  this  purpose  his 
person  must  be  deemed,  in  civil  cases  at 
least,  to  possess  an  official  inviolability ;  2 
/  Sto.  Const.  §  1569. 

Whether  in  any  case  a  court  may  issue  a 
mandamus  to  the.  governor  of  a  state  is  a 
question  on  which  the  decisions  are  not  uni- 
form. In  some  states  it  is  held  that,  al- 
though conceding  the  independence  of  the 
executive  from  the  control  of  the  judiciary 
with  respect  to  political  duties  and  powers, 
as  to  ministerial  duties  imposed  upon  the 
executive,  which  might  have  been  committed 
to  another  officer,  the  writ  may  be  resorted 
to;  Cotten  v.  Ellis,  52  N.  C.  545;  State  v. 
Chase,  5  Ohio  St.  528 ;  Harpending  v.  Haight, 
39  Cal.  189,  2  Am.  Rep.  432;  Groome  v. 
Gwinn,  43  Md.  572;  Greenwood  Cemetery 
Land  Co.  v.  Routt,  17  Colo.  156,  28  Pac.  1125, 
15  L.  R.  A.  369,  31  Am.  St.  Rep.  284;  Ten- 
nessee &  C.  R.  Co.  v.  Moore,  36  Ala.  371; 
State  v.  Thayer,  31  Neb.  82,  47  N.  W.  704; 
Chumasero  v.  Potts,  2  Mont.  242 ;  Martin  v. 
Ingham,  38  Kan.  641,  17  Pac.  162.  But  the 
weight  of  authority  would  seem  to  be  in 
favor  of  the  contrary  opinion;  In  re  Den- 
nett, 32  Me.  508,  54  Am.  Dec.  602;  Mauran 
v.  Smith,  8  R.  I.  192,  5  Am.  Rep.  564;  People 
v.  Cullurn,  100  111.  472;  State  v.  Stone,  120 
Mo.  428,  25  S.  W.  376,  23  L.  R.  A.  194,  41  Am. 
St.  Rep.  705;  Hovey  v.  State,  127  Ind.  588, 
27  N.  E.  175,  11  L.  R.  A.  763,  22  Am.  St.  Rep. 
663;  State  v.  Governor,  25  N.  J.  L.  331; 
State  v.  Towns,  8  Ga.  360;  State  v.  Stone, 
120  Mo.  428,  25  S.  W.  376,  23  L.  R.  A.  194, 
41  Am.  St.  Rep.  705;  Hawkins  v.  Governor, 
1  Ark.  571,  33  Am.  Dec.  346 ;  People  v.  Gov- 
ernor, 29  Mich.  320,  18  Am.  Rep.  89  ;  State  v. 
Drew,  17  Fla.  67 ;  State  v.  Warmoth,  22  La. 
Ann.  1,  2  Am.  Rep.  712;  Rice  v.  Austin,  19 
Minn.  103  (Gil.  74),  18  Am.  Rep.  330;    Vicks- 


burg  &  M.  R.  Co.  v.  Lowry,  01  Miss.  102,  48 
Am.  Rep.  76. 

In  some  cases  it  is  held  that  the  courts 
have  no  power,  "in  the  absence  of  express 
constitutional  provisions,  to  control  the  ac- 
tion of  the  governor,  or  to  compel  him  by 
mandamus  to  perform  any  duty  either  polit- 
ical or  municipal,  and  whether  commanded 
by  the  constitution  or  by  law" ;  State  v. 
Stone,  120  Mo.  428,  25  S.  W.  370,  23  L.  R.  A. 
194,  41  Am.  St.  Rep.  705;  State  v.  Huston, 
27  Okl.  606,  113  Pac.  190,  34  L.  R.  A.  (N. 
S.)  380;  but  the  mayor  of  a  city  is  not  such 
an  executive  officer  as  is  exempt  from  judi- 
cial control;  State  v.  Noonan,  59  Mo.  App. 
524. 

As  to  other  executive  officers,  such  as 
secretary  of  state,  treasurer,  auditor,  and 
the  like,  though  some  conflict  exists,  the 
better-considered  doctrine,  and  that  sup- 
ported by  the  great  weight  of  authority,  is 
properly  said  to  be  that  courts  will  apply 
the  general  principle  of  law  and  issue  the 
writ  in  the  case  of  purely  ministerial  acts; 
High,  Ext,  Leg.  Rem.  §§  124a-126,  where 
the  cases  are  collected. 

The  same  principle  is  applied  to  deter- 
mine how  far  the  courts  will  interfere  in 
like  manner  with  the  heads  of  executive 
departments,  or  bureaus  thereof,  of  the  fed- 
eral government  If  the  act  is  purely  min- 
isterial the  writ  will  issue ;  Kendall  v.  U.  S., 
12  Pet.  (U.  S.)  524,  9  L.  Ed.  1181;  Ballinger 
v.  U.  S.,  216  U.  S.  240,  30  Sup.  Ct  338,  54 
L.  Ed.  464;    Garfield  v.  U.  S.,  211  U.  S.  249, 

29  Sup.  Ct.  62,  53  L.  Ed.  168;  U.  S.  v.  Bay- 
ard, 16  D.  C.  428;  but  it  must  be  an  act  not 
growing  out  of  the  inherent  powers  of  the 
officer;  U.  S.  v.  Guthrie,  17  How.  (U.  S.) 
284,  15  L.  Ed.  102 ;  and  in  no  case  where  the 
act  involves  the  exercise  of  discretion  will 
the  court  interfere ;  Holloway  v.  Whiteley,  4 
Wall.  (U.  S.)  522,  18  L.  Ed.  335;  Secretary 
v.  McGarrahan,  9  Wall.  (U.  S.)  298,  19  L. 
Ed.  579;  Carrick  v.  Lamar,  116  U.  S.  423,  6 
Sup.  Ct  424,  29  L.  Ed.  677;  U.  S.  v.  Black, 
12S  U.  S.  40,  9  Sup.  Ct.  12,  32  L.  Ed.  354 ;  U. 
S.  v.  Blaine,  139  U.  S.  306,  11  Sup.  Ct.  607, 
35  L.  Ed.  183;  U.  S.  v.  Lamont,  155  U.  S. 
303,  15  Sup.  Ct.  97,  39  L.  Ed.  160;  and  find- 
ings of  fact  by  an  executive  officer  are  con- 
clusive in  the  absence  of  palpable  error; 
Central  Trust  Co.  v.  Trust  Co.,  216  U.  S.  251, 

30  Sup.  Ct  341,  54  L.  Ed.  469,  17  Ann.  Cas. 
1066. 

See,  generally,  Desty;  Rawle;  Story; 
Miller;  Black,  Constitution;  Sergeant;  Sedg- 
wick, Const.  Law;  Thayer,  Cas.  Const.  L. ; 
Cooley,  Const.  Lim. ;  Elliot's  Debates ;  Elmes, 
Executive  Departments;  Kent,  Com.  Lect 
xni.;  Stubbs,  Const.  Hist.  Eng. ;  Todd,  Pari. 
Gov.  in  Eng. ;  Lowell,  Gov't  of  England ;  Von 
Hoist,  Hist.  U.  S. ;  Whiting,  War  Powers; 
Ordronaux,  Const  Leg.  99-110;  Goodnow, 
Comp.  Adm.  Law;  Bryce,  Am.  Com.;  Cham- 
brun,  Executive  Power  in  the  U.  S. ;  Fisher, 
Evolution   of   the  Const;     Stevens,    Sources 


EXECUTIVE  POWER 


1133 


EXECUTOR  DE  SON  TORT 


Const.  U.  S. ;  Wilson,  Legislative  Govern- 
ment ;  Farrand  ;  Willoughby  ;  Watson ;  Dicey, 
Constitution;  Judicial  Power;  Legjsiativb 
Power;  President  of  the  UNITED  States. 

EXECUTOR  DE  SON  TORT.   One  who 

attempts  to  act  as  executor  without  lawful 
authority. 

A  person  who,  without  any  authority,  in- 
termeddles with  the  estate  of  a  decedent  and 
does  such  acts  as  properly  belong  to  the 
office  of  executor  or  administrator,  thereby 
becoming  a  sort  of  qu-asi  executor,  though 
only  for  the  purpose  of  being  sued  or  made 
liable  for  the  assets  with  which  he  has  inter- 
meddled. Grace  v.  Seibert,  235  111.  100,  85 
N.  E.  30S,  22  L.  R.  A.  (N.  S.)  301;  and  such 
executor,  having  assumed  a  representative 
character,  cannot  deny  it,  and  therefore  suf- 
fers all  the  liabilities  of  an  executor  with- 
out acquiring  the  rights  or  privileges  of  such 
office ;   id. 

If  a  stranger  takes  upon  him  to  act  as  ex- 
ecutor without  any  just  authority  (as,  by 
intermeddling  with  the  goods  of  the  de- 
ceased, and  many  other  transactions),  he  is 
called  in  law  an  executor  of  his  own  wrong, 
de  son  tort;  2  Bla.  Com.  507;  Bacon  v.  Par- 
ker, 12  Conn.  213;  Wilbourn  v.  Wilbourn.  48 
Miss.  38;  14  E.  L.  &  Eq.  510;  Johnston  v. 
Duncan,  3  Litt.  (Ky.)  1G3,  14  Am.  Dec.  54; 
White  v.  Cooper,  3  Pa.  130;  Brown  v.  Wal- 
ter, 58  Ala.  310;  Barron  v.  Burney,  38  Ga. 
2U4.  If  a  man  kill  the  cattle  of  the  testator, 
or  take  his  goods  to  satisfy  a  debt,  or  collect 
money  due  him,  or  pay  out  such  money,  or 
carry  on  his  business,  or  take  possession  of 
his  house,  etc.,  he  becomes  an  executor  de 
son  tort.  Where  a  person  with  whom  a  will 
had  been  left  filed  it,  but  took  out  no  letters 
with  the  will  annexed,  or  any  other  legal  au- 
thority to  administer  on  the  estate,  he  be- 
came an  executor  de  son  tort;  Morrow  v. 
Cloud,  77  Ga.  114. 

But  a  stranger  may  perform  many  acts  in 
relation  to  a  testator's  estate  without  be- 
coming liable  as  executor  de  son  tort.  Such 
are  locking  up  his  goods  for  preservation, 
burying  the  deceased  in  a  manner  suitable  to 
his  fortune,  paying  for  the  funeral  expenses 
and  those  of  the  last  sickness,  making  an 
inventory  of  his  property  to  prevent  loss  or 
fraud  solely,  feeding  his  cattle,  milking  his 
cows,  repairing  his  houses,  etc.  Such  acts 
are  held  to  be  offices  of  kindness  and  chari- 
ty; Magner  v.  Ryan,  10  Mo.  10G;  Emery  v. 
Berry,  28  N.  H.  473,  61  Am.  Dec.  622.  Nor 
does  paying  the  debts  of  the  deceased  with 
one's  own  money  make  one  an  executor  de 
son  tort;  Carter  v.  Bobbins,  8  Rich.  (S.  G.) 
20;  Bogue  v.  Watrous,  59  Conn.  217.  22  Atl. 
31.  Nor  does  one  become  executor  (/■■  son 
tort  by  obtaining  payment  of  a  debt  from  an 
executor  de  son  tort;  65  L.  T.  N.  S.  709.  The 
fact  that  a  widow  has  taken  possession  of 
community  property  is  not  sufficient  to  au- 
thorize  suit  against  her  on   a  note  of  her 


deceased  husband;    Vela  v.  Guerra.  7" 
595,  12  S.  W.  1127.    As  to  what  acts  will 
der  a  person  so  liable,  see  Godolphin,  Orph. 
Leg.  91 ;    1   Wn  Abr. 

561;    Bull.  X.  1'.   is;    Cum.  Dig.  Administra- 
tion (C  3);    Rattoon  v.  Overacker,  S  .1 
(N.  Y.)   120;    In  re  Huffs  Estate,  15  S.  &  EL 
(Pa.)     30:     White    v.    Mann.    2-;    Me    ::<;i  ; 
Chandler  v.  Davidson,  >;  Blackf.    (Ind.) 

An  executor  de  son  tort  is  Liable  only  f<>r 
such   assets  as   come  into   his    bands,    8 
not  liable  for  not  reducing  a 
sion ;    Kinard's  Adm'r  v.  Young,  2   Rich.   Eq. 
i  s.  G  i  2  17;    Roumfort  v.  McAlarney,  i 
193.     And  it  has  been  held  that  he  is  only 
liable  to  the  rightful  administrator;   Mulr  v. 
Trustees  of  Orphan   House.   3   Barb.  <'h.    (X. 
r.)    !77:   Brown  v.  Walter,  58  Ala.  .".1".     B  I 
see  Hansford   v.   Elliott.  0   Leigh    (Va. 
Swift    v.    Martin,    10    Mo.    A].]).    488;     which 
imply  that  he   is  also   Liable   to  the   heir  at 
law.      He  cannot   be   sued   except   for  fraud, 
and    he   must    be    sued    as    executor;  •  Buck* 
minster  v.  Ingham,  Brayt  (Vt.)   n<'»:   Fran- 
cis  v.    Welch.   .".3   N.    C.   215;     Nass    v.    Van- 
SWearingen,   10  S.   &  B.    (Pa.)    144;    Brown's 
Ex'rs    v.    Durbin'a    Adm'r,    5    .7.    J.    Marsh. 
(Ky.)  170.     But  in  general  he  is  liable  to  all 
the  trouble  of  an  executorship,  with  none  of 
its  profits.     And  the  law  on  this  head 
to    have   been    borrowed    from    the   civil-law 
doctrine  of  pro  hcerede  gestio.     See  lb 
•  ins.  Antiq.  Syntagma,  lib.  2,  tit.  17,  §   16,  p. 
468. 

An  executor  de  son  tort  Is  an  executor 
only  for  the  purpose  of  being  sued,  and  not 
for  the  purpose  of  suing;  Francis  v.  Welch, 
33  N.  C.  2in.  lie  is  sued  as  if  rightful  e: 
tor.  But  if  he  flefi  ods  as  such  he  becomes 
thereby  also  an  executor  de  son  tort;  Lawes, 
PI.  i0O,  note:  Davis  v.  Connelly's  Ex'rs.  1 
B.  Monr.  (Ky.)  13G;  Gregory's  Ex'rs  v. 
Forrester,  1  McCord.  Ch.    (S.  0.)    318;    Hill 

Henderson,  13  Smedes  &  M.  (Id 
Norfolk's  Ex'r  v.  Cantt,  2  II.  &  .7.  (Md.)  435. 
When  an  executor  de  son  tort  takes  out  let- 
ters of  administration,  his  acts  are  Legalized, 
and  are  to  be  viewed  in  the  same  light  as  if 
he  had  been  rightful  administrator  when  the 
goods  came  into  bis  hands:  Magner  v.  Ryan, 
19  Mo.  196;  Shillaber  v.  Wyman.  1.".  Mas<. 
325;  Rattoon  v.  Overacker,  s  Johns.  (N.  1.) 
126.  Bui  see.  COntra,  Clements  v.  Swain.  2 
N.  II.  475.  A  voluntary  sale  by  an  I 
tor  dc  son  tort  Confers  only  the  same  title 
on  the  purchaser  that  he  himself  had:  6 
i:\cli.  164;  20  B.  I-  &  Eg,  146;  tar]  "liter  v. 
Going,  20  Ala.  587;  Meigan  v.  McDonough, 
10  Watts  (  Pa.)  287. 

It  is  held  that  in  regard  to  land  no  man 
can  be  an  executor  dc  ton  tort;  Green  v. 
Dewit,  l  Rdot  (Conn.)  183;  Nass  v.  Van- 
swearingen,  7  s.  &  lb  (Pa.)  192;  id..  10  S. 
&  R.  i  l'a.  i  141.  In  Arkansas  it  is  said  thai 
there  is  no  such  thing  as  a  technical  exi 
dc  son  tort:  Barasien  v.  Odum,  17  Ark.  122: 
Bust   v.   Wither ingtou,   id.    129 ;     and   so   in 


EXECUTOR  DE  SON  TORT  1134     EXECUTORS  AND  ADMINISTRATORS 


Missouri;  Rozelle  v.  Harmon,  103  Mo.  339, 
15  S.  W.  432,  12  L.  R.  A.  1ST.  See,  on  this 
subject,  Smith  v.  Porter,  35  Me.  287 ;  Leach 
v.  Pillsbury,  15  N.  H.  137 ;  Grave's  Adm'r  v. 
Poage,  17  Mo.  91 ;  Hardy  v.  Thomas,  23  Miss. 
544,  57  Am.  Dec.  152;  Josey  v.  Rogers,  13 
Ga.  478;  Woolfork's  Adm'r  v.  Sullivan,  23 
Ala.  548,  58  Am.  Dec.  305 ;  Simonton  v.  Mc- 
Lane's  Adm'r,  25  Ala.  353;  Morrison  v. 
Smith.  44  N.  C.  399;  Walworth  v.  Ballard, 
12  La'.  Ann.  245 ;  Lee  v.  Wright,  1  Rawle 
(Pa.)  149;    Schoul.  Ex'rs  &  Adm'rs  §  184. 

EXECUTORS  AND  ADMINISTRATORS. 
The  person  or  persons  to  whom  is  committed 
the  administration  of  the  estates  of  dece- 
dents, the  first  being  that  of  a  person  named 
in  a  will  to  execute  its  provisions,  the  latter 
that  of  the  officer  designated  under  the  law 
to  administer  the  estate  of  one  who  has  died 
intestate. 

An  executor  is  one  to  whom  another  man 
commits  by  his  last  will  the  execution  of 
that  will,  and  testament.  2  Bla.  Com.  503. 
A  person  to  whom  a  testator  by  his  will 
commits  the  execution,  or  putting  in  force, 
of  that  instrument  and  its  codicils.  Fonbl. 
Rights  and  Wrongs  307.  See  Letters  Tes- 
tamentary ;    H^ERES. 

An  administrator  is  a  person  authorized  to 
manage  and  distribute  the  estate  of  an  in- 
testate, or  of  a  testator  who  has  no  executor. 
In  South  African  law  the  term  is  used  as 
equivalent  to  trustee. 

An  administrator  is  merely  the  agent  or 
trustee  of  the  estate  of  the  decedent,  acting 
under  the  immediate  direction  of  the  law 
prescribing  his  duties,  regulating  his  conduct 
and  limiting  his  powers;  Collamore  v.  Wil- 
der, 19  Kan.  67. 

Administration.  The  management  of  the 
estate  of  an  intestate,  or  of  a  testator  who 
has  no  executor.  2  Bla.  Com.  494;  1  Wil- 
liams, Ex.  401.  The  term  is  applied  broadly 
to  denote  the  management  of  an  estate  by 
an  executor,  and  also  the  management  of 
estates  of  minors,  lunatics,  etc.,  in  those 
cases  where  trustees  have  been  appointed 
by  authority  of  law  to  take  charge  of  such 
estates  in  place  of  the  legal  owners. 

No  administration  is  necessary  where 
there  are  no  creditors  and  the  heirs  divide 
the  assets  in  kind  or  otherwise  by  mutual 
agreement;  McCracken  v.  McCaslin,  50  Mo. 
App.  85;  Cadmus  v.  Jackson,  52  Pa.  307; 
Brown  v.  Baxter,  77  Kan.  97,  94  Pac.  155, 
574;  or  where  the  property  of  the  intes- 
tate is  exempt;  Rivera  v.  R.  Co.  (Tex.)  149 
S.  W.  223;  or  where  the  widow  is  sole  lega- 
tee and  all  debts  and  expenses  are  paid ; 
Block  v.  Butt,  41  Ind.  App.  487,  84  N.  E.  357 ; 
or  where  persons  in  interest  settle  tbeir 
rights  outside  of  the  probate  court ;  Prichard 
v.  Mulhall,  140  la.  1,  118  N.  W.  43;  and.  in 
some  states,  such  settlement,  without  admin- 
istration, is  authorized  by  statute ;  Rogan  v. 
Arnold,  233  111.  19,  84  N.  E.  58. 


The  controlling  place  of  administration  is 
the  domicile  of  the  testator;  Higgins  v. 
Eaton,  188  Fed.  938. 

The  right  of  administration  is  a  valuable 
one  and  not  to  be  taken  away,  except  as  pro- 
vided by  statute;  Williams  v.  Williams,  24 
App.  D.  C.  214. 

Originally  in  England  the  crown  claimed 
the  right  of  administering  the  personal  prop- 
erty of  intestates  and  exercised  it  by  its 
ministers,  or  granted  it  as  a  franchise  to 
lords  of  manors  or  others  and  afterwards  to 
prelates,  who  greatly  abused  the  trust,  un- 
til, under  the  Statute  of  Westminster  II,  tbe 
ordinary  was  bound  to  pay  the  debts  of  the 
deceased  so  far  as  his  goods  would  extend, 
but  still  the  ecclesiastical  persons  who  were 
entrusted  with  the  duty,  appropriated  large 
portions  of  them  upon  the  pretext  of  pious 
uses,  until  they  were  required  by  Stat.  31 
Edw.  III.  c.  11,  §  1,  to  grant  administration 
to  "the  next  of  kin  and  most  lawful  friends 
of  the  dead  person  intestate,"  who  were  held 
accountable  in  the  common-law  court  as  ex- 
ecutors were.  The  administration  of  per- 
sonal estates  then  became  assimilated  to 
carrying  out  the  provisions  of  wills,  and  the 
function  of  the  ecclesiastical  courts  was 
merely  the  grant  of  letters  and  the  super- 
vision of  their  execution.  Next,  under  21 
Hen.  VIII.,  the  ordinary  could  appoint  the 
widow  or  next  of  kin,  or  both,  at  his  discre- 
tion. The  jurisdiction  in  England  was  taken 
away  from  the  ecclesiastical  court  by  Stat. 
20  &  21  Vic.  c.  77,  and  vested  in  a  judge  of 
probate.  The  court  of  probate  is  now  part 
of  the  Probate.  Divorce  and  Admiralty  Divi- 
sion of  the  High  Court  of  Justice. 

In  the  United  States,  what  is  known  as 
probate  jurisdiction  is  exercised  generally 
by  courts  known  as  probate  courts  held  by 
surrogates,  judges  of  probate,  registers  of 
wills,  etc. 

There  are  various  kinds  of  administration  : 
Ad  colligendum.  That  which  is  granted 
for  collecting  and  preserving  goods  about 
to  perish  (bona  peritura).  The  only  power 
over  these  goods  is  under  the  form  pre- 
scribed by  statute. 

Ancillary.  That  which  is  subordinate  to 
the  principal  administration  taken  out  in 
another  state  or  country  where  there  are 
assets;  Appeal  of'  Barry,  88  Pa.  131; 
Stevens  v.  Gaylord,  11  Mass.  256;  Rosenthal 
v.  Renick,  44  111.  202;  Trimble  v.  Dzieduz- 
yiki,  57  How.  Pr.  (N.  Y.)  208.  In  the  ab- 
sence of  a  statute  allowing  it  (as  in  some 
states)  an  administrator  in  one  state  cannot 
sue  as  such  in  another,  unless  ancillary  let- 
ters are  taken  out;  Noonan  v.  Bradley,  9 
Wall.  (U.  S.)  394,  19  L.  Ed.  757;  and  this 
may  be  done  by  amendment  after  the  bill  is 
filed;  Black  v.  Henry  G.  Allen  Co.,  42  Fed. 
618,  9  L.  R.  A.  433.  One  who  is  both  ancil- 
lary and  domiciliary  administratrix  of  the 
same  estate  cannot  be  called  on,  in  one  ju- 
risdiction, to  account  for  assets  received  in 


EXECUTORS  AND  ADMINISTRATORS  1135  EXECUTORS  AND  ADMINISTRATORS 


the  other;    Hamilton  v.  Carrington,  41  S.  C. 
385,  19  S.  E.  616. 

Executors  in  the  state  of  testator's  domicil 
are  not  hound,  under  the  full  faith  and  cred- 
it clause,  by  a  decree  of  the  court  of  another 
state  against  an  administrator  c.  t  a.,  in  a 
case  submitted  to  arbitration  before  the  tes- 
tator's death;  Brown  v.  Fletcher's  Estate, 
210  U.  S.  82,  28  Sup.  Ct.  702,  52  L.  Ed.  966. 

GfBterorum.  That  which  is  granted  as  to 
the  residue  of  an  estate,  which  cannot  be  ad- 
ministered under  the  limited  power  already 
granted;  4  Hagg.  Eccl.  382,  3SG;  4  M.  &  G. 
398 ;   1  Curt.  Eccl.  28G. 

It  differs  from  administration  de  bonis  non 
in  this,  that  in  costerorum  the  full  power 
granted  is  exercised  and  exhausted,  while 
in  the  other  the  power  is,  for  some  cause,  not 
fully  exercised. 

Cum  testamento  anncxo.  That  which  is 
granted  where  no  executor  is  named  in  the 
will,  or  where  the  one  named  dies,  or  is  in- 
competent or  unwilling  to  act.  Such  an  ad- 
ministrator must  follow  the  statute  rules  of 
distribution,  except  when  otherwise  directed 
by  the  will;  Ex  parte  Brown,  2  Bradf.  (N. 
Y.)  22;  Farwell  v.  Jacobs,  4  Mass.  634; 
Stacy  v.  Thrasher,  G  How.  (U.  S.)  59,  12  L. 
Ed.  337.  The  residuary  legatee  is  appointed 
such  administrator  rather  than  the  next  of 
kin;  Estate  of  Donnelly,  2  Phil.  (Pa.)  54; 
Thornton  v.  Winston,  4  Leigh  (Va.)  152;  2 
Add.  352. 

De  bonis  non.  That  which  is  granted  when 
the  first  administrator  dies  before  having 
fully  administered.  The  person  so  appointed 
has  in  general  the  powers  of  a  common  ad- 
ministrator; Bacon,  Abr.  Executors,  B,  1; 
Rolle,  Abr.  907;  Matthews  v.  Douthitt,  27 
Ala.  273,  62  Am.  Dec.  765 ;  State  v.  Porter. 
9  Ind.  342;  Thomas  v.  Stanley,  4  Sneed 
(Tenn.)  411;  Watson  v.  Jacobs,  29  Vt.  170; 
Johnson  v.  Bank,  11  Md.  412 ;  Coffin  v.  Heath, 
G  Mete.  (Mass.)  78;  Wiggin  v.  Swett,  6  Mete. 
(Mass.)  198,  39  Am.  Dec.  716;  Prusa  v. 
Everett,  78  Neb.  250,  110  N.  W.  5(!S;  Prusa  v. 
Everett,  78  Neb.  251,  113  N.  W.  571. 

A  residuary  legatee  has  sufficient  interest 
in  an  estate  to  request  the  appointment  of  an 
administrator  d.  b.  n.  to  collect  debts,  wheth- 
er it  will  make  the  estate  solvent  or  not ; 
Mallory's  Appeal  from  Probate.  G2  Conn.  21S, 
25  Atl.  109. 

De  bonis  non  cum  testamento  annexe 
That  which  is  granted  when  an  executor 
dies  leaving  a  part  of  the  estate  unadminis- 
tered.  Comyns,  Dig.  Adm.  B,  1 ;  Ellmaker's 
Estate,  4  Watts  (Pa.)  34,  38,  39.  It  cannot 
be  based  on  a  will  made  in  a  foreign  country 
if  invalid  there  because  of  defective  execu- 
tion;   Coleman's  Estate,  13  Pa.  Co.  Ct.  81. 

Durante  absentia.  That  which  subsists 
during  the  absence  of  the  executor  and  until 
he  has  proved  the  will.  In  England,  by  stat- 
ute, such  an  administration  is  raised  during 
the  absence  of  the  executor,  and  is  not  de- 
.termined  by  the  executor's  dying  abroad;  4 


Hagg.  Eccl.  360;   3  Bos.  &  P.  26;  see  Willing 
<l,    5    Rawle    (Pa.  |    264. 

Durante  minori  (State.  That  which  is 
granted  when  the  executor  is  a  minor.  It 
continues  until  the  minor  attains  bis  lawful 
age  to  act,  which  at  common  law  is  seven- 
teen years;  5  Coke  29.  When  an  infant  is 
sole  executor,  the  statin, 
s.  6  provides  that  probate  shall  not  be  grant- 
ed to  him  until  his  full  age  of  twenty-one 
years,  and  that  adm.  cum  test.  <iint<  to  shall 
be  granted  in  the  mean  time  to  his  guardian 
or  other  suitable  person.  A  similar  statute 
proi  Ision  exists  in  most  of  the  United  States. 
this  administrator  may  collect  assets,  pay 
debts,  sell  bona  peritura,  and  perform  such 
other  acts  as  require  immediate  attention. 
He  may  sue  and  be  sued;  Bacon,  Abr. 
ecutor,  B,  1;  Cro.  Eliz.  718;  2  Bla.  Com. 
503;  5  Coke  29;  Taylor  v.  Barron,  o5  N.  11. 
484,  493. 

Where  there  are  no  creditors  or  heirs  of 
age,  the  tutor  of  minor  heirs  has  a  right  to 
take  possession  of  succession  property  and 
administer  their  interests  in  it ;  Succession 
of  Bourgeois,  43  La.   Ann.  247,   9  South.  34. 

Foreign  administration.  That  wbieb  is  ex- 
ercised by  virtue  of  authority  properly  con- 
ferred by  a  foreign  power. 

The  general  rule  in  England  and  the  Unit- 
ed States  is  that  letters  granted  in  one  ju- 
risdiction, give  no  authority  to  sue  or  be  sued 
in  another  jurisdiction,  though  they  may  be 
ground  for  new  probate  authority  ;  5  Ves. 
44;  Blackstoue  v.  Miller,  lbS  U.  S.  1 
Sup.  Ct.  277,  47  L.  Ed.  439;  Doe  v.  M- 
Farland,  9  Cra.  (U.  S.)  151,  3  L.  Ed.  687; 
Armstrong  v.  Lear.  12  Wheat.  (U.  S.)  1  69, 
6  L.  Ed.  589;  Perkins  v.  Williams,  2  Root 
(Conn.)  4G2  ;  Dangerlield's  Ex'x  v.  Thurs- 
ton's Heirs,  8  Mart.  (N.  S.l  [La.]  232; 
M'Cullough  v.  Young,  1  Binn.  (Pa.)  63;  Mat- 
thews v.  Douthitt.  l:7  Ala.  273,  62  Am.  Dec. 
765;  Fisk  v.  Norvel,  9  Tex.  13,  58  Am.  Dec. 
128;  State  v.  Price,  21  Mo.  434;  Cocke  v. 
Finley,  29  Miss.  127  ;  Dickinson  v.  MVraw. 
i  Rand.  (Va.)  158;  AUsup  v.  Allsup's  Heirs. 
Hi  Yerg.  (Tenn.)  283;  Stearns  v.  Burnham, 
5  GreenL  (Me.)  201,  17  Am.  Dec.  228;  Tay- 
lor v.  Barron,  35  N.  H.  4S4;  Wood  v.  Gold, 
4  McLean  ('.  ('.  ."77,  Fed.  Caa,  No.  17. '.MT  : 
Vaughan  v.  Northup,  15  Pet  (U.  S.)  l.  i" 
L.  Ed.  639;  Hid  v.  Tucker.  13  How.  (U.  S.) 
i;,s.  ii  l.  Ed.  223;  Black  v.  Allen  Co.,  42 
Fed.  618,  9  L.  R.  A.  4:;:;;  Farrington  v.  Trust 
Co.,  9  N.  Y.  Supp.  433.  Hence,  when  persons 
are  domiciled  and  die  in  one  country  as  A. 
and  have  personal  property  in  another  as  B, 
the  authority  must  be  had  in  B,  but  exer- 
cised according  to  the  laws  of  A:  Story, 
Confl.  Laws  23,  117;  Leach  v.  Pillsbury.  15 
X.  II.  137;  Spraddling  v.  Pipkin.  15  Mo.  118; 
Williams  v.  Williams,  5  Md.  4G7  ;  Ex  parte 
McComb,  4  Bradf.  (N.  V.  i  151;  King  v.  U. 
s.,  -J7  Ct  Cl.  529;  Rutherford  v.  U.  S.,  27 
Ct.  CL  539;    and  see  Domii  n. 

There  is  no  legal  privity  between  admin- 


EXECUTORS  AND  ADMINISTRATORS  H3G  EXECUTORS  AND  ADMINISTRATORS 


istrators  in  different  states;  nor  between 
executors  of  a  will  in  one  state  and  adminis- 
trators c.  t.  a.  in  another ;  Wilson  v.  Ins.  Co., 
164  Fed.  817,  90  C.  C.  A.  593,  19  L.  R.  A.  (N. 
S.)  553.  The  principal  administrator  is  to 
act  in  the  intestate's  domicil,  and  the  ancil- 
lary is  to  collect  claims  and  pay  debts  in  the 
foreign  jurisdiction  and  pay  over  the  surplus 
to  his  principal ;  Pond  v.  Makepeace,  2  Mete. 
(Mass.)  114;  3  Hagg.  EccL  199;  Jones  v. 
Marable,  6  Humph.  (Tenn.)  116;  Lawrence 
v.  Kitteridge,  21  Conn.  577,  56  Am.  Dec.  3S5 ; 
Stokely's  Estate,  19  Pa.  476 ;  Riley  v.  Riley, 
3  Day  (Conn.)  74,  3  Am.  Dec.  260;  The 
Boston,  1  Blatchf.  &  H.  309,  Fed.  Cas.  No. 
1,669;  Kilpatrick  v.  Bush,  23  Miss.  199;  2 
Curt.  Eccl.  241;  Carinicbael  v.  Ray,  1  Rich. 
(S.  C)  116. 

Payment  to  an  ancillary  administrator  is 
no  bar  to  a  suit  by  the  administrator  of  the 
domicile ;  Maas  v.  Bank,  36  Misc.  154,  72 
N.  Y.  Supp.  1068;  nor  is  it  a  defence  to  a 
prior  action  by  the  domiciliary  administra- 
tor in  another  state,  of  which  the  defendant 
had  knowledge  before  payment ;  Steele  v. 
Ins.  Co.,  160  N.  Y.  703,  57  N.  E.  1125.  For 
other  cases  see  15  Harv.  L.  Rev.  412.  But  in 
Quebec  a  foreign  administrator  is  recog- 
nized; 12  Harv.  L.  Rev.  287;  as  well  as 
foreign  guardians  and  receivers,  and  this 
rule  is  said  to  be  satisfactory  in  operation; 
id.,  citing  Lafleur,  Confl.  L. 

An  administrator  appointed  in  Michigan 
cannot  sue  a  resident  of  New  York  in  the 
United  States  circuit  court  in  that  state 
when  he  had  not  taken  out  letters  of  admin- 
istration in  New  York ;  Johnson  v.  Powers, 
139  U.  S.  156,  11  Sup.  Ct.  525,  35  L.  Ed.  112. 

But  some  courts  hold  that  the  probate  of 
a  will  in  a  foreign  state,  if  duly  authenti- 
cated, dispenses  with  the  necessity  of  taking 
out  new  letters  in  their  state ;  Lancaster  v. 
McBryde,  27  N.  C.  421 ;  Gray  v.  Patton,  2  B. 
Monr.  (Ky.)  12;  Rice  v.  Jones,  4  Call  (Va.) 
S9;  Vaughan  v.  Northup,  15  Pet.  (U.  S.)  1, 
10  L.  Ed.  639;  Ives  v.  Allyn,  12  Vt.  589; 
Hayes  v.  Pratt,  147  U.  S.  557,  13  Sup.  Ct.  503, 
37  L.  Ed.  279. 

Where  a  deceased  plaintiff  was  domiciled 
in  another  state,  an  executor  appointed  in 
the  domicil  will  be  preferred  to  a  temporary 
administrator  appointed  in  the  state  of  the 
forum,  as  the  new  party ;  Norman  v.  Goode, 
113  Ga.  121,  38  S.  E.  317. 

It  has  been  held  that  possession  of  prop- 
erty may  be  taken  in  a  foreign  state,  but  a 
suit  cannot  be  brought  without  taking  out 
letters  in  that  state ;  Watt's  Ex'rs  v.  Shep- 
pard,  2  Ala.  429 ;  Trotter  v.  White,  10  Smedes 
&  M.  (Miss.)  607;  Suarez  v.  City  of  New 
York,  2  Sandf.  Ch.  (N.  Y.)  173.  In  Arizona 
suit  may  be  brought  upon  a  foreign  judgment 
without  taking  out  new  lettei's  of  adminis- 
tration ;  Arizona  Cattle  Co.  v.  Huber,  4  Ariz. 
69,  33  Pac.  555.     See  Conflict  of  Laws. 

For  the  purpose  of  administration,  the 
situs  of  a  debt  is  the  domicil  of  the  debtor 


and  not  the  place  where  the  evidence  of  the 
debt  is  located;  Michigan  Trust  Co.  v.  Pro- 
basco,  29  Ind.  App.  109,  63  N.  E.  255;  Mur- 
phy v.  Crouse,  135  Cal.  14,  66  Pac.  971,  87 
Am.  St.  Rep.  90,  where  it  was  said  that  in 
this  respect  certificates  of  stock  do  not  differ 
from  other  choses  in  action.  The  situs,  us 
property,  of  corporate  stock  owned  by  a  non- 
resident decedent  is  within  the  county  where 
the  corporate  property  is  or  where  the  cor- 
poration has  its  principal  place  of  business ; 
In  re  Arnold,  114  App.  Div.  244,  99  N.  Y. 
Supp.  740. 

Pendente  lite.  That  which  is  granted 
pending  the  controversy  respecting  an  al- 
leged will  or  the  right  of  appointment.  An 
officer  of  the  court  is  appointed  to  take  care 
of  the  estate  only  till  the  suit  terminates; 
2  P.  Will.  589;  1  Hagg.  Eccl.  313 ;  Bergin 
v.  McFarland,  26  N.  H.  533;  Fisk  v.  Norvel, 
9  Tex.  13,  58  Am.  Dec.  128;  Barksdale  v. 
Cobb,  16  Ga.  13;  Cole  v.  Wooden,  18  N.  J. 
L.  15.  He  may  maintain  suits,  but  cannot 
distribute  the  assets ;  1  Ball  &  B.  192 ;  Cain 
v.  Warford,  7  Md.  282;  Appeal  of  Patton,  31 
Pa.  465;   Rogers  v.  Dively,  51  Mo.  193. 

Public.  That  which  the  public  adminis- 
trator performs.  This  is  in  many  of  the 
states  by  statute  in  those  cases  where  per- 
sons die  intestate,  without  leaving  any  who 
are  entitled  to  apply  for  letters  of  adminis- 
tration ;  Ferrie  v.  Public  Administrator,  3 
Bradf.  (N.  Y.)  151;  Public  Adm'rs  v.  Bur- 
dell,  4  id.  252. 

In  many  states  there  Is  provision  of  iaw 
for  the  appointment  of  a  public  administra- 
tor whose  duty  it  is  to  administer  upon  the 
estate  of  any  person  found  dead  within  his 
jurisdiction.  Such  officer  is  competent  to 
administer  on  the  estate  within  his  county 
of  any  decedent  irrespective  of  the  place  of 
his  death ;  In  re  Richardson's  Estate,  120 
Cal.  344,  52  Pac.  832 ;  and  such  administra- 
tor has  no  authority  to  refuse  to  enter  upon 
or  to  continue  the  administration  of  an  es- 
tate, which  by  law  he  should  administer. 
He  cannot  retain  the  office  and  choose  for 
himself  which  of  its  duties  he  will  perform; 
State  v.  Kennedy,   73  Mo.  App.  384. 

The  authority  of  a  public  administrator 
to  take  charge  of  an  estate  cannot  be  col- 
laterally questioned;  Dunn  v.  German- Amer- 
ican Bank,  109  Mo.  90,  18  S.  W.  1139 ;  Weir 
v.  Monahan,  67  Miss.  434,  7  South.  291. 

Special.  That  which  is  limited  either  in 
time  or  in  power.  Such  administration  does 
not  come  under  the  statutes  of  31  Edw.  III. 
c.  11,  and  21  Hen.  VIII.  c.  5,  on  which  the 
modern  English  and  American  laws  are 
founded.  A  judgment  against  a  special  ad- 
ministrator binds  the  estate ;  1  Sneed  430 ; 
although  there  is  no  property  but  merely  a 
right  of  action,  and  if  there  is  delay  in 
granting  the  administration,  a  special  ad- 
ministrator might  be  appointed  where  im- 
mediate settlement  could  be  made;  Groce  v. 
Helm,  91  Mich.  450,  51  N.  W.  1106.      In  the 


EXECUTORS  AND  ADMINISTRATORS  1137  EXECUTORS  AND  ADMINISTRATORS 


United  States,  administration  is  a  subject 
charged  upon  courts  of  civil  jurisdiction.  A 
multiplicity  of  statutes  defines  the  powers 
of  such  courts  iu  the  various  states.  The 
public  officer  authorized  to  delegate  the  trust 
is  called  surrogate,  judge  of  probate,  register 
of  wills,  etc.  In  some  states,  these  courts 
are  of  special  jurisdiction,  while  in  others 
the  power  is  vested  in  count}7  courts. 

Death  of  the  intestate  must  have  taken 
place,  or  the  court  will  have  no  Jurisdiction. 
Probate  proceedings  on  the  estate  of  a  per- 
son who  is  not  dead  are  void;  Fay  v.  Costa, 
2  Cal.  App.  241,  83  Pac.  275;  Steele's  Un- 
known Heirs  v.  Belding  (Tex.)  14S  S.  W. 
592.  A  decree  of  the  court  is  prima  Jiu  ie  evi- 
dence of  his  death,  and  puts  the  burden  of 
disproof  upon  the  party  pleading  in  abate- 
ment; 3  Term  130;  Munro  v.  Merchant,  26 
Barb.  (N.  Y.)  383;  Barkaloo's  Adm'r  v. 
Emerick,  18  Ohio  268. 

Estates  of  absentees.  Statutes  authoriz- 
ing administration  on  the  estate  of  an  ab- 
sentee after  a  fixed  period,  as  if  he  were 
dead,  have  been  held  void  as  a  deprivation 
of  property  without  due  process  of  law;  Carr 
v.  Brown,  20  R.  I.  215,  38  Atl.  9.  38  L.  R.  A. 
294,  7S  Am.  St.  Rep.  855;  Lavin  v.  Bank,  1 
Fed.  641,  18  Blatchf.  1;  Clapp  v.  Houg,  12 
N.  D.  600,  98  N.  W.  710,  65  L.  R.  A.  757,  102 
Am.  St.  Rep.  589;  Savings  Bank  of  Balti- 
more v.  Weeks,  103  Md.  001,  64  Atl.  295,  6  L. 
R.  A.  (N.  S.)  690;  Selden  v.  Kennedy,  104 
Va.  826,  52  S.  E.  635,  4  L.  R.  A.  (N.  S.)  944, 
113  Am.  St.  Rep.  1076,  7  Ann.  Cas.  879;  in 
the  absence  of  a  statute;  Scott  v.  McNeal, 
154  U.  S.  49,  14  Sup.  Ct.  1108,  38  L.  Ed.  896 ; 
Springer  v.  Shavender,  US  N.  C.  53,  23  S.  E. 
976,  54  Am.  St.  Rep.  708 ;  Devlin  v.  Com.,  101 
Pa.  273,  47  Am.  Rep.  710;  subsequently  a 
statute  was  passed  in  Pennsylvania  and  held 
constitutional;  Cunnius  v.  School  Dist,  206 
Pa.  469,  56  Atl.  16,  98  Am.  St.  Rep.  790; 
this  judgment  was  affirmed  in  198  U.  S.  458, 
25  Sup.  Ct.  721,  49  L.  Ed.  1125,  3  Ann.  Cas. 
1121,  where  the  court  distinguished  the  case 
from  that  in  154  U.  S.,  supra,  upon  the 
ground  that  in  the  former  case  there  was  no 
statute,  and  that  in  the  present  one,  a  stat- 
ute having  been  passed  and  the  period  of 
absence  being  fixed  and  not  unreasonably 
brief,  it  was  valid  and  not  open  to  the  ob- 
jection of  want  of  due  process  of  law ;  and 
similar  statutes  have  been  held  valid;  Bar- 
tan  v.  Kimmerley,  165  Ind.  t>09,  76  N.  E.  250, 
112  Am.  St.  Rep.  252;  Roderigas  v.  Savings 
Inst,  63  N.  Y.  460.  20  Am.  Rep.  555,  which 
appeared  for  a  time  to  stand  alone  and  was 
frequently  referred  to  as  having  been  de- 
cided by  a  mere  majority  of  the  court.  The 
same  statute  was  held  invalid  by  the  fed- 
eral court  in  Lavin  v.  Savings  Bank,  18 
Blatchf.  1,  1  Fed.  641.  So  far  as  the  federal 
constitution  is  concerned,  the  Pennsylvania 
case  in  Cunnius  v.  School  Dist.,  198  U.  S. 
458,  25  Sup.  Ct.  721,  49  L.  Ed.  1125,  would 
seem  to  settle  the  question,  at  least  so  far 
Bouv.— 72 


as  to  determine  that  such  statuti 
obnoxious  to  the  XlVth  Amendment  of  the 
federal    constitution.     So   far   as   the 
constitutions  are  concerned  the  ca 
as  appears  by  the  above  '-nations, 
in   .Maryland  is  put  mainly  upon  the  ground 
that  the  act  contained  no  pro'  iring 

that  before  the  distribution  of  the  property 
of  the  absentee,  security  should  be  given  for 
its  refund  if  he  should  prove  to  be  alive. 

Appointment  oi  i . 
tbatobs  am)  the  Letters  I 
op  Administration.  The  appointment  of  ex- 
ecutors and  administrators  is  made  npon  ap- 
plication  to  the  proper  officer  having  juris- 
diction, in  some  states  by  a  petition  foil 
by  a  citation  to  the  interested  parties, 
served  upon  them  or  published  according  to 
law.  Any  one  of  such  interested  parties  may 
appear  and  show  cause  against  the  appoint- 
ment In  other  states  the  appointment  is 
mad"  without  notice,  upon  proof  to  the  pro- 
bate officer  of  the  jurisdictional  facts.  The 
evidence  of  appointment  which  is  deliyered 
to  the  appointee  is  termed,  in  the  case  of  ad- 
ministrators, Letters  of  A  dm  ini.it  rat  ion,  and 
in  the  case  of  executors,  L<  tt<  rx  Testa 
tary.  In  either  case  the  letters  certify  that 
there  is  given  to  the  executor  or  adminis- 
trator, as  the  case  may  be,  full  power  of 
administration  of  the  goods,  chattels,  rights, 
and  credits  which  were  of  the  deceased,  and 
the  person  appointed  is  required  to  make  an 
inventory  and  file  the  same,  to  pay  the  debts 
of  the  deceased  so  far  as  the  property  will 
extend,  in  the  legal  order  of  payment,  and 
render  a  true  and  just  account  of  his  trans- 
actions in  the  administration  of  the  trust. 
In  respect  to  all  matters  relating  thereto, 
there  is  little  or  no  difference  in  the  law  re- 
lating to  letters  of  administration  or  letters 
testamentary.  The  grant  of  such  lett 
a  judicial  act  and  recorded  as  such,  and  the 
letters  themselves  should  be  duly  authenti- 
cated under  the  seal  of  the  court;  Schoul. 
Ex.  &  Ad.  §  US.  For  the  form  of  letters. 
see  Smith,  Prob.  Pract  App.;  Witxel  v. 
Pierce,  l'l'  6a.  112. 

In  most  of  the  states  it  is  provided  by  law 
that  both  executors  and  administrators  shall 
lie  required  to  give  bond  before  receiving 
their  letters  from  the  probate  authority. 
Such  requirements  have  been  held  to  impose 
on  the  executors  ami  administrators  no  new 
duties,  but  their  effect  is  merely  t<>  give  addi- 
tional remedy  to  creditors,  Legatees,  and 
distributees;  Eaton  v.  Benefleld,  2  Blackf. 
(Ind.)  52.  In  some  jurisdictions  it  is  quite 
usual  to  find  a  provision  in  the  will  dispens- 
ing with  the  giving  of  the  bond  I -y  the  execu- 
tors and  such  Indication  of  the  will  of  the 
testator  is  respected.  It  has  been  held,  how- 
ever, that  a  provision  of  a  will  that  the 
executor  may  act  without  executing  a  bond 
is  at  all  times  subject  to  the  control  of  the 
courts;  Busch  v.  Rapp,  63  S.  W.  IT'.'.  23  Ky. 
L.  Rep.  6u5.     One  who  is  not  interested  in 


EXECUTORS  AND  ADMINISTRATORS  1138  EXECUTORS  AND  ADMINISTRATORS 


the  assets  of  the  estate  can  raise  no  ques- 
tion as  to  the  sufficiency  or  legality  of  the 
bond  which  has  been  accepted ;  Jones  v. 
Smith,  120  Ga.  042,  48  S.  E.  134.  The  fail- 
ure of  an  administrator  to  give  a  bond  is 
ground  for  removal;  Toledo,  St.  L.  &  K.  C. 
R.  Co.  v.  Reeves,  8  Ind.  App.  G67,  35  N.  E. 
199;  but  the  fact  that  an  executor's  bond 
is  invalid,  is  no  ground  for  his  removal ; 
Barricklow  v.  Stewart,  31  Ind.  App.  446,  68 
N.  E.  316. 

Executors  and  administrators  are  charged 
with  a  trust,  and  liable  for  the  want  of  due 
care  such  as  prudent  men  exercise  in  manag- 
ing their  own  affairs ;  State  v.  Dickson,  213 
Mo.  66,  111  S.  W.  817;  In  re  Chadbourne, 
15  Cal.  App.  363,  114  Pac.  1012. 

The  grant  of  letters  has  been  held  to  be 
prima  facie  evidence  of  all  the  essential  ju- 
risdictional facts;  Davis  v.  Swearingen,  56 
Ala.  31;  but  it  is  generally  considered  that 
the  probate  court,  in  granting  letters  of  ad- 
ministration does  not  adjudicate  that  the 
person  is  dead,  but  that  letters  shall  be 
granted  to  the  applicant ;  Carroll  v.  Carroll, 
60  N.  Y.  121,  19  Am.  Rep.  144;  Newman  v. 
Jenkins,  10  Pick.  (Mass.)  515;  and  the  let- 
ters are  not  legal  evidence  of  the  death; 
Mutual  Ben.  Life  Ins.  Co.  v.  Tisdale,  91  U. 
S.  238,  23  L.  Ed.  314.  Letters  of  administra- 
tion upon  the  estate  of  a  person  who  is  in 
fact  alive  have  no  validity  or  effect  as 
against  him;  Scott  v.  McNeal,  154  U.  S.  34, 
14  Sup.  Ct.  1108,  38  L.  Ed.  896. 

As  to  the  grant  of  letters  of  administration 
upon  the  estate  of  a  person  presumed  to  be 
dead,  see  supra. 

A  grant  of  letters  which  includes  two 
estates  under  one  administration  would  be 
irregular  and  objectionable,  but  it  has  been 
held  not  to  be  void ;  Grande  v.  Herrera,  15 
Tex.  533 ;  the  letters  should  be  signed  by 
the  judge  or  other  probate  officer ;  Succes- 
sion of  Carlon,  26  La.  Ann.  329;  Matthews 
v.  Joyce,  85  N.  C.  258;  and  they  are  not  void 
though  the  seal  of  the  court  is  aflixed  in  the 
wrong  place ;  Sbarp  v.  Dye,  64  Cal.  9,  27 
Pac.  7S9. 

Letters  testamentary  and  of  administration 
are,  according  to  their  terms  and  extent,  con- 
clusive as  to  personal  property  while  they  re- 
main unrevoked.  They  cannot  be  questioned 
in  a  court  of  law  or  of  equity,  and  cannot  be 
impeached,  even  by  evidence  of  fraud  or  for- 
gery. Proof  that  the  testator  was  insane,  or 
that  the  will  was  forged,  is  inadmissible ;  12 
Ves.  29S;  Broderick's  Will,  21  Wall.  (U.  S.) 
503,  22  L.  Ed.  599 ;  Hall  v.  Woodman,  49  N. 
H.  295 ;  Appeal  of  Hegarty,  75  Pa.  503 ;  In- 
habitants of  Dublin  v.  Chadbourn,  16  Mass. 
433;  Jackson  v.  Le  Grange;  19  Johns.  (N.  Y.) 
3S6,  10  Am.  Dec.  237;  Irwin  v.  Seriber,  18 
Cal.  499 ;  Carroll  v.  Carroll,  60  N.  Y.  123,  19 
Am.  Rep.  144 ;  Moore's  Estate  v.  Moore,  33 
Neb.  509,  50  N.  W.  443;  O'Connor  v.  Hug- 
gins,  113  N.  Y.  511,  21  N.  E.  1S4 ;  Robinson  v. 
Epping,  24  Fla.  237,  4  South.  S12.    But  if  the 


nature  of  the  plea  raise  the  issue,  it  may  be 
shown  that  the  court  granting  the  supposed 
letters  had  no  jurisdiction,  and  that  its  ac- 
tion is  therefore  a  nullity ;  3  Term  130 ;  see 
Knox  v.  Nobel,  77  Hun  230,  2S  N.  Y.  Supp. 
355 ;  or  that  the  seal  attached  to  the  sup- 
posed probate  has  been  forged,  or  that  the 
letters  have  been  revoked,  or  that  the  testa- 
tor is  alive ;  In  re  Huff's  Estate,  15  S.  &  R. 
(Pa.)  42 ;  Griffith  v.  Frazier,  8  Cra.  (U.  S.)  9, 
3  L.  Ed.  471;  Jochumsen  v.  Bank,  3  Allen 
(Mass.)  87 ;  Duncan  v.  Stewart,  25  Ala.  408, 
00  Am.  Dec.  527 ;  Harwood  v.  Wylie,  70  Tex. 
53S,  7  S.  W.  7!S9.  Where  an  executor  quali- 
fied and  acted  for  many  years  under  his  ap- 
pointment,, he  will  not  be  allowed  to  dispute 
the  recitation  in  his  appointment  that  cita- 
tion to  the  heirs  was  issued  and  served ;  In 
re  Moore,  95  Cal.  34,  30  Pac.  106. 

Though  the  probate  court  has  exclusive  ju- 
risdiction of  the  grant  of  letters,  yet  where 
a  legacy  has  been  obtained  by  fraud,  or  the 
probate  has  been  procured  by  fraud  on  the 
next  of  kin,  a  court  of  equity  would  hold  the 
legatee  or  wrong-doer  as  bound  by  a  trust  for 
the  party  Injured ;  Wms.  Ex.  552.  While  a 
court  of  equity  cannot  remove  an  executor ; 
Mannhardt  v.  Staats  Zeitung  Co.,  90  111.  App. 
315 ;  it  may  restrain  him  from  acting,  though 
such  restraint  will  incidentally  prevent  him 
from  performing  his  duties  as  executor;  Bent- 
ley  v.  Dixon,  60  N.  J.  Eq.  353,  46  Atl.  6S9 ;  and 
even  take  the  estate  out  of  his  hands  and 
place  it  in  the  custody  of  a  receiver ;  Bolles 
v.  Bolles,  44  N.  J.  Eq.  385,  14  Atl.  593. 

Letters  may  be  revoked  by  the  court  which 
made  the  grant,  or  on  appeal  to  a  higher  tri- 
bunal, reversing  the  decision  by  which  they 
were  granted.  Special  or  limited  administra- 
tion will  be  revoked  on  the  occasion  ceasing 
which  called  for  the  grant.  An  executor  or 
administrator  will  be  removed  when  the  let- 
ters were  obtained  improperly;  Wms.  Ex. 
571. 

Of  their  effect  in  a  state  other  than  that  in 
which  legal  proceedings  were  instituted. 

In  view  of  the  rule  of  the  civil  law,  that 
personalia  sequuntur  personam,  certain  ef- 
fect has  been  given  by  the  comity  of  nations 
to  a  foreign  probate  granted  at  the  place  of 
the  domicil  of  the  deceased,  in  respect  to  the 
personal  assets  in  other  states.  At  common 
law,  the  lex  loci  rei  sitw  governs  as  to  real 
estate,  and  the  foreign  probate  has  no  va- 
lidity; but  as  to  personalty  the  law  of  the 
domicil  governs  both  as  to  testacy  and  intes- 
tacy. It  is  customary,  therefore,  on  a  due 
exemplification  of  the  probate  granted  at  the 
place  of  domicil,  to  admit  the  will  to  pro- 
Late,  and  issue  letters  testamentary,  without 
requiring  original  or  further  proof. 

A  foreign  probate  at  the  place  of  domicil 
has  in  itself  no  force  or  effect  beyond  the  ju- 
risdiction in  which  it  was  granted,  but  on  its 
production  fresh  probate  will  be  granted 
thereon  in  all  other  jurisdictions  where  assets 


EXECUTORS  AND  ADMINISTRATORS  1130  EXECUTORS  AND  ADMINISTRATORS 


are  found.  This  is  the  general  rule,  but  is 
liable  to  be  varied  by  statute,  and  is  bo  varied 
in  some  of  the  states  of  the  United  States. 

Letters  testamentary  or  of  administration 
confer  no  power  beyond  the  limits  of  the 
state  in  which  they  are  granted,  and  do  not 
authorize  the  person  to  whom  they  are  is- 
sued to  maintain  any  suit  in  the  state  or 
federal  courts  in  any  other  state;  Johnson 
v.  Powers,  l.°>9  U.  S.  150,  11  Snp.  Ct.  525,  35 
L.  Ed.  112;  Wilkins  v.  Ellett,  10S  U.  S.  256,  2 
Sup.  Ct  641,  27  L.  Ed.  718 ;  the  executor  or 
administrator  has  therefore,  as  such,  no  right 
dl'  control  over  property  in  another  state  or 
country;  Mansfield  v.  Turpin,  32  Ga.  - 
Upton  v.  Adam's  Ex'rs,  27  Ind.  432;  Wood 
v.  Gold,  4  McLean  577;  Fed.  Cas.  No.  17,- 
947;  Lewis  v.  McMillen,  41  Barb.  (N.  Y.)  431; 
Carmichael  v.  Ray,  40  N.  C.  305;  he  cannot 
interfere  with  assets,  collect  or  discharge 
debts,  control  lands,  sue  or  be  sued ;  Schoul. 
Ex.  &  Ad.  §  173.  The  principle  is,  that  a 
grant  of  power  to  administer  the  estate  of  a 
decedent  operates  only  as  of  right  within  the 
jurisdiction  which  grants  the  letters,  and  in 
order  that  a  foreign  representative  may  ex- 
ercise any  such  function  he  must  be  clothed 
with  authority  from  the  jurisdiction  into 
which  he  comes,  and  conform  to  the  require- 
ments imposed  by  local  law ;  Moore  v.  Fields, 
42  Pa.  4G7;  Beckham  v.  Wittkowski,  64  N. 
C.  464 ;  Trice  v.  Morris,  5  McLean,  4,  Fed. 
Cas.  No.  11,414;  Bell's  Adm'r  v.  Nichols,  38 
Ala.  678 ;  Graveley  v.  Graveley,  25  S.  C.  1,  60 
Am.  Rep.  478;  Laurence  v.  Nelson,  143  U.  S. 
215,  12  Sup.  Ct.  440,  30  L.  Ed.  130 ;  Duchesse 
d'Auxy  v.  Porter,  41  Fed.  68;  Reynolds  v. 
MeMuiien,  55  Mich.  568,  22  N.  W.  41,  54  Am. 
Rep.  386.  In  most,  probably  all,  of  the  states 
there  is  statutory  provision,  either  for  the 
grant  of  ancillary  letters  or  for  authorizing 
and  regulating  suits  by  foreign  executors  and* 
administrators.  In  many  of  them  these  of- 
ficers, properly  qualified  abroad,  are  permit- 
ted to  sue  for  and  recover  local  assets  with- 
out other  qualification,  within  the  new  ju- 
risdiction, than  putting  on  record  their  au- 
thority as  conferred  by  the  home  jurisdiction, 
and  such  authority  must  be  strictly  followed. 
In  many  of  the  states  there  is  authority  to 
sue  and  defend  without  ancillary  administra- 
tion ;  Hayes  v.  Pratt,  147  U.  S.  557,  13  Sup. 
Ct  503,  37  L.  Ed.  279;  Banta  v.  Moore,  15  N. 
J.  Eq.  97;  Marrett  v.  Babb'S  Ex'r,  1)1  Ky.  88, 
15  S.  W.  4;  Lewis  v.  Adams.  70  Cal.  403,  11 
Pac.  833,  59  Am.  Rep.  423;  Tver  v.  Moiling 
Co.,  32  S.  C.  59S,  10  S.  E.  1007  ;  and  this  rlghl 
to  sue  has  been  extended  to  a  foreign  corpo- 
ration duly  authorized  to  act  in  its  own  ju- 
risdiction;  Deringer's  Adm'r  v.  Deringer's 
Adm'r,  5  Roust  (Del.)  410,  1  Am.  St.  Rep. 
150;  in  some  statutes  there  is  express  au- 
thority to  defend  suits;  Moss  v.  Rowland,  3 
Bush  (Ky.)  505;  but  it  has  been  held  that 
statutory  authority  to  sue  does  not  imply 
capacity  to  be  sued;   Jones  v.  Lamar,  77  Ga. 


149 ;    nor  to  sue   for  intestate   lauds   where 
they  W(  ts  in  the  hands 

of   a   d  oistrator;    Fairchild    v. 

Hagel,  54  Ark.  01,  14  S.  W.  1102;  but  I 
for  the  gra  J  administration;    Gib- 

son v.   i  .  195 ;    where  DO  suit  is 

iry  a  foreign  executor  or  administra- 
tor has  been  permitted  to  remove 
property  and  .any  it  away  for  the  purp 
administration;    Petersen  v.  _   X.  Y. 

21,  ss  Am.   i '  ■■-.  298  .    I   . 
Minn.  242,  47  N.  YV.  790,  11  L.  K.  A.   ll 
Namara  v.  McNamara,  oi*  Ga.  - 
Rusco,  46  <  '"mi.  370 ;    and  in 
local   administration   payment   to 
representative  la  recognized;    Wilkins  . 
lett,  108  L.  S.  256,  2  Sup.  Ct  641,  27   L.   Ed. 

Wyn.an    v.    Ilalstead,    109    0.    8.  I 

Sup.  Ct  117.  27  L.  Ed.  1068;   Parsons  v.  Ly- 
man. 20  X.  Y.  103. 

The  latter  may  assign  choses  in  action  be- 
longing to  the  estate,  and  the  assignee  may 
sue  thereon  in  his  own  name  in  another  state. 
unless  prevented  by  its  laws  respecting  8 
monts  from  so  doing;  Wilkins  v.  Ellett  10S 
P.  S.  256,  2  Sup.  Ct  841,  27  I..  Ed.  718;  Camp- 
bell v.  Brown,  64  la.  425,  20  N.  YV.  745,  52 
Am.  Rep.  446;  Solinsky  v.  Bank,  ^2  Tex.  244, 
17  S.  W.  10."ii :  Petersen  v.  Lank.  32  N.  Y.  21. 
88  Am.  Dec.  298;  he  may  also  sue  In  ai 
state  on  a  judgment  there  recovered;  Tal- 
mage  v.  Chapel.  If,  Mass.  71;  Biddle  v.  Wil- 
kins, 1  Pet.  (U.  S.)  686,  7  L.  Ed.  315 ;  Trecoth- 
ick  v.  Austin,  4  Mas.  it;.  Fed.  Cas.  No.  14,164; 
Barton  v.  Higgins,  41  Md.  539;  or  he  may 
sue  in  his  individual  capacity  in  another 
state,  on  a  judgment  recovered  by  him  in  his 
official  capacity  in  his  own  state,  liftman  v. 
Thornton.  107  Mo.  500,  17  S.  \Y.  979,  16  L.  R. 
A.  410;  Arizona  Cattle  Co.  v.  Huber,  4  Ariz. 
69,  33  Pac.  555;  and  upon  a  contract  made 
with  himself  as  suit  a  foreign  executor  or 
administrator  may  sue:  Barrett  v.  Barrett. 
S  Greenl.  (Me.)  346;  Im  Yal  v.  Marshall.  30 
Ark.  230;  Sto.  Confl.  L.  H  513  516  The 
term  foreign  as  applied  to  exe  ators  and  ad- 
ministrators refers  to  the  jurisdiction  from 
which  their  authority  is  derived  and  not  to 
residence;  Frigate  v.  Moore,  86  Ya.  1045,  11 
S.  E.  L063,  19  Am  St.  Rep.  B26;  Bopper  v. 
<■.  L25  N.  V.  400,  26  N.  B.  457,  12  I*  R. 
A.  237.     The  estate  of  a  I  person  is 

substantially  one  estate,  in  which  those  en- 
titled to  the  residue  are  interested  as  a  whole, 
even  though  situated  in  various  jurisdictions, 
and  although  each  distinct  part  of  it  must  he 
settled  in  the  jurisdiction  hy  which  letters 
were  granted  whether  for  the  purpose  of  an- 
cillary or  principal  administration;  Schoul. 
Br.  ft  Ad.  §  17  1;  ordinarily  it  is  the  practice 
gnize  the  person  appointed  executor  or 
administrator  at  the  domicil  of  the  deceased 
as  the  person  to  whom  ancillary  letters  will 
be  granted;  In  re  Blancan.  4  Redf.  <N.  Y.) 
151;  Whart.  Contl.  L.  |  608;  but  there  is  no 
privity  between  persons  appointed  in  differ- 


EXECUTORS  AND  ADMINISTRATORS  1140  EXECUTORS  AND  ADMINISTRATORS 


ent  jurisdictions  whether  they  be  different  or 
the  same,  and  the  executor  or  administrator 
in  one  state  is  not  concluded  in  a  subsequent 
suit  by  the  same  plaintiff  in  another  state 
against  a  person  having  administration  on 
the  estate  of  the  deceased ;  Johnson  v.  Pow- 
ers, 139  U.  S.  156,  11  Sup.  Ct.  525,  35  L.  Ed. 
112 ;  Braithwaite  v.  Harvey,  14  Mont.  20S,  36 
Pac.  38,  27  L.  R.  A.  101,  43  Am.  St.  Rep.  625 ; 
Jones  v.  Jones,  39  S.  C.  247,  17  S.  E.  5S7,  802. 
But  a  different  rule  has  been  applied  where 
different  executors  are  appointed  by  the  will 
in  different  states,  and  they  are  held  to  be  in 
privity  with  each  other,  and  a  judgment 
against  those  in  one  state  is  evidence  against 
those  in  another;  Hill  v.  Tucker,  13  How. 
(U.  S.)  45S,  14  L.  Ed.  223 ;  Goodall  v.  Tucker, 
.  13  How.  (U.  S.)  469,  14  L.  Ed.  227. 

When  any  surplus  remains  in  the  hands  of 
a  foreign  or  ancillary  appointee  after  the  dis- 
charge of  all  debts  in  that  jurisdiction,,  it  is 
usually,  as  a  matter  of  comity,  ordered  to  be 
paid  over  to  the  domiciliary  appointee ; 
Wright  v.  Phillips,  56  Ala.  69;  50  L.  J.  Ch. 
740;  and  in  his  hands  becomes  applicable  to 
debts,  legacies,  and  expenses;  Schoul.  Ex.  & 
Ad.  §  174.  It  is  the  policy  of  the  law  with 
respect  to  these  matters  to  encourage  the 
spirit  of  comity  in  subordination  to  the  rights 
of  local  creditors  who  are  considered  to  be 
entitled  to  the  benefit  of  assets  within  their 
own  jurisdiction,  rather  than  to  be  driven  to 
the  assertion  of  their  claims  in  a  foreign 
state  or  country;   id.;  but  see  Lex  Fori. 

As  a  general  rule  it  is  the  duty  of  the  prin- 
cipal personal  representative  to  collect  and 
make  available  to  the  estate  all  such  assets 
as  are  available  to  him  consistently  with  for- 
eign law ;  4  M.  &  W.  171 ;  1  Cr.  &  J.  157 ;  even 
to  the  extent  of  seeing  that  foreign  letters 
are  taken  out  for  the  collection  of  foreign  as- 
sets; or  of  collecting  and  realizing  upon 
property  and  debts  so  far  as  it  may  be  done 
by  him,  without  resort  to  a  foreign  jurisdic- 
tion; Trecothick  v.  Austin,  4  Mas.  33,  Fed. 
Cas.  No.  14,164 ;  In  re  Butler,  38  N.  Y.  397 ; 
Merrill  v.  Ins.  Co.,  103  Mass.  245,  4  Am.  Rep. 
548;  but  the  domestic  representative  is  not 
to  be  held  in  this  respect  to  too  onerous  a 
responsibility  with  respect  to  foreign  prop- 
erty which  he  cannot  realize  by  virtue  of  his 
appointment.  See  Sto.  Confl.  L.  §  514  a; 
Schoul.  Ex.  &  Ad.  §  175.  It  is  the  policy  of 
the  courts  to  sustain,  if  possible,  even  irreg- 
ular acts  of  executors  or  administrators 
done  in  good  faith  and  without  detriment  of 
the  estate;  Duffy  v.  McHale  (R.  I.)  85  Atl.  36. 

There  is  some  difference  of  opinion  as  to 
whether  a  voluntary  surrender  of  assets  to 
the  domiciliary  representative  protects  the 
debtor  against  claims  made  by  virtue  of  an 
administration  within  his  own  jurisdiction. 
The  United  States  supreme  court,  supported 
by  the  current  of  American  authority,  main- 
rains  that,  as  between  the  states  such  pay- 
ment or  delivery  of  assets  is  sufficient  to  dis- 


charge the  local  debtor  in  the  absence  of  lo- 
cal administration ;  U.  S.  v.  Cox,  18  How. 
(U.  S.)  104,  15  L.  Ed.  299 ;  Wilkins  v.  Ellett, 
9  Wall.  (U.  S.)  740,  19  L.  Ed.  5S6 ;  Wilkins 
v.  Ellett,  10S  U.  S.  256,  2  Sup.  Ct.  641,  27  L. 
Ed.  718;  Hatchett  v.  Berney,  65  Ala.  39; 
Ramsay  v.  Ramsay,  97  111.  App.  270;  In  re 
Williams'  Estate,  130  la.  553,  107  N.  W.  608; 
Maas  v.  Bank,  176  N.  Y.  377,  68  N.  E.  658,  9S 
Am.  St.  Rep.  6S9 ;  Dexter  v.  Berge,  76  Minn. 
216,  78  N.  W.  1111;  Gardiner  v.  Thorndike, 
183  Mass.  82,  66  N.  E.  633;  Maas  v.  Bank, 
176  N.  Y.  377,  6S  N.  E.  65S,  98  Am.  St.  Rep. 
6S9  (where  it  was  also  held  that  failure  to 
inquire  whether  a  resident  administrator  had 
been  appointed  was  negligence  sufficient  to 
charge  a  bank  making  payment  with  the 
knowledge  which  inquiry  would  have  furnish- 
ed). But,  as  a  rule,  the  power  of  the  execu- 
tor or  administrator  is  confined  to  the  state 
appointing ;  In  re  Crawford's  Estate,  6S  Ohio 
St.  58,  67  N.  E.  156,  96  Am.  St.  Rep.  648.  The 
domiciliary  administrator  will  sometimes  be 
recognized  ex  comitate  by  courts  of  another 
state;  State  v.  Fulton  (Tenn.)  49  S.  W.  297. 
The  English  doctrine  is  otherwise;  Whart. 
Confl.  L.  626 ;  Sto.  Confl.  L,  515  a.  See  Dicey, 
Confl.  L.  ch,  X.  (c),  ch.  XVII.  (B),  with 
Moore's  American  notes.  So,  by  agreement 
of  the  parties,  he  was  allowed  to  become  a 
party  in  his  representative  capacity;  Ellis 
v.  Ins.  Co.,  100  Tenn.  177,  43  S.  W.  766; 
though  it  was  held  that  he  should  not  sue  in 
New  York  for  the  wrongful  death  of  his  in- 
testate without  taking  out  ancillary  letters; 
Dodge  v.  North  Hudson,  188  Fed.  489. 

Executors.  An  executor  is,  as  above  de- 
fined, a  person  charged  with  the  administra- 
tion of  the  estate  of  one  who  leaves  a  will. 

Lord  Hardwicke,  in  3  Atk.  301,  says,  "The  proper 
term  in  the  civil  law,  as  to  goods,  is  hceres  testa- 
mentarius;  and  executor  is  a  barbarous  term,  un- 
known to  that  law."  And  again,  "What  we  call 
executor  and  residuary  legatee  is,  in  the  civil  law, 
universal  heir."    Id.  300. 

The  word  executor,  taken  in  its  broadest  sense, 
has  three  acceptations.  1.  Executor  a  lege  consti- 
tutus.  He  is  the  ordinary  of  the  diocese.  2.  Execu- 
tor ab  episcopo  constitutus  or  executor  dativus; 
and  that  is  he  who  is  called  an  administrator  to  an 
intestate.  3.  Executor  a  testatore  constitutus,  or 
executor  testamentarius ;  and  that  is  he  who  is  usu- 
ally meant  when  the  term  executor  is  used.  1  Wms. 
Ex.  185.     See  Ordinary. 

The  power  of  an  executor  under  modern 
probate  law  is  derived  not  so  much  from  the 
will  of  the  testator  as  from  the  appointment 
of  the  court  and  the  powers  conferred  upon  it 
by  law;  Lamb  v.  Helm,  56  Mo.  420.  While 
he  is  a  trustee  in  the  broadest  sense,  he  is  not 
such  in  the  general  acceptation  of  the  term ; 
In  re  Hibbler,  78  N.  J.  Eq.  217,  78  Atl.  188, 
affirmed  In  re  Hibbler's  Estate,  79  N.  J.  Eq. 
230,  81  Atl.  1133. 

If  the  executor  be  legally  competent  and 
accepts  the  trust,  it  is  the  duty  of  the  pro- 
bate court  to  grant  letters  testamentary  to 
him ;  Clark  v.  Patterson,  214  111.  533,  73  N.  E. 
806,  105  Am.  St  Rep.  127,  where  it  was  said 


EXECUTORS  AND  ADMINISTRATORS  1141  EXECUTORS  AND  ADMINISTRATORS 


that  legally  competent  meant  of  legal  age, 
sound  mind  and  memory  and  not  convicted  of 
crime. 

One  should  not  be  appointed  an  executor 
pending  a  suit  by  him  on  a  claim  against  tin- 
estate;  Cogswell  v.  Hall,  1S3  Mass.  575,  67  N. 
E.  638.  The  renunciation  of  an  executor  may 
be  by  oral  statement  in  open  court;  In  re 
Baldwin's  Will,  27  App.  Div.  506,  50  X.  V. 
Supp.  872.  Where  one  declines  the  appoint- 
ment and  another  person  is  appointed,  the 
former  has  no  legal  right  thereafter ;  Briggs 
v.  Probate  Court,  23  R.  I.  125,  50  Atl.  335. 

A  general  executor  is  one  who  is  appointed 
to  administer  the  whole  estate,  without  any 
limit  of  time  or  place,  or  of  the  subject-mat- 
ter. 

A  rightful  executor  is  one  lawfully  appoint- 
ed by  the  testator,  by  his  will.  Deriving  hia 
authority  from  the  will,  he  may  do  most  acts 
before  he  obtains  letters  testamentary;  but 
he  must  be  possessed  of  them  before  he  can 
declare  in  an  action  brought  by  him  as  such ; 
1  P.  Wms.  768 ;   Wms.  Ex.  173. 

An  instituted  executor  is  one  who  is  ap- 
pointed by  the  testator  without  any  condition, 
and  who  has  the  first  right  of  acting  when 
there  are  substituted  executors. 

A  substituted  executor  is  a  person  appoint- 
ed executor  if  another  person  who  has  been 
appointed  refuses  to  act. 

An  example  will  show  the  difference  between  an 
instituted  and  a  substituted  executor.  Suppose  a 
man  makes  his  son  his  executor,  but  it  he  will  not 
act  he  appoints  his  brother,  and  if  neither  will  act, 
his  cousin:  here  the  son  is  the  instituted  executor 
in  the  first  degree,  the  brother  is  said  to  be  substi- 
tuted in  the  second  degree,  the  cousin  in  the  third 
degree,  and  so  on.  See  Swinb.  Wills,  pt.  4,  s.  19, 
pi.    1. 

An  executor  de  son  tort  is  one  who,  with- 
out lawful  authority,  undertakes  to  act  as 
executor  of  a  person  deceased.  See  E.xecutor 
de  son  Tort. 

A  special  executor  is  one  who  is  appointed 
or  constituted  to  administer  either  a  part  of 
the  estate,  or  the  whole  for  a  limited  time,  or 
only  in  a  particular  place. 

An  executor  to  the  tenor  is  a  person  who 
is  not  directly  appointed  by  the  .will  an  execu- 
tor, but  who  is  charged  with  the  duties  which 
appertain  to  one:  as,  "I  appoint  A  B  to  dis- 
charge all  lawful  demands  against  my  will;" 
3  Thill.  Eccl.  116;  1  Eccl.  374;  Swinb.  Wills 
247;  Wentw.  Ex.  pt.  4,  s.  4,  p.  230;  [1S92] 
Prob.  227,  380;  66  Law  T.  N.  S.  3S2. 

Qualification.  Generally  speaking,  all  per- 
sons who  are  capable  of  making  wills,  and 
many  others  besides,  may  he  executors ;  2 
Bla.  Com.  503.  The  king  may  be  an  executor. 
So  may  a  corporation  sole.  So  may  a  corpo- 
ration aggregate;  Toller,  Exec.  30;  Schoul. 
Ex.  &  Ad.  32.  So  may  an  alien,  if  he  be  not 
an  alien  enemy  residing  abroad  or  unlawfully 
continuing  in  the  country.  See  McGregor  v. 
McGregor,  3  Abb.  Dec.  (N.  Y.)  92.  So  may 
married  women  and  infants ;  and  even  in- 
fants unborn,  or  en  ventre  sa  mere,  may  be 


executors ;   1  Dane,  Abr.  c.  29  a  2,  §  3  ;    Swift 
v.  Duffield,  5  s.  &  R.  (Pa.)  40.     But  in  Ei 
land  an  infant  cannot  act  solely  as  execm  t 

until  his  lull  age  of  twenty-*  Mean- 

while, his  guardian  or  some  other  person  a 
fur  him  as  administrator  cum  test,  an 
Christopher    v.    Cox,   25   Miss.    162 ;     Schoul. 
Dom.  Bel.  §  416;    Administration,     it  w 
held  that  a  married  woman  cannol  be  execu- 
trix without  her  husband's  consent;    Appeal 
of  Stewart,  50  Me.  300;  English's  Ex'r  v.  Mc- 
Nair's  Adm'rs,  .'>4  Ala.  40;    and  that  a   man 
by  marrying  an  executrix  be  in 

her  right,  and  was  liable  to  account  as  such; 
2  Atk.  212 ;  Lindsay  v.  Lindsay's  Adm'rs,  1 
Des.  (S.  C.)  150. 

Persons  attainted,  outlaws,  insolvents,  and 
persons  of  bad  moral  character  may  be  quali- 
fied as  executors,  because  they  act  en  autre 
droit  and  it  was  the  choice  of  the  testator  to 
appoint  them  ;  6  Q.  B.  57;  Berry  v.  Hamil- 
ton, 12  B.  Mon.  (Ky.)  191,  54  Am.  Dec.  515  : 
Sill  v.  McKnight,  7  W.  &  S.  (Pa.)  214:  3 
Salk.  162.  It  is  the  duty  of  the  court,  when 
a  will  has  been  proven,  to  grant  letters  tes- 
tamentary to  the  person  named  in  it  upon 
application,  if  he  is  not  disqualified  by  stat- 
ute; Holladay  v.  Holla. lay.  16  Or.  147,  L9 
Pac.  81.  Poverty  or  insolvency  is  no  ground 
for  refusing  to  qualify  an  executor;  but  an 
insolvent  executor  may  lie  compelled  to  give 
security;  Longberger's  Estate,  148  Pa.  56 
114  Atl.  120.  In  some  states  a  bond  is  requir- 
ed from  executors,  similar  to  or  identical 
with  that  required  from  administrators.  The 
testator  may,  by  express  direction,  exempt 
from  the  obligation  of  giving  a  bond  with 
sureties  any  trustees  whom  he  appoints  or 
directs  to  be  appointed,  but  not  his  executor, 
unless  permitted  to  do  so  by  state  statute; 
because  the  creditors  of  the  estate  must  look 
to  the  funds  in  the  executor's  hands. 

Idiots  and  lunatics  cannot  be  executors; 
and  an  executor  who  becomes  non  compos 
may  be  removed;  1  Salk.  36.  In  Massachu- 
setts, when  any  executor  shall  become  insane, 
or  otherwise  incapable  of  discharging  his 
trust,  or  evidently  unsuitable  therefor,  the 
judge  of  probate  may  remove  him  :  Thayer  v. 
Homer,  11  Mete.  (Mass.)  104.  A  drunkard 
may  perform  the  office  of  executor;  Berry  v. 
Hamilton,  12  B.  Monr.  (Ky.)  191,  54  Am.  D 
515;  Sill  v.  McKnight,  7  W.  &  S.  (Pa.)  244; 
but  in  some  states,  as  Massachusetts  and 
Pennsylvania,  there  are  statutes  providing 
for  his  removal. 

Appoiutmoit.  Executors  can  be  appoint 
only  by  will  or  codicil;  but  the  word  "exe  u- 
tor"  need  not  be  used.  He  may  be  appointed 
and  designated,  by  committing  to  his  char| 
those  duties  which  it  is  the  province  of  an 
executor  to  perform;  3  PhilL  Eccl.  118;  My- 
ers v.  Daviess,  10  B.  Monr.  394;  Ex  parte 
McDonnell.  2  Bradf.  Surr.  (N.  Y.)  32;  State 
v.  Watson,  2  Speers  (S.  C.)  97;  Carpenter  v. 
Cameron,  7  Watts  (Pa.)  51.    Even  a  direction 


EXECUTORS  AND  ADMINISTRATORS     1142     EXECUTORS  AND  ADMINISTRATORS 


to  keep  accounts  will,  in  the  absence  of  any 
thing  to  the  contrary,  constitute  the  person 
addressed  an  executor.  A  testator  may  pro- 
ject his  power  of  appointment  into  the  fu- 
ture and  exercise  it  after  death  through  an 
agent  pointed  out  by  name  or  by  his  office; 
Bishop  v.  Bishop,  56  Conn.  208,  14  Atl.  808. 

The  appointment  of  an  executor  may  be 
absolute,  qualified,  or  conditional.  It  is  abso- 
lute when  he  is  constituted  certainly,  imme- 
diately, and  without,  any  restriction  in  re- 
gard to  the  testator's  effects  or  limitation  in 
point  of  time;  Toller,  Ex.  36.  It  may  be 
qualified  as  to  the  time  or  place  wherein,  or 
the  subject-matters  whereon,  the  office  is  to 
be  exercised ;  1  Will.  Ex.  204.  Thus,  a  man 
may  be  appointed  executor,  and  his  term 
made  to  begin  or  end  with  the  marriage  of 
testator's  daughter ;  or  his  authority  may  be 
limited  to  the  state:  or  to  one  class  of  prop- 
erty, as  if  A  be  made  executor  of  goods  and 
chattels  in  possession,  and  B  of  choses  in  ac- 
tion ;  Swinb.  Wills,  pt.  4,  s.  17,  pi.  4 ;  3  Phill. 
Eccl.  424.  Still,  as  to  creditors,  three  limit- 
ed executors  all  act  as  one  executor,  and 
may  be  sued  as  one;  Cro.  Car.  293.  Finally, 
an  executor  may  be  appointed  conditionally, 
and  the  condition  may  be  precedent  or  sub- 
sequent. Such  is  the  case  when  A  is  ap- 
pointed in  case  B  shall  resign.  Godolphin, 
Orph.  Leg.  pt.  2,  c.  2,  §  1.  As  to  appointment, 
see  Manning  v.  Leighton,  65  Vt.  84,  26  Atl. 
258,  24  L.  R.  A.  684 ;    39  Sol.  J.  228,  244. 

Removal.  An  executor  who  fails  to  keep 
proper  accounts  or  to  render  any  account  for 
a  long  period,  who  retains  the  trust  funds 
mixed  with  his  own  and  who  makes  improp- 
er investments,  should  be  dismissed ;  Simon's 
Estate,  155  Pa.  215,  26  Atl.  424 ;  but  failure  to 
account  is  not  compulsory  ground  of  remov- 
al;  Cosby  v.  Weaver,  107  Ga.  761,  33  S.  E. 
656;  and  the  mere  delay  of  an  executor  to 
convert  real  estate  into  personalty  when  the 
same  has  increased  in  value,  is  not  such  mis- 
conduct as  to  warrant  his  removal ;  Wilcox 
v.  Quinby,  65  Hun  621,  20  N.  Y.  Supp.  5.  He 
may  be  removed,  however,  where  he  has  any 
conflicting  personal  interest ;  Putney  v. 
Fletcher,  148  Mass.  247,  19  N.  E.  370. 

Assignment.  An  executor  cannot  assign 
his  office.  In  England,  if  he  dies  having 
proved  the  will,  his  own  executor  becomes 
also  the  original  testator's  executor.  But  if 
he  dies  intestate,  an  administrator  de  bonis 
non  of  the  first  testator  succeeds  to  the  ex- 
ecutorship. And  an  administrator  de  bonis 
non  succeeds  to  the  executorship  in  both  these 
events,  in  the  United  States  generally,  wher- 
ever a  trust  is  annexed  to  the  office  of  execu- 
tor; Hendren  v.  Colgin,  4  Munf.  (Va.)  231; 
Patterson  v.  High,  43  N.  C.  52;  Vance  v. 
Vance,  17  Me.  204 ;  In  re  Van  Wyck,  1  Barb. 
Ch.  (N.  Y.)  565;  Lott  v.  Meaeham,  4  Fla. 
144. 

Acceptance.  The  appointee  may  accept  or 
refuse  the  office  of  executor;    3  Phill.  Eccl. 


577 ;  Stebbins  v.  Lathrop,  4  Pick.  (Mass.)  33 ; 
Williams  v.  Cushing,  34  Me.  370;  Leavitt  v. 
Leavitt,  65  N.  H.  102,  18  Atl.  920.  His  ac- 
ceptance may  be  implied  by  acts  of  authority 
over  the  property  which  evince  a  purpose  of 
accepting,  and  by  any  acts  which  would  make 
him  an  executor  de  son  tort,  which  see.  So 
his  refusal  may  be  inferred  from  his  keeping 
aloof  from  all  management  of  the  estate ; 
Van  Home  v.  Fonda,  5  Johns.  Ch.  (N.  Y.)  3SS ; 
Ayres  v.  Weed,  16  Conn.  291 ;  Marr  v.  Peay, 
6  X.  C.  85,  5  Am.  Dec.  521 ;  Ralston's  Estate, 
158  Pa.  645,  28  Atl.  139.  But  he  cannot  be 
compelled  to  accept  and  qualify  or  renounce 
in  some  formal  manner ;  Cable  v.  Cable,  76 
la.  163,  40  N.  W.  700.  If  one  of  two  or  more 
appointees  accepts,  and-  the  other  declines 
or  dies,  or  becomes  insane,  he  becomes  sole 
executor ;  Croft  v.  Steele,  6  Watts  (Pa.)  373. 
An  administrator  de  bonis  non  cannot  be  join- 
ed with  an  executor. 

Acts  before  probate.  The  will  itself  is  the 
sole  source  of  an  executor's  title.  Probate  is 
the  evidence  of  that  title.  See  Wolfe  v.  Un- 
derwood, 97  Ala.  375,  12  South.  234 ;  Clapp  v. 
Stoughton,  10  Pick.  (Mass.)  463;  Shirley  v. 
Healds,  34  N.  H.  407.  Before  probate,  an 
executor  may  do  nearly  all  the  acts  which  he 
can  do  after.  He  can  receive  payments,  dis- 
charge debts,  collect  and  recover  assets,  sell 
bank-stock,  give  or  receive  notice  of  dishonor, 
initiate  or  maintain  proceedings  in  bank- 
ruptcy, sell  or  give  away  goods  and  chattels, 
and  pay  legacies.  And  when  he  has  acted 
before  probate  he  may  be  sued  before  pro- 
bate ;  6  Term  295  ;  Rand  v.  Hubbard,  4  Mete. 
(Mass.)  252.  He  may  commence,  but  he  can- 
not maintain,  suits  before  probate,  except 
such  suits  as  are  founded  on  his  actual  pos- 
session ;  3  C.  &  P.  123 ;  Hutchins  v.  Adams, 
3  Greenl.  (Me.)  174 ;  Strong  v.  Perkins,  3  N. 
H.  517;  2  Atk.  285.  So  in  some  states  he 
cannot  sell  land  without  letters  testamenta- 
ry ;  Kerr  v.  Moon,  9  Wheat.  (U.  S.)  565,  6  L. 
Ed.  161;  or  transfer  a  mortgage;  Cutter  v. 
Davenport,  1  Pick.  (Mass.)  81,  11  Am.  Dec. 
149 ;  or  remain  in  his  own  state  and  sue  by 
attorney  elsewhere ;  Hutchins  v.  Bank,  12 
Mete.  (Mass.)  423 ;  or  indorse  a  note  so  as  to 
be  sued,  in  some  states;  Stearns  v.  Burn- 
ham,  5  Greenl.  (Me.)  261,  17  Am.  Dec.  228; 
Thompson  v.  Wilson,  2  N.  H.  291.  And  see 
Harper  v.  Butler,  2  Pet.  (U.  S.)  239,  7  D.  Ed 
410;  Byles,  Bills  40;  Story,  Pr.  Notes  304; 
Story,  Bills  250;  Horn  v.  Johnson,  87  Ga. 
44S,  13  S.  E.  633. 

Co-executors.  Co-executors  are  regarded 
in  law  as  one  individual ;  and  hence,  in  gen- 
eral, the  acts  of  one  are  the  acts  of  all ;  Com. 
Dig.  Administration  (B,  12)  ;  Gates  v.  Whet- 
stone, 8  S.  C.  244,  28  Am.  Rep.  284;  Arm- 
strong v.  O'Brien,  83  Tex.  635,  19  S.  W.  268 ; 
Viele  v.  Keeler,  129  N.  Y.  190,  29  N.  E.  78. 
Hence  the  assent  of  one  executor  to  a  legacj 
is  sufficient,  and  the  sale  or  gift  of  one  is  the 
sale  or  gift  of  all.     So  a  payment  by  or  to 


EXECUTORS  AND  ADMINISTRATORS  1143  EXECUTORS  AND  ADMINISTRATORS 


one  is  a  payment  by  or  to  all ;  Herald  v.  Har- 
per, 8  Blackf.  (Ind.)  170;  Hoke's  Ex'rs  v. 
Fleming,  32  N.  C.  263 ;  Adair  v.  Brimmer,  74 
N.  Y.  539 ;  a  release  by  one  binds  all ;  Dev- 
ling  v.  Little,  26  Pa.  502.  But  eaeb  is  liable 
only  for  tbe  assets  which  have  come  into  bis 
own  hands;  Douglass  v.  Satterlee,  11  Johns. 
(N.  Y.)  21.  So  he  alone  who  is  guilty  of  tort 
or  negligence  is  answerable  for  it,  unless  bis 
co-executor  has  connived  at  tbe  act  or  helped 
him  commit  it;  Estate  of  Sanderson,  74  CaL 
199,  15  Pac.  753.  An  executor  is  not  liable 
for  a  devastavit  of  his  co-executor;  Ander- 
son v.  Earle,  9  S.  C.  460.  A  power  to  sell 
land,  conferred  by  will  upon  several  execu- 
tors, must  be  executed  by  all  wbo  proved  the 
will ;  Wasson  v.  King,  19  N.  C.  262.  But  if 
only  one  executor  consents  to  act,  his  sale 
under  a  power  in  the  will  would  be  good,  and 
such  refusal  of  tbe  others  may  be  in  pais; 
Cro.  Eliz.  SO;  Ross  v.  Clore,  3  Dana  (Ky.) 
195;  Herrick  v.  Carpenter,  92  Mich.  440,  52 
N.  W.  747.  If  tbe  will  gives  no  direction  to 
the  executors  to  sell,  but  leaves  the  sale  to 
the  discretion  of  tbe  executors,  all  must  join. 
But  see  less  strict  rules  in  Miller  v.  Meetch, 
8  Pa.  417;  Meakings  v.  Cromwell,  2  Sandf. 
(N.  Y.)  512;  Taylor  v.  Morris,  1  N.  Y.  341. 
Where  all  the  executors  must  unite  to  make 
a  valid  conveyance,  no  valid  contract  to  con- 
vey can  be  made  by  a  part  of  them ;  Crowley 
v.  Hicks,  72  Wis.  539,  40  N.  W.  151.  One 
executor  cannot  bind  his  co-executors  by  a 
confession  of  judgment  without  tbeir  con- 
sent; Karl  v.  Black's  Ex'rs,  2  Pittsb.  (Pa.) 
19.  On  the  death  of  one  or  more  of  several 
joint  executors,  their  rights  and  powers  sur- 
vive to  the  survivor ;  Bac.  Abr.  Executor  (D) ; 
Shepp.  Touchst.  4S4. 

Administrator.  The  appointment  of  an 
administrator  is  required  in  the  case  of  one 
who  dies  intestate. 

The  appointment  of  the  administrator  must 
be  lawfully  made  with  his  consent,  and  by  an 
officer  having  jurisdiction.  If  an  improper 
administrator  be  appointed,  his  acts  are  not 
void  ab  initio,  but  are  good,  usually,  until  his 
power  is  rescinded  by  authority.  But  they 
are  void  if  a  will  bad  been  made,  and  a  com- 
petent executor  appointed  under  it;  Griifith 
v.  Frazier,  8  Cra.  (U.  S.)  23,  3  L.  Ed.  471;  1 
Dane,  Abr.  556-561;  Beers  v.  Shannon,  73 
N.  Y.  292.  But,  in  general,  anybody  may  be 
administrator  wbo  can  make  a  contract.  An 
infant  cannot ;  McGooch  v.  McGooch,  4  Mass. 
348;  a  feme  covert  may  at  common  law  with 
her  husband's  permission;  4  Bac.  Abr.  67; 
In  re  Gyger's  Estate,  65  Pa.  311;  English's 
Ex'r  v.  McNair's  Adm'rs,  34  Ala.  40.  Im- 
provident persons,  drunkards,  gamblers,  and 
the  like  are  in  some  states  disqualified  by 
statute;    McMahon  v.  Harrison,  (i  N.  Y.  443. 

Failure  to  apply  for  administration  within 
the  time  prescribed  is  a  waiver  by  tbe  party 
entitled  to  it  under  tbe  statute;  In  re 
Sprague's  Estate.  125  Mich.  357,  S4  N.  W. 
293;    and  the  right  of  a  creditor  to  be  ap- 


pointed administrator  as  "particular  cred- 
itor" is  waived  by  bis  signing  a  petition  fur 
the  appointment  of  another  person;  In  re 
Sullivan's  Estate,  25  Wash.  43 

The  formalities  and  requisito  rd  to 

valid  appointments  a  as  to   a 

defective  proceedings,  etc.,  are  widely  vari- 
ous in  tbe  different  states,    if  letter.-  appear 
to   have  been  unduly   granted,  or  to  an   un- 
faithful person,  they  will  be  revoked : 
v.  Dial,  12  Tex.  100;    Jeroms  v.  Jerom 
Barb.   (X.   T.)  24;     Many  v.   .Mare;.,   •;   Mete. 
(Mass.)  370;   as  they  may  be  where  it  ap 
that  the  estate  has  been  wasted  oi   misman- 
aged;   Taylor  v.  Taylor,  154  111.  App.  - 
The  personal  property  of  a  decedi  at 
propriated  to  the  payment  of  his  debts,  so  far 
as  required,  and  must  be  first  resorted  to  by 
creditors.     And.  by  statutes,  courts  may  grant 
an.  administrator  power  to  sell,  lease,  or  inort- 
gage  land,   when  the  personal   estate  of  tbe 
deceased  is  not  sufficient  to  pay  bis  debts; 
Ferguson   v.    Broome,    1    Bradf.    (N.    Y.)    10; 
Farrington  v.  King,  1  Bradf.  (N.  Y.i  1^_' ;  Ren- 
wick  v.  Renwick,  1  Bradf.  (X.  Y..>  i'.:i  ;  Mathe- 
son's  Heirs  v.  Hearin,  L".»  Ala.  210;   In  i 
tate  of  Godfrey,  4  Mich.  30S ;    Weed  v.  Ed- 
monds, 4  Ind.  46S;    McCoy  v.  Morrow,  18  111. 
519,  68  Am.  Dec.  57S.     The  court  may  direct 
lands  to  be  sold  in  order  to  pay  taxes  levied 
against  decedent's  property ;    Sales   v.    I 
grove  (Ky.)  25  S.  W.  594. 

Persons  holding  certain  relations  to  the  in- 
testate are  considered  as  entitled  to  an  ap- 
pointment to  administer  the  estate  in  estab- 
lished order  of  precedence;  Bradley  v.  Brad- 
ley, 3  Redf.  (X.  Y.)  oil'. 

Order  of  appointment. — First  in  order  of 
appointment. — The  husband  has  bis  wife's 
personal  property,  and  takes  out  administra- 
tion upon  her  estate.  But  in  some  states  it 
is  not  granted  to  him  unless  he  is  to  receive 
the  property  eventually.  So  the  widow  can 
ordinarily  claim  sole  administration,  though 
in  tbe  discretion  of  the  Judge  it  may 
fused  her,  or  she  may  be  joined  with  anoth- 
er; 2  Ida.  Com.  504;  steams  v.  Fiske  ix 
Pick.  (.Mass.i  26;  Edelen  v.  Edelen,  i<>  Md. 
52;  Jones  v.  Bitter's  Adm'r,  56  Ala.  270; 
Bcanlon's  Estate,  2  Pa.  Dist  B.  til1.  The 
widow  is  entitled  to  preference  though  she 
was  not  Living  with  her  husband  at  the  time; 
Boss'  Estate,  13  Pa.  Co.  ft.  R.  601. 

,ul  in  order  of  appointment  are  the 
next  of  kin.  Kinship  is  usually  computed  by 
the  civil-law  rule.  The  English  order,  which 
is  adopted  in  some  states,  is.  rirst.  husband 
or  wife:  second,  sons  or  daughters;  third, 
grandsons  or  granddaughters;  fourth,  great- 
grandsons  or  great-granddaughters;  fifth, 
father  or  mother:  sixth,  brothers  or  sisters; 
seventh,  grandparents;  eighth,  uncles,  aunts, 
nephews,  nieces,  etc.;  1  P.  Will.  41;  li  Add. 
Eccl.  352;  Succession  of  Sloane,  12  La.  Ann. 
610;  2  Kent  514;  Davis  v.  Swearingen,  56 
Ala.  539. 

In  Xew  York  the  order  is,  the  widow ;  tbe 


EXECUTORS  AND  ADMINISTRATORS  1144  EXECUTORS  AND  ADMINISTRATORS 


children;  the  father;  the  brothers;  the  sis- 
ters ;  the  grandchildren ;  any  distributee  be- 
ing next  of  kin ;  McCosker  v.  Golden,  1 
Bradf.  (N.  T.)  64;  Peters  v.  Public  Adm'r, 
1  Bradf.  (N.  Y.)  200;  In  re  Com'rs  of  Emi- 
gration; 1  Bradf.  (N.  Y.)  259. 

When  two  or  three  are  in  the  same  degree, 
the  probate  judge  may  decide  between  them ; 
and  in  England  he  is  usually  guided  by  the 
wishes  of  the  majority  of  those  interested. 
This  discretion,  however,  is  controlled  by  cer- 
tain rules  of  priority  as  to  persons  of  equal 
grades,  which  custom  or  statute  has  made. 
Males  are  generally  preferred  to  females, 
though  from  no  superior  right.  Elder  sons 
are  preferred  to  younger,  usually,  and  even 
when  no  doctrine  of  primogeniture  subsists. 
So  solvent  persons  to  insolvent,  though  the 
latter  may  administer.  So  business  men  to 
others.  So  unmarried  to  married  women. 
So  relations  of  the  whole  blood  to  those  of 
the  half  blood.  So  distributees  to  all  other 
kinsmen.  As  between  kindred  of  equal  de- 
gree a  son  will  be  preferred  to  a  daughter ; 
In  re  Hill's  Estate,  55  N.  J.  Eq.  764,  37  Atl. 
952 ;  and  although  generally  men  of  the  same 
degree  are  preferred  to  women,  a  niece  is 
preferred  to  a  grand-nephew,  being  one  de- 
gree nearer;  In  re  Hawley's  Estate,  37  Misc. 
667,  76  N.  Y.  Supp.  461.  The  next  of  kin  hav- 
ing the  right  of  administration  and  not  de- 
siring to  exercise  it  may  nominate  another  in 
his  stead,  who  shall  be  nominated  if  fit  and 
suitable  under  the  same  rules  which  would 
be  applied  to  the  next  of  kin  himself;  In  re 
Wooten's  Estate,  114  Tenn.  289,  85  S.  W. 
1105 ;  a  non-resident  may  be  an  administra- 
tor; Fulgham  v.  Fulgham,  119  Ala.  403,  24 
South.  851 ;  Jones  v.  Smith,  120  Ga.  642,  48 
S.  E.  134. 

The  appointment  in  all  cases  is  voidable 
when  the  court  did  not  give  a  chance  to  all 
parties  to  come  in  and  claim  it. 

Third  in  order  of  appointment. — Creditors 
(and,  ordinarily,  first  the  largest  one)  have 
the  next  right;  67  Law  T.  (N.  S.)  503.  A 
creditor  has  no  right  of  administration  if 
there  are  next  of  kin ;  In  re  Barr's  Estate,  3S 
Misc.  355,  77  N.  Y.  Supp.  935 ;  but  if  there 
be  no  widow  and  next  of  kin,  a  creditor  is 
entitled  to  administration  ;  Stebbins  v.  Palm- 
er, 1  Pick.  (Mass.)  71,  11  Am.  Dec.  146.  To 
prevent  fraud,  a  creditor  may  be  appointed 
when  the  appointee  of  tbe  two  preceding  class- 
es does  not  act  within  a  reasonable  time.  A 
creditor  may  make  oath  of  his  account  to 
prove  his  debt,  but  no  rule  establishes  the 
size  of  the  debt  necessary  to  be  proved  before 
appointment ;  Arnold  v.  Sabin,  1  Cush. 
(Mass.)  525.  After  creditors,  any  suitable 
person  may  be  appointed.  Generally,  consuls 
administer  for  deceased  aliens ;  and  this  is 
sometimes  provided   by   treaties,   which  see. 

Where  all  the  persons  applying  for  appoint- 
ment are  equally  qualified,  and  competent, 
the  court  must  appoint  the  one  having  a  prior 


right  under  the  statute,  and  it  has  no  discre- 
tion ;  In  re  Nickals,  21  Nev.  462,  34  Pac.  250. 

Co-administrators,  in  general,  must  be  join- 
ed in  suing  and  in  being  sued ;  but,  like  ex- 
ecutors, the  acts  of  each,  in  the  delivery,  gift, 
sale,  payment,  possession,  or  release  of  the 
intestate's  goods,  are  the  acts  of  all,  for  they 
have  joint  power ;  Bac.  Abr.  Exec.  C.  4 ;  Com. 
Dig.  Administration  (B,  12) ;  1  Dane,  Abr. 
3S3;  Saunders'  Heirs  v.  Saunders'  Ex'rs,  2 
Litt.  (Ky.)  315;  Turner's  Ex'rs  v.  Wilkins, 
56  Ala.  173.  If  one  is  removed  by  death,  or 
otherwise,  the  whole  authority  is  vested  in 
the  survivor ;  Lewis'  Ex'rs  v.  Brooks,  6  Yerg. 
(Tenn.)  167;  Treadwell  v.  Cordis,  5  Gray 
(Mass.)  341 ;  Shippen's  Heirs  v.  Clapp,  29  Pa. 
265.  Each  is  liable  only  for  the  assets  which 
have  come  into  his  hands,  and  is  not  liable 
for  the  torts  of  others  except  when  guilty  of 
negligence  or  connivance;  2  Ves.  267;  Ap- 
peal of  Jones,  8  Watts  &  S.  (Pa.)  143,  42  Am. 
Dec.  282 ;  Hall  v.  Carter,  8  Ga.  3S8 ;  Smith's 
Ex'rs  v.  Chapman's  Ex'r,  5  Conn.  19;  Ap- 
peal of  Hengst,  24  Pa.  413;  Boudereau  v. 
Montgomery,  4  Wash.  C.  C.  186,  Fed.  Cas.  No. 
1,694 ;  Banks  v.  Wilkes,  3  Sandf.  Ch.  (N.  Y.) 
99 ;  Atcheson  v.  Robertson,  3  Rich.  Eq.  (S. 
C.)  132,  55  Am.  Dec.  634. 

A  note  payable  to  two  administrators  for 
a  debt  due  the  estate  may  be  transferred  by 
the  endorsement  of  one ;  Mackay  v.  St.  Mary's 
Church,  15  R.  I.  121,  23  Atl.  108,  2  Am.  St. 
Rep.  881 ;  a  surviving  administrator  has  full 
power  to  act  alone;  Saul  v.  Frame,  3  Tex. 
Civ.  App.  596,  22  S.  W.  984. 

Powers  and  Duties  of  an  Executor  or 
Administrator.  The  duty  of  an  administra- 
tor is  in  general  to  do  the  things  set  forth  in 
his  bond ;  and  for  this  he  is  generally  oblig- 
ed to  give  security ;  Baldwin  v.  Buford,  4 
Yerg.  (Tenn.)  20;  Colwell  v.  Alger,  5  Gray 
(Mass.)  67. 

The  duties  of  an  executor  are  the  same,  so 
far  as  concerns  the  collection  of  the  assets 
and  up  to  the  point  at  which  the  estate  is 
ready  for  distribution.  It  is  then  to  be  dis- 
posed of,  if  an  administrator,  according  to 
law,  and  if  an  executor,  pursuant  to  the  will. 
See  infra. 

An  executor  or  administrator,  coming  into 
possession  of  property  by  virtue  of  his  posi- 
tion, is  estopped,  while  in  possession,  from 
disputing  the  title  of  his  intestate  or  testa- 
tor ;    Wiseman  v.  Swain  (Tex.)  114  S.  W.  145. 

Duties.  They  may  be  thus  summarized. 
Those  of  an  executor  and  administrator  are 
alike  except  so  far  as  those  of  the  former 
spring  from  the  will. 

First.  He  must  be  responsible  for  the  bur- 
ial of  the  deceased  in  a  manner  suitable  to 
the  estate;  2  Bla.  Com.  508.  But  no  unrea- 
sonable expenses  will  be  allowed,  nor  any 
unnecessary  expenses  if  there  is  any  danger 
of  the  estate  proving  insolvent;  2  C.  &  P. 
207;  Barclay's  Estate,  2  W.  N.  C.  (Pa.)  447; 
Succession  of  Hearing,  28  La.  Ann.  149 ;  Pat- 


EXECUTORS  AND  ADMINISTRATORS     1H5     EXECUTORS  AND  ADMINISTRATORS 


terson  v.  Patterson,  59  N.  Y.  582,  17  Am. 
Rep.  384.  The  estate  and  not  the  widow  is 
liable  for  funeral  expenses ;  Compton  v. 
Lancaster  (Ky.)  114  S.  \V.  260;  but  she  may 
ordei  the  interment  on  a  scale  proportionate 
to  the  financial  condition  of  the  deceased 
and  the  estate  will  be  liable;  Wagoner  Un- 
dertaking Co.  v.  Jones,  134  Mo.  A  pp.  101,  114 
S.  W.  1049.     See  Funeral  Expenses. 

Second.  The  executor  must  prove  the  will, 
and  take  out  letters  testamentary,  and  an 
administrator  must  procure  his  letters  of 
administration;  see  supra.  In  England, 
there  are  two  ways  of  proving  a  will, — in 
common  form,  and  in  form  of  law,  or  solemn 
form.  In  the  former,  the  executor  propounds 
the  will, — i.  c.  presents  it  to  the  registrar,  in 
the  absence  of  all  other  interested  parties. 
In  the  latter,  all  parties  interested  are  sum- 
moned to  show  cause  why  probate  should 
not  be  granted. 

Third.  Ordinarily,  he  must  make  an  in- 
ventory of  personal  property  at  least,  and, 
in  some  states,  of  real  estate  also;  Griswold 
v.  Chandler.  5  N.  H.  492;  Freeman  v.  Ander- 
son, 11  Mass.  190;  Bourne  v.  Stevenson,  58 
Me.  499;  Pursel  v.  Pursel,  14  N.  J.  Eq.  514. 
This  duty  rests  on  executors  and  not  on 
adult  legatees;  Mills  v.  Smith,  G5  Hun  G19, 
19  N.  Y.   Supp.  854. 

Fourth.  lie  must  give  notice  of  his  ap- 
pointment in  the  statute  form,  and  should 
advertise  for  debts  and  credits ;  Gilbert's 
Ailm'r  v.  Little's  Adm'r,  2  Ohio  St.  15G ;  but 
the  giving  or  not  giving  it  does  not  affect 
the  statute  of  limitations,  nor  does  the  fail- 
ure to  publish,  affect  a  creditor  who  did  not 
present  his  claim :  McMillan  v.  Hayward,  94 
CaL  35T,  29  Pac.  774. 

Fifth.  He  must  collect  the  goods  and  chat- 
tels, and  the  claims  inventoried,  with  reason- 
able diligence.  And  he  is  liable  for  a  loss 
by  the  insolvency  of  a  debtor,  if  it  results 
from  his  gross  delay;  Long's  Estate,  6  'Watts 
(Pa.)  46;  Dean  v.  Rathbone's  Adm'r,  15  Ala. 
328. 

Sixth.  The  personal  effects  he  must  deal 
with  as  the  will  directs,  and  the  surplus 
must  be  turned  into  money  and  divided  as  if 
then-  were  no  will.  The  safest  method  of 
sale  is  a  public  auction. 

Seventh.  He  must  collect  the  outstanding 
claims  and  convert  property  into  money;  2 
Kent  41."  ;  P.ailey  v.  Dilworth,  10  Smedea  & 
M.  (Miss)  101,  48  Am.  Dec.  760;  1  Mylne  & 
C.  S;  Evans  v.  rglehart,  6  (Jill  &  J.  (Md.) 
171;  Bogart  v.  Van  Velsor.  4  Edw.  Oh.  (N. 
Y.)  718;  Moore  v.  Hamilton,  4  Fla.  112; 
Smyth  v.  Burns'  Adm'rs,  25  Miss.  422;  Wey- 
er  v.  Bank,  57  Ind.  198;  Roumfort  v.  McAlar- 
ney,  82  Pa.  193;  but  he  cannot  occupy  or 
lease  the  lands  of  the  estate,  or  receive 
rents  or  profits  therefrom,  as  these  descend 
to  the  heir;  Estate  of  Merkel,  131  Pa.  584, 
18  Atl.  931. 

Eighth.  He  must  keep  the  money  of  the 
estate  safely,  but  not  mixed  with  his  own, 


or  he  may  be  charged  Interest  on  it.     11«-  Ls 
also     charged     when     he     has     mil 
funds  or  let  them  lie  idle,  provided  a   want 
of  ordinary  prudence  is  proved  against  him; 
Hammond  v.  Hammond,  -  i  h.  <  Md.  i 

:;•!<;;  Sullivan  v.  Winthrop,  1  Sumo,  H 
Cas.  No. 

tees,  2  Rand.  (Va.  I 
J.  L   109;   Darrell   v.   Ed<  a,  3    i  •< 
241,  4  Am.   Dec.    613;    Appeal    <.f 
^3  Pa.  258;  In  re  Myers,   i:;i    N.   V.    i 
X.  E.  135.     When  a  debtor  is  ap] 
ecutor  of  the  creditor's  will,  equity  will  pre- 
sume that  the  debt  has  been  paid,  and  will 
i reat  it  as  an  asset  In  ti 
('row  v.  Conant,  '.»<>  Mich  247,  51  N.  W.  450, 
30  Am.  St  Rep.  427.    And  generally,  In! 
is  to  be  charged  on  all   money   re 
an    executor   and    not  applied    to    the    U 

lie;  McOaw  v.  Blewitt,  Bailey,  Bq. 
is.  0.)  98;  Arnetl  v.  Linney,  16  N.  C.  369; 
Thompson  v.  Sanders'  Heirs,  <"»  J.  J.  Marsh. 
(Ky.)  *.H:  Lloyd's  Estate,  82  Pa.  143 
Good's  Estate,  150  Pa.  301,  24  Atl.  624.  Put 
an  executor  cannot  Ik-  charged  with  i:. 
on  money  allowed  him  for  commission;  Brin- 
ton's  Estate,  10  Pa.  408;  he  Is  not  charge- 
able   with    compound    interest;    Appeal    of 

Light,   24   Pa.    180.      Where   in  have 

been    made   contrary    to    the    requirements 
of  the  will,  on  personal  security,  they  a 
the  executor's  risk,  and  he  must  answer  per- 
sonally for  any  loss;  Brewster  v.  Den 
48  X.  J.  Eq.  559,  2::  Atl.  27L    See  [NT] 
Investments. 

Ninth.  He  must  be  at  all  times  ready  to 
account  to  the  proper  authorities,  aud  must 
actually  file  an  account  at  the  end  of  the 
year  generally  prescribed  by  statute.  The 
burden  of  proving  Items  of  a  dis<  barge  in  an 
accounting  is  upon  the  accountant;  Brewster 
v.   Demarest,  48  X.  J.   Eq.  559,  •-':;  Atl.  271. 

Tenth.  He  must  pay  the  debts  and  legacies 
in  the  order  required  by  law.  There  is  OO 
universal  order  of  payment  adopted  in  the 
I  nited  States;  but  debts  of  the  la 
and  the  funeral  are  preferred  dehts  every- 
where; Bacon,  Abr.  Ex.  I..  2 :  2  Kent  416; 
I.awson's  Adm'rs  v.  Hansborough,  I'1  B.  Monr. 
(Ky.  i  117;  Move  v.  Albritton.  42  X.  I 
Burruss  v.  Fisher,  23  Miss.  228;  Johnston  v. 
Morrow,  28  X.  J.  Eq.  327;  Chapman  v. 
Barnes,  2;t  ill.  App.  184. 

Next  to  these,  as  a  general  nde.  debts  due 
the  stale  or  the  United  Males  are  pri\  . 
This   priority    of   the    United   States   only   ex- 
tends to  the  net  proceeds  of  the  property  of 
the    deceased,    and    therefore    the    neo 
expenses  of  the  administration  are  first  paid. 
The  act  of  burial  ami   its  accompaniments 
may    he   done   by    third   parties,    who    have   a 
preferred    claim    therefor,    if    reasonable;    :: 
Nev.  A:  M.  512;  8  Ad.  ft  E.  348;  U.  S. 
gleston.4  Sawy.  199,  Fed.  Caa  No.  15,027.    a 
Claim    for   costs    recovered    by    a    creditor    in 
an  action  to  establish   his  claim   is  entitled 
to  priority  over  the  debts  of  the  estate ;  In 


EXECUTORS  AND  ADMINISTRATORS  1146  EXECUTORS  AND  ADMINISTRATORS 


re  Randell's  Estate,  8  N.  Y.  Supp.  652.  If 
the  administrator  pays  debts  of  a  lower  de- 
gree first,  be  will  be  liable  out  of  his  own  es- 
tate in  ease  of  a  deficiency  of  assets ;  2  Kent 
419.  If  he  pays  decedent's  debts  from  his 
own  funds  he  is  entitled  to  repayment  from 
the  proceeds  of  lands  originally  liable  for 
such  debt;  Doty  v.  Cox  (Ky.)  22  S.  W.  321. 

A  valid  claim  against  an  estate  cannot  be 
defeated  on  the  ground  that  the  estate  had 
been  settled  before  the  claim  was  filed ;  Ury 
v.  Bush,  85  la.  608,  52  N.  W.  666. 

Powers.  The  authority  of  the  executor  or 
administrator  dates  from  the  moment  of 
death;  Com.  Dig.  Administration  (B,  10)  ; 
2  W.  Bla.  602 ;  10  Ad.  &  El.  212.  When  once 
probate  is  granted,  his  acts  are  good  until 
formally  reversed  by  the  court;  3  Term  125; 
Appeal  of  Peebles,  15  S.  &  R.  (Pa.)  39.  In 
some  states  he  has  power  over  both  real  and 
personal  estate ;  Goodwin  v.  Jones,  3  Mass. 
514,  3  Am.  Dec.  173;  Stearns  v.  Stearns,  1 
Pick.  (Mass.)  157.  In  the  majority,  he  has 
power  over  the  real  estate  only  when  ex- 
pressly empowered  by  the  will,  or  when  the 
personal  estate  is  insufficient ;  see  infra. 

His  power  is  that  of  a  mere  trustee,  who 
must  apply  the  goods  for  such  purposes  as 
are  sanctioned  by  law ;  4  Term  645 ;  9  Co. 
88;  Co.  2d  Inst.  236;  Warfield  v.  Brand's 
Adm'r,  13  Bush  (Ky.)  77;  Ferris  v.  Van 
Vechten,  9  Hun  (N.  Y.)  12.  The  personal 
representative  has  the  legal  title  to  the 
choses  in  action  of  the  deceased,  and  may 
transfer,  discharge,  or  compound  them  as  if 
he  were  the  absolute  owner;  Curry  v.  Pee- 
bles, 83  Ala.  225,  3  South.  622 ;  Kahl  v.  Schob- 
er,  35  N.  J.  Eq.  461 ;  and  having  at  common 
law  absolute  power  of  disposal  of  the  per- 
sonal effects,  he  may  compromise  any  claim ; 
Olston  v.  R.  Co.,  52  Or.  343,  96  Pac.  1095, 
97  Pac.  538,  20  L.  R.  A.  (N.  S.)  915.  But 
where  an  executor  pledged  goods  belonging 
to  an  estate,  not  holding  himself  out  to  act 
as  executor,  and  the  pledgee  having  no  no- 
tice that  he  was  such,  no  title  passed  and  the 
pledgee  was  required  to  surrender  the  goods; 
[1912]  1  Ch.  451. 

In  order  that  he  may  be  enabled  to  reduce 
them  to  possession  the  executor  or  admin- 
istrator acquires  a  property  in  the  assets  of 
the  intestate.  As  to  what  constitutes  assets, 
see  Assets,  and  for  a  definition  of  "asset," 
within  the  administration  laws,  see  Louis- 
ville &  N.  R.  Co.  v.  Herb,  125  Tenn.  408,  143 
S.  W.  1138. 

His  right  is  not  a  personal  one,  but  an  in- 
cident to  his  office ;  Weeks  v.  Gibbs,  9  Mass. 
74;  Dawes  v.  Boylston,  9  Mass.  352,  6  Am. 
Dec.  72;  Hillman  v.  Stephens,  16  N.  Y.  278. 
He  owns  all  his  intestate's  personal  proper- 
ty from  the  day  of  death,  and  for  any  cause 
of  action  accruing  after  that  day  may  sue 
in  his  own  name;  Patchen  v.  Wilson,  4  Hill 
(N.  Y.)  57;  Manwell  v.  Briggs,  17  Vt.  176; 
Cullen  v.  O'Hara,  4  Mich.  132;  Bates  v. 
Sabin,  64  Vt.  511,  24  Atl.   1013.     This  hap- 


pens by  relation  to  the  day  of  death ;  Hutch- 
ins  v.  Bank,  12  Mete.  (Mass.)  425;  7  Jur. 
492;  Shirley  v.  Healds,  34  N.  H.  407.  An 
administrator  is  a  trustee,  who  holds  the  le- 
gal property  but  not  the  equitable.  If  he  is 
a  debtor  to  the  estate,  and  denies  the  debt, 
he  may  be  removed ;  but  if  he  inventories 
it,  it  is  cancelled  by  the  giving  of  his  bond ; 
Stevens  v.  Gaylord,  11  Mass.  268. 

He  may  declare,  whenever  the  money 
when  received  will  be  assets ;  and  he  may 
sue  on  a  judgment  once  obtained,  as  if  the 
debt  were  his  own.  He  may  summon  sup- 
posed debtors  or  holders  of  his  intestate's 
property  to  account,  and  has  the  right  to  an 
investigation  in  equity.  He  may  bind  the 
estate  by  arbitration ;  Kendall  v.  Bates,  35 
Me.  357 ;  Appeal  of  Peters,  38  Pa.  239.  He 
may  assign  notes,  etc.  See  Ladd  v.  Wiggin, 
35  N.  H.  421,  69  Am.  Dec.  551;  Griswold  v. 
Clark,  28  Vt.  661;  Miller  v.  Henderson,  10 
N.  J.  Eq.  320;  Patterson  v.  Edwards,  29 
Miss.  70;  Thomas  v.  Reister,  3  Ind.  369; 
Walker  v.  Craig,  18  111.  116;  Shoenberger's 
Ex'rs  v.  Sav.  Inst,  28  Pa.  459;  Morris'  Ext 
v.  Duke's  Adm'r,  2  Patt.  &  H.  (Va.)  462. 
Nearly  all  debts  and  actions  survive  to  the 
administrator.  But  he  has  no  power  over 
the  firm's  assets,  as  to  which  his  intestate 
was  a  partner,  until  the  debts  are  paid ; 
Thomson  v.  Thomson,  1  Bradf.  (N.  Y.)  24; 
he  should  merely  refer  in  his  inventory  to 
the  intestate's  interest  in  the  partnership 
without  attempting  to  give  the  items  of 
property,  as  he  can  have  no  control  over  it 
until  the  affairs  of  the  partnership  are  set- 
tled; Loomis  v.  Armstrong,  63  Mich.  355,  29 
N.  W.  867. 

At  common  law  the  executor  or  adminis- 
trator has  no  power  over  real  estate ;  Ryder 
v.  Lyon,  85  Conn.  245,  82  Atl.  573 ;  Wilson  v. 
Hamilton,  9  S.  &  R.  (Pa.)  431;  Livingston 
v.  Bird,  2  Root  (Conn.)  438;  Egerton's 
Adm'r  v.  Conklin,  25  Wend.  (N.  Y.)  224; 
Sorrell  v.  Ham,  9  Ga.  55;  Smith  v.  Smith's 
Adm'r,  27  N.  J.  Eq.  445 ;  Hankins  v.  Kimball, 
57  Ind.  42 ;  nor  is  the  probate  even  admissi- 
'ble  as  evidence  that  the  instrument  is  a  will, 
or  is  an  execution  of  a  power  to  charge  land ; 
Wms.  Ex.  562.  By  statute,  in  some  states, 
the  probate  is  made  prima  facie  or  conclu- 
sive evidence  as  to  realty ;  Brown  v.  Wood, 
17  Mass.  68;  Fortune  v.  Buck,  23  Conn.  1; 
Darby  v.  Mayer,  10  Wheat.  (U.  S.)  470,  6 
L.  Ed.  367;  Jones  v.  McKee,  3  Pa.  498,  45 
Am.  Dec.  661 ;  Singleton  v.  Singleton,  8  B. 
Monr.  (Ky.)  340;  Lewis'  Heirs  v.  His  Execu- 
tor, 5  La.  388.  In  some  states  the  probate 
is  made  after  the  lapse  of  a  certain  time 
conclusive  as  to  realty;  Tarver  v.  Tarver,  9 
Pet.  (U.  S.)  180,  9  L.  Ed.  91;  Appeal  of 
Hegarty,  75  Pa.  512;  Bailey  v.  Bailey,  8 
Ohio,  246;  Hardy  v.  Hardy's  Heirs,  26  Ala. 
524 ;  Parker's  Ex'rs  v.  Brown's  Ex'rs,  6 
Gratt.  (Va.)  564;  Kenyon  v.  Stewart,  44  Pa. 
189.    Land  in  England  under  the  Land  Title 


EXECUTORS  AND  ADMINISTRATORS     1147    EXECUTORS  AND  ADMINISTRATORS 


and  Transfer  Act  of  1S97  goes  to  the  execu- 
tor or   administrator. 

The  administrator  has  no  interest  in  the 
decedent's  real  estate  unless  the  personal 
property  is  insufficient  to  pay  debts  and  ex- 
penses; Pratt  v.  Millard,  154  Mich.  112,  117 
N.  W.  552;  and  an  executor  has,  ordinarily, 
no  power  to  sell  land  unless  it  is  expressly 
given  or  necessarily  implied  in  the  will ;  Han- 
son v.  Hanson,  149  la.  82,  127  N.  W.  1032; 
but  one  to  whom  all  the  testator's  residuary 
estate  is  devised,  "in  trust  to  receive,  hold, 
invest  and  reinvest,"  has,  by  implication, 
power  to  sell  real  estate ;  Powell  v.  Wood, 
149  N.  C.  235,  G2  S.  E.  1071. 

The  will  may  direct  the  executor  to  sell 
lands  to  pay  debts,  but  the  money  resulting 
is  usually  held  to  be  equitable  assets  only ; 

9  B.  &  C.  4S9;  Haskell  v.  House.  3  Brev. 
(S.  C.)  242;  Speed's  Ex'r  v.  Nelson's  Ex'r, 
8  B.  Monr.  (Ky.)  499;  Smith  v.  Knoebel,  82 
111.  392 ;  Lindley  v.  O'Reilly,  50  N.  J.  L.  036, 
15  Atl.  379,  1  L.  R.  A.  79,  7  Am.  St.  Rep.  802 ; 
but  the  title  and  right  of  possession  to  the 
land  remain  in  the  heirs  until  the  sale,  and 
they  are  the  proper  parties  to  maintain 
ejectment;  Cohea  v.  Jemison,  08  Miss.  510, 

10  South.  46;  but  see  Smathers  v.  Moody,  112 
N.  C.  791,  17  S.  E.  532;  and  to  collect  the 
rents;  Appeal  of  Pennsylvania  Co.  for  In- 
surance on  Lives  &  Granting  Annuities,  168 
Pa.  431,  32  Atl.  25,  47  Am.  St.  Rep.  S93.  In 
equity,  the  testator's  intention  will  be  re- 
garded as  to  whether  the  surplus  fund,  after 
a  sale  of  the  real  estate  and  payment  of 
debts,  shall  go  to  the  heir;  1  Wins.  Ex.  555, 
Am.  note. 

Chattels  real  pass  to  the  executor  or  ad- 
ministrator, and  such  is  the  interest  of  the 
tenant  of  a  farm  from  year  to  year;  In  re 
Ring's  Estate,  132  la.  216,  109  N.  W.  710. 
But  the  wife's  chattels  real,  unless  taken  in- 
to possession  by  her  husband  during  his  life- 
time, do  not  pass  to  his  executor;  1  Wins. 
Ex.  579,  n;  In  re  Hind's  Estate,  5  Wbart. 
(Pa.)  138,  34  Am.  Dec.  542  ;  Pitts  v.  Curtis,  4 
Ala.  350;  Wade  v.  Grimes,  7  How.  (Miss.) 
425.  The  husband's  act  of  possession  must 
effect  a  complete  alteration  in  the  nature  of 
the  joint  interest  of  husband  and  wife  in 
her  chattels  real,  or  they  will  survive  to  her. 

Chattels  personal  ffo  to  the  executor;  Har- 
ris v.  Meyer,  3  Redf.  (N.  Y.)  150;  Kalil  v. 
Schober,  35  N.  J.  Eq.  461 ;  Highnote  v.  White. 
67  Ind.  596;  Beecher  v.  Buckingham,  IS 
Conn.  110,  44  Am.  Dec.  5S0.  Such  are  em- 
blements; Brooke,  Abr.  Emblements;  Bevans 
v.  Briscoe,  4  H.  &  J.  (Md.)  139;  Kesler  v. 
Cornelison,  98  N.  C.  383,  3  S.  E.  839;  but 
see  Wright  v.  Watson,  9li  Ala.  536,  11  South. 
634.  Heirlooms  and  fixtures  go  to  the  heir; 
and  as  to  what  are  fixtures,  see  Frxri  em  s, 
and  1  Wms.  Ex.  615;  2  Sm.  L.  Cas.,  9th  Am. 
ed.  1450;  Crosw.  Ex.  &  Ad.  352.  The  widows 
separate  property  and  paraphernalia  go  to 
her.  For  elaborate  collections  of  cases  on 
the  effect  of  nuptial  contracts  about  property 


upon   the  executor's   right,  see  1  Wins.    I'.x. 

•660,   Am.  note  2  :    2  note  1  ;     I 

Lead.  <  las.  65,     I  >on   I  Lom  n  trtit 

the  donee  at  once,  and  not  to  the 

Miirdock  v.  McDowell,  1  Nott  &  M 

237,  9   Am.   Dec.   (Jb4 ;    Mich. 

r;i.  ;,:»;  Jtorjkwoud  v.  Wiggin,  16  Gr 

(<•:; ;    Hatch  v.  Atkinson. 

Dec.  464. 

An  executor  may  sell  terms  fi>r  years,  and 
may  even  make  a  good  title  against  a 
legatee,  unless   the   sale   be   fraudulent 
he  may  underlet  a  term.     He  may  indorse  a 
promissory  note  or  a  bill  payable  to  tl 
tator  or  his  order;  Miller  v.  1 
&    S.    (Miss.j    (iM.      The    rule   that    i 
have  no  power  to  confess  judgment    . 
applicable  to  offers  of  judgments  to  firm  cred- 
itors, by  a  firm  coini>o.sed  of  a  surviving  mem- 
ber and  the  executor  of  a  deceased  member, 
conducting    the    interests    of    the    de< 
therein;    Columbus  Watch   Co.  v.  Hodcnpyl, 
01  Hun  557,   10  N.   Y.   Supp.  337;    but  they 
may  compromise  claims;    BacoD  v.  Crandon, 
15  Pick.  (.Mass.)  7'.) :    Chase  v.  Bradley.  26  .Me. 
531;    or  submit  matters  in  dispute  to  arbi- 
tration; Wills  v.  Rand's  Adm'rs,  41  Ala.  L98i 
Wood  v.  Tunnicliff,  7  1  N.  Y.  :;s.    without  the 
sanction  of  the  probate  court,  he  has  no  pow- 
er  to   bind  the   estate   by   contract,   even  for 
the  necessities  of  infant  devisees;    K^scoe  v. 
McDonald,  91  Mich.  270,  51  N.  W.  939.     His 
right   to    employ    counsel   depends    upon    the 
right  to  litigate;     In  re  Riviere's  Estate,  8 
Cal.  App.   773,  98  Pac.  40. 

^\'ife's  chases.  In  general,  choses  in  action 
given  to  the  wife  either  before  or  after  mar- 
riage survive  to  her.  provided  her  husband 
have  not  reduced  them  to  possession  before 
his  death.  A  promissory  note  given  to  the 
wife  during  coverture  comes  under  this  rule 
in  England;  12  M.  &  w.  355;  7  Q.  B.  864; 
but  not  so  in  this  country  generally ;  Jones' 
Adm'r  v.  Warren's  Adm'r.  4  liana  (Ky.) 
Fourth  Ecclesiastical  Society  in  Middletown 
v.  Mather,  15  Conn.  587;  Savage  v.  King,  17 
Me.  301.  Mere  intention  to  reduce  i 
into  possession  is  not  a  reduction,  nor  is  a 
mere  appropriation  of  the  fund;  .">  \Y-.  515; 
Petrie  v.  Clark,  11  S.  &  R,  (Pa.)  ::77.  14  Am. 
Pec  <;::<;;  In  re  Hinds'  Estate,  5  Whart.  (Pa.) 
L38,  34  Am.  Dec.  542;  Wardlow  v.  Tray's 
Adm'r,  2  Hill.  Eq.  (S.  C.)  644;  Pitts  v.  Cur- 
tis, 4  Ala.  350;  Curry  v.  Fulkinson's  El'rs, 
14  Ohio   Km. 

A  statutory  right  of  a  husband  to  sue  for  a 
Chose  in  action  of  his  wife  without  admin- 
istration is  confined  to  the  cases  expressly 
declared  l>y  the  statute  and  will  not  be  ex- 
tended by  construction;  Ferguson  v.  B 
6  App.  D.  C.  525. 

When  the  same  persons  are  both  executors 
and  trustees,  and  as  executors  have  paid  the 
debts  and  passed  their  final  account,  they  no 
longer  hold  the  assets  as  executors  but  as 
trustees ;  [1913]  A.  C.  7>-..  But  where  the 
same  person  was  appointed  executor  and  tes- 


EXECUTORS  AND  ADMINISTRATORS  1148  EXECUTORS  AND  ADMINISTRATORS 


tainentary  trustee,  and  he  qualified  as  execu- 
tor, but  gave  no  undertaking  as  trustee  and 
secured  no  order  for  his  discharge  as  executor, 
and  he  had  failed  to  file  current  accounts 
until  compelled  to  render  a  final  account,  it 
was  held  that  his  relation  as  executor  re- 
mained and  that  the  court  was  empowered  to 
direct  the  final  accounting;  In  re  Roach's 
Estate,  50  Or.  179,  92  Pac.  118. 

Suits  by  or  against  Executors  and  Ad- 
ministrators. 1.  By.  In  general,  a  right  of 
action  founded  on  a  tort  or  malfeasance  dies 
with  the  person.  But  personal  actions  found- 
ed upon  any  obligation,  contract,  debt,  cove- 
nant, or  other  duty  to  be  performed,  survive, 
and  the  executor  may  maintain  them ;  Cowp. 
375;  1  Wms.  Saund.  216,  n.  See  Brannock 
v.  Stocker,  76  Ind.  573;  5  B.  &  Ad.  78.  By 
statutes  in  England  and  the  United  States 
this  common-law  right  is  much  extended.  An 
executor  may  now  have  trespass,  trover,  etc., 
for  injuries  done  to  the  intestate  during  his 
lifetime.  Except  for  slander,  for  libels,  and 
for  injuries  inflicted  on  the  person,  executors 
may  bring  personal  actions,  and  are  liable  in 
the  same  manner  as  the  deceased  would  have 
been;.  2  Brod.  &  B.  102;  Van  Rensselaer's 
Ex'rs  v.  Platner's  Ex'rs,  2  Johns.  Cas.  (N.  Y.) 
17 ;  Kennerly  v.  Wilson,  1  Md.  102 ;  Tait  v. 
Parkman,  15  Ala.  253;  Martin  v.  Baker,  5 
Blackf.  (Ind.)  232;  Rice's  Heirs  v.  Spots- 
wood's  Heirs,  6  T.  B.  Monr.  (Ky.)  40,  17  Am. 
Dec.  115;  Backus'  Adm'rs  v.  McCoy,  3  Ohio 
211,  17  Am.  Dec.  5S5 ;  Hagarty  v.  Morris,  2 
W.  N.  C.  (Pa.)  154.  See  Coleman  v.  Wood- 
worth,  28  Cal.  567;  Manwell  v.  Briggs,  17 
Vt.  176;  Richardson  v.  R.  Co.,  98  Mass.  85. 
Should  his  death  have  been  caused  by  the 
negligence  of  any  one,  they  may  bring  an  ac- 
tion for  the  benefit  of  the  family  in  some 
states.  Executors  may  also  sue  for  stocks 
and  annuities,  as  being  personal  property.  A 
right  of  action  for  the  breach  of  a  parol  con- 
tract for  the  sale  of  land  survives  to  the  ex- 
ecutors; Irwin  v.  Hamilton,  6  S.  &  R.  (Pa.) 
208.  So  they  may  sue  for  an  insurance  pol- 
icy. 

The  courts  of  New  Jersey  will  enforce  the 
Pennsylvania  statute  giving  a  right  of  action 
to  the  widow  of  one  who  dies  of  injuries  in- 
flicted by  the  wrongful  act  of  another,  that 
statute  not  being  repugnant  to  the  policy  of 
the  former  state;  but  such  an  action  cannot 
be  brought  in  New  Jersey  by  the  personal 
representative  of  the  deceased,  as  required 
by  the  laws  of  that  state  in  similar  cases; 
Lower  v.  Segal,  59  N.  J.  L.  66,  34  Atl.  945. 

For  actions  accruing  after  the  testator's 
death,  the  executor  may  sue  either  in  his  own 
name  or  as  executor.  This  is  true  of  actions 
for  tort,  as  trespass  or  trover,  actions  on 
contract  and  on  negotiable  paper ;  3  Nev.  & 
M.  391 ;  Patchen  v.  Wilson,  4  Hill  (N.  Y.)  57 ; 
Williams  v.  Moore,  9  Pick.  (Mass.)  432 ;  Hail- 
ey  v.  Wheeler,  49  N.  C.  159.  So  he  may  bring 
replevin  in  his  own  name ;  Branch  v.  Branch, 


6  Fla.  314;  and  so,  in  short,  wherever  the 
money,  when  recovered,  will  be  assets,  the 
executor  may  sue  as  executor  ;  Flower's  Ex'rs 
v.  Garr,  20  Wend.  (N.  Y.)  668 ;  Sheets  v.  Pa- 
body,  6  Blackf.  (Ind.)  120,  38  Am.  Dec.  132 ; 
Biddle  v.  Wilkins,  1  Pet.  (U.  S.)  686,  7  L.  Ed. 
315.  See  Pope's  Heirs  v.  Boyd's  Adm'x,  22 
Ark.  535  ;  Linsenbigler  v.  Gourley,  56  Pa.  166, 
94  Am.  Dec.  51.  An  executor  cannot  recover 
in  ejectment  without  producing  the  will ; 
Mays  v.  Killen,  56  Ga.  527 ;  Horn  v.  Johnson, 
87  Ga.  448,  13  S.  E.  633. 

2.  Against.  An  action  of  trespass  quare 
clausum  f regit  survives  against  the  executor; 
McCallion  v.  Gegan,  9  Phila.  (Pa.)  240.  So 
also  in  causes  of  action  wholly  occurring  aft- 
er the  testator's  death,  the  executor  is  liable 
individually;  Kerchner  v.  McRae,  80  N.  C. 
219.  The  actions  of  trespass  and  trover  do 
not  survive  against  the  executors  of  deceased 
defendants.  But  the  action  of  replevin  does. 
The  general  rule  is  that  causes  of  action  ex 
contractu  survive,  while  those  ex  delicto  do 
not.  "Executors  and  administrators  are  the 
representatives  of  the  personal  property  of 
the  deceased  and  not  of  his  wrongs  except  so 
far  as  the  tortious  act  complained  of  was 
beneficial  to  his  estate;"    2  Kent  416. 

As  an  administrator  merely  stands  in  place 
of  the  deceased,  and  does  not  represent  cred- 
itors, he  cannot  file  a  bill  to  set  aside  a  con- 
veyance in  fraud  of  creditors,  the  right  to  do 
so  being  in  the  creditors  defrauded ;  Hoyt  v. 
Northup,  256  111.  604,  100  N.  E.  164. 

The  statute  prescribes  a  fixed  time  for  set- 
tling estates  within  which  the  executor  or 
administrator  cannot  be  sued,  or  compelled 
to  file  an  account,  unless  he  waives  the 
right;  Moses  v.  Jones,  2  Nott  &  McC.  (S.  C.) 
259;  Baggott  v.  Boulger,  2  Duer  (N.  Y.)  160. 
If  he  makes  payments  erroneously,  supposing 
the  estate  to  be  solvent,  he  may  recover 
them,  it  being  a  mistake  of  fact;  Walker  v. 
Bradley,  3  Pick.  (Mass.)  261;  Swope  v. 
Chambers,  2  Gratt.  (Va.)  319. 

As  to  whether  an  executor  or  administra- 
tor is  bound  to  plead  the  statute  of  limita- 
tion, the  decisions  are  not  uniform.  That  he 
is  not  bound  to  do  so  is  held  in  Hodgdon  v. 
White,  11  N.  H.  208;  Wiggins  v.  Lovering's 
Adin'r,  9  Mo.  202;  Semmes  v.  Magruder,  10 
Md.  242;  Batson  v.  Murrell,  10  Humph. 
(Tenn.)  301,  51  Am.  Dec.  707;  Conway's 
Ex'r  v.  Reyburn's  Ex'rs,  22  Ark.  290 ;  Cham- 
bers v.  Fennemore's  Adm'r,  4  Harr.  (Del.) 
368;  Appeal  of  Ritter,  23  Pa.  95;  Barnawell 
v.  Smith,  58  N.  C.  168;  Woods  v.  Irwin,  141 
Pa.  278,  21  Atl.  603,  23  Am.  St.  Rep.  282 ;  In 
re  Baumhover's  Estate,  151  la.  146,  130  N. 
W.  817 ;  but  a  different  rule  applies  when  the 
personal  estate  is  insufficient  to  pay  the 
debts  and  a  resort  to  the  realty  is  necessary ; 
Pollard  v.  Scears'  Adm'r,  28  Ala.  484,  65  Am. 
Dec.  364.  That  it  is  his  duty  to  plead  the 
statute  is  held  in  Patterson  v.  Cobb,  4  Fla. 
481  (and  if  he  does  not  he  is  liable  for  a 
devastavit);  Tunstall  v.  Pollard's  Adm'r,  11 


EXECUTORS  AND  ADMINISTRATORS     1141)     EXECUTORS  AND  ADMINISTRATORS 


Leigh  (Va.)  1;  Matter  of  Milligan's  Estate, 
112  App.  Div.  373,  98  N.  Y.  Supp.  480.  But 
the  executor  was  held  bound  by  a  waiver  of 
the  statute  contained  in  the  will;  Glassell 
v.  Glasseli  147  Cal.  510,  82  Pac.  42.  If  one 
co-administrator  declines  to  plead  it,  the  oth- 
er may  do  so;  Scull  v.  Wallace's  Ex'rs,  15 
S.  &  R.  (Pa.)  231,  and  if  the  administrator 
does  not  plead  it,  the  next  of  kin  may  do  so ; 
In  re  Clarke's  Estate,  1  Phila.  (Pa.)  350;  or 
a  creditor  interested  in  the  estate;  Smith  v. 
Pattie,  81  Va.  654.  The  bar  of  the  statute 
having  attached  to  a  claim  against  an  es- 
tate, it  cannot  be  waived  by  an  acknowledg- 
ment of  the  debt  by  the  personal  representa- 
tive; Lee's  Adm'r  v.  Downey,  68  Ala.  98; 
Vrooman  v.  Li  Po  Tai,  113  Cal.  302,  45  Pac. 
470;  Burnett  v.  Noble,  5  Redf.  Sur.  (N.  T.) 
69 ;  Seig  v.  Acord's  Ex'r,  21  Gratt.  (Va.)  365,  8 
Am.  Rep.  605.  And  the  executor  or  adminis- 
trator cannot  waive  the  statute  as  against 
a  claim  in  his  own  favor;  Grinned  v.  Bax- 
ter, 17  Pick.  (Mass.)  383;  In  re  Brown's  Es- 
tate, 77  Misc.  507,  137  N.  Y.  Supp.  978 ;  Clay- 
ton v.  Dinwoodey,  33  Utah  251,  93  Pac.  723, 
14  Ann.  Cas.  926;  or  the  next  of  kin  may 
set  in  up;  Willcox  v.  Smith,  26  Barb.  (N. 
Y.)  316.  He  is,  in  some  states,  chargeable 
with  interest,  first,  when  he  receives  it  upon 
assets  put  out  at  interest;  second,  when  he 
uses  them  himself:  third,  when  he  has  large 
sums  paid  him  which  he  ought  to  have  put 
out  at  interest;  Griswold  v.  Chandler,  5  N. 
H.  497;  Wyman  v.  Hubbard.  13  Mass.  232; 
but  he  is  not  liable  where  he  has  funds  which 
he  holds  pending  legal  proceedings  to  deter- 
mine the  rights  of  the  remaindermen;  In  re 
Howard's  Estate,  3  Misc.  170,  23  N.  Y.  Supp. 
836.  In  some  cases  of  need,  as  to  relieve  an 
estate  from  sale  by  a  mortgagee,  he  may 
lend  the  estate  money  and  charge  interest 
thereon ;  Jennison  v.  Hapgood,  10  Pick. 
(Mass.)  77.  The  widow's  support  is  usually 
decreed  by  the  judge.  But  the  administra- 
tor is  not  liable  for  the  education  of  infant 
children,  or  for  mourning-apparel  for  rela- 
tives and  friends  of  the  deceased:  Johnson 
v.  "Corbett,  11  Paige  Ch.  (N.  Y.)  265;.  Appeal 
of  Flint  ham,  11  S.  &  R.   (Pa.)  16. 

The  liability  is  in  general  measured  by  the 
amount  of  assets.  On  his  contracts  he  may 
render  himself  liable  personally,  or  as  ad- 
ministrator merely,  according  to  the  terms  of 
the  contract  which  he  makes;  7  B.  &  C.  450; 
Murrell  v.  Wright,  78  Tex.  519,  15  S.  W.  156. 
But  to  make  him  liable  personally  for  con- 
tracts about  the  estate,  a  valid  consideration 
must  be  shown;  3  Sim.  543;  2  Brod.  &  B. 
loo.  And,  in  general,  assets  or  forbearance 
will  form  the  only  consideration;  5  My.  & 
C.  71;  Bank  of  Troy  v.  Topping  &  Holme, 
13  Wend.  (N.  Y.)  557.  But  a  bond  of  itself 
imports  consideration  ;  and  hence  a  bond  giv- 
en by  administrators  to  submit  to  arbitra- 
tion is  binding  upon  them  personally ;  Ten 
Eyck  v.  Vanderpoel,  8  Johns.  (N.  Y.)  120; 
Robinson  v.  Lane,  14   Smedes  &  M.    (Miss.) 


1 01 .     He  may  compromise  a  suit  brought  for 
the  widow  and  next  of  kin,  for  the  death  of 
te ;  Washington  v.  I  (6  111. 

49,  26  X.  E.  653.     !:.  be  ii  uot  liable 

when  he  has  acted   in  good   faith,  and 
that    degree    of    caution    which    prudent   men 
exhibit  in   the  conduct  of  their  own  afl 
In  re  Bosio's  Estate,  "J  Ashm.   (Pa.)  4.;?. 

An  administrator  cannot   ratify  decedent's 
void    transactions,    nor    make   any    conl 
for  him;  Smith  v.  Brennan,  62  Ml 
X.  W.  892,  4  Am.  St.  Rep.  867. 

An  administrator  is  liable  for  torts  and 
for  gross  negligence  in  managing  his 
tate's  property.  This  species  of  misconduct 
is  called  in  law  a  devastavit;  Cartwright  v. 
Cartwright,  4  Ilayn.  (Tenn.)  134;  Je 
v.  Yarborough,  16 N.  C. 516;  in  re  Holladay'a 
Estate,  IS  Or.  168,  22  I'ae.  750.  Such  i 
ligence  in  collecting  DOtes  or  debts;  In  re 
Merkel'a  Estate,  131  Pa.  584,  18  Atl. 
an  unnecessary  sale  of  property  at  a  dis- 
count; Pinckard  v.  Woods.  S  Gratt  (Va.) 
140;  paying  undue  funeral  expenses;  1  B.  & 
Ad.  200;  and  the  like  mismanagements.  So 
he  may  he  liable  for  not  laying  out  assets 
for  the  benefit  of  the  estate,  or  for  turning 
the  money  to  his  own  profit  or  advantage. 
In  such  cases  he  is  answerable  for  both  prin- 
cipal and  interest.  In  England  he  may  be 
charged  with  increased  interest  for  money 
withheld  by  fraud;  1'  Cox,  Ch.  113;  4  Ve& 
620;  and  he  is  sometimes  made  cl 
with  compound  interest  in  this  country  ;  Jen- 
nison v.  Hapgood,  10  Pick,  i  Mass.)  77.  Fi- 
nally, a  refusal  to  account  for  funds,  or  an 
unreasonable  delay  in  accounting,  raises  a 
presumption  of  a  wrongful  use  of  them; 
Johnson  v.  Beauchamp,  5  Dana  (Ky.)  70; 
Evans  v.  Iglehart,  6  <;ill  &  J.  (Md.)  186.  [f 
he  receives  rents  and  profits  of  land  for  a 
long  period  without  accounting,  he  is  liable 
to  the  heirs  for  the  reasonable  rental  value 
of  the  land  for  the  entire  period ;  Shuffler  v. 
Turner,   111  X.  C.  297,  10  S.  E.  417. 

Where  real  estate  is  sold  by  executor- 
co-executor,  the  sale  is  voidable  at  the  in- 
stance of  those  interested  in  the  estate; 
In  re  Richard's  Estate,  154  Cal.  47s.  98  Pac. 
528.  One  executor  may  sue  another  where 
questions  arise  between  the  latter  and  the 
estate,  jeopardizing  the  rights  of  pari 
interest:  Monmouth  Inv.  Co.  v.  Means,  l.M 
Fed.   159,  80  0.  C.  A.  527. 

After  the  debts  have  been  paid  and  the 
final  accounl  passed,  and  a  legacy  ordered 
paid,  an  action  will  lie  against  the  executor 
to   recover  it;  Anderson    v.    Patty,    168   ill. 

App.   151. 

An  insolvent  bank  cannot   sue  an  ex.  • 
for  an   assessment   on   the  stock  of  In- 
dent,  which   was  levied   after  a   final  decree 
for  the  distribution  of  the  estate:  Union  Sav- 
Ings  Ban*  of  San  Jose  v.  De  Laveaga,  150 
Cal.  395,  Ml  Pac.  S4. 

Distribution.  The  distribution  or  disposal 
of  the  estate  by  an  executor  is  as  directed 


EXECUTORS  AND  ADMINISTRATORS  1150  EXECUTORS  AND  ADMINISTRATORS 


by  the  will.  The  administrator  must  distrib- 
ute the  residue  among  those  entitled  to  it, 
under  direction  of  the  court  and  according 
to  law;  Lamb  v.  Carroll,  28  N.  C.  4;  Appeal 
of  Stewart,  86  Pa.  149;  Appeal  of  Kline,  86 
Pa.  363;  Marshall  v.  Hitchcock,  3  Redf.  (N. 
Y.)  461.  But  if  he  recognizes  a  claim  as 
proper  to  be  paid,  and  subsequently  rinds 
that  there  is  no  legal  foundation  for  it,  it  is 
not  binding  upon  the  estate;  Webster  v.  Le 
Compte,  74  Md.  249,  22  Atl.  232.  And  even 
after  action  brought  against  him  by  a  credi- 
tor he  may  apply  the  assets  in  payment  of 
the  debt  of  another  creditor;  24  Q.  B.  Div. 
364. 

The  great  rule  is,  that  personal  property 
is  regulated  by  the  law  of  the  domicil.  The 
rights  of  the  distributees  vest  as  soon  as  the 
intestate  dies,  but  cannot  be  sued  for  till  the 
lapse  of  the  statute  period  of  distribution. 
See  118th  Novel  of  Justinian,  Cooper's  trans. 
393  :    Distribution  ;  Conflict  of  Laws. 

Compensation.  An  executor  cannot  pay 
himself.  His  compensation  must  be  ordered 
by  the  court;  Collins  v.  Tilton,  58  Ind.  374. 
Faithful  service  by  an  executor  is  a  condi- 
tion to  the  right  of  commissions.  Misappro- 
priation of  funds  may  forfeit  the  right;  In 
re  Clauser's  Estate,  84  Pa.  51. 

Commissions  are  not  allowed  on  a  legacy 
given  in  trust  to  an  executor;  Westerfield  v. 
Westerfield,  1  Bradf.  Surr.  (N.  Y.)  198; 
Ames  v.  Downing,  1  Bradf.  Surr.  (N.  Y.) 
321.  Reasonable  expenses  are  always  allow- 
ed an  executor;  Thacher  v.  Dunham,  5 
Gray  (Mass.)  26;  Wilson  v.  Bates,  28  Vt. 
765  ;  Ord  v.  Little,  3  Cal.  287  ;  Noel  v.  Harvey, 
29  Miss.  72.  When  one  of  two  co-executors 
has  done  nothing,  he  should  get  no  commis- 
sion; White  v.  Bullock,  20  Barb.  (N.  Y.)  91. 
Where  a  stranger  was  appointed  adminis- 
trator, upon  his  statement  that  his  service 
would  be  gratuitous,  he  should  not  be  al- 
lowed commissions  ;  Hilton  v.  Hilton's  Adm'r, 
109  S.  W.  905,  33  Ky.  L.  Rep.  276.  In  Eng- 
land, executors  cannot  charge  for  personal 
trouble  or  loss  of  time,  and  can  only  be  paid 
for  reasonable  expenses. 

An  administrator  receives  no  compensa- 
tion in  England ;  3  Mer.  24 ;  but  in  this 
country  he  is  paid  in  proportion  to  his  serv- 
ices, and  all  reasonable  expenses  are  allowed 
him ;  Appeal  of  Culbertson,  84  Pa.  303.  Ad- 
ditional allowance  may  be  made  where  ex- 
traordinary services  have  been  rendered;  In 
re  Moore's  Estate,  96  Cal.  522,  31  Pac.  584. 
An  administrator  cannot  pay  himself.  His 
compensation  must  be  ordered  by  the  court ; 
Collins  v.  Tilton,  58  Ind.  374.  If  too  small 
a  compensation  be  awarded  him,  he  may  ap- 
peal; Jewett  v.  Woodward,  1  Edw.  Ch.  (N. 
Y.)  195;  Edelen  v.  Edelen,  11  Md.  415;  Ord 
v.  Little,  3  Cal.  287 ;  Andrew's  Ex'rs  v.  An- 
drew's Adm'rs,  7  Ohio  St.  143;  Fowler  v. 
Lockwood,  3  Redf.  (N.  Y.)  465.  Allowance 
by  a  probate  court  cannot  be  impeached  in  a 
court   of  equity   unless  fraud   or   deception 


has  been  practiced ;  Smith  v.  Worthington, 
53  Fed.  977,  4  C.  C.  A.  130.  He  cannot  buy 
the  estate,  or  any  part  of  it,  whan  sold  by  a 
common  auctioneer  to  pay  debts ;  but  he 
may  when  the  auctioneer  is  a  state  officer, 
and  the  sale  public  and  bona  fide;  Toler's 
Adm'r  v.  Toler,  2  Patt.  &  H.  (Va.)  71; 
Weeks  v.  Gibbs,  9  Mass.  75 ;  Babbitt  v.  Doe, 
4  Ind.  355;  Barrington  v.  Alexander,  6  Ohio 
St.  189. 

Federal  Jurisdiction.  Matters  of  pure  pro- 
bate are  not  within  the  jurisdictions  of 
courts  of  the  United  States ;  but  where  a 
state  law  gives  citizens  of  the  state,  in  an 
action  or  suit  inter  partes,  the  right  to  ques- 
tion the  probate  of  a  will,  federal  courts,  at 
the  suit  of  citizens  of  other  states  or  aliens 
will  enforce  such  remedies;  Farrell  v. 
O'Brien,  199  U.  S.  89,  25  Sup.  Ct  727,  50  D. 
Ed.   101. 

The  possession  of  a  state  court  which  will 
exclude  the  exercise  of  power  by  the  federal 
court,  and  vice  versa,  must  be  the  possession 
of  some  thing,  corporeal  or  incorporeal, 
which  has  been  taken  under  the  dominion  of 
the  court.  A  controversy  or  inquiry  is  not 
such  a  thing,  and  the  pendency  of  a  suit  or 
proceeding  in  one  court,  involving  a  question, 
controversy,  or  inquiry,  is  no  bar  to  the  ex- 
ercise of  jurisdiction  in  the  determination 
of  the  same  question,  etc.,  in  the  other ;  Ball 
v.  Tompkins,  41  Fed.  486;  American  Baptist 
Home  Mission  Society  v.  Stewart,  192  Fed. 
976;  Byers  v.  McAuley,  149  U.  S.  008,  13 
Sup.  Ct.  906,  37  L.  Ed.  867. 

The  right  to  administer  property  left  by  a 
foreigner  within  the  jurisdiction  of  a  state  is 
primarily  committed  to  state  law  and  the 
public  administrator  is  entitled  to  adminis- 
ter the  estate  of  an  Italian  subject  dying  and 
leaving  an  estate  in  California,  in  preference 
to  the  Italian  Consul  General,  who  claimed 
the  right  under  treaty ;  In  re  Ghio's  Estate, 
157  Cal.  552,  108  Pac.  516,  37  L.  R.  A.  (N. 
S.)  549,  137  Am.  St.  Rep.  145,  affirmed  in 
Rocca  v.  Thompson,  223  U.  S.  317,  32  Sup. 
Ct.  207,  56  L.  Ed.  453,  where  the  question 
whether  it  is  within  the  treaty-making  pow- 
er to  provide  for  administration  upon  the 
estates  of  foreigners  dying  within  a  state, 
by  the  consul  of  their  country,  was  suggest- 
ed but  not  discussed  or  decided.    See  Treaty. 

See  Schouler;  Williams;  Croswell,  Exrs. 
and  Admrs. ;  Woerner,  Law  of  Adm. ;  2 
Lawson,  Rights  &  Rem.  889-1008;  Holmes, 
Executors  in  Early  English  Law,  3  Sel.  Es- 
says in  Anglo-Amer.  L.  H.  736  (9  Harv.  L.  R. 
42) ;  Caillemer,  The  Executor  in  England 
and  on  the  Continent,  id.  746. 

EXECUTORY.  Performing  official  duties; 
contingent;  also,  personal  estate  of  a  de- 
ceased ;  whatever  may  be  executed, — as,  an 
executory  sentence  or  judgment. 

EXECUTORY  CONSIDERATION.  Some- 
thing which  is  to  be  done  after  the  promise 


EXECUTORY  CONSIDERATION        1151 


EXECUTORY  DEVISE 


is  made,  for  which  it  is  the  legal  equivalent. 
See  Consideration. 

EXECUTORY  CONTRACT.  One  in  which 
some  future  act  is  to  be  done:  as,  where 
an  agreement  is  made  to  build  a  house  in 
six  months,  or  to  do  any  act  at  a  future  day. 
See  Contract;    Performance. 

An  agreement  to  sell  and  convey  land, 
which  is  not  a  conveyance,  operating  as  a 
present  transfer  of  legal  estate  and  seisin, 
is  wholly  executory,  though  it  contains  t.l it- 
words  "grant,  bargain  and  sell;"  and  pro- 
duces no  effect  upon  the  estates  and  titles 
of  the  parties;  and  creates  no  lien  or  charge 
on  the  land  itself;  Simpson  v.  Breckenridge, 
32  Pa.  2S7;  Stewart's  Adm'rs  v.  Lang,  37 
Pa.  201,  78  Am.  Dec.  414;  Watson  v.  Coast, 
35  W.  Va.  403,  M  S.  E.  249. 

EXECUTORY  DEVISE.  Such  a  limita- 
tion of  a  future  estate  in  lands  or  chat  tils 
as  the  law  admits  in  case  of  a  will,  though 
contrary  to  the  rules  of  limitation  in  con- 
veyances at  common  law. 

It  is  a  limitation  by  will  of  a  future  estate 
or  interest  in '  lands  or  chattels.  In  re 
Brown's  Estate,  38  Pa.  294. 

By  the  executory  devise  no  estate  vests  at  the 
death  of  the  devisor  or  testator,  but  only  on  the  fu- 
ture contingency.  It  is  only  an  indulgence  to  the 
last  will  and  testament  which  is  supposed  to  be 
made  by  one  inojis  conailii.  When  the  limitation  by 
devise  is  such  that  the  future  interest  falls  within 
the  rules  of  contingent  remainders,  it  is  a  contin- 
gent remainder,  and  not  an  executory  devise.  4 
Kent  257 ;    3   Term  763. 

If  a  particular  estate  of  freehold  be  first  devised, 
capable  in  its  own  nature  of  supporting  a  remain- 
der, followed  by  a  limitation  which  is  not  immedi- 
ately connected  with,  or  does  not  immediately  com- 
mence from,  the  expiration  of  the  particular  estate 
of  freehold,  the  latter  limitation  cannot  take  effect 
as  a  remainder,  but  may  operate  as  an  executory 
devise:  e.  g.,  if  land  be  devised  to  A  for  life,  and 
after  his  decease  to  B  in  fee,  B  takes  a  (vested)  re- 
mainder, because  his  estate  is  immediately  connect- 
ed with,  and  commences  on,  the  limitation  of  A's 
estate.  If  land  be  limited  to  A  for  life,  and  one 
year  after  his  decease  to  B  in  fee,  the  limitation  to 
B  is  not  such  a  one  as  will  be  a  remainder,  but  may 
operate  as  an  executory  devise.  Fearne,  Cont.  Rem. 
399.  If  land  be  limited  to  A  for  life,  and  after  his 
decease  to  B  and  his  heirs,  with  a  proviso  that  if 
B  survive  A  and  die,  without  issue  of  his  body  liv- 
ing at  his  decease ;  then  to  C  and  his  heirs,  the 
limitation  to  B,  etc.,  prevents  an  immediate  con- 
nection of  the  estate  limited  to  C  with  the  life  es- 
tate of  A,  and  prevents  its  commencement  on  the 
death  of  A.  It  must  operate,  if  at  all,  as  an  execu- 
tory devise  ;  Butler's  note  (c)  to  Fearne,  Cont.  Rem. 
397.  If  a  chattel  interest  be  bequeathed  for  life, 
with  remainder  over,  this  latter  disposition  cannot 
take  effect  as  a  remainder,  but  may  as  an  execu- 
tory devise,  or  more  properly  bequest ;    id.  407. 

An  executory  devise  differs  from  a  remainder  In 
three  very  material  respects: 

First.  It  needs  no  particular  estate  to  support  It. 
Second.  By  it  a  fee-simple  or  other  less  estate  may 
be  limited  on  a  fee-simple.  Third.  By  it  a  remain- 
der may  be  limited  of  a  chattel  interest  after  a 
particular  estate  for  life  created  In  the  same. 

The  first  Is  a  case  of  freehold  commencing  in  fu- 
turo.  A  makes  a  devise  of  a  future  estate  on  a  cer- 
tain contingency,  and  till  the  contingency  happens 
does  not  dispose  of  the  fee-simple,  but  leaves  It  to 
descend  to  his  heirs  at  law.  1  T.  Raym.  82  ;  1  Salk. 
226;     1  I.utw.  798. 

The  second  case  Is  a  fee  upon  a  fee.  A  devises  to 
A  and  his  heirs  forever,  which  is  a  fee-simple,  and 


then,  in  case  A  dies,  before  he  Is  twenty-one  years 
of  age,  to  B  and  his  heirs.  Cro.  Jac.  590  ;  10  Mod. 
420. 

The  third  case:  a  limitation  in  a  term  of  years 
after  a  life  estate.  A  grants  a  term  of  one  thousand 
years  to  B  for  life,  remainder  to  C.  The  common 
law  regards  the  term  for  years  as  swallowed  up  in 
the  grant  for  life,  which,  being  a  freehold,  is  a 
greater  estate,  and  the  grantee  of  such  a  term  for 
life  could  alien  the  whole.  A  similar  limitation  In 
a  will  may  take  effect,  however,  as  an  ex> 
bequest;  Scott  v.  Price,  2  S.  &  R.  (Pa.)  59,  7  Am. 
Dec.  629;  Logan  v.  Ladson's  Ex'r,  1  Des.  (S.  C.) 
271 ;    Clifton  v.  Halg's  Ex'rs,  4  Des.   (S.  C.)  330. 

It  is  not  a   mere   possibility,    but    a 
stantial  Interest,  and  in  respect  to  its  ti 
missibility  stands  on  the  same  footing  with 
a  contingent  remainder;    Medley  v.  Mi 
81  Va.  268. 

In  order  to  prevent  perpetuities,  the  rule 
has  been  adopted  that  executory  interests 
must  be  so  limited  that  from  the  time  of 
their  limitation  they  will  necessarily  vest 
in  right  (not  necessarily  in  possession)  at  a 
period  not  exceeding  that  occupied  by  the 
life  or  lives  of  a  person  or  persons  then 
living,  or  in  ventre  matris,  and  the  minority 
of  any  person  or  persons  born  or  in  I  •  ntre 
matris  prior  to  the  decease  of,  such  first 
named  person  or  persons,  or  at  a  period  not 
exceeding  that  occupied  by  the  life  or  lives 
of  such  first  named  person  or  persons,  and 
an  absolute  term  of  twenty-one  years  after- 
wards, or  within,  or  at  the  expiration  of  an 
absolute  term  of  twenty-one  years  without 
reference  to  any  life.  For  example,  lauds 
are  devised  to  such  unborn  son  of  a  feme 
covert  as  shall  first  reach  the  age  of  twenty- 
one  years.  The  utmost  length  of  time  that 
can  happen  before  the  estate  can  vest  is  the 
life  of  the  mother  and  the  subsequent  in- 
fancy of  her  son.  Such  an  executory  devise 
is  therefore  good.  If,  however,  such  limit- 
ation had  been  to  the  first  unborn  son  who 
shall  attain  the  age  of  twenty-five  years, 
the  rule  against  perpetuities  would  be  in- 
fringed and  the  limitations  bad ;  Smith,  Ex. 
Int.  391;  2  Bla.  Com.  174. 

An  executory  devise  limited  after  an  in- 
definite failure  of  issue  is  had  as  leading  to 
a  perpetuity;  4  Kent  273;  and  so  of  an 
executory  bequest,  but  the  courts  are  in  the 
latter  case  much  less  apt  to  construe  limita- 
tions as  contemplating  a  definite  failure 
of  issue ;  4  Kent  281 ;  1  P.  Wins.  663 ;  Gray, 
Perpet.  212. 

An  executory  devise  is  generally  inde- 
structible by  any  alteration  in  the  i 
out  of  or  after  which  it  is  limited.  But  if 
it  is  limited  on  an  estate  tail  the  tenant  in 
tail  can  bar  it,  as  well  as  the  entail,  by 
common  recovery  or  by  deed  enrolled,  etc., 
where  such  deed  is  by  statute  given  the 
force,  and  effect  of  a  common  reco 
Butler's  note  to  Fearne,  Cont  Rem.  662; 
Wins.  R_  P.  319. 

EXECUTORY  ESTATES.  Interests  which 
depend  for  their  enjoyment  upon  some  Bub- 
sequent  event  or  contingency.     Such  estate 


EXECUTORY  ESTATES 


1152 


EXECUTORY  TRUSTS 


may  be  an  executory  devise,  or  an  executory 
remainder,  which  is  the  same  as  a  contingent 
remainder,  because  no  present  interest 
passes. 

EXECUTORY  PROCESS  {Via  Exccu- 
toria).  In  Louisiana,  a  process  which  can  be 
resorted  to  in  two  cases,  namely :  1.  When 
the  right  of  the  creditor  arises  from  an  act 
importing  confession  of  judgment,  and  which 
contains  a  privilege  or  mortgage  in  his  favor. 
2.  When  the  creditor  demands  the  execution 
of  a  judgment  which  has  been  rendered  by  a 
tribunal  different  from  that  within  whose 
jurisdiction  the  execution  is  sought.  Code  of 
Practice,  art.  732. 

EXECUTORY  TRUSTS.  A  trust  is  called 
executory  when  some  further  act  is  requisite 
to  be  done  by  the  author  of  the  trust  to  give 
it  its  full  effect.  See  Bisph.  Eq.  31;  Lewin, 
Tr.  144. 

The  distinction  between  executed  and  ex- 
ecutory trusts  is  well  settled;  Dennison  v. 
Goehring,  7  Pa.  177,  47  Am.  Dec.  505 ;  though 
once  doubted  in  England;  1  Ves.  142;  but 
see  2  Ves.  323.  The  test  is  said  to  be :  Has 
the  testator  been  what  is  called,  and  very 
properly  called,  his  own  conveyancer?  Has 
he  left  it  to  the  court  to  make  out  from  gen- 
eral expressions  what  his  intention  is?  or 
has  he  so  defined  that  intention  that  you 
have  nothing  to  do  but  to  take  the  limita- 
tions he  has  given  to  you,  and  to  convert 
them  into  legal  estates?  per  Lord  St.  Leon- 
ards, Ld.  Ch.,  in  4  H.  L.  Cas.  210;  see  Till- 
inghast  v.  Coggeshall,  7  R.  I.  3S3;  Bisph.  Eq. 
86. 

In  the  case  of  articles  made  in  contem- 
plation of  marriage,  and  which  are,  there- 
fore, preparatory  to  a  settlement,  so  in  the 
case  of  a  will  directory  of  a  future  convey- 
ance to  be  made  or  executed  by  the  trustees 
named  therein,  it  is  evident  that  something 
remains  to  be  done.  The  trusts  are  said  to 
be  executory,  because  they  require  an  ul- 
terior act  to  raise  and  perfect  them :  i.  e. 
the  actual  settlement  is  to  be  made  or  the 
conveyance  to  be  executed.  They  are  in- 
structions, rather  than  complete  instruments, 
in  themselves. 

The  court  of  chancery  will,  in  promotion 
of  the  supposed  views  of  the  parties  or  the 
testator  and  to  support  their  manifest  in- 
tention, give  to  the  words  a  more  enlarged 
and  liberal  construction  than  in  the  case 
of  legal  limitations  or  trusts  executed ;  1 
Fonbl.  Eq.  b.  1;  White,  Lead.  Cas.  18. 
Where  a  voluntary  trust  is  executory  and 
not  executed,  if  it  could  not  be  enforced  at 
law  because  it  is  a  defective  conveyance,  it 
is  not  helped  in  favor  of  a  volunteer  in  a 
court  of  equity;  Minturn  v.  Seymour,  < 
Johns.  Ch.  (N.  Y.)  498,  500;  Acker  v.  Phoe- 
nix, 4  Paige,  Ch.  (N.  Y.)  305;  Dawson  v. 
Dawson,  16  N.  C.  93,  18  Am.  Dec.  573.  But 
where  the  trust,  though  voluntary,  has  been 
executed  in  part,  it  will  be  sustained  or  en- 


forced in  equity ;  Bunn  v.  Winthrop,  1  Johns. 
Ch.  (N.  Y.)  329;  Dennison  v.  Goehring,  7 
Pa.  175,  178,  47  Am.  Dec.  505.  White,  Lead, 
Cas.  17(3;  0  Yes.  056;  18  id.  140;  1  K^en 
551;    3  Beav.  238. 

EXECUTORY  USES.  Springing  uses 
which  confer  a  legal  title  corresponding  to 
an  executory  devise. 

Thus,  when  a  limitation  to  the  use  of  A  in  fe« 
is  defeasible  by  a  limitation  to  the  use  of  B  to  arise 
at  a  future  period,  contingency,  or  event,  these  con- 
tingent or  springing  uses  differ  herein  from  an  ex- 
ecutory devise:  there  must  be  a  person  seized  to 
such  uses  at  the  time  the  contingency  happens,  else 
they  can  never  be  executed  by  the  statute.  There- 
fore, If  the  estate  of  the  feoffee  to  such  use  be  de- 
stroyed by  alienation  or  otherwise,  before  the  con- 
tingency arises,  the  use  is  destroyed  forever ;  1  Co. 
134,  138  ;  Cro.  Eliz.  439  ;  whereas  by  an  executory 
devise  the  freehold  itself  is  transferred  to  the 
future  devisee.  In  both  cases,  a  fee  may  be  limited 
after  a  fee  ;    10  Mod.  423. 

EXECUTRIX.  A  woman  who  has  been 
appointed  by  will  to  execute  such  will  or 
testament.     See  Executoe. 

EX  ECU  TRY.  In  Scotch  Law.  The  mov- 
able estate  of  a  person  dying,  which  goes  to 
his  nearest  of  kin.  So  called  as  falling  un- 
der the  distribution  of  an  executor.  Bell, 
Diet. 

EXEMPLARY  DAMAGES.  See  Measure 
of  Damages. 

EXEMPLIFICATION.  A  perfect  copy  of 
a  record  or  office-book  lawfully  kept,  so  far 
as  relates  to  the  matter  in  question.  See, 
generally,  1  Stark.  Ev.  151 ;  1  Phill.  Ev.  307 ; 
Mills  v.  Duryee,  7  Cra.  (U.  S.)  481,  3  L.  Ed. 
411;  Drummond  v.  Magruder,  9  Cra.  (U.  S.) 
122,  3  L.  Ed.  677;  Hampton  v.  M'Connel,  3 
Wheat.  (U.  S.)  234,  4  L.  Ed.  378;  Baker 
v.  Field,  2  Yeates  (Pa.)  532;  Ellmore  v. 
Mills,  2  N.  C.  359 ;  Smith  v.  Blagge,  1  Johns. 
Cas.  (N.  Y.)  238;  Schaben  v.  U.  S.,  6  Ct.  CI. 
230;  Thomas  v.  Stewart,  92  Ind.  246;  Cox 
v.  Jones,  52  Ga.  438.  As  to  the  mode  of  au- 
thenticating records  of  other  states,  see  For- 
eign' Judgments. 

EXEMPLUM     (I/at.).      In    Civil    Law.     A 

copy.  A  written  authorized  copy.  Used  also 
in  the  modern  sense  of  example:  ad  exemp- 
lum  constituti  singulares  non  trahi  (excep- 
tional things  must  not  be  taken  for  ex- 
amples). Calv.  Lex.  Exempli  gratia,  for  the 
sake  of  example.    Abb.  e.  g. 

EXEMPTION.  The  right  given  by  law  to 
a  debtor  to  retain  a  portion  of  his  property 
without  its  being  liable  to  execution  at  the 
suit  of  a  creditor,  or  to  a  distress  for  rent. 

In  general,  the  sheriff  may  seize  and  sell 
all  the  property  of  a  defendant  which  he 
can  find,  except  such  as  is  exempted  by  the 
common  law  or  by  statute.  The  common 
law  was  very  niggardly  of  these  exceptions: 
it  allowed  only  the  necessary  wearing  ap- 
parel; and  it  was  once  holden  that  if  a  de- 
fendant had  two  gowns  the  sheriff  might 
sell  one  of  them;    Comb.  356.     But  in  mod- 


EXEMPTION 


1153 


EXEMPTION 


em    times,    with    perhaps   a   prodigal   liber- 
ality,   a    considerable    amount   of   property, 
both    real   and   personal,   Is   exempted    from 
execution    by    the    statutes    of;   the    Bi 
states;     L9  Am.   L.  Keg.  1;    4  So.  L.  Rev. 
N.  s,  1;    In  re  Radway,  3  Hughes  609,  Fed. 
Oas.   No.  11,523;    Carlton  v.  Watts,  82  N.  C. 
212:    Mapp  v.  Long,  62  Ga.  568;    Singletary 
v.  Singletary,  31   La.  Ann.  374;   Rutledge  v. 
Rutledge,    8    Bax.    (Tenn.)    33;    Creath    v. 
Dale,  69  Mo.  41;    Vandeshorst  v.  Bacon,  38 
Mich.  669,  31  Am.  Rep.  32 S ;    Murphy  v.  Har- 
ris, 77  Cal.  194,  19  Pac.  377 ;    In  re  Robb,  99 
Cal.  202,  33  Pac.  890,  37  Ani.   St.  Rep.  48; 
Carter  v.  Davis,  6  Wash.  327,  33  Pac.  833; 
Bean  v.  Ins.  Co.,  54  Minn.  366,  56  N.  W.  127; 
Hamberger  v.  Marcus,  157  Pa.  133,  27  Atl. 
681,  37  Am.  St.  Rep.  719;    and  there  is  now 
hardly  a  state  or  nation  which  has  not  by 
statute    made   certain    exemptions    designed 
as  a  protection  for  the  family  ;   Woodward  v. 
Murray,  18  Johns. '  (N.   Y.)    403;    and  such 
statutes  are  to  be  liberally  construed;    But- 
ner  v.   Bowser,   104  Ind.  259,   3  N.   E.   889; 
Kuntz  v.  Kinney,  33  Wis.  510 ;   Good  v.  Fogg, 
01  111.  449,  14  Am.  Rep.  71 ;    Carty  v.  Drew, 
4(5  Yt.  346;    Allison  v.  Brookshire,  38  Tex. 
199;    Seeley  v.  Gwillim,  40  Conn.  100.     Some 
of  the  exemptions  are  the  following:    house- 
hold  furniture;    Towns  v.   Pratt,  33   N.    II. 
345,  66  Am.  Dec.  726 ;    Tanner  v.  Billings,  18 
Wis.  163,  86  Am.  Dec.  755;   Dunlap  v.  Edger- 
ton,  30  Vt.  224 ;    Haswell  v.  Parsons,  15  Cal. 
266,    76    Am.    Dec.    4S0 ;     Ileidenheimer    v. 
Blumenkron,  56  Tex.  308;    tools  of  trade; 
Atwood  v.  De  Forest,  19  Conn.  513 ;    Enscoe 
v.  Dunn,  44  Conn.  93,  26  Am.  Rep.  430 ;    Bos- 
ton Belting  Co.  v.  Ivens  &  Co.,  2S  La.  Ann. 
695 ;    Wicker  v.  Comstock,  52  Wis.  315,  9  N. 
W.  25;   work  horses;    Tishomingo  Sav.  Inst. 
v.  Young,  87  Miss.  473,  40  South.  9,  3  L.  R.  A. 
(N.   S.)    693,   112  Am.   St.   Rep.  454,   6  Ann. 
Cas.   776;    Forsyth   v.   Bower,   54  Cal.  639; 
Jaquith  v.    Scott,  63   N.  H.  5,  56  Am.  Rep. 
476 ;    Steele  v.  Lyford,  59  Yt.  230,  S  Atl.  736 
(but  this  will  not  include  high  bred  horses 
used  for  pleasure  and  to  drive  to  and  from 
business;    Tishomingo   Sav.    Inst.   v.    Young, 
87  Miss.  473,  40  South.  9,  3  L.  R.  A.  [N.  S.J 
693,  112  Am.  St.  Rep.  454,  6  Ann.  Cas.  776)  : 
the  interest  of  a  legatee  in  lauds,  until  the 
court  has  held  it  to  be  a  charge  on  such,  al- 
though the  legacy  is  given  with  a  view  that 
it  shall  be  such  a  charge ;   Hiscock  v.  Fultou, 
63  Hun  621,  17  N.  Y.  Supp.  408;   curtesy  ini- 
tiate ;    Bruce  v.  Nicholson,  109  N.  C.  202,  13 
S.  E.  790,  26  Am.  St.  Rep.  562;    property  held 
in  trust;    Mosher  v.  Neff,  33  Neb.  770,  51  X. 
W.  138;    the  bridge  of  a  public  corporation; 
Overton   Bridge  Co.   v.   Means,   :::;   Neb,    857, 
51  X.  W.  2P>,  29  Am.  St.  Rep.  514;   blackber- 
ries   while   growing;     Sparrow    v.    Pond,    19 
Minn.  412,  52  N.  W.  36,   16  L.  R.  A.  103,  32 
Am.    St.   Hep.    571;    trade-mark,   apart    from 
the  articles  it  has  served  to  identify;    Prince 
Mfg.  Co.  v.  Paint  Co..  20  X.  Y.  Supp.  462;    a 
vendor's  lieu  reserved  for  the  purchase  price 
Bouv.— 73 


of  lands   conveyed;     Willis   &   Bro.    v.    - 
inervill  Civ.  App.  '■■  9,  22  -;    W. 

the  interest  of  a   ccatui  under  a 

trust  Tor  maim   I  1  support  ;    Bn 

v.  Raynolds,  59  Fed.  92;  a.  :;7";    U 

interest   of    the    grantor    in    property    trail 
f erred  in  fraud  of  cred  v. 

Perkins,  Ml  X.  Y.  l,  35  N.  I 
emption  laws  are  inapplicable  I 

i  citizen  to  the  Onib 
Howell,  9  Fed.  674, 
rj.  S.  280,  1  Sup.  i 

Exemption  laws  are  not  a  pan  • 
tract;    they  are  part  of  the  remedy  and  sub- 
ject to  the  law  of  the  forum  ;    I  I. 
&  P.  Ry.  Co.  v.  Sturm.  174  F.  S.  710,  17  S 
Ct.  797,  43  L.  Ed.   1 1  1  I  :     Mineral    Point    R. 
Co.  v.  Barron,  83  111.  365  :    Carson  v.  1: 
S8  Tenn.  646,  13  S.  W.  588,  8  L.  R.  A.  412,  17 
Am.    St.   Rep.   921;    Conley   v.    Chilcote,   S, 
Ohio  St.  320;    Albrecht  v.  Treitschke,  17  Neb. 
205,  22  N.  W.  418;    Moore  v.  R.  Co.,  43  la. 
385;    Broadstreet  v.  Clark,  65  la.  ';7<>.  22  N. 
W.  919;    Stevens  v.  Frown,  20  W.   \'a.  4:.". 
That  a  debt  is  exempt  from  judicial  pr< 
in  the  state  where  it  was  created  will  not 
make  it  exempt  in  another  jurisdiction.    The 
exemption   does  not  follow   the   debt  as  an 
incident  thereto ;   Chicago,  R.  I.  &  P.  Ry.  Co. 
v.  Sturm,  174  U.  S.  710,  17  Sup.  Ct.    m,  4:; 
L.  Ed.  1144. 

See,  generally,  Bankruptcy  ;  Distress  ; 
Execution  ;  Homestead  ;  Family  ;  Tools  ; 
Tax. 

EXEMPTS.  Persons  who  are  not  bound 
by  law,  but  excused  from  the  performance 
of  duties  imposed  upon  others. 

By  act  of  congress  Feb.  24,  1S64,  it  was  enacted 
that  such  persons  as  were  rejected  as  physically  or 
mentally  unfit  for  the  service,  all  persons  actually 
in  the  military  or  naval  service  of  the  United  Stat.  - 
at  the  time  of  the  draft,  and  all  persons  who  had 
served  in  the  military  or  naval  service  two  years 
during  the  then  war  and  been  honorably  discharged 
therefrom,  and  no  others,  were  exempt  from  enrol- 
ment and  draft  under  said  act,  and  act  of  congress. 
March  3,   1SG3. 

EXEQUATUR  (Lat).  In  French  Law. 
A  Latin  word  which  was,  in  the  ancient  prac- 
tice, placed  at  the  bottom  of  a  Judgment 
emanating  from  another  tribunal,  and  was  a 
permission  and  authority  to  the  officer  to  ex- 
ecute it  within  the  jurisdiction  of  the  jud.L'e 
who  put  it  below  the  judgment 

We  have  something  of  the  same  kind  in  our  prac- 
tice. When  a  warrant  for  the  arrest  of  a  criminal 
is  issued  by  a  justice  of  the  peace  of  one  county, 
and  he  flies  into  another,  a  justice  of  the 
county  may  indorse  the  warrant,  and  then  the  min- 
isterial officer  may  execute  It  in  such  county.  This 
is  called   backing  a  warrant. 

In  International  Law.  An  oflieial  re 
t  i, .11  ol  a  consul  or  commercial  agent  made 
by  the  foreign  department  el'  the  state  to 
which  he  Is  accredited,  authorizing  him  to 
exercise  his  power.  He  cannot  act  without 
,i  it  n, ay  be  refused  or  revoked  at  the 
pleasure  of  the  same  government  3  Chit. 
Com.  Law  56;    3  M.  &   S.  290;    5  Pardessus, 


EXEQUATUR 


1154 


EXHIBIT 


n.  1445 ;  Twiss,  Law  of  Nations ;  1  Halleck, 
Int.  Law  351. 

EXERCITOR  MARIS  (Lat).  In  Civil 
Law.  One  who  fits  out  and  equips  a  vessel, 
whether  he  be  the  absolute  or  qualified  own- 
er, or  even  a  mere  agent.  Emerigon,  Mar. 
Loans,  c.  1,  s.  1.  We  call  him  exercitor  to 
whom  all  the  returns  come.  Dig.  14.  1.  1.  15; 
14.  1.  7;  3  Kent  161;  Molloy,  de  Jur.  Mar. 
243. 

The  managing  owner,  or  ship's  husband. 
These  are  the  terms  in  use  in  English  and 
American  laws,  to  denote  the  same  as  ex- 
ercitor maris.     See  Ship's  Husband. 

EXERCITORIA  ACTIO  (Lat).  In  Civil 
Law.  An  action  against  a  managing  owner 
{exercitor  maris),  founded  on  acts  of  the 
master.     3  Kent  161 ;    Vicat,  Voc.  Jur. 

EXFESTUCARE  (Lat).  To  abdicate;  to 
resign  by  passing  over  a  staff.  Du  Cange. 
To  deprive  one's  self  of  the  possession  of 
lands,  honors,  or  dignities,  which  was  for- 
merly accomplished  by  the  delivery  of  a 
staff  or  rod.  Said  to  be  the  origin  of  the 
custom  of  surrender  as  practised  in  England 
formerly  in  courts  baron.  Spelman,  Gloss. 
See   also,   Vicat,   Voc.   Jur. ;    Calvinus,   Lex. 

EXH/EREDATIO  (Lat).  In  Civil  Law. 
A  disinheriting.  The  act  by  which  a  forced 
heir  is  deprived  of  his  legitimate  or  legal 
portion.  In  common  law,  a  disherison.  Oc- 
curring in  the  phrase,  in  Latin  pleadings, 
ad  exliwredationem  (to  the  disherison),  in 
case  of  abatement 

EXH/ERES  (Lat).  In  Civil  Law.  One 
disinherited.     Vicat,  Voc.  Jur.;    Du  Cange. 

EXHIBERE  (Lat).  To  present  a  thing 
corporeally,  so  that  it  may  be  handled. 
Vicat,  Voc.  Jur.  To  appear  personally  to 
conduct  the  defence  of  an  action  at  law. 

EXHIBIT.  To  produce  a  thing  public- 
ly, so  that  i#may  be  taken  possession  of  and 
seized.     Dig.  10.  4.  2. 

To  file  of  record.  Thus,  it  is  the  practice 
in  England  in  personal  actions,  when  an 
officer  or  prisoner  of  the  king's  bench  is  de- 
fendant, to  proceed  against  such  defendant 
in  the  court  in  which  he  is  an  officer,  by 
exhibiting,  that  is,  filing,  a  bill  against  him. 
Steph.  PI.  52,  n.  {I);  2  Sellon,  Pr.  74;  Newell 
v.  State,  2  Conn.  38. 

A  paper  or  writing  proved  on  motion  or 
other  occasion. 

A  supplemental  paper  referred  to  in  the 
principal  instrument,  identified  in  some  par- 
ticular manner,  as  by  capital  letter,  and 
generally  attached  to  the  principal  instru- 
ment. 1  Stra.  674;  2  P.  Wms.  410;  Gresl. 
Eq.  Ev.  98. 

A  paper  referred  to  in,  and  filed  with  the 
bill,  answer,  or  petition  in  a  suit  in  equity, 
or  with  a  deposition.  Brown  v.  Redwyne,  16 
Ga.  68. 

In  the  absence  of  a  positive  statutory  pro- 
vision, exhibits  properly  identified  need  not 


be  attached  to  the  deposition  in  connection 
with  which  they  are  offered  in  evidence; 
Toby  v.  R.  Co.,  98  Cal.  490,  33  Pac.  550.  It 
has  been  held  that  the  exhibits  filed  with  a 
petition  form  no  part  thereof,  and  cannot  be 
considered  in  determining  its  sufficiency  on 
demurrer;  Pomeroy  v.  Fullerton,  113  Mo. 
440,  21  S.  W.  19 ;  and  if  the  exhibit  is  not 
the  foundation  for  the  cause  of  action  or  of 
the  defence,  it  will  not  be  considered ;  Barnes 
v.  Mowry,  129  Ind.  568,  28  N.  E.  535. 

Documents  and  other  things,  produced  by 
a  witness  on  cross-examination  and  marked 
for  identification,  are  not  before  the  court 
unless  offered  and  admitted ;  Byerley  v.  Sun 
Co.,  181  Fed.  138. 

EXHIBITANT.  A  complainant  in  articles 
of  the  peace.     12  Ad.  &  E.  599. 

EXHIBITION.  In  Scotch  Law.  An  action 
for  compelling  the  production  of  writings. 
See  Discoveey. 

EXHUMATION.  The  exhumation  of  a 
body  should  be  ordered,  if  at  all,  only  on  a 
strong  showing  that,  without  its  examina- 
tion, a  fraud  is  likely  to  be  accomplished 
which  an  insurance  company  has  exhausted 
every  other  legal  means  of  exposing;  Gran- 
ger's Life  Ins.  Co.  v.  Brown,  57  Miss.  308,  34 
Am.  Rep.  446.  Disinterment  may  be  com- 
pelled by  public  authorities  whenever  condi- 
tions become  such  as  that  the  public  health 
is  threatened,  or  in  the  interest  of  justice; 
Gray  v.  State,  55  Tex.  Cr.  R.  90,  114  S.  W. 
635,  22  L.  R.  A.  (N.  S.)  513;  or  for  the  pur- 
pose of  ascertaining  whether  a  crime  has 
been  committed ;  People  v.  Fitzgerald,  105 
N.  Y.  146,  11  N.  E.  37S,  59  Am.  Rep.  483 ;  or 
where  an  examination  may  disclose  facts 
which  prove  an  accused  person  innocent  of 
crime;  Gray  v.  State,  55  Tex.  Cr.  R.  90,  114 
S.  W.  635,  22  L.  R.  A.  (N.  S.)  513. 

Such  an  order  was  refused  in  Moss  v. 
State,  152  Ala.  30,  44  South.  598,  because  it 
appeared  that  two  reputable  physicians, 
available  at  the  trial,  had  examined  the  body 
before  burial.  There  is  said  to  be  no  law  re- 
quiring a  court,  at  the  prisoner's  request, 
but  at  the  expense  of  the  state,  to  order  the 
body  to  be  exhumed  in  order  to  furnish  him 
with  evidence;  Salisbury  v.  Com.,  79  Ky. 
425.  In  Com.  v.  Grether,  204  Pa.  203,  53  Atl. 
753,  the  court  refused  to  set  aside  a  convic- 
tion of  murder  in  the  first  degree  because 
the  district  attorney  and  not  the  coroner  had 
caused  the  body  to  be  exhumed.  In  an  in- 
surance case,  exhumation  was  ordered,  to 
obtain  evidence  bearing  on  the  question  of 
suicide  ;  the  marshal  was  directed  to  exhume 
the  body  and  the  court  appointed  a  patholo- 
gist and  a  chemist  to  make  the  examination ; 
it  was  held,  also,  that  such  order  could  be 
made  only  in  a  case  where  the  widow  was  a 
party ;  Mutual  Life  Ins.  Co.  of  New  York  v. 
Griesa,  156  Fed.  398.  The  right  to  make  the 
order,  in  an  insurance  case,  was  recognized 
in  People  v.  Fitzgerald,  105  N.  Y.  146,  11  N. 


EXHUMATION 


1155 


EXONERATION 


E.  378,  59  Am.  Rep.  483;  Grangers  Life  Ins. 
Co.  v.  Brown,  57  Miss.  308,  34  Am.  Rep.  440; 
but  in  the  latter  case  the  order  was  refused 
on  the  ground  of  delay.  See  22  L.  R.  A.  (N. 
S.)  513,  note. 

EXIGENDARY.  In  English  Law.  An  offi- 
cer who  makes  out  exigents. 

EXIGENT,  EXIGI  FACIAS.  See  Out- 
lawry; Cora.  v.  Hagerman,  2  Va.  Gas.  244; 
Fit/.h.  N.  B.  23G;  Rawle,  Exmoor  55.  See 
Appeal  of  Coleman,  75  Pa.  450. 

EXIGENT  LIST.  A  phrase  used  to  indi- 
cate a  list  of  cases  set  down  for  hearing  up- 
on various  incidental  and  ancillary  motions 
and  rules. 

EXIGENTER.  An  officer  who  made  out 
exigents  and  proclamations.  Cowell.  The 
office  is  now  abolished.     Holthouse. 

EXIGIBLE.  Demandable;  that  which  may 
be  exacted. 

EXILIUM  (Lat).  In  Old  English  Law. 
Exile.  Setting  free  or  wrongly  ejecting 
bond-tenants.  Waste  is  called  exilium  when 
bondmen  (servi)  are  set  free  or  driven 
wrongfully  from  their  tenements.  Co.  Litt. 
536.  Destruction;  waste.  Du  Cange.  Any 
species  of  waste  which  drove  away  the  in- 
habitants, into  exile,  or  had  a  tendency  to 
do  so.  Bac.  Abr.  Waste  (a)  ;  1  Reeve,  Hist. 
Eng.  Law  386. 

EX  1ST  I M  ATI  0  (Lat).    The  reputation  of 

a  Roman  citizen.  The  decision  of  arbiters. 

Vicat,  Voc.  Jur.;  1  Mackeldey,  Civ.  Law  § 
123. 

EXISTING.  The  force  of  this  word  is 
not  necessarily  confined  to  the  present. 
Thus  a  law  for  regulating  "all  existing  rail- 
road corporations"  extends  to  such  as  are 
incorporated  after  as  well  as  before  its  pas- 
sage, unless  exception  is  provided  in  their 
charters;  Indianapolis  &  St.  L.  R.  Co.  v. 
Blackraan,  03  111.  117;  Lawrie  v.  State,  5 
Ind.  525 ;    Fox  v.  Edwards,  38  la.  215. 

EXIT  WOUND.  The  wound  made  in  com- 
ing out  by  a  weapon  which  has  passed 
through  the  body  or  any  part  of  it  2  Beck. 
Med.  Jur.  119. 

EX  IT  US  (Lat.).  An  export  duty.  Issue, 
child,  or  offspring.     Rent  or  profits  of  land. 

In  Pleading.  The  issue  or  the  end,  ter- 
minal ion  or  conclusion,  of  the  pleadings; 
so  called  because  an  issue  brings  the  plead- 
ings to  a  close.     3  Bla.  Cora.  314. 

EX  LEX  (Lat.).  An  outlaw.  Spelraan, 
Gloss. 

EXOINE.  In  French  Law.  An  act  or  in- 
strument iu  writing  which  contains  the  rea- 
sons why  a  party  in  a  civil  suit,  or  a  person 
accused,  who  has  been  summoned,  agreeably 
to  the  requisitions  of  a  decree,  does  not  ap- 
pear. Pothier,  1'rocCd.  Crini.,  s.  3,  art.  3. 
See  Essoin. 


EXONERATION.  The  taking  off  a  burden 
or  duty.  The  usual  use  of  the  word  is  in 
the  rule  in  the  distribution  of  an  Lntest 
estate  that  the  debts  which  he  himself  con- 
tracted and  for  which  In-  mortgaged  his  land 
as  security,  shall  be  paid  out  of  t li •  - 
estate  in  exoneration  of  the  real. 

But  when  the  |   with 

the  payment  of  a  mo  I  the  tin. 

Intestate  buys  it,  and  the  pur  made 

subject  to  it,  the  personal  estate  is  not  in 
that  case  to  be  applied  iu  exoneration  of  the 
real  estate;  2  Pow.  Mortg.  780;  Hurt  v. 
Reeves,  5  Hayw.  (Tenn.)  57;  Duke  of  i 
berland  v.  Codringtou,  3  Johns.  Ch.  (N.  V.  I 
229,  8  Am.  Dec.  492;  1 
n.  *64G;    Appeal  of  Birst,  92  Pa.  49L 

But  the  rule  for  exonerating  the  real  es- 
tate out  of  the  personal  does  not  apply 
against  specific  or  pecuniary  legatees,  nor 
the  widow's  right  to  paraphernalia,  and. 
with  reason,  not  against  the  interest  of 
itors;  2  Ves.  64 ;  1  P.  Wins.  693;  3  id.  367. 
See  26  Beav.  522;  Appeal  of  Clery.  35  Pa. 
54;  Canfield  v.  Bostwick,  21  Conn.  55a 

Like  the  right  of  contribution  between 
those  equally  liable  for  the  same  debt,  the 
right  of  exoneration  exists  between  debtors 
successively  liable.  A  surety  who  discharges 
an  obligation  is  entitled  to  look  to  the  prin- 
cipal for  reimbursement,  and  to  invoke  the 
aid  of  a  court  of  equity  for  this  put 
and  a  subsequent  surety,  who,  by  the  terms 
of  the  contract,  is  responsible  only  in  the 
case  of  the  default  of  the  principal  aud  a 
prior  surety,  may  claira  exoneration  at  the 
hands  of  either;  Bisph.  Eq.  §  331;  3  Pom. 
Eq.  Jur.  §  1416. 

As  to  exoneration  of  simple  contract  debts, 
see  1  Sm.  L.  Cas.,  9th  Am.  ed.  614. 

EX0NERETUR  (Lat.).  In  Practice.  A 
short  note  entered  on  a  bail-piece,  that  the 
bail  is  exonerated  or  discharged  in  i 
quence  of  having  fulfilled  the  condition  of  his 
obligation,  made  by  order  of  the  court  or  of 
a  judge  upon  a  proper  cause  being  shown. 
Seo  Recognizance. 

EXPATRIATION.  The  voluntary  act  of 
abandoning  one's  country  and  becoming  the 
citizen  or  subject  of  another. 

The  right  of  expatriation  is  the  right  of  a 
person  to  transfer  his  allegiance  from  the 
country  of  which  he  is  a  citizen  to  another 
country. 

This  right  has  been  much  discussed.  The 
question  has  been  settled  iu  the  United 
states  by  the  act  of  July  27,  1868,  which  de- 
clares the  right  Of  expatriation  to  be  the  in- 
herent right  of  all  people,  disavows  the  claim 
made  by  foreign  states  that  naturalized 
American  citizens  are  still  the  BUbjeCt 
sueh  states,  and  extends  to  such  naturalized 
citizens,  while  in  foreign  countries,  the  same 
protection  accorded  to  native-born  citizens. 
K.  s.  §s  v.>'.t'.>.  2000.  Tins  declaration  compre- 
hends our  own  citizens  as   well  as  those  of 


EXPATRIATION 


1156 


EXPECTANCY 


other  countries ;  14  Op.  Att'y.  Gen.  295.  Since 
the  passage  of  this  act,  the  United  States 
has  entered  into  treaties  with  nearly  all  the 
nations  of  Europe  by  which  the  contracting 
powers  mutually  concede  to  subjects  and 
citizens  the  right  of  expatriation  on  condi- 
tions and  under  qualifications.  And  in  case 
of  conflict  between  the  above  act  of  congress 
and  any  treaty,  it  would  seem  the  treaty 
must  be  held  paramount;  Morse,  Citizenship 
§  179.  See  Treaty.  To  be  legal,  the  expa- 
triation must  be  for  a  purpose  which  is  not 
unlawful  nor  in  fraud  of  the  duties  of  the 
emigrant  at  home. 

Most  foreign  governments  permit  their  cit- 
izens to  become  naturalized  in  other  coun- 
tries, but  generally  upon  condition  of  the 
prior  fulfilment  of  military  service.  Hershey 
243-244.  In  Switzerland  the  consent  of  the 
canton  is  required,  and  a  like  rule  exists  in 
Japan;  Meilli,  Intern.  C.  &  C.  121. 

A  citizen  may  acquire  in  a  foreign  coun- 
try commercial  privileges  attached  to  his 
domicil,  and  be  exempted  from  the  operation 
of  commercial  acts  embracing  only  persons 
resident  in  the  United  States  or  under  its 
protection.  See  Dohictl;  Naturalization. 
See  also  Miller,  Const.  U.  S.  2S5,  297 ;  Mur- 
ray v.  The  Charming  Betsy,  2  Cra.  (U.  S.) 
120,  2  L.  Ed.  208;  2  Kent  36;  Grotius,  b.  2, 
s.  5,  s.  24;  Puffendorff,  b.  8,  c.  11,  ss.  2,  3; 
Vattel,  b.  1,  c.  19,  ss.  218,  223,  224,  225 ;  U.  S. 
v.  Gillies,  1  Pet.  C.  C.  161,  Fed.  Cas.  No.  15,- 
200 ;  Ainslie  v.  Martin,  9  Mass.  461 ;  21  Am. 
L.  Reg.  77 ;  11  id.  447 ;  3  Can.  L.  T.  463,  511 ; 
25  Law  Mag.  &  Rev.  124 ;  Lawrence's  Wheat. 
Int.  L.  891. 

By  act  of  March  2,  1907,  a  citizen  who  is 
naturalized  in  any  foreign  state  is  expatri- 
ated; also  a  naturalized  citizen  who  has  re- 
sided two  years  in  his  native  state  or  five 
years  in  any  other  foreign  state,  except  up- 
on presenting  satisfactory  evidence  to  a  dip- 
lomatic or  consular  agent  under  the  rules  of 
the  state  department,  and  no  citizen  can  be 
expatriated  in  time  of  war. 

A  Pennsylvania  court,  following  her  con- 
stitution framed  by  Franklin,  first  declared 
the  right  of  expatriation  an  original  and  in- 
defeasible right  of  man.  Baldwin's  Modern 
Political  Institutions  241,  citing  Murray  v. 
McCarty,  2  Munf.  (Va.)  393;  Wharton's 
State  Trials  652. 

For  the  doctrine  of  the  English  courts  on 
this  subject,  see  1  Barton,  Conv.  31,  note; 
Vaugh.  227,  281 ;  7  Co.  16 ;  Dy.  2,  224,  298  &, 
300  b;  2  P.  Wms.  124;  1  Hale,  PI.  Cr.  68;  1 
Wood,  Conv.  382;  Westl.  Priv.  Int.  Law; 
Story,  Confl.  Laws;  Cockburn,  Nationality. 
See  Alien;  Naturalization. 

EXPECTANCY.  Contingency  as  to  pos- 
session. That  which  is  expected  or  hoped 
for.  Frequently  used  to  imply  an  estate  in 
expectancy. 

Estates  are  said  to  be  in  possession  when  the  per- 
Gon  having  the  estate  is  in  actual  enjoyment  of 
that  in  which  his  estate  subsists,  or  in  expectancy, 


when  the  enjoyment  is  postponed,  although  the  es- 
tate or  interest  has  a  present  legal  existence. 

A  bargain  in  relation  to  an  expectancy  is» 
in  general,  considered  invalid,  unless  the 
proof  of  good  faith  is  strong ;  2  Ves.  157 ;  1 
Bro.  C.  C.  10;  Jeremy,  Eq.  Jur.  397;  Mc- 
Call's  Adm'r  v.  Hampton,  98  Ky.  166,  32  S. 
W.  406,  33  L.  R.  A.  266,  56  Am.  St.  Rep.  335. 

But  it  is  well  settled  in  equity  that  a  deed 
which   purports   to   convey   property,    which 
is  in  expectancy  or  to  be  subsequently  ac- 
quired, or  which  is  not  the  subject  of  grant 
at  law,  though  inoperative  as  a  grant  or  con- 
veyance,   will    be    upheld    as    an    executory 
agreement,  and  enforced  according  to  its  in- 
tent, if  supported  by  a  valid  consideration, 
whenever  the   grantor  is  in  a  condition  to 
give  it  effect;  per  Strong,  J.,   in  Bayler  v. 
Com.,    40    Pa.    37,    43,    80    Am.    Dec.    551; 
Varick   v.  Edwards,  11  Paige   (N.   Y.)    290; 
McWilliams  v.   Nisly,  2  S.  &  R.    (Pa.)    507, 
7  Am.  Dec.  654;  Bailey  v.  Hoppin,  12  R.  I. 
560,  508 ;  10  H.  L.  Cas.  189,  211 ;  East  Lewis- 
burg  Lumber  &  Mfg.  Co.  v.  Marsh,  91  Pa.  96 ; 
Ruple  v.  Bindley,  id.  296 ;  Fritz's  Estate,  160 
Pa.  156,  28  Atl.  642 ;  Hudson  v.  Hudson,  222 
111.  527,  78  N.  E.  917 ;  Hale  v.  Hollon,  90  Tex. 
427,  39  S.  W.  287,  36  L.  R.  A.  75,  59  Am.  St. 
Rep.  819;   Betts  v.  Harding,  133  la.  7,   109 
N.  W.  1074 ;  Johnson  v.  Johnson,  170  Mo.  34, 
70  S.  W.  241,  59  L.  R.  A.  748.     So  it  is  said 
that  an  estate  in  expectancy,  though  contin- 
gent,  is  a  fair  subject  of  contract,  and   an 
agreement  by   an  expectant  heir  in  respect 
thereto,  fairly  made  upon  valuable  consider- 
ations, will  be  enforced  in  equity;  Parsons 
v.   Ely,   45  111.   232;    Varick   v.    Edwards,    1 
Hoffm.   Ch.    (N.   Y.)   382;    McDonald   v.  Mc- 
Donald, 58  N.  C.  211,  75  Am.  Dec.  434;   a 
mere   agreement   to    appropriate  the   money 
when  received  from  a  legacy  will  not  operate 
as  an  assignment  of  it;  Appeal  of  Wylie,  92 
Pa.   196.     An  executory  agreement   between 
the  husbands  of  two  expectant  legatees   to 
divide  equally  what  should  be  left  to  either 
of  them  has  been  enforced;  2  P.  Wms.  182; 
2  Sim.  183.    Such  assignments  are  prohibited 
by  statute  in  California ;  Cal.  Civ.  Code  700, 
1045 ;   In  re  .Wickersham's   Estate,   138   Cal. 
355,  70  Pac.  1076,  71  Pac.  437 ;  and  in  Louisi- 
ana;   Succession  of  Jacobs,  104  La.  447,  29 
South.   241;   and   in  some  states  have   been 
held  unenforceable;  thus  an  attempted  con- 
veyance by  heirs-apparent  of  their  interest 
in   the  property   of   an  ancestor,   even  with 
the   latter's    consent,    has    been    held   void; 
Wheeler's  Ex'rs  v.   Wheeler,   2  Mete.    (Ky.) 
474,    74   Am.   Dec.    421;    McCall's    Adm'r ,  v. 
Hampton,  98  Ky.   166,  32   S.  W.  406,   33  L. 
R.  A.  206,  56  Am.  St.  Rep.  335 ;  on  the  ground 
that  it  is  essential  to  the  legal  validity  of  the 
thing  sold  that  it  have  an  actual  or  poten- 
tial existence,  and  that  a  mere  possibility  or 
contingency,  not  founded  on  a  right  or  cou- 
pled with  an  interest,  cannot  be  the  subject 
of   a    sale   or   assignment;    Spears   v.    Spaw, 
118  S.  W.  275,  25  L.  R.  A.   (N.  S.)   436;  aud 


EXPECTANCY 


1157 


EXPECTANCY 


on  the  ground  that,  as  no  one  can  be  the 
heir  of  a  living  person,  a  transaction  based 
on  the  idea  of  a  future  right  to  the  succes- 
sion of  a  living  person  is  devoid  of  <■■ 
eration  and  can  have  no  effect,  notwithstand- 
ing the  agreement  is  valid  under  the  law  of 
a  foreign  state  where  it  was  made ;  Cox  v. 
Von  Ahlefeldt,   105   La.  543,   30   South.   175. 

An  assignment  without  consideration  by  a 
married  woman  of  an  expectant  interest  in 
her  father-in-law's  estate,  which  was  con- 
tingent upon  her  surviving  her  husband,  in 
order  to  secure  her  husband's  indebtedness, 
is  not  valid  at  law,  although,  when  based 
upon  a  sufficient  consideration,  it  might  be 
enforced  in  equity  when  the  interest  became 
vested  in  the  assignor ;  In  re  Baeder's  Es- 
tate, 224  Pa.  452,  73  Atl.  915;  and  see,  to 
the  same  effect,  Bayler  v.  Com.,  40  Pa.  37, 
80  Am.  Dec.  551. 

That  a  grant  by  an  expectant  is  simply  a 
covenant  to  convey ;  1  P.  Wms.  3S7  (Lord 
Chancellor  Hardwicke) ;  McDonald  v.  Mc- 
Donald, 58  N.  C.  211,  75  Am.  Dec.  434;  and 
that  chancery  will  give  effect  to  the  assign- 
ment of  an  expectancy  or  possibility,  not  as 
a  grant,  but  as  a  contract  entitling  the  as- 
signee to  a  specific  performance  as  soon  as 
the  assignor  has  the  power  to  perform  it; 
are  held  too  well  established  to  be  disregard- 
ed; McDonald  v.  McDonald,  58  N.  C.  211, 
75  Am.  Dec.  434;  Philadelphia,  W.  &  B.  R. 
Co.  v.  Woelpper,  64  Pa.  366,  3  Am.  Rep.  596. 
Such  a  sale  may  be  enforced  as  against  the 
heir  through  the  doctrine  of  estoppel  spring- 
ing from  his  covenants  contained  in  the 
deed  of  assignment;  Johnson  v.  Johnson,  170 
Mo.  34,  70  S.  W.  241,  59  L.  R.  A.  748,  citing 
Steele  v.  Frierson,  85  Tenn.  430,  3  S.  W. 
049;  Bohon  v.  Bohon,  78  Ky.  408;  Somes  v. 
Skinner,  3  Pick.  (Mass.)  52;  Robertson  v. 
Wilson,  38  N.  H.  48;  House  v.  McCormick, 
57  N.  Y.  310;  Habig  v.  Dodge,  127  Ind.  31, 
25  N.  E.  182;  followed  and  approved;  Jer- 
auld v.  Dodge,  127  Ind.  600,  25  N.  E.  186; 
Fairbanks  v.  Williamson,  7  Greenl.  (Me.) 
96;  Stover  v.  Eycleshimer,  46  Barb.  (N.  Y.) 
84;  Rosenthal  v.  Mayhugh,  33  Ohio  St  155. 

The  general  doctrine  is  undoubtedly  to 
treat  such  an  assignment  as  a  contract  en- 
forcible  in  equity,  but  Pomeroy  considers  it 
inadequate ;  3  Pom.  Eq.  Jur.  §  12S7,  n.  2 ; 
and  prefers  the  theory  that  it  is  an  actual 
transfer  of  the  ownership  of  an  equitable 
property  right  which  ripens  into  an  abso- 
lute title ;  id.  §  1271. 

Equity  will,  in  general,  relieve  a  party 
from  unequal  contracts  for  the  sale  or  pledge 
of  expectancies,  as  they  are  in  fraud  of  the 
ancestor.  See  2  P.  Wms.  1S2;  2  Sim.  is:;. 
192;  5  id.  524;  1  Sto.  Eq.  Jur.  §  342.  Bui 
relief  will  be  granted  only  on  equitable 
terms;  for  he  who  seeks  equity  must  do 
equity ;  id. 

In  dealing  with  such  cases,  the  rule  ap- 
plied by  courts  of  equity  is,  as  laid  down  in 
Chesterfield   v.   Janssen,   to   scrutinize   them 


carefully  according  to  the  circumstances  of 
each;  2  Ves.  Sr.  125;  and.  if  upon  inade- 
quate consideration,  or  otherwise  fraudulent, 
they  will  be  relieved  against  and  wholly  or 
partially  set  aside;  id.;  1  L.  Cas.  in  Eq.  77::; 
2  Pom.  Eq.  Jur.  §  953,  and  note,  where  the 
cases  are  collected. 

In  a  leading  English  case  the  principle  is 
thus  stated:  "The  court  will  relieve  'ex- 
pectant heirs'  against  bargains  relating  to 
their  reversionary  or  expectant  Interest  in 
cases  of  undervalue,  of  weakness  due  I 
or  poverty,  and  of  the  absence  of  ind. 
ent  advice.  But  all  these  drcumsi 
must  co-exist  in  order  to  entitle  them  to  re- 
lief;"  L.  R.  8  Ch.  484.  In  that  case  it  was 
held  that  the  repeal  of  the  usury  laws  in 
England  has  not  altered  the  doctrine  by 
which  the  court  of  chancery  affords  relief 
against  improvident  and  extravagant  bar- 
gains. In  the  opinion  Lord  Selborne  dire-  ted 
attention  to  the  fact  that  concealment  was 
usually  a  feature  of  these  cases,  but  agreed 
with  Lord  St  Leonards  that  it  was  not  an 
indispensable  condition  of  equitable  relief; 
Sugd.  Vend.  &  Pur.,  11th  ed.  310;  dii: 
as  to  this  point,  with  Lord  Brougham ;  '1 
Myl.  &  K.  456.  The  independent  advice  of  a 
father  seems  to  rebut  the  presumption  of 
fraud;  2  App.  Cas.  814;  but  old  age  or  youth 
increases  it;  2  Giff.  157;  4  D.  J.  &  S 
or  poverty  and  ignorance;  L.  R.  10  CL 
40  Ch.  D.  312.  In  the  first  of  those  two 
cases,  Jessel,  M.  R.,  thus  defined  the  term 
"expectant  heir" :  "The  phrase  is  used  nor 
in  its  literal  meaning,  but  as  including 
one  who  has  either  a  vested  remainder,  or  a 
contingent  remainder  in  a  family  property, 
including  a  remainder  in  a  portion,  as  will 
as  a  remainder  in  an  estate,  and  every  one 
who  has  the  hope  of  succession  to  the  prop- 
erty of  an  ancestor,  either  by  reason  of  his 
being  the  heir-apparent  or  presumptive,  or 
by  reason,  merely,  of  the  expectation  of  a 
devise  or  bequest  on  account  of  the  sir, 
or  presumed  affection  of  his  ancestor  or  re- 
lation. More  than  this,  the  doctrine  as  to 
expectant  heirs  has  been  extended  to  all  re- 
versioners and  remaindermen.  So  that  the 
doctrine  not  only  included  the  class  men- 
tioned, who  in  some  popular  sense  might  be 
called  'expectant  heirs,'  but  also  all  remain- 
dermen and  reversioners." 

The  principle  has  been  held  to  include 
younger  sons  of  peers;  15  Ch.  D.  679.  As 
to  what  is  a  reversionary  interest  for  this 
purpose,  see  11  Eq.  265,  276;  I..  EL  - 
542;  and  as  to  what  is  independent  advice, 
see  10  Eq.  641,  in  which  the  borrower,  though 
accompanied  by  a  friend  who  was  a  solicitor 
but  did  not  act  as  such,  or  know  the  terms 
of  the  contract,  was  held  not  to  have  inde- 
pendent advice. 

Undervaluation    is   not   alone  a   suffl 
ground  for  |   aside  a  contract,  convey- 

ance, or  mortgage  of  a  reversion,  otherwise 


EXPECTANCY 


1158 


EXPERTS 


fair;  Stat.  31  Vict.  c.  4;  2  Ch.  Cas.  13G;  35 
Beav.  570;  32  L.  J.  Ch.  201. 

By  the  civil  law,  such  contracts  are  held 
contra  bonos  mores,  and  they  are  forbidden 
in  general  terms;  Code  2,  3,  de  pactis  30; 
and  in  the  French  code  it  is  forbidden  to  sell 
the  succession  of  a  living  person,  even  with 
his  consent;  art.  1600;  the  same  is  the  rule 
of  the  Italian  code;  art  1460;  and  of  that 
of  Austria  ;  §  879. 

As  to  expectancy  of  life,  see  Life  Tables. 

See,  generally,  2  Lead.  Cas.  in  Eq.,  4th 
Am.  ed.  1530,  1559,  1605;  3  Pom.  Eq.  Jur. 
ch.  8,  sec.  3;  Brett,  L.  Cas.  Mod.  Eq.  3d  ed. 
69,  n. ;  9  Harv.  L.  Rev.  476 ;  Catching  Bab- 
gain  ;  Post  Obit. 

EXPECTANT.  Contingent  as  to  enjoy- 
ment. 

EXPEDITATI0N.  A  cutting  off  the  claws 
or  ball  of  the  fore-feet  of  mastiffs,  to  pre- 
vent their  running  after  deer ;  a  practice  for 
the  preservation  of  the  royal  forests.  Cart, 
de  For.  c.  17;  Spelman,  Gloss.;  Cowell.  See 
Cotjbt  of  Regabd. 

EXPEND1T0RS.  Paymasters.  Those 
who  expend  or  disburse  certain  taxes.  Es- 
pecially the  sworn  officer  who  supervised  the 
repairs  of  the  banks  of  the  canals  in  Rom- 
ney  Marsh.     Cowell. 

EXPENS/E  LITIS  (Lat).  Expenses  of 
the  suit;  the  costs,  which  are  generally  al- 
lowed to  the  successful  party. 

EXPERTS  (Lat  experti,  instructed,  prov- 
ed by  experience).  Persons  selected  by  the 
court  or  parties  in  a  cause,  on  account  of 
their  knowledge  or  skill,  to  examine,  esti- 
mate, and  ascertain  things  and  make  a  re- 
port of  their  opinions.     Merlin,  Rupert. 

Witnesses  who  are  admitted  to  testify 
from  a  peculiar  knowledge  of  some  art  or 
science,  a  knowledge  of  which  is  requisite  or 
of  value  in  settling  the  point  at  issue. 

Persons  professionally  acquainted  with  the 
science  or  practice  in  question.  Strickl.  Ev. 
408.  Persons  conversant  with  the  subject- 
matter  on  questions  of  science,  skill,  trade, 
and  others  of  like  kind.     Best,  Ev.  §  346. 

The  qualification  of  a  witness  as  an  expert 
is  largely  within  the  discretion  of  the  trial 
judge;  Mutual  Fire  Ins.  Co.  of  New  York 
v.  Alvord,  61  Fed.  752,  9  C.  C.  A.  623;  Bal- 
lard v.  R.  Co.,  126  Pa.  141,  19  Atl.  35 ;  Sloeo- 
vich  v.  Ins.  Co.,  108  N.  Y.  61,  14  N.  E.  802 ; 
City  of  Fort  Wayne  v.  Coombs,  107  Ind.  84, 
7  N.  E.  743.  Such  a  witness  may  be  asked 
whether  the  examination  made  by  him  was 
superficial  or  otherwise ;  Northern  Pac.  R. 
Co.  v.  Urlin,  158  U.  S.  271,  15  Sup.  Ct.  840, 
b9  L.  Ed.  977 ;  he  need  not  be  engaged  in  his 
profession,  it  is  sufficient  that  he  has  studied 
it;  Tullis  v.  Kidd,  12  Ala.  648. 

Dealers  in  precious  stones  are  not  compe- 
tent to  testify  to  the  uses  of  imitation  pre- 
cious stones ;  Lorsch  v.  U.  S.,  119  Fed.  476. 
One  who  has  been  a  practicing  physician  for 


eight  years  is  competent  to  testify  as  an  ex- 
pert whether  a  death  was  caused  by  arsenic, 
though  he  never  had  a  case  of  arsenical 
poisoning;  State  v.  Kammel,  23  S.  D.  465, 
122  N.  W.  420. 

Experts  alone  can  give  an  opinion  based 
on  facts  shown  by  others,  assuming  them  to 
be  true;  State  v.  Potts,  100  N.  C.  457,  6  S. 
E.  657. 

"It  is  not  sufficient  to  warrant  the  intro- 
duction of  expert  testimony  that  the  wit- 
ness may  know  more  of  the  subject  of  in- 
quiry and  may  better  understand  and  ap- 
preciate it  than  the  jury ;  but  to  warrant  its 
introduction,  the  subject  of  the  inquiry  must 
be  one  relating  to  some  trade,  profession, 
science,  or  art  in  which  persons  instructed 
therein  by  study  and  experience  may  be  sup- 
posed to  have  more  skill  and  knowledge  than 
jurors  of  average  intelligence  may  generally 
be  presumed  to  have ;  "  Ferguson  v.  Hubbell, 
97  N.  Y.  511,  49  Am.  Rep.  544 ;  and  not  only 
may  they  testify  to  facts  but  they  may  give 
their  opinions  on  them  as  experts ;  Van 
Wycklen  v.  City  of  Brooklyn,  118  N.  Y.  429, 
24  N.  E.  179.  The  practical  result  of  the  rule 
admitting  such  testimony  is  far  from  satis- 
factory ;  its  principal  defect  being  that  such 
witnesses  are  usually  called  because  their 
known  theories  are  understood  to  support 
the  fact  which  the  party  calling  them  wishes 
to  prove ;  Grigsby  v.  Water  Co.,  40  Cal.  405. 
"They  come,"  says  Lord  Campbell,  speaking 
of  scientific  witnesses,  "with  a  bias  on  their 
minds  to  support  the  cause  in  which  they 
are  embarked,  and  hardly  any  weight  should 
be  given  to  their  evidence ;  "  10  CI.  &  F.  154. 
It  is  said  to  be  generally  safer  to  take  the 
judgments  of  unskilled  jurors  than  the  hired 
and  biassed  opinions  of  experts ;  Ferguson 
v.  Hubbell,  97  N.  Y.  511,  49  Am.  Rep.  544. 

A  jury  is  not  bound  by  the  opinions  of  ex- 
perts on  an  issue  of  insanity ;  U.  S.  v.  Chis- 
holm,  149  Fed.  284 ;  Mitchell  v.  State,  6  Ga. 
App.  554,  65  S.  E.  326 ;  but  should  form  their 
own  judgment  from  all  the  proof  in  the 
case ;  U.  S.  v.  Chisholm,  153  Fed.  808.  It  has 
been  said  that  they  "are  generally  mere  ar- 
guments in  behalf  of  the  side  calling  them"  ; 
Ideal  Stopper  Co.  v.  Seal  Co.,  131  Fed.  249, 
65  C.  C.  A.  436;  and  such  testimony  is  fre- 
quently characterized  by  the  courts  as  of 
little  value;  American  Middlings  Purifier  Co. 
v.  Christian,  3  Bann.  &  A.  42,  Fed.  Cas.  No. 
307;  King  v.  Cement  Co.,  6  Fish.  336,  Fed. 
Cas.  No.  7,798 ;  L.  R.  6  Ch.  Div.  415,  n. 

On  the  other  hand,  the  necessity  of  such 
testimony  in  certain  classes  of  cases,  par- 
ticularly those  involving  patent  law,  is  thus 
set  forth  in  3  Rob.   Pat.   §  1012: 

"Notwithstanding  the  strictures  passed  upon  ex- 
pert testimony  by  many  jurists  on  each  side  of  the 
Atlantic,  and  the  truth  of  the  assertions  by  which 
these  censures  have  been  justified,  it  is  still  certain 
that  in  most  patent  cases  expert  evidence  is,  and 
must  always  be,  indispensable.  That  the  expert  is 
consulted  before  he  is  summoned  as  a  witness  ;  that 
when  his  opinion  is  unfavorable  to  the  party  who 
consults    him  he  Is  not  produced  in  court,  at  least 


EXPERTS 


1159 


EXPERTS 


on  that  side  of  the  case ;  that  when  called  as  a 
witness  his  testimony  is  expected  to  support,  and 
generally  does  support,  the  claims  of  the  liti. 
whose  behalf  he  is  presented,— are  no  doubt  true  ; 
but  this  is  only  what  occurs  in  every  other  trial 
where  counsel  have  properly  prepared  their  case. 
The  error  lies  with  those  who  ascribe  judicial  func- 
tions to  the  patent-expert,  and  demand  of  him  such 
freedom  from  partisanship  as  the  exercise  of  judi- 
cial powers  requires.  That  there  are  experts  in 
other  departments  of  affairs  upon  whose  opinion 
the  court  is  forced  to  rely  as  the  foundation  of  its 
own  judgments,  because  incapable  of  forming  an 
opinion  for  itself,  and  that  such  experts  consequent- 
ly fill  the  places  of  judges  and  should  be  beyond  the 
influence  and  control  of  parties,  must  be  conceded. 
But  such  is  not  the  case  with  patent-experts,  whose 
opinion  Is  received  in  evidence  only  in  connection 
with  the  reasons  on  which  it  is  based,  and  is  to  be 
accepted  or  rejected  by  the  jury  according  to  their 
own  view  of  its  fallacy  or  truth.  The  patent-expert, 
considered  in  his  real  character,  is  an  explorer, 
gifted  with  unusual  powers  of  discernment  and  ap- 
prehension ;  a  chronicler,  trained  to  preserve  the 
recollection  of  the  essential  attributes  of  things  ;  an 
expositor,  fitted  to  embody  those  essential  attributes 
in  accurate  and  intelligible  language ;  a  monitor, 
able  to  suggest  the  conclusions  which  follow  from 
the  premises  he  has  described.  His  relation  to  the 
jury  Is  not  unlike  that  which  counsel  sustain  to  the 
court,  as  guides  to  a  correct  decision  of  the  issues 
severally  confided  to  their  judgments,— the  one 
pointing  out  facts  and  applying  them  in  support  of 
the  claims  advanced  by  his  employer,  as  the  other 
produces  his  authorities  and  applies  them  to  the 
maintenance  of   his   claims  of   law." 

Such  assistance,  it  is  suggested,  it  would 
not  be  wise  in  any  tribunal  to  undervalue 
or  reject ;  3  Rob.  Pat.  §  1012. 

The  fact  that  the  opinions  of  experts  in 
patent  cases  are  often  diametrically  opposite 
does  not  necessarily  discredit  their  testi- 
mony but  merely  emphasizes  the  fact  that 
their  opinions  are  to  be  regarded  as  opinions, 
merely,  and  a  decision  rendered  between 
them;  Conover  v.  Roach,  4  Fish.  12,  Fed. 
Cas.  No.  3,125.  A  patent  expert  is  in  effect 
an  "auxiliary  counsel"  who  argues  upon  the 
law  and  the  facts;  Steam-Gauge  &  Lantern 
Co.  v.  Mfg.  Co.,  28  Fed.  G18. 

The  practice  of  introducing  a  large  number 
of  expert  witnesses  in  patent  causes  is  not  to 
be  commended,  one  competent  witness  on  each 
side  being  usually  sufficient  to  insure  a  full 
and  fair  elucidation  of  what  is  recondite  in 
the  case;  American  Stove  Co.  v.  Foundry  Co., 
15S  Fed.  978,  86  C.  C.  A.  1S2.  While  expert 
evidence  is  not  conclusive  on  the  jury  ;  Many 
v.  Sizer,  1  Fish.  17,  Fed.  Cas.  No.  9,05G ;  and 
is  to  be  judged  by  the  same  standards  as  or- 
dinary evidence;  May  v.  Fond  du  Lac  Coun- 
ty, 27  Fed.  691;  Carter  v.  Baker,  4  Fish.  404, 
Fed.  Cas.  No.  2,472,  1  Sawyer  512;  Page  v. 
Ferry,  1  Fish.  298,  Fed.  Cas.  No.  10,662; 
and  to  be  accorded  by  the  jury  such  weight 
as  they  see  fit;  Johnson  v.  Koot,  1  Fish.  351, 
Fed.  Cas.  No.  7,411;  Allen  v.  Hunter,  0 
McLean  303,  Fed.  Cas.  No.  225;  Brooks  v. 
Jenkins,  3  McLean  432,  Fed.  Cas.  No.  1,- 
953;  it  is  nevertheless  of  great  value  in 
patent  cases;  French  v.  Rogers.  1  Fish. 
133,  Fed.  Cas.  No.  5,103;  Carr  v.  Rice,  1  Fish. 
i9S,  Fed.  Cas.  No.  2,440;  Morris  v.  Barrett, 
I  Fish.  461,  Fed.  Cas.  No.  9,827;    Parker  v. 


Stiles,  5  McLean    44,    Fed-   Cas.   No.   II 
Allen  v.  Limit.  ::  Sto.  742  ,  JIM; 

Brooks  v.  Jenkins,  3  McLean  432,  Fed.  Cas. 
No.  1,953. 

It  has  been  held  that,  without  explanatory 
evidence,  the  defense  of  anticipation  will  not 
be  considered  in  a  patent  ease,   where  it  is 
supported  by  priur  patei 
machinery;    Bell  v.  MacKinnon,  148 
7'J  C.  C.  A.  163. 

The  value  of  such   testimony  di 
the   skill,   not  the  number;    Bl 
nell,  4  McLean  70,  Fed.  Cas.  No.   1,946;  and 
is  to  be  measured  by   their   re  Q.  S. 

Annunciator  v.  Sanderson,  3  Blatchf.  184, 
Fed.  Cas.  No.  16,790;  Whipple  v.  Baldwin 
Mfg.  Co.,  4  Fish.  29,  Fed.  Cas.  No.  17,514; 
Parhain  v.  American  Mfg.  Co.,  4  Fish.  468, 
Fed.  Cas.  No.  10,713. 

There  are  said  to  be  two  classes  of  patent 
experts,  scientific  and  mechanical,  each  hav- 
ing a  distinct  sphere.  The  scientific  expert 
is  one  familiarized  by  his  studies  ami  ex- 
periments with  the  principles  of  a  » 
and  qualified  to  understand,  distinguish,  and 
explain  the  subject-matter  and  application 
thereto  of  such  science.  His  services  are  in- 
voked to  determine  the  character  and  scope 
of  an  invention  with  reference  to  the  i 
tion  of  the  art  at  the  date  of  its  production. 
His  testimony  is  directed  to  the  qui 
whether  the  alleged  invention  is  the  result 
of  an  inventive  act;  whether  it  embrac 
excludes  a  different  invention  or  is  substan- 
tially the  same  in  principle,  function,  or  ef- 
fect with  any  other.  The  mechanical  expert 
represents  the  skilled  workman  in  his  art, 
who  by  practical  training  in  it  could  compre- 
hend and  apply  to  it  various  instruments 
and  methods.  His  evidence  will  bear  opon 
the  defence  of  want  of  novelty,  prior  patent, 
inutility  of  the  invention,  or  ambiguity  of 
the  description  in  the  specification  of  the 
patent.  One  person  may  appear  in  both  ca- 
pacities. 3  Rob.  Pat.  §  1013.  See  Curt.  Pat. 
§  479. 

Expert  testimony  is  admissible  upon  ques- 
tions for  the  court  as  well  as  upon  those  for 
the  jury,    where   it   can   be   properly   applied 
to  the  subject-matter  of  the  question  as  the 
construction   of   the   patent   and   whether   a 
prior   patent    covers   the    same  invention;    .". 
Rob.  Pat  §  1014.     In  dealing  with  sue!. 
tions  the  court  is  at  liberty  to  admit  expert 
evidence,  but  cannot  be  compelled  to  i 
and  it  is  not  error  to  refuse  it;  Id.;  Day  v. 
Btellman,  l  Fish.  487,  Fed.  « 
Winans  v.  R.  Co..  21   Bow.   (U.  S.)  88,  16  L. 
Ed.  68 

The  opinions  of  experts  are  admissible  to 
prove  insanity;   U.  S.   V.  Chlsholm,    153 

to  prove  indebtedness  by  the  general  re- 
sults shown  by  books  of  account;  Brown  v. 
I.  S.,  1  l-  Fed.  1.  73  C.  C.  A.  1S7;  to  show 
whether  a  writing  is  genuine  or  disguised; 
Pinker  v.  U.  S.,  151  Fed.  755,  81  0.  C.  A. 
379;  or  whether  a  child  had  passed  through 


EXPERTS 


1160 


EXPERTS 


the  full  period  of  gestation  based  upon  the 
appearance   of   the  child  at   the  age  of   13 
months ;  People  v.  Johnson,  70  111.  App.  634 ; 
or  the  cause  of  a  death  from  facts  stated  by 
other  witnesses  and  without  personal  exami- 
nation; State  v.  Kammel,  23  S.  D.  465,  122 
N.  W.  420 ;  but  such  evidence  is  inadmissible 
to  destroy  the  plain  and  obvious  meaning  of 
a  contract  where  the  words  used  are  plain 
and  unambiguous;  Bowers  Dredging  Co.   v. 
U.  S.,  211  U.  S.  176,  29  Sup.  Ct.  77,  53  L.  Ed. 
136;  nor  is  it  admissible  upon  the  question 
of  damages;    Lincoln   v.   R.    Co.,   23   Wend. 
(N.  Y.)  425;   Bain  v.  Cushman,  60  Vt  343, 
15  Atl.  171 ;  Chandler  v.  Bush,  84  Ala.  102, 
4  South.  207;  nor  as  to  whether  they  were 
caused    by   negligence;    East   Tennessee,    V. 
&  G.  R.  v.  Wright,  76  Ga.  532;  International 
&  G.  N.  Ry.  Co.  v.  Kuehn,  2  Tex.  Civ.  App. 
210,  21   S.  W.  58;   Hankins  v.  Watkins,   77 
Hun  360,  28  N.  Y.  Supp.  867.     See  Opinion. 
It  has  been  a  matter  of  grave  discussion 
whether  an  expert  is   bound   to   testify   on 
matters  of  opinion  without  extra  compensa- 
tion, the  weight  of  decisions  being  that  he 
is  not  bound   to  do  so ;  1   C.   &  K.  25;  Ex 
parte  Roelker,    Sprague  276,  Fed.   Cas.   No. 
11,995;    Dills    v.    State,    59    Ind.    15;    Clark 
County  v.    Kerstan,   60  Ark.   50S,   30    S.   W. 
1040 ;  contra,  Ex  parte  Dement,  6  Cent.  L.  J. 
11;  U.  S.  v.  Cooper,  21  D.  C.  491;  Buchman 
v.  State,  59  Ind.  1,  26  Am.  Rep.  75 ;  Dills  v. 
State,  59  Ind.  15;  6  So.  Law  Rev.  706.     In 
the  absence  of  statutory  authority,  an  expert 
for  the  state  cannot  demand  extra  compensa- 
tion, at  least  when  not  compelled  to  make 
any  preliminary  examination  or  preparation, 
or   to  attend   and   listen   to   the   testimony; 
Flinn  v.  Prairie  County,  60  Ark.  204,  29  S. 
W.  459,  27  L.  R.  A.  009,  46  Am.  St.  Rep.  168 ; 
and  when  no   demand  is  made   in  advance 
for  special  compensation,  he  can  recover  only 
the  statutory  witness  fees;  Board  of  Com'rs 
of  County  of  Larimer  v.  Lee,  3  Colo.  App. 
177,  32  Pac.  841;  Tiffany  v.  Iron  Works,  59 
Misc.  113,  109  N.  Y.  Supp.  754.    When  an  ex- 
pert is  required  to  make  a  preliminary  ex- 
amination or  to  prepare  specially  for  his  tes- 
timony, he  is  allowed  extra  compensation  in 
addition  to  the  ordinary  witness  fees;  Kel- 
ler v.  Harrison,  151  la.  320,  128  N.  W.  851, 
131  N.  W.  53,  Ann.  CaS.  1913A,  300 ;  Gordon 
v.  Conley,  107  Me.  286,  78  Atl.  365,  33  L.  R. 
A.    (N.    S.)    336;    Burnett   v.    Freeman,    125 
Mo.   App.   683,   103   S.   W.   121;    Schofield   v. 
Little,  2  Ga.  App.  286,  58  S.  E.  666;  Philler 
v.  Waukesha  County,  139  Wis.  211,  120  N. 
W.  S29,  25  L.  R.  A.  (N.  S.)   1040,  131  Am.  St. 
Rep.  1055,  17  Ann.  Cas.  712 ;  and  it  has  been 
held  that  a  physician  testifying  as  an  expert 
comes  within  such  rule;  People  v  Board  of 
Sup'rs,   148  App.   Div.  5S4,  132  N.  Y.   Supp. 
80S;  but  usually  a  physician  is  required  to 
give  expert  testimony  without  extra  compen- 
sation ;  People  v.  Conte,  17  Cal.  App.  771,  122 
Pac.  450,  457;  State  v.  Bell,  212  Mo.  Ill,  111 
S.  W.  24 ;  North  Chicago  St.  R.  Co.  v.  Zeiger, 


78  111.  App.  463,  affirmed  in  182  111.  9,  54  N.  E. 
1006,  74  Am.  St.  Rep.  157;  especially  when 
the  physician  is  attending  professionally  one 
of  the  parties  ;  Anderson  v.  Ry.  Co.,  103  Minn. 
184,  114  N.  W.  744 ;  Burnett  v.  Freeman,  134 
Mo.  App.  709,  115  S.  W.  488.  It  is  held 
that  an  expert  who  testifies  on  a  subject  re- 
quiring special  knowledge  and  skill  is  en- 
titled only  to  the  statutory  fee;  Main  v. 
Sherman  County,  74  Neb.  .  155,  103  N.  W. 
1038 ;  and  so  where  a  witness  had  knowledge 
common  to  persons  in  a  particular  neighbor- 
hood, not  based  on  study  or  investigation, 
and  in  spite  of  a  special  contract  for  extra 
compensation ;  Ramschasel's  Estate,  24  Pa. 
Super.  Ct  262.  Expenses  of  expert  witnesses 
cannot  be  allowed  as  between  the  parties 
at  a  rate  exceeding  the  usual  fees;  [1900]  1 
Ir.  Rep.  22;  Randall  v.  Journal  Ass'n,  22 
Misc.  715,  49  N.  Y.  Supp.  1064;  Linforth  v. 
Gas  Co.,  9  Cal.  App.  434,  99  Pac.  716. 

Under  equity  rule  48  (S.  C.  of  U.  S.,  in 
effect  Feb.  1,  1913,  33  Sup.  Ct.  xxxi) ,  the  dis- 
trict court,  in  a  case  involving  the  scope  or 
validity  of  a  patent  or  trade-mark,  may,  up- 
on petition,  order  that  the  examination  in 
chief  of  the  experts  be  set  forth  in  affida- 
vits and  filed :  Those  of  plaintiff  within  40 
days  after  the  cause  is  at  issue ;  those  of  de- 
fendant 20  days  after  plaintiff's  time  has 
expired;  and  rebutting  affidavits  15  days 
after  the  time  for  filing  the  originals  has  ex- 
pired. The  court  or  a  judge  may  direct  the 
cross-examination  and  any  re-examination 
before  the  court  at  the  trial.  If  the  expert 
be  not  produced,  the  affidavit  shall  not  be 
used. 

A  statute  providing  for  the  appointment  of 
expert  witnesses  by  the  court  without  notice 
to  the  respondent  or  prosecuting  attorney  in 
cases  of  homicide  was  declared  unconstitu- 
tional in  People  v.  Dickerson,  164  Mich.  148, 
129  N.  W.  199,  33  L.  R.  A.  (N.  S.)  917,  Ann. 
Cas.  1912B,  688. 

In  Germany  expert  witnesses  are  appoint- 
ed by  the  court  and  are  regarded  as  assist- 
ants to  the  trial  judge.  The  judge  decides 
whether  they  shall  be  called  or  not ;  he  may 
inform  himself  from  other  sources  upon  the 
questions  raised.  There  are  lists  of  experts 
made  under  local  laws;  they  are  usually 
nominated  by  the  various  trades  and  pro- 
fessions. They  are  sworn  in  and  need  not 
be  sworn  in  the  particular  case.  If  the  par- 
ties have  agreed  upon  an  expert,  he  must 
be  examined  together  with  others  designated 
by  the  judge  if  he  so  desires. 

Frequently  the  experts  furnish  a  written 
opinion  and  are  not  examined.  The  rules 
are  the  same  in  civil  and  criminal  cases. 

In  France  in  civil  cases  each  court  selects 
expert  witnesses  and  publicly  announces 
their  names.  They  are  classified  under  49 
different  categories.  Usually  three  are  ex- 
amined; but  the  parties  may  agree  to  exam- 
ine only  one.  If  the  parties  cannot  agree 
within  three  days  on  their  choice  of  the  ex- 


EXPERTS 


1161 


EXPIRY  OF  THE  LEGAL 


perts  to  be  called,  the  court  appoint.  They 
report  in  writing  signed  by  all.  If  they  dif- 
fer in  opinion,  the  grounds  of  difference  must 
be  stated,  but  not  the  name  of  the  dis- 
sentient.    The  report  need  not  be  sworn  to. 

In  criminal  cases  the  experts  are  selected 
by  the  procureur  (district-attorney)  or  they 
may  be  called  by  the  examining  magistrate 
or  the  trial  judge. 

Lists  of  experts  of  various  professions  are 
published  by  the  official  registrars  of  the 
courts  and  are  appointed  by  the  minister  of 
justice  with  the  advice  of  the  presidents  of 
the  courts  'and  the  district  attorney.  They 
are  entitled  to  ask  for  any  fee  they  consider 
due  for  their  services,  there  being  no  fixed 
schedule.  Each  profession  is  considered  on 
its  merits.  Sometimes  an  expert  not  on  the 
list  may  be  selected  by  the  judge.  The  rule 
that  there  must  be  an  uneven  number  of  ex- 
perts does  not  apply  in  the  criminal  courts. 

See  Opinion  ;  Patent  ;  Hypothetical 
Question. 

EXPILATION.  In  Civil  Law.  The  crime 
of  abstracting  the  goods  of  a  succession. 

This  is  said  not  to  be  a  theft,  because  the  property 
no  longer  belongs  to  the  deceased,  nor  to  the  heir 
before  he  has  taken  possession.  In  the  common 
law,  the  grant  of  letters  testamentary,  or  letters  of 
administration,  relates  back  to  the  time  of  the  death 
of  the  testator  or  intestate:  so  that  the  property  of 
the  estate  Is  vested  in  the  executor  or  administrator 
from  that  period. 

EXPIRATION.  Cessation;  end:  as,  the 
expiration  of  a  lease,  of  a  contract  or  stat- 
ute. 

In  general,  the  expiration  of  a  contract 
puts  an  end  to  all  the  engagements  of  the 
parties,  but  not  to  the  obligations  which  arise 
from  the  non-fulfilment  of  obligations  creat- 
ed during  its  existence.  See  Paetneeship  ; 
Contbact. 

The  term  is  specially  used  to  denote  the 
day  upon  which  the  risk  of  an  insurance  pol- 
icy terminates.  When  before  the  expiration 
of  policies  the  companies  agreed  to  "hold" 
the  policies  for  renewal,  and  after  the  expi- 
ration the  agent  of  the  insured  told  them 
to  continue  to  hold  them  until  the  form  could 
be  arranged,  the  policies  were  held  to  be  in 
force;  Baker  v.  Assur.  Co.,  1G2  Mass.  358, 
38  N.  •  E.  1124.  Temporary  insurance  from 
one  day  "until"  a  certain  other  date,  in- 
cludes all  o£  the  day  of  expiration;  Thomp- 
son v.  Ins.  Co.,  4  Pa.  Dist.  R.  382.  See  In- 
surance. 

When  a  statute  is  limited  as  to  time,  it 
expires  by  mere  lapse  of  time,  and  then  it 
has  no  force  whatever;  and,  if  such  a  stat- 
ute repealed  or  supplied  a  former  statute. 
the  first  statute  is,  ipso  facto,  revived  by  the 
expiration  of  the  repealing  statute;  Collins 
v.  Smith,  G  Whart.  (Pa.)  294,  36  Am.  Dec. 
22S;  unless  it  appear  that  such  was  not  the 
intention  of  the  legislature;  3  East  212;  Ba- 
con. Abr.  Statute  (D). 

EXPIRY  OF  THE  LEGAL.  In  Scotch 
Law.     The    expiration    of    the    term    within 


which  the  subject  of  an  adjudication  may  be 

redeemed  on  payment  of  the  debt  adj 

for.     Bell,  Diet;  3  Jurid.  Styles,  :;d  ed.  lluT. 

EXPLICATIO    (Lat.).     In   Civil    Law.     The 

fourth    pleading;    equivalent    to    the    sur-re- 
joiuder  of  the  common  law.     Calvinus,  Lex. 

EXPLOSION.    A  sudden   and   rapid   com- 
bustion,   causing    violent    expansion    of    the 
air,   and  accompanied   by  a  report.     United 
Life,  Eire   &  Marine   Ins.    Co.    v.   Fool 
Ohio  SL  348,  10  Am.  Rep. 

There  is  no  difference  in  ordinary  use  be- 
tween "explode"  and  "burst"  The  ordinary 
idea  is  that  the  explosion  is  the  cause,  while 
the  rupture  is  the  effect;  Evans  v.  In 
14  N.  Y.  151,  4  Am.  Rep.  050;  Mitchell  v. 
Ins.  Co.,  183  U.  S.  42,  22  Sup.  CL  22,  40  L. 
Ed.  74.    See  Insurance. 

The  insurer  against  fire  is  not  liable  for 
loss  or  damage  to  a  building  caused  by  ex- 
plosion; Hustace  v.  Ins.  Co.,  175  N.  Y.  292, 
07  X.  E.  592,  <•.•_•  L.  R.  A.  051  ;  Priggs  v.  Ins. 
Co.,  53  X.  Y.  446;  German  Fire  Ins.  Co.  v. 
Roost,  55  Ohio  St.  587,  45  N.  E.  K".i7,  36  L. 
R.  A.  23G,  GO  Am.  SL  Rep.  711;  Heuer  v. 
Ins.  Co.,  144  111.  303,  33  N.  E.  411,  V.\  L.  R. 
A.  594;  rhoenix  Ins.  Co.  v.  Greer,  61  Ark. 
509,  33  S.  W.  840.  See  Insuka.nci;  also  as  to 
liability  for  fire  caused  by  explosions,  and 
for  explosions  caused  by  fire;  Fire. 

EXPLOSIVES.  The  standard  form  of  pol- 
icy issued  by  the  New  York  fire  insurance 
companies  includes  benzine,  benzole,  dyna- 
mite, ether,  fireworks,  gasoline,  Greek  fire, 
gunpowder,  exceeding  25  pounds  in  quantity, 
nitro-glycerin,  or  other  explosives.  Blast in_- 
powder  is  held  to  be  included  by  the  words 
"other  explosives"  within  the  meaning  of 
such  a  policy;  Penman  v.  Ins.  Co.,  216  1'.  S. 
311,  30  Sup.  Ct.  312,  54  L.  Ed.  493;  St  Paul 
Fire  &  Marine  Ins.  Co.  v.  Penman,  151 
961,  81  C.  C.  A.  151. 

A  person  in  possession  of  dynamite  is  bound 
to  exercise  the  highest  degree  of  care  to  take 
every  reasonable  precaution  to  prevent  ex- 
plosion; Sowers  v.  McMauus,  214  Pa.  244,  63 
Atl.  001. 

The  regulations  of  The  Hague  tribunal  of 
1S99  forbid  the  throwing  of  explosives  from 
balloons  or  other  airships.  Inasmuch  as  this 
provision  is  only  binding  upon  the  contracting 
powers,  it  is  provided  that,  if  either  of  the 
nations  at  war  form  an  alliance  with  a 
non-contraeting  power,  the  prohibition  shall 
be  null. 

See  Blasting;  Dangerous  Goods;  Fire. 

EXPORTS.     Goods    and    merch:; 
from  one  country  to  another.    2  M.  ft  *;.  1.""  : 
;;  id.  959. 

While  the  word  export  technically  Includes 
the  landing  in  as  well  as  the  shipment  to  a 
foreign  country,  it  is  often  used  as  meaning 
only  the  shipment  from  this  country,  and  it 
will  he  so  construed  when  used  in  a  suit  the 
manifest  purpose  of  which  would  be  defeat- 
ed by  limiting  the  word  to  its  strict  techni- 


EXPORTS 


1162 


EXPRESS  ASSUMPSIT 


cal  meaning;  U.  S.  v.  Chavez,  228  U.  S.  525, 

33   Sup.  Ct.   595,  57  L.   Ed.  ,   where  the 

word  is  construed  as  used  in  the  joint  reso- 
lution of  March  14,  1912. 

In  order  to  preserve  equality  among  (  the  states  in 
their  commercial  relations,  the  constitution  provides 
that  "no  tax  or  duty  shall  be  laid  on  articles  ex- 
ported from  any  state."  Art.  1,"  s.  9.  And,  to  pre- 
vent a  pernicious  interference  with  the  commerce 
of  the  nation,  the  tenth  section  of  the  first  article  of 
the  constitution  contains  the  following  prohibition: 
"No  state  shall,  without  the  consent  of  congress, 
lay  any  imposts  or  duties  on  imports  or  exports, 
except  what  may  be  absolutely  necessary  for  exe- 
cuting its  inspection  laws  ;  and  the  net  produce  of 
all  duties  and  imposts  laid  by  any  state  on  imports 
or  exports  shall  be  for  the  use  of  the  treasury  of 
the  United  States  ;  and  all  such  laws  shall  be  sub- 
ject to  the  revision  and  control  of  the  congress." 
See  Brown  v.  Maryland,  12  Wheat.  (U.  S.)  419,  6  L. 
Ed.  GTS ;    Importation. 

EXPOSE.  A  French  word,  sometimes  ap- 
plied to  a  written  document  containing  the 
reasons  or  motives  for  doing  a  thing.  The 
word  occurs  in  diplomacy. 

EXPOSE.  To  cast  out  to  chance,  to  place 
abroad,  or  in  a  situation  unprotected;  Shan- 
non v.  People,  5  Mich.  90. 

EXPOSURE  OF  PERSON.  Such  an  inten- 
tional exposure,  in  a  public  place,  of  the 
naked  body,  as  is  calculated  to  shock  the 
feelings  of  chastity  or  to  corrupt  the  morals. 

This  offence  is  indictable  on  the  ground 
that  every  public  show  and  exhibition  which 
outrages  decency,  shocks  humanity,  or  is  con- 
trary to  good  morals,  is  punishable  at  com- 
mon law.  1  Bish.  Cr.  Law  §  1125 ;  State  v. 
Rose,  32  Mo.  560.  An  indecent  exposure, 
though  in  a  place  of  public  resort,  if  visible 
by  only  one  person,  is  not  indictable  as  a 
common  nuisance.  An  omnibus  is  a  public 
place  sufficient  to  support  the  indictment; 
Clark,  Cr.  L.  306,  n. ;  1  Den.  338;  Tempi.  & 
M.  23;  2  C.  &  K.  933;  2  Cox,  Cr.  Cas.  376; 
3  id.  183;  Dearsl.  207.  But  see  State  v. 
Roper,  18  N.  C.  208;  State  v.  Pepper,  68  N. 
C.  259,  12  Am.  Rep.  637.  An  ordinance  mak- 
ing it  an  offence  to  expose  the  person  inde- 
cently without  reference  to  the  intent  which 
accompanies  the  act,  is  a  valid  exercise  of 
police  power ;  City  of  Grand  Rapids  v.  Bate- 
man.  93  Mich.  135,  53  N.  W.  6. 

See,  generally,  1  Benn.  &  H.  Lead.  Cr.  Cas. 
442;  Knowles  v.  State,  3  Day  (Conn.)  103; 
Fowler  v.  State,  5  Day  (Conn.)  81;  State  v. 
Millard,  18  Vt.  574,  46  Am.  Dec.  170;  Com. 
v.  Catlin,  1  Mass.  8;  Com.  v.  Sharpless,  2  S. 
&  R.  (Pa.)  91,  7  Am.  Dec.  632;  Miller  v. 
People,  5  Barb.   (N.  Y.)   203 

See  Indecency. 

EXPRESS.  Stated  or  declared,  as  oppos- 
ed to  implied.  That  which  is  made  known 
and  not  left  to  implication.  It  is  a  rule  that 
when  a  matter  or  thing  is  expressed  it  ceas- 
es to  be  implied  by  law ;  expression  facit  ces- 
sare  taciturn.    Co.  Litt  183. 

EXPRESS  ABROGATION.  A  direct  re- 
peal in  terms  by  a  subsequent  law  referring 
to  that  which  is  abrogated. 


EXPRESS  ASSUMPSIT.  A  direct  under, 
taking.     See  Assumpsit  ;  Action. 

EXPRESS  COMPANIES.  Companies  or- 
ganized to  carry  small  and  valuable  packag- 
es expeditiously  in  such  manner  as  not  to 
subject  them  to  the  danger  of  loss  and  dam- 
age which  to  a  greater  or  less  degree  attends 
the  transportation  of  heavy  or  bulky  articles 
of  commerce.  Southern  Express  Co.  v.  R. 
Co.,  10  Fed.  213. 

A  common  carrier  that  carries  at  regular 
and  stated  times,  over  fixed  and  regular 
routes,  money  and  other  valuable  packages, 
which  cannot  be  conveniently  or  safely  car- 
ried as  common  freight ;  and  also  other  arti- 
cles and  packages  of  any  description  which 
the  shipper  desires  or  the  nature  of  the  arti- 
cle requires  should  have  safe  and  rapid 
transit  and  quick  delivery,  transporting  the 
same  in  the  immediate  charge  of  its  own 
messenger  on  passenger  steamers  and  ex- 
press and  passenger  railway  trains,  which 
it  does  not  own  or  operate,  but  with  the  own- 
ers of  which  it  contracts  for  the  carriage  of 
its  messengers  and  freights ;  and  within 
cities  and  towns  or  other  defined  limits,  it 
collects  from  the  consignors  and  delivers  to 
the  consignees  at  other  places  of  business 
the  goods  which  it  carries.  Pacific  Exp.  Co. 
v.  Seibert,  44  Fed.  310.  The  right  to  use  the 
facilities  afforded  by  a  railroad  depends  en- 
tirely on  contract;  St.  Louis,  I.  M.  &  S.  R. 
Co.  v.  Express  Co.,  117  U.  S.  3,  6  Sup.  Ct. 
542,  628,  29  L.  Ed.  791.  In  St.  Louis,  I.  M. 
&  S.  R.  Co.  v.  Express  Co.,  117  U.  S.  1,  6 
Sup.  Ct.  542,  628,  29  L.  Ed.  791 ;  it  was  held 
that  a  railroad  company  might  make  an  ex- 
clusive contract  with  a  single  express  com- 
pany, and  this  has  been  followed  by  many 
state  courts ;  but  it  is  held  that  under  the 
anti-trust  laws  such  exclusive  contract  is  not 
valid ;  State  v.  R.  Co.,  99  Tex.  516,  91  S.  W. 
214,  5  L.  R.  A.  (N.  S.)  783,  13  Ann.  Cas.  1072. 

They  are  common  carriers ;  Southern  Ex- 
press Co.  v.  Crook,  44  Ala.  468,  4  Am.  Rep. 
140 ;  U.  S.  Express  Co.  v.  Backman,  28  Ohio 
St.  144 ;  notwithstanding  a  declaration  in 
their  bill  of  lading  that  they  are  not  to  be 
so  considered ;  Bank  of  Kentucky  v.  Express 
Co.,  93  U.  S.  174,  23  L.  Ed.  872 ;  Christenson 
v.  Express  Co.,  15  Minn.  270  (Gil.  208),  2 
Am.  Rep.  122. 

In  section  1  of  the  Railroad  Rate  Act 
(June  29,  1906),  it  is  provided  that  the  term 
"common  carrier"  in  that  act  should  include 
express  companies ;  State  v.  Express  Co.,  171 
Ind.  138,  85  N.  E.  337,  19  L.  R.  A.  (N.  S.) 
93,  where  it  was  said  that  congress  has  as- 
sumed jurisdiction  over  interstate  traffic  by 
express  down  to  the  point  where  the  transit 
is  entirely  at  an  end;  and  a  state  statute  re- 
quiring such  companies  to  make  free  deliver- 
ies of  parcels  committed  to  their  care  was 
held  void. 

The  Interstate  Commerce  Act  and  its 
amendments  provide  that  the  term  "common 


EXPRESS  COMPANIES 


11G3 


EXPRESS  COMPANIES 


carrier"  as  used  in  the  act  shall  include  ex- 
press companies;  U.  S.  Comp.  St.  Stat  Supp. 
1911,  1285;  and  in  an  indictment  of  express 
companies  under  that  act  it  was  held  that 
where  a  joint  stock  company  did  a  general 
interstate  express  business  and  had  filed  a 
schedule  of  its  rates  with  the  Interstate 
Commerce  Commission  it  was  a  quasi  corpo- 
ration and  subject  to  indictment  as  a  legal 
entity;  U.  S.  v.  Am.  Express  Co.,  199  Fed. 
321. 

See  Common  Carriers. 
Like  all  other  common  carriers  they  must 
receive  all  goods  offered  for  transportation, 
on  being  paid  or  tendered  the  proper  charge ; 
Jordan  v.  R.  Co.,  5  Gush.  (Mass.)  69,  51  Am. 
Dec.  44;  and  if  they  cannot  transport  them 
within  a  reasonable  time,  must  refuse  them 
or  be  responsible  for  loss  caused  by  the  de- 
lay ;  Condict  v.  R.  Co.,  54  N.  Y.  500 ;  Tierney 
v.  R.  Co.,  70  N.  Y.  305 ;  Illinois  Cent.  R.  Co. 
v.  Cobb,  64  Illi  128.  They  may  also  refuse  to 
receive  dangerous  articles  for  transporta- 
tion; Parrot  v.  Wells,  15  Wall.  (U.  S.)  524, 
21  L.  Ed.  206 ;  Boston  &  A.  R.  Co.  v.  Shan- 
ly,  107  Mass.  568. 

An  express  company  insures  the  safe  de- 
livery of  goods  received  at  the  destination, 
if  on  its  own  route;  if  not,  safe  delivery  at 
the  end  of  its  route  to  the  next  carrier ;  and 
will  be  relieved  only  by  act  of  God  or  of  the 
public  enemy;  Stephens  &  C.  Transp.  Co.  v. 
Tuckerman,  Milligan  &  Co.,  33  N.  J.  L.  543 ; 
U.  S.  Exp.  Co.  v.  Hutchins,  5S  111.  44;  South- 
ern Exp.  Co.  v.  Craft,  49  Miss.  480,  19  Am. 
Rep.  4;  Babcock  v.  Ry.  Co.,  49  N.  Y.  491; 
American  Exp.  Co.  v.  Bank,  69  Pa.  394,  8 
Am.  Rep.  268 ;  Hadd  v.  Exp.  Co.,  52  Vt  335, 
36  Am.  Rep.  757. 

An  express  company  may  by  special  con- 
tract limit  its  liability  for  the  value  of  goods 
lost;  Oppenheimer  v.  Exp.  Co.,  69  111.  62,  18 
Am.  Rep.  596;  Magnin  v.  Dinsmore,  62  N. 
Y.  35,  20  Am.  Rep.  442;  Baldwin  v.  Steam- 
ship Co.,  74  N.  Y.  125,  30  Am.  Rep.  277;  U. 
S.  Exp.  Co.  v.  Backman,  28  Ohio  St.  144; 
except  for  losses  due  to  its  own  negligence 
or  misconduct ;  Bank  of  Kentucky  v.  Exp. 
Co.,  93  U.  S.  174,  23  L.  Ed.  872 ;  Boscowitz  v. 
Exp.  Co.,  93  111.  523,  34  Am.  Rep.  191 ;  Har- 
vey v.  R.  Co.,  74  Mo.  53S;  Whitworth  v.  Ry. 
Co.,  87  N.  Y.  413.  A  contract  between  an 
express  company  and  its  messenger  exempt- 
ing it  from  liability  for  injury  to  him  by 
the  negligence  of  the  carrier,  is  valid  and 
may  extend  so  far  as  to  authorize  the  ex- 
press company  to  contract  with  the  carrier 
against  liability  to  the  messenger;  but  such 
contract  will  not  enure  to  the  benefit  of  the 
carrier  having  no  knowledge  of  it  or  not 
having  availed  itself  of  it  by  contracting 
with  the  express  company;  Louisville,  N.  A. 
&  C.  Ry.  Co.  v.  Keefer,  146  Ind.  21,  44  X.  E. 
796,  3S  L.  R.  A.  93,  58  Am.  St.  Rep.  348. 

An  express  company  is  liable  for  damages 
to  perishable  freight  injured  by  delay: 
Adams  Exp.  Co.  v.  Williams  (Ark.)  14  S.  W. 


40;  but  a  delay,  to  create  a  liability,  must 
be  "an  unreasonable  delay  which  is  such  as 
involves  some  want  of  ordinary  care  or  dili- 
gence" ;  Adams  Exp.  Co.  v.  Bratton,  106  111. 
App.  563. 

Where  it  was  a  habit  to  carry  large  sums 
of  money  for  hire  and  keep  the  same  for 
several  hours  after  its  transportation  before 
called  for,  the  liability  for  it 
warehouseman  and  not  as  a  common  carrier; 
President,  etc.,  of  Conway  Lank  v.  Ex: 
8  Allen  (Mass.)  512.  The  liability  of  an  ex- 
press company  as  a  common  carrier  termi- 
nates on  the  safe  carriage  of  the  goods  to 
their  destination  and  notice  to  the  consignee; 
Hasse  v.  Exp.  Co.,  94  Mich.  133,  53  N.  W. 
918,  34  Am.  St.  Rep.  328;  and  where  goods 
are  sent  C.  O.  D.,  and  the  consignee  n 
to  accept  them,  and  the  shipper  on  notice 
directs  the  company  to  hold  them  until  call- 
ed for,  its  liability  is  only  that  of  a  wan- 
houseman;  Byrne  v.  Fargo,  36  Misc.  54::.  73 
N.  Y.  Supp.  943;  but  it  is  held  that  in 
the  absence  of  a  special  contract  the  duty 
of  the  company  is  not  completed  on  the 
arrival  of  the  goods,  but  includes  delivery  ; 
Burr  v.  Exp.  Co.,  71  N.  J.  L.  263,  58  At" 
609;  or  constructive  delivery  by  notice  to 
the  consignee;  Rogers  v.  Fargo,  47  Misc.  155, 
93  N.  Y.  Supp.  550;  where  there  is  such  lo- 
cal usage;  Hutchinson  v.  Exp.  Co.,  03  W.  Va. 
128,  59  S.  E.  949,  14  L.  R.  A.  (N.  S.)  393, 
and  note  on  delivery. 

An  express  company  is  not  denied  the 
equal  protection  of  the  laws  by  classifying 
it  with  railroad  and  telegraph  companii 
subject  to  the  unit  rule  of  taxation,  which 
estimates  the  value  of  the  whole  plant, 
though  situated  in  different  states,  as  an 
entirety,  for  the  purpose  of  determining  the 
value  of  the  property  in  one  state;  Adams 
Exp.  Co.  v.  Ohio  State  Auditor,  165  U.  S. 
194,  17  Sup.  Ct  305,  41  L.  Ed.  683;  id., 
U.  S.  1S5,  17  Sup.  Ct.  604,  41  L. 
and  a  state  statute,  requiring  foreign  ex- 
press companies  to  file  a  statement  before 
doing  business  and  an  agreement  in  refer- 
ence to  suits  brought  against  them,  did  ii"t 
give  them  a  vested  right  bo  carry  on  business 
subject  to  the  then  existing  laws  or  exempt 
them  from  future  legislative  control:  Adams 
Exp.  Co.  v.  State,  161  Ind.  328,  67  N.  E.  1033. 
Under  a  state  statute  providing  that  one 
who  offers  to  carry  persons,  property  or  mes- 

is  a  common  carrier  of  what  he  thus 
offers  to  carry,  an  express  company  offering 
to  carry  money  for  hire  is  a  common  carrier 

f;  Piatt  v.  Le  Cocq,  150  Fed 
where  it  was  held  that  the  railroad  commis- 
sioners' order  requiring  it  to  receive  money, 
of  which  it  held  itself  out  to  be  a  common 
carrier,  at  all  reasonable  business  hours  pre- 
ceding the  departure  of  trains,  was  reason- 
able. A  state  statute  regulating  express 
companies  by  requiring  equal  terms  to  all, 
without  discrimination,  does  not  violate  the 
XlVth  amendment  of  the  United  States  con- 


EXPRESS  COMPANIES 


1164 


EXPULSION 


stitution;  Am.  Express  Co.  v.  Express  Co., 
1G7  Ind.  292,  78  N.  E.  1021. 

In  some  states  statutes  relating  to  the 
transportation  of  property  by  railroad  com- 
panies are  applicable  to  express  companies; 
MacMiUan  v.  Express  Co.,  123  la.  236,  98  N. 
W.  629;  but  a  statute  prescribing  the  duties 
of  railroads  with  reference  to  intersecting 
lines  relates  to  the  mere  physical  connection 
of  the  tracks  and  has  no  application  to  ex- 
press companies;  Southern  Ind.  Express  Co. 
v.  Ex.  Co.,  92  Fed.  1022,  35  C.  C.  A.  172. 

See  an  epitome  of  the  law  on  this  subject 
at  that  date  by  Judge  Redfield  in  5  Am. 
Law  Reg.  N.  S.  1 ;  and  three  articles  on  ex- 
press companies  as  common  carriers ;  id.  449, 
513,  648. 

See  Railroad;  Common  Carriers. 

EXPRESS  CONSIDERATION.  A  consid- 
eration expressed  or  stated  by  the  terms  of 
the  contract. 

EXPRESS  CONTRACT.  One  in  which  the 
terms  are  openly  uttered  and  avowed  at  the 
time  of  making.  2  Bla.  Com.  443;  1  Pars. 
Contr.  4.  One  made  in  express  words.  2 
Kent  450.    See  Contract. 

EXPRESS  COVENANTS.  Those  stated  in 
words  more  or  less  distinctly  expressing  the 
intent  to  covenant.  McDonough  v.  Mar- 
tin, 88  Ga.  675,  16  S.  E.  59,  18  L.  R.  A.  343. 

EXPRESS  TRUST.  One  declared  in  ex- 
press terms.     See  Trusts. 

EXPRESS  WARRANTY.  One  expressed 
by  particular  words.  2  Bla.  Com.  300.  The 
statements  in  an  application  for  insurance 
are  usually  construed  to  constitute  an  ex- 
press warranty.  1  Phil.  Ins.  346.  See  War- 
ranty. 

EXPR0MISSI0  (Lat).  In  Civil  Law. 
The  species  of  novation  by  which  a  creditor 
accepts  a  new  debtor,  who  becomes  bound 
instead  of  the  old,  the  latter  being  released. 
See  Novation. 

EXPROMISSOR.  In  Civil  Law.  The  per- 
son who  alone  becomes  bound  for  the  debt 
of  another,  whether  the  latter  were  obligat- 
ed or  not.  He  differs  from  a  surety,  who  is 
bound  together  with  his  principal.  Dig.  12. 
4.  4;  16.  1.  13;  24.  3.  64.  4;  38.  1.  37.  8. 

EXPROPRIATION.  A  taking  of  private 
property  for  public  use  upon  providing  com- 
pensation. Brownsville  v.  Pavazos,  2  Woods 
293,  Fed.  Cas.  No.  2,043.  It  corresponds  to 
the  right  of  eminent  domain  in  our  law. 
In  Louisiana  expropriation  is  used  as  is  tak- 
ing under  eminent  domain  in  most  of  the 
other  states.  In  England  "compulsory  pur- 
chase" is  used ;  Halsbury,  Laws  of  England. 

In  French  Law.  The  compulsory  realiza- 
tion of  a  debt  by  the  creditor  out  of  the 
lands  of  a  debtor,  or  the  usufruct  thereof; 
confined  first  to  lands  (if  any)  in  hypothgquc, 
and  then  extending  to  others.  Black,  L. 
Diet 


EXPULSION  (Lat.  expellere,  to  drive 
out).  The  act  of  depriving  a  member  of  a 
body  politic  or  corporate,  or  of  a  society,  of 
his  right  of  membership  therein,  by  the  vote 
of  such  body  or  society,  for  some  violation 
of  his  duties  as  such,  or  for  some  offence 
which  renders  him  unworthy  of  longer  re- 
maining a  member  of  the  same. 

By  the  constitution  of  the  United  States,  art.  1, 
s.  5,  §  2,  each  house  may  determine  the  rules  of  its 
proceedings,  punish  its  members  for  disorderly 
behavior,  and,  with  the  concurrence  of  two-thirds, 
expel  a  member.  In  the  case  of  John  Smith,  a  sen- 
ator from  Ohio,  who  was  expelled  from  the  senate 
in  1807,  the  committee  made  a  report  which  em- 
braces the   following  points: 

First.  That  the  senate  may  expel  a  member  for 
a  high  misdemeanor,  such  as  a  conspiracy  to  com- 
mit treason.  Its  authority  is  not  confined  to  an 
act  done  in  its  presence. 

Second.  That  a  previous  conviction  is  not  requi- 
site in  order  to  authorize  the  senate  to  expel  a  mem- 
ber from  their  body  for  a  high  offence  against  the 
United   States. 

Third.  That  although  a  bill  of  indictment  against 
a  party  for  treason  and  misdemeanor  has  been 
abandoned,  because  a  previous  indictment  against 
the  principal  party  had  terminated  in  an  acquittal, 
owing  to  the  inadmissibility  of  the  evidence  upon 
that  indictment,  yet  the  senate  may  examine  the 
evidence  for  themselves,  and  if  it  be  sufficient  to 
satisfy  their  minds  that  the  party  is  guilty  of  a  high 
misdemeanor  it  is  sufficient  ground  of  expulsion. 

Fourth.  That  the  fifth  and  sixth  articles  of  the 
amendments  of  the  constitution  of  the  United 
States,  containing  the  general  rights  and  privileges 
of  the  citizens  as  to  criminal  prosecutions,  refer 
only  to  prosecutions  at  law,  and  do  not  affect  the 
jurisdiction  of  the  senate  as  to  expulsion. 

Fifth.  That  before  a  committee  of  the  senate, 
appointed  to  report  an  opinion  relative  to  the  honor 
and  privileges  of  the  senate,  and  the  facts  respect- 
ing the  conduct  of  the  member  implicated,  such 
member  is  not  entitled  to  be  heard  in  his  defence 
by  counsel,  to  have  compulsory  process  for  wit- 
nesses, or  to  be  confronted  with  his  accusers.  It  is 
before  the  senate  that  the  member  charged  is  en- 
titled to  be  heard. 

Sixth.  In  determining  on  expulsion  the  senate 
is  not  bound  by  the  forms  of  judicial  proceedings 
or  the  rules  of  judicial  evidence;  nor,  it  seems,  is 
the  same  degree  of  proof  essential  which  is  required 
to  convict  of  a  crime.  The  power  of  expulsion 
must,  in  its  nature,  be  discretionary,  and  its  exer- 
cise of  a  more  summary  character.  1  Hall,  .Law 
Journ.  459,  465  ;  Anderson  v.  Dunn,  6  Wheat.  (U.  S.) 
204,  5  L.  Ed.  242  ;    Cooley,  Const.   Lim.  162. 

Corporations  have  the  right  of  expulsion 
in  certain  cases,  as  such  power  is  necessary 
to  the  good  order  and  government  of  corpo- 
rate bodies;  and  the  cases  in  which  the  in- 
herent power  may  be  exercised  are  classi- 
fied by  Lord  Mansfield  as  follows:  1.  When 
an  offence  is  committed  which  has  no  im- 
mediate relation  to  a  member's  corporate 
duty,  but  is  of  so  infamous  a  nature  as  to 
render  him  unfit  for  the  society  of  honest 
men;  such  as  the  offences  of  perjury,  for- 
gery, and  the  like.  But  before  an  expulsion 
is  made  for  a  cause  of  this  kind  it  is  neces- 
sary that  there  should  be  a  previous  convic- 
tion by  a  jury  according  to  the  law  of  the 
land.  2.  When  the  offence  is  against  his  du- 
ty as  a  corporator,  in  which  case  he  may  be 
expelled  on  trial  and  conviction  before  the 
corporation.  3.  The  third  is  of  a  mixed  na- 
ture, against  the  member's  duty  as  a  corpo- 


EXPULSION 


11G5 


EXPULSION 


rator,  and  also  indictable  by  the  law  of  the 
land ;  1  Burr.  517 ;  Diligent  Fire  Co.  v.  Com., 
75  Pa.  291 ;  Evans  v.  Philadelphia  Club,  50 
Pa.  107;  Gregg  v.  Medical  Society,  111  Mass. 
185,  15  Am.  Rep.  27. 

The  decisions  of  any  kind  of  a  voluntary 
association  in  admitting,  disciplining,  sus- 
pending or  expelling  members  are  of  a  quasi- 
judicial  character;  the  courts  will  not  inter- 
fere in  such  cases  except  to  ascertain  wheth- 
er or  not  the  proceeding  was  pursuant  to 
the  rules  of  the  society,  in  good  faith,  and 
not  in  violation  of  the  law  of  the  land.  If 
so  found,  the  proceeding  is  conclusive,  like 
that  of  a  judicial  proceeding;  Connelly  v. 
Masonic  Ass'n,  58  Conn.  552,  20  Atl.  671,  0 
L.  R.  A.  428,  18  Am.  St.  Rep.  296.  Upon 
questions  of  doctrine  and  policy  the  society 
is  the  sole  and  exclusive  judge ;  Grand 
Lodge,  K.  P.  v.  People,  60  111.  App.  550. 

Rules  enacted  for  the  government  of  its 
members  must  be  conformed  to  by  it  in  all 
matters  relating  to  the  disciplining  of  the 
members ;  Green  v.  Board  of  Trade,  174  111. 
5S5,  51  N.  E.  599,  49  L.  R.  A.  365 ;  Lewis  v. 
Wilson,  121  N.  Y.  284,  24  N.  E.  474 ;  Farmer 
v.  Board  of  Trade,  78  Mo.  App.  557.  When 
suspension  or  expulsion  results  necessarily 
in  affecting  the  financial  standing  of  the 
complainants  as  well  as  depriving  them  of 
the  use  of  property  that  is  common  to  all, 
however  insignificant  its  value,  there  is  no 
reason  to  deny  relief  by  injunction;  Huston 
v.  Reutlinger,  91  Ky.  333,  15  S.  W.  867,  34 
Am.  St.  Rep.  225.  So  where  it  appears  that 
the  complainant,  unless  aided  by  the  courts, 
will  be  expelled  from  an  association  for  some 
cause  which  under  no  circumstances  can 
justify  his  expulsion;  Otto  v.  Tailors'  Un- 
ion, 75  Cal.  315,  17  Pac.  217,  7  Am.  St.  Rep. 
156. 

A  mutual  benefit  society  cannot  expel  a 
member  or  deprive  him  of  his  rights  in  the 
society  without  giving  him  notice  and  a  full 
opportunity  to  be  heard  in  defence  of  the 
charges  against  him,  and  the  proceeding  for 
his  expulsion  must  be  conducted  fairly  am] 
in  good  faith;  State  v.  Temperance  Soc,  42 
Mo.  App.  485;  Berkhout  v.  Royal  Arcanum, 
62  N.  J.  L.  103,  43  Atl.  1 ;  Wachtel  v.  Benev. 
Soc,  84  N.  Y.  28,  38  Am.  Rep.  478 ;  People  v. 
Alpha  Lodge,  13  Misc.  077,  35  N.  Y.  Supp. 
214,  affirmed  8  App.  Div.  591,  40  N.  Y.  Supp. 
1147.  Irregularities  in  the  proceedings  by 
which  a  member  was  suspended  will  not  af- 
ford ground  for  relief  in  equity,  where  thej 
were  waived  by  the  member's  appearance 
and  failure  to  raise  them  before  the  tri- 
bunals of  the  society;  Slurry's  Appeal,  116 
Pa.  391,  9  Atl.  478.  If  the  rules  authorize 
the  expulsion  of  a  member,  and  he  is  given 
an  opportunity  to  be  heard,  and  the  investi- 
gation is  conducted  in  good  faith,  the  deci- 
sion of  the  association  is  conclusive  upon 
the  court  in  mandamus  proceedings  to  com- 
pel his  restoration;  Lewis  v.  Wilson,  121  N. 


Y.  284,  24  N.  E.  474;   White  v.  Brownell,  2 
Daly  (N.  Y.)  329. 

It  is  generally  held  that  persons  who  join 
churches,  secret  soei.  volent  associa- 

tions, or  temperance  sod  .  voluntari- 

ly submit   themselves  to  the  jurisdiction  of 
those   bodies,    and   in    matters    of  faith    and 
individual   conduct   affecting   their   relations 
as    members   thereof   subject   the; 
the  tribunals  established  by  I  Ilea  to 

pass  upon  such  questions;  if 
decision   against   them,    made   in   good  faith 
by   such  judicatories,   they   must  seek   their 
redress  within  the  organization,  as  provided 
by  its  laws  and  regulations;  Land: 
bell,  79  Mo.  433,  49  Am.    I  Lnnon 

v.  Frost,  3  B.  Monr.    (Ky.)    _ 
v.  Society  of  Believers,  118  M 

A  complaining  member  should  exhaust  the 
remedies  provided  by  the  laws  of  the  organi- 
zation before  applying  to  the  courts;  I 
Fraternal  League  of  Boston  v.  Johnston,  li'l 
Ga.  902,  53  S.  E.  241;  Beeman  v.  Supreme 
Lodge,  215  Pa.  t.27,  04  Atl.  792;  Weigand  v. 
Fraternities  Order,  97  Md.  443,  55  Atl.  530; 
but  where  those  laws  provide  no  remedy, 
and  the  organization  provides  none,  it  be- 
comes a  question  for  the  courts  to  determine 
whether  or  not  the  member  has  done  all  that 
could  reasonably  be  expected  of  him : 
Schneider  v.  Local  Union  No.  GO,  116  La.  UT' '. 
40  South.  700,  5  L.  R.  A.  (N.  S.)  891,  114  Am. 
St.  Rep.  549,  7  Ann.  Cas.  808.  His  conii 
tory  remedies  against  an  association  which 
denies  him  some  property  right  to  which  he 
is  entitled  are  the  same  as  if  he  were  enti- 
tled to  some  right  or  property  from  a  natural 
person  or  a  private  corporation  which  has 
refused  to  concede  it.  If  the  contingencies 
have  arisen  in  which  the  association  has 
agreed  to  pay  him  a  sum  of  money,  an  ac- 
tion may  be  maintained  therefor  as  in  tin- 
case  of  any  other  creditor  against  a  debtor: 
Supreme  Sitting  Order  of  Iron  Hall  v.  Stein. 
120  Ind.  270,  22  N.  E.  136;  Supreme  Lodge 
of  Ancient  Order  of  United  Workmen  v. 
Zuhlke.  129  111.  298,  21   X.  B.  7S9. 

See  Barbour  on  Parties;  2  L.  R.  A.  (N. 
S.)  7^9,  n. ;  By-Law;  Club;  Religious  So- 
ciety; Curia  ii  ;  BENEFICIAL  SOCIETY;  Asso- 
ciation; Amotion;  DISFRANCHISEMENT,  The 
subject  is  treated  with  fulness  in  Thomps. 
Corp.  806-930.  See  State  v.  Chamber  of 
Commerce,  47  Wis.  670. 

EXTENSION.  This  term  is  applied  among 
merchants  to  signify  an  agreement  made 
tween  a  debtor  and  his  creditors,  by  which 
the  latter,  in  order  to  enable  the  former, 
embarrassed  in  his  eireuuistane, 
trieve  bis  standing,  agree  to  wait  for  a  defi- 
nite length  of  time  after  their  several  claims 
become  due  and  payable,  before  they  will 
demand  payment  It  is  often  done  by  the 
issue  of  notes  of  various  maturities. 

ag  the  French,  a  similar  agreement  is 
known  by  the  name  of  attermoiement.  Mer- 
lin, Rupert,  mot    Attcrmoic77unt. 


EXTENSION  OF  PATENT 


1166 


EXTENT 


EXTENSION  OF  PATENT  (sometimes 
termed  Renewal  of  Patent).  Under  the 
earlier  patent  acts  (1836  and  1848)  a  patent 
was  granted  for  the  term  of  fourteen  years. 
But  the  law  made  provision  that  when  any 
patentee,  without  neglect  or  fault  on  his  part, 
had  failed  to  obtain  a  reasonable  remunera- 
tion for  the  time,  ingenuity,  and  expense  be- 
stowed upon  the  same  and  the  introduction 
thereof  into  use,  he  might  obtain  an  exten- 
sion of  such  patent  for  the  term  of  seven 
years  longer.  No  extension  could  be  granted 
after  the  patent  had  once  expired.  The  ex- 
tension was  intended  for  the  sole  benefit  of 
the  inventor ;  and  where  it  was  made  to  ap- 
pear that  he  would  receive  no  benefit  there- 
from, it  would  not  be  granted.  The  assignee, 
grantee,  or  licensee  of  an  interest  in  the  orig- 
inal patent  retained  no  right  in  the  exten- 
sion, unless  by  reason  of  some  stipulation  to 
that  effect.  Where  any  person  had  a  right 
to  use  a  specific  machine  under  the  original 
patent  he  still  retained  that  right  after  the 
extension.  By  act  March  2,  1861,  it  was  pro- 
vided that  patents  should  be  granted  for 
the  term  of  seventeen  years  and  further  ex- 
tension was  forbidden.  Congress  may  still 
extend  a  patent. 

EXTENT.  A  writ,  issuing  from  the  ex- 
chequer, by  which  the  body,  goods,  and  lands 
of  the  debtor  may  all  be  taken  at  once  to 
satisfy  the  judgment. 

It  is  so  called  because  the  sheriff  Is  to  cause  the 
lands  to  he  appraised  at  their  full  extended  value 
before  he  delivers  them  to  the  plaintiff.  Fitzh.  N. 
B.  131.  The  writ  originally  lay  to  enforce  judg- 
ments in  case  of  recognizances  or  debts  acknowl- 
edged on  statutes  merchant  or  staple  ;  see  stat.  13 
Edw.  I.  de  Mercatoribus ;  27  Edw.  III.  c.  9;  and 
by  33  Hen.  VIII.  c.  39,  was  extended  to  debts  due 
the  crown.  The  term  is  sometimes  used  in  the 
various  states  of  the  United  States  to  denote  writs 
which  give  the  creditor  possession  of  the  debtor's 
lands  for  a  limited  time  till  the  debt  be  paid.  Rob- 
erts v.   Whiting,   16   Mass.  186. 

Extent  in  aid  is  an  extent  issued  at  the 
suit  or  instance  of  a  crown-debtor  against  a 
person  indebted  to  himself.  This  writ  was 
much  abused,  owing  to  some  peculiar  privi- 
leges possessed  by  crown-debtors,  and  its  use 
was  regulated  by  stat.  57  Geo.  III.  c.  117. 
See  3  Bla.  Com.  419. 

Extent  in  chief  is  an  extent  issued  to  take 
a  debtor's  lands  into  the  possession  of  the 
crown. 

Manorial  extent.  A  survey  of  a  manor 
made  by  a  jury  of  tenants,  often  of  unfree 
men  sworn  to  sit  for  the  particulars  of  each 
tenancy,  and  containing  the  smallest  details 
as  to  the  nature  of  the  service  due. 

These  manorial  extents  "were  made  in  the  In- 
terest of  the  lords,  who  were  anxious  that  all  due 
services  should  be  done;  but  they  imply  that  other 
and  greater  services  are  not  due,  that  the  customary 
tenants,  even  though  they  be  unfree  men,  owe  these 
services  for  their  tenements,  no  less  and  no  more. 
Statements  that  the  tenants  are  not  bound  to  do 
services  of  a  particular  kind  are  not  very  uncom- 
mon ;"  1  Poll.  &  Maitl.  343.  "Many  admissions 
against  their  own  (the  lords)  interests  the  extent  of 
their  manors  may  contain ;    they  suffer  it  to  be  re- 


corded that  a  'day's  work'  ends  at  noon,  that  in  re- 
turn for  some  works  they  must  provide  food,  even 
that  the  work  is  not  worth  the  food  that  has  to  be 
provided.;  but  they  do  not  admit  that  for  certain 
causes,  and  for  certain  causes  only,  may  they  take 
there  tenements  into  their  own  hands.  As  a  matter 
of  fact  it  is  seldom  of  an  actual  ejectment  that  the 
peasant  has  to  complain;"  id.  359.  Many  examples 
of  the  manorial  extents  have  been  preserved  in  the 
monastic  cartularies  and  elsewhere.  "Among  the 
most  accessible  are  the  Boldon  Book  (printed  at  the 
end  of  the  official  edition  of  the  Domesday)  ;  the 
Black  Book  of  Peterborough,  the  Domesday  of  St. 
Paul's,  the  Worcester  Register,  the  Battle  Cartu- 
lary, all  published  by  the  Camden  Society ;  the 
Ramsey,  Gloucester,  and  Malmesbury  Cartularies  or 
registers  published  in  the  Rolls  series ;  the  Burton 
Cartulary  of  the  Salt  Society  and  the  Yorkshire  In- 
quisitions of  the  Yorkshire  Record  Society;"    id.  189. 

The  "extents"  of  manors  are  descriptions 
which  give  the  numbers  and  names  of  the 
tenants,  the  size  of  their  holdings,  the  legal 
kind  of  their  tenure  and  the  kind  and  amount 
of  their  service;  Maitland,  Material  for  Hist. 
E.  L.  in  2  Sel.  Essays  in  Anglo-Amer.  Leg. 
Hist.  87. 

EXTENUATION.  That  which  renders  a 
crime  or  tort  less  heinous  than  it  would  be 
without   it.     It   is  opposed   to   aggravation. 

In  general,  extenuating  circumstances  go 
in  mitigation  of  punishment  in  criminal  cas- 
es, or  of  damages  in  those  of  a  civil  nature. 

EXTERRITORIALITY.  The  exemption 
from  the  operation  of  the  ordinary  laws  of 
the  state  accorded  to  foreign  monarchs  tem- 
porarily within  the  state  and  their  retinue, 
to  diplomatic  agents  and  the  members  of 
their  household,  to  consuls  in  non-Christian 
states,  and  to  foreign  men  of  war  in  port.  1 
Opp.  460-469.  See  Ambassador;  Conflict 
of  Laws  ;  Privilege  from  Arrest. 

EXTINGUISHMENT.  The  destruction  of 
a  right  or  contract.  The  act  by  which  a  con- 
tract is  made  void.  The  annihilation  of  a 
collateral  thing  or  subject  in  the  subject  it- 
self out  of  which  it  is  derived.  Prest.  Merg. 
9.  For  the  distinction  between  an  extin- 
guishment and  passing  a  right,  see  2  Sharsw. 
Bla.  Com.  325. 

An  extinguishment  may  be  by  matter  of 
fact  and  by  matter  of  law.  It  is  by  matter 
of  fact  either  express,  as  when  one  receives 
satisfaction  and  full  payment  of  a  debt  and 
the  creditor  releases  the  debtor;  Jackson  v. 
Shaffer,  11  Johns.  (N.  Y.)  513;  or  implied, 
as  when  a  person  hath  a  yearly  rent  out  of 
lands  and  becomes  owner,  either  by  descent 
or  purchase,  of  the  estate  subject  to  the 
payment  of  the  rent,  and  the  latter  is  ex- 
tinguished; Martin  v.  Searcy,  3  Stew.  (Ala.) 
50,  20  Am.  Dec.  64;  but  the  person  must 
have  as  high  an  estate  in  the  land  as  in  the 
rent,  or  the  rent  will  not  be  extinct;  Co. 
Litt.  147  b. 

There  are  numerous  cases  where  the  claim 
is  extinguished  by  operation  of  law:  for  ex- 
ample where  two  persons  are  jointly  but  not 
severally  liable  for  a  simple  contract-debt,  a 
judgment  obtained  against  one  is  at  common 


EXTINGUISHMENT 


11G7       EXTINGUISHMENT  OF  WAYS 


law  an  extinguishment  of  the  claim  on  the 
other  debtor ;  Willings  v.  Consequa,  1  Pet.  C. 
€.  301,  Fed.  Cas.  No.  17,767;  Tom  v.  Good- 
rich, 2  Johns.   (N.  Y.)  213. 

A  conveyance  of  mortgaged  land  by  the 
mortgagor  to  the  mortgagee  extinguishes  the 
mortgage;  Lyman  v.  Gedney,  114  111.  388,  29 
X.  E.  2S2,  55  Am.  Rep.  871.  Taking  a  note 
for  the  amount  due  does  not  deprive  a  claim- 
ant of  his  right  to  a  lien,  but  merely  sus- 
pends its  enforcement  until  the  note  is  pay- 
able; Keogh  Mfg.  Co.  v.  Eisenberg,  7  Misc. 
79,  27  N.  Y.  Supp.  356. 

See  Co.  Litt.  147  b;  Morris  v.  Brady,  5 
Whart.  (Pa.)  541;  Derby  Rank  v.  Landon,  3 
Conn.  62;  Jackson  v.  Shaffer,  11  Johns.  (N. 
Y.)  513;  Cattel  v.  Warwick,  6  X.  J.  L.  190; 
McMurphy  v.  Minot,  4  X.  II.  251;  Caldwell 
v.  Fulton,  31  Pa.  475,  72  Am.  Dec.  700;  Bos- 
ton &  P.  R.  Corp.  v.  Doherty,  154  Mass.  314, 
28  N.  E.  277;  Fitzpatrick  v.  R.  R.,  S4  Me. 
33,  24  Atl.  432;  Sowles  v.  Witters,  54  Fed. 
568;  I.  Smith  &  Son  Co.  v.  Parsons,  37  Neb. 
677,  56  N.  W.  320. 

EXTINGUISHMENT  OF  COMMON.  Loss 
of  the  right  to  have  common.  This  may  hap- 
pen from  various  causes ;  by  the  owner  of 
the  common  right  becoming  owner  of  the 
fee;"by  severance  from  the  land;  by  release; 
by  approvement;  2  Steph.  Com.  41;  Co.  Litt. 
280 ;  1  Bacon,  Abr.  628 ;  Cro.  Eliz.  594. 

EXTINGUISHMENT        OF        COPYHOLD. 

This  takes  place  by  a  union  of  the  copyhold 
and  freehold  estate  in  the  same  person ;  also 
by  an  act  of  the  tenant  showing  an  intention 
not  to  hold  any  longer  of  his  lord ;  Ilutt.  81 ; 
Cro.  Eliz.  21 ;  Wms.  R.  P.  2S7 ;  Watk.  Copyh. 

EXTINGUISHMENT  OF  A  DEBT.  De- 
struction of  a  debt.  This  may  be  by  the 
creditor's  accepting  a  higher  security ;  1 
Salk.  304;  Davidson  v.  Kelly,  1  Md.  492; 
Brewer  v.  Branch  Bank,  24  Ala.  439.  A 
judgment  recovered  extinguishes  the  original 
debt;  Gihbs  v.  Bryant,  1  Pick.  (Mass.)  118. 
A  trust  deed  given  to  secure  the  payment  of 
a  bond  is  not  affected  by  the  rendition  of  a 
judgment  on  the  bond,  since  the  original 
debt  is  not  thereby  merged,  but  only  the 
form  of  the  evidence  of  the  debt  charged ; 
Gibson  v.  Green's  Adm'r,  SO  Va.  524,  16  S. 
E.  661,  37  Am.  St.  Rep.  8SS.  A  debt  evidenc- 
ed by  a  note  may  be  extinguished  by  a  sur- 
render of  the  note;  Bryant  v.  Smith,  10 
Cush.  (Mass.)  169;  Albert's  Ex' is  v.  Zleg- 
ler's  Ex'rs,  29  Pa.  50;  Sherman  v.  Sherman, 
3  Ind.  337.  As  to  the  effect  of  payment  in 
extinguishing  a  debt,  see  PAYMENT. 

EXTINGUISHMENT  OF  RENT.  A  de- 
struction of  the  rent  by  a  uniun  of  the  title 
to  the  lands  and  the  rent  in  the  same  person. 
Tcrmcs  de  la  Ley;  Cowell ;  3  Sharsw.  Bla. 
Com.  325,  note.  A  ground  rent  in  Pennsyl- 
vania is  usually  extinguished  by  a  convey- 
ance thereof  from  the  owner  of  the  ground 
rent  to  the  terre-tenant. 


EXTINGUISHMENT  OF   WAYS.     Destruc- 
tion of  a  right  of  v*  ed  usually  by  a 
purchase  of  the  close  over  which  it  lit 
the  owner  of  the   right  of  way.     2   Washb. 
R.  P. 

EXTORSIVELY.  A  technical  word  used 
in  indictments  for  extortion. 

When  a  person  is  charged  with  • 
ly  taking,  the  very  import  of  the  word  shows 
that  he  is  not  acquiring  of  his 

own;  4  Cox,  Cr.   Cas.  387.     in  North   i 
Una  the  crime  may  be  Charged  without  using 
this  word;  State  v.  Dickens,  2  X.  C.  •■ 

EXTORTION.  •  The  unlawful  taking  by 
any  officer,  by  color  of  his  office,  of  any  mon- 
ey or  thing  of  value  that  is  not  due  to  him, 
or  more  than  is  due,  or  before  it 
Bla.  Com.  141;  Com.  v.  Saulsbury,  152  Pa. 
554,  25  Atl.  G10;  1  Hawk.  PL  I  s.  1  ; 

1  Russ.  Cr.*  144;  2  Bish.  Cr.  L.  390;  U. 
Deaver,  14  Fed.  595. 

At  common  law,  any  oppression  by  color 
of  right;  but  technically  the  taking  of  mon- 
ey by  an  officer,  by  reason  of  his  office,  where 
none  at  all  was  due,  or  when  it  was  not  yet 
due.  The  obtaining  of  money  by  force  or 
fear  is  not  extortion;  People  v.  Baroi 
Gl  Hun  571,  16  X.  Y.  Supp.  430;  Whart  Cr. 
I..  833. 

In  a  large  sense  the  term  includes  any  oppression 
under  color  of  right ;  but  it  is  generally  and  con- 
stantly used  in  the  more  limited  technical  sense 
above  given. 

The  incumbent  of  an  office,  which  it  was 
attempted  to  create  by  an  unconstitu 
statute,  cannot  be  guilty  of  extortion,  as  he 
is  neither  a  de  jure  nor  a  de  facto  officer; 
Kitby  v.  State,  57  X.  J.  L.  320,  31  Atl.  21& 

To  constitute  extortion,  there  must  be  the 
receipt  of  money  or  something  of  value;  the 
taking  a  promissory  note  which  is  void  is  not 
sufficient    to    make    an    extortion;     Coin.    v. 
Cony,  2  Mass.  523;  Com.  v.  Pease,  1G  Mass. 
93.     See  Bacon,  Abr.;  Co.  Litt.  168.     It 
tortion  and  oppression  for  an  officer  to  take 
money  for  the  performance  of  his  duty, 
though  it  be  in  the  exercise  of  a  disc: 
ary    power;    2    Burr.    '.'27.      See    Peo; 
Wnaley,  6  Cow.  661;  Ilelser  v.   P<>tt.  3  Pa. 
183;  Com.  v.  Saulsbury,  152  Pa.  554,  2.".  A:;. 
610;   Com.  v.   Bagley,   7   Pick.    (Mass.)    27'.': 
4  Cox.   Cr.   Cas.  387.     See  Brackenrid 
State,  27  Tex.  App.  513,   11   S.   W.  630,    1    I.. 
i;.   a    360;    People  v.  Barondess,  133  X.  Y. 
049,  31  X.   E.  240. 

EXTRA-DOTAL    PROPERTY.     In    Louisi- 
ana this  term  designates  that  property  which 
forms   no    part   of   the    dowry    of  a    woman, 
and  which  is  also  called  paraphernal  pi 
;y.     Civ.   Code,   a:-;.  - 

EXTRA-JUDICIAL.  That  which  does  not 
belong  to  the  judge  or  his  jurisdiction,  not- 
withstanding  which  he  takes  cognizance  of  it. 
Extra-judicial  judgments  and  acts  air 
lutely  void.  See  Coram  Xon  Judice;  Merliu, 
1 1.,  Exces  dc  Pouvoir, 


EXTRA  QUATUOR  MARIA 


11G8 


EXTRADITION 


EXTRA  QUATUOR  MARIA  (Lat.  beyond 
four  seas).  Out  of  the  realm.  1  Bla.  Com. 
157.     See  Beyond  Sea. 

EXTRA  SERVICES.  When  used  with  ref- 
erence to  officers  it  should  be  construed  to 
embrace  all  services  rendered  by  such  for 
which  no  compensation  is  given  by  law. 
Board  of  Com'rs  of  Miami  Co.  v.  Blake,  21 
Ind.  32. 

EXTRA  TERRITORIUM.  Beyond  or  out- 
side of  the  territorial  limits  of  a  state.  Milne 
v.  Moreton,  6  Binn.  (Pa.)  353,  6  Am.  Dec.  466. 

EXTRA  VIAM.  Out  of  the  way.  When, 
in  an  action  of  trespass,  the  defendant 
pleads  a  right  of  way,  the  defendant  may  re- 
ply extra  viam,  that  the  trespass  was  com- 
mitted beyond  the  way,  or  make  a  new  as- 
signment.    16  East  343,  349. 

EXTRACT.  A  part  of  a  writing.  In  gen- 
eral, an  extract  is  not  evidence,  because  the 
whole  of  the  writing  may  explain  the  part 
extracted,  so  as  to  give  it  a  different  sense; 
but  sometimes  extracts  from  public  books 
are  evidence,  as  extracts  from  the  registers 
of  births,  marriages,  and  burials,  kept  ac- 
cording to  law,  when  the  whole  of  the  mat- 
ter has  been  extracted  which  relates  to  the 
cause  or  matter  in  issue. 

EXTRADITION.  (Lat.  ex,  from,  traditio, 
handing  over) .  The  surrender  by  one  sover- 
eign state  to  another,  on  its  demand,  of  per- 
sons charged  with  the  commission  of  crime 
within  its  jurisdiction,  that  they  may  be 
dealt  with  according  to  its  laws;  the  sur- 
render of  persons  by  one  federal  state  to  an- 
other, on  its  demand,  pursuant  to  their  fed- 
eral  constitution  and  laws. 

Without  treaty  stipulations.  Public  ju- 
rists are  not  agreed  as  to  whether  extradi- 
tion, independent  of  treaty  stipulations,  is  a 
matter  of  imperative  duty  or  of  discretion 
merely.  Some  have  maintained  the  doctrine 
that  the  obligation  to  surrender  fugitive 
criminals  is  perfect,  and  the  duty  of  fulfill- 
ing it  is,  therefore,  imperative,  especially 
where  the  crimes  of  which  they  are  accused 
affected  the  peace  and  safety  of  the  state; 
but  others  regard  the  obligation  as  imperfect 
in  its  nature,  and  a  refusal  to  surrender 
such  fugitives  as  affording  no  ground  of  of- 
fence. Of  the  former  opinion  are  Grotius, 
Heineccius,  Burlamaqui,  Vattel,  Rutherforth, 
Schmelzing,  and  Kent;  the  latter  opinion  is 
maintained  by  Puffendorf,  Voet,  Martens, 
Kliiber,  Leyser,  Kluit,  Saalfeld,  Schmaltz, 
Mittermeyer,  Heffter,  and  Wheaton. 

Except  under  the  provisions  of  treaties, 
the  delivery  by  one  country  to  another  of 
fugitives  from  justice  is  a  matter  of  comity, 
not  of  obligation;  TJ.  S.  v.  Rauscher,  119  U. 
S.  407,  7  Sup.  Ct.  234,  30  L.  Ed.  425. 

Many  nations  have  practised  extradition 
without  treaty  engagements  to  that  effect, 
as  the  result  of  mutual  comity  and  conven- 
ience;   others    have    refused.      The    United 


States  has  always  declined  to  surrender 
criminals  unless  bound  by  treaty  to  do  so ; 
1  Kent  39  n. ;  1  Opin.  Attys.  Gen.  511;  6 
id.  85,  431 ;  People  v.  Curtis,  50  N.  Y.  321,  10 
Am.  Rep.  483 ;  Holmes  v.  Jennison,  14  Pet 
(U.  S.)  540,  10  L.  Ed.  579;  Ex  parte  Holmes, 
12  Vt.  631.  The  existence  of  an  extradition 
treaty  does  not  prohibit  the  surrender  by  ei- 
ther country  of  a  person  charged  with  a 
crime  not  enumerated  in  the  treaty ;  Ex 
parte  Foss,  102  Cal.  347,  36  Pac.  669,  25  L. 
R.  A.  593,  41  Am.  St.  Rep.  182.  No  state 
has  an  absolute  right  to  demand  of  another 
the  delivery  of  a  fugitive  criminal,  though 
it  has  what  is  called  an  imperfect  right,  but 
a  refusal  to  deliver  the  criminal  is  no  just 
cause  of  war.  Per  Tilghman,  C.  J.,  in  Com. 
v.  Deacon,  10  S.  &  R.    (Pa.)   125. 

Under  treaty  stipulations.  Tbe  sovereign- 
ty of  the  United  States,  as  it  respects  foreign 
states,  being  vested  by  the  constitution  in 
the  federal  government,  it  appertains  to  it 
exclusively  to  perform  the  duties  of  extradi- 
tion which,  by  treaties,  it  may  assume; 
Holmes  v.  Jennison,  14  Pet.  (U.  S.)  540,  10 
L.  Ed.  579 ;  U.  S.  v.  Rauscher,  119  U.  S.  407, 
7  Sup.  Ct.  234,  30  L.  Ed.  425 ;  and,  to  enable 
the  executive  to  discharge  such  duties,  con- 
gress passed  the  acts  of  Aug.  12,  1848,  July 
12,  1889,  and  June  6,  1900.  The  general  gov- 
ernment alone  has  the  power  to  enact  laws 
for  the  extradition  of  foreign  criminals.  It 
possesses  that  power  under  the  treaty  power 
in  the  constitution ;  Holmes  v.  Jennison,  14 
Pet.  (U.  S.)  540,  10  L.  Ed.  579;  People  v. 
Curtis,  50  N.  Y.  321,  10  Am.  Rep.  483 ;  In  re 
De  Giacomo,  12  Blatch.  391,  Fed.  Cas.  3,747. 

While  a  violation  of  an  extradition  treaty 
with  Italy  might  render  the  treaty  denounce- 
able  by  the  United  States,  it  does  not  ren- 
der it  void  and  of  no  effect.  The  refusal  of 
Italy  to  surrender  its  nationals  has  not  had 
the  effect  of  abrogating  the  treaty  but  of 
merely  placing  the  government  in  the  posi- 
tion of  having  the  right  to  denounce  it; 
Charlton  v.  Kelly,  229  U.  S.  447,  33  Sup.  Ct. 
945,  57  L.  Ed.  . 

In  the  absence  of  a  treaty,  it  has  been 
said  the  president  has  no  power  as  well  as 
no  duty  to  surrender  a  fugitive;  Ex  parte 
McCabe,  46  Fed.  363,  12  L.  R.  A.  589.  As 
to  whether  congress  has  this  power  was  said 
in  Neely  v.  Henkel,  180  U.  S.  109,  21  Sup.  Ct. 
302,  45  L.  Ed.  448,  to  be  an  undecided  ques- 
tion. It  was  there  said  to  be  competent  for 
congress  to  enforce  or  give  efficacy  to  the 
provisions  of  the  treaty  between  the  U.  S. 
and  Spain  with  respect  to  Cuba,  and  that 
the  act  of  June  6,  1900,  providing  for  the 
extradition  of  criminals  in  certain  cases  "to 
foreign  countries  or  territories"  occupied  by 
or  under  the  control  of  the  United  States 
was  constitutional.  See  14  Harv.  L.  Rev. 
607. 

Treaties  have  been  made  between  the  Unit- 
ed States  and  many  foreign  powers  for  the 


EXTRADITION 


11G9 


EXTRADITION 


mutual  surrender  of  persons   charged   with 

certain  crimes.  These  treaties  may  be  found 
in  full  in  the  United  States  Statutes  at 
Large,  in  2  Moore  on  Extradition  1072;  I  las- 
well,  Treaties,  etc.,  U.  S. ;  see  4  Moore,  Int. 
L.  Dig. 

The  United  States  interstate  extradition 
laws  extend  to  Porto  Rico;  People  v.  Bing- 
ham, 211  U.  S.  4GS,  29  Sup.  Ct.  190,  53  L.  Ed. 
28G;  and  to  any  portion  of  the  country  not 
within  the  limits  of  a  state,  but  organized 
under  the  laws  of  congress,  with  an  execu- 
tive, legislative  and  judicial  system  of  its 
own;  In  re  Lane,  135  U.  S.  443,  10  Sup.  Ct. 
7G0,  34  L.  Ed.  219 ;  this  does  not  include  the 
Cherokee  Nation ;  Ex  parte  Morgan,  20  Fed. 
298,  approved  in  People  v.  Bingham,  211  U. 
S.  4G8,  29  Sup.  Ct.  190,  53  L.  Ed.  28G;  nor 
(at  that  time)  Oklahoma ;  In  re  Lane,  135 
U.  S.  443,  10  Sup.  Ct.  7G0,  34  L.  Ed.  219. 

The  general  principle  of  international  law 
is  that  in  all  cases  of  extradition  the  act 
done  on  account  of  which  extradition  is  de- 
manded must  be  considered  a  crime  by  both 
countries.  For  nearly  all  crimes,  the  laws  of 
the  states,  and  not  the  enactments  of  con- 
gress, must  be  looked  to  for  the  definition  of 
the  offence;  Wright  v.  Ilcnkel,  190  U.  S.  40, 
23  Sup.  Ct.  781,  47  L.  Ed.  94S;  Pettit  v. 
Walshe,  194  U.  S.  210,  24  Sup.  Ct.  057,  48 
L.  Ed.  938.  Where  a  British  fugitive  was 
demanded  in  New  York,  and  the  British  and 
New  York  statutes  both  covered  the  publica- 
tion of  fraudulent  statements  by  corporate 
officers,  it  was  held  that  the  two  statutes 
were  substantially  analogous  under  an  ex- 
tradition treaty  relating  to  fraud  by  corpo- 
rate officers;  Wright  v.  Henkel,  190  U.  S. 
40,  23  Sup.  Ct.  781,  47  L.  Ed.  94S. 

In  the  construction  and  carrying  out  of 
such  treaties,  the  ordinary  technicalities  of 
criminal  proceedings  are  applicable  only  to 
a  limited  extent.  Proceedings  for  surrender 
simply  demand  of  the  accused  that  he  shall 
do  what  all  good  citizens  are  required  and 
ought  to  be  willing  to  do,  viz.  submit  them- 
selves to  the  law  of  their  country.  Care 
should  be  taken  that  the  treaty  be  not  made 
a  pretext  for  collecting  private  debts,  wreak- 
ing individual  malice,  or  forcing  the  surren- 
der of  political  offenders ;  but  where  the  pro- 
ceeding is  manifestly  taken  in  good  faith,  a 
technical  non-compliance  with  some  formali- 
ty should  not  be  allowed  to  stand  in  the  way 
of  a  faithful  discharge  of  our  obligations; 
Grin  v.  Shine,  187  U.  S.  181,  23  Sup.  Ct  98, 
47  L.  Ed.  130. 

When  a  person  is  held  in  custody  as  a  fugi- 
tive from  justice  under  an  extradition  war- 
rant in  proper  form  and  showing  upon  its 
face  all  that  is  required  by  law  to  be  shown. 
he  should  not  be  discharged  from  custody 
until  it  is  made  clearly  to  appear  that  he  is 
not  a  fugitive  from  justice  within  the  mean- 
ing of  the  constitution  and  laws  of  the  Unit- 
ed States ;  People  v.  Pease,  207  U.  S.  100,  2S 
Bouv.— 74 


Sup.  Ct.  58,  52  L.  Ed.  121 ;  Ex  parte  Massee, 
95  S.  C.  315,  79  S.  E.  97. 

The  extradition  act  of  Canada  pr 
that   a    pi -i  .11   be   surrendered   only 

upou  such  evido  riminality  as  would, 

under  the  Canadian  law,  justify  his  commit- 
tal for  trial  if  the  crime  had  been  com: 
in  Canada.     Canadian  law  should  determine 
whether  the  act   alleged  constituti 
the  extradition  crimes;  6  P..  &  S.  '<-'!;  4  V. 
C.   P.    R.    215.      The    further  as    to 

whether  the  act  must  also  be  Bhown  to  be  a 
crime  according  to  the  laws  of  the  demand- 
ing country  was  raised  but  not  decided  in  .'II 
Can.  L.  J.  594. 

The  preliminary  examination  of  a  ; 
sought  to  be  extradited  under  the  tri 
of  August  9,  1842,  and  July  12,  tween 

the  United  States  and  Great  Britain  on  a 
conviction  of  murder,  must  be  had  in  the 
state  where  he  was  arrested,  in  view  of  the 
tenth  article  of  the  earlier  treaty  providing 
that  the  alleged  fugitive  criminal  shall  be 
arrested  and  delivered  up  only  upon  such 
evidence  of  criminality  as,  according  to  the 
laws  of  the  place  where  he  is  found,  would 
justify  his  arrest  and  commitment  for  trial 
if  the  crime  had  been  committed  there,  and 
of  the  proviso  in  the  sundry  civil  appropria- 
tions act  of  August  IS,  1894,  by  which  it  is 
made  the  duty  of  a  marshal  arresting  a  per- 
son charged  with  any  offence  to  take  him 
before  the  nearest  United  States  commis- 
sioner, or  judicial  officer  having  jurisdiction, 
for  a  hearing,  commitment,  or  taking 
for  trial,  notwithstanding  those  parts  of  the 
act  of  August  12,  1848,  ,and  of  R.  S.  g  5270, 
which  provide  for  bringing  the  accused  in  ox- 
tradition  proceedings  before  the  justice, 
judge  or  commissioner  who  issued  the  war- 
rant of  arrest;  Pettit  v.  Walshe.  194  U.  S. 
207).  24  Sup.  Ct.  657,  48  L.  Ed. 

Desertion  from  a  foreign  army  or  navy  is 
said  not  to  be  an  extraditable  off  em 
Ilarv.  L.  Rev.  657;  but  in  Tucker  v.  Alexan- 
droff,  183  U.  S.  424.  22  Sup.  Ct  195,  46  I.. 
Ed.  264,  where  the  provisions  of  the  treaty 
with  Russia  for  the  extradition  of  deserters 
from  ships  of  war  and  merchant  vessels 
were  under  consideration,  it  was  held  that 
a  deserting  seaman  might  be  extradited, 
though  the  vessel  to  which  he  had  been  as- 
signed was  in  the  course  of  building  and 
had  not  yet  been  accepted  by  the  Russian 
government. 

The  treaties  enumerate  the  crimes  for 
which  persons  may  be  surrendered,  and  in 
some  other  particulars  limit  their  own  appli- 
cation. They  also  contain  some  provisions 
relating  to  the  mode  of  procedure;  but,  as 
it  was  doubted  whether  such  stipulations 
had  the  force  ol"  law:  Park.  Cr.  Oas.  108; 
congress  passed  the  act  of  August  I- 
entitled  "An  act  for  giving  effect  to  certain 
treaty  stipulations  between  ibis  and  l 
governments  for  the  apprehension  and  de- 
livery up  of  certain  offenders."     9   Stat   L. 


EXTRADITION 


1170 


EXTRADITION 


302.  This  has  since  been  amended;  and  the 
statutes  on  the  subject  are  found  in  U.  S. 
R.  S.  §§  5270-5277,  as  amended  June  6,  1900. 

These  acts  embody  those  provisions  con- 
tained in  the  treaties  relating  to  the  proce- 
dure, and  contain  others  designed  to  facili- 
tate the  execution  of  the  duty  assumed  by 
treaty. 

The  following  are  the  main  provisions  of 
the  law  relating  to  the  practice :  1.  A  com- 
plaint under  oath  or  affirmation  charging  the 
person  with  the  commission  of  one  of  the 
enumerated  crimes.  2.  A  warrant  may  be 
issued  by  any  of  the  justices  of  the  supreme 
court  or  judges  of  the  several  circuit  or  dis- 
trict courts  of  the  United  States,  or  of  a 
court  of  record  of  general  jurisdiction  of  any 
state,  or  the  commissioners  authorized  so  to 
do  by  any  of  the  courts  of  the  United  States. 
3.  The  pefson  arrested  is  to  be  brought  be- 
fore the  officer  issuing  the  warrant,  to  the 
end  that  the  evidence  of  criminality  may  be 
considered.  4.  Copies  of  the  depositions  up- 
on which  an  original  warrant  in  the  country 
demanding  the  fugitive  may  have  been  grant- 
ed, certified  under  the  hand  of  the  person 
issuing  such  warrant,  and  attested  upon  the 
oath  of  the  party  producing  them  to  be  true 
copies  of  the  original  depositions,  may  be 
received  in  evidence  of  the  criminality  of  the 
person  apprehended.  5.  The  degree  of  evi- 
dence must  be  such  as,  according  to  the 
laws  of  the  place  where  the  person  arrested 
shall  be  found,  would  justify  his  apprehen- 
sion and  commitment  for  trial  if  the  crime 
or  offence  had  there  been  committed.  6.  If 
the  evidence  is  deemed  sufficient,  the  officer 
hearing  it  must  certify  the  same,  together 
with  a  copy  of  all  the  testimony  taken  be- 
fore him,  to  the  secretary  of  state,  and  com- 
mit the  prisoner  to  the  proper  gaol  until  the 
surrender  be  made,  which  must  be  within 
two  calendar  months.  7.  The  secretary  of 
state,  on  the  proper  demand  being  made  by 
the  foreign  government,  orders,  under  his 
hand  and  seal  of  office,  in  the  name  and  by 
authority  of  the  president,  the  person  so 
committed  to  be  delivered  to  such  person 
as  may  be  authorized,  in  the  name  and  on 
behalf  of  such  foreign  government,  to  receive 
him.  8.  The  demand  must  be  made  by  and 
upon  those  officers  who  represent  the  sover- 
eign power  of  their  states.  7  Op.  Attys.  Gen. 
6;  8  id.  521.  By  act  of  Aug.  3,  1882,  it  is 
directed  that  all  extradition  cases  under 
treaties  shall  be  heard  publicly ;  22  Stat.  215. 

The  usual  method  is  for  some  police  officer 
or  other  special  agent,  after  obtaining  the 
proper  papers  in  his  own  country,  to  repair 
to  the  foreign  country,  carry  the  case 
through  with  the  aid  of  his  minister,  receive 
the  fugitive,  and  conduct  him  back  to  the 
country  having  jurisdiction  of  the  crime;  8 
Op.  Attys.  Gen.  521.  In  all  the  treaties  the 
parties  stipulate  upon  mutual  requisitions, 
etc.,  to  deliver  up  to  justice  all  persons  who, 
being    charged   with    crime,    shall    seek    an 


asylum  or  shall  be  found  in  the  territories 
of  the  other.  The  terms  of  the  stipulation 
embrace  cases  of  absence  without  flight  as 
well  as  those  of  actual  flight;  8  Op.  Attys. 
Gen.  306. 

The  treaties  of  the  United  States  do  not 
guarantee  an  asylum  to  a  fugitive  from  any 
foreign  country.  They  only  provide  how  he 
shall  be  deprived  of  an  asylum ;  Ker  v. 
Illinois,  119  U.  S.  436,  7  Sup.  Ct  225,  30  L. 
Ed.  421.  See  as  to  the  right  of  asylum  6 
L.  Mag.  &  Rev.  4th,  262.  If  the  prisoner 
escapes,  he  may  be  retaken  in  the  same  man- 
ner as  any  person  accused  of  any  crime 
against  the  laws  in  force  in  that  part  of  the 
Lmited  States  to  which  he  shall  so  escape 
shall  be  retaken  on  an  escape;  U.  S.  R.  S.  § 
5272.  The  expense  of  the  apprehension  and 
delivery  shall  be  borne  by  the  party  making 
the  requisition. 

Between  the  several  states.  By  art.  iv.  sec. 
ii.  of  the  constitution  of  the  United  States,  it 
is  provided  that  "a  person  charged  in  any 
state  with  treason,  felony,  or  other  crime, 
who  shall  flee  from  justice  and  be  found  in 
another  state,  shall,  on  demand  of  the  exec- 
utive authority  of  the  state  from  which  he 
fled,  be  delivered  up  to  be  removed  to  the 
state  having  the  jurisdiction  of  the  crime." 

The  act  of  congress  of  Feb.  12,  1793,  U.  S. 
R.  S.  §§  5278,  5279,  prescribed  the  mode  of 
procedure  in  such  cases.  It  requires,  on  de- 
mand of  the  executive  authority  of  a  state  and 
production  of  a  copy  of  an  indictment  found 
or  an  affidavit  made  before  a  magistrate 
charging  the  person  demanded  with  treason, 
felony,  or  other  crime,  certified  as  authentic 
by  the  governor  or  chief  magistrate  of  the 
state  from  whence  the  person  so  charged 
fled,  that  the  executive  authority  of  the 
state  or  territory  to  which  such  person  shall 
have  fled  shall  cause  the  person  charged  to 
be  arrested  and  secured,  and  notice  of  the 
arrest  to  be  given  to  the  executive  authority 
making  such  demand,  or  to  the  agent  of  such 
authority  appointed  to  receive  the  fugitive, 
and  cause  the  fugitive  to  be  delivered  to  such 
agent  when  he  shall  appear;  but  if  such 
agent  do  not  appear  within  six  months,  the 
prisoner  shall  be  discharged.  It  further  pro- 
vides that  if  any  person  shall  by  force  set 
at  liberty  or  rescue  the  fugitive  from  such 
agent  while  transporting  the  fugitive  to  the 
state  or  territory  from  which  he  fled,  the 
person  so  offending  shall,  on  conviction,  be 
fined  not  exceeding  five  hundred  dollars  and 
be  imprisoned  not  exceeding  one  year,  and 
that  all  costs  or  expenses  incurred  in  the 
apprehending,  securing,  and  transmitting 
such  fugitive  shall  be  paid  by  the  state  or 
territory  making  the  demand.  U.  S.  Rev. 
Stat  §  5278-9. 

In  the  execution  of  the  obligation  imposed 
by  the  constitution,  the  following  points  de- 
serve attention : — 

The  crime,  other  than  treason  or  felony, 
for    which    a    person    may    be    surrendered. 


1171 


4Dmo* 

Some  difference  of  opinion 

this  subject,  owing  to  some  di\._ 

criminal  laws  of  the  several  states3,  ^  on .  i 

better  opinion  appears  to  be  that  the  ithe    the  faUesf*°n  o 

of  the  constitution  extend  to  all  acts  whicuj        ac'°  of  the       '  "'  and  i.s  ... 

1  <"i  ;,, „.,.-.    .faPers  to  i„..*]**y8 


ia 


ZXTli 


At>lTl 


Otf 


by  the  laws  of  the  state  where  committed 
are  made  criminal ;  1  Kent  42 ;  Johnston 
v.  Riley,  13  Ga.  97;  In  re  Fetter,  23  N.  J.  L. 
311,  57  Am.  Dec.  382;  Kentucky  v.  Dennison, 
2-1  How.  (U.  S.)  107,  16  L.  Ed.  717;  People 
v.  Brady,  56  N.  Y.  1S7.  The  word  "crime" 
embraces  every  species  of  indictable  offence; 
Kentucky  v.  Dennison,  24  How.  (U.  S.)  99, 
16  L.  Ed.  717;  including  an  act  not  criminal 
at  the  time  the  constitution  was  adopted  but 
made  so  afterwards;  Howe  v.  Treasurer,  37 
N.  J.  L.  147 ;  People  v.  Brady,  56  N.  T.  182 ; 
and  an  act  which  is  criminal  under  the  law 
of  the  state  from  which  the  accused  has  fled, 
but  is  not  so  under  the  law  of  the  state  into 
which  he  has  fled;  Kentucky  v.  Dennison, 
24  How.    (U.  S.)  103,  16  L.  Ed.  1717. 

That  the  courts  of  the  asylum  state  have 
jurisdiction  to  pass  upon  the  sufficiency  of 
the  requisition  papers  has  been  held ;  Jones 
v.  Leonard,  50  Ia.  110,  32  Am.  Rep.  116 ;  Peo- 
ple v.  Hyatt,  172  N.  Y.  176,  64  N.  E.  825,  60 
L.  R.  A.  774,  92  Am.  St.  Rep.  706,  aflirmed 
Hyatt  v.  New  York,  1S8  U.  S.  691,  23  Sup.  Ct. 
456,  47  L.  Ed.  657 ;  In  re  Waterman,  29  Nev. 
288,  89  Pac.  291,  11  L.  R.  A.  (N.  S.)  424,  13 
Ann.  Cas.  926 ;  that  the  accused  should  be 
permitted  to  show  that  the  indictment  or  af- 
fidavit accompanying  the  requisition  charged 
no  crime  under  the  laws  of  the  demanding 
state,  see  Barriere  v.  State,  142  Ala.  72,  39 
South.  55 ;    Ex  parte  Slauson,  73  Fed.  666. 

In  Hyatt  v.  New  York,  188  U.  S.  691,  23 
Sup.  Ct.  456,  47  L.  Ed.  657,  it  is  said:  Upon 
the  executive  of  the  state  in  which  the  ac- 
cused is  found  rests  the  responsibility  of  de- 
termining whether  he  is  a  fugitive  from  the 
demanding  state.  He  does  not  fail  in  duty  if 
he  makes  it  a  condition  precedent  to  the  sur- 
render of  the  accused  that  it  be  shown  to  him 
by  competent  proof  that  the  accused  is  in 
fact  a  fugitive  from  the  justice  of  the  de- 
manding state;  and  in  People  v.  Brady,  50 
N.  Y.  1S2,  that  the  courts  have  jurisdiction  to 
interfere  by  habeas  corpus,  and  to  examine 
the  grounds  upon  which  an  executive  war- 
rant for  the  apprehension  of  an  alleged  fugi- 
tive from  justice  from  another  state  is  is- 
sued, and  in  case  the  papers  are  defective  and 
insufficient,  to  discharge  the  prisoner. 

It  must  appear  to  the  governor  of  the  asy- 
lum state,  before  he  can  lawfully  comply 
with  it:  First,  that  the  person  demanded  is 
substantially  charged  with  a  crime  against 
the  laws  of  the  demanding  state,  by  an  Indict- 
ment or  an  affidavit  certified  as  authentic  by 
the  governor  of  the  demanding  state;  and, 
second,  that  the  person  demanded  is  a  fugi- 
tive from  the  justice  of  the  demanding  state; 
Roberts  v.  Reilly,  116  U.  S.  SO,  6  Sup.  Ct.  291, 
29  L.  Ed.  544.    The  first  of  these  prerequisites 


iur  ^ 

may 


appJi 


&?Cti0*  ** 


t  °?en  on 

or  whothe,.,Jioj  '  •    ru,  under  a 

questions  not     .  }h"  ."_*■  a 


Judicial 

Ir,,-' 


decisions,  nor  by  a.  JIo\v  fai.  .       ' 

by  the  Supreme  Courr.by  /,„,       decfsion 

chusetts,  203  U.   S.  l^ll 

L.  Ed.  161;    but  it  is  concede^31*1  <<• 

termination  of  the  fact  by  the  e&iciaj 

the  state  in  issuing  his  warrant  of  t 

upon  a  demand  made  on  that  ground,  \ 

er  the  writ  contains  a  recital  of  an  express 

finding  to  that  effect  or  not,  must  be  r< 

ed  as  sufficient  to  justify  the  removal,  until 

the  presumption  in  its  favor  is  overthrown  ; 

In  re  Reggel,  ill  D.  S.  <;il\  5  Sup.  Ct.  1148, 

29  L.  Ed.  250;    Appleyard  v.  Massach 

203  U.  S.  222,  27  Sup.  Ct.  122,  HI  I,  Ed.  161. 

The  motives  which  prompt  the  govern 
issue  his  warrant  are  held  not  proper  sub- 
jects of  judicial  inquiry;    In   re   Meyer,    12 
Idaho  250,  85  Pac.  897, 12  L.  R.  A.  (N.  S.i  227, 
IIS  Am.  St.  Rep.  214;    Com.  v.  Supori 
ent  of  Philadelphia  County   Prison,  220  Pa. 
401,  69  Atl.  916,  21  L.  R.  A.  (X.  S.)  939.     Ju- 
risdiction to  take  the  action  complained  of  is 
the  test;   id.    The  governor  n< 
independent  proof,  apart  from  the  requisition 
papers,  that  accused  was  a  fugitive  from  jus- 
tice;    Pettibone  v.  Nichols,  203  U.  S.  1 
Sup.  Ct.  Ill,  51  L.  Ed.  148.    When  the  | 
for  whom  a  requisition  is  made  is  in  prison 
in  the  asylum  state  under  conviction  of  crime, 
the  governor  cannot  deliver  him  up ;   Opinion 
of  Justices,  201  Mass.  609,  SO  X.  E.  174,  21 
L.  R.  A.  (N.  S.)  799,  and  note. 

An  indictment  is  not  a  prerequisite  to  ex- 
tradition ;  Pierce  v.  Creecy,  210  I",  s.  ;■ 
Sup.  Ct.  714.  52  L.  Ed.  111.:.  Extraditiou  is 
a  mere  proceeding  in  securing  arrest  and  at- 
tention; a  complaint  before  a  committing 
magistrate  is  a  charge  of  crime;  In  re 
Strauss,  197  U.  S.  324,  25  Sup.  Ct  535,  49  L. 
Ed.  774. 

Indictment,  in  order  to  constitute  a 
sufficient  charge  of  crime  to  warrant  inter- 
state rendition,  need  show  no  more  than  that 
the  accused  was  substantially  I  with 

-Mime;  Pierce  v.  Creecy,  210  U.  8.  387,  28 
Sup.  Ct.  711.  52  L.  Ed.  1113.  if  more  were 
required,  it  would  Impose  upon  courts  at  the 
trial  under  writs  of  habeas  corpus  the  duty 
of  a  critical  examination  of  the  laws  of  the 
states  with  whose  jurisprudence  ami  crim- 
inal procedure  they  can  have  but  a  general 
acquaint:!: 

If  t!  .  is  by  affidavit,  it  should 

be  sufficiently  full  and  explicit  to  justify  ar- 
rest and  commitment  for  hearing:    Ex  parte 
Smith.  3  McLean    121.   Fed.  Cas.   No.   12 
In  re  Heyward,  1  Saudf.  (X.  Y.)  701;    In  re 


EXTRADITION 


1172 


EXTRADITION 


Fetter,  23  N.  J.  L.  311,  57  Am.  Dec.  382; 
State  v.  Patterson,  116  Mo.  505,  22  S.  W.  696 ; 
In  re  Hooper,  52  Wis.  699,  58  N.  W.  741.  The 
demand  must  be  made  by  the  governor  of  the 
state;  Com.  v.  Hall,  9  Gray  (Mass.)  262,  69 
Am.  Dec.  2S5. 

The  accused  must  have  fled  from  the  state 
in  which  the  crime  was  committed;  and  of 
this  the  executive  authority  of  the  state  up- 
on which  the  demand  is  made  should  be  rea- 
sonably satisfied.  This  is  sometimes  done  by 
affidavit.  The  governor  upon  whom  the  de- 
mand is  made  acts  judicially,  so  far  as  to  see 
whether  the  case  is  a  proper  one;  In  re 
Greenough,  31  Vt.  279 ;  but  he  cannot  look 
behind  the  indictment  in  which  the  crime  is 
charged ;  In  re  Voorhees,  32  N.  J.  L.  145 ; 
Taylor  v.  Taintor,  16  Wall.  (U.  S.)  366,  21  L. 
Ed.  2S7.  The  duty  to  surrender  the  fugitive 
is  obligatory ;  Kentucky  v.  Dennison,  24  How. 
(U.  S.)  103,  16  L.  Ed.  717;  Taylor  v.  Taintor, 
16  Wall.  (U.  S.)  370,  21  L.  Ed.  2S7.  But  in 
the  case  of  a  conflict  of  jurisdiction  between 
the  two  states  the  surrender  may  be  post- 
poned; Taylor  v.  Taintor,  16  Wall.  (U.  S.) 
366,  21  L.  Ed.  287 ;  In  re  Briscoe,  51  How.  Pr. 
(N.  Y.)  422;  Com.  v.  Wright,  15S  Mass.  149, 
33  N.  E.  82,  19  L.  R.  A.  206,  35  Am.  St.  Rep. 
473. 

It  is  not  necessary  that  the  party  charged 
should  have  left  the  state  in  which  the  crime 
is  alleged  to  have  been  committed,  after  an 
indictment  found  or  for  the  purpose  of  es- 
caping a  prosecution  anticipated  or  begun ; 
Ex  parte  Brown,  28  Fed.  653;  but  simply 
that  having  committed  a  crime  within  a 
state,  when  he  is  sought  to  be  subjected  to 
its  criminal  process,  he  has  left  its  jurisdic- 
tion and  is  found  within  another  state ;  In  re 
Reggal,  114  U.  S.  642,  5  Sup.  Ct.  1148,  29  L. 
Ed.  250 ;  Renaud  v.  Abbott,  116  U.  S.  287,  6 
Sup.  Ct.  1194,  29  L.  Ed.  629 ;  Streep  v.  U.  S., 
160  U.  S.  12S,  16  Sup.  Ct.  244,  40  L.  Ed.  365 ; 
Moyer  v.  Nichols,  203  TL  S.  221,  27  Sup.  Ct. 
121,  51  L.  Ed.  160 ;  Ex  parte  Brown,  28  Fed. 
653 ;  In  re  Cook,  49  Fed.  833 ;  In  re  White, 
55  Fed.  54,  5  C.  C.  A.  29;  In  re  Bloch,  87 
Fed.  9S1;  Kingsbury's  Case,  106  Mass.  223. 
Whether  the  motive  for  leaving  was  to  es- 
cape prosecution  or  not,  his  return  to  answer 
the  charges  against  him  is  equally  within 
the  spirit  and  purpose  of  the  statute ;  and 
the  simple  fact. that  he  was  not  within  the 
state  to  answer  its  criminal  process,  when 
required,  renders  him  a  fugitive  from  jus- 
tice, regardless  of  his  purpose  in  leaving; 
State  v.  Richter,  37  Minn.  436,  35  N.  W.  9. 
That  the  accused  did  not  believe  he  had  com- 
mitted any  crime  against  the  demanding 
state  will  not  prevent  his  being  a  fugitive 
from  justice ;  Appleyard  v.  Massachusetts, 
203  U.  S.  222,  27  Sup.  Ct.  122,  51  L.  Ed.  161, 
7  Ann.  Cas.  1073  ;  or  that  he  commits  a  crime 
within  a  state  and  then  simply  returns  to 
his  own  home  in  another  state;  Ex  parte 
Swearingen,  13  S.  C.  74 ;   In  re  Mohr,  73  Ala. 


503,  49  Am.  Rep.  63.  He  is  held  not  to  be 
a  fugitive  from  justice  if  he  has  never  been 
in  the  demanding  state,  but  is  alleged  to 
have  obtained  money  by  false  pretences 
through  the  mails ;  State  of  Tennessee  v. 
Jackson,  36  Fed.  258,  1  L.  R.  A.  370.  In  In 
re  Robinson,  29  Neb.  135,  45  N.  W.  267,  8  L. 
R.  A.  39S,  26  Am.  St.  Rep.  378,  the  court  or- 
dered the  discharge  of  a  prisoner  because  he 
had  been  forcibly  brought  into  the  state  with- 
out requisition  papers ;  and  to  the  same  ef- 
fect, State  v.  Simmons,  39  Kan.  262,  18  Pac. 
177.  Crimes  which  are  not  actually,  but  only 
constructively,  committed  within  the  demand- 
ing state  do  not  fall  within  the  class  of  cas- 
es embraced  by  the  constitution  or  acts  of 
congress.  Not  that  the  jurisdiction  to  try 
the  crime  is  lacking,  but  that  no  one  can  in 
any  sense  be  alleged  to  have  fled  from  a  state 
in  which  he  has  never  been  corporally  pres- 
ent since  the  commission  of  the  crime ;  In 
re  Mohr,  73  Ala.  503,  49  Am.  Rep.  63;  In  re 
Reggel,  114  U.  S.  642,  5  Sup.  Ct.  1148,  29  L. 
Ed.  250 ;  State  v.  Hall,  115  N.  C.  811,  20  S. 
E.  729,  28  L.  R.  A.  289,  44  Am.  St.  Rep.  501, 
where  the  constructive  presence  of  a  murder- 
er in  the  state,  where  the  victim  was  struck 
by  a  bullet  fired  across  the  state  boundary, 
was  held  not  suflicient  to  make  him  a  fugi- 
tive from  that  state  when  found  in  the  state 
from  which  the  shot  was  fired. 

In  criminal  cases,  a  forcible  abduction  is 
no  sufficient  reason  why  the  party  should  not 
answer  when  brought  within  the  jurisdiction 
of  the  court  which  has  the  right  to  try  him 
for  such  offence,  and  presents  no  valid  ob- 
jection to  his  trial  in  such  court;  Ker  v.  Ill- 
inois, 119  U.  S.  436,  7  Sup.  Ct.  225,  30  L. 
Ed.  421 ;  Ex  parte  Scott,  9  Barn.  &  C.  446 ; 
State  v.  Smith,  1  Bail.  (S.  C.)  283,  19  Am. 
Dec.  679;  Dows'  Case,  18  Pa.  37.  Although 
it  has  been  frequently  held  that  if  a  defend- 
ant in  a  civil  case  be  brought  within  the  pres- 
ence of  the  court  by  a  trick  or  a  device,  the 
service  will  be  set  aside,  and  he  will  be  dis- 
charged from  custody;  Wells  v.  Gurney,  8 
Barn.  &  C.  769;  Metcalf  v.  Clark,  41  Barb. 
(N.  Y.)  45.  The  law  will  not  permit  a  person 
to  be  kidnapped  or  decoyed  within  the  juris- 
diction for  the  purpose  of  being  compelled  to 
answer  to  a  mere  private  claim,  but  in  crim- 
inal cases  the  interests  of  the  public  override 
that  which  is,  after  all,  a  mere  privilege 
from  arrest ;  In  re  Johnson,  167  U.  S.  120,  17 
Sup.  Ct.  735,  42  L.  Ed.  103. 

As  between  the  states,  fugitives  from  justice 
have  no  right  of  asylum,  in  the  international 
sense ;  and  a  fugitive  who  has  been  returned 
by  interstate  rendition  may  be  tried  for  other 
offences  than  that  for  which  his  return  was 
demanded,  without  violating  any  rights  se- 
cured by  the  constitution  or  laws  of  the  Unit- 
ed States;  Mahon  v.  Justice,  127  U.  S.  700, 
8  Sup.  Ct.  1204,  32  L.  Ed.  283 ;  Lascelles  v. 
Georgia,  148  U.  S.  537,  13  Sup.  Ct.  6S7,  37  L. 
Ed.  549,  affirming  id.,  90  Ga.  347, 16  S.  E.  945, 


EXTRADITION 


1173 


EXTRADITION 


35  Am.  St.  Rep.  216;  State  v.  Glover,  112 
N.  C.  S9C,  17  S.  E.  525  ;  People  v.  Cross,  135 
N.  Y.  5:;<;,  :;2  X.  E.  246,  -"1  Am.  St.  Rep 
Com.  v.  Wright,  158  Mass.  110,  :;:!  N.  E.  82, 
19  L.  R.  A.  206,  •';•".  Am.  St.  Rep.  175  ;  State  v. 
Patterson,  110  Mo.  505,  22  S.  W.  <i'JG :  Water- 
man v.  State,  116  Ind.  51,  IS  N.  E.  63;  State 
v.  Kealy,  SO  la.  01,  5G  X.  W.  2S3 ;  Carr  v. 
State,  104  Ala.  4,  10  South.  150;  State  v. 
Stewart,  00  Wis.  587,  10  X.  W.  420,  50  Am. 
St.  Rep.  388;  Ham  v.  Slate,  4  Tex.  App.  015; 
Williams  v.  Weber,  1  Colo.  App.  101.  28  Pac. 
21;  In  re  Bropby,  2  Ohio  X.  P.  230;  Har- 
land  v.  Territory,  3  Wash.  Ty.  131,  13  Pac. 
453 ;  contra,  In  re  Baruch,  41  Fed.  472 ;  In 
re  Fitton,  45  Fed.  471 ;  State  v.  Hall.  40  Kan. 
.';:;S,  10  Pac.  918,  10  Am.  St.  Rep.  200;  Stale 
v.  Meade,  50  Kan.  000,  44  Pac.  619;  In  re 
Cannon,  47  Mich.  481,  11  X.  W.  280.  In  some 
states  the  courts  have  overruled  former  de- 
cisions, bringing  themselves  in  accord  with 
the  United  States  supreme  court ;  Petry  v. 
Leidigh,  47  Neb.  126,  00  X.  W.  308;  see  In  re 
Robinson,  29  Neb.  135,  45  N.  W.  207,  S  L.  R. 
A.  398,  26  Am.  St.  Rep.  37S ;  In  re  Brophy, 
2  Ohio  X.  P.  230;  Ex  parte  McKnight,  3 
Ohio  X.  P.  255;  id.,  48  Ohio  St.  588,  28  N. 
E.  1034,  14  L.  R.  A.  12S.  See  12  Harv.  L. 
Rev.  532. 

Habeas  corpus  will  not  lie  to  release  from 
custody  one  who  has  been  forcibly  abducted 
from  another  state  and  brought  to  trial  into 
the  jurisdiction  of  a  tribunal  having  jurisdic- 
tion of  the  offence  charged;  Ex  parte  Davis, 
51  Tex.  Cr.  R.  00S,  103  S.  W.  891,  12  L.  R.  A. 
(X.  S.)  225,  14  Ann.  Cas.  522;  and  to  the 
same  effect  Ker  v.  Illinois,  119  U.  S.  436,  7 
Sup.  Ct.  225,  30  L.  Ed.  421,  where  the  pris- 
oner was  kidnapped  in  Peru,  without  any 
pretence  of  authority  under  the  treaty  or 
from  the  United  States,  and  brought  to  Ill- 
inois; his  trial  in  the  state  courts  was  held 
not  to  involve  a  violation  of  the  due  process 
clause  of  the  constitution,  nor  of  the  treaty 
with  Peru.  The  principle  upon  which  the 
judgment  rested  was  that  when  a  criminal  is 
brought  into,  or  is  in  fact  within,  the  custody 
of  the  state,  charged  with  a  crime  against  its 
laws,  the  state  may,  so  far  as  the  constitu- 
tion and  laws  of  the  United  States  are  con- 
cerned, proceed  against  him  for  the  crime, 
and  need  not  inquire  as  to  the  particular 
methods  employed  to  bring  him  into  the  state. 
In  meeting  the  contention  that  the  accused, 
by  virtue  of  the  treaty  with  Peru,  acquired 
by  his  residence  a  right  of  asylum,  it  was 
said:  "There  is  no  language  in  this  treaty,  or 
in  any  other  treaty  made  by  this  country  on 
the  subject  of  extradition  of  which  we  are 
aware,  which  says  in  terms  that  a  party  flee- 
ing from  the  United  States  to  escape  punish- 
ment for  crime  becomes  thereby  entitled  to 
an  asylum  in  the  country  to  which  he  has 
fled."  The  right  of  a  government  voluntarily 
to  give  an  asylum  is  different  from  the  right 
to  demand  security  in  such  asylum.    The  trea- 


ty, so  far  as  it  regulates  tin-  right  of  a 
at  all.  i-  Intended  to  limit  this  right  in  one 
who  is  proved  to  be  a  criminal   fleeing  from 
justice,  so   that  on  proper  demand  and 
ceedings  had  therein  the  tent  of  the 

country  of  the  asylum  -hall  deliver  him  up  to 
the  country  where  the  crime 
To  this  extent,  and  to  this  alone,  the  • 
does  regulate  or  Impose  a   i- 
the  right  of  the  government  of  the  country  of 
the  asylum  to  protect  the  criminal   f i  ■ 
moval  therefrom,     in  Mahon  v.  .i 
U.  S.  7(/U,  8  Sup.  Ct.  12<>p  82  L.  Ed.  2fi 
governor  of  Kentucky  made  a  requisition  up- 
on  the  governor   of    West    VI 
charged   with   t he  crime  of  murder  iii 
tucky,  alleged  to  have  fled  from  its  Juri 
tion    ami    taken    refuge   in    West    Virj 
While  the  two  governors  were  in  a 
ence  on  the  subject,  a  body  of  armed 
without  warrant  or  other  legal   pi 
rested    the    accused    in    West    Virginia    and 
delivered  him  to  the  jailor  of  Pike  county, 
Kentucky,  in  the  courts  of  which  he  stood  In- 
dicted for  murder.     Thereupon  the  gov. 
of  West  Virginia,  on  behalf  of  that  stab 
plied    to    the    district    <  ourt    of    the    1 
States  for  the  Kentucky  district  for  a   writ 
of  habeas  corpus  and  his  return  to  the  juris- 
diction  of  West  Virginia.    Tie-  supreme  court 
held   that  no  mode  is  provided   by   wl 

unlawfully   abducted    from   one   state 
to  another  can  be  restored  to  the 
which  he  was  taken,  if  held  upon  any  pi 
of  law  for  offences  against  the  state  to  which 
■    ii  carried.    The  decision  was  by  a 
divided  court,  but  its  authority  is  said  to  be 

:i the  less  controlling;    Moyer  v.  Ni< 

203  D.  s.  221,  27  Sup.  ct.  121,  51  L.  Ed  L60; 

affirming  In  re  Moyer,  12  Idaho  2" 

897,  12  L.  R.  A.  (X.  s.i  227,  L18  Am.  St  R< 

214.     In  Cook  v.  Hart,  lid   O.    5 

Ct.  40,  36   1..   Ed.  934,  it  was 

cases  of  Ker  v.  Illinois,  119  U.  B.  136,  : 

Ct  225,  .'I"   I  -1.  and  Mahon  V 

127  D.  s.  700,  8  Sup.  Ct  1204,  32  1-.  11.  28S, 

established  two  propositions:     l.  That  that 

court    will  not    interfere    to    relkv 

who    have    been   arrested    and    tak< 

lence  from  one  state  to  another,  '•• 

are    held    under    prO<  from 

the  .  the  latter     tate.     2.  That   the 

m  .if  the  applicability  nf  thl 
to  a   particular  case  is  as  much  th( 
of  the  state  courts  as  a  question  of 
law,  or  of  the  law  of  nations,  as  it  Is  "f  the 
courts  Of  the  Dnited  States.     If  a  f( 

duction  from  another  state  and  • 
within  the  jurisdiction  of  the  Court   holding 
him  is  no  objection  to  his  detention  and  trial 
for  the  offence  charged,  i 

tion  allowed  if  the  abduction  lias  1  • 
plished  under  the  forms  of  law.    The  a<- 
plained  of  does  not  relate  I  traint 

from  which  the  petitioner  seeks  to  he  n 

ed,  but  to  the  means  by  which  he  w 


EXTRADITION 


1174 


EXTRATERRITORIALITY 


within  the  jurisdiction  of  the  court  under 
whose  process  he  is  held ;  Pettibone  v.  Nich- 
ols, 203  U.  S.  192,  27  Sup.  Ct.  Ill,  51  L.  Ed. 
148,  where  conspiracy  was  charged  against 
the  governors  of  the  states  of  Idaho  and 
Colorado  and  other  officers  to  secure  the  pres- 
ence of  Pettibone  in  the  former  state.  It  was 
held  that  the  fundamental  question  was 
whether  a  United  States  circuit  court,  when 
asked  upon  habeas  corpus  to  discharge  a  per- 
son held  in  actual  custody  by  a  state  for  trial 
in  one  of  its  courts,  under  an  indictment 
charging  a  crime  against  its  laws,  can  prop- 
erly take  into  account  the  methods  whereby 
the  state  obtained  such  custody,  and  that 
that  question  had  been  determined  in  the 
negative  iu  Ker  v.  Illinois,  119  U.  S.  436,  7 
Sup.  Ct.  225,  30  L.  Ed.  421,  and  Mahon  v. 
Justice,  127  U.  S.  700,  8  Sup.  Ct.  1204,  32  L. 
Ed.  2S3,  supra. 

See  15  L.  R.  A.  177  n. ;  12  L.  R.  A.  (N.  S.) 
225  n. 

The  constitutional  provision  for  interstate 
rendition  warrants  a  surrender  after  convic- 
tion ;  In  re  Hope,  7  N.  Y.  C.  R.  R.  406,  10  N.  Y. 
Supp.  28 ;  but  after  serving  his  sentence  the 
convict  cannot  be  surrendered  under  a  req- 
uisition from  another  state  until  he  has  had 
reasonable  time  to  return  to  the  state  from 
which  he  was  extradited ;   id. 

Extradition  proceedings  may  be  made  the 
basis  of  a  suit  for  malicious  prosecution;  Cas- 
tro v.  De  Uriarte,  16  Fed.  93. 

See  Fugitive  from  Justice. 

EXTRA  JUDICIUM.  Extra-judicial;  out 
of  the  proper  cause.  Judgments  rendered  or 
acts  done  by  a  court  which  has  no  jurisdic- 
tion of  the  subject,  or  where  it  has  no  juris- 
diction, are  said  to  be  extra-judicial. 

EXTRANEUS.     In    Old    English    Law.     One 

foreign  born ;  a  foreigner.     7  Rep.  16. 

In  Roman  Law.  An  heir  not  bom  in  the 
family  of  the  testator.  Those  of  a  foreign 
state.  The  same  as  alienus.  Vicat,  Yoc. 
Jur. ;   Du  Cange. 

EXTRAORDINARY.  Beyond  or  out  of  the 
common  order  or  rule ;  not  usual,  regular,  or 
of  a  customary  kind  ;  not  ordinary ;  remark- 
able ;  uncommon ;  rare.  Ten  Eyck  v.  Episco- 
pal Church,  29  Abb.  N.  C.  (N.  Y.)  154,  20  N. 
Y.  Supp.  157 ;   The  Titania,  19  Fed.  103. 


EXTRATERRITORIALITY.  A  term  for- 
merly used  to  express  the  exemption  from 
the  obligation  of  the  laws  of  a  state  granted 
to  foreign  diplomatic  agents,  war-ships,  etc. 
Wheaton,  §  224.  It  has  now  been  generally 
replaced  by  the  term  "Exterritoriality"  (q. 
v.).  See  also  Foreign  Judgment  ;  Foreign 
Law  ;  Equity.  The  term  is  used  to  indicate 
jurisdiction  exercised  by  a  nation  in  other 
countries,  by  treaty,  as,  by  the  United  States 
in  China  or  Egypt;  or  by  its  own  ministers 
or  consuls  in  foreign  lands.  Crime  is  said 
to  be  extraterritorial  when  committed  in  a 
country  other  than  that  of  the  forum  in 
which  the  party  is  tried.  See  2  Moore,  Int. 
L.  Dig. 

EXTRAVAGANTES.     In  Canon  Law.     The 

name  given  to  the  constitutions  of  the  popes 
posterior  to  the  Clementines. 

They  are  thus  called,  quasi  vagantes  extra  corpus 
juris,  to  express  that  they  were  out  of  the  canonical 
law,  which  at  first  contained  only  the  decrees  of 
Gratian:  afterwards  the  Decretals  of  Gregory  IX., 
the  Sexte  of  Boniface  VIII.,  the  Clementines,  and 
at  last  the  Extravagantes,  were  added  to  it.  There 
are  the  Extravagantes  of  John  XXII.,  and  the  com- 
mon Extravagantes.  The  first  contain  twenty  epis- 
tles, decretals,  or  constitutions  of  that  pope,  divided 
under  fifteen  titles,  without  any  subdivision  Into 
books.  The  others  are  epistles,  decretals,  or  consti- 
tutions of  the  popes  who  occupied  the  holy  see 
either  before  or  after  John  XXII.  They  are  divided 
into  books,  like  the  decretals. 

EXTREMIS  (Lat.  in  extremity).  When  a 
person  is  sick  beyond  the  hope  of  recovery, 
and  near  death,  he  is  said  to  be  in  extremis. 

A  will  made  in  this  condition,  if  made  with- 
out undue  influence,  by  a  person  of  souud 
mind,  is  valid.  As  to  the  effect  of  declara- 
tions of  persons  in  extremis,  see  Dying  Dec- 
larations; Declarations. 

EYE-WITNESS.  One  who  saw  the  act  or 
fact  to  which  he  testifies.  When  an  eye-wit- 
ness testifies,  and  is  a  man  of  intelligence  and 
integrity,  much  reliance  must  be  placed  on  his 
testimony. 

EY0TT.  A  small  island  arising  in  a  river. 
Fleta,  1.  3,  c.  2,  s.  b;   Bracton,  1.  2,  c.  2.     See 

Island. 

EYRE.  A  journey;  a  court  of  itinerant 
justices.  In  old  English  law  applied  to  the 
judges  who  traveled  on  circuit  to  hold  courts 
in  the  different  counties.  See  Justices  in 
Eyre. 

EYRER.    To  go  about.    See  Eyre. 


[END  OF  VOL.1] 


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